GREGORY MILLS, Defendant in the above-captioned action, respectfully moves this Court for an Order, pursuant to Fla. R. Crim. P. 3.850, vacating and setting aside the judgments of convictions and sentences, including his sentence of death. In support thereof, Mr. Mills, through counsel, respectfully submits as follows:

I. Between the time of this Court's denial of Mr. Mills motion and the filing of his brief in the Florida Supreme Court, Mr. Mills discovered new evidence and requested that the Florida Supreme Court relinquish jurisdiction so that he could file a new Rule 3.850 motion, as this Court had no jurisdiction due to the appeal (Attachment A). 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"). The State, however, opposed relinquishment (Attachment B). On April 19, 2001, the Florida Supreme Court, over the dissent of two justices, denied relinquishment (Attachment C). Thus, Mr. Mills raised those issues in his brief, and the issues were the subject of extensive discussion at the oral argument before the Florida Supreme Court on April 24, 2001. During that oral argument, the State conceded that the Court could dismiss the appeal without prejudice to allow this Court to address the issues which had not been raised below. The Court's opinion is silent on these new issues. Thus, Mr. Mills' files the instant Rule 3.850 motion.

2. Mr. Mills has substantial constitutional claims challenging the validity of his convictions and sentences, including his sentence of death. These claims are properly presented in a Rule 3.850 motion. As will be demonstrated below, Mr. Mills is entitled to the relief he seeks.

3. Mr. Mills requests an evidentiary hearing. An evidentiary hearing is more than warranted in this case based on the claims presented in this action. This Court should conduct an evidentiary hearing at a time when the Court, Mr. Mills' counsel, and the State's representatives can delve into the facts of this case with thought, with care, and with reason -- not under the exigencies of a death warrant.

4. Mr. Mills requests leave to (1) supplement and/or amend this motion with any newly discovered evidence or chapter 119 public records which become available after the filing of this motion.

5. Mr. Mills requests the opportunity to be heard once his fully pled Rule 3.850 motion is filed. Huff v. State, 622 So. 2d 982 (Fla. 1993).

6. This is Mr. Mills' third motion for relief in this case under Rule 3.850.

7. Mr. Mills was indicted in the Eighteenth Judicial Circuit, Seminole County, Florida, for first-degree felony murder and related offenses, and pled not guilty.

8. Trial commenced before Circuit Judge J. William Woodson on Thursday, August 16, 1979, and the jury returned guilty verdicts the next day. After a penalty phase, the jury recommended that Mr. Mills be sentenced to life imprisonment without the possibility of parole for at least twenty-five (25) years. On April 18, 1980, the trial court overrode the jury's life recommendation and sentenced Mr. Mills to death, finding six (6) aggravating circumstances: (1) under sentence of imprisonment; (2) previous conviction of violent felony; (3) great risk of death to many persons; (4) felony murder; (5) pecuniary gain; and (6) heinous, atrocious, or cruel. Addressing only statutory mitigating factors, the court found that no mitigating circumstances had been established.

9. The conviction for first-degree felony murder and sentence of death were affirmed by the Florida Supreme Court in a 5-2 decision. Mills v. State, 476 So. 2d 172 (Fla. 1985), cert. denied, 475 U.S. 1031 (1986). The Court, however, vacated the aggravated battery conviction because "we do not believe it proper to convict a person for aggravated battery and simultaneously for homicide as a result of one shotgun blast." Id. at 177. The Court also struck three (3) of the aggravating circumstances found by the trial court. The "great risk of death to many persons" aggravating factor was struck because "[t]he finding that Mills knowingly created a great risk of death to many persons was, as the state conceded, erroneous." Id. at 178. The pecuniary gain factor was struck due to improper doubling with the felony murder aggravating factor. Id. Lastly, the Florida Supreme Court struck the "heinous, atrocious, or cruel" aggravator as inapplicable to the facts of the case. Id.

10. Following the signing of a death warrant, a postconviction motion pursuant to Fla. R. Crim P. 3.850 was filed and summarily denied. On appeal, the Florida Supreme Court remanded the case for an evidentiary hearing "in regards to counsel's failure to develop and present evidence that would tend to establish statutory or nonstatutory mental health mitigating circumstances." Mills v. Dugger, 559 So. 2d 578, 579 (Fla. 1990). The Court also denied a request for state habeas corpus relief. Id.

11. Following the evidentiary hearing and the lower court's order denying relief, the Florida Supreme Court, in a sharply divided vote, affirmed. Mills v. State, 603 So. 2d 482 (Fla. 1992).

