i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . 11

I. THE MENTAL RETARDATION AS A BAR TO EXECUTION CLAIM . . . . 11

II. EXECUTION OF THE MENTALLY ILL IS UNCONSTITUTIONAL . . . . 20

III. THE "NEW EVIDENCE" OF BRAIN DAMAGE . . . . . . . . . . . 22

IV. THE PET/SPECT SCAN CLAIM . . . . . . . . . . . . . . . . 24

V. THE "CLARIFICATION" OF DR. KIRKLAND’S TESTIMONY . . . . . 25

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 27

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 27

ii

470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . . 22

Atkins v. Virginia,

122 S.Ct. 29 (2001) . . . . . . . . . . . . . . . . . . 19

702 So. 2d 1250 (Fla. 1997) . . . . . . . . . . . . 12, 15

413 So. 2d 756 (Fla. 1982) . . . . . . . . . . . . . . . 23

234 F.3d 526 (11th Cir. 2000) . . . . . . . . . . . . . . 1

685 So. 2d 1302 (Fla. 1997) . . . . . . . . . . . . . . . 1

443 So. 2d 962 (Fla. 1983) . . . . . . . . . . . . . . . . 1

674 So. 2d 621 (Fla. 1996) . . . . . . . . . . . . . . . . 1

755 So. 2d 616 (Fla. 2000) . . . . . . . . . . . . . . . 12

742 So. 2d 233 (Fla. 1999) . . . . . . . . . . . . . . . 24

462 So. 2d 1074 (Fla. 1984) . . . . . . . . . . . . . . 12

900 F.2d 1292 (8th Cir. 1990) . . . . . . . . . . . . . 11

776 So. 2d 243 (Fla. 2001) . . . . . . . . . . . . . . . 24

82 So. 2d 504 (Fla. 1955) . . . . . . . . . . . . . . . 12

82 So. 2d 504 (Fla. 1955) . . . . . . . . . . . . . . . 12

iii

709 So. 2d 512 (Fla. 1998) . . . . . . . . . . . . . . . 23

788 So. 2d 917 (Fla. 2001) . . . . . . . . . . . . . 10, 15

761 So. 2d 1097 (Fla. 2000) . . . . . . . . . . . . . . 15

761 So. 2d 269 (Fla. 1999) . . . . . . . . . . . . . . . 25

783 So. 2d 980 (Fla. 2001) . . . . . . . . . . . . . 24, 25

742 So. 2d 215 (Fla. 1999) . . . . . . . . . . . . . . . 15

788 So. 2d 238 (Fla. 2001) . . . . . . . . . . . . . . . 15

788 So. 2d 249 (Fla. 2001) . . . . . . . . . . . . . . . 15

733 So.2d 980 (Fla. 1999) . . . . . . . . . . . . . . . 14

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . . 24

1

This is an appeal from the January 18, 2002, order issued by

Orange County Circuit Judge Anthony Johnson denying relief on

motion. The "Statement of the Case" set out on pages 1-3 of

relies on the following Statement of the Case.

Bottoson was convicted and sentenced to death for the October

1979 murder of Catherine Alexander. This Court affirmed his

So. 2d 621 (Fla. 1996). Bottoson’s state petition for a writ of

2d 1302 (Fla. 1997). The denial of Federal habeas corpus relief was

affirmed by the Eleventh Circuit Court of Appeals in November of

A warrant for the execution of Bottoson’s sentence of death

was issued on November 19, 2001, and execution is scheduled for

February 5, 2002, at 6:00 P.M. Bottoson initiated the public

records process on December 12, 2001, by filing various requests

for production of documents. (R730-43). Proceedings were conducted

with respect to the public records requests, and those matters were

resolved (to Bottoson’s satisfaction), on December 20, 2001.

Circuit Court. (R1529-30).

but instead states that the evidence from the hearing "will be

tone, hyperbolic in effect, and grossly misleading in character.

The State relies on the Statement of the Facts contained herein.

2

On January 11, 2002, Bottoson filed a successive motion for

to the successive motion on January 14, 2002, (R1546-1628), and a

appropriate to hold a hearing on Claim I of the motion, which

alleged that Bottoson was mentally retarded and that his execution

would therefore violate various constitutional dictates, and on a

standards of decency" prohibit the execution of an individual who

is "mentally ill." (R1396). That evidentiary hearing took place on

January 16 and 17, 2002, and consisted of the testimony of three

expert witnesses. (R319; 423; 499). On January 18, 2002, the

Circuit Court issued an order denying relief on Bottoson’s

successive Rule 3.850 motion. This appeal follows.

