In The Supreme Court of Florida WILLIAM THADDEUS TURNER, Appellant, v. CASE NO. SC09-1957 STATE OF FLORIDA, Appellee. ______________________/

ON APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA

ANSWER BRIEF

BILL McCOLLUM ATTORNEY GENERAL CHARMAINE M. MILLSAPS ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0989134 OFFICE OF THE ATTORNEY GENERAL THE CAPITOL, PL-01 TALLAHASSEE, FL 32399-1050 (850) 414-3300 COUNSEL FOR THE APPELLEE

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TABLE OF CONTENTS

PAGE(S) TABLE OF CONTENTS...............................................i TABLE OF CITATIONS.............................................ii PRELIMINARY STATEMENT...........................................1 STATEMENT OF THE CASE AND FACTS.................................3 SUMMARY OF ARGUMENT............................................12 ARGUMENT.......................................................14

ISSUE I

WHETHER THE TRIAL COURT PROPERLY DENIED THE MENTAL RETARDATION CLAIM WITHOUT AN EVIDENTIARY HEARING WHERE BOTH MENTAL RETARDATION EXPERTS CONCLUDED THAT TURNER’S FULL SCALE I.Q. WAS NORMAL? (Restated) ..................................................14

Current intellectual functioning.....................19 The other two prongs.................................22 Bright-line requirement..............................24 Testing error/Flynn Effect...........................27 Otis group tests.....................................29 No evidentiary hearing required......................32

ISSUE II

WHETHER THE TRIAL COURT PROPERLY DENIED THE SECOND MOTION TO DISQUALIFY THE JUDGE AS UNTIMELY AND LEGALLY INSUFFICIENT? (Restated) ..................................................42

CONCLUSION.....................................................48 CERTIFICATE OF SERVICE.........................................48 CERTIFICATE OF FONT AND TYPE SIZE..............................49

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TABLE OF CITATIONS CASES PAGE(S) Allen v. Butterworth, 756 So.2d 52 (Fla. 2000)........................................2 Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) ...........................................................passim Barwick v. State, 660 So.2d 685 (Fla. 1995)......................................45 Bowling v. Commonwealth, 163 S.W.3d 361 (Ky. 2005)......................................25 Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979)..............28 Burns v. State, 944 So.2d 234 (Fla. 2006)................................14,19,20 Carroll v. Sec’y, Dep’t. of Corr., 574 F.3d 1354, 1366 (11th Cir. 2009) ...................2,36,37,38 Chamberlain v. State, 881 So.2d 1087 (Fla. 2004)..................................42,45 Carroll v. State, SC04-192 (Fla. May 12, 2005)(unpublished order)................36 Cherry v. State, 781 So. 2d 1040 (Fla. 2000)....................................25 Cherry v. State, 959 So.2d 702 (Fla. 2007)..................................passim Franqui v. State, 14 So.3d 238 (Fla. 2009)....................................38-39 Gilliam v. State, 582 So.2d 610 (Fla. 1991)......................................45 Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001) .................................21 Holter v. Dohnansky, 917 So.2d 242 (Fla. 5th DCA 2005) ..............................46 Howell v. State,

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151 S.W.3d 450 (Tenn. 2004)....................................27 Jackson v. State, 599 So.2d 103 (Fla. 1992)......................................45 Jones v. State, 966 So.2d 319, 325 (Fla. 2007).....................19,20,21,25,30 Kelley v. State, 3 So.3d 970 (Fla. 2009).....................................15,32 Luckey v. U.S. Dept. of Health & Human Servs., 890 F.2d 666 (4th Cir. 1989) ...................................21 Muehleman v. State, 3 So.3d 1149 (Fla. 2009).......................................47 Muncy v. Apfel, 247 F.3d 728 (8th Cir. 2001)...................................21 Nixon v. State, 2 So.3d 137 (Fla. 2009)....................................passim Overton v. State, 976 So.2d 536, 570-571 (Fla. 2007)..........................33,34 Pardo v. State, 563 So.2d 77 (Fla. 1990).......................................34 Parker v. State, 3 So.3d 974 (Fla. 2009).....................................42,44 Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)...........18 Phillips v. State, 984 So.2d 503 (Fla. 2008).......................14,18,20,27-29,31 Rivera v. State, 717 So.2d 477 (Fla. 1998)......................................45 Robertson v. State, 699 So.2d 1343 (Fla. 1997).....................................34 Rogers v. State, 954 So.2d 64, 65 (Fla. 1st DCA 2007)...........................35 Singletary v. State, 322 So.2d 551 (Fla. 1975)......................................28 State v. Sigler, 967 So.2d 835 (Fla. 2007)......................................47

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Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)............23 Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla. 2003)......................................47 Tafero v. State, 403 So.2d 355 (Fla. 1981)......................................45 Taylor v. State, 3 So.3d 986 (Fla. 2009)........................................32 Thompson v. State, 3 So.3d 1237 (Fla. 2009)....................................38-39 Tobkin v. State, 889 So.2d 120 (Fla. 4th DCA 2004) ..............................47 Ventura v. State, 2 So.3d 194, 198 (Fla. 2009)...................................33 Wright v. State, 995 So.2d 324 (Fla. 2008)......................................33 Zack v. State, 911 So.2d 1190 (Fla. 2005)..................................20,24 Zack v. State, SC05-963 (Fla. September 20, 2007)(unpublished order)..........36 CONSTITUTIONS AND STATUTES U.S. Const. Amend. VIII........................................17 Art. I, § 17, Fla. Const.......................................17 ch. 2001-202, Laws of Fla. (eff. June 12, 2001)................18 § 921.137, Fla. Stat. (2009).............................18,30,37 § 38.10, Fla. Stat. (2005).....................................44

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OTHER AUTHORITIES Rule 65B-4.032, Fla. Admin. Code...............................30 Rule 65G-4.011,Fla. Admin. Code................................30 Rule 9.210(b) Fla. R. App. Pro..................................1 Rule 3.203, Fla. R. Crim. Pro..............................passim Rule 2.330, Fla. R. Jud. Admin.................................43

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PRELIMINARY STATEMENT

Appellant, WILLIAM THADDEUS TURNER, the defendant in the trial

court, will be referred to as appellant or by his proper name.

Appellee, the State of Florida, will be referred to as the State.

Pursuant to Rule 9.210(b), Fla. R. App. P. (1997), this brief will

refer to a volume according to its respective designation within the

Index to the Record on Appeal. A citation to a volume will be followed

by any appropriate page number within the volume. The trial record

will be referred to as trial record followed by the page number. (T

at *). The symbol "IB" will refer to appellant’s initial brief and

will be followed by any appropriate page number. All double

underlined emphasis is supplied.

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STATEMENT REGARDING ORAL ARGUMENT

The State objects to oral argument in this case. This appeal

violates the provision of this Court’s rule that requires a

certification by counsel that the motion raising a mental retardation

claim be made in good faith and on reasonable grounds to believe that

the prisoner is mentally retarded. Rule 3.203(d)(4)(A) and (E).

Counsels for Turner do not, and cannot have, reasonable grounds to

believe that Turner is mentally retarded after the mental retardation

expert, recommended by them, found that their client has an I.Q. of

108. Indeed, counsel for Turner attempted to suppress Dr. Grant’s

report in violation of the rule and the trial court’s order. This

appeal is not taken in good faith.

Courts, including this one, often express frustration at the

delays in capital cases. Allen v. Butterworth, 756 So.2d 52, 65 (Fla.

2000)(stating that “this Court shares the Legislature's frustration

regarding unnecessary delay in capital cases.”). It is frivolous

appeals like this one that cause such delays. This Court should

explain that appeals such as this one could result in referrals to

the Florida Bar. This Court should not conduct an oral argument in

a frivolous appeal.

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STATEMENT OF THE CASE AND FACTS

This is an appeal in a capital case of a trial court’s summary

denial of a 3.203 motion rasing a claim of mental retardation. The

main issue is whether a trial court may deny a 3.203 motion without

an evidentiary hearing based on the experts’ written reports finding

the defendant is not mentally retarded. There were two interlocutory

appeals to this Court during the pendency of this motion in the trial

court. See docketing SC06-1359; SC08-1197. The first appeal

involved a motion to disqualify the judge and the second appeal

involved the trial court’s denial of motions to appear pro hac vice.

On November 29, 2004, Turner filed a successive postconviction

motion, pursuant to rule 3.203, asserting that he is mentally retarded

and therefore, may not be executed in accordance with Atkins v.

Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). (PC

Vol. I 1-19).1

1 The motion actually cited rule 3.850 (PC Vol. I 1). However, any motion raising a claim that the death penalty is precluded based on mental retardation is governed by rule 3.203. Capital defendants may not avoid the requirements of rule 3.202 by attempting to travel under another inapplicable rule, much less by citing the rule governing non-capital postconviction cases.

