1

)

Petitioners, )

)

General for the State of Florida, )

Florida Department of Corrections,)

)

Respondents. )

__________________________________)

On November 18, 2002, the Respondents submitted their

Response to the Petition in the above-entitled matter. At the

outset of this Reply, Petitioners must observe that in their

Petition they noted that the United States Supreme Court in

Atkins v. Virginia, 122 S.Ct. 2242 (2002), concluded its

opinion with the following, "As 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). Based upon the reference to Ford in

2

Atkins, the Petitioners stated:

Following the decision by the United States

Supreme Court in Ford, recognizing a

substantive right to not be executed while

insane, this Court promulgated court rules

to provide a mechanism for the vindication

of the newly-recognized substantive right.

In re: Emergency Amendment to Florida Rules

of Criminal Procedure, 497 So.2d 643 (Fla.

1986). See Rule 3.811, Fla. R. Crim. Pro.

Petition at 2. Despite Petitioners’ reference to and reliance

upon the action this Court took to comply with United States

Supreme Court directive in Ford v. Wainwright, Respondents

made absolutely no reference to Ford v. Wainwright or this

Court’s resulting adoption of procedural rules, anywhere

within the Response.

Respondents’ Reply is a knee-jerk reaction to simply

oppose anything filed by or on behalf of death-sentenced

petitioners. Respondents simply refuse to engage in a

constructive analysis of the realities of Atkins. The United

States Supreme Court’s statement in Atkins was a directive for

the States, including Florida, to adopt procedures. The

United States Supreme Court’s reference to Ford v. Wainwright

is a clear signal to the States, including Florida, to follow

the precedent set in the wake of Ford v. Wainwright, and adopt

rules of procedure. A refusal to deal with the Atkins reality

is a recipe for chaos and delay. This Court should not follow

requests no relief other than the promulgation of rules, it

should be treated as a request for this Court to exercise its

rulemaking authority rather than a petition for extraordinary

relief." Response at 2. Of course, Petitioners’ request for

the adoption of rules of procedure carries with it the

concomitant determination that the statute (section 921.137,

Fla. Stat. 2001) is an unconstitutional usurpation of this

Court’s rulemaking authority. See Allen v. Butterworth.

Though the Respondents make their assertion while addressing

this Court’s jurisdiction, later in the Response there is four

page discussion of the validity of section 921.137. Response

at 9-12. Such a defense of the statute would be unnecessary

unless the Respondents understood that the Petition, in asking

for the promulgation of rules, challenged the

constitutionality of the statute.

3

Respondents’ lead and shirk its responsibility.

Respondents asserts that "to the extent that petitioners

are seeking an advisory opinion from this Court, such a

request is inappropriate and should be denied. Department of

Revenue v. Kuhnlein, 646 So.2d 717, 720-21 (Fla. 1994)."

not to address the jurisdictional bases actually set forth by

the Petitioners in their Petition.

First, Petitioners asserted in their Petition:

This Court’s "all writs" jurisdiction may

be invoked in capital cases when warranted

by circumstances. Jones v. Buttwerworth,

691 So.2d 481 (Fla. 1997).

Petition at 10. The case cited by Respondents, Kuhnlein, is

4

not a capital case. This citation fails to explain why this

Court does not have jurisdiction under Jones v. Butterworth,

wherein this Court entertained an all writs petition

challenging the statutorily defined method of carrying out a

death sentence. If this Court did not refuse to entertain the

Petition in Jones as an impermissible request for an advisory

opinion, then it should not refuse to entertain Petitioner’s

request for the promulgation of rules of procedure and a

determination that the statute (section 921.137, Fla. Stat.

2001) is an unconstitutional usurpation of this Court’s rule

making authority. See Allen v. Butterworth, 756 So.2d 52, 59

(Fla. 2000). Certainly, Respondents make no effort to

distinguish Jones v. Butterworth.

