# Supreme Court of Florida

____________

No. SC17

- 499

____________
PRESSLEY BERNARD ALSTON,

Appellant,

vs.

STATE OF FLORIDA, Appellee.

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No. SC17

- 983

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PRESSLEY BERNARD ALSTON,

Petitioner,

vs.

JULIE L. JONES, etc., Respondent.

[May 17, 2018]

PER CURIAM.

We have for review Pressley Bernard Alston’s appeal of the circuit court’s

order denying Alston’s motion filed pursuant to Florida Rule of Criminal

Pr ocedure 3.851 and Alston’s petition for a writ of habeas corpus

. We have- 2

-

jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const. We withdraw the opinion issued

on January 22, 2018, and substitute this opinion in its place.

Alston seeks 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 , 202 So. 3d 40 (Fla. 2016), cert. denied , 137 S. Ct. 2161 (2017). This Court

stayed Alston’s appeal and consideration of h is habeas petition pending the

disposition of Hitchcock v. State , 226 So. 3d 216 (Fla. ), cert. denied , 138 S. Ct.

513 (2017). After this Court decided Hitchcock

, Alston responded to this Court’s

order to show cause arguing why Hitchcock should not be disp ositive in both

cases . Then, after this Court decided State v. Silvia

, 239 So. 3d 349 (Fla. 2018),

Alston responded to this Court’s order to show cause why Silvia should not be

dispositive in both cases

.
After reviewing Alston’s responses to the orders to show cause, as well as

the State’s arguments in reply, we conclude that Alston’s valid waiver of

postconviction proceedings and counsel in 20 03 preclude s him from claiming a

right to relief under Hurst

. See Silvia

, 239 So. 3d 3 49 ; Alston v. State , 894 So. 2d

46 (Fla. 2004) . Moreover, Alston’s sentence of death became final in 1999.

Alston v. State , 723 So. 2d 148 (Fla. 1998) . Thus, even if Alston’s postconviction

waiver did not preclude him from raising a Hurst claim, Hurst w ould not apply

retroactively to Alston’s sentence of death. See Hitchcock , 226 So. 3d at 217.- 3

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Accordingly, we affirm the circuit court’s denial of relief and deny Alston’s habeas

petition

.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, a nd LAWSON, JJ.,

concur. CANADY, J., concurs in result with an opinion. LEWIS, J., dissents.

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

CANADY, J., concurring in result.

I would base the denial of relief to Alston on my view that Hurst should not

be given retroactive application. See Mosley v. State

, 209 So. 3d 1248, 1285

- 91

(Fla. 2016) (Canady, J., concurring in part and dissenting in part).

An Appeal from the Circuit Court in and for Duval County, Russell Healey, Judge

- Case No. 161995CF005326AXXXMA And an Original Proceeding

– Habeas Corpus

Robert A. Norgard of Norgard, Norgard, & Chastang, Bartow, Florida, and Billy H. Nolas, Chief, Capital Habeas Unit, Northern Di strict of Florida, Tallahassee, Florida,

for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney General, Tallahassee, Florida,

for Appellee/Responden t