State Attorney Mark Ober has 30 days to decide if he will appeal Perry's decision. Prosecutors may have a difficult time retrying Holton, now 48. All of the state's witnesses have either died, recanted their testimony or been discredited by new witnesses. No physical evidence links Holton to the murder, although prosecutors now want to test hair fibers that were never tested 15 years ago.

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

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).

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

McClain and Florida and the electric chair

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.

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.

READ THE LAWYERS FILING :

OR IN THE ALTERNATIVE, MOTION TO DISMISS THE APPEAL

New York 2001

The lawyers file for emergency to expedite the appeal

APPELLEE’S EMERGENCY MOTION TO EXPEDITE APPELLATE PROCEEDINGS

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).

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.

Undersigned beseeches this Court to expedite the appellate proceedings. Mr. Holton has been on death row since 1986. It is fundamentally 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. Florida Rule of Criminal Procedure 3.191 also provides Mr. Holton with the right to a speedy trial. Mr. Holton simply asks that his right be vindicated.

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.