author: PER CURIAM. PARIENTE, J., CANADY, J.,

text:
    Frank A. WALLS, Appellant, v. STATE of Florida, Appellee.
    No. SC15-1449.
    Supreme Court of Florida.
    Oct. 20, 2016.
    Billy H. Ñolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Northern District of Florida, Tallahassee, Florida; and
    Baya Harrison, III, Special Assistant, Capital Collateral Regional Counsel—Middle Region, Monticello, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL; and Sandra Sue Jaggard, Assistant Attorney General, Miami, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from an order summarily denying a motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. For the reasons that follow, we reverse the summary denial of Walls’ intellectual disability claim and remand for the circuit court to conduct an evidentiary hearing-under the appropriate standards.

FACTS AND PROCEDURAL HISTORY

We have described the facts of this case as follows:

Frank A. Walls was convicted of felony murder in the death of Edward Alger and premeditated and felony murder in the death of Ann Peterson in Okaloosa County in July 1987. Alger’s and Peterson’s bodies were discovered in Alger’s home when he failed to report for duty at Eglin Air Force Base. Peterson was shot twice in the head; Alger was shot three times and his throat had been cut. Alger’s feet and left wrist were also tied with a curtain cord.
Based on information given to investigators by Walls’ former roommate, who lived adjacent to the victims, a warrant was obtained to search the mobile home where Walls lived with a roommate. During the search, several items were seized that were linked to the crime scene.
After his arrest, Walls gave a statement detailing his involvement in the murders. In his confession, Walls stated that he entered the house to commit a burglary and that he deliberately woke up the two victims by knocking over a fan. Walls made Peterson tie up Alger and then Walls tied up Peterson. At some point, Alger got loose from the bindings and attacked Walls. Walls tackled Alger and cut him across the throat with a knife. However, Alger continued to struggle, knocked the knife from Walls’ hand, and bit Walls on the leg. Walls then pulled out a gun and shot Alger in the head several times. Walls untied Peterson and informed her that he did not originally intend to harm them, but Alger’s attack had changed everything. During a struggle, Walls ripped off Peterson’s clothes and shot her in the head. When Peterson continued to scream, Walls pushed her face into a pillow and shot her in the head a second time.

Walls v. State (Walls III), 926 So.2d 1156, 1161 (Fla.2006). Walls was charged with ten offenses, some of which were subsequently dismissed or reduced at trial. Walls v. State (Walls II), 641 So.2d 381, 384 (Fla.1994).

Walls pled not guilty and filed several pretrial motions, including a motion to determine his competency to stand trial. Five experts testified, three stating Walls was incompetent and two finding he was competent. The trial judge agreed with the latter two experts and held that Walls was competent to stand trial. The jury found Walls guilty of all charges submitted and later recommended life imprisonment for the murder of Alger and death for the murder of Peterson. The trial judge concurred. The conviction later was reversed and a new trial ordered.

Id. at 385 (citing Walls v. State (Walls I), 580 So.2d 131 (Fla.1991)).

At Walls’ retrial, venue was moved to Jackson County because of pretrial publicity. The State’s guilt phase evidence consisted of physical evidence, testimony by the investigating officers, testimony by a pathologist, and Walls’ taped confession, which was played for the jury. Walls presented no guilt phase case. The jury found Walls guilty on all charges—two counts of first-degree murder, burglary of a structure, armed burglary of a dwelling, and two counts of kidnapping and petit theft.
During the penalty phase, Walls presented evidence of his long history of violent and threatening behavior, his various emotional problems, and his extensive treatment for emotional problems, including placement in a class for emotionally handicapped students in elementary school and a stay in a residential youth camp for children with emotional and behavioral problems at age fifteen. A psychiatrist who had treated Walls when he was sixteen years old stated that he had placed Walls on lithium in order to control his bipolar mood disorder. However, the psychiatrist also testified that at some point Walls ceased taking the drug. A psychologist testified that Walls’ IQ had declined substantially in the years prior to trial and that Walls was impaired during the time the murder was committed.
The jury recommended the death penalty for Peterson’s murder by a unanimous vote. Because of the prior jury’s recommendation of life, double jeopardy precluded the possibility of a death penalty for Alger’s murder on retrial. See [Walls II, 641 So.2d at 386 n. 1]; see also art. I, § 9, Fla. Const. The judge sentenced Walls to death for Peterson’s murder, to a life sentence for Alger’s murder, to five years in prison for the burglary of a structure, to twenty years for the armed burglary of a dwelling, to twenty years for each of the kidnapping counts, and to two months for petit theft.

Walls III, 926 So.2d at 1162.

As to Walls’ death sentence, the judge found six aggravators: prior violent felony for the contemporaneous murder of Alger; committed during a burglary or kidnapping; committed to avoid lawful arrest; committed for pecuniary gain; the murder was especially heinous, atrocious, or cruel (HAC); and the murder was cold, calculated, and premeditated (CCP). Walls II, 641 So.2d at 386. The judge specifically rejected the existence of the statutory mental health mitigators, but found nine mitigating factors: Walls had no significant criminal history, was nineteen yeax-s old at the time of the crime, had been classified as emotionally handicapped, suffers from brain dysfunction and brain damage, functions intellectually at the level of a twelve year old because of his low IQ, confessed to the crimes and cooperated with the police, has a loving relationship with his parents and disabled sibling, is a good worker when employed, and has shown kindness to helpless people and animals. Walls III, 926 So.2d at 1162.

On direct appeal after the retrial, Walls raised nine issues:

(1) the trial court should have excused a potential juror for cause or granted the defense an additional peremptory challenge to excuse the juror; (2) the State improperly exercised peremptory challenges to dismiss two black jurors based on their race; (3) the jurors were kept in session for overtaxing hours during trial; (4) the trial coui-t gave the jury erroneous penalty phase instructions on the mitigating factors of mental disturbance, impairment, or duress and on the aggravating factors of HAC and CCP; (5) the trial court refused to provide the jury with a detailed interpretation of emotional disturbance as a mitigating factor; (6) the trial court made eirors in its findings on the aggravating factors because HAC and CCP were not proven beyond a reasonable doubt, the evidence did not support the conclusion that the murder occurred during a kidnapping, the commission during a burglary aggravating factor impermissibly doubled the pecuniary gain factor, and the avoid arrest aggravator was improper; (7) the trial court required Walls to prove the mitigating factors by a preponderance of the evidence; (8) the trial court improperly rejected expert testimony that Walls was suffering from extreme emotional disturbance and substantial impairment; and (9) the death sentence was not proportionate in his case. This Court found no error and affirmed the judgment and sentences. The United States Supreme Court subsequently denied Walls’ petition for certiorari. See Walls v. Florida, 513 U.S. 1130, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995).

Id. at 1162-63 (citation omitted).

Walls filed his initial postconviction motion in 1997, amending it later that year and again in 2001. Id. at 1163. The second amended motion raised nine claims:

(1) [Walls] was denied a fair guilt phase proceeding due to ineffective assistance of counsel, prosecutorial misconduct, and trial court error; (2)counsel conceded guilt and eligibility for the death penalty without Walls’ consent; (3) he was denied a fair penalty phase proceeding due to ineffective assistance of counsel, prosecutorial misconduct, and trial court error; (4) counsel failed to obtain an adequate mental health evaluation in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (5) his death sentence is unconstitutional because he is mentally retarded; (6) the trial court did not independently weigh the aggravating and mitigating circumstances; (7) the trial court considered inadmissible victim impact evidence; (8) the jury was improperly instructed on the aggravating factors; and (9) the cumulative effect of these procedural and substantive errors deprived him of a fair trial.

Id. at 1163 n. 1. The circuit court held an evidentiary hearing on some of Walls’ claims, but eventually denied relief on all of them. Id. at 1163-64.

Walls appealed the denial to this Court raising two claims encompassing several subclaims: the circuit court erred in (1) denying Walls’ ineffective assistance of counsel claims for counsel’s “failure to exclude and object to the admission of evidence of a possible sexual battery, failure to object to a lack of remorse argument by the prosecutor during closing argument, concession of guilt to the facts of felony murder and to the aggravating factor of commission during a burglary, and failure to object to a number of other prosecutorial comments and arguments”; and (2) denying Walls an evidentiary hearing on his other five ineffective assistance of counsel claims and his claim that his death sentence is improper because he is intellectually disabled. Id. at 1164-65, 1169-70. This Court affirmed the denial of relief as to all but Walls’ intellectual disability claim. This Court found no error in denying a hearing on that claim because this Court adopted Florida Rule of Criminal Procedure 3.203 subsequent to the circuit court’s ruling. Id. at 1174. Thus, this Court stated, “Walls may still file a rule 3.203 motion for a determination of [intellectual disability] as a bar to execution in the trial court and is entitled to an eviden-tiary hearing on that motion.” Id.

