IN THE SUPREME COURT OF FLORIDA

CASE NO. SC01-1587

STATE OF FLORIDA ex rel.

ROBERT A. BUTTERWORTH, etc.,

Relator,

v.

BILL JENNINGS, etc., et al.,

Respondents.

___________________________/

COMES NOW THE RESPONDENT, NEAL A. DUPREE, CCRC-SOUTHERN REGION, and herein moves to dismiss Respondent Dupree and/or the Office of the Capital Collateral Regional Counsel-South [CCRC-South], from the Emergency Petition for Writ of Quo Warranto filed against him and other named parties. In support thereof, Respondent Dupree would state:

1. On July 24, 2001, Relator filed an Emergency Petition for Writ of Quo Warranto [Petition], naming several parties as Respondents. One of the parties is Neal A. Dupree, who is the appointed agency head of the CCRC-South Office.

2. In his petition, Relator seeks to prevent Respondent Dupree (as well as the other named parties), from representing clients "in actions to challenge the validity of any judgment and sentence other than the capital judgment and sentence of death that has been imposed for which they are representing the death row inmate" (Petition at 1).

3. As to Respondent Dupree, Relator's specific "complaint" is set forth as follows:

Additionally, Relator would submit that Mr. Neal Dupree of CCRC-S has filed a seventy-nine page motion to vacate in a non-capital post-conviction case for Michael Thomas Rivera in December, 2000 in Broward County Circuit Court Case No. 86-2598.

(Petition at 2). This brief mention of Respondent Dupree and the complaints about his alleged unauthorized practice is set forth in the "Preliminary Statement" of the Relator's pleading. No additional specific complaints about Respondent Dupree or the Michael Rivera case are made in the Relator's pleading except for the brief passage set forth in the "Preliminary Statement." And aside from the general reference to a December, 2000, pleading, no other documents from the Michael Rivera case are referred to by Relator or attached to his pleading.

4. For the reasons set forth below, Respondent Dupree submits that the petition should be dismissed as to him and the CCRC-South Office. In order to fully understand his position as to the propriety of dismissal, and because Relator did not accurately set forth in his petition the Michael Rivera litigation, a chronology of the Mr. Rivera's litigation will be first discussed.

A. CHRONOLOGY OF LITIGATION ON BEHALF OF MICHAEL RIVERA.

5. Mr. Rivera's conviction for first-degree murder and resulting sentence of death were affirmed by this Court in 1990. Rivera v. State, 561 So. 2d 536 (Fla. 1990). Thereafter, the former Office of the Capital Collateral Representative [CCR] began representing Mr. Rivera in litigating a Rule 3.850 motion.

6. In November, 1986, Mr. Rivera had been convicted by a jury of kidnapping, attempted first-degree murder, aggravated child abuse, and aggravated battery upon Ms. Goetz. During the State's case-in-chief at Mr. Rivera's capital trial, it was permitted, over objection, to introduce Williams-rule evidence in the form of a sexual assault purportedly committed by Mr. Rivera on Jennifer Goetz. Rivera, 561 So. 2d at 538-39. The Goetz convictions were also used as aggravating circumstances in support of the death sentence.

7. As noted above, Mr. Rivera was convicted in the Goetz case in November, 1986. Mr. Rivera subsequently appealed the Goetz conviction, and the Fourth District reversed the convictions for child abuse and aggravated battery, and remanded for resentencing. Rivera v. State, 547 So. 2d 140 (Fla. 4th DCA 1989). On August 5, 1993, Mr. Rivera was resentenced in the Goetz case, and he appealed. The Fourth District reversed and remanded for proper crediting of Mr. Rivera's "time served." Rivera v. State, 638 So. 2d 148 (Fla. 4th DCA 1994). On July 8, 1994, the trial court entered the sentencing order as mandated by the Fourth District.

8. On June 21, 1996, while Mr. Rivera's capital Rule 3.850 motion was on appeal to this Court, a Rule 3.850 motion was filed by CCR on behalf of Mr. Rivera, challenging the validity of the Goetz conviction (Attachment 1). On September 6, 1996, the State, through the Office of the State Attorney in and for the Seventeenth Judicial Circuit, filed a Motion to Discharge the Office of the Capital Collateral Representative, arguing that although the motion was timely filed, CCR should be discharged from representing Mr. Rivera:

8. On June 25, 1996, the Office of the Capital Collateral Representative filed this Motion to Vacate Judgment of Conviction and Sentence With Special Request for Leave to Amend.

