CHIEF JUSTICE: GOOD MORNING ONCE AG AIN . THE LAST CASE ON THIS MORNING'S DOC KET IS McDONALD VERSUS STATE OF FLORIDA. MR . CANNON, ARE YOU READY TO PROCEED?

MADAM CHIEF JUSTICES AND ASSOCIATE JUSTICES , MY NAME IS PETER CANNON FROM C CRC ON BEHALF OF MR. McDONALD.

CHIEF JUSTICE: BEFORE WE START YOUR ARGUMENT , ARE YOU , DID YOU FILE THE BRIEF I N THIS CASE ? DID YOU FILE THE BRIEF IN THIS CASE?

YES, I DID .

CHIEF JUSTICE: OKAY. DID YOU ASSERT THAT THE COURT HAS N O RECORD OF THE FERETTA INQUIRY ?

THAT WAS LATER CO RRECTED TO SUPPLEMENTAL PLEADINGS. THAT STATEMENT IN ITS ELF , THAT ONE TI NY STATEMENT IS INCORRECT.

CHIEF JUSTICE: IN FACT THIS INVOLVES A FE RETTA INQUIRE AND JU DGE SU SAN SCHAEFFER WHO HAS A VERY EXTENSIVE INQ UIRY , INCLUDINGTHE STATEMENT THAT I AM GOING TO TEL L YOU NEW THE STRONGEST TERMS , I REALLY WISH YOU WOULDN'T DO IT , BECAUSE I THINK IT IS DANGEROUS.I THINK YOU WOULD RECEIVE BETTER REPRES ENTATION FROM A LAWYER. I THINK YOU HAVE A BETTER CHANCE OF SUCCEEDING , AND SHE GO ES ON AND ON , SO THERE IS A VERY E X TENSIVE FERETTA INQUIRY IN THIS CASE .

CORRECT AND THAT WAS LATER SUPPLEMENT ED TH ROUGH PLEADINGS AND MO TIONS. I FO UND OUT WHERE IT WAS.

JUSTICE: L ET ME AS K YOU THIS BEFORE YOU EVEN GET STARTED. DURING THE COURSE OF THIS , YOU WERE , WHAT , THE STAND-BY COUNSEL?

CORR ECT.

JUSTICE: WAS IT YOU PERSONALLY?

FOR A PORTION OF THE TIME. F ROM THE HEARING .

JUSTICE: DID YOU IN AN Y WAY REALLY ASSIST MS. McDONALD?

MARGINALLY. IT IS DIFFICULT, AN ISSUE OR NOT AN ISSUE. IT IS HYBRID REPRESENTATION UNDER CHA PTER 27. I AM NOT REALLY SURE IF THAT IS APPROPRIATE , BUT THAT IS REALLY NOT A PART OF THE FERETTA.IT WAS VERY DIFFICULT IN THIS SITUATION, TO --

JUSTICE: THIS IS A LITTLE UNUSUAL, THAT IS THAT WE SEE CASES WHERE DEFENDANTS JUST SAY I DON'T WANT TO DO ANYTHING ELSE. AND WE HAVE HAD A NUMBER OF THOSE , AND REALLY HAVE DEVELOPED THE PROCEDURES . HAVE YOU SE EN ANY OTHER CASE WHERE THE DEFENDANT IN POSTCONVICTION PROCEEDINGS INSISTS O N HI MSELF -- ON SELF REPRESENTATION UNDER CIRCUMSTANCES LIKE THIS, AND WE HAVE WORKED OUR WAY THROUGH THAT ? HAVE YOU BEEN ABLE TO FI NDANY OTHER CASE IN WHICH --

I AM REALLY NOT AWARE OF ONE.THERE IS MEN TION IN THERECORD THAT THERE WAS ANOTHER CASE OUT THERE. I WASN'T SURE THE NAME OR WHO THE DEFENDANT WAS OR HOW THAT WORKED OUT.

JUSTICE: I THINK THERE IS A CASE CALLED BELL. WHICH THIS WAS THE --

I DO FO LLOW APOLOGIZE. BUT REALLY -- -- I DO APOLOGIZE . BUT REALLY --

JUSTICE: TELL US AS BE STYOU CAN OR GIVE US YOUR POSITION OF HOW THAT FITS INTO THIS COURT'S OV ERALL SCHEME OF TRY ING TO MAKE THESE POSTCONVICTION PROCEEDINGS AS E FFECT I HAVE AND EF FICIENT -- AS EFFECTIVE AND HE HAVE IRBT AS POSSIBLE , AND WHAT - - AND EFFICIENT AS POSS IBLE , AND WHAT YOUR POSITION IS HERE,BECAUSE AT THE OUTSET OBVIOUSLY , IT APP EARS IF WE CAN APPROVE SOMEONE DROPPING EVERYTHING ENTIRELY, THEN IT WOULD APPEAR THERE IS NO ADEQUATE INQUIRY AS HAS BEENAL ALLUDED TO HERE, THAT THE DEFENDANT SHALL -- HAS BEEN LEWDED TO HERE, THAT THE DEFENDANT SHALL NOT -- HAS BEEN ALLUDED T O HERE,THAT THE DEFENDANT SHALL NOT BE ALLOWED TO -- THAT THE DEFENDANT SHALL BE ALLO WED TO REPRESENT HIMSELF IN COURT AND POSTCONVICTION PROCEEDINGS , ANYWAY , S O RT OF ASKING YOU AN OPEN ENDED QUESTION OF WHERE THIS FITS IN WITH THE OVERALL SCHEME HAD, IN TERMS OF OUR RESPONSIBILITY IN DE ATH PENALTY PROCEEDINGS.

SURE. GREAT. AND THAT IS AN ANALOGY THAT WE D O STRUGGLE WITH .

JUSTICE: WHY SHOULDN'T W E APPROVE A DEFENDANT'S SELF REPRESENTATION IN CIRCUMSTANCES LIKE THIS WHERE APPARENTLY ALL OF THE SAFEGUARDS WERE EXERCISED?

WELL , I WOULD ARGUE THAT THE SAFEGU ARDS WERE NOT THERE , AND BASED ON THE N ATURE OF THESE PROCEEDINGS .

JUSTICE: W HAT WAS MISS SOMETHING.

