text:
    IN RE: AMENDMENTS TO the FLORIDA RULES OF JUVENILE PROCEDURE-2017 FAST-TRACK REPORT.
    No. SC17-2040
    Supreme Court of Florida.
    [February 1, 2018]
    Kara Ann Fenlon, Chair, Juvenile Court Rules Committee, Tallahassee, Florida; and Joshua E. Doyle, Executive Director, Krys Godwin and Mikalla Andies Davis, Staff Liaisons, The Florida Bar, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Florida Bar’s Juvenile Court Rules Committee (Committee) has filed a “fast-track” out-of-cycle report proposing amendments to the Florida Rules of Juvenile Procedure in response to recent legislation. See Fla. R. Jud. Admin. 2.140(e). We have jurisdiction and adopt the amendments as proposed.

The Committee proposes amendments to rules 8.305- (Shelter Petition, Hearing, and Order), 8.325 (Answers and Pleadings), 8.335 (Alternatives Pending Disposition), 8.340 (Disposition Hearings), 8.345 (Post-Disposition Relief), 8.347 (Motion to Supplement Order of Adjudication, Disposition Order, and Case Plan), 8.400 (Case Plan Development), 8.401 (Case Plan Development for Young Adults), 8.415 (Judicial Review of Dependency Cases), 8.435 (Reinstatement of Jurisdiction for Young Adult), and 8.505 (Process and Service), and forms 8.967 (Order of Disposition, Acceptance of Case Plan, and Notice of Hearing), 8.973A (Order on Judicial Review for Child Age 17 or Older), 8.973B (Order on Judicial Review), and 8.973C (Order on Judicial Review for Young Adults in Extended Foster Care). The majority of the proposals implement statutory' changes that became effective May 1, 2017, - and July 1, 2017. The other amendments are purely technical changes.

The Board of Governors of The Florida Bar unanimously approved the proposals. The Committee did not publish its proposals before filing them with the Court.

After considering the proposed amendments and reviewing the relevant legislation, we amend the Florida Rules of Juvenile Procedure as proposed by the Committee. The more significant amendments are discussed below.

The amendments to subdivisions (e)(1) (Notice; In General) and (e)(2) (Notice; Summons) of rule 8.347 (Motion to Supplement Order of Adjudication, Disposition Order, and Case Plan) add language that must be included in a notice of hearing on a motion to supplement and in a summons in order for the court to find that the failure of a properly served person to appear at' the preliminary hearing on the motion constitutes consent to the motion. See ch. 2017-151, § 10, Laws of - Fla. (amending § 39.507(7)(b), Fla. Stat. (2016)). The amendment to subdivision (f)(3) (Preliminary Hearing on Motion) of rule 8.347 provides, “Failure of the person properly served with notice to personally appear at the preliminary hearing on the motion [to supplement] constitutes the person’s consent to the court’s finding that the person contributed to the dependency status of the child pursuant to the statutory definition of a dependent child.” New subdivision (g)(5) (Evidentiary Hearing; Failure to Appear) provides that if a person appears for the preliminary hearing on the motion to supplement and the court orders that person to personally appear at the evidentiary hearing on the motion, that person’s failure to appear for the eviden-tiary hearing constitutes consent to the court’s finding that the person contributed to the dependency status of the child.

New subdivision (d)(9) is added to rule 8.400 (Case Plan Development) to require the Department of Children and Families (Department) to attach the child’s transition plan, if applicable, to the case plan. See ch. 2017-151, § 17, Laws.of Fla. (amending § 39.6035(4), Fla. Stat. (2016)). New. (c)(5) (Department Responsibility).is added to rule 8.401 (Case Plan Development for Young Adults) to require the Department to attach the young adult’s transition plan to the case plan. The amendment to subdivision (b)(3) "(Review Hearings for Children 17 Years of Age) of rule 8.415 (Judicial Review of Dependency Cases) requires the Department to update the child’s transition plan before each judicial review hearing and 'requires the court to approve the transition plan before the child’s 18th birthday. Forms 8.973B (Order on Judicial Review), and 8.973C (Order on Judicial Review for Young Adults in Extended Foster Care) are amended consistent with the rule changes.

The amendment to subdivision (a)(1) (Petition for Reinstatement of Jurisdiction) of rule 8.435 (Reinstatement of Jurisdiction for Young Adult) is in response to chapter 2017-151, section 3, Laws of Florida, which amended section 39.013(2), Florida .Statutes (2016), to extend the court’s jurisdiction over a child with a 'disability who is in foster care until that child reaches the age of 22. Subdivision (a)(1) of the rule is amended to provide that “[i]f a young adult who is-between the ages of 18 and 21, or 22 if the young adult has a disability, is re-admitted to foster care, the department shall petition the court to reinstate jurisdiction over the young adult.” Forms 8.973A (Order on Judicial Review for Child Age 17 or Older), 8.973B (Order on Judicial Review),, and 8.973C (Order on Judicial Review for Young Adults in Extended Foster Care) are amended consistent with the rule change.

