Supreme Court of Florida

____________

No. SC15-1752

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WILLIAM THOMPSON 

Appellant,

vs.

STATE OF FLORIDA 

Appellee.

[November 10, 2016]

PER CURIAM.

William Lee Thompson was convicted of first-degree murder and sentenced 

to death for a 1976 murder. His sentence became final in 1993. Since the United 

States Supreme Court held that it was unconstitutional to execute persons with 

intellectual disabilities in Atkins v. Virginia, 536 U.S. 304 (2002), Thompson has 

timely raised claims that he is intellectually disabled and cannot be executed. In 

denying Thompson relief, as more fully explained, the trial court and this Court 

relied on Cherry v. State, 959 So. 2d 702, 712-14 (Fla. 2007), which held that if a 

defendant could not establish an IQ score of 70 or below, then his intellectual 

disability claim should be denied without consideration of the other prongs of the 
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intellectual disability test. In Hall v. Florida, 134 S. Ct. 1986, 1990 (2014), the 

United States Supreme Court held that Florida’s strict bright-line cutoff of 70 for 

IQ scores with respect to the first prong of the intellectual disability test “creates an 

unacceptable risk that persons with intellectual disabilities will be executed” in 

violation of Atkins and is, therefore, unconstitutional.1 Hall specifically 

disapproved of the bright-line cutoff of 70 for IQ scores stated by this Court in

Cherry. Id. at 2000. 

Although Thompson has had a broad range of IQ scores over his lifetime, he 

received several IQ scores below 75, and in 2009 the defense expert tested him 

with a score of 71. In reviewing the history of this case, it is clear that Thompson 

did not receive the type of “conjunctive and interrelated assessment” that Hall

requires, as more recently set forth in Oats v. State, 181 So. 3d 457, 460 (Fla. 

2015). As this Court stated in Oats, Hall did not just require that courts consider 

the statistical error margin in determining IQ, it also changed the manner in which 

intellectual disability evidence must be considered: “courts must consider all three 

prongs in determining an intellectual disability, as opposed to relying on just one 

 

1. This is an appeal from the circuit court’s order denying a successive 

motion for postconviction relief, which was filed pursuant to Florida Rule of 

Criminal Procedure 3.851. Because the order concerns postconviction relief from 

a sentence of death, this Court has jurisdiction of the appeal under article V, 

section 3(b)(1), of the Florida Constitution.
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factor as dispositive . . . because these factors are interdependent, if one of the 

prongs is relatively less strong, a finding of intellectual disability may still be 

warranted based on the strength of other prongs.” 181 So. 3d at 467-68. This 

Court’s recent opinion on remand in Hall v. State, 41 Fla. L. Weekly S372, 2016 

WL 4697766 (Fla. Sept. 8, 2016), reaches the same conclusion in granting relief.

Because the trial court and this Court relied, in part, on the now invalid

bright-line cutoff of an IQ score of 70 in denying Thompson relief, we have 

determined that Thompson should receive the benefit of Hall. Not only have we 

determined that Hall is retroactive utilizing a Witt2analysis, Walls v. State, 2016 

WL 6137287 (Fla. Oct. 20, 2016), but to fail to give Thompson the benefit of Hall, 

which disapproved of Cherry, would result in a manifest injustice, which is an 

exception to the law of the case doctrine. See State v. Owen, 696 So. 2d 715, 720 

(Fla. 1997) (“[t]his Court has the power to reconsider and correct erroneous rulings 

in exceptional circumstances and where reliance on the previous decision would 

result in manifest injustice, notwithstanding that such rulings have become the law 

of the case” and that “[a]n 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”). Because Thompson’s eligibility or ineligibility for 

 

2. Witt v. State, 387 So. 2d 922 (Fla. 1980).
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execution must be determined in accordance with the correct United States 

Supreme Court jurisprudence, this case is a prime example of preventing a 

manifest injustice if we did not apply Hall to Thompson. Accordingly, we reverse 

the summary order denying relief and remand to the trial court for a new 

evidentiary hearing on intellectual disability pursuant to the United States Supreme 

Court’s holding in Hall and this Court’s holding in Oats.

