Fplp May Jun 2007

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FLORIDA PRISON LEGAL

ers ectives
ISSN# 1091-8094

. VOLUME 13 ISSYE 3

MAY/JUNE 2007

The cbange, while not as drastic as Gov. Crist said
he waDted, is a major step for Florida, which bans more
people from voting than any other state. Gov. Crist
init!a11y wanted the automatic restoration to apply to all
.ex-felons
except those convicted of murder ·or sex crimes.
by Teresa Bums Posey
However. two other Republican members of the clemency
board rejected that proposal.
Under the approved
A fter enduring years of lawsuits and growing
criticism,
th
compromise,
c:onvicted
murderers,
and people clas~ified
1""\.on April 5,2001. Florida became the 48 state to at
as
sexual
predators
and
violent
career
criminals will still
least in part, allow the automatic restoration of civil rig)a
have
to
go
through
a
protracted
process
and have their
for ex-felons after they c;omplete their senten<:e.
'.
rights
specifically
restomi
by
the
clemency
board before
Living up to a campaign promise. Florida's new
they
can
regain
the
right
to
vote.
Florida's
new attorney
sovemor. Charlie Crist. persuaded the state's clemency
general.
Bill
McCollum,
a
Republican,
was
the
only board
board, made. up of the governor and three Cabinet
.
member
who
did
not
want
any
change.
members. to change the clemency rules to let most
. ." "I ~d it because it's the right thing to do," Crist
convicted felonS easily regain their civil rights. to vote,
S8U1.
Political consequences are not a concern of mine.
serve on a jury, and obtain state issued licenses. after
This
is
absolutely
the right thing to do."
completion oftheir sentences.
.
Florida
bas
as maiJy as 950,000 disenfranchised
Gov. Crist, in announcing the change, said it was
ex-felons,
more
than
any othet single state. Even though
time for Florida to "leave the offensive. ranks" of states
other
.states
have
repealed
or scaled back simililr voting
that uniformly deny ex-offenders such rights. For years.
bans
m
~ years.' an estimated five million ex-felons
Florida bas been one of only three states (including .
remain barred from the polls nationwide.
Kentucky and Virginia) that did not automatically restore
Florida's ban, added to the State Constitution
ex-felons' voting rights.
during
Reconstruction following the war between the
After some compromises. Crist got two of his
states
to.
in laIge part, bar blacks from voting, and
three colleagues who make up the Board of Executive
readopted
in
1968. bas been the subject of bitter debate
Clemency to approve a new policy that aDows most
since
the
2000
presidential election. A number of legal
Flo~ ex-~lons to automatically regain their rightS after
voters
were
removed
from the state's voter rolls that year
servmg thetr sentence and paying any ·court-ordemi
(and
barred
from
voting)
after being "misidentified" as
restitution.
felons. contributing to giving President Bush a razor-thin
victory margin.

Florida Adopts Automatic
Restoration of Civil Rights
For Most Ex-offenders

_.j::'.j>'~',

"
d"

THE
INSIDE

P~N Loses Lawsuit Appeal

.- :
E~ght Guards Charged: Torture. Sexual. Physical Abuse
~Is~bance at Marion CI Sparks Lockdown

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Challengmg Continued Retention in CM

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:>FLORIDA PRISONERS''l.:EGAl AID ORGANIZAi:I(jNII~C:_
t;·.:..

.,..
A SO1(c)(3) Non.proti~ OrgW\iUtion'

'. 'i~;"

c(.'.-'"

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'.,

FPLAOrURECTORS'
. Teresa-Burns-Posey
Bobl?,osey, GLA '
David W.'Bauer, Esq. '
, Loren D. Rhoton,Esq;

'FPLPSTAFF

, Teresa~umS~"'osey;.

,?u~lisher

Bob Pcisey' ,','
SheniJohnson

"'Editor' .
'ReSearch

AtlthonyStuart :'
"-:.

Mission Not Accomplished
There is a catch to the new restoration process, the
80 percent of ex-felons who are now eligible for automatic
restoration still have to apply to receive their rights back.
Because of the, incompetency of the Parole Conunission
ifl()rida Prisoners' Legal Aid Organization, ~c." P.O. B~xJSl1,
(which bas claimed for years that 60 percent of its time
.lChrisunas. '" FL 32709, publishes FLORIDA PRISON LEGAL
~~~PECTIVES (FPLP) up to six times a year. FPLP,isa non-pro~t ,
and budget and one-third. of its approximately 160
. puBlication focusing on the Florida prison and Criminal jUstice
employees bas been devoted to clemency investigations),
,SyStems. FPLP providiis', a vehicle for news, infomlation, and
there is an estimated bacldog of 30,000 clemency
resOurces affecting;prisoners, their families, friends, 10,Ved ones" and
applications
pending review. Added to the estimated
ht~e-,:general public of Florida. Reduction ,of crime ~d recidivism,
950,000 ex-felons who reside in Florida without their civil
',~,~Jenance of fam)ly. ties, civil rights" improving' conditions qt
·~nf.inement. promoting skilled', court ,acce~ for prisoners; anil
rightS and you have almost l-million people eligible for
\p~qr'0tlng'accoill'itabilily of prisori officials are' all' issues ',FPLPls
(almost) automatic rights restoration.
aeslgned to address. FPl!'s non-attorney vo.lunteer :staff.cann,ot
"It is unclear whether the Department of
~~~pond 10 requestsfor leg~.1 advice. Due to.the volilme of mail that Is
Corrections bas the capacity to identify and locate almost
'. ~ved and volunteer starr'limitations, all corr:cspondence that Is
'teceived cannot be responded to; but all mail will receive individual,
I-million ex-offenders short of launching a costly public
,'@Jtcritlon. Pennlss,i~n l~ $flinted to reprint material appearlrig inFPlP
outreach campaign, and it is an open question whether the
!.il!llldoes nOl indicate'i,t is coprnghted provided that ~l.P arid, any
Parole Commission... bas the capacity to administer the
!i1i~iCated auth9r,are:l~entified ',In the reprint and.a copy pf the'
additional
caseload," said Mark Scblakrnan, an attorney
~dblJCation In 'whICh ih~materiallspi.Jblisbed isprovidC4 10 !he:
and program director for the· Rethinking Restoration of
:~Ji.P~P publi~her., T\lls .publi~ion i~ nor IJlCanI 10, be 'a ~bst.itute, (or;
(!Je~'()r'ot!ter,professlonaladv,ce. The malerlalin FPLP should n!lt
Civil Rights in Florida project at Florida State
,J'i;;t¢lIed upOn' as, au!horitatlveand may Not, contaln sufficient
University's Center for the AdvancCment of Human
(1.nfji!Jitati()n~0 deal with Ii ,legal problem. FPLP ~s automat~ca1lysen,t
Rights.
Schlabnan's conunents appeared as an editorial
:i!b;.,.llll> lJIembers 'of FPLAO, Inc. as a .membership benefit.
in the St. Petersburg Times on April 14, where he
~M~bership dues for FPLAOj:Inc., operate yearly and are $10 'or
":PJ1!!Oners, '$15 for family members and other private individualsi$30' . expressed that the temptation to declare "mission
>

'fo(l!t!omeys, and $60 foi agen~ies, libraries, and Inst1tuti()ns.

2 .!.'"

'.'

Florida Prison Legal Perspectives
accomplished" must be resisted, because the job on rights
restoration is not complete.
Pointing out the above filet, that it is not clear how
Florida intends to locate and restore.the rights of-almost 1million ex-felons who are now eligible for restoration
upon application under the new process, ScbJaJanan also.
noted other barriers. The major one being the requirement
that makes restitution payment a condition for rights
restoration. If an ex-offender can't get a living-wage job
because rights restoration is a prerequisite for almost 100
state occupational licenses and various jobs requiring state
certification, then it's improbable they can make
restitution payments.
Rather than tying rights resto~on to satisfaction
of restitution, and since crime victims have historically
colleCted little court-ordered restitution anyway, the
Legislature should enhance applicable enforcement to
facilitate restitution along the lines of legislation enacted
years ago' to address delinquent cbild care payment,
SchJalanan suggests.
Further, Schlakman argues, die Legislature should
also implement the Governor's Ex-otrender Task Force's
recent recommendations to decouple employment and
licensing from rights restoration. It should also prohibit
state agencies and boards' from imposing such bars
without implementing more meaningful criteria for
eligibility, taking into account public safety conc:ems that
might be unique to any given job. (FPLP previously
reported on the Governor's Ex..()ffender Task Force in
Vol. 13, Iss. I). '
It is clear that more is going to have to be done to
make automatic rights restoration ~ingful. Unless
Florida puts more effort into developing strategies that
promote rehabilitation while incarc:erated and successful
re-entry upon rel~ from prison the state will continue to
have one of the highest recidivisril rates in the country and
the whole rights restoration issue will remain largely
meaningless in the big picture. •
-CommentaryA Felon's Right to Vote'
by Richard Gefiken

lorida recently decided to restore voting rights. to
"some" ex-felons. Only two states remain which do
not, but two more important issues remain.
.
The first is continuing to not allow prisoners to
vote while they are imprisoned. 1bat would place a cbedc
on overly harsh laws, encourage fairer treatment of
prisoners, and states like New ~ have never bad
a problem with it.
The second invol~ no one baving ever explained,
why a violation of a state law should disentiancbise
anyone from voting infede.ral elections.
, Pleading states' rights may offer some'
jl}Stification for prohibiting state prisoners fiom voting in

state elections. However, no state court ~tence ever
added that a prisoner could no longer vote in federal
elections. No state court bas jurisdiction or authority to do
such a thing because it is· very much a federal matter
involving federal rights.
With 2.3 million voters locked up, and many
elections decided by slim margins, addressing this issue
could bave an impact on the world "our" elected officials
created wbeil most ofus weren't looking.•

. FDOe Opens Meditation
Prograin at Lowell C I
by Melvin Perez

he Florida DOC bas started a meditation program at
loweD CI. Prison officials say that the program is
being adopted with the intention of reducing recidivism.
Similar programs have helped other prisoners in other
states: dropping the typical recidivism rate of 40 percent to
SO perc:ent to as low as II percent in one Texas prison.
The adoption of the program at Lowell C 1 is good
news to Kinlock C. Walpole, who is Director of the
Gateless Gate Zen Center, a GainesviIle-based group that
works with prisoners, and to many others that were
interested in the program. Director Walpole bas worked
very hard for ~ trying to start the program, which
involves the 'following;

•
•
•
•
•

Mindfulness meditation
Body awareness and relaxation exercises
Light stretching and body'work
Briefleclures and discussions
Daily homework

Prisoners will also ,learn to: manage eveI)'day
for their well-being, tune into
their bRatb to calm their bOdy and mind, relax and let go
of tensions, and develop skills for controlling pain and
gaining a neW perspective on beaIing.
stress, take responsibility

Some .female prisoners at the Lowell institution
say, the program has helped them in their daily prison life.
"If a crisis comes along, 1 can ~ it go on by me, and 1
don't have to be involved," said Pamela Hartley, SO, of
AugusIa, GA., whO is doiDg time on a seccmd-degrec.
murder charge. Another prisoner that bas taken part in tho

program is Ann Coc:bran, 42, of Daytona Beach. When
asked about the program she said, "I see now 1 can help
other people learn the things I've learned." She also
stated that the piosram bas helped her remain calm in
stresstU1 situations. The program is taught by six
volunteers that bad to undergo intensive training at the
University of Massachusetts Medical School's Center for
MiDdfuJness ,in Medicine, Health Care and Society to be
qualified to teach the mediation program.
3

Florida Prison Legal Perspectives
The Benefits.of Meditation
The practice of meditation has many benefits.
Among them are lowering levels -of distress (negative
stress), relaxing one's mind and muscles, the ability to,
think better, to remain calm in stressful situations, and an
overall improvement in your immune system. The
. benefits depend on the type of mediation one practices.
Some types of mediation where breathing techniques are
incorporated also help yoU with your blood circulation,
lowers your heart rate, and develops your inner strength.
All important filctors to overall health.
Meditation, an ADcient Practice
Meditation techniques have been around for
centuries, and have been practiced in many cultures. The
Chinese have practiced mediation techniques such as TaiChi and Chi-Kung from ancient times. The Hindu also
have a long history of Yoga. While in a similar manner,
the Japanese have a long history iil the practice ofZen.
In summary, Florida DOC by opening this
meditation program, has given Lowell prisoners an
opportunity to benefit from this ancient practice.
Hopefully, DOC will see that the program at Lowell is a
start in the right direction, and with time other prisoners
may want to benefit from this program at other institutions .
around the State ofFlorida.•

FDOC Prison Guard Assaulted

OCorrectional lnstitution had to be taken to
Tallahassee Memorial Hospital after allegedly being
n April 12, 2007, a prison guard at JefTorson

beaten by prisoner Steven Gambles.
• FDOC spokeswoman Greta Plessinger said th8t
Correctional Office Randall Handley, 57, was hospitalized
in "serious" condition after being beaten by Gambles in an
"unprovoked attack."
"This wasn't a fight. . It was a completely
unprovoked attack," said Plessinger. ~ wben questioned
further by reporters, Plessinger refused to provide any
details on the circumstances that may ha:ve lead Gambles,
who only had a 5-year sentence and who was scheduled to
be released in September of this year, to attack Handley
and severely beat him. Plessinger ~d say no weapon was
involved, clarifying earlier erroneous reports that Handley
. had been stabbed.
.
Gambles, 42, who was senteoced to 5 years in
2002 on charges oui of Palm Beach County for robbery,
resisting arrest, and 888. Battery on a LEO, was
immediately transferred to Florida State Prison from
Jefferson CI. Plessinger said the FDOC was investigating
the incident and' will hand its findi"&" over to the State
Attorney's Office. Criminal charges were expected to be
filed against Gambles. Assaulting a Florida prison guard
carries a minimum IS-year sentence.
4

In Oct. 2004. Gambles was accused. of assaulting
another prisoner at Calhoun CI. Allegedly a guard came
by the cell and saw Gambles' 40-yr-old cell mate with
blood on his face. Plessinger said Gambles'allegedly told
the guard that the other man didn't fight back when he hit
him several times in the head and chest.
FOOC Secretary Jim McDonough and Gov.
Charlie Crist visited Handley at the hospital the day after
he was admitted.
According to the FDOC, in Fiscal Year 2005-06,
there were 551 assaults on guards by prisoners, 19 of
whom had to receive outside medical attention. The
FOOC did' not identifY in how many of those alleged
assaults prisOners were defending themselves when the
"assault" occurred (it is common for prisoners to be
cbarged with assault OD guards, when in filet it was the
prisoner who was assaulted, in order to justify injuries the
prisoner may suffer). The FOOC does not release
statistics to the mainstream media on how many reports
are made by prisoners each Fiscal Year that they were
assaulted by correctional staff. •

