Supreme Court of Florida

____________

No. SC06-1931

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Appellant,

vs.

Appellee.

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No. SC06-1946

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Petitioner,

vs.

Respondent.

[October 12, 2006]

PER CURIAM.

Arthur Dennis Rutherford, a prisoner under sentence of death and an active

death warrant, appeals the circuit court’s order denying without an evidentiary

hearing his third successive motion for postconviction relief and the circuit court’s

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order dismissing his motion to correct an illegal sentence. Rutherford also

petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const.; art. V, § 3(b)(9), Fla. Const. For the reasons stated below, we

affirm the circuit court’s orders and deny Rutherford’s habeas petition.

The execution of Arthur Dennis Rutherford is set for October 18, 2006.

The execution had been initially set for January 31, 2006, but was stayed by the

United States Supreme Court while it considered whether Rutherford could litigate

a challenge to Florida’s lethal injection procedures in the federal courts under 42

U.S.C. § 1983. On September 22, 2006, after the stay expired, the Governor

rescheduled Rutherford’s execution for the period between October 9, 2006, and

October 23, 2006. The warden chose October 18 as the date of the execution.

This Court’s last opinion, issued on January 27, 2006, explains in detail the

factual background and procedural history of this case. See Rutherford v. State,

926 So. 2d 1100, 1103-07 (Fla.), cert. denied, 126 S. Ct. 1191 (2006). In 1986,

Rutherford was convicted of the first-degree murder of Stella Salamon and

sentenced to death. Rutherford knew the victim, a 63-year old widow who lived

alone, because she had hired him to do odd jobs, one of which was the installation

of sliding glass doors. Soon after the installation, the doors had to be replaced

because they did not close and lock properly. Mrs. Salamon was not satisfied with

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Rutherford’s work and expressed uneasiness to a friend about Rutherford’s

continued presence at her home. Before this murder,

[d]uring the summer of 1985, Rutherford told his friend Harold

Attaway that he planned to kill a woman and place her body in her

bathtub to make her death look like an accident. Rutherford also told a

long-time business associate, Sherman Pittman, that he was going to

get money by forcing a woman to write him a check and then putting

her in the bathtub. If the woman initially refused to make out the

check, Rutherford explained that he would “get her by that arm and

she would sign.” It was then that Rutherford bragged that he would do

the crime but not the time. About a week after making those

statements, Rutherford again told Attaway about his homicidal plan.

Rutherford also told his uncle that they could get easy money by

knocking a woman Rutherford worked for in the head. Unfortunately,

none of these three men took Rutherford seriously enough to report

his plans to the authorities.

. . . .

At 7:00 [on the morning of the murder,] Rutherford and

Attaway went to retrieve the old doors from Mrs. Salamon’s garage.

When they reached the house, Rutherford told Attaway that he had a

gun in his van and said, “If I reach for that gun, you’ll know I mean

business.” Attaway testified that this was the first time he really

believed that Rutherford might actually hurt someone . . . . While

they were loading the doors, Attaway overheard Mrs. Salamon say to

Rutherford, “You can just forget about the money.”

. . . .

Around noon, Rutherford went to see Mary Frances Heaton . . .

. He showed her one of Mrs. Salamon’s checks and asked her to fill it

out. Heaton cannot read or write other than to sign her name, so she

called for her [fourteen]-year-old niece, Elizabeth. Rutherford

promised Elizabeth money if she would fill out the check as

instructed. Elizabeth filled out the check the way Rutherford told her

to, making it payable to Heaton, but she did not sign anyone’s name

on it.

Rutherford told Heaton that he owed her money for work she

had done for him and asked her to accompany him. He took Heaton to

Santa Rosa State Bank, gave her the check, and sent her into the bank

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to cash it. Because of the blank signature line, the teller refused to

cash the check; Heaton returned to Rutherford’s van and told him.

Rutherford responded by driving them to the nearby woods,

where he took out a wallet, checkbook, and credit cards wrapped in a

shirt, and threw the bundle into the trees. He also signed Mrs.

