Supreme Court of Florida
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No. SC19-1275
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HAROLD LEE HARVEY, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
February 4, 2021
PER CURIAM.
Harold Lee Harvey, Jr., appeals an order of the circuit court denying his
second successive postconviction motion filed under Florida Rule of Criminal
Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
BACKGROUND
In 1986, a jury found Harvey guilty of two counts of first-degree murder,
and Harvey was sentenced to death. This Court affirmed the judgment and
sentence on direct appeal. Harvey v. State, 529 So. 2d 1083 (Fla. 1988). Harvey’s
sentence became final on February 21, 1989, when the United States Supreme
Court denied certiorari review. Harvey v. Florida, 489 U.S. 1040 (1989). This
Court subsequently affirmed the denial of Harvey’s first two postconviction
motions seeking relief under rule 3.851. Harvey v. State, 946 So. 2d 937 (Fla.
2006); Harvey v. State, 260 So. 3d 906 (Fla. 2018).
Now, in his second successive postconviction motion, Harvey argues that he
is entitled to a new trial because counsel conceded guilt to first-degree murder
without giving Harvey notice and the opportunity to object. Harvey bases this
claim on the Supreme Court’s decision in McCoy v. Louisiana, 138 S. Ct. 1500
(2018), which we explain below. Harvey acknowledges that he raised a similar
argument in his initial postconviction motion, where Harvey unsuccessfully
alleged ineffective assistance of counsel. But Harvey distinguishes the claim here
on the ground that a McCoy error is structural and not subject to analysis under the
test of Strickland v. Washington, 466 U.S. 668 (1984).
The trial court denied the motion, finding McCoy distinguishable because
counsel in that case conceded guilt over the defendant’s adamant objection. The
trial court also found two alternative grounds for denying the motion: first, that the
motion was untimely; and second, that McCoy does not meet the test for
retroactive application. As to the first alternative ground, the trial court held that
the rule 3.851(d)(2)(B) exception to the one-year filing requirement does not apply
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because McCoy has not yet been held to apply retroactively.1 Harvey now appeals
the denial of his motion.
ANALYSIS
Harvey’s claim here is indistinguishable from the one that this Court
recently rejected in Atwater v. State, 300 So. 3d 589 (Fla. 2020). 2 Like Harvey, the
defendant in Atwater sought relief under McCoy. Like Harvey, the defendant in
Atwater faulted trial counsel for failing to obtain consent to the trial strategy of
conceding guilt. And like Harvey, the defendant in Atwater did not allege that trial
counsel conceded guilt over the defendant’s express objection. We held in Atwater
that claims of this nature are facially insufficient to warrant relief under McCoy.
Id. at 591.
In Atwater, we explained that “the Supreme Court in McCoy did not hold
that counsel is required to obtain the express consent of a defendant prior to
1. Florida Rule of Criminal Procedure 3.851 requires that any
postconviction motion challenging a judgment of conviction and sentence of death
must be filed within one-year after the judgment and sentence become final,
subject to certain exceptions including that “the fundamental constitutional right
asserted was not established within the [1-year period] and has been held to apply
retroactively.” Fla. R. Crim. P. 3.851(d)(2)(B).
2. “We review a circuit court’s summary rejection of a postconviction claim
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.’ ” Dailey v. State, 279 So. 3d 1208, 1215
(Fla. 2019) (quoting Pardo v. State, 108 So. 3d 558, 561 (Fla. 2012)).
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conceding guilt.” Id. at 590. Instead, the holding of McCoy is that if a defendant
“expressly asserts that the objective of ‘his defence’ is to maintain innocence of the
charged criminal acts, his lawyer must abide by that objective and may not
override it by conceding guilt.” McCoy, 138 S. Ct. at 1509 (quoting U.S. Const.
amend. VI). The defendant in McCoy “vociferously insisted that he did not engage
in the charged acts and adamantly objected to any admission of guilt.” Id. at 1505.
Given those facts, the Supreme Court found that counsel’s concession of guilt
violated McCoy’s “[a]utonomy to decide that the objective of the defense is to
assert innocence.” Id. at 1508.
Harvey’s claim is not a McCoy claim, because Harvey does not allege that
trial counsel conceded guilt over Harvey’s express objection. Rather, Harvey
simply alleges that trial counsel failed to consult with him in advance. But, as we
also explained in Atwater, “counsel’s duty to discuss trial strategy with the
defendant was established long before the Supreme Court’s decision in McCoy.”
Atwater, 300 So. 3d at 591.
Thus, even accepting all of Harvey’s factual allegations as true, McCoy
would not entitle Harvey to relief. In light of this conclusion, we need not address
the alternative grounds that the postconviction court offered in support of its ruling,
including the finding that Harvey’s motion was untimely.
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CONCLUSION
We affirm the denial of Harvey’s second successive postconviction motion.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL,
and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Okeechobee County,
Michael Carlton Heisey, Judge - Case No. 471985CF000075CFAXMX
Ross B. Bricker of Jenner & Block LLP, Chicago, Illinois,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Rhonda Giger,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee
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Harold Lee Harvey, Jr. v. State of Florida
Combined Opinion