The second jurisdictional basis that the Petitioners set

forth was:

Alternatively, Petitioners would ask this

Court to treat the petition as one seeking

a writ of mandamus. Allen v. Butterworth,

756 So.2d 52, 55 (Fla. 2000).

Petition at 10. Again, Respondents make no effort to

distinguish the circumstances presented here from those in

Allen. There, this Court stated:

This Court has previously addressed the

constitutionality of legislative acts

through its mandamus authority. See

Division of Bond Finance v. Smathers, 337

So.2d 805 (Fla. 1976). Accordingly, we

5

treat all of the petitions filed here as

petitions for writs of mandamus. While

this Court has entertained mandamus

petitions involving constitutional

challenges, "[o]rdinarily the initial

challenge to the constitutionality of a

statute should be made before a trial

court." Id. at 807. However, mandamus is

the appropriate vehicle for addressing

claims of unconstitutionality "where the

functions of government will be adversely

affected without an immediate

determination." Id.; see also Dickinson v.

Stone, 251 So.2d 268, 271 (Fla. 1971).

Allen, 756 So.2d at 54-55. This Court concluded that in

Allen "the functions of government [would] be adversely

affected" if this Court did not hear the mandamus action

because there were "a large number of cases" pending in

collateral proceedings that would be affected and that

"[u]ntil the constitutionality challenge is resolved, the

status of these proceedings is in limbo."

Certainly, the same can now be said about those capital

cases in which a death sentence defendant claims to be

mentally retarded. Just as in Allen, the Petitioners here

assert that the functions of government will be adversely

affected by the failure of this Court to determine the rules

of procedure for enforcement of the substantive right

recognized in Atkins v. Virginia. The failure of Respondents

to address this must be read as demonstrating that there is no

valid argument to be made against the jurisdictional basis

6

that were asserted by Petitioners in their Petition.

In their Response, the Respondents stated, "When the

actual circumstances of the pending cases are explored, it is

clear that petitioners’ cases are factually and procedurally

distinct, warranting different responsive positions by the

State." Response at 3. This statement ignored the actual

contention advanced by the Petitioners, "In each of these

cases, the inconsistencies are obvious as to how the State has

responded and how the trial courts are attempting to respond

to these issues." Petition at 3.

In the case of James Floyd, the circuit court determined

that Atkins v. Virginia applied retroactively. The circuit

court then appointed three mental health experts to report to

the court on Mr. Floyd’s mental retardation. The circuit

court appointed two experts from a list submitted by the

State, and one from a list submitted by Mr. Floyd. This

procedure was not in conformity with sec. 921.137, Fla. Stat.

(2001). The circuit court refused to allow a jury to decide

the question of whether he was not mentally retarded, and

therefore death eligible. The circuit court refused to

indicate what the burden of proof was and directed the experts

to base their opinions upon the standards in their profession.

7

No guidance was forthcoming from the statute since the

Department of Children and Family Services has failed to yet

promulgate the standards and acceptable tests for determining

mental retardation. Nevertheless, the evidentiary hearing was

held October 28-29, 2002.

In the Response, the Respondents did not address the fact

that the judge in Mr. Floyd’s case did accept the main

contentions advanced in the Response: 1) Atkins is not

retroactive, and 2) the sec. 921.137 is constitutionally

valid. If Respondents’ position as set out in the Response is

correct, the evidentiary hearing in Mr. Floyd’s case wasted

thousands of taxpayer dollars. Even if the position staked

out in the Response is in error, the money may have been

wasted if the judge erroneously determined that Mr. Floyd was

not entitled to a jury determination, that he could appoint

more experts from the State’s list of experts than from Mr.

Floyd’s, that he need not provide the experts with direction

as to what the governing standards are for determining mental

retardation, or applies an improper burden of proof.

In the case of Clarence Jones, the circuit court ruled on

November 26, 2002, that the mental retardation claim was

procedural barred because neither Atkins nor the statute apply

retroactively. If this ruling was incorrect, there will be a

bound by a concession made in prior Rule 3.850 proceedings

that Mr. Oats was mentally retarded. Following an evidentiary

hearing in 1990, the State submitted a post-hearing memorandum

acknowledging that Mr. Oats "scored 61 and 57 on the

intelligence tests and has ‘deficits in adaptive functioning’"

(PC-R 3242, 3248). The State conceded, "[u]nder the DSM-III

8

considerable delay before the evidentiary trial mandated under

Atkins v. Virginia occurs. Clearly, the circuit court’s

conclusion in Mr. Jones’ case is fundamentally at odds with

the circuit court’s action in Mr. Floyd’s case.

