          Supreme Court of Florida
                                  _____________

                                  No. SC10-1335
                                  _____________

                              FREDDIE LEE HALL,
                                  Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                [September 8, 2016]

PER CURIAM.

      This case comes before this Court on remand from the decision of the United

States Supreme Court in Hall v. Florida, 134 S. Ct. 1986 (2014). In our previous

decision in Hall v. State (Hall IX), 109 So. 3d 704 (Fla. 2012), we affirmed the

Fifth Circuit court’s denial of Hall’s postconviction motion, holding that our

interpretation of section 921.137(1), Florida Statutes, in Cherry v. State, 959 So. 2d

702, 712-13 (Fla. 2007), was proper. We concluded that because Hall failed to

establish that his IQ was below 70, the circuit court properly denied his claim. The

United States Supreme Court reversed our decision, holding that our decision

interpreted section 921.137 so narrowly that it precluded sentencing courts from
considering substantial evidence that is accepted by the medical community to be

probative of intellectual disability.

      Following the Supreme Court’s decision in Hall v. Florida, on July 25, 2014,

we granted Hall’s motion for supplemental briefing. After careful consideration of

the parties’ briefs, the voluminous record, and the United States Supreme Court’s

decision, we withdraw our prior opinion and conclude that Hall has demonstrated

that he meets the clinical, statutory, and constitutional requirements to establish

that his intellectual disability serves as a bar to execution. Accordingly, we reverse

the circuit court’s order denying postconviction relief, vacate Hall’s sentence of

death, and remand for imposition of a life sentence.

                                        FACTS

      Freddie Lee Hall was tried and convicted in Putnam Country for the 1978

murder of Karol Hurst.1 Hall v. State (Hall I), 403 So. 2d 1321, 1323 (Fla. 1981).


       1. The trial was moved from Sumter County to Putnam County on Hall’s
motion for change of venue. Hall and his codefendant, Mack Ruffin, were also
indicted for the murder of Deputy Sheriff Lonnie Coburn. Hall, 403 So. 2d at 1323
n.1. Hall was tried separately for the murder of Hurst. Id. The facts of the Hurst
murder are described differently by the courts. These facts are clear: Hurst was
seven months pregnant, forced into her car by Hall, driven to a secluded wooded
area, and then beaten, sexually assaulted, and shot. In Hall I, it is stated that the
State presented the evidence as though the codefendants acted in unison, although
Hall stated in his confession that Ruffin alone committed the sexual battery and
murder. Hall I, 403 So. 2d at 1323. In Hall VII, this Court summarized the facts
stating “both men raped the victim, after which she was beaten and shot and her
body dragged further into the woods. Later that day. . . they killed a deputy
sheriff.” Hall v. State (Hall VII), 614 So. 2d 473, 475 (Fla. 1993). The gun used

                                         -2-
This Court upheld Hall’s conviction and sentence on direct appeal. Id. at 1325.

On September 9, 1982, the governor signed Hall’s first death warrant, effective for

the week of October 1-8, 1982. Hall v. State (Hall II), 420 So. 2d 872, 873 (Fla.

1982). Hall filed a motion to vacate, a habeas petition, and an application for stay

of execution, all of which were denied. Id. Hall then sought habeas relief in the

federal court, which was denied without an evidentiary hearing. Hall v.

Wainwright (Hall III), 733 F.2d 766, 769 (11th Cir. 1984). Hall appealed to the

Eleventh Circuit Court of Appeals, which reversed in part and remanded for a

hearing. Id. at 777 (finding that Hall was entitled to a hearing on the issues of his

absence from the courtroom and whether he deliberately bypassed his ineffective

assistance of counsel claim).

      On remand, the district court again denied relief, finding that Hall’s absences

from trial occurred in non-critical stages and were therefore harmless, and that he

deliberately bypassed the ineffective assistance of counsel claim. Hall v.

