TABLE OF AUTHORITIES.......................................... ii
STATEMENT OF THE CASE AND FACTS................................ 1
SUMMARY OF THE ARGUMENT........................................ 4
ARGUMENT....................................................... 5
ISSUE I ...................................................... 5
ISSUE II .................................................... 16
ISSUE III ................................................... 24
CONCLUSION.................................................... 26
CERTIFICATE OF SERVICE........................................ 27
CERTIFICATE OF FONT COMPLIANCE................................ 27
WHETHER THE TRIAL COURT ERRED IN SUMMARILY DENYING
GROSSMAN’S CLAIM OF INEFFECTIVE ASSISTANCE AT PENALTY
PHASE

TABLE OF AUTHORITIES
Cases
Adams v. State,
543 So. 2d 1244 (Fla. 1989) ................................. 13
Allen v. Butterworth,
756 So. 2d 52 (Fla. 2000) ............................... 11, 14
Amendments to Florida Rule of Criminal
Procedure 3.220 Discovery,
674 So. 2d 83 (Fla. 1995) ................................... 13
Atkins v. State,
663 So. 2d 624 (Fla. 1995) ................................... 9
Bogle v. State,
655 So. 2d 1103 (Fla. 1995) ................................. 13
Brown v. State,
800 So. 2d 223 (Fla. 2001) .................................. 25
Bundy v. State,
497 So. 2d 1209 (Fla. 1986) ................................. 22
Card v. State,
453 So. 2d 17 (Fla. 1984) ................................... 13
Cheshire v. State,
568 So. 2d 908 (Fla. 1990) .................................. 13
Christopher v. State,
489 So. 2d 22 (Fla. 1986) ................................... 10
Downs v. State,
740 So. 2d 506 (Fla. 1999) ................................... 9
Furman v. Georgia,
408 U.S. 238 (1972) ......................................... 16
Gaskin v. State,
737 So. 2d 509 (Fla. 1999) .......................... 10, 11, 14
Giglio v. United States,
405 U.S. 150 (1972) ................................. 16, 18, 20
Glock v. Moore,
776 So. 2d 243 (Fla. 2001) .................................. 22
Grossman v. Crosby,
359 F.Supp.2d 1233 (M.D. Fla. 2005) .......................... 2
Grossman v. Crosby,
880 So. 2d 1211 (Fla. 2004) .................................. 3

Grossman v. McDonough,
466 F.3d 1325 (11th Cir. 2006),
cert. denied, 550 U.S. 958 (2007) ............................ 2
Grossman v. State,
5 So. 3d 668 (Fla. 2009) ..................................... 2
Grossman v. State,
525 So. 2d 833 (Fla. 1988),
cert. denied, 489 U.S. 1071 (1989) ........................... 2
Grossman v. State,
708 So. 2d 249 (1997) ................................... passim
Grossman v. State,
932 So. 2d 192 (Fla. 2006) ................................... 2
Harbison v. Bell,
129 S. Ct. 1481 (2009) ...................................... 22
Henyard v. State,
992 So. 2d 120 (Fla. 2008) .................................. 14
Hill v. State,
921 So. 2d 579 (Fla. 2006) .................................. 14
Johnson v. State,
2010 WL 121248 (Fla. Jan. 14, 2010) ..................... 18, 20
Johnson v. State,
660 So. 2d 637 (Fla. 1995) .................................. 13
Johnston v. State,
2010 WL 183984 (Fla. Jan. 21, 2010) ......................... 21
Jones v. State,
652 So. 2d 346 (Fla. 1995) .................................. 13
King v. State,
808 So. 2d 1237 (Fla. 2002) ................................. 22
Lemon v. State,
498 So. 2d 923 (Fla. 1986) .......................... 10, 12, 14
Lockett v. Ohio,
438 U.S. 586 (1978) ......................................... 17
Marek v. State,
8 So. 3d 1123 (Fla. 2009) ............................... passim
Massaro v. United States,
538 U.S. 500 (2003) ................................. 11, 12, 14
Porter v. McCollum,
130 S. Ct. 447 (2009) ............................... 10, 12, 14

