in the supreme court of florida · gainesville, florida 32601 (352) 374-0604 (352) 374-4666...
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IN THE SUPREME COURT OF FLORIDA
JASON ANDREW SIMPSON,
Petitioner,
v. Case No.: SC12-605
L.T. No.: 16-2002-CF-11026
STATE OF FLORIDA,
Respondent.
ON REVIEW FROM THE CIRCUIT COURT,
FOURTH JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
REPLY TO STATE’S RESPONSE OPPOSING PETITION FOR REVIEW
OF NONFINAL ORDER IN CAPITAL CASE (REGARDING INSPECTION
AND TESTING OF EVIDENCE)
Sonya Rudenstine
Florida Bar No. 711950
204 W. University Avenue, Suite 5
Gainesville, Florida 32601
(352) 374-0604
(352) 374-4666 facsimile
John S. Mills
Florida Bar No. 0107719
Andrew D. Manko
Florida Bar No. 018853
The Mills Firm, P.A.
203 North Gadsden Street, Suite 1A
Tallahassee, Florida 32301
(850) 765-0897
(850) 270-2474 facsimile
Attorneys for Petitioner
i
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
TABLE OF CITATIONS ........................................................................................ iii
ARGUMENT IN REPLY TO STATE‟S RESPONSE ............................................. 1
I. The Petition Was Timely Because the Thirtieth Day Was a
Saturday, and Mr. Simpson Filed His Petition the Following
Monday. ................................................................................................. 1
II. The State Confuses the Three Pending Proceedings in This
Court. ..................................................................................................... 2
III. While He Could Meet Such a Burden, Mr. Simpson Should Not
Have to Prove a “Gross Miscarriage of Justice”; the Simple
Miscarriage of Justice Already Shown Should Suffice. ....................... 3
IV. The Trial Court Departed From the Essential Requirements of
the Law by Denying Mr. Simpson‟s Post-Conviction Counsel
and Experts Meaningful Access to the Physical Evidence. .................. 4
V. The Trial Court Departed From the Essential Requirements of
the Law by Foreclosing Potential Testing of the Evidence. ................. 9
A. Like the Trial Court, the State Erroneously Conflates the
Rule 3.853 Standard With the Standard That Will Apply
to Mr. Simpson‟s IAC and Destruction of the Evidence
Claims. ........................................................................................ 9
B. Like the Trial Court, the State Misconceives the Nature
of Both the DNA Evidence Offered at Trial and the
Evidence Mr. Simpson Seeks to Develop on Post-
Conviction Review. ...................................................................10
C. This Proceeding Does Not Present Any Frye Issues. ...............12
D. Like the Trial Court, the State Misconstrues Mr.
Simpson‟s Discussion of His Post-Conviction Claims and
the Fundamental Weaknesses in the State‟s Case at Trial. .......13
ii
VI. The State Does Not Explain How an Appeal From the Final
Order on the 3.851 Motion Could Provide an Adequate
Remedy. ...............................................................................................15
CERTIFICATE OF SERVICE ................................................................................16
CERTIFICATE OF COMPLIANCE .......................................................................16
APPENDIX
Motion to Compel Compliance with Fla. R. Crim. P. 3.852 .................. App. 1
Email Following Up on Missing Evidence .......................................... App. 11
iii
TABLE OF CITATIONS
CASES
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) ............................................... 12
Huff v. State, 622 So. 2d 982 (Fla. 1993) ................................................................. 13
Kelley v. State, 974 So. 2d 1047 (Fla. 2007) ........................................................... 10
Hitchcock v. State, 866 So. 2d 23 (Fla. 2004) ......................................................... 10
Lightbourne v. State, 742 So. 2d 238 (Fla. 2005) .................................................... 14
Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla.
