         Supreme Court of Florida
                                 ____________

                                 No. SC16-448
                                 ____________

                           JASON DIRK WALTON,
                                 Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                                 ____________

                                 No. SC17-1083
                                 ____________

                           JASON DIRK WALTON,
                                 Petitioner,

                                       vs.

                            JULIE L. JONES, etc.,
                                Respondent.

                                 [May 17, 2018]

PER CURIAM.

      This case is before the Court on appeal by Jason Walton from an order

denying a motion to vacate sentences of death under Florida Rule of Criminal

Procedure 3.851. Walton also petitions this Court for writ of habeas corpus. We
have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained

below, we affirm the postconviction court’s denial of relief and deny Walton’s

petition for writ of habeas corpus.

              FACTUAL AND PROCEDURAL BACKGROUND

      Walton was convicted and sentenced to death for the execution-style

murders of three individuals that occurred during the commission of a robbery and

burglary. Walton v. Dugger (Walton IV), 634 So. 2d 1059, 1060 (Fla. 1993).

      On direct appeal, this Court affirmed the convictions but vacated the
      death sentences because the trial court failed to afford Walton an
      opportunity to confront two codefendants whose confessions and
      statements were presented during the penalty phase. See [Walton v.
      State (Walton I), 481 So. 2d 1197,] 1198-1201 [(Fla. 1985)]. The trial
      court conducted a second penalty phase and the jury again
      recommended death on all three convictions. See Walton v. State
      [(Walton II)], 547 So. 2d 622, 623 (Fla. 1989).[1] The trial court again
      imposed the death penalty on all three convictions, and this Court
      affirmed those sentences on appeal. See id. at 626. The United States


      1. The trial judge found the following aggravating factors:
      (1) the murders were committed during the commission of a robbery
      and burglary; (2) the murders were committed for pecuniary gain; (3)
      the murders were committed in an especially heinous, atrocious, or
      cruel fashion; (4) the murders were committed in a cold, calculated,
      and premeditated manner; and (5) the murders were committed for the
      purpose of avoiding a lawful arrest. The trial judge noted that the first
      two aggravating circumstances would be considered as one. The trial
      judge found no mitigating factors and imposed the death sentence.

Walton II, 547 So. 2d at 624.




                                        -2-
      Supreme Court denied certiorari review. See Walton v. Florida
      [(Walton III)], 493 U.S. 1036 (1990).

              Walton filed his initial postconviction motion pursuant to
      Florida Rule of Criminal Procedure 3.850, in which he alleged that
      trial counsel was ineffective. See Walton [IV], 634 So. 2d [at] 1060-
      61 . . . . After an evidentiary hearing, the trial court denied the motion.
      See id. Walton appealed that denial to this Court and petitioned for a
      writ of habeas corpus. See id. This Court initially relinquished
      jurisdiction to the trial court for resolution of a public records request
      by Walton. See id. at 1062. On remand, Walton amended his
      previously filed rule 3.850 motion to add claims based upon
      information discovered in the public records and newly adduced
      evidence. See Walton v. State [(Walton V)], 847 So. 2d 438, 442-43
      (Fla. 2003). One such claim was that trial counsel was ineffective for
      failure to adequately investigate and prepare for trial. See id. at 442
      n.2. The trial court again denied all of Walton’s claims. See id. at
      443. Walton appealed that denial to this Court and again petitioned
      this Court for a writ of habeas corpus. See id. This Court affirmed
      the denial of Walton’s postconviction motion and denied habeas
      relief. See id. at 460. [This Court] also denied a subsequent petition
      for a writ of habeas corpus filed by Walton pursuant to Ring v.
      Arizona, 536 U.S. 584 (2002). See Walton v. Crosby, 859 So. 2d 516
      (Fla. 2003).

             Walton thereafter filed a successive postconviction motion
      pursuant to Florida Rule of Criminal Procedure 3.851. See Walton v.
      State [(Walton VI)], 3 So. 3d 1000, 1002 (Fla. 2009). The trial court
      summarily denied relief. See id. at 1002. Walton appealed that denial
      to this Court, and this Court affirmed the order of the postconviction
      court. See id.