However, the Petitioners are not the only death sentenced

defendants who have filed a post-conviction challenges to

their death sentences on the basis of Atkins. In State v.

Oats filed a Rule 3.850 motion in March, 2002 arguing that his

mental retardation required the State to reduce his sentence

of death to one of life imprisonment. On November 25, 2002,

the circuit court orally announced that Mr. Oats’ Rule 3.850

was successive and his claims procedurally barred. However,

the circuit court nonetheless ordered an evidentiary hearing

on Mr. Oats’ mental retardation because the State had conceded

that an evidentiary hearing was warranted. It is unclear why

the State in that case would urge the circuit court to conduct

an evidentiary hearing in a case in which the death sentence

criteria, the defendant falls in the mentally retarded area.

No doubt about that." (PC-R 3248). Nevertheless, the State

argued that trial counsel’s performance was not deficient and

that Mr. Oats was not prejudiced by the failure to present his

mental retardation as a mitigating factor.

9

(Fla. 1985). The circuit court indicated that the evidentiary

hearing should be put off until after this Court had resolved

the issues here in order to ascertain whether in guidance

would be forthcoming.

From these three cases only, it appears that chaos reigns

as to how to handle claims made in post-conviction proceedings

pursuant to Atkins v. Virginia. The circumstances call for

this Court to adopt rules of procedure. See Murphy v. State,

54 P.3d 556 (Okla. Cr. App. 2002); State v. Williams, — So.2d

— , 2002 WL 31439553 (La. November 1, 2002).

By ignoring Ford v. Wainwright, Respondents make the

ridiculous argument that Atkins is not retroactive. Ford v.

Wainwright, the case that United States Supreme Court cited in

Atkins v. Virginia, has been given retroactive application by

the United States Supreme Court. In Penry v. Lynaugh, 492

U.S. 302 (1989), the United States Supreme Court stated:

This Court subsequently held that the

Eighth Amendment, as a substantive matter,

prohibits imposing the death penalty on a

certain class of defendants because of

their status, Ford v. Wainwright, supra,

10

477 U.S., at 410 (insanity), or because of

the nature of their offense, Coker v.

Georgia, 433 U.S. 584

(1977)(rape)(plurality opinion). In our

view, a new rule placing a certain class of

individuals beyond the State’s power to

punish by death is analogous to a new rule

placing certain conduct beyond the State’s

power to punish at all. In both cases, the

Constitution itself deprives the State of

the power to impose a certain penalty, and

the finality and comity concerns underlying

Justice Harlan’s view of retroactivity have

little force. As Justice Harlan wrote:

"There is little societal interest in

permitting the criminal process to rest at

a point where it ought properly never to

repose." Mackey, supra, at 693.

Therefore, the first exception set forth in

Teague should be understood to cover not

only rules forbidding criminal punishment

of certain primary conduct but also rules

prohibiting a certain category of

punishment for a class of defendants

because of their status or offense. Thus,

if we held, as a substantive matter, that

the Eighth Amendment prohibits the

execution of mentally retarded persons such

as Penry regardless of the procedures

followed, such a rule would fall under the

first exception to the general rule of

nonretroactivity and would be applicable to

defendants on collateral review.

Penry, 492 U.S. at 330.

The issue has clearly been resolved adversely to the

position advocated by the Respondents. See Bell v. Cockrell,

State, 54 P.3d 556 (Okla. Cr. App. 2002).

11

In their Petition, the Petitioners asserted, "Because

Section 921.137 requires a ‘mean score on a standardized

intelligence test specified in the rules of the Department of

Children and Family Services’ in order to determine

‘significantly subaverage general intellectual functioning,’

there is no definition of what mental retardation is in the

statute." Petition at 19-20. Respondents completely ignored

this legislative delegation of rule making authority, a clear

violation of Allen v. Butterworth, 756 So.2d 52, 59 (Fla.

2000). In fact, Respondents never addressed Petitioners’

numerous citations to Allen. Clearly, the Respondents have no

basis for distinguishing the circumstances in Allen from the

circumstances here.

