IN THE SUPREME COURT OF FLORIDA

WILLIAM HAROLD KELLEY

Defendant/Petitioner,

v. CASE NO.: SC06-___

L.T. NO.: CR81-0535

STATE OF FLORIDA,

Plaintiff/Respondent.

__________ /

PETITION SEEKING REVIEW OF NONFINAL ORDER

IN DEATH PENALTY POSTCONVICTION PROCEEDING

Petitioner, William Harold Kelley (“Kelley”), seeks review

of a nonfinal order entered in a postconviction proceeding

following imposition of the death penalty. Specifically, Kelley

seeks review of a May 26, 2006, order of the Circuit Court of

the Tenth Judicial Circuit in and for Highlands County, Florida.

That order denied Kelley’s request for discovery on his Fla. R.

Crim. P. 3.853 Motion for DNA Testing. The final hearing on

that motion was recently scheduled for June 6, 2006.

The court denied Kelley’s request for pre-hearing discovery

even though Kelley demonstrated good cause for needing it.

Meanwhile, the court provided only a few weeks notice of the

June 6 final hearing, leaving insufficient time to prepare.

Only interlocutory review can correct the trial court’s

departure from the essential requirements of law and the

resulting material harm to Kelley.

2

I. BASIS FOR INVOKING THE JURISDICTION OF THIS COURT

Kelley invokes the jurisdiction of this Court pursuant to

Fla. R. App. P. 9.142(b) and Art. V, Sec. 3(b)(3) of the Florida

Constitution. This Court has jurisdiction over interlocutory

discovery orders issued during capital postconviction

proceedings. Trepal v. State, 754 So. 2d 702 (Fla. 2000).

II. NAME, DISPOSITION, AND DATES OF ALL PREVIOUS PROCEEDINGS

RELATING TO KELLEY’S CONVICTION AND DEATH SENTENCE

In 1984 Kelley was convicted of first degree murder and

sentenced to death. This Court affirmed his conviction and

sentence in 1986. Kelley v. State, 486 So. 2d 578 (Fla. 1986).

The United States Supreme Court denied certiorari. Kelley v.

Florida, 479 U.S. 871 (1986).

On November 20, 1987, Kelley moved to vacate the judgment

and sentence pursuant to Fla. R. Crim. P. 3.850. Portions of

the motion were summarily denied by the trial court on May 27,

1988. The court held hearings with respect to the remainder of

Kelley’s claims on July 18-19, 1988, and denied those claims on

August 11, 1988. This Court affirmed in 1990. Kelley v. State,

569 So. 2d 754 (Fla. 1990).

On April 8, 1991, Kelley filed a petition for writ of

habeas corpus in this Court. This Court denied the petition on

March 12, 1992. Kelley v. Duggar, 597 So. 2d 262 (Fla. 1992).

3

On October 9, 1992, Kelley petitioned the Southern District

of Florida for federal habeas relief pursuant to 28 U.S.C. §

2254. Kelley v. Singletary, 222 F. Supp. 2d 1357 (S.D. Fla.

2002). Eight years later, on August 31, 2000, the district

court summarily denied some of Kelley’s habeas claims and

deferred consideration of the others pending a determination

whether an evidentiary hearing was required. See Kelley v.

Sec’y for the Dep’t of Corr., 377 F.2d 1317 (11th Cir. 2004).

On November 22, 2000, the Southern District ordered evidentiary

hearings on the outstanding issues presented by the petition.

See id.

After the hearings, on September 19, 2002, the Southern

District granted habeas relief, reversed the conviction, and

ordered new trial based on significant Brady violations. Kelley

v. Singletary, 222 F. Supp. 2d at 1367. The court again granted

federal habeas relief on December 30, 2002, because of

ineffective assistance of counsel. Kelley v. Singletary, 238 F.

Supp. 2d 1325 (S.D. 2002).

On July 23, 2004, the Eleventh Circuit reversed and

reinstated Kelley’s conviction. Kelley v. Sec’y for the Dep’t

of Corr., 377 F.2d at 1333. The United States Supreme Court

denied certiorari. Kelley v. Crosby, 125 S. Ct. 2962 (2002).

On January 17, 2006, pursuant to Fla. R. Crim. P. 3.853,

Kelley requested the trial court to authorize postconviction DNA

4

testing of physical evidence collected by law enforcement in

connection with the crime for which he was convicted. App. A.