LET ME START IT THIS WAY, IF AN INDIVIDUAL WANTS TO WAIVE HIS APPEAL AND ELECT BASICALLY TO DROP THE M AND BE EXECUTED , THAT IS A LITTLE DIFFERENT. FERETTA ITSELF TALKS ABOUT THE WAIVER OF THE RI GHT TO COUNSEL IS NOT AN ABSOLUTE R IGHT. IT IS CONDITIONAL. AND ONE OF THE THINGS THAT THE COURT HAS TO LOOK A T IS WHETHER THE COURTROOM PROCEDURE IS FOLLOWED, THERULES OF PROCEDURE AND SO F ORTH , TO MAKE SURE THAT THE CASE IS PROCEEDING AS IT SHOULD UNDE R THE R ULES . WE DO HAVE A VERY EFFICIENT SYSTEM, BECAUS E OF THIS COURT AND THE VARIOUS COMMITTEES, FOR HANDLING THESE POST CONVICTION CASES , STARTING FROM APPOINTMENT , DEALING WITH PUBLIC RECORD S,WE HAVE BEEN ABLE TO RESOLVETHAT PROBLEM NOW. WE HAVE A C ENTRAL REPOSITORY AND SO FORTH, AND THEN WE HAVE A SYSTEM WHERE WE CANASK FOR ADDITIONAL RECORDS. WE HAVE A HUFF HEARING , EVIDENTIARY HEARING. IT IS VERY EFFI CIENT NOW BUT IT TA KES A LOT OF TRAINING TO UNDERSTAND T HE IN S AND OUTS OF THIS S YSTEM , AND IT REQUIRES A LOT OF LE GA L KNOWLEDGE.MR. Mc DONALD DID COME IN AFTER HIS MOTION, A FTER THE ORIGINAL 3.851 WAS FILED, SO H E DID NOT HAVE TO D EAL WITH A LOT OF THE , I G UESS , RECORDS QUESTIONS THAT WE MAY HAVE AS COUNSEL , DEA LING WITH RECORDS FROM THE VARIOUS AGENCIES AND ADDITIONAL RECORDS. H OWEVER , MADAM CH IEF JUSTICE, YOU POINTED OUT THAT JUDGE SCHAEFFER DID DO A FERETTA INQUIRY AND IT WAS RATHER LONG AND ELABORATE , BUT WHAT HAPPENED IMMEDIATELY AFTER THAT WHEN WE PROCEEDED TO THE HUFF HEARING IN WHICH I WAS STAND-BY COUNSEL AT THAT TIME, IT BECAME APPA RENT THAT MS. McDONALD WAS NOT COMPETENT AND THIS IS NOT COMPETENCY MENTALLY , THATSHE WAS NOT COMPETENT TO HANDLE HIS APPEAL. RIGHT AWAY THE FIRST THING HE DOES IS ASK FOR A CONTINUANCE , MAKES SOME VERY CRITICAL MISTAKES. THE COURT IS OFTEN CONFUSED . JUDGE SCHAEFFER WAS VERY P ATIENT WITH MR . McDONALD. HOWEVER, HE WAS VERY CON FUSED AS TO THE CLAIMS. WHAT WAS MR . McDO NALD ASKING FOR .

JUSTICE: BUT THE COMPETENCY ISSUE HAS NEVER BEEN THAT A P R IVATE CITIZEN IS GOING TO HAVE THE EDUCATION, BACKGROUND AND TRAINING OF A LAWYER, SO I MEAN, I THOUGHT THIS WAS CROSSED WITH RE GARD TO THE FERETTA INQUIRIES AND ALL OF THOSE AND THE RIGHT OF SELF REPRESENTATION, BECAUSE YOU NEVER IN ANY OF THEM , ARE GOING TO FIND SOMEONE WHO , WITHOUT THE TRA INING , AND YOU CAN'T EX PECT THEM TO , SO I AM MISSING WHERE YOU ARE GOING WITH THE COMPETENCY AND EVERYTHING, BECAUSE YOU KNOW THEY ARE NOT. THAT IS A FUNDAMENTAL PREMISE.

CORRECT, AND I DO WANT TO MAKE A DISTINCTION THAT THIS IS NOT A REGULAR CASE, ANDIT IS NOT EVEN A REGU LAR DEATH PE NALTY TR IAL CASE , POSTCONVICTION CASE COULD BE AND CAN BE IN A PRACTICAL SENSE AND A LEGAL SE NSE , MORE COMPLICATED , AND LET ME J UST USE A PRA CTICAL SENSE TO SORT OF HELP THE COURT. WE KN OW THAT W E RECE IVED REC ORDS FROM THE C E NTRAL REPOSITORY FOR ALL OF OUR CLIENTS , AND INDIVIDUALS PRO SE ON DEATH ROW AT UNION CORRECTIONAL, WOULD NOT HAVE ACCESS TO THAT. I T WOULD BE VERY DIFFICULT. WE WOULD HAVE TO CH ANGE A LOT OF THE PROCEDURES AND RULES BECAUSE THESE RECORDSCOME IN LA RGE BOXES AND ALSO THE RECORDS FROM THE REPOSITORY COME ON A CD-ROM .

JUSTICE: LET ME ASK YOU AQUESTION. WHEN JUDGE SHAFER --

CHIEF JUSTICE: JUSTICE LEWIS.

I AM MISSING THE ANALOGY BECAUSE ALSO AT THE ORIGINAL TRIAL , THE DEFENDANT IS INCARCERATED AND DOES NOT NECESSARILY HAVE FREE MOVEMENT TO INTERVIEW WITNESSES AND GO BE YOND THE WAS OF THE INSTITUTION. I AM MISSING THE ANALOGYTHERE.

WELL , THE AMOUNT OF DISCOVERY, THE A M OUNT OF THE INVESTIGATION, I WOULD SAY , IS DIFFE RENT THAN WHAT THAT TRIAL TRADITIONALLY I N POSTCONVICTION, WE G ATHER MORE DOCUMENTS AND ASK FOR MORE SUPPLEMENTAL RECORDS , AND JUST IN A PRAC TICAL SENSE HO W IT IS DONE , IT IS VIR TUALLY ALMOST IMPOSSIBLE TO DO THAT FROM DEATH ROW. AND WE ARE TALKING BO XE S OF RECORDS , AND FOLKS ON DEATH ROW , I THINK TWO BOXES IS A LL THEY CAN KEEP.

CHIEF JUSTICE: JUSTICEBELL.

IS IT YOUR POSITION THAT JUDGE SHAFER DID NOT ADEQUATELY INFORM ANDDISCUSS HA WITH THE DEFENDANT?

WELL , MY POSITION IS THAT SHE DID DO AN IN ITIAL FERETTA.HOW EVER , THAT DOES NOT END THE COURT'S OBLIGATION. THE COURT SHOULD CONTINUE T O MONITOR THE PROGR ESS OF THE K ATE CASE AND MO NITOR THE -- O F THE CASE AND MON ITOR THE INDIVIDUAL'S COMPETENCE TO PROCEED. MR . McDONALD DOES NOT WANT TO DIE. HE IS NOT WAIVING. HE WANTS --

JUSTICE: SO YOU ARE NOT CHALLENGING THE ADEQUACY OF THE INITIAL FERE TTA IS A BECAUSE ARE TELLING ME.

WELL , I AM ALSO IN A DIFFICULT POSITION, BECAUSE READING THROUG H THAT FERETTA , THAT FEHR ATE IS A FACTUALLY INCORRECT, THE INFORMATIONTHAT I HAVE , NOT BASED ON THE RECORD .

JUSTICE: AND WHEN SHE ASKED YOU OR OTHER C CRC COUNSEL THERE IS THERE ANYTHING EL SE I NE ED TO DO, WHY WASN'T ANYTHING SAID?

I CAN'T ANSWER THAT. IT WOULD BE DIFFICULT PLACING , IF YOU ARE NOT TAKEN OFF THE CASE Y ET AND YOU DON'T KNO W THE RESULTSOF THE FERETTA --

JUSTICE: BUT YOU ARE ASKED BY THE JUDGE IS THERE ANYTHING ELSE THAT I NEED TO S AY OR DO AND THE ATTORNEY IS SILENT, WHY WASN 'T THAT AWAIVER OF ANY COMPLAINT?

I WOULDN'T TREAT THAT AS A WAIVER , AND I , MY UNDERSTANDING, IT MAY BE DIFFERENT OF WHAT JUDGE SCHAEFFER IS ASKING , IS HAVE I CO VERED EVERYTHING LEGALLY . HAVE I GONE THROUGHSUFFICIENT, BUT THERE WERE CERTAIN FACTS THAT I THINKTHAT I WOULD SUBMIT TO THIS COURT THAT ARE I N CORRECT AND REALLY GOES JUST TO THEBASIS OF MR . McDONALD'S EDUCATION. HE DID NOT GO AS FAR AS HE SAID. HE DID NOT HAVE THE WORK EXPERIENCE THAT HE SA ID, ANDI THINK HIS LIFE EXPERIENCE WAS A LI TTLE DIFFERENT THIS. IS A MAN WHO G REW UP IN JAMAICA .

