Florida/Georgia Personal Injury & Workers Compensation

...at 1990. Florida’s death penalty statute had defined “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” Fla. Stat. § 921.137....

...function prong of the mental retardation definition,” id. at 309 n.5, 122 S. Ct. at 2245 n.5. When Atkins was decided in 2002, the state of Florida already had a law prohibiting the execution of mentally retarded individuals. See Fla. Stat. § 921.137....

...iations from the mean score on a standardized intelligence test.” The Florida Supreme Court has interpreted this definition as requiring a petitioner to establish he has an IQ of 70 or below. See Jones v. State, 966 So. 2d 319, 329 (Fla. 2007). Section 921.137, however, applies only to persons sentenced to death after the effective date of the statute in 2001. Fla. Stat. § 921.137(8). Thus, as the district court noted, § 921.137 is inapplicable to Carroll, and “it is only within the context of Atkins’ mental retardation definition that this Court evaluates Petitioner’s claim.” The state trial court made factual determinations that Carroll is not mentally retarded and that he possesses an IQ of above 75....

...at 2245 n.3 (reproducing the American Association on Mental Retardation’s and the American Psychiatric Association’s definitions of mental retardation, which both state the three-criteria test for mental retardation in the conjunctive); see also Fla. Stat. § 921.137 (stating significantly subaverage general intellectual functioning must exist concurrently with deficits in adaptive behavior). Carroll further asserts his mental illness can render him “functionally mentally retarded,” as wa...

...We reject this argument for the same reasons articulated by the district court. Atkins protects only those individuals who are mentally retarded, as is evident by the third prong of the mental retardation inquiry, which requires onset by age 18. See id., 122 S. Ct. at 2245 n.3; see also Fla. Stat. § 921.137....

...is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different."). Thus, Rodriguez cannot satisfy the prejudice prong of his claim of ineffective assistance in this regard. Rodriguez also argues that section 921.137, Florida Statutes (2004), which prohibits imposition of the death sentence on mentally retarded defendants, is unconstitutional under Ring v....

...In this regard, "[b]oth the statute and our rule define mental retardation as `significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.'" Jones v. State, 966 So.2d 319, 326 (Fla.2007) (quoting § 921.137(1), Fla. Stat. (2005)). See § 921.137(1), Fla....

...Suarez and Block-Garfield, the court found that under Florida law, Franqui does not meet the test for mental retardation. In order to establish mental retardation under current Florida law and precedent, the defendant must satisfy a three-prong test for mental retardation. See § 921.137(1), Fla. Stat. (2009); Fla. R.Crim. P. 3.203; Nixon v. State, 2 So.3d 137, 141 (Fla.2009); Cherry v. State, 959 So.2d 702, 711 (Fla.2007). We have "consistently interpreted section 921.137(1) as providing that a defendant may establish mental retardation by demonstrating all three of the following factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. Thus, the lack of proof on any one of these components of mental retardation would result in the defendant not being found to suffer from mental retardation." Nixon, 2 So.3d at 142 (citations omitted). In Cherry, we held that the language of section 921.137(1) is clear and unambiguous in mandating a strict cut-off IQ score of two standard deviations from the mean score, which is exactly 70....

...t testimony must have a rational basis, such as conflict with other evidence, credibility or impeachment of the witness, or other reasons." Williams v. State, 37 So.3d 187, 204 (Fla.2010). The circuit court's task is to apply the law as set forth in section 921.137, Florida Statutes, which provides for mental retardation proceedings in capital cases; and the circuit court must also follow this Court's precedent. Jones, 966 So.2d at 327. A defendant who raises mental retardation as a bar to imposition of a death sentence carries the burden to prove mental retardation by clear and convincing evidence. See § 921.137(4), Fla....

...ion upon [their] execution of sentences." Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (quoting Ford, 477 U.S. at 416-17, 106 S.Ct. 2595). When Atkins was issued, Florida had already enacted its statute prohibiting the execution of the mentally retarded. § 921.137, Fla. Stat. (2001). Section 921.137(1), Florida Statutes (2009), which is almost identical to the 2001 version of the statute, provides in pertinent part as follows: 921.137 Imposition of the death sentence upon a defendant with mental retardation prohibited.— (1) As used in this section, the term "mental retardation" means significantly subaverage general intellectual functioning existing concurrently with defi...

...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. Cherry v. State The proper interpretation of section 921.137(1) was raised in Cherry v. State, 959 So.2d 702, 711 (Fla.2007), where the question before the Court was whether section 921.137(1) and rule 3.203 mandate a strict cut-off score of 70 or below on an approved standardized test in order to establish significantly subaverage intellectual functioning....

...osition of the death sentence on mentally retarded persons. Nixon, 2 So.3d at 142. Nixon further asserted that this Court's definition of mental retardation violates both the United States and Florida constitutions because Cherry's interpretation of section 921.137 is inconsistent with the constitutional bar on the execution of mentally retarded persons....

...urrently with limitations in two or more areas of adaptive functioning, all manifesting before age 18. Id. at 309 n. 3, 122 S.Ct. 2242. [11] Ford v. Wainwright involved insanity as a bar to the death penalty. [12] Cherry did not involve a claim that section 921.137 is unconstitutional in how it defines mental retardation....

...Walls is not entitled to relief on this claim. Mental Retardation Finally, Walls contends that the trial court improperly denied him an evidentiary hearing on his claim that he is mentally retarded and thus not eligible for the death penalty. The trial court denied a hearing based on section 921.137, Florida *1174 Statutes (2005), the statute prohibiting imposition of the death sentence on a mentally retarded defendant in Florida. By its own terms, the statute "does not apply to a defendant who was sentenced to death prior to the effective date of this act [June 12, 2001]." Id. § 921.137(8)....

...Though one defense expert determined that Wright has borderline intellectual functioning, including impairments in his frontal lobe functioning for reasoning and judgment, the expert testified that Wright *290 did not satisfy the requirements for statutory mitigation [14] or qualify as mentally retarded under section 921.137, Florida Statutes (2000)....

...n due to fetal alcohol syndrome. In that expert's opinion, Wright could not balance a checkbook, maintain a household, or keep his refrigerator stocked. However, this expert did not consider the recognized standardized intelligence tests required by section 921.137 to be the measure of mental retardation and conceded that under the statutory definition, Wright would not be considered mentally retarded....

...otional disturbance," or that (2) "the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of the law was substantially impaired," pursuant to section 921.141(6)(f). [15] Section 921.137(1) defines mental retardation for purposes of the statutory determination to be "significantly subaverage general intellectual functioning," which is "performance that is two or more standard deviations from the mean score on a standa...

...n subject to a Frye *711 analysis because that claim is procedurally barred. [5] B. Mental Retardation Claim Finally, Cherry challenges the circuit court's determination that he is not mentally retarded in accordance with the definition set forth in section 921.137(1), Florida Statutes (2002), which provides: 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 the period from conception to age 18....

...ental services, makes the 70 IQ score a bright-line cutoff. This Court notes, however, that the DSM-IV-TR recognizes IQ is more accurately reported as a range of scores, a position reflected in the staff analysis for (what was ultimately) Fla. Stat. § 921.137....

...is a universally accepted given fact and, as such, should logically be considered, among other evidence, in regard to the factual finding of whether an individual is mentally retarded. Supplemental Order at 7 (citations and footnotes omitted). Both section 921.137 and rule 3.203 provide that significantly subaverage general intellectual functioning means "performance that is two or more standard deviations from the mean score on a standardized intelligence test." One standard *713 deviation on...

...Cherry's IQ score of 72 does not fall within the statutory range for mental retardation, and thus the circuit court's determination that Cherry is not mentally retarded should be affirmed. Because we find that Cherry does not meet this first prong of the section 921.137(1) criteria, we do not consider the two other prongs of the mental retardation determination....

...al of the trial judge during the guilt phase of the trial; (I)(B) trial counsel was ineffective in failing to properly investigate and prepare in the guilt phase of the trial; (II) Morris is educable mentally retarded and his execution would violate section 921.137(2), Florida Statutes (2002); (III) Morris was deprived of his rights to due process and equal protection under the Fourteenth Amendment, as well as his rights under the Fifth, Sixth, and Eighth Amendments because the mental health exp...

...Two court-appointed, independent experts testified that Rodgers was not mentally retarded. C. The Sentencing Order and Mental Retardation Determination The trial court issued a single order addressing mental retardation and sentencing. As to mental retardation, the court concluded that Rodgers is not mentally retarded under section 921.137, Florida Statutes (2003)....

...We agree with the trial court that these objections are matters of weight, not admissibility, and do not implicate Frye. Accordingly, the court did not abuse its discretion in denying Rodgers's motion. D. The Mental Retardation Determination Rodgers presents two claims here. First, he argues that section 921.137, Florida Statutes (2003), which governs determinations of mental retardation in death-sentenced defendants, is unconstitutional under Ring v....

...2242, 153 L.Ed.2d 335 (2002)] to a jury determination of whether he is mentally retarded"); accord Rodriguez v. State, 919 So.2d 1252, 1267 (Fla.2005) (citing Arbelaez and finding "no merit to [Rodriguez's] claim regarding the constitutionality of [section 921.137]")....

...Second, Rodgers claims that the trial court erred in determining that he is not mentally retarded. Under Florida law, mental retardation means "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." *667 § 921.137(1), Fla....

...Appellant contends that the trial court should have found him deficient in adaptive functioning. "Adaptive behavior" is defined by statute as "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....

...Under Florida law, mental retardation is defined as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." Jones v. State, 966 So.2d 319, 326 (Fla. 2007) (quoting § 921.137(1), Fla....

...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....

...Further, words must be given their plain meaning and statutes should be construed to give them their full effect. Id. Both Florida law and our rule state that the exception to the death penalty applies to a defendant who "is mentally retarded" or "has mental retardation." § 921.137(2), Fla....

...Thus, the question is whether a defendant "is" mentally retarded, not whether he was. Both the statute and our rule define mental retardation as "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." § 921.137(1), Fla....

...subaverage general intellectual functioning," and further defines that term as "performance that is two or more standard deviations from the mean score on a standardized intelligence test" specified by the Department of Children and Family Services. § 921.137(1), Fla....

...Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (12) the prosecutor's comments violated Lukehart's right to a fair trial; (13) Florida's statute prohibiting the imposition of a sentence of death to be imposed on a mentally retarded defendant, section 921.137, Florida Statutes (2001), violates substantive due process because the statute does not apply retroactively; (14) the imposition of the death penalty on a mentally retarded defendant violates equal protection and due process; (15) Luk...

...ests. He stated, "There has been a tremendous amount of research ... that IQ tests tend to underestimate particularly the intelligence of African-Americans." On March 20, 2008, by a vote of ten to two, the jury recommended a death sentence. Based on section 921.137(4), Florida Statutes (2008), defense counsel moved that the trial court appoint two independent experts to evaluate whether Hodges was mentally retarded....

...not entitled to relief. B. Trial Court Determination of Mental Retardation Status Hodges challenges the trial court's determination that he is not mentally retarded and that he is thus eligible for the death penalty. "The Florida Legislature enacted section 921.137 in 2001....

...The substantially similar statute and rule require the following: [A] defendant must prove mental retardation by demonstrating: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See § 921.137(1), Fla. Stat. (2007); Fla. R.Crim. P. 3.203(b). Nixon, 2 So.3d at 141; see also Phillips, 984 So.2d at 509. The defendant has the burden to prove that he is mentally retarded by clear and convincing evidence. § 921.137(4), Fla....

...of death are contrary to the reasoning and holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (establishing that the Eighth Amendment prohibits the execution of the mentally retarded). Moreover, Nixon contended that section 921.137, Florida Statutes (2002), as interpreted in Cherry v....

...dence in the record to support his claim of mental retardation; and (6) this Court must require that the proceedings on remand be freed from several erroneous legal rulings previously made by the trial court. In 2001, the Florida Legislature enacted section 921.137, Florida Statutes (2001), which barred the imposition of a death sentence on the mentally retarded and established a method for determining which capital defendants are mentally retarded. See § 921.137, Fla....

...The following year, the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that execution of mentally retarded offenders constitutes "excessive" punishment under the Eighth Amendment. In response to Atkins and section 921.137, we promulgated Florida Rule of Criminal Procedure 3.203, which specifies the procedure for raising mental retardation as a bar to a death sentence. Pursuant to both section 921.137 and rule 3.203, a defendant must prove mental retardation by demonstrating: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See § 921.137(1), Fla....

...State, 959 So.2d 146, 149 (Fla.2007) (citing Trotter v. State, 932 So.2d 1045, 1049 (Fla.2006)). However, we review the trial court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004). *142 Cherry Decision Nixon first argues that this Court's interpretation of section 921.137 in Cherry, which requires a defendant to have an IQ score of 70 or below, violates Atkins....

...399, 106 S.Ct. 2595, 91 L.Ed. 2d 335 (1986)] with regard to insanity, `we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'") (citations omitted). This State in section 921.137(1) defines subaverage general intellectual functioning as "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....

...lates with an IQ of 70 or below."); Zack v. State, 911 So.2d 1190, 1201 (Fla.2005) (finding that to be exempt from execution under Atkins, a defendant must establish that he has an IQ of 70 or below). Nixon further asserts that our interpretation of section 921.137 in Cherry creates an irrebuttable presumption that no one with an IQ over 70 is mentally retarded....

...Nixon claims that we created an irrebuttable presumption because once we concluded that Cherry's IQ score was 72 our inquiry terminated, i.e., we did not consider the two other prongs of the mental retardation determination. See Cherry, 959 So.2d at 714. We have consistently interpreted section 921.137(1) as providing that a defendant may establish mental retardation by demonstrating all three of the following factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen....

...See, e.g., Jones, 966 So.2d at 325; Johnston, 960 So.2d at 761. Thus, the lack of proof on any one of these components of mental retardation would result in the defendant not being found to suffer from mental retardation. Nixon further asserts that our interpretation of section 921.137(1) does not provide constitutionally adequate procedures to determine mental retardation. More specifically, Nixon claims that in Cherry, we interpreted section 921.137(1) *143 to create fact-finding procedures that preclude a defendant from presenting relevant material. Nothing in Cherry or section 921.137 precludes a defendant from presenting any evidence that is germane to the issues involved in a mental retardation claim. Section 921.137(1) and rule 3.203 provide defendants with notice of the type of evidence that is relevant to the issues and that will be considered by a trial court....

...al retardation claims, Nixon is not entitled to relief on this issue. Nixon further contends that this Court's definition of mental retardation violates both the United States and Florida Constitutions because the definition of mental retardation in section 921.137, as construed in Cherry, is inconsistent with the constitutional bar on the execution of mentally retarded persons....

...form to the clinical definitions set forth in the case. See 536 U.S. at 317 n. 22, 122 S.Ct. 2242. Florida's statutory definition of mental retardation is not identical but conforms to the one outlined in Atkins. See id. at 309 n. 3, 122 S.Ct. 2242; § 921.137(1), Fla....

...This argument is yet another attack on Florida's definition of mental retardation and the trial court's application of this definition to the facts of this case. As we previously stated, the trial court followed the correct procedure in determining Nixon's claim. Section 921.137(1) sets forth the governing legal standard and rule 3.203 outlines the procedural requirements for mental retardation claims....

...The trial court did not err in reviewing the role impulsivity or suggestibility played in Nixon's crime. Confession Nixon argues the trial court erred by using his confession to find him not mentally retarded. We disagree. The trial court determined that Nixon was not mentally retarded by applying Atkins, section 921.137, rule 3.203, and this Court's precedent on mental retardation....

...Keyes' score could have resulted from Nixon's malingering, that Nixon's historical scores were consistent with Dr. Prichard's measurement of an IQ of 80, and that Dr. Keyes' approach of rescoring and averaging the current and historical scores was inappropriate and inconsistent with both the plain language of section 921.137 and this Court's precedent....

...e prongs for mental retardation. See, e.g., Cherry, 959 So.2d at 711; Fla. R.Crim. P. 3.203(e). Moreover, Nixon argues that if he bears the burden of showing his mental retardation, the appropriate standard is preponderance of the evidence. However, section 921.137(4) specifically states: At the final sentencing hearing, the court shall consider the findings of the court-appointed experts and consider the findings of any other expert which is offered by the state or the defense on the issue of whether the defendant has mental retardation....

Ariz. Rev. Stat. § 13-753 (2011); Fla. Stat. § 921.137 (2013). Although Colorado, Delaware, and Indiana

...The Court also denied Brown's petition for a writ of habeas corpus. Brown v. Moore, 800 So.2d 223 (Fla.2001). In September of 2001, Brown filed a successor motion to vacate sentence, [1] asserting that he is mentally retarded based on the definition provided in section 921.137, and hence the penalty of death must be vacated....

...affirm the decision that Brown is not mentally retarded. It is so ordered. LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ., concur. QUINCE, J., recused. NOTES [1] The motion also requested the trial court to declare a provision of section 921.137, Florida Statutes (2001), unconstitutional since section (8) of the statute stated that it was not to be applicable to defendants who were sentenced to death prior to the effective date of the act....

...adopted the statutory definition of mental retardation and recognized that Atkins applies to defendants currently on death row. See Phillips v. State, 894 So.2d 28, 39-40 (Fla.2004) (holding that one may file an Atkins claim under rule 3.203 even if section 921.137 did not exist at time of sentencing). This renders moot the claim that the statute is unconstitutional. Moreover, the trial court determined Brown's claim of mental retardation using the statutory definition. [2] Likewise, section 921.137 defines mental retardation as follows: [T]he term "mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18....

...s of personal independence and social responsibility expected of his or her age, cultural group, and community. The Agency for Persons with Disabilities shall adopt rules to specify the standardized intelligence tests as provided in this subsection. § 921.137(1), Fla....

...constitutional to execute him. Secondly, he makes an alternative argument that this claim should be remanded to the trial court for a full determination of his mental state. Lastly, Connor argues that Florida's statute concerning mental retardation, section 921.137, Florida Statutes (2005), is unconstitutional because it violates the prohibition against cruel and unusual punishment....

...To the extent Connor is claiming that he is mentally retarded, we deny this claim without prejudice to seeking any remedy he may still have available under Florida Rule of Criminal Procedure 3.203. [8] And to the extent Connor argues that the date in section 921.137 precludes some defendants from making a mental retardation claim, such an argument does not take into account the provisions of rule 3.203, which has effectively allowed all death row *868 inmates with valid mental retardation claims to file a successive 3.851 motion pursuant to the rule....

...the test’s margin of error unless he has been able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. 572 U.S. at ___, 134 S. Ct. at 2001. The Florida Supreme Court interpreted Fla. Stat. § 921.137 to provide that a prisoner sentenced to death was required to show an IQ test score of 70 or below before presenting any additional evidence of his intellectual disability....

...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. Fla. Stat. § 921.137....

...The AAMR is now known as the American Association on Intellectual and Developmental Disabilities (AAIDD). Florida’s current definition of intellectual disability tracks very closely the AAIDD’s most recent definition of intellectual disability. Compare Fla. Stat. § 921.137(1), with AAIDD, Intellectual Disability: Definition, Classification and Systems of Supports 5 (11th ed....

...We express no opinion about the merits of such a motion. II. 3.850 APPEAL Phillips raises eleven claims: (1) the trial court improperly denied his postconviction claims without an evidentiary hearing; [5] (2) resentencing counsel was ineffective for failing to argue that section 921.137, Florida Statutes (2001), prohibiting the imposition of the death sentence on mentally retarded defendants, applied to him; (3) his right to due process was violated when the trial judge denied his claim regarding public records discl...

...68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and two ineffective assistance of counsel claims concerning resentencing counsel's failure: (1) to present definitive evidence of his organic brain damage and mental retardation; and (2) to argue the application of section 921.137, Florida Statutes (2001)....

...Given that the record reflects that two mental health experts were appointed in Phillips's defense, and each performed a comprehensive mental health evaluation of Phillips and testified thereto, we also affirm the trial court's summary denial of Phillips's Ake claim. 2. Applicability of Section 921.137(1), Florida Statutes (2001) Phillips next asserts that his resentencing counsel rendered ineffective assistance for presenting insufficient evidence to show that his level of retardation met the criteria set forth in section 921.137(1), Florida Statutes (2001). [7] Resentencing counsel cannot be deemed ineffective, however, because section 921.137, the statute prohibiting the execution of mentally retarded defendants, did not even exist at the time of Phillips's resentencing *40 or subsequent direct appeal. [8] Nevertheless, we do not preclude Phillips from raising the retroactive application of section 921.137 in a subsequent proceeding....

