author: QUINCE, J.

text:
    Sandra Kent WHEATON, Petitioner, v. Mardella WHEATON, Respondent.
    No. SC17-716
    Supreme Court of Florida.
    January 4, 2019
    Maegan P. Luka, Philip J. Padovano, and Joseph T. Eagleton of Brannock & Humphries, Tampa, Florida; and Robert Stober of Hersoff, Lupino & Yagel, LLP, Tavernier, Florida, for Petitioner
    Dale R. Coburn, Gaelan P. Jones, and Matthew S. Francis of Vernis & Bowling of the Florida Keys, P.A., Islamorada, Florida, for Respondent
   QUINCE, J.

Petitioner Sandra Wheaton seeks review of the decision of the Third District Court of Appeal in Wheaton v. Wheaton , 217 So.3d 125 (Fla. 3d DCA 2017), on the ground that it expressly and directly conflicts with Boatright v. Philip Morris USA, Inc. , 218 So.3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco Co. , 229 So.3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc. , 235 So.3d 993 (Fla. 1st DCA 2017), regarding whether proposals for settlement made pursuant to section 768.79, Florida Statutes (2018), and Florida Rule of Civil Procedure 1.442 must comply with the email service provisions of Florida Rule of Judicial Administration 2.516. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons that follow, we quash the decision of the Third District.

FACTS AND PROCEDURAL HISTORY

Respondent, Mardella Wheaton, sued her ex-daughter-in-law, Petitioner, Sandra Wheaton, for unlawful detainer. Petitioner served a proposal for settlement on Respondent via email. Respondent received the proposal but did not accept it.

The trial court granted Petitioner's motion for summary judgment. Petitioner then moved to enforce her proposal for settlement and to collect attorney's fees. Respondent opposed the motion on three grounds: (1) the proposal was vague; (2) the proposal was not made in good faith; and (3) the proposal failed to strictly comply with the e-mail service requirements of rule 2.516. The trial court rejected the vagueness argument but agreed that the proposal failed to strictly comply with the requirements of rule 2.516. The basis for the trial court's ruling was that Petitioner's email "did not include a certificate of service, a subject line containing the words 'SERVICE OF COURT DOCUMENTS,' and [failed to comply with] other requirements of rules 1.442, 1.080 and 2.516 of the Florida Rules of [Civil Procedure and Judicial Administration.]" In support of its conclusion, the trial court relied on the Fourth District Court of Appeal's decision in Matte v. Caplan , 140 So.3d 686 (Fla. 4th DCA 2014), and precedent from this Court stating that section 768.79 and rule 1.442 must be strictly construed. Therefore, according to the trial court, Petitioner's failure to comply with all of the formatting requirements set forth in rule 2.516(b)(1)(E) rendered the proposal unenforceable.

Petitioner appealed the trial court's decision to the Third District Court of Appeal, arguing that "because the proposal for settlement is neither a pleading nor a 'document filed in any court proceeding,' it is not subject to the requirements of rule 2.516." Wheaton , 217 So.3d at 127. The Third District acknowledged that subdivision (a) of rule 2.516 applies only to documents that are filed in court proceedings, and that section 768.79 and rule 1.442 expressly forbid a party from filing a proposal when it is initially served. Id. However, the court disagreed with Petitioner's reliance on the language in subdivision (a) of rule 2.516. Id. Instead, the court found that "[t]he relevant language is contained in subdivision (b) of rule 2.516, which provides in pertinent part: 'All documents required or permitted to be served on another party must be served by e-mail , unless the parties otherwise stipulate or this rule otherwise provides.' " Id. The district court went on to hold that

the document in question (the proposal for settlement) is "permitted to be served on another party." And because the parties did not "otherwise stipulate," and because the rule does not "otherwise provide," this proposal for settlement "must be served by e-mail" and therefore must be served in compliance with the e-mail requirements of rule 2.516, regardless of whether the document is contemporaneously filed with the court. We find this language plain and unambiguous, and hold that a proposal for settlement falls clearly within the scope of rule 2.516(b) and is subject to that rule's requirements.

Id. at 127-28 (footnote omitted). In so holding, the district court noted that it "agree[d] with the decision and analysis" set forth in the First District Court of Appeal's decision in Floyd v. Smith , 160 So.3d 567 (Fla. 1st DCA 2015), and the Fourth District's decision in Matte v. Caplan , 140 So.3d 686 (Fla. 4th DCA 2014). Wheaton , 217 So.3d at 128.

Petitioner filed a motion for rehearing, arguing that the district court's decision was inconsistent with this Court's decision in Kuhajda v. Borden Dairy Co. of Alabama, LLC , 202 So.3d 391 (Fla. 2016), which was published after briefing was completed in Wheaton . The district court summarily denied Petitioner's motion. Now before this Court, Petitioner contends that the Third District's decision expressly and directly conflicts with Boatright v. Philip Morris USA, Inc. , 218 So.3d 962 (Fla. 2d DCA 2017), McCoy v. R.J. Reynolds Tobacco Co. , 229 So.3d 827 (Fla. 4th DCA 2017), and Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc. , 235 So.3d 993 (Fla. 1st DCA 2017).

ANALYSIS

The conflict issue presented is whether proposals for settlement made pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 must comply with the email service provisions of Florida Rule of Judicial Administration 2.516. The standard of review in determining whether an offer of settlement comports with section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442 and is de novo. Pratt v. Weiss , 161 So.3d 1268, 1271 (Fla. 2015). Because the conflict issue involves the interpretation of the Court's rules, in this case Florida Rule of Judicial Administration 2.516, the standard of review is also de novo. Saia Motor Freight Line, Inc. v. Reid , 930 So.2d 598, 599 (Fla. 2006).

