Phillips v. State

Decision Date21 May 2020
Docket NumberNo. SC18-1149,SC18-1149
Citation299 So.3d 1013
CourtFlorida Supreme Court
Parties Harry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee.

Neal Dupree, Capital Collateral Regional Counsel, William M. Hennis III, Litigation Director, and Marta Jaszczolt, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee


Harry Franklin Phillips, a prisoner under sentence of death, appeals the circuit court's order summarily denying his successive motion for postconviction relief, which was filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Phillips murdered Bjorn Thomas Svenson in 1982, and his conviction and death sentence for that crime became final in 1998. A postconviction court in 2006 fully adjudicated and denied Phillips's claim that he is intellectually disabled and, under the rule of Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), constitutionally ineligible for the death penalty. We affirmed the denial of Phillips's intellectual disability claim in 2008. Phillips now seeks yet another determination of his intellectual disability, relying in part on this Court's decision in Walls v. State , 213 So. 3d 340 (Fla. 2016), in which we held that the United States Supreme Court's decision in Hall v. Florida , 572 U.S. 701, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), is retroactive to cases where there has already been a finding that the defendant is not intellectually disabled.

For the reasons we explain, we affirm the circuit court's denial of relief. We also recede from our prior decision in Walls .


The facts of the case were summarized on direct appeal as follows:

In the evening of August 31, 1982, witnesses heard several rounds of gunfire in the vicinity of the Parole and Probation building in Miami. An investigation revealed the body of Bjorn Thomas Svenson, a parole supervisor, in the parole building parking lot. Svenson was the victim of multiple gunshot wounds

. There apparently were no eyewitnesses to the homicide.

As parole supervisor, the victim had responsibility over several probation officers in charge of appellant's parole. The record indicates that for approximately two years prior to the murder, the victim and appellant had repeated encounters regarding appellant's unauthorized contact with a probation officer. On each occasion, the victim advised appellant to stay away from his employees and the parole building unless making an authorized visit. After one incident, based on testimony of the victim and two of his probation officers, appellant's parole was revoked and he was returned to prison for approximately twenty months.

On August 24, 1982, several rounds of gunfire were shot through the front window of a home occupied by the two probation officers who had testified against appellant. Neither was injured in the incident, for which appellant was subsequently charged.

Following the victim's murder, appellant was incarcerated for parole violations. Testimony of several inmates indicated that appellant told them he had killed a parole officer. Appellant was thereafter indicted for first-degree murder.

Phillips v. State , 476 So. 2d 194, 195-96 (Fla. 1985). Phillips was convicted of the first-degree murder of Svenson and sentenced to death. Id. at 197. His conviction and sentence were affirmed on direct appeal, id. , but on collateral review, this Court reversed the death sentence and remanded for a new penalty phase based on a finding that counsel was ineffective in the penalty phase, Phillips v. State , 608 So. 2d 778 (Fla. 1992). After a new penalty phase in 1994, the jury returned a recommendation of death by a vote of seven to five, and Phillips was again sentenced to death, which was affirmed on appeal.

Phillips v. State , 705 So. 2d 1320, 1321, 1323 (Fla. 1997), cert. denied , 525 U.S. 880, 119 S.Ct. 187, 142 L.Ed.2d 152 (1998). We later affirmed the denial of Phillips's initial motion for postconviction relief after resentencing and denied his petition for a writ of habeas corpus. Phillips v. State , 894 So. 2d 28, 31 (Fla. 2004). And we have affirmed the denial of his prior successive motions for postconviction relief. Phillips v. State , 234 So. 3d 547, 548 (Fla.) (affirming denial of successive motion for postconviction relief based on Hurst v. Florida , ––– U.S. ––––, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State , 202 So. 3d 40 (Fla. 2016) ), cert. denied , ––– U.S. ––––, 139 S. Ct. 187, 202 L.Ed.2d 114 (2018) ; Phillips v. State , 91 So. 3d 783 (Fla. 2012) (affirming denial of successive motion for postconviction relief based on the claim that Phillips's sentence violates the Sixth and Eighth Amendments under Porter v. McCollum , 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) ); Phillips v. State , 996 So. 2d 859 (Fla. 2008) (affirming denial of successive motion for postconviction relief and denial of motion to interview jurors); Phillips v. State , 984 So. 2d 503 (Fla. 2008) (affirming finding that Phillips is not intellectually disabled).