Accordingly, the Florida Rules of Juvenile Procedure are amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall take effect immediately upon the release of this opinion. Because the amendments were not published for comment prior to their - adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

RULE 8.305. SHELTER PETITION, HEARING, AND ORDER

(a) [No Change]

(b) Shelter Hearing.

(1)—(8) [No Change]

(9) If the identity of a parent is unknown, the court must conduct the inquiry required by law.

(910) The court shall inquire of the parents whether the parents have relatives who might be considered for placement of the child. The parents shall provide to the court and all parties identification and location information regarding the relatives. The court shall advise the parents that the parents have a continuing duty to inform the department of any relative who should be considered for placement of the child.

(1911) The court shall advise the parents, that if the parents fail to substantially comply with the case plan their parental rights may be terminated and the child’s out-of-home placement may become permanent.

(1112) The court must request that the parents consent to provide access to the child’s medical and educational records and provide information to the court, the department, or its contract agencies, and any guardian ad litem or attorney for the child. If a parent is unavailable, is unable to consent, or withholds consent and the court'determines access to the records and information is necessary to provide services for the child, the court shall issue an order granting access.

(1213) The court may order the parents to provide all known medical information to the department and to any others granted access.

(1314) If the child has or is suspected of having a disability and the parent is unavailable pursuant to law, the court must appoint a surrogate parent or refer the child to the district school superintendent for appointment of a surrogate parent.

(1415) If the shelter hearing is conducted by a judge other than a judge assigned to hear dependency cases, a judge assigned to hear dependency cases shall hold a shelter review on the status of the child within 2 working days after the shelter hearing.

. (c)-(d) [No Change]

RULE 8.325. ANSWERS AND PLEADINGS

(a)-(b) [No Change]

(c) Admission of or Consent to Dependency. The parent or legal custodian may admit or consent to a finding of dependency. The court shall determine that any admission or consent to a finding of dependency is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the admission or consent, and that the parent has been advised of the right to be represented by counsel. The court shall incorporate these findings into its order in addition to findings of fact specifying the act or acts causing dependency, by whom committed, and facts on "which the findings are based.If the answer-admits the allegations of the petition it-shall constitute’consent-to a predisposition -study.

RULE 8.335. ALTERNATIVES PENDING DISPOSITION

If the court finds that the evidence supports the allegations of the petition, it may make a finding of dependency as provided by law. If the predisposition and otherre-ports required by law are available, the court may proceed to disposition or continue the case for a disposition hearing. If the case is continued, the court may refer the case to appropriate agencies for additional study and recommendation. The court may order the child continued in placement, designate the placement or the agency that will be responsible for the child’s placement, and enter such other orders deemed necessary to protect the health, safety, and well-being of the child, including diagnosis, evaluation, treatment, and visitation.

RULE 8.340. DISPOSITION HEARINGS

(a)-(b) [No Change]

(c) Orders of Disposition. The court shall in its written order, of disposition include:

(l)-(9) [No Change]

(10) approval of the case plan and any reports required by law as filed with the court. If the court does not approve the case plan at the disposition hearing, the court must set a hearing within 30 days after the disposition hearing to review and approve the case plan. ■

Committee Notes

[No Change]

RULE 8.345. POST-DISPOSITION RELIEF

(a) Motion for Modification of Placement. A child who has been placed in his or . her own home, in the home of a relative, or in some other place, under the supervision or legal custody of the department, may be brought before the court by the department or any interested person on a motion for modification of placement. If neither the department, the child, the parents, the legal custodian, nor any appointed guardian ad litem or attorney ad litem object to the change, then the court may enter an order making the change in placement without a hearing. If the department, the child, the parents, the legal custodian, or any appointed guardian ad litem or attorney ad litem object to the. change of placement, the court shall conduct a hearing and thereafter enter an order changing the placement, modifying the conditions of placement, continuing placement as previously ordered, or placing .the child with the department or a licensed child-caring agency.

(1) In cases in which the issue before the court is - whether a- child should be reunited with a parent, and the child is currently placed with someone other than a parent, the court must review the conditions for return and determine whether the parent-has substantially-complied-with the- terms-of-the-case- -plancircumstances that caused the out-of-home placement and issues subsequently identified have been remedied to the extent that the return of the child to the home with an in-home safety plan prepared or approved^ by the department will not be detrimental to the child’s safety, well-being, and physical,, mental, and emotional healthof the -child-is not endangered' by-the-return of the -child to the home.

(2) In cases in which the issue before the court is whether a child who is placed in the custody of a parent should be reunited with the other parent upon a finding the case planthat the circumstances that caused the -out-of-home placement and issues subsequently - identified have been remedied to :the extent that the return of the child to the home of the other parent with an in-home safety plan prepared or approved by. the department will- not be detrimental - to the child, the court-.must determine that the safety, well-being, and physical, mental, and emotional health .of the. child would not be endangered, by reunification and that reunification would be in the best interest of the child.

(b) [No Change]

RULE 8.347. MOTION TO SUPPLEMENT ORDER OF ADJUDICATION, DISPOSITION ORDER, AND CASE PLAN

(a)-(d) [No Change]

(e) Notice.