Relevant Provisions

Section 768.79, Florida Statutes ("Offer of judgment and demand for judgment"), "provides a sanction against a party who unreasonably rejects a settlement offer." Willis Shaw Exp., Inc. v. Hilyer Sod, Inc. , 849 So.2d 276, 278 (Fla. 2003). Section 768.79 provides in relevant part:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him on the defendant's behalf ... if ... the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.

The statute further provides that an offer shall:

(a) Be in writing and state that it is being made pursuant to this section.
(b) Name the party making it and the party to whom it is being made.
(c) State with particularity the amount offered to settle a claim for punitive damages, if any.
(d) State the total amount.

§ 768.79(2), Fla. Stat. (2018). The section also states that a proposal "shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section." § 768.79(3), Fla. Stat. (2018).

Section 768.79 is implemented by Florida Rule of Civil Procedure 1.442 ("Proposals for Settlement"). The rule provides that a proposal shall:

(A) name the party or parties making the proposal and the party or parties to whom the proposal is being made;
(B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F);
(C) state with particularity any relevant provisions;
(D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal;
(E) state with particularity the amount proposed to settle a claim for punitive damages, if any;
(F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule 1.080.

Fla. R. App. P. 1.442(c)(2). The rule also states that a proposal "shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule." Fla. R. App. P. 1.442(d).

While rule 1.442 requires proposals for settlement to include a certificate of service, rule 1.080 no longer contains a certificate of service provision. Instead, the rule states that "[e]very pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516." Fla. R. Civ P. 1.080(a).

The relevant portions of rule 2.516 provide:

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding , except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party . No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.
(1) Service by Electronic Mail ("e-mail").All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides. A filer of an electronic document has complied with this subdivision if the Florida Courts e-filing Portal ("Portal") or other authorized electronic filing system with a supreme court approved electronic service system ("e-Service system") served the document by e-mail or provided a link by e-mail to the document on a website maintained by a clerk ("e-Service"). The filer of an electronic document must verify that the Portal or other e-Service system uses the names and e-mail addresses provided by the parties pursuant to subdivision (b)(1)(A).

(Emphasis added.) The rule goes on to provide the following formatting requirements:

(i) All documents served by e-mail must be sent by an e-mail message containing a subject line beginning with the words "SERVICE OF COURT DOCUMENT" in all capital letters, followed by the case number and case style of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the name and telephone number of the person required to serve the document.
(iii) Any document served by e-mail may be signed by any of the "/s/," "/s," or "s/" formats.
(iv) Any e-mail which, together with its attached documents, exceeds the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court, must be divided and sent as separate e-mails, no one of which may exceed the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court and each of which must be sequentially numbered in the subject line.

Fla. R. Jud. Admin. 2.516(b)(1)(E)(i)-(iv).

Conflict Cases

In Boatright , the plaintiffs served four proposals for settlement on the defendants-one from each plaintiff to each defendant. Boatright , 218 So.3d at 964. The proposals were sent to the defendants via U.S. certified mail. Id. Following a jury verdict in their favor, the plaintiffs filed a motion for attorney's fees and costs based in part on the defendants' failure to accept the proposals for settlement. Id. The trial court denied the motion, finding that the plaintiffs were not entitled to attorney's fees and costs because they did not serve their proposals for settlement on the defendants by email, and therefore failed to strictly comply with section 768.79 and rule 1.442. Id.

In reversing the trial court, the Second District held that "proposals for settlement are not subject to the service requirements of rule 2.516 because the proposals do not meet rule 1.080(a)'s threshold requirement that they be 'filed in the action.' " Id. at 965. Additionally, the district court rejected the Wheaton court's reliance on subdivision (b) of rule 2.516, reasoning that " rule 2.516(b)(1)'s mandatory service requirement is confined to every pleading subsequent to the initial pleading and documents that are filed in court-it does not extend to literally every document which is due to be served." Id. at 970. In doing so, the district court certified conflict with the Third District's decision. Id. at 971.

In McCoy , the plaintiff served a proposal for settlement on each of three defendants by U.S. certified mail. McCoy , 229 So.3d at 828. The defendants received the proposals for settlement but did not accept them. Id. After trial, the plaintiff obtained a verdict that entitled him to attorney's fees under section 768.79 and moved for attorney's fees. Id. The defendants opposed the motion, arguing that the plaintiff failed to email the proposals pursuant to rule 2.516. Id. The trial court denied the motion. Id.

The Fourth District reversed the trial court, finding that "[w]here a party has actual notice of an offer of settlement, and the offering party has satisfied the requirements of section 768.79 on entitlement, to deny recovery because the initial offer was not emailed is to allow the procedural tail of the law to wag the substantive dog." Id. (citing Kuhajda , 202 So.3d 391 ). The court noted that both section 768.79 and rule 1.442 require service of proposals for settlement but prohibit filing, and found that as applied to rule 2.561(a), a proposal for settlement is neither a pleading nor a document "filed in any court proceeding." McCoy , 229 So.3d at 829 (quoting Fla. R. Jud. Admin. 2.516(a) ). Thus, "under the plain language of Rule 2.516(a), then, the initial offer of judgment is outside of the email requirements of that rule." Id. at 829.

The district court also disagreed with Wheaton , stating that in reaching its conclusion, the Third District

imports language from rule 2.516(b) to add words to the plain language of 2.516(a). Instead of focusing on subsection 2.516(a), which specifies when email service is "required," the Wheaton court looked to subsection 2.516(b) to hold that email service was required for the initial delivery of an offer of judgment.
We disagree with Wheaton ; subsection (a) is not ambiguous, so a court should not add words to manipulate its meaning.

Id. (citation omitted).

