FLORIDA PRISON LEGAL

ers ectives
VOLUME 9. ISSUE 2

AMERICA'S
REVOLVING
PRISONS
by Oscar Hanson

i million people are
incarcerated in U.S. prisons and jails,
more than at any other time in
America's history, and more than in
any other country in the world. Most
of them are frn-time, nonviolent
offenders;· many are mentally ill or
chemically dependent. Each year
almost 600,000 of them are released
back
into' our
co~unities..
Eventually, 95 percent of all
prisoners will be released back .into
society.
Many of those released will
be drug abusers who received little or
no substance abuse treatment for
their addictions while incarcerated,
or violent offenders who received no
counseling or illiterate drop outs who
took no classes and acquired no job
skills; essentially they leave prison
with the same problems they entered
with - or worse. Most of the

More than

ISSN# 1091-8094 .

MAR/APR 2003

opportunities
are
limited
or
opportunities to receive any available
essentially nonexistent or only
education or counseling must be selfavailable at the bottom of the pay
initiated, but the numbers seeking
scale. They often find themselves
such opportunities are few. Many
suddenly
confronted
with
otherS are sick; rates of mv,
overwhelming
financial
.hepatitis, and tuberculosis are
responsibilities-including
victim
significantly higher for prisoners
reStitution, court costs, supervision
than for freeworld people.
costs, child support-on top of starting
An overwhelming number of
over again with nothing and trying to
those released will be· . repeat
survive, eat, have a. place to sleep
offenders. Statistics show that 40
and transportation on a daily basis.
percent of them will be rearrested
In Florida, released prisoners. are
within a year of being released while
given a one-way bus ticket back to
atmost two-thirds can be expected to
their community and $100, which
be charged ~th a felony or serious
may help to explain why Florida's
misdemeanor .within three years.
recidivism rate is over 40 percent.
Only about 13 percent of releasees
Those
muhitudes
being
.will have participated in any kind of
released from America's prisons,
pre-release program to prepare them
most of whom are African American
for reintegration into society. Nearly
and Latino, although those races are
two-thirds of them will return to just
minorities in our culture, are faced
a few metropolitan areas, where they
with additional barriers to successful
will be further concentrated in
societal reintegration. While in 38
struggling neighborhoods that can ill
states felons either never lose the
afford to accommodate them.
right to vote or automatically have
When the majority of those
their civil rights restored at some
released leave prison, they frequently
face practical and legal barriers that . point after being released from
prison, in 13 states fonner felons
almost guarantees their perpetual
who have completed their sentences,
excl~sion from civil society.
Job

FAMILIESADVOCATES PRISONIiRS

Isolation Cause ofRecidivism
Mail Rule Challenge Update
Parole Presentation Pac;:kage

Notable Cases

~

DNA Reminder
Disparate Life Sentences

:

6
9
12

14
17
20

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

FLORIDA PRISON LEGAL

PERSPECTIVES
P.O. Box 660-387
Chuluota, Florida 31766
Publishing Division of:

FLORIDA PRISONERS' LEGAL AID
ORG.,INC
A SOI(c)(3) Non Profit Organization
Fax (407) 56800200
Email: fplp@aol.com
Website: www.fplllo.org

FPLAO DIRECTORS
Teresa A Bums-Posey
Bob G. Posey. CPL
David W. Bauer, Esq.
Lorco D. Rhoton. Esq.
Oscar Hanson, CPL
Linda Hanson

FPLPSTAFF
Publisher
Editor
Co-cdilOr
Rc:scan:h
AdminiSU'lltive AssistllJlt

Teresa A. Bums-Posey
BobG.Poscy
Oscar Hanson
Shcrri Johnson

FPLP ADVISORY BOARD
William VlUI Poyct
Philip Bagley-Tcny Vaughn
Michael Lambrix·JlUIICS Quigley
Linda GottJieb-Susan Manning
Enrique Diaz.Qcnc Salser
Michael Pabmr·Mark Sherwood
TrishMil1s

FLQIUIlA PlUSOH u:GAL PEaSPEC11VES(lPLP) it P'bIbbcI
UJlIO oix lima • yar by FIoridII'riIolIaI' LcaaJ Aid ~
Inc. (FPLAO), 15232 Sal CaIor.illIllM, OrIIIIdo, FL 32826-'134,
Jmilill,J I44ras P.O. Box 660-]87, C!JuJuog, FL ]:1766FPLP is .... ptOfil ~ lbcwiag Oft tile FIorilIa piIoa IIDd
crimiDd jllsti<c I)'tlaIII. FPLP pro\'icl:t • wllidc
informaIIon, UllI ...-..a all'ecIba ~ Ibd: lmIia, IilaldI,
IO'o'ClI Olla and Ibo gaxnl public orF1ctldL
b!lzailln otcrimo AlId l'Ocidi>Um, mollIt_ otlimily .... ciYlI
riatu, iIIIproWla CIlllIlliIiou or COIll!lIcalw, ptDlDIlI&Is &tilled CiOWI
...... ror priJor.at. IUld JlflllllOliJla ICCOllIlUbJIity orpiloa olIIdalJ
ue III iuua tile FPLP b~ to""",FPLP'. _1IlonIOy Y<l!uatea 1UIf~ mpolld 10 RljlIOSU (or
\qj&I1dvico. 1M to ...rumo·ot lllOlI tNI it RCCivcd UllI ~
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be
raponde6lO, bulllIlllOlI cIocs 1<CCi\.., iIll!iWIlIIIllImlioa
PamiaiaIl it ljI1Il1ed 10 rcpriIllllUlCrill appcarioa ID PPLP tNI
cloa !lOt IIll!icIIo i1 b copyrigIIIed proWIcd tNI FPLP UllI ""l'
indiooled IIlIhot ItO ldcnIUled ID tile ropdrll and • COPJ ot tile
~ in wlIidt tho lIlIluiaI iJ publiJlled i. pnwi4<d tile FP1P
pllllliJllcr.
Tho lIl&Iori&J in FPLP I!IouhI oot be RIied ... II ~
eiwion IlIlll lIlOY oot \lOlIlIin oufliciau iIIfClmIIliclI,o dcoI with •
JcsaI probIm>.
FPLP b lWlc>mUicllly I<ll\ 10 oIl IlI<ZIlhcn or fPlAO, Inc-, II •
maII!>cnIIip bmdil. Mmd>cnIlip l!lleI for PPLAO, 1fte., run Oft •
)wly buis IIld ItO S9 for prisolltn, SI' (or IilmiIy
~ $]0 lOr &llCmoyI/p:nlfcaian;ls,
S60 lOr
~. f..,wymombcn
IoYed ....
or I'risonm """ ora u:ahlo t. alIOnf Ibo t=io tI>OIIII>cnIlip tlua lIlOY
rccci>o mcmbcnIlip for lIIl)' size cIonaticm thoI t!lcy QIl al\bnl.

r... _

'0

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

and allegedly paid their debt to
society, can be disenfranchised for
life. Florida is one of those 13 states,
In fact, Florida has the distinction of
leading the nation in the number of
former felons who are prohibited
from voting. An. astounding ont>third
of
the . 1.4
million
disenfranchised former felons in the
U.S. are in Florida. An equaIly
astounding 31 percent of Floridian
adult black males no longer have the
right to vote.
It's questionable whether
many people thought about those sprt
of things when the rage to incarcerate
began to dominate American crime
policy about three decades ago.
Certainly someone envisioned that
almost all prisoners would get out
eventuaIly. What happens when they
do, however, is not a topic that held
the interest of the legislators who
passed mandatory sentencing laws,
abolished parole, and eliminated
funding for prisoner education.
As a result, prisoners are
serving longer sentences (85 percent
in most cases) while prisons have
become places where nothing is done
to help prisoners deal with their
issues and change their way of
thinking for a life outside that 95
percent of them will ultimately return
In a sense, America's
. to,
prisons
basicaIly
contemporary
replicate the social order that
produced the offenders to begin with,
. Their attributes are violence. idleness
and hoplessness.
But it wasn't
always like this.
Before the hardline stances
on prisoner sentences and the prison
boom, education and rehabilitation
programs were deeply rooted in
American corrections,
However.
over the years vocational and
educational programs for prisoners
have declined sharply while the
prison population has sweIled fourfold. Funding, once earmarked for
such programs, has gone instead
toward
building more prison
facilities.

Prison programs lost their
funding partly in response to
research in the late 1970's that
implied they had scant success in
cutting recidivism. But new studies
suggest that certain kinds of
programs do work to increase
employment and reduce recidivism.
Adult literacy and GED classes,
vocational training with a realistic
eye to the job market, cognitive
therapy for sex offenders, and drugabuse counseling that continues after
release have all shown modest but
cost-effective success.
A recent study released by
the
Virginia
Department
of
Correctional Education. in which exprisoners were tracked for fifteen
years, found that recidivism among
those who had pursued an education
while in prison was 59 percent lower.
More comprehensive studies on
prison educational programs have
shown that reincarceration is 20
percent less frequent for participants.
The irony to this story is that just as
the evidence for programs that
reduce recidivism was growing, ,the
wiIlingness and capacity to fund
them diminished.
Education is not the only
prison culture to change.
The
conditional release mechanism has
been restructured too. Resources for
supervising releasees have not kept
up with the growing numbers of
prisoners released, so caseloads have
become bigger. Over the past few
years Florida has tailored' the
conditional release statute to capture
as many prison releasees under the
umbrella as possible. As a. direct
result, the emphasis has been on
surveillance rather than more timt>consuming personal relatioQShip
where the supervising officer and
releasee share common interest: the
successful reintergration back into
society.
This translates to more
releasees being charged with minor
technical violations and with them
being returned to prison.
Indeed,
conditional
releasees, parolees. and probationers

2-----------------

FLORIDA PRISON LEGAL

make up. a rapidly grOwing class of
prisoners: in 1980 they accounted for
18 percent of admissions; today they
account for a third, and moSt are
returned to prison on technical
violations, meaning no new criminal
activity. In other words, technical
violations such as leaving a
designated area, not submitting a
monthly repO~ arriving home late aren't crimes, and it's not at all clear
that improving the capacity to detect
technical violations or locking up
more supervised releasees enhances
. public safety. What can be said of
this tactic is that it is expensive:
California, which sends more
violators back to prison than any
other state, 'spends approximately
$900 million a year to house them.
The larger problem, like the
one in Florida, is that discretionary
parole has been completely replaced
with a regime that eliminates much
of the discretion not only from the
parole commission but also from the
judiciary. In doing so the Florida
Legislature has removed some
powerful incentives for prisoners to
become the sort of people society
would want to send home again.
Joan
Petersilia,
a
criminologist at the University of
California at Irvine. published a book
entitled, When Prisoners Come
Home, which drives the point
perfectly. "A majority of inmates
being released today have not been
required to 'earn release' but rather
have been 'automatically reieased.'
Parole boards used to examine a
prisoner's 'preparation' for release,
including whether he or she had a
place to live. a potential job, and
family support. With determinate
sentences [fixed prison terms in
which parole boards have no say],
the factors are not relevant to release.
When offenders have done their
time, they are' released no matter
what level of support is available to
them or how prepared they are for
release."
Over the past year some of
the dismal facts about recidivism