The motion raised two claims: (1) that Turner was

“ineligible for the death sentence” under Atkins due to his mental

retardation and (2) rule 3.203 violates the Eighth Amendment because

those capital defendants in the pre-trial stage have a Sixth Amendment

right to counsel to litigate claims of mental retardation; whereas,

those capital defendants in the postconviction stage do not; the rules

failure to include a standard of proof and that Turner is entitled

to a jury trial determination of mental retardation under the Sixth

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Amendment. (PC Vol. I 4-17). The State filed a response to the

3.203 motion arguing that Turner’s motion did not comply with the rule

because it failed to state whether the defendant had been examined

by a mental retardation expert and if so, had not attached that

expert’s report and did not contain a certificate of good faith and

reasonable grounds. (PC Vol. I 29-39). The State requested that Dr.

Gregory A. Prichard be appointed as one of the two mental retardation

experts required by rule 3.203. (PC Vol. I 34). The State also noted

that the 72 score relied on by Turner was not sufficient to establish

retardation because it was above the cut-off score of 70. (PC Vol.

I 36). The State cited and discussed the then recent case of Johnston

v. State, 960 So.2d 757 (Fla. 2006) in its answer. (PC Vol. I 34-36).2

2 The State agreed to an evidentiary hearing regarding the mental retardation claim but this was prior to receiving the experts written report in which both experts agreed that Turner’s I.Q. was normal.

On June 27, 2006, the trial court held a hearing on the motion.

(PC Vol. I 58-78). At the hearing, the State noted that the motion

did not comply with rule 3.203. (PC Vol. I 64). Defense counsel

agreed to file a motion in compliance with rule 3.203 within 45 days.

(PC Vol. I 66). The trial court entered a written order directing

Turner to file a motion in compliance with rule 3.203. (PC Vol. I

56-57). Turner then filed an amended motion pursuant to rule 3.203

(PC Vol. I 92-110). The amended motion contained a statement that

Turner had not been tested by an expert in mental retardation but did

not contain a certificate that the motion was made in good faith and

on reasonable grounds, as required by the rule (PC Vol. I 98).

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The State filed a motion to appoint a mental retardation expert

pursuant to rule 3.203(c)(2) requesting that Dr. Gregory A. Prichard

be appointed. (PC Vol. I 145-151, 149)3

Dr. Prichard, the State's recommended expert, submitted a report

which concluded that Turner had an average I.Q. (PC Vol. II 202-207;

352-357).

. The trial court granted the

motion. (PC Vol. I 152). Defense counsel also filed a motion to

appoint an expert in mental retardation requesting Dr. Daniel Grant

be appointed. (PC Vol. I 159-160,161-162). The trial court also

granted that motion. (PC Vol. I 184-185).

The trial court entered an order setting the dates and times for

the experts to examine the defendant. (PC Vol. I 193-195). Dr. Grant

was ordered to evaluate Turner on July 17-18, 2008 and Dr. Prichard

was ordered to evaluate Turner on July 24-25, 2008. (PC Vol. I 194).

The order required both experts “submit a written evaluation” with

copies to opposing counsel within sixty days of the evaluation. (PC

Vol. I 194).

4

3 Rule 3.203(c)(2) provides that “the court shall appoint an experts chosen by the state attorney if the state attorney so requests.”

4 There are two copies of Dr. Prichard’s report in the record on appeal because the State provided a copy of Dr. Prichard’s report to all counsel of record because many of the numerous counsel were not counsel of record at the time of Dr. Prichard’s report.

Dr. Prichard's report, dated October 23, 2008, concluded

that Turner is not mentally retarded. Dr. Prichard examined Turner

on July 24, 2008 with opposing counsel, Mr. Lohman, present. (PC Vol.

II 202). Dr. Prichard administered a WAIS III and determined

Turner's full scale I.Q. is 98. (PC Vol. II 202, 206-207). Dr.

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Prichard concluded that Turner was "a man with average intellectual

capacities" and did "not meet any of the three criteria for mental

retardation." (PC Vol. II 206-207).

The State filed a motion to compel production of the other expert’s

report. (PC Vol. IV 684-689). The motion noted that Dr. Grant’s

report was due April 23, 2009 according to the trial court’s order

and that rule 3.203(c)(3) required that the expert submit a written

report to the parties and court. The State requested that all six

counsel of record be required to comply with the good faith/

reasonable grounds certification requirement contained in rule

3.203(d)(4)(a). (PC Vol. IV 686-687). The trial court entered an

order to show cause directing Dr. Grant to personally appear and show

cause why he should not be held in contempt for failing to file his

report. (PC Vol. IV 734-735).

On June 8, 2009, Dr. Grant wrote a letter to the judge explaining

his failure to file his report. (PC Vol. V 869-870). Dr. Grant’s

written report was attached to the letter. (PC Vol. V 871-881).5

5 Dr. Grant’s report itself was not dated, however, the report was accompanied by a letter from Dr. Grant dated June 8, 2009, written in response to this Court order to show cause.

Dr.

Grant also concluded that Turner had an average I.Q. Dr. Grant’s

report concluded that Turner is “well within the average range of

intelligence.” Dr. Grant’s report referred to an Otis Form EM IQ with

a score of 72. (PC Vol. V 871). Dr. Grant also referred to a second

IQ score of 73 but he could not determine which test was given to derive

that score. (PC Vol. V 871). Dr. Grant examined Turner on July 17

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and 18, 2008 with Mr. Lohman present. (PC Vol. V 871, 875). Dr. Grant

administered an Stanford Binet Intelligence Scale - 5th ed. and

determined Turner’s full scale I.Q. is 108. (PC Vol. V 876,877). Dr.

Grant noted that there were no significant differences between

Turner’s verbal score of 109 and Turner’s nonverbal score of 107. (PC

Vol. V 876). Dr. Grant concluded that Turner’s performance on the

test “places his current intellectual/mental functioning above the

level defined as mentally retarded by Florida Rule of Criminal

Procedure 3.203(b).” (PC Vol. V 877. Dr. Grant’s report concluded

that Turner’s “current level of intellectual abilities” were “well

within the average range of intelligence.” (PC Vol. V 877).6

Six days later, on June 22, 2009, the State filed an amended motion

for summary denial of the Atkins claim which included Dr. Grant’s

On June 16, 2009, the trial court held a hearing. (PC Supp Vol.

I 3-50). At the hearing, the trial court ruled that mental

retardation experts are court experts, not confidential defense

experts. (PC Supp Vol. I 18). The trial court then directed Dr. Grant

to produce his written report and give a copy to the State. (PC Supp

Vol. I 25). The trial court discharged the show cause order regarding

Dr. Grant. (PC Supp Vol. I 25). The trial court then directed the State

to file an amended motion for summary denial of the Atkins claim

incorporating Dr. Grant’s findings within ten days. (PC Supp Vol. I

42–46).

6 Dr. Grant’s report notes that Turner was not in special education classes but also explains that Turner attended school before special education was created in 1975.

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findings. (PC Vol. V 892-905). The motion noted that both experts

agreed that Turner was not mentally retarded. (PC Vol. V 893-894).

The state noted that the experts used the two approved IQ tests -

the WAIS III and the Standard-Binet - to determine Turner’s IQ and

argued that only these tests, not the Otis Form EM, complied with the

rule and the statute. (PC Vol. V 897-898). The State also noted that

even the invalid Otis score was over the 70 cut-off which was fatal

to his Atkins claim. (PC Vol. V 898-899). The State urged the trial

court to summarily deny the 3.203 motion. (PC Vol. V 899-902). The

State argued that the claim was insufficiently pled (PC Vol. V 901).

The State also asserted that the record, which included both experts’

written reports, conclusively rebutted the claim. (PC Vol. V

901-902). The State noted that there was no dispute of any legal

consequence for the trial court to resolve. (PC Vol. V 902).

Defense counsel filed a response, asserting that it was “grossly

unjust” to deny the motion without conducting an evidentiary hearing.

(PC Vol. VI 906-1106; VII 1107-1244). The response contained

numerous exhibits.

On July 22, 2009, the trial court held a hearing on the State's

motion for summary denial of the Atkins claim. (PC Supp. Vol I 53-73).

The State discussed the Eleventh Circuit case of Carroll v. Sec’y,

Dep’t. of Corr., 574 F.3d 1354, 1366 (11th Cir. 2009), which had been

released by the Eleventh Circuit five days before the motion hearing.

(PC Supp. Vol I 58-60). After argument of counsel, the trial court

granted the State’s motion for summary denial of the Atkins claim.

(PC Supp. Vol I 69). The trial court directed the State to file a

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proposed order granting the motion for summary denial. (PC Supp. Vol

I 70).

The trial court granted the State’s motion for summary denial. (PC

Vol. VII 1286). The order directed the State to prepare a proposed

order and allowed the defense fifteen (15) days to file any

objections. The State submitted a proposed order. (PC Vol. VII

1289-1295). The defense filed objections. (PC Vol. VII 1296-1299).

