          Supreme Court of Florida
                                   ____________

                                   No. SC19-203
                                   ____________

                             LEONARDO FRANQUI,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                    May 7, 2020

PER CURIAM.

      Leonardo Franqui appeals an order denying his claim of intellectual

disability, raised in successive motions for postconviction relief filed pursuant to

Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. We affirm the denial of postconviction relief.

                FACTS AND PROCEDURAL BACKGROUND

      Franqui was convicted of first-degree murder and sentenced to death in two

separate cases. He was convicted of the 1991 murder of Raul Lopez (the Hialeah

case), and the trial court sentenced him to death after the jury recommended death

by a vote of nine to three. See Franqui v. State, 699 So. 2d 1312, 1316 (Fla. 1997).
On direct appeal, this Court vacated Franqui’s convictions for attempted murder

but affirmed the remaining convictions and sentences. Id. at 1329. Franqui was

also convicted of the 1992 murder of law enforcement officer Steven Bauer (the

North Miami case). On direct appeal, this Court affirmed Franqui’s convictions

but reversed for a new penalty phase. See Franqui v. State, 699 So. 3d 1332 (Fla.

1997). On resentencing, the trial court sentenced Franqui to death after the jury

recommended death by a vote of ten to two. See Franqui v. State, 804 So. 2d

1185, 1190-91 (Fla. 2001). This Court affirmed Franqui’s death sentence on direct

appeal. Id. at 1199.

      Franqui’s initial motion for postconviction relief in the Hialeah case raised,

among other issues, a claim that he is intellectually disabled. This Court affirmed

the circuit court’s denial of postconviction relief. See Franqui v. State, 59 So. 3d

82 (Fla. 2011). Although Franqui’s initial postconviction appeal in the North

Miami case raised an ineffective assistance of counsel claim alleging mental

illness, Franqui did not argue that he is intellectually disabled. See Franqui v.

State, 965 So. 2d 22, 29-30 (Fla. 2007). This Court affirmed the circuit court’s

denial of relief, see id. at 26, 38, and Franqui later raised a claim of intellectual

disability in a successive motion for postconviction relief. The circuit court

summarily denied the claim, and this Court affirmed. See Franqui v. State, 118 So.

3d 807 (Fla. 2013) (unpublished opinion).


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      In the wake of the United States Supreme Court’s decision in Hall v.

Florida, 572 U.S. 701 (2014), Franqui filed successive motions for postconviction

relief in both of his capital cases. Relying on Hall, Franqui’s motions asserted that

the denials of his previous claims of intellectual disability were based on an

improper interpretation of Florida’s intellectual disability statute, and that as a

result, he was entitled to an additional evidentiary hearing. The circuit court

summarily denied both motions, and Franqui appealed to this Court.

      In 2017, in light of this Court’s decision in Walls v. State, 213 So. 3d 340

(Fla. 2016) (holding that Hall v. Florida is to be retroactively applied), this Court

reversed the circuit court’s summary denials of Franqui’s claims and remanded for

a single evidentiary hearing on the issue of intellectual disability. See Franqui v.

State, 211 So. 3d 1026, 1032 (Fla. 2017).

      Following an evidentiary hearing in 2017, the circuit court denied Franqui’s

intellectual disability claim. Franqui now appeals the circuit court’s order. He also

argues that his death sentences are invalid under Hurst v. Florida, 136 S. Ct. 616

(2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by State

v. Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020), clarified, 45 Fla. L. Weekly

S121 (Fla. Apr. 2, 2020). As we explain below, we affirm the denial of

postconviction relief on the issue of Franqui’s intellectual disability, and we deny

Franqui’s Hurst-related claims.


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                                    ANALYSIS

                              I. Intellectual Disability

      The determination of intellectual disability is subject to a three-prong test:

(1) significantly subaverage intellectual functioning; (2) concurrent deficits in

adaptive behavior; and (3) manifestation of the condition before age eighteen.

