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Florida Prison Legal ISSN# I091-8094 VOLUME 6,ISSUE I JANUARV-FEBRUARV 2000 LEGISLATORS COMPLAIN ABOUT FDOC When Michael Moore came from Carolinn 10 take over as the secretary of the Florida Department of Corrections he broughl Michael Wolfe with him to serve as his deputy secretary. Since Moore took over the depart- ~ulh ment during January of 1999 he has strogglcd 10 rruintain his position as the depanlTlC'nl has been hil with scandal after scandal, bUI Wolfe had been able to keep a low profile that whole time - until No\'cmber lhat is. On Nov. 16 state representlltive Allen Trovillion con finned that he went 10 Gov. Jcb Bush with complaints about Ihe on-the-job-behavior of Wolfe. Trovillion said Ihal he told Bush that FDOC deputy secretary Michael Wolfe is ubrnsive and "offensive." Rep. Trovillion. a Winter ,Park Republican, who chairs the 1·louse correclions commillee, said, "We've had 3 lot of complaints; he's (Wolfe) very harsh in the way he operates. His method of dealing with people is so offensive its affecled morale in the depanmenl." Trovillion would nOI e1aboralc on his complaint to Bush, saying only that he has reccivcd complaints from Olher FDOC employees about Wolfe, some of who dcscribed him as Moore's "hatchet man." Trovillion did say hc has namcd Wolfe about his behavior on several "occasions," before finally going to the governor and House Speaker John Thrasher aboul him. FDOC spokesman CJ. Drake said no onl) in the department had prior knowledge 'about Trovillion's complaints. Wolfe had no comments: he has a policy of not speaking to the me· dia. FDOC officials claim to be bewildered why Trovillion has takcn such an adverse position to Moore and his administration, espedally when Moore is a fellow republican-who was appoinled. by n republican governor..Trovillion has been an outspoken critic of Moore, claiming he is not doing enough to protect prisoners and summoning him be· fore Ihe corrections commillee callier in 1999.to answer queslions about lhc opcration of Ihe departmenl. ·'I'm not Irying to run the dcpartment. bUI as chainnan of the corrections comminee it's my responsibility 10 be aware and 10 help develop the best department we can," Trovillion said. This was not the fir.;t time Trovillion had wen! to Gov. Bush complaining about the DOC. In May '99 h-= and L:my Kennedy. an Orlando management consultant, met with Bush's legal counsel to discuss \\'hat Kennedy called "serious matters of mismanagement. negligence and corruption: within Ihe department. They were lold the Florida Depanment of Law Enfortement was already investigating contraci problems that prtdate Moore taking over the department. Approximately lwo weeks after Rep. Trovillion's recent complainls about Michael Wolfe olher legislators wefl~ raising new eomp\aints. Michael Moore came under criticism from both republiCan and democral legislators on Dec: 7. They accused Moore of mul.zling DOC empto)'ees. and making sweeping changes without informing the legislature. Rep. AI Lawson, Tallahassee, complained Ihat under Moore's direction a North Florida prison was closed Ihis past· summer wilhom alerting him or local officials. Lawson said Moore al$) "muzzled'· his employees 10 keep FROM THE EDITOR CREATING A BOII..:ERPLATE DEFENSE FOOC DEMOTIONS I VIDEO VISITING AT TWO FEMAL~ PRISONS PRISONER BEATEN AT FSP FILES SUIT FDOC CORRECTIONS CAPTAIN ARRE,STED CENSORING ATTEMPT QUICKLY OVERTURl'lED ATTENTION PAROLE ELIGIBLE INMATES NOTABLE CASES 2 2 4 4 5 5 6 • 10 them from talking about the closing before it occurred. Another republican lawmllker, Rep. George Crady. whose district includes severnl large prisons, said that corrections employees have been contacting his office saying they are afraid to publicly criticize how the department is being operated. A spokesman for Gov. Bush, how· ever, said Bush will continue to stand by Michael Moore and has confidence in the job Ite is doing as DOC secretary. [Sources: Miami 12/8199 1. Herald, 11117/99; FROM THE EDITOR: A fel\' months ago I mentioned in FPI.P that a reorgllni:wtion of this newsleller and its parent organization, Florida Prisons' Legal Aid Organization, Inc. (FPLAO), was being considered by the board of directors. Thnt reorgnnization would mean going 10 a membership-based organization, with newsleller subscriptions one of the benefits of membership. During December, the board of directors voted unanimously 10 go to a membership--based orgnnization. In order 10 simplify this change. all current subscribers to FPLP nre now listed as members of Florida Prisoners' Lega\ I\id Organization, Inc. Memberships will run on a yearly basis and will be available [0 all [hose interested in participating in and advancing Ihe goals of [he organization and ils members. The primary goal of the organi7.Iltion will continue to be addressing and advocating issues that IIrfect Florida prisoners and their families, friends and loved ones. This reorganization makes FPLAO Ihe largest membership-based, grassroolS- supported nonprofit organization in Florida concerned with prisoner and family advocacy. It also means members will share more direclly in the projects laken on, and in Ihe growth and effectiveness of tile organization. In coming months. members will see addirional changes designed to form [he organization into a more cohesive network of prisoners. their fhmiJies and friends, attorneys. students. media representatives, and other advocntes for responsible and accountable criminal justice and corrections reforms in Florida. I'd also like to remind everyone that on April 12,2000, the 3rd Annual Capilol Rotunda Rally will be held in Tallahassee, inside tbe Capitol Building. This event provides ihe oppor1unity for Florida prisoners' families, friends and advocates to come together, meet one nnother, and pre· sem a unified voice to slate lawmakers. I encourage all prisoners 10 hove their family member and friends attend this importnnt event. And I'd like to thank Mike, Mark, Joe. Oscar, Ney, Jesse, Charles, Greg and Rayl for no[ hesitating to fill the breach when prison officials attempted to muzzle my voice recently. You proved the old adage: When the going gets lough, the tough gets going. Thanks guys! You obviously realize the importance of slicking, and working, together. That's it for now. I hope everyone finds the information in this issue as illlereSling as I did. All members are encouraged to inform others about FPLAO and get them to sign up as members. The more of us there are. the more that can be done. And I know you want to see your organi7.ntion grow. - BOB POSEY. CREATING A BOILERPLATE DEFENSE "Ifyou don't like it, file a grievance!" How may times have you liS a prisoner in Florida heard that from a gUllrd, a ranking officer, or even a classification officer, assistant warden or warden? It's kind of a Stock response anytime you question something yOll feel is wrong, huh? Both they and you know the grievance procedure rarely resulls in a favorable oUlcome for prisoners. More often when you attempt to complain about a DOC employee's wrongful actions. whatever they may be, your response will be, "the officer denies your allegations, therefore your grievance is denied." Essentially. lhe term "file a grievance" has become a joke in Florida's prisons; confidence in Ihe grievance system among prisoners is at an all·time low, while prison SlafT often retalinte with impunity against those prisoners auda(Co",lmled 011 paKe 4) F.P.L.P. VOLUME 6, ISSUE 1 FLORIDA PRISON LEGAL PERSPECTIVES POBox 660-387 Chuluota, Florida 32766 Publishing Division of: rl,olUDA 'MISOHIlII,lGAt AlII o.r...,....... TIO'l. A I.~C. SOt(c}(3) Non Profit Oq:aniutjOfl (407) 568.Q200 Web: hnpJlmembcrs.aol.o:omlfplplfplp.hlllll FI'L,\O DlRECTOIlS TERESA BURNS BOB I'OSEY DARRYL McGLAMIlY DAVID W. BAUER. £Sq. TERESA BURNS BOB f'OSEY Layout Editor JOlIN OAKS ROlllarch SHERRl JOHNSON BRIAN 1I.10RRlS Admin. Aull. LISA fJ\ULKNER TRAer ROSE PublllhClr Edllor fPU' ADVISOlt\' BOARD Wll.LJAM VANl'OYCI\ PHIll? BAGLEY· SHARON SIMMONS TERRY VAUGHN· MICHAEL LAMI1R\X ALAN J. COnON· JAMES QUIGLEY JAMES TA YI-OR· JUDlF.lllGlITOWER CARL WELLS· GLENN SMITH MARK SIlERWOOD· EARN HOWARD UNOA GOTTlIEB. SUS,\NNF. M MANNINO JANE PRATI. PAUl. AOAMS I\IMlJERI. Y I'EOI'I.ES· OSCAR IIANSON JMtES "WOR. ENRIQUE DIAl FLORIDA PRISON lEGAl. PERSPECTIVES ,s puhlished bi·monthly by Florida Prisoners upl Aid OrpnizallOI\, Inc. 15232 E Colonial Or•• Orlando. FI 32826. Malhng AddlOS FPLAO. POBox 660- 387. ChullK)~. F1. 32166. FPL? IS a Non Profit pubheallon fOCUSing 00 Ihe Flonda pmoo and crlmmJl JllslIce systems wllh !he SOIl of 1'fO"idms a vehicle for news. infllrmllltflfl and rCSOtlrees arr.~(I;llg prlJonefS. It.:U fumllltS, fnmel! and lo\"i!d ones. and the general pubhc of FlOf,da and tbc us Reduction of mme and recidl\"lsm. m:untcn:lIlCe of rilmily lies. ei'll IIlkts, improving condilions of confincmcm and oppotTuMilies. promoting skilled ~ou" a,""" fOf pI1$llllCrs. and promollng ac::ountablhl)' of plUon oft"ocials, are all IS$UCS FPLP is desIgned to addrnJ FPl.l"s /lOII-Illiomey valuntee' ~lafT cannol respond 10 requests ror legal 3d~l.e Due 10 '"fIlunll' of mait and 5tafT hmltalions all rorresponclencc ~annot be lespond.ed 10. bUI all mall does reccl\'e ,ndi"ld1l31 al1rnllfln l'ermission it ifllIlted to rqlrlnl m:Iltnlll In FrL!' pro,ided FrI.P and any IndlCllted author all:' idenlified;n tilt ~print NOTte.: The Inronna!Jon on Ih,s pubhcaflon pro~lda 1lC\\~ and Gpinicm flom VlflOUS. sources :lIld may not provide 5ufficient information to deal WIth ~ lcgnt prGblem. NCliber the publisber nor S\lll[ \\'lfmnts Of rql~ts tile ~ultablhly ofth~ mfomllllion In pubheallllll for mstllutmg al1Y lep acllon An atlomey Of Olhel knoll1edgcablc ptll/)llln .I. dlSl'Uled .I.l\'a should be consulted for expenmcc In legal alcu. This publlClllion should ll11l be Iclled on lIS aUlholllauve Cllallon Ita; Page 2 Membership Form You are invited to become a member of. or renew your member.>hip in. Florida Prisoners' Legal Aid Organization. Inc. Membership benefits include a one-year subscription to the organization's popular bimonthly news!euer, Flodda Prison Legal Penpecfin!s. Contributions 10 the organization (a registered 50 1(c)(3) non profit) are /ax-deductible. Contributions will be used to organize and advance the interests of members; 10 provide a voice for Florida prisoner.