Opinion
No. SC08-565.
February 27, 2009.
Lower Tribunal No(s). 89-13299 CFANO.
Jeffrey Atwater, a prisoner under sentence of death for the 1989 killing of Ken Smith, appeals the trial court's denial of his third motion for post conviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.851. Relief was denied in both of Atwater's previous post conviction proceedings. See Atwater v. State, 788 So. 2d 223 (Fla. 2001); Atwater v, State, 892 So. 2d 1011 (Fla. 2004) (table). In his current post conviction appeal, Atwater asserts that: (1) newly discovered evidence shows that Florida's lethal injection method of execution violates the Eighth Amendment; (2) section 27.702, Florida Statutes (2007), as interpreted by this Court to prohibit Capital Collateral Regional Counsel from filing federal claims under 42 U.S.C. § 1983, is unconstitutional; and (3) section 945.10, Florida Statutes (2006), which conceals the identity of the participants in an execution, is unconstitutional. This Court has previously rejected each of these claims. See Ventura v. State, 34 Fla. L. Weekly S71 (Fla. Jan. 29, 2009) (rejecting a challenge to Florida's lethal injection protocols and rejecting a challenge to section 27.702); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008) (also rejecting a challenge to Florida's lethal injection protocols); Henyard v. State, 992 So. 2d 120 (Fla. 2008) (rejecting claim that section 27.702 is unconstitutional, that Florida's method of execution violates Page 2 the Eighth Amendment, and that section 945.10 is unconstitutional); Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007) (rejecting claim that Florida's method of execution violates the Eighth Amendment); Bryan v. State, 753 So. 2d 1244 (Fla. 2000) (rejecting claim that section 945.10 is unconstitutional). Accordingly, the trial court's denial of post conviction relief on the three claims is hereby affirmed. It is so ordered. QUINCE, C.J., and WELLS, PARIENTE, CANADY, POLSTON, and LABARGA, JJ., concur. LEWIS, J., concurs in part and dissents in part.