On May 12, 2006, the trial court scheduled a final evidentiary

hearing for June 6, 2006. That scheduled proceeding, without

discovery and adequate notice, is the subject of this

interlocutory appeal.

III. FACTS UPON WHICH KELLEY RELIES

In his Motion for DNA Testing, Kelley described specific

items of physical evidence that he believes still exist that may

contain DNA capable of proving his innocence. That motion

affirmatively requested, among other things, pre-hearing

discovery to locate the DNA evidence he seeks to test. App. A.

The State’s response contended Kelley failed to demonstrate

the existence of physical evidence that may contain DNA that

might exonerate him. App. B. The State asserted the evidence

had been lost or destroyed years ago. Id. The State, however,

offered no evidence or description of its efforts, if any, to

determine whether the evidence in fact no longer exists.

Kelley thereafter requested that the court order a

preliminary hearing during which the parties could present oral

argument on certain “threshold issues that [had to] be addressed

before a full evidentiary hearing [could] be held.” App. C.

One threshold issue was whether Kelley was entitled to discovery

5

regarding the existence and location of the physical evidence.

Id.

On April 19, 2006, the trial court entered an interim order

setting this matter for “preliminary hearing” on June 6, 2006,

“regarding whether evidence exists and remains available for DNA

testing.” App. D. The court did not otherwise address Kelley’s

request to conduct discovery prior to a full evidentiary

hearing. The trial court, however, specifically declared that

it was not then ruling on the merits of the request for prehearing

discovery. Id.

Then came the order that led to this appeal. The State

moved to continue the June 6 hearing because Victoria Avalon,

the Assistant State Attorney assigned to this case, would be in

a two-week trial in the Ninth Circuit Court. App. E. At a May

10, 2006, telephonic status conference to address that request,

two-day final evidentiary hearing. This hearing, the court

stated, would include the presentation of witnesses and evidence

on the merits of Kelley’s Motion for Post-Conviction DNA Testing

and, specifically, the existence of the DNA evidence to be

tested. The court further advised that it had made arrangements

through Chief Judge Herring of the Ninth Circuit Court to make

Ms. Avalon available for the June 6 evidentiary hearing.

6

The court thus orally denied the State’s request for

continuance. More importantly, the court for the first time

instructed the parties to be available on June 6-7, 2006, for a

final evidentiary hearing. The final hearing was to be held

even though Kelley had not obtained the requested discovery.

The trial court reduced its oral rulings to writing by

entering two orders on May 12. App. F, G. The first order

denied the motion for continuance and “denied” the preliminary

hearing. App. F. The second order recognized that the court

reconsideration, was setting this case for a full evidentiary

hearing on June 6-7. App. G.

Kelley filed an emergency motion requesting that the court

reconsider its discovery ruling and continue the final

evidentiary hearing. App. H. Kelley pointed out that he had

requested only a preliminary hearing, the court’s April 19 order

had specifically stated the June 6 hearing was a “preliminary

hearing,” and neither party had yet requested a full evidentiary

hearing. The April 19 order had made no reference to the

presentation of testimony or other evidence, nor had it set

deadlines or otherwise set forth standards that would normally

be included in an order setting a final, full evidentiary

hearing.

7

Kelley informed the court that he could not have reasonably

understood that the court was contemplating that the June 6

hearing would be a final, two-day evidentiary hearing. Kelley

also informed that court that, based upon conversations with the

Assistant State Attorney, the State had not understood that the

June 6 hearing would be a final one. Id.

Kelley’s Emergency Motion further pointed out that the

April 19 order expressly acknowledged that Kelley had requested

oral argument on certain preliminary matters requiring

resolution before a full evidentiary hearing could be held.

Chief among the unresolved issues was Kelley’s pending request

to conduct pre-hearing discovery concerning the whereabouts of

the physical evidence. Id.

On May 26, 2006, the court held a telephonic hearing on

Kelley’s Emergency Motion, and denied it. Kelley filed this

appeal. App. I.

IV. ARGUMENT

A. The trial court’s order departs from the essential

requirements of law.

A prisoner’s right to DNA testing to scientifically and

dispositively establish innocence is of paramount importance.

DNA testing “offers a unique opportunity to lend credibility and

certainty to a case for guilt or innocence.” In re Amendment to

Fla. Rule of Crim. Proc. Creating Rule 3.853, 807 So. 2d 633,

8

636 (Anstead, J., concurring in part and dissenting in part).

