Wright v. State, SC13-1213

256 So.3d 766

Tavares J. WRIGHT, Appellant,

v.STATE of Florida, Appellee.

No. SC13-1213

Supreme Court of Florida.

September 27, 2018

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Maria Christine Perinetti, Raheela Ahmed, Lisa Marie Bort, and Margaret S. Russell, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee

PER CURIAM.

This case is before the Court on remand from the decision of the United States Supreme Court in Wright v. Florida (Wright v. Florida ), ––– U.S. ––––, 138 S.Ct. 360, 199 L.Ed.2d 260 (2017), which granted certiorari and vacated our decision in Wright v. State (Wright ), 213 So.3d 881 (Fla. 2017). In Wright , we affirmed the denial of Tavares Wright's intellectual disability (ID) claim. 213 So.3d at 912. After we released Wright , the Supreme Court issued Moore v. Texas , ––– U.S. ––––, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017). Because that decision is potentially relevant to this case, the Supreme Court vacated and remanded to allow us to reconsider Wright . Wright v. Florida , 138 S.Ct. 360. Therefore, the issue is whether Moore impacted the denial of Wright's ID claim. For the reasons that follow, we hold that Moore does not require a different result in this case; therefore, we reaffirm the denial of Wright's ID claim.

FACTUAL AND PROCEDURAL BACKGROUND

This Court detailed the underlying crimes in Wright's direct appeal. Wright v. State (Wright I ), 19 So.3d 277, 283-91 (Fla. 2009) (affirming convictions and sentences). For the purposes of this proceeding, it is only germane that Wright was convicted of, and sentenced for, two counts of first-degree murder, two counts of armed kidnapping, two counts of robbery with a firearm, and one count of carjacking with a firearm. Id. at 283. Also, prior to sentencing, the trial court held a special hearing to determine if Wright had ID. Id. at 289-90. In 2010, Wright filed a postconviction motion, which the postconviction court denied. Wright , 213 So.3d at 894. While the appeal of that decision was pending before this Court, the Supreme Court issued its opinion in Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). Wright , 213 So.3d at 894. Resultantly, this Court relinquished jurisdiction and remanded to the postconviction court, allowing Wright to file a renewed motion for determination of ID. Id.

The postconviction court granted an evidentiary hearing on Wright's renewed motion. Id. The evidentiary hearing took place on January 5-6, 2015, and February 11, 2015. During that hearing, Wright presented six witnesses, and the State presented thirteen witnesses. Id. at 894.¹ On March 26, 2015, the postconviction court denied Wright's renewed motion for determination of ID as a bar to execution. Id. Along with his other rejected postconviction claims, Wright appealed that order here, and we initially affirmed the decision in November 2016. Upon rehearing, we issued a revised opinion with limited changes on March 16, 2017.

Nearly two weeks later, on March 28, 2017, the Supreme Court issued its opinion in Moore . As a result of Wright's certiorari petition, the Supreme Court vacated Wright and remanded for reconsideration in light of Moore . The remand order follows in full:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Florida for further consideration in light of Moore v. Texas , 581 U.S. ––––, 137 S.Ct. 1039, 197 L.Ed.2d 416 (2017).

Wright v. Florida , 138 S.Ct. 360.

This review follows.

ANALYSIS

We resolve this case in three parts below: (1) the nature of the remand order; (2) the intelligence prong of the ID test; and (3) the adaptive functioning prong of the ID test.

However, as a preliminary matter, it is necessary to clarify what Moore did not change—our standard of review. As noted in Glover v. State , 226 So.3d 795 (Fla. 2017), neither Hall nor Moore "alter[ed] the standard for reviewing the trial court's determination as to whether the defendant is intellectually disabled." Id. at 809.

In reviewing the circuit court's determination that [the defendant] is not intellectually disabled, "this Court examines the record for whether competent, substantial evidence supports the determination of the trial court." State v. Herring , 76 So.3d 891, 895 (Fla. 2011). [This Court] "[does] not reweigh the evidence or second-guess the circuit court's findings as to the credibility of witnesses." Brown v. State , 959 So.2d 146, 149 (Fla. 2007). However, [this Court] appl[ies] a de novo standard of review to any questions of law. Herring , 76 So.3d at 895.

Glover , 226 So.3d at 809 (alterations in original) (quoting Oats v. State , 181 So.3d 457, 459 (Fla. 2015) ).