2012) ................................................................................................................ 4
Olvera v. State, 870 So. 2d 927 (Fla. 4th DCA 2004) ............................................. 10
State v. Gunsby, 670 So. 2d 920 (Fla. 1995) ........................................................... 14
State v. Steele, 921 So. 2d 538 (Fla. 2005) ................................................................ 4
Suggs v. State, 923 So. 2d 419 (Fla. 2005) .............................................................. 14
Sutton v. State, 975 So. 2d 1073 (Fla. 2008) ............................................................. 4
Tompkins v. State, 872 So. 2d 230 (Fla. 2003) ........................................................ 10
Turner v. State, 4 So. 3d 677 (Fla. 2009) ................................................................... 4
STATUTES, CONSTITUTIONAL
PROVISIONS, AND RULES OF COURT
§ 924.11, Fla. Stat. ................................................................................................... 10
Fla. R. Crim. P. 3.851 ...................................................................................... 1, 9, 10
Fla. R. Crim. P. 3.853 ................................................................................ 1, 9, 10, 13
Fla. R. App. P. 9.142 .................................................................................................. 4
Fla. R. App. P. 9.420 .................................................................................................. 1
1
ARGUMENT IN REPLY TO STATE’S RESPONSE
The State has failed to argue that Mr. Simpson has an adequate remedy on
plenary appeal, and it has failed to offer any persuasive reason why this Court
should not find that the trial court departed from the essential requirements of the
law by refusing Mr. Simpson‟s post-conviction counsel and experts any
meaningful access to the crime scene evidence. That evidence is at the center of his
claims that trial counsel rendered ineffective assistance of counsel (“IAC”) in
failing to have the evidence analyzed and tested by experts in DNA and crime
scene reconstruction or his claim that the State violated his due process rights by
not adequately preserving the physical evidence.
Indeed, the State does not even attempt to address the overarching question
presented in this proceeding: How can a defendant prove that his counsel was
ineffective for not having evidence analyzed or that the State failed to adequately
preserve the evidence if the State prevents him from having his experts determine
what the analysis might have revealed or whether the evidence was in fact
adequately preserved? The arguments it does put forth are easily overcome.
I. The Petition Was Timely Because the Thirtieth Day Was a Saturday,
and Mr. Simpson Filed His Petition the Following Monday.
The trial court‟s order was rendered March 1, 2012, and thirty days from that
date was Saturday, March 31, 2012. Thus, Mr. Simpson‟s petition was timely filed
on Monday, April 2, 2012. Fla. R. App. P. 9.420(f).
2
II. The State Confuses the Three Pending Proceedings in This Court.
The State correctly notes that this is one of three proceedings arising out of
Mr. Simpson‟s case that are currently pending in this Court, but at times it appears
to confuse them. The instant proceeding seeks review of the order denying the
motion to inspect and potentially test the physical evidence, but only to the extent
that relief was sought to assist in Mr. Simpson‟s pending Rule 3.851 proceedings.
The instant non-final review proceeding cannot address the extent to which the
relief was sought to assist in Mr. Simpson‟s anticipated Rule 3.853 motion to
conduct DNA testing. That is because the order is a final order with regard to Rule
3.853 relief and is therefore reviewable by direct appeal.
Mr. Simpson‟ appeal of that aspect of the trial court‟s order is pending as
Case No. SC12-633. While the factual underpinning of the two proceedings are
common, the legal standards are very different. Indeed, the Court declined to
consolidate these two proceeding for briefing, so the instant case involves only the
standard of review and substantive law regarding discovery in support of a Rule
3.851 motion, and the State‟s arguments relating to Rule 3.853 do not belong here
as discussed in more detail below.
Finally, contrary to the State‟s repeated arguments that the stay of the
proceedings below be lifted, that stay has nothing to do with this proceeding.
While Mr. Simpson was prepared to seek a stay of the lower court‟s proceedings
3
pending this review proceeding, the need to do so was removed when this Court
stayed the proceedings below pending its determination of the third proceeding
pending here, which is Mr. Simpson‟s appeal in Case No. SC12-763 of the trial
court‟s order denying his motion to disqualify the presiding trial judge. If that
proceeding is determined before this proceeding is resolved, then Mr. Simpson will
likely seek a further stay. But for now, this proceeding does not impact the stay.
