            Supreme Court of Florida
                                     ____________

                                      No. SC18-7
                                     ____________

                          WILLIAM ROGER DAVIS, III,
                                 Appellant,

                                           vs.

                               STATE OF FLORIDA,
                                    Appellee.

                                   October 25, 2018

PER CURIAM.

         Pursuant to Florida Rule of Criminal Procedure 3.851, counsel for William

Roger Davis, III, a prisoner under sentence of death, appeals the postconviction

court’s order dismissing the postconviction proceedings below but not discharging

counsel. 1 For the reasons explained below, we affirm the postconviction court’s

order.

                                   BACKGROUND

         A jury convicted Davis of first-degree murder, kidnapping, and sexual

battery. Davis v. State, 148 So. 3d 1261, 1264 (Fla. 2014). This Court’s opinion


         1. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
on direct appeal explained the facts of the underlying crimes, which were

committed in October 2009. Id. at 1265-66. Davis did not dispute that he

committed the crimes but “contended at trial that he was insane at the time of these

offenses.” Id. at 1266.

      After a penalty phase, where Davis “testified on his own behalf,” id. at 1268,

the jury recommended a sentence of death by a vote of seven to five. Id. at 1269.

Following the jury’s recommendation, the trial court—finding six aggravating

factors, no statutory mitigation, and six nonstatutory mitigating circumstances—

imposed a sentence of death. Id. at 1269-70. 2


      2. The trial court found the following aggravating factors, assigning each
great weight:
      (1) Davis was on felony probation when the murder was committed;
      (2) Davis was previously convicted of a felony involving the use or
      threat of violence to another person; (3) the murder was especially
      heinous, atrocious, or cruel (HAC); (4) the murder was committed in
      the course of committing sexual battery or kidnapping; (5) the murder
      was committed to avoid arrest; and (6) the murder was committed in a
      cold, calculated, and premeditated manner without any pretense of
      moral or legal justification (CCP).

Davis, 148 So. 3d at 1269-70. As to statutory mitigation, the trial court
“specifically reject[ed] the statutory mitigating circumstance that Davis committed
the murder while under the influence of an extreme mental or emotional
disturbance.” Id. at 1270. As to nonstatutory mitigation, the trial court found the
following six nonstatutory mitigating circumstances and assigned each the noted
weight:

      (1) Davis suffers from long-term chronic mental health problems
      (some weight); (2) Davis can be properly treated with medication
      (some weight); (3) Davis is able to currently adapt to imprisonment

                                        -2-
      On direct appeal, Davis challenged only his sentence of death. See generally

id. Upon review, this Court affirmed Davis’s convictions and sentence of death.

Id. at 1283. His sentence of death became final in January 2015.

      In December 2015, Davis filed a “Motion to Vacate Judgments of

Conviction and Sentence of Death Pursuant to Florida Rule of Criminal Procedure

3.851,” referred to herein as “Davis’s Postconviction Motion.”3 At a status



      (little weight); (4) Davis is able to hold employment (some weight);
      (5) Davis showed remorse for the murder (some weight); and (6)
      Davis showed appropriate courtroom demeanor (substantial weight).

Id.

        3. After several amendments, Davis’s Postconviction Motion claimed that
trial counsel was ineffective for the following reasons: (1) failing to move the court
to redact the irrelevant and highly prejudicial portions of Investigator Hemmert’s
first interview of Davis after the crime; (2) failing to move for a mistrial due to
prosecutorial misconduct during Dr. Golden’s testimony; (3) regarding Davis’s
prior insanity plea in the Tenth Judicial Circuit; (4) stipulating to the introduction
of the certified judgments and sentences setting forth Davis’s prior convictions
during the guilt phase; (5) failing to limit evidence of a prior act for which Davis
was never convicted; (6) failing to impeach a witness for whom the State
knowingly failed to correct false testimony that was material in violation of Giglio
v. United States, 405 U.S. 150 (1972); (7) failing to object to improper victim-
impact evidence regarding the victim’s brother; and (8) failing to object to
prosecutorial misconduct when the State insinuated a motive for Davis’s conduct
after the crime and for failing to ask the court to take judicial notice of the time the
sun set on the day of the crime. The motion further raised the following claims: (9)
“the cumulative effect of the constitutional errors alleged under claims 1 through 8
deprived . . . Davis of his Sixth Amendment right to a fair trial with the effective
assistance of counsel”; (10) the Eighth Amendment of the United States
Constitution prohibits the execution of a mentally ill person; (11) Davis “may be
incompetent at the time of execution, in which case his Eighth Amendment right to
be free from cruel and unusual punishments will be violated”; (12) Davis’s