9. The State maintains that the Office of the Capital Collateral Representative has no authority to represent Defendant on this case.

10. The Capital Collateral Representative is empowered, through Chapter 27, to represent "any person convicted and sentenced to death in this state so that collateral legal proceedings to challenge any Florida capital conviction and sentence may be commenced." §27.7001, Fla. Stat. 91995), as amended by Fla. Session Law 96-248 (emphasis added). The duties of the Capital Collateral Representative are set forth in F.S. §27.702 which directs CCR to represent each person convicted and sentenced to death by "instituting and prosecuting collateral actions challenging the legality of the judgment and sentence." §27.702 (1), Fla. Stat. (1995) (emphasis added). Thus, the Office of the Capital Collateral Representative is authorized to represent death row inmates on capital cases only. This is not a capital case. Michael Rivera is under a sentence of death in another Broward county case: Case No. 86-11716CF. CCR has already challenged that death sentence by litigating an unsuccessful motion for post-conviction relief in May 1995. However, CCR does not now have the authority to challenge all of Mr. Rivera's convictions on other non-capital cases.

11. So that there be no misunderstanding, the Florida Legislature clearly stated its intent that collateral representation by CCR "shall not include representation during retrials, re-sentencings, proceedings commenced under Chapter 940, or civil litigation." §27.7001 Fla. Stat. (1995), as amended by Fla. Session Law 96-248. Thus, if CCR is precluded from representing a death-row convict on the retrial, re-sentencing or in clemency proceedings on the capital case itself, then CCR is certainly precluded from representation of a death row convict on another, separate, non-capital case. Furthermore, newly created F.S. § 924.066 states: "A person in a non-capital case who is seeking collateral relief under this chapter has no right to a court-appointed lawyer." §924.066 Fla. Stat. (1996), as created by Fla. Session Law 96-248. Thus, Michael Rivera has no right to any court-appointed counsel on this case at this time let alone representation by the Capital Collateral Representative.

12. The State is not asking this Court to Strike the Motion to Vacate itself but would suggest that Defendant be permitted to adopt it pro se, if he wishes to do so. Thus, Defendant would not be prejudiced by CCR's discharge, rather he would receive the benefit of their timely filed seventy-three page motion.

(Attachment 2) (emphasis in original).

9. CCR, on behalf of Mr. Rivera, filed a written response to the State's motion, detailing the legal bases which warranted a denial of the motion (Attachment 3). Following a hearing, the circuit court denied the State's motion on December 23, 1996:

THIS CAUSE came on to be heard on the State's Motion to Discharge the Office of the Capital Collateral Representative. Having considered the motion, Defendant's response, and the arguments of counsel, the Court hereby orders that the motion is DENIED.

(Attachment 4). No appeal was ever taken by the State from the court's denial of the motion to discharge.

10. Thus, with full legal authority to represent Mr. Rivera on his non-capital case, CCR and then CCRC-South continued to litigate that case, along with the capital case, which was remanded for an evidentiary hearing by this Court in 1998. Rivera v. State, 717 So. 2d 477 (Fla. 1998). For example, as noted by Relator, Mr. Rivera, through CCRC-South counsel, filed an amended Rule 3.850 motion in the Goetz case in December, 2000. The State raised no complaint about Mr. Rivera's representation as a result of the December, 2000, filing, nor has the State raised any complaint when other pleadings have been filed by CCRC-South on behalf of Mr. Rivera in the Goetz case (Attachment 5). Other than the motion to discharge filed by the State nearly five years ago, the State has in fact taken no action with respect to the Goetz case since the filing of the initial Rule 3.850 motion in 1996.

B. RESPONDENT DUPREE AND CCRC-SOUTH SHOULD BE DISMISSED FROM THE INSTANT QUO WARRANTO PROCEEDING.

(i) Mr. Dupree and CCRC-South are proceeding with full legal
authority of the court.

11. With the complete chronology of the Rivera situation now clarified, it is quite apparent that Relator has no justiciable actual controversy against Respondent Dupree and CCRC-South, and Mr. Dupree should be dismissed from the instant action. That Relator would set forth a materially inaccurate factual summary of the Rivera litigation, and, most importantly, fail to tell this Court that a motion to discharge CCR filed by the State nearly five years ago and denied nearly five years ago, raises a number of troubling questions, not to mention belying the "emergency" nature of the relief sought by the Relator.

