Supreme Court of Florida

A brief background of the facts in this case is necessary to analyze this issue. Provenzano's execution was originally set for Wednesday, July 7, 1999. On Monday, July 5, 1999, Provenzano submitted filings with the Governor claiming that Provenzano was insane to be executed, pursuant to section 922.07, Florida Statutes (1997). Section 922.07 states:

As required by the statute, the Governor stayed the execution on Tuesday, July 6, 1999 (the day before the execution was to take place) and appointed a commission of three psychiatrists to examine Provenzano. After receiving the report of the commission, the Governor determined that Provenzano had the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him. The Governor lifted the stay and reset the execution for Wednesday, July 7, 1999. Subsequently, Provenzano filed a motion in the circuit court pursuant to rule 3.811.

Rule 3.811 was created in response to the United States Supreme Court's decision in Ford v. Wainwright, 477 U.S. 399 (1986). In Ford, the Supreme Court held that a prisoner has a constitutional right not to be executed while insane. A plurality of the Supreme Court also concluded that a prisoner under sentence of death is entitled to a judicial review of a governor's decision that the prisoner is competent to be executed. Rule 3.811 states:

Provenzano's 3.811 motion included two reports from Dr. Patricia Fleming, a clinical psychologist, wherein she concluded, "It is my professional judgment that Mr. Provenzano is not competent to be executed." The submissions also included sworn affidavits from a practicing Florida attorney and other Death Row inmates detailing Provenzano's bizarre behavior. In order to give the circuit court time to consider the motion, this Court stayed Provenzano's execution until Friday, July 9, 1999. On Wednesday, July 7, 1999, the circuit court denied Provenzano's motion without a rule 3.812 hearing. Provenzano appealed the denial to this Court, claiming that the motion and submissions were sufficient to constitute "reasonable grounds" to believe that he was insane to be executed, thereby requiring a hearing pursuant to Florida Rule of Criminal Procedure 3.812. See Fla. R. Crim. P. 3.811(e). As stated above, this Court granted a stay of execution on Thursday, July 9, 1999, and directed the parties to submit briefs concerning the threshold requirement of "reasonable grounds" as used in rule 3.811(e).

We recognize that the application of the "reasonable grounds" standard articulated in rule 3.811(e) has caused some confusion. Since rule 3.811 went into effect in 1986, see In re Emergency Amendment to Florida Rules of Criminal Procedure (Rule 3.811, Competency to be Executed), 497 So. 2d 643 (Fla. 1986), only two defendants other than Provenzano have invoked the rule. See Medina v. State, 690 So. 2d 1241 (Fla. 1997); Martin v. State, 515 So. 2d 189 (Fla. 1987). Although both of these defendants eventually received hearings, see Medina, 690 So. 2d at 1249; Martin v. Dugger, 686 F. Supp. 1523, 1542 (S.D. Fla. 1988), we understand that this Court has offered little guidance to the circuit courts in regards to applying the rule.

However, we find that the evidence presented by Provenzano, which consisted of an expert report and other corroborating evidence of Provenzano's bizarre behavior, when taken alone, establishes reasonable grounds to believe that Provenzano is incompetent to be executed. The evidence presented by the State, which also included expert reports, created questions of fact on this issue. And these factual disputes should be examined and resolved in the crucible of an adversarial proceeding. Therefore, under the circumstances of this case, we remand for a hearing pursuant to rule 3.812. We decline to address Provenzano's claim that rule 3.811 and rule 3.812 are unconstitutional, as this claim is rendered moot by this Court's remand for a rule 3.812 hearing.

Accordingly, for the reasons expressed in this opinion, we remand this case for a hearing pursuant to rule 3.812. No motion for rehearing will be permitted.

It is so ordered.

HARDING, C.J., and SHAW, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

HARDING, C.J., concurs with an opinion, in which PARIENTE and LEWIS, JJ.,

concur.

WELLS, J., dissents with an opinion.

HARDING, C.J., concurring.

