Fplp Sep Oct 2008
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FLORIDA PRISON,LEGAL ers ectives ISSN# 109)..-8094 VOL ME 14 ISSUE 5 SEfI/OCT 2008 Aramark Bites the Dust also started making FBOC staff actually pay for meals they ate at the prisons, albeit at minimal cost. However, by Teresa Bums Posey any cost was resented, for someth.ng that previously had been mostly free. And then there was the fact that Aramark personnel, outsiders, _took over jobs previously fter almost seven years of bilking state taxpayers out held by FDOC staff. of miUions and millions of dollars by starving state DUrin~ the first ~ear ~er Aramark took over prison p~soners with substandard food, on September 9, 2008, ' food service the animosity between its personnel and pnvate food service vender Aramark announced that it FDOC staff be~e palpable.. At most prisons, FDOC will terminate its contract with the Florida Departm'ent of beg~ ~ organized campaign to run the company staff Corrections(FDOC) to provide food ~o Florida prisoners. out, harassmg its personnel and writing the company up , Aramark, one of the biggest -names in the nation's for the slightest deviations in food service. That situation privatized food-service industry, was given the contract in grew until orders came down from on high, perhaps-from 200 I to feed state prisoners, replacipg the FQOC's inin~cting -FDOC staff to back off the governor's office, house food system, as one of several privatization Aramark, or else. Which they did, but a level of ventures started while Jeb Bush was governor. Often resentment remained. "We have been unable to achieve c?ticized for cutting corners to maximize profits, and . t~etyp~ of partnership consistent wi~ our expectations for Virtually hated by prisoners who were the victims of the p~slt1Ve long-term' relationship," wrote Tim, Campbell, a cut comers, Aramark will stop serving meals in the preSident of Aramark Correctional Services when prisons January 9. "infonningthe state that the company ws pulling o~t of the The company noticed FDOC in September that it is contract. , invoking a 120-day termination clause in the contract The relationship between Aramark and FDOC further citing as the reasons "unprecedented''' inflation in food deteriorated when the department replaced Aramark with costs and a poor working relationship with the department. Trin.ity Food Services, another private food vender, in From the beginning of the - contract,' Aramark's Region II of the FDOC ,late last year. Trinity had been relationship with the FDOC cO,uld only be described as Aramark's main competition for Florida's prison food rocky. sea:v!ce. However. until last year. Aramark' had kept FDOC employees, use to supplementing their income Tnmty confined to providing food at only a few prisons in with free food siphoned off of stock purchased to South Florida under a separate contract, while Aramark supposedly feed prisoners, were extremely resentful when served the majority of priso~s. The Region II change-over Aramark locked down th~t decades-old bounty. Aramark A , N'''' I~ THE . 'INSIDB . ,- . ... d~~ '. ,w»' Conditional Release- An Infinite Web ~ : 5 Obtaining Records From Counsel : 7 Letters 10 Notable Cases...........•.•..•...•..•. ~ ~ ..............•..11· Post Conviction Comer : 17 DR Grievances. Appeals andJudicialRemedies 20 • Florida Prison Legal Perspectives on October I, 2007, almost equally divided the privatized prison food system between Aramark and Trinity, and no doubt reduced Aramark's profits. On top of having its business substantially reduced, during this year alone. the state fined AramarkS26I,OOO for contract' violations, ranging from delays iii feeding lines and excessive substitutions ofmenu items. A review last year by the FDOC's inspector general "found" that Aramark earned "windfall" profits because it was allowed tQ serve cheaper ground turkey scraps instead of real beef as the set recipes called 'for and because Aramark was being paid based on the number ofprisoners at a prison, not on the number· of actual meals served. (Both situations which have existed ~ince Aramark began feeding prisoners in 2001.) The inspector general recommended that the contract be rewrote or that food service return to an in-house, FDOC, operation. Then in February this year, the Campaign for Quality Services, a joint project of the Service Employees ' International Union and I UNITE HERE, held a rally in Miami where labor, elected and community leaders, and prison activists, including representatives from Florida 'Prisoners' Leal Aid brpnization, Inc., also called for a state investigation ofAramark's contract with the FDOC. (See: FPLP, Vol. 14, Iss. 2, "Union/Activists Call for Investigation of Aramark's Florida Prison Contract," pgs of S~J . For prison officials the issue isn't solely about stuffing prisoners'. stomachs. Many correctional experts believe decent food is key to good securitY and avoiding lawsuits alleging inhumane treabnenl "Food really becomes a security issue for us," saidFDOC Secretary Walter, McNeil recently. Under pressure by the Legislature to cut prison food costs by $9.3-million without sacrificing quality, in August McNeil invited other private venders to submit bids hoping to find a company to feed prisoners . cheaper. In reality, however, with Florida's newer generation of prisoners, the relationship between food and security is not as apparent as in the past. Aramai"k proved that Florida prisoners will essentially' eat what people on the· outside would consider garbage, without protest. Nasty lo()king and tastinggtllUnd turkey scraps in almost every meat dish; cabbage substituted for most other vegetable dishes; raw, uncooked beans, rice and potatoes; salmonella-ladeD' uncooked chicken that regularly caused widespread food poisoning in the prisons; filthy trays and eating utensils, have all been common in most Florida prisons since 2001 under Aramark. Except in a very few incidents, prisoners largely accepted that situation, complaining among themselves while steadily gobbling down such swill. Afraid to file grievances or "stop the !ine," as prisoners use to reguJarly and effectively do to obtain better food, today's prisoners demonstrated that even for decent food they were unwilling to stand together, as if they gave up FIQrida Prison Legal Perspectives every bit of pride and self-respect when they walked in the prison gates. And to be fair, it didn't only start with Aramark. Many prisoners who have been in a while claim they wish FDOC would take back over food services, claiming it was better. Pel'haps they have forgotten the frozen egg salad filled with egg shells, the purple and green slabs of slimy turkey corn "beef," the un-chewable "roast bee!;" the date-expired turkey burgers. Maybe it slips their memory when they were expecting to get roast turkey or ham for a holiday, only to learn the load of ham and turkeys went out the back gate and were later distributed to staff. And maybe they don't remember that with the FDOC they never got fresh salad, fruits, ,?r fruit juice. The contract with Aramark was deliberately written to allow the company to make "windfaU" profits, at the expense oftaxpayers' pockets and prisoners' health. It took seven years and a tightening of the state budget before it was decided that Aramark had done enough damage. Whether what comes next is any better (or wo~e) remains to be seen. It may be that Trinity will take over food service for the entire moc, which is a step up from Aramark. If other companies get involved, underbidding to be the cheapest, things may go further downhill. In that case, unless prisoners work together (as they use to do) to ensure decent food for all, it may be another seven years before FDOC says, "Oh: we just found out that this isn't right." , • CaryF.Rada THE DALEY LAW OFFICE, P.APost Conviction Parole Appeals Biennial Extraordinary Writs Credit State" Federal Habeas. Revocation Score Sheet Issues aemency Dedicated to Aggressive Criminal Defense Board Certified Criminal Trial Lawyer Former State Prosecutor 901 North Gadsden Street .Tallahluee, FL 32303 (850) 124-5813 www.dal~llw-omce.com POST-CONVICTION' SERVICES • • • • • • 3.850 Motions Sentence Corrections Federal Habeas Corpus State Habeas' Corpus Appeals NewTrials ·613· CEImFIED 'Ibe FIoma Bar CRIMINAL TRIAL lAW • Cary F., Rada, P.A. 318 North Texas Avenue Tavares,FL 32778 352-742-2778 E-Mail: info@CaryRada.com Florida Prison Legal Perspectives Repatitise New Priso.. to Prepare Prisoners for Re-entry A by Mark V. Miller juvenile correctional facility in Polk County was he latest estimate is that 40% of the prison population closed earlier this year and turned over to the Florida is infected with the Hepatitis C virus. Unless you Departmentof Corrections to become a state prison meant specifically ask to be tested for ,Hepatitis C virus. the to prepare adult state prisoners for successful re-entry into FDOC will not include that test in any routine blood work. There are no outwardly apparent symptoms 'of this . society. , The former Polk Juvenile' Correctional Facility will disCll$e until it is virtually too late to,treat. The death from reopen before the end of this year as the Demilley this disease is lingering and horrible. The liver stops Correctional Institute. It will serve as Florida's first prison filtering because of cirrhosis ,(scar tissue) aqd the normally specifically designed .with the goal of reducing Florida's eliminated toxins leak out of the liver. These fluids begin almost 50 percent recidivism rate since the 1970s. collecting in your abdomen. Your body then begins to ~hut "Investing mo~ey in~o programs of this type will _ down and it becomes a slow poisoning ofyou,r system. enable us to avoid the tremendous costs associated with If you have' ever shared a. needle. had tattoos done in building more prisons." said. FDOC Secretary Walter prison. or shared a straw or similar object snorting drugs. McNeil. The' politically popular "lock 'em up and throw you may' have been exposed. Unless you are tested the away the key" approach to crime is not being tough on la~ FDOC is under no obligation to diagnose or treat this and order. its being' financially irresponsible. McNeil. a disease. The treatment is very expensive and with former police chief and head of the' Department of everything being based on money, budget cuts. and cost Juvenile Justice. said earlier this year. He also said that it efficiency-it is cheaper to bury you. . has been proven that the "lock 'em up..." policy doesn't The treatment is generally 48 