> and their families. loved ones and advocates; and. to educale the public about the Florida criminal justice and prison systems. I. Please chetk one: 2. Selcel CalegOI')': o o Membcr.>hip Renewal o New Membership o o o Subscription 10 FPLP wilhoUi membership o $12 Family/Advocale/lndividual $6 Prisoner.> $25 AltomeysiProfessionals 550 Gov't agencies, libraries, organizations, corporations, elc. 3. o Your Name and Address: De# (ifappJicllble) Name I understand that FPLAO depends the generosity onts members to grow and operate effectively. Therefore, I would like to make an additional con~ribution of: Prison. Agency. Organization (if applicable) $10 525 Address City Slale ... Zip 550 S100 5250 Other Total Encloscd _ Phone Number Please make all chccks or money orders payable to: Florida Prisoners' Legal Aid Org., Inc., P. O. Box 660-387. Chuluota, FL 32016, or Florida Prison Legal Perspectives (same address). New, unused, U.S. postage stamps are acceptable from prisoners for membership contributions. For family members of prisoners unnble 10 afford the basic membership dues, any contribution is acceptable. I-IA VE YOU MOVED OR BEEN TRANSFERRED? Ifso, please complete the below information and send il to FPLP so that the mailing lisl can be updated and so you don't miss an issue. OLD ADDRESS; Name. _ 'nst·:~~~~======i~=;~===~ Address City NEW ADDRESS: StIlle Zip N~~:~~~~~~~~~~~~~~~~~~ i,•. Address City II F.P.L.P. VOLUME 6, ISSUE 1 Datcs:, State_ _Zip (PLEASE PRINT CLEARLY) _ _ Mail To: FPLP. P.O.BOX 660-387. Chuluota, FL 32766 Page 3 (COlIlmufdjrQm pagf 2) cious enough to carry Ihrough with wrinen grievances. It's no secret on the inside of the razor wire rences. It was no real surprise then, when in December. prisoners statewide were required 10 watch a three minute video with Florida Depanment or Corrections Secretary Michael Moore advising prison:rs that ir they feel they have had excessive rorce used againsl Ihem by any correctional stafT 10 "file a grievance." Perhaps Moore is 1I0t aware just how disreputable the DOC grievance syslem has become. He mllst be aware, however, that the majority or lIses or rorce against prisoners occur in the confinement units, and that potentially abused prisoners mUSI give any grkl'3»us 10 Ihe same officers (or their rellow workers), who may ha\e used the excessive force, to ror· ward to Ihe mailroom. That's similar 10 handing a lawsuit 10 someone you inlend to sue and asking them 10 take it to the counhouse to file ror )'ou, with the odds or them doing so nbout the same. or course, no prisoners who saw Moorc's video really believed it was giving advice for their benefit. No, the general consensus was that Ihe abbreviated video message reiterating Ihe DOC's rules on when rorcc is all· thorized to be used against prisoners, and advising usc or lhe g~ievallce pro· cedures when those rules arc viola lcd, was intended to serve another purpose beneficial to Moore and the belea· guered DOC. a doubt, the video will be shown 10 legislalors nnd any others who mighl question what Moore is doing to rerorm the DOC rollowing the highly publicized beating murder of prisoner Frank Valdes aI Florida Stale prison this past July by a gang or gUllrds - some of whom had documented histories of abusing prisoners. And the video might be shown to the FBI and Florida Oepanmenl or L.1w Enrorcement, ngencies that arc cllr- F.P.L.P. VOLUME 6, ISSUE 1 rently investigating widespread aile· gations or brutalization and human rights abuses in Florida's prisons. Moore can be heard now, telling legislators or FBI investigators that he personally advised nil prisoners to "file a grievance" ir they believe they have been wrongfully beaten, subjected to shock shields or stun devices delivering 50.000 volts, or had pepper spray fogged into Iheir cells from can· isters reminiscent or those pest exter· rninafOrs carry. 11 is doubtful, though, that anyone will ever see the boilerplate denials thm prisoncrs most oftcn receive on their grievances alleging excessive use of rorce. By a stroke or rOnlllle, however, we can see in the leller accompanying this anicle whllt steps the Police Benevolent Association (PBA), a union which represents many FDOC prison guards. has apparently taken to circumvent new FDOC policics. Instead or advising prison guards not to use excessivc force. an anomey for the PBA, I-Ial Johnson, advised FDOC union members to include a "boilerplate derensc" in usc or force repons so lhat guards may later change their story concerning an incident, ir videotape evidence does nOI support the first story they told. And, according to Johnson's lel1er, the FDOC tacitly approvcd this "defense in advance" thnl basically makes the new use or force policies or the DepanmeTlt meaningless. • over which Fortner had authority. Fonner will lake an approximate $7,000 salary cut wilh the demotion, going rrom S65,560 to S58,000 a year in his new position. During December a racinl slur resuhed in the demotion of Florida State Prison Major Harry Tison 10 a sergeant's position. Tison, 58, a career FDOC prison guard, was demoted on Dec. 3 ror "conduct unbe· coming," according to Fooe omcia Is. Allegedly, Tison, while lalking to two other guards abollt Assistant Wardcn AdAm Thomas, stated. "Just what we need, another niggcr on the compound." Thomas, who is blnck, stnned a1 the prison in mid-August lind supervised the work camp section of Florida State Prison. Tison admit· ted making the statement, but claimed it was just a "slip or the tongue." Tison told investigators Ihal he gre\\ up using such language nnd apologi7.cd for the slip. [Sources: PLN, 12199; 51. Pele Times. 12110/991. VIDEO VISITING AT TWO FEMALE PRISONS by Teresa Bums Sianing in February, state prison omcials in Florida will launch a ne\\ visitation program for relllalc prisoners that is designed, in pan, to stine criticism from prisoner advocacy groups, lind slate legislators, Ihat the Department of Corrections (DOC) has in the pasl erected "many impediments" making it difficult for families to visit and remain connected 10 incarcemted loved ones. This new pro· gram will allow televised visits bcmcen incarcerated mothers located in prisons in FDoe DEMOTIONS Central Florida and their children who live in the MiamilSouth Florida area. Using closed-circuit video cameras During September a rormer warden al prisons locllted in Jasper and Madison and monitors located al Lowell and Uer· was demoted to assistanl warden and nando ColTt'Ctionallnslitutions, up to 200 transferred to n different prison. Tho- women prisoners, who otherwise might mas Fonner was found [0 have cre· not be able to visit wilh their children because of Ihe distance involved, will be aled n hostile work environment connected to a similar set-up IOCllted in through a pattern of having indiscreet Miami where their children will be able afTnirs with female prison employees 10 see, hear and lalk live with their moms. Page 4 This new project is one more step by !he DOC to address the fact that while most of the ],500 female prisoners in Florida are aclually from South Florida. most female prisons have been located in Nonh and Cenlral Florida. The lravel distances involved have made it impossible for many families to visit and has made it especially hard for incarcerated mothers to mainlain close ties with their children. \Vi!hin the last few momhs the DOC finally converted a South Florida men's prison near Miami 10 a woman's prison specifically to address that problem. The DOC furnished S385.734 and gOi a S300,000 federal gram to fund the video·visiting program. Priority will go 10 poorer families who cannot afford the tmvel involved ill long distance visiting. AlIioncellFP-South, formerly the Alliance for Media Arts. a nonprofit group that promotes independem filmmaking. will provide the offices and equipment in Miami where the children will go to participate. Nadine Anderson, execuli\'e director of Families \Vi!h Loved ones In Prison, expressed concern that if successful video visiting may replace regular contact visits for all prisoners. DOC officials denied that would ever occur. "We would not do thar," said Richard Nimer, director of program services for the DOC. "Nothing takes [he place of a personal visit and that \\ouldn't be our intent by any stretch of the imaginmion." While Florida Prisoners' Legal Aid OrganiZlltion (FPLAO) directors were among those pushing for some type of relief for women prisoners in their visiting situation over the past three years, there arc some reservat ions with the planned video visiting progrom. There is concern over who will select which women prisoners will participate in the program and whether there will be a "hidden" criIcria for participation attached for \\'omen prisoners. There is also concern over the DOC's announced intent that the visits will be for one hour each and will consist of the moms reading books to their children. While literacy is a laudable goal, such a regimcntcd rcstriction may do linle as far as main· taining a family relationship when F.P.L.P. VOLUME 6, ISSUE 1 such a short period for the visit is allowed to begin with. And it is ironic that literacy will be such a concern for the DOC in the video visits when the DOC slill has not complied with the 1999 legislative mandate that equipment and supplies be provided in the regular visiting parks to help keep vis· iting children occupied. FPLAO staff will be pushing for thai compliance Ihis year. • PRISONER BEATEN AT FSP FILES SUIT JACKSONVILLE - On Nov. 9, that struggle with guards his jaw was broke, but he remained in solitary confinement for nine days, his complaints ignored by guards, and medical staff. It wasn't until July 19, when Florida Department of Law Enforcement agents descended on FSP to investigate Frank Valdes' murder, that Mathews finally was given medical treatment He underwent jaw surgery at Shands Hospilal in Gainesville where a metal plate had to be embedded in his face ro repair his shancredjaw. Mathew's lawsuit also claims thol FSP Warden James Crosby, prison inspector Tim Gicbcrg, prison dentist James Posten and other prison staff and medical personnel knew what had hap· pened to him and became pan of a conspiracy to cover up lhe guards' actions. After