Salamon’s name onto the check, and then went back to the bank.

Outside the bank, Heaton watched as Rutherford endorsed Heaton’s

name on the check. . . . Heaton re-entered the bank, and this time she

successfully cashed the check and left with $2,000 in one hundred

dollar bills. Rutherford gave Heaton $500 of those funds, and she in

turn gave Elizabeth $5 for filling out the check.

Around 3:00 that afternoon, Rutherford visited his friend

Johnny Perritt. He told Perritt that he had “bumped the old lady off”

and showed him $1500 in cash. He wanted Perritt to hold $1400 of

that amount for him. Rutherford said that he had hit the “old lady” in

the head with a hammer, stripped her, and put her in the bathtub.

Perritt refused to take the cash, and his mother later notified the police

of Rutherford’s claim to have committed a murder.

Id. at 1103-04 (quoting Rutherford v. Crosby, 385 F.3d 1300, 1302-04 (11th Cir.

2004)).

At 6:30 p.m., two neighbors discovered Mrs. Salamon’s naked body floating

in her bathtub, which was overflowing with water.

When the crime scene investigators arrived they found three

fingerprints on the handle of the sliding door to the bathtub, one

fingerprint on the tile wall of the tub, and a palm print on the window

sill inside the tub with the fingers up and over the sill as though the

person had grabbed it. All of those prints were later identified as

Rutherford’s. Blood was spattered on the bathroom walls and floor.

According to an expert, the spatter pattern indicated that the blows

occurred while Mrs. Salamon was sitting or kneeling on the bathroom

floor.

Mrs. Salamon’s naked body floated face-up in the water. She

had been viciously beaten. There were bruises on her nose, chin, and

mouth and a cut on the inside of her lip consistent with a hand being

held forcefully over her face. Her lungs showed signs of manual

asphyxiation, apparently from someone covering her nose and mouth.

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Her arms and knees were bruised and scraped, and her left arm was

broken at the elbow. Of the three large wounds on her head, two were

consistent with being struck with a blunt object or having her head

slammed down. The other wound, a puncture that went all the way to

the bone, appeared to be from a blow with a claw hammer or

screwdriver. Her skull was fractured from one side to the other.

Id. at 1104-05 (quoting Rutherford, 385 F.3d at 1304-05).

On October 2, 1986, the jury found Rutherford guilty of first-degree murder

and armed robbery. At the penalty phase, the jury recommended the death penalty

by a vote of seven to five, and the trial court sentenced Rutherford to death. This

Court affirmed Rutherford’s conviction and sentence and the United States

Supreme Court denied his petition for writ of certiorari. Rutherford v. State, 545

So. 2d 853 (Fla.), cert. denied, 493 U.S. 945 (1989).

Rutherford vigorously pursued postconviction relief. In 1996, after

conducting an evidentiary hearing on Rutherford’s claims of ineffective assistance

of trial counsel, the trial court denied relief and this Court affirmed. See

Rutherford v. State, 727 So. 2d 216 (Fla. 1998). In a separately filed petition for

writ of habeas corpus, Rutherford asserted numerous claims of ineffective

assistance of appellate counsel and this Court likewise denied relief. Rutherford v.

Moore, 774 So. 2d 637 (Fla. 2000). Rutherford then pursued habeas relief in the

federal courts, which was eventually denied. See Rutherford v. Crosby, 385 F.3d

1300 (11th Cir. 2004), cert. denied, 554 U.S. 982 (2005).