weeks with weekly ~ork that it only increases crime and increases the burden ' injections of pegylated interferon and twice daily capsules on taxpayers. . . of Ribavirin. Many stop treatment due to side effects. Demilley CI will house close to 400 prisoners once it is They are very similar to having a sevo-e flu: aches, pains, . fully up and operational. It will only take prisoners who fatigue, nausea, weakness, headaches. temporary hair loss are within three years of release and who. before they will and anemia. The treatment is serious for a serious disease. be sent to the prison. have proven they are willing to The treabnent's side effects are nothing compared.to the effects of the disease and liver failure. The treatment lasts reform. about a year but the horrors ofthe disease sometimes takes Once prisoners go' to Demilley, some will .be able to take part in work release. All of them will also be offered several years before you are finally confined to the drug and alcohol rehabilitation. education and job training, hospital bed dependent on others for 'all your needs. Not a picturesque way to free up a bed for the DOC. Once you and counseling. , "We have devised a plan. and we ~ supervising the reach the terminal stage there is no more money to be building and the re.building of these individuals." said spent on your health care. Franchetta Barber, a top FDOC administrator. Scary? You bet! I've .watched many friends lose the "We believe this is a get smart opportunity for the state battle because t1iey did not learn ofthe disease until it was too late to effectively treat Ask around, read up on it, of Florida," McNeil said. . State prison officials have said that, over the next five become informed. Get tested. Be persistent with following years. Florida plans to spend more than $2-billion, to build up on test results. Ask to see the lab results. Once new prisons. McNeil just doesn't believe Floridians can diagnosed your liver enzyme levels must be monitored; afford to do that. Agreeing with his predecessor as head of These tests'. indicate the rate at which your liver is dealing with the disease. Numbers should be below SO-double or the FDOC•. Jim McDonough. McNeil replaced earlier this triple that shows damage is going on and it only year, McNeil has called for major budgeting.for mental health. job training, drug programs and increased basic progressively worsens. . Proactive is a great word. Unless you do something for education in the state's prisons. he is hoping that if the Demilley facility is successful, that some of. the J;lew yourself no one else will. Don't wait until you are dying to wonder why. Get tested - get treated... your choice. The .prisons to built will be modeled after it. earlier you are treated the better your odds' of recovery.[Sources: Bay News Ch. 9; Fo~ 13. Tampa Bay.] _ The FDOC policy is to· llmonitor" you. This only allows the disease to' worsen and decreases your chances of recovery. Get tested-get treated. Ii 4 T Florida Prison· Legat Perspectives 2001-124, § 5, Laws of Florida (Amended), Effective July . . 1,2001. The DOC and the Commission each have responsibilities under the Conditional Release Program by Dana Meranda Act. Broadly speaking, the Parole Commission's functions are discretionary and quasi-judicial. As an inmate of DOC approaches his 'release date, 'the Commission deteonines he Conditional Release Program Act was created in . 1988. See Ch. il8-122 § 19, Laws of Florida. whether to place the. inmate on Conditional Release, as Conditional Release is a creature of .statute. Section well as the conditions thereof. To aid the Commission in 947.1405(2), Florida Statutes (1988), (Supp), provides in this function, the DOC is charged with interviewing the pertinent part, Conditional Release applies to:' . inmate, compiling relevant records,~ an4 making recommendations that the Commission is free to accept or (2Xa) , Any inmate who is convicted of a crime 'reject Once the Commission makes its determinations, the DOC is charged with explaining the conditions to the. committed on or after October I, 1988, which crime is • contained in Category 1,2,3, or 4 of Rule 3.701 and Rule inmate and supervising him or her during the period of Conditional· Release. § 944.09(4)(h), Fla. Stat.; Fla. 3.988 Fla.R Crim.P. (1993), and who has served at least one prior felony. commitment . at a State ~r FedenU Admin. Code, Chap. 33-302.109. Probation and Parole COJTeCtional Institution; . 'Field Services .is the DOC entity responsible for supervising offenders on, Conditional Release. See: DOC . (b) Is sentenced as a Habitual or Violent Habitual Offender or a Violent' Career Criminal purSuant to .§ v. Williams, 901 So.2d 169, 170 (Fla. 2= DCA 2005). Similarly, Chap. 33-302.111, Fla. Admin. Code and 715.084· or; (c) Is found to be a sexual predator under § 775.021 or F.D.O.C. Procedure 302.325(2), outlines the criteria for early termination of supervision. former § 775.23 ... shall, upon reaching the tentative. release date or The Commission is authorized to establish the length provisional release date, whichever is .earlier, as and conditions of the supervision, as long as the length established by the Dept. of Corrections, be released under does not exceed the maximum penalty imlosed by the supervision pursuant to § 948.09, Flori.da Statutes. Gove v. sentencing court. Crosby v. Bolden, 867 So.2d 373, 374 F.P.C., 816 So.2d 1150, 1152 (Fla. 1st DCA 2002). (Fla. 2004). The Commission may impose any special conditions it " Under the specific authority of §§ 947.07 and 947.20, .considers warranted from its review of the release planFla. Stat. (2006), the Parole Commission's own rules and recommendation. § 947.1405(6), Fla. Stat. (2006). concerning Conditional Release contained in Ch. 23If the Conditional Release is revoked and the releasee .23, Fla. Admin. Code. . . is returned to prison, the" DOC" may declare a forfeiture of As stated.in Evans v. Singletary, 737 So.2d 505, 507 an"gain-time earned up to the 'date of release. Frederick v. McDonough, 931 So.2d 1005 (Fla. 3rd DCA 2006); (Fla. 1999), "Conditional Release (as·opp~sed to Control Release, Provisional Credits, ~d Administrative GainDuncan v. Moore, 754 So.2d 708, 710 (Fla. 2000). see: § Time), is not an early release program. Conditional. 944.28(1), Fla. Stat. (Gain-Time Forfeiture Statute), Release is an extra post-prison, probation-type program. provided, in subsection (1) for Conditional Release. See: Ch. 88-122, § 9 Laws of Florida (effective July I, 1988). In other words, when an inmate is released due to gaintime from a sentence that is eligible for Conditional West F.S.A. § 944.28, Historical and Statutory notes. Release, instead of going free as other offenders would do A~ptance of Conditional Release did not constitute a (Unless they have probation or some other supervision 'to waiver of his rights to object to the impropriety of follow) these offenders are placed on supervision for the applying the provisions of § 947.1405 (Conditional amount oftime equal to the gain-time they have accrued." Release Program Act) to him. Gove v. F.P.C.~ 816 So.2d According to FDOC Annual Report, FY 2005-2006, I1s0, 1153 (Fla. rlt DCA 2002). (Prison AdmissionlIntakes) there were 2,153 Conditional To be entitled to relief when the Parole Commission fails to' conduct a conditional release revocation hearing Releases returned to prison on technical violations alone. within the statutorily mandated time period (45 days), the Conditional Release applies to all qualified 'offenses committed' on or after October I, 1988. Westlund v. releasee must show that he was. prejudiced by the alleged delay in addition to showing the statutory vio.lation. F.P.C., 637 So.2d 52, 53 (Fla. 1st DCA 1994). Section 947.1405(2), Fla. Stat. (1989), provides that, Gillardv. State, 827 So.2d 316, 317 (Fla. 1st DCA 2002). The Parole Commission has the authority to either "if an inmate has received (imposed by the court) teon grant or deny a 'Releasee credit for the time spent on of probation or community control supervision to be served after release from incarceration, the period of Conditional Release when that release is revoked due to a violation ofthe teons and conditions of release. Rivera v. probation or community control must be substituted for the Conditional Release supervision." Jefferson v. State, 937 So.2d 833, 834 (Fla. 41h DCA 2Q06), but see: Ch. 5 *ConditionaIRelease* .An Infinite Web T are a Florida Prison Legal Perspectives ,/ 'Singletary, 707 So.2d 326 (Fla', 1998); Gay v. Singletary, 700 S02d 1220-21 (Fla. 1997). Parolees do not have an automatic right to counsel in revocation lroceedings. Mattern v. F.P.C., 707 Sc.2d 806, . 808 (Fla. 4 DCA 1998). . Only a willful. violation 'of a substantial· condition of parole .or probatiqn, which involves a factual finding, Mathis v. F.P.C., 944 So.2d 1182-83 (Fla. I" DCA 2006); Williams v. F.P.C., 949 So.2d 1180-81 (Fla. 1" DCA 2007). HearsayaJone is not sufficient to sustain the revocation of parole. West F.S.A. § 120.57(1)(c). Me"i" v. Crosby, 893 S02d 589, 599 (F.la. 111 DCA 2005). The Parole Commission is not at liberty to reweigh the evidence considered by the hearing examiner in order to find a violation where the examiner's finding to the contrary is supported by "competent substantial evidence." Me"i" v. Crosby, 893 So.2d 598-99 (Fla. III DCA 2005); Tedder v. F.P.C., 842 S02d 1022, 1025 (Fla. III DCA 2003)~ Neither the Florida Statutes nor Florida Administrative Code provide for administrative review or appeal of the Parole Commission's action. Williams v. F.P.c., 718 S02d 331, 332 (Fla. 2nd DCA 1998); Ramosv. State, 834 S02d 257 (FI,. 211d DCA 2002). Section 120.81 (3XA), Fla. Stat. (2006), precludes parolees from seeking review by appeal of orders of the Parole Commission that rescinds or revokes parole. Mabre v. F.P.C., 858' So.2d 1176, 1181 (Fla. 211d DCA 2003). See also: Sheley v. F.P.C. 703 So.2d 1202, 1205 (Fla. III DCA 1997), approved 720 So.2d 216 (Fla. 1998). In the absence of a statutory right, to an appeal, however, review of a Parole Commission order remains available by Mandamus or 'Habeas Corpus. Griffith v. F. P.P.C., 485 So.2d 818, 820 (Fla. 1986); Richardson v. F.P.C., 924 So.2d 908 (Fla. III DCA 2006). The filing of a Petition for Writ of Habeas Corpus (claiming entitlement to immediate release) is. the proper method of challenging the revocation of an inmate's Conditional Release supervision. See generally: § 79.01 Fla. StatlArt. v. Sec. 5(b), Fla. Const. Knowles v. F.P. C., 846 So.2d 1246 (Fla. III DCA 2003); Martin v. F.P.C., 951 So.2d 84, 85 (Fla. III DCA 2007). An inmate's Petition for Writ of Habeas Corpus must be filed in the Circuit Court of the county in which the inmate is incarcerated. Heard. v. F.P.C., 811 So.2d 808 , (Fla. III DCA 2002). The' question of timelines must be raised by the affinnative defense of laches. Spaziano v. 