          Supreme Court of Florida
                                  ____________

                                  No. SC15-1756
                                  ____________

                        MICHAEL DUANE ZACK, III,
                               Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  ____________

                                  No. SC16-1090
                                  ____________

                        MICHAEL DUANE ZACK, III,
                               Petitioner,

                                        vs.

                             JULIE L. JONES, etc.,
                                 Respondent.

                                  [June 15, 2017]

PER CURIAM.

      Michael Duane Zack, III, appeals an order of the circuit court denying his

motion to vacate his conviction of first-degree murder and sentence of death filed

under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ
of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For

the reasons that follow, we affirm the denial of postconviction relief and deny the

habeas petition.

                                      FACTS

      On June 25, 1996, Michael Zack was indicted for the sexual assault,

robbery, and first-degree murder of Ravonne Smith. We described the facts of the

case on direct appeal as follows:

             Although the murder of Smith took place on June 13, 1996, the
      chain of events which culminated in this murder began on June 4,
      1996, when Edith Pope (Pope), a bartender in Tallahassee, lent her car
      to Zack. In the weeks prior, Zack had come to Pope’s bar on a regular
      basis. He generally nursed one or two beers and talked with Pope; she
      never saw him intoxicated. He told her that he had witnessed his
      sister murder his mother with an axe. As a result, Pope felt sorry for
      Zack, and she began to give him odd jobs around the bar. When
      Zack’s girlfriend called the bar on June 4 to advise him that he was
      being evicted from her apartment, Pope lent Zack her red Honda
      automobile to pick up his belongings. Zack never returned.
             From Tallahassee, Zack drove to Panama City where he met
      Bobby Chandler (Chandler) at a local pub. Over the next several
      days, Zack frequented the pub daily and befriended Chandler.
      Chandler, who owned a construction subcontracting business, hired
      Zack to work in his construction business. When Chandler discovered
      that Zack was living out of a car (the red Honda), he invited Zack to
      live with him temporarily. On the second night at Chandler’s, Zack
      woke up screaming following a nightmare. Chandler heard Zack
      groan words which sounded like “stop” or “don’t.” Although
      Chandler questioned him, Zack would not discuss the nightmare.
      Two nights later, on June 11, 1996, Zack left Chandler’s during the
      night, stealing a rifle, a handgun, and forty-two dollars from
      Chandler’s wallet. Zack drove to Niceville, and on the morning of
      June 12, 1996, pawned the guns for $225.


                                        -2-
       From Niceville, Zack traveled to Okaloosa County and stopped
at yet another bar. At this bar, Zack was sitting alone drinking a beer
when he was approached by Laura Rosillo (Rosillo). The two left the
bar in the red Honda and drove to the beach, reportedly to use drugs
Zack said he possessed. Once on the beach, Zack attacked Rosillo
and beat her while they were still in the Honda. He then pulled
Rosillo from the car and beat her head against one of the tires.
Rosillo’s tube top was torn and hanging off her hips. Her spandex
pants were pulled down around her right ankle. The evidence
suggests she was sexually assaulted; however, the sperm found in
Rosillo’s body could not be matched to Zack. He then strangled her,
dragged her body behind a sand dune, kicked dirt over her face, and
departed.
       Zack’s next stop on this crime-riddled journey was Dirty Joe’s
bar located near the beach in Pensacola. He arrived there on the
afternoon of June 13, 1996, and met the decedent, Ravonne Smith.
Throughout the afternoon, Smith, a bar employee, and Zack sat
together in the bar talking and playing pool or darts. The bar was not
very busy, so Smith spent most of her time with Zack. Both bar
employees and patrons testified that Zack did not ingest any
significant amount of alcohol and that he did not appear to be
intoxicated. In the late afternoon, Smith contacted her friend Russell
Williams (Williams) and invited him to the bar because she was
lonely. Williams arrived at the bar around 5:30 p.m. Prior to leaving
the bar around 7 p.m., Smith called her live-in boyfriend, Danny
Schaffer, and told him she was working late. Smith, Williams, and
Zack then left the bar and drove to the beach where they shared a
marijuana cigarette supplied by Zack. Afterwards, they returned to
the bar and Williams departed. Zack and Smith left the bar together
sometime around 8 p.m. and eventually arrived at the house Smith
shared with her boyfriend.
       Forensic evidence indicates that immediately upon entering the
house Zack hit Smith with a beer bottle causing shards of glass and
blood to spray onto the living room love seat and two drops of blood
to spray onto the interior doorframe. Zack pursued Smith down the
hall to the master bedroom leaving a trail of blood. Once in the
bedroom Zack sexually assaulted Smith as she lay bleeding on the
bed. Following the attack Smith managed to escape to the empty
guest bedroom across the hall. Zack pursued her and beat her head
against the bedroom’s wooden floor. Once he incapacitated Smith,

