IN THE DISTRICT COURT OF APPEAL FIRST APPELLATE DISTRICT OF FLORIDA

JIMMY ATES, ) Case No. ) Petitioner, ) LT Case No.: 1997-CF-000945 ) (Okaloosa County) v. ) ) STATE OF FLORIDA ) ) Respondent )

PETITION FOR WRIT OF PROHIBITION

KRISTA A. DOLAN FLORIDA BAR No.: 1012147

SETH MILLER, ESQ. FLORIDA BAR NO.: 0806471 INNOCENCE PROJECT OF FLORIDA 1100 PARK AVENUE TALLAHASSEE, FL 32301 (850) 561-6767 x. 1004

(850) 561-5077 (FAX) Email: kdolan@floridainnocence.org

Counsel for Petitioner Jimmy Ates

Filing # 98957562 E-Filed 11/15/2019 01:44:46 PM

RE

CE

IVE

D, 1

1/15

/201

9 01

:45:

39 P

M, C

lerk

, Fir

st D

istr

ict C

ourt

of

App

eal

1

The Petitioner, JIMMY ATES, by and through undersigned counsel and

pursuant to Florida Rule of Appellate Procedural 9.100, petitions this Court for a

writ of prohibition seeking review of the trial court’s order denying his motion for

discharge based on a violation of Fla. R. Crim. P. 3.191(b).1 He alleges as follows:

I. BASIS FOR INVOKING JURISIDCTION

This Court has jurisdiction to issue a writ of prohibition under article V,

section 4(b)(3) of the Florida Constitution, and Florida Rule of Appellate Procedure

9.030(b)(3). Prohibition is the proper remedy to challenge a trial court’s order

denying a motion for discharge based on a violation of the speedy trial rule. See

Pearson v. State, 18 So. 3d 645 (Fla. 1st DCA 2009).

II. STATEMENT OF FACTS

a. Procedural Background.

On September 23, 1998, a jury found the Petitioner guilty of first-degree

murder, and he was sentenced to life in prison, with parole eligibility after serving

25 years. He appealed to this Court, which affirmed his conviction and sentence on

July 31, 2000. See Ates v. State, 768 So. 2d 446 (Fla. 1st DCA 2000).

On March 20, 2008, the Petitioner filed a pro se Rule 3.850 Motion for

Postconviction Relief based on newly discovered evidence and failure to disclose

1 If there is another, more appropriate basis for the Court to review this matter, the Petitioner respectfully requests the Court to treat this pleading pursuant to that basis. See Fla. R. App. P. 9.040(c).

2

favorable evidence to the defense. Specifically, he argued the state knowingly

withheld evidence, including an unidentified fingerprint lifted from a box of

ammunition from the crime scene that was not a match to him or the victim. He later

supplemented this Motion with another ground of newly discovered evidence

claiming that the FBI had disavowed the comparative bullet lead analysis testimony

offered by an FBI agent at his trial. The state wrote a lengthy, 40-page response

detailing the entire factual record agreeing that Mr. Ates was entitled to a new trial.

(ROA 4987-5025). On December 17, 2008, the circuit court granted his Motion for

Postconviction Relief based on these Brady and Newly Discovered Evidence claims.

(ROA 5099-5103).

On March 10, 2011, the jury at retrial found the Petitioner guilty of first-

degree murder and he was again was sentenced to life in prison. This Court affirmed

his conviction and sentence. See Ates v. State, 94 So. 3d 584 (Fla. 1st DCA 2012).

On July 27, 2016, the Petitioner filed another Motion for Postconviction

Relief lodging a claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), alleging

that the State withheld a wire recording discussion between a confidential informant

and a known murderer, Jackie Long, wherein the two discussed Long having also

murdered the victim in the instant case. At an evidentiary hearing held in March

2018, the confidential informant testified both about the conversation that took place

on the recording, as well as an unrecorded conversation in which Long confessed to

3

her that he murdered the victim in this case. In August 2018, the circuit court vacated

the first-degree murder conviction and life sentence in this case, finding the State’s

suppression of the wire recording and cumulative effect of its suppression

undermined confidence in the outcome of the Petitioner’s second trial. The State of

Florida appealed.

On August 29, 2018, Petitioner filed a motion to set bond pending appeal,

which the State opposed. The trial court subsequently set an appellate bond at

$1,500,000, an amount that Petitioner, who had mostly been in custody since 1997,

could not post. On October 24, 2018, Petitioner filed a Motion to Reduce Bond. The

State again opposed and the trial court denied the Motion.

