          Supreme Court of Florida
                                   ____________

                                   No. SC17-337
                                   ____________

                              STATE OF FLORIDA,
                                  Appellant,

                                          vs.

                         WILLIAM FRANCES SILVIA,
                                 Appellee.

                                 [February 1, 2018]

PER CURIAM.

      The issue in this case is whether William Frances Silvia’s original, valid

waiver of postconviction proceedings and counsel precludes him from claiming a

right to relief under Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied,

137 S. Ct. 2161 (2017). This Court has jurisdiction. See art. V, § 3(b)(1), Fla.

Const. Silvia is a prisoner under sentence of death whose sentence, which was

imposed after a jury recommended death by a vote of 11-1, became final on June 6,

2011. See Silvia v. State, 60 So. 3d 959, 966 (Fla. 2011).

      This Court fully explained the facts underlying Silvia’s sentence of death in

its opinion on direct appeal. Id. at 963-64. On direct appeal, Silvia argued, among
other claims, that Florida’s capital sentencing scheme was unconstitutional under

the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S. 584

(2002), which provided the underpinnings of the United States Supreme Court’s

opinion in Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst. See Silvia, 60 So. 3d

at 978. This Court denied the claim and affirmed Silvia’s convictions and

sentences. Id.

      In 2012, Silvia waived his right to postconviction proceedings and counsel.

See Silvia v. State, No. SC12-1863, 2013 WL 5035694, *1 (Fla. Sept. 11, 2013)

(123 So. 3d 1148). Upon review in 2013, this Court “conclude[d] that the trial

court did not abuse its discretion in discharging Silvia’s postconviction counsel and

dismissing postconviction proceedings.” Id. at *2. Silvia does not dispute in this

case the validity of his original waiver.

      Three years after this Court affirmed the dismissal of Silvia’s postconviction

proceedings, the United States Supreme Court decided Hurst v. Florida, and this

Court decided Hurst on remand. After Hurst, Silvia filed a Successive Motion to

Vacate Death Sentence claiming a right to Hurst relief. The postconviction court

concluded that Silvia was not “seeking to reinstate his previously waived

postconviction proceedings because he had changed his mind” but was “seeking to

avail himself of a newly established constitutional right he did not possess at the

time of the waiver.” The court determined that Silvia “could not knowingly and



                                            -2-
voluntarily waive a right . . . he did not possess at the time of the waiver” and,

therefore, found that Silvia “is not precluded from seeking Hurst relief.” Applying

Hurst to Silvia’s sentence, the postconviction court granted Silvia a new penalty

phase. The State appealed.

      The issue in this case is whether Silvia’s waiver of postconviction

proceedings and counsel precludes him from claiming a right to Hurst relief.

Although there is certainly a difference between a defendant who changes his mind

after validly waiving postconviction proceedings and a defendant who asserts a

right to relief under Hurst, we conclude that this distinction does not afford Silvia

any basis for claiming Hurst relief that would entitle him to a new penalty phase.

      In Mullens v. State, 197 So. 3d 16 (Fla. 2016), an analogous case, a

defendant waived the right to a penalty phase jury and then attempted to claim a

right to relief under Hurst. This Court denied relief, explaining that a defendant

“cannot subvert [a] right . . . by waiving that right and then suggesting that a

subsequent development in the law has fundamentally undermined his sentence.”

Id. at 40. In Mullens, this Court held that Hurst does not apply to defendants who

validly waived their right to a penalty phase jury, writing:

              If a defendant remains free to waive his or her right to a jury
      trial, even if such a waiver under the previous law of a different
      jurisdiction automatically imposed judicial factfinding and sentencing,
      we fail to see how Mullens, who was entitled to present mitigating
      evidence to a jury as a matter of Florida law even after he pleaded
      guilty and validly waived that right, can claim error. As our sister

                                         -3-
      courts have recognized, accepting such an argument would encourage
      capital defendants to abuse the judicial process by waiving the right to
      jury sentencing and claiming reversible error upon a judicial sentence
      of death.

Id. at 39-40 (emphasis omitted).

