# Supreme Court of Florida

____________ No. SC18

- 458

____________ BILLY LEON KEARSE, Appellant,

vs. STATE OF FLORIDA, Appellee. August 30, 2018
PER CURIAM. We have for review Billy Leon Kearse’s appeal of the circuit court’s order denying Kearse’s motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. Kearse’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). Kearse responded to this Court’s ord er to show cause arguing why
Hitchcock v. State , 226 So. 3d 216 (Fla.), cert. denied , 138 S. Ct. 513 (2017), should not be dispositive in this case.- 2

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After reviewing Kearse’s response to the order to show cause, as well as the State’s arguments in reply, we conclude that Kearse is not entitled to relief. Kearse was sentenced to death following a jury’s unanimous recommendation for death

. Kearse v. State , 770 So. 2d 1119, 1123 (Fla. 2000 ). His sentence of death became
final in 2001

. Kearse v. Florida , 532 U.S. 945 ( 2001 ). Thus, Hurst does not apply retroactively to Kearse’s sentence of death. See Hitchcock , 226 So. 3d at 217. Accordingly, we affirm the denial of Kearse’s motion. The Court having carefully considered all arguments raised by Kearse , we

ca ution that any rehearing motion containing reargument will be stricken. It is so
ordered. LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. PARIENTE, J., concurs in result with an opinion. CANADY, C.J., concurs 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.), 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 that Hurst should apply retroactively to cases like Kearse’s

. Id. at 220

- 23 (Pariente, J., dissenting). Of course, if Hurst 1 applied to Kearse’s case, he

1

. Hurst v. State ( Hurst ), 202 So. 3d 40 (Fla. 2016), cert. denied , 137 S. Ct. 2161 (2017).- 3

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would likely not be entitled to relief based on the jury’s unanimous
recommendation for de ath, coupled with the absence of any stricken aggravating
factors. Kearse v. State , 770 So. 2d 1119, 1123 (Fla. 2000); see Davis v. State , 207 So. 3d 142, 174

- 75 (Fla. 2016). Notwithstanding, I emphasize Justice Anstead’s dissenting opinion on direct
ap peal that Justice Shaw and I joined, which argued that “this case is clearly not one of the most aggravated, least mitigated of first

- degree murders.” Kearse , 770 So. 2d at 1136 (Anstead, J., dissenting). Regardless of whether Hurst applies retroactively to Kearse’s case, Justice Anstead’s conclusion “that this is clearly not a death case” is significant. Id. at 1138. An Appeal from the Circuit Court in and for St. Lucie County, Dan Lewis Vaughn, Judge

- Case No. 561991CF000136AXXXXX Neal Andre Dupree, Capital Collateral Regional Counsel, and Paul Kalil, Assistant Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Atto rney General, West Palm Beach, Florida, for Appellee