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FLORIDA PRISON LEGAL ers ectives VOLUME 8, ISSUE 3 FDOCGUARDS ACCUSED OF PRISONER TORTURE FIRED WEWAHITCHKA-Three Florida Department of Correction's prison guards were fired April 19 following a year-long investigation by the department into allegations they tortured a state prisoner. Fired were Lt. Cannen McLemore, Sgt. Christopher Wood and Correctional Officer Donald Guillot who were' accused of torturing prisonerWdliam Webb at Gulf ForestJy Camp, located in the rural Florida panhandle, in July 2000. DOC MAY/JUNE 2002 ISSN# 1091-8094 investigation documents allege that the guards began by slapping Webb while trying to force him to reveal information about contraband at the work camp that is located at a major Florida prison-Gulf Correctional Institution. When Webb refused to supply information he was then taken outside where the ~rds handcuffed his arms behind him around a small tree. McLemore then sprayed Webb with a chemical like ,pepper spray as Webb hung helplessly fastened to the tree. Webb believed the spray was not the same as that issued to DOC guards. DOC documents say that then the guards beat Webb, hitting him .numerous times and then left him cuffed to the tree for an "extended period of time." McLemore had worked for the DOC for 12 years, and is also a Gulf County Commissioner. Several years ago when a prison chain gang was operated out of Gulf CI, another prisoner accused McLemore of making him get on his knees where McLemore put a loaded handgun to his head and cocked it. The FDOC took no action in that case. Wood also was a 12-year veteran with the FDOe,but Guillot had only been with the DOC six months before the alleged torture of Webb took place. Webb has since been released from prison. In response to the 'firing of the three guards FDOC Secretary Michael Moore.stated, 'We have no tolerance for abuse of inmates in our custody." Moore made no comment on whether he thought Webb's abuse was another "isolated incident" as he labeled the murder of death-row prisoner Frank Valdes by guards in 1999. The allegations of Webb's treatment are far from the only allegations of abuse at prisons located in Gulf County. The main prison, Gulf Correctional, has a' widespread reputation among Florida's prison population as being one of th~ state's worse prisons, where prison guards appear to have a Dee rein to beat and abuse prisoners. According to some sources, newly arriving prisoners at Gulf CI. are often told when they get off the bus that while the town ofWewabitchka I'AMIUES ADVOCAlES PRISONERS ~ ~ UIIITED fOR !'RlSON REfORM Mandatory HlV Testing Bill Death Penalty Debate Increases 2 ~ .. . .. FDOC Annual Report Summary.............................................. Post Conviction Comer... ... .. . . .. .. .... .. .. .. Notable Cases Writing to Win 4 7 10 14 18 - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL FLORIDA PRISON LEGAL PERSPECTIVES P.o. Dol: 660-387 Chuluota, Florida 32'766 Publishing Division of: FLORIDA PRISONERS' LEGAL A~D ORG., INC A SOl (cX3) Non ProfitOrganilation FlIX (.ron 56B.0200 EmaiJ: fplp@aol.com Website: www.fplllO.org FPLAO DIRECTORS Tcn:sa A Bums-Posey Bob G. Posey, CPL DancIJ E. Blackwelder, CPL David W. Bauer, Esq. , Loren D. Rhoton, Esq. Oscar Hansen, CPL Linda Hanson FPLPSTAFF Publisher Editor Co-edltor Teresa A. Bums-Posey BobG. Posey Oscar HlIl1SOfI Shenilohnson Rcsearclt AdministnUivc Assistant Darrell E. Blackwelder FPLP ADVISORY BOARD . William VlII1 Poyck Philip Bagley-Terry Vaugim . MldJacl Lambrix-lamcs Quigley Unda Gotllieb-Susan Manning Enrique Diaz-Genc Saber Michllcl Palmcr-Mark Sherwood Trisb Mills PerspectIVes is nearb~that they are now in 'Wewillhitcba" as what will happen if they cause a problem. This statement is usually made by a higb- According to ber bill, if ' signed or allowed to become law by Gov. Jeb Bush, prisoners found to be HIV positive will be linked to health care while stiU in prison, and referred ~guard. One prisoner who just left to doctors for Medicaid bankrolled 0u1f CI after being there six years. ' treatment once they are released. claims guards murdered several The bill provides exceptions to prisoners while he was there, but prisoners who have already been nothing was ever done about it tested within the year before their because they were always covered up release, to those already known to be and the FDOC central office didn't HIV positive, or to those released by seem to care what happened there. an emergency court order. While recently, he said, the beatings The bill's passage came only have slowed down some, they still a couple o.f' months following the . are' happening, "especially in the release of a new report by the confinement unit." Centers for Disease Control in [Sources: St. Petersburg Times, Atlanta. The CDC report released in 4/20/02; personal interviews]February indicated that AIDS is the leading cause of death among blacks in Florida between the ages of 24 to 44. The CDC report also listed the 10 U.S. cities with the highest HlV/AIDS infection rates in 2000. Miami headed the list, with 58 cases per 100,000 people. Ft. Lauderdale was third (behind New York) with 53 cases per 100,000 and West Palm Beach reported 48.2 per 100,000. Disturbing to Rep. W1lson is that blacks top all other ethnic groups in total AIDS cases, about 35,000 blacks in Floricla-one in every 50 black people-carry IfiV according to TALLAHASSEE-During April the the Fla. Dept. of Health. Florida's Florida Legislature passed a bill that prison population is about 60 percent would require all prisoners being black. released from Florida Prisons to be That prisons are tested for HI\~ the virus responsible experiencing an HIVI AIDS' epidemic for AIDS. is not new news. In a report released House Bill 1289 (2002) was by the Bureau of Justice Statistics, a sponsored by Representative bureau within the u.s. Justice Frederica Wilson, D-Miami, and Department, in June 2001, it was would require the Florida noted that AIDS cases among Department of Corrections to test prisoners is five times greater than prisoners for HIV at least 60 days the rate "among the nonincarcerated before they are released from prison. general population of the United "AIDS is being fed and bred States. The BJS report, surveying in prisons," Rep. Wtlson said. prisons and jails nationwide between sexual acts, "Promiscuous 1995 and 1999, found that 3.4 intravenous drug use, needle sharing. percent of all female state prisoners and the proliferation of tattooing," were HIV positive, compared to 2.1 are mctors that contribute to HIV in percent of male prisoners. And Florida prisons, claims W1lson. while the number ofAIDS deaths in BILL PASSES LEGISLATURE FOR MANDATORY HIVTESTING OF PRISON RELEASEES ______________ 2 - - - - - - - - - - - - - FLORIDA PRISON LEGAL state prisons had dropped from \,\)\Q in 1995 to 242 in 1999, AIDS. remains the second-leading cause of death for state prisoners, only behind "natural causes other than AIDS." Still, the percentage of AIDS related deaths in state prisons is almost twice the rate of AIDS related deaths in the general U.S. population. The BJS report is of even more concern as relates to Florida. Although AIDS cases are found in every prison system, New York, Florida, and Texas were the three most infected states. Collectively, those three states account for onehalf of the HIV-positive cases in prison reported nationwide. HIV testing varies widely among prison systems. Texas and Geo~ for example, have very limited testing. Florida has previously only tested when a prisoner requests it. Other states require more ftequent testing. Some states test aU prisoners when they enter the prison system. Only three states, Arkansas, Nevada, and South Carolina, and the Federal Bureau of Prisons, test aU prisoners at least once a year. Even more problematic in Florida is while there are laws that require prison officials to provide extensive HlV/AIDS education to prisoners, the FDOC only did that when the law was first passed years ago. Now according to prison activists, very little infonnation is available to prisoners on the subject from the FDOC, and HIv-infection rates are continuing to increase. While Rep. Wilson's bill is a step in the right direction, eSpecially since 80 percent of the prison population will be released at some point, prevention, and not merely identification after the fact, needs equal enforcement, claim activists. At the time of this writing it is not known whether Gov. Bush will approve or veto the testing bill. ReP. WI1scm's first attempt to have such a bill passed in 1998 tailed because of Perspectives - - - - - - - - ' - - - - - - - the cost. 'IfHB 1289 is implemented it is exPected to cost taxpayers $1 million a year, pemaps a hard sell with the budget situation in Florida sotigbt. [Sources: BJS report, HIV in Prisons and Jails, 1999, NCJ 187456, July 2001 (available from www.ojp.us.doj.govlbjsl; The Miami . Times, 4/24 - 30102]- BOOM OR BUST The High Cost of Running a Prison Nation America, the land of freedom and liberty, imprisons more of its own citirAms than any other country in the world. In a report released by the U.S. Justice Department this past August statistics showed that the U.S. federal, state and adult correctional population rose another 2 percent in 2000, to a I'eC9rd 6.5 million people. That number represents the total number of prisoners in prisons and jails as weD as those on probation or parole. The 2 percent increase, however, was below the ~ual increase of 4 percent averaged for each year during the last dec:ade. That small slowdown may be attributed to the steady decline in the crime rates over the past decade, or to the growing realization of just what it is costing the U.S. and individual states to base a significant portion of the economy on a crime and prison industry. In February the Justice Department's Bureau of Justice Statistics released a new study showing that in 1999, the last year for which figures are available to date, the cost of America's War on Crime was $147 billion, or four $les the $36 billion spent in 1982 on criminal justice. The study noted that in 1999 almost 2.2 million people now make' their livelihoods on the criminal justice industry. That includes one million police officers, 3--- 717,000 prison and jail guards, and 455,000 people who work in the court system, according to the BIS study. The expenditure in 1999 amounted to 7.7 percent of all state and local gove~ spending, approximately the' same as aU government expenditures an health care and hospitals for the same period. The monumental cost of crime and incarceration has caused some states around the country to reevaluate laws that were adopted in the 1980's and 90's behind "lock them aU up" policies that forced many states into a prison buileting frenzy. With many states struggling with budget deficits this year, some states have realiz.ed that perhaps the "get tough" policies went too far and are now looking at ways to scale back spending an incarceration and prisons. Collectively, states report that they anticipate a $40 billion budget shortage this coming fiscal year, which ifrealized will~be one of the most burdensome deficits ever experienced. The last time states experienced substantial budget shortages was in 1991, when together they had to cut $7.6 billion, less than one-fifth of what is expected to have to be cut this coming fiscal year. Recent Justice Department statistics show that approximately $24 billion is spent by states every year now on incarcerating 1.2 million nonviolent. prisoners. Additionally, several polls have shown that public opinion is changing about incarceration as the first solution, indicating that the public is more receptive to alternative sentencing, rehabilitation, and prevention for nonviolent offenders. A recent poll by the Open Society Institute shows threIHp1arters of the public favors probation over incarceration for' nonviolent offenders and that a majority of the public favors eliminating mandatory sentencing and a return to discretiowuy _ - - - - - - - - - - - - - FLORIDA PRISON LEGAL sentencing by judges. Polls taken in California and Pennsylvania indicated that when lawmakers address state budget deficits that prism costs should be among the first cuts made. As state .budgets are tightened politicians have scaled back their crime fear-inducing rhetoric and had to rethink their incarceration policies. Even conservative states are shifting to a more moderate approach to crime. , Louisiana, Which has the highest per capita incarceratiOn rate . in the U.S., recently abolished several mandatory sentencing laws and returned sentencing discretion to judges. The move is expected to save Louisiana millions of dollars a year. Similarly, Republican-led states, including Arkansas, Connecticut, Utah and North Dakota have increased parole of nonviolent prisoners or e~ mandatory minimum sent.eQ.cing laws. Restructured sentencing guidelines in . North Carolina have resulted in nearly 10,000 offenders being diverted to alternatives to prison. West Virginia, Mississippi and Iowa recently enacted new laws to increase' alternatives to incarceration or return sentencing discretion to judges for drug or nonviolent crimes. California is reported to be saving $100 to $150 million annually with it new law that is diverting an estimated 36,000 nonviolent drug offenders into drug treatment instead ofprison. Florida also claims that it will suffer a large budget deficit next fiscal year, but its Republican-led government is pushing cuts in education and health care for the elderly rather than return to discretionary sentencing for nonviolent offenders or other ways of reducing its prison population. Gov. JOO Bush has ~ that no matter what, Florida will retain 85 percent sentencing for all who are , incarcerated. A bill was introduced to divert first time drug offenders to Perspectives - - - - - - - - - - - - - . report ofcriminal justice cmting treatment instead ofincarceration for in this year's consideration Americans $147 billion in 1999, legislative session, but the stated: "In the 1990'~ when states Legislature in Florida has bogged were flush with cash, they could do down in making any budget anything. But now they must mike decisions despite an unprecedented bard clioices, and with crime going three sessions having been held in down, they must put a price on the past six months.' Even though prisons." Florida has the third largest prison system in the U.S., and spends [Sources: BJS reports; Justice Policy almost 8 percent of its general Institute report by Judith Green and Vmcent Schiraldi (2002); New York revenue on corrections, no Times, 10/2/01 and 2/11/02; FDOC lawmakers have been brave enough Annual Report 2000-2001]to suggest that it is an area that could be reduced to save money. Approximately 45 percent of those incarcerated in Florida are nonviolent offenders, .according to Florida Department of Corrections' statistics. Almost 20 percent of the Florida prison population is incarcerated for nonviolent drug offenses. The prison system did receive some cuts this year, education was slashed at all but ,A . panel commissioned by 10 of the FDOC's 125 prison Illinois Gov. George Ryan issued its facilities and in-prison drug report April 15, 2002 recommending treatment programs eliminated at all 85 specific revisions to the state's but 4 prisons. Community capital plmisbment laws, stopping correctional drug treatment programs just short of a recommendation that were also severely reduced, which the state abolish the death penalty. collectively are almost guaranteed to The 14-member bipartisan increase recidivism rates in Florida panel's report was banded over to and cost taxpayers more in the next Gov. Ryan who indicated that after few years, according to critics of fblly reviewing the report he would these reductions. likely seek' legislative change to Ironically, even Texas with ' Illinois' capital punishment laws. its conservative policies about Ryan has become a major figure in incarceration, and having the largest the capital plmisbrnent debate in the prison population in the U.S., is U.S. where he suspended all doing more than Florida. .Texas has executions in his state in January reduced imposing technical 2000 after 13 men had been violations for parolees and increased exonemted in capital cases in Illinois. parole releases. cutting its prisoti Ryan imposed the moratorium after population by almost 8,000 prisoners he, a Republican and longtime· and saving taxpayers nilllions. supporter of the death penalty, Ohio, Michigan, Illinois, and became convinced that there wet\l other Republican-led states have major. flaws in the way capital actually closed down prisons as a punishment is imposed. cost saving measure. Virginia is The panel issuing the report, planning to close some of its prisons. which included both defenders and Michael Jacobson, a critics of capital p1rn ish ment, ibund professor at John Jay College of that without serious changes in the Criminal Justice in New York, law, and perhaps even with the best commenting on the BJS's recent safeguards, as long as the death DEATH PENALTY DEBATE INCREASES 4--------~------- - - - - - . . . : . - - - - - - - - FLORIDA PRISON LEGAL penalty is imposed innocent people may be executed. Fonner U.S. Attorney Thomas Sullivan, who co-chaired the panel, said, ''The message from this report is clear: Repair or repeal; fix the capital puniShment system or abolish it." An analysis accompanying the panel's report found that of 275 deatb-pena1ty cases in Dlinois since 1977, over half were later reversed because of trial court errors, tainted evidence and mistakes by prosecutors and defense lawyers. The report also ·supported evidence that bias may be a factor in who is sentenced to death or not. Persons ccnvicted of ~g whites. females, children or senior citizens have a higher chance of receiving the death sentence over other type killings, the report found. The Illinois report. received widespread media attention, especially when it was released only a &w days after the 100111 death-row or fonner death-row prisoner was exonerated by DNA evidence since 1973. Ray Krone, 45, was released tram Arizona'~ death-row April 8, after DNA tests showed that he had been convicted of stabbing a bartender to death in 1991 when the DNA evidence matched that of another man in prison on unrelated charges. The Illinois report and the l00~ DNA exoneration, both significant events in a fast-growing movement that is placing increasing pressure on death penahy supporters, came on the heels of another event "that has effectively placed a moratorium on executions in 9 of the 38 states with the death penalty. On 1anuary 11 of this year the U.S. Supreme Court agreed to hear an Arizm1a case that calls into question the constitutionality of whether a judge instead of the jury may decide sentencing factors that contribute to imposition of a death sentence. Nine states, including Florida, allow judges to make such decisions Perspectives - - - - - - - - - - - - - Nimer, stating, ., am hopeful that some of our education funding may be restored next fiscal year through increased profits from 1I1e canteen and inmate telephone usage which . goes into the inmate welfare trust fund." FPLAO staff is woIking hard, as usual. to keep an eye on1l1e changes occurring and a check and balance on what they can. In December FPLAO Chairperson By Bob Posey Teresa . Bums Posey ,tiawled to Tennessee for a two-day meeting Greetings, to all of Florida Prisoners' with representatives from Critical Legal Aid Organization's (FPLAO) Resistance, a national coalition members, supporters, and friends and movement calling for a moratorium welcome to this latest issue of the . on prison building and working to organiz8tion's newsletter. focus public attention on the prison These past few months have industrial complex. The been interesting, to say the least. organization's staff is alsO America luis launched its war on networking with 'several other groups terrorism and our entire society is and organizations, including being changed to deal with that. The Anmesty lDtemational and local Middle East is in turmoil and our Florida chapters of the ACLU, to country has been drawn it. In Florida increase public awareness of human our state lawma'kers, citing a budget rights abuses in Florida's prison. shortfall, haVe been stymied through In March FPLAO was three sessions in the past seven represented by (retired) attorney months (and are in a fourth at the Robert Bader at a public hearing time of this writing) trying to work requested to present opposition to an out a budget and define their political FOOC rulemaking proposal to allow positions for this November's prison staff increased authority to elections. examine the contents of incoming In Florida, prison budget . and outgoing legal and privi1egec1 cuts in December slashed into two of mail to or from prisoners. Attorneys the most beneficial programs for Susan Cary, who assists death-row prisoners-education and substance prisont?rs, Lisa White Shirley, who abuse-leavirig even more prisoners wolks with Florida Institutional idle and the system on a course to Legal Services, and an assistant experience an increase in the already public defender, also went to the high rate of recidivism. In the long hearing with objections. We are nm this will cost taxpayers many waiting now to see if. FDOC will times more than the amounts "saved" withdraw, change, or proceed to by slasbiDg education and substance adopt 1I1e proposal wchanged. abuse programs this year. FPLAO is strongly opposed to prison Florida prisoners and their officials having any increased ability families will feel the pinch as prison to examine the contents ofprisoners' administrators gear up to figure out mail to attorneys, govellllWlDt ways to force them to subsidize more officials, or the media. of the cost of incarceration. One In April, as noticed in the example of that mindset is part of a . last issue of'FPLP, Florida prisoners memo sent to all FooC wardens and and their fiunilies lost one of their education supervisors in 1anuary most ardent advocates and activists, from Director of Programs Richard exclusive of the jury. The Supreme Court is expected to rule on that case this summer, and may invalidate the .death sentences of over 800 deathrow prisoners in the nine states. (See last issue of FPU', '"Wheel of Death: Florida's Other Lottery Game.,. FROM THE EDITOR 5 - - -_ _--:--~-----.