Saturday, 22 November 2008

STATEMENT OF THE CASE AND FACTS - Wayne Tompkins - wrongful conviction


Factual Background
On March 23, 1983, Lisa DeCarr and Kathy Stevens were
expelled from school after they were discovered outside smoking
under a tree. Lisa and Kathy were in special classes for
emotionally troubled students. Pot was found in Kathy’s purse.
Lisa was told that she could not return to school until she was
accompanied by a parent.
On the afternoon of the next day, March 24, 1983, Lisa’s
mother contacted the police and filed a missing persons report.
That police report is a two-page report dated March 24, 1983, at
5:30 PM.1 The first page lists the complainant, the date, and the
time of the incident being reported. The “Date Time Occurred”
showed “24 Mar 83 1330-1400.” The report listed Barbara DeCarr as
the complainant/parent. On the first page of the report in the
reconstruction section was handwritten, “Mrs. DeCarr stated her
daughter ran away from home for no apparent reason.” The second
page of the report listed Wendy Chancey as a witness. The report
then contained the following in the narrative section:
Compl. stated she last saw Lisa at the listed residence
at the listed time. Compl. stated that everything was
fine at home and has had no trouble with Lisa running
away or anything. Compl. stated that Lisa was having
some trouble in school but nothing to cause her to
It is clear from the police report that Mrs. DeCarr
reported Lisa missing within a couple of hours after she was last
seen getting into a car. It is also clear from the police report
that Mrs. DeCarr was aware of “some trouble in school.”

runaway. Compl. checked was Lisa’s friends and school
for information as to where she might be with negative
results. Compl. stated that one of Lisa’s friends told
her that Lisa asked about Beach Place, but Compl.
checked with Beach Place with negative results. Compl.
stated Lisa did not take any of her belongings and gave
no indication of wanting to leave.
Since Mrs. DeCarr was making representations to the police
while filing a missing persons report, presumably she subjected
herself to prosecution if the police report was false. Kist v.
State, 787 So. 2d 106 (Fla. 2nd DCA 2001).
School records reveal that there was a March 24th phone
conference with Barbara DeCarr “who called to inform that Lisa
had left.” This was the day after Lisa had been expelled and told
that she could not return unless accompanied by a parent. The
records also show that on March 25th, “mom says child ran away
The report showed the “listed time” as 1:30-2:00 on March 24,
1983. The “listed residence” was shown as 1225 E. Osborne St.
According to the report, Mrs. DeCarr last saw her daughter, Lisa,
at 1:30-2:00 PM on March 24, 1983.2 The report further indicated
that a witness, Wendy Chancey, stated “she observed Lisa get into
the suspect vehicle at 12th St. and Osborne and was last seen
heading north on 12th St.” The two-page police report indicated
that Lisa was wearing “blue jeans, maroon shirt, diamond ring,
cross earrings.” Implicit in the report was the fact that this
was the attire Lisa was wearing at the time she was last seen by
the complainant, Barbara DeCarr, when she last saw Lisa at 1:30-
2:00 PM.
For over a year after this police report was dated, Mrs.
DeCarr maintained that Lisa had run away. This was documented by
numerous police reports.3 Det. Gullo logged calls from Mrs.

yesterday (24th). Thinks child may be pregnant.” Similarly,
records from the Missing Child organization indicated that
Barbara contacted the organization on March 29, 1983, and
reported Lisa as missing, saying, “She may be on drugs and she
may be pregnant.” Barbara DeCarr did not mention to Det. Gullo,
the policeman looking for Lisa, Lisa’s possible pregnancy until
April 26th.
DeCarr reporting that others claimed to have seen Lisa. However,
she did not give a name for any of the individuals she said had
told her they had seen Lisa after her disappearance. For example,
the September 2, 1983, entry stated:
I received a phone call from Mrs. DeCarr who stated
that she was told by friends of Lisa that they had seen
Lisa on East 7th Ave. at about 46th St. Lisa was
standing in the Jewel “T” parking lot speaking with two
or three other w/f’s. The informants told Mrs. DeCarr
that Lisa might be living in a trailer park which is
across the street. Mrs. DeCarr told the informants that
they should call the police the next time they see her.
Mrs. DeCarr was advised that they didn’t want to get
involved with the police.
The only name Mrs. DeCarr supplied Det. Gullo was when she
indicated Kathy Stevens had reported that Lisa had called from
New York. Yet when providing that information, Mrs. DeCarr
misreported Kathy’s last name. She said Kathy’s last name was
Sample. As a result, Det. Gullo did not locate Kathy.
When she testified at trial, Mrs. DeCarr denied practicing
witchcraft: “I am a Catholic.” (Id.) In her deposition, Barbara
said her daughter would be lying if she had said that Barbara had
engaged in sex acts with “little boys” (DeCarr depo. at 65). At
trial, Judge Coe refused to allow Mrs. DeCarr to be asked about

