IN THE SUPREME COURT OF FLORIDA

OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH

PRELIMINARY STATEMENT

Citations in this brief to designate references to the records, followed by the appropriate page number, are as follows:

"R. ___" - Record on appeal to this Court in the 1988 direct appeal;

"PC-R1. ___" - Record on appeal to this Court from the 1990 summary denial of post-conviction relief;

"PC-R2. ___" - Record on appeal to this Court from the 1994 appeal from the second summary denial of post-conviction relief;

"PC-R3. ___" - Record on appeal to this Court from the 1996 appeal from the third summary denial of post-conviction relief;

"PC-R4. ___" - Record on appeal to this Court following the 1997 evidentiary hearing ordered by this Court;

"PC-R4T. ___" - Transcript of evidentiary hearing conducted February 6-7, 1997;

"PC-R5. ___" - Record on appeal to this Court in the appeal from the denial of DNA testing;

"PC-R6. ___" - Record on appeal in the current appeal from the denial of Rule 3.850 motion filed in 2003;

All other citations will be self-explanatory or will otherwise be explained.

REQUEST FOR ORAL ARGUMENT

This is a capital case pending in collateral proceedings. A full opportunity to air the issues through oral argument is necessary given the seriousness of the claims and the issues raised here. Mr. Swafford, through counsel, respectfully urges the Court to permit oral argument.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES

Page

INTRODUCTION

In his dissenting opinion, Justice Anstead stated:

This case represents one of those truly rare instances where this Court has summarily brushed aside on wholly speculative grounds a colorable claim of actual innocence and a possible serious miscarriage of justice. There has been absolutely no focus here on the reality of what actually happened. Tragically too, the claim arises out of a demonstrated Brady violation where the police and prosecuting authorities failed to provide the defendant, as they were constitutionally obligated to do, with substantial evidence of another person’s guilt for the crime for which the defendant has been sentenced to die.

Swafford v. State, 828 So. 2d 966, 978-79 (Fla. 2002) (Anstead, J., dissenting)(emphasis added). In her dissenting opinion, Justice Quince stated:

The highly circumstantial evidence produced at trial, along with the evidence Swafford claimed in his first [post-conviction] motion was not disclosed by the State concerning other suspects and witnesses, when considered in conjunction with the Lestz affidavit, would probably produce an acquittal at trial.

Swafford v. State, 828 So. 2d at 985 (Quince, J., dissenting)(emphasis added).

STATEMENT OF THE CASE

a. Procedural History

Mr. Swafford was charged with first-degree murder, sexual battery and robbery. A jury found Mr. Swafford guilty of first-degree murder and sexual battery, but acquitted him of robbery. The jury recommended a death sentence by a vote of 10 to 2 (R. 1661), and the court sentenced Mr. Swafford to death. This Court affirmed the convictions and death sentence. Swafford v. State, 533 So. 2d 270 (Fla. 1988).

In 1990, Florida’s governor signed a death warrant scheduling Mr. Swafford’s execution for November 13, 1990. Mr. Swafford filed a motion under Rule 3.850, Fla. R. Crim. P., in the circuit court, which denied the motion without an evidentiary hearing. Mr. Swafford appealed to this Court and filed a petition for a writ of habeas corpus. This Court affirmed the denial of Rule 3.850 relief and denied the habeas corpus petition. Swafford v. Dugger, 569 So. 2d 1264 (Fla. 1990).

In 1990, Mr. Swafford filed a federal petition for a writ of habeas corpus in the United States District Court, which denied relief. Mr. Swafford appealed to the United States Court of Appeal for the Eleventh Circuit. In November of 1990, the Eleventh Circuit stayed Mr. Swafford’s execution. Proceedings in that court were later held in abeyance while Mr. Swafford pursued other state remedies.

In 1991, Mr. Swafford filed a second petition for a writ of habeas corpus in this Court. Subsequently, this Court denied relief. Swafford v. Singletary, 584 So. 2d 5 (Fla. 1991).

In 1991, Mr. Swafford filed a second Rule 3.850 motion. The circuit court denied the motion without an evidentiary hearing, and Mr. Swafford again appealed to this Court. While the appeal was pending, Mr. Swafford asked this Court to relinquish jurisdiction for an evidentiary hearing regarding trial counsel’s status as a deputy sheriff and on whether the circuit court judge engaged in ex parte communications with the State in denying the first and second Rule 3.850 motions. This Court granted the requested relinquishment, and the circuit court held an evidentiary hearing on these two issues. The circuit court denied relief, and Mr. Swafford appealed. This Court affirmed the denial of Rule 3.850 relief. Swafford v. State, 636 So. 2d 1309 (Fla. 1994).

In 1994, Mr. Swafford filed a third Rule 3.850 motion. The circuit court denied the motion without an evidentiary hearing. Mr. Swafford appealed to this Court, which reversed and ordered an evidentiary hearing. Swafford v. State, 679 So. 2d 736 (Fla. 1996). In 1997, the circuit court held an evidentiary hearing and denied relief. In 2002, this Court affirmed the denial of Rule 3.850 relief. Swafford v. State, 828 So. 2d 966 (Fla. 2002).

In October of 2002, Mr. Swafford filed a Motion For DNA Testing in which he sought DNA testing of the available physical evidence. (PC-R5. 27). In March of 2003, the State filed a response to this motion, in which it urged the circuit court to deny the motion. As to the mitochondrial DNA testing of the hair evidence, the State contended that Mr. Swafford’s motion "offered nothing but speculation regarding an alternative source, let alone one that exculpates him." (PC-R5. 75). As to nuclear DNA testing, the State revealed in its response to Mr. Swafford’s Motion For DNA Testing that the blood samples drawn from Ms. Rucker during the autopsy were destroyed in 1986. (PC-R5. 76). Thus, the State contended that DNA testing of vaginal swabs could not be done because there was no means of establishing what was Ms. Rucker’s DNA.

This destruction of physical evidence was revealed by the State for the first time in March of 2003. Mr. Swafford’s collateral counsel immediately filed the pending Rule 3.850 motion seeking to vacate his conviction based upon this new disclosure. This new motion to vacate was filed on April 11, 2003. (PC-R6. 13). Mr. Swafford alleged that the destruction of the physical evidence was in bad faith and warranted relief under Arizona v. Youngblood, 488 U.S. 51 (1988). Alternatively, Mr. Swafford argued that in light of the new scientific developments in the field of DNA testing and analysis, the standard set forth in Youngblood for establishing a due process violation under both the Florida and/or United States Constitution should be lowered. (PC-R6. 20). Mr. Swafford specifically requested that an evidentiary hearing be conducted on his claim. (PC-R6. 37).