III. While He Could Meet Such a Burden, Mr. Simpson Should Not Have to
Prove a “Gross Miscarriage of Justice”; the Simple Miscarriage of
Justice Already Shown Should Suffice.
The State devotes much of its response to simply quoting the trial court‟s
order and asserting, with scant actual analysis, that the order “facially exudes
reasonableness” and “the non-gross miscarriage of justice.” (Resp. at 10.) It
contends that this Court‟s standard of review requires Mr. Simpson to demonstrate
not only that the trial court‟s order was unreasonable and a miscarriage of justice,
but also that it rises to the level of a “gross miscarriage of justice.” (Resp. at 8-10
(emphasis added).) While Mr. Simpson could meet even that high standard in this
case, the Court should reject the State‟s suggestion that there is some miscarriage
of justice that would not warrant this Court‟s intervention in a capital case.
This Court has certainly never suggested that such a high standard should
apply in the context of direct review of a non-final order in a capital case. Instead,
it has made clear that a pretrial ruling in a capital case departs from the essential
4
requirements of the law when “there has been a violation of a clearly established
principle of law resulting in a miscarriage of justice.” State v. Steele, 921 So. 2d
538, 541 (Fla. 2005); see also Turner v. State, 4 So. 3d 677 (Fla. 2009) (reversing
non-final order in capital post-conviction proceeding without any suggestion that a
gross miscarriage of justice was shown). The case law regarding a “gross
miscarriage of justice” involves the very different posture of second-tier certiorari
review where one appellate court reviews the decision of a lower appellate court.
Sutton v. State, 975 So. 2d 1073, 1081 (Fla. 2008).1 While both standards use the
same “essential requirements of the law” language, applying those relevant
standards should account for the fact that in the second-tier review posture, there
has already been a plenary appeal, while non-final review under Rule 9.142
necessarily involves the only practical appellate review that will ever be had of the
trial court‟s decision in a case literally involving life or death.
IV. The Trial Court Departed From the Essential Requirements of the Law
by Denying Mr. Simpson’s Post-Conviction Counsel and Experts
Meaningful Access to the Physical Evidence.
Although the State begins its argument by addressing why it believes DNA
testing should not be allowed, that puts the cart before the horse. Potential DNA
1 Also misplaced is the State‟s reliance on Nader v. Fla. Dep’t of
Highway Safety & Motor Vehicles, 87 So. 3d 712 (Fla. 2012), for the proposition
that review “cannot be used to create new law where the decision below
recognized the correct general law.” While Mr. Simpson is not arguing for new
law, even if he were, this proposition should not apply to review of non-final
orders that cannot be reviewed on plenary appeal, lest the law stagnate.
5
testing is only one aspect of Mr. Simpson‟s request that his counsel and experts be
allowed to inspect the physical evidence. Indeed, the expert that was prevented
from inspecting the evidence was not even a DNA expert; she is a crime scene
reconstruction expert who needs to review blood spatter and patterns on the bed
linens, furniture, window coverings, and other items collected from the crime
scene. While it is true that her examination may lead to a request that certain blood
spots be tested if she believes they might have come from the assailant as opposed
to the victims, that is only part of her planned review. Right now, counsel and the
expert simply want to review the evidence to determine whether defense counsel
could have had any reasonable basis for not having a crime scene expert review the
evidence to determine how in the world two people could be hacked to death with
an axe by a single murderer who apparently did not get a drop of blood on his shirt
or hat and only a few stray spots on the legs of his pants.
