Supreme Court of Florida
Office of the Clerk
500 South Duval Street
Tallahassee, Florida 32399-1927
J
OHN
A.
T
OMASINO
CLERK
M
ARK CLAYTON
CHIEF DEPUTY CLERK
JULIA BREEDING
STAFF ATTORNEY
July 19, 2023
P
HONE
N
UMBER
:
(850)
488-0125
www.floridasupremecourt.org
The Honorable Kathleen Passidomo
President
The Florida Senate
409 The Capitol
404 South Monroe Street
Tallahassee, Florida 32399-1100
The Honorable Paul Renner
Speaker
The Florida House of Representatives
420 The Capitol
402 South Monroe Street
Tallahassee, Florida 32399-1300
Re: Annual Report Required Pursuant to “Timely Justice Act of
2013”
Dear President Passidomo and Speaker Renner:
Enacted as part of the Timely Justice Act of 2013, section
924.056(1), Florida Statutes, requires the Supreme Court to report
annually to the Legislature on “the status of each capital case in
which a postconviction action has been filed that has been
continuously pending for more than 3 years.”
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
2
On June 30, 2023, thirteen capital postconviction actions were
pending in the trial courts for more than three years (out of a total
of thirty-six cases pending in the trial courts). Four of those cases
involve defendants who were declared incompetent to proceed and
thus those postconviction proceedings are stayed pending
competency restoration.
The first section of this report details the nine postconviction
actions pending in circuit court for longer than three years as of
June 30, 2023. The second section details the four cases involving
defendants who are incompetent to proceed.
Pending for More than Three Years
Jermaine Foster, case number 491993CF000346XXCRXX, Osceola
County, Ninth Judicial Circuit, filed a postconviction motion on
October 17, 2018, and an amended motion on September 14, 2021.
The Honorable Jalal Harb is the presiding judge. On March 21,
2023, a Huff hearing was held. On May 3, 2023, the Court denied
the postconviction motion, in part, and granted an evidentiary
hearing on two grounds of the motion. A status conference is
currently set for September 6, 2023. On January 17, 2019, the
Florida Supreme Court remanded for an evidentiary hearing on
Defendant’s intellectual disability claim. Multiple status hearings
have been held since 2019. On June 17, 2020, the State filed a
Motion for Summary Denial of the Intellectual Disability Claim,
which was denied on February 18, 2021. On March 31, 2022, the
State renewed its Motion for Summary Denial of the Intellectual
Disability Claim. On May 4, 2023, the court entered an order
granting the State’s Renewed Motion for Summary Denial and
Denying Defendant’s Intellectual Disability Claim.
Mark Poole, case number 532001CF007078A0XXXX, Polk County,
Tenth Judicial Circuit, had his death sentenced reinstated by the
Florida Supreme Court on April 20, 2020. The Florida Supreme
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
3
Court also remanded to the circuit court for resolution of any
remaining penalty-phase claims that were raised in Defendant’s
postconviction motion but not addressed on the merits by the trial
court. The Honorable J. Kevin Abdoney is the presiding judge.
Status hearings have been held in January and April 2023.
Defendant filed an amended postconviction motion on June 29,
2023. The next status hearing is set for July 14, 2023, and an
evidentiary hearing is currently scheduled for August 14, 2023.
Randy Tundidor, case number 062010CF006496A88810, Broward
County, Seventeenth Judicial Circuit, filed his initial postconviction
motion on February 26, 2019. Multiple status conferences were
held from 2019 until April of 2020, when they were temporarily
paused due to the COVID-19 pandemic. The Honorable Elizabeth
Scherer was the presiding judge. Multiple status conferences have
been held from April 27, 2021, to present. On December 15, 2022,
Defendant filed a petition in the Florida Supreme Court, asking that
Judge Scherer be removed from the case. The proceedings in the
circuit court were stayed pending disposition of the Florida
Supreme Court case. On April 13, 2023, the Florida Supreme
Court granted the petition and Judge Scherer recused herself from
the case. The case was reassigned to Judge Ernest Kollra who also
recused himself. The case has been reassigned to the Honorable
Tim Bailey, who is currently reviewing the case.
Darious Wilcox, case number 062008CF003736A88810, Broward
County, Seventeenth Judicial Circuit, filed his initial postconviction
motion on February 19, 2016, and an amended motion on
September 22, 2017. On January 18, 2018, the circuit entered an
order summarily denying postconviction relief on all claims. On
September 13, 2019, the Florida Supreme Court vacated the trial
court’s order dated January 18, 2018, and remanded for a Huff
hearing and further proceedings. The Honorable Martin S. Fein is
presiding over the case. Status conferences were held from October
2019 to December of 2020, when they were temporarily paused due
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
4
to the COVID-19 pandemic. On August 9, 2021, Defendant filed an
amended postconviction motion. On February 18, 2022, a Huff
hearing was held. Multiple public records hearings were held in
2022 and multiple status conferences have been held since 2022.
