/

FLORIDA PRISON LEGAL

ers ectives
VOLUME 8, ISSUE 1

PARENTSIN
PRISON
-PARTONE-

by Linda Hanson

I

f.YOU are a parent in prison you
probably have many questions
and concerns about your
children and about your legal
rights as a parent. Your children
may be with a spouse. relative,
group, home or foster care. I f your
children are under the supervision
of the Department of Children and
Family Services. you may h~ve
serious concerns about your legal
rights and the Juvenile Court
proceedings
involving
your
children. If your children are with
a divorced spouse or if a legal
guardianship has been established.
you may have questions about how
to reunifY with your children ,once
you are released from prison or
how to protect your parental rights
from being terminated by a hostile
divorced spouse.
I

In this two-part treatise, we
hope that many of the questions and
concerns that incarcerated parents
have about custody of their children,
both during and after the time they
are in prison will be addressed. The
exposition that follows is not
intended to replace your 'lawyer. If
you have a lawyer, use him or her..
Ask questions, give information, and
tell him what you want for your
family.
FRACTURED FAMILY
Incarceration draimitically alters
To be
domestic relationships.
imprisoned is to be cutoff
physically from one's spouse and
children. For those with strong
marital ties, the odds of surviving
divorce are better than those with
weak tics. But even for the most
solid relationships, the stress and
strain can wreck havoc on a
marriage. It will take a couple with
a lot of courage, strength and love to
survive the test, but it can and has
been done.
I.

FAMILIES ADVOCATES PRISONERS

~

~
L'NmO FOR PRISON REFORM

JANIFEB 2002

ISSN# 1091-8094

For those individuals who have
a supportive and committed spouse,
your fears and concerns about the
family unity ar~ not as severe as those
who do not have a strong relationship.
To
keep
your family
intact,
communication is a must. This can be
accomplished through regular visits,
phone calls, and letters.· While visits.
and phone calls can be a bUrden to your
spouse (since she or he may have
depended on your income), greeting
cards and letters provide the most
economical way to communicate with
your children. It will also foster the
development of reading and writing
skills for your children. If your child is
too young to understand letters, draw
pictures to sen~ home. Make sure your
spouse send.. you report cards, school
assignments or projects, and photos plenty of photos. Likewise. send your
children photographs of you. Again,
communication is the key to
maintaining family unity, and if
successful, the fracture will heal

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- - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

FLORIDA PRISON

LEGAL.L..-~

Perspectives
P.O. Box 660-387
Chuluota, Florida 32766
Publishing DlvlslDlt of:
FLORIDA PRISONERS' LEGAL AID
ORG.,INe
A50I(c){3) Non Profit Organization
Fax (407) 568-0200
email: tj!Ip@aoJ.com

FPLAO DIRECTORS
TetCSll A. Bums-Posey
BohO. Posey
I>an)1 MCOlamery
David W. Bauer. Esq.
Loren O. Rhoton. Esq.

OscarH_n
Lin~ HaDscn

PubliJber
Editor
Rutllrch

FPLPSTAFF
Teresa A Bums·Posey
BobO. Posey
Shari Johnson

FPLP ADVISORY BOARD
William Van Poyck
Philip BlI&Iey-Teny Vaughn
Michaell.ambrix·A1an J. CottOn
James Quigley-James Taylor
cart WelJs.<ilenn Smith
Linda OoUllcb-Susanne Manning
Enrique Diaz.Qene Salser
Robert Blllrish·Michael Palmer

Milrk SherwooCf

Perspectives

upon your release. For those with
life sentences, keep the faith alive
and hope for a change in law "Or
some executive decision that will
open a door of opportunity for you.
Never give up!
II.

DIVORCE

For those marriages that fail, the
emotional trauma can be severe not
only for the spouses, but the
children, too. Once the divorce is
final. usually the un incarcerated
parent remarries and within time
will seek to have her new husband
formally adopt her children. which
will terminate the' incarcerated
parent's parental rights. However,
there are some barriers that will
prevent such an adoption. Section
63.062. Florida Statutes requires
biological and lawful parents to
consent to an adoption before such
adoption 'can take place.
The
exception to this rule is where a
parent has deserted a child without
affording means of identification. or
who has abandoned a child or who
has had their parental rights
terminated by order of a court of
competent jurisdiction.
Prior to
Octo~er I, 1997. incarceration alone
could not serve as a basis to
terminate parental rights. However,
after October I. 1997. that was
changed by the Florida Legislature.
During the first regular
session of the Fifteenth Legislature.
Florida·s. lawmakers passed a bill
that authorized the ter~nination of
parental rights of the incarcerated
parent who has be~n determined by
the court to be a violent career
criminal. a habitual violent felony
offender. or a sexual predator. The
bill also authorized termination of
parental rights if the parent has been
convicted of first or second degree
murder or a sexual battery that
constitutes a capital. life, or first
. degree felony. The most troubling
portion of the bill was that
termination could. also be ordered
when the period of time for which
the parent is expected to be

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incarcerated wi:! constitute a substantial
portion of the period of time before the
child will attain the age of 18 years.
Because the termination of parental
rights affects fundamental liberty
interests protected by both State and
Federal Constitutions. incarcerated
parents who face tennination of
parental
rights·. are entitled
to
appointment of counsel. See O.A.H. v.
R.L.A., 712 So.2d 4 (Fla. 2d DCA
1998).
Should adoption not become an
issue with your ex-spouse, you may
experience hurdles upon your release in
order to be able to visit with your
children. Upon your release you may
need to modify any visitation schedule
you may have been given in the original '
divorce decree This means you may be
required to file a Petition to Modify
Visitation under Family Rules of
Procedure 12.905(a).
You will be
required to demonstrate that you can
safely parent. Keep records of all your
efforts to visit your child and follow
and complete rehabilitation programs.
Write down lhe time and date of
everything you do for you and your
child. This means keeping track of
every phone call and visit with your
child, your child's caregiver, a social·
worker or lawyer.
By keeping track of these calls and
visits, you can prove that you care
about what 'happens to your child. A
judge is much more likely to believe
that you called your child every Sunday
if you show him your written record
than if you simply tell the judge that
you made the calls. Here are some
steps you can follow to assure that you
have documented all your efforts to stay
in touch with your child.
I. Get a notebook and use it only
for your child's case. Write
down the date and time of:
• Each call you make to
or about your child;
• Each visit you have
with your child;
• Each call you make to
your child's caregiver,
and what the call was
about

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2. Write letters to your child
and save copies of those
letters.
3. Attend any available
programs. classes or
meetings that your
institution offers and
record the dates and times
of your attendance.
4. Keep copies ofcertificates
showing that you attended
those programs.
S. Ask program teachers and
counselors of any
programs you complete to
write a letter about how
you did.
Maintaining
the
parent-child
relationship can be difficult while
you are in prison, but it is not
impossible. With a lot of work you
can survive the ills associated with
incarceration and upon your
release. resume your active role as
a 'caring, loving parent. It will
require a lot of patience and
detennination but the rewards for
you and your children are
. imme;lSurable.
.
[Note:. Part Two of Parents In
Prison will appear in the next issue

ofFPLP.]_

Commentary:
TROUBLES
WITH CHARLIE
by Lisa Stanton
Remember the white-haired state
senator a few years ago who ran on
a platfonn of get-tough-on-crime
and prisoners? It might help jog
your memory to remember the guy
in the T.V. politi'ial ads with the
heavy steel prison cell door
slamming shut behind him as he
told viewers that he would "get
tough on crime." Slam! Or you
might remember him for his selfadopted nickname that called to
. mind the days of slavery for many
and for a brief, but doomed, return

Perspectives

.to those days with Florida's
reinstitution of prison chaingangs.
Yep. that's him - "Chaingang
Charlie" Crist.
Prisoners who were in the
system in 1995/96 should remember
Charlie. Besides being the most
vocal. almost rabid, demagogue who
harangued then Governor Lawton
Chiles, FDOC Secretary Harry
Singletary, and more sensible
legislators into restarting chaingangs
in Florida prisons, Charlie was the
one behind changing prison lunches
from hot meals to bologna and
, peanut butter sandwiches. He didn't
stop there, though. Charlie really
got on the "get tough" bandwagon of
those years.
He had no other
meaningful issue that he could use to
sell himself to voters with. The
simplistic "get tough on prisoners"
platfonn was ideal for Charlie, it
didn't take much brains to stand'on,
it appealed to the public's mass
media-instillecJ crime fear, and best
of
all,
its
targets
were
disenfranchised and couldn't vote
against Charlie. Man, Charlie was
tough.
During
the
mid-1990s
Charlie raged against Florida's
"country club prisons." As prisoners
were being beaten senseless in
prisons like Union Correctional
Institution, Florida State Prison, and
North Florida Reception Center by
out-of-control prison guards, Charlie
tried to have all of the televisions
taken. Prison officials fought that,
the tubes were their best babysitters
and control tools. Charlie settled for
a law prohibiting new TVs from
being bought.
Next Charlie went after
'weightlifting
and
recreation
equipment. Charlie painted a picture
of prisoners doing nothing but
watching TV, eating gounnet food,
and
becoming
bulked-up
Terminators just waiting to be
released to wreak havoc on society.
Prison officials agreed to restrictions
on weightlifting access and no new
recreation equipment was purchased.

Ups and Downs
, Encouraged by Charlie's antics,
many anti-prisoner good 01' boys within
the DOC began pushing for other "get
tough" changes in the system. The
elimination of package permits and
severe restrictions on allowable
personal propr.rty followed, as did the
lifting of the allowable profit caps on
canteen prices, among other onerous
changes.
Charlie thought he was a hit
and thought he could ride his "get
tough" horse up to Washington by
running for a position in Congress. He
lost that'election, but was given a state
job as a sanitation engineer, or some
such title, for the next couple of years.
He bided his time. When the next
elections rolled around there was
Charlie again running - out ofall things
- for Florida's top post in .education.
He ended up being appointed by Jeb
It just went to prove P.T.
Bush.
Barnum's saying.
It didn't take long, however, for
Charlie to be found out. Recently Gov.
Jeb Bush, in an unprecedented move,
had to appoint' another person to be
education commissioner - along with
Charlie. Seems Charlie just wasn't
good enough.
Never Say Die
Undaunted, Charlie has now set
his sights on being Florida's next
attorney general. To head off expected
criticism aboUl his qualifications for
that post, in September Charlie revealed
that he flunked the Florida Bar
examination for an attorney's license
twice. "Yes, I failed the bar exam
twice; the th ird time I passed it,"
"It's not
Charlie told reporters.
something I'm particularly proud of,
but I think the lesson is to never give
. up."
Charlie doesn't lack for money
to campaign for the position; he holds a
commanding lead in fundraising so far.
Charlie faces Sen. LQcke Burt in the
Republican primary this year. Sen.
Buddy Dyer of Orlando is the only
Democrat in the race so far.
When asked whether he thinks
his experience with the bar exam should

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have any bearing on his ability to
handle the attorney general's job,
Charlie said, "I personally don't. I
did pass the Bar. If anything, the
fact that I had to take it three times
gives me greater compassion."
Charlie's competitors in
the race said they had heard' about
his problem passing the Bar exam,
but that they had no immediate
plans to use it against him in the
campaign. Both Burt and Dyer
passed the Florida Bar on their first
try.
Bob Poe, chairman of the
Florida Democratic Party, said he
didn't know about Charlie failing·
the Bar exams and that his party
had no 'plans at this time to
embarrass Charlie by using the
information. But, Poe commented,
"He obviou,sly isn't qualified to be
education commissioner; otherwise
the governor wouldn't have
appointed another one. And now
he probably isn't qualified to be
the state's attorney general. Are
we going to have the governor
appointing a· second attorney
general to work with Charlie?"
Prisoners can't vote in
Florida, but they can talk to their
family members and friends who
do vote about Charlie. I certain I}'
intend to.•

