FLORIDA PRISON LEGAL

ers 'ectives
VOLUME 14 ISSUE 1

ISSN# 1091-8094

JAN/FEB 2008

oaths, dress codes and mandatory fitness requirements for
FDOC's 28,000 employees. He repeatedly, clashed with a
prison culture that is deeply entrenched with corruption.
Yet, he made significant strides in cleaning the system up.
or in at least putting a~use and corruption in remission,
while he was in charge.
TALLAHASSEE- On January 9, 2008, witho~t warning,.
. McDonough's clean-up offended forces such as the
but not a total surprise, it was announced that James
Police Benevolent Association, the politi,Pally activeunion
McDonough was resigning as head of the Florida
that represents almost half 0f the departn\enfs prison
Department of Corrections (FDOC), effective at the end of
guards. The PBA's problem? McDono~gh's random drug
that month. A few days later, Gov. CharlieCrist appointed
testing, including steroid testing, and physical fitness
former Tallahassee Police Chief, and for the past yearrequireme.nts for employees. The PBA claimed that such
secretary of the Department of Juveniie Justice-Walter
policies hurt morale. McDonough countered that it was his
McNeil to replace McDonough.
intent to boost confidence, integrity, and professionalism
James McDonouih, 61, a retired Army colonel, West . in the majority ofFDOC workers.
Point graduate, Vietnam combat veteran, recipient of three
Last June McDonough told The Associated Press,that
Bronze Stars and a Purple Heart, and former drug-policy
he had mostly accomplished what he :was brought in to do.
czar in Florida, was appointed by then-Gov. Jeb Bush in
While there may still be intermittent wrongdoing by some
2006 as FDOC secretary after his predecessor, James V.
employees, the institutionalized lawlessness at 'top levels
Crosby, was indicted for corruption and following a string
of the department had been \,Veeded out, he said.
of scandals that exposed widespread corruption in ·the
There was no hesitation from McDonough in tackling
FDOC. McDonough quickly showed that he was the right
other forms of corrUption affecting prisoners and their
man for the job.
families. ,Knowing that his predecessor, James Crosby,
McDonough brought a tough, no-nonsense, militaryhad been sent to federal prison with an eight-year sentence
style approacn to the department. He quickly let FDOC'
for takiog kickbacks from a private vender who' was
employees know that while he was in charge that there
operating the, prison visiting park canteens and charging
would be zero tolerance for cotruption and abuse of
visiting families exorbitant costs for food and drinks,
prisoners.
McDonough examined all of the FDOC's contracts with
McDonough fired. or demoted dozens of prison
private companies.
officials, some of them wardens and other top
In short order, new controcts were demanded by
administrators. He instituted random drug tests, loyalty
McDonough for the visiting parks and prisoner canteen

McDonough ·Resigns,
New FDOC Secretary
Takes Over

PAMlLll!SAIMlCA11!S~
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11,.. ._~_s_ID_E.....,

Civil Rights Restoration Slow Going
Florida Gets Sixth Private Prison
From the, editor
FDOC Prisoner Investigation Procedure
Notable Cases
Post Conviction Comer
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Florida 'Prison Legal Perspectives
FLORIDA PRISON
:LEGAL,P.ERSPECTIVES
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operations, resulting in the private vendor, Keefe
Commissary Network, having to reduce costs to Ii more
reasonable level and stock better quality products in July
2007.
When McDonough learned that excessive fees were
aiso being charged whenever money was placed into or·
spent out of prisoners' canteen bank accounts, he cut the
fees down and eliminated them totally for prisoners who
are hono",bly discharged military veterans.
McDonough was stunned when he learned' how .
prisoners' families and friends were being robbed by the
FDOC and MCI WorldCom over rates to accept collect
phone calls from their incarcerated loved ones. Fifteen
minute in-state calls were costing over $5 and out-of-state
phone calls were averaging almost $20 for the same
amount of time under the monopolistic system. Almost
immediately McDonough cut the costs by reducing the
amount of commission that FDOC would receive from the
phone service contractor. And recently the contract w~s
given to another company that has reduced the rates for .
prisoners' families and friends to under $2 for·each fifteen
minute collect in.:state or out-of-state phone call. This
change alone will have a tremendous benefit in helping
families maintain relationships during incarceration, a
proven way of reducing recidivism.
McDonough, who fought in two wars and who served
27 years on active duty in the Anny, also realized that an.
important component ·of supervising large groups of
people is supplying decent· food. For several years the
majority of Florida prisoners had been suffering under a
private contract given to Aramark Corporation to feed the
prison population. Under Aramark, food quality dropped
greatly and food service sanitation became a joke at many
institutions~ with outbreaks of food poisoning becoming a
fairly common problem in the prisons. McDonough took
steps to correct that. and on October I, 2007, Aramark
was replaced by Trinity Food Service. The result has been
better quality and prepared food and better sanitation.
Rehabilitation also ,concerned McDonough, and he
tried to bring a renewed focUs to education, vocational and
drug treatment programs for prisoners. In recent years all
such programs have been slashed' in the Florida prison
system in favor of building more and more prisons and
simply warehousing prisoners until their eventual release ,
back' into the community, often'in worse shape than when
they entered prison.
Ninety percent of th~ state's 95,000 prisoners will be
released at some point, Mcponough knew, and he
believed that preparing them for life in the real world
made good ethical and business sense: McDonough made
it clear that he intended to place more emphasis on mental
health· treatment and vocational 'training, especially on
efforts to prepare prisoners to obtain' construction job~
when released. He was reported as saying that stich efforts
would payoff in the long run by reducing recidivism'rates
significantly. State lawmakers, however, nixed those

Florida Priso~ Legal Penpectives
plans. claiming a budget shortfall of $1 ,billion will mean
less money for corrections, not more. except for funding
new prisons. When McDonough said that in that case he
could still work within the budget and implement his
plans. it was met with silence from legislators.
Even more silence came when in October 2007
McDonough sent a letter to several key state lawmakers
and the governor's office asking them to consider turning
PRIDE over to the FDOC to run. PRIDE. the abbreviation
for Prison Rehabilitative Industries and Diversified
Enterprise. was formed by the Legislature in 1981 as a
public-private nonprofit corporation to take over and
operate industries in the prison system using prisoner
workers. The Legislature intended that PRIDE would
provide work training programs. reduce the cost of state
government and stimulate a real-world working
environment.
Instead, PRIDE is viewed as little more than sweatshop labor among prisoners who can make up to $.55 an
hour doing work that pays 20 times that, or more, on the
outside of prison. Though billed as a nonprofit, PRIDE
rakes in millions in "nonprofit" every year that is not.used'
to create more industries or 'to provide more work
opportunities for prisoners. Instead of growing, PRIDE
employs only about 2.5 percent of Florida's approximately
95.000 state prisoners. And while the prison population
has increased ·.over the past decade, there has i>eena 40
percent decline in prisoner employment by PRIDE.
Over the years PRIDE has regularly been involved in
financial scandals, most recently in 2004 when. it was
discovered that top PRIDE officials had 'siphoned millions
out.of the corporation to create other companies in which
they had personal interests. PRIDE came close to
bankruptcy from.that malfeasance.
Citing those, .and other failures. McDonough argued
that the FDOC could do a better job fulfilling the mission
that PRIDE was given. mainly giving prisoners
meaningful vocational training to prepare them to survive
and remain out once released from prison.
PRID~ officials responded to McDonough's suggestion
by claiming that FDOC leadership has failed to support
P~E by not buying the products that the corporation
makes and pointing out that FDOC has had its- own
financial and leadership problems in recent years.
Regafdless, the silence from lawmakers and Gov. Crist
following that politically-sensitive suggestion by
McDon9ugh was ominous.
Although research can find no prior support for it, it is
claimed that when Gov. Charlie Crist took office in 2007,
be asked' McDonough to stay .on, and at that time.
McDonough said he would stay for
months. But in
August, the story goes, Crist ask him to remain throu8h
the rest
year, to which McDonough agreed.
.
Perhaps tellingly.McDonough. wllo was never shy
about his actions and future plans for the FDOC with the

six

orth&t

Florida Prison 'Legal Penpeetives
A lobbyist for the Police Benevolent Association,
David Murrell, said that McNeil will be a breath of fresh
nir. Apparently the PBA hopes McNeil will be more open'
to PBA concerns and pressure than McDonough was.
As long as McNeil doesn't allow career employees in
the FDOC's central office to phlce him in a box'where
they control what information gets to him or manipulate
him with their "experience" of what's right for the system
or prisoners, then he 'should do okay. He does have a
bachelor's degree from the University of Southern
.Mississippi and St. Johns University in Louisianna.
[Note: The FPLAO directors and staff wish Jim
McDonough the best in whatever he' moves on to. He did
~ore for the FDOC, prisoners and their families in his
short tenure than any other FDOC secretary in its long
history. We also welc~me Mr. McNeil to the post and look
forward to working with and supporting him in the
tremc:ndous job that he has taken on. Like we did with Mr.
McDonough, we are pleased to grant Mr. McNeil
honorary membership with FPLAO and will ensure that he
is sent all issues of FPLP as they are pu~Jished. Sincerely,
Teresa Bums Posey, FPLAO Chairwoman.]

4

McDonough Joins
NY Foundation

I

~ mid-February it was reported in The Gainesville Sun that
former FDOC secretary, Jim McDonough, had accepted a
position with a foundation based in New York City that
promotes criminal justice reform.
After resigning as head of the Florida Department of
Corrections, McDonough was named fS a senior fellow for the
JEHT Foun~ation, .the acronYm stands for justice, equality,
human·dignity and tolerance; .
.
Created in 2000, .the foundation has given giants totaling
over $1 million to projects in Florida, including projects
promoting juvenile justice reform and addressing the mental
health needs of people caught up in the criminal justice system.
In an exclusive interview with CNN, McDonough,.a native
of Brooklyn, NY, also revealed more information about the
corruption that lead to him being picked to clean up ,the FDOC
almost two years ago. "It reminded me of the petty mafia 1saw
on the streets of Brooklyn when 1 was growing up in the late
1950s, early 1960s - petty, small-minded, thuggish, violent,
dangerous, .outside the' law, and completely intolerable for a
society such ours'in the United States of America," he said.
For more information about the previous corruption within
the FDOC, including video and photographs, check out "ExFlorida prison' boss: Drunken orgies tainted system" on
www.cnn.com._ .

