          Supreme Court of Florida
                                   ____________

                                   No. SC12-749
                                   ____________

                             SONNY BOY OATS, JR.,
                                  Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                [December 17, 2015]

PER CURIAM.

      Sonny Boy Oats, Jr., appeals an order of the circuit court that denied his

motion filed pursuant to Florida Rule of Criminal Procedure 3.203,1 in which he

claimed that he is intellectually disabled2 and thus cannot be sentenced to death. In



       1. 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), of
the Florida Constitution.

       2. The term originally used in these proceedings was “mentally retarded.”
This terminology was recently changed to “intellectually disabled,” as recognized
in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM-5), one of the basic texts used by psychiatrists and other experts. American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33
(5th ed. 2013). Thus, both the Florida Statutes and the Florida Rules of Criminal
Procedure modified their relevant provisions to conform to the change in
light of developments in the law since Hall v. Florida, 134 S. Ct. 1986 (2014), and

because the circuit court erred in its legal analysis regarding the onset of Oats’s

intellectual disability prior to the age of 18 and failed to consider all of the

evidence presented, we reverse and remand for a full reevaluation of whether Oats

is intellectually disabled.

      Oats’s intelligence quotient (IQ) has never been in genuine dispute. Based

on numerous psychological tests, Oats’s IQ is between 54 and 67, well within the

range for an individual who has an intellectual disability. Up until the current

litigation, expert after expert consistently recognized that Oats has an intellectual

disability as defined by the Diagnostic and Statistical Manual of Mental Disorders

(DSM)—a fact the State previously conceded in 1990 when litigating whether trial

counsel was ineffective in failing to present mental mitigation, including Oats’s

intellectual disability. Recent records from prison also show that the Florida

Department of Corrections is concerned that Oats may be intellectually disabled.

      Despite this evidence, the circuit court denied finding Oats to be

intellectually disabled, on the basis that Oats was unable to establish that his

intellectual disability manifested before the age of 18—one of the three required



terminology. There is no difference in the meaning of these two terms.
Accordingly, throughout this opinion, we use the term “intellectually disabled.”
See also Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (using the new
terminology).


                                          -2-
prongs in Florida’s statutory test for determining an intellectual disability. See §

921.137, Fla. Stat. (2015). In support, the circuit court relied on the lack of a full

childhood IQ test, even though an initial screening test performed by Oats’s

elementary school showed that Oats’s IQ was 70—a score that likewise would be

within the range of IQ scores for a person who has an intellectual disability—and

even though Oats presented significant evidence of childhood difficulties and

injuries consistent with an individual with an intellectual disability.

      Our decision to reverse is based on three reasons. First, in light of the

United States Supreme Court’s decision in Hall, the circuit court’s order should

have addressed all three prongs of the intellectual disability test, rather than

denying the claim solely because Oats allegedly did not present sufficient evidence

to establish that his intellectual disability manifested before the age of 18. As the

United States Supreme Court has stated, “[i]t is not sound to view a single factor as

dispositive of a conjunctive and interrelated assessment.” Hall, 134 S. Ct. at 2001.

The United States Supreme Court’s most recent decision regarding intellectual

disability reaffirms Hall and provides further authority that all three prongs

generally must be considered in tandem. See Brumfield v. Cain, 135 S. Ct. 2269,

2278-82 (2015).

      Second, the circuit court erroneously held that Oats failed to meet his burden

to establish his intellectual disability without even considering or weighing all of


                                          -3-
the testimony that Oats presented, including the evidence submitted in prior

postconviction proceedings from 1990 that both parties agreed was relevant and

should be considered. This error is of particular concern given that Oats presented

so much evidence of an intellectual disability during the 1990 proceedings that the

State actually acknowledged that there was “[n]o doubt” he was “in the mildly

mentally retarded area.”3

      Third, the circuit court erroneously conflated the term “manifested” with

“diagnosed” and held that Oats failed to satisfy one of the necessary prongs of the

statutory test for intellectual disability because Oats was not diagnosed as a child,

even though the applicable Florida statute requires only that the intellectual

disability “manifested during the period from conception to age 18.” § 921.137(1),

Fla. Stat. (emphasis added). Further, the circuit court relied exclusively on

testimony from a State expert witness that was based on a misreading of this

Court’s precedent in Cherry v. State, 959 So. 2d 702 (Fla. 2007)—a decision that

was subsequently disapproved by the Supreme Court in Hall.

      We accordingly reverse the denial of Oats’s rule 3.203 motion and remand

to the circuit court to reconsider whether Oats is intellectually disabled. A remand



       3. Even if not legally binding, we note that the State’s experienced Assistant
Attorney General also recognized during the current evidentiary hearing that
manifestation of an intellectual disability before age 18 was so clear that it was
“not really in play” in this case.


