ii

iii

CASES

Adams v. State,

543 So.2d 1244 (Fla. 1989) ...............31

and 3.993,

772 So. 2d 488 (Fla. 2000) ...............34

Anderson v. City of Bessemer City,

470 U.S. 564 (1985). ................30, 36

Apprendi v. New Jersey,

528 U.S. 1018 (2000) .................. 1

Armstrong v. State,

642 So.2d 730 (Fla. 1994) ...............31

Buenoano v. State,

708 So. 2d 941 (Fla. 1998) ........... 9, 11, 26

Bundy v. State,

538 So. 2d 445 (Fla. 1989) ............. 8, 26

Card v. State,

652 So. 2d 344 (Fla. 1995). ..........31, 34, 35

Carter v. State,

560 So. 2d 1166 (Fla. 1990) ..............14

Demps v. State,

761 So. 2d 302 (Fla. 2000) ............... 9

Eutzy v. State,

536 So. 2d 1014 (Fla. 1988) ..............20

Glock v. Moore,

776 So. 2d 243 (Fla. 2001) ............. 9, 28

iv

622 So.2d 982 (Fla. 1993) ........3, 5, 10, 16, 24

28, 29, 30, 35, 36

Johnson v. Dugger,

523 So.2d 161 (Fla. 1988) ...............32

Jones v. State,

591 So. 2d 911 (Fla. 1991) ............2, 9, 10

Jones v. State,

709 So.2d 512 (Fla. 1998) ........8, 9, 12, 26, 31

Keen v. State,

775 So. 2d 263 (Fla. 2000) ............... 1

Kight v. State,

26 Fla. Law Weekly S49 (Fla. 2001) ...........10

McCrae v. State,

510 So. 2d 874 (Fla. 1987) ...............32

Medina v. State,

573 So. 2d 293 (Fla. 1990) ............... 2

Mills v. Dugger,

559 So. 2d 579 (Fla. 1990) ............. 3, 33

Mills v. Moore,

26 Fla. Law Weekly S242 (Fla. April 12, 2001) 1, 19, 20, 21

Mills v. State,

476 So. 2d 192 (Fla. 1985) .............16, 20

Mills v. State,

603 So. 2d 482 (Fla. 1992) ...........24, 32, 35

Porter v. State,

478 So. 2d 33 (Fla. 1985) ................32

Provenzano v. State,

761 So. 2d 1097 (Fla. 2000) ..............10

Rose v. State,

601 So. 2d 1181 (Fla. 1992) ............28, 35

v

754 So. 2d 657 (Fla. 2000) ...............11

Spencer v. State,

615 So.2d 688 (Fla. 1993) .............31, 34

State v. Bolender,

503 So.2d 1247 (Fla.), cert. denied, 484 U.S.

873, 108 S.Ct. 209, 98 L.Ed.2d 161 (1987) .......32

State v. Spaziano,

692 So. 2d 174 (Fla. 1997) .............18, 23

Strickland v. Washington,

466 U.S. 668 (1984) ..................32

Swafford v. State,

569 So.2d 1264 (Fla. 1990) .............29, 34

Swafford v. State,

636 So. 2d 1309 (Fla. 1994) ............27, 30

Tedder v. State,

322 So. 2d 908 (Fla. 1975) ........1, 6, 19, 20, 32

Torres-Arboleda v. Dugger,

636 So.2d 1321 (Fla. 1994) ............... 9

United States v. El Paso Natural Gas Co.,

376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) . 29, 30

United States v. Marine Bancorporation,

418 U.S. 602, 94 S.Ct. 2856, 41 L.Ed.2d 978 (1974) ...30

MISCELLANEOUS

Florida Rule of Criminal Procedure 3.850 ...1, 3, 4, 8, 15

1

STATEMENT OF THE CASE AND FACTS

In its April 25, 2001 opinion, the Florida Supreme Court

summarized the facts and procedural history of this case in the

following way:

Gregory Mills, a prisoner under sentence of death and

for whom a death warrant has been signed, appeals the

trial court’s order denying postconviction relief

under Florida Rule of Criminal Procedure 3.850. We

have jurisdiction. See art. V, § 3(b)(1), (9), Fla.

Const. We affirm the trial court’s denial of relief.

On February 13, 2001, Mills filed a consolidated

petition for writ of habeas corpus, petition for

extraordinary relief, and motion to reopen the direct

appeal. Mills raised two issues: (1) that the recent

decision in Apprendi v. New Jersey, 528 U.S. 1018

(2000), establishes that the override scheme under

which Mills was convicted violates the United States

and Florida Constitutions; and (2) Tedder v. State,

322 So. 2d 908 (Fla. 1975), was arbitrarily applied in

this case as established by Keen v. State, 775 So. 2d

263 (Fla. 2000).

On March 22, 2001, Governor Bush signed a death

warrant ordering that Gregory Mills’ sentence of death

be carried out on May 2, 2001. The facts and

procedural history leading up to the time the death

warrant was signed are set forth in Mills v. Moore, 26

Fla. L. Weekly S242 (Fla. Apr. 12, 2001).

Pending this Court’s decision on Mills’ consolidated

petition for writ of habeas corpus, on or around March

27, 2001, Mills made several demands for public

records in the trial court.

On April 12, 2001, we released our opinion as to

Mills’ pending consolidated petition for writ of

habeas corpus. We held that Apprendi is not

applicable to this case since the majority opinion in

2

capital sentencing schemes. We also held that Tedder

was not arbitrarily applied in this case and that Keen

is not new law, but merely an application of the long-standing

Tedder standard.

On April 16, 2001, Mills filed in the trial court a

motion to vacate judgments of conviction and sentence

with request for leave to amend, for evidentiary

hearing and for stay of execution. Mills raised three

claims: (1) there is newly discovered evidence that

Vincent Ashley, the codefendant in this case, gave

false testimony at trial and lacked credibility, which

establishes a reasonable basis for the jury’s life

recommendation thereby rendering the trial judge’s

override of the recommendation in error; (FN1) (2) the

"during the course of a felony" aggravating

circumstance constitutes an automatic aggravating

circumstance and Mills is entitled to reconsideration

of this issue and sentencing relief; and (3) Mills has

been denied access to public records, which violates

his right to due process and equal protection as well

as the Eighth and Fourteenth Amendments to the United

States Constitution and the corresponding provisions

of the Florida Constitution.