Florida Prison Legal Penpectives

David W. Collins, Attorney at Law
Former state prosecutor with more than 20 years ofcriminal law experience
"AV" rated by Martindale:'Hubbell Bar register of Preeminent Lawyers
Your voice in Tallahassee representing prisoners in all areas of post-conviction relief:
Appeals
Plea Bargain Rights
3.800 Motions
Sentencing and Scoresheet Errors
'3.850 Motions
Green, Tripp, Karchesky, Heggs cases
State and Federal Habeas Corpus
Jail-time Credit Issues
Gain-time Eligibility Issues
Writs of Mandamus
,Habitualization Issues
Clemency
Probation Revocation ~sues
Write me today about your case!

\

David W. Collins, Esquire
P.O. Box 541
Monticello, FL 32345
(850) 997-8111
"The hiring of a lawyer is ,an important decision that should not be based solely upon advertisements. Before you decide,
ask me to send you free written information about my qualifications and experience.';

Florida Prison Legal Penpectives '
The commission says it is processing about 7,000 cases
a month, The departinent says it is releasing abput 3,000
people a month from prison. At that rate it will still take
many years to resolve the backlog of cases.
Then there are other problems. The Department of
ix months after Gov. Charlie Crist and the state
Corrections
is required to do an initial screening of all
Cabinet, acting ~ the Clemency Board, changed the
people
who
have be~n released from prison who are
clemency rules to make it· easier for most ex-felons to .
eligible
for
automatic
rights restoration and send the list to
regain their civil rights, the system remained clogged with
the
Parole
Commission.
The commission then is suppose
a b~ckJo~ of over one hundred thousand cases awaiting
.
to
detennine
each
ex:.prisoner's
eligibility' under the new
review and processing. .
rules
and
make
recommendations
to the Clemency Board,
Reportedly, incompetence's with one or both of the
for
automatic
restoration,
hold
pending restitution
state agencies that screen ex-felons for rights restoration, '
payment,
hearing,
etc.
the Department of Corrections and the Parole
However, the Parole Commission recently complained
Commission, are behind the delay with the agencies
~at
as many as one-third of the cases on the DOC's lists
disagreeing over which prisoners and ex-felons qualify for
shouldn't
be there. Yet, when the DOC sought clarification
review. _
from
the
commission
as to why it thought cases shouldn't
"This just highlights the ~hortcomings of these new
be
on
the
lists,
it
couldn't
get a meaningful response, .
rules," said Muslima Lewis, and attorney with the ACLU
"I
do
not
understand
your
error rate of 28.8%," FDOC
and director of the Florida Rights Restoration Coalition. .
an email to the Parole
staffer
Tina
Hayes
wrote
in
''They're so cumbersome, so bureaucratic and so prone to
Commission.
Over
two
weeks
later
she was still Dying to
hum!U1 error that some of the efficiencies we hoped for are
in
a
follow-up
email,
"If
the error rate is going
get
answers
not going to be seen."
up·
as
stated
then
this
is
the
more
reason
I need the error
Between Apri~ S, 2007, when the rules were changed'to
Hopefully,
Ms. Hayes
messages"
to
explain
the
mistakes..
allow many non-violent ex-felons to have their rights
in
Dying
to get a
had
better
luck
than
most
people
restored without going through a drawn-out clemency
competent
and
straight
response
from
the
Parole
process, approximately 17,000 prisoners· were released
Commission.
from state prison. Almost half that number automatically
regained their right to vote, run for office, serve on a jury
[Editor's Note: The Parole Commission is at it again.
and apply for dozens ofstate-issued licenses.
1983 when .parole-eligible sentencing' was
Since
However, other ex-prisoners,' who did time for more
essentially
abolished for most crimes in Florida and the
serious crimes, from aggravated stalking, to manslaughter,
commission
was scheduied to be abolished as an agency,
must still undergo an investigation and ultimately be
to
prevent
its demise the commission has collected
approved by the Governor and Cabinet 'Those with
job
that have nothing to do with parole in order
additional
murder or sex offense convictions must undergo full
to make it harder to get rid of the agency, such as making
investigations and h~ngs before the Clemency Board to
conditional and medical release detenninations. doing
seek rights restoration. And, under the new rules, no one
clemency
investigations, etc:.
. '
will have their rights restored, automatically or otlterwise,
The commission, running' scared after recent, almost
until any restitution that .may be owed has been paid. And
successful,
attempts by the state House of Representatives
in that last lies one significant roadblock, some say.
th~ agency, is now trying to get itself a
.
to
finally
dissolve
Randall Berg, an attorney with the Florida Justice
job-parole
authoritY over juvenile offenders.
"new"
Institute, says the restitution requirement is a Catch-22
In
January
2008
a bill was filed' ih the Florida,
that . prevents ex-felons from becoming productive
legislature
entitled
the
"Children in Prison Rehabilitation
citizens. "If you can't get your ctvil rights restored, you
Act." Allegedly, a team at Florida State University drafted
can't get a job. And if you can't payoff the restitution, you
the bill in respon~lo a' growing body of research that
can't.get your civil rights restored," Berg said. "In essence,
show
children are more amendable to treatment and less
nothmg has really changed."
likely
to understand the consequences of their actions than
The Parole Commission, an a~hronistic agency that
.~~
has repeatedly survived efforts by legislators to abolish it,
. The bill would give the Parole Commission parole
claims that between 'April and October 2007 34,444 exauthority
over people who were.l6-years-Old or younger
felons ~ad their rights restored' under the ·new rules, more
oftheir offense, including those who received a
at
the
time
than in any other six~month period.
.
life
sentence,
with some exceptions.
Yet, for mariy thousands of fonner prisoners, lJIany
of
course, is being backed by (and probably
'The
bill,
released froD) prison years ago, the wait continues. The
was
inspired
by)
the Parole Commission and some state
Department of Corrections· says there are 298,000 exsenators
who
support
the' commission; ,
.
prisoners eligible for, but who have not been reviewed,
6
under the new rules.
,

Civil Rights Restoration
Slow Going

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, Florida Prison Legal Perspectives
While at first glance, the bill would appear to be a
cOmpassionate effort to save youngsters who just made a
bad mistake in their lives.
In reality, the bill would sentence such children to a life
of misery, manipulation and recidivism under a Parole
Commission that 'cares nothing about rehabilitation or
people, as long as it can continue 'to exist and the
bloodsuckers who work for the agency can continue to
suck the public's tit.
'
If this bill becomes law this year, the commission will
feel safe that its future is secure for several more decades
with new, young victims who it will never let go from its
control until they die ~ Bob Posey.]

Overruling Rainey
by Richard Geffken
The U.S. Eleventh Circuit Court of Appeals recently
overturned two prior decisions in Fe"eira v. Secretary,
DOC, 20 Fla. Law Weekly Fed. C943 (11 1h Cir. Aug. 7,
2007). The two cases struck down were Rainey v:
Secretary. DOC, 443 F.3d 1323 (11 1h Cir. 2006) and
Ferreira v. Secretary, DOC;'183 F. App'x. 885 (ll Ch Cir.
.
2006).
The court's action was compelled by the per curiam
decision reached in Burton v. Stewart, 127 S.Ct. 793
(2007).
.
The important issue in these, cases 'concerned the'
finality which commences the AEDPA one-year statute of
limitations period. The Eleventh Circuit initially .was
among those circuits which had held that any resentencing
began a new one-year period in which federal habeas
corpus relief could be sought from criminal convictions
and sentences. However, confronted with criticism, in
Rainey and its first Ferreira decision, the Eleventh CirCuit
had retreated into a position where a federally co~izable
resentenCing claim was required or nothing would be
heard.
Burton held that there is no separation between
judgment and sentence. Quoting Berman v. U.S., 58 S.Ct:
164; the high court ruled that has been the law,since 1937,
stating, "Final. judgment ,in a criminal case means
sentence. The sentence is tI1ejudgment." Burton. supra at
798. Th~, this was not a new rule of law and any case
holding differently was simply incorrectly decided.
In future,it appears any federal claim not procedurally
barred sh~uld be cognizable on a §2254 application flied
within a one-year AEDPA limitations period following a
new sentencing.
The above noted cases should be carefully read by
those prisoners assisting others with federal habeas corpus
litigation and by those prisoners proceeding on their own
in resentencing situations. _

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P.O. BB 386

QuIncy, FI.orida 32353
• Oteck with your c1asslflcatlon olflcer and the
FOOC centflll office Ilrst. U you stlll hllVc
questions, Wrlte II letter with II brief e>qIlanation
of your lituation and typo of asslstllnce
requested, ondOIC a $10 811ll11ment fee for a
response. We are not attorneyl, and therefore
do not provlde legal counsel or representation,
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Florida Prison Lega,1 Pe~pectives
"It's epic," said City Manager Eugene Adams of the
I,SOO-prisoner prison, which, already has a 384-bed
expansion planned by the Legislature.
"It's a life-saver," commented Mayor Charles Holman.
"It
means so much to have these jobs." With 314
e always opposed the death penalty, even when as a
employees,
199 of them prison guards, the prison is
Florida prison warden he oversaw executions, said
expected
to
be an economic, boon' for the rural area.
'.
Dennis O'Neill.
Gracevill~
al~y
has. ~ ~69-manstate prison work camp
Now that he's retired from the prison system and is an
and
two
Juvemle
faclhtles, but the new, big privatelyEpiscopal priest in Starke, Florida, O'Neill says he was
operated
prison
will
,double the prison job rolls in t he
always able to !leparate his prison warden job supervising ,
area.
executions from other parts of his life. "I was, able to
Warden Bill Willingham said Graceville will offer
compartmentalize.,-;.psy~hologically" ' emotionally"':"the,
guards
$12.10 an hour to start, and $1,450 in education
responsibility I had' to efficiently kill another human
expenses
to get certified with the FDLE as correctional
being," he said. .
'
which
they will have a year to do. Then their
officers,
O'Neill was an assistant warden for ~o years at
salaries
will
go
to $30,630 a year, which· is about- 10
Florida State Prison and warden for seven years at Union
percent
lower
than
the average starting prison guard salary
Correctional Institution, both of which house Death Row
in
the
Department
of
Corrections.
'
prisoners. He took part in two executions where he was
The
Graceville
prison
is
being
operated
by
GEO
responsible for everything except pulling the switch on the
G~oup,
In.c.,
formerly
Wackenhut
Corrections
Corp.,
a
electric chair, he says.
'
pnvate
pnson
company,
under
a
-three-year,
$61
million
He also recalls one time when he questioned his
.contract with the state.
.
involvement in the prison system. He had read a paper by
Private
prisons
.in
Florida
are
required
to
operate
at
a UF researcher who reported that Florida had never
least
7-percent
cheaper
than
state-operated
prisons.
executed a white person for; killing a bl!lck person. "This
Gr:aceville's baseline $42.74 per day rate is $9.33 per
was like someone picked up; ..a telephone pole and hit me
prIsoner lower than the daily average cost of the
square over the head," he said. "The only conclusions the
Department of Corrections.
pure, across-the-board systematic racism of the criminal
~rit~cs argue that private prisons operate cheaper by
justice system."
,
scnmpmg
on pay and benefits, or cutting comers on,
He also took part in helping victim's families during,
staffing levels, health care and prisoner education
executions later in his career. He says that he found that
programs. A 1999 comparison review by a legislative
executions didn't really provide any closure for families.
office
did find that private-run prisons did offer lower
"For the most part there was ,an emotional deadness-and
employee
health-care and pension benefits than DOC.
that did not change.when the execution was over," he said.
Graceville
becomes the sixth private prison in Florida.
O'Neill left the prison system in 200 I, and has now
it
was
opened, the five other private prisons had
Before
been a priest at S1. Mark's Episcopal Church for fouli
6,244 prisoners.
years.
GEO also operates prisons at Moore Haven and South
He doesn't make his opposition to the death penalty a
Bay
in. South Florida. A rival private prison company,
major part of his work there, 'butfeels that his stance is
Correct10ns
Corp. of America, has prisons in North
consistent with his faith and shares his views whenever
Florida's
Bay
and Gadsden counties and near Lake City.
asked to speak on the subject., '
,"
'
Together,
the
two companies have a dozen lobbyist
Now O'Neill tells his Ii~teners, that, "When God says
registered
to
promote
their interests in Tallahassee.
thou shalt not kill, that's the end ofthe story." '