Further, the Respondents’ insistence that the statute’s

prospective application does not run afoul of Atkins v.

Virginia, overlooks the clear language in Penry v. Lynaugh.

Petitioners are seeking to invoke their rights under Atkins.

To the extent that the legislation conflicts with the Eighth

Amendment to the United States Constitution, the statute is

invalid.

Respondents’ argument that a jury is not required to

determine retardation comes down to their statement that "[a]

to proceed determinations is misplaced. Respondents cite

Dusky v. United States, 362 U.S. 402 (1960), and indicate that

under Dusky there is no right to a jury trial on the question

of competency. However, competency does not involve factual

elements of the crime. Rather it is question involving a

defendant’s ability to understand the criminal court

proceedings. It concerns an entirely different moment in

time; not the moment that the crime occurred, but the moment

the defendant sits in the courtroom. The hollowness of

Respondents’ analogy is readily apparent when it is noted that

the Sixth Amendment right does require a jury to determine

insanity at the time of the offense. Those facts that come to

together at a moment in time to constitute a crime subject to

a certain level of punishment must be subject to the Sixth

Amendment right to trial by jury. Mental retardation, like

chronological age, like insanity at the time of the offense,

like intent, like heat of passion, is a fact that either did

or did not exist at the moment the crime was committed.

Therefore, Petitioners maintain as the Oklahoma Court of

Criminal Appeals found, the question of mental retardation

must be resolved by a jury. Murphy v. State, 54 P.3d 556

(Okla. Cr. App. 2002).

12

finding as to mental retardation does not ‘increase’ the

maximum sentence for first degree capital murder." Response

at 14. However, this statement ignored the simple fact that

after Atkins v. Virginia, a defendant charged with firstdegree

murder is not death eligible if he is mentally

retarded. To be death eligible, a first-degree murder

defendant must not be retarded. Thus, the absence of mental

retardation is a fact that must be present before a sentence

of death may be imposed. Accordingly, it must be determined

by a jury pursuant to the Sixth Amendment right to trial by

13

Court promulgate rules of procedure that will govern the

process by which they may vindicate their rights under Atkins

v. Virginia.

TERRI L. BACKHUS

Backhus & Izakowitz, P.A.

P.O. Box 3294

Tampa, FL 33601

Attorney for Clarence Jones

RACHAEL DAY

CCRC-South

Fort Lauderdale, FL 33301

Attorney for Charlie Kight

ERIC PINKARD

CCRC-Middle

3801 Corporex Park Drive, Suite 201

Tampa, FL 33619

Attorney for Charlie Thompson

RICHARD KILEY

CCRC-Middle

3801 Corporex Park Drive, Suite 201

Tampa, FL 33619

Attorney for Gregory Capehart

14

PAMELA H. IZAKOWITZ

CCRC-South

P.O. Box 3294

Tampa, fL 33601

Attorney for James Floyd

______________________________________

PAMELA H. IZAKOWITZ

Counsel for Petitioners

I HEREBY CERTIFY that a true copy of the foregoing Reply

has been furnished by United States Mail, first-class postage

prepaid, to all counsel of record: C. Marie King/M.

McGarry, Office of the State Attorney, P.O. Box 5038,

Clearwater, FL, 33758; Carol Dittmar, Office of the Attorney

General, 2002 N. Lois Avenue, Suite 700, Tampa, FL 33607;

Eddie D. Evans, Assistant State Attorney, Leon County

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, Assistant State Attorney, Pasco County Courthouse,

38053 Live Oak Avenue, Dade City, FL 33523; Sharon Vollrath,

Kennedy Blvd., Tampa, FL 33602 on December 2, 2002.

_______________________

PAMELA H. IZAKOWITZ

Fla. Bar No. 0053856

Capital Collateral Regional Counsel-

South

P.O. Box 3294

Tampa, FL 33601-3294

(813) 259-4424

15

This is to certify that the Reply has been reproduced in

a

12-point Courier type, a font that is not proportionally

spaced.

_____________________________

PAMELA H. IZAKOWITZ

Fla. Bar No. 0053856

Capital Collateral Regional Counsel-

South

P.O. Box 3294

Tampa, FL 33601-3294

(813) 259-4424