Supreme Court of Florida

____________

No. SC23-190

____________

DONALD DAVID DILLBECK,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

____________

No. SC23-220

____________

DONALD DAVID DILLBECK,

Petitioner,

vs.

RICKY D. DIXON, etc.,

Respondent.

February 16, 2023

PER CURIAM.

Donald David Dillbeck, a prisoner under sentence of death 

and an active death warrant, appeals the circuit court’s order 

summarily denying his fourth successive postconviction motion
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filed under Florida Rule of Criminal Procedure 3.851 and petitions 

this Court for a writ of habeas corpus. We affirm the summary 

denial of Dillbeck’s motion and deny his habeas petition. We also 

deny the two motions for stay of execution and two motions for oral 

argument that Dillbeck has filed in this Court.1

I. BACKGROUND

Dillbeck was 15 years old when he committed his first murder 

by shooting Deputy Dwight Lynn Hall to death in 1979. He entered 

a negotiated guilty plea of first-degree premeditated murder and 

was sentenced to life in prison with the possibility of parole after 25 

years. Eleven years later, Dillbeck murdered again:

While serving his sentence [relating to Deputy Hall], he 

walked away from a public function he and other inmates 

were catering in Quincy, Florida. He walked to 

Tallahassee, bought a paring knife, and attempted to 

hijack a car and driver from a shopping mall parking lot 

on June 24, 1990. Faye Vann, who was seated in the 

car, resisted and Dillbeck stabbed her several times, 

killing her. Dillbeck attempted to flee in the car, crashed, 

and was arrested shortly thereafter and charged with 

first-degree murder, armed robbery, and armed burglary. 

He was convicted on all counts and sentenced to 

consecutive life terms on the robbery and burglary 

charges, and, consistent with the jury’s eight-to-four

recommendation, death on the murder charge.

1. We have jurisdiction, see art. V, § 3(b)(1), (9), Fla. Const.
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Dillbeck v. State, 643 So. 2d 1027, 1028 (Fla. 1994).

In sentencing Dillbeck to death for Vann’s murder, the trial 

court found five aggravating circumstances: “[1] that Dillbeck was 

under sentence of imprisonment and [2] had previously been 

convicted of another capital felony [Deputy Hall’s 1979 murder], 

and [3] that the murder was committed during the course of a 

robbery and burglary, [4] was committed to avoid arrest or effect 

escape, and [5] was especially heinous, atrocious, or cruel.” Id. at 

1028 n.1 (citing § 921.141, Fla. Stat. (1989)). As to mitigation, 

“[t]he trial court found one statutory mitigating circumstance, i.e., 

that Dillbeck was substantially impaired, see § 921.141(6)(f), Fla. 

Stat. (1989), and numerous nonstatutory circumstances: abused 

childhood, fetal alcohol effect, mental illness, the mental illness is 

treatable, imprisonment at an early age in a violent prison, goodbehavior, a loving family, and remorse.” Dillbeck, 643 So. 2d at 

1028 n.2.

On direct appeal, we affirmed Dillbeck’s convictions and 

sentences, id. at 1031, which became final when the United States 
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Supreme Court denied certiorari review in 1995. See Dillbeck v. 

Florida, 514 U.S. 1022 (1995).

In the decades since, Dillbeck has unsuccessfully challenged 

his convictions and sentences many times. See Dillbeck v. State, 

882 So. 2d 969, 977 (Fla. 2004) (denying Dillbeck’s habeas petition 

and affirming the denial of one of Dillbeck’s initial postconviction 

claims but remanding for the circuit court to make the required 

findings of fact and conclusions of law supporting denial of the 

remaining claims); Dillbeck v. State, 964 So. 2d 95, 97 (Fla. 2007) 

(affirming the denial of Dillbeck’s remaining initial postconviction 

claims after remand); Dillbeck v. State, 168 So. 3d 224, *1 (Fla. 

2015) (table) (affirming the denial of Dillbeck’s first successive 

postconviction motion); Dillbeck v. State, 234 So. 3d 558, 559 (Fla.) 