Recognizing the importance and unique nature of such

evidence, in 2001 the Legislature created a substantive

statutory right to postconviction DNA testing. § 925.11, Fla.

Stat. That statute grants those who have been convicted of a

crime and sentenced by a court the right to DNA testing and

prohibits governmental entities from destroying any DNA evidence

that could exonerate an innocent defendant. Id. In the context

of death penalty cases -- the most serious type of case -- the

governmental entity cannot destroy DNA evidence until 60 days

after execution of the death sentence. Id.

A decision by a postconviction court that DNA evidence does

or does not exist for testing is a factual finding that usually

involves an evidentiary hearing. Thompson v. State, 922 So. 2d

383 (Fla. 2d DCA 2006). The availability of discovery prior to

this evidentiary hearing is a vital component to a convicted

defendant’s ability to take full advantage of his or her right

to DNA testing. Stated simply, denying a convicted defendant

the ability to determine through discovery whether DNA evidence

exists and the location of that evidence effectively nullifies

that person’s right to DNA testing.

Because of the unique ability of DNA evidence to exonerate

convicted defendants, the need for discovery into the existence

of such evidence is even greater than in the usual rule 3.850

9

postconviction proceeding. In most 3.850 cases the grounds for

postconviction relief appear on the face of the record. State

v. Lewis, 656 So. 2d 1248, 1250 (Fla. 1995). In contrast, the

location of the DNA evidence sought to be tested is often

unknown. Fla. R. Crim. P. 3.853(b) (recognizing that location

of DNA evidence may be unknown).

“Especially in the most serious cases, law enforcement

actually has an interest in preserving [DNA] evidence until the

inmate has served his or her sentence to completion. This is so

because there is always the possibility a case could come back

for a re-trial on some issue.” Fla. S. Comm. on Crim. Just.,

CS/CS/SB 44 (2004) Staff Analysis 3-4 (Jan. 22, 2004).

Discovery is therefore necessary to determine the existence and

location of DNA evidence so that the merits of the motion may be

properly decided.

This Court has held that pre-hearing discovery in

postconviction cases should be permitted where the motion sets

forth good reason for needing the discovery. Lewis, 656 So. 2d

at 1249-50. Upon that showing, the trial court may allow

limited discovery into matters that are relevant and material.

Id. (quoting Davis v. State, 624 So. 2d 282, 284 (Fla. 3d DCA

1993)). This standard has been applied in rule 3.853 DNA cases.

See Spaziano v. State, 879 So. 2d 51 (Fla. 5th DCA 2004).

10

Kelley demonstrated good cause for discovery prior to the

evidentiary hearing. App. A. While some evidence was destroyed

several years ago, laboratory reports by the former Florida

Sheriffs Bureau Crime Laboratory who investigated the crime

described an abundance of other physical evidence gathered at

the crime scene. Indeed, Kelley’s Motion for DNA testing

described 30 pieces of evidence of which he himself is aware

that could contain DNA that proves his innocence -- physical

evidence for which there has never been an accounting by the

State. Id.; App. B.

Moreover, as Kelley pointed out in his motion, the only

evidence against him was both circumstantial and inconsistent.

The identity of the person(s) who murdered Mr. Maxcy has always

been a genuinely disputed issue. App. A. Kelley was convicted

as a second assailant in the murder. In fact, during Kelley’s

federal habeas proceeding, strong evidence came to light

suggesting that an original suspect in the crime may have been

the second assailant -- not Kelley. App. A. The State

nonetheless has failed to conduct DNA testing on that suspect.

Pre-hearing discovery should be granted in postconviction

DNA cases where (1) the defendant has reason to believe that

physical evidence exists that could prove his innocence, (2) the

State represents that the evidence has been destroyed, (3) the

court cannot discern from the record what efforts, if any, the

11

custodians employed to find the evidence, and (4) the record

does not contain documents conclusively establishing the

destruction of the evidence. Spaziano, 879 So. 2d at 54-55.

All of these factors are present here.

Kelley has set forth compelling reasons to believe that

physical evidence exists that has never been tested for DNA, and

which could demonstrate that Kelley is innocent. App. A. The

State asserted below, in only a conclusory manner, that the

evidence had been destroyed and, even if not all of it was

destroyed, the State is unable to find it. App. B. Kelley

needs to test those conclusory assertions. He needs pre-hearing

discovery to determine whether the evidence still exists, where

it is, and what investigation the State has made in that regard.

Otherwise, he will be confronted for the first time at the

hearing with whatever evidence the State chooses to present in

support of its position that no evidence exists. See id.

