FLORIDA PRISON LEGAL

ers ectives
ISSNtI 1091-8094

VOLUME 9. ISSUE 4

JUUAUG2003

~<5&.)) .. ~ ~ __ 1\l0'?-:~~
Florida Supreme Court Clarifies
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Pnsoner IndIgency Statute
by Oscar Hanson
In 1996, the Florida Legislature enacted the
Prisoner Indigency Statute (PIS) and codified it under
section 57.085, Florida Statutes. Florida patterned the PIS
on the federal Prison Litigation Reform Act of 1995
(PLRA). The intent of both acts was designed to reduce
unnecessary and frivolous prisoner filings. Before the
enactment of the PIS, indigent prisoners, -like all other
indigent persons, could ·file civil lawsuits without the
payment of a filing fee and other court costs. However,
under section 57.085, the PIS provides that while an
indigent prisoner may still initiate a civil lawsuit without
first paying a filing fee in full, a partial payment may be
required if the prisoner has some funds in his prison
account, and a lien may be placed on the prisoner's
account. If the prisoner eyer niceives money, a portion of
those funds will automatically be withdrawn and credited
to the filing fee and court- costs until such costs are
satisfied in full.
Similar to Florida's act, the PLRA's requirement
that prisoners pay at .least a partial filing. fee applies only
to civil lawsuits. Florida's statute specifically excludes
"criminal" and "collateral criminal proceedings." Since
the enactment of the PLRA, the federal circuits have been
contending with the issue of whether the. filing fee

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pr~vlslons of ~e PL~. should be. apphed to petitiOns
which seek relief traditIOnally available under habeas
corpus or other collateral or postconviction proceedings.
Because of the hybrid civil-criminal character of such
actions, the federal courts have looked to the legislative
history of the PLRA to determine whether Congress meant
to restrict prisoners from t;jling such actions, and have
found that Congress was principally interested in
discouraging civil damage suits involving frivolous
challenges to prison conditions.
- The federal decisions have found no indication in
the text of the PLRA or it legislative history to indicate
that Congress expected its filing fee payment requirements
to apply to traditional hybrid civil-criminal, habeas-type
actions in which prisoners assert an entitlement to gain
time and an accelerated release from prison but were not
contesting their conditions of co~nement.
Applying this framework to a recent challenge to
Florida's Prisoner lndigency Statute, the Florida Supreme
Court reviewed Florida's legislative history and found that
the legislature had an intent almost identical to that of
Congress when it enacted the PIS. Section 57.085 was
created pursuant to Chapter 96-106, Laws of Florida. The
act provided a preamble, whiC?h set forth the basis or
reason for the act. Based upon the express language and a
close reading of ~e legislative codification, the Florida
Supreme Court concluded that the PIS was enacted· for
substantially the same reasons Congress acted at the
federal level: to discourage the .filing of frivolous civil

Female Prisoners •••••••••••••••••••••••••••••••••••••••••••••••••.•••••.••.•..•..•4
F~male Guard Killed ••••••••••••••••••.•••-•••••••••••••••••••••.••••••••••••.•.6
Post CODviction Comer
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Rehabilitation Rebound ••••••••.••••••••••••••••••••.••••.••••..•••.••••••••~0
Access to Court Case•••••••••••••••••••••••••••••••••••••••••••.•••••.••••••••••25
FPC: Culture of Corruption •••••••••••••••••••••••••••..•••..•.•..••••.~ ••30

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.FLORIDA PRISON LEGAL
PERSPECTIVES
1'.0. BOX 660-:187
CIIUI.UOTA. FL :12766

Publishing Division of:
FLORIDA PRISONERS' LEGAL AID
ORGANIZATION, INC.
A 501 (c)(3) Non-profil Orll3lliwion
Fax (407) 568.0200
Email; (plpf",aol.Cl!!U
Websile:~.fJlli!l!..J!w
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FPLAO DIRECTORS
Teresa Bums Posey
Bob Posey. ClA
David W. Bauer, Esq.
Loren D. Rhoton. Esq.
Oscar A. Hanson. CLA
Linda E. Hanson
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FPLPSTAFF
Teresa Bums Posey
Bob Posey
Oscar A. Hanson
Sherri Johnson

Publisher
Editor
Associate Editor
Research
Administrative Assistant
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ADVISORY BOARD
William Viln Poyck
Philip Bagley
MichllCl Lambri"
Susan Manning
Gene Salser
MiIlk Sherwood
Elizabeth Green
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Quigley
John Hudson
TenyVaughn
Enrique Diaz
David Reuner
Linda Goltieb
Anthony Stuart
J3ITICS

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FLORIDA PRISON LEGAL PERSPECTIVES (FPLP) Is lJublishedulJ ID six limes B
ycu by Flori. Prisonm' Lellil! Aid OrlllJllizalion, Inc., P.O. Box 660-387, Chulullla.
FL 32766
FPLP is a aon-profd Jlulllicalion focusiog on lhe Florid.1lJrisan I1Ild criminal jUSlice
systems. FPLP JlrDvides a whicle for news. information; and resourccs afrCClinll
prisolle... their families, friends.IDwd oncs and the.scnernl public of Florida.
Reduclton of crime and recidivism. mOlnlcoance of family lics, civil ngllls, imlJrDving
conditions Df confinement. promOling skUlcd colU1l1CCCSS fDr Jlrisoncn, and promoling
accountability oflJrilQl1 officials are all issues FPLP is designed ID address.
FPLP's llOlI-aIIomc)' vDlunteer slllfTconnOl respond ID rcqUCSIS for legal advice. Due
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This JlUblication is nllI meant ID be'll substilule fer legal Dr llIhcr profeSSIonal advtce.
The malerial in FPLP should nol he relied an as aUlhDrilalive and may nol conl~in
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FPLP is llUIDmaticall)' KnllD all members Df FPLAO, Inc., lIS a membership benefit
McmbcfShip dues for FPLAO, Inc.• operale yearly and are 19 for IJrisoncrs; I IS fDr
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insIilUliolls. FOlDily mcmbcn or lowd oncs of prisoncrs who are unable 10 afTord lhe
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Prisonas may pay membcnltip dues ..ilh ricw unused postalle slamps. Prisonm Dn
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alTold memheuhip duC'S mil)' request a "'ai\ocr or du~s.

which will be granled as finances JlCI!Uit

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lawsuits, but not to preVent the filing of claims contesting
the computation ofcriminal sentences.
Following that analysis, the Florida Supreme
turned to the question in the prisoner petition represented
by attorneys Robin L. Rosenberg and Wendell T.. Locke of
the Holland and Knight law finn. That petition argued
that a petition for writ of mandamus tiled by indigent
prisoner Kevin Schmidt challenging a prison disciplinary
proceeding where loss of gain. time was imposed by the
FDOC is akin to a traditional habeas corpus action or
motion for postconviction relief, which have been deemed
hybrid civil-criminal actions and clearly meet the PIS's
and U.S. Supreme Court's definition of a "collateral
criminal proceeding" that is 110t subject to the fees and .
costs provision of the PIS or PLRA.
The Court noted that it was apparent that an action
affecting gain time did in .fact affect the computation of a
criminal defendant's sentence because the length of time
the prisoner would actually spend in prison is directly
affected. The Court also recognized that the U.S.
Supreme Court made clear that a prisoner's eligibility for
reduced ~prisonment is a significaot factor entering into·
both the defendant's decision to plea bargain and the
judge's calculation of the sentence to be imposed. Weaver
v. Graham, 450 U.S. 24 (1981).
In Lynch v. Mathis, 519 U.S. 433 (1997), the V.S.
Supreme Court rejected the FDOC's contention that the
retroactive cancellation of overcrowding gain time bore no
relationship to the original penalty assigned to the crime.
The Supreme Court declared that to the extent that the
DOC's argument rests on the notion that gain time is not
in some technical sense part of the sentence, this argument
was foreclosed by their precedents. The Lynce decision
stated that gain time credits are one detenninant of a
prisoner's incarCerative term and that the sentence is
altered once this determinant is changed. Thus, it is clear
that the U.S. Supreme Court has refused to be bound by
the variations in tenninology used in the various
challenges to the computation of an inmate's sentence.
Instead, it has looked to the effect the challenged action
had on the amount of time an inmate has to actually spend
in prison.
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In the iDstant case, Schmidt's loss of gain time
effectively lengthened his sentence, since by the DOC's
action he now has .to serve that additional time in prison.
In accordance with the· authorities discussed
above, the Court held that Schmidt's gain time challenge
is a "collateral criminal proceeding" and the Prisoner
Indigency StatiJte does not apply. To hold otherwise, the
Court noted, would result in an unlawful chilling of a
criminal defendant's right to appeal or otherwise
challenge the propriety or constitutionality of the
. conviction or sentence and raise a serious issue as to
criminal defendants' constitutional rights to access to the
courts to challenge their sentences.

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FLORIDA PRISON LEGAL

It must be noted that while section 57.085 (Florida '
Prisoner Indigency Statute), does not apply in such cases
as above, the 'general indigency statute (section. 57.081)
does. That means that if prisoners seek to proceed in
fonna pauperis with regard to gain time (notably, ~R)
challenges, they must prove their inability to pay b>: fihng
an affidavit with the information required accordmg to
section 57.081, Florida Statutes.
Specifically, section 57.081(a) requires litigants
fees of the courts,
seeking an indigency waiver of
sheriffs and clerks to file an affidavit. that claims the
appli~t's fmancial condition, a statement that certifies
no person has been paid or promised any payment of any
reuneration by' the applicant for services performed on
behalf of the applicant in connection with the action or
p~ing. Glaringly absent is the imposition of a partial
filing fee before proceeding (in the event the prisoner has
some funds) and the burdensome lien. Even more
important is the absence of discretionary authori~ th~t
permits the courts, upon a determination. that ~ p.lea~m~ IS.
frivolous, to send that finding to the prisoner s mstltutlon
for disciplinary action.
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In light of this recent decision by the FlOrida
Supreme Court, the questions of whether prisoners ca.n
recover the minimal funds they had collected from theIr
inmate accounts and whether they can have court-imposed
liens removed from their accounts, remains open. Since
the Flori~ Supreme Court has construed the PIS it has
essentially defined what the statute has always meant, i.e.
no partial payments or liens.
In Rivers v. Roadway Exp.. Inc.. 114 S.Ct. 1510
(1994), the U.S. Supreme Court held that it is the Court's
responsibilitY to say what a statute means, and once the
Court has spoken, it is the duty of other courts to respect
that understanding of the governing rule of law. The
Court continued by saying a judicial construction of a
statute is an authoritative statement of what the statute
meant before as well 'as after the decision of the case
giving rise to that construction. In other words, when
Congress enacts a new stab.te, it has the power to decide
when the statute will become effective. But when the
Supreme Court construes a statute, it is expla~ning its
understanding of what the statute has meant contmuously
since the date when it became law. Thus, under Rivers,
the Florida Supreme Court's construction of the Prisoner
Indigency Statute defines not only what it means to
prisoners now, but what it has meant continuously since
its enactment.
While it is clear that prisoners should not have
been required to pay partial payments nor had 1i~ns
assessed against their inmate accounts, what remams
unclear is what remedies are available to right the wrong.
Sound familiar? See: Schmidt v. Crusoe. 28 Fla. L.
Weekly S367 (Fla.5/I/03).

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[Note: Although not at issue in the above noted case,.the
same principles would apply to fees and costs on act!ons
challenging Parole Commission decisions that result 10 a
prisoner remaining in prison longer.] •

Fighting the Telephone Stranglehold
FPLP has beeti reporting about the existence of
the Families Against Inflated Rates (FAIR) Campaign.
Recently, FAIR fmished the design and printing of the
first batch of FAIR Campaign Action Packets. The
packet, available free to Florida state prisoners' families
and friends, contains two informational brochures, two
complaint forms, and a fonn to join the FAIR Family
Quick Response Network.
The farst brochure is to inform prisoners' family
members and friends who are affected by the Florida
Department of Correction's and MCl's telephone rate
stranglehold how to fight to achieve FAIR phone. a:at~.
That brochure highlights some of the successes famlhes 10
other states have had in their battles against prison phone
monopolies. It details how to complete the easy-to-fil~ut,
included complaint forms and send them to the Flonda
Public Service Commission and Department of
Agriculture and Consumer Services. It also details the
importance of contacting your local state representative
and senator and devotes a panel to "Talking Points" that
can be emphasizc!tJ to those legislators or to local
newspaper editors.
The second brochure, entitled "A Plea to State
Legislators,» that can be sent to local legisl~tors, ~utlines
how the current prison phQlle system works 10 Florida and
the problems with that system. It contains quotes from
family mem\lers and the media to show legislators why
relief from the exorbitant cost of prisoners' collect phone
calls is needed by their families and friends.
The
brochure pushes for thri:e viable solutions: (I) eliminate or
drastically reduce the current 53% commission that the
FDOC receives on the calls; (2) implement statutes or
administrative rules that requires the prison phone contract
to be awarded to the company that guarantees the lowest
rates to families; and/or (3) allow prisoners to make calls
to lower rate toll-free numbers maintained by their
families.·
The FAIR Family Quick Response Network form
requests contact infonnation from· prisoners' loved ones
who wish to be. notified by FAIR Campaign staff when
they can participate in an organized extra effort to send
letters or emails to targeted legislators or public officials
as the FAIR Campaign continues. That network will be
espeCially important when the legislature goes into session
again, if relief has not already been obtained. That form
also allows family. members and friends to send FAIR
staff names and addresses of other people who they would
like an Action Packet sent to.

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The FAIR· Campaign has several initial goals.
The FAIR staff is sending every Florida Legislator one of
the above mentioned legislative brochures. That brochure
is also being sent to state officials who have the power to
implement rules and policies that mandate FAIR prison
collect-call phone' rates for families. Most importantly,
the FAIR Campaign wishes to establish contact with and
organize all prisoners' .loved ones iAto an alliance working
together for lower pri~n phone rates. That is w~ere the
real power lies. With Florida's 75,000 state prlsoner~,
who have an average of six telephone numbers on theIr
authorized phone lists, that is 444,000 households of
taxpayers who are being unfairly gouged by the
outrageous collect-call rates.
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By design, our government system IS
representative of the people. FPLAO Chairperson Teresa
Bums Posey was once told by a state legislator that he
understood.a problem existed, but his office had received
no complaints to justify action on his part. Legislators
need to be equipped with letters, emails, complaints to
read in debate to convince fellow legislators that members
of the public, taxpayers and constituents, are crying out
for relief. Public officials need the same to justifY their
taking action. FAIR needs your help and participation so
that our voices are heard and acted on. Prisoners: Send
FAIR the names and addresses of people on the outside
who you want us to send an Action Packet to. Famil~
members and friends: write to the bel~w address or email
us to receive your free Action Packet. You do not have to
be an FPLAO member to receive a packet or participate in
the FAIR Campaign, although we certainly encourage you
to become a member of'F~LAO, which has proven we
don't just talk about problems - we take action:
The FAIR Campaign, a project of Florida
Prisoners' Legal Aid Org., Inc. (FPLAO), needs financial
help too. While there is no charge ,for the.Action.Packets,
there are printing and postage costs assocIated with same.
Any donations, of any amount, will be appreciated to help
keep the CamPaign going until relief is obtained.
Donations are tax-deductible~ If you can't afford a
donation right now, we can always use a' few postage
stamps, and that's an easy way to help, especially for
prisoners. Those who have already sent donations and
stamps, thank you very much.
If something hasn't already been done by then,
FAIR fully intends-to make a big push for change at the
2004 legislative session. Let's rally our forces to make
that push. Have an Action Packet sent to your family and
friends today and/or have them participate in the FAIR
Online Email Campaign at :
www.fplao.orgIFAiRCampaign.
. Alone, none of us can do much; together we can
achieve lower rates for everyone. Spread the word today!
FPLAO, Inc.
FAIR Campaign

Perspectives
P.O. Box 660-387
Chuluota, FL 32766
Email: info@fplao.org •

Florida's Female Prisoner:s
Florida Statutes s. 944.24(3), also known as the
"Corrections Equality Act," provides that:
Women inmates shall have access to programs of
education, vocational training. rehabilitation, and
.substance abuse treatment that are equivalent to Ihos~
programs which are prOVided for male inmates. The
department shall ensure that women inmates are given
opportunities for exercise, recreation, and visitation
privileges according to the same standards as those
privileges are providedfor men. Women inmates shall be
given opporlUnities to participate in work-rel~~e
programs which are comparable to the opportumtles
provided for male inmates and shall be t:ligible for early
release according to the same standards and procedures
which male inmates are eligible for early release.