In Oldcastle , the plaintiff sent a proposal for settlement by email to the defendant. Oldcastle , 235 So.3d at 993-94. The defendant received the proposal-but did not accept it-and then the plaintiff received a judgment more than 25 percent greater than the amount demanded in the proposal. Id. at 994 (citing § 768.79(1), Fla. Stat. (2014) ). The defendant argued that the proposal had to be served in accordance with rule 2.516, which the First District rejected. Id. at 995.

The district court acknowledged that the plaintiff's proposal did not comply with the formatting requirements set forth by rule 2.516(b)(1)(E). However, the court found that these requirements did not apply because "compliance with rule 2.516 is not required when serving a proposal for settlement." Id. at 994. To reach its conclusion, the court examined rule 2.516(a) and found that "since the proposal for settlement is not to be filed when it is served, the proposal is not included in the clause 'every other document filed in any court proceeding.' " Id. at 994-95. In doing so, the court adopted the view of Boatright and McCoy and certified conflict with Wheaton . Oldcastle , 235 So.3d at 994.

Interpretation

We have previously stated that both rule 1.442 and section 768.79 should be strictly construed. See Campbell v. Goldman , 959 So.2d 223, 226 (Fla. 2007) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc. , 849 So.2d 276 (Fla. 2003) ). "[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation." Holly v. Auld , 450 So.2d 217, 219 (Fla. 1984) (quoting A.R. Douglass, Inc. v. McRainey , 102 Fla. 1141, 137 So. 157, 159 (1931) ); accord Forsythe v. Longboat Key Beach Erosion Control Dist. , 604 So.2d 452, 454 (Fla. 1992). If, however, the language of the rule is ambiguous and capable of different meanings, this Court will apply established principles of statutory construction to resolve the ambiguity. See, e.g. , Gulfstream Park Racing Ass'n, Inc. v. Tampa Bay Downs, Inc. , 948 So.2d 599, 606 (Fla. 2006).

From the plain language of section 768.79 and rule 1.442, neither require service by email. The procedure for communicating an offer of settlement is set out in section 768.79(3), Florida Statutes (2018), which states:

The offer shall be served upon the party to whom it is made, but it shall not be filed unless it is accepted or unless filing is necessary to enforce the provisions of this section.

(Emphasis added.) The statute only requires that the offer be served on the party to whom it is directed and not be filed with the court but does not require service by email.

Similarly, subdivision (d) of rule 1.442 outlines the procedure for communicating a proposal for settlement to the opposing party. The subdivision states:

(d) Service and Filing. A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.

Fla. R. Civ. P. 1.442(d). Again, the rule provides that the offer must be served on the party to whom it is directed and not filed with the court but does not require service by email. However, unlike section 768.79, rule 1.442 provides that a proposal for settlement must "include a certificate of service in the form required by rule 1.080." Fla. R. Civ. P. 1.442(c)(2)(G).

As previously mentioned, rule 1.080 does not specify the form of the certificate of service. Instead, the rule provides:

Every pleading subsequent to the initial pleading, all orders, and every other document filed in the action must be served in conformity with the requirements of Florida Rule of Judicial Administration 2.516.

Fla. R. Civ. P. 1.080(a) (emphasis added). This does not apply to proposals for settlement because a settlement offer is neither a pleading subsequent to the initial pleading, an order, or a document filed with the court. Accordingly, based on rule 1.080's plain language, rule 2.516 would not apply to proposals for settlement made pursuant to section 768.79 and rule 1.442.

It appears that in reaching its conclusion to the contrary, the Third District focused on construing rule 2.516 more than section 768.79 and rule 1.442. However, even the plain language of rule 2.516 does not support the Third District's conclusion. The provisions of rule 2.516 that are at issue in this case are subdivision (a), "Service; When Required," and subdivision (b), "Service; How Made." According to the first subdivision, "every pleading subsequent to the initial pleading and every other document filed in any court proceeding ... must be served in accordance with this rule." Fla. R. Jud. Admin. 2.516(a). The rule goes on to state in the second subdivision that "[a]ll documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule provides otherwise." Fla. R. Jud. Admin. 2.516(b)(1). Therefore, the plain language of the rule provides that if a document is (1) a pleading subsequent to the initial pleading, or (2) a document filed in any court proceeding, it must be served according to the rule. Then, the rule goes on to provide that service must be made by email if the document (1) requires service or (2) permits service.

The Third District appeared to agree that the rule only requires service if the document is a pleading subsequent to the initial pleading or a document filed in any court proceeding because it determined that a proposal for settlement is a document that is "permitted to be served on another party." Wheaton , 217 So.3d at 127 (quoting Fla. R. Jud. Admin. 2.516(b) ). However, if rule 2.516 creates two groups of documents that must be filed-documents that are required to be served and documents that are permitted to be served-proposals for settlement would not fall in the latter group. The proposal for settlement statute provides that a proposal "shall be served" on the party to whom it is made, but "shall not be filed" unless it is accepted or filing is necessary to enforce the provisions of the statute. § 768.79(3), Fla. Stat. (2018). Similarly, the rule that implements section 768.79 states "[a] proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule." Fla. R. Civ. P. 1.442(d). We have previously held that "[t]he word 'shall' is mandatory in nature." Sanders v. City of Orlando , 997 So.2d 1089, 1095 (Fla. 2008) ; see also Fla. Bar v. Trazenfeld , 833 So.2d 734, 738 (Fla. 2002) ("The word 'may' when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word 'shall.' "). Therefore, a proposal for settlement is a document that must be served on the party to whom it is made but must not be filed with the court. By its plain language, a proposal for settlement is not a required document as contemplated by rule 2.516. Accordingly, the Third District erred in finding that a proposal for settlement is subject to the requirements of rule 2.516.