Prison Legal News
Loses Lawsuit.Appeal
Against FDOC

I n 2004 PrisOn L.egal News,

(PLN), a national monthly
magazine, filed a federal lawsuit against the secretary of
the Florida Department of Corrections (FDOC) and
several Florida prison wardens for prohibiting prisoners
from receiving the magazine, and for taking disciplinary
action against a Florida prisoner who received
cmnpeosatiOD for writins articles for publication in PLN.
The lawsuit alleged that FDOC officials had violated
PLN's First Amendment. rights by refusing to allow
prisoners to receive the publication because it contains
advertisement for companies that offer reduced-fee
telephone calling services to prisoners' families and by
punishing the prisoner who wrote articles for PLN.
(Previously reported on a FPLP Vol. 10, Issues I and 6).
After a bench trial in 2005, the federal district
court ruled against PLN, essentially holding the PLN had
nat suffimd any significant injury under the First
Amendment for the cenSorship of the public8tion sent to
prisoners, and will suffer no future injury, because -FOOC .
changed its rules to allow prisoners to receive publications
containing advertisements "incidental" to the publi~on.
Further, the court. held that no constitutional injury was
suffered by p'misJunmt of PLN's prisoner writer, David
Reutter, because the FDOC had shown that prisoners "do
not have a constitutional right to earn a living by t
conducting business with the outside world, and that
includes selling anicles for publication." The coon found
that FOOC has "valid objectives involving prison
security" for prohibiting prisoners from engaging in any

Florida ,Prison Legal Perspectives
profit-making business while in prison, and that PLN
concems." The ,appeal court apeed" and affirmed the
had not shown that it suffered by not COInpensating the
decision of tbC disbict, court on that issue, ssatiD& "the
prisoner writer, who continued to have articles published
FDOC was free to invoke. the rule Preventio& .inmates
by PLN after being disciplined and having the
from receiving compensation from outside business
activities in this situation...·
compensation cut off. (FPLP, Vol. II, Issue 5 &. 6, pg.
27; Prison Legal News v. Crosby, et. al., Case No. 3:04As to the second issue raised, the
CV-14-J-16TEM (M. D. FIa. 2005.»
impoundmeotIrejeetion of PLN, the ap~ court .noted
PLN appealed the decision of the district court
that PLN "does not clJallenge FDOC~: rules and
and now, in an unpublished decision, the Eleventh Circuit
procedures for Impounding tmd reviewing publications on
Court of Appeals in Atlanta recently affirmed the lower
their face." Rather. the 'court wrote, PLN argued that
court's decision. (Prison Legal News \/. McDonough, et.
FDOC's practice of impounding publications based on
al., Case No. 05-14738 (11mCir. 2006.»
,
advertisements violated its First Amendmeut rights and
On appeal. PLN raised two issues: (1) whether
that an injunction was required to prevent further
the FOOC's prohibition against inmates n:ceiving
censorship.
compensation for' writing violates PLN's 'First
The appeal court glaringly avoided addressing
Amendment rights as a' publisher, and (2) whether the
whether the past censorship of the magazine violated
district court erred in denying PLN's request for a
PLN's rigbts and instead found that becaw!e FDOChad
pennanent injunction prohibiting moe from impounding
amended its roles after being sued by PLN (to allow
PLN's publication based on advertisement content.
prisoners to receive publicatioos containing "incidental"
The appeal court found that PLN presented no . ~) that PLN's request for an injunction to
evidence showing the FDOC's "no business" rule bad'any
prevent future c:eosorsbip for the same reason was moOt.
impact on its ability to publish the magazine, citing The
In support the appeal court cited to Tawwab v. Metz, 554
Pitt News v. Fisher, 215 F.3d 354, 366 (3d Cir. 2000)
F.2d 22, 24 (2d Cir. 1977), and US v. Concentrated
(denying injunctive relief because newspaper merely
Phosphate &port Ass'n• . 89
361, 364 (1968).
showed that challenged role negatively impacted its
Therefore, the appeal .court affirmed the district court's
decision
on that issue also.
.
profitability, but failed to show how rule infringed on its
.
: .
First Amendment right), cert. denied, 121 S.Ct. 857
(2001).
.
[Note: The Southern Poverty Law Center, The Southern
The court found that PLN's argument that the rule
~ for Human Rights, and the Society of Professional
improperly dissuades inmates from expressing the troth
Journalists all filed amici curiae briefs on PLN's behalf in
about prison conditions is belied by the met that Reutter
the appeai, to no aWil.-ectitor) continued to write· for publication, despite not having the
incentive of compensation. And, wrote the court. PLN bas
First DCA Judge Accused'
continued to publish on its monthly schedule and Reutter
of Ethics Violation
has continued to submit articles for publication, despite
his compensation being cut off.
Further, the court detennined, that to the extent
n May 3, 2007. FlOrida's Judicial Qualifications
FDOC's "no business" rule infiinges on inmates'
Commissioo filed an ethics complaint with the
Florida Supreme Court asainst First District Court of
Amendment rights, the FDOC bas a 'Jegitimate peoaJogical
Appeal Judge Michael Allen.
.
interest in preventing inmates from receiving
The JQC's probable cause complaint indicates'
compensation from outside business activities, citing to
that the Conunission bas reason to believe that Judge
Turner v. Safley, 91 S.Ct 2254, 2261, 2263 (1987). In
that· case the Supreme Court stated that a prison's
Allen may have violated the judicial code of ethics over
his sugestion in a published' case opinion that a fellow
restriction on First Amendment rights is 'pennissible if it is
"reasonably related" to "legitimate penalogicaJ interests"
DCA judge violated the public trust by participatiDg in a
former ,Florida seoate pretrideot'_ bn"bery, ~ . appeal .
and is not an "exaggerated response" to' such objectives.
FOOC claimed that it bad such· legitimate interests in
aItbougb be bad a conflict of iDterest
prohibiting prisoners from engaging in business, i.e., that
Judge Allen's attorney. Bruce Rosow, said he bas
never beard of an appeal court judge being disciplined in
the FOOC would beconiC entangled in the business
Florida, or anywhere in the United States, over something
activities; that such business activities would perpetuate
written in a public court opinion.
fraud, extortion, and disputes among prisoners and the.
, public; that there would be increased administrative, costs
Rogow claims' that· filing-' the cidmplaiDt· against
Allen is an attack on judicial independence. "It re8lly bas
(to FDOC) associated with increased business activity;
,a chilling effect on appellate judicial independence, t,
and that' FDOC would not be able to ~vely control
Rogowsaid.
.
prisoners' interactions.. The district court bad stated that it
Last year the First DCA upheld the. conviction of
was "not willing to override these legitimate penalogical
fonner Senate President W. D. Childen, 73, which 5
'type

S.o.

rust

Florida Prison Legal Perspectives
stemmed from his subsequent service as an Eseambia
County conunissioner. .
..
. Childers, Who was president of the state Senate in
the early 19808. is currently serving a 3-~ year sentence at.
the Glades CI Work Camp in Southern Florida for bn"bing
a fellow county commissioner to vote for the county to
purchase a defunct sOccer complex.
(
In a Concurring opinion to the majority opinion of
the appeal court last year, Judge Allen accused fellow
District Judge' Charles Kahn of misconduct for
participating in 'the, appeal because he was a fonner law
partner of Fred Levm.a close. friend of Childers. Allen
also suggested in his written opinion that Levin has
profited in a big way from his friendship with Childers.
The JQC alleged that _Allen violated judicial
canons by- writing conunents without regard 'to the truth
based on newSpaper articles that were not in "the rec;ord
before the appeal court and that Allen admitted he could '
not verify.

Advertise in FPLP
Reach new clients or customers .through advertising in
Florida Prison L.egal Perspectives. To obtain advertising and
rate information write or email
'us at:

FPLP
Attn: Advertising,
15232 E. Colonial 'Dr.
Orlando, FL 32826-5134 '

Or
fplp@aol.com

[Source: Florida Times-Union, 5/4/07]

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Fonner state prosecutor with more than 20 years of criminal law experience
"AV" rated by Martiildale-Hubbell Bar"register of Preeminent Lawyers . Your voice in Tallahassee representing prisoners in all areas of post-conviction relief:
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Monticello, ,FL 32345
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"The hiring oca lawyer is an important decision that should not be based solely uponadvel1isements. Before you decide,
,

ask me to send you free writt~n infonnation about my qualifications and experience." -

Florida Prison Legal Perspectives

FDOCRevamps
Execution Procedure

T
it

that actual torture, sexual and physical abuse of prisoners
was common at the prison.
.
The eight guards charged in the warrants issued by the
Fort Myers' State Attorney face a combined 23 state
criminal charges, including battery on inmates, failure to
report battery on inmates and grand theft.
Those named in the warrants were identified as fonner
sergeants Philip Barger, 30, James Brown, 34, Randy
Hazen, 29, William Thiessen, 35, and Stephen Whitney,
33, and former correctional officers Kevin Filipowicz, 24,
Ruben Ibarra, 23, and Gabriel Cotilla, 23.
The eight charged had formerly been employed ~t
Hendry CI, a minimum to medium-security 60S-bed
men's prison located near Ft. Myers. All of~e~ had been
fired in' mid-March following an investigation started
when another guard, not implicated in any wrongdoing,
found and reported fresh bruises on a confinement
prisoner's neck.
Quring a news conference following the issuance of the
warrants, FDOC Secretary Jim McDonough described the
~ormer prison guards' actions as "improper, illegal,
mhuman."

he botched execution of Angel Diaz on Dec. 13
resulted in all executions being halted in Florida while
commission was created to investigate the state's use of
lethal injection. In March the commission released its
report and proposed 37 'changes to how Florida executes
.those sentenced to death. During May the Florida
Department of Corrections announced that executions
could resume shortly under new procedures that adopt the
proposals recommended by the commission with some
minor modifications.
.
The changes will include a bigger execution chamber, a
narrator to describe the procedure to witnesses as it
proceeds, and more training for execution team members.
Diaz's execution lasted 34 minutes, more than ~ice as
long as it was suppose to take. And witnesses ~ported that
he appeared to be writhing in pain, prompting speculation
that the chemicals u~ may cause pain rather than a quiet,
painlesS death. The FDOC, however, claimed that the
problem was dislodged IVs, not the chemicals themselves.
Shades of Abu Ghraib
Under the new procedures the same drugs will be used,
Invoking visions of the now infamous abuse of Iraqi
.although the commission had recommended that they be
by U.S. military personal at Abu Ghraib prison
prisoners
reevaluated.
'
that
shoc~ed
the world, when photographs surfaced
Mark Elliott, director of Floridians for Alternatives to
exhibiting
torture,
physical and sexual abuse, the FDOC
the Death Penalty. said no fundamental "Changes are being
investigation
report'
on the former Hendry CI guards
made and that, the chance for botched executions still
alleges
that
similar
abuse
has been occurring right here at
exists. "It's trying to fine-tune a flawed procedure," Elliott
home,
in
at
least
one
Florida
prison.
said.
McDonough
said
that
during the course of
FDOC Secretary Jim McDonough said that under the
investigating
the
neck
bruises
on one prisoner other
new procedures the warden overseeing executions and the
incidents
were
substantiated
by
prison
investigators and
.
execution team itself will no longer come from Florida
turned
over
to
Ft.
Myers
State
Attorney
Steve Russell,
State Prison where the executions are held. That, he said,
whose
office
then
issued·the
warrants.
The
other
incidents
will prevent having anyone directly involved in executions
were
so
bad,
Secretary
McDonough
also
discussed
the
who' has any prior interaction with those people' being·
department's findings with federal officials because
executed. _
'
possible federal civil rights violations had occurred at·the
prison.
"These were heinous acts,': said.McDonough, a fonner
U.S. Army colonel who was picked last year to run the
- Eight Guards Charged FDOC by former Gov,' Jeb Bush after a string of scan«tals .
lead'to the former secretary, James Crosby, being forced
Torture, Sexual and
to resign and later being charged and sentenced to federal
Physical Abuse ~eged
prison for corruption. As for the incidents at Hendry CI
that are now coming to light, McDonough said, "There
.
A rrest warrants were issued May 8, 2007, for eight was a sadistic level to them."
During the FDOC investigation, several years of
~onner Florida Department of Correction's Hendry,
reports on use-of-fo~ against prisoners were reviewed.
Correctional Institution prison guards.' The guards had
Some guards' names repeatedly showed up in the reports,
p~viously ~n fired over incidents surrounding a
some more than SO times.
pnsoner havmg been beaten and choked unconscious by a
McDonough said the reports gave investigators a
gang of guards at the Squth Florida prison. (See article' in
pattern
that lead them to interview prisoners who had
FPLP, Vol. 13, Iss. 2.) FDOC investigation reports now
claimed
to have been abused and brutalized by guards in
allege that more than one prisoner waS abused and imply
the confinement unit at Hendry CI (those claims had been
7

Florida Prison Legal Perspectives
dismissed by· HCI officials and FDOC griev'ance
personnel when brought to their attention). The reports
and interviews resulted in a picture emerging of a group of
brutal sadistic guards, said McDonough.
"These were not spontaneous involvements There was
deliberate planning," McDonough now says. McDonough
had initially claimed that the beating and choking of the
prisoner in March that started the investigation was an
"isolated incident," a term that his predecessor James
Crosby was fond of using to minimize scandals during his
tenure as secretary.
FDOC investigation documents and the criminal
warrants shed some light on just what has been' occurring
at Hendry eI. Claims were substantiated that numerous
prisoners had been beaten and choked unconscious. Some
prisone~ had been forced by prison guards to clean toilets
with their tongues. In other instances, prisoners were
forced to chose between performing sex acts on guards or
performing other acts like eating food off the floor like an
animal. Often, no matter what choice was made, the
prisoners were beat and brutalized by guards.
, Although there are video cameras now in most
confinement units at Florida prisons, the cameras are
usually positioned so that nothing can be seen of what
actually goes on inside confinement cells and there are
blind spots that the cameras don't cover. OtherWise, there
may have been Abu Ghraih-like photos from Hendry CI.
To his credit, McDonough has now directed that new
policies be implemented requiring all uses-of-force to be
videotaped in the prisons.
Same 01 Same 01 ?
The eight former guards turned themselves in on the
same day the warrants were issued. They were all released
on $1,000 bail. All of the former guards except James
Brown were charged with first degree misdemeanors for
abusing prisoners while Brown was charged with grand
, theft. State prosecutors gave no explanation for why the
former guards were only charged with misdemeanors,
which appears odd considering the FDOC investigation
findings.
[Sources: FDOC reports; Gainesville Sun 519/07 and
5/10/07] •

Disturbance at
Marion CI Sparks
Lockdown

he Marion Correctional Institution was locked down
May 19 when a prisoner and a prison guard got into a
fight and over 100 other prisoners initially refused to
8 return to their housing units.