JUSTICE: SO IT WAS HIS REPRESENTATION OF FACTS TO THE COURT NOT THE COURT'S INADEQUATE INQUIRY.

WELL THAT'S CORRECT. THAT WOULD BE HIS REPRESENTATION, I THINK --

JUSTICE: THE PERSON IN THE BEST POSITION TO HAVE MAYBE CORRECTED THAT WOULD BE EITH ER THE DEFENDANT OR HIS COUNSEL.

I AM NOT SURE IF HIS COUNSEL COULD HAVE CORRECTED IT AT THAT POINT .

JUSTICE: LET ME GO TO THE SECOND HURDLE. WHAT CASE LAW DO YOU HAVE FROM THIS COURT OR OTHERWISETHAT THE TRIAL COURT SUND AN OBLIGATION TO DO REPEATED FERETTA -TYPE INQUIR IES ?

WELL , JUST RELYING UP ONTHE RULE 3.11 .D AT EVERY STAGE OF THE POSITION , THERE SHOULD BE RENE WAL OF A REQUEST FOR COUNSEL , BUT --

JUSTICE: WHIC H WAS DON E?

I SHOULD SAY IT WAS DONE BUT IT WAS DONE WHEN JUDGE SCHAEFFER BECAME FRUSTRATED AND SHE STA RTED , I DON'T WANT TO SAY LAMBASTING HIM.

JUSTICE: YOUR COMPLA INT IS NOT THAT SHE DIDN'T OFFER NEW COUNSEL. YOUR COMPLAINT NOW IS THAT THE JUDGE HAS TO MAKE AN INDEPENDENT DETERMINATION OF THE COMPETENCY OF A PRO SE PERSON'S REPRESENTATION OF HIMSELF .

RIGH T, AND STARTING WITH FERETTA AND THE CASE LAW A FTER AND EVEN THE RULE WOULD INDICATE THAT O N CE A PERSON HAS REACHED FERETTA , CROSSED THAT HURDLE , BUTSTILL IT IS NOT ABSOLUTE THAT IF THE PROCESS IS BREAKING DOWN AND IT APPEARS THAT THE INDIVIDUAL IS NOT DOING A GO OD J OB , AND IT IS C LEAR FROM THE RECORD, AND FROM JUDGE SCH AEFFER 'S OWN COMMENTS, THA T MR . McDONALD IS NOT DOING WELL , THAT HE IS A CTUALLY DOING VERY POORLY LY IN HIS REPRESENTATION , THEN -- POO RLY IN HIS REPRESENTATION, THEN THE COURT I WOULD SUBMIT HAS AN OBLIGATION UNDER FERETTA AND UNDER THE RULE, TO STEP IN AND SAY THIS IS NOT WORKING OUT. I NEED TO APPOINT COUNSEL FOR YOU , AND AC TUALLY THE CASE LAW DOES POINT OUT THAT,IF IT IS A CLOSE CALL , THAT THE BEST WAY TO GO IS TO APPOINT COUNSEL. THESE ARE POSTCONVICTION MATTERS , ARE VERY, VERY DIFFICULT.

CHIEF JUSTICE: YOU AREREALLY ASKING FOR A PER SE RULE THOUGH , AND WHY NOT. YOU ARE SAYING POSTCONVICTION AREN'T LIKE DIRECT APPEALS , AND TH ERE ARE LOTS OF RECORDS, AND W E SHOULD HAVE AN ABSOLUTE BAN ON SELF-REPRESENTATION, EVEN THOUGH THERE IS SOME CONSTITUTIONAL IMPLICATIONS TO SUCH A BAN.

WELL , FOR THIS CASE Y AM NOT ASKING FOR A COMPLETE B AN. IT JUST DIDN'T WORK OUT IN THIS CASE, AND I CAN'T --

CHIEF JUSTICE: YOU KNOW , AS JUSTICE LEWIS SAID , APERSON WHO IS NOT TRAINED IN THE LAW AND IS REPRES ENTING HIMSELF , THAT IS NEVER AGOOD IDEA , AND SO IT IS NEVER GOING TO BE AS GOOD , AND THAT IS WHAT JUDGE SCHAEFFER TOLD HIM IN NO UNCERTAIN TERMS, SO I AM HAVING TROU BLE WITH SE EING WHAT MAKES THIS CASE, IF YOU ARE NOT ASKING FOR A PER SE RULE THAT WE SHOULDN'T ALLOW SELF-REPRESENTATION IN POSTCONVICTION CASES, WHAT MAKES THIS CASE CRY OUT FOR A REVERSAL ? IN OTHER WO RDS WHAT WAS DONE W RONG BY JUDGE SCHAEFFER WHO , TO -- JUDGE SCH AEFFER, TO MANDATE A REV ERSAL?

WELL , IF THE COURT WILL IN DUNL , I WOULD LIKE TO JUST -- IND ULGE , I WOULD L IKE TO READ A S MALL PO URS FROM THE RECORD.

JUSTICE: BEF ORE YOU DO THAT, COULD YOU TELL M E DO YOU HAVE ANY CASE LAW THAT YOU SAY SUPPORTS THE POSITION, EI THER OUT OF THE U.S. SUPREME COURT OR OUT OF THIS COURT?

WELL , I WOULD SUBMIT THAT FERETTA , EVEN THO UGH THAT ALLOWED A WAIVER , IS CL EAR AND STATES THAT THE RIGHT TO SELF-REPRESENTATION IS NOT --

JUSTICE: OTHER THAN YOUR ANALYSIS OF FERETTA , IS THERE A CASE PRECEDENT THAT --

C ITED IN MY CASE , BOWERS. I DO APOLOGIZE. I A M MISPRONOUNCING THAT. IT TALKS AB OUT SELF-REPRESENTATION, AND IT DOES NOT AMEND THE RUL E OR IT WASN'T CHANGING IT, JUST INDICATES THAT WHEN THE RULE WAS CHANGED, THAT DEFENDANTS HAVE TO GO INTO THIS KNOWING WHAT THEY ARE G ETTING INTO , AND THAT SELF-REPRESENTATION IS VERY DANGEROUS, BUT I WOULD JUST , THIS IS SOMETHING THAT JUDGE SCHAEFFER STRUGGLED WITH , AND IF I COULD JUST, THE COURT WILL INDU LGE ME FROM THE RECORD , BUT THIS IS D URING THE HUFF HEARING , BUTAT THIS POINT , LISTENING TO A LE GAL ARGUMENT BEING MADE BY A LAY PERSON WHO IS TRYING TO ARGUE THE ME RITS OF THE CASE VER SUS A SKILLEDLAWYER WHO IS MAKING A LEGAL ARGUMENT ON WHY AN EVIDENTIARY HEARING NEED NOT BE GRANTED IS P UTTING ME IN THE VERY POSITION THAT I THINK THE COURT , AND THAT WOULD BE THIS COURT , AT SOME POINT IN TIME NEEDS TO TAKE A LOOK AT, AND THAT IS WHETHER OR NOT WE HAVE ANY BUSINESS DOING, ALLO WING DEFENDANTS TO REPRESENTTHEMSELVES FROM DEATH RO W. THEY DON'T KNOW HOW. IT IS GO ING TO BE EVEN WORSEIF THERE IS A EVIDENTIARYHEARING , AND THEREFORE HE IS NOT GOING TO GET ALL HE IS ENTITLED TO OUT OF HIS 3.850 , SIMPLY BECAUSE HE IS NOT EQUIPPED TO HANDLE THIS LEGALLY. AND YET UNDER FERETTA , HE IS ALLOWED TO WAIVE HIS RIGHT TO COUNSEL AND HE HAS DONE THAT AND HE CONTINUES TO DO THAT. AND THAT IS FROM JUDGE SCHAEFFER. THAT IS BASED ON HER FRUSTRATION.

