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FLORIDA PIUSON LEGAL ers ectives lSSN# 1091-8094 VOLUME 15 ISSUE 1 JAN/FEB 2009 constitutionality at the Safe Streets I.nitiative of 1994 (hereinafter "The Act"). The .Act amended section 944.275. Florida Statutes by Melvin Perez (1993). to restrict the. awarding of basic gain time to only those prisoners who were sentenced for crimes committed prior to January 1. 1994. See: Ch. 93~06, § 26 at 2958'On December 4, 2008, the' Florida Supreme Court 60. Laws of Florida. revisit its prior ruling in Schmidt lI. Crusoe. 878 . Cox argued that the Act violated the single-subject So:2d J61 (Fla. 2003). The case came before the Court on provision of article III. section 6, Florida Constitution. and a certified question of great public importa~ce from the that he had been unlawfully deprived of more than five First DCA's ruling in Cox lI. Crosby, 31 Fla. L. Weekly years ofbasic gain time under the Act. . 0310 (Fla., ISf DCA; Jan. 26. 2006XHawkes, J., The. Florida Supreme Court transferred the petition to dissenting). ," . . the circuit court for Leon County, Second Judicial Circuit, The First DCA in Cox. supra. held that, "if appelJanes . which treated the filing as a petition seeking both claim is successful the result would be that his time in declaratory relief(with JllSpect to the single-Subject claim) prison would be 'directly affected,' i.e., significantly and mandamus relief(with respect to the gain time claim). reduced.' We are, therefore. constrained to conclude. that The ~econd Judici~l Circuit Court found Cox to be this proceeding is a 'collateral crimlnal' one a~ defined by' indigent and applied. ~e prepayment lien requirements of our supreme court in Schmidt." the prisoner indigence statute. section 57.085, Florida The question before the Court as rephrased was, "Does Statutes (2005). Thereafter, the lower court denied Cox's the holding in Schmidt lI. Crusoe,' 878 So.2d 361 (Fla. petition. " . 2003), extend to all gain time actions, regardless of. their Cox then' filed· a notice _of appeal and a motion to nature, in which, if successful, the complaining party's proceed as indigent The trial court certified .Cox as claim would directly affect his or her time in prison,.so to . indige~t forappelJate purposes and again determined that preclude imposition of a lien on the inmate's trust aecoun! . the" prisoner indigence $tute was applicable. to recover appiicable fil\ng fees?" . ." Cox filed' in the ,First DCA a "Motion for Review," C~x who was convicted of second degree ~urder on . wherein. he argued tha~ under Schmidt, supra (Schmidt I), April 16, 1995, and· was sentenced to twenty years his proceedingS in both the ci~uit 'and district court; were imprisonment, filed a petition for writ of habeas corpus to "cQllateral criminal. proceedings" and not subject to the the Florida Supreme Court challenging the prisoner indigence statute or prepaymeJ'lt Hell provisions ofsame. '. , Florida .SupremeCourt Revisits· Schmidt v. CrUsoe " I· [§J ON , THE ". .INSIDE, Reversal in ConStructiv~ Possession Case 3 :••••..•.....•••".....••.•.•.....•.•.••••...... ~ ...•................ S Post Conviction Comer; _ 6 Notable Gases ~ •.•..:.....••..•••.... ~ ll 2009 Resource List ~ 1S' Questions & Answers ~ : 20 From the editor DOC's Argument . DOC argued that the Court should answer the certified question in the negative. quash the First DCA's decision. and adopt the reasoning of the dissent opinion. Further. DOC asserted that Co~'s case differed from Schmidt I in several ways. These ~ere that: . of (a) The pri~ner in' Schmidt I challenged the decision the Qept. to revoke his gain time. while Cox challenged the constitutionality ofa legislative act; (b) The prisoner in Schmidt I was seeking to recover gain time that had, already been awarded. while Cox sought to obtain gain time that had never been awarded; (c) Schmidt was. required to act within rigid time frames. while Cox was not required to do so; and. (d) Schmidt's claim was based on unique facts peculiar to his case. while Cox's claim involved general facts that . applied to other prisoners as well. Mo~ver. DOC contended that the test used by the DCA· in applying the prisoner .indigence statute was, an incorrect standard .and will open the floodgates· to prisoners' statutory validity claims. Last. the Dept. claimed that to allow prisoners to file such actions free of cost, while requiring private citizens to pay filing fees and court costs for similar actions. was fundamentally unfair. Court's Bolding The Court in answering the certified question as rephrased in the affirmative and approving the DCA's ruling stated. "We c~nclude that each .()fthe Department's arguments misses the mark...." The Court further held that: ' • The procedural posture of the pri,soners in Schmidt I and Cox were sufficiently similar for sedion 57.085 purposes.. • It was irrelevant under Schmidt I whether the claims involved "revoked" gain time versus "withheld" gain time. or whether the prisoners acted within rigid time frames versus, general time frames or whether the cases involved unique facts versus general facts. ., . • The' analysis in Schmidt I was clear-cut: the prisoner indigence statute was intepded "to discourage the filing of ',frivolous civil lawsuits" with respect to prison conditions. not "to prevent the filing of claims contesting the computation ofcriminal sentences." . . '. The standard used by the DCA was not incorrect, nor will ,it open the floodgates to prisoners' statutory validity claims with respect to gain time. . . , Florida Prison Legal Penpectives • All indigent persons-whether eligible prisoners or CirCuit Court summary denial of a prisoner's Petition for private cidzen&-are treated equally: all are entitled to Writ of Mandamus challenging what was, essentially, a proceed in court without prepayment ofcosts. , disclpJinary report' for '"constructive possession" of contraband. . "We hold that Schmidt v. Crusoe. 878 So.2d 361 (Fla. In his maradamus petition state prisoner Terry Bujno 2003). is applicable to all claims that.' if ~uccessful. will challenged a prison DR team's findings that he was guilty directly affect 'the length of time the inmate will actually of introduction of contraband after a pornographic .spend in ·prisoh.' Id. at 36'6. Such claims constitute ma'gazine ~ found.hidden in a work squad cart in which 'collateral criminal proceedings' for purposes· of section he, another prisoner, and two prison staff members were 57.085•. Florida Statutes (2005)' as explained in Bush, v. riding. Bujno asserted in his administrative appeals of the State. 945 So.2d 1207~ 1213 (Fla. 2006)," concluded the DR and In his mandamus petition to the circuit court that: Court. I) he was· not in personal possession ofthe contraband at Certainly. DOC is not happy with'this ruling. Since the the time of its discovery, 2) that there was no evidence Dept. has made every wishful argument in its effort to that he had hidden the contraband or was aware of its discourage filing against DOC without a lien on the existence, and 3) that the evidence was otherwise prisoner's account, not to ritention the I S¢ copy fee Insufficient to establish constructive possession because prisoners are being charged when submitti~g a petition for the cart ws kept in an unsecured area and was readily writ of mandamus fOr copies seeking review from a DR accessible to a large number of other prisoners and staff resulting in the loss of gain-time, also a "collateral members. criminal proceedings" under Schmidt. The circuit cOl;lrt denied Bujno any relief on his petition For a full review of the Court's, ruling see: McNeil v. without even requiring a' response from the FDOC by Cox. etc•• 33 Fill. L. Wkly (s) 93S(Fla. Dec. 4, 2008). Cox issuing a simple, and ufually automatic, show cause order, ~ represented by Stephen H. Grimes and Matthew H.reasoning speciously that 'the FDOC';s responses to , Bujno's administrative appeals "were a~equate." Bujno Mears ofHollaild and Knight. correctly. sought review of the circuit court's denial .by [Editor's Note: As briefly mentioned above, the FDOC filing a Petition for Writ ofCertioi'ari In the appeals court. The DCA determined in its review that the record has been and continues to try to obstruct prisoners from challenging DRs involving loss of gaintime by chai'ging supported the conclusion that ~e DR hearing team found Bujrici' guilty based on the theory that he "constructively them photocopy fees for documents needed to litigate such possesSed or controlled" the contraband at Issue. Case law, actions. In, fact, in September 2007 emails were sent to all the 'DC~ 'noted, recognizes that,evidence of constructive institutional librarians informing them that FDOC's possession is sufficient ,in,a prison disciplinary proceeding General Counsel and. the state Attorney General's office when contraband "is found in an area where only a limited were Interpreting such actions to. be "civ~1 actions" and therefore prisoners must pay copy costs for documents to number of inmates have ready access." See, e.g.• Hamilton v. •O'Leary" 976 F;2d 341 (71b' Cir. 1992) (evidence that pursue such actions. Obviously, such copy fee charges are weapons were found in vent of cell shared by four inmates illegal 'and improper. Such' cases, as the Fla. Supreme was sufficient to establish constructive possession). Court has now repeatedly stated, are "collateral criminal However, the DCA also noted, even under the minimal proceedings" not "civil actions" and therefore no photocopy fees are authorized to be charged. See: Rule evidential}' standard associated with prison disciplinary 33-501.302(5). F.A.C., (no copy fees shall be charged for proceedings, the inference of constructive possessioil may documents filed in criminal proCeedings).: It is time a be too weak where the charged prisoner was jutt one of challenge was brought to stop such illegal; unauthorized many who shared access to the area where the contraband was found and there was no other reliable evidence tying copy fee charges. Small claim- court actions would be the .contraband to the' charged prisoner. See, 'e.g., proper to recover such fees already dedpcted or to have Broussard v. Johnson, 252 F.3d 874 (Sib Cir. 2001) liens remov~from Inmate accounts for Same - bp] • (evidence" that contraband- was found In kitchen area accessible to approximately 100' other inmates not Cordenas v. Wigen, 921 F.Supp. 286 (in sufficient); First DCA Reverses common area shared by 12 inmates insufficient). Circuit Court in '. The .DCA' opined that 'the administrative appeal '(grievance)' responses on which the circuit court relied to "Constructive Possession" deny Bujno relief ."did not directly address {his] claim DR Case \ I n an opmionfiled January 21. 