Supreme Court of Florida ____________
No. SC2026-0574 ____________
JAMES ERNEST HITCHCOCK, Appellant,
vs.
STATE OF FLORIDA, Appellee.
April 23, 2026
PER CURIAM.
James Ernest Hitchcock is a prisoner sentenced to death. The
Governor signed a warrant for his execution, set to occur April 30,
2026. Hitchcock appeals the denial of his successive motion for
postconviction relief. We have jurisdiction. See art. V, § 3(b)(1),
Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697 So. 2d
70, 71 (Fla. 1997) (holding “that in addition to our appellate
jurisdiction over sentences of death, we have exclusive jurisdiction
to review all types of collateral proceedings in death penalty cases”). For the reasons below, we affirm the denial of postconviction
relief and deny his motion for a stay of execution.
I
In 1976, James Ernest Hitchcock was indicted for murdering
his brother Richard’s thirteen-year-old stepdaughter. Hitchcock v.
State (Hitchcock I), 413 So. 2d 741, 743 (Fla. 1982); Hitchcock v.
State (Hitchcock VI), 755 So. 2d 638, 640 (Fla. 2000). Hitchcock
was living with Richard and Richard’s family—including the victim.
On the night of the murder, Hitchcock watched television with
Richard and his family until around 11:00 p.m. Hitchcock then left
the house, went to Winter Garden, and drank beer and smoked
marijuana with his friends.
Hitchcock told police post-arrest that he returned to the home
around 2:30 a.m. and entered through a dining room window. He
then went to the victim’s room and had sexual intercourse with her.
The victim told Hitchcock she was hurt and was going to tell her
mother. The victim started to yell because Hitchcock would not let
her leave the bedroom. Hitchcock then choked her and carried her
outside. When she still refused to be quiet, Hitchcock choked and
-2- beat the victim until she was silent and pushed her body into some
bushes. He returned to the home, showered, and went to bed.
At trial in January 1977, Hitchcock recanted his prior
statement to police confessing to the murder. Contrary to his prior
statement, Hitchcock claimed that the victim let him into the house
and agreed to have sexual intercourse. Hitchcock claimed that after
having intercourse, Richard entered the bedroom, dragged the
victim outside, and began choking her. Hitchcock said that by the
time he got Richard away from the victim, she was already dead.
According to Hitchcock, Richard said he did not mean to kill her,
and that Hitchcock would cover up for Richard. In explanation for
his prior admission, Hitchcock said he was trying to protect
Richard.
The jury found him guilty of first-degree murder and
recommended that he be sentenced to death. Hitchcock I, 413 So.
2d at 743. After weighing the aggravating and mitigating
circumstances, the court agreed with the jury’s recommendation
and imposed the death penalty. Id. 1
1. The court found three aggravating circumstances: (1) the murder was committed in the course of an involuntary sexual
-3- We affirmed Hitchcock’s judgment and sentence on direct
appeal in 1982, rejecting the many issues he raised. Id. 2 The U.S.
battery; (2) the purpose of the murder was to eliminate a witness to avoid arrest; and (3) the murder was especially heinous, wicked, or cruel. Hitchcock I, 413 So. 2d at 746.
2. Hitchcock argued the following in that direct appeal: (1) the trial court improperly restricted his presentation of evidence corroborating his defense theory, his impeachment of a key prosecution witness, and his explanation of his false confession; (2) the trial court improperly communicated with the jury during deliberations; (3) the exemption of mothers with young children from jury service denied his right to a jury drawn from a fair cross-section of the community; (4) the evidence was insufficient to convict him of first-degree murder because it did not show premeditation or felony murder; (5) the trial court erred by denying Hitchcock’s motion for judgment of acquittal, claiming insufficiency of the evidence to show either premeditation or felony murder; (6) the trial court sentenced him to death because he exercised his right to a jury trial; (7) the conviction and sentence must be overturned because, before trial, he had no notice of the aggravating circumstances that the State intended to show and on which the judge and jury relied; (8) the trial judge improperly assessed the aggravating and mitigating factors; (9) the rape portion of section 921.141(5)(d), Florida Statutes (1977), is so vague and confusing as to be unconstitutional because the crime of “rape” no longer exists in this state (“Ch. 74–121, Laws of Florida, amended ch. 794, Fla. Stat., to replace the former rape statute with the crime of sexual battery.” Hitchcock I, 413 So. 2d at 747 n.7); (10) section 921.141 unconstitutionally limits the consideration of mitigating factors and that he was improperly limited in presenting mitigating evidence; and (11) section 921.141 is unconstitutional on its face, that the death penalty is inconsistently applied, and that there are no standards for weighing aggravating and mitigating factors. Hitchcock I, 413 So. 2d at 744-48.
-4- Supreme Court denied certiorari review. Hitchcock v. Florida, 459
U.S. 960 (1982).
In 1983 Governor Graham denied Hitchcock’s clemency
request and signed his death warrant. Hitchcock v. State (Hitchcock
II), 432 So. 2d 42, 43 (Fla. 1983). Hitchcock then filed a motion to
vacate his judgment and sentence under Florida Rule of Criminal
Procedure 3.850. In the postconviction court, Hitchcock raised two
claims3 that the postconviction court summarily denied. Hitchcock
appealed, repeating his claims made in the trial court and arguing
the trial court erred in denying his motion. We affirmed, finding
that the motion and record conclusively showed that Hitchcock was
not entitled to relief. Id.
