i

This appeal involves the summary denial of Mr. Tompkins’ second Rule

3.850, as well as related motions on which evidence was taken. References in the

Brief shall be as follows:

(R. ) -- Record on Direct appeal;

(PC-R. ) -- Record on first postconviction appeal;

(PC-R2. ) -- Record in the instant appeal;

(SPC-R2. ___) –- Supplemental record in the instant appeal;

(T. ) -- Transcript of hearings below.

Other citations shall be self-explanatory.

Mr. Tompkins requests that oral argument be heard in this case. This Court

has not hesitated to allow oral argument in other capital cases in a similar posture.

A full opportunity to air the issues through oral argument would be more than

appropriate in this case, given the seriousness of the claims involved and the stakes

at issue.

ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

REPLY TO STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . . . . 1

A. Matters relating to Mr. Tompkins’ appeal . . . . . . . . . . . . . . . . . . . . 1

B. Matters relating to the State’s appeal . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

REPLY ARGUMENTS

ARGUMENT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

B. DILIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

C. ELEMENTS OF A BRADY VIOLATION . . . . . . . . . . . . . . . . . . . . 26

1. Favorable and undisclosed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2. Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ARGUMENT II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iii

ARGUMENT III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

APPELLEE/CROSS APPELLANT’S APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . 37

ARGUMENT V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

A. Standard of review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

B. Judge Perry’s Factual Determinations . . . . . . . . . . . . . . . . . . . . . . 39

C. The State’s Diligence Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

1. Evidence regarding collateral counsel’s

conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2. Neither the State nor Judge Coe disclosed

the evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

3. Conclusion as to Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . 49

D. State Concedes Ex Parte Contact Occurred And Was Improper . . . 52

E. State Contests Judge Perry’s Factual Finding That Independent

Weighing Did Not Occur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

STATEMENT OF FONT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

iv

Arizona v. Youngblood,

488 U.S. 51 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Berger v. United States,

295 U.S. 78 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Card v. State,

625 So. 2d 344 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 52

Cardona v. State,

___ So.2d ___ (Fla. July 11, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Garcia v. State,

622 So.2d 1325 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Gaskin v. State,

737 So.2d 509 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Gholston v. State,

v

Jones v. State,

709 So.2d 512 (Fla. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

King v. State,

808 So. 2d 1237 (Fla. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Light v. State,

Love v. State,

Maharaj v. State,

684 So. 2d 726 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Maharaj v. State,

778 So. 2d 944 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

McClain v. State,

Nibert v. State,

508 So. 2d 1 (Fla. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45

Porter v. Singletary,

Roberts v. Butterworth,

668 So. 2d 580 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Roberts v. State,

678 So.2d 1232 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

vi

Rogers v. State,

782 So.2d 373 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 29, 47

Scott v. State,

657 So.2d 1129 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Spencer v. State,

615 So. 2d 688 (Fla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

State v. Huggins,

788 So.2d 238 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 31

State v. Mills,

788 So.2d 249 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

State v. Reichman,

777 So.2d 342 (Fla. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38, 52

Steinhorst v. State,

695 So.2d 1245 (Fla. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Stephens v. State,

748 So.2d 1028 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Strickler v. Greene,

527 U.S. 263 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Swafford v. State,

679 So.2d 736 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Williams v. Taylor,

529 U.S. 420 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Young v. State,

739 So.2d 553 (Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Ziegler v. State,

654 So. 2d 1162 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

vii

lead collateral counsel. Martin McClain was also listed as

counsel for Mr. Tompkins.

to a typographical error. It was in fact the fourth claim of

the Rule 3.850 motion.

1

In the its Answer Brief, the State quotes this Court’s direct appeal opinion as

providing a summary of the facts of Mr. Tompkins’ case. Of course, this Court’s

factual recitation in that opinion was gleaned from a trial record that did not contain

the exculpatory evidence that had not yet been disclosed by the State and which

now serves as the basis of the Mr. Tompkins’ attack upon his conviction in the

pending appeal.

As to the matters arising in the State’s cross-appeal, the State recitation of

the facts overlooks and omits significant procedural and factual matters. Mr.

Tompkins filed his Rule 3.850 motion on Monday, April 16, 2001, at 7:35 a.m.

collateral counsel had learned that the Hillsborough County State Attorney’s Office

At the time that this resolution of the claim was worked

out in Holton, Judge Coe was serving as the elected State

Attorney in Hillsborough County and would have been involved

in the decision to confess error.

Court had denied Holton’s challenge to his sentence of death

2

1980’s (PC-R2. 297-99). Mr. Tompkins’ Rule 3.850 motion quoted an affidavit

from Holton’s collateral counsel, Linda McDermott, who stated in pertinent part:

6. Approximately, a few weeks after our initial conversation, the

prosecutor again contacted me and informed me that the State had

decided to concede error at the penalty phase and would stipulate to a

new sentencing proceeding, including a penalty phase hearing before a

jury. I was told that the State was conceding error as to Mr. Holton’s

claim that the State improperly prepared the sentencing order.

7. In the course of our conversation, I was informed that Judge

Coe always had the State prepare his sentencing orders.

standard practice and engaged in ex parte contact during the preparation of the

findings in support of a sentence of death in Mr. Tompkins’ case. However, Mr.

Tompkins asserted he had no basis for asserting this claim until his counsel learned

of the State’s confession of error in State v. Holton:

Since the basis of this claim is ex parte contact between the

State and Judge Coe in the drafting of the findings in support of the

death penalty, Mr. Tompkins could not plead this claim until the ex

parte contact was revealed.

in his direct appeal. See Holton v. State, 573 So.2d 284, 291

(Fla. 1990)(“Holton also claims that the state rather than the

trial judge was responsible for preparing the written findings

of fact in support of the death penalty. The record, however,

does not support this contention.”). Thus, Mr. Tompkins

alleged that this demonstrated that relief could not be obtain

“without the admission by the State that Judge Coe’s practice

was to have the State ex parte draft the sentencing findings

because the Florida Supreme Court said so in Holton v. State.”

(PC-R2 302 n.61).

3

On Tuesday, April 17, 2001, at 7:58 a.m., the State filed its Response to Mr.

Tompkins Rule 3.850 motion (PC-R2. 350). As to “Claim V”, the State asserted:

premised solely on an affidavit from an attorney now employed by

CCRC-North, Linda McDermott, asserting that an unidentified

prosecutor in a separate case has indicated to McDermott “that Judge

Coe always had the State prepare his sentencing orders” (Motion, p.

118). Surely such a vague, unsupported and ambiguous comment

cannot compel any further consideration of this claim.

The prosecutor representing the State at the time of the

stipulation in State v. Holton, Circuit Court Case No. 86-8931A was

Jack Gutman. Mr. Gutman was not with the state attorney’s office in

1984 when Tompkins was tried and, for that matter, was still in law

school. The stipulation is attached hereto as Ex. A, and clearly there

is no indication in the stipulation or in the transcript of the hearing in

Holton discussing the stipulation (Ex. B) that this procedure was

employed in any other capital case.

There is no allegation anywhere in Tompkins’ motion that

anyone with personal knowledge of the Tompkins’ trial or sentencing

can support the assertion that the State prepared the sentencing order

in this case. Absent such a contention, there is no basis for an

evidentiary hearing.

remained in Mr. Holton’s case were held virtually simultaneous

before Judge Perry with the proceedings on Mr. Tompkins’ Rule

3.850 motion. A three day evidentiary hearing commenced at

1:00 p.m. on April 18, 2001, in State v. Holton. Mr. McClain

was one of the attorneys representing Mr. Holton in those

proceedings. See State v. Holton, Case No. SC01-2671.

Mr. Tompkins lead counsel due to Mr. Scher’s unavailability

arising from a simultaneous hearing in another capital case

(Greg Mills) under the exigencies of a simultaneous death

warrant.

4

Tompkins’ claim is based on speculation that, because the State

prepared the sentencing order in the capital case of Rudolph Holton,

tried by Judge Coe after the Tompkins trial, the same impropriety must

have occurred herein. Tompkins fails to acknowledge important

factual distinctions between Holton and the instant case. For example,

the claim for relief in Holton which was agreed to by the state

attorney’s office was premised on the fact that an unsigned, draft

sentencing order had been discovered in the prosecutor’s file during

V” did the State assert a lack of diligence on Mr. Tompkins’ part (PC-R2. 387-91).

An hour after the State’s Response was filed, at 9:00 a.m. on Tuesday, April

17, 2001, the parties appeared before Judge Perry to argue whether an evidentiary

Tompkins’ counsel argued that an evidentiary hearing was required on “Claim V”.

Counsel also noted that based upon the State’s response:

warrant, with an imminent execution date.

5

At this point in time the State seems to be agreeing that there’ nothing

in the record that should have alerted Mr. Tompkins collateral counsel,

me, in 1989 to this claim.

