i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . .i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . ii

Preliminary Statement. . . . . . . . . . . . . . . . . . . . . .1

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . .1

Request for oral argument. . . . . . . . . . . . . . . . . . . .1

Issue presented . . . . . . . . . . . . . . . . . . . . . . . . 2

Mr. King’s execution should be stayed pending the outcome of

Ring v. Arizona, ___ US ____, 2002 cert. pet. granted, in

which the constitutional significance of Apprendi is

challenged as it applies to the Florida death penalty statute.

. . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . 2

Conclusion and Prayer for Relief. . . . . . . . . . . . . . . . 5

Index to Attachments. . . . . . . . . . . . . . . . . . . . . . 9

ii

Apprendi v. New Jersey, 530 U.S. 466 (2000). . . . . . . . . . .2

Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 77 L.Ed.2d

1090 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . .3

(2001). . . . . . . . . . . . . . . . . . . . . . . . . . . .3

State v. Hoskins, 199 Ariz. 127, 14 P.3d 997 (Ariz.,Dec 29, 2000).

(U.S.Ariz. Oct 09, 2001). . . . . . . . . . . . . . . . . . . . 2

Ring v. Arizona, ___ US ____, 2002 cert. pet. granted. . . . . .2

Walton v. Arizona, 479 U.S. 639 (1990). . . . . . . . . . . . . 2

1

The appellant relies on the preliminary statement as presented

in its Initial Brief of Appellant. This Court has jurisdiction to

Stay the Appellant’s execution pursuant to Article V, sections

3(b)(7) and 3(b)(9) of the Florida Constitution.

This is an original action pursuant to Fla. R. App. P.

9.100(a). See also Art. I, sec. 13, Fla. Const. The Court’s

jurisdiction is invoked pursuant to Art. V, sec. 3(b)(9), Fla.

Const., and Fla. R. App. P. 9.030(a)(1).

The petitioner hereby requests oral argument on the issues

raised in this supplement brief.

2

order staying Petitioner’s execution, which is presently scheduled

for January 24, 2002, pending the final disposition of Ring v.

Arizona, ___ US ____, 2002 cert. pet. granted. In support thereof,

Mr. King, through counsel, respectfully submits as follows:

1. A death warrant has been signed against Mr. King, and his

execution is currently scheduled to take place at 6:00 p.m. on

January 24, 2002.

2. On January 11, 2002, the United States Supreme Court

granted Timothy Stuart Ring’s petition for Writ of Certiorari.

Timothy Ring’s petition, attached hereto, raises as its sole issue

the question of whether Walton v. Arizona, 479 U.S. 639 (1990),

should be overruled in light of the United States Supreme Court’s

subsequent holding in Apprendi v. New Jersey, 530 U.S. 466 (2000),

that "for a legislature to remove from the jury the assessment of

facts that increase the prescribed range of penalties to which a

criminal defendant is exposed" violates the defendant’s Sixth

Amendment right to a jury trial. Id. at 490.

3. Mr. King filed an Application for Stay of Execution in the

Circuit Court on January 14, 2002, arguing the recent granting of

certiorari on the Apprendi issue entitles Mr. King to a stay of

3

execution. Argument was heard in front of that court on January

14, 2002. The Application for Stay of Execution was denied by

Circuit Judge Susan Schaeffer on January 14, 2002. Oral argument

on Mr. King’s appeal from the denial of his successive motion for

postconviction relief was scheduled on January 15, 2002. At oral

argument, counsel for Mr. King informed the Court of the recent

order of the Circuit Court denying an Application for Stay of

Execution and informed the Court that a supplemental brief would be

filed by Mr. King addressing that denial on January 15, 2002. This

supplemental brief follows.

The Supreme Court’s granting of Ring’s Petition signifies the

Court’s desire to address the questions which have circulated since

it’s opinion in Apprendi despite its previous denial of Petitions

for Writs of Certiorari also brought by Arizona inmates under

capital sentences. State v. Hoskins, 199 Ariz. 127, 14 P.3d 997

386, 70 USLW 3269 (U.S.Ariz. Oct 09, 2001). While the Supreme

Court has also previously denied a petition for writ of certiorari

(2001), the Court’s reversal on Ring demonstrates a renewed

interest in the issue.

The Florida capital sentencing scheme is in significant part

subject to the same constitutional inadequacies as Arizona’s

4

capital sentencing scheme. Indeed, the Ring petition for writ of

certiorari expressly identifies Florida as one of nine states whose

capital sentencing schemes have questionable constitutional

underpinnings pursuant to the language of Apprendi.

