ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iv

CLAIM I

A. The focus of the Florida Statute . . . . . . . . . 3

B. The relevant evidence . . . . . . . . . . . . . . 4

1. Intellectual functioning . . . . . . . . 4

2. Adaptive Functioning . . . . . . . . . . . . . 6

CLAIM II

CLAIM III

CLAIM IV

CLAIM V

iii

CONCLUSION AND RELIEF SOUGHT . . . . . . . . . . . . . . . 10

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 12

CASES

iv

Bowles v. State, 26 Fla. L Weekly S659,(Fla. 2001) . . . . 2

Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989) . . . . 1

Penry v. Lynaugh, 492 U.S. 302,331 (1989) . . . . . . . . . 1

Willacy v. State, 696 So.2d 693 (Fla. 1997) . . . . . . . . 2

STATUTES

R.R.S. Neb. Section 28-105.01(3) (1998) . . . . . . . . . . 4

N.M. Stat. Ann. Section 31-20A-2.1(A) (1991) . . . . . . . 4

(if the Court rules that the execution of the mentally

retarded violates the Eighth Amendment, then there could be no

"default" of such a claim and it would have to be considered

on collateral review.). This claim is based in part on the

existence of a new statute barring the execution of the

mentally retarded which did not exist during prior actions

herein. Son Fleming had also never raised mental retardation

before Georgia enacted such a statute. See Fleming v. Zant,

259 Ga. 687, 386 S.E.2d 339 (1989)(execution of mentally

retarded persons violated the Georgia prohibition against

cruel and unusual punishment).

1

In its response to Claim I of Mr. Bottoson’s Initial Brief,

Appellee states that relief on this claim should be denied for

the following reasons:

- "[the Circuit Court’s finding that Mr. Bottoson is not

mentally retarded] is supported by competent substantial

- "mental retardation as a bar to execution . . . is

procedurally barred because it could have been raised on

it would violate the Eighth and Fourteenth Amendments to have

some defendants’ claims assessed in a critical stage, trial

setting, and others in a constitutional-rights bereft postconviction

setting. see Appellant’s Initial Brief, at 13-14.

(Fla. 2001); Willacy v. State, 696 So.2d 693 (Fla. 1997).

there aren’t any rules, okay?"). Even the State’s expert, Dr.

McClaren, stated that the Florida mental retardation statute

was "a little vaguer(sic) than my understanding of mental

retardation." Id., at 141.

2

None of these reasons for denial are supported by the record or

current law.

The Appellee argues that the trial court’s finding that Mr.

Bottoson is not mentally retarded is supported by competent

substantial evidence and, therefore, should not be subject to de

novo review by this Court. However, the record that was

produced without providing Mr. Bottoson "critical stage"

this Court has repeatedly held that only when the trial court

applies the correct rule of law will this Court conduct

present case, the trial court first acknowledged that the

"rules" for determining mental retardation had not been

ruling about Mr. Bottoson’s status as a mentally retarded

Bottoson’s verbal IQ scores have slightly risen over a fifty

year period, while his performance IQ scores have remained

dreadful, because of years and years of practice with writing

and reading. see Appellant’s Initial Brief, at 22-24.

3

individual. Finally, the testimony credited by the lower court

addressed current functioning only, contrary to the Florida

statute. In the face of the above noted admission by the trial

court, Mr. Bottoson contends that it is inconceivable that

Appellee now asserts that the correct rule of law was applied

which precludes de novo review.

A. The focus of the Florida Statute: "conception to age 18"

The primary difference between Appellee’s and Mr. Bottoson’s

position is where the expert should focus, time-wise, to

determine mental retardation. Appellee asserts that the focus

the developmental years, before age 18. Focusing on today, like

the lower court did, favors Appellee because Mr. Bottoson’s full

scale IQ scores are higher today than they were during the

But the Florida statute rejects Appellee’s and the lower

retardation manifest before age 18, and some looking only at

current functioning–was noted in the Brief of the States of

Alabama, Mississippi, Nevada, South carolina, and Utah as

United States Supreme Court Case No. 00-8452. These statutes

"significantly sub-average intellectual functioning existing

concurrently with deficits in adaptive behavior." Id. at 7.

This is Appellee’s and the lower court’s focus in this case,

but the Florida statute is different from New Mexico’s and

Nebraska’s statute.

4

Nebraska (R.R.S. Neb. Section 28-105.01(3) (1998) and in New

But Florida (and other states) say that for sub-standard IQ

and adaptive behavior deficits to equal mental retardation and

bar execution the two must have "manifested during the period

from conception to age 18." Thus, that is where to look, the

lower court did not do so, and Appellee’s position must be

rejected.

B. The relevant evidence

1. Intellectual functioning

Dr. Dee is the only witness below who focused on the

developmental years before age 18. Thus his is the only

relevant testimony. Appellee’s uncharitable comments about Dr.