Perspectives

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

ResoUfte materials: From Prison to
have come under new scrutiny and
Home, 56 page book, (2001), copy
have begun to generate some creative
available at no cost from: Urban
thinking. For one thing, conditional
release and parole clearly needs to be
Institute Justice Policy Center, 2100
M. St. NW, Washington, DC 20037,
reformed. It is not working; more
than 40 percent of released inmates
www.urban.org; Reare back in prison within three years.
Enftanchisement: A' Guide for
Individual Restoration of Voting
Part of the problem is the all - or ,nothing response to technical
Rights in States that Permanently
violations. In other' words, we need a
Disenfranchise Former Felons, 90
system that does not have as its only
pages, (2002), available from:
sanction ending the experiment of
Advancement Project, 1730 M St.,
supervised release for someone
NW Ste., 401, Washington, DC
entirely.
20036, (202) 728-9557,
Another area that needs to be
www.advancementproject.org •
explored is the involvement of
families and community groups in a
Oscillating Justice
prisoner's release plan before he is let
by Linda Hanson
out. Representatives of community
organizations need to enter the
In 1972, the United States
prisons and talk to prisoners about
Supreme
Court, in Furman v.
jobs they might seek once they're
Georgia,
ruled
that the Georgia
free. Counseling for prisoners and
sentencing
scheme
that allowed
their families before the prisoners'
defendants
to
be
sentenced
to death
release is vital too. When prisoners
was
arbitrary
and
violated
the
Eight
serve long sentences, as many have
Amendment's
prohibition
against
done recently, family ties are likely
cruel and unusual punishment. The
to be more attenuated, meaning that
effect of Furman was feh in many of
prisoners are likely to require more
the states that had similar sentencing
help to reconstruct them. While
schemes.
Florida was one of the
these ideas could deliver promising
many
states
that modified the capital
results, even more promising is the
sentencing
laws
to comply with the
larger idea this approach evokes.
requirements
established
in Furman.
It may be that as a society
Four
years
later,
the
Supreme
Court
we want to keep our incarceration
allowed
the
reinstatement
of
the
rates higher than those of other
death
penalty.
since
1976,
the
year
industrialized democracies. After all,
the moratorium was lifted, to the end
there is fairly good evidence that the
.
of last year, 820 people have been
prison boom was responsible for
executed in this country. Over 3,700
about a quarter of the decline in
on death row are waiting to be
others
crime in the 1990's although the
executed.
Only three nations latest statistics show an increase.
and
Saudi Arabia - ,are
China,
Iran,
But if society wants to keep our
knOWl)
to
have
executed
more peopte
prisons full, they must endow them
than
the
United
States
did
in 200 I.
with a purpose broader than
America's
high
ranking
incapacitation. Society must take up,
among
the
most
frequent
dispensers
in new form, the goal of remaking
of capital punishment is due in
prisoners for life beyond bars.
surprisingly large part to the
Society will have to accept that the
predilection of one region, the South.
question before them is not only how
'Fifteen
southern states
have
stringently they want to punish
accounted
for
81
percent
of
all
U.S.
people in prison but also what kind
executions
since
1977.
Florida
and
of people they want to see emerge
Texas accounted for over 40 percent
from it.
of the total executions during that
time.
3-~-

...:..-

_

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

Twelve states and the
District of Columbia allow no death
sentencing at al~ and the remaiDing
thirty-eight states differ as to what
kinds of crimes may be punished by
death and how old a criminal must be
to receive a death sentence.
Execution. rates also vary'
widely according to race - not· the
race of the criminal but, rather, the
race of the victim. Only SI percent
of murder victims over the past
twenty-five years were white,
however" more than 80 percent of
those executed during that time
period had been convicted of killing
whites.
In contrast, African
Americans were the victims in 46
percent of all murders; yet only 14
percent of the criminals executed in
the past twenty-five years bad been
convicted ofkilling black people.
States also vary widely in
how frequently they exonerate' death
-row inmates. Between 1977 and
2002 Texas executed 289 people
while exonerating only seven.
Florida executed S4 people while
exonerating II during that same
pen'ad.

..

Yet in Illinois, twelve people
were executed and thirteen
exonerated. These disparities raise
questions about the resources
available to defendants, the adequacy
of cOurt-appointed co~~ and
ultimately the accuracy of some
convictions that have resulted in
executions. Since 1913, 110 people
on death row have been fully
exonerated, sometimes mere hours
before their scheduled executions.
The advent of DNA testing has
added another element to the dispute.
Opponents of the death penalty cite
DNA-based exonerations as evidence
of how close states have come to
killing innocent people and how
likely it is that a mistake will be
made - and as evidence that fatal
mistakes already have been made.
Proponents
cite
the
same
exonerations as evidence that DNA
, testing
has
made
wrongful
executions less likely.

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

Ironically, supporters of the
death penalty also argue that
whatever small risk there is of
executing an innocent person, it is
more than offset by the lives saved as
a result of capital punishment's
deterrent effect. The data available,
howeVer, fail to bear that out. In
fact, for each of the years 1980 and
to 2000 the average murder rate in
states with capital punishment ranged
from 1.4 to 2 times as high as the
'murder rates for states with no death
penalty. Some studies have eVen
shown that certain kinds of
homicides rise following a state
execution - evidence of, what
researchers call the "brutalization
effect."
Is the death penalty
constitutional? The extreme variation
in how often and under what
circumst8nces the death penalty is
applied today suggests that· it may
not be long before the supreme court
is compelled once again to consider
the above question - another time.
[Source: Death Penalty Information
CenterlBureau ofJustice Statistics] •

Death Row
Population Declines
For the first time since the
Supreme .Court reinstated capital
punishment in 1916, the number of
prisoners housed on death row has
declined. Three states housed 40
percent of all death row inmates at
the end of 2001: California, with
603; Texas, 453; and Florida, 312.
In contrast, new Hampshire has no
one on death row.
In 2001, 90 people had their
death
sentences
removed
or
'overturned by the courts. Florida
leads the ,way with I I. Preliminary
statistics for 2002 show that Texas
conducted 33 of the 68 executions
nationwide.
The death row population
fell from 3,601 in 2000 to 3,S8 I in

2001, the first year-to-year decline in
2S years.

[Source: Tampa Tribune, 12116/02].

AGREEING WITH
OUR GOALS
IS GREAT.
NOW JOIN WITH
, USTO

,ACHIEVE THEM.
There are now over 70
thousaDd people in prison in
Plori!fa. Tbcir family members
lIIId frieads number in 1ho
huadreds of tbOusaDds. Despite
those -ben. lUId 1ho potcntiaJ
power '1hat they lepresent. die
prison system is rife with abuse.
neglect. poor IMMgcment and
actual convptioa.
Divided aad alone. wbetber
prUoncr. family member or
ftiend. you are often ipored.
shunned and Hed to by those ill
the prison bureaucracy wbeD'
you attempt to have a problem
comcted. 1bercsult is that tbe
abuse. ncstect and conuplion
.roDs over you - oneal a time.
Only through unity is chaDp
possible.
Florida Prisoners'
LepI Aid Orpnimtion is tbe
Iaraat lIIId oldest memberahipbased orpnizatiOJl of prilClDel'lo
their families. ftieads IDd
advocates in Florida. PPLAO
bas been on the fi'ont-line in
proViding a voice to address
yoW' conccms lIIId in advoc:atins
for prisoaers and their 1cmld
oiles. We WIlDt lUId aeed you to
jom us in tbis wolk by becomiDs
II member of FPLAO. Don't
wait on someone else to do
something, get involved.

4---------------

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

Perspecttves - - - - - - - - - - - - -

DAVID W. COLLINS, Attorney at Law
fonner state prosecutor with more than IS years of criminal law experience
"AV" rated by Martindale-Hubbell Bar Register o/Preemlnent Lawyers

.'Your voice in Tallal,assee representing prisoners in all
areas ofpost-collviction relief, including:

'.

appeals
Heggscases
habeas corpus
3.850 motions

writs of mandamus

clemency
representation before Parole Commission

Write ",e today about your case!
P.O. Box 541
Monticello; FL 32345
(850) 997·8111
"71Ie hiring ofQ ItIW)'tIr Is. an important decision thol should nol be basedsolely upon adl·erlisemtllts. Befon)'OII
decide. lUI me 10 sendyoufrrre written In/ormatIon about Ill)' qvali/kat/oM and operience." .

FLORIDA PRISONER'S LITIGATION MANUAL
Legal Information on Prison Discipline, Mandamus and Appellate Review
A MUST HAVB LEGAL GUIDE FOR ALL FLORIDA PRISONERS
~'I

highly recommend the FPLM for any prisoner living under the FDOC."
Paul Hamwi, Certified Law Clerk

"Outstanding! The first comprehensive self-help legal guide for Florida prisoners."
Sherri Johnson, FPLAO
"An easy to understand, valuable and important book for Florida prisoners."

Oscar Hanson, FPLP

ORDER YOUR COpy NOW!

)'OUI' copy lOdayl To order scad $24.115 pillS SUS IbIpping and
. IlIIIdllng 10 F7ortdi1 PrlsDn 1Apl1'e"P"ttws, Attn: UtlgDlian MBlluat. PO
Box 660-387, Chuluota FL32766•

Order

. 'Softcover - 330 p~ges - 8 Ih x 11 - Published by Albert Publishing Co. - allow 4 - 6 weeks

5-----

_

FLORIDA PRISON LEGAL

ISOLATION A
LEADING CAUSE
OF RECIDIVISM
by Steve Perrault
Ask anyone familiar with the
prison industry and most will tell you
that prisons are a terrible waste of
money. Almost no one believes that
prisons actually rehabilitate anybody.
Not the Wardens, who rarely track
such things~ not the prison guards;
and not, most especially, the inmates.
Even rank and file Americans have
given up on the idea. In 1970,
pollster Lou Harris of Lou Harris
and Associates, surveyed Americans
and found that 73 percent thought the
primary purpose of prison sho.uld be
rehabilitation. By 1995, only 26
percent did.
By comparison, 58 percent
of those questioned in 1995 felt
prisons were there to punish. At this,
prisons do very well. Beginning in
the late 1980's, Americans began to
build a new breed of prison~ in
Florida they are called Close
Management Units. Currently the
Florida Department of Corrections is
building a sleek, stark, and
frightfully
expensive
fortress
designed
to
warehouse
1200
prisoners in 8 x 10 isolation cells (at
Columbia CI). Those prisoners will
be locked
in
solitary, close
management cells twenty-fours hours
a day for years on end and given
nothing - not even work - to occupy
their hours. These types' of prisons
are designed to be so devoid of
stimulation that prisoners are, quite
intentionally, driven to the brink of
mental collapse.
Recently, Florida was forced
by litigation to reduce the number of
close management units as weU as
some of the inhuman conditions.
Currently
Florida
has
four
institutions designed as
close
management units. The aluminum
sheets that blocked sunlight, fresh
air, and view have been removed

)!