(affirming the denial of Dillbeck’s second successive postconviction 

motion), cert. denied, 139 S. Ct. 162 (2018); Dillbeck v. State, 304 

So. 3d 286, 288 (Fla. 2020) (affirming the dismissal of Dillbeck’s 

third successive postconviction motion), cert. denied, 141 S. Ct. 

2733 (2021).

Governor Ron DeSantis signed Dillbeck’s death warrant on 

January 23, 2023. Dillbeck then filed his fourth successive 
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postconviction motion under rule 3.851. In his motion, Dillbeck 

argued that he is exempt from execution because he has a mental 

condition that is equivalent to intellectual disability, that newly 

discovered evidence related to the prior violent felony aggravator 

requires vacating his death sentence or granting a stay of execution, 

and that the Eighth Amendment prohibits his execution after 30 

years on death row. Dillbeck conceded below that the claim based 

on his length of time on death row presents a purely legal issue but 

sought an evidentiary hearing on his claims alleging an exemption 

from execution and newly discovered evidence. The circuit court 

summarily denied all three claims.2

Dillbeck now appeals, petitions this Court for a writ of habeas 

corpus, moves for a stay of execution, and requests oral argument.

II. ANALYSIS OF APPEAL

In appealing the circuit court’s summary denial of his fourth 

successive postconviction motion, Dillbeck raises three issues: (1) 

the circuit court erred in summarily denying his claim that he is 

2. Dillbeck also challenged the constitutionality of his 

clemency proceedings below, but he does not appeal the circuit 

court’s summary denial of that claim.
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exempt from execution because he has a mental condition that is 

equivalent to intellectual disability; (2) the circuit court erred in 

summarily denying his claim that newly discovered evidence related 

to the prior violent felony aggravator requires vacating his death 

sentence or, at minimum, staying his execution to allow him to

challenge the 1979 conviction that supports the prior violent felony 

aggravator; and (3) the Eighth Amendment precludes executing him

after 30 years on death row. Because the circuit court denied these 

claims without an evidentiary hearing, our review is de novo. See 

Bowles v. State, 276 So. 3d 791, 794 (Fla. 2019) (“A postconviction 

court’s decision regarding whether to grant an evidentiary hearing 

is a pure question of law and is reviewed de novo.”); see also Fla. R. 

Crim. P. 3.851(f)(5)(B) (providing for the summary denial of a 

successive postconviction motion “[i]f the motion, files, and records 

in the case conclusively show that the movant is entitled to no 

relief”). As explained below, we affirm the circuit court’s summary 

denial of all three claims.

(1) Exemption from Execution

Dillbeck first argues that the circuit court erred in summarily 

denying his claim that he is exempt from execution because he has 
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a mental condition that is equivalent to intellectual disability. 

Dillbeck has an average IQ of 98 to 100, but he has been diagnosed 

with a fetal alcohol spectrum disorder called neurodevelopmental 

disorder associated with prenatal alcohol exposure (ND-PAE). He 

relies on an alleged newly emerged medical and scientific consensus 

that ND-PAE is equivalent to intellectual disability to argue that the 

Eighth and Fourteenth Amendments require exempting him from 

execution. 

The circuit court properly summarily denied Dillbeck’s 

exemption claim. As a newly discovered evidence claim of 

intellectual disability, it is untimely and procedurally barred; if it is 

not a newly discovered evidence claim (and Dillbeck says that it is 

not), then it is not cognizable in a successive postconviction motion. 

Moreover, the claim is meritless. 

This Court has explained that an intellectual disability claim 

that is based on newly discovered evidence must be filed “within 

one year of the date upon which the claim became discoverable 

through due diligence.” Pittman v. State, 337 So. 3d 776, 777 (Fla. 

2022); see also Bowles, 276 So. 3d at 794 (affirming summary 

denial of untimely intellectual disability claim). 
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Dillbeck’s claim depends on his ND-PAE diagnosis. But three 

years ago, in 2020, we affirmed the dismissal of Dillbeck’s third 

successive postconviction motion as untimely because we held that

Dillbeck and his counsel had failed to diligently pursue a diagnosis 

of ND-PAE:

Dillbeck and his counsel knew that Dillbeck had brain 

damage related to fetal alcohol exposure even before he 

was sentenced in 1991. Thus, . . . a diagnosis of ND-PAE 

and qEEG [quantitative electroencephalogram] results . . 