2009, Florida's First District Court of Appeals overturned a Second Judicial that the evidence waslnsuJ!icientto establish constructive possession, and becauSe the circuit court did not order a response from the Department, it undel100k to determine the merits of [Bu]no's] 'claim WI/hout the benefit of an 3 FloridaI Prison Legal Penpectives adequate record of the disciplinary proceeding. and the evidence considered by the disciplinary team. Without , such a ~ the DCA stated, the circuit court could not . properly discharge its duty to detennine whether there was some factual support for the finding of guilty, citing O'Neill Y. McNeil, 979 So.2d 1209 (Fla. lit DCA 2008). , Under those circumstanceS, the DCA held, that the. circuit court's failure to issue an order to show cause amounted to a departure. fonn the essential requirements of law. See: Drmcan Y. Florlda.Parole Com'n, 939 So.2d 176 (pIa lit DCA 2006). Therefore, the DCA granted the certiorari petition, quashed the order denying Bujno's mandamus petition, and remanded the case back to'the circuit court for further proceedings. Bujno Y. Department of ' Co"ectlons, =~~So.2d-, 34 Fla. L. Weekly D204 (Fill'. lit DCA 112110~). [Editor'. Note: The above case is significant in that it appean to be the first published court decision in ~lorida state courts, or, federal courts with jurisdiction ov~r Florida, to offer any clarity to the principle of "constructive possession" of contraband in the prison discipline context. Which is likely why the DCA relied on federal cases from other jurisdictions in its discussion on this case. Howev~r, the fact is that every year hundreds of Florida prison~rs are written DRs for what amounts to constructive possession of contraband. DRs that, as' the above case illustrates,' can be in many instances successfully overturned if properly and zealously litigated. . Although not an issue in Bujno'scase, as the work.cart was likely entering the prison from an outside maintenance shed when the contraband was found, the DR charge of -inttoduction . of con~d· is also wort4 commenting on. . In recent years, many legally-ignorant Fpoc staff seek;ing to inflict maximum punishment on prisoners caught with contraband will write the DRs for "introduction" rather than simple "possession.~' The difference is the first is a major DR while the second is minor DR ·and the first carries much harsher penalties upon a finding ofguilt. . ,However, the fact is, "introduction of contraband" may only be properly charged upon introducing (or bringing) specified contraband into a prison from the outside. S~e: § 944.47 Fla. Statutes, and Parrish Y. State,423 So.2d 617 (Fla. 2d DCA 1982). State Y. Becton, 665 So.2d 359 (Fla. 51b DCA 1995). Contraband that is already inside a prison, or items inside a prison that, become contraband for whatever reason, and found in a prisoner's possession can legally only earn a ", possession of contraband" (minor) charge. Fot example. it is not "introduction of contraband" to get caught taking prohibited tobacco products into a confinement unit from the compound. since nothing was being "introduced" into the prison from the outside. 4 Such improper upgrading of DR charges should be vigorously challenged by prisoners to disco~ge this practice and to obtain relieffiom such bogus charges-bp]. Correction In FPLP 'Vol. 14, Issue 5, article entitled "Obtaining Records From Counsel," page 8, in the last paragraph. right column states, "Moreover, this rule provides that in criminal cases. II It should read, "Moreover, this rule provides that except In criminal cases." Advertise In FPLP Reach new clients or customers th~ugh advertising in Florida Prison Legal . Perspectives. To obtain advertising and rate information write or email.us at FPLP Attn: Advertising P.O. Box 1069 Marion, NC 28752 .. .. ~(. .r';· . :""': Or : fplp@aol.com FLORIDA CLEMENCY SPECIALIST For Info. On Sent_ R¢ucticm 1lInlusb Exccutiw CClIlClICy NATIONAL CLEM~NCY PROJECf 8624 CAMP COLt!MBUS ROAD HIXSON, TENNESSEE 37343 (423) 843-n3S ,(J+YEARSOF CLD:lENCv & PAIlOLEASSISTANCE) (TRANSPERS UNDER THE INT'L PRISONERS TREATY) .;.:; ' . Florida Prison LegalPenpectives From the editor... , /. Those are j~ some of the more visible efforts of FPLAO that were succ~sful, One project that is very important but that bas not· been successful. yet is the parole project started in 2003. Unfo~ly, insufficient .' financial support to continue. that project bas stymied it . but we baven't given up. With sufficient support the parole system in Florida caD be reformed so that it works . as it should Maybe one day parole-eligible prisoners will realize"tbat FPLAO must have financial support to make tbat reform a reality. (More about that in the next issue of Welcome to this l81esr issue of FPU'. ,This issue.marks the beginning of the 15th year that F'PU~ has been published. 'Fori 5 years. Florida Prisoners' Legal Aid Organization (FPLAO) and FPLP have steadily advocated for Florida prisoners and their families and friends and' consistently brought them news andinfonnation that is of real use in. swviving and cIealing with being in priSon or having an incarcerated loved one. For 15 yearS FPLAO FPLP.).. " and FPLP Staff and members have been on'the forefront in " ,AnyWay, wbatit all comes down to is that both the struggle between rational correctional policies and. FPLAO and FPLP are still al;ive and kicking J 5 years policies that often seem to be initiated by nothing more later: And· the reason for that is the dedicated staff and than whims. abuse of authority (because they can), a lack members who have reaH.zed just how important and of concern for the safety and health of prisoner or long- . beneficial such an org8Jli.mtion and news journal are. term public safetY~ greed, personal vindictiveness. and/or I'd'like to remind everyoneofa few things here. ignorance. Of course, in'a bureaucracy as large as the None of the staff· of FPLAO or FPLP gets paid, all Florida prison system, a certain, amount of such ~8ID:bership dues and donations ,go tQWards expenses. undermining policies can be expected. But. for some projem and to publish and mail FPLP. All staffvolunteer reason. it seems the Florida system has had more ,than a ' their time and ~orts to keep everything going. reasonable share'. That is why it baS been important that , .FPLAO cUrrently has about 4,000 members, 2/3 of FPLAO and FPLP exists, to provide check and balance whom are prisoners and the other 113 made up of family and to shine a light into what :can otherwise be a dark, members. mends, advocates' i1nd other·concerned citizens. abusive and secretive world behind Florida's increasingly The organization depends on its members to recruit,·new numerous razor wire fences. meQlbers, the more there are, the, that, can be done. To many"that FPLAO and FPLP have survived so , 'To receiveFPLP it is necessary to join FPLAO as a long is nothing short of aDiazing. I lost count long ago of member. (See,Membership Form in t1iis issue.) There are the nwnber of fellow prisoners who've expressed to me some exceptions to that, complimentary copies .of FPLP that the'FDOC would never tolerate FPLAO or FPLl! or are mailed to the FDOC secretmy and other top FDOC'and allow, them to continue to "buck ~e system:' Both ~ , government officials. including 'state, legislators. We want exist i:md will continue with the faith and support \of them to kDow that the problems aren't all ono-sided or members. .. ' going to be kept secret We know many of those people Those members ofthe organizatiOn who have been are thareto clothe rigbtthing., with it awhile know that FPLAO does much more than just Additionally, when writing to FPLAO or FPLP to 'publish FPLP. Since the beginning FPLAO has taken on become a member, ro-up membership, change yom projects to improve conditions for Florida prisoners and address or any other such business, please,state that at the their families. While all those projects weren't successful, beginning of your .cmrespondence to belp the staff in many of the most important ones were. In the 1990's processing the, mail.- If you are aware of an attorney or when the FDOC made several moves to restrict fanilly other Service Provider who ~ good J~on or viSitation, FPLAO was there and fought the changes tooth . service and who maY be:interested in advertising in FPLP, and nail to where today the FDOC has safe and reasonable send them the'info on how 'to .corltact FPlJ', As ,C.QSiS go. visitation policies. FPLAO bas also successfully fought. up for printing, supplies and postage, adve:rtising helps us efforts over the years to restrict and limit prisoners' and . to keep membersbipdues' reasonable' and provides useful info. - . . " ' their families' maiL ' For several 'years FPLAO fought against 'the And fiDally, the staft'wishes to ~ all those who h8ve made donations to the organization recently. We exorbitant. gouging telephone rates that prisoners' families were being charged to stay iit toucbwith their loved ones. Jmow all D,lembers can't make d~ons. but,many can. That fight was finally won, with rates being redUced. to boib large and ilIIla1l, and. donations in anyamomit are ·S1.80 per IS minute call inside or outside, the state just a certainly needed', and appn;eiated., Everything you do couple ofyears ago, saving prisoners' families and mends nowadays costs something" so ifyou can, make a donation.. eVen ifit's a fewextra,stamps. ~ . millions of dollars every year. ,, ,Until my next .letter ~ the editor, I wisb FPLAO waS also recendy involved in ,having the . prison canteen prices reduced and made more reasonable, everyone reading this the best' Together we'll continue to although Keefe,; the private vender for the make changes for the better and bring useful info to those . , ' eatiteens, is trying to inch the prices back up and bears ".who need it' Sincerely, , Bob , ' Posey , 5 watching. ' more resource Florida Prison Legal Penpectives POST CONVICTION CORNER Each and every person accused ofa ~rime is entitled to certain constitutional, rights. One such right is the trial by jury. See Sixth Amendment ofthe Un.ited States Constitution; and, Article 1, §22, Florida Constitution. Inherent in said right is the right topleaii.not guilty and the right to make the State prove the charges. A criminal defendant can never be forced to plead 'guilty to the charges against him. And, although an attorney has the right to make ~cal decisions regarding trial strategy, thedetermiIUition to plead guilty or not guilty in a criminal matter should be a matter 'Yhich ,is left completely to the defendant. In Florida it used to be that an ~()rneis concession