being taken out of FSP Mathews was subsequently sent to the Nonh Florida Receprjon Cenler, then to Union CI, Bnker CI and Columbia CI. In an interview with an FPLP staff member at Columbia CI. Mathews said that he was threatened by guards with being killed if he talked after Fronk Valdes was killed. He stated that he had been threatened (II Union. Baker and Columbia Cis. /-Ie also staled thai he had been refused food for se\eral days after being beat at FSP. On August 25 Mllthews and the four other Hamihon CI prisoners were each charged with aggravated bauery on a law enforcement officer and five counts of ballery on n law enforcement officer. In the lawsuit filed by Mathews he seeks actual and punitive damages. Guy Rubin said other prisoners who have been beaten at FSP may be added to the suit. fanner Florida State Prison (FSP) prisoner Willie Mathews filcd a federal lawsuit claiming his civil rights were violated when he was beaten and had his jaw broke by FSP guards. The suit, represented by attorney Guy Rubins, says 21 prison employees either participated in or were witnesses to the six days of beatings that Mathews suffered on the now infa· mous "X-Wing" at FSP, the same wing where death row prisoner Frank Valdes was beat 10 death by guards on July 17, 1999. Thc lawsuit alleges, in part, that Valdes was beaten to death because of his complai nls about Mathews and four other Hamilton Correctional Institution (CI) prisoners being systematically beatcn and abuscd by guards and then denied medical care for the injuries they suffered. Mathews was one of five prisoners sent to FSP on July 4, 1999, from Hamilton CI, where they were accused of assaulting six guards the day before. One female guard involved in the disturbance at Hamilton allegedly had a miscarriage a \\eek later. That is when prison guards at FSP went ber- (Source: Gainesville Sun, 8/27/99; serk. Tampa Tribune, 11111/99; Willie Mathew's lawsuit claims Ihat on Mathews] • July 10, several FSP guards handcuffed him, put a pillowcase over his FDOC CORRECTIONS head, tied a rope around his neck. and CAPTAIN ARRESTED knocked and dragged him down a staircase. Mathews claims thm during A Florida Department of Corree- Page 5 tions (FOOC) captain was arrested by Floridll City police on 11/17/99 for allegedly assaulting his girlfriend - a Florida City police officer. According to police reports, Darryl J. Hall, 38, a captain at the South Florida Reception Cellter, was charged with battery on a lawen· forcement officer and burglary into an occupied motor vehicle aner hitting his former police officer girlfriend, Nivia Cordero, 28, when she was on duty in her police car. Allegedly Hall and Cordero had been in a six-year relationship. On Nov. 7, Hall approached Cordero's patrol car parkeclat a \Val-Mart where Cordero was talking to a male friend. Police say Hall got angry and punched Cordero in the face through the open car window. Florida City Deputy Chief Juan Santos said Hall is responsible for thousands of prisoners at the South Florida prison. The FOOC had no comment on the incident. {Source: Miami Herald, 11/18/99]. NEW HAMPSHIRE DOC CUTS PRISON PHONE RATES Seven months after NH prisoner Michael Guglielmo threatened to sue the NH Department of Corrections over excessive phone rates being charged prisoners find their families and "friends, who lIccept collect calls from prisoners, the state began rene· gotiating its prison telephone contmcts with Sprint and WoridCom tele· phone companies. Guglielmo started his intended action by filing a public records request to obtain the phone contracts between the NH DOC and the phone companies that show the amount of commission that the DOC was rcceiv· ing back on every dollar collccted by the phone companies. Thosc contracts showed that in 1997 Sprint had kicked-back 35 percent and WorldCom 40 percent of everything they made off prisoners' families and F.P.L.P. VOLUME 6, ISSUE 1 friends to the DOC. In July 1999 a new contmct was approved Ihat will reduce Ihe initial surcharge on out-of-state calls from $3.28 down to $1.50, and the per min· ute rate will be reduced from 55 cents down to 20 cents, the same as regular citizens pay for colieci calls from pay phones in NH. [Source: Concord A'lonitor, 7/23/99] • CENSORING ATTEMPT QUICKLY OVERTURNED reason for censorship was that simply reading the article might cause Florida prisoners to become violent and/or otherwise cause security problems. Esquire Edilor-in-Chief David Granger was quoted as saying; "I was struck that they would think our piece so powerful it could cause problems." He said he didn't think the piece would actually spur prisoners to violence just because it reports guards in another prison system abused inmates. "It has nothing to do with Florida prisons," said Granger. The attempt to censor fhe magazine carne during the midst of the shakeup the department is going through concerning the murder of death row prisoner Frank Valdes at Florida State Prison on July 17th by prison guards, a subsequent investigation by the FBI into abuse throughout lhe FDOC, and intcnse scruliny and question. ing of the FDOC by state legislators. It was initially felt by some mainstream news reporters that the magazine rejection was prompted by thc problems the depart· ment is having. A spokesman for Ih~ FDOC, c.1. Drake, after speaking with Warden Honsted, stated that did nOt appear to be the case. One thing Ihat is clear, lhe FDOC immediately moved (0 convene lhe literature rcvicw commillce, which found that the magazine was admissible, and would not be rejected lhe next day after the first newspaper article appeared aboul the censorship. C.J. Drake Slaled following lhnt decision that the committee members did· n't find the article paniculnrly innammn· tory. This was perhnps the quickest ~view of a publication rejection that Ihe FOOC has ever performed. Prisoners report that normally when prison officials allempl fO refuse delivery of a publication to them lhal if may take a month or two to gel a final decision from the review comminee in Tallahassee. During August prison officials at North Florida Reception Center in Lake Butler, Florida, attempted to censor the September issue of Esquire magazine as it allegedly contained an anide thm was "dangerously inflammato!)'." The article, "The Making of Bonecrusher," by Richard Stratton, told the story of a brutal prison guard at Corcoran State Prison in California. The guard, Roscoe "Bonecrusher" Pondexter, gave his account in the article of how he lind other guards brutally abused prisoners and forced them to fight "gladiator" style in confinement unit exercise areas, how bets would be placed on the outcome of the fights, and how numerous prisoners were shot and killed by guards during the staged figllls. The decision to prevent Florida prisoners from reading the September issue of Esquire was made by a single warden, Robert Honsted, of the North Florida Reception Center. When Esquire received a notice that the issue was being rejected they alerted news organizations, which picked up on the story. Once severn I newspapers in Florida reported on thc censorship, the Florida Department Of Correc· [Sources: Miami flerald, 8125: Gail1l!svlfle tions (FDOC) quickly moved 10 announce that the rejection would be (Col1/lnurd on pap 8) taken before the department's Literature Review Committee in TallahasWeb I'age Addrc.u: see for a final decision. hllp:Iln1ClllbcfI.aol.comJfplplf'lltl.hlml The implication of Warden HonE-mail Addren: fplp@aol.rom Trlqlhont: (407) 568·0200 sted's "dangerously inflammatory" Page 6 ~ .. ' .. -; "."- -' :. . FLORIDA POUC~jBENBVOLBNT ASSOCIATlOfl/,j.NC. To: All S,. ConectioDal Offtcer Chapter Members From: G. -Hal- Johnson, 0eDeraI Couusel Date: .November 16. 1999 Re: ltur4enI/VIIO/FDrce RlpDrtI- 'Vl4sDlqlllClll B%trtutiom anti Vses 01 Foree Asyou"I1'C. aware. the Florida Depanmem of CotrecdoDS hu Implemented a poUey which requires tbat·ceU ~oDS and uses of force (where posslbte) be vfd~. Since die Depanment bas determined officers wW DOt be permitted to review the vicJeollpe prior to the preparadon ofb1Pidemand Use of force repons. there Is a looel c1wlce your repon will Dot be rorany accurate.Thc Florida P.B.A. (and hopefo11y the Depanment) undemands these lDaccuraclesare Dot on purpose, but a matter ofJneDlOJy lapses due lathe stress of the situadOD. . ThIs matter haS been discussed with the Department. Based upon these dlscussJODS, the Florida P.B.A. suggests the foUowIDg senteDcr.I be Included In incident or use of force reports which have "been 'fIdeotaped: THIS REPORT IBFLBCTS MY BEST RECOLLECTION OF TBEINCIDENT AND MY ACTIONS DURING IT; HOWEVER, 1 RAVE NOT BAD '.l'8EOPPORTUN1TY TO VIIW TIlE" vm~APE 'OF THE INCIDINT. ANYDD'IIRENCBS BITWBN MY DBSCRIPTION TBE INCIDINT AND THE VDlEOTAPE"ARE NOTINTIN'tIQ~ALt BUT INSTEAD.REFLEC.T ALACK OF MEMORY 0., SOME DEI'AJLSOI' THE INcIDENT DUE TO THE STRESS OFTBE SITUATION. I WOULD LIKE TO RESERVE THE OPPORTUNITY TO CHANGE OR AMEND MY REPORT AFl'ERt REVJBWTBE VIDEOTAPE OFTBE INCIDENT. or TIle Florida P.B.A. understands these sentences may seeJIllODg, wmecessary and abunch . of -legalese." SdU. we BUSIest you Include themin your repon; u soon as you don,l, you'll wish you had. It's better to be safe thaD sorry. . GHJ/mkb F.P.L.P. VOLUME 6, ISSUE 1 Page 7 IConlurwdftom pa~ 6) SUfi. 8127: St. Petersburg Times, 81281. ATfENTION PAROLE ELiCIRLE INMATES There are basically four groups of inmates left in the Florida Depanmenl of COlTeetions (fDOC) that are "Parole Eligible:' The first group are those thai \1 ere sentenced prior to October la, 1983 (\\hen parole was eliminated). The second group nrc those that were sentenced for a crime prior 10 10·j·83 and were Itller paroled and then commined a new crime after 10·1·83 while Ihey were on parole on their previous conviction. This group ;s under both systems. Then there arc the eapilal life sentences with mandlltory twenty· five year senlences and this group falls into two calegories. The first are those that have completed at least t\lenly-five calendar years and the seeond arc those Ihal haven't compleled their minimum mandalOry twenly·five ~ears_ There nre currently almost 2.200 inmales that fall into the first category. These are men and women that were sentenced to prison prior to the