'F.P.C.,. 31 FLW D15976, _ _So.2d_ _(FIa. III DCA 6/912006), citing Johnson v. F.P.C., 841 So.2d (j15, 617 (Fla. III DCA 2003). See also: Martin, supra, certifying conflict with Cooper to the extent Cooper holds that Rule 9. 100(2)(c), Fla.R.App.P. and § 95. 11(5)(f), Fla. Stat., may opdrate to bar a Habeas Corpus, proceeding chaJlenging a prisoner's continued confinement pursuant to the revocation of post-release supervision by the Parole. Commission. Cf. Cooper v. F.P.c., 924 So.2d 966 (Fla. 4th DCA 2006), review pending, No. SC06-1236 (Fla. June 21,2006). . A petition. for Writ of Habeas 'Coipus is constitutionally exempt form all court cOsts and filing fees. Stanley v. Moore,' 744 So.2d 1160, 1t61 (Fla. til DCA 1999). "Once the inmate has had a full review on 'the merits' of a Parole Commission order in the Circuit Court.... Review of Trial Court's order is by Petition for Writ of Certiorari to the District Court of Appea!." Sheley, Id at 217. Bu~ see: Green v. Moore, 777 So.2d 425, 426 (Fla. til DCA 2000), and'Mora v. McDonough, 32 FLW DI29~, Il ~56 So.2d 1203 (Fla. I .DCA 5/17/07Xappeal rather than certionu:i was the proper method to review the Circuit Court's decision where proceeding was concluded on grounds other than the merits). Under Rule 9.l00(c)(I)~ Fla.R.App.P., a Petition for Writ of Certiorari is required to be filed within 30 days of the rendition of the order to be reviewed. . . The scope of review on a Petition for "second-tier" Certiorari is limited to determining whether the Circuit Court: (1) afforded procedural due process and (2) aPplied the correct law. This second-tier certiorari review is simply another way' of deCiding whether the lower court '~departed from tJte essential requirements of law." The District Court may not review the record to determine whether the underlying agency decision is supported by competent, substantial evidence. Mabrey, Id at 1181. ' Although the foregoing'discussion covers some of the main points of Conditional Release. it is by no means exhaustive. Offense dates and statutory history ,are important. Therefore, the· best practice to achieve a just and deserved result is to re~h on a case-by~e basis. ENDNOTE • Deason v. State, 688 So.2d 988 (Fla"'" DCA 1997), approved 705 So.2d 1374 (Fla. 1998), Conditional Release Statute' provided for habitualized sentencing as separate independent criterion for Conditional Release and did not additionally requ'ire conviction sentencing guidelines. _ ____.. . .=*-0.. . - c, 6 Florida Prison Legal Perspectives Obtaining Records From Counsel by Melvin Perez ften a prisoner will write. to hi.s or her former counsel and request pertment records for the' O preparation of post-conviction At times, for pl~adings. whatever reason. counsel is reluctant to provide such records. With statutes of limitations running and misadvice by incompetent law clerks. the prisoner is unaware of the proper remedy to seek. With this said I write to explain the remedy a prisoner can pursu~ should this problem arise. However. before I go into the remedy the prisoner may seek,' it's important to know the different principles of law that apply to' a public defender, an appointed private attorney, and Ii retained attorney. For purposes of this article, the inain focus will be on public defenders and court-appointed private attorneys. . Public Defender The law is clear that an indigent defendant is entitled to his criminal trial transcripts, including depositions. prepared at public expense and that a writ of man~us is a proper means to c;ompel a public defender to furnish a defendant with such transcripts. See: Pearce v. Sheffey, 647 So.2d 333 (Fla. 2nd DCA 1994). Court-Appointed Private Attorney .' Florida courts have explained, via decisional law . that private 'counsel who i~ appointed to act as ~ special public defender is an agent of the state and is required to tum over to his client' depositions and other documents produced at public exPense. See: Colon v. Irwin, 732 So.2d 428' (Fla. 51b DCA 1999) and Smith v. State, 889 So.2d 1009, 1010 (Fla. 3M DCA 2004). .' Moreo~er, .a~in mandamus is th~ aPpropriate , remedy smce It IS used to compel an official to perform lawful duties. Thu~ a court-appointed laWyer is an "official" See: Pearce.. supra at 333. Private Attorney . Florida Bar Rules of Professional Conduct. Rule 41.16 (d), requires attorneys' to surrender all papers upon termination of representation. '.' However, for mandamus pUrpOses. Florida Courts have ruled that there is.!!Q duty upon a private attorney to give any of his files to a client free of charge. Exceptions to this are documents which are solely those of the client and held by the lawyer. See: Donahue v. Vaughn, 721 So.2d356 (Fla. Sib DCA 1998). Similarly, . pleadings, investigative reports, subpoena COpies, reports and other case preparation documents are property of the lawyer. He is not required to give tltat material to the client or make copies free ofchatge. Id at356-357. Further, mandamus does not lie to require a private citizen to perform a ministerial duty required by law. Id.. In fact. one court stated that the appropriate remedy in this instance, is an action for replevin. See: Puckett v. Gentry, 577 So.2d 965 (Fla. 51b DCA 1991). Puckett· had argued that his private attorney, who represented· him on appeal, failed to turn over transcripts he paid for./d. . Alternativ~ly, tlte prisoner can file a complaint WIt!' the Florida Bar before resorting to the replevin action. Documents Not Free of Charge .Files prepared and maintained by an attorney for the purpose of representing a client are the attorney's personal property; these are not free of charge. See: Lo!'g v. Dillinger,/7.01 So. 2d 1168, 1169 (Fla. 1997). See als~: Sanford v. Black, 782 So.2d 548, 549 n.2 (Fla. 5 DCA 2001) (noting tltat the client must compensate his specially-appointed public defender for a copy of a lab report that was the attorney's work producQ. . . Furthermore, arguments that the' Public Records Act. Ch. 119, Florida Statutes, entitles a defendant to free copies of all records generated in the case have been held to be without merit. See: Woodson v. : Durocher, 588 So.2d 644 (Fla. 51b DCA i991), and Potts v. State, 869 So.2d 1223, 1225 (Fla. 2nd DCA 2004). Identifying The Records A request for records must specifically idelitify tlte records that. the prisoner seeks which were produced .at public expense. . Nevertheless, if any records were already sent to the prisoner, he must identify the records. he claims were not turned over. . 'Additionally, should tlte prisoner fail to meet these requirements, and then seeks mandamus relief (not for private counsel), the court will not co~pel the attorney to produce tlte~e records. See: Rioux v. State, 949 So.2d 355, 356 (Fla. 41b DCA 2007). and Thompson v. Unterberger, 577 So.2d 684 (Fla. 2nd DCA 1991). . Filing The Petition ,The petition for writ of mandamus must be filed under FloridaRules of Civil Procedure 1.630(b) in tlte circuit court. This applies whether the records sought are from trial or appellate counsel. See: Thompson. supra. . 7 Florida Prison Legal Perspectives UDder this -rule the initial pleading shall be a complaint and .shall co~tainthe. following in order to be faciaUy sufficient: . , (1) the/acts on which the plaintif/relles/or reliet (2) a request/or the relie/sought; and, . (3) if desired, argument in support. oJthe petition with. citations ojauthority. The caption shall show the action filed in'the name of the plaintiff in all cases and not on the relation' of the state.Jd Likewise, the petition should include as exhibits all the requests for documents made to counsel that are at issue and any responses provided by counsel. Rule 1.()30(c) states that a complaint shall be filed within the time provided by law, except' that a complaint for common law certiorari shall be filed within 30 days of rendition of the matter sought to be reviewed. . Under Ch. 95.11(5)(f), Florida Statutes, there is a one-;.year statute of limitations to file such action. The writ shall be served in'the manner prescribed by law, except the summons in certiorari shall be served as provided in Rule 1.08O(b). See: Rule 1.630(d). . The original complaint is filed with the coUJ'i either before service on opposing counselor immediately thereafter. Which most likely will be the same attorney who failed to provide the documents requested. See: Rule 1.080(d). . When the trial court receives a petition for writ of mandamus, its initial task is assessing the petition to . determine . whether it is facially sufficient. See: Holcomb v. FDOC, 609 So.2d 751 (Fla. lit DCA 1992). If it is not facially sufficient, the court may dismiss the petition. Id. OtherWise, if the petition states a legally sufficient claim, the court must issue an alternative writ of mandamus ordering the respondent to show cause why the writ should not be granted. See: Rule 1.630(dX3) and Holcomb, supra at 753. . This show cause order will set forth a date for respondent to file a response. This response must comply with Rule 1.140. The show cause order should .give the petitioner a set amount of days to reply. If no time is set by the court for a' reply, the petitioner should.file a reply within 20 calendar days from the. service of the response. See: Rule 1.140. However, a reply is optional. The petitioner should also' keep in mind that in civil law, when a party is ordered to respond within the designated date, anyt,hing filed pursuant to such an order must be filed by designated date~ Five days rule· provided for service by· mail for civil cases does not 8 . apply. See: Chiapelli v. Atkins,. 