____

D. Todd Doss

Florida Bar No. 0910384

Hunt & Doss

P.O. Box 3006

Lake City, FL 32056

(386) 758-6800

On behalf of Mr. Heath

3

parameters of interlocutory appeals in collateral proceedings noting that it accepted

jurisdiction under Article V, Sec. 3 (b)(1), Fla. Const. This Court further held that:

... to obtain relief an appellant must establish that the order compelling

discovery does not conform to the essential requirements of law and

may cause irreparable injury for which appellate review would be

inadequate.

relief, and requests that this Court accept jurisdiction over this matter under Article

V, Sec. 3 (b)(1) of the Florida Constitution.

In light of the Office of the Capital Collateral Counsel for the Northern

Region’s (CCC-NR), elimination, effective July 1, 2003, D. Todd Doss, Mr.

Heath’s designated attorney within CCC-NR, was appointed as registry counsel

pursuant to a Motion for Appointment of Registry Counsel filed by the State of

continue to represent him and seek the appointment of counsel.

The trial court held a hearing on the motion the same day it was filed. The

trial court appointed Mr. Doss to represent Mr. Heath. At the hearing, Mr. Doss

4

informed the trial court that he had requested to be appointed to ten of the twelve

clients that he was designated as lead counsel for while employed at CCC-NR. The

trial court on July 7, 2003 executed an order without objection from either the

Assistant Attorney General or the Assistant State Attorney appointing Mr. Doss

Appendix Tab 2. The trial court then executed an Amended Order Granting State’s

Tab 3.

Subsequently, the Department of Financial Services refused to issue a

contract to Mr. Doss, as required by statute, to represent Mr. Heath. The

Department of Financial Services, the Office of the Attorney General, and the

Office of the State Attorney all chose not to move the trial court to rehear,

reconsider, vacate, or appeal the order within the prescribed time periods.

Mr. Heath filed a Motion to Compel Contract or in the Alternative for a Rule

filed after attempting to persuade the Department to issue a contract, without

success, from early July 2003 until the date the motion was filed. The Office of the

Attorney General and the Office of the State Attorney filed a Suggestions in

5

the trial court and within the pleading acknowledged they did not have standing to

address the appointment of counsel issue. On October 1, 2003, the Department of

Financial Services filed a responsive pleading on the issue entitled Department of

Financial Services Special Appearance and Response to Defendant’s Motion to

hearing, the trial court removed Mr. Doss as Mr. Heath’s counsel and appointed

alternate counsel as reflected by the trial court’s Order Denying Defendant’s

Motion for Continuance and to Compel Contract or for Rule to Show Cause dated

Thus, the issue presented is whether the circuit court deprived Mr. Heath of

his constitutional right to due process and his constitutional and statutory right to

effective representation by counsel.

1994) are as follows:

Heath was charged with the first-degree murder and armed robbery of

Michael Sheridan in Gainesville, Florida, in May 1989. Heath was also

charged with conspiracy to commit forgery, conspiracy to commit uttering a

forgery, and seven counts of forgery and uttering a forgery based upon

purchases made the following day with Sheridan's credit cards at a

Gainesville shopping mall.

6

The evidence at trial revealed that Heath and his live-in girlfriend, Penny

Powell, traveled to the Jacksonville home of Heath's grandmother. After an

argument with Heath, Powell returned to Douglas, Georgia, where she and

Heath lived. Heath and his younger brother, Kenneth, drove to Gainesville to

visit some of Heath's friends. On May 24, 1989, the brothers went to the

Purple Porpoise Lounge in Gainesville where two of Heath's friends worked

as waitresses. Sometime during the evening the brothers struck up a

conversation with Sheridan, a traveling salesman who had come to the lounge

for drinks and dinner. Sheridan bought the brothers a drink and inquired if

they ever got high or had any marijuana. Heath suggested to Kenneth that

they take Sheridan somewhere and rob him; Kenneth agreed. The trio left the

bar in Kenneth's vehicle, which Heath drove to an isolated area of Alachua

County. After parking on a dirt road, all three got out of the car and smoked

marijuana. Heath made the hand motion of a pistol and asked Kenneth, "Did

you get it?" Kenneth retrieved a small-caliber handgun from under the car

seat, pointed it at Sheridan, and told him that he was being robbed. Sheridan

balked at giving the brothers anything. Heath told Kenneth to shoot Sheridan.