Perspectlves

from the windows of these units. But
make no mistake, the trauma these
units create is still present. A recent
expose in the USA Today paints a
very startling picture and shows the
trend to isolate prisoners. There is a
correlation between these super
prisons and the numbers of prisoners
isolated.
A recilnt survey of 34 states
by the Criminal Justice Institute, a
national
research
fIml
in
Connecticut,
found
that
the
percentage of isolated prisoners in
those jurisdictions rose from an
average of 4.5 percent in 1994 to 6.5
percent I8st year.
Prison officials say the
increasing use of isolation cells has
made their facilities safer and more
manageable, but mental health
specialists say the lack of attention to
how isolation can affect inmates long
after their release has put the public
at an increased risk.
The United States Justice
Department has moved plans into
place to reduce that risk. This year,
it allocated more than S150. million
to states to help violent offenders
before release with basic social
skills, education, and job training.
However, in many states, inmates in
isolation are denied access to
rehabilitation
programs
for
hypothetical security reasons.
Stuart Grassian, a Harvard
University psychiatrist who has
studied the long-term effects of
solitary confmement says, "The
prison system has forgotten that one
of its missions is to increase the
safety of the public when these
people are released. When everybody
was talking about getting tough on
crime, all we really did was get tough
on ourselves." Grassian continued
his analysis by saying, "Our system
has succeeded in making prisoners as
.agitated and violent as humanly
possible. What people forget is that
95 percent of these inmates get out at
some point. These people have no
clue about how to get along in a reallife setting. The only thing you can

do is pray they don't pick you as
their next victim."
Its obvious the prison
systems of America recognize this
axiom because many prisons notifY
local authorities by sending a
warning that release prisoners, who
after spending years in extreme
isolation
are
returning
to
communities with little or no
rehabilitation.
Analysts echo that
these releasees have little hope of
avoiding a return to crime.
Of the record 630,000 felons
projected. to be released th is year from
state prisons, the thousands who
were kept in solitary confinement for
much or all of their sentences pose
the most danger, authorities say.
The main culprit is the
"super .maximum" security prisons.
The scores of new "super max"
prisons across the nation symbolize a
crackdown on crime in which states
made sentences tougher and clearly
abandoned any pretense of trying to
rehabilitate inmates.
Prisoners housed in close
management units are typically kept
in small cells for 24 hours a day
except for brief moments allowed for
showers and, on occasion, a one-hour
per week recreation period. They
have no one to talk with, little or no
television, no windows, restricted
visitation with family memberS, and
little help in dealing with the
physical and psychological atrophy
that can result from such conditions.
Now, record numbers of
these prisoners and other felons are
getting out of prisons. It's an ongoing exodus that some law
enforcement officials believe is
partly to blame for last year's 2.1
percent increase in major crimes
nationwide, the first such rise' in
more than a decade.
It's unclear how many
prisoners are being released directly
from
isolation
cells
into
communities; states do not keep
unifonn statistics on such inmates.
However, during the past 2) months,
Florida . has released nearly 1,000

6-------

_

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

prisoners who were in close
management celIs.
States are just beginning to
examine the threat that such
prisoners pose after their release.
Law enforcement and prison officials
agree that the percentage of formerly
isolated inmates who are likely to be
arrested within ·three yearS of their
release easily surpasses the 62
percent recidivism rate for alI felons
that have been reported by the Justice
Department.
Former Texas District Judge
Fernando Mancias, who opposes the
broad use of isolation cells says,
"We've been destroying these
people, denying them access to
rehabilitation and releasing them to
their communities resentful and
angry."
American Civil Liberties
Union Attorney David Fahti has
challenged the conditions of solitary
confinement in many states. The
ACLU protests what Fahti describes
as a "life-shattering" policy of
punishment that stops just short of
the death penalty. "This should be a
huge concern in this country, not just
because of what is happening inside
prisons, which is catastrophic," Fahti
says. "Very little is being done to
help these people transition back
home. And most of them are getting
out. "
Grassian,
the
Harvard
Psychiatrist who has testified in
cases brought against prison systems,
says some of the hundreds of inmates
he has interviewed have called him
after their release "in desperate
straits." Grassian adds, "In many
cases, their ability to think. and to
reason is totally gone."
[Sources:
FDOC records;
Today, 12/12/02]. •

USA

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

Texas bas the most

inmates in isolation

The nwnber of inmates In isola':
ticn. a10ngwith theirpercentage
of the state's overall prison population. as ofjan. 1.2001. Chart
Includes figures only from 34
states and the Distrlct ofColumbla. wflIch responded to a survey
by the Crirnin.1J Justice Institute:
Percentage

ofoveraD
prison
Isolation popUlation
4%
998
17%
1.883
8,775

Inmates In

Ariz.
Ark.
Calif.
Colo.
Conn.
Del.

922

. D.C.
FIa.

Hawaii
Idaho
111.

525
96
592
4.001

3%
2%
16%

132
187

4%
5%

. 3,563

Ind.

1.443

Kan.

486
170

ICy.

Md.

1.120
2.715

Mich.
Minn.
Mo.

3,381

Mont.
Neb.

195

N.c.
N.D.
N.Y.

Ohio
Okla.
Ore.
Pa.
R.I.
S.C.

Tenn.

Texas
va.

8%
6% .
2%
5%

4%
12% .
4%
5%
1%
4%
8%
2%
3%
3%

262
68

378
39

5,961
1,022
497

294

Officials with Corrections
Corporation of America recently
acknowledged that they "dropped the
ball"'on following state rules when it
came to hiring correctional officers.
The
Correctional
Privatization Commission, which
oversees the state's five privately run
prisons, passed out a letter giving the
company until Dec. 2002 to. come
into compliance or the board could
meet to revoke the contract.
In March of 2002, the
Florida
Department
of
Law
Enforcement found 61 Correctional
officers at Gadsden C 1 who were not
registered with the state's Criminal
Justice Standards and Training
Commission, as required by state law
and the company's contract. The
company agreed to remedy the
situation, but a follow-up found 31
officers who had still not registered.
In addition, investigators
found that some officers hired had
criminal records and that prison
officials were not forwarding internal
investigations
of
officers'
misconduct to the state. •

2,207

27
627
1.795
9,239

1%
3%
10%

2,250

8%
5%
1%
2%

742

214
Wyo.

PRIVATE
PRISONS
UNDER FIRE

24

Total
SOUin': O1mlnal lustier Insliluir. 2001 Cormttonsy,.dlbook

.

ADVERTISING NOTICE
Due to a concern for our members, the FPLP staff
tries to ensure that advertisers in these pages are
reputable and qualified to provide the services being
offered. We .cannot meet every advertiser. however.
so members are advised to always personally contact
advenisers for further information on their
.qualifications and experience before making a
decision to hire an attorney or other professional
service provider. You should never send legal or
other documents to an advertiser before contacting
them and receiving directions to send such material.
For those wishing to advertise in FPLP. please write
for rate information. Address such mail to:
Florida Prison Legal Perspectives
Attn: Advertising
P.O. Box 660-387
Chuluota, FL 32766
Or
Email: FPLP@aol.com

7

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

PerspectIves - ,- - - - - - - - -

:; I_RH_O.T.O.N_&.H.A.Y.M
••
A.N..
, .P.eA.e_
LOREN D. RHOTON
Attorney At Law

"POST CQNVICTIONATTORNEY
"
'{
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... "'-':_, ..

..

DIRECT APPEALS
{+:: STATE POST CONVICTION,
~!) SENTENCE CORRECTIONS
~!) FEDERAL PETITioNS FOR WRIT
OF HABEAS CORPUS
~!} NEW TRIALS
{!: INSTITUTIONAL TRANSFERS

{+::

;.:,

412 East Madison Street
Suite 1111
Tampa Florida 33602 .
(813) 226-3138
-Fax (813)221-Z182

·.~~~.::.~;~.!~~~'i.Az~gl_i

··l

,;'

he hiring of a lawyer is an important decision that should not be based solely on advertisements.
, ' Befo~ you decide, ask U8 to send you free written iDformatioD about our q...l~tio~j ~

1-;.t1.~~",".~_ . ,_.~ ..~' __ '...:-,..... :, ~~

, .'

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8 --------------

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

FDOC Mail·Rule
Challenge Update
In the last issue of FPLP (Vol. 9,
Iss. I) it was noted that on Dec. 2, I
2002, Florida Prisoners' Legal Aid
Org., Inc., director, Teresa BurnsPosey, filed a formal administrative
rule challenge with the Division of
Administrative Hearings (OOAR)
against mail rules recently and
invalidly adopted and implemented·
by the Fla. Department of
Corrections (FDOC).· Those rules,
codified at Sections 33-210.101,
.102,
and
.103,
Florida
Administrative' Code, impose severe
new restrictions on routine, legal and
privileged mail sent to or from
Florida prisoners.
Most notably, the rules, that
were implemented Dec. 5, 2002,
arbitrarily restricts the amount and
content of mail enclosures that free
citizens may send to prisoners and
fail to provide any constitutionallyacceptable provisions whereby such
citizens may appeal mail rejections
to someone other than the rejector
before the mail is returned to the
sender.
In the above noted rule
challenge, Bums v. DOC, DOAH
Case 02-4604RP, the FDOC,
represented
by
the
Attorney
General's Office, has done nothing
but create delays, violate the,
procedural rules, and attempted to
mislead the administrative judge with
ex parte communications, paper
games and disparagement of Ms.
. Bums-Posey.
'The dep8rtment's
"defense" is that the mail rules at
issue only affect the rights of
priSoners and do not affect the rights
of free citizens - who have no right
to send mail to prisoners. Of course,
that "defense" is frivolous, but the
department's delay tactics have
prevented the, judge, so far, .from
ruling on that issue. FPLAO is
seeking sanctions against the
department. for wasting the court's
time with 'such frivolous defenses

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

and has moved for summary
judgment on the invalidity of the
rules. Confidence remains high that
the rules will be invalidated.
During the course of the
case, discovery rules were invoked to
obtain a copy of every document
received or generated by the FDOC
relevant to the challenged rules.
Among those documents were.all the .
objections to the rules that have been
field by prisoners. Out of the 75,000
Florida prisoners who are being
severely impacted by the rules, only
the following IS filed written
objections to the rules, according to
FDOC records:
Rexford Tweed -()1cee. CI
Merritt Sims - UCI
Arthur Boyne - Walton CI
Robert D. Edwards - SCI
Kurt Smith - FSP
Robert A. Edwards - UCI
Donald Dillbeck - UCI
Mark Osterback - Ham. CI
Randall Prater - Ham. CI
Eric Hoffinan - Glades CI
Victor·Chapman ...., UCI
Kenneth Pierce - Glades CI
Darryl Belgrave - UCI
Alan Yurko - Wash. CI
John Armey - Col. CI
Additionally,
FPLAO
directors and prisoners Bob Posey
and Oscar Hanson are., assisting
,FPLAO with the rule challenge, as
are .prisoners David Reutter and
Mark Ellis (Mark's outside records
custodian, Elizabeth Green, has filed
a separate challenge to the rules,
Green v. DOC, DOAH Case 024723RP).
Also in the last issue of
FPLP it was noted that Ms. Bums.Posey had filed a petition with the
FDOC to adopt a rule proViding the
require,d due process for an appeal by
citizens whenever the FDOC rejects
their routine, legal or privileged mail.
The FDOC rejected' that petition,
claiming no law exists requiring such
due process. Ms. Bums-Posey has
now fiI~ a Notice of Intent to Sue
with the Dept. of Insurance as a
preliminary to a legal action against

the }'J..)(J(; on that issue. (Prisoner
Mark Osterback currently has a
federal case against FDOC's
practice of returning rejected mail to
the sender before a prisoner can file
an appeal of the rejection, Osterback
v. Moore, Case 4:0ICV-76-WS (N.
D. Fla.).)
FPLP will keep readers
updated on these important events as
they proceed. . '
'

