floyd motion to dismiss appeal - florida supreme court · chest and into the superior vena cavae,...
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IN THE SUPREME COURT OF FLORIDA
ROBERT IRA PEEDE,
Petitioner,
vs. CASE NO. SC03-1443Lower Tribunal No. CF83-1682
STATE OF FLORIDA,
Respondent._________________________/
RESPONSE TO PETITION FOR EXTRAORDINARY RELIEFAND MOTION TO DISMISS
INTRODUCTION
COMES NOW the Respondent, STATE OF FLORIDA, by and through
the undersigned Assistant Attorney General, and moves to dismiss
the instant Petition. Petitioner Peede is appealing an Order
finding that he is competent to proceed. However, that Order
was rendered as an interlocutory ruling, and should be reviewed
only at the conclusion of the postconviction proceedings which
are still being conducted in the circuit court below.
Therefore, this appeal should be dismissed as premature.
PROCEDURAL POSTURE AND FACTS
Petitioner Peede was convicted of the first degree murder
of Darla Peede and sentenced to death in 1984. On appeal, this
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Court provided the following summary of facts:
Intent on getting Darla to come back to North Carolinawith him to act as a decoy to lure his former wifeGeraldine and her boyfriend Calvin Wagner to a motelwhere he could kill them, Peede, on March 30, 1983,traveled from Hillsboro, North Carolina, toJacksonville, Florida, on his motorcycle. He sold hismotorcycle near Ormond Beach, took a cab to theairport, and flew to Miami. He attempted to callDarla at her daughter’s residence several times, eachtime speaking with Darla’s daughter Tanya becauseDarla was not at home. At 5:15 p.m., he called backand spoke with Darla who agreed to pick him up at theairport. Prior to leaving for the airport, however,Darla left very strict instructions with Tanya to callthe police if she was not back by midnight and to givethem the license plate number of her car because shemay have been forced into the car. She was afraid ofbeing taken back to North Carolina and being put withthe other people he had threatened to kill. She gaveTanya the telephone numbers of Geraldine and thepolice in Hillsboro, North Carolina. She left herresidence with only her purse and took no otherbelongings that would evidence her intention not toreturn home that evening. Although she would normallycall Tanya if she were going somewhere and not comingback for the evening, Tanya received no such call.
According to Peede, when Darla picked him up at theairport, she informed him that she planned to go backto her apartment and then to the beach the next day.He then directed her to drive north on Interstate 95,but, after gassing up Darla’s car, they mistakenly goton the turnpike heading for Orlando. As they left theMiami area and the song “Swinging” came on the radio,Peede took his lock-blade knife and inflicted asuperficial cut in Darla’s side. In his confession,Peede described his belief that Darla and Geraldinehad mutually advertised for sexual partners in anationally publicized, pictorial “Swinger” magazinewhich he had seen while imprisoned in California.
Peede said that on the way to Orlando they stopped andpicked up a hitchhiker who drove the car while theyhad intercourse in the back seat. The hitchhiker was
3
dropped off in Orlando and Peede drove east on I-4toward Daytona Beach. As they drove, the conversationagain returned to the subject of Peede’s belief thatGeraldine and Darla had advertised in “Swinger”magazine. Approximately five to six miles outside ofOrlando, Peede stopped the car on the shoulder of theroad, jumped into the back seat, and, with his lock-blade hunting knife, stabbed Darla in the throat whichresulted in her bleeding to death within five tofifteen minutes. Still determined to get back toNorth Carolina to kill Geraldine and Calvin, heproceeded up I-95. He left Darla’s body in a woodedarea in Camden, Georgia, and he threw the murderweapon out of the car window on his way to NorthCarolina. When he returned to his home in Hillsboro,North Carolina, he decided that he would killGeraldine and Calvin while they were on their way towork. He loaded his shotgun and placed it beside thedoor. Before he could carry out his plan, the policearrived, and he was arrested. Darla’s heavilybloodstained car was parked at his residence. Inaddition to his lengthier confession to theauthorities, Peede wrote out and had witnessed thefollowing short confession:
My name is Robert Peede, on March 31, 1983, Ikilled my wife Darla, by stabbing her in the neckwith a Puma folding knife. This occurred on Hwy.4 (interstate) about six miles east of OrlandoFla., in the back seat of Darla’s 71 Buick.