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Rutherford next filed a second postconviction motion in state court based on

Ring v. Arizona, 536 U.S. 584 (2002). The trial court summarily denied

Rutherford’s motion and this Court affirmed the denial on appeal. See Rutherford

v. State, 880 So. 2d 1212 (Fla. 2004) (table report), cert. denied, 543 U.S. 1167

(2005). Rutherford later filed two petitions for writ of certiorari in the United

States Supreme Court. The Supreme Court denied both petitions. See Rutherford

v. Florida, 543 U.S. 1167 (2005) (mem.); Rutherford v. Crosby, 544 U.S. 982

(2005) (mem.). Rutherford then filed a second habeas petition in this Court based

on Crawford v. Washington, 541 U.S. 36 (2004), which was also denied. See

Rutherford v. Crosby, 909 So. 2d 862 (Fla. 2005) (table decision).

On November 29, 2005, Governor Bush signed Rutherford’s death warrant.

One day prior, on November 28, 2005, Rutherford filed a third successive habeas

petition in this Court in which he asserted that the trial court’s decision to place

him in shackles during closing arguments of the penalty phase violated the Fifth,

Eighth, and Fourteenth Amendments to the United States Constitution under Deck

v. Missouri, 125 S. Ct. 2007 (2005). This Court denied Rutherford’s successive

habeas petition by order on January 5, 2006. See Rutherford v. Crosby, 921 So. 2d

629 (Fla.) (table report), cert. denied, 126 S. Ct. 1190 (2006).

After the death warrant was signed, Rutherford filed a third postconviction

motion to vacate his convictions and sentences. Rutherford’s claims centered on

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two main issues: (1) that lethal injection procedures in Florida constituted cruel

and unusual punishment; and (2) that newly obtained affidavits implicated another

person, Mary Frances Heaton, in the victim’s death. The trial court summarily

denied the claims and we affirmed. See Rutherford, 926 So. 2d at 1102. The

United States Supreme Court denied certiorari and a stay of execution on January

31, 2006. See Rutherford v. Florida, 126 S. Ct. 1191 (2006).

During this same time period, Rutherford was attempting to litigate the

lethal injection issue in the federal courts. The federal district court dismissed

Rutherford’s claim under 42 U.S.C. § 1983, which authorizes civil suits to remedy

violations of constitutional rights, and the United States Court of Appeals for the

Eleventh Circuit affirmed. See Rutherford v. Crosby, 438 F.3d 1087 (11th Cir.

2006). Rutherford filed a petition for writ of certiorari and an application for stay

of execution with the United States Supreme Court. The Supreme Court granted

the stay on January 31, 2006. See Rutherford v. Crosby, 126 S. Ct. 1191 (2006).

On June 19, 2006, the Supreme Court granted the petition for writ of certiorari and

remanded the case to the Eleventh Circuit for further consideration in light of Hill

v. McDonough, 126 S. Ct. 2096 (2006). See Rutherford v. McDonough, 126 S. Ct.

2915 (2006). Upon issuance of the mandate by the United States Supreme Court

on July 21, 2006, the stay terminated. See Rutherford, 126 S. Ct. at 1191 (“In the

event the petition for writ of certiorari is granted, the stay shall terminate upon the

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sending down of the judgment of this Court.”). The Eleventh Circuit subsequently

reconsidered Rutherford’s section 1983 claims in light of Hill and affirmed the

district court’s dismissal based on unnecessary delay by Rutherford in bringing the

claim. See Rutherford v. McDonough, No. 06-10783, 2006 WL 2830968 (11th

Cir. Oct. 5, 2006).

Following the rescheduling of Rutherford’s execution, Rutherford filed a

fourth motion for postconviction relief under Florida Rule of Criminal Procedure

3.851 and an amendment to the motion. Rutherford raised five claims for relief.

He asserted that (1) newly discovered evidence, consisting of the American Bar

Association’s September 2006 report evaluating Florida’s death penalty system

and unusual punishment in violation of the Eighth and Fourteenth Amendments;

(2) Florida’s clemency process is arbitrary and capricious, violating the Eighth and

Fourteenth Amendments; (3) Florida’s failure to recognize a freestanding actual

innocence claim violates the Eighth Amendment; (4) newly discovered evidence

relating to Mary Frances Heaton’s role in the murder demonstrates that

Rutherford’s capital conviction and death sentence are constitutionally unreliable

in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments; and (5) the

1. See American Bar Association, Evaluating Fairness and Accuracy in the

State Death Penalty System: The Florida Death Penalty Assessment Report (Sept.