In support of its conclusion, the Third District relied on two cases: the First District's decision in Floyd , 160 So.3d 567, and the Fourth District's decision in Matte , 140 So.3d 686. However, neither case addresses the issue of rule 2.516 as it relates to proposals for settlement. In Floyd , the First District considered whether a proposal for settlement had to contain "a certificate of service in the form required by rule 1.080." Floyd , 160 So.3d at 569 (quoting Fla. R. Civ. P. 1.442(c)(2)(G) ). Having addressed that specific issue, Floyd is inapplicable to the instant case because it did not consider the issue of whether rule 2.516 applied to service of a proposal for settlement. Likewise, in Matte , the court addressed a motion for sanctions sought pursuant to section 57.105, Florida Statutes (2013). Matte , 140 So.3d at 687-88. In that case, the court overlooked the limitation contained in rule 2.516(a) and began its analysis by construing subdivision (b). In doing so, the court found that preliminary service of a motion for sanctions under section 57.105 must be accomplished by email. However, motions for sanctions are similar to proposals for settlement in that they are forbidden from being initially filed. See § 57.105(4), Fla. Stat. (2018). This, as noted by the Second District Court of Appeal, "constitutes a fatal flaw in that court's reasoning."

Boatright , 218 So.3d at 969 ; see also Douglas v. Zachry Indus., Inc. , No. 6:13cv1943Or140GJK, 2015 WL 6750803, at *3 (M.D. Fla. Nov. 5, 2015) ("It is this Court's view that the Matte decision overlooked the limiting language-'filed in any court proceeding'-and reached an incorrect conclusion as a result.").

Moreover, even if this Court were to accept the Third District's interpretation, Petitioner's failure to comply with the email formatting requirements set forth in rule 2.516 would not render the proposal unenforceable. Respondent contends that when parties seek to obtain attorney's fees, "all t's must be crossed and i's dotted." Campbell , 959 So.2d at 227 (Pariente, J., specially concurring). However, we recently held that a proposal for settlement that did not strictly comply with rule 1.442(c)(2)(F) was not invalid where the proposal "complied with the relevant requirements of the rule that implemented the substantive requirements of section 768.79." Kuhajda , 202 So.3d at 396. In that case, we recognized that section 768.79 and rule 1.442 must be strictly construed but found that strict construction was required "in contexts in which the provisions of the rule implemented the substantive requirements of section 768.79." Id. at 395. Because we found that "the offers of judgment at issue in this case are not ambiguous," we "decline[d] to invalidate Kuhajda's offers of judgment solely for violating a requirement in rule 1.442 that section 768.79 does not require." Id. In doing so, we reasoned that "[t]he procedural rule should no more be allowed to trump the statute here than the tail should be allowed to wag the dog." Id. at 395-96. Ultimately, we held "a procedural rule should not be strictly construed to defeat a statute it is designed to implement." Id. at 396

As applied to the instant case, even if we were to find that rule 2.516 applied to proposals for settlement, Petitioner's failure to comply with the rule would not render the proposal unenforceable because the proposal complied with the substantive requirements set forth by section 768.79. Petitioner's proposal was in writing, stated that it was made pursuant to the section, named the party making the offer and the party to whom it was made, stated the amount offered to settle, and the total amount as required by the statute. See § 768.79(2)(a)-(d). Moreover, the proposal stated that it would resolve all damages that would otherwise be awarded in a final judgment, stated the relevant conditions, and whether the proposal included attorney's fees as required by the additional provisions found in the rule implementing the section. Fla. R. Civ. P. 1.442(c)(2). The only deficiencies the trial court found in the proposal were related to requirements set forth by rule 2.516. However, pursuant to Kuhajda , that should not be enough to find that the proposal is unenforceable. Because the proposal complied with the substantive requirements set forth by the statute, the proposal is valid.

CONCLUSION

The plain language of section 768.79 and rule 1.442 do not require service by email. Moreover, because a proposal for settlement is a document that is required to be served on the party to whom it is made, rule 2.516 does not apply. Accordingly, the Third District erred in affirming the trial court. Accordingly, we quash Wheaton , approve Boatright , McCoy , and Oldcastle , and remand for proceedings consistent with this decision.

It is so ordered.

PARIENTE, LEWIS, POLSTON, and LABARGA, JJ., concur.

CANADY, C.J., concurs in result with an opinion, in which LAWSON, J., concurs.

CANADY, C.J., concurring in result.

I agree with the majority's conclusion that the "Petitioner's failure to comply with the email formatting requirements" of Florida Rule of Judicial Administration 2.516 is not a basis for determining the settlement proposal to be invalid. Majority op. at 1244. But I disagree with the majority's holding that proposals for settlement are not subject to the email service requirement of rule 2.516. Majority op. at 1243. So I would adopt the Third District's view of the interpretation of rule 2.516 but reject its conclusion that the settlement offer was invalid.

The adoption of rule 2.516 was the culmination of an effort to develop "a comprehensive proposal to implement e-mail service in Florida." In re Amendments to Fla. Rules of Judicial Admin., Fla. Rules of Civil Procedure, Fla. Rules of Criminal Procedure, Fla. Prob. Rules, Fla. Rules of Traffic Court, Fla. Small Claims Rules, Fla. Rules of Juvenile Procedure, Fla. Rules of Appellate Procedure, Fla. Family Law Rules of Procedure-E-Mail Serv. Rule , 102 So.3d 505, 506 (Fla. 2012) (emphasis added). In adopting rule 2.516, we acknowledged that it "was modeled after" the then-existing Florida Rule of Civil Procedure 1.080. Id. at 507. And we stated unequivocally that "new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail." Id. (emphasis added). Nothing in the history, context, or structure of the rule suggests that the unqualified reference in the text of subdivision (b) to "[a ]ll documents required or permitted to be served" is intended to include only documents that are filed. Fla. R. Jud. Admin. 2.516(b)(1) (emphasis added).