--- ---------~--- FlORIDA PRISON LEGAL Gayle Russell. Over the many years that Gayle worked at Florida Institutional Legal Services in Gainesville there is no telling how many prisoners she helped or their fiunily members. She truly cared about others. Gayie will be deeply missed by all who knew her or were ever helped by her. A11 ofFPLAO's staft: including myself: were very saddened by Gayle's passing away, but grateful to have known and worked with her.' To old-time convicts, I also note in this issue's "In Memory of ..." notice that James Bailes, "Ruckus", passed away in February. As one old con commeuted on hearing the news, "If Ruckus liked you, you couldn't have a better friend." I agree. May he be at peace. Now to the nitty-gritty. Over the past couple of years it has been mentioned several times in FPU' that the organization needs to hire someone to work full-time in the office. .All of the current staff are wlumeers, most with their own full· time jobs or businesses and families. They devote what spare time they can to keep FPLAO and this paper going for Florida prisoners and their fiunilies and loved ones. Financially, the organization functions solely' on dues paid by members, some advertisement income, and extra donations. It is often a struggle to stay afloat So fur the money just hasn't been there to hire someone for the oftke. When one of the wlunteer staff is out sick or out for other personal reasons, it's that much harder to keep everything on schedule and going. Members are asked to keep that in mind arid are reminded that FPLAO isn't the staff's organimion, it is YOUR organiation. Becoming a member isn't just about getting this paper, itS about being a part of and helping support Florida's only organization that 'is working to improve conditions for all prisoners and their fiunilies and friends and Perspectives - - - - - - - - - - - - - bring them news and resource information to help them deal with individual problems. In recent months it seems many FPLAO members have slacked off OIl recruiting others to become members, That's not good. You are needed to help the organization grow. Encourage others, inside and out, to become members. When writing to the organiation or this paper's staff, please keep letters as brief as possible and to the point. Over 300 letters are received each week, long letters bog down the staff trying to process that mail. If you write about a problem receiving FPU', state that and the problem at the beginning of your letter. If you move or are transf8rred, please complete and send in the address change form in the back of every issue. And do it as soon as possible so FPLP doesn't get sent to your old address or returned to FPLP, or thrown away by prison mailroom staff (which occurs). Right now FPLAO is ready to proceed on several projects that have been developed, including making another serious effort to reduce the prison collect telephone rates. But with membership growth stagnant and few members making donations, financing those projects may not be possible. It's important now that all members do something for the organization. If you can make a donation, large or small, please do so. Over the next few weeks, get 2 or 3 other prisoners or family .members to join the organiation. If each member, if you, will do this, by the eJid of this year we're going to have something powerful going on, and before then things are going to happen that you didn't think possible. Let's get moving people. now is the time.• PLANT CITY MAYOR, POLICE CHIEF ACCUSED OFCOVERUP PLANT CITY·Federal prosecutors accused Plant City's mayor and police chief of collaborating to hide criminal evidence against police officers targeted in a federal corruption operation. During late April Assistant . U.S. Attorney Jeffrey Del Fuoco said that Mayor Mike Sparlanan paid legal fees for police officer Armand Cotnoir to keep him from talking to federal officials about crimes that have been committed by police Chief Bill McDaniel. In exchange, c~ Del Fuoco, McDaniel agreed to hide incriminating evidence about the mayor. The accusations were presented in court documents and are the latest in a three-year federal investigation of police corruption allegations, including stealing, lying, and looking the other way. Prosecutors are claiming that police officers stole property, conducted illegal searches, filed false reports and lied to judges. Cotnoir, 27, was in~cted in February on charges of concealing knowledge of a felony, obstruction of justice, depriving and conspiring to deprive residents of their civil rights. Although neither Sparkman nor McDaniel have been charged with a crime, these· latest accusations prompted them and a city commissioner to hire a criminal defense irttorney.. . Two other former police officers, Robert David Dixon and Shawn Corgan, have already pleaded guilty in the probe being conducted by the federal government and Florida Dept. of Law Enforcement. 6----------------- - - - - - - - - - - - - - FLORIDA PRISON LEGAL The aUeged criminal activity occurred over a four-year period, from 1997 until February of this year, said prosecutors. Plant City, a town of 27,000 is located 25 miles east ofTampa. [Source: comparing the prints to any Unsolved crimes and latent prints. • St. Petersburg Times, 4/28/02] • FDOCANNUAL REPORT FY 2000 - 2001 The foUowing figures, statistics, and claims are from the' Florida Department of Correction's recently released annual report for fiscal year 2000-2001, which ran from July 1, 2000, to Jtme 30,2001: Claimed Accomplishments • Managed incarcerated 72,007 felons and ~ed 152,018 offenders on probation and parole, admitted 25,731 new inmates and carried out the lawful release of over 26,800 from the department's custody. • • CoUected approximately $83,550,000 in court-ordered payments from offenders. Of this total, $31,360.393 or 37.5 percent was paid to victims in'the form of restitution. Implemented the Automated Fingerprint Identificatian System (AFIS) at aU five reception centers. The • Completed statewide implementation of Central Visitation Authority using a new computer screen to coordinate and track visitors in institutions. The primary objective includes the rejection of visitors who may be detrimental to~. Reduced number of service centers from seven to four. • Privatized comprehensive health services in Region IV and food services statewide. • • Service Center at Dade CI to train . female offenders as service tedmicians. • Fonned educational . partnership with AAMCO TJaDSJDiSsions, Inc., to provide training of offenders at )oIk CI. • Formed partnership with the Thoroughbred Retirement Foundation to provide training for inmates at 'Marico CI in the care and handling of thoroughbred Implemented new three-year contract with Florida Drug Screening, Inc. • horses. • Connected 30 institutions and four state courts in Central and South Florida for vi~nfen:nce bearin~ • Changed close management population procedures and closed five close management units. InCl88Sed the number of offenders electronicaJ1y monitored an Global Positioning Satellite from 120 offenders to over 500. FDOCGoals Established ten fbll timo narcotic K-9 teams. • Processed 38,367 inmate grievances and developed a more consistent and efficient grievance process through use of regional and institutional grievance coordinator positions. • Assumed responsibility for conditional release interviews from the Florida Parole Commission. • Assumed monitoring of 403 Florida Parole ConuiUssion' interstate compact cases. • Fonned educational partnership program with Ford Motor Company to provide Light Mainteoance system captures high quality fingeJPrint images,' thereby positively identifying newly received inmates and establishing a criminal record for each print and Perspectives - - - - - - - - - - - - - o Create automated close management and protective management systems to streamline reviews for state classification process. Complete consolidation of the male close management population to three institutions. o Implement statutory requirements outlined in Senate Bill 912 Criminal Rehabilitation Aa. that authorizes major expansions in transition assistance for inmates. o Amend F.S. 945.215 to increase weekly inmate draw from $45 to amount specified by Secretary to be expended for personal use on 7-------- _ - - - - - - - - - - - - - - FLORIDA PRISON LEGAL canteen and vending machine items. (That was done in Dec. 2001 and weekly draw increased to $65 by the Secretary«) o I> Probation Officers, 1,973 medical 'staft: and 5,037 administrative staff. I> During the 2000-2001 fiscal the FDOC spent $1,658,319,871. The average cost per day for prisoners at major institutiOns was $49.75 ($18,159 annually). I> Amend Chapter 944.31 to give the SecretaIy authority to designate inspectors within the Office of the Inspector General as swom law enforcement officers. This action will. streamline the department's investigative process and reduce the need for outside law enforcement to respond to internal DC matters, particularly in the area of making arrests. I> I> The FDOC operates 57 major prisons (prisons with separate annexes are counted as one prison). 52 of which are male. 4 female and 1 with separate male and female units, housing a total of 60,239 prisoners of the department·s then 72,007 prison papulation. Of the 15,58~ ~!!i_cers within the Deparanent 10,838 are classified as corrcaional officers (69.5%) and 3,831 are In 2000-2001 there were 25,731 new admissions to the prison system. (almost identical to 1999-2000 at 25,743), 28.4 percent of whom were incarcerated for drug crimes, and 43.5 percent had served a prior prison sentence in Florida (recidivists). During 2000-2001 elderly new admissions (over 50 years old) totaled 1,221 (compared to 821 in fiscal year 1996-97) of which 325 or 26.6 percent were incarcerated for drug crimes. I> New admissions 17 years old or younger numbered 1,698 in fiscal year 2000-2001, with the largeSt percentage, 24.8 percent, incarcerated for burglary. I> The youngest person in Florida's prisons on June 30, 2001, was 14 years old and the oldest was 89 years old. I> On June 30, 2001, approximately IS percent of the state prison population, or 10,862 prisoners, were considered to be mentally ill. I> More than half of Florida prisoners, 63.0 percent, are serving sentences imposed 'after October I, 1995, that requires them to serve a minimum of 8S peitst of . their sentences. I> Prisoners averaged a 7.3 grade level in Florida prisons' on June 30, 2001. I> On June 30,2001, there were, 371 p,risoners on Florida's death. row (368 males, 3 females). Of that number, 225' were white males, 133 black males, 10 other males, 2 white females and I other . female. Parole Statistics on June 30, 2001 I> On June 30. 200I, the FDOC employed 25, 457 people. Of that number, 15,170 were male, 10,287 were female. Racial breakdown is 17,765 white. 6,071 ~lack, and 1.621 other. Correctional officers were 15,587 of the total, 2,860 Correctional P.R.I.D.E. industries totaled 43 at 20 prisons, had 2,560 workers and prisoner employed 213 staff' members. I> com:ctional officer sergeants (24.6%). Lieutenants make up 2.8% (435) while' cap~ comprise L7% (265). I> Asian, etc.), 67,762 were males and 4,245 were female. year Statistics as of June 30, 2001 'I> Perspectives - - - - - - - - - - - - - I> Female new admissions numbered 2,425 with 36.3 percent incarcerated for drug crimes. Of the 72,007 prisoners on , June 30, 2001, 38,852 were black, 31,308 were white, and 1,847 were others (Hispanic, American Indian, • • There were 5,682 paroleeligible prisoners Of that incarcerated. number, 296 were being imprisoned in facilities not operated by the FDOC. There were 2,252 people on parole in Florida. however, .only 825 of those were Florida parolees, the remaining 1,422 were on parole from other states, and S parolees where of unknown origin (no explanation for·who those 5 8 ,--------------- - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - - could be-ed). • In fiscal year 2000-2001 there were 101 Florida parole-eligible prisoners granted parole. Conversely, there were 101 Florida parolees who had their parole revoked and who were returned to prison. Of the '101 revocations, 6 parolees caught new charges, 9S were revoked for technical violations. The complete FDOC Annual Report for fiscal year 2000-2001 (and past fisc:al years) can be downloaded and printed (approximately 75 pages) ftom the Internet at: www.dc.state.fl.uslpub/anitual. • • '!t, ,: In memory of those who have passed on••• :~ January Feb. continued :j Willie J. Copeland· NFRC Lawrence Brown· Taylor Jimmie G. Youngerman· NFRC Frederick A. Caccavale - NFRC Gerry D. Shingles· NFRC James Bailes· NFRC Raymond W. Sims· NFRC Charles E.Morris - NFRC Lee A. Jemison· NFRC John R. Jenkins· NFRC Stephen L. Davis· Wakulla Robert S. Hall· SFRC Darrell B. Jarrett· NFRC j1 Richard G. Hale· NFRC n Gary H. Parrish· NFRC >' Archie Davis - Wakulla Johnny Mack· NFRC Jeffrey M. James· Taylor I· i; February I ; Hilleary Sawyer - Martin Dionne M. Thomas· NFRC Alfred Owens - NFRC Fabian T. Hall- NFRC .. '., . -.,~ .. . ~,\t. _. DAVID .W. COL·LINS, Attorney at La~ fonner state prosecutor with more than 15 years ofcriminal law experience "AV" mted by Martindale-Hubbell Bar Register ofPreeminent Lawyers . I Your voice in TallahaSsee representing prisoners in a/I areas ofpost-conv!ctll!n relief, including: appeals Heggscases habeas corpus .3.850 motions writs of mandamus clemency . representation before Parole Commission Write me today about your easel P.O. Box 541 Monticello, FL 32345 (8S0) 997-8111 "TIre hlrlng ofa lawyer Is an l"'Porlanl d«lslon that IhDflld not be btued