...rule 3.203 will not resolve the ineffective assistance of counsel claim. The current statutory burden for establishing mental retardation as a bar to execution is different from the burden of establishing that counsel's performance was ineffective. Section 921.137(4), Florida Statutes (2004), requires proof of mental retardation by clear and convincing evidence....

...Claims 4(e) and 6(c) are also procedurally barred because they were raised and rejected on direct appeal. See Phillips v. State, 705 So.2d 1320 (Fla.1997). Claim 3 is facially and legally insufficient and is therefore denied. See Maharaj, 684 So.2d at 728; Holland v. State, 503 So.2d 1250, 1251 (Fla.1987). [7] Section 921.137(1) provides: 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 the period from conception to age 18....

...nal independence and social responsibility expected of his or her age, cultural group, and community. The Department of Children and Family Services shall adopt rules to specify the standardized intelligence tests as provided in this subsection. [8] Section 921.137, Florida Statutes (2001), was enacted on June 12, 2001....

...Phillips appeals that decision, raising the issues discussed below. II. ANALYSIS Phillips challenges the circuit court's determination that he is not mentally retarded in accordance with the definitions outlined in Florida Rule of Criminal Procedure 3.203 and section 921.137(1), Florida Statutes (2006). The Florida Legislature enacted section 921.137 in 2001. It exempts the mentally retarded from the death penalty and establishes a method for determining whether capital defendants are mentally retarded. See § 921.137, Fla....

...Pursuant to both the statute and the rule, a defendant must prove mental retardation by demonstrating: (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) which has manifested during the period from conception to age 18. § 921.137(1), Fla....

...Phillips claims that because there is a measurement error of about five points in assessing IQ, mental retardation can be diagnosed in individuals with IQs ranging from 65 to 75. We disagree, and affirm the trial court's finding that Phillips did not satisfy the first prong of the mental retardation definition. Section 921.137(1) defines subaverage general intellectual functioning as "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." We have consistently interpreted this definition to require a defendant seeking exemption from execution to establish he has an IQ of 70 or below. See Cherry, 959 So.2d at 711-714 (finding that section 921.137 provides a strict cutoff of an IQ score of 70); Zack v....

...In Jones, 966 So.2d at 329, we found that IQ scores ranging from 67 to 72 did not equate to significantly subaverage general intellectual functioning. See also Rodgers v. State, 948 So.2d 655, 661 (Fla. 2006) (finding that the defendant did not prove he was retarded under section 921.137 despite the defense expert's finding that the defendant had an IQ of 69 and was mentally retarded); Burns v....

...f the expert's IQ tests, the defendant did not meet the first prong of the mental retardation determination because the more credible expert scored the defendant's IQ at 74). *511 Here, the majority of Phillips's IQ scores exceed that required under section 921.137....

...ent to satisfy the second prong of the mental retardation definition. We found that both the statute and the rule require significantly subaverage general intellectual functioning to exist concurrently with deficits in adaptive behavior. Id. (citing § 921.137(1), Fla....

...Suarez's intellectual testing in its determination because the only two testing instruments provided for under Florida Rule of Criminal Procedure 3.203 and Florida Administrative Code Rule 65G-4.011 are the Stanford-Binet and the WAIS-III. [11] Phillips also argues that the clear and convincing evidence standard of section 921.137(4), Florida Statutes (2001) (prohibiting the execution of a mentally retarded defendant), which the trial court applied, is unconstitutional....

...eath are contrary to the reasoning and holding in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which established that the Eighth Amendment prohibits the execution of the mentally retarded. Moreover, Dufour contended that section 921.137, Florida Statutes (2004), violates both the United States Constitution and the Florida Constitution....

...Dufour now appeals that decision. ANALYSIS The Mental Retardation Determination Dufour challenges the circuit court's determination that he is not mentally retarded in accordance with the definition set forth in Florida Rule of Criminal Procedure 3.203 and section 921.137(1), Florida Statutes (2005). In 2001, the Legislature enacted section 921.137, which barred the imposition of death sentences on the mentally retarded and established a method for determining which capital defendants are mentally retarded. See § 921.137, Fla....

...The term "adaptive behavior," for the purpose of this rule, 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. Accord § 921.137(1), Fla....

...Specifically, Dufour must have presented evidence of the following: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before the age of eighteen. See Fla. R.Crim. P. 3.203(b); § 921.137(1), Fla....

...ficantly subaverage general intellectual functioning," which is defined as "performance that is two or more standard deviations from the mean score on a standardized intelligence test" specified by the Department of Children and Family Services. See § 921.137(1)....

...kins. *247 We reject Dufour's request that this Court reconsider Cherry. Although all of the experts testified that a standard error of measurement must be applied to intelligence scores, this Court has consistently interpreted the plain language of section 921.137(1) to require the defendant to establish that he or she has an IQ of 70 or below. Both section 921.137 and rule 3.203 provide that significantly subaverage general intellectual functioning means "performance that is two or more standard deviations from the mean score on a standardized intelligence test." One standard deviation on the W...

...See Nixon, 2 So.3d at 142-43. Despite advancing reasonable arguments with regard to standard psychological practices for testing and measuring intellectual functioning, Dufour has not demonstrated a reason to overturn this Court's interpretation of the plain language of section 921.137....

...unctioning element. Adaptive Behavior Despite our conclusion as to the intellectual functioning element, we affirm the circuit court's determination that Dufour failed to establish that he demonstrates deficient adaptive functioning. As described in section 921.137(1) and rule 3.203(b), the term adaptive behavior "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." The definition in section 921.137 and Florida Rule of Criminal Procedure 3.203 states that the subaverage intellectual functioning must exist "concurrently" with adaptive deficits to satisfy the second prong of the definition, which this Court has interpreted to mean...

...If this Court adopted the dissent's methodology and required trial courts to only consider a defendant's limitations in determining a deficit, according to the dissent, the mere assertion of a limitation would be sufficient to produce a deficit. This would render the second prong of section 921.137's definition of mental retardation automatically satisfied and, as a consequence, superfluous....

...tardation as required. See id. Accordingly, we affirm the postconviction court's order because competent, substantial evidence supports the circuit court's determination that Dufour has failed to establish the adaptive behavior deficiency element of section 921.137 and rule 3.203....

...ther the subaverage intellectual functioning and deficient adaptive behavior manifested prior to the age of eighteen. See id. at 145; Phillips, 984 So.2d at 509 n. 11, Jones, 966 So.2d at 329-30; Trotter, 932 So.2d at 1049 n. 5. Constitutionality of Section 921.137(4) Dufour asserts that the circuit court unconstitutionally applied the clear and convincing evidence standard in evaluating whether Dufour is mentally retarded....

...imitations, rather than his or her demonstrated adaptive skills. This proposition is supported both by the American Association on Intellectual and Developmental Disabilities' (AAIDD) definition of mental *257 retardation, as well as the language of section 921.137, Florida Statutes (2006), and Florida Rule of Criminal Procedure 3.203. See § 921.137(1), Fla....

...But a court cannot reject a determination that deficits exist simply because a defendant has strengths in certain other areas. In other words, possessing certain adaptive skills in one area does not eliminate the possibility that the defendant has deficits in other areas. Section 921.137(1) defines adaptive behavior as "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....

...ental retardation, but were the consequence of intense drug use and his "deplorable home environment." The majority perpetuates the error by accepting these findings. Contrary to the trial court and the majority, nothing within the plain language of section 921.137 or rule 3.203 requires proof as to the causation of deficits in adaptive functioning—only that the defendant has such deficits....

...stitutional on its face and as applied; (7) the penalty phase jury instructions unconstitutionally shifted the burden to Trotter; and (8) cumulative errors were not harmless. [5] Trotter also argues that the clear and convincing evidence standard of section 921.137(4), Florida Statutes (2001) (prohibiting imposition of death sentence on a mentally retarded defendant), is unconstitutional....

...The term "adaptive behavior," for the purpose of this rule, 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. (Emphasis added.) Section 921.137(1), Florida Statutes (2005), provides an identical definition, but the statute "does not apply to a defendant who was sentenced to death prior to" its effective date. Id. § 921.137(8). [7] In his original brief, Trotter raises one issue—that section 921.137, Florida Statutes (2001), is unconstitutional because it does not provide for retrospective application of Atkins v....

...For the reasons discussed below, we deny relief on this issue. In Nixon v. State, 2 So.3d 137, 141 (Fla.2009), this Court summarized the history leading up to the current definition of mental retardation in Florida: In 2001, the Florida Legislature enacted section 921.137, Florida Statutes (2001), which barred the imposition of a death sentence on the mentally retarded and established a method for determining which capital defendants are mentally retarded. See § 921.137, Fla....

...The following year, the United States Supreme Court issued its opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), holding that execution of mentally retarded offenders constitutes "excessive" punishment under the Eighth Amendment. In response to Atkins and section 921.137, we promulgated Florida Rule of Criminal Procedure 3.203, which specifies the procedure for raising mental retardation as a bar to a death sentence. Pursuant to both section 921.137 and rule 3.203, a defendant must prove mental retardation by demonstrating: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See § 921.137(1), Fla....

...Kilgore claims that this Court's decision in Cherry violates the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). This Court, however, has already explicitly rejected this exact argument in Nixon: Nixon first argues that this Court's interpretation of section 921.137 in Cherry, which requires a defendant to have an IQ score of 70 or below, violates Atkins....

...399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)] with regard to insanity, `we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'") (citations omitted). This State in section 921.137(1) defines subaverage general intellectual functioning as "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 standard and that such a standard is unconstitutional. Nixon, 2 So.3d at 142. There is competent, substantial evidence to support the postconviction court's finding that Kilgore does not meet the first prong for mental retardation as defined by section 921.137 and rule 3.203....

...[2] After hearing the testimony of three mental health experts who evaluated Bottoson's mental condition, the trial court found that Bottoson was not mentally retarded. We do not reach the merits of whether Bottoson's execution would violate the Eighth Amendment or whether section 921.137, Florida Statutes (2001), dealing with the execution of the mentally retarded is unconstitutional as applied, because we conclude that the trial court's finding of no mental retardation is supported by the record and evidence presented at the evidentiary hearing....

