          Supreme Court of Florida
                                 ____________

                                 No. SC15-1441
                                 ____________

                           LEONARDO FRANQUI,
                                Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                                 ____________

                                 No. SC15-1630
                                 ____________

                           LEONARDO FRANQUI,
                                Appellant,

                                       vs.

                            STATE OF FLORIDA,
                                 Appellee.

                               [January 26, 2017]

PER CURIAM.

      In these consolidated appeals, Leonardo Franqui challenges the summary

denial of his successive motions to vacate judgments of conviction and sentence

under Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction
pursuant to article V, section 3(b)(1), of the Florida Constitution. Franqui contends

he is entitled to an evidentiary hearing on his claim of intellectual disability1

pursuant to the decision of the United States Supreme Court in Hall v. Florida, 134

S. Ct. 1986 (2014). For the reasons discussed below, we agree and remand both

cases to the circuit court for a single evidentiary hearing.2

                 FACTS AND PROCEDURAL BACKGROUND

      Franqui was sentenced to death for the 1991 murder of Raul Lopez. See

Franqui v. State, 699 So. 2d 1312, 1316 (Fla. 1997) (the Hialeah case). Franqui

was separately sentenced to death for the 1992 murder of law enforcement officer

Steven Bauer. See Franqui v. State, 804 So. 2d 1185, 1190-91 (Fla. 2001) (the




        1. The term originally used in these proceedings was “mentally retarded.”
This terminology has been changed to “intellectually disabled,” as recognized in
the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM). Both the Florida Statutes and the Florida Rules of Criminal Procedure
have been modified to conform to the change in terminology. Accordingly,
throughout this opinion, we use the term “intellectually disabled.”
       2. Franqui also asserts that he is entitled to relief from his death sentences
based upon the decisions in Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v.
State, 202 So. 3d 40 (Fla. 2016). Because we are remanding Franqui’s cases for an
evidentiary hearing on intellectual disability, we decline to address this claim at the
present time.


                                          -2-
North Miami case).3 We affirmed both sentences. See Franqui, 699 So. 2d at

1329; Franqui, 804 So. 2d at 1199.

                                  The Hialeah Case

      During the initial postconviction proceedings in the Hialeah case, Franqui

alleged in a supplement that he was intellectually disabled and, therefore, could not

be executed pursuant to Atkins v. Virginia, 536 U.S. 304 (2002). See Franqui v.

State, 59 So. 3d 82, 89-90 (Fla. 2011). After the circuit court denied

postconviction relief, Franqui appealed; however, because the lower court had

failed to rule upon the intellectual disability claim, this Court relinquished

jurisdiction so that it could be addressed. See id. at 90. Thereafter, the circuit

court summarily denied the claim. See id. After the case was returned, this Court

reversed the summary denial and again relinquished jurisdiction with directions

that an evidentiary hearing be held. See Franqui v. State, 14 So. 3d 238, 239 (Fla.

2009). We directed the lower tribunal to consider the requirements delineated in

Cherry v. State, 959 So. 2d 702 (Fla. 2007), for an intellectual disability

determination under the applicable statute, which provided:

             As used in this section, the term “mental retardation” means
      significantly subaverage general intellectual functioning existing
      concurrently with deficits in adaptive behavior and manifested during

      3. For ease of understanding, we refer to each case by the location where the
murder occurred. The Hialeah case is the subject of case number SC15-1441, and
the North Miami case is the subject of case number SC15-1630.


                                         -3-
      the period from conception to age 18. The term “significantly
      subaverage general intellectual functioning,” for the purpose of this
      section, means performance that is two or more standard deviations
      from the mean score on a standardized intelligence test specified in
      the rules of the Agency for Persons with Disabilities. The term
      “adaptive behavior,” for the purpose of this definition, means the
      effectiveness or degree with which an individual meets the standards
      of personal independence and social responsibility expected of his or
      her age, cultural group, and community.

§ 921.137(1), Fla. Stat. (2009). Based upon this language, we explained that

      [The defendant] must establish that he has significantly subaverage
      general intellectual functioning. If significantly subaverage general
      intellectual functioning is established, [the defendant] must also
      establish that this significantly subaverage general intellectual
      functioning exists with deficits in adaptive behavior. Finally, he must
      establish that the significantly subaverage general intellectual
      functioning and deficits in adaptive behavior manifested before the
      age of eighteen.
Franqui, 14 So. 3d at 239 (alterations in original) (quoting Cherry, 959 So. 2d at

711). In Cherry, 959 So. 2d at 712-13, this Court held that a strict cutoff IQ score

of 70 is required for a defendant to establish the significantly subaverage general

intellectual functioning prong of intellectual disability. Under Cherry, where a

defendant could not establish that he has an IQ of 70 or below, the court need not

consider the remaining two prongs of the determination. See id. at 714.

