SEVENTEENTH JUDICIAL CIRCUIT, IN

AND FOR BROWARD COUNTY, FLORIDA

CASE NO. 85-4654 CF

STATE OF FLORIDA,

Plaintiff,

v.

FRANK LEE SMITH,

Defendant

______________________/

1. On November 17, 1989 Mr. Smith filed a Rule 3.850 Motion to Vacate Judgment of Conviction and Sentence, including the sentence of death imposed upon him by this Court.

2. All allegations presented in the initial Rule 3.850 motion are incorporated herein by specific reference, and no matters presented in the previous motion are waived or abandoned by submission of this supplement.

3. Mr. Smith now seeks to file this supplement to his post-conviction motions. Brown v. State, 596 So. 2d 1026 (Fla. 1992). Counsel in good faith represents at the outset of this pleading that Mr. Smith's pleading is still incomplete as a result of the untenable predicament caused by the state's failure to timely comply with Mr. Smith's request for public records. Mr. Smith therefore requests leave to further supplement his claims with additional facts as they become available, to add claims, and to provide a memorandum of law in support of his claims for relief.

4. Mr. Smith also continues to request that the Court conduct an evidentiary hearing on his claims. Mr. Smith's claims involve issues requiring full and fair Rule 3.850 evidentiary resolution. See, e.g., Heiney v. Dugger, 558 So. 2d 398 (Fla. 1990); Mason v. State, 489 So. 2d 734 (Fla. 1986). A Rule 3.850 litigant is entitled to an evidentiary hearing unless "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief." Fla. R. Crim. P. 3.850; Lemon v. State, 498 So. 2d 923 (Fla. 1986). Under this standard, the allegations in Mr. Smith's Rule 3.850 motion and its supplement, clearly require an evidentiary hearing.

GROUNDS FOR POST-CONVICTION RELIEF

By his motion for Fla. R. Crim. P. 3.850 relief, and the instant supplement, Mr. Smith asserts that his convictions and sentences, including his sentence of death, were obtained in violation of the fifth, sixth, eighth, and fourteenth amendments to the United States Constitution and the corresponding provisions of the Florida Constitution for each of the reasons set forth below.

CLAIM XXVI

NEWLY DISCOVERED EVIDENCE SHOWS THE PROCEDURE BY WHICH SPECIAL ASSISTANT PUBLIC DEFENDERS AND EXPERT WITNESSES ARE APPOINTED TO HANDLE CAPITAL CASES AND THE MANNER IN WHICH THEY ARE FUNDED IN BROWARD COUNTY CREATES AN IRRECONCILABLE CONFLICT OF INTEREST IN VIOLATION OF MR. SMITH'S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS THE CORRESPONDING PROVISIONS OF THE CONSTITUTION OF THE STATE OF FLORIDA.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this motion are fully incorporated herein by specific reference.

2. Undersigned counsel has recently learned of information regarding the procedures for appointment and funding of Special Assistant Public Defenders for capital cases in the Seventeenth Judicial Circuit, which includes Broward County, Florida. This information also relates to the appointment and funding of expert witnesses who are appointed to assist capital defendants in Broward County. This information came to undersigned counsel's attention when undersigned counsel received a copy of the attached transcript in which Judge Tyson noted the previously undisclosed conflict of interest arising in Broward County.

3. Judge Tyson, a Broward County circuit court judge, recently was faced with a request for funds to pay the fee of a special assistant public defender. Judge Tyson noted that he was burdened with a conflict of interest by virtue of the county's budgeting process. He explained on the record ( see attached transcript):

THE COURT: And yet they have not funded enough money.

I'm in a bad position in that way.

In a way, I have a conflict of interest because the funds that the County Commission gives the Judiciary is for administrative purposes and also to cover the special public defenders that have been appointed and the costs.

If there are overruns on that, they will take it from the Judiciary, such as that phone in there, they wanted to take that out in order to operate the Judiciary.

They're thinking of a bunch of things, so I have a conflict of interest as to whether I want to give his client any money, in the broad sense.

We're having overruns with the special public defenders, particularly with the homicides and other items.

We're trying to keep it down.

We're getting into a marginal area, as I indicated to him.

4. The county fund from which Special Assistant Public Defenders and expert witnesses in capital cases are paid is the same fund from which Broward County Circuit Court judges receive funding for capital improvements. Judges receive moneys from this fund to purchase items including but not limited to computers, telephones, law books, and other necessary office equipment.