(1) In General. Parents or legal custodians who have previously been properly served with the dependency petition or who have previously appeared in the dependency proceeding shall be served with a notice of hearing and copies of the motion and the initial order of adjudication of dependency in the same manner as the service of documents that are filed after the service of the initial dependency petition as provided in these rules. The notice shall require the person on whom it is served to appear for the preliminary hearing on the motion at a time and place specified, not less than 72 hours after service of the motion. The document containing the notice to respond or appear must contain, in type at least as large as the balance of the document, the following or substantially similar language: “FAILURE TO PERSONALLY APPEAR AT THE PRELIMINARY HEARING ON THE MOTION CONSTITUTES YOUR CONSENT TO THE COURT’S FINDING THAT YOU CONTRIBUTED ,TO THE DEPENDENCY STATUS OF THE CHILD PURSUANT TO THE STATUTORY DEFINITION OF A DEPENDENT CHILD AND MAY ULTIMATE- - LY RESULT IN LOSS OF CUSTODY OF THIS CHILD (OR CHILDREN).”

(2). Summons.

(A) Parents or legal custodians who have not been .properly .served with the . dependency petition or who have not previously appeared in the dependency proceed-

ing must be properly served with a summons. and copies of the motion . and the initial order of adjudication of dependency. The summons must require the person on whom it is served to appear for a preliminary hearing on the motion at a time and place specified, not less than 72 hours' after service of the summons. The summons must contain, in type at least as large as the balance of the document, the following or substantially similar language: “FAILURE TO PERSONALLY APPEAR AT THE PRELIMINARY HEARING ON THE MOTION CONSTITUTES YOUR CONSENT TO THE COURT’S FINDING THAT YOU CONTRIBUTED TO. THE DEPENDENCY STATUS OF THE CHILD PURSUANT TO THE STATUTORY DEFINITION OF A DEPENDENT CHILD AND MAY ULTIMATELY RESULT IN LOSS OF CUSTODY OF THIS CHILD (OR CHILDREN).”

(B)-(G) [No Change]

(f)Preliminary Hearing on Motion.

(1) [No Change]

(2) If the parent or legal custodian who is the subject of the motion wishes to challenge the motionor-tf-the parent—or legal custodian was properly served and ■fails to appear at the preliminary' hearing, the court must schedule an evidentiary hearing on the motion within 30 days.

(3) If the parent or legal custodian who is the subject of the motion wishes to consent to the motion without admitting or denying the allegations of the motion, the court shall enter an order supplementing the initial order of adjudication of dependency based on the sworn allegations of the motion. Failure of the person properly served' with' notice to personally appear at the preliminary hearing on the motion constitutes the person’s consent to the court’s finding that the person contributed to the dependency status of the child pursuant to the statutory definition of a dependent child. ■

(g) Evidentiary Hearing.

(l)-(4) [No Change]

(5) Failure to Appear. If a person appears for the preliminary hearing on the motion and the court orders that person to personally appear at the evidentiary hearing on the motion,.stating the date, time, and place of the evidentiary, hearing, then that person’s, failure to appear for the scheduled evidentiary hearing constitutes consent to the court’s finding that the person contributed to the dependency status of the child pursuant to the statutory definition of a dependent child.

(h) [No Change]

(i) Supplemental Disposition Hearing.

(1) [No Change]

(2) Supplemental Predisposition-Stu-dyReports and Case Plan.

(A) A written case' plan and a-predispo-s-ition.studyany- reports required by law prepared by an authorized agent Of the department must be filed with the court, served upon the parents of the child, provided to the representative of the guardian ad litem program, if the program has been appointed, and provided to all other parties not less than 72 hours before the supplemental disposition hearing.

(B) The court may grant an exception to the requirement for a ■predisposition studyany reports required by law by separate order or within the judge’s order of disposition upon a, finding that all the family and child information required by law is available in other documents filed with the court.

(3) Supplemental Order of Disposition. The court shall in its written supplemental order of disposition include:

(A)-(G) [No Change]

(H) approval of the case plan and any reports required by law or direction to amend the case plan within 30 days; and

(I) [No Change]

RULE 8.400. CASE PLAN DEVELOPMENT

(a)-(c) [No Change]

(d) Department Responsibility.

. (1)—(8) [No Change]

(9) The department'must attach a copy of the child’s transition plan, if applicable, to the case plan.

(e)-(f) ‘ [No Change]

RULE 8.401. CASE PLAN DEVELOPMENT FOR YOUNG ADULTS

(a) [No Change]

(b) Contents.. The case plan must be written simply and clearly in English and the principal language of the young adult. Each case plan must contain:

(1) . Aa description of the services, including independent living services, to be provided to the young adult;

(2) Aa copy of the young adult’s transition plan;.

(3) Tthe permanency goal of transition from licensed care to independent living; and ,

(4) Tthe date the compliance period expires.

(c) Department Responsibility.

(1)—(4) [No Change]

(5) The department must attach a copy of the young adult’s transition plan to the case plan.

(d)-(f) [No Change]

RULE 8.415. JUDICIAL REVIEW OF DEPENDENCY CASES

(a) [No Change]

(b) Scheduling Hearings.