                                         -4-
of this proceeding is particularly necessary in light of the dispositive opinion in

Hall, in which the United States Supreme Court disapproved our opinion in Cherry

and provided additional guidance pertaining to the necessary showing under Atkins

v. Virginia, 536 U.S. 304 (2002), for establishing ineligibility for the death penalty

as a result of an intellectual disability.

       Based on further direction from the United States Supreme Court in Hall,

reaffirmed in Brumfield, courts must be guided by established medical practice and

psychiatric and professional studies that elaborate on the purpose and meaning of

each of the three prongs for determining an intellectual disability. See Hall, 134 S.

Ct. at 1993. In other words, in determining the definition of an intellectual

disability, the informed assessments of medical experts cannot be disregarded. Id.

at 2000. The experts review all three prongs together because determining

intellectual disability is a “conjunctive and interrelated assessment.” Id. at 2001.

                                         FACTS

       Sonny Boy Oats, Jr., was tried and convicted of the December 1979 robbery

of a convenience store and the first-degree murder of the store clerk. This Court

affirmed Oats’s conviction on direct appeal but held that the trial court erroneously

found three aggravating factors and remanded to the trial court for entry of a new

sentencing order. Oats v. State, 446 So. 2d 90, 95-96 (Fla. 1984). On remand, the

trial court reweighed the valid aggravators and reimposed the death penalty, a


                                             -5-
sentence that this Court then affirmed. Oats v. State, 472 So. 2d 1143 (Fla. 1985).

This Court later affirmed the denial of Oats’s initial motion for postconviction

relief and denied his petition for a writ of habeas corpus. Oats v. Dugger, 638 So.

2d 20 (Fla. 1994).

       During the 1990 postconviction proceedings, Oats asserted that his trial

counsel rendered ineffective assistance by failing to present statutory and

nonstatutory mitigation evidence at the penalty phase based on an inadequate

investigation of the available mitigation, including evidence pertaining to Oats’s

intellectual disability. In addition, Oats alleged that he was resentenced when he

was incompetent. Numerous experts presented testimony regarding Oats’s

intellectual disability.

       Dr. Robert Phillips testified that Oats “is a man of significantly substandard

intellectual capacity as a result of a degree of mental retardation that is well

documented in evaluations that have been performed by examiners of the State of

Florida and are certainly consistent with the findings of my examination and a

subsequent review of records.” He further discussed Oats’s “longstanding history

of maladaptive behavior to societal expectations which is not inconsistent with

individuals that we find to be mentally retarded.” Dr. Phillips concluded that Oats

“lacks the intellectual capacity to truly formulate with any degree of specificity

well-conceived and executed plans. He rather tends to act far more on impulse


                                          -6-
driven both by his emotion, sometimes overridden by the illicit substances which

he may have on board but, by in large [sic], it’s a moment-to-moment kind of

decision-making process.”

      Dr. Joyce Carbonell testified that Oats “scores in the range that’s referred to

in general as mental deficiency. He is in the mildly mentally retarded range of

functioning. His scores place him in the lowest one percent of the population in

terms of his abilities, his intelligence compared to the rest of the population.” She

then opined that Oats’s full-scale IQ score was 61, his performance score was 62,

and his verbal score was 64. Further, Dr. Carbonell detailed how, based on reports

from Oats’s family and his school record, his social and medical history was

likewise consistent with possessing an intellectual disability. Oats failed to timely

reach numerous developmental milestones, including learning how to walk and

talk on time; poor performance in school, with decreasing performance as he aged;

and poor performance on an IQ screening test that was given during elementary

school. Moreover, he had “serious deficits in adaptive functioning,” was able to

communicate at only a very low level, and could read at only a third-grade level.

In addition, Oats was never able to maintain steady employment and always stayed

with family that could take care of him.

      Dr. Frank Carrera, who had testified during the penalty phase, previously

evaluated Oats in 1980 to determine Oats’s sanity and competency for the original


                                           -7-
trial. While Dr. Carrera believed that Oats was competent, trial counsel never

requested Dr. Carrera to evaluate whether Oats had an intellectual disability or

whether any statutory mitigation applied. Dr. Carrera thereafter reviewed Dr.

Carbonell’s testing results and did not see any errors as to her findings that Oats

had an intellectual disability. Moreover, he opined that Oats’s IQ testing, which

reflected an IQ of 61, was consistent with what he observed.

      The State then called Dr. Charles Mutter, who had been retained by the State

in the original trial proceedings to render an opinion as to several issues: (1)

whether Oats was competent to stand trial in February 1981; (2) whether Oats’s

waiver of his Miranda4 rights in 1979 was knowing and intelligent; and (3) whether

Dr. Carrera’s 1980 competency evaluation was sufficient. Dr. Mutter submitted a

joint report with Dr. Leonard Haber and concluded that Oats was competent. Dr.

