Fplp Jan Feb 2006
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FLORIDA PRISON LEGAL ers ectives ISSN# 1091-8094 VOLUME 12 ISSUE 1 QeIlJP> lB[eIl!lIl em fllDf SclllllllFIlorlh Slmte JP>mlIDmeJrl by Teresa Bums Posey H ealth care for prisoners located in aU South Florida prisons was tuned over in January to .a private company that promises to save the state millions of dollars over the next ten years. The contract has drawn both praise and criticism from some lawmakers. Though if it results in substandard health care for prisoners, as some expect, the only penalty paid will be by prisoners who are disenfranchised and whose suffering can therefore be easily ignored by those who pushed for the privatization. The administration of Gov. Jeb Bush is praising the contract that puts Prison Health Care Services of Nashville, TN, in charge of providing health care to more than 14,000 prisoners at 13 South Florida prisons. It's claimed that taxpayers will be the real benefici~es, with Prison Health being able to care for prisoners much cheaper than even the Department ofCorrections could. Some legislators are concerned, in part, because the contract went to Prison Health, which had the lowest bid, tens of millions of dollars lower than its nearest rival bidders. They are concerned that the company will have to take shortcuts that could result in poor health care for prisoners and possibly create hidden costs to taxpayers in the long run from things like prisoner lawsuits. Prison Health is no stranger to claims it provides substandard care to prisoners or prisoner lawsuits. JAN/FEB 2006 "It all seems very suspect," said Sen. Frederica Wilson, D-Miarni, who· sits on legislative committees dealing with criminal justice and corrections issues. "We know the health care in the prisons already isn't what it should be. There are deaths, and there's almost an epidemic of tuberculosis and hepatitis C and HIV-AIDS. If this company is going to underbid all the others, then I fear we can only expect greater disappointment," Wilson said. On New Year's Day, Prison Health and several of its subcontractors took over the prison health care after winning the bidding war with the biggest prison health care providers in the $2 billion-a-year industry. Under the contract, the Department of Corrections (read taxpayers) will pay Prison Health $792 million over 10 years. Wexford Health· Sources, which has had the South Florida prison health-care contract since 2001, had bid $884 million to keep the contract. The third bidder, Correctional Medical Services wanted over $1 billion. Prison Health, a publicly traded company with 2S years of experience in Florida, largely providing health care in county jails, is represented in Tallahassee by an •influential lobbying finn headed by Brian Ballard, who has ties to Gov. Bush and several other Republican lawmakers. Department of Correction's Secretary lames Crosby's ties to lobbyists seeking the health care contract were scrutinized recently. [See: FPLP, Vol. 11, Iss. S and 6, pgs. 5-6, "Lobbyist Ties of FOOC Secretary Scrutinized."] Once legislators forced the Department of Corrections to change the wa~ it was trying to piecemeal FAMI1JES ADVOCATES PRISONERS ON THE INSIDE u.S. S. Ct. Considers DNA Issue•.....•..••................................3 Post Conviction Comer 12 FDOC Secretary Fired .•..•.•••.......••.•..•...............................•....14 Citizens Sue Parole Commission•.....................................•.... 16 Nota.ble Cases 20 FDOC Statistics .••........•.......•...................•.............•...............27 Florida Prison Legal Perspectives FLC)RIDA PRISON LEGAL PERSPECTIVES P.O. BOX 1511 CHRISTMAS, FLORIDA 32709 Publishing Division of:. . FLORIDA PRISONERS'· LEGAL AID ORGANIZATION, INC. E·mllil: folp@ao1.coID Website: www [olao om FPLAO'DIRECTORS Teresa Bums~Posey , Bob Posey, CLA David'W. Bauer, Esq. Loren D. Rhoton, Esq. Publisher Editor Research 'FPLPSTAFF Teresa Bums-Posey Bob Posey SherriJohnson Anthony Stuart Florida PiisonerS,;'Legil Aid: Orgilnization, Inc., P.O. Box. ISH, · Christmas, FL32709, publiShes FLORIDA PRISON, tEGAL . PBRSPECl1VES'(FPLP) up·to six times a year. WLP is a 1\\lJI,pl'Clfit pUblication focusing on the Floridaptison 8I)d criminal j\lSlice systems. FPLP provides .Ii; vehicle for news; 'infonnation, and resources affecting prisonetS, their families, fiiends, loved ones, and .the general pubti.cof Florida. Reductiimor cril11 e and recidivism, ·maintenance of famit~ des. civil right$, Improving conditions of confinement" promotbls skilled co~ access for prisoners, and promoting·.accoull~ilitY of prison officials are aU issuesFPLP Is ·designed to address. Ffl-P's nQIl·alto,me,y voluntee:r staff cannot' "fespond to rectues{s'fQf legll1advicC, DUe to the volum.e ofmall that is received and volunteer $Uiff,limltatiol'l5; all correspondence that Is :reCeived cannot bC rcsponded:lo, but all mall·will receive indivld4a1 .attention;.Perinlssloifls grariti;ll'to reprint matetijlrappearlng in FPLP" :that docs,not indicate It is CQpyrighted provlded:that FPLP, and any . ~indleated authQrare, ide"'tified In the ~print and a copy of the p~blicatlon in which the material is pUbllslted. ,is,~ provllli:d' to'the. FPLP publisher. This publicatioll' Is riot meant to: be a sub~itutc fOr -1eg8l or other professional advice. The material in FPLP should not , be "retied upon l\ll'authontative and may Not contain sufficient. information to dCl!>l·with a legal, problem. FPLP IS18utomaticatly sent. ·to l1lembeis of FPLAO. Inc.. as a membership benefit. Membership duCs for FPLAO; Inc., operate yearly and are $10 for' ..prisoners, $ISforfamlly mem~rs'lind other private indlvid~als, $30 2. for attorneys, and'$60 for.agencies. libraries, andinstltutioltS. all I out the contract, it was finally let out by competitive' bid for the entire contract, and there is no indication that Prison Health's political or insider connections led to it getting the contract. Prison Health just claims it can do the job cheaper, almost $100 million cheaper than the next lowest bid. Which should have raised a red flag. some think. Wexford officials said they were shocked that Prison Health bid for the contract at such a low amount. They suggested that the contract could be financially risky for Prison Health. Prisoners in these institutions are considered to be among the sickest in the country, disproportionately suffering from health conditions such as HIV-AIDS, hepatitis C, diabetes and hypertension, according to prison health officials. "We were really surprised they not only bid on the Florida business but bid as low as they did," said Mark Hale, executive vice president and chief operating officer of Wexford, a Pittsburg-based company. "This is truly one of the most risky contracts that any prison health company could enter into." Prison Health Services will provide basic medical treatment and phannaceutical services, as well as mentalhealth, dental and vision care under the contract. Legislators, including some who support Prison Health getting the contract, promise they will keep a close watch on its perfonnance. Prison Health will need to be watched closely it's felt, in part, because of its dismal track record. "I'm willing to give them the benefit of the doubt, "but past experience doesn't make me overly optimistic," said Sen. Dave Aronberg. D-West Palm Beach, who sits on the Senate's criminal justice committee. One might wonder if he would be willing to give the same benefit of doubt if it were his or his family's health care at risk going with the cheapest medical care. Prison Health has 110 prison health-care contracts in 37 states. It has had contracts with Volusia and Brevard counties in the past. Last year The New York Times ran an investigative report on the company that found that substandard care contributed to at least 1S prisoner deaths in 11 Florida jails since 1992. The newspaper identified numerous administrative and health-care related problems at correctional facilities under contract with Prison Health Services throughout the country. AIthough the paper's investigation questioned Prison Health's perfonnance, it found that overall it did good work and did save taxpayers money. Company officials claim many of the criticisms leveled at the company come from unproven prisoner allegations raised in lawsuits. "Inmates are one of the most litigious groups in society, and the vast majority of the suits that are filed against PHS are dismissed by the court as baseless before Florida Prison Legal Penpeetives ever going to trial,~ said Martha Harbin, a spokeswoman for ~rison Health. [Sources:' Orlando Sentinel, The New York Tunes. FDOC contract with Prison Health Services.] • us StQlremme Co_ ~ lD>~Irlltme1m IIDedhl Pt_ Cme by Joseph Wll/Jhawitz The US Supreme Court has finally agreed to review the issue' of exOnerating DNA evidence in a death penalty case involving an alleged rape and murder. The striking feature of the case,. which pits Paul House against Tennessee. is' not· that this is the first DNA-death penalty case to be heard by the Hi.Bh Court but that the state and federal court systems have allowed the matter to get this far in the judicial process in the first place. Review by, the High Court concerns a very divided US Court of Appeals in which the majority of the Sixth Cireuit declined to grant House relief despite the court's finding that he "has been sentenced to death on the basis of a set of facts that now turn out to be false in soveraIsignificant respects." Initially, however, the . conviCdon.appearCd to be'~ed on solid evidence. So much so that the Tennessee and federal courts have pcriistenily affirmed the conviction of guilt and sentence ofdeatIL . The Sixth Circuit's' opinion described what happened. . Carolyn Muncey's body was found concealed in some woods near her hOme. Serilen was found on her clothes~ Wounds on her' body indicated there had been physiCal stru8sJe, and mediCal experts testified 'that trauma to the head waS the cause, of death. Later, the victim's blOOd was. found on the blue jeans. House had been wearing on the evening' ofthe murder. , House mUst be guilty of rape and murder, right? Not necessarily•. After trial, ~NA testing proved that the semen belonged to the victim·s husband, Hubert Muncey, not House. Aside from the semen evidence. "there was no physic8l . evidehce supporting" rape or attempted npe.••There was no evidence of forced penetration, the victimS clothing was not ripped or removed, and there were no bruises' on' the victim indicating an attempted rape. l'he State now seems to concede these facts,» the court .said. .Okay, so maybe House didn't rape Mrs. Muncey. Maybe he.bad soineother motive to murder her. After all, her blood was found on Holise's jeans. But there's mo~ to it than that. In . a nutshell, House's attorney's demonstrated that the blood found on the jeans was taken from vials of blood drawn from Mrs. Muncey's body many hours after the murder. That is, the blood on the outside of the victim·s body had a different decay rate (enzymatic denaturing) than the bl~. in the vials arid on < the jeans; yet the blood on the jeans had the same rate of . decay as the blood in the vials. Obvi~Usly.there ~ been some evidence tampering. .' But there's more. Two witnesses came foi'waid and testified that "Hubert Muncey CoDfessed to accidentally killing his wife." According to Kathy Parker and Penny Letner. Mr. Muncey said that "he smacked,her and she feU and hit her head." A.third ,witness testified "that he told her that he was going to get rid of his wife' a few months before her death." . . One m~t think that. with all of this evidenc:D indicating the foundation of the State's caSe is ~ to say the least, any court would be happy to grant a ~ trial. But such is not the case. Bogged down by corrosive reasoning and hubris-filled rhetoric, courts halve been unable to determine whether House should receive a filir trial despite knowing the first trial was' fimdamentally flawed. If House is guilty. won't the evidence prove it? It is hard to acknowledge that so many "jurists of reason" would risk executing an innocent man rather than simply order a new trial. The public is left to guess whether the courts have any faith in the very system in which tJteYare anintegra1part. It may turn out to be a good thing that the US Supreme Court decided to intervene. According to Nina Morrison, an attorney with the Innocence Project in New York, "This will be the first time the Supreme Court considers the impact of DNA evidence on the constitutional right to a fair trial. The potentilU implications are significant" House, who has been incarcerated since 1985 and is currentIy on death row. would probably agree. The Innocence Project has employed DNA testing to exonerate 172 people since 1989, including 14 from death row. "What we have leaned... is that DNA evidence 10,20, 30 years later turning out to be much more reliable than eyewitness testimony and more reliable; than confessions that are often faIse," said Peter Neufeld, cofounder ofThe Innocence Project. , Lawyer Barry Scheck, also a cofounder of The Innocence Project, and Neufeld together filed an amicus curiae (friend of the court) brief with the Supreme Court in the House appeal encouraging the court to grant House a new trial. "Whenever postconviction DNA testing proves that.a prosecutor's theory ofthe case was filIse.and proves that certain factual assertions present in the original trial were false, then at a minimum that.conviction shOuld not stand and a new jury should be able;to hear thetruth," said NeUfeld. The general public might find it amazing to learn however that 1S state attorneys general filed amicus curiae briefs urging the Supreme Court to not only deny House relief but also to prevent federal courts from intervening in state criminal cases notwithstanding evidence proving the innocence of those unduly convicted. What's worse is 13 Florida Prison Legal Perspectives that federal law supports their position. The .Antiterrorism and Effective Death Penalty Act (AEDPA) and Prison Litigation Reform Act (PLRA) both operate to limit access to federal courts with such strict wording that the US Constitution has taken back seat to legislative and procedural law. There are some who think the House case will not really change anything, like Kent Scheidegger, legal director at Criminal Justice Legal Foundation: "It may be a vehicle for incremental change," he said, "but I don't expect anything ground breaking out ofthis case." Mr. Neufeld is a bit more optimistic: "For the first time the entire American public, including the Nine Supreme Court justices, are aware of just how vulnerable our criminal justice system is and how easy it is for innocent people to get wrongly convicted," he stated. "If there is going to be a situation where we are going to go back and give somebody a second trial, then it should be those cases where scientific evidence sheds new light on the question of guilt or innocence." The Rehnquist court upheld AEDPA and PLRA; let's hope the Roberts court can do the right thing, give the American people fair trials and quit playing lap dog to the corrupt politics pouring from the halls of congress. A decision is expected in the House case before the Supreme Court recesses in June. (Note: The Supreme Court heard oral arguments in House v. Bell, case No. 04-8990, on January 11, 2006. The underlying federal appeal court decision is found at House v. Bell. 311 FJd 161 (6th Cir. 2002).] [Sources: Federal Reporler; Chrislian Science Monilor, January 12, 2006] • by Dana Meranda nder Rule 3.850 Fla.R.Crim.P. a motion to vacate a U sentence that exceeds the limits provided by law may be filed at any time. Summers v. Slale, 141 So.2d 987 4 (Fla. 5th DCA 1999). It has been held that this portion of the rule authorizing review of sentences "in excess of the maximum authorized by law" refers to a sentence which is above the legislative maximum for the prescribed crime. Wahl Y. Slale, 460 So.2d 519 (Fla. 2d DCA 1984). Such a claim may be raised at any time pursuant to Rule 3.850 or Rule 3.800(a). depending upon whether an evidentiary hearing is required. Hinson v. Slale, 109 So.2d 629, 630 (Fla. III DCA 1998). Dol Y. State. 30 Fla.L.Weekly 0155 (Fla. 3d DCA 3/16/05). However. despite the "filed at any time" provision lof the rule. where the illegal sentence issue requires a factual resolution (i.e. evidentiary hearing) the motion must be filed within the· applicable two-year time limitation. Maynard v. Slate. 163 So.2d 480,481 (Fla. 4" DCA 2000); Lee Y. Slale, 154 So.2d 14 (Fla. 4th DCA 2000) (Jail time credit issue); Houser v. Slale, 30 Fla.L.Weekly 01198 (Fla. 2d DCA 5/11/05) (scoresheet errors). No other motion to vacate. set aside, or correct a sentence may be filed or considered if filed more than 2 years after the judgment and sentence become final in a non-capital case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed. For purposes of the 2-year time limit under Rule 3.850 the judgment and sentence become final when direct review ofihe proceedings has concluded. If a judgment and sentence are appealed, they become final for these purposes upon the issuance of the mandate by the District Court of Appeal. Beaty v. Slate, 101 So.2d 856 (Fla. 1991); Witt v. Stale, 861 So.2d 1292 (Fla. 5th DCA 2004). On the other hand, if the Florida Supreme Court has jurisdiction to review the District Court's decision and review in that court is sought, the judgment and sentence become final upon the conclusion of proceedings in the Supreme Court. Maxwell v. State, 888 So.2d 152. 153 (Fla. 51b DCA 2004); Perkins Y. Stale. 845 So.2d 213 (Fla. 2d DCA 2003). The Florida Supreme Court generally does not have jurisdiction to review decisions issued without a written opinion (i.e. Per Curium Affirmed). but it may review a "citation PCA," if the citation is to a decision that either is pending review or has been reversed by the Supreme Court. Id. at 845 So.2d 214. Where no direct appeal is taken, the judgment and sentence become final upon the expiration of the 3o-day period within which the defendant could file an appeal (Notice of Appeal). Davis v. Stale, 681 So.2d 292 (Fla. 2d DCA 1997); Black v. Slate, 150 So.2d 162 (Fla. 3d DCA 2000). If a Petition for Writ of Certiorari is filed with the United State Supreme Court, the two-year time period does not begin to run until the writ is finally determined. HJdfv. State, 569 So.2d 1241, 1250 (Fla. 1990); Barkettv. Stale, 128 So.2d 192 (Fla. 111 DCA 1999). Rule 3.850(b) provides three (3) exceptions to the 2-year period of limitations. For a summary of this subdivision see FPLP VoL 1, Issue 2, pgs. 9-11, Postconviction Comer, by Loren Rhoton, Esq. A second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion. Owen v. Crosby. 854 So.2d 182. 181 (Fla. 2003). For Co$lling issues of timeliness under the mailbox rule, the Florida Supreme Court held that a motion is deemed filed on the date appearing on the Florida Prison Legal Perspectives LOREN D. RHOTON I I-------------PCSTCCNVICTICN ATTORNEY • • • • • • Direct Appeals Belated Appeals Rule 3.850 Motions Sentence Corrections New Trials Federal Habeas Corpus Petitions 412 East Madison Street, Suite 1111 Tampa, Florida 33602 (813) 226-3138 Fax (813) 221-2182 Email: .Iorenrhoton@rhotonpostconvlctlon.com Website: www.rhotonpostconvlctlon.com The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask us to send you free written information about our qualifications. BUYTHEBOOK-ONSALENOW POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER A Compilation ofSelected Postconviction Corner Articles A collection ofLoren Rhoton's Postconviction Corner articles is now available in one convenient book. These articles are an invaluable tool for Florida inmates seekingjustice in their cases. Helpful insights, case citations, and references to the relevant rules ofprocedure are provided. This book is a must for those pursuing postconviction relief. To order, send $20.00 in the form of a money order, cashier's check or inmate bank cheek (no stamps, cash or penonal checks please) to the address above, or order online at www.rhotonpostconviction.com. "--------------------------15 Florida Prison Legal Penpectives motion's certificate of service. Thompson v. Stale, 761 So.2d 321, 326 (Fla. 2000); Weslly v. Slale, 30 FIa.L.Weekly 0144'9 (Fla. 2d DCA 6/8i05). Rule 3.050 Fla.R.Crim.P. allows a court "for good cause shown" to extend the two-year deadline for filing a postconviction motion under Rule 3.850. Slale v. Boyd, 846 So.2d 458 (Fla. 2003). Amendment of Rule 3.850 motions are permitted when made within the limitation period. The Supreme Court determined that when both the original and amended 3.850 motions are filed within the statutory 2year time limit.. .it was error not to consider the merits of the new allegations. Gaskin v. Stale, 737 So.2d 509 (Fia. 1999); Pritchell v. Stale, 29 Fla.L.Weekly 02202 (Fla. 2d DCA 2004). In Wallon v. Dugger, 634 So.2d 1059, 1062 (Fla. 1993), the defendant was granted 30 days in which to amend a Rule 3.850 motion to pennit additional claims or facts discovered as a result of a public records ~uest. And see: Rozier v. Slale, 603 So.2d 120 (Fla. 5th DCA 1994) (not barred from filing relevant supplemental document within reasonable time after 2-year deadlineapplying Rule 1.190(e), Fla.R.Civ.P.) When the trial court orders the correCtion of a technical defect (i.e. Oath) it will normally specify the time within which to refile, even tlnugh it may be beyond the 2-year time limitation. Jumper v. State, 30 FIa.L.Weekly 01309 (Fla. 2d DCA 5/25105); Daniels v. State, 685 So.2d 1344 (Fla. 2d DCA 1996). . In coqjunction with a resentencing proceeding as a result of a "direct appeal," the 2-year limitations period for filing a Rule 3.850 motion begins to run when both conviction and sentence become final. Pierce v. Slale, 875 So.2d 726 (Fia. 4th DCA 2004); Skeens v. State, 853 So.2d 494 (Fla. 2d DCA 2003). Where a resentencing occurs following a successful "postconviction motion," see Joseph v. Slale, 835 So.2d 1221 at 1222 n.3 (Fla. 5th DCA 2003) (the 2., year limitation is not tolled by other collateral proceedings filed in the trial court, even if a corrected sentence is entered.) Where a defendant was resentenced pursuant to a Rule 3.800(a) motion, the 2-year limitation period for issues raised in a Rule 3.850 motion attacking the judgment commenced when the judgment became final, not when the defendant was resentenced. Smilh v. Stale, 886 So.2d 336 (Fla. 5th DCA 2004), citing Kissel v. Stale, 757 So.2d 631 (Fla 5th DCA 2000) (resentencing did not effect finality ofjudgment). [Important Note: For anyone intending to file a 28 U.S.C. § 2254 federal Petition for Writ of Habeas Corpus after exhausting state remedies, in order to be timely filed in the Federal District Court, consideration must be given to the I-year AEDPA time limitation. See: Tinker v' 61 Moore, 225 F.3d 1331 (11 th Cir. 2001); 28 U.S.C. § 2244(d)(2). The I-year federal limitation begins to run on the date the judgment became final· by the conclusion of any state direct review (i.e. direct appeal) or the expiration of the time for seeking such review. See: Kaufmann v. u.s., 282 F.3d 1336, 1339 (11 th Cir. 2002). Section 2244(dX2) does not toll statute of limitations during 9O-day period to petition for writ of certiorari to US Supreme Court of deniaJ of "state postconviction relief." Coates v. Byrd, 211 F.3d 1225, 1226 (11 th ~ir. 2000).) • M01IfleDDD tl:o CO~ 1IIIDep)D SeDn~ce lFIDlecdl P1DurlIuDsmnG: tl:o l1lmIIha 308M(.~ IrJlSl.JRL.<CIrfb:am.JlD. by Dana Meranda '"I Then preparing a Motion to Correct llIegal Sentence to research the applicable law in effect at the time the offense was committed; since such motions can be filed at any time, even decades after the sentence was imposed. Absent retroactive operation, the law in effect at the time of the offense is controlling. Castle Y. State, 330 So.2d 10 (Fia. 1976); Wells Y. State, 30 Fla.L.Weekly DI826b (Fla. 3111 DCA Aug. 3, 2005). And, other than a genuine pipeline case, it's not the law in effect at the time of any resentencing. Milchell v. Slate, 635 So.2d 1073-74 (Fla. lSI DCA 1994). See also: Hamillon v. State, 30 Fla.L.Weekly D2417c (Fla. 4th DCA Oct. 12, 2005) certifying conflict with Isaac v. Slate, 30 Fla.L.Weekly DI582e (Fia. III DCA June 23, 2005) on whether Apprendi applies to resentencing when tried and sentenced pre-Apprendi. It is also particularly important to recognize any changes/amendments that may have developed concerning the Rules of Criminal Procedure and Florida Statutes along with each oftheir effective dates. For instance, Rule 3.701, FIa.R.Crim.P. (Sentencing Guidelines) used in conjunction with Rule 3.988(a)-(i) (Scoresheet Forms) applies to all felonies except capital felonies committed on or after Oct. I, 1983, and before Jan. 1, 1994. See: FlorUkJ Criminal Sentencing Law, 2d ed, by C. M. Bravo. These rules as revised by the Florida Supreme Court on May 8, 1984,' were adopted and implemented in accordance with § 921.001, Fia. Stat. (Sentence). Laws of Florida Ch. 84-328 became effective on July I, 1984, as illustrated in Smilh v. State, 537 So.2d 982, 984 (Fia. 1989). Second, the issue(s) must be cognizable on Rule 3.8oo(a) motions. For example, judgment issues are strictly forbidden and have no probability of success. Safrany v. State, 895 So.2d 1145 (Fla. 2d DCA 2005). VV under Rule 3.800(a), it is essential Florida Prison Legal Perspectives· A double jeopardy sentencing error plain on the face of the court records could satisfy the parameters of cognizability if carefully explained and presented. Ortiz v. State, 779 So.2d SS2 (Fla. 2d DCA 2001); Shaw v. State, 780 So.2d 188 (Fla. 2d DCA 2001). Generally, issues which require a .factual resolution (in an evidentiary hearing) should not be brought in a motion to correct illegal sentence. Spires v. State, 796 So.2d 1245 (Fla. Sib DCA 2001). From time to time the Florida Supreme Court decides a variety of (cognizability issue) cases for the purpose of Rule 3.800(a) motions, e.g., Wright v. State, 30 Fla.L.Weekly 5611 (Fla. Sept I, 2005), "failure of sentencing court to provide written reasons for retention of jurisdiction does not constitute an illegal sentence as contemplated by Rule 3.800(a)." See also: Galindez v. State, 892 So.2d 1231 (Fla. 3M DCA Feb. 16, 2005) and Taylor v. State, 897 So.2d 496 (Fla. 41b DCA Feb. 23, 2005), both certifying direct conflict with Johnson v. State, 877 So.2d 795 (Fla. Sib DCA 2004), on whether vindictive sentencing issues are cognizable on Rule 3.8oo(a) motions; and Williams v. State, 30 Fla.L.Weekly 02569a (Fia. 41b DCA Nov. 9, 2005), on rehearing, certifying conflict with Watts v. State, 790 So.2d 1175 (Fla. 2d DCA 200I), as to whether a mere allegation that a written sentence does not comport with an oral pronouncement is sufficient to raise a Rule 3.800(a) claim. This is a valuable step and will save a lot of time and grief in the long run. If the issue is not clearly cogni2able on Rule 3.8oo(a) motions. the time spent writing the motion is' wasted. The courts simply will not address it. Third, the avid legal researcher has undoubtedly read countless DCA cases finding that the Rule 3.800(a) motion fitiIs to meet the facially sufficient requirement Florida DCAs are fairly consistent on this requirement: (1) the error must have resulted in an illegal sentence; (2) the error must appear on the face of the record; and, (3) the motion must affirmatively allege that the court records demonstrate on their face an entitlement to relief. E.g., Robinson v. State, 816 So.2d 222-23 (Fia. III DCA 2002). The Second DCA recently emphasized the importance of this requirement in Macaluso v. State, 30 Fla.L.Weekly 02494a (Fla. 2d DCA Oct. 28, 2005), explaining that the postconviction court's (trial court) first task was to determine the facial sufficiency of the Rule 3.800(a) motion. However, be aware, there is some inconsistency among the ocAs on whether ruling on a facially sufficient 3.800(a) motion requires the trial court to justify a denial with attachments. Shaw v. State, 780 So.2d 188, 191 (Fla. 2d DCA 2001); Cf. Williams v. State, 30 Fla.L.Weekly 02569a (Fla. 41b DCA Nov. 9, 2005). And, it is the duty of the court, not the state, to supply the necessary attachments. McBride v. State, 810 So.2d 1019 (Fla. 51b DCA 2002); England v. State, 879 So.2d 660 (Fla. Sib DCA 2004). When it has been determined the motion is facially insufficient (a procedural ruling-Reynolds v. State, 827 So.2d 356 (Fla. 111 DCA 2002», a defendant has a right to refile the motion and correct the identified insufficiency. Flanagan v. State, 792 So.2d 519 (Fla. 2d DCA 2001). Therefore, be aware that the language used in the motion is eXtremely important. A choice of the wrong wording or omitting an affirmative, required allegation will serve to invite defeat with alarming quickness. Forth, the record...refers to the entire written record available in the circuit court. Atwood v. State, 765 So.2d 242-43 (Fla. 111 DCA 2000); Jackson v. State, 803 So.2d 842, 844 (Fla. 111 DCA 2001) (transcripts). As a precaution, it is wise to specify where the necessary information could be located (whenever possible) and state. how the record demonstrates entitlement to relief. Milne v. State, 807 So.2d 725 (Fla. 4 th DCA 2002); While v. Slate, 886 So.2d 286 (Fla. 111 DCA 2004). Even though it is preferred to include court records (if available) as attachments to the motion, a defendant is entitled to correction of an illegal sentence regardless of the fact that he failed to include transcripts of a sentencing hearing or of a completed scoresheet under the applicable version of the guidelines. Eastwood v. State, 834 So.2d 409 (Fla. 51b DCA 2003). Lastly, Rule 3.8oo(a) "contains no proscription against the filing of successive motions" but that "a defendant is not entitled to successive review of a specific issue which has already been decided against him." State v. McBride, 848 So.2d 287, 291 (Fla. 2003), citing Price v. Slate, 692 So.2d 971 (Fla. 2d DCA 1997). But see: Cillo v. Stale, 30 Fla.L.Weekly 02SS6 (Fla. 2d DCA Nov. 9, 2005) e[C]ollateral estoppel will not be invoked to bar relief when its application would result in manifest injustice.") Although the foregoing points out some basic standards involved with Rule 3.800(a) motions, it's merely a scratch on the surface of the topic. The most effective practice requires thorough research and preparation on a cas~by-case basis. • <CUttnttli@lDllLilW WfiIIIllLftblly ~ lInnte~ 1[J~ ver eight year ago Florida lawmakers passed legislation that gives the judiciary the power to order chemical castration to sexual offenders. However, the law seems to be foreign to many judges. In fact, many are unaware of the law. That will change soon. Victor Crist is concerned and he has vowed to get some answers as to why the law is not used more O . 