FLORIDA PRISON LEGAL

ers ectives
IS~N#

VOLUME 13 ISSUE 5/

Study Says Habeas Review
Slower After 1996 "Fast
Track" Law

A

ccording to a new study published September 3,·
2007, in the National Law Journal, federal court
review of state prisoners' challenges to their convictions .
and sentences in both non-capital and capital, but
especially in capital cases are taking longer to complete,
despite a ·1996 federal law designed to speed up federal"
court review of state .prisoners' habeas corpus actions. The
study was conducted by Vanderbilt University School of
Law and the National Center for State Courts.
The two-year study exalnined almost 2,400 non-capital
cases, randomly selected from the more than 36,000
federal habeas corpus cases filed by state prisoners in
2003 and 2004. The study also considered' more than 360
death penalty cases from 13 federal districts filed between
2000 and 2002.
The study's findings do not bode well. for federal courts
that may find themselves squeezed by tough new
processing deadlines in states that are certified by the U.S.
Department of Justice as qualified for fast-track federal
habeaS review of capital cases under a 2006 federal law.
It further illuminates that nothing in Congress's perverse
laws to limit and twist constitutional habeas corpus rights
bodes well for justice or the principles upon which our"
country was founded.

, ON
THE
INSIDE

1091-8094

. SEPTI

Taking Longer:
The study found that the first professed goal of the
1996 Antiterrorism and Effective Death Penalty Act '
(AEDPA), to speed up the processing of fedeJ;.al court
review of state prisoners' habeas corpus actions, has not
been realized. . . .
The study found that capital cases that had been .
completed in federal habeas corpus proceedings are taking
twice as long as they did before the AEDPA was passed,
being completed on average in 29 rather than 15 months..
Not one of the 13 districts completed its capital cases in
less than 500 days. Yet, the new processing deadline for
federa~ courts under the 2006 law is 450 days in states
certified by the Justice Department.
The average time from start to finish in non-capital
cases was found not to be as disparate, with the cases .
studied taking only 7.1 months to complete compared to
the average 6-.month pre-AEDPA time.
however, is
in. line with the true, second,-goal of the AEDPA-making
habeas corpus a largely meaningless exercise in futility.

This;

Second Goal Succeeding
The professed second goal of those who p.ushed for
passage of the AEDPA in 1996 was to promote the finality
of state court convictions and sentences by the imposition
of predicts and severe procedural and time limitations
(that are often insurmountable by the average defendant.'
without substantial resources). (See, e.g. article in the last
issue of FPLP, "The Great Unobtainable Writ: Indigent
Pro Se Litigation' After the Antiterrorism and Effective
Death Penalty Act of 1996," by Thomas C. O'Bryant.)

Federal Habeas: Exhausting State Remedies
,
Post Conviction Comer
In The News
·
Notable Cases
t
Compelling Trial Court to Rule
FYI: For Your Infonnation

3
8
10
13

.19
21

Florida Prison Legal Perspectives
FLORIDA PRISON LEGAL PERSPECTIVES
P.O. BOX 1511
CI-IRISTI'vIAS. FI.ORIDA 1270C)
Pllblishill~ Divisioll

of:

FLORIDA PRISONERS' LEGAL AID ORGANIZATION, INC.
1\ 501 (~) (3) NOIl-protil Or;;allizali'\I1

':'mail:
Wdlsite:

FPLAO DIRECTORS
T.:resa Burns-Po.~cy
Bob Pos.:y. eLA
David \V. Bauer. r:sq.
1..01'':11 D. Rhoton. Esq.

FPLP STAFF
Publish.:r
Editor

Ter.:sa Bums-f'os.:y
Boh Posey

Research

Sh.:rri Johosoll
Anthony Stuart

Florida I'risonl'rs' I.l'gal Aid ()rganizalion. 11Il'.. P.O. 110" 15.11.
Christmas, 1'1. J27ll'J, l'ubli.,;IIl's FI.ORIIM PRiSON I.EGAI.
PERSPECTIVES (1'1'1.1') up to six liml's a y';ar. 1'1'1.1' is a non-prolit
publication tilClIsing on Ihe Florida prison and niminal .ill.sticl'
systems. 1'1'1.1' provides a \,t:hick lilr nl'WS, illlilrtliation, and
rt:SI.lllll'l'S afkcting prisoJll'r,;. tht:ir 1;II11ilics, Iril'lI<b. IOVl'd olle~. and
Iht: gcnl'ral pub lit: of Florida. IkductioJl of niml' and Il'cidivism,
mailltl'ualKl' of 1:Il11ily tic,;, ci\·il rit:hls, imIHtl\'ill[! l'tlllllilion~ of
<:oJllillcmcnl. prtlnHltinl; skilkd <:oml acct:ss tilr .pri~oners, and
prol1loting aCl'lllllllahility "f prison ofli~ials aI',' all i';~IIt:.-; I'I'Ll' i~
· ·lk~igll\:d 10 addrl'ss, I'I'Ll"s lI<lIl-allllnll'y vtllunlct:r siaff cannot
, rl'.~polld ttl rl'ljllc,;ts li'r Iq:;d ;!d\'icl', Ihll' III lhc Vllhll1ll' of luailthat i,;
rel'ci\'ed allll vlliuntcl'r staff linlilatitlu~, all corTl"llIlll<kul'e that is
rl'cl'iwd Glnnol hl' rl'~pondt:J to. bllt all mail will rccl'i\'l' individual
allentilln. l't:rrl1i,ssitlu is grantt:d 10 rqlliut matl'lial apl'l'aring ill 1'1'1.1'
that dllCS lUll indil'all' it is copyrightt:d prtl\'ilkd Ihat 1'1'1.1' and any
illllicall'd allthol' arc idcntilied iu tht: rl'prinl and a t:opy Ill' the
l'uhlicllioll in which Ihl' Inalnial is puhlishl'd is provide'd to thl'
1'1'1.1' puhlishcr. This puhlication is nlll IIlcalll 10 bl' a suh~tilulC lilr
kgal or olher prok,s,sion;,1 advice. Thl' matnial iu FI'Ll' should not
hl' rl'li~d upon as allthoril;,li\'c and may Nol t:.olltain SlIflicil'nl
· informatioJl 10 dt:al with a kgal pmhkm. 1:1'1.1' is alJlonlalically Sl'nl
to all nh:mbt:r.-; tlf I'I'I.AO. Inc. a~ a ull'lIlhl'r,;hip henl'lit.
;\,1l'lnhcr.shi l' dul's ti'r I'''I..Ao. lill' .. tll'~ratl' y";lIly allll arl' Sill li'r
I'l'i~Ollt:rS, $ 15 li,r ElIl1ily mCl11h~rs alld tllh~r privatl' individllal;;, S:W
· tilr allornt:y~, an,l $(,ll li,r agl'ncil's, lihrari~s, and iu"itlllillllS,

2

. The study found that, particularly in non-capital cases
the second goal of the AEDPA appears to be succ~ding,
Of 2,384 non-capital cases examined, only seven (7)
petitioners won relief in federal courts, a rate of one in
every 341 cases filed, more than 3 times lower than the
rate of one in every 100 habeas corpus cases filed by state
prisoners before AEDPA.
"Prisoners' filings in district courts are staggering and
to see only seven get relief out of 2,384, well, you think
'Whoa, what is going on there?'" said Nancy J. King, oj
Vanderbilt Law School, who lead the study along witt
Fred Cheesum and Brian Ostrum of the National Center.
"Is it just so many frivolous filings or are mor~
meritorious claims being made and federal courts can't gel
to them because of AEDPA," King asked. "The stol)
behind the grant rate is still unclear, but it is remarkabl)
low for any set of cases. The odds are very, very low oj
getting any relief in non-capital cases."
Especially notable, King added, was the study's findin~
that one in every five of these cases was dismissec
because the prisoner missed the Act's filing deadline.
The odds of winning federal habeas relief are better ir
capital than in non-capital cases, even there, however,th~
grant rate appears to be lower after AEDPA than before
according to the study.
.
Of267 capital federal habeas cases filed in 2000, 2001
and 2002, and completed before December 2006, abou
one in eight were granted relief, or 12.4 percent (I:
percent of first-petition terminations), a grant rate 35 time!
higher than the rate in non-capital cases.
[Editor's Note: It is not the purpose or intent of FPLP ir
reporting such negative information as above t(
discourage any prisoner from seeking legal relief on an:
wrongfully imposed conviction or sentence, indeed, sucl
relief should be sought to the fullest. It is our purpose ani
intent to expose within our means how justice and faimes
are being eroded in our country, bit-by-bit, in the name 0
expediency as more-and-more are incarcerated. At som
point there will be an awakening by those who are denie
relief and there will be a reckoning.] -

FLORIDA C'LEMENCY SPECIALIST
FOR.ASSISTANCE INFORMATION:

www.nationalclemencyproject.com .

NATIONAL CLEMENCY PROJECT
8624 CAMP COLUMBUS ROAD .
HIXSON, TENNESSEE 37343
(423) 843-2235

Florida Prison Legal Penpectives

-Federal Habeas CorpusExhaustion of State Remedies
Under Title 28 U.S.C. Sec. 2244(b)-(c)
.. by Dana Meranda

D

egarding the exhaustion of State remedies by State
the AEDPA amended sec;tion 100(1),.tbe
exhaustion provisions ofthe Habeas Corpus Statutes.
Title 28 U.S.C. sections 1154(b)-(c) now provides
that:
~'-Prisoners,

(b)(l) application for a writ of Habeas Corpus on behalf
of a person in custody pursuant to the judgment of a State
Court shall not be granted unless it appears that(A) the applicant has exhausted the remedies available
in the courts ofthe State;
or
(B)(i) there is an absence of available State corrective
process; or
(ii) circumstances exist. that n:nder such process
ineffective to protect the rights of the applicant. (2) An
application for writ of Habeas Corpus may be denied on
the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the state.
(3) A State shall not be deemed to have wah'ed the
exhaustion requirement or be estopped from reliance upon
the requirement unless the State, through counsel,
expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law
of the State to raise, by any available procedure, the
question presented.

The general ruleS of exhaustion consist of a
number of requirements and exceptions (statutory and non
statutory) to exhaust a claim fur purposes of fi:dcraI
habeas corpus.
.

.