INFORMED
REJECTION OF
A PLEA OFFER
by Corinda Luchetta, J.D.
Before you made the decision to
go to trial and make the
government prove its case against
you, did your attorney advise you
of any and all plea offers made by
the prosecution?
Did your
attorney explain to you what
would happen, what your sentence
might be if you lost the trial? Did
your attorney tell you whether or

Perspectlves - - - - - - - - - . , . - - - - - -

not you had a chance at trial, and,
finally, did your attorney tell you
what he (or she) thought you should
do? Did your attorney make a
recommendation to you?
If your lawyer did not do all
of the above, you may have received
ineffective assistance of counsel. In
United States v. Purdy, 208 F.3d 41
(2d Cir. 2000), the appellate court
provides an informative and helpful
discussion of the basic requirements
for a criminal defense lawyer's
pretrial representation of ·an
individual who has been accused of
a criminal offense. According to the
court, "defense counsel must give
the client the benefit of counsel's
professional advice" on the crucial
decision of whether or not to plead
guilty.
This
includes
communicating the terms of any
plea offer, analyzing the pros and
cons of the prosecution's case, and
comparing the sentences to which
the client might be exposed if he or
she decides to either plead guilty or
go to trial.
Although your. attorney
cannot make the ultimate decision
for you, that is, he or she cannot
decide whether or not to go to trial,
he or she is obligated to advise you
of the chances of winning or losing,
and the likely sentence if the case is
lost following ajury trial. Ifcounsel
fails to do so, his or her failure may
be the basis of a post-conviction
claim of ineffective assistance of
counsel.
In United States v. Boria, 90 F.3d 36
(2d Cir. 1996), the defendant's
attorney did not give his client any
advice on the "wisdom of accepting
or rejecting the state's initial plea
offer." Counsel's failure Was so
egregious the court found the lawyer
"failed to meet the minimal
requirements
of constitutional
competency" and granted the
defendant's petition for writ of
habeas
corpus
because
the
deprivation of Boria's right to
counsel resulted in substantial
prejudice to him. Indeed, according

to the court's OpiniOn, under the
original offer, Boria would have been
sentenced to a prison term of between
one and three years.· However,
following Boria' s rejection of the offer,
he went to tl'ial, was convicted and
sentenced to 20 years to life.
So if you're currently serving
an extensive prison sentence because
your attorney didn't tell you about the
prosecution's offer, or didn't tell you to
take the offer because it was likely you
would lose at trial and end up serving
twice the time, you may have a postconviction claim of ineffective
assistance of counsel. Of course, the
rules regarding motions for postconviction relief on these types of
claims contain strict time limits and
other legal requirements which must be
met in order to bring the claim, but it
may be something worth looking into,
or possibly consulting an attorney who
specializes in the area of postconviction relief.
Corinda Lucheua, a former
federal
prosecutor.
now
practices in Tampa. Florida as
a partner in the firm of
Giordano & Luchel/a.•

INS MUST
RELEASE
CRIMINAL
IMMIGRANTS
\

Let the exodus begin. More than three
.weeks after the United States Supreme
Count issued its landmark decision that
the Immigration and Naturalization
Service (INS) cannot detain convicted
immigrants indefinitely (once they have
completed their prison sentences),
release is on the horizon, even iftheir
native counli'ies refuse to accept them.
On Thursday, July 19, 2001,
Attorney General John Ashcroft
reluctantly ordered the INS to begin
releasing 3,400 foreign nationals who

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FLORIDA PRISON LEGAL

have completed prison sentences in
the United States but whose home
counties won't take them back.
The Department of Justice and the
INS are required to follow the
Supreme Court's ruling and to
apply the release procedure to
those who are currently detained.
The INS policy, prior to the court
ruling. allowed detention of
criminal immigrants as long as
necessary to protect public safety.
Their status in detention limbo is a
result of refonns passed in 1996,
when Congress limited the rights
of noncitizens who commit crimes
and made it easier to deport them.
Unhappy
about
the
prospect of countries like Cuba.
Cambodia, Vietnam. and Laos who
refuse to take their nationals.
Ashcroft may ask Secretary of
State Colin Powell to "discontinue
granting visas" to citizens of those
countries who do not cooperate.
Although the release of
these criminal immigr~nts might
make some people uneasy, it is
fundamentally unfair to lock
people up indefinitely.
Most
expected to serve the amount of
prison time that was imposed upon
them, but these people had no idea
when they getting releas~ once
INS detained them and this was a
psychological nightmare for them
all.
[Source: The Washington Post.
6/20/01] _

DOC OFFICIAL
ARRESTED FOR
MOLESTING
TWOYOUNG
GIRLS
Ronald L. Nichols. a correctional
lieutenant
for
the
Florida

Perspectives

Department of Corrections was
arrested October I. 200 I, accused of
molesting two 8-year-old girls over
a two-year period.
Nichols. who works at
Hillsborough
Correctional
Institution was officially charged
with committing a lewd an'd
lascivious assault on the girls, each
first degree felonies.
Nichols turned himself in to
the Orient Road Jail shortly after
6:00 p.m. on Monday. October 1,
said . Hillsborough
Sheritrs
Lieutenant Rod Reder. The warrants
were issued the last week of
September,2001. Affidavits on the
warrants
accuse
Nichols
of
molesting one girl in 1999 and the
other girl in 2000. ,Bail was set at
$50,000. As of late Monday night,
Nichols remained in jail.
[Source:
The Tampa Tribune.
10/2/200 I] _

NEW
PROCEDURE
DIRECTIVES ON
LAW LIBRARIES
All Florida prisoners are aware that
after the class action access-to-court
Hooks case was ended in Dec. 2000
of
the
Florida
Department
Corrections almost immediately
began the process to change the
rules that had been approved by the
court. Those amendments, codified
at Chapter 33-501.30 I, Florida
Administrative Code (F.A.C.) were
formally adopted in Nov. 200 I.
Largely unknown to the prison
population. however, is that during
that same month the DOC also
adopted 3 new Procedure Directives
(P.D.s) concerning law libraries.
Those new directives, which
eliminate all local Institutional
Operating Procedures on law library
operations, are numbered and
entitled: P.O. 501.301. Law Library

Programs; P.D 501.303, Law Library
Interlibrary Loan Services; and, P.O.
501.304, . Acquisition and Disposal of
Law Library Materials.
Notably,
where
the
amendments to Chapter 33-501.301,
F.A.C., deleted where law libraries
would be located and the specific list of
which books are required to be
available in the law libraries, that
infonnation is now found in the new
P.D.s - with some significant changes
from what used to be in Chapter 33501.301.
It is also noted that the DOC skipped
releasing a P.O. number 501.302 at this
time, which may indicate that a further
P.O. is planned on law libraries to fill
that vacancy sometime in the future.
It is suggested that all prisoners
review the new law library rules
and directives.
[Note: Shortly after the Hooks case
ended the department's Law Library
Services attomey~ Joe Belitsky resigned
from the DOC and went to work for the
attorney general's office. From cases
FPLP staff has seen recently it appears'
Belitsky is being assigned to represent
the DOC in any cases filed by prisoners
concerning the law libraries or denial of
access to court. This is an advantage
that should be exploited - ed] _

CHALLENGE TO
FDOC POLICIES
SURVIVES MOTION
TO DISMIS.S
Florida prisoner Mark Osterback
initiated a federal complaint seeking
declaratory and injunctive relief on
three independent claims related to
policies and procedures of the Florida
Department of Corrections.
Those

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FLORIDA PRISON LEGAL

claims are: (I) the FDDC's policy
of
placing
prisoners
in
confinement
prior
to
a
determination of guilt, which
prevents the prisoner from
collecting evidence and that the
availability of staff assistance is
ineffective because staff will not
help coHect evidence for his
defense: (2) the FODC rules do not
provide a period of time for nonlegal mail to be held when r~jected
for various reasons. which vitiates
any meaningful opportunity to
challenge the decision to return the
non-legal mail: and (3) the
FODC's policy of disposing of
personal
property
deemed
contraband without affording the
prisoner an opportunity for
meaningful challenge or review.
The FODC asserted three
defenses: ( I) a blanket assertion
that the claims are barred by the
statute of limitations without
identifying which claims were
barred: (2) that the prisoner lacks
standing to challenge disciplinary
proceedings. mail review, or
contraband
policies of the
department: . and
(3)
nonexhaustion
of administrative
remedies.
Magistrate Judge William
C. Sherrill. Jr.. of the United States
District Court for the Northern
District of Florida issued a Report
and Recommendation fo.llowing
his analysis of the case. District
Judge William Safford adopted the
Report which found that the statute
of limitations was applicable to the
claims that occurred prior to
February 27. 1997.
Because
Dsterback filed his complaint on
February 27. 2001. a four year
period of limitation 'precluded
review of those claims occurring
prior to February 27. 19.97.
However, those claims that
occurred after February 27. 1997
would survive.
The Report went into a
detailed analysis on wbether
Dsterback had standing to

Perspectlves

challenge
the
disciplinary
proceedings. mail review and
contraband policies.
To find
Dsterback had standing to seek
injunctive relief the Court would
need to determine that he faced
similar injury in the future. The
Court recognized that the complaint
alleged that correctional officers
were following department policies
and that the prisoner could
reasonably expect to be affected by
these rules and policies in the future
at any institution where he may be
housed as the rules are apparently
applied on a state-wide basis. More
pointedly, the Court recognized that
Dsterback. who is serving a life
sentence. faces a strong likelihood of
being given a disciplinary report in
the future because as the Court
noted. an inmate does not have to
break the law of the prison to come
before the disciplinary hearing
board: rather, a correctional officer
merely has to allege that the prisoner
did so. The Court also recognized
that Dsterback has shown that the
policies
regarding mail
and
contraband have been consistently
applied to him at many different
institutions during his tour thus he
has sufficiently demonstrated that
the application of FODe's policies
are not speculative. Therefore, the
Court determined that Osterback has
standing to seek injunctive relief in
this case.
As to FODe's claim of nonexhaustion, the Court correctly
rejected the FDDC's claim since
Osterback had filed administrative
grievances that were addressed on
their merits notwithstanding the
FOOe's contention that he failed to
demonstrate that he properly
. exhausted "specific" incidents as
opposed to multiple incidents.
The case has been remanded for
further proceedings. See Oslerh£lck
v. Moore. IS Fla. L. Weekly (Fed)
037 (M.O. Fla. 11/512001).•