                                         -3-
conference on January 9, 2017, defense counsel advised the postconviction court

that he had received a letter from Davis indicating that Davis “wished to waive all

of his penalty phase claims,” including his claim to Hurst 4 relief. As a result, the

postconviction court appointed two experts to evaluate Davis’s competency.

       While waiting for the experts to complete their reports, Davis, through

counsel, filed a letter to the postconviction court. Davis’s handwritten letter stated

in full:

              My name is William Roger Davis III . . . .
              As you are no doubt aware, I have expressed my desire to
       waive my penalty phase claims in my pending Rule 3.851 motion.
              One of the main reasons for this is that I am where I asked to be
       [and] believe I am where I should be. I have said that before; it’s
       nothing new.
              After a lot of reflection [and] conversations with family, I have
       decided that I would like to withdraw my entire pending Rule 3.851
       motion. Yes, the entire motion.
              The reasons are very simple. If I were to be given a new trial—
       a big if—it would then subject the [victim’s] family to the whole thing
       all over again. I am not willing to do that. Nor am I willing to subject
       my family to that. Add to that the possibility of a life sentence that I
       don’t want, and the choice is a clear one.
              Thank you for everyone’s time [and] I apologize for any
       inconvenience this may, or may have, caused.


sentence of death is unconstitutional under Hurst v. Florida, 136 S. Ct. 616 (2016),
and Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161
(2017); and (13) Davis’s sentence of death is unconstitutional under the Eighth
Amendment. The postconviction court granted an evidentiary hearing on claims 1-
7. Davis waived his right to be present at the evidentiary hearing.

      4. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct.
2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

                                         -4-
      Later, both experts submitted their reports, each finding that Davis was

competent to proceed with waiving his pending rule 3.851 motion. No objections

were made regarding the experts’ findings. Thus, the postconviction court set a

hearing to review whether Davis’s waiver was valid. See Fla. R. Crim. P.

3.851(i)(6).5

      At the hearing, the following discussion took place regarding Davis’s intent

to dismiss his pending motion:

             THE COURT: So it’s my responsibility to determine that you
      are knowingly, voluntarily, and freely waiving your right to
      postconviction relief, you’ve been represented by Collateral Counsel
      in this matter during the entire course of this process. I’ve been
      apprised of the fact that you no longer want to proceed with your
      postconviction relief matters, and so I have to ask you: Is it your
      decision to waive your pending postconviction motions and discharge
      your counsel?
             MR. DAVIS: I do want to discharge my motion, however, it’s
      my understanding that through the 3.851 motion rule pertaining to
      this particular case that I’m supposed to waive my counsel. My
      counsel as well as CCR Middle are currently . . .
             ....
             MS. AHMED: We’ve talked to Mr. Davis about this for a
      while. His position is to waive his postconviction motions and the
      amended postconviction motion first. However, we’d ask the Court,
      and we spoke to Mr. Davis about keeping us as counsel, after the
      Court makes a determination about Mr. Davis’ motion for purposes
      of, you know, competency down the road, any potential issues or
      federal issues that may come up. So certainly we would certainly ask


      5. Present at the hearing were counsel for the State—Anna Valentini
(Assistant State Attorney), Tayo Popoola (Assistant Attorney General)—counsel
for Davis—Raheela Ahmed (CCRC Middle), Lisa Bort (CCRC Middle), Maria
Perinetti (CCRC Middle)—and Davis.