429 So.2d 852 (Fla. 4lb DCA 1983). Therefore, a party can move for an application for defauit under .Florida Rule of Civil Procedure 1.500(b), .if il response is not filed within the time set by the court order. This motion is serVed as any other motion. After the response and reply are filed or the time for filing expires, th~ court will issue a ruling. If the court denies the petition there are several options the prisoner can pursue. . Motion For Rehearing One option available is to file a motion for rehearing. Such remedy is sought via Rule 1.530(b) . and ml:lSt be served within 10 days after the filing of . the denial. The service of this motion ,will stay execution on the judgment Under Rule 1.550(a). A motion for rehearing is often' used to point out a material mistake in fact or law upon which the denial relies. Furthermore, a motion for rehearing may be necessary to get any objections into the record when the court dismisses the case.' For instance, if the court dismissed your case before you had the opportunity to be heard in opposition to a motion to dismiss. Appealing The Denial An appeal in this type of case is governed by Florida Rules of Appellate Procedure 9.110. Jurisdiction of the court under this rule shall be invoked by filing two copies of a· notice, accompanied by filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition ofthe order • to be reviewed. See: Rule 9.l10(b). . If the prisoner is proceeding insolven~ he must file a motion for insolvency and attach a six-month bank statement. Some courts may also require this when filing the initial petition in the trial court. To request this printout, the prisoner must fill out and affidavit of, 'insolv~ncy,attach it to an Inmate Request form, and address it to the Inmate TrUst Fund. The notice of appeal shall be substantially in the form prescribed by Rule 9.900(a). The caption shall contain the name of the lower tribunal, the name and designation of at least one party on each side, and the case number in the lower tribunal. Further, the notice shall contain the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed. . See: Rule 9.110(d). . Moreover, this rule provides that in criminal cases, a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice , together with any order entered on a timely motion Florida P,rison Legal Perspe~tives postponing rendition of the order or orders appealed. [d. Within SO days of filing the notice. the clerk shall prepare the record prescribed by Rule 9.200 and serve copies of the index on all parties. Within 110 days of filing the notice, the c~erk' shall transmit the record to the court. See: Rule 9.11O(e). The initial brief shan be served within 70 days of filing the notice. The. prisoner shall file the original and three copies with the DCA and a copy to the opposing party. Additional briefs shall' be served as prescribed by Rule 9.210. See: Rule 9.110(t). Rule 9.210(t) requires the appellee/respondent to serve an answer brief within 20 days after service of the initial brief; the reply brief, if any, shall be served within 20 days after service of the answer brief. Agai~ the reply brief is optional. Thereafter, the DCA will issue a ruling. I hope this article has provid~d useful infonnation to those who find themselves in this predicament. - T y.p I N G . SERV'ICE' Computer - Typewriter AL L K I'M D S 0 F T YP J NG Including but not limited to: Legal Briefs, Newsletters, Ar1Ictes, , Books, Manuscripts, Text DocumentS, Database; ChaRs, Forms, Ayers, envelops, ETC. Black I Color Printing & Copying ~p~lal ~at~ for pri.on~r8 FOR A FREE PRICE UST AND MORE INFORMAllON CONTACT: . , LET MY FINGERS . DO YOUR TYPING Sandra Z. Thomas PO Box 4178 Winter Park, FL 32793-4178' Phon.:407~7~563 9 Florida Prison Legal Perspectives am Dear FPLP: I currently serving a 15 year sentence for an alleged "Sale.or Delivery of Cocaine". I have a couple of issues to inform you about that I believ~ would be of extreme interest to your readers, particularly those who've been sentenced to prison by the Gity of Jacksonville. Fist, section 944.17 (5) Florida Statutes, commands and authorizes the DOC to refuse to admit a person (or prisoner) into the State Correctional system unless the commitment form, judgnient and sentepce forms, are "complete." In literally hundreds (and more likely thousands) of cases, the DOC has ignored this pertinent statute, and .have allowed persons into the state prison systems on uniform CQmmitment to Custody forms that have not been signed by the Sentencing Judge nor the Clerk of Court,· and nether bears the official seal of the Circuit Court or that ofthe clerk. See section 28.071 Fla. Stat., and Sykes v. State, 947 So.2d 1133 (Fla. .I" DCA 2008) . As such, we prisonerS are being iIIegaJly detained, and through chapter-33 F.A.C., are being forced into labor and deprived ofother Constitution Liberties without lawful process. Per the 1st DCA's ruling in Sykes; and the Florida Supreme Courts' rejection ofjurisdiction to review that decision, I am currently awaiting the DOC's response to the 91b Judicial Circuit Courts' order to the DOC to "Show Cause" why.relief should not be granted. Their response was due by July 71b, 2008, however, as of the end of July, DOC has yet to respond. As an advocate for prisoner's rights, the FPLP should be inte!ested in the outcome ~f this case (case # 02-2008-CA-000083, Tony Howard v. Melody L. Flores, Warden, Baker C/). State agencies must obey the legislated laws and Constitutions of the United States and Florida, and their own Rules. See section 603.002 (2)(c).Chapter 33 F.A.C.. Another matter of grave importance is the fact that many prisoners have been indicted or had information's signed by bogus and unregistered employees of respective State Attorney's Offices, and had the cases prosecuted by them to trials and plea bargains). Not only have these attorneys failed to take and file oaths of loyalty, but they have no written Constitutional oaths ofoffice, written appointments by the State Attorney, and no sworn designations to file or sign information's registered or transmitted to the office of the Secretary of State, as required by Section 27.181 (I) and (2) Florida Statutes.; TH BCI . . Dear FPLP: I am handicapped and ~erving time in Florida. I have prostrate cancer and Hepatitis C and haven't had any medical treatment yet. They have known for over a year but have not done anything. I'm a disabled Vet with no prior record I have been trying to get transferred to work release so I can be furlough to the VA. We are not fed the right diet for diabetics; they say they don't have the money. It won't cost DOC anything to let me· go to the VA. I was moved back to WCI in September, they drug me out of my wheel chair and drug me up a set of steel Steps em my bac~ to a prison bus because they said they didn't have a handicapped van. ML WCI ' . Dear FPLP: Thank you for replying about the property room holding on to my issues until I am finished with disciplinary confinement. The o~ly reason I reCeived the Mar/Apr issue was that the legal mail lady directly delivered it to me. Although the property personnel state I am not allowed magazines in disciplinary confinement, I am going to start the grievance process because although they consider it a magazine, I consider it a legal guide ·arid publication, ~d under~ chapter 33-602.222, I am allowed legal material, this is just another tactic they use to keep. me blinded.from what is going on with DOC. Keep up the Great Workl I never lay down, I put pen t6 paper. Now even the courts are trying to ban me from filing mandamus to challenge DR's under the Vexacious Litigant filing law; people filing in the Second Judicial Circuit which is bias toward inmate grievance appeals should file in the third Circuit or other Circuit. Once again keep up the Great Work! WMCCCI . .Letters to the Editor from FPLAO members may be printed in this section. The identity ojleller writers will be by abbreviation, unless otherwise specified by the writer, jor protection against possible retaliation and to encourage freedom ojspeech All letters printed are suJqect to editingjor clarity and length All letters cannot be printed but are invitetl-Address letters to: Editors, FPLP, P.O. Box 1069, Marion, NC 28752. IfYour letter also concerns membership, membership renewal, address change, etc., please address that matter at the beginning of the letter to assist staff in processingyour mall. 10 I Florida ·Prison Legal Perspectives • .The following are summaries ofrecent state.andfederal cases that may be useful to or have a significant impact on Florida prisoners. Read.ers should always read the full opinion as published in the Florida Law WeeJc/y (Fla. L. WeeKly); Florida Law Weekly federal (Fla. L Weekly Federal); Southern Reporter 2d (So. 2d); Supreme CoUrt Reporter (S. Ct.); Federal Reporter 3d (F.3d); or the Federal Supplemenl2d (F.Supp. 2d), since these. summaries are/or general information only.· Supreme Court of Florida Lescber v. Flo. Dep't of Highway Safety and Motor Vehicles. 33 Fla. L. Weekly 8434 (Fla. 7/3/08) . In this case. the' Florida Supreme Court has opined that the amendment to section 322.271 (4). Fla.' Stat.. which eliminated hardship driver's licenses that went into effect July 1, 2003. does not violate the prohibition against ex post facto laws as to persons who could have applied for such licenses before the amendment became effective. Wyche v. State. 33 Fla. L. Weekly S509 (Fla. 7/1 0/08) The Florida Supreme Court in Earl Wyche's case has determined that when a defendant is told by authorities that the DNA saliva swabs. that's being attempted to be taken from defendant, are to be used in an investigation of some fictitious crime named, [intentional deCeption to obtain the" DNA] does "not make the defendant's consent to the swabs coerced.... This review was brought due to the conflicting ~pinions between Wyche v. State, '906 So.2a 1142 (Fla. lit DCA 2005) and State v. McCord, 833 So.2d 828 (Fla. 4th DCA 2002).. The review approved the First District's opinion in Wyche that affmned the denial of Wyche's motion to suppress swabs taken by deception. and it showed the Fourth District's decision in McCord to be . 4istinguisbed where the granting of a ' motion to suppress swabs taken by deception was affirmed. executing the capias; the lower court (NOTE: Although Justice J." Bell concurred with the majority opinion, denied the motion. he .stated that it was with serious Applicable statute' of limitations is resen:ations because he was thilt wh~ch was in effect at the time disturbed by the level of intentional · of the-· incident giving, rise to the . police misrepresentation. (Why criminal charges. See:· State v. Mack, concur then?) His "hope is that law 637 So:2d 18, 19 (Fla. 4th DCA enforcement will resist .the · 1994). The 1996 statute temptation to interpret the decision limitations that pertain to Soto's case requires prosecution to commence as an endorsement of such eJeception as acceptable." (...?) However•. within three years' after the felony Justices J. Anstead. Pariente. and JJ. was committed. See section 775.15 Lewis dissented with very Itmgthy (2Xb), Florida Stat~tes (Supp. 1996). opinions (which should be reviewed) That section defines commencement and concurred with each others of prosecution when either an dissenting opinion] indictment or information is filed. provided the capias, summons. or other process issued on such .indictment or information is executed District Courts of Appea~ . without unreasonable delay. In determining what is reasonable, Soto v. State. 