The incident occurred about 1:45 p.m. on a Saturday on
the recreation yard of the 1,200-bed prison for men
located near Lowell, Florida. According to sketchy
information released by the Department of Corrections,
several hundred prisoners were on the rec yard when a
prisoner "attacked" a DOC sergeant. Other prisoners may
have joined the "attack," said DOC spokesman Randy
Cunningham.
Other guards broke up the fight, Cunningham said, but
then over 100 prisoners refused to return to their housing.
Eventually the prisoners were convinced to go to their
housi,ng and the institution was placed on lockdown with
.limited movement and visiting not allowed on Sunday.
The FDOC refused to identifY the guard who was
allegedly "attacked," sayipg only that he had refused
hospital treatment, and claiming that the incident was
under investigation.
After the investigation is completed, Cunningham said,
possible disciplinary action and/or criminal charges could
be filed against the prisoners involved.
.
While the FDOC was unwilling to discuss what may
have sparked the incident, Marion ci prisoners claim it
was part of growing frustration among prisoners over
"controlled movement," which places restrictions on
prisoners freedom of movement around the institution.
Prisoners report that the prison was locked do~ for 3
days.
[Soum.es: Gainesville Sun, 5121107;

•

~arion

CI prisoners]

Legislature Denies Compensation For
Wrongly Convicted Ex-Prisoner
Alan crotzer, an ex-prisoner who spent more
years
for a double rape he didn't commit
Iwasn mid-May,
denied compensation. Crotzer petitioned
Legislature
than 24

in pri~on

to pass two bills. One for his wrongful conviction, and another
bill that would help other ex-prisoners that have been wrongly
convicted receive compensation. However, the Senate rejected
both bills.
.
Another ex-prisoner who was wrongly convicted of rape,
Wilton DOOge, was awarded 52 million in 2005. Crotzer asked '
the Legislature to award him $1.25 million for the time he
sp~nt in prison.
Gov. Charlie Crist pledged his support on the Capitol steps
. to help Crotzer receive compensation. Despite the fact that the
Legislature rejected both bills, the House gave Crotzer a
standing ovation.
Twenty-one states provide compensation for ex-prisoners
who are wrongly convicted. "So it's time for Florida," Crotzer
said.
In 2004 the President approved a law that would allow for
people wrongly convicted to receive $50,000 for every year
spent in prison. However, when the Legislature left town.
Crotzer had not received a peMy.•

Florida Prison Legal Perspectives
.

POST CONVICTION
CORNER.

.,
by Loren Rhoton. Esq.

Befor~a court may accept a guilty or nolo contendere' plea, there must be an
affirmative showing that the plea was intelligent and vQl\Jntary.· Ashley v. State,
614 So.2d 486 (Fla. 1993); Boykin v. Alabama, 395 U.S. 23,8 (1969). For a plea
to be' knowing and intelligent the defendant must understand ,the reasonable
consequences ofthe plea. Ashley at 488. In the context.of defendants.who are not
U.S. Citizens, the Florida Rules, of Criminal Procedure expressly require trial ,
. courts to advise the defendant that,a guiltY plea may subject him to deportation.
Fla. R. Crim. P. 3. I72(c)(8)..Said notification is mandatory, as the rule states:
"this admonition shall be given to all defendants in all cases." Id. (emphasis
added). Therefore, the lack ofadvice regarding deportation can· invalidate a guilty
or nolo contendere plea, thus allowing a defendant to withdraw such a plea ifhe
wishes to do so. Florida courts have, held that failure to so inform a defendant
about the potential deportation aspect of a 'criminal conviction requires reversal so
as to allow the defendant to withdraw his plea. Sanders v. State, 685' So.2d 1385
'(Fla. 4th DCA 1997).
T4e prop~r procedural v,ehicle for attacking a'plea on the basis of a violation
ofRule 3J 12(c)(8) is a Flotida Rule of Criminal Procedure 3.850 Motion for
Postconviction Relief. Wood v. State, 750 So.2d 592 (1999). In order to obtain
postconviction relief based on a violation ofthe rule requiring a trial court to
inform a defendant who is not a United States citizen that his plea of guilty or nolo
·contendere might subject him to deportation, a defendant must establish that: (l)
he did not know the plea might result in deportation; (2) the plea could possibly
subject him to deportation; and (3) had he known of the possible consequence, he
would not have enteredth~ plea. Statev.Green, 944 So.2d 208 (Fla. 2006).
In the 3.850 m9tion, the movant must allege how ~t will1;>e proven that the
necessary deportation warning'was not given. Id. at 218.
'
, Rule 3. I72(c)(8) is not complied with when the'ortly evidence ofa
defendant's knowledge regarding possible deportation is found within a preprinted
plea form. Hen LinLu V. State, 683 'So~2d 1110(Fla. 4th DCA 1996). A trial
court must verbally confirm that the defendant read and understood the '
irrtmigration consequences of his guilty plea. Id.
It is -also not sufficient for a trial court t,o assume that defense counsel would
, have provided the necessary deportation warnings to the defendant. In Lshady v.
State, 783 So.2d 275 (Fla. 3d DCA 2001), trial counsel t~stified that he typically

Florida Prison Legal Perspectives

informed clients of potential deportation proceedings, but did not have an
independent recollection of doing so in that case. k4 at 276. The trial court
s~bsequently denied post-conviction relief based upon c~unsel's indication that he
generally went over immigration consequences of a plea. l!h. The Third District
Court of Appeal found that the trial court abused its discretion in deducing that
since counsel typically advised' clients ofiminigration consequences, he must have
, done so in the cas~ in q~estion. Id. That court further held that: "The court's
deduction is, at best,. an assumption that the trial attqrney did in fact advise his
client iri this instance that he may face deportation proceedings.· We find that an
assumption is not enough to comply with the mandate ofRule 3.1 72(c)(S)." Id. In
short, there can be no substitution (or the mandated court warning regarding
deportation.
. ,
As with any other issue raised in a Rule 3.S50 motion, allegations ofa
violation of Rule 3.172(c)(S) are subject to a two-year period ofJimitations.$ee
Rule' 3.S50(b). The motion to withdraw the plea based upon the lack ofa court
warning regarding deportation must be brought within two years of either: (1) the
time at which the judgment and sentence becomes final; or, (2) for cases which
were final prior to October 26, 200~, before October 26, 200S. See stat~ v.Green,
944 So.2d 20S (Fla. 2006). See Green at 219. Any such motion,flled outside of .
the applicable period of limitations will be denied as untimely. Otherwise, as long
as the necessary allegations are made for withdrawal ofthe plea, based upon a "
violation of3J 72(c)(S), an evidentiary hearing should be granted so that the
movaqt,can put on the necessary evidence to demonstrate that withdrawal ofthe
plea is,proper.
Loren Rhoton is a member in good standing with the Florida Bar
and a member 0/the Florida Bar Appel/ate P;actice Settiim. Mr.
Rhoton practices almost exclusively in the postconvictionlappe!late
area'ofthe law, both at the State and Federal Level. 'He has assisted
hundreds ofincarcerated persons with their cases and has numerous
writte.n appellate opinions.•

•

News Brief
As most of you have probably heard by now, On Tuesday. May 22nd , 8ea'etary James McDonou~h h~1d a press

conference announcing a change to the Department of Correction's mission statement The DOC s mission
statement. now Includes. reentry
.. and reads as such:
.