                                 -3-
      Zack went to the kitchen where he got an oyster knife. He returned to
      the guest bedroom where Smith lay and stabbed her in the chest four
      times with the knife. The four wounds were close together in the
      center of Smith’s chest. Zack went back to the kitchen, cleaned the
      knife, put it away, and washed the blood from his hands. He then
      went back to the master bedroom, placed Smith’s bloody shirt and
      shorts in her dresser drawer, stole a television, a VCR, and Smith’s
      purse, and placed the stolen items in Smith’s car.
             During the night, Zack drove Smith’s car to the area where the
      red Honda was parked. He removed the license plate and several
      personal items from the Honda then moved it to a nearby lot. Zack
      returned to Panama City in Smith’s car and attempted to pawn the
      television and VCR. Suspecting the merchandise was stolen, the shop
      owners asked for identification and told Zack they had to check on the
      merchandise. Zack fled the store and abandoned Smith’s car behind a
      local restaurant. Zack was apprehended after he had spent several
      days hiding in an empty house.
             After he was arrested, Zack confessed to the Smith murder and
      to the Pope and Chandler thefts. Zack claimed he and Smith had
      consensual sex and that she thereafter made a comment regarding his
      mother’s murder. The comment enraged him, and he attacked her.
      Zack contended the fight began in the hallway, not immediately upon
      entering the house. He said he grabbed a knife in self-defense,
      believing Smith left the master bedroom to get a gun from the guest
      bedroom.

Zack v. State (Zack I), 753 So. 2d 9, 13-14 (Fla. 2000) (footnotes omitted). A jury

found Zack guilty on all counts on September 15, 1997. Id. at 12.

      After the penalty phase hearing, the jury recommended a sentence of death

by a vote of eleven to one. Id. Following the jury’s recommendation, the trial

court sentenced Zack to death on November 14, 1997.1 On direct appeal, Zack


      1. The trial judge found the following six aggravators to support the death
sentence:


                                       -4-
raised twelve issues.2 Id. at 16 n.5. We affirmed the convictions and death

sentence. Id. at 26. On October 2, 2000, the Supreme Court denied certiorari

review. Zack v. Florida, 531 U.S. 858 (2000).



       (1) the defendant was convicted of a capital felony while under a
       sentence of felony probation; (2) the crime was committed in
       conjunction with a robbery, sexual battery, or burglary; (3)
       the defendant committed the crime to avoid lawful arrest; (4) the
       defendant committed the crime for financial gain; (5) the crime was
       especially heinous, atrocious, [or] cruel; and (6) the crime was
       committed in a cold, calculated, and premeditated manner.

Zack I, 753 So. 2d at 12-13. The trial court assigned little weight to the following
four mitigators:

       (1) the defendant committed the crime while under an extreme mental
       or emotional disturbance; (2) the defendant was acting under extreme
       duress; (3) the defendant lacked the capacity to appreciate the
       criminality of his conduct or to conform his conduct to the
       requirements of law; and (4) nonstatutory mitigating factors of
       remorse, voluntary confession, and good conduct while incarcerated.
       Zack’s age was not considered a mitigating factor.

Id. at 13.