On June 23, 2006, Walls filed his first successive postconviction motion pursuant to rules 3.203 and 3.851, raising only the intellectual disability claim. On July 10, 2007, the circuit court held an evidentiary hearing at which defense expert Dr. Jethro Toomer and State expert Dr. Harry McClaren testified regarding Walls’ mental condition. The court denied relief on July 16, 2007, finding no intellectual disability because Walls’ lowest IQ score of 72 did not meet the definition of subaverage intellectual functioning then in place, which required an IQ of 70 or below. This Court affirmed, finding “no evidence that Walls has ever had an IQ of 70 or below.” Walls v. State (Walls IV), 3 So.3d 1248 (Fla.2008) (table).

On May 26, 2015, Walls filed his second successive postconviction motion, under rules 3.851 and 3.852. 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 sentence was unconstitutional under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), because the United States Supreme Court’s decision in Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), changed the definition of sub-average intellectual functioning to now include IQ scores that are 75 or below. Because Walls’ intellectual disability hearing was directed at satisfying the unconstitutional definition of an IQ that is 70 or below, Walls requested a new hearing.

The circuit court held a hearing on July 6, 2015, intending to conduct a case management conference, under Huff v. State, 622 So.2d 982 (Fla.1993), to decide whether an evidentiary hearing was necessary on Walls’ motion. However, Walls’ counsel, Harry Brody, informed the court that he was not prepared to argue the motion and was intending to withdraw from Walls’ case due to his current retired status among other issues. The State argued that because the circuit court was required to conduct the Huff hearing within ninety days of when the State filed its answer to the 3.851 motion—which was filed on June 12, 2015—the court should hear argument as to that issue only and require Brody to file a separate motion to withdraw.

As to the Huff issue, the State then asserted that the court could summarily deny Walls’ motion as a matter of law because even with the new cut-off of 75, Walls was required to demonstrate onset before age 18 and none of his IQ scores from before he turned 18 were below 75. In response, Brody presented limited argument explaining that in his opinion, Hall expressly rejected such a rigid approach and instead required courts to look at other aspects of a defendant’s background, rather than just an IQ score. The court then ended the hearing, stating it would issue its ruling in -writing, and requested that Brody move forward with filing his motion to withdraw.

On July 10, 2015, the circuit court issued its order summarily denying Walls’ second successive 3.851 motion without granting a hearing. The court did not expressly rule on whether Hall applied retroactively to Walls’ case, stating that although the Eleventh Circuit Court of Appeals had opined that Hall does not have retroactive application, the procedural history of Haliburton v. State, 163 So.3d 509 (Fla.2015) (table), at least implicitly gives retroactive application to Hall. However, the circuit court found that even if Hall were to apply, Walls would not be entitled to relief because his only IQ scores below 75 were received after he had turned 18: his scores were 102 at age 12, 101 at age 14, 72 at about age 23, and 74 at about age 40. Accordingly, the court found that Walls could not demonstrate subaverage intellectual functioning that manifested prior to age 18. In addition, the circuit court found that Walls had already received the relief Hall allows because Walls had had the benefit of an earlier hearing at which he presented evidence regarding all three prongs of the test for intellectual disability. Thus, the court found he was not entitled to another evidentiary hearing, despite the new interpretation from Hall. Walls now appeals from the circuit court’s denial of relief, arguing that the circuit court erred in (1) summarily denying the claim and (2) ruling that Walls’ intellectual disability did not manifest before age 18. Due to our ruling on the first of these two issues, we find it unnecessary to address the second issue.

ANALYSIS

Walls’ postconviction motion is based on his prior evidentiary hearing having been decided under a rule of law that has now been found unconstitutional under the Supreme Court’s decision in Hall. If Hall does not apply retroactively, Walls has no basis on which to claim relief. Therefore, we address the retroactivity of Hall first.

I. Retroactive Application of Hall

In Hall, the United States Supreme Court declared Florida’s definition of intellectual disability unconstitutional because it required an IQ score of 70 or below to demonstrate subaverage intellectual functioning. See 134 S.Ct. at 1990. Prior to the decision in Hall, a Florida defendant with an IQ score above 70 could not be deemed intellectually disabled and, therefore, was barred from presenting evidence regarding the other two prongs of the test for intellectual disability: adaptive functioning deficits and manifestation before age 18. Id. at 1994. This was true despite the medical community considering evidence of these other two prongs to be probative of intellectual disability even for individuals whose IQ scores were above 70. Id. The Supreme Court found that the mandatory IQ cutoff of 70 violated established medical practices in two ways: first, by taking “an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence,” and second, by relying on a “purportedly scientific measurement of the defendant’s abilities”—his IQ score—without recognizing that the measurement itself has an inherent margin of error, resulting in a ranged score rather than a single numerical value. Id. at 1995. The Court also held that the determination of intellectual disability is a “conjunctive and interrelated assessment” such that no single factor can be considered dispositive. Id. at 2001. Accordingly, the Court held that Florida’s strict cutoff “creates an unacceptable risk that persons with intellectual disability will be executed” in violation of Atkins and is, therefore, unconstitutional. Id. at 1990.

We must first determine whether Hall warrants retroactive application under Witt v. State, 387 So.2d 922 (Fla.1980), before deciding whether Hall applies to Walls’ case. A change in the law will only apply retroactively if the change “(a) emanates from this Court or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” Id. at 931. Developments of fundamental significance are likely to fall within one of two categories: changes of law that either “place beyond the authority of the state the power to regulate certain conduct or impose certain penalties” or are “of sufficient magnitude to necessitate retroactive application” under the retroactivity test of Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 636, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Id. at 929. It is without question that the Hall decision emanates from the United States Supreme Court and is constitutional in nature. Thus, we must determine whether Hall constitutes a development of fundamental significance. To do so, we first consider whether it is a change of law that “placets] beyond the authority of the state the power to regulate certain conduct or impose certain penalties.” Id.

The Supreme Court’s rejection of Florida’s mandatory IQ score cutoff means defendants with IQ scores that are higher than 70 must still be permitted to present evidence of all three prongs of the test for intellectual disability. The Hall decision requires courts to consider all prongs of the test in tandem. As we have recognized, this means that “if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of the other prongs.” Oats v. State, 181 So.3d 457, 467-68 (Fla.2015). The rejection of the strict IQ score cutoff increases the number of potential cases in which the State cannot impose the death penalty, while requiring a more holistic review means more defendants may be eligible for relief. Accordingly, the Hall decision removes from the state’s authority to impose death sentences more than just those cases in which the defendant has an IQ score of 70 or below. We find that Hall warrants retroactive application as a development of fundamental significance that places beyond the State of Florida the power to impose a certain sentence—the sentence of death for individuals within a broader range of IQ scores than before. Cf. Falcon v. State, 162 So.3d 954, 961-62 (Fla.2015) (rejecting State’s argument that because a Supreme Court decision only invalidated a statute as applied to a specific subgroup of people, the decision was only a procedural refinement such that retroactive application was unnecessary). Finding that Hall does apply retroactively, we next address the merits of Walls’ appeal.

II. Applying Hall to This Case

In applying Hall to Florida, we have recognized the Supreme Court’s mandate that all three prongs of the intellectual disability test be considered in tandem and that the conjunctive and interrelated nature of the test requires no single factor to be considered dispositive. Oats, 181 So.3d at 459, 467 (citing Hall 134 S.Ct. at 2001; Brumfield v. Cain, — U.S. -, 135 S.Ct. 2269, 2278-82, 192 L.Ed.2d 356 (2015)). Reviewing this ease, it is clear that although Walls has had an earlier evidentiary hearing as to intellectual disability and was allowed to present evidence of all three prongs of the test, he did not receive the type of holistic review to which he is now entitled. Also, Walls’ prior hearing was conducted under standards he could not meet because he did not have an IQ score below 70—a fact which may have affected his presentation of evidence at the hearing. Because Walls’ prior evidentiary hearing was directed toward satisfying the former definition of intellectual disability and was reviewed by the circuit court with the former IQ score cutoff rule in mind, we remand for the circuit court to conduct a new evidentiary hearing as to Walls’ claim of intellectual disability.

It is so ordered.

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

PARIENTE, J., concurs with an opinion.

PERRY, J., concurs in result.

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

PARIENTE, J.,

concurring.

I fully concur in the majority opinion that Walls is entitled to a new evidentiary hearing pursuant to Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 1990, 188 L.Ed.2d 1007 (2014). I write separately to express my belief that to fail to give Walls the benefit of Hall which disapproved of Cherry v. State, 959 So.2d 702 (Fla.2007), would result in a manifest injustice, which is an exception to the law of the ease doctrine. In State v. Owen, this Court held that it has the power to reconsider and correct erroneous rulings in exceptional circumstances, where reliance on the previous decision would result in manifest injustice, notwithstanding that such rulings have become the law of the case. 696 So.2d 715, 720 (Fla.1997). The Owen Court also held that an intervening decision by a higher court is one of the exceptional situations that this Court will consider when entertaining a request to modify the law of the case. Id.

Contrary to the dissent’s suggestions, this Court appropriately holds that Hall should be given retroactive effect. See Canady, J., dissenting op. at 351. The decision is not a mere evolutionary refinement in the law. Hall specifically held that Florida’s method for determining those who are ineligible for execution violates the Eighth Amendment:

The Florida statute, as interpreted by its courts, misuses IQ score on its own terms; and this, in turn, bars consideration of evidence that must be considered in determining whether a defendant in a capital case has an intellectual disability. Florida’s rule is invalid under the Constitution’s Cruel and Unusual Punishment Clause.

