Supreme Court of Florida ____________
No. SC2025-1642 ____________
BRYAN FREDRICK JENNINGS, Petitioner,
vs.
STATE OF FLORIDA, Respondent.
____________
No. SC2025-1686 ____________
BRYAN FREDRICK JENNINGS, Appellant,
STATE OF FLORIDA, Appellee.
No. SC2025-1687 ____________
vs. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
November 6, 2025
PER CURIAM.
Bryan Fredrick Jennings was sentenced to death for the 1979
murder of six-year-old Rebecca Kunash. On October 10, 2025,
Governor Ron DeSantis signed a death warrant scheduling
Jennings’s execution for November 13, 2025. Jennings
unsuccessfully sought relief in the circuit court and now appeals.
We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm.
We deny Jennings’s concurrent motion to vacate the death warrant
or stay the execution. We deny Jennings’s petition seeking review
of the nonfinal order from the lower court denying his motion to
vacate the death warrant and stay the execution. Finally, we deny
his habeas petition, see id. § 3(b)(9).
I
We have retold the facts that led to Jennings’s death sentence
time and again. See Jennings v. State (Jennings I), 413 So. 2d 24,
25 (Fla. 1982); Jennings v. State (Jennings II), 453 So. 2d 1109,
1111-12 (Fla. 1984); Jennings v. State (Jennings IV), 512 So. 2d
-2- 169, 175-76 (Fla. 1987); Jennings v. State (Jennings V), 583 So. 2d
316, 317 (Fla. 1991); Jennings v. State (Jennings VII), 782 So. 2d
853, 862 (Fla. 2001); Jennings v. State (Jennings X), 192 So. 3d 38
(Fla. 2015) (table); Jennings v. State (Jennings XI), 265 So. 3d 460,
461 (Fla. 2018). We recount them here briefly to give context to our
discussion.
In the early morning hours of May 11, 1979, Rebecca Kunash
was asleep in her family home. Jennings, then twenty years old
and on leave from the Marine Corps, dislodged the screen from her
window and climbed into her bedroom. He covered her mouth, took
her to his car, and drove to an area near the Girard Street Canal on
Merritt Island. There, he raped Rebecca, swung her by her legs to
the ground with such force that she fractured her skull, and
drowned her while she was still alive. Her parents, who were asleep
in another part of the house when Jennings broke in, woke up to
find Rebecca missing. Later that afternoon, Rebecca’s body was
found in the water. She suffered extensive damage to her brain and
bruising and lacerations to her vaginal area. Rebecca was six years
old.
-3- Later that day, Jennings was arrested on a traffic warrant and
taken to the Brevard County jail. Investigation revealed that an
unknown man matching Jennings’s description had been seen in
the Kunash family’s neighborhood around the time of Rebecca’s
abduction, that Jennings’s shoes matched footprints found at the
family’s home, that his latent fingerprints were found on Rebecca’s
windowsill, and that he had returned home on the night of the
murder with his clothes and hair wet.
Jennings was tried and convicted for these crimes three times.
Twice we reversed. See Jennings I, 413 So. 2d 24 (reversed and
remanded due to defense counsel’s failure to cross-examine a
critical witness); Jennings v. State (Jennings III), 473 So. 2d 204
(Fla. 1985) (reversed and remanded in light of the United States
Supreme Court’s decisions in Edwards v. Arizona, 451 U.S. 477
(1981), Shea v. Louisiana, 470 U.S. 51 (1985), and Smith v. Illinois,
469 U.S. 91 (1984)); Jennings IV, 512 So. 2d 169 (conviction and
death sentence affirmed).
In 1986, after his third and final trial, Jennings was convicted
of first-degree murder, two counts of first-degree felony murder,
kidnapping with intent to commit sexual battery, sexual battery,
-4- and burglary. Jennings IV, 512 So. 2d at 171. After the penalty
phase, the jury recommended he be sentenced to death by a vote of
11-1. The trial court agreed and imposed the death sentence on the
charge of first-degree murder. In doing so, the judge found the
following aggravating factors: (1) the murder was committed while
Jennings was engaged in the commission of, or flight after
committing, the crimes of burglary, kidnapping, and rape; (2) the
murder was especially heinous, atrocious, or cruel; and (3) the
murder was committed in a cold, calculated, and premeditated
manner without any pretense of moral or legal justification. Id. at
176. We held that the trial court committed no error in finding the
absence of any statutory or nonstatutory mitigating circumstances.