Wainwright (Hall IV), 805 F.2d 945, 946 (11th Cir. 1986). The Eleventh Circuit



to kill Hurst was found under the deputy’s body. Id. However, in his special
concurrence in Hall VIII, Justice Anstead stated, “it is important to note that Hall
did not actually kill the victim. Rather, his codefendant, Ruffin, was the actual
killer. It should also not go unnoticed that the actual killer, Ruffin, received a life
sentence while Hall was sentenced to death.” Hall v. State (Hall VIII), 742 So. 2d
225, 233 (Fla. 1999) (Anstead, J., specially concurring (citing Hall VII, 614 So. 2d
at 478-79)). Accordingly, it is not readily apparent whether Hall committed the
murder, but this Court has found him to be an active participant in the crimes.

                                         -3-
affirmed the denial. Id. at 948. Hall then petitioned for habeas relief with this

Court based on the United States Supreme Court’s ruling in Hitchcock v. Dugger,

481 U.S. 393 (1987). This Court held that any error in the sentencing was

harmless. Hall v. Dugger (Hall V), 531 So. 2d 76 (Fla. 1988).

      The governor then signed a second death warrant on September 20, 1988.

Hall v. State (Hall VI), 541 So. 2d 1125, 1126 (Fla. 1989). Hall filed his second

3.850 motion, alleging error under Hitchcock. The trial court found that this

Court’s ruling on the issue in Hall V was a procedural bar to Hall’s raising the

claim again. Id. This Court disagreed, stating that the “case involves significant

additional non-record facts” that had not been considered on habeas review. Id.

Ultimately, this Court determined that a Hitchcock error occurred, and that such

error could not be considered harmless. Id. at 1128. This Court then vacated

Hall’s death sentence and remanded for a new sentencing proceeding. Id.

      During the resentencing,2 the trial court found Hall intellectually disabled as

a mitigating factor and gave it “unquantifiable” weight. State v. Hall, No. 78-52-

CF (Fla. 5th Jud. Cir. Feb. 21, 1991) (Findings of Fact for Sentencing Order). The

court again condemned Hall, and this Court affirmed. Hall VII, 614 So. 2d at 479.



      2. The resentencing was held in Marion County upon Hall’s motion for
change of venue and after the original trial judge disqualified himself, stating “the
only proper disposition herein is for the execution of the Death Sentence originally
imposed upon the defendant.”


                                         -4-
Hall sought postconviction relief, which was denied. Hall VIII, 742 So. 2d at 225.

This Court affirmed the denial. Id. at 230. In finding that the trial court properly

denied Hall’s claim that the court erred in finding him competent to proceed at the

resentencing, this Court stated “While there is no doubt that [Hall] has serious

mental difficulties, is probably somewhat retarded, and certainly has learning

difficulties and a speech impediment, the Court finds that [Hall] was competent at

the resentencing hearings.” Id. at 229. In a special concurrence, Justice Anstead

wrote that while the majority was technically correct regarding the procedural bars

to Hall’s claim, his intellectual disability should provide a bar to his execution.

Quoting Chief Justice Barkett’s dissent in Hall VII, he noted that the evidence

showed Hall’s mental retardation:

              The testimony reflects that Hall has an IQ of 60; he suffers
      from organic brain damage, chronic psychosis, a speech impediment,
      and a learning disability; he is functionally illiterate; and he has a
      short-term memory equivalent to that of a first grader. The defense’s
      four expert witnesses who testified regarding Hall’s mental condition
      stated that his handicaps would have affected him at the time of the
      crime. As the trial judge noted in the resentencing order, Freddie Lee
      Hall was “raised under the most horrible family circumstances
      imaginable.”
              Indeed, the trial judge found that Hall had established
      substantial mitigation. The judge wrote that the evidence conclusively
      demonstrated that Hall “may have been suffering from mental and
      emotional disturbances and may have been, to some extent, unable to
      appreciate the criminality of his conduct or to conform his conduct to
      the requirements of law.” Additionally, the judge found that Hall
      suffers from organic brain damage, has been mentally retarded all of
      his life, suffers from mental illness, suffered tremendous emotional
      deprivation and disturbances throughout his life, suffered tremendous

