          Supreme Court of Florida
                                   ____________

                                   No. SC15-1449
                                   ____________

                               FRANK A. WALLS,
                                  Appellant,

                                          vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                 [October 20, 2016]

PER CURIAM.

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

motion to vacate a sentence of death under Florida Rule of Criminal Procedure

3.851. Because the order concerns postconviction relief from a sentence of death,

this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida

Constitution. For the reasons that follow, we reverse the summary denial of Walls’

intellectual disability claim and remand for the circuit court to conduct an

evidentiary hearing under the appropriate standards.

                    FACTS AND PROCEDURAL HISTORY

      We have described the facts of this case as follows:
             Frank A. Walls was convicted of felony murder in the death of
      Edward Alger and premeditated and felony murder in the death of
      Ann Peterson in Okaloosa County in July 1987. Alger’s and
      Peterson’s bodies were discovered in Alger’s home when he failed to
      report for duty at Eglin Air Force Base. Peterson was shot twice in
      the head; Alger was shot three times and his throat had been cut.
      Alger’s feet and left wrist were also tied with a curtain cord.
             Based on information given to investigators by Walls’ former
      roommate, who lived adjacent to the victims, a warrant was obtained
      to search the mobile home where Walls lived with a roommate.
      During the search, several items were seized that were linked to the
      crime scene.
             After his arrest, Walls gave a statement detailing his
      involvement in the murders. In his confession, Walls stated that he
      entered the house to commit a burglary and that he deliberately woke
      up the two victims by knocking over a fan. Walls made Peterson tie
      up Alger and then Walls tied up Peterson. At some point, Alger got
      loose from the bindings and attacked Walls. Walls tackled Alger and
      cut him across the throat with a knife. However, Alger continued to
      struggle, knocked the knife from Walls’ hand, and bit Walls on the
      leg. Walls then pulled out a gun and shot Alger in the head several
      times. Walls untied Peterson and informed her that he did not
      originally intend to harm them, but Alger’s attack had changed
      everything. During a struggle, Walls ripped off Peterson’s clothes and
      shot her in the head. When Peterson continued to scream, Walls
      pushed her face into a pillow and shot her in the head a second time.

Walls v. State (Walls III), 926 So. 2d 1156, 1161 (Fla. 2006). Walls was charged

with ten offenses, some of which were subsequently dismissed or reduced at trial.

Walls v. State (Walls II), 641 So. 2d 381, 384 (Fla. 1994).

            Walls pled not guilty and filed several pretrial motions,
      including a motion to determine his competency to stand trial. Five
      experts testified, three stating Walls was incompetent and two finding
      he was competent. The trial judge agreed with the latter two experts
      and held that Walls was competent to stand trial. The jury found
      Walls guilty of all charges submitted and later recommended life
      imprisonment for the murder of Alger and death for the murder of

                                        -2-
      Peterson. The trial judge concurred. The conviction later was
      reversed and a new trial ordered.

Id. at 385 (citing Walls v. State (Walls I), 580 So. 2d 131 (Fla. 1991)).

             At Walls’ retrial, venue was moved to Jackson County because
      of pretrial publicity. The State’s guilt phase evidence consisted of
      physical evidence, testimony by the investigating officers, testimony
      by a pathologist, and Walls’ taped confession, which was played for
      the jury. Walls presented no guilt phase case. The jury found Walls
      guilty on all charges—two counts of first-degree murder, burglary of a
      structure, armed burglary of a dwelling, and two counts of kidnapping
      and petit theft.
             During the penalty phase, Walls presented evidence of his long
      history of violent and threatening behavior, his various emotional
      problems, and his extensive treatment for emotional problems,
      including placement in a class for emotionally handicapped students
      in elementary school and a stay in a residential youth camp for
      children with emotional and behavioral problems at age fifteen. A
      psychiatrist who had treated Walls when he was sixteen years old
      stated that he had placed Walls on lithium in order to control his
      bipolar mood disorder. However, the psychiatrist also testified that at
      some point Walls ceased taking the drug. A psychologist testified that
      Walls’ IQ had declined substantially in the years prior to trial and that
      Walls was impaired during the time the murder was committed.
             The jury recommended the death penalty for Peterson’s murder
      by a unanimous vote. Because of the prior jury’s recommendation of
      life, double jeopardy precluded the possibility of a death penalty for
      Alger’s murder on retrial. See [Walls II, 641 So. 2d at 386 n.1]; see
      also art. I, § 9, Fla. Const. The judge sentenced Walls to death for
      Peterson’s murder, to a life sentence for Alger’s murder, to five years
      in prison for the burglary of a structure, to twenty years for the armed
      burglary of a dwelling, to twenty years for each of the kidnapping
      counts, and to two months for petit theft.