Because of the relatively small number of them
compared to the overall number of prisoners, the female
prison population receives little individualized att~tion.
What attention that population has had focused on I~ and
which mostly exists only within the corrections
community in the form of studies, is seldom. b~ought to !he
public's attention or is cl?uded by the public s perceptIon
of female prisons and prIsoners a stereotyped m p~pular
culture by bad B movies. It's easy to overlook or Ignore
the fact that often incarceration is only the latest form of .
victimization for many female prisoners, many of whom
have been victims for much of their liveS. Although
numerous studies and statistics show that women and girls .
caught up in the criminal justice and prison system are
there, for the most part, for ~ons and circumstances that
are distinctly different than those of male prisoners, prison
officials have only reluctantly acknowledged·that fact.
Fortunately, in Florida, there has been some
progress towards recognizing that f~le prisoners ar:e
different and have different needs and ISSUes than theIr
male counterparts. Yet, change has been slow in coming
and has been a battle against entrenched prison officials
who appear to shun any outside ov~ight or rehabil.itive
efforts that may result in prison population reductIons.
And disturbingly, recent statistics show a new tren~ to
target and incarcerate more females as fuel for prIson
system expansion.
.
Since its inception in 1995, the Flonda
Corrections Commission has displayed a laudable interest
in female prisoner issues and has been a catalyst for some
needed and beneficial policy changes as affects that
population.. The Commission functions as an independ~t
committee appointed to oversee and report to the Flonda

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FLORIDA PRISON LEGAL

Legislature on selected areas of operations of the Florida
Department of Corrections. Early on the Commission
apparently realized that female prisoners were unduly
suffering as an almost forgotten minority.
The Corrections Commission has consistently.
reported on female prisoners and their conditions of
confinement since 1995 and suggested (which is the limit
of the Commission's authority) some rational policy
changes that the Department of Corrections has nOt been
able to completely ignore. For example, in 1997 the
Commission reviewed the issue of the distance between
where female prisoners were located and where they call
home. That review found that 60 percent of female
prisoners located at two North Florida prisons were from
Central or South Florida. The Commission reported that
to the Legislature, pointing out the burden the longdistance separation places on incarcerated mothers with
.their children and families. and suggesting that one of the
North Florida female prisons be converted to a male
prison and that a South Florida male prison be converted
to one for females. With the support of several outside
groups that suggestion was implemented by prison
officials.
The Commission was also instrumental in
influencing the Department to create an Advisory
Committee for Female Offenders to address issues
peculiar to the female prison population. However, the
Department so far has resisted the Commission's
recommendations that the advisory committee be
expanded to include individuals not employed by the
Department with expertise OD sexual abuse, domestic
violence, and other female issues.
including
representatives from other agencies like the Department of
Children and Families and Department of Health. The
Commission has been recommending that expansion since
\<)9L) \0 no avail.
CurrentlY there are five major female prisons in
Florida: Lowen Corr. Inst., Broward Corr. Inst, Dade
Corr. Inst.. Hernando Corr. lost., and Gadsden Corr.
Facility which is privately operated. In addition to an
8JU1el( facility at Lowell Corr. Inst., and a bootcamp for
youthful female prisoners, there are three female work
release centers, Hollywood WRC, Atlantic WRC, and
Orlando WRC, and one work camp. Levy Forestry Camp,
located around the state.
Since 1990, female prisoners in Florida have
averaged between five and six percent of the total prison
population. During that same period the female prison
population has increased a total of 60 percent while the
male prison population increased 73 percent.
Disturbingly. however. statistics show that between June
30, 1999 and June 30, 2002, the female prison population .
increased at a rate of 21 perCent while the male population
only increased 6.S percent That staggering increase in the
percentage of females imprisoned was attributable to an

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increase in the number of women and girls sent to prison
for non-violent drug crimes.
. In fact, the largest proportion of Florida's female
prisoners, over 30 percent, are incarcerated for drug
offenses. On June 30, 2002, the female prison population
was 4,389, and as of September 2002 it was 4,472, and
continues to incrementally inch upwards. The Department
of.Corrections projects that by 2006 there will be over
5,000 females imprisoned· in Florida. Which is not
surprising, considering that the recidivism rate for female
prisoners is comparable to that for Florida male prisoners,
approximately 45 percent of those imprisoned have a prior
commitment, a deplorable indictment of the Department
of
Corrections'
warehousing-over-rehabilitation
philosophy.
[Sources: Fla. Corrections Commission Annual Reports,
1995, 1997, 1999, 2000 and 2002; FDOC data and
statistics.] -

Don't Always Believe What You
Think You See
The believeability of an eyc;witness in identifYing a
criminal suspect is enhanced by how confident the
eyewitness is that the right suspect has been picked. But
new evidence about how impressionable people's
memories really are has some experts questioning just
how reliable eyewitneSses really are.
In a recent study conducted at Iowa Stale
University 25) participants watched a staged crime video
and then were asked to pick the crime suspect out of a sOlman lineup. although the suspect in the video was not one
of the six in the lineup. Not aware they were mistaken,
those who pick a suspect out of the lineup were then told,
"Good, you identified the suspect," which tended to cause
the eyewitnesses· to further overstate their confidence,
remember even more details, including the picked
suspect's facial features. Their false certainty held
whether they heard the confirmation immediately after the
lineup or a full 48 hours later.
Researchers in the study concluded the
eyewitnesses' confidence in picking a suspect from a
lineup can be tainted by comments made to them by the
police condUCting the lineup. The Iowa researchers
suggested that comments about the suspect should not be
made to the identifYing witness to avoid tainting their
future testimony.
The report appears in the March 2003 Journal of
Experimental Psychology: Applied. -

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

Death Row Appeals Office Receives
The Death Penalty
During the recent budget fracas, Gov. Jeb Bush
pitched his plan to eliminate the Capital Collateral
Regional Counsel, an office paid by the state to defend
death row inmates in their post-conviction appeals, as a
way to cut costs and speed appeals. The CCRC, as it's
known, has three offices in the state: Tallahassee, Tampa
and Ft. Lauderdale.
Not long after"Bush's plan was announced, the
Ta1lahassee office received a lethal injeCtion by the
Florida. Legislature,and it doors were closed. The Tampa
and Ft. Lauderdale offices will surely be next.
The CCRC employs about 50 lawyers whose sole
purpose is death row 'appeals. If those lawyers are
overloaded or there are conflicts, cases are filtered to a
state run registry of private attorneys. Gov. Bush believes
'death row inmates will receive more· competent and
prompt attention from registry lawyers; Lawyers, judges
and legislative evaluators disagree. They cite errors made
by private lawyers unfamiliar with death penalty litigation,
the lousy pay that leads them to do a minimum of work
and the effective job done by CCRC.
In the past few years, serious questions have
surfaced about the number of innocent people on death
row. Florida has more constitutional challenges to the
death penalty than any other state, resulting in 25 death
sentences reversed in the last 30 years.
The CCRC was first established in 1985 by Mark
Olive, a principal architect, and Palm Beach Public
Defender Steve Malone. It became a national model,
replicated in California and Tennessee. Now it has
became a victim ofit's own success.
In a state that is so determined to put prisOners to
death, they should be just as committed to making sure
they have good representation. They won't be able to
ensure that if they dismantle the CCRC, according to
attorney Jo Ann B. Kotzen of West Palm Beach.
[Source: Tampa Tribune, 612/03] •

If You Put Me In There, I'll Die!
Another Florida prisoner has died as a result of brutality
by corrections officers, but like the past, it was~accidental7
The latest prisoner, Larry Germonprez, was pinned down
on his bed so hard by detention deputies in Pinellas
County his ribs were broken in 17 places. According to
the State Attorney's Office, he died ofasphyxiation.
It took detention guards seven minutes to
determine that Germonprez had stopped breathing. PascoPinellas Medical Examiner Jon Thogmartin, whose office
conducted an autopsy on Germonprez, said resuscitating
anyone who has gone without oxygen for four minutes or

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

longer is "very difficult," and that the brain at that point is
badly damaged.
Despite the apparent unusually extreme use of
force and obvious physical damage and a lack of
attentiveness, the guards were cleared of any charges.
In two other cases since December, Pinellas
County's top prosecutor has cleared law enforcement
officers in a. suspect's death that an autopsy says was
caused by a struggle wjth the guards entrusted with the
care, custody and control of the suspects.
, While in jail Germonprez began ~uffering from
alcohol withdrawal according to a jail nurse. He was
placed in a small cen for isolation and observation and he
became claustrophobic. The nurse in charge decided to
move Germonprez to a larger cell. When the door was
opened to move him, he rushed the door and was taken to
the floor by jail guards and handcuffed.
Germonprez calmed down momentarily· according
to officials, but suddenly grabbed the door handle to a jail
ce1l when guards again pinned him down. Before he was
forced inside, a paramedic overheard Germonprez say, "If
you put me in there, I'll die."
[Source, Tampa Tribune, 5120/03] •

Supreme Co~rt Suspends Five
Florida Lawyers
The Florida Supreme Court suspended five Tampaarea lawyers for violations that include pocketing
thousands of dollars in illegal fees, keeping a clientS
money without providing agreed upon legal services and
providing poor representation.
Throughout the state· 15 lawyers were disciplined:
I I were suspended, three disbarred and one reprimanded.
Lawyers Nathaniel Tindall of Tampa. Mygnon
Ch~pion Evans of Lakeland, and George Kicklliter of
Clearwater were each suspended for 30 days. Wayne
Phillips of Clearwater was suspended from practice
indefinitely, and Gerald Tavares of Tarpon Springs was
suspended for 91 days.
[Source: Tampa Tribune, 4/30103] •

Female Prison Guard Killed
A female prison guard supervising five male
prisoners as they worked on renovating a dormitory at
Charlotte Correctional Institution was attacked and killed
during an escape attempt by three of the prisoners June I I,
2003, according to state officials.
Killed was Darla Lathrem, 38, a rookie prison
gUard who had worked for the Florida Department of
Corrections (FDOC) for only a year and had nol yet fully
completed a probation period towards becoming a

6----------------

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

correctional officer. Two other prisoners, who apparently
were present when Lathrem was killed, were themselves
injured and hospitalized in critical condition following the
incident that happened on a Wednesday night.
FDOC officials refused to release much
information following the incident as the Department's
spokespeople went intospiri control mode trying to divert
attention away from questions why a lone female rookie
officer was in charge of five prisoners, at night, in a
dormitory where no other guards or prisoners were
present.
_
According to prison officials, no Qne knew
anything until guards spotted prisoner Dwight Eaglin, 27,
scaling a fence at the prison with a makeshift ladder about
10 p.m. the night of June II. Eaglin, once a professional
boxer who won the state welterweight title in '1996, and
who is serving a life sentence for the fatal stabbing of a
man in Pinellas Park in 1998, was caught between the two
razorwire-encmsted, fences of the prison. Lathrem's body
was found a short while later, but officials refused to say
where she was found, who found her or how she died.
Gov. Jeb Bush commenting on the incident to the media
the next day said that Lathrem "was bmtally murdered
with a sledgehammer." The Florida Department of Law
Enforcement was called in to investigate the apparent
murder.
Two other prisoners suspected of being in on the
escape plot, and who were among the fIVe under
Lathrem's supervision, were found in a dormitory. The
FDOC did not release their names or the names of the
other two prisoners who were apparently beaten for not
going along with the escape.
Details were scarce as investigators from the
FOLE and state attorney's office tried to piece together
the links between the attempted escape and Lathrem's
,death. Prison officials admitted Lathrem was left alone
with the fIVe prisoners, including Eaglin, who were
working on renovations to a closed dormitory. The
prisoners apparently had access to tools, like hammers and
screwdrivers. However, in media reports released to the
public, FDOC spokesman Sterling Ivey claimed that it's
routine for prisoners to work at night on work crews.
According to FPLP sources that is not true, and in fact
FOOC policies prohibit prisoners with high security
ratings, like Eaglin with a murder conviction, from being
out of their assigned housing dorinitory at night without
being handcuffed and shackled.
The South Florida prison, often cited by prison
activists as being one of the worst in the state for guardon-prisoner and prisoner-on-prisoner violence, was locked
down, with all prisoners confined to their cells for several
days following Lathrem's death. The three prisoners, who
officials claim were in on the escape plan, were
transferred the next day to Sumter Correctional Institution,
according to FPLP s,ources, although law enforcement

Perspectives - - - - - - - - - -

_

officials would not reveal their location to the mainsteam
media.
At the time of this report, prosecutors are
expected to be filing chargeS against the three prisoners.
FDLE spokesman Larry Long commented, "What you~re
looking at 'is a homicide in the commission of a crime,
escape from a corrections facility. That alone is enough
for a capital case."
Media reports highlighted the FOOC's noting that
Lathrem was the fU'St guard ki,Ued on duty in a Florida
prison in 16 years. No mainsteam media outlet compared
that to the significant number of state prisoners who are
killed every year in Florida prisons by guard-on-prisoner
violence or through medical neglect.
According to some prisoners from around the
state, tensions are increasing inside the prisons. They cite
a wide range of reasons for that, including an increase in
verbal and physical abuse by guards, increasing frustration
over restricted movement and mlesdesigned only to
harass prisoners at many prisons, increasing efforts to
restrict their ability to communicate, with their families,
and an increasing number of women and persons not
suited to be prison guards being hired by the FDOC to
work in· the prisons. UnfortunatelY, while violence is the
worst solution, many prisoners say it may be the only
solution where their access to the courts for relief is now
largely obstructed by laws pushed for, or policies
implemented, by prison officials, added to Florida's
naturally prisoner-biased state and federal court systems.
[Sources: Sarasota Herald-Tribune, 6113/03; AP reports;
FPLPsources.] •

Update: Guard Killed
One ot: the two inmates who were also beaten during
the June 11 escape attempt at Charlotte Correctional Inst.
. when prison guard Darla Lathrem was killed has also
died. Inmate Charlie Fuston, 36, who suffered major head
injuries during the botched escape attempt, died June 13 at
Lee Memorial Hospital. Fuston was serving a 30- year
sentence for burglary and aggravated battery with a deadly
weapon. Fuston's family has expressed upset at prison
officials who have refused to publicly admit that those
prisoners attempting to escape injured Fuston while trying
to help Lathrem fend off an attack. "The warden said to
me: 'Your brother was a victim in this and was trying to
help one of ours,''' Fuston's sister. Rosie Fuston. said. "It
upsets me that they are not telling people what my brother
did." (See article in this issue of FPLP for full story on the
attempted escape and guard killing.)
[Sources: Fort Myers News Press, 6/23; St. Petersburg
Times, 6/23/03] •

7

'

FLORIDA PRISON LEGAL

FAIR Campaign Update

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

Feds Incarcerate Most Prisoners
Two years ago the federal Bureau of Prisons
(BOP) had the third largest number of prisoners
incarcerated in the U.S., with 142,530 prisoners. The
Texas prison system was the largest at that time with
167,000 prisoners, and California had the second largest
system then with 162,000- prisoners. The feds, however,
in just two years has now become the largest prison
system ~ the nation.
In Nbv~ 2002, it was reported that the BOP had
164,011 people imprisoned. At the same time, with
recent reductions in their prison populations, the Texas
sYstem feU to second place with 161,387, and California
fell to third place with 146,496.
According to Eli Gage, publisher of Co"ec/ions
News, there's an explanation for the surge in federal
prisoners. . "While individual states have been
suspending prison construction, scaling back mandatory
sentencing, laws, and exploring 'alternative sentencing,
the BOP has continued to build and quickly," wrote
Gage.
In Fiscal Year 2001 the BOP received $883
million for federal facilities nationwide. In 2002 the
administration proposed spending $1 billion for BOP
construction and an additional $3 I. million for new
Immigrat~on and Naturalization (INS) detention facility
constructIon. •

The Families Against Inflated Rates, FAIR, Campaign
is getting offto a good start. FPLAO staff have mailed or
distributed hundreds ofthe Action Packets that outline and
provide the materials for prisoners' family members and
friends to participate in the campaign to obtain lower, fair
prison collect-call phone rates.
We are aware that people who have filed the complaint
fonos included in the Action Packets to the Florida Public
Service Commission and Dept. of Agriculture and
Consumer Services are receiving letters back from those
agencies claiming they have no power to do anything
about the phone rate monopoly and ad~ising people to
contact the Department of Corrections about the problem.
Of course, the DOC has no intention of reducing the rates.
And the Public Service Commission and Consumer
Services are being less than honest about not being able to
do anything; they are simply passing the buck right now.
Actually, the Dept. of Agriculture and Consumer
Services has authority to protect consumers from
monopolistic gouging, whether a company or state agency
is doing that gouging. Of <;ourse, they will not want to go
against another agency, but we, believe they will when
they get enough complaints from family members.
The Public Service Commission haS, by law,
"exclusive" authority to regulate telephone services and
contracts betWeen state agencies and phone companies in
Florida. Se~tions 364.01(2) and 364:19, Florida Statutes.
The PSC also has a statutory responsibility to ensure all
consumers in Florida have access to reasonably and
affordably priced telephone services, that any monopoly
phone services are fairly priced, and to protect the public
by eliminating any policies, that create an unfair
monopoly. Section 364.01(4), Florida Statutes. With such
exclusive power and responsibilities it is obvious the PSC
1)as the authority to make the DOC ensure fair, reasonable "
rates to prisoners' families.
Aaditionally, many family members who have
contacted their legislators about the DOC's phone rate
scam are receiving copies of letters sent from the DOC to
those legislators claiming the rates must be high'to cover
the "high" costs of the security features on ~e prison
phone system. That is simply a lie. The cost for the
security features are covered in the 47% of the rates
charged and kept by MCl, which has the contract for the
prison phone system in Florida. Security features are not
paid for out of the DOC's 53% cut on the rates. The DOC
is collecting millions, almost $19 million last year, as its
cut on the calls, and none of that is spent on the claimed
security features.
We need to keep the complaints flowing to the PSC,
Consumer Services, and legislators. To get a FAIR
Campaign Action Packet see the notice in this issue about
the campaign. _

Inmate Population Record High
The U.S. prison population has topped 2 million
for the fIrst time. The federal Bureau of Justice
S~tistics an arm of the U.S. Department of Justice,
estImated that state and federal jails and prisons held
2,015,475 prisoners as of June 30, 2002. That's a 2
percent increase over the first six months of the prWious
year.
The record numbers were driven by' a S.4
percent i~crease in local ~ail prisoners and a 2.8 percent
mc~ease m the federal prtson population. State prisons,
whIch ~CCOU?t for the bulk of the nation's prison
population WIth about 1.2 million prisoners, increased
about 1 percent.
At the same time states such as California and
Texas showed declines, as new parole policies designed
to ease overcrowding pennitted thousands to be released.
The. rate of incarceration in America - 702
prisoners per 100 ,000 res'idents - continues to be the
highest in the world. - In 200I, Florida had 72 007
prtsoners. In 2002, that number rose 2.1 percent' to
.73,553. Currently, Florida has over 75,000 prisoners.