I ask for the death penalty in this crime, to becarried out as soon as possible.
Robert Peede
D.O.B. 6-30-44
Darla’s body was found in the woods. She had a stabwound in the throat area which continued into thechest and into the superior vena cavae, a second stabwound nine inches below her shoulder in her side, andbruising on various parts of her legs and arms whichthe medical examiner characterized as defensivebruising. The contusions on her wrists evidenced astruggle.
4
Peede was convicted of first-degree murder. The juryrecommended that the death penalty be imposed, and thetrial court sentenced him to death.
Peede v. State, 474 So. 2d 808, 809-810 (Fla. 1985).
The trial court summarily denied a motion for postconviction
relief and that decision was appealed to this Court. This Court
reversed the trial court’s summary denial and remanded for an
evidentiary hearing on four issues. The issues this Court
stated required factual development during an evidentiary
hearing were as follows: 1) a Brady claim regarding whether the
State had possession of the victim’s diary and whether Peede’s
counsel had access to it; 2) whether the State improperly
withheld evidence establishing Peede’s longstanding mental
illness; 3) whether counsel was ineffective for failing to
present issues surrounding Peede’s competency and; 4) whether
Peede received an inadequate mental health evaluation and
whether counsel was ineffective in failing to argue additional
statutory mitigation and present witnesses to document Peede’s
alleged history of abuse, bizarre behavior, and manifestations
of mental illness. Peede v. State, 748 So. 2d 253, 257-259
(Fla. 1999).
On remand to the circuit court, Peede’s evidentiary hearing
has been delayed by questions of representation and change of
counsel due to conflict. And, as relevant here, the hearing has
1Dr. Fisher was retained by CCRC to examine Mr. Peede andadmitted that almost all of his work in criminal cases has beenfor the defense. (PA-B, 23-24).
5
been delayed due to the issue of Peede’s competence. On March
24, 2000, counsel for CCRC requested a competency examination of
Mr. Peede. Thereafter, the circuit court appointed mental
health experts to examine Peede. On May 24, 2000, the court
conducted a competency hearing, and heard testimony from two
experts retained by the defense and two experts appointed by the
court. The two experts retained by the defense1 testified that
Peede was not competent to proceed based upon his apparent
inability to discuss the details surrounding the murder of his
ex-wife, Darla. (Petitioner’s Attachment [hereinafter, PA] B at
28).
Peede allowed himself to be interviewed with Dr. Fisher, an
expert retained by his counsel. Dr. Fisher found Peede to be of
average intelligence and “he was in general cooperative.” (PA-B
at 26). He found nothing remarkable, Peede was not
schizophrenic or overtly impaired or retarded. (PA-B at 27).
Nonetheless, Dr. Fisher found Peede was not competent because he
would not discuss the details surrounding the murder with him.
(PA-B, 28). When Dr. Fisher attempted to discuss the facts with
Peede he would become emotional to the point that Dr. Fisher
felt if he pursued it further he was risking termination of the
6
interview. (PA-B at 28). Peede would not talk about the “inner
workings of that himself at the time of the crime for which he
is incarcerated.” (PA-B at 28-29). Dr. Fisher had no
explanation for Peede’s refusal to talk about the event: “I
didn’t have a good explanation for that inability; that I
perceived he’s got the brain power, the, probably has the memory
but he couldn’t do it.” (PA-B, 29).
Dr. Fisher testified that Peede could not talk about what
happened with Darla in the car, but did have a competent
understanding of other issues in the case, and, for example was
able to express his displeasure with counsel for CCRC for
failing to cancel the transport order when a scheduled hearing
was cancelled. (PA-B at 29-30). Dr. Fisher concluded that
Peede was incompetent in that he did not have the ability to
“speak to his attorneys about the particulars of the case,
meaning what happened in the car with Darla, nor has he talked
to Dr. Teich or myself in the effort to get information about
that same area.” (PA-B at 31). However, in the other areas,
Peede did “understand what these proceedings are, what the
proceedings are against him. He knows what he’s accused of, he
knows when it happened, he knows what the sanctions are. So he
does know those things.” (PA-B at 31).
