Monday, December 4, 2006



NO. SC06-2305; SC06-______


















COMES NOW THE APPELLANT, ANGEL NIEVES DIAZ, by and through his undersigned counsel, and herein requests a stay of execution pending the appeal in this case. In support thereof, Appellant would state:

1. Appellant is currently scheduled to be executed on Wednesday, December 13, 2006, at 6:00 PM.

2. On Tuesday, November 21, 2006, the lower court entered an order summarily denying Mr. Diaz’s Amended Rule 3.851 Motion and Amendment to his Amended 3.851 Motion. Each of those motions set forth claims requiring an evidentiary hearing.

3. On November 27, 2006, Mr. Diaz filed a successive Rule 3.851 motion alleging a substantial claim of newly discovered evidence. On the same date, this Court relinquished jurisdiction to the lower court to consider Mr. Diaz’s successive Rule 3.851 motion.

On Friday, December 1, 2006, the lower court entered an order summarily denying Mr. Diaz’s successive Rule 3.851 motion relating to newly discovered evidence that the jailhouse snitch that provided the only evidence at trial that Mr. Diaz was the victim’s shooter, lied during his testimony. As such, Mr. Diaz asserts that he is entitled to an evidentiary hearing on his newly discovered evidence claim as well the additional claims pled in his 3.851 motion. Mr. Diaz is appealling the lower court’s decisions and files his initial brief on this date.

3. The standards governing the grant of a stay of execution and the granting of an evidentiary hearing are the same. A stay of execution is proper when the defendant presents "enough facts to show . . . that he might be entitled to relief under rule 3.850." State v. Schaeffer, 467 So. 2d 698, 699 (Fla. 1985). When the defendant presents such facts, a trial court has "a valid

an evidentiary hearing. ; basis for exercising jurisdiction" and granting a stay of execution and Id.see also State v. Crews, 477 So. 2d 984, 984-85 (Fla. 1985); State v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987); O'Callaghan v. State, 461 So. 2d 1354, 1355-56 (Fla. 1984); Lemon v. State, 498 So. 2d 923 (Fla. 1986). If an evidentiary hearing is proper -- as is the case here -- then a stay of execution is proper as well.

4. A Rule 3.851 litigant is entitled to an evidentiary hearing (and a stay of execution) unless "the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief." Fla. R. Crim. P. 3.850; Lemon v. State, 498 So. 2d 923 (Fla. 1986); State v. Crews, 477 So. 2d 984 (Fla. 1985); O'Callaghan v. State, 461 So. 2d 1354 (Fla. 1984); Sireci, 502 So. 2d at 1224; Mason v. State, 489 So. 2d 734, 735-37 (Fla. 1986). See also Groover v. State, 489 So. 2d 15 (Fla. 1986).

Where, as here, a capital postconviction litigant presents a well-pled claim, an evidentiary hearing is warranted. See Roberts v. State, 678 So. 2d 1232 (Fla. 1996); Scott v. State, 657 So. 2d 1129 (Fla. 1995); Johnson v. Singletary, 647 So. 2d 106 (Fla. 1994); Jones v. State, 591 So. 2d 911 (Fla. 1991).

5. In deciding whether to deny a Rule 3.850 motion without an evidentiary hearing and a stay of execution, the Court must first determine "whether the motion on its face conclusively shows that [the defendant] is

entitled to no relief." Squires v. State, 513 So. 2d 138, 139 (Fla. 1987). Mr. Diaz's motion pleads more than sufficient facts to require an evidentiary hearing and a stay of execution. O'Callaghan; Lemon; Sireci.

6. It is certainly altogether reasonable for a capital defendant to request a stay pending the orderly resolution of his claims before the "irremediable act of execution is taken." See generally Shaw v. Martin, 613 F.2d 487, 492 (4th Cir. 1980) cf. Swafford, 679 So. 2d at 740. In State v. Crews, 477 So. 2d 984 (Fla. 1985), the Supreme Court illustrated just how necessary it is for circuit courts to stay executions in order to properly conduct adequate evidentiary hearings.