Detective Burke’s report dated June 22, 1984, noted that
“Jenice DeCarr who is, the stepdaughter of Barbara DeCarr”
stated, “that Barbara DeCarr was heavily into Witchcraft and
while living in New York, Barbara participated in witchcraft to a
great extent.” Jenice also reported “that her brother Harold
DeCarr, Jr. was seduced by Barbara when he was 12 yrs. old.” Det.
Burke noted that “this was confirmed by Harold as we were on a
three party telephone conversation at the time. He stated that he
was in fact, 12 yrs old when this took place.”
Det. Burke reported that Michelle Hayes, “the sister to Lisa
DeCarr and the daughter of Mrs. DeCarr,” made similar statements.
Michelle “stated she knew of one time that her mother had at
least three or four young boys in her bedroom locked up with her
ranging from ages 12 to 14 yrs and that she knew that there was
sex acts going on and that one of the subjs that was in the
bedroom with her mother was Harold, Jr., her stepbrother. She
stated that she is certain that they were involved in some type
of sex act with their mother. She said it got so bad, that the 12
and 14 yrs old boys would get in a fight over who was to have her
mother’s affections.”
In the period between March, 1982, to June, 1984, Mrs.
DeCarr had three other boyfriends in addition to Wayne Tompkins
(R. 227). As to one, Gary Francis, she denied that she moved out
of the trailer park because Gary had harmed Lisa (Id.). But Mrs.
DeCarr did acknowledge that a man named Bob McElvin had
propositioned Lisa, saying he would do “certain things for her
for sexual favors” (Id.).
Mrs. DeCarr found out in 1984 that Mr. Tompkins had gone to
bed with another woman. However, in her testimony, she denied
that she was angry over Mr. Tompkins’ affair with another woman
(R. 237).
her sexual relationships with 12 and 13 year old boys (R. 235).4
In May of 1984, while she was voluntarily committed in a
mental hospital, Mrs. DeCarr contacted a psychic.5 Donald Snell
testified at trial that he met Mrs. DeCarr in May, 1984 (R. 123-
24). Snell headed a volunteer group that located missing
children, and employed the services of a psychic to do so (R.
124). A second meeting occurred in early June of 1984, when Mrs.
DeCarr assigned him power of attorney to search for Lisa (R.

Mrs. DeCarr and her family moved from that residence over a
year before, weeks after Lisa disappeared.
Tampa Police Department Sergeant Rademaker testified that
Mrs. DeCarr told him that she believed the body “was someplace on
the property and possibly under the house” (R. 170); even though
this interview was conducted after the discovery of the body, “we
didn’t tell her during the interview. We didn’t tell her until
after we were sure what we had” (Id.)
The medical examiner identified the body as being Lisa based
upon information received from Barbara DeCarr. The trial
prosecutor testified in 1989 that “[o]ther than Mrs. DeCarr’s
description of the strange tooth in her daughter’s mouth” there
was no basis for the dental identification (PC-R. 233). There was
no way to determine how long the body had been in the grave, and
that it is possible it could have been as little as six or seven
months prior to June, 1984 (R. 191).
When someone reached under the house, “the
earth gave way” and “saw the bones” (R. 132). The depression was
“on the right hand side under the front part, the front section,
what was the porch” and was about “two to three feet under the
house” (R. 133, 135). The police were then contacted (R. 135).
Snell said that it was not difficult to go under the house to see
where the depression was located, and that there were houses on
both sides of the DeCarr residence, and people from those houses
could see what they were doing (R. 138-39). Snell did not know if
Barbara knew where the body was before he went there, but “just
didn't believe that she was telling me the whole truth” (R. 138;
129). On or around June 6, 1984, Snell’s organization conducted a
search of Barbara’s former house (R. 130-31).6 Snell recounted
that “the house was raised in the front part” and when they
looked under it, “we could see a depression which we were sure
was a grave.” Id.

