IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-2023

ARTHUR DENNIS RUTHERFORD,

Petitioner,

CHARLES J. CRIST, Attorney General of Florida,

JEB BUSH, Governor of Florida,

JAMES R. MCDONOUGH, Secretary, Florida Department of Corrections,

Respondents.

MOTION FOR OPPORTUNITY TO BE HEARD

COMES NOW, A.D. RUTHERFORD, Petitioner, by and through

undersigned counsel and moves this Court to allow him the

opportunity to be heard and as grounds therefore asserts:

1. Mr. Rutherford is presently scheduled to be executed on

October 18, 2006, at 6:00 p.m.

2. On October 17, 2006, Mr. Rutherford filed a Petition

Seeking to Invoke this Court’s All Writs Jurisdiction based on

Mr. Rutherford’s recently learning that on August 16, 2006, the

Department of Corrections promulgated a new lethal injection

protocol in order to establish new procedures for all subsequent

executions.

3. A few hours later, this Court entered an order

requiring Respondent’s to respond by 1:00 p.m., but precluding

Mr. Rutherford from filing a reply.

4. Shortly before 1:00 p.m., undersigned received the

1A cursory review of the two protocols makes clear that

there have been significant changes, contrary to the State’s

argument.

State’s response which attached the lethal injection protocol

which was adopted on August 16, 2006. Prior to today, the State

had refused to provide Mr. Rutherford with the new protocol,

despite his requests and despite pending litigation before the

various state, federal and the United States Supreme Court.

5. Mr. Rutherford respectfully requests that this Court

allow him the opportunity to be heard as to the State’s arguments

that this Court does not have subject matter jurisdiction to hear

his claim and that protocol enacted August 16, 2006, is not new.1

6. At its core, due process means that a party has an

opportunity to be heard. In light of the State’s disclosure this

morning, Mr. Rutherford must be allowed to be heard.

WHEREFORE, Petitioner, A.D. Rutherford, by and through

undersigned counsel, respectfully requests that this Court allow

Mr. Rutherford the opportunity to file a reply to the

Respondent’s arguments.

I HEREBY CERTIFY that a true and correct copy of the

foregoing motion has been furnished via electronic mail, to

Carolyn Snurkowski, Deputy Attorney General, Office of the

Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-

1050, and Charmaine Millsaps, Assistant Attorney General, Office

of the Attorney General, The Capitol, PL-01, Tallahassee, Florida

32399-1050, on this 17th day of October, 2006.

/s/ Linda McDermott

LINDA MCDERMOTT

Fla. Bar No. 0102857

/s/ Martin McClain

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. Rutherford