(l)-(2) [No Change]

(3) Review Hearings for Children 17 Years of Age. The court must hold a judicial review hearing within 90 days after a child’s 17th birthday. The court must also issue an order, separate from the order on judicial review, that the specific disabilities of nonage of the child have been removed pursuant to sections 743.044, 743.045, 743.046, and 743.047, Florida Statutes, as well as any other disabilities of nonage that the court finds to be in the child’s best interest to remove. The court must continue to hold timely judicial review hearings. The department must update the child’s transition plan before each judicial review hearing as required by Iaw.If necessary, the court may review the status of the child more frequently during the year before the child’s 18th birthday. At the last review hearing before the child reaches 18 years of age, the'court must also address whether the child plans to remain in foster care, and, if so, ensure that the child’s transition plan complies with the law. The court must approve the child’s transition plan before the child’s 18th birthday.

(4) [No Change]

(c)-(i) [No Change]

Committee Notes

[No Change]

RULE 8.435. REINSTATEMENT OF JURISDICTION FOR YOUNG ADULT

(a) Petition for Reinstatement of Jurisdiction.

(1) If a young adult who is between the ages of 18 and 21, or 22 if the young adult has a disability, is re-admitted to foster care,, the department shall petition the court to reinstate jurisdiction over the young adult.

(2)—(3) [No Change]

(b)-(c) [No Change]

RULE 8.505. PROCESS AND SERVICE

(a) Personal Service. On the filing of a petition requesting the termination of

parental rights, a copy of the .petition and notice of the date, time, and place of the advisory hearing must be personally served on:

(l)-(5) [No Change]

(6) any prospective parent identified by law, unless a court order has been entered which indicates no further notice is required, or if the prospective father executes an affidavit of nonpaternity or a consent to termination of his parental rights which is accepted by the court after notice and opportunity to be heard by all parties to address the best interests of the child in accepting such affidavit;

(7)-(9) [No Change] '

(b)-(d) [Ño Change]

FORM 8.967. ORDER OF DISPOSITION, ACCEPTANCE OF CASE PLAN, AND NOTICE OF HEARING

      . Art. V, § 2(a), Fla. Const.

      . See ch. 2017-8, §§ 3, 8,. Laws of Fla. (amending § 39,701(3)(a), Fla. Stat.; effective May 1, 2017); ch, 2017-151, §§ 3, 7, 10, 12-13, 17, 21, 46, Laws of,Fla. (amending §§ 39.013(2), 39.402(8)(c)j 39.5Q7(7)(b), 39.521(l)(a), 39.522(2), (3), 39.6035(4), 39,801(3)(a), Fla. .Stat.; effective July 1, 2017).

      . All comments must be filed with the Court on or before April 2, 2018, with a certificate of service verifying that a copy has been served on the Committee Chair, Kara Ann Fenlon, 301 S. Monroe Street, Suite 401, Tallahassee, Florida 32301-1861, Kara.Fenlon® flpd2.com, and on the Bar Staff Liaison to the Committee, Mikalla Andies Davis, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, mdavis@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until-April 23, 2018, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Fiiing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a non-lawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Comments •filed via the Portal must be submitted in Microsoft Word 97 or higher. See In re Electronic Filing in the Florida Supreme Court, Fla. Admin. Order No. AOSC17-27 (May 9, 2017). Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


source: Caselaw Access Project

author: PER CURIAM. LEWIS, J,

license: Public Domain

text:
    STATE of Florida, Appellant, v. William Frances SILVIA, Appellee.
    No. SC17-337
    Supreme Court of Florida.
    [February 1, 2018]

      Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellant
    James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellee
   PER CURIAM.

The issue in this case is whether William Frances Silvia’s original, valid waiver of postconviction proceedings and counsel precludes him from claiming a right to relief under Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, — U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court has jurisdiction. See art, V, § 3(b)(1), Fla. Const. Silvia is a prisoner under sentence of death whose sentence, which was imposed after a jury recommended death by a vote of 11—1, became final on June 6,2011. See Silvia v. State, 60 So.3d 959, 966 (Fla. 2011).

This Court fully explained the facts underlying Silvia’s sentence of death in its opinion on direct appeal. Id. at 963-64. On direct appeal, Silvia argued, among other claims, that Florida’s capital sentencing scheme . was unconstitutional under the United States Supreme Court’s opinion in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which provided the underpinnings of the United States Supreme Court’s opinion in Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst. See Silvia, 60 So.3d at 978. This Court denied the claim and affirmed Silvia’s convictions and sentences. Id. -

In 2012, Silvia waived his right to post-conviction proceedings and counsel. See Silvia v. State, No. SC12-1863, 2013 WL 5035694, *1 (Fla. Sept. 11, 2013) (123 So.3d 1148). Upon review in 2013, this Court “conclude[d]' that the trial court did not abuse its discretion in discharging Silvia’s postconviction counsel and dismissing post-conviction proceedings.” Id. at *2. Silvia does not dispute in this case the validity of his original waiver.

