1 The warrant period runs from 12:00 P.M. April 30th through

12:00 P.M. May 7, 2001.

IN THE SUPREME COURT OF FLORIDA

STATE OF FLORIDA,

Appellant,

18th Circuit Court

Case No. 79-653-CFB

vs. CASE NO. SC-________

GREGORY MILLS,

Appellee.

__________________________/

EMERGENCY MOTION TO VACATE STAY OF EXECUTION

Appellant, the State of Florida, by and through the

undersigned Assistant Attorneys General, hereby respectfully

requests that this Honorable Court enter an Order vacating the

Stay of Execution granted by the Honorable O. H. Eaton on May 1,

2001, in this case. As grounds therefor, the State says:

Appellee Gregory Mills was scheduled to be executed on May

2, 2001. 1 Following an evidentiary hearing before the Honorable

O. H. Eaton on April 30, 2001, Judge Eaton entered an Order

Setting Aside Death Sentence, Staying Execution, and Ordering

Additional Hearings (a copy of that order is attached). The

State of Florida is filing, contemporaneously with this motion,

an Emergency Notice of Appeal and a Motion for Expedited

2

Briefing with regard to the circuit court’s order.

Judge Eaton granted the stay below as part of his ruling

that Mills was entitled to relief on two grounds: Newly

discovered evidence regarding testimony of a State witness at

Mills’ 1979 trial, and the initial order summarily denying

postconviction relief had been drafted by the State after an

improper ex parte communication between the postconviction judge

and the State Attorney’s Office. Neither of these claims

provide a reasonable basis for the granting of a stay of

execution on a successive postconviction motion.

In State v. Salmon, 636 So. 2d 16 (Fla. 1994), this Court

vacated a stay of execution and quashed an order granting an

evidentiary hearing entered by the Honorable Michael H. Salmon,

based on a successive postconviction motion which alleged that

the defendant, Roy Allen Stewart, under an active death warrant,

had received ineffective assistance of trial counsel. This

Court held that the claim of counsel’s deficiency was not likely

to have affected the outcome of the case, and therefore, the

stay should not have been entered. 636 So. 2d at 17. In

addition, this Court noted that Stewart’s allegations had, or

could have, been made previously, and therefore, offered no

reasonable basis for a stay of execution. Id.

 

Like Stewart, Mills has had multiple opportunities to

demonstrate the wrongfulness of his conviction or sentence.

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Such claims could not have affected the validity of Mills’

conviction or sentence, and therefore, the stay should not have

been granted.

Florida law is well-settled that "[t]he execution of a death

sentence may be stayed only by the Governor or incident to an

appeal." § 922.06(1), Fla. Stat. (2000); State ex rel. Russell

v. Schaeffer, 467 So. 2d 698 (Fla. 1985); Goode v. Wainwright,

 

448 So. 2d 999, 1001 (Fla. 1984)("When the death warrant is

issued by the governor, the execution of the death sentence can

be stayed only by the governor or 'incident to an appeal.’");

 

Spalding v. Dugger, 526 So. 2d 71, 73 (Fla. 1988)("In order for

[the Florida Supreme Court] to grant a stay of execution, there

must be an appeal or habeas corpus pending before this Court

...."); Bundy v. State, 490 So. 2d 1257 (Fla. 1986); Sullivan v.

State, 372 So. 2d 938 (Fla. 1979).

Mills has not presented a colorable basis for granting

relief, as required to justify the stay entered herein. 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).

Under settled United States Supreme Court precedent, "a stay

of execution pending disposition of a second or successive

4

federal habeas petition should be granted only when there are

‘substantial grounds upon which relief might be granted.’" Delo

v. Stokes, 495 U.S. 320, 321 (1990)(per curiam)(quoting Barefoot

v. Estelle, 463 U.S. 880, 895 (1983)). As the United States

Supreme Court has emphasized "[e]ntry of a stay on a second or

third [habeas] petition is a drastic measure, and we have held

that it is ‘particularly egregious’" to enter a stay absent

substantial grounds for relief. Bowersox v. Williams, 517 U.S.

345 (1996)(quoting Delo v. Stokes, 495 U.S. 320 (1990).

Although the lower court has determined that the sentence

should be vacated, this determination rests on the assumption

that this Court’s prior rulings on Mills’ post conviction claims

was erroneous. 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).

Based on the foregoing arguments, the stay of execution

should be vacated. See Darden v. State, 521 So. 2d 1103 (Fla.

1988)(court not required to issue a stay on a successive motion

for post-conviction relief even if the same issue is pending in

the United States Supreme Court in another case).

WHEREFORE, the State respectfully requests that this

Honorable Court VACATE the Stay of Execution entered below.

Respectfully submitted,

5

 

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

KENNETH NUNNELLEY,

Assistant Attorney General

Florida Bar #0998818

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

 

JUDY TAYLOR RUSH,

 

Assistant Attorney General

Florida Bar #0438847

444 Seabreeze Blvd. 5th FL

Daytona Beach, FL 32118

(904) 238-4990

 

CO-COUNSEL FOR STATE OF FLORIDA

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

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

Todd G. Scher, Litigation Director, Office of the Capital

Collateral Regional Counsel - South, 101 N.E. 3rd Avenue, Suite

400, Ft. Lauderdale, Florida 33301, this _______ day of May,

2001.

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CO-COUNSEL FOR STATE OF FLORIDA