. could have been discovered by the exercise of due 

diligence as early as 2013, when ND-PAE became a 

diagnosable condition. Dillbeck and his counsel failed to 

exercise diligence by waiting until 2018 to pursue 

evaluation, testing, and a diagnosis of ND-PAE.

Dillbeck, 304 So. 3d at 288. This claim is therefore barred.

Attempting to avoid the procedural bar of our 2020 decision

and establish due diligence in bringing his exemption claim, 

Dillbeck argues that his exemption claim is not based on the same 

evidence from his third successive postconviction proceeding, but 

on a “sociolegal tipping point” that ND-PAE is the equivalent of 

intellectual disability that is happening now, in 2023. Even if our 

prior ruling did not procedurally bar him, Dillbeck’s claim still 

comes too late to be newly discovered evidence. 
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Dillbeck cites a 2021 article for the proposition that the 

medical and scientific community view ND-PAE as equivalent to 

intellectual disability, and that article in turn relies on older 

sources. “[N]ew opinions or research studies based on a 

compilation or analysis of previously existing data and scientific 

information” are not generally considered newly discovered 

evidence. Henry v. State, 125 So. 3d 745, 750 (Fla. 2013). But 

even if they could be, the record conclusively refutes that Dillbeck 

diligently pursued an exemption claim based on them. The alleged

new scientific and medical consensus that undergirds Dillbeck’s 

claim has existed since at least 2021.

Another timing problem for Dillbeck is that if his exemption 

claim is not a newly discovered evidence claim, which he repeatedly 

says it is not, then the claim is not cognizable at all in a successive 

postconviction motion. “Rule 3.851 requires in pertinent part that 

motions for postconviction relief must be filed within one year from 

when the conviction and sentence become final unless the claim is 

based on newly discovered evidence or a newly recognized 

fundamental constitutional right that has been held to apply 
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retroactively.” Carroll v. State, 114 So. 3d 883, 886 (Fla. 2013) 

(citing Fla. R. Crim. P. 3.851(d)(1)(A)-(B); 3.851(d)(2)(A)-(B)). 

In Carroll, a capital defendant under an active death warrant 

argued that mental illness barred his execution, specifically that 

“the principles set forth in [Atkins and Roper3] should be extended 

to the class of persons such as himself who suffer from mental 

illness, based on the precept that such persons are less morally 

culpable and that, under the ‘evolving standards of decency that 

mark the progress of a maturing society,’ their mental illnesses 

should bar their executions.” 114 So. 3d at 886 (citation omitted). 

In explaining why Carroll’s claim was untimely and therefore 

unauthorized in a rule 3.851 successive postconviction motion, this 

Court wrote:

Carroll’s claim . . . is not a claim based on a newly 

recognized, retroactive fundamental constitutional right 

that may be asserted beyond the time limits established 

in the rule. What Carroll is seeking is the recognition of 

a new fundamental constitutional right, which is not 

properly pled under rule 3.851(d)(2)(B).

Id. 

3. Atkins v. Virginia, 536 U.S. 304 (2002); Roper v. Simmons, 

543 U.S. 551 (2005).
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Likewise, if Dillbeck’s claim is not a newly discovered evidence 

claim subject to the time and due diligence limitations of rule 

3.851(d)(2)(A), then it is not cognizable in a rule 3.851 successive 

postconviction motion. Carroll flatly refutes Dillbeck’s contention 

that no time limits apply to categorical exemption claims based on

conditions alleged to have intellectual disability equivalence.

