Opinion
Case No. SC05-963.
September 20, 2007.
Lower Tribunal No(s). 96-2517-CFA.
Michael Duane Zack, III, a prisoner under sentence of death, appeals the circuit court's denial of his successive motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)( 1), Fla. Const. Zack requests that we allow him an opportunity to file a successive motion for postconviction relief based on a claim of mental retardation, pursuant to Florida Rule of Criminal Procedure 3.203 and Atkins v. Virginia, 536 U.S. 304 (2002).
Zack asserts that the circuit court erred by dismissing his successive motion for postconviction relief with prejudice instead of holding it in abeyance until the proceedings before us on his initial motion for postconviction relief were final. Zack also asserts that he has produced sufficient evidence for a claim of mental retardation.
In its order dismissing Zack's successive motion for postconviction relief, which raised a mental retardation claim, the circuit court properly recognized that it lacked jurisdiction to entertain the motion because Zack's initial motion for postconviction relief raised a similar claim of mental retardation under Atkins, and the appeal on the denial of this motion was pending in this Court. However, the circuit court erred by considering the merits of the motion and dismissing the motion with prejudice because it lacked the jurisdiction to do so. See Parks v. State, 816 So. 2d 219 (Fla. 1st DCA 2005).
However, we find that although the circuit court erred in dismissing Zack's successive motion for postconviction relief with prejudice, this error was harmless because Zack had an opportunity to present anAtkins claim in his initial postconviction motion and it was found to be without merit. The circuit court's determination was affirmed by this Court. See Zack v. State, 911 So. 2d 1190 (Fla. 2005). Zack has not provided any new evidence of mental retardation and previous evidence demonstrates that his IQ was well above the statutory required figure of 70 or below. See Cherry v. State, 781 So. 2d 1040 (Fla. 2000) (accepting expert testimony that in order to be found mentally retarded, an individual must score 70 or below on an IQ test). Accordingly, we affirm the circuit court's denial of postconviction relief.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.