                                       -5-
      the Court to allow us to stay on as counsel; we think it would be
      appropriate in the long [term].
              THE COURT: And I have no problem with that.
              MR. DAVIS: Okay.
              THE COURT: So if you want me to continue your counsel in
      this case, I’m happy to do that for any issues that may arise in the
      future. But I have to tell you of a lot of things that will be like a
      domino effect and occur once you take these steps should you decide
      to do it. So that’s why it’s very important to go through each one of
      these questions.
              MR. DAVIS: Okay.
              THE COURT: So as far as your postconviction relief motions
      and the waiver of all of the ones that have been filed and are pending
      at this time; are you firm and fixed in that decision?
              MR. DAVIS: Yes, sir.
              THE COURT: Okay. Do you need any more time to talk to
      your lawyers prior to making this decision a finality?
              MR. DAVIS: No, sir.
              ....
              THE COURT: [D]o you understand that by waiving your right
      to a postconviction motion or a hearing on those motions, you are
      forever waiving your right to evidentiary hearing and to present
      eviden[ce] on your [behalf] at such a hearing?
              MR. DAVIS: Yes, sir.
              THE COURT: Do you understand the possible outcomes after
      an evidentiary hearing are that the Court may find you’re entitled to a
      new guilt phase trial or a new penalty phase proceeding or no relief at
      all?
              MR. DAVIS: Yes, sir.
              THE COURT: Do you understand by waiving your
      postconviction motion at this stage you are waiving a right to have
      this Court make a determination on the merits of your motion?
              MR. DAVIS: Yes, sir.

(Emphasis added.)

      As to Davis’s Hurst claim, which was raised in Davis’s Postconviction

Motion, the postconviction court explained that, on the merits, Davis would likely



                                       -6-
be entitled to a new penalty phase, at which the jury would be required to

unanimously make all of the findings necessary to impose a sentence of death. See

Mosley v. State, 209 So. 3d 1248, 1253 (Fla. 2016); Hurst, 202 So. 3d at 44. The

postconviction court made clear to Davis that waiving this claim would be “for all

time.” Davis confirmed that he understood the permanent nature of the waiver and

his intent to proceed with the waiver.

      As to other possible claims and Davis’s attorneys, the following discussion

took place:

             THE COURT: Do you understand that it is permanent and that
      you cannot wake up tomorrow morning or the next year or ten
      minutes after I make a decision or five years from now or at any point
      in time in the future and say that you’ve changed your mind?
             MR. DAVIS: Yes, sir.
             THE COURT: Do you understand that if the Court grants your
      request to discharge you—I’m sorry. I won’t discharge your lawyers,
      but to dismiss your pending motions that you would be found warrant
      eligible, which means the governor of the State of Florida could sign a
      warrant for your execution?
             MR. DAVIS: Yes, sir.
             THE COURT: Do you understand that you are also
      permanently losing your right to take advantage of any changes that
      may occur in the law that could retroactively be applied to your case
      and benefit you?
             . . . I’m not saying you don’t have the right to challenge the
      legality of the way the sentence is carried out. So if there’s challenges
      that come about to the Supreme Court with regard to the medications
      that are used for that purpose or the method by which they perform
      the execution . . . those issues . . . will stay with you to be able to
      challenge those parts of the process.
             ....
             It’s just the question of whether or not you can go forward and
      challenge your sentence of death and your postconviction ability to

                                         -7-
      get . . . postconviction relief at this time and have that hearing, you’re
      giving that up. You’re giving up the right to challenge the guilt phase
      findings, the penalty phase findings, and the sentence of death. It’s
      most likely that when the governor gets to it, he’ll issue the warrant.
      Whatever comes after that as far as warrant relief issues . . . that relate
      to how the execution would be carried out is really always preserved
      constitutionally for you. . . . I would never allow you to waive that.

(Emphasis added.) Consistent with his handwritten letter, Davis confirmed that he

understood the court’s statements and intended to waive claims challenging “the

guilt phase findings, the penalty phase findings, and the [imposition of a] sentence

of death.”

