Florida was set to put a convicted child rapist and killer to death Tuesday in what would be the state’s first execution since a botched lethal injection in late 2006 prompted a moratorium.

Attorneys for Mark Dean Schwab appealed to the U.S. Supreme Court for a stay, arguing that new execution procedures set by the state during the moratorium can still cause severe pain and suffering. The appeal was filed Monday night, less than 24 hours before the scheduled 6 p.m. execution for the 1991 slaying of Junny Rio-Martinez.

The Supreme Court last spring upheld Kentucky’s lethal injection procedure, but Schwab’s attorneys are citing Florida’s botched execution of Angel Diaz in December 2006. The needles missed Diaz’s veins and it took 34 minutes for him to die, more than twice the normal time.

“Florida is a state with a long history of failed and disconcerting executions,” Schwab’s appeal said.

The Florida Attorney General’s Office asked the high court Tuesday to reject Schwab’s appeal.

“Simply put, the claims contained in Schwab’s most recent motion have already been decided adversely to him by the Circuit Court, the Florida Supreme Court, and this Court in his two previous challenges to lethal injection.”

The high court gave Schwab a stay in November as it considered the constitutionality of Kentucky’s procedure. When it ruled Kentucky’s protocol was acceptable, it opened the door for Florida and other states with similar laws to resume executions.

Schwab’s lengthy appeal says as a result of the Kentucky decision, “there remains much confusion as to the proper standard for analyzing the method of execution cases.”

Schwab’s attorneys have also pointed out that during recent rehearsals, the execution team had a 30 percent failure rate.

Gov. Charlie Crist told The Associated Press on Monday that “I’m hopeful that it goes well. That is, what I mean by that, is that it goes without any difficulties in terms of interruption of the process itself. And I believe it will.”

In the Diaz execution, the executioner pushed the needle through his veins into his muscles, causing severe chemical burns on his arms. Several times during the process, Diaz could be seen grimacing and asked at one time, “What’s going on?”

The Diaz case resulted in an investigation into the process by a committee appointed by then-Gov. Jeb Bush. Changes suggested by the panel were incorporated into new execution procedures adopted by the Department of Corrections.

One change calls for the warden to assess whether the inmate is unconscious after sodium pentothal is injected into his body. Then the executioner will inject pancuronium bromide, used to paralyze his muscles, and potassium chloride, used to stop his heart.

Schwab would be the 10th person executed in the United States since the Supreme Court’s Kentucky ruling and the 21st Florida inmate to die by lethal injection since the state changed its method of execution in 2000. He will be the 65th inmate to be executed since Florida resumed capital punishment in 1979, when the electric chair was in use.

Schwab received final visits Monday and Tuesday from his mother, Mary Killam of New Philadelphia, Ohio, and aunt, Shirley Muhs of Newcomerstown, Ohio.

Schwab’s religious adviser, Perri Davis, a Baptist minister on staff with the prison system, will stay outside his cell during his final hours.

Schwab raped and killed Junny a month after Schwab was released early from a prison sentence he got for raping a 13-year-old boy. The case prompted Florida’s Junny Rios-Martinez Act of 1992, which prohibits sex offenders from early release from prison or getting credit for good behavior.

Schwab stalked the boy after seeing his photo in a newspaper for winning a kite contest.

Although Schwab claimed another man had made him kidnap and rape the boy, he was able to lead police to a footlocker in rural Brevard County where Junny’s nude body was discovered. The trial judge rejected the arguments about another man and found that Schwab was responsible for the crime.

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On the Net:

Junny Rios-Martinez’s family MySpace page: http://profile.myspace.com/index.cfm?fuseactionuser.viewprofile&friendid21

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