Provenzano v. State

760 So. 2d 137, 2000 WL 674703
CourtSupreme Court of Florida
DecidedMay 25, 2000
DocketSC99-32
StatusPublished
Cited by10 cases

This text of 760 So. 2d 137 (Provenzano v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Provenzano v. State, 760 So. 2d 137, 2000 WL 674703 (Fla. 2000).

Opinion

760 So.2d 137 (2000)

Thomas H. PROVENZANO, Appellant,
v.
STATE of Florida, Appellee.

No. SC99-32.

Supreme Court of Florida.

May 25, 2000.

*138 Michael P. Reiter, Chief Assistant CCRC, Capital Collateral Regional Counsel-Middle Region, Tampa, Florida, for Appellant.

Robert A. Butterworth, Attorney General, Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, Florida, and Carol M. Dittmar and Kenneth S. Nunnelley, Assistant Attorneys General, Tampa, Florida, for Appellee.

PER CURIAM.

Thomas H. Provenzano appeals an order entered by the circuit court finding him competent to be executed. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm the circuit court's order.

In June of 1999, the Governor signed a death warrant for Provenzano and set the execution for Wednesday, July 7, 1999. On Monday, July 5, 1999, Provenzano submitted filings to the Governor, wherein he claimed that he was incompetent to be executed. As required by statute, the Governor stayed the execution on Tuesday, July 6, 1999 (the day before the execution was to take place), and appointed a commission of three psychiatrists to examine Provenzano. After receiving the report of the commission, the Governor determined that Provenzano had the mental capacity to understand the nature of the death penalty and the reasons why it was imposed upon him. The Governor lifted the stay and reset the execution for Wednesday, July 7, 1999.

Subsequently, Provenzano filed a motion for a hearing on his incompetency claim in the circuit court pursuant to Florida Rule of Criminal Procedure 3.811. In order to give the circuit court time to consider the motion, this Court stayed Provenzano's execution until Friday, July 9, 1999. On Wednesday, July 7, 1999, the circuit court denied Provenzano's motion without a rule 3.812 hearing. On Thursday, July 8, 1999, this Court granted a stay of execution and directed the parties to submit briefs concerning the constitutionality of the electric chair and the procedures for obtaining a Florida Rule of Criminal Procedure 3.812 hearing. The question regarding the constitutionality of the electric chair has since been resolved. See Provenzano v. Moore, 744 So.2d 413 (Fla.1999) (holding that electrocution is not unconstitutional); Ch. 00-2, §§ 1-2, Laws of Fla. (providing inmates with a choice between lethal injection and electrocution) (signed into law by the Governor on Jan. 14, 2000); Sims v. State, 754 So.2d 657 (Fla.2000) (holding that the retroactive application of the choice statute *139 did not violate the Ex Post Facto clauses of the state and federal constitutions).

In Provenzano v. State, 751 So.2d 37 (Fla.1999), this Court reversed the circuit court's July 7, 1999, order and remanded for an evidentiary hearing on the issue of Provenzano's competency to be executed, pursuant to rule 3.812. The circuit court subsequently held a rule 3.812 hearing, but refused to grant Provenzano a continuance in order to allow Dr. Patricia Fleming, a key mental health expert, the opportunity to testify. Therefore, in Provenzano v. State, 750 So.2d 597 (Fla.1999), this Court again remanded this case to the circuit court in order to allow Dr. Fleming a reasonable opportunity to testify.

As a result of this Court's most recent remand, the circuit court held further proceedings. Dr. Fleming was given the opportunity to testify, as well as other witnesses from both the State and the defense. In fact, at the close of all the evidence, counsel for Provenzano stated on the record that he had presented everything that he had to offer on behalf of Provenzano. Thereupon, the circuit court entered an order finding Provenzano competent to be executed. That order is the subject of this appeal.

The United States Supreme Court has concluded that the death penalty serves two important purposes: retribution and deterrence of capital crimes by prospective offenders. See Gregg v. Georgia, 428 U.S. 153, 183-86, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion). "[A] state can only execute a condemned prisoner if it contributes to these [two purposes]." Martin v. Dugger, 686 F.Supp. 1523, 1569 (S.D.Fla.1988), aff'd, 891 F.2d 807 (11th Cir.1989). In Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the Supreme Court held that the execution of a defendant who becomes incompetent after conviction is prohibited by the Eighth Amendment of the United States Constitution. The Court did not set forth the standard for determining incompetency. However, Justice Powell, in his concurring opinion, did provide guidance:

Florida requires the Governor to stay executions of those who "d[o] not have the mental capacity to understand the nature of the death penalty and why it was imposed" on them. A number of States have more rigorous standards, but none disputes the need to require that those who are executed know the fact of their impending execution and the reason for it.
Such a standard appropriately defines the kind of mental deficiency that should trigger the Eighth Amendment prohibition. If the defendant perceives the connection between his crime and his punishment, the retributive goal of the criminal law is satisfied. And only if the defendant is aware that his death is approaching can he prepare himself for his passing. Accordingly, I would hold that the Eighth Amendment forbids the execution only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.

477 U.S. at 421-22, 106 S.Ct. 2595 (Powell, J., concurring) (citations omitted) (footnote omitted). In Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), a majority of the Court subsequently agreed with the minimal standard articulated by Justice Powell. See id. at 333, 109 S.Ct. 2934 (stating that defendants who are "unaware of the punishment they are about to suffer and why they are to suffer it" cannot be executed) (quoting Ford v. Wainwright, 477 U.S. at 422, 106 S.Ct. 2595 (Powell, J., concurring)). In Martin, Judge King offered additional guidance:

Similar to th[e] retributive purpose analysis, the execution of a prisoner without an appreciation of the connection between his crime and punishment would be a disservice to the deterrence aspect of capital punishment. The essence of this deterrence purpose is the rational concept that if you do this act *140 society considers heinous you will be killed; that is, society will make you an example to others so that their acts conform to the accepted standards of humanity. The execution of a person who cannot appreciate the connection between his crime and punishment would be tantamount to an act of inhumanity....
If both purposes behind the death penalty are to be served, and, therefore, the sentence is to be carried out in accordance with the eighth amendment, the defendant must at least appreciate the connection between his crime and punishment.

686 F.Supp. at 1570.

Florida has adopted the Eighth Amendment standard announced by Justice Powell in Ford. See

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Simmons v. State
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Johnston v. State
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Johnson v. State
804 So. 2d 1218 (Supreme Court of Florida, 2001)
In Re Thomas Harrison Provenzano
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Provenzano v. State
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