Rule 5(b) of the Rules governing sec. 2254 cases

provides the State with the burden of asserting nonexhaustion as a defense.
Following the rule of Granberry v. Greer. 107
S.Ct. 1671 (1987) the AEDPA requires any waiver by thC
State of the exhaustion defense must be expresS. Kelly v.
Sec'y. Dep',. of Corrections, 377 F.3d 1317 1351 (Illb
Cir.2004).
•
,
Federal Courts should assess the question of
waiver on a case by case basis, exercising discretion in
deciding whether the administration of justice would be
better served by reaching the merits of unexhausted claims
or requiring further .State .Court proceedings before
addressing the merits ofthe claim.
For policies in favor of reaching the merits or
otherwise requiring exhaustion, see Hertz and Leibman,

Federal Habeas Corpus Practice and Procedure, sec.
23.2a, notes 12-21 (Sib Ed. 2005).
.. Once the State pleads the non-exhaustion defense
in a propel- and timely fashion, or the Court raises the
issue of exhaustion (sua sponte), the burden shifts to the
petitioner to show exhaustion has been satisfied, or an
exception thereof.
If all of the claims in a petition are incapable of
justifying relief: the entire "application for a Writ of
Habeas Corpus may be denied on the merits.,
notwithstanding the failure of the applicant to exhaust the
remedies available in ~ courts of the State,with respect
to one ()r more of tIie claims,~ Peoples v. Campbell. 377
F.3d 1208, 1243 (1 lib Cir. 2004).'
.
Circumstances my cOunsel that a District Court
ra,ise (sua sponte) procedural bar to relief that the State
has waived, such as the exhaustion requirement. Wine! v.
England, 327 F.3d 1296, 1300 (II!" Cir. 2003), and Trent
v. Cain, 118 S.Ct. 478,480 (1997) (describing Grartberry
as establishing that appellate court may raise sua sponte
petitioner's failure to exhaust State remedies).
Generally, a petitioner satisfies the exhaustion
requirement if the claim is properly raised on direct appeal
or throughout on complete course of post conviction
proceedings.
In order to be exhausted, a federal claim must be
"fairly presented" in the State courts, McNair v. Campbell,
416 F:3d 1291, 1301-02 (11 1h Cir. 2005), giving the state
courts the "opportunity'" to pass upon and correct alleged
violations of federal (Constitutional) rights. Duncan v.
Henry, 115 S.Ct. 887, 888 (1995).
.To provide the state with the necessary
opportunity, the prisoner must "fairly present" his claim in
each appropriate State· court (including any discretionary
appeals that are an established part ofthe State's appellate
review process). O'Sullivan v. Boerckel, 119 S.Ct. 1728,
1732 (1999). See Hertz and Leibman, Federal Habeas
Corpus Practice and Procedure. sec. 23-3b notes 20-25
disc.u~sing the ~ects 0 'Sullivan may have in
additi~nal pl~gs such as discretionary appeals and
rehearing motions filed out of abundance of caution for
exhaustion and defiwlt purposes.
. Whil~ addressing the "fair presentation"
requuement m Baldwin v. Reese. 124 S.Ct. 1347, 1348
(2004), the Court provided some guidance and explained
that· a litigant who wishes to raise a federal issue can
easily indicate the federal law basis for his claim in state
court petition or. brief: fur example, by citing in
conjunction with the claim the federal source of law on

a

requirinS

case

which h& relies or a
deciding such a claim on federal
grounds, or by simply labeling the claim federal.
11Jo petitioner must present his claim to the State

courts such that· they are pennitted the opportunity to
apply controlling legal principles to the facts bearing upon
the constitutional claims. Picard v. Conner, 92 S.Ct. S09
513 (1971).
'
•
3

Florida Prison Legal Perspectives
It is difficult to ·prevail on an exception to the
exhaustion requirement because the basis for avoiding the
requirement may not necesSarily avoid a procedural
default.
Every claim in the federal habeas corpus petition
must be exhausted. A "mixed petition," i.e., one including
both exhausted and unexhausted claims, win generally not
be adjudicated by the federal courts and is subject to
dismissal without prejudice. Rhines v. Weber, 125 S.Ct.
1528. 1532-33 (2005), (endorsing the use of a "stay-andabeyance procedure").
The above is only a summary of requisites for the
exhaustion of State remedies. Therefore, it may be
necessary to extend research into specific area on a caseby-case basis. •

Advertise in FPLP
Reach new clients or customers through advertising in
Florida Prison Legal Perspectives. To obtain advertising and
rate information write or email
us at:
FPLP
Attn: Advertising
15232 E. Colonial Dr.
Orlando, FL 32826-5134

Or
fplp@aol.com

Florida Prison Legal Pe~pectives

Lawyers Challenge New Law In
Florida Supreme Court On Behalf
of Indigent Defendants

former attorney had multiple sclerosis and used a
wheelchair.•

u.s. ~upreme Court Grants
Certiorari Review Over Lethal
Injection Challenge'

~

n September 20, 2007, the Florida Association of
O
Criminal Defense Lawyers filed a.challenge with the
Florida Supreme Court to block a new law that would set
up a second-tier of public attorneys to represent insolvent
defendants in criminal cases. The new law also will
provide legal representation in child dependency cases.
In criminal cases, the second-tier attorney would only
be appointed if there is a conflict of interest and the public
defender's office cannot represent the client.
This new law has caused much debate which has lead
private attorneys to withdraw their names from pro bono
list because the new law places a cap on the compensation
attorneys may r e c e i v e . The Florida Legislature passed this law in an effort to
cut spending due to a current year revenue short rail of
$1.1 billion. However, attorneys argue that such law
denies the constitutional right defendants have under the
Sixth and Fourteenth Amendment of the U.S. Constitution
to effective assistance ofcounsel.
Further, such caps places attorneys in a position of not
wanting to represent such defendants because they would
not be able to effectively represent a client due to the
compensation cap as some cases would require much
more money than what the state can compensate an
attorney working on a case.•

Former Disabled Attorney
Granted Pardon

he u.s. Supreme Court agreed to hear a challenge
into the method of lethal injection during the month
of September, 2007. This challenge was filed by two
prisoners from Kentucky, Ralph Baze and Thomas Clyde
Bowling, Jr.
The prisoners argue that the procedure used in
Kentucky to execute prisoners amounts, to ~ruel and
unusual punishment in violation ofthe Eighth Amendment
to the U.S. Constitution.
This move by the U.S. Supreme Court was a surprise to
many. The last acceptance of this issue came in 1879,
when the Court found that Utah's use ofa firing squad was
constitutional. Then in 1972 the Court halted executions.
Since executions resumed in 1976, 927 prisoners have
been executed by lethal injection.
Similar challenges are pending ,before the Florida
Supreme Court and justices are debating whether to delay
executions in Florida until the U.S. Supreme Court
addresses the, Kentucky cases.
'
No prisoner has been executed in Florida since the
execution ofAngel Diaz last y~ which took 34 minutes.
One Florida prisoner has been scheduled to be
executed, Mark Schwab. However, a lawyer representing
Schwab said he believes the state should halt executions
until the U.S. Supreme Court makes a decision on the
Kentucky cases.

n September 20, 2007, the state clemency board
O
granted pardon to a former disabled attorney, Richard
Paey.48.

[Note: During November the Fla. Supreme Court held that
Florida's
lethal
injection
methods
are
not
unconstitutional.] •

Paey had been convicted for drug trafficking and was
serving a 2S-year sentence. He had completed almost four
years into the 2S-year sentence at the time of his release. '
-, A jury convicted Paey because they believed he had
forged so many prescriptions and purchased large amounts
of pain pills, leading them to believe he was selling them.
This was the sale evidence used to convict him at trial.
The Parole Commission had recommended that Paey
be denied pardon. However, the clemency board voted
unanimously to grant him pardon.
,
Paey's case made headlines nationwide, which drew
several advocacy groups to call for his release. (FPLP
previously reported on Paey's case.)
Advocacy groups argued that Paey purchased the drugs
for constatnt pain he suffered as a result of his disability
and that he never purchased such drugs to sell, them. The

T

FDOC Disciplines Eight Correctional
Officers Over Gay Wedding Ceremony
n October 24, 2007, FDOC announced that
O
disciplinary action had been taken against eight
correctional officers for allowing' female prisonerS to
perform, 'decorate, and participate in a wedding ceremony.
The incident took place at Lowell CI. in a close
management unit. Officials knew about the incident after
receiving information from a prisoner which resulted in an
internal investigation.
5

Florida Prison Leg..l Penpectives
Investigators reviewed a digital video and seized some
evidence from at least one prisoners cell. The
investigation conclud~d that around 5: 15 p.m. prisoners
were allowed to go to the day room. While there, they
used a bed sheet to clothe a table and a second sheet a
veil for one ofthe prisoners. Officials also claim that pink
paper used in Inmate Request Forms was tom to make
bows and paper curls on the table,' while paper towels
were used for other decorations. Moreover; prisoners also
used human hair and dental floss to make rings that the
two women exchanged, according to the investigation.
As a result of the investigation six officers were
suspended: Kimberly Brown, Shayla Davis, Tina Davis,
Jannerie Henry, Darian Rhem, and Laurie Vaughn'. Also,
Sgt. Yelonda Vereen was fired and Sgt. Jennifer Thomas
resigned. a

as

Blountstown Police Officer
Charged With Child Molestation

A

Blountstown police officer appeared in court
October 3, 2007, officially charged with tw~ counts
of unlawful sexual activity with a minor and one count of
battery.
According to court documents,' Charles Bender, 52,
who lived in Marianna but worked in Blountstown as a
police officer, ,forced ~ teenage girl to perform oral sex on
him and put his hand in another girl's bra.
,
• Bender's assaults allegedly. took place with teen girls
participating in a Police Explorer Program. He was
suppose to be mentoring the girls. AlI.the alleged incidents
happened in a Blountstown police car. The first report of
the incidents emerged September 20 when Blountstown
Police Chief Glenn Kimbrel reported it to the Florida
Department of Law Enforcement for investigation.
Police officials 'say Bender has a squeaky clean file.
Bender had previously worked wit~ the Florida
Department of Corrections as a prison guard. a

FDOC Guard Charged
With Child Molestation
gents with the Brevard County Sherjffs Office
Special Victims Unit arrested William Carlile, 47, on
September 29. 2007. in Port St. John. He was charged
with 24 counts of sexual battery and 60 counts of lewd
and lascivious molestation of a child.
Carlile'
at the.
time of his a~st was a state
prison guard
_.
employed 'by the Flora~a Department of COrrectiOns at
Brevard Correctional Institution in Sharpes, FL. He' had
been employed by the FDOC since 1988, despite the fact
that he had a· history of domestic violence and a' prior
arrest for child molestation.
'

A

6

Seven years ago Carlile was arrested on similar charges
filed by another child, but the case was eventually dropped
by the state. About the same tIme the Sheriffs Office
SWAT team also had a c9nfrontation with Carlile at his
home on a domestic abuse call.
Sheriff officials say that Carlile molested his latest
victim over a five-year period. _

FDOC Guard Arrested
on Drug Charges

A

Florida Department· of Corrections guard,. who
worked at a facility supervised by Polk Correctional
Institution, was arrested September 25, 2007, and charged
with selling drugs to prisoners.
Kevin Rix, 24, a prison guard since 2005 was
employed at the Largo Road prison, which is under the,
supervision of nearby Polk CI.
.
According to the Florida Department of Law
Enforcement, a three-month investigation by that agency
found that Rix provided drugs to prisoners in exchange for
cash. The FDOC and .the Pinellas County Sheriffs
Narcotics Investigation Division also participated in the
investigation.
.
Rix faces charges of unlawful compensation.
introducing contraband into a prison and trafficking in
cocaine. _

Prisoners: Have a free copy of FPLP sent to a family
member 0; friend on the outside. Simply send us their
name and address on this form. PLEASE PRiNT.

Name
Address
City
State,

. Zip

~
r:r Complete and Mall to:
FLORIDA PRISON LEGAL PERSPECTIVES
P.O. Box 1511, Chrislmas,FL 32709·1511

Florida Pi-ison Legal Perspectives

L6renD. Rhoton
_____.p.o..
st.c.o.n.Vi.'c.tiO.'n.·.A• .tt.o_rn.e.y
'.
•
•
•
.'
•

~.

DirectAppeals
Belated Appeals, ,
Rule -3.850: Motions
Sentenee Corrections
New Trials
Federal Habeas Corpus Petitions
,

I

I

•

.

-

.