Three years after this Court affirmed the dismissal of Silvia’s postconviction proceedings, the United States Supreme Court decided Hurst v. Florida, and this Court decided Hurst on remand. After Hurst, Silvia.filed a Successive Motion to Vacate Death Sentence claiming a right to Hurst relief. The postconviction court concluded that Silvia was not “seeking to reinstate his previously waived postconvietion proceedings because he had changed his mind” but was “seeking to avail himself of a newly established constitutional right he did not possess at the time of the waiver.” The court determined that Silvia “could not knowingly and voluntarily waive a right ... he did not possess at the time of the waiver” arid, therefore, found that Silvia “is not precluded from seeking Hurst relief.” Applying Hurst to Silvia’s sentence, the postconviction court granted Silvia a new penalty phase. The State appealed.

The issue in this case is whether Silvia’s waiver of postconvictión proceedings and counsel precludes him from claiming a right to ■ Hurst relief. Although there is certainly a difference between a defendant who changes his mind after validly waiving postconviction proceedings and a defendant who asserts a right to relief under Hurst, we conclude that this distinction does not afford Silvia any basis for claiming Hurst relief that would entitle him to a new penalty phase.

In Mullens v. State, 197 So.3d 16 (Fla. 2016), an analogous case, a defendant waived the right to a penalty phase jury and then attempted to claim a right to relief under Hurst. This Court denied relief, explaining that a defendant “cannot subvert [a] right ... by waiving that right and then suggesting that- a subsequent development in the law has fundamentally undermined his sentence.” Id. at 40. In Mullens, this Court held that Hurst does not apply to defendants who validly waived théir' right to a penalty phase jury, writing:

If a defendant remains free to waive his or her right to a jury trial, even if such a waiver under the previous law of a different jurisdiction automatically imposed judicial factfinding and sentencing, we fail to see how Mullens, who was entitled to present mitigating evidence to a jury as a matter of Florida law even after he pleaded guilty and validly waived that right, can claim error. As our sister courts have recognized, accepting such an argument would encourage capital defendants to abuse the judicial process by waiving the right to jury sentencing and claiming reversible error upon a judicial sentence of death.

Id. at 39-40 (emphasis omitted).

In this ease, Silvia does not challenge the validity of his postconviction waiver. In fact, in reviewing Silvia’s waiver in 2013, this Court made clear:

•In addition, Silvia indicated that he understood that by waiving postconviction proceedings early in the process— before a motion was filed—-he was losing permanently his right to take advantage of any changes that may occur in the law, that he was waiving his right to federal review, and that because his at- ' torneys had not yet'completed their discovery, it was unknown what issues could be raised. Silvia acknowledged that he understood everything his attorneys had done to date and that his attorneys could discover information that would be beneficial to him in postconviction. Silvia indicated that he understood 'that the issues in his case were .not fully developed, that his attorneys could not proceed further in their investigation without his cooperation, and that his attorneys could discover- information that would be beneficial to him. He -nevertheless indicated that he did not wish his attorneys to proceed with any further discovery and that he was voluntarily waiving his postconviction counsel and proceedings.

Silvia, 2013 WL 6036694, at *2 (emphasis added). Further, at the time of - Silvia’s postconviction waiver in 2012, Ring, which provided the underpinnings for Hurst' v. Florida, had been decided for over a decade and almost all defendants, including Silvia, had raised a Ring claim on direct appeal. Thus, we conclude that Silvia’s original, valid postconviction waiver, which he has never contested before this Court, precludes him from claiming a right to relief under Hurst.

CONCLUSION

For the reasons fully explained above, we conclude that Silvia’s valid postconviction waiver, which included his understanding that “he was losing permanently his right to take advantage of any changes that may occur in the law,” Silvia, 2013 WL 5035694, at *2, precludes him from claiming a right to the benefit of Hurst. Accordingly, we reverse the postconviction court’s order granting Silvia a new penalty phase and reinstate his death sentence.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, POLSTON, and LAWSON, JJ, concur.

CANADY, J, concurs in result.

LEWIS, J, dissents with an opinion.

LEWIS, J,

dissenting.

Today this Court advances for the first time a new excuse, not a valid reason, to push Florida’s death penalty jurisprudence into an unconstitutional abyss. This case is a classic example which illustrates application of this Court’s retroactivity approach to Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State, 202 So.3d 40 (Fla. 2016), to deny relief to defendants who have fully and completely preserved the constitutional challenges to Florida’s death sentencing scheme. This new denial approach results in equal protection and due process violations, constitutes cruel and unusual punishment, and the arbitrary and capricious operation of the death penalty. The Court simply turns its eyes from the violation of the Sixth, Eighth, and Fourteenth Amendments under the United States Constitution and the' corresponding provisions under our Florida Constitution.