Walton v. State (Walton VII), 77 So. 3d 639, 640-41 (Fla. 2011). In 2010, Walton

filed a second successive motion for postconviction relief pursuant to rule 3.851.

Id. at 641. The postconviction court denied Walton’s motion. See id. at 642. This

Court affirmed the order of the postconviction court. Id. at 644.


                                         -3-
      On May 7, 2015, Walton filed a third successive postconviction motion

asserting that he should either be resentenced to life or receive a new penalty phase

due to the fact that his codefendant, Richard Cooper, was resentenced to life based

on a cumulative review of the evidence. On December 28, 2015, the

postconviction court denied Walton’s motion. On March 7, 2016, Walton filed a

notice of appeal to this Court. On September 16, 2016, this Court relinquished

jurisdiction to allow for rehearing. On October 4, 2016, the postconviction court

granted rehearing.

      On June 20, 2016, Walton filed a fourth successive postconviction motion,2

asserting that changes in Florida’s capital sentencing law are part of the cumulative

review of newly discovered evidence. On January 13, 2017, the postconviction

court denied Walton’s motion. This appeal follows.

      Additionally, on June 8, 2017, Walton filed a petition for habeas relief. This

Court stayed the proceedings on September 15, 2017, and then, on September 27,

2017, issued an order for Walton to show cause why Hitchcock v. State, 226 So. 3d

216 (Fla.), cert. denied, 138 S. Ct. 513 (2017), does not control.




       2. Walton’s fourth successive postconviction motion reasserted, in part,
Walton’s third successive postconviction motion arguments in light of Hurst v.
State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).


                                         -4-
                                    ANALYSIS

      We affirm the postconviction court’s denial of relief for the reasons

discussed below.

                       Walton’s Cumulative Analysis Claim

      Walton contends that a proper Swafford3/Hildwin4 cumulative analysis

requires consideration of all changes in the law that might apply if a new trial were

granted. We find this claim to be meritless.

              To obtain a new trial based on newly discovered evidence, a
      defendant must meet two requirements. First, the evidence must not
      have been known by the trial court, the party, or counsel at the time of
      trial, and it must appear that the defendant or defense counsel could
      not have known of it by the use of diligence. Second, the newly
      discovered evidence must be of such nature that it would probably
      produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512,
      521 (Fla. 1998) (Jones II). Newly discovered evidence satisfies the
      second prong of the Jones II test if it “weakens the case against [the
      defendant] so as to give rise to a reasonable doubt as to his
      culpability.” Jones II, 709 So. 2d at 526 (quoting Jones v. State, 678
      So. 2d 309, 315 (Fla. 1996)). If the defendant is seeking to vacate a
      sentence, the second prong requires that the newly discovered
      evidence would probably yield a less severe sentence. See Jones v.
      State, 591 So. 2d 911, 915 (Fla. 1991) (Jones I).

            In determining whether the evidence compels a new trial, the
      postconviction court must “consider all newly discovered evidence
      which would be admissible” and must “evaluate the weight of both
      the newly discovered evidence and the evidence which was
      introduced at the trial.” Id. at 916. This determination includes


      3. Swafford v. State, 125 So. 3d 760 (Fla. 2013).
      4. Hildwin v. State, 141 So. 3d 1178 (Fla. 2014).


                                        -5-
             whether the evidence goes to the merits of the case or
             whether it constitutes impeachment evidence. The trial
             court should also determine whether this evidence is
             cumulative to other evidence in the case. The trial court
             should further consider the materiality and relevance of
             the evidence and any inconsistencies in the newly
             discovered evidence.

      Jones II, 709 So. 2d at 521 (citations omitted).

              When . . . the postconviction court rules on a newly discovered
      evidence claim after an evidentiary hearing, this Court “review[s] the
      trial court’s findings on questions of fact, the credibility of witnesses,
      and the weight of the evidence for competent, substantial evidence.”
      Green v. State, 975 So. 2d 1090, 1100 (Fla. 2008). In addition, “we
      review the trial court’s application of the law to the facts de novo.”
      Id.