•

"

,

412 East Mad~son Street,Suite 1111
,
Tampa, Florida 33602,
(813) 226-3138
.
,Fax (813) 221-2182
Email: lorenrhoton@rhotonpostconviction.com
'Website: .www.rhotonpostconvic,tion.com
'

,

,

.

' ,

,

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

..

':

.

"

BUY THE'BOOK'- ON SALE NOW
POSTCONVICTION RELIEF FOR: THE FLORIDA PRISONER

A' Compilation ofSelecied PostcorivictionCorner Articles,
A collection of Loren Rhoton'sI'oitconvictionCornef articles is now available in one '
convenient book geared towards Florida inmates seeking justice in their cases. Insights based
on professional experience, case citations,and references, to the;: relevant rules of procedure
are proyided. This book is ~pecifically direpted toward those' pursuing postconviction relief.

To order, send $20.00 in the form of a money order, cashier's check or inmate
bank check (no stamps, cash or personal cliecks please) t~ t~e address above, or
, order online at WWlV.rhotonpostconvicti9n.com~
7

Florida Prison Legal Penpectives

.

POST CONVICTION
CORNER

"\

,
"

by Loren Rhoton, Esq.

,;

8

Florida Rule of Criminal Procedure 3.850 prescribes a two:,year period of
limitation for the filing of most postconviction issues which collaterally attack a
judgment and sentence. The period of limitations begins to run when the
judgment and sentence is final. There are a few exceptions to the period of
limitations spelled out in rule 3.850 (newly discovered evidence, new
constitutional case law which is retroactive, and failure of counsel to timely file a
motion when retained to do so). There are sometimes (but not often) other issues
which may be filed outside of the two year period of limitations. One such claim
arises when jurisdiction of the trial court is challenged.
A void judgment may be challenged at any time. BroWn v. State, 917 So.2d
272 (Fla. 5 th DCA 2005). Assertions challenging subject matter jurisdiction of a .
court involve claims of fundamental error and can be raised at any time, including
for the first time on direct appeal. Booker v. State, 497 So.2d 957,958 (Fla. 1st
DCA ]986). Such issues can also be raised outside of the two-year period
imposed by Rule 3.850. A trial court should review the merits of a postconviction
motion, even if untimely, which raises ajurisdictional issue that was not
previously considered on the merits. Gunn v. State, 947 So.2d 551 (Fla. 4th DCA
2001). There a,re any number of ways ~hich a court can lack jurisdiction over a
case.
In HarreU v. State, 721 So.2d 1185 (Fla. 1998), the defendant entered a
guilty plea in the trial court while a petition for writ of prohibition was pending in
the district court. Later, well after Harrell's two-year period of limitations had
passed. Harrell challenged his judgment and sentence on the basis that the trial
court was without jurisdiction to. accept his plea and adjudicate him. The
challenge was filed as a petition for writ or error coram nobis but was considered
as a rule 3.850 motion.
The Harrell court first noted that the petition raised a fundamental defect in
Harrell's conviction which, if true, required the conviction to be set aside. Id. at
] 186. Next? it was held that the lack ofjurisdiction could be raised at any time.
See, C.W. v. State. 637 So.2d 28, 29 (Fla. 2d DCA 1994); Booker v. State. 497
So.2d 957 (Fla..lst DCA 1986); Page v. State, 376 So.2d901,904 (Fla. 2dDCA
1979); Wesley v. State, 375 So.2d J093, 1094 (Fla. 3d DCA 1979); Waters v.
State, 354 So.2d 1277, 1278 (Fla. 2d DCA 1978). It was further noted that a lack
ofjurisdiction cannot be cured by consent or waived by entry of a guilty plea.

Florida Prison Legal Perspectives

Akins v. State. 691 So.2d 587 (Fla. Ist DCA 1997); Radford v. State.J60 So.2d
1303 (Fla. 2d DCA 1978). The doctrine of waiver cannot be effective when the
court lacks jurisdiction over the case itself. Novaton v. State. ~10 So.2d 726, 728
n. 3 (Fla. 3d DCA 1992);' approved on other grounds, 634 So.24 607 (FJa.1994).
Another situation where there can be a lack ofjurisdiction is where the
Office of the Statewide Prosecutor becomes involved. The Statewide prosecutor
has the power to prosecute crimes only if they involve two or more judicial
circuits and are 'either 'part of a related transaction or part of an organized crime
conspiracy. Winterv. State, 781 So.2d 1111 (Fla. Pt DCA2001). Jurisdiction
must be apparent from the face of the indictment or information. Id. As a result,
the Office of the Statewide Prosecutor must allege itsjurisdiction .on the face of
the information, and any conviction based upon an information which does not
properly allege jurisdiction is void: kL If the Office of the State Prosecutor does
not have jurisdiction over case in which it has filed charges, the trial court does
not have jurisdiction to hear the case. Id.
Another situation in which a court could lack jurisdiction is if a county
court judge sits as a circuit court judge without being appointed. Thus when a
county court j~dge acts, as a circuit court judge, in contravention of an
administrative order, or when no administrative order is in place, it does so .
without proper jurisdiction. Klosenberg v. Rainwater, 410 So.2d 1009 (Fla. 3d
DCA 1982). Invalid or non-existent administrative orders render all actions and
orders of that judge who is temporarily assigned void. Rawls v. Rowls, 465 So.2d
632 (Fla. 1st DCA 1985).
The above are possible situations where a lack ofjurisdictioJ;l could arise.
These are merely examples ofa lack ofjurisdiction. Ifyou are outside of the two
year periQd of limitations and cannot satisfy one of the exceptions delineated in
Rule 3.850, it is advisable to check into the court's jurisdiction to hear your case in
the first place. If the jurisdiction is at issue, the two year period of limitations'
under Rule 3.850 may not apply to a challenge to the trial court'sjurisdiction.

a

Loren Rhoton is a member in good standing with the Florida Bar
. and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area ofthe law. both at the State ,and Federal Level. He has assisted
hllndre,d'l ofincarceratedpersons with their cases and has numerous
wrillen appel/ate opinions.

9

Florida Prison Legal Perspectives

AL- Six state prisoners and the
mother of a prisoner 'found
unconscious in his cell have filed a
law suit seeking DOC records. DOC
officials claim that the records are
not open to the public. The records,
sought concern alleged assaults by
correctional officers. The suit was
filed on September 20, 2007, after
the mysterious death of a prisoner
who had been convicted of killing
two police officers and who three
days after arriving at the prison w~s
found unconscious.
AL- During the fist week of October,
2007, a circuit judge resigned in the
middle of an investigation by a state
judicial panel. Herman Thomas had
been suspended with pay since
March when charges were filed
against him for ~nduly helping
relatives and friends with legal
problems. The panel later added
charges of sexual improprieties after
Thomas was accused of spanking
male prisoners in a private
courthouse room.
CA- A report released by a receiver
who was to oversee the California
prison health care system on
September 20, 2007, found that out
of 381 prisoner deaths 18 couId have
been prevented and 48 may have
been with proper care: The report
also- said that 66 prisoners died last
year in the state system as a result of
poor medical care.
CT- A former prisoner who was beat
by prison guards will receive a
settlement of $500,000. Robert
Joslyn, 32, filed a lawsuit claiming
he was beat by guards at the
Northern Correctional Institution
while serving a I Yz year sentence for
burglary. The state said it would
settle on October 11, 2007.

10

FL- During the first week of
Sept~mber.

2007,
the
State
Attorney's Office announced that a
former captain with the Gainesville
Police Dept., Ray Weaver, will not
face criminal charges stemming from
a
sexual-harassment
complaint.
Weaver retired in the midst of the
investigation and surrendered his law
enforcement certification. A female
officer had accused Weaver of taking
pictures of her breast by sticking a
'c!lmera phone into her shirt. The
officer also said that Weaver kissed
her on the neck, had her sit on his
lap, and masturbated in front of her.

FL- On September 5, 2007, a former
Broward County sheriff, Ken Jenne,
pleaded guilty to federal tax evasion
and mail fraud conspiracy. Jenne
resigned one day before entering his
plea. A U.S. district judge set a
sentencing hearing for Nov. 16.
2007.

sheriff's -office. The detective
allegedly arranged the whole sexual
encounter
part of an internet sex
sting operation.

as

FL- An Ocala police officer was
sentenced to two years of sex
offender community control and
three years of sex offender probation
, after pleading guilty to soliciting a
child via computer. Matthew Wayne
Edmonds, 32, was sentenced on
September 13, 2007., The child he
was soliciting turned out to be an
undercover FDLE agent posing as a
14 year old girl. Edmonds, who
worked with the Ocala police for 10
years, was aJso ordered to give up his
law enforcement license and register
as a sex <;lffender.
.FL- On September 18, 2007, Col.
Christopher A. Knight. 50, resigned
in the midst of an investigation. The
investigation concluded that Knight,
'the head of the Florida Highway
Patrol, had been negligent in, his
duties and falsified records.

FL- Chris Wietzer was hired as a
correctional officer in the Alachua
County Jail during the first week of FL- On September 21, 2007, Larry
'September, 2007. Last m~nth,
Bostic, 5 I, was released from prison
Wietzer resigned as a deputy for the
Alachua County Sheriff's Office
after DNA evidence didn't match
when he was accused of 'driving Ii
evidence found in a rape crime
scene. Bostic was convicted of rape
Sheriff's Office' vehicle under the
influence of alcohol while off-duty.
and spent more than 19 years in
prison for a crime he didn't commit.
FL- A U.S. assistant attorney based
FL-Two corrections officers were
in Pensacola tried to hang himself
with a sheet in his cell at the Sanilac
fired and one resigned on October 8,
2007 after an internal investigation
County Jail in Michigan. Another
showed they used improper force on
inmate told jail officials who
prevented his suicide. John Atchison,
a prisoner. The incident took place at
53, was arrested on September 16,
the Marion County Jail. The
2007, at the Detroit Metropolitan
investigation showed that Officer
Airport. The federal prosecutor had
David Tencza kicked the inmate
between ,two-five times without
flew to Michigan for a sexual
encounter with a 5-year-old girl, said
legitimate justification. The other
two officers were Beatriz Ayala and
authorities. However, when he met
with a woman that he thought was
Timothy Lemmeyer. Officials say
the mother of the girl, the woman
that it's not clear what role that
was a detective working witl1 the

Florida Prison Legal Perspectives
Lemmeyer

Angel Diaz in December, 2006. The
next execution was set for Nov. 15,
2007.

FL- A police officer who was part of
the department's youth outreach
program known as .the Explorer
Club, was fired on October 4, 2007
after being arrested on charges of
sexual activjty with two underage
girls. An FDLE investigation alleged
that, Charles Bender, touched one
gitl underneath her bra and received
oral sex from another girl on four
different occasions.

FL- Officials at the Alachua County
Sheriffs . office announced on
October 16, 2007, that a settlement
was reached in a lawsuit filed on
behalf of three female inmates that
were raped while at the' jail by
another inmate. The three females
claimed they were raped by
Randolph Jackson who received 30
years for charges filed on behalf of
two of the three females. The lawsuit
against the sheriffs office was settled
for 1.25 million.

Officers
played.

Ayala

and

FL- Gov. Crist on October 31,2007,
issued an order that calls for the
reports prepared by the Parole
Commission be provided to prisoners
seeking clemency. The ACLU
praised the governor's decision to
release the confidential reports
prepared by the commission.
FL- On November 2, 2007, James
Troiano, a captain at the Alachua
County Jail, was demoted to
lieutenant and reassigned from his
P.ost. Authorities say Troiano lacked
personal and professional skills to be
a productive supervisor. Traiano was
another example of Sheriff Darnell's
plan to clean the agency since taking
office. Other officers have also been
reassigned or demoted by Darnell,
including the former jail director, the
ass. director and the jail director
major.
FL- Michael Mazza, 40, escaped
while being transported to court on
November 7, 2007. Authorities
released a statement that a 76-yearold deputy, Paul Rein, was fatally
shot with his own gun in Pompano
Beach. Mazza was later captured and
found with the deputy's gun.
FL- The Florida Supreme Court
unanimously held on November I,
2007, that the state's lethal injection
procedure was not unconstitutionally
cruel. The Court added that FDOC
had taken additional safeguards into
the protocol since the execution of

.IL- On October 2, 2007. federal
judge sentenced, Erik Johnson. a
former Chicago police officer. to six
years in federal prison. Johnson was
s.cntenced for taking part in a ring
that was ripping off drug dealers.
Tears ran down Johnson's face when
the judge stated that his corrupt
activities had undermined trust in the
police department before handing
down the sentence. Other officers are
still pending charges.

IN- A police officer resigned after
being charged with reckless driving
and interference with reporting a
crime on September 20. 2007. Jason
Lyons, 38, crashed a squad car while
showing off for three college student
FL- The Florida Supreme Court
females that were riding in his squad
dismissed a formal complaint against
a judge on October 26, 2007, for , car with him.
unwanted sexual advances filed by
MT- An internal investigation by the
one of his law students. The Court
state Corrections Department inro
dismissed the complaint l1ecause
employees' email at Montana State
Judge James Hauser. had retired on
Prison found "disgusting" behavior.
the first of October.
. Some emails contained sexually
explicit and racial humor, nuditY and
FL- A former prisoner who was
released from the Gainesville Work
other sexual remarks, said the
agency. One employee.resigned and
Release Center in December, 2006,
~as arrested on October 25, 2007,
dozens of others may be disciplined.
said officials.
for flashing and stalking. An
employee at the Court Services
.NC- After spending 18 years in
Building in Gainesville said that
Barry Bernard Adams, 41, exposed
prison for child rape. Allen Dail. 39.
himself at least four times. The
\vas cleared of his conviction after
employee called an officer who also
new DNA showed he did not commit
witnessed the incident.
the crime. Dail was released from
prison on August 28.2007.
FL- On October 27,2007, a MiamiDade undercover police officer was
NC- Former Roberson County
arrested. Authorities arrested Ricardo
Sheriff Glenn Maynor was charged
Toledo on allegations that he took
in mid-September with lying to a
SI,OO,OOO from a motorist and let him
grand jury, misapplying federal
go.
funds. and allowing deputies to do
personal and political wo'rk for him
GA- On September 19,2007, David
on county time. As many as
Yates, was arrested 011 rape charges
seventeen other former deputies have
and other charges stemming from the . been charged with charges, including
rape; Yates was the police chief. A
money laundering and kidnapping.
second police officer was also
All seventeen former deputies have
pleaded guilty.
charged with influencing a witness in
Yates ~ase and violation of oath. of
office.
OR- Nearly 100 correctional officers
across the state began training on the'
use of tasers equipped with digital

11

Florida. Prison Legal Perspectives
cameras on October 1, 2007. Prison
guards say that the devices are to
help control a prison population of
over 13,500 prisoners.

and killed. Police say that Davidson
James, 37, was killed as he entered
the gate outside his home.
Investigators say the motive was
unclear. _
.

TN- A report released after an
investigation conducted by The
Tennessean, showed that over 1SO
prisoners who had escaped in the last
three decades remain uncaptured.
The report was released on
,September 16, 2007, ~nd showed that
out of 48 states that 'keep track of
prisoners who escape, California and
New York has the highest number of
uncaptured escapes.
TN,. Jennifer Hyatte, '33, a former
prison nurse was sentenced to life in
prison without parole on September
18, 2007. The sentence was handed
down for her role in helping her
husband escape who was serving a
41-year sentence. The escape took
place, at the Roane' County
Courthouse, which· ended in a
shooting where a correctional officer
was killed. Both escaped, but were
arrested in Ohio 36 hours later.
TX- Bryan Baldwit, a police
detective, was arrested on September
13, 2007, after hitting a man who
was dating his ex-wife. Baldwit was
off-duty' when the incident took
place. Baldwit's case is the se,cond in
recent months where a city detective
was charged with assault.
TX- A death row prisoner scheduled
to die was spared in his final hours
on September 13.2007. Joseph Lave
had been convicted of two murders.
The state attorney found' evidence
that it's believed was withheld from
Lave's trial lawyers. The state said
that attorneys from their office
mis~ed the court •. regarding the
eviden~e .of a e secpnd p~lygraph test
given 'to Lav.e's co-defendant. The
attorneys no longer work with the
State Attorney's Office.

~

n

:r

5:

:s

OQ
0

...
III

n~r:n~~>

III iii'

ti"::J S

,..~
:3
n ~
_.

!3

'<8: "r1 C.C.
00

(II :s
_.
'"
:s :3

§

~'8

-III

C

o' Q.
:s :s

III 0
crocr
C n
-cr
a III

:;is.
C '"
a2.
-'n
::10<

ac
O'g
iil

llO
llOQ.

:s <
Q.n
n)( ::l
'n
0'n
"

_.

ii'~:s
:s

n Ii:

$D •

ltD
n

8'

;:a

'<

0
C
Q.

~

c:

!>

0

0

3::

o
-=
v. ....

~.

•.

Q.
o·
-~. n
\OotJ:lo

OO_"tl~
0'"
\O~
0'-l"TjX==

~t""Vli;l
-I.>J~~
- N .... tr1
-I.>J

~

VI

1:l

c::
••

ca

."

!3

CT

m
n
-ac:: <::)'(1)

~.

"....=
Q.

=
S'

'<

Ul

0

0

I!).

";::
"::t.::I

"0

~

a

$

en

<

=
=-

I!)

""
'"

g.

~

::I

I!)
Ul
Ul

6i::C

....::!.

"•.

:~
I!)

0

8, eL

a·

3[

~

Q.R'515l

8§
ifng.
Ei' [
8'

.-

~g,8.E::E::~

o-'"
01

~
~i"C)"
g :s

00 00'0
VI 0''0
!it~oo~

<
=
r::
'-<"
=
n'

::I

=
::s
-=
=
""l

$

CIQ

III
III

....

"0

•..,

~

"r1
.. -0

>8

~~
en
~

;a.-~
O"~

'< 0

f~a
::I

.0
"1

.~~.
?S'

::ca

§-o

goa

=Et-

=

D:1!

