THOMAS H. PROVENZANO,

Plaintiff,

vs. CASE NO.: 99-286CFA

STATE OF FLORIDA,

Defendant. _______________________________/

Plaintiff, Thomas Harrison Provenzano, were Michael Reiter, Chief Assistant Capital Collateral

Regional Counsel - Middle Region, and John Moser, Capital Collateral Regional Counsel -Middle

Region. Appearing on behalf of the State were Carol Dittmar, Kenneth Nunnelley, and

Carolyn Snurkowski, Assistant Attorneys General.

Provenzano’s counsel requested the telephonic hearing so that they could notify the Court of

the possible unavailability of one of their witnesses, Dr. Henry Dee. Dr. Dee apparently

underwent abdominal surgery in the very recent past, and has suffered complications which

necessitate that he undergo additional surgery. At the hearing, Provenzano’s counsel agreed to

try to obtain some information from Dr. Dee or one of Dr. Dee’s doctors regarding Dr. Dee’s

anticipated rate of recovery and the date on which he may be well enough to testify in this matter.

Page 2 of 4 Because of these unforseen complications and the present uncertainty as to Dr. Dee’s rate of

recovery, it appears at this time that Dr. Dee may not be available to testify at the hearings in this

matter which are scheduled for next week.

Despite Dr. Dee’s possible unavailability, Provenzano’s counsel agreed to proceed with the

hearing next week. Provenzano’s counsel requested, however, in the event that Dr. Dee is not

available next week, that the Court continue the matter to a later date so that Dr. Dee’s testimony

may be taken. The State did not object to proceeding with the hearing next week and taking Dr.

Dee’s testimony at a later date. But, the State indicated that since Dr. Patricia Fleming is

available and scheduled to testify next week, her testimony should be taken at that time.

The Court does not question the circumstances surrounding Dr. Dee’s possible unavailability,

and is willing to proceed with the hearing next week, and thereafter hold the hearing open until

Monday, October 18, 1999, if Dr. Dee will be available on October 18, 1999. However, the

Court is not available to hold further proceedings in this matter at any time from October 19,

1999, until the middle of November 1999, and would prefer to not take the testimony of one

witness a month apart from the time that the testimony of the other witnesses is taken. But, the

Court appreciates that Dr. Fleming is available next week and that she will be traveling from

Wyoming to testify in this matter. Therefore, the hearing will begin at 9:00 a.m. on Monday,

October 11, 1999, and, at the very least, the Court will take the testimony of Dr. Fleming. After

being advised of Dr. Dee’s anticipated rate of recovery, the Court will determine precisely when

to proceed with the remainder of the proceedings.

At the telephonic hearing, the State raised its concern that it has not yet received from

Page 3 of 4 Provenzano’s counsel a witness list that indicates which Department of Corrections employees

would be called by Provenzano’s counsel to testify at next week’s hearing. After discussion on

this issue, Provenzano’s counsel indicated their intent to add Rose Valdez, Investigator for the

Office of Capital Collateral Regional Counsel - Middle Region, to Provenzano’s witness list.

Further, it was agreed upon by both parties that the names of all witnesses would be exchanged

between the parties no later than 3:00 p.m., Friday, October 8, 1999.

Additionally, the State voiced its concern that Dr. Henry Lyons is listed on Provenzano’s

witness list, but the State has not been advised as to whether Dr. Lyons has recently seen

Provenzano. Further, the State inquired as to whether Dr. Lyons has prepared a report setting

forth his findings resulting from any recent visit he may have had with Provenzano. In response,

Provenzano’s counsel indicated that Dr. Lyons did in fact see Provenzano approximately one and

one-half weeks ago, but that Dr. Lyons has not provided Provenzano’s counsel with a report.

After discussion on this issue, Provenzano’s counsel agreed to provide any report that they

receive from Dr. Lyons to the State upon receipt thereof.

Based upon the foregoing and the remainder of the discussions at the telephonic hearing, it is

1) The hearing in this matter will begin on Monday, October 11, 1999, as previously

scheduled.

2) At that time, the Court will take the testimony of Dr. Fleming. After being advised of Dr.

Dee’s anticipated rate of recovery and date on which he may be able to testify, the Court will

determine whether to continue with the proceedings or whether it will be necessary to re-schedule

them to a later date.

3) Both parties shall exchange final witness lists no later than 3:00 p.m., Friday, October 8,

Page 4 of 4 1999.

_S/___________________________ E. RANDOLPH BENTLEY Senior Judge FSC Order 2000R-285

__S/__________________________ Senior Trial Court Staff Attorney Ninth Judicial Circuit Court