Dee in his Brief are perplexing inasmuch as Appellee’s counsel

stated below that he was well acquainted with this expert’s

5

Dr. Dee’s testimony is set out in Appellant’s brief and will

not be repeated here, but a couple of responses to the State’s

discussion of IQ scores are required. Appellee incorrectly

asserts that the Terman score of 77 when Petitioner was 12 years

old is insignificant. First, Appellee says that Dr. Dee did not

know what the Terman was; second, Appellee says that we do not

know what it is. Dr. Dee knew well enough, and we know

absolutely–the Terman was the state of the art intelligence test

in 1951.

First, Dr. Dee relates his understanding of what the Terman

was:

Dr. Binet put together a very large number of tests,

standardized them on various people. People that had

been identified as feeble-minded and other people that

head been identified as clever or average or whatever,

okay. This was the beginning of the intelligence

testing.

In this country, it was already underway and Dr.

Terman, at Stanford University, translated the Binet

scales and re-standardized them on the American

population. And since the professor was at Stanford,

it was called the Stanford-Binet IQ test, and that was

the first one in common use.

.......

test of intelligence but "knows little about it. (R417)." The

Leiter test performed in 2001 resulted in a 76 IQ, which was

brought out by Appellee during cross-examination. Dr. Dee

stated that while he did not "know an awful lot about it," id.

at 113, he knew that it was a "standardized intelligence

test," id. 113, which "places more emphasis on nonverbal

things than does the Wechsler." Id. at 115. Appellee also

complains that Dr. Dee cannot possibly diagnose mental

retardation when other currently administered tests show an IQ

of 84, but this totally ignores Dr. Dee’s testimony which

appropriately focused on the developmental years and explained

how Mr. Bottoson’s verbal IQ rose slowly while in prison but

his performance IQ has remained static.

6

Terman test, but since Mr. Terman re-standardized it

..... What is reported in the school records is a

This shows a very sophisticated knowledge and understanding of

the history and function of IQ testing, which neither of

Appellee’s expert’s possessed. See Appellant’s Initial Brief,

2. Adaptive Functioning

The record also indicates that Mr. Bottoson displayed

significant deficits in adaptive behavior during his

developmental years and the years prior to his incarceration.

The State’s own expert, Dr. Harry McClaren, acknowledged these

7

Prichard, insisted that the deficits displayed before age 18

were not relevant to determining Mr. Bottoson’s mental

retardation. Instead, Dr. Prichard was intent on assessing Mr.

Bottoson’s ability to adapt his behavior to the requirements of

life on death row. To accomplish this assessment, Dr. Prichard

conducted a phone interview with a prison guard. The instrument

he used, the Vineland Adaptive Behavior Scale, has been

standardized for children ages 0 to 18 years 11 months.

Appellee would now have this Court find that such an assessment

is dispositive as to Mr. Bottoson’s adaptive behavior. Clearly,

the legislature did not intend for such a result.

When the legislature enacted and the governor signed Fla.

Stat. § 921.137 to protect mentally retarded individuals, they

included an evidentiary requirement that these individuals

shoudl manifest signs of mental retardation prior to the age of

18. Clearly that same developmental time period should be the

focus of the Court’s de novo review in this case.

8

In the answer brief, Appellee asserts that Mr. Bottoson is

not entitled to an evidentiary on his claim of newly discovered

evidence of brain damage. However, the answer brief merely

states the opinion of the Appellee concerning the newly

about whether Mr.

Bottoson’s uncontroverted brain damage is newly discovered is

not

dispositive of the issue. The only means to a proper

determination

of this claim is through an evidentiary hearing. Only then can

the

due diligence of counsel be properly assessed. Furthermore, the

issue is not whether the uncontroverted evidence of brain damage

"Existed", but rather whether counsel exercised due diligence.

Since due diligence is a matter of factual dispute, it must be

decided at an evidentiary hearing.

9

Appellee states that this claim is procedurally barred

because the PET/SPECT scans have been in existence since 1992

and "could have been discovered through due diligence." This

assertion misstates the correct law in the determination of "due

diligence." The question is not whether the PET/SPECT scan

existed, but rather whether, through due diligence, counsel

should have recognized the applicability of a PET/SPECT scan in

Mr. Bottoson’s case. In order to assess the "due diligence"

requirement of Jones, it is necessary to conduct an evidentiary

to determine what notice counsel had of the viability of a

PET/SPECT.

In reply to the State’s Answer, Mr. Bottoson relies on the

argument set forth in his Initial Brief.

10

In reply to the State’s Answer, Mr. Bottoson relies on the

argument set forth in his Initial Brief.

For all the reasons discussed herein, Mr. Bottoson

respectfully urges this Honorable Court to grant relief.

furnished by United States Mail, first-class postage prepaid,

to all counsel of record on January_____, 2002.

Peter J. Cannon

Florida Bar No. 109710

Assistant CCRC

Elizabeth A. Williams

Florida Bar No. 0967350

Staff Attorney

CAPITAL COLLATERAL REGIONAL

COUNSEL - MIDDLE REGION

3801 Corporex Park Drive

Suite 210

Tampa, FL 33619-1136

(813) 740-3544

11

COUNSEL FOR APPELLANT

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

12

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