The Commission on Capital Cases updates this information regularly.  This information, however, is subject to change and may not reflect the latest status of an inmate’s case and should not be relied upon for statistical or legal purposes. 

 

SCHWAB, Mark (W/M)

DC #    111129

DOB:   12/16/68

 

­­­­Eighteenth Judicial Circuit, Brevard County, Case #91-7249-CF-A

Sentencing Judge: The Honorable Edward Richardson

Attorney, Trial: Brian Onek – Assistant Public Defender

Attorney, Direct Appeal: Michael S. Becker – Assistant Public Defender

Attorneys, Collateral Appeals:  Mark Gruber & Daphney Gaylord – CCRC-M

 

Date of Offense: 04/18/91

Date of Sentence: 07/01/92

Date of Execution: 07/01/08

 

Circumstances of Offense:

 

Mark Schwab was convicted and sentenced to death for the murder of eleven-year-old Junny Rios-Martinez.  On 04/18/91, Junny Rios-Martinez was kidnapped, raped, and murdered.  His body was discovered on 04/21/91.

 

Schwab was released from prison in March of 1991 after serving three years for sexual assault.  During the same month, a picture of Junny Rios-Martinez, the victim, was published in the newspaper.  Schwab saw the picture and called the family on the phone claiming that he was writing an article on the boy.  Through this action and the promise of assisting the boy in a acquiring a contract to represent a surfing company, Schwab became friendly with the boy’s family. 

 

On 04/18/91, a schoolmate of Junny’s reported that Junny had gotten into a U-Haul truck with a man.  On 04/20/91, Schwab called his aunt in Ohio and told her that someone named “Donald” had made him kidnap and rape Rios-Martinez with threats of killing Schwab’s mother.  On 04/21/91, the police were questioning Schwab’s aunt when Schwab called.  The police recorded and traced the phone call with her permission.  Upon learning Schwab’s location, the police arrested Schwab in a neighboring Ohio town.  Schwab told police where to find the body of Junny Rios-Martinez, which was discovered in a rural part of the county inside of a footlocker.

 

Current Incarceration History in the State of Florida

 

Offense Date	Offense	Sentence Date	County	Case No.	Sentence Length
7/20/87	Sexual Battery/Threat w/Deadly Weapon	7/1/92	Brevard	8703147	Life

 

Brevard County Case #87-3147-CF

 

On 02/22/88, Schwab pled guilty to two counts of Sexual Battery and was sentenced to eight years in prison and 15 years on probation.  The agreement included the waiving of five counts, including Lewd and Lascivious Assault upon a Child, False Imprisonment, and three counts of Sexual Battery.  Schwab’s community supervision was revoked, and he was resentenced to Life on 07/01/92.

 

Trial Summary:

 

05/15/91          Indicted on the following counts:

Count I:           First-Degree Murder (Junny Rios-Martinez)

Count II:         Sexual Battery upon a Child under the Age of 13

Count III:        Kidnapping a Child under the Age of 13

                       Schwab requested to not have a jury trial.

05/22/92          Adjudicated guilty for each count of the indictment.

07/01/92          Sentenced as follows:

Count I:           First-Degree Murder (Junny Rios-Martinez) – Death

Count II:         Sexual Battery upon a Child under the Age of 13 – Life

Count III:        Kidnapping a Child under the Age of 13 – Life

 

Appeals Summary:

 

Florida Supreme Court – Direct Appeal

FSC #80,289

636 So. 2d 3

 

08/06/92          Appeal filed.

03/03/94          FSC affirmed the conviction and sentence.

05/16/94          Rehearing denied.

06/15/94          Mandate issued.

 
United States Supreme Court – Petition for Writ of Certiorari

USSC #94-5714

513 U.S. 950

 

08/26/94          Petition filed.

10/17/94          Petition denied.

 

Circuit Court – 3.850 Motion

CC #91-7249-CF-A

 

12/18/95          Motion filed.

10/13/99          Motion denied.

 

Florida Supreme Court – 3.850 Appeal

FSC #97,008

814 So. 2d 402

 

11/12/99          Appeal filed.

03/28/02          Denial of 3.850 Motion affirmed.

04/29/02          Mandate issued.

 

Florida Supreme Court – Petition for Writ of Habeas Corpus

FSC #00-1629

814 So. 2d 402

 

08/10/00          Petition filed.

03/28/02          Petition denied.

04/29/02          Mandate issued.

 

United States District Court, Middle District – Petition for Writ of Habeas Corpus

USDC #03-CIV-536

 

04/29/03          Petition filed.

06/30/05          Petition dismissed.

