          Supreme Court of Florida
                                    ____________

                                   No. SC17-2198
                                   ____________

                              JERMAINE FOSTER,
                                  Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                 December 28, 2018

PER CURIAM.

      This case is before the Court on appeal from an order denying a successive

motion to vacate two sentences of death under Florida Rule of Criminal Procedure

3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Foster contends

that the postconviction court erred in summarily denying the three claims raised in

his motion. The first claim is one of intellectual disability, raised pursuant to the

United States Supreme Court’s decision in Hall v. Florida, 572 U.S. 701 (2014),

and the second and third claims seek relief pursuant to Hurst v. Florida, 136 S. Ct.

616 (2016), and this Court’s decision on remand in Hurst v. State, 202 So. 3d 40

(Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017). For the reasons explained below,
we reverse the denial of the Hall claim and remand for an evidentiary hearing, but

we affirm the denial of Hurst relief.

                FACTS AND PROCEDURAL BACKGROUND

      Foster was convicted of the first-degree murders of Anthony Clifton and

Anthony Faiella and sentenced to death for each of the murders. Foster v. State,

679 So. 2d 747, 750-51 (Fla. 1996) (Foster I). 1 These convictions arose out of

events that occurred at the end of a crime spree in which Foster and three other

males (Gerard Booker, Leondra Henderson, and Alf Catholic) participated. Id.

We have described the facts of the crimes as follows:

      On the morning of November 28, 1993, Gerard Booker came to the
      trailer shared by [Jermaine] Foster and Leondra Henderson and stated
      he wanted to recoup his recent gambling losses by committing
      robberies. The trio proceeded to Auburndale to a place called “The
      Hill.” Armed with a .38 caliber handgun, a .9 millimeter handgun, and
      an Uzi-type automatic weapon, Foster and Booker, who were joined by
      Alf Catholic, approached three unknown men who were selling drugs
      from their truck. After forcing the victims to remove their clothing and
      lie on the ground, Foster, Catholic, and Booker stole the victims’ cash,
      jewelry, crack cocaine, and red Ford pickup truck. Henderson then
      joined the group, and they [left the scene to] conceal[] the stolen truck
      for future use.
              Foster and Catholic returned to The Hill and sold some of the
      stolen drugs; however, the proceeds of the robbery were not sufficient
      to cover Booker’s gambling losses. The group of Foster, Catholic,
      Booker, and Henderson agreed to find a local drug dealer and rob him.

       1. In the same case, Foster was convicted of and sentenced for the attempted
first-degree murder of Mike Rentas and four counts of kidnapping for kidnapping
the above-mentioned victims and their companion, Tammy George. Foster I, 679
So. 2d at 750-51. However, only the death sentences are at issue in this appeal.


                                        -2-
Then they retrieved the stolen red truck and loaded the guns [they had
used in] the earlier robbery into it. When the group was unable to
locate their intended victim, they drove to Osceola County to visit a
girlfriend of Catholic and to find other victims to rob.
        At the girlfriend’s house, the group decided to accompany the
girlfriend and some of her friends to the Palms Bar in St. Cloud.
Catholic and Foster rode in the car driven by Catholic’s girlfriend, and
Henderson and Booker followed in the stolen red truck. Both drivers
stopped their vehicles in route to the bar, and Catholic’s girlfriend
bought some liquor. Testimony revealed that Foster and Catholic drank
liquor and smoked marijuana during the trip. Then the two drivers
pulled over so the girlfriend could buy some gas. It was determined at
that time that there were problems with the truck’s fan belt, which had
caused the truck to overheat and smoke during the trip. Booker stated
that they would have to steal another car in which to return home that
night.
        Once at the Palms Bar, Foster and Catholic drank liquor, and
Foster played a video game and danced. After a while, the group went
outside, and Booker detailed a plan to rob the entire bar. Foster told
Booker the plan was “crazy” because it was unknown what “those boys
got in there.” As the group headed back into the bar, Henderson
noticed a black Nissan Pathfinder that was in the parking lot.
Henderson determined that Anthony Faiella and Mike Rentas had come
to the bar in that vehicle. . . . Faiella and Rentas came to the bar to meet
Anthony Clifton, who was with Tammy George. Henderson pointed
out Faiella, Rentas, and Clifton to Booker as possible victims to rob of
their money and their vehicle. The group decided upon a plan to follow
the potential victims when they left the bar in the Pathfinder. Foster
told Henderson, Booker, and Catholic that if the victims did not have
any money, he was going to kill them.
        At around 1:30 a.m., Faiella, Rentas, Clifton, and George left the
bar in the Pathfinder. The other group followed them in the red truck.
Catholic was driving the truck and rammed into the back of the
Pathfinder to get that vehicle to stop. When the victims stopped and
got out of the Pathfinder to inspect the damage, the group in the red
truck took out their weapons and demanded money from the occupants
of the Pathfinder. After the victims stated that they did not have any
money, the victims were forced to return to the Pathfinder. Booker
drove the Pathfinder, and Henderson held the victims at gunpoint from
the passenger seat. The others followed in the red truck.