CHIEF JUSTICE: SHE IS SAYING DEATH ROW COMPLE TELY. I WOULD AS SUME SHE ME ANS ANYBODY WHO WOULD BE PUT T O DEATH SHOULDN'T REPRESENTTHEMSELVES.

I THINK BASED ON EXPERIENCE AND PERHAPS BASED ON MY EXPERIENCE WITH THIS CASE, THAT MIGHT BE , THAT WOULD PROBABLY BE THE MOST PRUDENT RULE. WE ARE REALLY NOT TALKING A BOUT A VERY LARGE CLASS OF DEFENDANTS ANYWAY . WE HAVE A CLASS --

JUSTICE: THAT TYPE OF RULE IS DIRECTLY CONTRARY T O FERETTA! AND TO THIS COURT 'S PRECEDENT APPLY GO-FER ETTA. -- APPLY IN G FERETTA , REGARDLESS OF WHE THER OR NOT WE THINK FERETTA WAS WELL-DECIDED OR NOT WELL-DECIDED, WE ARE B O UND TO RECOG NIZE AND RESPECT THE CONSTITUTIONAL RIGHT OF A PERSON ON DEATH ROW OR OTHERWISE , TO REPRESENTTHEMSELVES.

YOU ARE RIGHT IN ONE SENSE, JUSTICE WELLS. HOWEVER , BUT , THE RIGHT IS NOT COMPLETE, AS WE KNOW THAT THE REASON WHY I AM HERE IS BECAUSE MR . McDONALD DOES NOT HAVE A RIGHT TO REPRESENT HIMSELF BEFORE THIS COURT, AND THAT THIS COURT STATED IN THE D A VIS CASE ON DIRECT APPEAL , THAT HE --

JUSTICE: THAT IS A EXCEPTION THE US S U SPECT CARVED OUT. -- THE U.S. SUPREME COURT COURT CARVED OUT.

RIGHT, BUT THESE ARE USUALLY EXCEPTIONS THAT ARE CAR VED OUT AND IT IS NOT AN ABSOLUTE RIGHT. IN POSTCONVICTION -- CHIEF CHIEF JUSTICE CANTERO HAS A QUESTION AND YOU ARE WELL INTO YOUR REBUTTAL.

JUSTICE: ISN'T THESOLUTION, G IVEN THAT WE HAVE FERETTA, IN A POST CONVICTION CASE WHE RE A DEFENDANT IS ONDEATH ROW , TO MAKE SURE THAT THE DEFENDANT UNDERSTANDS THE LIMITATIONS THAT HE HAS IN REPRESENTING HIMS ELF , BECAUSE HE IS ON D EATH ROW , HE MAY NOT HAVE AC CESS TO MATERIALS . HE MAY BE IN A DIFF ERENT POSITION THAN OTHER PRISONERS.AND JUST TO MAKE SURE I N THE COLLOQUY, THAT THE DEFENDANT UNDERSTANDS ALL THOSE DISADVANTAGE S , AND O N CE THE DEFENDANT IS INFORMED OFTHAT, THAT IS WHAT FERETTAREQUIRES.

WELL , A GAIN , FERETTA IS NOT AN A BSOLUTE RIGHT, AND I DON'T , I WOULD SUBMIT THAT YOU CAN NEVER ADEQUATELY INFORM SOMEONE IN POSTCONVICTION OF ALL OF THEINS AND OUTS THAT NEED TO BE DONE AND ADVANTAGES AND DISADVANTAGES AND IT BECAME ABSOLUTELY CLEAR THAT , ONCE THE FERETTA HEARING WAS OVER , THAT ONCE W E STARTED IN , THIS IS JUST HAD HUFF HEARING AT THE VERY -- JUST H UFF HEARING AT THE VERY BEGINNING , THAT MR . McDONALD WAS CLEA RLY NOT PREPARED TO HANDLE THIS CASE, AND OUR PROCEDURES 3.852, DEALING WITH RECORDS AND SO FO RTH , THERE IS A LOT THAT IS VERY SPECIFIC TO THE CCR C 'S AND TO THE REGISTRY --

CHIEF JUSTICE: IF YOU WANT TO SAVE THE REST OF YOUR TIME FOR REB UTTAL.

YE S, I WOULD. THANK YOU VERY M UCH .

MAY IT PLEASE THIS HONORABLE COURT.YOUR HONORS , MY NAME IS CATHERINE BLAN CO AND I AM WITH THE ATTORNEY GENERALS OFFICE IN TA MP A QUICKLY TO RESPOND JUSTICE PARIENTE, TO YOUR QUESTION WITH REGARD TO WHEN THE RECORD WAS FILED ON THE FERETTA INQUIRY AND IT WAS FILED MARCH 23 OF 2005. IT IS ST YLED SUPPLEMENTAL VOLUME , CC R'S SE COND AM ENDED BRIEF FILED IN JULY 2 00 5 , AND MR. McDONALD DID NOT PROCEED DIRE CTLY FROM A FERETTA INQUIRY STRAIGHT INTO A HUFF HEARING. TO THE CONTRARY, THE SUPPLEMENTAL V OLUME CONT AINS THE TRANSCRIPT OF PROCEEDINGS HE LD IN JANUARY OF 20 01 ON THIS MOTION T O WITHDRAW. APRIL 18 , 2001 , ON THE FERETTA HEARING , AND JULY 25 , 2001 , W HICH WAS THE AC TUAL HUFF HEARING.

CHIEF JUSTICE: SO WAS THIS MISSTATEMENT IN THE BRIEF EVER CORRECTED?

NOT TO MY KNOWLEDGE. I DO NOT BELIEVE THAT THERE WAS A REPLY BRIEF FILED OR ANY CORRECTION.I DO KNOW IN OUR ARGUMENT, WE SA ID THAT IT WAS INCORRECT , BECAUSE IN FACT THE RECORD DID SHOW THE EXTENSIVE COLLOQUY THAT WAS CONDUCTED BY JUDGE SUSAN SCHAEFFER IN PINELLAS COUNTANY THIS CASE .

JUSTICE: WOULD YOU ADDRESS THE BROADER QU ESTION AS WE ARE ALL IN HERE TALKING ABOUT IT NOW , REALLY THERE IS AN EXTREMELY EXTENSIVE FERETTA INQUIRY HERE.

ABSOLUTELY, YOUR HONOR .

JUSTICE: BUT IN T ERMS OF THE , OUR OVERALL TREATMENT OF DEATH PENALTY CASES , WHERE WE REALLY HAVE ENACTED S PECIAL PROCEDURES , AND IT IS POINTED OUT , I BELIEVE , AS AN EX AMPLE THAT WE DO NOT ALLOW DEFENDANTS TO REPRESENT THEMSELVES ON APPEAL . NOW , WE HAVE GOT SOME U.S.SUPREME COURT AUTHORITY TO B ACK THAT UP , BUT WHY WOULDN'T IT BE A BE TTER RULE TO EXTEND THAT PRACTICE TO POSTCONVICTION PROCEEDI NGS , RECOGNIZING , OF COURSE , WE ALWAYS HAVE THE S PECTOR OUT THERE OF DEFENDANTS THAT JUST SAY I DON'T WA NT TO HAVE ANY POSTCONVICTION OR IDON'T WANT TO HAVE ANY WHATEVER. WHY WOULDN'T THAT BE A BETTER RULE , RECOGNIZING THAT THE POSTCONVICTION PROCEEDING IN A SE NSE , IS SORT OF ANOTHER , WH ILE FACT INTENSIVE, IT IS SORT OF ANOTHER STAGE OF WHAT THEY ARE CALLED, POSTCONVICTION PROCEEDINGS.WHY WOULDN'T THAT BE A BETTER RULE THAN TO GET INTO THESE THIN GS NOW WHICH ARE , WE , JUST ALL WE NEED TO DO IS REA D THE RECORD IN THIS CASE AND SEE. WHY WOULDN'T THAT BE A BETTER POLI CY FOR THIS COURT?