Hitchcock then petitioned for federal habeas relief. After the
U.S. District Court for the Middle District of Florida denied relief
and the Eleventh Circuit Court of Appeals affirmed, the U.S.
3. Hitchcock argued that his death sentence violated his Sixth, Eighth, and Fourteenth Amendment rights for two reasons: “[(1)] the then-current state of the law prevented his trial counsel from presenting nonstatutory mitigating evidence at his sentencing proceeding; and [(2)] the death penalty statute fail[ed] to channel jury discretion and permit[ted] the interjection of irrelevant factors into the sentencing process.” Hitchcock II, 432 So. 2d at 43.
-5- Supreme Court granted review. Hitchcock v. Dugger, 481 U.S. 393,
394 (1987). Hitchcock argued that he was sentenced to death
under a Florida statute that operated in a way that prevented the
sentencing jury and judge from considering relevant mitigating
evidence—that being mitigating circumstances not listed in the
statute. Id. The Supreme Court reversed, finding that in
Hitchcock’s case “the advisory jury was instructed not to consider,
and the sentencing judge refused to consider, evidence of
nonstatutory mitigating circumstances,” all of which ran contrary to
the requirements of Skipper v. South Carolina, 476 U.S. 1 (1986),
Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438
U.S. 586 (1978) (plurality opinion), as Hitchcock was precluded
from presenting all relevant mitigating evidence. Hitchcock, 481
U.S. at 398-99.
After the Supreme Court’s decision in Hitchcock v. Dugger, 481
U.S. at 399, the State proceeded with a new penalty phase.
Hitchcock v. State (Hitchcock III), 578 So. 2d 685, 688 (Fla. 1990). A
jury again recommended sentencing Hitchcock to death. Id. The
trial court imposed the death penalty after finding four aggravating
-6- factors 4 and finding the aggravating factors to outweigh the
mitigation. 5 Id.
After his resentencing, Hitchcock appealed his death sentence,
again raising many issues. 6 We affirmed Hitchcock’s death
4. The court found the crime was committed while Hitchcock was under sentence of imprisonment, was committed during a sexual battery, was committed to avoid or prevent arrest, and was especially heinous, atrocious, or cruel (HAC). Hitchcock III, 578 So. 2d at 688.
5. The court considered as mitigation Hitchcock’s age, deprivations, character traits, and use of drugs and alcohol. Id.
6. He argued (1) the trial court improperly refused to grant his challenges for cause to three prospective jurors; (2) the trial court prevented him from presenting mitigating evidence; (3) the trial court erred in allowing the State to read into evidence the trial transcript of a hair analyst’s testimony; (4) it was improper to introduce his original confession and a letter to his mother confessing to the murder; (5) testimony about the victim and her characteristics was improper; (6) he was prejudiced by having eight death row inmates testify on his behalf; (7) “the jurors’ and potential jurors’ knowledge of his previous sentence from pretrial publicity was unlawfully prejudicial and that the court’s refusing his proposed instruction compounded that prejudice;” (8) the court erred in instructing the jury on the aggravating circumstance of murder committed during the commission of a felony because “[t]here is no conviction for sexual battery in this case;” (9) the court erred in finding four aggravating circumstances and that his death sentence is disproportionate; (10) instructing the jury in terms of “sexual battery” rather than “rape” is an ex post facto violation; (11) the trial court’s finding of the “under sentence of imprisonment” aggravator was an ex post facto violation and constitutes double jeopardy; and (12) the delay between his arrest (1976) and
-7- sentence, id. at 693, and the U.S. Supreme Court denied
Hitchcock’s petition for writ of certiorari, Hitchcock v. Florida, 502
U.S. 912 (1991). But eight months later, the U.S. Supreme Court
granted petitions for rehearing and for writ of certiorari, vacating
the judgment and remanding the case to this Court for further
consideration in light of Espinosa v. Florida, 505 U.S. 1079 (1992).
Hitchcock v. Florida, 505 U.S. 1215 (1992).
On remand from the U.S. Supreme Court, we determined that
the trial court gave the jury an inadequate instruction on the
especially heinous, atrocious, or cruel (HAC) aggravator under
Espinosa. Hitchcock v. State (Hitchcock IV), 614 So. 2d 483, 484
(Fla. 1993). Because this Court could not determine the extent to
which the instruction factored into the jury’s consideration of the
recommended sentence, we vacated Hitchcock’s death sentence and
resentencing (1988) violates his right to a speedy trial and his due process rights and constitutes cruel and unusual punishment. Hitchcock III, 578 So. 2d at 688-93 (alteration in original). The Court added that Hitchcock argued some issues that did not merit discussion: unconstitutionality of the instruction on HAC; unconstitutionality of Florida’s death penalty statute; and jury instructions regarding sympathy toward the defendant. Id. at 688 n.2.
-8- directed the trial court to empanel a jury for a new penalty phase.
Id.
Hitchcock was resentenced to death—following a unanimous
jury recommendation—and he appealed to this Court. Hitchcock v.