3

FACTS AND PROCEDURAL HISTORY BEFORE ATKINS

Thompson pled guilty to the March 30, 1976, brutal beating death of the 

victim, Sally Ivester. Thompson v. State, 389 So. 2d 197, 198 (Fla. 1980). In 

Thompson, this Court described the crimes, which occurred when William Lee 

Thompson was 24 years old:

The appellant Thompson, Rocco Surace, Barbara Savage, and the 

victim Sally Ivester were staying in a motel room. The girls were 

instructed to contact their homes to obtain money. The victim 

received only $25 after telling the others that she thought she could 

get $200 or $300. Both men became furious. Surace ordered the 

victim into the bedroom, where he took off his chain belt and began 

hitting her in the face. Surace then forced her to undress, after which 

the appellant Thompson began to strike her with the chain. Both men 

continued to beat and torture the victim. They rammed a chair leg 

into the victim’s vagina, tearing the inner wall and causing internal 

 

3. Thompson requested, and this Court granted, supplemental briefing 

addressing the United States Supreme Court’s opinion in Hurst v. Florida, 136 S. 

Ct. 616, 619 (2016). However, we decline to address Thompson’s Hurst v. Florida

claim in this opinion because we remand Thompson’s case for a new evidentiary 

hearing on intellectual disability pursuant to the United States Supreme Court’s 

decision in Hall and this Court’s opinion in Oats.
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bleeding. They repeated the process with a night stick. The victim 

was tortured with lit cigarettes and lighters, and was forced to eat her 

sanitary napkin and lick spilt beer off the floor. This was followed by 

further severe beatings with the chain, club, and chair leg. The 

beatings were interrupted only when the victim was taken to a phone 

booth, where she was instructed to call her mother and request 

additional funds. After the call, the men resumed battering the victim 

in the motel room. The victim died as a result of internal bleeding and 

multiple injuries. The murder had been witnessed by Barbara Savage, 

who apparently feared equivalent treatment had she tried to leave the 

motel room.

Id. 

Thompson’s mental condition has been an issue in both his circuit court 

proceedings and his appeals before this Court. On direct appeal, this Court 

allowed Thompson to withdraw his plea and remanded for further proceedings. 

See Thompson v. State, 351 So. 2d 701 (Fla. 1977). On remand, Thompson again 

pleaded guilty and again received a death sentence for the first-degree murder.4 

The convictions and death sentence were affirmed by this Court. See Thompson, 

389 So. 2d at 200. In affirming the convictions and death sentence, this Court 

concluded in pertinent part that the trial court did not abuse its discretion in 

declining to order further psychiatric evaluations of Thompson “in view of the four 

previous reports and the failure of [Thompson]’s counsel to identify any particular 

 

4. On remand, codefendant Surace was subsequently found guilty of 

second-degree murder in a retrial in which Thompson testified and took credit for 

the entire incident. See Thompson, 389 So. 2d at 199. 
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circumstance that had caused the mental condition of [Thompson] to change since 

those prior examinations and the plea of guilty.” Id. at 199. Subsequently, this 

Court affirmed the postconviction court’s order denying relief on Thompson’s first 

postconviction motion, in which Thompson claimed that his codefendant Surace 

was the dominant actor in the murder and that Surace’s life sentence rendered the 

death sentence disproportionate. See Thompson v. State, 410 So. 2d 500 (Fla. 

1982).5 On appeal of the postconviction court’s denial of his second 

postconviction motion, at which time Thompson also petitioned this Court for a 

writ of habeas corpus, this Court vacated the death sentence and remanded for 

resentencing because harmful error occurred when the jury was instructed that it 

could only consider statutory mitigation and Thompson was not permitted to 

present nonstatutory mitigation. See Thompson v. Dugger, 515 So. 2d 173 (Fla. 

1987). Upon resentencing, the jury recommended death by a vote of seven to five, 

and the trial court again imposed the death penalty. Thompson v. State, 619 So. 2d 

261, 264 (Fla. 1993). This Court affirmed. Id. at 267. Although Thompson’s 

appeal from his 1989 resentencing did not present any issues related to his mental 

condition, this Court explained the mitigation evidence presented:

 

5. Thompson then pursued relief in the federal courts, which was denied. 

See Thompson v. Wainwright, 787 F.2d 1447 (11th Cir. 1986) (affirming denial of 

petition for writ of habeas corpus).
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Thompson presented numerous witnesses who testified in 

mitigation of his conviction, including a former church pastor, a 

church elder, a church member, an elementary school principal, and 

several family members. Thompson’s former church pastor described 

Thompson as a slow learner and a follower who did not exhibit any 

violent or aggressive behavior. A church elder described Thompson 

as someone needing to be led, while the elder’s wife described him as 

very faithful. Testifying from school records, an elementary school 

principal stated that Thompson had an IQ of seventy-five, had been 

recommended for special educational placement, and had been a 

follower, not a leader. Family members testified regarding the filthy 

home and affectionless environment in which Thompson had been 

raised. Thompson’s ex-wife and mother of his two children described 

Thompson as a loving and gentle husband who was never physically 

violent or abusive. She also described Thompson as mentally slow 

and a follower and that their marriage failed partly because of his 

alcoholism.