      Upon relinquishment, the circuit court appointed Dr. Enrique Suarez to

evaluate Franqui for intellectual disability. Franqui subsequently notified the court

that in 2003, Dr. Trudy Block-Garfield had conducted testing on Franqui at the

request of Franqui’s prior collateral counsel. She determined that Franqui’s full-


                                        -4-
scale IQ score on the Wechsler Adult Intelligence Scale—Third Edition (WAIS-

III) was 75, and his composite score on the Stanford-Binet Intelligence Scale was

76. According to the report of Dr. Block-Garfield, “the DSM-IV does not consider

an IQ of 75 as being in the mentally retarded range, rather it is in the Borderline

range of functioning.” In Dr. Block-Garfield’s opinion, it was highly likely that

Franqui’s true IQ score fell between 71 and 80. Her report also touched upon

adaptive behavior:

       Apart from actual IQ, there is also an adaptive level of functioning
       that must be considered. Mr. Franqui’s functioning at the time of his
       arrest was certainly somewhat impaired. He had difficulties in
       maintaining a job, but the likelihood that this was due to an inability
       to function is somewhat limited. Rather this may have been
       attributable to his immaturity and general impulsive behavior.
       Certainly, he was in some fashion supporting a family which could
       not be accomplished by an individual who is mentally retarded.
       Immaturity was a factor and this still seems to be the case to some
       extent today.
Dr. Suarez’s testing revealed a full-scale IQ score of 75 on the WAIS-IV.

However, Dr. Suarez administered five symptom validity tests to determine if

Franqui was giving his best efforts. He concluded that Franqui’s scores indicated

malingering with the intent to perform extremely poorly on the tests administered

and strongly suggested that the score on the WAIS-IV underestimated Franqui’s

actual abilities.

       Franqui filed a motion asking the circuit court to declare unconstitutional

this Court’s interpretation in Cherry of intellectual disability on the basis that it


                                          -5-
violates Atkins. In the motion, he acknowledged that the circuit court was “bound

by the Florida Supreme Court’s decision in Cherry and that, under the analysis of

Cherry, he cannot meet the first prong of the mental retardation test as a matter of

law.” He further recognized that without a declaration of unconstitutionality, the

circuit court would be required to deny his claim under Cherry.

         During a status hearing, counsel for Franqui stated that while experts could

testify on the adaptive deficits prong of intellectual disability, “if you don’t meet

[the IQ] prong, that’s the end of the story, that’s where we find ourselves now.”

The circuit court denied Franqui’s motion to declare the Court’s interpretation in

Cherry of intellectual disability unconstitutional. During the evidentiary hearing,

the parties stipulated into evidence the reports of Dr. Block-Garfield and

Dr. Suarez and also stipulated to the fact that if these experts were called to testify,

they would testify consistently with the contents of their reports. The circuit court

subsequently denied Franqui’s Atkins claim.

         Upon return of the case, Franqui asked this Court to revisit the decision in

Cherry and also that of Nixon v. State, 2 So. 3d 137 (Fla. 2009), which reached the

same conclusion as Cherry on the strict cutoff IQ score of 70. See Franqui, 59 So.

3d at 92. We affirmed the denial of the intellectual disability claim and rejected

Franqui’s assertion that our interpretation of Atkins was unconstitutional. See id.

at 94.


                                           -6-
                               The North Miami Case

      In a successive postconviction motion filed in the North Miami case,

Franqui similarly contended that his death sentence violates Atkins. Franqui

asserted, in part, that Dr. Jethro Toomer testified during the trial in the Hialeah

case that Franqui was intellectually disabled based upon an IQ score of less than

60.4 The State attached to its response to the motion the evaluations of Dr. Block-

Garfield and Dr. Suarez from the Hialeah case. After conducting a case

management hearing, the circuit court summarily denied the successive motion.

The court found that the Atkins claim was time-barred, and also that the issue of

intellectual disability had been litigated and resolved adversely to Franqui in the

Hialeah case. As to the latter conclusion, the circuit court stated that “[the]

Defendant cannot be mentally retarded in one case and not in the other, as that

would defy the definition of mental retardation.”

      On appeal, this Court affirmed the denial of Franqui’s intellectual disability

claim, stating:

      [T]he only IQ tests that are acceptable for purposes of proving mental
      retardation are the Wechsler Intelligence Scale and the Stanford-Binet
      Intelligence Scale. See § 921.137(1), Fla. Stat.; Fla. R. Crim. P.
      3.203(b); Fla. Admin. Code 65G–4.011. Here, Franqui alleged that
      his IQ score was under 70 based on a report prepared in 1993, but the
      test utilized to measure his IQ was not the Wechsler Intelligence Scale

     4. Dr. Toomer also administered to Franqui the WAIS-Revised in 1993, and
Franqui’s full-scale IQ score on that test was 83. See Franqui, 59 So. 3d at 91.


