Michael Duane Zack, III v. State of Florida

Supreme Court of Florida
____________

No. SC2023-1233
____________

MICHAEL DUANE ZACK, III,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

September 21, 2023

FRANCIS, J.

Michael Duane Zack, III, murdered two women in 1996 over

the course of a nine-day crime spree. On August 17, 2023,

Governor Ron DeSantis signed Zack’s death warrant for the murder

of Ravonne Smith, scheduling Zack’s execution for October 3, 2023.

Zack sought relief, filing his fourth successive postconviction

motion in the circuit court raising two claims: (1) that his execution

should be barred under the Eighth Amendment because his Fetal

Alcohol Syndrome (FAS) is the functional equivalent of an

intellectual disability; and (2) that his execution should be barred
under the Eighth Amendment because the jury’s penalty phase

recommendation to impose the death penalty was not unanimous

(eleven-to-one). The postconviction court summarily denied Zack’s

claims as untimely, procedurally barred, and meritless. We agree

and affirm. 1 We also deny Zack’s motion for stay of execution and

request for oral argument filed in this Court.

I. Facts

We described the facts of the case on direct appeal as follows:

Although the murder of Smith took place on June
13, 1996, the chain of events which culminated in this
murder began on June 4, 1996, when Edith Pope (Pope),
a bartender in Tallahassee, lent her car to Zack. In the
weeks prior, Zack had come to Pope’s bar on a regular
basis. He generally nursed one or two beers and talked
with Pope; she never saw him intoxicated. He told her
that he had witnessed his sister murder his mother with
an axe. As a result, Pope felt sorry for Zack, and she
began to give him odd jobs around the bar. When Zack’s
girlfriend called the bar on June 4 to advise him that he
was being evicted from her apartment, Pope lent Zack her
red Honda automobile to pick up his belongings. Zack
never returned.
From Tallahassee, Zack drove to Panama City where
he met Bobby Chandler (Chandler) at a local pub. Over
the next several days, Zack frequented the pub daily and
befriended Chandler. Chandler, who owned a
construction subcontracting business, hired Zack to
work in his construction business. When Chandler

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

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discovered that Zack was living out of a car (the red
Honda), he invited Zack to live with him temporarily. On
the second night at Chandler’s, Zack woke up screaming
following a nightmare. Chandler heard Zack groan words
which sounded like “stop” or “don’t.” Although Chandler
questioned him, Zack would not discuss the nightmare.
Two nights later, on June 11, 1996, Zack left Chandler’s
during the night, stealing a rifle, a handgun, and forty-
two dollars from Chandler’s wallet. Zack drove to
Niceville, and on the morning of June 12, 1996, pawned
the guns for $225.
From Niceville, Zack traveled to Okaloosa County
and stopped at yet another bar. At this bar, Zack was
sitting alone drinking a beer when he was approached by
Laura Rosillo (Rosillo). The two left the bar in the red
Honda and drove to the beach, reportedly to use drugs
Zack said he possessed. Once on the beach, Zack
attacked Rosillo and beat her while they were still in the
Honda. He then pulled Rosillo from the car and beat her
head against one of the tires. Rosillo’s tube top was torn
and hanging off her hips. Her spandex pants were pulled
down around her right ankle. The evidence suggests she
was sexually assaulted; however, the sperm found in
Rosillo’s body could not be matched to Zack. He then
strangled her, dragged her body behind a sand dune,
kicked dirt over her face, and departed.
Zack’s next stop on this crime-riddled journey was
Dirty Joe’s bar located near the beach in Pensacola. He
arrived there on the afternoon of June 13, 1996, and met
the decedent, Ravonne Smith. Throughout the
afternoon, Smith, a bar employee, and Zack sat together
in the bar talking and playing pool or darts. The bar was
not very busy, so Smith spent most of her time with
Zack. Both bar employees and patrons testified that
Zack did not ingest any significant amount of alcohol and
that he did not appear to be intoxicated. In the late
afternoon, Smith contacted her friend Russell Williams
(Williams) and invited him to the bar because she was
lonely. Williams arrived at the bar around 5:30 p.m.

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Prior to leaving the bar around 7 p.m., Smith called her
live-in boyfriend, Danny Schaffer, and told him she was
working late. Smith, Williams, and Zack then left the bar
and drove to the beach where they shared a marijuana
cigarette supplied by Zack. Afterwards, they returned to
the bar and Williams departed. Zack and Smith left the
bar together sometime around 8 p.m. and eventually
arrived at the house Smith shared with her boyfriend.
Forensic evidence indicates that immediately upon
entering the house Zack hit Smith with a beer bottle
causing shards of glass and blood to spray onto the living
room love seat and two drops of blood to spray onto the
interior doorframe. Zack pursued Smith down the hall to
the master bedroom leaving a trail of blood. Once in the
bedroom Zack sexually assaulted Smith as she lay
bleeding on the bed. Following the attack Smith
managed to escape to the empty guest bedroom across
the hall. Zack pursued her and beat her head against
the bedroom’s wooden floor. Once he incapacitated
Smith, Zack went to the kitchen where he got an oyster
knife. He returned to the guest bedroom where Smith lay
and stabbed her in the chest four times with the knife.
The four wounds were close together in the center of
Smith’s chest. Zack went back to the kitchen, cleaned
the knife, put it away, and washed the blood from his
hands. He then went back to the master bedroom,
placed Smith’s bloody shirt and shorts in her dresser
drawer, stole a television, a VCR, and Smith’s purse, and
placed the stolen items in Smith’s car.
During the night, Zack drove Smith’s car to the area
where the red Honda was parked. He removed the
license plate and several personal items from the Honda
then moved it to a nearby lot. Zack returned to Panama
City in Smith’s car and attempted to pawn the television
and VCR. Suspecting the merchandise was stolen, the
shop owners asked for identification and told Zack they
had to check on the merchandise. Zack fled the store
and abandoned Smith’s car behind a local restaurant.