FDOCIGNORED
WARNINGS:
PRISONER
MURDERED AS A
RESULT
Gainesville - While waiting to be
sentenced for killing one woman and
trying to kill another, Ricardo Gill, 32,
warned the judge to either give him the
death penalty or he would do something
else to get it. Instead, citing to Gill's
life-long history of mental illness, on
July 20, 2001, Alachua County Circuit
Court Judge Stan Morris sentenced Gill
to life without parole. That afternoon
. Gill was turned over to the Florida
Department of Corrections (FDDC) and
four days later, despite several warnings
to prison officials. Gill's cellmate was
found strangled to death.
Robert RU!lh. Gill's attorney,
commenting after Orlando Rosello was
found strangled in Gill's cell at the
FDOC's North Florida Reception
Center (NFRC) with a tom-up bed
sheet, said. "There's no reason this
should have happened." He'said his
client should n~ver have had a cellmate
and that prison officials should have
known that.
For ah~lost his entire life Gill
had problems. his lawyer said.
Dysfunctional. he was kicked out of 2
kindergarten classes and 2 'schools
during the Ist grade. By the time he was
10-years-old. Gill was confined in a
mental institution in Miami. "There
was a prophetic note from the
psychiatrist tholt says this child needs
intensive rehabilitative therapy," Rush
said, and quoting from the memo. "If,he
doesn't get it. it'sgoing to be much
more expensive in the future,"
By 14 Gill was behind bars.
After serving 2 years. he was out at 16
but then locker! up again at 17 - and
staying in prison for the next 13 years.
During those years GiJrs record wasn't
good. While in prison Gill bit a guard,

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FLORIDA PRISON LEGAL

threw feces at another. slashed his
wrists with a broken light bulb and
set his bed on fire.
Gill only stayed. out of
prison II months after being
released. During that time he
worked in Gainesville as a car
salesman. But. police say. he also
killed
Beverly
Moore.
a
Gainesville travel agent that he had
met in a bar. and attempted to kill
another woman that he had dated.
Moore was stabbed' to death and
found in her apartment. The other
woman was stabbed in the back
with a butcher's knife.
Gill pleaded guilty in both
cases, but claimed he didn't
commit the crimes. He told the
judge. however. he didn't want to
stay in prison the rest of his life for
something he didn't do and so
asked for the death penalty.
In August 2000. \vhile waiting to
be sentenced. Gill told a
Gainesville reporter. "I'm going to
make the judge sentence me to
death. If he doesn't do that. he's
going to make me somebody I
don't want to be. He's going to
cause me to do something that's
going to make the next judge give
me the death sentence."
After being sentenced to
life. Gill was taken from Alachua
County jail to the North Florida
Reception Center. where prisoners
are processed when entering
prison.
Three times. said
spokesman Sgt. Jim Troiano. the
Alachua
County
Sheriffs
Department
warned
prison
officials about Gill's behavior.
"Once we got there. we talked to a
sergeant and a .lieutenant, and
apprised them of... his past
his
suicidal
tendencies,
uncontrollable disruptive behavior.
how very manipulative he was, as
well as letting them know that he
had made a comment... that if he
wasn't sentenced to death, he
would do something to be
sentenced to death." said Troiano.
Because of his behavior, Gill had

Perspectives - - - - - - - - - - - - - - -

been kept in solitary confinement for
2 years at the Alachua County jail.
At NFRC prison officials
placed Gill in a cello with another
prisoner, Gill's first cellmate was
moved when Gill threatened him
with violence. But then Orlando
Rosello. 49. was placed in Gill's
cell. Rosello, who was serving a 20month sentence, was at NFRC for
medical treatment.
Only 2 days after arriving at
NFRC. on July 22. Gill wrote to the
Gainesville SUllstating: "I~ Ricardo
,Gill, took the life of Orlando Rosello
by strangulation:' That letter was
mailed the next day. On Tuesday,
the 24 111• at 6:45 a.m., prison guards
On
found
Rosello .dead,
Wednesday, the Sun received Gill's
letter.
FDOC Secretary Michael
Moore declined to comment on the
murder, -saying that Rosello's death.
is under investigation by the Florida
Department of Law Enforcement
(FDLE). "I can't comment on it. I
don't have all of the facts," Moore
told a reporter before the DOC's
lawyer interrupted him, telling him
not to say anything. The FDLE, said
spokesman AI Dennis, is not only
looking into Rosello's murder. but is
also looking into Gill's claim .that
prison guards beat him the night he
entered NFRC in Lake Butler.
Rosello was buried in the
prison
cemetery
at
Union
Correctional Institution in Raiford
on July 27. his tombstone - a license
plate made at that prison's tag plant.
No relative had claimed his body.
Gill is now at Florida State Prison
near Starke - in a single-man cell.
[Source: Miami Herald] _

TERRORIZING
THE
CONSTITUTION
The Justice Department, Attorney
General John Ashcroft declared in

7

his confirmation hearings, is "the role
model for justice the world over." But
under Ashcroft that role model is
rapidly losing the confidence of allies
abroad and at home in the campaign
against AI Qaeda. Spain - a country
that after decades of Basque separatist
movement bombings knows about
fighting terrorists - openly declaring
that it will not extradite eight
imprisoned AI Qaeda suspects if they
could face military tribunals or the
death penalty, Around the United
States police chiefs - who know· they
need the ground-level trust of
immigrant communities - are resisting
Ashcroft's plan for an open-ended trawl
among young men from Middle Eastern
nations.
Serious voices across the
nation say that secret immigration trials,
unreviewable military tribunals and
warrantless monitoring of attorneyclient conversations have little to do
with real security.
While the cops speak up. most
of Washington keeps its head down.
Just before Thanksgiving, Senate
majority leader Tom Daschle ducked
questions about the military tribunals.
Daschle now says he is "concerned" but
adds, "until we see· exactly how they
will promulgate this new concept it's
pretty hard f,>r us to come to any
.conclusions," Translation: I'd rather
not deal with this.
A few Congressional voices are
at last beginning to ask bolder
questions. It's mildly encouraging, for
instance, thal Democratic Senator
Patrick Leahy succeeded in getting
GOP colleagu~ Orrin Hatch to sign a
letter "inviting" Ashcroft to explain
himself before the Judiciary Committee.
In the House, Bob Barr and John
Conyers have joined forces to breathe
down the neck of their slow-moving
James
judiciary
chairman,
Sensenbrenner, What has legislators
rumbling is the sudden realization that
through a barrage of executive orders
and legal maneuvers, Ashcroft and
Bush are systematically seizing on the
Congressional prerogative to make the
law governing crime and punishment.

- - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Pollsters declare that civil
liberties have little resonance with
the broad public now. But the
public's sophistication and even
outrage about
legal
issues
sometimes runs ahead of the
Beltway. What it will take to
ignite that latent sensibility.
though, is leadership, starting with
vigorous questioning of Ashcroft
when he appears before Leahy's
committee.
The need for those
On
questions grows daily.
November 27 Ashcroft announced
that at least 550 people rounded up
after September II remain in
federal custody on immigration
violations and another 55 on
federal criminal charges. But once
again he refused to provide details
- claiming. absurdly, that he was
protecting the privacy of the
detainees. Still left unanswered
are basic questions including how
many have been detained on the
basis of secret evidence. a
discredited practice that Ashcroft
is now trying to revive.
The relentless Spanish
investigative magistrate Baltasar
Garzon. prosecutor of Gen.
Augusto Pinochet as well as those
eight AI Qaeda suspects, warns
against the direction Ashcroft
seems to be headed in: "It is npt
sufficient to say: 'I have the
evidence but I cannot make it
public for fear of endangering my
sources.' That is not a serious
. approach - it is simply illegal." _

CONTEMPLATING
DNA TESTING?
The spiral make-up of DNA have
moved its physical attributes into
the ideological realm. As Florida's
Legislators and the Florida
Supreme Court tangle themselves
in a web of who has the better way
to deal with DNA testing for
convicted prisoners, the men (and

PerspectIves

women) whose fate lies in the
balance are holding their breath.
Last May Gov. Jeb Bush
signed a bill giving inmates the
chance to make a request for DNA
testing to prove their innocence
regardless of the form of the
disposition of their case. However.
on October 18. 200 I. the Florida
Supreme Court issued a decision by
a 4-3 majority that modified the rule
providing DNA testing to exclude
cases in which a defendant plead
guilty or n& contest. .
The Court opinion deals in part with
ihe whole substance vs. procedure
argument and the inherent separation
of powers issue that reportedly came
up repeatedly during oral argument.
Highlights of the Court's decision
are as follows.
In February 200 I. the
Criminal Rules Committee tiled an
emergency petition asking the
Supreme Court to adopt new rule
·3.853 providing for post conviction
DNA testing.
During the 200 I
regular session. and after the
Criminal Rules Committee tiled its
original petition. the Legislature
passed DNA legislation. which.
among other things, provides for
post-sentencing DNA testing. See
ch. 2001-987 Laws of Florida
and
(creating section 925.11
943.3241 and amending section
943.325. Florida Statutes). After
considering the proposed rule. which
varied from the new legislation in
several aspects. the court returned
the matter to the Criminal Rules
for
expedited
Committee
reconsideration in light of the new
legislation. What followed was an
amended petition published for
comments and oral argument was set
for August 28. 200 I.
Proposed rule 3.853 varies
from the new DNA legislation
passed by the Legislature. The most
significant variation is the provision
that addresses who may seek post
conviction DNA testing and the
laboratory or agency. that must
conduct the testing. Chapter 2001-

8

97. section I. Laws of Florida. create!
section 925.11 (I lea). Fla. Stat., whid
provides that a person. regardless 01
how his case was resolved. may movI
the court to order post-sentencing DNA
testing. Like the legislation, propose~
rule 3.853 (a) authorizes DNA testin~
for those who have been tried and
convicted but excludes those whe
entered guilty or not guilty pleas.
The majority of those who filed
comments in opposition to proposed
rule 3.853 raised separation of powers
concerns, taking the position thai
subdivisions (a) and (c)(7) deal wit~
substantive matters that are within th~
sole purview of the Legislature. The
proponents of the rule maintain thai
these provisions are either procedural in
nature or w;thin the Supreme Court's
constitutional authority to issue writs of
habeas corpus under Article V, Section
(8) of the Florida Constitution.
After oral argument the Court
adopted the proposed· rule without
reaching the constitutional issues raised
in the proceedings. The Court modified
proposed subdivision (a) of the
proposed rule to explain that the new
rule simply provides procedures for
obtaining DNA testing under section
925.11, Fla. Stat. Subdivision (b) of
rule 3.853 lists the required contents of
a motion seeking DNA testing.
Subdivision (b)(4) was modified to
require a statement that identification of
the movant is a genuinely disputed
issue in the.caroe, and why it is an issue.
or an explanation of how the DNA
evidence would either exonerate the
defendant or mitigate the sentence that
the movant received.
Subdivision (e) of the new rule
provides gen..-:ral procedure to be
followed after a motion for testing is
filed. Specificdlly. the Court amended
subdivision (c)(7) to allow the court, on
showing of good cause. to order testing
by a laboratol') or agency, certified by
the American Society of Crime
Laboratory Directors or the National
Forensic Science Training Center. other
than the- FDLE or its designee when
requested by a movant who can bear the
costs of such testing.

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Subdivision (d) of the new
e provides a two-year time
litation and subdivision (d)(2)
)vides that a motion to ,vacate
ed under rule 3.850 or a motion
ed under 3.851, which is based
lely on the results of the courtdered DNA testing obtained
der this rule, shall be treated as
ising a claim of newlyscovered evidence' and the time
:riods set forth in rules 3.850 and
851 shall commence on the date
at the written test results are
ovided to the court, the movant,
Id the prosecuting authority
Irsuant to subsection (c)(8).
~ditor's Note:
FPLP provided
'evious coverage on this proposed
NA testing rule in Vol. 7, Issues
and 4.] _

STATE AGENCY
HOMEVENUE
PRIVILEGE
AN OVERVIEW
by Oscar Hanson
is well-established within the
ommon law that venue in an
ction against a governmental
geney lies in the county where the
,geney maintains its principle
leadquarters., See: Carlisle v.
'Jame & Fresh Water Fish
":omm 'n, 354 So.2d 362,.363 (Fla.
1978). This rule, often called the
'home venue privilege," arises out
)f common law concepts of
lovereign
,immunity,
which
~rovides a government immunity
from being sued in its own courts
without its consent. The home
venue privilege is, however,
subject to a limited exception
known as the "sword-wielder"
doctrine.
Figuratively, this
exception allows a plaintiff to
bring an action against a state
agency as a shield from an attack
upon the plaintiff by the state's
sword.