12. The bottom line is that CCRC-South has been counsel for Mr. Rivera on the Goetz case since 1996 with the full legal authority of the lower court. There is no actual controversy as to Respondent Dupree and CCRC-South. It remains to be seen how Mr. Dupree and CCRC-South can be engaging in "unpermitted practice" when a court has in fact permitted the office to proceed as Mr. Rivera's counsel. Because Mr. Dupree and CCRC-South have been representing Mr. Rivera with the full authority of an order of a court of competent jurisdiction, Mr. Dupree should be dismissed from the Relator's action.

(ii) Laches and/or Procedural Default Bar any Action against Mr. Dupree and CCRC-South.

13. As noted above, the State's motion to discharge Mr. Rivera's collateral counsel was filed nearly five years ago and denied nearly five years ago. NO appeal was perfected by the State, or was attempted to be perfected by the State. NO attempt was made by the State to seek any type of mandamus, prohibition, or other extraordinary relief. Now, nearly five years later, Relator, for the first time, has asserted a complaint about Mr. Rivera's collateral counsel.

14. Respondent Dupree submits that the Relator's complaints as to him and the CCRC-South office are barred by laches and/or procedural default.

15. The doctrine of laches is a defense which "requires proof of (1) lack of diligence by a party against whom the defense is asserted, and (2) prejudice to the party asserting the defense." McCray v. State, 699 So. 2d 1366, 1368 (Fla. 1997) (quoting Costello v. United States, 365 U.S. 265, 282 (1961)). If the delay in asserting a claim is "unreasonable" then laches can properly serve to bar the claim. Id. This is particularly true where a defendant set forth "no reason" for the "inordinate" delay in raising his claim for the first time. Id.

16. In McCray, the Court addressed a situation where a criminal defendant filed a petition for habeas corpus alleging ineffective assistance of appellate counsel some fifteen (15) years after his direct appeal. Concluding that the claim "could and should have been raised many years ago" and thus was "unwarranted," "unnecessarily clog[ged] the court dockets" and was "an abuse of the judicial process," the Court fashioned a remedy whereby any petition claiming appellate ineffectiveness raised more than five (5) years from the direct appeal would be presumptively prejudicial to the State and thus barred by the doctrine of laches. McCray, 699 So. 2d at 1368.

17. Respondent Dupree submits that the Relator's present complaint about CCRC-South's representation of Mr. Rivera is barred by the doctrine of laches. The Relator's inordinate delay in raising this matter (nearly five years) is presumptively prejudicial to Mr. Rivera. Nowhere in Relator's pleading does he attempt, much less establish, any reason for the inordinate delay in complaining about Mr. Rivera's representation on the Goetz case. The simple fact is that the State is attempting, five (5) years after the fact, to remove from Mr. Rivera's case "the most qualified and best prepared advocates." Scott v. State, 717 So. 2d 908, 911 (Fla. 1998).

18. This inordinate and unjustifiable delay is presumptively prejudicial under the reasoning of McCray. Even if not presumptively prejudicial, however, the delay is nonetheless prejudicial to Mr. Rivera and his collateral counsel, who have, in good faith, relied on the court's 1996 ruling permitting the now-complained of representation. Mr. Rivera should not have to lose the unusual benefit of the continuity of counsel he has had in his case. Such continuity is rare in postconviction cases. See Arbelaez v. Butterworth, 738 So. 2d 326, 329 (Fla. 1999) (Anstead, J., specially concurring) (noting Florida's "hodge-podge" system of collateral legal representation that has been plagued with "uncertainty and unevenness of representation").

19. The Goetz conviction and the capital conviction are unquestionably intertwined, and recent events in Broward County in the aftermath of Frank Lee Smith's posthumous exoneration only further establish the need for competent counsel who are familiar with Mr. Rivera's case to remain on his case. See DeVise, Conduct of Broward Detective in Another Case is Questioned, The Miami Herald, June 25, 2001 (Attachment 7); Norman, Captain of Deceit: It's Clear that BSO's Richard Scheff Lied Under Oath. So Why Isn't he Charged with Perjury?, The New Times, July 26, 2001 (Attachment 8). It is clear that Mr. Rivera would be substantially prejudiced by CCRC-South's sudden removal from the Goetz case, and the Relator's belated (by five (5) years) attempt to remove counsel is barred by laches.