On June 20, 2002, the United States Supreme Court announced that the execution of the mentally retarded violated the Eighth Amendment and the involving standards of decency. Atkins v. Virginina, 122 S.Ct. 2242 (2002). The Supreme Court held that the execution of the mentally retarded violated the Eighth Amendment=s prohibition against excessive punishment. The Supreme Court found a Aconsensus [among the states which] reflects widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty.@ Id. The Court concluded that the deficiencies of the mentally retarded Ado not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.@ Id. While so holding, the Supreme Court indicated, AAs was our approach in Ford v. Wainwright, with regard to insanity, we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.@ Atkins, 122 S.Ct. at 2250, quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986).

On April 12, 2002, Mr. Floyd filed an Amended Motion to Vacate Judgment and Sentence, arguing that Mr. Floyd was mentally retarded and school records showed that when he was 15 years old, he was found to be mentally retarded with an IQ of 51. School records showed that at age 15, when he should have been in the tenth grade, his grade level was at the third grade. Mr. Floyd was consistently socially promoted and that he was Abelow average@ and Aslow@ in all areas of school.

A Huff hearing was held on July 12, 2002. At the time, the trial court issued a Case Management Order that said Aat the present time, the existing law in Florida does not afford defendant the right to a separate jury trial on the issue of whether he is mentally retarded,@ 7/16/02 Order at 1. The trial court then ordered that an Atkins evidentiary hearing be conducted on Mr. Floyd=s mental retardation on October 28-29, 2002 to determine if Mr. Floyd is mentally retarded. The court appointed Athree mental retardation experts to evaluate the defendant, pursuant to 921.137, Florida Statutes.@ 7/16/02 Order at 1. Two of the experts were from the State=s list and one was from the defense list. In the Order Appointing Mental Retardation Experts, the trial court acknowledged that while Fla. Stat. 921.137 only calls for the appointment of two experts, the trial court bypassed the statute, stating it Awould prefer to appoint no fewer than three experts to aid the court in determining if the defendant in this case is mentally retarded.@ Order Appointing Mental Retardation Experts, July 29, 2002.

When the experts issued their reports on October 18, 2002, it was clear that the trial court had failed to address who has the burden of proof in determining whether Mr. Floyd is mentally retarded. The trial court had failed to give any guidance to the court=s experts on how to address the issue before the court. The court had failed to notify the experts what tests it would consider reliable. The court had failed to outline what it wanted from the court-appointed experts.

On October 21, 2002, Mr. Floyd sought to stay the proceedings while this Court promulgates standards and rules consistent with Atkins v. Virginia. On October 22, 2002, the trial court denied the stay motion, and determined that the standards, procedures and tests that should apply would be in the hands of Athe experts who regularly practice in the field.@ Order Denying Motion for Stay, October 22, 2002.

On June 10, 2002, Mr. Jones= motion was filed pursuant to Fla. Stat. sec. 921.137. On July 17, 2002, he filed a supplement to this Rule 3.850 after the United States Supreme Court decision in Atkins.

While the State has not contested the merits of Mr. Jones= claims, it argued that the mental retardation claim is procedurally barred and the Atkins decision does not apply retroactively.

Mr. Kight has maintained that he is mentally retarded since trial. At his penalty phase, he presented the unrebutted testimony of Dr. Harry Krop, who found Mr. Kight to be mentally retarded with an IQ of 69, which places his intellectual functioning in the mildly mentally-retarded range. He also testified that after reviewing Mr. Kight's psychological and school records that "there was no question that Mr. Kight functions at this IQ level and that he is in fact mentally retarded.@ Dr. Krop testified that prior IQ tests administered to Mr. Kight also produced results consistent with his own findings and that the highest IQ score Mr. Kight had ever achieved was 72, which he described as "not significantly different from 69.@

In 1992, the trial court ordered a examination of Mr. Thompson in order to determine whether he was competent to proceed. In a written report to the trial judge, following a full panel review, the Department of Health and Rehabilitative Services stated in writing that Mr. Thompson met the legal criteria for mental retardation and recommended he be placed in a residential program. In its sentencing order, the trial court stated Athe testimony of two psychologists established that the Defendant [Mr. Thompson] suffers an intellectual deficit and is mildly retarded. This non-statutory mitigating circumstance was given considerable weight by this Court.@ Thompson v. State, 648 So.2d 692, 696 (Fla. 1995).

