IN THE SUPREME COURT OF FLORIDA

IN THE SUPREME COURT OF FLORIDA

CASE NO. SC01-2671

STATE OF FLORIDA,

Appellant,

RUDOLPH HOLTON,

Appellee.

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APPELLEE’S REPLY TO APPELLANT'S RESPONSE TO

EMERGENCY MOTION TO EXPEDITE APPELLATE PROCEEDINGS

AND DEMAND FOR SPEEDY TRIAL, MOTION TO RETURN EXHIBITS,

OR IN THE ALTERNATIVE, MOTION TO DISMISS APPEAL

COMES NOW the Appellee, RUDOLPH HOLTON, and replies to the State’s response to Emergency Motion to Expedite Appellate Proceedings and Demand for Speedy Trial and Motion to Return Exhibits. In support, Mr. Holton states:

1. On December 4, 2001, Rudolph Holton, through undersigned counsel filed an Emergency Motion to Expedite Appellate Proceedings and Demand for Speedy Trial and an Emergency Motion to Return Exhibits, or in Alternative, Motion to Dismiss Appeal. The State filed a combined response on December 14, 2001, requesting that this Court deny Mr. Holton’s motions.

2. The State in its response first addresses the motion to expedite. In arguing against expediting Mr. Holton’s appeal, the State submits that Mr. Holton’s motion to expedite should be denied because not "every case can be expedited." (Response at 2)(emphasis in original). This assertion overlooks the simple fact that Mr. Holton is not asking to expedite every case; he is only asking to expedite his case.

3. The State does recognize that the State’s appeal from the grant of relief in Gregory Mills’ case was expedited upon the State’s request. However, the State argues the Governor’s action of signing a death warrant distinguishes the situation in State v. Mills from the situation in State v. Holton. But of course that distinction means the power to expedite a case rests only with the State, since it is only the Governor who can sign a death warrant. Providing only one party with the right seek expedited review would surely violate due process.

4. The State argues that Mr. Holton has failed to explain "how his case is any different than any other defendant who maintains his innocence and whose case is pending before this Court for review." Response at 2. In support of this point, the State cites, "Waterhouse v. State, 792 So.2d 238 (Fla. 2001); Way v. State, 760 So.2d 903 (Fla. 2000); Hitchcock v. State, 755 So.2d 638 (Fla. 2000); Atwater v. State, 788 So.2d 223 (Fla. 2001)." However, none of these case involved an appeal by the State following the grant of 3.850 rule relief which ordered a new trial. Additionally, there is no indication that the capital defendants asked for an expedited appeal. The other case cited by the State, State v. Huggins, 788 So.2d 238 (Fla. 2001), did arise from a post-trial order granting a new trial. However, undersigned counsel is unaware of any request in that case for an expedited appeal. Certainly if no request was made by Mr. Huggins, that would distinguish Mr. Huggins’ case from Mr. Holton’s case.

5. Moreover, Mr. Holton relies upon this Court’s decision in Greg Mills’ case to grant a request to expedite. As in that case, Mr. Holton believes that the equities here warrant an expedited briefing schedule and expedited consideration of the State’s challenge to the order granting a new trial. The circuit court granted Mr. Holton a new trial based in part on a Brady claim (a finding which means the State violated Mr. Holton’s constitutional rights in 1986 by suppressing favorable evidence), and in part on a claim of newly discovered evidence of innocence pursuant to Jones v. State, 591 So.2d 911 (Fla. 1991). As to the Brady claim, the circuit court specifically listed eight (8) documents that the State failed to disclose at the time of Mr. Holton’s trial, including a police report sworn to by the victim ten days before her murder accusing David Pearson of violently anally raping her. Unlike the capital cases the State cite, Mr. Holton has already convinced the circuit court that based upon his claims he is entitled to a new trial, the State has filed a notice of appeal, and the State has sought a tolling of Mr. Holton’s constitutional right to a speedy trial. Under these circumstances and the 15 year delay, Mr. Holton believes an expedited appeal is warranted.