the

To p.:o~t the public safety, to ensU18
safety ofDepartment personnel, and to provide proper ca18
and supetvlslon of all offenders under ourJurlsdlctlon while assisting, as approprl'!"', their '""'!Y Into
~~~

, .•

Florida Prison Legal Perspectives

NEWSrRIEF
AK- On May, 25, 2007, indictments
were filed. against one current ~d
two former Alaska legislators. Rep.
Victor Kohring, a Republican from
Wasilla, was charged with extortion,
bribery, conspiracy, and attempted
extortion. Pete Kott of Eagle River
and Bruce Weyhrauch of Juneau,
both Republicans, pleaded not guilty
to four counts of extortion, bribery
and wire or mail fraud. The charges
stem from an allegation that all
accepted bribes, which included cash
and a job .offer in Barbados for one
man, in exchange for their support on
legislation favorable to an oil
services company.
CT- During the month of May, 2007,
Stanley Janiak, 55, an ex-prisoner,
was indicted by a federal grand jury
for possessing an arsenal in his
home. The arsenal . included:
Machine guns, grenades, bomb
making materials, and 10,000 rounc;ls
of ammunition. Police officials also
found two fake identification cards.
One for a state officer and the other
for an FBI agent.

FIr A trial has been set for Sept. 4,
2007, in the case of Louis S. Robles,
59, a once high-flying asbestos
litigation lawyer. The U.S. District
judge rejected a 10 years guilty plea
because he' was unhappy with the
amount of time Robles would serve. .
Robles has been accused of
defrauding nearly 4,400 clients out
·oU13.5 million.
FIr In mid~May, 2007, Carl E.
Graves, 45, an ex-deputy for Brevard
County Sheriff's office, was arrested
and charged with the sexual ~sault
ofa teenage girl. Graves was charged
by way of information with 24
counts of sexual battery. The
sheriff's office released a statement
which indicated that Graves was
heing held on a $840,000 bond in the

Brevard County Jail. The statement
also said that Graves would be
transferred to the Seminole County
Jail so he would not be in the custody
of his former colleagues.
FL- Herbert Wade Priester, 37, a
Gainesville police officer, turned
himself in to authorities on May 3,
2007. The patrol officer has been
charged by the State Attorney's
Office with aggravated child abuse
and criminal neglect. The charges
related to an assertion that Priester
abused his two month old daughter,
which suffered injuries on Jan. 29. A
report written by an official with the
FDLE states that the injuries
appeared to have been caused by a
dog, as well as some sort of crushing
injuries.
FL- On May 23, 2007,. Deputy
Sheriff Kevin Carter, 46, an Orange
County deputy, was arrested for
lying in a sworn deposition. The
charges stem from a 2005 drug case
where Carter gave (alse testimony.
Carter was charged with perjury and
.
suspended without pay.
FL- on May 21, 2007, County Judge'
Paul Damico rejected a challenge'
that placing restrictions on where sex
offenders
must
reside
was
unconstitutional. The judge .found
that he had no legal basis to rule that
is
the
county.
ordinance
unconstitutional. The. ordinance
provides that sex offenders must live
at least 2,500 feet from places where
children gather' in unincorporated
areas of Palm Beach County,
FL- An ex-lawmaker was sentenced
to 18 months probation on May 24,
2007. Former state Rep. Ralph Ana,
47, must also do ISO hours of
community service, complete an
anger management. program, and
seek alcohol abuse counseling. The

sentence was as a result of charges
filed against him for witness
tampering. Arza pleaded guilty to
two misdemean~rs and felony
charges were dropped. Under the
plea agreement, Arza will be able to
hold office again in 2010.
FL- Luis Diaz Martinez, 69, who
spent 26 years in Florida prisons
after being wrongfully convicted in a
series of rapes in South Florida
during the 1970s, filed a federal civil
rights lawsuit against Miami-Dade·
County and the police in March '01.
The lawsuit accuses them of
falsifying recordS and other illegal
activities in order to convict him.
Diaz was released from prison in
2005 after DNA evidence exonerated
him in two of the rapes and cast
doubt on his involvement in all five
cases that he had been convicted in.
IL- Jerry Miller, 48, who had spent
2~ years in prison for rape,
kidnapping, robbery, and aggravated
battery, was exonerated when a
Chicago judge. ruled that' DNA
evidence showed he didn't commit
the crimes. The New York-based
Innocence Project group stated it was
the 200th such Case. After Judge
Diane Cannon cleared him of all
charges, Miller. smiled and the
courtroom cheered.
IN- A riot erupted at New Castle
Correctional Facility in Indiana this
April. The facility is a private forprofit prison owned by the GBO
Group of Florida, formerly known as
Wackenhut. Arizona paid GEO $6.1
. million to house 1,260 of its state
prisoners. .Two hundred recent
arrivals didn't like the long bus ride
in chains, in the cold for which no
jackets were provided, and knowing
that their families in Arizona could
no longer easily visit them. The new
arrivals became "defiant" leaving the
.
11

Florida Prison Legal Perspectives
chow haJJ, hooked up with part of the
400 Arizona prisoners already there,
and the disturbance quickly spread.
Some smashed windows while others
took mattresses to' the rec field where
they were burned to generate
warmth. Guards used concussion
grenades 'and ··tear gas to regain
control. Seven prisoners and two
guards were hospitalized. One
mother with two child~, Maria
Laurelez, explained to reporters that
it cost her $600 just to visit her
husband without bringing her
children from Arizona to' Indiana.
Arizona prisol1ers are given no notice
of the transfers. They are awakened
. ,.and shipped: QUl to.. olber. states In. tbe
middle of the night. Arizona also
ships prisoners to private prisons in
,Oklahoma .and Texas. So far no one
has filed on the legal implications ,of
altering' the jurisdiction of the
detention orders, but that is why
California's highest court rejected a
plan to ship CA prisoners to private
prisons in other states. GEO-operated
private prisons have ,a death ratcof
one murder for every 400 prisoners.
The average' for other prisons
nationwide is one murder for slightly
less than every.22,OOO p~isoners.

.OR- During the second week of
May, 2007, a prisoner convicted of'
killing his cellmate was executed
after an hour delay. Christopher
Newton, 37, who weighed. 265
pounds was stuck at least 10 times
with needles in'an effort to place the
shunts used for the lethal chemicals.
Medical staff struggled to find
suitable veins because of his weight.
SC- Michael Sheedy, 59, the head of
security over the state prison system,
resigned during the last week of
May, 2007. His resignation came inthe middle of a state investigation
which is looking into allegations that
employees in his agency used work
computers to share pornography. The
state investigators have Itot released
any oftheir findings.
TN- A state trooper was suspended
on May 22, 2007, pending
investigation for taking sex for bribe.
The incident took place while the
trooper stopped a porn star and found
drugs in her car. The trooper let the
drug charges slide in exchange for
oral sex. The porn star stated that the
trooper's own video images of the
. roadside tryst support her allegations.

LA-In May, 2007, a former
VA- In May, 2007, Dwayne
CalcasieuParish Sheriff deputy was
Sheffield, a former police chief
sentenced to 30 years in prison for
resigned and former Sgt. Brian Doss
raping ~ys..whp came. to. ~~.house:, .. -. .w~ ~red .. This came after a Smyth
for sleepovers. The former deputy
County grand jury. indicted the two
was also a foster parent and a
on rape charges involving a 17-yearmember of Big Brothers-Big
old girl. The two former officials are
Sisters Program.
accused of assaulting the 17-year-old
.
girl during a Halloween haunted
NJ- A ~uperior Court, Judge Stuart
house fundraiser for sexual-assault
L.: Peim; vaCated charges of rape aM ' victims. murder after a DNA test showed a
neighbor' may have committed the
crimes that Byron Halsey, 46, was
charged with. Halsey, who had
served more than 20 years in prison,
was convicted in 1988 of murdering
and seXually assaulting the two
children of his girlfriend. While the
court vacated the verdict, the case
has been set' for a new trial.

LEARN TO
PROTECT
YOUR
RIGHTS,
YOU HAVE A RIGHT TO
•
•
•
•

Adequate medical care
Protection from assault
Humane living conditions
Safety from officer abuse

Learn how to defend your
basic human rights with
the comprehensive litigation guide, Protecting Your
Health and Safety, written
. specifically for inmates who
are unable to receive help
from a lawyer.
Written by Robert E. Toone('
A Project of the Southern
Poverty Law Center

COST $10
(includes shipping/handling)

ORDER A COPY
Send a check or money
order to
Protecting Your Heath
and Safety
Southem Poverty Law Center
P.O. Box 548
Montgomery, AL 36101-0548
Be sure to Include your name,
identification numbe." (if any). and
mailing address. If using a credit
card. please Include the type of
card (VISA or Masterr:ard), card
number, and expiration date. Upon
~uest. prison law ii"raries will be
sent 8 copy at no cost. WE DO NOT

ACCEPT ORDERS BYTELEPHoN£
This book does not deal with legal
defense against crimina' charges or cha~
lenges 10 tonV.Clions Ihal are on appeal.
Edllion last revised ,n 2002.

Florida Prison Legal Perspectives'

FPLP: It has been a while since I wrote to you. Because of the misrepresentations made by several of the politically
correct spin doctors who provide the yellow journalism to many ofour Florida newspapers. I must clarify what to.Pk place
at Marion in May. It was not a riot. It was caused when the colonel instituted strict controlled movement at this
medium/minimum security camp full of errors and without having worked .out the details.... and then dumps it on her
staff by going on vacation the day it is to start. By not having enough staff in place to allow us to enter the rec field, one
staff member attemptingto maintain the orders given him put his hands on an inmate and received a few hands and feet
put right back on him. The other officer took off out of there. No rioting. no out of control mob. We just went to rec. For
that 41 or so got shipped at 1 a.m. by a 24 or so man goon squad team. UnforhJJ)ately 39 of those inmates were not
involved. Some turned around and went back to their dorms. Some were at the multipurpose building. Some were at the
visiting park. But the real kicker is, all have received DR's written by the same female sergeant and she wasn't even
present. Also according to the grapevine, credit & thanks need to go to those gals at Lowell who stood up to the control
movement there. We are told you stood tall and won. BP AKA OM MCI
FPLP: For conditions ofconfinement in the in-patient mental health unit at Broward CI I am using 64E-26 FAC rules that
were obtained and printed in your AugUst 2006 issue with Osterback article. I would not be surprised if it is the first case
filed on 64E-26 rules since they were reinstated in August after 10 years of the illegal repeal of them in 1996. I am grateful to Mark Osterback for his hard persistence in court and for your publication of the article and the rules. I have been
threatened with DR's and shipping by upper management at this institution. There seems to be some support from central
FDOC though. I do not think they have really been aware ofthe extent ofunsanitary conditions at BCI. It is more than this
unit and the law clerks have helped me and the other inmates are hoping it will set some precedence and give the inmates
at BCI some chance for relief. CJ BCI
' .

Dear Mrs. Teresa Bums Posey: I have been subscribing since the birth of FPLP. Yet I have not seen much help for
prisoners like myself, 85% of the Florida prisoners are guideline sentenced. Pre-1983 lifers eligible for parole, as are
capitol life sentence up till 1995 eligible for parole. However prisoners with life sentences frOm 1983 to 1995 pursuant
sentencing guidelines and still in prison (2007). I would like to see FP~P lobby for us too. Majority of us lifers are in
prison for non-eapitol offenses. Yet we are imprisoned until death. If the Parole Board 'is abolished and capitol felony
, offenses under parole eligibility sentences reduced to a number of:years, sbould not the lesser felonies also have their life
sentences under the guidelines also be reduced to a number ofyears. I'd like to see more on this in FPLP. Thank you from
a long standing member. KB UCI
.
Dear FPLP: I want you to know of my experience at ZCI regarding Serious illness with Staphylococcus Aureus (MRSA).
Medical at ZCI are treating MRSA cases with sarcoptes scabiei treatment which involves packing your property and
storing it in the property room; removing you ftom your cell and job (so you have to go back to ICT) all for a 12 hour
treatment in confinement. Dr. Robinson at ZCI treated me as such I went back to Medical and got Dr. Triado when J had
sores all over my body. He did a skiD graft and put me on antibiotics fpr I week ofcipro, 2 weeks of septfla. There was no
follow up. At the time J knew little about staph infection. rve DOW educated myselfon it and know that because of the
extent of infection when I first was complaining that I should have been put on antibiotic IV. Two other inmates did
contract infection, one I had loaned a pair of shorts to, the other was my cell. mate. They were both treated by Dr.
, Robinson for scabies, and still harbor the infection. 14 weeks of antibiotic treatment I received at ZCI and I saw others at
ZCI with the MRSA and they were not being treated properly. This is a very important issue as one ofthose who caught it
from me went home infected and the other was to go home within 90 days. ZCI needs to be exposed as a danger to
public health. Transferring me out of the region is not any sane resolution. I am still fighting this infection here. medical
here seem far more interested ,in containing this highly contagious disease, and hopefully it will be eradicated now. The
public needs to know what an infectious breeding ground for MRSA ZCI is. They must not be allowed to hide their
problem there. FSP Eel
13

Florida Prison Legal Perspectives
Dear FPLP Staff. I received the Mar/Apr 2007 issue which as usual was excellent and critically infonnative. Thank you. I
especially like the new covers. There's an amazing phenomenon that occurs in this fifty four man wing of a butterfly
donn. When I receive my FPLP and PLN at least six to eight inmates (as distinguished from convicts/prisoners)
immediately RUSH me saying something to the effect of "Hey Dog can I check it out?". That immediately inspires me to
give them, and all others present my standard "Coward ass inmates" speech about how EVERY person IN THE FDOC
AND their families SHOULD subscribe to and support FPJ..P and PLN. I mean it i~ only $10 to know what is really going
on in the FDOC instead ofrelaying on the unreliable rumor mongers ofinmate.com. WGH MCI
I did have the pleasure ojmeetingyour parenJs at the Tally Rallies in pastyean. TBP

Dear F1LP: On March 12, 07, I along with 17 other or fellow inmates were placed in AC confinement pending
investigation for alleged gang involvement at Glades CI. The confinement was predicated upon a anonymous request form
sent to the instituti.on Warden. On March 14, 07, all 18 inmates' were interviewed by the gang sergeant al Gel and
concluded that no gang activity occurred nor do any of the 18 inmates listed in the request belong to a gang. The
investigative report recommended all said inmates be released back into population. However, all 18 inmates were held in
AC confinement for 30 days and transferred to aegion One as Internal or Institutional threats. Now this fonn of transfer
has become a practice of Gel in w~ich I feel is unjust. The 18 men that were confined & transferred had no compound
relations nor any fonn of affiliation other than living within the same donn. I was sent to OCI and during my initial
interview with classification I was advised of the reason for my transfer. The reasons were I was involved in the
following, tax fraud, money, drugs, cell phones, staff relations, etc. No mention ofgang activities as initially stated. All of
these allegations are complete fabrications to insure transfer status, regardless' of the negative impact it may have in
reference to the inmates good adjustment file. How can we defend ourselves from being victims ofanoriymous requeSt
and no due process? AP OCI

Dear FPLP: I would like to brhig to the readers attention, in the past 10 months, Lowell CI has expanded its population
growth to 2600 inmates. With this expansion, the mail intake has drastically increased. However, there are still only two
