# Supreme Court of Florida

____________ No. SC15

- 1441

____________ LEONARDO FRANQUI, Appellant,

vs. STATE OF FLORIDA, Appellee.

____________ No. SC15

- 1630

____________ LEONARDO FRANQUI , Appellant,

vs. STATE OF FLORIDA , Appellee. [January 26, 2017]
PER CURIAM. In these consolidated appeals, Leonardo Franqui challenges the summary denial of his successive motion s to vacate judgments of conviction and sentence
under Florid a Rule of Criminal Procedure 3.851. T his Court has jurisdiction- 2

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pursuant to article V, section 3(b)(1), of the Florida Constitution. Franqui contends he is entitled to an evidentiary hearing o n his claim of intellectual disability 1 pursuant to the decisi on of the United States Supreme Court in Hall v. Florida , 134
S. Ct. 1986 (201 4 ). For the reasons discussed below, we agree and remand both cases to the circuit court for a single evidentiary hearing. 2

FACTS AND PROCEDURAL BACKGROUND Franqui was sentence d to death for the 1991 murder of Raul Lopez. See Franqui v. State , 699 So. 2d 1312, 1316 (Fla. 1997) (the Hialeah case ). Franqui was separately sentenced to death for the 1992 murder of law enforcement officer
Steven Bauer

. See Franqui v. State , 804 So. 2d 1185, 11 90

- 91 (Fla. 2001) (the

1

. The term originally used in these proceedings was “mentally retarded.” This terminology has been changed to “intellectually disabled,” as recognized in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). Both the Florida Statutes and the Florida Rules of Criminal Procedure have been modified to conform to the change in terminology. Accordingly, throughout this opinion, we use the term “intellectually disabled.” 2 . Franqui also asserts that he is entitled to relief from his death sentences based upon the decisions in Hurst v. Florida , 136 S. Ct. 616 (2016) , and Hurst v. State , 202 So. 3d 40 (Fla. 2016). Because we are remanding Franqui’s cases for an evidentiary hearing on intellectual disability, we decline to address t his claim at the present time

.- 3

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North Miami case )

. 3 We affirmed both sentences. See Franqui , 699 So. 2d at 1329; Franqui , 804 So. 2d at 1199. The Hialeah Case During the initial postconviction proceedings in the Hialeah case, Franqui alleged in a supplement that he was intellectually disabled and, therefore, could not be executed pursuant to Atkins v. Virginia , 536 U.S. 304 (2002). See Franqui v.
State , 59 So. 3d 82, 89

- 90 (Fla. 2011). After the circuit court denied postconviction relief , Franq ui appealed; however, because the lower court had failed to rule upon the intellectual disability claim, this Court relinquished jurisdiction so that it could be addressed. See id. at 90. Thereafter, the circuit court summarily denied the claim. See id. After the case was returned, this Court reversed the summary denial and again relinquished jurisdiction with directions that an evidentiary hearing be held. See Franqui v. State , 14 So. 3d 238, 239 (Fla. 2009). We directed the lower tribunal to consider the requirements delineated in Cherry v. State , 959 So. 2d 702 (Fla. 2007), for an intellectual disability determination under the applicable statute, which provided:

As used in this section, the term “mental retard ation” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during

3 . For ease of understanding, we refer to each case by the location where the murder occurred. The Hialeah case is the subject of case number SC15

- 1441, and the North Miami case is the subject of case number SC15

- 1630.- 4

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the period from conception to age 18. The term “significantly subaverage general intellectual functioning ,” for the purpose of this section, means performance that is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the Agency for Persons with Disabilities. The term “adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community. § 921.137(1), Fla. Stat. (2009). Base d upon this language, we explained that [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 befo re the age of eighteen. Franqui , 14 So. 3d at 239 (alterations in original) (quoting Cherry , 959 So. 2d at 711). In Cherry , 959 So. 2d at 712

- 13, this Court held that a strict cutoff IQ score of 70 is required for a defendant to establish the significantl y subaverage general intellectual functioning prong of intellectual disability. Under Cherry , where a defendant could not establish that he has an IQ of 70 or below, the court need not
consider the remaining two prongs of the determination. See id. at 71 4. Upon relinquishment, the circuit court appointed Dr. Enrique Suarez to evaluate Franqui for intellectual disability. Franqui subsequently notified the court that in 2003 , Dr. Trudy Block