(T. 164).

During its oral argument in response, the State announced a position

completely at odds with the one articulated in the Response filed just an hour

earlier:

MS. VOLLRATH: Regarding issue number five, Your Honor,

relaying [sic] number four on the sentencing order[,] the State is

prepared at this time to say that we will agree to sentencing, to an

evidentiary hearing on that issue alone.

(T. 170).

At that point, Mr. Tompkins’ counsel expressed concern about “notice” and

availability of witnesses for such an evidentiary hearing. In order to answer the

judge’s inquiry, counsel for Mr. Tompkins, who had been surprised by the sudden

change in the State’s position, explained that he needed to ascertain the scope of

evidentiary hearing being proposed and whether the State was raising an diligence

argument as to the sentencing order claim:

MR. MCCLAIN: Before you take a recess just also I don’t

know if the State is not making a diligence argument because that [sic]

6

I have witnesses to the diligence argument if a diligence argument is

made in the pleading because I was just made aware and we would

need witnesses to that effect.

(T. 171).

After a brief recess, Mr. Tompkins’ counsel again asked for delineation of

the State’s position as to the scope of the evidentiary hearing:

MR. MCCLAIN: Again, Your Honor, hearing this I just need to

know if I need to have my diligence witness, key witnesses to dispute

diligence [if it] is an issue.

THE COURT: What’s your position on that diligence?

MS. VOLLRATH: I’m sorry?

MR. MCCLAIN: I want to have diligence witnesses here so –

MS. VOLLRATH: We are not in a position to state what our

position is without having talked to Mr. Hernandez regarding this

issue. We don’t know if he was aware of any procedures regarding

sentencing order of Judge Coe so unless and until we’re able to speak

with him I can’t answer that.

MR. MCCLAIN: Assuming this may have happened?

MS. VOLLRATH: Yes.

MR. MCCLAIN: The judge may have done or had the State

draft the sentencing order?

MS. VOLLRATH: He may have, yes.

7

(T. 173). Thereafter, the evidentiary hearing was scheduled to commence the next

day, twenty-four hours later.

The evidentiary hearing commenced at 11:00 a.m. on Wednesday, April 18,

2001. Immediately before the hearing commenced, the State filed its Supplemental

Response to Claim V of Motion to Vacate (PC-R2. 413). In this Supplemental

Response, the State argued that the claim should be summarily denied:

Tompkins’ assertion that his death sentence must be vacated

because Judge Coe allegedly delegated the responsibility for the

drafting of the sentencing order to the state attorney’s office does not

compel the granting of collateral relief on the eve of his execution.

First of all, this claim could and should have been presented earlier.

The record on appeal reflects an entry in the case notes of “Set

10/11/85 for order per judge (told [Assistant State Attorney] Benito

yesterday on phone)” (direct appeal at R. 486, postconviction appeal

at 480), clearly placing any appellate or collateral counsel on notice as

to at least the need to investigate this claim. This is particularly true

since the claim was being frequently litigated across the state, and even

with regard to the same judge that imposed the sentence herein, at the

time of the post-conviction investigation in this case. See Holton v.

State, 573 So.2d 284, 291 (Fla. 1990); Patterson v. State, 513 So.2d

1257 (Fla. 1987); Spencer v. State, 615 So.2d 688 (Fla. 1993). Since

this claim could have been discovered through due diligence and

Buenoano v. State, 708 So.2d 941 (Fla. 1998).

Response was not typewritten, but instead a handwritten scrawl

appearing in the record with an entry date of “9-20-87" ( R.

486). The word that the State interpreted as “Set”, commenced

with a squiggle that bore more of resemblance to an “L” than

an “S”. The word that the State interpreted as “for”,

commenced with the same squiggle bearing more of a resemblance

to an “L”, though this time the State read it as an “f”, not

an “S”. Thereafter, the letter (or squiggle mark) appears to

be followed by the letters “on”, although the State

interpreted these letters as “or”. The reference to “10-11-

85" did not correspond to any other date entry. The

subsequent entries bore the dates of “10-4-85" and “10-18-85.”

Moreover, the date appearing on the sentencing order

containing the findings purportedly made by the judge bore the

block ( R. 681). Since the case progress notes were kept in

the court clerk’s file, the handwritten entries were

presumably made by someone with the clerk’s office and not by

the judge or his secretary.

8

Despite the submission of this pleading urging the denial of the claim summarily and

without an evidentiary hearing, the only thing ASA Vollrath said at the

commencement of the evidentiary hearing was “Judge, I would just like to inform

the Court, Mr. Benito is here but he indicated to me he had a conflict at noon so if

it would be possible to have his testimony first” (T. 180). The State did not

withdraw its concession from the previous day that an evidentiary hearing was

warranted, nor did the State even mention the Supplemental Response on the

record.

9

The first witness called was Daniel Hernandez, Mr. Tompkins’ trial counsel.

Mr. Hernandez testified that he “did not have knowledge” of the sentencing order in

Mr. Tompkins’ case being prepared by the prosecuting attorney, Mike Benito, on

behalf of Judge Coe.

The second witness called was Mike Benito, the trial prosecutor who had

handled the 1989 post-conviction proceedings. Mr. Benito testified:

Q. And do you recognize that document?

A. Yes.

Q. What is that?

A. That’s the sentencing order signed by Judge Coe.

Q. And how did you go about preparing it?

A. Um, Coe asked me, Coe had his secretary call me after the

sentencing phase that he needed an order prepared on Mr. Tompkins’

case and I prepared the order based on what I felt Judge Coe – Judge

Coe had a habit of limiting me as to what I could argue for aggravating

circumstances and in this case as others I tried in front of him he more

than likely told me that these are the only aggravating circumstances

you can argue. I argued those three.

The jury accepted those three aggravating circumstances and

made their recommendation and then Judge Coe asked me to prepare

the order and I prepared the order and citing the three aggravating

circumstances that Judge Coe let me argue.

Q. And so you drafted that order as it is, correct?

10

A. No, I couldn’t say as is [,] whether Judge Coe after I

submitted it to him for his signature [,] whether he made any changes

in that order I couldn’t tell you. This has been 15 years now.

Q. Was there - - when you drafted the order did you write that

in long hand?

A. Did I write the order in long hand?

Q. Did you write the order in long hand and give it to his

secretary to type or - -

A. I think I probably would have written it on somewhat in long

hand and dictated it.

Q. Okay, and the order was sent to Judge Coe, correct?

A. Correct.

Q. And he signed it?

A. Yes, his signature is on the third page.

Q. Do you recall when Judge Coe signed this?

A. No, I don’t.

Q. Okay, if I can have a moment. Mr. Benito, in terms of do

you have any drafts or any other handwritten notes you may have

done in your possession?

A. No, I don’t.

Q. Do you know whether or not those items still exist?

A. I don’t think they do.

11

Q. Okay, and if you would have any kind of draft or anything

like that in your file back in 1989, would that be something you would

disclose to Mr. Tompkins pursuant to his public records request?

A. I would assume so.

Q. And when is the - - prior to your testimony today have you

had discussions with representatives from the state in this case?

A. Yes.

Q. And when is the first time that you alerted them to the fact

that you had prepared that sentencing order in this case?

A. I don’t know, a few days ago. I didn’t alert them, they

asked me.

(T. 192-94).

The third witness called at the evidentiary hearing was Martin McClain, Mr.

Tompkins’ collateral counsel in 1989, and co-counsel at the 2001 proceedings. He

testified:

Q. Now in his current 3.850 motion there has been alleged and

you’re aware in terms of a sentencing order claim?

A. Yes, I am.

Q. And could you explain how it is that, that claim arose.

A. Um, well, currently, I am employed in New York with Legal

Aid Society and this past fall I had been in touch with Linda

McDermott who is doing the Rudolph Holton case and she asked me

if would participate in the Holton hearing which is scheduled to start

this afternoon and I had agreed to that that and so I taken some time

either Mike Benito (who was representing the State), or Judge

Coe (who was presiding over the Rule 3.850 proceedings) that

they had engaged in ex parte “at the time of Mr. Tompkins’

trial” (T. 208). Had such a disclosure been, Mr. McClain

indicated he would have immediately “filed a motion to

disqualify Judge Coe because he would not be able to preside

over the proceeding and I would have filed a claim” (T. 208).

12

off in March and April from New York to actually come down and

help on the Holton hearing when the death warrant was signed on the

Wayne Tompkin’s case and I actually, you know, it was on a

judge on both cases and started comparing things and suddenly

discovered in the record that the circumstances of Mr. Tompkins’

case was identical to Mr. Holton’s case when it came to the

proceedings at the penalty stage and the judge sentencing and the

sentencing order and I realized the State had confessed error last

August in the Holton case as to the sentencing order and so that’s

when I started the investigation and sort of figured things out.

