          Supreme Court of Florida
                                   ____________

                                  No. SC17-1118
                                  ____________

                         GARY RICHARD WHITTON,
                                Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                 [January 31, 2018]



PER CURIAM.

      We have for review Gary Richard Whitton’s appeal of the circuit court’s

order denying Whitton’s motion filed pursuant to Florida Rule of Criminal

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

      Whitton’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 Whitton’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, Whitton responded to this Court’s order to

show cause arguing why Hitchcock should not be dispositive in this case.

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

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

Whitton was sentenced to death following a jury’s unanimous recommendation for

death. Whitton v. State, 649 So. 2d 861, 864 (Fla. 1994). Whitton’s sentence of

death became final in 1995. Whitton v. Florida, 516 U.S. 832 (1995). Thus, Hurst

does not apply retroactively to Whitton’s sentence of death. See Hitchcock, 226

So. 3d at 217. Accordingly, we affirm the denial of Whitton’s motion.

      The Court having carefully considered all arguments raised by Whitton, 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 Walton County,
     Michael G. Allen, Judge - Case No. 661990CF000429CFAXMX

                                         -2-
Mark E. Olive of Law Office of Mark Olive, P.A., Tallahassee, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




                                      -3-
