Matthew Dettle v. State of Florida

Supreme Court of Florida
____________

No. SC2022-0417
____________

MATTHEW DETTLE,
Petitioner,

vs.

STATE OF FLORIDA,
Respondent.

October 24, 2024

COURIEL, J.

In Florida, it is a felony to use a computer or other device to

solicit a child, or a person believed to be a child, to engage in

unlawful sexual conduct. See § 847.0135(3), Fla. Stat. (2012). It is

also a felony to travel to meet a minor after such solicitation. See

§ 847.0135(4)(a), Fla. Stat. (2012). And it is a felony to use a two-

way communications device to facilitate or further the commission

of a felony. See § 934.215, Fla. Stat. (2012). In this case, Matthew

Dettle was charged with and convicted of all three of these offenses.

His conviction for the third offense was vacated. Before us he
argues that the two remaining convictions transgress the United

States Constitution’s promise that no person shall “be subject for

the same offense to be twice put in jeopardy of life or limb.” See

amend. V, U.S. Const. 1

Historically, Florida courts have varied in how they have

determined whether multiple convictions violate that constitutional

guarantee. Some have analyzed the evidentiary record to determine

whether a defendant’s convictions were based on the same or

separate conduct; others have looked only to the charging

1. Dettle also says his solicitation conviction violates our
State’s rules of court. See Fla. R. Crim. P. 3.850(a)(1) (grounds for a
postconviction motion may include that “the judgment was entered
or sentence was imposed in violation of the Constitution or laws of
the United States or the State of Florida”). But he does not
specifically allege a violation of the Florida Constitution, which
shares the United States Constitution’s guarantee against double
jeopardy. See art. 1, § 9, Fla. Const. (providing that “[n]o person
shall be . . . twice put in jeopardy for the same offense”); see also
Trappman v. State, 384 So. 3d 742, 746-47 (Fla. 2024) (explaining
that the double jeopardy clause in the Florida Constitution “was
intended to mirror [the] intention of those who framed the double
jeopardy clause of the fifth amendment” (alteration in original)
(quoting Carawan v. State, 515 So. 2d 161, 164 (Fla. 1987))); Valdes
v. State, 3 So. 3d 1067, 1069 (Fla. 2009) (“The constitutional
protection against double jeopardy is found in both article I, section
9, of the Florida Constitution and the Fifth Amendment to the
United States Constitution, which contain double jeopardy
clauses.”).
-2-
document, rejecting an alleged offense if it requires the State to

prove the same thing as another one charged. In Lee v. State, 258

So. 3d 1297, 1304 (Fla. 2018), we announced that a court must

review only the charging document to determine whether multiple

convictions violate a defendant’s constitutional right against double

jeopardy.

Today, we consider a certified question of great public

importance concerning the application of that rule: “Does the

holding in [Lee] provide retroactive relief in postconviction

proceedings pursuant to Fla. R. Crim. P. 3.850?” Dettle v. State

(Dettle II), 334 So. 3d 346, 347 (Fla. 1st DCA 2021).2

The answer is no: Lee does not apply retroactively to cases

that were already final when it was decided. Because the answer to

the certified question is the same whether we apply the retroactivity

standard we adopted in Witt v. State, 387 So. 2d 922 (Fla. 1980), or

the one set out by the United States Supreme Court in Teague v.

Lane, 489 U.S. 288 (1989) (plurality opinion), we need not choose

2. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
Because the certified question presents a pure question of law, our
review is de novo. See Ruiz v. Tenet Hialeah Healthsystem, Inc., 260
So. 3d 977, 981 (Fla. 2018).
-3-
between the two to resolve this case, even though the State urges

us to recede from the former and adopt the latter. 3

I

Matthew Dettle was charged in 2012 in a single three-count

information. Two years later, a jury found him guilty of each count.

Dettle appealed, including on double jeopardy grounds.

