STATE OF FLORIDA,

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MOTION TO STAY PROCEEDINGS PENDING PETITION SEEKING TO INVOKE THE FLORIDA SUPREME COURT’S ALL WRITS JURISDICTION

COMES NOW, THE APPELLANT, JAMES FLOYD, through undersigned counsel, and moves this Court for a stay of the evidentiary hearing scheduled for Monday and Tuesday, October 28-29, 2002 on whether Mr. Floyd is mentally retarded. In support thereof, Mr. Floyd argues the following:

1. An evidentiary hearing in the case of James Floyd v. State, Case Nos. CRC 84-

00578 CFANO; CRC84-00589 CFANO in the Sixth Judicial Circuit in and for Pinellas County is scheduled to begin on Monday, October 28, 2002. The purpose of the hearing is to determine if Mr. Floyd is mentally retarded pursuant to Atkins v. Virginia, 122 S. Ct. 2242 (2002).

2. The trial court appointed three experts to evaluate Mr. Floyd for mental retardation. However, upon the submission of reports by those experts on October 18, 2002, it became clear that the experts lacked guidance as to what IQ testing should be employed and what standards govern the evaluations of Mr. Floyd. The reports reflect that the trial court also failed to give guidance to the Court’s experts on how to address the issue before the court. Without any guidance or guidelines, one court-appointed expert issued a report on October 16, 2002, concluding that:

"It is my opinion within a reasonable degree of psychological certainty that Mr. Floyd does not meet standards for post-conviction relief from the death penalty on the basis of mental retardation."

See, Psychological Report of Michael Gamache, October 16, 2002, pg. 2. Besides opining upon the ultimate legal question, this examiner’s conclusion begs the questions that have not been answered: What is the standard? Who bears the burden of proof? And, what is the burden of proof?

3. As a result of these reports and the lack of guidance given to the experts, Mr. Floyd sought to have the hearing stayed to give this Court time to promulgate rules and procedures consistent with Atkins v. Virginia. When counsel voiced her concerns that the experts had been given no standards, procedures or notice as to what they should look for, the trial court said:

...the determination of what procedures should be employed, what tests should be administered, and what standards should apply are issues for the experts who regularly practice in the field.

10/22/02 Order at 1-2 (emphasis added)(See Attachment A). It would thus appear that because of the absence of rules of procedure, the circuit court has concluded that the procedure for determining mental retardation has been left entirely to the mental health examiners.

4. Despite the argument by counsel, the trial court rejected the procedures set out in the Legislature’s attempt at a mental retardation statute Fla. Stat. Sec. 921.137. In its October 22, 2002 order denying Mr. Floyd’s motion for stay, the trial court announced that Mr. Floyd would have the burden of proving that he was mentally retarded. It also decided that each individual expert would decide what standards, procedures, and rules would determine whether Mr. Floyd is mentally retarded, not the Florida Legislature and not the Department of Children and Families as set out in 921.137. This was the first time the trial court had given Mr. Floyd notice of how it intended to conduct the mental retardation evidentiary hearing set for October 28, 2002. Mr. Floyd is concerned that the trial court has not only usurped the legislative function, but has turned over its judicial authority to experts who have no concept of what legal procedures and standards should be.

5. Under Fla. Stat. sec. 921.137, Mr. Floyd had expected the Department of Children and Family Services (hereinafter DCF), to specify the standards and tests necessary for the proper determination of mental retardation. However, DCF has not yet completed its development of those standards, even though the rules are in the process of being created. (See Attachment B). Contrary to the trial court’s suggestion, undersigned is concerned about a procedure that allows the court-appointed experts to essentially make it up as they go along. Each expert has given various standardized tests with different standardization samples, and each test gives a different score.

6. Counsel for Mr. Floyd is concerned that the trial court, without guidelines or

standards, will be unable to determine "significantly subaverage general intellectual functioning" since there is no definition without using the mental retardation statute, see Fla. Stat. sec. 921.137 (f). That statute, in its current form, does not apply to Mr. Floyd because it is not retroactive, and this Court has not had an opportunity to correct those defects by promulgating new rules or procedures in light of Atkins. Without proper guidelines or standards in place, the trial court is usurping this Court’s exclusive authority to write the rules governing mental retardation. As the United States Supreme Court has explained:

the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safeguards surrounding those right.

Speiser v. Randall, 357 U.S. 513, 520-21 (1958).

7. The trial court relied on a footnote in Crooks v. State, 813 So. 2d 68, 76 n.5 (Fla. 2002) to support its suggestion that the court-appointed experts could establish their own standards, rules and procedures in an Atkins mental retardation hearing. However, Crooks was a direct appeal opinion decided on March 7, 2002 without consideration of the United States Supreme Court’s decision in Atkins. In addition, the subject of Mr. Crooks’s appeal was the failure of the trial court to consider borderline mental retardation as mitigating evidence. The footnote sets out that "society’s understanding of mental retardation continues to evolve" and that this Court has elected to follow the approach of the United States Supreme Court in treating low intelligence as a significant mitigating factor. See, Crooks v. State, 813 So. 2d at footnote 5. In addition, at footnote 7, this Court specifically states that Fla. Stat. sec. 921.137 has just been codified and that "the applicability of this new legislation and its effect, if any, on Crook’s case is not before us." Crooks v. State, 813 So. 2d at footnote 7. Mr. Floyd’s issues under Atkins are completely different.

8. If these proceedings are not stayed, Mr. Floyd may suffer irreparable harm. Mr. Floyd’s Eighth Amendment rights will be violated. If the trial court is allowed to proceed and determine whether Mr. Floyd is mentally retarded without proper notice and without the promulgation of a rule of procedure to govern resolution of mental retardation claims, he will be placed in a worse position by virtue of when his case happened to appear in the system. In the past, this Court has acted to prevent such dire consequences.

WHEREFORE, based on the above arguments, counsel for Appellant respectfully requests that this Court stay the mental retardation evidentiary hearing pending this Court’s consideration of the all writs petition filed simultaneously with this motion.

I HEREBY CERTIFY that a true copy of the foregoing Motion to Stay Proceedings Pending Consideration of All-Writs Petition has been furnished by United States Mail, first class postage prepaid, to all counsel of record on October 23, 2002.

__________________________

PAMELA H. IZAKOWITZ

Fla. Bar No. 0053856

Assistant CCRC-South

P.O. Box 3294

Tampa, FL 33601

(813) 259-4424

Attorney for Mr. Floyd

cc: The Honorable Richard Luce

Circuit Court Judge

Criminal Justice Center

14250 49^TH Street North

4^th Floor, H Wing

Clearwater, FL 33762

C. Marie King/T.R. McGarry

Assistant State Attorneys

P.O. Box 5028

Clearwater, FL 33758

Carol Dittmar

Office of the Attorney General

2002 N. Lois Avenue; Suite 700

Tampa, FL 33607