           Supreme Court of Florida
                                  ____________

                                  No. SC19-607
                                  ____________

                       ANTHONY JOHN PONTICELLI,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  April 16, 2020

PER CURIAM.

      Anthony John Ponticelli, a prisoner under two sentences of death, appeals

the circuit court’s order denying his successive postconviction motion filed

pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See

art. V, § 3(b)(1).

      Ponticelli’s two sentences of death became final in 1993. Ponticelli v. State,

618 So. 2d 154 (Fla.), cert. denied, 510 U.S. 935 (1993). In seeking relief from his

death sentences below, Ponticelli raised claims predicated on the United States

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

Court’s decision on remand in Hurst v. State, 202 So. 3d 40 (Fla. 2016), from
which we have since receded in State v. Poole, 45 Fla. L. Weekly S41 (Fla. Jan.

23, 2020), clarified, 45 Fla. L. Weekly S121 (Fla. Apr. 2, 2020).

      The United States Supreme Court’s precedent and our precedent foreclose

relief as to Ponticelli’s claims. See McKinney v. Arizona, 140 S. Ct. 702, 707-08

(2020) (holding that, under Hurst v. Florida, “a jury must find the aggravating

circumstance that makes the defendant death eligible,” but that a jury “is not

constitutionally required to weigh the aggravating and mitigating circumstances or

to make the ultimate sentencing decision within the relevant sentencing range,”

and that Hurst v. Florida “do[es] not apply retroactively on collateral review”); see

also Poole, 41 Fla. L. Weekly at S48 (“reced[ing] from Hurst v. State except to the

extent it requires a jury unanimously to find the existence of a statutory

aggravating circumstance beyond a reasonable doubt” as required by Hurst v.

Florida); Hitchcock 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 similarly

situated to Ponticelli). Accordingly, we affirm the circuit court’s denial.

      It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LABARGA, J., concurs in part and dissents in part with an opinion.

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




                                         -2-
LABARGA, J., concurring in part and dissenting in part.

      Ponticelli’s death sentences became final before the U.S. Supreme Court’s

decision in Ring v. Arizona, 536 U.S. 584 (2002). See Ponticelli v. State, 618 So.

2d 154 (Fla.), cert. denied, 510 U.S. 935 (1993). Thus, consistent with this Court’s

decision in Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), I concur in the result.

      I do, however, dissent to the majority’s reliance on State v. Poole, 45 Fla. L.

Weekly S41 (Fla. Jan. 23, 2020), with which I strenuously disagree and which I

conclude was wrongly decided.

An Appeal from the Circuit Court in and for Marion County,
     Robert W. Hodges, Judge - Case No. 421987CF002719CFAXXX

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Patrick Bobek,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellee




                                         -3-
