TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 13

Agan v. State,

560 So.2d 222 (Fla. 1990) ................ 6

723 So.2d 163 (Fla. 1998) . . . . . . . . . . . 1, 2, 4, 7, 8

Bell v. Lynaugh,

858 F.2d 978 (5th Cir. 1988) ............... 3

Buenoano v. State,

708 So.2d 941 (Fla. 1998) ............... 6, 7

Demps v. State,

515 So.2d 196 (Fla. 1987) ................ 6

Sims v. Florida,

467 U.S. 1246 (1984) ................... 4

Sims v. Florida,

503 U.S. 1065 (1993) ................... 4

Sims v. Moore,

No. 98-9020 (June 21, 1999) ............... 5

Sims v. Singletary,

155 F.3d 1297 (11th Cir. 1998) .............. 5

Sims v. State,

444 So.2d 922 (Fla. 1983) ................ 4

Sims v. State,

602 So.2d 1253 (Fla. 1992) ................ 4

Zeigler v. State,

632 So.2d 48 (Fla. 1993), cert. denied, 513 U.S. 830,

115 S.Ct. 104, 130 L.Ed.2d 52 (1994) ........... 6

§ 119.07(8), Fla. Stat. (1998) . . . . . . . . . . . . . . . . 7

§ 119.19, Fla. Stat. (1998) ........... 5, 7, 8, 10

§ 119.19(8)(e), Fla. Stat. (1998) ......... 9, 10, 12

Fla. R. App. P. 9.140(b) . . . . . . . . . . . . . . . . . . . 8

Fla. R. App. P. 9.130(a)(3) ................ 4

Fla. R. App. P. 9.300 . . . . . . . . . . . . . . . . . . . . 8

Fla. R. Crim. P. 3.850 . . . . . . . . . . . . . . 2, 3, 5, 6

Fla. R. Crim. P. 3.850(b)(1) ................ 5

Fla. R. Crim. P. 3.852 .............. 7, 8, 10, 11

Fla. R. Crim. P. 3.852(a)(2) ................ 9

Fla. R.Crim. P. 3.852(h) .................. 11

Fla. R. Crim. P. 3.852(h)(3) ......... 8, 9, 10, 11, 12

1

The records requested also included requests for information

relating to the "Dixie Mafia" and the "Drugstore Cowboys", for a

total of 53 separate requests. Some individuals were identified

only by name.

execution of Sims' sentence of death. Execution is scheduled for

October 26, 1999. This Court entered an order directing that any

Circuit Court proceedings be expedited and scheduling oral

argument for October 19, 1999.

On or about September 29, 1999, Sims filed 23 public

records requests which were directed to numerous agencies and

individuals. The vast majority of those requests were for

information on 51 individuals, many of whom were identified only

61 separate demands.

On October 5, 1999, a status conference was held by

Seminole County Circuit Judge O. H. Eaton. At the conclusion of

the conference, Judge Eaton directed that Sims file any

successive Florida Rule of Criminal Procedure 3.850 motion by

5:00 PM on October 11. The Judge further ordered that any

hearing or hearings would be conducted on October 15, and, if

2

These time limits were contained in an order issued on October 6,

1999.

3

This statement in the order refers to the October 8, 1999, hearing.

During that hearing, Sims' counsel made numerous statements that

referred to the "investigation" of Sims' case that is allegedly

"ongoing" at this time.

4

Sims made one request for public records during the previous Rule

3.850 litigation. That request, which was directed to the Seminole

County State Attorney's Office, is dated April 24, 1990, and is

attached hereto as appendix A.

Court held a hearing to deal with the objections to production

of public records filed by two of the affected agencies.

On October 11, 1999, Sims filed a motion to compel production of

public records and a motion to modify the scheduling order. On

October 12, 1999, Judge Eaton entered an order finding, inter

alia, that "the demand for public records is nothing more than

an eleventh hour attempt to delay the execution rather than a

focused investigation into some legitimate area of inquiry."

investigated by the defense before trial, was investigated again

that there has been no action in the circuit court since October

20, 1992. Id. The Circuit Court went on to find that, even if it

is true that changes to Florida Rule of Criminal Procedure 3.852

prevented him from seeking public records after October 1, 1998,

5

The notice of appeal asserts that the orders appealed from

"foreclose Mr. Sims' rights to post-conviction public records

discovery, and to file post-conviction habeas corpus pleadings."

6

The "Response" asserts that the Circuit Court's orders "forbid" him

from filing a rule 3.850 motion after 5:00 PM on October 13, 1999.

Such language (or its equivalent) appears nowhere in any order

entered by that Court. Likewise, that pleading indicates that Sims

has "filed all the motions he could file" in the Circuit Court.

