THOMAS H. PROVENZANO,

Plaintiff,

vs. CASE NO.: 99-286CFA

STATE OF FLORIDA,

Defendant. _______________________________/

Granting Access to Defendant to Conduct Mental Status Examinations, which was faxed to the

undersigned judge on September 28, 1999. On October 1, 1999, the Court held a telephonic

John Moser, Capital Collateral Regional Counsel - Middle Region, and Michael Reiter, Chief

Assistant Capital Collateral Regional Counsel - Middle Region. The State was represented by

Carol M. Dittmar, Carolyn Snurkowski, and Kenneth Nunnelley, Assistant Attorneys General.

The Florida Department of Corrections ("DOC") was represented by Sheron Wells, Assistant

In its Motion, the State requests an order: (1) permitting the State’s mental health experts Dr.

Alan Waldman and/or Dr. Harry McClaren access to Provenzano for purposes of conducting

Page 2 of 6 competency evaluations of Provenzano, and (2) directing Provenzano to cooperate with the

State’s experts.

Although he did not file a written objection to the State’s Motion, at the hearing Provenzano

objected to the State’s Motion on grounds which included the argument that nothing in Florida

Rule of Criminal Procedure 3.812 permits the State to conduct its own examination of a

prisoner’s mental capacity for purposes of determining whether the prisoner is competent to be

executed. Provenzano did, however, acknowledge that subsection (c)(3) of rule 3.812 permits

the Court to "enter such other orders as may be appropriate to effectuate a speedy and just

resolution of the issues raised." See Fla. R. Crim. P. 3.812(c)(3).

Concluding that the interest of justice requires that the mental status examinations of

Provenzano presented by the State and by Provenzano be relative in time to one another, and

concluding that the opinion and mandate of the Supreme Court of Florida in Provenzano v. State,

24 Fla. L. Weekly S434, 435 (Fla. Sept. 23, 1999), permit this Court to "take any further steps

which it deems appropriate consistent with rule 3.812," the Court orally granted, and hereby

grants in writing, the State’s Motion for Order Granting Access to Defendant to Conduct Mental

Status Examinations. The Court specifically notes that Dr. Waldman and Dr. McClaren are not

witnesses for the Court, but rather are witnesses for the State. The Court is mindful of the fact

that rule 3.812(c)(2) permits a court to "appoint no more than 3 disinterested mental health

experts to examine a prisoner with respect to the criteria for insanity to be executed and to report

their findings and conclusions to the court." See Fla. R. Crim. P. 3.812(c)(2). The Court has

carefully considered that option, and has decided not to take such action.

The State requested that counsel for Provanzano provide the State with any documents which

Provenzano would like the State’s mental health experts to consider when conducting their

Page 3 of 6 examinations of Provenzano, and to provide the State with the names of any witnesses whom

Provenzano would like the State’s mental health experts to speak with concerning Provenzano’s

mental status. In response, counsel for Provenzano asserted that the only additional documents

which have not already been provided to the State or filed with the Court are documents

generated by Provenzano’s experts, and that those experts are in possession of those documents.

After extended discussion, Provenzano and the State agreed that it is permissible, but not

required, for the State’s experts to speak with Provenzano’s experts regarding Provenzano’s

mental status. Additionally, Provenzano and the State agreed that any reports generated by their

respective experts would be provided to each other.

The second request in the State’s Motion, that this Court order Provenzano to cooperate with

the State’s mental health experts, elicited a lengthy discussion. The State indicated that if

Provenzano is uncooperative with its experts, it intends to move for appropriate sanctions. In

response, counsel for Provenzano indicated that he would notify Provenzano that doctors for the

State would be visiting him and that he should cooperate with them. Provenzano’s counsel

further stated that upon being notified that Provenzano was being uncooperative with the State’s

experts, he would advise Provenzano to cooperate with them. Since the issue of Provenzano’s

lack of cooperation may never arise, the Court declines to address it at this time. However, the

State’s concerns are noted and the matter will be revisited if necessary.

At the hearing, the State also voiced its concerns that its witness list is due today, and it still

has not been advised by Provenzano’s counsel of the identity of the "DOC witnesses as they

become known" that are mentioned in Provenzano’s Supplemental Witness List. In response,

Provenzano’s counsel indicated that he has had difficulty getting certain DOC employees to return

his telephone calls, and that there may be a priest who has yet to be identified who may have some

Page 3 of 6 examinations of Provenzano, and to provide the State with the names of any witnesses whom

Provenzano would like the State’s mental health experts to speak with concerning Provenzano’s

mental status. In response, counsel for Provenzano asserted that the only additional documents

which have not already been provided to the State or filed with the Court are documents

generated by Provenzano’s experts, and that those experts are in possession of those documents.

After extended discussion, Provenzano and the State agreed that it is permissible, but not

required, for the State’s experts to speak with Provenzano’s experts regarding Provenzano’s

mental status. Additionally, Provenzano and the State agreed that any reports generated by their

respective experts would be provided to each other.

The second request in the State’s Motion, that this Court order Provenzano to cooperate with

the State’s mental health experts, elicited a lengthy discussion. The State indicated that if

Provenzano is uncooperative with its experts, it intends to move for appropriate sanctions. In

response, counsel for Provenzano indicated that he would notify Provenzano that doctors for the

State would be visiting him and that he should cooperate with them. Provenzano’s counsel

further stated that upon being notified that Provenzano was being uncooperative with the State’s

experts, he would advise Provenzano to cooperate with them. Since the issue of Provenzano’s

lack of cooperation may never arise, the Court declines to address it at this time. However, the

State’s concerns are noted and the matter will be revisited if necessary.

At the hearing, the State also voiced its concerns that its witness list is due today, and it still

has not been advised by Provenzano’s counsel of the identity of the "DOC witnesses as they

become known" that are mentioned in Provenzano’s Supplemental Witness List. In response,

Provenzano’s counsel indicated that he has had difficulty getting certain DOC employees to return

his telephone calls, and that there may be a priest who has yet to be identified who may have some

Page 5 of 6 Provenzano’s witnesses, lay or expert, including but not limited to Dr. Patricia Fleming, Dr.

Henry Dee, and Dr. Henry Lyons in this matter.

6) The precise times that Dr. McClaren will meet with Provenzano shall be furnished to

Provenzano’s counsel and the Florida Department of Corrections when known.

7) The precise dates and times that Dr. Waldman will meet with Provenzano shall be

furnished to Provenzano’s counsel and the Florida Department of Corrections when known.

8) Provenzano is advised that the State has indicated its intent to move for sanctions if

Provenzano fails to cooperate with the State’s experts. The Court defers ruling on any potential

sanctions that may be imposed for failure to cooperate until such time as they may become

necessary, if and when that should occur.

9) The Florida Department of Corrections is directed to immediately make witnesses available

to Provenzano’s attorneys so that Provenzano’s attorneys may further investigate the claim that

Provenzano is incompetent to be executed. Attorneys for DOC may be present at any interview

of DOC employees conducted by Provenzano’s attorneys.

10) Both parties may file amended witness lists reflecting the identification of any potential

DOC witness within a reasonable time of learning the identities of such witnesses.

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

Page 6 of 6 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, Drawer B, 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:

_S/___________________________ Senior Trial Court Staff Attorney