                Supreme Court of Florida
                          THURSDAY, APRIL 26, 2018

                                                            CASE NO.: SC17-869
                                                            Lower Tribunal No(s).:
                                                         481996CF005639000AOX

STEVEN MAURICE EVANS                     vs.    STATE OF FLORIDA

Appellant(s)                                    Appellee(s)

      Appellant’s Motion for Rehearing is hereby denied.

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

PARIENTE, J., concurring in result.

      I concur in the denial of rehearing because I recognize that this Court’s

decisions regarding Hurst1 retroactivity are final.2 I write separately to emphasize

how this case demonstrates the unconstitutional arbitrariness created by this




      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. See, e.g., Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S.
Ct. 513 (2017); Asay v. State (Asay V), 210 So. 3d 1 (Fla. 2016), cert. denied, 138
S. Ct. 41 (2017).
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Court’s Ring3 cutoff. See Evans v. State, 43 Fla. L. Weekly S29 (Fla. Jan. 24,

2018).

                                 BACKGROUND

      Evans was convicted of first-degree murder for crimes committed on April

26, 1996, and sentenced to death following a jury’s nonunanimous

recommendation for death. Evans v. State, 800 So. 3d 182, 185-86 (Fla. 2001).

This Court’s opinion on direct appeal in October 2001 affirmed Evans’ first-degree

murder conviction and sentence of death. Id. at 187. This Court denied rehearing

in December 2001. Id.

      Following this Court’s opinion on direct appeal, Evans’ counsel, George

Burden, an assistant public defender who has handled many capital appeals,

attempted to file a petition for a writ of certiorari with the United States Supreme

Court. According to a letter from the United States Supreme Court to Mr. Burden

dated April 22, 2002, the Supreme Court received the petition on March 20, 2002,

but returned it for failure to comply with several Supreme Court rules. The

Supreme Court’s letter gave Mr. Burden sixty days to “correct and resubmit” the




      3. Ring v. Arizona, 536 U.S. 584 (2002).
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petition; otherwise, “the petition [would] not be filed.” Sixty days from the date of

the Supreme Court’s letter was June 22, 2002. For “unknown reasons,” neither

Evans nor Mr. Burden submitted a corrected petition to the United States Supreme

Court. Mot. for Reh’g at 2. As a result, this Court determined in its January 24,

2018, opinion that Evans’ sentence of death became final in March 2002. Evans,

43 Fla. L. Weekly at S29; see Fla. R. Crim. P. 3.851(d)(1). Accordingly, this Court

denied Evans’ claim to Hurst relief pursuant to Hitchcock. Id.

                                    ANALYSIS

      In his motion for rehearing, Evans argues that this Court should grant

rehearing for two reasons: (1) this Court’s January 24, 2018, opinion incorrectly

determined that his sentence of death became final in March 2002, and (2) “[a]t the

very least, this Court should remand this case for an evidentiary hearing to

determine whether [Evans’] mental illness was a factor in the non-refiling of the

certiorari petition” with the United States Supreme Court. Mot. for Reh’g at 2.

Each is addressed in turn below.

1. Date Evans’ Sentence of Death Became Final

      First, Evans argues that this Court should have determined that his sentence

of death became final on June 22, 2002—the deadline given by the United States
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Supreme Court for refiling Evans’ petition for a writ of certiorari from this Court’s

opinion on direct appeal. Evans further argues that this Court’s Ring cutoff for

determining Hurst retroactivity is arbitrary and capricious because, had Mr.

Burden refiled the petition by the Supreme Court’s deadline, it would have been

pending when the Supreme Court decided Ring days later. Resp. to This Ct’s

Order to Show Cause at 2. In turn, Evans argues, this Court would have applied

Hurst retroactively to his sentence of death. See Mosley v. State, 209 So. 3d 1248,

1283 (Fla. 2016). While I believe that the Court properly determined that Evans’

sentence became final in March 2002 due to the absence of a properly filed petition

for a writ of certiorari, I also agree with Evans that his case rises and falls on “a

fatal accident of timing” that demonstrates the unconstitutional arbitrariness

created by this Court’s Ring cutoff. Resp. to This Ct’s Order to Show Cause at 8.

      Two days after the Supreme Court’s sixty-day deadline in Evans’ case, on

June 24, 2002, the Supreme Court decided Ring. Had Evans or Mr. Burden

properly sought certiorari in March or corrected the petition by the June 22

deadline, the date of the United States Supreme Court’s subsequent decision,

assuming it was a denial of certiorari, would have served as the date Evans’

conviction and sentence became final. Presumably, under either of these
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circumstances, Evans would have fallen on the other side of this Court’s Ring

cutoff and would, therefore, be entitled to the retroactive application of Hurst.