implementation of guideline sentencing on OClober I'" 1983 and Iherefore mUSI either EOS their sen· tence or be paroled. After 10-1-83. inmates entering lhe FDOC were no longer under the authority of the Florida Pnrole Commission (FPC). There is a tremendous feeling of hopelessness among lhese "Parole Eligible" inmates. Many of them have given up hope of ever being released from prison even Ihough they have done everything lhat has betn required of them. They ha\-e paid their debt to society (e\en if e\aluated by leday's 85% standard) lhe majority of them \\ould qualify for reo lease Most of them have \ery good 10 exemplary prison records. MOSI of them arc in Ihe age group with the lowest risk for retidi\'ism. In light of the fact that inmates sentenced after October I", 1983 are being released every day Ihat have commined the same types of crimes, there is no justification for continuing to keep the majority of these inmates incar· ceraled. F.P.L.P. VOLUME 6, ISSUE 1 Granled there are a few of these inmales that arc extremely dangerous, or have such mental aberrations thllt they would nm be able 10 fit into sociely as law.abiding citizens. But Ihis is a small group. The majority ha\'e demonstrated by their institutional adjuslment that Ihey do not fall into either of these categories. I believe it is time thlll these inmates be given the chance to return to their families and their communities. J am willing to help but I cannot do il alone. I will need help. I've been \~orking on this project for several months now, and we recently held our firsl statewide meeting in Orlundo. We had inmale rami· lies, ex-ofTenders, and concerned citizens in attendancc as well as Representativc Allen Trovillion, lhe chairnmn of the correclions commiuee for the Florida Legislature. Chainnan Trovillion is very interested in the plighl of the elderly in Florida's prisons and has promised his support in our effon 10 help this group of inmates oblain their freedom. Chairman Trovillion also has a very good understanding of the fiscal consequences of keeping elderly inmales in· carcerated. The cost to incarcenlle elderly inmates (50 or older) can be three times as expensive as the co<;t to incarcerate younger inmates. It cnn cost as much as 560,000.00 II year to incarcerate this age group. There are many ways which you can help. First of all, yOIl can mnke a list of the people that you know lhnt nrc concerned and have lhem contnct us ( this will save us lime and money). Once this proposnl has been officially submitted as a member pro· ject by Ch3innan Trovillion, you can contact your represenlalive and ask him to please suppan lhis efTon. For those thaI are not in prison that would like to volunteer their lime. lalent, and or treasure. we enn use all of the resources we can that we can gel. Those of~ou that are inc..n::erated who can afford to send a financial comribulion (e\'en if it is nothing more than a stamp) should help as much as )'ou are able. And of course. evcr)one can pray. Due to lack of lime, energy and resources. we have to deal with lhis as a group problem rather than on 1I case by case basis. There is no way lhat I can personally an- swer inmate mail. It wil1take away from the time that I need to devole 10 this, so please try to understand. Besides, I am sure lhal you would ralher I devote my time to the task at hand than answer your lener. For those of you thai aren't incarcerated Ihat want to be involved, please send me your name, address. city, state. zip, home phone, work phone, e·mail and any other information that you feel would be useful. Please let me know if you have skills that you feel would be helpful in this ef· fan IF you arc sending a financial comribUlion, make your check OUI 10 Time for Freedom, Inc. and on the memo line pUl P.E.!. I'rojcct (that stands for parole eli· gible inmates). Pleasc add this project on your prayer list and remember it's needs. Bernie DeCastro Please $tnd aU th«k. mOMy orders. SlImpS along \1M a lIOle specifying r E.I project to Time For Freedom, 1m. P.O. Box 819 Ocala FI 3·U78 PRISON LEGAL NEWS ·Perhaps the most dctailed joum31 describing the de\eloprntnt of pnson law is Prison Legal Ne.... s.~ - Mllf1i I/iken. Dim:lor Prison La\~ Projcct of the Nationllll.a....)ers Guild. I'LN is II 24 page. monlhl) magvjne. published since 1990, edited b) Washington stale prisoners Paul Wright and Dan Pens Eaeh hSlle is packed wilh sumrnarie!i and anal)'sis of rccent court rulings denling .....ith prison rights, wrillen from a prisoner persfM:etivc. Also included in each issue lire news articles dcnling with prison·rcltllcd strugglc lind lIctivism from the U.S. and around the Ilorid. Annual subscriplion rnles lire SI5 for prisoners. If lOU can't afford to send SI5 at once. send al kast S7.50 and \~C will pro-fUte lour subscriplion at SI.25 per issue, I'lease send no less than S7.50 per donalion, N('oY (Unused) U.S POSt.llge siamps rna)' be uscd 15 payment For nOn-inClll'CCfUled indi~'iduals, Ihe subscription nue is S251)T InstituliOlUI subscriplions (for allomt>s. Iibrarie!. gO\ emment agCllcics. non-g()\"cmmen:t1 orgnniZlltions. elc.) arc S6Q1)r S:unplr: copics arc ll\":1illlble for S1. ConllCt: Prison Legal News PMB 148 2400 N.W. 80th SL Seallie \VA 98117 Page 8 THOMAS E. SMOLKA ATTORNEY-AT-LAW 3126 W. CARY STREET, SUITE 122 RICHMOND, VIRGINIA 23221-3504 TELEPHONE (804) 6C4044A ANNOUNCEMENT ThomasE. Smolka is proud to announce the establishment ofhis law practice in Richmond. His practice areas include: Criminal Defense Law, Appellate Criminal Law, Post-Conviction Relief; Major Civil Litigation, Inmate Administrative Law and Proceedings involving the Department of Corrections, Probation and Parole, Executive Clemency, InterstaleCompact and Institutional Transfers, Immigration Law and , Detainer Actions. Additionally, ThDmqs B, SmDlk qnd "uoclqtg located at 909 East Park Ayenue. Tqllahqssee Flqridq 3230/-2646, Telephone (85Q) 222-6400. Te1dax (asQ) 222- , 6484. will continue to provide a,fUII ranee qfCon$ultin~Seryices tq Inmqtes on Administrative. BwcUtive ClemenQ' qnd Parole Related Mquers. Subsequentto his 1975 graduation from America's oldest law school at the College of William &. Mary, Thomas E. Smolka was admitted to the Virginia State Bar and became a member ofthe National Association of Criminal Defense Lawyers. Tom's legal experience includes service as an Assistant City Attomey ofNorfolk, Virginia followed by many years in private law practice. Most importantly, Tom Smolka's direct undemanding ofthe American judiciary came when he confronted the criminal justice system, won his c1irect appeal and was exonerated. See Smolka v. State. 662 So.2d 1255 (Fla. Sill DCA 1995), rev. denied, State v. Smolka, 668 So.2d 603 (Fla. 1996). @:~ NOTABLE CASES by Sheni Johnson and Brian Moms ELEVENTII CIRCUIT I'ROV\SIONS OF nlE PLRA The: l"(lenth Cifellil COlin of Appeals answered SCICml rmponmll qUduons relalmg 10 h\O PfO\ I' sions Oflhc Pmon I.mg9110ll Reform ACl of 1996 (PLRAl TUle 42 US C kChon 1997c(1) (Supp /I 1996) prtmdcs thaI Hlnlo 3CI,on shall lit brought ~lIh Ilurllll! the pendent) Oflhls actIOn SIX of [he elel'en pbmu1Ts "CfC' relclUed from pilson Those SIX plalllll1Ts mOl"cd 10 IIlllldra.. Ihclt claims for m· Junctwe relief llhile mamtainlllg thelf' suit for d:un, Finall)', lhC' district coun gRIlled defendJnts' 12M (6) motion IfId dismIssed "lth pleJudlOl: plalmlfT James Wade's claims ror tompcnsatOf) and pllmll\C dllITUlgC5 becausc elen though Wilde \\'IS still In pnson and had CJfhaUSled all available lldminlJ'lrall~c rrmedies.. his allegauons of pll)'Sical injury \\'~re not Igcs The rnalllllrtUe judgc tltated lhe plallllllTs' mouon IS lin amendmrnl to the eomplainl and ISsued a rqJOfI and m:()fJ\mendauon to the duuict serious enough 10 satisfy the physical inJul) requrrc· ment of SC1:tion 1997c(e) Accordingly, lhe claims ""ne banm. The distnet COUll did nGl addrcu Wade's J"''' Anel KCelung the lTlIgISu.e Judge's re-eonunen- claims fOllnjunetlle md declllJ1l1of}' relIef Plalllliffi appeaIcd [0 Ute Ek',enlh ennui The E1C'o'enlh CIrCUli upheld the dlsmluaJ of those c1amlS for lRjunctlle rthef for !hose pllllntliT... 110 had been relcased from custoa) bin \'KalCd the onkr du:misslflg ....IUt prejudice the released Pllsoneu' clluTTI$ for compenwory Illd pUnl\l\"e dlll'l\lfe$, The cucun coun round erlor m the dIstrict coun's holdln& Ihat SectIon 1997*) is appliCllb\e to pnsonm "Ito h:\I'e been rcleased The clltuit eourt made II clear Ihal once !he disl/ict eourltrellttd the relcased pnson· ers' compl311ll as amcndcd, tho~e SIX plQlnlitfs beClime -fonnel pnsoners~ .. Ito had filed n complaint for mortcll11Y damages againsl cmplo)"'Cca of the GDOC for injuries su1Tered "hilt 111 custody The eircllll eoun n:hed on the ClCplCSS IM&Uage of section 1997e{e) :lid lhe definlllon of ~pnsoner Thus, SC1:IiOll 1997*) did not lflply to -former pusOIICfS- or Ihosc ",he h~Ie been rtleased from a corm:lioI'.al fBelhry because such persons an: delrl) nol -confilJCd In IJall, pnson, 01 corm:tiOnaJ fClht) - IS ~ulred b) ~ i997C{cl- The oram coun "''IS noc persuaded b) the: defend4nts- eong.rcssional Illla'll lII!Umenl because of Ihe dlslmellon made bet..em pnsoncrs and those .. ho lire not PllsonCT1 II) Scnlllon Dole and K)I The: ClltUI[ eouT1 also jorned the Sc\'enlh CirCUli In holdin& tlw section 1997C'(e) only applies 10 prisoncrs ..ho arc inellrecraled at lhe ume they seek relief, nnd IlOI 10 rl)rmer Jlf1!Onef1 .. ho sed: dllnmges ror IIljUIiCS suffcred .... hile the) "ere Inearceraled, Sec: Km \' Plll;hl/, 138 F 3d 321,323 (7th Cirl998) The eircuil coun affirmed the dIstriCt eoul\'S diSmissal of claIms b) two eattpJf1cs of pla:ntl!Ts ..110 had failed to r:xhllllSl admtnlSlBlilc remedlcs pOOl 10 blinging !heir SUll Those plllllltilTs made a valllrt[ argumenl Utat they should nor be reqUIred to exhaust lhell admllllSlratllc remedies bc<:ltusc of rUlJht) and ~ no admlnistr.lhle !rhefts ""lI1'lIiIMlle-1O plallllltr~ ~ the lnm31C Gnt',lllee Procedure does noc pro\lde ror moneuuy dJrnages lIlI"3tds plalrtlilTs see~ The eireuil COlIn raffilfJlCd lhat sectton 1997e(al Imposes a m:vwJaIOl) requlremcnl uw pllsoners «hllUll lIll al'allabll; a:lmlnistrall\'e remallel' prior II) bringing a ci\'ll tights SUII Further, lhe mClll1 coun lIe1d that thc. term ~avallable" lIS used in stellon 