The State of Florida files this response to Defendant King’s

Application for Stay of Execution and Points and Authorities in

Support Thereof. The State respectfully submits that King’s

request for a stay of execution should be summarily denied, for the

reasons that follow.

No stay is warranted in this case. King seeks a stay pending

resolution of Ring v. Arizona, an Arizona death penalty case

accepted for certiorari review in the United States Supreme Court

on January 11, 2002. The question accepted in Ring -- the impact

of Apprendi v. New Jersey, 530 U.S. 466 (2000), on death penalty

sentencing procedures -- has already been presented in King’s

postconviction motion. Notwithstanding the United States Supreme

Court’s acceptance of certiorari, this issue cannot be the basis of

a stay in the instant case.

2

This Court has expressly rejected the suggestion that a stay

of execution should be granted simply because the United States

Supreme Court has accepted review of an issue which is also

presented by the defendant due to be executed. In Darden v. State,

521 So. 2d 1103 (Fla. 1988), the defendant sought a stay of

execution after the United States Supreme Court accepted an issue

for consideration regarding whether a Florida jury was misled as to

its sentencing role in violation of Caldwell v. Mississippi, 472

U.S. 320 (1985). Darden had previously presented a Caldwell claim

which this Court had rejected, but subsequent to that rejection the

United States Supreme Court granted certiorari on the same claim in

Adams v. Dugger, 485 U.S. 933 (1988). This Court held that no stay

was warranted on these facts.

In addition, King’s request for a stay must be denied because

the Apprendi claim accepted for review in Ring does not compel a

colorable basis for the granting of relief in this case. Ring

seeks review of Apprendi’s ramifications on Arizona’s statutory

death penalty scheme. Florida’s death penalty scheme is different

and any question as to the application of Apprendi in Florida will

not be resolved by Ring; in Arizona, the necessary factual findings

for the imposition of the death penalty are made solely by the

A.R.S. §13.703. Of course, the United States Supreme Court had the

opportunity to review this Court’s holding that Apprendi does not

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apply to Florida’s death penalty statute, and declined to address

the issue in a case where execution was imminent. See, Mills v.

State,786 So. 2d 532 (Fla.), cert. denied, 121 S. Ct. 1752 (2001).

Furthermore, the Ring case will review a decision by the

Arizona Supreme Court rendered in a direct appeal from Ring’s

convictions and sentence of death. See, State v. Ring, 25 P.3d

1139 (Ariz. 2001). Whatever the outcome of Ring, the question as

to the applicability of Apprendi on collateral review will clearly

be left unresolved. As the court below noted, in denying this

claim, a number of federal decisions have declined to apply

Apprendi retroactively, and King has cited no authority which

suggests that even if Ring’s death sentence is ultimately vacated

on Apprendi grounds, such a result may be applied retroactively or

on collateral review.

Finally, as noted in the State’s answer brief on this issue,

even if Apprendi requires a unanimous jury to find necessary facts

before a death sentence may be imposed, this claim does not benefit

King since his death recommendation was, in fact, unanimous. Thus,

no stay of execution is justified in this case. See, Delo v.

Stokes, 495 U.S. 320 (1990); Antone v. Dugger, 465 U.S. 200 (1984);

Buenoano v. State, 708 So. 2d 941, 951 (Fla. 1998), citing Bowersox

v. Williams, 517 U.S. 345 (1996) (recognizing that stay of

execution on second or third petition for postconviction relief is

warranted only where there are substantial grounds upon which

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relief might be granted). Since the issue presented in King’s

application for a stay does not offer a colorable basis for

granting relief, his request must be denied. See, Booker v.

Wainwright, 675 F.2d 1150 (11th Cir. 1982) (proper to grant a stay

only if the petitioner has presented colorable, non-frivolous

issues); Barefoot v. Estelle, 463 U.S. 880 (1983) (stay only

justified when the petitioner presents claims which are debatable

among jurists of reason). The files and records before this court

do not establish any entitlement to relief and, accordingly, the

request for stay of execution should be denied.

5

King is not entitled to a stay of execution, and therefore his

application for stay must be denied.

Respectfully submitted,

_______________________________

Assistant Attorney General

Florida Bar No. 0503843

_______________________________

Assistant Attorney General

Florida Bar No. 0014087

2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607-2366

(813) 801-0600

(813) 356-1292 (Fax)

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has been furnished by facsimile/U.S. Mail to Richard Kiley and

April Haughey, Assistant CCRC-M, 3801 Corporex Park Drive, Suite

210, Tampa, Florida 33619, this ______ day of January, 2002.

_______________________________

COUNSEL FOR THE STATE

Copies furnished to:

Honorable Susan F. Schaeffer

Circuit Court Judge

545 First Avenue North, Room 417

St. Petersburg, Florida 33701