THE SHORT ANSWER IS I BELIEVE JUDGE SCHAEFFER SAID BELOW, IT MIGHT BE , Y OUR HONOR. AND HER PERCEPTION WAS THAT THIS IS A STATUTORY RIGHT TO POSTCONVICTION COUNSEL . THAT IT WOULD BE FAIRLY E ASY TO DRAW LINE OF DEMARK TITION SAY YOU CAN WAIVE YOUR POSTCONV ICTION PROCEEDINGS -- DEMARCATION TO SAY YOU CAN WAIVE YOUR POSTCONVICTION PROCEE DINGS ALL TO GETHER , BUT IF THERE IS GOING TO BE A HEARING , PERHAPS THE RULE SHOULD BENOT TO ALLOW A WAIVER , AND THAT IS WHAT JUDGE SCHA EFFER WAS STRUGGLING WITH BELOW IN HER CONCLUSION AT THAT POINT IN TIME , WAS UNDER THE CASE LAW WHICH IS THE DEROCHE A LINE O F -- DeROCHERER LINE OF CASES , VALDEZ , THE MAJORITY OF WHICH DEAL WITHOUT WAIVERS , BUT THAT LINE OF CASES , YOU CAN SAYWE CAN DRAW A LINE HERE SO THAT IF THERE IS GOING TO AND EVIDENTIARY HEARING , COUNSEL MUST BE THE INDIVIDUAL TO HA NDLE THAT , SO IF THE FERETTA T YPE INQUIRY TO BE SURE , VERY EXTENSIVE IN THIS CASE , BUT IND EED IF THAT IS THE RULE THAT THIS COURT SHOULD EMBRACE, IT MAY BE APPROPRIATE FOR US TO DO SUPPLEMENTAL BRIEFING ON JUST THAT IS SUE, SHOULD THIS COURT EMB RACE SU CH A RULE THAT WOULD ALLOW EFFECTIVELY SAY YOU CANNOT WAIVE POSTCONVICTION COUNSEL , IF THERE IS A EVIDENTIARY HEARING.YOU MAY INDEED WAIVE YOUR PROCEEDINGS ALL TOGETHER ABSOLUTELY , OUT OF THE DeROCHERER DUE PROCESS LINE OF CASES .

JUSTICE: BUT HOW WOULD THAT, IF THE DEFENDANT CANIN FACT WAIVE THE RIGHT TO COUNSEL AT T R IAL , WHAT WOULD BE THE HO OK THAT WOULD HAVE THIS COURT SAY , ALTHOUGH YOU CAN DO IT IN A TRIAL SE TTING , IN A POSTCONVICTION HEARING, WHICH IS BASICALLY IN THETRIAL SETTING, YOU CAN'T DO IT.

I THIN K YOUR HONOR , BECAUSE IT IS NOT A CONSTITUTIONAL RIGHT, BECAUSE IT AR ISES STRICTLY AS A CREATURE OF STATUTE. POSTCONVICTION PROCEEDINGSCERTAINLY ARE NOT CONSTITUTIONALLY GUARANTEED. YOU HAVE THE LINE OF CASES , PENNSYLVANIA VERSUS FINLEY AND THE LINE OF CASES MU RRAY VERSUS BRENTANO AND THE RATIONALE THAT , AND CCR IS EMBRACING TODAY, ALTHOUGH THEY HAVE DISAVOWED THAT, SAYING THAT THEY ARE NOT CALLING FOR A N OUTRIGHT BAR TO ALLOWING DEFENDANTS TO W AIVE COUNSEL A T POSTCONVICTION PROCEEDINGS, IT MAY BE THAT , EXCUSE M E,YOUR HONO R.

JUSTICE: IS THAT THE HOOK WE WILL U SE, TO SAY YOU CAN'T REPRESENT YOUR SELF ON THE APPEAL?

WELL , THE U.S. SUPREME COURT CASE MARTINEZ VERSUS CALIFORNIA HAS AD DRESS ADD THAT CERTAINLY AND DA VIS HAS CERTAINLY EMBRACED THAT, AND IN DeROCHERER BA CK IN 1993 , THIS COURT SAID WE SEE NO REASON WHY YOU CANN OT WAIVE YOUR CONSTITUTIONAL RIGHT TO COUNSEL , YOU CERTAINLY S HOULD NOT BE ABLE T O WAIVE YOUR STATUTORY RIGHTS.IT ALL COMES BACK TO JUSTICE ANSTEAD , SHOULD THERE IN FACT BE , AND THIS DOES GIVE THIS COURT AN OPPORTUNITY TO ADDRESS IT PERSPECTIVELY. IN THIS PARTICULAR CASE, JUDGE SUSAN SCHAEFFER WAS DEALING WITH THE CLEAR STATEOF THE LAW WHICH DID NOT PROHIBIT WHAT THE DEFE NDANT WANTED TO DO AND THAT IS TO REPRESENT HIMS ELF IN POSTCONVICTION.

JUSTICE: BUT YOU YOU ARE SAYING THAT THE CRUX OF FERETTA WAS NOT THE CONSTITUTIONAL NATURE OF THE PROCEEDING BUT THE CONSTITUTIONAL RIGHT OF THE INDIVIDUAL. IN THAT CONTEXT, I AM HAV ING A HA RD TIME JUMPING THAT DIVIDE. IT WASN'T BECAUSE IT WAS CONSTITUTIONAL OR STATUTORY , I DIDN'T THINK.

IT WAS A SIXTH AMENDMENTRIGHT TO COUNSEL AND TO CONTROL THE PROCEEDINGS , ABSOLUTELY, YOUR HONOR, SO YOU HAVE THE CONSTITUTIONAL UNDERPINNINGS OF FERETTA , AND IN DEROCHE THIS COURT EMBRACED THE TY PE, IT DOESN'T SAME LEVEL AS FERETTA BUT A FERETTA TYPE OF INQUIRE AND ALSO INCLUDED ADD INQUIRY INTO HIS COMPETENCY TO PROCEED AND -- INCLUDED A N INQUIRY INTO HIS COMPETENCY TO PROCEED , AND A DIRECT INQUIRY BELOW , OF THE J UDGE SAYING WHY SHOULD I ALLOW THE DEFENDANT T O DO WHAT HE WANTS TO DO AND THIS IS SET OUT WITH NONE PROVIDED AND FOR THEM TO NOW SAY --

JUSTICE: I AM A LI TTLE CONFUSED. IS IT THE STATE'S POSITION THAT THIS COURT CAN WRITE AN O PINION OR DERING , ORDERING THAT COUNSEL APPEAR IN ALL POSTCONVICTION CASES ANDTHAT THAT DOES NOT RUN INTO ANY KIND OF UN ITED STATES SUPREME COURT PRO HIBITION?

YOUR HONOR , THE STATE'SPOSITION IN THIS APPEAL IS FIRST OF ALL, TO L OOK AT THE, WHAT THE TRIAL COURT DID BELOW , AND THAT IS TO ALLOW HIM TO WAIVE IT .

JUSTICE: I UNDERSTAND BUT THAT IS NOT THE QUESTION.

