Supreme Court of Florida ____________
No. SC2024-0648 ____________
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.
-2- 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
-3- 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
-4- 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.
-5- 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
-6- 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.”
-7- 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.
-8- 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.
-9- 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).
- 10 - 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
- 11 - 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.
- 12 - 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.
- 13 - 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,
- 14 - 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
- 15 - 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
- 16 - 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.
- 17 - 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
- 18 -