Mutter noted that Oats had certain intellectual limits and impairments, but nothing

that would affect his competency. While Dr. Mutter was not asked to perform

testing as to whether Oats was intellectually disabled, Dr. Mutter later reviewed his

prior test results and his contact with Oats and opined at the 1990 evidentiary

hearing that Oats was “borderline to very mild retarded.” He further discussed that




      4. Miranda v. Arizona, 384 U.S. 436 (1966).


                                         -8-
Oats had deficits in adaptive functioning and was unable to learn from past

experiences in certain circumstances.

      Dr. Haber, who filed the joint report with Dr. Mutter, disagreed that Oats

should be considered to have an intellectual disability. Although Dr. Haber never

performed any IQ testing to establish Oats’s intelligence, based on his in-person

interview with Oats, Dr. Haber did not believe that Oats’s intelligence testing score

was accurate and estimated that a more accurate IQ score was between 70 and 90.

Dr. Haber was then asked whether, based on the three prongs set forth in the

relevant DSM, Oats would qualify as having an intellectual disability, to which Dr.

Haber testified, “It is fair to say that based on the scores as reported, and the school

record as reported, that Mr. Oats would seem to fit the category.” He further

agreed that if the IQ test results were accepted as accurate, Oats should be

diagnosed with an intellectual disability under the relevant DSM criteria. Dr.

Haber stressed that his focus was more on whether Oats understood the court

proceedings.

      In addition to the expert testimony, defense counsel also presented lay

witnesses, Freddie Oats and Idella Russ, who grew up with Oats while he was

being raised by his aunt and uncle, who were his foster parents. They testified as

to Oats’s intellectual abilities as a child, observing that Oats was slow in learning

new information and that they had to help Oats tremendously. Freddie, Oats’s


                                         -9-
younger brother, testified that Oats had been a grade ahead of Freddie until Oats

was retained in the second grade. Even after he was held back, however, Oats was

not able to comprehend the same things as the other children in the class, so the

teachers pulled him to the side and tried to work with him individually.

Throughout their schooling, Freddie was in about half of Oats’s classes, and he

helped Oats with his work. Oats rarely passed tests on his own, so Freddie let Oats

copy his answers. If Freddie was not in his class, Oats would find another student

to copy from and cheat enough to “get by.” At home, Oats had difficulty following

instructions and would then get punished because he did not follow the directions

correctly.

      Idella Russ was raised in the same household as Oats and provided similar

testimony, recalling that Oats was slow in learning something new. Even when

Oats tried to memorize Bible verses and would choose the shortest verse possible,

such as “Jesus wept,” his siblings had to remind him of the verse because he kept

forgetting it. When Oats was called upon in class, he seemed as though he had no

idea what the teacher was asking. Oats liked going to school to get away from his

foster mother’s beatings, but his performance in school was very poor. Oats

progressed through school by copying other people’s work and test answers. Oats

needed a person to sit down with him and explain how to do something before he




                                       - 10 -
understood. He eventually dropped out of school in the tenth grade and did not

return.

      Further, while in the care of his foster parents, Oats was beaten severely,

including being hit on the head with an extension cord and a hoe handle, resulting

in scars to his head. Once, in a fall from a tree house, a corner of plywood hit Oats

in the head, causing profuse bleeding. Oats was awake but so drowsy from the

injury that he was unable to get up or move, and after his fall, he suffered terrible

headaches. Following an escape from his aunt’s house at age sixteen, he returned

home to his biological parents, but fell through a porch, leading to another

significant head injury. Although Oats has numerous scars on his head from these

injuries, he was not taken to a doctor for many of them. Testimony established that

these childhood injuries could have caused an intellectual disability.

      During the 1990 postconviction proceedings, based on all of this evidence,

the State conceded that Oats without a doubt had an intellectual disability under the

applicable DSM, specifically stating, “Under the DSM-III criteria, the defendant

falls in the mildly mentally retarded area. No doubt about that.” However,

according to the State, this did not entitle Oats to relief on his ineffective assistance

of counsel claim because the jury already heard evidence that Oats had low

intelligence, and it would not have recommended a life sentence even if the

additional evidence had been presented. The postconviction court denied relief on


                                         - 11 -
the claim that defense counsel was ineffective, finding that there was not a

reasonable possibility that either the jury’s recommendation or the ultimate

sentence would have been different, even if trial counsel had presented all of the

information. These proceedings occurred prior to the United States Supreme

Court’s decision in Atkins.

      In Atkins, 536 U.S. at 321, the Supreme Court held that the Eighth

Amendment prohibits the execution of an individual with an intellectual disability.

Relying on Atkins, Oats filed a timely motion seeking to vacate his death sentence

on the ground that he is intellectually disabled, and, ultimately, the circuit court

held an evidentiary hearing on Oats’s motion.

      During the evidentiary hearing in this proceeding, the parties entered into a

stipulation to admit the transcripts from the prior 1990 proceedings, as opposed to

recalling all of the witnesses, and the circuit court agreed. Two additional mental

health witnesses were presented: Dr. Denis Keyes and Dr. Harry McClaren. Dr.