.

[Source: USA Today, 417/03; FDOC records] -

8

FLORIDA PRISON LEGAL

Populat~01!

JUST THE FACTS

of state prIsons
State
Ala.
Alaska
Ariz.

Ark.
Calif.
Colo,
Conn.
Del.

o.c.
FIa.
Ca.

Hawaii
Idaho
III.
, Ind.
Iowa

«an.
Ky.
La.

Maine

Md
Mass.
Mich.
MiM.
Miss.
Mo.
Mont.
Neb.
Nev.

N.H.
N.J.
N.M.
N.v.

Not.
N.o.
Ohio
Olda.

Ore.
PeM.

R!

s.c.
s.o.
Tenn.
Texas
Utah
Vt.
Va.

Wash.
W,Va.
WIs.

27,286
4.197
27.136
12.332
163,965
17,122

27.495 0.8%
4,205 0,2%
29.103 72%
12,655 2.6%
160,315 -2.22:
18.320 7.0%

18,875 20243

72%

7,122
5.388
72,007
45,363
5,412
5,688
45,629
2Q,576
8.101
8,543
15,400
35.494
1,693
23,970
10.734
48.371
6,514
20.672
28,167
• 3,250
3,944

6,957 -2.3%
3,023-43.9%1
73,553 2.1%
46,417 2.3%
5,541 2.4%
5,802 2.0%
43,142 -5.5%
21,425 4.1%
8.172 0.9%
8,758 2.5%
16.172 5.0%
36.171 1.9%
1,841 8.7%
24,329 1.5%
10.620 -1.1%
49,961 33%
6,958 6.8%
22,001 6.4%
30.034 6.6%
3.515 8.2%
4,031 2.2%
10291 1Q,426 13%
2,323 2,476 6.6%
28.108 28.054 -0.2%
5,288 5.875 11.1%'
69.158 67.131 -2.9%
3\.\42 32,755 52%
1.080 1.168 8.1%
45.684 45.349 -0.7%_
23.139 23,435 13%
11,077 11,812 6.6%
37,\05 39,275 5.8%
3,147 3.694 17.4%
22,267 23.017 3.4%
2,673 2.900 8.5%
23,168 24,277 4.8%
164,465158.131 -3.9%
5.440 5,353 -1.6%
1.782 1.784 0.1%
30,473 32.739 7,4%
15,242 15,829 3.9%
4.130 4.488 8.7%
20.931 21.978 5,0%
1.679 1.732 3.2%

UOl":
COnnrrtlall.
_ _ AlAtI<.i.
IJWld _~L1w.re,
Yrnll<lllI
ftaum 1I&w~1I.
IJl.
_ _ inloW cllYond RlUllly ).Ills.
Ind~

1'~"lI"numbet'ofPf\S01lfltWl!fflransrmtd

CDl'Idrl'~r.culltnln2Oll2.

!l<lUfCe: Asto<Ulod Pl\'SS

Perspectives - - - - - - - - - - - . . . . ; - - Researchers are developing new trocrtmentsfor HCV-proteGso, helicaso, and
poIymeraselnhibiton. SimUar to HIV
anllviral agents, they wiD worIc to bIodc
enzymes involved In HCV replication.

Hepatitis C
Hepatitis literally means "swo11en liver."
Hepatitis C(HCVlIs one of five lA. B, C, D,
and E) viruses that cause the condition,
which can alJo result from nOnviraI causes
such as alcoholism. HCV attacks the Iivet,
the organ that detoxifies drugs, alcohol,
and enviranmontal palsons, dlspasos of
worn-out blood cells, and aids in digestion.

-COMPIlED IV EMIlY BERGEIlON •

HCV was first rucogniud as a distinct form
of hepatitis in the late 19601. At that timo,
scientists IodcecI a sophisticated method to .
identify the causative agent and referred
to the disease as linen-A, non-Btl hepatitis.
It was identified in 1989 using teehntqves
dewloped in HIV research to done p0rtions of the virus's RNA. The virus itself has
stiD never been seen.

Now AVAILABLE!
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one chapters by over two dozen
social crttfcs, academics, Investigative reporters and prisoners,
Prlson Nation covers many of
the Important Issues related to
how over 2 million people· are .
Imprisoned In the United States
at any given time and how they
are treated whUe In C1JStody.

Mare than 4 times as many people are In-

fected with HCV than H1V-thent are an estimated 170 nu'1llon HCV sufferers woddwide.
HCV infection is the leading reoson for liver
transplants. As many as 70 percent of
victims develop chronic liver disease.

"AD atraordlDary' coUedIon of

essays by sOme of our most asCute
observers of the American prison
system." Howard Zinn," author of A
People's History o/the UniJedStoles.
"••• 111 iosprfDgbook, Infoiog eq,dus'

Symptoms can taka 10 years to appear,
and include fatigue, jaund1ce, dade urina,
abdominal pain, loss of appetite, and
nausea-but most InfedecI people exhibit
no symptoms. Transmission is through
blood and blood produds.lnlrcMmaus drug
use CGV18S 60 percent of aU new casos.

Ii1OII1e ~ die

IIIO!It fmpol'tBDt wmk by
cIaam ~ """"hid sddIrs aDd . . .
...." H. Bruce Franklin, lIUIIuofPrison
~in2Olhd.ntuyMrerim .
Only $19.95 plus $5 ~ (264 pgs. paper)

Despite ~... In the number of peopJo
being diagnosed with HeY, new Infections

.have actually decreased by more than
80 percent since the virus WCIJ idantlflad_
Blood scroening tests and procedU1'81
used to IciII the virus have helped to .
; reduce new iilfection~

~LegalNews

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seattfe, WA 98117 Or order with a Visa
or MasterCard by caJllng206-781-6524

the virus mutates. By varying its structure, it has evolved into six known
genotypes and more than 50 subtypes.

Although there is no vaccine for HeY,
a cambincitIon of the drugs interferon
and ribavirin admlnlslered for 6 months
to a year Is the Iroatment of choice. In. terferon anhances the Immuno system
and n'bcMrin . . HCV's repllcatIon.
With treatment, tha virus can be ,radlcated from the body-but treatment I.
effective In lust 30 to 50 percont of patients. Tho side offacts-rat!gue, Ru-lib
symptoms, and depressJon-can be sa
severe many patients cease troatment.
By atladting a subStanco known as paIyethylene glycol (PEG) to the Interferan
molecule, r8searthen have mod1flod and
hnprowcllnlerferan. Tho new wnIon,
called peg)iated interferon, Is better at
fighting the virus because it stays.1n the
body longer than stondard interferon.

ADVERnSING NonCE
Due to

II

concern for our manbcrs. the FPLP SUIff

tries to ensure that advertisers in these paps ore
. rcput4ble and qualified'to provide the services being
oft'cred. We ClIIIIlol meet nay advcr1iser. howeVer.
10 members are advised to a1W1)'1 personally contact
advatiscrs Cor ftInher information on their
qualiflc:ations lIIId cxpctIencc before IllAking a
declslon to hiJe an attorney or other professional
service provider. You shculd never saul tepI or
other docwnents to lIIl advertiser tefore contacting
than and reccMil8 directions to send such mataia1.
For those wishing to advertise in FPLP. please write
for nlO information. Address such mail to:

9-----

Florida Prison Legal Perspectives
Attn: Advenising
P,O. Box 660-387
Chuluola, FL 32766
Or
Email: FPLP@aol.com

_

. FLORIDA PRISON LEGAL

Perspectives

POST CONVICTION CORNER

by Loren Rhoton, Esq.

When one facing criminal charges is making a decision about going to trial. ari important
consideration is whether any type of plea offer has been extended bythe prosecution. Sometimes
defense attorneys do not effectively represent their clients in this aspect of the representation. A
plea may not have been relayed to a client because the attorney assumed the client would not
accept the offer.. Other times the attorney may relay the plea but either not inform, or misinform.
his client about crucial aspects of said plea. In either case, such a defendant does have recourse
via a Florida Rule of Criminal Procedure 3.850 Motion for Post Conviction Relief. A guilty plea
is not voluntary or intelligent if advice given by defense counsel, and on which a defendant relies
in entering a plea. falls below a level of reasonable competence such that the defendant does not
receive effective assistance of counsel. U.S. v. Loughery, 908 F.2d 1014 (D.C. Cir. 1990).
To effectively represent a client in a criminal matter, an attorney has the duty to
adequately counsel his client as to the advisability of accepting or rejecting a plea offer from the
. State. Failure to fully advise a client of the mmifications of accepting or rejecting a plea offer
can constitute ineffective assistance of counsel. See Young v. State, 625 So.2d 906 (Fla. 2d
DCA, 1993); Wilson v. State, 647 So.2d 185 (Fla. 1st DCA, 1994). Courts appear uniformly to
hold that the failure of trial counsel to communicate or to communicate correctly the facts and
merits of a plea barg~in offered by the State may warrant postconviction relief to a criminal
defendant. Young v. State, 608 So.2d 111 (Fla. 5th DCA, 1992).
The misadvice of an attorney, in the plea context, as to how long the defendant will have
to actually serve on a sentence can constitute ineffective assistance of counsel. Garmon v.
Lockhart, 938 F.2d 120 (8 1h Cir. 1991). A defendant's guilty plea is considered involuntary ifit
is induced by a defense counsel's.promise which is not kept, and a defendant may withdraw his
plea ifhe was misled and induced to plead by his co.unsel'~ mistaken advice. Ricardo v.State,
647 So.2d 287 (Fla. 2nd DCA 1994).
.
Whether or not defense counsel believes his client will accept any given plea offer, said
counsel still has a duty to inform his client of any plea offers. See Fla. R.Crim. P. 3.171 (c)(2).
Counsel's misadvice. or lack of advice, in regards to acceptance of a plea offer can constitute
ineffective assistance of counsel. Boria v. Keane, 99 F.3d 492 (2d Cir. 1996). And, the failure
to timely relay a plea offer to a client can constitute ineffective assistance of counsel. See Cottle
v. State, 733 so.2d 963 (1999). In order to prove that aD attorney was ineffective for failing to
convey a plea offer to a client, the following must be shown: (1) counsel failed to communicate a
plea offer; (2) the defendant would have acc~pted the plea offer had he been properly advised;
and. (3) that the acceptance of the plea ofTer would have resulted in a lesser sentence. Id.
tIn Garcia v. State, 736 So.2d 89 (Fla 4lh DCA 1999), the Fourth District Court of Appeal
for Florida dealt specifically with the issue of ineffective assistance of counsel for failure to
properly relay a plea offer. Francisco Garcia was charged with shooting into an occupied
dwelling and second degree murder. Id. Subsequent to his conviction, Mr. Garcia filed a 3.850
which alleged, inter alia. that his attorney failed to properly inform him of the consequences of
pleading guilty and, thereby. improperly induced, Garcia not to accept the State's plea ofTer. Id.
The trial court summarily denied Garcia's 3.850. Id.
.

10---

•

_

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

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

Prior to trial the State made an offer to Garcia whereby Mr. Garcia would t;Cceive a
.sentence of five and one half years in exchange for a guilty plea. Id. Mr. Garcia acknowledged
that his attorney did relay the plea offer to him, but, only at the last minute. !Q. Garcia further
alleged that his attorney: failed to discuss with Garcia the details and the strength t of the State's
case; urged Garcia not to take the deal because he would succeed at trial; erroneously advised
Garcia that he would get one-third knocked offofany sentence he did receive; and, failed to
advise Garcia that he was subject to a three year minimum mandatory for the use of a firearm.
Id. Mr. Garcja further alleged in his 3.850 that had he been properly advised by his attorney, he
would have taken the plea deal offered by the State prior to trial, and, that he would have served
far less time in prison. Id.
.
On appeal of the summary denial of his 3.850, the Fourth DCA held that Mr. Garcia did
present a facially sufficient claim for ineffectiveness of counsel for failure to relay a plea offer.
Id. at 90. The Garcia Court further noted that in Cottle v. State, 733 so.2d 963 (1999), the
Florida Supreme Court did not provide what the appropriate remedy would be where counsel
failed to timely relay a plea offer to a client. The Garcia Court decided that if a defendant does
establish ineffectiveness of counsel for failure to relay a plea offer, it should be left to the trial
court to "fashion a remedy that 'is tailored to the injury suffered and [do~s] not unnecessarily
. infringe. on competing intercsts:·'ld. at 90, quoting United States V, Morrison, 449 U:S. 361
(1981 ).
Therefore, some sort of relief maybe due if a plea was not relayed by defense.counsel or
if counsel failed to properly explain the plea. In either case, it may be possible to obtain abetter
result via a Rule 3.850Motion. If the plea was never relayed, it may be possible to obtain the
original plea offer ifit can be demonstrated that counsel failed to relay the plea and the defendant
would have accepted said plea. Such a result might be obtained by seeking relief under Garcia
whereby the trial court would fashion a remedy tailored to the injury suffered, i.e., the denial of
the ability to accept the original plea. Ifthe benefit of the original plea offer cannot be obtained,
it may still be possible to withdraw the plea entirely and return to a pretrial posture.
Of course, as with any postconviction venture. I would advise anybody looking into such
a course of action to seriously consider if he or she will be better off with a withdrawal of the
plea. Often pleas are given in exchange for a reduced sentence or a.waiver of the State's right to
pursue sentence enhancements (such as habitual offender. prison releasee reofTender. or
minimum mandatory sentences). Therefore. before any attempt to withdraw a plea is made, 1
strongly advise any such per"on to consider if they will actually be better off if they do pursue a
withdrawal of the plea. If the dangers of withdrawal ofthe plea are not great, or if you are
willing to gamble with your potential sentence. then it may be advisable to pursue a withdrawal
of the plea But. such a decision should only be made after fully investigating the potential
sentence that you are subject to upon withdrawal of the plea.
Loren Rhoton is a memher in good standing with the Florida Bar
and a memher ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area (!(the l{I\r~ hoth tit the State and Federal Lel'el. He has assisted
hundreds ~linc:a,.c.:eratedpersons with their cases and has numerous
written appel/tile opinions.

11---------------

- - - . . , - - - - - - - - - - FLORIDA PRISON LEGAL

CT - Last year MCI WorldCom and
the state of COlU1ectiCUt raked in
$13.3 million by charging the
families of the states' prisoners high
rates to accept collect phone calls
from their incarcerated loved ones.
CT prisoners' have been allowed to
make only collect calls, with their
families paying two to three times
what a typical collect call costs the
public to accept.
The state, by giving the
prison phone contract . to the
company that guarantees the largest
. commission on revenue to the state,
instead of the lowest rate to
consumer families, is receiving 45
percent of the money gouged out of
the families, or about $6 million last
year. That contract is ~ut to expire
and complaints by prisoners' families
about the high rates has the state
looking at ways to lower the rates.
This year the state plans to introduCe
debit calling at one prison as a pilot
project to see how it works.
[Source: Hartford Courant, 10/4/02]

FL - On May 7, 2003, prisoner
Delvan • Barnes, 20, was filtaIly
stabbed during a fight with prisoner
Videl Santiago, 20, at Brevard
Correctional Institution.
Barnes,
who suffeied a large wound to the
abdomen, went into cardiac arrest at
the scene which occurred near the
prison's dormitory area. Barnes was
serving a four-year sentence for
robbery with a firearm or deadly
weapon and burglary out of MiamiDade County. Santiago is serving a
30-year sentence for second-degree
murder from Duval County. The
incident was being investigated by
the Fla. Dept. of Law Enforcement.
lSource: Charlotte Sun, 5/8/03]

_

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I_NE_W_S_B_RIE_"
_F_S
NEWS BRIEFS

Perspectives - - - - - - - -

FL - During May two prisoners
attacked five prison' guards with
horseshoes and wooden baseball bats
on the recreation yard at Washington
Correctional InsQtution, which is
located in the panhandle region of
North Florida. One of the guards
was critically injured. but listed in
stable
condition
after
being
hospitalized at Bay Medical Center
in Panama City. The ·other four
guards were treated for injuries and
released. The two prisoners, Tracey
B. Wright, 31, and Darrell A.
Jenkins, 35, apparently attacked the
guards thinking it would get them
transferred to a South Florida prison,
according to prison officials. Other
prisoners who know Wright and.
Jenkins, however, claim they were
upset
about
recently
being
transferred to Washington CI, which
currently has the worst reputation in
the state for. prison guard abuse of
prisoners. FDOC officials claim that
some inmates who tried to help the
guards as they were being beaten
were transferred to protect them from·
repri~ from other prisoners.' Wright
and Jenkins were transferred to
Florida State Prison, the. ~
maximum security prison in
Northeast Florida.
[Sources: AP reports; FPLP sources.]