An evidentiary hearing was held on April 19, 2023, and the court
has ordered that counsel for the parties shall each file a post-
hearing memorandum by July 21, 2023.
Henry Jones, case number 052009CF031876AXXXXX, Brevard
County, Eighteenth Judicial Circuit, filed his initial postconviction
motion on September 20, 2018. The Honorable Nancy Maloney is
the presiding judge. On March 19, 2019, Judge Maloney entered
an order staying Defendant’s postconviction proceedings until the
resolution of Defendant’s Tennessee warrant. On November 15,
2019, an order was entered appointing experts for a competency
evaluation of the Defendant. Multiple status conferences have been
held since 2019. A competency hearing began on December 13,
2022, and continued on April 18, 2023. On May 10, 2023, Judge
Maloney entered an order finding Defendant competent to proceed
further in postconviction proceedings. The Court held a case
management conference on June 13, 2023. An amended initial
postconviction motion was filed on June 20, 2023. An evidentiary
hearing is currently scheduled for September 7, 2023, but
Defendant filed an unopposed motion to continue the hearing and
the parties are to provide dates to the court for rescheduling.
Dale Middleton, case number 472009CF000448CFAXMX,
Okeechobee County, Nineteenth Judicial Circuit, filed his initial
postconviction motion on February 23, 2019. Judge Robert
Belanger is the presiding judge. There have been multiple status
conferences held from 2019 to present. There have also been
multiple public records hearings held, but there are currently no
outstanding public records issues. An amended postconviction
motion was filed on September 6, 2022. The State was granted two
extensions of time due to heavy death penalty case workload and
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
5
filed their response on January 4, 2023. A case management
conference was held on March 31, 2023. The next status
conference is set for September 14, 2023, and an evidentiary
hearing is currently set for October 23, 2023.
Rodney Lowe, case number 311990CF000658AXXXXX, Indian
River County, Nineteenth Judicial Circuit, filed his initial
postconviction motion on June 13, 2020, and an amended
postconviction motion on September 6, 2022. On November 7,
2022, the State’s answer was filed. Successor Judge Michael
Heisey was disqualified from the case and Chief Judge Charles A.
Schwab was reassigned to the case. Status conferences were held
in March and June 2023. An evidentiary hearing is currently
scheduled for July 17, 2023.
Mesac Damas, case number 112009CF002298AXXXXX, Collier
County, Twentieth Judicial Circuit, filed his initial postconviction
motion on March 20, 2020. The Honorable Ramiro Manalich is the
presiding judge. Multiple status conferences have been held. On
August 9, 2022, Judge Manalich appointed two experts to evaluate
Defendant’s competency. A competency hearing was held on
November 2, 2022. On November 14, 2022, Judge Manalich
entered an order finding Defendant competent to proceed. An
evidentiary hearing was held November 15, 2022, through
November 18, 2022. The parties filed their written closing
arguments on June 2, 2023, and the Court intends to issue its final
order on the Rule 3.851 motion on or before August 3, 2023.
Bill Marquardt, case number 602006CF000768CFAXFX, Sumter
County, Fifth Judicial Circuit, filed his initial postconviction motion
and a motion for determination of competency on September 21,
2016. The Honorable William Hallman was the presiding judge
until January 2022. A competency report was filed on November
21, 2016. A status conference was held December 12, 2016, where
the Court appointed two additional doctors to evaluate Defendant.
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
6
Multiple status conferences were held, appointing additional
experts to evaluate the competency of Defendant. On May 20,
2020, the Court found Defendant incompetent to proceed. On April
16, 2021, a stipulated order was entered, directing Department of
Corrections to release medical records and/or information as to the
Defendant’s current medical condition. On September 15, 2021, an
order was entered appointing experts to evaluate Defendant’s
competency. On January 25, 2022, the case was reassigned to the
Honorable G. Richard Singletary. A competency hearing was
scheduled for March 28, 2022, but was canceled. An order was
issued on April 14, 2022, appointing experts to evaluate
Defendant’s competency. On October 24, 2022, a competency
review hearing was held and on November 11, 2022, the State filed
their closing arguments. On April 20, 2023, the court determined
that Defendant is competent to proceed.
Incompetent to Proceed, Pending for More than Three Years
Steven Cozzie, case number 662011CF000353CFAXMX, Walton
County, First Judicial Circuit, filed his initial postconviction motion
on March 1, 2019. The Honorable Kelvin Wells is the presiding
judge. At a status conference held on May 7, 2019, Defendant had
a pending motion to determine competency and an order was
issued appointing experts. As of December 30, 2019, the Court was
waiting on the report from the second expert’s evaluation, which
was set back due to COVID-19 and Defendant’s competency
remained pending. A status conference was held on May 17, 2022.