In an affidavit introduced by Thompson, Barbara Savage 

characterized the codefendant, Rocco Surace, as the gang-leader, who 

knew how to manipulate people. She described Thompson as a 

gullible and easygoing person, who was easily manipulated. 

However, Savage’s characterization of Thompson as a person 

dominated by Surace was contradicted by her testimony at the original 

trial.

A psychologist who examined Thompson stated that Thompson 

was a battered child and characterized him as an extremely depressed 

person. The psychologist stated that Thompson’s IQ was at the lowest 

possible level of low-average intelligence. The psychologist also

found Thompson to be brain-damaged and that his touch with reality 

was so loose and fragile that she could not tell whether Thompson was 

aware of what he was doing during the assault.

A psychiatrist testified that he found Thompson to be retarded 

and easily led and threatened by Surace. He believed Thompson to 

have been brain-damaged since childhood, possibly since birth. He 

diagnosed Thompson as having organic brain disease and suffering 

from personality and stress disorders. A neurologist also testified that 

Thompson suffered from organic brain disease.

In rebuttal, the State called the codefendant, Rocco Surace. 

Surace blamed Thompson for the attack on the victim, while 
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acknowledging that he had entered guilty pleas to the same offense. 

A psychiatrist presented by the State testified that he had evaluated 

Thompson after the incident in 1976. He found that Thompson could 

process information and that his memory was intact. The 

psychologist concluded that Thompson suffered from an inadequate 

personality disorder and a long-standing pattern of antisocial and 

impulsive behavior.

The State called another psychiatrist as an expert witness, who 

had seen Thompson in 1976, and, while he stated that “there was 

tremendous anger, rage, aggression, and diminished control with the 

involvement of alcohol and a number of drugs that were used,” he did 

not feel that Thompson’s conduct resulted from a mental disorder. He 

stated his belief that Thompson had the capacity to know what was 

right and what was wrong. A psychiatrist presented by the 

prosecution stated that he had examined Thompson in November of 

1988 and had found no indication of organic brain disease or any 

serious deficiencies in Thompson’s ability to reason, understand, or 

know right from wrong. He also stated that he did not believe that 

Thompson acted under the influence of extreme mental or emotional 

disturbance or that Thompson’s capacity to appreciate the criminality 

of his conduct was substantially impaired. Furthermore, the 

psychiatrist stated that he did not believe Thompson acted under the 

substantial domination of another. Another psychologist presented by 

the State testified that Thompson had adequate communication skills 

and good general memory. He did not find Thompson to be overly 

susceptible to suggestion and found no evidence of major mental 

illness.

Id. at 263-64 (emphasis added). 

Thompson then filed a third postconviction motion and appealed the 

summary denial of that motion to this Court, raising eighteen claims, along with a 

petition for habeas corpus raising thirty-six claims. Thompson v. State, 759 So. 2d 

650 (Fla. 2000). In his appeal of the summary denial of his postconviction motion, 

Thompson alleged in pertinent part that he was incompetent to make a knowing, 
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intelligent, and voluntary guilty plea and that he was not competent to be executed. 

Id. at 655 n.4. In his habeas petition, he alleged in pertinent part that he was not 

competent when he pleaded guilty during his second trial, sentencing phase, and 

appeal, and that he was denied the assistance of mental health experts and counsel. 

Id. at 656 n.5. This Court affirmed the summary denial of his third postconviction 

motion and denied the petition for habeas corpus. Id. at 667-68. Specifically, this 

Court concluded that Thompson’s claim that he had been denied the assistance of 

mental health experts when he pleaded guilty was procedurally barred because this 

Court previously denied the exact claim. Id. at 657 n.6. This Court also rejected 

Thompson’s claims that his counsel was ineffective for failing to secure his right to 

the assistance of mental health professionals and that his appellate counsel was 

ineffective for failing to raise this issue on appeal. Id. at 665-66. As to 

Thompson’s claim that he is not competent to be executed, this Court determined 

that the claim was not yet ripe for review. Id. at 667 n.12. 