Moreover, even with respect to the evidence for which testing is
contemplated (e.g., the clothing, the hairs found with the clothing, and the scraping
from under the victim‟s nails), the issue is not whether DNA testing should be
allowed at this point. As Mr. Simpson made clear below and in his petition, he
cannot even be sure if testing will be possible. Until his experts are allowed to
actually view and inspect the evidence in a meaningful fashion, he is simply unable
to determine whether the evidence, which has not been properly preserved, has
6
suffered from too much degradation or contamination to be reliably tested. If that
turns out to be the case, then Mr. Simpson will not even be requesting DNA testing
and will simply travel on his due process claim based on the destruction of this
material evidence. Accordingly, this proceeding should focus solely on access to
the evidence and leave the issue of whether any evidence should actually be tested
until that issue can be developed on the facts. The point is that Mr. Simpson is
being prevented from discovering the basic facts about the evidence.
The State disingenuously suggests in its response that Mr. Simpson‟s post-
conviction counsel and experts have not been denied access to the evidence. The
only “access” the State has allowed to the physical evidence in JSO‟s possession is
an inventory of the items in their packaging. Neither counsel nor their experts have
been allowed to actually view what is inside the wrapping. (1 App. 10.) It should
go without saying that viewing the brown paper wrapping of crime scene evidence
is not meaningful access.2
2 The irony in the State‟s contention that its “enduring good faith is
illustrated by its desire to preserve the integrity of the evidence by not simply
trusting the latest defense expert to preserve it,” is palpable. The State, after all,
cleaned the axe prior to trial and mounted it on a cardboard box, sending it back to
the jury room during deliberations along with the clothes used to convict Mr.
Simpson. The axe, the sneakers, and the hat were exposed so that the jurors, bailiff,
and clerk could actually touch them during trial. Similarly, the State took no steps
to have them preserved in any fashion after trial and instead allowed them to just
sit on the shelf in the open air and allowed the critical clothing to sit in a vault with
no climate control. (1 App. 11-13.)
7
And the evidence in the clerk‟s office, including the clothing, needs to be
analyzed in a controlled setting where Mr. Simpson‟s credentialed experts can
properly examine it, as opposed to only being able to take some photographs while
the clerk keeps them in the clerk‟s office with no special protection to prevent
against degradation or cross-contamination. (1 App. 11-13, 71-114.) And the
experts will, of course, have to open the various biological samples to determine
whether testable material remains regarding things like fingernail clippings, hairs,
and swabs.
The State next claims that Mr. Simpson failed to follow up with the
Jacksonville Sheriff‟s Office (“JSO”) after it “tendered its cooperation.” (Resp. 14-
15.) This is both misleading and false. It is misleading because the State is not
quoting from any offer to allow meaningful access to evidence, but instead to an
offer to allow counsel to “inspect … in a supervised manner” certain items that
were missing when counsel was allowed to look at the wrapped up evidence at
JSO‟s warehouse. 3 (Resp. App. C at 2.) Thus, the offer was to simply allow the
same kind of meaningless access counsel was provided to the other items. The
State‟s claim that Mr. Simpson did not follow up is false. His counsel promptly
3 Moreover, this offer was not in response to the motion to inspect the
evidence, but instead in response to a motion to compel production of public
records. (Reply App. 1-10.) Thus, it really has little to do with the issue at hand.
8
followed up by identifying the missing items. (Reply App. 11-15.) To date, JSO
has still not afforded Mr. Simpson the opportunity to inspect this evidence.
The State also claims that at the hearing below, the prosecutor “offered to
make the evidence available as long as it is in an „appropriate setting,‟ ” which
would not be the JSO warehouse. (Resp. at 14.) But this was no offer – the
prosecutor was simply assuming that the court would allow the defense some
access to the evidence and was simply talking about where that would occur. (1
App. 173.) But the trial court immediately responded, “I‟m not sure it should go
anywhere ….” (1 App. 173.)