Petitioner remained in custody pending the appeal. On July 18, 2019, this

Court per curiam affirmed the order granting a new trial. State v. Ates, No. 1D18-

3496, 2019 WL 3231085 (Fla. 1st DCA July 18, 2019). On July 31, 2019, Petitioner

filed a Motion to Set Bond. On August 3, 2019, the State objected. On September

18, 2019, in a written order, the trial court set the same bond of $1,500,000.

Petitioner remains in custody.

b. History of Executive Appointment.

Prior to Petitioner’s original trial, on February 27, 1997, the Governor’s

Office appointed the Eighth Judicial Circuit State Attorney to prosecute Petitioner’s

case, as the First Judicial Circuit State Attorney had a conflict of interest. See

4

Executive Order 97-086 (Attached at Appendix A). At the time, State Attorney Rod

Smith headed the office. The appointment was to last for one year with the option

by request of the prosecutor to extend the appointment. Id. The Eighth Judicial

Circuit State Attorney extended its appointment through the first trial and was

reappointed to represent the State for Petitioner’s 2008 postconviction proceeding.

See Executive Order 08-75 (Attached at Appendix B). By this time, the Eighth

Circuit State Attorney was William Cervone, and it was his office that filed a 40-

page memorandum recommending a new trial. When the trial court granted Mr. Ates

a new trial as a result of that postconviction proceeding, the Governor’s Office on

March 6, 2009, pursuant to Executive Order 09-44, again appointed the Eighth

Judicial Circuit State Attorney to prosecute Petitioner’s second trial. (Attached at

Appendix C). The Eighth Judicial Circuit State Attorney then specifically assigned

James Colaw, then an assistant state attorney, to prosecute the case. (Attached at

Appendix D).

Prior to the one-year expiration of Executive Order 09-44, on November 19,

2009, the Governor’s Office, pursuant to Executive Order 09-255, appointed the

Fourth Judicial Circuit State Attorney to prosecute Petitioner’s case, as Colaw had

relocated to Jacksonville and joined the Fourth Judicial Circuit State Attorney’s

Office. (Attached at Appendix E). The Fourth Judicial Circuit Stated Attorney

remained on the case throughout the second trial, and was again appointed to

5

represent the State in connection with a family member’s request for the return of

evidence. The Fourth Judicial Circuit State Attorney requested an extension of that

appointment, which was granted by Executive Order 16-12, when Petitioner filed

his 2016 postconviction motion related to the withholding of the wire recording

between the confidential informant and Jackie Long. (Attached at Appendix F). The

Fourth Judicial Circuit State Attorney specifically assigned assistant state attorneys

Lara Mattina and Sheila Loizos to represent the State on January 19, 2018 in that

postconviction proceeding. (Appendix G). Both Mattina and Loizos served as

counsel of record at Petitioner Ates’ postconviction evidentiary hearing on March

19, 2018 related to this Brady claim.

Following the trial court’s August 14, 2018 order granting another new trial,

the Governor’s Office again extended the Fourth Judicial Circuit State Attorney’s

appointment by Executive Order 18-216 for a period of one year, set to expire on

August 26, 2019. (Attached at Appendix H). The Executive Order indicated that the

Assistant State Attorney “shall notify the Governor on or before July 26, 2019, if

additional time is required.” Id.

On July 18, 2019, this Court issued a per curiam affirmance of the trial court’s

grant of a new trial. The trial court set an October 7, 2019 trial date, to which none

of the parties objected. Petitioner was highly motivated for a trial because he is 73-

years-old, had been in custody for all but two years and two months since his 1998

6

conviction, maintained his innocence of this crime, and could not post the trial

court’s bond. As such, Petitioner prepared vigorously for the October 7, 2019 trial,

as evidenced by the 26 motions he filed between July 31, 2019 and September 16,

2019, including motions for discovery and motions to compel discovery.

During an August 28, 2019 e-mail exchange pertaining to scheduling a routine

status hearing, Assistant State Attorney Lara Mattina informed the Court and the

defense that neither she nor Ms. Loizos would attend the hearing as the Fourth

Judicial Circuit State Attorney’s gubernatorial appointment expired two days earlier.

(Attached at Appendix I). At a September 6, 2019 telephonic status hearing at which

Seth Miller, counsel for Petitioner, as well as Ms. Mattina and William Cervone,

State Attorney for the Eighth Judicial Circuit, participated, the circuit court struck

the October 7, 2019 trial date, over defense objection, as a result of there being no

prosecutor on the case.2 (Transcript of September 17, 2019 Hearing, at 20-21,

Attached at Appendix J) [hereinafter T.]. On September 16, 2019, the Governor’s

Office, via Executive Order 19-200, appointed the Eighth Judicial Circuit State

Attorney to replace the Fourth Judicial Circuit State Attorney. (Attached at

Appendix K). As a basis for replacing the Fourth Judicial Circuit State Attorney, the

2 At this unrecorded status hearing, Mr. Cervone indicated that at least two other state attorney offices had chosen not to accept the appointment and that his office was considering accepting the appointment, but the October 7, 2019 trial date posed a significant difficulty.