Q. And did you subsequently speak to Ms. McDermott in

terms of what had happened in the Holton case?

McDermott regarding her conversation with Jack Gutman when the

State agreed to or confessed to error in the Holton case.

representation of Mr. Tompkins, did you ever have any indication that

the prosecutor, Mr. Benito, had prepared the sentencing order at

Judge Coe’s direction on an ex parte basis?

A. No, I have not.

13

Sharon Vollrath, the Assistant State Attorney representing the State in the

2001 proceedings below, was called by Mr. Tompkins as the fourth witness, and

she testified:

Q. When were you aware that Mr. Benito had told a

representative of the state that he had prepared the sentencing order in

this case?

A. Yesterday.

Q. So if he said a couple of days ago that would be he told

somebody else?

A. The situation that went down is that after your motion was

filed on Monday alleging ground five and we began which was the

ground that involved this sentencing order and we began making

inquiries. I spoke with Mr. Benito Monday afternoon I believe it may

have been Tuesday afternoon the days kind of run together but it was

post your filing of your motion.

MR. BROWNE: Your Honor, if I may lodge an objection at this

point I think her testimony is largely irrelevant. I don’t know where

they’re trying - -

THE COURT: Where are we going?

MR. SCHER: Judge, essentially I want to establish that their

response indicates that in fact this did not occur and now of course

we know that has happened and I want to establish for the record

when in fact the state knew that in terms of their assertion in here that it

did not occur.

THE COURT: Well - -

assertion in its Supplemental Response that the cryptic case

progress notation “clearly plac[ed] any appellate or

collateral counsel on notice” (PC-R2. 414). ASA Vollrath, the

assigned post-conviction prosecutor testified that she had

“had no reason to believe” that Mike Benito had written the

sentencing order.

14

MR. SCHER: And they were in court yesterday and they never

bothered to disclose the fact that it occurred.

THE COURT: Well, I think she testified yesterday or testified

today that she found [out] Monday, is that correct, Ms. Vollrath, after

the claim [was] filed?

MS. VOLLRATH: After the motion was filed I contacted Mr.

Benito. Mr. Benito said, the statement to me that and my inquiry to

him was do you know, do you know any recollection whether the

State prepared the sentencing order. Mr. Benito said, golly, gee, I

really don’t recall and then he paused and then he said, if I had to

guess I would say that the State prepared the order. Yesterday, the

attorney general’s office faxed Mr. Benito a copy of the sentencing

order after I had spoken with Mr. Benito yesterday morning a second

conversation not the first one and then I learned from the attorney

general’s office yesterday that Mr. Benito had said that he believed

that it was his product.

BY MR. SCHER:

15

After Ms. Vollrath’s testimony, the parties had no further witnesses to

present regarding the sentencing order claim. The parties then submitted oral

closing arguments. On behalf of Mr. Tompkins, Mr. McClain argued:

Apparently now the State is trying to maintain that this notation,

this progress note, should somehow put us on notice of this claim

even though Ms. Vollrath herself testified that prior to the filing of the

3.850 motion on Monday she had no basis for knowing this had

occurred and it was only after the 3.850 was filed that she decided that

maybe it was a basis for investigation and certainly if the State is not in

a position to know the record and know the basis for that claim, it

seems to me that the defense should not be in any different position in

reading this. It certainly looks like it’s just a routine sort of setting

something for hearing contacting the different parties and there’s a

notation in fact of the hearing that occurred and happened on October

* * *

Moreover this establishes that, um, Judge Coe should have

recused himself back in 1989 from presiding over the 3.850

proceeding that was going on in 1989 and ex parte contact with Mike

Had I known I would have filed a motion to recuse Judge Coe

in which case he would have been required to recuse himself and that

tainted the entire proceedings and requires they be done over and Mr.

Tompkins be put back in the position he would have been in had the

disclosure occurred.

Again as I pointed out yesterday, the Florida Supreme Court

made it the State is under an obligation to disclose favorable

information to a defendant. In this case it was not disclosed.

If its’s favorable it creates a claim for relief and, granted, if it’s

not we have to find out by happenstance because I happened to be

16

involved in the Holton case and started looking. And now they’re

even saying that Mr. Gutman didn’t say what Ms. McDermott told me

he said, that doesn’t matter. We now know it has happened.

(T. 214-17)(emphasis added).

In the State’s closing argument, Assistant Attorney General Dittmar very

briefly asserted that whether there was a lack of diligence of collateral counsel was

something that Judge Perry consider:

There are basically several issues which Your Honor has to

consider in determining how to resolve this issue.

The first one is whether or not this could have been discovered

earlier through due diligence in time raised for the initial post

conviction motion and it’s our contention that because of the entry in

the case progress notes and because of the case law at the time the

post conviction came out this was a claim which Mr. McClain was on

notice of and could have explored at the time he was exploring

potential issues.

But even if this Court determine that it would not been

discovered through due diligence then to raise it at this stage in a

successive post conviction motion it has to be considered newly

discovered evidence as the Florida Supreme Court said in Card.

(T. 219). Ms. Dittmar never actually stated that Mr. Tompkins’ collateral counsel

was not diligent.

At the conclusion of the oral arguments, Judge Perry took a brief recess.

When he returned, he announced that he was granting relief on the claim:

There are no oral findings by Judge Coe, that show that he

independently found any aggravating or mitigating circumstances.

And while Mr. Benito may have been aware that Judge Coe would not

17

let him argue certain things there is no, you know, nothing that would

indicate to me that the judge ever indicated what the mitigating

circumstances were.

It was apparently an ex parte communication I think both the

statements by Mr. Benito and his recollection and Mr. Hernandez

would indicate that. And I think the law requires that the careful

balancing and weighing of those circumstances and they weren’t done

in this case. So I think he’s entitled to a new sentencing hearing.

(T. 224). Judge Perry indicated his written order would issues within a couple of

days.

On April 20, 2001, Judge Perry issued a written order in which he stated:

During the April 17, 2001 hearing, the State conceded that an

evidentiary hearing was necessary on this claim. On April 18, 2001,

the Court conducted an evidentiary hearing on this claim. Based upon

the testimony of the witnesses and the argument of counsel, the Court

finds that Defendant is entitled to relief with regard to this claim.

After the evidentiary hearing, the Court finds that the former

State Attorney, Mike Benito, admitted to drafting the sentencing order

for the Defendant. The Court finds that Mr. Benito drafted the order

after being contacted by the judge or the judge’s office. Additionally,

the Court finds that the sentence of the Defendant was pronounced

immediately after the jury had provided its recommendation. (See

Transcript of Sentencing, attached).

Florida Statutes require the sentencing judge independently

weigh the aggravating and mitigating circumstances. Fla. State

921.141 (1985). It is impermissible for a judge to request that any

party draft any sentencing order which requires the weighing of

aggravating and mitigating circumstances. See Card v. state, 652

So.2d 344 (Fla. 1995) and Spencer v. State, 615 So.2d 688 (Fla.

1993).

The Court finds that testimony demonstrates that there was an

ex parte communication between the sentencing judge and the State in

this case. The Court finds that the limitation of argument that the

18

Court imposed for the State in arguing aggravating circumstances is

not a sufficient “weighing” by the trial judge. The Court finds that the

failure to independently weigh aggravating and mitigating

circumstances in this case entitles Defendant to relief.

(PC-R2. 441-42).

On May 7, 2001, Mr. Tompkins filed for a rehearing of the guilt phase claims

that Judge Perry denied (PC-R2. 677). The State did not respond to that motion,

nor did it file a rehearing of its own (SPC-R2. 8). On June 12, 2001, Judge Perry

heard the parties with reference to Mr. Tompkins’ motion for rehearing (SPC-R2.

4). No discussion of the sentencing order claim occurred during that proceeding.

On June 15, 2001, the motion for rehearing was denied. On June 25, 2001,

Mr. Tompkins mailed his notice of appeal. On June 27, 2001, Mr. Tompkins filed

his Motion to Stay Resentencing Proceedings Pending Appeal. In this motion, he

asserted:

Based upon discussions with opposing counsel, Assistant State

Attorney Shirley Williams, the State intends on proceeding with Mr.

Tompkins’ resentencing at this time. Mr. Tompkins’ counsel

informed the State of his appeal to the Florida Supreme Court

regarding the denial of the guilt phase issues arising out of the second

Rule 3.850 motion filed during the recent death warrant. The State’s

position, however, has apparently remained unchanged despite the

pending appeal. Thus, in light of the State’s position, Mr. Tompkins

must request that the resentencing proceedings be stayed pending the

appeal he has taken to the Florida Supreme Court.

(PC-R2. 806).