Perspectives - - - - - - - - - - - - . . . ; . . . - -

As an initial matter, the
parties dispute who bears the
burdens of proof and persuasion
when establishing the application of
the home venue privilege or the
application of the sword-wielder
exception to that privilege. This
issue is admittedly confusing
because, pursuant to established case
law, the burdens shift back and forth
between the. parties. See: State
Dep't of Labor & Employ. Sec. v.
Lindquist, 698 So.2d 299 (Fla. 2d
. DCA 1997).
When an agency
wishes to challenge a plaintiff's
venue selection, it must first raise
the issue in a motion to dismiss or an
answer to the complaint.
The
agency has the burden 'to prove its
right to the governmental home
venue rule. Cf. Tropicana Prods.•
Inc. v. Shirley, 501 So.2d 1373(Fla.
2d DCA 1987).,
.
Typically, the headquarters
of the agency is established by law
or is otherwise an admitted fact, and
no additional evidence, is required to
prove the general application of the
home venue privilege. The burden
then shifts to the plaintiff to plead
and prove facts .establishing an
exception to the general rule. Id. at
1375. If the plaintiff pleads these
allegations and presents evidence to
establish
the
sword-wielder
exception, then the agency must
respond with conflicting evidence or
the plaintiff prevails on hjs venue
Lindquist, ' 698
selection.
See:
. So.2d 299. Finally, if the ,agency
responds with conflicting evidence,
then the burden of persuasion
returns to the plaintiff, and the trial
court must resolve the factual
dispute. Id.
In Lindquist, it appears that
the plaintiffs anticipated the venue
issue and pleaded undisputed facts
in their initial complaint sufficient to
overcome the application of the
home venue privilege.
Once a
plaintiff has pleaded, such facts,
Lindquist holds that the ,agency must
respond "ith evidence challenging
the plaintiff's allegations, and only

9

then does the burden of persuasion
return to the plaintiff to prove the basis
for its venue selection. In Lindquist,
the plaintiffs made sufficient allegations
to support the 3pplication of the swordwielder exception, and the agency never
responded with evidence that would
. cause the burden to return to the
plaintiff.
Under
the
sword-wielder
doctrine, an agency can be sued in
another country if the original action
complained of occurred within the
county or there is an imminent threat of
such action. Such a suit can be filed
outside, the agency's home venue only
if the primary purpose of the lawsuit is
to optain direct judicial protection from
an alleged unlawful invasion of the
constitutional rights of the plaintiff
within the county where the suit is
instituted. See Dept. of Corrections v.
Ross, 680 So.2d 622 (Fla. Sib DCA
1996). Although the Supreme Court of
Florida has officially recognized the
sword-wielder doctrine in Carlisle, it
has not yet applied the doctrine in any
case.
Of particular interest to litigants
challenging the constitutionality or
validity of a statute, rule, or regulation,
is the use of a declaratory judgment
pursuant to Section 86.011, Florida
Statutes.
The circuit courts have
jurisdiction to declare rights, status and
other equitable or legal relations
whether or not further relief is or could
be claimed. When contemplating a
declaratory action a prospective litigant
should become familiar with the home
venue privilege as well as the swordFish and
wielder doctrine. "See:
Wildlife Conv. Comm. 11. Wilkinson, 26
Fla. L. Weekly D 2026 (Fla. 2d DCA
8/17/0 I) _

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FLORIDA PRISON LEGAL

Perspectives

POST CONVICTION CORNER

T

he focus of many of my previous articles has been
on a motion for post conviction relief which is filed
with the trial court pursuant to Florida Rule of
Criminal Procedure 3.850. As Rule 3.850 is probably the
most used post conviction vehicle it makes sense for
someone who is researching his or her post conviction
case to dedicate a substantial amount of time to an attack
pursuant to said rule. However, an often overlooked and
worthwhilepost conviction possibility is an attack on the
appellate process via a .Florida Rule of Appellate
Procedure 9.141(c) Petition for Writ of Habeas Corpus
alleging ineffectiveness of appellate counsel.
In the State of Florida a defendant has a right
under the Florida Constitution to pursue a direct appeal
from a trial court's imposition of a Judgment and
Sentence. See Art. V., §4(B), Florida Constitution. And,
where a state provides for a direct appeal as a matter of
right (as Florida has done), a criminal defendant has a
right to counsel to help prosecute his appeal. Douglas v.
California, 372 U.S. 353 (1963); and, State v. Weeks, 166
So.2d 892 (Fla. 1966). Most importantly. the right to
appellate counsel is the right to effective assistance of
such counsel. Evitts v. Lucy, 469 U.S. 387, (1985).
Florida Rule of Appellate Procedure 9.141(c)
provides the authority fora petition for writ of habeas
corpus alleging ineffective assistance of appellate counsel.
.The 9.141(c) petiti9n must be filed with the appellate
court to which the direct appeal was or should have been
taken. As with Rule 3.850, a 9.14I(c) petition has a
period of limitations. A petition for belated appeal
alleging ineffectiveness of appellate counsel must be filed
within two years of when the conviction in question
becomes final. The only way around the two year period
of limitations is if the petitioner alleges under oath that he
or she was affirmatively misled about the results of the
appe~1 by appellate counsel. Florida Rule of Appellate
Procedure 9.141(c)(4)(B).
A rule 9.141 petition must provide the following:
.

•

The date and nature of the lower court's order to
be reviewed
• The name of the lower court rendering the order
• The nature, disposition, and dates of all previous
proceedings in the lower tribunal and, if any,
several fronts. Firstly, if the issue to be raised goes to the
heart of the case the appellate court needs to be made

•

•
•

by Loren Rhoton,

E~

appellate courts
If a previous petition for a belated appeal was
filed, the reason the claim in the present petition
was not raised previously
The nature of the relief sought, and
The specific acts sworn 10 by the petitioner thai
constitute the alleged' ineffective assistance of
counsel

Typically the relief that will be requested is a
belated appeal whereby the petitioner can raise an
appellate issue that could have, and should have been
raised in the original direct appeal. Therefore, the \ssue to
be raised in a petition for writ of habeas corpus alleging
ineffectiveness of appellate counsel is that counsel was
ineffective for failing to raise a meritorious issue. Groover
v. Singletary, 656 So.2d 424 (Fla. 1995). The actual legal
issue that was not raised on appeal is only relevant to
determine .whether the petitionet should be afforded the
opportunity to present that issue in a belated appeal.
Rogers v. State, 698 So. 2d 1178 (Fla. 1996).
As with ineffectiveness of trial counsel claims, the
test for ineffectiveness of appellate counsel is a two
pronged test where both ineffectiveness and prejudice to
the petitioner must be established. Thus, to detennine
whether appellate counsel was ineffective, the appellate
court's evaluation is limited to: "tirst, whether the alleged
omissions are of such magnitude as to constitute a serious
error or substantial deficiency falling measurably outside
the range of professionally acceptable performance and,
second, whether the deficiency in performance
compromised the appellate process to such a degree as to
undermine confidence in the correctness of the result."
Groover v. Singletary, 656 So.2d 424, 425 (Fla. 1995).
Once a petition alleging ineffectiveness of
appellate counsel is filed, the appellate court will often
issue an Order to Show Cause to the State directing the
State to reply to the Petition. Often the State will reply,
without any supporting evidence, that appellate counsel
should not be deemed ineffectiv~· for choosing to pursue
other stronger appellate arguments in lieu of the one that
counsel is alleged to have been ineffective for omitting.
See Julius v. Johnson. 840 F.2d 1533 (111h Cir. 1988).
This is a veiled strategy argument that can be rebutted on
aware of the importance of the issue. An issue that is
crucial to the validity of the conviction and goes to the

lO-----~--------

FLORIDA PRISON LEGAL

heart of the case .....cannot be excused as mere strategy or
allocation of appellate resources." Wilson \'. Wail/wright,
474 So.2d 1162 (Fla. 1985). Additionally, it is important
to point out to the court that a court's finding that some
action or inaction by counsel was tactical is generally
inappropriate without an evidentiary hearing.
See.
Thomas v. State, 634 So.2d 1157 (Fla. 1st • DCA 1994).
If the appellate court determines that the petitioner
has demonstrated both ineffectiveness of appellate counseI
and resulting prejudice, then a belated appeal will likely
be granted. At that point the petitioner will then be able to
pursue the issue that was previously omitted from his or
her original direct appeal and the rules of appellate
procedure will all apply to any further proceedings.
Hopefully this article has added another angle of attack for

PerspeCtives

some people who were previuusly unaware of Rule
9.141(c). Rule 9.141(c) mayor may not be something that
is helpful, depending on the case, but it is always
something worth looking into whell one is researching
post conviction options.

Loren Rhoton is a member in good standing
with the Florida Bar and a member of the
Florida Bar Appellate Practice Section. Mr.
Rhoton practice.~ almost exclusil'e~v in the. "
post conviction/appellate area of the law.
both at tin! State and Federal Level. He ha.~
assisted hundreds of il;carcerated persons
with their cases and has numerous written
appellate opinions.

~
'

..~',

'.

~

In memory of those who have passed on•••
October
Carlyle Collins - Everglades
Jimmy Coleman - NFRC
Gary W. Sayers. NFRC
Bruce D. Simmons - Moore Haven
Greg Williams - Everglades
Frederick R. Thomas - NFRC
Jimmy Wilson· NFRC
Charles E. Stone· Union
Harvey J. Smith· NFRC
Carlos Roman - NFRC
Mary L. Bayer· Gadsden
James Fussell - NFRC
Segundo Forteza • NFRC
. Thomas E. McKeithen - NFRC
Willie Mitchell - Okeechpbee
Timothy L. Velie· NFRC
Otis L. Hardrick - Taylor

November
Windford Mines· NFRC
Billy R. Whetstone - NFRC
Christopher E. Taylor - FSP
Kevin L. Smith· Everglades
Raymond Bennett - CFRCS
Herman Watson - NFRC

Nov. continued
John C. Briley - NFRC
William E. Jamison - NFRC
Jay J. Hale - Tomoka

December
Paul Lemire - Marion
James M. Kennedy - Union
Leroy Anderson - Jackson
Burt James - SFRC
Charles A. Williams· CFRCS
Juan Garcia - Everglades
Vanessa R. Miller· Lowell W
Maurice Lamorris - NFRC
Edward L. Rodriguez - NFRC
John R. Wilson· CFRC
Burie Davis· NFRC
Perry L. Sellers· NFRC
Dan Williams - NFRC
Daniel K. McGowin - New River W
Jimmie L. Maxie· NFRC
Dwayne Dorsey - Everglades
James A. Jones· NFRC
James C. Johnson - Glades
Lawrence Singleton - NFRC
Roger Dolan - NFRC

Sponsored by Inmate Clerical Solutions, Inc.
412 East Madison Street, Suite 1109
Tampa, FL 33602 (813) 390-3447

11-------

_

--------~- FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - -

~OTON & HAYMAN,

II·

. LORE,~ D.RHOTON

i
,

~1. .-~;.