7

order stated that the State Attorney for the Fourth Judicial Circuit “advised that the

assistant state attorney handling the case is no longer employed in the state attorney’s

office and assignment in the case because of distance presents a hardship on her

office.” Id.

c. Demand for Speedy Trial.

On September 9, 2019, the Petitioner filed a demand for speedy trial pursuant

to Fla. R. Crim. P. 3.191(b). (Attached as Appendix L). On September 17, 2019, the

State filed a motion to strike the demand, and alternatively asked for an extension of

speedy trial based on exceptional circumstances. (Attached as Appendix M). In

support of its motion, the State argued that Petitioner’s demand was not bona fide

because of his outstanding discovery requests. Alternatively, the State argued that

speedy trial should be extended for exceptional circumstances, specifically, the State

argued:

[T]his case is in excess of 20 years old, has been tried to conviction, retried to a second conviction after appellate reversal, and is now before the court for a third trial after post-conviction relief was granted. Most recently, the 1st District Court of Appeal issued its mandate in that regard on August 8, 2019. The undersigned was appointed by the Governor of Florida to represent the State because of a conflict in the office of the 1st Circuit State Attorney on September 16, 2019, prior to which and most immediately the 4th Circuit State Attorney had been assigned to and had handled the defendant’s second trial and related post-conviction proceedings, that appointment having expired. Although the 8th Circuit State Attorney was appointed to and handled the original trial in this case in 1998, no one involved in that trial remains employed by the 8th Circuit. In anticipation of a possible gubernatorial appointment, the undersigned requested and received

8

from the 4th Circuit State Attorney all file material, that having been delivered to the undersigned on September 10, 2019, and consisting of 17 file boxes. Given the nature of the charges in the case, the volume of material involved, the complexity of the issues as evidenced by the multiple outstanding defense motions, it is unreasonable to expect the undersigned to adequately investigate or prepare within the periods of time contemplated by Rule 3.191 or required by the defendant's Demand For Speedy Trial.

Appendix M, pg. 4.

d. Hearing Held on September 17, 2019.

The trial court held a hearing on Petitioner’s demand on September 17, 2019.

The state relied on its motion, and further argued that the defense’s September 16,

2019 disclosure of five expert witnesses further supported his argument that “the

State cannot be held to an impossible burden of going to trial any time soon in this

case.” T. 5.

In opposition, Petitioner argued not only that he was prepared to go to trial,

but that the state failed to demonstrate any exceptional circumstances warranting an

extension of speedy trial. See T. 6-21. Regarding whether the demand was bona fide,

the defense argued that the right to discovery and the right to a speedy trial are

mutually exclusive rights, and participation in discovery does not preclude

exercising the right to speedy trial. T. 6. Petitioner argued that the record clearly

demonstrated preparedness—specifically, Petitioner noted that he had filed 26

motions, most of which were substantive; that he had retained nine experts in a

variety of fields; that the defense investigator had spoken with more than 40

9

witnesses in the case; and the defense team had reviewed multiple case materials,

including an 11,000-page record on appeal with testimony from two different trials,

and prior counsel’s files. T. 7-12.

With regard to the alleged exceptional circumstances, Petitioner argued the

state had not demonstrated what was so complex about the case that an extension of

speedy trial was necessary. Specifically, Petitioner argued that the state, either the

Fourth or Eighth Judicial Circuit State Attorneys, had continuously been on the case

since its inception, and that the appointment of the Eighth Judicial Circuit State

Attorney the day before this hearing did not create an exceptional circumstance, as

nothing precluded the Fourth Judicial Circuit State Attorney from preparing for trial

at any time prior to the hearing, as Petitioner had done. Petitioner further argued that

the Fourth Judicial Circuit failed to provide any explanation or reason why it could

not have remained on the case and that its exit from the case appeared to be of its

own volition rather than necessity.

Following argument, the Court found Petitioner’s demand for a speedy trial

was bona fide, and thus denied the State’s motion to strike. T. 25. It then found that

exceptional circumstances warranted the extension of speedy trial. Specifically, the

Court found:

1) That the case is 28 years old. T. 26;

10

2) That the law with respect to the admissibility of certain evidence has

changed materially since the prior trial—specifically, the Florida

Supreme Court adopted the Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579 (1993), standard for the admissibility of scientific or

technical evidence. (Id.);

3) That the Eighth Judicial Circuit State Attorney was appointed the day

prior to the hearing. (Id.);

4) That the case is complex based on the length,3 the number of

documents, the evidence sought to be elicited, and the evidence sought

to be excluded. (Id.)