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Zack was apprehended after he had spent several days
hiding in an empty house.
After he was arrested, Zack confessed to the Smith
murder and to the Pope and Chandler thefts. Zack
claimed he and Smith had consensual sex and that she
thereafter made a comment regarding his mother’s
murder. The comment enraged him, and he attacked
her. Zack contended the fight began in the hallway, not
immediately upon entering the house. He said he
grabbed a knife in self-defense, believing Smith left the
master bedroom to get a gun from the guest bedroom.

Zack v. State (Zack I), 753 So. 2d 9, 13–14 (Fla. 2000) (footnotes

omitted).

During the guilt phase, Zack’s defense was that due to

suffering from FAS as well as posttraumatic stress disorder (PTSD),

he was “impulsive, under constant mental and emotional distress,

and could not form the requisite intent to commit premeditated

murder.” Id. at 14. The State’s theory, on the other hand, was that

“Zack was a calculated stalker/predator, who stalked his prey in

bars.” Id. “His method of operation included befriending his prey,

gaining each person’s sympathy with stories of his mother’s death

and his abusive childhood, then taking advantage of the persons by

either robbing or sexually assaulting them.” Id. The jury found

Zack guilty on all counts on September 15, 1997.

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During Zack’s penalty phase, to establish statutory mitigators,

Zack presented four expert witnesses who discussed Zack’s mental

and emotional health including his FAS. Dr. William Spence, a

forensic psychologist, had previously diagnosed Zack with PTSD

when evaluating Zack in connection with an earlier offense. The

other three experts, Dr. James Larson, Dr. Barry Crown, and Dr.

Michael Maher, evaluated Zack after the murders of Ms. Smith and

Ms. Rosillo, and each diagnosed Zack with both PTSD and FAS.

Though none of the experts spoke to anyone who had contact with

Zack around the time of the murders, they “opined that the murder

was committed while Zack was under an extreme mental or

emotional disturbance and that Zack’s ability to appreciate the

criminality of his conduct was substantially impaired.” Id. at 15.

One of Zack’s experts also presented evidence of his IQ. Dr.

Larson testified that Zack had a full-scale IQ of 92. According to

Dr. Larson, Zack’s performance score was 104 and his verbal score

was 84. He opined that the twenty-point difference is statistically

significant and makes it highly probable that Zack has organic

brain damage.

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In rebuttal, the State’s expert, neuropsychologist Dr. Eric

Mings, testified that Zack’s full-scale IQ score was 86—in the low

average range. He testified that “[h]e could not diagnose Zack with

fetal alcohol syndrome because there were too many variables.” Id.

The State’s other expert, forensic psychologist Dr. Harry

McClaren, “indicated he administered the MMPI to Zack, but the

malingering scale was outside of the normal limits, making the test

useless.” Id. “Dr. McClaren opined, after interviews with persons

who had contact with Zack around the time of the murder, that the

statutory mental mitigators did not apply and that Zack’s actions

around the time of the murder were more planned than

spontaneous.” Id.

Additionally, Dr. McClaren testified that he diagnosed Zack as

having a personality disorder with prominent antisocial features.

Dr. McClaren also testified that Zack had anger directed toward

women.

Following the penalty phase, the jury voted to recommend the

death sentence by eleven to one. The trial court imposed the death

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sentence after finding six aggravators. 2 The trial court also found

there were four mitigators, including that Zack committed the crime

while under an extreme mental or emotional disturbance and that

he lacked capacity to understand the criminality of his conduct.

But the trial court gave these mitigating circumstances little

weight. 3

We affirmed Zack’s conviction and death sentence on direct

appeal. Id. at 26. Zack’s conviction and sentence became final on

October 2, 2000, when the United States Supreme Court denied

2. The trial judge found the following six aggravating
circumstances: (1) the defendant was convicted of a capital felony
while under a sentence of felony probation; (2) the crime was
committed in conjunction with a robbery, sexual battery, or
burglary; (3) the defendant committed the crime to avoid lawful
arrest; (4) the defendant committed the crime for financial gain; (5)
the crime was especially heinous, atrocious, and cruel; and (6) the
crime was committed in a cold, calculated, and premeditated
manner.

3. The trial court found that the following four mitigating
circumstances were entitled to little weight: (1) the defendant
committed the crime while under an extreme mental or emotional
disturbance; (2) the defendant was acting under extreme duress; (3)
the defendant lacked the capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of law;
and (4) nonstatutory mitigating factors of remorse, voluntary
confession, and good conduct while incarcerated.

