          Supreme Court of Florida
                                  ____________

                                  No. SC17-1640
                                  ____________

                        MICHAEL ANTHONY TANZI,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  [April 5, 2018]

PER CURIAM.

      Michael A. Tanzi appeals an order denying a motion to vacate judgments of

conviction, including one of first-degree murder, and a sentence of death under

Florida Rule of Criminal Procedure 3.851.1

      The underlying facts of this case were described in this Court’s opinion on

direct appeal. Tanzi v. State, 964 So. 2d 106, 110-12 (Fla. 2007). Tanzi pled

guilty to the first-degree murder of Janet Acosta. Id. at 111. He carjacked,

kidnapped, beat, sexually battered, robbed, and strangled Ms. Acosta. Id. at 110-




      1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
11. Following a unanimous jury recommendation for death, the trial court

sentenced Tanzi to death for Ms. Acosta’s murder. Id. at 111. The trial court

found seven aggravating factors2 and ten mitigating circumstances.3 We affirmed

Tanzi’s convictions and sentence of death. Id. at 121. We also affirmed the denial

of Tanzi’s initial postconviction motion and denied relief on his habeas petition.

Tanzi v. State, 94 So. 3d 482, 497 (Fla. 2012).

      In this successive postconviction motion, Tanzi argues that he is entitled to

relief pursuant to 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). We agree



      2. The trial court found the following aggravating factors: (1) that the
murder was committed by a person previously convicted of a felony and under
sentence of imprisonment or on felony probation; (2) that the murder was
committed during the commission of a kidnapping; (3) that the murder was
committed during the commission of two sexual batteries; (4) that the crime was
committed for the purpose of avoiding arrest; (5) that the murder was committed
for pecuniary gain; (6) that the murder was especially heinous, atrocious, or cruel
(HAC); and (7) that the murder was committed in a cold, calculated, and
premeditated (CCP) manner. Tanzi, 964 So. 2d at 111 n.1. “The court gave each
aggravator ‘great weight’ except the HAC aggravator, which the court gave
‘utmost weight.’ ” Id.
       3. The court found the following mitigating circumstances: (1) that Tanzi
suffered from “axis two” personality disorders; (2) that he was institutionalized as
a youth; (3) that his behavior benefited from psychotropic drugs; (4) that he lost his
father at an early age; (5) that he was sexually abused as a child; (6) that he twice
attempted to join the military; (7) that he cooperated with law enforcement; (8) that
he assisted inmates by writing letters and that he enjoys reading; (9) that his family
has a loving relationship for him; and (10) that he had a history of substance abuse.
Tanzi, 964 So. 2d at 111 n.1.


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with Tanzi that Hurst is applicable in his case. See Mosley v. State, 209 So. 3d

1248 (Fla. 2016). However, because we find that the Hurst error in this case is

harmless beyond a reasonable doubt, we affirm the denial of postconviction relief.

As we stated in Davis v. State, 207 So. 3d 142, 175 (Fla. 2016), cert. denied, 137

S. Ct. 2218 (2017):

      [T]he jury unanimously found all of the necessary facts for the
      imposition of death sentences by virtue of its unanimous
      recommendations. . . . . The unanimous recommendations here are
      precisely what we determined in Hurst to be constitutionally
      necessary to impose a sentence of death.

      We reject Tanzi’s assertion that the Hurst error was not harmless

because the jury was not given a mercy instruction. See Knight v. State, 225

So. 3d 661, 683 (Fla. 2017), cert. denied, No. 17-7099 (U.S. Mar. 19, 2018).

      Additionally, we reject Tanzi’s Hurst-induced Caldwell4 claim. See

Reynolds v. State, No. SC17-793, slip op. at 26-36 (Fla. Apr. 5, 2018).

      Accordingly, the Hurst violation in this case is harmless beyond a

reasonable doubt and, as in Davis, does not entitle Tanzi to relief. Thus, we

affirm the denial of postconviction relief.5




      4. Caldwell v. Mississippi, 472 U.S. 320 (1985).

      5. We also reject Tanzi’s claim that the change in law following Hurst and
Perry v. State, 210 So. 3d 630 (Fla. 2016), entitles him to have his previously
denied postconviction claims revisited.


                                         -3-
      It is so ordered.

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

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

QUINCE, J., dissenting.

      I cannot agree with the majority’s finding that the Hurst error was harmless

beyond a reasonable doubt. As I have stated previously, “[b]ecause Hurst requires

‘a jury, not a judge, to find each fact necessary to impose a sentence of death,’ the

error cannot be harmless where such a factual determination was not made.” Hall

v. State, 212 So. 3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring in part and

dissenting in part) (citation omitted) (quoting Hurst v. Florida, 136 S. Ct. 616, 619

(2016)); see also Truehill v. State, 211 So. 3d 930, 961 (Fla.) (Quince, J.,

concurring in part and dissenting in part), cert. denied, 138 S. Ct. 3 (2017). The

jury did not make the specific factual findings that Hurst requires a jury to find in

order to impose some of the most serious aggravators at issue in this case.

Therefore, I dissent.

An Appeal from the Circuit Court in and for Monroe County,
     Luis M. Garcia, Judge - Case No. 442000CF000573000AKW

Neal Dupree, Capital Collateral Regional Counsel, Scott Gavin, Staff Attorney,
and Paul Kalil, Assistant Capital Collateral Regional Counsel, Southern Region,
Fort Lauderdale, Florida,


                                         -4-
      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,

      for Appellee




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