=
=
.,r:: iiif°Pi'~~::g
c: •• e.
-.: ~::s- " ~
n
::1
I..
f:
i§'8 ~ entil ttl~ '"g
!!.
S'c. ~_ ;; ~,r~
=
o •. e:
tr:1
=
<e. _.~ a ~ "'"'
=
!ii'g;!ii'Cooiiil'§.
n
!it
n
~~~m
=
en
·en
-<
...

OQ'<

I!)

0"

=
r::
....

,

~.

::I

""l

~.CIQ

~

0

'<

~

II>

~ ~.

CT

~

trl ....
~

";;I•.
::I
e

§
0

~.....

III

I!)

.

In'

"0

Ul

III

~

.·1Il

~

III

~

::I

c::

n.

en

=

~

::t.
::I

-•.
;::
III

~

.

~

IV

caO

la' ~

~ 0
o '""
'""n

n
~.»

a~

&:~

, ~ ~!.
iil

9

g

~

=

:So
Q,.

~

•

n

=
e

.=
UJ

>

=

.=...

=
....=

~

~

~

Florida Prison Legal Perspect~es

t

The/ollowing are summaries a/recent state and/ederal cases that may be use/ul to or have a significant impact on Florida prisoners.
Readers should always read the/ull opinion as published in the Florida Lalli WeelcJy (Fla. L. WeeJ:/y): Florida Law Weelc/y Federal
(Fla. L. Weekly Federal); Southern Reporter 2d (So. 2d): Supreme Court Reporter (S. Ct.); Fc:leral Reporter 3d {F.3dJ: or the
Federal Supplement 2d (F.Supp. lei). since these summaries'are/or general information only.
Supr~me

Court Of Florida

immediately upon .the release of the
opini~n.

In Re: Amendments to Florida Rules
In Re: Standard Jury Instructions In
ofCriminal Procedure 3. 790, 32 Fla.
,
Criminal Cases, 32 Fla. L. Weekly
L. Weekly S423 (Fla. 7/5/07)
S513
(Fla. 7/12107)'
.
In conjunction with the Florida
The
Supreme
Court
Committee'
Supreme Court's request that
on Standard Jury Instructions in
concemed rules 3.131, Pretrial
Criminal
Cases. Those amendments
Release
and
3~ l32,
Pretrial
included
the
following instructions:
Detention, the Criminal Procedure
8.4Aggravated
Battery; '8.1 0Rules Committee (Committee) filed
an out-of-cycle report and. proposed . Assault on Law Enforcement Officer
or Firefighter; 8.11-' Battery on Law
amendments to rule 3.790, Probation
Enforcement Officer or Firefighter;
and Community Control. .The
8.12- Aggravated Assault. oil Law
proposed amendments implemented
provisions of the Jessica Lunsford. Enforcement Officer or Firefighter,
8.13- Aggravated Battery on Law
Act, which became effective
Enforcement Officer or Firefighter;
September I, 2005, and which
8.14- Aggravated Battery oit 'Person
concems the release of high-risk
65 Years. of Age or Older; 11.1sexual offenders and predators who
Sexual Battery- Victim Less than 12
are arrested for committing a
Years of Age; 13.1 Burglary; 14.2material violation of probation or
Dealing
in
Stolen
Property
community control. See: ch. 2005-'
(Fencing); 14.3- Dealing in Stolen
28, section 13, at 223-24, Laws of
Property (Organizing); and 27.1Fla.
Escape.
While this matter was pending,
The Committee also pniposed
the Legislature enacted the Antinew instructions. Those are listed as
Murder Act, which became effective
follows: 6.3- Attempted Felony
March 12,2007, a!1d which concerns
Murder; 6.3(a)- Attempted Felony
the release of violent felony
Murder-Injury Caused by Another;
offenders of special concer~ and
, 8.4(a)- Aggravated Batiery (Pregnant
certain other offenders who are
,
Victim); 10.16- Use of a Firearm
arrested for committing a ·material
While Under th~ Influence; 13.S(a)violation of probation or community
Trespass on School Grounds or
control. See: ch. 2007-2~ Laws of
Facilities;' 13.S(b)- Trespass on
Fla. After slight changes were made
School
Grounds or .Facilities after
in the amendments, the Committee
•
Warning
by Principal
or Designee;
proposed that new subdivision (b)(2) .
Use
or
Possession
20.13Fraudulent
of rule 3.790 be reserved for
of
.
Personal
Identification
Lunsford Act proceedings and' dtat
Information; 20.14- Harassment by
new subdivision (bX3) be added for
Use of Personal Identification
Anti~Murder Act proceedings.
Information of a Minor; 20.16After a review of the amendments
Use
of Personal
Fraudulent
the Florida Supreme Court adopted
Identification Information of a Minor
them on an emergency basis. The
by a Parent or Guardian; 20.17amendments
became
effective

Fraudulent Use of Possession of
Personal Identification Information
.Concerning a Deceased Individual;
and 20.18- Fraudulent Creation, Use
or Possession of Counterfeit Personal
Identification Information.
After its review, the Florida
Supreme Court declined to authorize
proposed new instructions 20.13 and
20.17. Those proposals were referred
bac~' to the Committee. Otherwise,
all other amendments and new
instructions were authorized for
publication and use, and became
effective when the opinion was fimt!'
[Note: .A complete view of these
amendments and new instructions
can be found in Volume 32, Number
29 of the July 20,2007, Florida Law
Weekly at S514-S523.]

District Courts Of Appeal

Jones v. Fla. Parole Commission,
32 Fla. Law Weekly 01578 (Fla.
.
15t DCA 6/27/07)
In a prior ruling ofT6ny Jones'
case, Jones v. Fla. Parole

Commission, 944 So.2d 1244

(Fla. 15t DCA 2006), the appellate
.court ordered a refund of monies
taken from his prison account
because his original filings were
of
a
collateral
criminal
proceeding. Because no monies
had been reft.u)ded to him, he filed
a mandamus petition that asked
the appellate court to enforce itsmandate from its prior ruling.
In answ~r to Jones' complaint,
the Commission concede that Mr.

13

'.Flori~a Prison Legal'Perspectives Jones' claims were well-taken.
Accordingly. Jones' p~tition was
granted" and the lower court was
directed to issue aJ), order complying
with _theorigiDal'_"!.JWd~te:, order
within 15 days of'tbe;i$Suarice::of the
mandate in the cause ,b~fore the
court.

Rowlie v. Fla. Parole Commission,
32 Fla. L. Weekly D1578 (Fla. lSI

,DCA ~/27/07) "
, Thomas Rowlie filed for certiorari
review of the lower court's opinion
that vacation of the illegal lien placed
on his prison account was moot since
the filing fee on the collateral
criminal proceeding ha.d already been
paid in full. ,
In Turner v. McDonough, 949
So.2d ]] 06, 1107 (Fla. I II DCA
2007},it was opined that "[i]f a'lien
is erroneously placed on an inmate's
account, the inmate is entitled to
of
the
lien
and
removal
reimbursement of the funds that were
withdrawn from the ac~ount to
, satisfy the lien. Vntil and iJnless the
funds 'are reimbursed, the matter is
not moot."
Rowlie's petitic:>n was granted as
far as the unauthorized lien issue.
The lien order was vacated and the
lower court was directed to issue an
order directing the reimbursement of
those funds' withdrawn from the
- account pursuant to the'lien: - - -

, Hurd v. State, 32 Fla. L. Weekly
01594 (Fla. 41h DCA 6/27/07)
Todd D. Hurd appealed the denial'
of his motion to suppress evidence
found subsequent to a non-valid
traffic stop.
The background of this case is
where Hurd was observed by a police
. officer making' a lane change and a
turn without giving any signal.' The
officer further testified that during
Hurd's maneuver. --there were no
other cars or. traffic around.
Under search and ~eizure law, the
stopping of a motorist is reasonable
where a police officer has probable
cause to -believe a traffic violation
14 has occurred. See: Whren v. U.S.,

517 U.S. 806,810 (1996). However,
the test is whether a police officer
could have stopped the vehicle for a
traffic violation.
The appellate court's findings
were that a stop for Hurd failing to
use a tum signal was not valid where
it was testified. that no other traffic
was affected by failure to signal.
,Further, failure to maintain single
lane alone cannot establish probable
cause when the action is done safely,
and nothing in the record established
_that Hurd's actions were not done
safely, lead an officer to suspect
impairment, or that Hurd's driving
could be considere~ erratic. _
Therefore, it was found that the
lower court's order denying' Hurd's
motion was in error. As such, Hurd's
conviction and sentence were
reversed and the case was remanded
with instructions for the lower court
to enter an order granting the motion
to suppress and to hold further
proceedings that will be consistent
with the appellate court's opinion. -

Ragan v. McDonough, 32 Fla. L.
Weekly Dl606 (Fla. 41h DCA 6/7/07)
Amos Ragan challenged the lower
court's order that denied a habeas
corpus petition where he had
attacked the Parole Commission's'
2002 revocation of his parole.
.
In October, 2006, Ragan filed his
habeas petition, and the lower court
issued -an order to _ show cause
directed to the Parole Commission.
The Commission filed its response,
and five days later, the lower court
entered its order denying Ragan's
petition. It was reasoned that the
challenge to the 2002 revocation
order was time barred pursuant to
section 95.11 (5) (f), Florida Statutes
(2006). Ragan then filed for a
rehearing, noting that the lower
court's - order of denial was
prematurely entered, because it was.
issued before he had a chance to file
his reply. The lower court denied the
motion for rehearing.
Florida Rules of Appellate
Procedure 9.100(k) indicates that a
petitioner in a habeas corpus

proceeding "may serve a reply. II The
. purpose of a reply is to avoid an
affirmative .defense. See: Florida
Rules of Civil Procedure 1.100(a)
Ragan's case was 'reversed and
remanded to consider his reply to the
.Commission's response.

Earls v. Stale, 32 Fla.· L. Weekly
D161 0 (Fla. 1II DCA 6129/07)
Jason Earls challenged a lower
court's summary denial of his rule
3.850motion as being untimely filed.
On August 25, 2004, Earls was
sentenc~d and he did not file a direct
appeal. The certificate of service on
his 3.850 motion reflected that the
motion was placed in prison officials
hands on September 22, 2006, for
mailing.
'
The two-year time limit for filing
a rule 3.850 motion does not begin to
run until appellate proceedings have
concluded .and the court issues a
mandate or thirty days after the trial
court enters its order if no direct
appeal is flied. (emphaSis added).
See: Gust \I. State, 535 So.2d 642
(Fla. III DCA 1988).
The appellate court opined that
Earls' time limit began to run on
September 24, 2004. Thus, .under the
mailbox rule, the date that a motion
. is placed in pri~on official hands for
filing is the date the motion is
considered filed. See: Thompson \I.
Slaii;761 So.2d 3i4 (Fla. 2(00)..
Accordingly, the case was
reversed and remanded for the lower
court to consider the m9tion on the
,mel1its. .
Clowers \I. State, 32 Fla. L. Weekly
DI650 (Fla. 3d DCA 7/5/07)
Sterling'A. Clowers appealed a
trial court's denial of his public
records request.
, Clowers, pursuant .(0 section
119.0 I, Florida Statutes (2006), filed
a motion (or production of the State
Attorney's prosecutorial files in order
to prepare a rule 3.850 motion. He
also declared that he was indigent
and that he should receive the
documents without cost. The lower

Florida Prison Legal Penpectives
court denied the motion as legally
insufficient on its face.
The State conceded that Clowers
was entitled to copies of its files,
however, a defendant must pay the
State for such copies. The appellate
court agreed.
It was opined that while an
indigent prisoner may obtain free
copies for a plenary appeal, there is
no such provision to obtain them
afterward. See: Ridge v. Adams, 643
So.2d 116, 117 (Fla. 5th DCA 1994).
Accordingly, the lower, court's
denial of Clowers' motion was
affirmed.

Thomas
v.
Florida' Parole
Commission, 32 Fla. L. Weekly
DI696 (Fla. lit DCA 7/12107)
Dorrie Thomas appealed the
dismissal of his mandamus petition
for not filing copies of his prison
account 'records as required by
section 57.085, Florida Statutes.
Thomas had filed an affidavit of
indigence where he alleged he was
indigent within the meaning of
section 57.08 I(a), Fla. Statutes
(2004), and was entitled to a filing
fee waiver because his claim was a
collateral
criminal
proceeding
pursuant to Schmidl v. Crusoe, 878
So.2d 361 (Fla. 2003). The lower
court clerk issued a response stating
that Thomas had failed to file all the
required information to determine his
eligibility to proceed as an indigent
and ordered Thomas to comply
within 60 days or pay the filing fee,
the clerk provided an affidavit of
indigence form that cited section
57.085, Florida Statutes. Thomas
filed this form as a supplement to his
initial affidavit. and supplied all the
information requested by the clerk
with the exception of a photocopy of
his prison account records for the
preceding six months. Subsequently,
the lower court dismissed Thomas'
case for failing to fully comply with
the clerk's documentation request.
On appeal, Thomas argued that
the lower court's denial was in error
because he had completed the
affidavit requirements
initially,

pursuant to section 57.081 which did
not require the production of copies
of six months' prison account
records. The appellate court agreed. ,
Section 57.085 requires a lien to
be placed on a, prisoner's account.
However, section 57.085 specifically
exempts criminal proceedings and
'''collateral criminal proceeding[s]."
See: section 57.085 (10), Fla. Stat.,
(2006).
The appellate court opined, if a
prisoner is not required' to proceed
under section 57.085, Florida
Statutes, he may be permitted to
proceed as an indigent pursuant to
section . 57.081. Section 57.082
details the information t~at a
petitioner is required to supply to the