After an evidentiary hearing on April 17, 2001, on the

newly discovered evidence issue, the trial court on

April 18, 2001, issued an order denying Mills’ request

for postconviction relief. As to claim I, the trial

court held that the new version of Ashley’s statement

was nothing more than another inconsistent statement

made by this witness. The trial court concluded that

the new version of Ashley’s statement would not have

made a difference in the outcome of this case, citing

Jones v. State, 591 So. 2d 911 (Fla. 1991). As to

claim II, the trial court held that the issue raised

was considered by this Court on direct appeal and in

two later petitions for writ of habeas corpus, and is

therefore procedurally barred, citing Medina v. State,

573 So. 2d 293 (Fla. 1990). As to claim III, the trial

court held that the demands for public records filed

in this case were overly broad, of questionable

relevance, and unlikely to lead to discoverable

evidence. For the reasons more fully set forth below,

v. Dugger, 559 So. 2d 579 (Fla. 1990).

3

three issues raised in the postconviction motion.

(FN1) In the motion for postconviction

relief, Mills alleged that Ashley told

Mills’ attorney a version of the events for

the night of the murder that differed from

Ashley’s trial testimony. At the evidentiary

hearing Ashley refused to testify. The

parties then stipulated that had Ashley

testified his testimony would be

substantially as outlined in the

postconviction motion.

On April 26, 2001, Mills filed another Florida Rule of

Criminal Procedure 3.850 motion in the Circuit Court of Seminole

County. The State of Florida filed a response on that day, and

a Huff hearing was conducted by Circuit Judge O.H. Eaton, Jr.,

late in the afternoon of April 26. Judge Eaton determined that

an evidentiary hearing was necessary on both claims contained in

that Rule 3.850 motion. Those claims were: 1) "newly discovered

evidence" that Vincent Ashley was the "real killer," and 2) "new

evidence" of an "impermissible ex parte communication" with

evidentiary hearing was scheduled for 10:00 AM on April 30,

2001.

THE FACTS FROM THE EVIDENTIARY HEARING

However, prior to April 2001, Anderson never told anyone of

Ashley’s remarks about who committed the murder, albeit, the

remarks were made in 1979 or 1980 within a three day period when

Ashley and Anderson "might" have been in jail at the same

facility at the same time.

4

represented Mills in his first Rule 3.850 proceeding, and that

he was not aware that the order denying relief on that motion

"was drafted by the State." Mr. Nolas also testified that, had

he known about the drafting of the order, he would have filed a

motion to disqualify the presiding circuit judge.

Department of Corrections inmate John H. Anderson testified

that he was incarcerated in the Seminole County Jail with

Vincent Ashley at some time after Mills’ capital trial, and that

Ashley told him that he, rather than Mills, had fired the

gunshot that killed the victim in this case. This testimony is

different from Anderson’s affidvit, which placed the date of the

conversation at a point prior to Mills’ trial. Anderson also

testified, for the first time, that he had another conversation

with Ashley "a year or so later" during which Ashley confirmed

seven felonies, and is currently in the custody of the

5

the presiding judge at Mills’ capital trial, and also during his

first Florida Rule of Criminal Procedure 3.850 proceedings.

Judge Woodson testified that after receiving Mills’ first Rule

3.850 motion and reviewing it, he determined that relief should

be denied without an evidentiary hearing. After making that

decision, he contacted the State Attorney’s Office and directed

them to prepare an order denying relief. Those directions were

complied with, and Judge Woodson entered the order provided to

him. Judge Woodson testified that he would not have signed that

order unless it accurately reflected his ruling.

Nichole Pyle is a Records Management Analyst with the

Florida Department of Corrections. She reviewed the records of

the Department of Corrections and determined that Vincent Ashley

was incarcerated in the state prison system from September of

1980 until January 20, 1984. Dianne Thompson is also a

Department of Corrections employee -- she reviewed the

Department’s records with respect to John Henry Anderson, and

determined that he was incarcerated from 1974 to 1976, and was

not re-incarcerated until 1988. Mary Ames is a supervisor in the

Seminole County Clerk of Court’s Office. She reviewed the

records maintained therein, and determined that Anderson was not

6

Aside from those dates, Anderson was not in the Seminole County

Jail.

Late in the afternoon of May 1, 2001, Circuit Judge O.H.

Eaton, Jr. ordered that:

1. The judgment and order dated April 18, 2001 [sic],

sentencing the defendant to death is set aside. The

court will set a resentencing hearing by separate

order.

2. The order dated January 3, 1991, denying the

defendant’s Consolidated Proffer in Support of Request

for Evidentiary Hearing, Application for Stay of

Execution and Motion for Fla. R. Crim. P. 3.850 Relief

is set aside. A hearing required by the case of Huff

v. State, 622 So.2d 982 (Fla. 1993) will be scheduled

by separate order unless the provisions of paragraph

1 herein become final, making this portion of the

order moot.

3. The execution scheduled for May 2, 2001, is stayed

until further order of this Court or the Supreme of

Florida.

Order, at 13. The State gave notice of appeal on May 2, 2001,

and filed a motion with this Court seeking expedited review.

SUMMARY OF THE ARGUMENT

The Seminole County Circuit Court committed reversible error

when it granted relief on Mills’ third Florida Rule of Criminal

Procedure 3.850 motion without consideration of the procedural

7

motion was not only successive and an abuse of process, but also

contained claims that could and should have been discovered

through the exercise of due diligence long before they were

raised therein.

The Circuit Court abused its discretion when it granted

sentence stage relief based on the testimony of John Anderson.

The Court did not find that Anderson was credible, did not state

in the order granting relief that two of the three versions of

events purportedly related by Anderson were unquestionably

false, and applied an incorrect (and non-existent) standard to

its evaluation of the effect of Anderson’s "testimony" on the

Tedder inquiry.

The Circuit Court erred as a matter of law when it found

that Mills was entitled to relief based upon his claim that the

first order denying Rule 3.850 relief after remand by the

Florida Supreme Court, was the "result of an improper ex parte

communication." The procedure followed in connection with the

production of the order denying relief had not been held

improper in 1989, and it is wrong as a matter of law to find

error based upon a decision of this Court that came years later.