The trial court allowed the Atkins amendment, and ordered the state to respond. That State=s response is pending. A status conference is scheduled for December 10, 2002. At that time, the court has indicated an evidentiary hearing will be scheduled on the mental retardation claim. The state has not filed a answer to the amended complaint and has yet to take a position on the retroactivity issue or the need for this Court to adopt standards for the litigation of mental retardation claims in a post-conviction setting. However, Mr. Thompson is now in a position of litigating the mental retardation issue with no procedural due process rules for determining this precondition for a death sentence.

On March 1, 2002, Mr. Capehart filed his fifth amended motion to vacate claiming that he is mentally retarded and that the execution of Gregory Capehart is in violation of Fla. Stat. sec. 921.137(2). The State=s response, filed October 16, 2002, contends that no hearing is required on this claim because the issue is Apremature@ before a death warrant is signed. A Huff hearing is set for November 15, 2002.

Article V, Section 3(b)(1) and (7) of the Florida Constitution gives this Court exclusive appellate jurisdiction over all capital cases and the ability to issue Aall writs necessary to the complete exercise of its jurisdiction.@ This Court=s Aall writs@ jurisdiction may be invoked in capital cases when warranted by circumstances. Jones v. Buttwerworth, 691 So.2d 481 (Fla. 1997). Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994). The circumstances presented herein warrant invocation of the Aall writs@ jurisdiction.

This Court has consistently maintained an especially vigilant control over capital cases, exercising a special scope of review, see Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977); Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985), and has not hesitated in exercising its inherent jurisdiction to review issues arising in the course of capital post-conviction proceedings. State v. Lewis, 656 So. 2d 1248 (Fla. 1995). This petition presents substantial constitutional questions concerning the administration of capital punishment in this State consistent with the United States and Florida Constitutions. The issues are therefore of the type classically considered by this Court pursuant to its Aall writs@ jurisdiction. Jones v. Butterworth. This Court has the inherent power to exercise its jurisdiction. The reasons set forth herein demonstrate that the Court=s exercise of its Aall writs@ jurisdiction, and of its authority to promulgate rules of procedure is warranted in this action.

IN LIGHT OF THE UNITED STATES SUPREME COURT=S DECISION IN ATKINS V. VIRGINIA, THIS COURT SHOULD EXERCISE ITS RULE MAKING AUTHORITY AND ESTABLISH RULES OF PROCEDURE SETTING FORTH THE MECHANISM FOR MENTALLY RETARDED INDIVIDUALS UNDER SENTENCE OF DEATH TO VINDICATE THEIR RIGHT NOT TO BE EXECUTED.

A. Atkins v. Virgina.

In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment=s ban on excessive and cruel and unusual punishments prohibits the execution of individuals with mental retardation. Reversing its prior decision in Penry v. Lynaugh, 492 U.S. 3003 (1989), the Court concluded that the Constitution A>places a substantive restriction on the State=s power to take the life= of a mentally retarded offender.@ 122 S.Ct. at 2252, quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986).