clerk of the court.... An affidavit
under section 57.081 must supply
most of the information required in
one filed under 57.085. "Specifically,
copies of the records of the inmate's
trust account for the preceding six
months are not required, to be
provided by a petitioner proceeding
, under section 57.081."
Thomas' case was reversed and
remanded, and if he was found to be
indigent under section, 57.081,
determination on the merits of his
petition should be made.

Brown v. Siale, 32 Fla. L. Weekly
DI711 (Fla. 4th DCA 7/18/07)
Robert Brown appealed the
summary denial of his rule 3.850
motion where he alleged, in part.
prosecutorial misconduct.
In Brown's motion, it was claimed
that the prosecution in his case
deliberately deceived the court and
jury by presenting critical testimony
which the state knew to be false.
The testimony Brown's subjeat
was about came from a witness,
Jerome Fiddeinan~ who later recanted
his trial testimony. This recantation
was learned by Brown and which he
attached an affidavit to his motion
from Fiddeman that plainly stated he
had testified falsely.
As a result. Brown's case was
reviewed, as a newly discovered
evidence claim, which the state did

not dispute. Based on that finding,
,the appellate court opined it needed
not resolve whether Brown was
entitled to relief for prosecutorial
misconduct pursuant to Giglo v. u.s.,
405 U.S. 150 (1972).
McLin v. Siale, 827 So.2d 948
(Fla. 2002), held that an evidentiary
hearing is required on a claim of
newly discovered evidence, based on
the recantation of trial testimony,
unless' the sworn allegations are
conclusively refuted by the record, or
are inherently incredible.
Brown's case was reversed and
remanded for further proceedings on
~he subJect.

Pe"elle v. Siale, 32 Fla. L. Weekly
DI712 (Fla. 4th DCA 7/18/07)
In Stephen Perrette's case the
appellate court opined that a timely
motion to withdraw plea, that
claimed the plea was based On
counsels misadvise, falls within an
exception to the general rule
preventing a defendant from filing
pro se motions while represented by
counsel. See: Bermudez v. Siale, 90 I
So.2d 981, 984 (Fla. 411I DCA 2005).
Thus, an evidentiary hearing would
b,e necessary to resolve the motion to
withdraw.
.
Perrette's case was remanded for
the lower court to appoint conflictfree. counsel and an evidenti8IY
hearing on his motion.
OJflce ofthe Public Defender. Fourth'
Judicial Circuit v. Madison, 32 Fla.
'L. Weekly DI749 (Fla. 1st DCA
7120/07)

In this case the appellate court
stressed that once the Public
Defender's Office's representation of
an indigent defendant ends, "the
office must." upon request, surrender
any trial transcripts in its possession
to the defendant. See: Pearce v.
Sheffey, 647 So.2d 333 (Fla. 2d DCA
1994) (finding public defender must
relinquish transcnpt to petitioner
upon conclusion ~f underlying
appeal). See also: Thompson v.
Unterberger, 577 So.2d 684 (Fla. 2d
DCA 1991), and Davis v. Smith,861

15

Florida Prison Legal Penpectives
So.2d 1214, 121'6 (Fla: 2d. DCA
2003) ("[M]andamus is. a proper
means to compera public defenderto
furnish ... such transcripts. tI)

Evans v. State, 32 Fla. L. Weekly
01734 (Fla. 3d DCA 7/18/07)
Kanisky Evans sought to reverse
the lower court's dismissal of his rule
3.850 'motion because it "":as
simultaneously filed with a habeas
petition in the appellate court for
ineffective assistance of, appellate
counsel.
The lower court had erroneously
determined that it lacked jurisdiction
on Evans' rule 3.850 motion while
his habeas petition was pending in
the appellate court.
. The appellate court opined that
the. lower court was in error because
the two filings' subjects were
separate and distinct and thus could
.proceed 'simultaneously. See: White
v. State, 855 So.2d 723 (Fla. 3d DCA
2003).
The lower court's order striking
Evans' motion was reversed and the
cause was remanded for the motion
to be reinstated and the m~rits of the
motion to be considered.
Banco Lotion V. Avtek Electronica,
32 Fla.~. Weekly 01735 (Fla. 3d
DCA 7/18/07)
In this civil case, the appellate
court pointed out that where record
demonstrates good cause for further
extending time to effect service of
process, it would be error for the
lower court to deny a motion for
extension.
Here, it was found that the
petitioner showed good cause and his
petition was granted and the order
t~at denied his extension was
quashed.
[Note: Judge Green, 1. concurred
with an opinion. He stated thought:
"However, I write separately because
our decision should not be construed
as carte blanche authority for the
petitioner to continue to receive
, unlimited extensions. The petitioner
must continue to demonstrate that it

16

is making substantial . pr~gress to
locate and serve the respondents.]

Clark v. State. 32 Fla. L. Weekly
D1735 (Fla. 3d DCA 7118/07)
Vincent Clark appealed the de~ial
of his motion to correct an illegal
sentence where he claimed that the
imposition of· a violent' career
criminal designation was error.
Clarkwas convicted of battery on
a law enforcement officer. Based on
the authority of Hearns v. State, 32
Fla. L. Weekly S177 (Fla. 4/26/07),
the appellate court opined that· the
lower court in Clark's case erred in
finding that his conviction .was a
qualifying offense for purposes of a
violent career criminal sentence.
Batt~i-y on a law enforcement officer
, is not a qualifying offense for'such
designation.
Therefore, Clark's case was
reversed
and
remanded
with
instructions to re-sentence Clark
without the violent career criminal
designation.
'Torgerson v. State, 3'2 Fla. L.
Weekly 01834 (Fla. 4th DCA 8/1/07)
James Torgerson's case presented
the appellate court with an' expired
statute of limitation to prosecute
issue.
Initially, Torgerson brought the
.issue to the lower court pl,lrsuant to a
rule 3.850 motion, and it was: denied.
It was explained in his motion that
the statute of limitations had run out
for the prosecution on his charged
crimes (lewd or lascivious battery on
a person between 12 and 16, and
sexual battery-great force not used).
The State had charged Torgerson of
these, crimes on May 18, 2005. The
charging document alleged the
offenses. were committed between
January I, 2001 and August 14,
2001.
A capias was issued May 19,
2005 and Torgerson was arrested
June 9, 2005. His argument was that
on August IS, 2004, statute of
limitations had ran out, because that
was three years after the' victim
turned 16 years old. According to the

statutes that were in effect at the
time, sec. 775.15(7), 'Fla. Stat.
(2000), the statute of limitations
began to run after the victim's 16th
birthday--not 18 years old as it is in
the 2001Flil. Statutes.
'Therefore, the appellate court
opined that it appeared Torgerson
had grounds to dismiss prior to
entering his plea for a 30 month
prison sentence followed by 15 years
probation agreement. .Because of the
findings, the appellate court reversed
the lower court's denial of
Torgerson's rule 3.850 motion, and
remanded the case - for further
proceedings. It was further instructed
that because Torgerson appeared' to
be entitled to discharge the lower
court was directed to expeditiously
hold any hearing it deems necessary
to properly decide the case on the
~erits .

Martinez v. State, 32 Fla. L. Weekly
01839 (Fla. 41h DCA 811/07) . ,
Pascua\ Martinez had petitioned
th'e appellate court with a certiorari
writ that sought review of an' order
that struck is rule 3.800 (c) motion as
being untimely.
Martinez's peti.tion was previously
denied, however, the appellate court
vacated that order and granted a
rehearing.
It was found that Martinez's
counsel had filed the rule 3.800 (c)
motion within the 60 day time-limit.
At the same time, the lower court
was asked to grant an extension of
time for a hearing on the motion.
However, the rule 3.800 (c) motion
was not delivered to the judge until
. after the 60 ,day period: As a result,
the judge struck it an~ did not rule on
the requested extension of time.
The appellate court vacated the
lower court's order and remanded the
case for it to rule on the extension
request. See: Abreu v. State, 660
So.2d 703 (Fla. 1995) (where it was
held that pursuant to Florida Rule of
Criminal Procedure 3.050, the court
may extend the sixty-day limit on a
rul~ 3.800 (c) motion as long as the

Florida Prison Legal Perspectives
motion is' resolved
reasonable time.)

within

a

Silver v. State, 32 Fla. L. Weekly
, D 1843 (Fla: 151 DCA 8/3/07)
Michael Silver presented the
appellate court with a lower court's
denial of his rule 3.850 motion as
being untimely.
Subsequent to Silver pleaing
guilty and being sentenced to his
charged crime, he tiled a direct
appeal. He later tiled a motion to
voluntarily dismiss the case on direct
appeal, and on August 29, 2002, his
direct
appeal
was
rendered
dismissed.
On August 5, 2004, Silver filed
his rule 3.850 motion in the 'lower
court. It was denied as untimely
based upon the fact that Silver
voluntarilY dismissed his direct
appeal. The lower' court reasoned,
apparently, that because of the
voluntary dismissal the direct appeal
did not exist, causing Silver's
sentence to become final 30 days
after sentencing was imposed.
On appeat it was opined that
Silver's conviction did not become·
final until after the appellate court
relinquished jurisdiction' on August
29, 2002, when it grante~ the
voluntary dismissal. See: Small v.
State, 941 So.2d 555 (Fla. lSI DCA

thus, his rule 3.800 (a) that sought it
was properly denied, and the
appellate court affirmed the ruling.

Watson v. State, 32 Fla. L. Weekly
D 1856 (Fla. 2d DCA 8/S/07)
Alexander Watson appealed his
judgment and conviction by jury trial
of possession of a firearm' or
ammunition by a convicted felon.
At trial, Watson move4 for a
judgment of acquittal on the ground
that the State fai led to prove that 'he
had constructively possessed the
items as listed in ,the charging
inform,ation.
The appellate court opined that,
indeed, evidence was insufficient to
establish Watson was in constructive
possession
of
firearms
and
ammunition discovered beneath the
front passenger seat, in glove box,
and in trunk of the rental car jointly
occupied by him and another man
who had borrowed it from his
girlfriend. Furthermore, it was
opined that even if the evidence was
sufficient to prove that Watson knew
about the items, the state had failed
to prove he had control over any of
it, other than his mere proximity to
_
the items.
Watson's case was reversed and
remanded
with
directions
to
discharge the ex-prisoner.

,. 2QQ~).
Therefore, the lower court's denial
was reversed and Silver's case was
remanded for the merits of his
motion to be considered.

Mackall v. State, 32 Fla. L. Weekly
D18S0 (Fla. 5th DCA 8/3/07)
The appellate court in Harlan R.
Mackall's case has stressed that a
defendant is not legally entitled to
jail credit against a Florida sentence
for time spent incarcerated in another
state. See: Kronz v. State, 462 So.2d
450,451 (Fla. 1985).
It is at the trial court's discretion
whether out-of-state jail credit is
awarded. See: Gallinat v. State, 941
So.2d 1237, 1240 (Fla. 5th DCA
2007). The lower court in Mackall's
case chose not to award such credit,

Scott v. Slate, 32 Fla. L. Weekly
D1899 (Fla. 4 th DCA 8/8/07)
In Melvin Scon's appeal of the
denial of his rule 3.800 (a) motion,
. the appellate court pointed out that a
, claim anacking a lower court's order
that places additional conditions on a
plea agreement which were not
accepted by the defendant, because
defendant was sentenced in absentia,
does not go to the legality of' the
sentence, but to the validity of the
plea or conviction. Further, being
sentenced, in absentia does not make
the resulting sentence illegal for rule
3.800 (a) purposes. See, e.g.,
Patterson v. Slate, 904 So.2d 593
(Fla. '4th DCA 2005) (affirming
denial of rule 3.800 (a) motion
claiming defendant was sentenced in

absentia, without prejudice to raise
the issue in a timely rule 3.850
motion). See also: Harris v. Stare,
789 So.2d 1114 (Fla. lSI DCA 2001).

Bush v. State, 32 Fla. L. Weekly

DI899 (Fla. 4 th DCA 8/8/07)
On appeal from a summary denial
of Larry Bush's rule 3.850 motion,
the appellate court opined that a
claim where a defendant, states he
. would not have entered a plea of no
contest had defense counsel told him
he could tile a successful motion for
suppression of his statements to
police rather than telling him no
defense would be successful at trial
and with no good reason for such
action would constitute deficient
performance. An evidentiary hearing
would have to issue to show a
satisfaction of the prejudice prong of

Strickland.
D.B.A, v. State, 32 Fla. L. Weekly
D1920 (Fla. 2d DCA 8/1 0/07)
D.B.A. appealed the denial of his
dispositive motion to suppress
evidence found subsequent to an
.
illegal search of his person.
Stop and frisk law authorizes a
limited patdown of a detainee's outer'
clothing when the officer has
probable cau!!e . to believe the
detainee is armed with a dangerous
weapon, and only if the officer
reasonably believes that an object he
feels during patdown is a weapon
may he be allowed to seize the
.object.
The officer in D.B.A. case did not
