Billy Leon Kearse v. State of Florida

Supreme Court of Florida
____________

No. SC2026-0251
_____________

BILLY LEON KEARSE,
Appellant,

vs.

STATE OF FLORIDA
Appellee.

____________

No. SC2026-0250
____________

BILLY LEON KEARSE,
Petitioner,

vs.

STATE OF FLORIDA
Respondent.

February 25, 2026

PER CURIAM.

Billy Leon Kearse, a prisoner under sentence of death for

whom a death warrant has been signed and an execution set for

March 3, 2026, appeals the circuit court’s final order summarily
denying his sixth successive motion for postconviction relief filed

under Florida Rule of Criminal Procedure 3.851. Kearse also

petitions this Court for a writ of habeas corpus and has filed two

pending motions for a stay of execution. We have jurisdiction. See

art. V, § 3(b)(1), (9), Fla. Const.; see also State v. Fourth Dist. Ct. of

Appeal, 697 So. 2d 70, 71 (Fla. 1997) (holding “that in addition to

our appellate jurisdiction over sentences of death, we have exclusive

jurisdiction to review all types of collateral proceedings in death

penalty cases”). For the reasons that follow, we affirm the circuit

court’s order denying relief below, and we deny Kearse’s habeas

petition and motions for a stay of execution.

I. BACKGROUND

Kearse was charged with first-degree murder and robbery with

a firearm in the 1991 killing of Fort Pierce police officer Danny

Parrish. After Parrish stopped Kearse for driving the wrong way

down a one-way street, Kearse failed to produce a driver’s license

and gave him false names. Parrish then ordered Kearse to exit the

car and attempted to handcuff him. Kearse resisted, grabbed

Parrish’s gun, and fired fourteen shots, thirteen of which struck

Parrish. Parrish later died from his injuries at the hospital. Kearse

-2-
was apprehended shortly thereafter and confessed to shooting

Parrish. Kearse v. State, 662 So. 2d 677, 680 (Fla. 1995).

The jury convicted Kearse of first-degree murder and robbery

with a firearm. After this Court affirmed those convictions but

granted Kearse a new penalty phase, see id. at 685-86, a second

penalty phase jury unanimously recommended that Kearse be

sentenced to death in 1996. The trial court followed that

recommendation, finding two aggravating factors: (1) the murder

was committed during a robbery; and (2) the murder was

committed to avoid arrest and hinder law enforcement, and the

victim was a law enforcement officer engaging in the performance of

his official duties (merged into one factor). Kearse v. State, 770 So.

2d 1119, 1123 (Fla. 2000). The trial court determined that the

mitigating circumstances—Kearse’s age at the time of the murder;

the fact that he confessed; his acceptable behavior at trial; and a

number of circumstances relating to his difficult childhood—were

insufficient to outweigh the aggravating factors. Id.

On direct appeal after the resentencing, this Court affirmed

Kearse’s death sentence, id. at 1135, which became final when the

United States Supreme Court denied certiorari review in 2001, see

-3-
Kearse v. Florida, 532 U.S. 945 (2001); Fla. R. Crim. P.

3.851(d)(1)(B) (“For purposes of this rule, a judgment is final . . . on

the disposition of the petition for writ of certiorari by the United

States Supreme Court, if filed.”).

In the decades since, Kearse has unsuccessfully challenged

his convictions and sentence in state and federal court. See Kearse

v. State, 969 So. 2d 976, 981 (Fla. 2007) (affirming denial of initial

motion for postconviction relief and denying first state habeas

petition); Kearse v. State, 11 So. 3d 355 (Fla. 2009) (affirming denial

of successive motion for postconviction relief); Kearse v. State, 75

So. 3d 1244 (Fla. 2011) (unpublished table decision) (affirming

denial of successive motion for postconviction relief); Kearse v.

Tucker, 100 So. 3d 1148 (Fla. 2012) (unpublished table decision)

(denying second state habeas petition); Kearse v. State, No.

561991CF000136A (Fla. 19th Cir. Ct. July 15, 2016) (dismissing

successive motion for postconviction relief); Kearse v. State, No.