Moreover, the Circuit Court’s order setting aside the January 3,

1991, order is wrong as a matter of law in the unique context

8

a hearing, which is what Mills has already received (the result

of which this Court upheld in 1992). There is no evidence nor

even an allegation other than the fact that the State was asked

to draft a summary denial order that any wrongdoing or erroneous

findings resulted in the case. The Circuit Court has no power

to overrule this Court and thereby usurp the Florida Supreme

Court’s authority, but yet that is what the lower court has done

in the instant order. That result is wrong as a matter of law,

and the improper derogation of this Court’s jurisdiction and

authority must be corrected.

I. THE "ANDERSON" CLAIM

The Circuit Court erroneously granted relief on Mills’ "new

evidence" claim based upon the proffered affidavit and testimony

of John Anderson. This claim is not a basis for relief for the

following independently adequate reasons. The Circuit Court

abused its discretion in setting aside Mills’ death sentence

based upon this wholly incredible claim. Moreover, the Circuit

Court neglected to address any of the multiple procedural bars

to consideration of this successive and abusive claim. Finally,

the Circuit Court was wrong as a matter of law when it found

that Anderson’s testimony was a basis for sentence stage relief

9

credible.

This claim is an abuse of process under Florida Rule of

Criminal Procedure 3.850(f), which prohibits successive motions

for postconviction relief on new and different grounds, and

allows for dismissal of such claims if "the judge finds that the

failure of the movant or the attorney to assert those grounds in

a prior motion constituted an abuse of the procedure governed by

these rules." Dismissal on successive petition grounds is

proper. See, Bundy v. State, 538 So. 2d 445 (Fla. 1989).

Moreover, without waiving the successive petition defense, the

following are additional, independently adequate, grounds for

the denial of relief.

In addressing claims of newly discovered evidence in the

context of under-warrant litigation, the Florida Supreme Court

held:

In Jones v. State, 709 So.2d 512 (Fla. 1998), this

Court reiterated the standard that must be met in

order for a conviction to be set aside based upon

newly discovered evidence:

First, in order to be considered newly

discovered, the evidence "must have been

unknown by the trial court, by the party, or

by counsel at the time of trial, and it must

appear that defendant or his counsel could

not have known [of it] by use of diligence."

Torres-Arboleda v. Dugger, 636 So.2d 1321,

1324-25 (Fla. 1994).

10

be of such nature that it would probably

produce an acquittal on retrial. Jones, 591

So.2d at 911, 915. To reach this conclusion

the trial court is required to "consider all

newly discovered evidence which would be

admissible" at trial and then evaluate the

"weight of both the newly discovered

evidence and the evidence which was

introduced at the trial."

Id. at 521.

Glock v. Moore, 776 So. 2d 243 (Fla. 2001). See also, Demps v.

State, 761 So. 2d 302, 305-06 (Fla. 2000).

With respect to the timeliness of a claim of "newly

discovered evidence," the Glock Court expressly reiterated the

one-year requirement:

exercise of due diligence. See Buenoano v. State, 708

So.2d 941, 947-48 (Fla. 1998);see also Fla. R.Crim.

Pro. 3 .851(b)(4) (providing for extension of time for

filing of motion for postconviction relief where

counsel makes a showing of good cause for the

inability to file the postconviction pleadings within

the one-year time period).

Glock v. Moore, supra. [emphasis added].

This Court has specifically rejected any suggestion that a

claim of "newly discovered evidence" operates to lift or remove

an otherwise applicable procedural bar. See, Jones v. State, 709

So. 2d at 536 n.7 (rejecting Jones' argument that the court must

procedural bar rule. Provenzano v. State, 761 So. 2d 1097, 1100

first affidavit, and the representations of Mills’ present

counsel, were that the statement took place in 1979, before

Mills’ trial. The Court also ignored the fact that Anderson

claimed to have heard another statement by Ashley a "year or so"

later. The evidence established, conclusively, that that

testimony was false. The Circuit Court wholly ignored those

11

evidentiary hearings, even if the testimony had previously been

found to be barred or not to qualify as newly discovered

evidence; Florida Supreme Court instead considered only that

evidence found to be newly discovered); Kight v. State, 26 Fla.

The standard applied to a claim of newly discovered evidence

is the same regardless of whether the "evidence" is applicable

at the guilt or penalty phase of Mills’ capital trial:

In order to provide relief, "newly discovered evidence

must be of such nature that it would probably produce

an acquittal on retrial. The same standard would be

applicable if the issue were whether a life or a death

sentence should have been imposed." Jones v. State,

591 So.2d 911, 915 (Fla. 1991).

Kight v. State, 26 Fla. Law Weekly S49 (Fla. 2001).

The lower court found that Anderson’s testimony was "newly

discovered" because the purported statements were not made until

discrepancies, and by doing so abused its discretion.

12

significantly, Mills’ prior public records request was made some

10 years ago, and this case has been in virtually constant

litigation (and Mills has been represented by counsel) since his

conviction and sentence were affirmed on direct appeal. This

"evidence" could clearly have been discovered in time to be

presented in Mills’ first Rule 3.850 proceeding. Mills cannot

establish due diligence with respect to any claim of "new

evidence." See, Sims v. State, 754 So. 2d 657 (Fla. 2000);

Buenoano v. State, 708 So. 2d 941 (Fla. 1998). The lower court

did not address Mills’ lack of diligence in the proper context

-- it did no more than conclude, erroneously, that Anderson’s

testimony was "newly discovered" because it related to a

conversation that possibly took place after Mills’ trial. The

lower court was wrong as a matter of law when it refused to

consider the timeliness of this claim in the proper context.

Moreover, Mills’ theory of the case has apparently always

been that Ashley was the "real killer." Mills can hardly show

due diligence with respect to this "claim" by waiting until a

death warrant is active before attempting to find evidence to

support an assertion he has made since the time of trial. The

13

until "one of [counsel’s] discussions" with Ashley does not

change that fact that this "information" could have been

discovered in time to be included in Mills’ first Rule 3.850

motion. Mills cannot establish the due diligence component of

the Jones standard because this "evidence" could have been

discovered 20 years ago. This claim is not only successive, but

also procedurally barred -- all relief should have been denied

on this claim.