When Sheridan lunged at Kenneth, Kenneth shot him in the chest. Sheridan

sat down, saying "it hurt." As Sheridan began to remove his possessions,

Heath kicked him and stabbed him in the neck with a hunting knife. Heath

attempted to slit Sheridan's throat, but was unable to complete the task with

the dull knife and could only saw at Sheridan's neck. Heath then instructed

Kenneth to kill Sheridan with the gun, and Kenneth shot him twice in the

head. The brothers moved the body further into the woods. After returning

to the Purple Porpoise, the brothers took Sheridan's rental car to a remote

area, removed some items, and burned the car.

The next day the brothers used Sheridan's credit cards to purchase clothes,

shoes, and other items at a Gainesville mall. Although Kenneth signed all of

the credit card slips, clerks from the various stores testified about the

purchases made by the brothers and identified Heath in a photo lineup. The

brothers discontinued use of the credit cards when a clerk in an audio store

requested biographical information about Sheridan which Kenneth could not

answer. The brothers returned to Jacksonville and tossed the handgun into

the St. John's River. The handgun was never recovered. Heath eventually

returned to the trailer which he shared with Powell in Georgia.

7

A medical examiner was dispatched to the scene of the murder on May 30,

1989, to examine the body, which was in a moderately advanced state of

decomposition. The examiner estimated that death had occurred three to ten

days earlier and that death was caused by multiple gunshot wounds and a

sharp force injury to the neck.

Several weeks after the murder, Heath was arrested at his trailer for using the

stolen credit cards. Powell granted the officers permission to search the

trailer and her car. The officers discovered some of the clothes purchased in

Gainesville and Sheridan's watch.

Both brothers were indicted for the first-degree murder and armed robbery

of Sheridan. That case was later consolidated with another case where the

brothers were charged with offenses connected with the forgeries of the

credit cards. Kenneth entered into a plea agreement wherein he pled guilty to

the charges and agreed to testify about Sheridan's murder. Kenneth was

sentenced to life imprisonment without eligibility for parole for twenty-five

years for the murder conviction.

Heath's trial commenced on November 5, 1990. The primary evidence linking

Heath to the crime was the testimony of Kenneth, Heath's possession of a

watch which could be traced to Sheridan through its serial number, and

Heath's possession of certain merchandise acquired in Gainesville with

Sheridan's stolen credit cards. The jury found Heath guilty of the first-degree

murder and armed robbery of Sheridan, as well as conspiracy to commit

uttering a forgery, conspiracy to commit forgery, seven counts of forgery,

and seven counts of uttering a forgery. In the penalty phase, the jury

recommended the death penalty by a vote of ten to two. In its sentencing

order, the trial court found two aggravating circumstances: Heath was

previously convicted of second-degree murder; and the murder was

committed during the course of an armed robbery. The trial court found

three mitigating circumstances: that Heath was under the influence of extreme

mental or emotional disturbance, based upon his consumption of alcohol and

marijuana; that Heath demonstrated good character in prison; and that

codefendant Kenneth Heath received a life sentence. The court found that the

aggravating circumstances outweighed the mitigating factors and sentenced

8

Heath to death for the first-degree murder conviction. Heath was also

sentenced as an habitual offender to life imprisonment for the armed robbery

conviction. On the conspiracy to commit forgery and conspiracy to commit

uttering a forgery convictions, Heath was sentenced to six months, with

credit for time served. On each of the seven convictions for forgery and

uttering a forgery, Heath was sentenced to consecutive sentences of ten

years as an habitual offender.

1. The Circuit Court of the Eighth Judicial Circuit, Alachua County,

entered the judgments of convictions and sentences under consideration.

2. On July 12, 1989, an Alachua County grand jury indicted Mr. Heath

for First Degree Murder and Robbery with a Firearm. (R. 23).

3. On July 27, 1989, an information form was filed against Mr. Heath for

three counts of Forgery and Uttering a Forgery, Conspiracy to Commit Forgery,

and Grand Theft. (R. 194-196).

4. On September 13, 1989, an amended information was filed against Mr.

Heath for an additional six counts of Forgery and Uttering a Forgery. (R. 202-

208).