33 Fla. L. Weekly th to locate the defendant after inability D1526 (Fla. 4 DCA 6/11/08) · diligent search or. the defendant's Reinaldo Soto appealed a lower absence from the" state shall be court's denial of his motion to considered. dismiss charges based on the It was opined by the appellate· expiration of the statute of • court that the state in Soto's case did . "limitations. not make diligent etJ'orts to locate Information was filed by the state Soto and the capias was not executed Dec.: 6. 1996~that charged Soto with without unreasonable delay. Because a third degree felony of aggravated the state did not offer any evidence assault, which allegedly occurred were made to locate that attempts Nov. IS. 1996. Subsequent Soto's Soto an<,l execute the capias. it failed arrest and reiease.· a notice of to meet its burden under former arraignment was sent to him by mail. section 775.15 (5). See: Mack, [d., at Soto, however. failed to appear and . 19-20... capias was issued that same day. Jan. Soto's case was reversed and 16, 1997. Soto was arrested "later in remanded with directions that the Texas in 2006 and brought to Florida charge be dismissed and the sentence on the outstanding 1997 warrant. In to be ·vacated. October of 2006, Soto was arraigned for the 1996 offense. Subsequent [NOTE: The legislature Soto's motion to dismiss on the amended section subsequently ground that the three-year limitations 775.15 (5). so that a "[P]roSecUtiOD period had run and the state had on a charge on which the defendant exercised an unreasonable delay in 11 of Florida Prison Legal Perspectives has previously 'been arrested or served with a summons is commenced by the, filing of an indictment, information, or other charging document." See: Ch. 97-90, section I, at 514, Laws ofFlorida.] . Apprendi/Blakely would apply to any re-sentencing. that took place after Apprendi' came doWn, even resentencings that took place before for determination of basic. gain-time forfeited up to the point of Burks' release to parole under the form~la in effect in'1981. Blakely was decided. . It was opined,' regarding the notation made ,in ,MonnaI's case about the Isaac decision not being superseded or disproved by the Florida Supreme Court, Isaac still cQntrols, not as law of the case,bul as governing precedent within the First District. Barrett v. State, 33 Fla. L. Weekly D1657 (Fla. 4th DCA 6/25/08) Nunes v. State, 33 Fla. L. Weekly The appellate couit had 01503 (Fla. 2d DCA 6/11108) previously granted Ricky Barrett's The appellate court in Garrett motion for clarification in its original Nunes' case opined that the trial opinion at 33 Fla. L. Weekly court erred in denying Nunes' motion 011261, and then substituted a to suppress statements Nunes made correct~ opinion !or that original to detectives and assistant state one. attorney during plea negotiations. [~Apprendi v. New Jersey, 530 U.S. Barrett was convicted of armed It was opined' on appeal lItat 466 (2000); Blakely \I. Washington, burglary however, in the appellate Nunes' statements were inadmissible 542 U.S. 296 (2004).] court's corrected opinion, it opintd as statements .made 'during plea the evidence against him .did not negotiations because Nunes made the Burks v. McNeil, 33 Fla. L. Weekly support a finding that he was armed DI576 (Fla. III DCA 6/16/08) With subjective statements ~iJe committing the burglary. It expectation to negotiate a plea and he Reginald Burks sought an appeal was found that the evidence only reasonably expected that, those of ari order that denied his habeas showed that Barrett broke into a statements were the beginning of a petition that challenged D.O.Co's structure for the purpose of taking plea, bargaining process, given the calculation of his sentence. something of value, where he found totality ofobjective circumstances in In the lower court, Burks a safe, loaded it into his vehicle, and the case. . contended that D.O.C. violated the ex hauled it away from the scene. It was It was further noted that neither post facto clause when it apl?lied the only after Barrett opened the safe Crim. Procedure Rule 3 .172 (i), nor 1983 version of section ~44.275, with a crowbar did he find a loaded Florida Statutes, to his offense section 90Al 0, Florida Statutes, gun inside of it. require that ~. plea bargin 'be' committed in 1981. D.O.Co's use of It was noted that it has been completed or that 8- written that statute version resulted, in a established in Florida law that felony agreement be sigried before greater penalty upon Burks' crimes of ,possession of forbidden negotiations can be excludlfd from revocation of parole. substances or things require proof of' evidence. . On appeal, it was noted that the guilty knowledge of the defendant Nunes' case was reversed and that he is in possession of such items.. appellate court has previously held that the use of the revised 1983 remanded for further proc~dings. See: Washington \I. Stale, 813 So.2d version of section 944.275 for an 59 (Fla.' 2002); Scali v. State, 808 Monnar v. State, 33 Fla. L. Weekly earlier offense date is So.2d 166 (Fla. 2002); Chicane \I. 01575 (Fla. III DCA 6/16/08) disadvantageous to the prisoner State, 684 So.2d 736 (Fla. 1996); and which violated the ex post fact The First District Court of Appe8I Reynolds v. State, III So.2d 285 clause. The gain-time statute in effect in Maynor E. Monnar's case, upon (Fla. 1926). Furthermore, nothing in at . the ti,me of Burks' offense section 810.02 (2)(b), Florida remand from. the Florida Supreme provided for basic gain-time to be . Statutes, suggests that the Legislature Court, noted that while MonnaI's case was being reviewed .by the earned under the 3-6-9 formula on a meant to dispense with the monthiy basis, rather than the 10 'higher court regarding issues presumptive element of knowledge. . concerning the Apprendi/Blakely days a month under the 1983 versfon. There was no evidence presented ·decisionS, the Fla. Supreme Court It was further noted that a review of ,in Barrett's case. that' indicated he the rule in effect on the date ot: did not supersede or disprove the became' aware of the presence of a offense, Florida Administrative Code First District's decision ii held in gun on the premises where the burglary was committed. . Isaac v. State, 911 ~0.2d 813 (Fla. 111 Rule 33-11.045, indicated that gainDCA 2005). time was to be awarded or withheld Accordingly, Barrett's case was In Isaac,' the appellate' court monthly, rather than the lump sum reversed and remanded for the trial opined' that aithough award under the current version of' court to reduce his conviction for the rule. ' ApprendJIBlakely was decided after armed burglary to burglary of a Isaac's conviction and original' Accordingly, Burks' petition was structure. sentence were final, . granted and the case was remanded 12 Florida Prison Legal Penpectives Under Florida Rule of Criminal against Appellees in their individual Balmori v. State. 33 Fla. L. Weekly Procedure 3.850 (d), a defendant capacity. See: Hall v. Officer Knipp, D1669 (Fla. 2d DCA 6/21/08) Fla. Dep't o/Carr., 982 So.2d 1196 Jose Balmori appealed. the denial. who alleges ineffective assistance of (Fla. lit DCA 2008) (where a counsel is entitled to an evidentillJy in part, and summllJy denial. in part, dismissal order was reversed as to hearing on those specific claims and of his rule 3.850 motion that raised the correctional officer because the facts ;which are not Conclusively ~n claims of ineffective assistance of appellant's allegation was sufficient . rebutted by the record and which counsel. . to state cause of action against the demonstrate a deficiency in trial The apPellate court affirmed the counsel's performance that officer in his i~dividual capacity); denial of the eight claims Balmori Medberry l'. McCallister. 937 So.2d was given an evidentiary hearing. • prejudiced the outcome of the trial. 808.814 (Fla. I"'DCA 2006)(where See: Floyd v. State. 808 So.2d 175. however. it.review~d and addressed the :dismissal order was reversed 182 (Fla. 2002). the summary demal of the two because the appellant's pleadings' The record that was before the remaining claims of ineffective tracked all of the pertinent language appellate court in Balmori's ~e assistance ofcounsel. in section 768.28 (9). Florida Balmori had been convicted of failed to rebut· Balmori's two daims attempted trafficking in heroin. His . that were summarily denied. What Statutes. allowing the appellees, two was shown in the record' was that correctional officers, to be sued and only defense was not knowing the Balmori was the only witness to held personally liable). drugs were in his vehicle until he As a result, the. appellate court tQstify in his defense. At trial. the was arrested and his vehicle was searched. Balmori was the' only state 'had to prove beyond a agreed with Hall that the lower court reasonable doubt that Balmori was erred in dismissing his civil witness in his defense. In. pertinent complaint. It was also agreed that the "knowingly in actual or constructive part of the summarily denied claims. possession" ,of the heroin found in lower court erred in prohibiting Balmori claimed he had informed.his future filings pf pro' se actions his car. See: section 893.135 counsel that because of the items in (l){cXI), Florida Statutes. (2002), without givIng notice or issuing a his vehicle, that were there on a daily' (emphasis added). Because Balmori's show cause order. See: Petty v. State, basis (what the .appellate court called knowlecJge of the heroin's presence 926 So.2d 445 (Fla. lSI DCA 2006); a "messy car ~efePse"), he had no and Jackson v. Parkhouse. 826 So.2d was the· primllJy disputed issue at knowledge of the drugs in the car. 'trial, his credibility with the jury was 478.479 (Fla. 111 DCA 2002).. Balmori further explained to counsel Hall's case was reversed' and essential to hi's defense. that his car had sat at a automobile' The appellate court concluded remanded for further proceedings. repair shop for a week prior to his . that, taking Balmori's claims as we trip to Miami and subsequent arrest without any rebutting record. Antunes,:"Salgado v. State, 33 Fla. L. on his return. Counsel was informed Balmori did demonstrate ineffective Weekly 01863 (Fla. 2d DCA of witnesses at the repair shop that assistance ofcounsel. 