PROCEDURAL HISTORY AFTER ATKINS

After the United States Supreme Court rendered its decision in Atkins, 

Thompson filed a fourth postconviction motion to vacate his death sentence under 

Atkins, and our newly-adopted rule 3.203, on the ground that he is intellectually 

disabled and exempt from execution. See § 921.137, Fla. Stat. (2001); Fla. R. 

Crim. P. 3.203. The postconviction court determined that Thompson’s claim was 
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procedurally barred because the issue of intellectual disability was raised as 

mitigation and litigated in Thompson’s 1989 resentencing proceeding. 

On appeal, this Court concluded by order dated July 9, 2007, that this 

determination was in error because the evidence was presented for mitigation, not 

as evidence of intellectual disability as a bar to execution. Thompson v. State, 

Case No. SC05-279 (Fla. July 9, 2007). The order advised the trial court:

[W]e reverse the trial court’s summary denial and remand to the 

circuit court in order to allow Thompson to plead and prove the 

elements necessary to establish mental retardation, specifically 

including the threshold requirements set forth in Cherry v. State, 32 

Fla. L. Weekly S151 (Fla. April 12, 2007). See also, section 

921.137(1), Fla. Stat.; Fla. R. Crim. P. 3.203(c) & (e). Any motion 

filed in conformance with this Order shall be filed in the Circuit Court 

within thirty (30) days of the date of this Order. The trial court shall 

proceed in an expedited manner, and any evidentiary hearing must be 

held and an order entered within ninety (90) days of the date of this 

order. It is so ordered. 

Id.

On August 8, 2007, Thompson filed his fifth postconviction motion, 

pursuant to this Court’s July 2007 order. Thompson again raised the claim that 

Atkins, section 921.137, Florida Statutes, and Florida Rule of Criminal Procedure 

3.203, prohibit Thompson’s execution because he is intellectually disabled.6 The

 

6. Thompson also raised three additional claims: (1) executing Thompson 

after thirty-one years on death row, particularly in light of his mental deficiencies, 

violates the Eighth and Fourteenth Amendments to the United States Constitution; 

(2) lethal injection violates the Eighth Amendment; and, (3) the September 17, 

2006, American Bar Association Report evaluating the death penalty in Florida 
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postconviction court held a status conference on August 15, 2007, and then held a 

case management conference/Huff7 hearing on August 22, 2007. At the Huff

hearing, the State responded to Thompson’s intellectual disability claims, arguing 

that because Thompson failed to plead the elements of his intellectual disability 

claim in accordance with Cherry, the claim should be summarily denied. On 

August 27, 2007, the postconviction court summarily denied Thompson’s motion. 

Noting that Cherry defines intellectual disability as having an IQ below 70, the 

trial court concluded in pertinent part:

The motion filed August 8, 2007, does not allege his IQ is 

under 70. To the contrary, the motion alleges his IQ is above 70 in 

numerous places. In paragraph 8 of the motion, Defendant states his 

IQ was 75 in 1958 and that his IQ was 74 when he was in the second 

grade. Both of these scores are above 70. In paragraph 10, Defendant 

states that Dr. Dorita Marina found his IQ to be in the low average 

range. Low average is above the range of mental retardation. Low 

average is not mentally retarded.

Even if Defendant’s allegations are all taken as true, he does not 

allege the elements of mental retardation. He does not allege that his 

IQ is under 70, nor does he allege an onset before age 18, as his IQ 

was 75 in 1958 and 74 when the Defendant was in second grade. As 

he has not properly pled mental retardation, he is not entitled to a 

hearing under Fla. R. Crim. P. 3.203(e). 

(Emphasis in original).

 

constitutes newly discovered evidence that Thompson’s execution violates the 

Eighth and Fourteenth Amendments. The trial court struck these claims as 

exceeding the scope of the remand and, on appeal, this Court summarily denied 

these claims as without merit. Thompson v. State, Case No. SC07-2000 (Fla. Feb. 

27, 2009).

7. Huff v. State, 622 So. 2d 982 (Fla. 1993). 
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On appeal, this Court remanded for an evidentiary hearing by order dated 

February 27, 2009. In its order, this Court instructed the postconviction court to 

consider the requirements set forth in Cherry:

Having reviewed the record in this case, including all prior 

proceedings, we reverse and remand for an evidentiary hearing on 

Thompson’s mental retardation claim. In making a determination of 

whether Thompson meets the requirements of mental retardation, the 

trial court shall consider the requirements set forth in Cherry v. State, 

959 So. 2d 702 (Fla. 2007):

[The defendant] must establish that he has significantly 

subaverage general intellectual functioning. If 

significantly subaverage general intellectual functioning 

is established, [the defendant] must also establish that 

this significantly subaverage general intellectual 

functioning exists with deficits in adaptive behavior. 