Attorney At Law

P.A.

STEPHEN D. HAVMAN
Attorney At Law '

\.

~~~~~~~~~~=====ffi

ifr='

{+.)

BEGGS CASES

{+}

APPEALS

~.' \!.:

STATE POST CONVICTION

~!}

SENTENCE CORRECTIONS

{!.:

FEDERAL PETITIONS FOR WRIT
OF HABEAS CORPUS

{!.:

NEW TRIALS

~i.

12--------------

- - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - -

MICHAEL V. GIORDANO
AGGRESSIVE POST CONVICTION REPRESENTATION
The Law Offices ofGiordano & Luchetta
P.O. Box 290008
Temple Terrace, FL 33687
(813) 228-0070
(813) 221-2603 FAX

A STATEWIDE practice specializing in Post-Conviction
Relief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**
. ** DIRECT APPEALS **
** HABEAS CORPUS **
** POST-CONVICTION RELIEF **
*INEFFECTIVE COUNSEL
"'WITHDRAWAL OF PLEA
"'ILLEGAL SENTENCES
"'ACTUAL INNOCENCE
"'I.N.S. DEPORTATION

I am a fonner Assistant State Attorney (Felony Division Chief), Assistant· Public
Defender (Lead Trial Attorney), and member ofthe faculty at the University ofFlorida
. College of Law. I have devoted over 24 years to the teaching and practice ofcriminal
defense law, and I am an author of a text on federal practice in the Eleventh Circuit.
The major thrust of my practice has been post-conviction oriented. There is
approximately 60 years ofcombined experience in my office, including that ofa fonner
Assistant United States Attorney. I do not believe you can find more experienced
representation in the State of Flc;>rida or elsewhere..
The Ioirin;J of. bwyer is an imponont dccisWn lhot should not be bosed &oldy on advatiscm=lI. IIefOlll you d:ci=.11Sk US to 5Clld you &.c wrillcn infOllllalilm oholJl our quaIi&aItimts

13 - - - - -

_

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspecbves - - - - - - - - - - - - - - - -

The following are summaries of recent state and federal cases that may be useful to or have a significant impact on Florida
prisoners. Prisoners interested In these cases should always read the full case as published In the Florida Law Weekly (Fla.
L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Fed.); Southem Reporter 2nd Series (So.2d); Federal Supplement
2nd Series (F.Supp.2d); Federal Reporter 3rd Series (F.3d); or Supreme Court Reporter (S.Ct.).
.

FEDERAL'
U.S. Supreme Court
Becker v. MOlllgomery. 121 S.Ct.
1801 (2001)

Failure to sign timely notice
of appeal did not require the Court
of Appeals to dismiss appeal.
Imperfections in noticing an appeal
should not be fatal where no
genuine doubt exists about who is
appealing. from what judgment. to
. which appellate court.
(2001 )
Prison Litigation Reform Act
(PLRA) requires administrative
exhaustion prior to inmate's filing
of civil rights lawsuit even where·
grievance process does not permit
award of money' damages and
inmate seeks only money damages.
as long as grievance tribunal has
authority to take some action in
response to inmate's complaint.

DUllcan v. Walker. 121 S.Ct. 2120
(2001
Application for federal habeas
corpus revie\v is not "application
of State post conviction or other
collateral review." within meaning
of tolling provision of the
Antiterrorism and Effective Death
Penalty Act (AEDPA): thus. time
for filing federal habeas petition
was not tolled during pendency of
a petitioner"s first federal habeas
petition.

Alabama \'. Bo:eman, 121 S.Ct.

Federal Circuit Court

2079 (2001)
Interstate
Agreement on
De\R\nerS (lAD) basically (I) gives
a prisoner the right to demand a
trial within 180 days. and (2) gives
a state the right to obtain a prisoner
for purposes of trial. in which case
the state (a) must try the prisoner
within 120 days of his arrival, and
(b) must not return the prisoner to
his original place of imprisonment
prior to that trial. However, the
lAD does not bar a receiving state

Harrell \'. BUllenl'Orlh. 251 FJd
926 (I\th Cir 200\)
The Florida Supreme Court's
decision in Harrell \'. Stale. 709
So.2d 1364 (Fla. 1998). that
witnesses' testimony via two-way.
closed-circuit satellite transmission
did not violate constitutional rights
and was neither contrary to. nor an
unreasonable
application
of.
Federal law set forth by Supreme
Court cases.

Boolh v. Churner. 121 S.Ct. 1819

,.

from returning a prisoner before
his trial is complete when it would
be mutually advantageous, and the
prisoner accordingly waives his
rights under lAD to be tried prior
to his return to sending state.
Absent a knowing and voluntary
waiver. the literal language· of
Article IV (e) bars any further
criminal proceedings when a
defendant is returned to the
original place of imprisonment
(Le.. the sending state) before his
trial.

Hall v. Moore. 253 F.3d 624 (111h
Cir 2001)
A defendant who wishes to
waive his Sixth Amendment right
to the assistance of counsel at a
critical stage and proceed pro se
must clearly and unequivocally
assert
his
right
to
selfrepresentation, and the court must
conduct a hearing to ensure that
the defendant is fully aware of \,,~
dangers and disadvantages of
proceeding without counsel.
Hubbard v. Hale\'. 262 F.3d 1194
(II th Cir 200 I) .
Prison Litigation Reform Act
(PLRA) did not permit group of
prisoners· bringing in forma
pauperis section 1983 civil rights
actions against corrections officials
to join claims and thereby divide
single mandatory filing fee among
them, regardless of prisoners'
contention:; that federal joinder
rule governed and that their claims
arose out of same transaction or
occurrence and involved common
question of law. PLRA required
separate action and payment of full
tiling fee by each prisoner.
~'. Thornloll. 267 F.3d
125\ (11 'h Cir2001)
Florida
prisoner
David
Skirtich brought a section 1983
civil rights action against Florida
prison guards. alleging that he was
subjected to excessive and
unjustified use of force while

Skirlic:h

---------------14 ----------------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

incarcerated in violation of his
Eighth and Fourteenth Amendment
rights.
Asserting qualified
immunity, the prison guards filed
motions for summary judgment or
to dismiss. The United States
District Court for the Middle
District of Florida denied the
motions, and the prison guards
appealed. The Eleventh Circuit
Court of Appeals held that: (1 )
prison guards' alleged beating of
prisoner during a cell extraction,
after he had been incapacitated by
a shock from an electronic shield•.
violated the prisoner's Eighth
Amendm~nt rights; (2) prison
guards' alleged beating of prisoner
violated
clearly
established
constitutional law and, thus. their
actions, if proven, would not be
protected by qualified immunity;
(3) prisoner's injuries did not
result from a de minimis use of
force; and (4) defendant's .third
motion to dismiss filed by two of
the prison guards was improper
and should have been dismissed.
[Note: Some of the prison guards
being sued in the above case are
also awaiting trial for the seconddegree murder of prisoner Frank
Valdes at Florida State Prison in
July 1999.]
.

Caniff v. Moore, 269 F.3d 1245
(1I tb Cir.2001)
Under Florida law. an
Interstate Agreement on Detainers
(lAD) claim is cognizable on
direct appeal, but not on a post
conviction motion. See Vining v.
Slale, 637 So.2d 921 (Fla.). cert.
denied, 513 U.S. 1022 (1994);
Remela v. Dugger, 622 So.2d (Fla.
1993).
Because Caniff brought his
lAD claim on direct appeal but
subsequently voluntarily dismissed
it, he defaulted on his lAD claim
unaer Florida law. and thus was
barred from raising the claim on
federal habeas corpus review.

Perspectives - - - - - - - - - - - - - - -

Federal District Court
Wilsoll v. Silcox. 151 F. Supp. 2d
1345 (N.D. Fla. 200 I)
Florida prisoner brought pro se
action against prison guard, alleging
that the guard violated. his First
Amendment rights by threatening
him with violence after he had filed
a section 1983 civil rights action
against the prison guard's brother.
Upon prison guard's motion for
summary judgment. the United
States District Court held that
• genuine issue of material fact
existed as to whether prison guard
made
statements
threatening
prisoner for having sued prison
guard's brother in an earlier case,
precluding summary judgment.

Randles v. Hes/~r, 14 Fla. L. Weekly
D475 (M.D. Fla. 8/9/01).
Allegations in complaint by
Florida prisoner filed pursuant to
section 1983 state a sufficient claim
under the Eighth Amendment where
plaintiff alleged' that defendant
ordered him to clean up blood spills
from other prisoners. that defendant
knew of substantial risk posed by
exposure to blood, that defendant
was himself concerned about
location of cleaning . supplies
prisoner used to clean other
prisoners' blood, and that defendant
refused to provide prisoner with
protective clothing. which was
maintained by DOC in form of
blood spill kit.
•No qualified
immunity available under facts of
. the complaint.

S'fAI'E
Ex Parte Probable Cause'
Determination Under Ryce Act
Must Be Supported By Sworn
Affidavit Or By A Verified
Petition
Thirteen detainees under the Jimmy
Ryce Act (q.v. section 394.910 et.

.

seq.. Fla. Stat.)· petitioned that their
detentions were illegal because the ex
parte probable cause order on which the
detentions were based were not
supported by sworn evidence. The
Second District Court of Appeal noted
that the Act does not state whether a
petition initiating a commitment
proceeding must be sworn, nor does it
identify the basis on which the court is
to make its initial probable cause
determination.
The statute simply
directs that upon filing of the petition
the court is to determine whether
probable cause exists to believe that the
person named in the petition is a
sexually violent predator.
The District Court held that the
determination must be found on sworn
proof. First, the Court reasoned that
determining wHether there is probable
cause to believe something requires a
consideration of factual circumstances
and the making of mixed conclusions of
law and fact.
Absent the parties'
stipulations. courts may only find facts
based on sworn evidence; mere
unsworn allegations are insufficient to
prove any fact. Second, the Court
determined
that
the
legislature
prescribed the early ex parte judicial
probable cause determination in order
to furnish the alleged predator due
process before depriving him of his
liberty pending trial on the merits of the
commitment petition.
The Court did deliver a stark
warning. A person's complaint that he
has been detained witl10ut due_process
becomes mooted by a subsequent
proceeding in which he is detained after
being afforded Jue process. See Melvin
v. Slale, 26 Fla. L. Weekly D 2733 (Fla.
2d DCA 11/16/01).
The Continuing Saga Of The Jimmy
RyceAct
In yet another Jimmy Ryce Appeal. the
Fifth District Court of Appeal was
confronted witl) the decisive issue of
whether the extensive hearsay evidence
which was permitted to go to the jut)'
deprived Florida prison Damon Jenkins

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 15 - - - - - - " - - - - - - - - - - -

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

of a fair trial guaranteed by the
state and federal constitutions.
The hearsay evidence in
question consisted of police reports
containing unsworn allegations of
serious
sexual
misconduct
introduced to the jury w.ithout
providing Jenkins any opportunity
to confront the witnesses. The
Court recognized that the Due
Process Clause applies equally in
criminal and civil actions that
implicate fundamental rights of
life,
liberty,
or
property
notwithstanding the legislature's
intent to allow hearsay evidence to