                                         -5-
      physical abuse and torture as a child, and has learning disabilities and
      a distinct speech impediment that adversely affected his development.
             Hall’s mental deficiency as an adult is not surprising. The
      sixteenth of seventeen children, Hall was tortured by his mother and
      abused by neighbors. Various relatives testified that Hall’s mother
      tied him in a “croaker” sack, swung it over a fire, and beat him; buried
      him in the sand up to his neck to “strengthen his legs”; tied his hands
      to a rope that was attached to a ceiling beam and beat him while he
      was naked; locked him in a smokehouse for long intervals; and held a
      gun on Hall and his siblings while she poked them with sticks. Hall’s
      mother withheld food from her children because she believed a famine
      was imminent, and she allowed neighbors to punish Hall by forcing
      him to stay underneath a bed for an entire day.
             Hall’s school records reflect his mental deficiencies. His
      teachers in the fourth, sixth, seventh, and eighth grades described him
      as mentally retarded. His fifth grade teacher stated that he was
      mentally maladjusted, and still another teacher wrote that “his mental
      maturity is far below his chronological age.”

Hall VIII, 742 So. 2d at 231 (Anstead, J. specially concurring (quoting Hall VII,

614 So. 2d at 479-80 (Barkett, C.J. dissenting))).

      In 2002, the Supreme Court ruled that the Eighth Amendment prohibited the

execution of a person with an intellectual disability. Atkins v. Virginia, 536 U.S.

304, 321 (2002). Hall filed a motion to declare section 921.137, Florida Statutes,

unconstitutional. While the motion was pending, this Court adopted rule 3.203 as

a mechanism to file Atkins claims. Hall timely filed such a claim on November

30, 2004. No action was taken on the motion until, on March 27, 2008, Hall filed

an unsuccessful motion to prohibit relitigation of the intellectual disability issue.

The court then held an evidentiary hearing on Hall’s successive motion to vacate

his sentence.


                                         -6-
      At the evidentiary hearing held on December 7-8, 2009, Hall presented

testimony from Dr. Valerie McClain, who testified that she did not obtain Hall’s

IQ; Lugene Ellis, Hall’s half-brother, who testified about his recollection of Hall as

a child; James Hall, Hall’s brother, who testified regarding Hall’s problems with

reading, writing, and caring for himself; Dr. Harry Krop, who testified that Hall’s

IQ using the Wechsler Adult Intelligence Scale Revised was 73; and Dr. Gregory

Prichard, who testified that Hall scored a 71 on the Wechsler Adult Intelligence

Scale Third Edition. Hall sought to introduce a report compiled by then-deceased

Dr. Bill Mosman through Dr. Prichard, but the court denied it and only allowed

Hall to proffer the report for the record. After reviewing the evidence presented,

the court determined that Hall could not meet the first prong to establish his

intellectual disability—an IQ below 70. The court denied relief in an order issued

May 26, 2010, and entered an amended order on June 16, 2010.

      Dr. Gregory Prichard reported that Hall started the first grade in public

school in 1950, at age six, and then failed. A second grade report in 1952 by the

school guidance counselor reported seven-year-old Hall’s mental maturity as far

below his chronological age. In 1953, eight-year-old Hall was described as very

inattentive and extra slow in comprehension. In 1954, nine-year-old Hall was

described as slow in all his work. Then in 1955, when he was in the fourth grade

and age ten, Hall was characterized as “Mentally Retarded” by school counselors.


                                         -7-
During his fifth-grade year, Hall was again described as slow in all phases of his

work and described as mentally maladjusted. In 1957 (at age eleven to twelve),

Hall was described as “Mentally Retarded.” In 1958 (at age twelve to thirteen),

Hall was again described as “Mentally Retarded,” and in 1961 (at age fourteen to

fifteen) Hall was once more described as “Mentally Retarded.” Hall’s elementary

school grades were Cs, Ds, and Fs, in a vast majority of classes in grades one

through six. In middle school, grades seven and eight, Hall had one D and eleven

Fs, and in high school his grades were Ds and Fs in all classes before he dropped

out in eleventh grade. Hall was socially promoted, a fact corroborated by a Florida

Department of Corrections (DOC) Classification and Admission Summary Report

dated December 24, 1968. In short, all of the information in Hall’s school and

military records shows a history of low intellectual functioning and provides strong

evidence of his mental retardation claim.

      The record reflects that attempts to locate Florida Public School records for

psychological testing administered during the 1950s were not successful.

