          Supreme Court of Florida
                                  ____________

                                  No. SC17-824
                                  ____________

                            QUAWN M. FRANKLIN,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                [February 15, 2018]

PER CURIAM.

      Quawn M. Franklin appeals an order of the circuit court summarily denying

a motion to vacate his sentence of death under Florida Rule of Criminal Procedure

3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that

follow, we affirm the postconviction court’s summary denial of Franklin’s

postconviction motion.

                   FACTS AND PROCEDURAL HISTORY

      Franklin was convicted of attempted robbery and first-degree murder in the

shooting death of Jerry Lawley. Franklin v. State (Franklin I), 965 So. 2d 79, 84-

86 (Fla. 2007). After the penalty phase, the jury unanimously recommended death.
Id. at 87. At Franklin’s request, the jury returned a special interrogatory verdict

form indicating that it unanimously found each of the four proposed aggravators.

Id. at 102.1 The trial court followed the jury’s recommendation and imposed a

death sentence. In doing so, the trial court found the same four aggravating factors

and concluded that the aggravators outweighed the mitigating factors. Id. at 88.2


      1. The jury found the following four aggravators:

      (1) the murder was committed while Franklin was serving a prison
      sentence because he was on conditional release at the time of
      Lawley’s shooting; (2) Franklin had previous violent felony
      convictions, including another capital felony for the murder of Horan;
      (3) Lawley’s murder was committed for pecuniary gain; and (4) the
      murder was cold, calculated, and premediated (CCP).
Id. at 87-88.

      2. The trial court found the following ten nonstatutory mitigators:

      (1) there were deficiencies in Franklin’s upbringing which included
      being forcibly removed by his biological mother from the only mother
      and father he had known for eight years (given some weight); (2)
      Franklin had been sentenced to adult prison at a young age and served
      eight years of a ten-year sentence, which was a severe sentence in
      light of his prior record (given little weight); (3) Franklin had
      cooperated with law enforcement after his arrest (given some weight);
      (4) Franklin took responsibility for his crimes by confessing to the
      police and a newspaper reporter (given some weight); (5) Franklin had
      offered to plead guilty in return for a life sentence without possibility
      of parole that would run consecutive to his other life sentences (given
      little weight); (6) Franklin apologized to the victim’s family, showed
      remorse, and confessed to other offenses which were used as
      aggravating circumstances (given some weight); (7) Franklin
      apologized and showed remorse for his other crimes (given little
      weight); (8) Franklin had entered pleas in his related cases and had


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This Court affirmed Franklin’s conviction and death sentence on direct appeal. Id.

at 102.3

       On November 7, 2008, Franklin filed his first rule 3.851 motion in the

circuit court and moved for a competency determination. Franklin v. State

(Franklin II), 137 So. 3d 969, 977 (Fla. 2014). On June 3, 2010, the trial court



       been sentenced to life (given some weight); (9) there was no one
       available to testify on Franklin’s behalf in the penalty phase (given
       some weight); and (10) codefendant McCoy received a thirty-five-
       year sentence for her role in the crimes (given little weight).

Id. at 88 n.4.
       3. Franklin raised the following claims on direct appeal:
       (1) the admission of hearsay statements relating to his prior violent
       felony convictions during the penalty phase violated his constitutional
       right to confront witnesses in light of the United States Supreme
       Court’s recent decision in Crawford v. Washington, 541 U.S. 36
       (2004); (2) the trial court erred in admitting the objected-to portions of
       Franklin’s taped interview with the newspaper reporter; (3) the guilt
       phase admission of hearsay statements made by the victim also
       constituted a Crawford violation; (4) the trial court erred by refusing
       to accept Franklin’s stipulation to his prior violent felony convictions
       in lieu of testimony regarding the crimes; (5) improper victim impact
       evidence was presented to the jury; (6) the CCP aggravating factor
       was not properly found; (7) the pecuniary gain aggravating factor was
       not properly found; and (8) Florida’s capital sentencing statute is
       facially unconstitutional under Ring[v. Arizona, 536 U.S. 584 (2002),]
       because the judge rather than the jury determines the sentence to be
       imposed.

Id. at 88.



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found Franklin competent to proceed. Id. Franklin then amended his

postconviction motion, raising eleven claims. Id.4 The postconviction court

summarily denied claims three through eight, as well as claim ten. Id. at 977-78.

Following an evidentiary hearing, the postconviction court denied claims one, two,

nine, and eleven. Id. at 978. Franklin sought relief in this Court, raising three




         4. Franklin raised the following eleven claims before the postconviction
court:
         (1) ineffective assistance of penalty phase trial counsel; (2) ineffective
         assistance of penalty phase trial counsel by failing to call Dr. Douglas
         Mason; (3) ineffective assistance of trial counsel during voir dire; (4)
         ineffective assistance of trial counsel by failing to file a motion for a
         change of venue; (5) ineffective assistance of trial counsel in failing to
         inform the jury of Franklin’s ineligibility for parole; (6) Florida’s
         method of execution by lethal injection violates both the Florida and
         United States Constitutions; (7) Franklin is prohibited from knowing
         the identity of the execution team members in violation of his rights
         under the Florida and United States Constitutions; (8) ineffective
         assistance of trial counsel pertaining to Franklin’s competency; (9)
         ineffective assistance of trial counsel by failing to investigate and
         present an insanity defense; (10) Franklin’s right against cruel and
         unusual punishment will be violated because he may be incompetent
         at the time of execution; and (11) cumulative error deprived Franklin
         of a fundamentally fair trial.