Based on these circumstances, the Court issued a written order on September

18, 2019 granting an extension of speedy trial, to run 120 days from the September

17, 2019 hearing. (Order Attached at Appendix N). On October 30, 2019, Petitioner

filed a Notice of Expiration of Speedy Trial. On November 13, 2019, Petitioner filed

a Motion for Discharge, which the trial court denied on November 15, 2019

(Attached at Appendix O). Petitioner now seeks review of that decision, challenging

the Court’s finding of exceptional circumstances.

IV. NATURE OF THE RELIEF SOUGHT

3 Presumably this refers to the length of time that had passed since the crime.

11

The Petitioner requests review of the lower court’s denial of his motion for

discharge, and the issuance of a writ of prohibition directing the lower court to

dismiss his first-degree murder charge with prejudice on the basis that the

prosecution for this charge is barred by the expiration of the speedy trial time period,

and immediately discharge the Petitioner.

IV. ARGUMENT

Fla. R. Crim. P. 3.191(b) provides that a person charged by indictment has the

right to demand a trial within 60 days from the filing of the demand. If not brought

to trial within 50 days of the demand, he may file a Notice of Expiration of Speedy

Trial, and if not tried within ten days of the notice of expiration, he must be

discharged. Fla. R. Crim. P. 3.191(p). Here, Petitioner filed his demand on

September 9, 2019. The 50-day period expired on October 29, 2019. Petitioner filed

his Notice of Expiration on the October 30, 2019, and the State failed to try Petitioner

within 10 days. As such, Petitioner moved for discharge, which the trial court denied.

The standard of review is de novo as to the trial court’s denial of discharge, but

deferential as to the trial court’s factual findings if supported by competent,

substantial evidence. Reid v. State, 114 So. 3d 277, 279 (Fla. 4th DCA 2013)

(receded from on other grounds by State v. Born-Suniaga, 219 So.3d 74 (Fla. 4th

DCA 2017). As it is a question of law what occurrences constitute exceptional

circumstances under Fla. R. Crim. P. 3.191(l)(2), this Court’s review is de novo. See

12

DHL Exp. (USA), Inc. v. State, ex rel. Grupp, 60 So. 3d 426, 428 (Fla. 1st DCA

2011) (noting that the standard of review on a question of law presented in a writ of

prohibition is de novo).

Fla. R. Crim. P. 3.191(l) enumerates specific exceptional circumstances as:

(1) [U]nexpected illness, unexpected incapacity, or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial; (2) [A] showing by the state that the case is so unusual and so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule; (3) [A] showing by the state that specific evidence or testimony is not available despite diligent efforts to secure it, but will become available at a later time; (4) [A] showing by the accused or the state of necessity for delay grounded on developments that could not have been anticipated and that materially will affect the trial; (5) [A] showing that a delay is necessary to accommodate a codefendant, when there is reason not to sever the cases to proceed promptly with trial of the defendant; or (6) [A] showing by the state that the accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise.

Fla. R. Crim. P. 3.191(l)(1)-(6). The only factor at issue in the case sub judice is the

second circumstance—that the case is so unusual and so complex, because of the

number of defendants or the nature of the prosecution or otherwise, that it is

unreasonable to expect adequate investigation or preparation within the periods of

time established by this rule.

13

A writ of prohibition is the appropriate remedy to prohibit trial proceedings

where a petitioner has been denied his right to a speedy trial and his motion for

discharge has been denied. Sherrod v. Franza, 427 So.2d 161 (Fla. 1983). A writ is

also the appropriate remedy to review the propriety of the extension of the speedy

trial window for exceptional circumstances pursuant to Fla. R. Crim. P. 3.191(l). See

e.g., Ignizio v. Gersten in & for Dade Cty., 483 So. 2d 877 (Fla. 3d DCA 1986)

(reviewing a petition for a writ of prohibition of the trial court’s order extending the

speedy trial limit.).

The circuit court found the state made a showing of exceptional circumstances

warranting an extension of speedy trial. Specifically, it found the age of the case—

that it was 28-years-old—to be a complicating factor, in addition to the fact that the

standard for admissibility of evidence has changed since the prior trials. T. 26.

