Robert Joe Long v. State of Florida

Supreme Court of Florida
____________

No. SC19-726
____________

ROBERT JOE LONG,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

May 17, 2019

PER CURIAM.

Robert Joe Long a/k/a Bobby Joe Long, a prisoner under sentence of death

and an active death warrant, appeals the postconviction court’s order denying his

third successive motion for postconviction relief filed under Florida Rule of

Criminal Procedure 3.851. We have jurisdiction, see art. V, § 3(b)(1), Fla. Const.,

and affirm for the reasons below.

BACKGROUND

Long pleaded guilty to the 1984 first-degree murder, kidnapping, and sexual

battery of Michelle Simms and was thereafter sentenced to death for Simms’s

murder in accordance with his jury’s unanimous recommendation. See Long v.
State, 529 So. 2d 286 (Fla. 1988); Long v. State, 610 So. 2d 1268 (Fla. 1992).1

Long’s sentence of death for Simms’s murder has been final since 1993. See Long

v. Florida, 510 U.S. 832 (1993). In the decades since, Long has unsuccessfully

challenged his convictions and death sentence numerous times. See Long v. State,

118 So. 3d 798 (Fla. 2013) (affirming denial of initial rule 3.851 motion); Long v.

State, 183 So. 3d 342 (Fla. 2016) (affirming denial of first successive rule 3.851

motion); Long v. State, 235 So. 3d 293 (Fla. 2018) (affirming denial of second

successive rule 3.851 motion).2

Long filed his current challenge to his death sentence—his third successive

under rule 3.851—after the governor signed his death warrant on April 23, 2019.

After holding an evidentiary hearing on Long’s as-applied challenge to Florida’s

lethal injection protocol, the postconviction court denied his motion. This appeal

followed.

1. Long’s death warrant carries out the sentence imposed for Simms’s first-
degree murder. However, as this Court has explained, Long is a serial killer
who—at the same time he pleaded guilty to his crimes against Simms—pleaded
guilty in seven other cases to first-degree murder, plus other crimes against those
victims, and to the kidnapping and sexual battery of an eighth victim who was not
murdered. See Long, 529 So. 2d at 288 (“Long received life sentences on every
count of each [of these other] case[s] and a five-year sentence on [a] probation
revocation charge.”).

2. Long’s federal petition for a writ of habeas corpus was also denied, and
the Eleventh Circuit Court of Appeals denied a certificate of appealability. Long v.
Sec’y, Fla. Dep’t of Corr., No. 16-16259-P (11th Cir. Jan. 4, 2017) (unpublished).

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 ANALYSIS

In this appeal, Long argues that the postconviction court erred (1) in

summarily denying his claim that scientific advances in the assessment,

quantification, and consequences of brain injury and brain damage since his 1989

sentencing constitute newly discovered evidence requiring a new sentencing

proceeding; (2) in denying his as-applied challenge to Florida’s lethal injection

protocol and in summarily denying his challenges to Florida’s use of a three-drug

protocol and use of etomidate; (3) in summarily denying his claim that adding

execution to the length of time he has spent on death row violates the Eighth and

Fourteenth Amendments and binding norms of international law; (4) in denying

him Hurst 3 relief; (5) in refusing to order the Florida Department of Corrections

(DOC) to comply with his requests related to defense execution witnesses; (6) in

denying his claim that the Eighth Amendment categorically exempts him from

execution because he suffers from severe traumatic brain injury and severe mental

illness; and (7) in denying certain of his post-warrant public records requests.

None of these claims warrants relief.

3. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State (Hurst), 202 So.
3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).

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 (1) Newly Discovered Evidence

Long first argues that scientific advances in the assessment, quantification,

and consequences of brain injury and brain damage since his 1989 sentencing

constitute newly discovered evidence entitling him to a new penalty phase and that

the postconviction court erred in failing to grant an evidentiary hearing on this

claim. We disagree.