Id. at 978 n.5.



                                           -4-
claims, and filed a petition for writ of habeas corpus that raised two claims.5 This

Court affirmed the postconviction court’s order. Id. at 987.

      Franklin filed a successive postconviction motion on January 9, 2017,

raising two claims: (1) his death sentence is unconstitutional under Hurst v.

Florida, 136 S. Ct. 616 (2016), and (2) his death sentence stands in violation of the

Eighth Amendment under Hurst v. Florida. The postconviction court denied the

motion, finding that “the Hurst error was harmless beyond a reasonable doubt as

the jury returned an interrogatory verdict unanimously agreeing that each of the

four aggravating factors were present and unanimously recommending that death

was the appropriate sentence given the substantial aggravation and slight




      5. On appeal, Franklin raised the following five claims:

      (1) the postconviction court erred in finding him competent to proceed
      in his postconviction proceedings; (2) the postconviction court erred
      in denying his claim of ineffective assistance of trial counsel during
      the penalty phase; (3) the postconviction court erred in summarily
      denying his claim that trial counsel were ineffective during voir dire
      and for failing to file a motion for a change of venue; (4) Florida’s
      method of execution for lethal injection is cruel and unusual
      punishment and would deprive him of his due process and equal
      protection rights under the United States Constitution (habeas claim);
      and (5) his right against cruel and unusual punishment under the
      Eighth Amendment to the United States Constitution will be violated
      because he may be incompetent at the time of execution (habeas
      claim).

Id. at 978.


                                        -5-
mitigation presented.” Franklin appealed the postconviction court’s order on April

28, 2017. On June 20, 2017, this Court issued an order directing the parties to file

briefs addressing why the ruling should not be affirmed in light of this Court’s

precedent in Hurst.

                                    ANALYSIS

      Franklin argues that his death sentence violates the Sixth Amendment under

Hurst v. Florida, 136 S. Ct. 616 (2016). In Hurst v. State, 202 So. 3d 40, 57 (Fla.

2016), we explained that Hurst v. Florida requires “the jury in a capital case [to]

unanimously and expressly find all the aggravating factors that were proven

beyond a reasonable doubt, unanimously find that the aggravating factors are

sufficient to impose death, unanimously find that the aggravating factors outweigh

the mitigating circumstances, and unanimously recommend a sentence of death.”

We also determined that Hurst error is capable of harmless error review. Id. at 67.

Therefore, the issue in this case is whether any Hurst error during Franklin’s

penalty phase proceedings was harmless beyond a reasonable doubt. Id. at 68.

      Franklin’s penalty phase jury found the existence of each aggravator

unanimously and made a unanimous recommendation of death using an

interrogatory verdict form. Such a recommendation “allow[s] us to conclude

beyond a reasonable doubt that a rational jury would have unanimously found that

there were sufficient aggravators to outweigh the mitigating factors.” Davis v.


                                        -6-
State, 207 So. 3d 142, 174 (Fla. 2016). Although the jury was not properly

instructed under Hurst, and despite the mitigation presented, the jury still

unanimously recommended that Franklin be sentenced to death for the murder of

Lawley. Therefore, any Hurst error in Franklin’s penalty phase was harmless

beyond a reasonable doubt and the postconviction court properly denied relief on

this claim.

      Franklin also contends that a unanimous jury recommendation violates the

Eighth Amendment pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985),

when a jury is repeatedly told that its role is advisory. Franklin further claims that

his death sentence violates the Eighth Amendment under Hurst because the

standard jury instructions improperly diminished the jury’s role. Franklin’s

Caldwell claim is procedurally barred because he did not raise it on direct appeal.

See Jones v. State, 928 So. 2d 1178, 1182 n.5 (Fla. 2006). To the extent that

Franklin’s claim about the standard jury instructions is a Hurst claim, he is not

entitled to relief because of the jury’s unanimous recommendation of death and

unanimous finding of all four aggravating factors. See Davis, 207 So. 3d at 174.

      Procedural bar notwithstanding, prior to Hurst, we repeatedly rejected

Caldwell challenges to the standard jury instructions used during Franklin’s trial.

See Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d

663, 673-74 (Fla. 2004). We have also rejected Caldwell-related Hurst claims like


                                         -7-
Franklin’s pursuant to Davis. See Oliver v. State, 214 So. 3d 606 (Fla. 2017);

Truehill v. State, 211 So. 3d 930 (Fla 2017). Recently, the defendants in Oliver

and Truehill petitioned the United States Supreme Court for a writ of certiorari to

review their Caldwell claims, which the Court denied. Truehill v. Florida, 138 S.

Ct. 3 (2017). Franklin, whose sentence was final post-Ring and who received a

unanimous jury recommendation, is not entitled to Hurst relief. See Davis, 207 So.

3d at 174. Accordingly, Franklin is not entitled to relief on this claim.

      Based on the foregoing, we affirm the decision of the postconviction court

and deny relief on Franklin’s claims.

      It is so ordered.

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

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

An Appeal from the Circuit Court in and for Lake County,
     Mark J. Hill, Judge - Case No. 352002CF000217AXXXXX

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Maria Christine
Perinetti, Raheela Ahmed, Reuben Andrew Neff, and Lisa Marie Bort, Assistant
Capital Collateral Regional Counsel, Middle Region, Temple Terrace, 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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