be introduced at trial. While the
evidence may be introduced, it
may. not serve as the sole basis for
commitment.
See:
Section
394.9155 (5), Fla. Stat.
The Fifth DCA correctly
construed the Ryce statute in light
of the Fourteenth Amendment
right of confrontation. ,The Court
stated that the Florida Legislature
cannot rescind the due process
protections of the United States
Constitution.
In this case, the Court
addressed two problems. One is
the nature of the hearsay which the
trial court permitted to go to the
jury.
Police officers were
permitted to testify from police
reports as to what out-of-court
witnesses had told police that
others had told them., This broad
band of out-of-court statements,
which . compose the hearsay
spectrum, goes from reliable
hearsay to rumor to gossip.
The second problem was that
Jenkins was committed almost
solely on hearsay evidence.
Experts presented evidence in the
form of "opinions" based on the
police reports which contained not
only hearsay but also double
hearsay, and perhaps even triple
hearsay. The Court decided that
this type of unreliable hearsay that
factored into the expert's opinion
was no more than garbage in and
garbage out.

PerspectIves

The Court
reversed
the
commitment but suggested that if
the State is truly concerned that
Jenkins remains a danger to others
then they may consider the Baker
Act.
The Court stated that a
commitment under the Baker Act
would be far more humane, and
perhaps even prove genuinely
helpful, than confinemen~ under the
Ryce Act. See: Jenkins v. State, 26
Fla. L. Weekly D 2862 (Fla.5 Ih
DCA 11/30/01)
[Comment: The constitutionality of
the Jimmy Ryce Act has again been
challenged.
The United States
Supreme Court reversed the Kansas
Supreme Court and held the Kansas
civil commitment statute (a statute
very similar to our Jimmy Ryce Act)
constitutional .under the federal
constitution.
See:
Kansas v.
Hendricks, 521 U.S. 346 (1997).
The Kansas Supreme Court has
again, for a reason not considered by
the United States Supreme Court's
earlier decision, invalidated their
statute. In its Hendricks opinion, the
United States Supreme Court
operated from what appears to have
been a defense stipul!ltion that
Hendricks was indeed a danger to
society and would likely commit
additional violent sexual offenses if
not kept confined. In reerane, 7 P.
3d 285 (Kan. 2000), the Kansas
Supreme Court again held its statute
unconstitutional because there is no
requirement in its' act that there be
proof that a respondent is in~apable
of controlling his behavior. This
matter is once again before the
United States Supreme Court. In the
concurring opinion in Slate v.
Brewer, 767 So.2d 1249 (Fla. 51h
DCA 2000) (Harris, J. concurring),
the problem relating to conviction
by profile was discussed. Further, in
Westerheide v. Stale, 767 So.2d 637
(Fla. 51h DCA 2000), the Fifth DCA
held the Jimmy Ryce Act' to be
constitutional under the Florida
Constitution.
This matter. is
presently pending before the Florida

Supreme Court for consideration - oh]

Prisoner Civil Action
Under 57.085 Fla. Stat
Florida prisoner Lester Johnson filed a
civil action in the circuit court, which
was ultimately dismissed for failure to
comply with tht: requirements of section
57.085, Florida Statutes (1999).
Johnson failed to pay the statutory
'filing fee and did not provide a list of.
each suit~ action, claim, proceeding, or
appeal filed in any court or other
,adjudicatory forum in the preceding
five . years, as required by section
57.087 (7).
On appeal, the Fourth- District
Court of Appeal affirmed the dismissal
because Johnson had failed to comply
with the prior litigation listing
requirement of section 57.085 (7). (The
Supreme Court· declared the "copy"
requirement in section 57.085 (7) to be
unconstitutional but left intact the
litigation 'listing requirement.)
Noteworthy was the district court's
discussion of Johnson's indigence. The
Court's recognized that an indigent
prisoner is one who does not have
sufficient funds to pay in full for a
lawsuit upon filing. See:, Geffken v.
Strickler, 778 So.2d 975, 976 (Fla.
200 I). Johnson's account information
indicated that at the time he filed his
civil action he had a balance of $89.16,
less than the required $95 filing fee,
rendering him II1digent. See: Johnson
v. Burns. 26 fla. L. Weekly D 1822
(Fla. 41h DCA 7125/01).

Habeas Corpus Challenging
Close Management
In order to obtain habeas relief
from close management status, the writ
must allege harassment, lack of due
process, failure of the DOC to comply
with its own rules regarding close
. management, or other grounds which
provide a basi~ to grant a release from
CM. Cf. Tay/or v. Perrin, 654 So.2d
1019 (Fla.. 151 DCA 1995); Granger v.
FSP, 424 So.2d 937 (Fla. 151 DCA
1983). See: Holland v. State, 26 Fla.

-----------------16------

_

--------~------ FLORIDA PRISON.LEGAL Perspectives - - - - - - - - - - - - - - -

L. Weekly D 2076 (Fla. 51h DCA
8/24/01).

Department's Arbitrary
Abandonment Of Procedure
Encroached Prisoner's Due
Process Rights And Warrants
Relief
Prison guards at Polk
Correctional Institution received
infonnation that prisoner Nickolas
White was involved in the use of
LSD. Based on this information a
"for cause" drug test was
administered on White. Because
the DOC's drug testing facilities
were not suited for testing for
LSD, White's urine sample was
sent to an outside commercial
laboratory for testing.
The
unquantified test results showed a
positive result for the presence of
LSD in White's sample.
In the ensuing disciplinary
proceeding, White was found
guilty of unauthorized use of drugs
and was sentenced to 60 days in
disciplinary confinement and a loss
of 180 days gain time. After
exhausting available administrative
remedies, White sought relief in
the courts.
White's argument was that
DOC's rule (FAC 33-602.2045)
for drug testing mandates a retest
of any sample that gives a positive
result and that no retest was
performed in his case. The DOC
argued that the testing procedures
used by the commercial lab "Were
in compliance with the lab's
protocol, as well as state and
federal law.
Following the denial of his
mandamus in the circuit court.
White soughr certiorari review in
the district court. The district
court analyzed the procedural rule
and DOCs interpretation and
determined that the DOCs refusal
to apply the established procedure
in this case was nothing but
arbitrary and reversed the circuit
court's order with directions to

grant mandamus relief.
See: White v. Moore, 26
Fla. L. Weekly D 1583 (Fla. lSI
DCA. 6/21/01).

Florida's 85 Percent Statute
Survives Constitutional Cha~lenge
The Stop Turning Out Prisoners Act,
which among other things requires
Florida prisoners to serve a
minimum of 85 percent of their
sentences prior to release, has
survived a constitutional challenge.
Florida prisoner John West
argued that the title to chapter 95294 was constitutionally insufficient.
Under The Florida Constitution, the
subject of a law "shall be briefly
expressed in the title."
Art 3.
Section 6. Fla. Const. (1968). West
contended that the title was
insufficient because it did not
include a specific reference to the 85
percent rule.
The Third District Court
rejected this argument and held that
the title gave fair notice that it
modified the law relating to the
release of prisoners. Thus, the title
was adequate and does not violate
the
constitutional
provision
discussed above.
See: West v. State. 26 Fla.
L. Weekly D 1598 (Fla. 3 rd DCA
6/27/0 I).

DCA Allows Extended Time For
. State To Amend Petition To
Conform To Melvin Requirements
In yet another civil commitment
case, three
Florida prisoners
petitioned for a writ of habeas
corpus to obtain their immediate
release from detention under the
Jimmy Ryce Act. See sections
394.910-931. Fla. Stat. (200 I). The
trial court vacated the initial. ex
parte probable cause determinations
in each case based on Melvin v.
State, 26 Fla. L. Weekly D 2733
(Fla. 2d DCA Nov. 16, 2001).
(concluding that the Jimmy Ryce
Act's ex parte probable cause

determination must be supported by
sworn proof in the form of a verified
petition or affidavit). However. the
Court permitted the State to amend the
petition within nine days to conform
with Melvin's requirements.
The
Petitioner's argued that since there was
no valid probable cause determination
. now existing. they were entitled to
immediate release.
The F"urth District Court of
Appeal disagreed on the authority of
Johl~son v. Department ofChildren and
Family Service·s. 747 So. 2d 402, 403
(Fla. 41h DCA 1999), in which the
appellate COUlt allowed the state
seventy-two hours to file a sufficient
multidisciplinary team report when the
ex parte probable cause determination
had been on an insufficient report. See:
Hawker v. Greer, 26 Fla. L. Weekly D
2895 (Fla. 41h DCA 11/29/01).

Rule 9.141 (e) Petition And Rule
3.850 Motion May Be Filed
Simultaneously
Florida prisoner William Gawronski
appealed the summary dismissal of his
motion for post convittion relief filed
pursuant to Rule 3.850. The trial court
had based th~ dismissal on its claim that
it
lacked
jurisdiction
because
Gawronski had pending a Rule 9.141
(c) petition lllat .alleged ineffective
assistance of appellate counsel.
On appeal. the Second District
Court of Appeal reversed the trial
court's order of dismissal on the
authority of Francois v. Klein, 431 So.
2d 165 (Fla. 1983) (holding that
because a claim of ineffective
assistance of trial counsel is necessarily
separate and distinct from a claim of
ineffective assistance of appel.late
counsel, the two claims may proceed
simultaneously without danger of
conflicting and confusing rulings by
different courts). See: Gawronski v.
State, 26 Fla. L. Weekly D 2858
(12/5/0 I) •

---------------17---------

_

FLORIDA PRISON LEGAL

The staff and volunteer's ofFPLP
would like to extend our deepest
sympathy to the friends lind family of
Timothy Lewis Velie.
Tim's wife Tl9yla Velie has long
been a crusader for prison reform. She
took the reins of the Pen project a few
years back, and we thank her for her
tireless efforts in the CIlUSe.
Timothy Lewis Velie was born Nov.
10. 1949 and died Oct. 10,2001, be
was 51 yrs old. He Is survived by his
wife. four children, six grandc~lIdren
and his parents Sarah and Arthur
Powell all from Vero Beach Florida.
Tim spent 23 yrs. in FDOC prison
system with 18 oUhose at Avon Park
where he was head of hobby craft,
along with working for Pride for 5
yrs.. He was a finish carpenter and
also in the Lifers Program, and was a
believer in Jesus Christ.
He will be greatly missed.
Anyone who knows of or would be
interested in a bereavement group for
widows or widowers of inmates please
contact Mrs. Velie at 321-254-2045

Perspectives - - - - - - - - - - - - - - -

Odds .r\Bainst ~OU?
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Carr CTfte
. , CE'lua[ie;ers'
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*Supply Colored Doc Fact Sheet for 12 F.e.p.s.

Superior qn"estiBations ofOtorida
at: (727) 848 - 3923 ,
g> e ffiOl.ll: 384
~ fPod ~ gff 34656
''<When CfaUur~ .is not an Option"

DAVID W. COLLINS, Attorney at Law
fonne'r stale proseculor with more than 15 years of criminal law experience
"AV" rated.by Martindale-Hubbell Bar
, Register ofPreeminent Lawyers .

'You~ voice in Tallahassee representing prisoners in all

areas ofpo~t-collvictif!nrelief, including:
appeals
Heggs cases
habeas corpus
3.850 motions

wrils of mandamus
clemency
representalion before Parole Commission