      At several points during the hearing, Davis’s counsel further explained the

rights that Davis did not intend to waive:

             MS. PERINETTI: Thank you, Your Honor, and that’s why I
      wanted to address that. And that’s partly why we want to remain as
      counsel, because just because he doesn’t wish to have a new guilt
      phase or a new penalty phase and that he’s accepting his sentence
      doesn’t mean that he is consenting to the right to be tortured to death
      or anything like that.
             THE COURT: Right.
             ....
             MS. AHMED: [I]f I understand Mr. Davis’ question, he wants
      to know what happens if, as in a Hurst situation or as in Freddy Lee
      Hall’s case—or . . . as in Atkins[6] where they decide you cannot, you
      know execute mentally retarded or intellectually disabled people, and
      then Hurst where we found the—so the question becomes, and I
      explained to Mr. Davis, that when the law changes, we’re going to
      have to see if it is retroactive to his case. If it is, certainly we will be
      counsel, we can make the appropriate pleadings and motions. If it is
      not, we can still fight and litigate should we believe it should be
      retroactive to him. But I did make clear—

      6. Atkins v. Virginia, 536 U.S. 304 (2002).

                                          -8-
             THE COURT: As it pertains to Mr. Davis at the time that issue
      comes up as oppose[d] to what he is today, which is competent to
      proceed is what—
             MS. PERINETTI: Right.
             THE COURT: So I’m not hearing any objection that anyone’s
      disagreeing that he’s competent to proceed with these decisions today,
      what we’re talking about. So I understand you and Mr. Davis
      understands, what I’m hearing is that should at some point in time Mr.
      Davis be found to be—suffer from a severe enough mental illness that
      under the then present law that an execution cannot be performed,
      and that’s the type of issue that he wants to be able to preserve.
             MR. DAVIS: Yes, sir. . . .
             THE COURT: And the methodology of how they carry out the
      execution as well, humaneness and those kinds of issues.
             MR. DAVIS: Sure.
             THE COURT: Of course those are always things that are
      challengeable for the Court as far as I’m concerned to the Court, but
      any other issues and what I meant by motions, writs, petitions, those
      things, the United States Supreme Court and court of appeals under
      the federal court system is all pertaining to the sentence of death and
      the postconviction relief. And the issues with . . . regard to the guilt
      phase, penalty phase or sentence of death; just how they carry it out
      and who you are at that time or whether or not they can lawfully
      execute a person in your condition at that point.
             MR. DAVIS: Yes, sir.

(Emphasis added.) After this explanation, the postconviction court again

confirmed Davis’s intent to proceed with dismissing the pending proceedings.7

Thus, as indicated above, Davis made clear that he intended to retain counsel in

order to bring future claims, namely those related to his execution—claims


      7. The postconviction court also confirmed that Davis was not under the
influence of any medicines, drugs, or alcohol that affected his ability to enter the
waiver and was not threatened, influenced, or bribed to enter the waiver. See
Faretta v. California, 422 U.S. 806 (1975); McGirth v. State, 209 So. 3d 1146,
1156-57 (Fla. 2017).

                                         -9-
challenging the method of execution or claims regarding whether he could

constitutionally be executed. Cf. Atkins, 536 U.S. at 321.

        After the hearing, the postconviction court entered an “Order Dismissing

Defendant’s Motion to Vacate Judgments of Conviction and Sentence of Death

Pursuant to Florida Rule of Criminal Procedure 3.851 and Second Amended

Motion,” referred to herein as “Postconviction Court’s Order,” stating in pertinent

part:

               After conducting an inquiry of the Defendant, the Court finds
        that the Defendant, William Roger Davis, III, has made the decision to
        dismiss his pending Rule 3.851 motion and terminate postconviction
        proceedings. He has done so fully aware of the legal consequences of
        that decision, including the legal consequences of abandoning his
        Hurst claims even though he would be entitled to Hurst relief. The
        Court also finds that [Davis’s] decision to waive his pending Rule
        3.851 motions was made knowingly, freely, and voluntarily. The
        Court notes that the Florida Supreme Court has not addressed whether
        a defendant can waive a Hurst claim, especially when the defendant
        would clearly be entitled to Hurst relief. However, in light of
        [Davis’s] clear desire to dismiss his pending motions and terminate
        further postconviction proceedings, the Court finds that it [is]
        appropriate to grant [Davis’s] request and to dismiss his pending
        motions.