F9rmer FDOC, Warden
Denounces Death Penalty

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{Source: Gainesville Sun] _

'

rSource: TaJ/QhQ.uee Democroll •

CRIMINONQ)
(An inmate education organization)

Stuck in the "system?" Took a

Florida Gets Sixth
. Private Prison

wrODg tum? Need a change? Write

he 'People who live in and arpund the small town of
Graceville, located in the Florid panhandle, were
ecstatic this past September as the state opened its biggest
for.profit prison there.
8

CriminOD Florida - FPLPS
P.O. Box 7727 Clearwater, FL
33758

T

and ask for the free "The Way to
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~Iorida P~.son

Legal Perspectives

NEW'
IN •., '
........•·S'"BRIEF
CA- On November 27. 2007. a
federal
judge
reversed
the
convictions of three correctional
officers who had 'been convicted of
abusing 'shackled prisoners and
covering up the event. The incident
took place while two prisoners from
the California Institution For:,Men in
Chino were being transported to a
segregation unit.
FL- Manatee' County investigatorS
say they have arrested a man in
connection with a 2004 murder
which waS displayed in cold ,case
playing cards distributed to FDOC
prisoners this year. The man was'
arrested on November 6. 2007, and
charged with the murder of Ingrid
Lugo. Authorities say Bryan Curry.
36, while serving time in Cross City
Correctional Institution. gave details
about the murder to another prisorier
that only the kjUer would know. This
prisoner in tum reported the crime.
Authorities didn't release the name of
the informant.
I

FL- A man being held in the MonrQe
County Detention Center, died at a
Florida
Keys
hospital
after
complaining of· chest pains. James
Pressler. 64, was charged, with a
murder that took place in 1976 in NY
and was awaiting extradition., He
died on November 11.2007.
FL- On November 14, 2007, Craig
Francis Hall, 58, who was a
Gainesville attorney, entered. a guilty
t~
possessing
child
plea
pornography. The sentencing hearing
was'set for Feb. 7, 2007. before a
U.S. District Court. Hall faces a
maximum of 10 years in federal
prison. Hall was arrested after being
transmitting
child
discovered
pornography .by the North Florida
Internet Crimes Against· Children
Task Force. Officials found child

pornography on CDs at his law
office.
FL- Ralph·L. Flowers, aformer~.St.
Lucie County judge, filed a lawsuit
against the city of Stuart; the Martin
County Sheriff, Bob Crowder; and
others on November 9, 2007. The
suit claims that two members, of the
S~art Police Departm~nt unlawfully
arrested his son, Michael Thomas
Flowe.rs. on November 8. 2005. and
assaulted. battered.tasered. and used.
excessive force against him. Flow~rs.
39, at the time, hanged himself. in a
medical unit cell two days after his
arrest in.the Martin County Jail.
FL-· .The former Broward .County
Sheriff, Ken Jenne,. 60, was
sentenced to a ,year and a day in
federal prison on November 16,
2007. The ·,former sheriff was
convicted on charges of tax evaSion
and .mail fraud. Jenne was also, a'
former. state prosecutor, county
commissioner, and a member of the
Florida Senate for 20 ·years.
FL- A correctional officer was
treated for, minor 'cuts after a
Broward County Jail inmate attacked
the officer. Official say that Semil
Alcena made a fake bomb threat.
attacked. the officer with a makeshift.
pick, and sprayed the officer's p.epper .
foam at him. The incident took place
on November 20, 2007.
.
FL- A' tornado demolished one of
two minimum security· annex
buildings the Paso County Jail on
December 16, 2007. Officials say
that while the jail buil~ing. was
destroyed. no inmates were injured
because they had been ,evacuated.into
the main jail before the tornado hit. .
FL- Eleven people, including .nine
'who worked at Coleman Federal
Penitentiary located in Lake County,

were charged in Jan. '08 with taking
bribes to bring contraband into
prison, and having sex with 'a
pr~soner;
Federal
pros~utOrs
announced'the case. All nine prison
workers were either fired. suspended.'
or allowed to resign.' said .a BOP
spokeswoman.
FL- During Nov. '07, Dennis
Humphrey, a . prison guard at Polk
Correctional Institution. was arrested
and charged with, child molestation.
The following day it was reported
that another FDOC prison guard.
Randall Waters, ail employee at
.Hamilton Correction Institution had
also been" arrested for flashing
children. Waters' flashing allegedly
occurred wh.ile he was dressed in
drag, sporting a woman's blon<1 wig
Ilnd makeup.
IL- On .November 18., 2007,
authorities made a brief statement
that Carl Renfrow, 34, had been
charged with attempted escape and
criminal. damage to state supported
property. Officials say that Renfrow
,tried to escape from the Madison
County Jail by using a metal disk off
a shower wall to tunnel under the jail
wall.,·

lL;; .' Two Quiency County Jail
inmates escaped on December 15,
2007 after overpowering guards. One
of them" Richard Carr, 40, was
,arrested the next day after a sheriffs
department ~~am stormed a house
,where Carr hid. The second inmate,
Jose' Olmeda, 32, was still on the

run.
IN- Police arrested, Joseph Midyette,
48, after pulling him over for
suspicion· of driving under the
influence on December 18, 2007.
Midyette had escaped from a North
Carolina prison in 1988 while
serving a 60-year sentence. Officials 9·

Florida Prison Legal Penpeetives
exonerated after serving 15 years for
rape. He seeks $16.5 million in the
lawsuit.filed during the third week of
December, 2007. The county
wouldn't comment on the amount it
offered Bromgafd to'settle the suit.

say that Midyette. who was under the
name of Bruce Youngs when
stopped, had married ~d started a
demolition business since his escape.
, IN- During Jan. '08, David Scott, 39,
was exonerated and released from
prison after having more than two
decades of life stolen from him. Scott
was cleared in the beating death of.
an 89-year-old woman by DNA
evidence. Another man has now been
arrested fOf the crime.

NE- Timothy Clinkenbeard. 44. a
former county and state correctional'
officer. was .sentenced to a four to
five year senten~ on December 19.
2007. Clinkenbeard was convicted
for molesting a 12 year old girl over
the' course of a year. The former
guard plead no contest in :exchange
for having other charges dismissed. ,

MD- On December 20, 2007. two
prisoners, Brian Troxler.' 25. and
Donta Walker. 24; were convicted by
an Anne Arundel County jury for
attempted murder charges. The
charges took place at the now closed
Maryland House of Correction where'
the two prisoners stabbed two
correctional officers. Sentencing has
been scheduled for February.
MS- The DOC commissioner Chris
Bpps announced on November 19.
2007, that five new jails and one
extension are being build 'that would
add more than 1,500 ,beds which
could 'increase the number of beds to
4.600 in 16 regional jails across the
state. Officials plan to have these
projects completed by April 2009.
The estimated cost is over '$55
million.

NJ- On December 15. 2007. two

inmates. Jose Espinosa- 20. and Otis
Blunt- 32. escaped from the Union
County Jail. Officials, say that the
inmates broke. out of the jail by
removing cement blocks from two'
walls. and then squc;.ezed through the
opening. jumped to a roof, and "make
it over a 25-foot.high fence.
Gov. Jon Corzine signed
legislation on December 17. 2007,
that ended' capital punishment in
.New Jersey. Since the US Supreme
Court allowed states to restore the
death penalty in 1976, this is the first
state to end capital punishment by
legislation. The bill replaced capital
punishment with life without parole.
There were 11 people gn death row
in NJ at the time the legislation was
signed. one woman and ten men.
NJ-

MT- During 'the first week of
December 2007. DOC officials
released a statement that 74 state
prison workers had been disciplined. . NY-In Dec. '07 the American Civil
Liberties' UnioJ) released a report
The discipline ranged from 'verbal
warnings.
written
warnings. ' ~laiming a pattern of"gross medical
counseling and unpaid leave; one
abuse" at Ely State Prison, Nevada's
staff member resigned. This action
maximum-security prison. The report
called for a meeting with NY's
by DOC officials came after an
governor and prison director,
investigation concluded th~t said
workers had misusede-mails; In , Howard Skolnik. The report will be
some cases for inappropriate jokes
reviewed by the prison' system's
and in others for excessive personal
medical director, but until that's done
use.
'
"there's no need for a meeting at this'
time regarding an issue that I do not
think exists," said Skolnik.
MT- Ji~my Ray Bromgat:d filed a
lawsuit allegirig that his public
defender and the state crime lab did ' NY- On December 12, 2007, Leo
shoddy work. Bromgard was
Lewis, 60" was found guilty of
10

.

attempt~d murder and two weapons
charges in the', Sloatsburg Village
Court shooting that took, place in
May, 2007. Lewis smuggled a
,sawed-otl rifle into the courtroom
and fired one shot, which the
ricochet just missed the judge. The
small-town court had no metal
detectors. The jury found that Lewis
was trying to kill the' woman who
accused hi~ of groping her.