Bottoson called Henry Dee, Ph. D., a licensed clinical

psychologist, to testify about his opinions and conclusions

regarding Bottoson’s mental state. (R319-423). Dr. Dee testified

functioning, and explained his failure to undertake such an

assessment by claiming that it would not be possible to do so since

Bottoson is incarcerated. (R379; 416). He provided no support for

that claim other than his belief that it is so.

examination, about a previously unrevealed test called the

"Leiter". (R417; 419). Dr. Dee does not use this test, and knows

3

that, in his opinion, and as a result of his testing, Bottoson has

a Full Scale IQ score of 84. (R345; 347). Dr. Dee also testified,

that, in his opinion, Bottoson is mentally retarded, even though

Dr. Dee can identify no source that is accepted among mental health

professionals that indicates (or even suggests) that it is

appropriate to make such a diagnosis of an individual having a Full

an individual’s Full Scale IQ be 70 or below before a diagnosis of

mental retardation is appropriate, but attempted to explain why he

which, in addition to significantly subaverage intellectual

State’s Exhibit 1). Dr. Dee opined that Bottoson is mentally

retarded based upon his score on an unidentified "intelligence

test" administered to him in 1951 while he was a student in the

little about it. (R417). His reference to it was based upon

hearsay, apparently conveyed to him by Mosman. (R416). Dr. Dee

apparently did not rely on this test in reaching his opinions and

conclusions.

successfully interpret a score on the "Terman" while "not knowing

anything about the testing situation, what the Terman really is,

information to make any kind of conclusion." (R519).

4

identified by the name "Terman," and Dr. Dee assumed that this must

have been a Stanford-Binet test instrument -- he provided no

not possible for someone to "fake good" on intelligence testing.

(R375). In other words, an individual cannot produce an IQ score on

(R376).

Harry McClaren, Ph. D., is a forensic psychologist who

459; 468). Dr. McClaren testified that, under the prevailing

professional norms, mental retardation is defined as being

significantly subaverage intellectual functioning (which is an IQ

of approximately 70 or below on an individually administered IQ

test) accompanied by concurrent deficits or impairments in present

adaptive functioning, with an onset before the age of 18. (R483;

State’s Exhibit 1).

Dr. McClaren reviewed a number of documents relevant to this

intelligence test. (R468).

put to an individual familiar with the person being assessed.

(R509). Those questions concern various aspects of daily life, and

are designed to generate information about the individual’s ability

to function and the life skills he possesses. (R511-12).

no longer must engage in adaptive functioning. (R476).

5

individuals who have had contact with Bottoson while he has been

incarcerated; and caused a Vineland Adaptive Behavior Scale to be

that procedure indicated that Bottoson’s present level of adaptive

intelligence testing conducted by Dr. McClaren, Bottoson generated

a Full Scale IQ score of 85. (R451; 474). Dr. McClaren testified

that, in his opinion, Bottoson is not mentally retarded under any

accepted definition of that condition, that his IQ is in the lowaverage

range, and that it would be inappropriate to diagnose

Bottoson as mentally retarded based upon his IQ score and his level

of adaptive functioning. (R474). Dr. McClaren further pointed out

that, professionally speaking, there was no need to conduct the

Vineland Scale because Bottoson’s IQ is so far above the cut-off

score for a diagnosis of mental retardation that such a diagnosis

would not be proper under prevailing professional practice. (R460;

476-7). Dr. McClaren emphasized that, at the time of his testing

Department of Children and Families -- as a part of those

Behavior Scale. (R508).

administered by asking the series of questions contained in it to

an individual ("informant") who is familiar with the subject of the

evaluation. (R509-512). The "informant" in this case was a

Correctional Officer Sergeant who has known Bottoson and been in

contact with him over the preceding eight or nine years. (R510). In

the case of an incarcerated or institutionalized individual, this

is the proper procedure to follow in utilizing the Vineland Scale.

(R502). Dr. Prichard has followed this procedure many times in

other cases, and this procedure follows the procedures set out in

the Vineland’s manual (which specifies how to administer the test

instrument). (R502; 510; 527; 535). It would be professionally

inappropriate to administer the Vineland to someone (such as a

family member) who has not had regular and recent contact with

Bottoson. (R529).