Swafford, 125 So. 3d at 767-68 (alteration in original) (quoting Marek v. State, 14

So. 3d 985, 990 (Fla. 2009)).

      As to the first prong of the newly discovered evidence test, the

postconviction court found that the resentencing of codefendant Cooper qualified

as newly discovered evidence. We conclude that the postconviction court’s

finding is supported by competent, substantial evidence. See Jones II, 709 So. 2d

at 521 (“First, in order to be considered newly discovered, the evidence ‘must have

been unknown by the trial court, by the party, or by counsel at the time of trial, and

it must appear that defendant or his counsel could not have known [of it] by the use

of diligence.’ ” (quoting Torres–Arboleda v. Dugger, 636 So. 2d 1321, 1324-25

(Fla. 1994))).


                                         -6-
      The second prong of the newly discovered evidence test requires that “the

newly discovered evidence must be of such nature that it would probably produce

an acquittal on retrial.” Id. (citing Jones I, 591 So. 2d at 911, 915). The

postconviction court found that Walton failed to show that the resentencing of his

codefendant, Cooper, to a life sentence would probably result in a life sentence for

Walton on retrial. Walton contends that the postconviction court erred because a

proper cumulative analysis, as performed in Swafford and Hildwin, requires

consideration of changes in the law. Walton asserts that his newly discovered

evidence, considered together with the changes to Florida’s capital sentencing law,

i.e., Hurst, would probably result in him receiving a life sentence; thus he is

entitled to resentencing.

      As an initial matter, this Court has consistently applied its decision in Asay

v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017),

denying the retroactive application of Hurst v. Florida, 136 S. Ct. 616 (2016), as

interpreted in Hurst, to defendants whose death sentences were final when the

Supreme Court decided Ring. See, e.g., Hitchcock, 226 So. 3d at 217; Zack v.

State, 228 So. 3d 41, 47-48 (Fla. 2017), petition for cert. filed, No. 17-8134 (U.S.

Mar. 12, 2018); Marshall v. Jones, 226 So. 3d 211, 211 (Fla. 2017), petition for

cert. filed, No. 17-7869 (U.S. Feb. 20, 2018); Willacy v. Jones, No. SC16-497,

2017 WL 1033679, at *1 (Fla. Mar. 17, 2017); Lambrix v. State, 217 So. 3d 977,


                                         -7-
988-89 (Fla.), cert. denied, 138 S. Ct. 312 (2017); Bogle v. State, 213 So. 3d 833,

855 (Fla. 2017), cert. denied, 138 S. Ct. 738 (2018); Gaskin v. State, 218 So. 3d

399, 401 (Fla.), cert. denied, 138 S. Ct. 471 (2017). Walton’s death sentences

became final in 1990. See Walton III, 493 U.S. 1036. Therefore, Walton is among

those defendants whose death sentences were final before Ring. Thus it is clear

that Hurst is not applicable to Walton.

      Turning to what may be considered within a cumulative analysis, this Court

stated in Swafford:

      The Jones standard requires that, in considering the effect of the
      newly discovered evidence, we consider all of the admissible evidence
      that could be introduced at a new trial. Jones II, 709 So. 2d at 521. In
      determining the impact of the newly discovered evidence, the Court
      must conduct a cumulative analysis of all the evidence so that there is
      a “total picture” of the case and “all the circumstances of the case.”
      Lightbourne v. State, 742 So. 2d 238, 247 (Fla. 1999) (quoting
      Armstrong v. State, 642 So. 2d 730, 735 (Fla. 1994)).