On cross-examination, Dr. Fisher acknowledged that he did
7
not find any overt signs of any neurological condition. Dr.
Fisher added, however, that any time you have a problem with
memory and it is not amnesia “that looks like a mental problem
in that circumscribed area.” (PA-B at 32). Dr. Fisher found
that Peede suffered from major memory disturbance and “he has
depression.” (PA-B at 32). Dr. Fisher acknowledged that the
DOC records reveal repeated instances of Peede failing to
cooperate with authorities in the medical context. (PA-B at 32).
So, as part of his personality, he will refuse to cooperate.
Id. At other times, however, Peede will cooperate for medical
procedures as he did in receiving an operation for hemorrhoids.
(PA-B at 32-33). Dr. Fisher had difficulty reconciling the fact
that during the Nelson inquiry Peede apparently had the ability
to discuss events on the day of Darla’s murder, specifically,
regarding his allegation that he and Darla picked up a
hitchhiker. (PA-B at 34). Dr. Fisher acknowledged that the
objective testing he conducted did not reveal any problem or
defect that would explain why Peede would not talk about what
happened in the car with Darla. (PA-B at 36-37). Dr. Fisher
was aware that the court appointed two other experts to examine
Mr. Peede and that he refused to even see them. (PA-B at 37).
That was a factor which might indicate Peede is malingering on
this issue. (PA-B at 37-38).
2Respondent’s Exhibit A is the State’s response to thesecond request for a competency evaluation of Mr. Peede. Thisresponse was not attached to Peede’s Petition nor was the secondreport of Dr. Berns, finding Peede competent to proceed.
8
Petitioner correctly points out that Peede would not agree
to be interviewed by the two court appointed doctors and that
they could not render an opinion on competency for that reason.
(Petition at 4-5). Petitioner, however, neglects to mention
that one court appointed doctor, Dr. Berns, subsequently
reviewed a videotaped interview conducted by a defense doctor,
and, from his review of the records and that video, concluded
that Peede was indeed, competent to proceed. (RA-A2 at 16-19).
On June 22, 2000, the trial court found Peede competent to
proceed. (RA-B).
Dr. Eric Mings made two attempts to talk with Mr. Peede but
was informed that Peede would not speak to him. (PA-B at 47).
He believed that without a face to face interview he could not
render a professional opinion on competency to proceed. (PA-B
at 47). When the court asked Dr. Mings if he would interview
Peede in open court, Mr. Peede interjected, stating that it was
“[n]ot going to happen either way.” (PA-B at 49).
Dr. Mings could not state whether the failure to cooperate
was the result of some paranoid ideation or other manifestation
of mental illness without a face to face interview. The DOC
3Previous counsel was allowed to withdraw based uponpersonal conflict with Peede.
9
records, however, did not reveal any evidence of, or treatment
for mental illness. (PA-B at 47). Dr. Mings did note some
evidence of paranoia in the records but did not have any way of
discerning whether his lack of cooperation was the result of a
logical reasoning or based upon paranoia. (PA-B at 48).
However, Dr. Mings admitted that the DOC records did not reveal
indications of “paranoid ideations.” (PA-B at 49). Although he
did not see any evidence of that in the records [paranoid
ideations], he could not say “it wasn’t there.” (PA-B at 49).
At a status conference, Peede’s new counsel, Kenneth Malnik,
Assistant CCRC, South, questioned Peede’s competency. On
November 29, 2000, the Honorable Judge Lawrence Kirkwood
reaffirmed his prior competency ruling and granted the State’s
motion for Peede to submit to an examination by a mental health
expert selected by the State. (PA-D). On December 6, 2001,
Peede’s counsel filed a written motion to determine competency
based upon Peede’s emotional display during a meeting with
counsel at the jail.3 Peede evidently became very emotional when
the discussion turned to his ex-wife Darla. Moreover, Peede
indicated that he would not trust any doctor selected by the
State and therefore would not cooperate in the court ordered
4On January 4, 2002, Dr. Merin traveled to UnionCorrectional to meet with Mr. Peede but Peede refused to beexamined by the expert selected by the State. (RA-Exhibit 1).