17 Florida Prison Legal Perspectives frequently. Crist (R), a state senator from Tampa who helped engineer the mandatory castration law, is angry that it has fallen into disuse. A study by the State Courts Administrator General Counsel's Office suggest it wasn't even discussed in dozens ofcases where the law required it. Les Garringer, senior attorney for the general counsel's office, surveyed judges and court administrators to determine why they are failing to use chemical castration as required in criminal cases involving violent rapists who have been convicted of two sexual batteries under Florida Statute 794.011. The study uncovered at least four Pinellas County cases where sex offenders sentenced to prison terms should have been ordered to receive mandatory castration after their release. Garringer said the state courts' administrator will distribute his findings to the Legislature, the DOC, and .Gov. Bush with recommendations to improve the castration law. • ust when you think you've heard every horror story Jwrong. about the criminal justice system, a state proves you This time it is the state of North Carolina. Recently, Junior Allen walked out of the Orange Correctional Center after serving 35 years. His crime? Stealing a black and white television. Allen was a 30-year old migrant farm worker from Georgia with a criminal record when he walked into an unlocked house and stole the 19-inch television worth approximately $140. He was sentenced in 1970 to life in prison for second-degree burglary. Ironically, that same offense today carries a maximum penalty ofthree years in prison. It took Allen 26 attempts at parole before the Parole Commission decided to free him. A program. director at Carteret Correctional Center in Newport where Allen was required to attend a work-release program feared Allen may have a difficult time adjusting to life on the outside following his lengthy incarceration. He also offered a rather striking question: How much time would Allen have gotten had he ,stole a color TV? • . Guide help. those _ged by criminal records A new publication &om the Sentencing Project can guide former prisonm in undmunding lheir rights and oYUCOming lhe basgage of a criminal rKord. "1Ulief From the Collateral Consequences of a Criminal Conviction: AState·by, SUte Retource Guide" describes the fedetaI, state and j~ietionallaws and practices relating to restoration of rights and fiading relief &om lhe collateral consequences of a crimina1 conviction. "NotWithslaDding our fond natiooal self,imagt, ours is not a land of second chances, at least u far as the Iepll)"Slan is concerned," writes report author Margaret Colgate Love. who concludes lhat I11O$t JUrisdictions offer ways 10 circumvent post, prison penalties but lhat lhey are usually inaccesst'ble lind unreliable. You can access lhe repon at www.senlencingproject.orglrillhu~ration.cfm. 8 I - NOTICEThl' mailing :Hhln's.s f",' 171'1,:\0, Inl'., and Florida Priso/l Legal P{'nJ)('clil'{,.~· (FPLP) has changcd. Thc ncw addn'ss is :IS follows. Pltasl' Sl'/HI a/l mail flJl'ci"l/lcr FpLAO, IlIl'., Ill' FI'Lp 10 this new addrcss: P.O. Box 1511 Christmas FL 327(1 1)-]511 LITIGATION UPDATE In FPLP, Vol. 11, Iss. 3, we reported on Smith Y. FDOC, 30 Fla.L.Weekly D1299 (Fla. 1st DCA 5/23/05), where theappea1 court held that the FDOC's legal photocopying fee rule, 33-501.302, F.A.C., is invalid because the FOOC never had statutory authority to implement such a rule. In the last issue of FPLP it was noted that the FOOC motioned to certify a question on it to the Fla. Supreme Court. Those motions were denied, and the FDOC petitioned the state Supreme Court to accept jurisdiction and review the decision. A stay was granted .until the high court decided whether to accept jurisdiction. On January 18, 2006, the Fla. Supreme Court refused to accept jurisdiction and denied review, meaning the appeal court decision will stand. The appeal court should now issue a Mandate on the decision and finalize it. Once that happens, prisoners who have been charged photocopy costs, or had liens placed on their accounts. for same, should exhaust the FDOC grievance procedure seeking reimbursement to, or removal ofthe liens from, their inmate accounts for past photocopying costs, citing the Smith decision. If the FDOC refuses to voluntarily reimburse or remove the liens, for amounts up to $5,000, relief could be sought in small claims courts around the state. [Note: hi small claims courts it is important to know how to move your case along. See Clark Y. State, 30 Fla.L.Weekly 01945 (Fla. 4th DCA 8/17105); Smartt v. First Union Nat. Bank, 771 So.2d 1232 (Fla. 51b DCA 2000); and Powelly. Watson, 565 So.2d 845 (Fla. 51b DCA 1990).]. Florida Prison Legal Penpectives EXPERIENCED CRlMINAL DEFENSE ATIORNEY AVAll..ABLEFOR STATE AND. FEDERAL · POST-CONVICTIONMAfIERS •. Admiued to the Flonda Bar in 1973 '. Over thirty years experience in the practice of ~nallaw • Providing represelitation in Direct AppealS, Belated Ap~ 3.850 motions, 3.800· motions, 2255 motions,' State arid Federal Habeas Corpus ~etitions, Detainer Issues, ~ other Postconviction Matters. Inquiries to: Law Offices of 'Vanie['D• .1tfaztir Lee 'lwaJi 'Winter 'Pari, 7L 32789 '1'0([:free '1'et: 1-888~4S-53S2 . 'I'et: (407) 64S-S352 21S3 :Fax:(4Q7J'64s-3224 fte b1~1Ilg of • l.wye~ is yOu ~de, tUI ••t u. to send you iDportant decision .tbat .1i01l1d not be bued .olely upOD advent.....ta. lefon f~e~ information about oq~ qualifications aDd .~~leDCe" "- David ~ Collins, Attorney at Law Fonner state prosecutor with more than 20 years of criminal law experience "AV" rated by Martindale-Hubbell Bar Register ofPreeminent Lawyers Your voice in Tallal,assee representing prisl!ners in all areas ofpost-eonviction relief: Appeals 3.800 Motions ;.850 Motions Slate and Federal Habeas Corpus \Vrits of Mandamus Parole Hearings Clemency Plea Bargain Rights Sentencing and Scoresheet Errors Green, Tripp, Karches/cy, Heggs cases Jail-time Credit Issues Gain-time Eligibility Issues Habitualization Issues Probation Revocation Issues Write me today abouTJIOllr case! David W. Collins, Esquire P.O. Box 541 Monticello. FL 32345 (&SO) 997·&111 "The hiring ofa :awyer is an important decision thnt shoulci not be based solely up~n advertisements. Before you decide, ask me to send you free written information about my qualifications and experience." 19 Florida Prison Legal Perspectives GA - On December 8. 2005. an Atlanta judge freed a prisoner whose claims of innocence of a kidnapping , and rape for 24 years were rejected until DNA testing proved he wasn't guilty. Robert C·lark, 45. had been wrongfully convicted for a 1981 attack on an Atlanta woman and sentenced to life plus 20 years. His lawyers said DNA from another man, a friend of Clark's, Floyd Arnold, matches the rape and two others committed after Clark was sent to prison. Clark was convicted after the victim identified him as the man who carjacked and repeatedly raped her. Vanessa Potkin, an Innocence Project attorney that pushed for Clark to be freed, called the case "truly horrific." When released, Clark, while kissing and hugging his family members, kept repeating, "I told you. I told you.,. FL - During November '05 the U.S. SUfreme Court refused to review the I 1 C~it Court of Appeals' decision upholding Florida's lifetime ban on voting rights for convicted felons. However, Alan Spalding, with the Florida branch of the American Civil Liberties Union, says opponents of the ban are ready to get the issue on the November '06 ballot for the public to vote on, if necessary. FL - On December 14, 2005, Gov. Jeb Bush signed legislation passed during a special session of the . Legislature in November giving Wilton Dcdge $2 million in compensation for time wrongfully spent in prison. Florida law caps claims against the state at $100,000; to get more, the Legislature must pass a special claims bill. Dedge was lucky. Sandy D'Alemberte, a former 10 state legislator and Florida State University president, led an effort to compensate Dedge for the years Dedge was stolen from him. released from prison on AuguSt 12, 2004, after spending 21 years, 10 months, and 23 days in Florida prisons. He was proven innocent of a 1981 rape by DNA testing. [See: FPLP Vol. 11, Iss. 1, pgs. 3-6, for Wilton Dedge's story.] FL - Hernando County Jail guard Nathaniel Pullings, 33, was fired September 30, 2005, after he went into a female housing unit at the jail and ordered the women prisoners to strip naked. Pullings was in charge of the jail's laundry and claimed he wanted them to strip to wash their laundry. He was overheard by the husband of a prisoner telling the women, "You bitches strip and wrap a towel around you." The jail is run by the private company Corrections Corporation of America. FL - A former Levy County corrections guard was arrested December 15, 2005, by state authorities on allegations that. he used his position as a corporal at the county jail to force female prisoners to have sex with him. Willie Lee Powell, 45, of Chiefland, was charged with four counts of sexual battery by a person in a position of authority. His bond was set at $100,000 on each charge. Powell's personnel file shows he had worked for the Levy County Sheriff's Office for four years. He began his career as a guard at Lancaster in 1983, and he also worked at correctional facilities in Columbia County before joining the LCSO. He had been forced to resign July 25, shortly before the Florida Department of Law Enforcement began its sexual battery investigation. IA - On July 4, 2005, Gov. Tom Vilsack signed an order returning voting rights to an estimated 80.000 Iowans who have completed prison sentences for felony convictiom. Currently only four states, Alabama, Florida, Kentucky and Virginia. still deny the right to vote to people convicted of a felony or aggravated misdemeanor. Except for Vermont and Maine, all states prohibit felons from voting for a period after convictions, but the period in each state differs. The above four states are the only ones that impose a lifetime ban on voting unless restored by special clemency. ID - During October 'OS Idaho shipped 302 of its state prisoners to a private Minnesota prison to be housed because of prison overcrowding. In November, ID DOC officials said they will likely ask for almost $8 million more on their budget during the 2006 legislative session to address prison overcrowding. Idaho's prison population has more than doubled in the past decade, to 6,764 in Nov. 'OS. NC - On January 1,2006, the North Carolina Department of Corrections banned all indoor smoking by staff and prisoners at all of its facilities. NE - In March 'OS the Nebraska Legislature passed, then overrode Gov. Dave Heineman's (R) veto of a bill lifting the ban on voting by those Nebraskans with felony convictions after two years of completing their sentence. The bill, passed into law, is estimated to have restored the voting rights of 59,000 people. Florida Prison Legal Penpeetives 08 - During December '05, Clarence Elkins, 42, was released from the Mansfield, OH Correctional Institution after serving 7 years of a life sentenc:e for murder and rape. He was exonerated by DNA evidence. TN - The Tennessee DOC presented its budget request to Gov. Bredesen in November for the next fiscal year. The TDOC says it expects an increase of 1,000 prisoners and will need about 100 more staff people. The increase would cost 547 million. Approximately 28,000 people are expected to be in Tennessee prisons in fiscal year 2006. TX - On November 12, 2005, Texas prisoner David Ruiz died in at a Galveston, TIC, prison hospital. Ruiz, 63, was known for filing a pro se federal lawsuit in 1972 that continued for three decades and resulted in court-ordered improvements in the Texas prison system, stopped the use of prisoner "guards," and improved medical care (Ruiz v. Estelle). That case was finally dismissed in 2002, another victim of the Prison Litigation Reform Act of 1996 (pLRA). which has severely limited the federal courts' ability to order long term relief for constitutional violations of prisoners' conditions of confinement Ruiz died while serving a life sentence for a robbery committed while he was on parole in 1983. - Except for 4 years, Ruiz spent all of his adult life in prisons or jails. He died ofnatural causes. • FOR CLEMENCY ASSISTANCE INFO. WRITE TO: NATIO~AL CLEMENCY PROJECT 8624 CAMP COLUMBUS ROAD HIXSON, TENNESSEE 37343 (423) 843-2235 Critical Resistance in Florida Critical Resistance (CR) is a national grassroots group that fights to end the prison industrial complex. There's· 3 regional Critical Resistance centers: 1) Oakland, Calif., is the first and is the National Office for CR; 2) New York City is the headquarters for the Northeastern Regional Office; and 3) New Orleans is where the Southern Regional Office is located, although their offices have been temporarily moved to Baton Rouge. Florida is part of the Southern Region. There are 2 CR Chapters in Florida, Gainesville and Tampa/St Petersburg. We meet every Sunday evening in St Petersburg; however, we are planning to hold meetings in Tampa on certain Sunday evenings that are convenient for those in the Orlando area to attend. We are made up of Teachers, Ministers, youth who are interested in being part of changing our world for the better, former inmates, and other citizens concerned about the huge increase in prisons in the U.S. We are asking that inmates who have family or friends in the TampalSt Petersburg or Orlando area have them call us at (727) 278-1547 or (813) 4014256. We would love for them to work with us to bring about a change. We would love to hear from inmates as well, we already have other inmates working with us from within the prison system. Our contact address is: Critical Resistance Attn: Dennis Segall P.o. Box 21922 Tampa, FL 33622 • I II Florida Prison Legal Perspectives by Loren Rhoton. Esq. POST CONVICTION CORNER X A State inmate seeking to attack his Judgment and Sentence in the federal courts can do so by filing a Title 28 of the United States Code (U.S.C.) §2254 federal petition for writ of habeas corpus. However, there are numerous requirements before the merits of a §2254 petition will even be considered by the federal courts. Firstly, as with 3.850 motions, there is a period of limitations which can serve to bar consideration of a 2254 petition. Title 28 U.S.C. §2244(d)(l) provides a one year period of limitation for filing the federal petition. However, should a case appear to be outside ofthe one-year period of limitations, the postconviction litigator may still be able to obtain a review of the constitutional claims if a showing of actual innocence can be made. Pursuant to Title 28 U.S.C. §2244(dXI) the one year period of limitation shall begin running from the latest of the following: I. The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 2. The date on which the impediment to filing an application created by State action, in violation of the Constitution or laws of the United States, is removed, ifthe applicant was prevented from filing by such State action; 3. The date on which the constitutional right asserted was initially recognized by the United States Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or, 4. The date on which the factual predicate of the claim or claims could have been discovered through the exercise of due diligence. 