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certiorari review. Zack v. Florida, 531 U.S. 858 (2000). Among the

twelve issues raised on direct appeal, Zack launched no challenge

to the jury’s nonunanimous recommendation to impose the death

sentence during the penalty phase, nor did he allege that he should

be categorically exempt from execution under the Eighth

Amendment. 4

Zack filed his first postconviction motion in 2002. That same

year, the United States Supreme Court decided two landmark death

4. Zack raised the following claims of error on direct appeal,
alleging that the trial court erred by: (1) admitting similar fact
evidence under Williams v. State, 110 So. 2d 654 (Fla. 1959); (2 & 3)
denying a motion for judgment of acquittal on the sexual battery
charge and on the robbery charge, respectively; (4) instructing the
jury on felony murder based upon a burglary; (5) failing to consider
all of Zack’s mitigating evidence in the sentencing order; (6 & 7)
finding two aggravators, that the murder was committed to avoid or
prevent a lawful arrest and was committed in a cold, calculated,
and premeditated manner, respectively; (8) using victim impact
evidence; (9) admitting rebuttal evidence from Zack’s former
girlfriend, Candice Fletcher; (10) failing to give Zack’s proposed
instruction on sympathy; (11) retroactively applying the aggravating
factor of a murder committed while on felony probation; and (12)
refusing to admit a family photo during the penalty phase. Zack I,
753 So. 2d at 16 n.5. This Court agreed with Zack on claim (6),
that the “prevent lawful arrest” aggravator was not established, but
this Court concluded it was harmless error. This Court also agreed
with Zack on claim (11), that the felony probation aggravator was
not retroactive, but again, this Court concluded that it was
harmless error, particularly in light of the other four aggravators
that supported imposition of the death penalty.

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penalty decisions: Atkins v. Virginia, 536 U.S. 304 (2002) (holding

that the Eighth Amendment does not permit the execution of

“mentally retarded” defendants), 5 and Ring v. Arizona, 536 U.S. 584

(2002) (holding that the Sixth Amendment requires a jury, not a

sentencing judge alone, to find an aggravating circumstance

necessary to impose the death penalty). Unsurprisingly, among

Zack’s six initial postconviction claims 6 were an Atkins and a Ring

claim.

5. Before Atkins was decided, the Florida Legislature created
section 921.137, Florida Statutes (2001), which prohibited the
execution of “mentally retarded” defendants; i.e., a defendant with
“significantly subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and manifested
during the period from conception to age 18.” Ch. 2001-202, § 1,
Laws of Fla. “[S]ignificantly subaverage general intellectual
functioning” was defined as meaning “performance that is two or
more standard deviations from the mean score on a standardized
intelligence test specified in the rules of the Department of Children
and Family Services.” Id. In 2006, the Legislature changed the
responsible agency for the standardized intelligence test to the
Agency for Persons with Disabilities. Ch. 2006-195, § 23, Laws of
Fla. In 2013, the Legislature substituted the term “intellectual
disability” for “mental retardation.” Ch. 2013-162, § 38, Laws of
Fla. Otherwise, the definitions have not been materially changed.

6. Zack’s registry counsel raised six issues in his motion for
postconviction relief: (1) whether counsel was ineffective for failing
to object to DNA evidence and for failing to request a hearing under
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (2) whether the
trial court erred in failing to sua sponte hold a Frye hearing; (3)

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To establish his Atkins claim for his 2002 postconviction

motion, Zack was evaluated by Brett Turner, Psy.D., who prepared

a neuropsychological evaluation for collateral counsel during

postconviction litigation. Dr. Turner performed a WAIS-III IQ test in

2002 that showed a current full-scale IQ of 79. Dr. Turner’s written

report also referred to a prior IQ test performed in 1980 when Zack

was eleven years old, showing a full-scale IQ of 92. The

postconviction court, however, relying on expert testimony from

trial reflecting that Zack’s IQ was 84 or 86, summarily denied

Zack’s Atkins claim because he did not meet the statutory definition

of intellectually disabled. Zack v. State (Zack II), 911 So. 2d 1190,

whether trial counsel was ineffective for calling Zack to testify
without preparing him for cross-examination or explaining to him
that he had a choice whether to testify; (4) whether the death
penalty is disproportionate due to Zack’s possible brain dysfunction
and mental impairment, both of which are in the same category as
mental retardation and prohibit Zack’s execution under Atkins; (5)
whether trial counsel was ineffective in closing arguments to the
jury; and (6) whether the sentence is unconstitutional pursuant to
Ring. Zack v. State (Zack II), 911 So. 2d 1190, 1196 (Fla. 2005).
The trial court summarily denied issues two, four, and six, but held
an evidentiary hearing on issues one, three, and five. The trial
court ultimately denied all postconviction relief.

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1196 (Fla. 2005). The trial court also summarily denied his Ring

claim.

Zack appealed the postconviction court’s order in 2005 and

raised five issues, including challenges to the trial court’s summary

denial of his Atkins and Ring claims. 7 Zack also filed a petition for

writ of habeas corpus which was addressed in Zack II. 8 This Court

affirmed the summary denial of Zack’s Atkins claim in Zack II,

7. On postconviction appeal, Zack raised the following issues:
(1) trial counsel’s ineffectiveness for failing to challenge the State’s
DNA evidence; (2) trial counsel’s ineffectiveness for failing to prepare
Zack to testify at trial; (3) trial counsel’s ineffectiveness in making
prejudicial remarks to the jury in both opening statement and
closing argument; (4) the postconviction court erred in summarily
denying Zack’s postconviction claims involving Zack’s right to a
Frye hearing and the constitutionality of the death sentence under
Atkins; (5) that Florida’s capital sentencing scheme is
unconstitutional under Ring; and (6) postconviction counsel was
ineffective. Zack II, 911 So. 2d at 1197.