10
examination.4 (PA-C). The State filed a written objection to
another round of competency examinations, noting that the issue
of Peede’s competency had been fully litigated. (RA-A). The
State argued the instant motion did not differ significantly
from the conduct cited in the previous motion to determine
competency. (RA-A).
On February 8, 2002, the Honorable Lawrence Kirkwood granted
the defense motion and appointed Dr. Berns to examine Peede and
submit a report. (RA-C). On March 13, 2002, Dr. Berns filed a
report documenting his review of records and conclusions
regarding Mr. Peede. (RA-C). As part of his evaluation, Dr.
Berns met with Peede at prison to conduct an interview.
However, Dr. Berns found Peede uncooperative and the interview
was terminated after only ten minutes. (RA-C, 6). Dr. Berns
therefore was not able to render an opinion on Peede’s
competency. Id. at 8. Dr. Berns recommended that Peede be
transferred to the psychiatric unit of the Florida State prison
where he could be monitored and the staff could report on his
mental condition. Id. at 7. On June 13, 2002, the State filed
a notice of concurrence with the court appointed expert’s
recommendation that Peede be transferred to the forensic unit of
11
a state hospital, such as the North Florida Evaluation and
Treatment Center where he could be observed on a 24 hour basis
by trained mental health professionals. (RA-D).
On September 17, 2002, the Honorable Lawrence Kirkwood
issued an order for Peede to be transferred to a state mental
health facility for a period of evaluation and to file a report
with the court. (RA-E). On December 12, 2002, Dr. David Frank,
a contract Psychiatrist with Union Correctional Institution,
submitted a report to the court. Dr. Frank’s report noted the
following:
Following admission to the UNCI TCU, Inmate Peede wasevaluated with a full initial psychiatric evaluation,weekly follow-up psychiatric interviews, around theclock nursing and security observations, and periodicobservations by a recreational therapist. InmatePeede chose to refuse most services and opportunitiesfor evaluation, which necessitated a longer thanexpected evaluation period. During these seven weeksof observation/evaluation, he has not exhibited anysigns or symptoms of psychosis, thought disorder,depression, mania, or any other major mental disorder.In fact, during the evaluation period, the multi-disciplinary services team has been unable to identifyany disorder that would indicate the need forinpatient treatment... (RA-F).
Dr. Frank concluded that Peede did not require any inpatient
mental health treatment, and that he suffered from a personality
disorder with Antisocial and Borderline Features. (RA-F, 2).
Dr. Gloria Calderon, Senior Physician for Union Correctional
Institution, submitted a report to the court on May 23, 2003.
12
(RA-G). Dr. Calderon observed that Peede refused scheduled
appointments with psychiatry. Dr. Calderon observed Peede in
his cell and noted that he was pleasant, cooperative, and
willingly signed the refusal slips. Id. Peede was not on any
psychotropic medication and recommended lowering his psychiatric
classification so that he would no longer be seen by psychiatry
on a regular basis. Id.
On July 18, 2003, the Honorable Alan Lawson conducted a
hearing to determine Peede’s competency. Defense counsel
presented one witness at the hearing, Dr. Frank. Dr. Frank
observed Peede in “TCU” for at least 12 days during the six
weeks that Peede was in the facility. (PA-H, 24). There was
nothing in his observations of Peede during that period that
would lead him to conclude Peede was incompetent. Id. Peede
would not discuss the issue of his wife’s murder because it hurt
“too much,” the same reason he gave the trial court. Id. His
unwillingness to discuss the facts was not due to mental
illness. (PA-H, 24-25). Although he was not directly asked to
examine Peede for postconviction competency, Dr. Frank observed
that the criteria for competency are “fairly simple.” (PA-H,
25). The only question regarding Peede’s competency was whether
he was able to give information to his attorney. “And again, he
has the ability, and that’s what it actually asks in there.
13
Does he have the ability. It doesn’t say will he. Actually,
does he understand that he is expected to discuss the events
surrounding his crime with his attorney. But then later on I
think it says that, you know, also that he is able to. So those
two issues.” (PA-H, 25-26). Dr. Frank believed that his
observation of Peede and his review of background material
provided a sufficient basis to conclude that Peede was competent
to proceed. (PA-H, 26).