lo/ely upon advertllemenls. Before you d«hIe. cui me 10 lend youfree written Information about my qrmlljieatlotl$ and uperlel1«." , 9 '. FLORIDA PRISON LEGAL Perspectives POST CONVICTION CORNER In the last issue I began addressing the filing of a Title 28 §2254 petition for writ ofhabeas corpus by a st8te inmate in the federal coUrts. Before filing any such petition, it is best to review the local roles of the federal district court before whom you are filing your petition. There are three federal districts in Florida: the northern, the middle and the southern districts. While each district court is bound by the Federal Rules of Civil Procedure (a 2254 petition is civil in nature, not criminal), each district also has local roles which must be followed. And, each district~s local roles can differ. For example, the Northern District requires that a 2254 petition be prepared on the form provided in the Appendix ofForms to the Rules Governing Section 2254 Cases, while the. Middle District does not impose such a requirement. There are many slight differences· in the requirements of the local roles so it is always advisable to review said roles and make sure that your federal habeas petition complies with the Rules of Civil Procedure and the local roles ofyour federal court. If you do not have the local roles readily available, then you should write the clerk of your district court and request a copy of said roles. The Appendix. to the Rules Governing Section 2254 Cases in the United States District Courts provides a Model Form for a §2254 habeas corpus petition. Said form will be extremely helpful to the pro se petitioner as it informs the petitioner all of the information the district court will need in order to consider the petition. It is not necessary to cite case law in your petition itself. Instead, I would recommend that a memorandum in support of your petition be filed which fleshes out your claims with supporting case law and.application of the legal standards to the facts ofyour case. It is important to plan your petition out ahead of time and make sure that you raise all of your issues in one petition. Essentially, you will want to raise all of the constitutional issues that you have already presented in your direct appeal and state postconviction motion(s). If you try to present several habeas corpus petitions to the district court any petitions after your first one will likely be considered successive. A second or successive petition by Loren Rhoton, Esq. may be dismissed if a judge finds that it fails to allege new or different grounds for relief·and the determination of the prior petition was on the merits. If it there is a finding that your petition is successive, you will need to respond by filing a response setting out why your petition should not be dismissed as a successive petition. The Appendix of Fonos to the Rules Governing Section 2254 Cases provides a form to use for this purpose entitled Petitioner's Response as to Why His Petition Should Not Be Barred Under Rule 9. When you file your 2254 .petition it is very possible that it will be assigned to a magistrate judge' instead of a federal district court judge. Title 28 U.S.C. §636 (bXIXA) authorizes the district judge in habeas corpus cases to appoint a magistrate judge to consider your 2254 petition. While the magistrate judge does not have the power to render a final and binding decision on your . case, he or she will submit to the court proposed fmdings of fact and a recommendation for a disposition of your case. Once a report and recommendation is issued by the magistrate judge, the parties to the case have 10 days from the date of the report to file objections with the district judge. If such objections are filed the objecting party may receive a de novo review of the petition. As is provided in Rule 8(b)(4) ofthe Rules Governing Section 2254 Cases in the United States District Courts: «A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept reject or modifY in whole or in part any findings or recommendations made by the magistrate judge." Therefore. if there is a report and recommendation from a magistrate judge in your case that is not to your advantage, then any harmful aspects of the report and recommendation should be objected to within' ten daYs: In addition to obtaining a de novo review of the issues, this also serves to preserve your objections for appeal. Generally, in the Eleventh Circuit Court of Appeals for the United States, a petitioner must object to the magistrate's report and recommendation in order to preserve the issue for appeal; However, this only applies if the magistrate judge 10---- _ - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL infonned the parties of the need to object within ten days. . See Wiley v. Wainwright. 709 F.3d 1412 (11 1b Cit. 1983). Thus, it is the best practice to always file written objections to the magistrate's report. It will obtain a de novo review . of the issues and facts and will preserve your right to pursue your appeal ifnecessary. There are numerous issues that can be raised in a 2254 petition. Of course, as was discussed in my last article, it is vel)' important that you first exhaust these issues at the State level before raising them in your 2254 petition. (See "Post Conviction Comer" in March-Apri~ 2002, FPLP). Because the potential issues that can be raised in a 2254 are so varied, there is no possible way I could provide an exhaustive list of such claims. Therefore, I will merely try to give some examples that I hope will be helpful. Of course the best places to look for issues to . present in your 2254 petition are in your direct appeal and any state post conviction motions that you have filed. Any issues of a constitutional (federal constitution) nature that have previously been raised will be ripe for consideration in your 2254 petition. The following are examples of issues cognizable in 2254 proceedings: *Jwy InstJUctions- Thomas y. Kemp, 800 F. 2d 1024 (Illb Cit., 1986); and, ~ v. Kemp, 762 F.2d 1449 (11 1b Cir. 1985). *Counsel's Failure to Investigate CaseSee, Futch v. Dugger, 874 F.2d 1483 (I lib Cit. 1989); Aldrich v. Wainwright, 777 F.2d 630 (lIth Cit. 1985); and, Code y. Montgomety, 799 F.2d 1481 (lIth Cit.· 1986). Perspectives - - - - - - - - - - - - - - *Issues relatingtoJurv Selection- See, Amadeo v. zant, 486 U.S. 214 (1988); and Coleman v. Kemp, 778 F.2d 1487 (l1 1b Cir.1985). * InvoluntIUy Statements to. Law Enforcement- See, Christopher v. Florida 824 F2d 836 (lllb Cit.l987); and, Cervi v. K!mm. 855 F.2d 702 (l1 1b Cir. 1988). ' *Claims Relating to InvoluntaJy PleasU.S. v. Loughery, 908 F.2d 1014 (D.C. . Cit. 1990); and, Garmon y. Lockhart; 938 F.2d 120 (8th Cit. 1991). There are many more issues that can be raised in a·2254 petition. therefore, I recommerid that you not limit yourself to the above issues. I also recommend that you not fall into the trap of thinking you did not preserve your constitutional issues at the State level because only State law was referenced in your briefs or motions. Just because federal case law was not cited, it does not mean that you did not raise the constitutional issue in the State COUlts. As long as the constitutional question was addressed, then your issue was raised and exhausted and is ripe for federal review. In my next issue I will be addressing the appeal from the denial of a 2254 petition and the RW'SUit of a certificate of appealability for pennission to appeal your case. In the meantime I wish my readers good luck with their post conviction pursuits. 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 post conviction/appellate area ofthe law. both at the State and Federal level. He has assisted hundreds ofi"carceratedpersons with their cases and has numerous written appellate opinions. 0 *Ineffective Assistance of CounselStrickland v. Washington 466 U.S. 668 (1984); and Smith v. Dugger. 911 F.2d 494 (Illb Cir. 1990). *Ineffectiveness of Appellate Counsel. Evins v. Lucey- 469 U.S. 830 (1985); and, Mayo v. Henderson, 13 F.3d 528 (2ad Cit. 1994). Florida Prisoner's Litigation Manual *Prosecutorial Misconduct- Troedel v. Dugger, 828 F.2d 670 (11 1b Cir. 1987); and, Brown v. Wainwright, 785 F.2d 1457 (lllb Cit. 1986). InflT1l1ati01l. on Prison Discipline Mandamns & Appellate Review A MUST HAVE FOR FLORIDA PRISONERS *Issues Relating to the Defendant's Competency to Stand Trial- See Wallace v. . ~ 757 F.2d 1102 (1 lib Cir. 1985); and Strickland v. Francisu, 738 F.2d 1542 (I lib Cir. 1984). Only $24.95 + $3.95 S&H ALBERT PUBLISHING CO. P.O.BOX 30280 PMB 111 PHOENIX. AZ 85046- 0280 11 _ - - - - - - - - - - - - - - FLORIDA PRISON LEGAL Worldwide Executions Almost Double In 2001 According to statistics released by Amnesty International. during April 2002, the number of government executiOns worldwide .. almost doubled in 2001 compared to 2000. The increase was attributed to an increasein~mmonsinOilim. The Amnesty report noted that 3,048 people were ~ecuted in 31 countries, up from 1,457 in 2000. China led all other 'COuntries in the number of executions in 2001, reporting 2,468 executions, up from 1,000 executed in 2000. China's increase in executions was credited to crackdown on crime, including execution of thieves and col1Upt government officials. The U.S. executed 66 people 'in 2001, the lowest number since 1996. a Innocent Man Dies in Prison MARYLAND DUring April Baltimore prosecutors admitted that a man convicted of a murder in 1991 and who died in prison in 1995' was innocent.. Henry Roberts, who died of heart failure at· age 65, had maintained his innocence in the death of his nephew. The case was reopened two years ago, and a judge has now accepted a guilty plea for the murder from another man. Installment Plan Prison Terms MINNESOTA - A state Sentencing Guidelines Commission is reviewing a proposal for some prlsonelS to do their sentences on an. insta11meat plan as an alternative to the state's current sentencing scheme. The idea started with a rura1 trial judge who decided to try something different with repeat Perspectives - - - - - - - - - - - - - DUI offenders. Instead of one Innocent on Death Row continuous prison term, Isanti NEW YORK - A federal judge in County District Judge James Dehn. New York .said he will declare the imposed staggered terms of federal death penalty incarceration. Offenders were un~onal ~ess the sentenced to serve one-tbird of their government explains why so. many time immediately, one-third a year condemned prisoners are now being later, and one-third a year after that. ~onerated. Federal Judge Jed In between those terms, if the Rakoff' said innocent people are offenders could show reform, they being sent to death row "with a could have the remaining term· frequency far greater than previously vacated. However, any violation . supposed." during the terms resulted in [Source: USA TODAY, 4/26/02] incarceration for the remainder ofthe sentence. Of the 60 cases that' Judge Dehn sentenced in that inanner, only All Prisoners to Provide 3 offenders had committed new DNA offenses over a four-year period. WASHINGTON - New legislation Judge Dehn bas considered this type was signed into law by WA. State sentencing for other crimes. Gov. Locke that requires· DNA samples t9 be taken from every prisoner in the state. both· those in Nationalize Death prison and in jails. WA currently has Penalty a DNA database of 30,000 felons. While the U.S. Supreme Court is The new law will affect an additional taking yet another look at the death 20,000. Virginia recently enacted a penalty in the U.S. (See ''Wheel of similar law. Death," FPLP Vol. 8, Iss. 2), [Source: AP, 413/02] Attorney General John Ashcroft continues his death penalty crusade. According to a recent article in Time Prison Barbershops magazine, Ashcroft recently Unregulated overruled recommendations from the CALIFORNIA - At a news U. S. Attorney in Brooklyn, N. Y., as conference held in So. Los Angeles well as from his own committee of during March AIDS activists, lawyers who review death-eligible supported by Rep. Maxine waters, cases, and instead decided to seek announced the filing of a class-action capital.punishment for Emile Dixon, federal lawsuit seeking a ban on the an alleged drug kingpin. This is the state's prison barbershops using twelfth time since he took office last unsterilized clippers. The activists year that Ashcroft bas ordered the claim thousands of prisoners have death penalty be applied when local been exposed to HIV or hepatitis U.S. prosecutors did not seek it, because of \Ulsanitary barbering according to the Death Penalty practices. State law in CA exempts Resource Council, a network of the prison system from sanitation lawyers who defend capital regulations. defendants. Kevin McNally, a death[Note: Florida has similar laws penalty defense expert, believes that ~empting prisons from the there appears to be an aggressive sanitation requirements that must be attempt, spearheaded by Ashcroft, to observed by barbers for the publicnationalize the federal death penalty. ed] [Source: Time magazine. 