12 I If a case appears to be outside of the one year period of limitations imposed by §2244(d), the postconviction movant may still be able to seek review ofthe constitutional claims. Exceptions to procedural rules have been made in situations where it would be equitable to do so. Habeas corpus is, in essence, an equitable remedy. Schlup v. Delo, 513 U.S. 298 (1995). The U.S. Supreme Court has consistently recognized exceptions to the procedural rules when it is necessary to prevent a miscarriage ofjustice. "The individual interest in avoiding injustice is most compelling in the context of actual innocence." Schlup at 325. It has been held that a petitioner's actual innocence may provide a "gateway" to allow federal constitutional claims to be heard in a §2254 proceeding in situations where the petitioner is otherwise procedurally barred by the applicable period of limitations. In Schlup, it was held that although a federal habeas petitioner's actual innocence is not itself a constitutional claim on which relief can be based, it is considered a "gateway" which allows a petitioner to have otherwise procedurally barred claims considered on their merits. Yd. at 315. In other words, a claim of innocence "does not by itself provide a basis for relief." Yd. at Florida Prison Legal Perspectives 315: The actual innocence claim is a procedural claim which is offered to demonstrate that the petitioner's case is one of a select category of cases which implicate"...a fundamental miscarriage ofjustice" and, thus, allow the court to consider the merits of the procedurally defaulted claim. Id. If actual innocence is demonstrated, then the procedurally barred claims of constitutional deprivations (such as ineffective assistance of counsel claims) can be considered on their merits~ As provided in Schlup, a claim of actual innocence is "not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." In making an actual innocence claim, the burden is on the petitioner to present new evidence (not presented at trial) which demonstrates that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. The standard provided in Schlup is that "in light of the new evidence, no juror, acting reasonably, would have voted to find [the petitioner] guilty beyond a reasonable doubt." Id. at 329. This is indeed a heavy burden on the habeas petitioner seeking to avoid a procedural bar. Actual Innocence, for the purposes of this article means factual, as opposed to legal, innocence. By alleging actual innocence, the claim would have to be that the movant actually did not commit the crime. McCleskey v. Zant, 499 U.S. 467 (1991). The term actual innocence essentially means that in light of the new evidence, a reasonable trier of fact could not find all of the elements necessary to convict the defendant of the particular crime. Furthermore, actual innocence has been defined as meaning that the conviction was of a person who was innocent of the specific crime for which he was charged and convicted, not that the petitioner was not present at the scene of the offense. Johnson v. Hargett, 978 F.2d 855 (5 th Cir. 1992). The petitioner must support the claim of actual innocence with new and reliable evidence which was not presented at trial. Schlup at 324. In reviewing an actual innocence claim, the presiding court must "consider all relevant evidence: that presented at trial; that arguably wrongly excluded from trial; and that unavailable at tria1." Battle v. Delo, 64 F.3d 347, 352 (8 th Cir. 1985). And, such an evaluatio,n must be reviewed with an understanding that "proof beyond a reasonable doubt marks the legal boundary between guilt and innocence." Schlup at 328. Should the petitioner be able to make the necessary showing, his constitutional claims should be considered by the reviewing court, even though they would otherwise be procedurally barred. The actual innocence exception to the one-year'period of limitations sets a high standard to get past the procedural bar. But, if such an argument is available, it may be a feasible way of obtaining review of otherwise procedurally barred claims. 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 hundreds ofincarceratedpersons with their cases and has numerous written appel/ate opinions. ______~_*!'!l!.~.£!"!'!'.t_51__- - J 13 Florida Prison Legal Penpectives FDOC Secretary Fired Only a few months after praising what a fine man he is and what a good job he is doing, on Feb. 10, 2006, Gov. Jeb Bush abruptly fired the head of the Florida ·Department of Corrections. The firing, which sent ripples of shock throughout the prison system, followed months of state and federal investigations into illegal activities by state prison guards and top officials in the department. James Crosby, 53, who was appointed by Gov. Bush three years ago to clean up the FDOC following Bush ousting former FDOC Secretary Michael Moore, who .critics claim created turmoil in the department, is apparently himself the target of state and federal investigations. State law enforcement officials sealed Cro~by's office in ,Tallahassee on the day he was fired, although no one is saying yet just what they are looking for. · Crosby spent most of 2005 trying to defend himself and the FDOC against a constant barrage of allegations of illegal activities and wrongdoing in the FDOC. Those ·allegations ranged from prison guards operating an illegal .steroid distribution ring to top officials ruling the department's employees through fear and intimidation. Other allegations involved prison employees stealing state property, using prisoners to perform personal work, hiring phantom employees, and in one case rape of a female prison guard by a ranking officer who committed suicide after being accused. Crosby himself also came under scrutiny in 2005 concerning his ties to lobbyists for companies seeking multi-million dollar contracts with the prison system. (All this previously reported on in FPLP, Vol. 11, Issues. S and 6, SeptlDec 2005.) However, it appears that Crosby may have other problems that have yet to be revealed. At a new conference in Miami, when asked why he fired Crosby Gov. Bush said he wouldn't talk about the details because of ongoing investigations, he did however say, "I'm saddened and really disappointed, but I had to do it But as the details come out, it'll be clear that it was the appropriate thing to do." "There is an ongoing investigation into the Department of Corrections, and we can't discuss individuals," said Federal Bureau of Investigations Special Agent Jeff Westcott in Jacksonville. Westcott acknowledged that joint. FDL,E and FBI investigations are looking into matters that have not yet been reported in the media, but d~lined to give any details about those matters. Tom Berlinger, spokesman for the FDLE, also declined to give any details, citing the state's continuing investigations. .Crosby, contacted at home by phone, effused to comment .on why he was tired, and referred all questions to the governor's office. 14 I So, just what is known so far? In August, AlI~n Clark, an FDOC regional director whom Crosby is persona~ friends with and whom Crosby promoted up to a top' position in the' department, was forced to resign as state and federal investigators question~, arrested and charged numerous prison guards wi.th steroid trafficking. Clark and tWo other ranking pnson guards were' later charged in November with assaulting a former prison guard afa party, but the charges were dropped in January on that, no report on why. FDLE agents seized vehicles and trail~rs belonging to Clark and other FDOC employees in six North Florida counties a .few months ago and reportedly ire investigating prisoners being used to do personal work for FDOC staff. After Crosby waS fired' it was also reported that this past fall investigators confiscated' items from Crosby's Tallahassee home: a leaf blower,' a fuewood rack and a ladder. Investigaton declined to 'say why they wanted the i t e m s . . . A total of 10 former prison guards have been charged in connection with the steroid trafficking, six have pleaded guilty, four more·were charged in·JanuarY_ , , During the first week of Fe~ruary,a former prison officer who managed the state prisoo's reCycling program pleaded guilty to embezzling from a recycling center and for his part in the'steroid ring in which he' sold dnigs to other prison guards. .. Also last fall, several other state prison 'guaz:ds were arrested for fighting at a bar near the state 'prison in Starke, and a former minor-league baseball player was' arrested after being accused of doing nothing but playing on a prison, guard softball team but receiving pay for supposedly being an assistant librarian at a prison. Still another ranking, prison guard committed suicide after being accused, but never charged, of sexually assaulting a fellow guard last fall. . . Crosby himself knew he was being investigated. According to court files and police records obtained by the St. Petersburg Times, a federal grand jury in Jacksonville and the Florida Statewide Grand Jury have been conducting separate investigations ofprison officials. In addition to what appears to be a criminal investigation, Crosby has been taking. heat for his relationships with lobbyists. seeking private contracts for companies that do business with the moc. His awarding of no-bid contracts, like the .One to Keefe Commissary Network to run inmate prison cantee'ns and that authorizes Keefe to increase prices to prisoners 10 percent every six months, has raised questions because of Crosby's relationship with that company's lobbyist, D~m Yeaeger. Cros~y insisted that he paid his own way o,n their trips to sportmg events and concerts. . " On February 6, only days before he was ,fired, Crosby was grilled by state legislators concerning an auditor general's report detailing problems with· how the FDOC handled a contract with a pharmaceutical company. Those ' Florida Prison Legal Perspectives , ,"t',", .. same lawmakers, however, they never expected Crosby to be fired. "1 would be shocked to find out that he would be directly involved with anything illegal," said Sen. Victor C,rist (R-Tampa). Not everyone shares Crist's naivete. ;" Retired former Florida prison warden Ron McAndrew tias.been warning anyone who would listen that Crosby ~aS "corrupting" the FDOC. "What was a wonderful prganization just a few years ago is a shambles now thanks to the practices of Mr. Crosby," McAndrew recently said. _ : Gov. Bush named James McDonough, director of the state Office of Drug Control, as interim secretary of the FDOC. A retired Army colonel, McDonough is one of the longest-serving members of Bush's administration. Apparelltly McDonough is not intended to be a permanent replacement for Crosby, and indications are that Bush will name someone else to serve as FDOC secretary at least until the end of Bush's term as governor expires by ternj limits with this year's upcoming election. What's going to happen with Crosby remains to be seen.• .' , Prison Official Admits Stealing On February 9, 2006, Alan Brown Duffee, 40, the former executive director of the now abolished Florida Correctional Privatization Commission, pleaded guilty in a Tallahassee federal courtroom to stealing almost $225,000 instate money nearly three years after he used the cash to help buy houses for himself and his girlfriend. Duffee pleaded guilty to one count each of mail fraud, wire fraud and money laundering. He faces up to 20 years in prison and a $250,000 fine. He will face sentencing in April. Duffee took the money from the Privatization Commission, which was set up to oversee private prison contracts in Florida. Duffee served three years as the Comr..ission's executive director. The Legislature voted to abolish the Commission in 2004 amid complaints about favoritism to private prison companies and a scandal involving Duffee hiring former FDOC secretary Michael Moo~ as a consultant in violation of state law.• Prisoners Sue Over Chemical Torture Ten Florida State Prison prisoners filed a federal lawsuit against the FDOC on February 6, 2006, claiming they were severely burned when prison guards sprayed them with chemicals. The 'lawsuit names 28 current and" former FDOC employees, including FSP warden Michael Rathburn, and former FDOC secretary James Crosby. The case is being represented by Florida Institutional Legal Services of Gainesville. The suit claims prisoners suffered severe chemical burns. asthma attacks and psychological distress because ofthe excessive use oftear gas and pepper spray on'them. Cassandra Capobianco. an attorney with FILS. said'the excessive use of such chemicals is a result of "systematic corruption" and amounted to knowing misconduct and torture by Florida prison employees. New Study Finds No Correlation Between Incarceration, Declining' Crime Rates A new study released during Nov. '06 by The Sentencing Project suggests there may be no direct link between the growing prison population in the U.S. and declining crime rates. The study found that declining crime rates in states with higher-than-average prison populations were virtually the same as in ,states where the prison population remained stable or even declined. The U.S. incarceration rate grew from 411 prisoners per 100,000 residents in 1995 to 486 at the end of2004. an 18 percent increase, according to recent Bureau of Justice Statistics. The Sentencing Project credits a growing economy, a decrease in the crack cocaine market. and improved policing with the decline in crime rates.• FAMM MEETING On February II. I had the pleasure of,attending a FAMM (Family's Against Mandatory Minimums). meeting in Pompano Beach FL. I met some re!,lly wonderful people at this meeting. and they have been ofgreat support for FPLP. I used to attend a lot of meetings of this sort around the state but finances and time have not allowed me to do this as much lately. That is something I plan on changing this year.. : I want to let everyone know how fulfiUing it is to attend a meeting such as this. When you come together with people who have similar problems or situations as you then you can' be comforted and brain storm to fmd solutions to some of the problems we face as family members with a loved one in prison. I left this meeting with a great sense of accomplishment and hope. for the future of our loved ones. I would like to encourage you If you have never attended a meeting of this sort before to fmd one and GO become enlightened and a part ofthe solution. Ifyou need information on where a meeting is being held. or how to start your own meeting. or would like me to attend a meeting write to me and I will do all I can to help you with the information. We need family members to become more involved and this is a great way to do so. We can help Make changes possible if we come together and work together for the good of all. Teresa TIS Florida Prison Legal Penpectives Two New Sunshine Suits Filed Against Parole Commission By Bob Posey In the last issue of FPU' (Sept-Dec '05) it was reported that during Septembel' 2005 a citizen filed a lawsuit against Monica David, Chainnan of the Florida Parole Commission (FPC), alleging intentional violations ofFlorida's open public meetin~ and records laws. That suit concerns the FPC's adrninisIrative roles being at least ten years out of dale and providing false and misleading infonnation and direclions to the public on how and where the public may attend FPC public meecinp or obIain FPC public records. The relief sought is a declaration fiom the court that such intentional misdirection violates Florida's S~~ Law (§ .286.011, F1a. Stat.) and an iojwction is sought prolubiting DaVId or her FPC cbainnen successors fiom misinfonning the public in any manner about public rneetinp or records. That case is Flowers v. David, Case No. 200s.cA002194. (F1a. 2d Jud. Cir. Ct). Now two more lawsuits have been filed against the entire Commission aIIegin fuI1her SWIShine Law violations. g In mid-FebnJaJy (2006) Deborah Canttell, a freelance writer and business owner fiom Orlando, filed suit against the Parole Commission plaiming that it is violating slate laws and the Florida Constitution by holding secret, closed door meetinp u part of the parole considaation and decision-making process. Specifically Ms. CantteU alleges that wder FJaida law \Wat the FPC terms "parole interviews," whether initial, subsequent, special, or effective date parole interviews, are part ofthe parole decision-making process and therefure must be no1iced and open to the public, minutes recorded of same, and be held in a location c.'AISily accessible to the public and press. Ms. CantteU's suit, seeking declaratoJy and injunctive relief wder Chapter 86 and § 286.011 (2), Florida Statutes, is based on the open publicmeedn~ righ1s set fm1b in Article I, § 24 (b). Florida Constitution. and §§ 286.011 (Sunshine Law) and 947.06, third sentence, Florida S1Btutes (2005). That latter slatuto1y provision specifically provides that: "All matters relating to the grunting; derrying. or revo/dng of parole sholl be decided in a meeting oJ which the public has a right to be present. .. Parole consideration is required by law. Every parole-eligible prisoner must be considered for parole on a periodic basis, usually every two to five years. As ofJlDle 30, 2005,1bae were o~ 5,197 ~g Florida stare prisoners in the 85,000 plus pmon population who were parole-etiglble, since parole sentencing was ew:ntially abolished in 1983 in favor of guideline sentencing. And, it is the tIueo-member Parole Commission's consti1utionaI and statutory rtisponsJbility to make all decisions concerning parole granting. denying. or revocations. Article lV, § 8lC, Florida Constitution, and §§ 2032 (I). 