LA .- During Feb. 03, "Louisiana
State District Court Judge Michael
Caldwell
ordered
LA
State
Penitentiary officials to remove a
block that prevented a prisoner from
making collect calls to his wife's, cell
phone. The dispute arose when
Diane King Smith, who doesn't have
home-based telephone service and
since cell phones don't allow collect
calls to be accepted, set up with
BellSouth Corp. to "remote call
forward" collect calls from her
prison husband to her cell phone.
The service also allowed her to take
advantage of cheaper long-distance

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

rates than those charged by MCI
WoridCom,
which
bas
the
monopolistic prison phone· contract
in LA. When prison officials learned
Smith was avoiding the high rates
they had a phone block placed on
Smith's remote call forwarding
number, prompting Smith to file suit.
The judge found that a rule adOpted
bt prison officials to prolubit
prisoners from using call-forwarding
numbers was invalidly adopted, and
thus was invalid to block calls to
Smith. However, LA prison officials
restarted the rule making process to
validly adopt the rule, scheduled to
be effective March 22, meaning
Smith's victory may have been shortlived. Prison officials claimed they
need such a rule for security reasons
so that they know the address where
prisoners' calls are going. With
remote call forwarding, the person
outside can change the number to
which calls are forwarded to any
location and the prison would never
know. The same is true, however,
with regular call forwarding or when
a person moves but keeps the same
phone number. In LA, under the
MCI WorldCom contract, good UDti1
2007, the state gets a 55 percent
commission on revenues generated
by prisoners' collect calls.
.[Source: AP, 2/21/03]
USA - During June '03 some
prisoners in three California prisons
were put on "fiscally driven
lockdowntt because staffing levels in
the state's prisons are so' low. In
Virginia prisoners now receive only
two meals a day on weekends and
holidays, while the Texas prison
system ,has reduced the daily calorie
intake for prisoners from 2,700 to
2,500 as cost saving measures.
[Source: Newsweek, 6123/03, pg. 54] .

•

- - - - - - - . . . , . . - - - - FLORIDA PRISON LEGAL

I

RHOTON & HAYMAN, P.A.

{f.~

{f.~

~!}
~!~

{f.~

'

:1

'LOREN D. RHOTON
Attorney At Law

~!}

,

Perspectives - - - - - - - - - -

DIRECT APPEALS'
STATE POST CONVICTION
SENTENCE CORRECTIONS
FEDERAL PETITIONS' FOR WRIT'
OF' HA~EAS CORPUS
NEW TIUALS
INSTITUTIONAL TRANSFERS
412 East Madison Street
Suite 1111
Tampa Florida 33602
(813) 226.3138
'..; ·FQ .(81,~).~21 ...Z1~,:.:, ... ~;('·

!~:it'~ ":·It:;:r"'~/'··'"

""; . ',. . ,:;f",'J'(1j;!i::::i

he hiring of a lawyer is an important decision' that should not be based solely on advertisements.

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13 - - - - - - - - - - - - - -

'· NOTABLECAS£S
iii
FLORIDA PRISON LEGAL

•

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;

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~.

,

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PerspectIves - - - - - : - - - - - - - - - - . . . . : - -

~

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.....•

•

BY OSCAR HANSON &. ANTHON'! STUART . i.

The following are summaries ofrecent stale andfederal cases that may be useflll to or I"n'e a significant impact on Florida prisoners.
Readers should always read the full opinion as puhlished ill the Florida Lmv Weekly (FlaLlVeekM: Florida Law Weekly Federal
(Fla.L. Weekly Federal): SOllthern Reporter 2d Series (So.2d): Federal Supplement 2d Series (FSupp.2d); Federal Reporter 3d Series
(F. 3d); or the Supreme COllrt Reporter (S.O.), since these summaries are for general injcJrmalion on(l'.

FEDERAL DISTRICT COURT
Cottone v. Jenne, 16 Fla. L.
Weekly Fed. CS 11 (lIth Cir. 4111103)
Richard Cottone, as personal
representative of the Estate of Peter
Anthony Cottone, Jr. and Peter
Cottone, Sr. (Plaintiffs/Appellees),
sued Kenneth C. Jenne, iI, Sheriff of
Broward County, Florida along with
Deputies D'Elia and Williams,
Executive Director Tighe and other
directors and/or Supervisors namely,
. St. Claire, Watson, and Lawall in
their official capacity at the North
Broward
Detention
Center
(Defendants!Appellants).
In this case the Defendants
appealed to the I ph Circuit Court of
Appeals from their denial in the U.S.
District Court for the Southern
District of Florida of a motion to
dismiss filed pursuant to Fed. R. Civ.
P. Rule 12(bX6) raising qualified
immunity.
After review and oral
argument, the ll t11 Circuit Court
affirmed the district court's ·denial of
qualified immunity for Defendants
D'Elia and Williams, but reversed its
denial of qualified immunity for
. Defendants Tighe, S1. Claire,
Watson, and Law.
•
The background of this
appeal involved the death of Peter
Cottone, Jr. (Cottone) while he was
detained in the North Broward
Detention Center with his assailant
Widnel Charles (Charles).
The complaint
in the
Appellee's action, filed pursuant to
42· U.S.C. section ]983, was that
Defendants D'Elia and Williams, the
guards of the detention facility, were

recklessly indifferent toward him
which created a substantial risk of
serious bodily harm which led to
Cottone's death. This action served
as an Eight Amendment Violation of
the United States Co.nstitution
prohibiting cruel and unusual
.punishment.
Plaintiffs' further
claimed that Defendants Tighe, St.
Claire, Watson, and Law had
supervisory liability for Cottone's
death due the their failun: to train
and supervise deputies and correction
officers under their control.
. In their complaint, the
Plaintiffs alleged and pointed to
evidence that, at the time of the
incident, Defendants D'Elia and.
Williams were observed by cameras
in the control room, (where they
were
stationed
to
monitor
surveillance cameras mounted in the
unit housing inmates with mental
conditions where Cottone and
Charles were being held), playing
and/or watching computer games.
This evidence combined with the
Defendants' knowledge of Charles'
of
violence,
mental
history
instability,
and
schizophrenic
outrages was placed where he could
have contact with Cottone through
unlocked, open cell doors. While the
Defendants
played/watched
computer games, Charles attacked
Cottone by strangling him with
shoelaces.
Cottone was taken to North
Broward Medical Center, where he
died.

Mahone v. ~, 16 Fla. L. Weekly
Fed. C476 (II Cir. 4/2/03)

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

In this case Thomas James
Mahone (Appellant) filed motions
plJrsuant to Fed. R. Civ. P. Rule
60(b) and Rule II in the district
court while his appeal (from the
denial of his civil rights complaint),
was pending in the I 1til Circuit. The
district court had dismissed those
motions based on 'the ,lack of
subject
matter jurisdiction to
consider the motions while Mahone's
appeal was pending.
Mahone. appealed this ruling
and the 11 1h Circuit ruled that the
district court was in error.
As a general matter, the
filing of a notice of appeal does
deprive the district court from
jurisdiction over all issues involved
in the appeal. However, it does not
prevent the district court from taking
action in furtherance of the appeal
nor does it prevent the court from
entertaining motions on matters
collateral to those at issue on appeal.
The 11 th Circuit has held that
a district court does retain
jurisdiction after a notice of appeal
has been filed to entertain and deny a
Rule 60{b) motion because the
court's action is in furtherance of the
appeal. However, the courts do not
posses jurisdiction to grant a Rule
60(b) motion. When a Rule 60(b)
motion has been filed during the
pending of an appeal' the district
court should consider the motion and
assess its merits then deny the
motion or indicate its belief that the
arguments raised are' meritorious.
Then the movant may petition the
court of appeals to remand the matter
so as to confer jurisdiction on the
district court to grant the motion.

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-~----,---------- FLORIDA PRISON LEGAL Perspecuves - - - - - - - - - - - " ' - - - - -

The Sixth Circuit has described this
procedure in Bovee v. Coopers and
Lybrand. C.P.A., 272 F.3d 356, 359,
note.1 (6th Cir. 2001).
The district court also had
jurisdiction over Mahone's Rule II
motion because motion under this
rule raise issues that are collateral to
the merits of an appeal, and as such,
may be filed even after the court no
longer has jurisdiction over the
substance of the case. The decision
was based on the U.S. Supreme
Court opinion in Coo~er and Gell v.
Harlmarx Corp.
Pale v. Peel, 16 Fla. L. Weekly Fed.
0279 (N.D. Fla. 3/31/03)
In this case Walter Lamar
Pate (Plaintiff) filed an action
pursuant to 42 U.S.C. section 1983
against
Apalachee
Correctional
Institution'S (ACI) nurse practitioner
Michael Peel (Defendant) asserting
two claims: (I) that Defendant
retaliated against him for grieving his
denial of a medical pass for bashful
bladder
syndrome
(BBS)
by
removing his existing medical pass
for no - prolonged - standing and
clearing him for assignment to field
work; and (2) that Defendant's
actions
constituted
deliberate
indifference to his known serious
medical conditions. Plaintiff sought
compensatory and punitive damages
for the First and Eight Amendment
violations.
Pate, who suffers from
Human Immunodeficiency virus
(HIV), Hepatitis C, and BBS, alleged
that he requested Peel for a BBS
medical pass and Peel denied the
request. Pate filed a grievance on the
matter, which was also denied.
Later, Pate reported for therapy at the
Chronic Illness Clinic (CIC) of the
Department of Corrections (DOC)
where Peel asked Pate .if he plaMed
to continue the grievance.
Pate
responded in the affirniative and Peel
became short in response and
conveyed a serious attitude.
Subsequently,
Pate was
notified of his job change to field
forc~ work that involved digging up

five hundred pound tree stumps,
bagging potatoes, and throwing the
filled hundred pound bags into the
back of a truck. Pate confronted
classification with his no-prolongedstanding medical pass and inquired
He was .
about the job change.
informed that Peel canceled the pass
and cleared Pate for field force duty.
Later, Pate complained of
severe abdominal pain and swelling
the region of the liver, claimed a
medical emergency and was admitted
to ACI infirmary where he was
transported to two different hospitals
for testing. After being returned and
discharged from ACI infirmary he
was issued medical passes for noprolonged-standing and no lifting or
pulling over twenty pounds and was.
informed that' the tests showed
serious elevated liver enzymes.
In response to Pate's claims
and allegations Peel fiIed a special.
report. The court advised the parties
it would treat the report as a motion
for summary judgment under Fed. R.
Civ. P. Rule 56 and advised them of
the importance of the rule and its
ramifications ifconsidered.
In the report Peel basically
argued and pointed out evidence in
the records that showed Pate's claims .
were frivolous, unfactual, and failed
to bring forth any evidence to show
even a colorable suspicion of
retaliation or a disregarded and
serious risk of harm. That, at most, it
simply demonstrated a difference of
medical opinion. Peel also asserted
his entitlement to the Eleventh
Amendment immunity and qualified
immunity with regard to both claims
and that Pate is not entitled to
compensatory or punitive damages.
Pate filed a reply to the
report. but it failed because as the
court noted the events he described
in it were not relevant to the claims
in his action.
The court discussed the legal
standards
for .both
Summary
Judgment and Qualified Immunity at
length. As to Pate's action, he failed
to ':cntify with any specificity the
allegedly
false
or misleading

statements in the Defendant's report
or the medical records he claimed
Peel did not provide but should have.
He failed to explain how the
statements or omissions of medical
records misrepresented the facts of
the case. Furthermore, the court had
specifically advised all parties that
the special report would be treated as
a motion for· summary judgment
under Rule 56, which provided them
with the opportunity to file motions
for discovery if they wished; the
Plaintiff failed to do so.
The court considered and
addressed at great length the
Plaintiff's claims for monetary
damages and of the constitutional
violations. In conclusion, the court
ruled that because there was no
evidence from which . a jury could
reasonably conclude
that
the
Defendant violated Plaintiff's First or
Eight
Amendment
rights
by
approving him for field force duty,
the court granted qualified immunity
and summary judgment in favor of
the Defendant.
[Editor's Note: The court went into
great detail citing many authorities
and legal standards used in making
their final decision in this case. A
careful reading of this opinion will
provide great insight for prisoners
filing 1983 actions.
The above
federal cases were summarized for
FPLPby Anthony Stuart.]

STATE SUPREME COURT
Slate v. McBride, 28 Fla. L. Weekly
S40 I (Fla. 511 5/03)
Florida prisoner ,Antoine
McBride was sentenced pursuant to a
plea agreement to charges of
attempted first-degree murder. with a
firearm, possession of a firearm by a
convicted felon, and robbery with a
firearm. The trial court sentenced
him as a habitual felony offender to
concurrent thirty-year terms of
imprisonment on each of the three
charges.
McBride committed the
attemptoo
first-degree
murder
offense in May 1990, during which

--------------,---15 ----------------

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

time life felonies were not subject to
sentence enhancement under the
habitual offender statute.
In 2000. McBride. filed a
motion pursuant to Fla. R. Crim. P.
3.800(a) to correct the illegality of
the habitual sentence imposed on his
life felony offense.
TheCourt
denied the motion. and McBride did
not appeal. The following year.
McBride filed another motion under
the same rule asserting the same
argument. Not the successive nature,
and this time McBride appealed.
The Fifth DCA reversed, holding that
the law of the case doctrine did not
bar review by an appellate court and
that the illegal sentence should be
corrected.
While the DCA did
reverse and remand. the Court also
certified a question of great public
importance - a question answ~ by
the Supreme Court. which' quashed
the Fifth DCA opinion.
The Supreme Court held that
McBride was not entitled to relief
pursuant to successive rule 3.800(a)
motion because he raised the same
issue in a prior unsuccessful motion
and failed to appeal. The Court also
noted that the law of the, case
doctrine and the principles of res
judicata did not apply in this case.
However. the doctrine of collateral
estoppel did act to preclude McBride
from rearguing in a successive rule
3.800 motion the same issue argued
in his prior motion where its
application would not result in a
manifest injustice. Based on the
facts ,of this case, the Court held that
collateral estoppel would not result
in a manifest injustice.
STATE APPEAL COURTS

Tedder
v.
Florida
Parole
Commission, 28 Fla. L. Weekly
0100S (Fla. 111I DCA 4/22103)
In this very intriguing case,
• the First District Court of Appeal
addressed the issue whether the
Florida Parole Commission could
disregard ,the finding of a parole
examiner that was based on

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

competent. substantial evidence in
favor of its own.
In' '997, Florida prisoner
Robert Tedder was placed on
conditional release for a term of four
years and 11 months following his
release from prison.
In 2001,
Teddet:'s
conditional
release
supervisor signed a violation report
alleging that Tedder had moved
without first obtaining permission.
Tedder was placed in custody
pending a revocation hearing..
Following the hearing, the parole
examiner found that the evidence
failed to prove that Tedder had. in
fact. moved. Based on that finding,
the examiner recommended that
Tedder be reinstated to conditional
release supervision. Notwithstanding
the examiner's recommendation, the
Parole
Commission
revoked
Ted(jer's conditional release. It did
so after reweighing the same
evidence
considered
by
the
examiner. and found that evidence
sufficient to establish guilt as to the
violation alleged.
The DCA recognized the
basic tenet of administrative law
(subject to limited exceptions not
pertinent here) that an agency may
not reject a hearing officer's finding
of fact that is supported by
competent, substantial evidence.
Based on this principle, the DCA
quashed the trial court's order
denying mandamus relief.

Lindsay v. Stpte, 28 Fla. L. Weekly
01027 (Fla. 41b DCA.4123/03)
,
The Fourth DCA ruled that it
was error for the trial court' to
dismiss motion for post conviction
relief for lack of jurisdiction due to
pending appeal from probation
revocation, where issues raised in
motion dealt with original plea and
resentencing based on that plea.
Further, the issues raised in the
motion were unrelated to the issues
on appeal from probation revocation
and therefore did not divest trial
court ofjurisdiction.

