William VAN POYCK, Appellant(s) v. STATE of Florida, Appellee(s)

PERRY, J.,

concurring in part and dissenting in part.

In light of the circumstances we find in this case, I concur with the majority’s decision to deny counsels’ motion to withdraw from representation of Mr. Van Poyck. However, I respectfully and profoundly dissent from the majority’s decision to deny counsel’s motion to grant a stay of execution in this case.

In my view, majority is willingly disregarding the reality that counsel has admitted that it is not prepared to provide Mr. Van Poyck with the level of representation he should be afforded under the Sixth and Fourteenth Amendments.

It is inexcusable for counsel to be unprepared to properly represent its client in light of the fact that these attorneys who are very familiar with Mr. Van Poyck’s case in the very recent past. E.g., Gerald Bettman and Jeffrey Davis have represented Van Poyck in many of Van Poyck’s cases, including as recent as 2011 (Davis in Federal Court) and 2012 (Bettman in this Court). Yet, I find it unsettling that the majority is intent on not granting a reasonable stay — 30 days — for these attorneys, or some other court-appointed lawyers to have time to determine whether there are any justiciable issues that may be legitimately explored prior to the culmination of the pending death warrant signed by the Governor. There is little excuse why this Court should blindly ignore the fact that counsel has knowingly and willingly admitted that it cannot meet its constitutionally required duty to provide ineffective representation of this defendant.

I cannot ignore that Van Poyck, and every other person subject to the laws of this State, is deserving of this Court’s guard of his constitutionally — protected rights — including the right to effective assistance of counsel. To the extent that the majority has concerns that granting a stay of execution in this case will detrimentally affect the finality and stability of this Court’s jurisprudence, such concern is unfounded and unwarranted. This Court must ensure that the proper steps are taken, under the circumstances, in every case where the Governor has signed a death warrant, because the sentence of death is different and final. Accordingly, I respectfully dissent to extent that the majority’s decision denies a reasonable stay of execution in this case.

PARIENTE, J., concurs.

William Van Poyck is a prisoner under sentence of death and under an active death warrant, which was signed by the Governor on May 3, 2013. The date of execution is set for Wednesday, June 12, 2013, at 6:00 p.m. On May 15, 2013, Gerald Bettman filed his Notice of Appeal of the circuit court’s Order on Hearing to Determine Counsel and Amended Order on Case Management Hearing, and the State moved to dismiss the Notice of Appeal on May 16, 2013. We deny relief sought by Mr. Bettman in his Notice of Appeal. We also deny, as moot, the State’s Motion to Dismiss.

On May 15, 2013, Jeffrey Davis, on behalf of himself and the law firm of Quarles & Brady LLP, filed a Motion to Withdraw in the Absence of Stay; and on May 16, 2013, the State filed its response. On May 15, 2013, Mark Olive filed his Motion to Withdraw in the Absence of Measures to Assure Compliance with Florida Rules of Professional Conduct; on May 16, 2013, the State filed its response, and on May 16, 2013, Mr. Olive filed his reply. On May 17, 2013, Mr. Davis and Mr. Olive each filed a Notice of Inability Ethically to Satisfy the Lower Court’s Schedule. We deny Mr. Davis and Mr. Olive’s motion(s) to withdraw. Gerald Bettman, Jeffrey Davis, and Mark Olive remain as counsel for Mr. Van Poyck.

We deny the request for a stay of Mr. Van Poyck’s execution. Noticeably absent from these recent filings is any substantive reason for granting a stay. We do, however, amend the scheduling order for any proceedings that may come before this Court as follows:

All proceedings pending in the trial court, if any, shall be completed and orders entered by 4:00 p.m., Wednesday, May 29, 2013. The notice of appeal shall be filed by 9:00 a.m., Thursday, May 30, 2013. The record on appeal shall be filed by noon, Friday, May 31, 2013. The initial brief on the merits shall be filed by 9:00 a.m., Monday, June 3, 2013. The answer brief on the merits shall be filed by 4:00 p.m., Tuesday, June 4, 2013. The reply brief on the merits shall be filed by noon, Wednesday, June 5, 2013. Oral argument, if necessary, will be scheduled at 9:00 a.m., Thursday, June 6, 2013.

Filing of the above briefs to this Court and to opposing counsel shall be via e-mail to the following address: warrant@ flcourts.org. Per this Court’s Administrative Order In Re: Electronic Filing in the Supreme Court of Florida Via the Florida Courts E-Filing Portal, AOSC13-7, dated February 18, 2013, counsel are directed to file pleadings with this Court through the Portal starting April 1, 2013. However, we direct that counsel for the parties file all pleadings in the above listed case via email to the following address: warrant@ flcourts.org and not through the Portal.

Copies of any pleadings filed by counsel in the trial court and the federal courts shall be sent via email simultaneously with filing in the other courts to the following address: warrant@ flcourts.org.

We deny the Motion for Leave to File Amicus Brief by Talbot D’Alemberte and Florida Association of Criminal Defense Lawyers.

No motion for rehearing will be entertained by the Court.

It is so ordered.

POLSTON, C.J., and LEWIS, CANADY, and LABARGA, JJ„ concur.

QUINCE, J., concurs with the majority’s decision that Gerald Bettman, Jeffrey Davis, and Mark Olive remain as counsel, but dissent from the decision denying a stay.

PERRY, J., concurs in part and dissents in part with an opinion, in which PARIENTE, J., concurs.