Provenzano v. State,
739 So. 2d 1150 (Fla. 1999) ................................. 22
Reaves v. State,
826 So. 2d 932 (Fla. 2002) .................................. 25
Ring v. Arizona,
536 U.S. 584 (2002) .......................................... 3
Roper v. Simmons,
543 U.S. 551 (2005) .......................................... 3
Schwab v. State,
969 So. 2d 318 (Fla. 2007) .................................. 14
State v. Coney,
845 So. 2d 120 (Fla. 2003) ........................... 5, 16, 24
Stewart v. State,
558 So. 2d 416 (Fla. 1990) .................................. 13
Strickland v. Washington,
466 U.S. 668 (1984) .......................................... 7
Topps v. State,
865 So. 2d 1253 (Fla. 2004) .................................. 9
Walls v. State,
641 So. 2d 381 (Fla. 1994) .................................. 13
Walton v. State,
3 So. 3d 1000 (Fla. 2009) ............................ 5, 16, 24
Wiggins v. Smith,
539 U.S. 510 (2003) .......................................... 3
Wright v. State,
857 So. 2d 861 (Fla. 2003) ................................... 9
Other Authorities
§ 921.141(6), Fla. Stat........................................ 6
§ 922.07, Fla. Stat........................................... 25
Fla.R.Crim.P. 3.811(c)........................................ 24
Fla.R.Crim.P. 3.851(e)(2)...................................... 9
Fla.R.Crim.P. 3.851(f)(5)(B).................................. 12

STATEMENT OF THE CASE AND FACTS
On January 12, 2010, Governor Charlie Crist signed a death
warrant in this case, and execution has been scheduled for 6:00
p.m. on Tuesday, February 16, 2010. Grossman is on death row
for the December 13, 1984 murder of Florida Fish and Game
Officer Peggy Park. This appeal seeks review of the denial of
his third successive motion to vacate his convictions and
sentences, which was filed in the circuit court on Monday,
January 18, 2010 (V1/18-40).

Following his October, 1985 trial, Grossman was convicted
as charged of first-degree murder, burglary, and robbery.
Following a penalty phase, a unanimous jury recommended the
death penalty, which was imposed by the Honorable Crockett
Farnell, Circuit Court Judge. Grossman’s death sentence is
supported by three aggravating circumstances: (1) the murder was
committed while engaged in the commission of or an attempt to
commit, or flight after committing or attempting to commit, the
crime of robbery or burglary; (2) the murder was committed for
the purpose of avoiding or preventing a lawful arrest and to
disrupt or hinder the lawful exercise of a government function
or the enforcement of laws; and (3) the murder was especially
wicked, evil, atrocious, or cruel. In mitigation, Grossman
asserted that he had no history of violence, that he was only

Governor Bob Martinez signed a death warrant in March,
1990, which was stayed by this Court in April, 1990. On August
13, 1990, Grossman filed a motion for postconviction relief, and
an evidentiary hearing was conducted on the motion May 31 - June
2, 1994. This Court affirmed Judge Farnell’s denial of relief
and denied a state petition for writ of habeas corpus in the
same opinion. Grossman v. State, 708 So. 2d 249 (1997).

Federal habeas corpus proceedings confirmed the validity of
the convictions and sentences. Grossman v. McDonough, 466 F.3d
1325 (11th Cir. 2006), cert. denied, 550 U.S. 958 (2007);
Grossman v. Crosby, 359 F.Supp.2d 1233 (M.D. Fla. 2005).
Successive challenges to Grossman’s convictions and sentences
have also been repeatedly rejected. Grossman v. State, 5 So. 3d
668 (Fla. 2009) [lethal injection claims]; Grossman v. State,
932 So. 2d 192 (Fla. 2006) (table) [claim based on Roper v.

Simmons, 543 U.S. 551 (2005)]; Grossman v. Crosby, 880 So. 2d
1211 (Fla. 2004) (table) [claims based on Ring v. Arizona, 536
U.S. 584 (2002), and Wiggins v. Smith, 539 U.S. 510 (2003)].
On January 20, 2010, the circuit court held a case
management conference on Grossman’s most recent motion to vacate
(V1/128-174). The court thereafter summarily denied all relief
(V2/175-183). This appeal follows.

SUMMARY OF THE ARGUMENT
The court below properly denied Grossman’s successive
motion for postconviction relief. The court’s finding that the
motion was untimely is well supported by the record; the motion
does not rely on any newly discovered facts or any major change
in the law. In addition, the individual claims are procedurally
barred, refuted by the record, and meritless. No evidentiary
hearing or stay of execution is warranted on Grossman’s
allegations.

