Lead Opinion
This case is before the Court on appeal from an order summarily denying a motion to vacate a sentence of death under 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 that follow, we reverse the summary denial of Walls’ intellectual disability claim and remand for the circuit court to conduct an evidentiary hearing-under the appropriate standards.
FACTS AND PROCEDURAL HISTORY
We have described the facts of this case as follows:
Frank A. Walls was convicted of felony murder in the death of Edward Alger and premeditated and felony murder in the death of Ann Peterson in Okaloosa County in July 1987. Alger’s and Peterson’s bodies were discovered in Alger’s home when he failed to report for duty at Eglin Air Force Base. Peterson was shot twice in the head; Alger was shot three times and his throat had been cut. Alger’s feet and left wrist were also tied with a curtain cord.
Based on information given to investigators by Walls’ former roommate, who lived adjacent to the victims, a warrant was obtained to search the mobile home where Walls lived with a roommate. During the search, several items were seized that were linked to the crime scene.
After his arrest, Walls gave a statement detailing his involvement in the murders. In his confession, Walls stated that he entered the house to commit a burglary and that he deliberately woke up the two victims by knocking over a fan. Walls made Peterson tie up Alger and then Walls tied up Peterson. At some point, Alger got loose from the bindings and attacked Walls. Walls tackled Alger and cut him across the throat with a knife. However, Alger continued to struggle, knocked the knife from Walls’ hand, and bit Walls on the leg. Walls then pulled out a gun and shot Alger in the head several times. Walls untied Peterson and informed her that he did not originally intend to harm them, but Alger’s attack had changed everything. During a struggle, Walls ripped off Peterson’s clothes and shot her in the head. When Peterson continued to scream, Walls pushed her face into a pillow and shot her in the head a second time.
Walls v. State (Walls III),
Walls pled not guilty and filed several pretrial motions, including a motion to determine his competency to stand trial. Five experts testified, three stating Walls was incompetent and two finding he was competent. The trial judge agreed with the latter two experts and held that Walls was competent to stand trial. The jury found Walls guilty of all charges submitted and later recommended life imprisonment for the murder of Alger and death for the murder of Peterson. The trial judge concurred. The conviction later was reversed and a new trial ordered.
Id. at 385 (citing Walls v. State (Walls I),
At Walls’ retrial, venue was moved to Jackson County because of pretrial publicity. The State’s guilt phase evidence consisted of physical evidence, testimony by the investigating officers, testimony by a pathologist, and Walls’ taped con*342 fession, which was played for the jury. Walls presented no guilt phase case. The jury found Walls guilty on all charges—two counts of first-degree murder, burglary of a structure, armed burglary of a dwelling, and two counts of kidnapping and petit theft.
During the penalty phase, Walls presented evidence of his long history of violent and threatening behavior, his various emotional problems, and his extensive treatment for emotional problems, including placement in a class for emotionally handicapped students in elementary school and a stay in a residential youth camp for children with emotional and behavioral problems at age fifteen. A psychiatrist who had treated Walls when he was sixteen years old stated that he had placed Walls on lithium in order to control his bipolar mood disorder. However, the psychiatrist also testified that at some point Walls ceased taking the drug. A psychologist testified that Walls’ IQ had declined substantially in the years prior to trial and that Walls was impaired during the time the murder was committed.
The jury recommended the death penalty for Peterson’s murder by a unanimous vote. Because of the prior jury’s recommendation of life, double jeopardy precluded the possibility of a death penalty for Alger’s murder on retrial. See [Walls II,641 So.2d at 386 n. 1]; see also art. I, § 9, Fla. Const. The judge sentenced Walls to death for Peterson’s murder, to a life sentence for Alger’s murder, to five years in prison for the burglary of a structure, to twenty years for the armed burglary of a dwelling, to twenty years for each of the kidnapping counts, and to two months for petit theft.
Walls III,
As to Walls’ death sentence, the judge found six aggravators: prior violent felony for the contemporaneous murder of Alger; committed during a burglary or kidnapping; committed to avoid lawful arrest; committed for pecuniary gain; the murder was especially heinous, atrocious, or cruel (HAC); and the murder was cold, calculated, and premeditated (CCP). Walls II,
On direct appeal after the retrial, Walls raised nine issues:
(1) the trial court should have excused a potential juror for cause or granted the defense an additional peremptory challenge to excuse the juror; (2) the State improperly exercised peremptory challenges to dismiss two black jurors based on their race; (3) the jurors were kept in session for overtaxing hours during trial; (4) the trial coui-t gave the jury erroneous penalty phase instructions on the mitigating factors of mental disturbance, impairment, or duress and on the aggravating factors of HAC and CCP; (5) the trial court refused to provide the jury with a detailed interpretation of emotional disturbance as a mitigating factor; (6) the trial court made eirors in its findings on the aggravating factors because HAC and CCP were not proven*343 beyond a reasonable doubt, the evidence did not support the conclusion that the murder occurred during a kidnapping, the commission during a burglary aggravating factor impermissibly doubled the pecuniary gain factor, and the avoid arrest aggravator was improper; (7) the trial court required Walls to prove the mitigating factors by a preponderance of the evidence; (8) the trial court improperly rejected expert testimony that Walls was suffering from extreme emotional disturbance and substantial impairment; and (9) the death sentence was not proportionate in his case. This Court found no error and affirmed the judgment and sentences. The United States Supreme Court subsequently denied Walls’ petition for certiorari. See Walls v. Florida,513 U.S. 1130 ,115 S.Ct. 943 ,130 L.Ed.2d 887 (1995).