In addition to being foreclosed on procedural grounds, this

claim is not a basis for relief on factual grounds, either. Mr.

Anderson testified that he, Ashley, and Mills grew up together,

and he was Mills’ friend. He claimed to have met Ashley on the

"yard" when the two of them were in the Seminole County Jail at

the same time. Anderson said that he asked Ashley what happened

with him and Greg. He claimed that Ashley said Mills helped him

through the window and stayed on the porch. Allegedly, Ashley

said he did not realize that the man was awake and was surprised

by him. Ashley’s gun "went off," killing the man. Ashley told

him he felt bad to put it on Mills, but he figured Mills would

put it on him.

However, in his affidavit, Mr. Anderson claimed that Ashley

said he shot Mr. Wright "because he thought the dude was going

in the Seminole County Jail in 1979. This opportune change in

reduced the claim of a second Ashley confession to writing or

disclosed it to the State until the hearing.

14

allegedly said to him differ significantly, even though

Anderson’s affidavit and hearing testimony were separated in

time by only two weeks.

Another difference was that in the affidavit, Anderson

claimed that he talked to Ashley for the first time in 1979. At

the evidentiary hearing, CCRC Investigator Atkinson testified

that when he met with Anderson, Anderson provided the 1979 date

and seemed very sure of it. However, at the evidentiary

first confession from Ashley occurred in 1981 or 1982.

Also at the hearing, Anderson claimed to have had a second

meeting with Ashley in which he again confessed that he was the

shooter. He said this happened about a year after the first

confession Ashley made to him at the jail and occurred in a

Sanford pool hall. He did not mention this to the State’s

investigators who spoke with him on Sunday afternoon, but claims

to have told CCRC Investigator Atkinson at their third meeting,

County Jail from June, 1980 until incarcerated with DOC in

unintentionally) assessed his own credibility when he said that

he never told this alleged Ashley confession story before

accomplice’s version of the crime is for the jury to make. See

15

there were only three days when Ashley and Anderson could have

possibly been in the Seminole County Jail together. During that

time, Anderson was out to court twice. Thus, it is doubtful

that the two men would have come in contact with each other on

the "yard," or otherwise. Moreover, the evidence showed that

Ashley was in DOC from September 1980 through January, 1984 --

he and Anderson could not have met in a pool hall "about a year"

ignored this fact, which establishes that Anderson testified

falsely.

Thus, it is clear that Mr. Anderson’s belated claim that

Ashley confessed to being the actual shooter is unworthy of

invalidate the trial testimony that established Mills was the

shooter and that has not been challenged. Thus, the "actual

killer" claim is without merit and should have been denied by

Carter v. State, 560 So. 2d 1166, 1168 (Fla. 1990). Obviously,

that resolution was adverse to Mills, and should not be second-guessed

22 years later in the exercise of the"father-knows-best"

regard for the physical evidence presented at trial which

revealed that Mills was the one with gunpowder residue on him,

which refutes the notion Ashley fired the weapon, since if

Ashley is believed, Mills would not have had any gunpowder

residue traces on him.

16

The lower court appears to have credited the testimony of

John Henry Anderson which was to the effect that co-defendant

Vincent Ashley told Anderson that he (Ashley) fired the fatal

shot. That court concluded, without legal support, that

Anderson’s testimony, standing alone, was sufficient to produce

a different sentencing result. That decision was made without

that court having had the benefit of observing Sylvester Davis’

trial testimony, or without having observed Ashley’s trial

Ashley’s credibility, just as that court did not have the

opportunity to "observe or hear Sylvester Davis testify," it

likewise did not have the opportunity to observe or hear Vincent

Ashley testify before the sentencing judge. In fact, the Circuit

before Judge Eaton he refused to do so. Such refusal to testify

is not a basis upon which to determine that Ashley is "the least

17

It is not possible for the post-conviction court to determine

Ashley’s credibility, and that court has inappropriately

substituted its judgment of Ashley’s credibility based upon

events which occurred more than twenty years after his trial

testimony. The Circuit Court has substituted its judgment for

that of the sentencing judge based upon matters that the Court

had no opportunity to observe ore tenus. There is no legal

support for such a result. The most that Mills has done is

present a highly suspect challenge to Ashley’s credibility --

that challenge is, in most respects, no different from the

attempted "impeachment" of Ashley that was the subject of the

second Florida Rule of Criminal Procedure 3.850 motion, the

denial of which was affirmed by this Court on April 25, 2001.

Mills v. State, No. SC01-775 (Fla. April 25, 2001).

Regardless of whether Vincent Ashley is the "least credible

witness that has ever appeared before this Court," the fact

remains that the post-conviction court did not observe Ashley’s

trial testimony. The jury and judge were well aware of the

differing versions of events that Ashley had told law

enforcement and of the immunity agreement that Ashley received.

The "Anderson" statement is merely another alleged statement

made by Ashley under suspect circumstances that the lower court

lower court’s order. That omission causes the order to be

misleading.

18

to do so.

Moreover, Anderson never stated that the alleged

conversation between Ashley and Anderson took place after trial

until he testified before the Circuit Court. In fact, in his

sworn affidavit, Anderson said the conversation with Ashley

occurred in 1979, and his attorney represented at the April 26th

Huff hearing that it occurred prior to trial. The lower court

erroneously failed to consider that glaring discrepancy.

Moreover, the lower court completely ignored the fact that the

Anderson testimony regarding a second conversation between

himself and Vincent Ashley, (which as stated by the Court) took

place "a year or so later," could not have occurred because

Ashley was proved beyond doubt to have been incarcerated in the

Anderson’s new and improved version of the statement, which was

revealed for the first time at the evidentiary hearing, and is

sandwiched between statements that are undisputedly false.

There is no doubt that Anderson lied not only in his testimony,

but also in his affidavit -- the Circuit Court erroneously

credited his testimony, and abused its discretion in doing so.

received immunity and did not need a conduit, Anderson, to

convey the different theory as to the "real murderer."

Moreover, defense counsel did not need to wait 20 years to go

talk with Ashley as to whether his testimony at trial was the

truth.