19

Also filed on June 27, 2001, was Mr. Tompkins Motion to Appear

“via fax a notice of hearing in above-entitled case, setting a ‘Case Review” status

for the morning of June 28, 2001.” The motion to appear telephonically explained

Mr. Tompkins’ counsel actions after receiving this notice of hearing:

The undersigned contacted opposing counsel, Assistant State

Attorney Shirley Williams, about the scope of the hearing, informing

her that Mr. Tompkins has appealed the Court’s denial of the guiltphase

issues in the case, thus depriving the Court of jurisdiction over

the case. The State’s position is apparently that Mr. Tompkins’

resentencing must proceed notwithstanding the lack of jurisdiction and

the pending appeal on the guilt phase issues.

(PC-R2. 810-11).

On June 28, 2001, the parties appeared for a telephonic hearing on the

Motion to Stay Resentencing Proceedings Pending Appeal. Mr. Tompkins counsel

explained:

Well, Your Honor, I had filed that motion. I received notice of

today’s hearing from the State and spoke with Ms. Williams and she

indicated that the State wanted to proceed with the resentencing

despite the fact we have an appeal of the Court’s order denying the

guilt phase issue and I filed that motion to stay sentencing

proceedings.

(SPC-R2. 33). When Judge Perry asked the State for its position, ASA Williams

responded:

Judge, my concern that in speaking with the A.G.’s office

they’re not certain that the 90 day requirement for retrial on the

rehearing is toll by, by anything and they’re just, Your Honor,

20

uncertain about that so if we’re going to put it off then I would want a

waiver of the 90 days requirement for retrial.

(SPC-R2. 33-34). Thereupon, Judge Perry asked Mr. Tompkins’ counsel “if there

is a problem of the 90 days rule a waiver of time period?” Counsel responded,

“No” (SPC-R2 34). Accordingly, Judge Perry granted the motion staying the

resentencing (PC-R2. 820).

However on July 6, 2001, the State elected to file a Notice of Cross-Appeal

after all.

In his Initial Brief, Mr. Tompkins set forth his Summary of the Arguments

for the four argument raised in support of his appeal. He will not unnecessarily

repeat them here. Mr. Tompkins does set forth his summary of his argument as to

the issue raised by the State in its cross-appeal.

Mr. Tompkins raised a challenge to the ex parte contact between the State

and the his sentencing judge in connection with the preparation of the findings in

support of his death sentence as soon as his collateral counsel reasonably learned

that the trial prosecutor and the sentencing judge breached their obligations under

due process to refrain from ex parte communications. The delay between the

21

misconduct and the issue being presented in court occurred because of the State

and the sentencing judge breached their ethical duties and failed to disclose their

misconduct to Mr. Tomkins or his counsel.

The circuit court found that the State on an ex parte basis did prepare the

sentencing order that imposed a death sentence upon Mr. Tompkins. In light of the

ex parte contact, the circuit concluded that the sentencing judge failed to engage in

an independent weighing of the aggravating and mitigating circumstances required

under the law to support a sentence of death. The circuit court concluded that

under the controlling law, Mr. Tompkins’ sentence of death had to be vacated and

a re-sentencing order. Competent and substantial evidence supports the circuit

court’s factual determinations, and the circuit court correctly applied the case law.

In his Initial Brief, Mr. Tompkins set forth the set of review of review

applicable in Rule 3.850 cases in which a successor motion to vacate has been

summarily denied without an evidentiary hearing. In the State’s Answer Brief, there

is no discussion of the applicable standard of review. The argument seems to

assume that evidentiary development occurred and that deference is due to

postconviction motion, the defendant must demonstrate that

the facts upon which the claim is predicated were unknown

and could not have been discovered through the exercise of

due diligence. See Fla. R. Crim. P. 3.850 (b)(1). The

Supreme Court has explained that "[d]iligence . . . depends

on whether the prisoner made a reasonable attempt, in light

of the information available at the time, to investigate....

[I]t does not depend ... upon whether those efforts could

have been successful." Williams v. Taylor, 529 U.S. 420,

435 (2000).

22

resolution of evidentiary disputes. However, the law is well settled that “[u]nder

rule 3.850, a post-conviction defendant is entitled to an evidentiary hearing unless

the motion and record conclusively show that the defendant is entitled to no relief.”

Gaskin v. State, 737 So.2d 509, 517 (Fla. 1999); Hamwi v. State, 805 So.2d 101

The rule is the same for a second postconviction motion, where allegations

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.

23

2d 726, 728 (Fla. 1996). The State in its Answer Brief fails to recognize that the

factual allegations contained in the motion must be accepted as true. As it did at

the Huff hearing, the State continues to challenge the merit of Mr. Tompkins’

factual allegations, as well as the issue of diligence, arguing that Mr. Tompkins

received an evidentiary hearing in 1989 on Brady and Giglio issues, and thus "[a]ll

these claims have previously been raised" and that Mr. Tompkins "could have

made these [Chapter 119] requests years ago" (PC-R2. 166).

However, application of the correct standard of review leads to the

inescapable conclusion that there is nothing in the record to conclusively refute the

fact that the state failed to disclose numerous notes and reports. The newly

disclosed notes and reports relate to credibility, impeachment and investigation, all

of which would have affected the result.

Refusing to accept Mr. Tompkins factual allegation, the State’s position is

that Mr. Tompkins could have sought the documents pertaining to the Jesse Ladon

Albach investigation 1989. However, Mr. Tompkins’ motion specifically alleged

that all of the police reports and information pled in the motion to vacate had not

been disclosed either prior to trial or during his first Rule 3.850 proceedings (PCR2.

214, 216, 217, 220-27).

request that contains a handwritten notation suggesting that

there was additional oral contact hardly supports the State’s

position and does not refute Mr. Tompkins’ factual allegation

that he was diligent in 1989 in his efforts to obtain all

available public records. Obviously, testimony explaining the

public records and the handwritten notation is warranted.

24

Instead of accepting the factual allegations set forth by Mr. Tompkins, the

State relies upon a document that was not part of the record, but included with

other new attachments appended to the State’s Objection to Defendant’s Demand

for Additional Records. The attachment specifically relied upon in the Answer

Brief was a typed public records request dated April 19, 1989, from Mr.

Tompkins’ collateral counsel with a handwritten notation scrawled across the face

of the letter indicating “earlier in the month Paul Harvill copied everything to my

knowledge that we have in our office with regard to Wayne Tompkins” (PC-R2.

1010). The State’s reliance upon a document that was not previously part of the

record amounts to a concession that an evidentiary hearing is required. McClain v.

inability to refute allegations without recourse to matters outside the record,

warrants reversal of that portion of the order which denied appellant’s ineffective

the Jesse Albach files that included statements regarding Lisa

DeCarr were suppressed and not disclosed to Mr. Tompkins’

trial counsel. Given that these statements include reports

from Barbara DeCarr indicating that Lisa was alive and with

Jesse Albach in Hyde Park area in July of 1983, four months

after the date on she was supposedly murdered (SPC-R2. 59),

the reports were favorable to the defense.

factual allegation that cannot legally refute Mr. Tompkins’

allegation that he asked for everything and he was diligent.

25

Moreover, the State conceded in circuit court hearing on Mr. Tompkins’

motion for rehearing that “the reports that counsel is referencing are reports

regarding Lisa Albock. The Albock reports were not provided in discovery

Inexplicable, the State argues that it was under no obligation to disclose the Albach

records, because the Albach case was a different case, while alleging that Mr.

Tompkins’ collateral counsel failed to ask for the Albach file, and thus was not

In its brief, the State argues that Mr. Tompkins could have sought the

documents pertaining to the Jesse Ladon Albach investigation. The State

overlooks how the Albach records were received by Mr. Tompkins in 2001. The

Lisa DeCarr Tampa Police Department file was commingled with the Albach file.

There is no question that Mr. Tompkins was being investigated as a suspect in both

26

cases. Therefore, any request for any and all records pertaining to Mr. Tompkins

should have generated the Albach records as well as the DeCarr records.

Mr. Tompkins was, as he alleged, diligent. Mr. Tompkins’ set forth in his

motion to vacate the April, 2001, comments Det. Burke made to undersigned

counsel “that Jessie Albach and Lisa DeCarr were killed by the same individual”

(PC-R2. 219). Det. Burke further indicated that “no charges had ever been filed in

the Albach case because he just could not prove that Wayne committed that

murder” (PC-R2. 219).

The United States Supreme has explained repeated that a prosecutor has a

duty to disclose exculpatory evidence even though there has been no request by the

defendant, 527 U.S. at 280, and that the prosecuting attorney has a duty to learn of

any favorable evidence known to individuals acting on the government’s behalf.