In his April 11^th motion to vacate, Mr. Swafford also asserted that his death sentence violated the Sixth Amendment principles discussed in Ring v. Arizona, 536 U.S. 584 (2002).

Meanwhile on April 25, 2003, the circuit court denied the motion for DNA testing. (PC-R5. 78). Thereafter, Mr. Swafford filed a notice of appeal to this Court. That appeal is pending in a separate proceeding before this Court.

On May 1, 2003, the State filed a motion to dismiss the Rule 3.850 motion and, alternatively, a response to the Rule 3.850 motion. (PC-R6. 39).

On June 5, 2003, the circuit court entered an order dismissing the Rule 3.850 motion. In its order, the circuit court tersely stated, "[t]his Court having reviewed both of these motions and the Court’s files and records herein, in addition to considering the arguments of counsel thereon, finds that the State’s motion to dismiss the Defendant’s April 11, 2003, motion is well taken." (PC-R6. 46).

On June 20, 2003, Mr. Swafford filed his notice of appeal to this Court.

b. Relevant Facts

On February 15, 1982, Ms. Rucker’s body was discovered by sheriff's deputies in a wooded area about six and a half miles from the Fina station. (R. 746, 748). Ms. Rucker had been sexually assaulted (both vaginally and anally), burned twice with cigarettes and shot nine times. (R. 768-69, 771). The bullets passed through her clothing, indicating that she was fully clothed at the time she was shot. (R. 767). The most likely fatal shot was "[b]ehind the right ear" where "a faint imprint of the muzzle of a weapon" appeared. (R. 765).

Examination of Ms. Rucker’s body provided evidence that she had been sexually assaulted, both vaginally and anally. A lab report lists the following items collected at the scene:

a. three Michelob bottles and six-pack holder;

b. another Michelob bottle;

c. another Michelob bottle;

d. a Budweiser bottle;

e. tissue with suspected hair;

f. another Michelob bottle;

g. the paper bag found in the victim’s right hand;

h. a match book cover;

I. two cigarette butts;

j. three Budweiser cans;

h. a large paper bag.

(PC-R5. 38). The lab reports reflect that the following evidence was collected from Ms. Rucker’s body:

a. blood sample;

b. vaginal swabs;

c. oral swabs;

d. anal swabs;

e. swabs from back of head;

f. swabs from behind right ear;

g. swab from behind right ear.

(PC-R5. 42). This evidence was forensically examined and an FDLE report issued on April 19, 1982. The report noted "[a] chemical test for acid phosphatase, a substance characteristically found in seminal fluid, was positive on Exhibit Q26 (the vaginal swabs) and on Exhibit 26D (the anal swabs). However, semen could not be conclusively identified as no spermatozoa were found." (PC-R5. 43).

Reports from the FDLE Lab noted that some of the physical evidence collected contained biological material:

a. portion of toilet tissue containing questioned hairs;

b. pubic hair sample collected from Rucker;

c. scalp hair sample from Rucker;

d. pubic hair combings collected from Rucker

e. hair sample collected from area of wound;

f. fingernail scrapings collected from Rucker;

g. questioned hairs collected from pubic region;

h. bag collected from Rucker’s right hand;

I. bag collected from Rucker’s left hand;

j. hair sample collected from area of wound;

k. blouse and one sock;

l. vest;

m. slacks;

n. panties;

o. pair of shoes and one sock;

p. blood sample and swabs.

(PC-R5. 45-46). These items were examined forensically. In its report of May 12, 1982, the FDLE noted that "[f]our light brown to blonde hairs typical of Caucasian pubic hair were collected from the tissue [found with Ms. Rucker’s body]. (PC-R5. 46). "These hairs are suitable for comparison purposes pending the submission of known hair samples from the subject." (PC-R5. 46). As to the pubic hair sample collected from Ms. Rucker, it was noted that there were "numerous brown and dark brown hairs typical of Caucasian pubic hair [that were] suitable for use as a known hair sample." (PC-R5. 46). As to the scalp hair sample collected from Ms. Rucker, it was noted that there were "numerous brown hairs typical of Caucasian scalp hair and is suitable for use as a known hair sample." (PC-R5. 46). As to the pubic hair combing, it was noted that there were "[n]umerous brown hairs typical of Caucasian pubic hair [that] were suitable for comparison purposes pending the submission of known hair samples from the subject." (PC-R5. 46). As to the questioned hairs collected from the pubic region, the report indicated "[n]umerous brown hairs typical of Caucasian pubic hair are contained in this exhibit. These hairs are suitable for comparisons purposes pending the submission of known hair samples from the subject." (PC-R5. 47). As to the blouse and sock, the report noted the presence of "[t]hree blonde hair fragments typical of Caucasian scalp hair." (PC-R5. 47). As to the debris in the shoes and socks, "[s]everal hairs typical of Caucasian body hair, in addition to several animal hairs, are contained in the debris." (PC-R5. 47).

Long before Roy Swafford’s name surfaced in the case, Michael Walsh was investigated as a suspect. According to a supplemental police report dated March 17, 1982, Michael Walsh had just been arrested in Arkansas. (PC-R4T. Def. Exh 2). Arkansas authorities discovered in his possession a BOLO for the Rucker homicide in Daytona Beach. (PC-R4T. Def. Exh 2). The Arkansas authorities were struck by Mr. Walsh’s strong resemblance to the composite drawing contained in the BOLO. As a result, the Arkansas authorities contacted the Volusia County Sheriff's Office on March 17, 1982. (PC-R4T. 546). Volusia County law enforcement commenced investigating Mr. Walsh. And in fact, they "corroborate[d] that, that Mr. Walsh resembled the BOLO." (PC-R4T. 546). Law enforcement also determined that Walsh, along with Michael Lestz and Walter Levi, had been in Daytona Beach on February 14, 1983.