State (Hitchcock V), 673 So. 2d 859, 860 (Fla. 1996). 7 We again
reversed and remanded for resentencing because “evidence
portraying Hitchcock as a pedophile, including unverified
allegations of Hitchcock’s sexual abuse of a number of children,
was erroneously made a feature of his resentencing proceeding” and
“deprived Hitchcock of a fair sentencing.” Id. at 860.
Hitchcock’s third resentencing began in September 1996.
Hitchcock VI, 755 So. 2d at 640. The jury recommended sentencing
Hitchcock to death by a 10-2 vote. Id. The court sentenced
Hitchcock to death after finding four aggravating circumstances. 8
7. The trial court found four aggravators: (1) the capital felony was committed while Hitchcock was under a sentence of imprisonment; (2) the capital felony was committed while Hitchcock was engaged in the commission of a sexual battery; (3) the capital felony was committed for the purpose of avoiding a lawful arrest; and (4) the capital felony was HAC. Hitchcock V, 673 So. 2d at 861 n.2.
8. The court found that (1) the crime was committed by a person under sentence of imprisonment (parole); (2) the crime was
-9- The court found one statutory mitigating factor, Hitchcock’s age
(twenty). 9 Id.
On appeal from this new death sentence, Hitchcock raised
eighteen claims. 10 This Court rejected all his claims as either
committed during commission of the felony of sexual battery; (3) the crime was committed for the purpose of avoiding arrest; and (4) the crime was especially HAC. Hitchcock VI, 755 So. 2d at 640.
9. “As to nonstatutory mitigation, the court in an amended sentencing order assigned ‘very little weight’ to six circumstances surrounding the instant crime, ‘some weight’ to nine circumstances concerning Hitchcock’s background, and ‘some weight’ to eight circumstances concerning Hitchcock’s ‘positive character traits.’ ” Id. at 640-41.
10. Hitchcock claimed that: (1) the trial court erred in permitting the State to put into evidence a three-page narrative report concerning results of a psychological test; (2) the trial court erred in overruling the defense objection to the State’s closing argument as to Hitchcock’s mitigation evidence; (3) the trial court erred in overruling the defense objection to the State’s argument as to a defense expert witness; (4) fundamental error occurred in the State’s final argument to the jury; (5) resentencing is required because the judge in Hitchcock’s new trial was removed from the bench during an investigation of bribery charges, and it was error for a substitute judge to rule on Hitchcock’s motion for resentencing; (6) the trial court erred in instructing upon, allowing the State to argue, and finding the aggravating circumstance of avoiding or preventing arrest; (7) the trial court erred in denying Hitchcock’s constitutional challenges to the sentence of imprisonment and felony-murder aggravating circumstances as applied; (8) the State failed to prove the felony-murder aggravating circumstance based on the underlying felony of rape or sexual battery, and this aggravating circumstance is unconstitutional; (9)
- 10 - procedurally barred or without merit and affirmed. Id. at 641. The
U.S. Supreme Court denied Hitchcock’s petition for writ of
certiorari. Hitchcock v. Florida, 531 U.S. 1040 (2000).
In 2001, Hitchcock filed a motion for postconviction DNA
testing under section 925.11, Florida Statutes, and Florida Rule of
Criminal Procedure 3.853. Hitchcock v. State (Hitchcock VII), 866
So. 2d 23, 25 (Fla. 2004). The postconviction court denied
Hitchcock’s motion, finding that the motion did not “set forth the
evidentiary value of the evidence to be tested or explain how the
results would exonerate Defendant or mitigate his sentence.” Id. at
the trial court erred in using the HAC aggravating circumstance and in giving an unconstitutional instruction as to HAC; (10) the trial court erred in refusing to instruct the jury as to improper doubling of aggravating circumstances; (11) the trial court erred in considering both the felony-murder and avoid-arrest aggravating circumstances; (12) the trial court’s findings as to mitigation were deficient; (13) Hitchcock’s death sentence is disproportionate; (14) the trial court erred in permitting testimony showing that his appellate attorney had represented Hitchcock on clemency; (15) the trial court erred in denying relief based on newly discovered evidence without considering corroborating evidence and circumstances; (16) the trial court (a substitute judge) erred in ruling on and denying Hitchcock’s motion for a new sentencing proceeding; (17) the trial court erred in excluding from evidence and refusing to consider the State’s prior offer of a life sentence; and (18) conducting Hitchcock’s sentencing proceeding many years after his crime was unconstitutional. Id.
- 11 - 26. Hitchcock appealed the denial of his motion, and we affirmed.
Id. at 27-28.
