IN THE SUPREME COURT OF FLORIDA
NO. SC 01-775
GREGORY MILLS,
Appellant,
EMERGENCY MOTION: CAPITAL CASE,
v. DEATH WARRANT SIGNED; EXECUTION
SCHEDULED FOR MAY 2, 2001
STATE OF FLORIDA, AT 6:00 P.M.
Appellee.
_________________________/
RESPONSE TO STATE'S MOTION TO STRIKE ET. AL.
COMES NOW THE APPELLANT, GREGORY MILLS,
by andthrough his undersigned counsel, and herein files this
response to the State's Motion to Strike Identified
Portions of Initial Brief.
1. The State has moved to strike Argument II of Mr.
Mills brief because it believes that because the Court's
denial of Mr. Mills' motion to relinquish/clarification
was denied, the inclusion of this argument was
"improper." Mr. Mills submits that the State is
incorrect.
2. In his motion filed yesterday, Mr. Mills
requested a relinquishment so that the newly-discovered
claims could be presented in a Rule 3.850 motion. The
State vehemently opposed a relinquishment, arguing that
there was no basis for relief on either of the claims.
Mr. Mills also sought clarification in the event that
the Court declined to relinquish, requesting
specifically : "should the Court decline to relinquish,
then Mr. Mills seeks clarification on whether to include
this information in his brief or how to proceed at this
point." The Court simply denied the motion without any
explanation or clarification on how Mr. Mills was to
proceed. Thus, Mr. Mills included the argument in his
brief. This Court has in the past entertained such new
arguments under exigencies of a death warrant. See,
e.g. Porter v. State, 653 So. 2d 374, 377 (Fla. 1995)
("We begin by addressing an issue raised in this appeal
which was not presented to the judge in the motion");
Spaziano v. State, 660 So. 2d 1363, 1365 (Fla. 1995)
("The motions for rehearing filed in this cause are
clearly not authorized. However, consistent with our
constitutional responsibility to refrain from dismissing
a cause solely because an improper remedy has been
sought, we have considered the contents of these motions
and the recently filed supplemental affidavit to
determine whether they have any basis for relief under
our jurisdiction. Under the unique circumstances of
this cause, we conclude that these two out-of-time
motions for rehearing, together with the supplemental
affidavit of Anthony DiLisio, should be treated as a
successive 3.850-3.851 motion").
3. As noted, the State yesterday vehemently
opposed relinquishment because it took the position that
these new claims had no merit. Now, the State takes the
position that "Florida law is well-settled that a claim
not raised in a rule 3.850 motion cannot be raised for
the first time on appeal from the denial of Rule 3.850
relief" (Motion to Strike at 2). However, the law is
also clear that the lower court presently has no
jurisdiction to entertain a Rule 3.850 motion. See
State v. Meneses, 392 So. 2d 905, 907 (Fla. 1981)
("while appeal proceedings or certiorari proceedings are
pending in an appellate court, the trial court is
without jurisdiction to entertain a motion to vacate").
This is why Mr. Mills sought relinquishment. However,
the State was opposed to it. Now the State chides Mr.
Mills for not filing a Rule 3.850 motion. The State's
gamesmanship is remarkable. If the State opposes
relinquishment, then under these circumstances, "it
would be [] appropriate to simply reverse for a
resentencing before the trial judge." Thompson v.
State, 731 So. 2d 1235, 1236 (Fla. 1998).
4. The State also makes the argument that Mr.
Mills' argument "with respect to the standard to be
applied in evaluating Claim I, which is set out on pages
23-27 of his Initial Brief, was not raised in the
Circuit Court" (Motion to Strike at 2). This is,
frankly, ludicrous. The standard espoused by Mr. Mills'
counsel below is the standard he is arguing in his
brief. Simply because his appellate brief cited
additional cases in support of his argument once Judge
Eaton had actually ruled does not translate into some
"procedural bar." The State's brief filed this morning
cites to cases it did not cite below to support Judge
Eaton's order; Mr. Mills would not imagine arguing that
this was improper. Obviously the State realizes that
Mr. Mills is correct under the law and is now
desperately seeking to invoke an imaginary "procedural
bar" because, on the merits, it has no argument.
5. The State asks for additional time to file
another brief on Monday to respond to Mr. Mills
additional arguments. In fact, in his motion for
clarification and relinquishment, Mr. Mills indicated
that should the Court deny relinquishment, he requested
an extension until today at 10 AM in part because of
"this new and important information just came to light."
The Court's order of April 19 gave the parties an
extension of time. The State had clear notice of the
issues that Mr. Mills was alleging to be new. The State
routinely files anticipatory responses to matters it
believes might be raised by a defendant; in fact, it did
so in Mr. Mills' case below. Moreover, the State's
position in opposing relinquishment is clear: it
believes Mr. Mills' claims have no merit. Thus the
State's request for additional briefing should be
denied.
WHEREFORE, the State's motion should be denied in
its entirety.
I HEREBY CERTIFY that a true copy of the foregoing
has been furnished by fax transmission to all counsel of
record on April 20, 2001.
TODD G. SCHER
Florida Bar No. 0899641
Litigation Director
CCRC South
101 NE 3d Avenue, Suite 400
Ft. Lauderdale, Florida 33301
(954) 713-1284
Attorney for Defendant
Copies furnished to:
Kenneth Nunnelley, Asst. Attorney General
Office of the Attorney General
444 Seabreeze Boulevard, 5th Floor
Daytona Beach, FL 32118