Id. at 1162-63 (citation omitted).
Walls filed his initial postconviction motion in 1997, amending it later that year and again in 2001. Id. at 1163. The second amended motion raised nine claims:
(1) [Walls] was denied a fair guilt phase proceeding due to ineffective assistance of counsel, prosecutorial misconduct, and trial court error; (2)counsel conceded guilt and eligibility for the death penalty without Walls’ consent; (3) he was denied a fair penalty phase proceeding due to ineffective assistance of counsel, prosecutorial misconduct, and trial court error; (4) counsel failed to obtain an adequate mental health evaluation in violation of Ake v. Oklahoma,470 U.S. 68 ,105 S.Ct. 1087 ,84 L.Ed.2d 53 (1985); (5) his death sentence is unconstitutional because he is mentally retarded; (6) the trial court did not independently weigh the aggravating and mitigating circumstances; (7) the trial court considered inadmissible victim impact evidence; (8) the jury was improperly instructed on the aggravating factors; and (9) the cumulative effect of these procedural and substantive errors deprived him of a fair trial.
Id. at 1163 n. 1.
Walls appealed the denial to this Court raising two claims encompassing several subclaims: the circuit court erred in (1) denying Walls’ ineffective assistance of counsel claims for counsel’s “failure to exclude and object to the admission of evidence of a possible sexual battery, failure to object to a lack of remorse argument by the prosecutor during closing argument, concession of guilt to the facts of felony murder and to the aggravating factor of commission during a burglary, and failure to object to a number of other prosecutorial comments and arguments”; and (2) denying Walls an evidentiary hearing on his other five ineffective assistance of counsel claims
On June 23, 2006, Walls filed his first successive postconviction motion pursuant to rules 3.203 and 3.851, raising only the intellectual disability claim. On July 10, 2007, the circuit court held an evidentiary hearing at which defense expert Dr. Jethro Toomer and State expert Dr. Harry McClaren testified regarding Walls’ mental condition. The court denied relief on July 16, 2007, finding no intellectual disability because Walls’ lowest IQ score of 72 did not meet the definition of subaverage intellectual functioning then in place, which required an IQ of 70 or below.
On May 26, 2015, Walls filed his second successive postconviction motion, under rules 3.851 and 3.852. The next day, he filed another motion with the same title as the first and an amended version—both of which do not differ in substance from the one filed on May 26. In these motions, Walls argued that his death sentence was unconstitutional under Atkins v. Virginia,
The circuit court held a hearing on July 6, 2015, intending to conduct a case management conference, under Huff v. State,
As to the Huff issue, the State then asserted that the court could summarily deny Walls’ motion as a matter of law because even with the new cut-off of 75, Walls was required to demonstrate onset before age 18 and none of his IQ scores from before he turned 18 were below 75. In response, Brody presented limited argument explaining that in his opinion, Hall expressly rejected such a rigid approach and instead required courts to look at other aspects of a defendant’s background, rather than just an IQ score. The court then ended the hearing, stating it would
On July 10, 2015, the circuit court issued its order summarily denying Walls’ second successive 3.851 motion without granting a hearing. The court did not expressly rule on whether Hall applied retroactively to Walls’ case, stating that although the Eleventh Circuit Court of Appeals had opined that Hall does not have retroactive application,
ANALYSIS
Walls’ postconviction motion is based on his prior evidentiary hearing having been decided under a rule of law that has now been found unconstitutional under the Supreme Court’s decision in Hall. If Hall does not apply retroactively, Walls has no basis on which to claim relief. Therefore, we address the retroactivity of Hall first.