7/30/08) could have testified that his car was Accordingly, the summarily, Carlos Antunes-Salgado there and numerous individuals, denied claims of Balmori's rule 3.850 including an informant that worked (Salgado) appealed his convictions of motion were reversed and remanded at the shop. had access to the car. trafficking in cocaine and conspiracy for the lower court to either attach Balmori gave a work order form to to traffic in cocaine. In' the .appellate court, Salgado record that conclusively refutes the his counsel. that showed dates and c]aims~or if· not, .it .shall hold an argued that although the issue he times during which his car was at the evidentiary hearing on those claims. shop,· and explained that the brought foith' was not preserved for appellate review. his defense counsel employees around that shop. including the confidential informant, Hall v. Knight. 33 Fla. L. Weekly' was ineffective for conceding the D1802 (Fla. lit DCA 7/17/08) . admissibility of his codefendants' could have placed or thrown the Wendall Hall. a Florida State heroin in his car without his statements. which were the sole evidence supporting the conspiracy prisoner•. appealed an onter,that knowledge. charge. dismissed his civil complaint against However. Balmori alleged that At trial, although Salgadds Captain Knight and Sergeant Ruddy, despite all the information he gave to two correctional officers (Appellees). codefendants were not present, the his counsel. . that would have state sought to prove the existence of bolstered his credibility and . and that prohibited him from tiling future pro se actions. conspiracy through the post-arrest supported his claim of no knowledge and post-Miranda statements of the HaJJ argued on appeal that the of the heroin's presence, counsel codefendants as related by the police Washington' County Circuit Court failed to investigate any of that erred in dismissing his complaint for officer who took their statements. information for his defense. the failure to state a cause of action Salgado's counsel failed to object to 13 Florida Prison Legal Perspectives evidence to the conspiracy charge. Davalos lI. State, 33 Fla. L. Weekly this admission and. in fact. counsel Also, there were no excuses of any 01869 (Fla. 3d DCA 7/30/08) stated that he believed the statements were admissible. under section Conceivable tactical reason on part of George Davalos appealed the. 90.803 (J8)(e), Florida Statutes the, ineffective assistance of counsel denial of his motion to withdraw his (2005). plea after sentencing, or, in the presented. . alternative, mitigate his sentence. Therefore, Salgado's case was Ineffective assistance of counsel is found when counsel's performance reversed and remanded for a new In the lower court. Davalos was fall outside the range .of reasonable trial on all charges. offered a plea deal by the state, professional assistance ,and when w~ich he. rejected and then entered there is a reasonable probability thaf Joseph v. State, 33 Fla. L. Weekly· an open plea of guilty. Subsequently, 01869 (Fla: lilt DCA 7/30/08) the results of the proceeding would the sentencing judg9 sentenced Davalos to a sentence three times have been different but for the The trial court in Ronald A. . inadequate performance. See: Joseph's case had sua sponte declared more than what the state had offered. a mistrial without Joseph's consent Strickland lI. Washington. 466 U.S. On appeal. Davalos argued that 668,688,694 (1984). and absent a manifest necessity. his sentence was a product ofjudicial vindictiveness. The state responded . . Although such claims may not be TI,le appellate court noted that raised· ,on direct appeal, see, e.g., when a jury has been discharged that vindictive "is a term of art which expresses the legal effect of a given without Bruno lI. State, 807 So.2d S5, 63 consent of the defendant and . . (Fla. 2001), "appellate. courts make without. a manifest necessity, the ·course of action, and does not imply an exception to· this rule when the any personal or subjective animosity discharge is the equivalent' of an between the. court and the ineffectiveness is obvious oli the face acquittal, and retrial is prohibited. defendant." as the· state impli~ of of the appellate record, the prejudice See: United States v. Jom, 400 U.S. caused by the conduct is 470 S84 (1971). Also,' defendant's Davalos argument. The state cited silence or failure to object to an indisputable, and a tactical Longley v. State, 901'So.2d 925, 928 n. S (Fla. Sib DCA 2005), to support illegal discharge of a jury does not explanation for the conduct is their response. ,. constitute consent to a declaration of inconceivable." Corzo v. State, 806 The appellate court however, So.2d 642, 64S (Fla. 2d DCA 2002). mistrial and it does not waive a defendant's constitutional protection opined that "a totality of The appellate court found that. against double jeopardy. See: circumstances' review [is] more contrary to Salgado's defense appropriate to· determine if the counsel's belief, long standing Spaziano v. Slate, 429 So.2d 1344" defendant's constitutional right to 1346 (Fla. 2d DCA 1983). Further, Florida case law holds that due process was violated by the "Manifest.necessity arises because of statements made after the crime and some misfortune which, although !he ' imposition of an increased sentence do not "further" the conspiracy are fault of neither party, renders after unsuccessful plea negotiations." inadmissible under section 90.803 continuation 'of the trial impossible." [d. . at 928. 'Also see, e.g., Wilson v. (18Xe). See: Brooks v. State, 787 State, 84S So.2d 142, ISS (Fla. So.2d 765, 772 (Fla. 2001). ' Cohens· lI. Elwell, 600 So.2d1224, 2003). . 1225 (Fla. I" DCA 1992). There· was no question in It was concluded in Davalos' case _ It was opined in Joseph's appeal Salgado'S case that codefendants' that the trial court's denial of the that the trial court could have statements occurred after the considered continuing the' original motion to withdraw pleas constituted ~onspiracy was over and did nothing proceeding, or, possibly some other. an abuse of its discretion and, in to "further" the conspiracy. effect, violated Davalos' right to due alternative; and to allow time for Therefore, it was opined that defense investigations to take place on behalf . process. counsel was ineffective for As a result. the order denying the conceding admissibilitY on that'basis, . of Joseph's defense. See: C.A.K lI. plea withdraw motion was reversed State, 661 So.2d 365 (Fla. 2d DCA and it was apparent on the face ofthe 1995). However, the trial court failed . and the case was remanded with appellate reCord. Further, it was instructions for Davalos to be given a to reach such cor,siderations. Thus, it opined that the statements were new sentencing hearing before a was concluded that the mistrial was inadmissible under Crawford lI. different judge. unwarranted and Joseph's subsequent Washington, S41 U.S. 36 (2004) (where it prohibits the admission of .. retrial was barred. Michel v. State, 33 Fla. L. Weekly Accordingly, Joseph's case was "testimonial" hearsay because it 01881 (Fla. 41b DCA 7/30/08) reversed and remanded with violates the Confrontational Clause) Judith Michel was convicted of instructions to discharge Joseph from [d. at S1. aggravated battery, after a jury trial, the charges. . It was. also concluded that which arOse out of a physical Salgado was prejudiced because the statements were the state's only 14 Florida Prison Legal Perspectives altercation that occurred between her and the victim. At trial. Mitchel testified that she believed the victim was going to use a .1cn!fe ,on her during the altercation . and. at which time. she grabbed an "eyebrow razor" and told the victim" you better let me go." then. subsequently. cut the victim. On appeal from her conviction. the appellate court deten.nined that Michel's counsel was shown to be ineffective on the face of the appellate record for failing to request instructions on justifiable use of nondeadly fon:e. where Michel's only defense was self-defense. Accordingly. Michel's conviction was reversed and her case was remanded for a new trial. _ . Advertise in FPLP . Reach new clients or customers th~ough advertising in Florida Prison Legal Perspectives. To·obtain . . . advertising and rate Information write or email us at FPLP Attn: Advertising P.O. Box 1069 Marion, NC 28752 Or fplp@aol.com David W. Collins, Attorney at Law o Former state prosecutor with more than 20 years of criminal law experience "AV" rated by Martindale-Hubbell Bar register of Preeminent Lawyers Your voice in Tallahassee representing prisoners in .all areas of post-conviction relief: . Appeals Plea Bargain Rights . Sentencing and Scoresheet Errors 3.800 Mptions Green, Tripp, Karchesky, Beggs cases 3.850 Motions Stat~ and Federal Habeas Corpus Jail-time Credit Is~es Writs of Mandamus Gain-time Eligibility Issues Clemency Habitualization Issues Probation Revocation Issues Write me today about your case! David W. Collins, Esquire P.O. Box 541 Monticello. FL 32345 '(850) 997-8111 "The hiring ofa lawyer is an important decision that should not be l1ased solely upon advertisements. Before you deCide, . ask me to send you free written Infonnation about my qualifications and experience.