Grossman’s first issue asserts that the court below should
have permitted him to develop factual support for his claim that
trial counsel rendered ineffective assistance in the penalty
phase of his capital trial. According to Grossman, he was
improperly denied the opportunity to present evidence on this
claim in his initial postconviction proceeding, so another
evidentiary hearing is now warranted. In denying this claim,
Judge Bulone expressly found it to be successive, untimely, and
without merit (V2/178-80). Because Grossman’s claim was
summarily denied, review is de novo. Walton v. State, 3 So. 3d
1000, 1005 (Fla. 2009); State v. Coney, 845 So. 2d 120, 137
(Fla. 2003).

As in Walton, Grossman’s motion raised a claim that he has
previously presented in postconviction. His prior allegation
that counsel were ineffective in failing to investigate and
present mental mitigation was denied on the merits following an
evidentiary hearing, and this ruling was upheld on appeal (PC
ROA V16/2831-37); Grossman, 708 So. 2d 250-51. No new facts or
change in law has been identified to justify reconsideration of

A review of the record in this case fully supports both the
procedural bar applied below and the original rejection of this
claim in Grossman’s initial postconviction challenge to his
convictions and sentences. Grossman’s first postconviction
motion included two claims regarding his mental state at the
time of the crime. In Claim 5A, Grossman asserted that his
trial attorneys provided ineffective assistance of counsel by
failing to investigate and present an adequate penalty phase
defense. Grossman specifically alleged that counsel should have
presented evidence supporting the “mental mitigation factors” in
Sections 921.141(6)(b) and (f), Florida Statutes (PC. ROA
V1/192). In Claim 6, Grossman claimed that he had been denied a
competent mental health examination. Grossman specifically
asserted that counsel had retained Dr. Sidney Merin prior to
trial, but that counsel had failed to provide Dr. Merin with the
necessary background information and, consequently, Merin had
failed to adequately assess Grossman’s mental state (PC. ROA
V2/329-337).

In support of these claims, Grossman attached the same
report from Dr. Brad Fisher attached to his third successive
motion filed below on January 18, 2010 (PC. ROA V5/846). Dr.
Fisher, a cum laude graduate of Harvard University who
specialized in forensic evaluations, examined Grossman on March
28, 1990. His testing did not reveal any signs of “a current
psychotic condition or of any major affective disorder” (PC. ROA
V5/851). However, Dr. Fisher noted that his testing revealed
“soft signs of organic impairment,” supported by Grossman’s
history of “chronic and extensive drug and alcohol dependence,”
and that “[f]urther testing would be required to determine the
nature and extent of this probable mental disability” (PC. ROA
V5/850-51).

On October 18, 1991, the circuit court granted an
evidentiary hearing on Grossman’s Claim 5, and denied Claim 6 as
procedurally barred, insufficiently pled, and meritless (PC. ROA
V10/1802-04). The court specifically found that, even if the
substance of Grossman’s allegations had been introduced into
evidence, his allegations in Claim 6 were insufficient to show
prejudice under Strickland v. Washington, 466 U.S. 668 (1984)
(PC. ROA V10/1804). This finding was expressly upheld on
appeal. Grossman, 708 So. 2d at 252.

Prior to the 1994 evidentiary hearing, the State filed a
motion requesting permission to speak with Dr. Merin, asserting
Grossman had waived any privileged information by challenging
his counsels’ performance with regard to the failure to develop
mental health mitigation and noting that Dr. Fisher had
specifically reviewed and relied on Dr. Merin’s report (PC. ROA
V11/1959-60). Grossman’s attorneys responded that they would
not present any witness that relied on Dr. Merin’s information
(PC. ROA V11/1970-71). The court denied the motion and offered
to revisit the issue if any such testimony was offered (PC. ROA
V11/1972).