FAMILIES AGAINST
INFLATED RATES
(FAIR)
CAMPAIGN
During ,August '2002, Florida
Prisoners' Legal Aid Organization
initiated the Families Against Inflated
Rates (FAIR) Campaign. The purpose of
the campaign is to reduce the collect-call
telephone rates being charged the
families ofF,lorida state prisoners.
The strategy of the FAIR Campaign
involves organization of family
members, loved ones and advocates of
prisoners into a grassroots movement to
speak out, support, and. push for
administrative and legislative changes to
eliminate the Florida Department of
Correction's discretion to award the
Collect-call
phone
contracts
to
companies
that
guarantee
the
Department the highest kickback
commission, instead of .gulU'lUlteeing the
lowest rates to families.
.
Currently, the monopolistic rates
being gouged out of prisoners' families,
who are struggling to maintain their ties
with
those
incarcerated,
are
unconscionable. While the general
public can make collect phone calls to
anywhere in the U.S. for about 10 cents a
minute, a 15-minute in-state collect call
for prisoners' families costs over $5.
Out-of-state call rates are even wors~,
averaging $20 for a 15-minute caiJ.
These monopolistic ·rates negatively
impact frequent communication between
.prisoners and their families and often
place an onerous financial burden on
families. Consequently, family ties and
relationships . suffer and are often
strained.
The exorbitant rates are a result of the
FDOC's
and
telecommunication .

9-------

_

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

companies' greed and willingness to
sacrifice family ties for profit. Between
them, the FDOC and MCI WorldCom
are now bilking almost $40 million a
year from the families of Florida
prisoners (with the FDOC getting more
of the split than MCI WorldCdm).
Many families, especially those out of
state, who can only visit infrequently,
now cannot afford the phone rates to
maintain communication with an
incarcerated loved one. Children of
incarcerated parents are having thelf
ability to communicate strained or
broken, raising their at-risk factor.
Elderly parents on fixed incomes cannot
afford to accept the phone calls of their
incarcerated sons or daughters. This
cannot continue.
,Prisoners are called on to participate
in the FAIR Campaign by encouraging
their families and friends to get involved
in the campaign. Families and friends
can get more infonnation on the
campaign and how they can participate
by
: visiting:
www,fplao.orgfFamilylssues, or by
writing: FPLAO, FAIR Campaign, P.O.
Box 660-387, Chuluota, FL 32766

PRISON
CENSORSHIP SUIT
SETTLED FOR
555,414.31
Seattle, Washington - February 24,
2003 - A federal lawsuit filed against
the
Oregon
Department
of
Corrections (DOC) on April 2, 2002,
by Prison Legal News magazine has
been settled for $55,414.31, which is
believed to be the largest damages
awarded in a prison censorship case
involving a publiSher in the U.S.
The lawsuit alleged the
Oregon DOC was censoring Prison
Legal News and informational
brochures mailed to Oregon
Prisoners by standard (Lk.a. bulk
mail) . and media (book) rate mail.
The lawsuit also alleged that Prison
Legal News was denied meaningful
opportunity to .challenge the
censorship by being denied notice of
when it occurred and the lawsuit
asserted prisoners were wrongfully

Perspectives ' - - - - - - - - - - - - - - -

being required to pay for magazine
subscriptions and books from their
prison trust accounts.
The case was settled after
discovery was conducted, but before
motions for summary judgment had
been filed.
.
Prison Legal News had
previously won a laWsuit against the
Oregon DOC over its ban on
prisoners receiving magazines sent to
prisoners at the bulk mail postage
rate. After losing at the District
Court level, Prison Legal News won
an appeal in the Ninth Circuit Court
of Appeals. Prison 'Legal News v.
Cook, 8 F.3d 1145 (9th Cir. 2001).
On remand to the District Court, an
injunction was entered prohibiting
the censorship of mailings based on
postal ciasslfications, ordering the
Oregon DOC to provide notice and
opportunity to publishers to
challenge censorship. Prison Legal
News was also awarded $58,000 in
that prior case.
This most recent case arose
when the· Oregon QOC failed to
abide by the District Court's
injunction in the prior ~e. Now,
once again, the Oregon DOC has
agreed to comply with the
injunction's provisions and pay
Prison Legal News an additional
$39,914.31 in attorney fees and costs
and $15,500 iri damages: The court
will retain jurisdiction for one year
this time to ensure the Oregon DOC
complies with the settlement.
Prison Legal News v.
Schumacher, U.S.D.C. OR, Case No.
02-428-MA.
[Note: Subscription information for
Prison Legal News can be found on
the back page of this issue of FPLP-

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INTERNET RESOURCES
Below arc
Inlemel wldfesscss when: infonnalion can be
found prinlCd lIIld mailed 10 prisoners.

florida Suprtme Court OpiolollJ
M.W, fUIl'.uj/. eJII/opiniOlwsupreme
V.S. Supreme Court and Federal Couru
wl.,• .jinJlulV.comicasteode '
Florida SllllutCl-Lcglllalloa
..."..,Ieg.slolejI. UJ
FOOe Chapter 33 Rules
\I"\I·\I·.Jc "/lIIl!jI./lJ:"secf"l!laryl/eguI1chJJ

Florida Govrrnment Omen Directory
"lfI"

m>j1o"Ja. comItn}j1oric/aldirtCfory

ed].
CALL 1-877·USA·JOBS ror rd'errul to
the nearest employment agency that
should be abte 10 help you with the Work
Opportunilles Tax Credit and Federal
Bonding Program.
For employers who hire exprlsoners the
WOTC gives a tax write-orr while the
FBP provides up to 525,000 In Insurance
in case or then. For more Into on FBP,
call1·800-23J.21S8 or see
www.bonds4Jobs.com

10---------------

----------~-- 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
*WITHDRAWALOFPLEA
*ILLEGAL SENTENCES
*ACTUALINNOCENCE
*I.N.S. DEPORTATION
I am a former AssislaJlt State Attorney (Felony Division Chief), Assistant Public Defender (Lead Trial Attorney), and member of the
faculty at the University of Florida College of Law. I have devoted over 2S years to the teaching and practice of criminal defense law.
and I am an author of a 1,250 page text on federal practice iIi the Eleventh Circuit The major throst 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.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ 11

FLORIDA PRISON LEGAL -Perspectives

Parole Presentation Package
by Dale Bass
At Sumter Correctional Institution, prisoners have
an excellent opportunity to attend an educational class that
instructs them in how to prepare a parole presentation
package. This may very well be the only class of its kind'
offered anywhere within the FDOC. This instructional
class offers no legal advice. charges no fees, and is, open
to anyone on the compound that wishes to attend. The
Sumter CI Lifers' Group presents this as one small portion
of its activities.
. ~e Sumter CI Lifers' Group is a unique
orgamzatlon. Foun~ed ten years ago, it has a current
membership of 11 5 voting members, 81 associate
members, and 122 pending members.
The group
officially titled the Captain J.A. Shultz Memorial Lifers:
Group~ named after the original sponsor, hosts over twenty
educatIOnal courses and meets each Friday, Saturday, and
Sunday in the institutional visiting park. It is not unusual
to fmd over 150 men lining up to attend an average
meeting. The group's mission statement speaks of selfbetterment through service to others. One of the twenty
plus ~.?rses conducted each weekend, and highlighted
here, IS How To Prepare A Parole Presentation Package."
This class began on October 6, 2002 and was
designed to last approximately 12 Saturday evenings. It
was based on published information from a variety of
sources. The class was developed and facilitated by Dale
Bass and Bill Hoertz. The first class had' 40 participants
and enrollment for a second class has already begun.
The facilitators
spent
months collecting
information and arranging it in an easy-te-understand
format.
They presented it, complete with handouts,
sample letters and documents, overhead projections, and
guest speakers, in a manner intended to serve as a guide to
parole-eligible prisoners facing the often confusing taSk of
preparing a presentation to the Florida Parole
Commission.
. As all parole-eligible Florida prisoners know, the
\Iorlda Par~le Commission is silent as to what they would
hke to see m regards to a request for parole. There is, of
course, the standard advice to remain free of disciplinary
reports and to take advantage of institutional programs.
But is this enough? Statistics clearly show that the
prisoner seeking parole in Florida faces tremendous odds.
Other states, however, offer published guidelines. Much
of the material from the SCI Lifers' Group class has been
taken from these sources and adapted to fit the situation in
Florida. In addition to material, personal experiences and
observations are offered by several of the Lifers' Group
sponsors who are ex-cons and ex-parolees.
It is not a coincidence that many of the Lifers'
Group sponsors are ex-cons and ex-parolees. These are
men who have made the successful transition from prison

12

---------

to society and come back into the prisons to share their
experien~ and guide .prisoners who are striving to
accomphsh the same thmg. Most of the spoiJsors are·
as~i~ted with the Bill Glass Prison Ministry or the
Ch~ls~lan Motorcycle Association.
They have an
unhmlted love for their brothers in blue, they are proof
that change is possible, and they volunteer their time to
help make it happen. Of the sixty-something men that
these sponsors have helped get out of prison, only one has
been returned.
During the twelve week 'class on how to prepare a
p~le presentation package, participants are constantly
remmded that there are not set-in-stone rules. There are,
however, some basic concepts· that are highly
recommended. Participants in the class are encouraged-to
use these components when preparing their presentation
.•
package:·
.
The Cover Letter, addressed to the Chairman of
the Parole Commission, should be brief. Simply state that
three (3) complete presentation packages are enclosed, one
for each commissioner, and ask for serious consideration.
Table of Contents should be the fm document in
the package. It should list the components in the order in
which they appear. You may choose to use page numbers
or labeled dividers between the sections.
The Parole Plan is a one-page document stating
.where you intend to live .and with whom. Give some
details of whQ you intend to live with such as their relation
to you, their background, their educational level, place of
employment and how to contact them. If you have
employment lined up, state where, doing what, and
expected salary. If you have any support groups lined up
such as a church, AA, NA, etc. Give the details and list a
contact person.
It is always a good idea to subinit at least tWo
plans (Plan A and Plan B); this allows the commission to
reject one if they are uncomf~rtable with it and consider the
alternate one. Any prisoner that has beeri incarcerated a
long time should give serious consideration to seeking
acceptance to a halfway house and making it their
intended resident on the plan.
A Short Essay, as a part of the package, is the
prisoner"s opportunity to speak directly to the
commissioners. O~t1ine briefly what changes you have in
your life and how you intend to keep from re-offending.
Keep this short and to the point. Do not attempt to retry
your conviction before the commissioners.
A Resnme" is strongly recommended as part of
your presentation package. Even if you already have a
promise of employment, it's a good idea to show the
commissioners that you have the skills and/or experience
necessary to find employment. Keep this document to one
page. Most prison libraries have books that will guide you
through the resume process. Take advantage of these. It