2006).

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newly discovered evidence relating to Heaton’s role in the murder demonstrates

that Rutherford is actually innocent.

determine whether an evidentiary hearing was required on any of these claims. On

October 6, 2006, the circuit court denied Rutherford’s motion without an

evidentiary hearing. Rutherford also filed a motion to correct an illegal sentence

under Florida Rule of Criminal Procedure 3.800(a), arguing that his death sentence

is unconstitutional in light of the ABA Report. The circuit court granted the

State’s motion to strike, finding that Rutherford’s claim was not properly raised in

a motion to correct illegal sentence because the alleged illegality did not appear on

the face of the record and the trial court had no authority to reconsider the

constitutionality of the death penalty on grounds rejected by this Court and the

United States Supreme Court.

In the instant appeal, Rutherford challenges the circuit court’s denial of his

rule 3.851 motion and the circuit court’s dismissal of his rule 3.800(a) motion.

Rutherford has also petitioned the Court for a writ of habeas corpus, in which he

asserts that the ABA Report demonstrates that his death sentence should be

vacated. He claims that the ABA Report constitutes empirical evidence that his

sentence of death constitutes cruel and unusual punishment. He also argues that

2. Huff v. State, 622 So. 2d 982 (Fla. 1993).

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the ABA Report provides the same type of statistical analysis that led the United

States Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972), to declare the

death penalty unconstitutional and led this Court to vacate all of the death

sentences of those defendants then on death row. See Anderson v. State, 267 So.

2d 8 (Fla. 1972).

We first address the impact of the ABA Report because it serves as the basis

for Rutherford’s claims in his rule 3.800(a) and 3.851 motions, as well as in his

habeas petition, that his death sentence is unconstitutional. On September 17,

2006, the American Bar Association published a report on Florida’s death penalty

system. The report, titled Evaluating Fairness and Accuracy in the State Death

Penalty System: The Florida Death Penalty Assessment Report, analyzes Florida’s

death penalty laws, procedures and practices, and highlights areas in which, in the

view of the assessment team, Florida “fall[s] short in the effort to afford every

capital defendant fair and accurate procedures.” ABA Report at iii.

We agree with the circuit court’s conclusion that the ABA Report is not

“newly discovered evidence.” The ABA Report is a compilation of previously

available information related to Florida’s death penalty system and consists of

legal analysis and recommendations for reform, many of which are directed to the

executive and legislative branches. See ABA Report at ii (“The state assessment

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teams are responsible for collecting and analyzing various laws, rules, procedures,

standards, and guidelines relating to the administration of the death penalty” and

the assessment team’s findings “are intended to serve as the bases from which [the

state] can launch [a] comprehensive self-examination[].”).

However, even if we were to consider the information contained in the ABA

Report, nothing therein would cause this Court to recede from its decisions

upholding the facial constitutionality of the death penalty. See, e.g., Hodges v.

State, 885 So. 2d 338, 359 & n.9 (Fla. 2004) (noting that the defendant’s claim that

“the death penalty statute is unconstitutional because it fails to prevent the arbitrary

and capricious imposition of the death penalty, violates due process, and

constitutes cruel and unusual punishment,” has “consistently been determined to

lack merit”); Lugo v. State, 845 So. 2d 74, 119 (Fla. 2003) (“We have previously

rejected the claim that the death penalty system is unconstitutional as being

arbitrary and capricious because it fails to limit the class of persons eligible for the

death penalty.”). Further, Rutherford does not allege how any of the conclusions

reached in the ABA Report would render his individual death sentence

unconstitutional.

For all these reasons, we affirm the circuit court’s denial of the motion for

postconviction relief regarding these points related to the ABA Report, we affirm

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the circuit court’s dismissal of the motion for 3.800(a) relief, and we deny

Rutherford’s petition for a writ of habeas corpus.