4/22102] [Source: Los Angeles Times, 3/12102] 12---------------- - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - , . - - - - - ~~ ;.-,.:.~ I &_H_A_Y_M_".A_N_,_P_eA_e_11 1_,_RH __O_T_O_N __ LOREN D.RHOTON Attorney At Law :"D~ ';,1] !~U r'·:=,! POST CONVICTION ATTORNEY. , k;;·:,:;;'·~~·~h:~~i·~);:'JjL~:·:· :~:"~ :/." :<~~.;'~ Lil;ji;.JiJ1iiJiji;\;L:1ii)~,A~fii{lt>li~61i/~}~·~i~·::~>~·L~~; ··:L~>,·:~·~~<~~[l ;~:~~:{>: ~':i;~:L~;p;, ~"~ ,i.,i. -;. {!:: {!::' {!:: {!:: ~:+:: ~:+:: ;:".'.J .:"., /.";- DIRECT APPEALS 'STATE POST CONVICTION SENTENCE CORRECTIONS FEDERAL PETITioNS FOR WRIT OF HABEAS CORPUS NEW TRIALS INSTITUTIONAL TRANSFERS / 1 i :':.;'~ ~t~ !".!." J:" ::. ~~l :; 412 East Madison Street Suite 1111 Tampa Florida 33602 (813) 226-3138 ; \. ,i .,., \i.;i: '. a'. !~~(I;IlI;j. he hiring of a lawyer is an important decision that should not be based solely on advertisements. .. '. ~fore you decide, ask us to.s.egclyou fr~ writtell. iJ:IJQrJ~~tion abq~t~ur gu~".fi~«9~;';, . ., "'.1 rJ,;::~~jj<\j.;...::.../' J~;~~:.6·~~ :.~:_ :.-;.: '. 2- '_'~.: _.'~, .." ,.;; ~,'. ~i:",'L...:L~; ~ .~ ··~~~~~i2i ).·1\;:J··:·(~~~0S:·l)..J1':i/.lil!(b ;~_0~~. ~.~~~·: ~lli.r,Jj·'~··\! ·/i-\"r~·:,,/ ·fjj~iii:2~·;iM·I:l' ~' .:.(, . I I'.: - - ,- -- --- h ~ / ',' < - - -- 13---- - • _ - - - - - - - - - - - - - - . FL!,RIDA p,RISON LEGAL Perspectives - - - - - - - - - - - - - - The following are summaries of recent state and federal cases that may be useful to or have a slgnifi~nt impact on Florida prisoners. Prisoners Interested In these cases should always read the full case as published In the Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Fed.); Southern Reporter 2nd Series (So.2d); Federal Supplement 2nd Series (F.Supp.2d); Federal Reporter 3rd Series (F.3d); or Supreme Court Reporter (S.Ct.). UNITED STATES COURT OF APPEALS DuPree v. Palmer, IS Fla. L. Weekly Fed. C 348 (11 th Cir 317/02) William DuPree, a state prisoner, appealed the U.S. District Court's order dismissing his civil rights complaint filed pursuant to 42 U.S.C. Section 1983. The District Court dismissed the complaint under the three strikes provision of the Prison Litigation Refonn Act (pLRA) found in 28 U.S.C. Section 1915 (g). On appeal DuPree argued that the District Court erred when it denied informa pauperis status and dismissed the complaint. Once the District Court denied' DuPree leave to proceed infonna pauperis, he attempted to revive the complaint by paying the filing fee. This effort failed. The 11 th Circuit held that the proper procedure in this circumstance was for the District Court to dismiss a complaint without prejudice when it denies a prisoner leave to proceed infonna pauperis pursuant to the three strikes provision of section 1915 (g). The prisoner does not have the option to seek informa pauperis ~ then, if denied, pay the filing fee to keep the case alive. The prisoner subject to the three strike provision must pay the full amount at the time he initiates his suit. United States v. Vangates, IS Fla. L. Weekly Fed. C 454 (I lib Cir 4/8/02) ~ issue in ~ appeal was whether certain statements made by a correctional officer we~ protected under the Fifth Amendment to the Constitution and· Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616 (1967). Specifically, Vangates contended that her conviction for deprivation of a prisoner's constitutional rights under color .of law and obstruction ofjustice should be overturned because the district Court erroneously concluded that her testimony from a previous civil trial was admissible in the criminal proceeding. The Eleventh Circuit rejected this fonner correctional officer's argument and affinned her. conviction. [Comment: Vangate5' conviction arose from her participation with other corrections officers, Srigetta Mas and RenaSymonette, who in concert with each other, physical beat prisoner Novelette Hamihon in a South Florida Detention Facility. In the civil case a settlement was reached during trial.] UNITED STATES COURTS DISTRICT Wilson v. Moore, IS Fla. L. Weekly Fed. D 211 (N.D. Fla. 216/02) Florida Prisoner Jason WIlson field a civil rights complaint against DOC officials alleging that FDOC Procedure Directive 503.001, which provides guidelines for Native American religious observances, violates his First Amendment right to freely exercise his religious beliefS and violates the Equal Protection Clause of the Fourteenth Amendment. Wilson further alleged that the Procedure Directive violates the Religious Land Use and Institutionalized Persons' Act of 2000. Pub. L. No. 106 - 274, 114 Stat. 803, codified at 42 U.S.C. Sections 2000Ce, et seq, (hereafter. referred to as RLUIPA). Prison official moved to dismiss the complaint on the grounds that: (1) Wdson failed to exhaust administrative remedies as to some ofhis claims, (2) some claims are not ripe for judicial review because Wilson lacks standing to argue those claims, and (3) some claims are barred by the statue oflimitations. The District Court reviewed the Magi$trate's Report and Recommendation and decided to adopt the report, which granted DOCs motion to dismiss in part, and denied in part. Because of the complexity of this case and the space constraints of this section, any prisoners who have been hindered from practicing their Native American religion should read the above case. The RLUIPA required prison officials to do more to accommodate the religious need of prisoners. It will benefit all religious prisoners to become familiar with this Act. Wilson v. Moore, IS Fla. L. Weekly Fed. D 215 (S.D. Fla. 211102) Florida Prisoner James Wilson sought habeas corpus relief ----------------14------ _ - - - - - - - - - - - - - - FLORIDA PRISON LEGAL -from his conviction for indirect criminal .contempt of court on the gro1D1d that it violated his First . Amendment right to freedom of speech: The indirect criminal contempt charge stemmed from a letter he wrote to his trial judge who had recused himself prior to sentencing. The letter was sent after the recusal and sentencing but during the pendency of the direct appeal for his original criminal convictions. The letter contained profdne statements. The District Court adopted the Magistrate's Report and Recommendation that recommended the petition to be granted as to the claim that indirect criminal contempt conviction was entered in violation ofpetitioner's First Amendment right to freedom of speech. The Court reasoned that the State court's failure to apply more stringent clear and present danger test to the facts of the case was c:01rtrary to, or involved an unreasonable application of clearly established federal law as detennined by the U.S. Supreme Court. Thus, the indirect criminal contempt conviction was vacated. Eleventh Circuit The instructed courts that· when faeed with out-of~urt speech that is critical of the judiciary. the courts must follow the Supreme Court's precedent, which requires a more substantial showing than that the speech tended to or was calculated to embarrass a judge. noridaSup~eCourt Winkler v.Moore, 27 Fla. L. Weekly S 373 (Fla. S.Ct. 4/25/02) lu Gomez v. Singletary, the Florida Supreme Court addressed gain time in context of prisoners who were never awarded certain types of overcrowding credits. but should have been awarded such credits. This case is a continuation of Gomez. Only three groups (Groups 3,4. and 5) were actually represented by Perspecbves - - - - - - - - - - - - - - Gomez, and the Court declined to address the remaining groups (1,2, and ·6). In this case, Mark Wmlder, Christopher Hall. and James Cross represent the remaining groups. 'In sum, the Court provided no relief to Winkler or Hall, but did grant relief to Cross. The breakdown of the offense dates and the type and amount of gain time credits are as follows: Group One: Offens" dates must fall between June 15, 1983 and June 30, 1985. Emergency' Gain Time at 98 percent of lawful capacity. Total possible· relief: 0 days: .Group Two: Offimse dates must fall between July I, 1985 and June 1. 1986. Emergency Gain Time at 98 percent of lawful capacity (defined as 133 percent of design capacity). Total possible relief 720 days. (Phase One: 330 days, Phase Two: 390 days). Group Six: Offense dates must fall between September I, 1990 and June 16, 1993. Provisional Credits at 98 percent of lawful capacity (defined as 133 percent of design capacity). Total possible relief. 822 days. [Comment: This case is very convoluted and in order to determine your eligibility for these additional awards you should consult an attorney or a law clerk within your institution.] Comer v. State. 27 Fla. L. Weekly S 245 (Fla. S. Ct. 3/14/02) Florida prisoner Sean Comer sought habeas corpus relief in the Florida Supreme Court arguing that Florida's 85 percent statute was unconstitutional. Comer based his argument on recent Supreme Court decisions: Thompson v. State. 750 So.2d 643 (Fla. 1999); Heggs v. State, 759 So.2d 620 (Fla. 2000); and Trapp v. State, 760 So.2d 924 (Fla. 2000). The Supreme Court ruled, contrary to Comer's assertion, nothing in Thompson or Heggs indicates or holds that chapter 95294 (Laws of Florida enacting the 85 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _'15 percent provision) is invalid under a single subject analysis.. In Thompson, the Court concluded that chapter 95-182, Laws of Florida, violated the single subject requirement of Florida's' Constitution and held it to be invalid in its entirety. Section 2 of the invalidated law would have only amended section 775.084, Fla. Stat., to provide that the newly created category of offenders denominated "violent career criminals" would be required to serve 85 percent of their sentences. The time window for challenging the application of 95-t82 was opened on October 1, 1995 and closed on May 24, 1997. See. Salters v. State, 758 So.2d 667 (Fla. 2000). In Beggs, the Court concluded that chapter 95-184, Laws of Florida also violated the single subject requirement and J1eld it to be invalid. Section 26 ofthe invalidated law only amended the principle gain time statute (994.275) to generally clarify which version ofthe gain time statutes should apply if an inmate had multiple sentences &bm dift'erent years. Nothing in the law required prisoners to serve 85 percent of their sentences. The time window for challenging the application of 95-184 w~s opened on October I, 1995 and closed on May 24. 1997. See, Trapp v. State. 760 So.2d 924 (Fla. 2000). While the provisian relating to serving 85 percent of. sentences imposed for "violent career criminals" created by chapter 95-182 is clearly. null and vOid after Thompson, nothing in this section effects the law regarding the service of 85 percent of sentences for other offimders. The general provision that created the requirement for seniing. 