...Burns appealed the denial of his postconviction motion, raising four issues. [6] Oral argument was held in this Court on February 5, 2002. On February 4, 2002, Burns requested permission to file a supplemental brief concerning whether he met the statutory definition for mental retardation based on section 921.137, Florida Statutes (2000)....

...[11] Burns' verbal IQ was 79, while his performance IQ was 62. [12] Mild mental retardation means that the person has an IQ in the range of 55 to 70. [13] Burns also argues that the circuit court's use of the clear and convincing evidence standard was unconstitutional. Section 921.137(4) sets out the clear and convincing evidence standard as the appropriate standard to be used in determining mental retardation....

...itiated the conversation when they first met, decided how he would spend his paycheck, gave her money to pay bills, and made the necessary arrangements to obtain housing that they shared. The postconviction court did not err in denying relief. Under section 921.137(1), Florida Statutes (2009), to prevail on this claim Diaz was required to establish: “(1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen.” Franqui v. State, 59 So.3d 82, 91 (Fla.2011); Cherry v. State, 959 So.2d 702, 711 (Fla.2007). “In Cherry, we held that the language of section 921.137(1) is clear and unambiguous in mandating a strict cut-off IQ score of two standard deviations from the mean score, which is exactly 70.” Franqui, 59 So.3d at 91 ....

...At that time, Snelgrove requested time to collect evidence on all three statutory prongs necessary to show mental retardation: (1) significantly subaverage general intellectual functioning; 5 (2) concurrent deficits in adaptive behavior; and (3) manifestation of both during the period from conception to age 18. See § 921.137(1), Fla....

...Trial Court’s Finding that Snelgrove Was Not Mentally Retarded Snelgrove argues that the trial court erred by finding that Snelgrove was not mentally retarded. 7 However, we affirm. Florida law includes a three-prong test for mental retardation as a bar to imposition of the death penalty. See § 921.137(1), Fla. Stat. (2009); Fla. R.Crim. P. 3.203; Nixon v. State, 2 So.3d 137, 141 (Fla.2009); Cherry v. State, 959 So.2d 702, 711 (Fla.2007). This Court has “consistently interpreted section 921.137(1) as providing that a defendant may establish mental retardation by demonstrating all three of the following factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen.” Nixon, 2 So.3d at 142 . At trial, the defendant “carries the burden to prove mental retardation by clear and convincing evidence.” Franqui v. State, 59 So.3d 82, 92 (Fla.2011); see § 921.137(4),- Fla....

...We have found support for a *253 finding against subaverage general intellectual functioning where the IQ scores did not definitively suggest mental retardation. See Phillips v. State, 984 So.2d 503, 511 (Fla.2008) (“[T]he majority of Phillips’s IQ scores exceed that required under section 921.137....

...spite of one IQ score of 69 because the more credible expert scored Burns’ IQ at 74). Second, competent, substantial evidence supports the conclusion that Snelgrove failed to demonstrate deficits in adaptive behavior. See Dufour, 69 So.3d at 248 . Section 921.137(1), Florida Statutes, defines “adaptive behavior” as “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 co...

...or basic needs, and requested items that included a dictionary, pinochle cards, and prior medical reports. In short, there was evidence to support the finding that Snelgrove met “the standards of personal independence and social responsibility.” § 921.137(1), Fla....

...[7] We note that the Legislature recently passed a bill, which the Governor signed into law, that sets up a procedure to determine if defendants charged with capital felonies are mentally retarded, and to prohibit mentally retarded defendants from being executed. See ch.2001-202, Laws of Florida (2001) (codified at § 921.137, Fla....

...Moore, SC02-1455, petition at 42. In this Court's previous opinion affirming the trial court's conclusion that Bottoson is not mentally retarded, this Court observed: We do not reach the merits of whether Bottoson's execution would violate the Eighth Amendment or whether section 921.137, Florida Statutes (2001), dealing with the execution of the mentally retarded is unconstitutional as applied, because we conclude that the trial court's finding of no mental retardation is supported by the record and evidence presented at the evidentiary hearing....

...ion of mental retardation pursuant to Florida Rule of Criminal Procedure 3.203. ANALYSIS Prior to the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the Florida Legislature created section 921.137, Florida Statutes (2001), which prohibited the execution of the mentally retarded. This law became effective on June 12, 2001. See Ch.2001-202, § 2, at 1833, Laws of Fla. However, by its express terms, this law did not apply to a defendant, such as Foster, sentenced to death prior to the effective date of the law. See § 921.137(8)....

...he Supreme Court's decision in Atkins and this Court's enactment of rule 3.203. As a result, Foster could not have brought his mental retardation claim until after the evidentiary hearing occurred because Atkins had not yet been decided, and because section 921.137 did not apply retroactively....

...mitigator at his trial and as related to the issue of his counsel's ineffectiveness at the subsequent postconviction evidentiary hearing, at no time did Foster allege or attempt to prove mental retardation as a constitutional bar to execution under section 921.137, Atkins, or rule 3.203....

...life that could be considered normal (some weight). . It appears that Griffin also was an instigator. Notwithstanding, we note that the trial court found him to be intellectually disabled, thereby rendering him ineligible for the death penalty under section 921.137, Florida Statutes (2009)....

...lties and a speech impediment, the Court finds that [Hall] was competent at the resentencing hearings.” Id. at 229 . After Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), was decided, Hall filed a motion to declare *707 section 921.137, Florida Statutes (2004), 1 unconstitutional....

...left to the states the task of developing appropriate ways to enforce the constitutional restriction on imposition of the death sentence on mentally retarded persons. Nixon, 2 So.3d at 142. Id. at 94 (citing Nixon v. State, 2 So.3d 137 (Fla.2009)). Section 921.137, Florida Statutes (2012), prohibits the trial court from sentencing to death a mentally retarded defendant who is convicted of a capital felony. Section 921.137 provides the governing legal standard for such claims, and rule 3.203 outlines the procedural requirements....

...tkins : (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) manifested during the period from conception to age eighteen. See Atkins, 536 U.S. at 318 , 122 S.Ct. 2242 ; § 921.137(1), Fla....

...s of personal independence and social responsibility expected of his or her age, cultural group, and community. The Agency for Persons with Disabilities shall adopt rules to specify the standardized intelligence tests as provided in this subsection. § 921.137(1), Fla. Stat. (2012). This statute was adopted prior to the Supreme Court’s ruling in Atkins. See Ch.2001-202, § 1, Laws of Fla. In Cherry v. State, 959 So.2d 702 (2007), we determined the proper interpretation of section 921.137. Cherry argued that an IQ measurement is more appropriately expressed as a range of scores rather than a concrete number because of the SEM. We held: Both section 921.137 and rule 3.203 provide that significantly subaverage general intellectual functioning means “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” One standard deviation on t...

...ntrary to Atkins . In Franqui, we found that (1) the United States Supreme Court did not mandate a specific IQ score or range for a finding of mental retardation in Atkins ; (2) Florida’s statute prohibiting the execution of the mentally retarded, section 921.137, preceded Atkins ; (3) proper interpretation of section 921.137 was under the plain language of the statute providing that “significantly subaverage general intellectual functioning” means performance that is “two or more standard deviations from the mean score on a standardized intelligence test” and does not require the Court to consider the standard error of measurement (SEM); and (4) one standard deviation on the test in question is fifteen points, thus 70 is the appropriate score based on the plain language of section 921.137 and not a range of scores....

...Thus, we have concluded that because a defendant must establish all three elements of such a claim, the failure to establish any one element will end the inquiry. See, e.g., Cherry, 959 So.2d at 714 (“Because we find that [the defendant] does not meet this first prong of the section 921.137(1) criteria, we do not consider the other two prongs of the mental retardation determination.”)....

...Hall’s argument that the lower court improperly limited his introduction of evidence after he failed to establish the requisite IQ is thus without merit. See Jones v. State, 966 So.2d 319, 325 (Fla.2007); Burns v. State, 944 So.2d 234, 249 (Fla.2006); § 921.137(4), Fla....

...It is so ordered. POLSTON, C.J., LEWIS, and CANADY, JJ., concur. PARIENTE, J., concurs with an opinion. LABARGA, J., dissents with an opinion, in which PERRY, J., concurs. PERRY, J., dissents with an opinion, in which LABARGA, J., concurs. QUINCE, J., recused. . Section 921.137, Florida Statutes was enacted during a regular session of the Florida Legislature in 2001....

executing the intellectually disabled, Fla. Stat. § 921.137, covered only those with "an IQ of 70 or below

(Fla. 2016); see also: Fla. R. Crim. P. 3.203; § 921.137(1), Fla. Stat. (2013). At the time of Glover’s

...(2) the procedure for determination of mental retardation as provided by Florida Rule of Criminal Procedure 3.202 violates the United States and Florida constitutions, and (3) Coleman is mentally retarded and therefore his execution is forbidden by section 921.137, Florida Statutes (2001), and by Atkins v....

...Florida, concluding that a State cannot execute a person whose IQ test score falls within the test’s margin of error unless he has been able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits. 134 S. Ct. at 2001. Under § 921.137 of the Florida Statutes as interpreted by the Florida Supreme Court, a prisoner sentenced to death previously had been required to (2) After receiving the report of the commission, if the Governor decides that the convict...

...Thus, in Hall, the Supreme Court concluded that because of a +/- 5 standard of error, “an individual with an IQ test score ‘between 70 and 75 or lower’ . . . may show intellectual disability by presenting additional evidence regarding difficulties in adaptive 4 In relevant part, § 921.137 provides: [T]he term “intellectually disabled” or “intellectual disability” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and...

...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 . . . . Fla. Stat. § 921.137(1). 6  Case: 14-12623 Date Filed: 06/17/2014 Page: 7 of 46 functioning.” Hall, 134 S....

...To prove mental retardation, a defendant must demonstrate: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See § 921.137(1), Fla....

...As outlined below, Florida’s definition of mental retardation substantially parallels the clinical definitions discussed by the Supreme Court in Atkins. C. Florida’s Definition of Mental Retardation 10  In 2001, even before Atkins, the Florida legislature enacted § 921.137, Florida Statutes, which prohibited execution of mentally retarded persons and established a method for determining which capital defendants are mentally retarded. Section 921.137 defines “mentally retarded” as (1) “significantly subaverage general intellectual functioning,” (2) “existing concurrently with deficits in adaptive behavior,” and (3) “manifested during the period from conception to age 18.” Fla. Stat. § 921.137(1)....

