THURSDAY, MARCH 4,2010
CASE NO.: SCI0-356
Lower Tribunal No(s).: CR83-5401
DAVID EUGENE JOHNSTON vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
The execution ofDavid Eugene Johnston, scheduled for 6:00 p.m.,
Tuesday, March 9,2010, is hereby stayed pending further order ofthis Court.
Tuesday, March 9,2010, is hereby stayed pending further order ofthis Court.
David Eugene Johnston, a prisoner under sentence of death and under an
active continuing death warrant signed by Governor Charlie Crist setting the
execution for March 9,2010, appeals the circuit court's order summarily denying
his sixth successive motion for postconviction relief, which was filed pursuant to
Florida Rule of Criminal Procedure 3.851. Because the order concerns
postconvictionrelieffrom a sentence ofdeath, this Court hasjurisdictionunder
article V, section 3(b)(1), ofthe Florida Constitution. Having reviewed the
record in this case, including prior proceedings, we reverse the summary denial
ofJohnston's newly discovered evidence claim relating to mental retardation and
temporarily relinquish jurisdiction to the circuit court for thirty days for an
evidentiary hearing to be held on the issue of whether newly discovered evidence
indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536
active continuing death warrant signed by Governor Charlie Crist setting the
execution for March 9,2010, appeals the circuit court's order summarily denying
his sixth successive motion for postconviction relief, which was filed pursuant to
Florida Rule of Criminal Procedure 3.851. Because the order concerns
postconvictionrelieffrom a sentence ofdeath, this Court hasjurisdictionunder
article V, section 3(b)(1), ofthe Florida Constitution. Having reviewed the
record in this case, including prior proceedings, we reverse the summary denial
ofJohnston's newly discovered evidence claim relating to mental retardation and
temporarily relinquish jurisdiction to the circuit court for thirty days for an
evidentiary hearing to be held on the issue of whether newly discovered evidence
indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536
U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherty v. State,
959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this
appeal until jurisdiction returns to this Court after the relinquishment.
959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this
appeal until jurisdiction returns to this Court after the relinquishment.
The parties and the trial court shall proceed in an expedited manner, and
an evidentiary hearing on Johnston's Motion to Vacate Judgments of Conviction
and Sentences with Special Request for Leave to Amend shall be held and an
order entered within thirty days ofthis order.
an evidentiary hearing on Johnston's Motion to Vacate Judgments of Conviction
and Sentences with Special Request for Leave to Amend shall be held and an
order entered within thirty days ofthis order.
The court reporters shall have ten days after completion ofthe above
proceedings in which to file any transcripts with the trial court clerk, and the trial
court clerk shall have five days after receipt ofthe transcripts in which to file a
record ofthe entire relinquishment proceeding with this Court. Per this Court's
proceedings in which to file any transcripts with the trial court clerk, and the trial
court clerk shall have five days after receipt ofthe transcripts in which to file a
record ofthe entire relinquishment proceeding with this Court. Per this Court's
CASE NO. SCI0-356
PAGE 2
Administrative Order In Re: Mandatory Submission ofElectronic Copies of
Documents, AOSC04-84, dated September 13,2004, the court reporters are
directed to transmit a copy ofany transcripts, in addition to paper copies, in an
electronic format as required by the provisions ofthat order. The electronic
version for this Court shall be submitted to the following e-mail address:
e-file@flcourts.org.
Documents, AOSC04-84, dated September 13,2004, the court reporters are
directed to transmit a copy ofany transcripts, in addition to paper copies, in an
electronic format as required by the provisions ofthat order. The electronic
version for this Court shall be submitted to the following e-mail address:
e-file@flcourts.org.
Counsel for the parties are hereby directed to file status reports with this
Court every thirty days as to the progress ofthe relinquishment proceeding.
Court every thirty days as to the progress ofthe relinquishment proceeding.
*THE COVERSHEET SHALL REFLECT "SUPPLEMENTAL RECORD VOLUME
1, ETC." AND PAGE NUMBERING SHOULD START WITH
PAGE 1 AND RUN CONSECUTIVELY.
1, ETC." AND PAGE NUMBERING SHOULD START WITH
PAGE 1 AND RUN CONSECUTIVELY.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., dissent.
CANADY and POLSTON, JJ., dissent.
A True Copy
Test:
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Clerk. Suprelne COUlt
Seal of the Florida Supreme Court
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Served:
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Served:
JEFFREY L. ASHTON
D. TODD DOSS
KENNETH S. NUNNELLEY
HON. BELVIN PERRY, JR., CHIEF JUDGE
HON. LYDIA GARDNER, CLERK
HON. CHARLIE CRIST, GOVERNOR
HON. WALTERA.MCNEIL, WARDEN
KENNETH S. NUNNELLEY
HON. BELVIN PERRY, JR., CHIEF JUDGE
HON. LYDIA GARDNER, CLERK
HON. CHARLIE CRIST, GOVERNOR
HON. WALTERA.MCNEIL, WARDEN
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