Opinion
SC21-1205
04-08-2022
DAVID BYRON RUSS Appellant(s) v. STATE OF FLORIDA Appellee(s)
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
Lower Tribunal No(s).: 592007CF002377A000XX
Appellant David Russ, a prisoner under sentence of death, appeals the circuit court's order summarily dismissing his instant motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
We previously affirmed Appellant's convictions and sentences on direct appeal. Russ v. State, 73 So.3d 178, 200 (Fla. 2011). We also previously affirmed Appellant's waiver of his postconviction proceedings. Russ v. State (Russ II), 107 So.3d 406 (Fla. 2012) (table). Appellant filed his instant postconviction relief motion on December 30, 2020. The circuit court, after considering the parties' arguments and briefing, summarily dismissed Appellant's motion in a written order. This appeal followed, with Appellant raising five claims.
In his first claim, Appellant argues that no reasonable assessment was ever made by trial counsel or the circuit court regarding his competency before he was allowed to waive his rights to a guilt phase and penalty phase trial by jury and the presentation of mitigation evidence. In their briefing, both parties establish that the issue raised by Appellant in his third claim (alleged incompetence at the time Appellant made his waiver of postconviction proceedings) arises out of the same facts as the first claim. Our analysis of Appellant's first claim therefore also applies to his third claim. The trial court properly summarily dismissed these claims because Appellant failed to meet any of the time limitation exceptions contained in Florida Rule of Criminal Procedure 3.851(d)(2), making his motion procedurally barred. Fla. R. Crim. P. 3.851(e)(2). We find no error in the circuit court's summary dismissal of Appellant's first and third claims.
In his second claim on appeal, Appellant argues that he was rendered ineffective assistance of counsel because no reasonable assessment was made by trial counsel regarding his competency before he waived his rights to a guilt and penalty phase trials and the presentation of mitigation evidence. We previously affirmed Appellant's waiver of his postconviction proceedings and counsel. See Russ II. Under similar circumstances, we previously affirmed a trial court's summary dismissal of a postconviction motion as untimely when the prisoner validly waived postconviction proceedings. See James v. State, 323 So.3d 158, 161 (Fla. 2021). We find no error in the circuit court's summary dismissal of Appellant's untimely second claim.
In his fifth claim on appeal, Appellant argues that his death sentence violates Hurst v. Florida, 577 U.S. 92 (2016). As Appellant acknowledges in his briefing, a valid waiver of a penalty phase jury and postconviction relief vitiates any entitlement to Hurst relief under Florida law. State v. Silvia, 235 So.3d 349, 351-52 (Fla. 2018). We find no error in the trial court's summary dismissal of Appellant's fifth claim.
Appellant's fourth claim on appeal is a cumulative error claim. Because we find no error in the circuit court's summary dismissal of Appellant's other claims, there is no cumulative error for us to analyze here. "[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail." Griffin v. State, 866 So.2d 1, 22 (Fla. 2003).
For these reasons, we affirm the circuit court's order summarily dismissing Appellant David Russ's instant motion for postconviction relief.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.
HON. MARLENE M. ALVA, JUDGE
HON. LISA DAVIDSON, JUDGE