       2. Zack raised the following claims on direct appeal:

       (1) the court erred in admitting Williams[v. State, 110 So. 2d 654 (Fla.
       1959),] rule evidence; (2) the court erred in denying a motion for
       judgment of acquittal on the sexual battery charge; (3) the trial court
       erred in denying the motion for judgment of acquittal on the robbery
       charge; (4) the trial court erred in instructing the jury on felony
       murder based upon a burglary; (5) the sentencing order failed to
       consider all of the mitigating evidence presented; (6) the trial court
       erred in finding that the murder was committed to avoid or prevent a
       lawful arrest; (7) the trial court erred in finding that the murder was
       committed in a cold, calculated and premeditated manner; (8) the trial

                                        -5-
      On October 18, 2002, Zack filed his first amended 3.851 motion in the trial

court, raising six claims. While Zack’s motion was pending, the Supreme Court

decided Atkins v. Virginia, 536 U.S. 304 (2002), which held that the execution of

an intellectually disabled person is cruel and unusual punishment in violation of

the Eighth Amendment. The trial court denied Zack’s rule 3.851 motion on July

14, 2003. Zack raised six issues before this Court on appeal.3 Zack v. State (Zack

II), 911 So. 2d 1190 (Fla. 2005). This Court affirmed the trial court’s order and

noted that the “evidence in this case shows Zack’s lowest I.Q. score to be 79.” Id.




      court erred in using victim impact evidence; (9) the trial court erred in
      admitting the rebuttal evidence from Candice Fletcher; (10) the trial
      court erred by failing to give Zack’s proposed instruction on the role
      of sympathy; (11) the trial court erred in retroactively applying the
      aggravating factor of a murder committed while on felony probation;
      and (12) the trial court erred in refusing to admit a family photo
      during the penalty phase.

Zack I, 753 So. 2d at 16 n.5.
        3. On postconviction appeal, Zack raised the following issues: (1) trial
counsel was ineffective for failing to challenge the DNA evidence presented by
the State; (2) counsel was ineffective because he failed to prepare Zack to testify at
trial; (3) counsel was ineffective because he made prejudicial remarks to the jury in
the opening statement and closing argument; (4) the trial court erred in summarily
denying claims raised in his motion for postconviction relief involving Zack’s right
to a Frye[v. United States, 293 F. 1013 (D.C. Cir. 1923),] hearing and the
constitutionality of the death sentence under Atkins; (5) that Florida’s capital
sentencing scheme is unconstitutional under Ring[v. Arizona, 536 U.S 584
(2002)]; and (6) collateral counsel was ineffective. Zack II, 911 So. 2d at 1197.


                                        -6-
at 1201. The Court also denied relief on Zack’s petition for writ of habeas corpus,

filed on February 12, 2004. Id. at 1203.

      Zack filed a successive postconviction motion on December 1, 2004, raising

an Atkins claim. The trial court denied the claim without an Atkins hearing,

finding that after a review of the expert trial testimony none had found Zack’s I.Q.

to be near the required statutory figure of 70 in order to establish intellectual

disability. This Court affirmed the trial court’s denial. In its order, this Court

relied on Cherry v. State, 781 So. 2d 1040 (Fla. 2000), and held that “Zack has not

provided any new evidence of [intellectual disability] and previous evidence

demonstrates that his I.Q. was well above the statutory figure of 70 or below.”

      On March 4, 2005, Zack filed a second petition for a writ of habeas corpus

based upon the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36

(2004). This Court denied the petition on October 6, 2005. Zack v. Crosby, 918

So. 2d 240 (Fla. 2005).

      Zack also filed a federal habeas petition that included an Atkins claim. Zack

v. Crosby, 607 F. Supp. 2d 1291 (N.D. Fla. 2008). All claims not based on Atkins

were dismissed with prejudice as untimely. Id. at 1295. Zack’s Atkins claim was

denied with prejudice on the merits on March 26, 2009. In its order, the court

found that the record refuted Zack’s allegation that he is intellectually disabled and

held that the record uniformly concluded that Zack’s I.Q. was significantly above


                                          -7-
the minimum threshold for intellectual disability. The Eleventh Circuit, in an en

banc opinion, affirmed the dismissal of many of the claims in the habeas petition as

untimely. Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013). The Supreme Court

denied certiorari review on October 7, 2013. Zack v. Crews, 134 S. Ct. 156

(2013).

      On May 26, 2015, Zack filed a second successive postconviction motion

raising a claim of intellectual disability based on Hall v. Florida, 134 S. Ct. 1986

(2014). The trial court summarily denied the motion on July 8, 2015. Zack now

appeals from the circuit court’s denial of relief, arguing that the court erred in (1)

summarily denying Zack an evidentiary hearing on his intellectual disability claim

and (2) dismissing Zack’s motion on the basis that his I.Q. was too high for an

Atkins hearing without considering other evidence as required by Hall.