Hitchcock also filed a rule 3.850 motion in 2001, raising
thirteen claims. Hitchcock v. State (Hitchcock VIII), 991 So. 2d 337,
342-44 (Fla. 2008). 11 The postconviction court denied all of
11. He argued (1) resentencing counsel was ineffective for failing to object to the testimony of a witness; (2) guilt-phase counsel and resentencing counsel were ineffective for failing to object to testimony and argument that the victim was a virgin at the time of the offense; (3) guilt-phase counsel was ineffective for failing to spend adequate time preparing for trial and thus opened the door to negative character evidence about him and for failing to admit evidence implicating Richard in the murder; (4) resentencing counsel was ineffective for failing to recall a doctor to explain the Minnesota Multiphasic Personality Inventory narrative report introduced by the State; (5) resentencing counsel was ineffective for failing to have him evaluated for neuropsychological impairment; (6) resentencing counsel was ineffective for failing to fully develop available statutory and nonstatutory mitigating evidence; (7) the State violated his constitutional rights by destroying exculpatory physical evidence; (8) the trial court’s instructions diminished the jury’s role in sentencing in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), and counsel was ineffective for not objecting to the instructions; (9) newly discovered evidence demonstrated that Richard committed the murder; (10) the State failed to disclose the deficiencies of hair analyst Diana Bass and then knowingly presented the analyst’s incompetent and false testimony, guilt- phase counsel was ineffective for failing to challenge the admissibility of Bass’s testimony, and this newly discovered evidence of Bass’s incompetence undermined his conviction; (11) resentencing counsel was ineffective for failing to object to the court’s felony-murder instruction and for failing to request a jury instruction on the elements of sexual battery; (12) his constitutional
- 12 - Hitchcock’s claims, and he appealed, raising eleven issues. 12 Id. at
rights were violated because he was not present at the bench conference when peremptory challenges were exercised, trial counsel was ineffective for failing to ensure that Hitchcock was present during all critical stages of the proceedings, and the trial court erred by not ensuring that the transcript was complete; and (13) Florida’s capital sentencing scheme is unconstitutional as applied to him. Hitchcock VIII, 991 So. 2d at 344 n.5.
12. He claimed (1) the circuit court erred in holding that his guilt-phase claims were procedurally barred; (2) the circuit court erred in denying his claim that resentencing counsel was ineffective for failing to object to the testimony of a witness; (3) the circuit court erred in denying his claim that guilt-phase counsel was ineffective for failing to spend adequate time preparing for trial and thus opened the door to negative character evidence about him and for failing to admit evidence implicating Richard in the murder; (4) the circuit court erred in denying his claim that resentencing counsel was ineffective for failing to present available evidence of statutory mitigating circumstances and organic brain damage; (5) the circuit court erred in denying his claim that the State violated his constitutional rights by destroying exculpatory physical evidence; (6) the circuit court erred in denying Hitchcock’s claim that the trial court’s instructions diminished the jury’s role in sentencing, in violation of Caldwell and counsel was ineffective for not objecting to the instructions; (7) the circuit court erred in denying his claim that newly discovered evidence demonstrated that Richard committed the murder; (8) the circuit court erred in denying his claim that his constitutional rights were violated when the State failed to disclose the deficiencies of hair analyst Diana Bass and then knowingly presented the analyst’s incompetent and false testimony, guilt-phase counsel was ineffective for failing to challenge the admissibility of Bass’s testimony, and this newly discovered evidence of Bass’s incompetence undermined his conviction; (9) the circuit court erred in denying his claim that resentencing counsel was ineffective for failing to object to the court’s felony-murder instruction and for failing to request a jury
- 13 - 344. He also filed a petition for writ of habeas corpus, raising six
issues. 13 Id. at 345. We affirmed the postconviction court’s denial
of Hitchcock’s motion for postconviction relief and denied his
petition for writ of habeas corpus. Id. at 364.
Hitchcock then unsuccessfully engaged in further federal and
state litigation. See Hitchcock v. Sec’y, Dep’t of Corr., No. 6:08-CV-
instruction on the elements of sexual battery; (10) the circuit court erred in denying his claim that his constitutional rights were violated when he was not present at the bench conference where peremptory challenges were exercised, trial counsel was ineffective for failing to ensure that he was present during all critical stages of the proceedings, and the trial court erred by not ensuring that the transcript was complete; and (11) the circuit court erred in denying his claim that he is entitled to relief under Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Hitchcock VIII, 991 So. 2d at 344 n.6.
13. Hitchcock argued (1) his constitutional rights were violated when he was deprived of notice of felony murder and a unanimous verdict identifying whether the jury found him guilty on the theory of felony murder or premeditated murder, and appellate counsel was ineffective for failing to raise this claim on direct appeal; (2) appellate counsel was ineffective for failing to raise on direct appeal the claim that his absence from crucial portions of his trial violated his constitutional rights; (3) appellate counsel was ineffective for failing to challenge on direct appeal the trial court’s finding that the murder was committed during a sexual battery; (4) appellate counsel was ineffective for failing to raise on direct appeal the claim that the resentencing instructions violated Caldwell; (5) Florida’s death penalty statute is unconstitutional because it violates Ring and Apprendi; and (6) he is incompetent to be executed. Hitchcock VIII, 991 So. 2d at 345 n.7.
- 14 - 1719-ORL-31KRS, 2012 WL 4339573 (M.D. Fla. Sept. 20, 2012)
(denying federal habeas petition); Hitchcock v. Sec’y, Florida Dep’t of
Corr., 745 F.3d 476 (11th Cir. 2014) (affirming denial of habeas
corpus); Hitchcock v. Crews, 574 U.S. 939, 939 (2014) (denying
petition for writ of certiorari); Abdool v. Bondi, 141 So. 3d 529 (Fla.
2014) (unsuccessfully challenging “Timely Justice Act of 2013”).
Most recently, Hitchcock argued in a successive rule 3.851
motion for postconviction relief that his death sentence—which
became final in 2000—was unconstitutional under Hurst v. Florida,
577 U.S. 92 (2016), and this Court’s decision on remand in Hurst v.
State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v.
