1Notes of the telephonic hearing were taken by Orange County Official Court Reporter Bobby Timms.IN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, IN AND FOR BRADFORD COUNTY, FLORIDA
THOMAS H. PROVENZANO,
vs. CASE NO.: 99-286CFA
STATE OF FLORIDA,
THIS MATTERcame before the Court on October 7, 1999, for a telephonic hearing
regarding certain issues that have arisen in this matter.1 Appearing at the hearing on behalf of
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
herebyORDERED and ADJUDGED that:
1) The hearing in this matter will begin on Monday, October 11, 1999, as previously
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.
DONEand ORDERED on this 7th day of October, 1999.
_S/___________________________ E. RANDOLPH BENTLEY Senior Judge FSC Order 2000R-285
CERTIFICATE OF SERVICE
I HEREBY CERTIFYthat on this 7th day of October, 1999, the original of this Order was furnished by Federal Express, and that a copy of this Order was transmitted by facsimile transmission to the Honorable Ray Norman, Clerk of Court, Bradford County, 945 N. Temple Avenue, Starke, Florida 32091, fax # (904) 964-4454; and that a true and correct copy of the foregoing was furnished by U.S. mail and facsimile transmission to:
1)Carol M. Dittmar, Assistant Attorney General, Westwood Center, Suite 700, 2002 North Lois Avenue, Tampa, Florida 33607-2366, fax (813) 871-7834;
2)John Moser, Capital Collateral Regional Counsel, and Michael P. Reiter, Chief Assistant CCRC, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619, fax (813) 740- 3554; and
3)Tanya Carroll, Deputy Clerk Capital Cases, Supreme Court of Florida, Supreme Court Building, 500 South Duval Street, Tallahassee, Florida 32399-1925, fax (850) 488-2100.
__S/__________________________ Senior Trial Court Staff Attorney Ninth Judicial Circuit Court