ofguilt without the client's consent amounted to an involuntary guilty, plea and there was a presumption of the denial of the constitutional right to e,ffective assistance . ofcouns.el in such situations. See Nixon v. Singletary, 758 So.2d 618 (pIa. 2000). However, subsequent cases have done away with ~e requirement of a: defendant's consent to a concession ofguilt and instead look to the reasonableness of the attorney's actions in conceding guilt. This article will address the issue ofineffective assistance ofcounsel where an attorney concedes a , defendant's guilt to the jury without the consent of the client. The two pronged test for ineffectiveness ofcounsel, as enunciated in Strickland v. Washington, 466 U.S.'668 (1984), applies to allegations of counsel's Concession ofthe client's guilt during trial without the consent ofthe client. See, Florida v. Nixon, 543 U.S. 175 (2004). As such, it must be shown both that the decision to concede guilt fell below an objective standard ofreasonableness on,the part of the attorney and ~ there is a reasonable probability that. but for counsel's unprofessional errors, the result ofthe proceeding would have been different. Strickland at 694. When a defense attorney cOncedes a defendant's guilt to the jury (with or Without the consent 'ofthe client) the question 'becomes whether the concession ofguilt was a reasonable trial strategy under'the circumstances presented.' Sage v, State 905 So.2d 1039, 1041 (Fla. 2ad DCA 2005). ' Moreover" in determining'whether this'ttial strategy was reasonable, the postconvictioncourt needS tp explore whether counsel failed to reasonably investigate the case in 'order to develop a more promising defense. I!L " The trial court should not just be able to affix the label st1'ategy to each and every decision to concede guilt and thusavoid findings ofineffectiveness ofcounsel. Instead. the trial court should evaluate, among C?ther things. how the defense was presented, whether the attorney had reasonable alternatives to conceding guilt. the relative strength of the alternative defenses, the attorney's inv~stigation into the case, and whc;ther the defendant'consented to the concession ofguilt. Strategic or tactical decisions by counsel made after 'a thorough investigation are , "Virtually unchallengeable." Cabrera v. State.. 766 So.2d 1131 (Fla. 2nd DCA 2000). Nevertheless, "patently unreasonable" decisions, although characterized as taeti~ are not' , immune from attaC!c-. ML. at 1133. "Certain defense strategies may be so ill-chosen that they may , render counsel's overall representation constitutionally defective." U.S. v. Tucker, 716 F.2d 576 (C.A. Cal. 1983); see also Occhicone y. State, 768 So.2dl037, 1048 (Fla. 2000) (decisions must be "reasonable the norms ofprofessioIUil conduct.") Therefore, when an attorney concedes the defendant's guilt without the consent ofthe under 6 by Loren RhotoD, Esq, • Floridl\ Prison Legal Penpeetives defendant, it does not automatically amount to ineffective assist(mce ofcounsel sUfficient to justify vacating a judgment and sentence. Instead, it m~t be argued that the decisi.on ofthe attorney to concede gUilt was an unreasonable decision and that, in the absence ofthe concession ofguilt, the outcome ofthe trial would have been different Ifboth pron~ of Strickland Test can be demonstrated then the court should vacate the conviction and re~d the case for a new trial.• The issue of unreasonable concession ofguilt.should be raised in a timely Florida Rule of Criminal Procedure 3~850 Motion for Postconviction Relief. Said motion should present argument, based upon ~ and the other above:cited authorities, that trial counsel conceded the ~'s guilt and that said concession was an unreasonable tactical decision wl)ich likely con.tributed to' the jury's guilty verdict. Ifboth prongs ofthe Strickland Test can be demonstrated, the judgmentand sentence should be vacated and a, new trial should b; held. the LOren Rhoton is a member in good standing with the F10ridq Bar and a member ofthe Florida BarAppellate Practice Section. Mr. Rhoton practices almost exclusively in the postconviction/appellate area ofthe law, both at the State qnd Federal Level. Mr. Rhoton has also been appointed by the Florida Supreme Court to serve on the. Postconviction Rules Commitiee ofthe Criminal Rules Steering. Committee. He has assisted hundreds ofincarceratedpersons with their cases and has received numerous written appellate opinions..• ;. Cary F.Rada Board Certified Criminal Trial Lawyer Former State Prosecutor • POST-CONVICTION: SERVICES " • 3.850 Motions • "Sentence Corrections • Federal.Habeas Corpus • State Habeas Corpus • Appeals • NewTrials "~ CRiMINAL TRiAL LAW e 't: .CarY F. Rada, P.A. 318 North Texas Avenue "Tavares, FL 32778 352-742-2778 E.Mail~ Info@Cary~da.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 qU~lIfications. - - . . . . ; . . . - - - - - - - - - - - - - - - : - - -...... 7 Florida Prison Legal Pe.-spec:tives NE'W" ...... ·'·SIN·. . . BRIEF. · . . of telephone or telegraph service. AL - A fonner Covington County probate judge, Sherrie' Phillips, was . Officials have not released the cause of death. sentenced to three years in prison on November 12, 2008 for misuse of co - On November 18, 2008, the funds. Authorities say Phillips Denver city council approved a $3 bo~wed S517,OOO from a S1.8 million estate her . office was million settlement with. family ~dling and returned all but S917. members of a woman who bled to death at the jail-in Feb. 2006. Emily Phillips must also serve seven years on probation after her prison release.. Rice, 24,\yss arrested on suspicion of drunken driving and had been AR - On December 23,2008 the· 'injured in a car crash resulting in-a Board of Corrections approved $27 lacerated spleen and liver. For. 20 million in prison projects..As part of hours Rice cried for help and guards the project, S11 million will be used ' ignored her cries. to expand the McPherson Unit for woman. Officials said a -mentalCT .- DOC saId on December 16, health unit will be added. 2008, 'that it opposes .a task force's plan to use the maximum-security CA - On November.3, 2008, San Northern Correctional InstitUtion in Bernardino' County agreed to pay Somers exclusively for problem $45,000 to. settle a lawsuit filed by pr,isoners. The tasR force saYs that it Jameelah Medina. The lawsuit was .will improve officer· safety . in· filed after Medina was forced to prisons, while DOC claims it must .remove her, headscarf during her 12 also house dangerous gang members 'hourjail stay. Medina argued that jail at Somers. I . officials violated her religious freedoms by forcing her to remove FL - A prison-yard fight Jan. 25 left the headscarf. As part of the eight prisoners seriously inju~ with stab wounds and. at least one gupshot. settlement the jail will allow ,Muslim wound at the high security .unit of women to wear headscarves. Coleman Federal .CorreCtional Complex located about 50 miles CO - Garfield County officials said northwest of Orlando in .Sumter on November 3, 2008, that nearly $570,000 in attorney fees have been . County. Seven of the prisoners were airlifted. to an Qrlando hospital for paid to defend a lawsuit. The suit was filed by jail inmates who argue emergency treatment. No staff were reportedly hurt during the brawl. that jail staff have wrongly shot then:t Prison officials remained tightlipped 'Yith tasers, placed them· in restraint about what may have sparked the chairs dnd denie4 mental health care. To no surprise, I,.on Vallario, fight. Garfield County Sheriff, denies the claims as frivolous. GA - The Georgia Peace Officers Standa~s and Training Council voted on December 24, 2008,to CO - A jail inmate at the EI Paso require .police officers to receive County Jail died on November II, , 2008, after collapsing in a holding. intense training on _new eyewitness cell at the courthouse while awaiting identification standards. The a court appearance. Bruce Howartf, Council's vote came in response to 67, had been.arrested on suspicion of seven prisoners being exonerated by a assault, harassment and obstruction DNA evidence in the last decade. m - DOC officials reported on November 30, 2008, that too many guar~were ca!ling in sick to work, cau~ing 13 ofthe past 27 visitor days at the Halawa Correctional Institution to be canceled. The Public Workers Uni,on is trying 'to' help resolve the problem with the Dept~ \ IL' - A- fo~er Alton police officer was sentenced to '10 years in fe~eral prison .on December' 8, 2008, for stealing. Mick Dooley was convicted of eight. felonies. Officials say Dooley stole from the evidence vault to fund a gambling habit. Further, Dooley once took nearly 59,509 from the vault, then lost all but $ I.7S at a casino, said prosecutorS.. . IL - DOC evacuated 39 prisoners from a minimum security wing at Thomson Correctional on November 25, 2008 before a drywall ceiling collapsed. Nobody was hurt, said the Dept IL - Hours after Sarah Jo Pender's .story was featured on America's Most Wanted on December 22, 2008, authorities captured her in Chicago. Pender, 29, escaped from an Indiana prisonwhiJe serving. a 75 year sentence for two murders. A correctional officer hid her in a prison vehicle to escape, .said officials. . IN - Charges were filed on November 19, 2008, against three male and three female inmates at Green County Jail. According to court records, the inmates removed 'metal . ceiling panels to sneak between cell blocks to have sex. The passageway was used more. than a dozen times, said the court documents. KS - The County Commission said Florida Prison Legal Perspectives on D~mber 28, 2008, that it is considering whether to pay more than S5,OOO to buy cable service for facilities that only receive analog .TV signals. Starting Feb. 17 jail inmates at the Shawnee County Jail and the' juvenile detention center could be without television,because the TVs at those facilities only receive analog signal,. Analog signals won't be around after that date. said the Commission. MA - Officials announced on November 16, 2008 that the soaring DOC population is bringing renewed calls for changes to the state's mandatory minimum sentences. Authorities say that in 2003 there were fewer than .} 0,000 prisoners. The estimated population could be over 12,000 in 2009, authorities added. The dept's capacity is less than 8,000. MD - A lieutenant fired from .the DOC was reinstated by an administrative law judge on December 11. 