STATE ex rel. ROBERT A. BUTTERWORTH,

Attorney General,

State of Florida,

RELATOR,

v. CASE NO. SC01-

1586

BILL JENNINGS, CCRC-Middle Region;

ERIC PINKARD,

Assistant CCRC-Middle Region;

MICHAEL P. REITER, CCRC-Northern Region;

BRET B. STRAND,

Assistant CCRC-Northern Region;

NEIL A. DUPREE, CCRC-Southern Region; et al.

RESPONDENTS.

_________________________________/

COMES NOW Attorney General Robert A. Butterworth and files

this Petition for Writ of Quo Warranto, pursuant to Art. V, sec.

3(b)(8), Fla. Const., seeking to prevent the Office of the

Capital Collateral Regional Counsel and their assistants or

registry counsel from representing any death row inmates 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, as such action is contrary to their legislative

authority derived from Florida Statute 27.7001-27.711, and

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requests withdrawal of all representation from all such cases

and would show:

in this Court on a pending rehearing of a habeas corpus petition

which challenged the effective assistance of appellate counsel

at resentencing.

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I. Preliminary Statement

The proceeding which has occasioned the instant petition

derives, by the efforts of assistant CCRC attorney Eric Pinkard

Hall’s pro se motion for counsel to assist him in challenging

his 1968 conviction for assault with intent to commit rape

filed in the circuit court of Sumter County. Relator notes that

CCR counsel has sought to engage in representing another death

row inmate, Mr. Melton, in challenging not only his capital

judgment and sentence but also a non-capital judgment and

sentence via Rule 3.850 attack (See App. 6) Additionally,

Relator would submit that Mr. Neal Dupree of CCRC-S has filed a

seventy-nine page motion to vacate in a non-capital postconviction

case for Michael Thomas Rivera in December, 2000 in

Broward County Circuit Court Case No. 86-2598. Relator submits

that collateral counsel appointed pursuant to chapter 27 are not

authorized by statute to conduct such representation and

therefore seeks relief by the instant writ to stop this

unpermitted practice.

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II. Statement of Facts

On March 15, 2001, Hall filed in the Circuit Court for the

Fifth Judicial Circuit in and for Sumter County what he labeled

a "Motion to Appoint Counsel to Argue Previously Filed Motion to

Appoint Counsel for Purposes of Appeal" in Case No. 1546. (App.

1) In Case No. 1546, Hall had been convicted in 1968 following

a jury trial of Assault With Intent to Commit Sexual Battery.

The State filed a Response in Opposition to Motion to

Appoint Counsel to Argue Previously Filed Motion to Appoint

Counsel for Purposes of Appeal on or about April 10, 2001. (App.

2)

Thereafter, Eric C. Pinkard of Capital Collateral Regional

Counsel - Middle (CCRC) filed a Notice of Appearance on behalf

of the defendant. (App. 3) The State filed State’s Motion to

Strike Notice of Appearance citing chapter 27 of the Florida

Statutes, particularly F.S. 27.7001, and urging these provisions

do not contemplate, authorize or permit the Capital Collateral

Regional Counselors to represent defendants in non-capital

cases. The State relied on State ex rel. Butterworth v. Kenny,

714 So. 2d 404 (Fla. 1998) and additionally argued that CCRC was

attempting to circumvent the recent Florida Supreme Court

opinion denying Hall’s Habeas Corpus review in Hall v. Moore, 26

Fla. L. Weekly S316 (May 10, 2001), wherein this Court denied

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habeas corpus relief on the claim that Hall received ineffective

assistance of appellate counsel. This Court ruled in pertinent

part:

Hall argues as his third issue that

appellate counsel was ineffective for

failing to argue that it was error to use

Hall’s 1968 conviction for assault with

intent to commit rape as an aggravating

circumstance because the conviction was

obtained in a racist atmosphere and in

violation of Hall’s constitutional rights.

This Court has noted that counsel cannot be

deemed ineffective for failing to raise a

At the time of Hall’s appeal, this Court had

held that a defendant’s allegations

concerning the unconstitutionality of a

prior conviction were not cognizable if that

(Fla. 1989). Thus, the failure of appellate

counsel to raise this issue does not render

counsel’s performance ineffective.

We also deny Hall’s request to postpone

ruling on this claim until a decision is

made with regard to a possible review of

Hall’s prior conviction. We have rejected

So. 2d at 1143.

Id. at 317.

A hearing was conducted before the Honorable Hale A.