Walls III, 926 So. 2d at 1162.

      As to Walls’ death sentence, the judge found six aggravators: prior violent

felony for the contemporaneous murder of Alger; committed during a burglary or

                                         -3-
kidnapping; committed to avoid lawful arrest; committed for pecuniary gain; the

murder was especially heinous, atrocious, or cruel (HAC); and the murder was

cold, calculated, and premeditated (CCP). Walls II, 641 So. 2d at 386. The judge

specifically rejected the existence of the statutory mental health mitigators, but

found nine mitigating factors: Walls had no significant criminal history, was

nineteen years old at the time of the crime, had been classified as emotionally

handicapped, suffers from brain dysfunction and brain damage, functions

intellectually at the level of a twelve year old because of his low IQ, confessed to

the crimes and cooperated with the police, has a loving relationship with his

parents and disabled sibling, is a good worker when employed, and has shown

kindness to helpless people and animals. Walls III, 926 So. 2d at 1162.

      On direct appeal after the retrial, Walls raised nine issues:

      (1) the trial court should have excused a potential juror for cause or
      granted the defense an additional peremptory challenge to excuse the
      juror; (2) the State improperly exercised peremptory challenges to
      dismiss two black jurors based on their race; (3) the jurors were kept
      in session for overtaxing hours during trial; (4) the trial court gave the
      jury erroneous penalty phase instructions on the mitigating factors of
      mental disturbance, impairment, or duress and on the aggravating
      factors of HAC and CCP; (5) the trial court refused to provide the jury
      with a detailed interpretation of emotional disturbance as a mitigating
      factor; (6) the trial court made errors in its findings on the aggravating
      factors because HAC and CCP were not proven beyond a reasonable
      doubt, the evidence did not support the conclusion that the murder
      occurred during a kidnapping, the commission during a burglary
      aggravating factor impermissibly doubled the pecuniary gain factor,
      and the avoid arrest aggravator was improper; (7) the trial court
      required Walls to prove the mitigating factors by a preponderance of

                                         -4-
      the evidence; (8) the trial court improperly rejected expert testimony
      that Walls was suffering from extreme emotional disturbance and
      substantial impairment; and (9) the death sentence was not
      proportionate in his case. This Court found no error and affirmed the
      judgment and sentences. The United States Supreme Court
      subsequently denied Walls’ petition for certiorari. See Walls v.
      Florida, 513 U.S. 1130 (1995).

Id. at 1162-63 (citation omitted).

      Walls filed his initial postconviction motion in 1997, amending it later that

year and again in 2001. Id. at 1163. The second amended motion raised nine

claims:

      (1) [Walls] was denied a fair guilt phase proceeding due to ineffective
      assistance of counsel, prosecutorial misconduct, and trial court error;
      (2) counsel conceded guilt and eligibility for the death penalty without
      Walls’ consent; (3) he was denied a fair penalty phase proceeding due
      to ineffective assistance of counsel, prosecutorial misconduct, and
      trial court error; (4) counsel failed to obtain an adequate mental health
      evaluation in violation of Ake v. Oklahoma, 470 U.S. 68 (1985); (5)
      his death sentence is unconstitutional because he is mentally retarded;
      (6) the trial court did not independently weigh the aggravating and
      mitigating circumstances; (7) the trial court considered inadmissible
      victim impact evidence; (8) the jury was improperly instructed on the
      aggravating factors; and (9) the cumulative effect of these procedural
      and substantive errors deprived him of a fair trial.

Id. at 1163 n.1.1 The circuit court held an evidentiary hearing on some of Walls’

claims, but eventually denied relief on all of them. Id. at 1163-64.




       1. The term “intellectual disability” will now be used in place of “mental
retardation.” See Fla. R. Crim. P. 3.203.


                                        -5-
      Walls appealed the denial to this Court raising two claims encompassing

several subclaims: the circuit court erred in (1) denying Walls’ ineffective

assistance of counsel claims for counsel’s “failure to exclude and object to the

admission of evidence of a possible sexual battery, failure to object to a lack of

remorse argument by the prosecutor during closing argument, concession of guilt

to the facts of felony murder and to the aggravating factor of commission during a

burglary, and failure to object to a number of other prosecutorial comments and

arguments”; and (2) denying Walls an evidentiary hearing on his other five

ineffective assistance of counsel claims2 and his claim that his death sentence is

improper because he is intellectually disabled. Id. at 1164-65, 1169-70. This

Court affirmed the denial of relief as to all but Walls’ intellectual disability claim.