Thus, Evans’ case shows how this Court’s Ring cutoff for Hurst retroactivity

creates arbitrariness that has no proper place in death penalty jurisprudence.

      As Justice Perry explained, dissenting in Asay V, the majority’s retroactivity

decisions determined “that in capital cases where the Sixth Amendment rights of

hundreds of persons were violated, it is appropriate to arbitrarily draw a line

between June 23 and June 24, 2002—the day before and the day after Ring was

decided.” 210 So. 3d at 38 (Perry, J., dissenting). Likewise, in my concurring in

part and dissenting in part opinion in Asay V, I explained that “[t]he majority’s

conclusion results in an unintended arbitrariness as to who receives relief

depending on when the defendant was sentenced or, in some cases, resentenced.”

Id. at 36 (Pariente, J., concurring in part and dissenting in part).

      When the Court applied its retroactivity decision from Asay V to the Eighth

Amendment rights announced in Hurst, I dissented, explaining:

      To deny . . . relief when other similarly situated defendants have been
      granted relief amounts to a denial of due process. The Eighth
      Amendment and due process arguments presented here and not
      addressed by the majority in Asay [V], in addition to the Sixth
      Amendment right announced in Hurst v. Florida and Hurst, “create[ ]
      the rare situation in which finality yields to fundamental fairness in
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      order to ensure that the constitutional rights of all capital defendants
      in Florida are upheld.” [Asay V], 210 So. 3d 1, 35 (Fla.
      2016) (Pariente, J., concurring in part, dissenting in part) (citing Witt
      v. State, 387 So. 2d 922, 925 (Fla. 1980)), petition for cert. filed, No.
      16–9033 (U.S. Apr. 29, 2017). . . .
             ....
             For the same reasons I conclude that the right announced
      in Hurst under the right to jury trial (Sixth Amendment and article I,
      section 22, of the Florida Constitution) requires full retroactivity, I
      would conclude that the right to a unanimous jury recommendation of
      death announced in Hurst under the Eighth Amendment requires full
      retroactivity. As I stated in Asay [V], “To avoid . . . arbitrariness and
      to ensure uniformity and fundamental fairness in Florida’s capital
      sentencing, our opinion in Hurst should be applied retroactively
      to all death sentences. [Id. at 36] (Pariente, J., concurring in part,
      dissenting in part) (emphasis added). In addition to the arbitrariness
      of the imposition of the death penalty as described by Justice Breyer,
      joined by Justice Ginsburg, this Court imposes another layer of
      arbitrariness in determining which defendants will receive relief,
      based on the critical right to a jury trial and a unanimous jury
      recommendation.

Hitchcock, 226 So. 3d at 220-21 (Pariente, J., dissenting) (footnote omitted).

      Evans’ case, in which Hurst retroactivity depends on a mere three months or

three days, shows precisely why I believe the majority’s approach to Hurst

retroactivity violates the United States and Florida Constitutions, as I have

explained numerous times.

2. Evidentiary Hearing

      Evans next argues that this Court should grant an evidentiary hearing to
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consider whether his mental illness contributed to the failure to refile the petition

for a writ of certiorari. Because this Court has previously considered Evans’

mental health, both on direct appeal and postconviction, where Evans did not argue

that counsel was ineffective for failing to refile the petition for a writ of certiorari, I

agree with the Court that Evans is not entitled to rehearing or an evidentiary

hearing on this claim. Evans v. State, 975 So. 2d 1035, 1040-41 (Fla. 2007);

Evans, 800 So. 2d at 188, 197.

                                    CONCLUSION

       Recognizing that Asay V and Hitchcock are final, I agree with the denial of

rehearing but write to emphasize, as fully explained above, that this case

demonstrates the unconstitutional arbitrariness created by this Court’s Ring cutoff

for Hurst retroactivity.

A True Copy
Test:
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so
Served:

DAVID DIXON HENDRY
JAMES L. DRISCOLL JR.
GREGORY W. BROWN
DORIS MEACHAM
HON. TIFFANY MOORE RUSSELL, CLERK
HON. LISA TAYLOR MUNYON, JUDGE
KENNETH SLOAN NUNNELLEY
HON. FREDERICK J. LAUTEN, CHIEF JUDGE