Stancil, Circuit Judge on June 11, 2001. (App. 4) In response

to Judge Stancil’s question whether CCRC could represent Hall in

this non-death case, Mr. Pinkard replied:

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MR. PINKARD: Judge, I believe that,

although it’s a non-death case, it is the

aggravating circumstances for which

substantiated or for which a Court relied

upon in giving Mr. Hall the death sentence.

And I think that if there is a problem

monetarily as far as the taxpayers spending

money for CCRC to represent Mr. Hall in this

case, I’d be happy to take the appointment

individual, separate and apart from CCRC, as

I am a member of the Florida Bar and could

be appointed for that purpose. That way I

wouldn’t submit a bill– . . .

* * *

MR. PINKARD: I can take the case pro

bono. That would be fine with me.

The State continued to object that this was an improper

circumventing of the legislature’s intent. (App. 4, TR 5)

Pinkard acknowledged the 1968 conviction was not a death penalty

case but contended there was a nexus since the instant

conviction was used as an aggravating circumstance. (App. 4, TR

6)

On June 25, 2001, Judge Stancil entered his order. (App. 5)

The court felt it was not necessary to decide whether Kenney

precluded CCRC from representing the defendant but since

attorney Pinkard indicated a willingness to handle the matter on

a pro bono basis in his individual capacity as a member of the

Florida Bar, separate and apart from CCRC, the court concluded

that Attorney Pinkard should be appointed to represent the

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defendant in this case. (App. 5)

III. Reasons for Granting the Writ

This Court has held that quo warranto is the proper method

to test the exercise of some right or privilege, the peculiar

powers of which are derived from the state. Martinez v. State,

545 So. 2d 1338, 1339 (Fla. 1989); State ex rel. Smith v.

Brummer, 426 So. 2d 532 (Fla. 1982) (quo warranto issued because

public defender did not have authority to file class action on

behalf of juveniles in federal court), cert. denied, 464 U.S.

823 (1983); State ex rel. Smith v. Jagger, 426 So. 2d 9 (Fla.

1982) (same); see also, State ex rel. Shevin v. Weinstein, 353

So. 2d 1251 (Fla. 3d DCA 1978) (holding circuit court did not

have authority to appoint an acting state attorney to represent

the State of Florida in an action pending before a federal

court); State, Dept. of Health and Rehabilitative Services v.

Schreiber, 561 So. 2d 1236 (Fla. 4th DCA 1990) (public defender

had no authority to request circuit court to make inquiry into

conditions at state hospital since defendant on whose behalf the

public defender had made the motion had escaped and was at

large).

The Legislature has made its intent unmistakably clear that

Capital Collateral and registry counsel are limited to

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challenging only the conviction and sentence of death of death

row inmates. See F.S. 27.7001 (intent to provide for collateral

representation "to challenge only Florida capital conviction and

sentence" and "collateral representation shall not include

representation during retrials, re-sentencing proceedings

commenced under Chapter 940, or civil litigation"); F.S.

27.702(1) (directing that capital collateral counsel shall

represent death sentenced defendants for the sole purpose of

instituting and prosecuting actions challenging the judgment and

sentence imposed in the state and federal courts and that counsel

shall file only those post-conviction or collateral actions

authorized by statute)(emphasis supplied); F.S. 27.706 (requiring

regional counsel and all full-time assistants appointed shall

serve on a full-time basis and may not engage in the private

practice of law)(emphasis supplied); F.S. 27.711(1)(c)

(prohibiting counsel appointed under s. 27.710 from representing

a capital defendant during a retrial, a re-sentencing proceeding,

a proceeding commenced under Chapter 940, a proceeding

challenging a conviction or sentence other than the conviction

and sentence of death for which the appointment was made, or any

civil litigation other than habeas corpus proceedings.)

In State ex rel. Butterworth v. Kenny, 714 So. 2d 404 (Fla.

1998) this Court ruled on the Attorney General’s petition for a

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writ of quo warranto that CCRC’s representation of capital

defendants was limited by statute to traditional post-conviction

relief actions that challenge only the validity of the

conviction and sentence and was not statutorily authorized to

initiate a federal civil rights lawsuit seeking declaratory and

injunctive relief concerning whether the functioning of

Florida’s electric chair rendered it an unconstitutional method

of execution. This Court noted that the legislature expressed

its intent to prohibit CCRC from engaging in civil litigation

other than for the purpose of instituting and prosecuting the

traditional collateral actions challenging the legality of the

judgment and sentence imposed:

In creating CCRC and the right to

representation for capital defendants in

postconviction relief proceedings, the

Florida legislature has made a choice,

"based on difficult policy considerations

and the allocation of scarce legal

resources," to limit the representation of

CCRC by (1) prohibiting that representation

from extending to representation "during

trials, resentencings, proceedings commenced

27.7001 (emphasis added); and (2) providing

that such representation shall be "for the

our view, the statute empowers CCRC with the

authority to challenge the validity of a

capital defendant’s conviction and sentence

only through traditional postconviction

aggravating factor is a part of the challenge to the death case

was made and rejected in Kenny. There the Court rejected the

notion that a challenge to the electric chair was a challenge to

the appropriateness of the sentence imposed. "The fact that the

documents called the Judgement and Sentence specifically

provided for the electrocution is relevant under Fla. Stat. Sec.

27.702 authorizing CCR (now CCRC) to file ‘collateral actions

challenging the legality of the judgment and sentence.’"...CCRCSouth’s

Response to Petition for Writ of Quo Warranto to Prevent

Respondents From Acting As Plaintiffs’ Counsel in Jones, ET. AL.

v. McAndrews, ET. AL., footnote 7.

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relief proceedings in criminal and quasicriminal

proceedings.

Id. at 408.

The Court concluded:

[12] Accordingly, for the reasons expressed,

we grant the State’s petition and issue a

writ of quo warranto directing that CCRC has

no authority to represent capital defendants

in the federal civil rights action at issue

and has no authority to represent capital

defendants in any civil action not directly

challenging the legality of the judgments

and sentences of such defendants.

Id. at 411.

In the instant case, relator submits that CCRC-assistant

Pinkard’s and CCRC Counsel Jennings’ efforts to challenge that

1968 conviction departed from the mandate of Kenny, and the

clearly-expressed legislative intent of chapter 27 of the

Florida Statutes. The responsibilities of collateral counsel

for death row inmates do not extend to asserting challenges to

such as prior violent felony, are properly the subject matter

for challenge and review by the trial court and the direct

appeals process respectively, rather than on collateral review.

Claims not raised and preserved at trial and on direct appeal

are not cognizable in post conviction review. Because any

attack as to the appropriateness of an aggravating factor must

be raised in the direct appeal process, attacking the

correctness of an underlying aggravator, after the direct

appeal, is beyond the scope of CCRC authority.

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Attorney Pinkard argued below that there was a nexus to his

capital representation since Hall’s 1968 assault conviction was

one of the convictions subsequently used as an aggravating

factor by the trial judge who sentenced Hall to death in the

the defense assertion that appellate counsel in the capital

proceeding had been ineffective for failing to argue the

impropriety of its consideration since prior case law required

the challenged conviction to have been set aside, not merely

subject to attack. Hall v. Moore, 26 Fla. L. Weekly S316 (Fla.

2001). The Court pointedly added:

"We also deny Hall’s request to postpone

ruling on this claim until a decision is

made with regard to a possible review of

Hall’s prior conviction. We have rejected

So. 2d 1143."

Id. at 317.

If Hall seeks to now challenge his 1968 non-capital

conviction as invalid, he must do so without the counsel

challenge to the 1968 conviction would not yield a determination

that aggravating factor F.S. 921.141(5)(b) is inapplicable since

Hall had other and additional prior violent felony convictions

which remain unaffected.

the 1968 judgment and sentence, Mr. Pinkard has used CCR

letterhead and postage meter.

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provided by the legislature in chapter 27 which is limited to

representation for challenges to the imposed capital judgment

Mr. Pinkard’s assertion below that the problem should be

deemed moot with his appointment as counsel in a pro bono

capacity is unacceptable. He is not legally authorized to

overturn the legislature’s considered judgment on the limitation

of services provided by the collateral counsel assigned pursuant

to chapter 27. The legislature has ordained that "all full-time

assistants appointed by [capital collateral regional counsel]

shall serve on a full-time basis and may not engage in the

private practice of law". F.S. 27.706. Attorney Pinkard may

not have a client base or law practice independent of the

responsibilities assigned to him by the Capital Collateral

Regional Counsel. Quite apart from the practical difficulties

of monitoring whether Pinkard is or will be using CCRC staffing,

problem remains that whatever time and effort he puts into his

fraught with delays and other issues which cannot be tolerated.

Not only will Mr. Pinkard be making decisions as to his time

that will impact other CCRC clients but he could potentially

delay the processing of the capital Rule 3.851 by having to

choose which case he will work on at the same time. There is

nothing, no facts or legal issues in the 1968 case that have

anything to do with the death penalty case, save the existence

of the conviction itself and there is certainly nothing about

the death penalty case that has any relation to the validity of

the 1968 conviction except that, that conviction existed to be

used as an aggravating factor. This having been said, Mr.

