Supreme Court of Florida

____________

No. SC18-860

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KEVIN DON FOSTER,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

December 6, 2018

PER CURIAM.

Kevin Don Foster, a prisoner under sentence of death, appeals a circuit court

order denying his successive motion for postconviction relief, which was filed 

under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, 

§ 3(b)(1), Fla. Const. For the reasons explained below, we affirm the denial of 

relief.

FACTS AND PROCEDURAL BACKGROUND

Foster, leader of the “Lords of Chaos,” was convicted in Lee County of firstdegree murder and sentenced to death for the 1996 murder of Riverdale High 

School band director Mark Schwebes. See Foster v. State, 778 So. 2d 906, 909 
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(Fla. 2000). The facts, which are fully set forth in the opinion on direct appeal, are 

summarized as follows.

In April 1996, Foster and two other teenagers formed the “Lords of Chaos,” 

a gang which was intended “to create disorder in the Fort Myers community 

through a host of criminal acts.” Id. at 909. The membership grew to include 

others, including several who were involved in the murder of Schwebes or the 

events immediately preceding his death. Id.

On April 30, 1996, the group decided to vandalize Riverdale High and set 

the school’s auditorium on fire. Id. at 910. Foster and two others (Christopher 

Black and Thomas Torrone) entered the school and stole various items, including a 

fire extinguisher that they intended to use to break the auditorium windows. Id. 

Several others stood watch outside. Id.

However, the group was interrupted by Schwebes, who came to the school 

auditorium after leaving a nearby school function. Id. Foster ran when he saw 

Schwebes, leaving Black and Torrone behind. Id. Schwebes confronted Black and 

Torrone, retrieved the stolen items, and told them that he was going to report them 

to the campus police the following day. Id.

Black and Torrone later rejoined Foster and the others and described their 

encounter with Schwebes. Id. Convinced that Schwebes would follow through on 

his promise to report them, Black stated that Schwebes “has got to die.” Id. Foster 
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agreed, offering to kill Schwebes if Black could not bring himself to do it. Id. 

They discussed how to carry out the murder and ultimately agreed to go to 

Schwebes’ house and kill him. Id. After calling 411 to get Schwebes’ address and 

obtaining a map to find the location of the house, Foster and others traveled there, 

where Foster, armed with a shotgun, shot Schwebes in the face and pelvis. Id. The 

medical examiner testified that the shot to the face would have killed Schwebes 

instantly. Id.

The jury recommended death in a nine-to-three vote. Id. at 912. In 

imposing a sentence of death, the trial court found two aggravating factors: (1) the 

murder was committed for the purpose of avoiding or preventing a lawful arrest, 

and (2) the murder was cold, calculated, and premeditated without any pretense of 

moral or legal justification (CCP). Id. The trial court considered and rejected as a 

statutory mitigating circumstance that Foster was eighteen years old at the time of 

the murder, and it also did not find the existence of any of the nonstatutory 

mitigation presented by the defense. Id.

Foster appealed his conviction and sentence to this Court, both of which 

were affirmed and became final upon issuance of the mandate in 2001. Id. at 923. 

He timely filed his initial motion for postconviction relief in 2001, and he filed an

amended motion in 2010. Following the trial court’s summary denial of relief, he 
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appealed to this Court, which affirmed in 2013. See Foster v. State, 132 So. 3d 40, 

76 (Fla. 2013).

In 2016, Foster filed a successive motion for postconviction relief in light of 

the United States Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616

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

So. 3d 40 (Fla. 2016) (Hurst). In Hurst v. Florida, the Supreme Court held that 

Florida’s death penalty statute violated the Sixth Amendment to the United States 

Constitution to the extent that: (1) it required the judge, not the jury, to make the 

factual findings necessary to increase a defendant’s maximum punishment for firstdegree murder from life imprisonment to a death sentence, and (2) it deemed the 

jury’s sentencing recommendation “advisory.” 136 S. Ct. at 622. On remand, this 

Court held that “the Supreme Court’s decision in Hurst v. Florida requires that all 

the critical findings necessary before the trial court may consider imposing a 

sentence of death must be found unanimously by the jury.” 202 So. 3d at 44.