This Court found no error in denying a hearing on that claim because this Court

adopted Florida Rule of Criminal Procedure 3.2033 subsequent to the circuit



       2. These claims were that counsel failed to present: (1) expert testimony on
the effects of Ritalin, (2) a pharmacologist’s testimony about the effects of Walls’
drug and alcohol use, (3) an adequate mental health evaluation including a PET
scan to show brain damage, and (4) lay testimony on mitigation. Claim (5) was that
counsel should have filed a motion asserting that the death penalty was barred by
double jeopardy because retrial was caused by the prosecutor’s misconduct. Walls
III, 926 So. 2d at 1169-70.
       3. This rule allows death-sentenced prisoners to file motions for
determination of intellectual disability even in cases where their direct appeal
proceedings are final. Id. at 1174. The rule defines “intellectual disability” as
having three elements: (1) significantly subaverage intellectual general functioning
that (2) exists concurrently with deficits in adaptive behavior and which has (3)

                                          -6-
court’s ruling. Id. at 1174. Thus, this Court stated, “Walls may still file a rule

3.203 motion for a determination of [intellectual disability] as a bar to execution in

the trial court and is entitled to an evidentiary hearing on that motion.” Id.

      On June 23, 2006, Walls filed his first successive postconviction motion

pursuant to rules 3.203 and 3.851, raising only the intellectual disability claim. On

July 10, 2007, the circuit court held an evidentiary hearing at which defense expert

Dr. Jethro Toomer and State expert Dr. Harry McClaren testified regarding Walls’

mental condition. The court denied relief on July 16, 2007, finding no intellectual

disability because Walls’ lowest IQ score of 72 did not meet the definition of

subaverage intellectual functioning then in place, which required an IQ of 70 or

below.4 This Court affirmed, finding “no evidence that Walls has ever had an IQ

of 70 or below.” Walls v. State (Walls IV), 3 So. 3d 1248 (Fla. 2008) (table).

      On May 26, 2015, Walls filed his second successive postconviction motion,

under rules 3.851 and 3.852. The next day, he filed another motion with the same

title as the first and an amended version—both of which do not differ in substance

from the one filed on May 26. In these motions, Walls argued that his death




manifested itself prior to age 18. Fla. R. Crim. P. 3.203; see also § 921.137, Fla.
Stat. (2006).

      4. Walls’ IQ scores are as follows: 102 at age 12, 101 at age 14, 72 at about
age 23, and 74 at approximately age 40.


                                         -7-
sentence was unconstitutional under Atkins v. Virginia, 536 U.S. 304 (2002),

because the United States Supreme Court’s decision in Hall v. Florida, 134 S. Ct.

1986 (2014), changed the definition of subaverage intellectual functioning to now

include IQ scores that are 75 or below. Because Walls’ intellectual disability

hearing was directed at satisfying the unconstitutional definition of an IQ that is 70

or below, Walls requested a new hearing.

      The circuit court held a hearing on July 6, 2015, intending to conduct a case

management conference, under Huff v. State, 622 So. 2d 982 (Fla. 1993), to decide

whether an evidentiary hearing was necessary on Walls’ motion. However, Walls’

counsel, Harry Brody, informed the court that he was not prepared to argue the

motion and was intending to withdraw from Walls’ case due to his current retired

status among other issues. The State argued that because the circuit court was

required to conduct the Huff hearing within ninety days of when the State filed its

answer to the 3.851 motion—which was filed on June 12, 2015—the court should

hear argument as to that issue only and require Brody to file a separate motion to

withdraw.

      As to the Huff issue, the State then asserted that the court could summarily

deny Walls’ motion as a matter of law because even with the new cut-off of 75,

Walls was required to demonstrate onset before age 18 and none of his IQ scores

from before he turned 18 were below 75. In response, Brody presented limited


                                         -8-
argument explaining that in his opinion, Hall expressly rejected such a rigid

approach and instead required courts to look at other aspects of a defendant’s

background, rather than just an IQ score. The court then ended the hearing, stating

it would issue its ruling in writing, and requested that Brody move forward with

filing his motion to withdraw.

