Florida Death Row Advocacy Group

Summary of Florida’s Capital Post Conviction Review Process
(Step 1, the actual trial, appeared in the October issue and Step 2, the direct appeal, in the November issue) Michael Lambrix
Step 3, Petition for a Writ of Certiorari
Within 30 days after the decision (conviction and/or death sentence is upheld) is rendered by the Florida Supreme Court (FLSC), notice must be made of intent to pursue a petition for writ of certiorari (PWC) requesting that the USSC review a specific question of constitutional law relevant to the case. Review by the USSC is discretionary and limited exclusively to questions of conflict of constitutional law. Typically a PWC is summarily denied within 3 months of filing. If review is granted, the case is docketed on the next term of the court for full briefing and oral arguments.
Step 4, State Post Conviction Appeal (Rule 3.850 Motion)
After certiorari review is denied by the USSC, the case is remanded back to the original trial court. Within 30 days of the conviction being affirmed, collateral post conviction counsel must be assigned, per FL Rule of Criminal Procedure, 3.851. In FL this is accomplished by either having a staff lawyer with the state funded Capital Collateral Regional Counsel (CCRC) assigned or if a CCRS lawyer is not available then a registry lawyer (=a lawyer in private practice) is assigned to the case.
The original post conviction appeal must be filed with the original trial court within 1 year of completion of the previous direct appeal. Although this is commonly known as a Rule 3.850 motion which is the primary rule governing all post conviction proceedings in criminal cases in FL, Rule 3.851 is exclusively applicable to capital post conviction proceedings and explicitly defines the nature and content of claims that may be raised as well as provides a general timetable in which each stage of post conviction review must be accomplished by the trial court.
However, very rarely will an original post conviction appeal actually be filed within this one year time frame due to various delays, i.e. obtaining relevant public records. To protect against a procedural default for failure to initiate the original post conviction appeal within the statutorily defined time frame of one year, a lawyer must file a shell motion with the trial court together with a contemporaneous motion for extension of time, (a shell motion = a draft of claims to fully raised once the relevant public records are provided.)
The claims generally raised within a CPCA include primarily and all claims alleging ineffectiveness by the trial lawyer. Such claims of error or incompetence must be raised within this original post conviction appeal, or will be procedurally barred from review forever.

To identify such claims the appeal counsel must investigate the entire case: look at the evidence presented at trial, especially forensic (DNA), claims of innocence. A claim of innocence based upon evidence not presented at trial cannot be raised in the earlier, direct appeal.
Once the completed original post conviction appeal is presented to the original trial court, the state is provided a reasonable opportunity to provide an answer to all allegations raised. The trial court will then schedule an evidentiary hearing on any claims upon which a factual dispute exists (To be continued.) Legal Question
How can I obtain information about compensation for the wrongly convicted? Unfortunately, only 16 states have any system to compensate such individuals, and the level of compensation varies wildly; Florida has no mechanism to compensate the wrongfully convicted.
Florida Supreme Court Capital Decision Review
Karin Elsea
Busby v State of Florida 2004 WL 2471387 (11/4/2004) Relief granted Background: Busby raised thirteen issues on appeal, FLSC ruled that the trial court erred in denying Busby's challenge for cause against potential juror Kim Lapan and declined to address the remaining issues. The FLSC agreed that Lapan should not have been left on the jury. The fact that he was former guard at FSP who was openly biased against DR inmates and who had admitted being willing to execute people who had committed premeditated murder on the jury, presented reasonable doubts as to his impartiality.
Everett v State of Florida 2004 Fla. LEXIS 2119 (11/24/2004) Relief Denied
FLSC denied all issues summarily but analyzed the first in light of Miranda and its progeny. Defendant contends that his motion to suppress his confession and the biological samples he provided should have been granted because they were obtained in violation of his rights under the 5th amendment. (The 5th provides that no person shall be compelled to be a witness against himself). Here the issue is whether an officer’s request for a consent to search or service of an arrest warrant on a defendant in custody who has invoked the right to counsel violates the 5th amendment. Held: the service of an arrest warrant is a routine police procedure, does not require an answer from a suspect, and does not constitute interrogation. Request for consent to provide DNA samples is not reasonably likely to elicit incriminating responses.