We have explained the standard of review applicable to the summary denial

of a postconviction motion as follows:

A postconviction motion may be summarily denied only “[i]f the
motion, files, and records in the case conclusively show that the
movant is entitled to no relief.” Fla. R. Crim. P. 3.851(f)(5)(B),
(h)(6); see also Parker v. State, 904 So. 2d 370, 376 (Fla. 2005) (“As
a general proposition, a defendant is entitled to an evidentiary hearing
on any well-pled allegations in a motion for postconviction relief
unless (1) the motion, files, and records in the case conclusively show
that the prisoner is entitled to no relief, or (2) the motion or a
particular claim is legally insufficient.”). “Because a postconviction
court’s decision whether to grant an evidentiary hearing on a rule
3.851 motion is ultimately based on written materials before the court,
its ruling is tantamount to a pure question of law, subject to de novo
review.” Marek v. State, 8 So. 3d 1123, 1127 (Fla. 2009). In
reviewing a trial 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). However, mere conclusory allegations do not
warrant an evidentiary hearing. Anderson v. State, 220 So. 3d 1133,
1142 (Fla. 2017); see also LeCroy v. Dugger, 727 So. 2d 236, 238
(Fla. 1998) (“[S]peculation and conjecture about what . . . letters and
notes and opinions and cryptic references may suggest is not sufficient
to warrant an evidentiary hearing, much less relief.”) (quoting trial
court’s order).

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Jimenez v. State, 265 So. 3d 462, 480-81 (Fla.), cert. denied, 139 S. Ct. 659

(2018).4

To establish that he is entitled to a new penalty phase based on newly

discovered evidence, Long must make the two-prong showing required by Jones v.

State, 709 So. 2d 512 (Fla. 1998), namely:

First, in order to be considered newly discovered, the evidence “must
have been unknown by the trial court, by the party, or by counsel at
the time of trial, and it must appear that defendant or his counsel could
not have known [of it] by the use of diligence.” Second, the newly
discovered evidence must be of such nature that it would probably
produce an acquittal on retrial.

Id. at 521 (citation omitted) (quoting Torres-Arboleda v. Dugger, 636 So. 2d 1321,

1324-25 (Fla. 1994)). Because Long is seeking to vacate his death sentence, not

his conviction, Jones’s second prong “requires that the newly discovered evidence

would probably yield a less severe sentence.” Walton v. State, 246 So. 3d 246, 249

(Fla. 2018) (quoting Swafford v. State, 125 So. 3d 760, 767 (Fla. 2013)).

The record conclusively shows that Long cannot satisfy either prong of the

Jones test. First, the evidence is not newly discovered. Rather, as the

postconviction court found, “[Long] has waited more than 30 years and until after

the issuance of his death warrant to first raise this claim,” even though he “has

4. This standard governs our review of the postconviction court’s denial of
every claim at issue in this appeal, except claim 2(A), which the court denied after
an evidentiary hearing, and claim 7 regarding Long’s challenge to the court’s
rulings on his public records requests.

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clearly been aware of his TBI [traumatic brain injury] and temporal lobe epilepsy

diagnoses since the [1989] penalty phase” and has filed an initial and two

successive postconviction motions since then. See Long, 610 So. 2d at 1271-72

(summarizing the mental health evidence presented during Long’s penalty phase).

Although the field of neuroscience is constantly evolving, and although Long

relied on two tests that became available within the last year—NeuroQuant

imaging and a new test for chronic traumatic encephalopathy (CTE)—to support

his request for an evidentiary hearing, the attachments to his motion reference

research and studies much older than one year prior to the date that Long filed his

motion, and none of them state that the NeuroQuant imaging or new CTE test are

the advances critical to Long’s claim. Accordingly, the record in this case

conclusively shows that, with the exercise of due diligence, Long could have

pursued this claim years before his death warrant was signed. Cf. Branch v. State,

236 So. 3d 981, 986 (Fla. 2018) (explaining that “scientific research with respect to

brain development does not qualify as newly discovered evidence” if based on

previously available data); Morton v. State, 995 So. 2d 233, 245-46 (Fla. 2008)

(“Although this 2004 brain mapping study had not yet been published at the time

of [the defendant’s] trials, [the defendant] or his counsel could have discovered

similar research at that time that stated that the human brain was not fully

developed until early adulthood.”); Schwab v. State, 969 So. 2d 318, 325-26 (Fla.

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2007) (stating that “this Court has not recognized ‘new opinions’ or ‘new research

studies’ as newly discovered evidence” in holding that “recent scientific articles

regarding brain anatomy and sexual offense” were not newly discovered evidence).