OH- In Jan. '08/0hio prison officials,
claiming a severe overcrowding
problem, said that statewide almost
50,0.00 prisoners are housed in 32 '
prisons that were designed to hold
about n,OOO.
OK- State inspectors released a
report of their finding on December
27, 2007. after a Creek County Jail
inmate filed a complaint against jail
officials. The, report found that
Russell Mounger was improperly
held in a restraint chair and was not
provided with proper medical, care.
As a result, Mounger's legs had to be
amputated due to an infection caused
by, blood clots. Jail officials claim
that Mounger was faking mental
health problems, said the report.
PR- A prisoner escaped during lunch
from El Zarzal Prison in Rio ,Grande
on December 23, 2007. Search teams
scoured eastern Puerto Rico trying to
capture, Jose' A. Sanchez Vega, 25.
Sanchez was serving a 14 -year
sentence when he escaped.
TN- As a result of an investigation
by the Bureau of Investigation, three
Bedford County Jail correctional
officers .were fired", and one
suspended on December 2, 2007.
, The investigation found that offic,ers
encouraged female inmates to put on
a bikini mock fashion show. While
the investigation found that there was
no physical contact, officers did take
pictures, and watched through
security windows and cameras.
TN- The DOC announced on
December 16, 2007. that it's paying

Florida Prison Legal Penpectives
the American Lung Association of
the state $10,000 to help prisoners
stop smoking. This came after a ban
in smoking that took effect on March
2007. The classes· will offer
medicated lozenges as part of the
program.
TX- A former Hidalgo County Jail
correctional officer, Jose' Armando
SancheZ, 29, plead guilty on
December 4, 2007, to trying to sell
.- &f about 100 pounds of marijuana to a
federal agent. Officials say that
Sanchez offered to sell the marijuana
for $16,000 to the undercover
officer. Sentencing has been set for
February 26, 2008. Sanchez faces up
to five years in prison.
TX- Finally, it was announced in
Jan. '08, that tens of thousands ofTX
prisoners are close to getting routine
access to telephones for the first
time. ,The TX Board of Criminal
JUstice approved new rules allowing
such access an~ the IDOC said they
are drawing up bid proposals for the
phone contract to .be let to .private
companies. Previously TX prisoners
were lucky to get one 5-minute
phone call every 3 ~onths.
Apparently, Texas is now more
interested in making money off
prisoners' families and friends who
accept collect prison calls than it is in
working to se~er family and friends
relationsHips with prisoners' by
restricting their communications.
VA- A prisoner who had escaped
from Dillwyn Correctional 'Center in
mid-November 2007" was captured
on December 5, 2007: Officials say
that Alonzo Logan ~as found in an
abandoned house about 55 miles
away from the prison. Logan was
serving a 45 year sentence prior to
his escape, including charges for a
previous escape.
VA- DOC says that steps are being
taken to' improve security at the
Lawrenceville Correctional· Facility
after a surprise search on December
27,2007. Officials found several cell

phones in tht: hand of prisoners. As a
result, trained dogs that can detect
cell .phones and other contraband
have been 'assigned to the prison,
said officials: _

virtualiy sitting on top of each other, the
few who can get in there that is. Which
only adds to the problem that the law
library consistently is open less than the 25
hours a week mandated by FDOC rules.
But that's a result of the staff Coffee and
cigarette breaks called "count times" that
From the editor.••
routinely take one and a half to two hours
several times each day.
It has been a while since I've had the
Self-help programs, like A.A. and N.A.,
time, space and ability to write this column
are a joke at Mayo, attended only because
and welcome members and readers to a
there are no other programs or to get out of
new issue of FPLP. There have been some
the extremely noisy, and in the summer
good reasons for that and most not within
time-hot, Close Management-designed
my control.
dormitories. Transition classes, which are
Briefly, in March· 2007. I was
transferred from Sumter CI to Mayo CI fof
supposed to help prisoners prepare for
no discernable reason. Okay, I thought, no
release, lack any substance at Mayo and
mostly consist of watching movies.
problem, I ·can deal wit.h the move; over'
the years I've traveled quite a bit within the
The only program of substance at Mayo
was the education department Operating
FDOC and at first blush Mayo CI didn't
wi~h almost no funding, in very limited
seem too bad, I've certainly dealt with
space, a group. of dedicated prisoner tutors
worse. Besides, with James McDonough
and one supervisor work magic. Last year
cleaning the FDOC's house, I reasoned,
more prisoners obtained' their GED at
most institutions had surely cleaned up
Mayo per student ration than at any other
their act and were going- by the book,
state prison. Truly amazing in that
especially a rinky-dink place like Mayo.
environment.
Wrong.
All together I was at Mayo a little over
I hadn't been at Mayo long before it
nine months. In January, with a stack of
beciune obvious that the FDOC's rules,. and
grievances pending in the FDOC central
state and fede~1 laws, were largely
office, I was transferred· to Union CI,
unknown and/or ignored
by the
where I am at this writing. The only good
administration and staff there. Prisoners
that I found at Mayo was among the
were routinely cursed at, called obscene
prisoners and with a coupfe of the staff. I
and humiliating names, threatened, and
met some good, solid people who became
had false disciplinary actions taken against
friends, and again saw some old friends,
them, ·if they dared to question or grieve
whicJtmade it worthwhile. I wish you all
such staffbehavior.
the best.
Nepotism was rife at Mayo. I have
Past members and readers will note
never seen so many family members
with this issue of FPLP that the mailing
working at one institution, all vying with
address has changed. Teresa recently
each other to be the nastiest. It waS nothing
moved up to the Blue Ridge Mountains in
for fathers and sons, mothers· and
North Carolina for family reasons, and the
daughters, husbands and wives, and
decision was made to move the mailing
.assorted in-laws, to be working on the
same shifts and in . supervisory positihns . part of the organization up there also for
efficiency. That's all that· has changed,
over one another. The result ~as an usthough. All other aspects· of the
against-them insularity, combined with
organization will remain active here in
rural ignorance and a lack of integrity,
Florida. Please note the new address.
leavit!g prisoners in a no-win situation no
If you haven't made a donation to
matter the abuse, wrongs or lies visited
upon them by staff.
FPL~o recently, and can t:o so, in any
Programs at Mayo CI were either nonamount, your support is needed and deeply
exiStent· or among the worst that I've ever
appreciated. And please encourage others
seen at any FDOC facility, except for one
to become a member of Your organization,
that I'll write about here shortly, Obviously
working for prisoners and their families
and friends. .
the money that has been budgeted to the
Sincerely, Bob Posey. _
library there has been diverted to other
non-prisoner-beneflt ~for several
years. The book collection is largely
garbage. The law library is stuffed into a
room the size of llJl ave~ge bedroom, with
prisoners trying to conduct research

11

Florida Prison Legal Penpectives
victim is punishable by up to 15
of a staff member. The protection
years in prison.
process outlined in subsection (d)
According to officials, Brown' above shall be· utilized for this
confronted his wife when she tried to
purpose. Paragraph (c) above shall
leave the home and gpabbed hc.r by
#
not apply. '
her jacket collar,causing her to fall
4) Any other reason when the
to the ground. The officer then sat on
facts indicate that the inmate must be
her stomach and slammed her head
removed from the general inmate
'
into the floor.,
population for the safety of any
In addition, Brown dragged the
inmate or group of inmates or for the
woman into a bedroom, saying he
security of the, institution.
was going to kill her. The victim was
able to lock herself in a bathroom,
Administrative
confinement
(hereinafter AC) is defined in 33where she sent a text massage to a
602.220(2)(a) as "a' temporary
friend, who in tum notified
authorities, said officials.
confinement status that may limit
The woman was listed in good
conditions and privileges as provided
in subsection (5) as a means of
condition on January 4, 2008,after
being taken to Munroe Regional
promoting the security, order and
Medical Center for evaluation. _
effective management of the
[Sources: The Ocala Star Banner; . institution. Otherwise the treatment
the Gainesville Sun]
.
of inmates
in
administrative
confinement shall be as near to that
of the general population as
'admini~trative
, assignment
to
confinement shall permit. Any
deviation shall be fully documented
,The FDOC Prisoner
as set forth ill the provisions of this
Investigation Procedure
rule."
by Melvin Perez
While this rule may sound good
to
many, we who have been there
his article' will, outline the
know
that this is merely wishful
prisoner investigation procedure,
thinking.
The beatings, gassing, and
dispel many notions prisoners 'have
atrocities
that
are carried out by some
concerning same, and point out
in
these
units have been well
guards
remedies a prisoner, can pursue
documented.
But
much more remains
should DOC officials fail to follow
,.
to be addressed.
their own rules governing prisoner
Rule
33-602.220(3)(e)'
provides
investigations.
that the investigating officer shall
Florida Administrative Code
(hereinafter
F.A.C.)
33- ' have the authority to request that the
senior 'correctional officer place the
602.220(3)(e)(1)-(4) provides a
in
administrative
prisoner •
number .of reasons for which a
confinement
for
this
reason.
in
prisoner can be ' placed
Further. when a decision is made
administrative confinement pending
to
place
a prisoner in AC; the reason
investigation. \These
are
the
for
such
placement shall be
following:
explained to the prisoner and the
prisoner shall be given an
I) Pending a~\ evaluation for
opportunity to present verbal
placement in close management.
comments on. the matter.' The
2) Special review against other
prisoner
shall also be allowed to
inmates,
disciplinary,
pr9gram
submit
a
written
statement. See: 33change or management transfer.
'602.220(a)(b}.
However.
this rarely
Transfers for this reason shall be
takes
place.
given priority.
Sub-section 220(2)(c) states that,
3} Pending an investigation into
the
Institutional Classification Team
allegations that the' inmate is in. fear