6

and evaluation of Bottoson, he did not have any information about

the Full Scale IQ score obtained by Dr. Dee (which was not provided

until January 15, 2002), and therefore, because of the gravity of

the case, had the Vineland conducted in an overabundance of

caution. (R476-77).

The State also presented the testimony of Greg Prichard, Ph.

D., who is a forensic psychologist with a sub-speciality in mental

Adaptive Behavior Scale at Dr. McClaren’s request, and testified

that it is "common practice" to administer that adaptive behavior

overarching objective of the Vineland is to assess the adaptive

point in even assessing Bottoson’s adaptive functioning because his

IQ score (which is valid) is so far above the cut-off for a

diagnosis of mental retardation. (R504). Dr. McClaren and Dr. Dee

obtained IQ scores in the mid-80s, and those scores are consistent

with the BETA score of 86 Bottoson received when he was tested by

the United States military at age 18. (R506).

7

skill presented by the particular question contained on the test

instrument, and that the manual requires flexibility in getting at

the skill based upon the individual’s life circumstances (which can

include incarceration or institutionalization). (R564; 571; 589).

The Vineland Scale indicated that Bottoson’s level of adaptive

functioning fell within the normal range. (R515). Dr. Prichard

testified that Bottoson is not mentally retarded, and that it is

inappropriate to attempt to label him as such because his Full

Scale IQ score is far above the cut-off score at which an

Dr. Prichard testified that the process of determining whether a

person should be diagnosed as mentally retarded begins with an

only when those assessments indicate mental retardation does the

focus become determining whether the condition was present before

the age of 18 (the third diagnostic criteria). (R523). None of the

collateral source information about Bottoson, which was obtained

through interviews of persons in contact with him and through

review of pre-existing records, indicates that he is mentally

he appeared to be of average intelligence. (R519-20).

motion, and is the definition applied by the Circuit Court in

resolving the issue before it. Because Bottoson advanced that

definition, it would make no sense at all, and could not be in good

faith, for him to argue that mental retardation is in some way

"undefined."

requirement that the adaptive functioning deficits exist in the

8

THE CIRCUIT COURT’S ORDER

In its order denying relief on Bottoson’s Rule 3.850 motion,

the Circuit Court made various findings of fact with respect to the

matters presented at the January 16-17, 2002, evidentiary hearing.

Specifically, the Circuit Court found, after consideration of all

of the evidence presented at the hearing, that Bottoson is not

mentally retarded, regardless of whether the "clear and convincing

evidence" standard (or the lesser "preponderance of the evidence"

definition of mental retardation is "significantly sub-average

intellectual functioning and deficits in adaptive behavior

testified at the evidentiary hearing were in essential agreement

Full Scale IQ score of 84 on the intelligence test administered by

9

Bottoson’s argument that the score he attained on the performance

part of the Wechsler test should be considered in isolation, and

concluded that the credible testimony indicated that "it is

improper to draw conclusions about overall intelligence based on

how a subject scores on a specific component of an intelligence

Court declined to rely upon a test referred to as the "Terman,"

stating that:

Bottoson argues that a notation on his school records

that he scored a 77 on something called a "Terman" test

in 1951 demonstrates his sub-average intellectual

functioning. This Court disagrees. First, no expert could

testify with certainty what that test was, or the

significance of that score. Second, if, as Dr. Dee

speculated, that test was a version of the Stanford-Binet

test, the score of 77 is still above the mental

retardation range. Third, the more recent data, which was

obtained through the use of instruments available to the

parties’ experts for analysis, shows that Mr. Bottoson is

of at least low average intelligence. Accordingly, the

Court finds that the evidence shows that Mr. Bottoson’s

intellectual functioning is average, rather than subaverage,

and therefore outside the mental retardation

range. Thus, Mr. Bottoson is not mentally retarded.

The Circuit Court also discussed the second, adaptive

functioning, component of the diagnostic criteria for mental

retardation. The Court stated:

Although the Court finds that Mr. Bottoson’s failure to

satisfy the first prong of the test for mental

retardation provides an adequate and independent ground

not the first time Dr. Dee has been found to be an incredible

10

to deny this claim, the evidence also indicates that he

cannot satisfy the second prong of the test.