Despite securing a hearing on his claim of ineffective
assistance for failing to present evidence of mental mitigation,
Grossman did not present Dr. Fisher as a witness at the
evidentiary hearing in 1994. The only expert offered by the
defense was Kevin Sullivan, a licensed clinical social worker
(PC. ROA V11/2070-2122). Sullivan testified that Grossman was
raised in a dysfunctional environment, and his development had
been negatively impacted by a number of factors, including that
Grossman had been given inappropriate caretaking
responsibilities from a young age; that his family had relocated
at a critical time in his development; and that he experienced

Given this history, the lower court was compelled to find a
procedural bar when Grossman reasserted this same claim of
ineffective assistance of counsel in his fourth postconviction
motion filed in 2010. The court noted that Grossman’s
successive motion “does not state why claims which have been
previously presented to this court should be relitigated or why
the claims were not raised in the previous three rule 3.851
motions” (V2/177). This failure to comply with Rule 3.851(e)(2)
establishes that the entire motion was untimely and subject to
summary denial on that basis alone. Marek, 8 So. 3d at 1127.

In addition, there are several other independent grounds
supporting the procedural bar as to this issue. Because this
exact claim was previously litigated, the prior ruling
constitutes law of the case and cannot be revisited. Topps v.
State, 865 So. 2d 1253, 1255 (Fla. 2004) (discussing application
of res judicata to claims previously litigated on the merits).
Beyond the law of the case doctrine, it is well established that
Rule 3.851 prohibits reconsideration of prior postconviction
claims. Marek, 8 So. 3d at 1129; Wright v. State, 857 So. 2d
861, 868 (Fla. 2003); Downs v. State, 740 So. 2d 506, 518 n. 10
(Fla. 1999); Atkins v. State, 663 So. 2d 624, 626 (Fla. 1995);

Disregarding the fact that he was granted an evidentiary
hearing on his Claim 5 in 1994, Grossman now focuses exclusively
on the fact that his Claim 6 was summarily denied in 1991.
Grossman’s argument to this Court is three-fold; he asserts (1)
Claim 6 in his initial motion was improperly denied under the
standard set forth in Gaskin v. State, 737 So. 2d 509 (Fla.
1999); (2) his successor motion filed below was improperly
summarily denied under the standard set forth in Lemon v. State,
498 So. 2d 923 (Fla. 1986); and (3) he can now offer evidence of
nonstatutory mental mitigation, which he claims must be
considered newly discovered evidence because, allegedly, until
Porter v. McCollum, 130 S. Ct. 447 (2009) was decided, “Florida
courts did not consider non-statutory mental mitigation as
mitigation” (Appellant’s Initial Brief, p. 19). His argument
offers no basis for finding error in the summary resolution of
this claim below.

fully litigate his claim of ineffective assistance of counsel in
his initial postconviction challenge, and he claimed on appeal
at that time that his Claim 6 (alleging incompetent mental
health assistance) should not have been summarily denied. This
Court rejected that claim, specifically quoting the trial
court’s finding that Grossman’s conclusory allegations were
insufficient to demonstrate the necessary prejudice. Grossman,
708 So. 2d at 252.

Although Grossman now cites Gaskin, Massaro v. United
States, 538 U.S. 500 (2003), and Allen v. Butterworth, 756 So.
2d 52 (Fla. 2000), none of those cases suggest that the 1995
denial of relief in this case must be revisited, or even that
this Court’s previous rejection of this claim was improper.
Gaskin and Allen discuss the standards to determine the need for
an evidentiary hearing on an initial motion; they are not
inconsistent with this Court’s previous findings in this case.
In Massaro, a federal prosecution which relied on federal
statutory law, the United States Supreme Court rejected a
procedural default that had been applied to a claim of
ineffective assistance of counsel which could have been, but was
not, asserted on direct appeal. As Grossman’s claim of
ineffective assistance of counsel was fully explored in his

Grossman’s assertion that application of the standard
identified in Lemon should compel an evidentiary hearing is also
without merit. The court below applied the proper standard in
considering Grossman’s current successive claim, pursuant to
Florida Rule of Criminal Procedure 3.851(f)(5)(B). Grossman’s
motion, files and records “conclusively show that the movant is
entitled to no relief” since the claims he raises are
procedurally barred and affirmatively refuted by the record.
This is sufficient under Lemon. In Lemon, although the
defendant was under an active death warrant, he had not
previously sought postconviction relief and, unlike in
Grossman’s case, there was no procedural bar to preclude
postconviction consideration of Lemon’s case.

