          Supreme Court of Florida
                                   ____________

                                   No. SC17-1229
                                   ____________

                         JEFFREY GLENN HUTCHINSON,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                  [March 15, 2018]

PER CURIAM.

      Jeffrey Glenn Hutchinson appeals an order of the circuit court summarily

denying a motion to vacate a judgment of conviction of first-degree murder and a

sentence of death under Florida Rule of Criminal Procedure 3.851. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the circuit court’s

summary denial of Hutchinson’s postconviction claim in light of our decisions in

Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016), and Mullens v. State, 197 So. 3d

16, 38-40 (Fla. 2016).

      Hutchinson murdered Renee Flaherty and her three children, Logan,

Amanda, and Geoffrey. Hutchinson v. State, 882 So. 2d 943, 948-49 (Fla. 2004).
A jury convicted him of four counts of first-degree murder with a firearm. Id. at

948. Hutchinson waived his right to a penalty phase jury and presented mitigation

to the trial judge. Id. On January 21, 2001, the trial court conducted a colloquy,

found his waiver voluntary, and excused the jury. Id. at 949. Hutchinson was

sentenced to life imprisonment for the murder of Renee Flaherty and to a death

sentence for each child’s murder. Id. at 948. The trial court found two aggravators

for the murders of Logan and Amanda: (1) previously convicted of another capital

felony for the murders of the other children; and (2) victim under 12 years of age.

The trial court found three aggravators for Geoffrey’s murder: (1) previously

convicted of another capital felony for the murders of the other children; (2) victim

under 12 years of age; and (3) heinous, atrocious, or cruel (HAC). Hutchinson

raised ten issues in his direct appeal, and this Court affirmed the four convictions

and three death sentences. Id. at 961.1



      1. Hutchinson raised the following issues:
      (1) whether the trial court improperly instructed the jury; (2) whether
      the trial court erred in admitting certain testimony as an excited
      utterance; (3) whether the trial court erred in repeatedly overruling
      objections to the State’s closing argument; (4) whether the trial court
      erred in denying Hutchinson’s motion for mistrial; (5) whether the
      trial court erred in denying Hutchinson’s motion for judgment of
      acquittal; (6) whether the trial court erred in denying Hutchinson’s
      motion for a new trial; (7) whether the trial court erred in considering
      section 921.141(5)(1), Florida Statutes (2000), as an aggravating
      circumstance; (8) whether the trial court erred in finding that
      Hutchinson committed the murder of the children during the course of

                                          -2-
      In 2005, Hutchinson filed his initial postconviction motion and an amended

motion following the withdrawal of counsel and appointment of new counsel.

Hutchinson v. State, 17 So. 3d 696, 699 (Fla. 2009). The circuit court denied the

motion following an evidentiary hearing on some of the claims. Hutchinson raised

three issues in his appeal of the circuit court’s denial. Id. at 700.2 This Court

affirmed the denial of relief. Id. at 704.

      Hutchinson filed a federal habeas petition pro se on July 24, 2009, and

Hutchinson’s habeas counsel filed an amended habeas petition on November 23,

2009. The district court dismissed the amended petition as untimely. Hutchinson

v. Florida, No. 5:09-CV-261-R5, 2010 WL 3833921 (N.D. Fla. Sept. 28, 2010).




      an act of aggravated child abuse; (9) whether the trial court erred in
      finding heinous, atrocious, or cruel (HAC) as an aggravating
      circumstance in the murder of Geoffrey Flaherty; and (10) whether
      death is a proportional sentence.
Hutchinson, 882 So. 2d at 949-50.

      2. Hutchinson raised the following claims before this Court on appeal:
      (1) trial counsel rendered ineffective assistance during the guilt phase
      by failing to present evidence that Hutchinson’s voice was not on the
      911 audio tape; (2) trial counsel rendered ineffective assistance during
      the guilt phase by failing to introduce into evidence the nylon stocking
      found at the crime scene; and (3) the trial court erred in summarily
      denying Hutchinson’s claims of actual innocence and conflict of
      interest.
Hutchinson, 17 So. 3d at 700.


                                             -3-
The Eleventh Circuit Court of Appeals affirmed. Hutchinson v. Florida, 677 F.3d

1097 (11th Cir.), cert. denied, 568 U.S. 947 (2012). Hutchinson filed a rule 60(b)

motion to reopen his federal habeas case pro se. The federal district court assigned

the capital habeas unit (CHU) as federal habeas counsel of record. This motion

remains pending in federal court and is stayed pending the outcome of this appeal.

