          Supreme Court of Florida
                                  ____________

                                  No. SC19-841
                                  ____________

                             ROBIN LEE ARCHER,
                                  Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  April 23, 2020

PER CURIAM.

      Robin Lee Archer appeals an order of the circuit court denying his

successive motion to vacate his sentence of death under Florida Rule of Criminal

Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the

reasons explained below, we affirm.

      Archer was convicted of first-degree murder, armed robbery, and grand

theft, and he was sentenced to death for the murder. Archer v. State (Archer I),

613 So. 2d 446, 447 & n.1 (Fla. 1993). We affirmed his convictions and the

sentences for armed robbery and grand theft but reversed his death sentence and

remanded for a new penalty phase. Id. After the new penalty phase, Archer was
again sentenced to death, resulting in a 1996 finality date for Archer’s sentence.

Archer v. State (Archer II), 673 So. 2d 17, 18 (Fla.), cert. denied, Archer v.

Florida, 519 U.S. 876 (1996).1 The successive rule 3.851 motion at issue in this

appeal raised three claims, and Archer seeks relief from the circuit court’s denial of

all three. We address each claim in turn.

                         Hurst v. Florida and Hurst v. State

      Archer’s first claim was that his death sentence, which was final in 1996,

violates the Sixth and Eighth Amendments in light of Hurst v. Florida, 136 S. Ct.

616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in State v.

Poole, 45 Fla. L. Weekly S41(Fla. Jan. 23, 2020), clarified, 45 Fla. L. Weekly

S121 (Fla. Apr. 2, 2020). The circuit court correctly ruled that this claim is

procedurally barred because we denied this same claim when Archer raised it in a

petition for a writ of habeas corpus. Archer v. Jones, No. SC16-2111, 2017 WL

1034409 (Fla. Mar. 17, 2017); see Davis v. State, 589 So. 2d 896, 898 (Fla. 1991)

(“Claims that have been previously raised are procedurally barred.”). However,

we also note that there is no Hurst violation in Archer’s sentence, as his guilt-phase

jury found him guilty of the facts that establish the basis for one of the aggravating




        1. The facts of this case, as determined in the appeals from Archer’s original
trial and resentencing, are outlined in Archer v. State, 934 So. 2d 1187, 1191-92
(Fla. 2006).


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factors on which the sentencing court relied to determine that he is eligible for the

death penalty. See Poole, 45 Fla. L. Weekly at S41 (receding from Hurst v. State

“except to the extent that it held that a jury must unanimously find the existence of

a statutory aggravating circumstance beyond a reasonable doubt” and finding no

Hurst violation where the jury found the defendant guilty of a contemporaneous

robbery, among other qualifying offenses). Specifically, Archer’s jury found him

guilty of a contemporaneous armed robbery, and one of the aggravators supporting

his eligibility for a death sentence was that the murder “was committed while the

defendant was engaged in or was an accomplice in the commission of a robbery.”

Archer II, 673 So. 2d at 18 & n.1. For these reasons, the circuit court properly

denied this claim.

                           Elements of “Capital Murder”

      Archer’s second claim was that his sentence violates the Eighth Amendment

and the Due Process Clause of the Fourteenth Amendment to the United States

Constitution and corresponding provisions of the Florida Constitution because this

Court’s statutory construction in Hurst v. State shows that Archer has not been

convicted beyond a reasonable doubt of all the elements of the offense for which

he is under a sentence of death. This claim was based on the contentions that

Hurst v. State recognized (1) that section 921.141, Florida Statutes, as it existed at

the time of the Hurst v. State decision and at the time of Archer’s crime, created an


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offense of “capital murder,” a greater offense than first-degree murder, and (2) that

included in the elements of this offense that must be proven beyond a reasonable

doubt are the determinations that sufficient aggravating circumstances exist to

impose the death penalty, that there are insufficient mitigating circumstances to

outweigh the aggravating circumstances, and that death is the appropriate sentence.

Even if this claim is not procedurally barred, it is without merit, as we explained in

Rogers v. State, 285 So. 3d 872, 885-86 (Fla. 2019). Accordingly, the circuit

court’s denial of this claim was correct.

                            Newly Discovered Evidence

      Archer’s third and final claim alleged newly discovered evidence of

codefendant Clifford Barth’s release from prison on parole, even though the jury

had been told at Archer’s penalty phase that Barth would serve a life sentence for

his role in the murder. The circuit court determined that Archer’s allegation that

Barth was released on parole was factually incorrect, as Barth, a seventeen-year-

old at the time of the crimes, had actually been resentenced due to a change in the

law invalidating most life sentences for juvenile offenders. See Miller v. Alabama,

567 U.S. 460, 479-80 (2012); Montgomery v. Louisiana, 136 S. Ct. 718, 734-37

(2016). Citing our precedent in Farina v. State, 937 So. 2d 612 (Fla. 2006), the

circuit court explained that this resentencing “for purely legal reasons” had no

bearing on Archer’s culpability and therefore would not probably result in a less


                                            -4-
severe sentence for Archer. If Barth was resentenced pursuant to Miller, which

Archer does not argue to be untrue on appeal, the circuit court’s ruling was legally

correct. See Farina, 937 So. 2d at 620.

      Archer argues, however, that the circuit court should have accepted Archer’s

factual allegation that Barth was released on parole as true, as Barth’s resentencing

is not a part of the record in Archer’s case and no evidentiary hearing was held.

However, even accepting the facts as alleged by Archer, he is not entitled to relief.

      Archer’s motion alleged that, after Barth testified against Archer and another

codefendant, he “was permitted to plead guilty to first degree murder and receive a

life sentence in which he would be eligible for parole after 25 years.” Assuming

this fact is true, it has been a matter of public record for decades that Barth was not

given a sentence of life without the possibility of parole, as was communicated to

Archer’s resentencing jury. Therefore, Barth’s actual sentence could have been

discovered by Archer or counsel with the exercise of due diligence long ago, and

the only potentially newly discovered evidence is the fact that he was actually

released on parole. The information that might be relevant to a jury’s assessment

of the sentence Archer should receive is not Barth’s actual release on parole, an

event far removed from the facts of the crime, but the fact that his sentence

provided the opportunity for release after twenty-five years, and that aspect of the

claim is untimely. See Reed v. State, 116 So. 3d 260, 264 (Fla. 2013) (explaining


                                          -5-
that a claim of newly discovered evidence must be brought within one year of the

date on which the claim became discoverable through the exercise of due

diligence). 2

                                   CONCLUSION

       For the foregoing reasons, we affirm the denial of Archer’s successive rule

3.851 motion.

       It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, and MUÑIZ, JJ., concur.
LABARGA, J., concurs in result.

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

An Appeal from the Circuit Court in and for Escambia County,
     W. Joel Boles, Judge - Case No. 171991CF000606XXXAXX

Martin J. McClain of McClain & McDermott, P.A., Wilton Manors, Florida; and
Michael P. Reiter, Venice, Florida,

       for Appellant

Ashley Moody, Attorney General, and Janine D. Robinson, Assistant Attorney
General, Tallahassee, Florida,

       for Appellee




       2. We also note that, below, Archer’s claim concerning Barth’s sentence
included a subclaim under Johnson v. Mississippi, 486 U.S. 578 (1988). Because
Archer did not argue this point in his initial brief, but instead reintroduced it in his
reply brief, he abandoned it. See Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011).


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