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

WHITTON, Gary Richard (W/M)

DC #   936283

DOB: 02/04/59

First Judicial Circuit, Walton County, Case #90-0429

Sentencing Judge: The Honorable Laura Melvin

Attorneys, Trial: William B. Bishop & James W. Tongue –Assistant Public Defenders

Attorney, Direct Appeal: Paula S. Saunders – AssistantPublic Defender

Attorney, Collateral Appeals: Mark Olive, Esq. – Registry

Date of Offense: 10/10/90

Date of Sentence: 09/10/92

Circumstances of Offense:

Gary Whitton was convicted and sentenced to death for the10/10/90 murder of James Mauldin.

Gary Whitton met James Mauldin in March of 1989 at a halfwayhouse in Pensacola where the two men were receiving alcohol treatment. After leaving the halfway house, Whitton and Mauldin would see each otheroccasionally at Alcoholics Anonymous meetings.

On 10/07/90, Mauldin spent the night at Whitton’s home aftershowing up intoxicated.  On 10/08/90, the two men drove to Destin soMauldin could withdraw money from his bank.  The bank was closed, so themen returned the following day.  Mauldin closed his account after he wastold by the bank teller that he could not withdraw money without his passbook, whichhe did not have.  Whitton assisted Mauldin with filling out the formsrequired for closing his account because Mauldin was too intoxicated to do sohimself.  Mauldin left the bank with $1,135.88 in cash.  Both menthen checked into a hotel in Destin.  Whitton filled out the hotel forms,giving a false license plate number.  The hotel clerk noticed thediscrepancy in the license plate numbers and recorded the correct informationon the hotel forms.  After checking in, Whitton left the hotel at approximately12:00 p.m., and he claimed he did not return to the hotel again.

During the investigation, Whitton told officers that he didnot return to the hotel the night of the murder. Whitton later told theofficers that he did return for a few minutes, but that Mauldin was alreadydead when he arrived.  The hotel clerk said that he saw Whitton’s cararrive at approximately 10:30 p.m. and leave again at approximately 12:30a.m.  The same hotel clerk found Mauldin’s body the next day.

Mauldin’s body was found with numerous injuries, including afractured skull and stab wounds to the shoulder, cheek, neck, scalp, back andheart. Tests indicated that he had a 0.34 blood alcohol level at the time ofhis death and, according to police records, Mauldin had no money on him besidessome spare change.

Police brought Whitton to the station for questioning on10/11/90, after being alerted by the hotel clerk about the false informationgiven by Whitton on the hotel forms.  A search of Whitton’s home revealeda pair of boots that were stained with blood that matched Mauldin’sblood-type.  The police then searched Whitton’s car where they foundbloodstains that also matched Mauldin’s blood type.

While in jail awaiting trial, Whitton confessed to an inmate(and was overheard by a second inmate) that he returned to the hotel to stealMauldin’s money and killed him because he was afraid that Mauldin would havetestified against him in a parole violation hearing as a result of therobbery.  Both inmates gave statements attesting to this information.

Trial Summary:

12/03/90          The defendant was indicted on thefollowing charges:

Count I:           First-DegreeMurder (James Mauldin)

Count II:         Robbery

08/04/92          The jury found the defendant guilty ascharged.

08/04/92          Upon advisory sentencing, the jury, by a12 to 0 majority, voted for the

death penalty.

09/10/92          The defendant was sentenced as follows:

Count I:           First-DegreeMurder - Death

Count II:         Robbery- 9 Years

Appeal Summary:

Florida Supreme Court - Direct Appeal

FSC #80,536

649 So. 2d 861 (Fla. 1994)

09/28/92          Appeal filed.

12/01/94          FSC affirmed Whitton’s conviction andsentence of death.

02/14/95          Rehearing denied.

03/15/95          Mandate issued.

U.S. Supreme Court - Petition for Writ of Certiorari

USSC #94-9356

516 U.S. 832 (U.S. 1995)

05/15/95          Petition filed.

10/02/95          Petition denied.

State Circuit Court - 3.850 Motion

CC #90-429-CF

(Pending)

03/24/97          Motion filed.

08/30/02          Motion amended.

11/02/04          Motion amended.

Factors Contributing to the Delay in Imposition ofSentence:

Whitton’s 3.850 Motion has been pending in the trial courtsince 03/24/97.  Thirteen years have passed without a disposition on themotion.  According to the Florida Supreme Court Post Conviction QuarterlyReport, Quarter 4-2009, further delays, including a change of defense counsel,change of judges, workload, and family sickness have caused the target date forthe written disposition order to be changed to “not later than March 31,2010.”  The target date for the written disposition order has now been changedto 05/19/10, “absent emergency or extraordinary circumstances,” according tothe Florida Supreme Court Post Conviction Quarterly Report, Quarter 1-2010. The target date for the written disposition order has now been changed to theThird Quarter 2010 (approximately October), according to the Florida SupremeCourt Post Conviction Quarterly Report, Quarter 2-2010.  The target date forthe written disposition order has now been changed to “on or before12/17/10”--according the Florida Supreme Court Post Conviction QuarterlyReport, Quarter 3-2010.  The target date for the written disposition order hasnow been moved to “on or before 3/31/11”—according the Florida Supreme CourtPost Conviction Quarterly Report, Quarter 4-2010.  According the FloridaSupreme Court Quarterly Report, Quarter 1-2011, the target date for the writtendisposition order has been moved to 4/8/11.  The case has been reassigned to theEscambia Division.

Case Information:

On 09/28/92, Whitton filed a Direct Appeal in the FloridaSupreme Court.  In that appeal, Whitton argued that the trial court erredin denying his motion for mistrial after the prosecutor commented on hispost-arrest silence during closing argument.  Whitton also argued theconsideration and application of the heinous, atrocious or cruel aggravatingfactor and the avoiding arrest aggravating factor.  On 12/01/92, theFlorida Supreme Court affirmed Walton’s conviction and sentence of death.

On 05/15/95, Whitton filed a Petition for Writ of Certiorariin the United States Supreme Court that was subsequently denied on 10/02/95.

On 03/24/97, the Whitton filed a 3.850 Motion in the StateCircuit Court that is currently pending.

Institutional Adjustment: 

DATE             DAYS            VIOLATION                                  LOCATION

--------          ----                ----------------------------               --------------

01/04/93         0                     DISOBEYINGORDER                   UNION C. I.  

01/09/93         0                     DISOBEYINGORDER                   UNION C. I.  

03/29/93         0                     DISRESP.TOOFFICIALS              UNION C. I.  

07/11/93         0                     DISOBEYINGORDER                   UNION C. I.  

04/21/94         0                     DISORDERLYCONDUCT UNION C. I.  

08/26/94         0                     DISRESP.TOOFFICIALS              UNION C. I.  

09/03/94         0                     SPOKENTHREATS            UNION C. I.  

09/03/94         0                     DISRESP.TOOFFICIALS              UNION C. I.  

04/05/95         0                     DISOBEYINGORDER                   UNION C. I.  

08/02/95         0                     UNAUTH USEOF DRUGS UNION C. I.  

05/01/01         60                   DISOBEYINGORDER                   UNION C. I.  

____________________________________________________________________

Reported         10/01/02          EW

Approved        10/08/02          WS

Updated          01/14/11          MJH