SUPREME COURT OF FLORIDA

BENNIE DEMPS,

Petitioner,

CASE NO.:

vs.

JEB BUSH, in his Official Capacity

as Governor of the State of Florida,

and ROBERT BUTTERWORTH,

in his Official Capacity as Attorney

General of the State of Florida,

Respondents.

______________________________/

PETITION FOR WRIT OF MANDAMUS

The petitioner, Bennie Demps, through his attorney, Bill Salmon, files this

petition for a writ of mandamus directed to the respondents, Governor Jeb Bush

and Attorney General Robert Butterworth.

A. JURISDICTION

1. This court is constitutionally authorized to issue writs of mandamus

"to state officers and state agencies" under Article V, §3(b)(8) of the Florida

Constitution.

B. THE FACTS ON WHICH PETITIONER RELIES

2. On April 17, 1978 the Circuit Court of Florida, Eighth Judicial Circuit,

in and for Bradford County, Florida rendered a death sentence for the petitioner in

Bradford County Case No. 77-116-CF for the offense of first degree murder of

Alfred Sturgis on September 6, 1976.

3. Petitioner is innocent of the first murder charge filed in Bradford

County Case No. 77-116-CF.

4. On April 24, 2000 Florida Governor Jeb Bush issued a death warrant.

A copy of this death warrant can be found at attachment A in the appendix to this

petition.

5. At the time that the Governor issued the death warrant, the petitioner

had a pending motion for postconviction relief in the Circuit Court of Bradford

County in which the petitioner sought to vacate his first degree murder conviction

and death sentence because the prosecution withheld exculpatory evidence.

6. The withheld exculpatory evidence was a memorandum dated

September 7, 1976 from former Florida Department of Corrections (D.O.C.) Chief

Prison Inspector and Investigator Cecil L. Sewell to then Florida D.O.C. Secretary

Louie L. Wainwright which will be referred to in this petition as the "Sewell report."

The murder victim, Alfred Sturgis, was an inmate serving a life sentence for second

degree murder at the time that he was stabbed to death. The "Sewell report"

contains the following statement: "The stabbing occurred at approximately 4:30

p.m., September 6, 1976 and before Sturgis died, he named James Jackson, B/M,

#029667, as his assailant."

7. At the time that this death warrant was issued by respondent Governor

Bush, the petitioner was represented in the postconviction relief case pending in the

Circuit Court of Bradford County, Florida by a privately retained attorney, William

Salmon.

8. By way of a copy of a letter dated April 24, 2000 addressed to

Warden James Crosby, Governor Jeb Bush notified Mr. Salmon that the execution

of the petitioner was scheduled for Wednesday, May 31, 2000 at 6:00 p.m. A copy

of this letter is included at attachment B in the appendix to this petition.

9. The Circuit Court of Bradford County denied the petitioner’s

postconviction relief motion without an evidentiary hearing.

10. On May 24, 2000 the Circuit Court of Bradford County appointed

attorney George F. Schaefer as cocounsel to Bill Salmon to represent the petitioner

in his appeal to this court of the Bradford Circuit Court’s denial of postconviction

relief.

11. The petitioner’s appeal of the denial of postconviction relief was

docketed in this court as case no. SC00-1118.

1 If this court was somehow informed by the State of the new execution date of June

7, 2000, such notification was ex parte by the State. Petitioner’s counsel demands full

disclosure from the State of any such ex parte communications.

12. On Saturday, May 27, 2000 this court rendered an order stating: "The

execution of Bennie Demps is stayed until 5:00 p.m. on Wednesday, June 7, 2000."

A copy of this order is included at attachment C to this petition.

13. On Wednesday, May 31, 2000 petitioner’s court-appointed counsel,

George F. Schaefer, was in Tallahassee, Florida working on petitioner’s case. Mr.

Schaefer read an article in the May 31, 2000 edition of The Tallahassee Democrat

that Governor Jeb Bush had rescheduled petitioner’s execution for 6:00 p.m. on

June 7, 2000. Mr. Schaefer read a similar article in the May 31, 2000 edition of The

Gainesville Sun. Neither Mr. Schaefer nor Mr. Salmon had received any notice

from Attorney General Robert Butterworth or from any of his subordinates that the

execution had been rescheduled to June 7, 2000. 1

14. Assistant Attorney General Curtis French was assigned by Attorney

General Robert Butterworth to handle the petitioner’s appeal to this court of the

trial court’s denial of petitioner’s postconviction relief motion in case no. SC00-

1118. The next day (June 1, 2000) Mr. Schaefer faxed a letter to Mr. French. In

the letter, Mr. Schaefer requested confirmation of the accuracy of the media reports

that the petitioner’s execution had been rescheduled for 6:00 p.m. on June 7, 2000.