...The Florida statute defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on [an authorized] standardized intelligence test.” Id. Florida courts have interpreted § 921.137(1)’s definition of “significantly subaverage general intellectual functioning” to mean an IQ score of 70 or below. Phillips v. State, 984 So. 2d 503, 510 (Fla. 2008). Section 921.137, however, applies only to those defendants sentenced to death on or after its effective date of June 12, 2001. Fla. Stat. § 921.137(8)....

...xecution. See Fla. R. Crim. P. 3.203; Amendments to Fla. R. Crim. P. & Fla. R. App. P., 875 So. 2d 563 (Fla. 11 2004). Rule 3.203’s definition of mental retardation is substantially identical to that of § 921.137 and the clinical definitions in Atkins. Compare Fla. Stat. § 921.137(1), with Fla....

...orce the constitutional restriction upon [their] execution of sentences.”) (quoting Ford v. Wainwright, 477 U.S. 399, 405 , 106 5.Ct. 2595, 91 L.Ed.2d 335 (1986)). Prior to the Supreme Court’s decision in Atkins , the Florida Legislature enacted section 921.137, Florida Statutes, in 2001. This statute exempts mentally retarded persons from the death penalty and provides a method for establishing whether a capital defendant is mentally retarded. 6 *895 In accordance with section 921.137 and in response to Atkins , this Court adopted Florida Rule of Criminal Procedure 3.203 in 2004. This rule explicitly addresses mental retardation as a bar to the imposition of the death penalty and effectively parallels the language in section 921.137(1)....

...e general intellectual functioning” means “performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services.” In light of rule 3.203(b) and section 921.137, this Court has consistently held that in order for a defendant to be exempt from the death penalty based upon a claim of mental retardation, he must bear the burden of establishing all three criteria of the three-prong standard. See Jones v. State, 966 So.2d 319, 325 (Fla.2007); Burns v. State, 944 So.2d 234, 245 (Fla. 2006). Further, a defendant must prove each of the three elements by clear and convincing evidence. See § 921.137(4), Fla....

...Cherry, 959 So.2d at 712 . Despite various challenges to the application of a bright-line IQ cutoff as it relates to the first prong of the mental retardation standard, this Court has consistently and explicitly held that in order to prove exemption from execution under section 921.137 and rule 3.203, a defendant must establish an IQ of 70 or below....

...See Zack, 911 So.2d at 1201 (“Under Florida law, one of the criteria to determine if a person is mentally retarded is that he or she has an IQ of 70 or below.”) The numerical threshold of an IQ score of 70 or below is in line with the plain language of section 921.137(1) which states that significantly subaverage general intellectual functioning is two or more standard deviations from the mean score on a standardized intelligence test....

...One standard deviation on the Wechsler IQ test, which was administered to Herring in the instant case, is fifteen points. Two standard deviations from the mean of 100 is an IQ of 70. See Dufour v. State, 69 So.3d 235, 247 (Fla.2011) (stating that the plain meaning of section 921.137 and rule 3.203 provide that an IQ score of 70 or below is required to meet the first criterion of mental retardation); Phillips v....

...s in their statutes.” Nixon, 2 So.3d at 142 . Moreover, we have specifically rejected Herring’s contention that the standard error of measurement must be factored into the IQ score. See Cherry, 959 So.2d at 713 (noting that the plain language of section 921.137(1) “does not use the word approximate” in defining significantly subaverage general intellectual functioning as correlating to two standard deviations from the mean, which is an IQ score of 70, and does not “reference the [stand...

...-off score of 70; rejecting defendant’s request to recede from Court’s previous decisions and factor in the standard error of measurement to benefit the defendant; and stating that “this Court has consistently interpreted the plain language of section 921.137(1) to require the defendant to establish that he or she has an IQ of 70 or below”)....

...Sofka, 702 So.2d 1243, 1245 (Fla.1997) (explaining that parties cannot stipulate to subject matter jurisdiction where none exists). In the context of determining whether mental retardation is a bar to imposing the death penalty, “[t]he circuit court’s task is to apply the law as set forth in section 921.137, Florida Statutes, which provides for mental retardation proceedings in capital cases; and the circuit court must also follow this Court’s precedent.” Franqui, 59 So.3d at 92 ; accord Jones, 966 So.2d at 327 . Here, the circuit court did not follow this Court’s clear precedent or the law set forth in section 921.137....

...[and] [t]he onset must occur before age 18 years.” Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 41 (4th ed. 2000). The DSM-IV-TR further provides that a score of "about 70 or below” constitutes significantly subaverage intellectual functioning. Id. . Section 921.137(1) provides the mental retardation means "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Unlike the DSM-IV-TR, however, the statute does not specify an IQ range for determining the “significantly sub-average general intellectual functioning” prong. Instead, section 921.137(1) specifies that the term means "performance that is two or more standard deviations from the mean score on a standardized intelligence test spec *895 ified in the rules of the Agency for Persons with Disabilities.” ....

...The rule defines “intellectual disability” as having three elements: (1) significantly sub-average intellectual general functioning that (2) exists concurrently with deficits in adaptive behavior and which has (3) manifested itself prior to age 18. Fla. R.Crim. P. 3.203; see also § 921.137, Fla....

...Based on these 2 Since 2001, Florida’s statute has defined “mental retardation” as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” See Fla. Stat. § 921.137(1)....

...significantly subaverage general intellectual functioning. The court also said that because Kilgore did not show subaverage general intellectual functioning, it would not consider the other two prongs of Florida’s intellectual disability test. See Fla. Stat. § 921.137(1) (2007); Fla....

...Florida, — U.S. —, 134 S.Ct. 1986 , 188 L.Ed.2d 1007 (2014). In our previous decision in Hall v. State (Hall IX), 109 So.3d 704 (Fla.2012), we affirmed the Fifth Circuit court’s denial of Hall’s postconviction motion, holding that our interpretation of section 921.137(1), Florida Statutes, in Cherry v....

...State, 959 So.2d 702, 712-13 (Fla.2007), was proper. We concluded that because Hall failed to establish that his IQ was below 70, the circuit court properly denied his claim. The United States Supreme Court reversed our decision, holding that our decision interpreted section 921.137 so narrowly that it precluded sentencing courts from considering substantial evidence that is accepted by the medical community to be probative of intellectual disability....

...dissenting))). In 2002, the Supreme Court ruled that the Eighth Amendment prohibited the execution of a person with an intellectual disability. Atkins v. Virginia, 536 U.S. 304, 321 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002). Hall filed a motion to declare section 921.137, Florida Statutes, unconstitutional....

...Florida’s statute defines intellectual disability for purposes of an Atkins proceeding as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Fla. Stat. § 921.137 (1) (2013)....

...In *635 sum, when determining the eligibility for the death penalty of a defendant who has an IQ test score approaching 70, Florida courts may not bar the consideration of other evidence of deficits in intellectual and adaptive functioning. Florida courts may continue to abide by section 921.137(1), but may not have a bright-line cutoff IQ test score because “[i]t is not sound to view a single factor as dispositive of a conjunctive and interrelated assessment.” Hall v....

...lt.” Id. at 325. We rejected that the statute and rule should be read so narrowly. However, the lower court incorrectly read this Court’s decision to preclude a retrospective analysis of Hall prior to his incarceration but while he was an adult. Section 921.137(1) of the Florida Statutes defines “adaptive behavior” as “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....

...Florida, which recognized that, based on a consensus within the medical community, this prong simply requires the “onset of these deficits during the developmental period.” Id. at 1994 . Further, this argument was raised and rejected in Oats v. State, 181 So.3d 457, 469 (Fla.2015) (holding that section 921.137(1), Florida Statutes, requires only that intellectual disability be demonstrated to have manifested prior to age eighteen, not that it be diagnosed)....

...OC records 1. Effective July 1, 2013, the term “mentally retarded” has been replaced with the term “intellectually disabled,” and the term “mental retardation” has been replaced with the term “intellectual disability.” See § 921.137, Fla....

...The 2013 Legislature amended all Florida statutes that refer to “mental retardation,” “retardation,” and “mentally retarded” to now refer to “intellectual disability” or “intellectually disabled.” See ch. 2013-162, Laws of Fla.; see, e.g., section 921.137, Florida Statutes (2013), titled “Imposition of the death sentence upon an intellectually disabled defendant prohibited.” Because the prior statute was in effect when Hurst raised the issue in the trial court, we continue to use t...

...functioning, which has been interpreted to be a full scale IQ of 70 or below on a standardized intelligence test; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See, e.g., Nixon v. State, 2 So. 3d 137, 142 (Fla. 2009); § 921.137(1), Fla. Stat. (2012). The burden is on the defendant raising a claim of mental retardation as a bar to execution to prove mental retardation by clear and convincing evidence. See Nixon, 2 So. 3d at 145; § 921.137(4), Fla....

...that the American Association of Mental Retardation (AAMR) and the American Psychiatric Association have established that clinical definition." DE 21 at 36-7(footnote omitted). Mr. Jones also argues that "the Florida Supreme Court's construction of Section 921.137(2) violates fundamental principles of due process restricting the permissible use of presumptions." DE 21 at 46....

...y requirements for mental retardation." Id. at 325. The Florida Supreme Court affirmed. See Jones v. State, 966 So.2d 319 (Fla.2007). Although Mr. Jones argues that the Florida Supreme Court wrongly interpreted Fla. R.Crim. P. 3.203(b) and Fla Stat. § 921.137, section 921.137 "applies only to persons sentenced to death after the effective date of the statute in 2001. Fla. Stat. 921.137(8)." Carroll v. Secy. Dept. of Corr., 574 F.3d 1354, 1367 (11th Cir.2009). Mr. Jones was sentenced to death in 1993. Therefore, § 921.137 is inapplicable to Mr....

...subaverage general intellectual functioning," and further defines that term as "performance that is two or more standard deviations from the mean score on a standardized intelligence test" specified by the Department of Children and Family Services. § 921.137(1), Fla....