Benito first called Kathy Stevens on March 7, 1985. This
was two days after Barbara DeCarr’s March 5th deposition in which
she indicated she went to Mr. Tompkins’ mother’s house at
“approximately 9:00 am.” (DeCarr depo. at 16). In her undated
statement, she further indicated that Mr. Tompkins had already
arrived at his mother’s house and “stayed at his mother’s house
until approximately 10:00 am when he left to get some newspapers
to pack dishes with.” In her deposition, she indicated Mr.
Tompkins “could have been” gone “[t]wenty minutes, half an hour.”
(DeCarr depo. at 20). He subsequently left again with his
stepfather (DeCarr depo. at 21).
Kathy’s new version of the facts included her sneaking into
Lisa’s bedroom window at 6:30 AM on March 24th because she and
Lisa were planning to run away after getting in trouble at
school. In the early morning meeting, Kathy said that Lisa
After the body was found, Mrs. DeCarr told the police that
Wayne Tompkins, her ex-boyfriend, was the last person to see Lisa
alive on the morning of March 24, 1983, the day she disappeared.
Based upon Mrs. DeCarr’s claims and the discovery of the body,
Mr. Tompkins was indicted. In early 1985, Mrs. DeCarr was deposed
by Mr. Tompkins’ counsel. Immediately afterwards, the prosecutor,
Mike Benito, started looking for more evidence or another
witness. He contacted Kathy Stevens in March of 1985.8 At first
she maintained that her statements to school officials were true,
that Lisa had runaway to New York and kept in touch with Kathy.
Kathy said that after laying awake and talking to her pillow, she
called the prosecutor. After she was given authorization to visit
a boyfriend who was incarcerated, she changed her story and
claimed that she witnessed Lisa being strangled by Mr. Tompkins
on the morning of March 24, 1983, at around 8:30 AM.9