On September 14, 2009, the trial court entered an “order denying

defendant’s motion to vacate judgment and sentence pursuant to rule

3.203.” (PC Vol. VIII 1307-1313). The trial court denied the mental

retardation claim without an evidentiary hearing. The trial court

noted that it appointed two experts in mental retardation as required

by rule 3.203. (PC Vol. VIII 1307). One expert concluded that

Turner’s current I.Q. was 98 and the other expert concluded Turner’s

current I.Q. was 108. (PC Vol. VIII 1307). The trial court found

Turner’s intellectual functioning was normal based on the two

expert’s written reports. (PC Vol. VIII 1307). The trial court found

the Atkins claim was meritless. (PC Vol. VIII 1307). The trial court

explained that 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” citing Nixon v. State, 2 So.3d 137, 141 (Fla. 2009).

(PC Vol. VIII 1308). To establish the first prong, a defendant must

show he has an IQ of 70 or below. (PC Vol. VIII 1308).

The trial court noted that only two IQ tests are approved by the

Department of Children and Family Services' agency for persons with

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disabilities. The two test are the (1) Stanford-Binet and the (2)

Wechsler (WAIS). (PC Vol. VIII 1309).

The trial court summarized the two experts’ written reports. (PC

Vol. VIII 1309-1310). Dr. Prichard administered a WAIS III test and

determined Turner's full scale I.Q. is 98. (PC Vol. VIII 1309). Dr.

Grant administered a Stanford Binet Intelligence Scale - 5th ed. test

and determined Turner's full scale I.Q. is 108. (PC Vol. VIII 1310).

The trial court noted that it considered only these two approved tests

in its determination of Turner’s mental retardation. (PC Vol. VIII

1310).

The trial court denied the request for an evidentiary hearing. (PC

Vol. VIII 1310). The trial court explained that there was no need for

this Court to address the other two prongs when the critical,

threshold first prong had not been established. (PC Vol. VIII 1310).

The trial court noted that there was “no factual dispute on the

critical threshold first prong” and was simply “no dispute that is

of any legal consequence for this Court to resolve.” (PC Vol. VIII

1310). The trial court concluded that the record, containing the two

experts' reports, conclusively rebut this Atkins claim.” (PC Vol.

VIII 1310).

The trial court made findings of fact and conclusions of law. (PC

Vol. VIII 1311). The trial court found Turner’s I.Q. to be between

98 and 108. (PC Vol. VIII 1311). The trial court found Turner’s I.Q.

to be “normal.” (PC Vol. VIII 1311). The trial court found Turner’s

IQ to be “significantly above 71.” (PC Vol. VIII 1311). The trial court

concluded that Turner was not mentally retarded as the term is defined

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by Florida law and therefore, Atkins did not apply. (PC Vol. VIII

1311).

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SUMMARY OF ARGUMENT

Turner is not mentally retarded. Following the strictures of rule

3.203, the trial court appointed two mental retardation experts and

received their written reports. One expert, using the WAIS-III,

determined that Turner’s full scale I.Q. is 98. The other expert,

using the Stanford-Binet, determined that Turner’s full scale I.Q.

is 108. Turner’s I.Q. is significantly above 70. Indeed,

according to Dr. Grant, the expert appointed at the recommendation

of defense, Turner’s full scale I.Q. is 108, which is close to being

one standard deviation above normal. Turner does not have

significantly subaverage general intellectual functioning. He does

not meet the definition of mental retardation in the statute and the

rule. The score Turner relies on, in an attempt to establish the

first prong, is score of 72 on an old Otis test. This score is

invalid. A score of 72 on an Otis test is not equivalent to a I.Q

score of 72. There is not a one to one correspondence between Otis

scores and I.Q. scores. Additionally, the Otis test is an invalid

group test, not an approved individual test. The two experts

appointed by the trial court, in contrast, used approved tests.

Turner’s intellectual functioning is perfectly normal and therefore,

Atkins does not apply.

Turner asserts that this Court’s bright-line, cut-off of below an

I.Q. of seventy-one (71), which fails to account for either testing

error or the Flynn Effect, is a violation of Atkins. This Court

recently rejected an invitation to recede from its bright-line,

cut-off score in Nixon v. State, 2 So.3d 137 (Fla. 2009). Moreover,

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Turner has no standing to raise either a testing error or the Flynn

Effect challenge. Even adjusting his scores for both testing error

and the Flynn Effect, Turner is not close to establishing that he has

significantly subaverage general intellectual functioning.

Furthermore, having a set I.Q. score is not a violation of the

constitutional definition of mental retardation because the Atkins

Court did not establish a particular definition of mental

retardation. There is no constitutional definition of mental

retardation. Rather, the Supreme Court, as it has done in other

areas, left the definition to the states to develop. Several other

state Supreme Courts, like this Court, have a set requirement of below

seventy-one (71) based on their respective statutes.

No evidentiary hearing was required because the two experts’

written reports finding that Turner was not mentally retarded,

conclusively rebutted the Atkins claim. There was no factual dispute

for the trial court to resolve. Both experts agreed that Turner was

not retarded. Turner asserts that a trial court must conduct an

evidentiary hearing regarding every Atkins claim but due process does

not require that an evidentiary hearing be held, as the Eleventh

Circuit recently held. Thus, the trial court properly summarily

denied the motion.

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ARGUMENT

ISSUE I WHETHER THE TRIAL COURT PROPERLY DENIED THE MENTAL RETARDATION CLAIM WITHOUT AN EVIDENTIARY HEARING WHERE BOTH MENTAL RETARDATION EXPERTS CONCLUDED THAT TURNER’S FULL SCALE I.Q. WAS NORMAL? (Restated)

Turner asserts the trial court erred in summarily denying his 3.203

motion. Following the strictures of rule 3.203, the trial court

appointed two mental retardation experts and received their written

reports. One expert, using the WAIS-III, determined that Turner’s

full scale I.Q. is 98. The other expert, using the Stanford-Binet,

determined that Turner’s full scale I.Q. is 108. Turner’s I.Q. is

significantly above 70. He does not have significantly subaverage

general intellectual functioning. Turner does not meet the

definition of mental retardation in the statute and the rule.

Turner’s intellectual functioning is perfectly normal and therefore,

Atkins does not apply. Thus, the trial court properly summarily

denied the motion.

The standard of review

Because the determination of mental retardation is a factual

question, the standard of review is competent, substantial evidence.

Burns v. State, 944 So.2d 234, 247 (Fla. 2006)(rejecting an argument

that a trial court’s determination of mental retardation should be

reviewed de novo and adopting the competent, substantial standard);

Phillips v. State, 984 So.2d 503, 509 (Fla. 2008)(employing the

competent, substantial evidence standard to review trial court’s

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decisions regarding mental retardation claims quoting Cherry v.

State, 959 So.2d 702, 712 (Fla. 2007)). The two mental retardation

experts’ written reports are competent, substantial evidence that

Turner is not mentally retarded. The mental health experts used

different tests. Dr. Prichard administered a WAIS III and determined

that Turner’s full scale I.Q. is 98. Dr. Grant, the other expert,

administered the Stanford Binet Intelligence Scale - 5th ed. and

determined that Turner’s full scale I.Q. is 108. Both experts

concluded that Turner was of normal intelligence. This is

sufficient, competent evidence.

However, whether a trial court may summarily deny a 3.203 motion

or must hold an evidentiary hearing is a question of law reviewed de

novo. Kelley v. State, 3 So.3d 970, 973 (Fla. 2009)(noting that

“because a trial court's decision whether to grant an evidentiary

hearing on a rule 3.851 motion is ultimately based on written

materials before the court, its ruling is tantamount to a pure

question of law, subject to de novo review.”).

The trial court’s ruling

The trial court denied the mental retardation claim without an

evidentiary hearing. The trial court noted that it appointed two

experts in mental retardation as required by rule 3.203. (PC Vol. VIII

1307). One expert concluded that Turner’s current I.Q. was 98 and

the other expert concluded Turner’s current I.Q. was 108. (PC Vol.

VIII 1307). The trial court found Turner’s intellectual functioning

was normal based on the two expert’s written reports. (PC Vol. VIII

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1307). The trial court found the Atkins claim was meritless. (PC Vol.

VIII 1307). The trial court explained that the 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” citing Nixon v.

State, 2 So.3d 137, 141 (Fla. 2009). (PC Vol. VIII 1308). To

establish the first prong, a defendant must show he has an IQ of 70

or below. (PC Vol. VIII 1308).

The trial court noted that only two IQ tests are approved by the

Department of Children and Family Services' agency for persons with

disabilities. The two test are the (1) Stanford-Binet and the (2)

Wechsler (WAIS). (PC Vol. VIII 1309).

The trial court summarized the two experts’ written reports. (PC

Vol. VIII 1309-1310). Dr. Prichard administered a WAIS III test and

determined Turner's full scale I.Q. is 98. (PC Vol. VIII 1309). Dr.

Grant administered a Stanford Binet Intelligence Scale - 5th ed. test

and determined Turner's full scale I.Q. is 108. (PC Vol. VIII 1310).

The trial court noted that it considered only these two approved tests

in its determination of Turner’s mental retardation. (PC Vol. VIII

1310).

The trial court denied the request for an evidentiary hearing. (PC

Vol. VIII 1310). The trial court explained that there was no need for

this Court to address the other two prongs when the critical,

threshold first prong had not been established. (PC Vol. VIII 1310).

