Harold Lee Harvey, Jr. v. State of Florida

Supreme Court of Florida
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No. SC2024-0648
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HAROLD LEE HARVEY, JR.,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 18, 2026

PER CURIAM.

Harold Lee Harvey, Jr. appeals the summary denial of his

third successive motion for postconviction relief. We have

jurisdiction. See art. V, § 3(b)(1), 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”). Because all of Harvey’s

arguments are either procedurally barred or meritless, we affirm the

postconviction court’s summary denial of Harvey’s motion for
postconviction relief.

I

In 1986, a jury convicted Harvey of two counts of first-degree

murder. Harvey v. State (Harvey I), 529 So. 2d 1083, 1084 (Fla.

1988). 1 The jury returned a recommendation of death by an 11-1

vote. The court sentenced Harvey to death on both counts after

finding four aggravating factors. 2 The trial court found that the

mitigating circumstances did not outweigh the aggravating factors

and specifically rejected as mitigation Harvey’s mental age being

eighteen years and nine months. We affirmed Harvey’s convictions

and sentences on direct appeal. Id. at 1088. Harvey then

unsuccessfully challenged his convictions and sentences in both

state and federal courts. Harvey v. Duggar (Harvey II), 656 So. 2d

1253, 1254-58 (Fla. 1995); Harvey v. State (Harvey IV), 946 So. 2d

937, 940 (Fla. 2006) (affirming denial of Harvey’s initial

1. We previously discussed the facts of Harvey’s crimes more
fully in Harvey I, 529 So. 2d at 1084.

2. These factors were that the murders (1) were committed
during a robbery or burglary, (2) were committed for the purpose of
avoiding lawful arrest, (3) were committed in a cold, calculated, and
premeditated manner, and (4) were especially heinous, atrocious,
and cruel. Id. at 1087 & n.4.

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postconviction motion); Harvey v. State (Harvey V), 260 So. 3d 906,

907 (Fla. 2018) (affirming trial court’s denial of Harvey’s first

successive rule 3.851 motion that raised an intellectual disability

claim); Harvey v. State (Harvey VI), 318 So. 3d 1238, 1240 (Fla.

2021) (affirming postconviction court’s summary denial of Harvey’s

second successive rule 3.851 motion); Harvey v. Warden, Union

Corr. Inst., 629 F.3d 1228, 1263 (11th Cir. 2011) (affirming district

court’s denial of Harvey’s petition for federal habeas corpus relief).

Most recently, Harvey filed his third successive rule 3.851

motion, claiming that he is entitled to a new trial or new penalty

phase based on newly discovered evidence. Harvey claimed that

new evidence demonstrates the human brain is not fully developed

by eighteen years of age and continues to develop into an

individual’s twenties. He claims that, although he was twenty-two

years old at the time of the murders, his brain was not fully

developed, and he had the maturity of less than a nineteen-year-

old, thereby rendering his convictions suspect and ineligible for the

death penalty. In support, Harvey cited a new “scientific

consensus” by the American Psychological Association (APA), the

American Psychiatric Association, and the American Association on

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Intellectual and Developmental Disabilities supporting his claim

about brain development continuing into the twenties. The

consensus was a 2022 resolution by the APA that called on courts

and state and federal legislative bodies to ban the death penalty in

cases in which the defendant is younger than twenty-one. Harvey

also raised a claim of cumulative error, claiming that the “newly

discovered evidence” compounds the other errors in his case.

With his motion, Harvey also submitted reports by two

neuroscientists that examined Harvey’s case—but did not physically

examine Harvey—against this “new scientific consensus.” Neither

expert references the APA resolution. The first report, by Dr. Leah

Somerville, provided a summary of the brain and behavioral

development during adolescence and young adulthood. In her

report, Dr. Somerville acknowledged that she had not met with or

evaluated Harvey. The report did not “express any opinion on Mr.