      On July 10, 2015, the circuit court issued its order summarily denying

Walls’ second successive 3.851 motion without granting a hearing. The court did

not expressly rule on whether Hall applied retroactively to Walls’ case, stating that

although the Eleventh Circuit Court of Appeals had opined that Hall does not have

retroactive application,5 the procedural history of Haliburton v. State, 163 So. 3d

509 (Fla. 2015) (table), at least implicitly gives retroactive application to Hall.6

However, the circuit court found that even if Hall were to apply, Walls would not

be entitled to relief because his only IQ scores below 75 were received after he had

turned 18: his scores were 102 at age 12, 101 at age 14, 72 at about age 23, and 74

at about age 40. Accordingly, the court found that Walls could not demonstrate




      5. See In re Hill, 777 F.3d 1214, 1223 (11th Cir. 2015); In re Henry, 757
F.3d 1151, 1159 (11th Cir. 2014).

       6. In Haliburton v. Florida, 135 S. Ct. 178 (2014), the United States
Supreme Court remanded the defendant’s intellectual disability claim to this Court
for reconsideration in light of Hall. On remand, this Court remanded to the trial
court for an evidentiary hearing under rule 3.203. Haliburton, 163 So. 3d at 509.


                                          -9-
subaverage intellectual functioning that manifested prior to age 18. In addition, the

circuit court found that Walls had already received the relief Hall allows because

Walls had had the benefit of an earlier hearing at which he presented evidence

regarding all three prongs of the test for intellectual disability. Thus, the court

found he was not entitled to another evidentiary hearing, despite the new

interpretation from Hall. Walls now appeals from the circuit court’s denial of

relief, arguing that the circuit court erred in (1) summarily denying the claim and

(2) ruling that Walls’ intellectual disability did not manifest before age 18. Due to

our ruling on the first of these two issues, we find it unnecessary to address the

second issue.

                                     ANALYSIS

       Walls’ postconviction motion is based on his prior evidentiary hearing

having been decided under a rule of law that has now been found unconstitutional

under the Supreme Court’s decision in Hall. If Hall does not apply retroactively,

Walls has no basis on which to claim relief. Therefore, we address the

retroactivity of Hall first.

                          I. Retroactive Application of Hall

       In Hall, the United States Supreme Court declared Florida’s definition of

intellectual disability unconstitutional because it required an IQ score of 70 or

below to demonstrate subaverage intellectual functioning. See 134 S. Ct. at 1990.


                                         - 10 -
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. This

was true despite the medical community considering evidence of these other two

prongs to be probative of intellectual disability even for individuals whose IQ

scores were above 70. Id. 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” such that no single factor can be considered

dispositive. Id. at 2001. Accordingly, the Court held that Florida’s strict cutoff

“creates an unacceptable risk that persons with intellectual disability will be

executed” in violation of Atkins and is, therefore, unconstitutional. Id. at 1990.

      We must first determine whether Hall warrants retroactive application under

Witt v. State, 387 So. 2d 922 (Fla. 1980), before deciding whether Hall applies to


                                        - 11 -
Walls’ case. A change in the law will only apply retroactively if the change “(a)

emanates from this Court or the United States Supreme Court, (b) is constitutional

in nature, and (c) constitutes a development of fundamental significance.” Id. at

931. Developments of fundamental significance are likely to fall within one of two

categories: changes of law that either “place beyond the authority of the state the

power to regulate certain conduct or impose certain penalties” or are “of sufficient

magnitude to necessitate retroactive application” under the retroactivity test of

Stovall v. Denno, 388 U.S. 293, 297 (1967), and Linkletter v. Walker, 381 U.S.

618, 636 (1965). Id. at 929. It is without question that the Hall decision emanates

from the United States Supreme Court and is constitutional in nature. Thus, we

must determine whether Hall constitutes a development of fundamental

significance. To do so, we first consider whether it is a change of law that

“place[s] beyond the authority of the state the power to regulate certain conduct or

impose certain penalties.” Id.

      The Supreme Court’s rejection of Florida’s mandatory IQ score cutoff

means defendants with IQ scores that are higher than 70 must still be permitted to

present evidence of all three prongs of the test for intellectual disability. The Hall

decision requires courts to consider all prongs of the test in tandem. As we have

recognized, this means that “if one of the prongs is relatively less strong, a finding

of intellectual disability may still be warranted based on the strength of the other


                                        - 12 -
prongs.” Oats v. State, 181 So. 3d 457, 467-68 (Fla. 2015). The rejection of the

strict IQ score cutoff increases the number of potential cases in which the State

cannot impose the death penalty, while requiring a more holistic review means

more defendants may be eligible for relief. Accordingly, the Hall decision

removes from the state’s authority to impose death sentences more than just those

cases in which the defendant has an IQ score of 70 or below. We find that Hall

warrants retroactive application as a development of fundamental significance that

places beyond the State of Florida the power to impose a certain sentence—the

sentence of death for individuals within a broader range of IQ scores than before.

Cf. Falcon v. State, 162 So. 3d 954, 961-62 (Fla. 2015) (rejecting State’s argument

that because a Supreme Court decision only invalidated a statute as applied to a

specific subgroup of people, the decision was only a procedural refinement such

that retroactive application was unnecessary). Finding that Hall does apply

retroactively, we next address the merits of Walls’ appeal.