_

- - - - - - - - - - - - - - - FIaORIDA PRISON LEGAL

..

is suggested that you craft your resume to highlight your
employability.
Achievements you have acquired while in prison
are an important component of your presentation package.
This serves to show that you took advantage of every
possible avenue towards bettering yourself instead of just
hanging out and kicking the bobo with the fellas.
Everything positive that you can doc~ment should be
included. GED, vocational courses, Bible study courses,
college correspondence courses, library programs,
psychology department programs, AA, NA - don't leave
anything unmentioned.
Actual copies of these
accomplishment certificates should be forwarded to the
commission as you earn them to be included in your file
there. In your presentation package you will want to list
these accomplishments with a notation $it copies of the
certificates are in your file at the commission's office.
Many prisoner:s have recently discovered that the
institutional classification departments will no 'longer
accept program completion certificates for inclusion in
their institutional records. Don't let this be of major
concern; the parole commission will accept them for your
file there and it is advised that you take the originals with
you to show the parole examiner.
Support Letten from family and friends are
important. These should clearly state that the writer
supports your request for parole and that they are willing
to assist your transition however they can. Support letters
should specifically mention areas such as financial,
emotional support, clothing, transportation, employment,
and social adjustment. These letters should be one page
maximum, clear, and to the point. All letters should
include the sender's name, address, and phone number.
Support letters may be sent to the commission at any time
(to be included in your file there) and it is recommended
that your presentation package contain up to 10 ofthese.
Other tips: Should your presentation be typed or
handwritten? There are valid arguments for each. This is
an individual decision and should be carefully considered.
It is strongly recommended that each document in
the presentation package be no more than one page in
length. Don't overwhelm the commissioners and thereby
reduce the chance of a thorough reading ofyour package.
Make at least four copies of your presentation
package. Mail three; one for each of the commissioners,
to their office, before your hearing. Take one with you to
show the examiner. You may want to send a copy to each
person who goes to your hearing to speak on your behalf.
One of the Lifers' Group sponsors who goes to
parole hearings to lobby on behalf of parole-eligible
prisoners recently shared this advice with the dass: The
commission does not want to hear a prospective parolee
claw his innocence. They do not want to hear about a
miraculous religious transfonnation (He says that the
commissioners are Christians but they have been burnt

Perspectives

with stories like that before). They do, he says, want to see
documentation of completion of druWalcohol programs
even if the crime or record of the offender does not
specifically state an involvement of substance abuse.
Finally, he says, the commissioners give significant
consideration to all documentation of program
accomplishments.
A final piece 'of advice is pertinent; never forget
that parole is an act of grace (a gift) and shall not be
considered a right (FS 947.002 (5». Parole is not granted
as a reward for doing what you are suppose to do.
Therefore, to increase your chance of parole, do
everything you can, above and beyond the routine, to
convince the commissioners you are working on change.
When you complete your presentation package,
probably after numerous rewrites, bind you final product
into a neat and orderly package. Emphasis should be on
neat, clean, clear, and concise. The commissioners know
that prisoners don't have access to state of the art
equipment, so just do the best you can with the tools you
have. Always keep in mind that you are attempting to sell
yourself; your future depends on it. •

Seeking to contact the family of Robert Bruce.
Please contact PLAA, P.D.Box 30280, PMB Ill,
Phoenix, AZ 85046-0280

-NEEDEDPHONE BILLS

.

Several months ago FPL,P staff asked
prisoners and their families to send us copies
of phone bills showing the high rates being
charged families to accept phone calls from
their incarcerated loved ones in Florida
prisons. We got a good response. We have
the in-state rates pinned down. We are
asking for more bills on out-of-state calls.
These bills are needed to support the
Families Against Inflated Rates (FAIR)
Campaign effort to get the rates reduced.
Please send us a copy of your phone bill
showing how much you are paying to
inaintain your communication and
relationship with a Florida prisoner. Send to:
FPLP
FAIR Campaign
P.O. Box 660-387
Chuluota, FL 32766

]3 - - - - - - - - - - - - - - - -

FLORIDA PRISON LEGAL

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

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

FEDERAL DISTRICf COURT
Gonzalez v. DOC, 16 Fla. L. Weekly
(Fed) C193 (lIth Cir 1110/03)
In this case the Eleventh
Circuit Court of Appeals held that a
certificate of appealability (COA) is
required for appeal from an order
denying a true Rule 60(b) motion,
one which attacks a prior federal
court habeas corpus order denying
habeas relief from a state court
judgment of conviction and sentence,
instead of attacking underlying
conviction and sentence Judgment
itself.
Recently,
the
Eleventh
Circuit held that the 28 U.S.C. 2253
(c)(t) requirement of a COA applies
to an appeal from the denial of a
Rule 60(b) motion if that motion is in
reality an attack on the underlying
conviction and sentence instead of a
.challenge to the previous federal
court order denying relief from that
conviction and sentence. In other
words, if the motion.is in reality a
successive application or motion for
relief parading as a Rule 60(b)
motion, an appeal from the denial of
it cannot proceed without a COA.
See: LoZo \I. U.S.• 16 Fla. L. Weekly
Fed C 120(b)(11 1b Cir 12/16/02).
The threshold question in
this case is different, because this is
an appeal from the denial of a "true"
Rule 60(b) motion-one that attacks
the prior federal court habeas order
denying relief from the state court
judgment of conviction and sentence,
instead of attacking the underlying

conviction and sentence judgment
itself as the motion in Lazo did.
In sum, the Eleventh Circuit
aligned itself with five other circuits
and held that an appeal may not be
taken from any order denying Rule
60(b) relief from the denial of a 2254
petition unless a COA is issued.
The Eleventh Circuit also
clarified the law with respect to Rule
.60(b) motions, citing its decision in
Mobley \I. Head•. 306 F. 3d 1096 (11 th
Cir. 2002) that concluded that under
post-AEDPA law all Rule 60(b)
motions in habeas cases are to be
treated as second or successive
petitions.

STATE SUPREME COURT
Slale v. Klayman, 27 Fla. L. Weekly
S951 (Fla. 11/14/02)
The Supreme Court accepted
jurispiction in this case to answer a
certified question of whether the
supreme court's decision in Hayes v.
Slale, 765 So.2d I (Fla. 1999) be
retroactively applied.
The holding in Hayes
established that Florida's drug
trafficking statute applies only to
Schedule I or II drugs or to mixtures
containing Schedule I or II drugs.
The question presented in this case is
whether that holding should be
applied to final cases wherein the
lower courts construed the statute
differently and imposed trafficking
convections based on mixtures that
did not contain a Schedule I or II
drug.

The Supreme Court held that
this clarification of extant law must
be applied to final cases, citing Fiore
v. White 531 U.S. 225 (2001) where
the United States Supreme Court
held that a "change" in the law may
be analyz.edin terms of retroactivity,
a "clarification" in the law does not
impli~te the issue of retroactivity.
Thus, under section 893.135 (1) (c)
I, trafficking in a Schedule III drug
or mixture thereof (as in the instant
case) was never intended by the
Legislature to be a crime.

Bunkley v. State, 27 Fla. L. Weekly
S967 (Fla. 11121/02)
In this case the Florida
Supreme Court accepted jurisdiction
to answer a question certified by the
Second District Court of Appeal on
whether the supreme court's holding
in L. B. v. Stale, 700 So.2d 370 (Fla.
1997), that a folding· pocketknife
with a blade of four inches or less
falls within the statutory exception to
the defmition of a "weapon" found in
section 790.001 (13), be applied
retroactively.
In sum, the supreme court
answered the question in the
negative. The court reasoned that the
was not a
decision in L.B.
jurisprudential upheaval under Wilt
v. Stale, 387 So.2d 922 (Fla. 1980)
(discussing retroactivity) because L.
B. was not a "major constitutional
change of law." Rather, L.B. was a
routine statutory construction case
wherein the court construed and
refined
the phrase "common
pocketknife" in the face of evolving

_ _ _ _ _ _ _ _ _ _ _ _ _ _-14 - - - - - - - - : . . - - - - - - - - - -

- - - - - - - - - - - - - - FLORIDA PRISON LE~AL

circumstances in the legal field. The
decision thus "affords new or
different" guidelines for Florida
courts to use in applying the statute
and is an evolutionary refmement in
the law.
[Note: Justice Pariente wrote an
excellent dissenting opinion wherein
she believed that under the recent
United States Supreme Court
decision in Fiore v. White, 531 U.S.
225 (200 I), the L.B. decision should
be applied in this case.]
Stale v. Carter. 27 Fla. L. Weekly
SIOO4 (Fla. 12/5102)
.
In this case the Florida
Supreme Court resolved conflict
between district courts of appeal on
the issue of whether a probationer's
failure to file a single monthly report
justifY probation revocation.
The Court held that trial
courts must consider each violation
on a case-by-case basis for a
determination of whether, under the
facts and circumstances, a particular
violation is willful and substantial
and is supported by the greater
weight of the evidence. In other
words, the trial court must review the
evidence to determine whether the
defendant has made reasonable
efforts to comply with the tenns and
conditions of his or her probation.

ked v. State. 27 Fla. L. Weekly
SI045 (Fla. 12119/02)
This case answers a question
certified by the First District Court of
Appeal on whether an inaccurate jury
instruction is fundamental error. The
Court's decision was premised on the
question of an .inaccurate definition
of the disputed element of malice in
a charge ofaggravated child abuse.
The Court held that the
failure to use the correct definition is
fundamental error in cases in which
the essential element of malice was
disputed at trial.
The Court
. previously recognized a distinction

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

regarding fundamental error between
a disputed element of a crime and an
element of a crime about which there
is no dispute in the case. Thus, the
failure to instruct on an element of
the crime over which the record
reflects there was no dispute is not
fundamental error.
The Court further clarified
that fundamental error is not subject
to harmless error review. By its very
nature, fundamental error has to be
considered harmful. If the error was
not harmful, it would not meet the
Court's requirement of being
fundamental.
One final note on this. case.
The Court's decision provided for
The
LIMITED retroactivity.
decision will apply to all cases
pending direct review or not yet
fmal.