5. On November 5, 1990, the trial court granted a motion to consolidate

the aforementioned information and indictment for trial (R. 193).

6. Mr. Heath's trial was held in Alachua County from November 5, 1990

the trial court overruling his objection to the State’s opening statement; (2) the trial

court admitting victim character evidence; (3) the trial court admitting testimony

regarding Heath’s supposed desire to escape from jail; (4) the trial court excluding

evidence of Heath’s employment; and (5) the trial court excluding Powell’s

testimony regarding a statement made by Heath. The two penalty-phase issues were

(1) the trial court engaged in proportionality review under the guise of considering

the brother’s life sentence as a mitigating factor; and, (2) the jury instruction on

especially heinous, atrocious, and cruel aggravator was unconstitutionally vague.

Heath also contended that the trial court erred in sentencing him as a habitual

offender for the armed robbery conviction and that Florida’s habitual offender

statute is unconstitutional.

9

to November 15, 1990.

7. On November 15, 1990, a jury returned a verdict of guilty on the

charges of First Degree Murder, Robbery with a Firearm, Conspiracy to Commit

Uttering a Forgery, and seven counts of Forgery and Uttering a Forgery. (R.

2158-2161).

8. The jury recommended a sentence of death by a vote of 10-2. (R.

2385).

9. On December 17, 1990, the trial court sentenced Mr. Heath to death.

(R. 2461).

10. On direct appeal, the Florida Supreme Court affirmed Mr. Heath's

10

11. Mr. Heath's filed a "shell" Motion to Vacate Judgments of

Conviction and Sentence With Special Request for Leave to Amend on March 21,

1997.

12. On June 9, 2003, the State of Florida filed their Motion for

Appointment of Registry Counsel. This motion was orally granted at the status

13. On July 7, 2003, the Court entered its order appointing Mr. Doss as

registry counsel, specifically allowing Mr. Doss to exceed the statutory cap of five

registry cases set by § 27.711(9), and setting the time requirements for filing

Defendants Amended Motion for Post-Conviction Relief, the State’s Response, the

14. On August 7, 2003, the Court entered an Amended Order Granting

State’s Motion for Appointment of Counsel, again appointing Mr. Doss as registry

15. On September 19, 2003, Mr. Heath filed a Motion for Continuance

and a Motion to Compel Contract or in the Alternative for Rule to Show Cause.

16. On October , 2003, the State of Florida filed their Suggestions in

11

17. On October 1, 2003, the Department of Financial Services filed the

Department of Financial Services Special Appearance and Response to

18. After hearing, the Court entered its Order Denying Defendant’s

Motion for Continuance and Motion to Compel Contract or for Rule to Show

Mr. Heath, through Mr. Doss, asserts that his right to due process of law has

been violated. The appointment of counsel other than Mr. Doss does not conform

to the essential requirements of law and will cause irreparable injury for which

appellate review would be inadequate in violation of the Fourth, Fifth, Sixth, Eighth

and Fourteenth Amendments to the United States Constitution, and the

corresponding provisions of the Florida Constitutions for each of the reasons set

forth below. Accordingly, Mr. Heath seeks to have the Order Denying Defendant’s

Motion for Continuance and to Compel Contract or for rule to Show Cause

vacated and requests that Mr. Doss be appointed to represent him.

12

acknowledged it has "a constitutional responsibility to ensure the death penalty is

concurrence, two Justices discussed the right to counsel in capital postconviction

in terms of State Due Process. Counsel was characterized as an "essential

difficult. The basic requirement of due process in an adversarial system is that an

accused be zealously represented at "every level"; in a death penalty case such

2d 1162, 1164 (Fla. 1985). The special degree of reliability in capital cases, which

can only be provided by competent, effective and conflict-free representation in

postconviction proceedings, is necessary to ensure that capital punishment is not

imposed in an arbitrary and capricious manner and that no one who is innocent or

who has been unconstitutionally convicted or sentenced to death is executed.