Id. On direct appeal, this Court affirmed Jennings’s conviction and
death sentence. 1 Id. The conviction and sentence became final
1. Jennings raised the following issues on direct appeal: (1) application of the “fruit of the poisonous tree” doctrine required the suppression of certain photographs, showing abrasions on Jennings’s penis, taken as a result of an illegally obtained confession; (2) sworn motions containing prior inconsistent statements of a State witness were admissible and the court erred in sustaining the State’s objection to their introduction; (3) statement by the victim’s father that the victim was going to be narrator at her school play on the day she was killed was not relevant; (4) the trial court failed to suppress items seized as a
-5- when the United States Supreme Court denied his petition for writ
of certiorari on February 22, 1988. Jennings v. Florida (Jennings
XII), 484 U.S. 1079 (1988). Over the next four decades, Jennings
unsuccessfully sought postconviction relief in both state and federal
court.
result of a warrantless arrest; (5) photographs of the victim should not have been admitted and were so inflammatory that their potential prejudice outweighed their slight probative value; (6) a prosecutor’s comment during voir dire alleged to refer to the failure of Jennings to testify; (7) a letter written by Jennings was improperly admitted; (8) failure to modify the standard jury instructions; (9) the trial court impermissibly replaced a guilt phase juror for the penalty phase after the juror explained, after already being sworn, that she had not been completely candid about her feelings concerning the death penalty; (10) the trial court improperly overruled an objection to the prosecutor’s argument during the penalty phase; (11) knowledge by three jurors between the guilt and penalty phases that Jennings had been tried before for the same crimes deprived him of his constitutional right to a fair trial on the issue of his penalty; (12) an alternate juror leaving the courtroom at the same time as the jury panel when it retired to deliberate for the penalty phase tainted the jury to the extent that he was denied a fair trial; (13) the trial court’s refusal to give Jennings’s requested jury instruction at the penalty phase; (14) the trial judge erred in failing to certify Jennings as a mentally disordered sex offender; (15) the death penalty was imposed upon inappropriate aggravating circumstances and certain mitigating circumstances should have been found; and (16) the Florida Capital Sentencing Statute is unconstitutional on its face and as applied.
-6- In state court, Jennings filed five postconviction motions for
relief under Florida Rules of Criminal Procedure 3.850 and 3.851.
See Jennings V, 583 So. 2d 316 (affirming the circuit court’s denial
of Jennings’s initial rule 3.850 motion but granting Jennings’s
request for certain portions of the State’s files as public records
under chapter 119, Florida Statutes (1989)); Jennings VII, 782 So.
2d 853 (affirming the circuit court’s denial of Jennings’s remanded
initial rule 3.850 postconviction motion); Jennings v. State
(Jennings VIII), 36 So. 3d 84 (Fla. 2010) (table) (affirming the circuit
court’s denial of Jennings’s first successive rule 3.851 motion for
postconviction relief); Jennings v. State (Jennings IX), 91 So. 3d 132
(Fla. 2012) (table) (affirming the circuit court’s denial of Jennings’s
second successive rule 3.851 motion for postconviction relief but
allowing thirty days to file a successive postconviction motion
raising specific claims); Jennings X, 192 So. 3d 38 (affirming the
circuit court’s denial of Jennings’s third successive rule 3.851
motion for postconviction relief); Jennings XI, 265 So. 3d 460
(holding that Hurst 2 did not apply retroactively to Jennings’s
2. Hurst v. State, 202 So. 3d 40 (Fla. 2016) (holding that before a trial court may consider imposing the death penalty, all
-7- sentence of death and affirming the circuit court’s denial of
Jennings’s fourth successive rule 3.851 motion for postconviction
relief).
Additionally, Jennings sought state habeas relief. See
Jennings V, 583 So. 2d 316 (denying Jennings’s petition for a writ of
habeas corpus). And related to this Court’s remand in Jennings V,
Jennings appealed the circuit court’s order for the disclosure of
some, but not all, of the public records Jennings requested; this
Court approved that order. Jennings v. State (Jennings VI), 626 So.
2d 1324 (Fla. 1993) (relying on Parole Commission v. Lockett, 620
So. 2d 153 (Fla. 1993), to hold that the Parole Commission was not
required to release clemency files pursuant to the Public Records
Act because executive clemency power is independent of both the
legislature and the judiciary).
In federal court, Jennings first petitioned for a writ of certiorari
following his initial unsuccessful rule 3.850 postconviction motion.
critical findings must be found unanimously by the jury), receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020) (holding only the existence of an aggravating circumstance qualifies as an element, and thus requires a unanimous jury finding); see Hurst v. Florida, 577 U.S. 92 (2016).
-8- In 2002, the United States Supreme Court denied certiorari review.
Jennings v. Florida (Jennings XIII), 534 U.S. 1096 (2002). Later, he
petitioned for a writ of habeas corpus in the United States District
Court for the Northern District of Florida pursuant to 28 U.S.C.
§ 2254. The Northern District denied the petition and the United
States Court of Appeals for the Eleventh Circuit affirmed the denial
of habeas relief. Jennings v. Crosby (Jennings XIV), 392 F. Supp. 2d
1312 (N.D. Fla. 2005) (denying relief on sixteen claims raised in
Jennings’s first federal habeas petition); Jennings v. McDonough
(Jennings XV), 490 F.3d 1230 (11th Cir. 2007) (affirming the district
court’s denial of habeas relief). In 2008, the United States Supreme
Court again denied certiorari review, this time relating to the
Eleventh Circuit’s decision in Jennings XIV. Jennings v. McNeil
(Jennings XVI), 552 U.S. 1298 (2008). After Jennings’s second
successive postconviction motion was denied (Jennings IX), the
United States Supreme Court again denied certiorari review.
