IN THE SUPREME COURT OF FLORIDA

CASE NOS. SC00-295, SC00-297

TERRY MELVIN SIMS,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

TERRY MELVIN SIMS,

Petitioner,

vs.

MICHAEL MOORE,

Respondent.

EMERGENCY APPLICATION FOR TEMPORARY STAY OF EXECUTION PENDING FILING AND DISPOSITION OF CERTIORARI PETITION AND OTHER RELIEF

Terry Melvin Sims, by and through his undersigned counsel, applies to this Court

for a temporary, 48 hour stay of his execution currently scheduled for February 23, 2000

at 7:00 a.m., until Friday, February 25, 2000. Mr. Sims states the following grounds for

granting this Application:

On January 26, 2000, the Governor reset Mr. Sims’ s execution for the week

2 beginning Tuesday, February 22, 2000, at 7 a.m., and ending Tuesday February 29, 2000.

(See letter of Governor Bush, attached). The warden has set Mr. Sims’ s execution for

Wednesday, February 23, 2000, at 7 a.m. Appellant/Petitioner intends to file a petition for

a Writ of Certiorari from this Court’ s decision of February 16, 2000, and to seek relief in

other courts. Monday is President’ s Day, and is thus both a federal and state holiday,

meaning both the state and federal courts will be closed. See Rule 9.420(e)(3), Florida

Rules of Appellate Procedure; Rule 26(a)(4), Federal Rules of Appellate Procedure.;

Supreme Court Rule 30 (1); 5 U.S.C. § 6103. Mr. Sims will thus have only one working

day to file his certiorari petition and for relief in other courts, and those courts will have

only hours within which to consider it before the presently scheduled execution.

Mr. Sims intends to proceed with filings in other courts as soon as he can write and

transmit those claims to courts, all of which are in other cities. He has raised claims

relating to innocence, see Herrera v. Collins, 113 S.Ct. 853 (1992), and Brady v. Maryland,

373 U.S. 83 (1963), which this Court has reviewed on the merits. He will also seek review

of this Court’ s determination of the issues raised regarding the method of execution. He

has a right under federal law to review of his claims. However, he has been left with

insufficient time to do so.

A stay of execution is appropriate upon the showing made herein. See Buenoano

v. State, 708 So.2d 941, 951 (Fla. 1998), citing Barefoot v. Estelle, 463 U.S. 892 (1983).

There is no question that Mr. Sims has made a substantial showing of the denial of a

constitutional right, or that reasonable jurists differ as to his entitlement for relief. See

Barefoot, 463 U.S. at 893 n.4 (stay mandated where petitioner "demonstrate[s] that the

3 issues are debatable among jurists of reason; that a court could resolve the issues (in a

different manner); or that the questions are adequate to deserve encouragement to

proceed further"). A stay is appropriate where reasonable jurists differ over such a

showing. Barefoot, supra.

Mr. Sims will certainly suffer irreparable harm is he is executed for a crime he did

not commit pending final disposition of his claims.

The State will suffer no prejudice from this stay. Mr. Sims will remain in the custody

of the Florida Department of Corrections. The Governor’ s warrant will remain in effect.

This Court often has entered temporary stays in similar circumstances.

For the foregoing reasons, Terry Melvin Sims, through counsel, respectfully

requests that this Court enter an order temporarily staying his execution until Friday,

February 25, 2000.

Respectfully submitted,

RICHARD JORANDBY Public Defender

______________________________ STEVEN H. MALONE Fla. Bar No. 305545 Assistant Public Defender MARK E. OLIVE Fla. Bar No. 057833 Special Assistant Public Defender TIMOTHY P. SCHARDL Fla. Bar No. 0073016

4 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Application for Stay of Execution is being sent via facsimile transmission, copy to follow by United States mail, first class postage prepaid, Kenneth S. Nunnelley, Assistant Attorney General, Office of the Attorney General, 444 Seabreeze Blvd., Daytona Beach, Florida 32118-3958, this 18 th day of February, 2000.

RICHARD JORANDBY Public Defender 15th Judicial Circuit of Capital Crimes Division 421 Third Street, Sixth Floor West Palm Beach, Florida 33401 (407) 355-7707

______________________________ STEVEN H. MALONE Fla. Bar No. 305545 Assistant Public Defender *MARK E. OLIVE Fla. Bar No. 057833 Special Assistant Public Defender TIMOTHY P. SCHARDL Fla. Bar No. 0073016 Special Assistant Public Defender LAW OFFICES OF MARK E. OLIVE, P.A. 320 West Jefferson Street Tallahassee, FL 32301 (850) 224-0004 (850) 224-3331 (facsimile) Attorneys for Terry Melvin Sims

* Counsel of Record