                          II. Applying Hall to This Case

      In applying Hall to Florida, we have recognized the Supreme Court’s

mandate that all three prongs of the intellectual disability test be considered in

tandem and that the conjunctive and interrelated nature of the test requires no

single factor to be considered dispositive. Oats, 181 So. 3d at 459, 467 (citing

Hall, 134 S. Ct. at 2001; Brumfield v. Cain, 135 S. Ct. 2269, 2278-82 (2015)).


                                         - 13 -
Reviewing this case, it 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

score cutoff rule in mind, we remand for the circuit court to conduct a new

evidentiary hearing as to Walls’ claim of intellectual disability.

      It is so ordered.

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

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

PARIENTE, J., concurring.

      I fully concur in the majority opinion that Walls is entitled to a new

evidentiary hearing pursuant to Hall v. Florida, 134 S. Ct. 1986, 1990 (2014). I

write separately to express my belief that to fail to give Walls the benefit of Hall,

which disapproved of Cherry v. State, 959 So. 2d 702 (Fla. 2007), would result in a


                                        - 14 -
manifest injustice, which is an exception to the law of the case doctrine. In State v.

Owen, this Court held that it has the power to reconsider and correct erroneous

rulings in exceptional circumstances, where reliance on the previous decision

would result in manifest injustice, notwithstanding that such rulings have become

the law of the case. 696 So. 2d 715, 720 (Fla. 1997). The Owen Court also held

that an intervening decision by a higher court is one of the exceptional situations

that this Court will consider when entertaining a request to modify the law of the

case. Id.

      Contrary to the dissent’s suggestions, this Court appropriately holds that

Hall should be given retroactive effect. See Canady, J., dissenting op. at 22. The

decision is not a mere evolutionary refinement in the law. Hall specifically held

that Florida’s method for determining those who are ineligible for execution

violates the Eighth Amendment:

             The Florida statute, as interpreted by its courts, misuses IQ
      score on its own terms; and this, in turn, bars consideration of
      evidence that must be considered in determining whether a defendant
      in a capital case has an intellectual disability. Florida’s rule is invalid
      under the Constitution’s Cruel and Unusual Punishment Clause.

Hall, 134 S. Ct. at 2001.

      Moreover, as this Court explained in Oats v. State, Hall changed the manner

in which evidence of intellectual disability must be considered, stating: “[C]ourts

must consider all three prongs in determining an intellectual disability, as opposed


                                         - 15 -
to relying on just one factor as dispositive . . . because these factors are

interdependent, if one of the prongs is relatively less strong, a finding of

intellectual disability may still be warranted based on the strength of the other

prongs.” Oats, 181 So. 3d 457, 467-68 (Fla. 2015).

      Militating against the “ongoing threat of major disruption to the application

of the death penalty resulting from giving retroactive effect to Hall,” not all capital

defendants will be entitled to relief under Hall. See Canady, J., dissenting op. at 7.

As this Court determined in an unpublished Order in the case of Rodriguez v.

State, those defendants who did not timely raise a claim under Atkins v. Virginia,

536 U.S. 304 (2002), and pursuant to Florida Rule of Criminal Procedure 3.203,

should not be entitled to relief under Hall. Rodriguez, No. SC15-1278 (Fla. Aug.

9, 2016). In that order, we stated:

      Rodriguez, who had never before raised an intellectual disability
      claim, asserted that there was “good cause” pursuant to Rule 3.203(f)
      for his failure to assert a previous claim of intellectual disability and
      only after the United States Supreme Court decided Hall v. Florida,
      134 S. Ct. 1986 (2014), did he have the basis for asserting an
      intellectual disability claim. The trial court rejected the motion as
      time barred, concluding there was no reason that Rodriguez could not
      have previously raised a claim of intellectual disability based on
      Atkins v. Virginia, 536 U.S. 304 (2002). The trial court further
      concluded that Rodriguez could not have relied on Cherry v. State,
      959 So. 2d 702 (Fla. 2007), which established the bright-line cut-off
      of 70 for IQ scores disapproved of in Hall, because he never raised an
      intellectual disability claim after Atkins as required by Rule 3.203.
             We have considered the issues raised, and affirm the trial
      court’s denial of Rodriguez’s motion as time-barred for the reasons
      stated by the trial court.

                                         - 16 -
Id.