                                   -3-
             On the outskirts of Kissimmee, the red truck again began
      experiencing mechanical problems. Catholic turned off the main
      highway and drove a short distance into a vacant field; Booker and the
      victims followed in the Pathfinder. All four of the victims were
      ordered out of the Pathfinder, and Tammy George was separated from
      the three male victims. The group again demanded money from the
      male victims. When these victims did not produce any, they were
      ordered to remove their clothes, and Foster had the men place their
      underwear and hands on their heads and lie face down on the ground.
             At this point, Foster, from a position beside and to the rear of
      Anthony Clifton, shot Clifton in the back of the head, killing him.
      Foster then approached Rentas and fired at his head. The bullet hit
      him in the hand, and Rentas pretended to be dead. Foster next walked
      to Faiella and shot him in the head, killing him. After this, Foster
      approached George as if to kill her, but Booker talked him out of it.

Id.

      After a penalty phase, Foster’s jury unanimously recommended that Foster

be sentenced to death for each of the two murders. Id. at 751. The trial court

followed this recommendation, finding four statutory aggravators 2 and one

statutory mitigator. 3 In conjunction with the statutory mitigator, the trial court

found that Foster is “mildly mentally retarded,” id. at 755, based on evidence that



        2. The trial court found the following aggravators: Foster was previously
convicted of another capital felony; the capital felony was committed while the
defendant was engaged in the commission of a kidnapping; the capital felony was
committed for pecuniary gain; and the capital felony was committed in a cold,
calculated, and premeditated manner without any pretense of moral or legal
justification. Foster I, 679 So. 2d at 751 n.2.

      3. As the statutory mitigator, the trial court found that Foster’s capacity to
appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired. Id. at 751 n.3.


                                         -4-
Foster had an IQ score of 75 and showed deficits in adaptive functioning.

However, at that time, “mental retardation,” which is now known as intellectual

disability, 4 was not a bar to execution. See Penry v. Lynaugh, 492 U.S. 302, 340

(1989). This Court affirmed Foster’s convictions and sentences on direct appeal.

Foster I, 679 So. 2d at 756.5

      Thereafter, Foster filed his initial motion for postconviction relief and was

permitted to amend and supplement it. Among the claims raised was ineffective

assistance of trial counsel for failure to present a voluntary intoxication defense