The Court first established that a fundamental A>precept of justice=@ is that A>punishment for crime should be graduated and proportioned to the offense.=@ 122 S.Ct. at 2246 (internal citations omitted). The Court made clear that determining whether a punishment is constitutionally excessive or cruel and unusual is judged by current norms, not by those which existed at the time the Eighth Amendment was ratified. Id. at 2247. The core Eighth Amendment concept is the A>dignity of man=@ and thus its constitutional content must be informed by A>the evolving standards of decency that mark the progress of a maturing society.=@ 122 S.Ct. at 2247 (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958)). The evolving standard, the Court declared, should be informed by Aobjective factors@ to the maximum extent possible, the most reliable evidence of which is found in state legislative enactments and jury verdicts. Id. However, the Court adhered to the constitutional principle that Ain the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.@ Id. (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977)).

Upon examination, the Court concluded that the evolving standards had in fact demonstrated a marked shift since Penry. The practice of executing the mentally retarded had become Atruly unusual,@ it was Afair to say,@ according to the Court, that Aa national consensus has developed against it.@ Atkins, 122 S.Ct. 2247.

The consensus reflected a judgment about the Arelative culpability of mentally retarded offenders and the relationship between mental retardation and the penological purposes served by

the death penalty.@ 122 S.Ct. at 2250. The Court noted that, due to their impairments, defendants with mental retardation Ahave diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to control impulses and to understand the reactions of others.@ Id. These deficiencies, while not justifying an exemption from criminal liability, do diminish a mentally retarded person=s personal culpability to the extent that neither of the justifications advanced by states in support of the death penalty B retribution and deterrence B would be served by permitting a retarded person=s execution. Id. Retribution in the capital context had been limited to ensuring that Aonly the most deserving of execution are put to death.@ 122 S.Ct. at 2252. Since Ajust desserts@ necessarily depends on the culpability of the offender, the most extreme punishment was deemed excessive due to the Alesser culpability of the mentally retarded offender.@ Id. And, because capital punishment can only serve as a deterrent when a crime is the result of premeditation and deliberation, i.e., when the threat of death will Ainhibit criminal actors from carrying out murderous conduct,@ no deterrence interests are served. Id. This type of calculus, the Court noted, is at the Aopposite end of the spectrum@ from the behavior of the mentally retarded due to their cognitive and behavioral impairments. Id.

In addition to concluding that retention of the death penalty for mentally retarded defendants would not further any legitimate interest in retribution or deterrence, the Court also opined that the reduced capacity of mentally retarded offenders provided a Asecond justification for a categorical rule making such offenders ineligible for the death penalty.@ Id. at 2251. Due to their impairments, there were a host of factors, from the increased risk of false confessions, difficulties in communicating with counsel, and their lesser ability due to limited communication skill to effectively testify on their own behalf or express remorse that, Ain the aggregate,@ carried an unacceptable Arisk of wrongful executions@ for mentally retarded defendants. Id.

Thus, the Court concluded that its Aindependent evaluation of the issue reveals no reasons to disagree with the judgment of the legislatures that have . . . concluded that death is not a suitable punishment for a mentally retarded criminal,@ and thus the Constitution A>places a substantive restriction on the State=s power to take the life= of a mentally retarded offender.@ Id. (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986).

AAn essential principle of due process is that a deprivation of life, liberty or property >be preceded by notice and opportunity for hearing appropriate to the nature of the case.=@ Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). A[F]undamental fairness is the hallmark of the procedural protections afforded by the Due Process Clause.@ Ford v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in part and concurring in the judgment).

Ford, 477 U.S. at 410. In capital proceedings, the Supreme Court held, Athis Court has demanded that factfinding procedures aspire to a heightened standard of reliability.@ Id. at 411. In Ford, the Supreme Court reviewed the procedures employed by Florida to resolve claims of incompetency to be executed and concluded that the procedures did not comport with due process:

Having identified various failings of the Florida scheme, we must conclude that the State=s procedures for determining sanity are inadequate to preclude federal redetermination of the constitutional issue.

Since the decision in Atkins, Governor Bush has not requested the promulgation of a rule of procedure to govern resolution of mental retardation claims. Nor has this Court issued an emergency rule. Thus, Florida has yet to develop an Aappropriate way@ to deal with this issue.