947.002 (3). and 947.13 (1). Florida Statutes. Any delegation of such 16 , responsibility may only occur if certain conditions are met and laws complied with. Parole Interview and HeariDg Proceis . The parole consideration process is divided into two parts. FiJst, when parole-eligible prisoners come up for consideration a "parole intaview" is held at the prison where such prisoners are housed. Such parole interview meetinp are conducted by FPC staff called "parole examiners" or "parole hearing examiners." These examiners are autitotUed by law to meet with such prisoners, conduct fact-finding activities. and report back to the Commission the findin~. However, in a delegation ofauthority, FPC rules and procedure directives direct parole examiners to not only meet with the prisoners and conduct fact-finding. but also to meet with Depar1ment of Correction's representatives during the interview stage, discuss and conduct professional case analyses with them, and obtain a wriUen recommendation fium such FDOC lepitsen1ative(s) as to whether and when parole should be granted. The FPC rules also require the parole examiners themselves to formulate and make a written recommendation, supported by wriUen rationales, for submission the Commission u to what action the Commission should take to grant or deny parole and/or when parole should be granted at a later dale. Second, once the Commission receives the fin~ analyses, recommendations and rationales for the recommendations that were developed at the parole interview meeting, the Commission then meets in a public meeting called the "parole hearing" to approve or deny (with modifications) the parole examiners' recommendations. ParoIe-eligJble prisoners are not present at "parole hearin~" but members of the public can attend and speak, ifgranted prior pennission to do so by the Commission cbainnan. And victims may appear at such "hearing.t;" to oppose parole. Victims, victim advocates, and law enforcement personne~ slate attorneys, judges, etc.. may appear at hearinp and speak without •• . . . . reqwnng pemusstOIL Wbi1e such parole ~ are open to the public, and no1iced to the public, and minutes recorded of such hearin~ parole interviews are not Neither the public victims, no Commission itself ever heAIrs what paroJe.eligJble prisoners up for consideration may have to say on their own behalf: nor are the recommendations and rationales developed at the parole interview ~ explained at the public parole hearing.t;. This, although the Commission's official action at the end of the parole J1earinw; is docwnented (in writing) as approving or denying those recommendations that were formulated behind closed doors. Rix:eotIy Deborah CantreU contacted the Parole Commission requesting infonnation on how she, as a member of the public and press, could attend a nwnber of parole interview ~ to observe the process. In response, the FPC informed Ms. CantreU that neither the public nor the press may attend parole interviews. The FPC's writIm respQDSt further claimed that since parole inteIViews are conducted by FPC staff parole examiners who "only gather Florida Prison Legal Penpectives infonnatioo" that they "are not, therefor't\ subject to the provisions ofthe Govemment-in-the-Sunshine Law." , Dissatisfied with that response, Cantrell, with ~ ftom Florida Prisoners' Legal Aid Org.. Inc., researched what the law says about open public meetin~ What was discovered prompted CantreU to sue for access to attend parole interviews. Although the Parole Commission has operated as it; and argued in the past that, it is not subject to the state's SW1Shine Law, the courts have held o1hetwise. Turner \I. Wainwright, 379 So.2d 148, 155 (FIa. 111 DCA 1980). It affinned and remanded, 389 So2d 1181 (FIa. 1980). It is also weIl-settIed in Florida law that governmental boards or commissions cannot evade compliance with open public meeting; laws by delegating their public decision-making responsibilities to appointed committees or staff who meet behind closed doors and fonnulate recommendations 00 any matter on which foreseeable formal action will later be taken at a public hearing by such boanl or commission. Town of Palm BelL V. GrrxJison, 296 So.2d 473, 477'(FIa. 1974). reaffirmed, Wood \I. Marston, 442 So.2d 934, 940 (FIa. 1983). See also; Dascott v. Palm Bch Co., 877 So.2d 8, 13 (FIa. 4fJ DCA 2004); Spi/lis Candela and Partners, Inc. Yo Centrust Savin&f Bank, 535 So.2d 694, 695 (F1a. 2d DCA 1988); and K:ratm! \I. Reno, 366 So.2d 1244, 1251 (FIa. 3M DCA 1979). That is true even where the conunitlee or staff have no power to bind the boaJd or commission to its recommendations Because making recommendations is decision-making and it is the entire decision-making process, no matter how many steps go into it, that is subject to the SW1Shine Law. Town ofPalm BelL; Wood,/d, and their progeny cases. Meetinp of staff of boards or commissions covered by the SWlShine Law are oot ordinarily subject to poen public meeting; laws. OccidenJal Chemical Co. v. ~, 351 So.2d 336 (FIa. 1977), disapproved in part on o1her grounds, Citizens \I. Beard, 613 So.2d 403 (Fla 1992). However, when a staff member ceases to fimetion in a staff capacity and is delegated authority to hold meeting; and make recommendations to a boaJd or commission, the staff member loses his or her identity as staff while conducting or participating in such meeting, and the Sunshine Law applies to the meeting. Thus, it is the nature of the act perfonned, not the makeup of those in an appointed committee or delegated authority to hold meeting;, or the proximity of the act to the final decision, which determines whether staff meeting; are subject to open public rneetirIp laws. Wood \I. Marston, 442 So.2d at 941. See: News Press Pub.Co., Inc \I. Carlson, 410 So.2d 546, 348 (FIa. 2d DCA 1982). Where the Sunshine Law was enacted for the public benefit, the Florida Supreme Cowt has held that it must be b"berally consIrUed in the public's &vor to effect its remedial and protecI:il'e pwpose. Bd OfPublic /nstructJon ofBmward Co. v. Doran, 224 So.2d 693 (F1a. 1969). and Canney v. Bd OfPublic Instruction of Alachua Co.. 278 So2d 260 (FIa 1973). Numerous cowt decisions have acknowledged that Florida's open public meetin!:l laws serve to promote a state interest of the highest order by tending to enhance and preserve democratic processes. The ability of citizens to monitor govemmen1al decisions and proceedings gtJaIaJlItts that public officials win be held aa:ountable for their actions. Something, DebonIh Cantrell claims, parole commissioners have been Jacking for many, many years. Approximately two weeks after CantreU filed her suit, Erica Flowers filed a second lawsuit against the Commission, this time in the Nmth Judicial Circuit Cowt. Premised closely on Cantrell's suit, Flower's new suit claims the Commission is violating the public's right to notice and access to attend another Commission proceeding, i.e., what are termed "final parole revocation hearin~" That name is somewhat misleading the way the Commission bas set up the revocation process. Parole Revocation Proeess The parole revocation process has 1bree parts to it First, when the Commission believes an act may have oocurnxI that violates the conditions of a parolee's parole a warrant is issued and the parolee is taken into custody. Within a specified time a "prelirninary parole revocation hearing" is held to detennine if probable cause exists to support the charge of a claimed violation. Such preliminary revocation ~ are conducted by a parole hearing examiner at a location near the parolee's residence or near where the violatioo is alleged to have ocaured. Such hearing; are usually held in the jail where the parolee is confined. Second, if probable cause is found to support an alleged violation, the parolee usually will be transferred to a state prison to await a ''final parole revocation hearing." The final revocation hcming is held to determine it; in fact, the alleged violation occurred, and if so, what action sbouId be taken (to revoke or reinstate parole). By smtuIe, final revocation hearing; may be conducted by more than one parole counnissioner, a single parole commissioner, or a delegated FPC Iqneseulative (usually a parole examiner). Ifconducted by someone other 1ban two or more commissioners, the role of the hearing officer is generally limited to gathering infonnation or fact-finding, by statute. However (similar to as they do concerning parole intaviews, as • discussed above), FPC roles and procedure directives delegate the lesponsibilities and authority of final revocation hearing officers into the realm ofadua1 decision-making. By FPC ndes and procedure directives, final revocation hearing officers not only gather information and conduct factfinding, but also are de1egafed authority to role on argwnent or other maaers presented at the hearing (such hearin~ are held like mini-trials, with wi1nesses, evidence presented, and 1be parolee may be Iqneseuted by counsel). Upon conclusion ofthe final hearing, the hearing officer makes findin~ of &ct and makes written nx:ommendations to be submiUed (later) to a panel of parole commissioners on whed1er parole should be revoked or not based on ''compt1eDlt substantial evidence" adduced at the final hearing. (If a panel of commissioners conducted the final hearing, which is seldom or never the case in pmcIice, then no recommendation is required, as they may make a ''final'' determination themselves.) Third, when the final hearing is conducb:d by someone other than a panel of parole commissioners (as is almost always the case). 1be hearing officer's findinp and recommendaIion(s) are I 17 Florida Prison· Legal Penpectives .; sent to the Parole Commission, which then holds a public ("openj meeting to, ~ to FPC rules and directives, approve or reject the findinp and recomrnendation(s) and make ajina/ detennination on the recommendation(s) on whether to revoke parole or not (and whether to reincan:erate or impose another authorized sanction). The major distinction in the above stages of the revocation process, as relevant to Erica Flower's second lawsuit, is that the preliminary and final parole revocation hearing; are not noticed nor open to the public; and are held in locations that (even if 1hey were open) are not easily or freely accessible to the public. Yet the Commission, when it meets after those two Itearinp to finalize the finding'i and recommendations, does open and notice their meeting to the public. (Of course, the parolee is &1ill inc:aIcerated awaiting the Commission's fina/ decision, and therefore cannot attend the public meeting.) And a augor problem with the Commission allowing the public to attend only the last meeting held, and not the preliminary, and especially not the "final" hearin~ in the revocation process, is that recent case law has held that the Commission cannot reject the competent, substantial evidentiary findinp, or nx:omrnendations based on same, that were made at a final revocation hearing. Tedder v. Florida Parole Commission, 842 So.2d 1022 (Fla. 1'1 DCA 2(03); and Ellis 1/. Florida Parole Commission, 911 So.2d 831 (Fla. l lil DCA 2(05). In other words, those findinp and recommendation(s) ore the final decision, are binding on the Commission, and the Commission's later open, public meeting is nothing more than a show to create an appearance that the revocation decision is being made within public view. . Unfortunately, for the Cammission, acoonfiog to Flower's seoond suit, it is welkstablished by Florida cowts that "one pwpose of1he government in the sunshine law was to prevent at . nonpublic meetinpthe aystal1imtion of secret decisions to a point just short of ceremonial aoceptanoe" at a public meeting. Town ofPalm Bek V. Gradison, 296 So.2d at 4TI. Also unfortunate forthe Commission, where the ~ and recommendation(s) made at the final hearing are DOW indisputably binding on the Commission, and are the de facto final decision, the revocation decision· is actually being made at a hearing which is not open to the public. Thus, such final revocation heariop are being held in violation of Article I. §24(b). Florida Constitution, and §§ 286.011 and 947.06, third sentence, Florida Statutes (2005). claims Flowers. Flowers seeks a declaration ftom the oowt finding that final parole revocation hearinS'i must be noticed and open to the public and be held in a IocaIion easily accessible to the public (her theory would appear to be equally applicable to "final conditional release revocation hearinp," as the FPC also acts as the Conditional Release Authority and the revocation process is the same for parole and conditional release). Flowers also seeks temponuy and penoaoent injWlCtions opening final revocation hearinp to her and the public. 18 -- ValidityofAdioDSTakeD ._ Neither Cantrell nor Flowers include a claim in their suits asserting that past parole interviews and hearinS'i offinal parole revocation hearinp (and any actions taken at same) were invalid for their failure to comply with open public meetinp taws. Although, for those who were directly affected by 1hose actions, that appears to be a viable legal argwnent that could be made.. It is established that the mere showing that open public meetinS'i laws have been violated coostituIrs "irreparable public injw)t." Town ofPalmBck V. Gradison, 296 So.2dat477. And any action taken in violation of open public meetinp laws is void ab initio. See: Turner 1/. Wainwright, 379 So.2d at ISS (parole revocation decisions made behind closed doors are void ab inition). Section 286.011, Florida Statutes, specificall) provides that 00 resolution, rule, regulation or fonnal actiot sball be considered binding except as taken or made at an opel meeting. Conclusion When the abovc.Hlob:d lawsuits were filed, FPLAO staff 01 the on the organiDtion's Parole Project ~ by sendinj separate news releases cooceming the suits to every Florida sta1J legislator, Gov.. Jeb Bush, and to over 30 news medii leplesen1atives around 1he state. As these cases progress through the court, updates aboo them will appear in FPLP.