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By Linda Thomson

Floyd Eugene Maestas, who has been charged with capital murder in the death of an elderly Salt Lake woman, has asked the Utah Supreme Court to postpone his January trial because he wants the high court to issue an opinion regarding a district judge's ruling that Maestas is not mentally retarded.

Maestas, 51, could face the death penalty if convicted of the killing of Donna Lou Bott, 75, who was attacked while sleeping in her home Sept. 28, 2004.

The U.S. Supreme Court in 2002 issued a landmark ruling that prohibited the execution of convicted criminals who are deemed mentally retarded. Maestas' defense team recently mounted a vigorous push to convince 3rd District Judge Paul Maughan that their client is retarded and should therefore be exempt from the ultimate penalty.

But prosecutors argued strenuously that, while Maestas is not particularly intelligent, he does not meet the definition in Utah's law that would make such an exemption apply in his case. The judge, in a lengthy written decision, agreed and said the January capital murder trial should proceed.

Meanwhile, defense attorneys filed an interlocutory appeal on Dec. 20 with the Utah Supreme Court seeking to overturn Maughan's ruling. They believe that Maughan erred in his decision and they also say that Utah's law is "ambiguous, internally inconsistent and constitutionally deficient under the 8th Amendment" of the U.S. Constitution. The amendment forbids cruel and unusual punishment. They also argue that Maestas' rights are being compromised under the 14th Amendment, which guarantees individuals due process in legal proceedings.