The time and procedural bars discussed above are fatal to 

Dillbeck’s exemption claim, but even if they were not, the claim is 

also meritless. We have long held that the categorical bar of Atkins

that shields the intellectually disabled from execution does not

apply to individuals with other forms of mental illness or brain 

damage. See Gordon v. State, 350 So. 3d 25, 37 (Fla. 2022) (“[F]or 

the purposes of the Eighth Amendment, the existence of a 

traumatic brain injury does not reduce an individual’s culpability to 

the extent they become immune from capital punishment.”). The 

result is the same even where, as here, the defendant argues that 

“his mental illness and neurological impairments . . . cause him to 

experience the same deficits in reasoning, understanding and 

processing information, learning from experience, exercising good 

judgment, and controlling impulses as those experienced” by the 
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intellectually disabled. Johnston v. State, 27 So. 3d 11, 26 (Fla. 

2010); see also Carroll, 114 So. 3d at 886.

Because Dillbeck’s exemption claim is time barred, 

procedurally barred, and without merit, we affirm the circuit court’s 

summary denial.

(2) Newly Discovered Evidence

Next, Dillbeck argues that the circuit court erred in summarily 

denying his claim that newly discovered evidence related to the 

prior violent felony aggravator requires vacating his death sentence 

or, at minimum, staying his execution to allow him to challenge the 

1979 conviction that supports the prior violent felony aggravator. 

We disagree and affirm the summary denial of this claim.

To obtain relief where alleged newly discovered evidence 

relates to the penalty phase, “a defendant must establish: (1) that 

the newly discovered evidence was unknown by the trial court, by 

the party, or by counsel at the time of trial and it could not have 

been discovered through due diligence, and (2) that the evidence is 

of such a nature that it would probably . . . yield a less severe 

sentence on retrial.” Dailey v. State, 329 So. 3d 1280, 1285 (Fla. 

2021).
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After describing the alleged new evidence, we explain why 

Dillbeck’s newly discovered evidence claim is untimely and why we 

agree with the circuit court’s alternative ruling that even if the claim 

is timely, the alleged new evidence is not of such a nature that it 

would probably yield a less severe sentence on retrial. Last, we 

explain why Dillbeck is not entitled to a stay of execution to 

challenge his 1979 conviction.

The Alleged New Evidence

After the Governor signed Dillbeck’s death warrant, Dillbeck’s

legal team obtained statements from five people who witnessed his

“bizarre” behavior surrounding Deputy Hall’s 1979 shooting. Of the 

five, three gave prior statements to law enforcement in 1979; a 

fourth is married to one of the people who gave a statement in 

1979. The fifth witness saw Dillbeck being arrested in 1979 after 

the shooting but was not interviewed by law enforcement. In 

addition to the five witness statements, Dillbeck’s legal team

obtained a post-warrant statement from Dillbeck’s childhood friend

to help contextualize Dillbeck’s “bizarre” behavior surrounding 

Deputy Hall’s shooting.
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Then, Dillbeck’s legal team gave the post-warrant witness

statements to two doctors who reviewed them and offered new 

opinions about Dillbeck’s mental state. Dillbeck argues that the 

doctors’ new opinions prove that his capacity was diminished 

during the prior murder, that he was insane at the time of the prior 

murder, and that he was incompetent to plead guilty to the prior 

murder.

Finally, in response to the State’s argument below that

Dillbeck’s detailed 1979 plea colloquy evinced his mental state, 

Dillbeck’s legal team obtained a statement from the assistant public 

defender who met with Dillbeck on the day he was arrested but did 

not otherwise have contact with him. Dillbeck argues that the

attorney’s affidavit shows that his plea colloquy contains inaccurate 

representations because he answered affirmatively when asked if he 

had discussed the facts of the case with her, but she does not recall

doing so. He also argues that this statement supports his new 

doctors’ reports questioning whether he was competent to plead 

guilty because it shows he had been primed to say “yes” during the 

colloquy.
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The Claim is Untimely

We agree with the circuit court that Dillbeck’s newly 

discovered evidence claim is “decades late.” Rule 3.851(d)(2)(A) 

precludes filing a postconviction claim based on newly discovered 

evidence more than one year after the conviction and sentence of 

death become final unless “the facts on which the claim is 

predicated were unknown to the movant or the movant’s attorney 

and could not have been ascertained by the exercise of due 

diligence.” See also Fla. R. Crim. P. 3.851(e)(2) (requiring good 

cause for failing to assert successive claims earlier). “It is 

incumbent upon the defendant to establish the timeliness of a 

successive postconviction claim.” Mungin v. State, 320 So. 3d 624, 

626 (Fla. 2020).