Subdivision (a) of rule 2.516 contains general provisions concerning the requirements for service of pleadings and other documents that are "filed in any court proceeding." Fla. R. Jud. Admin. 2.516(a). The scope of subdivision (a) is thus limited to court filings. But that does not mean that the scope of subdivision (b) is similarly limited. Subdivision (a) simply does not address documents that are not filed. Subdivision (b), by its express terms, specifies how service must be made whenever "service is required or permitted to be made." Fla. R. Jud. Admin. 2.516(b). By its plain language, the scope of subdivision (b) necessarily extends beyond documents that are filed in court proceedings to include documents that are served but not filed.

The majority errs in relying on the reference in Florida Rule of Civil Procedure 1.442(c)(2)(G) to "a certificate of service in the form required by rule 1.080." Majority op. at 1242. Since the adoption of rule 2.516 in 2012, rule 1.080 has not contained a form certificate of service. With the adoption of rule 2.516 the form certificate of service was moved to the new rule, where it is set forth in subdivision (f). So the reference on which the majority relies is an obsolete, erroneous reference to a superseded version of rule 1.080-a nonsensical reference that can only be treated as meaningless. It can certainly provide no guidance for interpreting the scope of rule 2.516(b), much less a basis for disregarding the plain language of that rule.

LAWSON, J., concurs.

      Respondent appealed the summary judgment loss to the Third District, which affirmed the trial court per curiam. Wheaton v. Wheaton , 194 So.3d 1036 (Fla. 3d DCA 2016).

      Because the trial court found that the proposal was unenforceable, it did not reach the issue of whether the offer was made in good faith.

      Rule 1.080(f) used to contain a certificate of service provision, but it was deleted in 2012 when rule 2.516 was adopted. See In re Amend. to Fla. Rules of Jud. Admin. , 102 So.3d 505, 510 (Fla. 2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Loveman REESE, Appellant, v. STATE of Florida, Appellee.
    No. SC18-815
    Supreme Court of Florida.
    January 4, 2019
    Christopher J. Anderson, Neptune Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer A. Donahue, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

John Loveman Reese, a prisoner under sentence of death, appeals the circuit court's order denying in part and dismissing in part 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.

In 1993, a jury convicted Reese of first-degree murder, sexual battery with great force, and burglary with assault. Reese v. State , 694 So.2d 678, 680 (Fla. 1997). After hearing evidence at the penalty phase, the jury recommended a death sentence by an eight-to-four vote. Id. The trial judge accepted the recommendation and imposed a sentence of death. Id. On direct appeal in 1997, we affirmed the conviction. Id. at 685. However, we found the sentencing order deficient for failing to "expressly discuss[ ] and weigh[ ] the evidence offered in mitigation," as required by Campbell v. State , 571 So.2d 415, 419-20 (Fla. 1990). Reese , 694 So.2d at 684. Accordingly, we remanded for the entry of a new sentencing order. Id. In 1999, we again remanded the sentencing order, directing the trial court "to conduct a new hearing ... before determining an appropriate sentence." Reese v. State , 728 So.2d 727, 728 (Fla. 1999). In 2000, we reviewed the revised sentencing order and affirmed the sentence of death. Reese v. State , 768 So.2d 1057, 1060 (Fla. 2000). Reese's conviction and death sentence became final on March 5, 2001, when the United States Supreme Court denied his petition for writ of certiorari. Reese v. Florida , 532 U.S. 910, 121 S.Ct. 1239, 149 L.Ed.2d 147 (2001) ; see Fla. R. Crim. P. 3.851(d)(1)(B).

In 2009, we affirmed the denial of Reese's initial motion for postconviction relief. Reese v. State , 14 So.3d 913, 920 (Fla. 2009). In 2017, Reese filed a successive postconviction motion to vacate his death sentence under Hurst v. Florida (Hurst v. Florida ), --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). The circuit court entered an order summarily denying his claim. This appeal followed.

In Asay v. State , 210 So.3d 1, 22 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017), we held that Hurst and Hurst v. Florida do not apply retroactively to defendants whose death sentences were final before the United States Supreme Court rendered its decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). See Hitchcock v. State , 226 So.3d 216, 217 (Fla.) (concluding that Asay denies "retroactive application of Hurst v. Florida as interpreted in Hurst v. State to defendants whose death sentences were final when the Supreme Court decided Ring "), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Mosley v. State , 209 So.3d 1248, 1274 (Fla. 2016) ("[W]e have ... held in Asay v. State , that Hurst does not apply retroactively to capital defendants whose sentences were final before the United States Supreme Court issued its opinion in Ring ."). Therefore, because Reese's sentence became final prior to the issuance of Ring , he is not entitled to relief under Hurst and Hurst v. Florida .

Nor is Reese entitled to relief on his other claims. Reese first asserts that our retroactivity scheme runs afoul of the Fourteenth Amendment's Equal Protection Clause. However, in Lambrix v. State , 227 So.3d 112, 113 (Fla. 2017), we rejected the claim that our "decisions regarding the retroactivity of Hurst v. Florida and Hurst violate equal protection." Similarly without merit is Reese's contention that the retroactivity cutoff at Ring cannot withstand Eighth Amendment scrutiny because it results in arbitrary and capricious imposition of the death penalty. This "argument is not novel and has been previously rejected by this Court." Asay v. State , 224 So.3d 695, 703 (Fla. 2017). And Reese's allegation that his death sentence violates the Eighth Amendment under Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), is foreclosed by our recent decision in Reynolds v. State , 251 So.3d 811 (Fla.), cert. denied , --- U.S. ----, 139 S.Ct. 27, 202 L.Ed.2d 389 (2018). There, we held that "a Caldwell claim based on the rights announced in Hurst and Hurst v. Florida cannot be used to retroactively invalidate the jury instructions that were proper at the time under Florida law." Reynolds , 251 So.3d at 825 (citing Romano v. Oklahoma , 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) ). Accordingly, we affirm the circuit court's order denying in part and dismissing in part Reese's successive motion for postconviction relief.