However, based on Hall’s academic record, it is reasonable to believe that some

testing must have occurred because Hall was referred for placement in Special

Education classes and referred to as intellectually disabled in the school record.




                                        -8-
         The results of the testing performed on Hall are summarized in the following

chart:

                              Mental Health Evidence
 Dates/Hall’s Age            Administrator/Test/Records       Results
 12/24/68 Age 23             DOC Beta IQ                      IQ Score 76
                                                              Reading level 2.6
 2/11/69       Age 23        California Achievement           Level 3.8
 2/13/69       Age 23        DOC Report                       4-F Military
 8/22/69       Age 24        DOC Vocational Report            Adaptive deficits
                             Psychological DOC Screening      Reading level 2.6
                             Report
 9/13/78       Age 33        DOC Confidential Evaluation      “borderline
                             DSM-Diagnosis                    retardation in
                                                              intellectual ability”
 1/10/79       Age 33        DOC                              Score 79
                             Kent IQ Test                     Borderline
                                                              intelligence
                                                              Social difficulties
                                                              Illiteracy
                                                              Reading level 2.8
 9/8/86        Age 41        Dr. Barbara Bard                 Severe adaptive
                             Woodcock Johnson                 deficits
                             Psycho-Educational Battery
 9/10/86       Age 41        Dr. Dorothy Lewis, M.D.          Chronic brain
                             NYU Medical Center               damage
                             Neuropsychological Evaluation    Severe learning
                             (Halstead-Reitan)                disabled
 9/10/86       Age 41        Marilyn Feldman, M.A.            FSIQ-80
                             WAIS-R                           Organic brain
                                                              damage
                                                              Limited intelligence
 9/15/86       Age 41        Dr. Lelie Prichep, Ph.D.         Moderately abnormal
                             NY Medical Center
                             Neurometric Exam
 8/22/88       Age 43        Dr. Jethro Toomer, Ph.D.         IQ: 60
                             Psychologist, Florida            Organic brain
                             International University         damage


                                         -9-
Dates/Hall’s Age    Administrator/Test/Records        Results
                    Revised Beta/Bender Gestalt       DX: Mental
                    Adaptive Behavior Evaluated       retardation
10/18/90   Age 45   Dr. Johnathan Pincus, M.D.        DX: Mildly retarded
                    Georgetown University
                    Hospital
                    Neurological Exam/Evaluation
3/16/90    Age 45   Dr. Harry Krop, Ph.D.        FSIQ-73
                    Psychologist                 Cognitive deficits
1/8/91     Age 46   WAIS-R                       Mental age 13 years
                                                 DX: Functional
                                                 retardation
10/6/90    Age 45   Dr. Kathleen M. Heide, Ph.D  Cognitive deficits
                    Criminologist                Adaptive deficits:
                                                 Restricted
                                                 personality
                                                 development
5/12/95    Age 48   Dr. Mark Zimmerman,          FSIQ-74
                    Psychologist                 Deficiencies noted
                    WAIS                         Deficiencies noted
                    Wide Range Assessment        Deficiencies noted
                    Woodcock Johnson             Mildly deficient
                    Westwood Adult Scale Revised Brain damage
                    Retention Test               Deficits
                    Short Category Test          DX: Mentally
                    Adaptive Functioning         retarded and brain
                    Evaluation                   damaged. Possible
                                                 psychosis.

11/19/01   Age 51   Dr. Bill E. Mosman,               FSIQ-69
                    Psychologist                      FSIQ-52
                    WAIS-III                          Mental age -10
                    Leiter Adult Intelligence Scale   1st grade child
                    Slosson Intelligence              Adaptive deficits
                    WRAT-III                          DX: Mental
                    Vineland                          retardation
8/14/02    Age 57   Dr. Gregory Prichard,             FSIQ-71
                    Psychologist                      1st-2nd grade level
                    WAIS-III                          Adaptive deficits


                                - 10 -
 Dates/Hall’s Age          Administrator/Test/Records        Results
 8/15/02                   WRAT-III                          DX: Mentally
                           Vineland                          retarded
 11/25/08     Age 63       Dr. Joseph Sesta                  FSIQ-72
                           WAIS-IV
                           IQ Testing Administration Only

      As this Court stated in Hall VI, 541 So. 2d at 1127, “Hall’s childhood was

marked by an existence which can only be described as pitiful. Teachers and

siblings alike immediately recognized him to be significantly mentally retarded.”