Postconviction Ct.’s Order at 2-3 (emphasis added); see Fla. R. Crim. P. 3.851(i).

Notably, the Postconviction Court’s Order did not discharge Davis’s counsel. The

postconviction court allowed Davis to retain counsel to bring future, execution-

related claims, such as “that an execution cannot be performed” or challenges to

the “methodology of how they carry out the execution,” as the court explained at



                                        - 10 -
the hearing. See Postconviction Ct.’s Order at 2. As required by rule 3.851(i)(8),

Davis’s counsel filed this appeal.

                                     ANALYSIS

      For the following reasons, we affirm the Postconviction Court’s Order. This

Court explained the basis for postconviction waivers in Trease v. State, 41 So. 3d

119 (Fla. 2010):

             In Durocher [v. Singletary], 623 So. 2d [482,] 483 [(Fla.
      1993)], this Court held that capital defendants who are competent can
      waive postconviction counsel and postconviction proceedings,
      reasoning “[i]f the right to representation can be waived at trial, we
      see no reason why the statutory right to collateral counsel cannot also
      be waived.” This Court explained that it “cannot deny [a death row
      inmate] his right to control his destiny to whatever extent remains.”
      [Id.] at 484. However, under such circumstances, this Court ruled that
      a Faretta-type inquiry was required to ensure that the waiver is
      knowing, intelligent, and voluntary. Id. at 485. Specifically, this
      Court stated the following:

             [W]e also recognize that the state has an obligation to
             assure that the waiver of collateral counsel is knowing,
             intelligent, and voluntary. Accordingly, we direct the
             trial judge forthwith to conduct a Faretta-type evaluation
             of Durocher to determine if he understands the
             consequences of waiving collateral counsel and
             proceedings. If the judge finds a proper waiver by
             Durocher, he shall report that finding to this Court and
             the instant petition will be dismissed. If, however,
             Durocher does not understand the consequences of his
             decision, the judge shall report that fact to this Court and
             CCR will be allowed to proceed on Durocher’s behalf.
             The attorney general’s office and CCR may attend the
             evaluation, but may not participate unless permitted to do
             so by the judge. If the Faretta-type hearing raises
             questions in the judge’s mind about Durocher’s

                                        - 11 -
             competency, he may order a mental health evaluation and
             make a competency determination thereafter.

      Id.
             Following Durocher, this Court has consistently held that both
      postconviction counsel and proceedings may be waived so long as the
      waiver is voluntary, knowing, and intelligent. . . .
             The procedures described in Durocher have been codified in
      rule 3.851(i), which applies when a defendant seeks to dismiss
      pending postconviction proceedings and discharge collateral counsel.

Id. at 123-24. Rule 3.851(i) states in pertinent part:

             (7) If the court determines that the defendant has made the
      decision to dismiss pending postconviction proceedings and discharge
      collateral counsel knowingly, freely, and voluntarily, the court shall
      enter an order dismissing all pending postconviction proceedings and
      discharging collateral counsel. But if the court determines that the
      defendant has not made the decision to dismiss pending
      postconviction proceedings and discharge collateral counsel
      knowingly, freely, and voluntarily, the court shall enter an order
      denying the motion without prejudice.
             (8) If the court grants the motion:
                     (A) a copy of the motion, the order, and the transcript of
             the hearing or hearings conducted on the motion shall be
             forwarded to the Clerk of the Supreme Court of Florida within
             30 days; and
                     (B) discharged counsel shall, within 10 days after
             issuance of the order, file with the clerk of the circuit court 2
             copies of a notice seeking review in the Supreme Court of
             Florida, and shall, within 20 days after the filing of the
             transcript, serve an initial brief. Both the defendant and the
             state may serve responsive briefs. Briefs shall be served as
             prescribed by rule 9.210.
             (9) If the court denies the motion, the defendant may seek
      review as prescribed by Florida Rule of Appellate Procedure 9.142(b).

Fla. R. Crim. P. 3.851(i).