Swafford, 125 So. 3d at 775-76. This Court did not consider any change in law

within Swafford. See generally id. In Swafford, this Court reviewed an appeal

from a postconviction court’s finding that newly discovered negative acid

phosphatase5 (AP) results would not have probably produced an acquittal. See id.

at 766. This Court disagreed, holding that the newly discovered AP evidence “so




      5. Acid phosphatase is commonly found in seminal fluid. See Swafford,
125 So. 3d at 766.


                                          -8-
significantly weakened the case against Swafford that it g[ave] rise to a reasonable

doubt as to his culpability for the sexual battery.” Id. at 768. This Court then, in

performing a cumulative analysis, held that the newly discovered evidence

changed the entire character of the case and affected the admissibility of evidence

that was originally presented to the jury. Id. at 775-78. In no part of this Court’s

decision in Swafford was there a discussion or consideration of statutory or

decisional changes in the law. See id. Although this Court stated that the newly

discovered evidence test “focuses on the likely result that would occur during a

new trial with all admissible evidence at the new trial being relevant to that

analysis,” there is no mention of any changes in law that must be taken into

account within a cumulative analysis. See id. at 776. Thus this Court did not hold

in Swafford that a cumulative analysis requires consideration of changes in the law

that might apply if a new trial were granted. See generally id.

      Neither did this Court consider any changes in law while performing a

cumulative analysis in Hildwin. See generally 141 So. 3d 1178. In Hildwin, this

Court reviewed an appeal from a postconviction court’s denial of a motion based

on newly discovered evidence that established that the DNA did not belong to the

defendant. See id. at 1183. This Court held that the newly discovered evidence

established that the DNA found on the victim’s underwear and on the washcloth at

the crime scene belonged to another suspect, which supported the defendant’s story


                                         -9-
that he saw the killer wipe his face with a “white rag.” See id. at 1192. This Court

then held that the cumulative effect of the newly discovered evidence weakened

the case against Hildwin to such an extent that it gave rise to a reasonable doubt as

to his culpability. See id. at 1193. This Court did not discuss any change in law

that was considered within the cumulative effect of the newly discovered evidence.

See generally id.

      Thus in neither Swafford nor Hildwin did this Court hold that a cumulative

analysis requires consideration of changes in the law that might apply if a new trial

were granted. See generally Swafford, 125 So. 3d 760; Hildwin, 141 So. 3d 1178.

This Court applies the Witt v. State, 387 So. 2d 922 (Fla. 1980), standard to

determine whether decisional changes in the law require retroactive application.

See Coppola v. State, 938 So. 2d 507, 510-11 (Fla. 2006); see also State v. Glenn,

558 So. 2d 4, 6 (Fla. 1990) (“[A]ny determination of whether a change in the law

requires retroactive application should be decided upon traditional principles

pertaining to changes in decisional law as set forth in Witt.” (citing McCuiston v.

State, 534 So. 2d 1144, 1146 (Fla. 1988))). Viewing decisional changes in the law

as newly discovered “facts” would erase the need for a retroactivity analysis

pursuant to Witt. See Coppola, 938 So. 2d at 510-11.

      Yet Walton contends that he satisfies the second prong of the newly

discovered evidence standard because it is probable that a resentencing jury will


                                        - 10 -
not unanimously return death recommendations, and thus, it is probable that life

sentences will be imposed. Clearly, Walton is attempting to circumvent this

Court’s retroactivity holding in Asay V when he asserts that Hurst constitutes a

newly discovered fact and is applicable through a cumulative analysis. Thus we

conclude that Walton’s attempt to shoehorn Hurst retroactivity through a newly

discovered evidence claim is meritless. Accordingly, we hold that the

postconviction court properly denied Walton’s motion.

                             Walton’s McCloud6 Claim

      In Walton’s third successive postconviction motion he asserted that he is

entitled to a life sentence because his sentences of death are disproportionate to the

life sentences imposed on all of his codefendants. The postconviction court found

that the life sentences of Walton’s two other codefendants, Terry Van Royal, Jr.

and Jeffrey McCoy, were irrelevant with regard to proportionality because Van

Royal was resentenced to life based on a legal error by the trial judge and McCoy

received a life sentence as part of a negotiated plea. Walton now contends that the

postconviction court’s reasoning is contrary to McCloud. However, McCloud is

inapposite because Walton’s codefendants received lesser sentences due to purely

legal reasons. See Walton II, 547 So. 2d at 623; see also Jeffries v. State, 222 So.




