          Supreme Court of Florida
                                  ____________

                                  No. SC17-711
                                  ____________

                        LENARD JAMES PHILMORE,
                                Appellant,

                                         vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                [January 25, 2018]

PER CURIAM.

      Lenard James Philmore is a prisoner under sentence of death whose sentence

became final on October 7, 2002. See Philmore v. State, 820 So. 2d 919 (Fla.),

cert. denied, 537 U.S. 895 (2002). The facts underlying Philmore’s sentence of

death, which was imposed after a jury unanimously recommended death, id. at

925, were fully explained in this Court’s opinion on direct appeal. Id. at 923-25.

Following the United States Supreme Court’s decision in Hurst v. Florida, 136 S.

Ct. 616 (2016), and this Court’s decision on remand in Hurst v. State (Hurst), 202

So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017), Philmore filed a

successive motion for postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.851, arguing that these decisions render his death sentence

unconstitutional under both the United States and Florida Constitutions.1 This

Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons explained

below, we affirm the postconviction court’s order denying relief.

      As the postconviction court found, Hurst applies retroactively to Philmore’s

sentence of death. See Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016). In its

order below, the postconviction court found “beyond a reasonable doubt that any

Hurst error was harmless,” stating:

      This was a highly aggravated case, the jury was instructed that the
      aggravators must be established beyond a reasonable doubt, the
      evidence supporting the aggravators for prior and contemporaneous
      violent felony convictions was significant and uncontested, there was
      no statutory mitigation, the nonstatutory mitigation was minimal, the
      jury was not required to recommend death if the aggravators
      outweighed the mitigators, and the jury recommendation was
      unanimous. And to date, the Florida Supreme Court has not found
      Hurst error harmful in any unanimous jury cases.

(Citation omitted.) Based on the jury’s unanimous recommendation for a sentence

of death, coupled with Philmore’s confession and the aggravation in this case, we

agree with the postconviction court that the Hurst error in Philmore’s case is



       1. Specifically, Philmore relied on Hurst v. Florida and Hurst to argue in the
court below that his death sentence is unconstitutional under the Fifth, Sixth, and
Eighth Amendments to the United States Constitution, as well as the corresponding
provisions of the Florida Constitution. Philmore’s Eighth Amendment claim also
includes the assertion that the jury was improperly instructed as to its sentencing
responsibility pursuant to Caldwell v. Mississippi, 472 U.S. 320 (1985).

                                        -2-
harmless beyond a reasonable doubt. See Davis v. State, 207 So. 3d 142, 173-75

(Fla. 2016), cert. denied, 137 S. Ct. 2218 (2017).

      As to Philmore’s other claims alleging due process and Eighth Amendment

violations, we conclude that Philmore is not entitled to relief on these claims

because the jury’s unanimous recommendation renders any Hurst error harmless

beyond a reasonable doubt.

      Finally, Philmore is not entitled to relitigate his Batson v. Kentucky, 476

U.S. 79 (1986), claim in light of Hurst, which does not affect the merits of a

Batson claim. A Batson claim addresses who sits on the jury while Hurst affects

what the jury must do, once empaneled, in order to constitutionally sentence the

defendant to death.

      Accordingly, we affirm the postconviction court’s order denying relief.

      It is so ordered.

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

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

LAWSON, J., concurring specially.

      See Okafor v. State, 225 So. 3d 768, 775-76 (Fla. 2017) (Lawson, J.,

concurring specially).


                                        -3-
QUINCE, J., dissenting.

      I cannot agree with the majority’s finding that the Hurst error was harmless

beyond a reasonable doubt. As I have stated in other cases, “[b]ecause Hurst

requires ‘a jury, not a judge, to find each fact necessary to impose a sentence of

death,’ the error cannot be harmless where such a factual determination was not

made.” Hall v. State, 212 So. 3d 1001, 1036-37 (Fla. 2017) (Quince, J., concurring

in part and dissenting in part) (citation omitted) (quoting Hurst v. Florida, 136 S.

Ct. 616, 619 (2016)); see also Truehill v. State, 211 So. 3d 930, 961 (Fla. 2017)

(Quince, J., concurring in part and dissenting in part). Accordingly, I dissent.

An Appeal from the Circuit Court in and for Martin County,
     Elizabeth Ann Metzger, Judge - Case No. 431997CF001672CFAXMX

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

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,

      for Appellee




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