“The most familiar concept of the term ‘double jeopardy’ is that

the Constitution prohibits subjecting a person to multiple

prosecutions, convictions, and punishments for the same criminal

offense.” Valdes, 3 So. 3d at 1069 (noting, too, that “there is no

constitutional prohibition against multiple punishments for

different offenses arising out of the same criminal transaction as

long as the Legislature intends to authorize separate

punishments”). As we have recently explained, the U.S. Supreme

Court has “recognized three separate guarantees embodied in the

Double Jeopardy Clause”—namely, it “protects against a second

3. For good measure, the State also urges us to recede from
Lee, arguing it was wrongly decided on the merits. That issue is not
part of the certified question and need not be addressed to resolve
this case.

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prosecution for the same offense after acquittal, against a second

prosecution for the same offense after conviction, and against

multiple punishments for the same offense.” Trappman v. State,

384 So. 3d 742, 747 (Fla. 2024) (quoting Justs. of Bos. Mun. Ct. v.

Lydon, 466 U.S. 294, 306-07 (1984)). Dettle’s double jeopardy

concerns involve the last of these guarantees.

The First District Court of Appeal found that, “under the facts

of this case,” Dettle’s simultaneous convictions for traveling to meet

a minor after solicitation, and for unlawful use of a two-way

communications device, violated the prohibition against double

jeopardy. Dettle v. State (Dettle I), 218 So. 3d 910, 910 (Fla. 1st

DCA 2016). So the court vacated the latter conviction. But it

affirmed Dettle’s remaining two convictions “because the illegal acts

solicited [were] separate illegal acts in this case.” Id. at 910

(distinguishing State v. Shelley, 176 So. 3d 914 (Fla. 2015), which

held that dual convictions for solicitation and traveling after

solicitation based on the same conduct violate double jeopardy).

Dettle’s convictions became final in 2017. One year later, this

Court decided Lee v. State, 258 So. 3d 1297 (Fla. 2018). In Lee, as

discussed, we held that, “to determine whether multiple convictions
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of solicitation of a minor, unlawful use of a two-way

communications device, and traveling after solicitation of a minor

are based upon the same conduct for purposes of double jeopardy,

the reviewing court should consider only the charging document—

not the entire evidentiary record.” Id. at 1304.

Dettle, arguing that Lee should be given retroactive effect, filed

a postconviction motion under Florida Rule of Criminal Procedure

3.850. The trial court denied relief, finding that Lee did not apply

retroactively, and further denied Dettle’s subsequent motion for

rehearing. Dettle appealed. The First District affirmed in a per

curiam decision, concluding: “Lee does not apply retroactively to

cases such as [Dettle’s] that were already final when Lee was

decided.” Dettle II, 334 So. 3d at 346-47.

The First District denied Dettle’s subsequent motion for

rehearing and rehearing en banc. But it granted Dettle’s request to

certify the question of great public importance before us.

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II

Our holding in Lee does not apply retroactively.

A

We have said that “[n]ew rules of law announced by this Court

or the United States Supreme Court generally apply to all cases that

are pending on direct review or are otherwise not final”—they do

not, normally, apply retroactively. White v. State, 214 So. 3d 541,

549 (Fla. 2017). And for good reason. To give such rules

retroactive effect would bake into each conviction an “absence of

finality [that would] cast[] a cloud of tentativeness over the criminal

justice system, benefiting neither the person convicted nor society

as a whole.” Witt, 387 So. 2d at 925. The orderly administration of

justice and courts’ responsible stewardship of resources depend on

the finality of criminal convictions. See id. at 925 n.* (quoting

United States v. Addonizio, 442 U.S. 178 n.11 (1979)). Thus, we

have said that “[t]he importance of finality in any justice system,

including the criminal justice system, cannot be understated.” Id.

at 925; see also Teague, 489 U.S. at 309 (discussing finality as

“essential to the operation of our criminal justice system”).

-7-
There are, however, exceptions. In Witt, we relied on Linkletter

v. Walker, 381 U.S. 618 (1965), to fashion a retroactivity test that

applies “where a change of law is asserted as a ground for collateral

relief under Rule 3.850.” See 387 So. 2d at 929 n.24. The U.S.

