          Supreme Court of Florida
                                   ____________

                                  No. SC17-1141
                                  ____________

                             KEVIN DON FOSTER,
                                  Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                 [January 29, 2018]



PER CURIAM.

      We have for review Kevin Don Foster’s appeal of the circuit court’s order

denying Foster’s motion filed pursuant to Florida Rule of Criminal Procedure

3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      Foster’s motion sought relief pursuant to the United States Supreme Court’s

decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and our decision on remand in

Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161

(2017). This Court stayed Foster’s appeal pending the disposition of Hitchcock v.

State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017). After this
Court decided Hitchcock, Foster responded to this Court’s order to show cause

arguing why Hitchcock should not be dispositive in this case.

      After reviewing Foster’s response to the order to show cause, as well as the

State’s arguments in reply, we conclude that Foster is not entitled to relief. Foster

was sentenced to death following a jury’s recommendation for death by a vote of

nine to three, and his sentence of death became final in 2001. Foster v. State, 778

So. 2d 906, 912 (Fla. 2000). Thus, Hurst does not apply retroactively to Foster’s

sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the

denial of Foster’s motion.

      The Court having carefully considered all arguments raised by Foster, we

caution that any rehearing motion containing reargument will be stricken. It is so

ordered.

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

PARIENTE, J., concurring in result.

      I concur in result because I recognize that this Court’s opinion in Hitchcock

v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017), is now

final. However, I continue to adhere to the views expressed in my dissenting

opinion in Hitchcock.

An Appeal from the Circuit Court in and for Lee County,
     Joseph Cardwell Fuller, Jr., Judge - Case No. 361996CF001362000BCH

                                         -2-
Neal Dupree, Capital Collateral Regional Counsel, Jason Kruszka, Staff Attorney,
and Scott Gavin, Assistant Capital Collateral Regional Counsel, Southern Region,
Ft. Lauderdale, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




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