I. Retroactive Application of Hall
In Hall, the United States Supreme Court declared Florida’s definition of intellectual disability unconstitutional because it required an IQ score of 70 or below to demonstrate subaverage intellectual functioning. See
We must first determine whether Hall warrants retroactive application under Witt v. State,
The Supreme Court’s rejection of Florida’s mandatory IQ score cutoff means defendants with IQ scores that are higher than 70 must still be permitted to present evidence of all three prongs of the test for intellectual disability. The Hall decision requires courts to consider all prongs of the test in tandem. As we have recognized, this means that “if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of the other prongs.” Oats v. State,
II. Applying Hall to This Case
In applying Hall to Florida, we have recognized the Supreme Court’s mandate that all three prongs of the intellectual disability test be considered in tandem and that the conjunctive and interrelated nature of the test requires no single factor
It is so ordered.
PARIENTE, J., concurs with an opinion.
Notes
. The term “intellectual disability” will now be used in place of "mental retardation.” See Fla. R.Crim. P. 3.203.
. These claims were that counsel failed to present: (1) expert testimony on the effects of Ritalin, (2) a pharmacologist's testimony about the effects of Walls’ drug and alcohol use, (3) an adequate mental health evaluation including a PET scan to show brain damage, and (4) lay testimony on mitigation. Claim (5) was that counsel should have filed a motion asserting that the death penalty was barred by double jeopardy because retrial was caused by the prosecutor's misconduct. Walls III,
. This rule allows death-sentenced prisoners to file motions for determination of intellectual disability even in cases where their direct appeal proceedings are final. Id. at 1174. The rule defines “intellectual disability” as having three elements: (1) significantly sub-average intellectual general functioning that (2) exists concurrently with deficits in adaptive behavior and which has (3) manifested itself prior to age 18. Fla. R.Crim. P. 3.203; see also § 921.137, Fla. Stat. (2006).
. Walls' IQ scores are as follows: 102 at age 12, 101 at age 14, 72 at about age 23, and 74 at approximately age 40.
. See In re Hill, 777 F.3d 1214, 1223 (11th Cir.2015); In re Henry,
. In Haliburton v. Florida, — U.S. -,
Concurrence Opinion
concurring.
I fully concur in the majority opinion that Walls is entitled to a new evidentiary hearing pursuant to Hall v. Florida, — U.S. -,
Contrary to the dissent’s suggestions, this Court appropriately holds that Hall should be given retroactive effect. See Canady, J., dissenting op. at 351. The decision is not a mere evolutionary refinement in the law. Hall specifically held that Florida’s method for determining those who are ineligible for execution violates the Eighth Amendment:
The Florida statute, as interpreted by its courts, misuses IQ score on its own terms; and this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capital case has an intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishment Clause.
Hall,
Moreover, as this Court explained in Oats v. State, Hall changed the manner in which evidence of intellectual disability must be considered, stating: “[Cjourts must consider all three prongs in determining an intellectual disability, as opposed to relying on just one factor as dispositive ... because these factors are interdependent, if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of the other prongs.” Oats,
Rodriguez, who had never before raised an intellectual disability claim, asserted that there was “good cause” pursuant to Rule 3.203(f) for his failure to assert a previous claim of intellectual disability and only after the United States Supreme Court decided Hall v. Florida [— U.S. -],134 S.Ct. 1986 [188 L.Ed.2d 1007 ] (2014), did he have the basis for asserting an intellectual disability claim. The trial court rejected the motion as time barred, concluding there was no reason that Rodriguez could not have previously raised a claim of intellectual disability based on Atkins v. Virginia,536 U.S. 304 [122 S.Ct. 2242 ,153 L.Ed.2d 335 ] (2002). The trial court further concluded that Rodriguez could not have relied on Cherry v. State,959 So.2d 702 (Fla.2007), which established the bright-line cut-off of 70 for IQ scores disapproved of in Hall, because he never raised an intellectual disability claim after Atkins as required by Rule 3.203.
We have considered the issues raised, and affirm the trial court's denial of Rodriguez’s motion as time-barred for the reasons stated by the trial court.
Id.
Turning to this case, the trial court relied, in part, on this Court’s decision in Cherry in denying Walls relief. The bright-line cut-off of 70 for IQ scores announced in Cherry and relied on by the trial court in Walls’ case has been explicitly rejected by the United States Supreme Court’s decision in Hall. Hall,
Because Walls’ eligibility or ineligibility for execution must be determined in accordance with the correct United States Supreme Court jurisprudence, this case is a prime example of creating a manifest injustice if we did not apply Hall to Walls. Walls has yet to have “a fair opportunity to show that the Constitution prohibits [his] execution.” Hall,
More than fundamental fairness and a clear manifest injustice, the risk of executing a person who is not constitutionally able to be executed, trumps any other considerations that this Court looks to when determining if a subsequent decision of the United States Supreme Court should be applied. At stake in this case is a principle that could not be better expressed than in the words of Justice Kennedy writing for the majority in Hall:
The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must*349 have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.
Dissenting Opinion
dissenting.