            United States Supreme Court’s Decision in Hall v. Florida

      The United States Supreme Court held:

      On its face, the Florida statute could be consistent with the views of
      the medical community noted and discussed in Atkins. Florida’s
      statute defines intellectual disability for purposes of an Atkins
      proceeding as “significantly subaverage general intellectual
      functioning existing concurrently with deficits in adaptive behavior
      and manifested during the period from conception to age 18.” Fla.
      Stat. §921.137(1) (2013). The statute further defines “significantly
      subaverage general intellectual functioning” as “performance that is
      two or more standard deviations from the mean score on a
      standardized intelligence test.” Ibid. The mean IQ test score is 100.
      The concept of standard deviation describes how scores are dispersed
      in a population. Standard deviation is distinct from standard error of
      measurement, a concept which describes the reliability of a test and is
      discussed further below. The standard deviation on an IQ test is
      approximately 15 points, and so two standard deviations is
      approximately 30 points. Thus a test taker who performs “two or
      more standard deviations from the mean” will score approximately 30
      points below the mean on an IQ test, i.e., a score of approximately 70
      points.

Hall v. Florida, 134 S. Ct. at 2000-2001.




                                       - 11 -
      The Court explained that our statute may be interpreted consistently with

Atkins because it does not preclude taking the standard of error into account. Id. at

2001. The Court opined that the problem with our decision in Hall IX is that it

interpreted the statute too narrowly and held that a person with a score of above 70,

including a score within the margin for error, is barred from presenting evidence

that would show intellectual disability. Id. Because of this mandatory cutoff, the

Court opined that sentencing courts cannot consider substantial evidence such as

medical history, school and test reports, and testimony regarding past behavior,

even though this evidence is accepted by the medical community to be probative of

intellectual disability. Id. at 1994.

      The Court further explained that our decision in Hall IX disregards

established medical practice in two interrelated ways. Id. at 1995. First, it takes an

IQ score as final and conclusive evidence of a defendant’s intellectual capacity

when experts in the field would also consider other evidence. Id. Second, it relies

on the IQ score while refusing to recognize that the score may be imprecise. Id.

Instead of using a fixed number IQ score as determinative of intellectual disability,

Florida’s courts must also use other indicative evidence such as past performance,

environment, and upbringing. Id. at 1996. In sum, when determining the

eligibility for the death penalty of a defendant who has an IQ test score

approaching 70, Florida courts may not bar the consideration of other evidence of


                                        - 12 -
deficits in intellectual and adaptive functioning. Florida courts may continue to

abide by section 921.137(1), but may not have a bright-line cutoff IQ test score

because “[i]t is not sound to view a single factor as dispositive of a conjunctive and

interrelated assessment.” Hall v. Florida, 134 S. Ct. at 2001.

                          Application to Freddie Lee Hall

      The Supreme Court stated:

      Florida’s rule is in direct opposition to the views of those who design,
      administer, and interpret the IQ test. 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. Freddie 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.

Id. We therefore turn to the record to determine whether Hall has presented

sufficient evidence to establish that he meets the statutory definition of intellectual

disability. Because we find that Hall has demonstrated that he is intellectually

disabled, we vacate his sentence of death and remand with instructions to enter a

life sentence.

      At the evidentiary hearing below, despite granting the State’s motion in

limine to prevent Hall from introducing any evidence relating to adaptive

functioning, the court permitted Hall to proffer evidence related to all three

statutory prongs. The circuit court found that Hall failed to establish that he had

concurrent deficits in adaptive functioning. Specifically, the court relied on our


                                         - 13 -
opinion in Phillips v. State, 984 So. 2d 503 (Fla. 2008), stating that the expert

witnesses failed to properly interview correctional officers. The lower court’s

reading of Phillips is too narrow, especially in light of the Supreme Court’s

decision in Hall v. Florida.

      In Phillips, this Court held that Phillips’ experts’ reliance on retrospective

diagnosis, which focused solely on Phillips’ adaptive functioning prior to age 18,

was insufficient to satisfy the second prong of the intellectual disability prong.