A copy of Mr. Schaefer’s letter is included at attachment D in the appendix to this

petition.

15. In response to Mr. Schaefer’s letter, Assistant Attorney General Curtis

French verbally confirmed in a telephone call on June 1, 2000 that the new

execution date and faxed to Mr. Schaefer a copy of Governor Jeb Bush’s letter of

May 30, 2000 to Warden James Crosby setting the execution for Wednesday, June

7, 2000 at 6:00 p.m. A copy of the three-page fax sent from Mr. French to Mr.

Schaefer is included at attachment E in the appendix to this petition.

16. At the time that Governor Bush and Warden Crosby scheduled the

petitioner’s execution (May 30, 2000) for Wednesday, June 7, 2000 at 6:00 p.m.,

this court’s stay of execution order rendered on May 27, 2000 was still in effect.

At the time of this petition, that stay order has not been lifted or dissolved, yet the

June 7, 2000 execution date remains scheduled by respondent Governor Bush.

C. NATURE OF THE RELIEF SOUGHT

17. The petitioner seeks an order directed at respondent Governor Jeb

Bush to comply with §922.06(b), Fla. Stat., by abstaining from scheduling the

petitioner’s execution until after this court’s stay order of May 27, 2000 rendered in

case no. SC00-1118 has been lifted or dissolved.

18. Petitioner also seeks a writ of mandamus directed to Attorney General

Robert Butterworth requiring him to comply with §922.06(2)(b), Fla. Stat., by

promptly notifying the petitioner’s counsel of record, George F. Schaefer and

William Salmon, of the lawfully scheduled date and time of execution of the

petitioner’s death sentence.

19. Petitioner has no other adequate, complete, or specific legal remedy.

D. ARGUMENT IN SUPPORT OF THIS PETITION

In Blitch v. Buchanan, 131 So. 151 (Fla. 1930), the petitioner, who had been

sentenced to death for a capital crime, argued that a death sentence by electrocution

cannot be legally executed by the superintendent of the state prison, because such

superintendent was not elected by the citizens or appointed by the Governor under

the then existing Florida Constitution. In rejecting this contention, this court held

that the execution of the death sentence is a nondiscretionary duty governed by

statute:

The nondiscretionary authority and duty of executing a death

sentence is conferred upon the superintendent of the state prison by the

statute, by the sentence of the court, and by the warrant of the Governor,

whose agent the superintendent is, for the purpose of executing the

judicial judgment and sentence. The execution of the sentence and

warrant is a specific mandatory function conferred by statute and not

requiring the exercise of independent official judgment, discretion, or

authority.

Blitch, 131 So. at 157.

Effective November 3, 1998, the citizens of Florida amended the Florida

Constitution to provide in pertinent part:

The death penalty is an authorized punishment for capital crimes

designated by the Legislature. . . . Methods of execution may be

designated by the legislature, and a change in any method of execution

may be applied retroactively.

The current statutes governing the scheduling of executions are found at

§§922.052 and 922.06, Fla. Stat.. At §922.052, Fla. Stat., the following is found:

(1) When a person is sentenced to death, the clerk of the court

shall prepare a certified copy of the record of the conviction and

sentence, and the sheriff shall send the record to the Governor. The

sentence shall not be executed until the Governor issues a warrant,

attaches it to the copy of the record, and transmits it to the

superintendent, directing the superintendent to execute the sentence at a

time designated in the warrant.

(2) If, for any reason, the sentence is not executed during the week

designated, the warrant shall remain in full force and effect and the

sentence shall be carried out as provided in s. 922.06.

At 922.06, Fla. Stat., the following is found:

(1) The execution of a death sentence may be stayed only by the

Governor or incident to an appeal.

2 In order to comply with the notice requirements of Article I, §9 of the Florida

Constitution the Attorney General’s certification must be immediately filed with the court

and served on petitioner’s counsel.

(2)(a) If execution of the death sentence is stayed by the Governor,

and the Governor subsequently lifts or dissolves the stay, the Governor

shall immediately notify the Attorney General that the stay has been lifted

or dissolved. Within 10 days after such notification, the Governor must

set the new date for execution of the death sentence.