However, even if Long could meet the first prong of Jones, he could not

meet the second. As the postconviction court found, Long “already presented

testimony and evidence regarding [his] TBI and temporal lobe epilepsy at his

[1989] penalty phase,” and Long’s “jury still unanimously recommended that the

death penalty be imposed.” In light of this testimony, the sentencing court found

that Long had established the two statutory mental health mitigators. Long, 610

So. 2d at 1272 (finding, as mitigating circumstances, “(1) that Long’s capacity to

appreciate the criminality of his conduct or conform his actions to the law was

substantially impaired, and (2) that the capital felony was committed while Long

was under the influence of extreme mental or emotional disturbance”). However,

the sentencing court relied on evidence of the “deliberate steps [Long] took to

accomplish his nefarious scheme of seeking out, abducting, sexually battering and

then killing [the victim],”—plus evidence that Long told the State’s mental health

expert that he “would not have committed this crime” had he “encountered a police

officer prior to the murder of [the] victim”—to conclude that Long did not “lack[]

the cognitive volitional and moral capacity to act with the degree of culpability

associated with the imposition of a sentence of death.” Id. at 1273. None of the

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scientific advances at issue establishes that traumatic brain injury or temporal lobe

epilepsy is the sole cause of offenses such as those that Long committed against

the victim in this case; nor do they negate the sentencing court’s finding that the

evidence is inconsistent with Long’s claim that he could not control his behavior.

In light of the evidence that would be available in any resentencing proceeding,

including evidence establishing some of the weightiest aggravators in Florida’s

capital sentencing scheme, 5 the alleged newly discovered evidence is not of such a

nature that it would probably yield a less severe sentence in a new penalty phase.

Accordingly, we affirm the postconviction court’s summary denial of this

claim.

(2) Lethal Injection Protocol

(A) As-Applied Challenge

In the first of his three challenges to Florida’s lethal injection protocol, Long

argues that his traumatic brain injury and temporal lobe epilepsy render the use of

etomidate in his execution unconstitutional under the Eighth Amendment. The

postconviction court held an evidentiary hearing on this claim; therefore, “[a]s long

5. The sentencing court found the following aggravating circumstances: “(1)
that the crime was committed while Long was engaged in the commission of a
kidnapping; (2) that the crime was especially heinous, atrocious, or cruel; (3) that
Long was previously convicted of a felony involving the use or threat of violence;
and (4) that the crime was committed in a cold, calculated, and premeditated
manner.” Long, 610 So. 2d at 1272.

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as the [postconviction] court’s findings are supported by competent substantial

evidence, ‘this Court will not substitute its judgment for that of the

[postconviction] court on questions of fact, likewise of the credibility of the

witnesses as well as the weight to be given the evidence by the [postconviction]

court.’ ” Brown v. State, 258 So. 3d 1201, 1206 (Fla. 2018) (quoting Blanco v.

State, 702 So. 2d 1250, 1252 (Fla. 1997)).

As this Court has explained, to prevail on an Eighth Amendment method of

execution challenge, “a condemned prisoner 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 (Asay VI), 224 So. 3d 695, 701 (Fla. 2017) (citing Glossip v. Gross,

135 S. Ct. 2726, 2737 (2015); Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality

opinion)); see also Bucklew v. Precythe, 139 S. Ct. 1112, 1129 (2019)

(“(re)confirm[ing] that anyone bringing a method of execution claim alleging the

infliction of unconstitutionally cruel pain must meet the Baze-Glossip test”).

In Long’s case, competent, substantial evidence supports the postconviction

court’s findings that he failed to make either of the required showings.

Specifically, in finding that Long failed to establish that the use of etomidate

presents a substantial and imminent risk that is sure or very likely to cause serious

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illness and needless suffering, the postconviction court found the testimony of the

State’s expert, Dr. Yun, “to be more credible” than that of Long’s expert, Dr.