At the hearing, counsel Malnik reiterated the previous
difficulty counsel had with Peede, that he would not discuss the
facts surrounding the murder with him. (PA-H at 21-22). The
court then inquired of Mr. Peede as to why he would not discuss
the facts with counsel. Peede told the court: “Truth is, it
hurts too much. So I’m thinking about it, and I don’t want to
talk about it.” (PA-H, 22-23). Upon further inquiry, Peede
pointedly reiterated his stance: “Sir, I just told you. I
don’t think about it. I don’t talk about it. That’s the end of
it. If you want to kill me, kill me. That’s it. I’m through
with it.” (PA-H, 23).
On July 24, 2003, the Honorable Alan Lawson found Peede
competent to proceed. The court noted, in part: “Having
evaluated the experts’ reports, viewed Mr. Peede’s in-court
behavior, and carefully considered the testimony of Dr. Frank
14
and this Court’s discussion with Defendant, the Court finds
Defendant to be competent. Simply put, Mr. Peede could assist
his attorneys, if he wanted to, but is instead choosing not to
discuss the facts of this case. It is clear to this Court that
Mr. Peede is not incompetent, simply uncooperative.” (PA-I at
2).
ARGUMENT
THE ORDER FINDING PETITIONER COMPETENT TO PROCEED ISNOT SUBJECT TO AN INTERLOCUTORY APPEAL. PETITIONERHAS NOT SHOWN THE TRIAL COURT DEPARTED FROM THEESSENTIAL REQUIREMENTS OF THE LAW OR THAT HE WILLSUFFER IRREPARABLE HARM IF THE EVIDENTIARY HEARINGPROCEEDS.
A. The Instant Petition Should Be Summarily Dismissed
Since Peede’s other postconviction claims remain pending,
the Order currently being appealed is interlocutory and not
subject to appeal at this time. “It is well settled that a
judgment attains the degree of finality necessary to support an
appeal when it adjudicates the merits of the cause and disposes
of the action between the parties, leaving no judicial labor to
be done except the execution of the judgment.” McGurn v. Scott,
596 So. 2d 1042, 1043 (Fla. 1992)(quoting Gore v. Hansen, 59 So.
2d 538 (Fla. 1952). Non-final orders in capital postconviction
proceedings are reviewed by this Court pursuant to Rule
15
9.142(b), Florida Rules of Appellate Procedure (2003). See also
Trepal v. State, 754 So. 2d 702 (Fla. 2000). Rule 9.142
mandates filing requirements which mirror the rules for
extraordinary writs. In addition, this Court’s exercise of its
jurisdiction over such appeals requires an appellant to show
that the challenged order does not conform to the essential
requirements of the law, and may cause irreparable injury for
which appellate review would be inadequate. Trepal, 754 So. 2d
at 707. The instant Petition does not satisfy the requirements
for such extraordinary exercise of this Court’s jurisdiction.
Rule 9.142(b) and Trepal are consistent with prior decisions
regarding the appropriateness of appellate review of nonfinal
orders. See McGurn, 596 So. 2d at 1042 (piecemeal review of
cases is not favored by an appellate court and care should be
exercised by trial judges to avoid, so far as is possible, the
necessity for successive appeals); Brown v. Housing Authority of
Orlando, 680 So. 2d 620 (Fla. 5th DCA 1996); White v. State, 450
So. 2d 556 (Fla. 2d DCA 1984). No prejudice will accrue to
Peede since he has an avenue of relief available once his
remaining claims for relief are resolved. If the defendant is
allowed to continue to pursue the appeal of the partially
completed proceedings below, he will effectively delay the
proceedings by requiring two appeals rather than one. Such
16
unnecessary delay prejudices the State of Florida and frustrates
the administration of justice in this case. On these facts,
dismissal of this appeal is required.