Motion, at 2 [emphasis added]. The obvious meaning of that

statement is that he lacks a good faith basis for a Rule 3.850

fishing expedition in the hope of gaining a stay by playing chicken

with the Court. See, Bell v. Lynaugh, 858 F.2d 978, 985-86 (5th

Cir. 1988).

7

The certificate of service on that response certifies that the

pleading was served on October 11, 1999. That cannot be correct

because the order appealed from was not entered until October 12,

that does not explain why there were no public records requests

made prior to that date. Id., at 3. The Circuit Court denied

Sims' motion to compel, and extended the time for filing a

successive collateral attack motion until 5:00 PM on October 13,

1999. Id., at 4. On October 13, 1999, Sims gave notice of appeal

October 13, 1999, the State filed a motion to dismiss that

appeal as being an unauthorized interlocutory appeal of a non-final

to dismiss that was received by counsel for the State well after

the close of business on October 14, 1999, and after this Court

had established a schedule for briefing and oral argument on the

1999, and the notice of appeal was not filed until October 13,

1999.

8

The State does not waive the procedural defenses asserted in the

motion to dismiss this appeal. This appeal is not authorized by any

Rule of Appellate Procedure. See, Fla. R.App.P. 9.300, 9.140(b),

9.130(a)(3). The proper vehicle for review of the complained-of

orders is an appeal from a final order denying rule 3.850 relief.

See, e.g., Davis v. State 24 FLW S345 (Fla., July 1, 1999).

9

Of course, the conviction and sentence have been subject to a

presumption of validity since this court issued its direct appeal

opinion in 1983.

the denial of relief under Florida Rule of Criminal Procedure

3.850 in 1992. Sims v. State, 602 So.2d 1253 (Fla. 1992). Sims'

petition for writ of certiorari was denied in 1993. Sims v.

Florida, 503 U.S. 1065 (1993). Sims' federal habeas corpus

proceeding concluded in 1998, when the Eleventh Circuit Court of

Appeals reversed the order of the District Court granting

penalty phase relief, and affirmed the conviction and sentence

in all respects. Sims v. Singletary, 155 F.3d 1297 (11th Cir.

1998). The United States Supreme Court denied certiorari on June

21, 1999. Sims v. Moore, No. 98-9020 (June 21, 1999).

As the foregoing procedural history of the case

demonstrates, Sims' conviction and sentence has been in

act has been available to Sims at all times relevant, and, in

fact, Sims filed one demand for public records in connection

with the 1990 Rule 3.850 motion. See, Appendix A. One of Sims’

present attorneys, Steven Malone, represented Sims at that time.

Sims cannot now claim that he was unaware of Chapter 119, and,

because that is so, further litigation is time-barred as he has

failed to exercise due diligence.

In Buenoano, this Court resolved the identical issue:

9

Of course, the conviction and sentence have been subject to a

presumption of validity since this court issued its direct appeal

opinion in 1983.

the denial of relief under Florida Rule of Criminal Procedure

3.850 in 1992. Sims v. State, 602 So.2d 1253 (Fla. 1992). Sims'

petition for writ of certiorari was denied in 1993. Sims v.

Florida, 503 U.S. 1065 (1993). Sims' federal habeas corpus

proceeding concluded in 1998, when the Eleventh Circuit Court of

Appeals reversed the order of the District Court granting

penalty phase relief, and affirmed the conviction and sentence

in all respects. Sims v. Singletary, 155 F.3d 1297 (11th Cir.

1998). The United States Supreme Court denied certiorari on June

21, 1999. Sims v. Moore, No. 98-9020 (June 21, 1999).

As the foregoing procedural history of the case

demonstrates, Sims' conviction and sentence has been in

act has been available to Sims at all times relevant, and, in

fact, Sims filed one demand for public records in connection

with the 1990 Rule 3.850 motion. See, Appendix A. One of Sims’

present attorneys, Steven Malone, represented Sims at that time.

Sims cannot now claim that he was unaware of Chapter 119, and,

because that is so, further litigation is time-barred as he has

failed to exercise due diligence.

In Buenoano, this Court resolved the identical issue:

we are presented with Buenoano's third motion for

postconviction relief, clearly filed outside the time

limitation of rule 3.850(b). As explained above,

before Buenoano could be entitled to relief based on

any claim she might raise as a result of her public

records requests, in this otherwise procedurally

barred motion, she must establish that the facts on

which the claim is based were unknown to her or her

attorney and could not have been ascertained by the

use of due diligence. See Fla. R. Crim. Pro.

3.850(b)(1); Mills.

The Public Records Act has been available to Buenoano

since her conviction; but most of the records she

alleges were not disclosed prior to the filing of her

latest rule 3.850 motion were not requested until

January 1998, or later. Some of the records were

requested in January 1997, but Buenoano did not seek

to compel compliance with those requests until

February 1998. Buenoano has not alleged that through

the exercise of due diligence she could not have made

these requests within the time limits of rule 3.850.