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T

FDOC Correctional
Officer Fired For .
Battering Pregnant Wife·

T

he spokeswoman for the FDOC,
Gretel Plessinger, announ~ed
during the first. week of January
2008, that a correctional officer, who
had been working at Lowell
Correctional Institution since .May
2006, was fired on January 4th, 2008
for battering his seven months
pregnant wife.
The officer, Arnold' Brown, 40,
was arrested· by the Marion County
Sheriff's deputies on January 3,2008
at his Ocala ho~e.
,Brown was
charged
with
aggravated domestic, battery. Under
Fla.
Stat.
ch.
784.045(1 )(b)~
aggravated· battery 01: a pregnant

12

~

Florida Prison Legal Penpectives
(hereinafter ICn shall review
prisoners in AC within 72 hours.
The only exception to being
reviewed within 12 hours is when the
ICT cannot complete its review
within the allotted timeframe due to a
holiday. If the review cannot be
completed with 12 hours. the action
of the senior correctional officer
shaU be reviewed within 72 hours by
the duty warden, documented on the
DC6-228o
Daily
Record
of
Segregation, and evaluated within
five days by the ICT.
Investigation Tim~ Frames
Under 33-602.220(3)(e) "the
length of time spent in this status
shall not exceed .15 working days
unless one 5 working day extension
is granted by the ICT. This extension
shall be documented on the Daily
Record of Segregation."
Keep in mind, that the ICT must
grant this extension. leT refers to the
team consisting of the warden or
assistant
warden,
classification
supervisor, a correctional officer
chief, and other members as
necessary when appointed by the
warden ~r designated b} rule. See:
33-602.220(1)(h).
After this first extension, if it is
necessary to continue the prisoner's
confinemel\t, written authorization
must be obtained frGm the state
classification office (hereinafter
Sea) for a 30 day extension. This,
authorization shall be attached to the
OC6-229. The SCO shall have the
authority to authorize one additional
30 day extension. See: 33602.220(3)(e).
SCO refers to a staff member at
the central office level who is
respon'sible for the review of prisoner
classification
decisions.
Duties
include approving or rejecting ICT
recommendations.
See:
33602.220( 1)(i)
If the prisoner remains in AC
after the 15 working day limitation
peri04. he or she should ask any ICT
member (via request or confinement
visits) if an extension beyond the 15
days limits was granted by the ICT.

If one' was granted, and the prisoner
remains in AC c~mfinement after the '
five days extension, the prisoner
should ask, if an extension beyond
the five days was granted by the
SCO."
,
, This can be done by submitting a
request to any ICT member <?r by
asking the AC officer or sergeant
since the DC6-229, is at the AC unit
and the additional extension must be
attached thereto.
During any part of this process, if
a prisoner feels or i~ able to prove
that DOC officials, have failed to
follow their own rules and such has
caus'ed the prisoner to spend much
more time in AC than DOC rules call
for, the prisoner may, pursue
adfJlinistrative remedies.
Administrative Remedies
Prisoners may challenge their
continued 'retention in AC under
F.A.C., 33-103.00(3)(a). The first
step in this type of issue, is to file an
informal grievance.. An informal
grievance shall be submitted to the
staff member who is responsible in
the particular area of the problem.
See': 33-103.005(1). In this case, that
would be the investigating officer
(the inspector), who requested the
prisoner to be placed in AC.
Arguments a prisoner should
consider raising when filing the
informal grievance are:
1) That the ICT never ~pproved
the five days extension or the SCO
the thirty day extension;
2) That the' time has passed for
such . extensions and the prison~r
remains in AC;
.
3) That no security issues justify
the
prisoner's
continued
AC
retention;
4) That mandatory language and
substantive predicates in DOC rules,
create a liberty interest for the
prisoner to remain in the general
population, rather than in AC; or,
. 5)' That DOC. has failed to follow
their own rules. and the prisoner
should be released from AC for such
failure.

The above grounds are just
examples of issues a prisoner can
raise. However, some' mayor may
not apply depending on the particular
circumstances that are present.
Prisoners should raise any other issue
that may provide a basis for relief.
'Mandatory
Language
And
Substantive Predicates
If the prisoner is raising 'this
argument; he ,should consider .the
ruling made in 'McQueen v. Tabah,
839 F.2~ 1525 (11'" Cir. 1988),
which held in relevant .part that
"mandatory language and substantive
predi<;ates
in' depart~ent of
corrections' rules and regulations
concerning
administrative
segregation... create fOJ: inmates a
liberty interest in remaining in the .
general prison population..:"
A rule or regulation creates a
liberty interest if it limits the
discretion of officials. See: KentucJcY
Dept. of Co"ections v. Thompson,
490 U.S. 454, 462 (1989). The most
common way of limiting discretion is
to
use "explicitly mandatory
in
connection
with
language
,requiring substantive predicates."
See: Hewitt v: Helms, 459 u.s. 460,
472~ (1983). Mandatory language
often means words like shall, will, or
must. See: Flewitt, supra, at 476.
Substantive
predicates
are
substantive limitations on official
discretion. See: Olim v. Wakinekona,
46i U.S. 238, 249 (1983). They can
also be' procedures or standards that
guide
decision
makers.
See:
Connecticut Board of Pardons v.
Dumschat, 452 U.S. at467.

How

To File The Informal,
Grievance
When submitting the informal
grievance. the prisoner shall use form
, , DC6-236, Inmate Request. On top of
the page, on the first line of the word
"Requ~t," or on the first line of the
request section, the prisoner shall
print
the
words
"Informal
Grievance." Failure to do this will
cause the request to be handled
routinely and it' will not be
13

Florida Prison Legal Perspectives
.·considered·· an informal. grievance.
complaint to the warden or assistant
thrown away by DOC staff.. with the
See: 33-J03.00S(2)9b).
warden. See: 33-103.00S(4)(d).
intention of hindering tile. prisoner
The prisoner has IS days from the . from pursuing any. rem~yand
Likewise, this will also cause the
form to be unacceptable as
response to seek further review. See:
exposing their violati~ns.· J~~jJ!>0C
rules. '
" .': \
documentation .of having .met the
33-103.011(I)(b)(I). If this review is
denied, then the prisoner has 15 days
informal step ifit is attached to, a
DOC officials are aware of this
from the response to file an appeal to
formal· grievance submitted at the
fact and after many years of allowing
the secretary. the appeal must
next step. Id.
this practice adopted Rule. 33Prisoners cannot ask questions,
include a copy of the informal
103.017 which states in 'pertinent part
seek information, guidance or
grievance and response. also the
n[s]taff found to be obstructing an
assistance in their grievance or it will
copy and response of the review
inmate's access to the grievance
be considered a request and not an
sought with the warden to the' DC 1proces~
shall be subject to
303. Request for Administrative
disciplinary action ranging from oral
informal grievance: See:· 33Remedy or Appeal; The same
103.00S(2)(bXI).
reprimand up to dismissal in
requirements regarding attachments
Further, section (2)(b)(2) states
accordance with Rules 33-208.001appiy at these steps.
that "when completing the inmate
.003, F.A.C."
, request form for submission" as an
Issues appealed should raise any
Prisoners should also note, that
counter arguments to the responses
grievances filed· through aiibfficial
informal grievance, the inmate shall
grievance
procedure
are
received and address any claim
ensure that the form is legible, that
overlooked or sidestepped by the
constitutionally protected. See:
included facts are accurately stated,
respondent.
.
. and that only one issue or complaint
Williams .v. Meese, 926 F.2d 994.
998 (10lb Cir. 1999).
..
.is addressed. If additional space is
Further, that retaliation against
needed, the inmate shall use
Time Frames For Responding
attachments arid not multipie' copies
The following time frames apply
prisoner for, pursuing grievance
to
the
grievances
discussed
of form DC6-236. Attachments that
violates right to petition government
heretofore:
are a continuation of the grievance
for redress of grievances guaranteed
by first and fourteenth Amendments
statement shall be submitted in
triplicate." (DOC has proposed'
and is actionable under § 1983. See:
• Informal. Grievances-within
mlemaking that seeks to eliminate
Gayle v. Lucas, 13.3 F. Supp.2d 266
10 calendar days following
(S.D.N.Y.2001)..
this requirement).
receipt of an informal
Thereafter,
33-103.005(4)
Likewise, a prisoner has a rigl1t
.grievance by the staff
provides that n[t]he recipient shall
not to be subjected to bogus
member.
-disciplinary reports in retaliation for
respond to the inmate following
• Formal
Grievances-20
investigation and evaluation of the
his exercise of a constitutional right.
calendar days from the date
complaint within 10 days...n
See: Nunez v. Goard. 172 F. Supp.
of receipt of the grievance to
Furthermore, n[t]he recipient shall
2d 417~.D.N.Y. 2001)..
I take action and respond.
While retaliation is used by DOC
state that the grievance is either
• Grievance Appeals to the
approved, . denied, or returned
staff
as a tool to discourage prisoners '
secretary-shall be responded
from
filing grievances,. as shown
without action. The response shall
to within 30 calendar days
also state the reason or reasons· for
above.
it is contrary to DOC rules
from the date of the receipt
the approval, denial, or retiJm,'tSee:
and
clearly
established decisional
of the grievances. See:' 3333-103.005(4)(b)~ ,
law.
103.01I(3)(a)-(c).
The response to· the informal
grievance shall include the following
End Note
. Prisoners should keep in mind
statement, or one similar in content
Judicial remedies on this issue
that unless the grievant has agreed in
will
not be discussed in this article,
and intent if the grievance is denied:
writing to an extension, expiration of
since
the likelihood that the prisoner
You
may·
obtain
further
a time limit at any step in the process
administrative review of your
will
still
be in AC by the time he or
shall entitle the prisoner to proceed .
she goes through this process is
complaint by obtaining form DC1- . to the next step of the grievance
303, Request for Administrative
unlikely.
process.
Hopefully.
the
information
Remedy or Appeal, completing the
If this occurs. the prisoner must
provided
form as ,required by Rule 33in
this
article.
has cleared
clearly indicate this fact when filling
103.006, FoA.C.• attaching a copy of . at the next step. See: 33-103.011(4)...
many misconceptions prisoners have
concerning the prisoner investigation
your informal grievance and
Knowing how much time officials
procedure. and will be· very useful to
response. . and forwarding your
.have to respond to your grievances is
law clerks providing assistance to ~
important, since many grievances are
. prisoner with this type of issue••

14

Florida Prison LegalPenpectWes

.