Finally, Grossman’s reliance on Porter v. McCollum, 130 S.
Ct. 447 (2009), to suggest that any evidence of nonstatutory
mental mitigation should be considered newly discovered evidence
in this case is easily refuted. Numerous cases clearly
recognize that mental mitigation which does not rise to the
level of the statutory mitigators can be considered as
nonstatutory mitigation, and this principle was well established
at the time of Grossman’s trial and certainly at the time of his

initial postconviction proceedings. See Card v. State, 453 So.
2d 17, 24 (Fla. 1984) (noting claim that mental mitigation that
did not rise to the level of statutory mitigation should be
considered as nonstatutory mitigation); Adams v. State, 543 So.
2d 1244, 1248 (Fla. 1989) (noting witness had concluded “there
were many nonstatutory mental health factors available”);
Stewart v. State, 558 So. 2d 416 (Fla. 1990); Walls v. State,
641 So. 2d 381, 389 (Fla. 1994); Jones v. State, 652 So. 2d 346,
351 (Fla. 1995) (finding jury instructions sufficient to inform
jury it could consider “nonstatutory mental mitigation” and
noting that Cheshire v. State, 568 So. 2d 908 (Fla. 1990),
stands for the proposition that any mental or emotional
disturbance must be considered as a nonstatutory mitigating
circumstance); Bogle v. State, 655 So. 2d 1103, 1109 (Fla.
1995); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995); see
also Amendments to Florida Rule of Criminal Procedure 3.220
Discovery, 674 So. 2d 83, 84 (Fla. 1995) (adopting Rule 3.202 on
Expert Testimony of Mental Mitigation During Penalty Phase of
Capital Trial, including 3.202(c), which requires a statement
“listing the statutory and nonstatutory mental mitigating
circumstances the defendant expects to establish”). As these
and many other cases demonstrate, Grossman’s suggestion that the

Grossman’s argument offers no real analysis to contrast his
allegations with those at issue in Gaskin, Lemon, Allen, Massaro
or Porter, and he does not specifically identify any potential
evidence that he would present if granted an evidentiary hearing
in this case. He has clearly failed to demonstrate any error in
the summary rejection of this claim entered below.

This Court routinely applies a procedural bar to mental
health mitigation claims raised on the eve of execution. Marek,
8 So. 3d at 1129 (rejecting reconsideration of previously
litigated claim of ineffective assistance of counsel after
signing of death warrant); Henyard v. State, 992 So. 2d 120,
130-131 (Fla. 2008); Schwab v. State, 969 So. 2d 318, 325-26
(Fla. 2007); Hill v. State, 921 So. 2d 579 (Fla. 2006).
Grossman’s case provides a strong basis for the procedural bar,
since his claim was specifically raised and rejected previously.
He offers no new facts and no legal reason for reconsideration
of this issue.

words, from a number of different sources, since Grossman was so
quick to boast about what he had done. A new discussion of any
possible mental mitigation which was known but strategically not
presented in prior postconviction proceedings cannot, as a
matter of law, make any difference. Since Grossman’s successive
motion was procedurally barred and refuted by the record, the
court below properly summarily denied this claim.

Grossman also challenges the denial of his claim that
Florida’s death penalty is unconstitutional as applied in this
case because it is arbitrary and capricious in violation of
Furman v. Georgia, 408 U.S. 238 (1972). The court below denied
this claim as procedurally barred and without merit (V2/181-82).
As this claim was summarily denied, review is de novo. Walton,
3 So. 3d at 1005, State v. Coney, 845 So. 2d 120, 137 (Fla.
2003).

Grossman alleges that his death sentence is
unconstitutional because (1) he was denied the opportunity to
present mitigating evidence to the jury; (2) the State withheld
material and exculpatory evidence in violation of Giglio v.
United States, 405 U.S. 150 (1972); and (3) he was denied
clemency. As these claims were procedurally barred and without
merit, the court below properly denied this issue.

ineffective assistance of counsel regarding trial counsels’
decision to forego presenting mental health mitigating evidence
is procedurally barred. Grossman has offered no additional
argument in Claim Two, but merely alleges, without any record
citations, that he was prevented from presenting such evidence
to the jury.