                                         -7-
      or the Stanford-Binet Intelligence Scale. His scores on the acceptable
      IQ tests were above 70. See Franqui, 59 So. 3d at 92 (finding, based
      on the same evidence presented here, that the circuit court had
      competent, substantial evidence—two separate doctors found
      Franqui’s IQ was above 75 on the rule-approved psychological
      examinations—to find that Franqui is not mentally retarded). In
      addition, he did not plead whether the mental retardation manifested
      before he was 18 years of age. Thus, Franqui cannot demonstrate that
      he is mentally retarded under Florida law.

Franqui v. State, 118 So. 3d 807, 2013 WL 2211675 *2 (Fla. 2013).

                                 The Present Cases

      In 2014, the United States Supreme Court held that this Court’s

interpretation in Cherry of Florida’s intellectual disability statute was

unconstitutional because it created an unacceptable risk that intellectually disabled

individuals would be executed. See Hall, 134 S. Ct. at 1990, 1994. The Supreme

Court held that the standard error of measurement (SEM) must be taken into

account in determining whether an individual meets the first prong of intellectual

disability. See id. at 2001 (“[I]n using these scores to assess a defendant’s

eligibility for the death penalty, a State must afford these test scores the same

studied skepticism that those who design and use the tests do, and understand that

an IQ test score represents a range rather than a fixed number.”). The Supreme

Court further noted that a person with an IQ score over 70 may have such severe

adaptive deficits that his actual functioning is comparable to someone with a lower

IQ score. See id. at 2001. Therefore, the Supreme Court concluded that the



                                         -8-
determination of intellectual disability must be a “conjunctive and interrelated

assessment” and ultimately held that where a defendant’s IQ score is 75 or below,

he must be given the opportunity to present evidence of intellectual disability,

“including deficits in adaptive functioning over his lifetime.” Id.

      Franqui filed successive motions for postconviction relief in his capital cases

contending that this Court’s prior rejections of his claim were based upon Cherry,

an interpretation of the intellectual disability statute which the Supreme Court

found unconstitutional in Hall. Franqui asserted that he was entitled to an

additional evidentiary hearing on his claim. As previously discussed, the circuit

court summarily denied both motions.5 In the Hialeah case, the court concluded

that Hall has “no effect on the individuals who were previously found not to be . . .

intellectually disabled[] due to a lack of deficits in adaptive functioning.” The

court noted that, even if Franqui’s IQ score satisfied the first prong of intellectual

disability after taking the SEM into account, Dr. Block-Garfield’s report did not

find deficits in adaptive functioning. The circuit court then stated:

      His prior motion was denied by this court for failure to meet any of
      the prongs. IQ was only one of [the] factors considered, as noted by
      the prior order. Defendant had a hearing and an opportunity to
      present evidence on all 3 prongs. His own expert did not find deficits
      in adaptive functioning, as he supported his family. Defendant also




      5. The same judge presided over both cases.


                                         -9-
      failed to meet the third prong. He is not entitled to another
      evidentiary hearing.

In the North Miami case, the circuit court concluded that Hall did not create a new

right to bring a claim of intellectual disability. The court also held that Franqui’s

motion was time-barred. The court attached to its denial order the report of Dr.

Block-Garfield from the Hialeah case.

      These appeals follow.

                                     ANALYSIS

      “Because a postconviction court’s decision whether to grant an evidentiary

hearing on a rule 3.851 motion is ultimately based on written materials before the

court, its ruling is tantamount to a pure question of law, subject to de novo

review.” Marek v. State, 8 So. 3d 1123, 1127 (Fla. 2009). As a preliminary

matter, in Walls v. State, 41 Fla. L. Weekly S466 (Fla. Oct. 20, 2016), we held that

the Supreme Court’s decision in Hall is retroactive. Therefore, Hall is applicable

to Franqui. Accordingly, at issue in these cases is whether the circuit court should

have granted Franqui an evidentiary hearing on his intellectual disability claim

based upon the holding in Hall that where a defendant’s IQ score is 75 or below

after taking into account the SEM, he must be afforded the opportunity to present

evidence of intellectual disability, “including deficits in adaptive functioning over

his lifetime.” 134 S. Ct. at 2001. See also Oats v. State, 181 So. 3d 457, 467-68

(Fla. 2015) (noting that pursuant to Hall, “courts must consider all three prongs in


                                        - 10 -
determining an intellectual disability, as opposed to relying on just one factor as

dispositive . . . [B]ecause 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.”).