Jennings v. Florida (Jennings XVII), 568 U.S. 1100 (2013). In 2016,
following his third successive rule 3.851 motion (Jennings X), the
Jennings v. Florida (Jennings XVIII), 580 U.S. 857 (2016). In 2019,
-9- after Jennings’s unsuccessful fourth successive rule 3.851 motion
(Jennings XI), the United States Supreme Court denied certiorari
review. Jennings v. Florida (Jennings XIX), 587 U.S. 990 (2019).
Jennings filed a second federal habeas petition under 28 U.S.C. §
2254. The Northern District dismissed his successive petition. The
Eleventh Circuit affirmed the district court’s dismissal. Jennings v.
Sec’y, Fla. Dep’t of Corr. (Jennings XX), 108 F.4th 1299 (11th Cir.
2024). On March 31, 2025, the United States Supreme Court
denied Jennings’s petition for a writ of certiorari related to that
successive federal habeas petition. Jennings v. Dixon (Jennings
XXI), 145 S. Ct. 1472 (2025).
Governor Ron DeSantis signed Jennings’s death warrant on
October 10, 2025, scheduling Jennings’s execution for
November 13, 2025. That same day, the State moved to have
Capital Collateral Regional Counsel—Middle Region (CCRC-M)
appointed as postconviction counsel for Jennings, noting that he
required state collateral counsel during the warrant proceedings.
On October 12, 2025, CCRC-M filed a limited notice of appearance
alongside Jennings’s motion to vacate the death warrant or
alternatively to stay the warrant proceedings. On October 13, 2025,
- 10 - the Circuit Court for the Eighteenth Judicial Circuit Court, in and
for Brevard County, appointed CCRC-M as postconviction counsel,
overruling CCRC-M’s request to be appointed in a limited capacity.
On October 16, 2025, the circuit court entered an order denying
Jennings’s motion to vacate the death warrant or alternatively to
stay the warrant proceedings. On October 18, 2025, Jennings
petitioned this Court to review the circuit court’s nonfinal order
denying his motion to vacate the warrant or stay the execution
proceedings.
On October 21, 2025, Jennings filed his fifth successive
motion for postconviction relief. He raised three claims: (1) the
determination that executive clemency is not appropriate based on
Jennings’s clemency denial in 1989 violates his rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution and the corresponding provisions in the Florida
Constitution; (2) the post-warrant appointment of CCRC-M and
failure to stay the proceedings render the warrant proceedings
invalid and in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments and the corresponding provisions of the Florida
Constitution; and (3) Florida’s capital sentencing scheme violates
- 11 - the Eighth and Fourteenth Amendments because it lacks essential
safeguards against arbitrary and capricious imposition of the death
penalty. The circuit court denied relief on all claims on October 28,
2025. The circuit court also denied Jennings’s request to stay the
execution.
Jennings now appeals the denial of his postconviction motion,
raising three arguments. He also moves for a stay of execution and
petitions for a writ of habeas corpus.
II
We have consistently said:
Summary denial of a successive postconviction motion is appropriate if the motion, files, and records in the case conclusively show that the movant is entitled to no relief. We review the circuit court’s decision to summarily deny a successive rule 3.851 motion de novo, accepting the movant’s factual allegations as true to the extent they are not refuted by the record, and affirming the ruling if the record conclusively shows that the movant is entitled to no relief.
Zakrzewski v. State, 415 So. 3d 203, 208 (Fla.) (quoting Tanzi v.
State, 407 So. 3d 385, 390 (Fla. 2025)), cert. denied, No. 25-5194,
2025 WL 2155601 (U.S. July 30, 2025). Applying this standard, we
affirm the circuit court’s summary denial of Jennings’s fifth
successive postconviction motion.
- 12 - A
Jennings first claims that his executive clemency
determination violates his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution and the
corresponding provisions of the Florida Constitution because his
appeal for clemency was denied in 1989—thirty-six years ago.
This claim is untimely and procedurally barred. “Claims
raised pursuant to rule 3.851 must meet either the timeliness
requirements provided in section (d)(1) or the exceptions provided in
section (d)(2).” Ferguson v. State, 101 So. 3d 362, 366 (Fla. 2012)
(rejecting defendant’s clemency-related claim as untimely when he
could have raised it earlier). Jennings does neither. Instead,
Jennings raises this claim for the first time thirty-six years after his
clemency determination and thirty-seven years after his conviction
and sentence became final in 1988. Also, in 2016, the State filed its
notice of finality with the Clerk of this Court pursuant to rule
3.851(j), acknowledging that Jennings had completed his direct
appeal, initial postconviction proceeding in state court, and habeas
corpus proceeding and subsequent appeal in federal court. See
Attorney General Notification to Clerk of the Florida Supreme Court,
- 13 - Jennings v. State, No. SC1960-68835 (Fla. Oct. 14, 2016). So “in
addition to the thirty-[seven] years of notice since the imposition of
his death sentence[], [Jennings] has been on notice for nearly [nine]
years that he is ‘warrant-eligible,’ meaning ‘the [G]overnor could
sign a warrant for his execution.’ ” Jones v. State, No. SC2025-
1422, 2025 WL 2717027, at *4 (Fla. Sept. 24, 2025) (last alteration
in original) (quoting Silvia v. State, 228 So. 3d 1144, 1146 (Fla.