Write ",e today about your easel
P.O. Box 541
Monticello, FL 32345
(850) 997-8111
, "n,e hiring ofa lawyer is an important derision that s';ollid not be based solely IIpon ad"ertisemt>IIIS. 'Before )'OU
decide. ask me 10 sendyOll/ree writ/en Informallon abo'" my qllafijkalions and e:cperienre. ..

18--------------

FLORIDA PRISON LEGAL

CA - Gov. Gray Davis vetoed $9.8
million out of the state's budget
that was intended to cover testing
for thousands of drug offenders
who are receiving treatment
instead of prison under the state's
new drug policy. All testing will
not be stopped, there is still almost
$8 million available for drug
testing in federal funds.
CA - During Oct. 2001, Ronnie
Hawkins. 51. who is serving a 25
years to life sentence in CA for
stealing $250 worth of painkillers.
agreed to settle his lawsuit against
a judge for $275,000. In 1998
while Hawkins was acting as his
own attorney at a sentencing
hearing in Los Angeles he
,\\\mupted the judge. She order
him shocked with the 50,000 volt
stun belt that Hawkins had on.
Hawkins sued the county alleging
he was denied a fair trial by the
judge ordering him to be stunned.
[Source:
Sacramento Bee.
10/8/01]
CA - In May 2001 the CA Public
Utilities Commission ordered MCI
Telecommunications Corp.
to
offset $522,458 in overcharges it
made between June 14, 1996 and
July 12, 1999, on CA prisoner
collect calls. The complaint was
tiled against MCI by a San Diego
consumer advocacy group. Utility
Consumer Action Network. The
actual details of the settlement
were kept secret.
Similar to
Florida, the CA DOC is allowed to .
give contracts to phone companies
that guarantee the biggest kickback
in commissions to the DOC. in CA
that amounts to 40-44 percent of
gross telephone revenues.
[Source:
Prison Legal News.
11/01 ]

co - The CO legislature is
considering a new law designed to
help reduce the state's budget

Perspectives - - - - - - - - - - - - - - - -

crisis by following California and
Arizona in sending minor drug
offenders to treatment programs
rather than prison.

FL - On July 10,2001, Fla. Dept. of
Corrections
Secretary
Michael
Moore replaced Michael Wolff with
Richard Dugger as Deputy Secretary
of the department. Wolff, who came
to Fla. with Moore when he took
over running the Fla. DOC in Dec.
. 1998 had been a controversial figure
since the beginning. often described
by veteran DOC employees as
Moore's "hatchet man:'
Moore,
who has faced growing criticism
anlid numerous scandals occurring
under his administration of the
prison system and opposition by
political forces who still view Moore
as an outsider. apparently selected
Dugger for the deputy secretary
position in an attempt to prevent his
own ouster. Dugger is a 35-year
veteran with the FDOC and was the
former FDOC secretary from 1987
to 1991 before being replaced with
Harry Singletary.
FL - It was announced in Dec. 200 I
that a new $3.7 million prison
located near St. Augustine to house
female juvenile offenders will
remain closed due to the state's
current financial problems. . The
prison would be the only one for
high-risk ju"enile prisoners in
northeast Florida. State lawmakers
say the state doesn't have the needed
$2.3 million to pay a private
contactor to operate the facility for a
year.
FL - David F. Patterson, 62, who
served as chief judge of the Fla. 2nd
District Court of Appeal retired from
that position in July 2001. Shortty
after his retirement, in Aug.•
Patterson spent 10 days in a
psychiatric ward after being accused .
by his wife of domestic violence and
being· suicidal while drinking

heavily during the past two years. A
week after being released Patterson was
arrested for drunken driving after a test
showed his blood-alcohol content to be
three times tile legal limit of 0.08.
[Source: The News Journal. 8/28/0 I]

FL - The MaylJune 2001 issue of
FPLP reported on allegations of
retaliation anll racial discrimination
against black prison guards in Florida.
. [See: FPLP. Vol. 7. Iss. 3, "Black
Prison Guards Allege Retaliation•
Discrimination'1 Fla. DOC Secretary
Michael Moore and then Director of
Institutions Richard Dugger promised a
full investigation of the black guards'
allegations of l1'.mpant racism in the Fla.
DOC.
On Aug. 28. 200 I. Moore
announced that the investigation was
complete and that it found no evidence
of racism or racial discrimination within
the department. State Sen. Kendrick
Meek (D-Miami) commented that, "It's
amazing how they can take corrective
action but find no wrongdoing," in
response to Moore stating that even
though no discrimination exists that the
DOC would improve posting of job
opportunities to respond to black
guards' complaints that they are often
passed over for promotions. The FDOC
claims it will continue to monitor four
prisons: Tomoka CI. Lake CI, Marion
CI, and North Fla. Reception Center
where many of the black guards'
complaints stemmed from.
Several
employment discrimination lawsuits
filed against the DOC by black
employees are still pending in court.
[Source: St. Petersburg Times]

FL - Broward County circuit court
judge Joyce Julian. 44, was arrested and
charged with disorderly intoxication
Dec. I. 200 I. after being found half
naked at a hotel hosting a conference
for judges on Amelia Island. Security
at the hotel told authorities they found
Julian lying on the third floor of the
hotel wearing only a shirt.
When
confronted security claims she refused
to identify herself and ran. Deputies

19 ----------~---.

FLORIDA PRISON LEGAL

arrested Julian after she became
belligerent, swore tat them and
continued to act disorderly.
Julian's attorney said his client had
no recollection of what happened,
but believes someone may have
slipped a drug into her drink to
incapacitate and assault her. Julian
was one of approximately 450
circuit court judges attending the
conference.
[Source: St. Petersburg Times,
12/6/01]
FL - On Dec. 18, 200 I, prisoners

at Sumter Correctional Institution
were provided some pre-Christmas
entertainment when prisoner Jose
Montenez borrowed a guard's golf
cart and took it for a spin.
Hundreds of prisoners going to the
noon meal were treated to the sight
of Montenez jumping into a prison·
captain's parked golf cart and
taking off around the compound to
blow the horn and yell "Yee Haw"
as prison guards chased behind
him. Montenez used the golf cart.
which are used at many Fla.
prisons to save guards from having
to walk, to spin donuts and pop
wheelies.
When
finally
surrounded, Montenez jumped off
the cart and climbed to the roof of
a complex of dormitories to
continue leading guards on a merry
chase, according to eyewitnesses.
Capering across the roof tops like
one of Santa's elves, Montenez
waited until all the guards got on
the roof before jumping down and
running to another complex to
climb on its roofs and repeat his
performance as almost the entire
prison's population, including
stunned and exhausted guards,
looked on. Montenez was finally
captured peacefully and escorted to
confinement still calling out "Yee
Haw."
FL - FDOC Secretary Michael

Moore alienated many FDOC
employees in July 2001 when he
announced that he had received

PerspectIves - - - - - - - - - - - - - - " ' - -

special permission from Gov. Jeb
Bush to apply for the position of
'Executive Director of the Texas
D~pt. of Criminal Justice (TDCJ).
Moore, a native of Texas, applied
for the position vacated by Wayne
Scott who retired on July 31, 200 I.
Moore contended with four others
for the $150,OOO-per-year job:
Dora Schirro, 'former head of the
Missouri prison system; 'Terry
Steward, head of the Arizona
DOC; Victor Rodriguez, head of
the TDCJ's parole department;
and, Gary Johnson, Director of the
TDCJ's Institutional Division.
Moore was passed over and
Jo~nson chosen for the job.
[Source: SOllthland Prison News,
11/01 ]
GA - On Oct. 5, 200 I, the GA

Supreme Court struck down use of
the state's electric chair saying the
ghastly injuries inflicted and the
risk of excruciating pain violate
the state constitution's ban on
cruel and unusual punishment.
The 4-3 ruling by GA's high court
leaves Alabama and Nebraska as
the only states with the electric
chair as the sole means of
execution. With the ruling, GA
automatically switched to iethal
injection for the 128 men and I
woman on GA's death row, as well
as those sentenced to death in the
future.
[Source:
New York Times,
10/6/01 ]
GA - Three tactical squads had to

be dispatched to Autry State Prison
to control a two-hour disturbance
during
mid-December,
200 I.
Reports state the incident may
have been sparked by a prisoner
was angry that his chicken wasn't
thoroughly cooked. During the
distur/lance, prisoners damaged
'. lights, broke sprinkler heads ofT"
broke windows. and set mattresses
on fire, prison official claimed.
[Source: USA Today, 12/18/01]

. HI - During Dec. 200 lone of four
defendants in a cellblock food
scandal at the Honolulu Police
Dept. pleaded guilty to theft and
agreed to testify against two highranking officers.
Former food
service worker Ernest Villanueva,
47, admitted that he had ordered
rack of lamb and prime rib at the
request of supervisors to feed
police officers out of the budget
for prisoners' meals.
IL - A Chicago judge freed three
men sentenced in the 1986 rape
and murder of a medical student
after a prosecutor adm\tted there
was no evidence to support their
convictions. Released were Calvin
Ollins, 29; his cousin, Larry Ollins,
31; and Omar Saunders, 32, after
14 years in prison. Charges were
also erased against another man,
Marcellius Bradford, who had
served 6 Y2 years after testifying
against the other three. Bradford
claimed he testified against the
others uncler police coercion and to
avoid a life sentence. DNA tests
showed that hair and semen on the
victim didn't come from any of the
four men.
IL - In Oct. 200 I a Chicago
federal court jury awarded $15
million to James Newsome, 46,
who was imprisoned for 15 years
for a murder for which he was later
pardoned. The award represented
$1 million for each year that
Newsome was in prison for the
1979 murder of a grocery store
owner during a robbery. The jury
found that Newsome had been
fram'ed by two Chicago homicide
detectives
who
coached
eyewitnesses.
Newsome's
conviction had been expunged in
1994
after
another
man's
fingerprints were found at the
crime scene.
[Source: AP, 10/29/0 I]

MO - Prisoner David Perkins, 45,
was sentenced to life during Dec.

20 - - - - - - - -

_

FLORIDA PRISON LEGAL

2001 after being convicted of
kidnapping a female medical
records employee at the Jefferson
City Correctional Center .and
holding her hostage during an
eight-hour standoff.
[Source: USA Today; 12/1 8/0 I]
MO - On Aug. I, 200 I, Greene
Co. jail guards Justin Hastings, 21,
'and Curtis Myers, 26, were
charged with four misdemeanor
counts' of third-degree assault for
urinating on four prisoners playing
basketball in the jail's recreation
area. The prisoners said the guards
urinated on them from a metal
grated roof overlooking' the rec.
area. Both guards resigned. While
a number of states make it a felony
for prisoners to throw bodily waste
on prison employees, none
a~parently make it a felony for
prison or jail employees to throw
bodily wastes on prisoners.
[Source:
Prison Legal News,
1110 I]
OK - OK Attorney General Drew
Edmonson
predicted
that
executions in that state are
expected to decline in 2002 from
the number executed in 200 I when
OK killed more people than any
other state.
Eighteen people,