and, in support of that defense, to put on evidence of the enhanced effect




       4. The two terms are used interchangeably in this opinion to the extent of
leaving the quotations from the record and case law unaltered when the former
term is used.
        5. Foster raised the following issues on direct appeal: (1) the death penalty
is disproportionate; (2) the trial court improperly balanced the aggravators against
the mitigators; (3) the trial court erred in denying Foster’s motion for mistrial
based on the wrongful admission of hearsay evidence over objection; (4) the trial
court erred by allowing witnesses to testify about other crimes or bad acts; (5) the
trial court erred in excusing a juror for cause over defense objection; (6) the trial
court erred in instructing the jury that it could consider whether the murder was
heinous, atrocious, or cruel; (7) the trial court erred in refusing to strike jurors for
cause; (8) the trial court erred in finding that the murders were committed in a
cold, calculated, and premeditated manner; (9) the trial court erred in overruling
objections to the introduction of racial prejudice into the proceedings; (10) the trial
court erred in considering separately that the murder was for pecuniary gain and
that the murder occurred during the course of a kidnapping; (11) a new trial is
warranted because of prosecutorial misconduct; and (12) section 921.141, Florida
Statutes (1993), is unconstitutional. Foster I, 679 So. 2d at 751 n.4.


                                          -5-
intoxicating substances would have had on him due to his intellectual disability.

Foster v. State, 929 So. 2d 524, 527-28 (Fla. 2006) (Foster II).6 The

postconviction court held a hearing on the motion and denied it. Id.

      Between the evidentiary hearing and the date the postconviction court

denied Foster’s initial postconviction motion, the United States Supreme Court

issued Atkins v. Virginia, 536 U.S. 304 (2002), imposing a bar to the execution of

individuals with intellectual disability, and Ring v. Arizona, 536 U.S. 584 (2002),



       6. Foster raised the following claims in his amended motion for
postconviction relief: (1) Foster’s trial counsel was ineffective for failing to
adequately investigate and prepare for the case; (2) Foster’s trial counsel was
ineffective for not providing evidence relating to Foster’s mental health to the jury;
(3) Foster’s trial was compromised by procedural and substantive errors; (4)
Foster’s trial counsel was ineffective for failing to object to the trial court’s finding
that the murders were committed in a cold, calculated, and premeditated manner;
(5) the jury received inadequate guidance from the court regarding the aggravators
to be considered; (6) prejudicial pretrial publicity denied Foster’s right to an
impartial trial; (7) the penalty phase jury instructions unconstitutionally shifted the
burden to Foster; and (8) Foster’s counsel was ineffective because the court failed
to instruct the jury regarding the statutory mitigator regarding the crime being
committed while Foster was under extreme mental disturbance. Foster II, 929 So.
2d at 527. Foster later filed a supplemental motion alleging an additional claim,
that his trial counsel was ineffective for failing to investigate a voluntary
intoxication defense in conjunction with his intellectual disability. Id. at 528. In
addition to the supplemental motion, which was accepted by the postconviction
court, Foster moved for leave to amend his motion to include a claim regarding an
alleged racial slur by his counsel and a statement that mitigation was useless. Id.
The postconviction court denied the motion for leave to amend. Id. However,
during the appeal from the denial of Foster’s motion, this Court relinquished
jurisdiction for an evidentiary hearing on the claim concerning the alleged racial
slur, and the postconviction court ultimately denied the claim on the merits. Id.



                                          -6-
setting forth the requirement that all facts necessary to render a person eligible for

the death penalty be found by a jury. During the rehearing period for the denial of

Foster’s initial motion for postconviction relief, Foster raised claims under both of

these decisions. The postconviction court denied the claims on the merits. Foster

II, 929 So. 2d at 531-32. Foster then appealed from the denial of his motion for

postconviction relief, including the Atkins and Ring claims, and this Court affirmed

the denial of each claim. Id. at 531-33, 537.

      Foster later filed the successive postconviction motion at issue in this appeal,

raising three claims. As noted at the outset, the first claim is that Foster is

intellectually disabled and therefore ineligible for the death penalty under Hall v.

Florida, which invalidated this state’s prior position that a person who cannot

produce an IQ test score of 70 or below does not qualify as intellectually disabled,

134 S. Ct. at 1990, and case law applying that decision. The second and third

claims seek relief in light of Hurst v. Florida and Hurst v. State. The

postconviction court summarily denied each claim, and Foster now appeals those

rulings.