Strickler, 527 U.S. at 281. In fact, the Supreme Court found that defense attorneys

should be able to presume that prosecutors have complied with their constitutional

obligation to disclose favorable evidence:

The presumption, well established by "‘tradition and experience,’"

"that prosecutors have fully "‘discharged their official duties’" United

States v. Mezzanatto, 513 U.S. 196, 210 (1995), is inconsistent with

the novel suggestion that conscientious defense counsel have a

procedural obligation to assert constitutional error on the basis of

mere suspicion that some prosecutorial misstep may have occurred.

by Detective Gullo, the State argues that collateral counsel

was on notice of Detective Gullo in 1989. That fact that

counsel was aware that Detective Gullo had done work in the

case, does relive the State of its obligation to disclose

reports that Detective Gullo did that were favorable to the

defense. There can be no question that the Brady material

that this Court identified in Young v. State, 739 So.2d 553

(Fla. 1999), concerned a witness known to the defense. The

same applies to the Brady material in a number of cases.

Cardona v. State, ___ So.2d ___ (Fla. July 11, 2002); State v.

Huggins, 788 So.2d 238 (Fla. 2001); Rogers v. State, 782 So.2d

373 (Fla. 2001). Brady violations were nonetheless found

because the State failed to disclose statements these

witnesses had made that was favorable to the accused. While

collateral counsel was obviously aware of Detective Gullo’s

27

Strickler, 527 U.S. at 287.

The State also has a duty to learn of any favorable evidence known to

individuals acting on the government's behalf. Id. at 281. “It is irrelevant whether

the prosecutor or police is responsible for the nondisclosure; it is enough that the

Staate itself fails to disclose.” Garcia v. State, 622 So.2d 1325, 1330 (Fla. 1993).

“The State is charged with constructive knowledge and possession of evidence

withheld by other state agents, including law enforcement officers.” Jones v. State,

709 So.2d 512, 520 (Fla. 1998).

Here, the State did not comply with its obligation to disclose favorable

evidence to the defense. Collateral counsel has been diligent in his efforts to pursue

Mr. Tompkins’ constitutional claims. However, collateral counsel cannot present

participation, because in fact counsel had received numerous

reports by Gullo, this does not change the fact that

collateral counsel never received the July 28, 1983 report

regardless of his efforts to obtain every report by Detective

was very favorable to the defense, i.e. Barbara DeCarr had

reported that Lisa DeCarr was alive and living with Jesse

Albach in the Hyde Park area.

28

At a minimum, Mr. Tompkins’ factual allegations of diligence warrant an

evidentiary hearing.

In Strickler v. Greene, 527 U.S. at, 287-288, the Supreme Court specifically

delineated the "three components of a true Brady violation." They are: 1)"The

evidence at issue must be favorable to the accused;" 2) "that evidence must have

been suppressed by the State, either willfully or inadvertently;" and 3) "prejudice

must have ensued."

The police reports that were identified in Mr. Tompkins Rule 3.850 motion

and in his Initial Brief were clearly not disclosed to trial counsel as the State

admitted in proceedings below on Mr. Tompkins’ motion for rehearing. Even the

contention in its brief before this Court that police reports were in the Jesse Albach

file, is a concession that the reports were undisclosed. In any event, Mr.

29

Tompkins’ factual allegation that the reports in question were not disclosed must at

this juncture be accepted as true.

With regard to the June 8, 1984 police report, the State wants to ignore the

favorable evidence contained therein and instead focus on the portion of the report

detailing Maureen Sweeney’s claim that Mr. Tompkins raped her. However, the

State neglects to point out that Mr. Tompkins was never charged with raping

Maureen Sweeney. Besides focusing on an allegation that law enforcement

ultimately discarded, the State asserts that statements regarding what Maureen

Sweeney and Mike Willis reported regarding what they heard about the

circumstances of Lisa’s disappearance would be inadmissible hearsay. First, the

report indicates that the information reported from Sweeney and Willis was gained

from Barbara DeCarr and Mr. Tompkins. Second, the information includes an

account of how Lisa’s brother, Billy tried to find her after she stormed out of the

house and disappeared. Third, the information provides information on where

Junior Davis lived and describes his efforts to look for Lisa, suggesting that he may

be an important witness to contact, and providing clues on how to find him.

Moreover, this Court has specifically held:

withheld information, even if not itself admissible, can be material

under Brady if its disclosure would lead to admissible substantive or

impeachment evidence. [Citations omitted] While the actual police

30

reports may not be admitted as substantive evidence, they can still

serve as the basis for Rogers’ Brady claim to the extent he could have

investigated and used the information contained in the reports.

Rogers v. State, 782 So.2d at 383 n. 11.

Further in Kyles v. Whitley, the United States Supreme Court recognized that

evidence that impeached the police investigation could establish a Brady violation:

Damage to the prosecution’s case would not have been

confined to evidence of the eyewitnesses, for Beanie’s various

statements would have raised opportunities to attack not only the

probative value of crucial physical evidence and the circumstances in

which it was found, but the thoroughness and even the good faith of

the investigation, as well. . . . [the evidence’s] disclosure would have

revealed a remarkably uncritical attitude on the part of the police.

* * *

Even if Kyles’s lawyer had followed the more conservative

course of leaving Beanie off the stand, though, the defense could have

examined the police to good effect on their knowledge of Beanie’s

statements and so have attacked the reliability of the investigation in

failing even to consider Beanie’s possible guilt and in tolerating (if not

countenancing) serious possibilities that incriminating evidence had

been planted.

514 U.S. 419, 445-6. (citations omitted).

Here, the undisclosed evidence would have not only been of value just on its

face, but the synergistic effect of the nondisclosures considered together would

have exposed law enforcement’s investigation techniques to substantial attack and

the results of that investigation as unreliable.

U.S. at 435-6 cautioned that in showing materiality,

petitioners:

need not demonstrate that after discounting the

inculpatory evidence in light of the undisclosed

evidence, there would not have been enough left to

convict. The possibility of an acquittal on a

criminal charge does not imply an insufficient

evidentiary basis to convict. One does not show a

Brady violation by demonstrating that some

31

As to the finally component of "a true Brady violation," prejudice is present

when “the cumulative effect of the suppression of the materials [ ] undermines

confidence in the outcome of the trial.” Rogers v. State, 782 So.2d 373 (Fla.

2001). As the United States Supreme Court e xplained in Kyles v. Whitley, 514

U.S. at 436, “The fourth and final aspect of Bagley materiality to be stressed here is

The State asserts that no newly discovered evidence would entitle Mr.

Tompkins to relief, because “nothing changes the fact that appellant assaulted and

killed Lisa DeCarr and buried her under the house” (Answer Brief of Appellee at

19). Seemingly, the State is asserting that it does not matter how it goes about

getting a conviction, whether it be through perjured testimony or presentation of

inculpatory evidence should have been excluded, but

by showing that the favorable evidence could

reasonably be taken to put the whole case in such a

different light as to undermine confidence in the

verdict.

that Junior Davis was a possible suspect. This is incorrect.

32

March 23, 1983, the day of Lisa DeCarr’s disappearance, and Kenneth Turco was

the only source of a confession by Mr. Tompkins. Any information which tends to

impeach their testimony and credibility is material.

The State fails to see the significance of lead sheets indicating police contact

Lisa’s boyfriend, is relevant to verifying or discrediting Kathy Stevens account of

the events of March 23, 1983. Had Kathy Stevens actually spoken to Junior Davis

on March 23, 1984 as she indicated in her trial testimony, Junior Davis would have

reported the information to the police.

In State v. Huggins, 788 So.2d 238, 244 (Fla. 2001), this Court analyzed a

Brady claim and stated:

The State presented a purely circumstantial case against Huggins. As

Angel was its key prosecutorial witness who established crucial details

in the State’s theory of the case, her credibility was critical.

33

Likewise, here the undisclosed impeachment evidence of Kathy Stevens was

extremely important given her role in obaining the conviction.

Finally, the State does not address Mr. Tompkins’ claim regarding the trial

court’s failure to conduct a cumulative analysis of the evidence turned over for the

first time in 2001 in conjunction with his previous Brady claims. Rather, the State

discards the previously asserted newly discovered evidence claims on the basis that

the claims have already been ruled on. Either, the State does not understand the

requirement of conducting a cumulative analysis or cannot assert any cases to the

contrary.

The issue for this Court is not whether this Court is convinced by the

undisclosed information, but whether the cumulative effect of the nondisclosures

casts the case in a new light undermining in the reliability of the outcome of

proceeding where the defense didn’t have access to the undisclosed exculpatory

judge is not examining simple whether he or she believes the evidence presented as

opposed to contradictory evidence presented at trial, but whether the nature of the

evidence is such a reasonable jury may have believed it”).