~· 15 Florida Prison Legal Perspectives Loren D. Rhoton 'Postconviction Attorney ,. • • • • • . , Direct Appeals Belated Appeals. Rule 3.850.Motioris Sentence" Corrections 'N~w Trials' Federal. Habeas Corpus Petitions 412 East Madison Street, Suite 1111 . Tampa, Florida 33602' (813) 226-3138 Fax (813) 221-2182 Email: ·Iorenrhoton@rhotonpostconviction.com Website: www.rhotonpostconviction.com The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you dec~de, ask us to ~nd you free written information about our qualifications. BUY T.HE' 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 ~xperience, case citations, and references to the relevant rules ofprocedure are provided. This book is specifically directed toward those pursuing postconvietion relief. a To order, send $20.00 in the fonn of money order, cashier's check or inmate bank check (no stamps, cash personal checks please) to the address above, or ., . order online at www.rhotonpostconviction.com. or 16 .. Florida Prison Legal Penpectives POST CONVICTION CORNER .by Loren RhotoD. Esq. An important consideration for any person accused of a criminal offense is the question of whether or not to testify at trial. Frequently the accused must evaluate whether there are any facts which the state will be able to use to impeach him if he decides to testify at trial.., One of the most common forms of impeachment for criminal defendants is if the defendant has previous convictions for either a felony or a crime involving dishonesty or false statement (even if it is a misde~eanor). It is not uncommon for an accused to forego the right to testify in ord~r to avoid having the jury hear about prior,convictions. But, if a defendant . does decide to testify and let the jury hear about prior convictions, the exposure.of said convictions $hould be limited to the purposes of impeachment. Ifdefemse counsel does not handle the impeachmentprocess properly and allows the state to get into the specific facts ofthe prior conv~ctions, this may properly be the basis a Claim of ineffective assistance ofcounsel. Florida Statutes §90.610(1) provides that a party may attack the credibility of any witness, including an accused, by eviden~e that the witness has been. convicted ofa crime if$e crime was punishable by death or,imprisoIUJ)ent in excess of 1 year under the law under which the witness was convicted, or if the crime. involved dishonesty or a false statement regardle~s ofthe punishment. If a criminal defendant's testimony is to be impeached with prior convictions, the. proper procedure is for the prosecutor to ask wh~ther the defen~t has ever been convicted of felony or crime irivolving dishonesty or false statement and how many times the defendant has been so conyicted. Jackson'v. State, 570 So.2d 1388 (Fla. pt DCA 1990). Unless the defendant's answers to those two questions . are untruthful, no further inquiry'may be made into the speclfics ofthe rd Convictions. 'McFadden v.. State, 732 So.2d 412 (Fla. 3 DCA 1999) [it . is improper to introduce the specifics ofthe prior convictions]; Rodriguez v. State, 761 So.2d 381 (Fla. 2nd DCA 2000) [when the witne~s admits his convictions, the trial court errs by allowing the State to question the witness 'about the specific convictions]; Hicks v..$tate, 666 So.2d 1021 (Fla. 4 th DCA ~996) lunless the witness lie~ about his background, the jury is not to be advised of the specific nature ofthe offense, only that it involved a felony or a crime involving dishonesty or false statement]. The failure of defense counsel to object to improper prosecutorial questions regarding prior convictions can amount to ineffective assistance ~f counsel which prejudices the defendant's right to a fair .. of 17 Florida Prison Legal Penpectives trial. Rodriguez v. State, 761 So.2dJ81 (Fla. 2nd DCA 2000). . In Rodriguez v. State, 7.61 So.2d. 381 (Fla. 2nd DCA 2000), ~e defendant was convicted ofrobbery With a firearm and grand theft. At trial, the State introduced c~rcumstantial evidence which allegedly identified Rpdriguez as one of the individuals who robbed ajewelry store with two acco.~plices. Rodriguez' testified in his own defense. I!L at 382. During his testimony, the prosecutor repeatedly and improperly· cross-examined Rodriguez about the specifics of his prior convictions, thus iJ;lforming the jury that Rodriguez had previously been convicted of grand theft auto and robbery with a firearm. Id. Rodriguez's trial attorney failed to object to the improper cross-examination regarding Rodriguez's prior convictions. ML , .On appeal, the Rodriguez Court ruled that'defense counsel's failure to object to the improper questioning fell below any standard of reasonable professiomil assistance, and there is a reasonable probability that the results of the trial would have been different but for her inadequate performance. Id. In " reaching itS decision, the Rodriguez court pr{)vided: "[d]ue to the c~cuinstaJitial na~ .ofthe case, which turned on the State's identification evidence and ·Rodriguez's credibility as a witness, we must reverse Rodriguez's convictions and remand this case for a new trial because of prosecutorialmisconduct and ineffective assistance of counsel applU'ent on the face· ofthe record." ML Similarly, in Wright v. State, 446 So.2d 208 (Fla. 3rd DCA, 1984), defense counsel, ~n an effort to preempt the State's cross examination of the defendant regarding prior convictions, asked his client ifhe had ever been'convicted of"a : crime." The defendant answered that he had been convicted of five crimes. liLat 209. Wright's five convictions were all for misdemeanors which did not involve dishonesty or a false statementand thus, would not have been admissible in the first place. Id~ The Wright Court found that defense counsel's "overt act of in~odu~ingthe plainly harmful testimony was 'a serious and substantial deficiency measurably below that of competent counsel,'" llh at 210, quoting Knight v. state. 394 So.2d 997, 1001 (Fla. 1981). It was further found that Wright suffered significant prejudice as a result of counsel's detic~ency in light of: "(a) the extremely prejudicial nature ofthis type ofevidence, Roman v. State. 438 So:2d 481 (Fla. 3d DCA'1983); Cummings v. State. supra; vazguez y. State. 405 So.2d 177 (F1a. 34 DCA 1981), approved in part, quashed in part, 419 $0.2d 1088 (Fla. 1982); (b) the strong and effective emphasis placed upon it by the state attorney in att~cking the defendant's credibility in final argument; and (c) the closeness ofthe self-defense question..." \\!right at 210. It was thus determined that there was a likelihood that the deficient conduct affected the outcome ofthe court proceedings. Wright at 210. 18 Florida Prison Legal Penpectives I The right ofan accused to testify at trial is one of~e fundamental due process rights. The effect ofan accused's right to testify should not be diminished by ineffectiveness on the part ofdefense couns'el in allowing the juiy to hear either improper impeachment with prior offenses which do not qualify ·for 'impeachment or by allowing,the state to improperly cross-examine the accused about the specifics of prior convictIons. If d~fense counsel is deficient ~ litniting the , information the jury hears about prior convictions, it can be detrimental to the defense and may qualify as ineffectivenes,s ofcounsel sufficient to justify vacating the judgment. . .. Loren Rh%n is a member in good starUJing with the Florida Bar and a member ofthe Florida Bar Appel/ate Practice Section. Mr. Rhoton practices almosi exclusively in the postconviction/appellate , area ofthe law. both at the State and Federal Level. He currently is 'appointed by the Florida Supreme Court to the Florida Criminal Court Steering Committee. Subcommittee on Post-Conviction,Relie.f. He has assisted hundred$ofincarceratedperso~ with their cases and has numerous written appel/ate opinions. tIl ' Florida Prison' Legal Perspectives I .• D.IL GRIEVANCES/APPEALS AND .JUDICIA.L REMEDIES ny PAW\MERlUmA And HOWARD RICHMOND Part Two Continued • THE DISCIPLINARY PROCESS Disciplinary Team And Hearing Officer, 33-601.306 The DR hearing must be conducted by impartial staffmembers. A person shall not serve as it hearing officer or as a member of the disciplinary team, or participate in the deliberation when they are; (a) A Witness or the person who wrote the DR; (b) The investigating officer: (c) The person charged with review of the results ofthe disCiplinary hearing. The bearing officer shall hear all DR ~ designated as minor. At any time before the plea the inmate may request the case be referred to the disciplinary team. (601.302 (12) defines minor.violation). . The disciplinary team shall hear disciplinary reports designated as major. (601.302 (11) defmes m~iur violation). . . Due proCess is violated when any oftbe above described perSOns are also a member of tile disciplinary team, this infringes upon an inmatek entitlement to an impartial disciplinary fact-finder. Bitman y. FDOC. 662 So.2d 1030 (FIa. 1'1 DCA 1995). Mariah v. Moore. 765 So.2d 929 (Fla. 151 DCA 2000) (prejudging evidence). Some further examples ofblQs are recited in Wade v. Farley. 869 F. ~upp 136~, 1376 (N.D.lnd. 1994). all Disdplinary.Hearings 33-601.307 No hearing shall commence prior to 24 hours following the delivery of the. charges except when the inmate·s. release date does not allow time for such notice or the inm8tc waives the 24-hoUT period. PreVious F.D.O.C rules required that the disciplinary hearing be conducted within 7 days from when the report was written. That rule no longer exists. although Administrative Confinement Ride 33-602.220 (3) (a) stales that when discipliDaly charges are pending the h..-ngth of time in AC sbaD Dot exceed 7 working days wtless ler authorizes an extension of 5 worldng days. . The disciplinary team or bearing officer shall provide an explanation in the basis of findings section of Form DC 6-I 120 (24 HourlRefusal to Appear Waiver) whenever the ",aiver process is utilized. The inmate charged shall be present at the disciplinary bearing unless a confirmed medical condition ~ents the inm8te from attending or ~e.inmate demonstrates disruptive behavior. Battle v. Barton. 970.F.2d 179 (11 Cir. 1992) (right to attend a prison disciplinary hearing is one of·the essential due process protecti9ns 'afforded by the Fourteenth Amendment). . When an inmate waives the right to be present or refuse to be present at the bearing, the inmate may not submit a written closing statement to the disciplin8J)' te8m or hearing officer in 'place of the oralcJosing.statement permitted by 33601)07 (I,) (g). The inmate may only make an oral closing statement concerninB the ilifraction. It the inmate refused. to plea, it shall be treated as a not guilty plea A "no contest" plea shall be treated as a guilty plea. The hearing officer or disciplinary team member sbalJ read the charge, ask the inmate if the charge is understood. explain the range of penalties that could be Unposed if there is a finding of guilt and ask whether staff assistance is required or· needed for the hearing. lbe hearing o.fficer or disciplinary team member shall read the statement of facts and the inmate sh~J be asked to plea. Ifthe inmate pleads "guilty" no further evidence needs to be heard. lfthe inmate pleads'''not guilty" evidence is to be presented, including wi~ess statement ·fonns. If evidence is not revealed to the inmate, the reason(s) shall be documented in the comment sections of either the Witness Disposition Fonn, the OocumentaJylPbysical Evidence Fonn or the Videotape/Audiotape Evidence Fonn. Qsterback v. Singletmy. 679 So.2d 43 (1- DCA 1996); Vaughan v, Singletaly. 