IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR BRADFORD COUNTY, FLORIDA

THOMAS H. PROVENZANO,

Plaintiff,

vs. CASE NO.: 99-286CFA

STATE OF FLORIDA,

Defendant. _______________________________/

opinion and mandate of the Supreme Court of Florida in Provenzano v. State, 24 Fla. L. Weekly

S434 (Fla. Sept. 23, 1999), for proceedings regarding Plaintiff, Thomas Harrison Provenzano’s

competency to be executed. Provenzano was present at the hearing with his counsel, Michael P.

Reiter, Chief Assistant Capital Collateral Regional Counsel - Middle Region. Appearing on behalf

of the State were Carol Dittmar, Kenneth Nunnelley, and Carolyn Snurkowski, Assistant

Attorneys General.

During the hearing, it was learned that Henry Dee, M.D., a psychiatrist who recently

examined Provenzano and whom Provenzano intended to call as a witness, recently underwent

surgery. It was further learned that Dr. Dee remains hospitalized and suffers from a major illness,

and that he will not be medically able to testify in this matter, either live or by deposition, for at

least three weeks.

Since Provenzano’s counsel asserted that Dr. Dee is a vital witness for Provenzano’s case, the

Court found, and ordered in a separate written order, that in order to effectuate a just resolution

Page 2 of 4 of this matter, these proceedings must be continued for one month, until November 15, 1999, to

either allow enough time for Dr. Dee to be well enough to provide testimony in this matter, or to

afford Provenzano the opportunity to obtain another expert witness in the event that Dr. Dee is

not able to provide testimony.

After that determination had been made, and before this segment of the proceedings had

concluded, Provenzano orally requested that the Court issue a transport order which orders the

Florida Department of Corrections to transport him to a facility so that he may undergo a positron

emission tomography scan, or "PET" scan. After considering the State’s concerns and objections

to Provenzano’s request, the Court orally ordered that a transport order would be issued subject

to certain conditions discussed at the hearing. However, the Court admonished counsel that this

matter would not be continued beyond November 15, 1999, unless the interests of justice so

require.

1) Once the PET scan is performed on Provenzano, Provenzano’s counsel shall promptly

provide the State with the following:

a) any radiologic films or test reports generated as a result of Provenzano’s PET scan;

b) the names and addresses of any individuals to whom Provenzano’s PET scan films or

test reports are sent for reading and/or interpretation;

c) information regarding any database used for comparison in the process of generating

opinions regarding the results of Provenzano’s PET scan;

d) the manufacturer and model number of the machine used to conduct the PET scan on

Provenzano;

Page 3 of 4 e) if a database of results of PET scans performed on other individuals is used for

comparison with the results of the PET scan performed on Provenzano, the manufacturers and

model numbers of the machines used to perform the PET scans on the individuals who comprise

the database;

f) information regarding the calibration of the machine used to perform Provenzano’s

PET scan; and

g) information regarding the calibration of the machines used to perform the PET scans

on the individuals who comprise the database used for comparison with Provenzano’s PET scan.

Circuit Court a memorandum of law regarding the applicability of the rules of evidence and the

admissibility of a PET scan under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) in this type

of proceeding. Copies of said memoranda of law shall be faxed to the Court in care of Erin J.

O’Leary, Senior Staff Attorney for the Ninth Judicial Circuit Court.

_/S___________________________ E. RANDOLPH BENTLEY Senior Judge FSC Order 2000R-285

Page 4 of 4 foregoing was furnished by U.S. mail to:

_/S___________________________ Senior Trial Court Staff Attorney Ninth Judicial Circuit Court