For example, the State has identified its witnesses for the

evidentiary hearing. App. J. Those witnesses appear to be

current evidence custodians from various state agencies

identified in Kelley’s Motion for DNA Testing. Id. As current

custodians, these witnesses likely have no personal knowledge

concerning the handling and disposition of the evidence Kelley

seeks to have tested. They may, however, have knowledge that

could lead to discovery of such evidence.

12

Kelley should be permitted to depose these custodians

before the evidentiary hearing so that he can, at the very

least, identify, depose, and subpoena for hearing the prior

custodians of the evidence from (a) 1966 when the evidence was

collected, (b) 1976 when some of the evidence was supposedly

destroyed, and (c) 1984 when Kelley was tried and convicted.

Kelley should not be required to discover through these

witnesses only at his final evidentiary hearing that other

individuals exist who have knowledge regarding this evidence --

a time by which he would be foreclosed from questioning these

individuals and developing and presenting relevant evidence.

In short, the trial court’s ruling effectively deprives

Kelley of his statutory right to DNA testing. The pre-hearing

discovery requested by Kelley is materially relevant to the

central issues in this case, and discovery is crucial to his

ability to prepare adequately for the full evidentiary hearing.

In addition, the court scheduled the final hearing within a

few weeks of noticing it. The court wholly failed to provide

sufficient notice to Kelley that the hearing would be both final

and evidentiary in nature, as opposed to a true “preliminary”

hearing as expressly stated in the court’s earlier order.

Neither the State nor Kelley had requested the case be set

for an evidentiary hearing before the preliminary issues

presented in Kelley’s Motion were resolved, including Kelley’s

13

request for pre-hearing discovery. It was reasonable to presume

that the “preliminary hearing” as labeled by the court was just

that -- a hearing on the preliminary issues to be determined

prior to a final evidentiary hearing on the merits.

By denying Kelley’s request for pre-hearing discovery and

requiring Kelley to go to a full evidentiary hearing without

sufficient notice or adequate time to prepare, the trial court

departed from the essential requirements of law. See May v.

State, 623 So. 2d 601 (Fla. 2d DCA 2001) (finding denial of due

process by failing to give defendant proper notice of hearing or

adequate time to prepare defense); Knapp v. State, 370 So. 2d 38

(Fla. 3d DCA 1979) (same). Under this Court’s precedent,

limited discovery should be permitted upon a showing of good

cause. Kelley has shown good cause. The trial court’s ruling

denying discovery effectively deprives Kelley of his statutory

right to DNA testing.

B. The trial court’s order causes material injury for

which there is no adequate remedy on appeal.

The trial court’s ruling creates material injury that

cannot be adequately remedied on appeal. During the final

evidentiary hearing on the merits of his motion, Kelley will be

required to demonstrate:

(1) whether evidence that may contain DNA exists;

(2) whether the results of DNA testing of that evidence

likely would be admissible at trial and whether there

14

exists reliable proof to establish that the evidence

containing the tested DNA is authentic and would be

admissible at a future hearing; and

(3) whether there is a reasonable probability that he

would have been acquitted or would have received a

lesser sentence if the DNA had been admitted at trial.

Fla. R. Crim. P. 3.853(c)(5).

Without discovery to determine the existence and location

of the DNA evidence, Kelley cannot establish the foregoing and

his motion will be denied, thereby depriving him of his right to

prove his innocence. For this, no remedy exists on appeal.

Evidence may be inadvertently destroyed or disposed of in the

interim, witnesses may die or otherwise disappear, and Kelley

could be prevented from presenting the best evidence available

in support of his Motion.

While ordinarily material harm does not result from the

denial of discovery, it has been found when the discovery is

crucial to the adequate preparation of the petitioner’s case.

Carroll Contracting, Inc. v. Edwards, 528 So. 2d 951 (Fla. 5th

DCA 1988) (finding material injury from denial of discovery

where there was no substitute for evidence sought). This

material injury cannot be remedied on appeal “since there would

be no practical way to determine after judgment” what the

evidence would have been and how it would have affected the

result. Travelers Indemnity Co. v. Hill, 388 So. 2d 648 (Fla.

5th DCA 1980) (finding material injury related to denial of

15

discovery “since there would be no practical way to determine

after judgment” what the evidence would have been and how it

would have affected the result); Colonial Penn Ins. Co. v.