In his second successive postconviction motion, which was filed after the

death warrant was signed in November 2005, Rutherford argued that newly

discovered evidence showed that Mary Heaton’s involvement in the murder

entitled him to a new trial. Heaton had testified at trial about the circumstances

related to her cashing the check belonging to Mrs. Salamon. The allegedly newly

discovered evidence was in the form of two affidavits:

Rutherford asserts newly discovered evidence in the form of

affidavits by two persons relating statements made by Heaton. In the

first affidavit dated December 16, 2005, Heaton’s former housemate

Alan Gilkerson stated that in the early 1990s, Heaton told him that

“she once killed an old lady with a hammer and made it look like A.D.

Rutherford committed the crime.” Gilkerson stated that Heaton told

him that her motive for “murdering the old lady” was to get money.

In the second affidavit dated December 23, 2005, defense

investigator Michael Glantz stated that in a conversation with Heaton

on December 22, 2005, Heaton confirmed that she knew Gilkerson

and had previously resided with him. However, Heaton denied having

told Gilkerson that she committed the murder in this case. According

to Glantz’s affidavit, Heaton stated that she knew the victim, had been

present at the victim’s home at the time of the murder, had witnessed

Rutherford strike the fatal blow, and had been present when the

victim’s belongings were buried. Heaton claimed that she had

previously provided this information to law enforcement officers

during their investigation of the crime and had also tried to lead the

officers to the location where the victim’s belongings were buried.

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Rutherford, 926 So. 2d at 1107. This Court affirmed the circuit court’s summary

denial, stating:

Heaton’s statements to Gilkerson and Glantz concerning

whether she committed the murder are contradictory on their face. In

her statement to Gilkerson, Heaton confessed to killing Mrs. Salamon.

However, this confession is contradicted by her subsequent statement

to Glantz, in which she stated that it was Rutherford who struck the

fatal blow, killing Mrs. Salamon. When viewed against the

impeachment evidence presented at trial concerning Heaton’s mental

problems and difficulty distinguishing fact from fantasy, Heaton’s

inconsistent statements to Gilkerson and Glantz would only serve to

impeach Heaton’s credibility further. Clearly, this evidence does not

establish that Heaton committed the crime or that Rutherford is

innocent.

At most, these conflicting versions of events suggest that

Heaton’s involvement in the crime may have been greater than was

presented at trial. Even assuming that Heaton played a more

significant role in the crime than was presented at trial, this evidence

fails to satisfy the second prong of Jones when considered

cumulatively with the evidence presented at trial. First, there is no

probability that this evidence would produce an acquittal on retrial.

Although Heaton’s statements could be used to impeach her

credibility and her testimony at trial concerning her involvement in

the crime, these statements would not have contradicted or provided

an innocent explanation for any of the other evidence presented at trial

indicating that Rutherford was the perpetrator. Nor would these

statements have affected [Elizabeth] Ward’s uncontradicted testimony

placing Rutherford in possession of the victim’s check.

Further, there is no probability that this evidence would result

in imposition of a sentence less than death on retrial. In this case,

there was overwhelming evidence of Rutherford’s guilt. Although the

affidavits suggest that Heaton may have had greater involvement in

the murder than she acknowledged at trial, her statements to Gilkerson

and Glantz do not warrant a reasonable belief that Rutherford is less

than wholly culpable for the murder. Despite the fact that Heaton

stated that she was present at the time of the murder and when the

victim’s belongings were buried, Heaton does not state that she did

anything to assist Rutherford in committing the murder or in disposing

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of the victim’s belongings. In addition, Heaton’s statements do not

affect the aggravating factors found by the trial court in this case.

Based on these circumstances, we conclude that the circuit court did

not err in determining that Rutherford was not entitled to an

evidentiary hearing on his newly discovered evidence claim.

Id. at 1109-10.

