          Supreme Court of Florida
                                  ____________

                                   No. SC17-42
                                  ____________

                      RICHARD EUGENE HAMILTON,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                [February 8, 2018]

PER CURIAM.

      Richard Eugene Hamilton, a prisoner under sentence of death, appeals the

circuit court’s orders summarily denying his successive motion for postconviction

relief, which was filed under Florida Rule of Criminal Procedure 3.851, and his

demands for additional public records, which were filed under Florida Rule of

Criminal Procedure 3.852. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

                               I. BACKGROUND

      Hamilton was convicted of the 1994 first-degree murder, armed sexual

battery, armed robbery, and armed kidnapping of Carmen Gayheart. Hamilton v.

State, 703 So. 2d 1038, 1040 (Fla. 1997), cert. denied, 524 U.S. 956 (1998). We
affirmed Hamilton’s convictions and sentence of death on direct appeal. Id. at

1045. We thereafter affirmed the denial of his initial motion for postconviction

relief and denied his petition for a writ of habeas corpus. Hamilton v. State, 875

So. 2d 586, 589 (Fla. 2004).

      Between January and April 2016, Hamilton filed demands for additional

public records under rule 3.852(i) relating to his representation by predecessor

postconviction counsel and the judicial candidacy and tenure as a circuit court

judge of the Honorable E. Vernon Douglas, who oversaw Hamilton’s trial and

initial postconviction proceedings. The postconviction court concluded that

Hamilton’s demands for these additional public records were “of questionable

relevance and unlikely to lead to discoverable evidence” and denied the requests.

      On June 6, 2016, Hamilton filed a petition in this Court for a writ of habeas

corpus, claiming that he was entitled to relief under the United States Supreme

Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016). We denied the habeas

petition on March 3, 2017, citing Asay v. State, 210 So. 3d 1, 22 (Fla. 2016)

(holding that Hurst does not apply retroactively to sentences of death that became

final before the Supreme Court issued its 2002 decision in Ring v. Arizona, 536

U.S. 584 (2002)), cert. denied, 138 S. Ct. 41 (2017). Hamilton v. Jones, No.

SC16-984, 2017 WL 836807, at *1 (Fla. Mar. 3, 2017).




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      On August 24, 2016, while Hamilton’s petition for a writ of habeas corpus

was still pending in this Court, Hamilton filed a successive postconviction motion

in the circuit court. In his successive motion, Hamilton argued that (1) he is

entitled to a new postconviction proceeding due to the institutional failure of the

trial court, the State, and the Florida Supreme Court that resulted in a violation of

his state and federal constitutional rights and (2) his death sentence is

unconstitutional under Hurst v. Florida. The postconviction court summarily

denied the successive motion, concluding that it was “untimely as it was submitted

eighteen years after the mandate issued and that none of the three articulated

exceptions [in rule 3.851] apply.” Hamilton now appeals the denial of his

successive postconviction motion and the denial of his demands for additional

public records.

                                   II. ANALYSIS

                               A. Successive Motion

      A motion for postconviction relief must be filed within one year of the date

the defendant’s conviction and sentence become final. Fla. R. Crim. P.

3.851(d)(1). Hamilton’s convictions and sentences became final when the United

States Supreme Court denied certiorari review of the direct appeal proceedings on

June 26, 1998. Hamilton v. Florida, 524 U.S. 956 (1998); see Fla. R. Crim. P.

3.851(d)(1)(B) (“For the purposes of this rule, a judgment is final . . . on the



                                         -3-
disposition of the petition for writ of certiorari by the United States Supreme

Court, if filed.”). The one-year time limitation therefore expired in 1999.

      There are exceptions to the one-year time limitation for motions alleging:

             (A) the facts on which the claim is predicated were unknown to
      the movant or the movant’s attorney and could not have been
      ascertained by the exercise of due diligence, or

             (B) the fundamental constitutional right asserted was not
      established within the period provided for in subdivision (d)(1) and
      has been held to apply retroactively, or

           (C) postconviction counsel, through neglect, failed to file the
      motion.

Fla. R. Crim. P. 3.851(d)(2). Hamilton argues that his Hurst claim was timely

because it was raised within one year of the Supreme Court’s decision in Hurst v.