2008. The judge cleared him of allegations he helped brutalize prisoners. The lieutenant was among 23 officers fired as part of an investigation involving eight prisoner assaults. MD - On December 18, 2008, it was announced that the state agreed to settle a lawsuit for S500,OOO with the family of a prisoner who died at the Western Correctional Institution., Ifeanyi Iko suffQC8ted four years ago after ail illtercation with guards! DOC claims that Iko had a pre-exi$ting heart condition which caused his deJlth. MD - Alphonso Hill. a prisoner serving 16 years in a Towson prison for eight rapes, was sentenced on November 12,2008, to an additional 60 years for six new rape charges. Hill also' pleaded guilty to two additional rapes at the sentencing' hearing. MI - A Huron Valley.Men's Facility guard suffered second-degree bums on D~cember 4, 2008 after a prisoner tossed a mixture of petroleum jelly and water he heated in a microwave. The union who rep~septs guards a t Michigan prisons wantS DOC to end prisoners' access to microwaves. The officer's name nor the name of the prisoner were release~. • MI - The sta~'s 41 ,prisons went smoke-free Feb. I. The ban on smoking 'inside Michigan prisons' will apply equally to prisoners and staff. For the' past year prisoners were ofl'ered smoking cessation classes toh~lp them to qUit smoking. MS - In an effort to cut '$6.5 million, on November 25, 2008, DOC sent the names of 2,900 non-violent prisoners to the parole board for its consideration. The plan a~ calls for the removal of 300 state prisoners from county jails, 154 from regional jails and 50 from private prisons. This can begin as early as January, said DOC. NJ - In an .effort to deal with prisoners having illegal cell phones, DOC said on November 16, 2008, that cell .phone-sniffing dogs. are , being trained. DOC officials said smuggled' phones are a threat i because prisoners can use them to send photos of prison layouts and direct illegal activities. NY - The DOC in an effort to save S8.7 million announced on November 7, 2008, ihat it plans to consolidate housing units at 14. state prisons. The-plan would also merge two infirmaries, close farms at. a dozen priSons and cut 134 jobs. November, said· officials., Walsh's brother is being held at the jail on murder charges. His lawyer told the court dta~ Walsh was going through a lot of emotional turmoil. . , NY - .Three police officers were charged with felonies on December 9, 2008, in connection with an attack on a tattoo parlor worker. The ,victim claims the'tJ1ree officers sodomized him with a baton in a subway station. DNA' of the victim was found on a police baton, said Charles Hynes Brooklyn District Attom'ey. OU - On November 19, 2008, Gregory ,Bryant-Bey, 53 was executed by lethal injection at a Lucasville prison. OK. - Mike Burgess, 54, former Custer Co. sheriff, was convicted in Jan. '09 of sexually abusing female jail prisoners and drug court defendants. A jury recommended 94 years in prison. While awaiting sentencing, county and state officials were trying to decide detention options where Burgess' safetY .would be an issue in a regular state prison. WA • Doctor Marc Stem, the head doctor for DOC, resigned ,on December 24, 2008, to avoid an ethical ,conflict over the pending execution of prisoner, Darold Ray Stenson. Stem says that his resignation wasthe only way he could. take himself out of the execution plan. Using doctors to prepare fo~ an execution is unethical, ~id the form.er head DOC doctor. ' " WI - Officials said on November 30, 2,008, that an old cou~ty jail in ,Western 'Wisconsin has been , transformed into a homeless shelter NY - A man pleaded not' guiity on for single adults. The Polk County November 4, 2008, to trespassi~g Jail's old cells are now furnished and .other charges in connection with bedrooms and the gun safe is now a magazine rack. T-he Serenity Home, what officials call breaking into jail. as it's now. called, offers homeless ThomasWalsh~ 26, tried bre8king into the Nassau County -Jail after· people a place to live for up to 18 months, said officials. _ • guards told him there were no visiting hours the' first week of 9 Florida Prison Legal Perspectives .Loren D. Rhoton I.,. p.o.st.c.b.nv.i.ct.io.n.,.A.tt.o.rn.e.y 1 "• .Direct Appeal$ • Belated Appeals • Ru'e 3.850 M~tions • Sentence Corrections • New Trials .• Federal Habeas Corpus Petitions .412 East Madison Street, Suite 1111 . Tampa. Florida. 33602 (813) 226~138 Fax (813) 221-2182 Email: lorenrhoton@rhotonpostConviction.com. Website: www.rhotonpostconviction.com The hiring of's 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. BUY THE BOOK -, ON SALE NOW' POSTcoNvIcTION RELIEF FOR THE FLORIDA PRISONER . A Compilll;tion ofSelected Postconvicdon Corner Articles A collection of Loren Rhoton's Posrconviction Corner articles is now available in one convenient book geared tow,ards Florida inmates seeking justice in their cases. Insights basea on professional experience, case citations, and references to the relevant roles ofprocedure are provided.. This book is specifically directed toward those pursuing pOstconviction relief.. To order, send $20.00 in the' form of a money order, cashier's ch~ck or inmate bank check (no stamps, cash or personal checks please) to the address above, or order online at www.r~otonpostconviction.com. 10 Florida PrisOl~ 'Legal,Penpectives Thelollowing are summaries 01recent stale andlederal Cases that may ~e wef;d io o~ have ,a sigiiiJi~ant impact on Florida prisoners, Readen should,always read theftll opinion as published in the Florlt!a Law Weelcly (Fla., L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Federal); Southern Rspgrter 2d (So. 2d); Supreme Co&ir.t Repdrter (S. Ct.); Federal Reporter 3d (F.3d); or the Federal Suppleme~ 2d (F.Supp. 2d),· since these summaries arelor general i'?!ormalion only. ~ " FEDERAL US Supreme Court Hedgpeth v. Pulido, 21 Fla. L. weekly Fed. S 559 1212108) The United States Supreme Court in this case ruled that instructing a jury on multiple theories ofguilt, one of which is' improper, i~ not a "structural .~rror," requiring that a conviction based on a general verdict, be set aside on collateral review without regard to whether the flaw in the instructions prejudiced the defendant, but is subject to Hannless error review. A rev~ewing court. finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in.determining the jury's' verdict~ , qu~ion was rephrased by' the , 'Supreme Court upon its review.] , The question was anSwe~in the . affinnative and' the First PCA's opinion in Cox waS approved. (See lead article in "this issbe'of FP,LP') .Larimore v: StQte, 33 Fla. L. Weekly S948 (12IIl/08) In resolving a conflict between district courts, the Florida Supreme Court opined that an individual must be in lawful custody when 'the State takes steps to ini~ate. co~mitment proceedings pursuant to the' Jimmy Ryce Act in. order for the circuit court; to . have jurisdiction .to adjudicate the commitment petition. Therefore, the de9ision' in Larimore v; State, 917 So.2d 354 (Fla. lit DCA 2005), was quashed and the one in Gordpn v. Regi,!" 839 So.2d 715 (Fla. 2d DCA 2003). was approved. . . Canty v. M~eil,. 33 Fla. L. Weekly D2442 (Fla. III DCA 10121108) .'EdisOn Canty was a prisoner who had initially received concurrent 15y~r sentence~. one of which was a .habitUal felony offender sentence. and was returned to prison after cdnd~tional r:elease. Upon his return. ,. the 'Deparbnent of Corrections . improperly calculated a new release date that effectively extended Canty's .sentence from 15 years to over 17 y~ars. . The appellate court opined that the, .problem was the DOC's misunderstanding of the opinion in Evans v. Singletary, 737 ,So.2d 505 (Fla. '1999). where the DOC says it ..~'llS he.l~ that imprisonment is tolled ,<?n conditional release' eligible sentences. which is .incorrect. Evans held the conditional release SJlpervision was tOiled until release on the ineligible concurrent sentences. Ewins did not speak to the 'STATE lengtJ1 of incaiceration after return to District Court ofAppeals pri~on. Evans reasoned that one who is' not released cannot be supervised Florida Supreme Court Green v: State. 33 Fla.' L. Weekly D2410 (Fla. 2d DCA IO/I5i08) as a. Conditional' release. and therefore. the period of supervision is McNeil v.' Cox, 33 Fla. L. Weekly S . This case presented the appeilate 935 (Fla. I2I4/08)' court with a motion by the state in . properly bas~d o.n the gain time of theeligibl~ sentence. So. it was This was a review from' the criminal court to obtain civil opined on the. gain time of the decision in Cox v. Crosby. 31 Fla. L. restitution lien for 'COsts, of eligible sentence. So, it was opined .Weekly D310 (Fla. lit .peA in,carceration against a prisoner who 12126106). where the appellate court had, in' a separate· civil action•. that the same reasoning should apply in Cantfs case: "If a prisoner is still certified the question: Does the obtained federal judgment basee;l on imprisoned on, a con~urrent sentence, holding in Schmidt v. Crusoe. 878 state prison employ~' v~olation of . it is a bit of sophistry to say the So.2d 361 (Fla. 2003). extend to all prisoner's civil rights. . person is not imprisoned on the gain time actions. regardless of their" The appellate court affirmed tHe release eligible sentence.'t nature, .in which, if successful, the decision to obtain the costs of incarceration. . ' The appellate court further opined , complaining party's claim would that if its reaSQning in Canty's case directly affect his or her time in [NOTE: Judge Altenbernd concurred "somehow reduces. or eliminates prison. solo preclude imposition of a with reluctance and wrote a very conditional release 'ill some cases. so lien on tJte inmate's trust accollnt to good exp.lanationthat should 'be l'ead recover applicable filing fees? [The by prisoners seeking civil judgments . be it Th~ court set the length of against state prison employees;] 11 sentence, and the Department' of Corrections does not have the authority to mcrease it." , Therefore, it was found that the trial court in Canty's case departed from the essential requirements. of . law. The 'trial court's' decision was quashed and the case was reman4ed , for further proceec;lingS..' 'Hi/Is Y. Stale. 33 Fla.. L. Weekly D2460 (Fla. 3d DCA 10122108) The appellate 'court in Berrard . Hills' direct ap~ opined '~at where a defendant was charged with burglary of an unoccupied structure 'and petit theft, the .trial court em when it submits a verdict form that does not· contain', option for not guilty on the burglarycqarge. Hills' case, was reversed and' remanded for a new trial. an Lane Y. Siale. 33 Fla. L. Weekly . D2471 (pIa. 4th DCA 10122108) . , The appell~ court reviewed Jo1)n Lane's sentence for his robbery charge and opined that the twentyfive year.. mandatory minimum sentence he received under' section 775.087 (2)(a). 