SC17-346, 2017 WL 5951617, at *1 (Fla. May 9, 2017) (dismissing

for lack of jurisdiction appeal of dismissal of successive motion for

postconviction relief); Kearse v. State, 252 So. 3d 693, 694 (Fla.

2018) (affirming denial of successive motion for postconviction

-4-
relief); Kearse v. Sec’y, Fla. Dep’t of Corr., 2022 WL 3661526, at *1

(11th Cir. Aug. 5, 2022) (affirming denial of federal habeas relief).

Governor Ron DeSantis signed Kearse’s death warrant on

January 29, 2026. Kearse then filed a sixth successive motion for

postconviction relief under rule 3.851, raising three claims: (1) there

is newly discovered evidence that Kearse was unconstitutionally

deprived of a fair penalty phase proceeding because the jury was

improperly influenced by the presence of uniformed law

enforcement officers in the courtroom; (2) Kearse’s death sentence

is unconstitutional because newly discovered evidence establishes

that he is intellectually disabled; and (3) the truncated nature of

Florida’s death warrant process violates due process. The circuit

court summarily denied these three claims. The circuit court also

denied Kearse’s related motion for a juror interview, his motion to

declare unconstitutional the “clear and convincing evidence”

standard of proof for establishing intellectual disability set forth in

section 921.137(4), Florida Statutes, and his post-warrant public

records requests made on February 9, 2026, under Florida Rule of

Criminal Procedure 3.852. Kearse now contests the denial of

claims one and two of his postconviction motion, and in the course

-5-
of his challenge, he also asserts that the circuit court erred in

denying his motion to interview a juror, his motion to declare

section 921.137(4) unconstitutional, and his post-warrant public

records requests filed on February 9, 2026.

II. ANALYSIS

A. Claim That Newly Discovered Evidence Shows That
Kearse Was Unconstitutionally Deprived of a Fair Penalty
Phase Because the Jury Was Subject to Improper
Influences

Kearse first argues that the circuit court erred in summarily

denying his claim that he was unconstitutionally deprived of a fair

penalty phase proceeding in 1996 because the jury was subject to

improper external influences. In support of this claim, Kearse

asserted that a recent Facebook comment posted by a penalty

phase juror (Juror M) constitutes newly discovered evidence that (1)

uniformed law enforcement officers were present in the 1996

courtroom; and (2) their presence created an atmosphere that

influenced Juror M, such that Kearse did not receive a fair trial

under the Sixth and Fourteenth Amendments of the U.S.

Constitution. Juror M’s social media comment, posted on February

3, 2026, reads in full:

-6-
I was a Juror at the second trial, for a possible
resentencing of the young man that killed Danny. At the
end of that 2nd trial, his death sentence remained. It
was one of the hardest things I’ve ever done, but there
was no doubt it was the right sentence. I’ll never forget
the respect and support shown to Danny in that
courtroom. Every day, no matter how long the trial went,
the back of the courtroom was filled with Leo’s1 from
every city and county in the state, so much support and
respect from his fellow Leo’s. They would stand there for
several hours, never wavering. I remember silently
hoping that his family and friends would know how much
he was loved.

For the reasons explained below, we agree with the circuit court’s

conclusion that this claim is untimely and procedurally barred.

Florida Rule of Criminal Procedure 3.851(d)(1) requires that

defendants file any motion to vacate judgment of conviction and

sentence of death within one year after their judgment and sentence

become final. Because Kearse’s successive postconviction claim

was filed well beyond the one-year time limit for filing such motions,

Kearse must establish that “the facts on which the claim is

predicated were unknown [by him and his attorney] . . . and could

not have been ascertained by the exercise of due diligence.” Fla. R.

1. In this context, the term “Leo’s” presumably refers to “law
enforcement officers.”

-7-
Crim. P. 3.851(d)(2)(A). Moreover, “any claim of newly discovered

evidence in a death penalty case must be brought within one year of

the date such evidence was discovered or could have been

discovered through the exercise of due diligence.” Glock v. Moore,

776 So. 2d 243, 251 (Fla. 2001).

Kearse’s claim is untimely because it is premised on facts that

could have been discovered decades ago with due diligence. His

second penalty phase occurred in 1996, and our affirmance of his

death sentence became final in 2001. The presence of uniformed

officers in the courtroom during the second penalty phase would

have been readily observable. To the extent that the officers’

presence could have raised constitutional concerns, Kearse had

ample opportunity to investigate any potential undue influence on

the jury. Whatever the relevance of Juror M’s Facebook post, it

merely discloses information that due diligence could have

uncovered long ago.

In addition, this Court has held that “in an active [death]

warrant case, a postconviction claim that could have been raised in

a prior proceeding is procedurally barred.” Rogers v. State, 409 So.

3d 1257, 1263 (Fla.), cert. denied, 145 S. Ct. 2695 (2025). This rule

-8-
applies to Kearse’s claim here, which he could have raised long ago

on appeal or in an earlier postconviction proceeding. The circuit

court was right to deny Kearse’s claim as procedurally barred.

B. Motion for a Juror Interview

Kearse also argues that the circuit court erred in denying his

February 9, 2026, motion to interview Juror M. Because Kearse

failed to establish good cause for filing his motion nearly three

decades late or to assert a legally valid basis for the juror interview,

the circuit court did not err in denying his motion.

We review the circuit court’s denial of Kearse’s motion for a

juror interview for abuse of discretion. Anderson v. State, 18 So. 3d

501, 519 (Fla. 2009). Florida Rule of Criminal Procedure 3.575

requires that a motion to interview a juror be filed “within 10 days

after the rendition of the verdict, unless good cause is shown for the

failure to make the motion within that time.” Fla. R. Crim. P. 3.575

(emphasis added). As we recently explained in Bates v. State, 398

So. 3d 406, 407 (Fla. 2024), “the timing contemplated by the rule

suggests that the best time for a rule 3.575 motion is on the heels

of trial, and thus in connection with a direct appeal, when

memories are fresh and facts more readily ascertained.” A rule

-9-
3.575 motion requires that a party have reason to believe that the

verdict may be subject to legal challenge, and it “must set forth

allegations that are not merely speculative or conclusory, or

concern matters that inhere in the verdict.” Foster v. State, 132 So.

3d 40, 65 (Fla. 2013).

Of course, Kearse filed the motion at issue here decades after

the expiration of the rule 3.575 deadline. To excuse that delay,

Kearse relies exclusively on Juror M’s February 3, 2026, social

media post. He contends that the post reveals improper external

influences on the jury and therefore justifies interviewing Juror M

now. But any factual issues raised by Juror M’s post—whether

about the presence of officers in the courtroom or her reaction to

that presence—could have been discovered long ago with due

diligence. Kearse has not demonstrated good cause under rule

3.575 to excuse his decades-long delay in seeking a juror interview.

See Bates, 398 So. 3d at 407-08 (finding that Bates’s failure to

establish good cause for the long delay was “the end of the matter”).

We find no abuse of discretion in the circuit court’s denial of

Kearse’s motion.

- 10 -
C. Public Records Claims

Also related to claim one of his successive motion, Kearse

appeals the circuit court’s denial of his three post-warrant public

records requests made on February 9, 2026, under Florida Rule of

Criminal Procedure 3.852(i) to the Office of the Attorney General

(OAG), the Office of the State Attorney for the Nineteenth Judicial

Circuit (SAO19), and the St. Lucie County Sheriff’s Office (SLCSO).

Kearse made these requests six days after the February 3, 2026,

deadline imposed by the circuit court. Kearse sought records

relating to any communication between those three agencies and

Juror M. Kearse asserted that he sought these records because he

believed they would support his claim that he was deprived of a fair

penalty phase proceeding because Juror M was subject to the

improper influence of uniformed law enforcement officers in the

courtroom. The circuit court sustained the agencies’ objections and

denied the requests.

We review the denial of requests for public records for abuse of

discretion, Muhammad v. State, 132 So. 3d 176, 200 (Fla. 2013),

and find none here. We agree with the circuit court that Kearse’s

requests were untimely filed six days after the deadline imposed by

- 11 -
the circuit court’s scheduling order. Kearse gave no explanation of

why he filed the requests six days late, especially given that he

found Juror M’s post only nine hours after the deadline had

expired. Nor did he seek leave of the court to file a late demand.

Kearse explained that he sought these additional records

because an Assistant Attorney General (AAG) in this case had

allegedly responded to articles and social media comments on

Facebook regarding the signing of Kearse’s death warrant. 2 Kearse

asserted that the fact that Juror M’s post was deleted within

twenty-four hours of the AAG’s alleged comment(s) “raise[d] the

question of whether there was some sort of misconduct in

contacting the juror.” Even accepting Kearse’s timeline and factual

allegations as true, his theory that a state or county agency engaged

in misconduct by contacting Juror M about her post is purely

speculative and does not provide a basis for a colorable claim of

relief. Kearse’s February 9, 2026, records requests amount to a

fishing expedition rather than a proper basis for obtaining post-

2. At the hearing on his February 9 requests, Kearse claimed
to have in his possession the social media comments posted by the
AAG, but they do not appear in the record.

- 12 -
warrant public records under rule 3.852. See, e.g., Dailey v. State,

283 So. 3d 782, 792 (Fla. 2019) (“Rule 3.852 is ‘not intended to be a

procedure authorizing a fishing expedition for records.’ ” (quoting

Bowles v. State, 276 So. 3d 791, 795 (Fla. 2019))). Under these

circumstances, the circuit court did not abuse its discretion in

denying Kearse’s requests for additional public records from the

OAG, SAO19, or SLCSO filed on February 9, 2026.

Likewise, we reject Kearse’s argument that denying him access

to these records violates his rights to due process and equal

protection under the Eighth and Fourteenth Amendments of the

U.S. Constitution and the corresponding provisions of the Florida

Constitution. Cole v. State, 392 So. 3d 1054, 1066 (Fla.) (“Vague

and conclusory allegations on appeal are insufficient to warrant

relief.” (citing Heath v. State, 3 So. 3d 1017, 1029 n.8 (Fla. 2009))),

cert. denied, 145 S. Ct. 109 (2024).

D. Claim That Kearse’s Death Sentence Is Unconstitutional
Based on Newly Discovered Evidence That Kearse Is
Intellectually Disabled

Kearse also argues that the circuit court erred in summarily

denying claim two of his successive motion, in which he argued that

he is intellectually disabled and categorically exempt from execution

- 13 -
under Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the

Eighth Amendment prohibits execution of the intellectually

disabled). In support of this claim, Kearse provided a report by

Robert H. Ouaou, Ph.D., a clinical and forensic neuropsychologist,

dated February 8, 2026, indicating that Kearse obtained a full-scale

IQ score of 75 on the Wechsler Adult Intelligence Scale, Fifth

Edition (WAIS-5)—the most recent revision of the widely used

Wechsler Adult Intelligence Scale—administered to him after his

death warrant was signed. Kearse argued that the IQ score he

obtained on the WAIS-5 on February 2, 2026,3 constitutes newly

discovered evidence that he is intellectually disabled.

“[T]o establish intellectual disability as a bar to execution, a

defendant must demonstrate (1) significantly subaverage general

3. The WAIS is one of two tests that can be used to establish
“significantly subaverage general intellectual functioning,” the first
prong of section 921.137(1), as indicated in Florida Administrative
Code Rule 65G-4.011. Although the WAIS-5 is the most recent
revision of that test, Kearse’s argument framing the WAIS-5 as a
“new” test fails because psychological tests are routinely revised to
reflect changes in the population and other factors, and such
revisions do not automatically render results on earlier tests
invalid. See Hampton v. State, 219 So. 3d 760, 777-79 (Fla. 2017)
(treating both a defendant’s WAIS-IV results from 2013 and WAIS
results from 1989 as generally valid, admissible evidence).

- 14 -
intellectual functioning; (2) concurrent deficits in adaptive behavior;

and (3) manifestation of the condition before age eighteen.”

Haliburton v. State, 331 So. 3d 640, 646 (Fla. 2021). “Significantly

subaverage general intellectual functioning” requires performance

two or more standard deviations below the mean on an approved

standardized intelligence test, and “an ‘IQ test result of 75 [i]s

squarely in the range of potential intellectual disability.’ ” Wright v.

State, 256 So. 3d 766, 771 (Fla. 2018) (alteration in original)

(quoting Brumfield v. Cain, 576 U.S. 305, 315 (2015)). Further,

“adaptive behavior” refers to the degree to which an individual

meets standards of personal independence and social responsibility

as expected of his age, cultural group, and community.

§ 921.137(1), Fla. Stat.

Earlier IQ results from the original trial and resentencing

established Kearse had an IQ score of 79, while in eighth grade he

obtained an IQ score of 78. These scores placed Kearse outside the

intellectual disability range. At his 1996 penalty phase, Kearse’s

own expert testified that although Kearse had low-level intelligence,

emotional problems, learning disabilities, and brain dysfunctioning,

he was not intellectually disabled. Kearse, 969 So. 2d at 991-92.

- 15 -
And over the past twenty-five years that Kearse has been engaged in

postconviction litigation, he has never raised a claim that he is

intellectually disabled under Atkins. At most, in his first state

habeas petition, Kearse argued that Atkins should be extended to

him based on “his age, low level of intellectual functioning, and

mental and emotional impairments,” but even then, he did not

assert that he was intellectually disabled. Kearse, 969 So. 2d at

991.

Kearse argues that his intellectual disability claim is timely

now because his newly obtained IQ score of 75 on the WAIS-5

constitutes newly discovered evidence. And he claims that he could

not have discovered this IQ score earlier because the WAIS-5 was

released in 2024. But Kearse’s last-minute, post-warrant IQ score

does not qualify as newly discovered evidence, and the circuit court

did not err in denying this untimely, procedurally barred, and

legally insufficient claim.

Kearse’s intellectual disability claim is untimely because it was

raised well beyond the one-year time limitation imposed by rule

3.851(d)(1), and none of the exceptions in rule 3.851(d)(2) apply. As

we have explained, rule 3.851(d)(2)(A) provides an exception to the

- 16 -
one-year time limitation when the facts on which the claim is

predicated were unknown to the defendant or counsel and could

not have been ascertained by the exercise of due diligence. To be

considered timely filed as newly discovered evidence, a claim must

be filed within one year of the date upon which the claim became

discoverable through due diligence. Jimenez v. State, 997 So. 2d

1056, 1064 (Fla. 2008). However, Kearse has failed to establish

that he exercised due diligence in discovering his alleged

intellectual disability.

Even accepting Kearse’s argument that he could not have

discovered his IQ score of 75 before the WAIS-5 was released, his

claim is still untimely. Kearse’s claim was not filed within one year

of when his IQ score could have been discovered through the

exercise of due diligence. According to Kearse, the WAIS-5 was

released in October 2024. Assuming that is true, October 2024

would be the earliest date upon which Kearse’s IQ score would have

become discoverable through the exercise of due diligence. Thus, to

satisfy rule 3.851(d)(2)(A), Kearse’s claim would need to have been

filed by October 2025 at the very latest. Therefore, Kearse’s

intellectual disability claim based on his February 2, 2026, IQ score

- 17 -
is untimely. 4

Kearse’s intellectual disability claim was also properly denied

as procedurally barred. See Rogers, 409 So. 3d at 1263 (“[I]n an

active [death] warrant case, a postconviction claim that could have

been raised in a prior proceeding is procedurally barred.”). Kearse

has engaged in numerous postconviction proceedings over the last

two and a half decades. Yet not at trial, on appeal, or in any of his

state or federal postconviction proceedings has he raised a claim

that he is intellectually disabled under Atkins.

Finally, summary denial was proper because Kearse failed to

sufficiently plead the second prong—concurrent adaptive deficits—

of the intellectual disability standard under section 921.137(1). A

defendant must establish that he meets all three prongs of the

standard to be found intellectually disabled. § 921.137(1), Fla.

Stat. (2025); Dufour v. State, 69 So. 3d 235, 252-53 (Fla. 2011).

Thus, even if Kearse’s last-minute, post-warrant IQ test results

4. Kearse also argued that he showed “good cause” for filing
his challenge now, under warrant, citing Florida Rule of Criminal
Procedure 3.203(d)(4)(C) (2004). Without deciding this rule’s
applicability, Kearse’s argument that he has “good cause” for his
delay fails for the same reason it is untimely under rule 3.851.

- 18 -
were sufficient to raise a factual issue as to prong one of section

921.137(1) (they are not), Kearse is not entitled to relief because he

has not alleged any current deficits in adaptive behavior. Under

Florida law, the first prong must exist “concurrently” with the

second prong, “which this Court has interpreted to mean that the

two must exist ‘at the same time.’ ’’ Wright, 256 So. 3d at 773

(quoting Dufour, 69 So. 3d at 248). Kearse has alleged only

adaptive deficits that were present during his childhood, relating to

his trouble with reading and mathematics, as well as being less

emotionally developed than his peers at school. Kearse has not

alleged any adaptive deficits that are present now, as would be

required to satisfy prong two of section 921.137(1). See Williams v.

State, 226 So. 3d 758, 771 (Fla. 2017) (finding that the data

provided regarding Williams’s adaptive deficits was “insufficient to

satisfy the second prong of the intellectual disability test because it

[did] not address Williams’s current adaptive behavior” (emphasis

added)); State v. Jackson, No. 3D22-1451, 2025 WL 3703628, at *6

(Fla. 3d DCA Dec. 22, 2025) (observing that “adaptive deficits must

not only be present during childhood and adolescence, but also that

impairment must be an ongoing issue”). Adaptive deficits exist

- 19 -
when at least one domain—conceptual, social, and/or practical—“is

sufficiently impaired that ongoing support is needed in order for the

person to perform adequately in one or more life settings at school,

at work, at home, or in the community.” Wright, 256 So. 3d at 773.

But Kearse did not allege that any of his domains are impaired such

that ongoing support is needed, nor did he allege that he is

currently receiving support. Because Kearse did not allege current

adaptive deficits, he failed to make out a facially sufficient claim

that he is intellectually disabled under Florida law. Accordingly,

the summary denial of this claim was proper.

E. Motion to Declare Section 921.137(4)’s Standard of Proof
for Establishing Intellectual Disability Unconstitutional

Kearse also argues the circuit court erred in denying his

motion to declare unconstitutional the “clear and convincing

evidence” standard of proof set forth in section 921.137(4), Florida

Statutes, for establishing intellectual disability. Kearse argues that

this standard of proof is too high, imposes a significant risk of an

erroneous determination that a defendant is not intellectually

disabled, and violates the Eighth Amendment and his right to due

process. Because we have already determined that Kearse’s

- 20 -
intellectual disability claim is untimely, procedurally barred, and

legally insufficient as pleaded, we need not and will not consider the

constitutionality of section 921.137(4)’s standard of proof for

establishing intellectual disability. The circuit court did not err in

denying his motion.

F. Habeas Petition

In his habeas petition, Kearse argues that his death sentence

is unconstitutional under the Eighth and Fourteenth Amendments

of the U.S. Constitution and article I, section 17 of the Florida

Constitution, because his age at the time of the murder, coupled

with his significantly subaverage intellectual functioning, places

him in a category of defendants exempt from execution under Roper

v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth

Amendment prohibits execution of individuals who were under

eighteen years of age at the time they committed their capital

crime), and Atkins, 536 U.S. at 321. We disagree.

Kearse’s claim is procedurally barred. In his initial

postconviction motion, Kearse argued that he should be exempt

from execution based on an interplay of Roper and Atkins, and our

Court rejected that claim. See Kearse, 969 So. 2d at 991-92

- 21 -
(rejecting Kearse’s Atkins claim because he presented evidence at

his penalty phase that he was not intellectually disabled and no

evidence to the contrary at his initial postconviction evidentiary

hearing, and rejecting his Roper claim because he was over the age

of eighteen at the time of the murder). Kearse cannot relitigate the

issue now. See Walls v. State, 423 So. 3d 865, 876 (Fla.) (“Because

Walls’ habeas petition seeks only to relitigate an issue that was

previously decided, we deny the petition.”), cert. denied, No. 25-

6357, 2025 WL 3674295 (U.S. Dec. 18, 2025); Jones v. State, 419

So. 3d 619, 629 (Fla.) (denying habeas petition raising intellectual

disability claim because it was already litigated), cert. denied, 146 S.

Ct. 79 (2025); Knight v. State, 923 So. 2d 387, 395 (Fla. 2005)

(“[C]laims [that] were raised in [a] postconviction motion . . . cannot

be relitigated in a habeas petition.”).

Even if the claim were not procedurally barred, it is meritless,

as we determined in his initial postconviction appeal. Kearse has

not established that he is intellectually disabled such that he is

among the class of persons categorically exempt from execution

under Atkins, and Roper exempts from execution only those who

were under eighteen years of age at the time of their capital crime.

- 22 -
This Court cannot extend the protections of Roper and Atkins to

Kearse. As we explained in Barwick v. State, 361 So. 3d 785 (Fla.

2023):

The conformity clause of article I, section 17 of the
Florida Constitution provides that “[t]he prohibition
against cruel or unusual punishment, and the
prohibition against cruel and unusual punishment, shall
be construed in conformity with decisions of the United
States Supreme Court which interpret the prohibition
against cruel and unusual punishment provided in the
Eighth Amendment to the United States Constitution.”
This means that the Supreme Court’s interpretation of
the Eighth Amendment is both the floor and the ceiling
for protection from cruel and unusual punishment in
Florida, and this Court cannot interpret Florida’s
prohibition against cruel and unusual punishment to
provide protection that the Supreme Court has decided is
not afforded by the Eighth Amendment.
Because the Supreme Court has interpreted the
Eighth Amendment to limit the exemption from execution
to those whose chronological age was less than eighteen
years at the time of their crimes, this Court is bound by
that interpretation and is precluded from interpreting
Florida’s prohibition against cruel and unusual
punishment to exempt individuals eighteen or more years
old from execution on the basis of their age at the time of
their crimes.

Id. at 794 (alteration in original) (rejecting argument that Roper

should be extended to Barwick because he was nineteen when he

committed the murder); see Stephens v. State, 975 So. 2d 405, 427

(Fla. 2007) (rejecting claim that Roper barred execution of defendant

- 23 -
whose chronological age at the time of his crimes was twenty-three).

Similarly, under the Eighth Amendment conformity clause in

article I, section 17 of the Florida Constitution, this Court “also

lacks the authority to extend Atkins to individuals who, like

[Kearse], are not intellectually disabled.” Barwick, 361 So. 3d at

795 (“[T]he Supreme Court . . . has limited the categorical ban

announced in Atkins so that individuals with mental deficiencies

other than intellectual disability are outside the scope of that

ban.”). Kearse is not categorically exempt from execution under

Roper, Atkins, or a combination thereof, and we deny his petition.

III. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order

summarily denying Kearse’s sixth successive motion for

postconviction relief. We also deny Kearse’s petition for a writ of

habeas corpus and his motions for a stay of execution.

No motion for rehearing will be entertained by this Court. The

mandate shall issue immediately.

It is so ordered.

MUÑIZ, C.J., and COURIEL, GROSSHANS, FRANCIS, SASSO, and
TANENBAUM, JJ., concur.
LABARGA, J., concurs in result.

- 24 -
An Appeal from the Circuit Court in and for St. Lucie County,
Michael Carlton Heisey, Judge
Case No. 561991CF000136AXXXXX
And an Original Proceeding – Habeas Corpus

Suzanne Keffer, Acting Capital Collateral Regional Counsel, Paul E.
Kalil, Assistant Capital Collateral Regional Counsel, and Courtney
M. Hammer, Staff Attorney, Southern Region, Fort Lauderdale,
Florida,

for Appellant/Petitioner

James Uthmeier, Attorney General, Tallahassee, Florida, Leslie T.
Campbell, Senior Assistant Attorney General, and Lisa-Marie
Lerner, Senior Assistant Attorney General, West Palm Beach,
Florida,

for Appellee/Respondent

- 25 -