Florida, but Hamilton is incorrect. The relevant time in which to file a claim based

on a new fundamental constitutional right is one year from the date of the decision

announcing that the right applies retroactively. See Dixon v. State, 730 So. 2d 265,

267 (Fla. 1999) (stating that the basis for calculating a cut-off period for

postconviction claims based on a fundamental constitutional right is the date of the

issuance of the mandate in the case in which this Court announces retroactivity).

But Hurst has never been held to be retroactive to defendants in Hamilton’s

position. To the contrary, we have expressly held that Hurst does not apply

retroactively to defendants whose convictions and sentences were final prior to the




                                         -4-
issuance of Ring in 2002. Hitchcock v. State, 226 So. 3d 216, 217 (Fla.), cert.

denied, 138 S. Ct. 513 (2017); Asay, 210 So. 3d at 22.

      Accordingly, because Hamilton’s successive motion was filed after the

expiration of the one-year time limitation and none of the exceptions to the one-

year time limitation in rule 3.851(d)(2) are applicable to either of the claims raised

by Hamilton in his successive postconviction motion, the postconviction court

properly denied the successive motion as untimely. See Fla. R. Crim. P.

3.851(d)(2) (stating that no motion filed beyond the one-year time limitation shall

be considered unless it alleges that one of the three exceptions to the one-year time

bar applies).

                   B. Demands for Additional Public Records

      We review the denial of motions for additional public records made under

rule 3.852 for an abuse of discretion. Pardo v. State, 108 So. 3d 558, 565 (Fla.

2012). Under rule 3.852(i), a

      trial court may order a person or agency to produce additional public
      records only upon finding each of the following:

             (A) collateral counsel has made a timely and diligent search of
      the records repository;

            (B) collateral counsel’s affidavit identifies with specificity
      those additional public records that are not at the records repository;

            (C) the additional public records sought are either relevant to
      the subject matter of a proceeding under rule 3.851 or appear
      reasonably calculated to lead to the discovery of admissible evidence;
      and

                                         -5-
            (D) the additional public records request is not overly broad or
      unduly burdensome.

Fla. R. Crim. P. 3.852(i)(2). We have held that circuit courts have discretion to

deny public records requests that are “overly broad, of questionable relevance, and

unlikely to lead to discoverable evidence,” Moore v. State, 820 So. 2d 199, 204

(Fla. 2002), and that “a defendant bears the burden of demonstrating that the

records sought relate to a colorable claim for postconviction relief,” Chavez v.

State, 132 So. 3d 826, 829 (Fla. 2014) (citing Mann v. State, 112 So. 3d 1158,

1163 (Fla. 2013)).

      Here the trial court made a specific finding that Hamilton’s requests were

“of questionable relevance and unlikely to lead to discoverable evidence.”

Hamilton does not explain why he believes the trial court abused its discretion in

denying his requests; he appears to simply disagree with the trial court’s

conclusion. We find no abuse of discretion in the denial of the requests and

conclude that Hamilton has failed to meet his burden to demonstrate that the

records sought relate to a colorable claim for postconviction relief. Hamilton is

therefore not entitled to relief on this claim.

                                 III. CONCLUSION

      For these reasons, we affirm the circuit court’s orders denying Hamilton’s

successive motion for postconviction relief and denying his demands for additional

public records.


                                          -6-
      It is so ordered.

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

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

PARIENTE, J., dissenting.

      I dissent because I would grant Hamilton a new penalty phase in light of

Hurst.1 Also, I write to address the majority’s discussion and denial of relief based

on timeliness, which is both unnecessary and, more importantly, relies on

reasoning that is legally unsound. In my previous dissents, I have explained why

fundamental fairness dictates that all capital defendants should be provided a new

penalty phase pursuant to Hurst where there is a nonunanimous jury

recommendation for death.2

      Hamilton was sentenced to death after the jury recommended a sentence of

death by a vote of ten to two. Hamilton v. State, 703 So. 2d 1038, 1040 (Fla.



      1. 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).

        2. Hannon v. State, 228 So. 3d 505, 514 (Fla. 2017) (Pariente, J.,
dissenting); Lambrix v. State, 227 So. 3d 112, 114-15 (Fla. 2017) (Pariente, J.,
dissenting); Asay v. State (Asay VI), 224 So. 3d 695, 703-09 (Fla. 2017) (Pariente,
J., dissenting); Hitchcock v. State, 226 So. 3d 216, 220-23 (Fla.) (Pariente, J.,
dissenting), cert. denied, 138 S. Ct. 513 (2017); see also Asay v. State (Asay V),
210 So. 3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part and dissenting in
part), cert. denied, 138 S. Ct. 41 (2017).