. conduct a patdown first before he
reached into D.B.A.'s pants pocket
and pulled out a baggie of marijuana.
Thus, the officer exceeded the scope
of the stop and frisk law. See: section
901.1 5 I (S), Fla. Stat. (2006) and
Winlers v. Slate, 578 So.2d 5,6 (Fla.
2d DCA 1991). See also Frazier v.
Slate, 789 So.2d 486, 488 (Fla. 2d
,DCA 2001) and Thompson v. State,
550 So.2d 970, 071 (Fla. 2d. DCA
1990).
As a result, D.B.A.'s adjudication
of delinquency was reversed and the

,

17

Florida Prison Legal Perspectives
caSe was remanded with directions
for D.B.A. to be discharged.

Armour v. Fla. Parole Comm'm, 32
Fla. L. Weekly 01933 (Fla. 1" DCA
8114/07)

Donald Hugh Armour filed a
certiorari petition in the. app.ellate
court that challenged a circl,lit court's'
order construing his habeas petition
as one seeking, non-habeas relief and
which affirmed the suspension of his
presumptive parole release date
,(PPRD) by the Florida Parole
Commission (the Commission).
The appellate court opined that
the lower court had departed from
the essential'requirements of law. In
Armour's habeas petition he was not
challenging the suspension of his
PPRD, he was challenging the
rescission of his effective parole
release date (EPRD). Initially, the
Commission had granted parole to
Armour and had set an EPRD.
However, it later declined to parole
him and rescinded its decision due to
not wanting to wait for a foreign
state's investigation to be completed
from the state Armour sought to be
parole released to. '
The First District Court of Appeal
has stated in prior cases that "a
Commission order suspending an
inmate's PPRD and thereby refusing
to set an [EPRD] is appropriately
reviewed by mandamus," but "the
proper remedy to obtain review of a .
Commission's decision' after it has
set an EPRD. is .by habeas corpus
release." See: Williams v. Fla. Parole
Comm'n, 625 So.2d 926,.934 (Fla. 1It
DCA 1993). Also see: Griffith \I. Fla.
Parole & Probation Comm'n, 485
So.2d 818, 820 (Fla. 1986).
It was further opined that by
concluding Armour was challenging
the suspension of his PPRD,' which
was reviewed for abuse of discretion,
rather than whether the Commission
had statutory authority to rescind his
EPRD, the circuit court violated a
clearly established principle of law
resulting in a miscarriage ofjustice.
Armour's certiorari petition was
lSgranted and the lower' court was

directed to reinstate his habeas
petition, to vacate the order that had
directed him to pay a filing fee, and •
to transfer his petition to the Union •
County Circuit Court, the county
where Armour was incarcerated. See,
e.g., Carler v. Fla Parole Comm'n,
955 So.2d 665 (Fla. 111 DCA 2007),
and Knowles v. Fla. Parole Comm'",
846 ~o.2d 1246(FI.a. 1" DCA 2003).

Gainesv. Fla. Parole Comm'n & Fla.
Dept. of Corrections, 32 Fla. L.
Weekly 01934 (Fla. 1st DCA
8/14/07)
Jerome Gaines sought certiorari
review of an order issued by the
lower court denying his mandamus .
petition that sought credit for time
spent at liberty.
On review, the appellate court
opined that Gaines was not entitled
to the credit for time spent at liberty
after being mistakenly released by
county jail officials. It was the
appellate court's reasoning that
Gaines knew or should have known
that his release was in error. Further,
Gaines made no attempt to, call that
apparent error to the attention of any
authority following the release.
Accordingly, as to the above
issue, Gaines' petition was denied.
[Note: In Gaines' case, Judge Benton
dissented with the above decision
with a very well written opinion that
would make a good argument against
such decision. Hopefully, Gaines has
sought further review with his claim.
It should also be noted ~at in 32 Fla.
L. Weekly at 01982, Gaines' case
appears again. It appeared that there
were ,no changes in the appellate
,court's decision. However, it was
noted that Judge 'Benton's opinion
had slightly changed, but still
meaning quite the same, with some
paragraphs changed from the original
opinion's order.] _
.

T Y P'I N G
SERVICE
Computer - Typewriter

ALL KINDS OF TYPING

InCluding but not limited to:
Legal Briefs, Text Documents.
Newsletters, Articles. Books.
Manuscripts. Database, Charts,
Forms. Flyers, Envelopes. ETC.
Black I Color Printing & ~opylng
'''SPECIAL RAID FOR PRISONERS"

FOR A"FREE" PRICE LIST AND
MORE INFORMATION SEND A
SASE TO:
LET MY FINGERS
DO YOUR TYPING

Sandra Z. Thomas
PO Box 4178
Winter Park, FL 32793-4178
Phone: 407·579·5563

ADVEnTiSINC NOTICE
Out of conn'rn for our
nll:mbers, the 1"1'1..1' stall !I"il:s
to cnsun: Ihat Ihc adn'rlisc,'s
in FI'U' are reputahle aud
qualified to provide the Sl:rvires heing offered. UmVl:ver,
we cannot mel'! l'vl:ry :ulvl:I'liser Sf) nH:IIlIH:rs/n:aders arc
advised til always personally
contacl adn:,"tisers Ii,,' fu rt hc,"
information ahont their qualifications 01' services hefore nlahing a decision to hire them 01'
purchasc a service III' product.
You should Ilcver sClld kgal 01'
othel' dOulllH:nts 10 an advertiser hd'ol'e clllltal:ting thl:1II
and ren:iving din:dillJls III
scml sllch material.

Florida Prison Legal Perspectives
In a civil case. there are certain legal requirements that
must be met before filing this type of petition. These will
be discussed hereunder.

Florida Supreme Court Adopts
Rules for Drug Arrests

O

n Jum: 21, 2007, the Florida Supreme Court adopted
rules that would allow defendants to withdraw·their
guilty or no contest pleas after successful completion of
drug court treatment programs.
The Court made separate rules that would cover plea
withdrawals by juveniles and adults who entered their
pleas.in exchange for their cases to be transferred to drug
court.
The rules the high court adopted are in uniformity with
new laws the Florida Lt!gislature had passed in 2005 and
2006.
.
Under the new rules, judges may now take into
consideration the "need for substance abuse evaluation
and/or treatment," before deciding to release a person on
bail. _

Compelling A Trial Court To Rule
On A Motion Or Pefition
by Melvin Perez
hrough .this article the writer intends to pro~ide
information that hopefully will be useful for prisoners
who seek to compel a lower ,court to rule on a petition or
motion. We all know how frustrating it can be to have a
motion or petition sitting for months in ~he trial court
without a ruling.
Since the standard of legal sufficiency is different in
criminal and civil cases, this article will expound on both
areas oflaw.
Mandamus is the ro er remed to com el a court to
exe ase I Iscretion and decide a cause, where there is
va I reason to reserve rutin on the
r. See: Villas
aJ uJ er I ge omeowners' Ass n. Inc. v. Newman. 498
So.2d 579 {Fla. 3d DCA 1986).·Moreover"mandamus lies
to com el a trial court to rule on a motion or tltlO
a reasonable time. ee: a//ews ". Circuil CourJ, SIS
.
So.2d 1065 (Fla. Sib DCA 1987).
While courts have never defined how much time is
specifically reasonable, the, courts have applied this
principle on a case-by-case basis.
,
A petition for writ of mandamus, seeking to compeLa
lower court to rule on a motion or etition must be filed .
aVlllg JUrisdiction over the circuit cOjJrt
e
where the a~tlon IS pendlll . The authority of the DCA t~
n a writ 0 man amus is vested in Article V, Section
(4{b){3) of the Florida Constitution and restated in
\Fla.R.APP.P., Rule 9.100(a).

T

Civil Cases
Before a petition for ,writ of mandamus is filed with the
DCA on cases :tuch as declaratory judgments, injunctive
petitions, or any type of civil cases, the' prisoner musi
allege that he has made the trial court aware of the
pending action and seeks a hearing. See: AI-Hakim v.
State. 783 So.2d 293, 294 (~Ia. 5th DCA 2001). Further.
the First DCA has expanded this requirement· by holding
that "in civil proceedings prisoner must allege that a
hearing was scheduled with trial judge's office." See:
Gosby v. Third Judicial Circuit Court. 562 So.2d 775 .(Fla.
1st DCA 1990).
This requirement is met by filing a notice making the
court aware of the· pending action, and notice of hearing.
The notice must request a definite time to present
arguments to the court. It must also set the relief sought,
and the scope or matters to be addressed at the hearing.
Failure to meet these requirements will result in'dismissal
without prejudice. See: Hogan v. Dickenson, 910 So.2d
866 (Fla. 511 DCA 2005).
A notice of hearing is governed by FIa.R.Civ.P.• Rule
1.080{a) and. must be served on opposing counsel. The
notice of hearing must also contain a certificate of service
as outlined in Fla.R.Civ.P., Rule 1.080{f).
Criminal Cases
. 'f!te aforementioned req~irements do not apply to
crlmmal cases. Thus, heretofore. no court has interpreted
these cases to apply to criminal cases. While the state has
always argued that petitioners should meet these
requirements, such invitations have been rejected.
Another argument that the state has raised in an attempt
to persuade the court to deny the writ, is that the writ
should be .denied because the lower court is aware of the
pending,action. However, one court has already rejected
this argument in two different cases. See: Johnson v. State
938 So.2d 639 (Fla. 5th DCA 2006), and Lewis v. Siate:
934 So.2d 605 (Fla. Sib DCA 2006).
This court has also expressed their concern "that the
failure to rule on a motion impairs his [Petitioner's) rights
of access to the courts and due process." ld
As previously discussed in the beginning ofthis article,
collrts have never defined how much time is specifically
reasonable for a court to make a ruling on a petition or
motion. However, decisional law shows in the following
cases what the courts found to be reasonable. Six months'
was reasonable to file petition for writ of mandamus in
Smith v. State, ,603 So.2d 95 (Fla. 2nd DCA 1992). Nine
months was reasonable in Helium v. Stale. 869 So.2d 759
(Fla. I st DCA 2004). While in two other cases one year
and 103 months was found to be reasonable. See: Johnson. I
supra and Lewis, supra.
19/

!

I

i

/

,

Florida Prison Legal Perspectives
Many self-professed jailhouse lawyers think that the
court's failure to rule on a motion is due to the strong
grounds raised in the pleading itself, this is merely wishful
thinking.
.
Filing the Petition
Pursuant to Fla.R.App.P., Rule 9.030(b)(3), a district
court of appeal may issue a writ of mandamus. The
original jurisdiction of the court shall be invoked by filing.
a petition, accompanied by a filing fee. if prescribed by
law, with the clerk of the court deemed to have
jurisdiction. See: Fla.R.App.P., Rule 9.1 OO(b). Thus. if the
prisoner is proceeding in forma pauperis, he may write the
appropriate DCA and ask them for an affidavit and/or
motion of insolvency.
The procedure seeking indigent status in different
courts is not always the same. For example, the First DCA
will dismisS a petition after 20 day's notice, if a six month
bank statement is not provided with the motion and/or
affidavit of insolvency. While on the other hand, the Fifth
DCA h~ no such requirement. However, all five· district
courts of appeal require that an affidavit and/or motion of
insolvency be provided;
Further, the caption on the petition shall contain the
name of the court and the name and designation of all
parties on each side. All parties to the proceeding in the
lower tribunal who are not petitioners shall be named in
the caption of respondents. See: Fla.R.App.P., Rule
9.100{e)(I). The judge or the lower tribunal 'is a formal
party to the petition for mandamus and must be named as
such in the body of the petition (but not in the caption).
See: Rule9.100{eX2).
. Moreover. the caption shall contain a statement that the
petition is filed pursuant to that subdivision. Likewise, the
petition must be served on all parties, including any judge
or lower 'tribunal who is a formal party in the petition. The
original is filed with the DCA. In addition, the petition
shall not exceed SO page limit.
Rule 9.100(g) aJso provides that the petition shall
contain the following:

In a criminal case, the appendix would be made of the
initial motion or petition filed. See: Fla.R.App.P. 9.220 for
more information on the appendix. The appendix does not
count to\yards the SO page limit as discussed above.
Thereafter, the DCA will review the peti~ion and, if
found to have merit, it will issue a show cause order for
the opposing party to respond within a time set by the
court.
After the opposing party has filed a response, the
petitioner has 20 days, from the date in which opposing
party filed his response, to file a reply if he wishes to tile
.one. A reply in this proceeding is optional. However,
should one be filed, it shall not exceed IS pages in length
and a supplemental appendix can be filed along with the
reply. The DCA will issue a ruling within a reasonable
time after.
I hope this information may be useful for prisoners that
may, ·at one point or another, be fa~ed with this same
predicament. _ '

Reversed and released from prison
Since 1989. there have been 208
post-conviction DNA exonerations in the United States. Highest

percentage ofthose exonerated.

by race/ethnidty:

.

,

: ..~.:-: ..,.:.:.:".:".

~.~. :·:.::~:i;t;:~~,