85 percent of a sentence imposed was enacted by chapter 95-294, section 2. And this enactment is not unconstitutional. Hunter v. State, 27 Fla. L. Weekly S 284 (Fla. S.Ct. 3128/02) The Supreme Court _ - - - - - - - - - - - - - FLORIDA PRISON LEGAL addressed yet another constitutional challenge to the Prison Releasee Offender Act on the grounds that it violates the prohibitions against double jeopardy and cruel and unusual punishment. The Court determined there was no merit to this latest attack and upheld the constitutionality ofthe PRRA. Major v. Slale, 27 Fla. L. Weekly S 269 (Fla. S.Ct. 3/28/02) The Florida Supreme Court has ruled that neither the trial court nor trial counsel has an affirmative obligation to advise a defendant that a plea in a pending case may have sentence enhancing consequences if the defendant commits a new ~ in the future. In so holding, the Court reaftinned an earlier decisioo rendered in Slale v. Ginebra, 511 So.2d 960 (Fla. 1987), which held that neither the trial court nor trial counsel has a duty to inform a defendant of couateral consequences ofhis guilty plea. FLORIDA DISTRICT COURTS OFArPEAL Heard v. Florida Parole Commission, 27 Fla. L. Weekly I) 637 (Fla. 2d DCA 3/20/02) Florida prisoner William Heard petitioned the First District Court of Appeal for a writ of certiorari to review an order entered by the circuit court upholding the revocation of his parole by the Florida Parole Commission. The First DCA concluded that the circuit court bad departed from the essential requirements of the law by: 1) treating Heard's habeas corpus petition as petition for writ of mandamus and requiring him to pay a filing fee. and 2) exercising jurisdiction of Heard's habeas petition even .though ,Heard is incarcerated in a county within. a different judicial circuit. The First DCA cited its prior precedent that revocation of an early release from prison under the terms a Perspectives - - - - - - - - - - - - - and conditions of an early release In his habeas p¢tion, Meyer program is properly filed in a petition sought to be returned to Kansas to for writ ofhabeas corpus. Gillard v. serve his sentence. ThB DCA denied Florida Parole Comm'm, 784 Sc.2d certiorari on the premise that the 1214, 1215 (Fla. III DCA 2001). circuit court lacked jurisdiction to consider or even grant Meyers the Further. a petition for a writ of reliefhe requested. habeas ,corpus is ~ona~ exempt from all court costs and filing 'Under the Interstate fees. Stanley v. Moore. 744 Sc.2d Corrections Compact, Florida 1160. 1161 (Fla. 111 DCA 1999). ~ Cometions officials act only as to proper jurisdiction, the petition is agents for the state Kansas. and the Florida court, lacks jurisdiction ~ be' filed in the circuit court having jurisdiction over the county in which over the length of incarceration or whether that incarceration is served the prisoner is currently incarcerated. Gillard. 784 So.2d at 1215. Thus, in Kansas or Florida. However, , because Meyer also alleged that the case should have been transferred to the proper circuit court within Florida was not complying with the Hamilton County where Heard was terms of the Compact, the Florida incarcerated when he filed his action. courts could exercise Mandamus or injunctive relief to require Dukes v. State. 27 Fla. L. Weekly D compliance. But Meyer had not 503 (Fla. III DCA 3/1102) sought such relief. The DCA In constitutional challenge instructed Meyer to seek mandamus to the 10/201lifestatute (775.087 (2)- . or injunctive relief in the circuit (7). Fla. Stal), which required court.minimum mandatory terms of imprisonment for the use ofa firearm in the commission of a felony, the First District Court of Appeal ruled the statute did not violate the separation of powers doctrine nor the How executions stack up single subject requiremeot .of the Since capital punishment was reinstatFlorida Constitution. See also, ed in 1976, there have been 769 execuNelson v. State. 27 Fla. L. Weekly D dons In the USA. States with heaviest use ofthe death penalty: 548 (Fla. 4t1l DCA 3/6102) (same). or a ---......---- [Note: The 10/2011ife statue is not to be confused with the three strikes statute, which was found unconstitutional by the Second District Court of Appeal in Tay(or v. State, 27 Fla. L. WeeklyD 250 (Fla. 2d DCA 1/23/02).] Meyer v. Moore, 27 Fla. L. Weekly D 764 (Fla. 2d DCA 413/02) Kansas prisoner. Jack Meyer. who is serving his Kansas sentence in the sate of Florida pursuant to the Interstate Corrections Compact, section 941.56, Fla. Stat.• sought certiorari to obtain .appellate review of the denial of his petition for writ ofhabeas corpus. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16 ~Thxas:264 ~ VJTginia: 85 ~ Missouri: 57 ~ Florida: 51 ~ ~ Oklahoma: 50 Louisiana: 26 In that same period. 100 convicts on their Wl:J to the death chamber have been released after being found to have been wrongly convicted. States with the most such mistakes exposed: ~ Florida: 22 ~ Illinois: 13 ~ Oklahoma: 7 ~Thxas:7 ~ArIzona:6 ~ Georgia: 6 ---.....---_ _ _ _ _ _ _ _- - - - FLORIDA PRISON LEGAL Perspecbves - - - - - - - - - - - MICHAEL V. GIORDANO AGGRESSIVE POST-CONVICTION REPRESENTATION The Law Offices of Giordano & Luchetta 412 E. Madison Stree~ Ste.824 Tampa, Florida 33602 (813) 228·0070 (813) 221-2603 FAX A STATEWIDE practice specializing in Post-Conviction Relief on both the State and Federal levels: **EXEC~ CLEMENCY** **PAROLE** ** DIRECT APPEALS ** ** HABEAS CORPUS** ** POST-CONVICnON RELIEF ** *INEFFECTIVE COUNSEL *WITHDRAWAL OF PLEA *ILLEGAL SENTENCES *ACTUAL INNOCENCE *I.N.S. DEPORTATION I am a fonner Assistant State Attorney (Felony Division Chief), Assistant Public Defender (Lead Trial Attorney), and member of the faculty at the University of Florida College ofLaw. I have devoted over24 years to the teaching and practice of criminal defense law, and I .am an author of a text· on federal practice in the Eleventh Circuit. The major thrust of my practice has been post-conviction . oriented. There is approximately 70 years of combined experience in my office, including that of a fonner Assistant United States Attorney. I do not believe you can find more experienced representation in the State ofFlorida or elsewhere. _.:....-------------17 - - - - - - - - - - - - - - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL WRITING TO WIN by Bob Posey ost people don't think about writing very much. It's something that was learned in school, or at least enough to get by, and then later taken for granted as it's only done infrequently. Ordinarily, after leaving school, the average person may write a letter now and then, make up a list for something, or have to fill out a form every once in a while. . Unless your job is one that requires you to write, it's not something that you ordinarily do very often. That can be a problem when circumstances change and sudd~y you are faced with having to write more often. That is often the case once a person goes to prison. There, you will be faced with having to write more. You write more letters to stay in touch with people on the outside. You often have to write requests and grievances to prison official to obtain information or to deal with problems that may arise. And, it you are unable to hire an attorney and wish to challenge your conviction or sentence, you will be faced with a Jot more writing, often more than you have ever done before in your life. One notable thing about legal work, it generates a large amount of paperwork. That is when you need to go back to "school" and realize that writing is a skill, an important one, that you can always learn to do more effectively. In fact, in such a case, your very freedom may depend on it. WIthout having a reason to remember, most. people forget a lot of what they learned in school about writing. You may remember the terms for words that English teachers tried to drill into you, terms like: nouns, pronoWlS, verbs, adverbs, modifiers, adjectives, and conjunctions. But how much ofwhat those tanns mean have you retained? M PerspectIves - - . . . . . , - - - - - - - - - - - And then there are sentence and paragraph construction, simple and complex sentences, the thesis sentence, punctuation, and word choice, all part of a knowledge intended to teach you how' to communicate in writing more effectively. If you have forgot most of that teaching, and ignore brushing up on it when faced with the daunting task of legal writing, you are making a serious mistake. Generally, the pwpose of legal writing is to persuade a court to rule in your favor on an issue. To compound the problem, you are going to be opposed by one or more writers on the opposite side who are attorneys and whose careers are intimately tied to the art of writing. You may think you know how to write good enough or that it doesn't matter how well you write. You may think the court must and will take into account that you are not a lawyer and give you more leeway in your legal pleadings. That ideal has even been expressed in a few court cases in the past. In Haines v. Kerner, 404 U.S. 519 (1972), a more liberal U. S. Supreme Court than eXists today, stated, in effect, that pro se prisoner legal p'eadings must. be held to less stringent standards than formal pleadings drafted by lawyers. The reality, however, is a different story. Most judges have little patience with prisoners trying to litigate. You have several strikes against you, as far as most judges are concerned, just being who you are. If you add to that poor writing skills, your pleadings are not going to be seriously considered. Any effective prison litigator will tell you that you can learn all the court rules, how to do legal research, the form for pleadings, etc., but when it comes down to it, good writing skills are essential. You may have all the law on your side, but if you can't effectively communicate in writing, the odds that you will receive the entitled relief are drastically reduced. _ _ _ _ _ _ _ _ _ _ _ _ _ _ 18 Writing, any writing, should flow. If your writing flows, it is smooth and easy to read; its logical and organized; it has an obvious beginning, middle, and end; an~ it is more likely to catch and hold your reader's attention. To achieve that flow, most experienced writers approach a Writing job in three stages. They are: planning, drafting, and revising. Planning If you plan your writing ahead of time, you can make it easier to read, more understandable, more interesting, though-provoking, and actually easier to write. Begin your planning with thinking over the writing you have to do. Give some thought to the following: • Subject. What is the subject or issue that you intend to write about? How broadly or narrowly do you need to cover the subject or issue? Is there more than one subject or issue, and if so, will your writing be clearer to your reader if each subject or issue is handled as a separate section within your overall writing? • Information Sources. What sources of information will you need to do the writing? Do you have the documentation that you will need to refer to? Have you researched the subject or issue and do you have your notes from that research bandy? • Purpose. Are you writing to: inform . readers~ persuade them, obtain some action, or a combination ofthose pwposes? • Audience. Who are your readers? How much do they already know about your topic? How interested will they be? Will they resist or oppose what you write? How much time do they have to read your material? ...:....