At the penalty phase proceedings, Grossman presented
mitigating evidence from four witnesses: Myra Grossman (mother);
Thomas Campbell (correctional officer); Steven Martakas (best
friend); and Carolyn Middleton (correctional social worker).
(DA. ROA V15/2607-51). Grossman has not cited to any ruling by
the trial court prohibiting him from presenting any other
mitigating evidence. In fact, the record clearly demonstrates
that Grossman’s trial counsel was aware that, pursuant to
Lockett v. Ohio, 438 U.S. 586 (1978), he could present “any
other aspect of the defendant’s character or record and any
other circumstances of the offense” as mitigating evidence.
(DA. ROA V2/239-40; V15/2602-03). The trial court ultimately
instructed the jury on the statutory mitigating factor of the
defendant’s age and also utilized the standard jury instruction
informing the jury that they could consider “any other aspect of
the defendant’s character or record and any other circumstances
of the offense” as a mitigating factor. Thus, Grossman’s

In his next sub-claim, Grossman alleges that the State
violated Giglio v. United States, 405 U.S. 150 (1972), regarding
witness Charles Brewer, and further alleges that he is being
treated differently than Paul Beasley Johnson. See Johnson v.
State, 2010 WL 121248 (Fla. Jan. 14, 2010) (reversing death
sentence based on newly discovered evidence of prosecutor’s
notes indicating that jailhouse snitch was acting at the
direction of law enforcement officers).1 Grossman’s claim was
procedurally barred, without merit, and properly summarily
denied.
In his original postconviction proceedings, Grossman raised
the identical claim regarding witness Charles Brewer, and relied
on the same 1990 affidavit attached to his current motion. The
circuit court rejected the claim after conducting an evidentiary
hearing, and this Court affirmed:
Grossman claims that inmate Charles Brewer, who
testified for the State, was acting as a State agent
when he procured incriminating information from
Grossman. The trial court addressed this claim:

Defendant was being held there awaiting trial,
was a state agent, and the State withheld this
fact along with an agreement that Mr. Brewer had
reached with prosecutors regarding charges that
were pending against Mr. Brewer. Mr. Brewer
testified that he had his brother contact law
enforcement after he heard Defendant discussing
the case. Mr. Brewer said that he talked to the
homicide detectives only one time and that was
when they took his taped statement.
Detective Robert Rhodes testified that he
taped Mr. Brewer's statement on July 25, 1985,
and that was the only time he ever met with Mr.
Brewer. The State did not make any deals with
Mr. Brewer in exchange for the statement, and
Detective Rhodes did not suggest questions for
Mr. Brewer to ask the Defendant or ask Mr.
Brewer to be an agent for the State.
The State Attorney, Bernie McCabe,
testified that he interviewed Mr. Brewer at the
State Attorney's Office prior to the trial and
that he emphasized to Mr. Brewer that there were
no deals in exchange for Mr. Brewer's testimony.
Defendant's claim that Mr. Brewer was a state
agent at the time that he discussed the Peggy
Park murder with Defendant and that the State
struck a deal with Mr. Brewer in exchange for
his testimony is without merit.
Competent substantial evidence in the record
supports the trial court's finding that Brewer was not
a State agent. We find no error.

Grossman, 708 So. 2d at 251-52. Obviously, Grossman’s attempt
to relitigate the same claim in his 2010 successive motion was
procedurally barred. See Marek, 8 So. 3d at 1129 n.3 (noting
that recent United States Supreme Court opinion has “no impact
on the Florida courts’ policy of not allowing defendants to

Furthermore, Grossman’s attempt to compare his case to Paul
Beasley Johnson’s case is without merit as the two cases are
clearly distinguishable. In Johnson, this Court reversed the
defendant’s death sentence based on newly discovered evidence of
the prosecutor’s notes which the court found indicated that a
jailhouse snitch was acting as an agent at the direction of law
enforcement officers. This Court found that the prosecutor
presented false testimony and argument at the motion to suppress
in violation of Giglio, but found the error harmless in regards
to the guilt phase. However, this Court reversed Johnson’s
death sentence because the inadmissible testimony of the
jailhouse snitch was material to the jury’s 7 to 5 death
recommendation.