Hall, 134 S.Ct. at 2001.

Moreover, as this Court explained in Oats v. State, Hall changed the manner in which evidence of intellectual disability must be considered, stating: “[Cjourts must consider all three prongs in determining an intellectual disability, as opposed to relying on just one factor as dispositive ... because these factors are interdependent, if one of the prongs is relatively less strong, a finding of intellectual disability may still be warranted based on the strength of the other prongs.” Oats, 181 So.3d 457, 467-68 (Fla. 2015).

Militating against the “ongoing threat of major disruption to the application of the death penalty resulting from giving retroactive effect to Hall,” not all capital defendants will be entitled to relief under Hall. See Canady, J., dissenting op. at 351. As this Court determined in an unpublished Order in the case of Rodriguez v. State, those defendants who did not timely raise a claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and pursuant to Florida Rule of Criminal Procedure 3.203, should not be entitled to relief under Hall. Rodriguez, No. SC15-1278, 2016 WL 4194776 (Fla. Aug. 9, 2016). In that order, we stated:

Rodriguez, who had never before raised an intellectual disability claim, asserted that there was “good cause” pursuant to Rule 3.203(f) for his failure to assert a previous claim of intellectual disability and only after the United States Supreme Court decided Hall v. Florida [— U.S. -], 134 S.Ct. 1986 [188 L.Ed.2d 1007] (2014), did he have the basis for asserting an intellectual disability claim. The trial court rejected the motion as time barred, concluding there was no reason that Rodriguez could not have previously raised a claim of intellectual disability based on Atkins v. Virginia, 536 U.S. 304 [122 S.Ct. 2242, 153 L.Ed.2d 335] (2002). The trial court further concluded that Rodriguez could not have relied on Cherry v. State, 959 So.2d 702 (Fla.2007), which established the bright-line cut-off of 70 for IQ scores disapproved of in Hall, because he never raised an intellectual disability claim after Atkins as required by Rule 3.203.
We have considered the issues raised, and affirm the trial court's denial of Rodriguez’s motion as time-barred for the reasons stated by the trial court.

Id.

Turning to this case, the trial court relied, in part, on this Court’s decision in Cherry in denying Walls relief. The bright-line cut-off of 70 for IQ scores announced in Cherry and relied on by the trial court in Walls’ case has been explicitly rejected by the United States Supreme Court’s decision in Hall. Hall, 134 S.Ct. at 2000. Specifically, the trial court in this case denied Walls relief on his intellectual disability claim because Walls’ lowest IQ score of 72 did not meet the definition of subaverage intellectual functioning, as interpreted by Cherry. See majority op. at 344. This Court affirmed the trial court’s decision, finding “no evidence that Walls has ever had an IQ of 70 or below.” Walls v. State (Walls IV), 3 So.3d 1248 (Fla. 2008).

Because Walls’ eligibility or ineligibility for execution must be determined in accordance with the correct United States Supreme Court jurisprudence, this case is a prime example of creating a manifest injustice if we did not apply Hall to Walls. Walls has yet to have “a fair opportunity to show that the Constitution prohibits [his] execution.” Hall, 134 S.Ct. at 2001. “Uniquely, capital punishment ... connotes special concern for individual fairness because of the possible imposition of a penalty as unredeeming as death.” Witt v. State, 387 So.2d 922, 926 (Fla.1980).

More than fundamental fairness and a clear manifest injustice, the risk of executing a person who is not constitutionally able to be executed, trumps any other considerations that this Court looks to when determining if a subsequent decision of the United States Supreme Court should be applied. At stake in this case is a principle that could not be better expressed than in the words of Justice Kennedy writing for the majority in Hall:

The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution. Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world. The States are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.

134 S.Ct. at 2001. For all these reasons, I concur with the majority opinion that Walls is entitled to a new evidentiary hearing pursuant to the United States Supreme Court’s decision in Hall.

CANADY, J.,

dissenting.

The trial court’s order denying Walls’ claim should be affirmed. In reversing the trial court’s order, the majority makes three fundamental errors. First, the majority ignores a deficiency in Walls’ case— his failure to show juvenile onset—that bars him from success on his claim of intellectual disability. Second, the decision here goes on needlessly to consider Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and in the process misconstrues the holding in Hall. Third, the Court erroneously concludes that Hall should be given retroactive application.

I.

This case is easily resolvable without any discussion of the scope of Hall’s holding regarding IQ scores or consideration of whether Hall should be applied retroactively. The trial court correctly denied Walls’ intellectual disability claim because the evidence showed without dispute that as a juvenile Walls had IQ 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. Stat. (2006). This requirement of juvenile onset was not at issue and played no part in the Court’s analysis in Hall. So nothing in Hall supports the conclusion that the third prong does not remain a valid requirement of law. The third prong therefore defeats Walls’ claim. And the trial court’s rejection of the claim on that basis should be affirmed.

II.

The majority states that Hall requires that “defendants with IQ scores that are higher than 70 must still be permitted to present evidence of all three prongs of the test for intellectual disability.” Majority op. at 346. According to the majority, Hall requires that “no single factor ... be considered dispositive” but that every intellectual disability claim must instead be given “holistic review.” Majority op. at 346, 346, 347. Thus, by the reasoning of the majority, an individual with an IQ of 80, 100, 125, or 150 would nonetheless—as part of the “holistic review” process—-be entitled to present evidence of adaptive deficits to establish intellectual disability. But this is not consistent with what the Supreme Court actually decided in Hall.

Hall declared unconstitutional Florida’s “rigid rule” “defin[ing] intellectual disability to require an IQ test score of 70 or less”—a rule that failed to take into account the 5-point standard error of measurement (SEM) for IQ tests. Hall, 134 S.Ct. at 1990. The Court was crystal clear concerning the question at issue: “That strict IQ score cutoff of 70 is the issue in this case.” Id. at 1994. In line with that statement of the issue, the Court noted that “Petitioner does not question the rule in States which use a bright-line cutoff at 75 or greater.” Id. at 1996. Therefore, contrary to the majority’s mandate of “holistic review,” nothing in Hall calls into question the statutory provision that intellectual disability 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). That threshold, independent requirement should not be cast aside in the name of “holistic review.” Contrary to the majority’s reasoning, Hall recognizes that the existence of an IQ score evidencing significantly subaverage general intellectual functioning is a threshold requirement for determining whether an individual is intellectually disabled: “For professionals to diagnose—and for the law then to determine—whether an intellectual disability exists once the SEM applies and the individual’s IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning.” Hall, 134 S.Ct. at 1996 (emphasis added).

The holding of Hall is that the SEM must be taken into account in determining whether an individual is intellectually disabled. Throughout its opinion, the Court in Hall focuses on Florida’s failure to consider the SEM. And the Court repeatedly identifies that failure as the basis for its decision. The Court observed that “[t]he clinical definitions of intellectual disability, which take into account that IQ scores represent a range, not a fixed number, were a fundamental premise of Atkins[ v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002),]” and that “those clinical definitions have long included the SEM.” Id. at 1999. The Court went on to state that “[b]y failing to take into account the SEM and setting a strict cutoff at 70, Florida ‘goes against the unanimous professional consensus.’ APA Brief 15.” Id. at 2000. In line with that consensus, the Court announced its “independent assessment that an individual with an IQ test score ‘between 70 and 75 or lower,’ Atkins, supra, at 309, n. 5, 122 S.Ct. 2242, may show intellectual disability by presenting additional evidence regarding difficulties in adaptive functioning.” Id. Thus, the Court “agree[d] with the medical experts that when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 2001. The Court reiterated: “By failing to take into account the standard error of measurement, Florida’s law not only contradicts the test’s own design but also bars an essential part of a sentencing court’s inquiry into adaptive functioning.” Id. So when an individual’s IQ score is determined to be greater than 75—and the SEM thus has been taken into account—the holding of Hall has no bearing on the case.

III.

I reject the majority’s conclusion that Hall should be given retroactive application under Witt v. State, 387 So.2d 922 (Fla.1980), “as a development of fundamental significance that places beyond the State of Florida the power to impose a certain sentence.” Majority op. at 346. Contrary to the majority’s reasoning, Hall places no categorical limitation on the authority of the state to impose a sentence of death. Hall requires that the SEM of IQ tests be considered, but it does not preclude death sentences for individuals whose scores fall within the SEM. Although Hall’s IQ score fell within the SEM, the Court recognized that his score was not sufficient to establish that he was intellectually disabled: “Freddie Lee Hall may or may not be intellectually disabled, but the law requires that he have the opportunity to present evidence of his intellectual disability, including deficits in adaptive functioning over his lifetime.” Hall, 134 S.Ct. at 2001; see also In re Henry, 757 F.3d 1151, 1161 (11th Cir.2014) (holding in the context of federal habeas corpus review that Hall has no retroactive effect because it does not articulate a “rule placing a class of individuals beyond the state’s power to execute” but “merely provides new procedures for ensuring that States do not execute members of an already protected group”).