                                        -7-
1997), cert. denied, 524 U.S. 956 (1998). His sentence became final in 1998. Id. I

would apply Hurst retroactively to Hamilton’s sentence and, based on the jury’s

nonunanimous recommendation for death, would vacate the sentence of death and

grant a new penalty phase. I note that this Court already denied Hamilton’s prior

petition for a writ of habeas corpus requesting Hurst relief, where I concurred in

result based on this Court’s precedent in Asay V. Hamilton v. Jones, No. SC16-

984, 2017 WL 836807 (Fla. order issued Mar. 3, 2017). However, since Asay V,

this Court has further denied the retroactive application of Hurst to pre-2002

defendants without properly addressing defendants’ Eighth Amendment claims and

allowed three executions to proceed; I have dissented from all of those decisions.3

      Over and over, the United States Supreme Court and this Court have made

clear that “the critical linchpin of the constitutionality of the death penalty is that it

be imposed in a reliable and not arbitrary manner.” Asay VI, 224 So. 3d at 708 &

n.8 (Pariente, J., dissenting) (citing Gregg v. Georgia, 428 U.S. 153, 188 (1976);

Glossip v. Gross, 135 S. Ct. 2726, 2760-62 (2015) (Breyer, J., dissenting)); accord

Hurst, 202 So. 3d at 59-60; see generally Furman v. Georgia, 408 U.S. 238 (1972).

As I have expressed several times, the Court’s retroactivity cut-off of Ring v.

Arizona, 536 U.S. 584 (2002), results in unconstitutional arbitrariness in the


        3. See Hannon, 228 So. 3d at 514 (Pariente, J., dissenting); Lambrix, 227
So. 3d at 114-15 (Pariente, J., dissenting); Asay VI, 224 So. 3d at 703-09 (Pariente,
J., dissenting); Hitchcock, 226 So. 3d at 220-23 (Pariente, J., dissenting).

                                           -8-
imposition of the death penalty. Likewise, Judge Martin of the United States Court

of Appeals for the Eleventh Circuit recently stated that “it is arbitrary in the

extreme to [distinguish] between people on death row based on nothing other than

the date when the constitutional defect in their sentence occurred.” Hannon v.

Sec’y, Fla. Dept. of Corrs., No. 17-14935, 2017 WL 5177614, at *3 (11th Cir.

Nov. 8, 2017) (Martin, J., concurring).

      Comparing Hamilton’s case with death row inmate Charles Anderson’s, for

example, demonstrates this unconstitutional arbitrariness. The crimes for which

Charles Anderson was sentenced to death occurred on January 16, 1994, three

months before the crimes in Hamilton’s case. Anderson v. State, 841 So. 2d 390,

395 (Fla. 2003). While Hamilton’s sentence became final in 1998, Anderson’s

sentence did not become final until 2003. Thus, Anderson received Hurst relief,

whereas Hamilton is not even entitled to review of this claim, as the per curiam

opinion concludes. Anderson v. State, 220 So. 3d 1133, 1150 (Fla. 2017).

      Like most defendants whose death sentences have been reviewed by this

Court since Hurst v. Florida and Hurst, Hamilton also raises a claim for relief

pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell, the United

States Supreme Court held that it is “constitutionally impermissible to rest a death

sentence on a determination made by a sentencer who has been led to believe that




                                          -9-
the responsibility for determining the appropriateness of the defendant’s death rests

elsewhere.” 472 U.S. at 328-29. The Court explained:

              In evaluating the various procedures developed by States to
      determine the appropriateness of death, this Court’s Eighth
      Amendment jurisprudence has taken as a given that capital sentencers
      would view their task as the serious one of determining whether a
      specific human being should die at the hands of the State. . . . Belief
      in the truth of the assumption that sentencers treat their power to
      determine the appropriateness of death as an “awesome
      responsibility” has allowed this Court to view sentencer discretion as
      consistent with—and indeed as indispensable to—the Eighth
      Amendment’s “need for reliability in the determination that death is
      the appropriate punishment in a specific case.” Woodson v. North
      Carolina, [428 U.S.] at 305 (plurality opinion).
              ....
              In the capital sentencing context there are specific reasons to
      fear substantial unreliability as well as bias in favor of death sentences
      when there are state-induced suggestions that the sentencing jury may
      shift its sense of responsibility to an appellate court.
              ....
              This Court has always premised its capital punishment
      decisions on the assumption that a capital sentencing jury recognizes
      the gravity of its task and proceeds with the appropriate awareness of
      its “truly awesome responsibility.” In this case, the State sought to
      minimize the jury’s sense of responsibility for determining the
      appropriateness of death. Because we cannot say that this effort had
      no effect on the sentencing decision, that decision does not meet the
      standard of reliability that the Eighth Amendment requires.

Id. at 329-41 (emphasis added). Based on this lack of reliability, the Supreme

Court vacated the sentence of death. Id. at 341.

      Florida’s pre-Hurst jury instructions referred to the advisory nature of the

jury’s recommendation over a dozen times. See Fla. Std. Jury Instr. (Crim.) 7.11

(2016). Further, the jury was only required to make a recommendation between

                                        - 10 -
life or death to the trial court, which then held the ultimate responsibility of making

the requisite factual findings and determining the appropriate sentence. Thus, it

was made abundantly clear to the jury that they were not responsible for rendering

the final sentencing decision. Caldwell, which was decided seventeen years before

Ring, further supports the conclusion that defendants whose sentences were

imposed after a jury nonunanimously recommended a sentence of death should be

eligible for Hurst relief to avoid unconstitutional arbitrariness and ensure reliability

in imposing the death penalty.

      Finally, as to the timeliness of Hamilton’s motion, the per curiam opinion

concludes that “the expiration of the one-year time limitation” for Hamilton to file

his motion under Florida Rule of Criminal Procedure 3.851 expired in 1999, “and

none of the exceptions to the one-year limitation in rule 3.851(d)(2) are applicable

to either of the claims” he raises in his motion. Per curiam op. at 5. However, this

conclusion is inaccurate in light of Hurst v. Florida and Hurst.

      The United States Supreme Court decided Hurst v. Florida on January 12,

2016, establishing a “fundamental constitutional right.” Fla. R. Crim. P.

3.851(d)(2)(B). Hamilton filed the motion at issue on August 24, 2016—before

this Court’s decision in Hurst on October 14, 2016, and before this Court’s

decisions in Asay V and Mosley v. State, 209 So. 3d 1248 (Fla. 2016), regarding the

retroactivity of Hurst v. Florida and Hurst. See per curiam op. at 3. In fact, at a



                                         - 11 -
case management hearing in November 2016—before Asay V and Mosley—the

defense moved for a continuance in anticipation of this Court’s ruling regarding

the retroactivity of the Hurst decision. The circuit court denied the continuance

and denied Hamilton’s successive postconviction motion as untimely.

      Based on the date of the United States Supreme Court’s decision in Hurst v.

Florida and the circuit court’s denial of Hamilton’s request for a continuance to

wait for this Court’s ruling on retroactivity, Hamilton’s motion was well within the

one-year time period for filing a claim under rule 3.851 based on “the fundamental

constitutional right” announced in Hurst v. Florida, which “was not established

within” the one-year time limitation that expired in 1999. Fla. R. Crim. P.

3.851(d)(2)(B). This Court cannot determine that Hamilton’s motion was untimely

now that it knows it denied retroactive application of Hurst to cases like

Hamilton’s when the motion was filed and heard by the circuit court before

retroactivity was denied.

                                  CONCLUSION

      Hamilton should not be denied relief of the fundamental constitutional right

announced in Hurst v. Florida and Hurst based on untimeliness. Further, to ensure

reliability and protect Hamilton’s fundamental constitutional rights, I would apply

Hurst retroactively to his sentence and reverse for a new penalty phase based on

the jury’s nonunanimous recommendation for death. Accordingly, I dissent.



                                        - 12 -
An Appeal from the Circuit Court in and for Hamilton County,
     David William Fina, Judge - Case No. 241994CF000150CFAXMX

Robert S. Friedman, Capital Collateral Regional Counsel, Karin L. Moore and
Stacy R. Biggart, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Northern District of Florida, Tallahassee, Florida,

      Amicus Curiae The Capital Habeas Unit of the Office of the Federal Public
      Defender for the Northern District of Florida




                                      - 13 -