§ 921.137(1), Fla. Stat. (2017). Subaverage intellectual functioning is defined as

“performance that is two or more standard deviations from the mean score on a

standardized intelligence test.” Fla. R. Crim. P. 3.203(b).

      Pursuant to Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007), in

determining significantly subaverage intellectual functioning, this Court previously

applied a bright-line IQ score cutoff of 70, which is two standard deviations below

the mean IQ score of 100. Under the Cherry analysis, where a defendant could not

establish that he has an IQ of 70 or below, the circuit court need not reach the

remaining two prongs of the intellectual disability determination. Id. at 714.

      However, in Hall, the United States Supreme Court held that Florida’s strict

IQ test score cutoff of 70 “creates an unacceptable risk that persons with

intellectual disability will be executed, and thus is unconstitutional.” 572 U.S. at

704. The Court stated that when assessing the subaverage intellectual functioning

prong, courts must take into account the standard error of measurement (SEM) of

IQ tests. Id. at 722-23. Moreover, “when a defendant’s IQ test score falls within


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the test’s acknowledged and inherent margin of error, the defendant must be able

to present additional evidence of intellectual disability, including testimony

regarding adaptive deficits.” Id. at 723.

      Franqui argues that the circuit court erred in not conducting the holistic

analysis of intellectual disability set forth in Hall. We disagree. In reviewing the

circuit court’s determination that Franqui 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).

“If the defendant fails to prove any one of these components, the defendant will not

be found to be intellectually disabled.” Salazar v. State, 188 So. 3d 799, 812 (Fla.

2016) (citing Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009)). “This Court does not

reweigh the evidence or second-guess the circuit court’s findings as to the

credibility of witnesses.” Brown v. State, 959 So. 2d 146, 149 (Fla. 2007) (citing

Trotter v. State, 932 So. 2d 1045, 1050 (Fla. 2006)).

      First, we reject Franqui’s argument that this Court should recede from

Salazar, as well as his challenge to the clear and convincing burden of proof set

forth in section 921.137(4), Florida Statutes. In the proceedings below, Franqui

did not timely present his challenge to the statutory clear and convincing evidence

standard, so this issue was not preserved for review on appeal.




                                         -5-
      Second, we reject Franqui’s argument that the circuit court failed to conduct

a proper review of his intellectual disability claim. In its order denying

postconviction relief, the circuit court evaluated each of the three intellectual

disability prongs. Having reviewed the extensive evidence relating to Franqui’s

IQ, the court concluded that Franqui’s IQ scores, when taking the SEM into

account, did not demonstrate significantly subaverage intellectual functioning, and

did not meet the first prong, stating: “Mr. Franqui has not shown, by clear and

convincing evidence, that his intellectual functioning is two standard deviations

below the norm of 100.” In a footnote, the court indicated that it did not consider

Franqui’s score on the Revised Beta Test because of expert testimony conceding

that it was not a recommended IQ test. Competent substantial evidence supports

the court’s conclusion.

      The circuit court continued its analysis and considered the second prong,

whether Franqui exhibited concurrent deficits in adaptive behavior. The court

evaluated the conceptual, social, and practical domains of adaptive behavior, and it

concluded that Franqui failed to demonstrate adaptive deficits. Competent

substantial evidence supports the court’s conclusion.

      The circuit court then considered the third prong, manifestation of adaptive

deficits before age eighteen, and concluded: “The evidence presented is

overwhelming that, prior to his incarceration, the Defendant functioned normally


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in society and, while incarcerated the Defendant has shown no adaptive deficits.

Franqui has failed to prove, by clear and convincing evidence, any concurrent

deficits that would satisfy the third prong of the intellectual disability test.”

Competent substantial evidence supports the circuit court’s conclusions as to all

three prongs of the intellectual disability analysis.

      Third, we reject Franqui’s claim that he is entitled to relief under Moore v.