including three women, were
executed by lethal injection during
200 I, only 10 at most are expected
to be put to death in 2002.

TX - In April 2001 a new law
went into effect allowing prisoners
to have DNA tests conducted to
prove their claims of innocence.
Within a few months Texas judges
and prosecutors were swamped
with requests for post conviction
DNA analysis tests. Some judges
and prosecutors are saying the
legislature made a bad mistake
because the new law allows
anyone - even if charged with a
misdemeanor - to ask for the test.
The new law directs prosecutors to
preserve biological evidence and

Perspectives --;:============~

allows prisoners to obtain statepaid post conviction DNA testing
by showing that it could prove the
defendant's innocence. The law
also allows for' retesting of
material previously tested using
new techniques that have been
developed and that are more
.accurate.
Prisoners must also
show that the material to be tested
played a key role in their
conviction.
VT - During Nov. 2001 prison
'officials . in Vermont began
opening legal' mail between'
prisoners and their attorneys
allegedly to protect against anthrax
and other biological threats. The
mail
opening was stopped
approximately two wee~s later
when protested by the state
defender general's office and the
American Civil Liberties Union
citing that the policy could
interfere
with
attorney/client
privilege.
WA - In May 2001 the Kirkland
Police Dept. filed suit to shut down
a website posted by former
prisoner William Sheehan. The
site, www.justicefiles:org, lists the
names, home addresses and other
personal information on employees
of various Washington police
agencies. and the WA Department
of Corrections.
Seattle judge
Robert AIsdorf refused to order the
site shutdown, finding that the site
is constitutionally protected free
speech. Sheehan claims he has
been a victim of police harassment
and believes police should be held
.accountable.
.
[Source:
Prison Legal News,
12/01 ]

FIRST TRIAL STARTS
IN VALDES' MURDER
It took over 2 V2 years to begin, and almost
three months to select ajwy, but on Jan. 16,
2002, the trial of four Florida prison guards
accused of beating death-row prisoner
Frank Valdes to death on July 17, 1999,
finally started. The four guards, Capt
Timothy Thornton, 36; Sgt. Charles Brown,
28; Sgt. Jason Griffis, 28; and Sgt. Andrew
Lewis, 31, are charged with second degree
murder and aggravated battery. Four other
fonner FDOC guards .charged in the
incident will go on trial later this year. The
outcome of these trials are seen by prisoner
advocates as having a large influence over
whether rampant abuse of prisoners in
Florida continues and the verdict will be
provided in the next issue ofFPLP.
LEGISLATIVE UPDATE

During OcL-Dec. 2001, the Florida
Legislature met in a special session to
address wJlat some politicians claimed was
a budget crisis brought on by lower than
expected tax revenues. Relevant to the
Florida prison system. a revised budget for
the current fiscal year was passed cutting
the DOC's current budget $30 million. That
reduction comes out of the $1,711 million
that was approved for the 2001-02 fiscal
year during the 200 I legislative session.
Most of the $30 million cut' will be in
beneficial programs for prisoners. In Jan.,
2002, the FDOC deCided $13 million could
be saved by almost completely eliminating
substance abuse programs for prisoners.
Other cuts wee made in education and
vocational programs. In Jan., Gov. Jeb Bush
released his proposed budget for the 200203 fiscal year that would restore the $30
million to the DOC' and add $30 million
more for the upcoming fiscal year. Ifagreed
to by the legislature in the advanced regular
2002 session, that started in Jan., the FDOC
will receive $1,741 million next fiscal year.
Despite widespread rumors in the prison
system that the legislature is going to act to
reduce by releasing the prison popplation,
no such legislation has been introduced for
this years session. Gov. Bush stated in Jan.
that 85 percent sentencing will remain intact
and no legislation has been introduced to
benefit parole-t:ligible prisoners.
Complete covemge of this years'
legislation will be provided in a fumre
FPLP.

21------------~---

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL.Perspectrves - - - - . - - ; - - . . . . ; . . - - - - - - -

DATE RUN

DEPARTMENT OF CORRECTIONS
DEPARTMENT SUMMARY
INHATE WELFARE TRUST FUND
REVENUES AND EXPENDITURES BY TYPE
FOR THE FISCAL YEAR ENDED
JUNE 30, Z001
REVENUES
MERCHANDISE SALES
VENDING MACHINE CCMMISSIONS
TELEPHONE .CQMMISSIONS
PRIVATIZED CANTEEN COMMISSIONS
INTEREST EARNINGS
CONTRIBUTIONS/INMATE CLUB EARNINGS
INMATE BANK 'BALANCE LESS THAN $1
OTHER REVENUE

35,975,348.87
~60,924.13

15,286,142.86
.00
960,958.82
14,331.81
1,133.83
72,644.93

............•••.•...

TOTAL REVENUES

$

52,671,485.25
lID:a4

OPERATING EXPENDITURES
COST Of SALES
r EMPLOYEE SALARIES
. SALARIES - OPERATORS
OPER. EXP.-CONTRACTUAL SERVICES
MATERIALS, SUPPLIES, AND EQUIPMENT
OPER. EXP.-DEPRECIATION
OTHER OPERATING COSTS

aa. it:iillua;az;r

22,715,573.23
2,210,891.19
239,482.27
108,647.68
2,261,296.13
369,327.50
30,554.35

...........•••......

TOTAL OPERATING EXPENDITURES

s

DIRECT BENEfIT PROGRAMS
EDUCATION
DRUG ABUSE SERVICES
LIBRARY
RELIGION
VISITING PROGRAMS
LEGAL SERVICES
INMATE CLUB ACTIVITIES
OTHER I~TE ACTIVITIES ,
TOTAL DIRECT BENEFIT EXPENDITURES

08/3~/Ol

27,935,772.35

.........•..•••......
18,361,758.36
4,388,197.19
Z,434,997.6r
2,595,792.81
31,258.35
.00
25,284_76
37,077.10

...........•••.••...
S

OTHER NON-OP EXPENDITURES
EXPEND.-fIXED CAPITAL OUTLAY
TRANSfERS OUT VITHIN THE AGENCY
GENERAL REVENUE SERVICE CHARGE
OTHER NON-OPERATING EXPENSES

27,874,366.24

.............•......
100.00
.00
1,944,873.77

.OQ

.•..................

TOTAL OTHER NON-OPERATING EXPENDITU

$

TOTAL EXPENDITURES

S

1,944,973.77

....•...•..•........
57,755,"2.36
_11111:1111-'-11_

22---~---------_

FLORIDA PRISON LEGAL

-------

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(jJ" Please make all checks or money orders payable to: Florida Prisoners' Legal Aid Organization, Inc. Please complete the above form and send
it with the indicated membership dues or subscription amount to: Florida Prisoners' Legal Aid Organization/nc., P.O. Box 660-387, Chllillota,
FL 32766. For family members or loved ones of Florida prisoners who are unable to afford the basic membership dues, any contribution is
acceptable for membership. New, unused , US postage stamps are acceptable from prisoners for membership dues.

:dt~

Prisoners: Have a free copy of FPLP sent to a family
\'Mlmber or friend on the outside. Simply sen~ us their
name and address on this form. PLEASE PRINT.

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FLORIDA PRISON LEGAL PERSPECTIVES
P.O. Box 660-387, Chuluota, FL 32766

State
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23

Zip

ADVERTISING NOTIC-E

VlSITATION COMPLAINTS

CONTACTS

Due to a concern for our members, the FPLP staff
tries to ensure that advertisers in these pages are
reputable and qualified to provide the services being
offered. We cannot meel every advenisef. however,
so members lIJ'C advised to always personally contact
advcniscrs - for funher infonnation on their
qualifications and experience before making a
decision to hire an attorney or other professional
service provider. You should never send legal or
other documents to an advertiser before contacting
Ihem and receiving directions to send such material.
For those wishing to advertise in FPLP, please write
for rate infonnation. Address such mail to:

E\U}' year hundreds of family manbcrs and mends of Florida
pri$oncrs cxpcrictICC problems in vislting their inc.ucemtcd
loved oncs. Wlu1c paying lip scrvic:c to !he fuct IMt
~ of funtily tics is impo-nnnt Md should be

The Florida Corrections Commiuian is c:am:poscd of eight
citizens sel«red by I~ go\'UnOf fo ownee lttc opention of
the Aorida Dc:p;utntent of Corrections. The _Commission
mnkes recommendations 10 the governOT and state legisl4run:

encouraged, in reality, muny FDOC prison gu:uds and
arlministtarOT'S resent or fecl1hrcatc=d by prisoners who have

concerning prohlem 0IC3S widUn dte prison system. The
Co-mmission wclCQmes input from !he public identifying
problem areas. The Commission's aaivifics eM be: found on
its website. The Commission is ~I &em the moe.

an outside suppon system. It is not uncommon for those type
prison employees 10 work to vex, htlr3ss. :met aeate
urmec:cssaJY roadbIoc:b to impede or make YisitDtion as
WICOmfortable as possible.
Visitcrs who experiencc problems with visitation that they
are unable to mclve al the tnstitutioml 1e\~1 sJwuld file II
complaint with Itle roUowing FDOC dqlmtments in
Tallahassee:
Fa.wt/y Ombudsman
Toll Free: 1-88lJ·j5S.fHSS

Florida Prison Legal Perspectives
Attn: Advertising
.
P.O. Box. 660-387 .
Chuluota, FL 32766

Florida Correctiom Commission
2601 Blair Stone Road
Talklhassee, FL 32399-2500
Phil. (850) 413·9330
Email: fcorcom@maildc.stateJl.w
Website: hltp:/lWl.vlIJJcc.stateJl.usI

Central Vi.fltatum AUlhoNty

Toll Free: 1-877-822·/987

Additional:

Address for bOth:
260/ B/air Stone Road

Or

Email: FPLP@aotcom

InmaJe Bank Informal/on
Toll Free: (850) 488-6866

TallahaueC'. FL 11199·1500

If those two dcpnrtments arc unable

Of

Email Addresses:

unwilling to resolve

the proltlcm, th= nc:xI srep "-ou.Id be cont!CtiJJg yaur Iotal
slate n:prcscntDtivc' or state SCftlItor and Rqucsting their
ossUtmtc:e resolve the problem. Where lin: prohlem affce:ts
m3I!)' visiron nI a specific institurion. I.hc p-cmor's office
should a150 be asked fOT :assistance.

SUBMISSION OF MATERIAL TO

FPLP
Bec:uuse of the large volume of mnil being
.financinl considerations. and the:
inability to provide individual legal assismnce.
me:mhers should nol send copies of leglll
docwnenlS of pending or potential ~ 10
FPI.P without having first contacted the staff
and receiving directions to send same. Neither
FPLP. nor its staff, are responsible for an)'
unsolicited material senl. .
Members are requested to continue sending
news information, newspaper clippings (please
include name of paper and date).
memorandums, photocopies of final. decisions
in unpublished cases. and potential anic1es for
publication. Please send only copies of such
matc:riallhat do nol have to be returned. FPLP
depends on YOU. its readers and members to
keep informed. Thank you for your
cooperation and participation in helping to get
the news out Your efforts arc greatly
appreciated.
~ved.

Gov. Jeb Bush - jeb.blUh@myflorida.com

to

Michael Moore. FDOC moore.michael@mai/.dc.sIQleJl.us

FLORI~PRISONLEGALPersp_ec_t_iv_e_s~~~~~~~~~~~~~_
rJ!=~=MEIvfB~~E=RS=HIP~~/S=UB~SC=RIPTI~~ON~RENE=~W~AL~~s.. FLORIDA
PRISON
Please check your mailing-label to detenrline yo~r term of
membership and/or last month of subsoription to FPLP. On
the top line of the mamng label- will I:le a date, such as
·-*NovQ4-**. That date indicates the last month and year
of your curmnt membership with FPLAO or subscription to
FPLP. Please take the time to complete the enclosed form
to renew your membership and/or subscription before the
expiration date.
.
Moving? Transferred? If so, please complete the
enclosed address change form so that the membership
rolls and mailing list can be updated.-Thank your
Volume 8. Issue 1 JanlFeb 2002
me

LEGAL

Perspectives
P.O. Box 660·387

Chuluota. FL 32766

NON-PROFIT
U.s. POSTAGE

PAID
OVIEDO, FL
PERMIT NO. 65