Omar Blanco v. State of Florida , 249 So. 3d 536 ( 2018 )

Supreme Court of Florida
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No. SC17-330
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OMAR BLANCO,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[July 19, 2018]
PER CURIAM.
Omar Blanco, a prisoner under sentence of death, appeals the circuit court’s
orders summarily denying his fifth motion for postconviction relief, which was
filed under Florida Rules of Criminal Procedure 3.851 and 3.203. We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const.
In 1982, a jury convicted Blanco of first-degree murder and armed burglary.
We affirmed Blanco’s convictions and sentence of death on direct appeal. Blanco
v. State, 452 So. 2d 520 (Fla. 1984). We also upheld the denial of his initial
motion for postconviction relief and denied his petition for a writ of habeas corpus.
Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987). A federal court later vacated
the death sentence based on ineffective assistance of penalty phase counsel.
Blanco v. Dugger, 691 F. Supp. 308 (S.D. Fla. 1988), aff’d sub nom. Blanco v.
Singletary, 943 F.2d 1477 (11th Cir. 1991).1 In 1994, following a new penalty
phase on resentencing, the jury recommended a death penalty by a vote of ten to
two. We affirmed Blanco’s resentence of death. Blanco v. State, 706 So. 2d 7(Fla. 1997). We also upheld the denial of his fourth postconviction motion.
Blanco v. State, 963 So. 2d 173 (Fla. 2007).
In May 2015, Blanco filed his current fifth postconviction motion under
Florida Rules of Criminal Procedure 3.851 and 3.203. Within his motion, Blanco
sought relief based on Hall v. Florida, 134 S. Ct. 1986 (2014), and Atkins v.
Virginia, 536 U.S. 304 (2002). Blanco subsequently filed an amended
postconviction motion in which he sought additional relief based on Hurst v.
Florida, 136 S. Ct. 616 (2016). In January 2017, the circuit court issued an order
summarily denying Blanco’s intellectual disability claim as time-barred in light of
this Court’s decision in Rodriguez v. State, No. SC15-1278, 2016 WL 41947761. Blanco’s second postconviction motion was filed during the federal
habeas proceedings, but it was dismissed as moot when the federal court ordered
resentencing.
Blanco’s third postconviction motion was filed during the pendency of the
resentencing proceedings. We affirmed. Blanco v. State, 702 So. 2d 1250 (Fla.
1997).
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(Fla. Aug. 9, 2016) (unpublished order). This appeal followed.2 While Blanco’s
postconviction case was pending in this Court, the Court directed Blanco to show
cause why the circuit court’s May 2017 order—entered by the circuit court on
relinquishment—should not be affirmed in light of this Court’s decision in
Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513 (2017). This
Court also directed further briefing on the intellectual-disability-related issue.
We conclude that Blanco’s intellectual disability claim is foreclosed by the
reasoning of this Court’s decision in Rodriguez. In Rodriguez, this Court applied
the time-bar contained within rule 3.203 to a defendant who sought to raise an
intellectual disability claim under Atkins for the first time in light of Hall. We also
conclude that Blanco’s Hurst claim is foreclosed by this Court’s decision in
Hitchcock. In Hitchcock, this Court applied Asay to mean that Ring v. Arizona,
536 U.S. 584 (2002), is the cutoff for any and all Hurst-related claims.
Accordingly, we affirm the circuit court’s orders denying Blanco’s fifth motion for
postconviction relief.
Any rehearing motion containing reargument will be stricken.
2. While Blanco’s postconviction case was pending in this Court, the Court
temporarily relinquished jurisdiction for the circuit court to enter a written order on
the Hurst-related claim contained within Blanco’s amended postconviction motion.
In May 2017, the circuit court issued an order on relinquishment summarily
denying Blanco’s Hurst claim in light of this Court’s decision in Asay v. State, 210
So. 3d 1 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017).
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It is so ordered.
LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
CANADY, C.J., concurs in result.
PARIENTE, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
I agree with the per curiam opinion’s result because this Court’s opinions
regarding Hurst retroactivity are now final. 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). However, I continue to adhere to
the views expressed in my dissenting opinion in Hitchcock that Hurst should apply
retroactively to cases like Blanco’s. Hitchcock, 216 So. 3d at 220-23 (Pariente, J.,
dissenting). Applying Hurst to Blanco’s sentence of death, I would grant a new
penalty phase based on the jury’s nonunanimous recommendation for death by a
vote of ten to two. Majority op. at 2.
An Appeal from the Circuit Court in and for Broward County,
Raag Singhal, Judge - Case No. 061982CF000453A88810
Ira W. Still, III, Coral Springs, 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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