McAr/hur v. Stale, 28 Fla. L. Weekly
01089 (Fla. Sib DCA S/2/03)
The Fifth DCA reaffirmed its
prior ruling in McBride v. State, 810
So.2d 10'19 (Fla. Sib DCA), review
granted, 825 So.2d 935 (Fla. 2002),
that the law of the case doctrine does
not prohibit successive motions
pursuant to rule 3.800(a) if the issue
rais~ had not previously been ruled
upon by an' appellate court. The
Court noted that the decision in
McBride should not be read to allow
a criminal defendant to file
successive motions to abuse the
process and the judicial system.
Wesley v. Slate, 28 Fla. L. Weekly
Dl119 (Fla. 2d DCA Sn/03)
Florida prisoner Kenneth
Wesley appealed the summary denial
of his motion to correct an illegal
sentence. He argued that upon his
imminent release from incarceration,
he would be, placed on conditional
release because the DOC had
improperly calculated his sentence.
Wesley
also
suggested
that
placement on condi~ional release
forces him to serve his sentence in
"bits an~ pieces," thus altering his
original sentence making it illegal
and excessive.
Wesley was incarcerated on
concurrent sentences, one for a crime
committed in 1990, the other for a
crime committed in 1999. The 1990
sentence is "conditional release
eligible,: as determined by the
Florida Parole Commission, but the
1990 sentence is not. In April 2001,
Wesley was notified that the had
reached the end of the incarcerative
portion of his 1990 sentence, based
on accrued gain time, and that upon
his actual release from prison in
April 2003. upon the total expiration
of the 1999 sentence, he would be
placed on conditional release to serve
out the remainder of his 1990
sentence.
In Evam v. Singletary, 737
So.2d SOS (Fla. 1999), the Supreme
Court held that the state may use an
unexpired eligible sentence to
determine the length of the

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

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

conditional release supervision and
then toll the beginning of the
supervisory
period
until
the •
prisoner's ultimate release from
prison. The Supreme Court found
that the legislature instituted the
conditional release program based on
its belief that some . prisoners
remained at risk upon release and
would therefore neied a special, postincarceration supervisory period.
Requiring that they serve their
conditional release while in prison
would not serve this purpose.
Therefore, the Court created the
magical ''tolling mechanism," which
tolls the period of supervision until
the prisoner's ultimate rel~.
Applying this rationale to Wesley's
case the 2 DCA denied relief.
Johnson
\I.
Florida
Parole
Commission, 28 Fla. L. Weekly

0886 (Fla. III DCA4/3/03)
Florida prisoner Fannings
Johnson sought a writ of certiorari to
review an order of the circuit court
that denied his petition for a writ of
habeas corpus.
The,
Florida
Parole
Commission
(FPC)
revoked
Johnson's parole on August 23,
2000. On April 12, 2001, the FPC
established Johnson's presumptive
parole release date (PPRD). On
September 6, 200 I, Johnson
challenged the PPRD by filing a
petition for writ of mandamus. The
petition was ~enied by the· Second
Judicial Circuit Court in Leon
County and affirmed on appeal.
Then on December 10, 200 I,
Johnson filed a petition for writ of
habeas corpus in the county where he
was incarcerated to challenge the
factual basis of his parole revocation.
The Gulf County Circuit Court
denied the petition finding it was a
successive petition to the petition for
writ of mandamus tiled in Leon
County and that habeas corpus could
not be used as a substitute for appeal.
The'First DCA held that the
Gulf County Circuit Court was
correct in denying the s~ccessive
petition because the jurisdiction of

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

the DCA's to entertain direct appeals
by parolees from final orders of the
Florida Parole Commission has been
eliminated, prisoners and parolees
must ~eek their remedy in the circuit
court by way of a petition for an
extraordinary writ. Since Johnson
has previously sought relief in Leon .
County, he could not seek a
successive one in GulfCounty.
Mosley v. Slale, 28 Fla. L. Weekly

DIOS

(Fla~

III DCA 12131102)
In this case, the DCA .was
faced with the issue of whether the
"remaining in.,
theory of the
burglary statute was applicable when
there is an unlawful entry and
whether legislation can nullity. a
judicial decision retroactively. .
. Christopher
Mosley
unlawfully entered an automobile in
Orange County, and forty-two days
later was apprehended while driving
the vehicle' in Columbia County
following. a high-speed chase from
an anned robbery that occurred in
Alachua County.
Mosley was
charged with aggravated assault on a
law enforcement offi~ with a
deadly weapon, anned burglary of a
conveyance. and grand theft. auto
while anned The case was tried in
Columbia County.
The DCA
reversed the burglary conviction.
Mosley argued that the only
burglary theory applicable in his case
is un18wful entry, and that ~enue was
not proper in Columbia County,
because the unlawful entry occurred
in Orange County.
In rejecting
Mosley's position, ·the trial court was
persuaded by the state's argument,
based on Stale \I. Stephens. 608 S02d
905 (Fla. Sib DCA 1992) that the
burglary occurred in .Columbia
County, because Mosley "remained
in" the vehicle while in that county.
In Slephens, the Fifth DCA
concluded that their review· of cases
addressing the "remaining in" theory
did not address the question of
whether burglary can also be proved
under this statute by alleginS and
proving that a defendant not only

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

unlawfully entered a conveyance, but
also unlawfully remained there, with
the unlawful intent to steal it. In
concluding that "remaining in" is a
continuing aet for venue purposes,
the Fifth DCA affinned the
defendant's conviction.
Allieri v. Slale, 28 Fla. L. Weekly

0112 (Fla. 41b DCA 12126/02)
In this case, the Fourth
District Court of Appeal said it was
error for the trial court to impose a
twenty-year mandatory minimum
sentence
under
section
775.087(2Xa)(2), Fla. Stat. (1999)
based on discharge of a fireann
where the charging information
alleged that defendant "used a deadly
weapon, to wit: a firearm," but did
not contain an allegation that
defendant "discharged" a firearm or
destrUctive device. Moreover, .the
jury's finding that defendant
discharged fireann during course of
aggravated assault did not cure
defect in the information. In regard
to . the ~year
mandatory
minimum under 775.087(2), Fla.
Stat. (1'997), the information that
defendant "used" a fireann during
commission . of aggravated assault
was sufficient to place defendant on
notice that he was subject to the
three-year mandatory minimum
provisi~n for possession ofa fireann.
\I. Slale, 28 Fla. L. Weekly
0172 (Fla. 2d DCA 1/3/03)
In an en banc decision, the
Second DCA has herd where a
defendant is charged with offenses
that occur during. a .period that
straddles three different guidelines
time frames. and neither the evidence
nor the verdict pinpoint that date of
offenses, the trial court errs in
sentencing the defendant under the
guidelines in effect on the end date
alleged in the information rather than
under the most lenient guidelines in
effect during the time frame alleged
in the information.

CaM

_

FLORIDA PRISON LEGAL

Bo/dei, v. Stale, 28 Fla~ L. Weekly
DI87 (Fla. 1st DCA 1/8/03)
On rehearing, the First DCA
held that were an inmate is serving
concurrent sentences for related
crimes arising from the same
incident, it was improper to toll
prisoner's
conditional
release
supervision on one charge while he
continued serving the incarcerative
sentences 'on the other. charges. The
Court held that neither the statute nor
caselaw mandate that days a prisoner
remains in prison on one charge
while pending release on other
charges be added to calculation of
release date. The DCA did certifY
the following question to the Florida
Supreme Court: "When' an. inmate
who is serving several related
sentences subject to .conditional
release supervision for multiple
crimes occurring in the same
criminal episode has violated
conditional
release supervision,
should
the
Department
of
Corrections, in calculating the new
release date, consider time served
following the expiration of the
incarcerative portion of one sentence,
while awaiting expiration of the
incarcerative portion of the other
related sentences, as tollOO:' pursuant
to Evans v. Singletary, 737 So.2d
505 (Fla. 1999), and, if so, should the
Department of Corrections add such'
tolled time onto the sentence in
calculating the new release date?"
Wise v. State, 28 Fla. L. Weekly
D206 (Fla. 2d DCA 1/10/03)
Florida prisoner. Joseph Wise
challenged his conviction and
sentence for lewd and lascivious act
in the prr3ence of a' child under age
16. The DCA held that the trial
court's instruction to the jury on
subsection of statute other than the
subsectiQn under which defendant
was charged was, reversible error
where jury's verdict was general
verdict that did not specifY the theory
by which it found defendant guilty.
[Editor's Note: In 0 'Bryan v. Stale,
692 So.2d 290 (Fla. Ist DCA 1997),

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

confusion to this redundancy issue,
in tAiles II, the Supreme Court held
the statutory presumption provided
for in s. 316 1934(2) was invalid, Le.,
the State is not legally entitled to the
presumption'
of
impairment
State v. Schreiber.. 28 Fla. L. Weekly
d1
associated
with
the
Implied
Consent
D278 (Fla. 4 DCA 1122/03)
Law.
Yet,
the
court
reaffirmed
the
On rehearing, the Fourth DCA
admissibilitY
of
blood
results
withdrew its earlier opinion in this
introduced through the three prong
DUi case and issued the following
discussed in Robertson,
predicate
holding. Florida law authorized two
and
not
introduced
pursuant to the
alternative theories for the crime of
Implied
Consent
Law,
but the court
driving under the influence; driving
noted
that
blood
results
introduced
while one's normal faculties are
through the Robertson predicate are
impaired [impairment theory], or
not entitled to the Implied Consent
driving with a blood alcohol content
presumptions, which are specially
(BAC) of 0.08 or higher [unlawful
contingent upon compliance with the
blood alcohol theory - DUBAL].
Implied Consent Law.
See: Section 316. I93(I)(a), (b), Fla.
On rehearing in Dodge v.
Stat. (200 I).
State, 805 So.2d 990 (Fla. 41b DCA
As the Florida Supreme
2001), the Fourth DCA adopted'the
Court noted in Robertson v. State,
Second DCA's analysis in Tyner v.
604 So.2d 783 (Fla. 1992), the
Slale, 805 So.2d 862 (Fla. 2d DCA
second theory, DUBAL, is a strict200 I), holding where BAC results
liability theory of DUI, since the fact
have been properly admitted under
of operating a motor vehicle with a
BAC of 0.08 or higher constitutes the , the Robertson predicate, and not visa-vis the Implied Consent Law, the
offense of DUl even if impairment
court may instruct the jury that if it
cannot be prov.en. The court further
finds the defendant did infact drive
noted there is some redundancy in
with an unlawful BAC, the defendant
the statutory DUl scheme, since
impairment is presumed if the . is guilty of the crime of DUI. As
such, the standard jury instruction,
defendant's BAC isO.OS or higher.
which includes the alternative
See: Section 316. 1934(2), Fla. Stat.
theories of DUl (impairment and
However, the p~umption
of
DUBAL), does not improperly
impairment created by S316. 1934
instruct the jury on the ,Implied
(2) is a moot concern if the State
Consent presumption of impairment,
proves beyond a reasonable doubt
since the jury can be instructed on
that the defendant operated a motor
DUBAL (provided blood results
vehicle with an unlawful BAC, i.e.
have been introduced via the
0.08 or higher.
Addin~ further
Robertson predicate) absent proof of
any impairment.
the First DCA held that it was
fundamental error to instruct the jury
on a crime not charged and that the
resulting verdict was a nullity.]

MARY's MAGIC

Hello. j'm Mary. I have an
incarcerated son and feel
your struggles. I know how
important it is to send nice
gifts to your loved ones. Send
for my catalog and see what
services t offer (no pen pols'.
SASE - gel 50¢ coupon lor

nexlorder.
Mary's Mogle
Post OfIlce Box 8029 J
Roehester. Mlehlgan 48308'

Nivose v. State, 28 Fla. L. Weekly
D313 (Fla. 41b DCA 1/29/03)
This case addresses the
propensity of trialjudges to construe
"letters" as "motions" for postconviction relief.
In a correctly
reasoned opinion, the Fourth DCA
held it is error for a trial court to
construe a letter as a motion for postconviction relief under Rule 3.850
, when the letter is neither sworn to
and did not include the requirements
of Rule 3.850 (c). •

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

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

Perspectives - - - - - - - - - - - - - . . . . . :

MICHAEL V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATION
The Law Offices of Michael V. Giordano
412 E. Madison Street, Ste. 824
Tampa, Florida 33602
(813) 228-0070
A STATEWIDE practice specializing in Post-Conviction
Relief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**
**PAROLE**
**DIRECT.APPEALS**
**HABEAS CORPUS**
**POST-CONVICTION RELIEF**
*INEFFECTIVE COUNSEL
*WJTHDRAWAL OF PLEA
, *IL~EGAL SENTENCES
*ACTUAL INNOCENCE
*I.N.S•. DEPORTATION
I am a fonner Assistant State Attorney (Felony Division ChieO. Assistant Public Defender (Lead Trial Attorney). and member of the
faculty at the University of Florida College of Law. 1have devoted over 25 years to the teaching and practice of criminal defense law.
and ( am an author of a 1.250 page text on federal practice in the Eleventh Circuit. The mlljor thrust of my practice has been postconviction oriented. There is approximately 70 years of combined experience in my office. I do not believe you can find more
experienced representation in the State of Florida or elsewhere.

The biriIIg 11' a lawyer is lIII importanl clccisiOllIMI should nol be based ~Icly (In lIdvcrtiscmcnb. Be,ore ~1lU dccidc.lIIk us to send )'llU free written in'cmnalilln abClut (lUf ,ualifiClllicms.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 19

_

FLORIDA PRISON LEGAL

Rehabilitation Rebound
by Bob Posey
. . It's not hard to understand why U.S"
unpnsonment rates are so high, statistics show that two
thirds of all felons released from state prisons are
rearrested within three years. Added to that is the
increased length of sentences, extended as a result of the
·'tough on crime" sentencing policies of the past three
decades, and the recategorization of former misdemeanors
as felonies that carry mandatory prison sentences. In most
states, like in Florida, and in the federal criminal justice
s~stetn: se~tencing guidelines have greatly 'limited judges'
discretion 10 what sentence is appropriate for offenders.
Under guidelines, discretion is replaced with a system of
charts and points that are controlling over the sentence
that must be imposed, and according to some critics
dehumanizing the process with one-size-fits-all sentences. '
Whe? , impr~soned, prisoners are simply
~arehoused .10 m~fficlently operated prisons that provide
httle or no mcentlve or opportunity for them to want to
change their lives, and when released, and ninety-five
pe~t of prisoners will be released, the cycle starts over
agam.
Demise of Rehabilitation
For a brief period in the late 1960s up to the mid1970s, rehabilitation was considered to be the most
effecti~e ~y to ~e<!uce c~im~ and p~vent recidivism by
the maJonty of cnmmologlsts 10 America, The shift away
from rehabilitation to a philosophy favoring punishment is
largely credited to an influential article published in 1974
by Robert Martinson, a sociologist with City University of
New York, who concluded that ··with few exceptions the
rehabilitative efforts that have been reported so far have
~ad no appreci?ble effect on recidivism," Five years later,
10 1979, MartlOson admitted that his earlier conclusions
had been wrong. Martinson noted that further research
showed that rehabilitation efforts did have a positive
effect on reducing crime and recidivism, but by then it
was too late.
upon Martinson's first article in 1974 the
. Seizingpress
mamstream
interpreted his conclusions ' on
rehabilitation
into'
headlines
proclaiming
'REHABILITATION A FAILURE" and ·NOTHING
WORKS".
Not to be left out, a slue of other
neoconservatives, ,like James Q. Wilson of Harvard
University, sought their moment of media fame by urging
longer and harsher prison sentences as the solution to
fighting crime and ,discouraging repeat offenders.
Conservative politicians quickly saw the platform benefits
of being perceived as tough-on-crimefighters. It didn't
take .Iong before the erroneous conclusions posited by
MartlO~n had ~ecome the accepted, largely unquestioned,
conventlo?al WIsdom among criminology pundits,
conservatives, and the media alike.
'