Thereafter, there were a series of interviews of Mr. Walsh, and his traveling companions, Mr. Lestz and Mr. Levi. A supplemental police report dated July 20, 1982, summarized a conversation Special Agent Baker had with Mr. Lestz and Mr. Lestz's attorney. (Def. Exh. 3). Special Agent Baker was with the United States Secret Service. Mr. Lestz was in federal custody on a charge of forgery of treasury bonds. (PC-R4T. 85). Agent Baker reported that Mr. Walsh had pistoled whipped Mr. Lestz prior to the two being arrested in March, 1982. (Def. Exh. 3). After pistol whipping Mr. Lestz, Mr. Walsh took him to a motel where he pointed a gun at Mr. Lestz, burned him with cigarettes and said "he was going to kill me by means of placing a pistol behind my left ear and shooting [sic] my brains out and wanted me to think about that before he did it." (PC- R4T 72). In July of 1982, Agent Baker reported that "Lestz’ attorney advises that [the information] Lestz has involves several homicides which occurred in the state of Florida including Walsh -- Walsh’s murder of a white female." (PC-R4T. 574).

On July 23, 1982, Volusia County personnel interviewed Mr. Lestz and subsequently Mr. Walsh. (PC-R4T. 580). At that time, Mr. Lestz said that he, Walsh and Levi were in the Daytona Beach area "on 2/14, 2/15 1982 . . . Walsh accompanied by Levi had again taken his clothes from him, locked him in a small room and taken his van, that the pair disappeared for several days with him not knowing where they went." (PC-R4T. 117, Def. Exh. 6 at 4). During Mr. Lestz’s July 23rd interview, a polygraph examination was administered. Deception was found in many of the questions answered by Mr. Lestz.

On July 23, 1982, Mr. Walsh was interviewed regarding the Rucker homicide. (PC-R4T. Def. Exh. 6). A report summarizing this interview was prepared on July 26, 1982. "[I]t indicated that Walsh indicated that he would not relate what he was doing or his whereabouts during the period of February 14th through 15th, 1982 stating quote, that he would rather not say, close quote." (PC-R4T. 575). The report also noted that Walsh was shown several photographs of the Rucker homicide at which time he was observed as becoming "extremely upset, disorganized, nervous and unsure of his statements." (PC-R4T. Def. Exh 6). The report also stated: "WALSH was asked why upon his incarceration he had a copy of the RUCKER homicide suspect's composite in his possession at which time WALSH indicated that he obtained this composite from a Ormand Beach food store and had simply retained it because of a matter of curiosity." (PC-R4T. Def. Exh 6). The report further stated: "WALSH indicated that his primary support during these periods of time were burglaries and robberies of which he did not care to elaborate, that he was a narcotic addict, using little ‘D’s’ (Dialuded)." (PC-R4T. Def. Exh. 6).

On August 25, 1982, Volusia County authorities interviewed Walter Levi. (PC-R4T. Def. Exh. 1). During that interview, Mr. Levi indicated that "it was common for him and Mr. Lestz to be left at the laundromat while Mr. Walsh went to purchase drugs." (PC-R4T. 555). Mr. Levi indicated that this was the laundromat located on Granada Boulevard. By a law enforcement officer’s "own estimate, this was probably a quarter mile or so" from the Fina Station where Brenda Rucker worked. (PC-R4T. 555). The August 30, 1982, police report summarizing the interview of Mr. Levi stated, "LEVI indicated that on numerous occasions after his arrival back in the Daytona area in 1982, that WALSH drove both he and LESTZ to the area of Granada Boulevard at the laundromat and dropped the two off. LEVI indicated that WALSH would then go to the address of ‘B.P.’ who lives near the intersection of Granada and Route 1 and purchase narcotics." (PC-R4T. Def. Exh. 7). The report observed that:

LEVI further indicated that on the 14th of February, in the early morning hours, that he was spending the night in Daytona Beach hotel under a fictitious name with a stolen credit card. LEVI stated that accompanying him on this particular evening was WALSH.

LEVI indicated that at approximately 6:00 AM, that LESTZ responded to the hotel room and picked up WALSH stating that the pair had 'something to do'. LEVI stated that LESTZ informed WALSH that he did not wish LEVI to go with them as he did not know him that well or trust him.

(PC-R4T. Def. Exh. 7 at 2).

On September 3, 1982, in Sangamon County, Illinois, the vehicle Mr. Lestz possessed while in the Daytona Beach area on February 14th was searched pursuant to a search warrant. The search warrant was supported by the affidavit of Bernard Buscher, a Volusia County Deputy Sheriff. In the affidavit Deputy Buscher stated that when Walsh was arrested in March of 1982, he had in his possession "a composite bulletin concerning details of the Brenda Rucker homicide" (PC-R3. 205). Deputy Buscher also indicated that Brenda Rucker’s autopsy "revealed two marks on the body of the victim possibly caused by the application of a lighted cigarette" (PC-R3. 204). Deputy Buscher revealed in the affidavit that Lestz had stated that Walsh subjected Lestz to homosexual attacks during which "Lestz was burned with a cigarette" (PC-R3. 205). Deputy Buscher also stated that he had examined Lestz’s burns and found "that these burns on Lestz’s body strongly resemble those burns found on the body of Brenda Rucker." (PC-R3. 205). Deputy Buscher further explained that on February 14th, Walsh was anxious to sell two .38 caliber handguns; Walsh "then dyed his hair black and forced Lestz to drive him to New Orleans" (PC-R3. 205-206).

No relevant physical evidence was found as a result of the search of the vehicle which had previously belonged to Mr. Lestz. After the results of the vehicle search were in, Captain Burnsed decided to travel to a federal prison in Illinois to interview Mr. Lestz yet again about the Rucker homicide. (PC-R4T. 550-51). So in January of 1983, Captain Burnsed along with Deputy Buscher traveled at county expense to Marion, Illinois to re-interview Mr. Lestz. Captain Burnsed explained that he wanted to obtain from Mr. Lestz an explanation of why he had shown deception on the polygraph examination conducted in July of 1982. (PC-R4T. 538). In fact, as Captain Burnsed has now testified, Mr. Lestz's problems with the polygraph "indicate[d] to [Captain Burnsed] that this meant that Mr. Walsh was more likely to be involved in the homicide." (PC-R4T. 538).