Unlike Johnson, Grossman’s claim is not based on newly
discovered evidence, but rather, is based on a 1990 affidavit
from Charles Brewer which was made available to Grossman’s
original postconviction counsel and previously utilized in his
1994 evidentiary hearing. While Grossman’s appellate brief
provides additional historical facts to support his current
claim, they are still facts that were fully developed at the
1994 evidentiary hearing. Grossman neglects to outline the

As previously noted when analyzing this claim, Grossman’s
claim that Brewer “was a state agent at the time that he
discussed the Peggy Park murder with Defendant and that the
State struck a deal with Mr. Brewer in exchange for his
testimony is without merit.” Grossman, 708 So. 2d at 252.
Because this Court has previously rejected this claim and
Grossman has failed to establish any legal basis for
relitigating this issue, this Court should summarily deny the
instant sub-claim.
In his final sub-claim, Grossman alleges that his death
sentence is arbitrary and capricious because he has not had the
opportunity to have a recent clemency proceeding. Grossman
acknowledges that he had a full clemency proceeding in 1988, and
alludes to a renewed clemency proceeding in February, 2009 which
was allegedly abandoned, and argues that he should be granted
postconviction relief because the Governor was not aware of the
newly discovered evidence discussed in his successive motion.

Bundy v. State, 497 So. 2d 1209, 1211 (Fla. 1986) (“It is not
our prerogative to second-guess the application of this
exclusive executive function”). This Court has uniformly
rejected eleventh-hour “clemency” claims in death warrant
proceedings and has repeatedly reaffirmed Bundy. Rutherford v.
State, 940 So. 2d 1112, 1121-1123 (Fla. 2006) (rejecting
argument that “the ABA Report requires us to reconsider our
prior decisions rejecting constitutional challenges to Florida’s
clemency process”); King v. State, 808 So. 2d 1237, 1241 n. 5,
1246 (Fla. 2002); Glock v. Moore, 776 So. 2d 243, 252 (Fla.
2001); Provenzano v. State, 739 So. 2d 1150, 1155 (Fla. 1999).

Grossman was provided with a full clemency hearing while
represented by attorney James Martin in October, 1988. The
denial of clemency was revisited in February, 2009, prior to the
signing of the current death warrant. Grossman has cited no
irregularities in his clemency review or any other basis to
reject the well-settled precedent rejecting this claim.
Grossman was neither abandoned by counsel nor left alone to
navigate the clemency process from his jail cell. See Harbison
v. Bell, 129 S. Ct. 1481 (2009). The warrant issued by Governor
Crist on January 12, 2010, attests that “it has been determined
that Executive Clemency, as authorized by Article IV, Section
8(a), Florida Constitution, is not appropriate.”

Grossman’s last issue challenges the dismissal of his claim
that he may be incompetent to be executed. The court below
found the claim was not properly raised because (1) it is
premature and (2) judicial review is only available in the
Eighth Judicial Circuit pursuant to Rule 3.811(d)(1) (V2/182-
83). Review of this issue is de novo. Walton, 3 So. 3d at 1005
Coney, 845 So. 2d at 137.

This Court has repeatedly upheld the summary rejection of
this issue. As Grossman acknowledged at the hearing below
(V1/147), this claim was not properly subject to consideration;
judicial review of competency to be executed may only be
provided after the Governor has explored the issue and rejected
a claim of incompetency. Rule 3.811(c) expressly provides that
“No motion for a stay of execution pending hearing, based on
grounds of the prisoner's insanity to be executed, shall be
entertained by any court until such time as the Governor of
Florida shall have held appropriate proceedings for determining
the issue pursuant to the appropriate Florida Statutes.” This
Court has repeatedly rejected claims of incompetency which are
offered prior to the Governor’s determination under Section

CONCLUSION
WHEREFORE, the State respectfully requests that this
Honorable Court affirm the Order filed below denying Grossman’s
third successive motion for postconviction relief.
Respectfully submitted,
BILL MCCOLLUM
ATTORNEY GENERAL
_/s/ Carol M. Dittmar____________
CAROL M. DITTMAR
Senior Assistant Attorney General
Florida Bar No. 0503843
carol.dittmar@myfloridalegal.com
/s/ Stephen D. Ake______________
STEPHEN D. AKE
Assistant Attorney General
Fla. Bar No. 14087
3507 E. Frontage Road, Suite 200
Tampa, Florida 33607-7013
Telephone: (813) 287-7910
Facsimile: (813) 281-5501
stephen.ake@myfloridalegal.com
CO-COUNSEL FOR APPELLEE

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by electronic transmission to Ali
A. Shakoor, Assistant Capital Collateral Counsel, Capital
Collateral Regional Counsel - Middle Region, 3801 Corporex Park
Dr., Suite 210, Tampa, Florida 33619, shakoor@ccmr.state.fl.us
this 28th day of January, 2010.
_/s/ Carol M. Dittmar____________
COUNSEL FOR APPELLEE