Finally, the circuit court found the Eighth Judicial Circuit State Attorney’s late

appointment and large number of documents to be complicating factors. For the

reasons stated below, this extension of the speedy trial period was reversible error.

At the outset, it must be emphasized that the trial court found Petitioner’s

demand to be bona fide even where Petitioner’s counsel was uncertain it had all the

discovery in the State’s possession. As such, the Court believed the Petitioner had

adequately prepared its case, and had the necessary time to do so. Given that

Petitioner had the same amount of time to prepare his case as the State had to prepare

14

its case, the Court’s findings are logically inconsistent. If the Court found the defense

was prepared, i.e., had time to become prepared, then it should have also found that

the State could not show the case was so complex it could not be prepared in the

same time frame. Notably, Fla. R. Crim. P. 3.191(l) specifically notes that

exceptional circumstances “shall not include . . . lack of diligent preparation.”

Accord Lee v. State, 430 So.2d 516, 517 (Fla. 2d DCA 1982) (“In fact, that rule

provides that “exceptional circumstances shall not include . . . lack of diligent

preparation or . . . other avoidable . . . delays.”).

The trial court further found that Florida’s adoption of the Daubert standard

for the admissibility of scientific and technical evidence made the case complex. T.

26. As this is now the evidentiary standard the State will be held to in every case and

has been so since its adoption by the Florida Supreme Court on May 23, 2019, it

cannot possibly be an exceptional circumstance. That would be akin to allowing an

extension of speedy trial any time the evidence code is amended. This hardly seems

to be what is contemplated by “exceptional circumstances.” Further, Daubert only

comes into play when the defense subjects the State’s case to adversarial testing. By

extension, the trial court’s holding implies that Petitioner’s filing of multiple

Daubert challenges complicates the State’s case such that he must forgo his right to

a speedy trial. This creates a false choice for a defendant—he must either elect to

have a speedy trial, or to challenge the state’s evidence and confront its witnesses.

15

See Feast v. State, 126 So. 3d 1168 (Fla. 4th DCA 2012) (explaining the speedy trial

statute is not intended to make a defendant choose between various rights). A robust

challenge to the state’s case does not fundamentally change the facts or complexity

of the case, and the trial court erred by finding to the contrary. Also, while the trial

court noted that the challenges make the state’s case more complex, in reality,

Petitioner’s extensive pretrial motion practice makes it likely that the state’s

evidence will be limited in a number of ways, further simplifying preparation and

shortening the presentation of evidence. And any supposed complexity in the

Daubert issues is mitigated substantially in that there are written transcripts that

detail exactly the factual issues that underlay the scientific issues.

To the same point, setting aside complexity, the Eighth Judicial Circuit State

Attorney’s late appointment has no bearing on the case’s complexity. While a new

prosecutor on the case may make it more difficult for the state to be ready, it does

not make the case inherently more complex. If that were the case, the speedy trial

right could be nullified simply by the predecessor State Attorney affirmatively

seeking a gubernatorial reassignment to a different State Attorney, as was done in

this case, or even simply reassigning the case to a new prosecutor within the same

office. It is the duty of the State of Florida to prosecute a defendant, not of a

particular circuit state attorney, or a particular prosecutor within a single office. To

be clear, the state has had a representative on the case for its entire duration from

16

before the original 1998 prosecution to present. Thus, a change in counsel has no

connection to the complexity of the case.4

Ultimately, the Fourth Judicial Circuit State Attorney made a series of

affirmative choices that put the Eighth Judicial Circuit State Attorney in a difficult

position: 1) It chose not to conduct investigation or work on the case during the

pendency of the state’s appeal of the 2018 grant of postconviction relief and a new

trial; 2) Following this Court’s affirmance of the lower court’s grant of a new trial,

it took no steps to conduct investigation or respond to defense motions; 3) It agreed

to an October 7, 2019 trial date without an objection; 4) It failed to seek early

termination of its appointment in order to have a new circuit state attorney appointed

in advance of the third trial to give that new office increased time to prepare; 5) It

alternatively failed to seek reappointment so the Fourth Judicial Circuit State

Attorney could remain as counsel of record for the State; and 6) It failed to provide

any basis for its failure to seek reappointment. It is apparent from the face of the

executive orders that both early termination (see, e.g., Executive Order 09-44), and

4 To be sure, the State of Florida, including the assigned Fourth Circuit office, was highly motivated throughout these recent proceedings to ensure Petitioner’s bond remained at an amount he could never post and remain in custody while simultaneously asserting it was entirely unable to prepare for Petitioner’s trial. It simply cannot be that the State may charge an individual with the most serious crime while opposing a bond of any amount, or seeking an amount it knows a defendant cannot post and simultaneously asserting that it is in no position to bring the same charged defendant to trial during the time mandated by the Florida Rules of Criminal Procedure.