Crews involved a second Rule 3.850 motion by Stephen Booker. Mr. Booker had been denied relief in his first Rule 3.850 proceeding and the Florida Supreme Court had affirmed that denial. Booker v. State, 441 So. 2d 148 (Fla. 1983). Upon the signing of Mr. Booker's third death warrant, he filed a successor Rule 3.850 motion in the trial court. The trial judge entered a stay of execution and set a date for an evidentiary hearing. The State applied for a writ of prohibition and filed a motion to vacate the stay in the Florida Supreme Court. The Supreme Court denied both.

The Court said once more that the question on stay applications is not whether the defendant will ultimately win a new trial or sentencing proceeding; the

question is whether it can conclusively be said that the defendant will ultimately lose:

The trial court did not err in granting defendant an evidentiary hearing on the claim of ineffective assistance of counsel. The movant is entitled to an evidentiary hearing unless the motion or files and records in the case conclusively show that the movant is entitled to no relief. O'Callaghan v. State, 461 So. 2d 1354, 1355 (Fla. 1984)(citations omitted).

The state has failed to show an abuse of the trial court's discretion in finding that the files and records of the case do not conclusively show that the defendant is entitled to no relief on that ground.

Crews, 477 So. 2d at 984-85. Accord State v. Sireci, 502 So. 2d at 1224.

7. This court has granted stays of executions when situations have warranted it. See King v. Moore, 825 So. 2d 127 (Fla. 2002); Bottoson v. Moore, 824 So. 2d 115 (Fla. 2002); Provenazano v. State, 750 So. 2d 597, 603 (Fla. 1999); Roberts v. State, 678 So. 2d 1363, 1370 (Fla. 1995).

8. Furthermore, Mr. Diaz has made numerous demands for additional public records pursuant to Fla. R. Crim. P. 3.852 (i) and (h)(3). The lower court here abused its discretion in denying public records requests. The court ignored Fla. R. Crim. P. 3.852(h)(3) which provides ten days from the signing of a death warrant for collateral counsel to file demands for additional public records.

Rather, the court imposed its own

arbitrary and unreasonable rule, allowing Mr. Diaz only two days to request records.

Second, the court sustained the State’s "global" objection on behalf of every served agency to Mr. Diaz’s demands without the opportunity to respond specifically to each agency’s objections, relying on factual findings that are demonstrably false.

No reasonable person would take the view adopted by the lower court.

Mr. Diaz’s rights to access to the courts, equal protection and effective legal representation are being denied because the circuit court has denied access to public records to which he is entitled. Because this Court should remand this case to the circuit court for full public records disclosure, a stay of execution is necessary.

9. On this date, Mr. Diaz has also filed a Petition For A Writ Of Habeas Corpus, And/Or Motion To Reopen The Direct Appeal setting forth substantial claims for relief, including a request for this Court to reconsider its proportionality review in this case based on the newly discovered evidence that Mr. Diaz was not the triggerman.

10. In light of these circumstances, a stay of execution is appropriate so that Mr. Diaz’s claims can be presented at a proper evidentiary hearing. The seriousness of this case, and the seriousness of the issues presented in this appeal, militate in favor of appellate review that is

not dictated by the urgent exigencies of an execution which is presently scheduled to be carried out in a mere nine days.

WHEREFORE, Appellant requests a stay of execution.


I HEREBY CERTIFY that a true copy of the foregoing has been furnished via electronic mail and U.S. Mail to Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Suite 650 Miami, Florida 33131 this ___ day of ____________ 2006.

Assistant CCRC
Florida Bar No. 0150177

Staff Attorney
Florida Bar No. 0014244
Capital Collateral Regional
Counsel - South
101 NE Third Avenue, Suite 400
Ft. Lauderdale, FL 33301
(954) 713-1284

No comments: