# Supreme Court of Florida

____________

No. SC15

- 1449

____________

FRANK A. WALLS,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[October 20 , 2016]

CORRECTED OPINION

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 jurisd iction 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 ap propriate standards

.

FACTS AND PROCEDURAL HISTORY

We have described the facts of this case as follows:- 2

- 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 Co unty 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 lef

t 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, se veral 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, Alg er continued to

struggl e, 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 stru ggle, 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 tim e.

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 f iled 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 W alls 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- 3

-

Peterson. The trial judge concurred. The conviction later was

reversed an d 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, testimon y 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

stru cture, 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 e motional 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 whe n 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 dec lined 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, dou ble 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 mur der, 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 sen tence, the judge found six aggravators: prior violent

felony for the contemporaneous murder of Alger; committed during a burglary or- 4

-

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

murder was especially heinous, atrocious, o r 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, Wall s raised nine issues:

(1) the trial co urt 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 b lack 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 arre st aggravator was improper; (7) the trial court

required Walls to prove the mitigating factors by a preponderance of- 5

-

the evidence; (8) the trial court improperly rejected expert testimony

that Walls was suffering from extreme emotional disturbance and

subs tantial 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 p hase 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 unco nstitutional 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

ag gravating 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 the m. 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.- 6

-

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

admiss ion 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 fa ilure 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 claims 2 and his claim that his death sentence is

improper because he is intellectua lly 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 Procedur e 3.203 3 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 11 69

- 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 ele ments: (1) significantly subaverage intellectual general functioning

that (2) exists concurrently with deficits in adaptive behavior and which has (3)- 7

-

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 w hich defense expert

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

mental condition. T he 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 th e 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 . W alls’ IQ scores are as follows: 102 at age 12, 101 at age 14, 72 at about

age 23, and 74 at approximately age 40.- 8

-

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

,

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

1986 (2014) , changed the de finition 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 he aring.

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 H uff 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 S tate 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 res ponse, Brody presented limited- 9

-

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 rece ived 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.- 10

-

subaverage intellectual functioning that manifested prior to age 18. In a ddition, the

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

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

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

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 tha t 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 firs t.

I. Retroactive A pplication 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

.- 11

-

Prior to the decision in Hall , a Florida defen dant with an IQ score above 7 0 could

not be deemed intellectual ly disabled and

, therefore

, was barred from presenting

evidence regarding the other two prongs of the test for intellectua l 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 i n the field would consider other evidence,” and second, by relying on a

“purportedly scientific measureme nt of the defendant’s abilities”

— his IQ score

—

without recognizing that the measurement itself has an inherent margin of error,

resulting in a ranged sc ore 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. According ly, 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 i s, therefore, unconstitutional

. Id. at 1990.

W e must first determine whether Hall warrants retroactive application under

Witt v. State , 387 So. 2d 922 (Fla. 1980) , before deciding whether Hall applies to- 12

-

Walls’ case

. A change in the law will only apply retroactively if the change “ (a)

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

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

931

. D evelopment s 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 pena lties ” 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. T hus, 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 pena lties

. ” Id.

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

means defendant s with IQ score s 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- 13

-

prongs.” Oats v. State , 181 So. 3d 457, 467

- 68 (Fla. 2015). The rejection of the

strict IQ score cutoff increase s the number of potential cases in which the S tate

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

more defendants may be eligible for relief

. Accordingly, the Hall decision

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

cases in which the defendant has an IQ score of 70 or below. W e 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 with in a b roader 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 decisio n only invalidated a statute as applied to a

specific subgroup of people, the decision was only a procedural re finement 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)).- 14

-

Reviewing this case , i t 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

. Al so, 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’ c laim 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 F INAL 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- 15

-

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 th e case. 69 6 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.

Contrar y 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 metho d for determining those who are ineligible for execution

violates the Eighth Amendment:

The Florida s tatute, 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 dete rmining 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- 16

-

to relying on just one factor as dispositive . . . because thes e 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 “ongoin g 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 unpu blished O rder 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

. Ro driguez

, 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 dec ided 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 scor es 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

stat ed by the trial court.- 17

-

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 no t 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 a pply 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 possibl e

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

326 (Fla. 1980).- 18

-

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. Perso ns 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. T he

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 heari ng 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 majo rity ignores a deficiency in Walls ’ case

— his f ailure 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- 19

-

(2014)

, and in the pr ocess misconstrues the holding in Hall

. Third, the C ourt

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 pe riod from conception

to age 18.” § 92 1.137(1), Fla. Stat. (2006). This requirement of juve nile 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 pr ong 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 te st for intellectual disability.” Majority op. at 12. According to the majority,

Hall requi res that “no single factor

. . . be conside red dispositive” but that every- 20

-

intellectual disability claim must ins tead 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 es tablish 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 C ourt was crystal clear concerning the question at issue: “That

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

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

S tates which use a brigh t

- line cutoff at 75 or greater.” Id. at 1996. Therefore,

contrary to the majority ’s mandate of “holistic review,” noth ing in Hall calls into

question the statutory provision that intellectual disability can be established only

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

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

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

independent requirement should no t be cast aside in the name of “holistic review.”

Contrary to the majority’s reasoning, Hall recognizes that the existence of an IQ- 21

-

score evidencing significantly subaverage general intellectual functioning is a

threshold requirement for determining whether an individu al is intellectually

disabled: “ For professionals to diagnose

— and for the law then to determine

—

whether an intellec tual 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 de ficits 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 C ourt in Hall focuses on Florida ’ s failure to consider the SEM. And

the C ourt repeatedly identifies that failure as t he basis for its dec ision. 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

definiti ons have long included the SEM.” Id. at 1999

. T he 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 cons ensus, 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- 22

-

presenting additional evidence regarding diffic ulties 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 d eficits.” Id. at 2001

. The Court

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

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

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

individual ’ s IQ score is de termined to be greater than 75

— and the SEM th us has

been taken into account

— the ho lding of Hall has no bearing on the case.

III.

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

ap plication under Witt v. State

, 387 So. 2d 922 (Fla. 1980), “ as a development of

fundamental signi ficance that places beyond the S tate 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 who se 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 h e was intellectually disabled: “ Freddie- 23

-

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; s ee

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 effec t 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 member s of an already protected group” ).

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

significance” under the Stovall / Linkletter 7 test adopte d in Witt for determining

“ changes of law which are of sufficient magnitude to neces sitate 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 administra tion of justice of a

retroactive application of the new rule.

Id. at 926

. In Witt

, the C ourt r ecognized that under this test “ evolution ary

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).- 24

- In contrast to the se 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.

Emerge nt 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 a nd

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 ’ s 8 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 substan tive

rule of constitutional law” for which f ederal 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)

.- 25

-

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 t he 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, t he 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 convict ion or sentence.

Id. at 729

- 30. The Court thus has recognized that retroactive applicat ion 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

conduc t 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 Ame ndment. The consistent position has been that those

rules are procedural, even though their ultimate source is substantive.”).- 26

-

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

new substantive rules, the Court stated:

[T]he re troactive 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 convictio n 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 federa l law.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Okaloosa County,

William Francis Stone, Judge

- Case No. 461987CF000856XXXAXX

Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,

Northern District of Florida, Tallahassee, Florida; and Baya Harrison, III , Special- 27

-

Assistant, Capital Collateral Regional Counsel

– Middle Region, Monticello,

Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Charmaine Millsaps , Assistant Attorney

General, Tal lahassee, Florida; and Sandra Sue Jaggard , Assistant Attorney

General, Miami, Florida,

for Appellee