employee's working in ~emailroomtryingtoprocessmailtoinmates.Mail processing consists of opening each letter for
inspection. As a result of the increase of inmate's, without an increase of mailroom staff, the inmate's at Lowell are
having to wait between 2 to 4 weeks to receive their mail after it arrives at the institution. There are literally box's of mail
stated in the mailroom that cannot be distributed to the inmate's because there aren't' enough staff to process it. On the
weekend of March 3"' aDd 4111, the Warden sent a team of officers to go in and process mail that had bee~ stored in box's
for up to two monthS. This was due to an expected (annual) inspection from officials in Tallahassee due to arrive on
March Sib. The inmates received box's of mail at the donns over this weekend, mail dated back to December and January.
Now, since Tallahassee inspection ended, its back to only two employee's in the mail room, and inmate's, once again, are
not receiving their mail until up to 3 to 4 weeks after its past mark. Sev~ral inmates have filed grievances. However, the
grievances have mysteriously disappeared. Nobody has received an answer on their grievance, no action is taking place,
and we are depriyed of receiving our mail within the '48 HOURS' prescribed by chapter 33. Another violation swept
under the carpet by DOC. CD leI
.
Dear FPLP: I wanted to write you, staff and Glenn Smith to give you all prop's on the article written in your July/Aug
2006 issue on Institutional Transfers. I started my grievanceafrocedure on 11-02-06 and I am now in the Mandamus stage
of the process. I filed my Mandamus on 1~10-o7 with the 2 circuit and paid the $280.00 fee on 2-05-07 and received an
order of Show Cause on 2-13-07 from Judge Terry P. Lewis stating that he finds this to be a prima facie case for relief and
directing the defendant (McDonough) to respond within (60) days. So keep up the good work and thanks to that article I
will hopefully be moved back down to the central Florida area soon as to be able to visit with my family. Maybe this letter
will inspire others to follow suit. "Thanks again" Without'your dedication this would not have been pos~ible ..DJ GCI

Letters sent to FPLP may be used in this section. All letters are subject to editing for length and content. Only initials will be used to
identify senders and their location. Letters are welcome from all FPLP members. Address letters to: Editor, FPLP, P.O. Box ISH,
Christmu, FL 32709.

Florida Prison Legal Perspectives
I. Statute of Limitations
The .one-year time period in which state and
.federal prisoners must file in order to seek extended
colJateral review as created by the AEDPA introduced a
major
chaDge in ~ habeas corpus practice and
by Dana Meranda
procedure as practitioners once knew it. At the surface,
it's a proc:edwa1 matter that must be taken into account
he Antiterrorism and Effedive Death Penalty Act of
and
treated sCrlously. In enacting the AEDPA, Congress
1996. Pub.L. 104-132. 110 Stat. 1214. commonly
imposed
for the· first time in U.S. .history a fixed time limit
known as the "AEDPA," was sigQed into law by President
for collateral criminal cballenges in federal court on 8
Clinton on April 24, 1996.
.
judgment of conviction. Mayle v. FeliX, 125 S.Ct. 2562,
A substantial body of case law generated since the
2569 (200S). The only constraint upon the timing of filing
AmPA's enactment illustrates there bas been
the
petition was a flexible "prejudicial delay" rule. akin to
considerable .controversy and splits among the federal
the
equitable doctrine of laches. While exercising a
courts in their decisions with interpretations and
course
of unrelenting efforts to obtain federal.review, the
application of various provisions.ofthe AEDPA The Act
AEDPA
ooe-year time limitation bas·
many cases
has similarly spawned a variety of publications fiom legal
to
progressively
gravitate
into
a
stage
of
fidal
disruption.
scholars alike. See: Hertz and Liebman, Federal Habeas
Where a timeliness problem does in fact eXist,
Corpus Practice and Procedure (FHCPP), sec. 2.1 n.2 and
there
are
few exceptions available that qualify to the
sec. 5.2 n.1 (Slh ed. 2005).
.
extent
ofexcusing
any untimeliness.
In the decision of Lindh v. Murphy, 117 S.Ct.
Trtle
28
U.S.C.·
sec. 2244 (as amended) provides
2059, 2068 (1997) (one of the first cases in which the high .
~F~
of
Detennination,"
and subsection (d)(l) states,
court dealt with the AEDPA) concernina a question of
m pertineIIt part:
whether new sections of the statute governs pending
applications in non-eapital cases when the Act was passed.
A I-year period oflimitation shall apply to an application
Justice Souter described it as: "In 8 world of silk purses
for
a writ of habeas corpus by a person in custody .
and .pigs' ears, the Act is not a silk purse of the art of
pursuant
to the judgment ofa state court. The limitation
statutory drafting."
period
shall
nmfrom the latest ofTitle. I of the Act, eotitIcd "Habeas Corpus
(A)
the
date on which the judgment became final
Refunn," amended previously existing babeas corpus
by
the
conclusion
ofdirect review or the expiratton ofthe
.statutes. Those amendments are vital c:ompooeuts that
time
for
seeking
such
review;
affect both capital and non-capital cases brought by state

-Federal Habeas Corpu~
Title 28 U.S.C. Sec. 2254
An Introduction

causoo

and fQfcra] prisoncnl.

Significantly, the AEDPA' created .8 new time
limitation for filing federal habeas corpus petitions; it
converted the issuance of a Certificate of Probable Cause
to Certificate of Appealability to appeal the dcoia1' of
relief; and it placed onerous restrictions on successive
petitions, almost to a point of non-existence.
.
For state prisoners, arnendmems to Chapter 153
also established a new standard of review and included
changes regarding exhaustion of state remedies, the
presumption of correctness for state coon findings
(deference), and the availability of federal -.<"-tW",...
hearings.
.... ..-...-.3
Challenges to Various proviSions of the AEDPA
as violating the Suspension Clause, Due Process Clause,
and the Ex Post Facto Clause of the U.S. Constitution
have mostly been unsuccessful.
The remainder of this article will mainly discuss
the purview of the one-year sJatute of limitations OIl
seeking ~ habeas corpus relief as created by the
AEDPA. Future articles will touch on in successicln the
remaining topics noted above that are affected by the
AEDPA.
.

reviCwing the issue of statutory interpretation

involviDB a federal prisoner, the Eleventh Circuit Court of
Appeals (U.S.CA), in Koufmann v. U.S., 282 F.3d 1336,
1339 (ll dl Cir. 2002), analyzed sec. 2255(l) and sec.
2244(d)(I)(A).
The Court reasoned that Congress
intended the word "final" to have the same meaning in
~ ~ and held that: (1) if the prisoner files 8
timely petition for certiorari, the judgment becomes
"final" on the date the (U.S.) Supreme Court issues 8
~sion OIl the merits or denies c::erti.orari; or (2) tha
JUdgment becomes "final" on the date on which
defmdaDt's time for filing such a petition expires. See
also: 'Bpnd v. Moore, 309 F.3d 770, 774 (lllh Cir. 2002).
coatmst, in Coates v. Byrd, 211 F.3d 1225
1227 (11 Cir. 2000), the Il lh Circuit agreed with ~
Tenth and Fifth Circuits that the 9o-day rationale does not
extend· to the tolling proYision of sec. 2244(d)(2)
fOllowing the denial ofstatepost-conviction proeoodings.
In other words, the 9<Hiay time period to file
certiorari to the U.S. Supreme Court (S.Ct. Rule 13for Petitioning), translated from sec. 2244(d)(I)(A),
applies ~ after the conclusion of a direct appeal not
. after coaclusion ofpost-conviction proeeOOings.

!!l

Tmx:

Florida Prison Legal Perspectives,
Filing notice with the Florida Supreme Court
seeking reView of a state appellate court's denial of a
motion for post conviction relief does not· toll the I-year
limitations period for seeking federal habeas corpus
review where the appellate court's order was a Per Curium
Affirmed (PCA). Bismark v. Secy. Dep't. ofCO"., 171
Fed. Appx. 278 (lilb Cir. 2006) (unpublished).
If no direct appeal is sought. the triggering date is
the expiration of the time for filing such appeal Ob:de
9.110(b), FJa.R.App.P.). See generapy: mcpp, sec.
5.2(b) n. 37 (Sib ed. 2005); and KaprOl v. u.s., 166 F.3d
565, 577 (3d Cir. ·1999), which has been joined by a
majority of the circuits. Also, recently the. 111II Circuit
held that the time during which a habeas petitioner ,could
have sought appeal of denial by a Florida court of his
motion to correct sentence ~ 3.800(a), Fla.R.Crim.P.,
motion) tolled the one-year limitations period for seeking
federal habeas relief under the AEDPA, even though the'
petitioner did not seek appellate review of the denial.
Cramer v. Secy. Dep't. ofCO"., 461 F.3d 1380,.1383 (11 111
Cir. Aug. 28, 2006).
In addition, even though the statute of limitations
is an affirmative defense for Respo~ the District
Court has discretion to' raise, sua sponte, the timeliness of
a habeas petition. Jackson v. Dep't: of Co"., 292 F.3d
1347, 1349 (lilb Cir. 2002). Day v. McDonough, 126
S.Ct. 1675 (Apr. 25, 2006).
It is also noted that courts commonly apply the
"prison mailbox rule" in determining whether a habeas
petition was timely filed per the AEDPA. Cramer, supra,
at 1382; and Washington v. u.s., 243 F.3d 1299, 1301
(illb Cir. 2001) (per curium).
Calculations of filing date(s) concerning AEDPA
Statute of Limitations are resolved under the principles
expressed in Rule 6(a). Fed.R.Civ.P.
(B) the date on which the impediment to file
application created by State action in violation of the
Constitution or laws ofthe United States is removed, ifthe
applicanl was preventedfrom filing by such Stole action;
I

For example, where a prosecutor fiWed to disclose
potentially exculpatory information (evidence) under
Brady v. Maryland, qualified for sec. 2244(dXl)(B)
. ~tegory of impediment since petitioner could not have
discovered evidence earlier because .of govemmeut
alleged misconduct. Lewis v. U.S., 985 F.Supp. 654, 6S7
(S. D.W.Va. 1997).
The plain language of the statute makes clear that
whatever constitutes an impediment must have prevented
a petitioner from timely filing. Lawrence v. Florida, 421
F.3d 1221, 1226 (11 th Cir. 2005), (Cert. granted Mar. 27,
, 2006) 126 S.Ct. 1625 (whether time limitations ~ tolled
during ~cy of petition for writ of certiorari fiom
judgment denying post conviction relief), decided 20
F1a.L.Weekly Fed. S85 (Feb. 20, 2007); -l1oyd v. Van
16

Halla, 296 F.3d 630. 633 (7'" Cir. 2002).
mcpp, sec. 5.26 n. 43 (Sib ed. 2005).

See also:

RaIney v. Sec. F.D.O.C., 19

Fla.L.Weekly Fed. C399 (11 th Cir. 3/29/06).

IV. Coadusion
The provisions of sec. 2244(d) are somewhat
int.eatwined, exmedingly narrow. and perhaps only
situationally applicable. Therefore, it is imperative to
have patience and develop systematic research routines.
The mpics discussed herein are not. by any means,
exhaustive OIl conditional mtrlJanisrns that the courts may
use to resolve AEDPA time limitations issues. This article

Florida Prison Legal Perspectives
is merely intended to point out potential areas of interests,
where concentrated case research may prove .to be
beneficial and to provide a general overview of the critical
iSsue of meeting the time limitations of the AEDPA in
seeking federal habeas corpus relief.

Advertise in FPLP
Reach new clients or customers' through advertising in
Florida Prison Legal Perspectives. To obtain advertising and
rate information write or email
us at:

[Note:
In refi:rence to the discussion of sec.
2244(d)(I)(D) above, for a step-by-step guide to the
Freedom of Infonnation Act go to www.aclu.om, ACLU
Freedom Network, F.O.I.A. Requests, or write to request a
copy from: ACLU, 125 Broad Street, ISIh Floor, N.Y.,
N.Y. 10004. For the Florida 'equivalent to the federal
F.O.I,A. see Chapter 119, Florida Statutes, Public Records
Act.] •

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Florida Prison Legal Perspectives

Thefollowing are .~ummaries ofrecent state andfederal cases tltat may he usejulto or have a significant impact on Florida prisoners.
Readers should always read the full opinion as publishea in the Florida Law Weekly (Fla, L. Weekly): Florida Law Weekly Federal
(Fla. L. Weekly Federal); Southern Reporter 2d (So. 2d);, Supreme Court R'eporter (S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Supplement 2d (F.Supp. 2d). since these summaries are for general informalion only.
.

UNITED STATES COURT OF
APPEALS
Mathews v. Crosby. 20 Fla.L.Weeklv
Fed. C412 (II'" cit: 3/16/07)
•
Willie Mathews apPealed the
grant of a sununary judgment in
favor of James V. Crosby, fonner
warden at FSP, and Tim Giebeig,
fonner inspector at FSP, on grounds
that they were inunune from suit on
,the basis of qualified im{nunity. At
the same time, Mathews also

appealed the district

~urt's

order

granting costs and the amount of

those costs to Crosby, Giebeig, 'and
other FSP employees who were
voluntarily .ssed before trial.
The background' of this case
is Mathews sued Crosby and Giebeig
for violations of his Eighth and
Fourteenth . Amendment
rights,.
alJeging prison guards' bad repeatedly
beat him and that Crosby knew about
the general propensity for violence
against inmates, but was deliberately
indifferent to risk of abuse and
serious medical needs of Mathews.
Crosby and GiCbeig moved for
sumnuuy judgment, and the district
court granted it, finding they could
not be held liable for their acts as
supervisory officials.
The Eleventh Circuit opined

that the district court erred in
granting summary judgment in favor
of Crosby on grounds of qualified
immUnity where Mathews bad
established that Crosby could be held
liable
as
a
supervisor for
constitutional violations of guards at
1he prison on basis of supervisory
liability under 42 U.S.C. section
1983. It was clearly established at
, the tUne of the beatings that the
warden, a person charged with

where the magistrate judge's report
directing the governance, discipline,
and recommendation went through
and policy .of the prison and
enforcing its orders, rules, and
an extensive analysis of each
regulations, would bear liability
individual cost and a sound basis for
overooming a strong presumption
under section 1983 predicated on a
failure to take reasonable steps in the
that a prevailing party. is entitled to
face of a history of widespread abuse
costs was not presented.
or adoption of custom or policies
Accordingly, the district
which
resulted
in. deliberate
court's order granting sununary
judgment in favor of Crosby was
indifference. Sufficient facts were
presented for a jury to fitid that the
reversed, and in favor of Giebeig was
guards at the prison committed a
affinned. The district court's ·order
awarding costs was reversed to
constitutional violation and to
support supervisory liability under
Crosby and Giebeig and was
section 1983 against the fonner
affirmed to all other parties.
warden through a ~sal connection
between his actions and the alleged
constitutional
deprivations . UNITED STATES DISTRICT
committed by Crosby's subordinates.
COURTS
, It was further opined that the
.evidence shown, wba) taken
Nichols
v.
McDonough,
20
together. was more than adequate to
FIaL.WeeklY Fed. 0525 (N. D. Fla.
entitle Mathews to procef.d to trial
2116107)
and show·that inmate abuse at the
Jeny Lee Nichols presented
bands of guards was not an isolated
an issue pursuant to a petition for
occurrence. but rather occum:d with
writ of habeas corpus regarding a
sufficient
regularity
as
to
newly discovered "documents"· claim
demonstrate a history of widespread
thai the respondents claimed was
abuSe at the state prison and that
untimely.
Crosby kneW of it. Crosby was on
In
pertinent
part,
the
'notice of such. in that there was a
Northern .District Court found that
need to correct or stop the abuse by
Nichols was untimely under 28
officers. That same evidence, taken
U.S.C. section 2244(d)(I)(A), after it
together and· viewed in light. most . noted NichOl's tolling times from
favorable to Mathews, was sufficient
conviction (March 7, 2003), direct .
to allow a jwy to consider whether
appeal opinion (February 5, 2004),
Crosby bad established customs and
filing
postconviction
motion
policies that resulted in deliberate
(October
12, 2004), appellate
indiffi:rence
to
constitutional
affirmation (February II, 2005),
.violations and whether Crosby f3i1ed
filing a
second postconviction
to take reasonable measures to
motion (lune 9, 2005), appellate
correct the alleged deprivations.
affirmation (December 12, 2005),
In relation to the costs, it was
then the Federal Habeas Corpus
deemed that the award of prewiling