      On January 11, 2017, Hutchinson’s CHU counsel filed a successive

postconviction motion in state court seeking relief under Hurst v. Florida, 136 S.

Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.

Ct. 2161 (2017). The State filed its answer on January 27, 2017, asserting that the

motion should be summarily denied because Hutchinson waived any right to Hurst

relief when he waived his penalty phase jury. Hutchinson filed a reply on March

29, 2017. The circuit court summarily denied Hutchinson’s motion on May 30,

2017. This appeal followed.

      A circuit court’s decision on whether to grant an evidentiary hearing on a

postconviction motion is a pure question of law, reviewed de novo. Mann v. State,

112 So. 3d 1158, 1162 (Fla. 2013). When determining whether an evidentiary

hearing is required on a successive rule 3.851 motion, this Court considers the

entire record. “If the motion, files, and records in the case conclusively show that

the movant is entitled to no relief, the motion may be denied without an evidentiary

hearing.” Fla. R. Crim. P. 3.851(f)(5)(B). Although evidentiary hearings on


                                        -4-
factually based claims raised in successive rule 3.851 motions are not

automatically required, courts are encouraged to liberally allow such hearings on

timely raised claims. See Amends. to Fla. Rules of Crim. Pro. 3.851, 797 So. 2d

1213, 1219-20 (Fla. 2001).

      To the extent that Hutchinson asserts that his penalty phase jury waiver was

invalid because counsel was ineffective, the circuit court properly found that

Hutchinson is not entitled to relief. This Court has determined that in order to

succeed on a claim for ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668 (1984), the claimant must identify counsel’s deficient

performance and demonstrate that counsel’s deficiency so affected the proceeding

that it undermined confidence in the outcome. Occhicone v. State, 768 So. 2d

1037, 1045 (Fla. 2000). In Occhicone, this Court held that “strategic decisions do

not constitute ineffective assistance of counsel if alternative courses have been

considered and rejected and counsel’s decision was reasonable under the norms of

professional conduct.” Id. at 1048. Counsel’s properly advising Hutchinson of the

law at the time and recommending jury waiver was not deficient performance.

Hutchinson is not entitled to relief on an ineffective assistance claim.




                                         -5-
      While Hurst is retroactive to defendants whose sentences became final after

Ring3 was decided, Hurst relief is not available for defendants who have waived a

penalty phase jury. See Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016); Mullens

v. State, 197 So. 3d 16, 38-40 (Fla. 2016). In consideration of a penalty phase jury

waiver in the context of a guilty plea on direct appeal, this Court opined:

              If a defendant remains free to waive his or her right to a jury
      trial, even if such a waiver under the previous law of a different
      jurisdiction automatically imposed judicial factfinding and sentencing,
      we fail to see how [the defendant], who was entitled to present
      mitigating evidence to a jury as a matter of Florida law even after he
      pleaded guilty and validly waived that right, can claim error. As our
      sister courts have recognized, accepting such an argument would
      encourage capital defendants to abuse the judicial process by waiving
      the right to jury sentencing and claiming reversible error upon a
      judicial sentence of death. [State v.]Piper, 709 N.W.2d [783,] 808
      [(S.D. 2006)] (citing People v. Rhoades, 753 N.E.2d 537, 544 (2001)).
      This we refuse to permit.

Mullens v. State, 197 So. 3d 16, 39-40 (Fla. 2016). This Court has also held that

“[a] similar claim in postconviction proceedings is necessarily precluded.” Brant,

197 So. 3d at 1079.

      Although Mullens is distinguishable from this case because the defendant in

that case pled guilty, this Court’s determination that his jury waiver precluded

Hurst relief is applicable to this case. Here, the circuit court properly found that

Hutchinson’s colloquy supported the conclusion that his waiver was knowing,



      3. Ring v. Arizona, 536 U.S. 584 (2002).


                                         -6-
intelligent, and voluntary. Hutchinson maintains that his waiver became invalid as

a result of the change in the law after Hurst.