Issues surrounding competency are reviewed in the normal
course of appeal before this Court, not in an interlocutory
appeal. See generally Carroll v. State, 815 So. 2d 601, 610
(Fla. 2002)(finding competency claim procedurally barred from
post-conviction review where the competency finding was not
challenged on direct appeal of the defendant’s conviction),
citing Patton v. State, 784 So. 2d 380, 393 (Fla. 2000) and
Johnston v. Dugger, 583 So. 2d 657, 659 (Fla. 1991). If the
normal course of appellate review is sufficient for a competency
to stand trial determination, there is no reason to treat a
postconviction finding of competency differently. Petitioner
has an adequate remedy, an appeal to this Court after the
conclusion of his evidentiary hearing. No irreparable harm will
be suffered by Peede. See State v. Lozano, 616 So. 2d 73, 75
(Fla. 1st DCA 1993)(stating that “the time, trouble, and expense
of an unnecessary trial are not considered ‘irreparable injury’
for these purposes.”). An interlocutory appeal on a competency
finding simply encourages piecemeal litigation and results in a
waste of this Court’s limited judicial resources. See Thomas v.
Silvers, 748 So. 2d 263, 264 (Fla. 1999)(“we remain vigilant in
17
guarding the policy underlying rule 9.130 restricting piecemeal
review of nonfinal orders because allowing such a review, in
most cases, only serves to waste court resources and needlessly
delay final judgment.”)(citing Travelers Ins. Co. v. Bruns, 443
So. 2d 959, 960 (Fla. 1984)). Accordingly, the instant appeal
should be dismissed.
B. The Trial Court Did Not Depart From The EssentialRequirements Of The Law In Finding Peede Competent ToProceed
Peede takes issue with the procedure employed by the trial
court for determining his competency. Specifically, he contends
that the procedures prescribed under Rule of Criminal Procedure
3.211 were not followed. (Petition at 13-14). Petitioner is
somewhat vague in which requirements were not met, simply
listing the information that should be contained in the report
under Rule 3.211(d). If there was any defect in the procedure
employed below, it was only because of Peede’s complete refusal
to cooperate with psychiatric examinations. Moreover, it must
be remembered that Peede has already had one full competency
hearing, wherein two court appointed experts testified as well
as two defense experts. After this hearing, Peede was found
competent to proceed. A second competency hearing on
essentially the same grounds, Peede’s emotional refusal to
discuss details of his ex-wife’s murder, was not warranted.
5The trial court asked defense counsel a salient questiongiven the posture of this case: “So, you are saying that you canjust successively keep filing motions? Do you have a basis forthat?” (PA-H at 20). Defense counsel simply stated that therule did not mention prior competency determination. (PA-H at20-21).
18
Based upon this record, the trial court would have been well
within its discretion to reject defense counsel’s motion.5
In Hunter v. State, 660 So. 2d 244 (Fla. 1995), cert.
denied, 516 U.S. 1128 (1996), the defendant claimed the trial
court erred in denying a renewed motion to determine competency.
“In this motion, defense counsel made several observations about
his client’s continuing unusual behavior, including Hunter’s
repeated threats to disrupt the proceedings.” Hunter, 660 So.
2d at 248. Defense counsel also referred to a second report
from one of his experts “which primarily discussed mitigating
circumstances, but also opined that Hunter was incompetent to
stand trial.” Id. This Court found the trial court did not err
in refusing to conduct a second competency hearing, noting that
a presumption of competence attaches from a previous
determination of competency to stand trial. “While there was
continuing evidence of incompetence, it was the same or similar
to the evidence previously asserted and was not of such a nature
as to mandate a new hearing.” Hunter, 660 So. 2d at 248.
Similarly, in Oats v. State, 472 So. 2d 1143 (Fla.), cert.
19
denied, 474 U.S. 865 (1985), the defendant argued the trial
court erred in failing to order a competency examination prior
to sentencing based upon defense counsel’s assertion that he was
insane. The defense counsel made this request based upon his
conversations with the defendant and “expert testimony presented
during the trial concerning Oats’s mental state.” Oats, 472 So.
2d at 1144. The defendant was questioned by the trial court and
appeared oriented to time and place but “professed confusion as
to the exact nature of the proceeding facing him.” Id. This
Court phrased the question before it as follows: “Thus, the
narrow issue before this Court is whether the trial court abused
its discretion by refusing to appoint experts to examine the
defendant when the only evidence of defendant’s possible
insanity is the defense counsel’s unsupported suggestion that
defendant is not presently sane.” This Court held it was not,
noting that Florida Rule of Criminal Procedure 3.740(a)
conditions the postponement of sentencing on the court having
“reasonable ground” to believe that the defendant is insane.