The construction of our current death penalty dilemma finds its origin in the issuance of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Although it was not a death penalty case, our high court in Apprendi addressed the issue of requiring a unanimous jury vote for certain factors. Two years later, in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the United States Supreme Court applied the principles of Apprendi to capital defendants, holding that capital defendants “are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.” Ring, 536 U.S. at 589, 122 S.Ct. 2428. For years after Ring, defendants facing the death penalty in Florida, including Silvia, attempted to rely on and asserted that Ring required a unanimous jury verdict to support a valid death penalty judgment. Over and over and over again the concept addressed in Ring with regard to unanimous jury verdicts was denied application in death penalty proceedings in Florida. E.g., Pietri v. State, 885 So.2d 245, 276 (Fla. 2004) (denying relief because the felony murder aggravator involved “circumstances submitted to a jury and found to exist beyond a reasonable doubt”); Sochor v. State, 883 So.2d 766, 790 (Fla. 2004) (“We previously have addressed this [Ring] claim and denied relief.”); Kimbrough v. State, 886 So.2d 965, 984 (Fla. 2004) (“This Court has previously declined to hold that Florida’s death penalty scheme is unconstitutional on the basis of Apprendi or Ring.”).

It was not until January 12, 2016, when the United States Supreme Court issued Hurst v. Florida that the “fundamental constitutional right” requiring a unanimous jury verdict arose in death penalty proceedings constructed and built upon the foundational principles announced earlier in Ring.

With the issuance of Hurst v. Florida, the logical question arose as to how it would be applied and the extent to which it would be retroactively applied to those pending execution of a death sentence. That retroactivity question was answered, in part, by this Court in Asay v. State, 210 So.3d 1 (Fla. 2016), when the Court held that Hurst would retroactively apply to only those cases in which the death penalty had been imposed on or after the date Ring had been issued in 2002. At that time, I reasoned in Asay that Hurst should also apply to cases prior to 2002 if the issue- of requiring a unanimous jury verdict had been properly preserved for review in the proceedings even prior to Ring, relying on James v. State (James I), 615 So.2d 668, 669 (Fla. 1998). Asay, 210 So.3d at 30 (Lewis, J., concurring in result). The Court rejected that reasoning and adopted a fixed retroactive date.

Within these parameters, cases began flowing to this Court in successive postcon-viction motions. Those cases that became final after Ring with unanimous jury' verdicts for death were denied relief. E.g., King v. State, 211 So.3d 866, 889-93 (Fla. 2017); Davis v. State, 207 So.3d 142, 174-75 (Fla. 2016). Defendants in cases that became final after Ring in which the defendants had totally waived a penalty phase jury trial were also denied relief. Mullens v. State, 197 So.3d 16, 38-40 (Fla. 2016). Until this time, in all other cases in which less than a unanimous jury verdict for death was returned, the judgment for death has been quashed and the cases remanded to the trial court for proceedings consistent with Hurst without regard to any preservation issues. Even those cases in which defendants conceded during oral argument that Ring did not apply to Florida death cases based on existing Florida law have received the benefit of Hurst, but Silvia will not simply because he did not come to this Court for an oral argument on a postconviction motion having preserved the issue at trial and on direct appeal.

We now face Silvia in which Silvia has received a post-Ring, nonunanimous death penalty verdict. Silvia v. State, 60 So.3d 959, 966 (Fla. 2011). By now, it is well-established Florida law that Hurst requires unanimity and applies retroactively to “defendants whose sentences became final after the United States Supreme Court issued its opinion in Ring.” Mosley v. State, 209 So.3d 1248, 1276 (Fla. 2016). Thus, regardless of the majority’s unwillingness to mention this fact, Hurst applies retroactively to Silvia’s case. E.g., Hojan v. State, 212 So.3d 982, 999 (Fla. 2017) (“Hurst applies] retroactively to defendants, like Hojan, whose sentences were not yet final when the Supreme Court issued Ring.”). There. have been many post-Ring, nonunanimous defendants whose various appeals and postconviction motions were correctly resolved when this Court granted .them Hurst relief. See., e.g., Gregory v. State, 224 So.3d 719 (Fla. 2017) (post-Ring, nonunanimous postconviction motion defendant); Jeffries v. State, 222 So.3d 538 (Fla. 2017) (post-Ring, nonunani-mous direct appeal defendant); Bailey v. Jones, 225 So.3d 776 (Fla. 2017) (post-Ring, nonunanimous habeas corpus petition defendant). In view of these cases, the appropriate disposition is clear. Yet, for the first time, the majority decision eschews recent precedent and denies Hurst relief to a post-Ring, nonunanimous defendant because he did not continue a merit-less, fruitless—and at that point frivolous—Ring challenge in the context of a postconviction proceeding even though he had asserted that right during trial and on direct appeal and had fully preserved the argument for appellate purposes. Silvia, 60 So.3d at 978. Silvia was not even required to file' for postconviction relief but did file and later withdrew his meritless pleading. This arbitrary denial of rights treats similarly situated defendants differently. In doing so, Silvia is being denied equal protection and due process under the law, violating his rights under the Fourteenth Amendment and article I, section 2 of the Florida Constitution.