Poole, 297 So. 3d 487 (Fla 2020). Hitchcock v. State (Hitchcock IX),
226 So. 3d 216, 216-17 (Fla. 2017). The postconviction court
summarily denied Hitchcock’s motion, a denial we affirmed because
precedent foreclosed relief and Hurst did not apply retroactively to
Hitchcock’s sentence, which had become final when the U.S.
Supreme Court decided Ring. The U.S. Supreme Court denied
Hitchcock’s petition for writ of certiorari on December 4, 2017.
Hitchcock v. Florida, 583 U.S. 1019 (2017).
- 15 - On March 30, 2026, Governor DeSantis signed a death
warrant for Hitchcock’s execution. The execution is set for April 30,
2026, at 6:00 p.m. On April 1, 2026, under the circuit court’s
separate scheduling order, Hitchcock filed demands for additional
public records directed to the Florida Department of Corrections
(FDOC) and the Florida Department of Law Enforcement (FDLE). In
his requests, he clarified that he was “not arguing that the protocol
itself is unconstitutional. Mr. Hitchcock seeks records which
support the colorable claim that FDOC’s failure to follow its own
policies and procedures violates his Eighth Amendment rights.”
(Emphasis omitted.) Both state agencies filed written objections,
and after conducting a hearing, the circuit court sustained FDOC’s
and FDLE’s objections.
Timely under this Court’s scheduling order, Hitchcock filed the
successive motion for postconviction relief at issue here, raising the
following two issues: (1) the denial of access to lethal injection
records violates his rights under article I, section 24 of the Florida
Constitution, and the Fifth and Fourteenth Amendments of the U.S.
Constitution, ultimately preventing him from proving a viable claim
that his execution would violate the Eighth Amendment; and (2) his
- 16 - execution would be the unconstitutional execution of an innocent
man in violation of the Fifth, Eighth, and Fourteenth Amendments
to the U.S. Constitution under Herrera v. Collins, 506 U.S. 390, 417
(1993), as well as the corresponding provisions in the Florida
Constitution. In support he attached an affidavit of Dr. Daniel
Buffington, which also had accompanied his public records
requests. In the affidavit, Dr. Buffington provided his “expert
opinion as to the significance and importance” of the information
requested, stating that certain errors or deviation from lethal
injection protocol “could result in unnecessary pain or discomfort or
an unexpected termination of the execution procedure prior to the
inmate’s death.” Hitchcock also moved for a stay of execution.
The circuit court held a Huff 14 hearing on April 9, 2026, to
decide whether Hitchcock’s motion required an evidentiary hearing.
That same day, the court denied Hitchcock’s request for an
evidentiary hearing. On April 13, 2026, the circuit court entered its
order summarily denying Hitchcock’s successive motion for
postconviction relief and denying his motion for stay. Hitchcock
14. Huff v. State, 622 So. 2d 982 (Fla. 1993).
- 17 - now timely appeals the circuit court’s order.
II
“Summary denial of a successive postconviction motion is
appropriate ‘[i]f the motion, files, and records in the case
conclusively show that the movant is entitled to no relief.’ ” Bogle v.
State, 322 So. 3d 44, 46 (Fla. 2021) (alteration in original) (quoting
Fla. R. Crim. P. 3.851(f)(5)(B)); see Fla. R. Crim. P. 3.851(h)(6). In
reviewing a circuit court’s summary denial, “this Court must accept
the defendant’s allegations as true to the extent that they are not
conclusively refuted by the record.” Tompkins v. State, 994 So. 2d
1072, 1081 (Fla. 2008) (citing Rolling v. State, 944 So. 2d 176, 179
(Fla. 2006)). Still, “[t]he defendant bears the burden to establish a
prima facie case based on a legally valid claim; mere conclusory
allegations are insufficient.” Franqui v. State, 59 So. 3d 82, 96 (Fla.
2011) (citing Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000)).
A circuit court’s decision whether to grant an evidentiary hearing on
a rule 3.851 motion “is tantamount to a pure question of law,
subject to de novo review.” Marek v. State, 8 So. 3d 1123, 1127
(Fla. 2009) (citing State v. Coney, 845 So. 2d 120, 137 (Fla. 2003)).
- 18 - A
In his first argument on appeal, Hitchcock argues the circuit
court erred when it sustained FDOC’s and FDLE’s objections to his
demands for public records filed on April 1, 2026, and denied his
requests. Hitchcock clarifies in his initial brief that he does not
present this argument as a newly discovered evidence claim but as
“a violation of Mr. Hitchcock’s rights which renders his execution
unconstitutional.” In essence, Hitchcock presents a procedural due
process claim ultimately seeking the ability to pursue an Eighth
Amendment method-of-execution claim. We conclude Hitchcock is
not entitled to relief.
The first reason Hitchcock’s argument fails is that his public
records-based claim is not one aimed at the validity of the judgment
or sentence. Instead, he asserts what is essentially a freestanding
due process claim, untethered to any claim that is cognizable under
rule 3.851. 15
15. Hitchcock’s initial brief states: “Mr. Hitchcock has not raised either an ‘as-applied’ or ‘method of execution’ challenge to the use of lethal injection for the State’s planned execution, but rather [argues] that he is being prevented from obtaining the
- 19 - By insisting that he has a right to discovery in the absence of
a claim that could give rise to relief under rule 3.851, Hitchcock
mirrors the strategy pursued by several defendants in federal
court. But no constitutional right exists to discover grievances or to
litigate effectively once in court. Lewis v. Casey, 518 U.S. 343, 354
(1996) (disclaiming prior statements appearing to suggest that the
State must enable a prisoner to discover grievances, and to litigate
effectively in court); Hill v. Dailey, 557 F.3d 437, 439 (6th Cir. 2009)
(citing Lewis, 518 U.S. at 354, and discussing that the State does
not have an obligation to ensure prisoners “litigate effectively once
in court”).