...f witnesses, and evidentiary weight, "this Court will not substitute its judgment for that of the trial court"). Jones, 966 So.2d at 329-30. While the Florida Supreme Court analyzed the trial court's determinations under the microscope of Fla. Stat. § 921.137, the Court will consider the factual determinations in the context of Atkins and under the AEDPA standard of review....

...functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See Hurst v. State, 147 So.3d 435, 441 (Fla. 2014) rev’d, Hurst v. Florida, — U.S. -, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016); § 921.137(1), Fla. Stat. The defendant has the burden to prove that he is intellectually disabled by clear and convincing evidence. Franqui v. State, 59 So.3d 82, 92 (Fla. 2011); § 921.137(4), Fla....

...Therefore, Williams is not entitled to relief. See Salazar, 188 So.3d at 812 (“If the defendant fails to prove any one of these components, the defendant will- not be found, to be intellectually disabled.”). The term “adaptive behavior,” as used in section 921.137(1), Fla....

...Moreover, the fact that Williams successfully obtained his GED diploma supports the conclusion that he does not suffer from adaptive deficits. See Dufour, 69 So.3d at 250 . We recently reiterated that “[i]f the defendant fails to prove any one of the[] components [delineated in section 921.137(1), Florida Statutes], the defendant will not be found to be intellectually disabled.” Salazar, 188 So.3d at 812 ....

...To prevail on a claim of intellectual disability, a defendant must establish three elements: (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) manifesting prior to age 18. § 921.137, Fla....

...courts. In addition to many exhausted claims, Thompson presented two unexhausted claims to the district court. One unexhausted claim related to the recent passage of a Florida statute prohibiting the execution of mentally retarded people. Fla. Stat. § 921.137 (2001)....

State, [959 So.2d 702 (Fla. 2007)]. See also section 921.137(1), Fla. State.; Fla.R.Crim.P. 3.203(c) (e)

...This appeal follows. “[T]he term ‘intellectually disabled’ or ‘intellectual disability’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” § 921.137(1), Fla....

...“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.” Id. In Hall, the Supreme Court held that Florida’s interpretation of section 921.137(1) as establishing a strict IQ test score cutoff of 70 “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” 134 S....

...IQ for the purposes of an ID determination; thus, Wright’s claim fails again. It is unconstitutional to impose a death sentence upon any defendant with ID. Moore, 137 S. Ct. at 1048; Atkins v. Virginia, 536 U.S. 304, 321 (2002); see also § 921.137(2), Fla. Stat. (2017). In Florida, section 921.137, Florida Statutes, defines ID with a three-prong test: (1) “significantly subaverage general intellectual functioning [(2)] existing concurrently with deficits in adaptive behavior and [(3)] manifested during the period from conception to age 18.” § 921.137(1); see Hall, 134 S. Ct. at 1994.2 To demonstrate ID, a defendant must make this showing by clear and convincing evidence. § 921.137(4). 2....

... With regard to the first prong, the statute defines the phrase “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” § 921.137(1)....

...functioning. Although Moore addressed the adaptive functioning prong, the decision does not change the outcome of Wright’s claim here. This issue relates to the second prong of the ID test: concurrent “deficits in adaptive behavior.” § 921.137(1)....

...Moreover, because intelligence and functioning deficits must present themselves during the developmental stage (prong three), it seems necessary that they exist at the same time (i.e., before a defendant turns - 12 - definition. Compare § 921.137(1), with DSM-5, at 37, and AAIDD-11, at 6, 43. Comparable to IQ scores, the AAIDD-11 recommends that adaptive deficits be established by standardized tests when an individual scores approximately two standard deviations below the population mean, with the results accounting for SEM....

...the Texas court relied upon superseded medical standards to conclude that the defendant was not intellectually disabled. See generally Moore, 137 S. Ct. 1039. Glover, 226 So. 3d at 811 n.13. As explained above and noted in Glover, neither section 921.137 nor this Court’s interpretation of the statute has been superseded by medical standards. Supra pp. 7 note 3, 12-13; see generally DSM-5, at 37; AAIDD-11, at 5. Unlike Texas, Florida does not maintain a relatedness requirement between the first two prongs. See § 921.137; Moore, 137 S....

...econsideration order. I also agree with the majority’s conclusion that Moore v. Texas, 137 S. Ct. 1039 (2017), has no impact on our review of the trial court’s rejection of Wright’s assertion that he is intellectually disabled as defined in section 921.137(1), Florida Statutes 11....

...sentencing judge alone, to find an aggravating circumstance necessary to impose the death penalty). Unsurprisingly, among Zack’s six initial postconviction claims 6 were an Atkins and a Ring claim. 5. Before Atkins was decided, the Florida Legislature created section 921.137, Florida Statutes (2001), which prohibited the execution of “mentally retarded” defendants; i.e., a defendant with “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Ch....

...To be barred from receiving the death penalty due to intellectual disability, a defendant must exhibit (1) significantly subaverage general intellectual functioning, and (2) concurrent deficits in adaptive behavior, (3) that shall have manifested before age 18. § 921.137(1) Fla....

...the relevant statute in Hall defined “intellectual disability” as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age [eighteen].” 572 U.S. at 711 (quoting § 921.137(1), Fla....

...borderline intellectual functioning, including impairments in his frontal lobe functioning for reasoning and judgment, the expert testified that Wright did not satisfy the requirements for statutory mitigation . . . or qualify as mentally retarded under section 921.137, Florida Statutes (2000)....

...due to fetal alcohol syndrome. In that expert’s opinion, Wright could not balance a checkbook, maintain a household, or keep his refrigerator stocked. However, this expert did not consider the recognized standardized intelligence tests required by section 921.137 to be the measure of mental retardation and conceded that under the statutory definition, Wright would not be considered mentally retarded. A special hearing was held to specifically address whether Wright met the statutory criteria for mental retardation....

...tellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See Hurst v. State, 147 So. 3d 435, 441 (Fla. 2014) rev’d, Hurst v. Florida, 136 S. Ct. 616 (2016); § 921.137(1), Fla. Stat. The defendant has the burden to prove that he is intellectually disabled by clear and convincing evidence. Franqui v. State, 59 So. 3d 82, 92 (Fla. 2011); § 921.137(4), Fla....

...a bar to execution, IQ scores are best evaluated as a range, taking into account the standard error of measurement (SEM) and other factors that can affect the accuracy of the score: 3. Referring us to Cooper v. Oklahoma, 517 U.S. 348 (1996), Wright also contends that section 921.137(4), Florida Statutes, is facially unconstitutional because the clear and convincing evidence standard creates too high of a risk that he will be mistakenly determined to not be intellectually disabled....

...monstrate by even a preponderance of the evidence that he suffers from concurrent deficits in adaptive functioning, the second prong of a finding of intellectual disability. In Dufour, we explained what this prong requires: As described in section 921.137(1) and rule 3.203(b), the term adaptive behavior “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.” The definition in section 921.137 and Florida Rule of Criminal Procedure 3.203 states that the subaverage intellectual functioning must exist “concurrently” with adaptive deficits to satisfy the second prong of the definition, which this Court ha...

...To prevail on a claim of intellectual disability, a defendant must establish three elements: (1) significantly subaverage general intellectual functioning (2) existing concurrently with deficits in adaptive behavior and (3) manifesting prior to age 18. § 921.137(1), Fla....

...Based on these 2 Since 2001, Florida’s statute has defined “mental retardation” as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” See Fla. Stat. § 921.137(1)....

...significantly subaverage general intellectual functioning. The court also said that because Kilgore did not show subaverage general intellectual functioning, it would not consider the other two prongs of Florida’s intellectual disability test. See Fla. Stat. § 921.137(1) (2007); Fla....

...*54 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....

...er 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 [ 959 So.2d 702 ] (Fla. April 12, 2007). See also, section 921.137(1), Fla....

...nd 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....

...ing. 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 714 ....

...IQ for the purposes of an ID determination; thus, Wright’s claim fails again. It is unconstitutional to impose a death sentence upon any defendant with ID. Moore, 137 S. Ct. at 1048; Atkins v. Virginia, 536 U.S. 304, 321 (2002); see also § 921.137(2), Fla. Stat. (2017). In Florida, section 921.137, Florida Statutes, defines ID with a three-prong test: (1) “significantly subaverage general intellectual functioning [(2)] existing concurrently with deficits in adaptive behavior and [(3)] manifested during the period from conception to age 18.” § 921.137(1); see Hall, 134 S. Ct. at 1994. 2 To demonstrate ID, a defendant must make this showing by clear and convincing evidence. § 921.137(4). 2....

... With regard to the first prong, the statute defines the phrase “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” § 921.137(1)....

...functioning. Although Moore addressed the adaptive functioning prong, the decision does not change the outcome of Wright’s claim here. This issue relates to the second prong of the ID test: concurrent “deficits in adaptive behavior.” § 921.137(1)....

...Moreover, because intelligence and functioning deficits must present themselves during the developmental stage (prong three), it seems necessary that they exist at the same time (i.e., before a defendant turns - 12 - definition. Compare § 921.137(1), with DSM-5, at 37, and AAIDD-11, at 6, 43. Comparable to IQ scores, the AAIDD-11 recommends that adaptive deficits be established by standardized tests when an individual scores approximately two standard deviations below the population mean, with the results accounting for SEM....

...the Texas court relied upon superseded medical standards to conclude that the defendant was not intellectually disabled. See generally Moore, 137 S. Ct. 1039. Glover, 226 So. 3d at 811 n.13. As explained above and noted in Glover, neither section 921.137 nor this Court’s interpretation of the statute has been superseded by medical standards. Supra pp. 7 note 3, 12-13; see generally DSM-5, at 37; AAIDD-11, at 5. Unlike Texas, Florida does not maintain a relatedness requirement between the first two prongs. See § 921.137; Moore, 137 S....

...econsideration order. I also agree with the majority’s conclusion that Moore v. Texas, 137 S. Ct. 1039 (2017), has no impact on our review of the trial court’s rejection of Wright’s assertion that he is intellectually disabled as defined in section 921.137(1), Florida Statutes 11....

...Intellectual Disability The determination of intellectual disability is subject to a three-prong test: (1) significantly subaverage intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. § 921.137(1), Fla....

...2d 146, 149 (Fla. 2007) (citing Trotter v. State, 932 So. 2d 1045, 1050 (Fla. 2006)). First, we reject Franqui’s argument that this Court should recede from Salazar, as well as his challenge to the clear and convincing burden of proof set forth in section 921.137(4), Florida Statutes....