- Garfield had conducted testing on Franqui at the request of Franqui’s prior collateral counsel. She determined that Franqui’s full

-- 5

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scale IQ score on the Wechsler Adult Intelligence Scale

— Third Edition (WAIS

III) was 75, and his composite score on the Stanford

- Binet Intelligence Scale was 76. According to the repo rt of Dr. Block

- Garfield, “the DSM

- IV does not consider an IQ of 75 as being in the mentally retarded range, rather it is in the Borderline range of functioning.” In Dr. Block

- Garfield’s opinion, it was highly likely that Franqui’s true IQ score fell betw een 71 and 80. Her report also touched upon adaptive behavior: Apart from actual IQ, there is also an adaptive level of functioning that must be considered. Mr. Franqui’s functioning at the time of his arrest was certainly somewhat impaired. He had diff iculties in maintaining a job, but the likelihood that this was due to an inability to function is somewhat limited. Rather this may have been attributable to his immaturity and general impulsive behavior. Certainly, he was in some fashion supporting a f amily which could not be accomplished by an individual who is mentally retarded. Immaturity was a factor and this still seems to be the case to some extent today. Dr. Suarez’s testing revealed a full

- scale IQ score of 75 on the WAIS

- IV. However, Dr. Suar ez administered five symptom validity tests to determine if Franqui was giving his best efforts. He concluded that Franqui’s scores indicated malingering with the intent to perform extremely poorly on the tests administered and strongly suggested that the score on the WAIS

- IV underestimated Franqui’s
actual abilities.
Fra nqui filed a motion asking the circuit court to declare unconstitutional this Court’s interpretation in Cherry of i ntellectual disability on the basis that it- 6

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violates Atkins . In the motion, he acknowledged that the circuit court was “bound by the Florida Supreme Court’s decision in Cherry and that, under the analysis of Cherry , he cannot meet the first prong of the mental retardation test as a matter of law.” He further rec ognize d that without a declaration of unconstitutionality, the circuit court would be required to deny his claim under Cherry

. During a status hearing, c ounsel for Franqui stated that while experts could testify on the adaptive deficits prong of intellec tual disability , “if you don’t meet [the IQ] prong, that’s the end of the story, that’s where we find ourselves now.”
The circuit court denied Franqui’s motion to declare the Court’s interpretation in Cherry of intellectual disability unconstitutional. D uring the evidentiary hearing, the parties stipulated into evidence the reports of Dr. Block

- Garfield and
Dr. Suarez and also stipulated to the fact that if these experts were called to testify, they would testify consistently with the contents of their re ports. T he circuit court subsequently denied Franqui’s Atkins claim. Upon return of the case, Franqui asked this Court to revisit the decision in Cherry and also that of Nixon v. State , 2 So. 3d 137 (Fla. 2009), which reached the

same conclusion as Cher ry on the strict cutoff IQ score of 70. See Franqui , 59 So. 3d at 92. We affirmed the denial of the intellectual disability claim and rejected Franqui’s assertion that our interpretation of Atkins was unconstitutional. See id. at 94.- 7

- The North Miami Case In a successive postconviction motion filed in the North Miami case , Franqui similarly contended that his death sentence violates Atkins

. Franqui asserted , in part, that Dr. Jethro Toomer testified during the trial in the Hialeah

case that Franqui w as intellectually disabled based upon an IQ score of less than
60. 4 The State attached to its response to the motion the evaluations of Dr. Block

Garfield and Dr. Suarez from the Hialeah case

. After conducting a case management hearing, the circuit court summarily denied the successive motion. The court found that the Atkins claim was time

- barred, and also that the issue of intellectual disability had been litigated and resolved adversely to Franqui in the Hialeah case. As to the latter conclusion, the circuit court stated that “ [the] Defendant cannot be mentally retarded in one case and not in the other, as that would defy the definition of mental retardation.” On appeal, this Court affirmed the denial of Franqui’s intellectual disability
claim , stati ng : [T] he only IQ tests that are acceptable for purposes of proving mental retardation are the Wechsler Intelligence Scale and the Stanford

- Binet Intelligence Scale. See § 921.137(1), Fla. Stat.; Fla. R. Crim. P. 3.203(b); Fla. Admin. Code 65G