Phillips, 984 So. 2d at 511 (citing Jones v. State, 966 So. 2d 319, 325-27 (Fla.

2007)). We opined that a defendant must demonstrate significantly subaverage

general intellectual functioning to exist with concurrent deficits in adaptive

behavior. Id. In Phillips, we were able to determine from the record that:

      Phillips does not suffer from deficiencies in adaptive functioning.
      Phillips supported himself. He worked as a short-order cook, a
      garbage collector, and a dishwasher. The mental health experts
      generally agreed that Phillips possessed job skills that people with
      mental retardation lacked. Specifically, the defense’s expert admitted
      that Phillips’s position as a short-order cook was an “unusually high
      level” job for someone who has mental retardation.

Id. The record further demonstrated that Phillips lived with his mother where he

paid most of the bills and did a majority of the household chores. Phillips also

cared for his nieces and nephews overnight, cooked, and went grocery shopping.

Id. In short, there was record evidence that Phillips lived a normal life prior to his

crimes, and our decision was not based solely on the retrospective analysis



                                        - 14 -
performed. The retrospective analysis in Phillips was focused solely on Phillips’

adaptive skills prior to the age of 18 and failed to consider any of his adult skills.

It was that limitation coupled with the record evidence that led to our decision.

      Indeed, in Jones v. State, 966 So. 2d 319 (Fla. 2007), we considered whether

a determination of the second prong was limited to an assessment of adaptive

functioning prior to age 18 “instead of an assessment of [a defendant’s] adaptive

functioning as an adult.” Id. at 325. We rejected that the statute and rule should be

read so narrowly. However, the lower court incorrectly read this Court’s decision

to preclude a retrospective analysis of Hall prior to his incarceration but while he

was an adult.

      Section 921.137(1) of the Florida Statutes defines “adaptive behavior” as

“the effectiveness or degree with which an individual meets the standards of

personal independence and social responsibility expected of his or her age, cultural

group, and community.” § 921.137(1), Fla. Stat. (2016). Evaluating the adaptive

behavior of an individual who has spent much of his adult life incarcerated can be

difficult. In another case before this Court, Williams v. State, No. SC13-1472, Dr.

Thomas Oakland explained that the Adaptive Behavior Assessment System II

(ABAS) scale is not normed on prison populations because:

      prison represents clearly the antithesis of the environment in which
      adaptive behavior can be displayed. The assumption in the
      assessment of adaptive behavior is that a person has considerable
      degrees of freedom and opportunity to decide what he or she will do

                                         - 15 -
      with his or her time and how they will progress. And within a prison
      setting the people of course are highly restricted as to the behaviors
      that they can display, and therefore we are not going to get an accurate
      assessment of adaptive behavior by . . . acquiring information on
      prison related behaviors.
Transcript of Evidentiary Hearing, Record on Appeal Vol. 48 at 4681, State v.

Williams, No. 93-003005CF10A (Fla. 17th Cir. Ct. Sept. 21, 2012). This difficulty

has also been acknowledged by the American Association on Intellectual and

Developmental Disabilities. See Dufour v. State, 69 So. 3d 235, 258 (Fla. 2011)

(Pariente, J., concurring in part and dissenting in part) (“much of the clinical

definition of adaptive behavior is much less relevant in prisons”). Accordingly, we

reject the trial court’s narrow reading of Phillips and the State’s argument that

mental health experts may only evaluate a prisoner’s adaptive functioning during

his or her incarceration.

      Hall committed the murder at issue in 1978 at the age of thirty-two, and has

been incarcerated ever since. As such, it would be illogical to preclude a

retrospective analysis of Hall’s deficits in adaptive functioning at the time of the

murder. The prohibition against executing the intellectually disabled is based, in

part, on their culpability at the time the crimes were committed. The reason that

defendants claiming intellectual disability must demonstrate its onset prior to

adulthood is to differentiate them from those who have suffered brain damage in

adulthood that rendered them incompetent but not intellectually disabled.



                                        - 16 -
      At the evidentiary hearing in 2009, the unrefuted opinion presented by Dr.