Finally, he must establish that the significantly 

subaverage general intellectual functioning and deficits 

in adaptive behavior manifested before the age of 

eighteen.

Id. at 711. We express no opinion on the merits of his claim of mental 

retardation. 

Thompson v. State, 3 So. 3d 1237, 1238 (Fla. 2009).8 

On remand, the circuit court held an evidentiary hearing on April 13, 2009, 

and April 27, 2009. Thompson called three witnesses: (1) William Weaver, 

Thompson’s eighth-grade teacher, (2) Dr. Faye Sultan, a psychologist retained by 

 

8. The term “intellectual disability” will now be used in place of “mental 

retardation.” See Fla. R. Crim. P. 3.203.
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Thompson to evaluate him for intellectual disability, and (3) Dr. Stephen 

Greenspan, a psychologist retained by Thompson to review the records of 

Thompson’s mental testing, inform the court about proper procedures for 

evaluating intellectual disability, and testify regarding whether these procedures 

were followed in Thompson’s case. The State called one witness: Dr. Greg 

Prichard, a psychologist retained by the State to evaluate Thompson for intellectual 

disability. 

Weaver testified that Thompson struggled as a student, stating that 

Thompson was “the most academically challenged child I had.” Weaver further 

testified that Thompson had difficulty performing school work, suffered from a 

speech impediment, had poor motor skills, and was clumsy. Weaver also reviewed 

Thompson’s school records, which indicated IQ scores of 75 (1958), 74 (1959), 

74 (1961), 79 (1963), 73 (1966), and 70 (1968). Weaver also testified that 

Thompson qualified as “educable mentally retarded,” wanted to please, and was an 

absolute follower. 

Dr. Faye Sultan, qualified as an expert in forensic psychology by the trial 

court, opined that Thompson was intellectually disabled. Dr. Sultan administered 

the WAIS-IV IQ test on March 20, 2009, with four relevant sub-tests. Thompson 

scored 83 on verbal comprehension, 81 on perceptual reasoning, 77 on working 

memory, and 56 on processing speed. Based on these data, Dr. Sultan concluded 
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that Thompson’s full-scale IQ score fell in a range between 68 and 76 at a 95% 

confidence interval. The actual full-range IQ score calculated by Dr. Sultan was 

71.

Dr. Sultan also evaluated Thompson’s adaptive functioning by consulting 

school records and interviewing witnesses who knew Thompson before his 

incarceration, including Thompson’s mother and wife. Based on this information, 

Dr. Sultan concluded that Thompson manifested adaptive behavior deficits, and 

that these deficits manifested before the age of 18. Dr. Sultan viewed these 

findings as support for her conclusion that Thompson was intellectually disabled. 

The State then called its witness, Dr. Greg Prichard, who was qualified as an 

expert in forensic psychology. Dr. Prichard administered the Stanford-Binet 5 IQ 

test9to Thompson on April 6, 2009, with five relevant sub-tests. Thompson scored 

85 on fluid reasoning, 91 on knowledge, 86 on quantitative reasoning, 100 on 

visual-spatial, and 86 on working memory. Based on these data, Dr. Prichard 

calculated Thompson’s non-verbal IQ as 86, verbal IQ as 91, and full-scale IQ as 

88. After noting that this full-scale IQ is consistent with earlier IQ scores obtained 

 

9. Dr. Prichard administered the Stanford-Binet 5 test, rather than the 

WAIS-IV test, due to concern for the “practice effect.” The practice effect causes 

an individual’s IQ scores to rise if that individual was administered the same IQ 

test within one year. According to Dr. Prichard, the Stanford-Binet 5 and WAISIV measure the same underlying attribute (IQ), but “go about it in very different 

ways,” thus negating the practice effect. 
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by Thompson,10 Dr. Prichard opined that Thompson was not intellectually 

disabled. Dr. Prichard did not perform a formal adaptive functioning evaluation, 

but based on “common-sense,” his interactions with Thompson, and his review of 

Thompson’s records, Dr. Prichard opined that Thompson’s ability to enlist in the 

Marines, obtain his GED, and work as a security guard, cook, roofer, and truck 

driver is consistent with an absence of intellectual disability.