Supreme Court subsequently abandoned Linkletter and, in Teague,

set forth a new federal retroactivity standard. Under both tests, we

arrive at the same conclusion: the rule we announced in Lee is not

of the exceptional kind to which we are bound to give retroactive

effect.

B

In Witt, we followed the U.S. Supreme Court’s Linkletter

analysis for determining retroactivity: consider the old rule, by

analyzing the extent to which it has been relied on, and the new

rule, by analyzing its purpose and how applying it retroactively

would affect the administration of justice. See id. at 926. The Witt

analysis starts with the understanding that a change of law does

not apply retroactively “unless the change: (a) emanates from this

Court or the United States Supreme Court, (b) is constitutional in

nature, and (c) constitutes a development of fundamental

significance.” Id. at 931. Because Lee, a decision of this Court,
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involves the constitutional issue of double jeopardy, the parties

agree that the retroactivity analysis we must undertake here hinges

on the third prong: whether Lee constitutes a development of

fundamental significance.

It does not. We said in Witt that a change in law is of

fundamental significance when it (1) places “beyond the authority of

the state the power to regulate certain conduct or impose certain

penalties,” or (2) is “of sufficient magnitude to necessitate

retroactive application” 4 under the three-factor test in Linkletter. Id.

4. Under Witt, whether a rule qualifies for retroactive
application depends in part on whether it falls into the (judicially
created) category of rules that are “of fundamental significance,”
which in turn depends in part on whether the rule is “of sufficient
magnitude to necessitate retroactive application.” Witt, 387 So. 2d
at 929, 931. In deciding whether the change is “of sufficient
magnitude,” we consider several factors that the U.S. Supreme
Court articulated in its Linkletter test. The defining feature (and
glitch) of any judicially created multi-factor balancing test is its
pliability in practice. For that reason, we have previously explained
our “war[iness] of any invocation of multi-factor stare decisis tests
or frameworks,” stating: “They are malleable and do not lend
themselves to objective, consistent, and predictable application.
They can distract us from the merits of a legal question and
encourage us to think more like a legislature than a court.” State v.
Poole, 297 So. 3d 487, 507 (Fla. 2020). And here, the pliability of
the Linkletter factors means that the Witt rule allows a court to give
retroactive effect, more or less, to rules it finds meritorious of
retroactive effect.
-9-
at 929. The first of those categories, the parties agree, is not at

issue. We turn, then, to Linkletter’s three-factor test.

Under Linkletter, whether a case is “of sufficient magnitude to

necessitate retroactive application” turns on “(a) the purpose to be

served by the new rule; (b) the extent of reliance on the old rule;

and (c) the effect on the administration of justice of a retroactive

application of the new rule.” Id. at 926 (citing cases). We have said

this retroactivity analysis is supposed to balance the justice

system’s dual goals of fairness and finality. See id. And, we have

said, we use it to determine whether a new rule amounts to a

“jurisprudential upheaval[]” (to which we give retroactive effect), or

whether it is more like an “evolutionary refinement[] in the criminal

law” (to which we do not). Id. at 929; see also Phillips v. State, 299

So. 3d 1013, 1021 (Fla. 2020) (“[O]ur Court in Witt equated new

rules of law that are of ‘sufficient magnitude’ to merit retroactive

application with ‘jurisdictional upheavals.’ ” (quoting Witt, 387 So.

2d at 929)).

Linkletter’s first factor, considering the purpose of the new

rule, counsels against applying Lee retroactively. We have declined

to give retroactive effect to new rules when the “purpose of the new
- 10 -
rule can be achieved without applying the rule retroactively.”