The Remand Order

First, we must dispel Wright's impression that the Supreme Court's vacation and remand indicates that it either reversed on the merits or intends for us to do so. The remand was in the form of a Supreme Court summary reconsideration order, which is colloquially known as a "GVR" (granted, vacated, and remanded). A GVR is a "mode of summary disposition, though not necessarily on the merits , [by] an order that grants certiorari, vacates the judgment below, and remands the case to the lower court for reconsideration in light of an intervening Supreme Court ruling." Stephen M. Shapiro et al., Supreme Court Practice 346 (10th ed. 2013) (emphasis added) (collecting cases as examples of GVRs with nearly identical language as the GVR here, including Siegelman v. United States , 561 U.S. 1040, 130 S.Ct. 3542, 177 L.Ed.2d 1120 (2010) ); see also Aaron-Andrew P. Bruhl, The Supreme Court's Controversial GVRs—And an Alternative , 107 Mich. L. Rev. 711, 712 (2009). Although we have not explicitly addressed this subject, other courts have resoundingly determined that a GVR is neither a merits determination nor precedential case law:

It is important to remember, however, that a GVR order is neither an outright reversal nor an invitation to reverse; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it. See Pratt v. Philbrook , 109 F.3d 18, 19-20 (1st Cir. 1997). The GVR order itself does not constitute a final determination on the merits; it does not even carry precedential weight. See Tyler v. Cain , 533 U.S. 656, 666 n.6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ; Henry v. City of Rock Hill , 376 U.S. 776, 777, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964) ; see also Lawrence [ v. Chater , 516 U.S. 163, 178, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) ] (Scalia, J., dissenting) (suggesting that the GVR ought to be termed "no fault V & R" because it represents a "vacation of a judgment and remand without any determination of error in the judgment below"). Consequently, we do not treat the Court's GVR order as a thinly-veiled direction to alter our course ....

Gonzalez v. Justices of Mun. Court of Bos. , 420 F.3d 5, 7 (1st Cir. 2005) ; see, e.g. , Kenemore v. Roy , 690 F.3d 639, 642 (5th Cir. 2012) ("A GVR does not bind the lower court to which the case is remanded; that court is free to determine whether its original decision is still correct in light of the changed circumstances or whether a different result is more appropriate."); Cmtys. for Equity v. Mich. High Sch. Athletic Ass'n , 459 F.3d 676, 680 (6th Cir. 2006) (same); United States v. Norman , 427 F.3d 537, 538 n.1 (8th Cir. 2005) (same); South Dakota v. U.S. Dep't of Interior , 423 F.3d 790, 796 n.5 (8th Cir. 2005) (same); Peterson v. BASF Corp. , 711 N.W.2d 470, 474 n.5 (Minn. 2006) (same).

Upon receiving nearly identical Moore GVR orders, some courts have affirmed their original decisions as unchanged by Moore , see Carroll v. State , No. CR-12-0599, 2017 WL 6398236, at *2, *6 (Ala. Crim. App. Dec. 15, 2017), while others have remanded further for trial courts to determine Moore 's effect on each particular case, see Long v. Davis , 706 Fed. App'x 181 (5th Cir. 2017) ; Henderson v. Davis , 868 F.3d 314 (5th Cir. 2017). Wright, however, does not present or direct us to any case that has held a GVR, or a Moore GVR, requires a different result per se. Thus, consistent with other courts' consideration of these orders, we will not guess at the implied intentions of the Supreme Court's GVR order. Rather—following the plain language of the order—we simply reconsider this case in light of Moore to determine if a different outcome is warranted. Wright v. Florida , ––– U.S. ––––, 138 S.Ct. 360, 199 L.Ed.2d 260.

Intelligence Prong

Second, Wright contends that we erred by affirming the postconviction court's finding that he failed to satisfy his burden of proof on the intellectual functioning prong of the ID test. However, Moore does not substantially change the law with regard to consideration of intelligence or IQ for the purposes of an ID determination; thus, Wright's claim fails again.

It is unconstitutional to impose a death sentence upon any defendant with ID. Moore , 137 S.Ct. at 1048 ; Atkins v. Virginia , 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; see also § 921.137(2), Fla. Stat. (2017). In Florida, section 921.137, Florida Statutes, defines ID with a three-prong test: (1) "significantly subaverage general intellectual functioning [ (2) ] existing concurrently with deficits in adaptive behavior and [ (3) ] manifested during the period from conception to age 18." § 921.137(1) ; see Hall , 134 S.Ct. at 1994.² To demonstrate ID, a defendant must make this showing by clear and convincing evidence. § 921.137(4).

With regard to the first prong, the statute defines the phrase "significantly subaverage general intellectual...