Gregory Prichard was that Hall meets the clinical definition of an intellectually

disabled person. Dr. Prichard made this determination in 2002 based on his

personal evaluation of Hall and the records and reports of the multiple other mental

health experts who evaluated Hall. Relating to adaptive functioning, Dr. Prichard

administered the Vineland Adaptive Behavior Scales Test and the Wide Range

Achievement Test in addition to reviewing Hall’s school records, DOC records,

prior mental health evaluation records, and speaking to Hall’s family members.

Thus, to find that Dr. Prichard failed to adequately determine Hall’s adaptive

functioning because he failed to speak to corrections officers ignores the depth and

breadth of Dr. Prichard’s evaluation and—worse—ignores that Dr. Prichard had

access to DOC records that also considered Hall to lack the skills necessary to

adequately cope with the more complex factors in his environment. Accordingly,

we find that Hall has presented evidence that satisfies the second prong.

      We also find that Hall has established the third prong. As noted by the

United States Supreme Court, age of onset was “not at issue” in this case. Hall v.

Florida, 134 S. Ct. at 1994. The State’s argument that a proper IQ test prior to the

age of 18 is the only valid evidence to establish this prong is unjustifiable and

would effectively preclude a finding of intellectual disability in most people born

prior to a certain era. This Court has never held that in order to find an intellectual


                                         - 17 -
disability, the defendant must have been given a specific IQ test prior to the age of

18. Such an inflexible view would not be supported by Hall v. Florida, which

recognized that, based on a consensus within the medical community, this prong

simply requires the “onset of these deficits during the developmental period.” Id.

at 1994. Further, this argument was raised and rejected in Oats v. State, 181 So. 3d

457, 469 (Fla. 2015) (holding that section 921.137(1), Florida Statutes, requires

only that intellectual disability be demonstrated to have manifested prior to age

eighteen, not that it be diagnosed).

                                   CONCLUSION

      In sum, the United States Supreme Court has made clear that when

determining whether an individual meets the criteria to be considered intellectually

disabled, the definition that matters most is the one used by mental health

professionals in making this determination in all contexts, including those “far

beyond the confines of the death penalty.” Hall v. Florida, 134 S. Ct. at 1993. As

such, courts cannot disregard the informed assessments of experts. Id. at 2000.

Here, the record evidence amassed over nearly thirty-seven years, and the

unrefuted testimony at the 2009 evidentiary hearing is that Hall meets the medical

definition of intellectually disabled.

      The State argues that it has not had a chance to have a full adversarial

proceeding to challenge Hall’s claim that he is intellectually disabled. Notably,


                                         - 18 -
this argument was not raised in the State’s initial supplemental brief, where it

merely asked this Court to affirm the lower court’s order based on Hall’s failure to

establish deficits in adaptive functioning, but only in its supplemental reply brief.

Additionally, at the evidentiary hearing, the State did not attempt to rebut the

testimony of the experts, but instead stated that “a clinician’s approach to mental

retardation . . . is not relevant to this proceeding.” Furthermore, the State’s

assertion is not supported by the record. As previously noted in Justice Pariente’s

concurring opinion after Hall’s most recent postconviction motion, the State came

into this proceeding forewarned for twenty years of Hall’s claim of intellectual

disability and was afforded the opportunity of a full adversarial proceeding under

Atkins. Hall IX, 109 So. 3d at 712-14 (Pariente, J., concurring) (noting that “in

2010, there was a true adversarial testing of whether Hall was [intellectually

disabled] under Florida’s statutory definition.”). The fact that the State has chosen

not to avail itself of prior opportunities is not a sufficient reason to expend further

resources to continue to litigate this issue.

      The United States Supreme Court was clear that this state is not free “to

define intellectual disability as [it] wishe[s],” and the unrefuted evidence in this

case has consistently demonstrated that Hall meets the clinical and statutory

definition of intellectual disability. The record evidence in this case

overwhelmingly supports the conclusion that “Hall has been [intellectually


                                         - 19 -
disabled] his entire life.” Accordingly, we vacate his sentence of death and remand

with instructions to enter a life sentence.

      It is so ordered.

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

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

CANADY, J., dissenting.