Pinkard will necessarily be required to take on another case

where there is no justification. If the instant assignment is

authorized, why shouldn’t every death row inmate with a prior

violent felony have their priors challenged by CCRC? The answer

is clear because there are limited resources and the legislature

has elected what areas of defense the state will fund.

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representation in challenging this non-capital conviction, other

death row inmates represented by the Capital Collateral Regional

Counsel-Middle’s Office are not being served while he engages in

this extra unauthorized effort. As recognized in Kenny, the

Florida legislature has made a choice "based on difficult policy

considerations and the allocation of scarce legal resources" to

limit the representation of CCRC to challenge the capital

defendant’s conviction and sentence only through traditional

postconviction relief proceedings. 714 So. 2d at 408. Mr.

Pinkard should not be allowed to use the ploy that any "pro

bono" service adequately responds to the legislature’s

Furthermore, the statutory obligation of CCRC to represent

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Mr. Hall on his capital judgment and sentence may become

compromised by Mr. Pinkard’s extraneous effort to act pro bono

on Hall’s non-capital conviction. Not only is he taking time

away from representing Mr. Hall validly in proceedings pursuant

to the statutory mandate (e.g. federal habeas corpus review),

but also in the event Mr. Pinkard should leave the employment of

CCRC to pursue other opportunities, it is not clear whether that

would result in the saddling of additional responsibilities on

that agency to continue his pro bono efforts for Hall in the

non-capital arena to the detriment of other capital litigants

desirous of legitimate representation in their cases, as the

legislature has seen fit to establish. Mr. Hall is a client of

CCRC, not specifically Mr. Pinkard. As part of Mr. Pinkard’s

employment with CCRC he has been assigned to handle Mr. Hall’s

case. Should Mr. Pinkard leave CCRC’s employ he will not be

responsible for representing Mr. Hall rather CCRC will be

obligated to reassign the Hall case to another CCRC attorney to

handle all capital litigation. By allowing Mr. Pinkard to

circumvent the scope of his employment and expand representation

to non-capital matters, Mr. Pinkard is placing CCRC in an

unacceptable posture. First, clients who might otherwise be

represented by Mr. Pinkard will be assigned to other attorneys

while Mr. Pinkard sets his own agenda as who and when he elects

317.

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to represent; second, should Mr. Pinkard leave CCRC’s employ, he

has complicated the representation of Mr. Hall by CCRC; third,

Mr. Pinkard’s action potentially threatens the ability of the

CCRCs to secure adequate funding and staffing. Certainly

does not say much for the agency’s ability to operate properly

under the statutes or allocate resources in an appropriate

manner to ensure finite resources are fairly and equitably

Alternatively, should this Honorable Court decide that

jurisdiction more appropriately rests with another court,

relator requests that the cause be transferred to that court.

See Art. V, sec. 2(a) Fla. Const. and Fla. R. App. P. 9.040(b).

If an improper remedy has been sought, the cause should be

treated as if a proper remedy had been sought. Art. V, sec.

2(a), Fla. Const.; Fla .R. App. P. 9.040(c).

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Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

___________________________________

ROBERT J. LANDRY

Assistant Attorney General

Florida Bar No. 0134101

2002 North Lois Avenue, Suite 700

Westwood Center

Tampa, Florida 33607

Phone:(813) 801-0600

Fax: (813) 356-1292

COUNSEL FOR RELATOR

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. Regular Mail to BILL

JENNINGS, CCRC and ERIC PINKARD, Assistant CCRC, Office of the

Capital Collateral Regional Counsel - Middle Region, 3801

Corporex Park Drive, Suite 210, Tampa, Florida 33619; MICHAEL P.

REITER, CCRC and BRET B. STRAND, Assistant CCRC, Office of the

Capital Collateral Regional Counsel - Northern Region, Post

Office Drawer 5498, Tallahassee, Florida 32314-5498; and NEAL A.

DUPREE, CCRC, Office of the Capital Collateral Regional Counsel

- Southern Region, 101 N.E. 3rd Avenue, Suite 400, Ft.

Lauderdale, Florida 33301, this _____ day of July, 2001.

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___________________________________

COUNSEL FOR RELATOR

I HEREBY CERTIFY that the size and style of type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

_________________________________

___

COUNSEL FOR RELATOR