          Supreme Court of Florida
                                   ____________

                                  No. SC18-1750
                                  ____________

                               ALPHONSO CAVE,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                   June 11, 2020

PER CURIAM.

      Alphonso Cave appeals an order summarily denying his successive motion

for postconviction relief, which was filed under Florida Rule of Criminal

Procedure 3.851.1 We affirm the denial of relief.

      In 1982, Cave was convicted of the first-degree murder of Frances Slater,

robbery with a firearm, and kidnapping. See Cave v. State, 476 So. 2d 180, 182

(Fla. 1985). He was sentenced to death for Ms. Slater’s murder, and on direct

appeal, we affirmed Cave’s convictions and sentences. Id. at 182-83. The

sentence was later vacated by the federal district court based on ineffective


      1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
assistance of trial counsel during the penalty phase, and this ruling was affirmed by

the federal circuit court. See Cave v. Singletary, 971 F.2d 1513, 1514 (11th Cir.

1992). Cave was given a second sentencing proceeding before a jury. The jury

recommended death by a ten-to-two vote, and the court again imposed a sentence

of death. See Cave v. State, 660 So. 2d 705, 706 (Fla. 1995). This Court vacated

the sentence due to a procedural error in the trial court’s disposition of Cave’s

motion for disqualification of the judge. See id. at 708.

      Cave was given a third sentencing proceeding before a jury, and the jury

recommended death by an eleven-to-one vote. Cave v. State, 727 So. 2d 227, 228

(Fla. 1998). On direct appeal, this Court affirmed Cave’s death sentence. Id. at

232. His sentence of death became final in 1999, when the United States Supreme

Court denied certiorari review. Cave v. Florida, 528 U.S. 841 (1999). We also

affirmed the denial of Cave’s initial postconviction motion. Cave v. State, 899 So.

2d 1042, 1045 (Fla. 2005).

      In 2017, Cave filed a successive postconviction motion claiming that he is

intellectually disabled and entitled to relief based on Hall v. Florida, 572 U.S. 701

(2014), and Moore v. Texas, 137 S. Ct. 1039 (2017); and a claim seeking relief

under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40

(Fla. 2016). In September 2018, the circuit court entered an order summarily

denying Cave’s successive postconviction motion finding that his intellectual


                                         -2-
disability claim is time-barred and that Hurst does not apply retroactively to

Cave’s case.

         First, Cave is not entitled to postconviction relief based on his intellectual

disability claim. As this Court stated in Phillips v. State, 45 Fla. L. Weekly S163,

S165-67 (Fla. May 21, 2020), Hall does not apply retroactively. Accordingly, we

affirm the postconviction court’s summary denial of Cave’s intellectual disability

claim.

         Second, Cave is not entitled to Hurst relief. See State v. Poole, 45 Fla. L.

Weekly S41, S48 (Fla. Jan 23, 2020), clarified, 45 Fla. L. Weekly S121 (Fla. Apr.

2, 2020) (“The jury in Poole’s case unanimously found that, during the course of

the first-degree murder of Noah Scott, Poole committed the crimes of attempted

first-degree murder of White, sexual battery of White, armed burglary, and armed

robbery. Under this Court’s longstanding precedent interpreting Ring v. Arizona

[536 U.S. 584 (2002)] and under a correct understanding of Hurst v. Florida, this

satisfied the requirement that a jury unanimously find a statutory aggravating

circumstance beyond a reasonable doubt.”); Cave, 476 So. 2d at 182 (“Cave was

convicted of one count each of first-degree murder, robbery with a firearm, and

kidnapping.”).

         Accordingly, we affirm the postconviction court’s summary denial of Cave’s

successive postconviction motion.


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          It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LABARGA, J., concurs in result with an opinion.
COURIEL, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.

LABARGA, J., concurring in result.

          This Court has consistently affirmed the denial of relief in cases where the

defendant failed to timely raise an intellectual disability claim based on Atkins v.

Virginia, 536 U.S. 304 (2002). See Bowles v. State, 276 So. 3d 791, 794-95 (Fla.

2019); Harvey v. State, 260 So. 3d 906, 907 (Fla. 2018); Blanco v. State, 249 So.

3d 536, 537 (Fla. 2018); Rodriguez v. State, 250 So. 3d 616, 616 (Fla. 2016).

Similarly, Cave did not timely seek relief under Atkins, and I agree with the

majority that he is not entitled to relief.

          However, I strongly disagree with the majority’s reliance on its decision in

Phillips v. State, 45 Fla. L. Weekly S163 (Fla. May 21, 2020) (holding that Hall v.

Florida, 572 U.S. 701 (2014), is not to be retroactively applied, and receding from

Walls v. State, 213 So. 3d 340 (Fla. 2016)). Consequently, I can only concur in the

result.

          Moreover, I agree that Cave, whose death sentence became final in 1999, is

not entitled to the retroactive application of Hurst v. Florida, 136 S. Ct. 616

(2016), as interpreted in Hurst v. State, 202 So. 3d 40 (Fla. 2016). See Hitchcock


                                              -4-
v. State, 226 So. 3d 216, 217 (Fla. 2017) (holding that Hurst v. Florida as

interpreted in Hurst v. State is not retroactive to defendants whose death sentences

became final before the United States Supreme Court decided Ring v. Arizona, 536

U.S. 584 (2002)).

      However, because the majority relies on State v. Poole, 45 Fla. L. Weekly

S41 (Fla. Jan. 23, 2020), a wrongfully decided opinion to which I strenuously

dissented, I can concur only in the result on this issue as well.

An Appeal from the Circuit Court in and for Martin County,
     Elizabeth Ann Metzger, Judge - Case No 431982CF000352CFBXMX

Joe Hamrick and Rick A. Sichta, Jacksonville, Florida,

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner,
Assistant Attorney General, West Palm Beach, Florida,

      for Appellee




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