The trial court noted that there was “no factual dispute on the

critical threshold first prong” and was simply “no dispute that is

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of any legal consequence for this Court to resolve.” (PC Vol. VIII

1310). The trial court concluded that the record, containing the two

experts' reports, conclusively rebut this Atkins claim.” (PC Vol.

VIII 1310).

The trial court made findings of fact and conclusions of law. (PC

Vol. VIII 1311). The trial court found Turner’s I.Q. to be between

98 and 108. (PC Vol. VIII 1311). The trial court found Turner’s I.Q.

to be “normal.” (PC Vol. VIII 1311). The trial court found Turner’s

IQ to be “significantly above 71.” (PC Vol. VIII 1311). The trial court

concluded that Turner was not mentally retarded as the term is defied

by Florida law and therefore, Atkins did not apply. (PC Vol. VIII

1311).

Merits

Both the United States Constitution and the Florida Constitution

forbid the infliction of “cruel and unusual punishment.” U.S. Const.

Amend. VIII ; Art. I, § 17, Fla. Const. Florida’s constitutional

provision against excessive punishment contains a conformity clause.

Art. I, § 17, Fla. Const. (providing: “The prohibition against cruel

or unusual punishment, and the prohibition against cruel and unusual

punishment, shall be construed in conformity with decisions of the

United States Supreme Court which interpret the prohibition against

cruel and unusual punishment provided in the Eighth Amendment to the

United States Constitution.”).

In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d

335 (2002), the United States Supreme Court held that the Eighth

-18-

Amendment prohibited the execution of mentally retarded persons.

The Atkins Court reasoned that the mentally retarded, while not exempt

from criminal sanctions, have diminished personal culpability. The

Atkins Court overruled its prior holding in Penry v. Lynaugh, 492 U.S.

302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). However, the Atkins Court

left the definition of mentally retarded to the States. Atkins, 536

U.S. at 317, 122 S.Ct. at 2250 (stating “[a]s was our approach in Ford

v. Wainwright, with regard to insanity, we leave to the States the

task of developing appropriate ways to enforce the constitutional

restriction upon its execution of sentences.”).

In 2001, a year prior to Atkins, the Florida Legislature enacted

a statute prohibiting imposition of the death sentence upon a mentally

retarded defendant and establishing procedures for determining

mental retardation. ch. 2001-202, Laws of Fla. (eff. June 12, 2001),

codified as § 921.137, Fla. Stat. The statute required that the

defendant meet three prongs to be classified as mentally retarded:

(1) the defendant’s IQ is two or more standard deviations from the

mean score on a standardized intelligence test; (2) a lack of adaptive

behavior and (3) onset prior to eighteenth birthday.

In 2004, in response to Atkins and the statute, this Court adopted

a rule of criminal procedure governing mental retardation as a bar

to imposition of the death penalty, rule 3.203. Phillips v. State,

984 So.2d 503, 509 (Fla. 2008)(“We adopted rule 3.203 in response 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)); Fla. R.Crim. P.

-19-

3.203(effective Oct. 1, 2004). The rule defines mental retardation

as: 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. The term “significantly subaverage general intellectual functioning,” for the purpose of this rule, 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 rule 65B-4.032 of the Florida Administrative Code. 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.

Rule 3.203(b), Fla. R. Crim. Pro. The definition of mental

retardation in the statute and the definition in the rule are the same.

Jones v. State, 966 So.2d 319, 325 (Fla. 2007)(noting that the statute

and rule contain “the same definition”). In Jones v. State, 966 So.2d

319 (Fla. 2007), this Court stated that diagnosis of mental

retardation requires three findings: (1) significantly subaverage

general intellectual functioning; (2) concurrent deficits in

adaptive behavior; and (3) onset of the condition before age 18.

Jones, 966 So.2d at 325 (citing Burns v. State, 944 So.2d 234, 245

(Fla. 2006)).

Current intellectual functioning

This Court has explained that the intellectual functioning

component must be based on current testing. Jones, 966 So.2d at 326.

This Court explained that “the question is whether a defendant ‘is’

mentally retarded, not whether he was.” This Court also noted that

-20-

“[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, 966

So.2d at 326(emphasis in original)(citing § 921.137(1), Fla. Stat.

and Fla. R.Crim. P. 3.203(b) (2005). This Court also explained that

“under the plain language of the statute, ‘significantly subaverage

general intellectual functioning’ correlates with an IQ of 70 or

below.” Jones, 966 So.2d at 329 (citing Zack v. State, 911 So.2d 1190,

1201 (Fla. 2005)).

Turner does not meet the first prong of the test - the

significantly subaverage general intellectual functioning prong.

Turner’s general intellectual functioning is not subaverage, much

less significantly subaverage. His full scale I.Q. is not below 71.

Turner’s I.Q. is between 98 and 108. Indeed, according to Dr. Grant,

Turner’s full scale I.Q. is 108, which is close to being one standard

deviation above normal. This Court has found that the defendants do

not meet this first prong with scores of 72 and 74 on I.Q. tests, much

less scores of 108 and 98 as here. Phillips v. State, 984 So.2d 503,

510-511 (Fla. 2008)(finding that IQ scores ranging from 70 to 75 did

not equate to significantly subaverage general intellectual

functioning); Jones, 966 So.2d at 329 (finding that IQ scores ranging

from 67 to 75 did not equate to significantly subaverage general

intellectual functioning); Burns v. State, 944 So.2d 234, 247 (Fla.

2006)(finding an IQ score of 74 did not equate to significantly

subaverage general intellectual functioning). Turner does not

-21-

suffer from subaverage general intellectual functioning -

significant or otherwise. His intellectual functioning is normal.

Turner is not retarded.

Turner asserts that the trial court erred by focusing on Turner’s

current intellectual functioning rather than his intellectual

functioning at the time of the crime. IB at 36-40. However, that is

this Court’s view as well. In Jones v. State, 966 So.2d 319 (Fla.

2007), this Court explained that the intellectual functioning

component must be based on current testing. Jones, 966 So.2d at 326.

This Court explained that “the question is whether a defendant ‘is’

mentally retarded, not whether he was.” Jones, 966 So.2d at 326.

Basically, Turner is asserting this Court’s decision in Jones

violates the teachings of Atkins. IB at n.6. However, the Supreme

Court in Atkins left the definition of mental retardation to the

States to formulate. The Atkins Court recognized that various

sources and research differ on who should be classified as mentally

retarded and so, left to the States the task of classification.

Atkins, 536 U.S. at 317 (‘we leave to the State[s] the task of

developing appropriate ways to enforce the constitutional

restriction upon [their] execution of sentences.’”).

Moreover, this entire argument is based on the mistaken premise

that intellectual functioning varies widely over a lifetime. This

is not true. Intellectual functioning is constant; it does not vary

over time in the absence of injury or damage to the brain. Hodges

v. Barnhart, 276 F.3d 1265, 1268-1269 (11th Cir. 2001)(finding that,

in the absence of evidence of a sudden trauma that can cause mental

-22-

retardation, IQ's remain fairly constant throughout life citing Muncy

v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001)(explaining that a person's

IQ is presumed to remain stable over time) and Luckey v. U.S. Dept.

of Health & Human Servs., 890 F.2d 666, 668 (4th Cir. 1989)(noting

that courts should assume an IQ remained constant)). Turner’s

current I.Q. is exactly what his I.Q. was at the time of the crime.

Turner’s self-education did not change his I.Q. IB at 41. A person

who is truly mentally retarded cannot educate himself out of that

condition. Indeed, that was a major part of the Supreme Court’s

reasoning in Atkins as to why the mentally retarded are not as morally

culpable as others - because retardation is a condition beyond their

control.

Counsel misreads his own cited materials. IB 41-44. What can

improve with “support” and “education” is adaptive behavior and

skills, not intellectual functioning, as the materials themselves

explain. It is the second prong that can increase, not the first

prong. The first prong of intellectual functioning does not change

with education. Turner’s intellectual functioning was, and remains,

normal. The trial court properly found that Turner’s current

intellectual functioning placed him well outside the scope of Atkins.

The other two prongs

Turner asserts that the trial court erred in considering only the

first prong and not considering the other two prongs. This Court,

however, does not address the other two prongs when the first prong

has not been established either. Cherry v. State, 959 So.2d 702, 714

-23-

(Fla. 2007)(concluding “[b]ecause 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.”); See also Johnston v. State, 960 So.2d 757, 761

(Fla. 2006)(noting that these three prongs are to be considered in

the conjunctive).

In Nixon v. State, 2 So.3d 137, 142 (Fla. 2009), this Court recently

rejected an argument that all three prongs must be addressed. Nixon

asserted that this Court had created an irrebuttable presumption

because once this Court concludes that a defendants IQ score was over

seventy, the inquiry terminates, i.e., the Court does not consider

the two other prongs of the mental retardation determination. Nixon,

2 So.3d at 142 (citing Cherry, 959 So.2d at 714). This Court

rejected this argument, explaining that, while there are three

prongs, “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.”