      In this case, Silvia does not challenge the validity of his postconviction

waiver. In fact, in reviewing Silvia’s waiver in 2013, this Court made clear:

             In addition, Silvia indicated that he understood that by waiving
      postconviction proceedings early in the process—before a motion was
      filed—he was losing permanently his right to take advantage of any
      changes that may occur in the law, that he was waiving his right to
      federal review, and that because his attorneys had not yet completed
      their discovery, it was unknown what issues could be raised. Silvia
      acknowledged that he understood everything his attorneys had done to
      date and that his attorneys could discover information that would be
      beneficial to him in postconviction. Silvia indicated that he
      understood that the issues in his case were not fully developed, that
      his attorneys could not proceed further in their investigation without
      his cooperation, and that his attorneys could discover information that
      would be beneficial to him. He nevertheless indicated that he did not
      wish his attorneys to proceed with any further discovery and that he
      was voluntarily waiving his postconviction counsel and proceedings.

Silvia, 2013 WL 5035694, at *2 (emphasis added). Further, at the time of Silvia’s

postconviction waiver in 2012, Ring, which provided the underpinnings for Hurst

v. Florida, had been decided for over a decade and almost all defendants, including

Silvia, had raised a Ring claim on direct appeal. Thus, we conclude that Silvia’s

original, valid postconviction waiver, which he has never contested before this

Court, precludes him from claiming a right to relief under Hurst.




                                        -4-
                                  CONCLUSION

      For the reasons fully explained above, we conclude that Silvia’s valid

postconviction waiver, which included his understanding that “he was losing

permanently his right to take advantage of any changes that may occur in the law,”

Silvia, 2013 WL 5035694, at *2, precludes him from claiming a right to the benefit

of Hurst. Accordingly, we reverse the postconviction court’s order granting Silvia

a new penalty phase and reinstate his death sentence.

      It is so ordered.

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

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

LEWIS, J., dissenting.

      Today this Court advances for the first time a new excuse, not a valid

reason, to push Florida’s death penalty jurisprudence into an unconstitutional

abyss. This case is a classic example which illustrates application of this Court’s

retroactivity approach to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.

State, 202 So. 3d 40 (Fla. 2016), to deny relief to defendants who have fully and

completely preserved the constitutional challenges to Florida’s death sentencing

scheme. This new denial approach results in equal protection and due process



                                        -5-
violations, constitutes cruel and unusual punishment, and the arbitrary and

capricious operation of the death penalty. The Court simply turns its eyes from the

violation of the Sixth, Eighth, and Fourteenth Amendments under the United States

Constitution and the corresponding provisions under our Florida Constitution.

      The construction of our current death penalty dilemma finds its origin in the

issuance of Apprendi v. New Jersey, 530 U.S. 466 (2000). Although it was not a

death penalty case, our high court in Apprendi addressed the issue of requiring a

unanimous jury vote for certain factors. Two years later, in Ring v. Arizona, 536

U.S. 584 (2002), the United States Supreme Court applied the principles of

Apprendi to capital defendants, holding that capital defendants “are entitled to a

jury determination of any fact on which the legislature conditions an increase in

their maximum punishment.” Ring, 536 U.S. at 589. For years after Ring,

defendants facing the death penalty in Florida, including Silvia, attempted to rely

on and asserted that Ring required a unanimous jury verdict to support a valid

death penalty judgment. Over and over and over again the concept addressed in

Ring with regard to unanimous jury verdicts was denied application in death

penalty proceedings in Florida. E.g., Pietri v. State, 885 So. 2d 245, 276 (Fla.

2004) (denying relief because the felony murder aggravator involved

“circumstances submitted to a jury and found to exist beyond a reasonable doubt”);

Sochor v. State, 883 So. 2d 766, 790 (Fla. 2004) (“We previously have addressed



                                        -6-
this [Ring] claim and denied relief.”); Kimbrough v. State, 886 So. 2d 965, 984

(Fla. 2004) (“This Court has previously declined to hold that Florida’s death

penalty scheme is unconstitutional on the basis of Apprendi or Ring.”).