Lubarsky:

The Court finds credible Dr. Yun’s testimony that the massive dose of
200 milligrams of etomidate would produce such a deep state of burst
suppression and unconsciousness that it would eliminate any possible
seizure activity, and render a person—even someone with traumatic
brain injury and/or temporal lobe epilepsy—unaware of noxious
stimuli. Even if Defendant had a seizure, the Court finds credible Dr.
Lubarsky’s testimony that the seizure itself is not painful, as well as
Dr. Yun’s testimony that Defendant would be unconscious and
insensate. The Court further finds more credible Dr. Yun’s testimony
that 200 milligrams of etomidate would render a person unconscious
for at least 30 minutes, rather than the maximum of 8 minutes asserted
by Dr. Lubarsky. The Court further finds the possible risks associated
with the “cascade of events” described by Dr. Lubarsky is highly
speculative. Defendant has not shown that if he is administered 200
milligrams of etomidate, he is likely to have a seizure, even a partial
undetectable seizure as described by Dr. Wood. And, although
Defendant has been diagnosed with TBI and temporal lobe epilepsy,
there is no testimony or evidence reflecting that Defendant has a
history of the pronounced or violent seizures that would dislodge his
IV lines, or any seizure history at all.[n.3] Even if Defendant had such
a seizure, the lethal injection protocol requires that an inmate be
restrained and the IV lines taped.

[N.3] The Court further notes that during the penalty
phase, defense expert Dr. Money, who diagnosed
Defendant with temporal lobe epilepsy, testified that
temporal lobe epilepsy does not cause seizures but causes
one to enter an altered state of consciousness. See Long,
610 So. 2d at 1271.

Although Long argues that events during recent executions discredit the

testimony on which the postconviction court relied because “it is clear that inmates

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were not sufficiently anesthetized,” these are the type of “speculative and

conclusory allegations” that we have held are insufficient to warrant an evidentiary

hearing, let alone relief. Jimenez, 265 So. 3d at 475. Moreover, we have

repeatedly recognized that DOC is entitled to the presumption that it will comply

with the lethal injection protocol, see, e.g., Muhammad v. State, 132 So. 3d 176,

203 (Fla. 2013), and the protocol includes safeguards to ensure the condemned is

unconscious throughout the execution.

Regarding the second required showing, Long argues that Florida’s refusal

to try to obtain alternative drugs pentobarbital and fentanyl does not mean that they

are not feasible or available. However, competent, substantial evidence supports

the postconviction court’s finding that Long failed to identify a known and

available alternative method of execution that entails a significantly less severe risk

of pain. Specifically, the postconviction court found that the existence of protocols

in other states using pentobarbital

do[es] not demonstrate that pentobarbital is feasible and readily
implemented here in Florida. The Court finds credible Mr.
Whitfield’s testimony that neither pentobarbital nor fentanyl is readily
available to DOC. Although [defense expert] Dr. Raymond’s
testimony reflected that pentobarbital or fentanyl could be purchased
or compounded by a licensed, registered Florida pharmacist, he did
not testify that those medications are available for purchase by DOC
or that those medications meet the FDA criteria for compounding. As
in Bucklew, Defendant’s allegations regarding pentobarbital and
fentanyl rest on unsupported speculation and are affirmatively
contradicted by the evidence. The Court further finds Defendant has
failed to present any testimony or evidence that the use of either

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 pentobarbital or fentanyl entails a significantly less severe risk of
pain.

Accordingly, we affirm the postconviction court’s denial of this claim.

(B) Three-Drug Protocol

In his second challenge to Florida’s lethal injection protocol, Long argues

that the postconviction court erred in summarily denying his claim that Florida’s

use of a three-drug protocol instead of a one-drug protocol violates evolving

standards of decency under the Eighth Amendment. The postconviction court did

not err. As we have explained, “Florida’s current protocol does not violate the

constitution simply because other states have altered their methods of lethal

injection.” Muhammad, 132 So. 3d at 196-97 (“[B]efore it could be said that

Florida must adopt a one-drug protocol, the current three-drug lethal injection

protocol must be determined to present ‘a substantial risk of serious harm’ under

Baze.”); see also Jimenez, 265 So. 3d at 475 (“[W]e have consistently rejected

[the] challenge that the DOC should substitute the current three-drug protocol with

a one-drug protocol.”) (quoting Hannon v. State, 228 So. 3d 505, 509 (Fla. 2017)).

(C) Use of Etomidate

In his final challenge to the lethal injection protocol, Long argues that the

postconviction court erred in summarily denying his claim that Florida’s use of

etomidate as the first of three drugs in the protocol places him at substantial risk of

serious harm in violation of the Eighth Amendment. He further urges this Court to

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remand for an evidentiary hearing to review the use of etomidate. The

postconviction court properly summarily denied this claim.