The trial court’s order denying Walls’ claim should be affirmed. In reversing the trial court’s order, the majority makes three fundamental errors. First, the majority ignores a deficiency in Walls’ case— his failure to show juvenile onset—that bars him from success on his claim of intellectual disability. Second, the decision here goes on needlessly to consider Hall v. Florida, — U.S. -,
I.
This case is easily resolvable without any discussion of the scope of Hall’s holding regarding IQ scores or consideration of whether Hall should be applied retroactively. The trial court correctly denied Walls’ intellectual disability claim because the evidence showed without dispute that as a juvenile Walls had IQ scores of 102 (at age 12) and 101 (at age 14). Based on these IQ scores, Walls could not establish that he met the third prong of the test for intellectual disability, which requires that the condition be “manifested during the period from conception to age 18.” § 921.137(1), Fla. Stat. (2006). This requirement of juvenile onset was not at issue and played no part in the Court’s analysis in Hall. So nothing in Hall supports the conclusion that the third prong does not remain a valid requirement of law. The third prong therefore defeats Walls’ claim. And the trial court’s rejection of the claim on that basis should be affirmed.
II.
The majority states that Hall requires that “defendants with IQ scores that are higher than 70 must still be permitted to present evidence of all three prongs of the test for intellectual disability.” Majority op. at 346. According to the majority, Hall requires that “no single factor ... be considered dispositive” but that every intellectual disability claim must instead be given “holistic review.” Majority op. at 346, 346, 347. Thus, by the reasoning of the majority, an individual with an IQ of 80, 100, 125, or 150 would nonetheless—as part of the “holistic review” process—-be entitled to present evidence of adaptive deficits to establish intellectual disability. But this is not consistent with what the Supreme Court actually decided in Hall.
Hall declared unconstitutional Florida’s “rigid rule” “defin[ing] intellectual disability to require an IQ test score of 70 or less”—a rule that failed to take into account the 5-point standard error of measurement (SEM) for IQ tests. Hall,
The holding of Hall is that the SEM must be taken into account in determining whether an individual is intellectually disabled. Throughout its opinion, the Court in Hall focuses on Florida’s failure to consider the SEM. And the Court repeatedly identifies that failure as the basis for its decision. The Court observed that “[t]he clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise of Atkins[ v. Virginia,
III.
I reject the majority’s conclusion that Hall should be given retroactive application under Witt v. State,
I would also conclude that Hall is not a change in the law of “fundamental significance” under the Stovall/Linkletter
that the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (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. In Witt, the Court recognized that under this test “evolutionary refinements”—in contrast to “jurisprudential upheavals”—do not warrant retroactive application:
In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, 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.
Id. at 929-30. Hall represents just such an evolutionary refinement in the law. I thus would conclude that Hall should not be given retroactive effect under the Sto-vall/Linkletter test based on (a) Hall’s purpose of adjusting at the margin the definition of IQ scores that evidence significant subaverage intellectual functioning, (b) the State’s reliance on Cherry ⅛
Finally, I would conclude that Hall does not constitute “a new substantive rule of constitutional law” for which federal law requires retroactive application. Montgomery v. Louisiana, — U.S. -,
Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a*352 State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating “the manner of determining the defendant’s culpability.” Schriro[ v. Summerlin,542 U.S. 348 , 353,124 S.Ct. 2519 ,159 L.Ed.2d 442 (2004)]; Teague[ v. Lane,489 U.S. 288 , 313,109 S.Ct. 1060 ,103 L.Ed.2d 334 (1989) (plurality opinion)]. Those rules “merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Schriro, supra, at 352 [124 S.Ct. 2519 ]. Even where procedural ei-ror has infected a trial, the resulting conviction or sentence may still be accurate; and, by extension, the defendant’s continued confinement may still be lawful. For this reason, a trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant’s conviction or sentence.
Id. at 729-30. The Court thus has recognized that retroactive application is appropriate because the “possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment.” Id. at 730; see also Welch v. United States, — U.S. -,
In explaining why states should be required to give retroactive effect to such new substantive rules, the Court stated:
[T]he retroactive application of substantive rules does not implicate a State’s weighty interests in ensuring the finality of convictions and sentences. Teague warned against the intrusiveness of “continually forcing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.”489 U.S. at 310 ,109 S.Ct. 1060 . This concern has no application in the realm of substantive rules, for no resources marshaled by a State could preserve a conviction or sentence that the Constitution deprives the State of power to impose.
Montgomery,
The change in the law accomplished by Hall does not render any sentence “by definition, unlawful.” Id. at 730. Hall “merely raise[s] the possibility” that someone found not to be intellectually disabled could be determined to be intellectually disabled. Id. (quoting Schriro,
POLSTON, J., concurs.
. Stovall v. Denno,
. Cherry v. State,