announced she was not running away after all. So Kathy left.
Later, she realized that she left her purse and had to go back to
get it. When she got there at around 8:30 AM, the front door was
open. She went in and saw Mr. Tompkins strangling Lisa. Lisa
called out for her to call the police. But instead, she went to
the nearby store and ran into Lisa’s boyfriend, Junior Davis.
When she told him what she had just witnessed, he seemed
unconcerned. So, Kathy put the incident behind her and went to
school. In her trial testimony, Kathy said that she went back
later to get her purse with her girlfriend, Kim Lisenby. It was
then Kim who knocked at the door, not Kathy, and may have spoken
with Mr. Tompkins. Kathy indicated that this conversation was
between Kim and Tompkins while she “was at the corner waiting.”
She stated, “I did not hear it” (Stevens depo. at 14).
In her deposition, Kathy gave a different version. There,
she said that Kim Lisenby was with her when she saw Lisa being
strangled. After Lisa told her to call the police, she “grabbed
[her] purse and [ ] left.” (Stevens depo. at 10) “I shut the
door. And I told Kim, I said, ‘Come on, Kim we got to call the
police.’ She said, ‘Don’t get involved.’ And I said, ‘Why?’ And
she said, ‘Because you don’t need to.’ And I said, ‘Okay.’ And I
went to the store and that’s when I ran into Junior.” Id.
In her deposition, Kathy indicated that she “grabbed her
purse” when she left at 8:00 am. (Stevens depo at 10). She also
indicated that after she talked to Junior, “me and [Kim] went
back to the school. I cleaned out my locker, and I went to my
stepmother’s and sat on her porch until she got back. And then I
met Kim at school at 2:00 o’clock. And she cut class. And we went
to go check on Lisa” (Stevens depo. at 14). “It takes about
twenty minutes to get from the school to her house. It was about
2:20, 2:30, something like that.” Id.
Kathy Stevens’ deposition occurred on June 12, 1985.
Kenneth Turco’s deposition occurred on July 15, 1985. At that
time, he said that in late June, 1985, he first talked to Wayne
Tompkins about his case, and that about a week and a half before
the deposition, Mr. Tompkins confessed to him (Turco depo. at 8).
Thereafter, the prosecutor located a jail house informant,
Kenneth Turco, who claimed that Mr. Tompkins had confessed to the
murder.10 Mr. Turco’s testimony so matched Kathy Stevens’ story
that defense counsel argued that the informant had obtained
access to Ms. Stevens’ deposition or statement and used it to
Kenneth Turco was serving a 30-year prison sentence for
burglary and grand theft (R. 301-02). Turco also had been
previously convicted of grand theft, forgery, and burglary (R.
302). Turco acknowledged that there was a confidential informant
system in prison and he had been part of that for the last 4 or 5
years, and that he was “trustworthy” (R. 317). When he was in
jail with Mr. Tompkins, he had just entered a guilty plea on an
escape charge (R. 303). He was waiting to be sentenced (R. 304).
While in the jail, he made contact with Wayne Tompkins after he
“was placed in the cell with him” (R. 305). After his contact
with Mr. Tompkins, Turco contacted prosecutor Benito, who visited
him personally, and promised only “my safety in the jail and that
[he] would tell the judge at my sentencing hearing that I
cooperated and I came forward and testified in a murder trial”
(R. 311).
Turco testified that he was not hopeful that his testimony
would help him on the escape sentence because he would still be
doing time anyway (R. 315). However, it had crossed his mind that
his testimony would help him (Id.).
In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney,
testified that he took over Turco’s prosecution two weeks after
Wayne Tompkins’ sentence of death. He explained, “I walked down
to court. I was about to offer Mr. Turco a negotiation. I got in
here and I looked at Mr. Turco and I said, ‘This guy showed a lot
of guts coming forward as a jailhouse informant to testify as to
what Mr. Tompkins told him.’” (PC-R. 235). So, Benito “got up and
walked down here and announced the case, and said, ‘I nol-pros
it.’” A grateful Turco “looked at [Benito] like he had just been
handed his first bicycle at Christmas.” (PC-R. 236).
mold his testimony.11
Following Kathy Stevens report that she witnessed Mr.
Tompkins’ strangling Lisa at around 8:30 AM, Mrs. DeCarr was able
to remember that contrary to her earlier statements that she had
left the house before 8:30 AM, and at that time Mr. Tompkins was
still there, as was Lisa. This statement contradicted Mr.
DeCarr’s prior statements to police. Previously, her recollection
was that Mr. Tompkins left to take one of her sons to school and
Mrs. DeCarr’s shifting the time line of her account was
necessary because her previous story made Kathy’s story
impossible (between 8:00 AM and 9:00 AM, Barbara had said she was
home and Mr. Tompkins wasn’t and that he did not return to the
house until after 10:00 AM, while Kathy said before going to
school at 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa
on the couch).
Although it presented eight witnesses at trial, the State
advised the jury that “the key testimony will come from three []
witnesses”--Barbara DeCarr (the victim's mother), Kathy Stevens
(the victim’s best friend), and Kenneth Turco (the jailhouse
snitch)--and that “[t]hose three will provide the overwhelming
evidence” that Mr. Tompkins killed Lisa DeCarr on the morning of
March 24, 1983 (R. 108).
The jury did not learn of the information provided Mrs.
DeCarr and Wendy Chancey to a police officer regarding their
observations of Lisa on the afternoon of March 24, 1983, which
was inconsistent with the testimony of Kathy Stevens, Barbara
DeCarr, and Kenneth Turco.
According to an
undated typed statement of Mrs. DeCarr that was provided to the
police before Kathy Stevens claimed to have witnessed Mr.
Tompkins strangling Lisa. In that statement, Mrs. DeCarr said,
“Wayne had taken Jamie (my youngest son) to school just before
8:00 a.m. and then went to his mother’s house for breakfast and
coffee. He stayed at his mother’s house until approximately 10:00
a.m. when he left to get some newspapers to pack dishes with.”
wasn’t home when she left after 9:00 AM.12
At trial,13 Wendy Chancey was unavailable and defense
counsel was precluded from cross-examining Mrs. DeCarr regarding
the statements attributed to her in the March 24, 1983, police
report.14 The State’s theory of the case was outlined in its
opening statement. According to the State, Wayne Tompkins and
At the 1989 hearing, the trial prosecutor, Mike Benito,
confirmed that his theory was that the offense occurred at about
9:30 or 10:00 a.m. on that date (PC-R. 87).
Mrs. DeCarr were boyfriend and girlfriend in March of 1983. Mr.
Tompkins was living with DeCarr, along with her three children,
including 15-year old Lisa (R. 107-08). On the morning of March
24, 1983, Barbara went to Mr. Tompkins’ mother’s house to help
her move; before she left the house between 8:30 and 9:00 AM, she
checked in on Lisa, who was in bed and was wearing a pink
bathrobe (R. 110). After Barbara left, Kathy arrived somewhere
between 8:30 and 9:00 AM and saw Mr. Tompkins strangling Lisa.15
During Mr. Tompkins’ trial, the prosecutor relied upon
Stevens’ testimony to urge the jury to convict Mr. Tompkins,
arguing, “[h]er testimony alone . . . convicts this man” (R. 346;
see also R. 346-49, 360). The prosecutor relied upon Stevens’
testimony to urge the jury to recommend a death sentence (R. 444-
45). Thereafter, the jury convicted and recommended a sentence of
death. The trial judge relied upon Stevens’ testimony to support
the “committed during a felony” aggravating circumstance (R.
In the course of the collateral proceedings, withheld
exculpatory evidence has surfaced, along with witnesses and
documents that were not presented by the defense which
demonstrate that Kathy’s story - the basis of the prosecution’s
theory of the case - could have been thoroughly impeached and