3 of the 10-20-Life statute was unauthorized. The indictment did neit allege that Lane discharged the firearm he carried during, the robbery or that as a result of sjlch, d~th or great bodily harm was inflicted. '. Consequently.' Lane's robbery sentence was reversed 'and remanded, for resentencing pursuant to section' 775.087 (2Xa) 1. which was opined to:; be appropriate, because it appeared the allegations against Lane depicted he "Carri~" a firearm. Florida PrisOl~ Legal Penp.,ctives • remanded . with instruction for and she was sentenced to ten years" incarceration, to be, f9110wed by five Gordon to ~ discharged '.in that case. years' probation. Subsequent to her convic~on and ' Walke,. Y. Siaie, 33 Fla. L. Weekly sentencing, Bartlett appealed an~ D272S (Fta. 41h DCA 11126/08) argued that the tria). court abused its Terrance Walker appealed his discretion in atJowingthe primary ,sentence, contending that the trial detective in her case to testify' that · court failed to give him proper credit before he, obtained a warrant for her for time served on atl concurrent arrest, he ruled out self-defense, and sentences: that the State had not met its burden It was, opined that the lower court under Siale Y. ~DiGul1ionf 491 So.2d did erT in only awarding credit on a 1129, 1139 (Fla. 1986), to show single conviction. The additional there· was no' reasonable possibility credit of time served, prior to that the error affected the.verdict. sentencing should have been The appellate court agreed with , awarded on all the concurrent Bartlett's arguments opining' that it sentences. See: section 921.161 (l), was error in allowing the detective to Fla. Stat. (2005); Daniels, v. State, give his lay opinion that the killing 491 So.2d 543, 545 (Fla. 1986). was not done in self-defense and the "[W]hen a defendant. has jail-time error was not harmless where state credit on a sentence 'thlit is to run failed to show. there was no concurrently with, an9ther sentence, reasonable Possibility Utat admission the concurrent sentence m,ust also ofthat testimony affected the verdict. reflect that credit. n Nelher/y v. Siale, Bartlett's case was reversed and 873 So.2d '401; 410 (Fla.. 2d DCA remanded for a new trial. 20(4). . The sentences were reversed and Gordon Y. Siale, 33 Fla., L. Weekly remanded for correction. D.2708 (Fla. lit DCA 11121108) , Willie' Gordon appealed his Clark v. Slate, 33 Fla.,L. Weekly D . convictions and sentences of drug 2756 (Fla. 2d;DCA 1213/08) .crimes he was c~arged wi,th due to Timothy D. Clark appealed the evidence found in his home .after a summary denial of his' motion for probationary search. ' postconviction relief where, in The appellate court opined that pertinent part, he asserted newly the trial court misapplied the law in discovered evidence of scientific refusing to suppress evidence seized value based on recent medical' and allowing that evidence to be studies, reports, and articles that , admitted for the prosecution. of new were not available at the time of his trial. ' criminal charges against Gordon. If contraband is discovered during In that motion Clar.k alleged that a probationary search, such evidence the evidence (1) was unknown at the cannot ~ used as basis for anew law · time of trial, (2) could not have been violation. See: Sora Y. Siale, 673 discovered by' the exercise of due So.2d 24, 28 (Fla. 1996); and Grubbs. diligence, and (3) would probably v. Siale, ,373 So.2d 905 (Fla. 1979). produce an acquittal on retrial. The However, such evidence can be used trial court denied the motion. opining to determine whether there was a . the expert testimony was "not violation of probation. See:' v. sufficient to be considered newly Knighls, 534 U.S. 112, 118-120\l · discovered evidence." Further, it (2001).opined that even if it was· considered Gordon's probation was found to sufficient, the evidence would not .be correctly revoked, but the new likely result in an acquittal because convictions and their sentences were the victim had testified .at trial that ' reverSed and' that new. case was .Clark was the' perpetrator of the crime charged. u.s. Florida Prison Legal Penpectives, First, the appelJate ,court opined McClintock v. Stale. 33 Fla. L. that Clark's motjon filed May, 2007, Weekly. D2779 (Fla. Sill, DCA clearly alleged the evidence was 1215108) discovered on March 26, 2006, and Kelly Robert. McClintock waS based on scientific, literature not appealed a trial court'~order available on April 27,' I995, the time directing him to pay restitution. of his trial. Therefore, because the , he had already, completed ,his postconviction 'court summarily sentence. ~enied the claim, the appellat~ court The appellate co!Jrt' opined that ' opined it must accept Clark's factual although "the lower court reserved allegations as true to the extent th'ey jurisdiction on the re$titution issue were not refuted by the record. See: and ordered that restitution be made Floyd v. Stale. 808 So.2d 175, 182 a lien of record' withqut indic;ati"ng , (Fla. 2002). Thus, it was found that the amount" the lower court lacked ,jurisdiction to ,establish the trial court was in error to the conclude the scientific evidence , restitution amount and enter a lien could not be, considered newly there on 8fter defendant· had discovered evidence. completed his entire sentence. See, SecOnd. because the trial court similar case: J.D. v. Suite, 849 So.2d failed to attach, records 'of the '458 (Fla. ~III DCA 2003). victim's testimony or 'testimony Other Florida cases have 'also' concerning the scientific evidence, it indi~ated that once an individual'has was error for a summary denial. served his or her complete sentence. The case· was reversed and the trial court loses jurisdiction to remanded for further proceedings. enter any further orders in the matter. On remand,' it must attach records See: Maybin v. Stale. 884 So.2d I 174 conclusively refuting the claim or" (Fla. 2d DCA 2004); Daniels v. conduc~ an evidentiai-y hearing. , mm: State. 581 So.2d 970 (Fla. Sill DCA 1991). The state tried to argue in the appellate court that ,under section 775.089 (3) of the Florida Statutes the trial court possessed jurisdiction to enter restitution until five years after' the end' of McClintiock's term of imprisonment. The appellate court disagreed.• See the-statute, as written, it pertains to a period of time during .which the trial court ;s authorized to enforce lh! payment of I restitution ~ 'o.ot a period of time for 'entry ofan original order of restitution. The 'trial court's 'order for McClintock to pay restitution was va~ted. _ ' David W. Collins, Attorney at Law , a Former state prosecutor with more than 20 years ,ofcriminallaw e:lq)erience ~'AV" rated by Martindale-Hubbell Bar register: of Preeminent Lawyers ." Your voice ' in Tallahassee representing prisoners in all areas of post-eonviction relief: . , " '. Appeals Plea Bargain Rights ' Sentencing arid Scoresheet Errors Green, Tripp, Karchesky, Heggs cases State and Federal Habeas Corpus'· Jail-time Credit Issues Writs ofMandamus Gain-time EligibilitY Issues Clemency Habitualization Issu~ Ptoba~on Revocation Issues: 3.800 Motions 3.850 Motions Write,me-today about your ease! Davidw. Collins, Esquire P.O~Box54t , Monticello,FL 32345 , • I (8S0)997-8111 . • "The hiring of a lawyer is an important decision that sho\lld no, ~ blUed sotely upon' adVertisements; Before you decide. ask me to send you free wri~n infortnadon about'Jny qualrfieations and experience." . 1..;.. - - - - -......- - - - - - - - - - - - 13 Florida' Prison'Legal Perspectives ," , . Advertise in FPLP Reach new clients or . customers th~ough advertising. in Florida Prison Legal . Perspectives~ To obtain : advertising and rate information write or email us at: FPLP Attn: Advertising P.O. Box 1069 ' Marion, NC 28752 ,. \ . Or fplp@aoLco'm THE DALEY LAW OFFICE~ P.A. Post ConViction' parole Appeals Bienmal Extraordinary W...ts Credit , State & Federal Habeas Revocation Score Sheet Issues " Clemeucv Dedicated to AggressJve CrJmlnaJ Defense 901 North Gadsden Street Tallabauce. IlL 3%303 ' (850) 1~ www.daleyllw..mce.com , 14 Florida Prison Legal Perspectives Resource List February 2009 FLORIDA Government . Governor (Charlie Crist) PL-05, The Capitol Tallahassee, FL 32399-0001 850/488-4441 www.myflgrida.com • . Attorney General PL-ol, The .Capitol Tallahassee, FL' 32399-1050 850/487-1963 www.oag.state.fl.us Department ofCorrections Secretary Walt McNeil 2601 Blair Stone Rd, Tallahassee, FL 32399-2500 850/488-7480 www.cfc.state.fJ.us Department ofHealth 2585 Merchants Row Blvd, . Tallahassee, FL 32399 850/245-4321 www.doh.sWe.fJ.us Department of Law Office ofVital Statistics PO Box 210 Jacksonville, FL 32231-0042 9041359-6900 . Maintains s/tile birlh/death cerfij1Ca1es. elc, Parole Commission 2601 Blair Stone Rd" Bldg. C Tallahassee, FL 32399-2450 850/922-0000 www.fpc,swe,fl·us Florida Justice Institute 1OOS E 2nd St, #4320 Miami, FL33131-2100 305/358-2081 . Fax: 305/358-0910 www,f1oridajusticeinstitute.org " Public Service Commission 2540 Shumard Oalc Blvd, Tallahassee, FL 32399-0850 850/413-6055 www.florid~psc.C9m Regulates In-state uliIIl/es. including telephone services, Florida House ofReprese!1tatives 402 S, Monroe Street Tallahassee, FL 32399-1300 850/488-1157 (Clerk) www,flhotise,gov . Enforcement (FDLE) POBox 1489 Tailabassee, FL 32302-1489 850/410-7000 www·fdle,state.fJ.us Department ofState PL-C2. The Capitol Tallahassee, FL .32399-0250 850/245-6500 ' www.dos.state.fl.us Websltes contains all stale agencies' rules (Florida Administrative Code) and "Florida A9in/nlsl1'atlve' Weekly" detailing current agency rulema1cing Info. Office ofExecutive Clemency (parole Commission) 260]·Blair Stone Rd. Bldg. C. Room 229 Tallahassee, FL 32399-2450 850/488-2952' Services: Membership-based organization. Provides information advocacy 10 stale prisoners and Iheir Conducts families and advocates. grassroots organizing of prisoners' families and handles Impact litigation concerning civil rights / administrative law affecling prlsonen. their families and children. Publishes bi-monthly news journal. "Florida Prison Legal Perspectives. .. Florida Senate 404 S. Monroe Street Tallahassee, FL 32399-] ]00 850/487-5270 (Secretary). www.flsenate.gov . -' ... - . Websites conlain' contact Info for all state legislators: a copy of all CUl'l'enI . Florida laws (statutes): and bills Ihal have been Introduced in the Legislature and their history. Including In mtuiy instances "staff analyses" valuable for understanding legislative intent. FLORIDA . Legal Aid / Advocacy Organizations Florida Prisoners' Legal Aid Org., Inc. POBox 1069 Marion NC 28752 . www.t1oridaprlsons;net fplp@aol.com Services: Handles civil rights /ltigation ,concerning' jail / prison conditions; Makes reft"alsjor damage / civil-rights cases. Prison advocacy. .lobbying, develops strategies for alternalives 10 incarcerqtion. Florida Institutional Legal Ser., Inc. 12921 S WI" Rd, Ste 107 ##346 Newberry, FL· 32669· 3521955-2260 Fax: 3521955·2189 www.crimiitaljusticeforum.comIPrisonJ issues-FllesIFlLS Services: Legal assistance 0 Florida state prisoners. Impacl litigallon.' conditions of confinement. civil rights. medical. etc. Some individual services. Publishers "Florida Manuel for Incarcerated Parents." which is free to prisoners. . FLORIDA Attorneys Loren Rhoton, Attorney '. Rhoton & Hayman, P.A. 412 E. Madison St., Ste. 1111 Tampa, FL 33602 813/226-3138 E-mail: rbpton167@aol.com 15 Florida Prison Legal PeniJectives Specializes in Florida post conViction, airect appeals, sentence corrections, new trials, federal' habe,as corpus, 3.850,' 3.800 David W. Collins, Attorney P080xS41 . Monticello, FL 32345 850/997-8111 ' Specializes in all area ofpost conviction relief, including. appeals, 3.850, 3.800 state-federal habeas corpus. parole hearings, clemency, etc. . Daniel D. Mazar, Attorney 2153 Lee Road Winter Park, FL 32789 1-888-645·5352 (Toll free) 407/645·5352 . 