(b) If execution of the death sentence is stayed incident to an

appeal, upon certification by the Attorney General that the stay has been

lifted or dissolved, within 10 days after such certification, the Governor

must set the new date for execution of the death sentence. When the new

date for execution of the death sentence is set by the Governor under this

subsection, the Attorney General shall notify the inmate’s counsel of

record of the date and time of execution of the death sentence.

In accordance with the Florida Constitution, the Governor and Attorney

General must comply with the procedures for execution set forth in these statutes.

The respondents lack discretion under the statutes on when an execution may be

rescheduled and whether prompt notice must be given petitioner’s counsel of

record. So long as this court’s stay of execution is in effect, the Governor is not

free to set a new date for execution of the death sentence. Once the stay has

expired or is otherwise lifted or dissolved, the Governor must first wait for the

formal certification of the Attorney General before scheduling a new execution

date.2 This conclusion is evident by the plain and unambiguous language of the

statute, "If execution of the death sentence is stayed incident to an appeal, upon

certification by the Attorney General that the stay has been lifted or dissolved,

within 10 days after such certification, the Governor must set the new date for

execution of the death sentence." (Emphasis added).

A basic rule of statutory construction is that when the words of a statute are

plain and unambiguous and convey a definite meaning, courts are not permitted to

resort to rules of construction. The courts must instead read the statute as written,

because to do otherwise would constitute an abrogation of legislative power.

Nicoll v. Baker, 668 So.2d 989, 990-991 (Fla. 1996) citing Holly v. Auld, 450 So.

2d 217 (Fla. 1984). See also, Savona v. Prudential Ins. Co. of America, 648 So.

2d 705, 707 (Fla. 1995); Weber v. Dobbins, 616 So. 2d 956, 958 (Fla. 1993); and

Forsythe v. Longboat Key Erosion Control District, 604 So. 2d 452, 454 (Fla.

1992). Statutes should be construed to give each word effect. Christo v. State,

Department of Banking and Finance, 649 So. 2d 318, 321 (Fla. 1st DCA 1995)

citing Gretz v. Florida Unemployment Appeals Comm'n, 572 So. 2d 1384 (Fla.

1991). The phrase "has been lifted or dissolved" is in the past tense. The statute

clearly does not provide that the Governor can set a new execution date in

anticipation that the stay will, by its own terms, be lifted or dissolved on a date

certain. Such a construction of the statute would render this phrase meaningless.

3 Press releases to the media which might come to the attention of petitioner’s

counsel do not satisfy this statutory obligation of the Attorney General to give specific and

prompt notice to petitioner’s counsel of record of a rescheduled execution date.

Furthermore, under Article I, §9 of the Florida Constitution and §922.06(2)(b), Fla.

Stat. the Attorney General must then give prompt and reasonable notice to the

petitioner’s counsel of record of the date and time of the execution of the death

sentence.3 This language makes it clear that petitioner has a clear legal right to

compel performance with these laws.

If this court denies this petition for writ of mandamus, the petitioner will

suffer irreparable harm if the execution proceeds forward as planned for June 7,

2000 at 6:00 p.m. Assuming that this court affirms the trial court’s denial of the

petitioner’s motion for postconviction relief from his death sentence, the

Governor’s current execution date, scheduled in blatant violation of §§922.052 and

922.06, Fla. Stat., shortens the amount of time that the petitioner will have to seek

further review of the violation of petitioner’s federal constitutional rights by the

federal courts. By requiring the respondents to comply with the law with respect to

scheduling and notice of petitioner’s execution, the petitioner is guaranteed that his

current counsel will have prompt notice of the new execution date and that this date

can only occur within the ten day period after the Attorney General’s formal

certification that the stay has been lifted or dissolved. The Governor’s current

execution date also shortens the period of time that petitioner can apply for a stay

application from those federal courts at a time when every minute for petitioner to

seek relief could literally mean the difference between life and death by lethal

injection.

Requiring the respondents to strictly comply with these statutes is also

consistent with the orderly administration of justice and public policy. Denial of the

requested relief only invites further legal chaos in this case. An execution

scheduled to occur only one hour after this court’s stay order is currently

scheduled to be lifted and dissolved is not only a violation of the above-referenced

statutes and Article I, §9 of the Florida Constitution, but it is also a violation of the

Eighth and Fourteenth Amendments to the United States Constitution. An

execution that is carried out in violation of a State’s own statutory scheduling and

notice requirements is per se arbitrary and capricious and constitutionally

impermissible.

DATED this ____ day of June, 2000.

BILL SALMON

Florida Bar No.: 183833

SSN: 140-38-6041

Post Office Box 1095

Gainesville, FL 32601

(352) 378-6076

Attorney for Petitioner Demps