                         INTELLECTUAL DISABILITY

      A claim of intellectual disability as a bar to execution requires the defendant

to establish three prongs: “(1) significantly subaverage general intellectual

functioning, (2) concurrent deficits in adaptive behavior, and (3) manifestation of


                                          -7-
the condition before age eighteen.” Salazar v. State, 188 So. 3d 799, 811 (Fla.

2016). As noted above, this state formerly required proof of an IQ score of 70 or

below to establish the first prong, and failure to produce such evidence was fatal to

the entire claim. Hall, 134 S. Ct. at 1990; see, e.g., Cherry v. State, 959 So. 2d

702, 712-13 (Fla. 2007). In Hall, the United States Supreme Court determined that

this approach “creates an unacceptable risk that persons with intellectual disability

will be executed, and thus is unconstitutional.” 134 S. Ct. at 1990. We have

explained the crux of the Hall decision as follows:

      Prior to the decision in Hall, a Florida defendant with an IQ score
      above 70 could not be deemed intellectually disabled and, therefore,
      was barred from presenting evidence regarding the other two prongs
      of the test for intellectual disability: adaptive functioning deficits and
      manifestation before age 18. Id. at 1994. . . . The Supreme Court
      found that the mandatory IQ cutoff of 70 violated established medical
      practices in two ways: first, by taking “an IQ score as final and
      conclusive evidence of a defendant’s intellectual capacity, when
      experts in the field would consider other evidence,” and second, by
      relying on a “purportedly scientific measurement of the defendant’s
      abilities”—his IQ score—without recognizing that the measurement
      itself has an inherent margin of error, resulting in a ranged score
      rather than a single numerical value. Id. at 1995. The Court also held
      that the determination of intellectual disability is a “conjunctive and
      interrelated assessment” . . . . Id. at 2001.[7]

       7. Although this sentence in Walls ends with a suggestion that “no single
factor can be considered dispositive,” we have since clarified that, even after Hall,
a failure to prove any one prong of the intellectual disability test is a failure to
prove the claim. Quince v. State, 241 So. 3d 58, 62 (Fla. 2018); Williams v. State,
226 So. 3d 758, 773 (Fla. 2017) (citing Salazar, 188 So. 3d at 812). Thus, while
an assessment of intellectual disability involves “conjunctive and interrelated”
factors, Hall, 134 S. Ct. at 2001, if a defendant cannot produce an IQ score that
shows significantly subaverage intellectual functioning even when the standard

                                         -8-
Walls v. State, 213 So. 3d 345-46 (Fla. 2016).

      When the original postconviction court denied Foster’s Atkins claim, it

considered the evidence presented in Foster’s trial and in the evidentiary hearing

on the postconviction claim that Foster’s trial counsel was ineffective for failure to

present a voluntary intoxication defense and, in support of that defense, to put on

evidence of the enhanced effect intoxicating substances would have had on him

due to his intellectual disability. This was the hearing held prior to the Supreme

Court’s decision in Atkins, during which Foster introduced his IQ score of 75.

That record also included some evidence of adaptive deficits, but the trial court

found that the record as a whole did not demonstrate that Foster met any of the

intellectual disability prongs.

      After the United States Supreme Court issued Hall, Foster timely filed the

successive motion at issue in this appeal, renewing his intellectual disability claim

on the basis of Hall and this Court’s Hall-based decision in Walls v. State, 213 So.

3d at 346, which held that Hall is retroactive. Foster proffered evidence in support

of this claim, including affidavits of friends and family concerning adaptive

deficits, school records to show adaptive deficits and onset before the age of




error of measurement is taken into account, the claim will fail for lack of proof of
the first prong. Quince, 241 So. 3d at 62.


                                         -9-
eighteen, and the expert opinion of Dr. Jethro Toomer, based on these affidavits

and records and the earlier assessments, that a diagnosis of intellectual disability is

appropriate for Foster. The postconviction court denied Foster’s Hall claim

without an evidentiary hearing, concluding that the claim is procedurally barred

because all three prongs of the intellectual disability test have already been

considered for Foster. We disagree and hold that Foster is entitled to an

evidentiary hearing on his intellectual disability claim for the same reasons that we

granted evidentiary hearings in Walls and Franqui v. State, 211 So. 3d 1026 (Fla.

