IN THE SUPREME COURT OF FLORIDA

BENNIE DEMPS,

Appellant,

vs. CASE NO. : SC 00-1118

STATE OF FLORIDA,

Appellee.

__________________/

RESPONSE IN OPPOSITION TO ANY MOTION

FOR STAY OR FOR WITHDRAWAL OF COUNSEL

THE STATE OF FLORIDA, by and through undersigned counsel,

hereby files this response in opposition to motion for stay of

execution or withdrawal of counsel filed by Mr. George Schaeffer

or that might be filed by Mr. William Salmon in this case. The

State shows as follows:

1. On July 2, 1999, Demps filed his fourth 3.850 motion, the

summary denial of which is the subject of this appeal.

2. On August 10, 1999, William Salmon filed in circuit court

his notice of appearance as retained counsel in this case.

Bennie Demps was at that time represented by registry counsel

Baya Harrison. At a hearing to seek clarification of the

representation issue, Demps, after consultation with his

retained attorney, advised the court that he wished Mr. Salmon

to represent him and that he did not wish Mr. Harrison to do so.

The court therefore relieved Mr. Harrison of any further

responsibility to represent Demps. Mr. Salmon was advised at

that hearing that he should not look to the State of Florida for

payment of his fees in this case. See Order of November 30,

1999 (copy attached).

3. Not only has William Salmon represented Bennie Demps

continuously since August 10, 1998, but he has represented Demps

previously. Mr. Salmon was appointed in February of 1997 to

represent Demps on appeal from the summary denial of his third

3.850 motion, see petitions for payment of fees and costs for

services rendered between 2/10/97 and 11/26/97 (copies

attached), and Mr. Salmon briefed and argued the case on appeal,

as reflected in this Court’s opinion in Demps v. State, 714

So.2d 365 (Fla. 1998). Thereafter, Mr. Salmon represented Demps

in 1998, during his bid for clemency. See Affidavit of Bill

Salmon, dated April 13, 2000 (copy attached).

4. On April 24, 2000, while Demps’ fourth 3.850 motion was

pending in the circuit court, Governor Bush issued a death

warrant for Mr. Demps.

5. On April 26, 2000, this Court ordered that any further

proceedings in this case be expedited.

6. On May 3, 2000, the circuit court held a status hearing,

following which it scheduled a hearing for May 12, 2000, to

determine whether an evidentiary hearing would be required.

7. On May 12, 2000, such hearing took place in the circuit

court. Following additional submissions by both parties, the

circuit court summarily denied the 3.850 motion, by written

order dated May 22, 2000. Mr. Salmon filed on behalf of Mr.

Demps a motion for rehearing, which the circuit court denied by

written order dated May 23, 2000.

8. At no time during his representation of Mr. Demps to

this point had Mr. Salmon informed the circuit court, this

Court, or the State of any limitations in his representation of

Mr. Demps. The State, the circuit court and this Court have all

expected that Mr. Salmon would continue his representation of

Mr. Demps until he either obtained relief for Mr. Demps or

exhausted all avenues of appeal.

9. However, by letter to this Court dated May 24, 2000 -almost

two years after Mr. Salmon was retained to represent Mr.

Demps in this case and a year and a half after registry counsel

representing Mr. Demps had been relieved of his duties in this

case at Demps’ behest - Mr. Salmon stated for the first time

that he had been "retained on behalf of Mr. Demps only here in

Bradford County Circuit Court on his pending motion for post

conviction relief," and that he had "not been retained and [did]

not represent Mr. Demps on any proceedings in the Florida

Supreme Court or other judicial bodies." Letter of May 24, 2000

(copy attached). Mr. Salmon has provided no reason why he

cannot represent Mr. Demps except for money.

10. To date, Mr. Salmon has never filed a request to

withdraw in this or any court. However, in light of the above

letter, the State anticipates that he might file such request.

The State would strongly urge that any such request be denied.

11. Mr. Salmon’s knowledge of Mr. Demps’s case extends at

least to February of 1997, when he was appointed to represent

Demps on his previous appeal. Moreover, he has continuously

represented Mr. Demps in this case since August 10, 1999. He

clearly is knowledgeable about all aspects of Mr. Demps case and

is fully qualified to represent Mr. Demps on appeal. As such,

and considering the circumstances of this case, including

especially that (a) Mr. Demps is currently under a death warrant

with execution scheduled for May 31, 2000, and (b) Mr. Salmon

has not timely moved to withdraw from representation in this

case, Mr. Salmon has a strong, if not overwhelming, ethical

obligation to continue his representation of Mr. Demps in any

further litigation in this matter. See e.g., R. Regulating Fla.

Bar 4-1.16; Fla. R. of App. P. 9.140(b)(5); Fla. R. of Jud. Adm.

