Supreme Court of Florida

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No. SC15-957

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ROGER LEE CHERRY,

Petitioner,

vs.

JULIE L. JONES, etc.,

Respondent.

[December 1, 2016]

PER CURIAM.

This case is before the Court on the petition of Roger Lee Cherry for a writ 

of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the 

following reasons, we grant Cherry’s petition and remand to the circuit court for an 

evidentiary hearing on Cherry’s claim of intellectual disability.

Roger Lee Cherry was convicted of two counts of first-degree murder, after 

which a jury recommended the sentence of death by a vote of seven to five for the 

first count and nine to three for the second count. We affirmed the convictions and 

one of the death sentences but vacated the other sentence with instructions to enter 

a life sentence. Cherry v. State, 544 So. 2d 184 (Fla. 1989).
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In a 2005 evidentiary hearing, Drs. Gregory Prichard and Peter Bursten 

testified that Cherry met the criteria for intellectual disability. The experts testified 

that Cherry received a full scale IQ score of 72. The experts also found that Cherry 

met the other two prongs for establishing that he is intellectually disabled. 

Nevertheless, the circuit court denied relief, finding that Cherry did not meet the 

statutory definition of intellectual disability. We affirmed in Cherry v. State, 959 

So. 2d 702 (Fla. 2007).

Cherry asserts that we should revisit our prior decision in which the Court 

found that Cherry was not intellectually disabled under the first prong of Cherry, 

thereby precluding consideration of the remaining Atkins v. Virginia, 536 U.S. 304 

(2002), factors. Similar to the defendant in Hall v. Florida, 134 S. Ct. 1986 (2012), 

Cherry took multiple IQ tests over the course of thirty-seven years. Cherry, 959 

So. 2d at 712 n.6. Based on the new standard imposed by Hall and taking into 

account the standard error of measurement of IQ tests, we find that Cherry is 

entitled to an evidentiary hearing on the remaining prongs to establish whether he 

has an intellectual disability. See Hall, 134 S. Ct. at 1993, 2000, 2001 (stating that 

a determination of intellectual disability requires a court to “take into account the 

standard error of measurement” of IQ tests rather than implement a “rigid rule” 

characterizing intellectual disability as an IQ of 70 or below.) We therefore grant 

Cherry’s petition and remand this case to the circuit court for an evidentiary 
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hearing in accordance with Hall. See Walls v. State, 41 Fla. L. Weekly S466 (Fla. 

Oct. 20, 2016).

It is so ordered.

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

PARIENTE, J., concurs with an opinion.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

PARIENTE, J., concurring.

In 2007, this Court unanimously denied Roger Lee Cherry relief on his claim 

of intellectual disability because Cherry had a full scale IQ score of 72. Cherry v. 

State, 959 So. 2d 702 (Fla. 2007). The Court was wrong, as we have now been 

told by the United States Supreme Court in Hall v. Florida, 134 S. Ct. 1986 (2014), 

and the error is of such constitutional magnitude that the Eighth Amendment 

demands that the error be corrected. I was part of the Court in Cherry that made a 

legal error—one that could literally mean the difference between life and death. 

Yet Justice Canady, in his dissent in this case, which he elaborates on in his 

dissent in Walls v. State, 41 Fla. L. Weekly S466, 2016 WL 6137287 (Fla. Oct. 20, 

2016), states that Cherry should not get the benefit of Hall—even though the 

United States Supreme Court specifically disapproved of the bright-line IQ cutoff 

set forth in the very case involving Roger Lee Cherry: 
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In summary, every state legislature to have considered the issue 

after Atkins—save Virginia’s—and whose law has been interpreted 

by its courts has taken a position contrary to that of Florida. Indeed, 

the Florida Legislature, which passed the relevant legislation prior to 

Atkins, might well have believed that its law would not create a fixed 

cutoff at 70. The staff analysis accompanying the 2001 bill states that 

it “does not contain a set IQ level. . . . Two standard deviations from 

these tests is approximately a 70 IQ, although it can be extended up to 

75.” Fla. Senate Staff Analysis and Economic Impact Statement, 

CS/SB 238, p. 11 (Feb. 14, 2001). But the Florida Supreme Court 

interpreted the law to require a bright-line cutoff at 70, see Cherry, 

959 So. 2d, at 712-713, and the Court is bound by that interpretation.

Hall, 134 S. Ct. at 1998 (emphasis supplied).