This Court further held that the Sixth and Eighth Amendments to the United 

States Constitution require that if the death penalty is to be imposed, the jury’s 

recommendation of death must be unanimous. Id. However, Hurst did not resolve 

whether the decision would be applied retroactively. That issue was later decided 

in Asay v. State, 210 So. 3d 1 (Fla. 2016). In Asay, this Court held that Hurst did 

not apply retroactively and that relief was not available to defendants whose death
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sentences became final before the United States Supreme Court issued its opinion

in Ring v. Arizona, 536 U.S. 584 (2002).

Because Foster’s conviction and sentence became final before the United 

States Supreme Court decided Ring, the trial court denied relief, and Foster 

appealed to this Court. See Foster v. State, 235 So. 3d 294, 295 (Fla. 2018). 

However, we stayed Foster’s appeal pending our decision in Hitchcock v. State, 

226 So. 3d 216 (Fla. 2018). We reiterated in Hitchcock that Hurst is not to be 

retroactively applied to cases where the defendant’s death sentence became final 

before Ring was decided. Id. at 217. Subsequently, this Court issued an order 

requiring Foster to show cause why his appeal should not be governed by 

Hitchcock. Upon review, this Court held that Hitchcock was dispositive and 

affirmed the denial of relief. 235 So. 3d at 295.

Thereafter, Foster filed another successive motion for postconviction relief.

In that motion, he raised two issues: (1) the jury did not find all of the elements 

required to convict him of what he terms “capital first-degree murder,” and

(2) Foster’s age of eighteen years old at the time of the murder should preclude the 

imposition of the death penalty. The trial court summarily denied relief, and this 

appeal followed.
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ANALYSIS

First-Degree Murder Claim

As we have previously held, because Foster’s death sentence became final

before the United States Supreme Court decided Ring, it is subject to the 

retroactivity holdings in Asay and Hitchcock. However, we write to address 

Foster’s argument regarding the elements of “capital first-degree murder,” and to 

explain why this argument has no merit.

Under Florida’s revised capital sentencing statute, and consistent with Hurst, 

in order for a defendant to be sentenced to death, the jury must: (1) unanimously 

find at least one aggravating factor beyond a reasonable doubt; (2) identify all 

aggravating factors that it unanimously finds beyond a reasonable doubt;

(3) unanimously determine whether sufficient aggravating factors exist to impose a 

sentence of death; (4) determine whether any mitigating circumstances exist and 

unanimously determine whether the aggravating factors outweigh those mitigating 

circumstances; and (5) unanimously determine that the defendant should be 

sentenced to death. See Hurst, 202 So. 3d at 57; § 921.141(2), Fla. Stat. (2018); 

ch. 2017-1, Laws of Fla. If the jury makes these findings, it only does so after a 

jury has unanimously convicted the defendant of the capital crime of first-degree 

murder that is delineated in section 782.04, Florida Statutes (2018).
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Hurst reflected a change in this state’s decisional law and, in Asay, we 

concluded “that Hurst should not be applied retroactively to [a] case, in which the 

death sentence became final before the issuance of Ring.” 210 So. 3d at 22. 

However, Foster, whose sentence became final in 2001, asserts that a defendant 

who is convicted of first-degree murder has a substantive right to a life sentence 

unless a unanimous jury finds beyond a reasonable doubt all of the elements of 

“capital first-degree murder”—which Foster defines as “murder plus the . . . 

elements the jury is required to find unanimously under revised § 921.141, Fla. 

Stat.” He argues that a conviction for “capital first-degree murder” requires not 

only the statutorily defined elements of first-degree murder, but the specific 

unanimous penalty phase findings set forth in Hurst; section 921.141, Florida 

Statutes, which was revised to incorporate the Hurst requirements; and chapter 

2017-1, Laws of Florida, which amended section 921.141 to require that a jury’s 

recommendation of death be unanimous. Foster asserts that he was not convicted 

of all of the elements of “capital first-degree murder” and that his due process and 

Eighth Amendment rights were violated as a result. We first turn to Foster’s due 

process argument, and then we turn to his Eighth Amendment argument.

Due Process

Long-recognized “[a]mong the attributes of due process is the requirement 

that the state must prove an accused guilty beyond a reasonable doubt.” State v. 
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Cohen, 568 So. 2d 49, 51 (Fla. 1990). Proof beyond a reasonable doubt extends to 

every element of the crime, “every fact necessary to constitute the crime with 

which [the accused] is charged.” In re Winship, 397 U.S. 358, 364 (1970).