Under the facts presented in Oats, this Court found defense
counsel’s unsupported claim did not meet this reasonable ground
requirement for the appointment of experts. Oats, 472 So. 2d at
1144.
Defense counsel’s motion questioning Peede’s competency was
20
based essentially upon the same grounds as the motion filed by
previous counsel. As the State argued, the motion did not
provide “reasonable grounds” to once again order Peede examined
for competency. Nonetheless, exercising an abundance of
caution, the court appointed Dr. Berns, who had previously
considered the question of Peede’s competency, to attempt
another examination. Predictably, Peede refused to cooperate,
terminating the interview with Dr. Berns, after only ten
minutes. At least two experts did examine or attempt to examine
Peede for his latest competency determination. [Dr. Berns and
Dr. Frank].
Dr. Frank, the expert with the most contact with Peede,
testified in court that Peede was competent to proceed. Dr.
Frank noted the criteria for competency are “fairly simple.”
(PA-H, 25-26). Dr. Berns was unable to render a conclusion
regarding Peede’s competency due to his lack of cooperation with
the examination. On Dr. Berns’ recommendation, Peede was
transferred to the state hospital for a period of observation by
prison mental health personnel. (RA-C at 7). After the
requested period of observation the court held a hearing on
Peede’s competency. After hearing the testimony of Dr. Frank
and considering the court’s observation of Peede and the hearing
colloquy, Peede was again found competent to proceed. Peede has
21
successfully delayed his evidentiary hearing for nearly two
years by refusing to cooperate with counsel. It cannot be said
the trial court’s ruling departed from the essential
requirements of the law. Accordingly, this Petition must be
denied.
WHEREFORE, the State respectfully submits that this
Honorable Court issue an Order dismissing the instant Petition.
Respectfully submitted,
CHARLES J. CRIST, JR.ATTORNEY GENERAL
___________________________________SCOTT A. BROWNEAssistant Attorney GeneralFlorida Bar No. 0802743Concourse Center 43507 East Frontage Road, Suite 200Tampa, Florida 33607-7013(813) 287-7910(813) 281-5501 Facsimile
COUNSEL FOR RESPONDENT
22
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by U. S. Regular Mail to Kenneth
Malnik, Assistant Capital Collateral Counsel - Southern Region,
101 Northeast 3rd Avenue, Suite 400, Fort Lauderdale, Florida
33301, this _____ day of October, 2003.
CERTIFICATE OF TYPE SIZE AND STYLE
I HEREBY CERTIFY that the size and style of type used in
this response is 12-point Courier New, in compliance with Fla.
R. App. P. 9.210(a)(2).
___________________________________COUNSEL FOR RESPONDENT
IN THE SUPREME COURT OF FLORIDA
ROBERT IRA PEEDE,
Petitioner,
vs. CASE NO. SC03-1443Lower Tribunal No. CF93-1682
STATE OF FLORIDA,
Respondent.
INDEX TO APPENDIX
RA-A . State’s Response to Motion to Determine Competency,December 6, 2001 (this exhibit provided without theMay 24, 2000 transcript which has been provided to thecourt with Petitioner’s Initial Petition)
RA-B . Order following Hearing on Motion for Determination ofCompetency, June 22, 2000
RA-C . Order Granting Motion to Determine Defendant’sCompetency, February 8, 2002 and Forensic Evaluationof Robert Peede by Alan S. Berns, M.D., March 13, 2002
RA-D . State’s Concurrence of Court Appointed Mental HealthExpert’s Recommendation for Transfer of Defendant...and Motion to Expedite Competency Evaluation Process,June 13, 2002
RA-E . Corrected Order Regarding State’s Concurrence of MentalHealth Expert’s Recommendation for Transfer ofDefendant and Motion to Expedite Competency EvaluationProcess, September 17, 2002
RA-F . Report of David E. Frank, M.D., December 12, 2002
RA-G . Department of Corrections’ Notice of Filing: Report ofG. Calderon, M.D., Sr. Physician, Union CorrectionalInstitution, May 23, 2003
RA-Ex. 1 Letter from Sidney Merin, Ph.D., January 8, 2002 (this