shown to not be true. For example, in 2001, the State disclosed a
June 8, 1984, police report concerning an interview of an
individual named Maureen Sweeney taken on June 8, 1984, at 2130
SWEENEY advised that it was very strange the
explanation given surrounding LISA'S disappearance. She
advised that she was told that LISA had come home,
found Wayne sitting at the kitchen table with her
mother and asked 'what the hell is he doing here!' Her
mother, BARBARA, explained that he had no place to go
and that she was going to let him move in with them,
until he could get on his feet. At that point LISA ran
out the back door. According to MAUREEN it was very
unusual for LISA to be outside without her makeup and
supposedly she had been outside then come back inside
and then gone out again without her makeup. Lisa's
brother BILLY left the house to go find her and came
back to take care of JAMIE.
The sequence of events that Sweeney reported is consistent with
what Mrs. DeCarr had told the police on March 24, 1983, and is
inconsistent with the State’s theory of the case, that murder
occurred between 8:00 and 9:00 AM on March 24th.
It was only during the post-conviction proceedings that Mr.
Tompkins or his counsel learned that the prosecutor had written
file memos memorializing Kathy’s statements to him when he first
contacted her and memos from when she changed her story. It was
only after receiving this memos that Mr. Tompkins learned that
Kathy Stevens, a mentally troubled teen, was given access to her
incarcerated boyfriend who she had not been allowed to see until
after she changed her story and incriminated Mr. Tompkins.
Similarly, Kathy Stevens’ testimony was contradicted by
“Junior” Davis, Lisa DeCarr’s boyfriend at the time of her

disappearance, when he was located in 2002. After years of
searching and after the State finally provided previously
undisclosed documents about Davis in 2001, Mr. Tompkins’ counsel
located “Junior” Davis in April of 2002. “Junior” Davis’s full
name is James M. Davis, Jr. Upon being contacted, Mr. Davis
reported that he had been Lisa DeCarr’s boyfriend in March of
1983. In a sworn affidavit, Mr. Davis stated, “[t]he story of
Kathy running into me at the store the day Lisa disappeared is
not true. If anyone had told me that Wayne was attacking Lisa and
she was screaming for someone to call the police, I would have
gone directly there” (Affidavit of James M. Davis, Jr., paragraph
6, 4PC-R. 130). Mr. Davis elaborated:
If I thought there was anyway I could have helped
[Lisa], I would have, especially if she were in
trouble. This is why what Kathy said is not true. I
never saw Kathy on the morning that Lisa disappeared,
nor did Kathy ever tell me that she had just seen Lisa
being attacked by Wayne. In fact, the first time I
heard of anything having possibly happened to Lisa was
when I heard on the radio she was missing.
(Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130).
In addition, on October 10, 2008, Mr. Tompkins obtained an
affidavit from Kimberly Quillin, formerly known as Kim Lisenby.
In this affidavit, Ms. Quillin provided additional impeachment
evidence which the jury never heard:

Sworn Affidavit of Kimberly Quillin
State of Florida ) ss
County of Hillsborough )
Before me this day personally appeared Kimberly Quillin
who being duly sworn, hereby deposes and says:
1. My name is Kimberly Quillin and I reside in Tampa,
2. In 1983 I went by the name of Kim Lisenby and
attended Middleton Junior High.
3. In March 1983 I do not remember anyone by the name
of Kathy Stevens aka Mamroe aka Sample.
4. In March 1983 I do not remember anyone by the name
of Lisa DeCarr.
5. I remember that while attending Middleton Junior
High, a rumor that a body was found under a house.
6. In 1983 school started at 8:00 AM and I would have
been on the bus from 7:15 AM to about 7:40 AM.
7. I do not remember any police officer,
investigator, or anyone else speaking to me about this
8. In 1989, I was married and using the name Kimberly
Kuhnie and moved to Washington.
Signature of Affiant
Throughout the history of this case, Mr. Tompkins has
maintained that he did not commit the murder for which he stands
convicted. He has always maintained his innocence.
Procedural History

Mr. Tompkins was indicted for first-degree murder and pled
not guilty. Trial commenced September 16, 1985, and a jury found
him guilty (R. 401). Following a penalty phase, the jury
recommended the death penalty, and the judge immediately imposed
a sentence of death (R. 678-81). The conviction and sentence were
affirmed. Tompkins v. State, 502 So. 2d 415 (Fla. 1987), cert.
denied, 483 U.S. 1033 (1987). After a death warrant was signed, a