2013)), cert. denied, No. 25-5745, 2025 WL 2775490 (U.S. Sept. 30,
2025).
Jennings has not demonstrated that any exception excuses
his untimeliness under rule 3.851(d)(2). He asserts that either
there are new facts which were unknowable before now or that he
has good cause for failing to assert this claim in a prior motion.
Both are false. The plethora of supposedly new facts on which he
relies are either public knowledge or were known to him since 1989.
Also, he has no good cause for failing to raise this claim earlier
because he acknowledges in his brief that he “could have feasibly
reapplied for clemency seven (7) times,” but he did not. 3 For these
3. To the extent that Jennings is claiming that his clemency counsel was ineffective, the circuit court correctly found that
- 14 - same reasons, Jennings’s clemency claim is also procedurally
barred under rule 3.851(e)(2).
In any event, this claim is meritless. On many occasions, this
Court has rejected similar challenges to Florida’s clemency process.
The Florida Constitution vests the power of clemency in the
executive branch. See art. IV, § 8(a), Fla. Const. We repeat that
“[t]he clemency process in Florida derives solely from the Florida
Constitution and we have recognized that the people of the State of
Florida have vested ‘sole, unrestricted, unlimited discretion
exclusively in the executive in exercising this act of grace.’ ”
Zakrzewski, 415 So. 3d at 211 (quoting Carroll v. State, 114 So. 3d
883, 888 (Fla. 2013)).
Moreover, “[n]o specific procedures are mandated in clemency
proceedings.” Id. And “[i]n Ohio Adult Parole Authority v. Woodard,
523 U.S. 272 (1998), five justices of the United States Supreme
Jennings has no constitutional right to raise such a claim. See Rogers v. State, 409 So. 3d 1257, 1264 (Fla.) (“[Defendant’s claims] are claims of ineffective assistance of postconviction counsel, to which he acknowledges he has no constitutional right in Florida.” (citing Zack v. State, 911 So. 2d 1190, 1203 (Fla. 2005))), cert. denied, 145 S. Ct. 2695 (2025).
- 15 - Court concluded that some minimal procedural due process
requirements should apply to clemency proceedings. But none of
the opinions in that case required any specific procedures or
criteria to guide the executive’s signing of warrants for death-
sentenced inmates.” Marek v. State, 14 So. 3d 985, 998 (Fla. 2009).
Thus, “we do not second-guess the executive branch in matters of
clemency in capital cases.” Zakrzewski, 415 So. 3d at 211.
Jennings argues that the thirty-six-year time lapse between
his clemency proceeding and the signing of his death warrant
makes his clemency determination inadequate as an arbitrary
denial. But this Court previously “rejected the argument that a
long time lapse between a defendant’s clemency proceeding and the
signing of his death warrant renders the clemency process
inadequate or entitles the defendant to a second proceeding.” Pardo
v. State, 108 So. 3d 558, 568 (Fla. 2012); see also Bundy v. State,
497 So. 2d 1209, 1211 (Fla. 1986) (“We cannot say that the
executive branch was required to go through the motions of holding
a second proceeding when it could well have properly determined in
the first that appellant was not and never would be a likely
candidate for executive clemency.”). It bears repeating that in the
- 16 - thirty-six years since Jennings’s clemency denial, he could have,
but did not, reapply.
Jennings argues that because his clemency was denied before
any of his postconviction proceedings, his clemency determination
did not provide a “fail-safe in our criminal justice system” as
envisioned in Harbison v. Bell, 556 U.S. 180, 192 (2009).4 In
Johnston v. State, when the defendant argued that his clemency
proceeding “was inadequate because it was held before the
postconviction proceedings,” this Court concluded:
[T]he clemency system in Florida performed as intended in providing a “fail safe” for [the defendant]. He was given a full clemency hearing in 1987 at which he was represented by counsel. When the death warrant was signed on April 20, 2009, it stated that “it has been determined that Executive Clemency, as authorized by Article IV, Section 8(a), Florida Constitution, is not appropriate.”
27 So. 3d 11, 24 (Fla. 2010).
Here, as Jennings’s postconviction motion in the circuit court
acknowledged, he was represented by counsel at his 1988 clemency
4. In Harbison, the United States Supreme Court recognized that “[f]ar from regarding clemency as a matter of mercy alone, we have called it ‘the “fail safe” in our criminal justice system.’ ” 556 U.S. at 192 (quoting Herrera v. Collins, 506 U.S. 390, 415 (1993)).
- 17 - proceeding. When his death warrant was signed on October 10,
2025, it stated that “executive clemency for BRYAN FREDRICK
JENNINGS, as authorized by Article VI, Section 8(a), of the Florida
Constitution, was considered pursuant to the Rules of Executive
Clemency, and it has been determined that executive clemency is
not appropriate.” So as in Johnston, the clemency process here
performed as intended and Jennings’s arguments to the contrary
are without merit. See also Valle v. State, 70 So. 3d 530, 551 (Fla.