THE SECOND, THE SECOND RESPONSE, YOUR HONOR, THESECOND PART OF IT , B ECAUSE IBELIEVE IT HAS TO BE CONSIDERED TOGETHER, WASTHERE ERROR BELOW, AND THEREWAS NO NOT. THE -- AND THERE WAS NOT. THE SECOND PART , CAN THEREBE AN ARGUMENT FOR SUPPO RTING THE NOTION THAT DEFENDANTS SHOULD NOT BE ALLOWED TO WAIVE COUNSEL IN AN EVIDENTIARY HEARING SETTING , WITHOUT RUNNING AFOUL OF THE CONSTITUTION , AND YOU WOULD ASK FOR THE OPPORTUNITY TO PR ESENT SUPPLEMENTAL BRIEFI NG ON THAT , BUT I ALSO BEL IEVE THAT THERE WOULD BE NO CONSTITUTIONAL PROHIBITION FOR SUCH A RULE.

JUSTICE: NO PROHIBITION. OKAY.

CHIEF JUSTICE: IT IS INTERESTING.IN YOUR ANALOGY, YOU CAN WAIVE THE E NTIRE POSTCONVICTION PROCEEDINGS, BUT YOU CAN'T WAIVE COUNSEL FOR APPEAL . IS THAT RIGHT?

THAT'S CORRECT. THAT IS THE DAVIS CASES , AND THE CASES THAT SAY YOU CANWAIVE YOUR POSTCONVICTION PROCEEDINGS ALL TOGE THER, CERTAINLY ARE OUT O F DeROCHERER AND THAT LINE OF CASES.

DAVIS WAS A DIRECT APPEAL.

THAT'S CORRECT, YOUR HONOR. THAT'S CORRECT. SO THE NOTI ON TO APP LYING IT IN POSTCONVICTION SETT INGS, THIS COURT HAS DONE SO IN ORDERS IN THIS CASE AND CERTAINLY --

CHIEF JUSTICE: IN OTHER WORDS , I AM THINKING WE HAVEN'T ALLOWED, WE HAVE REQUIRED COUNSEL T O PRESENT THE APPEAL , EVEN IF THE PERSON HAS WAIVED OR REPRESENTED THEM SELVES? HAVE WE DONE THAT? IN OTHER WORDS IN POSTCONVICTION APPEALS, HAVE WE REQUIRED COU NSEL TO STAY ON RATHER THAN --

Y ES, YOUR HONOR.

CHIEF JUSTICE: WE HAVE DONE THAT IN WHAT CASES HAVE WE DONE THAT?

YOU -- I BELI EVE VALDEZ MIGHT HAVE ASKED FOR THAT BECAUSE I KNOW VALDEZ WAS CITED BELOW. IN THIS PARTICULAR CASE YOU HAVE DE NIED, CERTAINLY YOU HAVE CITED DAVI S FOR THE PRO POSITION, AND SO IT IS AN EXTENSION OF DAVIS IN THE DIRECT APPEAL SCENARIO TO POSTCONVICTION TO KEEPING COUNSEL O N . IT IS A VERY INTERESTING QUESTION THAT WAS INITIATED BY JUSTICE AN STEAD THAT IS, AND IT IS ONE THAT JUDGE SCHAEFFER , AS I SAID, STRUGGLED WITH BELOW, BECAUSE IT DOES BECOME VERY FRUSTRATING WHEN TR YING TO BALANCE THE DEFENDANT'S RIGHTS. HE DOES HAVE A RIGHT TO WHATYOU HAVE HIS POSTCONVICTION PROCEEDINGS ENTIRELY , AND WHAT HAPPEN ED IN THIS PARTICULAR CASE, ALTHOUGH MR . CANNON HASAL LEWDED TO A PARADE OF - - MR . CANNON HAS ALLUDED TO A PARADE OF HORRIBLES , CCR ATTORNEYS , CCRC -- CCR SAID THEY WOULDCALL THE WITNESSES , PREPARE THE TRANSCRIPTS FOR HIM , WHATEVER HE N EEDED, SO THEY WOULD FACILITATE THE ABILITY FOR HIM TO HAVE A FULL HEARING.

JUSTICE: ONE POINT , I THOUGHT THAT THE ARGUMENT WAS MA DE HERE THAT NOT ONLY DID HE ALLOW -- DID SHE ALLOW HIM TO REPRESENT HIMSELF BUT HE DIDN'T REALLY WANT TO REPRESENT HIMS ELF. HE WANTED AN OTHER ATTORNEY. I KNOW THAT DIDN'T PLAY OUT. THERE WAS A M OTION FILED AT ONE POINT THAT THE TRIALCOURT SAID THAT THERE WAS NO REASON TO GET RID OF CCR, BUT HO W DID THAT ALL PLAY OUT?

THAT WAS, THAT IS THE HEARING IN THE RECORD SUPPLEMENTAL VOLU ME, THE JANUARY 30, 20 00 HEARING ON THE ASKING CCR T O WITHDRAW AND ALSO CCR'S MOTION , ANDTHEY ALL EGE THE T ERM CONFLICT. THEY INVOKED CONFLICT. THE ACTUAL CONFLICT WAS NOT CONFLICT AT ALL. IT ACTUALLY HAD TO DO WITH THE WA Y THE CL AIMS WERE BEING PRESENT ED. MR. McDONALD VERY MUCH WANTED HIS CLAIM TO BE SET UP INDIVIDUALLY AND CCR HADWHAT WAS IN THE IR CLAIM 15 IN THEIR POSTCONVICTION MOTION, HAD IN CLUDED ALL OF HIS CLAIMS UNDERNEATH THAT C LAIM --

JUSTICE: SO THAT WAS THE BASIS OF THE DENIAL.

THAT WAS THE BASIS OF THE D ENIAL , BUT IT WAS NOT A L EGAL CONFLICT AT ALL BUT IN FACT A DISPUTE OVER HOW CLAIMS WOULD BE PRESENTED AND THEY AT ONE POINT SEEMED TO HAVE WORKED IT OUT AND MR . McDONALD SAID O KAY , I WILL GO AHEAD AND VERIFY CCR'SMOTION IF THEY PUT MY CLAIMS IN THERE, AND THEN SUBSEQUENTLY MR . McDONALD F ILED HIS MOTION ASSERTING SELF-REPRESENTATION AND THAT IS APPROPRIATE THROUGH A FERETTA HEARING DOWN BELOW. IT WAS ENTIRELY APPROPRIATEFOR THE TRIAL COURT TO HAVE CONDUCTED THAT HEARING ANDCERTAINLY IT REMAINS FOR ANOTHER DAY WHEN THIS COURT BELIEVES THAT IT WOULD BE PRUDENT TO AD OPT A , AS AMATTER OF PO LICY , WHETHER IN FACT THERE SHOULD BE A PROHIBITION AGAINST WAIVER OF COUNSEL IN THE EVENT OF AN EVIDENCIARY HEARING , AND , AGAIN , I STAND CERTAINLYREADY TO B RIEF THAT ISSUE AND TO GIVE THIS COURT BENEFIT OF A D E TAILED LE GAL ANALYSIS AND ON AN EXPEDITED BASIS .

JUSTICE: IT IS THE STATE'S POSITION THAT THERECLEARLY IS NO ERROR HERE IN THE WAY THE TRIAL COURT TREATED THIS ISSUE.