STATE APPEAL COURTS
Adams v. State, 27 Fla. L. Weekly
D2502 (Fia. 2d DCA 11120/02)
This case offers a terse
analysis of a defacto arrest,
something not uncommon in Florida,
but rarely discussed or published
with regard to tainted confessions.
As the Court correctly
recognized, there are numerous
factors. that a court must analyze to
determine whether a suspect
confession is &eeof the taint of an
illegal arrest. The most important
factors are: the temporal proximity of
the arrest and the confession, the
of
intervening
presence
circumstances, and, particularly, the
purpose and flagrancy of the official
misconduct. See: Brown v. O/inois,
422 U.S. 590, 603 (1975). The taint
of an illegal confession cannot be
purged solely by the act of reading a
defendant his Miranda rights.
In this case, the police
forcibly placed the handcuffed
defendant in a police car and told
him that he was NOT under arreSt.
The trial court correctly held that this
clearly illegal behavior constituted a
"defacto" arrest. Further, the Court

held it was error for the trial court to
rule that the events at ~e police
station acted to cleanse the
defendant's statements of any
The
constitutional violations.
defendant's encounter with the police
influenced his belief that he was not
free to leave the police station. See:
Taylor v. Alabama, 457 U.S. 687
(1982). Reversed for new trial.
Moore v. Nelson, 27 Fla. L. Weekly
D2518 (Fla. 41h DCA 11120/02)
The Fourth District Court of
Appeal
clarified
an
existing
condition that many prisoners may
not be aware of. The Court held that
it is error to impose condition of
supervision allowing defendant who
was convicted of sexual activity with
child to reside in foreign state
without stipulating that the condition
was contingent upon the approval of
the receiving state interstate compact
authority.
Mitchell v. State, 27 Fla. L. Weekly
02543 (Fla. SIh DCA 11122102)
The Fifth DCA held dual
convictions for attempted second
degree murder and attempted felony
murder, pursuant to section 782.051,
Fla. Stat. (200 I), for a single act,
constitutes a double jeopardy
violation, but certified the question to
the Florida Supreme Court for
review.
Perez v. Stale, 27 Fla. L. Weekly
D2556 (Fla. 41h DCA 11127/02)
The Fourth District Court of
Appea~ in an en bane pane~ has
receded from its prior holding .in
Wilcher v. Siale, 805 So.2d 74 (Fla.
4th DCA 2002), which held that
dismissal of a motion for post
conviction relief was proper when a
direct appeal was pending.
The en banc court properly
recognized that nothing in the
criminal rules requires a dismissal
under such circumstances. Instead,
the better procedure is for the trial
court to stay (or hold in abeyance)
the post-eonviction relief motion

----------------15------------

_

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

rather than dismiss for lack of
jurisdiction.

Gund/ah v. Moore, 27 Fla. L.
Weekly D2592 (Fla. 4th DCA
1214/02)
Florida prisoner, Charles
Gundlah, sought appellate review in
the DCA following the circuit court's
denial of his petition for writ of
mandamus as untimely. Gundlah
alleged that because he was
transferred between correctional
institutions, his copy of the DOC's
rmal answer on his administrative
remedies reached him only days
before the (30) day deadline for
seeking judicial review of the DOC
response.
The Fourth DCA found no
error in the circuit court's ruling on
timeliness. However~ where a stale
action deprives a party of the ability
to file a timely notice of appeal, the
appellate court; although deprived of
jurisdiction over the appeal, will
provide the thus-rejected appellant
with an alternative avenue of review.
The appropriate remedy has
been to dismiss the untimely appeal .
without prejudice, allowing the
appellant to pursue relief in the lower
tnbunal by motion seeking to set
aside the original order and
requesting that a. new appealable
order be entered. See: Department of
Corrections v. Saulter, 742 So.2d
368 (Fla. I~ DCA (999). If the
lower tribunal acts favorably upon
such application, the appellant may
timely appeal the nHmtered order
and thereby challenge the merits of
the original adverse agency action.
See: Etienne v. Simco Recycling
Corp., 721 So.2d 399 (Fla. 3d DCA
1998). If the lower tribunal refuses
to vacate the order, then the appellant
may appeal the refusal to re-enter the
order. Id.
Moore v. DOC. 27 Fla. L. Weekly
D2586 (Fla. 41h DCA 12/4/02)
. Cynthia Moore appealed the
dismissal of her complaint for
negligence and false arrest against

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

the DOC. While Moore was on
probation, a DOC officer filed an
affidavit alleging that Moore had
failed to pay her probation fees. The
trial court issued a warrant for
probation violation. Subsequently,
Moore's probation was terminated,
but Moore's probation officer did not
revoke the outstanding warrant.
Moore was ultimately arrested on the
warrant.
The heart of Moore's
complaint is that the DOC had a duty
to revoke the outstanding warrant for
violation of probation once it
received notice that her probation
had been terminated.
The Fourth DCA explained
that for Moore to have an actionable
negligence
claim
against
a
government entity, there must be a
common law or statutory duty
regarding the alleged negligent
conduct, citing Hinc/c/ey v. Palm
Beach County Bd of Comm rs, 801
So.2d 193, 194-95 (Fta. 4th DCA
200 I). Moore alleged that the DOC
had· a common law duty not to
subject her to a false arrest.
To analyze government tort
liability, the Florida Supreme Court
divided government functions· into
four categories:
(1) legislative,
permitting, licensing, and executive
officer functions; (2) enforcement of
laws and the protection of the public
safety; (3) capital improvements and
property control operations; and (4)
providing professional, educational,
and general services for the health
and welfare of the citizens. See:
Trianon Park Condo. Ass 'n v. City of
Hialeah, 468 So.2d 912, 919 (Fla.
1985). The supreme court held that
there is no duty of care and no
corresponding tort liability for
discretionary
functions
within
categories (I) and (2).
The Court
held
that
probation supervision is a category
(2) function involving enforcement
of laws and protection of public
safety. Probation supervision, the
Court reasoned, is a discretionary
duty involving the interpretation of

existing probation statutes and
supervision of probationers to protect
the public. ,It does not give rise to a
common law duty of care to
individual probationers.
In addressing Moore's false
arrest claim, the Court held that for
an entity to be liable for false
imprisonment, a· person must
personally and actively participate,
directly or indirectly by procurement,
in the unlawful restraint of another
person against their will. Merely
information to the
providing
authorities that a violation of law
occurred is not sufficient to support
an action for false arrest. See: Harris
v. Kearney, 786 So.2d 1222 (Fla. 4th
DCA 2001).
[Note: Judge Farmer delivered a '
well-reasoned and logical dissent
that's critical of the majori,ty opinion.
Judge Farmer stated that the state of
Florida has no proper interest in
saf~ing

I~

enforcem~

officers from such negligence as
demonstrated by Moore. Farmer.said
that when officers come to know that
an outstanding arrest warrant is no
longer legally sustainable, then' the
officer should have no proper
disCretion or law enforcement zeal to
maintain such invalid warrants. In
closing, Judge Farmer pragmatically
stated that it may seem a small thing
that a fonner probationer is arrested,
even if her or she loses their job as a
result of such negligence. But the
law in its perceived majesty either
protects the legitimate liberty
interests of all its citizens, or its
claim to liberty for all is itself false.]

Hersey v. State, ·27 Fla. L. Weekly
D2607 (Fla. Sth DCA 12/6/02)
The Fifth District Court of
Appeal has certified the issue of the
constitutionality of the curative effect
of Chapter 02-210, Laws of Florida
as it relates to Chapter 99-188, the
. Three Strikes enhancement. The
DCA certified the issue to the
supreme court as one of exceptional
importance.

----------------16-------~--------

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

Espindola v. State, 28 Fla. L. Weekly
D222 (Fla. 3d DCA ]/15/03)
The Third District Court, of
Appeal recently ruled Florida's
Sexual Predator Act unconstitutional.
Section 775.21, Fla. Stat., contains
the FSPA and under the Act. the sole
detennination to be made by the trial
court before designating a person a
"sexual predator" is whether that
person had the prerequisite criminal
conviction. The . DCA recognized
that the statute provides no
proCedural due process, and therefore
is unconstitutional.
Joseph v. Henderson, 28 Fla. L.
Weekly 0230 (Fla. 2d DCA 1/15/03)
Florida
Prisoner
Shane
Joseph petitioned the Second DCA
for a writ of certiorari to review a
trial court order denying his
. challenge to a booking fee imposed
by the county jail during his
resentencing hearing.
The DCA held that the
Sheriff's imposition of a booking fee
against Joseph who had returned to
the county jail from state prison for
new sentencing hearing constituted a
violation of equal protection and
substantiv.e due process.
This case provides a concise
statement as to detennine whether a
stabite violates substantive due
process as well as a rational basis test
as to equal protection claims. .
DuBose v. State, 28 Fla. L. Weekly
D239 (Fla. 2d DCA ]/17/03)
Florida prisoner Dwight
DuBose appealed his judgment and
sentences upon conviction of various
crimes. DuBose argued that the trial
court erred in running a 5 year
sentence under the Prison Releasee
Reoffender Act consecutive to his
life senteOce. The DCA agreed and
cited their decision' in Hall v. State,
821 So.2d 1154 (Fla. 2d DCA 2002),
where the defendant was ordered to
serve a habitual violent felony
offender sentence of thirty years

Perspecbves - - - - - - - -

consecutively to a nonhabitual life
sentence.
The Court in Hall stated that
the defendant was entitled to serve
his habitual offender sentence first in
order to preserve Hall's entitlement.
'if any, to control release. In the
instant case, the DCA applied this
same reasoning to PRR sentences.
As with the defendant in Hall. who
was given a habitual offender
sentence, a defendant who .is
sentenced pursuant to the PRR
statute is severely restricted in his
opportunity to earn gain time or
otherwise serve less than the entire
sentence. Thus, in order to preserve
entitlement to any possible early
release that may apply to the nonPRR sentence, DuBose muSt be
allowed to serve his PRR sentence
flJ'St.. .

DNA REMINDER
The Florida Legislature has provided
a limited remedy for convicted
persons to seek to exonerate
themselves by resort to DNA
evidence, section 925.1 I, Florida
Statutes.
The legislative remedy is
limited in time: a two year window
from the date this statute was enacted
on October 1, 2001, for persons
convicted prior to the date of the
statute. See Section 925.11 (I)(b) 1.
A person seeking this remedy must
file a timely petition with the
required allegations and information:
Florida Statutes 925. 11 and Florida
Rule of Criminal Procedure 3.853.
Compliance is essential, since at this
point. arguments based on due
process an~ fundamental fairness
have not succeeded in this state.
It is also crucial that the
movant must stickly follow the
substantive requirements of Florida
Rule of Criminal Procedure 3.853. If
this rule is not strictly complied with,
the motion will be denied.
Specifically, a Rule 3.853 motion
must be under oath and must include
the following:

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

_

(1) a statement of the facts
relied on, including a
of
the
description
, physical
evidence
containing DNA to be
tested, and, if known, the
present or 'last known
location of the evidence,
and
how
it
was
originally obtained;
(2) a statement that the
evidence
was
not
previously tested for
DNA, or a statement that
the results of previous
DNA
testing
were
inconclusive and that
subsequent
scientific
developments in DNA
testing techniques likely
would
produce
a
definitive result;
(3) a statement that the
movant is innocent, imd
a statement how the
DNA testing requested
will
exonerate
the
movant of the crime for
which he is sentenced, or
a statement how the
DNA
testing
will
mitigate the sentence.
(4) a
statement
that
identification of the
movant is a genuinely
disputed issue, ~d why .
it is an issue, or an
explanation of how the
DNA evidence would
,either exonerate the
defendant or mitigate the
sentence; .
(5) a stale!Dent of any other
facts relevant to the
.motion; and
(6) a certificate that a copy
of the motion has been
served
on
the
prosecuting authority. •