12. Subsequent to the decisions in Stringer v. Black, 503 U.S. 222 (1992), and Sochor v. Florida, 504 U.S. 527 (1992), Mr. Mills sought habeas corpus relief in the Florida Supreme Court challenging both the adequacy of that Court's harmless error analysis in his case as well as the application of the "during the course of a felony" aggravating circumstance. The Florida Supreme Court held that Sochor was not new law under Witt v. State, 387 So. 2d 922 (Fla. 1980), and therefore the claim, raised for the second time, was procedurally barred. Mills v. Singletary, 606 So. 2d 622, 623 (Fla. 1992). The Court ruled in the alternative that "[w]e . . . applied, and applied correctly, a harmless error analysis in Mills' direct appeal." Id. at 623. Regarding the claim that the felony-murder aggravating factor is an unconstitutional automatic aggravating circumstance, the Court held: "We considered and rejected the substance of this claim on direct appeal." Id.

13. Mr. Mills sought habeas corpus relief in the United States District Court for the Middle District of Florida. During the pendency of the petition, the district court entered an order requesting supplemental briefing on the jury override issues presented in the petition. Following the submission of briefs, the district court entered judgment against Mr. Mills, and the Eleventh Circuit Court of Appeals affirmed. Mills v. Singletary, 161 F. 3d 1273 (11th Cir. 1998), cert. denied, 120 S.Ct. 804 (2000).

14. Following the decisions by the United States Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), and Fiore v. White, 121 S.Ct. 712 (2001), as well as the decision by the Florida Supreme Court in Keen v. State, 775 So. 2d 263 (Fla. 2000), Mr. Mills sought habeas corpus relief in the Florida Supreme Court. While the petition was pending, Mr. Mills' death warrant was signed. Oral argument was conducted on April 2, 2001, and a sharply-divided decision denying relief was issued in the late afternoon of April 12, 2001. Mills v. Moore, No. SC01-338 (Fla. April 12, 2001).

15. On April 16, 2001, Mr. Mills filed a second Rule 3.850 motion. A Huff hearing took place that same day, and an evidentiary hearing was ordered. The evidentiary hearing occurred on April 17, 2001, and an order denying relief was issued on April 18, 2001. The Florida Supreme Court issued an opinion affirming on April 25, 2001, at approximately 5:00 PM. Mills v. State, No. SC01-775 (Fla. April 25, 2001).

16. This motion is being filed pursuant to the circumstances set forth in Paragraph 1, supra.

GROUNDS FOR POST-CONVICTION RELIEF

By his motion for Fla. R. Crim. P. 3.850 relief, Mr. Mills asserts that his convictions and sentences, including his sentence of death, were obtained in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Florida Constitution for each of the reasons set forth below.

This claim is evidenced by the following facts:

1. All other allegations and factual matters contained elsewhere in this petition are fully incorporated herein by specific reference.

2. On April 18, 2001, a witness who counsel's investigator interviewed, provided a sworn affidavit that Mr. Mills' codefendant, Vincent Ashley, had confessed to him that he, not Mr. Mills, was the shooter:

(Attachment D).

3. This information requires evidentiary development, particularly in light of Ashley's statements to the court at the April 17 proceeding. During one of the undersigned's discussions with Ashley, Ashley disclosed for the first time the name of John Anderson, who was someone in the jail with Ashley at the time preceding Mr. Mills' trial. Counsel immediately undertook efforts to locate Anderson, and he was interviewed on two occasions, first on April 12, when he indicated he needed to think back. The Polk Correctional Insitution contacted the undersigned's office on April 17, with a message that Mr. Anderson wanted to speak with Mr. Mills' investigator. Mr. Anderson was then re-interviewed on April 18, 2001, when he disclosed the information contained in the affidavit executed on that date. Thus, the undersigned's investigator nor the undersigned did not know about the substance of what Mr. Anderson would say until April 18, the day of the affidavit. Nor did any of Mr. Mills' previous counsel know that Anderson possessed information about Ashley having been the triggerman.