I concur with the majority opinion that Provenzano is entitled to hearing pursuant to Florida Rule of Criminal Procedure 3.812. I write separately to explain two points of disagreement that I have with the dissenting opinion. First, I question why the dissent recounted the procedural history of Provenzano's competence back to 1984. This historical backdrop has no relevance regarding whether Provenzano is incompetent to be executed at the present time.

Second, I disagree with the dissent's conclusion that the majority "has now taken the rule 3.811 decision away from the circuit court and placed it with a mental health expert chosen by the prisoner." Dissenting op. at 22 (Wells, J., dissenting). The majority opinion acknowledges that the "reasonable grounds" standard found in Florida Rule of Criminal Procedure 3.811(e) has caused some confusion. I read the majority opinion as providing guidelines to the circuit courts when faced with the decision as to whether a rule 3.812 hearing should be conducted. The majority opinion concludes that questions of fact on the issue of a defendant's sanity should be "examined and resolved in the crucible of an adversarial proceeding." Majority op. at 7. This procedure is in keeping with the Supreme Court's opinion in Ford v. Wainwright, 477 U.S. 399, 415 (1986), wherein Justice Marshall, writing for a plurality of the Court, stated:

As pointed out by the Supreme Court, the goal in this proceeding is to seek the truth. The mere potential for delay should not divert us from this goal, especially in light of the severity of the punishment in this case. The procedure established by the majority will ensure that this goal is realized.

PARIENTE and LEWIS, JJ., concur.

WELLS, J., dissenting.

I dissent to the reversal of Judge Johnson's order denying petitioner's motion brought pursuant to Florida Rule of Criminal Procedure 3.811. I conclude that there are several substantial reasons why petitioner's motion should be denied and the order of Judge Johnson affirmed.

I begin by putting this rule 3.811 motion into its proper context in the history of this case. The murder for which Provenzano was sentenced to death occurred on January 10, 1984. The direct appeal was decided by this Court in October 1986. Mental competency to have committed the crime or to be tried was not an issue in the direct appeal. However, there was an issue raised and rejected as to whether the trial judge abused his discretion in failing to find that Provenzano's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. See Provenzano v. State, 497 So. 2d 1177, 1184 (1986).

The Governor signed Provenzano's first death warrant on March 7, 1989, and Provenzano filed his first motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Dr. Patricia Fleming, a psychologist, interviewed Provenzano for eight hours on March 13 and 14, 1989. No issue as to Provenzano's incompetency to be executed was raised in that motion or in those proceedings, even though a death warrant had been issued and a central issue in the postconviction proceeding was Dr. Fleming's report, which concluded that Provenzano had not been competent to stand trial. Nor was the issue part of this Court's review, which led to its 1990 decision in Provenzano's case. See Provenzano v. Dugger, 561 So. 2d 541 (Fla. 1990). In its 1990 decision, this Court remanded the case on another ground for an additional postconviction proceeding before the trial court. Provenzano thereafter filed a second rule 3.850 motion, which was denied. In 1993, this Court affirmed. Provenzano v. State, 616 So. 2d 428 (Fla. 1993). In these proceedings there was no contention that Provenzano was incompetent to be executed, even though Dr. Fleming had conducted another interview with Provenzano in 1991.

Having run out of state court remedial options, Provenzano filed a petition pursuant to 28 U.S.C. § 2254 in the district court on June 30, 1993. There was no claim in that motion that Provenzano was incompetent to be executed, even though he had again been interviewed by Dr. Fleming on June 21, 1993. The United States District Court did not find an evidentiary hearing necessary. The court did issue a detailed opinion thoroughly analyzing each of Provenzano's claims. See Provenzano v. Singletary, 3 F. Supp. 2d 1353 (M.D. Fla. 1997). In that opinion, the Court did deal with and reject Provenzano's claim VIII that his constitutional rights were violated because "he was forced to undergo criminal judicial proceedings although he was not legally competent." The court's opinion says that "Petitioner relies primarily on the examination performed by Dr. Pat Fleming in 1989."