Accordingly, she is precluded from asserting that the

trial court should have addressed her public records

requests prior to denying her third rule 3.850 motion.

Cf. Zeigler v. State, 632 So.2d 48 (Fla. 1993)

(finding that rule 3.850 bars as untimely a motion

based on information obtained as a result of a chapter

119 public records request made after the cut-off date

for postconviction relief), cert. denied, 513 U.S.

830, 115 S.Ct. 104, 130 L.Ed.2d 52 (1994); Agan v.

State, 560 So.2d 222 (Fla. 1990) (same); Demps v.

State, 515 So.2d 196 (Fla. 1987) (same).

Buenoano v. State, 708 So.2d 941, 952-53 (Fla. 1998).

Sims has not alleged that he could not have made his public

records requests within the time limitations of Rule 3.850, and

cannot do so in good faith because he did, in fact, seek public

records at the time of his initial Rule 3.850 motion. Sims has

had his opportunity to seek public records, and, under settled

law, may not now institute a wide-spread public records

10

Sims' Notice of Appeal filed in this Court refers to the public

records as part of the "discovery" in this case. At no time has

Sims ever alleged that his "requests" will produce newly discovered

evidence. During the hearing on October 8, 1999, Sims' counsel made

numerous references to the "investigation" of the case.

"investigation". The motion to compel was properly denied.

Further, because any Rule 3.850 motion will be a successive

collateral attack on a presumptively valid conviction and

sentence, it makes no sense to argue, as Sims does, that he is

entitled to some sort of relief based upon the denial of his

motion to compel production of public records, especially when,

as in this case, Sims has not even alleged that the public

records at issue will result in "newly discovered evidence." In

Buenoano, this Court stated, in the same context:

Buenoano's eleventh-hour public records requests and

resulting litigation are insufficient to justify a

stay of execution, particularly where she has not

discovered evidence. Moreover, we will deny relief

sought in further appeals regarding public records

requests unless Buenoano establishes that she could

not have timely sought production of the documents or

that the documents were previously requested but

unlawfully withheld.

Buenoano v. State, 708 So.2d at 953 [emphasis added].

Sims' case is no different, and, in fact, throughout his

filings, Sims refers to public records requests as being a part

of the investigation of his case. See, e.g., Notice of Inability

investigated at least twice, and to seek to initiate expansive

11

Of course, Chapter 119 expressly provides that public records

litigation is not to be used as a basis for delay. Fla. Stat., §

119.07(8).

12

The related statutory provision, § 119.19, also took effect on

October 1, 1998. Nothing prevented Sims from seeking public records

in the years preceeding that date.

public records discovery only after a death warrant has been

issued is, as the trial court found, a deliberate attempt to

denial of the motion to compel.

Moreover, to the extent that Sims may argue that Florida

Rule of Criminal Procedure 3.852(h)(3) precluded him from making

a request for public records until his death warrant was signed,

the true facts are that that provision of Rule 3.852 did not

Public Records Production) and Rule 3.993 (Related Forms), 723

So.2d 163 (Fla. 1998). It is disingenuous to suggest that,

because of Rule 3.852, Sims could not have sought public records

until his death warrant was signed. The record demonstrates that

Sims was aware of the availability of public records "discovery"

in 1990, and that he took advantage of Chapter 119 at that time.

No provision of Florida law limited or foreclosed any

opportunity to Sims, and he should not be heard to complain.

Whatever the effect of Rule 3.852(h)(3) was, it did not prevent

13

The trial court pointed out that even if changes to the rules did

prevent Sims from seeking public records from October 1, 1998 until

July 1, 1999, that did not explain why such requests were not made

before October 1, 1998. Order, at 3. As the court likewise found,

no explaination is offered for Sims' failure to request relief from

the procedural rule if it in fact prevented him from seeking

production of relevant records. Id.

In the July 1, 1999, Opinion of this Court which adopted

Rule 3.852, this Court expressly stated that the rule was

amended in light of the enactment of Section 119.19 during the

1998 legislative session. That statutory provision provides as

follows with respect to public records demands after a death

warrant is issued:

(e) If, on the date that this statute becomes

effective, the defendant has had a Rule 3.850 motion

denied and no Rule 3.850 motion is pending, no

additional requests shall be made by capital

collateral regional counsel or contracted private

counsel until a death warrant is signed by the

Governor and an execution is scheduled. Within 10

days of the signing of the death warrant, capital

collateral regional counsel or contracted private

counsel may request of a person or agency that the

defendant has previously requested to produce records

any records previously requested to which no objection

was raised or sustained, but which the agency has

received or produced since the previous request or

which for any reason the agency has in its possession

and did not produce within 10 days of the receipt of

the previous notice or such shorter time period

ordered by the court to comply with the time for the

scheduled execution. The person or agency shall

produce the record or shall file in the trial court an

affidavit stating that it does not have the requested

record or that the record has been produced

previously.

