Monday, 9 February 2009




v. CASE NO. SC09-___

Attorney General of the
State of Florida,


Department of Corrections,
State of Florida,




Article V, Section 3(b)(1) and (7) of the Florida
Constitution gives this Court exclusive appellate jurisdiction
over all capital cases and the ability to issue “all writs
necessary to the complete exercise of its jurisdiction.” This
Court's “all writs” jurisdiction may be invoked in capital cases
when warranted by circumstances. Lightbourne v. McCollum, 969
So. 2d 326 (Fla. 2007); Jones v. Butterworth, 701 So. 2d 76 (Fla.
1997); Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994). The
circumstances presented herein warrant invocation of the “all

writs” jurisdiction.

Mr. Tompkins is an indigent death-sentenced defendant.
Tompkins v. State, 502 So. 2d 415 (Fla.), cert. denied, 483 U.S.
1033 (1987). In March of 2001, Governor Bush signed Mr.
Tompkins’ death warrant. In April of 2001, Mr. Tompkins filed a
Rule 3.851 motion in circuit court. After granting an
evidentiary hearing, the circuit court issued a stay of
execution. Thereafter, the circuit court finding error vacated
Mr. Tompkins’ sentence of death and ordered a resentencing. The
circuit court denied those claims on which Mr. Tompkins sought a
new trial. Both parties appealed to this Court. In 2003, this
Court reversed the circuit court’s order vacating Mr. Tompkins
sentence of death and affirmed the portion of the order denying
Mr. Tompkins a new trial. Tompkins v. State, 872 So. 2d 230
(Fla. 2003).

On October 2, 2008, Governor Crist rescheduled Mr. Tompkins’
execution for October 28, 2008. On October 6, 2008, this Court
issued a stay of execution in a pending appeal that Mr. Tompkins
had before the Court; the stay ultimately expired on November 13,
2008. On October 15, 2008, Mr. Tompkins filed a Rule 3.851
motion in the circuit court. The circuit court summarily denied
the motion on October 21, 2008. Mr. Tompkins appealed to this
Court. On November 7, 2008, this Court affirmed the circuit
court’s denial of the Rule 3.851 motion. Tompkins v. State, –

So. 2d – (Fla. November 7, 2008).

On December 1, 2008, Mr. Tompkins filed a motion for DNA
testing in this Court. On December 15, 2008, after Mr. Tompkins
had filed this motion for DNA testing, Governor Crist ordered the
evidence in the State’s possession that Mr. Tompkins wished to
have tested, to be collected and sent off to FDLE so that DNA
testing could be conducted. On January 28, 2009, the State
served an additional notice of discovery which included reports
from the FBI and FDLE explaining that the DNA testing produced
inconclusive results. In explaining these results, the reports
revealed that there was considerably more biological material
bearing DNA than was previously known - this included hair that
had been found on clothing that was in the grave with the body
(in 2001 the State presented testimony that the hair found in the
grave was missing or destroyed).1 However, the techniques and
procedures used by the FBI and FDLE were unable to unlock the DNA
sequence and learn what information could be gleaned from the DNA

1The discovery revealed that the clothing had testedpositive for the presence of blood, a fact that was previouslyunknown. As Mr. Tompkins has explained in his amended motion forDNA testing that was filed in the circuit court, there are moresensitive and more sophisticated tests and procedures (albeitmore expensive) than the government funded testing done by theFBI and FDLE which have repeatedly been unable to unlock the DNAsequence that when government funded testing was used producedinconclusive results.

sequences that were present in the biological material.2

On February 2, 2009, Governor Crist rescheduled Mr.
Tompkins’ execution for February 11, 2009. On February 5, 2009,
Mr. Tompkins submitted an amended motion for DNA testing in
circuit court in light of the additional discovery provided by
the State. Also on February 5, 2009, Mr. Tompkins submitted a
Rule 3.851 motion to the circuit court.

Thus, there are two collateral actions currently pending in
the circuit court. Mr. Tompkins will certainly appeal any
adverse ruling in those actions. At this point in time, the
circuit court has not conducted a case management hearing, nor
indicated in any fashion when a ruling will be forthcoming.