I would also conclude that Hall is not a change in the law of “fundamental significance” under the Stovall/Linkletter test adopted in Witt for determining “changes of law which are of sufficient magnitude to necessitate retroactive application.” Witt, 387 So.2d at 929, 931. This test recognizes

that the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.

Id. at 926. In Witt, the Court recognized that under this test “evolutionary refinements”—in contrast to “jurisprudential upheavals”—do not warrant retroactive application:

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Id. at 929-30. Hall represents just such an evolutionary refinement in the law. I thus would conclude that Hall should not be given retroactive effect under the Sto-vall/Linkletter test based on (a) Hall’s purpose of adjusting at the margin the definition of IQ scores that evidence significant subaverage intellectual functioning, (b) the State’s reliance on Cherry holding in numerous cases over an extended period of time, and (c) the ongoing threat of major disruption to application of the death penalty resulting from giving retroactive effect to Hall as well as similar future changes in the law regarding aspects of the definition of intellectual disability.

Finally, I would conclude that Hall does not constitute “a new substantive rule of constitutional law” for which federal law requires retroactive application. Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 729, 193 L.Ed.2d 599 (2016). The Supreme Court has explained this category of substantive rules that must be given retroactive effect:

Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State’s power to impose. It follows that when a State enforces a proscription or penalty barred by the Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by regulating “the manner of determining the defendant’s culpability.” Schriro[ v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004)]; Teague[ v. Lane, 489 U.S. 288, 313, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion)]. Those rules “merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Schriro, supra, at 352 [124 S.Ct. 2519]. Even where procedural ei-ror has infected a trial, the resulting conviction or sentence may still be accurate; and, by extension, the defendant’s continued confinement may still be lawful. For this reason, a trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant’s conviction or sentence.

Id. at 729-30. The Court thus has recognized that retroactive application is appropriate because the “possibility of a valid result does not exist where a substantive rule has eliminated a State’s power to proscribe the defendant’s conduct or impose a given punishment.” Id. at 730; see also Welch v. United States, — U.S. -, 136 S.Ct. 1257, 1266, 194 L.Ed.2d 387 (2016) (“[T]he Court has adopted certain rules that regulate capital sentencing procedures in order to enforce the substantive guarantees of the Eighth Amendment. The consistent position has been that those rules are procedural, even though their ultimate source is substantive.”).

In explaining why states should be required to give retroactive effect to such new substantive rules, the Court stated:

[T]he retroactive application of substantive rules does not implicate a State’s weighty interests in ensuring the finality of convictions and sentences. Teague warned against the intrusiveness of “continually forcing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards.” 489 U.S. at 310, 109 S.Ct. 1060. This concern has no application in the realm of substantive rules, for no resources marshaled by a State could preserve a conviction or sentence that the Constitution deprives the State of power to impose.

Montgomery, 136 S.Ct. at 732.

The change in the law accomplished by Hall does not render any sentence “by definition, unlawful.” Id. at 730. Hall “merely raise[s] the possibility” that someone found not to be intellectually disabled could be determined to be intellectually disabled. Id. (quoting Schriro, 542 U.S. at 352, 124 S.Ct. 2519). And if Hall is given retroactive application, the state will most certainly be required to “marshal resources” to sustain death sentences that have been imposed. Id. at 732 (quoting Teague, 489 U.S. at 310, 109 S.Ct. 1060). The rule adopted by Hall therefore is not a substantive rule that is required to be given retroactive effect under federal law.

POLSTON, J., concurs.

      . The term “intellectual disability” will now be used in place of "mental retardation.” See Fla. R.Crim. P. 3.203.

      . These claims were that counsel failed to present: (1) expert testimony on the effects of Ritalin, (2) a pharmacologist's testimony about the effects of Walls’ drug and alcohol use, (3) an adequate mental health evaluation including a PET scan to show brain damage, and (4) lay testimony on mitigation. Claim (5) was that counsel should have filed a motion asserting that the death penalty was barred by double jeopardy because retrial was caused by the prosecutor's misconduct. Walls III, 926 So.2d at 1169-70.

      . This rule allows death-sentenced prisoners to file motions for determination of intellectual disability even in cases where their direct appeal proceedings are final. Id. at 1174. 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. Stat. (2006).

      . Walls' IQ scores are as follows: 102 at age 12, 101 at age 14, 72 at about age 23, and 74 at approximately age 40.

      . See In re Hill, 777 F.3d 1214, 1223 (11th Cir.2015); In re Henry, 757 F.3d 1151, 1159 (11th Cir.2014).

      . In Haliburton v. Florida, — U.S. -, 135 S.Ct. 178, 190 L.Ed.2d 8 (2014), the United States Supreme Court remanded the defendant’s intellectual disability claim to this Court for reconsideration in light of Hall. On remand, this Court remanded to the trial court for an evidentiary hearing under rule 3.203. Haliburton, 163 So.3d at 509.

      . Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

      . Cherry v. State, 959 So.2d 702, 712-13 (Fla.2007) (holding that SEM need not be taken into account), cert. denied, 552 U.S. 993, 128 S.Ct. 490, 169 L.Ed.2d 344 (2007), abrogated by Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kenneth L. GRIMSLEY, Petitioner, v. Julie L. JONES, etc., Respondent.
    No. SC16-1041.
    Supreme Court of Florida.
    Nov. 23, 2016.
    Kenneth L. Grimsley, pro se, Lowell, FL, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

This case is before the Court on the petition of Kenneth L. Grimsley for a writ of habeas corpus. His petition is the twelfth extraordinary writ petition or notice he has filed with this Court since 2005. We dismissed Grimsley’s petition in this case and expressly retained jurisdiction to pursue any possible sanctions against him based upon the volume and repetitive nature of his frivolous and inappropriate filings. Grimsley v. Jones, No. SC16-1041, 2016 WL 4446496 (Fla. Order Filed Aug. 23, 2016) (unpublished); see also Fla. R.App. P. 9.410(a) (Sanctions; Court’s Motion).

Grimsley currently is incarcerated in the Florida Department of Corrections upon his judgments of conviction and sentences in case number 96-1003-CF for robbery with a firearm (Count I), aggravated battery with a firearm (Count II), and possession of a firearm by a felon (Count III), as well as violation of his probation in case numbers 90-2048-CF (attempted robbery with a deadly weapon), 90-2049-CF (robbery with a firearm), and 90-2050-CF (robbery with a firearm). On April 17, 1997, the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, sentenced Grimsley to seven years’ imprisonment for violating his probation in case numbers 90-2048-CF, 90-2049-CF, and 90-2050-CF. In case number 96-1003-CF, Grimsley was sentenced to forty years’ imprisonment as a Habitual Violent Felony Offender as to Counts I and II, and to thirty years’ imprisonment as a Habitual Violent Felony Offender as to Count III. Grimsley did not take a direct appeal.

Grimsley began filing petitions challenging his incarceration with this Court in 2005. Since that time, he has filed eleven additional extraordinary writ petitions or notices. All of his filings have pertained to his convictions and sentences in circuit court case numbers 90-2048-CF, 90-2049-CF, 90-2050-CF, and 96-1003-CF, and have been frivolous, devoid of merit, or inappropriate for consideration by this Court. We have never granted Grimsley the relief sought by him in any of his filings.

Grimsley’s habeas petition in this case clearly continues his pattern of filing frivolous pro se requests for relief. In it, Grimsley attempts to collaterally attack the legality of his convictions and sentences based on a claim that the trial court lacked jurisdiction due to fundamental errors. Such use of the writ of habeas corpus is unauthorized as, with limited exceptions, collateral postconviction challenges must be raised under Florida Rule of Criminal Procedure 3.850. See Baker v. State, 878 So.2d 1236, 1245 (Fla.2004). Moreover, Grimsley’s allegations of trial court error are not cognizable by motion under rule 3.850. See Fla. R.Crim. P. 3.850(c); see also McCrae v. State, 437 So.2d 1388, 1390 (Fla.1983). We dismissed the petition and, in accordance with State v. Spencer, 751 So.2d 47 (Fla.1999), directed Grimsley to show cause why he should not be barred from filing any future pro se requests for relief and referred to the Florida Department of Corrections for possible disciplinary action as provided in section 944.09, Florida Statutes (2016).

Grimsley filed a response to this Court’s order to show cause, opposing a pro se barring order on the basis that his prior filings were made in good faith based on his right of access to courts, that the Court did not forewarn him of potential sanctions prior to issuance of the order to show cause, and that his filings had been prepared on his behalf by prison law clerks. After considering Grimsley’s response to the show cause order, we conclude that it fails to show cause why sanctions should not be imposed. We further conclude that Grimsley’s habeas corpus petition filed in this case, which represents the ninth petition for writ of habeas corpus in which he has raised the same issues and sought the same relief, is a frivolous proceeding brought before this Court by a state prisoner. See § 944.279(1), Fla. Stat. (2016).

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Kenneth L. Grimsley that are related to case numbers 90-2048-CF, 90-2049-CF, 90-2050-CF, and 96-1003-CF, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Grimsley’s behalf if counsel determines that the proceeding may have merit and can be brought in good faith. Furthermore, because we have found Grimsley’s petition to be frivolous, we direct the Clerk of this Court, pursuant to section 944.279(1), Florida Statutes (2016), to forward a copy of this opinion to the Florida Department of Corrections’ institution or facility in which Grimsley is incarcerated.