407/645-3224 (Fax) Pr,ovides representation in Direct Appeals, Belated Appeals, 3.850 motions, 3.800 motions. State and Fed Habeas Corpus, Detainers. and other Post Conviction matters. Over 30 yrs. expo In criminal law. Michael Uffennan, Attorney 2022-1 Raymond Diehl.Rd Tallahassee, FL 32308 8501386-2345 . www.uffennanJaw.com ,Provides representation in State and Federal Criminal Post Conviction . Motions. Payment plans available. Cary F. Rada, Attorney. 318 N Texas Ave. Tavares, FL 32778 3521742-2778 email: info@CaryRada.com Provides State and Federal post conviction representation. Former State Prosecutor. boardcertified criminal trial l"W!er. DALEY LAW OFFICE, P.A. .901. N Gadsden St Tallahassee, FL 32~03" 8501224-5823 www.daJeylaw-office.com Provides Post Conviction, parole and clemency representation. based solely upon advertisements. 177 N. US Hwy I. Ste. 8-297 Before you decide, ask the attorney to Tequesta, FL 33469 send you'!ree written information about \ • their qualifications. Services: Grassroots organizing of people opposed to death penalty. FLORIDA BookslPublicatlonslJoumals Lw! Continuing Legal Education Pu~lications (CLE) , CLE publications are produced by the Florida Bar in collaboration with LexisNexis. These are excellent books covering Florida-specific legal topics. such as Administrative Law, Appellate Practice, Family Law. Legal Research Legal Writing. Trial Practice, Civil Law. Rules ofCourt, etc. To obtain more info and prices for available publications in the CLE series contact: LexisNexis. Attn: Order Fulfillment. 1275 Broadway. Albany, NY 12204 (phd 800/ 562-/ /97). Ask for Flo. Bar CLE Publication catalog. "Post Conviction Relief for the Florida . Prisoner" 16 Services: Pravides Jewish religious education, counseling. emergency assistance and Ie/errals 10 Jewish priSoners and theirfamilies. Kairos Outside 140,N,OrangeAve.• #180 Winter Park, FL 32789 4071 629-4948 www,klamsprisonministtv,org kairosjo@aoJ.com Services: Provides mentoring. religious minist1')', .family .reunification support and weekend r"rellls for female adults with incarcerated loved ones. A collection in. book form of Tampa ' attorney Lor-en Rhoten's Postco1fVictlon Corner' articles based on professional experience, to relevant rules' of probedure. Price $20. To order send money order,. cQ,fhier's or inmate ba"k checle to Loren Rhoten,' Attorney (ad,dress listed' in "Florida Attorneys" section above) or order online at www.rhotonpoatconviction.com Prison Connection, Inc. 1859 Polo Lake Dr. East Wellington, FL 33414 8881218-8464 www.theprisoneonnection.com seeacon@aol.com "2007 Manual" California Prison Focus 2940 16th Street. Ste. 85 San Francisco, CA 94103 WWW·prisQDS.org Government-in-the-Sunshine Manual coVering Florida Sunshine Laws (open public meetings and records laws) published by The First Amendment Foundation. P"ice. $/5.95 check or money order to: First Amendment Foundation, 336 E. College Ave., Ste 101, Tallahassee, FL 32301. Credit card orders call. 850/224-4555. or order online at www.j1ori~af.org Add 7.5% state sales tax to $/5.,95 payment. FLORIDA \ Other Groups IOrganlzat,loQs ·The hiring of an attorney is an important decision that should not be Aleph Institute 9540 Collins Ave. Surfside, FL 33154 305/ 864·5553 www,aleph-instityte,org admin@aleph-jnstityte,org Citizens United for, Alternatives to' the Death Penalty NATIONAL Newsletters/Journals Quarterly news journal reports on issues/conditions in CA SHU prisons. .Some national info. Prisoners $4 per yr., all othen $20. Sample copy $1. FAMMGrarn 1612 K. St., NW. Ste. 1400 Washington. DC 20006 www,famm.org Quarterly news journal focused on fight against mandatory minimum prison sentences. Published by Familiea. Against Mandatory Minimums - a Florida Prison ,Legal Perspectives National organization. Prisoners 510 individuals $25. professionals 550. Membership-based organization. Fortune News 53 W. 23 M St., 81b Floor New York. NY iOOlO www.fortUnesocietv.org Hepatitis C Awareness News PO Box 41803 Eugene, OR 97404 Human Kindness Foundation P.O. Box 61619 . Durham, NC 27715 / Free interfaith 'spi,itual booles and newsletter. Coalition for Prisoners Rights Newsletter P.O. Box 1911 Santa fe, NM 87504 Bi-monthly newsletter published by hepatitis C Prison Coalition with news and info about Hep C and HIVIHC,V. Free. upon request, but stamp donations needed and welcomed ,Prison-related newsleller, published' monihly. Free' 10 prisoners and their families. a/J others $12' ,per yr. Donations/stamps 'appreciated 'to help with publishinWmailing. NATIONAL Book Projects Justice Matters PO Box 40085 Portland. OR 9724,0-0085 Quarterly. newsletter published by the Western Prison Project. Prisoners 57 per year. 515 a/J others. Good resource info. ' Prison Legal News ' 2400 NW 80th St. #148 Seattle, WA 98117 . Web site: www.prisonlegalnews.org . Monthly journal carries summaries and analysis of recent prisoner rights cases, self-help litigation articles, prisonrelated news. Prisoners 5I 8 per year" 525 others. Sample copy 51. The following sources provide free books to' prisoners. However, these projects rely on volunteers and d!3natlons to operate. Whenever possible, prisoners should help. these projects ,when requesting free books by sending ! . .few stamps for postage. Requests ',' for specific books, can rarely be honored, instead" request books by type, e.~. mystery. legal, historical, novel, etc. Requests are usually limited to 2 or 3 books at ,a time. Books Through Bars 4722 Baltimore Ave. Philadelphi~ PA 19143-3503 Prison Book Program c/o Lucy Parsons Ctr. 8r. Bookstore 1306 Hancock St.• Ste 100 Quincy, MA02169 Nolo News 50 Parker St. Berkeley, CA 94710 Quarterly self-help newsleller covers (non-prison) civi/litigation Issues. 7\voyear subscription 512. Upendra Dasa . , P.O. Box 9116 Boise, tD 83707-9116 Free materials Consciousness Wayward Council Books Gai'nesville Books for Prisoners P.O. Box 12164 ' Gainesville,FL 32604 ,Offirs Buddhist materials Quarterly magazine of the Fortune society carrying wide variety of articles and info about prisons. prisoners. crimina/justice. rehabilitation, etc. Free to prisoners. , Subterranean Prison Books 9E. Gregory Pensacola, FL 32501 Liberation Prison Project P.O. Box 31527 . ' Sail Francisco, CA 94131 on Krishna Books 4 Prisoners cloGroundwork's Books 0323 Student Center La Jolla, CA~9203? Book 'em P.O. Box 71357 Pittsburg, PA 15213 MEP P.O. Box 5311 Madison, WI 53705 DC Prisoners Book Project P.O. Box 5206 Hyattsville, MD 20782 , Bound Together Bookstore Prison Literature PrOject 1369 Haight St. San Francisco, CA 94117 NATIONAL . Resource LIsts "ACLU Prisoner Assistance Directory" (Flor/da prisoners see Yolume '4 of "Prisoners and the Law" in major institutions' law library - conlow above directory.) YResource Directory for PrisonersNaJjor Prison' Dharma Service PO Box 7417 Boulder, CO 80304 www.naljor.com (Directory can be printed offwebsitefor free.) . ''National Pris~mer Resource. List" availablefree froin: Prison Book Program 1306 Hancock St, Ste 100 ' Quincy, MA 02169 Prison Boqk PJ;Oject PO Box 3,96 Amherst, MA 01004-0396 Prison Book Project P.O. Box 1146 Sharpes, FL 32959 "Resource and Organizing Guide" availablefrom: Prison activist Resource Center PO Box 339 Berkeley, CA 94701 (Donatio11lstamps ,equesled to Irq, offset printing/mailing casu.) 17 Florida Prison LegalPerspeetives 6 Tolman Rd. Peaks Island, ME 04.108 www.ndmn.org " "Directory of Programs Serving Families ofAdult Offenders" availablefree from: National Institute ofCdrrections Information Center , , 1860 Industrial Circle, Ste. A ~ngmont, CO 8050 I NDRAN is a new CURE project formed to help death row prisoners across u.s. gain access to legal, financial and community support and to assist prisoners' efforts to act as selfadvocates. NATIONAL Groups/Organizations 11le Sentencing Project· 918 F. St., NW, Ste. SOl Washington, DC 20004 2021 628.Q871 ,National Clemency Project (FPLP) 8624 Camp C01uml:ius Rd. Hixson, TIC 37343 www.nationalclemencyprojectcom • Vietnam Veterans 0'£ America 8605 Cameron St., Ste 400 Silver Sprin~ MD 20910 www.vva.org Services: Provides technical assistance to develop alte"!ative 'sentencing . programs and conducts research on criminal justice Issues. No direct, services to prisoners. Publishes "From' Felon to Freedom" a pre-release . guide for imprisoned veterans. Writefor more info. Stop Prisoner Rape 3325 WiI~hire Blvd., Ste. 340 , Los Angeles, CA 90010 Salvation Army P.O. Box 269 , Alexandria, VA 22313 Lawyer's Manual. " Copies ofthe manual are provided to prisoners at no charge. The JLM can also be downloaded and 'printed from the above website at no cost. Grant Publications Alice S. Grant P.O. Box 28812 Greenfield, WIS3228.Q812 Discount magazine subscription service for prisoners. Send SASEfor price list. Tighwad Magazines PO Box 1941 Buford, GA 30515 , Discount Magazine subscription service. Write for piice list. . (When contacting the above discount magazine services, please let them know thaI you learned about them in Florida Prison Legal Perspectives.] INTERNET .REsOURCES www.S1lt,om Has 'parolelpro~ation prograMS in almost every major city. Write for info. SPR works to elid sexual viQlence against prisoners. Counseling resource guides for prisoners qnd released rape victims, and advocates 9"e available for: AL, AZ, CA, CO, FL, GA, IL, LA, OK, OR. MI, MS, NC, NY, rx, WI or nationwide. Specffy state with request. Correct HELP . P.O. Box 46267 " West Hollywood, CA 90046 HIV Hotline 323/822·jS38 ' Provides info related to HII'. 