                                        - 12 -
      As the language of rule 3.851(i) indicates, postconviction waiver cases

generally involve a defendant who seeks to waive both postconviction proceedings

and counsel. See, e.g., Robertson v. State, No. SC16-1297, 2016 WL 7043020, at

*1 (Fla. Dec. 1, 2016); Slawson v. State, 796 So. 2d 491, 492 (Fla. 2001);

Durocher, 623 So. 2d at 483. However, this case is atypical because Davis

explicitly sought to waive only postconviction proceedings—not counsel—to

preserve the right to raise potential future claims that may arise. While the State

argues that the postconviction court should not have allowed counsel to remain on

Davis’s case because the postconviction waiver necessarily included a waiver of

counsel and all future claims, a defendant has the right to enter a waiver to some or

all postconviction claims. 8

                                    THIS CASE

      Although the validity of Davis’s waiver is not challenged in this case, we

conclude that the postconviction court did not abuse its discretion in determining

that Davis’s waiver was knowing, voluntary, and intelligent and, therefore, valid.



       8. This case indicates that the language of rule 3.851(i) may be inconsistent
with this Court’s case law in two ways. First, the rule may not have contemplated
partial waivers, such as here, where the defendant does not seek to waive both
postconviction proceedings and counsel. Second, this Court’s case law has
interpreted waivers as encompassing all postconviction claims, possible future
changes in the law, and execution-related challenges, despite the rule providing for
the waiver of only “pending” claims. As a result, we refer this matter to the
Criminal Court Steering Committee to consider possible revisions to rule 3.851(i).

                                        - 13 -
The postconviction court also properly determined that Davis’s waiver included his

pending claim to Hurst relief. The record makes clear that Davis was aware that

he was likely entitled to Hurst relief based on the jury’s nonunanimous

recommendation for death but nevertheless intended to waive that claim. See

Mosley, 209 So. 3d at 1253; Hurst, 202 So. 3d at 44.

      Consistent with the language of rule 3.851(i), the Postconviction Court’s

Order dismissed only Davis’s pending claims. However, the colloquy made clear

that Davis intended to permanently waive other claims, including those related to

the guilt phase trial, the penalty phase trial, and the decision that death is the

appropriate sentence in this case. Conversely, the record indicates that Davis also

intended to retain counsel in order to preserve his ability to, if necessary, raise

execution-related claims, such as challenging the intended method of execution or

that he is otherwise ineligible for execution. Because Davis and his counsel made

clear to the postconviction court that Davis did not intend to waive postconviction

counsel or the right to bring execution-related claims, we conclude that the

postconviction court properly allowed Davis to waive the instant proceedings

while maintaining counsel.




                                         - 14 -
                                  CONCLUSION

      For these reasons, we affirm the Postconviction Court’s Order, finding

Davis’s waiver valid while permitting him to retain counsel for future claims, if

any, related to his execution.

      It is so ordered.

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

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

POLSTON, J., dissenting.

      The majority’s decision to affirm an order allowing Davis to waive only

certain postconviction claims while retaining postconviction counsel to raise future

claims violates our precedent as well as the plain language of Florida Rule of

Criminal Procedure 3.851(i). Therefore, I respectfully dissent.

      In Durocher v. Singletary, 623 So. 2d 482, 485 (Fla. 1993), this Court held

that capital defendants who are competent may waive postconviction counsel and

postconviction proceedings if, after a Faretta-type hearing, the trial court

determines that the capital defendant “understands the consequences of waiving

collateral counsel and proceedings.” This Court’s authorization of a

postconviction waiver in Durocher was based upon this Court’s reasoning that,

“[i]f the right to representation can be waived at trial, we see no reason why the

                                        - 15 -
statutory right to collateral counsel cannot also be waived.” Durocher, 623 So. 2d

at 483. 9 Further, this Court in Durocher, “[t]o forestall further argument, [also

held] that CCR has no standing as a ‘next friend’ to proceed on Durocher’s

behalf.” Id. at 485. Thus, Durocher only authorized a waiver of postconviction

proceedings if the waiver was accompanied by a waiver of postconviction counsel.