The trial court properly limited its conclusions and factual

findings to the critical first prong, just as this Court has done.

The trial court was merely following this Court’s established caselaw

by stopping the inquiry after the first prong.

Nor should a trial court be required to address all three prongs.

The other two prongs are a fact-intensive inquiry that would consume

significant judicial resources - all to no possible purpose because

a defendant whose I.Q. is 98 or 108 simply is not retarded.

Regardless of what Turner could establish regarding the other two

-24-

prongs, he could not possibly establish that he is retarded. In other

areas, courts are not required to address all the prongs of a multiple

pronged legal tests. Strickland v. Washington, 466 U.S. 668, 697, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984)(explaining that there “is no reason

for a court deciding an ineffective assistance claim ... to address

both components of the inquiry if the defendant makes an insufficient

showing on one.”); Downs v. State, 740 So.2d 506, 518 n. 19 (Fla.

1999)(indicating there is no need to address the prejudice prong if

the defendant has failed to establish deficient performance).

Turner provides no reason why this principle should not apply to the

three pronged mental retardation determination as well.

Bright-line requirement

Turner argues that this Court should recede from its bright-line,

cut-off score of below seventy-one (71) to establish the intellectual

functioning prong. IB at 45. Turner asserts that this Court’s

bright-line, cut-off score is a violation of Atkins. Once again,

Atkins did not constitutionalize a particular test for mental

retardation. Rather, the Supreme Court in Atkins, left the

development of tests for mental retardation, including establishing

a bright-line, cut-off score, to the states.

This Court has repeatedly held that “[u]nder 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.” Zack v. State, 911 So.2d 1190,

1201 (Fla. 2005)(finding that to be exempt from execution under

-25-

Atkins, a defendant must establish that he has an IQ of 70 or below

and rejecting an Atkins claim where the lowest I.Q. score was 79);

Nixon v. State, 2 So.3d 137, 142 (Fla. 2009)(stating: “[w]e have

consistently interpreted this definition to require a defendant

seeking exemption from execution to establish he has an IQ of 70 or

below” and concluding that a defendant who failed to demonstrate an

IQ of 70 or below was not exempted from execution on grounds of mental

retardation where the defendant’s IQ scores were 88, 80, 73, and 72);

Jones v. State, 966 So.2d 319, 329 (Fla. 2007)(“[U]nder the plain

language of the statute,‘significantly subaverage general

intellectual functioning’ correlates with an IQ of 70 or below.”);

Cherry v. State, 781 So. 2d 1040 (Fla. 2000)(accepting expert

testimony that in order to be found mentally retarded, an individual

must score 70 or below on an IQ test). The Florida Supreme Court has

noted that fourteen of the twenty-six jurisdictions with mental

retardation statutes have a cutoff of seventy or two standard

deviations below the mean. Cherry, 959 So.2d at 714, n.8. (citing

Bowling v. Commonwealth, 163 S.W.3d 361, 373-74 (Ky. 2005)).

This Court in Nixon v. State, 2 So.3d 137 (Fla. 2009), recently

rejected several challenges to its absolute requirement that the

defendant’s current I.Q. score be 70 or below. Nixon argued 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. Nixon,

2 So.3d at 142. Nixon made a number of assertions questioning this

Court's Cherry decision, all of which were “versions of his main

argument that an IQ of 70 or below should not be the standard and that

-26-

such a standard is unconstitutional.” Nixon, 2 So.3d at 142, n.5.

Nixon claimed that because the Supreme Court noted in Atkins that the

consensus in the scientific community recognizes an IQ between 70 and

75 or lower, states are only permitted to establish procedures to

determine whether a capital defendant's IQ is 75 or below on a

standardized intelligence test. This Court found the claim to be

“without merit.” Nixon, 2 So.3d at 142. The Nixon Court explained

that in Atkins, the Supreme Court recognized that various sources and

research differ on who should be classified as mentally retarded.

Accordingly, the Court left to the states the task of setting specific

rules in their statutes. Nixon, 2 So.3d at 142 (citing Atkins, 536

U.S. at 317, 122 S.Ct. 2242 (“As was our approach in Ford v.

Wainwright[, 477 U.S. 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.’”). This Court,

relying on the statutory definition, which 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,”

interpreted that language to mean “a defendant seeking exemption from

execution to establish he has an IQ of 70 or below.” Nixon, 2 So.3d

at 142 (citing § 921.137(1), Fla. Stat.).

Turner’s attack is exactly the same as Nixon’s. This Court has

recently rejected that same challenges regarding the

constitutionality of the statutory definition and the bright-line

-27-

requirements of Cherry and rejected those challenges. Turner’s

attacks are equally “without merit.” The statute and rule, as

interpreted by the Florida Supreme Court, require that a capital

defendant’s I.Q. be 70 or below or the capital defendant does not meet

the first prong of the test and Atkins does not apply.

Testing error/Flynn Effect

Turner asserts that this Court should take into account both the

standard error of measure (SEM) and the Flynn Effect in its mental

retardation jurisprudence. IB at 48-52.7

7 As in Nixon, Turner’s claims about measurement error and Flynn Effect are just versions of his main argument about the bright-line score of seventy being required.

Turner asserts that the

Court’s insistence on bright-line score of below seventy-one and its

refusal to take into account testing error and the Flynn Effect is

an unconstitutional violation of Atkins. This Court has rejected the

claim 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 noting that the statute’s plain language

does not include any adjustments. Phillips v. State, 984 So.2d 503,

510 (Fla. 2008); Cherry v. State, 959 So.2d 702, 713 (Fla.

2007)(rejecting a claim that I.Q. scores must be adjusted by a

standard error of measure because “the statute does not use the word

approximate, nor does it reference the SEM.”). Other State Supreme

Courts, likewise, have rejected measurement errors and the Flynn

-28-

Effect. Howell v. State, 151 S.W.3d 450, 458 (Tenn. 2004)(concluding

that to be considered mentally retarded, a defendant must have an I.Q.

of seventy or below because the statute makes no reference to a

standard error of measurement). Instead, these State Supreme Courts

also have bright-line, cutoff of an IQ of 70.

But even if this Court was to reconsider, yet again, receding from

its precedent regarding testing error, it cannot do so in this case.

Turner has no standing to raise a testing error or Flynn Effect claim.

Cf. Burch v. Louisiana, 441 U.S. 130, 132, n.4, 99 S.Ct. 1623, 1624,

n.4, 60 L.Ed.2d 96 (1979)(holding that one of the defendants who was

convicted by a unanimous six-person jury lacked standing to raise a

non-unanimous challenge to his conviction). This Court has refused

to address constitutional challenges associated with mental

retardation determinations when the defendant is not retarded under

either standard. Phillips v. State, 984 So.2d 503, 509, n.11 (Fla.

2008)(refusing to address the standard of proof constitutional

challenge for an Aktins claim because the particular claim of mental

retardation failed under either standard because courts should not

pass upon the constitutionality of statutes if the case in which the

question arises may be effectively disposed of on other grounds

quoting Singletary v. State, 322 So.2d 551, 552 (Fla. 1975)).

Even with the ±5 points for testing error, Turner is not even close

to mentally retarded. With the ±5 points for testing error, Turner’s

I.Q. range becomes 93 to 113 (testing error goes both ways). Counsel

argues that the range for Dr. Prichard’s score, taking into account

both the SEM and the Flynn Effect, Turner’s I.Q. range becomes 89-99.

-29-

IB at 53. But, even using this range, Turner is still not even close

to mentally retarded. Turner’s I.Q., even using this range, is still

basically in the normal range. A defendant with normal intelligence

simply may not raise these types of challenges to I.Q. testing.

Phillips, 984 So.2d at 509, n.11.

Additionally, when there are multiple I.Q. tests given,

adjustments for measurement errors are not necessary. The

additional testing itself increases accuracy. Moreover, the two

experts performed two different I.Q. tests also increasing accuracy.

Furthermore, the Flynn Effect concerns older I.Q. tests. It is used

to adjust I.Q. scores that are decades old. The two I.Q. tests given

to Turner in this case were administered in 2008. These I.Q. scores

are not decades old. Neither SEM nor the Flynn Effect are significant

in this case. This Court should not address such questions in this

case. Phillips, 984 So.2d at 509, n.11 (Fla. 2008)(refusing to address

a standard of proof challenge when there was no evidence of mental

retardation because the claim failed under either standard).

Otis group tests

The trial court considered only the two approved scores in its

determination of the first prong. Turner improperly relies on a

score of 72 on the Otis Form EM test as evidence of his retardation.

IB at 13, 53. A score of 72 on the Otis Form EM test is not equivalent

to a 72 I.Q. score. With some of the various Otis tests, scores on

-30-

Otis tests must be multipled by a factor to even approximate I.Q.8

The Otis test is not a valid testing instrument. The only two IQ

tests approved by the Department of Children and Family Services’

agency for person with disabilities are the (1) Stanford-Binet and

the (2) Wechsler (WAIS).