1997e (a) docs not mean lIt:u prisonelS must (01)' e,wusl lhcil adminislralil"e remedies if the reHefthey setk iii "al'~ilable" wilhin Ihe pdnllnlSlrallvc lIjlpllmtUS, In, Slead, lite lerm means lh~tl pnsoncr mUSl exhlUll all admllllSlr:llile remedlCS Utlll are a\'ailable befllt~ fllIIIg SUIt, rqardless oflheil adequacy, The rtm:lJlllng plalnulT Jama Wade h.ld e:\hJulled 1II1 available admlnlstratll"C rrmcdlCS Illd a1IC1Cd lhe prCSCllI The Squad ph)'$lcally hanused some pnsonels llr'Id ordered one pnSOrlCf 10 -dl) ~ha\"c" ANSWERS QUESTIONS RELATING TO TWO respect to pilson conditIons under ~1Oll 1983 of thIS 11l1e. or 11I1) 0Ihct Ftdcrul 1:1.". b) a pnSOfl(f CUllined m an) .PlI, jlll$Ol\, or Olhet rorm:tiorW fKlln) unul sud! a<!mll\istn11\( mned,a as arc anrlabk afe c..wuslcd Tllk..l2 USC 1991*)(SuJIP /I 1996) pro. Ides llial H[nlo Federal el\ r11lC11(ln rna) be brought b)" :l pllson,r confined In 3. Jill, prison or olher cOrIceltonal (aeihl). for l11cnL~1 or cmouonol mjUf} suITclcd "hilt In custody \\ithoul a prior showing of ph)1IcalrnJuty" The dl$Ull;\ colin WlIs rated \\ ilh Ille following questions OJ "kihei S!:CIIDII 1997 c(c) apphc:s to f(lffi\('f prisoncn \\110 lile a cl:um for IIlJuncs suiTm:d "hlle III cu~od), lInCf !he) mc been Iclnscd lioru lnc=1Il10n, fl) .. hcther sccttOfl 1997e(1) rrquII~ Pllscml'$ 10 ahauS! all admlll!5lraflle mnedlcs befOle lItC) bllng a fcdCf1ll law 1ICllOI1 "'IUt rcspccllo pnson condllloni. c\'en If II ..oold be fuulc for !hc p1lSO"'" 10 such ad· mUlISllBlIIC remcdlcs, and clcn Ihough thc ad· mIllISlrll\l\C r~rnedlCS lIIe 1Il1ldequlIle" (3) Ilhm lCI.:l of injury must be su,tlllncd for 1I pmoner 10 mccl tbe secllon 1997c(e) rcquircm~nt IhDt Ihe plISonel mUSI make 1I "prIOr sholllllll of phYSical InJUI) - beforc fihng SUII for -mcnutl 01 emollonal InJul) su1To:red ..hlle In CUSlod)-; and {"I the consuiUltonaht} OfsecllOrl 1997e(e) EleHn pnsooclS III the stale of Georgia brought thiS cI1l1 nghts XllOn SUit lOt darmgcs lUld Ill· JlIIlctlle rdJef agamu the pnson offiCIals of Ihc Georgll DqlartmCTIl ot COfTCC1lonS (GIX)CI The pnsonas 'alleged I'IObllOflS oflhelr FOUT1h, Eighlh.. Md Fourt~lh Amendment nghts as II resull of IlC\lOI1$ allegedl) lakcn b)' lhe prison guards dunng a prison -shlkeoo..n~, The pns· oner plalllufTs allcgcd lh~l mcmbers of the spe, cIlil lllI$On 1"lIcllcal Squad" sionned lhe pmoo on Oc{()!)(r 23, 1996 :md ordered lhC'm 10 stup n:U.cd Thc Squad pcrfotmed bolt) calli) sc:uthcs ...hlle lnmIbm oflhe OPPOSite SQ wae H scc" F.P.L.P. VOLUME 6, ISSUE 1 d_ions., the distnct Judgc for the \lidJle DisUld of Georgia dmded the plliJtuffs Ultl) fOUl elllSSCS ac- COfdIllIIO theit dlfTefCflt f~lllIl elleurnstanen. and ISSued aNling particular to each class IS follows' FllSl, lhe dlstnct court found thai plllllum Dann)' Ch3dwick, Fcdend. U.lis. l.cnlos Cook, Willie llooks, Farrell NlIllOll, and Wilhl1Jll D3lte)' had been released rrom eustoo)' As sueh, their claims ror Injunclilc relit'f wcre mOOl The court abo pled defendant!' 12jb) (6) mol.lon and dismissed .. IUt prejudice lhcsc plalnUrrs' elalms for eompen· salOl} and punni\c d3mllle5 bccsusc lhC)' did not allege In) ph)'slelll IIlJul)' In dolllg so the court reas.oned t1lllI the CllllfllS "ere barred by sed)Of\ 1997c(e)'s ph)'Sieal inJUf) fCqulrell1(nt The dlumt court adopted the mllgiSlrlle jUdge's recornmendatlOfl .. llIt onl) I sllghl modlfieauoo and held tIIal -secllon 1997c(e) IS arplreable 10 cwms of pllsoncIS llho hal"e been relcasedSecond, the dlSlTlCI COUT1 dismissed \11!houl preJudice Ihe clllims or plllinlllTs Samucl l.oc:klcllf, Alan Kilgore, and l.ero)' Langes because lhese plalnli1Ts hlld nOl )"tl uhausted all lhelr aVllllllble lldmllliSllll· me remedlcs and thus had not SlIusned the exhlustion rrqullemenl or scr;tlOf! 1997c(a) Thc dmnct COUrt also found UUll these plalnlllTs' clanns for compensatory and punlllle damages IICfe baned b) section 1997c(c) bec1USC the) did not allele lite laIulSlle ph)sleal InJllI) Third. the distnet court d'Slmued wlthoul plCjOOIl:c lhe claims of plalnlltr DI)lOII Bnnkley because he h3d fill! )'C1 c.,haustr:d all of hiS 1111llable admlllls, U'lIIII"e mnedles and Ihus hlllJ not satIsfied .sectIon 1997C'(a), Thc district couT1llso found tllal Drmk· Icy's claim fOf compensllol) and punllile damages Ilere nOl barred by s«llon 1997e(e) because he alleged Ihe requlslle pll)sical lIlJul)'" The distlici coun noted thaI before Bnnkley could bung his aCllon 10 Ihe alUn he .. ould be requIred to CllhlUSI all alllbble sdnnmSlralile remcdlcs Page 10 requisite physical injury in his complaint for com- questions presented by Wade. Further, the court did through the circuit court hoop, and the attendant pensatory and punitive damages. Wade alleged thaI not attempt to clearly define when a physical Injury bias of the Second Judicial Circuit Court, and filing the Squad made him "dry shave" which caused becomes significant for purposes of satisfYing sec- fee barrier, to challenge rules of the DOC following bleeding, inflammation, inilalion, ingrown facial tion 1997e(e). II appears that the court will treat denial of 120.54(7) rule adoption, repeal or amendfuture cases ~Illll:ase-by-e:ase basis. The most trou- ment petition, unlike any other citizen of the state. hair, Infection, purulence and pain. See: Quigley 1/. FDOC,_ _So.2d_, 24 The court evaluated Wade's claim and joined the blesome aspect of this case is the court's refUsal to Fifth Circuil in fUsing the physical injury analysis recognize a equal protection violation by the dispa- Fla.L.Wcckly, D2405-06 (Fla.lst.DCA 10120199). under section 1997e(e) with the framework sel out rate treatment of prisoners from those who are not by the Supreme Court In Hudson Y. McMllIton, 503 prisoners, especially when II comes to m\lnetary Evidentiary Hearing Required U.S. 1,9, (1992), for analyzing claims broughl under damage suits. While a free person has monetary To Resolve Mailbox Rule Claim the Eighth Amendment for cruel and unusual pun- redress for constilutional violalions, a prisoner is ishment The court concluded that in order to satisfy precluded from this same remedy. This is probably Second Judicial Circuit Judge N. Sanders section 1997e(e) the physical lnjwy must be more why constitutional violalions continue 10 plague than de minimis (triOing, minimal), but need not be prisons throughout the nation. What better way to Sauls dismissed a petition for writ of mandamus significant See: Gomez 1/. Chandler, 163 F.3d deter constitutional violations than to hit the violator challenging a DOC disciplinary action against prisoner Alfonso Detroy Ponlon. The dismissal oc921,924 (5th Cir. 1999). The court detennined that where It hurts, his wallel- oh]. curred when: Ponton failed to comply with a case Wade had nol alleged a physical il\iury that Is more management order to file an indigency affidavit and IhlIn de minimis. A "dry shave" withoul morC, is - Administrative Lawrelated papers per section 57.085, Fla. Stat. simply not the kind of "injury" that is cogniZllble Reasons for Denial of Sec, lZO,S4(7) PetiOn appeal Ponlon claimed thlIt he had timely under seclion 1997e(e). . turned the required documents over to prison offi· tions not Reviewable on Direct Appeal Because the circuit Court agreed wilh the dislrict cials to mail, but for unknown reasons they were nol court thlll Wade's injuries were nol sufficienl to by Prisoners senllo the court. meet the physical injury requirement of seelion The appeal coun reasoned that Ponton, as a 1997e(e), it was faced with his remaining contention Prisoner James Quigley (an FPLP advisor) prisoner, was entitled to the benefit of the Umailbox thai section 1997e(e) is unconstitutional as applied filed a sec. 120.54(7), Fla. Stat., petition to repeal rule". Haag v. State, 591 So.2d 614,617 (Fla. 1992) bamng his claim for compensatory and punitive damages. Wade argued that the statutory bar to DOC rule 33-3.005(9). That rule prohibits prison (Pleading deemed filed when inmate turns docuclaims not involving physical injury amounts to a official notaries from notarizing the copies of legal menl over to prison officials for processing). In the denial of due process under the Fifth Amendment documents that Florida prisoners keep for their own face of Ponton's claim that he had turned the docu· and in violation of the Equal Protection Clause un- flies. Quigley requesled in his pelition thaI the rule ments over to be mailed, the CQurt remanded for an be replaced with one that \\'Ould allow prisoners 10 evidenliary hearing to determine if that was true, der the Fourteenth Amendment. Wade contended that the application of seclion keep a notarized copy of any documents thaI prison and if so, for the circuit coun to afford Ponion an opportunity to re-fiJe the documents in accordancc 1997c{e) amounted to a due process violation be- officials might nollUize. The DOC denied Quigley's pelition, claiming with Mosiello v. Moore, 24 FlaL. Weekly 01778 cause it tailors the court'sjurisdiction·to preclude all effective remedies for a claimed constitutional vio- that the rule advanced a legitimate penological inter- (Fla.'1st DCA 7129/99), and Marquart v. Fla. Pala1ion. The court opined that had the statule pre- est in preventing prisoners from altering documents role Comm 'n, 701 So.2d 674 (FIa. 1st DCA 1997). Scc: Ponton y. Moore,_ _So.2d-, 24 cluded all effective judicial review, the statule they might have notarized. Quigley, relying on the plain language of sec. Fla.L.Weekly 02470 (Fla. 1st DCA 10129199). would then raise a constitutional question. The court continued by stating the statute merely puts a limita- 120.81 and 12Q.68, Fla. Sial, which state that pristion on a dllntll8e remedy while lcaving open 'de- oners may not seek direct review of agency action Error to Deny Rehearing Motion Where c:Il1fl1lory and injunctive remedies. The court de- under sec. 120.63 excepl when proceeding pursuant Order was Substantially Complied With to sec. 120.54(3) or (7), flied a direct appeal to the clined to further address the vexing jurisdictional DCA on the denial of his pelition 10 repeal and. questions. Prisoner John Gosman filed a petition for wril Wilde couched this same argumenl under the guise replace the rule. The DCA look Ihis opportunity to erect an- of mandamus in the circuil court challenging