The following are sum,!,aries ofrecent state andfederal cases that may be useful to or have a slgnijicant impact on Florida prisoners.
Readus should always read thefu// opinion as published in the Florida Law Weekly (Fla. L. Weekly); Florida Law WeeIcJy Federal
(Fla. L Weekly Fedual); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F.id): O/' the
Federal Supplement 2d (F.Supp. 2d), since these summaries arefor general information only

Supreme' Court of Florida
Polite v. State, 32 Fla. L. Weekly
S576 (Fla. 9/27/07)
In .Gary Lamar Polite's case, the
Florida Supreme Court held that
knowledge that the victim is a law
enforcement officer is an essential
element of the offense of resisting an
officer with violence' under' section
843.01, Florida Statutes, which
makes it unlawful to "knowingly.and
will fully resist, obstruct, or oppose'
and officer in the execution of legal
process or in the lawful execution of
any legal duty.
Based upon the findings, 'ihe
Florida Supreme Court quashed the
conflicted opinion of the Third
District Court of Appeal i~ Polite v.
State, 933 So.2d587 (Fla. 3d DCA
2006), and approved the opinion' in
A.F. v. State, 905 So.2d 1010 (Fla.
SdI DCA 200S)

I

In Re: Amendments to the Florida.
Rules of Civil Procedure, The
Florida
Rules
of Criminal
Procedure, The Standard Jury
Instructions In Civil Cases, and The
. Standard Jury Instructions in
Criminal Cases-Implementation 'of
Jury
Innovations
Committee
Recommendations, 32 Fla. L.
Weekly S600 (Fla. 10/4/07)
The Florida Supreme Court noted
that in 1999 the Jury Innovations
Committee (Committee) of its
Judicial
Management
Council
embarked
on
the
most
comprehensive review and thorough
evaluation of Florida'li jury system in
the history of the State. This
Committee identified and reviewed,
, among other things, current use of
juries, issues facing jury managers.

accessibility issues, and proposals for
jury improvement and innovations in
other states.
The Committee began itS task to
advocate reform and innovations,
and after reviewing every aspect of
the jury system, it submitted a final
report to the Florida Supreme Court
.that
contained
comprehensive
recopunendations for improving
Florida's jury system.
After receiving the' Committee's
report and other recommendations
from the numerous committees of
each subject involved, the Florida
Supreme Court amended the Florida
Rules of Civil Procedure, The
Florida
Rules
of
Judicial
Administration, and the Florida
Rules of Criminal Procedure. These
amendments were ordered to become
effective January I, 2008, at '12:01
a.m.
Further.
publication
was
authorized on and use of new and
revised civil and crimiRlil jury
instructions, which were also ordered
to become effective January 1. 2008.
(Note: A complete review of the
amendments. and the new and
revised' jury instructions can be
found in the above cite's appendix in
Vol. 32, Issue 41; of the Oct. 12.
2007, Fla. L. Weekly beginning on
page S602 and ending on page
S606.]
State v. Sigler, 32 Fla. L. Weekly
S607 (Fla. 10/11/07)
The State presented Jay Junior
Sigler's. case to the F:lorida Supreme
Court t 0 review the decision of the
Fourth District Coun of Appeal that
declared a state statute. section
924.34; Florida Statutes (2001),

invalid. See: Sigler v. State, 881
So.2d 14 (Fla. 4th DCA 2004). '
, After discussions on·the issue. it
was concluded that section. 924.34,
Florida Statutes,' Which allows. an
appellate court to reverse a judgment
and direct the trial court to enter a
judgment for a lesser included
offense, Is unconstitutional to the
extent that It can be read to allow the
appellate court to direct entry of
judgment for a lesser included
offense when all elements of the
lesser included offense have.not been
found by the jury beyond a
reasonable doubt.
Accordingly, the Fourth District's
decision in Sigler. [d. was affirmed.
Lawson v. State. 32 Fla. L. Weekly
S659 (Fla. 10/2S/07)
. The Fifth District Court of Appeal
in .Sammy Lee Lawson's case.
Lawson v. State. 941 So.2d 485 (pIa.
5th DCA 2006), presented the
certified question: ~'Does a trial court
abuse its discretion in finding a
defendant, who is discharged from a
court-ordered
drug
treatment
program for nonattendance. in willful
vidlation of probation when the
sentencing court did not specify the
number of attempts the defendant
would have to successfully complete
the program and impose a time
period for compliance?"
The Fifth District had answered
the question in the neptive .in
Lawson's case, which conflicted with
several Second District's decisions:
Singleton v. State, 862 So.2d 93 i
, (Fla. 2nd DCA 2004); Salzano v.
State, 664 So.2d 23 (Fla. 2nd DCA
1995); and as well as others.
After a lengthy analysis, the
Florida Supreme Court agreed with

15

,Florida PJ1s0D Legal Penpeetives
Initially. Beasly was offered a
plea deal of a 15-year PRR prison
sentence. Beasly's counsel however.
advised Beasly that he did not'
Brooks v. State, 32 Fla. L. Weekly
qualify for a, PRR sentence and to not
S664 (Fla. 10125107)
accept the offer. "
Subsequently. immediately before
In James L. Brooks' case, the
jury selection the State served notice
Florida Supreme Court held that the
that it intended to seek a habitual
could-have-been-imposed harmless
offender sentence. The effect of such
error standard applies to claims of
notice .increased Beasley's exposure
sentencing score sheet errors nused
from the favorable PRR IS-year
by rule 3.800(a) motions. Further, it
offer to that of a 30-year habitual
was held,. the would-have-beenimposed standard, which requires
offender prison sentence.
,resentencing unless the record
However. because of the timing
of the State's notice. Beasley's
conclusively shows that the same
counsel was unable to inform
sentence would have been imposed
Beesley ofthe ramifications involved
using a correct score sheet, would
with such a notice .being filed.
defeat the purposes of preserving
Beasley contended in his rule 3.850
issues for review and would
motion that had he known of the
circumvent the appellate process if
ramifications involved, he would
applied to sentencing issues raised
have taken the plea offer and would
under rule 3.800(a).
not have "rolled ihe dice" with ajury.
Beasley's counsel did not refute the
allegations.
,
,.
Distrid Courts of Appeal
The appellate court found that the
lower, court's denial was not
Woods 11. State. 32 Fla. L. Weekly
th
supported
by competent, substantial
D2022 (Fla. 4 DCA 8122107_
evidence.
Accordingly, the lower
Herbert Lynn Woodsappeal~ the
court's
order
of denial was reversed
summary denial of his rule 3.850
and
the
case
was
remanded.
motion, where the lower court had
In
the
appellate
court's conclusion
denied the motion for failure to
it
was
further
noted
that although it
provide a jurat (notarized/undid
not
have
the
authority
to require
notarized oath showing the claims in
the
State'
to
re-offer
its
original
plea
the motion were sworn to).
offer
on~
remand,
it
suggested
that
the
The appellate court opined it waS
parties
should
engage
in
a
"good
error for the lower court to
faith
resumption
of
plea
summarily deny Woods' motion
negotiations!'
See:
Feldpausch
v.
without allowing him to correct the
nd
State.
826
So.2d
354.
357
(Fla.
2
insufficiency. Thus, Woods' case was '
851
reversed and remanded, with , DCA 2002); Rudolf. v. State,.
nd
So.2d 839. 841-42 (Fla. 2 DCA
instructions to allow the correction
2003); and Eristma v. State, 766
. and the lower court to rule on the
So.2d 1095. 1097 (Fla. 2nd DCA
merits ofthe corrected motion.
2000). If negotiations took place but
failed,
it was instructed that Beasley
. Beasly v. State. 32 Fla.' L. Weekly
nd
would
be
given a new trial.
02042 (Fla. 2 OCA 8124107)
John' Beasly appealed the denial
Harrell v. State. 32 Fla. L. Weekly
of his rule 3.850 motion, where, in
02054 (Fla. 2nd DCA 8/29/07)
pertinent part, he had claimed that
The appellate court in Michael
his trial counsel was ineffective for
Harrell's
case pointed out that a writ
not informing him
of the
of
mandamus
petition is the proper
consequences involved with a
in the lower court to
vehicle
to
use
habitual offender notice.
compel a former counsel to tum over
the Fifth District's opinion and
,disapproved the Second District's
decisions;

16

court documents in that counsel's
possession.
If was further stressed that ·the
mandap1us
petition·, should.
specifically identify the items that
are being sought. See: Potts v. State.
869 So.2d 1223. 1225 (Fla. 2nd DCA
2004).

Ma"ero v. State. 32 Fla. L. Weekly
02101 (Fla. 21ld DCA 9/31/07)
'In Jose Marrero's case, the
appellate court stressed that a'filing
of rule 9.141(c) petition alleging
ineffective assistance of appellate
counsel does not toll time for filing a
rule 3.850 motion.
It was further noted that even if
the rule 9.l41(c) petition resulted in
a' re-sentencing on a conviction, it
does not re-open the expirea time
period for filing a rule 3.850 motion
as to matters that could have been·'
timely raised. See: Foseph·v. State~
835 So.2d 1221 (Fla. 5th DCA2003).
Also see: Johnson v. State; 536 So.2d
1009, I 1011 (Fla. 1988); State v.
Green, 944 So.2d 208. ,217 (Fla.·
2006)'; and Baker v. State. 878· So.2d
1236~
1238-44
(Fla.
2004)
(explaining the history of rule 3.850).

,

Lago v. State. 32 Fla. L. Weekly

D2104 (Fla. 3rd DCA 9/5107)
Migliel Lago appealed the denial
of his rule 3.800(a) in which he had
. claimed. that his consecutive
sentences for his 1990 convictions
for robbery with a firearm and
unlawful possession of a firearm
while engaged in a criminal offense
w~re violative of his constitutional .
protection against double jeopardy; •
The lower court, although finding
Lago's'sentences to be "patently
illegal," denied the rule 3.800(a)
motion on grounds of "law of the
case.'~ This was subsequent '~!l Lago's
unsuccessful direct appeal and
several unsue<;eSsful pro se rule
3.850 motions where he had no
counsel. Lago. for the first .time had
counsel with the rule 3.800(a)
motion.
On appeal, the appellate court
opined that it agreed that Ugo's"

Florida Prison Legal Penpectives
sentences were" patently illegal" and
found that such was manifestly
. unjust It was also opined that the
denial of' the rule 3.800(a) was
proper on law of the case groun~s.
However, such did not preclude a
correction of Lago's sentences. See:
Strazulla v. Hendrick, 177 So,.2d I, 4
(Fla. 1965).
Accordingly, Lago's appeal was
treated as a habeas petition and was
granted. See: Ross v. State, 901
So.2d 252. (Fla. 4th DCA 2005).
Therefore, Lago's case was remanded
with instructions to resentenced
Lago.

