          Supreme Court of Florida
                                     ____________

                                     No. SC17-1903
                                     ____________

                               JESSE GUARDADO,
                                   Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                   [March 8, 2018]

PER CURIAM.

      This case is before the Court on appeal from an order denying a motion to

vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. We

have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

                   STATEMENT OF THE CASE AND FACTS

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

direct appeal. Guardado v. State, 965 So. 2d 108, 110-12 (Fla. 2007). This Court

affirmed Guardado’s convictions and sentence of death. Id. at 120. This Court

also affirmed the denial of Guardado’s initial postconviction motion. Guardado v.

State, 176 So. 3d 886 (Fla. 2015).
        In 2017, Guardado filed a motion for postconviction relief arguing that he

was entitled to relief pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016). That

motion was continued to give Guardado an opportunity to proceed in this Court

with a habeas petition. Guardado filed a petition for a writ of habeas corpus

arguing that he was entitled to relief pursuant to both Hurst v. Florida and Hurst v.

State, 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). This Court

held:

        We agree with Guardado 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 deny Guardado’s petition. As we stated in Davis v. State,
        207 So. 3d 142, 175 (Fla. 2016):
              [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.

        Accordingly, the Hurst violation in this case is harmless beyond a
        reasonable doubt and, as in Davis, does not entitle Guardado to relief.

Guardado v. Jones, 226 So. 3d 213, 215 (Fla. 2017).

        Subsequently, the circuit court returned to its consideration of Guardado’s

successive motion for postconviction relief and summarily denied Guardado’s

motion, stating:

              The current state of the law indicates Hurst would apply to the
        defendant’s case. See Mosley v. State, 209 So. 3d 1248 (Fla. 2016).
        However, the law is also clear the defendant is not entitled to a new

                                          -2-
      penalty phase based on a harmless error analysis. See Davis v. State,
      207 So. 3d 142 (Fla. 2016). Indeed, this court is bound by the
      decision of the Supreme Court of Florida determining any Hurst error
      in the instant case is harmless beyond a reasonable doubt. Guardado
      v. [Jones], No. SC17-389, 2017 WL 1954984 (Fla. May 11, 2017)
      (denying the defendant’s petition for a writ of habeas corpus);
      Guardado v. [Jones], No.SC17-389, 2017 WL 4150352 (Fla. Sept. 19,
      2017) (denying the defendant’s motion for rehearing). Therefore, the
      defendant is not entitled to relief under Hurst. As a result, the instant
      motion is denied.

Guardado v. State, No. 2004-CF-000903, order at 2-3 (Fla. 1st. Cir. Sept. 27,

2017).

      Guardado filed the instant appeal. On October 31, 2017, this Court issued

an order to show cause why the lower court’s order should not be affirmed.

                                  DISCUSSION

      Guardado’s argument here is nearly identical to that contained in his petition

for a writ of habeas corpus filed in this Court on March 8, 2017, which this Court

denied in Guardado v. Jones, 226 So. 3d at 215. The proceedings below

originated on July 5, 2016, but were continued to permit Guardado to seek Hurst

relief from this Court via his habeas proceedings. After this Court denied

Guardado’s habeas petition, the postconviction proceedings resumed and the

circuit court denied Guardado’s motion. Order at 1.

      The circuit court correctly concluded that this Court has addressed

Guardado’s claims. Guardado’s arguments in the present appeal are

indistinguishable from those contained in his habeas petition.


                                        -3-
          Further, we have considered and rejected Guardado’s claim that Caldwell v.

Mississippi, 472 U.S. 320 (1985), and Sullivan v. Louisiana, 508 U.S. 275 (1993),

affect this Court’s harmless error analysis in Hurst. See, e.g., Franklin v. State, 43

Fla. L. Weekly S86 (Fla. Feb. 15, 2018); Truehill v. State, 211 So. 3d 930 (Fla.

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

(2017).

          Because Guardado’s claims have been previously rejected, we affirm the

circuit court’s summary denial of Guardado’s successive motion for postconviction

relief.

          It is so ordered.

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

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

An Appeal from the Circuit Court in and for Walton County,
     Kelvin C. Wells, Judge - Case No. 662004CF000903CFAXMX

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 Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

          for Appellee


                                          -4-
