          Supreme Court of Florida
                                   ____________

                                   No. SC17-815
                                   ____________

                              ANTHONY MUNGIN,
                                  Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                November 15, 2018

PER CURIAM.

      We have for review Anthony Mungin’s appeal of the postconviction court’s

order denying Mungin’s motion filed pursuant to Florida Rule of Criminal

Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

For the reasons explained below, we affirm the postconviction court’s order.

                         FACTS AND BACKGROUND

      Mungin was convicted of first-degree murder and sentenced to death

following a jury’s recommendation for death by a vote of seven to five. Mungin v.

State, 689 So. 2d 1026, 1028 (Fla. 1995). This Court explained the facts

underlying his conviction and sentence on direct appeal, stating in part:
             Betty Jean Woods, a convenience store clerk in Jacksonville,
      was shot once in the head on September 16, 1990, and died four days
      later. There were no eyewitnesses to the shooting, but shortly after
      Woods was shot a customer entering the store passed a man leaving
      the store hurriedly with a paper bag. The customer, who found the
      injured clerk, later identified the man as Mungin.

Id. This Court affirmed Mungin’s conviction and sentence of death on direct

appeal. Id. His sentence of death became final in 1997. Mungin v. Florida, 522

U.S. 833 (1997). In the more than twenty years since, Mungin has engaged in

extensive postconviction litigation but has not received any relief from his

conviction or death sentence. See Mungin v. State, 141 So. 3d 138, 140 (Fla.

2013); Mungin v. State, 79 So. 3d 726 (Fla. 2011); Mungin v. State, 932 So. 2d

986, 990 (Fla. 2006).

      In January 2017, Mungin filed the successive motion for postconviction

relief at issue in this case seeking relief pursuant to the United States Supreme

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on

remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.

2161 (2017). The postconviction court summarily denied Mungin’s motion.

      This Court stayed Mungin’s appeal pending the disposition of Hitchcock v.

State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017). After this Court

decided Hitchcock, Mungin responded to this Court’s order to show cause arguing

why it should not be dispositive in this case. After reviewing Mungin’s response




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to the order to show cause, as well as the State’s arguments in reply, we ordered

full briefing on Mungin’s non-Hurst claim.

                                    ANALYSIS

      As stated above, Mungin’s sentence of death became final in 1997. Based

on this Court’s precedent, Hurst does not apply retroactively to his sentence of

death. Id. at 217; see Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied,

138 S. Ct. 41 (2017). Thus, Mungin is not entitled to the relief he claims, which

depends upon the retroactive application of Hurst to his sentence of death.

                                  CONCLUSION

      For the reasons explained above, we affirm the postconviction court’s order

denying Mungin’s claims seeking Hurst relief. 1

      It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., concurs in result.
PARIENTE, J., concurs in result with an opinion.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.
NOT FINAL UNTIL THIS TIME PERIOD EXPIRES TO FILE A
REHEARING/CLARIFICATION MOTION AND, IF FILED, DETERMINED.




       1. We do not address Mungin’s motion to disqualify the judge who issued
that order because it was untimely.

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PARIENTE, J., concurring in result.

      I write separately because I continue to adhere to the views expressed in my

dissenting opinion in Hitchcock2 that Hurst 3 should apply retroactively to cases

like Mungin’s. Hitchcock, 226 So. 3d at 220-23 (Pariente, J., dissenting).

      Applying Hurst to Mungin’s sentence of death, I would grant a new penalty

phase based on the jury’s nonunanimous recommendation for death by a vote of

seven to five. Per curiam op. at 1. Further, I agree with Justice Anstead’s

dissenting opinion in Mungin’s direct appeal, arguing that Mungin was entitled to a

retrial because the evidence was insufficient to sustain a finding of premeditation.

Mungin v. State, 689 So. 2d 1026, 1032 (Fla. 1995) (Anstead, J., dissenting).

An Appeal from the Circuit Court in and for Duval County,
     Linda McCallum, Judge - Case No. 161992CF003178AXXXMA

Todd G. Scher of Law Office of Todd G. Scher, P.L., Hollywood, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




      2. Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513
(2017).

      3. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017).

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