More importantly, the trial court‟s order expressly denied Mr. Simpson‟s
request to inspect the evidence. (4 App. 660 (denying Mr. Simpson‟s motion as to
the “Request to Allow Inspection and Testing of Physical and Biological
Evidence” (emphasis added)).) Thus, the State‟s suggestion that Mr. Simpson‟s
counsel and experts may inspect the evidence whenever they want should be
accepted as a concession that the trial court‟s order denying them this right is a
miscarriage of justice. Simply put, we would not be in the Supreme Court of
Florida if the State had allowed that which was requested. In any event, the State
offers no reason why defense counsel and their experts should not have meaningful
access to the physical evidence. That should be dispositive.
9
V. The Trial Court Departed From the Essential Requirements of the Law
by Foreclosing Potential Testing of the Evidence.
Again, the issue is not whether any particular evidence should be tested for
DNA at present. The issue is simply whether Mr. Simpson‟s counsel and experts
should have the access to the evidence necessary to determine whether testing is
feasible and, if so, to make a specific request for specific evidence to be subjected
to a specific test. Thus, the only inquiry at present should be whether the current
record demonstrates a good faith basis to believe that potential testing might be
appropriate. The State makes no argument on that point and instead simply argued
why testing should not be ordered based on the current record. But even that
argument is fatally flawed in multiple respects.
A. Like the Trial Court, the State Erroneously Conflates the Rule
3.853 Standard With the Standard That Will Apply to Mr.
Simpson’s IAC and Destruction of the Evidence Claims.
Consistent with the trial court‟s erroneous reasoning, the State devotes
nearly all of its discussion about Mr. Simpson‟s request to evaluate the evidence
for potential DNA testing almost exclusively to the standard for DNA testing under
Rule 3.853. (Resp. 10-14.) In so doing, both the State and the trial court have
simply ignored Mr. Simpson‟s repeated arguments that the Rule 3.853 standard has
no application to evaluating and testing evidence to support Rule 3.851 claims that
trial counsel was ineffective for failing to have the evidence adequately reviewed
and tested before trial. (Pet. 29-33; 3 Pet. App. 433-37.) Simply put, this
10
proceeding simply does not implicate the standards for testing to exonerate a
defendant pursuant to Rule 3.853 and section 924.11, Florida Statutes, or the cases
on which the State relies that interpret that rule and statute – Kelley v. State, 974
So. 2d 1047 (Fla. 2007); Hitchcock v. State, 866 So. 2d 23 (Fla. 2004); Tompkins v.
State, 872 So. 2d 230 (Fla. 2003); Olvera v. State, 870 So. 2d 927 (Fla. 4th DCA
2004). Respectful of the Court‟s order denying consolidation, Mr. Simpson does
not address the Rule 3.853 standards further in this reply and will save his
arguments on that point for the briefing in Case No. SC12-633.4
As argued in the petition, the standard that should apply to a request for
testing to support the Rule 3.851 IAC and due process claims is whether, assuming
Mr. Simpson prevails in proving that his counsel acted deficiently in not having the
evidence tested before trial, there is a reasonable probability that the jury would
have reached a different verdict had defense counsel had the evidence tested. (Pet.
29-33.)
B. Like the Trial Court, the State Misconceives the Nature of Both
the DNA Evidence Offered at Trial and the Evidence Mr.
Simpson Seeks to Develop on Post-Conviction Review.
The State‟s other main opposition to the possibility of further DNA testing is
that “the defense, for its own testing, possessed much of the State‟s evidence for
4 Ironically, the State opposed Mr. Simpson‟s motion to consolidate this
case with Case No. SC12-633 because the proceedings involve different standards
and “consolidation may confuse or blur the two proceedings.” (SC12-633 State‟s
Resp. ¶ 3, May 24, 2012.)
11
over two years prior to the trial in this case.”5 (Resp. at 10, 23.) This misses the
point entirely. The whole point of Mr. Simpson‟s post-conviction efforts to
evaluate and potentially test the evidence for DNA is to support his claim that
defense counsel was ineffective in how he handled this evidence.