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

In 1985, then administrator of the Office of
Juvenile',Justice and Delinquency prevention, Alfred S.
, Regnery, told the nation that "rehabilitation...has failed
miserably," Two years later, in 1987, widely recognized
Attorney General ~win Meese commented on the
"substantially discredited theory of rehabilitation." And in
1989, the U.S. Supreme Court signaled. it was time to
close t~e casket and throw in the dirt on a dead idea by
upholdlOg federal sentencing guidelines that removed
rehabilitation from consideration when' sentencing
offenders.
Rethinking Rehabilitation
In the past decade the previously accepted
consensus of rehabilitation not working has started to be
questioned. The renewed thinking is largely the result of
something. ca~led meta-analysis, a new research technique
that convlOcmgly demonstrates that rehabilitation does
work. The new technique, instead of focusing on just one
of a few studies, combin~ the results of many studies. In
that way extraneous and inconclusive factors in studies are
averaged out in the final result.
.
Applying meta-analysis to almost 2,000 studies
tha! .e?compass a variety of approaches to reducing
recidiVISm, results were achieved that show rehabilitation
does have a positive effect, although modest, partially
because of the inclusion of therapies that did not work.
Notable, however, were the findings that certain behavior
modification therapies for violent offenders and for low to
medium-risk sex offenders have been effective, obtaining
50 percent or more reductions in recidivism rates as
compared to controls. Additionally, high success rates in
preventing crime have been achieved with programs that
target juvenile offenders that include mentoring, skills
instruction, and for teenage mothers, intensive home
visitation to prevent child abuse.
While it caMot be ignored that research studies
can only measure the effect of programs in an artificial
environment,' and that in real-life situations such programs
are often less effective, nevertheless, even if the results
were diluted by half they still show that rehabilitation can
have a significant impact on reducing crime and
recidivism in the U.S.
Kneejerk Solutions Fail
James McGuire of the University of Liverpool in
London, recognized as one of today's leading researchers
on cri~inal behavior, has observed that, ,generally, harsh
penalties are not effective and may actually increase crime
rates. Studies done on bootcamps, three-strike laws, socall~ scared straight programs and the death penalty are
provmg that such harsh measures are ineffective in
reducing recidivism.
,A recently released report by David A. Anderson,
an a~sociateeco~omics professor ,at Centre College,
DanVille, Ky., entitled "The Deterrence Hypothesis and

20--------

_

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - . : . - - - -_ _

all seem to employ this heuristic device in evaluating
Picking Pockets at the Pickpocket's Hanging,"· concludes
government programs, Project Exile would appear to
that harsher criminal sentences do not result in substantial
highlight the enduring maxim that it is often better to be
reductions in crime and that a new emphasis on alternative
lucky than good."
deterrents is needed. Anderson's report is based on data
from interviews with 278 male prisoners in two mediumThat latter observation by the researchers appears
to be accurate. On January 7, 2003. when members of the
security state prisons and a county jail between t997 and
108tb Congress of the United States were sworn in, Rep.
1999. The study found that 76 percent of the offenders in
Ander Crenshaw (R-Fla.) introduced a bill that would
the sample and 89 percent of the most violent offenders
provide incentives to states to enact five-year mandatory
were either not aware of the possibility that they would be
caught or the probable punishment that would be imposed
minimum sentences for certain gun crimes. The bill, H.R.
ifcaught for their crimes.
54. is entitled "Project Exile: the Safe Streets and
"Still more active criminals are impervious to
Neighborhood Act of 2003." Crenshaw has five c0harsher punishments because no feasible detection rate or
sponsors to the bill: Mica (R-Fla.), Putnam (R-Fla.),
punishment scheme would arrest the impelling forces
Forbes (R-Va.), Kennedy (R-Minn.), and Oxley (R-Ohio).
behind their behavior, including drugs, fight-or-fight
Of course, there is no guarantee the bill will ever become
responses. and irrational thOJ,lght,.. wrote Anderson.
law. but it demonstrates the persistence of "tough on
crime" policies even in the face of discrediting research.
Another r:ecent report. co-authored by Steven
Raphael of the University of California at Berkley, and
Jens Ludwig of Georgetown University and Brookings
The Cost to Society
Institution. entitled "00 Prison Sentence Enhancements
It cannot be ignored that punishment-overReduce Gun Crime?
The Case of Project Exile,"
rehabilitation has and is continuing to exact a huge toll on
essentially debunks the claimed success of a harsh
society. America now has the distinction of incarcerating
sentencing program that has become the darling of some
more of its own citizens than any other country in the
politicians and law enforcement agencies. Project Exile
world. According to recently released statistics from the
Dept.. Of Justice, there are now over 2 million people in
fust began as an experiment in Richmond. Va.• as a
kneejerk political fIX to gun crimes. Under the project,
U.S. prisons and jails. It wasn't always that way"
offenders convicted of possessing a gun during
In 1973, only one in 1.042 Americans was in
commission of a crime, or convicted felons· in possession
pnson. Today it is one in every 137 Americans who is
of a fll'e8l111, were sentenced under federal law, which
. behind bars. An estimated 4.8% of all black males are in
provides for a minimum five-year sentence for the fireann
prison or jail. and about l. 7% of Hispanics and 0.6% of
possession to be served consecptive to any other sentence.
whites are incarcerated.
Federal sentences meant the offenders would serve longer
Special interest groups claim that rising prison
rates•. combined with generally declining crime rates,
terms than under state laws, and resuh in "exile" of the
offenders to federal prisons outside of the Richmond area.
show that the tougher laws and sentencing policies of the
When law enforcement reported a 40 percent drop
1980s and 1990s are working.
But critics of the
in gun homicides between 1997 and 1998 and a 21 percent
punishment-over-rehabilitation policies point out. that
drop in overall violent crime Project Exile· was expanded
tough anti-crime laws fail to take into account the .recent
to cover all Virginia. The feds subsequently promoted
declines in crime.
expansion of the project in the Safe Neighborhoods
As more people are imprisoned, there is an
program. However, according to Raphael and Ludwig,
increasing financial interest in seeing crime and the
Project Exile's apparent success was skewered by
correctionaVcriminal justice system continue to expand.
improper analysis that did not take into account that
Whole· industries have evolved to build the prisons and
violent crime rates fell even further in areas where the
sell evetything to the prison system from bars to bars of
project was not implemented.
soap. Corporations have sprung up to operate private
Researchers Raphel· and Ludwig concluded that
prisons to make a profit off taxpayers for the corporate
impressive declines in ftrearrn homicides can be almost
owners and stockholders.
Such industries and
entirely explained by the fact that in cities like Richmond
corporations have become heavy contributors in the
with larger-than-average fireann homicide rates there
political process to keep their businesses growing.
usually follows a period with large declines in the number
.
With so many adults incarcerated the criminal
of homicides. "One larger lesson.from the analysis. is the • justice system is. increasingly targeting young people
apparent tendency of the public to judge' any criminal
while the media portrays them as criminals who also
justice intervention implemented during a period of
generally cannot be rehabilitated, and thus, must be
increasing crime as a failure, while symmetrically judging
incarcerated. Not only is an alarming number of children
being swept up into the criminal justice system, but an
those launched during the peak or ~ownside of a crime
equally alarming number are losing parents to the system.
cycle as a success," noted the researchers. "Given tha.."
they continued, "policym8kers, news reporters and voters

---------------21---

_

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

Critics of rehabilitation have often pointed at the
cost of therapies as being prohibitive. Yet. rehabilitation
is far cheaper than our present criminal justice/prison
warehousing system that incurred direct costs of $147
billion in 1999 and has been growing by more than 5%
annually every year since.
With roughly one half, or 1 million, of the people
imprisoned in America being nonviolent offenders, it only
makes sense that many of them could be rehabilitated if
given· the incentive and opportunity. The alternative
simply wastes too many lives.

PerspectIves - - - - - . . : . . . - - - - - - - -

The Deterrence Hypothesis and Picking Pockets at the
David A. Anderson. 2002.
Pickpocket's Hanging.
*Explaining his' report's title, Anderson noted that in
England in the late 18th and. early 19th centuries picking
pockets was one of 220 capital crimes. Thousands would
gather to watch the executions. Undeterred by the fate of
their brothers in crime, pickpockets would work the
crowds at the public hangings.
Do Prison Sentence Enhancements Reduce Gun Crime?
The Case of Project Exile. Steven Raphel and Jens
Ludwig, 2002.

Further Reading
What Works: Reducing Reoffending. Edited by James
McGuire. John Wiley and Sons, 1995.
Offender Rehabililation and Treatment. Edited by James
McGuire. John Wiley and Sons, 2002.
Evidence-Based Programming Today. James' McGuire.
Paper delivered at the' International Community
Corrections ASsociation annual conference, Boston, 2002.

Appeals
Belated Appeals
Rule 3.800 & 3.850
Habeas Corpus
Executive ClemenC)'

Law Office
of
Jon L. Martin
3601 S. E. Ocean Blvd.
Suite 103 .
Stuart, FL. 34996
Phone (772) 419-0057
Fax (772) 781-4548

Post Conviction
Advocates
"The hiring ofa lawyer is an important decision
that should not be based solely upon
aa.·ertisements. Before you decide, ask us to send
you/ree writ/en in/ormation about our
qualifications and experience. " .

Recidivism of Prisoners Released in 1994. Patrick A.
Langan and David J." Levin. Bureau of Justice Statistics,
June 2002.
NCJ# 193427.
Available free from
www.ojp.usdoj.govlbjslabslractlmr94.htm or by writing
to: NCJR S, P.O. Box 6000, Rockville, MD 20849-6000.
Reducing Crime: Rehabilitation is MaJcing a Comeback.
Rodger Doyle. Scientific Anierican, May 2003. •

* Notice *
FPLAO Prisoner Members
The last issue of FPLP, Volume 9,
Issue 3. May/June 2003. was impounded
by some institution mailrooms pending a
review by the FDOC Central Office to
detennine if that issue will be rejected as
inadmissible reading material.· Okaloosa
CI was the institution that initiated the
review, but under the FDOC's blanket
(and
arguably,
unconstitutional)
publication
impoundment/rejection
procedure the issue was likely impounded
at other institutions.
The problem. according to FDOC
officials. was the front page article
entitled, "FDOC Panics Over Threat
To Prison Telephone Monopoly Scheme."
Allegedly
that
article
encourages
prisoners to violate FDOC rules and is a
security threat because it "tells prisoners
how to circumvent Ihe [FDOC] telephone
system." Actually. that is not true. The
article informs prisoners' families how to
circumvent the prison telephone rate
gouging.
.
FPLP has filed an appeal 'challenging
the impoundment/rejection and blanket
rejection procedure. If necessary. FPLP
will seek judicial review on those malters.
Stay tuned.

---------------22-----

FAMILIES AGAINST
INFLATED RATES
(FAIR)
CAMPAIGN
Are you tired .of the high cost of
the collect-call phone rates being
charged the families and friends
of Aorida state prisoners?
FPLAO intends to do something
about those exorbitant· rates, but
your help is needed. If you have
access to the Internet. log on to
ww,fplao.org to participate in the
FAIR Campaign online. You can
also write and receive a FAIR
Campaign Action Packet to
participate in the effort to achieve
lower rates. Together, we can
make a difference. Write for your
Action Packet today and visit
www.fplao.org to get involved.
FAIR Campaign
P.O. Box 880-387
Chuluota, FL 32766
Prisoners: If you would like your family to
receive Information about the FAIR
Campaign and an Act/on Packet, send
their name and address to the above.

~-

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

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

David W~ Collins, Attorney at Law
Former state prosecutor with more than 1S years ofcriminal law experience
"AV" rated by Martindale-Hubbell Bar Register of Preeminent t-awyers.
Your voice In Tllllllhasue repraentlng prisoners In tdl tueIU 01poat-convlcllon reIlef

.Plea Bargain Rights
.Sentencing & Scoresheet Errors
.Green. Tripp. Karchesky. Beggs cases
.Jail time Credit Issues
.Oaintime Bligibllity Issues
.HabituaJization Issues
.Probation Revocation issues

.Appeals
.3.800 motions .
.3.850 motions
.State & Federal Habeas Corpus
.Writs of Mandamus
.Parole Hearings

.Clemency

.. DID YOU KNOW••• Many cases contain sentencing and scoresheet errors that result in defendants

Often

.. serving extra time on their sentences.
these errors can be corrected decades after sentencing. Write
.. for infonnation about a low cost review ofyour sentencing papers. Let·) 0,000+ hours ofexperience in
.. sentencing and scoresheet errors go to work for you~

W,ite me today about you, casel
P.O. Box 541
Monticello, FL 32345(850) 997-8111
wrbe 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."

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

.

~_~_r

__ . . .

~_

A Memoir

About The Book: In this sweeping. genre-blurrin; autobiography, Miami native, William Van Poyck - car
thief, burglar, bank robber, escape artist, jailhouse awyer arid award winning writer - guides readers through
a vividly sketched tour, from pnvileted barefoot youth to reform schools, prisons and death row, an
unEoflettable, four-decade odyssey tTu-oush an unraveling life seemingly beyond reconciliation. Providing a
,
brutally authentic look. projected throufh.the lens of raw experience, Into the
.-------------------------------_
hardscrabble underbelly of America's cnminal justice system, Van Poyck paints
Order Form
broad portrait of the human condition, by turns grim, humorous, poignant,
haunting and iJUpirin~, yet always compelling. This no-holds-barfed. eye-opening
A ChecJurwl Pall, IOftback, 6 x 9. 324 pages
II~ of human fallibilJty cuts dose to die bone while resonating with life's nmeless
You eanorder from Tame For Freedom, P.O. BOl819,
dtCmes of despair, hope and redemption.
OWa. PL 34478 or by calling 352-351-1280.

a:·

•

Quantity:

How To Order: A Cbeckered Pall, softback, 6 x 9,324 pages
You can order from Tune For Freedom, P.O. Box 819, Ocala,
FL 34478 or by calling 352-351-1280. Cost is $14.so, plus $2.50
shipping and handling;
About The Authon Senteneed to, death for his part in the 1987
botched anempt to free his best friend from aprison transpon
van in downtown West Palm Beach, during which a guard was
~~JY Van POYJs,ckTh'saCC:'h~Ji~I~~ V~~ Viand
an Poyck has
two nove
e ~, in. PUwr OJ Wucw'1J,
Quietlls.
He currendy resides on Varginia's death row where he was
traDSferred in 1999, after Florida Stite Prison guards murdered his co-cIefendant,
Frank Valdes. in his death row c:ell.

Pi1ce:

Shlpplng:
Total:

Name:
Address:

$14.50 each
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CIty:

,State: -ZIp: _ _

Phone:

E.mall:

} '.....KU

_

Please send a c:hed< or a money order to the
addrass above.

23 - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - flORIDA PRISON LEGAL Perspectives - - - - -

_

Membership Drive
Check it out. For the next six months, until Jan. 31, 2004, Florida Prisoners' Legal Aid Organization, Inc. (FPLAO) is engaging in
a drive to increase memberships. During that period we hope to gain i,oOO new members~ To do that your help is needed. Those who
help will not only be helping the organization to grow and become more effective, but will also be benefiting themselves.
Here's how it will work: For every person who gets three people to become an FPLAO member between now and Jan. 31't,
whether prisoners or free citizens, that person will receive either a free one-year membership, or if they are already a member, then
their membership will be extended for a year with no dues owed. This is a great and easy way to either become a member of FPLAO
or to get a free membership extension. All members receive the organization's news magazine Florida Prison Legal Perspectives, of
course.
You don't have to stop at getting three new members. If you get six people to join, your membership dues will be covered for two
years; get nine to join and you will not have to pay any membershipdlies for three years being a member' of Florida's largest and most
effective organization that works to help Florida prisoners and their families and loved ones. Don't delay; start signing up new
members today!
Simply have new members complete the below membership fonn, putting your name on the "sponsored by" line so you get credit
for signing them up, and have them send in the fonn with their indicated membership dues. We'll let you know every time three new
people sign up that you sponsored. Prisoners: Been hesitating to become an FPLAO member because your funds are tight, but want to
receive FPLP? You can't get it any easier than this. Ifyou aren't interested, tell someone else about il Let's build up FPLAO!
.

I

.

Yes, I want to become a member of Florida Prisoners' Legal Aid Org.
I. Check type membership:

3. Sponsored by (name & DC#)

CJ $]S per year Family member/friend/individual
CJ $9 per year Prisoner
.

1. Please Print:
Naine:,
Address:

City:

4. Send this completed fonn plus

_
_
State_ _Zip

_

indi,cated yearly membership
dues made payable to:
Florida Prisoners' Legal Aid Org. Inc.
Membership Dept.
PO Box 660-387
Chuluota. FL 32766

Yes, I want to becoml! a member of Florida Prisoners' Legal Aid Org.
3., Sponsored by (name & DC#)
I. Check type m~mbersblp:
CJ $15 per year Family member/friend/individual
o $9 per year Prisoner
1. Please Print:
Name:
Address:

City:

_
-'-_
'--State_ _Zip

4. Send this completed form plus
indicated yearly membership
dues made payable to:

Florida Prisoners' Legal Aid Org. Inc.
Membership Dept.
.
PO Box 660-387
Chuluota. FL 32766

_

........

Yes, I want to become a member of Florida Prisoners' Legal Aid Org.
1. Check type membership:
3. Sponsored by (name & DC#)
o $ 15 per year Family member/friend/individual
o $9 per year Prisoner
2. Please Print:
Name:
Address-:----------------

City:.

~-.State-----'Zip-·

4. Send this completed fonn plus

indicated yearly membership
dues made payable to:
Florida Prisoners' Legal Aid Org. Inc.

_

Membership Dept
PO Box 660-387
Chuluota. FL 32766

24 - -

--.:....

