Opinion
CASE NO.: SC12-893 Lower Tribunal No.: 81-5015 CFA 02 Lower Tribunal No.: 82-1893 CFA 02
07-18-2013
JERRY LEON HALIBURTON Appellant(s) v. STATE OF FLORIDA Appellee(s)
Jerry Leon Haliburton, a prisoner under sentence of death, appeals the denial of a motion to vacate his death sentence on the ground that he is mentally retarded. We previously affirmed Haliburton's conviction and death sentence on direct appeal. Haliburton v. State, 561 So. 2d 248 (Fla. 1990). We also affirmed the denial of his initial motion for postconviction relief and petition for a writ of habeas corpus, Haliburton v. Singletary, 691 So. 2d 466 (Fla. 1997), and ultimately denied a subsequent motion for postconviction relief, Haliburton v. State, 935 So. 2d 1219 (Fla. 2006) (table). On September 19, 2006, relying on Adkins v. Virginia, 536 U.S. 304 (2002), Haliburton filed his second successive postconviction motion under Florida Rules of Criminal Procedure 3.851 and 3.203, seeking to vacate his death sentence on the ground that he is mentally retarded. On March 13, 2012, the trial court summarily denied Haliburton's motion because he failed to demonstrate that his IQ was 70 or below. We affirm.
To prove mental retardation, a defendant must demonstrate "significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18." Cherry v. State, 959 So. 2d 702, 711 (Fla. 2007) (quoting § 921.137(1), Fla. Stat. (2002)). To satisfy the requirement of "significantly subaverage general intellectual functioning," the defendant must establish that he has an IQ of 70 or below. State v. Herring, 76 So. 3d 891, 895 (Fla. 2011), cert. denied 133 S. Ct. 28 (2012); Cherry v. State, 959 So. 2d 702, 713 (Fla. 2007). In Turner v. State, 46 So. 3d 568, 2010 WL 3802538 (Fla. 2010) (table), this Court stated that "[b]ecause the expert reports conclusively rebutted the first-prong of Turner's Atkins claim, the trial court did not err in summarily denying Turner's claim that he was mentally retarded." Haliburton scored 74 on the IQ test administered by his expert and submitted to the trial court as part of this claim. Haliburton has never scored 70 or below on any standardized intelligence test recognized under section 921.137(1), Florida Statutes (2006). Therefore, the trial court did not err in summarily denying Haliburton's claim.
Haliburton also contends that this Court should overrule its decision in Cherry v. State, 959 So. 2d 702 (Fla. 2007), because it is unconstitutional. This Court has repeatedly rejected Haliburton's argument that imposing a bright-line cutoff IQ score of 70 for finding a defendant to be mentally retarded and ineligible to be executed is unconstitutional. See, e.g., Herring, 76 So. 3d at 895; Franqui v. State, 59 So. 3d 82, 94 (Fla. 2011); Nixon v. State, 2 So. 3d 137, 142-43 (Fla. 2009). Therefore, Haliburton is not entitled to relief.
Accordingly, we affirm the trial court's order. POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY, JJ., concur. LABARGA, J., recused. A True Copy
Test:
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Thomas D. Hall
Clerk, Supreme Court
tw
Served:
PAUL H. ZACKS
ELIZABETH TANDIWE STEWART
ROSEANNE ECKERT
CONSIGLIA TERENZIO
HON. JOSEPH GEORGE MARX, JUDGE
HON. SHARON BOCK, CLERK