So courts presented with similar scenarios have rejected due
process and other rights-based arguments to execution-related
information. See, e.g., Trottie v. Livingston, 766 F.3d 450, 452 (5th
Cir. 2014) (“[W]e have held that an uncertainty as to the method of
execution is not a cognizable liberty interest.” (citing Sepulvado v.
Jindal, 729 F.3d 413, 420 (5th Cir. 2013))); First Amend. Coal. of
Ariz., Inc. v. Ryan, 938 F.3d 1069, 1081 (9th Cir. 2019) (rejecting
necessary records to prove any legitimate challenge.” Initial Brief of the Appellant at 16-17.
- 20 - arguments that First Amendment entitles inmates to access to
information regarding execution drugs and personnel to discover
whether they have a colorable claim that their executions will be
carried out in violation of the Eighth and Fourteenth Amendments);
Jones v. Comm’r, Georgia Dep’t of Corr., 812 F.3d 923, 929 (11th
Cir. 2016) (“Jones has not identified any cognizable liberty interest
infringed by the Georgia secrecy law nor has he even begun to
describe the framework for analyzing this novel constitutional
right.”); Sepulvado, 729 F.3d at 420 (“There is no violation of the
Due Process Clause from the uncertainty that Louisiana has
imposed on [the inmate] by withholding the details of its execution
protocol.”); Zink v. Lombardi, 783 F.3d 1089, 1109 (8th Cir.
2015) (agreeing with the Fifth and Eleventh Circuits that “a
prisoner’s assertion of necessity—that the State must disclose its
protocol so he can challenge its conformity with the Eighth
Amendment—does not substitute for the identification of a
cognizable liberty interest” (citation modified)).
For example, in 2014, Ohio enacted a law treating the identity
of individuals and entities that participate in the lethal injection
process as confidential and privileged under law. Phillips v.
- 21 - DeWine, 841 F.3d 405, 410 (6th Cir. 2016). The law also prohibited
the information from being disclosed as a public record or subject
to disclosure during judicial proceedings, with few exceptions. Id.
Prisoners challenged the new law, arguing in part that it violated
their equal protection and due process rights and their right to
access the courts because it “denie[d] [them] an opportunity to
discover and litigate non-frivolous claims.” Id. at 412, 420 (second
alteration in original). But those arguments were rejected because
“no constitutional right exists to discover grievances or to litigate
effectively once in court.” Id. at 420 (citing Lewis, 518 U.S. at 354,
and Hill, 557 F.3d at 439, and collecting cases).
Likewise, Hitchcock has not raised a claim that is cognizable
under rule 3.851. As a result, his constitutional arguments
grounded in denial of discovery do not form a valid basis on which
to vacate his death sentence. Jones, 812 F.3d at 930 (holding that
a stand-alone claim that a Georgia statute infringed on defendant’s
ability to “discover grievances, and to litigate effectively once in
court” was untethered to an Eighth Amendment claim and therefore
did not “implicate[] any constitutional right”).
So even if the circuit court erred in denying the public records
- 22 - requests, Hitchcock would not be entitled to relief from his
sentence.
Hitchcock’s claim fails for a second reason though. Even if the
denial of public records on its own could “render[] his execution
unconstitutional” as Hitchcock argues, the circuit court did not err
in denying his requests. To explain why, and before addressing
each of Hitchcock’s sub-arguments on this point, we will provide an
overview of Florida’s public records law in the context of capital
postconviction proceedings.
a
Section 27.7081, Florida Statutes, and Florida Rule of
Criminal Procedure 3.852 currently govern public records
production for capital postconviction inmates. We adopted the
current rule 3.852 following an extensive review process and a
statutory repeal. Sims v. State, 753 So. 2d 66, 69 (Fla. 2000).
Initially, though, capital collateral representative (CCR) attorneys
were encountering discovery problems under then-existing public
records laws because there was no formal discovery mechanism
under rule 3.850. CCR had to file incomplete rule 3.850 motions to
- 23 - meet the one-year deadline for filing a motion under that rule,
reserving the right to supplement the motion upon the receipt and
review of belated public records.
Our opinion adopting the original rule highlighted that it was a
“carefully tailored discovery rule for public records production
ancillary to rule 3.850 and 3.851 proceedings.” See id. (citing In re
Amend. to Fla. Rules of Crim. Proc.—Cap. Postconviction Pub. Recs.
Prod., 683 So. 2d 475, 476 (Fla. 1996)). We also noted “[t]he rule
does not affect, expand, or limit the production of public records for
any purposes other than use in a 3.850 or 3.851 proceeding” and
that any public records not obtained under rule 3.852 must still be
admissible, suggesting public records obtained outside of the
postconviction discovery process. See In re Amend. to Fla. Rules of
Crim. Proc.—Cap. Postconviction Pub. Recs. Prod., 683 So. 2d at 476
n.1.