_

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

MEDICAL
SERVICES MAY
GO PRIVATE
The Florida prison rumor mill is
never short of scoops and recently
the buzz has been that medical
services wi)) go private. This rumor
has a little more credibility because
medical staff at at least one
institution has been vocal about the
threat of losing their state jobs and
benefits.
If medical services do go
private the frontrunner for the
contract will undoubtedly be
Correctional
Medical
Services
(CMS), the nation's largest private
correctional health-care corporation.
It is estimated that CM~ provides
health services to more than 268,000
prisoners at 34 I facilities in 30.
states.
A closer review of the move
by corrections to privatize health
care for prisoners reveals more
privatization than treatment, and
CMS appears to be the worst
offender of corrections .privatized
health car providers.
News reports reveal that
many episodes of neglect, involving
many cases .in which prisoners have
. died.
In an investigative report
published by the St. Louis PostDispatch in 1998 reporters William
Allen and Kim Bell recounted the
deaths of Jacqueline Reich who died
after health care providers in Nevada
failed to treat her diabetes; Lorenzo
Ingram Sr. who was one of four
Alabama prisoners to die after
technicians put the wrong chemical
in their kidney dialysis machine; and
Henry Simmons who died after a
heart attack in a Virginia prison
when a doctor's order for a test was
ignored. In each of these cases CMS
was the health care provider and the
company settled lawsuits with
agreements to keep these accounts
secret.
Like most corporations,

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

corrections contractors are in the
business to earn money-not lose it.
CMS's overzealous cost-cutting
tactics for the sake of profit has
amounted to death sentences for
many prisoners. One CMS employee
epitomized the attitude of CMS's
cost-saving strategieS: "We save
money because we skip the
ambulance and bring them right to
the morgue," the reported comments
of Diane Johnson, one of CMS's
employees implicated in the death of
a Florida county jail prisoner.
The Virginia Department of
Corrections has not renewed its
contract with CMS and assessed
$900,000 in penalties against CMS
for
noncompliance, said Bill
Baskervill of the Associated Press.
Virginia's state auditor of public
accounts reported that penalties were
assessed against CMS for failing to
triage in a timely fashion, not
assessing medical conditions within
48 hours and not providing timeiy
referral visits.
It is likely that Florida wi))
follow Michigan in contracting with
CMS for privatized health care.
Michigan's contract with CMS was
the product of a closed bid that cost
the state 250 million over a five year
period. Estimates> are not in as to
what it will cost the state of Florida,
but' it will certainly. eclipse
Michigan's contract.
While Bill Martin, Director
of Michigan's Department of
Correctional Services, claims to be
comfortable with the choice of CMS,
the quality of health care has
declined in Michigan prisons. One
noted incident shocks the conscience
of a civilized society. An emergency
referral was written for a prisoner in
.July 2000. CMS didn't approve the
referral until September 2000. Later,
a retinal specialist at the Kresge Eye
Institute in Detroit verbally criticized
and wrote a report that the prisoner
was 'going blind because CMS won't
approve the orders to conduct
various ~ests, or bring the prisoner to
his appointments in a timely fashion.

Nothing was done to save the
prisoner's sight, and·CMS employees
destroyed all the records related to
the prisoner's treatment and the
Kresge Eye Institute visit on Jan. 31,
2001.
Critics of the private
companies say the industry's
astounding growth and drive for
profit raises cautionary flags.
Michael Vaugh. a professor of
criminology at Georgia State
University
in
Atlanta,
said,
'~palling things are going on in
some of these facilities in the name
of efficiency, saving money and
managed care." He also added, "I've
seen enough smoke to know the fires
are burning."
As in most cases, the move
to privatize is yet another instance of
an over-zealous industrY that takes
advantage of the public's ill-will
towards prisoners to provide Poor.
• health care, poor food services, etc.,
all in the name of profit.
[Sources: St. Louis Post-Dispatch,
9/28/02;
Judicial
Process
Comntission, January 2003] •

of all kinds
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Only

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

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

Sexually Explicit
Publication Ban Upheld
In 1998 Florida prisoner Richard
Davidson, Jr., filed a 42 U.S.C.s.
1983 civil 'rights action in the U.S:
District Court for Southern Florida
challenging a ban imposed by the
Florida Department of Corrections
(FDOC) on prisoners receiving
sexually-explicit or adult type
publications through the mail.
Within two months of the lawsuit
being field the complaint was
amended to add Komar Company, a
Maryland -based company that sells
discount magazine subscriptions, and
prisoners Thomas Chick, Louis
Gaskins, and Ted Herring as
petitioners against the FDOC.
Komar Company provided attorneys
to represent the company and· the
prisoners, In 2000 the district court
judge denied a motion to dismiss the
case from the FDOC and it appeared
that the case would be going to trial
or would be settled by mediation.
By 200 I the case appeared to
be going well for prisoners and
Komar Co.
A mediator was
appointed to try to reach a settlement
in the case; Richard Davidson and
Thomas Chick dropped out of the
case as plaintiffs' and prisoners Billy
Bostick and Orestes Cruz were added
as plaintiffs, and the plaintiffs filed
for summary judgment.
In Nov. of 200 I the mediator
reported to the court that no
settlement could be reached and the
court scheduled a hearing on
plaintiffs summary judgment motion
for Jan. 10, 2002, and if not granted,
scheduled the jury trial to begin Jan.
28,2002.
Plaintiff's
motion
for
summary judgment was denied and
the trial rescheduled for June 3,
2002, and the FDOC filed its own
motion for summary judgment and
plaintiffs renewed their motion for
summary judgment. On Aug. 30,
2002, Judge Donald Graham denied
plaintiff's renewed motion for

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

summary judgment and granted
summary judgment to the FDOC.
On Sept. 30, 2002, the judge entered
final judgment for the FDOC.
The plaintiffs filed a notice
of appeal but then voluntarily
dismissed the appeal on Nov. 13,
2002.
Subsequently, on Feb. 6,
2003, the district court awarded the
FDOC $2,114.86 in costs and the
case that so many Florida prisoners .
had been counting on to uphold their
First Amendment rights to be able to
receive publications like Playboy or
Penthouse
ended
in
defeat.
Davidson. et at. V. Dept. of
Co"ections, et aI., Case No. 98-CV14294 (S.D. Fla.).
'[Note: Since the ban on adult
publications went into effect in
Florida's prisons there has been an
increase in the number of prisoneron-prisoner sexUal assaults and a
dramatic increase in the· number of
male prisoners being disciplined for
committing obscene acts towards
female prison guards involving
stalking them and masturbating while
looking at them.
Although such is a crime, the
FDOC encourages such behavior by
imposing only relatively minor
discipline for such ·perversity. It is
expected many of those offenders
will 'carry their sexual criminal
behavior, that they learned in prison,
back to the communities when
released.
This is apparently
preferable to the FDOC than having
adult prisoners relieving their sexual
urges with a Playboy magazine - BP
editor] •

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

SPREAD OF
DISEASES FROM

PRISON RAPE
COMPELS
CONGRESSIONAL

ACTION
The spread of deadly
diseases from prison rape 'has
become such a common occurrence
in many state and federal prisons that
Congress is taking a closer look at
the issue.
According to Lara
Stemple, executive director of the
nationwide
organization
Stop
PrisOner Rape, one in five men have
been sexually assaulted and one in
ten have been raped while in prison.
In some prisons, up to 27 percent of
women are sexually abused. This
abuse, according to Stemple,' is not
limited
to
incidents
between
prisoners, but is also perpetuated by
prison guards, as evidenced by
frequent reports of women prisoners
becoming
pregnant
while
imprisoned.
Finally, Congress is paying
attention. The Rape Reduction Act,
which has been introduced in both
houses of Congress, would establish
a national commission to set up
standards for reducing and eliminating
prison rape.
Congress
is
almost
compelled to act because an
estimated 95 percent of prisoners
will eventually be released back into
the community. Reports show that
prison rape is helping to cause the
spread of AIDS, herpes, and other
sexually transmitted diseases.
Stop Prisoner Rape can be contacted
at:
Stop Prisoner Rape
6303 Wilshire Blvd. Ste. 205
Los Angeles. CA 90048
323-653-7867
www.spr.org •

_

FLORIDA PRISON LEGAL

ANOMALY IN LAW
ALLOWED DISPARATE
LIFE SENTENCES
by Bob Posey
Florida eliminated parole on Oct. 1, 1983, with
the exception of parole still being available for offenders
convicted of committing first degree murder, a capital
felony, and who received a life sentence, instead of a
death sentence, but who could only become eligible for
parole after serving a mandatory 25-year term on the life
sentence. Recently, I examined in two articles why parole
was "allegedly" abolished as part of the criminal
sentencing structure in Florida in 1983 - essentially to
eliminate indeterminate, disparate and often, biased
sentencing - and 'discussed how the Florida Parole
Commission, which was intended to have been phased out
in the 1980's, has managed to remain ·in existence by
balancing the number released with the number who have
their parole revoked and return to prison largely for
technical violations. (See: FPLP, Volume 8, Issues 4 and
5, "The Florida Parole Game;' Parts 1 and 2). However,
disparate sentences were not eliminated in 1983, in fact,
for one category of prisoners fair sentencing was actually
turned upside down in a perversion of justice that was
allowed to exist for over 10 years following the paroleelimination fiasco of 1983.
Prior to Oct. 1, 1983, there existed·in Florida laws
'Yhich classified serious crimes as either a capital felony,
bfe felony, felony of the first degree, felony of the second
degree, or felony of the third degree. The only capital
felony recognize by Florida law, in which either the death
sentence or life sentence with a mini~um 'mandatory of
25-years before being eligible for parole could be
imposed, was for fust degree murder. On the other hand,
under the pre-1983 parole system, persons convicted of
what were termed "life felonies," for example: second
degree murder, kidnapping, certain sexual battery crimes,
armed robbery, carjacking with a deadly weapon, armed
burglary, or trafficking in COcaine, could receive any term
ofyears up to a sentence of "life" in prison.
However. such life sentences did not carry a 25years minimum mandatory like capital felonies did,
although if a frrearm was used a 3-year minimum
mandatory term could be imposed on the term of years up
to lite or life sentence. Regardless, persons sentenced for
"life felonies" were parole-eligible much sooner than
those sentenced for a capital felony and who avoided a
death sentence by receiving.a life sentence with a 25-year
minimum mandatory that had to be done before they could
even become parole-eligible. Those persons convicted of
a life felony essentially became parole-eligible as soon as
they were sentenced and could be paroled at any time by
the Parole Commission.

Perspectives - - - - - - - - - - - - - -__

The anomaly was created when parole was
eliminated for all crimes committed after Oct. 1, 1983,
except for capital felonies receiving a life sentence with a
25-year mandatory before parole eligibility. The courts
continued to give out life sentences for offenses classified
as "life felonies" althou8h parole was no longer available
on such sentences. The result was that until May 24,
1994, when the State Legislature enacted a law
eliminating parole-eligible life sentences for capital
felonies, and making the alternative to death for a capital
felony a life sentence without parole, those persons
sentenced for "life felonies" to life between Oct. 1, 1983
and May 24, 1994, were actually receiving a harsher
,sentence than those convicted of first degree murder.
Those who received the life sentences for life felonies, e.g.
second degree murder, will never have an opportunity to
be released on parole while those who received life
sentences for capital murder up until 1994 will be eligible
for parole after 25 years. .
On Apr. 24, 2000, there were 13,275 prisoners in
Florida prisons who had offense dates between 10/l/83
and 5/24/94 for life felony offenses. The majority,
however, had received a term of years instead of an actual
life sentence. But, of the 13,275, 1,213 had received a life
sentence, which, in effect, since they will never be eligible
for parole, is essentially a natural life sentence meaning
they will never be released from prison. The Florida
Legislature has failed to take any action to correct that
perversion ofjustice.