This Court has consistently maintained an especially
vigilant control over capital cases, exercising a special scope
of review. Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977);
Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985). This
Court has not hesitated in exercising its inherent jurisdiction
to review issues arising in the course of capital post-conviction

2The result of the DNA testing conducted by the FBI and FDLEwhich produced inconclusive results were disclosed on January

28 , less than 14 days ago. Normally in a criminal case when
DNA testing is conducted and the results are disclosed to the
defendant, he is granted time to process the information, consult
with experts, and obtain second opinions. Ake v. Oklahoma, 105

S. Ct. 1087 (1985). Given that, it is not unreasonable for Mr.
Tompkins or the circuit court or this Court to need to digest the
information and be prepared with the assistance of knowledgeable
experts to address the meaning of the DNA results and what
additional testing is warranted.

proceedings. State v. Lewis, 656 So. 2d 1248 (Fla. 1995). Here,
this Court’s appellate jurisdiction is threatened by the short
period of time between February 2nd when the Governor et the

execution and February 11th when the execution is now scheduled.3

As this is being submitted, only a little over 48 hours remain
before the execution is scheduled to take place.

This Court has the inherent power to exercise its
jurisdiction. The reasons set forth herein demonstrate that the
Court's exercise of its “all writs” jurisdiction to issue a stay
of execution in order to insure that Mr. Tompkins claim will be
judiciously considered and that he will have the opportunity to
appeal any adverse rulings issued by the circuit court.

In its jurisdiction to issue all writs, including writs of
habeas corpus, this Court has an obligation to protect
Petitioner's right under the Florida Constitution to be free from
cruel or unusual punishment and it has the power to enter orders
assuring that such protection is forthcoming. Allen v. State,
636 So. 2d 494, 497 (Fla. 1994)(holding that the Court was

3It has been a long time since a Florida governor scheduleda execution on such short notice as has been done here. Short
warrant periods generally ended when this Court adopted the oldRule 3.851 in the mid-1980's that provided filing time tableswhen the governor scheduled an execution more than sixty dayshence. Those filing time tables were abolished in 1993. At that
time, this Court explained in its Commentary to the Rule: “Theprovisions of the present rule 3.851 providing for time periodswhere a 60-day warrant is signed by the governor are abolishedbecause they are unnecessary if the guidelines are followed.”
Rule 3.851, Commentary re: 1993 Adoption.

required under Article I, § 17 of the Florida Constitution to
strike down the death penalty for persons under sixteen at time
of crime); Shue v. State, 397 So. 2d 910 (Fla. 1981)(holding that
this Court was required under Article I, § 17 of the Florida
Constitution to invalidate the death penalty for rape); Makemson

v. Martin County, 491 So. 2d 1109 (1986)(noting that “[t]he
courts have authority to do things that are essential to the
performance of their judicial functions. The unconstitutionality
of a statute may not be overlooked or excused”). This Court has
explained: “It is axiomatic that the courts must be independent
and must not be subject to the whim of either the executive or
legislative departments. The security of human rights and the
safety of free institutions require freedom of action on the part
of the court.” Rose v. Palm Beach City, 361 So. 2d 135, 137 n.7

Due to the separation of powers provided by the Florida
Constitution, this Court is not obligated to permit the executive
branch to set the time parameters for considering the pending
collateral motions and/or any appeal arising therefrom.
Particularly given the adoption in 1996 of the continuous
warrant, Florida courts are clearly meant to have the power to
issue a temporary stay of execution to give itself the time
necessary to judiciously consider the collateral claims before
it. Courts have the power to govern their own dockets. The

amount of time that courts have to judiciously consider the
issues should be determined by the courts themselves, not by the
executive branch.

Additionally, this Court is required to protect Mr.
Tompkins’ Eighth and Fourteenth Amendment rights under the
federal Constitution. As he set forth in his motion for DNA
testing, he seeks to invoke his due process rights under the
federal constitution to conduct DNA testing on evidence in the
State’ possession. Se Osborne v. District Attorney’s Office, 521


F.3d 1118 (9 Cir. 2008), cert. granted, — U.S. — (November 3,
2008). Where constitutional rights - whether state or federal of
individuals are concerned, this Court may not abdicate its
responsibility in deference to the legislative or executive
branches of government. Instead, this Court is required to
exercise its independent power of judicial review. Ford v.
Wainwright, 477 U.S. 399 (1986). In order to perform that
function, this Court should enter a stay of Mr. Tompkins’
execution of sufficient duration as to permit adequate evaluation
and consideration of the newly disclosed discovery.

WHEREFORE, Mr. Tompkins respectfully requests that this
Court issue a stay of execution in order to permit judicious
consideration of the issues raised by his motions currently
pending in circuit court. Mr. Tompkins further asks for any and
all other relief which the Court deems just and proper.

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 February 9, 2009.

Florida Bar No. 0754773
Special Assistant CCRC-South
141 N.E. 30th Street
Wilton Manors, FL 33334

(305) 984-8344

101 N.E. Third Avenue
Fort Lauderdale, FL 33301

(954) 713-1284

Counsel for Mr. Tompkins

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