This principle is even more compelling in cases such as

this, which involve the potential exoneration of a defendant and

the defendant’s statutory right to DNA testing. Unless Kelley

can discover what evidence exists and where it is located, that

evidence cannot be made part of the record supporting his

motion. Such injury cannot be remedied on appeal because there

would be no practical way for this Court to determine after

judgment what evidence might have been elicited with proper

discovery and how it would have affected the outcome.

The very deprivation of Kelley’s statutory right to DNA

testing itself constitutes a material injury that cannot be

remedied on appeal. Under section 925.11, Fla. Stat. and rule

3.853, convicted defendants should be given a fair opportunity

to demonstrate their innocence through DNA testing by being

permitted to discover the existence and location of DNA evidence

prior to their evidentiary hearing. The remedies afforded by

nature and collateral to the criminal prosecution that resulted

in the conviction, courts may look to cases addressing the civil

application of this rule. See Rozier v. State, 603 So. 2d 120,

121 (Fla. 5th DCA 1992) (citing State v. White, 470 So. 2d 1377,

1378 (Fla. 1985)).

16

the statute and rule would be rendered meaningless if defendants

are not permitted to engage in discovery on the ultimate factual

questions prior to actually engaging in the final hearing.

Moreover, every day that goes by without a step towards

determining the location of the physical evidence in this case

risks the loss or destruction of the evidence. Providing Kelley

the opportunity to fully present his case on the merits with

adequate notice and time to prepare lessens the risk that he

will be unable to recover the evidence.

Finally, as this Court is keenly aware, Kelley is a

prisoner who has been serving a death sentence that he maintains

was improperly imposed. Each additional day that he serves an

illegal sentence in prison causes unspeakable injury to him that

cannot be remedied. Indeed, Kelley is in immediate danger of

having a death warrant issued against him. The Governor’s

General Counsel has already advised that Kelley’s case is under

review for issuance of a death warrant. App. K.

Based on that representation, it is reasonable to believe

that a death warrant may be issued as early as (1) the U.S.

Supreme Court decides the Clarence Hill case (which was orally

argued several weeks ago), and (2) all of Kelley’s pending

litigation ends (which may be as early as June 7). The

imposition of a death warrant on a potentially innocent capital

defendant that has been denied his statutory right to DNA

17

testing and not had the chance to adequately prove his innocence

is the worst kind of irreparable harm.

To fully benefit from his substantive right to DNA testing,

Kelley should be permitted appropriate discovery into the

existence and location of physical evidence. By ruling to the

contrary, the trial court departed from the essential

requirements of law, deprived Kelley of the benefit of his

statutory right, and caused material injury that cannot be

remedied on appeal.

V. NATURE OF RELIEF SOUGHT

Kelley respectfully requests that this Court quash (1) the

trial court’s order denying his request for pre-hearing

discovery and (2) the court’s order setting a full, evidentiary

hearing for June 6-7, 2006. Kelley requests that this Court

hold that Kelley be allowed to conduct pre-hearing discovery

prior to a final evidentiary hearing on his motion.

18

Respectfully submitted,

Sylvia H. Walbolt

Florida Bar No. 033604

Jim Wiley

Florida Bar No. 374237

CARLTON FIELDS, P.A.

P.O. Box 3239

Tampa, FL 33601-3239

Telephone: (813) 223-7000

Facsimile: (813) 229-4133

____________________________________

Christine R. Davis

Florida Bar No. 569372

CARLTON FIELDS, P.A.

215 South Monroe St.

Suite 500

Tallahassee, FL 32301-1866

Telephone: (850) 224-1585

Facsimile: (850) 222-0398

Attorneys For Defendant/Petitioner

William Harold Kelley

19

CERTIFICATE OF SERVICE

foregoing was served via Facsimile and U.S. Mail to the

following persons this ____ day of May, 2006.

Carol M. Dittmar, Esq. Victoria Avalon, Esq.

Sr. Assistant Attorney General Assistant State Attorney

3507 E. Frontage Rd., Suite 200 P.O. Box 9000, Drawer SA

Tampa, FL 33607-7013 Bartow, FL 33831-9000

Victoria Brennan, Esq.

Assistant General Counsel

Office of the Governor

400 S. Monroe St., Suite 209

Tallahassee, FL 32399-6536

_____________________________

Attorney

CERTIFICATE OF COMPLIANCE

throughout this Petition is 12-point Courier New, and that this

Petition fully complies with the requirements of Florida Rules

_____________________________

Attorney