• Parole Commission Update • InmilJanuaJy '06lPLP &1affleamed tbattlr;, 9afe Legislafine WH.J NOf I\'l'01SDJ' IbIJe Bill 1899 (2OOS), 1hat \\WId have ~ leapnizaJ tIr;, Fbida Pmde CaIDII&D1, as ~ sfaled ~ intaxbI to cb during thS year's 1egSsIive sessicn lD &r, tbpD I1lIIIJf.IW; irKpJiries by lPIP 9aff: IegSatas have m given m1y I'tSJ btlr;,IeYemI1. • 00 1amIlIIy 13, 2006, tIr;, Fbida ParoJe ~ in 8AJII'tl 'os ~ 10 tIr;, lawUt filed in Sepr.ntlu by FJra FIowas (Se lPLP. Vol.ll.w;'Sard6,~ 141~publBledaNOOceofPlqxs Rule ~ intlr;,RatJaAdministtcthe W~ iIlfksing til tlr;,ap;y is planning10amema IlDFllllllberof"llSIU1esat0lqm'2 21, Fbida AdIninSnmYe Code. At tbat same time tIr;, FlC d pJbI&JedSlMlalN<D:esofPlqxmlRubnalcinggivingmUebtd ag.n:y imDk to repealllll11l1tlB aB1lBl (J' ~ ndes. C Febuary 10. 2006, tIr;, 0:xnmiIl0l pubIilIm ils fiml NcO.:e.1 PltlptmI RuIemaking oollcel1ling seam 23-21, FAC. Hawe\ll waital UntiJ FebuIIIy23 to havetlr;,FDOCJX!ltthatmUeWJemIBfJ ~ iJmBs alIkl see it in tIr;, )rims. This is tIr;, fllC's fiI mbnakiJg eX any me in <MI' 10 )alS. ~ it is IX> cbJtt d fllC's imaJt that un rolemakiog mw \WI poviIe we chairm Mrri=a DaviI adeti.ngeto Fbwtr's JlM5uit, it is Id~ to mal lIlY diftbaw Blo tIr;, cJaiJm in tbatsuit. On Marth 2FPlAO fib! rule d1aIbJF ~ tIr;, pqnul nde dJarJp in min 23-21. n will eftildivelysfopthatrolemakiog\Wiletlr;, IaM\Jils fJ)fi:rwmdII Florida ,PrisoDLe._. Penpeetives Florida Parole Parole Releases vs. Parole Revocations Owing the past several years there' has been a dJ'amati,c decrease in the number of parole-eligible prisoners being ., granted parole in Florida. Curiously, the number of parolees who have their paroles revoked and who have been returned to prisons had closely paralleled the number ofparoles granted until recently. The chart below is based on the fiscal periods shown. ImParolcd .Revocations I Florida Parole Parole Revocations Technical violations vs. New Offense Violations The majority of parole revocations of Florida parolees are for technical violations. Very few parolees have their paroles revoked for committing a new offense while on parole. Under Florida Parole Commission policies, even a Dunor violation of a technical condition of parole may result in revocation of parole and a return to priSon. This chart shows the parole revocations Jor the past thirteen years. , .' I_Teclmic:al VIOlations _NewOfl'cnsc I . 140 120 100 SO o eo I 40 95·96-97·98·99-00-01-02·03·04- . 96 97 98 99 00 01 02 03 04 05 Chart Values Fiscal Year Paroled Revoked 156 142 95-96 96-97 137 112 97-98 150 111 98·99 169 118 99.00 114 98 00.01 101 101 01.02 61 87 02.03 68 86 03·04 27 91 2,2 04-05 115 Prepared by the FPLAO Parole Project moc S1:aff Barbershops Closed It's been a dirty little secret that for decades Florida prisoners have been forced to perfonn personal services for prison employees, such as wash their cars. shine their shoes and boots, work in staff canteens, and work in unlicensed staff barbershops as unlicensed barbers cutting staff hair. In Dec. '05 FPLAO's Teresa Bums Posey began questioning fonner FDOC Secretary Crosby and other government officials about the legality of such practiCes. In particular, Chap. 476, Fla. Stat, requires all barbershops and barbers who cut any member of the public's hair to be licensed. On Feb. 23, '06 new FDOC Secretary James McDonOUgh ordered all staff barbershops closed. shoe shine operations ind" car washes shut down, and closed staff canteens in prisons state wide. If any of those activities are to resume. FPLAO will be working to ensure it is to prisoners', not staff, benefit Bums Posey bas served notice that she will file suit if the staff barbershops. are reopened without being licensed or with unlicensed prisoner barbers. . " . 2: ' , I tl\! i 92~3~4~5~6~7~8-99'()0'() 1·0M3.()4. 939495969798990001 02 03 04 05 ' Chart Values Fiscal Year Technical New Offense 92-93' 93-94 94-95 95-96 96-97 97-98 98-99 99.00 00.01 01-02 02-03 134 33 122 18 125 2S 129 13 103 9 105 6 109 9 88 10 95 6 79 8 81 5 03-04 87 4 04-05 112 3 Prepared by the FPLAO Parole Project Totals 167 140 150 142 112 111 118 98 101 87 86 91 115 .' .Parole Parole is a posl-prison supervision program where eligible , irimates have the tenns and conditions of parole set by the Florida Parole Commission. The period of parole cannot exceed Ihe balance ofthe offender's original sentence. Under parole, the offender is to be supervised in the community . under specific conditions. Parole supervision is 'provided by the,F1orida Department of Corrections. Although Florida no , . longer has parole except for those offenders sentenced for offenses committed prior to Oclober I, 1993. caseloads have increased. These increases are aUributed to other state cases, wJtic~ have transferred supervision to Florida. On June 30. 2005, there were 2,1.6I parolees in Florida (625 Florida cases and 1,536 other state cases). On June 30. 2005. there were 5.197 inmates in the Department ofCorrections'custody who were parole eligible. Florida Prison Legal Perspectives The following are summaries ofrecent stale andfederal cases that may be use/ul to or have a significant impact on Florida prisoners. Readers should always read the full opinion as published in the Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Fedua/); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F. 3d); or the Federal Supplement 2d (F.Supp. 2d), since these summaries are for general information only. . FLORIDA SUPREME COURT Logan v. State, 30 Fla.L.Weekly S706 (Fla. 10120/05) On review of the Second District Court of Appeal's decision in Lawrence Logan's case, Logan v. State, 846 So.2d 657 (Fla. 2d DCA 2003), the Florida Supreme Court concluded that the Second District's reliance on Smith v. State, 537 So.2d 982 (Fla. 1989), for its opining that a defendant who elects to be sentenced under the guidelines elects to be sentenced under the guidelines in effect at the time of the election is incorrect. In Smith, the primary holding was that the 1983 sentencing guidelines (which had been promulgated as procedural rules on September 8, 1983) were invalid; ~ .. however, it was held that the Legislature rectified the invalidity when it adopted the same rules by statute effective July I, 1984. In addressing the impact of that holding, the Florida Supreme Court determined that pursuant to Section 921.001(4)(a), Smith had the right to elect to be sentenced under the 1983 guidelines when he was resentenced in 1988. The Florida Supreme Court recognized that Smith was in a "unique posture" because his crime was committed before the effective date of the guidelines, July I, 1984, but his ~sentencing occurred afterwards. It was also recognized that the right to elect a sentence was a right granted by the Legislature. Section 921.001(4)(a) provided that "guidelines shall be applied to all felonies, except capital felonies, committed on or after October I, 2.0 1983, and to all felonies, except capital felonies, committed prior to October I, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions ofthis act." Similar to Smith, Logan's crimes were committed prior to July I, 1984. His original sentence was vacated on appeal, and he appeared for resentencing after July I, 1984. At his May 8, 2001, re-sentencing, Logan elected to be sentenced under the guidelines. The sentencing guidelines which were effective on that date expressly provided that the 1983 guidelines applied to Logan's offenses. Thus, pursuant to the expressed language of Section 921.001(4)(b)(I), Florida Statutes (formerly Section (2000) 921.001(4)(a», and consistent with Smith, the affirmative election entitled Logan to be sentenced under • the 1983 guidelines. Due to the erred reliance upon Smith, the Second District's conclusion that "[b]ecause Logan made his election in 200 I, he elected to be sentenced pursuant to the Criminal Punishment Code" is contrary to that code's expressed language. Section 921.002, Florida Statutes (2001), provides: "[t]he Criminal Punishment Code shall apply to all felony offenses, except capital felonies, committed on or after October 1, 1998." Logan's offenses were committed in 1984. The pertinent date is the date of the offense, not the date of sentencing. As a result, the Second District's decision was quashed and Logan's case was remanded to the district court for proceeding: consistent with the Florida Supreml Court's opinion. In Re: Amendments To The Florid Evidence Code-Section 90. J04, 31 FIa.L.Weekly S701 (Fla. 10120/05) The Florida Bar Code 1m Rules of Evidence Committe recommended, and the Florid Supreme Court adopted, a amendment to section 90.104(1 )(t of the Florida Evidence Code nwI by chapter 2003-259, section I, La" ofFlorida. The amendment eliminates the need' of a trlE objection in order to preserve a evidentiary issue for appeal when til trial judge has made a definiti~ ruling on the admissibility of tl1 evidence. It was explained that tl1 amendment would reduce tl1 number of motions fi postconviction relief filed undl Florida Rules of Criminal Procedw 3.850. Also, it was pointed out till the change is consistent with c~ made to Federal Rule of Eviden, 103(a)(2) in 2000. Furthermore, ti change eliminates the problem c "inadvertent waiver" that preclude an appellate court's consideration c an erroneous ruling at trial. The"ien v. State, 30 FIa.L.WeekI S72S (Fla. 10127/05) John Richard Therrien's C8l presented the Florida Supreme Coo with an issue of whether a persc may be designated a sexual predatl when the offense triggering tI designation became a qualifyil offense for sexual predator stab only after the person was sentenced. Florida Prison Legal Penpectives When Therrien was sixteen- . years-old he had committed a sexual , battery and lewd and lascivious assault upon a nine-year-old girl. He was prosecuted as an adult, pleading to Count One's lesser-included offense of attempted sexual battery by a person under eighteen on a person under twelve and to the original count of lewd and lascivious assault In August 1997, Therrien was sentenced, where his trial court withheld adjudication of guilt on both counts and imposed a sanction of probation for five years, conditioned on an eleven month and fifteen day suspended county jail sentence. The .offenses Therrien pled to did not qualifY him as a sexual predator at the time of his seatencing. See: Section 775.21(4Xc)' Fla. Statutes (Supp. 1996), which became effective July I, 1996. However, the Legislature amended the statute subsequent to Therrien's sentencing. incorporating as qualifying offenses to include such crimes, as he was found guilty. See: Ch. 98-81, sec. 3, at 591, Laws of Florida, codified at sec. 775.21 (4)(c)(I)(b), Fla. Statues (Supp. 1998), and Ch. 2000-207, sec. I, at 2052-53, Laws of Florida, codified at sec. 775.21(4)(a), Fla. Statues (2000). More than three years after Therrien's sentencing. due to the amended statutes, the State sought and was granted by the trial court to have Therrien designated as a sexual predator in October 2000. The designation was affinned on appeal. ' The Florida Supreme Court, in its review of the case, basically pointed out the plain clear language of the statutes involved. The statutes were quoted in pertinent parts, where it was read that "[t]or a current offense committed on or after October I, 1993, upon conviction, an offender shall be designated as a 'sexual predator' under subsection (5)" if the felony is one of a number of specified crimes. Then further, in subsection (5)(a), "An offender who meets the sexual predator criteria described in paragraph (4)(a) who is before the court for sentencing for a current oJfinse committed on or after October /. /993, is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator, and the clerk of court shall transmit a copy of the order containing the written finding to the departmerit within 48 hours after entry of the order..." The quoted language above was included in a revision that became effective July I, 1996, and remained the same through the amendments in 1998 and 2000 where the specified crimes were changed by adding other included those offenses that committed by Therrien. Given the statue's plain and ordinary meaning. the provision requires an offender both meet the eligibility criteria and be before the court for sentencing on a current offense committed after October I, 1993. When the trial court designated Therrien a sexual predator in October 2000, Therrien was not before the court for sentencing. In conclusion, it was held that a trial court is without jurisdiction to impose sexual predator designation on an offender who, under the law in effect at the time of sentencing. did not qualifY as a sexual predator. Thus, the Florida Supreme Court quashed the appeIlate court's decision· affirming the trial court's order and remanded Therrien's case for proceedings consistent with its opinion. ,FLORIDA APPEAL COURTS Williams v. State, 30 Fla.L.Weekly 02304 (Fla. 4lh DCA 9/28/05) Avery Williams' argument on appeal regarded a trial court preventing his defense counsel from exploring motive or bias of the State's witness during trial. Williams was convicted of burglary of a structure with a battery. Tbe crime arose after Williams entered an enclosed car repossession compound, attempted to steal a car, and was confronted by the owner, Edward Leb. That confrontation led to a physical altercation. During trial, the defense's attack on Leb's credibility hinged on unrelated criminal charges that were pending against Leb at the time of the altercation with W'dliams. Some of those charges were still pending during Williams' trial. It was the defense's theory that Leb lied about his altercation with Williams, and what Williams had done before the fight, to minimize his own potential criminal exposure. Williams' counsel crossexamined Leb about his pending charges. However, the trial court prevented the defense from asking Leb whether he knew that his existing bond would have been revoked had he been arrested for the incident that occurred with Williams. The appellate court opined that such line of questioning was proper since it went to the motive behind Leb's initial report of the incident to the police. For that, it was opined that the trial court abused its discretion in limiting the crossexamination ofthe victim. The appellate court further explained that a second, more significant problem occurred during closing argument when the trial court sustained objections that prevented defense from arguing that Leb was the true criminal, having attacked Williams, and that Leb fabricated his story to avoid getting in further trouble on top of his existing charges. Because one of the officers who responded to the scene saw Leb with a shock absorber in his hand standing over WIlliams and holding him to the ground, there was a basis in the evidence for defense to argue that Leb was the aggressor. As a result, Williams' case was reversed and remanded for a new trial. I 2.1 Florida Prison Legal Perspectives ., Gibson v. State, 30 FIa.L.Weekly D2305 (pIa. 4dJ DCA 9128/05)' On appeal, Dontay Laver Gibson argued that his trial court erred in allowing, over objection, expert testimony regarding the statistical probability of a DNA match where State's expert lacked knowledge of the database and the statistical method used. The appellate court explained, in Florida, DNA testing requires a two-step process, one biochemical and the other statistical. See: Butler v. State, 842 So.2d 817, 828 (pIa. 2003). Both steps must satisfy the Frye test for validity. In Gibson's case it was the statistical analysis employed that was at issue. As to that analysis, a