So, a raw score of 70 on an Otis test may well correspond to a normal

or higher than normal I.Q.

Moreover, the Otis test is a group test, not an individualized I.Q.

test. The statute requires that the test used to determine a

defendant’s I.Q. be “a standardized intelligence test specified in

the rules of the Agency for Persons with Disabilities.” § 921.137(1),

Fla. Stat. (2009). The rule requires “a standardized intelligence

test authorized by the Department of Children and Family Services in

rule 65B-4.032 of the Florida Administrative Code.” Rule 3.203(b),

Fla. R. Crim. Pro.

9

8 There are various forms of Otis tests. For example, there are Otis-Alpha; Otis-Beta; Otis-Gamma; Otis-Lennon Mental ability test and the Otis quick-scoring mental ability test. Often, the multipler is 1.5, so a 72 on this type of Otis test would be equivalent to a 108 I.Q. score. It is not clear what the correct multipler is for the Otis Form EM test.

9 Rule 65B-4.032 of the Florida Administrative Code was transferred to 65G-4.011. The rule governing that determination of mental retardation in capital felony cases: intelligence tests to be administered, rule 65G-4.011, provides:

Jones v. State, 966 So.2d 319, 329 (Fla.

(1) When a defendant convicted of a capital felony is suspected of having or determined to have mental retardation, intelligence tests to determine intellectual functioning as specified below shall be administered by a qualified professional who is authorized in accordance with Florida Statutes to perform evaluations in Florida. The test shall consist of an individually administered

-31-

2007)(noting that the WAIS is an approved test). Dr. Prichard

administered a WAIS III and Dr. Grant administered a Stanford-Binet

Intelligence Scale - 5th ed. Both of these are approved I.Q. tests.

These are the only IQ tests performed using approved I.Q. tests.

These, and only these scores, comply with the statute and the rule.

Turner was tested using both approved individualized tests - the WAIS

and the Stanford-Binet and according to both approved tests he is not

retarded. The Otis test is not one of the two approved I.Q. tests.

The one score that Turner provides in an attempt to establish that

his I.Q. is not perfectly normal is not valid. Cf. Phillips, 984 So.2d

at 511 (finding there was competent, substantial evidence that the

defendant was not mentally retarded where the trial court questioned

the validity of the one score that was below seventy-one).

Turner, not the State, has the burden of proof. Nixon v. State,

2 So.3d 137, 145 (Fla. 2009)(rejecting a claim that the State is

evaluation, which is valid and reliable for the purpose of determining intelligence. The tests specified below shall be used.

(a) The Stanford-Binet Intelligence Scale. (b) Wechsler Intelligence Scale.

(2) Notwithstanding this rule, the court, pursuant to Section 921.137, F.S., is authorized to consider the findings of the court appointed experts or any other expert utilizing individually administered evaluation procedures which provide for the use of valid tests and evaluation materials, administered and interpreted by trained personnel, in conformance with instructions provided by the producer of the tests or evaluation materials. The results of the evaluations submitted to the court shall be accompanied by the published validity and reliability data for the examination.

-32-

required to prove that a capital defendant is not mentally retarded

beyond a reasonable doubt and observing, “we have consistently held

that it is the defendant who must establish the three prongs for mental

retardation” citing Cherry, 959 So.2d at 711 and Fla. R.Crim. P.

3.203(e)). He must provide evidence that his intellectual

functioning is significantly subaverage and he cannot do so with the

Otis score. Thus, the trial court properly limited its consideration

of the test scores to the two approved scores and properly refused

to consider the Otis score.

No evidentiary hearing required

Turner asserts that an evidentiary hearing must be conducted in

every case where a 3.203 motion is filed regardless of the experts’

written reports finding the defendant is not mentally retarded. IB

at 29-36. This assertion is contrary to the rule governing

postconviction motions. Fla. R.Crim. P. 3.851(f)(5)(B)“If the

motion, files, and records in the case conclusively show that the

movant is entitled to no relief, the motion may be denied without an

evidentiary hearing.”. Nor does this Court’s caselaw require trial

courts to conduct evidentiary hearings in capital postconviction

cases when the claim is conclusively rebutted by the record. Kelley

v. State, 3 So.3d 970, 973 (Fla. 2009)(finding that an evidentiary

hearing on a Brady claim was not warranted because the record

conclusively demonstrates that Kelley is not entitled to relief);

Taylor v. State, 3 So.3d 986, 999 (Fla. 2009)(affirming summary denial

-33-

of claim and explaining that a summary denial of a claim “will be

upheld if the motion is legally insufficient or its allegations are

conclusively refuted by the record.”); Ventura v. State, 2 So.3d 194,

198 (Fla. 2009)(affirming summary denial of claim and noting the

Florida Supreme Court will uphold the summary denial of a

newly-discovered-evidence claim if the motion is legally

insufficient or its allegations are conclusively refuted by the

record).

In Wright v. State, 995 So.2d 324, 328 (Fla. 2008), this Court

rejected a claim that the trial court erred as a matter of law in

denying a 3.853 motion and a 3.851 motion without an evidentiary

hearing. This Court reasoned that because the issues raised were

determinable from the record, the trial court did not err in denying

the motions without an evidentiary hearing. Here, as in Wright, the

trial court did not err in denying the 3.203 motion without conducting

an evidentiary hearing because the issues raised were determinable

from the record.

There simply is no factual dispute for the trial court to resolve.

Trial courts are not required to conduct evidentiary hearings as

futile gestures. Rather, trial courts conduct evidentiary hearing

to resolve factual disputes. Overton v. State, 976 So.2d 536,

570-571 (Fla. 2007)(concluding that trial court did not err in

refusing to hold an evidentiary hearing on a DNA motion and observing

that Florida courts have required evidentiary hearings in 3.853

proceedings only when there is some disputed factual issue and any

factual dispute present were not material). There is no factual

-34-

dispute regarding Turner’s current intellectual functioning.

Turner’s I.Q. is between 98 and 108 according to the two mental health

experts appointed by the trial court. Both mental retardation

experts agreed that Turner is not mentally retarded. Here, as

Overton, the factual disputes highlighted by counsel are not material

to the critical determination of the first prong of the test for mental

retardation - Turner’s current intellectual functioning. The

factual disputes that Turner points out are peripheral. On the one

critical issue there is no factual dispute and therefore, no need for

an evidentiary hearing.

Turner, in the end, while not being explicit, is actually claiming

that the trial court could not rely on the experts’ written reports

without explaining why it was improper to do so. No evidentiary

hearing is required when the experts agree. Pardo v. State, 563 So.2d

77, 79 (Fla. 1990)(concluding that trial court had no duty to hold

a competency hearing because all the experts agreed that the defendant

was competent and explaining that there was no prejudice to Pardo,

as the hearing would not have benefitted him)10

10 As this Court explained in the postconviction appeal, before trial, Pardo's counsel had him examined by a clinical psychologist, Dr. Syvil Marquit, both for sanity at the time of the murders and competence to stand trial. At trial, three court-appointed experts testified at trial that Pardo was both competent to stand trial and legally sane. At trial, the defense expert, Dr. Marquit, testified that Pardo was competent to stand trial but legally insane. Pardo v. State, 941 So.2d 1057, 1060 (Fla. 2006).

; Robertson v. State,

699 So.2d 1343, 1346 (Fla. 1997), receded from on other grounds in

Delgado v. State, 776 So.2d 233 (Fla. 2000)(concluding that trial

court had no sua sponte duty to hold a competency hearing because the

-35-

defendant’s competency was not sufficiently in doubt to mandate a

hearing where both experts, in their written reports, had found

Robertson at least minimally competent to stand trial); Rogers v.

State, 954 So.2d 64, 65 (Fla. 1st DCA 2007)(requiring that a hearing

be held regarding competency to stand trial where defendant was mental

retarded when the opinions of the three experts in their written

reports conflicted, and “could be properly assessed only by a hearing

to ‘sort out’ their conflicting opinions.”). Here, as in Pardo, an

evidentiary hearing would not benefit Turner. Turner seems to be

advocating a rule that would require the trial court to conduct an

evidentiary hearing at which the experts merely would read their

reports into the record. The trial court properly relied on the

experts’ written reports to summarily deny the Atkins claim.

Turner also wants to cross-examine both experts, including his own

recommended expert, regarding the perceived flaws in their testing

at any evidentiary hearing. IB at 51,55-58. But this would be a

hollow opportunity given his burden of proof. Turner, not the State,

has the burden of proof. Nixon v. State, 2 So.3d 137, 145 (Fla.

2009)(rejecting a claim that the State is required to prove that a

capital defendant is not mentally retarded beyond a reasonable doubt

and observing, “we have consistently held that it is the defendant

who must establish the three prongs for mental retardation” citing

Cherry, 959 So.2d at 711 and Fla. R.Crim. P. 3.203(e)). Turner cannot

just criticize these experts’ methods; rather, he must produce

positive evidence that he is actually retarded to meet his burden.

Turner cannot meet this burden merely by cross-examining the experts

-36-

regarding their testing. He must provide evidence that his

intellectual functioning is significantly subaverage and he cannot

do so.

