James Ernest Hitchcock, Appellant v. State of Florida, Appellee — Pariente, J., Dissenting

Summary

Justice Pariente dissented from denying Hitchcock post-conviction relief, reasoning that the constitutional requirement of a unanimous jury recommendation for death should apply retroactively to his sentence under the Eighth Amendment and that denying relief created arbitrary and fundamentally unfair distinctions among similarly situated capital defendants. She further concluded that the 10-2 jury recommendation, considered alongside Hitchcock's substantial mitigating evidence and repeated resentencing proceedings, rendered the constitutional error not harmless beyond a reasonable doubt. Justice Lewis, concurring in the result, agreed that Hitchcock was not entitled to relief because he failed to preserve the relevant challenge, but advocated a preservation-based approach that would afford relief to defendants who had preserved the substance of the constitutional issue before the later precedent was decided.