The denial by the United States District Court was appealed to the Eleventh Circuit, which affirmed the denial on August 6, 1998. There was no indication while the case was pending in the Eleventh Circuit of any claim that Provenzano was incompetent to be executed. See Provenzano v. Singletary, 148 F.3d 1327 (11th Cir. 1998).

The Governor signed Provenzano's second and present death warrant on June 9, 1999. Provenzano thereafter filed his third rule 3.850 motion. This Court ordered that any further proceedings in the case be expedited in view of the execution being scheduled for July 7, 1999. On June 23, 1999, the circuit court held a preliminary hearing to consider Provenzano's most recent 3.850 motion. In what this Court stated was "a very comprehensive and well-reasoned order," the circuit court subsequently denied Provenzano's 3.850 motion. See Provenzano v. State, 24 Fla. L. Weekly S314 (Fla. July 1, 1999). In this third 3.850 proceeding there was no claim that Provenzano was incompetent to be executed, even though Dr. Fleming had sent her letter dated June 18, 1999, which is attached to Provenzano's motion claiming that he was incompetent to be executed filed in our Court on July 6, 1999. A claim was raised in the third 3.580 motion that Provenzano was incompetent to proceed in postconviction. This claim that Provenzano was incompetent to proceed in postconviction was rejected by the circuit court. We affirmed that rejection. Id. at S315.

Dr. Fleming again interviewed Provenzano on July 5, 1999. Dr. Fleming's report, dated July 5, 1999, is attached to Provenzano's motion pursuant to rules 3.811 and 3.812, filed in this Court on July 6, 1999. On July 6, 1999, this Court entered an order which stated:

Judge Johnson then issued his order denying the rule 3.811 motion on July 7, 1999. In another thorough and well-reasoned order, Judge Johnson stated:

(Footnotes omitted.) I conclude that both what Judge Johnson says in his order and the procedural history of the case are significant to this Court's present consideration of Judge Johnson's determination that there were no reasonable grounds to proceed to a rule 3.812 proceeding.

In answer to the questions posed by Chief Justice Harding's concurring opinion, it is my view that, while I agree with the majority that the time immediately before the execution is a time which is material to be evaluated on this issue, I believe that the history of this case, especially since the 1989 warrant issuance, is also relevant. A warrant was pending in 1989, and Dr. Fleming first interviewed Provenzano right after that warrant issued. Ford v. Wainwright had been decided by the United States Supreme Court in 1986, and rules 3.811 and 3.812 had been adopted at the end of 1987. I think it is relevant to the present consideration that there was no contention, based upon Dr. Fleming's report in 1989, that Provenzano was insane to be executed. Rather, the contentions in 1989 in the motion that was filed and in the subsequent postconviction proceedings in both state and federal courts were based upon Dr. Fleming's opinions that Provenzano had been incompetent to be tried and was incompetent to proceed in postconviction. Both of these contentions were rejected by this Court and the federal court.

In view of Dr. Fleming's involvement since 1989 and there not being an assertion until July 6, 1999, that appellant was insane to be executed, I believe it is reasonable to conclude that what had to be evaluated by the circuit judge as to whether reasonable grounds existed under rule 3.811 was any deterioration in Provenzano's mental condition since 1989 on the specific limited issue of whether he is insane to be executed. This seems to me to be logical since the issue was not raised when the 1989 warrant was pending. Furthermore, the question before Judge Johnson on this discrete issue had to be analyzed as to how Dr. Fleming's opinion at present was different from the opinions which have been earlier reviewed in postconviction proceedings and found not to be a basis for relief. Dr. Fleming does indicate in the letters she wrote that are attached to the motion that Provenzano's mental condition has deteriorated. The question is whether Dr. Fleming's report said he had deteriorated so that he failed to be competent to be executed. In sum, though I agree that clearly the present mental status of the Provenzano is at issue, the decision made by Judge Johnson could not be in a vacuum without the earlier history of the Provenzano case being relevant to that consideration. Nor, in my opinion, can this Court's review of Judge Johnson's decision under rule 3.811 be made without considering all of this history. Obviously, if there had been previous assertions or reports prior to June 18, 1999, stating Provenzano was insane to be executed, there would be no question as to the relevance of that history.