                                     ANALYSIS

      Zack’s first claim is based on the trial court’s summary denial of his motion

pursuant to a rule of law that has now been found unconstitutional under Hall.

During the pendency of this case, we determined that Hall applies retroactively as

a development of fundamental significance. Walls v. State, 213 So. 3d 340, 346

(Fla. 2016).

      A postconviction court’s decision on whether to grant an evidentiary hearing

on a claim is a pure question of law, reviewed de novo. Mann v. State, 112 So. 3d


                                          -8-
1158, 1162 (Fla. 2013). A claim may be summarily denied if it is legally

insufficient or positively refuted by the record. Id. at 1161. To prevail on a claim

of intellectual disability, a defendant must establish three elements: (1)

significantly subaverage general intellectual functioning, (2) existing concurrently

with deficits in adaptive behavior, and (3) manifesting prior to age 18. § 921.137,

Fla. Stat. (2016); Fla. R. Crim. P. 3.203.

      Hall recognizes that intellectual disability “is a condition, not a number.”

Hall, 134 S. Ct. at 2001. In a recent opinion, we found that Hall requires courts to

consider all three prongs of intellectual disability in tandem and that no single

factor should be dispositive of the outcome. See Oats v. State, 181 So. 3d 457, 459

(Fla. 2015). However, Hall also states that a “defendant must be able to present

additional evidence of intellectual disability” where “a defendant’s I.Q. test score

falls within the test’s acknowledged and inherent margin of error.” Hall, 134 S. Ct.

at 2001. Generally, the standard error of measurement is approximately five

points. Id. at 1998 (citing to Diagnostic and Statistical Manual of Mental

Disorders 28 (rev. 3d ed. 1987)). Thus, an “I.Q. score of 70 is considered to

represent a band or zone of 65 to 75.” Id.

      The trial court correctly found the significantly subaverage intellectual

functioning prong dispositive of Zack’s intellectual disability claim based on




                                         -9-
Zack’s scores prior to age 18, which were all over 75. At the Huff4 hearing, Zack

presented his full range of scores, as well as evidence of adaptive deficits before

age 18. The record demonstrates five I.Q. scores for Zack: a score of 92 in 1980

when Zack was 11 years old, and four scores after Zack turned 18—84 and 86 in

1997 at 27 years of age, 79 in 2002, and 80 in 2015. While a holistic hearing is

required, defendants must still be able to meet the first prong of Hall. Because

Zack’s current score is well above 75, and there are no scores in his history below

75, it is unlikely that he would ever be able to satisfy the significantly subaverage

intellectual functioning prong. Accordingly, we affirm the trial court’s summary

denial of Zack’s intellectual disability claim.

      Zack’s second claim is that the trial court erred in dismissing his motion on

the basis that his I.Q. was too high for an Atkins hearing without considering other

evidence as required by Hall. In reviewing the trial court’s determination that

Zack is not intellectually disabled, “this Court examines the record for whether

competent, substantial evidence supports the determination of the trial court.”

State v. Herring, 76 So. 3d 891, 895 (Fla. 2011). We do not “reweigh the evidence

or second-guess the circuit court’s findings as to the credibility of witnesses.”




      4. Huff v. State, 622 So. 2d 982 (Fla. 1993).


                                         - 10 -
Brown v. State, 959 So. 2d 146, 149 (Fla. 2007). However, questions of law are

reviewed de novo. Herring, 76 So. 3d at 895.

      We find that the trial court’s determination that Zack did not satisfy the

significantly subaverage intellectual functioning prong is supported by competent,

substantial evidence. As previously mentioned, Zack provided several I.Q. scores

that were all well outside the standard error of measurement. While Zack argues

that Hall requires the trial court to consider other evidence, a defendant’s scores

must first fall within the test’s acknowledged and inherent margin of error. Hall,

134 S. Ct. at 2001. Here, all of the scores presented—92, 84, 86, 79, and 80—are

outside of the test’s margin of error and the presentation of evidence regarding the

other two prongs do not cure Zack’s inability to satisfy the first. Consequently, we

affirm the trial court’s determination.

