Charles Kenneth Foster v. State of Florida , 235 So. 3d 294 ( 2018 )

Supreme Court of Florida
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No. SC17-1383
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CHARLES KENNETH FOSTER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 29, 2018]
PER CURIAM.
We have for review Charles Kenneth Foster’s appeal of the circuit court’s
order denying Foster’s motion filed pursuant to Florida Rule of Criminal Procedure
3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Foster’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 Foster’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, Foster responded to this Court’s order to show cause
arguing why Hitchcock should not be dispositive in this case.
After reviewing Foster’s response to the order to show cause, as well as the
State’s arguments in reply, we conclude that Foster is not entitled to relief. Foster
was sentenced to death following a jury’s recommendation for death by a vote of
eight to four. Foster v. State, 654 So. 2d 112, 113 (Fla. 1995). Foster’s sentence
of death became final in 1995. Foster v. Florida, 516 U.S. 920 (1995). Thus,
Hurst does not apply retroactively to Foster’s sentence of death. See Hitchcock,
226 So. 3d at 217. Accordingly, we affirm the denial of Foster’s motion.
The Court having carefully considered all arguments raised by Foster, 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 Bay County,
Harry Hentz McClellan, Judge - Case No. 031975CF000486XXAXMX
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James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Mark S. Gruber,
Julie A. Morley, and Margaret S. Russell, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida; and Billy H. Nolas, Chief,
Capital Habeas Unit, Office of the Federal Public Defender, Northern District of
Florida, Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee
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