On June 27, 2022, Judge Wells issued an order appointing two
experts to complete new competency evaluations for Defendant.
Multiple status hearings have been held. As of July 11, 2023, one
of the competency evaluation reports is still outstanding. The next
status conference is set for July 18, 2023, to address the status of
the second expert’s report and whether a third expert will need to
be appointed or whether a competency hearing will be scheduled.
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
7
Tony Watts, case number 161988CF011505AXXXMA, Duval
County, Fourth Judicial Circuit, filed his initial postconviction
motion on September 16, 1993. Judge Lawrence P. Haddock
presided from September 1993 through October 2011. Judge Brad
Stetson was appointed in October 2011, and a commitment order
dated April 30, 2015, was signed by Judge Waddell Wallace. On
June 3, 2016, the court issued an Order for Competency Evaluation
appointing a mental health expert to determine whether Defendant
was competent to proceed. During a status conference on June 21,
2016, parties reported that mental health experts were conducting
their evaluations of Defendant regarding his competency. Following
several status hearings, Judge Wallace entered an order on March
24, 2017, continuing commitment of Defendant and adjudging him
incompetent to proceed. After a competency review hearing on
June 13, 2018, Judge Angela Cox appointed an expert to further
evaluate the Defendant. The evaluations were reviewed before the
court on August 1, 2018. On August 9, 2018, Judge Cox entered
an order regarding Defendant’s continued commitment. Additional
status conferences were held before Judge Cox on May 15, 2019,
and June 13, 2019. At a status conference held before Judge
Marianne Aho on December 18, 2019, the parties agreed to pass
this case to February 4, 2020. On February 4, 2020, Judge Aho
entered orders appointing two mental health experts to evaluate
Defendant’s competency and a status conference was held on July
21, 2020. On August 18, 2020, a competency review hearing was
held, and Defendant was found incompetent to proceed. Status
conferences were held on July 15, 2021, and July 23, 2021. On
August 8, 2021, a hearing was held on Defendant’s competency and
on September 7, 2021, the Defendant was adjudged incompetent
and was ordered continued commitment. Another competency
review hearing was scheduled for June 28, 2022, and then July 7,
2022, but was postponed until August 2, 2022, as there was a
delay in the experts’ reports. On August 2, 2022, a competency
review hearing was held in part. On August 19, 2022, an additional
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
8
expert was appointed for competency review. On December 2,
2022, the remainder of the competency review hearing continued,
and the hearing was concluded on February 17, 2023. On March
16, 2023, the court issued an order finding that Defendant remains
incompetent. Another competency review hearing is currently
scheduled for November 17, 2023.
Gary McCray, II, case number 102004CF001149000AMX, Clay
County, Fourth Judicial Circuit, filed his initial postconviction
motion on March 12, 2013. The State filed its response to
Defendant’s motion for postconviction relief on May 9, 2013. At the
status conference on April 25, 2016, the court continued the
proceedings to await the Florida Supreme Court’s decision in
Lambrix. Numerous status conferences were held throughout 2016,
2017, and 2018. On March 18, 2019, Judge Don H. Lester held
that the Defendant remained incompetent to proceed. A status
conference was held on June 17, 2019. At a status conference on
December 16, 2019, it was determined that Defendant remains
incompetent to proceed. Multiple status conferences were held
from December 2020 to May 2021. On July 13, 2021, an expert
was appointed to determine Defendant’s competency. On January
4, 2022, a status conference was held, and it was determined that
Defendant remains incompetent. In October 2022, the court
determined that Defendant remains incompetent. Another
competency review hearing was scheduled for April 11, 2023, but
continued. A status conference was held on June 27, 2023, where
counsel for Defendant requested additional medical records for
review before the conclusion of the competency hearing. A status
hearing is currently scheduled for November 2, 2023.
Carlton Francis, case number 501997CF008545AXXXMB, Palm
Beach County, Fifteenth Judicial Circuit, filed his initial
postconviction motion on December 12, 2003. The Honorable
Jeffrey Gillen is the presiding judge. Status conferences regarding
competency were held on January 10, 2018, January 17, 2018,
The Honorable Kathleen Passidomo
The Honorable
Paul Renner
July
19, 2023
Page:
9
May 15, 2018, May 15, 2019, and July 15, 2019. On June 13,
2019, the Department of Corrections submitted an updated report
regarding Defendant’s mental status pursuant to the trial court’s
direction. Status hearings were held on July 15, 2020, and
September 15, 2020. On July 1, 2022, it was determined that
Defendant remains incompetent. A competency review hearing was
held on June 30, 2023, and on July 5, 2023, the court issued an
order finding that Defendant remains incompetent. The next status
hearing is set for June 28, 2024.
Please do not hesitate to contact me if you have any questions
regarding this report.
Sincerely,
John A. Tomasino
JAT/kac