...Florida compels a jury determination of intellectual disability is without merit. Under Florida law, both the statute and the rule governing intellectual disability in capital cases provide that the determination shall be made by a judge, not a jury. See § 921.137, Fla....

...The next day, he filed another motion with the same title as the first and an amended version—both of which do not differ in substance from the one filed on May 26. In these motions, Walls argued that his death manifested itself prior to age 18. Fla. R. Crim. P. 3.203; see also § 921.137, Fla. Stat....

...scores of 102 (at age 12) and 101 (at age 14). Based on these IQ scores, Walls could not establish that he met the third prong of the test for intellectual disability, which requires that the condition be “manifested during the period from conception to age 18.” § 921.137(1), Fla....

...ility can be established only if a person suffers from “significantly subaverage general intellectual functioning,” which “means performance that is two or more standard deviations from the mean score on a standardized intelligence test.” § 921.137(1)....

...to execution. To prove intellectual disability, a defendant must demonstrate: (1) significantly sub-average general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition prior to age eighteen. § 921.137(1), Fla....

...Regarding the second prong, the term adaptive behavior “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....

...utional, the United States Supreme Court left for the states “the task of developing appropriate ways to enforce the constitutional restriction” established in Atkins. Id. at 317 , 122 S.Ct. 2242 . In 2001, before Atkins, the Legislature enacted section 921.137, Florida Statutes, barring the execution of intellectually disabled defendants. See § 921.137(2), Fla....

...st determine that a criminal defendant is intellectually disabled. Rather, the United States Supreme Court explicitly left the implementation of Atkins to the states. Thus, Oats has not demonstrated that Florida’s Atkins procedure, as set forth in section 921.137, is unconstitutional....

...). Under Florida law, “ ‘intellectual disability’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” § 921.137(1), Fla....

...Thus, a defendant was required to present an IQ score of 70 or below in order to establish the first prong of the intellectual disability standard. Failure to present the requisite IQ score precluded a finding of intellectual disability. In Hall, the Supreme Court held that Florida’s “rigid rule” interpreting section 921.137(1) as establishing a strict IQ test score cutoff of 70 or less in order to present additional evidence of intellectual disability “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” 572 U.S....

PER CURIAM. In 2001, the Legislature created section 921.137, Florida Statutes, which bars the imposition of death sentences on mentally retarded persons and establishes a method for determining which capital defendants are mentally retarded. The Criminal Procedure Rules Committee thereafter proposed new Rule of Criminal Procedure 3.203 to provide the necessary procedure to raise mental retardation as a bar to a death sentence under section 921.137....

...Atkins was not decided at the time the rules committee proposed new rule 3.203. This Court thus deferred consideration of the committee’s proposal and stated that it would consider the proposal together with several eases pending in this Court that raise claims '- based on section 921.137 or Atkins....

...It is so ordered. ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur. PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs. CANTERO, J., concurs with an opinion, in which ANSTEAD, C.J., and PARIENTE, J., concur. . Section 921.137, Florida Statutes (2003), provides: (1) 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 the period from conception to age 18....

...We have found support for a finding against subaverage general intellectual functioning where the IQ scores did not definitively suggest mental retardation. See Phillips v. State, 984 So.2d 503, 511 (Fla. 2008) (“[T]he majority of Phillips’s IQ scores exceed that required under section 921.137....

...2006) (finding competent, substantial evidence in spite of one IQ score of 69 because the more credible expert scored Burns’ IQ at 74). Second, competent, substantial evidence supports the conclusion that Snel-grove failed to demonstrate deficits in adaptive behavior. Section 921.137(1), Florida Statutes, defines “adaptive behavior” as “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 co...

...To establish such a.claim, a defendant must demonstrate the following: “(1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen,” Id.; see also § 921.137(1), Fla....

...V, § 3(b)(1), (9), I?la. Const. . Because the terms "mental retardation” or "mentally retarded” and "intellectual disability” or “intellectually disabled” have the same meaning, they will be used interchangeably throughout this opinion. See § 921.137(9), Fla....

...Cherry’s rigid IQ score cutoff, holding that it “create[d] an unacceptable risk that persons with intellectual disability will be executed” in violation of the Eighth Amendment to the United 3. See Cherry, 959 So. 2d at 711 (interpreting section 921.137(1), Florida Statutes (2002), as requiring a defendant seeking to establish an intellectual disability claim to prove that (1) “he has significantly subaverage general intellectual functioning,” an IQ of 70 or less, (2) “significantly subaverage general intellectual functioning ....

...borderline intellectual functioning, including impairments in his frontal lobe functioning for reasoning and judgment, the expert testified that Wright did not satisfy the requirements for statutory mitigation . . . or qualify as mentally retarded under section 921.137, Florida Statutes (2000)....

...due to fetal alcohol syndrome. In that expert’s opinion, Wright could not balance a checkbook, maintain a household, or keep his refrigerator stocked. However, this expert did not consider the recognized standardized intelligence tests required by section 921.137 to be the measure of mental retardation and conceded that under the statutory definition, Wright would not be considered mentally retarded. A special hearing was held to specifically address whether Wright met the statutory criteria for mental retardation....

...tellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See Hurst v. State, 147 So. 3d 435, 441 (Fla. 2014) rev’d, Hurst v. Florida, 136 S. Ct. 616 (2016); § 921.137(1), Fla. Stat. The defendant has the burden to prove that he is intellectually disabled by clear and convincing evidence. Franqui v. State, 59 So. 3d 82, 92 (Fla. 2011); § 921.137(4), Fla....

...a bar to execution, IQ scores are best evaluated as a range, taking into account the standard error of measurement (SEM) and other factors that can affect the accuracy of the score: 3. Referring us to Cooper v. Oklahoma, 517 U.S. 348 (1996), Wright also contends that section 921.137(4), Florida Statutes, is facially unconstitutional because the clear and convincing evidence standard creates too high of a risk that he will be mistakenly determined to not be intellectually disabled....

...monstrate by even a preponderance of the evidence that he suffers from concurrent deficits in adaptive functioning, the second prong of a finding of intellectual disability. In Dufour, we explained what this prong requires: As described in section 921.137(1) and rule 3.203(b), the term adaptive behavior “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.” The definition in section 921.137 and Florida Rule of Criminal Procedure 3.203 states that the subaverage intellectual functioning must exist “concurrently” with adaptive deficits to satisfy the second prong of the definition, which this Court ha...

...Jerry Leon Haliburton, a prisoner under sentence of death, appeals the trial court’s order denying his motion for a determination of intellectual disability as a bar to execution, which was filed under Florida Rule of Criminal Procedure 3.203 and section 921.137, Florida Statutes (2019), and his amended successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851....

...disability claim in 2013, Haliburton petitioned the United States Supreme Court for a writ of certiorari. Shortly thereafter, the Supreme Court issued its decision in Hall v. Florida, 572 U.S. 701, 704 (2014), holding that Florida’s “rigid rule” interpreting section 921.137(1), Florida Statutes, 1 as establishing a strict IQ test score cutoff of 70 or less in order to present additional evidence of intellectual disability “creates an unacceptable risk that persons with intellectual disability will...

...Haliburton, 574 U.S. 801. On remand from the Supreme Court, this Court vacated its prior decision and remanded this case to the trial court for an evidentiary hearing on Haliburton’s intellectual disability claim. Haliburton, 163 So. 3d 509. 1. Section 921.137 prohibits the imposition of the death penalty upon the intellectually disabled and defines intellectual disability as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavio...

...3d 49, 56 n.9 (Fla. 2016). - 10 -  II. ANALYSIS Haliburton raises three issues on appeal. He asserts that the trial court erred in failing to find that he is intellectually disabled; that section 921.137(4), Florida Statutes, which requires a defendant to prove his intellectual disability by clear and convincing evidence, is unconstitutional; and that his death sentence imposed following a nonunanimous jury recommendation of death violates the Fifth, Sixth, Eighth, and Fourteenth Amendments....

...Similarly, under Florida law, “ ‘intellectual disability’ means significantly subaverage general intellectual functioning existing concurrently with deficits in - 11 - adaptive behavior and manifested during the period from conception to age 18.” § 921.137(1), Fla....

...Thus, to establish intellectual disability as a bar to execution, a defendant must demonstrate (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. Until 2014, section 921.137(1) was interpreted as requiring that a defendant have an IQ of 70 or below in order to meet the first prong of the intellectual disability standard—significantly 7....

...esent an IQ score of 70 or below precluded a finding of intellectual disability. Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007), abrogated by Hall, 572 U.S. 701. In Hall, the Supreme Court held that Florida’s “rigid rule” interpreting section 921.137(1) as establishing a strict IQ test score cutoff of 70 or less in order to present additional evidence of intellectual disability “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” 572 U.S....

...2018). We therefore find no error in the trial court’s - 17 - decision to decline to apply the Flynn effect to adjust Haliburton’s scores of 80 downward. 2. Deficits in Adaptive Behavior Section 921.137(1) defines “adaptive behavior” as “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.” This Court has further elaborated on this prong, as explained in the DSM-5 8 and the AAIDD-119: The AAIDD-11 and DSM-5 definitions are mostly similar to the statutory definition. Compare § 921.137(1), with DSM-5, at 37, and AAIDD-11, at 6, 43....

...Thus, even in cases where a trial court considers evidence of multiple prongs of the intellectual disability test, the “threshold, independent requirement [that significantly subaverage general intellectual functioning be established in accordance with section 921.137(1) once the SEM is taken into account] should not be cast aside in the name of ‘holistic review.’ ” Id....

...- 29 - assessment” of all three prongs of the standard as completed by Hall, 572 U.S. at 723, and Oats. Thus, we conclude that the trial court did not err in failing to conduct a “holistic review.” B. Section 921.137(4), Florida Statutes Haliburton also argues that he is entitled to relief because section 921.137(4), Florida Statutes (2019), which requires that defendants establish their intellectual disability by clear and convincing evidence, is unconstitutional under Atkins and the Eighth and Fourteenth Amendments to the United States C...

...preponderance of the evidence standard clearly could not be met. Thus, because we conclude that Haliburton’s claim would have failed even under the preponderance of the evidence standard, we need not address the constitutionality of the clear and convincing evidence standard in section 921.137(4)....