13

that ineffective representation at any level of the capital punishment process will not

be tolerated. The Court felt "constrained to comment on the representation

afforded Peede in these proceedings [appeal from summary denial of motion for

postconviction relief]", which included criticism of the length, lack of

thoroughness, and conclusory nature of the initial brief, and reminded counsel of

"the ethical obligation to provide coherent and competent representation, especially

in death penalty cases, and we urge the trial court, upon remand, to be certain that

that " under section 27.702, each defendant under sentence of death is entitled, as a

statutory right, to effective legal representation by the capital collateral

representative in all collateral relief proceedings." In addition, this Court has found

that an attorney who lacks the necessary resources and/or capital trial experience

will be deemed not competent to continue representation of a death-sentenced

Court has explicitly acknowledged the need for effective representation in capital

14

In fact, this Court adopted minimum standards for certain attorneys litigating

1999). The opinion adopting new rules acknowledged the complexities, convoluted

doctrines of procedural default, and uniqueness of capital law. This Court stated

that under our system of justice, "the quality of lawyering is critical" in capital cases

and acknowledged the Court's "inherent and fundamental obligation to ensure that

lawyers are appointed to represent indigent capital defendants who possess the

experience and training necessary to handle the complex and difficult issues

process requires that Mr. Heath be effectively represented by conflict-free counsel

general due process guarantees afforded a capital postconviction defendant in the

context of Ohio's clemency scheme. 523 U.S. 272 (1998). A majority of the Court

found that the Ohio clemency scheme did not violate due process, however, the

court divided on the issue of the extent of due process rights which attach in capital

Justice O'Connor, along with three (3) other justices held that: "[a] prisoner under a

15

sentence of death remains a living person and consequently has an interest in his

In finding that due process may attach to postconviction proceedings,

postconviction defendant be competent to be executed. Justice O'Connor, relying

on precedent, found that "'[l]iberty interests protected by the Fourteenth

Amendment may arise from two sources -- the Due Process Clause and the laws of

the States.'" 477 U.S. 399, 428, (J. O'Connor concurring in part, dissenting in part)

clear: "[R]egardless of the procedures the State deems adequate for determining

the preconditions to adverse official action, federal law defines the kind of process

a State must afford prior to depriving an individual of a protected liberty or

interest at the time of his execution, Justice O'Connor noted that the Florida Statute

governing postconviction procedures provided for mandatory action by the State.

Similarly, the Florida statute governing appointment of capital collateral

16

counsel is mandatory. § 27.701, Fla. Stat. ("It is the intent of the Legislature . . . to

provide for the collateral representation of any person convicted and sentenced to

death in this state . . ."). The State of Florida has created a right by which Mr.

required. Because Mr. Doss is in the best position to represent Mr. Heath and a

pre-existing attorney-client relationship was present when Mr. Doss was removed

as attorney of record without good cause, Mr. Heath’s right to due process has

been violated.

Mr. Doss was Mr. Heath’s designated counsel at the time of the elimination

and defunding of CCC-NR. This elimination and defunding was touted as a pilot

project, the purpose of which to find the most cost efficient method of providing

effective representation. It was not to be a method of depriving capital defendants

of knowledgeable and qualified counsel in whom they had confidence. Certainly if

the purpose was to close the office with a track record of winning post-conviction

relief and to provide capital defendants with less qualified counsel, the provisions

would be unconstitutional as a violation of due process. Having extended a

statutory right, the State of Florida cannot denigrate that right without regard to due

process.

17

In this instance, the State of Florida seized upon the new statutory provisions

as a vehicle for removing counsel who has the most knowledge of Mr. Heath’s

case, had an existing attorney-client relationship with Mr. Heath, who Mr. Heath

wants to remain on the case and has expressed absolutely no dissatisfaction with

the attorney’s representation of him.

The ill-advised appointment of an attorney other than Mr. Doss deprived Mr.

§ 27.7001, Fla. Stat. (2002); U.S. Const., Amends. 5 & 14. The Florida legislature

intended that the elimination of CCC-NR would be more cost effective and

expedite capital postconviction cases. Removing the attorney who is most familiar

with Mr. Heath’s case and has already spent time working on his case in

preparation of filing an Amended Motion to Vacate Judgments of Conviction and

Sentence with Special Request for Leave to Amend serves neither of these

purposes. The removal of Mr. Doss and appointment of an attorney unfamiliar

with Mr. Heath’s case violated not just Mr. Heath’s right to effective assistance of

counsel, but his due process right to the continuation of the representation. Mr.