2011) (rejecting defendant’s claim that his clemency proceeding did
not serve as a fail-safe when it was done before his postconviction
proceedings).5
Jennings also contends that, based on developments since
1989, there may be additional mitigation to present at an updated
clemency proceeding. However, this Court has “previously rejected
5. In support of this fail-safe argument, Jennings relies on an appendix of clemency letters in his initial brief to claim that the Governor treated other similarly situated individuals differently than him. These documents were not submitted to the circuit court and cannot be considered here. See Gudinas v. State, 412 So. 3d 701, 708 n.5 (Fla.) (“We decline to consider materials that were not presented to and considered by the circuit court.”), cert. denied, 145 S. Ct. 2833 (2025). Regardless, as we have said, Jennings’s fail- safe argument is meritless.
- 18 - the argument that a defendant is entitled to present a full
accounting of mitigation evidence as part of the clemency process,”
much less a second clemency proceeding to present purportedly
developed mitigation. Pardo, 108 So. 3d at 568 (citations omitted);
see also Dailey v. State, 283 So. 3d 782, 788 (Fla. 2019) (“[T]o the
extent [the defendant] asserts that his execution would be arbitrary
because he was not granted an additional clemency proceeding at
which to present newly discovered evidence, his claim is foreclosed
by our caselaw.” (citations omitted)).
We affirm the circuit court’s denial of Jennings’s claim as to
his clemency proceeding.
B
Next, Jennings argues he was denied due process under the
Fifth Amendment, adequate representation of counsel under the
Sixth Amendment, his Eighth Amendment rights, and access to the
courts in violation of the Fourteenth Amendment, along with his
corresponding rights under the Florida Constitution, because the
Governor signed his death warrant at a time when he was
unrepresented in state court: his lawyer died in 2022. He
separately raises the same issue in his motion to vacate the death
- 19 - warrant or for a stay of execution. The circuit court denied these
claims. We find no fault in its decisions.
From as early as 1991, Jennings was represented in state
court by the Office of the Capital Collateral Representative (CCR).
See Jennings V, 583 So. 2d 316 (Jennings’s initial rule 3.850
motion, listing Larry Helm Spalding, Martin J. McClain, Jerome H.
Nickerson, and Bret R. Strand from the Office of the Capital
Collateral Representative, Tallahassee, for Jennings). Mr. McClain
continued representing Jennings in state proceedings for many
years thereafter, including after leaving CCR. See Jennings VII, 782
So. 2d 853 (Jennings’s remanded initial rule 3.850 postconviction
motion, noting Martin J. McClain, Brooklyn, NY, for Jennings);
Jennings XI, 265 So. 3d 460 (Jennings’s fourth successive rule
3.851 motion, noting Martin J. McClain of McClain & McDermott,
P.A., Wilton Manors, Florida, for Jennings).
In federal court, too, Mr. McClain continued to advocate for
Jennings after leaving CCR. See Jennings XIV, 392 F. Supp. 2d
1312 (Jennings’s first federal habeas petition, noting Martin James
McClain, McClain & McDermott PA, Wilton Manors, FL, for
Jennings); Jennings XV, 490 F.3d 1230 (noting Martin J.
- 20 - McClain (Court–Appointed), Wilton Manors, FL, for Jennings). In
addition to Mr. McClain’s advocacy in federal court, Jennings was
also appointed attorneys from the Capital Habeas Unit of the
Federal Public Defender’s Office (CHU) throughout his recent federal
proceedings. See Jennings XX, 108 F.4th 1299 (Jennings’s second
federal habeas petition, listing John Abatecola, Terri L.
Backhus, Linda McDermott, Federal Public Defender’s Office,
Tallahassee, FL, for Jennings). Jennings is represented by the
Federal Public Defender’s Office in his federal proceedings today. 6
In 2022, four years after this Court denied relief on Jennings’s
fourth successive rule 3.851 motion for postconviction relief
(Jennings XI), Mr. McClain passed away. Jennings claims he was
entitled to continuous representation, including after Mr. McClain’s
passing, despite the fact he had no matter pending in state court
until these warrant proceedings began. We disagree.
6. On October 22, 2025, counsel for Jennings, Linda McDermott from the Office of the Federal Public Defender for the Northern District of Florida, filed on Jennings’s behalf a complaint for declaratory and injunctive relief under 42 U.S.C. § 1983 seeking a stay of his execution.
- 21 - The Due Process Clause of the Fourteenth Amendment to the
United States Constitution ensures that no state shall “deprive any
person of life, liberty, or property, without due process of law.”
Amend. XIV, U.S. Const. Our Florida Constitution similarly
provides that “[n]o person shall be deprived of life, liberty or
property without due process of law.” Art. I, § 9, Fla. Const. We
have long recognized that “[d]ue process requires that a defendant
be given notice and an opportunity to be heard on a matter before it
is decided.” Asay v. State, 210 So. 3d 1, 27 (Fla. 2016) (citing Huff
v. State, 622 So. 2d 982, 982 (Fla. 1993)).