      “The procedures described in Durocher have been codified in rule 3.851(i),

which applies when a defendant seeks to dismiss pending postconviction

proceedings and discharge collateral counsel.” Trease v. State, 41 So. 3d 119, 124

(Fla. 2010) (emphasis added). In fact, subsection 3.851(i)(1) (emphasis added),

expressly explains that “[t]his subdivision applies only when a defendant seeks

both to dismiss pending postconviction proceedings and to discharge collateral

counsel.” Subdivision 3.851(i)(6) requires “a complete (Durocher/Faretta) inquiry

to determine whether the defendant knowingly, freely and voluntarily wants to

dismiss pending postconviction proceedings and discharge collateral counsel,” and

subdivision 3.851(i)(7) specifies that, “[i]f the court determines that the defendant

has made the decision to dismiss pending postconviction proceedings and

discharge collateral counsel knowingly, freely, and voluntarily, the court shall



       9. Of course, a majority of this Court has held that capital defendants may
not appear pro se in any postconviction appeals. See Gordon v. State, 75 So. 3d
200 (Fla. 2011). This Court has also prohibited capital defendants from appearing
pro se in direct appeals. See Davis v. State, 789 So. 2d 978 (Fla. 2001).


                                        - 16 -
enter an order dismissing all pending postconviction proceedings.” (Emphasis

added.) However, “if the court determines that the defendant has not made the

decision to dismiss pending postconviction proceedings and discharge collateral

counsel knowingly, freely, and voluntarily, the court shall enter an order denying

the motion without prejudice.” Fla. R. Crim. P. 3.851(i)(7) (emphasis added).

      Additionally, our precedent indicates that a valid waiver of both

postconviction counsel and proceedings is a permanent waiver. “In James, 974 So.

2d 365 [(Fla. 2008)], this Court did not allow the reappointment of counsel to

resume postconviction proceedings after a prior waiver of postconviction counsel

and proceedings.” Trease, 41 So. 3d at 125-26. In James, 974 So. 2d at 368, this

Court held that “a mere change of mind is an insufficient basis for setting aside a

previous waiver.” This Court also prohibited reinstatement of postconviction

counsel and postconviction proceedings in Trease, 41 So. 3d at 126, reasoning as

follows:

             If this Court were to allow Trease to reinstate his
      postconviction proceedings based upon a mere change of mind, there
      would be nothing to stop Trease from changing his mind again at a
      later date. In fact, based upon Trease’s history, this is a likely
      scenario. Then, the trial court would be required to conduct another
      Durocher hearing because Trease has a right to waive postconviction
      counsel and proceedings. Thereafter, Trease could again change his
      mind, and the trial court would be required to reinstate the
      postconviction proceedings. The cycle could continue indefinitely.
      Cf. Waterhouse v. State, 596 So. 2d 1008, 1014 (Fla. 1992) (“[A]
      defendant may not manipulate the proceedings by willy-nilly leaping
      back and forth between the choices [of self-representation and

                                        - 17 -
      appointed counsel].” (quoting Jones v. State, 449 So. 2d 253, 259
      (Fla. 1984))).

      To summarize, our precedent and the plain language of the rule contemplate

a valid waiver to be permanent and to include a waiver of all postconviction

proceedings as well as a waiver of postconviction counsel. In other words,

contrary to the majority’s holding today, our precedent and the plain language of

the rule do not authorize a partial waiver of only some postconviction claims while

retaining postconviction counsel to raise postconviction claims at some point in the

future. Accordingly, I respectfully dissent.10

An Appeal from the Circuit Court in and for Seminole County,
     John D. Galluzzo, Judge - Case No. 592009CF005140A000XX

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Maria Christine
Perinetti, Raheela Ahmed, and Lisa Marie Bort, Assistant Capital Collateral
Regional Counsel, Middle Region, Temple Terrace, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z.
Pacheco, Assistant Attorney General, Tampa, Florida,

      for Appellee




       10. I would be open to amending rule 3.851(i) to provide a mechanism for
raising narrow claims, with representation, relating to execution, including claims
that the defendant is incompetent or that the execution method is unconstitutional.


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