IN THE SUPREME COURT OF FLORIDA

NO. SC05-2217

MICHAEL COLEMAN,

Petitioner,

v.

THE STATE OF FLORIDA,

Respondent.

EMERGENCY PETITION SEEKING REVIEW OF NON-FINAL ORDER

IN DEATH PENALTY POST-CONVICTION PROCEEDINGS

MARTIN J. MCCLAIN

Florida Bar No. 0754773

McClain & McDermott

Attorneys at Law

141 N.E. 30th Street

Wilton Manors, FL 33334

(305) 984-8344

Counsel for Mr. Coleman

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Petitioner, Michael Coleman, through undersigned counsel,

petitions this Court for review of the circuit court order of

November 21, 2005, denying undersigned counsel’s request that

the Department of Financial Services pay his attorney fees

associated with the mental retardation proceedings to be

conducted in the circuit court pursuant to this Court’s remand

order dated September 23, 2005.

I. JURISDICTION

This is an original proceeding under Rule 9.142(b) of the

Florida Rules of Appellate Procedure. This Court has original

jurisdiction pursuant to Art. V, sec. 3(b)(8), Fla. Const.

Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978).

II. HISTORY AND STATUS OF PROCEEDINGS BELOW

Mr. Coleman is under a sentence of death. His case is

currently pending in the Circuit Court of the First Judicial

Circuit in and for Escambia County.

Mr. Coleman was initially indicted on four counts of

first degree murder, one count of attempted first degree

murder, six counts of kidnaping, two counts of sexual battery,

one count of conspiracy to commit possession or transfer of

more than 400 grams of cocaine, one count of burglary, and two

counts of robbery (R2106). On May 22, 1989, Mr. Coleman’s

trial commenced. He was convicted of all counts. The jury

recommended advisory sentences of life (R2446). The trial

court overrode the jury's recommendation and sentenced Mr.

Coleman to death (R2609-14). On direct appeal, the Florida

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114 S.Ct. 321 (1994).

During the next several years, Mr. Coleman was not

provided any substantive legal representation, as the courts

and the Capital Collateral Representative debated who would

represent Mr. Coleman. Mr. Coleman filed a Motion to Vacate

Judgment and Sentence on March 24, 1997. Mr. Coleman was

provided with a registry attorney, Maria Laverde. She amended

the motion to vacate on February 3, 2000 (PC-R. 349). An

evidentiary hearing was conducted in January of 2001. In late

2003, Ms. Laverde filed a motion seeking to be discharged as

Mr. Coleman’s counsel. In April of 2004, the circuit court

appointed Baya Harrison as Mr. Coleman’s new registry

attorney. Thereafter, the motion to vacate was denied on July

16, 2004. Mr. Coleman’s appeal of the denial of relief was

filed by Mr. Harrison.

While his appeal was pending before this Court, Mr.

Coleman’s family retained undersigned counsel to handle Mr.

this Court’s assistance in locating and obtaining Mr.

Coleman’s files and records from his prior attorneys.

Undersigned counsel also discovered that at the 2001

evidentiary hearing evidence was presented that Mr. Coleman

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contained in the record, undersigned counsel filed a motion

seeking relinquishment of jurisdiction in order to permit

presentation of a claim that Mr. Coleman was mentally retarded

and that his execution was precluded by the Eighth Amendment.

Undersigned counsel also filed a motion with this Court

seeking an order requiring the Department of Financial

Services to pay unanticipated costs associated with the

appeal. Specifically, undersigned counsel had discovered that

the record on appeal was incomplete and had sought to have the

record supplemented with the missing documents. After this

Court ordered supplementation, the clerk of the circuit court

supplemented the record with 899 pages of material. The clerk

notified undersigned counsel that in order for him to receive

a copy of the supplemental record on appeal, he would have to

pay $910.25.

that Mr. Coleman had diligently sought to present his mental

retardation claim. Mr. Coleman’s first registry attorney, Ms.

Laverde, sought to raise mental retardation as a bar to his

execution in February of 2002, within one year of the

enactment of Section 921.137, Fla. Stat. (2001). Later in

Ms. Laverde was replaced as registry counsel, her successor,

Baya Harrison, purported to withdraw Mr. Coleman’s claim.

This was done without Mr. Coleman’s knowledge or consent. As

has been revealed in the proceedings on undersigned counsel’s

motion to obtain Mr. Coleman’s attorney files, Mr. Harrison

had not obtain the mental health records from Ms. Laverde that

support Mr. Coleman’s retardation claim when he filed to

withdraw the claim.

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On September 23, 2005, this Court issued orders

relinquishing jurisdiction on undersigned counsel’s motion for

transfer of Mr. Coleman’s files, his motion for payment of

costs and expenses, and on his motion for a determination of

Mr. Coleman’s mental retardation. During the ensuing

proceedings in circuit court, undersigned filed a new motion

for costs on or about November 2, 2005. In this motion,

undersigned counsel asserted:

10. Here, Mr. Coleman was previously

represented by registry counsel. The registry

counsel withdrew from the case when Mr. Coleman’s

family hired the undersigned to handle the appeal

before the Florida Supreme Court. It had been

assumed that not only had the cost of preparing the

record on appeal been taken care of, but also copies

of all circuit court pleadings had been maintained by

registry counsel. It had also been assumed that no

additional proceedings in circuit court would be

necessary. Unfortunately, all of these assumptions

proved to be in error.