4. Alone and cumulatively, Ashley's confession clearly establishes a reasonable probability of an acquittal. Jones v. State, 591 So. 2d 911 (Fla. 1992). Alone and cumulatively, it certainly establishes a reasonable basis for the jury's recommendation of life, which could not have been overridden either at the trial level or on appeal. Scott v. Dugger, 604 So. 2d 465, 469 (Fla. 1992) ("Based upon this record, this Court probably would have found Scott's death sentence inappropriate had Robinson's life sentence been factored into our review on direct appeal"). Ashley is the co-defendant, who made a confession to a third party. As such, it clearly qualifies as a statement against interest.  90.804 (2), Fla. Stat. (1999). Here, Ashley's confession is clearly against interest; moreover, it is corroborated by his performance at the evidentiary hearing of April 17, 2001. Ashley's confession would also be admissible under Chambers v. Mississippi, 410 U.S. 284 (1973). Finally, Ashley's confession would be admissible at Mr. Mills' penalty phase. Garcia v. State, 622 So. 2d 1325 (Fla. 1993); Green v. Georgia, 442 U.S. 95 (1979).

5. Because the files and records do not conclusively establish that Mr. Mills is entitled to no relief, an evidentiary hearing is warranted.

This claim is evidenced by the following facts:

1. All other allegations and factual matters contained elsewhere in this petition are fully incorporated herein by specific reference.

2. On March 29, 2001, Mr. Mills requested records from, inter alia, the State Attorney's Office in Seminole County pursuant to Fla. R. Crim. P. 3.852 (h)(3). The State responded by indicating that it was forwarding records in its possession generated after Mr. Mills' initial request in 1989 to the repository, as is required by Fla. R. Crim. P. 3.852. Mr. Mills was in contact numerous times with the repository, urging it to process the records as quickly as possible and forward them to Mr. Mills (PCR. 398). Mr. Mills eventually sought to compel the Repository to provide the records to Mr. Mills as soon as possible.

3. The State Attorney's Office sent its records to the repository on April 6, 2001. However, they were not received by Mr. Mills' office until April 17, 2001, when they were thereupon downloaded and printed. When Mr. Mills' counsel returned in the evening of April 18, 2001, from the Wayne Tompkins evidentiary hearing in Hillsborough County, he began to review the records. He discovered information not previously known to counsel and not previously disclosed to counsel by the State pursuant to its obligations under Brady v. Maryland, 373 U.S. 83 (1963).

4. Upon review of the records from the State Attorney's Office of the Eighteenth Judicial Circuit (records which had been generated following Mr. Mills' first request for records in 1989), counsel discovered that unsigned drafts of the order summarily denying Mr. Mills' first Rule 3.850 motion were contained in the State's files. Mr. Mills' counsel also discovered a handwritten note dated from 1989 (the actual dates are illegible), which reads:

5. Based on the discovery of this information, Mr. Mills submits that the State prepared on an ex parte basis the order summarily denying Mr. Mills' first 3.850 motion in 1989. This claim requires factual development. See Smith v. State, 708 So. 2d 253 (Fla. 1998) (appeal relinquished for evidentiary hearing on whether ex parte communication occurred regarding drafting of order); Swafford v. State, 636 So. 2d 1309 (Fla. 1994) (same). There is no other explanation for these unsigned orders being in the State's files.

6. This is the same situation addressed by the Florida Supreme Court in Huff v. State, 622 So. 2d 982 (Fla. 1993), where the Court found a due process violation when collateral counsel was not provided adequate opportunity to review and/or object to the State's proposed order denying relief. Mr. Mills' case is even more egregious, as there is no indication that collateral counsel even knew that the judge had asked the State to prepare the order, much less that collateral counsel had inadequate opportunity to respond. In fact, Mr. Mills' previous collateral counsel, Billy Nolas, has provided an affidavit which indicates that he had no knowledge that Judge Woodson and the prosecutor had had an ex parte communication resulting in the drafting of the order in question (Attachment E). Had counsel known of this, he would have sought Judge Woodson's disqualification.

7. However, because this was not previously known, Judge Woodson then proceeded to preside over the evidentiary hearing ordered by the Florida Supreme Court and made factual findings which have been relied on ever since by the Florida Supreme Court and the federal courts as to Mr. Mills' ineffective assistance of counsel claims. Given this situation and if Mr. Mills were to prevail on this issue, he would be entitled to be put back in a position he should have been in 1990 and have an evidentiary hearing before a new judge. Suarez v. Dugger, 527 So. 2d 190 (Fla. 1988). See also Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993) ("Our remand after Provenzano's initial 3.850 motion was designed to put Provenzano in the same position he would have been in if the files had been disclosed when first requested. Given that Provenzano's ineffectiveness claims have arisen as a result of the disclosure of the file, we find that they are timely raised"). The original ex parte communication taints and vitiates the remainder of the proceedings. Suarez; Smith.