8. In his habeas petition, Zack alleged that his appellate
counsel was ineffective for failing to raise six claims on direct
appeal: (1) that the State’s peremptory challenge during jury
selection was racially motivated; (2) that the prosecutor made
impermissible arguments to the jury; (3) that the State
impermissibly introduced nonstatutory aggravating factors; (4) that
the trial court erred by admitting crime scene photos that were
prejudicial and gruesome; (5) that the trial court erred by admitting
evidence of other crimes; and (6) that the trial court erred by
admitting irrelevant and prejudicial evidence. Zack II, 911 So. 2d at
1203.

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noting that Zack did not meet the statutory criteria based even on

his lowest IQ score of 79, and that Atkins claims should be raised in

a motion filed under Florida Rule of Criminal Procedure 3.203. 911

So. 2d at 1201–02. As to Zack’s Ring claim, this Court held, in

part, that because Ring did not retroactively apply to cases that

were already final when it was decided, Ring did not apply to Zack’s

sentence. Id. at 1203. Thus, this Court affirmed the postconviction

court’s order and denied Zack’s petition for habeas relief. Id. at

1211.

We set out most of Zack’s subsequent, successive

postconviction history related to his intellectual disability claim in

Zack v. State (Zack III):

Zack filed a successive postconviction motion on
December 1, 2004, raising an Atkins claim. The trial
court denied the claim without an Atkins hearing, finding
that after a review of the expert trial testimony none had
found Zack’s I.Q. to be near the required statutory figure
of 70 in order to establish intellectual disability. This
Court affirmed the trial court’s denial [by order]. In its
order, this Court relied on Cherry v. State, 781 So. 2d
1040 (Fla. 2000), and held that “Zack has not provided
any new evidence of [intellectual disability] and previous
evidence demonstrates that his I.Q. was well above the
statutory figure of 70 or below.” [Zack v. State, 982 So.
2d 1179 (Fla. 2007) (table).]
On March 4, 2005, Zack filed a second petition for a
writ of habeas corpus based upon the Supreme Court’s

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decision in Crawford v. Washington, 541 U.S. 36 (2004).
This Court denied the petition on October 6, 2005. Zack
v. Crosby, 918 So. 2d 240 (Fla. 2005).
Zack also filed a federal habeas petition that
included an Atkins claim. Zack v. Crosby, 607 F.Supp.2d
1291 (N.D. Fla. 2008). All claims not based on Atkins
were dismissed with prejudice as untimely. Id. at 1295.
Zack’s Atkins claim was denied with prejudice on the
merits on March 26, 2009. In its order, the court found
that the record refuted Zack’s allegation that he is
intellectually disabled and held that the record uniformly
concluded that Zack’s I.Q. was significantly above the
minimum threshold for intellectual disability. The
Eleventh Circuit, in an en banc opinion, affirmed the
dismissal of many of the claims in the habeas petition as
untimely. Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013).
The Supreme Court denied certiorari review on October
7, 2013. Zack v. Crews, [571 U.S. 863] (2013).
On May 26, 2015, Zack filed a second successive
postconviction motion raising a claim of intellectual
disability based on Hall v. Florida, [572 U.S. 701] (2014).
The trial court summarily denied the motion on July 8,
2015.

228 So. 3d 41, 45–46 (Fla. 2017) (second alteration in original).

This Court affirmed the postconviction court’s summary denial

of the Hall claim in Zack III, explaining that Zack was unable to

“present additional evidence of intellectual disability” because his

“I.Q. test score falls within the test’s acknowledged and inherent

margin of error.” Id. at 46 (quoting Hall, 572 U.S. at 723). As this

Court further explained,

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At the Huff [v. State, 622 So. 2d 982 (Fla. 1993)] hearing,
Zack presented his full range of scores, as well as
evidence of adaptive deficits before age 18. The record
demonstrates five I.Q. scores for Zack: a score of 92 in
1980 when Zack was 11 years old, and four scores after
Zack turned 18—84 and 86 in 1997 at 27 years of age,
79 in 2002, and 80 in 2015. While a holistic hearing is
required, defendants must still be able to meet the first
prong of Hall. Because Zack’s current score is well above
75, and there are no scores in his history below 75, it is
unlikely that he would ever be able to satisfy the
significantly subaverage intellectual functioning prong.

Id. at 47 (footnote omitted).

Zack also filed a successive habeas petition asserting that his

death sentence is unconstitutional under Hurst v. Florida, 577 U.S.

92 (2016). Zack III, 228 So. 3d. at 47. This Court denied this claim

in Zack III, holding that Hurst has been interpreted as an extension

of Ring and does not apply retroactively to cases that were final

before Ring was decided. Id. at 47–48. The United States Supreme

Court denied certiorari review. Zack v. Florida, 138 S. Ct. 2653

(2018).

Nonetheless, Zack filed his third successive postconviction

motion in 2017, raising five claims that were all dependent on the

retroactive application of Hurst. Zack v. State (Zack IV), 43 Fla. L.

Weekly S429 (Fla. Oct. 4, 2018). The postconviction court

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summarily denied relief, holding that Zack’s sentence was final

before Ring, so Hurst did not retroactively apply to him. Id. at

S429. This Court affirmed in 2018, id. at S430, and the United

States Supreme Court denied certiorari review. Zack v. Florida, 139

S. Ct. 1622 (2019).

On August 17, 2023, Governor DeSantis issued a death

warrant for the execution of Zack. The execution is scheduled for

Tuesday, October 3, 2023, at 6:00 p.m. Zack timely filed his fourth

successive postconviction motion raising two claims asserting that

his execution is barred by the Eighth Amendment on the basis that

(1) his FAS diagnosis is the functional equivalent of an intellectual

disability, and (2) his penalty phase jury recommendation was not

unanimous. The postconviction court summarily denied both

claims, finding both to be untimely, procedurally barred, and

meritless under this Court’s recent Dillbeck decision. See Dillbeck

v. State, 357 So. 3d 94 (Fla. 2023).

On appeal, Zack asserts that the postconviction court erred by

summarily denying his fourth successive postconviction motion.

We find no error and affirm.

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II. Analysis

“Summary denial of a successive postconviction motion is

appropriate ‘[i]f the motion, files, and records in the case

conclusively show that the movant is entitled to no relief.’ ” Owen

v. State, 364 So. 3d 1017, 1022 (Fla. 2023) (quoting Bogle v. State,

322 So. 3d 44, 46 (Fla. 2021) (alteration in original)). The

appropriate standard of review of “the circuit court’s decision to

summarily deny a successive rule 3.851 motion [is] de novo,

accepting the movant’s factual allegations as true to the extent they

are not refuted by the record, and affirming the ruling if the record

conclusively shows that the movant is entitled to no relief.” Id. at

1022–23 (quoting Walton v. State, 3 So. 3d 1000, 1005 (Fla. 2009)).

It is also appropriate for a postconviction court to summarily

dismiss claims raised in a successive postconviction motion that are

untimely or procedurally barred. See Fla. R. Crim. P. 3.851(e)(2) (“A

claim raised in a successive motion shall be dismissed if the trial

court finds that it fails to allege new or different grounds for relief

and the prior determination was on the merits; or, if new and

different grounds are alleged, the trial court finds that the failure to

assert those grounds in a prior motion constituted an abuse of the

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procedure; or, if the trial court finds there was no good cause for

failing to assert those grounds in a prior motion; or, if the trial court

finds the claim fails to meet the time limitation exceptions set forth

in subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).”).

With some exceptions, Florida Rule of Criminal Procedure

3.851(d) bars “[a]ny motion to vacate judgment of conviction and

sentence of death” not filed “within 1 year after the judgment and

sentence become final.” 9 But there are three exceptions to raising

postconviction claims outside of the one-year timeframe:

(A) the facts on which the claim is predicated were
unknown to the movant or the movant’s attorney and
could not have been ascertained by the exercise of due
diligence, or
(B) the fundamental constitutional right asserted was not
established within the period provided for in subdivision
(d)(1) and has been held to apply retroactively, or
(C) postconviction counsel, through neglect, failed to file
the motion.

Fla. R. Crim. P. 3.851(d)(2)(A)–(C).

9. Under rule 3.851(d)(1)(A) and (B), a judgment becomes final
upon either “the expiration of the time permitted to file in the
United States Supreme Court a petition for writ of certiorari seeking
review of the Supreme Court of Florida decision affirming a
judgment and sentence of death (90 days after the opinion becomes
final)” or upon “the disposition of the petition for writ of certiorari by
the United States Supreme Court, if filed.”

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A. Extension of Atkins

In his first issue on appeal, Zack claims that the

postconviction court erred by summarily denying his claim—that

FAS is the functional equivalent of an intellectual disability under

the Eighth Amendment and Atkins—as untimely, procedurally

barred, and meritless. Finding no error, we agree and affirm.

(1) Timeliness

The postconviction court found that Zack’s claims were

untimely filed under rule 3.851(d)(1), and that he improperly seeks

to avoid this procedural bar under rule 3.851(d)(2) by asserting

there is a new consensus—based on research articles and

opinions—that FAS is now considered to be equivalent to an

intellectual disability. The postconviction court is correct.

Zack’s FAS claim meets none of the exceptions under rule

3.851(d)(2)(A)–(C). As demonstrated by the extensive history of

Zack’s postconviction and habeas proceedings, the facts upon

which his intellectual disability claim is predicated have long been

known to him and his attorneys. He has long known his IQ score

range (the lowest score of 79 was established in 2002) and his

experts’ FAS diagnosis (relied on at trial in 1997). Yet, he relies on

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this twenty-year-old-plus information to now claim he should be

deemed intellectually disabled and, thus, categorically exempt from

execution under Atkins. But Zack raises no newly discovered

evidence on this point. See Dillbeck, 357 So. 3d at 99 (“[A]n

intellectual disability claim that is based on newly discovered

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

claim became discoverable through due diligence.’ ”) (quoting

Pittman v. State, 337 So. 3d 776, 777 (Fla. 2022)).

Zack instead cites to “new scientific consensus” found in

several articles published in 2017 and 2021, though one was

corrected in 2022. 10 Zack also offered a declaration from one of the

article’s authors, Natalie Novick Brown, Ph.D., who evaluated Zack

and explained why FAS (which is the most severe form of Fetal

10. There are three cited articles: (1) Stephen Greenspan,
Natalie Novick Brown & William J. Edwards, Determining Disability
Severity Level for Fetal Alcohol Spectrum Disorder: Assessing the
Extent of Impairment, Evaluating Fetal Alcohol Spectrum Disorders
in the Forensic Context (Springer, 2021; corrected, 2022); (2)
Natalie Novick Brown & Stephen Greenspan, Diminished Culpability
in Fetal Alcohol Spectrum Disorders (FASD), 2021 Behav. Sci. L. 1;
and (3) Jerrod M. Brown, et al., Fetal Alcohol Spectrum Disorders
(FASD) and Competency to Stand Trial (CST), 52 Int’l. J. L. & Psych.
19, 21–22 (2017).

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Alcohol Spectrum Disorders (FASD)), is now recognized as being

equivalent to an intellectual disability. She also explained why IQ

scores, though relevant, are an “outmoded concept” for determining

intellectual disability. But these articles and Dr. Novick Brown’s

declaration rely on older sources. Dr. Novick Brown’s declaration

notes that she helped promulgate this information within the legal

community in 2012, through a resolution adopted by the American

Bar Association that she helped author.

This Court has repeatedly held that “ ‘[n]ew opinions or

research studies based on a compilation or analysis of previously

existing data and scientific information’ are not generally

considered newly discovered evidence.” Dillbeck, 357 So. 3d at 99

(quoting Henry v. State, 125 So. 3d 745, 750 (Fla. 2013) (noting that

“Dillbeck cites a 2021 article for the proposition that the medical

and scientific community view ND-PAE as equivalent to intellectual

disability, and that article in turn relies on older sources”)). And

this Court has found “new scientific consensus” to be an

unpersuasive reason to restart the clock for purposes of timely filing

successive postconviction claims. Barwick v. State, 361 So. 3d 785,

793 (Fla. 2023) (affirming summary denial of a successive

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postconviction Eighth Amendment claim as untimely because “the

APA resolution does not constitute newly discovered evidence such

that it creates an exception to the one-year time limitation for filing

postconviction claims”); Sliney v. State, 362 So. 3d 186, 189 (Fla.

2023) (affirming summary denial of a successive postconviction

Eighth Amendment claim seeking to expand Roper v. Simmons, 543

U.S. 551 (2005), based on a new scientific consensus regarding

brain development as untimely).

Additionally, as to the second timeliness exception, Zack cited

to no new case announcing a newly recognized, retroactive

fundamental constitutional right establishing that FAS is the

functional equivalent of an intellectual disability. Rather, it appears

Zack improperly sought to have a new fundamental constitutional

right recognized in his successive rule 3.851 motion. See Carroll v.

State, 114 So. 3d 883, 886 (Fla. 2013) (holding that Caroll’s claim

that Atkins should be extended to mentally ill persons is a claim

“seeking . . . recognition of a new fundamental constitutional right,

which is not properly pled under rule 3.851(d)(2)(B)”).

Finally, Zack’s postconviction counsel throughout the years

certainly have not neglected to raise some form of his current claim,

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that FAS is equivalent to an intellectual disability under Atkins and

bars his execution. Thus, because Zack meets none of the

exceptions to the timeliness requirement set forth in rule

3.851(d)(2)(A)–(C), the postconviction court did not err in finding

this claim to be untimely.

(2) Procedural Bar

The record supports the postconviction court’s conclusion that

Zack’s claim is procedurally barred. Zack has repeatedly raised

some variation of the claim he now raises, that FAS is the

functional equivalent of an intellectual disability under Atkins and

the Eighth Amendment. As noted by the postconviction court’s

order, Zack’s FAS intellectual disability claim was raised and

decided against him in 2002, see Zack II, 911 So. 2d at 1202

(affirming denial of Atkins claim); in 2004, see Zack, 982 So. 2d

1179 (unpublished order affirming summary denial of Atkins claim

where Zack presented no new evidence of intellectual disability); in

2015, see Zack III, 228 So. 3d at 47 (affirming denial of Atkins claim

raised in light of Hall); and in 2017, see Zack IV, 43 Fla. L. Weekly

at S429 (affirming denial of claim pertaining to “a jury finding of

intellectual disability” in light of Hurst).

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Though Zack’s latest claim that FAS is equivalent to an

intellectual disability is grounded in “new scientific consensus” and

“evolving standards of decency,” this Court recently reiterated in

Barwick that “using ‘a different argument to relitigate the same

issue’ . . . is inappropriate.” Barwick, 361 So. 3d at 793 (quoting

Medina v. State, 573 So. 2d 293, 295 (Fla. 1990)). In Barwick, this

Court found Barwick’s claim that he should be “exempt from

execution due to his mental deficiencies” was, at its core, the same

claim he’d previously raised three times and was, thus,

procedurally barred. Id. at 795 (“Thus, the instant claim is a

variation of claims that were raised in prior proceedings, and as

such, is procedurally barred.”). Like Barwick’s, Zack’s claim that he

should be exempt from execution under the Eighth Amendment due

to his FAS diagnosis is, at its core, the same claim he’s repeatedly

raised since 2002. Thus, the postconviction court did not err in

concluding that this claim is procedurally barred.

Further, “[e]ven if this claim had not been raised in a prior

proceeding, it is still procedurally barred because it could have been

raised previously.” Id.; see also Branch v. State, 236 So. 3d 981,

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

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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). “Evolving standards of decency”

arguments in the Eighth Amendment context have long been

recognized. See Trop v. Dulles, 356 U.S. 86, 100–01 (1958) (“The

basic concept underlying the Eighth Amendment is nothing less

than the dignity of man. . . . The Amendment must draw its

meaning from the evolving standards of decency that mark the

progress of a maturing society.”); Atkins, 536 U.S. at 311–12

(quoting Trop, 356 U.S. at 100–01). And Zack’s own exhibits to his

fourth successive postconviction motion reflect that the medical

consensus for forensically evaluating FAS as an intellectual

disability was widely accepted as early as 2018 or 2019.

Thus, the postconviction court did not err in finding this claim

to be procedurally barred.

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(3) Merits

Finally, even if timely and not procedurally barred, Zack’s

claim is meritless as recognized in this Court’s recent active

warrant decisions in Dillbeck and Barwick. In both Dillbeck and—

in reliance on Dillbeck—Barwick, this Court rejected similar

“extension-of-Atkins” claims because this Court has “long held that

the categorical bar of Atkins that shields the intellectually disabled

from execution does not apply to individuals with other forms of

mental illness or brain damage.” Dillbeck, 357 So. 3d at 100 (citing

Gordon v. State, 350 So. 3d 25, 37 (Fla. 2022) (“For the purposes of

the Eighth Amendment, the existence of a traumatic brain injury

does not reduce an individual’s culpability to the extent they

become immune from capital punishment.”)); Barwick, 361 So. 3d

at 795 (rejecting as untimely, procedurally barred, and meritless a

claim that the protections of Atkins as well as Roper should be

extended); see also Carroll, 114 So. 3d at 887 (rejecting as untimely,

procedurally barred, and meritless a claim that the protections of

Atkins and Roper should be extended to a defendant who is less

culpable as a result of mental illness); Simmons, 105 So. 3d at 511

(rejecting a claim that persons with mental illness must be treated

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similarly to those with intellectual disability due to reduced

culpability); Lawrence v. State, 969 So. 2d 294, 300 n.9 (Fla. 2007)

(rejecting a claim that the Equal Protection Clause requires an

extension of Atkins to the mentally ill due to their reduced

culpability).

And as recognized by Barwick, this Court lacks the authority

to extend Atkins to individuals who “are not intellectually disabled

as provided in Atkins.” Barwick, 361 So. 3d at 795. This Court

must interpret Florida’s prohibition against cruel and unusual

punishment in conformity with decisions of the United States

Supreme Court under the conformity clause in article I, section 17

of the Florida Constitution. 11 Id. “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 . . . .” Id. at 794. “[A]nd this Court cannot interpret

11. The conformity clause in article I, section 17 states, “The
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.”

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Florida’s prohibition against cruel and unusual punishment to

provide protection that the Supreme Court has decided is not

afforded by the Eighth Amendment.” Id. Supreme Court precedent

“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.” Id. at 795.

Because Florida Courts lack the authority to extend Atkins to

Zack, who is not “intellectually disabled as provided in Atkins,” id.,

the postconviction court properly denied this claim as meritless.

B. Nonunanimous Penalty Phase Jury Recommendation

The postconviction court concluded that Zack’s second claim,

that his nonunanimous death recommendation by the jury during

his penalty phase violates the Eighth Amendment, is untimely,

procedurally barred, and meritless. Again, the postconviction court

committed no reversible error.

(1) Timeliness

As noted under Issue I, Zack cannot meet any of the timing

exceptions under rule 3.851(d)(2)(A)–(C) for raising the claim that

his nonunanimous penalty phase verdict violates the Eighth

Amendment. Zack has clearly known about the jury’s

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nonunanimous recommendation since his 1997 penalty phase, but

he raised no challenge to it in his direct appeal. He did raise this

issue in his initial postconviction motion, after Ring was decided in

2002. But in 2005, this Court affirmed the trial court’s denial of

Zack’s Ring claim, holding that Ring did not retroactively apply to

Zack’s sentence because it was already final when Ring was

decided. Zack II, 911 So. 2d at 1203. Zack raised this claim again

in a state habeas petition after Hurst was decided in 2016. But in

2017, noting that Hurst is an extension of Ring, this Court denied

his petition, holding that Zack is not covered by Hurst because

Hurst does not retroactively apply to cases that were final before

Ring. See Zack III, 228 So. 3d at 47–48. Nonetheless, Zack filed

another successive postconviction motion in 2018 raising multiple

Hurst-based claims premised on Hurst being retroactive. This

Court, again, affirmed the postconviction court’s denial of these

claims, holding that, as a matter of law, Zack was not entitled to

relief and had provided no compelling argument for reconsideration

of the Court’s prior rulings. Zack IV, 43 Fla. L. Weekly at S429.

Now in his fourth successive postconviction motion, Zack

presents nothing constituting an exception to the one-year

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timeframe. He cites neither to newly discovered evidence nor a case

setting forth a newly established and retroactive fundamental

constitutional right on this point. He instead raises an “evolving

standards of decency” argument and alleges that Florida—along

with Alabama—is a jurisdictional outlier in failing to require a

unanimous jury recommendation for death. But this argument is

nothing new and could have been raised in Zack’s direct appeal.

See Spaziano v. Florida, 468 U.S. 447, 463–65 (1984) (considering

whether Florida’s capital sentencing scheme offended the

“contemporary standards of fairness and decency” by looking at

sentencing schemes in other jurisdictions).

Zack attempts to establish that his “evolving standards of

decency” claim is timely in light of Hurst and the Florida

Legislature’s adoption of a less than unanimous jury

recommendation in 2023. See ch. 2023-23, § 1, Laws of Fla.

(amending section 921.141(2)(c) and 921.141(3)(a)2., Florida

Statutes (2022), which required a unanimous jury recommendation,

to permit trial courts to impose a death sentence if at least eight

jurors recommend a sentence of death) (effective April 20, 2023).

But neither applies to Zack. When Zack was sentenced in 1997, a

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unanimous jury recommendation for death was not required. See

§ 921.141(2), Fla. Stat. (1996) (requiring that the jury render an

advisory sentence to the trial court, including whether defendant

should be sentenced to life or death). And Hurst v. State, 202 So.

3d 40, 59 (Fla. 2016)—which was abrogated in part by State v.

Poole, 297 So. 3d 487, 504 (Fla. 2020)—was never held to

retroactively apply to Zack because Ring did not retroactively apply

to Zack. See Zack III, 228 So. 3d at 47–48.

Accordingly, there is no error in the postconviction court’s

conclusion that this claim is untimely.

(2) Procedural Bar

Further, there is no error in the postconviction court’s

conclusion that this claim is procedurally barred. As already noted,

Zack has repeatedly raised the claim that his nonunanimous jury

recommendation for death violates the Eighth Amendment. See

Zack II, 911 So. 2d at 1203 (rejecting Ring claim); Zack III, 228 So.

3d at 47–48 (rejecting Hurst claim); Zack IV, 43 Fla. L. Weekly at

S429–S430 (rejecting Hurst claim).

To avoid this bar, Zack’s current iteration of his claim rests on

an “evolving standards of decency” argument. But as noted

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already, “evolving standards of decency” arguments in the Eighth

Amendment context have long been recognized, see Trop, 356 U.S.

at 100–01; Spaziano, 468 U.S. at 465, and Zack could have raised

this claim on direct appeal. Further, though meritless, Zack’s

argument that juries were required to sentence defendants to death

at the time of the Eighth Amendment’s adoption in 1791 was

certainly an argument he could have discovered by the time of his

trial 200 years later and raised on direct appeal.

Thus, the postconviction court did not err in finding this claim

to be procedurally barred.

(3) Merits

Even if timely and not barred, to the extent Zack frames this

issue as one of “evolving standards of decency” under the Eighth

Amendment, this Court rejected precisely the same argument in

Dillbeck. In Dillbeck, this Court explained that a nonunanimous

jury challenge is meritless because “we are ‘bound by Supreme

Court precedents that construe the United States Constitution,’ and

the Supreme Court’s precedent establishes that the Eighth

Amendment does not require a unanimous jury recommendation of

death.” 357 So. 3d at 104 (quoting Poole, 297 So. 3d at 504). This

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Court further explained in Dillbeck that “[t]he Supreme Court

‘rejected the exact argument . . . that the Eighth Amendment

requires a unanimous jury recommendation of death’ in Spaziano,”

id. (quoting Poole, 297 So. 3d at 504), and that “Spaziano is still

good law.” Id. at 104.

In Poole, this Court overturned its earlier precedent in Hurst v.

State, which held “that the Eighth Amendment requires a

unanimous jury recommendation of death.” 297 So. 3d at 504. In

so doing, Poole clarified that Ring and Hurst were Sixth Amendment

cases that had “nothing to do with jury sentencing.” Id. (quoting

Ring, 536 U.S. at 612, (Scalia, J., concurring)). Further, Poole

found that Hurst v. State erred in holding that “the Eighth

Amendment requires a unanimous jury recommendation of death”

because “[t]he Supreme Court rejected that exact argument in

Spaziano.” Id. “The Constitution permits the trial judge, acting

alone, to impose a capital sentence.” Id. (quoting Harris v.

Alabama, 513 U.S. 504, 515 (1995)). “We are bound by Supreme

Court precedents that construe the United States Constitution.” Id.

Because the Supreme Court’s Eighth Amendment precedent to

which we are bound does not require a unanimous jury

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recommendation for death during the penalty phase, the

postconviction court properly found this claim to be meritless.

III. Conclusion

We affirm the summary denial of Zack’s fourth successive

motion for postconviction relief. We also deny his motions for stay

of execution and for oral argument. No motion for rehearing will be

entertained by this Court. The mandate shall issue immediately.

It is so ordered.

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

An Appeal from the Circuit Court in and for Escambia County,
Linda L. Nobles, Judge
Case No. 171996CF002517XXXAXX

Robert Friedman, Capital Collateral Regional Counsel, Dawn B.
Macready, Assistant Capital Collateral Regional Counsel, and Stacy
R. Biggart, Assistant Capital Collateral Regional Counsel, Northern
Region, Tallahassee, Florida,

for Appellant

Ashley Moody, Attorney General, Charmaine M. Millsaps, Senior
Assistant Attorney General, and Jason W. Rodriguez, Assistant
Attorney General, Tallahassee, Florida,

for Appellee

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