      Turning to this case, the trial court relied, in part, on this Court’s decision in

Cherry in denying Walls relief. The bright-line cut-off of 70 for IQ scores

announced in Cherry and relied on by the trial court in Walls’ case has been

explicitly rejected by the United States Supreme Court’s decision in Hall. Hall,

134 S. Ct. at 2000. Specifically, the trial court in this case denied Walls relief on

his intellectual disability claim because Walls’ lowest IQ score of 72 did not meet

the definition of subaverage intellectual functioning, as interpreted by Cherry. See

majority op. at 7. This Court affirmed the trial court’s decision, finding “no

evidence that Walls has ever had an IQ of 70 or below.” Walls v. State (Walls IV),

3 So. 3d 1248 (Fla. 2008).

      Because Walls’ eligibility or ineligibility for execution must be determined

in accordance with the correct United States Supreme Court jurisprudence, this

case is a prime example of creating a manifest injustice if we did not apply Hall to

Walls. Walls has yet to have “a fair opportunity to show that the Constitution

prohibits [his] execution.” Hall, 134 S. Ct. at 2001. “Uniquely, capital punishment

. . . connotes special concern for individual fairness because of the possible

imposition of a penalty as unredeeming as death.” Witt v. State, 387 So. 2d 922,

326 (Fla. 1980).




                                         - 17 -
      More than fundamental fairness and a clear manifest injustice, the risk of

executing a person who is not constitutionally able to be executed, trumps any

other considerations that this Court looks to when determining if a subsequent

decision of the United States Supreme Court should be applied. At stake in this

case is a principle that could not be better expressed than in the words of Justice

Kennedy writing for the majority in Hall:

             The death penalty is the gravest sentence our society may
      impose. Persons facing that most severe sanction must have a fair
      opportunity to show that the Constitution prohibits their execution.
      Florida’s law contravenes our Nation’s commitment to dignity and its
      duty to teach human decency as the mark of a civilized world. The
      States are laboratories for experimentation, but those experiments may
      not deny the basic dignity the Constitution protects.
134 S. Ct. at 2001. For all these reasons, I concur with the majority opinion that

Walls is entitled to a new evidentiary hearing pursuant to the United States

Supreme Court’s decision in Hall.

CANADY, J., dissenting.

      The trial court’s order denying Walls’ claim should be affirmed. In

reversing the trial court’s order, the majority makes three fundamental errors.

First, the majority ignores a deficiency in Walls’ case—his failure to show juvenile

onset—that bars him from success on his claim of intellectual disability. Second,

the decision here goes on needlessly to consider Hall v. Florida, 134 S. Ct. 1986




                                        - 18 -
(2014), and in the process misconstrues the holding in Hall. Third, the Court

erroneously concludes that Hall should be given retroactive application.

                                         I.

      This case is easily resolvable without any discussion of the scope of Hall’s

holding regarding IQ scores or consideration of whether Hall should be applied

retroactively. The trial court correctly denied Walls’ intellectual disability claim

because the evidence showed without dispute that as a juvenile Walls had IQ

scores of 102 (at age 12) and 101 (at age 14). Based on these IQ scores, Walls

could not establish that he met the third prong of the test for intellectual disability,

which requires that the condition be “manifested during the period from conception

to age 18.” § 921.137(1), Fla. Stat. (2006). This requirement of juvenile onset was

not at issue and played no part in the Court’s analysis in Hall. So nothing in Hall

supports the conclusion that the third prong does not remain a valid requirement of

law. The third prong therefore defeats Walls’ claim. And the trial court’s rejection

of the claim on that basis should be affirmed.

                                         II.

      The majority states that Hall requires that “defendants with IQ scores that

are higher than 70 must still be permitted to present evidence of all three prongs of

the test for intellectual disability.” Majority op. at 12. According to the majority,

Hall requires that “no single factor . . . be considered dispositive” but that every


                                         - 19 -
intellectual disability claim must instead be given “holistic review.” Majority op.

at 11, 13, 14. Thus, by the reasoning of the majority, an individual with an IQ of

80, 100, 125, or 150 would nonetheless—as part of the “holistic review” process—

be entitled to present evidence of adaptive deficits to establish intellectual

disability. But this is not consistent with what the Supreme Court actually decided

in Hall.

      Hall declared unconstitutional Florida’s “rigid rule” “defin[ing] intellectual

disability to require an IQ test score of 70 or less”—a rule that failed to take into

account the 5-point standard error of measurement (SEM) for IQ tests. Hall, 134

S. Ct. at 1990. The Court was crystal clear concerning the question at issue: “That

strict IQ score cutoff of 70 is the issue in this case.” Id. at 1994. In line with that

statement of the issue, the Court noted that “Petitioner does not question the rule in

States which use a bright-line cutoff at 75 or greater.” Id. at 1996. Therefore,

contrary to the majority’s mandate of “holistic review,” nothing in Hall calls into

question the statutory provision that intellectual disability can be established only

if a person suffers from “significantly subaverage general intellectual functioning,”

which “means performance that is two or more standard deviations from the mean

score on a standardized intelligence test.” § 921.137(1). That threshold,

independent requirement should not be cast aside in the name of “holistic review.”