No motion for rehearing or clarification will be entertained by the Court.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(9), Fla. Const.

        . Grimsley v. Jones, No. SC16-452, 2016 WL 1412188 (Fla. Apr. 11, 2016) (habeas petition dismissed pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004)); Grimsley v. Jones, 177 So.3d 1266 (Fla.2015) (table) (Case No. SC15-1059) (habeas petition dismissed pursuant to Pettway v. State, 776 So.2d 930, 931 (Fla.2000)); Grimsley v. Jones, 168 So.3d 225 (Fla.2015) (table) (Case No. SC15-371) (habeas petition dismissed pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004)); Grimsley v. Crews, 151 So.3d 1225 (Fla.2014) (table) (Case No. SC14-1141) (habeas petition dismissed pursuant to Pettway v. State, 776 So.2d 930, 931 (Fla.2000)); Grimsley v. State, 145 So.3d 824 (Fla.2014) (table) (Case No. SC14-950) (mandamus petition voluntarily dismissed); Grimsley v. State, Case No. SC 14-154 (Fla. Feb. 6, 2014) (habeas petition transferred); Grimsley v. McNeil, 28 So.3d 44 (Fla.2010) (table) (Case No. SC09-1855) (habeas petition dismissed pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004)); Grimsley v. McNeil, 18 So.3d 1037 (Fla.2009) (table) (Case No. SC09-1331) (habeas petition dismissed pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004)); Grimsley v. State, 954 So.2d 27 (Fla.2007) (table) (Case No. SC06-2444) (mandamus petition denied under the authority of Huffman v. State, 813 So.2d 10, 11 (Fla.2000)); Grimsley v. McDonough, 944 So.2d 344 (Fla.2006) (table) (Case No. SC06-1768) (habeas petition dismissed pursuant to Baker v. State, 878 So.2d 1236 (Fla.2004)); Grimsley v. State, 935 So.2d 1219 (Fla.2005) (table) (Case No. SC05-665) (notice administratively dismissed).

      . In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing scarce judicial resources in this Court. See, e.g., Green v. State, 190 So.3d 1026 (Fla.2016); Casey v. State, 177 So.3d 603 (Fla.2015); Clark v. Crews, 159 So.3d 122 (Fla.2014); McCutcheon v. State, 117 So.3d 769 (Fla.2013); James v. Tucker, 75 So.3d 231 (Fla.2011); Johnson v. Rundle, 59 So.3d 1080 (Fla.2011); Steele v. State, 14 So.3d 221 (Fla.2009); Pettway v. McNeil, 987 So.2d 20 (Fla.2008).


author: Forst, J.

text:
    SCHOOL BOARD OF PALM BEACH COUNTY, Appellant, v. FLORIDA CHARTER EDUCATION FOUNDATION, INC. and South Palm Beach Charter School, Appellees.
    No. 4D15-2032
    District Court of Appeal of Florida, Fourth District.
    [January 18, 2017]

      Sean Fahey, JulieAnn Rico, Shawntoyia N. Bernard, and Laura E. Pincus, West Palm Beach, for appellant,
    Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauder-dale, for appellees.
    Daniel J. Woodring of Woodring Law Firm, Tallahassee, for Amici Curiae National Alliance for Public Charter Schools, Florida Charter School Alliance, Urban League of Greater Miami, The Hispanic Council for Reform and Educational Options, Associated Industries of Florida, and The Foundation for Excellence in Education.
    Mark Miller and Christina M. Martin, Palm Beach Gardens, for Amicus Curiae Pacific Legal Foundation.
   Forst, J.

Appellant School Board of Palm Beach County (“School Board”) appeals a final order entered by the State Board of Education (“State Board”) that determined the School Board lacked good cause to deny a charter school application. The School Board also challenges the constitutionality of the charter school application appeal statute. As set forth below, we affirm the constitutionality of the charter school statute’s administrative appeal process, but reverse the State Board’s order and remand to the State Board for further proceedings necessary to comply with section 1002.33(6)(e)5., Florida Statutes (2016).

Background

Appellees Florida Charter Educational Foundation, Inc. and South Palm Beach Charter School (“Applicants”) submitted an application to the School Board to open a new charter school in Palm Beach County. The School Board mailed Applicants notice of a hearing regarding the application, noting that its district evaluators “determined that the sections [of the application] ‘Meet the Standard’ according to the Florida Charter School Application Evaluation Instrument.” At the School Board hearing reviewing the application, some School Board members acknowledged the application was legally sufficient on its face—that it met the technical requirements of the charter school statute. However, some members expressed concerns with lack of funding should another charter school operate in the county, as well as increased competition to traditional public schools. There was also concern expressed regarding the uniqueness of the proposed school’s curriculum.

Ultimately, the School Board voted unanimously to deny the application. In its decision letter to Applicants, the School Board cited two reasons for the denial: (1) a lack of innovative learning methods, and (2) the existence of an already failing charter school in the county. The School Board noted that, under the “Guiding principles; purpose” section of the charter school statute, one of the core missions of charter schools is to “[e]ncourage the use of innovative learning methods.” § 1002.33(2)(b)3., Fla. Stat. Another is to provide “diverse educational opportunities.” § 1002.33(2)(a)l., Fla. Stat. The School Board’s letter concluded that Applicants’ proposal failed to satisfy either purpose, noting that “the learning methods were not using new ideas or methods or new ideas about how learning can be done in this District.”

Applicants appealed the School Board’s denial to the State Board, pursuant to section 1002.33(6)(c), Florida Statutes. Their main argument was that the School Board was “plainly biased and acted illegally by denying the charter application” and that the board’s stated reasons were “a smokescreen for the School Board’s desire to deny the Application to save itself money.” Applicants’ challenge to the legality of the denial was that it “was not supported by competent and substantial evidence and was not a valid statutory basis for denial.” The School Board’s response filed with the State Board stated that it denied the application due to a lack of innovative educational methods and that the “strategies and programs [delineated in the application] are replicas or mirrored [sic] images of what has been practiced for more than a decade in the schools of this District.”

Initially, the appeal was presented to the Charter School Appeal Commission (“CSAC”), an advisory body that makes recommendations to the State Board concerning charter school actions. § 1002.33(6)(e)l., Fla. Stat. Following a cursory hearing, CSAC unanimously determined “that the School Board did not have competent substantial evidence to support its denial of the Charter School Application based on the Applicant’s failure to meet the standards for the Education Plan pursuant to Section 1002.33, Florida Statutes, and State Board of Education Rule 6A-6.0786, Florida Administrative Code.” Accordingly, CSAC recommended that the State Board reverse the School Board’s denial of the charter school application. CSAC did not make any factual determinations in its recommendation.

Following issuance of CSAC’s recommendation, a hearing was held before the State Board as to “[w]hether the School Board had good cause to deny the application based on Applicant’s failure to comply with Section 1002.33(6), Florida Statutes.” Without any questions or discussion, the State Board voted unanimously to reverse the School Board’s denial of the charter school application, holding that the School Board lacked good cause in denying the application. The State Board’s order stated that “[u]pon review of the evidence presented to the School Board, the [CSAC] recommendation and hearing transcripts [and] pursuant to Section 1002.33(6), Florida Statutes, it is hereby ordered that the School Board’s denial of the Charter School’s application is reversed.”

As noted above, the School Board now appeals the State Board’s order on two grounds. First, the School Board challenges the constitutionality of the charter school statute’s appeal provision, arguing it empowers the State Board, and not the School Board, to determine the creation of a charter school. Second, the School Board argues it had good cause to deny Applicants’ charter school application.

Analysis

A. The Charter School Statute’s Appeal Provision Is Constitutional

The School Board asserts that the charter school statute’s appeal provision unconstitutionally empowers the State Board to infringe upon the exclusive authority of local school boards to determine the creation of charter schools. Pursuant to article IX, section 4 of the Florida Constitution, “[t]he school board shall operate, control and supervise all free public schools within the school district.” Art. IX, § 4(b), Fla. Const. According to the School Board, by allowing the State Board to reverse actions of a local school board on appeal, the charter school statute effectively empowers the State Board to be the ultimate creator of charter schools. Specifically, the School Board takes issue with section 1002.33(6)(c), Florida Statutes, which allows for such an appeal.

We review de novo whether the charter school statute’s appeal provision is constitutional. See Fla. Dep’t of Revenue v. Gainesville, 918 So.2d 250, 256 (Fla. 2005) (“The determination of a statute’s constitutionality and the interpretation of a constitutional provision are both questions of law reviewed de novo by this Court.”). “Although our review is de novo, statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome.” Lewis v. Leon Cty., 73 So.3d 151, 153 (Fla. 2011). Thus, we presume that “the legislature intended to enact a valid law.” Id. at 153 (quoting Franklin v. State, 887 So.2d 1063, 1073 (Fla. 2004)).