prison of a equal protection violation under the Fourteenlh Amendment Wade reasoned that seclion 1997e(e) other hurdle to prisoners' ability 10 challenge rules disciplinary proceedings that were subsequently dismissed because he failed to comply with a case impinged on his fundamenlal right to ac:cess the through legilimate means. In its search for it way to deny Quigley's ap- management order to file the required certificate courts. The court responded thaI section 1997e(e) does not affecl prisoners' righl ofjudicial access. It peal and bar any olher prisoners from directly ap- regarding his prison bank account and amount of only affects the remedies prisoners may seek. The pealing the denial of sec. 120.54(7) petilions, the deposits for the preceding six months. Gosman. court asserted that prisoners still retain a DCA ignored the plain language of sec. /20.81(3) upon receiving the order dismissing, filed for a reureasonably adequate opportunity" to seck relief (a). The Court focused instead on whether the DOC hearing and then filed the certificate and accounl from constitutional violations that do not involve properly handled Quigley's petition to within 30 information. The circuit court, Judge N. Sanders physical injury, because they may slill file suits for days either: (I) initiate rulemaking, (2) otherwise Sauls, however denied the motion for rehearing and cleclaratory and il\iunctive relief; prisoners just may comply with the requesled aclion, or (3) deny the Gosman appealed. petition with written reasons. Since the DOC gave On appcal (or more likely certiorari review, not recover mone1lUY damages for such claims. In sum, the circuit court AFFlRMED the district Quigley written reasons for denying his petition, it although the DCA is silent how it trealed this reo court's ruling with respect to plaintiffs Locklear, complied with the statutOI)' requirements, according view), the DCA found the circuit court erred in denying the rehearing motion when: Gosman had Kilgore, Langcs, and Brinkley. The circuil court 10theDGA. As to the merits of Quigley's claim that the substantially complied with the case mllJUlllelllCDt also AFFIRMED the district court's dismissal of plaintiff Wade's claims for compensatory and puni- rule unconstitutionally impedes prisoners' access to order by filing the required documentation. The tjve damages. but REMANDED with instructions court, the DCA determined that it would not address DCA Reversed and Remanded the case to the circuit that the district court consider Wade's claims for same as, according to its inlerpretation of the stat- court. Sec: Gosman v. Michael Moore, DOC, declaratory and injunctive relief. The clrcuil court utes, prisontrs cannot directly appeal the denial of VACATED the district court's dismissal of claims such petitions on the merits, they may only appeal So.2d-, 24 Fla.LWeekly, 02467 (Flalsl DCA for compensatOry and punitive damages for plain- whether the agency properly handled the pelition, as 10129199). tiffs Chlldwick. Harris, Cook, Hooks,' Nation, and above. The DCA concluded that the only avenue for Error to Dismiss Mandamus Dailey, and REMANDED for further proceedings judicial review of the reasons that the DOC gives in consistenl with its opinion. Ha"u, Chadwick. et al. Petition Which Shc.uld v. Gamer et al., 12 Fla. L. Weekly Fed. CI317 a written denial of sec, 120.S0(7) pelilion is to seek Have Been Treated as declaralory or other relief in the circuit court, as was (11th Cir. SCpl30,1999). Habeas Corpus done in &UI v. DOC, 684 So.2d 834 (FlaIstDCA 1996). (Commenl II is important to note that the Prisoner Corey SllUIIey filed a petition for writ This decision, then:fore, forces prisoners to go Eleventh Circuit declined to address jurisdictional F.P.L.P. VOLUME 6, ISSUE 1 Page 11 of m:utdnmus al1egmg m pall dial the gmnting of lehef would enlille him to immcdiate rclease from prlron (presumably with the reSloralion of ccrtain gam lime). StMle)' fikd that pelillon In lhe Second Jud, Cil, Coun allhough he IS In n prison IO<:31ed Wllhln Ihe Jurisdiclion ofthe !(nth Jud CII Court CirCUit JUdge Sanders Sauls dismissc:d Stanle)"s pCllllOn bceause hc flllkd 10 compl)' IIlth 1l11Spc:clfied indigene} prOI-,Slons of sec 57.085. Fla Sla\ (1997), nnd Stnnle) appealed lhul dis_ Ilus>al 'l"e appeal court delcrmined first oil" !hlll slI\ce SIMle)' alleged he was entitled 10 Immcdinte le!c:t~c from pilson lhal hll mandamul pet ilion should hale heen trealcd as 0l\C for habeas eOlpU5. for IIh!ch lhere is 110 filmg (ox os indigene) appliealion requirements per An J. Scc. 13, FI~ COnSl.. /IIld SuetI' ", S/{;/I', 7)) So.2d 1117 (Flo 41h OCA 1999), I\ddiuonall)', thc appeal coon detellnined, lhat \Ihlle the cirCUli COWl crroncousl)' dismissed lhc petilion (or a non--~pplrcllble lOdl!!ency requirement, lhc CIrCUli court sull could haw properly dismissed on Ihe grounds that as a (lk facIo) lIabe:as pclllion It sllould lIa\c be:cn I1lcd in the Circuit court wherc SIMlc)' \l'as in prison, the Tenlh Jud, Cir. Coun Ciling Sfe. 79.09, Fla. S!lli. (l997): Alday v. Smgle/o,y, 719 S02d 1260 (Fla, 1st DCA 1(98). Thus, Ihe appeal Coort Rc\clSed Md Reman.tled Slllnl(:) '5 ease 10 lhe CUCUI( coun IIlth d,reCllOilS to tnlOlfcl the petition to lhe Tcmh Jud Ci, Court CIMg /'O:....is " Fla. Parole Cllmm'lI, 697 So 2d 96S, 966 (Fin 1st lX,\ (997) Sce Slim/e)' I ,\(oo'I',_ _ SO 2d __ . 24 Fl.W D2506(FI~ 1st DCA 111(199) Abuse of lJiscrclion To 1ll5mbs Pelillon WilhoUI Opportunit), to ClInte/ Cuc ~lanlgcmcnt Ordn l)ffififncirs Whcll priroller Joseph TOOllla filed a pelllinn for II'rIl of mandamus ngalOst ~lleh3:1 Moore he also applicd 10 preccde as M indigelll per see 57 08~, Fla Stnl. (1997) HOI\C\C1, Tooma f3iled to auach a cOP) of his prisoll account Slalemem liS reqUired by Slatute Md a we managcment order Issued III the e:tSe. Oee11use of !hnl fmlurc, Second JUd Cir Coort Judge Sanders Sou', dismissed Tooma·spelll;OO TOO1na appealed and olgucd il lI"as on abuse of dlSCletlon fOI Judgc Sauls 10 ha\'c dismissed the petillon \1\thoUI provtding Tooma as opponunil) 10 CIlm'ctlhe dcficlcncy. Tllc appeal coort 3groxd "nh Tooma Md leml)' admonisllcd Judge Sauls IIhele thc appeal coun hM "pre\'iously and succinetl)' held" thlll 11U opportunity rnuSl hc plo\'idcd 10 eOIreet sueh eirOIS Marqllar/ \' Parof~ Comnrn, 701 So.2d 674 (Fla. 1st OCA 1997); .lfa.m:ffo ". MO(Jt'f', 2~ FI.W Dl 178 (Fin lSi OCA 7nfJI'J9) l"e appeal eoull Rcvemd and nem:Ulded Tooma's casc 10 thc cirCUli court. Sce. Tootnll I' .\foorr S02d--, 24 Fl.W D2506 (Fla, 1st OCA 11/(199), FL. 5,0, BlllSt) sc:e 57.085, Fla, Slat, thai were adopled JUI! three years ago 10 allegedly curb ch'll Hligtlilon by prisonCIS in stale «Iurts In lhe dictum of this opinion the high court also louehed on two problem areas lhal ha\'e plagllCd FIOfida prisoners in rttCnl ycars in u)'mg to aeecss the couns: slomge of Icgal mattllals and legal do<:umenl phOIO<:lIp)'Ulg, TIllS CM<: slarted when prisooer Douglas Jocl.:son file4 a pe1illOll for 1\111 ofmlllldamus in the Fla. S Ct s«~ing:lll order direeling lhc Dtparlment of COlTcctions (DOC) 10 puy him money for hiS work In prison Jaekron IS serving a life sentence fOI mulllple mUldelS commllted III 1991 Inuially lhe coun gramed Jackson lealc 10 pIOCttd \l'ith Ihe mandamus aelion wilhoul oost Later, hOII'el'cr, It carne to lhe eourt's nnentJon lhat Jackson had nOI fully complicd wllh lhe requllemenlS of sec, 57.085(7), Fla, Sllll., lhal plU\'ldes, In pan, lhm Indigent pnsonelS sc:eking 10 proceed m fOlTlla paupelis m a Flo/ida Court, llIld "ho hal'e t"ice m lhe preceding) ye;u'S la.~n adJudicaled Of cellificd mdlgem by a Slate Of fedellli court, muS! mcludcd m lmy new requesl for leal'c 10 pufStle a new el\'il acuon a IIslmg Md eopy of elleh prior complaint Md disposition lhereof lhat has be:cn filed h)' lhe prisoner in any eoun or adjudi~alOl)' forum in lhc prccedmg 5 )'ClllS, heks(\n had nol mCI lha! requlrcn'lenl so lhe eourt I'aealed Its ea.rller ordel on indigene)' lllld instructed Jockson lhal he could ref ile for le:we 10 pro<:«d, if he fully complied with Ihe indigcney Slntute JaekSO/1 Ie-filed for rndlgcnq' slalUS 10 proceed, liSlt'd the names of sc:\ernl couns he had lillgated In dunng lhe pasl 5 )'Clll'$, but stilled hc 1\'1\5 unablc to llIUleh thc lequlred case documentation as \l had been deSllO)'cd. ne coun held lhnl 111IS madeqUJte_ nOllng Ilia! betll'cen 1992 lllld 1998, when the InSlanl actIOn was filed, Jockson had filed IJ Iklions as llll mdigenl in the Fla. SCt alone. and since filing Ihe instMI eMe hcfore lhe court Jackson had filcd II morc eases In JUSI 111m eoun aillne The court noted lhallll ailihosc eases Jackson hod b..-en able 10 aVOid lhe requiremcnts ofsC'C 57.085, Fla Stal., but indieilled thai \\111 no longcl o<:cur. The coun lhcn enmined lhc 11I~tory be:himl Ihal smtule, ho" In 1996 lhc Fin, legislnrurc modified the mdlgcnc)' SIal utes 10 eurh ~fll\'olous lawsuits"' by pnsonelS 10 require ellhel pnrlialfiling fees and toSlS for ci\'lllillgation Mdtor liens on prisoncr"s aceounts for lhe full fees ond costs 10 bto deduetcd per a speci, fied schedule, III addltiorllo the lisllng Md proouc- lion of documentation of all cases filed dUling lhe previous 5 ycars -when s.ccklng new leavc 10 proceed as lin indigenl willi 11\'0 previous indigem adjudic/Ilions wilhin the plSl) re:ars The COU/1 de/ermmed thai lhe: lisling and plio!ocopy anaehmenl proVISion was lksignd 10 allnw courts 10 review a priSOllfr's liugatlorul hlSlOf') to see tf fli\olous pleadings had heen filed be:fore 01 "hethel the same claims had been ralscd beforc Addilionally, lhe COlln nOlcd Ihol hllvlIIg 10 comply \l'lIh lhal pro\'ISIOn '·plfSCnl litigiOUS pnsooelS wllh some procedural h~ldles~ that becomc !OlIfe '1imc--consum,:lg and COSII)''' fllf such pnsoners to continuc filing new nelions as alllnd'IlCnl Howe"cr, lhe eOUrl nOled, one drl\whacl; to that provision is thol whcn mdigcnt pllSOners hale no money 10 pay for lhc required photocopies of pasl aclions, sometimes amounling to lhousands of pages, the DOC is stili lequlrcd to rl1nl;e Ille ~OPICS thaI places n ·'uemcndous burden on lhe Ikpartment and, ultimalely, on lhe taxpa}er,- the court said Also, lhele is thc llroblent Ihn! the Departmen! mUSI provid~ nomge space for lihgious plhoners- Icgal ma!cri3ls or filec 11 potential problrm