It is so ordered.

LEWIS, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

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

QUINCE, J., recused.

PARIENTE, J., concurring in result.

I concur in result because, although I recognize that this Court's decisions regarding the retroactivity of Hurst are now final, I would grant a new penalty phase based on the jury's nonunanimous recommendation for death by a vote of eight to four. Per curiam op. at 1246. As I have continuously explained, this Court's precedent setting the United States Supreme Court's decision in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), as the cutoff for Hurst retroactivity results in unconstitutional arbitrariness.

See Hitchcock , 226 So.3d at 220-21 (Pariente, J., dissenting); Asay V , 210 So.3d at 32-36 (Pariente, J., concurring in part and dissenting in part). This case is one of those very specific instances.

Although this Court first affirmed Reese's conviction in 1997, his sentence of death did not become final until March 2001-thirteen months before Ring . Per curiam op. at 1246. In fact, in 1999, this Court remanded Reese's case for the second time to the trial court to allow the parties to present written and oral arguments before determining an appropriate sentence. Per curiam op. at 1246. Similar to the situation in Spencer v. State , 259 So.3d 712, 2018 WL 5839055 (Fla. Nov. 8, 2018), had "this Court ... reversed for a new penalty phase rather than remanding the case for 'reconsideration' of the aggravation and mitigation by the trial court," Reese would have likely been entitled to Hurst relief. Spencer , 43 Fla. L. Weekly at S559 (Pariente, J., dissenting); see Mosley , 209 So.3d at 1283.

Because Hurst should apply to Reese's case, I would grant Reese a new penalty phase.

      Reese raised two additional claims: (1) there is a possibility that new forensic brain scanning technologies will reveal additional mental health mitigation; and (2) there is a likelihood that he has an intellectual disability under Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). The circuit court dismissed both claims as unripe, and Reese did not appeal their dismissal.

      Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017) ; see Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

      Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017) ; Mosley v. State , 209 So.3d 1248 (Fla. 2016).

      Reese v. State , 768 So.2d 1057 (Fla. 2000) ; Reese v. State , 728 So.2d 727 (Fla. 1999) ; Reese v. State , 694 So.2d 678 (Fla. 1997).


text:
    Malik Jimer WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. SC16-2170
    Supreme Court of Florida.
    January 4, 2019
    Christopher E. Cosden, Fort Myers, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, C. Suzanne Bechard, Bureau Chief, and Elba Caridad Martin, Assistant Attorney General, Tampa, Florida, for Respondent
   QUINCE, J.

Malik Jimer Williams seeks review of the decision of the Second District Court of Appeal in Williams v. State , 203 So.3d 1020 (Fla. 2d DCA 2016), on the ground that it expressly and directly conflicts with decisions of this Court on questions of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the following reasons, we approve in part and quash in part the decision of the Second District and remand with instructions to remand to the trial court for proceedings consistent with this opinion.

FACTS

On the night of February 15, 2013, Williams and his cousin, Kito Felton, were riding Williams' bicycle home from a friend's house on 23rd Avenue in Tampa, Florida. Williams pedaled and Felton rode on the handlebars. Williams and Felton rode down 23rd Avenue, made a right on 34th Street, made a left on 22nd Avenue, made a right onto 37th Street and then made a left onto 21st Avenue heading towards 40th Street near where Williams resided with his brother at 46th and Sand Dune.

Also in the vicinity were Reginald Johnson and John Edward Brown, III. Johnson and Brown were leaving the residence of Rosa Santos on their "Big Ripper" bicycles to go to Johnson's residence on 35th Street to prepare for a birthday party. Johnson stated that he would typically take 26th Avenue to cross 50th Street to get to 49th Avenue and 26th Street, where he would turn until he got to 21st Avenue and continue on 21st until he got to 35th Street. Johnson and Brown were heading west on 21st and stopped on Arrow, which was before 40th, still heading towards Johnson's mother's house. After stopping at Arrow to speak to Venda Hayward, Johnson and Brown went back the way they came. Johnson testified that he and Brown were "thinking about going to Shells" and that they wanted to go to that particular store rather than one closer to his mother's house "[b]ecause Shell is like a neighborhood store."

Williams testified that he saw Johnson and Brown at the intersection of 21st and 40th heading the opposite direction. He did not previously know Brown, but did know Johnson from middle school. Williams testified that Johnson asked them if they were straight and that he replied he did not want any problems. Williams testified that he knew they were from Grant Park and that Grant Park and his own neighborhood, Jackson Heights, do not get along. Williams told Felton to prepare to fight and "we fitting to get our ass whooped." Williams then testified that he saw Johnson and Brown turn their bikes around and that, eventually, Johnson maneuvered to cut Williams off and that Brown was behind him with a gun in his right hand in his lap.

Williams testified that, at this point, he slammed his brakes and jumped off his bike in an attempt to either run away or fight and that his maneuver caused Brown to fall off of his bike. Johnson testified that, after turning and returning eastbound and passing Williams and Felton, all the boys except Johnson fell off their bikes. Williams testified that Brown flipped over his handle bars and dropped the gun in front of the bicycle, that both he and Brown reached for the gun, that he was able to pick it up before Brown, and then they fought over it. All the testimony agrees, and video evidence corroborates, that however three of the boys ended up off their bikes, Johnson dismounted, ran back, and joined the altercation. Both Williams and Johnson testified that Johnson took Felton near the Hartline gate while Williams and Brown stayed in a relatively static location.

During the course of the altercation, Williams shot Brown twice-once in the head and once in the chest. Williams then turned and shot Johnson, who received one gun shot in his hand. Williams and Felton then fled, Felton taking Brown's bicycle and Williams on his own bicycle.

Williams testified that when he arrived at his brother's, his brother took him to their mother's house who then encouraged Williams to talk to the police.

The jury found Williams guilty of first-degree premeditated murder for the death of Brown. The jury did not convict Williams of robbery but did find that he was guilty of the lesser included offense of theft.

On direct appeal to the Second District Court of Appeal, the district court first issued a per curiam affirmance (PCA). Then, after the court denied Williams' motion to stay mandate and motion for reconsideration, on its own motion the court withdrew the PCA and substituted a written opinion. The court dispensed with Williams' claims on appeal in one sentence: "[Williams] raises two issues in this appeal, neither of which require reversal." Williams , 203 So.3d at 1021. The district court then explained that Williams' sentence for first-degree murder did not violate Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and that his sentence for the attempted first-degree murder did not violate Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The district court therefore affirmed Williams' convictions and sentences.

DISCUSSION

In his first issue on appeal, Williams argues that the trial court erred in denying his motion for judgment of acquittal. The Second District did not discuss the merits of this issue but we nevertheless address it here.

We review the denial of a motion for judgment of acquittal de novo; however, all evidence and inferences therefrom are viewed in a light most favorable to the State. McDuffie v. State , 970 So.2d 312, 332 (Fla. 2007) ; Pagan v. State , 830 So.2d 792, 803 (Fla. 2002). A defendant who moves for a judgment of acquittal admits the facts in evidence and every conclusion favorable to the State that may be reasonably inferred from said evidence. "If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction." Pagan , 830 So.2d at 803.

In a case where a defendant alleges self-defense, the State must prove that the defendant did not act in self-defense beyond a reasonable doubt. See Cruz v. State , 189 So.3d 822, 825-26 (Fla. 4th DCA 2015) (quoting Brown v. State , 454 So.2d 596, 598 (Fla. 5th DCA 1984) ). A trial court must grant a judgment of acquittal when the State's case is legally insufficient to rebut a defendant's prima facie case establishing self-defense. Id. at 826 (citing Fowler v. State , 921 So.2d 708, 711-12 (Fla. 2d DCA 2006) ). However, a judgment of acquittal should be denied where a jury would reasonably reject the defendant's explanation of self-defense. Id. (citing Romero v. State , 901 So.2d 260, 265-66 (Fla. 4th DCA 2005) ). Any inconsistency between the evidence and defense theory must be resolved by the finder of fact. Orme v. State , 677 So.2d 258, 262 (Fla. 1996). But "[e]vidence that leaves room for two or more inferences of fact, at least one of which is consistent with the defendant's hypothesis of innocence, is not legally sufficient to make a case for the jury." Fowler v. State , 921 So.2d 708, 712 (Fla. 2d DCA 2006) (quoting Fowler v. State , 492 So.2d 1344, 1348 (Fla. 1st DCA 1986) ); see also Stieh v. State , 67 So.3d 275, 279 (Fla. 2d DCA 2011).

In order to establish a prima facie case of self-defense, a defendant must show that he (1) was attacked in a place where he had a right to be, (2) was not engaged in any unlawful activity, and (3) reasonably believed it was necessary to use force to prevent death or great bodily harm. See Leasure v. State , 105 So.3d 5, 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla. Stat. (2008) ). However, the jury is not required to accept the defendant's version of the facts and in fact "must consider the probability or improbability of the defendant's credibility in light of the circumstances established by other evidence." Leasure , 105 So.3d at 14 (citing Darty v. State , 161 So.2d 864, 872 (Fla. 2d DCA 1964) ; Teague v. State , 390 So.2d 405, 406-07 (Fla. 5th DCA 1980) ).

Below, Williams alleged that he acted in self-defense after Johnson and Brown followed him and Felton on 21st Avenue and appeared to be carrying a weapon. Williams stated that he knew he was about to be beaten and prepared himself to take the beating by getting off his bike. Because Brown lost control of the weapon when they all fell from their bikes, Williams alleges he was able to fight to get the weapon and use it in self-defense. The evidence found on the scene supports Williams' version of events.

Law enforcement discovered two unfired .40 caliber rounds at the scene which is consistent with Williams' testimony that he was unfamiliar with weapons and attempted to cock the gun before each time he fired. Law enforcement also found a cell phone, currency, a key ring, cigars, and condoms on Brown's person when they arrived on scene, which supports Williams' assertion that he had no intention of robbing the victim.

Because Williams presented a prima facie case of self-defense, it was necessary for the State to refute his claim beyond a reasonable doubt. The State's theory of the case was that Williams and Felton attempted to rob Brown and therefore could not claim self-defense because the altercation was a result of the robbery. To survive the judgment of acquittal, a reasonable jury would have to believe the testimony of surviving victim, Reginald Johnson, that he and Brown just happened to turn around and ride their bikes in the opposite direction, passing Williams and Felton, because they decided to double back and go to a convenience store. The jury would also have to accept Johnson's testimony that Felton told Brown to "give it up" meaning he was attempting to rob Brown of his bicycle and that either Felton or Williams pulled Brown off his bike, starting the altercation that resulted in Brown's death.