During Phillips's initial postconviction proceedings after resentencing, Phillips filed a "Notice of Supplemental Authority and Motion for Permission to Submit Supplemental Briefing" related to the United States Supreme Court's decisions in Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Atkins , and this Court permitted supplemental briefing on the intellectual disability issues under Atkins . Phillips , 894 So. 2d at 34. We affirmed the denial of postconviction relief and denied the habeas petition, but regarding his claim of intellectual disability, we noted that "Phillips [was] free to file a motion under rule 3.203" but expressed "no opinion regarding the merits of such a claim." Id. at 40. We later relinquished jurisdiction for a determination of intellectual disability pursuant to Florida Rule of Criminal Procedure 3.203. Phillips , 984 So. 2d at 506.

At an evidentiary hearing on Phillips's intellectual disability claim in 2006, the circuit court permitted Phillips to present evidence regarding all three prongs of the intellectual disability standard and concluded that Phillips failed to prove by clear and convincing evidence that he met any of the three prongs of the statutory intellectual disability standard (intellectual functioning, adaptive behavior, and onset before age eighteen) and therefore was not intellectually disabled. Id. at 509. In 2008, this Court upheld the circuit court's findings that Phillips failed to establish that he met any of the three prongs and affirmed the denial of relief based on his claim of intellectual disability. Id. at 513.

Phillips filed the instant successive motion for postconviction relief in 2018 seeking a new determination of his claim that he is ineligible for the death penalty due to intellectual disability in light of the decisions in Hall , Walls , and Moore v. Texas , ––– U.S. ––––, 137 S. Ct. 1039, 197 L.Ed.2d 416 (2017). Phillips contended that the prior denial of his intellectual disability claim must be reheard and determined under new constitutional law that, according to Phillips, requires a court to holistically consider all three prongs of the intellectual disability standard.

At a case management conference held in the circuit court on Phillips's motion, Phillips argued that in light of Hall and Walls , and a new evaluation report prepared by Dr. Denis Keyes, who had testified at the 2006 hearing, he is entitled to a new evidentiary hearing. Alternatively, Phillips requested that the circuit court reevaluate the evidence presented at the 2006 hearing along with Dr. Keyes's new report, although Phillips conceded that there was no new evidence of intellectual disability in this case and that Dr. Keyes did not change his opinion in his updated report. The circuit court abruptly decided during the case management conference that it would review de novo the entire record from the 2006 hearing1 and Dr. Keyes's new report before making any decision on Phillips's motion.

On June 14, 2018, the circuit court entered an order denying an evidentiary hearing and denying relief. But in its 2018 order, the circuit court also made new findings regarding the evidence presented at the 2006 evidentiary hearing. First, it concluded that because Hall requires that courts take into account the standard error of measurement (SEM), which is "plus or minus five points" and "[a]n IQ of up to 75 would meet the definition of [intellectual disability]," Phillips "has clearly proven the first prong by clear and convincing evidence," because the IQ scores presented in 2006 were 70, 74, and 75.2 The circuit court also made a new finding that Phillips met the third prong—onset before age eighteen.3 Nonetheless, the 2018 circuit court ultimately declined to find that Phillips is intellectually disabled based on its agreement with the 2006 circuit court's finding (and this Court's 2008 opinion affirming that finding) that Phillips failed to establish that he met the second prong of the intellectual disability standard—concurrent deficits in adaptive behavior. Phillips now appeals that decision.


First, we review the recent history of intellectual disability as a bar to execution. Then we discuss the clear error in this Court's decision in Walls and why Hall does not entitle Phillips to relief. Finally, we consider and reject Phillips's claim that he is entitled to relief based on Moore .

A. Intellectual Disability as a Bar to Execution

In 2002, the United States Supreme Court held in Atkins that the Eighth and Fourteenth Amendments to the United States Constitution forbid the execution of persons with intellectual disability. Atkins , 536 U.S. at 321, 122 S.Ct. 2242. The Court observed that ...

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  • State v. Lotter
    • United States
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    • 1 Julio 2022
    ...individuals protected by Atkins ’ prohibition against the execution of individuals who are intellectually disabled.93 For example, in Phillips v. State ,94 a case in which the U.S. Supreme Court denied a writ of certiorari, the Florida Supreme Court reasoned that while Hall "more precisely ......
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    ...been applied in cases based solely on circumstantial evidence." Id. at 217.On May 21, 2020, this Court decided Phillips v. State , 299 So. 3d 1013 (Fla. 2020). In Phillips , this Court receded from Walls v. State , 213 So. 3d 340 (Fla. 2016) (holding that Hall v. Florida , 572 U.S. 701, 134......
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    ...not announce new substantive constitutional rule that must be applied retroactively to cases on collateral review); Phillips v. State, 299 So.3d 1013 (Fla. 2020), cert, denied ___U.S. ___, 141 S.Ct. 2676, 210 L.Ed.2d 837 (2021) (holding Hall did not apply retroactively on state collateral r......
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