Williams v. State, 421 So. 2d 512, 515 (Fla. 1982). That is the case

here, as we identified no purpose in Lee that required remedial

application of the new rule to already final cases. Rather, we

answered “how a reviewing court should determine whether

multiple convictions are based upon the same conduct,” Lee, 258

So. 3d at 1299, a fundamentally procedural change in the way a

reviewing court is to consider the defendant’s double jeopardy

rights that does not on its face cast doubt on, or demand remedy of,

the prior rule’s application. See Benyard v. Wainwright, 322 So. 2d

473, 475 (Fla. 1975) (“Substantive law prescribes the duties and

rights under our system of government. . . . Procedural law

concerns the means and method to apply and enforce those duties

and rights.”).

We have reached the opposite conclusion on those rare

occasions in which a new rule announced by this Court or the U.S.

Supreme Court recognized an additional substantive legal

protection ignored by the displaced rule, or so significant a

procedural change that its absence in prior convictions renders

them unfair or unreliable. Perhaps the most frequently cited
- 11 -
example—indeed, Witt cites it—is the rule of Gideon v. Wainwright,

372 U.S. 335 (1963), that each state must provide counsel to every

indigent defendant charged with a felony at all critical stages of the

proceeding. Witt, 387 So. 2d at 927, 929. That case recognized a

significant additional dimension of protection under the Sixth

Amendment, a purpose that can be distinguished in its substance

and magnitude from the change at issue here.

In Mosley v. State, 209 So. 3d 1248 (Fla. 2016), we concluded

that “the purpose of [two] holdings”—one of the U.S. Supreme

Court, another of this Court—“weigh[ed] heavily in favor of [their]

retroactive application” to postconviction defendants whose

sentences of death became final after the U.S. Supreme Court’s

decision in Ring v. Arizona, 536 U.S. 584 (2002). See Mosley, 209

So. 3d at 1278. In the first decision, Hurst v. Florida, 577 U.S. 92

(2016), the U.S. Supreme Court concluded that the “Sixth

Amendment requires a jury, not a judge, to find each fact necessary

to impose a sentence of death” and held our capital sentencing

statute unconstitutional. Id. at 94; see also Mosley, 209 So. 3d at

1272. And the second decision, Hurst v. State, 202 So. 3d 40 (Fla.

2016), receded from in part by State v. Poole, 297 So. 3d 487 (Fla.
- 12 -
2020), “emphasized the critical importance of a unanimous verdict

within Florida’s independent constitutional right to trial by jury

under article I, section 22, of the Florida Constitution.” Mosley, 209

So. 3d at 1278; see also Asay v. State, 210 So. 3d 1, 18-19 (Fla.

2016) (finding that Witt’s first factor weighed in favor of retroactively

applying Hurst v. Florida and Hurst v. State to capital defendants

whose sentences were final before Ring because “the ultimate

decision of whether a defendant lives or dies rests on these factual

findings, only strengthening the purpose of the new rule” but

denying retroactivity based on Witt’s remaining two factors). While

the purposes of these rules are in some sense procedural—they

speak to what the state must do to prove its case beyond a

reasonable doubt—they are of substantive character, too, for they

speak to the defendant’s right to a unanimous determination of

facts on which turn his or her eligibility for a sentence of death.

We have little trouble distinguishing these cases from Lee.

The rule announced in Lee is about the procedure a reviewing court

should use in weighing a double jeopardy claim. It recognizes no

additional scope to the defendant’s Fifth Amendment double

jeopardy right. See State v. Glenn, 558 So. 2d 4, 8 (Fla. 1990)
- 13 -
(declining to give retroactive effect to a rule that “attempt[ed] to

harmonize and refine the law as it is applied in determining the

proper method of construing criminal statutes in light of the

constitutional prohibitions against double jeopardy”). And we are

not persuaded that the new rule’s purpose was to “improve the

accuracy of trials or . . . improve the reliability of evidence.”

Chandler v. Crosby, 916 So. 2d 728, 730-31 (Fla. 2005) (declining to

give retroactive effect to a new rule, which did not “present a more

compelling objective that outweighs the importance of finality”).