During the January 25, 1982 interview, Mr. Lestz changed his story. (PC-R4T. 568). He abandoned his previous claim of having been locked in a motel room for two days and having a blackout. Instead, he reported that between 6:00 a.m. and 10:30 a.m. on the day of the Rucker homicide, Walsh left him in a laundromat in Daytona Beach, a block from the Fina station. (PC-R4T. Def. Exh. 5 at 3) A police report dated January 31, 1983 summarizing the interview of Lestz reported that "LESTZ indicated however that upon WALSH’S on numerous occasions dropping him off on Granada Boulevard at the laudromat, he would observe WALSH to drive his (Lestz) vehicle west on Granada and make a left turn on US-1 adjacent to the FINA SERVICE STATION at which the victim was abducted." (PC-R4T. Def. Exh. 5 at 4). Lestz further indicated that Walsh had on numerous occasions frequented the convenience store near the laundromat and had commented on a particular female clerk working at the convenience store (PC-R4T. 76-77). On January 25, 1983, "LESTZ again reiterated that he felt WALSH was responsible for the homicide of BRENDA RUCKER but again stated that he was not there and that WALSH had not informed him that he killed the victim." (PC-R4T. Def. Exh. 5 at 4).

After the January 25th interview of Mr. Lestz, law enforcement stopped its investigation of Mr. Walsh as a suspect in the Rucker homicide.

Five months after the last interview with Mr. Lestz, Mr. Swafford’s name first surfaced as a suspect. In June of 1983, Roger Harper contacted Volusia County authorities indicating that he may have information regarding the Rucker homicide. A June 21, 1983 Supplemental Narrative was prepared by Volusia County law enforcement. According to this report, Mr. Harper indicated that he and four other individuals had traveled from Tennessee to Daytona for the 500 in February of 1982. The group included Roy Swafford. According to Mr. Harper, "SWAFFORD then left by himself late in the evening of 2/13/82 and remained gone the entire night not returning until late in the morning of 2/14/82." (PC-R4T. Def. Exh. 8 at 2). Mr. Harper was serving a seven year sentence for "his part in the burglary of a motor home and the shooting of the motor home’s occupants." (PC-R4T. Def. Exh. 8 at 1). This crime had occurred on June 19, 1982, in Bay County, Florida. (R. 1440-43). Mr. Swafford was Mr. Harper’s co-defendant in that case. Mr. Harper told Volusia County authorities that, after Mr. Harper’s arrest in Bay County, "SWAFFORD apparently tried to put the entire blame on [Harper]." (PC-R4T. Def. Exh. 8 at 5).

Before contacting the authorities about the Rucker homicide, Mr. Harper had contacted an attorney in the Daytona Beach area, Mr. John Tanner. (PC-R4T. Def. Exh. 8 at 5). Mr. Harper had told Mr. Tanner that he, Harper, "might have information on a murder. He stated that he received two letters from John Tanner indicating that the information appeared to be good, and that he wanted $3,000.00 to represent him." (PC-R4T. Def. Exh. 8 at 5).

Employees from the Shingle Shack were called at Mr. Swafford’s trial to testify regarding the seizure of the gun at the Shingle Shack on February 14, 1982. Clark Bernard Griswold and Karen Sarniak gave two totally different versions as to where this weapon had been seized. Indeed, Mr. Griswold could not identify Mr. Swafford as the individual whom he believed had left a gun in the Shingle Shack on the evening of February 14, 1982. (R. 1042). Mr. Griswold said that he saw an individual acting suspiciously when the police arrived. The individual briefly went into the men’s restroom. (R. 1045). Even though he didn’t see a gun on this individual or see the individual hide a gun(R. 1051), Mr. Griswold testified that he somehow knew that the individual had hidden a gun in the men’s restroom. (R. 1045). After subsequently searching the men’s restroom, Mr. Griswold retrieved a gun from a three foot high trash can in the men's restroom. Mr. Griswold gave it to the police after the suspicious individual was taken into police custody and no gun was found on that person. (R. 1059). Mr. Griswold related that the individual in question, at the time of his arrest, was wearing only jeans and a black t-shirt. (R. 1052). The individual was not wearing a leather jacket, as Mr. Harper had indicated that Mr. Swafford was wearing. (R. 825). The other State’s witness, Karen Sarniak, specifically remembered and identified Mr. Swafford at his trial. However, she stated that she actually observed Mr. Swafford putting a gun in a wastepaper basket in the ladies’ restroom (R. 1093-1094). She remembered this because Mr. Swafford had asked her to "first look in to make sure there wasn’t anybody else in there." (R. 1096). She then accompanied him into the ladies’ restroom and she watched as he took "a gun on his person [and] put [it] in the trash." (R. 1096). He had also asked her to "make sure no one came in" while he was in the ladies’ restroom. (R. 1097). She also testified that she never saw the police actually seize the weapon from the ladies’ restroom. (R. 1094). A police officer testified that the gun taken into custody was the one provided by Mr. Griswold which Mr. Griswold indicated came from the men’s restroom at the Shingle Shack. (R. 1062).

At Mr. Swafford’s trial, the State relied heavily on the gun which had been seized at the Shingle Shack on February 14, 1982 and which the State argued had been in Mr. Swafford’s possession. The State’s reliance on this gun is not surprising given the fact that no scientific evidence in any way linked Mr. Swafford to the victim in this case. There was no hair, fiber, finger prints, blood or any other forensic evidence linking Mr. Swafford to the crime.

STANDARD OF REVIEW

This is an appeal from the circuit court’s order summarily denying Mr. Swafford’s Rule 3.850 motion. The circuit court’s order is reviewed de novo.

SUMMARY OF THE ARGUMENT

1. The circuit court erred in summarily denying Mr. Swafford’s Rule 3.850 claim that the State’s destruction of evidence violated his due process rights.

2. The circuit court erred in denying Mr. Swafford’s claim that his sentence of death was imposed in violation of his Sixth Amendment rights as explained by the United States Supreme Court in Ring v. Arizona.

ARGUMENT I

The rule is the same for a second postconviction motion, where allegations of previous unavailability of new facts, as well as diligence of the movant, is that such claims warrant evidentiary development if disputed or if a procedural bar does not "appear[] on the face of the pleadings." Card v. State, 652 So. 2d 344, 346 (Fla. 1995); Swafford v. State, 679 So.2d 736 (Fla. 1996); Roberts v. State, 678 So.2d 1232 (Fla. 1996); Scott v. State, 657 So.2d 1129 (Fla. 1995).

Factual allegations as to the merits of a constitutional claim as well as to issues of diligence must be accepted as true, and an evidentiary hearing is warranted if the claims involve "disputed issues of fact." Maharaj v. State, 684 So. 2d 726, 728 (Fla. 1996). In his Rule 3.850 motion, Mr. Swafford alleged:

(PC-R6. 20)(emphasis added).