We hold that the charter school statute’s appeal provision is facially constitutional. Contrary to the School Board’s argument, the State Board appeal process does not infringe upon the School Board’s constitutional power to “operate, control and supervise all free public schools within the school district.” Art. IX, § 4(b), Fla. Const, (emphasis added). The Florida Constitution provides that “[t]he state board of education shall be a body corporate and have such supervision of the system of free public education as is provided by law.” Art. IX, § 2, Fla. Const, (emphasis added). The Florida Constitution therefore creates a hierarchy under which a school board has local control, but the State Board supervises the system as a whole. This broader supervisory authority may at times infringe on a school board’s local powers, but such infringement is expressly contemplated—and in fact encouraged by the very nature of supervision—by the Florida Constitution. It is “a paramount duty of the state to make adequate provision for the education of all children within its borders.” Art. IX, § 1(a), Fla. Const, (emphasis added). The legislature’s adoption of section 1002.33(6)(c) is therefore constitutional. It is a law, enacted by the state, providing for the “supervision of the system of free public education” by the State Board, with the supervision exercised through an appellate review process related to issues involving charter schools. Art. IX, § 2, Fla. Const.

Our holding is consistent with an earlier opinion by one of our sister courts. In School Board of Volusia County v. Academies of Excellence, Inc., 974 So.2d 1186 (Fla. 5th DCA 2008), the Fifth District Court of Appeal explained:

Section 1002.33(6)(c) does not permit the State Board to open a charter school. Rather, the statute permits the State Board to approve or deny a charter application after it completes an extensive review process. Granting a charier application is not equivalent to opening a public school. The approval of an application is just the beginning of the process to open a charter school. Once the charter application has been granted, the school board still has control over the process because the applicant and the school board must agree on the provisions of the charter. See § 1002.33(6)(h), Fla. Stat. (2005). A school board can also cause a charter to be revoked or not renewed. See § 1002.33(8), Fla. Stat. (2005). Furthermore, under the Constitution of Florida, while the school board shall operate, control and supervise all free public schools within their district the State Board of Education has supervision over the system of free public education as provided by law.

Sch. Bd. of Volusia Cty., 974 So.2d at 1193 (emphases added). The Fifth District explicitly recognized that one provision in the Florida Constitution allowed school boards to create charter schools, while another provision requires that the State Board supervise local school board decisions. The responsibilities are distinct.

Other “laws, standards, and rules” demonstrate that a local school board retains its power to “operate, control and supervise” charter schools. See § 1000.03, Fla. Stat. (2016). For instance, a local school board must still negotiate with the proposed charter school to create a charter contract, and can always terminate the contract should the school later breach it. § 1002.33(7)-(8), Fla. Stat. A local school board can always initially deny an application—like in the present case—or an application renewal, should that application be deficient for failing to comply with the requirements of the charter school statute. § 1002.33(6)0»), (8), Fla. Stat. The charter school statute even provides a local school board, not the State Board, with the ability to instantly terminate a charter if there are “facts and circumstances .indicating that an immediate and serious danger to the health, safety, or welfare of the charter school’s students exists.” § 1002.33(8)(d), Fla. Stat.

The School Board’s reliance on Duval County School Board v. State, Board of Education, 998 So.2d 641 (Fla. 1st DCA 2008), is misplaced. There, the First Distinct held that section 1002.335, Florida Statutes, was facially unconstitutional because the establishment of the “Florida Schools of Excellence Commission,” an independent state-level entity that could directly authorize the creation of charter schools, “pose[d] a present total and fatal conflict with article IX, section 4 of the Florida Constitution.” Duval Cty. Sch. Bd., 998 So.2d at 644. The statute in the present case does not compare. It does not create a new state-level entity, and does not specifically imbue this entity with the power to bypass local school boards in order to independently authorize charter schools. Rather, the statute at issue here only subjects the local school boards’ authority to the State Board’s supervisory review.

The School Board’s final pertinent constitutional argument is that the charter school statute violates a local school board’s due process rights because it fails to provide the State Board with any criteria or standards when reviewing a local school board’s denial of an application. We disagree. The statute states: “If an application is denied [by a school board], the sponsor [school board] shall, within 10 calendar days after such denial, articulate in writing the specific reasons, based upon good cause, supporting its denial of the application .... ” § 1002.33(6)(b)3.a., Fla. Stat. (emphasis added). In School Board of Osceola County v. UCP of Central Florida, 905 So.2d 909 (Fla. 5th DCA 2005), the Fifth District explained that good cause “contemplates a legally sufficient réason” for the dénial. Id. at 914. Stated differently, the charter school statute requires that local school boards have a legal basis (“good cause”) for the denial. • Accordingly, the State Board reviews de novo whether the school board’s determination was supported by competent, substantial evidence that meets this “good cause” legal standard. Imhotep-Nguzo Saba Charter Sch. v. Dep’t of Educ., 947 So.2d 1279, 1285 (Fla. 4th DCA 2007).

B. The Charter School Statute Requires CSAC to Include a Fact-Based Justification in Its Recommendation to the State Board

Although the School Board’s arguments with respect to the constitutionality of the charter school statute are merit-less, we agree that CSAC (and therefore the State Board) erred by failing to include fact-based justifications in its recommendation pursuant to the charter school statute. The interpretation of a statute’s requirements is a purely legal matter subject to de novo review. Parker v. Parker, 185 So.3d 616, 618 (Fla. 4th DCA 2016). We review the State Board’s determination on the appeal of the denial of Applicants’ application for competent, substantial evidence. Imhotep-Nguzo Saba Charter Sch., 947 So.2d at 1285.

The charter school statute establishes CSAC in order to “assist the commissioner and the State Board of Education with a fair and impartial review of appeals by applicants whose charter applications have been denied.” § 1002.33(6)(e)l., Fla. Stat. In doing so, CSAC makes a written recommendation to the State Board regarding “whether the appeal should be upheld or denied and include[s] the reasons for the recommendation being offered.” § 1002.33(6)(e)2., Fla. Stat. Importantly, “[a] fact-based justification for the recommendation must be included.” § 1002.33(6)(e)5., Fla. Stat. (emphases added). The State Board “must consider the commission’s recommendation in making its decision, but is not bound by the recommendation.” § 1002.33(6)(e)2., Fla. Stat.

Here, CSAC failed to include a “fact-based justification” in its recommendation to the State Board. All the recommendation stated was “that School Board did not have competent substantial evidence to support its denial of the Charter School Application based on the Applicant’s failure to meet the standards for the Educational Plan pursuant to 1002.33 .... ” This is a legal conclusion, not a fact-based justification. CSAC was required to make factual findings, either about the application itself or the process used by the School Board in making its decision, which would have supported this conclusion. Moreover, at the required CSAC meeting, CSAC members failed to discuss the issue, ask any questions to the parties, or engage in any fact-finding before their vote. CSAC’s sole, conclusory statement in its recommendation failed to assist the State Board in making a fair and impartial review of the denial, and frustrates our review of the record. Due to the omission, we cannot meaningfully determine if the State Board’s decision was supported by competent, substantial evidence.

Accordingly, we reverse and remand this case so that CSAC can make factual determinations consistent with section 1002.33(6)(e)5., Florida Statutes. See Sch. Bd. of Palm Beach Cty. v. Survivors Charter Sch., Inc., 3 So.3d 1220, 1230 (Fla. 2009) (“The CSAC must ... include a ‘fact-based justification for the recommendation.’” (quoting § 1002.33(6)(e)5., Fla. Stat. (2005))); Sch. Bd. of Volusia Cty., 974 So.2d at 1190 (“The statute clearly states that the Commission ... must include a fact-based justification for its recommendation.”). Once CSAC has satisfied its duty of providing a “fact-based justification” for its recommendation, the State Board may adopt the recommendation or reject it. If the latter, we encourage the State Board to provide an explanation as to its determination that CSAC’s recommendation is not supported by competent, substantial evidence. Although a “fact-based justification” on the part of the State Board itself is not required by the statute, a failure to do more than summarily reject the CSAC recommendation may render appellate review of the State Board’s decision impossible. See § 1002.33(6)(d), Fla. Stat. (“The State Board of Education’s decision is ... subject to judicial review in the district court of appeal.”); Boyette v. State Prof'l Practices Council, 346 So.2d 598, 601 (Fla. 1st DCA 1977) (“[I]t is clearly our responsibility to determine whether the findings of fact and conclusions of law of the agency are supported by competent, substantial evidence and to set aside or remand action which is not so supported.”).

Conclusion

We hold the charter school statute’s appeal provision constitutional. However, because CSAC failed to adhere to the charter school statute’s specific mandate, we reverse the State Board’s order reversing the School Board’s denial of Applicants’ charter school application, and remand the case to the State Board for the purpose of having CSAC provide a fact-based justification to support its recommendation to the State Board. Once the State Board has CSAC’s revised recommendation, it may then issue a determination, accepting or rejecting the recommendation. We offer no view on the merits of Applicants’ appeal to the State Board.

Reversed and remanded.

Taylor and Klingensmith, JJ., concur.