THIS IS A METICULOUS INQUIRY BELOW, YOUR HONOR. J UDGE SCHA EFFER BENT OVER BACKWARDS TO CA UTION M R . McDONALD REPEATEDLY ON THE DANGERS OF SELF-REPRESENTATION.AT THE HUFF HEARING , NOW , THIS CASE ALSO AS GORDON, THE CODEFENDANT'S CASE WHICH THIS COURT AFFIRMED OPPOSE THE CONVICTION IN 2003 , IT DID INVOLVE DNA TESTIMONY , AND THE SUM AND SUBSTANCE OF THE DNA WAS ESSENTIALLYTHERE WAS A BLOODSTAIN , S MALL BLOODSTAIN ON A SWEATSHIRT THAT WAS LINKED TO MR . McDONALD. THE VICTIM'S DNA IS THE ONLY D NA WE ARE TALKING A BOUT. THE BLOOD OF ROBERT GO RDON , McDONALD , CISNEROS , THE OTHER CODEFENDANT , WAS NEVER SENT T O THE CCI LAB FOR T ESTING SO WE ARE ONLY TALKING AB OUT THE VICTIM'S DNA. IN THE GOR DON CASE , PR IVATE COUNSEL REPRESENTS MR. GORDON. THEY PRESENT DR. HERRERA AND THE STATE PRESENTS DR . MARTIN TRACI. AT THE HUFF HEARING , JUDGE SCHAEFFER OF FERS TO MR . McDONALD, IF YOU WANT BECAUSE YOU HAVE A DNA CLAIM , THIS IS THE TESTIMONY, IF YOU WANT TO USE TAKE TESTIMONY , YOU MAY, BECAUSE THIS IS A DIFFICULT AREA. AND MR. McDONALD THEN JUM PED UP AND SAID AT THAT POINT I WANT TO DO IT , APPARENTLY AGAINST CCR'S ADVICE BUT IN ANY EVENT HE CERT AINLY ACCEPTED THAT.AT THE EVIDENTIARY HEARING , MR. McDONALD AGAIN RATIFIED THAT ACCEPTANCE OF THE DNA TESTIMONY THAT HAS BEEN PRESENTED IN GORDON, AND BY THE WAY , THE DNA TESTIMONYTHAT WAS PRESENTED IN GORDON , BOTH DR . TRACY THE STATE'S EXPERT AND DR . HERR ERA AGREED THAT THAT BLOO DSTAIN WAS CONSISTENT WITH THE VICTIM'S DNA , AND SO THERE WAS NO BENEFIT THAT COULD HAVE BEEN HAD F RO M HAVING YET ANOTHER DNA E X PERT , BUT HE WAS GIVEN THE OPPORTUNITYIF HE WANTED , AND JUDGE SCHAEFFER SAID IF YOU WANT , YOU CAN USE THE WITNESSES FROM GORDON OR NOTIFY M E WITHIN 20 DAY S OF THE EVIDENTIARY HEARING, IF YOU WANT ANOTHER DNA EXP ERT , AND SO THE AC TUAL TESTIMONY THAT DID , THAT WAS PRESENTE D AT THE EVIDENTIARY HEARING BY MR. McDONALD OR ON MR . McDONALD'S BE HALF , HIS ATTORNEY, AND MR . McDONALD HAD EXTENSIVECROSS-EXAMINATION OF HIM, HE TESTIFIED PRIMARILY AT THE EVIDENTIARY HEARING, HAD TO DO WITH THE ISSUE O F AL IBI , MOSTLY , BECA USE MR . McDONALD SAID HE HAD THE NAME AFTER STRIPPER AND TWO ALIBI WITNESSES WHO WERE NEVERCALLED. THOSE ARE THE INDIVIDUALS THAT AT THE COMMENCEMENT OF THE HEARING , SH AFER ASKED CCR IF THEY HAD BEEN ASKEDTO LOCATE OR SUBPOENA , IT WAS TINA THE EX OTIC DA NCER AND THE TW O OTHER ME N, MR . ELLIS AND MR. MILLER , NEITHER OF WHICH COULD BE FOUND , SO FR OM McDONALD WAS NOT DENIED AN OPPORTUNITY TO SUBPOENA ANY WITN ESSES FOR THE HEARING.HE WAS NOT DENI ED AN OPPORTUNITY TO PRESENT --

JUSTICE: WHO WAS TO FIND THEM?

THE CCR INVESTIGATOR. THERE WAS A NOTE ON THE RECORD THAT THEY WERE LOOKING FOR THAT , SO --

CHIEF JUSTICE: DID HE USE THE RECORD THAT CCR HAD OBTAINED? WERE THOSE USED IN THE HEARING?

HE WAS PROVIDED , J UDGE SCHAEFFER IN AN OR DER , AT THE COMMENCEMENT OF THEHEARING ADDRESSING ALL P ENDING MOTION THAT IS HAD BEEN FILED BY MR . McDONALD , CCR WAS DI RECTED TO GIVE ALLOF THE DOCUMENTS THAT THEY HAD RECEIVED TO MR. McDONALD IF THEY HAD NOT ALREADY DONE SO. I BELIEVE MR. CANNON REPRESENTED THAT THEY THOUGHT THAT THEY HAD ALL BEEN PROV IDED BUT CERTAINLYTHEY WOULD DO SO TO MAKE SURE THAT HE HAD BENEFIT OF ALL OF THAT.

JUSTICE: THE GORDON PROCEEDINGS WERE ALSO PRESIDED OVER BY JUDGE SCHAEFFER.

THEY WERE, YOUR HONOR. HE WAS THE -- SHE WAS THETRIAL AND SENTENCING JUDGE AND GORDON AND McDONALD WERE TRIED TOGETHER.

CHIEF JUSTICE: I ASSUME THAT THERE WASN'T ANY COMPLAINT BY MR . McDONALD DURING THESE PROCEEDINGS THAT HE DID NOT GET ACCESS TO THOSE RECORDS OR THAT , WAS THERE ANYTHING LIKE THAT DURING THE COURSE OF THE HEA RING, WHERE HE ASSERTED THAT HE WAS AT A DISADVANTAGE BECAUSE OF WHATWAS GOING ON?

JUSTICE PA RIENTE , MR . McDONALD HAS COMPLAINED INTERMITTENTLY ABOUT HE AND CCR OBVIOUSLY HAVE A DISAGREEMENT WITH REGA RD TO SOME OF THE RECORDS THAT HAVE EVEN BEEN SUBMITED IN THE APPE LLATE FILE, AND THAT MAY BE, IN FACT , WHY I BEL IEVE LAST SEPTEMBER , WE HAD A HEARING BACK IN THE TRIAL COURT BEFORE JUDGE SCHAEFFER , AND MR . McDONALD WAS TRANSPORTED DO WN TO PINELLAS COUNTY AND HE DID, IN FACT , SAY THESE ARE THE RECORDS I WANT TO MAKE SURE THAT A RE IN MY POSTCONVICTION RECORD.MR. McDONALD IS VERY FAMILIAR WITH WHAT IS ON HIS CASE AND IN HIS CASE , AND HE IS VERY ARTICULATE AND KNOWLEDGEABLE CERTAINLYABOUT HIS PROCEEDING S, SO AS TO EACH O F HIS SPECIFIED COMPLAINTS, THE TRIAL COURT ADDRESSED THEM AND CCR REPRESENTED WHERE THOSE DOCUMENTS COULD BE FOUND IN THE RECORD. HE DID COMPLAIN --

CHIEF JUSTICE: I WAS REFERRING MORE TO THE QUESTION OF WHAT JUSTICE CANTERO WAS TALKING ABOUT EARLIER, THAT OBVIOUSLY YOU A RE ON DEATH ROCH LT YOU ARE GOING TO HAVE -- DEATH ROW. YOU ARE GO ING TO HAVE SOME LIMITS TO WHAT YOU ARE GOINGTO BE ABLE TO DO PREPARATIONWISE. MAYBE YOU DIDN'T. MAYBE YOU HAVE ALL THE ABILITY TO IT IN THE WO RLD TO LO OK THROUGH RECORDS , SITTING AROUND, WAS THERE ANYTHING LIKE THAT THAT HE COMPLAINED ABOUT, APART FROM THE PRISON AUTHORITIES NOT BEING ABLE TO HAVE -- JUST I , JUSTICE PARIENTE , DON'T RECALL HIM COMPLAINING ABOUT DOC OFFICIALS AT ALL. THE GIST OF HIS COMPLAINTWAS THAT HE WANTED DOCUMENTSIN THE RECORD THAT HE HAD , THAT HE DID NOT BELIEVE THAT CCR HAD FILED .