Nor does the second Linkletter factor, which requires us to

consider the extent of reliance on the old rule allowing review of the

evidentiary record, support Lee’s retroactive application. Again,

Lee’s fundamentally procedural character matters, for reliance

interests generally are “lowest in cases—like this one—‘involving

procedural and evidentiary rules.’ ” Poole, 297 So. 3d at 507

(quoting Payne v. Tennessee, 501 U.S. 808, 828 (1991)).

The district courts were split in how they decided whether

multiple convictions were based on the same conduct. See Lee, 258

So. 3d at 1303 (“Before and after this Court’s opinion in Shelley, the

district courts have disagreed on how a reviewing court should
- 14 -
determine whether multiple convictions are based on the same

conduct.”). Some prohibited trial courts from reviewing the

evidentiary record. See, e.g., id. at 1299 (collecting cases). Others

allowed review of the record. See, e.g., Assanti v. State, 227 So. 3d

679, 681-82 (Fla. 1st DCA 2017) (reviewing both the charging

document and the evidentiary record to hold that the defendant’s

convictions for traveling to meet a minor to engage in sexual

conduct and solicitation of a child for unlawful sexual conduct did

not violate double jeopardy because the “information . . . charged

the two offenses on different dates, and the evidence supports the

State’s contention that the two charges were not based on the same

conduct”); McCarter v. State, 204 So. 3d 529, 530 (Fla. 1st DCA

2016) (reviewing the evidentiary record to conclude that the

“solicitation and traveling convictions arose from different criminal

episodes and acts, which involved different dates, locations, and

criminal goals” and thus did not violate double jeopardy). For these

reasons, the reliance interests here are at best an inconclusive

basis upon which to give Lee retroactive effect. See Asay, 210 So.

3d at 19-20 (concluding the Court’s extensive reliance on the old

rule, “spann[ing] decades’ worth of capital cases,” “weigh[ed] heavily
- 15 -
against retroactive application” of the new rule); Chandler, 916 So.

2d at 730 (concluding the Witt factors weighed against retroactive

application in part because the old rule “was relied on by trial

courts for over 20 years”); Williams, 421 So. 2d at 515 (“That

significant reliance has been placed on the old rule is an important

factor supporting prospective application of the new rule.”).

The third Linkletter factor considers the effect of applying a

new rule on the administration of justice. “This final consideration

in the retroactivity equation requires a balancing of the justice

system’s goals of fairness and finality . . . .” Ferguson v. State, 789

So. 2d 306, 312 (Fla. 2001). We find the balance tips against giving

retroactive effect to the rule in Lee. Applying Lee retroactively

would require the parties to review charging documents from long-

ago convictions. So too would it require the courts to resentence

defendants—again, following long-ago convictions—whenever

vacating a lesser conviction could materially affect the sentence of

greater conviction. And while Dettle argues that applying Lee

retroactively would not require new trials, that is not dispositive to

our analysis. Even where retroactive application of the law would

require only resentencing, rather than retrial, “there is an important
- 16 -
consideration regarding the impact a new sentencing proceeding

would have on the victims’ families and their need for finality.”

Asay, 210 So. 3d at 22.

These finality concerns are not to be taken lightly. In fact,

finality is such a “strong concern” that, in practice, “this Court

rarely finds a change in decisional law to require retroactive

application.” Glenn, 558 So. 2d at 7-9 (collecting cases and

ultimately declining to retroactively apply an “evolutionary

refinement of decisional law” and “emphasiz[ing] that the policy

interests of decisional finality weigh heavily”). We said in Witt that

disrupting finality interests to accommodate mere “evolutionary

refinements in the criminal law,” including “for procedural fairness”

or “other like matters,” would “destroy the stability of the law,

render punishments uncertain and therefore ineffectual, and

burden the judicial machinery of our state, fiscally and

intellectually, beyond any tolerable limit.” Witt, 387 So. 2d at 929-

30.

Thus, using the test described in Witt, we conclude that Lee

does not reach the high bar we have set for rules to meet before we

- 17 -
say that they, unlike most, require us to upset finality interests by

giving them retroactive effect.