      In the Hialeah case, Franqui obtained a range of full-scale IQ scores from

qualifying tests. Those scores are: 75 on the WAIS-IV conducted by Dr. Suarez in

2009, 75 and 76 on the WAIS-III and the Stanford-Binet conducted by Dr. Block-

Garfield in 2003, and 83 on the WAIS-Revised conducted by Dr. Toomer in 1993.

It is not disputed that during his initial postconviction proceedings in the Hialeah

case, Franqui received an evidentiary hearing on his claim of intellectual disability,

but he asserts that an additional hearing is required so that the claim can be

reviewed within the parameters of Hall and in light of the fact that Cherry was

abrogated in that decision. We agree.

      The rationale for granting a second evidentiary hearing is articulated in

Walls:

      [I]t is clear that although Walls has had an earlier evidentiary hearing
      as to intellectual disability and was allowed to present evidence of all
      three prongs of the test, he did not receive the type of holistic review
      to which he is now entitled. Also, Walls’ prior hearing was conducted
      under standards he could not meet because he did not have an IQ
      score below 70—a fact which may have affected his presentation of
      evidence at the hearing. Because Walls’ prior evidentiary hearing was
      directed toward satisfying the former definition of intellectual
      disability and was reviewed by the circuit court with the former IQ


                                         - 11 -
       score cutoff rule in mind, we remand for the circuit court to conduct a
       new evidentiary hearing as to Walls’ claim of intellectual disability.

41 Fla. L. Weekly at S469 (emphasis added). In Franqui, 14 So. 3d at 239, we

specifically instructed the circuit court in the Hialeah case to hold an evidentiary

hearing pursuant to Cherry, which implemented a strict cutoff IQ score of 70 and

also held that if the first prong of intellectual disability was not satisfied, the

second and third prongs need not be addressed. See Cherry, 959 So. 2d at 713-14.

       It appears that during the evidentiary hearing, Franqui may have

significantly limited his presentation because he knew that he could not meet the

first prong of intellectual disability due to the fact that none of his scores on the

approved tests was 70 or below. Counsel for Franqui articulated the belief that

reaching the second and third prongs of intellectual disability would be futile

because of Cherry. As previously discussed, counsel stated that while experts

could testify with regard to the adaptive deficits prong, “if you don’t meet [the IQ]

prong, that’s the end of the story, that’s where we find ourselves now.” Thus, it

appears that Franqui did not offer as complete a presentation on the second and

third prongs of the intellectual disability determination as he might have under the

standard articulated in Hall.

       Further, the circuit court’s discussion of the adaptive deficits prong in its

denial order was very brief and relied on Dr. Block-Garfield’s discussion of

adaptive deficits, which was also very brief:


                                          - 12 -
      Dr. Block-Garfield’s report also states that while his functioning at the
      time of arrest was impaired, it was likely due to the Defendant’s
      immaturity and impulsive behavior. She further states that:
      “Certainly, he was in some fashion supporting a family which could
      not be accomplished by an individual who is mentally retarded.”

Because the circuit court was aware that pursuant to Cherry, Franqui’s intellectual

disability claim failed because none of his IQ scores on the WAIS and Stanford-

Binet tests was below 70, the circuit court may have determined that it was

unnecessary to consider or discuss the second and third prongs in detail. If this is

the case, then Franqui did not receive the “holistic” evaluation of his claim that he

is entitled to under Hall. Requiring the circuit court to hold a second evidentiary

hearing will afford Franqui a full opportunity to present evidence in support of his

intellectual disability claims.

                                  CONCLUSION

      Based upon the foregoing, we reverse the circuit court’s summary denials in

the Hialeah and North Miami cases and remand for the court to conduct a single

evidentiary hearing on Franqui’s claims of intellectual disability.6

      It is so ordered.

LABARGA, C.J., and PARIENTE, and QUINCE, JJ., and PERRY, Senior Justice,
concur.
LEWIS, CANADY, and POLSTON, JJ., dissent.



       6. Counsel for Franqui agree that only one evidentiary hearing is necessary
to resolve this claim in both cases.


                                        - 13 -
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Two Cases:

Appeals from the Circuit Court in and for Miami-Dade County,
     Stanford Blake, Judge - Case Nos. 131992CF006089B000XX &
     131992CF002141B000XX

Todd Gerald Scher of the Law Office of Todd G. Scher, P.L., Dania Beach,
Florida; and Martin J. McClain of McClain & McDermott, P.A., Wilton Manors,
Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Melissa Jean Roca,
Assistant Attorney General, Miami, Florida,

      for Appellee




                                     - 14 -