In reviewing the materiality of the nondisclosures, this Court must review the

net effect of the suppressed evidence and determine “whether the favorable

34

evidence could reasonably be taken to put the whole case in such a different light as

to undermine confidence in the verdict.” Maharaj v. State, 778 So. 2d 944, 953

(Fla. 2000). Further, “[i]n applying these elements, the evidence must be

considered in the context of the entire record.” Occhicone v. State, 768 So. 2d at

1041. When that is done, this Court must conclude that an evidentiary hearing is

required.

The State continues to argue that Mr. Tompkins’ request for DNA testing is

untimely and therefore procedurally barred. As Mr. Tompkins pointed out in his

initial brief, both the State and the trial court have confused newly discovered

evidence with newly developed technology. Furthermore, the State continues to

argue a procedural bar under Ziegler v. State, 654 So. 2d 1162 (Fla. 1995).

However, the State’s assertions of untimeliness are now moot given the enactment

of Fla. Stat. §925.11 (2001) as well as this Court’s adoption of Fla. R. Crim. P.

3.853 to allow DNA testing upon request. Therefore, the pivotal issue becomes

whether mitochondrial DNA testing would prove or disprove any material issues in

Mr. Tompkins has repeatedly argued that the identity of the victim is not the

only issue to be resolved by DNA testing. Obviously, if the DNA testing of the

35

bone, hair or other organic material established that the decedent was not Lisa

DeCarr, Mr. Tompkins would be exonerated. But, if DNA from someone other

than Wayne Tompkins was found present along with material possessing the DNA

of Lisa DeCarr, that would identify an assailant other than Wayne Tompkins and

would exonerate him as well. The State and the trial court have only focused on the

identity of the victim.

The trial court, in a conclusory statement, determined that DNA testing

would not determine Mr. Tompkins’ innocence because due to the location of the

body, any evidence would be contaminated. The trial court cited no causes for

contamination and ignored the fact that the Tampa Police Department sent evidence

to the FBI Lab for testing.

According to the FBI Lab report, several hairs discovered with DeCarr’s

body and forwarded for a comparison "are suitable for possible future

comparison" (PC-R2. 32). Evidently the FBI did not see a contamination issue.

Relying on the trial court’s determination that the evidence from the victim’s

body was contaminated, the State cites this Court’s recent decision in King v.

State, 808 So. 2d 1237 (Fla. 2002). Although the State believes the contamination

aspect in King is the same as in Mr. Tompkins case, this is clearly not so. There,

numerous rescue workers and law enforcement were active at the scene. In Mr.

36

Tompkins case, due to the fact that the body was found in a very small crawl space

under the house, a very limited number of law enforcement officers actually had

access to the body at the scene. Based on the reports and testimony of Florida

Law Enforcement agents, the excavation of the body was meticulous and time

consuming. Additionally, there is no evidence of how the body got under the

house. Unlike in King, where it was evident that the victim crawled through the

house and was then dragged from the house by rescue workers, in Mr. Tompkins

case the body could have been carried to its location, lessening the possibility of

contamination. Finally, in King the hair in question was too small a fragment for

any comparison or determination of origin. That is not the case here, where the

FBI has reported that the hair samples are suitable for future comparison.

Moreover, the new statute had not yet been passed when Mr. Tompkins’

request was pending before the circuit court. The court rule was not in effect. Mr.

Tompkins had no basis to know what showing he would have to make under those

provisions to obtain DNA testing. If this Court were to determine that Mr.

Tompkins’ showing in support of DNA testing were in some way inadequate, this

Court should nonetheless remand to permit Mr. Tompkins’ an opportunity to make

the requisite showing

37

Both the State and the trial court assert that Mr. Tompkins failed to present

any evidence of bad faith which would entitle him to relief on this issue. Mr.

Tompkins has detailed the actions of the State which constitute bad faith. The

State has made numerous misleading statements to the court and to the Governor’s

office regarding the existence of testable evidence. Detective Black’s testimony

established that his name and PIN number were forged by some unknown person.

Based on the misrepresentations and testimony of Detective Black and Sharon

Vollrath, it is clear that the State and the Tampa Police Department have failed to

adequately preserve crucial evidence from a capital trial, particularly in a case in

which the State has been aware of ongoing postconviction proceedings since 1989.

Not only has the State been aware and participated in the postconviction

proceedings, the State is aware that Mr. Tompkins has continually asserted his

innocence and disputed the identity of the victim.

The State attempts to paint its actions regarding the missing evidence as

diligent and helpful, when their actions were anything but helpful. From the onset

of the 2001 postconviction proceedings, the State has prevented Mr. Tompkins

from inspecting the evidence and has misled the trial court. While the State

indicates that it volunteered the information that the evidence was missing at the

April 11, 2001 hearing, it did not volunteer any information until after the court had

38

already ruled on the motion for DNA testing. Like wise, the State did not

accurately represent what was written on the property logs, and failed to be

concerned about the forged name and PIN on the property logs. The Tampa

Police Department refused to allow access to evidence in their possession, denying

that there was any evidence still at the police department, yet counsel for the police

department viewed the evidence the same day Mr. Tompkins was told it didn’t

exist. In its response, the State has failed to address any of these individual claims

of bad faith. The State only makes guesses as to what has happened to the

evidence and cannot point to any destruction order or established destruction

procedure which would legitimize the fact that the evidence allegedly no longer

exists.

Furthermore, the State suggests that Mr. Tompkins is acknowledging that he

cannot meet the bad faith requirement of Arizona v. Youngblood, 488 U.S. 51

(1988). This is not accurate. Mr Tompkins asserts he has shown bad faith on the

State’s part in preserving crucial physical evidence. Mr. Tompkins only urges in

the alternative that this Court reconsider its employ of the Youngblood standard in

light of advances in scientific testing and the evolving law pertaining to the

availability of DNA testing.

delineated as Issue V.

39

In its cross-appeal, the State argues that Mr. Tompkins should not have been

granted a new sentencing hearing. In its argument, the State never identifies the

applicable standard of review as to the portion of the circuit court’s order vacating

Mr. Tompkins’ sentence of death. See Rule 9.210(b)(5), Fla. R. App. Pro. The

applicable standard of review for factual resolutions of Rule 3.850 claims following

an evidentiary hearing requires that deference be afford the circuit court’s

determinations:

We recognize and honor the trial court’s superior vantage point

in assessing the credibility of witnesses and in making findings of fact.

The deference that appellate courts afford findings of fact based upon

competent, substantial evidence is an important principle of appellate

review. In many instances, the trial court is in a superior position “to

evaluate and weigh the testimony and evidence based upon its

observation of the bearing, demeanor, and credibility of the

witnesses.” Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976) When sitting

as the trier of fact, the trial judge has the “superior vantage point to see

and hear the witnesses and judge their credibility.” Guzman v. State,

721 So.2d 1155 (Fla. 1998), cert. denied, 119 S.Ct. (1999). Appellate

courts do not have this same opportunity.

notwithstanding, the State orally conceded that an evidentiary

hearing was warranted. During her testimony, ASA Vollrath

explained that she was unaware that the sentencing order had

been written by the State until after the Rule 3.850 motion

was filed on April 16, 2001, and the trial prosecutor had been

provided an opportunity to refresh his recollection and

recalled that he wrote the order. In her testimony, ASA

Vollrath acknowledged that in fact, “I did not participate in

the drafting of that response, but the attorney general’s

office drafted that response” (T. 210).

40

Stephens v. State, 748 So.2d 1028, 1034 (Fla. 1999).

When the evidence adequately supports two conflicting

theories, this Court’s duty is to review the record in the light most

favorable to the prevailing theory. Johnson v. State, 660 So.2d 637

(Fla. 1995), cert. denied, 116 S.Ct. 1550 (1996). Under that standard,

we will not alter a trial court’s factual findings if the record contains

competent, substantial evidence to support those findings.

Steinhorst v. State, 695 So.2d 1245, 1248 (Fla. 1997). See State v. Mills, 788

So.2d 249 (Fla. 2001); State v. Riechmann, 777 So.2d 342, 350 (Fla. 2000).

Here, the State stipulated that an evidentiary hearing was required to resolve

Mr. Tompkins’ claim that the State drafted sentencing order as a result of

was conducted in order to permit proper resolution of the factual issues raised by

Mr. Tompkins’ claim. Following the presentation of live witnesses, Judge Perry

made factual determinations and granted Rule 3.850 sentencing relief. This Court

must defer to those determinations.

41

Judge Perry announced that he was granting relief on the claim by stating:

There are no oral findings by Judge Coe, that show that he

independently found any aggravating or mitigating circumstances.

And while Mr. Benito may have been aware that Judge Coe would not

let him argue certain things there is no, you know, nothing that would

indicate to me that the judge ever indicated what the mitigating

circumstances were.

It was apparently an ex parte communication I think both the

statements by Mr. Benito and his recollection and Mr. Hernandez

would indicate that. And I think the law requires that the careful

balancing and weighing of those circumstances and they weren’t done

in this case. So I think he’s entitled to a new sentencing hearing.