In Rutherford’s third successive postconviction motion, which is at issue in

this appeal, he argues that the statements of another newly discovered witness,

when considered in conjunction with Gilkerson’s affidavit, entitle him to relief.

This new witness, Brian Adkison, gave the following sworn statement in an

affidavit on September 30, 2006:

1. My name is Brian Adkison. I currently reside at the Walton

County Jail in DeFuniak Springs, Florida. I have known Elizabeth

Bevin for years, and we were neighbors in a trailer park in Crestview,

Florida in the late 1990s.

2. During the time that Elizabeth Bevin was my neighbor, I visited

her home on many occasions. I remember her aunt Mary staying with

her from time to time. Mary was always taking pills, rocking, and

talking. She often said, “Don’t mess with me because I’ve killed

people before.” She mentioned killing a lady in Milton by beating her

to death, with some sort of tool.

3. When Mary would start talking about this, Liz would tell her to

shut up and quit running her mouth. Liz did not want her talking

about this to me. But, one time when Liz wasn’t around to stop her,

Mary told me some details about the lady she’d beaten to death and

how it happened. She told me that she beat the old lady to death when

trying to rob the lady of money and medication. Mary said something

about how she had been at the old lady’s house before, so she knew

what she had. There had been a plan to get the stuff. But when it

went down, I guess it went wrong. I remember very clearly Mary

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saying to me: “I beat her to death so she couldn’t talk.” You don’t

forget when someone tells you something like that.

The circuit court, accepting the allegations contained in the affidavit as true, denied

this claim for relief finding that Rutherford had presented “nothing new” and that

the “affidavit(s) taken independently or cumulatively [are] insufficient to create a

probability of acquittal on re-trial.”

Because the motion was summarily denied, we must accept that Rutherford

could not have known about the evidence at the time of trial by the use of due

diligence as required under the first prong of Jones v. State, 591 So. 2d 911 (Fla.

1991), and that he could not have obtained the evidence earlier by the exercise of

due diligence as required by rule 3.851(d)(2)(a). We agree with the trial court that

Rutherford has failed to satisfy the second prong of Jones, which requires that “the

newly discovered evidence must be of such nature that it would probably produce

an acquittal on retrial.” Id. at 915. In determining whether the evidence compels a

new trial under Jones, the trial court must “consider all newly discovered evidence

which would be admissible,” and must “evaluate the weight of both the newly

discovered evidence and the evidence which was introduced at the trial.” Id. at

916. This determination includes

whether the evidence goes to the merits of the case or whether it

constitutes impeachment evidence. The trial court should also

determine whether this evidence is cumulative to other evidence in the

case. The trial court should further consider the materiality and

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relevance of the evidence and any inconsistencies in the newly

discovered evidence.

Jones v. State, 709 So. 2d 512, 521 (Fla. 1998) (citations omitted).

After reviewing the evidence presented at trial, this Court rejected

Rutherford’s “conten[tion] that when analyzed cumulatively . . . Heaton’s

subsequent statements to Gilkerson and Glantz would probably produce an

acquittal or imposition of a sentence less than death on retrial.” Rutherford, 926

So. 2d at 1109. Rutherford now contends that when considered together, Adkison

and Gilkerson’s statements would, if presented to the jury, probably produce an

acquittal on retrial or result in a sentence less than death. However, the facts in

Adkison’s affidavit do not provide any new information and, as the circuit court

found, are less specific than those facts contained in Gilkerson’s affidavit.

Further, in advancing his claim based on Adkison’s statements, Rutherford

ignores the fact that Heaton’s statements to both Adkison and Gilkerson are still

contradicted by her statements to Glantz. See id. (“Heaton’s statements to

Gilkerson and Glantz concerning whether she committed the murder are

contradictory on their face.”). Moreover, the fact that Heaton told Adkison that

she killed “a lady in Milton by beating her to death, with some sort of tool,” does

not invalidate this Court’s prior determination that

[a]lthough Heaton’s statements could be used to impeach her

credibility and her testimony at trial concerning her involvement in

the crime, these statements would not have contradicted or provided

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an innocent explanation for any of the other evidence presented at trial

indicating that Rutherford was the perpetrator. Nor would these

statements have affected Ward’s uncontradicted testimony placing

Rutherford in possession of the victim’s check.