Contrary to the majority’s reasoning, Hall recognizes that the existence of an IQ


                                         - 20 -
score evidencing significantly subaverage general intellectual functioning is a

threshold requirement for determining whether an individual is intellectually

disabled: “For professionals to diagnose—and for the law then to determine—

whether an intellectual disability exists once the SEM applies and the individual’s

IQ score is 75 or below the inquiry would consider factors indicating whether the

person had deficits in adaptive functioning.” Hall, 134 S. Ct. at 1996 (emphasis

added).

      The holding of Hall is that the SEM must be taken into account in

determining whether an individual is intellectually disabled. Throughout its

opinion, the Court in Hall focuses on Florida’s failure to consider the SEM. And

the Court repeatedly identifies that failure as the basis for its decision. The Court

observed that “[t]he clinical definitions of intellectual disability, which take into

account that IQ scores represent a range, not a fixed number, were a fundamental

premise of Atkins[ v. Virginia, 536 U.S. 304 (2002),]” and that “those clinical

definitions have long included the SEM.” Id. at 1999. The Court went on to state

that “[b]y failing to take into account the SEM and setting a strict cutoff at 70,

Florida ‘goes against the unanimous professional consensus.’ APA Brief 15.” Id.

at 2000. In line with that consensus, the Court announced its “independent

assessment that an individual with an IQ test score ‘between 70 and 75 or lower,’

Atkins, supra, at 309, n.5, 122 S. Ct. 2242, may show intellectual disability by


                                         - 21 -
presenting additional evidence regarding difficulties in adaptive functioning.” Id.

Thus, the Court “agree[d] with the medical experts that when a defendant’s IQ test

score falls within 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 2001. The Court

reiterated: “By failing to take into account the standard error of measurement,

Florida’s law not only contradicts the test’s own design but also bars an essential

part of a sentencing court’s inquiry into adaptive functioning.” Id. So when an

individual’s IQ score is determined to be greater than 75—and the SEM thus has

been taken into account—the holding of Hall has no bearing on the case.

                                        III.

      I reject the majority’s conclusion that Hall should be given retroactive

application under Witt v. State, 387 So. 2d 922 (Fla. 1980), “as a development of

fundamental significance that places beyond the State of Florida the power to

impose a certain sentence.” Majority op. at 13. Contrary to the majority’s

reasoning, Hall places no categorical limitation on the authority of the state to

impose a sentence of death. Hall requires that the SEM of IQ tests be considered,

but it does not preclude death sentences for individuals whose scores fall within the

SEM. Although Hall’s IQ score fell within the SEM, the Court recognized that his

score was not sufficient to establish that he was intellectually disabled: “Freddie


                                        - 22 -
Lee Hall may or may not be intellectually disabled, but the law requires that he

have the opportunity to present evidence of his intellectual disability, including

deficits in adaptive functioning over his lifetime.” Hall, 134 S. Ct. at 2001; see

also In re Henry, 757 F.3d 1151, 1161 (11th Cir. 2014) (holding in the context of

federal habeas corpus review that Hall has no retroactive effect because it does not

articulate a “rule placing a class of individuals beyond the state’s power to

execute” but “merely provides new procedures for ensuring that States do not

execute members of an already protected group”).

      I would also conclude that Hall is not a change in the law of “fundamental

significance” under the Stovall/Linkletter7 test adopted in Witt for determining

“changes of law which are of sufficient magnitude to necessitate retroactive

application.” Witt, 387 So. 2d at 929, 931. This test recognizes

      that the essential considerations in determining whether a new rule of
      law should be applied retroactively are essentially three: (a) the
      purpose to be served by the new rule; (b) the extent of reliance on the
      old rule; and (c) the effect on the administration of justice of a
      retroactive application of the new rule.

Id. at 926. In Witt, the Court recognized that under this test “evolutionary

refinements”—in contrast to “jurisprudential upheavals”—do not warrant

retroactive application:




      7. Stovall v. Denno, 388 U.S. 293 (1967); Linkletter v. Walker, 381 U.S.
618 (1965).

                                        - 23 -
              In contrast to these jurisprudential upheavals are evolutionary
       refinements in the criminal law, affording new or different standards
       for the admissibility of evidence, for procedural fairness, for
       proportionality review of capital cases, and for other like matters.
       Emergent rights in these categories, or the retraction of former rights
       of this genre, do not compel an abridgement of the finality of
       judgments. To allow them that impact would, we are convinced,
       destroy the stability of the law, render punishments uncertain and
       therefore ineffectual, and burden the judicial machinery of our state,
       fiscally and intellectually, beyond any tolerable limit.