Harvey’s specific trajectory of brain development, behavior, or

circumstances surrounding the alleged crimes.” She concluded

that Harvey’s state of brain development was likely still maturing at

the time of the crime and “may have been further compromised by

adverse experiences and brain injury” during his youth. Dr. James

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Merikangas authored the second report. In it he opined that, based

upon a review of the trial court records, Harvey’s brain was still

developing. 3 Dr. Merikangas concluded that Harvey was

“essentially an adolescent.”

The postconviction court held a case management conference

and thereafter denied Harvey’s motion. In doing so, the court

adopted the State’s argument and reasoning. The court determined

that Harvey did not meet his burden to overcome the timeliness and

procedural bars to his newly discovered evidence claim. Second,

the court found that his claim was meritless, as neither this Court

nor the U.S. Supreme Court has held that people over the age of

eighteen (other than the intellectually disabled) are ineligible for the

death penalty nor expanded the bar to include “mental ages” under

eighteen. The court also found that because Harvey’s individual

claims were meritless, the claim of cumulative error also failed. The

court then denied Harvey’s motion for rehearing in April 2024. This

timely appeal follows.

3. Dr. Merikangas also did not evaluate Harvey, but he
recommended further testing.

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II

When a postconviction court denies a successive rule 3.851

motion without an evidentiary hearing, this Court reviews the

decision de novo. Pardo v. State, 108 So. 3d 558, 561 (Fla. 2012);

see also Gaskin v. State, 218 So. 3d 399, 400 (Fla. 2017).

A

First, Harvey claims the postconviction court erred by

adopting the State’s reasoning and argument in the final order. As

he puts it, the postconviction court “incorporated by reference the

State’s answer and adopted the State’s reasoning” in denying

Harvey relief.

A court may adopt a party’s written argument in denying

postconviction relief. Pietri v. State, 885 So. 2d 245, 269-70 (Fla.

2004) (finding no error in a capital case where a postconviction

court issued an order and stated the State’s post-evidentiary

hearing memorandum was “incorporated by reference”); see also

Patton v. State, 784 So. 2d 380, 388-91 (Fla. 2000) (finding no error

where the trial court “chose to adopt the State’s arguments as an

accurate and well-documented reflection of the facts and law

pertaining to the issues” (citing Anderson v. Bessemer City, 460

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U.S. 564, 572 (1985))); Groover v. State, 640 So. 2d 1077, 1078-79

(Fla. 1994) (finding no due process violation where the trial court

adopted the State’s proposed order denying a defendant relief on his

Florida Rule of Criminal Procedure 3.850 motion).

Here, the trial court incorporated some of the State’s facts and

argument in writing its order. Like Pietri, the court did not simply

sign a proposed order written by the State. 885 So. 2d at 269-70.

Instead, the judge authored her own two-page order that

“incorporated by reference” the State’s answer reasoning and

hearing argument. The court then explained why Harvey’s motion

for postconviction relief failed. There is no authority prohibiting the

postconviction court from doing so. It was therefore not error for

the postconviction court to incorporate the State’s answer reasoning

and hearing argument in its order denying Harvey relief.

B

Next, Harvey claims that the postconviction court did not

apply the required standard when it summarily denied his motion.

Under Pardo, a postconviction court should hold an evidentiary

hearing on a rule 3.851 motion “whenever the movant makes a

facially sufficient claim that requires a factual determination.”

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Pardo, 108 So. 3d at 560 (citation omitted).

Rule 3.851 sets up the pleading requirements for both initial

and successive postconviction motions. Fla. R. Crim. P. 3.851(e)(1)-

(2). When a defendant seeks postconviction relief for the first time,

a court must grant an evidentiary hearing unless the movant’s

claims are “legally insufficient, should have been brought on direct

appeal, or are positively refuted by the record.” Pardo, 108 So. 3d

at 561 (citation omitted). For a claim of newly discovered evidence

to be facially sufficient, it must meet the two-part test established

in Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). See also Rodgers

v. State, 288 So. 3d 1038, 1039-40 (Fla. 2019); Bogle v. State, 288

So. 3d 1065, 1068-69 (Fla. 2019).

The standard for an evidentiary hearing in a successive motion

for postconviction relief is generally consistent with the standard for

an initial motion. See Rogers v. State, 327 So. 3d 784, 786-87 (Fla.

2021) (applying the Pardo standard to a third successive motion for

postconviction relief). But there are other considerations for

successive motions, such as the requirement that the

postconviction court hold a case management conference to decide

whether an evidentiary hearing is necessary. Fla. R. Crim. P.

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3.851(f)(5)(B). Also, for a successive rule 3.851 motion, “[i]f the

motion, files, and records in the case conclusively show that the

movant is entitled to no relief, the motion may be denied without an

evidentiary hearing.” Id. On the other hand, for an initial rule

3.851 motion, a postconviction court cannot look beyond the filings.

Seibert v. State, 64 So. 3d 67, 75 (Fla. 2010). Thus, for successive

motions, postconviction courts have more latitude to reject claims.

In this case, the postconviction court did not err in focusing its

analysis on timeliness. When a claim of newly discovered evidence

is brought as a successive claim, the defendant must show an

exception to the time limitation in Florida Rule of Criminal

Procedure 3.851(d)(1). See Howell v. State, 145 So. 3d 774, 775

(Fla. 2013). This rule requires that “[a]ny motion to vacate

judgment of conviction and sentence of death must be filed by the

defendant within 1 year after the judgment and sentence become

final.” Fla. R. Crim. P. 3.851(d)(1). Because Harvey’s sentences

became final in 1989, his successive postconviction claim falls

outside the one-year time limitation, and he was required to show:

(1) newly discovered evidence; (2) a new constitutional right held to

apply retroactively; or (3) counsel’s neglect to file a motion. See Fla.

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R. Crim. P. 3.851(d)(2) (precluding consideration of an untimely

motion); Kight v. State, 784 So. 2d 396, 400 (Fla. 2001). Because of

that standard, the postconviction court correctly evaluated whether

to hold an evidentiary hearing.

III

Harvey next argues that he is entitled to an evidentiary

hearing based on his newly discovered evidence claim, but again,

we find no error. As we have already discussed, with certain

exceptions, a defendant must generally file a rule 3.851 motion for

postconviction relief within one year of the judgment and sentence

becoming final. See Fla. R. Crim P. 3.851(d)(1). For Harvey to

overcome the time bar, he must show that at the time of trial any

“newly discovered evidence” was “unknown by the trial court, by the

party, or by counsel . . . and it could not have been discovered

through due diligence, and . . . that the evidence is of such a nature

that it would probably . . . yield a less severe sentence on retrial.”

Dillbeck v. State, 357 So. 3d 94, 100 (Fla. 2023) (third omission in

original) (quoting Dailey v. State, 329 So. 3d 1280, 1285 (Fla.

2021)); see also Jones, 709 So. 2d at 521 (establishing the two-part

test to set aside a conviction based on newly discovered evidence).

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In addition, an intellectual disability claim based on newly

discovered evidence “must be filed ‘within one year of the date upon

which the claim became discoverable through due diligence.’ ”

Dillbeck, 357 So. 3d at 99 (quoting Pittman v. State, 337 So. 3d 776,

777 (Fla. 2022)).

Harvey argues that he can overcome the procedural bar

because the evidence upon which his claim is based could not have

been known at the appropriate time through the exercise of due

diligence. Jimenez v. State, 997 So. 2d 1056, 1063 (Fla. 2008)

(citing Fla. R. Crim. P. 3.851(d)(2)). But as the postconviction court

concluded, Harvey “failed to meet his burden to overcome the

untimeliness and procedural bar.”

To the extent that Harvey challenges the trial court’s decision

not to consider his “mental age” as a mitigating circumstance, that

is an issue that he should have raised on direct appeal.

Muhammad v. State, 603 So. 2d 488, 489 (Fla. 1992) (noting

“[i]ssues which either were or could have been litigated at trial and

upon direct appeal are not cognizable through collateral attack”).

To the extent that Harvey challenges his death sentences based on

his IQ, that claim is also procedurally barred as having been

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previously raised. 4 Bogle v. State, 322 So. 3d 44, 46 (Fla. 2021)

(holding that a postconviction court should reject a claim for

postconviction relief when it is not distinguishable from issues

raised in previous motions); see also Barwick v. State, 361 So. 3d

785, 795 (Fla. 2023) (rejecting a postconviction claim because it

was “a variation of claims that were raised in prior proceedings”).

Even were it a new claim though, it would still be procedurally

barred. Zack v. State, 371 So. 3d 335, 347 (Fla. 2023) (citing

Barwick, 361 So. 3d at 795); see also Branch v. State, 236 So. 3d

981, 986 (Fla. 2018) (holding that an extension-of-Roper claim was

procedurally barred in an active warrant case because it could have

been raised previously); Simmons v. State, 105 So. 3d 475, 511 (Fla.

2012) (rejecting as procedurally barred a claim, based on Roper and

Atkins, that the defendant was exempt from execution based on

mental illness and neuropsychological deficits because it could have

been raised in prior proceedings).

4. In his first successive motion for postconviction relief,
Harvey raised the claim that his death sentence was prohibited
because he was “intellectually disabled.” The postconviction court
rejected Harvey’s claim because his IQ was 86 and therefore within
the normal range.

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Likewise, Harvey’s introduction of the August 2022 APA

Resolution and the 2023 reports of Dr. Somerville and Dr.

Merikangas to his case do not help him overcome the procedural

bar. 5 “This Court has routinely held that resolutions, consensus

opinions, articles, research, and the like, do not constitute newly

discovered evidence.” Barwick, 361 So. 3d at 793 (citing Foster v.

State, 258 So. 3d 1248, 1253 (Fla. 2018); Branch, 236 So. 3d at

984-87; Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007);

Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006)). For

example, in Barwick we concluded that the same resolution upon

which Harvey relies did not constitute newly discovered evidence

because it was based on “a compilation of studies, research, data,

and reports, published between 1992 and 2022 and relying on data

from as early as 1977.” Id. Our conclusion in Barwick applies

equally here. See also Melton v. State, 367 So. 3d 1175, 1177 (Fla.

2023) (holding that a declaration from a neurodevelopmental

5. Since the APA Resolution was published in August 2022,
Harvey’s time to file a claim based on newly discovered evidence
expired in August 2023. See Dillbeck, 357 So. 3d at 99. Therefore,
his claim cannot be based solely on the APA Resolution. It must be
based on the 2023 reports of Dr. Somerville and Dr. Merikangas.

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psychologist that the human brain does not fully develop until late

adolescence is not “newly discovered evidence”); Zack, 371 So. 3d at

346-47 (concluding that “new scientific consensus” is not newly

discovered evidence and the claim was procedurally barred).

As for the reports by Dr. Somerville and Dr. Merikangas, they

do not distinguish Harvey’s case from Barwick, and they do not

change this Court’s analysis. This Court has held that “new

opinions” or “new research studies” are not newly discovered

evidence. Schwab, 969 So. 2d at 325 (citing Diaz v. State, 945 So.

2d 1136, 1144 (Fla. 2006)); see also Booker v. State, 413 So. 2d

756, 757 (Fla. 1982) (concluding that “newly discovered evidence”

cannot be a “new interpretation of facts that were known and

considered at trial”). Here, Dr. Somerville and Dr. Merikangas did

not provide any new information about Harvey’s mental state at the

time of the crime. Neither Dr. Somerville nor Dr. Merikangas visited

Harvey. In her report, Dr. Somerville concluded that based on her

own research, Harvey’s brain was likely still maturing at the time of

the crime. Dr. Merikangas concluded that Harvey “did not have the

normal brain of a 22-year-old” and recommended further testing.

These reports are not newly discovered evidence. See Asay v. State,

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210 So. 3d 1, 23 (Fla. 2016) (“Merely obtaining a new expert to

review the same records does not create newly discovered evidence.”

(citing Howell v. State, 145 So. 3d 774, 775 (Fla. 2013))).

For all the above reasons, Harvey has not demonstrated that

the postconviction court erred in rejecting his claim.

IV

Finally, Harvey argues that the cumulative effect of the “newly

discovered evidence” undermines the validity of his death

sentences. Harvey argues that the newly discovered evidence of his

“diminished capacity due to his underdeveloped and damaged

brain, impaired intellectual functioning, and mental illnesses . . .

undercut[s] every aspect of his case.” As explained above, Harvey’s

underlying claims have no merit. Therefore, the postconviction

court also properly denied his claim of cumulative error. Griffin v.

State, 866 So. 2d 1, 22 (Fla. 2003) (“[W]here individual claims of

error alleged are either procedurally barred or without merit, the

claim of cumulative error must fail.” (citing Downs v. State, 740 So.

2d 506, 509 n.5 (Fla. 1999))).

Beyond a standard cumulative error claim, Harvey argues that

“[t]he failure to appreciate the extent of [his] mental condition

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resulted in cumulative errors [at trial].” He raises issues related to

whether (1) the waiver of his rights under Miranda was knowing and

voluntary, (2) his confession was voluntary, (3) he was incompetent

to assist with his defense and whether his counsel’s decision to

concede guilt was ineffective, (4) he lacked the mens rea to commit

first-degree murder, (5) rejection of the age and mental health

mitigation was proper, and (6) the trial court properly evaluated and

weighed sentencing factors. As the State argues, this claim is

“impermissibly attempting to bootstrap untimely, procedurally

barred, and non-cognizable claims with evidence that has been

deemed not to qualify as ‘newly discovered.’ ”

The State is correct that all these claims were either denied

previously or are procedurally barred. On direct appeal, Harvey

argued that the court should suppress his confession because law

enforcement did not tell him that a public defender was present at

the police station to talk with him. Harvey I, 529 So. 2d at 1085.

Harvey also raised variations of several of these claims in his initial

postconviction motion, where he argued that his trial counsel was

ineffective for (1) failing to investigate and present evidence of

mental mitigation, (2) failing to adequately investigate and present

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mitigating evidence, (3) admitting Harvey’s guilt during opening

statement, and (4) failing to make several arguments in support of

his motion to suppress Harvey’s confession. Harvey III, 946 So. 2d

at 941.

The other issues—including Harvey’s waiver of his Miranda

rights, whether Harvey had the requisite mens rea, the rejection of

the age and mental health mitigation, and the weighing of

sentencing factors––all should have been raised on direct appeal.

Muhammad, 603 So. 2d at 489 (“Issues which either were or could

have been litigated at trial and upon direct appeal are not

cognizable through collateral attack.”); Medina v. State, 573 So. 2d

293, 295 (Fla. 1990) (“[I]t is inappropriate to use a different

argument to relitigate the same issue.” (citation omitted)). Further,

cumulative trial error itself is an issue for direct appeal. Occhicone

v. State, 768 So. 2d 1037, 1040 n.3 (Fla. 2000) (finding a defendant

must raise a cumulative impact claim on direct appeal and is

procedurally barred in a collateral case (citing Torres-Arboleda v.

Dugger, 636 So. 2d 1321, 1323-24 (Fla. 1994))). Therefore, the

postconviction court did not err in rejecting Harvey’s cumulative

error argument.

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V

For the reasons above, we affirm the summary denial of

Harvey’s successive motion for postconviction relief.

It is so ordered.

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Okeechobee County,
Laurie E. Buchanan, Judge
Case No. 471985CF000075CFAXMX

Ross B. Bricker of Jenner & Block LLP, Chicago, Illinois,

for Appellant

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

for Appellee

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