2017).

      Upon review of the record in Walls, we determined that, although Walls had

previously received consideration of his intellectual disability claim after an

evidentiary hearing, the proceedings in that case were not sufficient to show

compliance with the “holistic review” required by Hall due to the effect the IQ-

score cutoff likely had on those proceedings. Walls, 213 So. 3d at 346-47. We

made the following determinations in that case:

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




                                         - 10 -
Id at 347. We applied this reasoning in Franqui, noting that because Franqui

presented IQ scores over 70, “the circuit court may have determined that it was

unnecessary to consider or discuss the second and third prongs [of the intellectual

disability test] in detail.” 211 So. 3d at 1032. Similar reasoning applies to the

instant case.

      Before Hall, Foster’s IQ score of 75, the only score that has ever been

presented in court, disqualified him as a matter of law from being considered

intellectually disabled in Florida. Although the original postconviction court did

not cite this standard,8 its analysis began with skepticism that Foster could be

considered intellectually disabled given his achievement of a score of 75 on an IQ

test, and the court’s consideration of this issue was not aided by any explanation of

the standard error of measurement. Also, while the original postconviction court

based its decision on Foster’s failure to meet the other two prongs of the

intellectual disability test, which are not IQ-based, we cannot be sure that its

assessment of the evidence was not tainted by a failure to view his IQ score of 75




       8. That standard had not been announced by this Court at the time of the
original postconviction court’s decision, but the standard was driven by the
statutory definition of “mental retardation” that was already in effect at that time,
see § 921.137, Fla. Stat. (2001), and the standard had been announced by the time
this Court affirmed the original postconviction court’s ruling. See Zack v. State,
911 So. 2d 1190, 1201 (Fla. 2005).


                                        - 11 -
in a proper light. Indeed, it appears that the original postconviction court viewed

Foster’s IQ score of 75 as evidence undermining his claim.

      Likewise, Foster is in a position similar to Walls and Franqui with respect to

limitations on his presentation of evidence due to the absence of Hall’s guidance.

At the prior postconviction evidentiary hearing concerning intellectual disability,

Foster’s counsel was focused on proving that an involuntary intoxication defense

would have been enhanced with evidence of intellectual disability, not on proving

a claim of intellectual disability as a bar to execution under the governing case law,

which was issued after that hearing. He presented evidence of intellectual

disability only to show that his drug and alcohol use would have affected him more

severely than it would have affected another person with higher intellectual

functioning, and he came to the hearing with the background of having received a

finding from the trial court that he is mildly intellectually disabled (albeit not a

finding based on the Atkins prongs). The limitation on Foster’s evidentiary

presentation is illustrated by the fact that he did not offer any of his school records

into evidence, even though the record generated in connection with the motion

under review shows that Foster’s school records would have afforded favorable,

though not conclusive, evidence for Foster. Similarly, he did not include testimony

from friends and family who observed adaptive deficits in him as a child, even

though the current record includes affidavits showing that this testimony would


                                         - 12 -
have been available. In fact, it includes an attestation from a family member that

Foster was in special education, which was not indicated at the original

postconviction evidentiary hearing. In consideration of these points and in light of

Hall, Walls, and Franqui, we conclude that Foster must now be afforded an

opportunity to present evidence of intellectual disability in a proceeding fully

informed by Hall. See also Brumfield v. Cain, 135 S. Ct. 2269, 2281 (2015)

(noting that in Brumfield’s pre-Atkins trial, he “had little reason to investigate or

present evidence relating to intellectual disability” and, therefore, the Louisiana

court erred in denying him a hearing due to the failure of the record to raise a

sufficient doubt about his intellectual functioning).

      Although Foster alternatively seeks to forego an evidentiary hearing and

requests the imposition of a life sentence based on the trial court’s finding in his

sentencing order that he is “mildly mentally retarded” and the evidence in the

record, that remedy would not be appropriate. Just as Foster has not had a full

opportunity to present his evidence in accordance with the applicable legal

standards, the State has not had an opportunity to refute it. On the record before

us, the proper remedy is a Hall-compliant evidentiary hearing.