Although not specifically stated, the basis for this decision is simple, albeit misguided. However, by skirting the underlying law, the majority disregards the real substance of the question presented and develops a holding absent any precedential support. The decision impliedly relies upon the concept regarding a waiver of postcon-viction proceedings. See - majority op. at 350-51, As a general matter, this Court has held that the waiver of postconviction proceedings is a final determination. See Trease v. State, 41 So.3d 119, 126 (Fla. 2010); James v. State (James II), 974 So.2d 365, 368 (Fla. 2008). Nevertheless, neither Trease nor James II determinatively answers the issue in this case. Our James II holding was actually quité narrow: “[W]e conclude that a mere change of mind' is an insufficient basis for setting aside a previous waiver,” James II, 974 So.2d at 368 (emphasis added). We explained that James could not overcome his waiver because there was no dispute that the Durocher proceedings were followed and James “asserted no valid basis for avoiding his waiver.” James II, 974 So.2d at 368. Likewise, as it concerned reversing the waiver of , postconviction proceedings, Trease held that “because this Court in James[ II] held that a ‘change of mind is insufficient grounds to set aside a prior valid waiver, we deny Trease’s request to reinstate his postconviction proceedings.” Trease, 41 So.3d at 126. Trease and James II are factually distinguishable from this case because, here, Silvia did not simply change his mind like the defendants in those cases. Instead, the trial court here— which is better positioned than this Court to determine Silvia’s intentions—specifically found that Silvia “is not seeking to reinstate his previously waived postconviction proceedings because he has changed his mind. Rather he is seeking to avail himself of a newly established constitutional right, which. has been held to apply retroactively.” As a result, the trial court here vacated Silvia’s death sentence. In my view, the constitutional rights generated by Hurst are a sufficient basis, to avoid Silvia’s waiver. Cf. James II, 974 So.2d at 368 (changing of the mind was not a sufficient basis): Such a scenario is specifically contemplated as an exception to the time limitation on postconviction motions, under Florida Rule of Criminal Procedure 3.851:

(2) No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(l)[] unless it alleges:
(B) the. fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively ....

Fla. R. Crim. P. 3.851(d)(2)(B). Accordingly, nothing in Florida law precludes Silvia from raising a Hurst claim.

In the past, this Court has granted relief on changes in the law retroactively to post-conviction defendants who preserved the issue for review on their direct appeal prior to the change. James I, 615 So.2d at 669. In James I, we granted relief to a defendant who had asserted at trial and on direct-appeal that the jury instruction pertaining to the heinous; atrocious, or cruel aggravating circumstance was unconstitutionally vague before the United States Supreme Court ultimately reached that same conclusion in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). James I, 615 So.2d at 668-69. We concluded that—despite his case be coming final before the principle of law had a case name—it would be unjust to deprive James of the benefit of the Supreme Court’s holding in Espinosa after he had properly presented and preserved such a claim. James I, 615 So.2d at 669. Similarly, I believe that defendants who properly preserved the substance of a Ring challenge at trial and on direct appeal prior to that decision should also be entitled to have their constitutional challenges heard. Hitchcock v. State, 226 So.3d 216, 218-19 (Fla. 2017) (Lewis, J., concurring in result); Asay, 210 So.3d at 30 (Lewis, J., concurring in result). Similar to the defendant in James I, Silvia properly preserved his Ring challenge at trial and on direct appeal. Silvia, 60 So.3d at 978. Therefore, Silvia is entitled to Hurst relief. He could not validly waive a constitutional right that simply did not exist at the time of the alleged waiver.

In Mosley, this Court recognized that “fundamental .fairness alone may .require the retroactive application of certain decisions involving the death penalty after the United States Supreme Court decides a case that changes our jurisprudence.” Mosley, 209 So.3d at 1274-75. There, we cited James I and held that, “because Mosley raised a Ring claim at his first opportunity and was then rejected at every turn, we conclude that fundamental fairness requires the retroactive application of Hurst, which defined the effect of Hurst v. Florida, to Mosley.” Mosley, 209 So.3d at 1275. In that case, we further conducted a standard retroactivity analysis under Witt v. State, 387 So.2d 922 (Fla. 1980); however, Mosley clearly stands for the proposition that, under James I, it is fundamentally unfair to withhold Hurst relief to post-Ring, nonunanimous defendants who properly raised the issue, regardless of whether they are in this Court on direct appeal or postconviction • motion. Mosley, 209 So.3d at 1274-75. Therefore, to deny Hurst relief to Silvia is a violation of his right to due process under the Fourteenth Amendment and article I, section 9 of the Florida Constitution. See Gore v. State, 719 So.2d 1197, 1203 (Fla. 1998) (“Due process requires that fundamental fairness be observed in each case, for each defendant.”).

As a practical matter, if Silvia had merely re-raised his Ring claim in a postconviction motion, then he would be entitled to Hurst relief. Yet, at the time of his post-conviction proceedings, any Ring challenge by Silvia was futile, meritless, and frivolous. See Johnson v. State, 904 So.2d 400, 406 (Fla. 2005) (“[V]irtually every postcon-viction appeal filed in this Court since Ring invokes that case. We repeatedly have denied such requests for clear lack of merit .....”), abrogated by Jackson v. State, 213 So.3d 754 (Fla. 2017). Moreover, under this Court’s broader postconviction standard, it would have been inappropriate for Silvia to continue his Ring challenge through postconviction proceedings. This Court has stated,

The purpose of the Rule 3.850[] motion is to provide a means of inquiry into the alleged constitutional infirmity of .a 'judgment or sentence, not to review ordinary trial errors cognizable by means of a direct appeal. The motion procedure is neither a second appeal nor a substitute for appeal. Matters which were raised on appeal and decided adversely to the movant are not cognizable by motion under Rule 3.850. Furthermore, any matters which could have been presented on appeal are similarly held to be foreclosed from consideration by motion under the Rule. Therefore, a Rule 3.850 motion based upon grounds which either were or could have been raised as issues on appéal may be summarily denied.