§ 119.19(8)(e), Fla. Stat. (1998) [emphasis added].

14

Under Rule 3.852(h)(3), Sims is allowed to seek the documents

specified therein from the Seminole County State Attorney's Office.

As the emphasized portion of the statute expressly states,

a defendant may not initiate first-time record requests after a

death warrant is issued. Instead, such "under warrant" requests

are expressly limited to agencies from which the inmate has

previously requested public records.

Rule 3.852(a)(2) expressly provides that "this rule shall

not be a basis for renewing requests that have been initiated

the State Attorney in Seminole County, and, under the rule, is

not allowed to renew a request to that agency. Further, to the

extent that further discussion of the "warrant provision" is

necessary, Rule 3.852(h)(3) (as amended July 1, 1999) also

precludes first-time public records discovery after a death

warrant is signed. That rule reads, in pertinent part, as

follows:

Within 10 days of the signing of a defendant's death

warrant, collateral counsel may request in writing the

production of public records from a person or agency

records. A person or agency shall copy, index, and

deliver to the repository any public record:

(A) that was not previously the subject of an

objection;

(B) that was received or produced since the previous

request; or

15

Of course, the purpose of Rule 3.852 is to effectuate the

legislative enactment.

16

The use of the past tense "requested" is appropriate only if an

earlier request for records was made.

(C) that was, for any reason, not produced previously.

. . . If none of these circumstances exist, the person

or agency shall file with the trial court and the

parties an affidavit stating that no other records

exist and that all public records have been produced

previously.

[emphasis added].

Rule 3.852 is premised, by its plain language, on the

existence of a prior request for public records, as the statute

introductory portion of this rule is consistent with the statute

itself, with Rule 3.852 in general, or with the sub-parts of

Rule 3.852(h)(3). The portion of the rule emphasized above

leaves no doubt that public records discovery after the issuance

of a death warrant is limited to agencies from which counsel has

previously requested records. The phrase "from which collateral

counsel requested records" can have no other meaning, both by

The sub-parts of Rule 3.852(h)(3) are likewise premised on

a prior request. Obviously, a record cannot have "previously"

been the subject of an objection unless there was a prior

request for it (sub-part A), nor can a record have been

17

To the extent that Sims may argue that this provision allows him to

make first-time requests under Rule 3.852(h), that would require

sub-part C to be interpreted to include, as a part of the "for any

reason" component, the absence of a prior request. Such an

interpretation of sub-part C would, quite literally, allow that

exception to swallow the entire rule, and make the purpose of Rule

3.852, which is to bring order to the public records process in

capital cases, wholly meaningless.

"received or produced since the previous request" unless there

was such a prior request (sub-part B). Likewise, sub-part C

requires a prior request, because it refers to records that were

"not produced previously". That condition precedent cannot be

Finally, the concluding portion of Rule 3.852(h)(3)

contains the following language: "[i]f none of these

circumstances exist, the person or agency shall file with the

trial court and the parties an affidavit stating that no other

records exist and that all public records have been produced

previously." [emphasis added]. The "produced previously"

language would not be appropriate unless a prior request for

public records was required. When Rule 3.852(h)(3) is read

fairly, and in pari materia with the statute, it clearly limits

under-warrant public records discovery to agencies that have

previously been the recipients of such demands. It does not

allow a capital defendant to file initial public records

requests after a death warrant has been signed and seek public

records from sources which have not been the object of prior

17

To the extent that Sims may argue that this provision allows him to

make first-time requests under Rule 3.852(h), that would require

sub-part C to be interpreted to include, as a part of the "for any

reason" component, the absence of a prior request. Such an

interpretation of sub-part C would, quite literally, allow that

exception to swallow the entire rule, and make the purpose of Rule

3.852, which is to bring order to the public records process in

capital cases, wholly meaningless.

"received or produced since the previous request" unless there

was such a prior request (sub-part B). Likewise, sub-part C

requires a prior request, because it refers to records that were

"not produced previously". That condition precedent cannot be

Finally, the concluding portion of Rule 3.852(h)(3)

contains the following language: "[i]f none of these

circumstances exist, the person or agency shall file with the

trial court and the parties an affidavit stating that no other

records exist and that all public records have been produced

previously." [emphasis added]. The "produced previously"

language would not be appropriate unless a prior request for

public records was required. When Rule 3.852(h)(3) is read

fairly, and in pari materia with the statute, it clearly limits

under-warrant public records discovery to agencies that have

previously been the recipients of such demands. It does not

allow a capital defendant to file initial public records

requests after a death warrant has been signed and seek public

records from sources which have not been the object of prior

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the above 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, on this day of October, 1999.

Of Counsel