sentencing statute, which assigns solely to the trial judge the responsibility for

making the findings of fact which are necessary to subject a defendant to a death

sentence, does not contravene the Sixth Amendment's jury-trial right as made

CAPITAL CASE

DEATH WARRANT

SIGNED

EXECUTION SET FOR

IN THE SUPREME COURT OF FLORIDA

Case Nos. SC02-128 & SC02-___

Mr. Bottoson’s case presents two issues pending before the United States Supreme Court,

applicable to the States through the Fourteen Amendment's Due Process Clause.

The question presented is whether Walton should be overruled in light of this

"for the legislature to remove from the jury the assessment of facts that increase the

prescribed range of penalties to which a criminal defendant is exposed" (id. at 490

(internal quotation marks omitted) violates the defendant's Sixth Amendment right

to jury trial.

12/4/01)(www.tscaoc.tsc.state.tn.us).

Supreme Court, in a practical sense, in terms of ruling on the issue, because they’re going to

thinking about this issue" and that this case "will go to the people who are considering this

The lower court then did not address the tough legal questions, going instead directly to

the question of whether Mr. Bottoson is mentally retarded. Petitioner explains in his brief before

this Ccourt that the process afforded by the lower court for resolving the "fact" of mental

retardation violated fundamental notions of notice and due process. Simply compare the

process Petitioner received to what is provided by statute for other persons at sentencing now,

at a critical stage of the capital trial–qualified attorneys, adequate funding, discovery, the duty of

the mental retardation issue. The type of process that is provided will often determine the

outcome, especially in hotly contested matters, as here.

For example, on December 12, 2001, Sherman Elwood Skipper was found to be mentally

2

execution of the mentally retarded, this reflects an evolved standard of decency which would

prohibit the execution of any mentally retarded persons in the state; and 2.) what process is due for

retarded by a trail court judge in North Carolina. Mr. Skipper, who had been on death row for

years, was then granted a life sentence under North Carolina’s new mental retardation statute

process, he was expressly found not to be mentally retarded by the North Carolina Supreme

concurring). In adversarial proceedings, process is a life or death matter.

suggests that a majority of this Court, while not deciding the issues presented, believe that the

petitioner has a substantial probability of success.") (Scalia, J., concurring in grant of stay).

3

Petitioner believes the execution date in this case will be stayed by the United States Supreme

when the Court denied King’s request for a stay, and counsels in favor of awaiting the decision in

questions like: 1.) whether a defendant who shows that he or she is more likely than not

retarded can still be executed (the Florida mental retardation statute, requiring clear and

convincing proof, would allow such an execution, and Petitioner argues that this is too high a

standard, and unconstitutional.); 2.) whether a determination of mental retardation can be made

in a post-conviction court under post-conviction procedures, or requires trial court, critical

stage, constitutionally guaranteed protections; 3.) whether a Terman IQ test administered in

1951 during a persons developmental years ought to be considered when determining mental

retardation, and whether a Vineland test administered to a prison guard to determine present

adaptive function ought not to be considered (matters which several amici have expressed an

interest in addressing before this Court, but who cannot under current warrant conditions.)

On critical questions like these,

"Without adequate study there cannot be adequate reflection; without adequate

reflection there cannot be adequate discussion; without adequate discussion there

cannot be that fruitful interchange of minds which is indispensable to thoughtful,

437, 458-459 (1959) (Frankfurter, J., dissenting).

4

Thus, petitioner requests that the Court enter an Order staying the scheduled execution and

continuing oral argument.

A. Mental Retardation

This case presents this Court with several questions that will effect not only Mr. Bottoson,

but the death-sentenced persons in Florida who have mental retardation. This Court must decide

whether the prohibition on the execution of persons with mental retardation contained in section

921.137, Florida Statutes, applies to persons sentenced to death before the statute’s effective date.

Alternatively, this Court must decide whether the Eighth Amendment to the United States

5

Constitution, and/or Article I, section 17 of the Florida Constitution, bars the execution of a person

with mental retardation. If the answer to any of these questions might be yes, this Court must also

decide what procedures must be used by trial courts when they decide whether a man or woman

is ineligible for the death penalty because he or she has mental retardation.

