IN THE SUPREME COURT OF FLORIDA

LINROY BOTTOSON,

Appellant, CASE NO. SC02-128

v.

STATE OF FLORIDA,

Appellee.

/

STATE’S RESPONSE TO MOTION TO CONTINUE BRIEFING

SCHEDULE AND ORAL ARGUMENT, AND FOR STAY OF EXECUTION

Comes now the State of Florida, and responds as follows to

Bottoson’s motion to continue briefing schedule and oral

argument, and for a stay of execution. For the reasons set out

below, that motion should be denied in all respects.

Bottoson claims that this Court should indefinitely delay

the lawful execution of his sentence based upon the assertion

that his "case presents two issues which are pending before the

United States Supreme Court." Motion, at 1. From that assertion,

which is disputed in all respects by the State, Bottoson seeks

a stay of execution.

With respect to the claim that Bottoson is mentally

retarded, the Circuit Court of Orange County heard the testimony

on the issue, evaluated the credibility of the witnesses, and

rejected the claim of mental retardation, finding that

1The record on appeal from that proceeding has been filed

with the court.

2Bottoson’s "Atkins" argument could have been made with

respect to the McCarver case last year. However, certiorari in

McCarver v. North Carolina was dismissed as improvidently

granted after action by the North Carolina legislature mooted

the case. McCarver v. North Carolina, 122 S.Ct. 22 (2001).

Reports indicate that similar legislation (HB957) has been

introduced in the Virginia General Assembly. See, law.com,

"Virginia Proposal May Put Brakes on Supreme Court Capital Case"

(Jan. 24, 2002).

Bottoson’s expert was incredible. Order, at 9.1 If Bottoson is

not mentally retarded, as the Circuit Court found, the

constitutional issue pending before the United States Supreme

Court in Atkins v. Virginia does not, contrary to Bottoson’s

claim, come to fruition. This Court should not delay this case

based upon mere speculation about the effect of a United States

Supreme Court proceeding that will not even impact Bottoson. The

United States Supreme Court is well able to enter the orders it

deems necessary -- this Court should not delay addressing this

case, especially in light of the fact that the defendant in this

case is not mentally retarded in the first place.2

With respect to the United States Supreme Court’s grant of

certiorari in Ring v. Arizona, and the stay entered by that

Court on January 23, 2002, in the Amos King case (Motion, at 3

n.2), it is significant that Bottoson raised an issue based upon

Apprendi v. New Jersey for the first time in his January 11,

2002, "Consolidated Petition for Writ of Habeas Corpus and

Motion to Reopen 3.850 Appeal." Equally significant is the fact

that Bottoson

made no mention of the grant of certiorari in Ring until he

filed his corrected "Consolidated Petition" on January 17, 2002.

Obviously, Bottoson was not concerned about an "Apprendi error"

until certiorari was granted in Ring -- he never raised that

claim before, and it is procedurally barred at this late stage

of these proceedings because it could have been but was not

raised at trial, on direct appeal, or in any of Bottoson's prior

collateral proceedings. Bottoson is not entitled to a delay in

the disposition of his case before this Court, and delay in the

execution of a lawful sentence, based upon mere speculation

about what the United States Supreme Court might or might not do

in a particular case or circumstance.

This Court decided the Apprendi issue in Mills v. Moore,

786 So. 2d 532 (Fla. 2001), and concluded that Apprendi had no

effect on Florida’s death penalty statute. The United States

Supreme Court denied certiorari on that claim in that case.

Mills v. Moore, 121 S.Ct. 1752 (2001). Of course, it is well

settled that a grant of certiorari has no precedential effect,

Ritter v. Smith, 811 F.2d 1398, 1404-05 (11th Cir. 1987), cert.

denied, 483 U.S. 1010 (1987), and it makes no sense for Bottoson

to suggest that this Court should act in the place of the United

States Supreme Court. This Court should deny Bottoson’s motion,

and allow this case to proceed as scheduled. The United States

Supreme Court can take what action it deems necessary at the

appropriate time, but should have the benefit of this Court’s

disposition of the issues.

WHEREFORE, the State submits that Bottoson’s motion should

be denied in all respects, and that briefing and argument of

this case should proceed as scheduled.

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

(386) 238-4990

Fax # (386) 226-0457

CERTIFICATE OF SERVICE

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

has been furnished by U.S. Mail to: William Jennings, CCRCMiddle,

Peter Cannon, CCRC - Middle, Eric Pinkard, CCRC -

Middle, CCRC-Middle, Office of the Capital Collateral Regional

Counsel, 3801 Corporex Park Dr., Suite 210, Tampa, FL 33619,

Mark E. Olive, 320 West Jefferson St., Tallahassee, FL 32301 and

Tim Schardl, 801 K Street, 10th Floor, Sacramento, California

95814 on this day of January, 2002.

Of Counsel