      . We leave for another day the School Board's remaining constitutional argument, that the charter school statute also violates due process by failing to dictate whether the State Board must provide written reasons for overturning a school board’s decision. We note in passing that the statute requires only CSAC to explain such reasons. § 1002.33(6)(e)2., Fla. Stat. Although we can ■ imagine a scenario where appellate review by this Court is unduly complicated because the State Board does not adopt CSAC's reasons, and then fails to detail its own rationale for denial, that is not the situation in this case, and therefore the due process concern is not ripe. See Sch. Bd. of Polk Cty. Fla. v. Renaissance Charter Sch., Inc., 147 So.3d 1026, 1028-29 (Fla. 2d DCA 2014) (recognizing "certain deficiencies in the charter school statute”).


author: Ciklin, C.J.

text:
    Clarece NASH, Appellant, v. FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Appellee.
    No. 4D15-3574
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]

      Christina S. Gornail and Mark Richard of Phillips, Richard & Rind, P.A., Miami, for appellant.
    Michael Mattimore and Mark L. Bonfan-ti of Allen, Norton & Blue, P.A., Tallahassee, for appellee.
   Ciklin, C.J.

After a university professor’s application for promotion and tenure was denied, the parties attended arbitration. The arbitrator granted the professor relief, but the circuit court vacated the award, resulting in this appeal and cross-appeal. We agree with the circuit court that the arbitrator exceeded his authority in awarding the professor tenure, but we reverse and remand for the circuit court to direct the appellee to review the professor’s application for tenure utilizing the correct criteria. Likewise, on the cross-appeal, we reverse and remand for the circuit court to direct the appellee to review Nash’s application for promotion utilizing the correct criteria.

In 2008, the appellee, Florida Atlantic University (“the University”), hired Cla-rece Nash as an assistant professor of accounting. During Nash’s sixth year of employment, she applied for promotion to associate professor and for tenure status in the College of Business’s School of Accounting.

According to the arbitration award, Nash’s application took the following path:

[T]he Accounting Department faculty voted in favor of awarding tenure by a vote of six (6) in favor and two (2) opposed. The Director of the School of Accounting, Associate Professor Dr. Kimberly Dunn, also supported tenure. In accordance with the University’s Guidelines for Appointment, Promotion and Tenure of Faculty, Dr. Dunn issued a letter citing the criteria used to evaluate the record of the Grievant and the reasons for supporting an award of tenure.
Following the departmental review, the College Promotion and Tenure Committee reviews the criteria, the candidate’s file, and the recommendations made by both the faculty members and the chair/director. The college committee then votes and issues a written recommendation to the dean of the college. In this case, the College of Business Committee voted against tenure with a vote of two (2) faculty members in favor, and four (4) members opposed. The Dean of the College of Business reviews the aforementioned voting results and recommendations as part of the tenure review process. The Dean also considers department/school and college/university needs, and then forwards his own recommendation to the Provost.
On December 19, 2018, Daniel Gropper, Dean of the College of Business, issued his memorandum regarding the Griev-ant’s tenure application to Diane Alper-in, Vice Provost. Dean Gropper expressed his belief that a significant issue existed with respect to the Grievant’s academic research quality. Specifically, Dean Gropper felt that the Grievant’s academic articles did not represent high quality research, and instead amounted to descriptive or interpretive pieces. Dean Gropper cited the lack of publication in top quality journals as a reason for his lack of support, and in his judgment, “the totality of the quality of her academic research is the reason” that his recommendation was in the negative. Following a college dean’s recommendation, the faculty members of the University Promotion and Tenure Committee review portfolios, criteria, and prior recommendations, and then issue their own recommendation to the Provost. On January 17, 2014, the University Promotion and Tenure Committee considered the Grievant for promotion and tenure. The Grievant did not receive a single vote in her favor, and received eight (8) votes against granting tenure. The reason cited for the negative votes was “insufficient evidence of quality publications.”

Based on his independent review of Nash’s “materials and the recommendations from [Nash’s] Department, [her] Director, the College Promotion and Tenure Committee, the Dean, and the University Promotion and Tenure Committee,” the University’s provost did not recommend Nash for tenure and promotion, and the University’s president concurred.

Nash filed a grievance in which she alleged that the University violated Sections 14.2 and 15.1 of the collective bargaining agreement (“the CBA”), which governs the tenure and promotion procedure. The matter ultimately ended up in arbitration.

Nash made the following arguments:

• The University failed to follow any established criteria—including the Accounting Journals List—in evaluating the Grievant’s application for promotion and tenure.
• The School of Accounting Journal List constitutes “criteria” under Articles 14 and 15 of the CBA.
• The Dean and Provost were not familiar with the process, thereby tainting the results.
• The Grievant’s record clearly establishes that she met the established criteria for promotion and tenure.

After an evidentiary hearing, the arbitrator found in favor of Nash. In his opinion and award, the arbitrator found that the University violated Section 15.1(c) of the CBA, which stated that decisions relating to tenure shall be based on established criteria. The arbitrator found that “the overwhelming evidence points to the ‘School of Accounting Journal List’ as the criteria by which the Grievant’s research should have been measured, but clearly was not.” He also found that the University’s application of new criteria rather than established criteria violated Articles 14 and 15 of the CBA. The arbitrator directed the University to “take the appropriate action to remedy its contract violation,” to “follow the appropriate established criteria and to grant the Grievant’s application for promotion and tenure,” and to make Nash “whole for any loss of earnings or other benefits she has sustained.”

The University petitioned the circuit court to vacate the arbitration opinion and award, asserting that the arbitrator exceeded his authority under the CBA. The court vacated the opinion and award, reasoning that under the CBA, tenure could not be awarded as a remedy by the arbitrator. The trial court awarded Nash an additional year of employment, permitted Nash to reapply for tenure, and directed the University to review Nash’s application “in accordance with the collective bargaining agreement, and University policy and tenure criteria in existence during the 2013-2014 tenure application process, including the prior ‘School of Accounting Journal List.’ ” In an amended order, the court confirmed the portion of the arbitration opinion and award which directed the University to award Nash a promotion.

Nash argues on appeal that the circuit court erred in finding that the arbitrator exceeded his jurisdiction in directing the University to award her tenure.

“The trial court’s decision to confirm or vacate the arbitration award is reviewed for an abuse of extremely limited discretion.” Commc’ns Workers of Am. v. Indian River Cty. Sch. Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004). Whether an arbitrator exceeded his authority within the meaning of section 682.13, Florida Statutes, is an issue of law subject to de novo review. Visiting Nurse Ass’n of Fla., Inc. v. Jupiter Med. Ctr., Inc., 154 So.3d 1115, 1124 (Fla. 2014).

Section 682.13, Florida Statutes (2015), provides for limited grounds upon which an arbitration award may be vacated. One of those grounds is that an arbitrator has exceeded his or her power. § 682.13(l)(d). “[A]n arbitrator exceeds his or her power [] when he or she goes beyond the authority granted by the parties or the operative documents and decides an issue not pertinent to the resolution of the issue submitted to arbitration.” Commc’ns Workers of Am., 888 So.2d at 99 (alterations in original) (citation omitted).

Article 20 of the CBA provides for the “Grievance and Arbitration Procedure.” Specifically, subsections 20.8(f)(3)a.-c. provide for the arbitrator’s authority:

a. The arbitrator shall neither add to, subtract from, modify, or alter the terms or provisions of this Agreement. Arbitration shall be confined solely to the application and/or interpretation of this Agreement and the precise issue(s) submitted for arbitration. The arbitrator shall refrain from issuing any statements of opinion or conclusions not essential to the determination of the issues submitted.
b. Where an administrator has made a judgment involving the exercise of discretion, such as decisions regarding tenure or promotion, the arbitrator shall not substitute the arbitrator’s judgment for that of the administrator. Nor shall the arbitrator review such decision except for the purpose of determining whether the decision has violated this Agreement. If the arbitrator determines that the Agreement has been violated, the arbitrator shall direct the University to take appropriate action....
c. An arbitrator’s decision awarding employment beyond the sixth year shall not entitle the employee to tenure. In such cases the employee shall serve during the seventh year without further right to notice that the employee will not be offered employment thereafter. If an employee is reappointed at the direction of an arbitrator, the Provost or designee may reassign the employment during such reappointment.

Article 15 of the CBA governs tenure. Section 15.1(c)(1) addresses the criteria for tenure and provides in pertinent part that the “decision to award tenure to an employee shall be ... based on established criteria specified in writing by the Board and the University.” Section 15.1(d)(5) provides the following:

By the end of six (6) years of tenure-earning service at the University ... an employee who has applied for tenure shall either be awarded tenure by the Board or given notice that further employment will not be offered. If an employee fails to apply for tenure before or during the sixth year of tenure-earning service ... the employee’s employment will terminate at the end of the seventh year of service. ...

The parties stipulated to the following issues for arbitration: “In considering the Grievant’s application for tenure and promotion submitted in 2013 did the University violate Articles 14 and 15 of the CBA? If so, what is the appropriate remedy?” We find that the arbitrator did not exceed his authority in finding that the University violated provisions of Articles 14 and 15 of the CBA in making its tenure and promotion decision, as that was an issue before the arbitrator.