'Contact if you can't access programs o~ are not receiving proper medication. AMnesty International, USA 322 Eighth Ave. ' New York, NY '10001 . Information on the Internet is available to prisoners with family or friends on the outside with online access who will print and mail material in. The amount ofinfo on the 'Net' is tremendouS. Info on almost any subject c:an tie found online. The, following Iisf,$ so~e websites that may be useful for'info. Legal/Legislative www·amnesty.org NATIONAL AI is an independent, international organization that works to protect human rights. . CURE (Cimens United Rehabilitation ofErrants) National Capitol Station PO Box 3210 : Washington, DC 20013. 2021789·2126 , ' for www.curenational.Qrg , Services: Organizes prisoners and their families to 'work for criminal justice reform. MflIrJI state chqpters. National Death Row Assistance Network ofCURE Claudia Whitman General Servrc:es " I Let My Fingers Do Your Typing . PO Box 4178·FPLP Winter Park, FL 32793-4178 . wW\y,lawcrawler.com Searches government and other sites for low. www.nolo.com Provides some general legal Iq/O and sells books on wide variety 'of legal topics useful to the public. I Services: Profuslonal typl,!g services by mail. Computer, typewriter, transcription, 'black/color printing and. photocopying. . Free price list upon , request. Special rates for prisoners. Center for <::onstitutional RIghts 666 Broadway New York, NY 10012 www.jailhouselaw.org, CCR is one of the organizations thaI cooperaies to produce the "Jailhouse www.findlaw.com Good site for searching out jederal and state low, www.washlaw.edu Legal search enginefor locating prlmiuy .legal sources at the federal and state levels. 18 " " Florida Prison ,Leg~1 Penp~ctives ' www,prjsonactivists,org Provides wide variety of prison-related info. ' Includes large "Link" section to many other related legal ani nonlegal web3ites. ' www.law,uO,edu University of Florida' low library website, '. www,stetson,eduldepartmentsllibmlYl1a ~ www,martjndale,qom Provides Info on lawyers nationwide. including contact Info. area ofpraclice, how long, elc. . Stetson University low library website, www,legal.fim,edu Posts the "Government in the Sunshine 'Manual" (public meetings and public records manual), , www,thomas.loc,gov ' Sourcefor federal legislative malerial, www·uscouns,gov . Links and infor,ma;ion about U.S" Supreme 'and otherfederal courts. www.call.uscourts.gov. Eleventh Circuit Couri of Appeal website. www.flnd,uscourts.gov , U.S, District Court. Nortnern Districi of Florida website. . www,flmd,uscourts,gov U,S, District Court. Middle District of Florida website. '. www,flsd,uscOurts,AAV , U.s. Distrlcl CoUl't, Southern District of Florida website. www.rnyflorida.com Linlc.s to stale agency and government offices' websltes. www,flsenate,goy www,t1house,gov Florida legislature's websites. Provides directory of state legislalors; complete Florida staMes (lows); Senate and House bills, bill histories and analyses. www,tlcourts,org Provides, directory and links to Florida , courts' webs/tes, . ' www,FCLA,edu Florida State University 'aM!' library webllte. www,law,nijami.edulJibmry University ofMiami low library website, FPLP , Ann: Resource List PO Box 1069 Marion, NC 2S7S2 mlp@aol,c:om ,I': www,tlabar,orglnewflabat/memberservic ,esICLE . , Sells continuing Legal Education series oflegal books concerning Flo. law, Florida Supreme www,tlcourts,org , Court: District Courts of Appeal: First DCA: wwwildca.org Second DCA: www.2d ca.om Third DCA: www.3dca.flxourts.om Fourth DCA: www.4d ca,org , Fifth DCA: www.Sdca.org Circuit Courts: lit Circuit: 'flWW. firsi,judicjalcifcuit.or,g '211d Ci~it; www.2ndcjrcujt.!egn.t1.us '3 td Circuit: www:jud3.flcourts,org' 4thCircuit:www,coj,netIDepartments/fou ~R+ Judjcjal+Cjrcujt+Courtldef\lult.hun S Cirtuit . ~udS,flcourts.omlcourtsljndex,htm , 6 Circuit: www.jud6.om 7th Circuit: www.cjrcUit7,org , sth Circuit: www;cjrcuit8,org' , 9th Circuit: www;njnja9,org 10th Circuit: www,judlO,org 11 th Circuit: bUp:lliudll,flcourts,org 12th Circuit: hUp:/IJ2cjrcitit.state,O,us . 13th Circuit: bUp;/liudI3,flcourts.org 14th Circuit: for information' call 8So747.5327 1Sth Circuit: W~,cg,palmbeach,f],uslcadmin 16C,rcuit.: www,iudI6,tlcourts,org i 7th Circuit: www.17th,f]courts,om 1Sib Circuit: www.jiJdI8,f]cojJrts,org 191h Circuit: www,cjrcuit19,grg 20th Circuit: www.ca.Ciis20.om FPLP updates this list on ,a continuing basis as a service to readers. Please let us 'know if yo" are aware of other resources that prisoners, their families or advocates maybe i~terested in a~ the below address or by email: ' Please feel free to copy and distribute this resource JiSllJO others. • TYPING S.£R¥J.C.E PROVID~D SINCE 199~ SpeclflcaJlydaelgn~with epecIai "'Iar..tbah'~, Black I Color PrInting and Copying , " "FORA "FREE" P'R1CC 1.1'S'T' AWl)" MO'RE INFORMATION SEND A SASE TO: LET MY FINGERS DO YOUR TYPING sandra Z. Thomas (dba) . PO Box 4178 . ·.WI~""',~l&. '. Phone: 407·579-5563 Spedal Offer: $2.00 off ftrat order. Special offer.vold after: 12/3112009 , , .. Florida's Prison Population Tops 100,000 On December· 18, 2008, the lOO,OOOth prisoner was booked into the Florida p$)n system. 'Consistent with J:DOC Secretary Walter McNeil's pro. fessed commitment to reducing recidl· vism by expanding re-entry prognuns, the FDOC says there is a great need for 'education and drug treatment programs for prisoners. FDOC officials note that almost 90% ~those in prison now will eventually, be released and making sure they have. eduCational skills is vital to help keep them from returning to prison, On the other hand, FPOC officials say that if the prison.population continues to increase as project~, 19 more prisons will need to be built over the next five years" 19 Flori~a Prison Leg~1 Perspectives Questions ~ Answers Scientia est potentia (Knowledge is power) GOt a question?FPLP has got the 8DSWeI'. Send fbJp@aol.coin. ' questions to: FPLP, Q and ~ P.O. Box 1069, Marion NC 28752, or " Q: I had a law clerk tell me duat I could DOt have or keep a copy or Cliapter 33 (ll'Iorida AdmiDistrative Code, F.A.C.) ruIfB in my locker. Is It that true! . . . \ A: No, that isn,'t t1'Ue. You cannot, by rule, obtl;lin photocopies ofFDOC rules from the law library,. even if you are,' • willing to pay for the copies. Huwever, nothing can legally, prevent you from having some one on the 'outside fron, lending you a personal copy ofsuch rules through the maJl. Gopies ofChapter 33 rules can'be prinledoffthe FDOC webatte, W1vw.dc.stme:.fI.us, or all Florida agencies' admtnisIrattve rules can be found on the PIa. DepL ofStQte website, . www.doa.statejO.us.To8avespaceandmallingcosts.itis suggested that you only have ihe ipecific section(s). ofrules . drat ~ needSelll by mail. . Q: I WlDt CO write a griewnee about buulequate medical care. Do I have to write an iDfomud grievance tint? A: No. A grieVance on a medical issue within the FDOC is initiated byfJling a formal grievance at the institutional level. U,ea Forinol Grievance (303) Form, write "Medical GrieVance" on the Jirst line ofthe form, then write your complalnL See: Rules 33-103.006, Formal Grievance-Institution or Facl/Ily LeveL . Q: I8IIl goJag • put ia lor a tnmsfer and WlDt CO'bOw whidlU.dtutiODB have what programs aDd or PRIDE . 0......... Where aalfjDd dlat iDfo'l ' . • i A: Every year, usually in February or March, the FDOC sends acoPJI ofits official Annual Report for the prior Fiscal Year to etlCh Institutiontlllibrary ~here they are available to the prison population. These Annual Reports conlllin the info you ask about along with many other usefUlfacts and statistics ab~t the FDOe. .These reports are also posted on the'FDOC~webslleem:h)'Bllr. Q: I just lot baek: aD order form the appeal court (District Court of Appeals, DCA) and it only states: Per Curiam AtIirmecL What dOlI 8latmeaa! . . ,It: EssenJtally It means that the panel ofappel/ate courtjudges (usually a panel of3 judges) who consideredyour appeal adopts or colfjlmr.r the d4c1s1on ofthe lower court (U8IIQ/1y the circuit COUI'I) which you WBre appealing. , Q: What Is a Certificate Of Service? A.' A Cl11ifJeate 01Service is a section ofa pleading or motion filed with a court, usually written on the last page, in which the ftIing JXI11Yce11IfJes to the. court that a lrJIe Copy ofthe dociinent has be~n mailed to or otherwise served on all other parties. . Q: What ,type or pievaaces 'are ftIed dtrec:tIy as.a 'folmal'grimmee (303) and bypassing the 'lDform8J Grimmee . •~! . ~ A: Emergincy grievances; grie'VD1WeS ofdisciplinary. action; grievances on reprisal; grievances ofa selisltive nature;. medical gri#1Vtl1lCU: grievanceslnvolvlng gaintJme gu.vemed by Rule 33~OI.101. F.A.C.lncentive Go/ntime: grievances challenging placement In close management (C. M.) confinement or subsequent review; grievances alleging violation(s) O/the American.s with Dlstibllities Act (JWA):, and grlmmcesconceming the retum ofincoming mail governed by RJlle 33-210.10/ (14), F.A.C See: Chap. 33-103.006, F.A.C, FonnaJ Grievances-Institution or Facility leveL Q: Where is . . Authorized PrOperty LIst fo1lDd fa'Chap. 33 Rules? , A: It Is found In section 33-602.20/, F.A.e.• Inmate Property. 20 ' ,. Florida Prison Legal Penpeetives .. . Q: Am ,I allowed to establish or run my OWD business wblle in prison? .' A: Not according to the F/XJC Chap 3j-6Q2.207. F.A.C.. states: "(/) No inmate shall establish or engage aclive{J' in a business or professio,:, while Incarcerated" and "(5) Any inmaie who attempt to 'conduct a business or profession through the moll, telephone. or tutV other avenue ofcommunication while incarcerated shall be subject to disciplinary action in .accordance with Ru!es33.601.30J -.314. F.A.C." . Q: It seems nke in the FDOC die only ones required to comply with the rules are prisoners. Aien't p'rison oftidaJs and staff also required to comply with the rults1 . A: Yes. Once formally adopted. in Florida, administrative agencies' 1Ules have the smrre "force and effict" as a law or statute. Administrative agencies. SI,Ich as the FDOC, and agenCy employees, must legally follow and obey the agency :sown rules. See: DeCtlrion v. Martinez. 537 So.2d /083 (Flo. J" DCA 1989): Woodlg v. Health and Rehabilitatiye Ser.. 505 So.2d 676 (Flo. I" DCA 1987); and Gadsen State Bank v.Lewis. 348 So.2d 343 (F14 161 DCA 1977). This principle has .been applied In prisoner litigation challen)ing d1sciplintl1'J1 proceedings. See: Williams v. Jqmes, 684 So.2d 868 (Fla. rJ DCA 19f!6), citing Turner v. Singlelmy. 