In denying Mr. Swafford’s claim without granting an evidentiary hearing, the circuit court failed to accept the factual allegation as true. This was error. The order denying must be vacated and the matter remanded.

B. This Court Should Address Whether Bad Faith Must Be Shown.

Several other states have, on state law grounds, chosen to apply the less-harsh standard from either Justice Stevens’ concurrence or the dissenting opinion rather than the next-to-impossible "bad faith" standard. "[T]he majority of the states that have considered Youngblood in relation to their state constitutions have rejected the majority opinion." State v. Krantz, 1998 WL 3621 at n.2 (Tenn. App. 1999). Mr. Swafford submits that the Florida courts should recede from adherence to the majority opinion in Youngblood. This is particularly important in light of the ever-changing advances in scientific technology which require preservation of old evidence; such advances, and the well-publicized exonerations of inmates all over the country, give law enforcement a motive to "lose" or destroy evidence. See Confronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1557 (May, 1995) (noting that "prosecutors and state officials under political pressure to reduce crime, as well as those with a firm belief in finality, may feel induced to destroy evidence as soon as the appeals process is initially exhausted. The supposed incentives that generally provide the state with a reason to preserve opaque evidence, if they exist prior to conviction, would virtually disappear after conviction. Cost and finality considerations may well push aside concerns about the convicted innocent, absent constitutional and legislative directions to the contrary"). The identity of the perpetrator of the sexual assault and murder of Ms. Rucker was disputed at trial and during all the intervening years of post-conviction litigation. In light of this dispute, the State’s destruction of Ms. Rucker’s blood samples violated due process.

Moreover, §925.11, Fla. Stat., adopted in 2001, extended to convicted criminal defendants the substantive right to obtain DNA testing in order to challenge their conviction or sentence. When this Court issued Fla. R. Crim P. 3.853, it established the court procedure to be employed when exercising that substantive right. Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d 633 (Fla. 2001). Rule 3.853 sets forth the pleading requirements to be used by a convicted defendant to obtain DNA testing of biological evidence. "[T]he purpose of section 925.11 and rule 3.853 is to provide defendants with a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’" Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2nd DCA 2002), quoting In re Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853, 807 So.2d at 636 (Anstead, J., concurring).

Where the State of Florida extends a right or a liberty interest, the right or liberty interest may only be extinguished in a manner that comports with due process. This was explained by the United States Supreme Court in Evitts v. Lucey, 469 U.S. 387 (1985). There, the Court noted that the States were not required to provide a right to a direct appeal of a criminal conviction. However, where the right was nonetheless extended, due process protection attached:

The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due process norms. For instance, although a State may chose whether it will institute any given welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause.

Evitts, 469 U.S. at 400-01.

Having extended to Mr. Swafford a right to obtain DNA testing of the physical evidence in his case, the State of Florida can only extinguish that right in a manner that comports with due process. To deny Mr. Swafford DNA testing of the available physical evidence while other similarly situated capital defendants have received such testing demonstrates an arbitrary process that violates the Eighth and Fourteenth Amendments. The State cannot be permitted to defeat this right merely by asserting the evidence has been destroyed. There must be an obligation imposed upon the State to preserve the physical evidence.

To the extent that the State has relied upon its destruction of the physical evidence to deny Mr. Swafford his substantive right to DNA testing of the physical evidence, he has been denied due process of law. When the State’s newly revealed destruction of physical evidence is considered cumulatively with the other evidence of innocence, a new trial is warranted. Lightbourne v. State, 742 So. 238 (Fla. 1999); State v. Gunsby, 670 So.2d 920 (Fla. 1996). Here, three justices of this Court have already concluded, based upon the exculpatory evidence developed during the postconviction process, that Mr. Swafford’s jury probably would have acquitted him had it been informed of this evidence. Swafford v. State, 828 So. 2d at 985 (Quince, J., dissenting). Surely, the State’s destruction of physical evidence tips the scales and requires a new trial. At the very least, the circuit court should be compelled to evaluate all of the exculpatory evidence cumulatively when passing upon Mr. Swafford’s due process claim on remand.

ARGUMENT II

[W]e overrule Walton [v. Arizona, 497 U.S. 639 (1990),] to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. . . . Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury.

Ring, 536 U.S. at 609 (citations omitted). This was in conformity with its earlier ruling in Apprendi v. New Jersey, where the Supreme Court held, "If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact--no matter how the State labels it--must be found by a jury beyond a reasonable doubt." 530 U.S. at 482-83. Ring applied Apprendi to the category of capital murder cases and concluded any fact rendering a person eligible for a death sentence is an element of the offense. 536 U.S. at 604, quoting Apprendi, 530 U.S. at 494 ("In effect, ‘the required finding [of an aggravating circumstance] expose[d] [Ring] to a greater punishment than that authorized by the jury’s guilty verdict’").

The Supreme Court has even more recently elaborated upon the meaning of Ring. In Sattazahn v. Pennsylvania, 123 S.Ct. 732, 739 (2003), the Supreme Court explained:

Put simply, if the existence of any fact (other than a prior conviction) increases the maximum punishment that may be imposed on a defendant, that fact–-no matter how the State labels it–-constitutes an element, and must be found by a jury beyond a reasonable doubt.

In Ring, the Supreme Court noted that Arizona was one of five states that committed sentencing factfinding and the ultimate sentencing decision to judges. Ring, 536 U.S. at 609 n. 6 (the other four were identified as Colorado, Idaho, Montana, and Nebraska). The Supreme Court further noted that four additional states had hybrid capital sentencing schemes. Id. (Alabama, Delaware, Florida, and Indiana). Subsequently, it has been recognized that additional hybrid states were overlooked by the United States Supreme Court. Johnson v. State, 59 P.3d 450, 460 (Nev. 2002)(under Nevada law, the judge determines the sentence in a capital case if the jury is unable to return a unanimous verdict imposing either a death or a life sentence); State v. Whitfield, 2003 WL 21386276 (Mo. June 17, 2003)(under Missouri law, the judge determines the sentence in a capital case if the jury is unable to return a unanimous verdict imposing either a death or a life sentence). Even in a state with jury sentencing in capital cases, error has been found. In Esparza v. Mitchell, 310 F.3d 414 (6^th Cir. 2002), the Sixth Circuit granted federal habeas relief because the jury was not required to return a verdict identifying the aggravating factors that were present and that rendered the defendant death eligible under state law.

