Schwab v. State
v.
STATE OF FLORIDA, Appellee.
An Appeal from the Circuit Court in and for Brevard County, Charles M. Holcomb, Judge — Case No. 05-1991-7249-AXXX.
John W. Jennings, Capital Collateral Regional Counsel, Peter J. Cannon, Mark S. Gruber, and Daphney Gaylord, Assistant CCR Counsel-Middle Region, Tampa, Florida, for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, Florida, for Appellee
PER CURIAM.
Mark Dean Schwab, a prisoner under sentence of death, appeals the circuit court’s order denying his third successive motion for postconviction relief, which was filed pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons stated below, we affirm the circuit court’s order denying relief.
Schwab was convicted of first-degree premeditated murder, sexual battery of a child, and kidnapping, after murdering eleven-year-old Junny Rios-Martinez in April 1991, and he was sentenced to death. This Court set forth the procedural history of this case in Schwab v. State, 33 Fla. L. Weekly S67 (Jan. 24, 2008), and Schwab v. State, 969 So. 2d 318 (Fla. 2007), cert. denied, 76 U.S.L.W. 3620 (May 19, 2008). Schwab’s execution was initially scheduled for November 15, 2007, but the United States Supreme Court issued a stay while it considered a challenge to Kentucky’s lethal injection protocol in Baze v. Rees, No. 07-5439. The United States Supreme Court denied the Eighth Amendment challenge to Kentucky’s lethal injection protocols, see Baze v. Rees, 128 S. Ct. 1520 (2008), and thereafter denied Schwab’s petition for a writ of certiorari and dissolved the stay. See Schwab v. Florida, 76 U.S.L.W. 3620 (May 19, 2008) (denying petition for writ of certiorari, which automatically terminated the stay pursuant to prior order in Schwab v. Florida, 128 S. Ct. 644 (2007)).
Governor Charlie Crist rescheduled Schwab’s execution, setting it for July 1, 2008. Schwab then filed a third successive motion for postconviction relief, again challenging whether Florida’s lethal injection protocol violates the Eighth Amendment. The circuit court denied the motion in a comprehensive order, and we affirm the circuit court’s denial of relief, which we attach and adopt. We agree with the circuit court that Schwab failed to allege newly discovered evidence that would result in a decision different than that reached in Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007), cert. denied, 76 U.S.L.W. 3620 (May 19, 2008), and Schwab, 969 So. 2d at 326. The circuit court’s decision is consistent with our recent decisions in Lebron v. State, 33 Fla. L. Weekly S294 (Fla. May 01, 2008); Woodel v. State, 33 Fla. L. Weekly S290 (Fla. May 01, 2008); and Griffin v. State, No. SC06-1055, 2008 WL 2415856 (Fla. June 2, 2008).
No motion for rehearing will be entertained by the Court. The mandate shall issue immediately.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.