In attempting to avoid the time bar, Dillbeck argues that due 

diligence only requires reasonable efforts. He contends that nothing

in the 1979 witness statements would have given him or his 

counsel reason to know that there were third-party witnesses to his

bizarre behavior who could shed light on his mental state at the 

time of the 1979 shooting. We disagree.
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Dillbeck himself detailed his behavior during the shooting in 

his 1979 plea colloquy and again during his 1991 penalty phase 

testimony. It is also beyond dispute that there were witnesses who 

saw and even interacted with Dillbeck at the beach around the time 

of Deputy Hall’s shooting. Some of the statements taken in 1979 

refer to other people who were present on the beach, so it is clear 

that law enforcement did not take statements from everyone and 

that there were other potential witnesses to question. Moreover, the 

1979 witness statements contain observations about Dillbeck’s 

behavior: one witness stated that Dillbeck “[s]eemed like he was 

kinda depressed”; another said that Dillbeck was “pacing so hard 

an[d] . . . he looked like he was messed up.” Similarly, the arresting 

officer’s 1979 statement described Dillbeck as “bewildered.” 

Whether any of the witnesses at the beach, who were either 

expressly named or discoverable by due diligence, might have been 

able to describe Dillbeck’s behavior in a way that could have 

potentially aided him in advancing claims about his mental state is 

a question that diligent counsel would ask—particularly as 

Dillbeck’s mental state has been a feature of his claims for 30-plus 

years. Because counsel inquired “decades late,” we affirm the 
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summary denial of Dillbeck’s newly discovered evidence claim as 

untimely.

The “New” Evidence Would Not Probably Yield a Lesser Sentence

We also agree with the circuit court’s alternative ruling that 

even if Dillbeck’s claim were timely, he would still not be entitled to 

relief from his death sentence because the “new” evidence is not of 

such nature that it would probably yield a less severe sentence on 

retrial. See Dailey, 329 So. 3d at 1285.

The circuit court cogently explained why Dillbeck cannot make 

the necessary showing:

Five aggravators were proven in this case: (1) under 

sentence of imprisonment; (2) murder committed during 

a robbery/burglary; (3) murder committed to avoid 

arrest/effect escape; (4) murder was especially heinous, 

atrocious, or cruel; and (5) prior violent felony for the 

first-degree murder of Deputy Hall. Dillbeck, 643 So. 2d 

at 1028 n.1. Dillbeck proved the following mitigation: (1) 

he was substantially impaired under § 921.141(6)(f), 

Florida Statutes (1989); (2) childhood abuse; (3) fetal 

alcohol effects; (4) treatable mental illness; (5) 

imprisonment at an early age in a violent prison; (6) good 

behavior; (7) a loving family; and (8) remorse. Id. at n.2. 

Overall, little weight was given to this mitigation by the 

[trial court].

. . . Dillbeck’s new evidence (at most) shows he was 

acting oddly before and after he killed Deputy Hall and 

that two doctors, who have evaluated this evidence in 

2023, doubt his competence to plead guilty and form 

premeditated intent in 1979. That barely alters the 
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profile of the aggravating and mitigating circumstances, 

especially considering intent was litigated extensively in 

1991 [in the Vann murder case], his 1979 plea colloquy 

[for Deputy Hall’s murder] was introduced to the [Vann 

penalty-phase] jury, and the State would still be able to 

use the non-vacated 1979 conviction to prove the prior 

violent felony aggravator.

Accordingly, because Dillbeck’s newly discovered evidence 

claim is untimely and, moreover, because the alleged new evidence 

would not probably yield a less severe sentence, we affirm the 

circuit court’s summary denial.

Dillbeck is Not Entitled to a Stay of Execution

Dillbeck also argues that the circuit court should have granted 

a stay of execution to allow him to challenge his 1979 conviction. 

He acknowledges that the circuit court correctly ruled that his 

attempt to invalidate the prior violent felony aggravator is not 

cognizable. Indeed, Johnson v. Mississippi, 486 U.S. 578, 584-85

(1988), requires “reexamination of [a] death sentence” only where 

the death sentence is “based in part on a reversed conviction.” 