5. To resolve these conflicting uses of county funds, many Broward Circuit Judges engage in the practice of negotiating lesser fees with Special Assistant Public Defenders in order to increase the available funds for their own purposes. Because expert witnesses are also paid from this same fund, Special Assistant Public Defenders appointed to capital cases are also expected to "shop for the best deal" before the Court will approve an expert. The experience or competence of the attorney and/or expert takes a backseat to economy in the judge's determination of appointment in capital cases.

6. This situation gives rise to an irreconcilable conflict of interest in capital cases litigated in Broward County. Because Mr. Smith was tried in Broward County, was represented by a Special Assistant Public Defender, and was allowed to consult with court-appointed experts, this situation is clearly relevant to Mr. Smith's case.

7. The United States Supreme Court has recognized the basic constitutional precept of a neutral, detached judiciary:

The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decisionmaking process. See Carey v. Piphus, 435 U.S. 247, 259-262, 266-267, 98 S.Ct. 1042, 1043, 1050-1052, 1053, 1054, 55 L.Ed. 252 (1978). The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. See Matthews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct. 893, 907, 47 L.Ed. 18 (1976). At the same time, it preserves both the appearance and reality of fairness, "generating the feeling, so important to a popular government, that justice has been done." Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring), by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.

Marshall v. Jericho, Inc, 446 U.S. 238, 242 (1980). Due process guarantees the right to a neutral detached judiciary in order:

to convey to the individual a feeling that the government has dealt with him fairly, as well as to minimize the risk of mistaken deprivations of protected interests.

Carey v. Piphus, 425 U.S. 247, 262 (1978).

4. Clearly, the situation in Broward County has engendered an irreconcilable conflict of interest which not only impinges upon the detached and impartial nature of the judiciary, but also violated Mr. Smith's rights to a fair trial, due process, and the effective assistance of competent counsel. See Strickland v. Washington, 466 U.S. 668 (1984). As a result of the fact that Broward County judges are engaged in the practice of appointing attorneys and expert witnesses, regardless of experience, competence, or ability, who are willing to work at "bargain" rates so as to ensure that county funds will be available to purchase necessary office equipment, a conflict of interest of the most serious nature exists.

8. As a result of this situation, Mr. Smith's fifth, sixth, eighth, and fourteenth amendment rights were violated. Evidentiary resolution of this claim is proper, as the files and records in this case by no means show that Mr. Smith is " conclusively" entitled to "no relief" on this and related claims. See Lemon v. State, 498 So. 2d 923 Fla. 1986) (emphasis added); O'Callaghan v. State, 461 So. 2d 1354, 1355 (Fla. 1984).

CONCLUSION AND RELIEF SOUGHT

Mr. Smith prays for the following relief, based on his prima facie allegations demonstrating violation of his constitutional rights:

1. An evidentiary hearing be scheduled so as to allow him to present support for his claims, and that such a hearing be conducted at a reasonable time;

2. He be allowed to proceed in forma pauperis;

3. He be provided necessary funds with which to obtain expert witness and investigative services in order to properly present his claims, and without which no full and fair hearing can be conducted;

4. He be provided subpoena power for the production of witnesses, and full and fair pre-hearing discovery;

5. He be allowed an additional sixty (60) days from the date of disclosure of public records to amend this motion;

6. He be allowed leave to supplement this motion should new claims, facts, or legal precedent become available to counsel; and on the basis of the reasons presented herein,

7. His convictions and sentences, including his sentence of death, be vacated.

I HEREBY CERTIFY that a true copy of the foregoing Supplement has been furnished by United States Mail, first class postage prepaid, to all counsel of record on March ____, 1995.

STEPHEN M. KISSINGER

Florida Bar No. 0979295

Assistant CCR

1533 South Monroe Street

Tallahassee, Florida 32301

(904) 487-4376

Attorney for Defendant

Copies furnished to:

Paul H. Zacks

Assistant State Attorney

Office of the State Attorney

201 SE 6th Street

Ft. Lauderdale, FL 33301

List of Claims for Frank Lee Smith's

Supplemental 3.850 Motion

GROUNDS FOR POST-CONVICTION RELIEF 2

CLAIM XXVI

NEWLY DISCOVERED EVIDENCE SHOWS THE PROCEDURE BY WHICH SPECIAL ASSISTANT PUBLIC DEFENDERS AND EXPERT WITNESSES ARE APPOINTED TO HANDLE CAPITAL CASES AND THE MANNER IN WHICH THEY ARE FUNDED IN BROWARD COUNTY CREATES AN IRRECONCILABLE CONFLICT OF INTEREST IN VIOLATION OF MR. SMITH'S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AS WELL AS THE CORRESPONDING PROVISIONS OF THE CONSTITUTION OF THE STATE OF FLORIDA. 3

CONCLUSION AND RELIEF SOUGHT 7