Mr. Simpson has proffered the testimony of Charlotte Word, the DNA
expert retained on behalf of the defense before trial, that defense counsel never
communicated the relevant circumstances of the offense or defense theory to her
and that if he had done so, she would have recommended further analysis and
testing. (3 App. 437-42, 445, 564-81, 594-95, 625-26.) Indeed, defense counsel
affirmatively misrepresented the facts to her by falsely advising that Mr.
Simpson‟s DNA had been found on the victims‟ sheets and a t-shirt found at the
scene. (3 App. 571.)
She was never told that Mr. Simpson admitted that the clothes belonged to
him, so she mistakenly believed that finding DNA belonging to Mr. Simpson on
the clothing would be incriminating. (3 App. 569-71.) Because she concluded that
the State‟s testing correctly found the presence of his DNA on the clothing, she
reasonably concluded that further testing could only confirm that fact. Similarly,
she did not know that Mr. Simpson had loaned black clothing just like the clothing
5 To be clear, the only evidence that was provided to the defense for
analysis before trial was the clothing, hat, shoes, and axe. The material collected at
the crime scene was never provided to the defense.
12
at issue to a suspect with motive and opportunity and therefore that the focus of her
efforts should be not on disproving that Mr. Simpson‟s DNA was on the clothes,
but on determining who matched the DNA found on the clothes that did not belong
to Mr. Simpson. (3 App. 569-71.) Thus, the fact that she did not recommend
further testing before trial out of a concern that it would only confirm Mr.
Simpson‟s DNA was on the clothing does not undermine, but actually supports Mr.
Simpson‟s IAC claim.
The State repeatedly suggests that “the defense” had the evidence tested for
DNA before trial. (Resp. at 11, 19-20.) But not only is there no evidence that
defense counsel or anyone other than the State ever had testing done, the evidence
is uniformly to the contrary. (3 App. 446 ¶ 11, 3 App. 538, 568.) The State‟s
suggestion that it will be able to “determine the results of the defense DNA
examinations” once the stay is lifted is particularly perplexing and troubling
because the DNA laboratory that had the subject evidence has already disclosed its
file to the State, so the State well knows that no DNA testing was ever conducted
for the defense. One of main points of Mr. Simpson‟s IAC claims regarding DNA
testing is that testing should have been done, but was not.
C. This Proceeding Does Not Present Any Frye Issues.
The State also argues that Mr. Simpson bore the burden of proving that the
results of the contemplated DNA tests would be admissible under Frye v. United
13
States, 293 F. 1013 (D.C. Cir. 1923). (Resp. at 11, 17-20.) This argument is
premature because at this point, Mr. Simpson is not even sure exactly what items
he will seek to have tested or the kind of test that will be appropriate; that can only
be determined after his experts are allowed to evaluate the evidence. Moreover, the
argument ignores the trial court‟s ruling that Mr. Simpson met the second prong of
Rule 3.853 that “the results of the testing would be admissible at trial.” (4 App.
652.)
D. Like the Trial Court, the State Misconstrues Mr. Simpson’s
Discussion of His Post-Conviction Claims and the Fundamental
Weaknesses in the State’s Case at Trial.
The State devotes the last third of its response to defending the supposed
strength of its case at trial and contending that Mr. Simpson has not yet proven his
various post-conviction claims. This misses the entire point of the relevance of the
evidence presented at trial and Mr. Simpson‟s post-conviction claims.6 This
proceeding is not one to determine whether the jury should have acquitted Mr.
Simpson or whether he will prevail on his post-conviction claims. Those are issues
for another day after discovery, a hearing under Huff v. State, 622 So. 2d 982 (Fla.
1993), and an evidentiary hearing. Instead, the issue presented in this proceeding is
whether Mr. Simpson is to be given the most basic of discovery rights – the ability
6 Ironically, in going over the evidence that it contends supports Mr.
Simpson‟s conviction, the State listed much of the evidence that it is preventing
Mr. Simpson‟s counsel and experts from reviewing, including the clothing and the
victims‟ pager. (Response at 18.)