729 So.2d 411 (FIB. 1" DCA 1999). . . The hearing officer or chainnan of the disciplinaJy team· bas the authority to require that other supporting. documents be presented; the employee who wrote the DR, the investigating officer, or any witnesses, ~ at the hearing to clarify infonnabon or facts related to the DR; and that further investigation be conducted, or evidence presented, or statements presented of unavail~le witnesses. Florida Prison· Legal Perspectives The testimony of witnesses requested by the charged inmate shall be presented at the hearing througJi the written . Failure to sign and complete the witness disposition fo~. during th~ inve~gation co!lstitutes waiver to call witnesses either live or by written statement. Listing witnesses names on. any other document will Dot result in their testimony being considered. . _ The inmate may request additional witnesses who were not listed on the witness request fonn at the hearing where the expected testimony proffered by the charged inmate indicates that the testimony is ~a1, relevant, and nonrepetitive and that exttaordinmy circumstances prevented naming the witness during the investigation. In no case shall n witness be called (live or written statement) if the testimony would Pc ~levant, _aterial or repetitive. • Signed witness statements used as testimony shall be read at the hearing. Where a witness statement is not read the reason shaJl be recorded in the wimess disposition form. Mjtiah v. Moore, 765 So.2d ·929 (Fla. lit DCA 2000). . The only per~ns present during team deliberations shall be the team. empJoyees being trained, and others whom the warden. the chief of security. or the classification supervisor have authorized to be present and detennined these persons will n.ot disrupt the hearing and will benefit by observing the proceedings. Siebert v. Dugger. 595 So.2d IOlt'1 (FIa 1.:l1·DCA 1992). The original charge cannot be reduced by the discipljnmy team to what might he tenned a "lesser incl~dcd offense." Up to the point of announcing a decision to the inmate. the team or he8rlng officer may postpone ibe heariu'l The entire DR may be returned for further review, investigation or C?Orrection. If further review suggests a different charge shouJd have been indicated or that additions, deletions or change,; should be made in the statement offhcts then the originator shall rewrite the DR, a copy of the new or corrected DR shall" be delivered to the inmate. and a new investigation conducted. J'he original DR sball not be processed. A notation of this occurr~ce shall be incorPorated in the findings ofthe team or hearing officer.. . The inmate shaJl be inforD!ed oCthe. final deCision of the team or hearing Qfficer mid the basis for that decision, Dsmyp v. Wainwright. 403 So.2d 569 (Fla. I" DCA 1981); Strong v, Wainwright. 38S So.2d 169 (Fla. lSI DCA J988). (entitled to be given a copy of the written statement ofevidence relied upon and the reasons for discipUnary action against . the inmate). witness Statement,· . Disciplinary Team, Hearing Officer Findings and Action 33-601.308·· . The diSciplinary team or hearing officer's findings shall enumerate the specific facts derived from the disciplinary repQrt, the disciplinary investigative report or the witness statements and what specific eVidence was used in the team's or hearing officer's conclusion; The team or hearing officer shall make one of the following findings: (a) Dismiss the cllarge. If the charged is dismissed the DR shall not be posted or placed in the inmate'file. :\ dismissal may occur dueto procedural errors, technical errors or duplication ofcharges. A dismissal is without prejudice lind the DR may be rewritten and reprocessed. . (b) Find the inmate not guilty. When this occurs the disciplinary report shall not be posted or placed in the inmate file. The inmate shaJJ be found not guilty when the facts do not support the charge. Stokes v. FDQC.. 948 So.2d 7S (Fla. 1at DCA 2007) (Inmate successfully grieved issue of whether DOC. erred in not obtaining a detennination by health care Wlff1ha1 conduct was not a suicide attempt as defined by RuJe 33-601.314, F. A C'~'s. 9-30 of penalty table sets fonh mteria for self-mutiJatiori~) IronicaJly, recent amendments to 33-601.314 (dated 5-18-(8) repealed 9-30 altogether. (c) Fin~ the im:nilte guilty. Ifthe inmate is found guilty the disqipl;inary team sbalI impose any or a combination of . actions listed in 33-601.308 (a) - (j). Applying AC time to DC $te is discretionarY. [Due process requires the DR worksheet· (Form DC 6-112E) to reflect all penalties' imposed as a result of the infraction especially where specific options are listed on the worksheet. See Sect 944.28 (2) (c), Florida Statutes. In ufditioD, for purposes of ex post facto see Britt v. Chiles. 704 So.2d 1046 (PIa 1997). A timely challenge in either . . , ' scenario couJd prevail. Following the decislon of the U.S. Sup~e C'.ourt in Superintendent v. Hill. 472 u.s. 44S. 457. lOS S.Ct. 276R (1985), Florida Courts have adopted the "som'e evidence" standard regarding prison disciplinflly proceedings. Newell \'. Mggm. 767 So.2d 1240(Fla. 1at DCA 2000). . In other words, regardless of favorable or exculpatory evidence in the record, a decision that's supported by the oostence of "some evidence" is sufficient to satisfY the standard. . Williams v. fountain, ,77. F.3d 372, 375 (11 th Cir. 1996). But see.walsh Y, Finn, 865 F, Supp 126 (S. D. N. Y. 1994) (cont:nuy evidence in the record undennined "some evidence').. lind, Chayis V. Rowe, 64~ F.2d 1287 (71h Cir. 198 I). . . With such a low standard (burden of proof) a guilty finding is imminent at the DR hearing stage. The couns bowever might take a different view if the record is unreliable ~ a whole.] 21 Florida Prison Legal Perspectives , [~orfeiture ofuneamed gain time shall be considered when the i~ate has not acCrued enough gain time to achien the desired corrective results. Penalties for multiple disciplinary actions should be· clearly stated in the basis of findings as to the current or consecutive requirements. Loss ofgain time shall not be concurrent with any other 10s.Ii ofgain time and shall be cumulative. Review and Final Action 33-601-309 TIle warden acts as th.e final reviewing and approving authority fOr all DR s in which the recommended pellaltj does not exceed a loss of more that 365 days loSs ofgain time. The regional director acts as the final reviewing authority for all DR's in which the recommended penalty exceed! 365 days loss of gain tUDe. The Warden or regional director shall approve, modify downward or disapprove the recommended disciplinaI) . action. The warden or regional' director shall approve. modify downward or disapprove the recommended discipJinRJ') action. The warden or regional director shall remand the DR to the hearing officer .or disciplinary team for rehearing. I new evidence or procedural error is discovered. ' . Rehearings. . 33-601.310 If an error is discovered at any time after an inmate has been found gwlty of a disciplinary iirnaction, the wardell the facility administrator ofa private facility, or the deputy director of institutions (classification) or designee is OOthOriUl to cause a rehearing to takt! place within 30 days of the discovery of the error or the receipt of a success~ grievance 0 appeal. The specific reasons shall be noted on the disciplinary Iqlort. A rehearing shall not be held foUowing a finding (1 "not guilty','. . The new investigation may incorporate those portions of the previous investigation that are not affect by the nee for the rehearing. No inmate is authorized to request a rehearing. Miscellaneous Provisions 33-601.311 This section pertains to Interstate Compact Cases, LTansfers and related matters that may be assOciated wilh Ih disciplinary action taken. No inmate has the right to request the expungment of a DR in conjunction with this subsection. Henderson, Crosby. 891 So.2d 1180 (Fla. 2nd DCA 2005). Rules 33-601.3 J2, 33-601.319 8D$l. 33-601.314 concern telephonic or video disciplinary hearings, fonos and Rul ofProhibited Conduct and Penalties for infractions respectively.. . I . In Conclusion . The foregoing analysis mainly covers the high ppints' of the disciplinary process. While keeping in mind a agency (F.D.O.C) must comply with its own rules, Buffa v. SingletaJy, 62 So.2d 885 (FIa. 1111 DCA 1995). ·it is wei . advised that anyone engaging. the process should review 33-601.301 through 33-601.314 to gather a reasonabl understanding of what's involved and the requirements prison officials must follow throughout the process. Most often prisonerS facing disciplinary action are trying to defend themselves from a confinement cell, which 1 very difficult. And the time to do so is often very liJriited. In order to present the best defense and/or preserve is~es thl may be critical.in the administrative appeal or later in court it is essential that you know .what the rules and laws are i connection with DR's so yon can properly raise any violations ofthem. Most often. ~e best and most effective challenge to a DR involve challenges alleging that FDOC rules were not followed in the process and/or. that established due proce! was not afforded. Therefore. the charged prisoner should immediately contact the law h'brary for a copy of the DR mt€ upon placement in confinement Also useful is to request other source materials that help explain what "due process" required. When requesting a copy ofthe rules from the library (Rules 33-601.301 through 33-601.314) also request 8 COil of Rights of Prisoners, 3il1 Ed. (MushJin), Volume 2, Chapter 9, "Disciplinary Proceedings." Also a copy of Plymel1 MQQm, 770· So.2d 242 (FIa. JII DCA 2000), which may be of great assistance in understanding the whole process I challenging disciplinary action. • . 22 Florida Prison Legal Perspectives Florida Prlsonerk' Legal Aid Organization Inc. BECOME A MEMBER· • I YES ! I wish to become a member of'Florida Prisoners' Legal Aid Organization. Inc. 4 1. Please Check ./ ODe: a a 3. Yo..r Name and Address (PL~SE --:::-:-Name Membership Renewal PRINT) ......;DC# _ New Membership Agency/Libnuy/lnstitution /Org/ 2. Select ./ Cattmory a SIS Family/AdvocatelIndividual Address CI SI GPrisoner City State Zip CI S30 AttomeyslProfessionals CI $60 Gov't AgencieslLibrarieslOrgsJetc! Email Address and lor Phone Number c:r Please make all checks dr :moncy orders payable to Florida Prisoners' Legal Aid Org.,lnc. Please complete the above fonn and send it along with the indicated membership dues to : FPLAO,lnc., P.O. 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PO Box 1069 Marion, NC 28752 VOLUME 14 ISSUE 5 SEPT/OCT 2008 ~ ,USA- 1* ' ...i- *