Opinion
No. SC12–182.
2013-07-3
Leonardo FRANQUI, Appellant(s) v. STATE of Florida, Appellee(s).
Leonardo Franqui, a prisoner under sentence of death, appeals the circuit court's order summarily denying a successive motion for postconviction relief, which was filed pursuant to 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), of the Florida Constitution.
On appeal, Franqui contends that: (1) his sentence of death violates the Sixth and Eighth Amendments under Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), and the failure to apply Porter retroactively is arbitrary and violates Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and the Fourteenth Amendment; (2) the State withheld Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), material or, alternatively, Franqui discovered new evidence under Jones v. State, 591 So.2d 911 (Fla.1991), which would have reduced the weight of the prior crime of violence aggravating circumstance; and (3) the circuit court erred in summarily denying his mental retardation claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
We affirm the summary denial of Franqui's claim that Porter is retroactive because this Court decided this precise issue in Walton v. State, 77 So.3d 639 (Fla.2011), holding that Porter was not retroactive. Although Franqui argues that this Court incorrectly decided Walton, this Court is not persuaded. Franqui also argues that this Court's refusal to apply the benefit of the “evolutionary refinement” of Porter to his case, though Porter received that same benefit, is arbitrary and a violation of due process pursuant to Furman. This Court, however, stated in Walton that “Porter involved a mere application and evolutionary refinement and development of the Strickland analysis, i.e., it addressed a misapplication of Strickland.” Walton, 77 So.3d at 644. Thus, it is not a violation of due process and unconstitutionally arbitrary not to apply Porter to Franqui's claim of ineffective assistance of counsel.
As to his second claim, Franqui argues that he is entitled to an evidentiary hearing based on newly discovered evidence. Specifically, Franqui argues that Pablo Abreu, a codefendant in a Hialeah murder involving Franqui and Pablo San Martin, see Franqui v. State, 59 So.3d 82, 86 (Fla.2011), signed an affidavit and provided collateral testimony in collateral proceedings in San Martin's case which established that the State did not disclose favorable information in violation of Brady, or that the State allowed Abreu to provide false or misleading testimony to go uncorrected in violation of Giglio. This claim was untimely and thus procedurally barred. SeeFla. R.Crim. P. 3.851(d)(2)(A) (requiring postconviction motions to be filed within one year after the judgment and sentence become final unless the facts on which the claim are predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence). To be considered timely filed as newly discovered evidence, Franqui's successive motion was required to have been filed within one year of the date upon which the claim became discoverable through due diligence. See Lukehart v. State, 103 So.3d 134, 136 (Fla.2012). Abreu's affidavit was executed on March 29, 2000, and he testified in the postconviction evidentiary hearing in the Hialeah case on December 18, 2002. Franqui filed his claim on November 29, 2010, at least eight years after the claim became discoverable.
Even assuming otherwise, we find no merit in Franqui's claim because he cannot demonstrate that “the newly discovered evidence would probably yield a less severe sentence.” Schwab v. State, 969 So.2d 318, 325 (Fla.2007) (citing Jones, 591 So.2d at 915). Franqui argues that the Abreu affidavit and testimony somehow minimize the prior violent felony aggravator in this case because the jury would have heard it was not a premeditated murder. Franqui, however, was still convicted of first-degree murder in the Hialeah case. Thus, that conviction could still support the prior violent felony aggravator. In addition, the prior violent felony aggravator was also supported by Franqui's convictions for multiple counts of armed robbery, aggravated assault, and attempted armed robbery, and one count of armed kidnapping. In Franqui v. State, 699 So.2d 1312, 1328 (Fla.1997), this Court noted that the trial court's reliance on two attempted murder convictions, which this Court reversed, in finding the statutory aggravator of prior conviction of a felony involving the use or threat of violence was error. The Court, however, held that “the error was harmless beyond a reasonable doubt because the trial court also found that Franqui had been previously convicted of the crimes of aggravated assault and attempted armed robbery in one case and armed robbery and armed kidnapping in another.” See also Sims v. State, 602 So.2d 1253, 1258 (Fla.1992) (rejecting Sims' claims that fundamental error occurred when the trial court aggravated the penalty based on the common law robbery conviction because Sims had committed a separate, documented violent crime sufficient to support the trial court's finding of aggravation). Accordingly, Franqui's successive postconviction claim regarding newly discovered evidence is without merit.
Finally, we affirm the circuit court's summary denial of Franqui's Atkins claim because it is meritless. To establish mental retardation as a bar to the imposition of the death penalty, Franqui must prove each of the following three elements: (1) significantly subaverage general intellectual functioning as demonstrated by an adult IQ score of 70 or below; (2) concurrent deficits in adaptive functioning; and (3) manifestation before the age of 18. See Cherry v. State, 959 So.2d 702, 711 (Fla.2007). Further, the only IQ tests that are acceptable for purposes of proving mental retardation are the Wechsler Intelligence Scale and the Stanford–Binet Intelligence Scale. See § 921.137(1), Fla. Stat.; Fla. R.Crim. P. 3.203(b); Fla. Admin. Code 65G–4.011. Here, Franqui alleged that his IQ score was under 70 based on a report prepared in 1993, but the test utilized to measure his IQ was not the Wechsler Intelligence Scale or the Stanford–Binet Intelligence Scale. His scores on the acceptable IQ tests were above 70. See Franqui, 59 So.3d at 92 (finding, based on the same evidence presented here, that the circuit court had competent, substantial evidence-two separate doctors found Franqui's IQ was above 75 on the rule-approved psychological examinations-to find that Franqui is not mentally retarded). In addition, he did not plead whether the mental retardation manifested before he was 18 years of age. Thus, Franqui cannot demonstrate that he is mentally retarded under Florida law.
Accordingly, for the foregoing reasons we affirm the circuit court's order summarily denying Franqui's claims.
It is so ordered.