      It was not until January 12, 2016, when the United States Supreme Court

issued Hurst v. Florida that the “fundamental constitutional right” requiring a

unanimous jury verdict arose in death penalty proceedings constructed and built

upon the foundational principles announced earlier in Ring.

      With the issuance of Hurst v. Florida, the logical question arose as to how it

would be applied and the extent to which it would be retroactively applied to those

pending execution of a death sentence. That retroactivity question was answered,

in part, by this Court in Asay v. State, 210 So. 3d 1 (Fla. 2016), when the Court

held that Hurst would retroactively apply to only those cases in which the death

penalty had been imposed on or after the date Ring had been issued in 2002. At

that time, I reasoned in Asay that Hurst should also apply to cases prior to 2002 if

the issue of requiring a unanimous jury verdict had been properly preserved for

review in the proceedings even prior to Ring, relying on James v. State (James I),

615 So. 2d 668, 669 (Fla. 1993). Asay, 210 So. 3d at 30 (Lewis, J., concurring in

result). The Court rejected that reasoning and adopted a fixed retroactive date.

      Within these parameters, cases began flowing to this Court in successive

postconviction motions. Those cases that became final after Ring with unanimous



                                        -7-
jury verdicts for death were denied relief. E.g., King v. State, 211 So. 3d 866, 889-

93 (Fla. 2017); Davis v. State, 207 So. 3d 142, 174-75 (Fla. 2016). Defendants in

cases that became final after Ring in which the defendants had totally waived a

penalty phase jury trial were also denied relief. Mullens v. State, 197 So. 3d 16,

38-40 (Fla. 2016). Until this time, in all other cases in which less than a

unanimous jury verdict for death was returned, the judgment for death has been

quashed and the cases remanded to the trial court for proceedings consistent with

Hurst without regard to any preservation issues. Even those cases in which

defendants conceded during oral argument that Ring did not apply to Florida death

cases based on existing Florida law have received the benefit of Hurst, but Silvia

will not simply because he did not come to this Court for an oral argument on a

postconviction motion having preserved the issue at trial and on direct appeal.

      We now face Silvia in which Silvia has received a post-Ring, nonunanimous

death penalty verdict. Silvia v. State, 60 So. 3d 959, 966 (Fla. 2011). By now, it is

well-established Florida law that Hurst requires unanimity and applies retroactively

to “defendants whose sentences became final after the United States Supreme

Court issued its opinion in Ring.” Mosley v. State, 209 So. 3d 1248, 1276 (Fla.

2016). Thus, regardless of the majority’s unwillingness to mention this fact, Hurst

applies retroactively to Silvia’s case. E.g., Hojan v. State, 212 So. 3d 982, 999

(Fla. 2017) (“Hurst appl[ies] retroactively to defendants, like Hojan, whose



                                         -8-
sentences were not yet final when the Supreme Court issued Ring.”). There have

been many post-Ring, nonunanimous defendants whose various appeals and

postconviction motions were correctly resolved when this Court granted them

Hurst relief. See, e.g., Gregory v. State, 224 So. 3d 719 (Fla. 2017) (post-Ring,

nonunanimous postconviction motion defendant); Jeffries v. State, 222 So. 3d 538

(Fla. 2017) (post-Ring, nonunanimous direct appeal defendant); Bailey v. Jones,

225 So. 3d 776 (Fla. 2017) (post-Ring, nonunanimous habeas corpus petition

defendant). In view of these cases, the appropriate disposition is clear. Yet, for the

first time, the majority decision eschews recent precedent and denies Hurst relief to

a post-Ring, nonunanimous defendant because he did not continue a meritless,

fruitless—and at that point frivolous—Ring challenge in the context of a

postconviction proceeding even though he had asserted that right during trial and

on direct appeal and had fully preserved the argument for appellate purposes.

Silvia, 60 So. 3d at 978. Silvia was not even required to file for postconviction

relief but did file and later withdrew his meritless pleading. This arbitrary denial

of rights treats similarly situated defendants differently. In doing so, Silvia is

being denied equal protection and due process under the law, violating his rights

under the Fourteenth Amendment and article I, section 2 of the Florida

Constitution.