Texas, 137 S. Ct. 1039 (2017). In evaluating whether Franqui had significantly

subaverage intellectual functioning, the circuit court accounted for the SEM and

concluded that Franqui’s lowest IQ score was a 71. Despite finding that Franqui

did not fall “within the clinically established range for intellectual-functioning

deficits,” 137 S. Ct. at 1050, the trial court considered other evidence of

intellectual disability and evaluated the second and third prongs of the intellectual

disability analysis.

                       II. Hurst v. Florida and Hurst v. State

      Franqui also argues that he is entitled to relief pursuant to Hurst v. Florida,

136 S. Ct. 616 (2016), and Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from

in part by State v. Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020), clarified, 45

Fla. L. Weekly S121 (Fla. Apr. 2, 2020). However, neither case provides a basis

for relief because in each of Franqui’s cases, a jury unanimously found the

existence of an aggravating factor beyond a reasonable doubt. See Poole, 45 Fla.


                                          -7-
L. Weekly at S48 (“reced[ing] from Hurst v. State except to the extent it requires a

jury unanimously to find the existence of a statutory aggravating circumstance

beyond a reasonable doubt”); see also McKinney v. Arizona, 140 S. Ct. 702, 707

(2020) (stating that under Hurst v. Florida, “a jury must find the aggravating

circumstance that makes the defendant death eligible,” but a jury “is not

constitutionally required to weigh the aggravating and mitigating circumstances or

to make the ultimate sentencing decision within the relevant sentencing range”). In

the Hialeah case, Franqui was also convicted of attempted robbery, which was

found as an aggravating factor. In the North Miami case, Franqui was also

convicted of robbery, which was also found as an aggravating factor. These

findings satisfy the requirements of Hurst v. Florida and Hurst v. State.

       Moreover, Franqui’s argument that Hurst v. Florida compels a jury

determination of intellectual disability is without merit. Under Florida law, both

the statute and the rule governing intellectual disability in capital cases provide that

the determination shall be made by a judge, not a jury. See § 921.137, Fla. Stat.

(2017); Fla. R. Crim. P. 3.203(e). Further, intellectual disability is a categorical

bar to execution, and Hurst v. Florida does not address findings that render a

defendant ineligible to be executed.

       For the foregoing reasons, we affirm the denial of Franqui’s claim of

intellectual disability.


                                         -8-
      It is so ordered.

POLSTON, LAWSON, and MUÑIZ, JJ., concur.
CANADY, C.J., concurs in result with an opinion.
LABARGA, J., concurs in result with an opinion.

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

CANADY, C.J., concurring in result.

      I agree that the decision of the circuit court should be affirmed. But I would

reject the intellectual disability claim on the ground that Hall v. Florida, 572 U.S.

701 (2014), should not be given retroactive effect. See Walls v. State, 213 So. 3d

340, 350-52 (Fla. 2016) (Canady, J., dissenting).

LABARGA, J., concurring in result.

      I agree that the circuit court did not err in denying Franqui’s intellectual

disability claim. I also agree with the denial of Franqui’s Hurst-related claims

because this Court held that Hurst v. Florida 1 and Hurst v. State2 do not apply

retroactively to cases where the defendant’s death sentence was final when Ring v.

Arizona, 536 U.S. 584 (2002), was decided. See Hitchcock v. State, 226 So. 3d

216, 217 (Fla. 2017).




      1. Hurst v. Florida, 136 S. Ct. 616 (2016).

      2. Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v.
Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020).

                                         -9-
      However, rather than rely on Hitchcock, the majority relies on State v.

Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020), clarified, 45 Fla. L. Weekly

S121 (Fla. Apr. 2, 2020), a wrongfully decided opinion to which I strenuously

dissented. Because I conclude that the denial of Hurst relief in this case is

correctly based on Hitchcock and not Poole, I can only concur in the result.

An Appeal from the Circuit Court in and for Miami-Dade County,
     Ellen Sue Venzer, Judge - Case Nos. 131992CF002141B000XX and
     131992CF006089B000XX

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

      for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner,
Assistant Attorney General, West Palm Beach, Florida,

      for Appellee




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