      6. McCloud v. State, 208 So. 3d 668 (Fla. 2016).


                                        - 11 -
3d 538, 547 (Fla. 2017) (“[W]e have historically refused to review the relative

culpability of codefendants when a codefendant pleads guilty and receives a lesser

sentence as a result.”); Farina v. State, 937 So. 2d 612 (Fla. 2006) (holding that the

life sentence of a codefendant was irrelevant because the basis for the codefendant

receiving the life sentence was purely legal and had no connection to the nature or

circumstances of the crime or to the defendant’s character or record). Moreover,

this Court previously directly addressed Walton’s culpability compared to Van

Royal, finding that “Walton was indeed more culpable than Van Royal.” Walton

V, 847 So. 2d at 449.

                               Walton’s Hurst Claims

      Walton also raises several Hurst claims,7 which we reject. This Court has

held that Hurst does not apply retroactively to capital defendants whose sentences

were final before the United States Supreme Court issued its opinion in Ring. Asay

V, 210 So. 3d at 7-14. In Hitchcock, this Court affirmed its decision in Asay V,

denying the retroactive application of Hurst v. Florida, as interpreted in Hurst, to

defendants whose death sentences were final when the United States Supreme

Court decided Ring. Hitchcock, 226 So. 3d at 217; see also Zack, 228 So. 3d at 47-



      7. Walton claims that: (1) his death sentences violate the Eighth
Amendment and the Florida Constitution; and (2) the retroactivity rulings in Asay
V and Mosley v. State, 209 So. 3d 1248 (Fla. 2016), violate the Eighth Amendment
principles announced in Furman v. Georgia, 408 U.S. 238 (1972).


                                        - 12 -
48; Marshall, 226 So. 3d at 211; Willacy, 2017 WL 1033679, at *1; Lambrix v.

State, 227 So. 3d 112, 113 (Fla.), cert. denied, 138 S. Ct. 312 (2017); Bogle, 213

So. 3d at 855; Gaskin, 218 So. 3d at 401. Walton is among those defendants

whose death sentences became final before Ring.

      This Court has previously rejected Eighth Amendment Hurst claims. See

Hannon v. State, 228 So. 3d 505, 513 (Fla.), cert. denied, 138 S. Ct. 441 (2017);

Lambrix, 227 So. 3d at 113; Asay v. State (Asay VI), 224 So. 3d 695, 702-03 (Fla.

2017); Hitchcock, 226 So. 3d at 216-17. Walton disagrees with the retroactivity

cutoff that this Court set in Asay V; however, that decision is final.8

                               Walton’s Habeas Claim

      Walton’s petition sought relief pursuant to the Supreme Court’s decision in

Hurst v. Florida, and our decision on remand in Hurst. This Court stayed

Walton’s appeal pending the disposition of Hitchcock. After this Court decided

Hitchcock, Walton responded to this Court’s order to show cause arguing why

Hitchcock should not be dispositive in this case. After reviewing Walton’s

response to the order to show cause, as well as the State’s arguments in reply, we

conclude that Walton is not entitled to relief. Walton’s death sentences became

final in 1990. Walton III, 493 U.S. 1036. Thus Hurst does not apply retroactively



      8. The Supreme Court denied certiorari review on August 24, 2017. See
Asay v. Florida, 138 S. Ct. 41, 41-42 (2017).


                                         - 13 -
to Walton’s sentences of death. See Hitchcock, 226 So. 3d at 217. Accordingly,

we deny Walton’s petition for habeas relief.

                                 CONCLUSION

      For the reasons discussed, we affirm the postconviction court’s denial of

Walton’s motion for postconviction relief and deny his petition for writ of habeas

corpus.

      It is so ordered.

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

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

An Appeal from the Circuit Court in and for Pinellas County,
     W. Douglas Baird, Senior Judge – Case No. 521983CF000630XXXXNO
And an Original Proceeding – Habeas Corpus

Neal Dupree, Capital Collateral Regional Counsel, and Bryan E. Martinez, Staff
Attorney, Southern Region, Fort Lauderdale, Florida; and Martin J. McClain of
McClain & McDermott, P.A., Wilton Manors, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A.
Freeland, Senior Assistant Attorney General, Tampa, Florida,

      for Appellee/Respondent




                                       - 14 -