(T. 224). Judge Perry indicated a written order would issues within a couple of

days. Two days later, the written order issued, and it stated:

During the April 17, 2001 hearing, the State conceded that an

evidentiary hearing was necessary on this claim. On April 18, 2001,

the Court conducted an evidentiary hearing on this claim. Based upon

the testimony of the witnesses and the argument of counsel, the Court

finds that Defendant is entitled to relief with regard to this claim.

After the evidentiary hearing, the Court finds that the former

State Attorney, Mike Benito, admitted to drafting the sentencing order

for the Defendant. The Court finds that Mr. Benito drafted the order

after being contacted by the judge or the judge’s office. Additionally,

the Court finds that the sentence of the Defendant was pronounced

immediately after the jury had provided its recommendation. (See

Transcript of Sentencing, attached).

Florida Statutes require the sentencing judge independently

weigh the aggravating and mitigating circumstances. Fla. State

921.141 (1985). It is impermissible for a judge to request that any

party draft any sentencing order which requires the weighing of

aggravating and mitigating circumstances. See Card v. state, 652

42

So.2d 344 (Fla. 1995) and Spencer v. State, 615 So.2d 688 (Fla.

1993).

The Court finds that testimony demonstrates that there was an

ex parte communication between the sentencing judge and the State in

this case. The Court finds that the limitation of argument that the

Court imposed for the State in arguing aggravating circumstances is

not a sufficient “weighing” by the trial judge. The Court finds that the

failure to independently weigh aggravating and mitigating

circumstances in this case entitles Defendant to relief.

(PC-R2. 441-42).

Nowhere in its brief does the State set forth the factual determinations made

by Judge Perry and then apply the appropriate standard of review to those findings.

The State asserts, "[s]ince the claim could have been discovered through the

exercise of due diligence, it is not proper to present [it] in a successive motion for

post-conviction relief." Answer Brief at 46. This argument is premised upon the

contention that "there was sufficient information for collateral counsel to pursue

leads and discover the information now urged." Answer Brief at 48.

However, the question of whether collateral counsel had "sufficient

information" "to pursue leads and discover the information now urged" is a factual

one. Proper resolution of this issue requires consideration of the testimony of the

witnesses at the evidentiary hearing. Judge Perry heard those witnesses testify live.

After hearing the testimony and listening to the arguments of counsel, including the

43

State’s tepid request that he consider "whether or not this could have been

discovered earlier through due diligence" (T. 219), Judge Perry found in favor of

Mr. Tompkins.

In its brief, the State argues that Mr. Tompkins did not exercise diligence in

discovering the fact that the trial court engaged in ex parte communications with the

State regarding the drafting of the sentencing order. The State points to an entry in

the case progress notes and collateral counsel’s knowledge of litigation of this type

of issue in other cases in which Judge Coe presided to suggest that Mr. Tompkins’

counsel did not exercise due diligence.

The entry in the progress notes on which the State relies reflects the

following: “set 10/11/85 for order per judge (told [assistant state attorney] Benito

yesterday on phone)” (PC-R1. 480). According to the State, this entry all by itself

should have alerted collateral counsel to the ex parte contact and prompted

investigation. However, Martin McClain, Mr. Tompkins’ collateral counsel,

testified that the entry was at best ambiguous reflecting that something had been set

for October 11, 1985, and that the clerk’s office notified ASA Benito (PC-R2.

203). Mr. McClain pointed out that such a communication between the clerk’s

office and a party was ministerial and common, that it did not indicate that an

44

improper ex parte communication had occurred. Therefore, counsel had no reason

to suspect improper conduct that violated the well-established rules against ex parte

communication.

The reasonableness of collateral counsel’s explanation is borne out by the

testimony of ASA Vollrath, testimony completely ignored by the State in its brief.

Ms. Vollrath was representing the State in the 2001 proceedings below, and was

called as Mr. Tompkins’ fourth witness. She testified as follows:

Q. When were you aware that Mr. Benito had told a

representative of the state that he had prepared the sentencing order in

this case?

A. Yesterday.

Q. So if he said a couple of days ago that would be he told

somebody else?

A. The situation that went down is that after your motion was

filed on Monday alleging ground five and we began which was the

ground that involved this sentencing order and we began making

inquiries. I spoke with Mr. Benito Monday afternoon I believe it may

have been Tuesday afternoon the days kind of run together but it was

post your filing of your motion.

[Objection omitted]

MS. VOLLRATH: After the motion was filed I contacted Mr.

Benito. Mr. Benito said, the statement to me that and my inquiry to

him was do you know, do you know any recollection whether the

State prepared the sentencing order. Mr. Benito said, golly, gee, I

really don’t recall and then he paused and then he said, if I had to

45

guess I would say that the State prepared the order. Yesterday, the

attorney general’s office faxed Mr. Benito a copy of the sentencing

order after I had spoken with Mr. Benito yesterday morning a second

conversation not the first one and then I learned from the attorney

general’s office yesterday that Mr. Benito had said that he believed

that it was his product.

BY MR. SCHER:

(T. 211-12)(emphasis added). This testimony completely negated any argument

that the cryptic case progress notation “clearly plac[ed] any appellate or collateral

counsel on notice” (PC-R2. 414). ASA Vollrath, the assigned post-conviction

prosecutor testified that she had “had no reason to believe” that Mike Benito had

written the sentencing order.

In collateral counsel’s closing argument before Judge Perry, he specifically

relied upon ASA Vollrath’s testimony as disposing of the State’s argument that the

case progress note should have alerted counsel to the claim. Since it did not alert

the assigned prosecutor to the claim, collateral counsel argued the defense should

not be held to higher standard and to have divine that improper ex parte occurred

from such a cryptic notation:

46

And certainly if the State is not in a position to know the record and

know the basis for that claim, it seems to me that the defense should

not be in any different position in reading this.

(T. 215).

With regard to the State’s assertion that Mr. McClain, the 1989 collateral

counsel, had knowledge of Nibert v. State, 508 So. 2d 1 (Fla. 1987) and Holton v.

State, 573 So. 2d 284 (Fla. 1990), and that therefore, should have known that Judge

Coe was delegating the drafting of the sentencing orders. Answer Brief at 48

(“both [cases] involved Judge Coe and the issue of his delegating the drafting of

the sentencing order”). The State neglects to report that Mr. McClain testified that

he was quite aware of the actual holding by this Court in those cases and that the

holdings did not provide a basis for believing that Judge Coe had ever requested

the State to draft the sentencing order via ex parte communication.

Mr. McClain’s explained that in Holton this Court had specifically stated that

there was no evidence of ex parte communication contained in the record (PC-R2.

206-7). In fact, this Court had explained, “Holton also claims that the state rather

than the trial judge was responsible for preparing the written findings of fact in

support of the death penalty. The record, however, does not support this

contention.” Holton at 291. The issue in Holton was not one of ex parte

communication, but rather whether the court’s written findings imposing the death

grounds.

2001 in Rudolph Holton’s case, that counsel learned that

contrary to the opinions in Nibert and Holton, Judge Coe had a

standard practice of directing the State through ex parte

contact to write capital sentencing orders.

47

sentence were prepared by the State. The Court concluded that record did not

support such a contention. Holton.

In Nibert v. State, 508 So. 2d 1, 3-4 (Fla. 1987), the relevant issue was the

State’s drafting of the sentencing order after the court “conducted the weighing

process necessary to satisfy the requirements of section 921.141, Florida Statutes

(1985).” While addressing that issue, this Court observed “that defense counsel

did not object when the court instructed the state attorney to reduce his findings to

writing.” Nibert, 508 So.2d at 4. Clearly, there was no ex parte communication.

Neither case found any ex parte contact had occurred. In neither case did this

notice of any impropriety by Judge Coe. In fact, the two opinions would suggest

There was evidence supporting Mr. Tompkins’ position that collateral

counsel was diligent. Steinhorst. Clearly, there was competent and substantial

evidence to support a determination that collateral counsel was diligent. Judge

48

Perry’s factual resolution is amply supported by competent, substantial evidence.

The State’s argument completely the fact that neither the trial prosecutor,

Mike Benito, nor Judge Coe disclosed the ex parte communication they shared.

Mr. McClain testified, it is not collateral counsel’s duty to assume that judges and

prosecutors violate their ethical obligations (PC-R2. 207). See Porter v. Singletary,

Assistant State Attorney Benito had an ethical obligation to disclose the improper

ex parte communication regarding the drafting of the sentencing order. See

Strickler v. Greene, 119 S.Ct. At 1949 ("the non-disclosure and the open file policy

–- are both fairly characterized as conduct attributable to the State that impeded

trial counsel’s access to factual basis for making a Brady claim."). Neither the

State, nor Judge Coe ever notified Mr. Tompkins’ counsel that Judge Coe’s

standard practice was to have the State prepare the findings in support of the death

sentence.