Dr. Prichard further opined that although there was no problem with the raw 

data obtained by Dr. Sultan, Dr. Sultan’s diagnosis of intellectual disability was 

inappropriate, because Thompson’s full-scale IQ score was only pulled down by a 

single outlying score on the processing speed sub-test. According to Dr. Prichard, 

this indicated a possible learning disability or attention deficit issue, not 

intellectual disability.

Finally, Thompson called Dr. Stephen Greenspan, who was qualified as an 

expert witness on intellectual disability and psychology. However, Dr. Greenspan 

testified that he never actually evaluated Thompson, and thus could not diagnose 

Thompson as intellectually disabled. The trial court precluded Dr. Greenspan from 

testifying on the basis that he had never actually evaluated Thompson, and the trial 

court did not consider his opinion regarding the issue of Thompson’s intellectual 

 

10. Thompson received an IQ score of 85 in 1987 and 82 in 1988. 
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disability. According to the trial court, allowing Dr. Greenspan’s testimony would 

constitute buttressing another expert’s opinion. 

The trial court did, however, permit Thompson’s counsel to proffer the 

intended content of Dr. Greenspan’s testimony. According to counsel, Dr. 

Greenspan would have opined that Dr. Sultan’s methodology “was more supported 

by the facts and data than [that of] Dr. Prichard.” Further, Dr. Greenspan would 

have testified that Dr. Prichard did not do a complete evaluation, did not take the 

“practice effect” into account, and did not correctly use the applicable professional 

guidelines.

The circuit court issued an order on May 21, 2009, denying Thompson’s 

motion for relief. The circuit court concluded that Thompson “failed to prove by 

clear and convincing evidence that he is [intellectually disabled].” The circuit 

court relied heavily on this Court’s bright-line cutoff score of 70, established in 

Cherry, noting that even the defense expert’s examination of Thompson yielded an 

IQ of 71, “which is above the threshold of 70.” The court also concluded that 

because of the IQ scores above 70 collected throughout Thompson’s childhood, 

“[the defense expert’s] opinion takes in less than the whole picture, only a small 

part of it.” The court also rejected Thompson’s argument that Cherry should be 

rejected as wrongly decided.
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Thompson appealed. On appeal, this Court affirmed the order of the circuit 

court, stating: 

Having reviewed the full record in this case and the circuit court’s 

factual findings, we hold that there is competent, substantial evidence 

to support the circuit court’s factual findings that Thompson is not 

mentally retarded, based on this Court’s definition of the term as set 

forth in Cherry. In fact, Thompson’s full-scale IQ scores on 

standardized tests administered from 1987 through 2009 were 

generally over 80: in 1987, Dr. Carbonnel administered the Wechsler 

Adult Intelligence Scale (WAIS)-Revised Edition, where Thompson’s 

full-scale IQ was scored as 85 (Verbal Performance IQ: 87; 

Performance IQ: 84); in 1988, Dr. Marina administered the WAISRevised Edition, where Thompson’s full-scale IQ was scored as 82 

(Verbal IQ: 85; Performance IQ: 80); in 2009, Dr. Sultan administered 

the WAIS-Fourth Edition, where Thompson’s full-scale IQ was 

scored as 71 (Verbal Comprehension: 83; Perceptual Reasoning: 81; 

Working Memory: 77; Processing Speed: 56); and also in 2009, Dr. 

Prichard administered the Stanford-Binet-Fifth Edition, where 

Thompson’s full-scale IQ was scored as 88 (Verbal IQ: 91; NonVerbal IQ: 86).

Thompson v. State, 41 So. 3d 219, 2010 WL 1851473, at *1 (Fla. 2010).

On May 26, 2015, Thompson filed his seventh motion for postconviction 

relief, the motion at issue in this case, in the circuit court, raising one issue: that 

Thompson’s death sentence violated the Eighth and Fourteenth Amendments 

pursuant to Atkins, 536 U.S. 304, and Hall, 134 S. Ct. 1986. In that motion,

Thompson argued that he was intellectually disabled and therefore ineligible for 

execution pursuant to Atkins and Hall. Thompson claimed that his 2009 initial 

hearing on intellectual disability was not a full and fair hearing because he could 

not put forth a below-70 IQ score and because the trial court was relying on this 
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Court’s decision in Cherry. Thompson asserted that even though his IQ scores 

may have been higher than 70, when considered together with his deficits in 

adaptive functioning, he could actually meet the definition of intellectual disability. 