In denying Mr. Swafford’s Rule 3.850 motion, the circuit court failed to look at the jurisprudence that has developed in the wake of Ring. Not surprisingly, the states labeled by the United States Supreme Court as being in the same category as Arizona have generally recognized that Sixth Amendment error pervades their capital sentencing schemes. State v. Fetterly, 52 P.3d 875 (Idaho 2002)(in light of Ring, death sentence vacated and remanded for further proceedings); State v. Gales, 658 N.W.2d 604, 624 (Neb. 2003)("It is clear that the jury made no explicit determination that any of the statutory aggravating circumstance existed in this case. Instead, that determination was made by a judge."); Woldt v. People, 64 P.3d 256 (Colo. 2003)(death sentences vacated in consolidated direct appeal for two of the three individuals sentenced to death under 1995 scheme providing for three-judge panel to conduct capital sentencing factfinding and cases remanded for the imposition of life sentences); State v. Ring, 65 P.3d 915 (Ariz. 2003)(in a consolidated case involving those on Arizona’s death row, Arizona Supreme Court established parameters for evaluating each case for harmless error analysis). Each of these states has found that the necessary facts under Ring to render the defendant death eligible were not made by the jury at the guilt phase of the capital case.

Another case further illuminates Indiana law and its interplay with Ring. In Overstreet v. State, 783 N.E.2d 1140, 1160-61 (Ind. 2003)(emphasis added), while addressing a capital case, the Indiana Supreme Court explained, "[u]nder the terms of our death penalty statute, before a jury can recommend a sentence of death, it must unanimously find that one or more of the charged aggravating circumstances was proven beyond a reasonable doubt." In Overstreet, the defense had requested to have a special finding to this effect made by the jury. The Indiana Supreme Court noted that on the basis of Hildwin v. Florida, 490 U.S. 638 (1989), the trial court had denied the requested special verdict. No reversible error was found because the jury had been explicitly instructed that this unanimous finding beyond a reasonable doubt was necessary before it could return a death recommendation.

In another hybrid state, the Delaware legislature enacted legislation following the decision in Ring. In pending capital prosecutions, four questions were certified to the Delaware Supreme Court in light of the new legislation passed in an effort to conform with Ring. The Delaware Supreme Court thereupon undertook a review of Delaware’s capital sentencing scheme. Brice v. State, 815 A.2d 314, 322 (Del. 2003). The new statutory language provided that a death sentence could not be imposed unless "a jury (unless waived by the parties) first determines unanimously and beyond a reasonable doubt that at least one statutory aggravating circumstances exists." Further under Delaware law, first degree murder was defined by the statute in seven alternative ways. Delaware Code, Title 11, §636(a)(1-7). According to Delaware law, "[i]n any case where the defendant has been convicted of murder in the first degree in violation of any provision of §636(a)(2)-(7) of this title, that conviction shall establish the existence of a statutory aggravating circumstance and the jury, or judge where appropriate, shall be so instructed." Delaware Code, Title 11, §4209(e)(2). Thus, the Delaware legislature had defined first degree murder on the basis of the presence of six alternative aggravating circumstances and determined that a finding by the jury of the presence of one these circumstances constituted capital first degree murder subject to the death penalty. Accordingly, the Delaware Supreme Court found that the provisions complied with Ring. Brice, 815 A.2d at 322-23.

In Brice, the Delaware Supreme Court indicated that it would review cases in which death had been imposed under the old law case-by-case to determine whether any Ring error was harmless or whether relief was warranted. Subsequently, the court has issued opinions. Garden v. State, 815 A.2d 327, 342 n.4 (Del. 2003)(death sentence vacated in an override case because judge failed to give life recommendation sufficient weight; therefore the Ring challenge was held to be moot); Reyes v. State, 819 A.2d 305, 316 (Del. 2003)(jury that returned a nine to three death recommendation had first explicitly and unanimously found during the guilt phase a statutory aggravator; therefore relief was denied).

The Alabama Supreme Court has also analyzed its capital sentencing provisions in light of Ring. The Alabama Supreme Court has explained that under Alabama’s statutory definition of capital first degree murder, the jury must find an aggravating circumstance at the guilt phase of a capital trial to render a defendant death-eligible. Ex parte Waldrop, – So.2d –, 2002 Ala. LEXIS 336, *13 (Ala. November 22, 2002)("‘Unless at least one aggravating circumstance as defined in Section 13A-5-49 exists, the sentence shall be life imprisonment without parole.’"); Martin v. State, – So.2d – , 2003 Ala. Crim. App. LEXIS 136, *55 (Ala. App. May 30, 2003)("the jury in the guilt phase entered a verdict finding Martin guilty of capital murder because it was committed for pecuniary gain. Murder committed for pecuniary gain is also an aggravating circumstance"). Thus, like Delaware, Alabama provides that unless there is a finding of an aggravating circumstance at the guilt phase proceeding, the sentence is life imprisonment. This clearly distinguishes Alabama law from Florida law in a critical fashion.

In the second, or "penalty" phase, the jury is required to be instructed to follow the four-step process set out in section 565.030.4:

The trier shall assess and declare the punishment at life imprisonment without eligibility for probation, parole, or release except by act of the governor:

(1) If the trier does not find beyond a reasonable doubt at least one of the statutory aggravating circumstances set out in subsection 2 of section 565.032; or

(2) If the trier does not find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating circumstances listed in subsection 2 of section 565.032, warrants imposing the death sentence; or

(3) If the trier concludes that there is evidence in mitigation of punishment, including but not limited to evidence supporting the statutory mitigating circumstances listed in subsection 3 of section 565.032, which is sufficient to outweigh the evidence in aggravation of punishment found by the trier; or

(4) If the trier decides under all of the circumstances not to assess and declare the punishment at death.

Id . Section 565.030.4 on its face requires that steps 1, 2, 3, and 4 be determined against defendant before a death sentence can be imposed. Id.; see Whitfield, 837 S.W.2d 503, 515 (Mo. banc 1992).

Step 1. Step 1 requires the trier of fact to find the presence of one or more statutory aggravating factors set out in section 565.032.2. Both the State and Mr. Whitfield agree that this is a fact that normally must be found by the jury in order to impose a sentence of death.