Keyes specializes in intellectual disabilities and teaches courses on the subject. He

evaluated Oats in 2005, first administering the Stanford-Binet Intelligence Scale-

5th edition. On this test, Oats received a nonverbal IQ score of 47, a verbal IQ

score of 64, and a full scale IQ score of 54. Dr. Keyes testified that Oats’s scores

were consistent with having an intellectual disability.




                                         - 12 -
      Dr. Keyes further testified about Oats’s deficits in adaptive functioning,

discussing Oats’s inability to hold a job on a long-term basis, his struggles to read,

and how he always lived with family or friends who were able to assist him. He

concluded that Oats’s adaptive skills were deficient in practical, social, and

conceptual ways and that his problems had existed back to his childhood.

      As to the age of onset prong, Dr. Keyes interviewed numerous witnesses

who knew Oats as a child, including Oats’s brother and his cousin. Dr. Keyes also

found and questioned Oats’s fifth grade teacher, Florence McCrae, who described

Oats as having significant intellectual deficits in virtually every area. According to

McCrae, Oats “clearly had difficulty in learning” and needed the one-on-one

attention that was typically available only in special education. He had to be

placed in a special reading program for much younger children.

      When Oats was 13, he was given the Slosson Intelligence Test, which

indicated that Oats’s IQ was 70—a score that qualifies as intellectually disabled.

Based on Oats’s score on this screening test, the school district should have

performed additional testing, but none was given. However, as Dr. Keyes noted,

this testing occurred prior to the federal mandate requiring state educational

institutions to provide special accommodations for children with special needs, and

Oats attended a socioeconomically disadvantaged school in the 1960s in Florida.

In addition, Dr. Keyes discussed Oats’s traumatic childhood, his head injuries as a


                                        - 13 -
child, and how Oats was denied food as a child—all of which, he explained, could

cause an intellectual disability.

      On cross-examination, when asking about the manifestation prior to age 18

prong, the State recognized that this prong was “not really in play here,” to which

Dr. Keyes agreed:

            Q: And the third component that, you know, is not really in
      play here too much either, I suppose, is the pre-18 onset, right?
            A: Correct.

      In contrast to Dr. Keyes’s testimony, Dr. Harry McClaren reached a

different conclusion. He administered the WAIS-III to Oats in October 2005.

Oats’s scores were similar to his prior intelligence testing scores: his verbal IQ

score was 60, his nonverbal IQ was 72, and his full scale IQ was 62. While Dr.

McClaren recognized that Oats’s IQ scores had been incredibly consistent

throughout the years, only varying by a few points, he was concerned whether the

test was an underestimate.

      As to deficits in adaptive functioning, Dr. McClaren recognized that Oats

was never able to maintain employment for more than a few weeks, despite several

attempts, and had always lived with family or friends. Further, Oats was never

able to obtain a driver’s license. All of these factors could be evidence of deficits

in adaptive functioning, which would require concurrent deficits in at least two of

the following areas: communication, self-care, home living, social/interpersonal


                                        - 14 -
skills, use of community resources, self-direction, functional academic skills,

work, leisure, health, and safety. Dr. McClaren recognized that while this is the

definition as stated in the DSM, he did not assess this criteria under the DSM to

determine whether Oats had deficits in two out of the ten areas. Dr. McClaren was

sure that Oats currently has some adaptive deficits, but opined that this could be a

more recent decline.

      Dr. McClaren’s most significant concern was whether sufficient evidence

existed to establish that Oats’s intellectual disability manifested prior to age 18.

Dr. McClaren recognized that this prong is designed to differentiate an intellectual

disability from other conditions that may also affect an individual’s intelligence

and adaptive functioning but that occur later in life, such as dementia. In this case,

Dr. McClaren stressed that Oats was never “diagnosed” as having an intellectual

disability while he was a child, testifying that there was no “psychiatric evidence

of his subaverage intellect two standard deviations below the norm. The closest

thing we have is a test called the Slosson test, which is not as good, not as suitable

for classification of people as mentally retarded or not as a Wechsler or Stanford-

Binet.”

      In discussing this prong, Dr. McClaren relied on a misreading of this Court’s

opinion in Cherry, which is no longer good law after Hall. Dr. McClaren

explained his reasoning as to why the Slosson test was not sufficient to establish


                                         - 15 -
onset prior to age 18 because, “taking into consideration we have the Cherry

decision that talks about 70 means 70,” Oats had only a “70 on a test that is not

appropriate for the use of diagnosis of mental retardation.” Also, contrary to what

the Supreme Court would later hold in Hall, Dr. McClaren further noted that he

uses more scrutiny in determining whether an intellectual disability exists in capital

litigation.

       Dr. McClaren did observe that this was a “very close” case, given the

evidence of Oats’s low IQ scores presently and in the past, his poor grades in

school, and all of the head injuries and malnutrition Oats suffered during

childhood. Dr. McClaren explained that whether Oats was intellectually disabled

was unclear, though, because Oats was “undergoing pretty savage abuse and

neglect” as a child and the environmental turmoil could have been the cause of a

reduced performance on the Slosson Intelligence Test. Dr. McClaren also pointed

out that recently, the Florida Department of Corrections had concerns as to whether

Oats had an intellectual disability and also noted that Oats had a mild to moderate

emotional impairment.

