Mark A. Twilegar v. State of Florida

Supreme Court of Florida
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No. SC17-839
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MARK A. TWILEGAR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[November 2, 2017]
PER CURIAM.
Mark A. Twilegar, a prisoner under sentence of death, appeals the circuit
court’s order denying his successive motion for postconviction relief filed under
Florida Rule of Criminal Procedure 3.851 seeking relief from his death sentence
pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d
40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). We have jurisdiction. See art.
V, § 3(b)(1), Fla. Const.
As the circuit court correctly recognized, the Hurst decisions do not apply to
defendants like Twilegar who waived a penalty phase jury. See Mullens v. State,
197 So. 3d 16, 38-40 (Fla. 2016), cert. denied, 137 S. Ct. 672 (2017); see also
Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016). Although Twilegar urges this
Court to revisit, in light of the Hurst decisions, its prior holding in Twilegar’s
direct appeal that his waiver was knowing, intelligent, and voluntary, see Twilegar
v. State, 42 So. 3d 177, 204 (Fla. 2010), cert. denied, 562 U.S. 1225 (2011), that
argument is without merit. See Mullens, 197 So. 3d at 39-40 (explaining that a
defendant “cannot subvert the right to jury factfinding by waiving that right and
then suggesting that a subsequent development in the law has fundamentally
undermined his sentence”). Accordingly, we affirm the circuit court’s denial.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Lee County,
Ramiro Mañalich, Judge - Case No. 362003CF002151000ACH
Neal Dupree, Capital Collateral Regional Counsel, Suzanne Myers Keffer, Chief
Assistant, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel,
Southern Region, Fort Lauderdale, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Timothy A.
Freeland, Senior Assistant Attorney General, Tampa, Florida,
for Appellee
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