14
to inspect the evidence the State collected from the crime scene and the clothes it
found several days later. Accordingly, while Mr. Simpson strongly disputes the
State‟s characterization of the evidence and arguments at trial, he will not go “tit
for tat” in this reply.7
Mr. Simpson‟s recitation in his petition of the basic trial facts and his claims
for relief were merely designed to explain why the evidence sought is relevant and
material to his very detailed claims. This is no “fishing expedition” in search of
potential claims to raise; it is a good faith attempt by post-conviction counsel to do
their job in developing the evidence supporting several very serious claims they
have already pled to spare an innocent client the death penalty.
The State will certainly get its chance to make its best case why, despite the
combined effect of any constitutional violations Mr. Simpson may prove,8 it
believes that confidence in this capital conviction is not undermined. But its task in
7 Mr. Simpson‟s initial brief in Case No. SC12-633 will demonstrate
the likelihood of acquittal had the jury been presented with evidence of Little
Archie‟s DNA under one of the victim‟s fingernails or on the clothes found near
the murder scene and containing spots of the victims‟ blood. Suffice it to say that
such evidence combined with Little Archie‟s denial that he ever wore the clothes
and the undisputed evidence that he threatened to kill the victims and their unborn
child and that he was present at the scene within an hour of the murders should
meet any reasonable standard. 8 The State‟s suggestion on page 17 that different kinds of
constitutional violations, such as IAC and Brady claims, cannot be viewed on a
cumulative basis is foreclosed by this Court‟s precedent. Suggs v. State, 923 So. 2d
419, 441 (Fla. 2005); Lightbourne v. State, 742 So. 2d 238, 246-48 (Fla. 2005);
State v. Gunsby, 670 So. 2d 920, 924 (Fla. 1995).
15
this proceeding was to show that the trial court reasonably denied Mr. Simpson‟s
counsel and experts any meaningful access to the evidence. Because it has failed to
do that, the Court should have no trouble finding a departure from the essential
requirements of the law.
VI. The State Does Not Explain How an Appeal From the Final Order on
the 3.851 Motion Could Provide an Adequate Remedy.
The remaining prong Mr. Simpson must prove to obtain a reversal is that the
ability to appeal from any final order denying his Rule 3.851 motion would not be
an adequate remedy. The only statement the State makes about this is that Mr.
Simpson “overlooks the availability of appeal from the trial court‟s final
postconviction order.” (Resp. at 24.) But he did not overlook that in his petition;
Part III of his petition explains exactly why a plenary appeal is not an adequate
remedy and provides citations to numerous cases as well as scholarly explanations
by Judges Padovano and Altenbernd. (Pet. 42-44.) The State makes no attempt to
distinguish those authorities or to explain how a plenary appeal can remedy the
denial of the most basic discovery required to develop Mr. Simpson‟s claims.
Accordingly, this Court should reverse the trial court‟s non-final order.
Sonya Rudenstine
Florida Bar No. 711950
Respectfully submitted,
John S. Mills
Florida Bar No. 0107719
16
204 W. University Avenue, Suite 5
Gainesville, Florida 32601
(352) 374-0604
(352) 374-4666 facsimile
Andrew D. Manko
Florida Bar No. 018853
[email protected] (secondary)
The Mills Firm, P.A.
203 North Gadsden Street, Suite 1A
Tallahassee, Florida 32301
(850) 765-0897
(850) 270-2474 facsimile
Attorneys for Petitioner
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished to the following persons by email on September 18, 2012:
Stephen R. White
Assistant Attorney General
Mark Caliel
Assistant State Attorney
Hon. Charles W. Arnold, Jr.
Circuit Judge
Attorney
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that the foregoing brief is in Times New Roman 14-
point font and complies with the font requirements of Rule 9.210(a)(2), Florida
Rules of Appellate Procedure.
Attorney