       However, Dr. McClaren ultimately concluded that Oats does not have an

intellectual disability, relying on Oats’s lack of diagnosis before the age of 18, his

ability to escape from custody prior to his trial and travel to New York, his letter

writing, and his ability to have a three-month relationship with a woman in New


                                         - 16 -
York. Dr. McClaren recognized, however, that questions remained as to how

much Oats was able to accomplish by himself, as opposed to whether he was aided

by others in accomplishing many of these tasks. Dr. McClaren acknowledged that

his opinion differed from the prior mental health experts but explained this

discrepancy by saying that there is more scrutiny given now in diagnosing

intellectual disabilities, particularly in “capital litigation.”

       The circuit court denied Oats’s motion on the basis that Oats failed to

present sufficient evidence that his intellectual disability manifested before the age

of 18. Oats appealed.

       While the appeal was pending, the United States Supreme Court vacated this

Court’s decision in Hall v. State, 109 So. 3d 704, 711 (Fla. 2012), holding that this

Court erred in applying the definition of an “intellectual disability” too strictly and

that Florida’s definition was unconstitutional because it “create[d] an unacceptable

risk that persons with intellectual disability will be executed.” Hall, 134 S. Ct. at

1990. This Court ordered the parties to submit supplemental briefing to address

whether the decision in Hall impacted this case in any manner.

       After consideration of the record, the briefs, and the supplemental briefs, we

now conclude that the circuit court erred when it determined that Oats did not

establish that his intellectual disability manifested prior to the age of 18.

Accordingly, we reverse the circuit court’s order and remand for the circuit court


                                           - 17 -
to make additional findings after applying the recent Supreme Court decision in

Hall and the correct legal standards.

                                     ANALYSIS

      Oats raises five issues in this Court: (1) the trial court erred in denying his

challenge to his sentence of death based on his intellectual disability; (2) Oats was

deprived of his constitutional rights when the expert appointed by the trial court

communicated directly with the State and did not act as a “court expert”; (3) the

trial court improperly curtailed Oats’s cross-examination of Dr. McClaren; (4) the

trial court committed fundamental error by failing to act in a neutral manner during

the evidentiary hearing; and (5) the burden of proof in section 921.137,

determining whether a capital defendant is intellectually disabled, is

unconstitutional. Because we conclude that the circuit court erred in its analysis of

the intellectual disability claim and that Oats is entitled to a new evidentiary

hearing with the benefit of Hall, we address only the first issue.

      In reviewing the circuit court’s determination that Oats is not intellectually

disabled, “this Court examines the record for whether competent, substantial

evidence supports the determination of the trial court.” State v. Herring, 76 So. 3d

891, 895 (Fla. 2011). We “do[] not reweigh the evidence or second-guess the

circuit court’s findings as to the credibility of witnesses.” Brown v. State, 959 So.




                                         - 18 -
2d 146, 149 (Fla. 2007). However, we apply a de novo standard of review to any

questions of law. Herring, 76 So. 3d at 895.

      We begin our analysis by reviewing the relevant law and the impact of the

United States Supreme Court’s recent decision in Hall on Florida’s standard in

determining whether a defendant has an intellectual disability. We then consider

the errors in the circuit court’s order.

                  I. Atkins & Recent Supreme Court Precedent

      Prior to the United States Supreme Court’s 2002 holding in Atkins, Florida

had already implemented a prospective prohibition on imposing the death sentence

upon an intellectually disabled defendant. See ch. 2001-202, § 1, Laws of Fla.

(enacting § 921.137, Fla. Stat. (2001)). Based on numerous considerations,

including the trend within various legislative bodies to eliminate capital

punishment for intellectually disabled defendants, the United States Supreme Court

declared in Atkins that executing a person with an intellectual disability

contravenes the Eighth Amendment. Atkins, 536 U.S. at 318. The Supreme Court

further recognized that an intellectual disability consists of three prongs: (1)

subaverage intellectual functioning; (2) significant limitations in adaptive skills;

and (3) manifestation of the condition before age 18. Id. However, the Supreme

Court did not elaborate as to how this standard was to be implemented and left this

determination to the states, including “the task of developing appropriate ways to


                                           - 19 -
enforce the constitutional restriction upon [their] execution of sentences.” Id. at

317.

       Once the Atkins ruling extended this protection to all capital defendants, this

Court immediately implemented procedures to ensure that defendants could

present evidence to establish whether they were intellectually disabled. In

determining what constituted an intellectual disability, this Court looked to the

statutory definition set forth in section 921.137(1), Florida Statutes (2002), and

held that in considering whether a defendant had “subaverage intelligence,” a

defendant must establish an IQ score of 70 or less. Cherry, 959 So. 2d at 712-14.

