IN THE SUPREME COURT OF FLORIDA
CASE NO. 96,650
TERRY MELVIN SIMS,
Petitioner, Emergency Pleading Death Warrant Signed v. Execution Set for October 26, 1999 MICHAEL W. MOORE, at 7:00 a.m. Secretary, State of Florida, Department of Corrections, JAMES CROSBY, Superintendent, Florida State Prison,
Respondents. _________________________________/
RESPONSE TO PETITION SEEKING ALL-WRITS JURISDICTION AND FOR EXTRAORDINARY RELIEF
COME NOW Respondents, Michael Moore and James Crosby, by and
through the undersigned counsel, in response to Sims’ Petition
Seeking All-Writs Jurisdiction etc., filed on or about October 1,
1999, and move this Honorable Court to deny all relief requested
therein for the reasons set forth below:
1. While styled as an "All-Writs" petition, the pleading
before this Court is, in reality, nothing more than an unauthorized
motion for rehearing of this Court's September 24, 1999, decision
in
Provenzano v. Moore, 24 Fla. L. Weekly S443 (Fla., Sept. 24,1999). Petitioner, not being a party to the Provenzano action,
lacks standing to present such a motion; this Court, of course,
denied leave for Death Row inmates other than Provenzano (such as
other death row inmates Swafford, Byrd, Lopez, Breedlove,
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Haliburton, Kokal and Groover) to intervene in the Provenzanolitigation. While Terry Sims faces scheduled execution, he presents
no cause why the
Provenzano holding should not apply to thisaction. This Court's
Provenzano decision decides the issuescontained in the "All-Writs" petition, and is the law in this
State. This Court therein affirmed the Circuit Court's order
finding that the electric chair is not unconstitutional, and the
instant petition does not allege why this Court should revisit
Provenzano
a week after it was decided. The constitutionality ofthe Florida electric chair has been decided adversely to the
petitioner, and the "All-Writs" and "Extraordinary Relief" petition
should be denied.
2. To the extent that the petitioner alleges in the petition
that "[t]his Court has also created conditions ... [causing
petitioner] to suffer severe psychological torment prior to his
execution", by virtue of some of the language employed in recent
individual opinions in
Provenzano and Jones v. State, 701 So.2d 76(Fla. 1997) (All-Writs Petition at 9-10 ),such claim has no legal
or rational basis; ironically, petitioner’s counsel rely upon these
very concurring or dissenting opinions as the basis for any legal
argument presented in the instant petition (All-Writs Petition at
3-8). Other than noting that "[i]t is accepted that the thought of
execution may exact considerable toll",
Giarratano v. Murray, 836F.2d 1421, 1426 (4th Cir. 1988),
en banc, 847 F.2d 1118 (1988),3
rev'd, 109 S.Ct. 2765 (1989), this claim deserves no furthercomment.
WHEREFORE, for the aforementioned reasons, Respondents move
this Honorable Court to deny all requested relief for the reasons
set forth above.
Respectfully submitted,
ROBERT A. BUTTERWORTH ATTORNEY GENERAL
___________________________ JUDY TAYLOR RUSH ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 438847
___________________________ KENNETH S. NUNNELLEY ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 998818
OFFICE OF THE ATTORNEY GENERAL 444 Seabreeze Blvd., 5th Floor Daytona Beach, Florida 32118
COUNSEL FOR RESPONDENTS
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CERTIFICATE OF SERVICEI HEREBY CERTIFY that a true and correct copy of the foregoing
Response to Petition Seeking to Invoke this Court’s All-Writs
Jurisdiction and Petition for Extraordinary Relief has been
furnished by U.S. Mail to Timothy P. Schardl, Law Offices of Mark
E. Olive, P.A., 320 West Jefferson Street, Tallahassee, Florida
32301; and Steven H. Malone, Assistant Public Defender, 15th
Judicial Circuit, 421 Third Street, West Palm Beach, Florida 33401,
this _____ day of October, 1999.
____________________________ OF COUNSEL