Justice Kennedy, writing for the majority in Hall, also explained the flaw in 

looking only at IQ as conclusive evidence of intellectual disability:

It is not sound to view a single factor as dispositive of a 

conjunctive and interrelated assessment. See DSM–5, at 37 (“[A] 

person with an IQ score above 70 may have such severe adaptive 

behavior problems . . . that the person’s actual functioning is 

comparable to that of individuals with a lower IQ score”). The 

Florida statute, as interpreted by its courts, misuses IQ score on its 

own terms; and this, in turn, bars consideration of evidence that must 

be considered in determining whether a defendant in a capital case has 

intellectual disability. Florida’s rule is invalid under the 

Constitution’s Cruel and Unusual Punishments Clause.

Id. at 2001 (emphasis supplied).

And further directing that intellectual disability could not be determined by a 

number but by a consideration of all factors, including adaptive functioning, the 

Supreme Court warned:

Intellectual disability is a condition, not a number. See DSM–

5, at 37. Courts must recognize, as does the medical community, that 
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the IQ test is imprecise. This is not to say that an IQ test score is 

unhelpful. It is of considerable significance, as the medical 

community recognizes. But in using these scores to assess a 

defendant’s eligibility for the death penalty, a State must afford these 

test scores the same studied skepticism that those who design and use 

the tests do, and understand that an IQ test score represents a range 

rather than a fixed number. A State that ignores the inherent 

imprecision of these tests risks executing a person who suffers from 

intellectual disability. See APA Brief 17 (“Under the universally 

accepted clinical standards for diagnosing intellectual disability, the 

court’s determination that Mr. Hall is not intellectually disabled 

cannot be considered valid”).

Id. (emphasis supplied). 

As this Court recognized in Oats v. State, Hall changed the manner in which 

courts must consider evidence of intellectual disability. We stated that: “courts 

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

to relying on just one factor as dispositive . . . [t]hese 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.” Oats, 181 So. 3d 457, 

467-68 (Fla. 2015).

Justice demands that Roger Lee Cherry have an opportunity to establish that 

he is intellectually disabled under the standards established by the United States 

Supreme Court under the Eighth Amendment, which prohibits the execution of 

those who are, in fact, intellectually disabled. As we stated in Thompson v. State, 

SC15-1752, 2016 WL 6649950, at *1 (Fla. Nov. 10, 2016), “to fail to give [the 

defendant] the benefit of Hall, which disapproved of Cherry, would result in a 
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manifest injustice, which is an exception to the law of the case doctrine.” More 

than fundamental fairness, the risk of executing a person who is not 

constitutionally eligible for the death penalty surpasses any other considerations

that this Court looks to in attempting to ensure the even-handed administration of 

the death penalty. This principle could not be better expressed than in the words of 

Justice Kennedy writing for the majority in Hall:

The death penalty is the gravest sentence our society may 

impose. Persons facing that most severe sanction must have a fair 

opportunity to show that the Constitution prohibits their execution. 

Florida’s law contravenes our Nation’s commitment to dignity and its 

duty to teach human decency as the mark of a civilized world. The 

States are laboratories for experimentation, but those experiments may 

not deny the basic dignity the Constitution protects.

Hall, 134 S. Ct. at 2001. I concur with the majority that Cherry is entitled to a new 

evidentiary hearing pursuant to the United States Supreme Court’s decision in Hall

and our decision in Oats.

CANADY, J., dissenting.

For the reasons I have explained in my dissent in Walls v. State, 41 Fla. L.

Weekly S466, 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 Cherry relief.

POLSTON, J., concurs.
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Original Proceeding – Habeas Corpus

Linda McDermott of McClain & McDermott, P.A., Estero, Florida,

for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stacey E. Kircher, 

Assistant Attorney General, Daytona Beach, Florida, 

for Respondent