Subsequently, the Legislature repealed our rule and passed
chapter law 98-198, codified at section 119.19, Florida Statutes
(Supp. 1998). Sims, 753 So. 2d at 69. The newly passed statute
codified the response to the public record conundrum. We adopted
a revised version of rule 3.852, again stating that the rule should
- 24 - “serve as a basis for providing to the postconviction process all
public records that are relevant or would reasonably lead to
documents that are relevant . . . to postconviction issues.” Amends.
to Fla. Rules of Crim. Proc. 3.852 (Cap. Postconviction Pub. Recs.
Prod.) & Rule 3.993 (Related Forms), 754 So. 2d 640, 642 (Fla.
1999). Since 1998, the relevant statute has undergone revisions
and is now renumbered as section 27.7081, Florida Statutes (2025).
In their present-day forms, the rule and statute impose special
requirements on state officials to make documents relevant to
postconviction claims readily accessible through a repository.
§ 27.7081(3), Fla. Stat. The scheme further streamlines the process
for obtaining “additional” public records that have not already been
set aside by state officials, providing strict timelines for an agency
or person served with a request under the statute to object and for
the circuit court already assigned to the case to resolve the dispute.
§ 27.7081(8), Fla. Stat.; Fla. R. Crim. P. 3.852(g). This alleviates the
need for a capital postconviction inmate to pursue records
separately under chapter 119. Cf. § 27.7081(11), Fla. Stat. The
statute is not unqualified though.
Throughout each iteration of the statute, it has required
- 25 - counsel for a postconviction inmate to demonstrate that records
sought beyond those contained in the repository are “relevant to the
subject matter of a proceeding under Rule 3.850 or Rule 3.851 or
appear reasonably calculated to lead to the discovery of admissible
evidence.” § 119.19(8)(b)(3), Fla. Stat. (Supp. 1998). Separately,
section 27.708 restricts collateral counsel from requesting public
records on behalf of a capital postconviction inmate except from the
records repository and through the additional avenues provided by
section 27.7081. § 27.708(3), Fla. Stat. (2025).
b
It is against this backdrop that we now address Hitchcock’s
arguments. First, Hitchcock argues that rule 3.852 and section
27.7081, Florida Statutes, hinder his access to public records
because the rule and statute require defendants to overcome
hurdles that are not imposed on members of the general public. He
argues that he is a member of the public, but his access to public
records is being denied based entirely on his status as a capital
postconviction inmate because of the “additional hoops” the statute
and rule require he jump through.
Hitchcock’s argument on this point fails because it appears to
- 26 - be based on the inaccurate view that Hitchcock is limited to seeking
public records under rule 3.852, to the exclusion of chapter 119.
But rule 3.852 and section 27.7081 are there to supplement
chapter 119 in the context of postconviction litigation—not to
supplant. The plain language of both the rule and statute confirms
this conclusion, stating they “do[] not affect, expand, or limit the
production of public records for any purpose other than use in a
proceeding held pursuant to Rule 3.850 or Rule 3.851.”
§ 27.7081(2), Fla. Stat.; Fla. R. Crim. P. 3.852(a).
The rule’s provisions must be read in context though. And in
the overall context of Florida’s postconviction scheme, rule 3.852 is
a discovery rule. See, e.g., Sims, 753 So. 2d at 69 (referring to rule
3.852 as a “discovery rule”). It follows that to benefit from the rule’s
streamlined process, the normal constraints of discovery apply.
Those constraints include a categorical limitation on the types of
records a postconviction defendant may seek—that is, those
documents that appear “reasonably calculated to lead to the
discovery of admissible evidence.” Fla. R. Crim. P. 3.852(i)(1)(C).
Section 27.7081 echoes that limitation. § 27.7081(9)(a)3., Fla. Stat.
And our precedent echoes it too, clarifying that if a postconviction
- 27 - defendant avails himself of rule 3.852’s streamlined process, he is
prohibited from conducting a “fishing expedition” and the records
must relate to a “colorable claim.” Sims, 753 So. 2d at 70. Those
limitations are characteristic of discovery in all types of litigation in
state and federal courts. There is nothing problematic or even
unexpected about the constraining language in rule 3.852.
Wyatt v. State, 71 So. 3d 86 (Fla. 2011), supports this
conclusion. There, a postconviction movant, through counsel,
argued that Florida Rule of Criminal Procedure 3.852 and section
27.7081, Florida Statutes (2006), unconstitutionally restricted his
right to public records access under the Florida and U.S.
constitutions because both provisions impermissibly mandate that
his demand for public records not be “overly broad or unduly
burdensome” and that he make his own search for records. Wyatt,
71 So. 3d at 110-11. We concluded that the requirement that a
defendant make a diligent search through records already produced
and narrow his or her request to provide adequate notice to the
agency from which a defendant seeks information is reasonable in
the context of capital postconviction claims. Id. at 111.
Hitchcock’s constitutional arguments related to the colorable
- 28 - claim requirement also fail. There is no equal protection violation—
Hitchcock is not being treated differently based on his status as an
inmate whose conviction has become final. See also Willacy v.