Regarding the question whether the enactment of laws in Florida, 17 other States, and the

federal government barring the execution of persons with mental retardation shows that under the

"evolving standards of decency" such punishment violates the Eighth Amendment, this Court may

retarded. There, as here, expert testimony was presented on both sides of the question in the trial

court. The Virginia Supreme Court discounted Atkins’ testimony and credited the State’s.

Nevertheless, the Supreme Court granted certiorari to decide the substantive federal constitutional

Florida constitution–first define the right, then provide the process.

"The procedures by which the facts of the case are determined assume an importance as

great as the validity of the substantive rule of law to be applied. And the more important the rights

6

care and deliberation that preceded the adoption of Rule 3.851 following this Court’s decision in

determining whether a death sentenced person who may have mental retardation may or may not be

put to death surely calls for deliberation of more than a few days, if arriving at the correct process

to be followed when determining whether someone is competent to proceed in post-conviction

proceedings took years.

This Court has held that a stay of execution is proper when the defendant presents "enough

2d 698, 699 (Fla. 1985). This Court has "a valid basis for exercising jurisdiction" and granting a

stay of execution so that the petitioner’s claims may be heard before they are mooted by an

sentencing scheme in Mr. Bottoson’s case, consider the following. Justice O'Connor observed in

[r]elying in part on our decisions rejecting challenges to Florida’s capital

sentencing scheme, which also added that "‘the Sixth Amendment does

not require that the specific findings authorizing the imposition of the

7

curiam)).

Florida decisions in order to prevail. The Court found he could not do so:

The distinctions Walton attempts to draw between the Florida and

Arizona statutory scheme are not persuasive. It is true that in Florida the

jury recommends a sentence, but it does not make specific factual

findings with regard to the existence or mitigating or aggravating

circumstances and its recommendation is not binding on the trial judge.

A Florida trial court no more has the assistance of a jury’s findings of

fact with respect to sentencing issues than does a trial judge in Arizona.

[t]he same consideration that supports a constitutional entitlement to a

trial by a jury rather than a judge at the guilt or innocence state–the right

to have an authentic representative of the community apply its lay

perspective to the determination that must precede a deprivation of

dissenting).

8

circumstances upon which the State would attempt to establish his eligbility for the death penalty.

The judge, and not the jury, made the specific findings authorizing imposition of the death penalty.

There was no unanimous jury finding regarding any aggravating factor. The judge, and not the jury,

was assigned and carried out the responsibility for determining whether an aggravating circumstance

existed. Absent that finding, Mr. Bottoson was ineligible for the death penalty, and the sentence

provided under Florida law was life imprisonment. The jury in Mr. Bottoson’s case were not told

that the existence of any aggravating circumstance had to be agreed upon by all jurors. Their nonbinding

recommendation was not unanimous.

With a stay certain, and such weighty issues pending in this Court and the Supreme Court,

there is no reason to proceed in haste.

WHEREFORE, Petitioner/Appellant LINROY BOTTOSON, through counsel, respectfully

requests that this Court enter an Order staying his execution, and continuing the briefing schedule

and oral argument in this case to allow for more thorough argument and deliberation.

Respectfully submitted,

___________________________

Fla. Bar No. 0578533

Law Offices of Mark E. Olive, P.A.

320 West Jefferson Street

Tallahassee, Florida 32301

850-224-0004

850-224-3331 (facsimile)

Tim Schardl

Sacramento, California 95822

(916) 498-6666

(916) 498-6656 (facsimile)

9

______________________________

Assistant CCRC

Fla. Bar No. 109710

Assistant CCRC

Fla. Bar No. 651443

3801 Corporex Park Drive, Suite 201

Tampa, Florida 33619

813-740-3544

813-740-3554 (facsimile)

10

I hereby certify that a true and correct copy of the foregoing Motion to Continue Oral

Argument and Application for Stay of Execution is being furnished by facsimile transmission to

counsel for Respondent, Assistant Attorney General Kenneth Sloane Nunnelley, Office of the

of January, 2002.

This motion was prepared using Times New Roman 14 point font.

____________________________

PETER J. CANNON

ERIC PINKARD