Michael Duane Zack, III v. State of Florida ( 2018 )

Supreme Court of Florida
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No. SC18-243
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MICHAEL DUANE ZACK, III,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
October 4, 2018
PER CURIAM.
This case is before the Court on appeal from an order denying a motion to
vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. This
Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Michael Duane Zack, III, was convicted for the 1996 sexual assault and
murder of Ravonne Smith. We previously described the facts in Zack v. State, 753
So. 2d 9, 13-14 (Fla. 2000). We affirmed Zack’s convictions and sentence. Id. at
26. His sentence became final on October 2, 2000, when the United States
Supreme Court denied certiorari review. Zack v. Florida, 531 U.S. 858 (2000).
We affirmed the denial of Zack’s initial motion for postconviction relief and
his petition for a writ of habeas corpus in Zack v. State, 911 So. 2d 1190 (Fla.
2005). Zack raised a claim pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), in
his successive motion for postconviction relief. The circuit court denied the claim
without a hearing. This Court, relying on Cherry v. State, 781 So. 2d 1040 (Fla.
2000), held that Zack failed to demonstrate that his IQ was below 70. Zack v.
State, 911 So. 2d 1190, 1202 (Fla. 2005). Additionally, we denied Zack’s second
petition for a writ of habeas corpus based on Crawford v. Washington, 541 U.S. 36
(2004). Zack then filed a second successive postconviction motion raising claims
pursuant to Hall v. Florida, 134 S. Ct. 1986 (2014). We affirmed the circuit
court’s denial of that motion. Zack v. State, 228 So. 3d 41 (Fla. 2017). We also
denied Zack’s petition for a writ of habeas corpus claiming relief pursuant to Hurst
v. Florida, 136 S. Ct. 616 (2016). Zack, 228 So. 3d at 41.
Zack filed his third successive motion for postconviction relief on January
11, 2017, raising five claims. The circuit court summarily denied the motion,
finding:
The Supreme Court of Florida has held that Hurst v. Florida
and Hurst v. State do not apply retroactively to any death sentence
that became final prior to the issuance of the United States Supreme
Court’s June 24, 2002, opinion of Ring v. Arizona, 536 U.S. 584
(2002). See Asay v. State, 210 So. 3d 1 (Fla. 2016); Mosley v. State,
209 So. 3d 1248 (Fla. 2016). It is uncontested that Defendant’s
sentence was final before Ring was decided.
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. . . Consequently, the Court concludes that Defendant is not
entitled to relief as to any of his present claims as each depends on a
retroactive application of the Hurst decisions. Additionally, the
Florida Supreme Court has recently addressed Defendant’s fifth claim
as it pertains to a jury finding of intellectual disability, and found it to
be without merit.
(some citations omitted). Zack now appeals.
In a motion governed by rule 3.851, where a defendant makes a facially
sufficient claim that requires a factual determination, the circuit court must hold an
evidentiary hearing. See Mann v. State, 112 So. 3d 1158, 1161 (Fla. 2013).
Nevertheless, “claims may be summarily denied when they are legally insufficient,
should have been brought on direct appeal, or are positively refuted by the record.”
Id. (quoting Marek v. State, 8 So. 3d 1123, 1127 (Fla. 2009)). “Because a
postconviction court’s decision whether to grant an evidentiary hearing on a rule
3.851 motion is ultimately based on written materials before the court, its ruling is
tantamount to a pure question of law, subject to de novo review.” Marek v. State,
8 So. 3d 1123, 1127 (Fla. 2009).
Here, as a matter of law, Zack is not entitled to relief. See Hitchcock v.
State, 226 So. 3d 216, 217 (Fla. 2017); Oats v. Jones, 220 So. 3d 1127 (Fla. 2017);
Asay v. State, 224 So. 3d 695, 703 (Fla. 2017); Asay v. State, 210 So. 3d 1, 22 (Fla.
2016). We have previously addressed and rejected each of the claims presented.
Zack has not provided a compelling argument for this Court to reconsider our
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previous rulings. Accordingly, we affirm the circuit court’s order summarily
denying Zack’s claims.
It is so ordered.
PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ.,
concur.
CANADY, C.J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Escambia County,
Linda L. Nobles, Judge - Case No. 171996CF002517XXXAXX
Robert S. Friedman, Capital Collateral Regional Counsel, Dawn B. Macready and
Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Senior Assistant
Attorney General, Tallahassee, Florida,
for Appellee
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