 

United States Court of Appeals, 11^th Circuit – Habeas Appeal

USCA# 05-14253

451 F. 3d 1308

 

08/01/05          Appeal filed.

06/15/06          USCA affirmed the denial of petition.

 

United States Supreme Court – Petition for Writ of Certiorari

USSC# 06-7664

127 S. Ct. 1126

 

11/06/06          Petition filed.

01/16/07          USSC denied petition.

 

Circuit Court – 3.851 Motion

CC #91-7249-CF-A

 

08/15/07          Motion filed.

08/17/07          Motion denied.

 

Florida Supreme Court – 3.851 Appeal

FSC# 07-1603

973 So.2d 427

 

08/30/07          Appeal filed.

10/04/07          Motion to Stay Execution filed.

11/01/07          FSC affirmed CC denial of post-conviction relief.

11/05/07          Motion for Rehearing filed.

11/07/07          Motion to Stay Execution denied.

11/07/07          Motion for Rehearing denied.

11/07/07          Mandate entered.

 

United States Supreme Court – Application for Stay of Execution and Petition for Writ of Certiorari

USSC# 07-10275

128 S.Ct. 2486

 

11/09/07          Application for Stay of Execution filed.

11/15/07          Stay of Execution granted pending Petition for Writ of Certiorari

04/03/08          Petition for Writ of Certiorari filed.

04/16/08          State’s Motion to Vacate Stay of Execution filed.

05/19/08          State’s Motion to Vacate Stay of Execution granted.

05/19/08          Petition denied.

 

Circuit Court – Successive 3.851 Motion

CC #91-7249-CF-A

 

11/13/07          Successive Motion and Motion to Stay Execution filed.

11/13/07          Motion denied.

 

United States District Court, Middle District – Motion for Stay of Execution

USDC #07-01798

521 F.Supp.2d 1338

 

11/13/07          Emergency Motion to Stay Execution filed.

11/13/07          Civil Rights Complaint filed.

11/14/07          Order Granting Stay of Execution entered.

 

United States Court of Appeals, 11^th Circuit – Motion to Vacate Stay of Execution

USCA# 07-15329-P

507 F.3d 1297

 

11/14/07          Appeal filed by Florida Department of Corrections.

11/15/07          Order Vacating Stay of Execution entered.

 

Florida Supreme Court – 3.851 Appeal

FSC# 07-2138

982 So.2d 1158

 

11/15/07          Appeal filed.

11/15/07          Motion for Stay of Execution filed.

11/16/07          Motion for Stay of Execution denied.

11/28/07          Initial brief filed.

01/24/08          Disposition affirmed.

02/08/08          Motion for Rehearing filed.

05/21/08          Motion for Rehearing denied.

05/21/08          Mandate issued.

 

Circuit Court – Successive 3.851 Motion

CC #91-7249-CF-A

 

06/24/08          Successive Motion and Motion to Stay Execution filed.

06/25/08          Motion denied.

 

Florida Supreme Court – 3.851 Appeal

FSC# 08-1199

995 So.2d 922

 

06/25/08          Appeal filed.

06/27/08          Appeal denied.

06/27/08          Mandate

 

Warrants:

 

07/18/07          Death Warrant signed by Governor Crist.

11/15/07          Execution stayed.

07/01/08          Execution scheduled.

 

Factors Contributing to the Delay in Imposition of Sentence:

 

The 3.850 Motion was pending for four years prior to being denied. 

 

 

Case Information:

 

Schwab filed a Direct Appeal in the Florida Supreme Court on 08/06/92.  He raised several issues on Direct Appeal.  Schwab argued that part of his statement should not have been admitted because he did not have counsel and that the heinous, atrocious, or cruel aggravator was unconstitutional.  He also stated that the State Attorney’s Office gave him legal advice, and in this action, created a conflict of interest.  Schwab argued that the trial court erred in not recusing the State Attorney’s Office. The Florida Supreme Court did not find errors that warranted reversing the conviction or sentence.  The Florida Supreme Court affirmed the conviction and sentence on 03/03/94.  Rehearing was denied on 05/16/94.  A mandate was issued on 06/15/94.

 

Schwab filed a Petition for Writ of Certiorari in the United States Supreme Court on 08/26/94.  The United States Supreme Court denied the petition on 10/17/94.

 

On 12/18/95, Schwab filed a 3.850 Motion in the Brevard County Circuit Court.  On 10/13/99, the Brevard County Circuit Court denied the Motion.