properly qualified expert must testify as to the qualitative or quantitative estimates demonstrating the significance of the DNA match. The qualified expert must demonstrate a sufficient knowledge of the database grounded in the study ofauthoritative sources. In a similar case, Perdomo v. State, 829 So.2d 280 (pIa. 31ll DCA 2002), the defendant objected to the DNA expert's qualifications to testify as to the statistical analysis of Jhe DNA match arguing that he was not a statistician or a mathematician. The court sustained the objection pending the state's showing of a predicate for the admission of the testimony. In Gibson's case, the court did not even require a predicate from the state before overruling Gibson's objection. In Perdomo it was held that the state must prove by a preponderance of evidence that an expert testifYing about DNA statistical .and population genetics analysis has sufficient knowledge of the database grounded in the study of l\uthoritative sources. Like in Perdomo, the expert in Gibson's case never identified, much less displayed, sufficient knowledge of the database or method she used for the statistical componeni of her opinion. At no point did the expert explain what method she used, 2.2. nor did she demonstrate· any knowledge of the authorities pertinent to the database. Only by way of an example, the expert merely testified that the "formula" used in the calculation of the statistics used in the case was one reoommended by the National Research Council. The appellate court deemed that this was insufficient. Following the Perdomo court, the appellate court opined that the matter must be remanded for a limited evidentiary hearing to determine whether the expert had sufllcient knowledge of the authoritative soun:es to present the . statistical evidence. King v. State, 30 Fla.L.Weekly 02297 (Fla. 2d DCA 9128/0S) Regarding claims of erroneous sexual predator designations, the Second District Court of Appeals has opined that challenging such claims in a civil proceeding has not proven ~ be a workable mechanism to resolve them. The. Second District is convinced that the approach taken by the Fifth District is more appropriate. See: Nicholson v. StlJte, 846 So.2d 1217 (Fia. S· DCA 2003), and Cobrera v. State, 884 So.2d 482 (Fla. S· DCA 2004). In those cases, the sexual predator designation was treated as an order that can receive appellate review and posteonviction challenge as if it was a sentencing order. Thus, the Second District has receded from its numerous prior opinions regarding such claims. The Second District went on to explain, to awid corifusion in the matter, a sexual predator designation: (I) may be imposed or modified after sentencing without regard to the time limits established in Rule 3.800(c); (2) may be directly appealed as a portion .of a sentence under Rule 9.l40(bXI)(E); (3) may be directly appealed under Rule 9.l4O(bXl)(D) if it is entered after the time to appeal the judgment and sentence has expired; (4) may be challenged under Rule 3.800(b) in order to preserve the issue for direct appeal; and, (5) may be challenged like a sentencing issue by postconviction motions pursuant to Rules 3.800(a) and 3.850. A party in the Second District should no longer file any civil motion or proceeding to challenge a sexual predator designation. However, because the Fourth District has followed the prior opinions the Second District has now receded from, the Second District was compelled to certify direct conflict with the Fourth Distric1 regarding the issue. Kepner v. State, 30 Fla.L.Weeki) D2299 (Fla. 41b DCA 9128/05) On appeal, Mark A. Kepnel argued that his trial court erred it fiilling to renew its otTer 'oJ appointing assistance of COURSe prior to sentencing. Apparently, Kepner hal chose to tum down the trial COurt'l otTer of assistance of counsel prior tc the trial proceedings, and Kepnel represented himself. However, tIu trial court did not renew the assistance of counsel offer prior tc sentencing. The appellate cour opined that this was error. Rule 3.111(dX5), Floridl Rules of Criminal ProcedUJ'll provides that an otTer of assistance 0 counsel shall be renewed by th court at each subsequent stage of th proceeding at which the defenda11 appears without counsel. "Even if I defendant does not reques appointment of counsel, thi omission [by the defendant] is n(l considered a knowing waiver of tb right to counse"" See: Hanly" State, 6SS So.2d 1245, 1247-124l (pia. Sib DCA 1995). As a result, Kepner'! sentencing was reversed 8I1l remanded for resentencing. Ford v. State, 30 Fla.L.Weekll D2434 (Fla. 2d DCA 10/19/0S) Henry Ford had tiled a Rul 3.8S0 motion within his circuit cow alleging newly discovered evi~ Florida Prison Legal Perspectives Subsequently, the lower court applied a standard used for evidence discovered after a defendant has been convicted at trial and denied his motion. However, Ford's convictions were a result of pleas. Therefore, on appea~ the appellate court opined that "the circuit court should have applied the more appropriate standard for withdfawal of pleas after sentencing, Subsequent to an evidentiary hearing, Maxime Julien appealed the denial of his claim of ineffectiv~ assistance of coWlSel in failing to inform him of his option to apply for the Pretrial Intervention Program (PTI). A first-time offender, Julien pled guilty to grand theft and was placed on probation. As a result of his plea, the United States which requires the defendant to prove that withdrawal of his plea is necessary to correct a manifest injustice... See: Bradford v. Stote, commenced removal 869 8o.2d 28, 29 (Fia. 2d DCA 2004). The appellate court further explained, as it was in the Bradford case, Ford's motion. was facially insufficient because it failed to allege that plea withdrawal was necessary to correct a manifest iqjustice. Ac:c:ordingly, the trial court's denial was affirmed without prejudice to Ford's right to file a timely, facially sufficient Rule 3.850 motion to withdraw plea based on his newly discovered evidence. Cole v. State, 30 Fla.L.Weekly D2467 (Fla. 5111 DCA 10121105) Jeffrey Allen Cole filed his RuleJ.8S0 motion in the Citrus County Circuit Court which was subsequently denied as being a successive motion. The lower court further directed the Department of Corrections (DOC) to forfeit 90 days of Cole's gain-time. Cole appealed the decision. In affirming the denial of Cole's motion, the' appellate court further opined that a trial court is not authorized to direct QOC to forfeit any amount of gain-time as a sanction. A trial court can send a certified copy to DOC of an order showing that the prisoner has filed" a frivolous or malicious pleading and recommend a sanction. The order that directed DOC to forfeit the gain-time was stricken. Julien v. State, 30 Fla.L.Weekly D2438 (Fla. 46 DCA 10/19/05) .p~ to rescind Julien's permanent residence status and remove him to Haiti. Subsequent to his filing for postconviction relief, a lower court granted an evidentiary hearing on Julien's ineffective assistance of counsel claim. At the hearing, although: Julien testified that his coWlSel failed to advise him of the PTI program and that he would not have entered the guilty plea if he had been aware of the program and would have applied for it; Julien's interpreter testified he never heard coWlSel discuss the PTI program; and the Public Defender that represented Julien testified he might not have discussed the PTI program with Julien and that he did not have a general habit in doing so with his clients, the lower court denied Julien's postconvictioti relief motion without stating any reasons. Florida Rule" of Criminal Procedure 3.17I(c)(2)(B) places a responsibility upon defense counsel to 'advise a defendant of all plea offers and, "all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well' as any possible alternatives that may be open to the defendant." (Emphasis added) It was noted also that Mickey Rocque, a trial lawyer and law professor~ testified as an expert in the area of criminal law at Julien's evidentiary hearing. 'Rocque was very familiar with the PTI program because he helped draft the current PTI statute. He had explained· that the PTI program is a possible alternative available to a first-time offender. For a first-time offender facing immigration consequences, the program is criticaJ. A defendant derives a tremendous benefit by having his charges dismissed after completing the program. After the appellate court considered all the factors before it, it concluded that the defense counsel's failure to inform Julien of this possible alternative constituted a deficient performance. Furthermore, the appellate court agreed with Julien that he sufficiently met the Stric/dand v. Washlngron, 466 U.S. 668 (1984), prejudice prong by ,demonstrating a reasonable probability that, but for counsel's error in failing to advise him of the 'PTI alternative. he would not have pleaded guilty but instead would have applied to the PTI program. As resuh of the appellate court's findings, the denial of Julien's motion for postconviction relief was reversed and remanded with directions to give him the opportunity to withdraw his plea. Macaluso v. State, 30 FIa.L.WeeIdy 02494 (Fia. 2d DCA 10128/05) The Second District Court of Appeals stressed an important point that must be followed to file .a filciaUy sufficient Rule 3.8OO(a) motion that attacks the lePJity of a habitual, felony offender (HFO) sentence. (See also Rule 3.800(a) motion article in this FPLP). The defendant, when he filed his Rule 3.800(a) motion in this case; merely alleged that his prior convictions in the record's prosentence investigation report did not establish the required predicate for sentencing him as an HFO. A facially sufficient attack , requires the defendant to the predicate prior convictions do not exist as a matter oflaw. See: Bover v. State, 797 8o.2d 1246, 1247 (FIa. 2001). See also: Judge v. State, 596 affirmatively allege that So.2d 73, 78 (Fla. 2d DCA 1991) ("[W]e conclude that a habitual offender sentence is illegal for 2.3 Florida Prison Legal Perspectives purposcs of rule 3.800(a} only if...a prior offense essential to categorj;,·"c the defcndant as a habitual offendcr docs not actually exisL") Although the defendant in this case failed to file a facially sufficient motion in thc lowcr court, in the appellate court it was opined thai the lower court erred in dcnying the Rulc 3.800(a} motion wilhout determining the facial sufficiency before ruling on its merits. Therefore, the denial was reversed and the case remanded with instructions for Ihe lower court to enter all order of dismissal. [Note: From an order of dismissal, the defendant should have the opportunity to file a facially under Rule sufficient motion 3.8oo(').J Muhammad v. Crosby, 30 Fla.L. Weekly 02552 (Fla. III DCA lin/OS) Akeem Muhammad appealed a denial of his petition for ....Til of mandamus/certiorari wherc hc had requcsted a lower court to direct James Crosby, Jr., Secrclary of the Department of Corrections, to refrain from enforcing a prison rulc that requires him 10 be clean-shaven. Muhammad explained that thc rule has placed a substantial burden on his exercise of Islam, which is prohibited by Chapter 761, Fla. the (Fla.) Religious Statutcs, Freedom Rcstoration Act of 1998 (RFRA). The DOC rulc lhat was at issuc in this case requires inmatcs to be clean-shaven, and to submit to forced shaving if lhey refuse. Because Muhammad had refused to comply with the rule, he was sentenced to 30 days of disciplinary confinement, forced shaving, and loss of gain-time. This discipline was upheld on administrative appeal and Muhammad continued to be subjected to forced shaves. When Muhammad filed his petition, the lower court placed a $280 lien on his prison account to 24 I cover the filing fee, pursuant to Section S7.0SS(S}, Fla. Statutes (2004). However, the lower court had denied Muhammad's petition. The reason given for the denial was that Muhammad should have made his request in an aClion for declaratory relief. On appeal, it was noted first that Section 761.03(1), Fla. Stlltutes (2004), providcs that the government "shall oot substantially burden II person·s exercise of religion, even if the burden results from a rule of gener:'!1 applicability." Section 761.02(3}, defines "exercise of religion" as "an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger systcrn of religious belief." Muhammad, being a Muslim, asserted that Islam commands male adherents to wear a beard the size of a fist or the next shorter length possible. Contrary to the lower court's denial, the appellate court opined that mandamus was fhe appropriate vehicle for Muhammad to attempt to show the circuit court that DOC's grooming policy substantially burdens his free exercise of religion in violation of Section 761.03. See, e.g., Henderson v. Crosby. 891 SO.2d 1180 (Fla. 2d DCA 2005). See also: Sc1ullidt v. Cru.me, 878 So.2d 361, 363 (Fla. 2003) (observing that when a court must interpret :'! relatively new statute 10 detennine whether the petilioner has a clear legal right and respondent has a clear legal duty under the statute, Ihis "does not make the right any more or less 'clear'" for purposes of mandamus relief). As a result, the appellate court determined to direct the lower court to address the merits of Muhammad's claim under Chaptcr 761. [In nole 2 it was depicted that although the lower court is without jurisdiction to prohibit DOC from cutting Muhammad's beard for religious reasons, because courts are not authorized to regulate treatment of inmatcs, the court does have jurisdiction to consider his challenge to the validity of DOC's shaving regulation on religious grounds. See: Moore v. Habibullah, 759 SO.2d 1281 (Fla. SdI. DCA 1999); and Sing/elary v. Duggins, 724 SO.2d 1234 (Fl•. 3d DCA 1999).1 The appellate court in MUMmmad's case also cited a California case, Maywealhers v. Terhune, 328 F.Supp. 2d 1086 (E. D. Cal. 2004) (holding that the Ca\ifornia State Prison regulation requiring inmates to be clean-shaven was not the least restrictive means for achieving a compelling governmental interest, and thus violated Muslim inmates' religious rights under the federal counterpart ofRFRA). In regards to the lower court placing a lien against Muhammad's prison account, the nppellatc court opined that such an order was error because. Muhammad lost gain-time as a consequence of his refusal to shave. Under Schmit, M., any challenge to discipline that results in loss of gain-time is a collateral criminal proceeding. See: Section 57.085(IO}, Florida Statutes (2004). Regarding the aforementioned issues, the appellale COur1 reversed and remanded Muhammad's case for further proceedings consistent with its opinion. PoliCon v. Slate, 30 Fla.L. Weekly D2S33 (Fla. 4· DCA 1112105) Osvaldo Palazon did not receive a final hearing when his conditional release was revoked because an allomey that had represented him faxed a letter to the Parole Commission stating Pala.zon waived the hearing. In a petition for writ of habeas corpus filed with the circuit court, Palaron maintained that he did not waive his right to a final hearing. nor did he authorize anyone else to do so in his behalf. The lower court denied Palazon any relief and he sought review of the denial in the Fourth Dislrict Court of Appeals. In reviewing the denial, the Fourth District treated Palazon's case Florida Prison Legal Perspectives as a petition for writ of certiorari seeking review of an order from the circuit court denying Palazon's petition. It was pointed out in this review Section 947.141(3}. Florida Statutes (2004) provides that if a releasee is charged with violating conditional release. the releasee must be afforded a hearing within 45 days after notice to the Parole Commission of the releasee's arrest Also. Florida Administrative Code. Rule 23-23.011(4)(c). states that a conditional release violation hearing "may be waived by the releasee after an explanation of the consequences of a waiver. The waiver shall be executed before a Commissioner or duly authorized representative of the Commission. Furthermore, in State v. Upton. 