State, No. SC2026-0519, 2026 WL 1021168, at *6 (Fla. Apr. 15,
2026) (holding denial of public records request relating to Florida’s
lethal injection protocol did not violate equal protection, where
request was not related to any colorable claim for postconviction
relief), cert. denied, No. 25-7220, 2026 WL 1074143 (U.S. Apr. 21,
2026). And to the extent Hitchcock alleges an Eighth Amendment
violation, we reject that argument too. Instead, his status as a
capital postconviction movant makes available to him a streamlined
method of seeking public records, if those documents are
reasonably calculated to lead to the discovery of admissible
evidence. Because rule 3.852 only supplements instead of
supplants chapter 119, the circuit court did not err in denying
Hitchcock’s requests.
c
Hitchcock next argues that even if the colorable claim
limitation applies to his public records requests, he has met it.
Again, Hitchcock is mistaken.
- 29 - Hitchcock’s alleged colorable claim is a method-of-execution
claim. To challenge a method of execution under the Eighth
Amendment’s prohibition of cruel and unusual
punishment, Hitchcock must “(1) establish that the method of
execution presents a substantial and imminent risk that is sure or
very likely to cause serious illness and needless suffering and (2)
identify a known and available alternative method of execution that
entails a significantly less severe risk of pain.” Asay v. State, 224
So. 3d 695, 701 (Fla. 2017) (citing Glossip v. Gross, 576 U.S. 863,
877 (2015)); Bucklew v. Precythe, 587 U.S. 119, 139-40
(2019) (reconfirming that anyone bringing a method-of-execution
claim alleging the infliction of unconstitutionally cruel pain must
meet the Baze16-Glossip test).
The most obvious defect with Hitchcock’s position is that he
has not even attempted to identify a known and available
alternative method of execution that entails a significantly less
severe risk of pain. There is no viable claim alleged to which his
public records requests would be relevant.
16. Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion).
- 30 - Secondly, his allegations that the public records would be
relevant to establishing the first prong of the Baze-Glossip
framework rely on a speculative leap that we have recently rejected.
Hitchcock argues that the affidavit of Dr. Buffington attached to his
postconviction motion supports the assertion that
maladministration of the lethal injection protocol and “error or
deviation could result in unnecessary pain or discomfort or an
unexpected termination of the execution procedure prior to the
inmate’s death.” But the affidavit contains the same logical gaps
evident in the affidavits relied on in Trotter v. State, 428 So. 3d 68,
73 (Fla.), cert. denied, 146 S. Ct. 755 (2026), and Heath v. State,
426 So. 3d 1253, 1262 (Fla. 2026) (“The question is not whether
protocol deviations occurred but whether the defendant’s
allegations would demonstrate a substantial and imminent risk that
is sure or very likely to cause serious illness and needless suffering.
Heath’s allegations would not demonstrate such a risk.”), cert.
denied, No. 25-6746, 2026 WL 363902 (U.S. Feb. 10, 2026). We
reject that argument again here.
d
Because we conclude Hitchcock’s failure to establish that the
- 31 - public records he sought were related to a colorable claim for relief,
the circuit court did not err in denying an in-camera inspection or
in sustaining objections from FDOC and FDLE.
Finally, we reject Hitchcock’s remaining arguments on appeal.
Hitchcock asserts his actual innocence claim, contending his
execution in turn would be cruel and unusual. We have already
said that we do not recognize an independent claim of actual
innocence in postconviction proceedings. Sweet v. State, 293 So.
3d 448, 453-54 (Fla. 2020) (citing Elledge v. State, 911 So. 2d 57,
78 (Fla. 2005)). We have also held that Florida’s refusal to
recognize postconviction actual innocence claims does not violate
the Eighth Amendment. Id. at 454 (citing Tompkins, 994 So. 2d at
1088-89). Hitchcock does little to acknowledge our precedent on
this issue, let alone provide any reason we should recede from it.
So we reject his argument.
We likewise reject his argument that declining to consider the
merits of his actual innocence claim results in a manifest injustice
because it violates his due process rights under the Fifth and
Fourteenth Amendments to the U.S. Constitution. Hitchcock has
- 32 - received the process due to him, has been adjudicated guilty, and
has been sentenced to death. Hitchcock has also had the
opportunity to pursue claims of newly discovered evidence. See,
e.g., Tompkins, 994 So. 2d at 1089. There is no due process
violation, and the circuit court correctly rejected this claim.
III
We affirm the summary denial of Hitchcock’s successive
motion for postconviction relief and the order denying his public
records requests. We also deny his motion for stay of execution.
No oral argument is necessary, and no motion for rehearing will be
considered by this Court. The mandate shall issue immediately.
It is so ordered.
MUÑIZ, C.J., and LABARGA, COURIEL, GROSSHANS, FRANCIS, SASSO, and TANENBAUM, JJ., concur.
An Appeal from the Circuit Court in and for Orange County, Keith Carsten, Judge Case No. 481976CF001942000AOX
Eric Pinkard, Capital Collateral Regional Counsel, Joshua P. Chaykin, Assistant Capital Collateral Regional Counsel, Cortney L. Hackett, Assistant Capital Collateral Regional Counsel, and Christopher Clemente, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,
for Appellant
- 33 - James Uthmeier, Attorney General, Tallahassee, Florida, Timothy A. Freeland, Special Counsel, Assistant Attorney General, and Jennifer A. Davis, Senior Assistant Attorney General, Tampa, Florida,
for Appellee
- 34 -