Because Dillbeck’s 1979 conviction stands, Johnson provides no 

avenue to invalidate the prior violent felony aggravator that is based 

on his 1979 conviction.
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Yet Dillbeck argues that the circuit court erred by denying his 

Johnson claim without first giving him the chance to use the alleged 

new evidence to invalidate his 1979 conviction. He is wrong that 

the circuit court needed to hold open the Johnson claim, and he is 

also wrong that the circuit court erred in denying a stay.

In challenging the denial of his Johnson claim, Dillbeck points 

to no authority that supports holding open an unripe Johnson claim 

based on speculation that it might become cognizable. To the 

contrary, many cases do say that “[p]ostconviction relief cannot be 

based on speculative assertions.” Jones v. State, 845 So. 2d 55, 64 

(Fla. 2003). And others generally recognize that a “concession that 

[an] issue is not yet ripe” means “th[e] claim is without merit.” 

Kimbrough v. State, 886 So. 2d 965, 984 (Fla. 2004) (addressing 

premature claim of competency for execution).

Of course, Dillbeck may challenge, and he does challenge, the 

circuit court’s denial of his motion for stay of execution. But that 

argument also fails because “a stay of execution on a successive 

motion for postconviction relief is warranted only where there are 

substantial grounds upon which relief might be granted.” Davis v. 

State, 142 So. 3d 867, 873-74 (Fla. 2014) (citing Buenoano v. State, 
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708 So. 2d 941, 951 (Fla. 1998)). Belated attacks on a conviction 

that has been final for over 40 years fall well short of the necessary 

showing, particularly where the proposed vehicle for those attacks 

is a newly discovered evidence claim under rule 3.850 that cannot 

meet the applicable due-diligence requirement. See Fla. R. Crim. P. 

3.850(b)(1).

Accordingly, we affirm the circuit court’s summary denial of 

Dillbeck’s Johnson claim and its denial of a stay of execution.

(3) Length of Time on Death Row

In his third and last issue on appeal, Dillbeck argues that the 

circuit court erred in denying his claim that executing him after 30 

years on death row violates the Cruel and Unusual Punishments 

Clause of the Eighth Amendment. We disagree and affirm, 

consistent with our longstanding precedent that such claims are 

“facially invalid,” including when the defendant’s stay on death row 

exceeded 30 years. Valle v. State, 70 So. 3d 530, 552 (Fla. 2011) 

(33 years); see also Lambrix v. State, 217 So. 3d 977, 988 (Fla. 

2017) (over 31 years); Long v. State, 271 So. 3d 938, 946 (Fla. 2019) 

(over 30 years).
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“[N]o federal or state court has accepted the argument that a 

prolonged stay on death row constitutes cruel and unusual 

punishment.” Booker v. State, 969 So. 2d 186, 200 (Fla. 2007). 

And Dillbeck’s arguments about conditions on death row do not 

persuade us that our precedent is “clearly erroneous.” State v. 

Poole, 297 So. 3d 487, 507 (Fla. 2020); see also Muhammad v. 

State, 132 So. 3d 176, 207 (Fla. 2013) (holding that “the fact that 

[the defendant] was placed in special solitary confinement after 

murdering a correctional officer while on death row does not provide 

a sufficient distinguishing basis for this Court to depart from its 

established precedent” repeatedly rejecting the claim that “adding 

execution to the lengthy period of time . . . served on death row 

constitutes cruel and unusual punishment”).4

4. Dillbeck argues that the conditions on death row amount 

to “solitary confinement” prohibited by the original meaning of the 

Cruel and Unusual Punishments Clause. In rejecting this 

argument below, the circuit court looked to the original meaning of 

“solitary confinement”—i.e., “complete isolation of the prisoner from 

all human society” and confinement in a cell such that “he had no 

direct intercourse with or sight of any human being,” In re Medley, 

134 U.S. 160, 167-68 (1890). And then the circuit court compared 

those conditions to the “access to multimedia kiosks . . . 

