PER CURIAM.
We have for review James Milton Daileys appeal of the circuit courts order denying Daileys motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Daileys 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). Dailey responded to this Courts 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 Daileys response to the order to show cause, as well as the States arguments in reply, we conclude that Dailey is not entitled to relief. Dailey was sentenced to death following a jurys unanimous recommendation for death. Dailey v. State , 594 So.2d 254, 256 (Fla. 1991). On appeal, this Court reversed Daileys death sentence and remand[ed] for resentencing before the trial judge. Id. at 259. On remand, the trial court again sentenced Dailey to death, and Daileys sentence of death became final in 1996. Dailey v. State , 659 So.2d 246, 247 (Fla. 1995), cert. denied , 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 763 (1996). Thus, Hurst does not apply retroactively to Daileys sentence of death. See Hitchcock , 226 So.3d at 217. Accordingly, we affirm the denial of Daileys motion.
The Court having carefully considered all arguments raised by Dailey, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.
LABARGA, C.J., and LEWIS, POLSTON, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
CANADY, J., concurs in result.
QUINCE, J., recused.
PARIENTE, J., concurring in result.
For reasons I have explained numerous times, despite this Courts precedent, I would apply Hurst retroactively to Daileys sentence of death. See Hitchcock v. State , 226 So.3d 216, 220-23 (Fla.) (Pariente, J., dissenting), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So. 3d 1, 32-37 (Fla. 2016) (Pariente, J., concurring in part and dissenting in part), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017). Applying Hurst to Daileys case, although the jury unanimously recommended death, because this Court struck two aggravators on direct appeal, the Hurst error in Daileys case was not harmless beyond a reasonable doubt. Dailey v. State , 594 So.2d 254, 259 (Fla. 1991). In fact, relying on its arbitrary retroactivity framework, this Court turns a blind eye to the quintessential Hurst error-a defendant, without waiver, sentenced to death by a trial judge alone without a jurys reliable, unanimous recommendation for death. See Dailey v. State , 659 So.2d 246, 247 (Fla. 1995), cert. denied , 516 U.S. 1095, 116 S.Ct. 819, 133 L.Ed.2d 763 (1996) ; see also Davis v. State , 207 So.3d 142, 173-75 (Fla 2016) ; Hurst , 202 So.3d at 44.
In 1991, after Daileys penalty phase before a jury, this Court determined that the trial court made several errors in sentencing Dailey to death. See generally Dailey , 594 So.2d 254. In pertinent part, this Court determined that the evidence did not establish two aggravating factors that the trial court considered: (1) that the murder was committed to prevent a lawful arrest, and (2) that the murder was committed in a cold, calculated, and premeditated manner. Id. at 259. Further, this Court determined that the trial court erred in recogniz[ing] the presence of numerous mitigating circumstances, but then accord[ing] them no weight at all. Id. Accordingly, this Court reversed Daileys sentence of death and remanded for resentencing before the trial judge. Id. On remand, the trial judge, alone, sentenced Dailey to death. Dailey , 659 So.2d at 247.
Of course, this Courts opinion in Hurst made clear that the jury is critical to the constitutional imposition of the death penalty. See 202 So.3d at 44, 60. Further, I explained in Middleton v. State , 42 Fla. L. Weekly S637, 2017 WL 2374697 (Fla. June 1, 2017), how stricken aggravating factors gravely undermine the critical reliability of a jurys unanimous recommendation for death in the context of a Hurst harmless error analysis. Id. at *1-2 (Pariente, J., dissenting).
In this case, it is clear that Daileys penalty phase jury considered invalid aggravating factors in recommending a sentence of death. Therefore, if Hurst applied to Daileys case, this Court could not rely on the jurys unanimous recommendation for death to determine that the Hurst error was harmless beyond a reasonable doubt. Even more, when this Court remanded for resentencing, Daileys sentence of death was reviewed by a single trial judge alone. Thus, as a result of this Courts arbitrary framework for determining the retroactivity of Hurst , Dailey remains under an unconstitutionally unreliable sentence of death.
In affirming Daileys death sentence after resentencing, we affirmed the death sentence, rejecting Daileys arguments that his penalty phase jurys recommendation of death was invalid and he was entitled to an entire new penalty phase trial before a new jury. Dailey , 659 So.2d at 247-48.
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).