IN THE SUPREME COURT OF FLORIDA

Appellant,

v.

RUDOLPH HOLTON,

Appellee.

___________________________/

APPELLEE'S EMERGENCY MOTION TO RETURN EXHIBITS,

OR IN THE ALTERNATIVE, MOTION TO DISMISS THE APPEAL

COMES NOW the Appellee, RUDOLPH HOLTON, and respectfully requests that this Court order the State to return the exhibits removed from the custody of the Clerk of Court for the Thirteenth Judicial Circuit. 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. His case is before this Court on appeal from circuit court’s determination that Mr. Holton is entitled to a new trial, after conducting an evidentiary hearing on his Rule 3.850 motion.

2. On November 2, 2001, the circuit court announced its decision to grant 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.

3. On November 8, 2001, the State called Mr. Holton’s case before the Honorable Daniel L. Perry. Mr. Holton’s designated counsel and co-counsel were not present at the hearing due to their required participation in scheduled evidentiary hearings. At the November 8^th hearing, Assistant State Attorney Wayne Chalu requested that the circuit court release evidence introduced during Mr. Holton’s capital trial in 1986. Mr. Chalu argued:

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.

(See Attachment C of Motion to Expedite Appeal, filed simultaneously with this motion)(emphasis added). However, while arguing that Mr. Holton’s case was in a pre-trial posture, Mr. Chalu also informed the court that the State intended to appeal the order granting Mr. Holton a new trial. (Attachment C, p.4).

4. Judge Perry expressed concern that a release of the evidence would be improper because the case was not in a pre-trial posture, but in a post-conviction posture due to the State’s announced intention to appeal.

5. Mr. Chalu responded by explaining the purpose of the State’s 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 C, p. 4). Mr. Chalu also erroneously claimed that the State "did not have the opportunity to do any testing in 1986" of the evidence in the custody of the Clerk’s office.

6. Judge Perry then asked Mr. Chalu "if you appeal it, it is in a post conviction posture because that kind of stays everything, doesn’t it?" (Attachment C, p. 5). The State urged Judge Perry to release the evidence anyway. At that point, the judge asked: "[S]houldn't someone be representing [Mr. Holton] at this point? [Mr. Holton] is not here." (Id.)(emphasis added). Neither of Mr. Holton’s attorneys had been able to attend the hastily scheduled heating. An attorney unfamiliar with the case had appeared to argue for a continuance. Mr. Chalu argued that Mr. Holton did not need to be represented for purposes of the motion. The judge refused to grant the State’s motion and scheduled a hearing for November 13, 2001.

7. On November 13, 2001, Linda McDermott and Martin J. McClain appeared at re-scheduled hearing. Mr. Holton was also present.

8. At the hearing, Mr. Chalu again requested that the court release the evidence so that the State could prepare for trial while the appeal was pending. (See Attachment E of Motion to Expedite Appeal, filed simultaneously with this motion)(emphasis added).

9. At the hearing, Mr. Holton objected to the release of the evidence and told the court:

MR. McCLAIN: . . . You either have to decide you’re going to appeal and enter the appeal and leave everything in the record until such time as the appeal is affirmed or not appealed then you can do your testing.

(Attachment E, p. 5). Over Mr. Holton’s objection, Judge Perry granted the State’s motion releasing exhibits from the record despite the State’s announced intention to file an appeal. (Attachment E, p. 7)

10. Shortly thereafter, the State recalled Mr. Holton’s case and filed a written motion requesting the judge to extend the speedy trial deadline. Over Mr. Holton’s objection, Judge Perry granted the State’s motion to stop the speedy trial clock. (Attachment E, p. 8).

11. On November 13, 2001, the circuit court granted the State’s motion to release the exhibits. On that same day, the State filed a notice of appeal.

12. Mr. Holton requests that this Court order the State to return the exhibits to the Clerk of Court. As the State told the circuit court, the State is preparing for trial. The testing of evidence that has been in the custody of the Hillsborough County Clerk of Court for over fifteen years and the issues of contamination, oversight of testing and chain of custody are not merely ministerial as argued by the State, but rather pretrial procedures from which Mr. Holton is being improperly excluded. Mr. Holton is being denied equal access to the evidence. The State has asserted that CCRC counsel cannot represent at a re-trial. The State has also opposed providing Mr. Holton with trial counsel while the post-conviction appeal is pending. As a result, the State has prevented Mr. Holton from obtaining his own expert to participate in the testing process.

13. The exhibits that were released are a part of the record and therefore relate to the appellate proceedings instituted by the State. The exhibits must be returned to the clerk of court to be available for appellate review. In the alternative, Mr. Holton would ask that the State’s action be construed as a waiver of its appeal.

WHEREFORE, Appellee respectfully requests that this Court order the State to return the exhibits removed from the custody of the Hillsborough County Clerk immediately and to order that the exhibits remain in the Clerk’s custody until Mr. Holton is represented by qualified capital trial counsel. To the extent that the exhibits have been altered or damaged by the State’s withdrawal of the evidence, the State’s conduct shold be construed as a waiver of the appeal and the appeal should be dismissed.

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 3^rd 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 CCC-NR

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