Petition (March 6, 2006). However,
party costs to all parties except
section 2244(d)(I)(D) provides that
Crosby and Giebeig was appropriate
19

Florida Prison Legal Perspectives
. the one-year statute of limitations
may lUll, not from the date of finality
as the District Court analyzed above.
but from "the date on which the
factua1 predicate of the claim or
claims presen~ could have been
discovered through the exercise of
due diligence."
According to
Nichols, he ''was. not aware" that his
attorney's work file contained
documents relevant to assisting new
grounds for postconviction relief and
he "had no way of knowing about the
facts and/or the documents" until
May 8, 2005.
In Aron v. United States, 291
F.3d 708, 711 (l1 11l Cir. 2002), the
Eleventh Circuit addressed the
analogous one-year limitation in the
context of a motion to vacate, and the
District Court in Nichols' case
opined that it would be appropriate
for it to look to
for. guidance.
The one-year limitation period under
section 2255(4), is virtually identical
to Nichols' habeas period that was at
issue, which "begins to run when the
facts could have been discovered
through the exercise of due diligene<e,
not when they were actually
discovered." See: Aron, 291 F.3d at
711. Thus, the "beginning of the
one-year period is triggered by a date
not necessarily related to a
petitioner's actual efforts or actual
discovery of the relevant facts." Id.
The pertinent timeliness inquiry
begins with "determining whether
the petitioner exercised due diligence
because... if he did so, the limitation
period would not begin to run before
the date he actually discovered the
facts supporting the claim." Id. "It is·
only if the petitioner did not exercise
due diligence that [the court is]
required to speculate about the date
on which the facts could have been
discovered with the exercise of due
diligence." Id. at 711 n. 1.
After an analysis of Nichols'
due diligence, the District Court
determined that he fiUled to exercise
due diligence to discover the found
documents.
As such, it was
determined that the Court had to
speculate about the date of when the

Aron

documents
could
have
been
discovered with the exercise of due
diligence. Subsequently, after its
analysis of finding the date
speQdated to be the time Nichols
could
have
discovered
the
documents, it found that Nichols
petition for writ of habeas corpus to
be
timely
under
section
2244(d)(l)(D), and. respondent's
motion to dismiss should be denied.
Accordingly, in light of.the
District Court's findings, it was
recommended that respondent's
motion to dismiss be denied, and
Nichols' cause be remanded to the
Magistrate Judge for
further
proceedillWi·
[Note: Nichols' had been found to
have used up 310 days of his oneyear time limit.]

SUPREME
FWRIDA

COURT

Galindez v. State. 32
S89 (Fla. 2/5/07)
Alexander

Fla~L.Weekly

Galindez
pn:sented the Florida Supreme Court
with a conOict from the decision of
the Third District Court of Appeal in
Galindez v. State, 910 So.2d 284,
285 (Fla. 3d DCA 2(05). with the
First District in Isaac v. Stote, 911
So.2d 813 (Fla. III DCA 2005).
In Isaac. the First District
opined that Apprendi v. New Jersey,
530 U.S. 466 (2000), aDd Blakely v.
Washington, 542 U.S. 296 (2004),
decided. after the defendant's
conviction was final, apply to a
subsequent resentencing.
Tbe Florida Supreme Court
in GaIindez's review detennined that
the bannless error affect applied and
as a result, did not give any opinion
in regard to the First District's
decision in Isaac.
However, it
should be noted that the concurring
judse, Camero, J., saw a IeasthY
written opinion in Ga1indez's case
regarding the Isaac decision. .

[Note:
The concurring judge's
opinion is a must read because it
gives a peek at what the Florida
Supreme Court "may" decide once a
case bas reached it to decide on the
merits involved regarding the Isaac
case issue.]
.
In Re:· Standard Jury Instructions In
Criminal Cases, 32 Fla.L.Weekly
S1I3 (Fla. 3129/07)
The
Supreme
Court
Committee
on .Standard Jury
Instructions in Criminal Cases
(Committee) filed a report on May 6,

2005, that proposed amendments to .
Standard Jury Instructions· in
Criminal Cases: 8.6 - Stalking;
8.7(a) - Aggravated Stalking: 8.7(b)
- Aggravated Stalking - Injunction
Entered; 8.8 - Aggravated Stalking Victim under 16 Years of Age; 10.15
- Felons Possessing Weapons; 13.2Possession of Burglary Tools; and
14.1 - Theft. The Committee also
proposed new instructions: 11.14Dangerous Sexual Felony Offender,
and 13.21 - Impairing or Impending
Telephone or Power to a Dwelling to
Facilitate or Further a Burglary.
.
After the Supreme Court
published
the
proposals
for
COIlUllents, amendnients were made
to a few of the proposals and
instrvction 14.1 was withdrawn.
Further, proposal instruction 11.14
was declined by the Supreme Court
in authorizing its publication and use,
and referred it back to the Committee
to address the concerns it had
regarding the contents of that
proposal.
Otherwise, after the Supreme
Court considered all the other
proposals and their amendments,
authqrization for publication and use

was granted.
[Note: The amendments and the new
instruction can be viewed in Volume
20, Number 13, March 20, 2007,
Florida Law Weekly under the
Appendix section at S113 through
SI15.)

Florida Prison Legal Perspectives
to Flo. R.Crim.P. 3.170 and 3.172,
938 So.2d 978 (F1a. 2006)
(hereinafter Amendments 11). The
(Fla. 3/29/07)
emergency amendments to those
The Florida Supreme Court,
rules weJe publisbed fur comment on
October IS, 2006.
sua sponte, amended Florida Rules
of Criminal Procedure 3.170 and
.Subsequent to the publishing
3.172 on an emergency basis to
for CClmIIleDt, the Conunittee pointed
out that the emergency amendments
ensure consistency between the roles
to those rules were not necessary in
and section 925.12, Fl9rida Statutes
(2006). See: Amendments to Flo.
light of the Committee's proposed
Rules o/Crlm.Pro. 3.170 and 3.172,
amendments.
938 So.2d 978 (Fla. 2006).
After a brief analysis of
The deadline date under the . scmie concerns in the amendments
roles governing DNA testing,. Florida
and a few corrections completed in
Rule of Criminal Procedure 3.853,
both
Amendments
I
and
bas been extended a· few times, and
Amendments n, the Florida Supreme
Court adopted the . Conunittee's
then prior to the last published
deadline date, October 1. 2005. the
amendments.
The amendments
Criminal
Procedure
Rules
became effective immediately.
Committee (CommiUee) filed an
emergency report that recommended
[Note:
The above mentioned
eliminating the deadline altogether.
amendments can be viewed in
In order to give the Supreme Court
Volume 20. Number 13. of the
. time to consider the report and to
March 30, 2007 Florida Law Weekly
seek and consider comments, on
under the Appendix section at S117
through S118.]
September 29. 2005, an order was
issued amending rule 3.8S3(d) on an
interim basis, which extended the
deadline date to July 1,2006. While
DISTRICf
COURTS·
OF
the Legislature considered the
APPEAL
matter, the Supreme COurt had held
the committee's report in abeyance
Turner
v.
McDonough,
32
pending legislative action.
Fla.L.Weekly D4S0 (Fla. III DCA
Subsequently.
the
2/14/07)
Legislature enacted chapter 925,
DeDnis TUI'Il« sousbt review
Florida Statutes (2006).
The
of a circuit court's order that denied,
Supreme Court then responded by
in pertinent part, his motion to vacate
amending the corresponding rules.
the lien placed on his inmate trust
First, the Amendment removed the
account from a mandanws petition
deadline for filing postoonviction
classified as a coUateral criminal
DNA motions. and the Supreme
proceeding.
Court responded by adopting the
The cin:uit court bad refused
Committee's proposed amendment to
to vacate the lien against Tumer's
rule 3.8S3(d). See: Amendments to
prison account on two pmds: It
FIa.R.Crlm.P. 3.853(d). 938 So.2d
found the issue was moot because the
977
(Fla.
2006)
(hereinafter
lien had been paid' in full; and that
Amendments I).
second, the
Turner's reliance on Schmidt v.
amendment provided that courts
Crusoe, 878 So.2d 361 (Fia. 2003),
should inquire into the existence of
was
misplaced
because
the
DNA evidence before accqrting a
mandamus petitioo involved' gainplea of guilty or nolo contendere to a • time lost, not as a' resuh of a
felony, and the Supreme Court
disciplinaly proceeding, but as a
In Re: Amendments To Florida
Rules Of Criminal Procedure 3.170
. And 3.172, 32 Fla.L.Weeldy S116

responded

by sua sponte

adopting

emergency amendments to rules
3.170 and 3.172. See: Amendments

RSU1t of a revocation of Turner's

probation.

On review. the appellate
court pointed out that Schmidt does
not distinguish between gain-time
lost as a n:sult of a disciplinary
proceeding and gain-time forfeited
for other reasons. The Schmidt court
made it clear what makes a
proceeding a collateral cbaIIenge: '1t
is clear that the Supreme Court has
refused to be bound by the variations
in terminology used in the various
challenges to the computation of an
inmate's sentence. Instead, it has
looked to the effect the cbaIIenged
action had on the amount of tinie an
inmate has to actually spend in
prison... [T]bus, we conclude that a
gain-f;ime challenge is analogous to a
col1atenil challenge to a sentence in a
criminal procooding because the end
result Is the same-the inmate's lime
in prison is directly affected" Id. at
367 (emphasis supplied).
Consequently, the appellate
court in Turner's case opined that ifa
lien bas been emmeously placed on
an imnate's account, the inmate is
entitled to removal of the lien and
reimbursement of the funds that were
withdrawn from the account to
satisfy the lien. See: Marquez v.
McDonough, 32 Fla.L.WeeIdy D192
(F1a. I" DCA 1/5107). It was further
opined in Turner that until and
unless the funds are reimbursed, the
matter is not moot.
Accordingly,.
Turner's
certiorari petition was granted
"insofur as it [sought] relief from the
autbori.zed lien." Thus. the lien order
was vacated and Turner's case was
remanded for entry of an order
directing the reimbursement of the
. funds withdrawn from Tumer's
prison account pursuant to the lien.
Rollins v. State, 32· Fla.L.Weekly
DS64 (FIa. 2d DCA 2/23/07)

Tarome Rollins appealed a
lower. court's order that denied his
motion to suppress stemming from
offenses that had violated his
p~on.

In the appeal. Rollins
challenged two separate circuit court
cases. In one case, be bad pled guilty 21

Florida Prison Legal Perspectives

Califomia, 126 S.Ct. 2193, 2202
to possession of cocaine within 1000
Bean v. State, 32 FIa.L.Weekly D662
(2006), where it opined Samson did
feet of a church with intent to sell
1b
(FIa. 4 DCA 3nl07)
not apply because that case dealt
and the other case where Rollins was
lee Bean appealed the denial
with a California law that .aIlows
found in violation of his probation by
of
his
rule
3.800(a) motion, where he
officers to search a probationer or
committing the above offense and by
bad claimed that his fifty-year
knowingly being in a place where
parolee at any time without cause,
sentence as habitual offender for
drugs are unlawfully sold, dispensed,
and Florida bas no such law.
burglary of dwelling with assault or
Acconfingly,
Rollins'
or used. Rollins had filed a motion
battery while anned was illegal
to suppress in both cases, where he
judgrrient and sentence, as well as ~
because the offense was a life felony
order revoking his probation was
argued that the police did not have
and not subject to babitualization
reversed and the cause was remanded
probably cause to' arrest him for
under the applicable law at the time .
violating
his
probation,
and
for further p~.
therefore, the cocaine found during
ofoffense.
Cole v. State. 32 Fla.L.Week1y D577
Bean's offense occurred in
the search incident to that arrest
(Fia. I A DCA 'JJ28/07)
1991 and, as the appellate court
should be ~ppressed.
The background of this case
William Chester Cole, a
noted, the offense Qean was
convicted of under ~OD 810.02(2),
Florida prisoner, sought review of an
beganwben police officers had
Florida
Statues (1991), is a first
·order that dismissed his mandamus
confronted Rollins in an area known
degree telony. As such, pursuaut to
as a high drug area.
Rollins
petition
that
challenged
the
of
Corrections'
section 775.087(1)(a) (use. of a
volunteered his identification card to · Department
weapon), the trial court was obliged
one of the· officers.
While his
calculation of gain-time credits
applied to his seutences.
to enhance the offense to a life
identification was being checked on
The 'loWer court that
felony and at the time of the offense,
a computer, another officer asked
dismissed Cole's petition relied on
life telonies were not subject to
Rollins if he could search him, and
habitualization.· See: Thomas v.
Kalway v. Singletary, 708 So.2d 267
Rollins declined. Subsequently, the
State, 831 So.2d 762 (Fla. 4lb DCA
(FIa. 1998), which bad held that a
computer check revealed that Rollins
2002).
was on probatiOn, thereafter Rollins
petition for extraordinary relief must
be filed within 30 days from the time
On appeal, the state bad
was arrested for violating his
agreed that Bean's claim was
probation by being in an area where
that administrative remedies are
exhausted, opining Cole's petition
drugs
were· unlawfully sold,
cognizable, but contended that Bean
was not entitled to relief because he
dispensed,' or used. A search of
was time barred. It was noted that
failed to -attach the requued
Rollins' person incident to the arrest
Cole bad previously filed a petition
revealed cocaine found in his front
sentencing records to his motion.
for the same relief in the Leon
pants' pocket.
County Circuit Court, which resulted
This argument was. rejected and the
The appellate court first
in a dismissal for lack of jurisdiction
appellate court explained that in
denying a legally sufficient 3.800(a)
pointed to the requirements of
on the ground that the relief soughi
Rollins' probation, where it read that
motion, the trial court ~ failure to
constituted a .coIlateraI challenge to
he "shau not knowingly visit places.
his sentence, and as a consequence,
attach records refuting the claim is
where intoxicants, drugs, or other
reversible error, and the state cannot
the Leon Court concluded that the
sentencing court, which wasn't the
cure the error by providing the
dangerous substances are unlawfully
sold, dispensed, or used." It waS
records to the appellate court.
Leon Court, should entertain the
noted that at Rollins' suppression
petition.
Then the state suggested to
In the appe1Iate court, it was
bearing, there was no evidence that
the appellate court that the doctrine
Rollins knew the area was 'a place
noted that the dismissal was
of laches should apply, where they
·inCorrect. However, because Cole pointed out that Bean filed his
where drugs are unlawfully sold,
motion approximately
di~ or used. Therefore, it was .
did not appeal the prior ~ the . 3.800(a)
opined that tile officers did not have
lower court dismissed the challenge
fourteen years after he was
as untimely.
probable cause to arrest Rollins for
sentenced.
Further arguing that
violating such condition of his
It was opined though that
laches is sustainable in a criminal
probation, and further, the evidence
notwithstanding the dismissal of
case where there has been both a lack
found during the search incident to
Cole's action, Cole retained the
of due diligence on the defendant's
that arrest should have been
option to seek relief from judgment • part in bringing forth the claim and
suppressed..
via Florida Rule of Civil Procedure . prejudice to the state, citing Wright \I.
. The appellate court also
State, 711 So.2d 66 (Fla. 3d· DCA
1.S4O(b) in the Leon County Circuit
mentioned
the
United States
Court at any time on the ground that
1998). The appellate court opined
Supreme Court case in Samson v.
the judgment entered was void.
that there was no apparent prejudice

Florida Prison Legal Perspectives·
to the state in Bean's case and
turthennore, a claim of an illegal
sentence is one that can be raised at

anytime.
Bean's case was reversed
and remanded in regard to subject
matter mentioned.
Roberts
v.
Florida
Parole
Commission, 32 Fla.L.Weeldy 0681
(Fla. Iii DCA 3/12107)
Marilyn Roberts sought
certiorari review of an order from a
circuit court that denied her
mandamus petition as being untimely
pursuant to the 30-day time limit,
imposed . by Florida Rule of
Appellate Procedure 9.100(c)(4), to

file a petition challenging agency
action.
In Johnson v. Florida Parole
Commission, 841 So.2d 61S, 617
(Fla. 1st DCA 2003), it was held "that
unlike the 30-day limit imposed by
Florida Rule of Appellate Procedure
9.l00(c)(4), to file a petip.on
challenging an order of the