Doss has consulted with Mr. Heath on numerous occasions and is quite familiar

of effective assistance of counsel and due process, this Court should not tolerate

such an action and should ensure that Mr. Heath receive the process to which he is

due. In this case, such process includes appointing Mr. Doss to represent Mr.

Heath.

attorney-client relationship determined that the designated counsel needed to be

replaced . This a situation where the State of Florida as a party-opponent, the trial

judge and the legislature are arbitrarily choosing who will and will not be

representing Mr. Heath.

18

has sought to remain on his case. That attorney-client relationship cannot,

This Court has stated that the requirement of due process in an adversarial

system is that an accused be zealously represented at "every level" and that in a

zealous representation is consistency, not the random arbitrary removal of Mr.

Heath’s counsel. Consistency allows for a more effective attorney-client

relationship, prevents expensive duplication of effort, and limits the possibility an

important claim or investigative opportunity is missed. Yet here, the State of Florida

has used the new statute to remove Mr. Heath’s counsel. The trial court’s order has

interfered with Mr. Heath’s right to have the effective assistance of counsel in his

19

postconviction litigation.

The events that transpired in removing Mr. Heath’s attorney demonstrate a

violation of Mr. Heath’s right to due process of law. Mr. Doss was removed from

Mr. Heath’s case without legally sufficient cause or justification. The State did not

oppose Mr. Doss’ appointment as registry counsel pursuant to their Motion for

Appointment of Registry Counsel as no objection was lodged. At the hearing

regarding the appointment of counsel, Mr. Doss informed the trial court he would

possibly exceed the statutory cap of five registry cases and explained the unusual

and extraordinary circumstances surrounding the closure of CCC-NR that justified

exceeding that cap. Yet, the State did not object. The Department of Financial

Services then willfully refused to honor a lawful court order and failed to exercise

any judicial remedy to oppose the order. The State of Florida did not utilize any of

the judicial remedies available to contest either of the orders appointing Mr. Doss

as registry counsel. The Office of the Attorney General and the Office of the State

Attorney elected not to object to Mr. Doss’ appointment at the hearing, not to file a

Motion for Rehearing and/or Reconsideration, not to file a Motion to Vacate or Set

Aside the Order Granting State’s Motion for Appointment of Registry Counsel, or

to appeal the order.

While no Florida case has been found expressly dealing with a defendant’s

20

right to proceed with appointed counsel wherein he has already established an

attorney-client relationship, the Georgia Supreme Court dealt with the issue both in

no right to appointed counsel of his choice and generally the trial court’s decision

222. The Georgia Supreme Court went on to hold that "However, when a

defendant’s choice of counsel is supported by objective considerations favoring

the appointment of the preferred counsel, and there are no countervailing

considerations of comparable weight, it is an abuse of discretion to deny the

came to the court upon a denial of appointment of counsel wherein the trial court

acknowledged the requested counsel’s experience in handling death penalty cases

and long-standing relationship with the defendant; however, the trial court denied

the motion and stated the requested counsel would not be appointed because he

"has a record of antagonizing the Court, the jury, and everyone involved in this type

21

"issue of the extent to which a trial court must consider the reappointment of

lawyers with whom the defendant has already developed a close relationship."

(1977) that a "statement of preference, timely made, is supported by objective

considerations of the consequence here involved, and where there are no

countervailing considerations of comparable weight, it is an abuse of sound judicial

discretion to deny the defendant’s request to appoint the counsel of his

2d 752, 754 (Tex. Crim. App. 1993) by stating:

"Once an accused and an attorney, whether retained or appointed, establish

an attorney-client relationship, that relationship should be protected by law.

(internal citations omitted). With limited exceptions, a trial court may not

remove such an attorney, over the objections of both the accused and

counsel, in the absence of a showing of actual or potential conflict." (citation

omitted).

In Mr. Heath’s case, the trial court arbitrarily decided to remove Mr. Doss

on its own motion. A motion to remove Mr. Doss was not pending. The State of

Florida failed to utilize the proper judicial mechanisms to oppose the appointment

of Mr. Doss. The Office of the Attorney General, the Office of the State Attorney,

22

and the Department of Financial Services did not file a motion to rehear,

reconsider, vacate, set aside, or appeal said order to this Court. Indeed, each of the

aforementioned agents of the State of Florida had the opportunity to contest the

order of appointment a second time when the trial court executed an Amended

Order Granting State’s motion for Appointment of Registry Counsel on August 7,

2003, but failed to do so. The Office of the Attorney General and the Office of the

of Registry Counsel to Mr. Doss’ appointment. If Mr. Heath would have failed to

contest an issue in the same manner as the State has in this instance, he would be

procedurally barred from raising that issue or contesting it after the time for

pursuing his judicial remedies had passed.