6S8 So.2d 86 (Fla. 1995). it was held that a lawyer's written waiver is insufficient to waive a defendant's right to a jury trial. The concern about such a waiver was that it must be entered knowingly and vo\untarily. FAC, Rule 2323.01 I (4Xc)' embodies similar concerns. Consequently. the circuit court's denial order was quashed, and Palazon's case was remanded for the Parole Commission to conduct a final hearing on Palazon's violation of conditional release. Ranes v. State. 30 FIa.L.Weekly D2533 (Fla. 4lb DCA 11/2/0S) Andrew Ranes appealed a trial court's denial of his petition for writ of habeas corpus. The reason given for the denial by the trial court was a finding that the petition was impermissibly successive because Ranes had filed a previous petition seeking the same relief. However. the previous petition was denied as legally insufficient, it was not denied based on the merits of Ranes' claim. Ranes alleged in the petition that he had retained counsel to file a postconviction motion, but counsel failed to do so. See: Fla.R.Crim.P. 3.850(b)(3). and Steele v. Kehoe. 747 So.2d 931 (Fla. 1999). The appellate court found that the trial court denied Ranes' petition as successive in error. because the trial court had not ruled on the merits of the case when it denied Ranes' first petition. Also. the appellate court opined that based upon the copies of letters Ranes included in his initial brief showing his attorney's intentions to file a postconviction . motion. Ranes' petition adequately set forth a claim for relief under Steele. Due process entitled Ranes to a hearing on his legally sufficient claim. The trial court's denial was reversed and Ranes' case was remanded for an evidentiary hearing. Cillo v. State.' 30 Fla.L.Weekly D2S56 (Fla. 2d DCA 11I9/05) On appeal. Frank P. Cillo challenged a lower court's denial of his second-time-around (successive) Rule 3.800(a} motion, where he claimed that his sentence was illegal because it exceeded the statutory maximum. Apparently, Cillo had filed a previous motion raising the same issue, and it was denied and affirmed in the appellate court. See: Cillo v. State. 884 So.2d 29 (Fla. 2d DCA 2004). Thus•. the lower court's reason for denying the second-timearound motion. Originally. Cillo was convicted of three second degree felony offenses. The lower court sentenced Cillo to three concurrent terms of 12.75 years prison followed by two years of community control and thirty years of probation, a total of 44.75 years. Cillo argued that because the offenses were second degree felonies, run concurrently, the maximum sentence he could receive was fifteen years unless the sentences were imposed consecutively for a total of forty-five years. .In denying Cillo's claim, the lower court reasoned that because the lowest permissible sentence of 12.7S years. according to Cillo's scoresheet, did not exceed the statutory maximum of forty-five years. the lower court was within its discretion to sentence Cillo to 44.7S years. Typically. Cillo's claim would have been collaterally estopped. However. the ~econd time-around in the appellate court the State conceded that Cillo's sentence was illegal and the appellate court was compelled to correct a manifest injustice. See: McBride v. State. 848 So.2d 287. 292 (Fla. 2003) ("[C]ollateral estoppel will not be invoked to bar relief when its application. would result in a manifest injustice.ttl. The appellate court opined that CiIlo's sentence. which included the pris,?n portion as well as the community control and probation portions cannot exceed the statutory maximum of fifteen years. A sentence of incarceration and probation cannot exceed the maximum period of incarceration provided by law. unless the lowest permissible sentence under the criminal punishment code exceeds that statutory maximum. The lower court's denial was reversed and Cillo's case was remanded for resentencing. Kahane v. State. 30 Fla.L.Weekly 02645 (Fla. 4th DCA 11/23/05) . Michael 1. Kahane. after being prohibited from filing any further pro se filings in connection with his St. Lucie County case, filed a Rule 3.800(a) motion regarding his incarceration in a Martin County case. The Martin County Circuit Court struck the pleading because of the ordered prohibition from the other county's court. On appeal, it was noted that such an order of prohibition was not entered in the Martin County Circuit Court case. Regardless of that notation, the appellate court opined that if Kahane filed a legally sufficient Rule 3.800(a) motion, the circuit court shall consider that motion on the merits. I 2.S Florida Prison Legal Perspectives Accordingly, the Martin County Circuit's order striking Kahane's motion was reversed. I U t 'I Guide offers assistance to transitioning veterans Veterans leaving prison will find help for the transition with "Planning for Your Williams v. State, 30 Fla.L.Weekly Release:' a guide for incarcerated veterans 02569 (Fla. 4th DCA 1119/05) On motion for rehearing, the offered by the National Coalition for Fourth District Court of Appeal .' Homeless Veterans (NCHV). withdrew its prior opinion in Daryl Williams' case. (Original opinion is at 30 FIa.L.Weekly DI249i.) In substitution of that opinion, the Fourth District affirmed the denial of Williams' Rule 3.800(a) motion, which claimed that his written sentence does not conform to the lower court's oral pronouncement. It was noted by the Fourth District that Williams' motion was unsworn where it had claimed that the judge sentenced Williams to eleven years but the written sentence depicted fourteen years seven months. It was also explained that the reason for its affirmation, no attachments, such as transcript of the sentencing proceeding, were inclUded. Thus, the appellate court certified conflict with Fitzpatrick v. State, 863 So.2d 462 (Fla. III DCA 2004), and Berthiaume v. State, 864 So.2d 1257 (Fla. Sib DCA 2004). It was then concluded that a mere allegation of a difference between the oral pronouncement and the written judgment is insufficient to comply with the Rule 3.800(a), FIa.R.Crim. Procedure. Therefore, the Fourth District also certified conflict with Watts \I. State, 790 So.2d 1175 (FIa. 2d DCA 2001), as to the issue of whether a mere allegation that a written sentence does not comport with an oral pronouncement is sufficient to raise a Rule 3.8oo(a) claim. It was further noted that, unlike Rule 3.850(d), Rule 3.800(8) contains no requirement that the trial court attach portions of the record that conclusively refute the allegations of themotion. • 26 I The 24-page booklet details resources specifically available to veterans as well as those for both veterans and nonveterans. It covers NATIONAL housing, finding and keep- COALITION ing a job, health. substance for abuse and mental health BOHELIlSS treatment, financial and VETERANS legal help, and women veterans. Toll-free numbers and addresses are included. In addition, the booklet explains federal benefits available to veterans and how to pursue them. T y,:P I, N"G . S·ER:VICE· Computer .. ALL KINDS TYPING ....,OF -, Including but ~II"'-ltedto: .. ",Srlefs,'JeX\·Ooc:uments. .Newsletlers.,Artfcles, Books. .ManuscDPtS.Oatabase. Charts. Fonns; fIYe.:s~EnveIOpes. ETC. Black'! ~olor PI:Intlng&. Copying ''''P€S''.'' BAljSfQBeRIIQNfR'" FoRA."_~PRI~U~T'AND MORE INFORM.(\TJON SEND A . SASE TO: LET M Y.FI NG ER S D·O YOUR TyprNG' " To receive the booklet. ask family or friends to download it for you from the NCHV website. www.nchv.org; call (202) 546-1969 or 800.VET-HELP; or write NCHV. 333 1/2 Pennsylvania Ave. S.E., Washington, DC 20003-1148. [ __ .on Typewrlte~ '. ," sandraZ. ThonIas POlloi 4178'· ~r Pm,FL 32793-4178, , Phent: 401-57N563 . --CORRECTION... 1 page 8, an article entitled "Closing the DNA Exoneration Door" was published. That article . discussed the (then) scheduled October 1, 2005, expiration of 8 200I Florida court role that provided a ~ 4-year window to Florida prisoners to petition the ~ courts for DNA testing to prove their innocence-if ~ they took their cases to trial. However, on Sept. 29, ~I three days before the window was set to expire, the Florida Supreme Court .amended the role, 3.853, Fla. , R. Crim.P., to delete the 10/1/05 time limit and ~ changed to 7/1/06. Thus, extending the time allowed to petition for DNA testing for 8 months. The extension came when the Florida Bar moved/proposed that the time limit be stricken all together. The S. Ct. made the amendment to give it time to consider the Barts· proposal. See In Re: Amendment to FIa.R.Crim.P. ~ 3.853(d). 30 Fla. L. Weekly S661 (Fla. 9/29/05). ! I , I [EdItor's Note: Legislation bas been prefiled for the = 2006 regular legislative session that, if passed and , made law, would completely remove the time limit on a L~~~,",~:L!«..-.. •• __---I Florida Prison Legal Penpectives BUDGET BUDGET DEPARTMENT OF CORRECTIONS BUDGET SUMMARY (FY 2004-05) Operating Funds Expenditures by Budget Entity: Departme.nt Administration Security and Institutional Operations Health Services Community Corrections Infornlation Technology Programs Total Operating Funds " ' :~ ~ . S 58,729,772 1,202,002.591 . 315,486,894 , 243, J72,469 . 23,322,664 . .. 42.986.848 .. $1.885.701,238 Fixed Capital Outlay Funds To Provide Additional Capacity , To Maintain Existing Facilities Total Fixed Capital Outlay Funds Total S 80,193,036 2.868.834 S 3,061.870 SI,968,763.108 Local Funds Collection Activities: Cost of Supervision Fees ' Restitution. Fines, and Court Costs .'; Subsistence, Transportation, and other Coun-Ordered Payments Inmate Banking Activities: Total Deposits Total Disbursements June 30. 2005 Total Assets Other Activity: Revenue from Canteen Operations Inmate Telephone Commissions .. $27,061.99\ . 57.956.233 .. 19,782.796 .. : . . $85.009,685 85.545.563 9.676,057 . . $20.986.632 16,335,212 Florida Prison Legal Penpectives FLORIDA DEPARTME~T OF CORRECTIO~S BUDGET FY 2004-05 Correctional Budget Total Expenditures $ 1,885,701,238 Department Administration $58,729,772 (3.1%) Information Technology $23,322,664 (1.2%) Health Services $315,486,894 (16.7%) Community Corrections $243,172,469 (12.9%) Security and Institutional Operations $1,202,002,591 (63.7%) Programs $42,986,848 (2.3%) Inmate Cost Per Day for FY 2004-05 $49.61 ($18,108 annually) (Major Institutions Only) Security $29.23 (58.9%) Physical Plant $3.34 (6.7%) Medical $10.62 (21.4%) Insurance $0.13 (0.3%) Education $0.99 (2.0%) Inmate Services $0.71 (1.4%) Clothingl Laundry $0.51 (1.0%) Florida Prison Legal Perspectives .. FLClRIDA DEPARTMEXT OF CORRECTlO~S BUDGET Sumlnary ofAverage Inmate Costs (FY 2004-05) TYPE OF FACILITY . AVERAGE TOTAL HEALTH EDUCATION POPULATION PERDIEM OPERATIONS SERVICES SERVICES 78.737 TOTAL ALL DEPARTMENT FACILITIES (EXCLUDING PRIVATE) (3) TOTAL MAJOR INSTITUTIONS lEXCLUDING PRIVATE)' 'S~~');~';i" ;.\C Ai . ~--~ , ;,', 549.60 18:6431,: /;. $49;6~, ' " $37.71 $10.66 $1.23 ":,sauo $10.67 ,51.23: 44,456 ' $40.92 $34.27 $5.62 $1.03 MALE YOUTHFUL OFFENDER CUSTODY 2,870 $57.97 $46.88 56,79 $4:30 RECEPTIONS CENTERS 6,617 $85.57 $45.70 S39.07 SO.80 ADULT AND YOUTHFUL FEMALE CUSTODY (2) 4,043 $62.10 $42.90 $16.92 52.28 SPECIALTY INSTrn.'lIONS 18,247 555.63 $41.78 $12.58 $1.26 WORK RELEASE CENTERS 2,410 534.50 $28.58 $5.46 50,46 PRIVATE INSTITUTIONS (i) (3) . 4,309 $55.39 $54.94 $0.45 $0.00 93 $43.42 $43.42 SO.OO $0.00 ADULT MALE CUSTODY (1) PROBATION AND RESTITUTION CENTERS'& BRADENTONDTC These lacililiCl' cxcludc dcbt servicc COS1~. \,.. hieh if includcd \\'ould increase Ihc de!':tnmc11l', avcrage ma,illr il\~lill1lion I'cr dicm b~ 50,1 ~ and the pri\'ute in~tilution~' per diem by 54. 7~, " (2) !\Is(' ~cl'\inl! as reccplion eCt1lerl' tBrowurd CI and Lowcll Cllior female inmales. l:t) Per diclIllil.lurCl' du not includc indirect and administration eosts of $4.39 lor major institulions (,OpcnJti(\lls 52.21, health ~el'\ices StU I. 'cdUeali(\l; 50.22. sullstanec abuse $0.04. and dcpartmclltal administration 51.61). and SO.!!~ for private institllliuns. NOTE: AdministrJlion cvsts equal 3.06% of\tllal Depanmenl cxpcnditurel'. III Inmate Cost Per Day by Type of Facility $90 $SO 570 ; a.....,..:aiQ.~.~~ $60 $50 $40 $30 $20, $10 ; ~ 'AQlI I'lMIt Malt IlISL ~bJr AlIl:ItJID Sprda/l) Rm¢m> \'oatW FcaU IIIIL C,1ilm OtTtlldtr . Percent of'State General Revenue Budget Appropriated to Corrections 8.0% 8.0% 7.9% 7.9% 7.8% 7.8% 7.7% 7.7% 7.6% 7.6% 99-00 00-01 01-02 02003 03-04 04005 , 29 Florida Prison Legal Penpeetives - INMATE POPULATIO~ ON JUNE 30, 2005 • There are 20,568 more inmates in Florida p~s~~:s:~~ay,;~han there were 9 years ago. Inmate Population I 1917 1956 as:of jUne 3Oth of E~ch Year 1. 1. 2OlIO 2001 2002 2003 2llO4 2005 64,333 64.713 86,210 '81m 71,233 72,007 73.553 n,318 8t,974 84,801 10,782 61.212 11.7. l4.1li 17,214 87782 69,164 72,520 78875 79,221 3,551 3,431 U12 :3,833 4,011 4,245 4,381 4.796 5,299 5.610 Whito 28,988 27,518 21.235 2llAOS SO,8ll4 31,308 32,384 34.588 36,935 38.874 Black 38.1110 35.174 38•• 31.718 38,179 38,852 39,239 40.583 42,572 43.308 Othor 1.245 1,321 1.m 1,478 UIO 1,147 1,930 2,145 2,467 2.721 White Males 25,437 26,048 a.m 27.118 2ll,ll94 28,373 30,383 32,244 34,202 35,713 Black Malos 34,123 34.014 34.m 3S.I24 38,152 38,784 31,121 38,412 40.251 40,114 OthllrMlIles 1,222 1,2Z0 1.258 1.324 1.488 1805 1880 1,864 2,214 2,444 While Females 1,551 1,470 1,S04 1,517 1. 1,935 z.001 2,344 2.733 3,081 Black Females 1,177 1,S1O 1.nt UN 2,027 2,081 2,118 2,171 2,313 2,322 Other Famalos 23 '101 ·m 112 182 242 270 281 253 m JOTAL I GENDER BREAKDOWN Males Fema18s RACE BREAKDOWN RACEIMALES BREAKDOWN lRACEIFEMALES BREAKDOWN Summary of Florida State Correctional Facilities Correctionallnstitutions* ** Work Camps, Stand Alone WorkIForestry Camps Treatment Centers Work Release Centen Road Prisons Total Facilities Contract Jail Beds Population Total • 30 I 59 6 71,702 84.5% 10,031 11.8% 84 0.1% 2,630 412 84,859 42 84,901 3.1% 0.5% 100.0% 0.0% 100.0% 37 35 2 1 1 26 19 ° 5 5 '1l3 128 7 0 15' Insliluliuns wilh 5C1"~r:lle unil~ nnd hospilllis nre tounted l1lO one tll$lilutlon. 1ltC!lC inSlilution~ lire Apalachec: Ensl and West unit~; CI'RC Main. Ensl 3Jtd Soulh unils: Gulfel Mnin and Annex unil~: Hamilton el Main and Annex unil~: libcn): CllInd Quincy AnncJI: Lowell rl. LtlWclll\nncJI and Bout Cam!" units; New River ("' E~t nnd Wesl unils; RMC Mnin IIn~ Wall.unils:South Floridn RCCCJ1tiun {'elller (SI:R{'1 nnd SFRC Suuth: Sumler Cland UOOI <.'lImp unils: and Taylor CI Main nnd AnncJlllniL~. The tollli indudes Ii\'c pri\'ale torretlional facilities... fronklin <.:J bcJ:lln rctcivinll inmates July 11. :U1l5, .. Florida Pl'ison Legal Perspectives Florida Prisoners' Legal Aid Organization Inc. BECOME A MEMBER' .•• I I •. YES ! I wish to become a member ofFlorida Prisoners' Legal Aid Organization, Inc. 1. Please Check ./ One: o o Membership Renewal 3. Your Name and Address (PLEASE PRINT) --:DC# --:~ _ Name New Membership AgencylLibrarylInstitution /0rgI 2. Select ,/ Category CI $15 Family/AdvocatelIndividual a o o Address $10 Prisoner City State Zip $30 AttomeyslProfessionals $60 Gov't AgenciesILibrarieslOrgsJetc. . 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