Department of Corrections entered in
prisoner disciplinaIy p1'O('1"edings, the
Florida Supreme Court has not by
rule adopted a similar time limit to
cbaIIenge orders of Florida Parole
Commission in parol~ rCvocation or
presumptive parole release date
proceedinp." See also: Spoziano v.

FlQ.

Parole

Comm 'n,

Fla.L.Weeldy DIS97 (FIa. 1st DCA
6/9/(6) (citing Johnson, ld at 617,
for such proposition). The question
of timeliness must be raised by the
affirmative defense of 1ad1es. As
such, the circuit court in Roberts'
case, without issuing a order to show
cause, was found to have dq»arted
from the essential requirements of
in denyjng Roberts' petition as
untimely under role 9.100(c)(4).

raw

Accordingly,

Roberts'

certiorari petition was granted, and
the cireuit court's order was quashed,
and the case was remanded for
further pmcmdings.
Ma.rtin
v.
.Florida
Parole
Commission, 32 Fla.L.Weeldy 0686
(FIa. I"' DCA 3113/07)

Henry L.. Martin appealed an
order from a circuit court that treated
his habeas corpus petition as seeking
non-babeas relief and denied the .
petition as untimely pursuant to
Florida Rule of Appellate Procedure
9.IOO(c)(2).
.
Martin's claj,m in his habeas
petition was a c:balIenge to the
revocation of his conditional release
. supervision and the c:ousequent
incarceration that issued, where
custody of the Department of
Corrections was still current. The
circuit court denied' reli~ finding
that Martin's claim was more
properly viewed as seekiiJg certiorari
review of the parole conunission's
revocation order. but was tiJne..
barred pursuant to the 30-day
Iimi1ation established by role
9.100(c)(2). .
In rule 9.100(c)(2). by its
plain. terms, the rule relates to the
review of actions. "of agencies,
boards, and conunissions of local
government." and was fouDd by the
appellate court to be iDapplicable10 a
claim cbaJlmging an action of the
state agency. . Thus, Martin's\
challenge was properly present.ed and
the trial court was· found to be in
error in converting the petition.
The parole COIIIDIission,
however, suggested that the 10wer
court nooetheIess bad readied the
correct resUlt in Iigbt of ~on
9S.11(5)(t). Florida Statues (2006).
where a petitim must be brought
within one year. and contended that
.regardless of wbetber Martin's
.petition was properly filed as a
habeas corpus action or a certiorari
action, it was tiJne.baned. The
Commission Cited to Cooper v. RD.
Parole Comm 'n. 924 So.2d 966 (FIa.
4th DCA 2006). review pending in
the Florida Supreme Court, No.
SC06-1236 (FIa. 6flll06).
The appellate court found
reasoning ftawed for two
reasons. Farst, 1he legitimacy of
applying section 9S.11(S)(t) in 1he
type of situation as Martin·s case is
questionable in 1igbt of Allen v.
Butterworth. 7S6 So.2d 52 (FIa.

. such

2000), where it was held that the
legis1atute was without authority to
establish deadlines for asserting
claims
traditionally
remediable
through habeas corpus. More to the
point, the fundamental characleristic
of a habeas claim is an assertion of
continued unlawful detention, and
the "purpose of a habeas corpus
pl'QCWWling is to inquire into the
legality of the petitioner's present
detention." See: Sneed v. Mayo, 69
So.2d 6S3 (Fla. 19S4). Because
Martin alleged that he continued to
be unlawfully detained. his claim
was necessarily filed within the oneyear time limitation established by
thestattle.

Accordingly, the trial court's
order was reversed and the matter
was
remanded
for
further
pl1)CA'fflings. Further. the appellate
court opined that to the extent
Cooper held that rule 9.l00(c)(2) and
section 9S.lI(S)(t) may· operate to
bar habeas. corpus pf()C',f'!!l'1jinS'l that
cbaIlenges a prisoner's continued
confinement due to revocation of
post-release supervision by the
parole commission, it certified
conflict with that decision.
v.
McDonough,
32
Fla.L.Weeldy 0690 (Fla.' I"' DCA
3/13/07)
.
Richard H. Gibson presented
the appellate court with a certiorari
petition that challenged a circuit
court's order of denial of his
mandamus petition and claim that a
lien was improperly imposed on his
prison account.
The appellate court in
Gibson's case denied, without
discussion, review of the mandamus
denial, but granted review as to the
lien placed on his prison account. In
doing so. it noted section S7.08S,
Florida Statutes, enables a trial court
to place a lien· on an inmate's trust
accouut for civil filing fies.
However. the Statute does not apply
to "collatera1 criminal procefflilJS'i."
In Schmidt v. Crusoe, 878 So.2d 361,
366 (FIa. 2003). the Florida Supreme
Court defined a "collatem1 criminal
Gibson

Florida Prison Legal Perspectives
proceeding" as incJucfi,ng any action
that results in an inmate's prison time
being "directlyatte«ccl"
In Gibson's case the
appellate court pointed out that
despite the overwhelming lack of
merit that was in·:the mandamus
petition argument, . If Gibson had
been successful in his challenge of
the Department of ~orrection's
decision of a disciplinary action, he
would have been eligible. to receive
the gain-time lost due to the
inftaction. Thus, the appellate court
was compelled to conclude that
Gibson's mandamus petition was a
"collateral criminal proceeding"
pursuant to Schmidt. See: Yasir v.
McDonough,
31
FIa.L.WeekJy
01459 (FIa. III DCA Sns/06) (citing
Cox v. CrosbY,31 Fla.L.WeekJy
0310 (Fla. III DCA 1/26/06».
Accordingly,
Gibson's
petition was granted in part as to the
subject of the lien. where the order
imposing it was quashed, and it was
ordered thataIJ funds collected from
the prison account to be refunded.
However, the appellate court went
further and opined that because 9f
what it perceived to be logical
implications of Schmidt as illustrated
by cases such as Gibson's, it certified
the following question to the Florida
Supreme Court, as it bad in Cox and
Yastr, which was opined to be
believed one of ~ public
importance: "Does the holding in
Schmidt v. Crusoe, 878 So.2d 361
(Fla. 2003), extend to all actions,
regardless of their ~ in which, if
successful, the complaining party's
claim would dira:tly affect his or her
time in prison, so to preclude
imposition of a lien on the inmate's
trust account to recoVer applicable
filing fees?"
Jackson v. State, 32 Fla.L.WeekJy
0792 (Fla. 2d DCA 3123/07)

Jessie Jackson Jr. ~
an order that revoked· his probation
where he claimed, in pertinent part,
that he was entitled to relief ~ on
ineffective assistance of trial Counsel
apparent on the fiweofthe record.
24

Jackson's probation officer
had filed an affidavit of violation
alleging that Jackson violated .the
requirement that he have.no contact
with the victim in his case directly C?r
indirectly, including through a third
person, unless approved by the.
sentencing court.
The victim's
testimony contradicted the affidavit
allegations. The record that was
before the lower court showed the
only "contact" between Jackson and
the victim occurred when the victim
called Jackson to request that
Jackson provide financial assistance
for the victim's child, which' was
fathered by Jackson.. The revocation
of Jackson's
probation
was
predicated on Jackson's admission of
the telephone contact.
It was opined that aI~gb
the telephone contact that was
initiated by the victim may have
constituted a technical violation, it
was not a· willjUl. and substontial
violation.
Furthermore, the
telephone contact' was not alJeged as
the viOIatiOD in the affidavit. Thus; it
could not be a basis for revocation.
See: Soto v. Stare, 727 So.2d 1044.
1046 (Fla. 2d DCA 1999); Butler v.
State, 450 So.2d 1283, 1285 (FIa. 2d
DCA 1984).
.
Therefore, it was found on
appeal that Jackson's counsel
permitted Jackson to enter an
admission to a violation that was
uDcharged and which, even if
cb8Iged, would' be an insufficient
basis for revocation. Further, When
Jackson's probation was revoked, his
coUnsel
neither
offered
a
contemporaneous
objection nor
otherwise sougbt to preserve an
objection. As such, it was agreed
that counsel's ineffectiveness was
apparent on the fiwe of the record.
Also, it was decided that it would be
a waste of judicial resources to
require the lower court to address the
issue. See: BIonco v. Wainwright,
507 So.2d 1317, 1384 (Fla. 1987).
It Was further opined that
there was no plausible strategic
. reason for the course of action that
. was chosen by Jackson's counsel.

deficiency
of counsel's
perfonnance and the resulting
prejudice to Jackson were manifest.
See: Lambert v. State, 811 So.2d
80S. 07 (Fla. 2d DCA 2002);
Holsclaw v. Smith, 822 F.2d 1041
(1I 1b Cir. 1987).
The
order
revoking
probation was reversed and the case
was
remanded
for
further
proceedings.

The

Murphy v. State, 32 FIa.L.Weekly
0868 (FIa Sib DCA 3130/07)

Eddie Murphy appealed his
habitual sentence asserting that the .
State failed to give him sufficiel1t
written notice of its intent to seek
habitualization, and that in any event
the lower court failed to inquire
during the plea colloquy whether he
was aware of the consequences of
habituali73tion.
At Murphy's plea and
sentencing hearing, Mwphy was
asked if he had read and understood
the plea agreement that he signed, to
which Murphy replied in the
aftinnative. The agreement basically
said that there was no dispositional
understanding ·and. that Murphy was
pleading to a habitual traffic offender
charge. It further indicated that if
Murphy had two' or more prior
felonies. he might receive a sentence
double the nonnal five-year sentence
for a third-degree felony. No further
explanation was given.
During Murphy's -sentencing
from 'his "open" plea agreement, the
State pointed out that they had filed a
"habitual felony offender notice" in
open court that showed -numerous
prior felony convictions. The lower
court sentenced Murphy to 5 years
prison, and the court stated:
"Furtbennore, Mr. Murphy, I'm
going to find that you are a habitual
felony offender and this S-year
sentence is as a habitual felony
offender. Because it is as a habitual
felony offender seotenre, I could
have sentenced you to 10 years, but I
don't choose to do that."
On appeal, it was opined that
while the lower court is required to

Florida Prison Lega I Perspectives
infonn a defendant only of the direct
consequences of the plea and is
under no duty to apprise him or her
of' any collateral consequence,
knowledge that habitualization may
affect the possibility of early release
through certain
programs .. is
considered a direct consequence' or
one that bas a definite, immediate,
and largely automatic effect on the
range ofa defendant's punishment.
In Ashley v. Stale, 614 So.2d
486 (Fla. 1993). the Florida Supreme
Court set the requirements of what
the lower court is to be infonned of
in such habitual sought sentences.
Further, the lower court should,
during the plea colloquy, discuss his
or her eligibility for habitualization,
as well as the maximum habitual
offender term for the· charged
offense. the :fact that habitualization
may affect the possibility of early
release through programs, and where
habitual violent· felony offender
provisions are implicated, the
mandatory minimum tenn.
See:
Major v. Siale. 814 So.2d 424, 429
(Fla. 2002); Black v. Siale. 698 So.2d
1370 (Fla. 2d DCA 1997).
Consequently. the appellate
court detennined that the lower court
in Murphy's case failed to satisfy the
requirements for habitualization.
Accordingly. the judgment and
sentence was reversed and Murphy's
case was. remanded for the lower
court to allow Murphy the
opportunity to withdraw his plea and
proceed to trial. However, it·was
further instructed that if Murphy
should plead no contest or guilty. the
lower court could, in its discretion,
impose a guideline sentence or a
habitual offender tenn provided that
the requirements of section 77?084,
Florida Statutes and Ashley are met.

•

••

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.:~.

•

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AN"'"

,1IJ;I!It\11I1 II \

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'~"'l.~ ---l.."""':-""'':'::, ~":"""J

Report No. 07·16

5'ome Inmate Family Visitation Practices
Are Not Meeting the Leglslatura's Intent
Backgnound-----------

Scope - - - - - - ~".ptt'1 :.~:z:;.

(,)rPAGA

U'YI ttl _

em-

11.) condlolt'l I Nnt~VQ ~

0: t"or Drp&ttnlt'l'r oj Ccrrtdfnns.

1IdJ I'fpctI1
.,..."."... t:", d<...,-.u', f""'i= 10k..., to
l"'"""""'Iilnntale_wilhlllti,,_

OHit't.'ttI 1''''$f'W' 11>Ji<'Y ~& as...","'...., A«rJtUItUllity

om olii,. III1M RNi.h Lf!GiWttlrr

Last year Florida Prisoners' Legal Aid Organization was contacted
by the Legislature's Office of Proiram Policy. Analysis and
Government Acc:ountability (OPPAGA) for assistance on compiling a
report concerning the proble~s faced by families of Florida state
prisoners. FPLAO arranged a meeting in Orlando between OPPAGA
staff and a group of family members and assisted OPPAGA in setting
up other meetings. in oitter parts of the state. The above report is the
result of those meetings. While OPPAGA's report did not address all
the issues that FPLJ\O and family members brought to the researchers'
attention, the report does address several problem areas experienced by
prisoners' visitors.
. OPPAGA makes several interesting recommendations to the
Department of Corrections to improve maintenance of family of family
contact with prisoners in the report and responses from the DOC and
Department of Management Services ~ included in the 12 page
report.
A copy of the report (which should be read by all family members)
is freely available in print or on the Internet. To obtain a copy contact
OPPAGA by telephone (850/488·0021 or 800/531~2477), by FAX
(850/487-3804), in person, by mail (OPPAGA Report Production,
Claude Pepper Bldg.• Room 312, 111 W. Madison St•• Tallahassee. FL
32399.1475), or on the Internet (www.oppaga.state.f1.us).•

Florida Prison Legal Perspectives

Loren D. Rhoton

I
------------Postconviction Attorney
•
•
•
•
•
•

Direct Appeals
Belated Appeals
Rule 3.850 Motions
Sentence Corrections
New Trials
Fed~ral Habeas Corpus Petitions

412 East Madison Street, Suite 1111
Tampa, Florida 33602
(813) 226.;3138
Fax (813) 221-2182
Email: lorenrhoton@rhotonpostconviction.com
Website: www.rhotonpostconviction.com

The hiring. of a lawyer is an i(T1portant decision that should·not be based sol~ly on advertisements.
Before you' decide, ask us to send you free written information about our qualifications.

BUY THE BOOK - ON SALE. NOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Postconviction Corner Articles
A collection of Loren Rhoton's Postconviction Corner articles is now available in one
convenient book geared towards Florida inmates seeking justice in their cases. Insights basea
on professional experience, case citations, and -references to the relevant roles of procedure
are provided. This book is specifically directed toward.those pursuing postconviction relief.

To order, send $20.00 in the form of a money order, cashier's check or inmate
bank check (no stamps, cash or personal checks please) to the address above, or
order online at www.rhotonpostconviction.com.
26

Florida Prison Le2al Perspectives

Challenging Continued Retention
in Close Management
by Melvin perez

his article is intended
help prisoners in Close
cbalIenge
T
continued CM retention. We know how hard it can
to

Management

(hereinafter

CM),

their.

for prisoners trying to cballenge their continued CM
retention and not have the proper information to do so, or
not be able to get 'the help they need. Whether this is
caused by DOC staff or. incompetent law clerks that are
unable to provide the assistance necessary to pursue such
administrative or judicial remedies, it hinders prisoners'
ability to seek proper relief. Therefore, in this article, will
be discussed both administrative and judicial remedies
that can be used in cballenging continued CM retention.
Rorida Administrative Code (hereinafter FAC.),
Rule 33-601.800(l6)(c)-(d), provides in relevant part that:
"When an inmate bas not been released to general
population and is in any CM status for six (6) months, the
classification officer shall interview the inmate and shall
prepare a formal assessment and evaluation on the report
of CM. If it is detennined that no justifiable safety and
security issues exists for the inmate to remain in CM, the
ICT shall forward their recommendation for release to the
SCOfor review. For an inmate to remain in CM the ICT
shall justify the safety and security issues or cin:umsIances
that can only be met by maintaining the inmate at the
current· level or modifying the inmate to another level of
management." We all know that classification officers in
CM units are not conducting these interviews as required
by this rule. The practice is to serve a prisoner his or her