6. The State asserts that a thorough review in the appellate process is required, but yet somehow precluded if the appeal is expedited ("unlike the limited issues before this Court in Mills during the pendency of an active death warrant and immediately after this Court had just reviewed the entire Mills record, the claims before this Court in the instant case are complex and will require a thorough review of not only the post-conviction record, including the evidentiary hearing but, also, the transcripts and pleadings from Holton’s direct appeal" Response at 2-3 (emphasis added)). Contrary to the State’s representation, undersigned counsel understood that in evaluating Mr. Mills’ claims (that newly discovered evidence warranted not only a new sentencing, but also a new trial), this Court was obligated to review and did review the entire trial record and the entire record from all prior post-conviction proceedings. In fact, Mr. Holton acknowledges that this Court reviews warrant cases on an expedited basis. Currently, this Court must review three (3) cases wherein defendants face an imminent execution date. All three (3) cases were scheduled for review before this Court on an expedited basis. Appeals made by capital defendants under the imminent threat of execution often involve complicated issues and procedural questions and require review of the direct appeal record. Accordingly, Mr. Holton believes that the procedure employed in this Court’s review of warrant cases should be employed here, and the parties directed to submit briefs on an expedited basis. This is particularly true given the State’s request that Mr. Holton’s right to a speedy trial be tolled.

7. The State takes umbrage at the idea that its decision to appeal and its request for a release of the exhibits in order to conduct new forensic testing were in bad faith. Yet, the State filed an appeal knowing that it has no merit in order to buy time and defeat Mr. Holton’s right to a speedy trial. Simply put, the State is violating Mr. Holton’s constitutional right to a speedy trial. The State in its Response misrepresents the proceedings below regarding the requests for DNA testing. Mr. Holton’s initial motion for DNA testing, in December, 1999, requested that all of the evidence be tested. The State opposed the motion and the circuit court requested Mr. Holton to narrow his request. The State continued to strenuously object to testing which the circuit court allowed and which proved that "false" testimony was presented to the jury. However, the State did not objection to the admission of the results of the testing. At the conclusion of the evidentiary hearing, the circuit court asked if the parties would agree to further DNA testing, specifically the circuit court asked the parties to agree to testing of the black shaving kit that had been found in Mr. Scheck’s truck and had been left by the black male hitchhiker Mr. Scheck had dropped off at the crime scene shortly near the time of the homicide. The parties agreed to the testing which when completed again produced results that were not unfavorable to Mr. Holton. Not until the day of the closing argument, over two (2) months after the evidentiary hearing when both parties rested their cases, did the State indicate that it wanted further testing. It was at that time that Mr. Holton opposed further testing as irrelevant to the issues contained in the Rule 3.850 motion, but conceded that such testing could no doubt occur if the circuit court ordered a new trial and Mr. Holton’s speedy trial clock was ticking.

8. The State’s true motives in this appeal appear in its statement that "ASA Chalu’s comment that the time was needed to test the material seems to be reflective not of denying the defendant a speedy trial but rather an effort to comply with whatever speedy trial rights accrue to Holton." Response at 4. So in order to "comply" with the speedy trial provisions the State filed a notice of appeal, asked to toll the speedy trial provisions, and sought the release of exhibits for testing explaining that there would not be time for testing once this Court remanded for the retrial.

9. So according to the State, Mr. Holton who has spent fifteen years on death row because of a conviction and death sentence now found to have been tainted by Brady error must continue to sit there indefinitely awaiting the standard appellate process which currently is taking years. And according to the State, Mr. Holton’s constitutional right to a speedy trial is not in jeopardy because the State over Mr. Holton’s objection managed to convince the circuit court to toll the speedy trial provisions. Mr. Holton submits that surely the State’s position is not compatible the Sixth, Eighth and Fourteenth Amendments. Having convinced the circuit court after fifteen years on death row that a new trial is warranted, surely Mr. Holton is entitled to have the State’s appeal of that order heard on an expedited basis by this Court.

WHEREFORE, Mr. Holton respectfully requests that this Court set an expedited briefing schedule and schedule oral argument as soon as possible and to order the State to return all exhibits to the clerk of court so that may be available as part of the thorough appellate review process.

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 18^th day of December, 2001.

MICHAEL P. REITER

Capital Collateral Counsel

Northern Region

Florida Bar No. 0320234

MARTIN J. McCLAIN

Florida Bar No. 754773

Special Assistant CCRC-North

LINDA McDERMOTT

Florida Bar No. 0102857

Assistant CCC - Northern Region

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