The State contends that steps 2, 3, and 4 merely call for the jury to give its subjective opinion as to whether the death penalty is appropriate, however, not to make findings as to whether the factual predicates for imposing the death penalty are present. It urges that the principles set out in Ring are not offended even if the judge rather than the jury determines those three steps. This Court disagrees.

Step 2. Step 2 requires the trier of fact (whether jury or judge) to find that the evidence in aggravation of punishment, including but not limited to evidence supporting the statutory aggravating factors, warrants imposition of the death penalty. As noted, the State argues that this step merely calls for a subjective opinion by the trier of fact, not a finding. But, the State fails to note that this Court rejected this very argument in its opinion on Mr. Whitfield's appeal of his initial conviction, in which it remanded for the new trial at issue here. In that decision, this Court held that step 2 requires a "finding of fact by the jury, not a discretionary decision." Whitfield, 837 S.W.2d at 515 . This holding is supported by the plain language of the statute. In order to fulfill its duty, the trier of fact is required to make a case-by-case factual determination based on all the aggravating facts the trier of fact finds are present in the case. This is necessarily a determination to be made on the facts of each case. Accordingly, under Ring, it is not permissible for a judge to make this factual determination. The jury is required to determine whether the statutory and other aggravators shown by the evidence warrants the imposition of death. . . .

Step 3. In step 3 the jury is required to determine whether the evidence in mitigation outweighs the evidence in aggravation found in steps 1 and 2. If it does, the defendant is not eligible for death, and the jury must return a sentence of life imprisonment. While the State once more argues that this merely calls for the jury to offer its subjective and discretionary opinion rather than to make a factual finding, this Court again disagrees.

The analysis undertaken in three recent decisions by other state courts of last resort, interpreting similar statutes, is instructive. In Woldt v. People, 64 P.3d 256 (Colo. 2003), the Supreme Court of Colorado reversed the death sentences of two capital defendants after determining that Colorado's three-judge capital sentencing statute was unconstitutional in light of Ring. Colorado's death penalty statute, like Missouri's, requires the fact-finder to complete a four-step process before death may be imposed. First, at least one statutory aggravator must be found. Second, whether mitigating factors exist must be determined. Third, mitigating factors must not outweigh the aggravating factors. Finally, whether death is the appropriate punishment is considered.

The Supreme Court of Colorado described the first three of these four steps as findings of fact that are "prerequisites to a finding by the three-judge panel that a defendant was eligible for death." Woldt, 64 P.3d at 265. It noted that states are sometimes grouped into "weighing states" that require the jury to weigh the aggravating circumstances against those in mitigation in arriving at their determination of punishment, and "non-weighing states." It explained that, while in steps 1, 2, and 3 the jury is permitted to consider and weigh aggravators and mitigators, and to that extent Colorado's process is like that used in weighing states, Colorado is a non-weighing state in that, in step 4, in which the jury decides whether to impose death or to give a life sentence, the jury is permitted to consider all of the evidence without being required to give special significance to the weight of statutory aggravators or mitigators. Id. at 263-64 . This last step thus "affords the sentencing body unlimited discretion to sentence the defendant to life imprisonment instead of death." Id. at 265 . Because Colorado's death penalty statute required a three-judge panel to make the first three of these findings, the statute was declared unconstitutional. Id. at 266-67.

Similarly, in Johnson v. State, 59 P.3d 450 (Nev. 2002), Nevada's Supreme Court considered the constitutionality of its capital sentencing scheme in light of Ring. Its sentencing scheme provides for a three-judge panel to determine punishment if the jury is unable to do so. Johnson noted that Nevada "statutory law requires two distinct findings to render a defendant death-eligible: 'the jury or the panel of judges may impose a sentence of death only if it finds at least one aggravating circumstance and further finds that there are no mitigating circumstances sufficient to outweigh the aggravating circumstance or circumstances found.'" Johnson, 59 P.3d at 460 (citation omitted).

Johnson determined the requisite statutory finding that the mitigating circumstances are not sufficient to outweigh the aggravating circumstances is at least "in part a factual determination, not merely discretionary weighing." Id. at 460 . It held that, as a result, the rule announced in Ring required a jury rather than a judge to determine the mitigating as well as the aggravating factor issues. Id.

Finally, on remand from the United States Supreme Court, the Supreme Court of Arizona rejected the state's contention that the requirement of Arizona law -- that the court weigh mitigating circumstances against aggravating circumstances -- did not require a factual determination, stating:

In both the superseded and current capital sentencing schemes, the legislature assigned to the same fact-finder responsibility for considering both aggravating and mitigating factors, as well as for determining whether the mitigating factors, when compared with the aggravators, call for leniency. Neither a judge, under the superseded statutes, nor the jury, under the new statutes, can impose the death penalty unless that entity concludes that the mitigating factors are not sufficiently substantial to call for leniency. A.R.S. [sections] 13-703.E (Supp.2002) and 13-703.F (Supp.2001). The process involved in determining whether mitigating factors prohibit imposing the death penalty plays an important part in Arizona's capital sentencing scheme.

Ring II, 65 P.3d at 943 (emphasis added). The Court continued:

We will not speculate about how the State's proposal [to allow the judge to make these findings] would impact this essential process. Clemons v. Mississippi, 494 U.S. 738, 754, 110 S.Ct. 1441, 1451, 108 L.Ed.2d 725 (1990) ('In some situations, a state appellate court may conclude that peculiarities in a case make appellate...harmless error analysis extremely speculative or impossible.'); see also Johnson v. Nevada , 59 P.3d 450 (Nev. 2002) (as applied to Nevada law, Ring... requires [a] jury to weigh mitigating and aggravating factors under Nevada's statute requiring the fact-finder to further find whether mitigating circumstances are sufficient to outweigh the aggravating circumstances).

Id. Accordingly, the Court held that, even were the presence of a statutory aggravator conceded or not contested, resentencing would be required unless the court found that the failure of the jury to make these factual findings was harmless on the particular facts of the case. Id. This was a necessary result of applying Ring's holding that "[c]apital defendants...are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." Ring, 536 U.S. at 589.

Missouri's steps 1, 2, and 3 are the equivalent of the first three factual determinations required under Colorado's death penalty statute, so that, as in Colorado, the jury is told to find whether there are mitigating and aggravating circumstances and to weigh them to decide whether the defendant is eligible for the death penalty. These three steps are also similar to the aggravating and mitigating circumstance findings required under Nevada and Arizona law. As in those states, these three steps require factual findings that are prerequisites to the trier of fact's determination that a defendant is death-eligible.