Now after undersigned counsel filed a motion to compel the issuance of a

contract by the Department of Financial Services they want to be heard on the

contract issue. Th Department of Financial Services response is dated October 1,

2003, more than three months after the motion for appointment of counsel was

filed, more than two months after the motion was granted without objection, and

almost two months after an Amended Order Granting State’s Motion for

Appointment of Registry Counsel was signed.

This response seems to be based upon the Department’s implicit, albeit

never states that an objection is being made. Instead, the basis for an objection is

merely set forth.

failure to timely file (within ten days of discovery of the basis for disqualification) a

motion to disqualify a biased judge on the bases of judicial statements reflecting

animus made to a newspaper pretrial procedural barred the defendant from

subsequently disqualifying the judge.

23

First, to the extent that the Response is an attempt to object to Mr. Doss’

appointment it is not timely. Mr. Doss notified the Department of Financial Services

in early July of the trial court’s order appointing him as counsel. Mr. Doss

specifically inquired of the contract manager, Terry Catledge, and the Department’s

attorney that filed their Response, Mr. Thurber, whether the Department would be

issuing a contract. To date the Department, the Assistant State Attorney, or the

Assistant Attorney General have not registered an objection to Mr. Doss’

appointment, asked for a rehearing, filed a motion to vacate and set aside the order

of appointment, or appealed this trial court’s ruling to the Florida Supreme Court.

Thus, the State through any of its assorted agencies or agents is barred from

The objection is also barred if it is an attempt to appeal from the circuit

court’s July 7, 2003, order appointing Mr. Doss as registry counsel for Mr. Smith.

24

Thus, the State had either 15 days to file a rehearing or 30 days to file a notice of

appeal. Having registered no objection during either of those time periods, the

State is barred from objecting now nearly 86 days later.

This Court has indicated that "[c]ontemporaneous objection and procedural

1997), this Court found a defendant’s objection untimely when evidence was

received by a judge hearing a post-conviction challenge to a death sentence during

late afternoon proceedings, and the objection to the evidence was registered at the

So.2d — (Fla. July 3, 2003), this Court indicated that a capital defendant

abandoned a challenge to this Court’s direct appeal opinion when his counsel failed

to set forth the challenge in a motion for rehearing. Due process of law requires

that this Court apply the contemporaneous objection and procedural default rules in

this case and remand the case with instructions that the trial court appoint Mr. Doss

as registry counsel and order the Department of Financial Services to issue a

contract to Mr. Doss for the representation of Mr. Heath.

Further, the position set forth in the response filed by the Office of the

Attorney General as to the meaning and application of §27.711(9), Fla. Stat., is

was intended to benefit the capital defendant being provided registry counsel. That

being so, only the capital defendant would have standing to object.

offices are not precluded from assigning more than five cases to attorneys working

in those offices.

25

contrary to the standard construction as revealed by customary practice, and would

render the provision unconstitutional. According to the Assistant Attorney General,

the Assistant State Attorney, and the Department the language that "[a]n attorney

may not represent more than five capital defendants at any one time" means simply

that a criminal defense attorney is prohibited from being involved as the registry

counsel of record in more than five capital cases regardless of where the cases are

Assistant Attorney General, the Assistant State Attorney, and the Department have

tallied the cases that Mr. Doss is "counsel of record" and found that he is counsel

of record in nine capital cases and therefore his appointment to represent Mr. Heath

in the Response was the recognized construction of §27.711(9), and if the State has

standing to object, the provision would be unconstitutional in violation of due

process. A perusal of this Court’s online docket establishes that Assistant

Attorney General Cassandra Dolgin is counsel of record in the Florida Supreme

that Assistant Attorney General Dolgin’s load is low. For example, Kenneth

Nunnelley is listed as counsel of record in this Court in 16 active cases; Sandra

Jaggard is listed as counsel of record in this Court in 14 active cases; Charmaine

Millsaps is listed as counsel of record in this Court in 11 active cases; Curtis

French is listed as counsel of record in this Court in 10 active cases; Carol Dittmar

is listed as counsel of record in this Court in 9 active cases. This tally does not

include additional cases pending in federal court or in the circuit court.