Prichard had in some way inappropriately assessed his level of

Prichard’s explanation of the process used to evaluate Bottoson’s

level of adaptive functioning to be credible, and accepted that

Bottoson does not "demonstrate the deficiencies in adaptive

that is so, Bottoson is not mentally retarded, and fails to satisfy

either of the first two prongs of the definition of mental

two adequate and independent grounds for determining that Bottoson

In concluding that Bottoson is not mentally retarded under

either the preponderance of the evidence or the clear and

convincing evidence standard, the Court stated:

Only Dr. Dee found Mr. Bottoson to be mentally retarded,

and the Court finds his basis for that opinion to be

unacceptably vague in light of the objective evidence,

basic premise that, "[b]eing retarded means more than scoring low

Cir. 1990).

11

The remaining claims contained in Bottoson’s Rule 3.850 motion

were denied on procedural grounds, and are discussed as appropriate

in the argument section herein.

The Circuit Court properly found that Bottoson is not mentally

retarded, and denied relief on the mental retardation issue. That

Court observed the witnesses, and was in the best position to make

the necessary credibility determinations.

The Circuit Court correctly found, as a fact, that Bottoson is

not mentally retarded. No credible evidence suggests that he is.

The Circuit Court correctly denied relief on procedural

grounds on the claims that were not the subject of the Rule 3.850

hearing.

I. THE MENTAL RETARDATION AS A BAR TO

EXECUTION CLAIM

On pages 5-43 of his brief, Bottoson argues that the Circuit

Court incorrectly decided his claim that it would be

unconstitutional to carry out his death sentence because he is

mentally retarded. The Circuit Court found, after a full and fair

evidentiary hearing, that this claim had no factual basis because

false.

12

fact is supported by competent substantial evidence, and should not

be disturbed. Because there is no factual basis for this claim, the

constitutional issue is not present in this case and need not be

decided. Alternatively, Bottoson’s mental retardation as a bar to

execution claim is procedurally barred because it could have been

616, 620 n.2 (Fla. 2000).

The standard of review applied by this Court in reviewing the

trial court’s ruling on a Rule 3.850 motion following an

evidentiary hearing is:

As long as the trial court’s findings are supported by

competent substantial evidence, "this Court will not

‘substitute its judgment for that of the trial court on

questions of fact, likewise of the credibility of the

witnesses as well as the weight to be given to the

evidence by the trial court.’"

Mental retardation is defined as significantly sub-average

intellectual functioning (which is in turn defined as an IQ of

evidence as State’s Exhibit 1.

expert testimony, and suggests that the upper range score is not so

functioning. The difference is not of great significance in this

case, since Bottoson has not demonstrated significantly sub-average

intellectual functioning, and therefore does not even meet the

first of the three required diagnostic criteria.

because he never sought to supply a different definition, and

because all of the mental state experts agreed on the definition of

mental retardation, Bottoson cannot argue in good faith that he was

unaware (or unsure) of the proper definition. Dr. Dee, Bottoson’s

own expert, testified that the definition of mental retardation has

been settled for years. (R329).

13

approximately 70 or below on an individually administered IQ test),

which is accompanied by concurrent deficits or impairments in

present adaptive functioning, with an onset before the age of 18.

of mental retardation: Significantly sub-average intellectual

functioning and deficits in adaptive behavior manifesting before

definition, and concluded, after hearing all of the evidence, that

733 So.2d 980, 992 (Fla. 1999). Bottoson’s score places him in the

requirement (or reason) to inquire into the pre-18 onset criteria.

(R502; 506).

Prichard testified in detail about the "decision tree" utilized in

the diagnosis of mental retardation. (R523).

14

significantly sub-average intellectual functioning with a full

and Bottoson has neither one -- because that is so, he is not

does not have significantly sub-average intellectual functioning,

and because he does not have deficits in his present adaptive

behavior, he is not mentally retarded -- because he is not mentally

retarded, the "onset" of a non-existent condition cannot be prior

to the age of 18. Stated in different terms, the absence of the

first two diagnostic criteria renders the "pre-18 onset" criteria

Bottoson has identified no evidence, credible or otherwise, that

is retarded because he says that he is. That testimony satisfies no

diagnostic criteria.