and dmwn out prcx:ecdings to delCfllllOe If the Dcpanmenl fllfoxd a prisonel to dispose of prior pleadlOgs or "hrthelthe prisoner unnecessarily disposed ofthe pleadbKS, TIlOse problems, combined Wilh llle partial pllymentfmUfIlhly dcductlOns prOVisions of lhe SIOlule, requinng lhm all filing fees llnd eosl!i of filing and serving ewil aellons uilimatel) he paid b) clen Indigenl pl1sonelS, if and "hen thcy Iccelle mone)' in Iheir pfl:;on bank tlCCOunlS, hUle unposed a huge: hurdcli on bolh th~ courts and tile Departmenl The ~ot1rt eommenlcd lha! addlllonal court ~tolT had 10 be: hired 10 handl~ Ihc I'ldmlnislllllive burden eauscd hy lhe stalule, Md palmed a PICluTe of FIn S, CI clerks wlloxling cnrts of stacks of pleadings, of "trem~ndous siu Md weigh!,'· hac\': and fnnh 10 judges' offices \llIelC indigml prisoner ha,·c had to eompl)' with the photocopy PIOI "roos of !oCt 57.085(7) Tllcn thcrc is a storagc prohlem of SlIVlOg those: files for the rceord III clleh case To ,csolle somc of the problem, lhe courl sug~eslcd thai a one-time lcduccd filing fl'C for p:tllially indlgCnl prisonclS \Iould probably ha\'c the Slmc elTecl in leduclOg fril'olous lawsuits in Ihc long run, lind leduce: lhc llCOOUnling hurden of Ihe eouns and Ihc r----'------:--"--'-------:--------------, Criminal Defense Center nO., 908 Thomasville Road Tallahassee, Floridrt 32303 We provide: Rcpresentlllion in all State and Federol Courts ldnlle"cl and Appellole level POSI COlwiclion Relic( C1cmencyfPnrole Rcview Free initinl consullnrion JIIe lire here /0 defelld you 10 lhe fllltesl ami i,lSlIre IMI Justice is done! • • • • • Lynn Alnn Thompson, Esquire. Roberl A, Rand, Esquire Indigent I'risoners' Filing Fec Statu Ie, Call it Annette Colkmirc, Pnralegal Adnlinislratil'e Nighlmllrr In a Iml)' surprising opinion, the Florida Supreme Court "sUfnuou~ly urgc[dllhe Le/llSlalure: 10 further review" lhe mdlgent prisoncr provisions of L.. F.P.L.P. VOLUME 6, ISSUEl 20 I'EARS E.,'(PERIENCEIFORMER PROSECU7VR call 850·9!l4-HELl J NOWl ' -' Page 12 [Gavlick] was qualifled for habitual felony offender sentencing is equally unavailable and flawed. The alternallve argument was thaI [Gavlick] hod a qualifying offinse within [lVe years olthe commission ofthe offense for which he was nOw being sentenced The information below upon which [Gavlick} WM being sentenced alleged the commission of the racketeering offinse between the dates of Ma;y 18. 1989 and Ma;y 2, 1996. The State argu"d that [Gavlick 'sJ qualifying offense was a burglary conviction. The obvious problem with using the burglary conviction as a habitual felony offender qualifying offense is that the burglary was committed on April 28, 1996, and the conviction for the burglary occurred on November 8, 1996. Section 775.084(1). Florida Stalutes (/995), requires that in order to be a qualifying I1li!11: felony. "[t]he ftlony for which the defendant is to be sentenced Second DCA Admonishes was committed: ... (b) within 5 years of the Statewide Prosecutor dale of convictipn of the defendant's last In the appeal of this ease. the Second priorftlony... . " Clearly, the qualifying felony must be a DCA found that James Anthony Gavlick was improperly sentenced as an habitual offender. prior felony and the defendant must have In admonishing the statewide prosecutor, the been convicted ofthe ppior felony within jive court highlights a couple of significant facts years ofthe dale nfcommission ofthe offense pertaining to habitual felony offender qualifi- for which the defendant is being sentenced. The dates alleged for the commission of the cations: We tum ... to [Gavlick's] argument that racketeering charge were from Ma;y 18. /989 he was improperly sentenced cu a habitual to Ma;y 2, 1996. The date ofconviction for the felony offender. We agree that the trial judge burglary offense which was used as a qualifyerred in so sentencing {Gavlick] and reverse ing felony was November 8. 1996. The burand remand for sentencing within the guide- glary conviction was • not prior to the lines. In doing so. we are constrained to ob- date of the commission of the offense for serve with dismay that the representative of which sentence was being imposed The burthe statewide prosecutor who was trial coun- glary offense was therefore not a qualifying sel for the State urged upon the trial judge a offense. Hall v. State. 738 So.2d 374 (Fla. 1st habitual felony offender sentence when the DCI! 1999). See: Gavlick v. State, 740 So.2d 1212 law clearly dictated that such a sentence was unavailable. Trialjudges, particularly, should (Fla. 2d DCA 1999) (emphasis supplied in be entitled to reiy upon accurate representa- opinion). tion ofthe 1m" by trial counsel. The assistant statewide prosecutor represented to the trial Prison Releasee Reoffender Act court Mo alternative bases for [Gavlick 's] Only Applies to Florida habitual felony offender sentences, neither of Correctional Facility Releases which had merit. The jirst argument preMichael Damien took an appeal to the sented was Mat [GavlicJ. 's] release from probation wilhin jive years ofthe commission of Fifth DCA from his convictions and sentences the {instanl} racketeering offense qualified as entered for the charged offenses of resisting a ."release from a prison sentence or other an officer without violence and resisting an commitment." It has 'been repeatedly and officer with violence. clearly held thot in order to sentence as a It's not uncommon for the state to overhabitual felony offender. the ftlony for which charge a criminal defendant in an effort to the defendant is being sentenced must have have something to offer toward negotiating a been committed within jive years of his· re- plea (i.e.• dropping or reducing what it knew lease from prison or other commitment and to be an exaggerated charge to begin with). not his release from probation. community Unfortunately, the criminal defendant who control or parole. See Reynolds v. State, 674 exercises the constitutional right to trial by So.2d ISO (Flo. 2d DCA 1996); Hightower v. jury often ends up being convicted of the exState 6JO So.2d 1220 (Fla. 2d DCA 1994): aggerated charge. Fortunately for Damien, in Bacon v. State, 620 So.2d 1084 (Fla. lsI. his appeal, the state conceded that· his DCA 1993); Allen v. State, 487 So.2d So.2d "continuous resistance to an attempt to effect 410 (Fla. 4th DCA 1986). his arrest will support only one count of ~ The State's alternative theory that sisting even where several 'officers are in- Department. However. the combination of problems led the court to "strenuously urge the Legislature to further review this statute in an attempt to remedy what has truly become an administrative nightmare for Florida's court system." In Douglas Jackson's particular case, the court dismissed his mandamus petition without prejudice to him to filing a new petition along with the filing fees or strict compliance with the indigenc:y statutes and held he will have to do the same in all future cases he might file. See: Jackson v. FDOC, _So.2d-, 24 FLW S549 (FIB. 11I18/99). F.P.L.P. VOLUME 6, ISSUE 1 . volved in the effon to arrest him." Subsequently, the Fifth DCA vacated the misdemeanor conviction entered for resisting an officer without violence. At issue, however, is the fact that, in this case, the state also convinced the trial ~un to over-sentence Damien. That is, on appeal, the DCA also concluded that the trail coun erred in enhancing Damien's sentence under the "Prison Releasee Reoffender Act." The "Prison Releasee ReotTender Act," codified at section 775.082. Florida Statutes (1997), provides in peninent par1: (8)(0)1. "Prison releasee reoffender" means any defendant who commits. or attempts to commit: a. Treason; b. Murder; c. Manslaughter; d. Sexual battery; e. Carjacking; r. Homo-invasion robbery; g. Robbery; h. Arson; i. Kidnapping; j. Aggravatl.~J assault; k. Aggravated battery; I. Aggravated stalking; m. Aircraft piracy; n. Unlawful throwing. placing, or discharging of a destructive device or bomb; o. Any felony that involves the use or threat of physical force or violence against an individual; p. Armed burglary: q. Burglary of an occupied structure or dwelling; or r. Any felony violation of s. 790.07, s. 800.04, s. 827.03, or s. 827.071; within 3 years of being released from a state correctional facility operated by the Depmment of Corrections or a private vendor. Damicn "was sentenced under the Act based on his release in 1995 from a Kentucky state prison." Damien argued that he did not qualify as a prison releasee reoffender because the plain language of the reoffender statute limits its application "to recent releases from incarceration with 'the Department of Corrections or a private vendor.''' Significantly, the DCA agreed with Damien's position and announced: "By qualifying the phrase 'a state correctional facility' with the phrase 'operated by the Department of Corrections or a private vendor'" (emphasis supplied in opinion), "we are constrained to hold that the language is limited to a correctional facility operated by the Department of Corrections of the State of Florida." See: Damien v. State, - So.2d -, 24 FLW D2379 (Fla. 5th DCA 10-15-99). Fifth DCA Finds Illegal 8.F.0. Sentence Timothy Summers filed a Rule 3.850 post conviction motion presenting numerous claims of ineffective assistance of counsel. \:', The trial court denied the motion on the basis' that it was both untimely and successive and an appeal was taken. On appeal, although the Fifth DCA found that the "motion was inartfully drafted to allege ineffective assistance of counsel," the CNrt also found that Summers was illegally sentenced and. therefore. enti(Continued on page 15) o ' Page 13 • POST CONVICTION ATTORNEYS :::._==~~==:;:. I -LOREN D. RHOTON I J MlC~AEL V. GIO~ANO: Attorney At J..aw . (813) 226-3138 - , - I. Attorney At Law (81'3) 69S-261'.! (813) 228-0070 • • (;) APPEALS (;) STATE POST CONVICTION (;) SENTENCE . CORRECTIONS • (;) FEDERAL PETITIONS FOR' WRIT OF HABEAS CORPUS (;) NEW TRIALS • • • . • • 412 East Madison Street Suite 1111 Tampa Florida 33602 (813) 228-0070 . (813) 2~1-2182_fax .. • he biring of u lawyer is un important decision that should nol be bYscd solely on advertisement,. Before you decide, ask us fo send you free wri«cn information about our qualifications. • F.P.L.P. VOLL!ME 