POPE v. STATE, SC07-2413 (Fla. 1-19-2010)

Case No. SC07-2413.Supreme Court of Florida.
January 19, 2010.

Lower Tribunal No(s). 81-3047-CF.

Thomas Dewey Pope appeals an order of the circuit court summarily denying his third successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. In his motion, Pope asserted that a 2006 report from the American Bar Association (ABA) constitutes newly discovered evidence that Florida’s death penalty scheme is unconstitutional. Pope also asserts that section 922.105, Florida Statutes (2005), Florida’s lethal injection statute, is unconstitutional and the 2006 lethal injection protocols violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

As to Pope’s claim concerning the lethal injection protocols, the 2006 protocols were revised by the Department of Corrections and are no longer in effect. As such, this issue is moot. The remaining claims raised by Pope have been previously reviewed and rejected by this Court or are procedurally barred. See Diaz v. State, 945 So. 2d 1136 (Fla. 2006) (holding, in part, (1) Florida’s lethal injection statute is not unconstitutional and (2) the ABA report was not newly discovered evidence and claims based on the information contained in the report were procedurally barred).

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Accordingly, the trial court’s denial of postconviction relief is hereby affirmed. It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

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