Since approving the current lethal injection protocol in Asay VI, we have

repeatedly affirmed the summary denial of challenges to the protocol, including

challenges to the use of etomidate as the first drug in the protocol. See, e.g.,

Jimenez, 265 So. 3d at 474; Hannon, 228 So. 3d at 508-09. Neither disagreement

among experts about the risks associated with etomidate nor “speculative and

conclusory” allegations regarding whether reactions to etomidate occurred during

recent executions “require revisiting [this Court’s] holding in Asay VI approving

the constitutionality of lethal injection as currently administered in Florida.”

Jimenez, 265 So. 3d at 475 (“[I]t is impossible to know whether Branch’s actions

were in protest of his execution or a reaction to etomidate, such as the ‘transient

venous pain on injection and transient skeletal movements, including myoclonus’

recognized among the ‘most frequent adverse reactions’ in Asay VI, 224 So. 3d at

701.”).

Accordingly, we affirm the summary denial of this claim.

(3) Length of Time on Death Row

Long next argues that the postconviction court erred in summarily denying

his claim that adding his execution to the more than 30 years he has spent on death

row constitutes cruel and unusual punishment in violation of the Eighth and

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Fourteenth Amendments to the United States Constitution and binding norms of

international law. We have repeatedly rejected similar claims, see, e.g., Gore v.

State, 91 So. 3d 769, 780 (Fla. 2012), and Long’s arguments do not warrant

receding from our precedent. Accordingly, we affirm the summary denial of this

claim.

(4) Hurst

In his fourth claim, Long argues that denying him the retroactive application

of Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla.

2016), cert. denied, 137 S. Ct. 2161 (2017), violates the Eighth and Fourteenth

Amendments. Long previously—and unsuccessfully—sought relief from his

sentence of death pursuant to the Hurst decisions. See Long v. State, 235 So. 3d

293 (Fla.), cert. denied, 139 S. Ct. 162 (2018). Accordingly, as the postconviction

court correctly ruled, Long’s Hurst claims are untimely, successive, and

procedurally barred. Therefore, we affirm their summary denial.

(5) Defense Execution Witnesses

Long next argues that the postconviction court’s refusal to require DOC to

comply with certain of his requests pertaining to defense witnesses at his

execution 6 violates his rights under the Sixth and Eighth Amendments to the

6. Long requested (1) that one of his designated legal witnesses be allowed
access to a writing pad and pen during his execution; (2) that his designated legal
witness be allowed access to a telephone before and during the execution process;

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United States Constitution. We disagree. “The DOC is entitled to a presumption

that it will properly perform its duties while carrying out an execution. . . . [and]

our ‘role is not to micromanage the executive branch in fulfilling its own duties

relating to executions.’ ” Hannon, 228 So. 3d at 509 (quoting Troy v. State, 57 So.

3d 828, 840 (Fla. 2011)); see also art. 2, § 3, Fla. Const. (“The powers of the state

government shall be divided into legislative, executive and judicial branches. No

person belonging to one branch shall exercise any powers appertaining to either of

the other branches unless expressly provided herein.”). Because Long has not

demonstrated that DOC’s existing policies and procedures violate his constitutional

rights, mindful that separation of powers principles preclude us from performing

the executive function of establishing a procedure to be used for executions, we

hold that the postconviction court did not err in refusing to direct DOC to comply

with Long’s requests.

(6) Categorical Exemption from Execution

As his sixth claim, Long argues that evolving standards of decency require

that he be exempted from the death penalty because of his severe traumatic brain

injury, which he contends is equivalent to severe mental illness. We have

previously rejected similar Eighth Amendment claims raised for the first time in

(3) that he be afforded a second witness to his execution; and (4) that one of his
witnesses be allowed to view the IV insertion process.

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postconviction proceedings as untimely, procedurally barred, and without merit.

See, e.g., Carroll v. State, 114 So. 3d 883, 886 (Fla. 2013); Simmons v. State, 105

So. 3d 475, 510-11 (Fla. 2012); Johnston v. State, 27 So. 3d 11, 26 (Fla. 2010).