Id. at 1110.

Adkison’s affidavit also confirms this Court’s prior observation that Heaton

“has suffered from mental difficulties that have impaired her ability to differentiate

fact from fantasy”—a fact that the Court found significant in concluding that “a

reasonable juror’s determination of Rutherford’s guilt would not be shaken by” the

Gilkerson and Glantz affidavits. Id. at 1112. In other words, Heaton is simply not

a reliable witness.

Finally, even if Heaton was involved in the murder, nothing that has been

presented reduces Rutherford’s culpability. Cf. Jones, 709 So. 2d at 526

(concluding that newly discovered evidence and Brady material linking someone

other than the defendant to the murder did not “weaken[] the case against [the

defendant] so as to give rise to a reasonable doubt as to his culpability”) (quoting

Jones v. State, 678 So. 2d 309 (Fla. 1996)). None of the four witnesses who

3. We summarized this testimony in our prior decision:

One witness testified that Rutherford said he planned to kill a woman

and place her body in a bathtub. Another witness testified that

Rutherford said that he would force a woman to write him a check and

then put her in a bathtub, and a third witness testified that Rutherford

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Nor have these statements been contradicted by any subsequent evidence. Ward

has not recanted her testimony about the fact that Rutherford was in the possession

of the check. The fingerprints and palm prints in the bathtub area belong to

Rutherford and his explanation for being in that bathtub area was thoroughly

impeached.

For all the reasons set forth above, we agree with the circuit court that the

Adkison affidavit, when considered cumulatively with all the other evidence, is not

such that it would probably produce an acquittal on retrial. We also conclude that

there is no probability that this evidence would result in the imposition of a life

sentence on retrial. Accordingly, we affirm the circuit court’s summary denial of

relief on this claim and on Rutherford’s claim of actual innocence.

In his last issue on appeal, Rutherford asserts that the circuit court erred in

summarily denying his claim that Florida’s clemency process is arbitrary and

capricious and thus violates the Eighth and Fourteenth Amendments. Again,

Rutherford relies on the ABA Report and argues that he was denied due process by

said that he could get easy money by knocking a woman he worked

for in the head. A fourth witness testified that Rutherford told him on

the day of the murder that he had killed “the old lady” by hitting her

in the head with a hammer, and then had put her in the bathtub.

Rutherford, 926 So. 2d at 1109.

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the dismissal of his second clemency petition because there are no rules governing

The circuit court correctly denied this claim for relief. In King v. State

808 So. 2d 1237, 1241 n.5, 1246 (Fla. 2002), this Court concluded that the

defendant’s claim that Florida’s clemency process violates due process and equal

protection was meritless. In Glock v. Moore, 776 So. 2d 243, 252 (Fla. 2001), this

Court considered the defendant’s claim that he was denied due process during a

second clemency proceeding because he was “denied the right to present

mitigating evidence and denied the right to counsel.” The Court concluded that its

prior decision in Bundy v. State, 497 So. 2d 1209, 1211 (Fla. 1986), controlled:

In Bundy v. State, this Court rejected a similar argument:

In the final claim raised under his 3.850 motion,

appellant contends that he must be allowed time to

prepare and present an application for executive

clemency before sentence may be carried out in this case.

In the death warrant authorizing appellant’s execution,

the governor attests to the fact that “it has been

determined that Executive Clemency, as authorized by

Article IV, Section 8(a), Florida Constitution, is not

appropriate.” It is not our prerogative to second-guess

the application of this exclusive executive function.