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- - - - - - - - - - - - - - FLORJDAPRISONLEGAll'erspectives - - - - - - - - - - - - - -

Circuit Court Grants FDOC
Summary Judgment on Denial of '
Access to Court Claims, Appeal Will
. Follow

FINAL SUMMARY JUDGMENT FOR
JmFENDANTS

This cause came before the court upon the parties'
cross motions for summary judgment. The hearing was
held February 7, 2003, and the parties have filed a jomt
by Bob Posey
Having reviewed the. motions,
stipulation of facts.
suppOrting memorandum, and documents filed m support
On May 6, 2003, Second Judicial Circuit Court
of the motions, having heard argument of counsel, and
Judge Nikki Ann Clark granted summary judgment to the
being otherwise duly advised in the premises, the court
Florida Department of Corrections in a class action case
finds th8t there are no genuine disputes. of material fact
filed on behalf of all Florida state prisoners, which alleges
and that the defendants are entitled to a declaratory
that various policies and practices of the FDOC deny
judgment in then: favor as a matter of law. Fla. R. Civ. P.
prisoners adequate court access and due process in
1~1~
"
violation ofthe Florida Constitution.
This is a class action lawsuit pursuant to Rule
Judge Clark's final summary judgment order in
1.220, Florida Rules of Civil Procedure and the class was
that' case is .reprinted here in its entirety since this case
certified on April I O~ 2002. I In" the "Amended Complaint,
affects all Florida prisoners. Florida prisoners are being
filed July 3, 2002, the plaintiffs seek declaratory, and
represented in this case by attorney Robin L. R~senberg,
injunctive relief with .regard to the Department of
an attorney with the prestigious Holland and Kmght Law
Corrections' provision of access to courts and due process
fInD, one of the largest law finns in the South. Ms.
for prisoners. The plaintiffs challenge 8 aspects of the
Rosenberg has informed FPLP staff that Judge Clark's
Department's procedures and regulations regarding
decision will "definitely" be appealed. As an interesting
prisoner litigation, specificatty (I) the elimination of
aside, it is noted that Judge Clark perpetuated the FDOC
inmates' access to word processing equipment; (2)
lie that the law library, typewriters, and computers were . reduction of the title list for legal publications and
bought with taxpayers' money. In reality, all of the , removal of form files from the'Department law libraries;
equipment that was taken (stolen, according to some) from
(3) restrictions on inter-library loans; (4) limitations on
the prison law libraries in 2001 was either donated or
storage of legal papers within institutions; (5) breach of
purchased and maintained with monies from the Inmate
confidentiality of inmate legal documents mailed out for
Welfare Trust Fund, which comes from profits gouged out
typing or copying; (6) inadequate hours of access to law
of prisoners with high canteen prices and gouged out of
libraries; (7) a reduction in the availability of research
their families with outrageously high collect-call
aides to assist inmates with legal papers; and (8)
telephone rates by the FDOC. Many of the taken
restrictions on possession of legal papers by other inmates
typewriters and Computers have now ended up in FDOC
and on times and places for prisoners to assist each other
offices and areas that are prohibited by law from
.with legal proceedings. The current regulations governing
purchasing or using IWTF-purchased property.
prison libraries and legal mail are found in Rules 33FPLP will report more on this case as it proceeds.
210.102 and 33:-501.301, Florida Administrative Code.
, The plaintiffs seek a declaration that the above
aspects of the Department's library system violate their
rights under Article I, Section 21 of the Florida
STATE OF FLORIDA SECOND JUDICIAL
Constitution (Access to Courts) and Article I, section 9 of
CIRCUIT COURT IN AND FOR
the Florida Constitution (Due Process Clause).
LEON COUNTY, FLORIDA
There are no genuine disputes of material fact
regarding the past and current regulations and procedures
GREGORY HENDERSON. et at.,
at issue. The parties stipulate that on May 10, 2001,
Plaintiffs,
defendant'Richard Nimer•. Director of Program Services
for the Florida Department of Corrections, issued a
CASE NO: 2001 CAOOl307
v.
directive to all Program Managers and Library Managers
statewide, informing them. of a change in Department
JAMES V. CROSBY, JR.,
policy regarding prisoners' use of typewriters, word
et at.,
processors, and computers for the preparation of legal
documents and legal mail. The Managers were directed to
Deftndants.
discontinue inmate access to word processing equipment
I
and the forms and other information stored on such
equipment. At the time of the Nimer memo, 52% of the
prison law libraries had word processing equipment.

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The parties also stipuiate that in July 1996, the
Department reduced the titles .in its law library title list
from 98 to 45 titles in major libraries and from 82 to 40
titles in minor libraries. The parties agree that the title list
for major collection law libraries, set out in Department of
Corrections Procedure No. 501.30 I and Florida
Administrative Code Rule 33-501.301(4), has been
approved by the U.S. District Court in Hooks v. Moor~
(Case Nos. 71-144-CivJ-21B and' 71-1011-CivJ-2IB)
(Order of Dec. 8, 2000).. The approved list does not
contain the titles eliminated in 1996~ including portions of
the United States Code governing immigration,
disabilities, racial discrimi!tation, veteran's benefits, and
social security. It also lacks a Florida family law treatise
and 3 immigration law treatises previously available to
inmates. There is no dispute as to the existence and
development of the other aspects raised by the plaintiff.
Fla. Admin. Code Rules33-210.101(2) and 33-210.102(8);
Fla. Admin. Code Rule 33-501,30 I(2).
.The court finds no grounds upon which to revisit
its earlier orders certifying this class of plaintiffs or
denying dismissal of this action. The plaintiffs have
adequate standing to challenge the Department's provision
of access to courts and due process via the inmate library
and mail programs due to their commitment to the custody
of the Department and the attendant application of the
administrative rules governing all prisoners in the
Department's custody.
Whether the plaintiffs have
suffered actual injury from the regulations at issue is a
matter of proof rather than of standing to bring the action.
Based on the undisputed material facts alleged in
the complaint and stipulated by the parties, the coul1 finds
that the defendants are entitled to declaratory judgment in
their favor.
.

ACCESS TO COURTS
Regarding the plaintiff's access to courts claim,
the Florida Supreme Court has explained that:
There are two sources of the right to access the
courts. Florida's constitution specifically guarantees a
citizen's access to courts. See art.l, §21, Fla. Const. The
Constitution of the United States does not, however,
contain a specific clause providing for this right. The
United· States Supreme Court, nevertheless, has held that
there is such a right arising from several constitutional
provisions, including the First AmendmC!1t, the Due
Process Clause, and the Equal Protection Clause. See
generally Bounds v. Smith, 430 U.S. 817, 825, 97. S.Ct.
1491, 52 L.Ed.2d 72 (I997)...,modified. Lewis v. Casey,
5 I8 U.S. 343, 116 S.Ct.2174, 135 L.Ed.2d 606 (1996).
Mitchell v. Moore, 786 So.2d 521, 525 (Fla. 2001). The
plaintiffs correctly point out that the fact that Florida's
constitution contains a specific provision for access to
courts differentiates the analysis of whether access to

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

courts is infringed under Federal law from that analysis
u~der Florida law. Under Florida law, if the challenged
regulation or policy "obstructs or infringes that right to
any significant degree," Florida's article I, section 21
guaran~ that "justice shall be administered Without sale,
denial, or delay" is violated. See Mitchell v. Moore, 786
So.2d at 527.
.
On the other hand, every inconvenience and
restriction placed on prison inmates by. the Florida
Department of Corrections does not constitute a
significant obstruction on- inmates' constitutional rights.
Whiie "prisoners do not shed· all constitutional rights at
the prison gate," Wolffv. McDonnell, 418 U.S. 539, 555,
94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), it is well
settled that "lawful incarceration· brings about the
necessary withdrawal or limitations of many privileges
and rights, a reaction justified by the considerations
underlying our penal system." Sandin v. Conner, 515 U.S.
472,485, I IS S.Ct. 2293, 132 L.Ed.2d 418 (1995).
Applying these principles to the 8' policies
challenged here, the court finds as follows:
Concerning the removal of the word processing
equipment from prison libraries, the Florida Constitution
does not require any particular method for accessing the
courts.
White modem electronic technology and
mechanical typewriters certainly speed document
preparation, the, provision of these conveniences at
taxpayers' expense is not constitutionally mandated. The
plaintiffs have pointed to no case where a legal document
from a prisoner was rejected by a court solely on the basis
that,the document was hand-written.
The deprivation of mechanical and electronic
means to access the courts may be an inconvenience, but
this restriction on the method of preparing legal papers is.
not a denial of the right to access the courts. So long as
the Department provides adequate access, this court will
not interfere in the details of that access. As stated in
Lewis v. Casev, 518 U.S. at 349, "it is not the role of
courts, but that of the political branches, to shape the
institutions of government in such a fashion as to comply
with the laws and the Constitution."
Furthermore, access to courts, while specifically
provided for in the Florida Constitution, is not an absolute
right for prison ifU118tes or non-incarcerated citizens and
may be significantly curtailed in certain circumstances..
. For example, indigent citizens' right to redress injuries in
the courts without legal bounsel and without payment of
filing fees may be curtailed entirely if the plaintiff is found
to have abused court processes with repeated frivolous or
otherwise improper filings. Jackson v. Florida Dept. Of
Corrections, 790 So.2d 318 (Fla. 2001); Lussy v. Fourth
District Court of Appeal 828 So.2d 1026 (Fla. 2002);
Martin v. State, 833 So.2d 756 (Fla. 2002)(non-inmate).
Accordingly, the Department's managerial decision to
remove mechanical and electronic word processing

26 - - - - - - - - -

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- - - - - - - - - - - - - - FlORIDA PRISON LEGAL

:quipment from prisoners does not violate the plaintiff's
'ight to access the courts.
.
.
Likewise, the fact that the Department's libraries
:to not contain research materials on immigration law,
social security law, family law, and other legal topics of
interest to prison inmates does not establish that the
Department's library title lists and policies constitute a
denial of the plaintiff's right of access to courts. In
Mitchell'v. Moore, 786 So.2d 521, 525 (Fla. 2001), the
Florida Supreme Court stated:
I

The [federal] Supreme Court described the right
of "access' to courts" as including, among other things, the
provision of an acceptable law library. [citing Bounds v.
Smith. 430 U.S. 817. 828. 97S.Ct. /49/ (/977)]. In
Lewis v. Casey, 518 U.S. at 355, 116 S.Ct. 2174, however,
the court made it clear that "access to courts" does not
guarantee inmates the right to "transform themselves into
litigating engines capable of filing everything from
shareholder derivative actions to slip-and-fall claims."
States must only provide a reasonable adequate
opportunity to file nonfrivolous legal claims. challenging
their convictions or conditions of confmement. ld.

As noted in Lewis v. Casey, the constitutional
right under both Federal and Florida Constitutions is the
right to access the courts, not the right to a particular law
library or internal system for legal assistance. Impairment
of prisoners' abilities to litigate matters not connected
with challenges to their sentences and conditions of
confinement "is simply one of the incidental (and
perfectly constitutional) consequences of conviction and
incarceration." Lewis v. Casey, 518 U.S. at 355, 116 S.Ct.
at 2182.
Access to courts is achieved if prisoners have "a
reasonable adequate opportunity to present claimed
violations of fundamental constitutional rights to the
courts." Bounds v. Smith, 430 U.S. 817, 825, 97 S.Ct.
1491, 1496, 52 L.Ed.2d (1997). Neither the Federal nor
Florida
Constitutions
require
"the·
conferral
of.. .sophisticated legal capabilities upon a mostly
uneducated and indeed largely illiterate prison population"
for the purpose 'of discovering action~ble claims and
litigating effectively once in court. Lewis v. Casey, 51 ~
U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996).
The plaintiffs concede that the current library title lists
comport with Lewis v. Casey and Hooks v. Moore, but
assert that access to courts under Florida law requires
additional titles on immigration, family law, veteran's
benefit law, etc. However, this court has not discovered,
nor have the plaintiffs directed this court to, any case
requiring that Florida prison inmates must be provided
research material on all legal topics which might affect
any prisoner.
,
The plaintiff's claims regarding the limitations on
inter-library loans pertain to the availability of

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

publications in the Department law library system. The
court finds that the analysis for the title lists above also
governs the inter-library loan issue and that the interlibrary loan program does not violate the plaintiffs' rights
to access the court.
Plaintiffs' fourth claim, regarding storage of legal
materials at Department facilities, is moot. The plaintiffs'
concerns have been addressed by the Department and
legal property is stored by the Department. No violation
of access to courts is presented by the storage issue.
The fifth aspect of Department policy raised by
the plaintiffs is the alleged breach of confidentiality for'
legal materials the inmate sends out to third parties for
typing, then receives through the Department mail system.
The addressees of the documents are observed by the
Department mail staff and if the document is not being
sent to a lawyer, the mail is not subject to the legal mail
rules. This practice does not violate a prisoner's access to
courts because typed documents are not a filing
requirement which will subject a prisoner to dismissal if
not followed. The decision to mail out documents for
typing is in the prisoner's discretion. In addition, the
confidentiality of legal papers stems from the right against
self-incrimination (Art. I, section 9) and the attorney/client
privilege. Because hand-written pleadings are accepted by
courts, prisoners are not compelled to incrimiriate
themselves in order to access the courts by sharing
documents with third parties. Likewise, section 90.502,
Florida Statutes, provides that communications between a
lawyer and a client which are not intended to be disclosed
to third parties are confidential.
There is no
attorney/client
privilege
if the
document
or
communication is voluntarily provided to non-lawyer third
parties by the prisoner. The facts alleged do not show a
denial of access to courts imposed by the mail policies in
Rule 33-210.102 Fla. Admin. Code.
Regarding library hours, availability of research
aides to assist inmates, and restrictions on possession of
other inmates' legal papers, meeting times, etc., federal
law is well settled that th~re is no constitutional right to
any particular number of hours in the law library or of
hours of research aide assistance. See e.g. Walker v.
Mintzes, 771 F.2d 920 (6th Cir. 2001). Access to courts
does not mean unlimited hours in the library, reference
materials on all legal topics, and unrestricted research
assistance opportunities.
The policy of prohibiting inmates from possessing
each other's legal materials outside the .library has a
legitimate basis in that the Department nCeds to curtail any
improper transfer of papers through coercion among
inmates and to prevent loss o.r destruction of legal papers
which is likely when the owner of the documents does not
keep possession of them.
Like the analysis of the equipment and
publications provided as the means of access to the courts,
the particulars of library hours, etc. are for the political

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

branches to implement and the court's only role is to
"remedy past or imminent official interference with
individual inmates' presentation of claims to the courts."
Lewis v. Casey,S 18 U.S. at 349, 116 S.Ct. at 2179. The
particular method of accessing the courts is an executive
function and the court will not usurp that administrative
authority over the details of the prison library system. The
Department's policies regarding library schedules and '
research aide availability is a managerial function outside
the province of this court's supervision unless these
policies have been shown to significantly obstruct or
infringe upon the plaintitrs access to courts. There has
been so such showing in this case.