Nor is the denial of an Atkins claims without conducting an

evidentiary hearing unprecedented. This Court has affirmed several

summary denials of Atkins claims. See Michael Duane Zack v. State,

SC05-963 (Fla. September 20, 2007)(unpublished order)(affirming

summary denial of Atkins claim because “Zack has not provided any new

evidence of mental retardation and previous evidence demonstrates

that his IQ was well above the statutory required figure of 70 or

below.); Elmer Leon Carroll v. State, SC04-192 (Fla. May 12,

2005)(unpublished order).

Due process does not require an evidentiary hearing be conducted

an a claim of mental retardation. Carroll v. Sec’y, Dep’t. of Corr.,

574 F.3d 1354, 1366 (11th Cir. 2009). In Carroll, the Eleventh

Circuit reviewed an Atkins claim which had been summarily denied by

the Florida courts. There was no evidentiary hearing in state court

in Carroll. Carroll, 574 F.3d at 1364. On appeal to the Eleventh

Circuit, Carroll contended the state trial court violated his due

process rights when it summarily denied his Atkins claim of mental

retardation without an evidentiary hearing, maintaining that Florida

law required an evidentiary hearing be conducted because his Atkins

claim was legally sufficient and not conclusively refuted by the

record. Carroll, 574 F.3d at 1365. However, a state court's failure

to conduct an evidentiary hearing is not a cognizable claim in federal

habeas. Carroll, 574 F.3d at 1365-1366.

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The Eleventh Circuit also rejected a claim that Atkins itself

mandates an evidentiary hearing on the issue of mental retardation.

Carroll, 574 F.3d at 1366. The Eleventh Circuit found “no language

in Atkins, or any other decision of the Supreme Court or this Court,

to support an argument that federal law requires state courts to

conduct evidentiary hearings on every claim of mental retardation.”

Carroll, 574 F.3d at 1366.

Carroll noted he had scored less than 75 on several IQ tests; his

reading ability is at the second-grade level; his spelling ability

is at the third-grade level; his arithmetic ability is at the

fifth-grade level; and he exhibited poor adaptive behavior in his

childhood and adolescence as a basis for his claims that he was

mentally retarded. Carroll, 574 F.3d at 1366. However, the Eleventh

Circuit noted that the Florida Supreme Court had interpreted this

definition as requiring a petitioner to establish he has an IQ of 70

or below and the state trial court made factual determinations that

Carroll is not mentally retarded because he possesses an IQ of above

75. Carroll, 574 F.3d at 1367. The Eleventh Circuit noted that one

expert had estimated Carroll's IQ to be between 105 and 110. Carroll,

574 F.3d at 1368. Carroll also asserted the intellectual functioning

prong of the mental retardation inquiry is “interrelated” with the

adaptive behavior prong but the Eleventh Circuit rejected this as well

concluding intellectual functioning and adaptive behavior prongs

must each be satisfied for an individual to qualify as mentally

retarded. Carroll, 574 F.3d at 1368-1369(citing Atkins, 536 U.S. at

308 n. 3, 122 S.Ct. at 2245 n. 3 (reproducing the American Association

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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) and

Fla. Stat. § 921.137 (stating significantly subaverage general

intellectual functioning must exist concurrently with deficits in

adaptive behavior)). The Eleventh Circuit held that the state trial

court reasonably applied the controlling Supreme Court precedent of

Atkins. Carroll, 574 F.3d at 1369.

The Eleventh Circuit also rejected a request that an evidentiary

hearing be conducted in federal district court because an evidentiary

hearing was “unnecessary.” Carroll, 574 F.3d at 1369-1370. There was,

in the Eleventh Circuit word’s, “ample evidence” that Carroll was not

mentally retarded. Carroll, 574 F.3d at 1370.

Summary denials in postconviction capital cases are a matter of

routine. Turner does not explain what is so special about Atkins

claims that they are not subject to the normal standards applicable

as to when evidentiary hearing are warranted and when they are not.

There is nothing “grossly unfair” about denying an evidentiary

hearing to a capital defendant; rather, it is a standard, routine,

everyday occurrence in both Florida and federal courts. And in this

case, certainly, a defendant with a normal I.Q., or even possible

above normal I.Q., is not entitled to an evidentiary hearing.

Turner’s heavy reliance on Franqui v. State, 14 So.3d 238 (Fla.

2009) and Thompson v. State, 3 So.3d 1237 (Fla. 2009), is misplaced.

IB 31-33. In both Franqui and Thompson, this Court reversed summary

denial of Atkins claims and ordered that an evidentiary hearing be

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conducted on the issue of mental retardation. In both those cases,

the Florida Supreme Court reversed summarily denials of Atkins claims

where no experts were appointed, no contemporaneous I.Q. testing was

conducted and no expert written reports were received. The main

dispute between the majority and the dissent in both Franqui and

Thompson were whether the respective capital defendants meet the

pleading requirements. Franqui, 14 So.3d at 240 (Canady, J.,

dissenting) (concluding that the motion was facially insufficient

because “he has never alleged that there was any significantly

subaverage intellectual functioning with deficits in adaptive

behavior that was manifested during the period from conception to

age 18” which “is an essential element of a mental retardation claim

which is totally lacking in Franqui's allegations.”); Thompson, 3

So.3d at 1239 (Wells, J., dissenting)(concluding that the defendant's

motion, which alleged that his IQ was above 70, did not met the

pleading requirements of Cherry v. State, 959 So.2d 702, 712-13 (Fla.

2007)).

This case is readily distinguishable from both Franqui and

Thompson. In this case, unlike either Franqui or Thompson, the trial

court appointed two mental retardation experts and received their

written reports. There were no such expert written reports as

required by the rule in either Franqui or Thompson. Here, in contrast

to both Franqui or Thompson, the trial court did not summarily deny

the Atkins claim based on any inadequacy of the pleadings. This case

is not a matter of pleading sufficiency, Rather, the trial court in

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this case denied the Atkins claim on the merits based on the experts’

written reports. Neither Franqui nor Thompson control here.

Accordingly, the trial court properly determined that Turner was

not mentally retarded based on the two written reports of the

appointed experts without an evidentiary hearing.

Remedy

If this Court insists that an evidentiary hearing be conducted to

explore the mental retardation of a person with an I.Q. of 108, it

should remand for a limited evidentiary hearing only. Any

evidentiary hearing should be limited to the critical first prong.

Turner’s attorneys listed a slew of witnesses that they intend to call

at an evidentiary hearing in an attempt to establish the second and

third prongs of the test for mental retardation, i.e., the “adaptive

functioning” prong and the “manifestation of the condition before age

eighteen” prong. There is no point in ordering a trial court to

listen to a parade of family members, friends, neighbors, none of

which are experts on mental retardation. Turner’s attorneys’

intention to call these additional witnesses is merely a tactic to

unnecessarily expand the evidentiary hearing. The critical prong is

the first prong and that prong requires expert testimony only. Only

Drs. Prichard and Grant should testify at any future evidentiary

hearing. An evidentiary hearing, if held, should be limited to

expert testimony from the mental retardation experts regarding the

first prong.

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This Court as a matter of public policy should take this

opportunity to endorse evidentiary hearings limited to the first

prong. The State often objects to evidentiary hearings on mental

retardation claims because full evidentiary hearings take several

days, if not an entire week; whereas, limited evidentiary hearings

on just the critical first prong typically only take a few hours.

Trial courts should conduct limited evidentiary hearing on mental

retardation claims limited to the critical first prong and take only

expert testimony as to that prong, and then, if, and only if, the trial

court determines that the threshold first prong was established,

should the trial court continue the evidentiary hearing to determine

the second and third prongs or schedule the second part of the

evidentiary hearing on those additional prongs for another day. This

is sound use of limited judicial resources. This Court should not

require full evidentiary hearings that are simply not required to

properly determine whether a capital defendant is or is not

retarded.11

11 The State objects to an attorney filing an affidavit in the trial court and then referring to that affidavit as evidence in the appellate brief. The State is seeing more and more of this practice in capital cases. In the trial court, counsel puts some statement on the record and then cites to those statements on appeal as though their personal assertions are a fact in the case, which, of course, they are not. Attorney Sekel is not an expert on mental retardation. This is not competent evidence. The State refuses to address such “evidence” of mental retardation.

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ISSUE II WHETHER THE TRIAL COURT PROPERLY DENIED THE SECOND MOTION TO DISQUALIFY THE JUDGE AS UNTIMELY AND LEGALLY INSUFFICIENT? (Restated)

Turner asserts that the trial court improperly denied the second

motion to disqualify the judge as untimely and legally insufficient.

IB at 66. Turner asserts the trial court’s denial of the motions to

appear pro hac vice as a basis for the motion to disqualify. First,

the second motion to disqualify was untimely. It was not filed within

ten days of counsel learning the underlying facts as required by the

rule. Additionally, the second motion was legally insufficient

because adverse rulings are not a valid basis to disqualification the

judge. Thus, the trial court properly denied the second motion to

disqualify as untimely and legally insufficient.