2.060(j).

12. Although Mr. Salmon cites lack of funds to undertake

representation on appeal, nothing has ever prevented Mr. Salmon

from timely alerting the parties and the courts to any claimed

limitations of his retained representation so that substitution

of counsel could be timely planned for, and nothing yet prevents

Mr. Salmon from seeking appointment to represent Mr. Demps on

appeal. He has done neither of these things, however, and he

should not be allowed just suddenly to withdraw from

representation of Mr. Demps in the middle of death warrant

litigation, particularly in the absence of any suggestion that

Mr. Demps wishes Mr. Salmon to withdraw from this case. Cf.

Stafford v. Mesnik, 63 F.3d 1445 (7th Cir 1995)(attorney seeking

to withdraw must establish that his client consents or that

"valid and compelling reason" exists for court to grant motion

over defendant’s objection). Mr. Salmon’s withdrawal at the

present juncture either would fail to protect Mr. Demps’

legitimate interest in being represented by counsel familiar

with his case, or would allow his departure to become a vehicle

for achieving the delay of further proceedings in this case and

for subverting the orderly administration of justice. Either

way, this Court should refuse to countenance such action. See,

e.g., Evans v. State, 741 So.2d 1190 (Fla. 4th DCA

1999)(substitution of counsel may be limited in favor of

considerations of judicial administration or if made in bad

faith for the sake of arbitrary delay or otherwise to subvert

judicial proceedings).

13. This Court should deny any attempt by Mr. Salmon to

withdraw from representing Bennie Demps. See, e.g., Billings,

et al v. Isom, 701 So.2d 1271 (Fla. 5th DCA 1997) (counsel’s

motion to withdraw properly denied, considering length of time

counsel had represented client and client’s inability to secure

other counsel); Hollis v. F.B. Myers, 482 So.2d 568 (Fla. 4th

DCA 1986) (counsel’s motion to withdraw on the ground that his

fee arrangement was inadequate was properly denied in view of

age of case, the many continuances that had been already been

granted, and the probability that requiring new counsel would

exacerbate the delay); Madrid v. Gomez, 150 F.3d 1030, 1038-39

(9th Cir. 1998)("In California, as elsewhere, attorneys may not

withdraw from ongoing litigation if so doing would materially

and adversely affect the interests of the client;" withdrawal

appropriately denied where securing replacement counsel would be

difficult at best, and any replacement counsel "would lack

current counsel’s unique familiarity with the facts and

circumstances" of the case); Ryan v. Butera, 193 F.3d 210 (fn.

4) (3rd Cir. 1999) (under Pennsylvania law, an attorney "may

withdraw from representation only for reasonable cause and upon

reasonable notice").

14. On the afternoon of May 24, 2000, circuit court judge

Stanley Morris appointed Mr. George Schaefer as co-counsel for

appellate purposes in this case. At approximately 5 p.m. on May

25, 2000, Mr. Schaefer filed in this Court a motion for stay or

in the alternative to withdraw from representation, which is

very similar to the one he filed in circuit court and which was

denied by Judge Morris. In essence he contends that he is not

familiar enough with this case to represent Mr. Demps unless he

is given additional time to familiarize and prepare by means of

a stay of execution; lacking such additional time, he seeks

withdrawal from representation. However, this motion fails to

acknowledge that Mr. Schaefer is neither sole counsel nor lead

counsel. The State will not address the issue of whether a stay

would be appropriate or necessary if Mr. Schaefer were the only

attorney representing Mr. Demps, because so long as Mr. Salmon

remains in this case, Mr. Schaeffer’s role is limited to

assisting Mr. Salmon. Because Mr. Salmon is demonstrably

capable of representing Mr. Demps by himself, and Mr. Schaefer’s

role is limited, any motion for stay should be denied. Mr.

Salmon is amply familiar with this case and there is no reason

why he cannot litigate this appeal in a timely manner,

especially since qualified co-counsel has been appointed to

assist him.

WHEREFORE, the State respectfully asks this Court to deny

any motion to withdraw or for stay of execution.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

_____________________

CURTIS M. FRENCH

Assistant Attorney General

Florida Bar No. 291692

OFFICE OF THE ATTORNEY GENERAL

The Capitol

Tallahassee, FL 32399-1050

(850) 414-3300 Ext. 4583

FAX: (850) 487-0997

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above

has been furnished by U.S. Mail and by facsimile transmission to

William Braley Salmon, P.O. Box 1095, Gainesville, FL 32602-

1095, to George F. Schaefer, 1005 S.W. 2nd Ave, Gainesville, FL

32601-6116, and to Bennie Demps, Florida State Prison, this 24^th

day of May, 2000.

__________________________

CURTIS M. FRENCH

Assistant Attorney General