The petitioner, Amos Lee King, has previously raised in his

state motion for post-conviction relief and habeas petitions and

therefore preserved the issues raised by Apprendi and to be

resolved by the Supreme Court’s future ruling in Ring.

A stay of execution is appropriate where there is: "a

reasonable probability that four Members of the (Supreme) Court

would consider the underlying issue sufficiently meritorious for

the grant of certiorari ... and there must be a likelihood that

irreparable harm will result if that decision is not stayed."

Barefoot v. Estelle, 463 U.S. 880, 895, 103 S.Ct. 3383, 77 L.Ed.2d

1090 (1983). The United States Supreme Court’s grant of Mr.

Ring’s Petition for Writ of Certiorari on the Apprendi issue

establishes the merit of the Petitioner’s identical claim. As such,

the first prong of Barefoot is clearly met. That there exists the

likelihood that irreparable harm should occur if the decision is

not stayed is also clear. Amos King is scheduled to be executed in

a matter of days. Should, as Mr. King has alleged, the Florida

capital sentencing scheme be found unconstitutional pursuant to

Ring v. Arizona, Mr. King’s execution would have been grounded on

an unconstitutional statute. The State argued in its Response to

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Application for Stay of Execution that Darden v. Dugger, 521 So.2d

1103 (Fla. 1988), supports their position that no stay should be

granted. Such an interpretation of Darden overlooks specific

language in that opinion which states, "If this were the first time

warranted." Id. at 1105. Mr. King has not previously made this

argument to this Court, thus a stay is warranted here.

Inasmuch as Petitioner is under sentence of death, there is

insufficient time for this Court to delay its decision until Ring

v. Arizona is decided and the question concerning the

constitutionality of Florida’s capital sentencing scheme has been

finally resolved. It is therefore appropriate and essential that

this court enter a stay of Mr. King’s execution.

The Petitioner is incarcerated in Florida State Prison at

Starke. A stay of execution will in no way effect the State’s

interest herein.

Petitioner respectfully requests that this Court grant a stay

of Petitioner’s execution UNTIL AFTER THE United States Supreme

Court enters a decision in the Ring case, so that final resolution

of the constitutionality of Florida’s capital sentencing scheme be

determined.

6

I HEREBY CERTIFY that a true copy of the foregoing has been

has been furnished by United States Mail, first class postage

prepaid, hand-delivery and/or by electronic mail to all counsel

of record on this _____ day of January, 2002.

Richard E. Kiley

Florida Bar No.0558893

Assistant CCC

___________________________________

April E. Haughey

Florida Bar No. 0119180

Assistant CCC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Attorney For Appellant

Copies furnished to:

Honorable Susan F. Schaeffer

Circuit Court Judge

St. Petersburg, FL 33701

Carol M. Dittmar

Assistant Attorney General

Office of the Attorney General

2002 N. Lois Avenue

Tampa, FL 33607

7

C. Marie King

Assistant State Attorney

Office of the State Attorney

P.O. Box 5028

Clearwater, FL 33758-5028

Commission on Capital Cases

ATTN: Mary Jean

402 S. Monroe Street

Tallahassee, FL 32399-1300

Susan Schwartz

Assistant General Counsel

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, FL 32399-2500

The Honorable Thomas D. Hall

Clerk, Supreme Court of Florida

ATTN: Tanya Carroll

Supreme Court Building

500 S. Duval Street

Tallahassee, FL 32399-1927

United States Court of Appeals for the

Eleventh Circuit

ATTN: Joyce Pope

56 Forsyth Street N.W.

Atlanta, GA 30303

United States Supreme Court

ATTN: Cynthia Rapp

Washington, D.C. 20543

8

I hereby certify that a true copy of the foregoing Reply Brief

of Appellant, was generated in Courier New, 12 point font, pursuant

to Fla. R. App. P. 9.210.

Richard E. Kiley

Florida Bar No.0558893

Assistant CCC

___________________________________

April E. Haughey

Florida Bar No. 0119180

Assistant CCC

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

813-740-3544

Attorney For Appellant

9

INDEX TO ATTACHMENTS

Petition for a Writ of Certiorari in the case of Ring v. Arizona,

U.S. (2001). . . . . . . . . . . . . . . . . . . . . . 1

Application for Stay of Execution and Points and Authorities in

Support Thereof filed by Mr. King on January 14, 2002. . . . . .2

State’s Response to Application for Stay of Execution and Points

and Authorities in Support Thereof filed on January 14, 2002. . .3

Order Denying Defendant’s Application for Stay of Execution filed

by Circuit Court Judge Susan Schaeffer on January 14, 2002 . . .4