15

factual finding that Bottoson is not mentally retarded, which was

made after observing the demeanor of the witnesses and assessing

their credibility, is supported by competent substantial evidence,

rejection of the testimony of Dr. Henry Dee was supported by

(Fla. 1999) (the role of the trial court in an evidentiary hearing

further discussion of the issue is necessary, the trial court found

that Bottoson’s expert, Dr. Dee, was not credible, stating, "Only

Dr. Dee found Mr. Bottoson to be mentally retarded, and the Court

finds his basis for that opinion to be unacceptably vague in light

To the extent that Bottoson argues that § 921.137 does not

contain a proper definition of mental retardation, that claim is,

at best, disingenuous. The diagnostic criteria for mental

retardation are not complex, and it is not difficult for a mental

need anyone to tell him how to diagnose mental retardation. (R370).

Circuit Court agreed that "we don’t yet know exactly what mental

yet been presented. It is disingenuous for Bottoson to ascribe some

other meaning to that statement.

Prichard testified that the pre-18 onset component of the mental

retardation criteria "made no sense." That is a false

representation of Dr. Prichard’s testimony which was that it made

no sense to do as Bottoson wants to do and go back 50 years in an

attempt to establish mental retardation because the issue is

16

as Drs. McClaren and Prichard testified, the WAIS-III and the

Vineland Adaptive Behavior Scale are, in fact, standardized tests,

standardized tests that are employed in making a diagnosis of

State’s Exhibit 1. Likewise, as Dr. Prichard testified, "rules" put

forth by the Department of Children and Families are not necessary

in order to make the determination that Bottoson is not mentally

retarded -- his IQ score of 84 is so far above the maximum score at

which a diagnosis of mental retardation would be appropriate that

505). There are no diagnostic criteria under which it would be

In his brief, Bottoson argues that the "Terman" test referred

have viewed the "Terman" score in 1959, nor was he sure about what

diagnosis would be attached thereto in 1959. (R614). The 1959

diagnosis does not matter, because the "Terman" was administered to

Dee’s rebuttal testimony, which begins on R598, was presented for

16, and could provide no references to support his conclusion.

(R607-8). However, if the standard deviation was 15, a score of 70

would be required for the individual being tested to score at the

two-standard-deviation benchmark. (R611). If the standard deviation

was 16, a score of 68 would fall to that level. (R610). Bottoson’s

611).

17

claim, and Bottoson’s own expert, Dr. Dee, could not say what the

may be that the test at issue was, in fact, the Stanford-Binet,

their hand-picked expert was not willing to make that conclusion.

Moreover, as Dr. Dee testified, there are any number of factors,

including scoring errors, which could have affected Bottoson’s

score on the unknown, unidentified test. (R386-88). In any event,

accepting for the sake of argument the assumption that the "Terman"

is the Stanford-Binet, the score of 77 is not two standard

event, it is not possible for an individual to "fake good" on an

intelligence test -- in other words, it is not possible for an

expert, Mosman (who did not testify), Dr. Dee testified that the

full scale score of 84 was a valid result. (R392). Any score

obtained by Mosman is meaningless -- Bottoson had every opportunity

to call that person as a witness, but did not.

for "singular adherence to his own theories," this argument is, at

the very least, consistent with a failure to recognize the internal

inconsistencies contained in Dr. Dee’s testimony in general, and in

18

(R392). To the extent that Dr. Dee seeks to minimize the importance

of Bottoson’s Full Scale IQ score of 84 in favor of emphasizing the

performance scale only, no basis for doing that is advanced other

To the extent that Bottoson engages in extensive criticism of

Dr. Prichard’s assessment of his adaptive functioning through the

administration of a Vineland Adaptive Behavior Scale, the

overriding consideration is that Bottoson does not exhibit

significantly sub-average intellectual functioning, and, because

that is so, there is no reason (from a mental health standpoint) to

address the adaptive functioning component of the diagnostic

criteria. R504). Nonetheless, Dr. Prichard did assess Bottoson’s

adaptive functioning in his present environment, which is the

process through which such an assessment is conducted. (R523). As

Dr. Prichard testified, the inapplicability of a particular

assessment item to an individual because he is incarcerated (or

institutionalized) is not the issue presented by the Vineland’s

for 20 years on death row. The real significance is that no one in

the Department of Corrections perceives him as mentally retarded.

(R392-3; 516).

no more than an historical discussion since Bottoson is not

impact this case under any scenario.