C

Teague, which sets out a retroactivity standard with fewer

moving parts than the one we articulated in Witt, compels the same

result. Initially, under Teague, new rules of constitutional law

could not apply retroactively to postconviction cases unless they

were substantive or announced a “watershed” rule of criminal

procedure that was “implicit in the concept of ordered liberty.”

Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S.

667, 693 (1971)). The standard has evolved. In Edwards v.

Vannoy, the U.S. Supreme Court deemed Teague’s “watershed”

prong “moribund” and imposed a bright-line rule: new procedural

rules—that is, those that “alter ‘only the manner of determining the

defendant’s culpability’ ”—do not apply retroactively on collateral

review. 593 U.S. 255, 274, 276 (2021) (quoting Schriro v.

Summerlin, 542 U.S. 348, 353 (2004)). Instead, only substantive

rules—those that “alter ‘the range of conduct or the class of persons

that the law punishes’ ”—can apply retroactively. Id. at 276

(quoting Summerlin, 542 U.S. at 353).

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The inquiry under Teague, as modified in Edwards, is whether

a rule is procedural or substantive. Only the latter can be applied

retroactively. Lee is squarely a procedural rule: it resolved the

question “how a reviewing court should determine whether multiple

convictions are based upon the same conduct” in the context of the

specific convictions before it. Lee, 258 So. 3d at 1299; see also

Welch v. United States, 578 U.S. 120, 131 (2016) (“If a new rule

regulates only the procedures for determining culpability, the

Teague balance generally tips in favor of finality.”). Thus, under

Teague, as under Witt, Lee does not apply retroactively.

D

The State urges us to recede from Lee or, alternatively, to

recede from Witt and adopt Teague. We decline to do so. Our

answer to the certified question remains the same whether we apply

Witt or Teague, and we need not address Lee’s soundness to resolve

this case.

III

We answer the certified question in the negative and affirm the

decision of the First District.

It is so ordered.

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MUÑIZ, C.J., and LABARGA, GROSSHANS, and FRANCIS, JJ.,
concur.
CANADY, J., concurs specially with an opinion.
SASSO, J., concurs specially with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

CANADY, J., specially concurring.

I agree that under Witt, our decision in Lee should not be

given retroactive effect on postconviction review and that the

decision of the First District therefore should be approved. I am

content to resolve this case under Witt. I agree, generally, with the

majority’s line of analysis,5 but I write to emphasize key aspects of

5. I do not agree with the majority’s analysis of the reliance
issue. See majority op. at 14-16. The citation of Poole’s statement
concerning reliance interest is inapposite. Under Witt, the relevant
reliance interests are those of the government. In its statement of
the threefold test that we subsequently adopted in Witt, Stovall v.
Denno, 388 U.S. 293, 297 (1967), refers to the second part of that
test as “the extent of the reliance by law enforcement authorities on
the old standards.” The reliance interests relevant under Witt count
against retroactivity. The majority opinion suggests, however, that
the reliance interests might be a “basis upon which to give . . .
retroactive effect” to a new rule. Majority op. at 15. Under Poole,
the relevant potential reliance interests are those of parties arguing
that existing law should be maintained. Poole’s point is that
ordinarily parties do not justifiably place significant reliance on the
continuing validity of procedural and evidentiary rules and that any
reliance interests asserted on that basis will be unavailing to
entrench a seriously erroneous precedent. The analysis of the

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our Witt doctrine that provide some clarity that helps reduce the

uncertainty surrounding retroactivity analysis. I also write to

express my sympathy for Justice Sasso’s view that we should in a

future case fully re-examine the appropriateness of our Witt

framework.

Witt’s foundational principle is that retroactive application on

postconviction review should not be given “in the absence of

fundamental and constitutional law changes which cast serious

doubt on the veracity or integrity of the original trial proceeding.”