8. The error here is the violation of due process resulting from the lack of notice and the ex parte communication. See Huff v. State, 622 So. 2d 982 (Fla. 1993); Rose v. State, 601 So. 2d 1181 (Fla. 1992). "The essence of due process is that fair notice and a reasonable opportunity to be heard must be given to interested parties before judgment is rendered." Scull v. State, 569 So. 2d 1251, 1252 (Fla. 1990). This is not a situation as addressed in either Glock v. Moore, 776 So. 2d 243 (Fla. 2001), or Patton v. State, 2000 WL 142526 (Fla. Sept. 28, 2000), two cases on which the State relied in the Florida Supreme Court in its pleading opposing relinquishment. Glock and Patton addressed situations where, over defense objections, a court signed the State's proposed orders. In both case, notice was afforded to the defense that the State had proposed an order and the defense was provided an opportunity to object. This is not the situation that Mr. Mills alleges, which involves an ex parte communication about the order denying Mr. Mills relief. This situation is exactly like, and in fact is more egregious, than that addressed in Huff. Had Mr. Mills collateral counsel known of this situation, a motion to disqualify would have been filed and would have to have been granted. Thus, Mr. Mills' evidentiary hearing would have been presided over by a different judge who might have ruled differently and made different factfindings. Suarez v. Dugger, 527 So. 2d 190 (Fla. 1988) (following evidentiary hearing, Court decides that judge should have disqualified himself, and reversed for a new evidentiary hearing); Rogers v. State, 630 So. 2d 513 (Fla. 1994) (same); Smith v. State, 708 So. 2d 253 (Fla. 1998) (same).

9. To the extent that the State would argue that Mr. Mills was not diligent (an argument which must presume that the ex parte communication in fact occurred), such an argument would be meritless. It would also require evidentiary development. Mr. Mills did make a Chapter 119 request in 1989; the documents demonstrating the ex parte communication, however, were generated after the original request. See PCR. 286-87 ("the remaining documents not in existence and in this office's file at the time of the previous requests have been indexed and forwarded to the records repository of the Florida Secretary of State"). Mr. Mills knows, as does the State and as does this Court, that if Mr. Mills had made a demand for public records made after the Florida Supreme Court remanded for an evidentiary hearing in 1990, the State, after making its predictable vituperative allegations about CCR's "vexatious" Chapter 119 requests, would have claimed an exemption because Mr. Mills' case was in active litigation. See State v. Kokal, 562 So. 2d 324 (Fla. 1990). It would be ludicrous for the State to suggest that Mr. Mills should have made the request in 1990, for the State cannot with any good faith establish that it would have honored the request. That being the case, Mr. Mills cannot be faulted for not undertaking a fruitless effort.

10. In addition, any such diligence argument would be a not-so-subtle way of shifting its own obligations onto Mr. Mills. It is the State that has the ongoing duty to disclose exculpatory material during the postconviction process. See Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996). The State has a duty to learn of evidence that might be favorable to Mr. Mills which could form the basis for relief. Kyles v. Whitley, 514 U.S. 419 (1995); Strickler v. Greene, 527 U.S. 263 (1999). This information was in the State's possession, and at no time was it disclosed to Mr. Mills.

11. Because the files and records do not conclusively establish that Mr. Mills is entitled to no relief, an evidentiary hearing is warranted.

Mr. Mills prays for the following relief, based on his prima facie allegations demonstrating violation of his constitutional rights:

1. That an evidentiary hearing be scheduled so as to allow him to present support for his claims, and that such a hearing be conducted at a reasonable time;

2. That he be allowed to proceed in forma pauperis;

3. That he be provided subpoena power for the production of witnesses;

4. That he be allowed leave to supplement this motion should new claims, facts, or legal precedent become available to counsel; and, on the basis of the reasons presented herein;

5. That a stay of execution be granted;

6. That his convictions and sentences, including his sentence of death, be vacated, and a new trial and/or sentencing proceeding be ordered.

I HEREBY CERTIFY that a true copy of the foregoing has been furnished by Federal Express delivery to all counsel of record on April 25, 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:

Tom Hastings, Asst. State Attorney

100 East First Street

Sanford, FL 32771

Kenneth Nunnelley, Asst. Attorney General

Office of the Attorney General

444 Seabreeze Boulevard, 5th Floor

Daytona Beach, FL 32118

Honorable O.H. Eaton, Jr.

Seminole County Courthouse

301 N. Park Avenue

Sanford, FL 32771