19

inquiry items -- the issue is whether the individual exhibits the

skill subsumed within the item based upon his present life

circumstances. (R509). The fact that an individual is incarcerated

(or institutionalized) does not mean that that individual ceases to

function -- it means that his adaptive functioning is reflected by

his life circumstances, and any assessment of his adaptive

functioning makes it necessary to assess his adaptive functioning

the hyperbole of Bottoson’s brief, and despite his dissatisfaction

with the results, Dr. Prichard conducted his evaluation in a

fashion that comported with the relevant professional standards. In

any event, even if the various Vineland items about which Bottoson

there is no evidence at all that the outcome of the Vineland (that

Bottoson is in the normal range) would change. (R512-15). Bottoson

meets none of the diagnostic criteria for mental retardation, as

the Circuit Court found. Bottoson is entitled to no relief on this

claim because the claim contained in his brief has no basis in

execution" claim, and that issue is not before this Court.

20

II. EXECUTION OF THE MENTALLY ILL IS UNCONSTITUTIONAL

On pages 43-46 of his brief, Bottoson argues that his

execution is barred under various legal theories because he is

"mentally ill." The Circuit Court denied relief on this claim,

finding it not only meritless, but also procedurally barred.

To the extent that this claim is based upon a claim that

Bottoson is mentally retarded, that claim fails because it has no

extent that Bottoson claims that "current standards of decency"

is, as the Circuit Court found, procedurally barred because it

could have been but was not raised at trial, on direct appeal, or

in Bottoson’s prior Rule 3.850 proceeding, during which he

presented extensive evidence as to his mental state. Bottoson’s

failure to raise this claim in a timely fashion is a procedural bar

Bottoson’s claim was insufficiently pleaded below (and is

inappropriate here) because Bottoson has never provided the

explanation for his failure to raise this claim in his prior postconviction

the Circuit Court found, Bottoson’s claim fails because it has no

Rule 3.850 proceeding was that Bottoson suffers from

subject in this proceeding was that Bottoson suffers from

"psychosis not otherwise specified." (R427). Bottoson presented no

testimony in addition to that brief reference, even though he had

every chance to do so. His complaints of a denial of a fair

opportunity to present evidence of his "neurological impairments"

set out at page 46 of his brief are frivolous.

21

authority for the proposition that either the United States or

Florida Constitutions prohibit the execution of an individual

To the extent that Bottoson complains that he was denied a

"fair opportunity to establish the extent of his neurological

impairments," it is noteworthy that he was evaluated by at least

two mental state experts that were selected by him, but that only

one of those experts, Dr. Dee, testified. The other "expert,"

Mosman, submitted a lengthy affidavit (R1414), but was not called

to testify, even though Bottoson had every opportunity to do so.

The only reasonable conclusion to be drawn therefrom is that

Mosman’s testimony would have been more damaging than helpful to

Bottoson’s cause. It stands reason on its head to suggest that a

decision not to call a witness can be turned into a claim of a

denial of a full and fair hearing. Bottoson is not entitled to any

relief.

22

III. THE "NEW EVIDENCE" OF BRAIN DAMAGE

On page 46 of his brief, Bottoson argues that he is entitled

to relief because he has "newly discovered evidence" of what he

describes as "brain damage." According to Bottoson’s brief, this

claim is based upon evaluations conducted by two psychologists

which took place since the November 19, 2001, signing of his death

warrant.

The collateral proceeding trial court found this claim

procedurally barred, stating:

In preparation for the hearing on his previous Rule 3.850

motion, Mr. Bottoson was evaluated by his own witness,

Dr. Robert Phillips, a physician. At the evidentiary

hearing in 1991, Dr. Phillips testified as to Mr.

Bottoson’s mental condition, averring that Mr. Bottoson

was a latent schizophrenic. At no time did he indicate

that Mr. Bottoson suffered from brain damage.

at this late date proves nothing more than the truism that mental

widely and frequently on what constitutes mental illness ..."). As

the Circuit Court pointed out, this Court decided the same issue

adversely to Bottoson’s position 20 years ago, when this Court

stated:

If ‘evidence’ such as that offered here is found to

warrant a new proceeding, there will be no end to the

appeal process. The finality of the judicial process

would be nil if a new proceeding was required everytime

a party found an expert who reached a conclusion, with

regard to information available at the time of trial,

23

that differed from the opinions and conclusions presented

at that trial. There must be a point at which the

proceeding is concluded and the matter is settled.

proceeding trial court found, Bottoson could have been subjected to

additional mental state evaluations at the time of the previous

Rule 3.850 litigation -- the fact that such evaluations were not

undertaken precludes this claim because Bottoson cannot establish

(Fla. 1998). Obviously, the "evidence" at issue "existed" at the

time of the prior Rule 3.850 proceeding, and, had Bottoson been

unhappy with the testimony of Dr. Phillips, he could easily have

sought out another expert (or two). This claim cannot meet the

standard for newly discovered evidence, and is not available as a

basis for relief.

