          Supreme Court of Florida
                                  ____________

                                  No. SC18-815
                                  ____________

                           JOHN LOVEMAN REESE,
                                 Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  January 4, 2019

PER CURIAM.

      John Loveman Reese, a prisoner under sentence of death, appeals the circuit

court’s order denying in part and dismissing in part his successive motion for

postconviction relief, which was filed under Florida Rule of Criminal Procedure

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

      In 1993, a jury convicted Reese of first-degree murder, sexual battery with

great force, and burglary with assault. Reese v. State, 694 So. 2d 678, 680 (Fla.

1997). After hearing evidence at the penalty phase, the jury recommended a death

sentence by an eight-to-four vote. Id. The trial judge accepted the

recommendation and imposed a sentence of death. Id. On direct appeal in 1997,

we affirmed the conviction. Id. at 685. However, we found the sentencing order
deficient for failing to “expressly discuss[] and weigh[] the evidence offered in

mitigation,” as required by Campbell v. State, 571 So. 2d 415, 419-20 (Fla. 1990).

Reese, 694 So. 2d at 684. Accordingly, we remanded for the entry of a new

sentencing order. Id. In 1999, we again remanded the sentencing order, directing

the trial court “to conduct a new hearing . . . before determining an appropriate

sentence.” Reese v. State, 728 So. 2d 727, 728 (Fla. 1999). In 2000, we reviewed

the revised sentencing order and affirmed the sentence of death. Reese v. State,

768 So. 2d 1057, 1060 (Fla. 2000). Reese’s conviction and death sentence became

final on March 5, 2001, when the United States Supreme Court denied his petition

for writ of certiorari. Reese v. Florida, 532 U.S. 910 (2001); see Fla. R. Crim. P.

3.851(d)(1)(B).

      In 2009, we affirmed the denial of Reese’s initial motion for postconviction

relief. Reese v. State, 14 So. 3d 913, 920 (Fla. 2009). In 2017, Reese filed a

successive postconviction motion to vacate his death sentence under Hurst v.

Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), and Hurst v. State (Hurst), 202

So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). 1 The circuit court

entered an order summarily denying his claim. This appeal followed.




      1. Reese raised two additional claims: (1) there is a possibility that new
forensic brain scanning technologies will reveal additional mental health
mitigation; and (2) there is a likelihood that he has an intellectual disability under

                                         -2-
      In Asay v. State, 210 So. 3d 1, 22 (Fla. 2016), cert. denied, 138 S. Ct. 41

(2017), we held that Hurst and Hurst v. Florida do not apply retroactively to

defendants whose death sentences were final before the United States Supreme

Court rendered its decision in Ring v. Arizona, 536 U.S. 584 (2002). See

Hitchcock v. State, 226 So. 3d 216, 217 (Fla.) (concluding that Asay denies

“retroactive application of Hurst v. Florida as interpreted in Hurst v. State to

defendants whose death sentences were final when the Supreme Court decided

Ring”), cert. denied, 138 S. Ct. 513 (2017); Mosley v. State, 209 So. 3d 1248, 1274

(Fla. 2016) (“[W]e have . . . held in Asay v. State, that Hurst does not apply

retroactively to capital defendants whose sentences were final before the United

States Supreme Court issued its opinion in Ring.”). Therefore, because Reese’s

sentence became final prior to the issuance of Ring, he is not entitled to relief

under Hurst and Hurst v. Florida.

      Nor is Reese entitled to relief on his other claims. Reese first asserts that our

retroactivity scheme runs afoul of the Fourteenth Amendment’s Equal Protection

Clause. However, in Lambrix v. State, 227 So. 3d 112, 113 (Fla. 2017), we

rejected the claim that our “decisions regarding the retroactivity of Hurst v. Florida

and Hurst violate equal protection.” Similarly without merit is Reese’s contention



Hall v. Florida, 572 U.S. 701 (2014). The circuit court dismissed both claims as
unripe, and Reese did not appeal their dismissal.


                                         -3-
that the retroactivity cutoff at Ring cannot withstand Eighth Amendment scrutiny

because it results in arbitrary and capricious imposition of the death penalty. This

“argument is not novel and has been previously rejected by this Court.” Asay v.

State, 224 So. 3d 695, 703 (Fla. 2017). And Reese’s allegation that his death

sentence violates the Eighth Amendment under Caldwell v. Mississippi, 472 U.S.

320 (1985), is foreclosed by our recent decision in Reynolds v. State, 251 So. 3d

811 (Fla.), cert. denied, 139 S. Ct. 27 (2018). There, we held that “a Caldwell

claim based on the rights announced in Hurst and Hurst v. Florida cannot be used

to retroactively invalidate the jury instructions that were proper at the time under

Florida law.” Reynolds, 251 So. 3d at 825 (citing Romano v. Oklahoma, 512 U.S.

1, 9 (1994)). Accordingly, we affirm the circuit court’s order denying in part and

dismissing in part Reese’s successive motion for postconviction relief.

      It is so ordered.

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

NO MOTION FOR REHEARING WILL BE ALLOWED.




                                         -4-
PARIENTE, J., concurring in result.

      I concur in result because, although I recognize that this Court’s decisions

regarding the retroactivity of Hurst 2 are now final, 3 I would grant a new penalty

phase based on the jury’s nonunanimous recommendation for death by a vote of

eight to four. Per curiam op. at 1. As I have continuously explained, this Court’s

precedent setting the United States Supreme Court’s decision in Ring v. Arizona,

536 U.S. 584 (2002), as the cutoff for Hurst retroactivity results in unconstitutional

arbitrariness. See Hitchcock, 226 So. 3d at 220-21 (Pariente, J., dissenting); Asay

V, 210 So. 3d at 32-36 (Pariente, J., concurring in part and dissenting in part). This

case is one of those very specific instances.

      Although this Court first affirmed Reese’s conviction in 1997, his sentence

of death did not become final until March 2001—thirteen months before Ring. Per

curiam op. at 1-2.4 In fact, in 1999, this Court remanded Reese’s case for the

second time to the trial court to allow the parties to present written and oral

arguments before determining an appropriate sentence. Per curiam op. at 2.



      2. 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).

      3. 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); Mosley v. State, 209 So. 3d 1248 (Fla. 2016).
      4. Reese v. State, 768 So. 2d 1057 (Fla. 2000); Reese v. State, 728 So. 2d
727 (Fla. 1999); Reese v. State, 694 So. 2d 678 (Fla. 1997).

                                         -5-
Similar to the situation in Spencer v. State, 43 Fla. L. Weekly S558 (Fla. Nov. 8,

2018), had “this Court . . . reversed for a new penalty phase rather than remanding

the case for ‘reconsideration’ of the aggravation and mitigation by the trial court,”

Reese would have likely been entitled to Hurst relief. Spencer, 43 Fla. L. Weekly

at S559 (Pariente, J., dissenting); see Mosley, 209 So. 3d at 1283.

      Because Hurst should apply to Reese’s case, I would grant Reese a new

penalty phase.

An Appeal from the Circuit Court in and for Duval County,
     Steven B. Whittington, Judge - Case No. 161992CF004174AXXXMA

Christopher J. Anderson, Neptune Beach, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




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