17

reappointment (see, e.g., Executive Orders 08-75, 18-216) were options that were

not only available to the Fourth Judicial Circuit State Attorney, but exercised by the

state in the past in this case.

As to the Fourth Judicial Circuit State Attorney’s rationale for allowing its

appointment to expire, the Executive Order appointing the Eighth Judicial Circuit

points to two reasons: 1) The hardship of the distance from Jacksonville, Fla. to

Crestview, Fla., and 2) That that the assistant state attorney handling the case is no

longer employed in the state attorney’s office. As to the distance, Gainesville, the

seat of the Eighth Judicial Circuit, is 298 miles from Crestview while Jacksonville,

the seat of the Fourth Judicial Circuit, is 308 miles from Crestview.5 Thus, distance

cannot be a valid hardship given that another State Attorney located at a similar

distance from the Fourth Judicial Circuit State Attorney had no similar barrier to

accepting appointment of the case. Moreover, distance was not a factor for the Fourth

Judicial Circuit State Attorney when it vigorously tried to preserve the Petitioner’s

conviction in the face of its most recent Brady violation, sending its investigators to

Okaloosa County to interview witnesses, re-familiarizing itself with the entire

record, and appearing in multiple court proceedings, including the March 2018

evidentiary hearing and September 2018 appellate bond hearing.

5 Petitioner asks this Court to take judicial notice of these distances. See, e.g. City of Miami Beach v. Tanner, 170 So. 2d 318, 319 (Fla. 3d DCA1964) (noting that the court is permitted to take judicial notice of distance).

18

Further, assistant state attorneys Sheila Loizos and Lara Mattina most recently

handled Petitioner’s case on behalf of the state.6 See Appendix G. According to the

Florida Bar web site, both are still in the employ of the Fourth Judicial Circuit State

Attorney’s Office. (Attached at Appendix Q). Though they did not handle the

Petitioner’s second trial, they gained vast familiarity with the case throughout the

pendency of the postconviction proceedings. Their investigator had interviewed key

trial witnesses, including the confidential informant, and their conduct at the 2018

postconviction evidentiary hearing indicated a clear understanding and knowledge

of the circumstances of the crime and evidence in this case.

The Fourth Judicial Circuit State Attorney made a series of affirmative

choices to let its gubernatorial appointment expire without using the time it had

before that point to investigate and prepare for trial or, alternatively, to seek a

withdrawal and reassignment at an earlier point to give the newly assigned state

attorney adequate time to prepare. Its choice to essentially abandon the prosecution

of this case certainly created a mess for the Eighth Judicial Circuit State Attorney,

now charged with cleaning it up and preserving the State’s ability to prosecute the

Petitioner. But these circumstances caused by the State of Florida should not trump

Petitioner’s right to a speedy trial, particularly where the Petitioner used precisely

6 The record on appeal indicates that Lara Mattina actually participated in pre-trial preparation for the second trial, as she was present at the depositions of at least two witnesses. (Attached at Appendix P).

19

the same period of time to be adequately prepared to try the case within the speedy

trial window. People v. Price, 923 N.E.2d 1107, 14 N.Y.3d 61, 64 (Ny. 2010)

(explaining that the “exceptional circumstances” provision in the speedy trial statute

are in place precisely “to discourage prosecutorial inaction”). By the precise words

of the rule, a “lack of diligent preparation” is plainly not an exceptional

circumstance. Fla. R. Crim. P. 3.191(l). Nor do these affirmative choices by the State

of Florida make the case so complicated as to warrant an exceptional circumstance

justifying an extension of speedy trial.

Putting the Fourth Circuit’s failure to prepare aside, the Eighth Judicial Circuit

State Attorney made its own affirmative choice to accept the judicial appointment.

State Attorney William Cervone has been in that position for two decades and

obviously knew the Petitioner could invoke Fla. R. Crim. P. 3.191(b) when accepting

that appointment. It can hardly be an exceptional circumstance when Petitioner did

so. Indeed, State Attorney Cervone had specific knowledge prior to accepting

appointment that Petitioner was ready for trial: He participated in the September 6,

2019 telephonic status conference where Petitioner stated he was ready for trial and

objected to the court striking the October 7th trial date. A cursory review of the

public docket, too, highlighted the Petitioner’s trial-readiness: the Petitioner filed

many relevant motions indicating he and his counsel were prepared and ready for

trial. All of this information was known or readily available to the Eighth Judicial

20

Circuit State Attorney when it accepted appointment of this case. Given this

available knowledge, State Attorney Cervone’s acceptance of the appointment

hardly can be a basis to find exceptional circumstances.

