IN THE SUPREME COURT OF FLORIDA
MARK DEAN SCHWAB
Case No. SC08-1199
STATE OF FLORIDA,
MOTION TO STRIKE EXHIBIT
COMES NOW the State of Florida, and moves this Court to strike "Exhibit A" to Schwab’s Initial Brief. As grounds for granting this motion, the State submits the following:
1. "Exhibit A" purports to be the lethal injection procedures utilized in the State of Kentucky. This exhibit was not attached to Schwab’s third successive post-conviction relief motion, and was never a part of the circuit court proceedings.
2. It is inappropriate to attempt to present "evidence" for the first time on appeal. That is what Schwab is attempting to do, and that practice is improper.1
3. "Exhibit A" should be stricken because it was not a part of the proceedings below. Likewise, all references to that exhibit should be stricken from Schwab’s brief.
1 The State notes that Schwab attempted to add "evidence" under the guise of a notice of supplemental authority in Case number SC07-2138. That filing was stricken on May 21, 2008.
KENNETH S. NUNNELLEY
SENIOR ASSISTANT ATTORNEY GENERAL
Florida Bar #0998818
444 Seabreeze Blvd. 5th FL
Daytona Beach, FL 32118
Fax # (386) 226-0457
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above has been furnished by E-Mail and U.S. Mail to: Mark Gruber, Peter Cannon, Assistant CCRC-Middle, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619 (813)740-3554, Judge Charles M. Holcomb, Circuit Court Judge, 506 S. Palm Ave., Titusville, Florida 32796-3592 (321)264-6904, Robert Wayne Holmes, Assistant State Attorney, 2725 Judge Fran Jamieson Way, Building D, Viera, Florida 32940 (321)617-7546, on this day of June, 2008.