4. This flipping of a coin analogy is from Justice O’Connor’s separate

opinion in Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998), in which she

opined that “some minimal procedural safeguards apply to clemency proceedings,”

and that “[j]udicial intervention might, for example, be warranted in the face of a

scheme whereby a state official flipped a coin to determine whether to grant

clemency.” Id. at 289 (O’Connor, J., concurring in part and concurring in the

judgment).

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First, the principle of separation of powers requires the

judiciary to adopt an extremely cautious approach in

analyzing questions involving this admitted matter of

executive grace. Sullivan v. Askew, 348 So.2d 312

(Fla.), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54

L.Ed.2d 159 (1977). As noted in In re Advisory Opinion

of the Governor, 334 So.2d 561, 562-63 (Fla.1976),

“[t]his Court has always viewed the pardon powers

expressed in the Constitution as being peculiarly within

the domain of the executive branch of government.” See

also Ex Parte White, 131 Fla. 83, 178 So. 876 (1938).

497 So.2d 1209, 1211 (Fla.1986), quoted in Provenzano v. State, 739

So.2d 1150, 1155 (Fla.1999). As in Bundy and Provenzano, Glock

now seeks counsel for a second clemency hearing. Although Glock

contends that Provenzano and Bundy differ from this case because the

Governor, rather than Glock, has initiated the clemency proceeding,

this is a distinction without a difference. Moreover, for the reasons

stated in Bundy, we reject Glock’s arguments with regard to his right

to present evidence. Accordingly, we find no due process violation

and no merit to Glock’s clemency claim.

Glock, 776 So. 2d at 252-53.

In Bundy, this Court also declined to “say that the executive branch was

required to go through the motions of holding a second proceeding when it could

well have properly determined in the first that appellant was not and never would

be a likely candidate for executive clemency.” Bundy, 497 So. 2d at 1211.

In Rutherford’s case, there is no dispute that he was given the opportunity to

be heard and was represented by counsel during his first clemency proceeding.

Further, we reject Rutherford’s argument that the ABA Report requires us to

reconsider our prior decisions rejecting constitutional challenges to Florida’s

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clemency process. Accordingly, we affirm the denial of Rutherford’s

constitutional attack on the clemency process.

For the reasons explained above, we affirm the circuit court’s orders denying

Rutherford’s motion for postconviction relief and dismissing Rutherford’s motion

to correct an illegal sentence. We also deny Rutherford’s petition for a writ of

habeas corpus. No motion for rehearing will be entertained.

It is so ordered.

LEWIS, C.J., and WELLS, PARIENTE, QUINCE, and CANTERO, JJ., concur.

ANSTEAD, J., concurs in part and dissents in part with an opinion.

BELL, J., recused.

NO MOTION FOR REHEARING WILL BE ALLOWED.

ANSTEAD, J., concurring in part and dissenting in part.

I concur in the majority opinion in all respects save one, the requirement of

an evidentiary hearing in order to properly evaluate the newly discovered evidence

of Mary Heaton’s role in the murder for which Rutherford is to be executed.

We must remember that it is not only Rutherford’s guilt but also the death

penalty imposed that may be affected by this new evidence. Even without this

evidence a jury voted for death by the narrowest of margins, seven-to-five, just one

vote short of a recommendation for life. With that background it is essential that

the credibility and reliability of this new evidence be evaluated in the crucible of

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an evidentiary hearing where testimony must be presented under oath and the State

given a full opportunity for cross-examination. In turn, and because of the trial

court’s first hand ability to evaluate the evidence presented, our confidence in the

outcome will be qualitatively increased. The trial jury’s narrow vote demands no

less.

Two Cases:

On Appeal from the Circuit Court in and for Santa Rosa County,

Paul Rasmussen, Judge - Case No. 85-I-476

And an Original Proceeding – Habeas Corpus

Linda McDermott and Martin J. McClain of McClain and McDermott, P.A.,

Wilton Manors, Florida,

for Appellant

Charles J. Crist, Jr., Attorney General, and Charmaine M. Millsaps, Assistant

Attorney General, Tallahassee, Florida,

for Appellee