As to corroborating evidence, none of the eyewitnesses were able to corroborate either party's explanation of what led to the altercation. Symone Watts, who worked as a security guard at Hartline where the altercation took place, testified that she heard loud voices, which made her look up from her book. Then she saw someone hit the ground, get up quickly, and begin firing. Watts' version of events does not support either Williams' or Johnson's testimony. Williams never testified that he had fallen to the ground before getting the gun but it is possible that what she saw was Williams bending over to get the gun after it fell from Brown's possession. Her testimony likewise does not support Johnson's testimony because he stated that Brown was the only one who fell from his bike after being pulled off. Because both Williams and Johnson testified that only Brown fell to the ground, Watts' testimony would make Brown the shooter, which is erroneous. Further, Watts testified that she was unclear that night and even the day of the trial who was where within the altercation. She could only testify that one of the boys wore a light-colored shirt and the other boys wore dark-colored clothing.

Likewise, the video surveillance, which was played for the jury, is unclear enough that it could be interpreted to support either version of events. The surveillance videos show, and Johnson and Williams both testified, that Williams and Felton rode from left to right on the screen when they were overtaken by Johnson on his bike and caught up to by Brown. From there, all the parties agree, and the video confirms, that Brown, Williams, and Felton dismounted from their respective bicycles. Unfortunately, the video does not confirm how the boys came to dismount or who initiated that first contact. The video confirms that Johnson turned back after seeing the altercation begin.

Williams' self-defense theory was only applicable if the jury did not find that the altercation began because of a robbery attempt. Once the jury entered its verdict finding Williams guilty of the lesser included offense of theft, logic dictates that the jury did not believe that the altercation began because of the robbery attempt. Accordingly, the State failed to rebut Williams' theory of self-defense and the trial court improperly denied Williams' motion for a judgment of acquittal as to count one (first-degree premeditated murder) filed after the jury entered its verdict. However, viewing the evidence in a light most favorable to the State, the trial court did not err in denying the motion as to count five (attempted murder) because the evidence and testimony provided at trial demonstrated that Williams hesitated before turning to shoot Johnson. A reasonable jury could have concluded that the shot fired at Johnson was not fired in self-defense.

The second issue presented is whether Williams is entitled to resentencing pursuant to chapter 2014-220, Laws of Florida, and to resentencing pursuant to this Court's decision in Williams v. State , 186 So.3d 989 (Fla. 2016). The State concedes that the answer to both these inquiries is yes. Based on the State's concession, we end our inquiry here and remand with instructions to remand to the trial court for resentencing in accordance with Williams , 186 So.3d 989 and Thomas v. State , 40 Fla. L. Weekly S479, 2015 WL 5178605 at *1 (Fla. Sept. 4, 2015) (177 So.3d 1275) (table).

It is so ordered.

PARIENTE and LEWIS, JJ., concur.

LABARGA, J., concurs in result.

CANADY, C.J., concurs in result in part and dissents in part with an opinion, in which POLSTON and LAWSON, JJ., concur.

CANADY, C.J., concurring in result in part, dissenting in part.

Based on the State's concession of error, I agree that the decision of the Second District Court of Appeal should be quashed to the extent that it affirmed Williams's sentences and that the case should be remanded for resentencing in conformance with chapter 2014-220, Laws of Florida. I do not disagree with the conclusion that the Second District's decision to affirm Williams's attempted murder conviction was correct, but I believe that it is unnecessary for this Court to address the issue relating to this conviction. I dissent, however, from the decision to quash that portion of the Second District's decision that affirmed the first-degree premeditated murder conviction.

POLSTON and LAWSON, JJ., concur.

      This is unlike a review of the sufficiency of the evidence to sustain a conviction where an appellate court must determine whether, when reviewing the facts in the light most favorable to the State, there is competent, substantial evidence to sustain the conviction on appeal. Williams did not contest the sufficiency of the evidence to sustain his conviction for first-degree premeditated murder and it is therefore not before this Court for review. Instead, this Court is tasked with determining merely whether the question was appropriately presented to the jury for consideration notwithstanding the subsequent verdict inconsistent with the State's rebuttal to Williams' self-defense theory.

      No firearm was recovered at the scene. However, the ballistics recovered from the victims were the same caliber as the fired and unfired rounds recovered at the scene.


text:
    William Lee THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. SC18-1435
    Supreme Court of Florida.
    January 7, 2019
    Neal Dupree, Capital Collateral Regional Counsel, Marie-Louise Samuels Parmer, Special Assistant Capital Collateral Regional Counsel, and Brittney Nicole Lacy, Staff Attorney, Southern Region, Fort Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Melissa Roca Shaw, Assistant Attorney General, Miami, Florida, for Appellee
   PER CURIAM.

We have for review William Lee Thompson's appeal of the postconviction court's order denying Thompson's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Thompson's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). Thompson responded to this Court's order to show cause arguing why Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), should not be dispositive in this case.

After reviewing Thompson's response to the order to show cause, as well as the State's arguments in reply, we conclude that Thompson is not entitled to relief. Thompson was convicted of first-degree murder and sentenced to death following a jury's recommendation for death by a vote of seven to five. Thompson v. State , 619 So.2d 261, 264 (Fla. 1993). Thompson's sentence of death became final in 1993. Thompson v. Florida , 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993). Thus, Hurst does not apply retroactively to Thompson's sentence of death. See Hitchcock , 226 So.3d at 217 ; see also Foster v. State , No. SC18-860, 258 So.3d 1248, 1250-53, 2018 WL 6379348, at *2-4 (Fla. Dec. 6, 2018) (explaining why the "elements of 'capital first-degree murder' " argument derived from Hurst and the legislation implementing Hurst "has no merit"). Accordingly, we affirm the postconviction court's order denying relief.

It is so ordered.

QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., and PARIENTE and LEWIS, JJ., concur in result.