      In this case, the Supreme Court held “that an individual with an IQ test score

‘between 70 and 75 or lower’ . . . may show intellectual disability by presenting

additional evidence regarding difficulties in adaptive functioning.” Hall v. Florida,

134 S. Ct. 1986, 2000 (2014) (quoting Atkins v. Virginia, 536 U.S. 304, 309 n.5

(2002)). The Court recognized that “Freddie Lee Hall may or may not be

intellectually disabled,” and instructed “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. As instructed by the Supreme Court, I

would reverse the circuit court’s order denying Hall’s motion for postconviction

relief and remand for a new evidentiary hearing in which Hall and the State would

have an opportunity to litigate this intellectual disability claim under the standard

that has now been articulated by the Supreme Court. I therefore dissent from the


                                         - 20 -
majority’s decision to foreclose further evidentiary proceedings and to impose a

sentence of life.

      The majority asserts that Hall has presented sufficient evidence to establish

that he meets the statutory definition of intellectual disability. Majority op. at 13.

The majority relies on the fact that the circuit court permitted Hall to proffer

evidence related to all three statutory prongs of intellectual disability at the

evidentiary hearing, majority op. at 13, and the circuit court’s order denying

postconviction relief and the transcript from the evidentiary hearing reflect that

Hall proffered the testimony of Lugene Ellis, James Hall, and much of the

testimony of Dr. Prichard—including Dr. Prichard’s report in which he assessed

Hall for intellectual disability. But “[p]roffered evidence is merely a

representation of what evidence the defendant proposes to present and is not actual

evidence.” Grim v. State, 841 So. 2d 455, 462 (Fla. 2003); LaMarca v. State, 785

So. 2d 1209, 1216 (Fla. 2001) (same); see also Blackwood v. State, 777 So. 2d

399, 410 (Fla. 2000) (“In order to preserve a claim based on the court’s refusal to

admit evidence, the party seeking to admit the evidence must proffer the contents

of the excluded evidence to the trial court.”). The proffered evidence was not

subjected to adversarial testing, and its credibility was not evaluated by the trier of

fact. The majority thus errs by relying on proffered evidence to support its

conclusion that Hall has presented sufficient evidence to establish that he is


                                         - 21 -
intellectually disabled. It is a cardinal error for an appellate court to step outside

its proper role and make findings of fact based on a proffer.

      The majority asserts that the State is not entitled to a new evidentiary

hearing because it was afforded the opportunity of a full adversarial proceeding

where it failed to rebut or refute the proffered testimony of Hall’s experts.

Majority op. at 18-19. But the State, of course, had no obligation to rebut or refute

the proffered evidence. And it is doubly inappropriate to now fault the State for

failing to rebut evidence when that evidence only requires rebuttal because the law

has subsequently changed. At the time of the 2009 evidentiary hearing Hall failed

to provide evidence of an IQ score of 70 or below. Hall v. State, 109 So. 3d 704,

707-10 (Fla. 2012) (affirming the denial of Hall’s postconviction motion in

relevant part because Hall failed to present evidence of an IQ score of 70 or

below), rev’d and remanded, 134 S. Ct. 1986 (2014). And under clearly

established Florida law at that time, the State did not need to rebut or refute the

testimony of Hall’s experts because Hall’s claim was precluded by his failure to

provide evidence of an IQ score of 70 or below. See, e.g., Cherry v. State, 959 So.

2d 702, 712-13 (Fla. 2007) (holding that a person whose test score is above 70,

including a score within the margin for measurement error, does not have an

intellectual disability and is barred from presenting other evidence that would show

his faculties are limited), cert. denied, 552 U.S. 993 (2007), abrogated by Hall v.


                                         - 22 -
Florida, 134 S. Ct. 1986 (2014). This Court should not penalize the State for

failing in 2009 to anticipate the ruling the Supreme Court would hand down in

2014.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Sumter County,
     Richard Tombrink, Jr., Judge – Case No. 601978CF000052CFAXF

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Eric Calvin
Pinkard, Assistant Capital Collateral Regional Counsel – Middle Region, Tampa,
Florida; and Mark Evan Olive of the Law Office of Mark Olive, P.A., Tallahassee,
Florida,

        for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Carol Marie
Dittmar, Senior Assistant Attorney General, Tampa, Florida,

        for Appellee




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