However, the arbitrator exceeded his authority in directing the University to grant Nash a promotion and tenure. Although the parties stipulated that the arbitrator would determine “the appropriate remedy” for a breach - of the CBA, the parties did not expressly place before the arbitrator the issue of whether Nash should have been granted promotion and tenure. Rather, the issue was whether the University had violated the CBA’s procedure for determining an application for tenure and promotion. It is clear to us that once the arbitrator found the University violated the procedure by not relying on established criteria, “the appropriate remedy’ was for the arbitrator to direct the University to review Nash’s application using the correct criteria.

We also find that the circuit court erred in awarding Nash an additional year of employment and in permitting Nash to reapply for promotion and tenure during that year. The court relied on section 20.8(f)(3)c. of the CBA, which provides as follows:

An arbitrator’s decision awarding employment beyond the sixth year shall not entitle the employee to tenure. In such cases the employee shall serve during the seventh year without further right to notice that the employee will not be offered employment thereafter. If an employee is reappointed at the direction of an arbitrator, the Provost or designee may reassign the employee during such reappointment.

Contrary to the University’s argument, this section does not address arbitration remedies for breaches of the CBA with respect to tenure and promotion. Rather, it addresses the effect of an arbitrator’s valid award of employment beyond the sixth year, an apparent reference to Section 9.4(d)(3), which permits an arbitrator to “award additional employment” if an employee was not provided an “equitable opportunity” in relation to other employees to meet the criteria for promotion and tenure. Rather than awarding Nash an additional year of employment and permitting Nash to reapply for tenure, the circuit court should have directed the University to review Nash’s 2013-2014 application for tenure utilizing the correct criteria.

The University cross-appeals the order on review to the extent it confirms the portion of the award directing the University to grant Nash a promotion. For the reasons previously discussed, we reverse and remand for the circuit court to direct the University to review Nash’s 2013-2014 application for promotion, this time invoking the correct criteria.

Affirmed in part, reversed in part, and remanded with instructions.

May and Kuntz, JJ., concur.

      . We note that the discussion at the hearing seems to reflect that all parties agreed that both promotion and tenure were to be vacated in the trial court's order. During this appeal, the appellant moved for extension of time and to correct a clerical mistake, which we treated as a motion for relinquishment and granted. During the relinquishment period, the trial court entered an order that vacated only the promotion and not the tenure portion of the arbitrator’s award. That is the posture in which we rule on this appeal.

      . "Equitable Opportunity” is described in the CBA as "assignments which provide equitable opportunities, in relation to other employees in the same departmenPunit, to meet the required criteria for promotion, tenure Nash never claimed that she was not given the necessary assignments to meet the required criteria for promotion and tenure.


author: Per Curiam.

text:
    Lawrence T. REID, Jr., Appellant, v. GUARDIANSHIP OF Margaret REID and James P. Dillon, Appellees.
    No. 4D15-3532
    District Court of Appeal of Florida, Fourth District.
    [February 22, 2017]

      Lawrence T. Reid, Jr, Boca Raton, pro se.
    Tara S. Pellegrino and Holly O’Neill of Broad and Cassel, West Palm Beach, for appellee James P. Dillon.
   ON MOTION FOR REHEARING AND REHEARING EN BANC

Per Curiam.

We deny appellant’s motion for rehearing and for rehearing en banc but withdraw the previously-issued opinion and substitute the following in its place:

Appellant, the son of the ward and a next of kin, challenges an order awarding attorney’s fees in a guardianship proceeding. He claims that the court determined that he did not have standing to participate in the hearing. As he had filed many requests for notification of proceedings pursuant to Florida Probate Rule 5.060(a), he was entitled to participate and assert objections. See Hayes v. Guardianship of Thompson, 952 So.2d 498, 509 (Fla. 2006) (holding that the next of kin of the ward have standing to participate in proceedings for the award of attorney’s fees in guardianship as interested persons if they have filed a request for notice of proceedings pursuant to Florida Probate Rule 5.060). Nevertheless, we must affirm pursuant to Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979), because without a transcript of the proceedings, it does not appear on the face of the record that appellant was precluded from participating in the hearing on the award of attorney’s fees. He received notice of the proceedings, but there is no record of what transpired at the hearing. The court’s later order allowing appellant to participate in proceedings does not show on the face of this record that the court refused to allow him to participate in the fees hearing, which is the subject of this appeal.

Affirmed.

Warner, Gross and Forst, JJ, concur.


text:
    Calvin JOPPY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-0981.
    District Court of Appeal of Florida, First District.
    May 5, 2015.
    Calvin Joppy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, ROWE, and SWANSON, JJ, concur.


text:
    John SWEARINGDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-146.
    District Court of Appeal of Florida, First District.
    May 12, 2015.
    Nancy A. Daniels, Public Defender, and Courtenay H. Miller, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of second-degree murder and sentenced to life in prison for stabbing a man in the head with a knife during an alcohol-fueled argument over a woman. Appellant claimed that he stabbed the victim in self-defense. There was conflicting evidence as to whether the victim or Appellant was the initial aggressor. The trial court instructed the jury that:

If the defendant was not engaged in an unlawful activity and was attacked in a place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force if he reasonably believed that it ivas necessary to do so to prevent death or great bodily harm to himself
⅜ ⅜ ⅜
However, use of deadly force is not justifiable if you find the defendant initially provoked the use of force against himself unless, one, force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger of [sic] using deadly force on [the victim] or, number two, in good faith, the defendant withdrew from physical contact with [the victim] and clearly indicated to [the victim] that he wanted to withdraw and stop the use of deadly force but [the victim] continued or resumed the use of force.

(emphasis added).

Appellant contends that the trial court committed fundamental error in giving these instructions because the portions of the instructions emphasized above negate each other with respect to his duty to retreat or not. We are compelled to agree based on Floyd v. State, 151 So.3d 452 (Fla. 1st DCA 2014), rev. granted 2014 WL 7251662 (Fla. Dec. 16, 2014), and Ross v. State, 157 So.3d 406 (Fla. 1st DCA 2015). But see Sims v. State, 140 So.3d 1000, 1003 n. 3 (Fla. 1st DCA 2014) (stating in dicta that where there is a dispute as to who was the initial aggressor, no error results from instructing the jury that the defendant both did (if he was the initial aggressor) and did not (if the victim was the initial aggressor) have a duty to retreat). Accordingly, we reverse Appellant’s judgment and sentence and remand for a new trial.

Additionally, we certify that this case passes on the same question of great public importance that we certified to the Florida Supreme Court in Floyd:

DOES FLORIDA STANDARD JURY INSTRUCTION (CRIMINAL) 3.6(F) PROVIDE CONFLICTING INSTRUCTIONS AS TO THE DUTY TO RETREAT?

Floyd v. State, Case No. 1D11-4465 (Oct, 17, 2014) (order granting Appellee’s motion to certify a question of great public importance). More specifically, the question of great public importance framed by this case is:

IN A CASE WHERE THE DEFENDANT’S SOLE DEFENSE IS SELF-DEFENSE AND THERE IS A DISPUTE AS TO WHETHER THE DEFENDANT OR THE VICTIM WAS THE INITIAL AGGRESSOR, DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR BY INSTRUCTING THE JURY BOTH (1) THAT THE DEFENDANT DID NOT HAVE A DUTY TO RETREAT AND THAT HE COULD MEET FORCE WITH DEADLY FORCE IF HE REASONABLY BELIEVED THAT IT WAS NECESSARY TO DO SO TO PREVENT DEATH OR GREAT BODILY HARM TO HIMSELF, AND (2) THAT THE DEFENDANT’S USE OF DEADLY FORCE WAS NOT JUSTIFIABLE IF HE WAS THE INITIAL AGGRESSOR UNLESS HE EXHAUSTED EVERY REASONABLE MEANS TO ESCAPE THE DANGER OTHER THAN USING DEADLY FORCE?

REVERSED and REMANDED for a new trial; QUESTION CERTIFIED.

CLARK, WETHERELL, and RAY, JJ., concur.

      . The word "of” appears to be a misstatement by the trial court or an error in transcription by the court reporter because the written instructions contained in the record track Florida Standard Jury Instruction (Criminal) 3.6(f) verbatim and read in pertinent part: "... exhausted every reasonable means to escape the danger, other than using deadly force on [the victim].... ” This discrepancy does not affect our analysis of the issue raised by Appellant.

      . Appellant did not object to the instructions at trial, but because the record does not reflect that he specifically requested or affirmatively agreed to the challenged portions of the instructions, he did not waive the issue for appeal. See Moore v. State, 114 So.3d 486, 490-93 (Fla. 1st DCA 2013); cf. Oliver v. State, 162 So.3d 162, 2015 WL 376213, 40 Fla. L. Weekly D303 (Fla. 1st DCA Jan. 29, 2015) (rejecting defendant’s argument that jury instructions were fundamentally erroneous based on Floyd because, at the charge conference, defense counsel affirmatively requested and specifically agreed to the applicable parts of the justifiable use of deadly force instructions that were to be given to the jury).

      . Based on this disposition, we need not address the other issues raised by Appellant.


text:
    Patrick A. DAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-2163.
    District Court of Appeal of Florida, First District.
    May 27, 2015.
    Patrick A. Day, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.