CHIEF JUSTICE: NOTHING LIKE THE FACT THAT HE DIDN'T , SOMEHOW BECAUS E HE IS ONDEATH ROW , H E COULDN'T ADEQUATELY PREPARE FOR HIS --

NO. N O. NO , YOUR HONOR. NOTHING LIKE THAT. WITH RESPECT TO HIS , CCR HAS ALLEGED THAT, WELL , HE DIDN'T HAVE PRETRIAL TRANSCRIPTS. WELL , JUDGE SCHA EFFER ENTERED AN ORD ER. IT IS IN V OLUME 11 OF THE RECORD, ADDRESSING THE DEFENDANT'S COMPLAINTS CONCERNING THE ORDER ON ALL PENDING MOT IONS. CCR DID NOT IDENTIFY THE PARTICULAR TRANSCRIPTS THAT HE WAS LOOKING AT. IT APPE ARS FROM JUDGE SCHAEFFER'S ORDER THAT THERE WAS A PRET RIAL HEARING ON TWO OF THE CODEFENDANTS , WHICH WAS HELD BEFORE MR . McDONALD WAS EVEN ARRESTED .

CHIEF JUSTICE: SO JUDGE SCHAEFFER SAID -- SO JUDGE SCHAEFFER SAID THAT HAS NOTHING DO WITH YOUR SPEEDY TRIAL COMPLAINT. THE ARRANGEMENT FOR CONTINUED HEARING , TH AT WAS DONE --

CHIEF JUSTICE: HOW O LDWAS HE?

47 AT THE TIME OF THE HEARING AND HE TESTIFIED AT LENGTH AND CERTAINLY THIS COURT HAS THE COLLOQUY THAT WE HAVE A R GUED AS TEXTBOOK MODEL OF A SCRUPULOUS INQUIRY BY A TRIAL JUDGE TRYING TO DO THE R IGHT THINGCERTAINLY , AND AB IDING BY THE PRECEDENT FROM THIS COURT , W HICH IN DEED APPEARED TO GIVE HIM THE RIGHT TO PROCEED PRO SE IN POSTCONVICTION AT THE TRIAL LEVEL . IF THIS COURT HAS NO F URTHER QUESTIONS, THAN K YOU FOR THE OPPORTUNITY TO PRESENT ARGUMENT. I WOULD ASK THAT YOU AFFIRM THE JUDGMENT , SENTENCE AND POSTCONVICTION ORDER DEN YING POST-CONVICTION RELIEF. THANK YOU , YOUR HONOR.

CHIEF JUSTICE: REBUTTAL .

WITH REGARDS TO THE FERETTA IN QUIRY , IN THE A MENDED BRIE F, I DO REFERENCE THE FERETTA INQUIRY AND I D O REALIZE THAT THERE WAS A FERETTA INQUIRY AND THAT IT WAS R ATHER LENGTHY. THE ISSUE IS NOT THAT FERETTA INQ UIRY IN ITSELF , AND I ALLEGE R ATHER IT IS THE , WHAT HAPPENED AFTER WE DO THE FERETTA INQUIRY AND THE COURT , THE TRIAL COURTWHO IS IN THE BEST POS ITION TO UNDERSTAND WHAT IS GOING ON , LOOKS AT THE RESULTS OF THAT FERETTA INQUIRY ANDSTATES THIS IS NOT WORKINGOUT.IT IS NOT GOING FOR WARD. THE CASE DOES NOT REALLY PROGRESS AS IT WOULD WITH COUNSEL. BUT --

JUSTICE: WHAT ARE YOU ALLEGING, THAT JUDGE SCHAEFFER SHOULD HAVE DONE , S INCE WE ALL UNDERSTAND THATHE WAS NOT HANDLING THIS CASE THE WAY YOU WOULD HAVE HANDLED IT OR SOME OTHER ATTORNEY, SO AT THAT POINT WHAT SHOULD JUDGE SCHAEFFER HAVE DONE?

REAPPOINTED US. SHE HAD FOUND THAT THERE WAS NO CONF LICT . AND SHE HAD STATED THAT --

JUSTICE: OVER THE DEFENDANT'S OBJECTION.

CORRECT. AND --

JUSTICE: SHE WOULD HAVE FACED THE RULE ON POINT OF COUNSEL , THE WAIVER , THAT SAYS REGARDLE SS OF THE DEFENDANT'S LE GAL SKILLS OR COMPLEXITY OF THE CASE , THE COURT SH ALL NOT DENY THE DEFENDANT'S UNEQUIVOCAL REQUEST TO REPRESENT HIM SELF OR HERSELF , AND THEN THE ONLY OTHER OBLIGATION IF A WAIVER IS SEND AT ANY STAGE, THE N THE ONLY THIN G YOU ARE SUPPOSED TO DO IS OFFER ASSISTANCE OF COUN SEL.

WELL , W ITHIN THAT --

JUSTICE: UNDERSTAND THERE WAS STAND-BY COUNSEL.

STAN DBY COUNSEL , CORRECT , BUT UNDER CHAPTER 27 , I DO NOT HAVE THE ABI LITY TO PROCEED, AND ACTUALLY AS STANDBY COUNSEL, AND IT IS IN THE BRIEF , WHEN I DID ATTEMPT TO HEL P MR . McDONALD PERSONALLY , I WAS TOLD BY THE COURT TO SIT DOWN, MR . CANNON. HE CAN'T HAVE HIS CAKE ANDEAT IT, TOO , BECAUSE HE WAS CONFUSED ABOUT THE DNA ISSUE. AND H E WAS NOT ARTICULATE. HE WAS CONFUSED ABOUT L ATENT AND --

JUSTICE: AND IF SHE HAD REPLACED YOU, I M EAN REPLACED WITH , PUT COUNSELIN TO REPRESENT HIM, THEN THE OTHER SIDE HE WOULD BE HERE ARGUING HIS RIGHT WAS VIOLATED UNDER THE RULE, BECAUSE EVEN IF HE WASN'T CAPABLE OR INTELLIGENT ENOUGH, HE S T ILL HAD THE RIGHT TO REPRESENT HIMSELF.

CHIEF JUSTICE: YOU MAY RESPOND TO THAT AND THEN YOUR TI ME IS EXPIRED .

SURE AND I WOULD A GREE WITH ASSISTANT ATTORNEY JONES IN THIS CASE , THAT IT IS A CONDITION AL RIGHT ANDWE HAVE DONE IT IN DAVID. THIS COURT HAS , AND THEN B RINGING US HERE, RELIED UPON DAVIS , AND THAT RIGHTTO COUNSEL CAN BE NARROWED FOR THESE SPECIFIC PURPOSES , BASED ON THE FACT THAT THIS IS A POSTCONVICTION HEARINGAND THE PROCEDURES THAT WE HAVE.

CHIEF JUSTICE: THANK YOU VERY MUCH , MR . CANNON , MS. BLANCO. THE C OURT WILL BE IN RECESS UNTIL NINE O'CL OCK TOMORROW MORNING.

MARSHAL: PLEASE RI SE.