This Court further held that courts were precluded from considering the application

of the standard error of measurement as to the IQ score. Id. at 712-13.

       This Court was asked to reconsider Cherry’s holding in Hall, 109 So. 3d at

707-08, a case that is substantially similar to the one before us now. In that case,

Freddie Lee Hall had been previously found to have an intellectual disability, but

since his crime occurred prior to Florida’s statutory prohibition on imposing a

sentence of death upon the intellectually disabled, such evidence was considered

only as a mitigating circumstance. Id. at 706. Relying on the prior determination

by the trial court that found Hall to be intellectually disabled, Hall sought relief

after Atkins. Id. at 706-07. However, the postconviction court determined that

Hall could not be considered intellectually disabled under Florida’s statutory


                                         - 20 -
definition of the term because Hall’s IQ scores varied between 71 and 73 and thus

did not constitute “subaverage intelligence.” Id. at 707. In a 4-2 decision, this

Court affirmed the postconviction court’s finding of no intellectual disability based

on the strict cut-off score of 70, as set forth in Cherry. Id. at 709-10.

      The United States Supreme Court granted certiorari in Hall and held that the

manner in which Florida defined an intellectual disability for capital litigation

violated the Eighth Amendment because it “disregards established medical

practice” and “creates an unacceptable risk that persons with intellectual disability

will be executed.” Hall, 134 S. Ct. at 1990, 1995. Specifically, the Supreme Court

stated that Florida’s bright-line rule

      disregards established medical practice in two interrelated ways. It
      takes an IQ score as final and conclusive evidence of a defendant’s
      intellectual capacity, when experts in the field would consider other
      evidence. It also relies on a purportedly scientific measurement of the
      defendant’s abilities, his IQ score, while refusing to recognize that the
      score is, on its own terms, imprecise.
Id. at 1995. In determining whether an interpretation of intellectual disability

violates the Eighth Amendment, the Supreme Court relied on psychiatric and

professional studies that elaborated on the purpose and meaning of the prong at

issue. Id. at 1993. In addition, the Supreme Court stressed that a single factor

should not be considered dispositive because the three factors must be considered

together in an interrelated assessment. Id. at 2001 (relying on the DSM-5, at 37

(“[A] person with an IQ score above 70 may have such severe adaptive behavior


                                         - 21 -
problems . . . that the person’s actual functioning is comparable to that of

individuals with a lower IQ score.”)).

      The United States Supreme Court emphasized these same principles in its

most recent decision pertaining to the intellectual disability analysis, in which the

Court held that the defendant was entitled to an evidentiary hearing on his

intellectual disability claim. See Brumfield, 135 S. Ct. at 2279. The Supreme

Court first reiterated that an IQ test result of 75 is “entirely consistent with

intellectual disability,” relying on its prior decision in Hall. Id. at 2277. The

Supreme Court then addressed the next two prongs, determining that the record

contained “substantial grounds to question [the defendant’s] adaptive functioning,”

based on numerous examples from the defendant’s childhood, including his low

birth weight, that he was placed in special classes in the fifth grade, and that he had

difficulty processing information. Id. at 2280. Further, the Supreme Court noted

that the evidence pertaining to his low birth weight and his intellectual

shortcomings as a child provided “ample evidence” that the defendant’s disability

manifested before adulthood and thus required an evidentiary hearing so that the

trial court could hear all relevant evidence and determine whether the defendant is

intellectually disabled. Id. at 2283.

                      II. Errors in the Circuit Court’s Order




                                          - 22 -
      Considering the circuit court’s order in light of this precedent, we reverse for

three reasons. First, while we recognize that the circuit court did not have the

benefit of Hall, the Supreme Court has now stated that courts must consider all

three prongs in determining an intellectual disability, as opposed to relying on just

one factor as dispositive. Hall, 134 S. Ct. at 2001. We conclude that the circuit

court erred in relying solely on the third prong in denying Oats’s claim.

      We caution, however, that our decision should not be interpreted as

establishing that this will necessarily constitute a per se reversible error. But as the

Supreme Court has now recognized, 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 other prongs. Id. (holding that this is a

“conjunctive and interrelated assessment” and relying on the DSM-5, which

provides as an example that “a person with an IQ score above 70 may have such

severe adaptive behavior problems . . . that the person’s actual functioning is

comparable to that of individuals with a lower IQ score”).

      Second, the circuit court erred in concluding that Oats failed to meet his

burden without even considering or weighing all of the testimony that Oats

presented. The circuit court agreed to the parties’ stipulation to consider the

mental health evidence presented in the 1990 proceedings pertaining to whether

Oats had an intellectual disability, as opposed to requiring the parties to recall all


                                         - 23 -
of those witnesses who testified previously regarding Oats’s intellectual disability.

However, in reaching its decision, the circuit court stated that it “accept[ed]” the

1990 postconviction court’s ruling and was “not in a position to reevaluate the

credibility of the witnesses who testified or the evidence” the postconviction court

considered in those prior proceedings. The circuit court then denied Oats’s claim,

concluding that “[t]here is no competent evidence that the defendant suffered from

any mental retardation prior to the age of 18.”

      The circuit court’s refusal to consider the 1990 evidence of Oats’s

intellectual disability was error. The prior proceedings did not determine whether

Oats is intellectually disabled under the statutory definition and thus ineligible for

the death penalty, as the circuit court itself recognized. The case was in a different

procedural posture at that time, particularly since the bar against the execution of

an intellectually disabled individual did not then exist. If the circuit court, after

reviewing the transcripts, determined that it was unable to evaluate the credibility

of the witnesses or consider the evidence submitted in the prior postconviction

proceedings, it was required to permit the parties to recall those witnesses in a new

proceeding and submit the evidence so that all of the relevant evidence could be

considered and weighed.

      In fact, in the 1990 postconviction proceedings, Oats submitted so much

evidence establishing his intellectual disability that the State, in its written closing


                                         - 24 -
argument to the postconviction court, stated, “Under the DSM-III criteria, the

defendant falls in the mildly mentally retarded area. No doubt about that.” Thus,

this evidence clearly should have been considered in the current proceeding.

      Finally, reversal is warranted because the circuit court applied the incorrect

legal standard in analyzing whether Oats’s intellectual disability “manifested

during the period from conception to age 18.” § 921.137, Fla. Stat. As the

American Association on Intellectual and Developmental Disabilities explains, an

intellectual disability is a developmental disability and thus this prong ensures that

there was “evidence of the disability during the developmental period.” Am. Ass’n

on Intellectual & Developmental Disabilities, Definition of Intellectual Disability

http://aaidd.org/intellectual-disability/definition#.VNDqAyvF-JQ (last visited

December 2, 2015). Likewise, the United States Supreme Court has recognized

that this prong simply requires that a defendant demonstrate that his “intellectual

deficiencies manifested while he was in the ‘developmental stage’—that is, before

he reached adulthood.” Brumfield, 135 S. Ct. at 2282.

      In concluding that “[t]here is no competent evidence that the defendant

suffered from any mental retardation prior to the age of 18,” the circuit court rested

solely upon the testimony by the State’s expert witness, Dr. McClaren, that Oats

had a “[l]ack of diagnosis before 18”—testimony that the circuit court quoted in

denying relief:


                                        - 25 -
              Well, because, first look at the onset prior to age 18. We don’t
       have any psychiatric evidence of his subaverage intellect two standard
       deviations below the norm. The closest thing that we have is a test
       called the Slosson, S-l-o-s-s-o-n, test, which is not as good, not as
       suitable for classification of people as mentally retarded or not as a
       Wechsler or Stanford-Binet.
              Also, that test was given at age 13, when he was by all
       accounts, undergoing pretty savage abuse and neglect and probably
       questioning his paternity and who his mother and father were.
              ....
              Lack of diagnosis before 18, even though there was some
       evidence that he had been identified with the screening tests with an
       IQ of 70. He is able to progress through school, despite having a very
       physically abusive and probably very confusing upbringing.
(Emphasis added.) The circuit court did not reject the expert witness testimony

presented by Oats in this proceeding or find that any of that testimony was not

credible. Instead, the circuit court simply accepted Dr. McClaren’s position that,

although the intelligence test given to Oats as a child produced an IQ score of 70,

this test could not be relied upon to establish the manifestation of intellectual

disability before age 18 because this test was “not as good . . . as a Wechsler or

Stanford-Binet” and was not suitable by itself to diagnose a person as having an

intellectual disability.

       Contrary to the circuit court’s decision, section 921.137 requires a showing

only that an intellectual disability “manifested during the period from conception

to age 18.” § 921.137, Fla. Stat. (emphasis added). The term “manifest” means

“[t]o show or demonstrate plainly.” The American Heritage Dictionary 1067 (5th

ed. 2011). Accepting the position that “manifested” equates to “diagnosed” would


                                         - 26 -
render the first two prongs of the statutory test for an intellectual disability moot,

as the only way to find an intellectual disability would be if the diagnosis already

existed by the age of 18.

      Moreover, this Court has never held that the defendant must have been given

a specific IQ test prior to the age of 18 in order to find an intellectual disability.

That inflexible view would not be supported by the United States Supreme Court’s

recent enunciations in Hall and Brumfield. See Brumfield, 135 S. Ct. at 2282

(stating that this prong merely requires that a defendant demonstrate that his

intellectual deficiencies manifested “before he reached adulthood”); Hall, 134 S.

Ct. at 1994 (recognizing that, based on a consensus within the medical community,

this prong simply requires the “onset of these deficits during the developmental

period”). As even Dr. McClaren himself recognized, the purpose of requiring the

manifestation of an intellectual disability prior to age 18 is to distinguish an

intellectual disability, which a person must have had as a child, from other

conditions that may cause an individual’s intelligence and adaptive functioning to

decline later in life, such as dementia. In other words, a person cannot acquire an

intellectual disability after childhood.

      It appears that Dr. McClaren’s view may have been impacted by a

misreading of this Court’s prior opinion in Cherry. Specifically, when Dr.

McClaren was asked with more specificity as to why he did not find onset prior to


                                           - 27 -
age 18, Dr. McClaren testified that while Oats was given a Slosson IQ screening

test at age 13, this was not sufficient to establish onset prior to age 18 because he

had to “tak[e] into consideration we have the Cherry decision that talks about 70

means 70.” He concluded that Oats had only a “70 on a test that is not appropriate

for the use of diagnosis of mental retardation.” Of course, our holding in Cherry

did not address onset before age 18, and the inflexible “70 means 70” rule of

Cherry has now been overturned by the United States Supreme Court in Hall.

      Accordingly, as a result of these legal errors, the circuit court incorrectly

evaluated Oats’s claim under the wrong standard. In fact, the evidence pertaining

to the onset prior to age 18 prong is comparable to that in Hall, another case in

which all of the parties previously recognized that the defendant suffered from

intellectual disability—a premise that was challenged only after Atkins barred the

execution of those with an intellectual disability.

      Specifically, in Hall, 134 S. Ct. at 1990-91, as it relates to the age of onset

prong, the United States Supreme Court noted that Hall’s teachers identified Hall

as being intellectually disabled on numerous occasions and that his siblings

testified that there was “something ‘very wrong’ with [Hall] as a child” and he was

“slow with speech and . . . slow to learn.” Moreover, in a strikingly similar manner

to this case, Hall bore the brunt of physical abuse within the family and his mother

constantly beat him because Hall was slow and made simple mistakes. Id. at 1991.


                                        - 28 -
Based on that type of evidence, the Supreme Court noted that the age of onset

factor was not even “at issue” in that case. Id. at 1994. See also Van Tran v.

Colson, 764 F.3d 594, 613-14 (6th Cir. 2014) (remanding for a new evidentiary

hearing because the state postconviction court erroneously relied on the absence of

any test of intellectual functioning before the age of 18 and discounted the fact that

the defendant’s childhood was marked by certain impairments during the

developmental period, including his delay in reaching various milestones, because

a multitude of factors could have caused those delays).

      Similarly, evidence presented in this case establishes that Oats was slow to

reach important developmental milestones, and based on accounts from Oats’s

siblings and teachers, Oats was very slow and constantly struggled to understand

basic concepts and needed the type of one-on-one interaction that was available

only in special education. Further, like in Hall, Oats was subjected to abuse based

on his lack of ability to understand requests from his foster parents.

      In its decision in Hall, the Supreme Court clarified that the appropriate

definition to use in determining whether an intellectual disability exists is the

definition that is used by skilled professionals in making this determination in all

contexts, including those “far beyond the confines of the death penalty,” such as

special education, medical treatment plans, and access to social programs. 134 S.

Ct. at 1993. Based on certain aspects of Dr. McClaren’s testimony, it is unclear


                                         - 29 -
whether he employed a heightened standard because this is a capital case, as

opposed to the standard that would normally apply to determine an intellectual

disability in other contexts. However, the record clearly shows that Dr. McClaren

was influenced by his misreading of Cherry and imposed additional requirements

not recognized by the DSM—requirements that have since been explicitly

disapproved. Thus, we direct the circuit court to permit the parties an opportunity

for a new evidentiary hearing so that the parties may present additional evidence,

including whether the experts’ opinions have changed from when they initially

made their conclusions or have been otherwise affected by Hall, Brumfield, and

other developments in the law.

                                   CONCLUSION

      For all these reasons, we conclude that the circuit court erred in determining

that Oats failed to establish onset of his intellectual disability prior to the age of 18.

The evidence presented to the circuit court in fact strongly leads to the conclusion

that Oats established both his low IQ and onset of an intellectual disability prior to

the age of 18. However, because the circuit court did not analyze the remaining

prongs, and because neither the circuit court nor the parties and their experts had

the benefit of Hall, we remand for further proceedings consistent with this opinion,

including providing the parties with an opportunity to present additional evidence




                                          - 30 -
at an evidentiary hearing to enable a full reevaluation of whether Oats is

intellectually disabled.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., concur in result.

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

An Appeal from the Circuit Court in and for Marion County,
     Hale Ralph Stancil, Judge - Case No. 421980CF000016AXXXXX

Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Martin
J. McClain, Special Assistant, Capital Collateral Regional Counsel, Southern
Region, and Michael Chance Meyer, Staff Attorney, Capital Collateral Regional
Counsel, Southern Region, Fort Lauderdale, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and James Donald
Riecks, Assistant Attorney General, Daytona Beach, Florida,

      for Appellee




                                        - 31 -