6,/SSUE 1 Page 14 tied to relief. The problem arose when, on December 16, 1996, Summers was sentenced to 40 years in prison as an habitual offender for a January 1994 second degree murder with a firearm. "The second-degree murder conviction was reclassified as a .life felony based on the jury verdict finding that Mr. Summers used a firearm in the commission of the crime." In his Rule 3.850 motion. Summers alleged that his sentence was iIIeg\llly enhanced under section 775.084, Florida Statutes (the habitual offender statute), because at the time the murder was committed "life felonies were not subject to enhanced sentences under the habitual offender statute," Indeed, it was not until October I, 1995. that the legislature included life felonies as crimes for which habitual offender sentences could be imposed. In an unusually liberal, but certainly meaningful, opinion coming from the Fifth DCA, citing Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991), rev, denied, 613 So.2d 5 (Fla. I 992), the Summers Court found that: In a 3.800(a) appeal involving an habitual offender iJsue, the Second District Courl ofAppeal characterized an habilual offender sentence as being illegal i/il exceeds the enhanced statutory maximum penalty or a prior offense necessary 10 adjudicate the deftndanl as an IlGbihUll offrnder does not actually exist. ... Likewise. an habitual ofJimder sentence imposed for a felony which does not qual{fy for habitual offender treatment is Illegal because under the law the courl could not have imposed it in any circumstance. (Emphasis supplied in opinion). In Carter v. State, 704 So.2d 1068 (Fla. 5th DCA 1997). this court held that an improper habitual offender adjudicalion could not be challenged under a 1800(a) appeal unless the sentence exceeded the enhanced statutory maximum penalty. However. our Carter opinion was issued prior 10 State Y. Mancino. 714 So.2d 429 (Fla.1998). which expanded the remedy of Rule 1800(a) to include jail credit issues where an e"or is clear on the face ofthe record In Carter. this court followed former precedent which held that only a sentence that exceeds the statutory maximum may be corrected pursuant to Rule 3.800(a). However. if the supreme court allows a jail credit e"or apparent on the face ofthe record to be co"ected under Rule 1800 (a). surely an improper habitual offender classification. also apparent from -the record, could and should be remedied under Rule 3.800(a) or Rule 3.850. The case was REVERSED AND REMANDED for the trial court to resentence Summers on the second degree murder conviction. See: Summers v. State. 24 FLW 02606 (Fla. 5th DCA, 11-19-99). [Comment: There is a large body of case law decisions indicating that a "life felony" committed prior to October I, 1995, is not subject to an habitual offender enhancement. Nonetheless, I FP.L.P. VOLUME 6, ISSUE 1 found this' particular case very interesting because it was the Fifth DCA, which I often considered to be an extremely conservative court, that;found the claim cognizable in a rule 3.850', :motion. I found it even more interesting 'in light of the fact that the Fifth DCA actually reversed the case even though the motion was initially denied by the trial '~urt as being both untimely and successive. -Not long ago the Fifth DCA had, in ~y. opinion, erroneously concluded that no sentencing error should be considered "fundamental error." Maddox v. State, 708 So.2d 617 (Fla. 5th DCA 1998). Although it is still early, it is hoped that the decision entered in Summers is a true indication that the Fifth DCA is making a sincere effort to. shy away from its extremely conservative decision making process, bm] PRR Does Not Apply To Burglary or An Unoccupied Dwelling In this case, the State appealed from the trial court's decision not to sentence Stanely Huggins under the Prison Releasee Reof fender Act (PRR). Huggins. pursuant to a plea of guilty, was adjudicated guilty for the offense of burglary to an unoccupied dwelling. Prior to the trial court accepting Huggins' plea, the State moved the court to find that Huggins qualified for sentencing under the PRR. The trial court ruled that "burglary of an unoccupied dwelling was not one of the enumerated offenses, and thus, the PRR did not apply to Huggins." The court imposed a 55-month state prison tenn pursuant to the sentencing guidelines. "Had Huggins been sentenced under the PAA, the trial court would have been required to sentence him to a mandatory sentence of fifteen years...." On appeal, the Fourth DCA "was called upon to apply the principles of statulory construction." Quoting our Florida Supreme Court's decision entered in Perkins v. State, which holds: Florida Statutes (1997), modifies both structure and dwelling. That is, the DCA rejected the State's position that the PRR applies whe~er the dwelling is occllpied or not. The Huggins Court found that "(ut is not unreasonable to conclude that since the legislature did not deem that burglary of an occupied conveyance was a serious enough offense to warrant inclusion in the PRR, then burglary of an unoccupied dwelling also does not reach the threshold of warranting inclusion in the PRR." The Huggins Court held that: Due process requires that before a defendant such as Huggins can be subjected to a mandatory sentence 0/ ftfteen years. instead o/the 55-month sentence he receivedfrom the trial court, the legislature must clearly and unambiguously provide for such punishment in the PRR. If the legislature did not intend lor the word "occupied" to modify dwelling. it could have simply stated: "Burglary ofa dwelling or occupied structure. " The /ailure to .do so creates an ambiguity which is susceptible to differing constructions. Because o/the rule oflenity codified in section 775.021(/). Florida Statutes (/997) [footnote omitted], we conclude that the word "occupied" found in section 775.082(8)(a)(I)(q) modifies both structure and dwelling. Since Huggins was convicted of burglary 0/ an unoccupied dwelling. we affirm the trial court's decision to sentence Huggins to 55 months in the Department 0/ Corrections instead of the mandatory sentence 0/ fifteen years reqUired under the PRR. To the extent that its previous opinions entered in Scott v. State, 721 So.2d 1245 (Fla. 4th DCA 1998), State v. Linton. 736 So.2d 91 (Fla. 4th DCA 1999, and Wallace v. State, 738 So.2d 972 (Fla. 4th DCA 1999), conflicted with its En Bane decision entered in Huggins' case, the Fourth DCA receded from those deciOne of the most fUndamental princi- sions. The Huggins Court also certified ... ples of Florida law is that penal statutes conflict with the Second DCA's decision must be strictly construed according to entered in State v. White, 736 So.2d 123r their leller. This principle ultimately rests . (Fla. 2d DCA 1999), which relied 'in part on the due process requirement that criminal statutes must say with some precision on the decision entered in Scott.' The exactly what is prohibited Words and Fourth DCA concluded-that, in order to meanings beyond the literal language may qualify under the PRR. the burglary must not be entertained nor may vagueness be- be to an occupied structure or occupied come a reason for broadening a penal stat- dwelling. Ultimately, the DCA affirmed ute. the trial court's decision to sentence Hug576 So.2d 1310, at 1312 (Fla.1991) gins to it 55-month prison term under (citations omitted). the sentencing guidelines. See: State v.. In an En Bane decision, the DCA deterHuggins. 24 FLW D2544 (pIa. 4th DCA., mined that the word "occupied." -set out in the PRR, codified at § 775,082(8)(a)(I)(q). II-I0-99)(En Bane). Page 15 " . '- Florida Department or Corrections 2601 Blair Stone Rd. Tallahassee FL 32399-2500 (850) 488-5021 Web Site: www.dc.stntc.f1.Us Florida Correclions Commission Office of the Governor 2601 alair Stone Rd. PL 05 The Capitol Tallahassce FL 32399-0001 (850) 488-2272 Tallahassee FL 32399-2500 (850)413-9330 Fax (850)413-9141 EMnil: fcorcum@mail.dc.SlatC.n.us Web Site: www.dOSslnle.n.usJfgllslagcncleslfcc moe FAMILY OMBUDSMAN The FDOC has allegedly created n new position in me central office to llddress complnmts and provide nssis· lance to prisoner's families and fnends. Sylvia Williams IS the FDOC employee appointed as the: -farml) Ombudsl1IDI1." According to Ms. Wllllltms, "'The Ombudsman works as n medlluor bclw«n families. Inmates, Wid the depanmclll to reach Ihe most effective resolution" The FDOC Family Services Hotlme is toll·free 1-888·558-6488 moc SPA ISH IIELPLINE The FDOC has also crented a help hne to assist Spnnish-speaking CItizens obtain mformation from the depanmenl Tina Ihnton IS the FOOC emplo)cc in this po511lOn Cont.,et, 1-800.-410-4248 [plcObC Inform rPLP of you have an)' problem.s \\ith The Florida Corrections Commission is composed of eiglll citizens appoinred by the governor to oversee the Florida Departlllent of Corrections, advise the governor and legislAture on correctional issues. and promote public education about the correctional system in Florida The Commissioll holds regular meetings around the !natc which the public may attend to provide input on issues and problems affccting the correctional systcm in Florida. Pri:Wllers families and friends IIrc encournged to contact the Commission to advise them of problem arcas. The ommissioll is independent of the FDOC and is interested in public participstion and comments concerning the oversight of thc FUOC Florida Resource Organizations Floridn InSlilutionul Legal crvices IIIO-C IV 8th Ave. Gainesville FL 3260 I (3"52)955-2260 Fax: (352)955.2189 EMail: fils@afn.org Web Site: www.nfn.orgllilsl Chief Inspector Geneml 922-4637 Citilcn'~ AsSistance Admin.............. ..48S· 7146 CommIssion/Government i\ccounUlblllty to the People.. ... . 9n-6907 Office of Executive Clemency 260 I Blair tone Rd, Bldg. C. Room 229 Tallahassee FL 32399·2450 (850)488-2952 Coordinator. Janet Keels Families with Loved ones In Prison 710 Flanders Ave. Daytona Beh FL 32114 (904)254-8453 EMail: Ilip@afn.org Web Sile: www.arn.orglflip Florida Parole/Probation Commission 260 I Bloir Stone Rd., Bldg C Tallahassee FL 32399-2450 (850) 488-1655 Restorative Justice Ministry Network P.O. Box 819 Ocala. 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VOLUME 6, ISSUE 1 Fydor Dostoyevsk)' Crime and Punishment . - Page 16