State v. Whitfield, 2003 WL 21386276 (Mo. June 17, 2003) (footnote omitted).

The three steps in Florida’s statute, like the steps in Missouri, also "require factual findings that are prerequisites to the trier of fact’s determination that a defendant is death-eligible." Step 1 in the Florida procedure requires determining whether at least one aggravating circumstance exists. As in Missouri, Colorado, Indiana, Delaware, Arizona, and Nevada, this step involves a factual determination which is a prerequisite to rendering the defendant death-eligible.

Step 2 in the Florida procedure requires determining

whether "sufficient" aggravating circumstances exist to justify imposition of death. Missouri’s Step 2 is indistinguishable, requiring a determination of whether the evidence of all aggravating circumstances "warrants imposing the death sentence." This step is obviously not the ultimate step of determining whether death will or not be imposed because other steps remain. Rather, in Florida as well as Missouri, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible.

Step 3 in the Florida procedure requires determining whether "there are insufficient mitigating circumstances to outweigh the aggravating circumstances." Missouri’s and Colorado’s Step 3, as well as Nevada’s and Arizona’s Step 2, are identical, requiring a determination of whether mitigating circumstances outweigh aggravating circumstances. Again, this step is not the ultimate determination of whether or not to impose death because an additional step remains. Rather, in Florida as well as these other states, this step involves a factual determination which is a prerequisite to rendering a defendant death-eligible.

The question which Ring v. Arizona decided was what facts constitute "elements" in capital sentencing proceedings. Following the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), Mr. Ring raised an Apprendi challenge to his death sentence. In addressing that challenge, the Arizona Supreme Court stated that the United States Supreme Court’s description of Arizona’s capital sentencing scheme contained in Walton v. Arizona, 497 U.S. 639 (1990), was incorrect and provided the correct construction of the scheme. Ring, 122 S. Ct. at 2436. Based upon this correct construction, the United States Supreme Court then determined that Walton "cannot survive the reasoning of Apprendi." Ring, 122 S. Ct. at 2440.

The bulk of the Ring opinion addresses how to determine whether a fact is an "element" of a crime. See Ring, 122 S. Ct. at 2437-43. The question in Ring was not whether the Sixth Amendment requires a jury to decide elements. That has been a given since the Bill of Rights was adopted. The question was what facts are elements. Justice Thomas explained this in his concurring opinion in Apprendi:

This case turns on the seemingly simple question of what constitutes a "crime." Under the Federal Constitution, "the accused" has the right (1) "to be informed of the nature and cause of the accusation" (that is, the basis on which he is accused of a crime), (2) to be "held to answer for a capital, or otherwise infamous crime" only on an indictment or presentment of a grand jury, and (3) to be tried by "an impartial jury of the State and district wherein the crime shall have been committed." Amdts. 5 and 6. See also Art. III, [Sec.] 2, cl. 3 ("The Trial of all Crimes . . . shall be by Jury"). With the exception of the Grand Jury Clause, see Hurtado v. California, 110 U.S. 516, 538 . . . (1884), the Court has held that these protections apply in state prosecutions. Herring v. New York, 422 U.S. 853, 857, and n.7 . . . (1975). Further, the Court has held that due process requires that the jury find beyond a reasonable doubt every fact necessary to constitute the crime. In re Winship, 397 U.S. 358, 364 . . . (1970).

All of these constitutional protections turn on determining which facts constitute the "crime"--that is, which facts are the "elements" or "ingredients" of a crime. In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, it must allege all elements of that crime; likewise, in order for a jury trial of a crime to be proper, all elements of the crime must be proved to the jury (and, under Winship, proved beyond a reasonable doubt).

Apprendi, 120 S. Ct. at 2367-68 (Thomas, J., concurring) (emphasis added). Justice Thomas explained that courts have "long had to consider which facts are elements," but that once that question is answered, "it is then a simple matter to apply that answer to whatever constitutional right may be at issue in a case--here, Winship and the right to trial by jury." Id. at 2368.

The essence of criminal law is the definition of the offense. Jones v. United States, 526 U.S. 227 (1999), construed the federal statute at issue in that case, and stated that facts which increase the maximum punishment for an offense are elements of the offense. Apprendi applied the well-established rule that elements must be found by a jury and determined that the sentencing factor identified by the New Jersey legislature was in fact an element. Ring merely held that based upon the clarification of the Arizona statute provided by the Arizona Supreme Court, aggravating circumstances in Arizona were elements subject to the Sixth Amendment right to a jury trial.

Ring’s requirement that juries, not judges, find the elements of the charge is derived from ancient principles of law: "The principle that the jury were the judges of fact and the judges the deciders of law was stated as an established principle as early as 1628 by Coke. See 1 E. Coke, Institutes of the Laws of England 155b (1628)." Jones, 526 U.S. at 247. Walton did not contravene those principles but simply misread the Arizona statute. The Ring decision merely rejuvenated the longstanding rule which Walton temporarily rejected.

The Framers of the Bill of Rights included the Sixth Amendment’s guarantee of a right to jury trial as an essential protection against government oppression. "Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Duncan v. Louisiana, 391 U.S. 145, 156 (1968). Only by maintaining the integrity of the factfinding function does the jury "stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction." United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977). Thus, the adoption of the jury trial right in the Bill of Rights establishes the Founders’ recognition that a jury trial is more reliable than a bench trial.

This Court in its prior decisions denying relief under Ring v. Arizona has overlooked the post-Ring jurisprudence from other state and federal courts. These decisions demonstrate that the circuit court erroneously denied Mr. Swafford’s arguments that he was deprived of his Sixth Amendment rights at his trial and that his death sentence was unconstitutionally imposed.

CONCLUSION

For all of the foregoing reasons, this Court should vacate the circuit court’s order denying Mr. Swafford’s Rule 3.850 motion and remand the matter for further proceedings.

CERTIFICATE OF SERVICE

MARTIN J. MCCLAIN

Special Assistant CCRC-South

Florida Bar No. 0754773

141 N.E. 30^th Street

Wilton Manors, FL 33334

(305) 984-8344

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Swafford

CERTIFICATE OF FONT

This is to certify that this Initial Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.

______________________________