Petitioner,

Respondents.

________________________________/

his undersigned counsel, and seeks to invoke this Court's All

Writs Jurisdiction pursuant to Art. V, § 3(b)(1), Fla. Const.

In support thereof, Mr.Bottoson would show:

1. The Governor of Florida signed a death warrant for

Mr. Bottoson on November 19, 2001.

2. Counsel for Mr. Bottoson was appointed on December

3, 2001.

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3. Pursuant to the trial court’s order, Mr. Bottoson

filed a Motion to Vacate Judgment and Sentence and

Request for Evidentiary Hearing and Stay of

Execution, under Fl.R.Crim.P. Rule 3.850, on January

11, 2002.

4. One of the claims raised by Mr. Bottoson asserts that

his execution would violate the federal and state

constitutions because Mr. Bottoson is mentally

retarded.

5. The United States Supreme Court has granted

certiorari in Atkins v. Virginia, No. 00-8452, to

determine whether executing individuals with mental

retardation violates the Eighth Amendment to the U.S

Constitution.

6. In Florida, the execution of mentally retarded

individuals has been addressed by Fla. Stat. §

921.137 (2001). This statute prohibits the

imposition of a death sentence upon a mentally

retarded defendant. However, the statute includes

the following limitation: "(8) This section does not

apply to a defendant who was sentenced to death prior

to the effective date of this act." The effective

date for the statute was June 12, 2001.

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7. Consequently, Mr. Bottoson filed a Motion to Declare

a Provision of Fla. Stat. § 921.137 Unconstitutional

on January 15, 2002. (Attached as Appendix A).

8. The trial court, while declining to rule on the issue

of the statutory provision’s unconstitionality at

present, nevertheless set an evidentiary hearing to

address the issue of Mr. Bottoson’s status as a

mentally retarded individual. (Order dated January

15, 2002, attached as Appendix B).

9. Mr. Bottoson asserts that the trial court’s ruling,

setting an evidentiary hearing on mental retardation

does not conform to the essential requirements of law

as set forth in Fla. Stat. § 921.137 (1) and (4).

10. First, the statute, in subsection (1), requires that

the Department of Children and Family Services adopt

rules to specify the standardized intelligence tests

to be utilized in determining whether a defendant

will be included in the class which is protected by

the legislation. The trial court disregarded the fact

that, to date, no such rules have been promulgated.

Therefore, the trial court is requiring Mr. Bottoson

to proceed without adequate notice of what an

adequate showing of mental retardation entails.

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11. Second, the statute, in subsection (4), requires that

certain procedural safeguards be in effect to satisfy

the requirements of due process as afforded all

capital defendants. (see Ake V Oklahoma, 470 U.S. 68

(1985)) Again, the trial court’s order disregards

these requirements and instead requires Mr. Bottoson

to proceed without the due process afforded other

capitally convicted defendants asserting mental

retardation.

12. Furthermore, the trial court’s order will cause

"irreparable injury for which appellate review will

be inadequate." Trepal v. State, 754 So.2d 702, 707

(Fla. 2000). Mr. Bottoson will be forced to proceed

with a hearing without notice of the required showing

and without adequate procedural safeguards, and will

then be burdened with the outcome of such a illadvised

proceeding.

13. Mr. Bottoson would have to reassert this issue at a

statutorily sound proceeding without the ability to

have new standardized intelligence tests administered

due to practice effect i.e. rising test scores over

multiple administrations of the test. Thus, the trial

court’s determination on mental retardation will be a

finding of fact binding this Court and subjecting Mr.

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Bottoson to potential procedural "double jeopardy".

WHEREFORE, the Petitioner respectfully requests that this

Court issue this writ directing that the trial court rule on

the applicability of Fla. Stat. § 921.137 to Mr. Bottoson and

that a stay of the proceedings and the execution be entered

pending the resolution of this petition and all relief

requested herein.

I HEREBY CERTIFY that the foregoing has been furnished by

U.S. Mail, first-class, prepaid/facsimile transmission/federal

express/hand delivery to all counsel of record, on this 15th

day

of January, 2002.

__________________________

Peter J. Cannon

Florida Bar No. 0109710

Assistant CCRC

__________________________

Elizabeth A. Williams

Florida Bar No. 0967350

Staff Attorney

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE

3801 Corporex Park Drive, Suite

210

Tampa, Florida 33619

813-740-3544

Counsel for Mr. Bottoson

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Copies furnished to:

Honorable Anthony H. Johnson

Circuit Court Judge

425 North Orange Avenue Rm#1110

Orlando, FL 32801

Kenneth S. Nunnelley and Judy Taylor Rush

Assistant Attorney General

Office of the Attorney General

444 Seabreeze Boulevard, Fifth Floor

Daytona Beach, FL 32118-3951

Chris A. Lerner

Assistant State Attorney

Office of the State Attorney

P.O. Box 1673

415 North Orange Avenue

Orlando, FL 32802-0613

Linroy Bottoson, DOC#078079

Florida State Prison

P.O. Box 181, Hwy 16 West

Starke, FL 32091-0747

Commission on Capital Cases

ATTN: Mary Jean

402 S. Monroe Street

Tallahassee, FL 32399-1300

Susan Schwartz

Assistant General Counsel

Florida Department of Corrections

2601 Blair Stone Road

Tallahassee, FL 32399-2500

The Honorable Thomas D. Hall

Clerk, Supreme Court of Florida

Supreme Court Building

ATTN: Tanya Carroll

500 South Duval Street

Tallahassee, FL 32399-1927

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I hereby certify that a true copy of the foregoing was

generated in Courier New, 12 point font, pursuant to Fla. R.

App. 9.210.

____________________________

Peter J. Cannon

Florida Bar No. 0109710

Assistant CCRC

____________________________

Elizabeth A. Williams

Florida Bar No. 0967350

Staff Attorney

CAPITAL COLLATERAL REGIONAL

COUNSEL-MIDDLE REGION

3801 Corporex Park Drive

Suite 210

Tampa, Florida 33619

(813) 740-3544

Counsel for Mr. Bottoson