CM papers before going in· front of the CM board.
Further, classification officers have been .justifying
continued CM retention with general statements on a
prisoner's CM papers like: "Based on serioQsnessof
original placement reason and/or· inmate's prior
adjustment, safety and security concerns eXists and
continuation of CM is warranted." This general statement
does not meet the requirements. to justify continued CM
retention. It does not justify what safety and security
issues or circumstances that legitimately exist to keep the
prisoner on CM. Prison administrator's ~d assertions of
securitY interest will not justify loss of· prisoner's
fundamental rifts. See: Bradbury. v. Wainwright, 718
F.ld 1538 (II Cir. 1983). Thus, after this six month
period, if there are DO legitimate pemlogica1 reasons to
keep a person on CM, he or she must be reIe3sed to the
general population as provided by the aforementioned
rule. Since this is in line with Osterback v. Moore, Case
No. 97-2806-Civ-Huck, Defendant's Revised Ofrer of
Judgment, .. page 2, which states, "The goals of the
department's close management program shall be (I)
progressive assignments of each inmate to the least
restrictive level necessary and appropriate to mamge each
inmate and for the least m:nount of close management time

deemed necessaJy by competent corrections and medical
staff to assure the security and order of the institution and
public. safety, and (2) close management is not
punishment." If no legitimate basis is given to justify
such continued CM retention, after going before the CM
board, and the state classification office (hereinafter SCO)
agrees with the recOmmendation from the institution, the
next step would be to pursue administrative remedies.

Administrative Remedies
Prisoners may challenge their continued CM
retention by filing a formal grievance to the warden within
15 calendar days from the date that the SCO approved the
leT's recommendation. See: F.A.C., 33-103.ool(3)(a).
A prisoner that is cballenging CM retention does not have
to file an informal grievance before filing his or.her fonnal
grievance. See: F.A.C.,33-103.oo5(1). The requirement
that the prisoner shall attach a copy of the infonnal
grievance and the response to the infonnal grievance to
his DCI-303 does not apply in such situation. See:
F.A.C., 33-103.006(2)(h). Many times a grievance is
denied because of the failure to file an informal grievance
or failure to attach a copy of the informal grievance and
response to the formal grievance filed with the warden.
However, this practice is contrary to the rules quoted
above, and prisoners should point this out, if the fonnal
grievance is denied for any of these reasons.
A prisoner must allege, among any other reasons,
that the Dept. lias failed to follow their own rules and that
such failure amounted to a denial of due ~rocess under
Art. I., Sec. 9 ofthe Fla. Constitution aDd 14 Amendment
of the U.S. Constitution. . He or she must point out, that
the leT failed to justify what issues exist for the prisoner
to remain in CM, and that the SCO failed to comply with
F.A.C., 33-60L8oo(16)(e), in approving the ICT's
recommendation. . Sub-seCtion (l6)(e) states in relevant
part: "For an imnate to remain in close management, the
seo shall determine based on the reports and
documentation that there are safety and security issues or
circumstances for maintaiDing the inmate at the current
level or at a modified level of management."
The FDOC, instead of releasing p~ers after the
first six months at any leVel of CM, if no legitimate basis
exist, bas been modifying prisoners to a lower level and
keeping them on CM. Most times prisoners stay on the
same CM level based on the same reasons as in prior
hearingS. Not to mention the many bogus disciplinary
reports written by DOC staff with the very intention of
keeping the prisoner on the same level for another three to .
six months. And at times up~g prisoners to a higher
CM level.
Rule 33-103.011(3)(b) provides that the formal
grievance filed to the warden shall be responded to within
twenty (20) calendar days. If DO response is received
within that time, a prisoner may go to the next step of the
grievance proCess. If this occurs, the prisoner must clearly
27

Florida Prison Legal Perspectives
indicate this filet when fi1iog at the next step and also state
that no .extension was agreed to by the prisoner. See:
Rule 33-103.011(4).
.
If the formal grievance is denied, the prisoner bas
15 calendar days to file an appeal to the office of the
secretary from the date of the denial. He or she must
attach a copy and ~nse of the denial ofhis institubooal
grievance. If the 15 day faUs on a weekend or holiday,
the due date shall be the next regular work day. See: Rule
33-103.011(5). The first DCA bas ruled that the mailbox
rule applies to grievances filed
prisoners. . See:
Gonzaleiv. State, 604 So.2d 874 (F1a. 1"1 DCA 1992).
The appeal should argue the respQDSe received
from the warden, any factors not addressed by
Respondent, that mandatory 1anguage and substantive
predicates in DOC rules and regulations conc:eming CM
create for prisoners a liberty interest in remaining in the
general prison population. rather than in CM, that the
failure to follow their own rules amounted to a denial of
due process, and any other issues that may be present.
Remember that you must put in your ~ anything
you want the court to consider, if your administrative
remedies are denied.
If you don't aigue anyissue on your grievances.
you may not try to raise them in any judicial proceedirJ&cz.
. The relief sought. among others, should be the release of
the prisoner to the general population. If this fiills, there is
only one option left, judicial remedies.

Judicial Remedies
A prisoner may pursue judicial relief after he bas
exhausted all administrative remedies.
Even if no
response was received funn his appeal to the secretuy.
Rule 33-103.11(4) proVides in pertinent part: "If the
inmate does not agree to an extension of time at the
central office level of review, he shall be entitled to
proceed with judicial remedies as he would have
exhausted his administrative remedies."
Similarly,
boilerplate denials. of an allegation that DOC declined to
address in either· the disciplinary proceediD&' or the
administrative grievance process bas been held to be
insufficient -to raise a material issue of fact, and a
prisoner's fuctuaI allegation in this regard should therefore
. ~ deemed to be admitted as tJUe. See: Pehrlnger v.
McDonough, 32 Fla.L.Week1y D131 (Fla. III DCA Dec.
28,2006).
.
The proper vehicle to pursue a claim oftbis nature
is by way of a writ of habeas corpus. See: Taylor v.
Perrin, 654 So.2d 1019 (F1a. 1"t DCA 1995). Habeas
corpus affords a prompt judicial determination of the
validity of a restraint or detention.. See: Seccia v.
Wainwright, 487 So.2d 1156 (FIa. III DCA 1986). This
petition must be filed in the cin:uit court for the coimty in
which the prisoner is detained. See: Wilder v. State, 909
So.2d 536 (FIa. 1st DCA 2005), and RJchardon v. Stine,
918 So.2d 999 (Fla. 5111 DCA 2006).
28

The subsequent transfer ofa prisoner to a different
CM institution does not defeat circuit court jurisdiction, if
the prisoner Was detained within the circuit at the time the
petition was filed. See: Perkins v. State, 766 So.2d 1173
(Fla. 5- DCA 2000). The jurisdiction of the circuit court
to entertain the petition is ~ in Florida Statute 79.09
and the power of the court to grant the petition is found in
the Florida CoostitutiOD, Art. I., Sec. 13.
In order for the court to treat the ~on as the
proper remedy, the prisoner must allege that he is entitled
to inunediate release. See: Campbell v. Florida Parole
Comm'n, 630 So.2d 1210 (F1a. 111 DCA 1994). Sincethe

prisoner is in CM. he must allege that the writ. if granted,
would entitle him to immediate release from CM to the
general prison population. The fiillure to allege a right to
immediate release will resuh in the petition being treated
as a writ ofmaodamus. See: Rowe v. State, 765 So.2d 94
(FJil. IS DCA 2000), and Ashley v. Moore, 746 So.2d 584
(FIa. III DCA 1999). Moreover, the prisoner must allege
that he has exhausted all available administrative remedies
or it will be considered &cially insufficient. See: Roy v.
Dugger, 592 So.2d 1235 (FIa. III DCA 1992).
.
When filing the petition for writ ofhabeas corpus,
the prisoner must raise grounds of harassment, lack of due
process. fiillure of the Dept to comply with its' own rules
regarding CM or any other grounds which would provide
a basis to gnmt his ~ funn CM. provided· that these
grounds were raised via the administrative process.
Failure to raise these grounds will result in the writ being
properll denied. See: Holland v. State, 791 So.2d 1256·
(FIa. 5 DCA 2001). A prisoner must attach as exhibits to
his petition a copy of the grievances filed at both the
institution, and central office, the responses thereto, and a
copy ofhis CM
that he receives after the hearing.
Prisoners should note that many courts deny these
petitions because the prisoner also fiills to allege that his
CM placement imposes "a typical and significant bardship
on the prisoner in relation to the ordinary incidents of
prison life." See: Sandin v. Conner, SIS U.S. 472 (1995).
A prisoner bas a liberty interest to remain in the
general population. On this same issue, the lilA Cir. Court
stated, "Mandatory language and substantive predicates in
department of corrections rules and regulations concerning
administrative segregaUon and close management create
for inmates a liberty interest in remaining in the general
prison population,· rather than in close management."
Mcqueen v. Tabah, 839 F.2d 1525 (11111 Cir. 1988).
Prisoners, in their petition. should name as
Respondent ~ secretary of the FDOC since the secretary
of the FDOC bas responsibility for all matters pertaining
to the governance and control of· prisoners in DOC
custody. See: Plymel v. Moore, 770 So.2d 242 (FIa. lit
DCA 2000).
FurthermOre, such petition should be filed under
Rules of Civil Procedure. Rule 1.630(a). Under the
aforementioned rule the petition must contain:

papers

Florida

P~ison

Legal Perspectives

(l) the facts on which the plaintiffreliesfor relief;
(2) a requestfor the reliefsought; and
(3) if desired, argument in support of the petition with

citations ofauthority.
This rule does not set a time period to file such
petition. Likewise, no other role found in either appellate
or civil rules of court provides for a time limitation to file
such petition. The 30-day time limitation for filing
petitions for writ of mandamus cballenging disciplinary
actions after the denial of the final appeal to the secretary
does not apply in filing this petition. See: Martin v.
F/onda Parole Commission, 32 FlaL.Weekly 0686 (Fla.
III DCA, March 13.2007). Nevertheless. prisoners should
file their petition in a reasonable time after the denial of
their last administrative appeal. An unreasonable delay in '
seeking an extraordinary remedy may result in a denial of
relief on equitable grounds. See: Brown v.State. 88S
So.2d 391 (Fla Sib DCA 2004).
In Anderson v.
Singletary. 688 So.2d 462 (FIa 41b DCA 1997). the court
held that a petition for writ of habeas COJPUS was barred
by the doctrine of laches. The original petition must be
sent to the clerk of court and a copy served to the general
counsel for DOC.
There is no cost for filing this petition, aDd no
requirement to file an affidavit of insolvency along with
this. petition. See: Bocharsld v. .Circuit Court ofSecond
Judicial Circuit, SS2 So.2d 946 (Fla. r t DCA 1989). So
the court can't place a lien on a prisoner's account for
filing this petition. In fact, the Florida Constitution,
Article I, Section 13. provides that, ''The writ of habeas
corpus shall be grantable of right. freely and without cost.
It shall be returnable without delay. and shall never be
suspended unless. in
of rebellion or invasion,
suspension is essential to the public safety." Moreover,
the trial court clerk must docket a habeas corpus petition
without payment of a filing fee. See: Bradley v. Sturgis,
541 So.2d 766 (Fla. Sib DCA 1989).
Within a reasonable time after the filiog of the
petition, the court should issue an order to show cause
before entertaining the merits of the prisOner's claims. If
the court denies the. petition without ordering a show
cause order, under certain circumstances this may
constitute a departure from the essmtial requirements of
law and the DCA should reverSe the lower court's denial.
See: Duncan v.. Fla. Parole Commission. 939 So.2d 176.
(FIa III DCA 2006). If a sh9w cause order is issued, the
court will usually give the general counsel 20 days to file
a response. and the prisoner bas 20 days from the date of
the response to file a reply to their response. A prisoner
does not have to file a reply, if he does not wish to file
one. The original, must be sent to the court and a cOpy to
the general'oounsel. iffiled.
If the lower court denies the petition, the proper
remedy to seek further review would be to file a petition
for writ ofcertiorari in the DCA Pursuani to Florida Rule

case

of Appellate Procedure 9.030(b)(2)(b), a circuit court
order ruling on an administrative action is reviewable in

the district cOurt by certiorari. See: Sheley v. Florida
Parole Commission, 720 So.2d 216, 217 (Fla. 1998) and
McDuffy v. Moore, 747 So.2d 1003, 1004 (Fla. 2d DCA
1999).

.The writ of certiorari should be filed within 30
days from the lower court's denial. See: Rules of
Appellate Procedun; Rule 9.IOO(c).
Moreover. the
petition must attach an aPpendix, which shall contain
references to the appropriate pages of the supporting
appendix. In this case the appendix would be made of the
initial petition filed with the lower court, any responses. or
replies filed, along widt any show cause order, and the
final order denying the· petition.
They should be
Dumbered by letters with an index that refers to each
pleading by the proper letter. The original must be filed
with the DCA. The appendix does not need to be served
on the genemI counsel since he a1ready has a copy or'the
lower court pleadings. However, the prisoner should send
him a copy of the index to the appendix.
The purpose of an appendix is to permit the
parties to prepare and transmit copies of those portions of
the record deemed necessary to an understanding of the
issues preselJtec1. In King' v. Byrd, S90 So.ld 2 (FIa Iii
DCA 1991), the district court, denied a.petition for writ of
habeas corpus, in part, because the petitioner bad Dot
attached a transcript of the pmceec1i. in the trial court.
The appendix must CODIain the pleadings and other
portions of the record that are necessary for a
determination of the petition. In Keene v. Nudera, 661
So.ld 40 (Fla. 2d DCA 1995). the court dismissed a
petition for writ of certiorari in part because the appendix
was not sufficKint.. For more infoonation on preparing the
appendix. see FlaJUPp.P. Rule 9.220(b)..
. When filing the petition in the proper DCA, some
courts require that an affidavit of insolvency be filed along
with the prisoner's six month bank statement. Some
courts like the first DCA will dismiss the petition if this is
not filed. ~, the DCA will usua1Jy issue an order
to show cause giving the general counsel 20 to 30 days to
file a response and the same order will atWise the prisoner
how much time he will have to file a reply, if he wishes to
file one. The prisoner is not required to file a reply in this
case either.
In addition, when filing pleadings with the courts.
some courts impose a page limit. For example, a petition
filed under rule 9.100 may not exceed fifty pages. See:
F1a.R.App.P.9.100(g). The response'filed by the DOC is
subject to the same limits. In the same manner, if a reply
is filed by the prisoner under the aforestated role, it may
not exceed fifteen pages. These page limits don't apply to
the appendix. .
The standard of review for certiorari in the district
court is limited to whether the circuit court afforded
. procedural due process and whether the circuit court
.

Florida Prison Legal Perspectives
applied the correct law. See: Combs v. Slole, 436 So.2d
93 (Fla. 1983), and City ofJacksonville Beach.v. Mansol,
706 So.2d3S4, 355 (Fla. 1111 DCA 1998). Keep this in
mind when arguing your certiorari petition, since this is
the only thing the DCA will consider.
Hopefully, this article will help those improperly
retained on CM successfully challenge their continued
retention and provide useful information needed in
pursuing both administrative and judicial remedies.•

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VOLUME 13 ISSU~ ~:':'in:.'f/JtrNE 2007
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