IN THE SUPREME COURT OF FLORIDA

Appellant,

v.

RUDOLPH HOLTON,

Appellee.

___________________________/

APPELLEE’S MOTION TO EXPEDITE APPELLATE PROCEEDINGS

AND DEMAND FOR SPEEDY TRIAL

COMES NOW the Appellee, RUDOLPH HOLTON, and respectfully requests that this Court set an accelerated and expedited briefing schedule from the Notice of Appeal filed by Appellant on November 13, 2001, relating to the circuit court’s order granting Mr. Holton a new trial on November 2, 2001. Mr. Holton seeks to vindicate his right to a speedy trial. In support thereof, Appellee shows:

1. Mr. Holton was sentenced to death at the conclusion of his trial in 1986, and has been incarcerated on Florida’s death row for fifteen years. On direct appeal, this Court affirmed the death sentenced. Holton v. State, --- So.2d --- (Fla. 199-). In 199-, Mr. Holton filed a Rule 3.850 motion. In 2000, the State conceded that Mr. Holton was entitled to a new sentencing proceeding because the State had drafted on an ex parte basis the findings in support of the death sentence signed by Judge Coe.

2. Mr. Holton also sought DNA testing of a hair found in the victim’s mouth that the prosecutor had argued at trial came from the perpetrator of the rape/murder. The testing was permitted, and the results established that DNA in the hair matched the victim’s DNA. At an evidentiary held in April of 2001, Mr. Holton presented the results of the DNA analysis along evidence of several Brady violations and a claim of ineffective assistance of counsel. Closing arguments were held on June 29, 2001.

3. On November 2, 2001, a hearing was held so that the circuit court could announce its ruling. At that time, the court entered an order granting Mr. Holton a new trial. The circuit court order found that Mr. Holton was entitled to a new trial based upon Brady violations and newly discovered evidence. The judge scheduled a hearing for November 19, 2001, to address any other matters.

4. On Tuesday, November 6, 2001, the State filed a Notice of Hearing, scheduling a hearing for Thursday, November 8^th, at 8:30 a.m.; and a Motion for Return of Property with a proposed order. Ms. McDermott and Mr. McClain were each conducting evidentiary hearings in other cases and unable.

5. When her hearing recessed on the 6^th after 5:30 p.m., Ms. McDermott contacted her office and asked that a motion to cancel hearing be filed. The motion was filed on Wednesday, November 7^th. (Attachment C). After her hearing recessed on Wednesday, again after 5:30 p.m., Ms. McDermott contacted her office and was unable to confirm that the hearing had been canceled. Ms. McDermott arranged for a staff attorney with CCRC-North, who happened to be in Tampa, to appear in court and be prepared to argue the Motion to Cancel Hearing.

6. On Thursday morning, November 8^th, the State called Mr. Holton’s case. Mr. Chalu informed the court that he received CCRC-North’s motion to cancel the hearing, but argued that:

We have a CCR representative here, but, Judge, the point I’m trying to make here is very simple. First of (sic) this is an administerial (sic) act.

We are now in a pre-trial posture. We are not in a post conviction posture because the Court granted a new trial. Under Florida Statute, CCR is not authorized to represent defendants on new trials among other things other than in post conviction proceedings so, Judge first of all, I believe that CCR has no standing to object and secondly, if they do on the merits the State is entitled to have their property back because we need to properly have it tested and get it ready for any prospective future trial if in fact that’s what occurs.

 

(November 8, 2001, Hearing p. 3)(hereinafter Attachment D)(emphasis added). Then, Mr. Chalu informed the court that he intended to appeal the order granting Mr. Holton a new trial. Judge Perry indicated that he would not inclined to release the evidence because if an appeal was filed, the case would not in a pre-trial posture, but still in a post-conviction posture.

7. Mr. Chalu informed the court about the purpose of his request:

. . . if the appellate court upholds this Court’s order and grants a new trial we’re going to be in a posture where we have to try this case within 90 days less the time that’s already run since the order was entered.

In the alternative if there is a demand for speedy trial we’ll have to try the case within 45 days after the mandate comes down if this Court's order is affirmed and, Judge, we need time to do this testing.

(Attachment D, p. 4)(emphasis added). Clearly, the State’s intent was to use the appeal in order to defeat Mr. Holton’s right to speedy trial. This is like filing an indictment and then asking for an abeyance of the speedy trial clock while the State looks for some evidence to support the indictment.

8. Judge Perry asked Mr. Chalu that "if you appeal it, it is in a post conviction posture because that kind of stays everything, doesn’t it?" (Attachment D, p. 5). After the State urged Judge Perry to nonetheless release the evidence, the judge asked: "[S]houldn't someone be representing [Mr. Holton] at this point? [Mr. Holton] is not here." (Id.). Mr. Chalu asserted that Mr. Holton did not need to be represented for purposes of the motion.