Moreover, as the Rule 3.850 court found, this claim is

the time of his first Rule 3.850 motion, and, because he did not,

he is time barred from relitigating that motion under a different

mental state theory. Bottoson’s failure to comply with Rule

3.851(e)(2)(B), which requires a successive collateral attack

motion to state the reasons for the failure to timely present the

claim, also compels the imposition of a procedural bar to

relitigation of this claim, and is an independent and adequate

additional basis for the denial of relief.

24

IV. THE PET/SPECT SCAN CLAIM

On pages 46-48 of his brief, Bottoson argues that the Circuit

Court erred in finding that the results of a PET or SPECT scan

would not be "newly discovered evidence" under controlling Florida

law. This claim was correctly decided by the Circuit Court, and has

already been denied once by this Court in the "All Writs" petition

filed on January 9, 2002, and denied on January 15, 2002.

As the Rule 3.850 court found, this precise issue was

233, 237 (Fla. 1999), when this Court held that brain scans such as

the one requested by Bottoson have been in existence since at least

as long ago as 1992. Under settled law, a claim that is based upon

"newly discovered evidence" must be brought within one year of the

Court, the time for filing begins to run when the test becomes

(Fla. 2001), the PET/SPECT scan has existed at least since 1995,

and, as the Circuit Court found, should have been raised, at the

latest, in 1996. This issue is time-barred under settled Florida

law, and the Circuit Court’s denial of relief should be affirmed in

all respects.

trial, and who testified about his findings at the prior Rule 3.850

hearing.

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To the extent that this claim includes a claim that Bottoson

was denied a full and fair hearing as a result of the Circuit

Court’s ruling denying the motion to transport for the PET/SPECT

necessary, the Circuit Court denied relief on this issue on January

7, 2002, and then denied Bottoson’s motion for rehearing of that

more than a repetitive motion for rehearing, which was properly

denied by the Circuit Court. Bottoson is not entitled to any

relief.

Alternatively and secondarily, even if this claim was not

procedurally barred, Bottoson would not be entitled to any relief

because he has not met the threshold requirements for establishing

a particularized need for the PET or SPECT scan as required by the

V. THE "CLARIFICATION" OF DR. KIRKLAND’S TESTIMONY

On pages 48-49 of his brief, Bottoson argues that he is

entitled to relief based upon a January 10, 2002, affidavit of Dr.

Robert Kirkland in which that individual disagrees with certain

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collateral proceeding trial court found this claim procedurally

barred, stating:

... it is not necessary to reach the merits of Mr.

Bottoson’s contentions, since this claim is procedurally

barred. Mr. Bottoson could have filed a timely motion for

rehearing in either of those courts [the Florida Supreme

Court and the Eleventh Circuit Court of Appeals] alleging

an error interpreting Dr. Kirkland’s testimony. He did

not. This Court does not review for error the decisions

of either the Supreme Court of Florida or the Eleventh

Circuit Court of Appeals.

Court found, and, moreover, is time-barred because it is untimely

by many years. This claim is not a basis for relief.

Based upon the foregoing arguments and authorities, there is

no basis in fact or law for any of the relief Bottoson seeks. The

issues are not complex, and were thoroughly addressed by the

Circuit Court. There is no basis for a stay of execution, or any

other relief. It is time for Bottoson’s sentence to be carried out.

Respectfully submitted,

ROBERT A BUTTERWORTH

ATTORNEY GENERAL

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

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(386) 238-4990

Fax # (386) 226-0457

I HEREBY CERTIFY that a true and correct copy of the above has

this day of January, 2002.

Of Counsel

This brief is typed in Courier New 12 point.

KENNETH S. NUNNELLEY

ASSISTANT ATTORNEY GENERAL