This Court has held in a capital post-conviction proceeding that, “the State is

obligated to disclose any document in its possession which is exculpatory. This

obligation exists regardless of whether a particular document is work product or

exempt from chapter 119 discovery.” Johnson (Terrell) v. Butterworth, 713 So. 2d

49

985, 986 (Fla. 1998)(citations omitted). In Johnson, the Court found that the

State’s obligation to disclose favorable evidence was not extinguished by either a

conviction or a sentence of death. It makes no difference that a capital defendant is

litigating his case in post-conviction, “the State is under a continuing obligation to

disclose any exculpatory evidence.” Id. at 987; see also Roberts v. Butterworth,

668 So. 2d 580 (Fla. 1996)(finding that Brady obligation continues in postconviction).

This obligation arises under Brady v. Maryland, 373 U.S. 83 (1963). As this

Court recently explained, “Under Brady, the government’s suppression of

favorable evidence violates a defendant’s due process rights under the Fourteenth

Amendment. See Brady, 373 U.S. at 86 (suppression of confession is violation

Fourteenth Amendment).” Rogers v. State, 782 So.2d 373, 376 (Fla. 2001).

Similarly, the United States Supreme Court made clear in Kyles v. Whitley, 514

U.S. 419 (1995), that due process requires the prosecutor to fulfill his obligation of

knowing what material, favorable and exculpatory evidence is in the State’s

possession and disclosing that evidence to defense counsel:

Unless, indeed, the adversary system of prosecution is to descend to a

gladiatorial level unmitigated by any prosecutorial obligation for the

sake of truth, the government simply cannot avoid responsibility for

knowing when the suppression of evidence has come to portend such

an effect on a trial’s outcome as to destroy confidence in its result.

50

Kyles, 514 U.S. at 439. See Strickler v. Greene, 527 U.S. 263 (1999). In order to

comply with Brady, therefore, “the individual prosecutor has a duty to learn of

favorable evidence known to others acting on the government’s behalf.” Kyles,

514 U.S. at 437; Rogers v. State.

In Strickler v. Greene, the United States Supreme Court reiterated the “special

role played by the American prosecutor” as one “whose interest . . . in a criminal

prosecution is not that it shall win a case, but that justice shall be done.” 527 U.S.

263, 281 (1999), quoting Berger v. United States, 295 U.S. 78, 88 (1935). The

Court also repeated that a prosecutor has a duty to disclose exculpatory evidence

even though there has been no request by the defendant, 527 U.S. at 280, and that

the prosecuting attorney has a duty to learn of any favorable evidence known to

individuals acting on the government’s behalf. Strickler, 527 U.S. at 281. The

Supreme Court concluded that defense attorneys should be able to presume that

prosecutors have complied with their constitutional obligation to disclose favorable

evidence:

The presumption, well established by "‘tradition and experience,’"

"that prosecutors have fully "‘discharged their official duties’" United

States v. Mezzanatto, 513 U.S. 196, 210 (1995), is inconsistent with

the novel suggestion that conscientious defense counsel have a

procedural obligation to assert constitutional error on the basis of

mere suspicion that some prosecutorial misstep may have occurred.

51

Strickler, 527 U.S. at 287.

Here, the State did not comply with its obligation to disclose favorable

evidence to the defense. Had either the State or Judge Coe disclosed the fact that

the sentencing order had been written by State and provided to the judge on an ex

parte basis, Mr. Tompkins’ counsel would presented the claim and sought to

disqualify Judge Coe from the 1989 proceedings:

Moreover this establishes that, um, Judge Coe should have

recused himself back in 1989 from presiding over the 3.850

proceeding that was going on in 1989 and ex parte contact with Mike

Had I known I would have filed a motion to recuse Judge Coe

in which case he would have been required to recuse himself and that

tainted the entire proceedings and requires they be done over and Mr.

Tompkins be put back in the position he would have been in had the

disclosure occurred.

(T. 216-17)(emphasis added).

County), the State confessed error had occurred when it authored the findings in

support of the death sentence without the defense’s knowledge. On August 3,

2000, the State entered into a joint stipulation with Mr. Holton that sentencing relief

52

was required. At Mr. Tompkins evidentiary hearing, Mr. McClain detailed how and

when he came about this new information:

Um, well, currently I am employed in New York with the Legal Aid

Society and this past fall I had been in touch with Linda McDermott

who is doing the Rudolph Holton cse and she had asked me if I would

participate in the Holton hearing which is scheduled to start this

afternoon and I had agreed to do that and so I had taken some time

off in March and April from New York to actually come down and

help on the Holton hearing when the death warrant was signed on the

Wayne Tompkins’ case and so actually, you know, it was on Saturday

both cases and started comparing things and suddenly discovered in

the record that the circumstances of Mr. Tompkins’ case was identical

to Mr. Holton’s case when it came to the proceedings at the penalty

stage and the judge sentencing and the sentencing order and I realized

that the State had confessed error last August in th Holton case as to

the sentencing order and so that’s when I started investigation and sort

of figured things out.

(PC-R2. 201).

In Mr. Holton’s case, the presiding judge was Judge Coe, the same judge

who presided at Mr. Tompkins trial. In Holton’s case, Judge Coe immediately

imposed a sentence of death as soon as the jury returned the death

recommendation. In Mr. Tompkins’ case, Judge Coe followed the same procedure

(R. 457-58). In Mr. Holton’s case, the findings in support of the death sentence

were not read at the time of the sentencing and were not filed with the clerk until six

weeks later. In Mr. Tompkins’ case, Judge Coe followed the same procedure; the

53

findings in support of the death sentence were filed with the clerk four weeks after

the death sentence was announced (R. 678). And in fact, even though Mike Benito

had prosecuted Mr. Tompkins’ case, Joe Episcopo appeared as the State’s

representative at the hearing on Mr. Tompkins’ motion for a new trial on October

4, 1985. This was two weeks before the clerk’s office filed the findings in support

of the death sentence. Mr. Episcopo’s involvement is significant because he was

the prosecutor who handled Mr. Holton’s case.

Aware of that relief had been stipulated to in Holton because of his own

involvement in that case, Mr. McClain launched a timely investigation of the

Tompkins’ record. He confirmed his understanding of the State’s position in

Holton with Linda McDermott:

McDermott regarding her conversation with Jack Gutman when the

State agreed to or confessed error in the Holton case.

(PC-R2. 201-2).

Other than the one statement to Ms. McDermott, the State never advised Mr.

Tompkins’ counsel that Judge Coe’s standard practice was to have the State

prepare the findings in support of the death sentence. See Strickler, 119 S.Ct at

1951. Since the basis of this claim is ex parte contact between the State and Judge

Coe in the drafting of the findings in support of the death penalty, Mr. Tompkins

54

could not plead this claim until the ex parte contact was revealed. Undersigned

counsel learned of Linda McDermott’s conversation with the prosecutor in Holton

through happenstance. However, having learned that the State confessed error on

the claim in Holton because of Judge Coe’s standard practice, counsel immediately

and timely raised the issue on behalf of Mr. Tompkins. Mr. Tompkins and his

counsel exercised due diligence.

The State concedes that the record below supports a finding that there was

an ex parte contact between Judge Coe and Prosecutor Benito. The State even

acknowledges that the procedure conducted by Judge Coe was wrong, "It is clearly

inconsistent with what is now understood to be the proper manner of preparing

sentencing orders, as explained in cases such as Card v. State, 625 So. 2d 344

(Fla. 1995), Spencer v. State, 615 So. 2d 688 (Fla. 1993) and State v. Reichman,

777 So.2d 342 (Fla. 2000)." Answer Brief at 50.

The State suggests that "we must temper today’s condemnation" of the ex

parte communication "with the acknowledgment that Tompkins’ trial occurred

seventeen years ago in 1985." Answer Brief at 50. This suggestion overlooks that

fact that ex parte communication had been improper in 1985 and has been ruled

55

improper throughout the intervening years. This Court while reprimanding a judge

for engaging in improper ex parte communication in 1985 stated:

Except under limited circumstances, no party should be allowed the

advantage of presenting matters decided by the judge without notice to

all other interested parties. This canon was written with the clear intent

of excluding all ex parte communications except when they are

expressly authorized by statutes or rules.

In re Inquiry Concerning a Judge: Clayton, 504 So.2d 394, 395 (Fla. 1987).

criminal case, the presiding judge called an Assistant Attorney General in order to

Ex parte communication between a trial judge and assistant attorney

generla concerning a pending criminal case is totally inappropriate and

will mandate reversal if: 1) The defense has requested that the trial

judge recuse himself or has requested a mistrial which is denied; 2)

where the defendant can demonstrate that there was prejudice as a