telephones, . . . and outdoor exercise” available to Florida death row 

inmates, Davis v. Dixon, No. 3:17-CV-820-MMH-PDB, 2022 WL 

1267602, at *3 (M.D. Fla. Apr. 28, 2022). We decline to hold that 
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Moreover, because Dillbeck has “contributed to the lengthy 

time and delay by continually challenging his convictions and 

sentences,” he “ ‘cannot now contend that his punishment has been 

illegally prolonged.’ ” Lambrix, 217 So. 3d at 988 (quoting Valle, 70 

So. 3d at 552). Dillbeck has been on death row since 1991; his 

convictions and sentences became final in 1995, and litigation on 

his initial postconviction motion did not end until 2007. In the time 

when Dillbeck asserts there was no impediment to the issuance of 

his death warrant—i.e., from 2013 when his clemency proceedings 

concluded until 2023 when the Governor signed his death 

warrant—Dillbeck continued to challenge his convictions and 

sentences through three successive postconviction motions.

We affirm the circuit court’s denial of this claim.

III. ANALYSIS OF HABEAS PETITION

In his habeas petition, Dillbeck challenges (1) the lack of a 

unanimous jury recommendation for death; (2) the HAC aggravator; 

the circuit court erred in refusing to expand the original meaning of 

a term to justify a claim that we have repeatedly held is not 

cognizable under the Eighth Amendment.
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and (3) the effecting-escape aggravator. None of his claims warrant 

relief, and we deny his habeas petition.

(1) Jury Recommendation

In his first habeas claim, Dillbeck argues that executing him 

would violate the Eighth Amendment because his jury did not 

unanimously recommend a death sentence. But we have already 

rejected Dillbeck’s Eighth Amendment challenge to his death 

sentence, including for lack of juror unanimity as to the 

recommended sentence. See Dillbeck, 234 So. 3d at 559.

And we are “bound by Supreme Court precedents that 

construe the United States Constitution,” and the Supreme Court’s 

precedent establishes that the Eighth Amendment does not require 

a unanimous jury recommendation of death. Poole, 297 So. 3d at

504. The Supreme Court “rejected th[e] exact argument . . . that

the Eighth Amendment requires a unanimous jury recommendation 

of death” in Spaziano v. Florida, 468 U.S. 447, 465 (1984). Poole, 

297 So. 3d at 504. To the extent that our prior decision rejecting 

Dillbeck’s Eighth Amendment challenges to his death sentence does

not foreclose relief, Spaziano is still good law and requires denying 

Dillbeck’s claim.
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(2) HAC Aggravator

Dillbeck next argues that the HAC aggravator is facially invalid 

because it is vague, overbroad, and fails to serve the narrowing 

function required by the United States Constitution so that it was 

fundamental error to apply the aggravator in his case. This claim is 

procedurally barred and meritless.

“[H]abeas corpus ‘is not a second appeal and cannot be used 

to litigate or relitigate issues which could have been . . . or were 

raised on direct appeal.’ ” Deparvine v. State, 146 So. 3d 1071, 

1108 (Fla. 2014) (quoting Breedlove v. Singletary, 595 So. 2d 8, 10 

(Fla. 1992)). On direct appeal, Dillbeck unsuccessfully challenged

the HAC aggravator. Dillbeck, 643 So. 2d at 1028 n.3, 1031 n.6. 

He cannot challenge it again now.

Moreover, the Court has consistently rejected as “without 

merit” challenges that the HAC aggravator is “overbroad, vague, and 

fail[s] to narrow the class of persons eligible for the death penalty.” 

Card v. State, 803 So. 2d 613, 628 (Fla. 2001); see also Cruz v. 

State, 320 So. 3d 695, 731 (Fla. 2021) (“declin[ing] to revisit” 

precedent “rejecting as meritless the argument that the jury 

instruction on HAC is unconstitutionally vague”) (citing Gilliam v. 
- 25 -

State, 582 So. 2d 610, 612 (Fla. 1991)); Colley v. State, 310 So. 3d 

2, 16 (Fla. 2020) (“declin[ing] to revisit” precedent rejecting the 

argument that “the HAC aggravator [is] unconstitutionally vague 

and overbroad”) (citing Victorino v. State, 23 So. 3d 87, 104 (Fla. 