I also consider what Justice O'Connor said in her concurring opinion in Ford v. Wainwright to be significant:

Medina v. State, 690 So. 2d 1241, 1247 (Fla. 1997) (quoting Ford, 477 U.S. at 429 (citations omitted)). Further, I point out the following from Justice Marshall's opinion in Ford v. Wainwright:

477 U.S. at 399 at 416-17 (emphasis added) (footnote omitted). To deal with the requirements and the admonitions of Ford v. Wainwright, the procedure which this Court adopted at the end of 1987 in rules 3.811 and 3.812 provided that the threshold determination of whether a further evidentiary hearing is required is to be made by the circuit judge.

I believe that rule 3.811 provides the safeguard which is required by the opinions of Justice Marshall and Justice O'Connor in Ford v. Wainwright. Rule 3.811 provides for a decision by the circuit court in order to provide the judicial review safeguard against an arbitrary decision by the Executive. However, rule 3.811 clearly does not provide for a move forward to a rule 3.812 hearing every time a prisoner files a report in which a psychologist has opined that the prisoner is incompetent to be executed. I conclude that the rule's requirement that the circuit court make a decision as to the existence of "reasonable grounds" intends what it plainly says, which is for the circuit court to make a decision as to whether reasonable grounds exist.

It has to be recognized that this proceeding comes immediately before a scheduled execution. In this case the process began only the day before the scheduled execution. Delaying the execution by simply invoking the process is not only a potential but rather is a certainty. It likewise has to be considered that a proceeding under rule 3.812 is an extensive proceeding. The rule provides:

Although the State can present the panel of mental health experts who were appointed by the Governor and who came to the conclusion on July 6, 1999, that Provenzano was incompetent to be executed, each side may present an entirely new battery of experts. The resultant delay and the extensiveness of what is involved in a rule 3.812 hearing must dictate the honoring of the rule 3.811 provision that before that proceeding is required, a judgment by the circuit court be made as to whether such a hearing is necessary.

We held in Medina that review of the circuit court's decision as to whether there are reasonable grounds pursuant to rule 3.811(e) is on the basis of whether there was an abuse of discretion. Medina, 690 So. 2d at 1246. I conclude that there is clearly a sufficient basis in this record to sustain Judge Johnson's decision against a claim that he abused his discretion. Judge Johnson clearly could reasonably make the decision that the record included what was at best an equivocal opinion of Dr. Fleming that Provenzano is incompetent to be executed and that Dr. Fleming's reports, when considered with the entire record, did not provide reasonable grounds for him to conclude that Provenzano was insane to be executed. My reading of the other affidavits and statements submitted to Judge Johnson, while showing that Provenzano's behavior was bizarre, do not sufficiently bolster Dr. Fleming's reports on the discrete issue of reasonable grounds to believe Provenzano insane to be executed to render Judge Johnson's conclusion an abuse of discretion.

The majority's reversal does nothing more than substitute its judgment for that of Judge Johnson. Moreover, in reality, this Court has now taken the rule 3.811 decision away from the circuit court and placed it with a mental health expert chosen by the prisoner. I think the majority has effectively rendered a nullity the safeguard which this Court determined in 1987 was necessary in this process.

An Appeal from the Circuit Court in and for Bradford County,

Clarence T. Johnson, Jr., Senior Judge - Case No. 99-286CFA

Michael P. Reiter,Chief Assistant CCRC, and Mark Gruber, Staff Attorney, Capital Collateral Regional Counsel - Middle, Tampa, Florida,

for Appellant

Robert A. Butterworth, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, Florida, and Carol M. Dittmar and Katherine V. Blanco, Assistant Attorneys General, Tampa, Florida,