- _ - - - - - - - - : - - - - - - - - FLORIDA PRISON LEGAL • Length. Can you write as much as you want or are there page restrictions that apply? • Forma(. Is there a particular format that you must use? If so, do you have guidelines or examplQS that you can·consuh? • Deadline. Is there a deadline for the writing to be finished? How much time will you need for each stage of your writing? Before starting to write something that will cover several ideas, topics, issues, or sections, it.is useful to create an outline or guide for what you intend to write. There are several ways to do that. You can make a list, use what is termed the branching technique, ask yourself questions, and even use freewriting. To make an outline list, write down ideas about what you are going to write or need to cover in the writing as the ideas come to you. Once on paper, you are free to rearrange the ideas, add to them, delete from them, place them in order so you can see how you will start, what is going to be needed to be covered in the body and in what order, and how you can sum it all up at the end. Make such a list for each section ofyour intended writing. The branching technique is a little more formal than just making a list, but does not need to be any more difticuh. Write the main idea at the top ofa blank sheet ofpaper and then list major supporting ideas beneath it. Leave plenty of space between ideas in case you need to add new ideas as you go. To the right of each major idea, branch out to minor ideas, drawing a line to each minor idea cxmnected to the specific major idea. Continue doing that for each major idea that you have listed. If a minor idea leads to even more specific ideas, list them to the right of the minor idea and connect them to the minor idea with a drawn line. You can use the branching technique for PerspectJ.ves - - - - - - - - - - - - - - several .main ideas, sections, topics, or issues, using a separate sh~ of .paper for each. Creating a branch diagram is an excellent way to get a visual outline of the points that you intend to write about and helps you organize those points in order of importance.. You can also use written questions to yourselfto help plan and organize' your writing. For example, news journalists are' taught to routinely ask themselves. Who? What? When? Where? Why? ,And How? when gathering material for a story. In addition to helping them get· started, these questions .ensure that they will not overlook important facts. Freewriting is another way to Instead of an informal or formal outline, simply write the thoughts that come to you about the topic. Don't worry about word choice, spelling, or m~g. Just get your thoughts down on paper. The point is to relax and break the ice on writing about the topic. This, of course, is only very rough writing, but out of it there may emerge ideas on how to organize your writing or a line of thought worth following up on. Whichever outline method . you use, taking the time to prepare an outline is never wasted time. Outlines help to organize and focus your writing, lessens the number of drafts that you may need to write, and gives you a visual guide for your writing. get your writing organized. Drafting When you begin to write your initial draft keep your planning materials-lists, branching diagrams, questions and answers,' or freewritin.g-elose to hand. . Such material will not only help you to get started, they will also help to keep your writing focused and moving. Writing tends to flow smoother when there are few stops and starts. For most types ofwriting, an introduction . announces the main point, several body paragraphs develop that point, and a conclusion sums up the main point and supporting body paragraphs. If.you are writing about several main points or issueS, consider dividing them into their :own distinct secti~. . Each section will have its own introduction, supporting' body paragraphs, and conclusion. Do not jumble topics, issues, or main points together or jump back and forth between them. If you do, not only will your writing be harder, but it will also be confusing to your reader. Your introduction is usually a paragraph SO to ISO words long. A common strategy is to open the paragraph with a few sentences that catch the reader's attention and to conclude it with a sentence setting out the . main point that will be developed in the folloWing body paragraphs. The sentence setting out the main point is called the thesis sentence. The body p3l\lgraphs are groups of sentences that support the main point. Structure body paragrap'hs so they are unified, organized, well-developed, and not too long or too short for easy reading. WIthin each body paragraph, similar to the introductory paragraph, there should be a topic sentence as to what· that paragraph is about. The topic sentence should be clear to readers and all other sentences in the paragraph should relate to it. Usually, the topic of a body paragraph will be the first sentence in the paragraph and the following sentences are added to support that topic. Sometimes a topic sentence is not necessary if the new paragraph continues to develop a topic from the last-written paragraph, or if' the details of the new paragraph unmistakenJy set out the overall topic. The conclusion should relate back to the main point, without just 19--------~------ - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL repeating it. In addition to summing up the main point and supporting body paragraphs, the conclusion may also suggest some action or seek to persuade as to why the main point should be accepted by the reader. Avoid' introducing new ideas in the conclusion or apologies and other passive endings. Conclude each section of your writing that involves a main point crisply and on a positive note. Revising Once you have your draft., you are ready to go to the next stage in your ' writing-revising. Experienced writers rarely view revising as a one-step process. The purpose of revising is to tighten up your writing by going back over it carefully and making improvements in sentence and paragraph structure, word choice, grammer, punctuation, and spelling. Do not limit yourself in revising the writing. It may be that your first draft is pretty good and only needs minor revision or corrections. However, there will be times when revision can be dramatic and necessitate dropping or whole paragraphs or combining two or three paragraphs into one. Entire sections may need to be rearranged for clarity to the reader and to improve the smooth flow of the writing. The process of revision itselfstimulates thought. One pitfall that you need to be conscious of during the revision stage is the natural tendency to review your writing from your own, and not from the reader's, perspective. You bow what you meant in your thoughts as you were writing; you have the tendency to think some details or information wasn't necessary to include as your reader will already know those details or· have that information. Sometimes that may be true, but more often what may be obvious to you is not obvious to your reader. adding Perspectives - - - - - . . ; . . . - - - - - - - - - Remember, you are writing to explain to or inform the reader, not yourself. Sometiines it is necessary to distance yourself from your draft to achieve the correct objectivity. To do that, put it aside for awhile, overnight or even longer. When you go back to it, try to look at it from your' reader's point of view. If possible, have someone else read the draft and make suggestions on how it could be made clearer. The most importarit step in your writing is proofreading it.· Proofieading is boring. but critical. If you have errors throughout your writing, the. reader is going to n~ce them and either think you dido't care enough about the writing to do it right, so why should 17, or believe that you really don't know the subject well that you are· writing about. Errors in spelling and grammer are distracting and annoying to readers. Proofreading is a special kind of readin8. It should be a slow, relaxed, and methodical search for errors. Such errors may be difficult to spot in your own writing because with the way our minds work you may "read" what you intended to write, adding words in your thoughts that are not actually written on the page. To avoid that, try reading the material out loud, speak each word as it is written. Another technique is to slowly read the material backwards, which forces you to focus on the words instead of their meaning. You can also use a ruler or other item to focus on looking at the words in a single line at a time. Take your time and try to find and correct every single error that might cause your reader to stumble and lose their train of thought. To correct spelling and expand the choice of words in your writing you should always have a good dictionary and thesaurus handy. Good writing skills are not something that you are born with or that will naturally come to you, even if you write a million pages. You can, however learn them, and with practice they will become a natural part of your writing. This is the first in a series ofarticles designed to encourage you to thin/c about fII7d improve your writing skills. Future artic/~s in this series will explore other aspects of writing fundamentals and oJftr practical suggestions to improve comprehension of legal writing. research, and analysis. • PROSECUTORS GIVE UP ON VALDES' MURDER STARK-The deeisian was announced May 10 by a state prosecutor that aU charges would be dropped against five prison guards who had been accused of involvement in the brutal SUlIIIping murder offlOrIda cfeath.row prisoner FIlIIlk Valdes on July 17, 1999. State Attorney Bill Cervone dropped second-degree murder charges apinst fonner FDOC prison guards Andm¥ Lewis, 32; Monln2 Lucas, 33; Donald Stanford, 53; Dewey Beck, 54. Charges wen: also dropped apinst Robert Sauls, 39, who was to be tried for conspiracy to commit agravatecl battery, battery on an inmate and om~al misconduct. The decision to drop charges against the remaining ,five ofeight Florida State Prison guards came less than three months after the first three gwsrds wen: tried and acquitted ofsecond-degree murder bade in Febnwy of this year. (See last issue of FPLP). One of the main reasons cited by Cervone for dropping the remaining charges was the difficulty in picking an impllrtial jwy to hear the case in the area where prisans dominate the economy•. Circuit Judge Lally Turner, who was elected to the beuc:h by residents who depend on prisons for their living, refused to allow the trials to be held in another location where an impanial jwy could be found. FIlIIlk Valdes was on ckath-row for killing a Palm Beach County prison guard in 1989 during a botched attempt to help a prisoner escape. Medic:al examiners testified in the FebNlU)' trial against Captain Timothy Thomton, 36, lIIId Sgb. Charles Brown, 28, and Jason Griffis, 29, thlll Valdes was beaten to death. probably while handc:uffed and sbackJed. Valdes had fiucaIres of his sternum, vcrteblll:, nose and jaw, lIIong with numerous internal injuries lIIId crushed testicles, and there were boot prints on his fiIce, neck, abdomen and bllCk. Cervone said information on the c:asc has been forwarded to the u.S. Iustic:e Department. : 20--------------- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - - - ESQUIRE & ASSOCIATES PARALEGAL SERVICES 515 HOLIDAY TERRACE BRANDON, FLORIDA 33511 Phone: (813) 657-1738 Fax; (813) 657-1978 Need a Tl:Plstl.. typ.lng of all kinds E-mail: EsgllSS9C@botmall.com Richard D.SparIanan Supervising Attorney Darrell E. Blackwelder Managing Paralegal • Free Initial Consultation • Record Reviews . • Obtain Records '. Written SWDJJ18JY of Findings Word Pl'OC888lng Desktop Publishing Black I Color Printing & Copying Electronic Mailing Faxing Resume Coli Binding laminating etc. .oo • Investigations • Locate Wiblesses • DiScover Critical Facts • Secure Expert Wiblesses • LexislNexis Research • Research Summaries on Specific Questions • • • Docwnent Preparation • Motions • 3.800 • 3,850 ., Petitions • Habeas Corpus • Mandamus' _. SPECIAL DfFER" , : Mention this AD In the :- : FPLP and receive 5% discount : ~ on total pages typed. ~ . . I ' CALL OR WRITE £'E'I' !My :JIN(j'£'RS 'DO yO'l1'R 'I'YPIN(j 1911 Marcia Dr., Orlando, FL 32807 Fax: 407·737·1635 407-273-4099 • Certiorari OPEN 2417 • Briefs .• Memorandwns of Law • Lawyer Referrals FAMILIES * ADVOCATES. PRISONERS Onthe Web Now/ , ' During June 2002F1orfdiliPrisonerll'Legai Aid Organlzlltfon, Inc. (FPLAO), launched an exciting and Innovative new website. Over the. next few.w8eKs andrnonths this site will become 8 major'source of flews, Information, resourCllsand .dvocacy for florida prisoners and their fllmill~,frI.ncl8, .ndroved ~ ones. Spread the neWs about: , www.fplao.org News • Resources - Family Issues· Parole • florida prisons· Grass Roots Activism • FAQ's - Myths & Facts about the florida prison system - Bulleti,n Boards· Telephone Rate Monopoly - Civil Rights • How To Information • FDOC Rule making • Family Visitation· Post Conviction News· Parents in Prison· Reports· Inmate Welfare Trust Fund • Links - Legal Assistance Sources • Upcoming Events - Maintaining Family Contact - Getting Involved - Abuse Alerts • Interactive Site - Courts & Cases • and much, much,more. ' Now Available: Become an FPLAO member, renew a membership; or make a donation onOne. 