Moreover, Thompson argued, it was clear that the circuit court did not consider the 

two other prongs of the intellectual disability test, because while the court spent 

more than four pages of its order explaining how Thompson failed to prove the 

first prong, its only mention of prongs two and three was one paragraph on the last 

page of the order. Finally, Thompson argued that under a Witt analysis, Hall

should be retroactively applied to his case. 

After a short hearing, at which no evidence was presented, the circuit court 

issued an order summarily denying Thompson’s motion, stating that Hall did not 

create a new right and only required that courts consider the statistical error margin 

in determining IQ. The court held that Hall has no effect on individuals who were 

previously found not to be intellectually disabled because they did not have deficits 

in adaptive functioning or onset of intellectual disability prior to the age of 18. 

The court reasoned that it was sufficient under Hall that Thompson was afforded a 

full and complete evidentiary hearing in 2009 and had the opportunity to present 

evidence of intellectual functioning, deficits in adaptive functioning, and onset 

prior to the age of 18. 
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Because Thompson’s IQ scores were generally over 80, and Hall only 

required courts to look at IQ scores of 75 and below, Thompson did not meet the 

first prong of the intellectual disability test. In finding that Thompson also failed 

to prove deficits in adaptive functioning, the court noted the testimony of the 

state’s expert at the evidentiary hearing that Thompson was able to get into the 

military and work as a security guard. Finally, the court found that Thompson also 

failed to show onset before the age of eighteen because of the above factors. 

Thompson appealed.

ANALYSIS

It is clear that Thompson’s previous hearing on intellectual disability was 

tainted by the bright-line cutoff of 70 for IQ scores established by this Court in 

Cherry, which was abrogated by Hall. By order dated February 27, 2009, this 

Court held that Thompson was entitled to an evidentiary hearing regarding his 

intellectual disability claim. Thompson v. State, 3 So. 3d 1237 (Fla. 2009). In so 

holding, this Court stated: “In making a determination of whether Thompson 

meets the requirements of mental retardation, the trial court shall consider the 

requirements set forth in Cherry v. State, 959 So. 2d 702 (Fla. 2007) . . . .” Id. at 

1238. 

The circuit court cited Cherry numerous times in its 2009 order finding that 

Thompson had failed to prove he was intellectually disabled:
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Counsel for Defendant argued that Dr. Pritchard [State’s expert] was 

remiss for having failed to test adaptive functioning. Dr. Prichard 

explained that since the Defendant’s IQ was above 2 standard 

deviations below the mean, and all 3 prongs of the test must be met, 

there was no need to test further. “Because we find that Cherry does 

not meet this first prong of section 921.137(1) criteria, we do not 

consider the two other prongs of the mental retardation 

determination.” Cherry, 959 So. 2d at 741. 

In affirming the circuit court’s 2009 order denying Thompson’s intellectual 

disability claim, this Court stated: 

Having reviewed the full record in this case and the circuit court’s 

factual findings, we hold that there is competent, substantial evidence 

to support the circuit court’s factual findings that Thompson is not 

mentally retarded, based on this Court’s definition of the term as set 

forth in Cherry.

Thompson v. State, 41 So. 3d 219, 2010 WL 1851473, at *1. 

The circuit court summarily denied Thompson’s 2015 motion for 

postconviction relief, in which Thompson argued his right to a new intellectual 

disability hearing pursuant to Hall, stating: 

Hall v. Florida, 134 S. Ct. 1986 (2014), does not create a new right. 

The effect of the opinion is that the courts must consider the statistical 

error margin in determining IQ. It has no effect on individuals who 

were previously found not to be mentally retarded, now called 

intellectually disabled, due to a lack of deficits in adaptive 

functioning, and onset of the intellectual disability prior to the age of 

18. . . . 

In this case the Defendant was afforded a full and complete 

evidentiary hearing on the question of whether or not he is 

intellectually disabled. During the extensive two-day evidentiary 

hearing, the Defendant, through counsel, was afforded the opportunity 

to present evidence of his intellectual functioning (numerous expert 
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and non-expert witnesses), as well as evidence of any deficits in 

adaptive functioning and whether there was an onset of an intellectual 

disability prior to the age of 18.