Jennings argues he has been denied access to the courts and
deprived of active investigation into potential claims since his
attorney’s passing in 2022. He claims that under Florida Rule of
Criminal Procedure 3.851 and section 27.710, Florida Statutes, he
was entitled to appointed counsel—at all times—unless a judge
allowed counsel to withdraw or the sentence was reversed, reduced,
or carried out, regardless of whether another attorney represented
him in a federal court. See Fla. R. Crim. P. 3.851(b)(5); § 27.710(4),
Fla. Stat. But rule 3.851 and chapter 27 only require
representation during postconviction proceedings. They are silent
- 22 - about representation when no matters are pending. See Fla. R.
Crim. P. 3.851(a) (“This rule applies to all postconviction
proceedings that commence on issuance of the appellate mandate
affirming the death sentence . . . .”); § 27.711(1)(a), Fla. Stat.
(defining “[c]apital defendant” as “the person who is represented in
postconviction capital collateral proceedings by an attorney
appointed under s. 27.710”); § 27.711(1)(c), Fla. Stat. (defining
“[p]ostconviction capital collateral proceedings” as “one series of
collateral litigation of an affirmed conviction and sentence of
death”).
Jennings has been represented by counsel during every
postconviction proceeding, both in state and federal court. While he
may have been unrepresented in state court during the three-year
period between his attorney’s passing and CCRC-M’s appointment
after the signing of his death warrant, Jennings benefitted from Mr.
McClain’s representation in all five of his postconviction motions.
Furthermore, he continued to be represented by federal counsel
even after Mr. McClain’s passing. And now, in his sixth
postconviction motion, he has been appointed the services of
CCRC-M.
- 23 - Jennings argues that, without continuous state postconviction
counsel, no one has tracked any changes in his mental or physical
health or any other possible grounds for postconviction relief. But
that ignores exactly what his federal counsel was available to do.
Even after Mr. McClain’s death, Jennings continued to receive, and
to date receives, the benefit of his federal CHU counsel. Jennings’s
suggestion that postconviction counsel was required to actively
investigate his case for the last three years we rejected in Asay,
where we found even a ten-year period without appointed counsel
did not violate due process where the defendant “was represented
by counsel at every stage of his postconviction proceedings.” Asay,
210 So. 3d at 27-28 (explaining that section 27.710, Florida
Statutes, does not mandate that postconviction counsel actively
investigate a defendant’s case and continuously bring forth new
arguments). Here, that can be said for Jennings, so we reject his
contention that any gap in his representation over the last four
decades amounts to a denial of due process.
Jennings also argues that the warrant schedule prevents his
current counsel from providing effective assistance under the Sixth
Amendment, and therefore effectively violates the Fourteenth
- 24 - Amendment’s guarantee to due process as well. He alleges that the
office of CCRC-M has been given an impossible task of reviewing
over forty-six years of proceedings and cannot under any
circumstances develop sufficient factual claims to support the
granting of an evidentiary hearing or a stay of execution.
It is true that, under Florida law, individuals sentenced to
death are entitled to the appointment of capital postconviction
counsel for the purpose of pursuing any collateral attacks on their
convictions and sentences. See § 27.702(1), Fla. Stat. (2025) (“The
capital collateral regional counsel shall represent each person
convicted and sentenced to death in this state for the sole purpose
of instituting and prosecuting collateral actions challenging the
legality of the judgment and sentence imposed . . . .”); Spalding v.
Dugger, 526 So. 2d 71, 72 (Fla. 1988). But Jennings does not say
that he sought the appointment of counsel for that purpose.
We have also said that this statutory provision “does not
create a right to effective assistance of postconviction counsel,” for
the statute itself “plainly states that ‘[a]n action taken by an
attorney who represents a capital defendant in postconviction
capital collateral proceedings may not be the basis for a claim of
- 25 - ineffective assistance of counsel.’ ” Barwick v. State, 361 So. 3d
785, 790 (Fla. 2023) (alteration in original and citation omitted)
(holding that Spalding only requires that a defendant be
represented by an attorney during postconviction proceedings); see
also Asay, 210 So. 3d at 28-29 (“[T]his Court has repeatedly held
that defendants are not entitled to effective assistance of collateral
counsel.”); Gore v. State, 91 So. 3d 769, 778 (Fla. 2012) (explaining
that there is no independent cause of action for ineffective
assistance of collateral counsel in Florida); Zack v. State, 911 So. 2d
1190, 1203 (Fla. 2005) (“Under Florida and federal law, a defendant
has no constitutional right to effective collateral counsel.”).
To the extent he argues that the warrant schedule in this
matter renders the assistance of his counsel ineffective, the
applicable statute and our settled law provide Jennings no avenue
of relief. Jennings’s counsel has zealously represented him since
CCRC-M was appointed. This is what the statute requires. See
Hall v. State, 420 So. 2d 872, 874 (Fla. 1982) (holding that the
denial of a continuance of warrant proceedings was proper where
counsel had only fourteen days between appointment and the
scheduled execution).
