REPLY TO RESPONSE TO PETITION SEEKING TO INVOKE THIS COURT'S ALL WRITS JURISDICTION AND/OR PETITION FOR WRITOF HABEAS CORPUS

IN THE SUPREME COURT OF FLORIDA

WAYNE TOMPKINS, Petitioner,

v. CASE NO. SC08-2000

BILL McCOLLUM,

Attorney General of the

State of Florida,

and,

WALTER A. McNEIL,

Secretary,

Department of Corrections,

State of Florida,

Respondents.____________________________________/

REPLY TO RESPONSE TO PETITION SEEKING TO INVOKE THIS COURT'S ALL WRITS JURISDICTION AND/OR PETITION FOR WRITOF HABEAS CORPUS

The position taken by the State in its response is that "[i]n the instant case, this Court already has ultimate jurisdiction over the instant issues." Response at 2. Accordingly, the State moves that the "petition be dismissed for lack of jurisdiction or otherwise rejected" (Id.). The State’s position only makes sense if it had agreed that the claims contained in the Petition had been properly raised in Mr. Tompkins’ Rule 3.851 motions. However, it was not Mr. Tompkins’ understanding from the State’s briefs in Case Nos. SC08-992 and SC08-1979 that the State had agreed that all of the claims were in fact cognizable in a Rule 3.851 motion.

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Specifically in Case No. SC08-1979, it was Mr. Tompkins’ understanding that the State was arguing that the claim that the October 2, 2008, action by Governor Crist to reschedule Mr. Tompkins’ execution was not authorized under §922.06, Fla. Stat., was not cognizable in a Rule 3.851 motion. Specifically in the State’s Answer Brief filed in that case, it asserted: "First, this claim has nothing to do with Tompkins’ underlying judgment of conviction and sentence; therefore, it is not cognizable in a Rule 3.850/3.851 motion to vacate." (Answer Brief in Case No. SC08-1979, at 17).

The language used in the Answer Brief seems to pretty clearly argue that the Claim 1 of the Petition cannot be presented in a Rule 3.851 motion. The State’s position there does not seem to be in accord with its position in its Response to the All Writs Petition. Mr. Tompkins, in his Reply Brief, has acknowledged that he is not completely certain as to where the claim should properly be raised. He set forth his reasons for believing that the claim was cognizable in a Rule 3.851 motion. This Court has found other claims that do not go to the validity of the judgment and sentence to be cognizable in such motions. However, to the extent that this Court is not persuaded by the Reply Brief citation of authority on this point and accepts the State’s argument that the claim is not cognizable in a Rule 3.851 motion, then he believes that he must

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be permitted to present the claim in his All Writs Petition. If

the governor exceeded his statutory authority on October 2,

2008, when he set Mr. Tompkins’ execution, he must have means

challenging the governor’s action as authorized. He bases this

argument upon this Court’s decision in Getzen v. Sumter County,

89 Fla. 45, 50-51 (1925)(emphasis added), wherein this Court

stated:

The Constitution vests "the judicial power of theState" in the courts and mandatorily requires thecourts to afford a "remedy, by due course of law," to"every person for any injury done him," therefore, itis the duty of the courts, by due course of law, togive a remedy "for any injury done" to any one in"protecting property" or in "obtaining safety," fromany unlawful or oppressive action by any governmentaldepartment, tribunal or officer in performing anyfunction under a form or a claim of lawful authority.

***

An abuse or an arbitrary or unreasonable exercise of a

power conferred by law, is not within the intendments

of the law, organic or statutory; and the Constitution

requires the courts to give a "remedy" "for any injury

done" to personal and property rights, which includes

an injury caused by an arbitrary or an unreasonable

exercise of authority conferred, as a well as by

action taken without any authority whatever.

Thus, it is in fact proper for the judiciary to determine

whether the governor has exceeded the authority given to him by

the legislature to schedule Mr. Tompkins’ execution, and a means

of challenging that action must be permitted by this Court.

Accordingly, in light of the State’s argument in its Answer

Brief in Case No. SC08-1979, Claim 1 of the Petition should not

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be dismissed unless this Court first concludes that the State is wrong and the claim is cognizable in a Rule 3.851 motion.

Similarly, as to Claim 3 of the Petition, the State has asserted in the Answer Brief in Case No. SC08-1979 that the equivalent claim in the Rule 3.851 motion was not cognizable in such a motion. Specifically on page 41 of that Answer Brief, the State asserted that "this claim is not cognizable" (Answer Brief at 41). Accordingly as with Claim 1, in light of the State’s argument in its Answer Brief in Case No. SC08-1979, Claim 3 of the Petition should not be dismissed unless this Court first concludes that the State is wrong and the claim is cognizable in a Rule 3.851 motion.

As to Claim 4 of the Petition, it is unclear to Mr. Tompkins whether the State is arguing in its Answer Brief in Case No. SC08-1979, that the equivalent claim contained in the Rule 3.851 motion is cognizable in such motion. Mr. Tompkins cannot find a place where the State used the word "cognizable" in its argument in the Answer Brief, but it seems implicit in the argument that the State is asserting that the claim cannot be raised in a Rule 3.851 motion. To the extent that this is the State’s argument, or this Court finds that to be the State’s argument, Claim 4 of the Petition should not be dismissed unless this Court first concludes that the claim may be raised in a Rule 3.851 motion.

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As to Claims 2 and Claim 5 of the Petition, Mr. Tompkins’ reading of the State’s positions in the answer briefs in Case Nos. SC08-992 and SC08-1979, is that these two claims are properly raised in a Rule 3.851 motion and should be denied on the merits. Such an argument is an acknowledgment that the claim at issue is cognizable in a Rule 3.851 motion, and thus need not be presented in All Writs/Habeas Corpus Petition in order to get the merits of the claim before this Court.

CONCLUSION

For the reasons stated herein, Mr. Tompkins requests that this Court consider the merits of Claim 1, Claim 3, and Claim 4, and grant the relief specifically requested in each claim.

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing motion

has been furnished by U.S. Mail, postage prepaid, to Scott

Browne, Assistant Attorney General, Department of Legal Affairs,

3507 Frontage Road, Suite 200, Tampa, FL 33607 on October 30,

2008.

/s Martin J. McClain______________ MARTIN J. McCLAIN Florida Bar No. 0754773 Special Assistant CCRC-South141 N.E. 30th Street Wilton Manors, FL 33334

(305) 984-8344

NEAL DUPREE CCRC-South 101 N.E. Third Avenue Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Tompkins

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