This is particularly so because the Eighth Judicial Circuit, under State

Attorney Cervone, had vast familiarity with the case and its facts, evidenced by its

40-page motion in response to Petitioner’s 2008 Motion for Postconviction Relief.

That motion detailed the facts of the case before ultimately agreeing Petitioner’s

constitutional rights were violated and a new trial was warranted. There is no reason

to think his office could not adequately prosecute the case within 70 days upon his

appointment given that history.

The trial court further found that the age of the case made it more complex,

but it cannot be said enough—the only reason the case has spanned more than 20

years is because the state has repeatedly withheld material exculpatory evidence.

Imputing complexity to the case based on its age allows the state’s misconduct to

invalidate Petitioner’s speedy trial right. In actuality, the age of the case makes it

less complex, as there are two previous trial transcripts the state can use as a road

map to prosecute this case a third time. Further, many witnesses have passed away,

making further investigation impossible, and the scene has long been unavailable for

reinvestigation. This is not a brand new case with multiple co-defendants and a mass

of discovery to generate for the first time. Indeed, the Fourth Judicial Circuit State

21

Attorney, in its discovery exhibit and demand for reciprocal discovery, filed on

August 2, 2019, a full month before Petitioner’s speedy trial demand, indicated that

it had already tendered discovery exhibits and materials over the pendency of the

case, and noted that it relied on those and incorporated them by reference. As for

witnesses, it disclosed only one additional witness that was new since the second

trial. (Attached at Appendix R). Thus, based on the Fourth Judicial Circuit State

Attorney’s representations, the State had nothing left to investigate, and nothing left

to disclose. The Eighth Judicial Circuit State Attorney cannot now claim a case that

was previously tried twice to conviction (once by its office), that has fewer living

witnesses, and will be further limited after the resolution of pretrial motion practice

is somehow more complex to the point where it is unable to conduct adequate

investigation and prepare for trial within the speedy trial window. In fact, in the

nearly two months since the speedy trial hearing, the state still has not disclosed any

additional witnesses.

Indeed, case law suggests that even if there is an exceptional circumstance,

though there is not here, an extension may not be justified: “[W]here exceptional

circumstances or complexities involved in the preparation of a case for trial were

occasioned by delay on the part of the state, they will not be deemed to justify a

delay of the trial and an extension of the rule period.” Stuart v. State, 360 So. 2d 406,

412 (Fla. 1978) (internal citations omitted). Other jurisdictions with similar speedy

22

trial provisions concur. See e.g., James v. State of Alaska, 2015 WL 9257032, at *7

(2015) (noting that speedy trial may be extended on the state’s motion when it can

reasonably be determined that “the State acted diligently in securing material

evidence”); Sweet v. Meyers, 612 P.2d 75, 77-78 (Colo. 1980) (district court’s

written motion for continuance merely stating a material witness was unavailable for

trial was an insufficient showing of due diligence); People v. Battles, 725 N.E.2d

779, 782 (Ill. 4th Dist. 2000) (State failed to meet its burden to show it diligently

attempted to procure the DNA testing it wanted during the statutory time allotted for

trial). The rule announced in Stuart and reinforced in other cases across the country

makes good sense because to hold otherwise would allow the State to engineer a

circumstance to circumvent speedy trial until it is fully ready to go to trial. This

would make the speedy trial right a nullity without purpose.

The state further argued that it could not be required to do the “impossible,”

and cited, in its motion to extend speedy trial, to Vaughn v. State, 453 So. 2d 929

(Fla. 2d DCA 1984), in support. Vaughn, however, is inapposite. There, ten days

prior to the expiration of the 180-day period following the defendant’s arrest, the

trial court, on its own motion, extended the speedy trial window by five weeks for a

number of extenuating circumstances. Those circumstances were as follows: 1) that

there were 29 co-defendants with multiple felonies extending over a four-year period

and encompassing five counties; 2) that the state provided discovery with a witness

23

list of more than 200 witnesses, more than 400 exhibits, and more than 50 tape

recordings; 3) that some of the physical evidence was acquired by search and seizure

from multiple counties; 4) that in the course of investigating the case, the state had

discovered numerous additional witnesses necessitating the adding of predicate

crimes; 5) that the defendants in the case were arrested at different times; and 6) that

all defendants were offered a trial date within the window and declined. Id. at 930,

fn 1.