Long’s arguments, raised in his third successive postconviction motion, do not

warrant receding from our precedent. Accordingly, we affirm the postconviction

court’s denial of this claim.

(7) Public Records

In his final claim, Long challenges the postconviction court’s rulings on his

post-warrant public records requests to three agencies pursuant to Florida Rule of

Criminal Procedure 3.852(i). Specifically, Long argues that the postconviction

court violated his rights to due process and equal protection under the Fourteenth

Amendment to the United States Constitution and the corresponding provisions of

the Florida Constitution because the postconviction court denied him a fair

opportunity to show that his execution will violate the Eighth Amendment (1) by

refusing to require that the medical examiner, the Florida Department of Law

Enforcement (FDLE), and DOC either deposit the requested records in the

repository or state, in an affidavit pursuant to rule 3.852(h), that the requested

items do not exist; (2) by ruling that some of his requests related to his challenges

to Florida’s lethal injection protocol were overbroad and would not lead to a

colorable claim; and (3) by denying Long’s request for an in-camera inspection of

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responsive documents that existed but to which Long was denied access. We

review the postconviction court’s rulings for abuse of discretion, see Hannon, 228

So. 3d at 511, and find none.

Firstly, Long’s public records requests to the agencies at issue were pursuant

to rule 3.852(i). That rule is entirely separate from and does not impose the

affidavit requirement of rule 3.852(h)(3). See Fla. R. Crim. P. 3.852(i)

(establishing procedure for “obtain[ing] public records in addition to” those

provided under various other subdivisions of rule 3.852, including subdivision (h))

(emphasis added); see also Hannon, 228 So. 3d at 511 (explaining the different

purposes and requirements of rule 3.852(h) and (i)). But even if rule 3.852(h)(3)

did apply, which it does not, its affidavit requirement would not have been

triggered on the facts of this case, where the postconviction court sustained the

objections of two of the agencies in their entirety and the third agency produced

specific records as ordered by the postconviction court. See Fla. R. Crim. P.

3.852(h)(3) (requiring an affidavit only where there is no public record since the

defendant’s last public records request to the agency at issue “(A) that was not

previously the subject of an objection; (B) that was received or produced since the

previous request; or (C) that was, for any reason, not produced previously”).

Moreover, to the extent that Long is generally complaining that certain records

have not been deposited in the repository in the 20-plus years that the registry has

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existed, he has had decades to pursue this claim, and, in any event, this “Court has

long acknowledged that the public records procedure under Florida Rule of

Criminal Procedure 3.852 ‘is not intended to be a procedure authorizing a fishing

expedition for records unrelated to a colorable claim for postconviction relief.’ ”

Muhammad, 132 So. 3d at 200 (quoting Valle v. State, 70 So. 3d 530, 549 (Fla.

2011)).

Secondly, the postconviction court’s ruling that Long’s requests related to

his challenges to Florida’s lethal injection protocol—other than requests pertaining

to certain of his medical records—were overbroad and would not lead to a

colorable claim is consistent with our precedent. See Hannon, 228 So. 3d at 511-

12 (“[P]roduction of records relating to lethal injection are ‘unlikely to lead to a

colorable claim for relief [when] the challenge to the constitutionality of lethal

injection as currently administered in Florida has been fully considered and

rejected by the Court.’ ”) (quoting Walton v. State, 3 So. 3d 1000, 1014 (Fla.

2009)).

Thirdly, and finally, in rule 3.852 proceedings involving capital

postconviction public records production, the postconviction court has the

authority—but is not required—to conduct an in-camera inspection. See Fla. R.

Crim. P. 3.852(j)(2) (“In proceedings under this rule the trial court may . . . conduct

an in-camera inspection[.]”) (emphasis added). The postconviction court acted

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within its discretion here, where the additional records that Long requested related

to his challenges to the lethal injection protocol and were, thus, unlikely to lead to

a colorable claim given that the current protocol has been fully considered and

approved.

CONCLUSION

For the reasons above, we affirm the postconviction court’s order denying

Long’s third successive postconviction motion pursuant to rule 3.851. Having

fully considered the issues raised in this appeal, we deny Long’s request for oral

argument as moot. No rehearing will be entertained by this Court, and the mandate

shall issue immediately.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, LAGOA, and MUÑIZ,
JJ., concur.
LUCK, J., concurs in part and concurs in the judgment with an opinion.

