KHADAFY KAREEM MULLENS

v.

STATE OF FLORIDA

Supreme Court of Florida

THURSDAY, SEPTEMBER 10, 2026

SC2026-0545

Lower Tribunal No(s).: 522008CF018029000APC

Khadafy Kareem Mullens, Appellant(s)

v.

State of Florida, Appellee(s)

The petition for belated appeal is hereby granted and a new case styled Khadafy Kareem Mullens v. State of Florida, Case No. SC2026-1350, has been set up as a notice of appeal which is seeking review of the order of the circuit court dated February 4, 2026. Case No. SC2026-0545 is closed.

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

TANENBAUM, J., specially concurs with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION

AND, IF FILED, DETERMINED.

TANENBAUM, J., specially concurring.

This court has no jurisdiction to consider the defendant's latest appeal if the order in question truly is one denying a motion filed under Florida Rule of Criminal Procedure 3.203(c) (“Motion for

Page Two

Determination of Intellectual Disability as a Bar to Execution”). Such a motion is not authorized except when made in the penalty phase after the defendant has been convicted of a crime punishable by death. See § 921.137(3)-(5), Fla. Stat.; Fla. R. Crim. P. 3.203(a), (d), (g). The defendant has already been sentenced to death. That sentence becoming absolutely final a decade ago, the order denying the unauthorized rule 3.203 motion is not cognizable or reviewable here. The order is neither a “final judgment[] of [a] trial court[] imposing the death penalty” nor one addressing a motion attacking that judgment. Art. V, § 3(b)(1), Fla. Const.; see also State v. Fourth Dist. Ct. of Appeal, 697 So. 2d 70, 71 (Fla. 1997).

I nevertheless concur in allowing his belated appeal, but only insofar as we treat it as one from an order denying his renewed claim attacking his death sentence under Florida Rule of Criminal Procedure 3.851. The defendant filed a timely rule 3.851 motion in December 2017 and amended it in May 2018. Claim Four in that motion asserted that sentencing the defendant to death constituted cruel and unusual punishment because he is intellectually disabled. Cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding

Page Three

that executing intellectually disabled defendants violates the Eighth Amendment); see Art. I, § 17, Fla. Const. (requiring any prohibition against “cruel and unusual punishment” to “be construed in conformity with decisions of the United States Supreme Court" interpreting the Eighth Amendment's prohibition).

There was an evidentiary hearing on that claim, and the postconviction court found that the defendant had “presented a persuasive case of intellectual disability.” The court, though, already decided to vacate the death sentence and hold a new penalty-phase trial based on another of the defendant's claims— ineffective assistance of counsel. So the court, anticipating a new trial, "defer[red] a dispositive ruling as to [the defendant's] potential intellectual disability as a bar to the death penalty until he files the appropriate motion under Florida Rule of Criminal Procedure 3.203 during the new penalty phase” (emphasis supplied). Handling the intellectual disability claim under that rule made sense so long as the previously imposed death sentence had been vacated with a new trial to follow.

On the State's appeal, however, this court reversed that

Page Four

vacatur, effectively reinstating the death sentence as absolutely final. See State v. Mullens, 352 So. 3d 1229, 1246 (Fla. 2022). The defendant had cross-appealed, in part arguing that the postconviction court erred in “denying” his intellectual disability claim (though the court had not denied his claim on the merits). In summarily affirming that “denial,” we noted the post-conviction court's reference to taking the claim up in the anticipated new penalty trial. We then confused matters a bit by overlooking what we had just done—reversing the vacatur, such that there would no longer be a new trial—and stating, in dicta, that “under rule 3.203, [the defendant] will be required to establish good cause to excuse his failure to meet the rule's timing requirement.” Id.

As already noted, there is no statutory right to the proceeding contemplated by rule 3.203 once a death sentence has been imposed. On remand, the intellectual disability evidentiary hearing had to have been under rule 3.851, which (like rule 3.850) is the procedural device we have established to cover collateral attacks on death sentences. Cf. Roy v. Wainwright, 151 So. 2d 825, 828 (Fla. 1963) (explaining that the original predecessor rule “is intended to

Page Five

provide a complete and efficacious post-conviction remedy to correct convictions on any grounds which subject them to collateral attack"); State v. Bolyea, 520 So. 2d 562, 563 (Fla. 1988) (noting that the predecessor to rule 3.851 (rule 3.850) “is a procedural vehicle for the collateral remedy otherwise available by writ of habeas corpus”). Claim Four—that the defendant cannot be legally sentenced to death because of his intellectual disability—became ripe again for consideration once we reversed the vacatur. The order denying that claim on the merits is a final one that is appealable here.

The defendant having shown sufficient cause to review that denial in the context of an otherwise untimely appeal, I agree that we should let the appeal proceed, but within the parameters described above.

A True Copy Test:

SC2020-0845 9/10/2026

John A. Tomasino Clerk, Supreme Court

SC2026-0545 9/10/2026

Page Six

SO

Served:

CAPAPPEALS TLH ATTORNEY GENERAL

JOSHUA PAUL CHAYKIN

PINELLAS CLERK

HON. PHILIP JAMES FEDERICO

TIMOTHY ARTHUR FREELAND

SARA MACKS

GLENN LAIR MARTIN, JR.

STENOGRAPHIC COURT REPORTERS