– 4.011. Here, Franqui alleged that his IQ score was under 70 based on a report prepared in 1993, but the test utilized to measure his IQ was not the Wechsler Intelligence Scale

4

. Dr. Toomer also administered to Franqui the WAIS

- Revised in 1993, and Franqui’s full

- scale IQ score on that test was 83. See Franqui , 59 So. 3d at 91.- 8

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or t he Stanford

- Binet Intelligence Scale. His scores on the acceptable IQ tests were above 70. See Franqui , 59 So. 3d at 92 (finding, based on the same evidence presented here, that the circuit court had competent, substantial evidence

— two separate doctors f

ound Franqui’s IQ was above 75 on the rule

- approved psychological examinations

—

to find that Franqui is not mentally retarded). In addition, he did not plead whether the mental retardation manifested before he was 18 years of age. Thus, Franqui cannot dem onstrate that he is mentally retarded under Florida law. Franqui v. State , 118 So. 3d 807 , 2013 WL 2211675 *2 (Fla. 2013). The Present Case s In 2014, the United States Supreme Court held that this Court’s interpretation in Cherry of Florida’s intellectual disability statute was unconstitutional because it created an unacceptable risk that intellectually disabled individuals would be executed. See Hall , 134 S. Ct. at 1990, 1994 . The Supreme Court held that the standard error of measurement (SEM) must be t aken into account in determining whether an individual meets the first prong of intellectual disability. See id. at 2001 (“[I]n using these scores to assess a defendant’s eligibility for the death penalty, a State must afford these test scores the same
st udied 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.”). The Supreme
Court further noted that a person with an IQ score over 70 may have such severe adaptive defici ts that his actual functioning is comp arable to someone with a lower IQ score. See id. at 2001 . Therefore, the Supreme Court concluded that the- 9

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determination of intellectual disability must be a “conjunctive and interrelated assessment” and ultimately he ld that where a defendant’s IQ score is 75 or below, he must be given the opportunity to present evidence of intellectual disability, “including deficits in adaptive functioning over his lifetime.” Id. Franqui filed successive motions for postconvictio n relief in his capital cases contending that this Court’s prior rejection s of his claim were based upon Cherry , an interpretation of the intellectual disability statute which the Supreme Court found unconstitutional in Hall

. Franqui assert ed that he was entitled to an additional evid entiary hearing on his claim. As previously discussed, t he circuit court summarily denied both motions. 5 I n the Hialeah case, the court concluded that Hall has “no effect on the individuals who were previously found not to b e . . . intellectually disabled [] due to a lack of deficits in adaptive functioning. ” The court noted that, even if Franqui’s IQ score satisfied the first prong of intellectual disability after taking the SEM into account, Dr. Block

- Garfield’s report did not find deficits in adaptive functioning. The circuit court then stated: His prior motion was denied by this court for failure to meet any of the prongs. IQ was only one of [ the ] factors considered, as noted by the prior order. Defendant had a hearing and an opportunity to present evidence on all 3 prongs. His own expert did not find deficits in adaptive functioning, as he supported his family. Defendant also

5 . The same judge presided over both cases.- 10

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failed to meet the third prong. He is not entitled to another evidentiary hearing. In the North Miami case, the circuit court concluded that Hall did not create a new right to bring a claim of intellectual disability. The court also held that Franqui’s
motion was time

- barred. The court attached to its denial order the report of Dr. Blo ck

- Garfield from the Hialeah case. These appeals follow. ANALYSIS “B ecause a postconviction court’s decision whether to grant an evidentiary hearing on a rule 3.851 motion is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review.” Marek v. Sta te , 8 So. 3d 1123, 1127 (Fla. 2009). As a preliminary
matter, in Walls v. State , 4 1 Fla. L. Weekly S466 (Fla. Oct. 20, 2016), we held that the Supreme Court’s decision in Hall is retroactive. Therefore, Hall is applicable to Franqui. Accordingly, a t iss ue in the se cases is whether the circuit court should have granted Franqui an evidentiary hearing on his intellectual disability claim based upon the holding in Hall that where a defendant’s IQ score is 75 or below
after taking into account the SEM, he mus t be afforded the opportunity to present evidence of intellectual disability, “including deficits in adaptive functioning over his lifetime.” 134 S. Ct. at 2001

. S ee also Oats v. State , 181 So. 3d 457 , 467

- 68 ( Fla. 2015) ( noting that pursuant to Hall , “ courts must consider all three prongs in- 11

