Supreme Court of Florida
____________
No. SC15-1441
____________
LEONARDO FRANQUI,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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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 motions to vacate judgments of conviction and sentence
under Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction
pursuant to article V, section 3(b)(1), of the Florida Constitution. Franqui contends
he is entitled to an evidentiary hearing on his claim of intellectual disability1
pursuant to the decision of the United States Supreme Court in Hall v. Florida, 134
S. Ct. 1986 (2014). 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 sentenced 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, 1190-91 (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 this claim at the
present time.
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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, Franqui 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 retardation” 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.
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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). Based 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 before 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 significantly 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 714.
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-
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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 report 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 between 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 difficulties 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 family 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. Suarez 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.
Franqui filed a motion asking the circuit court to declare unconstitutional
this Court’s interpretation in Cherry of intellectual disability on the basis that it
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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 recognized that without a declaration of unconstitutionality, the
circuit court would be required to deny his claim under Cherry.
During a status hearing, counsel for Franqui stated that while experts could
testify on the adaptive deficits prong of intellectual 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. During 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 reports. The 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 Cherry 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.
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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 was 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, stating:
[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.
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or the 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 found
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 demonstrate that
he is mentally retarded under Florida law.
Franqui v. State, 118 So. 3d 807, 2013 WL 2211675 *2 (Fla. 2013).
The Present Cases
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 taken 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
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.”). The Supreme
Court further noted that a person with an IQ score over 70 may have such severe
adaptive deficits that his actual functioning is comparable to someone with a lower
IQ score. See id. at 2001. Therefore, the Supreme Court concluded that the
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determination of intellectual disability must be a “conjunctive and interrelated
assessment” and ultimately held 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 postconviction relief in his capital cases
contending that this Court’s prior rejections of his claim were based upon Cherry,
an interpretation of the intellectual disability statute which the Supreme Court
found unconstitutional in Hall. Franqui asserted that he was entitled to an
additional evidentiary hearing on his claim. As previously discussed, the circuit
court summarily denied both motions.5 In the Hialeah case, the court concluded
that Hall has “no effect on the individuals who were previously found not to be . . .
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.
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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.
Block-Garfield from the Hialeah case.
These appeals follow.
ANALYSIS
“Because 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. State, 8 So. 3d 1123, 1127 (Fla. 2009). As a preliminary
matter, in Walls v. State, 41 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, at issue in these 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 must be afforded the opportunity to present
evidence of intellectual disability, “including deficits in adaptive functioning over
his lifetime.” 134 S. Ct. at 2001. See also Oats v. State, 181 So. 3d 457, 467-68
(Fla. 2015) (noting that pursuant to Hall, “courts must consider all three prongs in
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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 intellectual disability may still be warranted
based on 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 evidentiary hearing on his claim of intellectual disability,
but he asserts that an additional hearing is required so that the claim can be
reviewed within the parameters of Hall and in light of the fact that Cherry was
abrogated in that decision. We agree.
The 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 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
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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
second and third prongs need not be addressed. See Cherry, 959 So. 2d at 713-14.
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 intellectual disability due to the fact that none of his scores on the
approved tests was 70 or below. Counsel for Franqui articulated the belief that
reaching the second and third prongs of intellectual disability would be futile
because of Cherry. As previously discussed, counsel 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 complete 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 brief and relied on Dr. Block-Garfield’s discussion of
adaptive deficits, which was also very brief:
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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 impulsive 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 WAIS and Stanford-
Binet tests was below 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
the case, then Franqui did not receive the “holistic” evaluation of his claim that he
is entitled to under Hall. Requiring the circuit court to hold a second evidentiary
hearing will afford Franqui a full opportunity to present evidence in support of his
intellectual disability claims.
CONCLUSION
Based upon the foregoing, we reverse the circuit court’s summary denials in
the Hialeah and North Miami cases and remand for the court to conduct a single
evidentiary hearing on Franqui’s claims 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. Counsel for Franqui agree that only one evidentiary hearing is necessary
to resolve this claim in both cases.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
Appeals from the Circuit Court in and for Miami-Dade County,
Stanford Blake, Judge - Case Nos. 131992CF006089B000XX &
131992CF002141B000XX
Todd Gerald Scher of the Law Office of Todd G. Scher, P.L., Dania Beach,
Florida; and Martin J. McClain 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
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