      Hutchinson contends that his case is distinguishable from Mullens and Brant

because he challenges the validity of his waiver. Contrary to Hutchinson’s

assertion, the defendant in Brant also challenged the validity of his waiver, arguing

that counsel was ineffective in light of the change in Hurst just as Hutchinson

argues in this case. In both Mullens and Brant, this Court found that the

defendants’ waivers were knowingly, intelligently, and voluntarily made based on

their colloquies, even though those waivers were made with the advice of counsel

based on pre-Hurst law. See Brant, 197 So. 3d at 1066; Mullens, 197 So. 3d at 39-

40. Hutchinson’s waiver is no different.

      Hutchinson also argues that he is entitled to an evidentiary hearing on this

claim because this Court granted evidentiary hearings in Meeks v. Dugger, 576 So.

2d 713, 716 (Fla. 1991), and Hall v. State, 541 So. 2d 1125, 1128 (Fla. 1989), to

determine the effect of constitutional error on defense counsel. Following the

United States Supreme Court’s decision in Hitchcock v. Dugger, 481 U.S. 393

(1987), providing that jurors must be instructed on and the defendant allowed to

present nonstatutory mitigation, this Court considered Meeks’ Hitchcock claim.

The affidavits in Meeks’ case demonstrated that counsel did not seek to develop

nonstatutory mitigation because of the then-prevailing statutory construction which


                                         -7-
only provided for mitigation enumerated in the statute. Meeks, 576 So. 2d at 716.

This Court granted an evidentiary hearing. Id. In Hall, this Court granted an

evidentiary hearing on the defendant’s Hitchcock claim based on the affidavits of

numerous mental health experts regarding nonstatutory mitigation which would

have been available had counsel believed nonstatutory mitigation was available

under the law. Hall, 541 So. 2d at 1127.

      A defendant’s ability to waive a penalty phase jury did not change after

Hurst. Unlike Hutchinson, the defendants in Meeks and Hall did not waive any

rights. Had they waived their rights to present evidence during the penalty phase,

they would not have been eligible for relief on their Hitchcock claims. See Tafero

v. Dugger, 520 So. 2d 287, 289 (Fla. 1988) (denying relief on a Hitchcock claim

where the defendant validly waived his right to present evidence at his penalty

phase). Similarly, Hutchinson is not entitled to relief on this Hurst claim where he

waived his right to a jury trial. Unlike the change of law in Hitchcock, the change

of law under Hurst does not have any bearing on the evidence that a lawyer might

choose to develop or that expert witnesses may present. Hurst relief is not

available to individuals who waived their right to a penalty phase jury.

      Hutchinson also contends that under Halbert v. Michigan, 545 U.S. 605, 623

(2005), he could not have waived a post-Hurst right to a unanimous jury

recommendation before the imposition of death because the courts did not


                                        -8-
recognize the right at the time. The United States Supreme Court held in Halbert

that the Due Process and Equal Protection Clauses require appointment of first-tier

postconviction counsel for indigent defendants and that the defendant’s plea of

nolo contendere did not preclude the court from granting him relief. Hutchinson

contends that this Court should follow Halbert in finding that Hurst created a new

right to a jury trial distinct from the pre-Hurst right, and further find that his jury

waiver does not preclude Hurst relief. The United States Supreme Court rejected

an argument similar to Hutchinson’s in McMann v. Richardson, 397 U.S. 759, 773-

74 (1970), holding that a change in the law regarding coerced confessions did not

liberate a defendant from a plea entered under the old law.

      Unlike the right to first-tier postconviction counsel in Halbert, the right to a

jury trial was well recognized before Hurst. Although Hutchinson contends that

Halbert affected postconviction proceedings and therefore should be followed

here, Halbert did not establish any rights related to successive postconviction

proceedings like this one. As previously stated, this Court has explicitly rejected

Hutchinson’s argument, opining that “accepting such an argument would

encourage capital defendants to abuse the judicial process by waiving the right to

jury sentencing and claiming reversible error upon a judicial sentence of death.

This we refuse to permit.” Mullens, 197 So. 3d at 40 (citations omitted).




                                          -9-
      Based on the foregoing, we affirm the decision of the circuit court and deny

relief on Hutchinson’s claim.

      It is so ordered.

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

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

An Appeal from the Circuit Court in and for Okaloosa County,
     John T. Brown, Judge - Case No. 461998CF001382XXXACX

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Northern District of Florida, Tallahassee, Florida; and Clyde M. Taylor, Jr. of
Taylor & Taylor, LLC, St. Augustine, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,

      for Appellee




                                      - 10 -