9. At that point, Jeff Hazen on behalf of CCRC-North informed the court that Mr. Holton’s counsel objected to releasing the evidence. (Attachment D, p. 7). Thereafter, the court scheduled a hearing for November 13^th in order to appoint Mr. Holton an attorney and address the State’s motion.

10. On November 13, 2001, Linda McDermott and Martin J. McClain appeared on behalf Rudolph Holton. Mr. Holton was also present. At the hearing, Mr. Chalu again requested that the court release the exhibits so that it could conduct new testing on the physical evidence in order to prepare for trial while the appeal was pending. (November 13, 2001, hearing, p.4)(hereinafter Attachment E). Mr. Chalu indicated that the State would be unprepared for trial if it waited until after the appeal was over to commence the testing and forensic investigation. Over undersigned’s objection, Judge Perry granted the State’s motion. (Attachment E, p. 7)

11. The State’s motives were further revealed when shortly thereafter, the State recalled Mr. Holton’s case and filed a written motion seeking an extension of the speedy trial clock. (Attachment F). Over undersigned’s objection, Judge Perry granted the State’s motion. (Attachment E, p. 8). The State’s desperate need to delay Mr. Holton’s case and his right to a speedy trial some fifteen (15) years after he was first indicted reveals the true purpose of its appeal, to delay Mr. Holton’s case and keep him incarcerated while it searches for some new evidence of guilt.

12. Undersigned beseeches this Court to expedite the appellate proceedings. Mr. Holton has been on death row since 1986. It is fundamental unfair for the State now to say that it needs more time to investigate and find evidence against Mr. Holton. Mr. Chalu made the State’s intentions very clear: The State is preparing for trial and using the appellate process to delay Mr. Holton’s trial. Mr. Holton is constitutionally entitled to a speedy trial. Rule 3.191, Fla. R. Crim Pro, also provides Mr. Holton with the right to a speedy trial. Mr. Holton simply asks that his right be vindicated.

13. In State v. Mills, SC01-879, Appellant, the State requested that this Court expedite the appeal after the circuit court vacated Mr. Mills’ death sentence and ordered a re-sentencing. (Attachment H). The State argued that Mr. Mills was under active death warrant and: "The issues before this Court are not complex, and can be resolved on an expedited basis. Moreover, those issues should be resolved on an expedited basis so that this case, which involves a 1979 murder, can be finally concluded." (Attachment H)(emphasis added). Mr. Holton recognizes that there is no death warrant pending against him. However, that should not operate to his detriment. Surely, the State is not the only party who can obtain expedited review of a decision granting Rule 3.850 relief.

14. After the Appellant filed an Initial Brief within days after the order, this Court granted Appellant, the State’s motion and ordered Mr. Mills to file his brief within seventeen (17) days of the circuit court’s order granting relief. (Attachment I). Oral argument was heard and this Court entered an order affirming the circuit court on June 8, 2001 -- just over a month after the circuit court granted relief.

15. Mr. Holton has been incarcerated since June 23, 1986. He was convicted and sentenced to death in December, 1986. He has spent almost fifteen and one-half (15 1/2) years in prison, nearly fifteen (15) of which have been spent incarcerated on death row. Mr. Holton has always maintained his innocence. The circuit court vacated Mr. Holton’s conviction and ordered an new trial based on Brady violations committed by the State at his capital trial in 1986 and also on newly discovered evidence of favorable mitochondrial DNA results.

16. Mr. Holton, like the State in Mills, has an interest in finality. However, in Mr. Holton’s case the finality is not death but a new and speedy trial, pursuant to Rule 3.191, after which he will most likely regain his liberty.

17. Mr. Holton can comply with an expedited briefing schedule and be ready for oral argument as soon as the Court can set the argument.

WHEREFORE, Appellee respectfully requests that this Court set an expedited briefing schedule and schedule oral argument as soon as possible in order to determine whether or not the circuit court erred in granting Mr. Holton a new trial.

I HEREBY CERTIFY that true and correct copies of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record on this day of November, 2001.

MICHAEL P. REITER

Capital Collateral Counsel

Northern Region

Florida Bar No. 0320234

LINDA McDERMOTT

Florida Bar No. 0102857

Assistant CCC - Northern Region

MARTIN J. MCCLAIN

Special Assistant CCRC-North

1533-B South Monroe Street

Tallahassee, FL 32301

(850)488-7200

Attorneys for Mr. Holton

Copies furnished to:

Candance Sabella

Assistant Attorney General

Office of the Attorney General

2002 N. Lois Avenue, Suite 700

Tampa, Florida 32118-3951