...The circuit court dismissed the motion as untimely, and Henry appealed the dismissal to this Court. II. ANALYSIS In this appeal, Henry asserts that he is entitled to an evaluation to determine whether he is intellectually disabled. See § 921.137, Fla....

...had an IQ of 78. Accordingly, Henry argues that the postconviction court erred in dismissing his claim of intellectual disability. We disagree. Henry is not entitled to an evidentiary hearing to determine if he is intellectually disabled. Section 921.137(1) provides that intellectual disability means “significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” Be...

...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....

...e 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....

...Kenneth Darcell Quince, a prisoner under sentence of death, appeals the trial court’s order summarily denying his renewed motion for a determination of intellectual disability as a bar to execution, which was filed under Florida Rule of Criminal Procedure 3.203 and section 921.137, Florida Statutes (2015)....

...In 2004, Quince filed a successive motion for postconviction relief under Florida Rules of Criminal Procedure 3.851 and 3.203, in which he sought to vacate his death sentence on the ground that he is intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002), and section 921.137, Florida Statutes (2003).1 In 2008, an evidentiary hearing was held, at which the trial court heard evidence regarding all three prongs of the intellectual disability standard and thereafter denied the motion based solely on Quince...

...ilure to meet the significantly subaverage general intellectual functioning prong. The denial of relief was affirmed on appeal. Quince v. State, No. SC11-2401, 2012 WL 6197458, at *1-2 (Fla. Dec. 10, 2012) (116 So. 3d 1262 (table)). 1. Section 921.137 requires a defendant to establish his or her intellectual disability by demonstrating the following three factors: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. § 921.137(1), Fla. Stat. The defendant has the burden to prove that he or she is intellectually disabled by clear and convincing evidence. § 921.137(4), Fla....

...Thus, because Quince failed to meet the significantly subaverage intellectual functioning prong (even when the SEM is taken into account), he could not have met his burden to demonstrate that he is intellectually disabled. Finally, Quince argues that section 921.137(4), Florida Statutes, which requires that defendants prove their intellectual disability by clear and convincing evidence, is unconstitutional under Atkins and the Eighth and Fourteenth Amendments to the United States Constitution,...

...preponderance of the evidence standard instead. Because we conclude that Quince’s intellectual disability claim would have failed even under the preponderance of the evidence standard, we need not address the constitutionality of the clear and convincing evidence standard of section 921.137(4), Florida Statutes....

...ourts. In addition to many exhausted claims, Thompson presented two unexhausted claims to the district court. One unex-hausted claim related to the recent passage of a Florida statute prohibiting the execution of mentally retarded people. Fla. Stat. § 921.137 (2001)....

...ion as a Bar to Imposition of Death Sentence.” As proposed, new rule 3.203 would govern procedures where a defendant charged with first-degree murder asserts mental retardation as a bar to the imposition of the death penalty under recently enacted section 921.137, Florida Statutes (2001)....

...This new definition of prior record applies to primary offenses committed on or after July 1, 2001. We approve the proposed Committee Note for publication. However, we defer consideration of proposed new rule 3.203 and will consider that proposal together with several pending cases that raise claims based on section 921.137 or the United States Supreme Court’s recent decision in Atkins v....

...rage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen. See Hurst v. State, 147 So. 3d 435, 441 (Fla. 2014) rev’d, Hurst v. Florida, 136 S. Ct. 616 (2016); § 921.137(1), Fla. Stat. The defendant has the burden to prove that he is intellectually disabled by clear and convincing evidence. Franqui v. State, 59 So. 3d 82, 92 (Fla. 2011); § 921.137(4), Fla....

...First, competent, substantial evidence supports the conclusion that Salazar established the first element of an intellectual disability determination, which requires that the person - 17 - exhibit “significantly subaverage general intellectual functioning.” § 921.137(1), Fla....

...of significantly subaverage intellectual functioning. Second, competent, substantial evidence supports the conclusion that Salazar failed to demonstrate concurrent deficits in adaptive behavior. See Dufour, 69 So. 3d at 248. As defined in section 921.137(1), the term adaptive behavior “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...

...State, 327 So. 3d 780 (Fla. 2021), the circuit court concluded that Hall was not retroactive and, thus, Hall could not provide a basis for relief. Second, on the merits, the court found that Walls failed to prove that he was intellectually disabled under section 921.137, Florida Statutes (2021)....

...Quince , 241 So.3d at 62 . That standard had not been announced by this Court at the time of the original postconviction court's decision, but the standard was driven by the statutory definition of "mental retardation" that was already in effect at that time, see § 921.137, Fla....

...isting his family; being loving to children, his family, and animals; being religious; lack of paternal guidance and bonding; childhood poverty; sexual, verbal, and physical abuse of self and family members in childhood; and being a loving father. . Section 921.137(1), Florida Statutes (2014), provides generally that for a defendant to be *866 intellectually disabled and not subject to the death penally, the defendant must prove significantly subaverage general intellectual functioning existing...

...“intellectually disabled.” See also Hall v. Florida, 134 S. Ct. 1986, 1990 (2014) (using the new terminology). -2- prongs in Florida’s statutory test for determining an intellectual disability. See § 921.137, Fla....

...s of the statutory test for intellectual disability because Oats was not diagnosed as a child, even though the applicable Florida statute requires only that the intellectual disability “manifested during the period from conception to age 18.” § 921.137(1), Fla....

...t expert”; (3) the trial court improperly curtailed Oats’s cross-examination of Dr. McClaren; (4) the trial court committed fundamental error by failing to act in a neutral manner during the evidentiary hearing; and (5) the burden of proof in section 921.137, determining whether a capital defendant is intellectually disabled, is unconstitutional....

...Atkins & Recent Supreme Court Precedent Prior to the United States Supreme Court’s 2002 holding in Atkins, Florida had already implemented a prospective prohibition on imposing the death sentence upon an intellectually disabled defendant. See ch. 2001-202, § 1, Laws of Fla. (enacting § 921.137, Fla....

...Court immediately implemented procedures to ensure that defendants could present evidence to establish whether they were intellectually disabled. In determining what constituted an intellectual disability, this Court looked to the statutory definition set forth in section 921.137(1), Florida Statutes (2002), and held that in considering whether a defendant had “subaverage intelligence,” a defendant must establish an IQ score of 70 or less....

...No doubt about that.” Thus, this evidence clearly should have been considered in the current proceeding. Finally, reversal is warranted because the circuit court applied the incorrect legal standard in analyzing whether Oats’s intellectual disability “manifested during the period from conception to age 18.” § 921.137, Fla....

...l disability before age 18 because this test was “not as good . . . as a Wechsler or Stanford-Binet” and was not suitable by itself to diagnose a person as having an intellectual disability. Contrary to the circuit court’s decision, section 921.137 requires a showing only that an intellectual disability “manifested during the period from conception to age 18.” § 921.137, Fla....

...defendant must demonstrate (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen.” Haliburton v. State, 46 Fla. L. Weekly S177, S178 (Fla. June 17, 2021); see also § 921.137, Fla....

...(2019); Fla. R. Crim. P. 3.203. “[S]ignificantly subaverage intellectual functioning” means -2- “performance that is two or more standard deviations from the mean score on a standardized intelligence test.” § 921.137(1), Fla. Stat; see also Fla....

...finding of intellectual disability.” Haliburton, 46 Fla. L. Weekly S178 (citing Cherry v. State, 959 So. 2d 702, 712-13 (Fla. 2007)). We recently explained the holding in Hall as follows: In Hall, the Supreme Court held that Florida’s “rigid rule” interpreting section 921.137(1) as establishing a strict IQ test score cutoff of 70 or less in order to present additional evidence of intellectual disability “creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.” 572 U.S. at 704, 134 S.Ct....

...Ultimately, the trial court again denied relief. On appeal, the Florida Supreme Court affirmed indicating: “We hereby affirm the post-conviction court’s denial of relief. Arbelaez did not prove that he has concurrent deficits in adaptive behavior as required by section 921.137(1), Florida Statutes (2004), and Florida Rule of Criminal Procedure 3.203(b).” Arbelaez v....

...Prior to the Atkins decision and the enactment of Rule 3.203, the State of Florida had only a statutory prohibition against the execution of mentally retarded person. 12 Rule 3.203’s definition of mental retardation is substantially identical to that of Florida Statute § 921.137 and the clinical definitions in Atkins-....

...2242 , 153 L.Ed.2d 335 ] (2002). The post-conviction court denied the motion after an evidentiary hearing. We hereby affirm the post-conviction court’s denial of relief. Arbelaez did not prove that he has concurrent deficits in adaptive behavior as required by section 921.137(1), Florida Statutes (2004), and Florida Rule of Criminal Procedure 3.203(b)....

...adaptive deficits inquiry is limited to behavior occurring before the age of eighteen. Both Florida law and our rule state that the exception to the death penalty applies to a defendant who “is mentally retarded” or “has mental retardation.” § 921.137(2), Fla....

...he was. Both the statute and our rule define mental retardation as .“significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18.” § 921.137(1), Fla....

...On other long trips, Hodges arranged travel by bus, including successfully arranging bus transfers along the way.” Id. Finally, the court again addressed the concurrent nature of adaptive deficits to subaverage intelligence in Dufour v. State, 69 So.3d 235 (Fla.2011). The definition in section 921.137 and Florida Rule of Criminal Procedure 3.203 states that the subaverage intellectual functioning must exist “concurrently” with adaptive deficits to satisfy the second prong of the definition, which this Court has interpreted to m...

...The Florida Supreme Court’s Factual Determination Arbelaez’s second claim for habeas relief is that he “meets the three requirements for a diagnosis of mental retardation, notwithstanding the unconstitutional strictures placed upon him by Fla. Stat. § 921.137 and Jones.” ([DE 1] at 66)....

...This document was provided but was not photocopied properly; pages were missing and the back side of the two-sided documents were not copied. . The pleadings and Florida law refer to the term as mentally retarded. More recent cases use the terminology intellectually disabled to note the same condition. . Section 921.137, Florida Statutes. “[Hjowever, [921.137] applies only to persons sentenced to death after the effective date of the statute in 2001.” Carroll v....

Florida Rule of Criminal Procedure 3.203 and section 921.137, Florida Statutes (2015). We have jurisdiction