After Atkins, it is clear that the legislative effort to limit the substantive right to those not already under sentence of death violates the Eighth Amendment. Atkins applies retroactively to those already under a final sentence of death. Bell v. Cockrell, B F.3d B , 5^th Cir. Case No. 01-40340 (5^th Cir. Oct. 17, 2002); Hill v. Anderson, 300 F.3d 679 (6^th Cir. 2002); Pulliam v. People, -- N.E.2d -- , 2002 WL 31341298 (Ill. 2002); Murphy v. State, 54 P.3s 556 (Okla. Cr. App. 2002). Because the statute on its face does not apply to those whose death sentences were already in place at the time it was signed into law, the statute does not comport with the Eighth Amendment.

Courts cannot rewrite statutes in a fashion that is contrary to clear legislative intent. The procedural aspects of section 921.137 was not intended to apply to in collateral proceedings. Circuit judges are not empowered to rewrite legislation. See Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995)(court rejected the argument that the judge should have modified standard jury instruction on the mental mitigators to take out the words Aextreme@ and Asubstantial@ because it Ain effect asked the trial court to rewrite the statutory description of mental mitigators, which is a violation of the separation of powers doctrine), citing Art. II, sec. 3, Fla. Const.; State v. Elder, 382 So. 2d 687 (Fla. 1980)(AThe Court is responsible to resolve all doubts as to the validity of a statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent. The court will now, however, abandon judicial restraint and invade the province of the legislature by rewriting its terms.@); Brown v. State, 358 So. 2d 16, 20 (Fla. 1978)(Awhen the subject statute in no way suggests a saving construction, we will not abandon judicial restraint and effectively rewrite the enactment@); Kunz v. New York, 340 U.S. 290 (1951)(Frankfurter, J., concurring). (AThe judicial body might question with justification whether its interpretation is workable or whether it is consistent with legislative policy which, is as yet, undetermined.@).

Moreover, the Florida statute provides a vague definition of sorts for mental retardation, Section 921.137 (4) but leaves it to the Department of Children and Family Services to specify the standardized intelligence tests necessary for the proper determination of mental retardation. The Department has not yet specified tests and the rule relating to mentally retarded defendants is still being developed. See attachment A. Standards which are not yet in place cannot be said to provide notice and an opportunity to be heard. Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)(Aessential principle of due process is that a deprivation of life...be preceded by notice and opportunity for hearing appropriate to the nature of the case@).

The due process violation is better understood when consideration is given to the purpose standardized tests serve. There are various standardized intelligence tests with different standardization samples. Different tests capture different abilities. See generally American Association on Mental Retardation, Mental Retardation: Definition, Classification, and Systems of Support (10^th ed. 2002). Each test, therefore can result in a different test score. Id. Because Section 921.137 requires a Amean score on a standardized intelligence test specified in the rules of the Department of Children and Family Services@ in order to determine Asignificantly subaverage general intellectual functioning,@ there is no definition of what mental retardation is in the statute. Thus, the absence of designated standardized testing and the failure to delineate a specific numerical score as a cutoff provides no notice and opportunity to be meaningful heard on the question of whether Petitioners are mentally retarded. As the United States Supreme Court has explained:

Moreover, this Court has clearly held that Athe Legislature has power to enact substantive law, while the Court has the power to enact procedural law.@ Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000). AArticle V, section 2(a) states that the Florida Supreme Court has the exclusive authority to >adopt rules for the practice and procedure in all courts, including the time for seeking appellate review.=@ Id. The legislature may not usurp this Court=s authority without running afoul of the constitutionally mandated separation of powers. Allen.