As this Court stated in Oats, Hall did not just require that courts consider the 

statistical error margin in determining IQ, it also changed the manner in which 

intellectual disability evidence must be considered: “courts must consider all three 

prongs in determining an intellectual disability, as opposed to relying on just one 

factor as dispositive . . . because these factors are interdependent, if one of the 

prongs is relatively less strong, a finding of intellectual disability may still be 

warranted based on the strength of other prongs.” 181 So. 3d at 467-68. In Hall, 

the United States Supreme Court made clear that the assessment for intellectual 

disability is a “conjunctive and interrelated assessment.” 134 S. Ct. at 2001. 

Therefore, it is not enough that a defendant be allowed to present evidence on all 

three prongs of the intellectual disability test. 

Although Thompson did present some evidence relating to all three prongs 

of the intellectual disability test, he did not receive the type of conjunctive and 

interrelated assessment that Hall requires. Thompson has had a broad range of IQ 

scores from his childhood through adulthood. In 1958, at age 5, Thompson 

received a full-scale IQ score of 75 on the Stanford-Binet test, in 1961, at age 8, he 

received a full-scale IQ score of 74 on the same test. In 1987, Thompson was 
- 22 -

found to have a full-scale IQ score of 85 on the WAIS-R test, and in 1988 he 

received a full-scale IQ score of 82 on the same test. 

Most recently, in 2009, in preparation for his initial hearing on intellectual 

disability, Thompson received a full-scale IQ score of 71 from the defense expert, 

and a full-scale IQ score of 88 from the State expert, on the WAIS-IV and 

Stanford-Binet tests, respectively. The trial judge could have determined the 

defense expert—who, after assessing Thompson to have an full-scale IQ score of 

71 and finding significant deficits in adaptive functioning, expressed his opinion 

that Thompson was intellectually disabled—was credible, but was bound by 

Cherry’s bright-line cutoff of 70. As the circuit court stated: “[Thompson’s] own 

expert, Dr. Sultan testified that his IQ is 71, which is above the threshold of 70.” 

At his initial intellectual disability hearing, Thompson attempted to

introduce the testimony of intelligence testing expert, Dr. Greenspan, in the hope

that the expert could more fully explain the range of Thompson’s IQ scores in 

relation to his adaptive functioning, including how significant deficits in adaptive 

functioning can affect a full-scale IQ score. Thompson proffered that this evidence 

could have been used to counteract the seemingly high full-scale IQ score of 88 

found by the State’s expert, who admittedly never tested Thompson’s adaptive 

functioning nor considered that information because of the bright-line cutoff of 70 
- 23 -

announced in Cherry. However, this expert was excluded by the circuit court

because he had not personally examined Thompson.

Simply put, it is impossible to know the true effect of this Court’s holding in 

Cherry on the circuit court’s review of the evidence presented at Thompson’s 

intellectual disability hearing, particularly on Thompson’s range of IQ scores from 

71-88. What is clear is that this Court instructed the circuit court to conduct 

Thompson’s intellectual disability hearing pursuant to Cherry, a case that has since 

been abrogated by the United States Supreme Court in Hall. The circuit court took 

Cherry into consideration at Thompson’s intellectual disability hearing and in 

denying Thompson’s intellectual disability claim, and this Court relied on Cherry

to affirm the circuit court’s order. Because of this reliance on Cherry’s bright-line 

cutoff of 70 for IQ scores, Thompson has yet to have “a fair opportunity to show 

that the Constitution prohibits [his] execution.” Hall, 134 S. Ct. at 2001.

CONCLUSION

Accordingly, we reverse and remand Thompson’s case back to the circuit 

court for a new evidentiary hearing regarding intellectual disability, to be 

conducted pursuant to the United States Supreme Court’s holding in Hall, and this 

Court’s holding in Oats.

It is so ordered.
- 24 -

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

CANADY, J., dissenting.

For the reasons I have explained in my dissent in Walls v. State, No. SC15-

1449, 2016 WL 6137287 (Fla. Oct. 20, 2016) (Canady, J., dissenting), I have

concluded that Hall v. Florida, 134 S. Ct. 1986 (2014), should not be given

retroactive effect. I would therefore deny Thompson relief.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Miami-Dade County, 

Marisa Tinkler-Mendez, Judge - Case No. 131976CF003350B000XX

Marie-Louise Samuels Parmer, Special Assistant, Michael Chance Meyer, and 

Brittney Nicole Lacy, Staff Attorneys, Capital Collateral Regional Counsel –

South, Fort Lauderdale, Florida, 

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Marilyn Muir 

Beccue, Assistant Attorney General, Tampa, Florida,

for Appellee