Before we proceed, we note that under Florida law, there is no crime 

expressly termed “capital first-degree murder.” Florida law prohibits first-degree 

murder, which is, by definition, a capital crime. This distinction, while subtle, is 

essential, because contrary to Foster’s argument, it is not the Hurst findings that 

establish first-degree murder as a capital crime for which the death penalty may be 

imposed. Rather, in Florida, first-degree murder is, by its very definition, a capital 

felony.

Florida’s substantive statute on murder, codified at section 782.04, Florida 

Statutes, provides as follows:

782.04 Murder.—

(1)(a) The unlawful killing of a human being:

1. When perpetrated from a premeditated design to effect the 

death of the person killed or any human being;

2. When committed by a person engaged in the perpetration 

of, or in the attempt to perpetrate, any: [enumerated felonies a.-s.] or

3. Which resulted from the unlawful distribution by a person 

18 years of age or older of any of the following substances, or mixture 

containing any of the following substances, when such substance or 

mixture is proven to be the proximate cause of the death of the user: 

[enumerated controlled substances a.-i.]

is murder in the first degree and constitutes a capital felony, 

punishable as provided in s. 775.082.
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(Emphasis added.)

Thus, the crime of first-degree murder, of which Foster was convicted, is 

defined in section 782.04 as a capital felony—this is regardless of whether the 

death penalty is ultimately imposed. Moreover, section 921.141(1), “Separate 

Proceedings on Issue of Penalty,” begins as follows: “Upon conviction or 

adjudication of guilt of a defendant of a capital felony, the court shall conduct a 

separate proceeding to determine whether the defendant should be sentenced to 

death or life imprisonment as authorized by s. 775.082.” (Emphasis added.) 

Further, Florida Rule of Criminal Procedure 3.112(b) defines a capital trial as “any 

first-degree murder case in which the State has not formally waived the death 

penalty on the record.”

These statutes and the rule of procedure illustrate that the Hurst penalty 

phase findings are not elements of the capital felony of first-degree murder. 

Rather, they are findings required of a jury: (1) before the court can impose the 

death penalty for first-degree murder, and (2) only after a conviction or 

adjudication of guilt for first-degree murder has occurred. Thus, Foster’s jury did 

find all of the elements necessary to convict him of the capital felony of firstdegree murder—during the guilt phase.

In sum, a conviction for first-degree murder, a capital felony, solely consists 

of the jury having unanimously found the elements set forth in the substantive first-
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degree murder statute and the relevant jury instruction. The conviction for firstdegree murder must occur before and independently of the penalty-phase findings 

required by Hurst and its related legislative enactments. The Florida Statutes 

clearly establish the elements of first-degree murder required for a conviction, and 

upon conviction, the required findings in order to sentence a defendant to the death 

penalty. There is no, as Foster asserts, greater offense of “capital first-degree 

murder.” Foster’s guilt-phase jury considered all of the elements necessary to 

convict him of first-degree murder, a capital felony. Thus, his due process 

argument fails.

Eighth Amendment

We also reject Foster’s argument that the failure to convict him of every 

element of “capital first-degree murder”—as he defines it—violates the Eighth 

Amendment. Moreover, as to the argument that his nonunanimous death sentence 

violates the Eighth Amendment, an identical claim was raised and rejected in 

Hitchcock. 226 So. 3d at 217 n.2. Foster is not entitled to relief.

Roper Claim

Foster, who was eighteen years old at the time of the murder, argues that the 

trial court erred when it summarily denied his claim that his death sentence is 

unconstitutional. He encourages this Court to adopt a more expansive view than 

that in Roper v. Simmons, 543 U.S. 551, 577 (2005) (holding unconstitutional the 
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imposition of the death penalty upon individuals who were under the age of 

eighteen at the time the murder was committed). In Roper, the Court said:

Drawing the line at 18 years of age is subject, of course, to the 

objections always raised against categorical rules. The qualities that 

distinguish juveniles from adults do not disappear when an individual 

turns 18. By the same token, some under 18 have already attained a 

level of maturity some adults will never reach. For the reasons we 

have discussed, however, a line must be drawn. . . . The age of 18 is 

the point where society draws the line for many purposes between 

childhood and adulthood. It is, we conclude, the age at which the line 

for death eligibility ought to rest.

