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Konstantinos X. FOTOPOULOS, Appellant, v. STATE of Florida, Appellee.

Florida Supreme Court2018-01-29No. No. SC17–971
237 So. 3d 911

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Opinion

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PER CURIAM.

We have for review Konstantinos X. Fotopouloss appeal of the circuit courts order denying Fotopouloss motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Fotopouloss motion sought relief pursuant to the United States Supreme Courts 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). This Court stayed Fotopouloss appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Fotopoulos responded to this Courts order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Fotopouloss response to the order to show cause, as well as the States arguments in reply, we conclude that Fotopoulos is not entitled to relief. Fotopouloss jury found him guilty of two counts of first-degree murder and recommended a sentence of death for both murders by a vote of eight to four. Fotopoulos v. State, 608 So.2d 784, 787 (Fla. 1992). Following the jurys recommendations, the trial court sentenced Fotopoulos to death on both counts. Id. Fotopouloss sentences of death became final in 1993. Fotopoulos v. Florida, 508 U.S. 924, 113 S.Ct. 2377, 124 L.Ed.2d 282 (1993). Thus, Hurst does not apply retroactively to Fotopouloss sentences of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Fotopouloss motion.

The Court having carefully considered all arguments raised by Fotopoulos, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

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

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

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Courts opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.

Although our decision affirming Fotopouloss death sentences does not specify the number of Fotopouloss jurors who voted to recommend death, he represents in his response to this Courts order to show cause that the jury recommended death for both murders by a vote of eight to four. Resp. to Order to Show Cause, Fotopoulos v. State, No. SC17-971, 2017 WL 4791738, at 2 (Fla. Oct. 17, 2017).