26

represents the State in additional cases, pending either in circuit court or in federal

court. Obviously, the State of Florida has determined that it is beneficial to the

State to have as its counsel in capital cases those individuals, who specialize in

capital cases and handle many more than five capital cases at one time. For the

State to use the five case limit as a sword stripping a capital defendant of

knowledgeable and qualified counsel, creates an

unlevel playing field that provides the State with a distinct advantage. Such an

unlevel playing field offends the constitutional guarantee of to fundamental fairness.

can compel one side in a legal bout to abide by the Marquis of Queensbury’s rules,

while the other fights ungloved."). The State cannot be permitted to choose both

its own counsel and counsel for the defense, using criteria for the defense counsel

that it rejects for its own counsel.

27

Presumably, the five case provision was adopted to benefit the capital

defendant. It was designed to make sure that the appointed lawyer has the time

necessary to undertake a capital case. Since it is a provision extending a legal

protection to the capital defendant, it is for the capital defendant to either exercise

that right or waive it. This is not an unusual concept. The constitutional right to

counsel is a right that the criminal defendant alone can either exercise or waive.

this provision against the wishes of the capital defendant provides the State with the

ability chose, or at least veto, its adversary. A capital defendant is not given the

opportunity to veto the State’s representative in a criminal case. This Court

addressed the limitation imposed upon a criminal defendant’s right to disqualify a

Court indicated that a criminal defendant could not disqualify the assigned state

otherwise on this issue would bar many trial prosecutors - - who may be the most

qualified and best prepared advocates for the State - - from representing the State

The position advocated by the State in their tardy and untimely challenge to

undersigned counsel’s appointment violates due process. Just as this Court

28

prepared advocate for the State," the State must be precluded from depriving a

capital defendant of "the most qualified and best prepared advocate" for the

defense. Clearly, Mr. Heath has been deprived of due process by the actions of the

State of Florida and the trial court, by the removal of Mr. Doss as his counsel,

contrary to his wishes.

that this Court vacate the order appointing Mr. Harper and appoint Mr. Doss to

represent him.

Extraordinary Relief has been furnished by U.S. Mail, priority mail to the Clerk of

Court and by United States Mail, first class postage prepaid to all counsel of

record on November 7, 2003.

This is to certify that the Initial Petition has been reproduced in a 14 point

Times New Roman type, a font that is not proportionally spaced.

29

____________________________

_ D. Todd Doss

Florida Bar No. 0910384

Hunt & Doss

P.O. Box 3006

Lake City, FL 32056-3006

(386) 758-6800

On behalf of Mr. Heath

copies furnished to:

William J. Thurber, IV

Dept. of Financial Services

200 East Gaines Street

Tallahassee, FL 32399

Ralph D. Grabel

Office of the State Attorney

P.O. Box 1437

Gainesville, Florida 32602

Cassandra Dolgin

Assistant Attorney General

Office of the Attorney General

The Capitol, PL01

Tallahassee, Florida 32399

Robert Augustus Harper

325 West Park Avenue

Tallahassee, FL 32301-1413

Roger Maas

Commission on Capital Cases

402 South Monroe Street

Tallahassee, FL 32399-1300

30

____

31

D. Todd Doss

Florida Bar No. 0910384

Hunt & Doss

P.O. Box 3006

Lake City, FL 32056

(386) 758-6800

On behalf of Mr. Heath

Motion for Appointment of Registry Counsel Tab 1

Order Granting State’s Motion for Appointment Tab 2

of Registry Counsel

Amended Order Granting State’s Motion for Tab 3

Appointment of Registry Counsel

Motion to Compel Contract or in the Alternative Tab 4

for Rule to Show Cause

State’s Suggestions in Opposition to Tab 5

Defendant’s "Motion for Continuance"

Department of Financial Services Special Appearance Tab 6

and Response to Defendant’s Motion to Compel Contract

Order Denying Defendant’s Motion for Continuance and Tab 7

Motion to Compel Contract or for Rule to Show Cause