Id. at 574. Foster argues that newly discovered evidence reveals an emerging 

consensus in the scientific community that young adults are developmentally akin 

to juveniles, and he asks this Court to extend the protection in Roper. For the 

reasons explained below, Foster is not entitled to relief.

In order to obtain relief on the basis of newly discovered evidence, “the 

evidence must not have been known by the trial court, the party, or counsel at the 

time of trial, and it must appear that the defendant or defense counsel could not 

have known of it by the use of diligence.” Marek v. State, 14 So. 3d 985, 990 (Fla. 

2009). Additionally, the newly discovered evidence must be of such nature that it 

would probably produce an acquittal on retrial. Id.

As newly discovered evidence, Foster cites articles from 2016, 2017, and 

earlier that focused on young adults ages eighteen to twenty-one and concluded 

that their cognitive development renders them more likely to engage in impulsive 
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and risky behavior such as criminal activity. He also highlights objective indicia 

of consensus, including a national trend against sentencing young adult offenders 

to death and against carrying out the execution of those already sentenced. Foster 

suggests that recent actions by state legislatures support the prohibition of death 

sentences for defendants who were age twenty-one and under at the time of their 

crimes, but he admits that no state has passed a law specifically geared toward that 

age group. Foster also cites a 2018 American Bar Association resolution which 

recommended that the death penalty be prohibited as to defendants twenty-one 

years of age and younger at the time of their crimes. In sum, Foster argues that 

evolving standards of decency render his death sentence invalid under the Eighth 

Amendment. As he acknowledges, however, this Court has rejected similar claims 

of newly discovered evidence—most recently in Branch v. State, 236 So. 3d 981 

(Fla. 2018).

Eric Scott Branch, while under a death warrant, argued that his death 

sentence was unconstitutional because he was twenty-one years old at the time of 

the murder. Id. at 985. In a manner very similar to Foster, and citing some of the 

same research, Branch argued that newly discovered evidence demonstrates that 

young people in their late teens and early twenties lack the cognitive development

that is necessary to be eligible for the death penalty. Id. This Court rejected 

Branch’s argument on procedural grounds and also rejected the claim of newly 
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discovered evidence, saying: “[W]e have rejected similar claims on the basis that 

scientific research with respect to brain development does not qualify as newly 

discovered evidence.” Id. at 986. Importantly, this Court also reaffirmed its 

adherence to the United States Supreme Court’s holding in Roper. Id. at 987. This 

Court observed:

Finally, the United States Supreme Court has continued to 

identify eighteen as the critical age for purposes of Eighth 

Amendment jurisprudence. See Miller v. Alabama, 567 U.S. 460, 

465, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) (prohibiting 

mandatory sentences of life without parole for homicide offenders 

who committed their crimes before the age of eighteen); Graham v. 

Florida, 560 U.S. 48, 74-75, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010) (prohibiting sentences of life without parole for nonhomicide 

offenders who committed their crimes before the age of eighteen). 

Therefore, unless the United States Supreme Court determines that the 

age of ineligibility for the death penalty should be extended, we will 

continue to adhere to Roper.

Branch, 236 So. 3d at 987.

Foster attempts to distinguish his case from Branch because Branch was 

twenty-one years old while Foster was eighteen years old at the time of their 

respective crimes. In light of Roper, this distinction has no merit. As we did in 

Branch, we reaffirm our adherence to Roper. Foster is not entitled to relief.

CONCLUSION

For these reasons, we affirm the circuit court’s order denying Foster’s 

successive motion for postconviction relief.

It is so ordered.
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PARIENTE, LEWIS, QUINCE, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., and POLSTON, J., concur in result.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED 

WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR 

REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS 

AFTER THE FILING OF THE MOTION FOR 

REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD 

EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF 

FILED, DETERMINED.

An Appeal from the Circuit Court in and for Lee County, 

Joseph Fuller, Jr., Judge - Case No. 361996CF001362000BCH

Neal Dupree, Capital Collateral Regional Counsel, and Scott Gavin, Assistant 

Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, 

for Appellant 

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, 

Senior Assistant Attorney General, Tampa, Florida, 

for Appellee