19

concerning an alleged conversation from 20 years ago implicitly

finds that Ashley’s statements are somehow more credible when

they take the form of hearsay from Anderson than when they were

presented under oath at trial through Ashley himself.

Moreover, the Circuit Court does no more than speculate that

the Anderson-Ashley conversation even took place -– the lower

court stated "it is possible that the conversation occurred."

Order, at 5. If it is only "possible" that the conversation

occurred, it is absolutely impossible for the Court to have a

legal basis for granting relief from Mills’ death sentence.

Moreover, the Court has wholly ignored the fact that according

to the evidence presented (if it is to be believed) Ashley

revealed Anderson to Mills’ attorneys –- this requires

acceptance of the absurd suggestion that Ashley would identify

the one person to whom he had "confessed." Stated differently,

it stands reason on its head to believe that Anderson’s

testimony about the Ashley "confession" is true because that

requires acceptance of the notion that Ashley revealed the one

sight of the fact that the hearing is not meant to be a forum to

relitigate issues which have already been fully adjudicated."

State v. Spaziano, 692 So. 2d 174, 179 (Fla. 1997)(Wells, J.

concurring). The lower court committed just such an error in

this case when it set out to reverse the death sentence by

joined in Justice Harding’s concurrence.

20

conviction court’s present opinion of Ashley’s credibility, his

recent behavior in court indicates that he would not do so.

The lower court also employed the wrong legal standard in

evaluating the sentencing order entered in this case. Whether

or not that order, in the lower court’s opinion, would "probably

be summarily reversed as insufficient today," that speculative

standard has no place in the administration of capital

Pursuant to the authority granted under the

Florida Constitution, this Court is often

called upon to interpret the laws. However,

it is not the function of this Court to make

new law on a case-by-case basis in order to

reach a desired result. Once the law has

citizens of this state.

Mills v. Moore, 26 Fla. Law Weekly S242 (Fla. April 12, 2001),

opinion as a claim for relief, it would be subject to summary

denial. Eutzy v. State, 536 So. 2d 1014 (Fla. 1988).

21

opinion of the sufficiency of the sentencing order, that issue

was not before it. It was not contained in Mills’ Florida Rule

of Criminal Procedure 3.850 motion, nor was that motion orally

amended in some fashion to include such a claim. The Circuit

Court has ignored the fact that the sentence was affirmed on

direct appeal by the Florida Supreme Court, and any attack on

the sentencing order is procedurally barred under settled

sufficiency of the sentencing order is erroneous, has no place

in that Court’s opinion, and should be stricken. Moreover, to

the extent that the Circuit Court, on page two of its order,

criticizes the Florida Supreme Court’s Tedder analysis, such a

claim was expressly rejected on direct appeal, has been

repeatedly rejected on collateral attack, and was most recently

rejected on April 12, 2001 by this Court when it held that

Tedder was properly applied in this case. Mills v. Moore, 26

The Circuit Court also erred when it stated, and applied as

order was not an issue in Mills’ Rule 3.850 motion, and the

State had no notice or opportunity to respond to that claim.

Consideration, sua sponte, of such a procedurally barred claim

is disrespectful of this Court’s authority as well as being

unfair to the State and its citizens, which, like any other

litigant, are entitled to due process.

22

would have overridden the jury’s recommendation had the verdict

been returned today." Order at 6. That is not the standard,

and such standard flies in the face of the respect for stare

decisis mandated by the Florida Supreme Court in Mills v. Moore,

26 Fla. Law Weekly S242 (Fla. April 12, 2001). Whether or not

the sentencing order would have been "sufficient today" is

irrelevant to the issue before this Court. This Court upheld the

sentence on direct appeal and upheld the determination that

there were no mitigating circumstances. The lower court’s

opinion that "the trial court was simply wrong by not finding

any mitigating circumstances" is contrary to the law as

announced by this Court, and is a flagrant usurpation of this

The lower court has sought to overrule this Court’s decision on

direct appeal. Such an untenable result is clear legal error.

Likewise, the lower court’s speculation as to the basis for

the jury’s recommendation of a life sentence is inappropriate.

23

and despite the arguments to the contrary, the dissenting

opinions (which speculated with respect to such result) are

merely that –- dissenting opinions which are not the law.

Reliance upon such dissenting opinions is, as Justice Harding

pointed out in Mills v. Moore, improper reliance upon an opinion

that has no precedential value. This Court has rejected,

unequivocally, the suggestion that the "views of past

dissenters" should be adopted to dispose of this case. The lower

court erred as a matter of law when it followed a course that

has been expressly rejected. Moreover, contrary to the

statement by the lower court on page 6 that Ashley’s "disparate

treatment" and the "incentives" given to Davis were not argued

as mitigation, that finding is absolutely incorrect. These

matters were argued in closing argument to the penalty phase

jury and were before the sentencing judge. (R405-419; Supp.

R.97-98). The lower court’s determination to the contrary is

contrary to the facts -- it is a palpable abuse of discretion

which must be reversed.

In concluding that "the death penalty should not be imposed

under the circumstances," the lower court has substituted its

judgment for the judgment of the sentencing judge who heard all

of the evidence - except Anderson’s recent and highly suspect

24

testimony, and its speculation about why the advisory jury

recommended a life sentence is inappropriate.

Anderson’s testimony is inconsistent with all of the other

evidence at trial and is wholly inconsistent with Mills’ own

testimony. Mills testified that he was not involved in any way

in this offense. In granting relief on this claim, based solely

on Anderson’s testimony, the lower court has reversed a death

sentence that has withstood repeated challenges for twenty

years.

This Court must, if it is to credit Anderson’s testimony,

accept that Anderson, who, in the words of the lower court, is

a "long-time friend of the defendant," would hold information

that would save his "long-time friend’s" life until the very eve

of his friend’s execution. That assumption strains credulity

and smacks of contrivance. The Circuit Court has ignored all of

those circumstances in crediting Anderson’s testimony, and its

decision should be set aside.

The Circuit Court erred when it vacated the death sentence

based upon nothing more than the testimony of John Anderson.

That testimony was internally inconsistent. Moreover, with

respect to two out of the three dates mentioned for his

conversation with Ashley, it is unquestionably false. The lower

credibility even though such is the cornerstone of the grant of

penalty phase relief. Such an oversight is inexplicable and

renders the lower court’s order wholly deficient.