Standard of review

Whether a motion to disqualify is untimely or legally insufficient

is reviewed de novo. Parker v. State, 3 So.3d 974, 982 (Fla.

2009)(citing Chamberlain v. State, 881 So.2d 1087, 1097 (Fla. 2004).

The trial court’s ruling

On February 22, 2009, Turner filed a second motion to disqualify

the judge. (PC Vol. II 210-306). The second motion to disqualify

asserted that the judge’s previously denial of unopposed motions to

appear pro hac vice, which this Court had reversed in an interlocutory

appeal, was a basis for disqualification. The State filed a response

noting that the second motion to disqualify was untimely and

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explaining adverse rulings were not a proper basis for

disqualification. (PC Vol. II 307-319). The State also filed a

proposed order denying the motion. (PC Vol. II 320-323). On March

5, 2009, the trial court denied the motion to disqualify as untimely

and legally insufficient. (PC Vol. II 324-325).

Timeliness

The second motion to disqualify was untimely. The rule of judicial

administration governing the disqualification of trial judges, rule

2.330(e), requires that the motion to disqualify be filed within ten

(10) days “after discovery of the facts constituting the grounds for

the motion.” Fla. R. Jud. Admin. Rule 2.330(e)12

12 The rule of judicial administration governing the disqualification of trial judges, rule 2.330(e), provides:

Time. A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion and shall be promptly presented to the court for an immediate ruling. Any motion for disqualification made during a hearing or trial must be based on facts discovered during the hearing or trial and may be stated on the record, provided that it is also promptly reduced to writing in compliance with subdivision (c) and promptly filed. A motion made during hearing or trial shall be ruled on immediately.

. Turner’s motion

to disqualify was based, on part, on the trial court’s denial of the

motions to appear pro hac vice. The facts that gave rise to the claim

regarding the trial court’s denial of the motions to appear pro hac

vice occurred when the trial court denied those motions in May, 2008.

The motion to disqualify on that basis was filed approximately nine

(9) months late.

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Turner argues that his motion to disqualify was timely because it

was filed within ten days of this Court’s reversal of the trial court’s

order. That is not the correct date to start the ten day clock because

the facts that Turner relies on to establish judicial bias, such as

the motions to appear pro hac vice being unopposed by the State, were

known to him when the trial court entered its order. IB at 69. That

the trial court order was, in counsel word’s “unprecedented,” was also

known when the trial court entered its order. Turner had ten days

from the trial court’s order denying the motions to appear pro hac

vice to file a timely motion to disqualify and failed to do so. The

motion to disqualify was untimely. Thus, the trial court properly

denied the motion to disqualify as untimely.

Merits

As this Court explained in Parker v. State, 3 So.3d. 974, 982 (Fla.

2009), a motion to disqualify is governed substantively by section

38.10, Florida Statutes (2005), and procedurally by Florida Rule of

Judicial Administration 2.330. The standard for viewing the legal

sufficiency of a motion to disqualify is whether the facts alleged,

which must be assumed to be true, would cause the movant to have a

well-founded fear that he or she will not receive a fair trial at the

hands of that judge. Moreover, the “fear of judicial bias must be

objectively reasonable.” Parker, 3 So.3d. at 982.

The motion to disqualify was legally insufficient because adverse

rulings are not a valid basis to disqualification. Chamberlain v.

State, 881 So.2d 1087 (Fla. 2004)(noting the fact that the judge has

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made adverse rulings in the past against the defendant . . . is

generally considered a legally insufficient reason to warrant the

judge's disqualification citing Rivera v. State, 717 So.2d 477, 481

(Fla. 1998)(quoting Jackson v. State, 599 So.2d 103, 107 (Fla.1992));

Barwick v. State, 660 So.2d 685, 691-692 (Fla.1995)(concluding that

the motion to disqualify the trial court was not legally sufficient

because the primary basis for disqualification was Barwick's

disagreement with the trial judge's rulings and explaining: “[t]he

fact that a trial judge makes an adverse ruling is not a sufficient

basis for establishing prejudice” citing Jackson v. State, 599 So.2d

103, 107 (Fla.1992); Gilliam v. State, 582 So.2d 610, 611 (Fla.1991);

and Tafero v. State, 403 So.2d 355, 361 (Fla. 1981)). Turner asserts

that this caselaw does not apply because the trial court’s order was

not a “run-of-the-mill” adverse ruling. IB at 69. There are no

degrees here. Neither a “run-of-the-mill” adverse ruling or an

“extreme” adverse ruling (whatever that is) are a legally valid basis

for a motion to the disqualify.

Turner asserts that the trial court denied the motions to appear

pro hac vice that were unopposed “with no explanation for the ruling.”

IB at 69. This may well explain why this Court found that the trial

court abused its discretion in denying the motions to appear pro hac

vice but it is still merely an adverse ruling and therefore, not a

valid basis for a motion to disqualify.13

13 The trial court’s denial of the motions to appear pro hac vice now seems prescient. The attorneys in this case are pursuing a frivolous appeal in direct violation of rule 3.302's good faith requirement. As pro hac vice admitted attorneys, the possibility of

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Turner’s reliance on Holter v. Dohnansky, 917 So.2d 242 (Fla. 5th

DCA 2005), is misplaced. IB at n.12. Holter concerned an ex parte

hearing and a sua sponte adverse order entered in the wake of that

unrecorded, ex parte hearing. There was no ex parte hearing in this

case. Indeed, part of counsels complaint against this judge and

“evidence” of his judicial bias is that they were made to appear in

person in this case. To the extent that Holter can be read as support

for the idea that an adverse ruling may be a basis for a motion to

disqualify, Holter is incorrectly decided. Adverse rulings, no

matter how adverse, are not a basis to disqualify the judge. Thus,

the trial court properly denied the motion to disqualify as untimely

and legally insufficient.

Rehearing of first motion to disqualify

Turner also asserts that this Court should reverse its prior

affirmance of the trial court’s denial of the first motion to

disqualify the judge. IB at 70; see Turner v. State, SC06-1359 (Fla.

October 12, 2007)(order denying rehearing stating that the motion to

recuse was untimely). The law of the case doctrine fully applies and

precludes this Court from reconsidering his prior ruling regarding

the first motion to disqualify. There is no manifest injustice.

Muehleman v. State, 3 So.3d 1149, 1165 (Fla. 2009)(recognizing that

this Court “has the power to reconsider and correct erroneous rulings

made in earlier appeals in exceptional circumstances and where

being referred to the Bar is not of the same magnitude as those attorneys admitted to the Florida Bar.

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reliance on the previous decision would result in manifest injustice

but concluding that the defendant had provided no basis upon which

we can conclude our prior ruling was erroneous or should be

revisited); State v. Sigler, 967 So.2d 835, 840 (Fla. 2007)(agreeing

with District Court that an illegal conviction is well within the

concept of exceptional circumstances and manifest injustice

requiring a relaxation of the law of the case doctrine). Here, as

in Muehleman, Turner provides no basis upon which we can conclude our

prior ruling was erroneous or should be revisited.

This Court did not overlook its earlier holding in Tableau Fine

Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla. 2003) when deciding

the interlocutory appeal regarding the first motion to disqualify.

The State discussed and distinguished Jacoboni in its response for

several pages, relying on Tobkin v. State, 889 So.2d 120 (Fla. 4th

DCA 2004) and pointing out that the judge in this case is a retired

Senior Judge without chambers. See State’s response in SC06-1359 at

7-9. A motion to disqualify that is not received by the judge is not

deemed granted. Turner’s request is really a successive, untimely,

motion for rehearing that raises the exact same arguments and caselaw

made in the first appeal.

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CONCLUSION

The State respectfully requests that this Honorable Court affirm

the trial court’s summary denial of the 3.203 motion.

Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL ____________________________ CHARMAINE M. MILLSAPS ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0989134 OFFICE OF THE ATTORNEY GENERAL THE CAPITOL, PL-01 TALLAHASSEE, FL 32399-1050 (850) 414-3300 COUNSEL FOR THE STATE

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing ANSWER

BRIEF has been furnished by U.S. Mail to James C. Lohman, 1806 East

39th Street, Austin TX 78722; Amber Lauren Rumancik, Foley & Lardner,

L.L.P. One Independent Drive, Suite 1300, Jacksonville, FL

32202-5017; John Hamilton, Foley & Lardner, 111 North Orange Avenue,

Suite 1800, Orlando, FL 32801-2386; Samantha Powers, Foley & Lardner,

111 North Orange Avenue, Suite 1800, Orlando, FL 32801-2386; Todd C.

Norbitz, Foley & Lardner, 90 Park Avenue, New York, NY 10016 and Anne

B. Sekel, Foley & Lardner, 90 Park Avenue, New York, NY 10016 this

29th of January, 2010. ________________________________ Charmaine M. Millsaps Attorney for the State of Florida

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CERTIFICATE OF FONT AND TYPE SIZE

Counsel certifies that this brief was typed using Courier New

12 point font. ________________________________ Charmaine M. Millsaps Attorney for the State of Florida