Following Ford, this Court promulgated the rules of procedure for consideration of Ford claims. Martin v. Dugger, 515 So.2d 185, 186 (Fla. 1987)(AWe adopted an emergency rule of criminal procedure pertaining to competency to be executed in response to Martin=s petition@). When this Court recognized that a capital defendant had a substantive right to be competent during collateral proceedings, this Court designated temporary rules and initiated the process for promulgating permanent rules to govern the procedure for vindication of the substantive right. Carter v. State, 706 So.2d 873 (Fla. 1998). When the legislature established the substantive right for post-conviction DNA testing, this Court promulgated rules of procedure to governing the vindication of that newly created right.

[T]he lodestar of any effort to devise a procedure must be the overriding dual imperative of providing redress for those with substantial claims and of encouraging accuracy in the factfinding determination. The stakes are high, and the Aevidence@ will always be imprecise. It is all the more important that the adversary presentation of relevant information be as unrestricted as possible. Also essential is that the manner of selecting and using experts responsible for producing that Aevidence@ be conducive to the formulation of neutral, sound, and professional judgments as to the prisoner=s ability to comprehend the nature of the penalty. Fidelty to these principles is the solemn obligation of a civilized society.

Without proper guidelines or standards in place, circuit courts have usurped this Court=s exclusive authority to write the rules governing mental retardation claims by death sentenced defendants. Rules must be promulgated; but, it is this Court=s exclusive authority to promulgate rules of procedure for the courts of this state. Allen v. Butterworth, 756 So.2d at 59.

Under Ring, the Sixth Amendment requires that any finding of fact that makes a defendant eligible for the death penalty must be unanimously made by the jury beyond a reasonable doubt. 122 S.Ct. at 2440. While Ring dealt specifically with statutory aggravating circumstances, it included Afactfinding[s] necessary to . . . put [a defendant] to death.@ Id. at 2443. As set forth previously, Atkins held that the Eighth Amendment prohibits a mentally retarded defendant from being sentenced to death. Thus, a mentally-retarded defendant is now constitutionally ineligible for the death penalty. 122 S.Ct. at 2252. Since mental retardation is now a factual issue upon which a defendant=s eligibility for death turns, Athat fact. . . must be found by a jury beyond a reasonable doubt.@ Ring, 122 S.Ct. at 2439.

Since the United States Constitution prohibits the execution of the mentally retarded, then at a minimum, persons subject to that rule must have notice of the controlling standard and the governing rules of procedure, so that his voice can be heard in a process adopted for determining the Afact@and for vindicating the substantive right. A[T]he procedures by which the facts of the case are determined assume an importance 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 rights.@ Speiser v. Randall, 357 U.S. at 520.

Petitioners also assert their position that under Ring v. Arizona, they are entitled to a jury trial to determine whether they are mentally retarded. Ring requires that capital defendants are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment. A jury trial on Petitioners= mental retardation is necessary in light of Ring because it is a fact which if not proven, will increase their maximum punishment. See Murphy v. Oklahoma, 2002 OK CR 32 (September 4, 2002)(AUnless the issue of mental retardation is resolved prior to trial, the issue of mental retardation shall be decided in the sentencing stage of a capital murder trial.@)

Carol Dittmar, Office of the Attorney General,2002 N. Lois Avenue, Tampa, FL 33607; Eddie D. Evans, Assistant State Attorney, Leon County Courthouse, 4^th Floor, 301 S. Monroe Street,Tallahassee, FL 32399; Thereasa L. Phillips, Assistant State Attorney, Duval County State Attorney=s Office, 330 E. Bay Street, Jacksonville, FL 32202; Curtis French, Office of the Attorney General, P101, The Capitol, Tallahassee, FL 32399-1050;

Phil Van Allen, Asst. State Attorney, Pasco County Courthouse, 38053 Live Oak Ave.,Dade City, FL 33523; Sharon Vollrath, Asst. State Attorney, Courthouse AnnexB5th Floor, 800 E. Kennedy, Tampa, FL 33602 on October 23, 2002.

Duval County State Attorney=s office

Courthouse AnnexB5th Floor