This is hardly analogous. Interestingly, in Vaughn, even with all of the

obvious complexities, the court added only five weeks to the speedy trial period, as

opposed to the 120 days given here. Setting that aside, Vaughn is clearly a case where

the state was working diligently to build its case, but the circumstances of the case

itself made it too difficult to try the case within the speedy trial window. Petitioner’s

case, on the other hand, has been ongoing since 1997, and the state has had a role in

that case for more than 20 years. The volume of discovery, witnesses, and exhibits

produced in Vaughn in the 180-day speedy trial window has not been similarly

produced in the 28 years since the crime in the instant case. In the instant case, there

is a single defendant, a single charge, a single victim, a single county, and a single

criminal episode. The impossibility of trying the case at issue in Vaughn is simply

not at play here. There is nothing about the nature of the prosecution in the instant

24

case that makes it unreasonable to conduct adequate investigation or prepare for trial

within the period required by the rule.

The State further relied on Brown v. State, 695 So. 2d 1275 (Fla. 1st DCA

1997), to justify its position that there are exceptional circumstances such that it

could not be prepared within the speedy-trial window. Brown, however, was a direct

appeal following a conviction where this Court was asked to address a specific

application of the speedy trial rule. There, the parties did not dispute whether there

was an exceptional circumstance—on the day the case was set for trial, during the

recapture period, the prosecutor became ill and required emergency surgery that

incapacitated her for two weeks, which fell squarely in what is now codified in Fla.

R. Crim. P. 3.191(l)(1), which is not at issue here. The only question for this Court

there was whether the exceptional circumstances exception was authorized during

the recapture period, and this Court held it was. Id. at 1276-77. Here, there is a clear

dispute whether exceptional circumstances exist warranting such an extension, and

thus Brown has no bearing on Petitioner’s case.

In short, the state’s argument, and the trial court’s subsequent ruling, suggests

a defendant may only invoke its speedy trial right when the state is ready to try the

case. The State of Florida, while (1) extending its executive appointment several

times in an attempt to defeat the Petitioner’s most recent postconviction Brady

challenge, and (2) vehemently fighting to keep Defendant in custody during the

25

pendency of those proceedings, failed to lift a finger to prepare for trial even after

the trial court vacated the Petitioner’s conviction, or even after this Court affirmed

that finding. The Fourth Judicial Circuit State Attorney then made the affirmative

choice to leave the case, leaving a first-degree murder case with no prosecutor for

nearly three weeks. Thus, such a delay and resulting complications occasioned by

the State were just the type the Florida Supreme Court said in Stuart do not justify a

delay of the trial and an extension of the speedy trial period.

V. CONCLUSION

For the foregoing reasons, the circuit court abused its discretion by extending

speedy trial where the State failed to establish the existence of exceptional

circumstances. As such, this Court should issue a writ of prohibition and direct the

trial court to discharge the Petitioner.

Respectfully submitted,

/s/ Krista A. Dolan KRISTA A. DOLAN Fla. Bar. No. 1012147 SETH E. MILLER Fla. Bar No. 0806471 Innocence Project of Florida 1100 East Park Avenue Tallahassee, Florida 32301 Tel: 850-561-6769 Fax: 850-561-5077 Email: kdolan@floridainnocence.org

Counsel for Petitioner

26

CERTIFICATE OF SERVICE

I DO HEREBY CERTIFY that a true and correct copy of the foregoing has

been furnished by electronic mail to the following, this 15th day of November, 2019.

William Cervone, State Attorney cervonenew@sao8.org Luis Bustamante bustamantel@sao8.org

Ashley Moody, Attorney General Office of the Attorney General PL01, The Capitol Tallahassee, Florida 32399-1050

Tara Thompson, Esq. Joshua Tepfer, Esq. Karl Leonard, Esq. Exoneration Project University of Chicago Law School tara@exonerationproject.org josh@exonerationproject.org karl@exonerationproject.org

The Honorable Michael Flowers Okaloosa County Court House 101 E James Lee Blvd. Crestview, FL 32536

/s/ Krista A. Dolan KRISTA A. DOLAN FLORIDA BAR NO.: 1012147

1100 PARK AVENUE TALLAHASSEE, FL 32301 (850) 561-6767 (850) 561-5077 (FAX) Email: kdolan@floridainnocence.org

Counsel for Petitioner

27

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the instant Petition has been prepared with Times

New Roman 14-point font in compliance with the requirements of Florida Rule of

Appellate Procedure 9.100(l).

/s/ Krista A. Dolan KRISTA A. DOLAN FLORIDA BAR NO.: 1012147

1100 PARK AVENUE TALLAHASSEE, FL 32301 (850) 561-6767 (850) 561-5077 (FAX) Email: kdolan@floridainnocence.org

Counsel for Petitioner