25

relief. The State recognizes that its burden with respect to

this issue is a heavy one under the precedent of this Court. See

State v. Spaziano, 692 So. 2d 174 (Fla. 1997). However, the

multiple, and unchallenged, falsehoods that Anderson has

advanced demonstrate a clear abuse of discretion in granting

lower court.

In its order granting relief based upon the testimony, the

lower court repeatedly invokes the incantation of "credibility

determinations," apparently in an effort to insulate that

portion of the order from appellate reversal. However, mere

repetition of the mantra of "credibility" does not protect an

order such as this one, which ignores the blatant falsity of

Anderson’s testimony in order to reach the clearly-intended

result of setting aside the death sentence. It is ironic indeed

that an order which repeatedly refers to the need for "the cold

neutrality of an impartial trial judge" grants relief based upon

such blatantly false testimony. The order leaves no doubt that

the lower court did not believe that Mills deserved death –- it

26

perceived to be error, despite this Court’s multiple contrary

rulings. The grant of relief is based upon false testimony, and

the lower court abused its discretion to reach its result. The

lower court should be reversed.

II. THE "EX PARTE ORDER" CLAIM

The Circuit Court also granted relief on Mills’ claim that

the order on his first Florida Rule of Criminal Procedure 3.850

claim was the product of an "improper ex parte communication."

However, the "relief" granted by the lower court was to set

aside the January 3, 1991 order which was entered by the Circuit

Court following remand by this Court for an evidentiary hearing

on specified ineffective assistance of counsel claims. The order

which the lower court purports to have set aside has already

been affirmed on appeal to this Court. Mills v. State, 603 So.

2d 482 (Fla. 1992). The lower court’s attempt to set that

decision aside is a direct infringement on this Court’s

authority. This claim is not a basis for relief.

Mills alleges that "newly discovered evidence establishes

that an impermissible ex parte communication occurred between

the State and the sentencing judge" during Mills’ first

collateral attack proceeding. He identifies the evidence as an

the order(s) at issue was not among them. However, he did file

an unsigned order, which he represented to be the one at issue,

in the post-conviction court after the April 26th Huff hearing.

27

denying Mills’ 3.850 motion does not provide a basis for relief.

The Circuit Court totally ignored the procedural defenses

pleaded by the State in response to this claim. It is error, as

a matter of law, for the court to refuse to address, or even

acknowledge, well-settled State procedural rules which preclude

consideration of this successive, abusive claim. As is the case

with Claim I, this claim is an abuse of process that is brought

in an untimely manner because it could and should have been

included in Mills’ prior Florida Rule of Criminal Procedure

3.850 motion that was filed on April 16, 2001. By Mills’ own

admission on page 12 of the motion, the records of the Seminole

County State Attorney’s Office (which supply the basis for this

claim), were sent to the records repository on April 6, 2001.

The fact that Mills may not have printed those documents until

April 17, 2001 makes no difference because, as even the Circuit

Court has previously pointed out, the records were available to

this Court numbered SC01-775. According to counsel’s statements

in open court in his previous Rule 3.850 proceeding, he has an

"agent" that is able to go to the repository. (PR52-53).

28

avail himself of that option, and in so doing, failed to act

with due diligence. This claim could have been brought in a

timely fashion. Having failed to raise it timely, Mills has

abused the post-conviction review process and is entitled to no

review, Fla. R. Crim. Pro. 3.850(f)("A second or successive

motion may be dismissed ... if new and different grounds are

alleged, the judge finds that the failure of the movant or the

attorney to assert those grounds in a prior motion constituted

an abuse of the procedure governed by these rules."); See Bundy

v. State, 538 So. 2d 445 (Fla. 1989).

Moreover, this claim is not a basis for relief because it

has not been brought in a timely fashion as required by Jones

and its progeny. The basis for this claim could have been

developed long ago, and it is untimely at this late date in the

proceedings. Buenoano v. State, 708 So. 2d 941 (Fla. 1998).

The testimony of prior collateral counsel Nolas reflects

that he was aware that the Court’s order referred to a response

that had not been served on him. This was raised as an issue in

29

Mills’ counsel was concerned about any possible ex parte

communication with the Judge - such as a response not served on

defense counsel but considered by the Court in making its ruling

- he could and should have raised the issue then. Clearly, he

was on notice of it.

In fact, the order summarily denying relief was entered on

December 20, 1989. Mills’ Motion for Rehearing was filed on

December 28, 1989. His motion to recuse the trial judge was

filed on October 18, 1990. Almost a year after being made aware

of a potential ex parte communication issue, he failed to

include it in his motion to recuse the judge. (See RDA1008-

parte issue, he would have included it in his recusal motion is

without merit. This claim is procedurally barred.

Moreover, assuming arguendo the truth of the averments

contained in Mills’ motion, there is no basis for relief.

In Swafford v. State, 636 So. 2d 1309 (Fla. 1994), the

defendant filed a first Rule 3.850 motion raising numerous

issues. The postconviction judge "summarily denied the motion

30

affirmed the summary denial on appeal. Id. Thereafter, Swafford

filed another 3.850 motion which the same trial judge also

summarily denied. Id. The judge likewise denied the motion for

rehearing and disqualification of himself which Swafford filed

subsequent to denial of the second 3.850. Id. Swafford

appealed from these orders, charging that the judge "engaged in

improper ex parte communication with the state when he directed

the attorney general’s office to prepare the orders denying

relief" as to both 3.850 motions. Id.

Pursuant to this Court’s order, an evidentiary hearing was

held on the ex parte communication issue. Id. The judge

testified that "he, alone, decided how to rule in cases, after

which he instructed his staff to contact the parties and request

proposed orders." Id. The State’s attorneys testified that the

judge’s law clerk had called and "told her what changes to make

in her previously filed order" as to the first 3.850 motion, and

regarding the second, he called "and requested a proposed order

setting out the state’s position." Swafford’s postconviction

attorney testified that he never received notice that the State

had been asked to prepare the order.

This Court distinguished Rose and Huff, both of which Mills

31

filed a motion for rehearing arguing "against the correctness of

the order denying the postconviction relief." Id. at 1311.