20-

•
CONTACTS
The Aonda Corrections Commission is a>mposed of asht
citizens selected by die gll\'CI1IOt to 0 _ die operatiOll of

the Aorida Oep3rtmenl of Corrections. The Commission
makes recommendalions 10 the governor IlIld stale legislAture
concerning problem areas within the pri5Cln system. The
Commissioo welcomes input fi'cm the public identifying
problem areas. The Commission's aclivilies C3lI be fuund on
ilS websile. The Commission is independent from the FDOC.

Florida Correclions Commission
2601 Blair Slone Road
Tallahassee. FL 32399·2500
Phil (850) 413·9330
Email: fcorcom@mail.dc.slale.jl,1LS
Website: hup:/lwwwfcc.slale.jl.usI
Additional:
Inmale Bank Informal/on
Toll Free: (850) 488-6866
Email Addresses:
Gov. Jeb Bush - jeb.bus/r@nl}:flortda.com

-:.....

_

FLORIDA PRISON LEGAL

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

Appeals
Belated Appeals
Rule 3.800 & 3.850
Habeas Corpus
Executive Clemency

The following charJ shows the offenses and
number of people' who received either a Iif~without­
parole sentence or a sentence to a number of years for a
"life felonY"',between 10/1/83 and 5/24/94.

Denpted Population as of April 24, 2000
Offenses with Sentence of Life/Other
Offense
Life Other
2nd degree murder, dangerous act
134 1,565
2nd degree mUrder, commission of felony
12
190
Kidnapping, commission of felony
596
135
Kidnapping, hold ransom
6
18
' 16
Kidnapping minor, exploitation
3
,
Kidnapping, assault or terrorize
14
73
Sexual battery by juvenilelvictim under twelve
10
70
145
467
Sexual battery, threaten with deadly weapon
Robbery with firearm or deadly weapon
444 5,343
Carjacking with deathly weapon'
2
19
Attempted murder law enforcement officer
0
1
Burglary, assault any person
136 1,150
Burglary, armed with weapon
158 1,915
14
635
Trafficking In cocaine
1
0
Continuing criminal en~erprise
Trafficking, heroin, etc 150-300k
0
3
Totals 1,213 12,062

LawOfflce
of

JonL. Martin
3601 S.E. Ocean Blvd.
Suite 103 .
Stuart, FL 34996

Phone (772) 419-0057
Fax (772) 781-4548

Post Conviction
.Advocates

The following chart shows by calendar year the
denoted population by the year of offense for those who
received a life sentence as opposed to
other than life
sentence for a "life felony" between 1983 and 1994.

an

Number of Life/Other Sentence Population'
by Year of Offense

"The hiring ofa /mvyer is an Importanl deculon
that should nol be based 101ely upon
adverl/semenll. Before)'Ou decide. ask lIS 10 send
)'OU free wrlth!n /J!formtllion about our
quallflcallons and experience. ..

.~..~.,.

2,000~====

1,500

....------,

1,000

/If Life

500
0~.L..J!!4~~

ij
[~

pOther

I

I.

1992 1993 1994
104 146 169 170 144 141
54
1,131,1,41011,588 11,442 11,478 .1,556, 605

-----------:----'----=====--------------21------------__
I

FLORIDA PRISON LEGAL. Perspectives

--------------_

Around the System

•

As ~eported n the last issue of FPLP James V. Crosby,
Jr., IS now the Secretary of the Florida Department of
Corrections (FDOC). Crosby, who was promoted from
warden of F.S.P. to Director of the FDOC's Region I
after death row prisoner Frank Valdes was brutally
stomped to death by a gang of prison guards in 1999,
has selected C. George Denman, who has been serving
as Director of Region II, to be the Deputy Secretary of
the FDOC. Denman replaces Richard Dugger as
Deputy.Secretary. Unverified reports claim that Dugger
has resIgned from the FDPC, but will still feed at the
taxpayers' trough as a paid consultant to the
department.
[Source: FDOC records]

•

As of Fe. 3', 2003, there were 75,327 state prisoners
incarcerated in the FDOC. That number is up almost
2,000 people since that same time last year. Currently
there are 79,022 prison bed spaces in Florida. The
Criminal Justice Estimating Conference, which
forecasts Florida's prison population, admissions and
releases, and the supervised population, estimated in
Sept. '02, that by June 2005 there will e over 80 000
people in Florida's prisons. The CJEC estimates there
will be almost 90.000,prisoners by June 2008. [Source:
Senate Committee on Appropriations, FDOC records]

•

In early Apr. 2003 a new 4-we'ek cycle master menu'
was distributed to FDOC prison kitchens and
instit,utions. Aramark Corp., which private company
proVIdes food services in most of the prisons, and
Trinity Food Services, which provides food services at
a few South Florida prisons, will be required to adhere
to the new menu that is applicable at all prisons. The
new menu will provide a slight decrease in variety of
meals seryed from the previous 6-week cycle menu and
appears to be designed to decrease the cost to the
private companies for meals. Portion servings will
remain close to the old menu, but more meatless meals
will be selved and the cold cuts and peanut butter
sandwich lunches forced on the FDOC and prisoners
by former State Senator Charlie Crist in 1995 (now
Attorney General - which is still unbelievable-ed) will
largely be abandoned for quick hot lunches including
tacos. burritos, etc. Most prisoners will welcome the
change as the old menu had been in effect for several
years. [Source: FDOC master menu, Apr. 2003] •

Front Line Activisme
On April 5, 2003, Florida state prisoner and FPLP editor Bob
Posey, Washington state prisoner and Prison Legal News editor
Paul Wright. and Louisiana state prisoner and formed editor of
the Ango/ite, Walter Rideau, participated in a ground-breaking
workshop on prison journalism held as part of the Critical
Resistance - South Conference in NewOrleans. Bob Posey and

P~ul Wright appeared through Conference 'calls, while Walter
RIdeau was represented by Ted Quant, director of the Twomey
Center for Peace through Justice. The workshop was facilitated
by Lolis Eric Elie, Times Picayune columnist and was attended
by other free journalists.
The workshop explored the purposes of prison journalism. .
the. c~allenges and advantages of prison journalism, and
strategIes for using. prison journalism to better educate the
public and fight prison expansion in the U. S. The Critical
Resist,anc~
Confer:e~ce.. was organized by community
organIzatIons and mdlVldualS from 12 Southern states
(A.la~~a,. Arkansas, Flori~a, Georgia, Kentucky, Louisiana.
MISSISSIPPi, North Carohna, South Carolina, Tennessee
Virginia, and West Virginia) with support from Criticai
Resistan~, a national grassroots group that is fighting to end the
U.S.'s rehance on prisons, police and surveillance as an answer
to social political, and economic problems.•

Rally Went Well
The March 10, 2003, rally in the Capitol'S rotunda went well
this year. Approximately, 40 people attended, mostly family
members of Florida prisoners who wanted to have their voices
heard by our state lawmakers.
.The rally was successful in providing a forum for those
vOI~es. Many people stepped up to the podium to talk about how
havmg a loved one incarcerated in Florida has impacted their
lives..FPLAO pirector Teresa Burns-Posey spoke to those
attending about the tremendous financial burden being placed
on prisoners' families by the Department of Corrections with its
exorbitant prison collect telephone rate scheme. Ms. BumsPosey and rally attendees then visited legislators' offices and
other Capitol building offices to talk about and distribute
literature about the telephone rate gouging and the FAIR
Campaign.
Several people, including prisoners, sent in donations to
FPLAO to help finance the rally. That help was greatly
appreciated and much needed, a big thanks foes out to those
folks.
Flo,rida Institutional Legal Services in Gainesville also
d~serves thanks. They helped with renting tables for the many
dIsplays and a' P.A. system. And thanks go out to all FPLAO
members who make activities like the rotunda rally and other
projects possible through their, Yo~, continued support. Thank
You!.

Attention Parole-Eligible Prisoners
Over 500 letters were received from parole-eligible prisoners
in response to FPLAO's recent notice for those to write who are
interested in FPLAO starting a project to do something about
the p~le problem. FPLAO staff are still in the process of
gathermg all the necessary information on such a project.
Thanks to all those who wrote for their patience. FPLAO should
be contacting all those who wrote shortly, by letter, to let you
know more about the project.•

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

_

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

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

Florida Prisoners' L~gai Aid Organization Inc.

B~COM~ A MEMBER

YES 1'1 wish to bec9m~a member ofFlorida
Prisoners' Legal Aid O~ganization, Inc.

3. Your Name and Address (PLEASE PRINT)

'..1. Please Check ./ One:
4- 0 "

•

_ _ _ _ _ _ _ _ _--'-_ _D.C#
Name

CJ Membership Renewal
CJ New ~embership

_

AgencylLibrarylInstitution IOrgl

. 2. Select ./ CategoQr
........

....

CJ $15 Family/AdvocatelIndividual

-

CJ $9 Prisoner

Address
City

State

Zip

.CJ $30 AttomeyslProfessionals
CJ $60 Gov't J\genciesILibrarieslOrgsJetc.

Email
Address and lor Phone Number
.
.

. qr Please make aU checks or money orders payable to: Florida Prisoners' Legal Aid Organization. Inc. Please complete the above ronn and send it

with the indicated membership dues or subscription amount to: Florida Prisoners' Legal Aid Organization Inc., P.O. Box 660-387. Chuluota, FL
32766. 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 postage stamps arc acceptable from prisoners for membership dues. Memberships run one year.

FRANK E. SHEFFIELD, P.A.
906 THOMASVILLE ROAD
P.O. BOX 10645
TALLAHASSEE, FLORIDA 32302
We provide Representation in all State and Federal
Courts, Trial and Appellate Level; Post conviction Relief.
Clemency and Parole 'Reviews
Frank E. Sheffield, Esquire
M. Lilja Dandelake, Esquire
3~ Years Criminal Defense Experience

CALL: (850) 577-6555
The hiring of a lawyer ill an imporlllnt dedslon tllnt should not bel based 80laly on advertlaemenlS,
Sefore you decide. oak us to lIllIld you free written lnfonnallon about our qUlllJllcallons

23 - . . . . - - , . . . - . - - - - - - - - - - - - -

-'I#~t<thr
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•

II· ''',

If .'10. please complete the below inromlUlion :lIuJ lIl11il it to FJlLl' so
thai the mailinJ.: list ClllI he 1I1I1I:llell:

NEW ADDRESS (PLEASE PRINT CLEARLY)

Nanlc
In"-

Addrwl
Ci_l~'

Zip

State
@l'o1aillo; FPLP. P.O. 801660·387, Chuluula, FLJ2766

I

Volume 9. Issue 2 Mar/Aor 2003

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