Opinion
No. SC11–2401.
2012-12-10
Kenneth Darcell QUINCE, Appellant(s) v. STATE of Florida, Appellee(s).
Kenneth Darcell Quince, 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 Quince's conviction and death sentence on direct appeal. Quince v.. State, 414 So.2d 185 (Fla.1982). We also affirmed the denial of his initial motion for post conviction relief, Quince v. State, 477 So.2d 535 (Fla.1985), and ultimately denied a subsequent motion for post conviction relief, Quince v. State, 732 So.2d 1059 (Fla.1999). On November 1, 2004, relying on Adkins v. Virginia, 536 U.S. 304 (2002), Quince filed motions 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 May 12, May 15, May 16, and November 3, 2008, the trial court held an evidentiary hearing on Quince's motions. On November 7, 2011, the trial court denied Quince's motion. 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); Cherry v. State, 959 So.2d 702, 713 (Fla.2007). Quince has not scored 70 or below on an IQ test. The three IQ tests taken by Quince-each the current version of the Wechsler Adult Intelligence Scale when administered-produced scores of 79 on his 1980 test, 77 on his 1984 test, and 79 on his 2006 test.
Additionally, the trial court was not persuaded by Quince's attempt to demonstrate through lay witness testimony that he scored below 70 on an IQ test administered prior to 1973. In reviewing the trial court's determination that Quince was not mentally retarded, “this Court examines the record for whether competent, substantial evidence supports the determination of the trial court.” Herring, 76 So.3d at 895. “A defendant who raises mental retardation as a bar to imposition of a death sentence carries the burden to prove mental retardation by clear and convincing evidence.” Franqui v. State, 59 So.3d 82, 92 (Fla.2011). “This Court ‘does not reweigh the evidence or second-guess the circuit court's findings as to the credibility of witnesses.’ “ Herring, 76 So.3d at 895 (quoting Brown v. State, 959 So.2d 146, 149 (Fla.2007)).
Competent, substantial evidence supports the trial court's conclusion that Quince did not demonstrate that he is mentally retarded by clear and convincing evidence. None of the witnesses testified that they know for certain that Quince had been given an IQ test prior to 1973 or what Quince scored on that test. Therefore, Quince's argument that the trial court erred in not concluding that he had scored below 70 on an IQ test prior to 1973 based on the lay witness testimony lacks merit.
Accordingly, we affirm the trial court's order.