Moreover, this Court noted that due to the pending death

warrant, "[t]his matter needed to be disposed of in a timely

manner . . .." Since the judge had "simply requested the state

to prepare an order," there was no improper ex parte

communication. Id.

In the instant case, Judge Woodson testified that he was

operating under the exigencies of a pending death warrant when

the events at issue occurred. Compare, Glock v. Moore, 776 So.

2d 243 (Fla. 2001)(order prepared by State during exigencies of

pending death warrant). He had received and considered both the

defendant’s allegations and claims for relief in the 3.850

motion and the State’s response thereto. After determining that

the motion had no merit, and determining to deny it summarily,

he contacted the State Attorney’s Office and asked that an order

be prepared. The order which was prepared tracked the State’s

response and summarily denied the motion. Judge Woodson

testified that he read the order, and it said what he wanted it

and concluded that only one claim merited an evidentiary

hearing. That hearing was held, and the denial of relief on the

claim was reviewed and affirmed by this Court.

32

entered and served on the parties, Mills’ postconviction counsel

filed a motion for rehearing, arguing against the correctness of

Mills had all of the due process to which he was entitled, and

his ex parte communication claim should have been denied by the

lower court. This Court should reverse the lower court’s order

and deny the ex parte communication claim. Swafford.

Moreover, Huff v. State, 622 So. 2d 982 (Fla. 1993), upon

which Mills and the lower court relied, was not decided until

well after Mills’ postconviction proceeding was concluded. At

the time of this proceeding, the procedure alleged in Mills’

motion, had not been held improper. Therefore, any motion to

disqualify on that basis would have lacked caselaw support. In

fact, at the time of this proceeding, the United States Supreme

Court had recently held:

We, too, have criticized courts for their verbatim

adoption of findings of fact prepared by prevailing

parties, particularly when those findings have taken

the form of conclusory statements unsupported by

citation to the record. See, e.g., United States v. El

Paso Natural Gas Co., 376 U.S. 651, 656-657, 84 S.Ct.

1044, 1047-1048, 12 L.Ed.2d 12 (1964); United States

v. Marine Bancorporation, 418 U.S. 602, 615, n. 13, 94

33

also aware of the potential for overreaching and

exaggeration on the part of attorneys preparing

findings of fact when they have already been informed

that the judge has decided in their favor. See J.

Wright, The Nonjury Trial--Preparing Findings of Fact,

Conclusions of Law, and Opinions, Seminars for Newly

Appointed United States District Judges 159, 166

(1962). Nonetheless, our previous discussions of the

erroneous. United States v. Marine Bancorporation,

supra, at 615, n. 13, 94 S.Ct., at 2866, n. 13; United

States v. El Paso Natural Gas Co., supra, 376 U.S., at

656-657, 84 S.Ct., at 1047-1048.

Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985).

[emphasis added]. Mills does not allege that the order at issue

contains any error that was not corrected by the Florida Supreme

Court.

In any event, Huff is not retroactively available to Mills.

See, Swafford v. State, 636 So. 2d 1309 (Fla. 1994)(denial of

motion to disqualify not error). Mills has not alleged any bad

faith on the part of the state or the judge. Given that the

complained-of practice in this case had not been ruled improper

at the time of Mills’ postconviction proceeding, there is no

basis for relief.

Alternatively, should this Court conclude that this claim

could not have been ascertained through the exercise of due

diligence, the claim must be analyzed as newly discovered

34

different result" standard of Jones. In the context of a claim

of improper drafting of a sentencing order, the Florida Supreme

Court held:

We believe that the allegations of the petition are

sufficient to require an evidentiary hearing on the

question of whether Card was deprived of an

independent weighing of the aggravators and the

mitigators. (FN2) Among the matters that can be

developed at the hearing are the nature of the contact

between Judge Turner and the prosecutors, when the

judge was given the form of the sentencing order, and

at what stage of the sentencing proceeding he gave

copies to defense counsel. Further, an evidentiary

hearing will permit a full exploration of the facts

bearing upon the State's contention that all of the

matters relating to Judge Turner's sentencing

practices in death penalty cases were known or should

have been known more than two years before this

petition was filed. See Adams v. State, 543 So.2d

1244, 1247 (Fla. 1989).

FN2. However, we reject Card's contention

of Spencer v. State, 615 So.2d 688 (Fla.

1993), because Spencer was not intended to

operate retroactively in this respect. See

Armstrong v. State, 642 So.2d 730 (Fla.

1994).

Card v. State, 652 So. 2d 344, 346 (Fla. 1995). [emphasis

added]. The stringent standard applied to sentencing

orders is necessary because the sentencing order must reflect

the judge’s weighing of the aggravation and mitigation. An

order in a Rule 3.850 proceeding serves a different purpose

35

3.850 relief was reviewed by this Court to determine whether the

"unpresented mitigation" would have precluded this Court from

sustaining the sentencing judge’s rejection of the jury’s

advisory sentence. As this Court found:

Even assuming that Bickerstaff's performance was

deficient, Mills has failed to demonstrate that her

failings "actually had an adverse effect on" his

sentence. Strickland, 466 U.S. at 693, 104 S.Ct. at

2067. An override of a jury's recommendation is not

improper simply because a defendant can point to some

mitigating evidence. Moreover, "even though the jury

override might not have been sustained today, it is

the law of the case." Johnson v. Dugger, 523 So.2d

161, 162 (Fla. 1988). As pointed out before, the trial

court had information on Mills' serious criminal

activity committed in the two months between his

release from prison and the killing for which he

received a death sentence that the jury knew nothing

about. Given the psychologists' testimony that Mills'

mental problems boiled down to his being impulsive, it

is purely speculative that the currently tendered

evidence would have carried sufficient weight to

abrogate the judge's override of the jury

recommendation. Routly; Francis; McCrae v. State, 510

So.2d 874 (Fla. 1987); State v. Bolender, 503 So.2d

1247 (Fla.), cert. denied, 484 U.S. 873, 108 S.Ct.