                                          -9-
      Although not specifically stated, the basis for this decision is simple, albeit

misguided. However, by skirting the underlying law, the majority disregards the

real substance of the question presented and develops a holding absent any

precedential support. The decision impliedly relies upon the concept regarding a

waiver of postconviction proceedings. See majority op. at 3. As a general matter,

this Court has held that the waiver of postconviction proceedings is a final

determination. See Trease v. State, 41 So. 3d 119, 126 (Fla. 2010); James v. State

(James II), 974 So. 2d 365, 368 (Fla. 2008). Nevertheless, neither Trease nor

James II determinatively answers the issue in this case. Our James II holding was

actually quite narrow: “[W]e conclude that a mere change of mind is an

insufficient basis for setting aside a previous waiver.” James II, 974 So. 2d at 368

(emphasis added). We explained that James could not overcome his waiver

because there was no dispute that the Durocher1 proceedings were followed and

James “asserted no valid basis for avoiding his waiver.” James II, 974 So. 2d at

368. Likewise, as it concerned reversing the waiver of postconviction proceedings,

Trease held that “because this Court in James[ II] held that a change of mind is

insufficient grounds to set aside a prior valid waiver, we deny Trease’s request to



      1. Durocher v. Singletary, 623 So. 2d 482, 485 (Fla. 1993) (establishing that
a defendant is entitled to waive postconviction proceedings so long as there is an
inquiry conforming to Faretta v. California, 422 U.S. 806 (1975), into the
“knowing, intelligent, and voluntary” nature of the waiver).


                                        - 10 -
reinstate his postconviction proceedings.” Trease, 41 So. 3d at 126. Trease and

James II are factually distinguishable from this case because, here, Silvia did not

simply change his mind like the defendants in those cases. Instead, the trial court

here—which is better positioned than this Court to determine Silvia’s intentions—

specifically found that Silvia “is not seeking to reinstate his previously waived

postconviction proceedings because he has changed his mind. Rather he is seeking

to avail himself of a newly established constitutional right, which has been held to

apply retroactively.” As a result, the trial court here vacated Silvia’s death

sentence. In my view, the constitutional rights generated by Hurst are a sufficient

basis to avoid Silvia’s waiver. Cf. James II, 974 So. 2d at 368 (changing of the

mind was not a sufficient basis). Such a scenario is specifically contemplated as an

exception to the time limitation on postconviction motions under Florida Rule of

Criminal Procedure 3.851:

              (2) No motion shall be filed or considered pursuant to this rule
      if filed beyond the time limitation provided in subdivision (d)(1)[2]
      unless it alleges:
              ....
              (B) the fundamental constitutional right asserted was not
      established within the period provided for in subdivision (d)(1) and
      has been held to apply retroactively . . . .




      2. This subdivision prescribes a one-year time limit on filing an initial
postconviction motion after the sentence becomes final. See Fla. R. Crim. P.
3.851(d)(1).


                                        - 11 -
Fla. R. Crim. P. 3.851(d)(2)(B). Accordingly, nothing in Florida law precludes

Silvia from raising a Hurst claim.

      In the past, this Court has granted relief on changes in the law retroactively

to postconviction defendants who preserved the issue for review on their direct

appeal prior to the change. James I, 615 So. 2d at 669. In James I, we granted

relief to a defendant who had asserted at trial and on direct appeal that the jury

instruction pertaining to the heinous, atrocious, or cruel aggravating circumstance

was unconstitutionally vague before the United States Supreme Court ultimately

reached that same conclusion in Espinosa v. Florida, 505 U.S. 1079 (1992). James

I, 615 So. 2d at 668-69. We concluded that—despite his case becoming final

before the principle of law had a case name—it would be unjust to deprive James

of the benefit of the Supreme Court’s holding in Espinosa after he had properly

presented and preserved such a claim. James I, 615 So. 2d at 669. Similarly, I

believe that defendants who properly preserved the substance of a Ring challenge

at trial and on direct appeal prior to that decision should also be entitled to have

their constitutional challenges heard. Hitchcock v. State, 226 So. 3d 216, 218-19

(Fla. 2017) (Lewis, J., concurring in result); Asay, 210 So. 3d at 30 (Lewis, J.,

concurring in result). Similar to the defendant in James I, Silvia properly

preserved his Ring challenge at trial and on direct appeal. Silvia, 60 So. 3d at 978.