The circuit court also found, as a matter of fact, that
Mr. Tompkins had exercised due diligence. The delay in presenting
the issue was attributable to the State’s failure to disclose
that the ex parte contact had occurred until in March of 2001.
motion to vacate was filed and an evidentiary hearing was
conducted. Though the circuit court found trial counsel’s
performance was deficient, relief was denied. This Court stayed
the execution and later affirmed the denial of relief. Tompkins
v. Dugger, 549 So. 2d 1370 (Fla. 1989). After a second death
warrant a federal habeas petition was filed, and the federal
district court stayed the execution. An amended petition was
subsequently filed, and denied. On appeal, the Eleventh Circuit
affirmed. Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999),
cert. denied, 121 S. Ct. 149 (2000).
In March of 2001, a second death warrant was signed for Mr.
Tompkins’ execution. Thereafter, Mr. Tompkins filed a second
motion to vacate in which he challenged his conviction and
sentence of death. The circuit court summarily denied guilt phase
relief, but granted an evidentiary hearing on Mr. Tompkins’
challenge to his death sentence. At the conclusion of the
hearing, the circuit court vacated Mr. Tompkins’ sentence of
death and granted a resentencing. The circuit court found, as a
matter of fact that the judge had engaged in ex parte contact
with the prosecutor as to the preparation and the content of his
sentencing order imposing a sentence of death.16
Both parties appealed. This Court reversed the circuit
court’s order granting a resentencing and affirmed the denial of
guilt phase relief. Tompkins v. State, 872 So. 2d 230 (Fla.
2003). As to the ex parte contact between the sentencing judge
and the prosecuting attorney, this Court said that Mr. Tompkins
had failed to demonstrate that the ex parte contact rendered the
judge something other than neutral and detached. In its October
9, 2003, opinion, as revised on April 22, 2004, this Court
stated: “Based on the foregoing, we affirm the trial court’s
summary denials of Tompkins’ Brady claims and affirm the trial
court’s denial of Tompkins motion for DNA testing and motion to
compel the production of public records. However, we reverse the
trial court’s order granting a new penalty phase trial and
reinstate the death sentence. The stay of execution is dissolved
effective 30 days after this decision becomes final.”
While that appeal was pending, Mr. Tompkins filed another
Rule 3.850 motion with the circuit court based upon Junior Davis’
affidavit. The circuit court dismissed the motion finding that it
lacked jurisdiction during the pendency of the previous appeal.
Mr. Tompkins appealed. This Court affirmed, but granted Mr.
Tompkins “60 days to refile his successive postconviction motion
nunc pro tunc to February 5, 2003, the date the prior motion was
filed in the trial court.” Tompkins v. State, 894 So. 2d 857
(Fla. 2005). Thereafter, Mr. Tompkins refiled his 3.850 motion.
The circuit court denied the motion and Mr. Tompkins again
appealed. On May 10, 2007, this Court issued an opinion affirming
This Court held in Tompkins v. State, 894 So. 2d 857
(2005), that a circuit court lacked jurisdiction to consider a
Rule 3.851 motion while an appeal is pending in this Court as to
a previously filed Rule 3.851 motion. Accordingly, Mr. Tompkins
was not in a position to file the lethal injection Rule 3.851
motion until the mandate issued and returned jurisdiction to the
circuit court.
the denial of 3.850 relief. Tompkins v. State, 980 So. 2d 451
(Fla. 2007). Mr. Tompkins filed a motion for rehearing which was
denied on July 16, 2007. The mandate issued, returning
jurisdiction to the circuit court on August 2, 2007.
On August 16, 2007, Mr. Tompkins filed another Rule 3.851
motion in circuit court.17 Included within this motion was a
challenge to Florida’s method of execution in light of the Angel
Diaz execution. The circuit court summarily denied the motion on
March 18, 2008. Mr. Tompkins’ motion for rehearing was denied on
April 7, 2008. Mr. Tompkins filed a notice of appeal on May 7,
2008. A brief was filed in support of that appeal on October 23,
On October 2, 2008, the Governor re-scheduled Mr. Tompkins’
execution for October 28, 2008. On October 6, 2008, this Court
stayed the execution. On October 7, Mr. Tompkins served public
records requests under Rule 3.852 on the Department of
Corrections (DOC) and the Florida Department of Law Enforcement
(FDLE). These requests sought records about the recent executions
carried out by the State of Florida. On October 8, Mr. Tompkins
served public records requests under Rule 3.852 on the Governor’s
Office and upon the Office of the Attorney General. These
requests sought records of communications concerning Mr.
Tompkins’ death warrant that had been signed in March of 2001.
On October 10, the circuit court conducted a status hearing.
On October 10, FDLE provided Mr. Tompkins with its response
objecting to the public records request. On October 13, DOC
provided Mr. Tompkins with its response objecting to the public
records request. On October 14, the Governor’s Office turned
records over to Mr. Tompkins in compliance with his public
records request. On October 14, the Attorney General’s Office
turned records over to Mr. Tompkins in compliance with his public
records request. On the morning of October 15, Mr. Tompkins
served and filed a motion to vacate pursuant to Rule 3.851.
Thereafter, the Attorney General’s Office disclosed additional
public records. Later in the afternoon, the State served and
filed its response to the Rule 3.851 motion. At 4:30 PM, the
circuit court conducted a case management hearing. At the
conclusion of the hearing, the presiding judge indicated that he
would have his rulings out by the end of the week.
On October 16, this Court entered an order directing the
circuit court to advise the Court of the status of the circuit
court proceedings by 4:00 PM on Monday, October 20th. On October
16, the circuit court entered an order sustaining the objections
made by DOC and FDLE to Mr. Tompkins’ public records request.
On October 17, the circuit court served a status report
indicating that the parties had until the afternoon of October
20th to submit additional pleadings.
On October 20, Mr. Tompkins filed a supplement to his Rule
3.851 motion in which he addressed the public records provided to
him on October 15, after he had submitted the Rule 3.851 motion.
Later on October 20, the State filed a response to the
At approximately 4:30 PM on October 21, the circuit court
entered its order summarily denying Mr. Tompkins’ Rule 3.851
motion. On the morning of October 22, Mr. Tompkins submitted his
notice of appeal. This brief addresses the issues presented by
that appeal.

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