LUCK, J., concurring in part and concurring in the judgment.

I agree we should affirm the trial court’s order denying Robert Joe Long’s

third successive motion for postconviction relief, and I agree that for all but one of

Long’s claims we should affirm for the reasons given in the majority opinion. The

one exception is Long’s fifth claim. I would affirm because the claim is not ripe

for our review.

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 Long, in his fifth claim, alleged that he sent a letter to the prison warden

requesting that: (1) his designated legal witness be allowed access to a pen and

pad during the execution; (2) his legal witness be allowed access to a telephone

before and during the execution; (3) he be afforded a second witness to the

execution; and (4) one of his witnesses be allowed to view the intravenous

insertion process. Long alleged that he “anticipates the grant of his request for his

designated witness to be allowed access to writing implements and the denial of all

other requests,” and based on the anticipated denial, the department would be

violating his Sixth and Eighth Amendment rights.

The state, in response, argued that the claim should be summarily denied

and questioned “whether this claim is ripe for review and/or appropriately raised in

a successive postconviction motion.” The trial court denied Long’s fifth claim,

noting that “postconviction counsel asserts only that he anticipates [the department

of corrections] will deny his requests, therefore, this claim may be premature.”

On appeal, the state again “questions whether this claim is ripe for review

and/or appropriately raised in a successive postconviction motion. As the lower

court noted, Long asserts only that he anticipates the [department of corrections]

will deny his requests, therefore, his claim may be premature.”

I agree claim five is premature. Taking the allegations in Long’s third

successive postconviction motion as true, as we must, the department of

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corrections has not ruled on Long’s requests, and until it does, there has been no

alleged violation of Long’s constitutional rights. There is currently nothing for us

to decide. See Philip J. Padovano, Florida Appellate Practice § 18:5 (2018 ed.)

(“If the litigation is not yet complete, and if factual or legal decisions yet to be

made may ultimately resolve the issue in another way, the appellate court may

conclude that the issue is not yet ripe for review and may decline to consider it on

that ground. As a general principle, the appellate court will not make a decision on

an issue that is not yet ripe for appellate review.” (footnote omitted)).

We don’t give advisory opinions on anticipated claims. See Sarasota-

Fruitville Drainage Dist. v. Certain Lands Within Said Dist. Upon Which

Drainage Taxes for the Year 1952 Have Not Been Paid, 80 So. 2d 335, 336 (Fla.

1955) (“It is a fundamental principle of appellate procedure that only actual

controversies are reviewed by direct appeal. We have repeatedly held that this

Court was not authorized to render advisory opinions except in the instances

require or authorized by the Constitution.” (citation omitted)); see also Padovano,

supra, at § 1.3 (“[T]he Florida courts have held that an appellate proceeding may

not be used as a method of obtaining the answer to an abstract legal issue. There

must be a real and substantial dispute and there must be a present need for

resolution. An appellate proceeding may not be used to obtain an advisory opinion

on an issue that may be in dispute in the future. The appellate courts have an

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independent duty to consider each of these issues in every case and to dismiss an

appeal or petition that does not present a genuine controversy.” (footnotes

omitted)). And we don’t decide issues that are not ready for us to decide. See,

e.g., King v. State, 211 So. 3d 866, 889 (Fla. 2017) (“The final matter raised in

King’s initial brief is that King may be incompetent by the time he is scheduled for

execution. Individuals who lack the mental capacity to understand their pending

execution and the reasons for it cannot be executed. However, as King

acknowledges, claims of future incompetence are not ripe until a death warrant has

been issued for a given individual. No warrant has been signed in this case;

therefore, this claim is not properly before us at this time.” (emphasis added)

(citations omitted)).

I would affirm the denial of Long’s fifth claim but I would do so on ripeness

grounds rather than ruling on the merits as the majority opinion does.

An Appeal from the Circuit Court in and for Hillsborough County,
Michelle Sisco, Judge - Case No. 291984CF013346000AHC

Robert A. Norgard of Norgard, Norgard & Chastang, Bartow, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Stephen D. Ake,
Senior Assistant Attorney General, and Christina Z. Pacheco, Assistant Attorney
General, Tampa, Florida,

for Appellee

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