~~~~~~"~;

(1) the basis for invoking thejurisdiciion ofthe court;
(2) the facts on which the petitioner relies,'

(3) the nature ofthe reliefsought,' and
argument in support of the petition and appropriate
citations ofauthority.
(4)

Similarly, in a petition of this nature, the petition shall
be accompanied by an appendix. as presctibed by Rule
9.220, and the petition shall contain references to ihe
appropriate pages of the supporting appendix.
If the petition is filed in a civil case, the appendix will
consist.of the notice making the lower court aware of the
pe\lding action, notice of hearing (which can be made in
one motion), and a copy of the initial motion or petition
20 filed inthe lower court and any response thereto.

BECOME A MEMBER

Florida Prison Legal Perspectives

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, IN AND FOR
.:'
LEON COUNTY, FLORIDA
MICHAEL TWEEDY, #910577,'
Plaintiff,
Case No. 200S'CA 001508

vs.
JAMES MCDONOUGH, Secretary for
the Florida Department of Corrections,
Defendant.

-------------_---:r
AFFIDAVIT OF JAMES UPCHURCH
STATE OF FLORIDA )
COUNTY OF LEON , )
,
I, James Upchurch, am the Bureau Chief of Security Operations for the Florida
Department of Corrections. As Bureau Chief, my duties and responsibilities include oversight on
all security matters within the department.. I have been employed in the field of corrections since
1968 and have worked in all areas involving the custody and control of inmates. I give this
affidavit in connection with the above-styled case.
1. Private institutions may sell in their canteens items that are not sold inlhe
Department's institutions or sell brands of items different than the brands sold in the
Department's canteens. It has been the Department of Corrections's practice to consider as
contraband an item of property a prisoner possesses while incarcerated at one of the
Department's institutions that the prisoner purchased at a private correctional facility that is of a
different brand than the same item sold in the Department's canteens. Prisoners possessing'
"specialty" items that other prisoners ma~ not possess cr~ates security concerns.
2. However, the Department has· reconsidered this practice and no longer will consider an
item ofpr.operty purchased at a private institution contraband solely because it is a'different
brand than 'the same item sold in the Department's canteens.
.
3.. Because of this modification in the Department's practice, Inmate Tweedy's tennis
shoes, headphones, and cigars will be returned to him. In his complaint Inmate Tweedy states
that he purchased another pair of tennis shoes, and he wants special permission to possess two
pairs of tennis shoes. The Department's rules authorize an inmate to possess only one pair of
athletic shoes. Therefore, Inmate Tweedy may not possess two pairs of athletic shoes at one
time. However, the institution will store one pair of his athletic shoes for him, and he may
possess that pair of shoes when the pair he currently possesses is no longer serviceable or
21

Florida Prison Legal Perspectives

otherwise discarded or sent out of the institution.
4. Imnate Tweedy's plastic. bowls will not·be returned to. him as they are contraband in·the
Department's institutions. Plastic bowls are not sold in the Department's canteens and are not
authorized on the Department's property list. Plastic bowls were previously approved items prior
to January I, 1996. Under the Department's rules, inmates who purchased and possesse~ plastic
bowls prior to January I, 1996, are allowed to keep those bowls until they are no longer .
serviceable. However, Inmate.Tweedy was not in the Department's custody until 1998, and he
states in his complaint that he purchased the bowls while incarcerated at South Bay Correctional
Institution, a private facility, and he was ftrst incarcerated at South Bay in 2003. Therefore,
Inmate Tweedy 9id not purchase and possess his bowls prior to January I, 1996, and,
accordingly, his bowls are contraband, and he may not possess the bowls.·
S. The information contained in the foregoing'affidavit is personally known to me and is
true and correct to the best of my lcnowledge. I am over the age of 18 and otherwise competent
to testify to such were I called upon to do so in a court of law.

FURTHER AFFIANT SAYETH NAUGHT

The foregoing instrument was sworn .to and subscribed
.before me this 11-\-b day of July, 2006
..
by Jam~s R. Upchurch, who is personally known to me.

f!k.H1J~

No~~
My Commission Expires:

,

-"-;;

NOTARY PUBUC·STATE OF FLORIDA

!t

Mary W. I.e

Commission fJ D0460166
~lres: AUG. 09. 2009

Bon ad 'fM4 ~~1IIl8e Dentlnll Co" Inc.

22

Editor's Note: This document was
filed in a Repleyin action. Mr. Tweedy
prevailed in the case and recovered his
costs in. filing the action.

Florida

Priso~

Legal Perspectives

Florida Prisoners' Legal Aid Organization Inc.

BECOME. A MEMBER

I

YES! I wish to become a member ofFlorida
Prisoners) Legal Aid Organization) Inc.
3. Your Name and Address (pLeASE PRINT)

t. Please Check ,/ One:
Ci

Membership Renewal

C]

New Membership

_ _ _ _ _ _ _ _ _ _ _ _DC#

_

Name

AgencylLibrmyllnstitution IOrgj
2, Select./ Category

Address

tl $15 Family/AdvocatelIndividual

o

$10 Prisoner
City

State .

Zip

!J $30 AttomeysIProfessionals

• a

Email Address and for Phone Number

$60 Gov't AgenciesILibrarieslOrgsJete.

~ t'lell~t: m3k~ ai: ':'II:::k£ ,:r money orders payuhl: t.: ~io~ida Prisoners' Legal Aid Org.. Inc. Please complete uic above rOml and s.:"o il 3lOP.g ·.\d:
'l~ i:ldi':;llcd memoershlp ducs 10: FPl.AO. Inc.. P.O. 30-: 1511. Christmas FL 32709-1511. For family members or loved olle:\ of Florida or:50llcrs
.1\(\ ,l:'~ unable 10 alTord .he basic membership dues. any wntribulion is·accePl&~lc fer membership. Memberships run one year. II' you wO:J1J iike tu
• 'nake:l donatiol~ t,· FPLAO. Inc.. to help the organizalion continue its work for prisoners and their famili.:s. send donalions in UI:~ !IIn:l~!h [0 ih:
.';:~I:e ;\dJr-:s~. :·h~.:k YOCI.\l1

members receIve FloridcJ Prisor.[.egaIPerspeclilll!s.

EXPERIENCED CRIMINAL DEFENSE ATIORNBY
AVAILABLE FOR STATE AND. FEDERAL .
POST-CONVICTION MA'ITERS.
• Admitted to the Florida Bar in .1973
.• Over thirty years experience in the practice of ~minalla~
• Providing representation in Direct APpeals, Belated Ap~818;
3.850 lI)otions, 3.800 motions, 2255 motions, State arid Federal
Habeas Corpus ~etitions, Detainer Issues,
and other Posteonvietion Matters.
Inquiries to:

Law OJJkes of
'Danie('D• .1tfazar •
• 2J53 Lee -Roalf

'Winter 'Pari, :1£ 32789

-ref

'rolf:free
J-888-645-5352
. 're~ (407) 645~5352 .
:1ax:.(4Q7)645~3224'

.

.

I

~ b..ed .old, apoII aclWIrU._at..
quaUUcatiou ad .~ri.~.
.

fte bidlli of a lavyu 11. ~ 1IIportint ctec1l1on tbat .hould not

•

YOlI~. . . II:

u. to ..nd you free information a!Io1It

oq~

IIIIiIllli""""·~

..ron
. . ,.,..,:,: . .
.";,,

'2.3

PRISON LEGAL NEWS

SUBMISSION OF MATERIAL TO

FPLP
Because of the large volume of mail being
received. fintlftcial cOnsiderations. and the
inabUity to provide individuallcgal assistance.
members should not send copies of Iep!
documents of pending CU' potential- cascs to
FPLP wi1hout having first contae:ted the staff
and R:Ceiving directions to send same. Neither
FPLP. nor its staff. nrc responsible for any
unsolicited material sent.
Members are requested to continue sending
news information. newspaper clippinas (please
indude - name

of

pnper

and

dale).

manonmdums., phou)copics-of fmal. decisions

in unpublished cases. andpote:ntial anic:tes for
publication. Please send only copies of such
material that 40 not have to be returned. FPLP
depends on YOU. its readers and members to
keep informed. Thank you for yow
coopenuicn l1I1d pBlti~lpalion in helping to get
the news out Your efTorU are greatly
apprcciDled.

Primn Ugdl/kttl is a 48 p1IF moaddy ~
~ich 1m bc:ea publisbed since 1990. Eadt issue is
paded with summaries and IOII)'Sis of RCI:ftt court

decisions &am IIOWId die' eauatry dcalias wida
prisaacr . . . Iftd wri1tal ftorn II prison«
pcnpcUi\'c. The mIpiIinc aftcn ania IIIida
ftom IIblmC)'s giving baw..m ~ 8dW::c. Also
iadIIdaI in acb issue an: DCWIIItida ~ wUb
prisoeofdat.cd Itnr8BJe ad ..msm 6mI die U.s.
and IMUDd lite wadd.
Anaal sabsafPon nfa _ Sll for prisoaas.
If yOu CIA" aft'cIrd SII at once. sead II last 59.
PLN wW pRldtC die issues It SI.50 ada tor • lis .
JIIOIdIl ~ New IDd. aaused postIBe
stImps or cmbassed CIMIapcs laY he used IS
payaIIaIl.

,

for Dlla..incaICallal ~ die
~ ale is 115. 1M!,,' III or IN'

If SO, please complete the below· information and mail it to F'PLP so
tbat the mailing list can be updated:
.

NEW ADDRESS (PLEASE PRINT CL~Y)

Name

)UI'

bllli
IpDCics.
5

(1IrDaIc)'s. .tiInria.
paltiiWOid
cqIftiZIItioas) a6saiptioft . . . &Ie S60

a)'al'.

A

SIrIIpk copy ofPLN is IVIiIIM: for SI. To

subscribe to PLN CIOIdICt:
Prison LcpI News
2400 NW . . ST. fll48

SeauIc. WA 98117
. (2061246-1012

1I!I;r.~,~ctz

Address
City

State
'U'1M II

~

ft

• FPLP

to.

Zip

p.o. Box 1511

• . Christmas. FL 3270S.1511

(0ntaI1CIClqICCld by ptIaae or 0Idine)

VOLUME 13' ISSUE 5 6

Florida Prison Legal

SEPTJDEC 2007

PerSpectives

NONPROFIT
U.S.

P.O. Box 1511

. POSTAGE
PAID

Christmas. FL 32709-1511

MIDFL.FL
PERMIT NO.
65C6S