Id. at 929-30. Hall represents just such an evolutionary refinement in the law. I

thus would conclude that Hall should not be given retroactive effect under the

Stovall/Linkletter test based on (a) Hall’s purpose of adjusting at the margin the

definition of IQ scores that evidence significant subaverage intellectual

functioning, (b) the State’s reliance on Cherry’s8 holding in numerous cases over

an extended period of time, and (c) the ongoing threat of major disruption to

application of the death penalty resulting from giving retroactive effect to Hall as

well as similar future changes in the law regarding aspects of the definition of

intellectual disability.

       Finally, I would conclude that Hall does not constitute “a new substantive

rule of constitutional law” for which federal law requires retroactive application.




      8. Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007) (holding that SEM
need not be taken into account), cert. denied, 552 U.S. 993 (2007), abrogated by
Hall v. Florida, 134 S. Ct. 1986 (2014).


                                        - 24 -
Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016). The Supreme Court has

explained this category of substantive rules that must be given retroactive effect:

             Substantive rules, then, set forth categorical constitutional
      guarantees that place certain criminal laws and punishments altogether
      beyond the State’s power to impose. It follows that when a State
      enforces a proscription or penalty barred by the Constitution, the
      resulting conviction or sentence is, by definition, unlawful.
      Procedural rules, in contrast, are designed to enhance the accuracy of
      a conviction or sentence by regulating “the manner of determining the
      defendant’s culpability.” Schriro[ v. Summerlin, 542 U.S. 348, 353
      (2004)]; Teague[ v. Lane, 489 U.S. 288, 313 (1989) (plurality
      opinion)]. Those rules “merely raise the possibility that someone
      convicted with use of the invalidated procedure might have been
      acquitted otherwise.” Schriro, supra, at 352. Even where procedural
      error has infected a trial, the resulting conviction or sentence may still
      be accurate; and, by extension, the defendant’s continued confinement
      may still be lawful. For this reason, a trial conducted under a
      procedure found to be unconstitutional in a later case does not, as a
      general matter, have the automatic consequence of invalidating a
      defendant’s conviction or sentence.

Id. at 729-30. The Court thus has recognized that retroactive application is

appropriate because the “possibility of a valid result does not exist where a

substantive rule has eliminated a State’s power to proscribe the defendant’s

conduct or impose a given punishment.” Id. at 730; see also Welch v. United

States, 136 S. Ct. 1257, 1266 (2016) (“[T]he Court has adopted certain rules that

regulate capital sentencing procedures in order to enforce the substantive

guarantees of the Eighth Amendment. The consistent position has been that those

rules are procedural, even though their ultimate source is substantive.”).




                                        - 25 -
      In explaining why states should be required to give retroactive effect to such

new substantive rules, the Court stated:

      [T]he retroactive application of substantive rules does not implicate a
      State’s weighty interests in ensuring the finality of convictions and
      sentences. Teague warned against the intrusiveness of “continually
      forc[ing] the States to marshal resources in order to keep in prison
      defendants whose trials and appeals conformed to then-existing
      constitutional standards.” 489 U.S., at 310. This concern has no
      application in the realm of substantive rules, for no resources
      marshaled by a State could preserve a conviction or sentence that the
      Constitution deprives the State of power to impose.

Montgomery, 136 S. Ct. at 732.

      The change in the law accomplished by Hall does not render any sentence

“by definition, unlawful.” Id. at 730. Hall “merely raise[s] the possibility” that

someone found not to be intellectually disabled could be determined to be

intellectually disabled. Id. (quoting Schriro, 542 U.S. at 352). And if Hall is given

retroactive application, the state will most certainly be required to “marshal

resources” to sustain death sentences that have been imposed. Id. at 732 (quoting

Teague, 489 U.S. at 310). The rule adopted by Hall therefore is not a substantive

rule that is required to be given retroactive effect under federal law.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Okaloosa County,
     William Francis Stone, Judge - Case No. 461987CF000856XXXAXX

Baya Harrison, III, Special Assistant, Capital Collateral Regional Counsel –
Middle Region, Monticello, Florida,


                                         - 26 -
      for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney
General, Tallahassee, Florida; and Sandra Sue Jaggard, Assistant Attorney
General, Miami, Florida,

      for Appellee




                                     - 27 -
