text:           Supreme Court of Florida
                                     ____________
  
                                     No. SC17-2054
                                     ____________
  
                                DANIEL LEE DOYLE,
                                     Appellant,
  
                                            vs.
  
                                STATE OF FLORIDA,
                                     Appellee.
  
                                     [June 26, 2018]
  
  PER CURIAM.
  
        We have for review Daniel Lee Doyle’s appeal of the circuit court’s order
  
  denying Doyle’s motion filed pursuant to Florida Rule of Criminal Procedure
  
  3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
  
        Doyle’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). Doyle responded to this Court’s order to show cause arguing why
  
  Hitchcock v. State, 226 So. 3d 216 (Fla. 2017), cert. denied, 138 S. Ct. 513 (2017),
  
  should not be dispositive in this case.
        After reviewing Doyle’s response to the order to show cause, as well as the
  
  State’s arguments in reply, we conclude that Doyle is not entitled to relief. Doyle
  
  was sentenced to death following a jury’s recommendation for death by a vote of
  
  eight to four, and his sentence of death became final in 1985. Doyle v. State, 460
  
  So. 2d 353 (Fla. 1984).1 Thus, Hurst does not apply retroactively to Doyle’s
  
  sentence of death. See Hitchcock, 226 So. 3d at 217. Accordingly, we affirm the
  
  denial of Doyle’s motion.
  
        The Court having carefully considered all arguments raised by Doyle, 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.
  
        As in prior Hitchcock2-related cases, I concur in result because I recognize
  
  that this Court’s opinion in Hitchcock is now final. However, I continue to adhere
  
  
  
         1. Although our decision affirming Doyle’s death sentence does not specify
  the number of Doyle’s jurors who voted to recommend death, the Eleventh Circuit
  Court of Appeals referenced the jury vote in its decision regarding Doyle’s federal
  petition for a writ of habeas corpus. See Doyle v. Dugger, 922 F.2d 646, 648 (11th
  Cir. 1991).
         2. Hitchcock v. State, 226 So. 3d 216 (Fla.), cert. denied, 138 S. Ct. 513
  (2017).
  
  
                                          -2-
  to the views expressed in my dissenting opinion in Hitchcock that Hurst3 should
  
  apply retroactively to defendants like Doyle. Hitchcock, 226 So. 3d at 220-21
  
  (Pariente, J., dissenting).
  
         Applying Hurst to Doyle’s case, in addition to the jury’s nonunanimous
  
  recommendation for death of eight to four, this Court determined on direct appeal
  
  that the State did not prove the avoid arrest aggravating factor beyond a reasonable
  
  doubt and therefore struck it before determining that the death penalty was
  
  proportionate in Doyle’s case. Doyle v. State, 460 So. 2d 353, 358 (Fla. 1984);
  
  majority op. at 2; see Middleton v. State, 42 Fla. L. Weekly S637, 2017 WL
  
  2374697, *1-2 (Fla. June 1, 2017) (Pariente, J., dissenting) (explaining how a
  
  stricken aggravating factor affects the Hurst harmless error analysis).4 Further, this
  
  case demonstrates other concerns, specifically the absence of the trial court finding
  
  any mental mitigation. As then-Justice Overton, joined by then-Justice McDonald,
  
  explained on direct appeal dissenting in part,
  
  
  
        3. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 136 S. Ct.
  2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).
  
        4. I also note that Doyle challenged his sentence of death under Caldwell v.
  Mississippi, 472 U.S. 320 (1985), several times. See Doyle v. Singletary, 655 So.
  2d 1120, 1121 (Fla. 1995); Doyle v. State, 526 So. 2d 909, 911 (Fla. 1988). As I
  have explained, Caldwell further supports the conclusion that the Hurst error is not
  harmless beyond a reasonable doubt in cases where the jury did not unanimously
  recommend a sentence of death. See Reynolds v. State, 43 Fla. L. Weekly S163,
  2018 WL 1633075, *15-17 (Fla. Apr. 5, 2018) (Pariente, J., dissenting).
  
                                          -3-
        The record reflects that [Doyle] was 21 years old; that he had an IQ of
        between 70 and 80, and was borderline retarded; that he was suffering
        from organic brain defects, which caused dyslexia, and had emotional
        problems; that he had been enrolled in handicapped classes; and that
        his mental condition was chronic.
  Doyle, 460 So. 2d at 358 (Overton, J., concurring in part and dissenting in part).
  
  After explaining that substantial evidence of mental mitigation was presented,
  
  which the trial court should not have rejected, Justice Overton explained that the
  
  trial court applied the wrong standard “in determining the presence or absence of
  
  the above mitigating circumstances.” Id. at 359.
  
        Therefore, in addition to the Court striking one of the three aggravating
  
  factors, the presence of substantial mitigation demonstrates that this case cries out
  
  for a resentencing by a jury in light of Hurst. While the crime itself was certainly
  
  aggravated, at least 4 jurors concluded that the death penalty was not appropriate,
  
  likely due to the significant evidence of mitigation. Accordingly, if Hurst applied
  
  to Doyle’s case, I would conclude that the Hurst error is not harmless beyond a
  
  reasonable doubt and would, accordingly, grant Doyle a new penalty phase.
  
  An Appeal from the Circuit Court in and for Broward County,
       Edward Harold Merrigan, Jr., Judge - Case No. 061981CF009310A88810
  
  Mark E. Olive of the Law Office of Mark E. Olive, P.A., Tallahassee, Florida,
  
        for Appellant
  
  Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Ilana Mitzner,
  Assistant Attorney General, West Palm Beach, Florida,
  
  
  
                                           -4-
  for Appellee
  
  
  
  
                 -5-
  