Collazo v. State, 32 Fla. L. Weekly
D2124 (Fla. 4th DCA 9/5107)
Jose A. Collazo was sentenced to
a Mandatory minimum of thirty
years for a second degree felony,
third-degree murder with a fireann,
and he appealed.
The appellate court opined it was
error to sentence Collazo to a thir:tYyear. mandatory minimum for a
second degree felony. It was
explained that because section
775.087, Florida Statutes, subjected
Collazo to a minimum mandatory
enhancement of twenty-five years to
life and the second degree statutory
maximum of fifteen-years is less
than the twenty-five .minimum
mandatory, the lower court could
impOse
that
minimum
only
mandatory. '
Accordingly, Collazo's sentence'
was reversed and the, case was
remanded for re-sentencing.
[Note: In prior ruling, Collazo v.
State, 936 So.2d 782, 784 (Fla. 4th
DCA 2006), the appellate couit had
opined that the lower court had the
discretion to sentence Collazo to
more than twenty-five years. In· the
above FLWcase the appellate court
ruled en banc and receded from its
prior opinion.]

Beckford v. State, 32 Fla. L. Weekly
D2158 (Fla. 41b DCA 9/12/07) ,
.On direct appeal, Trace Beckford
asserted that the trial court erred in

'_.':-

failing to grant his motion for
bullet he never attempted to' escape
or flee;
judgment of acquittal because the
evidence presented by the State 'was
AccQrdingly, Hebert's conviction
for escape ws reversed and the case
entirely circumstantial and did not
rebut, a .. reasonable hypothesis of
was remanded with instructions.
innocence.
Beckford was charged. with
Latson v. State,' 32 Fla. L. Weekly
, burglary of an occupied dwelling or
D2166 (Fla. 4 th DCA 9/12/07)
structure. The appellate court found
Robert Lee Latson appealed an
that the circumstantial evidence that
order summarily denying his habeas
a neighbor saw Beckford walking
petition where liIe sought to file a
down a driveway of the burglarized· . belated rule 3.850 'motion as a
premises ws insufficient to prove he
consequence of appellate counsel's
failure to inform him of the outcome
committed or attempted to commit a
burglary or to refute a reasonable
of his direct appeal and of his right to
hypothesis that Beckford was merely
postconviction relief.
soliciting and, finding nobody home,
.The appellate court opined that it •
proceeded to walk down the
was error to'summarily deny Latson's
driveway.
petition. Therefore, the case was
Accordingly, the appellate court
reversed and remanded for the lower
agreed with Beckford's assertion and,
court to hold
evidentiary hearing
reversed and remanded the case with
on Latson's claim that the appellate
directions that his conviction be
lawyer failed to inform him of the
direct appeal outcpme and, should it
vacated.
be found credible, Latson should be
Hebert v. State, 32 Fla. L. Weekly
permitted to file a belated rule 3.850
D2164 (Fla. 4th DCA 9/12107)
motion.
In Kenneth Nelson Hebert's
appe!lI,
on
motion
for
Newkirk v. State, 32 Fla. L. Weekly
rehearing/clarification, the appellate
D2223 (Fla. 2nd DCA 9/19/07)
court opined that Hebert's escape
Gene David Newkirk appealed his
conviction could not be sustained
'convictions· and sentences for
where he was never placed under
burglary of a dweJling, grand theft of
arrest before he fled from the officer..
a firearm, carrying a concealed
An escape conviction requires the
firearm, possession -of a shortactual or Constructive seizure or. barreled shot gun, and possession of
detention' of a person to be arrested
a firearm by a delinquent
,Newkirk had pleaded no contest
by a person having present power to
to those charges after the trial court
control
the
person
arrested.
Furthermore, there can be no arrest
denied his dispositive motion to
without either a touching .or a
suppress. The dispositive testimony
submission to authority. The
at the suppression hearing came from
evidence that was presented in
the arresting. officer (officer). The
officer testified. that while he ws
Hebert's case demonstrated nothing
serving civil process he saw two
more than a' show of authority on
boys running from a wooded' area.
part of the officer, who shouted to
Although the officer did not have any
Hebert that hewa~ under arrest and.
reasonable suspicion the boys had
to pu~ his gun down, and in response,
committed, were committing, or
Hebert continued to flee up, until he
were about to commit a crime, he
was shot.
turned on his emergency lights to
The appellate court opined that
stop the boys, one being Newkirk,
even if the officer's striking Hebert
,and question them "about what was
with a bullet were characterized as a
going on."
"physical touching," such touching
The trial court found that the
could not sustain escape conviction
officer
conducted
a
because after he was shot with' the
proper
17

an

Florida Prison Legal Penpeetives
investigatory stop, thus denying
Newkirk's motion to suppress. On
appeal,.Newkirk contended t~at such
finding was erroneous.
In the appellate court, the State
argued that the initialstop of the two
boys was a consensual encounter.
The appellate court opined that the
problem with the State's argument
was twofold. It went on to explain
that Florida law consistently holds
that when an officer activates his
emergency lights, that act initiates an
investigatory stop, not a consensual
encounter. Further, it was also
opined that the State's argument was
contradicted by its own witness's
testimony. The officer testified that
the initiai contact was not a citizen
encounter.' He further testified that
the moment he activated" his lights,
Newkirk and his companion were not
free to leave.
Accordingly, based upon the
appellate court's findings, the trial
court should have granted Newkirk's
motion to suppress. Thus, the
appellate court reversed Newkirk's""
convictions and sentences. and
remanded for disch~ge.

O'hara v. State: 32 Fla. L. Weekly
02214 (Fla. 2nd DCA 9/.19/01)
In Mark O'hara's case,. the
appellate court opined that where a
defendant has presented evidence
that the drugs he possesses were
prescribed by a physician and had
. been obtained from a pharmacy, the
defendant would be entitled to
request a jury instruction in that it
was not illegal
to' possess
hydrocodone if it had bee: prescribed.
It was further noted that sections
499..03 and 893.1l of the Florida
.Statutes allow a person to legally
possess· either a legend drug or a
controlled substance when the drug
was obtained pursuant to a valid
prescription. These sta~utes apply
.even when a person PDssesses a
trafficking amount.
Boyd v. Stale, 32 Fla. L. Weekly
02290 (Fla. 1II DCA 9/25/07)

18

Judgment had been entered in the
lower court against· Calis Lee Boyd
for attempted possession of a firearm
by a convicted felon, and he was
sentenced to a 3-year minim.um term
under section 775.087(2) (a) 1.,
Floriqa Statutes (2005). Boyd
challenged the sentencing on appeal.
The appellate court depicted what
775.087(2)(a)l. reads and opined that
attempted possession of a firearm by
a convicted felan is not included in
it, nor was it believed the legislature
intended to include the attempts of
the listed crimes· after the word
"except" in the statute.
Accordingly, Boyd's sentence was
reversed
and
remanded
for
resentencing.

Gray v. State, 32 Fla. L. Weekly
02309 (Fla. 2nd DCA 9126/07)
The appellate court reversed
Randall Carlton Gray's sentence for
his conviction of manslaughter
because it opined that the trial court
had erred in considering details of
pending charges that were alleged to
have occurred after the manslaughter
offense. See: Se~s. v. Slate, 789
So.2d 1209 (Fla. 4 DCA 2001). :
Accordingly, Gray's case ws
remanded for resentencing by a
different judge.
Walker \I. State,. 32 Fla. L Weekly
D2313 (Fla. 2nd DCA 9/26/01)
Alexander Walker's sentence of
life in prison as a habitual offender
was reversed.
The appellate court opined that
the lower court had erred in
sentencing Walker as a habitual
offender where the Stat~ did not
present sufficient proof of qualifying
prior 'Convictions. It agreed with the
defense counsel's argument in the
lower court during objection of the
State's documentation of prior
convictions: "[T]here was no finger
print comparison and no identifying
marks to show that this defendant
was the same per:son sentenced.to the
prior offenses." See: Rivera v. State,
825 So.2d 500, 50 I (fla. 2nd DCA
2002). .

Accordingly, and because an
appropriate objection' in the lower
court had been made, Walke'r's case
was remanded for resentencing under
the Criminal Punishment Code. See:
Walker State, 835 So.2d 1281 (Fla.
2nd DCA 2003).
The appellate court further
acknowledged that its conclusion in
Walker's case, as well as in·· Rivera,
Id., and Wallace. Id., is" in conflict
with decisions of the First, Fourth,
and Fifth Districts, in that it has not
afforded the State a second
on
remand
to
opportunity
demonstrate that the defendant meets
the habitual criteria. As such, and as
it did in Collins v. State, 893 So.2d
592 (Fla. 2nd DCA 2004), the Second
District certified conflict with the
. above mentioned Districts.
J

v:

Tumblin v. State, 32 Fla. L. Weekly
D2331 (Fla. 4th DCA 9126/07)
Tavorris Tumblin appealed the
denial of his rule 3.800(a) motion
where he had argued that his PRR
sentence was illegal based on
Apprendi V" New Jersey, 530 U.S.
466 (2000), and State v. Overfelt,
475 So.2d 1385 (Fla. 1984).
Tumblin. was found guilty of
burglary of a dwelling with an
assault or battery, and he was
sentenced to life in prison as a PRR.
In his rule 3.800(a) motion, he
contended that the facts required to
support the enhanced sentence were
" not submitted to the jury. The jury
did not make a specific finding that
the dwelling was occupied. And,
Tumblin's offense was committed
before the PRR statute was amended
in resppnse to Siale v. Huggins, 802
So.2d . 276 (Fla. 2001), to include
burglary of an unoccupiel1 dwelling.
Tumblin's case was remanded for
resentencing.
Whilley v. State, 32 Fla. L. Weekly
D2345 (Fla. 2nd DCA 9128/07)
James A. Whittey appealed the
summary denial of his rule 3.850
motion, in which the appellate court
affirmed but, wrote only to comment
upon the' lower court's denial of