21-------------- FLORIDA PRISON LEGAL Talkative Prisoners' Tunnel Found by David M. Reutter After seven prisoners at Zephyrhills Correctional Institution (lCI) were caught digging a tunnel to escape from, the FDOC tried to hide its investigation ofthe incident. The St. Petersburg Times filed two public records request with FDOC that went unanswered. FDOC finally released, in March 2002, over 500 pages of documents after the Times filed a lawsuit. The investigation of the .escape attempt reveals the verbosity of the prisoners foiled their plans, and that lapses in security allowed them to get close to their objective. The prisoners, Richard Seibert, Robert Fennell, Joshua Knerr, Paul RusseU, Henry Shelton, Raymond Eldridge, and Mark Guglielmo, had access to heavy tools, and thanks to an unlocked gate and rigged door, aCcess to an old warehouse on lCI grounds. They were also fortunate to have a supervisor who left them alone for hours at a time, which allowed them to dig almost daily from I:00 p.m. to 3:00 p.m. The digging was done with shovels made from old metal fan blades. They st8rted in the old warehouse by D donn with a concrete drill bit, and they cut a rectangle. in the floor just wide enough to squeeze through. While one or two were digging, the others would watch for "the man" or hide dirt. The dirt was put into plastic bags or pillowcases and hid above air conditioning ducts in the ceiling. The prisoners dug to 8 nearby mobile classroom structure with a metal skirting around the bottom, allowing them to dump aU the dirt they wanted without detection. From the structure, only 40 feet away was the woods. The plan was to escape in April 200 I and fade into the crowd of the Livestock Music Festival where one of the Perspectives - - - - - - - - - - - - - - - prisoners' cousins would leave a car stocked ,,:ith clothing and handguns. Then, on to Tampa to switch cars and 8 trip to Daytona Beach. But, as is so usual within the FDOC these days, someone snitched before the plan bore fruit. The snitch, murderer Robert Pasquipce, informed prison officials of his knowledge on March I, 200 I. In return, Pasquince wanted· a transfer to another FDOC prison where his brother is serving 2 ~ years. After that, he wanted an interstate compact transfer to New Jersey. Pasquince told investigators he befriended the seven prisoners while getting a tattoo. Pasquince said the seven began talking in riddles about escaping, and they talked about the "Texas Seven." They said that group made mistakes They had and they wouldn't considered every detail, even the clothes they would wear out of the tunnel: shorts made from sweatshirts with Nike Swooshes on them. Evidently, the one detail they forgot was keeping their mouths shut. IJ.tvestigators say as many as 10 other prisoners likely knew ofthe plot. The investigation revealed that lax security at ZCI allowed the prisoners to get within 40 feet of the perimeter fence. Their immediate supervisor, who left the seven alone for hours at a time, said a teacher in a nearby classroom building was watching them. The teacher denied he was ever asked to watch the seven. In clear violation of FDOC . policy, no one kept tabs on the tools the seven Jhad access to. Although FDOC cited six ZCI staff members for negligence, all remain employed atZCI. FDOC did impose sanctions on the staff involved. Sgt. Arthur written Stowell received a reprimand. Colonel Ronnie Edwards received a record of counseling to pay closer attention to his duties. Paul Bradley, a maintenance and construction supervisor was suspended for 30 workdays. Albert Guedes, a temporary worker, was suspended for IS workdays. FDOC spokeswoman Debbie Buchanan admitted the staff's lack of attentiveness aided the, escape attempt, but said security and tool control have been tightened up since the attempt. The prisoners, although certainly receiving a transfer and close management, had nothing to lose. Most were serving life sentences. As a result, the PascoPinellas State Attorney's Office decided .not to prosecute because another conviction would mean nothing. Had the prisoners truly paid attention to every detail as they professed, they had everything to gain. • (Source: Times,3/9/02.) 0 St Petersburg RESTORATION OF CIVIL RIGHTS The American Civil Liberties Union recently commended the Florida Department of Corrections for making it easier for felons who have completed their lime to have their civil rights restored. But the ACLU will ask Gov. Bush 10 make the restoration of rights automatic for felons who SUccessfully complete all the tenns and conditions of their sentences. A Website www.staie.O.uS{l.pcJexc!ern.htmlbas a link to a new application for getting rights restored. The application no longer requires felons to obtain certified copies of court records or . processing by the chief judge or the prosecutor. Florida is one of only eight states that does not automatically restore the right to vote to fclons who complete their sentences. [Source: St. Pete Times, 412SI02) : NOTICE FPLAO. Inc., recently acquired three new directors: Oscar Hanson. his wife. Undo Hanson. and Darrell Blackwelder. All three bring 0 wealth of experience and knowledge to Fonner FPLAO and are very welcome. director Darryl McGlamery has retired from ~e board of directors and is WIshed the best In Mure endeavors while thanked for all he did for FPLAO. 22-------------- - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL 1. PleaSe Cbeck .t One: 3. Your Name and Address· (PLEASE PRINT) _ _ _ _ _ _ _ _ _ _ _ _ _.DC# (] Membership Renewal o Perspectives - - - - - - - - - - - - - - - _ Name New Membership AgencylLibrarylInstitution IOrg! Address 2. Select 0/ Category (] SIS Family/AdvocatelIndividual City Zip State (] S9 Prisoner .Email Address and lor Phone Number (] S30 AttomeysIProfessionals (] $60 Gov't AgencieslLibrariesiOrgsJete. 4. Additional Donation I understand that FPLAO depends on its members to grow and operate effectively. Therefore, I would like to make an additional donation of: FAMIUES ADVOCATES PRISONERS S10 $25S50 S100 $250 Other UNITED FOR PRISON REFORM co- Please make all checks or money orders payable to: Florida Prisoners' Legal Aid Organization, Inc. Please complete the above fonn and send it with the indicated membership dues or subscription iunount to: Florida Prisoners' Legal Aid Organization Inc.. P.O. Box 660-387. Chuluota, FL 32766. For family members or loved ones ofFlorida prisoners who arc unable to afford the basic membership dues, any contribution is acceptable for membership. New, unused. US postage stamps arc acceptable from prisoners for mC:lllbership dues. Memberships run one year. Prisoners: Have a free copy of FPLP sent to a family member or friend on the outside. Simply send us their name and address on this fonn. PLEASE PRINT. If so, please complete the below Jnformation and maD It to FPLP so that the mailing list can be updated: NEW ADDRESS (pLEASE PRINT CL~Y) Name Address Name City lust. State Zip @ co- Complete and Mall to: FLORIDA PRISON LEGAL PERSPECTIVES P.o. Box 660-387, Chuluota. FL 32766 Address City State ZiP. @Mall to: FPLP, P.O. BOJ: 666-387, Chuluota. FL 32766 23 - - - - - - - : . - - - - - - - - - - - ADVERTISING NonCE CONTACTS PRISON LEGAL NEWS The Florida Corrections Commissioa is ccnnposcd of aBbI citizcDs selected by the SO'UUCI' to 01/U'UIe the ~ of the flgrida Dqm1mcm of Com:cUcns. The Commission mn:kes ~ons to the gcJ\'cmot nmt stllte legWJUure canccming IlJ'Oblem lRl1S within the prison system. The Commiuion wel~mCs iDput &om.1he public ida11ifying problan iD'C3S. The Commissicm's l1CIivi1ies Cl1D be found on ds website. ~ Commission is independe:m from the FDOC. Prlstm Ugal NrwJ is :a 36 p.1ge monthly mnguine which b3s been published sizlcc 1990. II is edited by WaslJiDlllUD swe prisoner PmtI Wright. Each issue is pac:bd with summaries mut :maJysis of recent court decisions &om arcund the countJy dealing with prisoner rights and written &om 3 prisoner pcnpcctive. TIl: magazine oftcrl cmms unicles &om llttomcys gMq flow.to !itigmicm :idYisc. Also inc:Iw!cd in e3dI issue llJ'C news articles d=lIing wi1h prison-Rl41ed stnIggle ond l!l:tivism £rom the U.S. l!J1d lUVWtd ~ world. Annual subsaiption m1cs are StS for priso=s. If you em'l aff'otd to send SI8 III once. scizd at least S9 lWI PIN \lliU promtc lire isMs a1 S1.50 cadl (Of a six momb subscriptimJ. New lind lIDuscd postage stmnps or embossed envelopes lMy be used M payment. For non-incln:cnlted individuals, the yc:uty 5lIbsc:ription me is SB. lnstiMiozml or profc:ssional (attorneys, libr.1rics. govmuncnt ngcncics, orpizmions) subscriptioa mcs arc S60 11 Yem'. A wnple copy of PLN is avnilable for SI. To subscribe to PLN, COl1UCt: • PrUtm UgaI News ].100 NW 80th StI'U1 PMBU8 SUBMISSION OF MATERIAL TO Due to a concern for our members, the FPLP staff tries to cnswe that advertisers in these pages are reputable and qualificct to provide the savices being offemJ. We cannol meet every advertiser, however, so members are advised to always personally contacl advertisers for further information on their qualifications and experience before making a decision to hire an attorney or other professional service provider. You should never send legal or other. documents· 10 an advertiser before contacting them and receiving directions to send such material. For those wishing lO advertise in FPLP, please wrilc for rate information. Address such mail to: Florida Prison Legal Perspectives Attn: Advertising P.O. Box 660-387 Chuluota. FL 32766 Or Email: FPLP@ao1.com FPLP Because of the large volume of mail being rceeived. financinl considerations, and the inability to provide individual legal assistance, members should not send copies of ·legaI documents of pending or pot£l'ltial cases lO FPLP without having first c:ontaded the staff and receiving directions to send same. Neither FPLP. nor its staff, are responsible for any unsoliciled mll1erial senl Members are requested lO aintinue sending news infonnation, newspaper clippings (please include name of' paper and eWe), memorandums, photocopies of final decisions in unpUblished cases, and potential articles for publication. Please send only copies of such ml1lcrial that do not have tQ be returned. FPLP depends on YOU, its readers and members to keep informed. Thank you for your coopemtion and participlUion in helping to get the news out. Your efforts an:: greatly appreciated. FloTlda CO~ctI01U CommwJOIJ 2601 Blair Stone Road TaIJa1uJSsee. FL 32399-2500 Phil (850) 413·9330 Enroll: jcoTcom@maiLdc.slalejl.us Websile: http://wwwjcc.stale.jl.usI Additional: Jrrnrtlte Bank lriformatlon Toll Free: (850) 488-6866 Email Addresses: Gov. Jcb Bush - jeb. bruI@JnyjIOTtda.com Michael Moore, FDOC - Sutttle. WA 98i17 see PLNs WebsitD at IrItp:/iWrtIw.pfUOlt/ega/llewl.org nrtJOI'e. mJcJuzel@nttJILdc.stI1Je.jl.1Lf pie!se, cheCk yourm~lIlng;,'lebel;~odetelmihe yourtertn Qf.< ._. to FPLP.- ~n; th~-_;tqp nne of the ma.iliiigISbel- will ~~ -. •.da.lei such-.j~; ~~N-o¥04~. That dattt inQieatesthe tl)$t'l.n()gttl arad' yt~r.~~ of' Y9,~r eutten1rnem~ef'$hip with F.=PL;AC>- or ,~'u_ption--~t9::; f;P~~_ P• • •·t-.kEt-,th!Jirne to compretethe.·en-eiosed-·fO.r:m,: '~Q ~t"1'ew -your -mtJrtl.biireoipandlor- sUbSQl1pti~n- ,before _tai~:,~ ~xP.iratiDn date. - . - -'..'~ tn~mbership andlotlaSl' month of SUt)Sctiptioli 'ftt.J.1,-"tred? ,~ngt_daddte$S NON-PROFIT PO Box 660-887 U.S. POSTAGE PAID Chuluotll PI 32766 OVlEDO.Fl PERMIT NO. 65 i 1 __, - Moving? Florida Prison Logo. Porspoctlv8S If-so, pr~comprete-,#I,c::] thai:, the ':membershiiic; 'c"anse' form'$O roilS-and mailing rlst-cantle-updated. Thank youl VolumeS 'Ssue:3.-.Mav/Juna2002 _ : .. :~,~< - I