                                         - 12 -
Therefore, Silvia is entitled to Hurst relief. He could not validly waive a

constitutional right that simply did not exist at the time of the alleged waiver.

      In Mosley, this Court recognized that “fundamental fairness alone may

require the retroactive application of certain decisions involving the death penalty

after the United States Supreme Court decides a case that changes our

jurisprudence.” Mosley, 209 So. 3d at 1274-75. There, we cited James I and held

that, “because Mosley raised a Ring claim at his first opportunity and was then

rejected at every turn, we conclude that fundamental fairness requires the

retroactive application of Hurst, which defined the effect of Hurst v. Florida, to

Mosley.” Mosley, 209 So. 3d at 1275. In that case, we further conducted a

standard retroactivity analysis under Witt v. State, 387 So. 2d 922 (Fla. 1980);

however, Mosley clearly stands for the proposition that, under James I, it is

fundamentally unfair to withhold Hurst relief to post-Ring, nonunanimous

defendants who properly raised the issue, regardless of whether they are in this

Court on direct appeal or postconviction motion. Mosley, 209 So. 3d at 1274-75.

Therefore, to deny Hurst relief to Silvia is a violation of his right to due process

under the Fourteenth Amendment and article I, section 9 of the Florida

Constitution. See Gore v. State, 719 So. 2d 1197, 1203 (Fla. 1998) (“Due process

requires that fundamental fairness be observed in each case for each defendant.”).




                                         - 13 -
      As a practical matter, if Silvia had merely re-raised his Ring claim in a

postconviction motion, then he would be entitled to Hurst relief. Yet, at the time

of his postconviction proceedings, any Ring challenge by Silvia was futile,

meritless, and frivolous. See Johnson v. State, 904 So. 2d 400, 406 (Fla. 2005)

(“[V]irtually every postconviction appeal filed in this Court since Ring invokes

that case. We repeatedly have denied such requests for clear lack of merit . . . .”),

abrogated by Jackson v. State, 213 So. 3d 754 (Fla. 2017). Moreover, under this

Court’s broader postconviction standard, it would have been inappropriate for

Silvia to continue his Ring challenge through postconviction proceedings. This

Court has stated,

             The purpose of the Rule 3.850[3] motion is to provide a means
      of inquiry into the alleged constitutional infirmity of a judgment or
      sentence, not to review ordinary trial errors cognizable by means of a
      direct appeal. The motion procedure is neither a second appeal nor a
      substitute for appeal. Matters which were raised on appeal and
      decided adversely to the movant are not cognizable by motion under
      Rule 3.850. Furthermore, any matters which could have been
      presented on appeal are similarly held to be foreclosed from
      consideration by motion under the Rule. Therefore, a Rule 3.850
      motion based upon grounds which either were or could have been
      raised as issues on appeal may be summarily denied.




      3. Today, capital postconviction motions are covered by Florida Rule of
Criminal Procedure 3.851, which was adopted in 1993. See Fla. R. Crim. P. 3.851
cmt. (1993).


                                        - 14 -
McCrae v. State, 437 So. 2d 1388, 1390 (Fla. 1983) (emphasis added) (citations

omitted). Silvia properly preserved the error and unsuccessfully challenged Ring

at trial and on direct appeal. Silvia, 60 So. 3d at 978. Therefore, there was nothing

further for Silvia to challenge relating to the unconstitutionality of Florida’s

previous death scheme through postconviction proceedings and he was not

required to perform a frivolous act. Moreover, nothing requires capital defendants

to pursue postconviction proceedings. Despite this, the majority denies the Hurst

relief that is clearly warranted. Such a decision effectively encourages

postconviction counsel to raise meritless claims, even if they have been decided on

direct appeal, simply to satisfy an arbitrary procedural step in the hope of future

retroactivity.