                PETITION FOR WRIT OF HABEAS CORPUS

      In his petition for habeas corpus relief, Zack asserts that his death sentence is

unconstitutional under Hurst v. Florida, 136 S. Ct. 616 (2016). In Hurst v. Florida,

the Supreme Court found that a jury must make a specific factual finding with

regard to the existence of mitigating or aggravating circumstances supporting a

death sentence in order to preserve the Sixth Amendment right to a jury trial. Id. at

622. We have interpreted Hurst v. Florida, an extension of Ring v. Arizona, 536

U.S. 584 (2002), to require a jury to unanimously find each aggravating factor, that


                                          - 11 -
the aggravating factors are sufficient to warrant death, and that the aggravating

factors outweigh the mitigation. See Hurst v. State (Hurst), 202 So. 3d 40, 57, 66

(Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017). However, Zack’s first-

degree murder conviction and sentence of death were final in 2000, before the

Supreme Court decided Ring. Therefore, Zack is not entitled to Hurst relief

because Hurst does not apply retroactively to cases that were final before Ring was

decided. See Asay v. State, 210 So. 3d 1, 22 (Fla. 2016). Accordingly, we deny

relief on this claim.

                                   CONCLUSION

      In light of the foregoing, we affirm the trial court’s denial of relief on Zack’s

postconviction motion to vacate his conviction of first-degree murder and sentence

of death, and we deny habeas relief.

      It is so ordered.

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

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

CANADY, J., specially concurring.

      I concur in the conclusion that Zack’s IQ scores justify the denial of his

intellectual disability claim. I also agree that Zack is not entitled to Hurst v.

                                         - 12 -
Florida, 136 S. Ct. 616 (2016), postconviction relief and that the habeas petition

should therefore be denied. But I would not rely on Asay v. State, 210 So. 3d 1

(Fla. 2016). Instead, I would deny the Hurst claim on two grounds. First, no Hurst

error occurred in this case—given the contemporaneous convictions establishing

aggravation. See Hurst v. State, 202 So. 3d 40, 77-83 (Fla. 2016) (Canady, J.,

dissenting). Second, in any event Hurst should not be given retroactive

application. See Mosley v. State, 209 So. 3d 1248, 1285-91 (Fla. 2016) (Canady,

J., concurring in part and dissenting in part).

POLSTON, J., concurs.

PARIENTE, J., concurring in result.

      I would not deny retroactive application of Hurst v. State (Hurst), 202 So. 3d

40 (Fla. 2016), cert. denied, No. 16-998 (U.S. May 22, 2017), to Zack, but because

I am bound by this Court’s precedent from Asay v. State, 210 So. 3d 1 (Fla. 2016),

I concur in result with the majority’s rejection of Zack’s Hurst claim. I do concur,

however, in the majority’s rejection of Zack’s intellectual disability claim and

write separately to emphasize that Zack’s range of IQ scores do not approach “the

test’s acknowledged and inherent margin of error.” Hall v. Florida, 134 S. Ct.

1986, 2001 (2014). As the majority explained, “[t]he record demonstrates five I.Q.

scores for Zack: a score of 92 in 1980 when Zack was 11 years old, and four scores

after Zack turned 18—84 and 86 in 1997 at 27 years of age, 79 in 2002, and 80 in


                                         - 13 -
2015.” Majority op. at 10. Thus, because Zack’s lowest I.Q. scores do not fall

within the test’s margin of error, it is unnecessary to conduct a “conjunctive and

interrelated” assessment of Zack’s evidence of intellectual disability as required by

Hall. Cf. Walls v. State, 213 So. 3d 340, 346 (Fla. 2016); Oats v. State, 181 So. 3d

457, 467 (Fla. 2015).

LAWSON, J., concurring in result.

      See Okafor v. State, No. SC15-2136, slip op. at 15 (Fla. June 8, 2017)

(Lawson, J., concurring specially).

An Appeal from the Circuit Court in and for Escambia County,
     Linda Lee Nobles, Judge - Case No. 171996CF002517XXXAXX
And an Original Proceeding – Habeas Corpus

Robert S. Friedman, Capital Collateral Regional Counsel, and Dawn B. Macready
and Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern
Region, Tallahassee, Florida,

      for Appellant/Petitioner

Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant
Attorney General, Tallahassee, Florida,

      for Appellee/Respondent




                                        - 14 -