- 26 - We have recently considered and rejected claims similar to
Jennings’s, holding “an expedited warrant litigation schedule does
not deprive a defendant of his right to due process.” Windom v.
State, 416 So. 3d 1140, 1150 (Fla.), cert. denied, No. 25-5440, 2025
WL 2460118 (U.S. Aug. 27, 2025); see also Zakrzewski, 415 So. 3d
at 211 (rejecting claim that expedited process of warrant litigation
deprived defendant of his due process rights); Bell v. State, 415 So.
3d 85, 106-07 (Fla.) (rejecting challenge to time period set in death
warrant proceedings), cert. denied, 145 S. Ct. 2872 (2025); Tanzi v.
State, 407 So. 3d 385, 393 (Fla.) (rejecting similar constitutional
arguments attacking the compressed warrant litigation schedule),
cert. denied, 145 S. Ct. 1914 (2025).
To the extent Jennings believes the warrant proceedings
violate his Eighth Amendment rights, he offers no argument to
support this claim. The issue is insufficiently presented and
therefore waived. See Miller v. State, 161 So. 3d 354, 383 (Fla.
2015) (holding that conclusory allegations of ineffective assistance
of counsel consisting of a single statement are insufficient and
therefore waived); Wyatt v. State, 71 So. 3d 86, 111 n.19 (Fla. 2011)
(claim was insufficiently pled and therefore waived for purposes of
- 27 - appeal when defendant cited no authority demonstrating a right to
public-records access).
C
In his final claim, Jennings asserts that Florida’s capital
sentencing regime is constitutionally deficient for several reasons.
He contends that Florida’s capital sentencing system “no longer
meaningfully narrows death eligibility” and is facially invalid
because (1) a death sentence does not require a unanimous jury
recommendation and (2) proportionality review is not mandated.
Jennings further argues (3) that the Governor deployed an “opaque”
and “arbitrary” process in signing Jennings’s warrant instead of
carrying out the sentences of other warrant-eligible individuals. He
likewise contends (4) that the State’s clemency process is “stale and
secretive.” And finally, Jennings argues (5) that his sentence
cannot be constitutionally carried out because he was “deni[ed] . . .
continuous counsel.” We have repeatedly rejected these claims,
which are without merit.
Beginning with Jennings’s facial challenge, as we have
explained, “neither the Eighth Amendment nor any provision in our
state constitution requires jury sentencing in capital cases, or a
- 28 - unanimous jury recommendation, or indeed any jury
recommendation at all.” Herard v. State, 390 So. 3d 610, 622-23
(Fla. 2024) (citing Poole, 297 So. 3d at 503-05), cert. denied, 145 S.
Ct. 1315 (2025). Moreover, “we have ‘repeatedly rejected the
argument that the death-penalty statute violates the Eighth
Amendment because it fails to sufficiently narrow the class of
murderers eligible for the death penalty.’ Eliminating
proportionality review did not change that.” Loyd v. State, 379 So.
3d 1080, 1097-98 (Fla. 2023) (citation omitted) (quoting Wells v.
State, 364 So. 3d 1005, 1015 (Fla. 2023)), cert. denied, 145 S. Ct.
188 (2024). Simply put, “there is no merit to the suggestion that
the lack of proportionality review renders the entire capital
sentencing scheme in Florida facially unconstitutional for failing to
narrow the class of death-eligible defendants.” Fletcher v. State,
415 So. 3d 147, 162-63 (Fla. 2025), petition for cert. filed, No.
25-5923 (U.S. Oct. 21, 2025). Jennings does not offer any basis to
depart from this precedent, so we likewise reject his facial challenge
here.
Next, Jennings says that by signing his death warrant “while
dozens of represented, warrant-eligible prisoners remained, the
- 29 - Governor exercised the State’s ultimate power in a manner that was
arbitrary and opaque.” The argument is likewise foreclosed by this
Court’s precedent. Indeed, “[w]e have repeatedly held that the
Governor’s broad discretion in selecting which death warrants to
sign and when does not violate the United States Constitution or
the Florida Constitution.” Zakrzewski, 415 So. 3d at 210; see also
Hutchinson v. State, 416 So. 3d 273, 280 (Fla.) (“[W]e are aware of
no constitutional principle that demands a fixed formula, thereby
limiting the decisionmaker in determining the order of execution.”),
cert. denied, 145 S. Ct. 1980 (2025); Gore, 91 So. 3d at 780
(rejecting claims that the Governor’s absolute discretion to sign
death warrants violates the United States Constitution).
Jennings does not dispute that he is eligible for a death
warrant. His observation that the Governor could have exercised
his discretion to sign another death warrant does not provide a
basis for relief, because the Governor has “broad discretion in
selecting which death warrants to sign and when.” Zakrzewski, 415
So. 3d at 210. We have never disturbed the Governor’s exercise of
this discretion, and we decline to do so in this case.