 

On 11/12/99, Schwab filed a 3.850 Appeal in the Florida Supreme Court.  Issued raised included that the trial court judge should have recused himself because of his bias against the defendant, that trial counsel was ineffective, that the death sentence was disproportionate, and that the aggravating factors were mishandled.  The Florida Supreme Court affirmed the Denial of the 3.850 Motion on 03/28/02.  A mandate was issued on 04/29/02.

 

Schwab filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 08/10/00.  The Florida Supreme Court denied the petition on 03/28/02.  A mandate was issued on 04/29/02.

 

On 04/29/03, Schwab filed a Petition for Writ of Habeas Corpus in the United States District Court, Middle District.  The petition was dismissed on 06/30/05.

 

Schwab filed a Habeas Corpus Appeal in the United States Court of Appeals on 08/01/05.  Schwab argued four issues in his appeal.  First, he argued that his counsel failed to cross-examine employees of the public defenders’ office regarding the chain of custody of a letter purporting to be a confession creating prejudice.  Schwab argued next that his counsel had conflict of interest and that his inculpatory statements were erroneous admitted to the court.  Finally, he claimed that the sentencing court erroneous treated evidence in mitigation as fact.  The court affirmed the denial of Schwab’s Petition for Writ of Habeas Corpus on 06/15/06.   

 

Schwab filed a Petition for Writ of Certiorari in the United States Supreme Court on 11/06/06 that was denied on 01/16/07.

 

On 07/18/07, Governor Crist signed a death warrant and the execution is set for 11/15/07. 

 

Schwab filed a 3.851 Motion to Vacate or Stay Execution in the Circuit Court on 08/15/07.  This motion was denied on 08/17/07.

 

Schwab filed his 3.851 Appeal in the Florida Supreme Court on 08/30/07.  Schwab also filed a Motion for a Stay of Execution in this case on 10/04/07. On 11/01/07, the Florida Supreme Court affirmed the Circuit Court’s decision in denying Schwab’s 3.851 motion for post-conviction relief.  On 11/05/07, Schwab filed a Motion for Rehearing, which was denied on 11/07/07.  The Florida Supreme Court also denied Schwab’s Motion for Stay of Execution and issued a Mandate upholding their 11/01/07 opinion on 11/07/07.

 

On 11/09/07, Schwab filed an Application for Stay of Execution in the United States Supreme Court.  On 11/15/07, the Supreme Court granted Schwab a Stay of Execution pending the filing and deliberation of a Petition for Writ of Certiorari, which was filed 04/03/08.  On 04/16/08, the State of Florida filed a Motion to Vacate the Stay of Execution which was granted on 05/19/08.  The Petition for Writ of Certiorari was denied on 05/19/08.

 

Schwab filed a successive 3.851 motion and Motion for Stay of Execution in the Circuit Court on 11/13/17.  This motion was denied on 11/13/07.

 

On 11/13/07, Schwab filed an Emergency Motion for Stay of Execution in the United States District court, Middle District.  On 11/14/07, Schwab also filed a Civil Rights complaint in the same court.  The USDC Middle District court entered an order granting a stay of execution on 11/14/07.

 

On 11/14/07, the Florida Department of Correction (FDOC) filed a Motion to Vacate Stay of Execution in the United States Court of Appeals, 11^th Circuit.  On 11/15/07, the order vacating Schwab’s stay of execution was entered.

 

On 11/15/07, Schwab filed a 3.851 appeal of the circuit court’s decision regarding his stay of execution and Motion for Stay of Execution in the Florida Supreme Court.  The Florida Supreme Court denied this motion on 11/16/07.  On 11/28/07, Schwab submitted his Initial Brief to the Florida Supreme Court.  After deliberation, the Court affirmed the trial court’s disposition on 01/24/08, denying Schwab postconviction relief on those grounds outlined in the brief.  Schwab filed a Motion for Rehearing in the Florida Supreme Court on 02/08/08, which was denied on 05/21/08.  On the same date, the Florida Supreme Court issued a mandate correspondent to the 01/24/08 opinion.

 

On 06/24/08, Schwab filed a third successive Motion to Vacate Sentence and Stay Execution in the State Circuit Court.  This motion was denied on 06/25/08.

 

Schwab filed a 3.851 appeal in the Florida Supreme Court on 06/25/08.  The Florida Supreme Court affirmed the disposition of the Circuit Court on 06/27/08 and issued a mandate on 06/27/08.

 

Institutional Adjustment:

 

DATE	DAYS	VIOLATION	LOCATION
09/09/97	180	REF. SUB. ABUSE TEST	UNION C. I.

 

Report Date:     01/07/02          S.Q.

Approved:        02/12/02          W.S.

Updated:          07/09/09          AEH