623 So.3d 537 (Fla. JII DCA Ig93). A Petition for Writ ofMandmtrus is the . legal proceeding use to ~ompel an agency or ilS employees to comply with the agency's own rules. For more ti(ormation 011 MtmdIlmus see the section on same in Florida Jurisprudence 2d.,... available in FDOC law libraries. . Q: If'I file a legal cbaDenge to a prison discipliDary prOeeediDg or gaintime issue do I have to file it in Tallahassee, tile Second Judfdal Ciradt COUI't! A: It depends on what Issue you raise.' Generally, Sec. 768.28, Fla. Statutes, slates that an action against the state or lIS agencies 1IUlJ' be brought in any county in which the State or lIS agencies have an ojJice qM wherein the cause ofaction occurred In a Mandamus action. however, the ''place fixed by (aw" for performance ofa duty determines venue. 'In other wordS, the State or ilS a~cies hove a comnron law venue privilege to be sued in the place ofits central residence (such as the FDOC's central office location.in Tallahassee). However, the "home venue privilege" is subject to exceptions, one being when constilJltl01lQ1 rights (State or Federal) ate at issue. Then the Mandamus action may be brought in the county in which the constitutional duty is to be performed See: Cpnne,. v. MId-Florida Growers Inc., 541 So.2d 1252 (Flo. rt DCA J989). Ifyoujlle in the local circuit court where you are Incarcerated and the FDOC asserts home venue privilege, you can use. the "sword welder doctrine to to overcome that privilye. See: Bfl17' v. Flo. Board of Regents. 644 So.2d 333 (Flo. III DCA 1994); Grqham v. VaM, 394 So.2d J80 (FYa. 1 DCA 1981). Considerlngthe . antagonism that sOJ1!B Second JUdicial Ctn:uit Court judges have'for 019' prisoner litigation, ojtenimproperly chtuging filing fees for "collateral criminal actions" and rubber stamping petitions denied, the best practice may be to flle Mandamus act/ons locally when constitutional issues (violations) were createdat fir by the institution where you are or lIS employees. . . Q: My JaDhouse lawyer told me there are laws that are on the Florida books that DO 'one knows about. \These laws are suppose to adD be good today aDd When they are used the" court bas to let people out of prison because'tIiey don't want every one to know about them because it will cause tmmany people to have to be released. Is dJJs true oruff A: If what he is talking about is .some hidden Iaw(s) ihat have not been removed from the books or are no longer published, In the state ofFlorldD, he is pullingyour leg. All laws in' Florida are voted in or removed every two yean and occasionally a supplement is published ifthere are laws to be added or. changes In between this two years period. For the history ofany law in FlorldD you simply have to go totheFior/do Statutes Annotated, in your institutional low library, and look into IL You will.jlnd the answer to current changes, updates and/or repealed laws. There is no such thing as . hidden atallltes in the state ofFloridJJ. Q: . Is old case. law the tiDal authority for the COllJ1B, Stare Decisis? A: In'80me insttmees yes, bllt'not without referring to Shepard's to find outthe cose history./J!.dismissed, supBrseded.etc., and the most resent treatment ofthe costyi.e. conflicting authorities, overruJed,elc:- Look in thefront ofShepard's Florida Cltationfor current status o/the case. . . . 21 ·Florida PrisOD Legal Penpeetives ,Revisiting Denial of a Second or · . F d IH . Uccesslve ,e era abeas Corpus Using' Recall of the Mandate when the pleading is wholly inadequate to.overcome the reasons for not gnmting the motion. ' Let's examine the restrictions. Too often' prisoners neglect to state a federal issue. Although fililure to word a by Ricard Geftken r, cause of action for which a federal court has jurisdiction may be grounds to "prevent iqjustice," now is the time to carefully. address why the 'claim shows the denial of a Constitutional right If the claim relies on old. well eave to seek a #lCCOnd or successive.28 U.S.C. § 2254 established federal law, it is.not "new". . habeas corpus application must be made to the "new;' survival depends on one, possibly two, If appropriate U.S. Court of Appeals. Whether denied or conditions. It, is certainly valid grounds: if made approved, the A&DPA quite oddly prohibited use of the retroactive. The second possibility depends very much on no~ channels to review ~ decision iyde by the court of properly wording the pleading. Until federal courts close first instance. , the door on it, even old law is retroactive. if on direct 28 U.S.C. § 2244, (2)(E) reads: "The grant or denial of appeal of t~e issue raised in the state court for which the , an' authorization by a court of appeals to file a second or leave was sought in the first place, GrljJlth v. Kentucky successive application shall not be appealable and shall . 107 S.Ct. 708 (1987), Harper v.. Virgiilia 113 S.Ct. 2510 not be the subject of a petition for rehearing or for a writ (1993), Beardv. Banks 124 S. Ct. 2504 (2004). Notice the ofcertiorari," adjustment needed in one's mentality. It is not that you There is one way around this. Nothing prohibits a were on direct appeal. It is that the U.S. Supreme Court Motion to Recall the Mandate. The, only ground~ are has repeatedly allowed retroactivity during that period of actually somewhat broader than bring something a court time. Prisoners often the wrong thing. The court is not ove,rlooked to its attention. The ground which must be their friend. The court wants to bar granting relief. • plead and demonstrated is that, recall of fhe mandate is lh Was the claim presented to a state court at aU? Federal necessary to "prevent injustice." See e.g. Il Cir. lei. R. courts will not hear a claim which was' not fully exhausted 41~1. The wording in other U.S. Circuit Court of Appeals in the state system. may differ. , If new evidence is involved, it will' "prevent injustice" It is normally ~ier to show an injustice than an , only when clearly and cOnvincingly argued that the oversight which justices may tenaciously argue they either would of, 'been different. Prisoner pleadinga outcome did not make, or now assert they already considered when often poorly address Strick/and's prejudice prong. This Is ruling. Here, one can' argue merits for a change, Instead of a similar requirement A court won't argue it for you, nor the procedural quagmires used by Courts to avoid ruling bother to figure out what is not expressly plead. on the merits ofa case. . , The bottom line to using this tool may be securing the Nowadays, courts spend more time arguing why they assistance ofsome very good minds.• should not hear cases than they' ,do hearing cases. Procedural bars have, abdicated any claim courts remain in the business' of providing' any '~ustice" at all. Seeking recall of a mandate is one of the fe~ instruments which still cares about whethet.1be result is inherentlyjust There is also a one year time limit for filing it This is far longer than most limitation periods. However, justice can be circumvented if' careful , attention is not paid to the grounds for which a second or successive application can be allowed. 28U.S.C. § 2244(b) , states only tWo. The claim must rely on a new rule of Constitutional Law rendered retroactive. Alternately, it '.:'., . , must depend on newly discovered -evidence, and those facts, ,if proved, must clearly and convincingly show that but for the cognizable constitUtional error no finder of fact would have found the applicant guilty. . Consequently, having circumvented one procedu~1 bar, a prisoner ends up subjected to more gate keeping B~COME AMEMBER designed to condone illegal imprisonment. , The strong warning being given hopes to stop the common error of filing something without giving the matter proper thought, It is foolish to seek recall of a man~ one's only shot to reconsider denial of a leave, 22 S L I .. I ~~: " " " '·Iorida Prison Legal Perspectives Florida Prisoners' Legal Aid Organization Inc .. 1 BECOME,A MEMBER" -YES! I Wish to be~me a member ofFlorida Prisoners t LegiI Aid Organizatio~ Inc. . 1.PI~e Check ~ One: 3; Your Name aDd Address (pLEASE PRINT) [] New Membership . . 2. Select 0/ Category , . _ ,e u, N~e o DC# ~~_~~ Cl Membership Renewal AgencylLibrarylInsdtution IOrgi . , Address $IS Family/AdvoCatellndividual o sm Prisoner City Zip State .0 $30 AttomeyslProfessionals 0' .' $60 Gov't AgenciesILibrarieslOrgsJete. BnWI AddJ'!'SS and lor, Phone ~umber r:rr Please make all checlcs or :money orders payable to Florida Prisoners' Legal Aid Orgl, Inc. Please complete the above form and send it along with • the indicated membership dues to : FPLAO, Inc., P.O. Box 1069, Marton NC 28752. For family members or loved .ones of Florida prisoners who are unable to afford the basic membership dues, any contribution is acceptable for member:shlp. Memberships run one year. If you would like to make a 40natlon to FPLAO, Inc., to help the organization continue itS work for prisoner.s and their families, send donations In any amount to the same address. Thank You. All members receive Florida Prison Legal Pei7pee'ivu. . ' . . ,. .. ~' , '0.·· ~" '.: Admitted:to, tile FlondaBilt:i!i'li9J13.· '.' . f. :·i.'\~eJTi(llll1:y·years,~xperiehce:fu.,th~ :Plr~tic~ ,of.critnfnslLaw.. '. . , ! ·.."~,:i~9¥iding i'ePfe~~n~ti~D·in:,m~qt::ARpe~~~elat~~Ap'.~~$,,::~'~8~.q;;:~tigli~t3'.~Q,PL· .. .,,' ~m~~ ~$,5,.JilQti()DS;, ~tate '~dFedera~:>Pnlb~as ~O:1pus:.Pe~~o.~t"pet'iber.~~sl1es~ 'and .. t!othe'Pilos~C)nvi:ction:Matters~:" :I'_Gi,tt}lfieSi,tm.',".·, :t. II: !.~:.:~,~~' I , '; ' ',,'. " '. i ' • . ~,~' , ·,';caw. offices~of'" : ..''JJJanme.fj. ':Mtizar: ' , "r~if58~'i~e'Ri;14a:; ',' )Mifr;,ffe'¥·'P~1;i.,jJ2"3~R8'9.; . , 1J{qa:'$1!!ee::fli(if.')·~888-'~4§f$p~<·,· , 'iter: 64:~wJ 645:-:5852', . <':. 'h "":- "" ',' \. t .' _ '."',' " j. ._, .' ..• - ~'- ~.' ·fff1:X: .l4~7) 645~3~~ >::: '-~." ':' ',~. - - "", .~'j ,< '.", ., . r.:' ~ .~, .. ~ ....•,':.., t~~~~L~:,·~~_~,·~~~~~tf~~·~;~:::~t:::~~t~~vuua.~'. "~O~8 23 ~ SUBMISSION OF 1\1ATERIt\L TO FPtP Bceausc of the: IIrJC yolume of mail beinl n:ceiYed. financial considerations. IltId the inlbilily \.0 provide lndiyldusllepl UIiuMcc. memb= should 1\0( ICl'ld copies of legal documents of pend In, or potentlsl CUtl 10 FPLP without having fint conlXtN tbc satr and reoeivina directions 10 ICl'ld same. Neither FPLP. nor 11,1 scatT, are fl:IponIible for any lIll$Q!lelll:d m&lenallenl Membcn lin: n:quc:sll:d to conllnllC sending news mform&lion. newspaper cllppinp (please melude name of paper and dale), memorandums. phoIuoopic:s of final decisions III llIlpublisneduses, Illd potential articles for publieation. Please lend only copies of such malcrial th.I! do not have to be rctllrrlCd. FPLP dcpcndI on YOU, its n:adet:I and members \.0 keql informed Thank you for your coopo:ratiOll and putlcipatlOll In hclplnllO let tbc: news OIlL YOIlr errOft! are &n:lllly appn:ct-ed. 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