Witt, 387 So. 2d at 929; see also Fla. R. Crim. P. 3.850(b)(2)

(requiring allegation of “the fundamental constitutional right

asserted” as a predicate for seeking retroactive application of a new

rule). Here, the rule adopted in Lee does not “cast serious doubt on

reliance interests of the government that militate against retroactive
application of a new rule proceeds in an entirely different fashion.
This is manifest in Witt’s teaching that the category of “evolutionary
refinements”—into which most procedural and evidentiary rule
changes will necessarily fall—will not be eligible for retroactive
application. The government’s reliance on the old rule in such
cases—which by their very nature are frequent—points against
retroactive application. So such a new rule that overturned
precedent because no reliance interests required the maintenance
of that precedent will most likely be denied retroactive application
because other reliance interests—i.e., the government’s reliance on
the old rule—cut against unsettling final judgments.
- 21 -
the veracity or integrity” of proceedings conducted before Lee was

decided. Under the pre-Lee law, there is no serious doubt that

Dettle was subjected to multiple punishments only for distinct

instances of criminal conduct in which he engaged.

Another key aspect of our Witt doctrine is the critical

dichotomy drawn by Witt in its discussion of its second broad

category—which the parties here agree is the relevant element of

Witt. In this category of “those changes of law which are of

sufficient magnitude to necessitate retroactive application as

ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293

(1967)] and Linkletter,” Witt establishes a critical divide between

“jurisprudential upheavals” and “evolutionary refinements.” 387

So. 2d at 929. This dichotomy establishes a guiding principle for

the weighing process involved in the application of the threefold

Stovall/Linkletter test. As Witt says, and as our cases have repeated

over and over, “evolutionary refinements in the criminal law” do not

justify “an abridgement of the finality of judgments.” Phillips, 299

So. 3d at 1021 (quoting Witt, 387 So. 2d at 929); see, e.g., State v.

Barnum, 921 So. 2d 513, 519 (Fla. 2005); Hughes v. State, 901 So.

2d 837, 844 (Fla. 2005); McCuiston v. State, 534 So. 2d 1144, 1146
- 22 -
(Fla. 1988). The modest procedural change adopted by the decision

in Lee is readily identifiable as an “evolutionary refinement.” By no

stretch of the imagination could it be considered a “jurisprudential

upheaval.”

I share the concern that the Stovall/Linkletter threefold test is

subject to judicial manipulation, but that potential for abuse is

curbed—if not eliminated—when proper attention is given to the

principle that “evolutionary refinements” in the law will not be given

retroactive effect along with Witt’s foundational teaching that only

new rules that “cast serious doubt on the veracity or integrity” of

prior proceedings should be applied retroactively.6

In view of the potential for the misapplication of Witt and the

changing landscape of federal law from which Witt was derived, re-

6. Of course, our Court has not always paid attention to these
basic features of Witt. For example, in Mosley, which gave limited
retroactive effect to Hurst v. Florida and Hurst v. State, our analysis
made no mention of Witt’s teaching that retroactive effect should be
given only to new rules that “cast serious doubt on the veracity or
integrity” of prior proceedings and new rules that constitute
“jurisprudential upheavals.” I adhere to my view that Mosley was
wrongly decided, and that it is in any event “the ghost of a
precedent” given our decision in Poole, which destroyed the
underpinnings of Mosley’s analysis. Brown v. State, 304 So. 3d
243, 281 (Fla. 2020) (Canady, C.J., concurring in result).
- 23 -
examination of Witt in a proper case is called for. We should

undertake such a re-examination, however, only with full briefing

on the issue, including consideration of relevant statutory and rule

provisions, as well as the historical scope of the writ of habeas

corpus.

In the meantime, Witt requires approval of the decision now on

review.

SASSO, J., specially concurring.

I agree with the majority’s conclusion that Lee does not apply

retroactively, regardless of whether we apply the retroactivity test

found in Witt or Teague. However, I also agree with the State’s

contention that we should reconsider Witt and write to explain why

we should do so in a future case.