      Accordingly, we reverse the summary denial of this claim and remand for an

evidentiary hearing.




                                         - 13 -
                                  HURST CLAIMS

      In his two remaining claims, Foster seeks relief from his two sentences of

death pursuant to Hurst v. Florida and this Court’s decision on remand in Hurst v.

State. Foster is not entitled to relief on these claims. Foster was sentenced to

death for each murder following a jury’s unanimous recommendation for death.

Foster I, 679 So. 2d at 751. Foster’s sentences of death became final in 1997.

Foster v. Florida, 520 U.S. 1122 (1997). Thus, Hurst does not apply retroactively

to Foster’s sentences of death. See Hitchcock v. State, 226 So. 3d 216 (Fla.), cert.

denied, 138 S. Ct. 513 (2017). Accordingly, we affirm the denial of these claims.

                                   CONCLUSION

      For the reasons explained above, we reverse the summary denial of Foster’s

intellectual disability claim and remand for an evidentiary hearing on that claim

but affirm the denial of Hurst relief.

      It is so ordered.

LEWIS, QUINCE, LABARGA, and LAWSON, JJ., concur.
PARIENTE, J., concurs in result with an opinion.
CANADY, C.J., concurs in part and dissents in part with an opinion, in which
POLSTON, J., concurs.

NO MOTION FOR REHEARING WILL BE ALLOWED.




                                         - 14 -
PARIENTE, J., concurring in result.

      I concur with reversing the postconviction court’s denial of Foster’s Hall 9

claim and remanding for an evidentiary hearing on intellectual disability. I also

agree that Foster is not entitled to Hurst10 relief—not because his case was final

before Ring v. Arizona, 536 U.S. 584 (2002), 11 but because the jury unanimously

recommended sentences of death, no aggravating factors were stricken, and Foster

did not waive mitigation. See Davis v. State, 207 So. 3d 142, 175 (Fla. 2016).

CANADY, C.J., concurring in part and dissenting in part.

      I agree that Foster’s Hurst claim should be rejected. I adhere to the view

that Hurst should not be given retroactive effect on postconviction review. See

Mosley v. State, 209 So. 3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in

part and dissenting in part). And I adhere to the view that when—as here—a jury

verdict has established the existence of an aggravator, there is no violation of the

requirements of Hurst v. Florida, 136 S. Ct. 616 (2016). See Hurst v. State, 202

So. 3d 40, 77-82 (Fla. 2016) (Canady, J., dissenting), cert. denied, 137 S. Ct. 2161



      9. Hall v. Florida, 572 U.S. 701 (2014).

      10. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.
Ct. 2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).

       11. See per curiam op. at 14; see also Hitchcock v. State, 226 So. 3d 216,
222-23 (Fla.), cert. denied 138 S. Ct. 513 (2017) (Pariente, J., dissenting); Asay v.
State (Asay V), 210 So. 3d 1, 32-35 (Fla. 2016), cert. denied, 138 S. Ct. 41 (2017)
(Pariente, J., concurring in part and dissenting in part).

                                        - 15 -
(2017). So I concur in result regarding the majority’s affirmance of the denial of

Hurst relief.

      I dissent from the reversal of the denial of Foster’s intellectual disability

claim. On that issue, I would affirm the trial court. In my view, Hall should not be

given retroactive effect on postconviction review. See Walls v. State, 213 So. 3d

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

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Orange County,
     Frederick J. Lauten, Judge - Case No. 481993CF012001000AOX

Christopher J. Anderson of Law Office of Christopher J. Anderson, Neptune
Beach, Florida; and Billy H. Nolas, Chief, Capital Habeas Unit, Office of the
Federal Public Defender, Northern District of Florida, Tallahassee, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham,
Assistant Attorney General, Daytona Beach, Florida,

      for Appellee




                                        - 16 -