DUE PROCESS
In their motion for summary judgment, the
plaintiffs allege seyen property and liberty interests
deprived by the Department's court-access policies.Property interests protected by the Due Process Clause are
property interests created by state law or liberty interests
guaranteed by the Bill of Rights independently of state
law. See Board ofRegents v. Roth, 408 U.S. 564, 92 S.Ct.
2701, 33 L.Ed.2d 548 (1972). However, "a mere
unilateral expectation or an abstract need is not a property
interest entitled to protection.". Webb's Fabulous
Pharmacies, Inc.. v. Beckwith, 449 U.S. ISS, 161, 101
S.Ct. 446, 451, 66 L.Ed.2d 358 (1980). Where there is no
positive rule of law'or mutually explicit understanding,
there is no actionable claim of entitlement to the property.
See Cone v. The Florida Bar, 626 F.Supp. 132 (M.D. Fla.
1985), affd., Cone v. State Bar ofFlori~ 819 F.2d 1002
(11 th Cir. 1987). Applied to the case at bar, the plaintiffs
must show a protectable property or liberty interest before
such interest may be protected by the Due Process Clause.
The first property interest asserted is the
plaintiffs' property interest in the research materials and
draft pleading; formerly stored on the discs and hard drives
of the word processors removed in 2001. This claim does
not apply to the class as a whole because the parties agree
that only about half of the correctional institutions in the
State had such equipment at the time of the Nimer memo.
J:urther, the plaintiffs have alleged no statute, rule, policy,
or other sou,rce to support their expectation of ownership
of the' data stored on the agency's computers. Finally, the
plaintiffs whose data was stored on the removed
computers did have the opportunity, albeit on short notice,
to print out data before the computers were removed.
Under the circumstances, the Department is entitled to
judgment as a matter of law on the plaintitrs due process
claim for the data on Department computers.
The plaintiffs next claim the deprivation of due
process in their property interest in their right to bring
civil actions. This right appears to be grounded in the
right to 'access to courts, Article I, section 21 of the
Florida Constitution~ However, as discussed above, the
plaintiffs have not been deprived of their right to access

Perspectives - - - - - - -

_

the courts by the actions and policies of the Department
Accordingly, no deprivation without. due process of la"
has been shown.
Thirdly, the plaintiffs claim the deprivation 0:
their property interest in the use of typewriters in th~
institutions with Institutional Operating ProcedUre!
providing for such use. Similar to the data claim, thil
claim only applies to those class members fron
institutions where a· typewriter policy was once in effect
The court finds that the provision of typewriters in seml
institutions did not establish a mutual, explici
understanding that all prisoners (the class in' this case
would have an actionable expectation that the conveniellCl
of access to typewriters at taxpayer expense woull
continue indefmitely.
The prisoners' asserted property right iJ
"reasonable access to legal research materials, fom
pleading" and the assistance of inmate law clerks" i
likewise not established by any statute or rule. A
previously noted, the right to access to courts is the rig\'
to "a reasonably adequate opportunity to present claime
violations of fundamental constitutional rights to til
courts" and is not synonymous with a right to a fre
standing library or to legal assistance. Lewis v. Casel
518 U.S.343. 351, 116 S.Ct. 2174,2180,135 L.Ed.2d 60
(1996). Because the plaintiffs have not establishe
property interest in particular research materials, forms, (
a particular system for assistance of inmate research aide
no deprivation of due process has been shown.
'
Items 5 and 6 ("e" and "f' of Count II in til
Amended Complaint) are the plaintitrs property interesi
in their personal legal material and m8i~ and property u
liberty interest in "their familial relationships." Howeve
no facts have been alleged or shown to establish that tl
plaintiffs have been significantly deprived of leg
material, legal mail, regular mai~ or familial relationship
The Due Process Clause applies where a restraint I
limitation on prisoners "imposes atypical and significa
hardship on the inmate in relation to the ordinary incidetl
of prison life." Sandin v. Conner, SIS U.S. 472,484, Il
S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995); PJymel
Moore. 770 So.2d· 242 (Fla. 2000). The changes
Department policy regarding publications on family la,
mail room procedures, possession of personal leg
'materia~ etc. do not amount to atypical and significa
hardship in relation to the ordinary incidents of prison til
considering that the prisoners retain the ability to file leg
actions in hand-written form, to move the courts ,
extensions to time when necessary, to send and recej1
mail, and to maintain familial relationships via the mail
visits, etc. Because the changes in the Departmenl
policies and procedures at issue did not significanl
interfere with protected property interests, no due proce
violation is present.
Finally, the plaintiffs contend that they have be
deprived of their Ii~erty interests in immigrati

28 - - -

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proceedings due to the removal of immigration reference
book... from the libraries. This claim is limited to those in
the class of plaintiffs with immigration issues without
counsel to assist them. As already discussed. the rights. to
challenge a conviction, a sentence, prison conditions, and
the legality of a current incarceration were not
significantly interfered with by the removal of federal
immigration laws from the prison libraries. If a prisoner
has a right to counsel in particular proceedings, the
affected class member' may move for the appoinunent of
counsel to assist him or her in the individual case. The
process due in immigration proceedings is not sufficiently
dependent upon the Department's provision of
immigration statutes in prison law libraries to effect a
deprivation of due process when such research materials
are not provided by the Department.

the Florida Department of Corrections who have legal
needs and no means by which to purchase legal advice or
assistance." •

Rule Amendment
By Anthony Stuart
A notable amendment has taken place within the
Florida Administrative Code (F.A.C.). At Rule 33602.201(5)(a) it has been added that:

It is therefore ORDERED AND ADJUDGED

that:
I.
Plaintiffs' Motion for Summary Judgment
is hereby DENIED.
2.
Defendants' Motion for Summary
Judgment 'is hereby GRANTED and the court hereby
DECLARES that the prison regulations on prisoner mail
raised by the plaintiffs and set out in Rule 33-210.102,
Florida Administrative Code and on law libraries as set
out in Rule 33-501.301, Florida Administrative Code,
including the title lists, research aide provisions, and
library schedules do not deprive prisoners of the right to
access the courts under Article I, Sectiqn 9 of the Florida
Constitution. The court further declares that the changes
in the Department's policies and rules since .1996
regarding law library titles, mechanical and, electronic
typing equipment, and the other aspects of the prison law
library system challenged by the plaintiffs did not violate .
Article I, section 9 ofthe Florida Constitution.

2003~

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

1. If an inmate receives postage stamp~ in the mail. which,
added to the 'number already in his possession. place him
over the maximum allowed, he shall be allowed to send
the excess stamps out at his own expense. It is the inmate 's
, responsibility to send out the extra stamps as soon as they
are received. The stamps must be sent out; the institution
will not store excess stamps for inmates. Excess stamps
found in an inmate's property will be considered
contraband.
Also, at Chapter 33-602.201, Appendix One Property
list, regarding the number of stamps prisoners may
possess, the personal items list has been changed to allow
possession of 40, instead of only 25, one-ounce first class
postage stamps. These rule changes became effective July
8,2003.
However, be aware that Rule 33-210. I oI (2)(f), F.A.C.,
~till provides that prisoners may only receive 20 oneounce first class postage stamps in a letter. So, prisoners
can possess two regular books of stamps now, but
correspondents may still onIy send one book of stamps at
a time.•

DONE AND ORDERED this 6th day of May
in Chambers at Tallahassee, Leon County, Florida.

6S Percent Bill Dies
"Signed"
NIKKI ANN CLARK
CIrcuit Judge
Copies furnished to:
Ms. Robin L. Rosenberg, Esq.
Mr. Joe Belitzky, Esq.
Mr. Joseph Rogers, pro se
Mr. Gerald M. McKire, pro se

Senate Bill 618 sponsored by Senator Miller died
in the Senate Criminal Justice Committee.
The bill would have amended section 921.002 and
944.275, Florida Statutes, to allow prisoners under the 85 .
percent provision of Florida Statutes to earned gain time
up to 35 percent of their sentences instead of the present
IS percent. The measure would have applied to only
those prisoners with non-forcible felonies. This is bad
news for those prisoners hoping for the return of 65
percenL With the passing of the Florida budget, which
gave DOC additional money for more prison beds, don't
look for a reappearance of this bill soon.

•

The class is defined as "[a]1I persons who, now, or in the
future, will be incarcerated as inmates in a facility run by
1.

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Florida Parole Commission:
A Culture of Corruption
by Bob Posey
In the last issue of Florida Prison Legal Perspectives
(FPLP) it was reported that on May 9, 2003, the chairman
of the three-member Florida Parole Commission (FPC),
Jimmie L. Henry, had been forced to resign when the
Florida Department of Law Enforcement launched a
criminal investigation into matters conc~rning Henry and
the Commission. Although mainstream media reports
were unable to determine what exactly the investigation
was about, F~LP reported, details on widespread
mismamigement and misuse of taxpayers' money by the
Commission, but alerted readers that there was much more
that couldn't be reported right then because of the ongoing
FDLE investigation. In mid-July clearance was given for
more information to be released, as follows.
Jimmie L. Henry is being investigated behind
allegations, supported by documentation, that during his
tenure as a parole comm'issioner he used taxpayers' money
budgeted to the' Parole Commission to make personal'
purchases and fal,sified travel and expense records of the
Commission. According to'Stephen Dobson, a Tallahassee
attorney that Henry has retained, Henry has no comment
on those allegations or the more serious allegations now
coming to light that Henry was involved in covering up a
rape at the Commission and paying $50,000 to hush it up.
During 2002, Henry and the state's two other parole
commissioners, Monica David (who was appointed as
chairman in May when Henry resigfied), and Frederick
Dunphy, agreed among themselves to quietly pay $50,000
in taxpayers' money to a part-time Commission employee
who had accused the agency's human resources director of
sexually harassing and rapil1g him.
The alleged rape by Human Resources director Frank
Trueblood, 37, occurred in 200 I, and although many at the
FPC knew about the claim, including the commissioners,
it was not reported to the police until July 8, 2003, almost
a month after Henry resigned and the CommissiQn came
under fire by the FDLE. In Florida, failure to report a
crime is a crime itself; .
, Commission Chairman Monica David was the one who
finally reported the alleged rape to the Leon County
Sheriff's Department in July, but even she waited until
Trueblood resigned from his $75,000 a year job before
going to the police. Strangely, only three days before
Trueblood resigned David had approved a $4,100 pay
raise for him. And the story only gets worse.
In June 2001, about the same time that the employee
began complaining thai Trueblood had homosexually
raped him, Henry authorized a $6,500 pay raise for
Trueblood and reported in Commission records that he
was an "exemplary" employee. While serving as
chairman, Henry had also authorized as much as $3,500 in
bonuses for Trueblood. Exampling just how deep the

Perspectives

~--------------

corruption went, eight months after paying the alleged
rape victim $50,000 to agree 'to take no legal action
'against the Commission or Trueblood, Henry in a job
review described Trueblood as an "innovative, creative,
loyal" employee who deserved another bonus.
It is unclear what, if any, 'actions FPC officials took to
investigate the rape victim's accusations against
Trueblood. Some files relating to the employee's
complaints of sexual harassment and assault disappeared
from the Parole ,Commission offices after the payoff was
made, according to other state officials.
Tom Gallagher, the state's chief financial officer with
the State Treasury, said the payment was made after the
Florida Commission on Human Relations reviewed a
complaint filed with that agency 'by the alleged victim and
found in his .favor. .The state Division of Risk
Management approved the $50,000 payoff. Gallagher said
the settlement avoided more costly litigation. It also
avoided the public being informed about the corruption
within the FPC for two years.
Officials' at the Commission on Human Relations now
refuse to release records of the complaint that had been
filed with them citing a confidentiality exemption from
Florida public records ,.laws. FPC Chairman Monica
David's office told the St. Petersburg Times'they could
not immediately produce. ariy record documenting the
incident or how the FPC handled the matter:
Leon County sheriff's Maj. John Schmidt said that no
one reported the alleged sexual attack to law enforcement
when it occurred two years ago. Although it is obvious
that all of the FPC commissioners and officials at the
Commission on Human Relations and Division of Risk
Management would have had some knowledge of the rape
allegations, for two years they kept quiet about it. Monica
David only reported it after it became clear that the FDLE
was not going to allow it to remain under the rug where it
had been swept.
On May lSI of this year,Florida Prisoners' Legal Aid
Organization, which produces FPLP, officially launched
the Parole Project. The purpose of that project is to focus
public attention on the Parole Commission, expose the,
corruption, and increase the number of paroles, while
reducing the number of parole "Technical" revocations.
As the Parole Project continues, expect further revelations
about the Parole Commission. As stated the last FPLP,
these are just the first ripples in a wave of change bearing
down on the Florida parole system.
[Sources: FPC records; Div. Of Risk Management records; Leon Co.
Sheriff Dept records; St. Petersburg Times, 7/18/03; Auditor General
records and reports.]
For information on how you, as a parole-eligible prisoner, parolee, or
family member or friend, of same, can bea part of the FPLAO Parole
Project, write:
'

FPLAOlnc.
Parole Project
P.O. Box 660-387
Chuluota. FL 31766 •

30---------------

- - - - - - - - - - - - - - FLORJDAPRISON LEGAL

Perspectives - - - - - - - - - - - - - _

Florida Prisoners' Legal Aid Organization Inc.

I

BECOME A MEMBER
YES ! I wish to become a member of Florida
Prisoners' Legal Aid Organizatio~ Inc.
3. Your Name and Address (PLEASE PRINT)

1. Please Cheek ,/ One:
CI

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Email Address and lor Phone Number

S60 Gov't AgencieslLibrarieslOrgsJetc.

q,- P1Cl1SC make all c:bccks or money orders payable to: Florida Prisoners' LcgaI Aid Organization. Inc; Please complete the above form and send it
with the indicated membership dues or SI;IbscriptIon amou~t to: Florida Prisoners' Legal Aid Organization Inc., P.O. Box 660-387, Chuluota, FL
32166. For family members or loved ones ofFlorida prisoners who arc unable to afford the basic membership dues. any contribution is acceptable
for membership. New. unused • US pos1agC stamps arc acceptable from prisoners for membership dues. Memberships NIl one year.

..!P"

. -:;

,::iI~

'.

Legalin/omrtlllon on Prison DlsclpiIne.

Donations Needed

~andamlU.

FPLAO is calling on members and supporters
to make a donation to help us obtain additional
office space. Donations, in any amount, large or
small, are needed to purchase a mobile type office
where volunteers can work. Approximately $6,000
will be needed to purchase a good, used office
building of that type. We have an offer of rent-free
property where such office will be set up within two
blocks of the niain FPLAO office. The additional
workspace is badly needed with the several projects
FPLAO has going on. So far almost $400 has been
donated to this cause. Please continue sending what
you can so we can get the needed additional office
space as soon ~ possible. Thank you.
Ii'

~

- . ..--'tP..
,

:--'4.J.".:-' ,.

31

and Appellate Review

Soft cover· 313 pages- Albert PubllsblDg ~LLC (2002)
Speelal Low Price for Prisoners: 51·US plus $3.95 S&H

.,

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,

of

~r):
.~.: -;.,p".;d;" ~~".'

"

Plorlda Prisoner's Litigation Manual
Volume 1

,

A Must Have Book for Every Florida Prisoner.
Oolns time In a Flo~da prison? If so, you need a copy of FiOl"idD
Prisoner 'oS -litigation Manual, Volume J. Every yCar thousands of
disciplinary reports arc written against Florida prisoners. The results
arc confinement; loss, of gaintlmc; restrictions on mail, telephone
llccess, vlsltatJon; and, 'In nuiny cases, confinement on Close
Manaacment for months or even years. Most DRs, however, can be
beat If you have the right infonnation' and know the proper
procedures.. How can DRs be efl"ecuvely defended against and
dIaI1coScd? What arc the proper legal and administrative remedies?
Whllt legal proteet.lons exist? 00 prison officials have to comply with
their own rules? Whllt can be done to stop enfon:cment ofmode up or
Invalid rulcs? How do you file and litigate a Petition for Writ of
Mandamus, Certiorari, or Appeal? Vohone 1 of FlorldDPriso!U:,'s
Lltlgallon. Manual will answer all those questions and many more.
It's a self-help survival guide for Florida prisoners.
Order your copy todayl To order SCIId $24.95 plus $3.95 shippinll and
handling to florida Prison Legal Perspecllves, Ann: Litilllltion Manull!. PO
Box 660-387, Chuluota FL 32766.
All orders will be shipped from the publisher. Allow 4-6 weeks for delivery.

SUBMISSION OF MATERIAL TO
FPLP
Because of the large volwne of mail being
received, fiJ1l1nciai considerntions. and Ibc
inability to provide individuallcgal assistance.
members 'should not "send copies of. legal
doc:umenCS of pending or potential cases to
FPLP without having first contaceed the scaff
.and receiving directions to send same: Neither
FPLP•.nor its staff. are ~nsib!e for 'Wly
unsolicited material sent.
Members arc requested to continue sending
news information. newspaper dippings (please
include name of paper and date).
memorandums. ¢\otocopics of final decisions
in unpublished cascs, and potential articles for
publicatiOn. Please send only copies of such
matcriaI dntt do net hlIvc to be retumed. FPU'
depends on YOU. its readers and members to
keep . inf0rmc4. Thank you for )'Our
coopaDIion end participation in helping to get
the news out. Your efforts arc greatly
appreciated.
.

beal published since 199O. It is edited by w~.
Paul Wright. E=h issue is pncbd wiIr2 ~
and malysis of ra::cm court duisicms &om EJ'OIJmt d= oam:i1Jy
cfc3liq with priso=r rights ad wri1tal fi'om II prisoMr
pcnpeetive. 1M 1DDpz:ine o8ea cmia l!Iticles &em
auomcys givtag how-to liIipimI advise. Also isldudcd in
ctdJ issue are IINS Idides deaIin8 with ~
ICnJgfe IUId aaMsm hm the u.s. =I mcmtd the 'iI'arld.
A.ammI subscription mtcs OR S18 tor priscncn. If you em'l
oftCrd to saul SI8 lit CftCe" satd d !east S9 IIItd PLN Wi'll • ~.
pnmdC lire Wucs Itt SI.$O =:II rar
mcmh at»scaiftiou.
New aIld mmscd postage tIimIpI or cmbossecl aMlcpes may
~

II SO, please complete the below iuf'ormatioD and man it to FPLP so
.
that the mailing list can be updated:
NEW ADDRESS (pLEASE PRINT CLEARLY)

o.

beuscdupaymeat.
For ~ec1

~

the )'ally subsc:riptioD

Name

me is m. lDstitDsicDal ar profcaidad (ldtamr:ys. libraries.

gcMI!IZIt!!d ~. Gipaiutiuas) iUbswiptiws n:tes arc

S60 II year. A ~ copy of PLN is lMiI4bfe Cor $I. To
subscribe to PLN. C01Itad:
PrUon Lq;::I Nnn
14GO NWBtJtIt St1Wt

IDIt.
Address

PAlBUS

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~MIIII to:

1rJtp:IIwww,prUtm/~o'8

EmalJ PlNat

Zip

State

City

See PLNs Website at

:_~org

1".-

r

;I ~
J .
Prist»t LqaI }Inn is D J6 page momh1y ~ ~1.'1'
PRISON LEGAL NEWlY

FPLP, P.O. Box 660-J87. Chuluota. FL 32766

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