McCrae v. State, 437 So.2d 1388, 1390 (Fla. 1983) (emphasis added) (citations omitted). Silvia properly preserved the error and unsuccessfully challenged Ring at trial and on direct appeal. Silvia, 60 So.3d at 978. Therefore, there was nothing further for Silvia to challenge relating to the unconstitutionality of Florida’s previous death scheme through postconviction proceedings and he was not required to perform a frivolous act. Moreover, nothing requires capital defendants to pursue post-conviction proceedings. Despite this, the majority denies, the Hurst relief that is clearly warranted. Such a decision effectively encourages postconviction counsel to raise meritless claims, even if they have been decided on direct appeal, simply to satisfy an arbitrary procedural step in the hope of future retroactivity.

Crucially, nothing in this Court’s post-Hurst jurisprudence suggests any requirement for defendants to have pursued post-conviction appeals to receive the benefit of Hurst. This Court has noted, however, that defendants who waived their Sixth Amendment right to a jury are precluded from benefitting from Hurst. E.g„ Mullens, 197 So.3d at 38-40. Because the defendant in Mullens waived the rights to which Hurst applied, we correctly concluded that the defendant waived his entitlement to Hurst relief. Mullens, 197 So.3d at 38-40. The majority relies on Mullens as “an analogous case” and its only support for this decision. Majority op. at 350-51. It never explains why Mullens is analogous, and perhaps that is because Mullens is inappo-site. Mullens totally waived his rights to a penalty phase jury determination to which Hurst applied. Whereas, here, Silvia simply did not proceed with postconviction proceedings, which is wholly separate from the Sixth and Eighth Amendment rights implicated by Hurst. In effect, the majority attempts to compare a lightning bug to the lightning. A little over one year ago, in Hurst, this Court waxed poetic about the right- to a jury trial as a quintessential right in both Florida and the United States. Hurst, 202 So.3d at 53-59. We called this right our “birthright and inheritance.” Id. at 54 (quoting Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)). Yet, now the Court equates waiver of this “birthright” to not proceeding with po'stconviction proceedings—which originally were a judicial creation to efficiently address the “postconviction crisis” caused in Florida by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See Baker v. State, 878 So.2d 1236, 1238-44 (Fla. 2004) (surveying the history of postconviction relief in Florida). Silvia did not waive his right to a jury and that jury returned a nonunani-rrious death recommendation. Quite simply, to deny him relief is to deny him his right to a jury trial under the Sixth Amendment and article I, section 22 of the Florida Constitution, along with his right to be free from an arbitrary death penalty under the Eighth Amendment and article I, section 17 of the Florida Constitution.

Relatedly, the majority does not make clear whether it treats Silvia’s waiver of postconviction proceedings as a waiver of his right to habeas corpus. Of course, ha-beas corpus constitutes a substantial portion of postconviction proceedings; thus it would appear that this decision may effectively preclude Silvia and other similarly situated defendants from filing writs of habeas corpus. If this understanding is correct, then the decision borders dangerously on a suspension of these writs to a class of individuals, the right to which is protected under article I, section 9 of the United States Constitution and article I, section 13 of the Florida Constitution. In my view, our case law on not proceeding with postconviction proceedings does not supersede the express language of our Florida Constitution: “The writ of habeas corpus shall be grantable by right, freely and without cost.” Art. I, § 13, Fla. Const.

Finally, this decision is ripe for reversal. As demonstrated above, there are a number of constitutional claims that Silvia can raise from this decision. Furthermore, unlike Asay which, despite -its faults, relied heavily on Florida’s adequate and independent retroactivity standard under Witt, Asay, 210 So.3d at 15-22, this decision does not rely on any standard: The reasoning here amounts to "this is the answer because I say it is.” Considering the fundamental constitutional rights at issue, such reasoning is an insufficient basis to deny Hurst relief.

Based on the foregoing, I would apply Hurst to Silvia’s case, vacate his death sentence, and remand for resentencing in accordance with the Constitution, our precedent, and fundamental fairness.

      . Durocher v. Singletary, 623 So.2d 482, 485 (Fla. 1993) (establishing that a defendant is entitled to waive postconviction proceedings so long as there is an inquiry conforming to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), into the "knowing, intelligent, and voluntary” nature of the waiver).

      . This subdivision prescribes a one-year time limit on filing an initial postconviction motion after the sentence becomes filial. See Fla. R. Crim. P. 3.851(d)(1).

      . Today, capital postconviction motions are covered by Florida Rule of Criminal Procedure 3.851, which was adopted in 1993. See Fla. R. Crim. P. 3.851 cmt. (1993).