As the State highlights, Witt’s foundation has eroded. In Witt,

we adopted the Linkletter retroactivity test simply because it was

the then-prevailing federal standard. See Witt, 387 So. 2d at 926

(noting “the essential considerations in determining whether a new

rule of law should be applied retroactively” were the three factors

emanating from United States Supreme Court cases and Florida

state court decisions applying United States Supreme Court
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standards); Johnson v. State, 904 So. 2d 400, 414 (Fla. 2005)

(Cantero, J., concurring) (“[I]n Witt we did not consciously decide to

forge our own ‘very different standard’ of retroactivity. To the

contrary, we adopted the then-existing federal standard.”). But the

United States Supreme Court abandoned the Linkletter test, and for

good reason. See majority op. at 9 n.4 (noting pliability of multi-

factor tests). In addition, the United States Supreme Court has

since clarified that, absent a contrary pronouncement, we have no

obligation to adopt and apply a federal standard applicable to

federal habeas proceedings to state postconviction proceedings.

See, e.g., Edwards, 593 U.S. at 271 n.6 (noting states remain free to

retroactively apply a jury-unanimity rule as a matter of state law in

state postconviction proceedings); Danforth v. Minnesota, 552 U.S.

264 (2008). But see Montgomery v. Louisiana, 577 U.S. 190 (2016).

So, while I agree we are justified in reconsidering Witt, I do not

think our next step is to simply adopt the now-prevailing federal

standard nor do I fully agree with the State’s reasoning for why we

should adopt Teague. Instead, it seems our primary endeavor

should be to evaluate which retroactivity standard best gives effect

to Florida’s postconviction scheme. See, e.g., Mary C. Hutton,
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Retroactivity in the States: The Impact of Teague v. Lane on State

Postconviction Remedies, 44 Ala. L. Rev. 421, 433 n.87 (1993) (citing

2 Steven A. Childress & Martha S. Davis, Federal Standards of

Review 13-15 (2d ed. 1992)).

With that consideration in mind, both section 924.066, Florida

Statutes (2024), and Florida Rule of Criminal Procedure 3.850

provide that individuals may claim relief from a judgment of

conviction or sentence that was imposed in violation of the

Constitution or law of the United States or the State of Florida. A

retroactivity rule that best gives effect to these provisions may be

one that generally prohibits retroactive application of judicial

decisions unless those decisions are substantive in nature. In other

words, courts would give retroactive effect only to those decisions

that “alter ‘the range of conduct or the class of persons that the law

punishes.’ ” Edwards, 593 U.S. at 276 (quoting Summerlin, 542

U.S. at 353). By contrast, decisional changes related to procedural

rules would not be applied retroactively because those rules are

only “designed to enhance the accuracy of a conviction or sentence

by regulating ‘the manner of determining the defendant’s

- 26 -
culpability.’ ” Montgomery, 577 U.S. at 201 (quoting Summerlin,

542 U.S. at 353).

I recognize that if this Court ultimately adopts such a

standard, the test would essentially mirror Teague (without a

watershed exception). Even so, I believe that it is necessary that we

both critically evaluate retroactivity through a Florida-specific lens

and clarify the independent grounds on which any future

retroactivity test is based. That issue does not affect the outcome in

this case, though, so I concur with the majority opinion.

Application for Review of the Decision of the District Court of Appeal
Certified Great Public Importance & Direct Conflict of
Decisions

First District - Case No. 1D2020-2651

(Alachua County)

Dimitrios A. Peteves and Bryan S. Gowdy of Creed & Gowdy, P.A.,
Jacksonville, Florida,

for Petitioner

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
Allen L. Huang, Deputy Solicitor General, Tallahassee, Florida,

for Respondent

Diana L. Johnson, Assistant Public Defender, Fourth Judicial
Circuit, Jacksonville, Florida, and Justin F. Karpf and Barbara J.
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Busharis, Assistant Public Defenders, Second Judicial Circuit,
Tallahassee, Florida,

for Amicus Curiae The Florida Association of Criminal Defense
Lawyers

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