2009)).

Dillbeck is not entitled to habeas relief on this claim.

(3) Effecting-Escape Aggravator

In his third and last habeas claim, Dillbeck argues that the 

effecting-escape aggravator is invalid because the evidence is 

insufficient to prove that his primary motive in killing Vann was 

elimination of a witness to avoid detection. He also argues that 

manifest injustice would result if the Court does not overturn its 

prior decision holding this claim is procedurally barred.

On direct appeal, Dillbeck unsuccessfully challenged the 

escape aggravator, see Dillbeck, 643 So. 2d at 1031, but he did not 

raise the motive-based argument at issue here. Rather, Dillbeck 

raised his motive-based challenge for the first time in his first 

successive postconviction motion, and we held it is “procedurally 

barred.” Dillbeck, 168 So. 3d 224, at *1.
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We reject Dillbeck’s argument that enforcing the procedural 

bar would result in “manifest injustice.” State v. Akins, 69 So. 3d 

261, 268 (Fla. 2011) (quoting Muehleman v. State, 3 So. 3d 1149, 

1165 (Fla. 2009)). Even if Dillbeck had timely raised his motivebased challenge to the escape aggravator, and even if he had 

succeeded in having the aggravator stricken, any error would be 

harmless beyond a reasonable doubt in light of the four other 

aggravators in his case, which include the HAC and prior violent 

felony aggravators that “are among the most serious aggravators.” 

Buzia v. State, 82 So. 3d 784, 800 (Fla. 2011); see also AguirreJarquin v. State, 9 So. 3d 593, 608 (Fla. 2009) (“Even if the witness 

elimination aggravator were stricken, there would still be a nine-tothree jury recommendation for the death penalty along with several 

other aggravators, including heinous, atrocious, or cruel (HAC) 

[and] prior violent felony[.]”), receded from on other grounds by 

Hooks v. State, 286 So. 3d 163, 170 (Fla. 2019).

We deny habeas relief as to this claim.

IV. CONCLUSION

For the above reasons, we affirm the circuit court’s summary 

denial of Dillbeck’s fourth successive postconviction motion. We 
- 27 -

also deny Dillbeck’s habeas petition and his pending motions for 

stay of execution and oral argument.

No rehearing will be entertained by this Court, and the 

mandate shall issue immediately.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, COURIEL, GROSSHANS, 

and FRANCIS, JJ., concur.

LABARGA, J., concurs in result with an opinion.

LABARGA, J., concurring in result.

In State v. Poole, 297 So. 3d 487 (Fla. 2020) (receding in part 

from this Court’s decision in Hurst v. State, 202 So. 3d 40 (Fla. 

2016)), I strongly dissented on the issue of unanimity in jury 

recommendations of death, and I adhere to my dissent today.

However, even before this Court’s decision in Poole, including 

in Dillbeck v. State, 234 So. 3d 558, 559 (Fla. 2018), this Court 

consistently held that the Hurst unanimity requirement did not 

apply retroactively to sentences of death that became final before 

the United States Supreme Court’s decision in Ring v. Arizona, 536 

U.S. 584 (2002). See, e.g., Hitchcock v. State, 226 So. 3d 216, 217 

(Fla. 2017); Lambrix v. State, 227 So. 3d 112, 113 (Fla. 2017).

Consequently, I concur in the result.
- 28 -

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

Angela C. Dempsey, Judge

Case No. 371990CF002795AXXXXX

And an Original Proceeding – Habeas Corpus

Linda McDermott, Chief, Capital Habeas Unit, Office of the Federal 

Public Defender, Northern District of Florida, Tallahassee, Florida; 

and Baya Harrison of Baya M. Harrison, P.A., Monticello, Florida,

for Appellant/Petitioner

Ashley Moody, Attorney General, Charmaine M. Millsaps, Senior 

Assistant Attorney General, and Jason W. Rodriguez, Assistant 

Attorney General, Tallahassee, Florida,

for Appellee/Respondent