       Crucially, nothing in this Court’s post-Hurst jurisprudence suggests any

requirement for defendants to have pursued postconviction appeals to receive the

benefit of Hurst. This Court has noted, however, that defendants who waived their

Sixth Amendment right to a jury are precluded from benefitting from Hurst. E.g.,

Mullens, 197 So. 3d at 38-40. Because the defendant in Mullens waived the rights

to which Hurst applied, we correctly concluded that the defendant waived his

entitlement to Hurst relief. Mullens, 197 So. 3d at 38-40. The majority relies on

Mullens as “an analogous case” and its only support for this decision. Majority op.

at 3-4. It never explains why Mullens is analogous, and perhaps that is because



                                         - 15 -
Mullens is inapposite. Mullens totally waived his rights to a penalty phase jury

determination to which Hurst applied. Whereas, here, Silvia simply did not

proceed with postconviction proceedings, which is wholly separate from the Sixth

and Eighth Amendment rights implicated by Hurst. In effect, the majority attempts

to compare a lightning bug to the lightning. A little over one year ago, in Hurst,

this Court waxed poetic about the right to a jury trial as a quintessential right in

both Florida and the United States. Hurst, 202 So. 3d at 53-59. We called this

right our “birthright and inheritance.” Id. at 54 (quoting Duncan v. Louisiana, 391

U.S. 145, 154 (1968)). Yet, now the Court equates waiver of this “birthright” to

not proceeding with postconviction proceedings—which originally were a judicial

creation to efficiently address the “postconviction crisis” caused in Florida by

Gideon v. Wainwright, 372 U.S. 335 (1963). See Baker v. State, 878 So. 2d 1236,

1238-44 (Fla. 2004) (surveying the history of postconviction relief in Florida).

Silvia did not waive his right to a jury and that jury returned a nonunanimous death

recommendation. Quite simply, to deny him relief is to deny him his right to a jury

trial under the Sixth Amendment and article I, section 22 of the Florida

Constitution, along with his right to be free from an arbitrary death penalty under

the Eighth Amendment and article I, section 17 of the Florida Constitution.

      Relatedly, the majority does not make clear whether it treats Silvia’s waiver

of postconviction proceedings as a waiver of his right to habeas corpus. Of course,



                                         - 16 -
habeas corpus constitutes a substantial portion of postconviction proceedings; thus

it would appear that this decision may effectively preclude Silvia and other

similarly situated defendants from filing writs of habeas corpus. If this

understanding is correct, then the decision borders dangerously on a suspension of

these writs to a class of individuals, the right to which is protected under article I,

section 9 of the United States Constitution and article I, section 13 of the Florida

Constitution. In my view, our case law on not proceeding with postconviction

proceedings does not supersede the express language of our Florida Constitution:

“The writ of habeas corpus shall be grantable by right, freely and without cost.”

Art. I, § 13, Fla. Const.

      Finally, this decision is ripe for reversal. As demonstrated above, there are a

number of constitutional claims that Silvia can raise from this decision.

Furthermore, unlike Asay which, despite its faults, relied heavily on Florida’s

adequate and independent retroactivity standard under Witt, Asay, 210 So. 3d at

15-22, this decision does not rely on any standard. The reasoning here amounts to

“this is the answer because I say it is.” Considering the fundamental constitutional

rights at issue, such reasoning is an insufficient basis to deny Hurst relief.

      Based on the foregoing, I would apply Hurst to Silvia’s case, vacate his

death sentence, and remand for resentencing in accordance with the Constitution,

our precedent, and fundamental fairness.



                                         - 17 -
An Appeal from the Circuit Court in and for Seminole County,
     Donna L. Surratt-McIntosh, Judge - Case No. 592006CF004522A000XX

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellant

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Ali A.
Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple
Terrace, Florida,

      for Appellee




                                     - 18 -