209, 98 L.Ed.2d 161 (1987); Lusk; Porter v. State, 478

So.2d 33 (Fla. 1985). Therefore, in addition to

the jury's recommendation. Cf. Strickland, 466 U.S.

at 700, 104 S.Ct. at 2071 ("there is no reasonable

probability that the omitted evidence would have

changed the conclusion that the aggravating

circumstances outweighed the mitigating circumstances

and, hence, the sentence imposed. Indeed, admission

of the evidence respondent now offers might even have

36

Mills v. State, 603 So. 2d 482, 486 (Fla. 1992). In the context

of this proceeding, Mills must establish that this Court would

not have sustained his death sentence had a different judge

heard the initial Rule 3.850 proceeding. Mills has not done, and

cannot do, that because the evaluation of the evidence as it

applied to the Tedder issue was conducted by the Florida Supreme

Court. Moreover, there is no suggestion that the evidence would

have somehow been different had another judge presided at the

evidentiary hearing. Because there is no reasonable probability

of a different result, Mills is not entitled to relief.

Moreover, the lower court erroneously applied a "presumed

prejudice" standard to the claim that the order denying Mills’

first Florida Rule of Criminal Procedure 3.850 motion was part

of "an improper ex parte communication." That Court found that

the "due process violation becomes a matter of substance and

actual prejudice is not required to be shown." Order at 12.

However, the undisputed facts are that the complained-of order

was vacated by this Court when it remanded a single issue for an

evidentiary hearing, i.e., ineffectiveness of penalty phase

counsel with respect to the presentation of mitigating evidence.

Mills v. Dugger, 559 So. 2d 579 (Fla. 1990).

Analogizing the drafting of the 3.850 order to a sentencing

37

because he received Florida Supreme Court review of the summary

denial and an evidentiary hearing on the only issue meriting

one. Despite Mills’ assertions to the contrary, cases that have

been remanded by this Court for the proper entry of a sentencing

order have not been reassigned to a different circuit judge.

Even if this matter had been brought up on appeal from the

denial of Rule 3.850 relief, the most that Mills would have been

entitled to was an evidentiary hearing - which is precisely what

he received. See Spencer v. State, 615 So. 2d 688 (Fla. 1993);

Card v. State, 652 So. 2d 344 (Fla. 1995). In any event,

assignment of the rule 3.850 motion to the original trial judge

is consistent with the requirement of Florida Rule of Criminal

Procedure 3.851(c)(1). Amendments to Florida Rules of Criminal

Procedure 3.851, 3.852, and 3.993, 772 So. 2d 488 (Fla. 2000).

Moreover, the post-conviction court’s finding that the trial

judge would have been recused (presumably from the Rule 3.850

evidentiary hearing) "because he would have become a witness in

the hearing to determine the propriety of the ex parte

communication," is wholly speculative. That the original Rule

3.850 judge was called as a witness in this proceeding does not

establish that he would have been so called at any hearing

regarding the ex parte communication. In fact, there is no

first rule 3.850 order had not been discovered until after the

evidentiary hearing, there would have been no "automatic

recusal" because the hearing was over. The postconviction judge

would be available to testify as a witness without any

impediment. Moreover, other witnesses might have been presented

at such a hearing, negating any necessity of disqualification of

the presiding judge. See, e.g., Swafford v. State, 569 So.2d

1264 (Fla. 1990)(numerous witnesses, which included the circuit

judge, testified in the proceeding on the alleged ex parte

communication. This Court found that the denial of the motion

to disqualify was proper).

38

completely speculative belief that an evidentiary hearing would

have been conducted, and that the judge would have been a

necessary witness at such a hearing, in order to grant relief in

this proceeding. That result is wrong as a matter of law, and it

should be reversed.

Moreover, as this Court has unequivocally held in the

context of sentencing order error, Mills is not automatically

entitled to relief even if the order denying Rule 3.850 relief

was entered contrary to the requirements of Huff v. State, 622

So. 2d 982 (Fla. 1993) and Rose v. State, 601 So. 2d 1181 (Fla.

1992). Those cases are not retroactively applicable to this

proceeding, and to apply a presumptive prejudice standard (as

the lower court has done) is contrary to the law as it has

developed in this area. See, e.g., Card v. State, 652 So. 2d

39

sense to place the first postconviction judge in error based

upon case law that did not exist at the time in question.

Apparently, the lower court has determined that Mills is

entitled to relief based upon the circumstances of the

preparation of the order summarily denying Rule 3.850 relief.

Thus, the judge reasons, Mills is entitled to a Huff hearing,

and possibly an evidentiary hearing, based upon the 1989 3.850

motion - the motion that this Court finally disposed of 1992.

Mills v. State, 603 So. 2d 482 (Fla. 1992). Mills has not

identified, and the lower court has not discussed, any

purportedly erroneous rulings by the circuit court in the first

evidentiary hearing in this cause. Neither has he, or the lower

court, discussed how the results of such proceeding would be

different now. Absent a conclusion this Court would not have

denied relief on the ineffective assistance of penalty phase

counsel claim had another judge heard the Rule 3.850 evidentiary

proceeding, there is no basis for relief. Mills has already

received the process he was due in the form of an evidentiary

hearing.

Despite the Constitutional pretensions of this claim, there

is no Federal Constitutional issue presented. Anderson v. City

of Bessemer City, 470 U.S. 564 (1985). Mills has shown no

this Court states on page 13 of the order.

40

no sense whatsoever to grant relief in the form of a Huff

hearing because Mills has already received an evidentiary

hearing. This Court has reviewed and approved the result of

that hearing. The circuit court’s instant order is an attempt

to usurp this Court’s authority and jurisdiction. Same is

CONCLUSION

WHEREFORE, the State respectfully submits that the lower

court’s order should be reversed in all respects, the death

sentence reinstated, and the stay of execution vacated.

Respectfully submitted,

KENNETH S. NUNNELLEY

Assistant Attorney General

Florida Bar #0998818

JUDY TAYLOR RUSH

Assistant Attorney General

Florida Bar #438847

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

41

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. Regular Mail/facsimile to

Todd Scher, Litigation Director, Office of the Capital

Collateral Regional Counsel - Southern Region, 101 N.E. 3rd

Avenue, Suite 400, Ft. Lauderdale, Florida 33301, on this 3rd

day of May, 2001.

42

CERTIFICATE OF COMPLIANCE

This brief is typed in Courier New 12 Point.