Florida ~Prison Legal Perspectives
Whittey's motion to extend the time
for filing his motion for rehearing.
Before Whittey's time had run
out to file a motion for rehearing, he
filed a motion for extending the time
to do so. In that extension motion,
Whittey contended .that he was
entitled to additional time to frame
facially sufficient claims because his
access to the prison law library was ..
limited. Whiney specifically alleged
that he was required to schedule law
li\>rary time "via request slip" and
that access was limited because the
library's capacity is' twenty-six
people for an institution housing
approximately thirteen hundred
inmates. The lower court decided
that Whittey did not demonstrate
good cause for an extension. See:
Slale v. Boyd, 846 So.2d 458 (Fla.
2003).
Whittey cited to Daniels v. Stale,
892 So.2d 526 (Fla. 151 DCA '2004)
(where it was opined that Daniels'
motion for extension $hould have
been granted because his reasons for
needing the additional time stated
good cause: the· "need to schedule
time in the prison library and to
obtain the assistance of an inmate
law clerk." Although Whiney
similarly alleged the need to
schedule law library time, he did not
state that he needed the assistance of
alawclerk.
As a result, the appellate court
opined that the lower court did not
abuse its discretion in d~nying.
Whiney's motion for extension of
time. Thus, the lower court's denial
was affirmed.
Ramsey v. Stale, 32 Fla. L; Weekly

02349 (Fla. 2nd DCA 9/28/07).
The appellate court opined - that
the lower court erred in dismissing
Howell M. Ramsey's rule 3.850 as
untimely, although it was 'fiIed in
June 2005, and his· conviction and
sentence became final in April 1997.
Ramsey's case was. not a usual
one on th~ issue. As the appellate
court
opined:
"Under
usual
circumstances, Mr. Ramsey would
have been required to file [his rule

3.850 motion] within two years...."
However,
Ramsey had been
imprisoned in New York State from
the date his judgment and sentence
became final. until June 2003, during
which time he was unrepresented by
counsel and had no access to Florida
law materials. See: Demps v. Slale,
696 So.2d 1296, 1298-99 (Fla. 3n1
DCA 1997).
.
Accordingly, it was found
Ramsey's motion was timely, thus,
the case was reversed and remanded
for the lower court to consider it on
the merits.
Powell v. Slate, 32 Fla. L. Weekly

02418 (Fla. 2nd DCA 10/1 0/07)
Kevin Dewayne Powell filed a
pro se 'brief, subsequent to'· ~is
appellate counsel filing an Anders
brief (Anders, v. California, '386
·U.S.738 (1969» that posed an
arguable issue: "Whether the trial
court erred in permitting the use of
Mr. Powell's statements at trial."
Powell contended that· the
Miranda warning (Miranda v.
Arizona, 384 U.s. 436 (1966» that
was given him pri,or to the statements
he· made, and subsequently used at
trial, did not adequately inform him
of his right to have counsel present
during qu.estioning. After the alleged
inadequate Mirandq warning given
by Tampa (Hillsborough County,
Florida) police detectives, Powell
gave incrimil'!ating statements.
It was argued that the standard,
Tampa, police department Form 310,
read
verbatim;
informs
the
defendant/suspect that they "have the
right to talk to a lawyer before
answering any of our questions" and
" have the right to use .any of these
rights at any time you want during
this interview" was adequate.
The appellate court opined' that
the ability to talk to a lawyer before
answering questions, which' Powell
was told was his right, was derivative
of Powell's, and every suspect's,
greater right to have an attorney
present at all times during custodial
interrogation. As a result, it was
opined that the warnings provided in

Powell's case were constitutionally
deficient,
under
the
Fifth
Amendment of the Constitution of
the United States and Article I,
Section 9 of the Constitution of the
StateofFlorida,'snd failed to comply
with the Miranda requirements.
, Accordingly, Powell's conviction
was reversed and the case was
remanded for further proceedings.
[Note: In Powell's case the appellate
court issued the' certified question:
'''Does the failure to provide express
advice of the right to the presence of •
counsel during questioning vitiate
Miranda warnings which advise of
both (A) the right to talk to a lawyer
'before questioning' and (B) the 'right
.to use' the' right to consult a lawyer
'at any time' during questioning?" to
the Florida Supreme Court] •

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19

Florida Prison Legal ~enpectives

..

~
'":.

POST CONVICTION
CORNER

.

by Loren Rhotoa. Esq.

,

~,

"'_..,1 .

,Events can occur at a trial which necessitate the declaration of a mistrial so
that the case can be tried agail1 However, a.mistrial should not be unilaterally
declared by a trial court unless there is an absolute necessity therefor.
Occasionally a trial court will unnecessarily deClare a mistrial without considering
other options. If a jury is discharged for legally insufficient reasons and without
an absolute necessity and without the defendant's consent, such discharge is
equivalent to ~ acquittai and precludes a subsequent trial for the same offense." .
State v. Grayson, 90 So.2'd 710 (Fla. 1956). In such ca~e, the defendant should
not be brought to trial on the same charges.
'
Thewishes'ofa defendartt to cOlitinue the trial must control when manifest
necessity haS not been demonstrated. Thomason y. State, 620 So.2d 1234 (Fla.
1993). Doubts about.whether the mistrial declaration is appropriate should be
resolved in favor of the liberty of the citizen. Id..When a judge fails to consider
and reject alternatives, manifest necessity does not exist. In such a chse, if a
defendant strongly expresses his desire to continue the trial a judge would err in
declaring a. mistrial. Id.'
,
Occasionally trial counsel w.ill not underst\ll1d the application of double
jeopardy principles to an improperly declared mistrial and will either consent to
said mistrial or fail to raise a ~oubl~ jeopardy claim at the proper time. If and
when a trial court improperly declares a mistrial (Le., where there is ito absolute
necessity and in the absence of a request from the defendant) the best possible'
thing would for defens,e 'counsel to stand mute. A defendant's silence when a trial
court sua sponte grants a mistrial cannot be construed as consent to mistrial. EW
v. Spencer. 616 So.2d 84 (Fla. 3 rd DCA 1993); and, Allen v. State, 52 Fla. 1 (Fla.
1906).. If trial counsel consents to a mistrial after it has been improperly ordered
or if counsel fails to challenge a retrial thereafter, this may amount to
.
ineffectiveness of counsel sufficient to justify overturning a judgment and "
sentence.
.
In order to demonstrate ineffectiv~ assistance of counsel a defendant must
prove both that his counsel 'performed deficiently and that the performance
actually prejudiced the defendant. Strickland v. Washington, 466 U.S. 668 (1984)w
The two prongs ofthe ineffectiveness inquiry.are independent of one another, and
thus, must both be proved to establish a claim of ineffective assistance of counsel.
Id. at 697. In order to satisfy the "performance" prong of the Strickland test a

a

,

~o

Florida Prison LeJ81 Penpectives
defendant must show that his counsel's representation fell below an objective
standard ofreasonableness. Id. at 687-688.·lnorde~to demonstrate the prejudice
prong of Strickland "the. defendant must 'show that there is a reasonable probability
. that,. but for counsel's unprofessional errors, the result of the proceeding would
ltave been different." ~ at 694. A reasonable probability is a probability
.sufficient to undermine confidence in the outcome. llL tn Lockhart v. Fretwell,
·506 U.S. 364 (1993), The United States Supreme.Court further explained that "the
'prejudice' component ofthe Strickland test... focuses on the quest~on whether
counsel's deficient performance renders the result ofthe trial unreliable or the
proceedings fundamentally unfair." See also, Robinson v. State,770 So.2d 1167,
1171-73 (Fla. 2000) (Anstead, J., specially concurring) [a demonstration of
prejudice under Strickland need only show that tht!1tittomey's deficient
performance put the whole case in such a different Hght as to. undermine the
court?s confidence in the outcome of the proceedings].
.
In a situation where defense counsel actually consents after the mistrial has
been improperly ordered or where defense counsel fails t~ thereafter raise a double
jeopardy claim, an argument can be made that defense counsel was ineffective and
that said ineffectiveness prejudiced the defendant. In such.case counsel's
ignorance of a substantial body of case law is objectively unreasonable and falls
below prevailing professional norms, for purpose ofan ineffective assistance of
counsel claim. Tomlin v. McKune, 516 ·F.Supp. 2d 1224 (D.Kan., 2007). In
Tomlin, defense counsel essentially consented to an improper order of mistrial
when there was no manifest necessity for the mistrial. The Tomlin Court noted
concern about when an error that forms the basis for the relief cannot be corrected
in further proc~edings. The Tomlin Court wrote, "[f1or example, when a trial
would violate the Double Jeopardy Clause of the Fifth Amendment, barring the
trial may be the only remedy forthe violation." Tomlin at 1242. Thus, in a
. situation where defense counsel has either consented to~ or failed to challenge, a .
double ieopardy violation due to the improper. gfahiing of a mismal, the proper .
relief should be to put the defendant in the position which he would have been but
for the ineffectiveness of counsel. In other words, the relief should be to bar
retrial on the grounds .that such a retrial would violate the-pfollibition against
doublejeopardy.
-I

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appeilate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
.- area ofthe law, both at the State and Federal ~el. He has assisted
hundreds ofincarceratedpersons with their cases and has numerouS
written appellate opinions. •

21

Florida Prison Legal Penpectives

Loren D. Rhoton'

I
-------------.....
Postconviction Attorney
•
•
•
•
•
•

Direct Appeals
Beiated Appeals
Rule 3.850 Motions
Sentence Corrections
New Trials
.
.
Federal Habeas Corpus Petitions

412 East Madison Street, Suite 1111
Tampa, Florida 33602
(813) 226-3138
I
Fax (813) 221-2182
" Email: lorenrhoton@rhotonpostconviction.com
Website:" www.rhotonpostconviction.com
."

•

The hiring of a lawyer is an important decision that should not be based solely on advertisements.
. Before you decide, ask us to send you free written information about our qualifications.

BUY THE BOOK-ON SALE NOW:
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Postconviction Corner Articles
A collection of Laren Rhoton's PostcomJiction Corner articles is now available in one
convenient book geared towards Florida inmates seeking justice in their cases. IDsights based.
on professional experience, case citations, and references to the relevant ruleS ofprocedUIe.
" are provided. This book is specifically directed toward those pursuing postconviCtion relief. .
To order, send $20.00 in the form of a money order, cashier's check or"inmate
bank check (no stainps, cash or personal checks please) to the address above, or
order online at www.rhotonpostconviction.com.
.:

22

Florida Prison Legal-Perspectives
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