- 30 - Jennings’s last two arguments—that his “denial of continuous
counsel” and a “stale and secretive clemency process” render
Florida’s capital sentencing scheme unconstitutional—are simply
repackaged versions of his first two claims, which we reject. See
supra pp. 13-28. Jennings was represented at every stage of his
postconviction proceedings. His claim that he was denied
“continuous counsel” stems from his incorrect suggestion that he
was entitled to postconviction counsel actively investigating his case
for the thirty-plus years from his sentence to the signing of the
warrant. Jennings was also given a full clemency hearing where he
was represented by counsel. The clemency process performed as a
fail-safe as intended. And this Court will not second-guess the
Governor’s clemency determination. 7
III
Jennings’s habeas petition alleges he has been deprived of life,
liberty, and property interests based on the lack of state court
7. As each of Jennings’s discrete attacks on Florida’s capital sentencing regime fail, we also reject Jennings’s contention that the “cumulative effect” of each of these purported “deficiencies” renders the system unconstitutional.
- 31 - representation since his attorney passed in 2022. He claims the
lapse in representation violates his due process rights under the
Fourteenth Amendment to the United States Constitution.
Jennings relies on section 27.711(12), Florida Statutes, which
requires the court to “monitor the performance of assigned counsel
to ensure that the capital defendant is receiving quality
representation.” § 27.711(12), Fla. Stat. This claim is nearly
identical to the second issue Jennings raises in his fifth successive
postconviction motion, which we reject for the reasons already
articulated. Jennings simply rewords his argument as a
deprivation of life, liberty, and property interests. “Habeas corpus
is not to be used to litigate or relitigate issues which could have
been, should have been, or were previously raised.” Gaskin v. State,
361 So. 3d 300, 309 (Fla. 2023). This claim is procedurally barred.
Still, we reiterate that Jennings did, in fact, have the benefit of
counsel for his first postconviction motion and the four successive
postconviction motions filed thereafter. Jennings argues that
chapter 27 creates life, liberty, and property rights to continuous
representation. It does not.
- 32 - First, as we have established, chapter 27 only requires
representation during postconviction proceedings. See
§ 27.711(1)(a), Fla. Stat. And we have held that the right to
postconviction counsel is purely “statutory in nature, not
constitutional.” Darling v. State, 45 So. 3d 444, 455 (Fla. 2010)
(emphasis omitted). We have specifically held that “[u]nder Florida
and federal law, a defendant has no constitutional right to effective
collateral counsel.” Barwick, 361 So. 3d at 791 (alteration in
original) (quoting Zack, 911 So. 2d at 1203). Section 27.7002,
Florida Statutes, explicitly provides that it “does not create any
right on behalf of any person, provided counsel pursuant to any
provision of this chapter, to challenge in any form or manner the
adequacy of the collateral representation provided.” § 27.7002(1),
Fla. Stat. Further, under section 27.711, postconviction capital
collateral proceedings “do[] not include repetitive or successive
collateral challenges to a conviction and sentence of death which is
affirmed by the Supreme Court and undisturbed by any collateral
litigation.” § 27.711(1)(c), Fla. Stat. Thus, Jennings was not denied
due process when he was provided counsel at all relevant stages of
his postconviction proceedings.
- 33 - Next, Jennings argues his lack of representation after his
attorney’s passing in 2022 denied him meaningful access to the
courts. We reject this. In his first postconviction motion, each of
his four successive postconviction motions, and now in his fifth
successive postconviction motion, Jennings has been provided
notice, counsel, and the opportunity to raise challenges. The
extensive procedural history we have summarized demonstrates
ample access to the courts. Jennings “had notice of each
postconviction proceeding and the opportunity to have counsel
argue his claims before the court.” Asay, 210 So. 3d at 28.
Finally, Jennings argues that he has been denied equal
protection because the Governor passed over other warrant-eligible
individuals who are already represented by state collateral counsel.
We reject this argument for the reasons we have already articulated.
IV
We affirm the summary denial of Jennings’s motion for
postconviction relief and deny his request for an evidentiary
hearing. We deny his concurrent motion to vacate the death
warrant or stay the execution, and we deny his petition seeking an
order from this Court directing the circuit court to vacate the death
- 34 - warrant or stay the execution. Additionally, we deny Jennings’s
petition for a writ of habeas corpus.
No motion for rehearing will be entertained by this Court. The
mandate shall issue immediately.
It is so ordered.
MUÑIZ, C.J., and COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur. LABARGA, J., concurs in result. CANADY, J., recused.
An Appeal from the Circuit Court in and for Brevard County, Kelly J. McKibben, Judge – Case No. 051979CF000773AXXXXX And an Original Proceeding – Habeas Corpus
Eric Pinkard, Capital Collateral Regional Counsel, Tracy Martinell Henry, Assistant Capital Collateral Regional Counsel, Cortney L. Hackett, Assistant Capital Collateral Regional Counsel, and Arielle B. Jackson, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant/Petitioner
James Uthmeier, Attorney General, Tallahassee, Florida, Jonathan S. Tannen, Senior Assistant Attorney General, Naomi Nichols, Senior Assistant Attorney General, and Michael W. Mervine, Special Counsel, Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
- 35 -