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determining an intellectual disability, as opposed to relying on just one factor as dispositive . . . [B] ecause these factors are interdependent, if one of the prongs is relatively less strong, a finding of intellec tual disability may still be warranted based o n the strength of other prongs. ”). In the Hialeah case, Franqui obtained a range of full

- scale IQ scores from qualifying tests . Those scores are: 75 on the WAIS

- IV conducted by Dr. Suarez in 2009 , 75 and 76 on the WAIS

- III and the Stanford

- Binet conducted by Dr. Block

Garfield in 2003 , and 83 on the WAIS

- Revised conducted by Dr. Toomer in 1993. It is not disputed that during his initial postconviction proceedings in the Hialeah

case , Franqui received an evid entiary hearing on his claim of intellectual disability , but he asserts that an additional hearing is required so that the claim can be

r eviewed within the parameters of Hall and in light of the fact that Cherry was abrogated in that decision

. We agree.
T he rationale for granting a second evidentiary hearing is articulated in Walls : [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. Also, 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 a t 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- 12

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score cutoff rule in mind , we remand for the circuit court to conduct a new evidentiary hearing as to Walls’ claim of intellectual disability. 41 Fla. L. Weekly at S469 (emphasis added). In Franqui , 14 So. 3d at 239 , we specifically instructed the circuit court in the Hialeah case to hold an evidentiary hearing pursuant to Cherry , which implemented a strict cutoff IQ score of 70 and also held that if the first prong of intellectual disability was not satisfied, the

s econd and third prongs need not be addressed. See Cherry , 959 So. 2d at 71 3

- 1 4. It appears that during the evidentiary hearing, Franqui may have significantly limited his presentation because he knew that he could not meet the first prong of intellectua l disability due to the fact that none of his scores on the
ap proved tests was 70 or below. C ounsel for Fr anqui articulated the belief that reaching the second and third prongs of intellectual disability would be futile because of Cherry

. As previously d iscussed, c ounsel stated that while experts could testify with regard to the adaptive deficits prong, “if you don’t meet [the IQ] prong, that’s the end of the story, that’s where we find ourselves now

. ” Thus, it appears that Franqui did not offer as compl ete a presentation on the second and third prongs of the intellectual disability determination as he might have under the standard articulated in Hall

. Further, the circuit court’s discussion of the adaptive deficits prong in its denial order was very brie f and relied on Dr. Block

- Garfield’s discussion of adaptive deficits, which was also very brief:- 13

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Dr. Block

- Garfield’s report also states that while his functioning at the time of arrest was impaired, it was likely due to the Defendant’s immaturity and impu lsive behavior. She further states that: “Certainly, he was in some fashion supporting a family which could not be accomplished by an individual who is mentally retarded.” Because the circuit court was aware that pursuant to Cherry , Franqui’s intellectual disability claim failed because none of his IQ scores on the WAI S and Stanford

Binet tests was be low 70, the circuit court may have determined that it was unnecessary to consider or discuss the second and third prongs in detail. If this is th e case , then Franqui did not receive the “holistic” evaluation of his claim that he
is entitled to under Hall

. R equiring the circuit court to hold a second evidentiary hearing will afford Franqui a full opportunity to present evidence in support of his
in tellectual disability claim s . CONCLUSION Based upon the foregoing , we reverse the circuit court’s summary denial s in the Hialeah and North Miami cases and remand for the court to conduct a single evidentiary hearing on Franqui’s claim s of intellectual disability. 6
It is so ordered. LABARGA, C.J., and PARIENTE, and QUINCE, JJ., and PERRY, Senior Justice, concur. LEWIS, CANADY, and POLSTON, JJ., dissent.

6 . C ounsel for Franqui agree that only one evidentia ry hearing is necessary to resolve this claim in both cases.- 14

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. Two Cases : Appeal s from the Circuit Court in and for Miami

- Dade County, Stanford Blake , Judge

- Case No s . 131992CF006089B000XX & 131992CF002141B000XX Todd Gerald Scher of the Law Office of Todd G. Scher, P.L., Dania Beach, Florida; and Martin J. McClai n of McClain & McDermott, P.A., Wilton Manors, Florida, for Appellant Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Melissa Jean Roca, Assistant Attorney General, Miami, Florida, for Appellee