11. Under the circumstances, Mr. Coleman seeks

an order directing the Department of Financial

Services to pay the costs associated with the

preparation of a supplemental record that included

899 pages of material filed in circuit court that was

not included in the record on appeal previously

submitted and paid for by the State, and to pay the

costs associated with the mental retardation

proceedings before this Court, including attorney

fees.

Motion at 5 (Appendix A). This motion was served on the

Department of Financial Services. The Department did not file

a written response to the motion. However, the Department was

represented at the hearing on the motion that occurred on

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hearing, Mr. Thurber expressed the Department’s willingness to

pay reasonable costs and expenses incurred by the defense, but

the Department opposed either the appointment of undersigned

counsel as registry counsel or the payment of attorney fees.

Though Mr. Thurber stipulated to undersigned counsel’s

qualifications to be appointed as registry counsel, he

indicated that the Department was concerned that undersigned

counsel’s actions constituted an end run around the provisions

of §27.710, and accordingly, the Department opposed either the

appointment of the undersigned or the payment of his attorney

fees.

On November 21, 2005, the circuit court entered its order

denying that portion of the motion seeking the payment of

be paid by DFS.” Order (11/14/05) at 2 (Appendix B)(emphasis

in original). It is this order of the circuit court that Mr.

Coleman petitions this Court to review.

III. REASONS FOR GRANTING PETITION

hearings have been held in the circuit court on October 20th,

November 1st, November 7th, November 14th, November 28th, and

December 8th. However, it was at the November 14th hearing at

which the Department was represented by Mr. Thurber that Mr.

Coleman’s motion at issue in this petition was heard. The

other proceedings concerned undersigned counsel’s ongoing

efforts to locate and secure all of Mr. Coleman’s legal files.

The next hearing is currently set for December 20, 2005.

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Mr. Coleman, through his family, retained undersigned

counsel to represent him during the course of the appeal in

the Florida Supreme Court. After undersigned counsel filed a

motion seeking to be substituted as counsel in Mr. Coleman’s

appeal before this Court, Mr. Harrison sought to withdraw as

counsel. Thereafter, this Court substituted the undersigned

as counsel and permitted Mr. Harrison to withdraw.

However, at the time that undersigned counsel was hired

to represent Mr. Coleman, it was understood that proceedings

were over in circuit court, that the case was pending in the

Florida Supreme Court, and that the full record on appeal had

been prepared and submitted. It was not anticipated that the

record on appeal was incomplete because the prior registry

attorney had failed to designate the full record. Nor was it

was anticipated that prior registry counsel had sought to

withdraw Mr. Coleman’s mental retardation claim without

obtaining all of Mr. Coleman’s mental records of his

predecessor counsel, and that as a result, a remand for a

negotiated fee for representation of Mr. Coleman in his appeal

of the denial of Rule 3.850 relief simply did not cover

additional proceedings in circuit court, nor could it have

been expected to - the circumstances found by the undersigned

when he was substituted as counsel were entirely unforseen.

counsel, that created the difficulty. He attempted to waive a

claim without obtaining all of the files and records from

predecessor counsel.

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However, when counsel discovered that Mr. Coleman had

been tested and received an IQ score of 67, he felt both

obligated as Mr. Coleman’s counsel and as an officer of the

court to notify this Court. By filing with this Court for a

determination of Mr. Coleman’s mental retardation, undersigned

did not commit himself to represent Mr. Coleman in such

When this Court remanded for an evidentiary hearing to

determine whether Mr. Coleman is mentally retarded, it

relinquished jurisdiction for a period of 180 days. An

evidentiary hearing addressing Mr. Coleman’s mental

retardation claim will undoubtedly require a considerable

number of attorney hours. The circuit court by virtue of its

ruling will require either that counsel donate his time on a

circuit court. He simply cannot afford the former, and the

denying attorney fees is allowed to stand, Mr. Coleman will be

materially injured if undersigned counsel is forced to

withdraw as his counsel in circuit court. Moreover,

resolution of Mr. Coleman’s mental retardation claim will be

the problems will multiply. Given that he has been retained

for purposes of the appeal pending in this Court, the

undersigned will remain as counsel for appellate purposes and

will need to retain copies of Mr. Coleman’s files and records.

However, the circuit court will be obligated to appoint new

counsel who will need an additional copy of the files and

records.

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significantly delayed. Accordingly, Mr. Coleman seeks review

of the circuit court’s decision.

WHEREFORE, Petitioner, Michael Coleman, by and through

the undersigned counsel, respectfully urges that the Court

enter an order to show cause, and thereafter vacate the

November 21, 2005, order of the circuit court denying Mr.

Coleman’s request that the Department of Financial Services

pay Mr. Coleman’s attorney fees in circuit court.

Respectfully submitted,

_______________________

MARTIN J. MCCLAIN

Fla. Bar No. 0754773

McClain & McDermott, P.A.

Attorneys at Law

141 N.E. 30th Street

Wilton Manors, FL 33334

(305) 984-8344

Counsel for Mr. Coleman

I HEREBY CERTIFY that a true copy of the foregoing

pleading has been furnished by United States Mail, first class

postage prepaid, to the Honorable Nickolas P. Geeker, Circuit

Judge, First Judicial Circuit of Florida, M.C. Blanchard

Building, 190 Governmental Center, Pensacola, FL 32502,

William J. Thurber, IV, Assistant General Counsel, Department

of Financial Services, 200 East Gaines Street, Tallahassee, FL

32399-0355, on December 16, 2005.

MARTIN J. McCLAIN