Florida Prison Legal
ISSN# I091-8094

VOLUME 6,ISSUE I

JANUARV-FEBRUARV 2000

LEGISLATORS COMPLAIN ABOUT FDOC
When Michael Moore came from
Carolinn 10 take over as the secretary of the Florida Department of
Corrections he broughl Michael Wolfe
with him to serve as his deputy secretary. Since Moore took over the depart-

~ulh

ment during January of 1999

he

has

strogglcd 10 rruintain his position as the
depanlTlC'nl has been hil with scandal
after scandal, bUI Wolfe had been able
to keep a low profile that whole
time - until No\'cmber lhat is.
On Nov. 16 state representlltive
Allen Trovillion con finned that he
went 10 Gov. Jcb Bush with complaints
about Ihe on-the-job-behavior of
Wolfe. Trovillion said Ihal he told Bush
that FDOC deputy secretary Michael
Wolfe is ubrnsive and "offensive."
Rep. Trovillion. a Winter ,Park Republican, who chairs the 1·louse correclions commillee, said, "We've had 3 lot
of complaints; he's (Wolfe) very harsh
in the way he operates. His method of
dealing with people is so offensive its
affecled morale in the depanmenl."
Trovillion would nOI e1aboralc on
his complaint to Bush, saying only that
he has reccivcd complaints from Olher
FDOC employees about Wolfe, some

of who dcscribed him as Moore's
"hatchet man."
Trovillion did say hc has namcd
Wolfe about his behavior on several
"occasions," before finally going to the
governor and House Speaker John
Thrasher aboul him.
FDOC spokesman CJ. Drake said
no onl) in the department had prior
knowledge 'about Trovillion's complaints. Wolfe had no comments: he
has a policy of not speaking to the me·
dia.
FDOC officials claim to be bewildered why Trovillion has takcn such an
adverse position to Moore and his administration, espedally when Moore is
a fellow republican-who was appoinled.
by n republican governor..Trovillion
has been an outspoken critic of Moore,
claiming he is not doing enough to protect prisoners and summoning him be·
fore Ihe corrections commillee callier
in 1999.to answer queslions about lhc
opcration of Ihe departmenl.
·'I'm not Irying to run the dcpartment. bUI as chainnan of the corrections comminee it's my responsibility
10 be aware and 10 help develop the
best department we can," Trovillion

said.

This was not the fir.;t time Trovillion had wen! to Gov. Bush complaining about the DOC. In May '99 h-= and
L:my Kennedy. an Orlando management consultant, met with Bush's legal
counsel to discuss \\'hat Kennedy called
"serious matters of mismanagement.
negligence and corruption: within Ihe
department. They were lold the Florida
Depanment of Law Enfortement was
already investigating contraci problems
that prtdate Moore taking over the department.
Approximately lwo weeks after
Rep. Trovillion's recent complainls
about Michael Wolfe olher legislators
wefl~ raising new eomp\aints. Michael
Moore came under criticism from both
republiCan and democral legislators on
Dec: 7. They accused Moore of mul.zling DOC empto)'ees. and making
sweeping changes without informing
the legislature.
Rep. AI Lawson, Tallahassee,
complained Ihat under Moore's direction a North Florida prison was closed
Ihis past· summer wilhom alerting him
or local officials. Lawson said Moore
al$) "muzzled'· his employees 10 keep

FROM THE EDITOR
CREATING A BOII..:ERPLATE DEFENSE
FOOC DEMOTIONS
I
VIDEO VISITING AT TWO FEMAL~ PRISONS
PRISONER BEATEN AT FSP FILES SUIT
FDOC CORRECTIONS CAPTAIN ARRE,STED
CENSORING ATTEMPT QUICKLY OVERTURl'lED
ATTENTION PAROLE ELIGIBLE INMATES
NOTABLE CASES

2
2
4

4
5

5
6

•

10

them from talking about the closing
before it occurred.
Another republican lawmllker,
Rep. George Crady. whose district includes severnl large prisons, said that
corrections employees have been contacting his office saying they are afraid
to publicly criticize how the department
is being operated.
A spokesman for Gov. Bush, how·
ever, said Bush will continue to stand
by Michael Moore and has confidence
in the job Ite is doing as DOC secretary.
[Sources: Miami
12/8199 1.

Herald,

11117/99;

FROM THE EDITOR:
A fel\' months ago I mentioned in

FPI.P that a reorgllni:wtion of this
newsleller and its parent organization,
Florida Prisons' Legal Aid Organization, Inc. (FPLAO), was being considered by the board of directors. Thnt reorgnnization would mean going 10 a
membership-based organization, with
newsleller subscriptions one of the
benefits of membership. During December, the board of directors voted
unanimously 10 go to a membership--based orgnnization.
In order 10 simplify this change. all
current subscribers to FPLP nre now
listed as members of Florida Prisoners'
Lega\ I\id Organization, Inc. Memberships will run on a yearly basis and will
be available [0 all [hose interested in
participating in and advancing Ihe goals
of [he organization and ils members.
The primary goal of the organi7.Iltion
will continue to be addressing and advocating issues that IIrfect Florida prisoners and their families, friends and
loved ones.
This reorganization makes FPLAO
Ihe largest membership-based, grassroolS- supported nonprofit organization in Florida concerned with prisoner
and family advocacy. It also means
members will share more direclly in the
projects laken on, and in Ihe growth
and effectiveness of tile organization.
In coming months. members will
see addirional changes designed to
form [he organization into a more cohesive network of prisoners. their fhmiJies
and friends, attorneys. students. media

representatives, and other advocntes for
responsible and accountable criminal justice and corrections reforms in Florida.
I'd also like to remind everyone that
on April 12,2000, the 3rd Annual Capilol
Rotunda Rally will be held in Tallahassee,
inside tbe Capitol Building. This event
provides ihe oppor1unity for Florida prisoners' families, friends and advocates to
come together, meet one nnother, and pre·
sem a unified voice to slate lawmakers. I
encourage all prisoners 10 hove their family member and friends attend this importnnt event.
And I'd like to thank Mike, Mark,
Joe. Oscar, Ney, Jesse, Charles, Greg and
Rayl for no[ hesitating to fill the breach
when prison officials attempted to muzzle
my voice recently. You proved the old
adage: When the going gets lough, the
tough gets going. Thanks guys! You obviously realize the importance of slicking,
and working, together.
That's it for now. I hope everyone
finds the information in this issue as illlereSling as I did. All members are encouraged to inform others about FPLAO and
get them to sign up as members. The more
of us there are. the more that can be done.
And I know you want to see your organi7.ntion grow. - BOB POSEY.

CREATING A BOILERPLATE
DEFENSE
"Ifyou don't like it, file a grievance!"
How may times have you liS a prisoner in
Florida heard that from a gUllrd, a ranking
officer, or even a classification officer,
assistant warden or warden? It's kind of a
Stock response anytime you question
something yOll feel is wrong, huh? Both
they and you know the grievance procedure rarely resulls in a favorable oUlcome
for prisoners. More often when you attempt to complain about a DOC employee's wrongful actions. whatever they
may be, your response will be, "the officer
denies your allegations, therefore your
grievance is denied."
Essentially. lhe term "file a grievance"
has become a joke in Florida's prisons;
confidence in Ihe grievance system
among prisoners is at an all·time low,
while prison SlafT often retalinte with
impunity against those prisoners auda(Co",lmled 011 paKe 4)

F.P.L.P. VOLUME 6, ISSUE 1

FLORIDA PRISON LEGAL
PERSPECTIVES
POBox 660-387
Chuluota, Florida 32766
Publishing Division of:

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A

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Membership Form
You are invited to become a member of. or renew your member.>hip in. Florida Prisoners' Legal Aid Organization. Inc. Membership benefits include a one-year subscription to the organization's popular bimonthly news!euer, Flodda Prison Legal Penpecfin!s. Contributions 10 the organization (a registered 50 1(c)(3) non profit) are /ax-deductible. Contributions will be used to organize and advance the interests of members; 10 provide a voice for Florida prisoner.> and their families. loved ones and advocates;
and. to educale the public about the Florida criminal justice and prison systems.
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Page 3

(COlIlmufdjrQm pagf 2)

cious enough to carry Ihrough with
wrinen grievances. It's no secret on the inside of the razor wire rences.
It was no real surprise then, when
in December. prisoners statewide
were required 10 watch a three minute
video with Florida Depanment or
Corrections Secretary Michael Moore
advising prison:rs that ir they feel
they have had excessive rorce used
againsl Ihem by any correctional stafT
10 "file a grievance."
Perhaps Moore is 1I0t aware just
how disreputable the DOC grievance
syslem has become. He mllst be
aware, however, that the majority or
lIses or rorce against prisoners occur
in the confinement units, and that potentially abused prisoners mUSI give
any grkl'3»us 10 Ihe same officers
(or their rellow workers), who may
ha\e used the excessive force, to ror·
ward to Ihe mailroom. That's similar
10 handing a lawsuit 10 someone you
inlend to sue and asking them 10 take
it to the counhouse to file ror )'ou,
with the odds or them doing so nbout
the same.
or course, no prisoners who saw
Moorc's video really believed it was
giving advice for their benefit. No,
the general consensus was that Ihe
abbreviated video message reiterating
Ihe DOC's rules on when rorcc is all·
thorized to be used against prisoners,
and advising usc or lhe g~ievallce pro·
cedures when those rules arc viola lcd,
was intended to serve another purpose
beneficial to Moore and the belea·
guered DOC.
a doubt, the video will be shown
10 legislalors nnd any others who
mighl question what Moore is doing
to rerorm the DOC rollowing the
highly publicized beating murder of
prisoner Frank Valdes aI Florida Stale
prison this past July by a gang or
gUllrds - some of whom had documented histories of abusing prisoners.
And the video might be shown to the
FBI and Florida Oepanmenl or L.1w
Enrorcement, ngencies that arc cllr-

F.P.L.P. VOLUME 6, ISSUE 1

rently investigating widespread aile·
gations or brutalization and human
rights abuses in Florida's prisons.
Moore can be heard now, telling
legislators or FBI investigators that he
personally advised nil prisoners to
"file a grievance" ir they believe they
have been wrongfully beaten, subjected to shock shields or stun devices
delivering 50.000 volts, or had pepper
spray fogged into Iheir cells from can·
isters reminiscent or those pest exter·
rninafOrs carry.
11 is doubtful, though, that anyone
will ever see the boilerplate denials
thm prisoncrs most oftcn receive on
their grievances alleging excessive
use of rorce.
By a stroke or rOnlllle, however, we
can see in the leller accompanying
this anicle whllt steps the Police Benevolent Association (PBA), a union
which represents many FDOC prison
guards. has apparently taken to circumvent new FDOC policics. Instead
or advising prison guards not to use
excessivc force. an anomey for the
PBA, I-Ial Johnson, advised FDOC
union members to include a
"boilerplate derensc" in usc or force
repons so lhat guards may later
change their story concerning an incident, ir videotape evidence does nOI
support the first story they told.
And, according to Johnson's lel1er,
the FDOC tacitly approvcd this
"defense in advance" thnl basically
makes the new use or force policies or
the DepanmeTlt meaningless. •

over which Fortner had authority.
Fonner will lake an approximate
$7,000 salary cut wilh the demotion,
going rrom S65,560 to S58,000 a year
in his new position.
During December a racinl slur resuhed in the demotion of Florida
State Prison Major Harry Tison 10 a
sergeant's position. Tison, 58, a career FDOC prison guard, was demoted on Dec. 3 ror "conduct unbe·
coming," according to Fooe omcia Is. Allegedly, Tison, while lalking
to two other guards abollt Assistant
Wardcn AdAm Thomas, stated. "Just
what we need, another niggcr on the
compound." Thomas, who is blnck,
stnned a1 the prison in mid-August
lind supervised the work camp section
of Florida State Prison. Tison admit·
ted making the statement, but claimed
it was just a "slip or the tongue." Tison told investigators Ihal he gre\\ up
using such language nnd apologi7.cd
for the slip.
[Sources: PLN, 12199; 51. Pele Times.

12110/991.

VIDEO VISITING
AT TWO FEMALE PRISONS
by Teresa Bums

Sianing in February, state prison
omcials in Florida will launch a ne\\
visitation program for relllalc prisoners that is designed, in pan, to stine criticism from prisoner advocacy groups, lind
slate legislators, Ihat the Department of
Corrections (DOC) has in the pasl erected
"many impediments" making it difficult
for families to visit and remain connected
10 incarcemted loved ones. This new pro·
gram will allow televised visits bcmcen
incarcerated mothers located in prisons in
FDoe DEMOTIONS
Central Florida and their children who
live in the MiamilSouth Florida area.
Using closed-circuit video cameras
During September a rormer warden al
prisons locllted in Jasper and Madison and monitors located al Lowell and Uer·
was demoted to assistanl warden and nando ColTt'Ctionallnslitutions, up to 200
transferred to n different prison. Tho- women prisoners, who otherwise might
mas Fonner was found [0 have cre· not be able to visit wilh their children
because of Ihe distance involved, will be
aled n hostile work environment
connected to a similar set-up IOCllted in
through a pattern of having indiscreet Miami where their children will be able
afTnirs with female prison employees 10 see, hear and lalk live with their moms.

Page 4

This new project is one more step by
!he DOC to address the fact that while
most of the ],500 female prisoners in
Florida are aclually from South Florida.
most female prisons have been located in
Nonh and Cenlral Florida. The lravel distances involved have made it impossible
for many families to visit and has made it
especially hard for incarcerated mothers
to mainlain close ties with their children.
\Vi!hin the last few momhs the DOC
finally converted a South Florida men's
prison near Miami 10 a woman's prison
specifically to address that problem.
The DOC furnished S385.734 and
gOi a S300,000 federal gram to fund the
video·visiting program. Priority will go 10
poorer families who cannot afford the
tmvel involved ill long distance visiting.
AlIioncellFP-South, formerly the Alliance for Media Arts. a nonprofit group
that promotes independem filmmaking.
will provide the offices and equipment in
Miami where the children will go to participate.
Nadine Anderson, execuli\'e director
of Families \Vi!h Loved ones In Prison,
expressed concern that if successful video
visiting may replace regular contact visits
for all prisoners. DOC officials denied
that would ever occur. "We would not do
thar," said Richard Nimer, director of
program services for the DOC. "Nothing
takes [he place of a personal visit and that
\\ouldn't be our intent by any stretch of
the imaginmion."
While Florida Prisoners' Legal Aid
OrganiZlltion (FPLAO) directors were
among those pushing for some type of
relief for women prisoners in their
visiting situation over the past three
years, there arc some reservat ions
with the planned video visiting progrom. There is concern over who will
select which women prisoners will
participate in the program and
whether there will be a "hidden" criIcria for participation attached for
\\'omen prisoners.
There is also concern over the
DOC's announced intent that the visits will be for one hour each and will
consist of the moms reading books to
their children. While literacy is a
laudable goal, such a regimcntcd rcstriction may do linle as far as main·
taining a family relationship when

F.P.L.P. VOLUME 6, ISSUE 1

such a short period for the visit is allowed to begin with. And it is ironic
that literacy will be such a concern for
the DOC in the video visits when the
DOC slill has not complied with the
1999 legislative mandate that equipment and supplies be provided in the
regular visiting parks to help keep vis·
iting children occupied. FPLAO staff
will be pushing for thai compliance
Ihis year. •

PRISONER BEATEN
AT FSP FILES SUIT
JACKSONVILLE - On Nov. 9,

that struggle with guards his jaw was
broke, but he remained in solitary confinement for nine days, his complaints
ignored by guards, and medical staff.
It wasn't until July 19, when Florida Department of Law Enforcement
agents descended on FSP to investigate
Frank Valdes' murder, that Mathews
finally was given medical treatment
He underwent jaw surgery at Shands
Hospilal in Gainesville where a metal
plate had to be embedded in his face ro
repair his shancredjaw.
Mathew's lawsuit also claims thol
FSP Warden James Crosby, prison inspector Tim Gicbcrg, prison dentist
James Posten and other prison staff and
medical personnel knew what had hap·
pened to him and became pan of a conspiracy to cover up lhe guards' actions.
After being taken out of FSP
Mathews was subsequently sent to the
Nonh Florida Receprjon Cenler, then
to Union CI, Bnker CI and Columbia
CI. In an interview with an FPLP staff
member at Columbia CI. Mathews said
that he was threatened by guards with
being killed if he talked after Fronk
Valdes was killed. He stated that he
had been threatened (II Union. Baker
and Columbia Cis. /-Ie also staled thai
he had been refused food for se\eral
days after being beat at FSP.
On August 25 Mllthews and the
four other Hamihon CI prisoners were
each charged with aggravated bauery
on a law enforcement officer and five
counts of ballery on n law enforcement
officer.
In the lawsuit filed by Mathews he
seeks actual and punitive damages.
Guy Rubin said other prisoners who
have been beaten at FSP may be added
to the suit.

fanner Florida State Prison (FSP)
prisoner Willie Mathews filcd a federal lawsuit claiming his civil rights
were violated when he was beaten and
had his jaw broke by FSP guards.
The suit, represented by attorney
Guy Rubins, says 21 prison employees either participated in or were witnesses to the six days of beatings that
Mathews suffered on the now infa·
mous "X-Wing" at FSP, the same
wing where death row prisoner Frank
Valdes was beat 10 death by guards on
July 17, 1999. Thc lawsuit alleges, in
part, that Valdes was beaten to death
because of his complai nls about
Mathews and four other Hamilton
Correctional Institution (CI) prisoners
being systematically beatcn and
abuscd by guards and then denied
medical care for the injuries they suffered.
Mathews was one of five prisoners sent to FSP on July 4, 1999, from
Hamilton CI, where they were accused of assaulting six guards the day
before. One female guard involved in
the disturbance at Hamilton allegedly
had a miscarriage a \\eek later. That is
when prison guards at FSP went ber- (Source: Gainesville Sun, 8/27/99;
serk.
Tampa Tribune, 11111/99; Willie
Mathew's lawsuit claims Ihat on Mathews] •
July 10, several FSP guards handcuffed him, put a pillowcase over his
FDOC CORRECTIONS
head, tied a rope around his neck. and
CAPTAIN ARRESTED
knocked and dragged him down a
staircase. Mathews claims thm during
A Florida Department of Corree-

Page 5

tions (FOOC) captain was arrested by
Floridll City police on 11/17/99 for
allegedly assaulting his girlfriend - a
Florida City police officer.
According to police reports, Darryl J. Hall, 38, a captain at the South
Florida Reception Cellter, was
charged with battery on a lawen·
forcement officer and burglary into an
occupied motor vehicle aner hitting
his former police officer girlfriend,
Nivia Cordero, 28, when she was on
duty in her police car.
Allegedly Hall and Cordero had
been in a six-year relationship. On
Nov. 7, Hall approached Cordero's
patrol car parkeclat a \Val-Mart where
Cordero was talking to a male friend.
Police say Hall got angry and
punched Cordero in the face through
the open car window.
Florida City Deputy Chief Juan
Santos said Hall is responsible for
thousands of prisoners at the South
Florida prison. The FOOC had no
comment on the incident.
{Source: Miami Herald, 11/18/99].

NEW HAMPSHIRE DOC
CUTS PRISON PHONE RATES
Seven months after NH prisoner
Michael Guglielmo threatened to sue
the NH Department of Corrections
over excessive phone rates being
charged prisoners find their families
and "friends, who lIccept collect calls
from prisoners, the state began rene·
gotiating its prison telephone contmcts with Sprint and WoridCom tele·
phone companies.
Guglielmo started his intended
action by filing a public records request to obtain the phone contracts
between the NH DOC and the phone
companies that show the amount of
commission that the DOC was rcceiv·
ing back on every dollar collccted by
the phone companies. Thosc contracts
showed that in 1997 Sprint had
kicked-back 35 percent and WorldCom 40 percent of everything they
made off prisoners' families and

F.P.L.P. VOLUME 6, ISSUE 1

friends to the DOC.
In July 1999 a new contmct was
approved Ihat will reduce Ihe initial
surcharge on out-of-state calls from
$3.28 down to $1.50, and the per min·
ute rate will be reduced from 55 cents
down to 20 cents, the same as regular
citizens pay for colieci calls from pay
phones in NH.
[Source: Concord A'lonitor, 7/23/99]

•
CENSORING ATTEMPT
QUICKLY OVERTURNED

reason for censorship was that simply
reading the article might cause Florida
prisoners to become violent and/or
otherwise cause security problems. Esquire Edilor-in-Chief David Granger
was quoted as saying; "I was struck
that they would think our piece so
powerful it could cause problems." He
said he didn't think the piece would
actually spur prisoners to violence just
because it reports guards in another
prison system abused inmates. "It has
nothing to do with Florida prisons,"
said Granger.
The attempt to censor fhe magazine carne during the midst of the
shakeup the department is going
through concerning the murder of
death row prisoner Frank Valdes at
Florida State Prison on July 17th by
prison guards, a subsequent investigation by the FBI into abuse throughout lhe
FDOC, and intcnse scruliny and question.
ing of the FDOC by state legislators. It
was initially felt by some mainstream
news reporters that the magazine rejection
was prompted by thc problems the depart·
ment is having. A spokesman for Ih~
FDOC, c.1. Drake, after speaking with
Warden Honsted, stated that did nOt appear to be the case.
One thing Ihat is clear, lhe FDOC immediately moved (0 convene lhe literature
rcvicw commillce, which found that the
magazine was admissible, and would not
be rejected lhe next day after the first
newspaper article appeared aboul the censorship. C.J. Drake Slaled following lhnt
decision that the committee members did·
n't find the article paniculnrly innammn·
tory. This was perhnps the quickest ~view
of a publication rejection that Ihe FOOC
has ever performed. Prisoners report that
normally when prison officials allempl fO
refuse delivery of a publication to them
lhal if may take a month or two to gel a
final decision from the review comminee
in Tallahassee.

During August prison officials at
North Florida Reception Center in
Lake Butler, Florida, attempted to
censor the September issue of Esquire
magazine as it allegedly contained an
anide thm was "dangerously inflammato!)'." The article, "The Making of
Bonecrusher," by Richard Stratton,
told the story of a brutal prison guard
at Corcoran State Prison in California.
The guard, Roscoe "Bonecrusher"
Pondexter, gave his account in the article of how he lind other guards brutally abused prisoners and forced
them to fight "gladiator" style in confinement unit exercise areas, how bets
would be placed on the outcome of
the fights, and how numerous prisoners were shot and killed by guards
during the staged figllls.
The decision to prevent Florida
prisoners from reading the September
issue of Esquire was made by a single
warden, Robert Honsted, of the North
Florida Reception Center. When Esquire received a notice that the issue
was being rejected they alerted news
organizations, which picked up on the
story. Once severn I newspapers in
Florida reported on thc censorship,
the Florida Department Of Correc·
[Sources: Miami flerald, 8125: Gail1l!svlfle
tions (FDOC) quickly moved 10 announce that the rejection would be
(Col1/lnurd on pap 8)
taken before the department's Literature Review Committee in TallahasWeb I'age Addrc.u:
see for a final decision.
hllp:Iln1ClllbcfI.aol.comJfplplf'lltl.hlml
The implication of Warden HonE-mail Addren: fplp@aol.rom
Trlqlhont: (407) 568·0200
sted's "dangerously inflammatory"

Page 6

~

.. ' ..

-; "."-

-'

:.

.

FLORIDA POUC~jBENBVOLBNT ASSOCIATlOfl/,j.NC.

To:

All S,. ConectioDal Offtcer Chapter Members

From: G. -Hal- Johnson, 0eDeraI Couusel

Date: .November 16. 1999
Re:

ltur4enI/VIIO/FDrce RlpDrtI- 'Vl4sDlqlllClll B%trtutiom anti Vses 01 Foree

Asyou"I1'C. aware. the Florida Depanmem of CotrecdoDS hu Implemented a poUey which
requires tbat·ceU ~oDS and uses of force (where posslbte) be vfd~. Since die
Depanment bas determined officers wW DOt be permitted to review the vicJeollpe prior to the
preparadon ofb1Pidemand Use of force repons. there Is a looel c1wlce your repon will Dot be

rorany accurate.Thc Florida P.B.A. (and hopefo11y the Depanment) undemands these
lDaccuraclesare Dot on purpose, but a matter ofJneDlOJy lapses due lathe stress of the situadOD.
. ThIs matter haS been discussed with the Department. Based upon these dlscussJODS, the
Florida P.B.A. suggests the foUowIDg senteDcr.I be Included In incident or use of force
reports which have "been 'fIdeotaped: THIS REPORT IBFLBCTS MY BEST
RECOLLECTION OF TBEINCIDENT AND MY ACTIONS DURING IT; HOWEVER, 1
RAVE NOT BAD '.l'8EOPPORTUN1TY TO VIIW TIlE" vm~APE 'OF THE
INCIDINT. ANYDD'IIRENCBS BITWBN MY DBSCRIPTION TBE INCIDINT
AND THE VDlEOTAPE"ARE NOTINTIN'tIQ~ALt BUT INSTEAD.REFLEC.T ALACK
OF MEMORY 0., SOME DEI'AJLSOI' THE INcIDENT DUE TO THE STRESS OFTBE
SITUATION. I WOULD LIKE TO RESERVE THE OPPORTUNITY TO CHANGE OR
AMEND MY REPORT AFl'ERt REVJBWTBE VIDEOTAPE OFTBE INCIDENT.

or

TIle Florida P.B.A. understands these sentences may seeJIllODg, wmecessary and abunch
. of -legalese." SdU. we BUSIest you Include themin your repon; u soon as you don,l, you'll wish
you had. It's better to be safe thaD sorry.
.

GHJ/mkb
F.P.L.P. VOLUME 6, ISSUE 1

Page 7

IConlurwdftom pa~ 6)

SUfi. 8127: St. Petersburg Times, 81281.

ATfENTION PAROLE ELiCIRLE
INMATES
There are basically four groups of inmates left in the Florida Depanmenl of
COlTeetions (fDOC) that are "Parole Eligible:' The first group are those thai
\1 ere sentenced prior to October la, 1983
(\\hen parole was eliminated). The second group nrc those that were sentenced
for a crime prior 10 10·j·83 and were
Itller paroled and then commined a new
crime after 10·1·83 while Ihey were on
parole on their previous conviction. This
group ;s under both systems. Then there
arc the eapilal life sentences with mandlltory twenty· five year senlences and this
group falls into two calegories. The first
are those that have completed at least
t\lenly-five calendar years and the seeond arc those Ihal haven't compleled
their minimum mandalOry twenly·five
~ears_

There nre currently almost 2.200 inmales
that fall into the first category. These are
men and women that were sentenced to
prison prior to the implementation of
guideline sentencing on OClober I'" 1983
and Iherefore mUSI either EOS their sen·
tence or be paroled. After 10-1-83. inmates entering lhe FDOC were no longer
under the authority of the Florida Pnrole
Commission (FPC).
There is a tremendous feeling of hopelessness among lhese "Parole Eligible"
inmates. Many of them have given up
hope of ever being released from prison
even Ihough they have done everything
lhat has betn required of them. They
ha\-e paid their debt to society (e\en if
e\aluated by leday's 85% standard) lhe
majority of them \\ould qualify for reo
lease Most of them have \ery good 10
exemplary prison records. MOSI of them
arc in Ihe age group with the lowest risk
for retidi\'ism. In light of the fact that
inmates sentenced after October I", 1983
are being released every day Ihat have
commined the same types of crimes,
there is no justification for continuing to
keep the majority of these inmates incar·
ceraled.

F.P.L.P. VOLUME 6, ISSUE 1

Granled there are a few of these inmales
that arc extremely dangerous, or have such
mental aberrations thllt they would nm be
able 10 fit into sociely as law.abiding citizens. But Ihis is a small group. The majority ha\'e demonstrated by their institutional
adjuslment that Ihey do not fall into either
of these categories.
I believe it is time thlll these inmates be
given the chance to return to their families
and their communities. J am willing to help
but I cannot do il alone. I will need help.
I've been \~orking on this project for several months now,
and we recently held our firsl statewide
meeting in Orlundo. We had inmale rami·
lies, ex-ofTenders, and concerned citizens
in attendancc as well as Representativc
Allen Trovillion, lhe chairnmn of the correclions commiuee for the Florida Legislature.

Chainnan Trovillion is very interested in
the plighl of the elderly in Florida's prisons
and has promised his support in our effon
10 help this group of inmates oblain their
freedom. Chairman Trovillion also has a
very good understanding of the fiscal consequences of keeping elderly inmales in·
carcerated. The cost to incarcenlle elderly
inmates (50 or older) can be three times as
expensive as the co<;t to incarcerate
younger inmates. It cnn cost as much as
560,000.00 II year to incarcerate this age
group.
There are many ways which you can help.
First of all, yOIl can mnke a list of the people that you know lhnt nrc concerned and
have lhem contnct us ( this will save us
lime and money). Once this proposnl has
been officially submitted as a member pro·
ject by Ch3innan Trovillion, you can contact your represenlalive and ask him to
please suppan lhis efTon. For those thaI are
not in prison that would like to volunteer
their lime. lalent, and or treasure. we enn
use all of the resources we can that we can
gel. Those of~ou that are inc..n::erated who
can afford to send a financial comribulion
(e\'en if it is nothing more than a stamp)
should help as much as )'ou are able. And
of course. evcr)one can pray.
Due to lack of lime, energy and resources.
we have to deal with lhis as a group problem rather than on 1I case by case basis.
There is no way lhat I can personally an-

swer inmate mail. It wil1take away from
the time that I need to devole 10 this, so
please try to understand. Besides, I am
sure lhal you would ralher I devote my
time to the task at hand than answer your
lener.
For those of you thai aren't incarcerated
Ihat want to be involved, please send me
your name, address. city, state. zip, home
phone, work phone, e·mail and any other
information that you feel would be useful. Please let me know if you have skills
that you feel would be helpful in this ef·
fan IF you arc sending a financial comribUlion, make your check OUI 10 Time for
Freedom, Inc. and on the memo line pUl
P.E.!. I'rojcct (that stands for parole eli·
gible inmates). Pleasc add this project on
your prayer list and remember it's needs.
Bernie DeCastro
Please $tnd aU th«k. mOMy orders. SlImpS along
\1M a lIOle specifying r E.I project to
Time For Freedom, 1m.
P.O. Box 819
Ocala FI 3·U78
PRISON LEGAL NEWS
·Perhaps the most dctailed joum31
describing the de\eloprntnt of pnson law is
Prison Legal Ne.... s.~ - Mllf1i
I/iken.
Dim:lor Prison La\~ Projcct of the
Nationllll.a....)ers Guild.
I'LN is II 24 page. monlhl) magvjne.
published since 1990, edited b) Washington
stale prisoners Paul Wright and Dan Pens
Eaeh hSlle is packed wilh sumrnarie!i and
anal)'sis of rccent court rulings denling .....ith
prison rights, wrillen from a prisoner
persfM:etivc. Also included in each issue lire
news articles dcnling with prison·rcltllcd
strugglc lind lIctivism from the U.S. and
around the Ilorid.
Annual subscriplion rnles lire SI5 for
prisoners. If lOU can't afford to send SI5 at
once. send al kast S7.50 and \~C will pro-fUte
lour subscriplion at SI.25 per issue, I'lease
send no less than S7.50 per donalion, N('oY
(Unused) U.S POSt.llge siamps rna)' be uscd 15
payment
For nOn-inClll'CCfUled indi~'iduals, Ihe
subscription nue is S251)T InstituliOlUI
subscriplions
(for allomt>s. Iibrarie!.
gO\ emment agCllcics. non-g()\"cmmen:t1
orgnniZlltions. elc.) arc S6Q1)r S:unplr:
copics arc ll\":1illlble for S1. ConllCt:
Prison Legal News
PMB 148
2400 N.W. 80th SL
Seallie \VA 98117

Page 8

THOMAS E. SMOLKA
ATTORNEY-AT-LAW

3126 W. CARY STREET, SUITE 122
RICHMOND, VIRGINIA 23221-3504
TELEPHONE (804) 6C4044A

ANNOUNCEMENT
ThomasE. Smolka is proud to announce the establishment ofhis law practice in
Richmond. His practice areas include: Criminal Defense Law, Appellate Criminal Law,
Post-Conviction Relief; Major Civil Litigation, Inmate Administrative Law and
Proceedings involving the Department of Corrections, Probation and Parole, Executive
Clemency, InterstaleCompact and Institutional Transfers, Immigration Law and

,

Detainer Actions.
Additionally, ThDmqs B, SmDlk qnd "uoclqtg located at 909 East Park
Ayenue. Tqllahqssee Flqridq 3230/-2646, Telephone (85Q) 222-6400. Te1dax (asQ) 222-

, 6484. will continue to provide a,fUII ranee qfCon$ultin~Seryices tq Inmqtes on
Administrative. BwcUtive ClemenQ' qnd Parole Related Mquers.

Subsequentto his 1975 graduation from America's oldest law school at the
College of William &. Mary, Thomas E. Smolka was admitted to the Virginia State Bar
and became a member ofthe National Association of Criminal Defense Lawyers. Tom's

legal experience includes service as an Assistant City Attomey ofNorfolk, Virginia
followed by many years in private law practice. Most importantly, Tom Smolka's direct
undemanding ofthe American judiciary came when he confronted the criminal justice
system, won his c1irect appeal and was exonerated. See Smolka v. State. 662 So.2d 1255

(Fla. Sill DCA 1995), rev. denied, State v. Smolka, 668 So.2d 603 (Fla. 1996).

@:~

NOTABLE CASES
by Sheni Johnson and Brian Moms

ELEVENTII CIRCUIT

I'ROV\SIONS OF nlE PLRA
The: l"(lenth Cifellil COlin of Appeals answered
SCICml rmponmll qUduons relalmg 10 h\O PfO\ I'

sions Oflhc Pmon I.mg9110ll Reform ACl of 1996
(PLRAl TUle 42 US C kChon 1997c(1) (Supp
/I 1996) prtmdcs thaI Hlnlo 3CI,on shall lit
brought

~lIh

Ilurllll! the pendent) Oflhls actIOn SIX of [he elel'en
pbmu1Ts "CfC' relclUed from pilson Those SIX
plalllll1Ts mOl"cd 10 IIlllldra.. Ihclt claims for m·
Junctwe relief llhile mamtainlllg thelf' suit for d:un,

Finall)', lhC' district coun gRIlled defendJnts' 12M
(6) motion IfId dismIssed "lth pleJudlOl: plalmlfT
James Wade's claims ror tompcnsatOf) and pllmll\C
dllITUlgC5 becausc elen though Wilde \\'IS still In
pnson and had CJfhaUSled all available lldminlJ'lrall~c
rrmedies.. his allegauons of pll)'Sical injury \\'~re not

Igcs The rnalllllrtUe judgc tltated lhe plallllllTs'
mouon IS lin amendmrnl to the eomplainl and ISsued a rqJOfI and m:()fJ\mendauon to the duuict

serious enough 10 satisfy the physical inJul) requrrc·
ment of SC1:tion 1997c(e) Accordingly, lhe claims
""ne banm. The distnet COUll did nGl addrcu Wade's

J"'''
Anel KCelung the lTlIgISu.e Judge's re-eonunen-

claims fOllnjunetlle md declllJ1l1of}' relIef
Plalllliffi appeaIcd [0 Ute Ek',enlh ennui
The E1C'o'enlh CIrCUli upheld the dlsmluaJ of those
c1amlS for lRjunctlle rthef for !hose pllllntliT... 110
had been relcased from custoa) bin \'KalCd the onkr
du:misslflg ....IUt prejudice the released Pllsoneu'
clluTTI$ for compenwory Illd pUnl\l\"e dlll'l\lfe$, The
cucun coun round erlor m the dIstrict coun's holdln&
Ihat SectIon 1997*) is appliCllb\e to pnsonm "Ito
h:\I'e been rcleased The clltuit eourt made II clear
Ihal once !he disl/ict eourltrellttd the relcased pnson·
ers' compl311ll as amcndcd, tho~e SIX plQlnlitfs beClime -fonnel pnsoners~ .. Ito had filed n complaint
for mortcll11Y damages againsl cmplo)"'Cca of the
GDOC for injuries su1Tered "hilt 111 custody
The eircllll eoun n:hed on the ClCplCSS IM&Uage of
section 1997e{e) :lid lhe definlllon of ~pnsoner­
Thus, SC1:IiOll 1997*) did not lflply to -former pusOIICfS- or Ihosc ",he h~Ie been rtleased from a corm:lioI'.al fBelhry because such persons an: delrl) nol
-confilJCd In IJall, pnson, 01 corm:tiOnaJ fClht) - IS
~ulred b) ~ i997C{cl- The oram coun "''IS
noc persuaded b) the: defend4nts- eong.rcssional Illla'll
lII!Umenl because of Ihe dlslmellon made bet..em
pnsoncrs and those .. ho lire not PllsonCT1 II) Scnlllon
Dole and K)I The: ClltUI[ eouT1 also jorned the Sc\'enlh CirCUli In holdin& tlw section 1997C'(e) only
applies 10 prisoncrs ..ho arc inellrecraled at lhe ume
they seek relief, nnd IlOI 10 rl)rmer Jlf1!Onef1 .. ho sed:
dllnmges ror IIljUIiCS suffcred .... hile the) "ere Inearceraled, Sec: Km \' Plll;hl/, 138 F 3d 321,323 (7th
Cirl998)
The eircuil coun affirmed the dIstriCt eoul\'S diSmissal of claIms b) two eattpJf1cs of pla:ntl!Ts ..110
had failed to r:xhllllSl admtnlSlBlilc remedlcs pOOl 10
blinging !heir SUll Those plllllltilTs made a valllrt[
argumenl Utat they should nor be reqUIred to exhaust
lhell admllllSlratllc remedies bc<:ltusc of rUlJht) and
~ no admlnistr.lhle !rhefts ""lI1'lIiIMlle-1O plallllltr~
~ the lnm31C Gnt',lllee Procedure does noc
pro\lde ror moneuuy dJrnages lIlI"3tds plalrtlilTs see~
The eireuil COlIn raffilfJlCd lhat sectton 1997e(al
Imposes a m:vwJaIOl) requlremcnl uw pllsoners «hllUll lIll al'allabll; a:lmlnistrall\'e remallel' prior II)
bringing a ci\'ll tights SUII Further, lhe mClll1 coun
lIe1d that thc. term ~avallable" lIS used in stellon 1997e
(a) docs not mean lIt:u prisonelS must (01)' e,wusl
lhcil adminislralil"e remedies if the reHefthey setk iii
"al'~ilable" wilhin Ihe pdnllnlSlrallvc lIjlpllmtUS, In,
Slead, lite lerm means lh~tl pnsoncr mUSl exhlUll all
admllllSlr:llile remedlCS Utlll are a\'ailable befllt~ fllIIIg SUIt, rqardless oflheil adequacy,
The rtm:lJlllng plalnulT Jama Wade h.ld e:\hJulled
1II1 available admlnlstratll"C rrmcdlCS Illd a1IC1Cd lhe

prCSCllI The Squad ph)'$lcally hanused some pnsonels llr'Id ordered one pnSOrlCf 10 -dl) ~ha\"c"

ANSWERS QUESTIONS
RELATING TO TWO

respect to pilson conditIons under

~1Oll

1983 of thIS 11l1e. or 11I1) 0Ihct Ftdcrul
1:1.". b) a pnSOfl(f CUllined m an) .PlI, jlll$Ol\, or
Olhet rorm:tiorW fKlln) unul sud! a<!mll\istn11\( mned,a as arc anrlabk afe c..wuslcd
Tllk..l2 USC 1991*)(SuJIP /I 1996) pro. Ides
llial H[nlo Federal el\ r11lC11(ln rna) be brought b)"
:l pllson,r confined In 3. Jill, prison or olher cOrIceltonal (aeihl). for l11cnL~1 or cmouonol mjUf}
suITclcd "hilt In custody \\ithoul a prior showing
of ph)1IcalrnJuty"
The dl$Ull;\ colin WlIs rated \\ ilh Ille following
questions OJ "kihei S!:CIIDII 1997 c(c) apphc:s
to f(lffi\('f prisoncn \\110 lile a cl:um for IIlJuncs
suiTm:d "hlle III cu~od), lInCf !he) mc been
Iclnscd lioru lnc=1Il10n, fl) .. hcther sccttOfl
1997e(1) rrquII~ Pllscml'$ 10 ahauS! all admlll!5lraflle mnedlcs befOle lItC) bllng a fcdCf1ll law
1ICllOI1 "'IUt rcspccllo pnson condllloni. c\'en If II
..oold be fuulc for !hc p1lSO"'" 10
such ad·
mUlISllBlIIC remcdlcs, and clcn Ihough thc ad·
mIllISlrll\l\C r~rnedlCS lIIe 1Il1ldequlIle" (3) Ilhm
lCI.:l of injury must be su,tlllncd for 1I pmoner 10
mccl tbe secllon 1997c(e) rcquircm~nt IhDt Ihe
plISonel mUSI make 1I "prIOr sholllllll of phYSical
InJUI) - beforc fihng SUII for -mcnutl 01 emollonal
InJul) su1To:red ..hlle In CUSlod)-; and {"I the
consuiUltonaht} OfsecllOrl 1997e(e)
EleHn pnsooclS III the stale of Georgia brought
thiS cI1l1 nghts XllOn SUit lOt darmgcs lUld Ill·
JlIIlctlle rdJef agamu the pnson offiCIals of Ihc
Georgll DqlartmCTIl ot COfTCC1lonS (GIX)CI
The pnsonas 'alleged I'IObllOflS oflhelr FOUT1h,
Eighlh.. Md Fourt~lh Amendment nghts as II
resull of IlC\lOI1$ allegedl) lakcn b)' lhe prison
guards dunng a prison -shlkeoo..n~, The pns·
oner plalllufTs allcgcd lh~l mcmbers of the spe,
cIlil lllI$On 1"lIcllcal Squad" sionned lhe pmoo
on Oc{()!)(r 23, 1996 :md ordered lhC'm 10 stup
n:U.cd Thc Squad pcrfotmed bolt) calli)
sc:uthcs ...hlle lnmIbm oflhe OPPOSite SQ wae
H

scc"

F.P.L.P. VOLUME 6, ISSUE 1

d_ions., the distnct Judgc for the \lidJle DisUld of
Georgia dmded the plliJtuffs Ultl) fOUl elllSSCS ac-

COfdIllIIO theit dlfTefCflt f~lllIl elleurnstanen. and
ISSued aNling particular to each class IS follows'
FllSl, lhe dlstnct court found thai plllllum Dann)'
Ch3dwick, Fcdend. U.lis. l.cnlos Cook, Willie
llooks, Farrell NlIllOll, and Wilhl1Jll D3lte)' had
been released rrom eustoo)' As sueh, their claims
ror Injunclilc relit'f wcre mOOl The court abo
pled defendant!' 12jb) (6) mol.lon and dismissed
.. IUt prejudice lhcsc plalnUrrs' elalms for eompen·
salOl}

and punni\c d3mllle5 bccsusc lhC)' did not

allege

In)

ph)'slelll IIlJul)' In dolllg so the court

reas.oned t1lllI the CllllfllS "ere barred by sed)Of\
1997c(e)'s ph)'Sieal inJUf) fCqulrell1(nt The dlumt
court adopted the mllgiSlrlle jUdge's recornmendatlOfl .. llIt onl) I sllghl modlfieauoo and held tIIal
-secllon 1997c(e) IS arplreable 10 cwms of pllsoncIS llho hal"e been relcasedSecond, the dlSlTlCI COUT1 dismissed \11!houl preJudice Ihe clllims or plllinlllTs Samucl l.oc:klcllf, Alan
Kilgore, and l.ero)' Langes because lhese plalnli1Ts
hlld nOl )"tl uhausted all lhelr aVllllllble lldmllliSllll·
me remedlcs and thus had not SlIusned the exhlustion rrqullemenl or scr;tlOf! 1997c(a) Thc dmnct
COUrt also found UUll these plalnlllTs' clanns for
compensatory and punlllle damages IICfe baned b)
section 1997c(c) bec1USC the) did not allele lite
laIulSlle ph)sleal InJllI)
Third. the distnet court d'Slmued wlthoul plCjOOIl:c
lhe claims of plalnlltr DI)lOII Bnnkley because he
h3d fill! )'C1 c.,haustr:d all of hiS 1111llable admlllls,
U'lIIII"e mnedles and Ihus hlllJ not satIsfied .sectIon
1997C'(a), Thc district couT1llso found tllal Drmk·
Icy's claim fOf compensllol) and punllile damages
Ilere nOl barred by s«llon 1997e(e) because he
alleged Ihe requlslle pll)sical lIlJul)'" The distlici
coun noted thaI before Bnnkley could bung his
aCllon 10 Ihe alUn he .. ould be requIred to CllhlUSI
all alllbble sdnnmSlralile remcdlcs

Page 10

requisite physical injury in his complaint for com- questions presented by Wade. Further, the court did through the circuit court hoop, and the attendant
pensatory and punitive damages. Wade alleged thaI not attempt to clearly define when a physical Injury bias of the Second Judicial Circuit Court, and filing
the Squad made him "dry shave" which caused becomes significant for purposes of satisfYing sec- fee barrier, to challenge rules of the DOC following
bleeding, inflammation, inilalion, ingrown facial tion 1997e(e). II appears that the court will treat denial of 120.54(7) rule adoption, repeal or amendfuture cases ~Illll:ase-by-e:ase basis. The most trou- ment petition, unlike any other citizen of the state.
hair, Infection, purulence and pain.
See: Quigley 1/. FDOC,_ _So.2d_, 24
The court evaluated Wade's claim and joined the blesome aspect of this case is the court's refUsal to
Fifth Circuil in fUsing the physical injury analysis recognize a equal protection violation by the dispa- Fla.L.Wcckly, D2405-06 (Fla.lst.DCA 10120199).
under section 1997e(e) with the framework sel out rate treatment of prisoners from those who are not
by the Supreme Court In Hudson Y. McMllIton, 503 prisoners, especially when II comes to m\lnetary
Evidentiary Hearing Required
U.S. 1,9, (1992), for analyzing claims broughl under damage suits. While a free person has monetary
To
Resolve Mailbox Rule Claim
the Eighth Amendment for cruel and unusual pun- redress for constilutional violalions, a prisoner is
ishment The court concluded that in order to satisfy precluded from this same remedy. This is probably
Second Judicial Circuit Judge N. Sanders
section 1997e(e) the physical lnjwy must be more why constitutional violalions continue 10 plague
than de minimis (triOing, minimal), but need not be prisons throughout the nation. What better way to Sauls dismissed a petition for writ of mandamus
significant See: Gomez 1/. Chandler, 163 F.3d deter constitutional violations than to hit the violator challenging a DOC disciplinary action against prisoner Alfonso Detroy Ponlon. The dismissal oc921,924 (5th Cir. 1999). The court detennined that where It hurts, his wallel- oh].
curred when: Ponton failed to comply with a case
Wade had nol alleged a physical il\iury that Is more
management order to file an indigency affidavit and
IhlIn de minimis. A "dry shave" withoul morC, is
- Administrative Lawrelated papers per section 57.085, Fla. Stat.
simply not the kind of "injury" that is cogniZllble
Reasons for Denial of Sec, lZO,S4(7) PetiOn appeal Ponlon claimed thlIt he had timely
under seclion 1997e(e).
.
turned the required documents over to prison offi·
tions not Reviewable on Direct Appeal
Because the circuit Court agreed wilh the dislrict
cials to mail, but for unknown reasons they were nol
court thlll Wade's injuries were nol sufficienl to
by Prisoners
senllo the court.
meet the physical injury requirement of seelion
The appeal coun reasoned that Ponton, as a
1997e(e), it was faced with his remaining contention
Prisoner James Quigley (an FPLP advisor) prisoner, was entitled to the benefit of the Umailbox
thai section 1997e(e) is unconstitutional as applied
filed a sec. 120.54(7), Fla. Stat., petition to repeal rule". Haag v. State, 591 So.2d 614,617 (Fla. 1992)
bamng his claim for compensatory and punitive
damages. Wade argued that the statutory bar to DOC rule 33-3.005(9). That rule prohibits prison (Pleading deemed filed when inmate turns docuclaims not involving physical injury amounts to a official notaries from notarizing the copies of legal menl over to prison officials for processing). In the
denial of due process under the Fifth Amendment documents that Florida prisoners keep for their own face of Ponton's claim that he had turned the docu·
and in violation of the Equal Protection Clause un- flies. Quigley requesled in his pelition thaI the rule ments over to be mailed, the CQurt remanded for an
be replaced with one that \\'Ould allow prisoners 10 evidenliary hearing to determine if that was true,
der the Fourteenth Amendment.
Wade contended that the application of seclion keep a notarized copy of any documents thaI prison and if so, for the circuit coun to afford Ponion an
opportunity to re-fiJe the documents in accordancc
1997c{e) amounted to a due process violation be- officials might nollUize.
The DOC denied Quigley's pelition, claiming with Mosiello v. Moore, 24 FlaL. Weekly 01778
cause it tailors the court'sjurisdiction·to preclude all
effective remedies for a claimed constitutional vio- that the rule advanced a legitimate penological inter- (Fla.'1st DCA 7129/99), and Marquart v. Fla. Pala1ion. The court opined that had the statule pre- est in preventing prisoners from altering documents role Comm 'n, 701 So.2d 674 (FIa. 1st DCA 1997).
Scc: Ponton y. Moore,_ _So.2d-, 24
cluded all effective judicial review, the statule they might have notarized.
Quigley, relying on the plain language of sec. Fla.L.Weekly 02470 (Fla. 1st DCA 10129199).
would then raise a constitutional question. The court
continued by stating the statute merely puts a limita- 120.81 and 12Q.68, Fla. Sial, which state that pristion on a dllntll8e remedy while lcaving open 'de- oners may not seek direct review of agency action
Error to Deny Rehearing Motion Where
c:Il1fl1lory and injunctive remedies. The court de- under sec. 120.63 excepl when proceeding pursuant
Order was Substantially Complied With
to
sec.
120.54(3)
or
(7),
flied
a
direct
appeal
to the
clined to further address the vexing jurisdictional
DCA on the denial of his pelition 10 repeal and.
questions.
Prisoner John Gosman filed a petition for wril
Wilde couched this same argumenl under the guise replace the rule.
The
DCA
look
Ihis
opportunity
to erect an- of mandamus in the circuil court challenging prison
of a equal protection violation under the Fourteenlh
Amendment Wade reasoned that seclion 1997e(e) other hurdle to prisoners' ability 10 challenge rules disciplinary proceedings that were subsequently
dismissed because he failed to comply with a case
impinged on his fundamenlal right to ac:cess the through legilimate means.
In
its
search
for
it way to deny Quigley's ap- management order to file the required certificate
courts. The court responded thaI section 1997e(e)
does not affecl prisoners' righl ofjudicial access. It peal and bar any olher prisoners from directly ap- regarding his prison bank account and amount of
only affects the remedies prisoners may seek. The pealing the denial of sec. 120.54(7) petilions, the deposits for the preceding six months. Gosman.
court asserted that prisoners still retain a DCA ignored the plain language of sec. /20.81(3) upon receiving the order dismissing, filed for a reureasonably adequate opportunity" to seck relief (a). The Court focused instead on whether the DOC hearing and then filed the certificate and accounl
from constitutional violations that do not involve properly handled Quigley's petition to within 30 information. The circuit court, Judge N. Sanders
physical injury, because they may slill file suits for days either: (I) initiate rulemaking, (2) otherwise Sauls, however denied the motion for rehearing and
cleclaratory and il\iunctive relief; prisoners just may comply with the requesled aclion, or (3) deny the Gosman appealed.
petition with written reasons. Since the DOC gave
On appcal (or more likely certiorari review,
not recover mone1lUY damages for such claims.
In sum, the circuit court AFFlRMED the district Quigley written reasons for denying his petition, it although the DCA is silent how it trealed this reo
court's ruling with respect to plaintiffs Locklear, complied with the statutOI)' requirements, according view), the DCA found the circuit court erred in
denying the rehearing motion when: Gosman had
Kilgore, Langcs, and Brinkley. The circuil court 10theDGA.
As to the merits of Quigley's claim that the substantially complied with the case mllJUlllelllCDt
also AFFIRMED the district court's dismissal of
plaintiff Wade's claims for compensatory and puni- rule unconstitutionally impedes prisoners' access to order by filing the required documentation. The
tjve damages. but REMANDED with instructions court, the DCA determined that it would not address DCA Reversed and Remanded the case to the circuit
that the district court consider Wade's claims for same as, according to its inlerpretation of the stat- court.
Sec: Gosman v. Michael Moore, DOC,
declaratory and injunctive relief. The clrcuil court utes, prisontrs cannot directly appeal the denial of
VACATED the district court's dismissal of claims such petitions on the merits, they may only appeal So.2d-, 24 Fla.LWeekly, 02467 (Flalsl DCA
for compensatOry and punitive damages for plain- whether the agency properly handled the pelition, as 10129199).
tiffs Chlldwick. Harris, Cook, Hooks,' Nation, and above.
The DCA concluded that the only avenue for
Error to Dismiss Mandamus
Dailey, and REMANDED for further proceedings
judicial
review of the reasons that the DOC gives in
consistenl with its opinion. Ha"u, Chadwick. et al.
Petition Which Shc.uld
v. Gamer et al., 12 Fla. L. Weekly Fed. CI317 a written denial of sec, 120.S0(7) pelilion is to seek
Have Been Treated as
declaralory
or
other
relief
in
the
circuit
court,
as
was
(11th Cir. SCpl30,1999).
Habeas Corpus
done in &UI v. DOC, 684 So.2d 834 (FlaIstDCA
1996).
(Commenl II is important to note that the
Prisoner Corey SllUIIey filed a petition for writ
This decision, then:fore, forces prisoners to go
Eleventh Circuit declined to address jurisdictional

F.P.L.P. VOLUME 6, ISSUE 1

Page 11

of m:utdnmus al1egmg m pall dial the gmnting of
lehef would enlille him to immcdiate rclease from
prlron (presumably with the reSloralion of ccrtain
gam lime). StMle)' fikd that pelillon In lhe Second
Jud, Cil, Coun allhough he IS In n prison IO<:31ed
Wllhln Ihe Jurisdiclion ofthe !(nth Jud CII Court
CirCUit JUdge Sanders Sauls dismissc:d
Stanle)"s pCllllOn bceause hc flllkd 10 compl)' IIlth
1l11Spc:clfied indigene} prOI-,Slons of sec 57.085.
Fla Sla\ (1997), nnd Stnnle) appealed lhul dis_
Ilus>al
'l"e appeal court delcrmined first oil" !hlll
slI\ce SIMle)' alleged he was entitled 10 Immcdinte
le!c:t~c from pilson lhal hll mandamul pet ilion
should hale heen trealcd as 0l\C for habeas eOlpU5.
for IIh!ch lhere is 110 filmg (ox os indigene) appliealion requirements per An J. Scc. 13, FI~ COnSl..
/IIld SuetI' ", S/{;/I', 7)) So.2d 1117 (Flo 41h OCA
1999),
I\ddiuonall)', thc appeal coon detellnined, lhat
\Ihlle the cirCUli COWl crroncousl)' dismissed lhc
petilion (or a non--~pplrcllble lOdl!!ency requirement, lhc CIrCUli court sull could haw properly dismissed on Ihe grounds that as a (lk facIo) lIabe:as
pclllion It sllould lIa\c be:cn I1lcd in the Circuit court
wherc SIMlc)' \l'as in prison, the Tenlh Jud, Cir.
Coun Ciling Sfe. 79.09, Fla. S!lli. (l997): Alday v.
Smgle/o,y, 719 S02d 1260 (Fla, 1st DCA 1(98).
Thus, Ihe appeal Coort Rc\clSed Md Reman.tled Slllnl(:) '5 ease 10 lhe CUCUI( coun IIlth d,reCllOilS to tnlOlfcl the petition to lhe Tcmh Jud Ci,
Court CIMg /'O:....is " Fla. Parole Cllmm'lI, 697
So 2d 96S, 966 (Fin 1st lX,\ (997)
Sce Slim/e)' I ,\(oo'I',_ _ SO 2d __ . 24 Fl.W
D2506(FI~ 1st DCA 111(199)
Abuse of lJiscrclion
To 1ll5mbs Pelillon
WilhoUI Opportunit), to
ClInte/ Cuc ~lanlgcmcnt
Ordn l)ffififncirs
Whcll priroller Joseph TOOllla filed a pelllinn
for II'rIl of mandamus ngalOst ~lleh3:1 Moore he
also applicd 10 preccde as M indigelll per see
57 08~, Fla Stnl. (1997) HOI\C\C1, Tooma f3iled to
auach a cOP) of his prisoll account Slalemem liS
reqUired by Slatute Md a we managcment order
Issued III the e:tSe. Oee11use of !hnl fmlurc, Second
JUd Cir Coort Judge Sanders Sou', dismissed
Tooma·spelll;OO
TOO1na appealed and olgucd il lI"as on abuse of
dlSCletlon fOI Judgc Sauls 10 ha\'c dismissed the
petillon \1\thoUI provtding Tooma as opponunil) 10
CIlm'ctlhe dcficlcncy. Tllc appeal coort 3groxd "nh
Tooma Md leml)' admonisllcd Judge Sauls IIhele
thc appeal coun hM "pre\'iously and succinetl)'
held" thlll 11U opportunity rnuSl hc plo\'idcd 10 eOIreet sueh eirOIS Marqllar/ \'
Parof~ Comnrn,
701 So.2d 674 (Fla. 1st OCA 1997); .lfa.m:ffo ".
MO(Jt'f', 2~ FI.W Dl 178 (Fin lSi OCA 7nfJI'J9) l"e
appeal eoull Rcvemd and nem:Ulded Tooma's casc
10 thc cirCUli court.
Sce.
Tootnll I' .\foorr
S02d--, 24
Fl.W D2506 (Fla, 1st OCA 11/(199),
FL. 5,0, BlllSt)

sc:e 57.085, Fla, Slat, thai were adopled JUI! three
years ago 10 allegedly curb ch'll Hligtlilon by prisonCIS in stale «Iurts In lhe dictum of this opinion the
high court also louehed on two problem areas lhal
ha\'e plagllCd FIOfida prisoners in rttCnl ycars in
u)'mg to aeecss the couns: slomge of Icgal mattllals
and legal do<:umenl phOIO<:lIp)'Ulg,
TIllS CM<: slarted when prisooer Douglas Jocl.:son file4 a pe1illOll for 1\111 ofmlllldamus in the Fla.
S Ct s«~ing:lll order direeling lhc Dtparlment of
COlTcctions (DOC) 10 puy him money for hiS work In
prison Jaekron IS serving a life sentence fOI mulllple
mUldelS commllted III 1991 Inuially lhe coun
gramed Jackson lealc 10 pIOCttd \l'ith Ihe mandamus
aelion wilhoul oost Later, hOII'el'cr, It carne to lhe
eourt's nnentJon lhat Jackson had nOI fully complicd
wllh lhe requllemenlS of sec, 57.085(7), Fla, Sllll.,
lhal plU\'ldes, In pan, lhm Indigent pnsonelS sc:eking
10 proceed m fOlTlla paupelis m a Flo/ida Court, llIld
"ho hal'e t"ice m lhe preceding) ye;u'S la.~n adJudicaled Of cellificd mdlgem by a Slate Of fedellli court,
muS! mcludcd m lmy new requesl for leal'c 10 pufStle
a new el\'il acuon a IIslmg Md eopy of elleh prior
complaint Md disposition lhereof lhat has be:cn filed
h)' lhe prisoner in any eoun or adjudi~alOl)' forum in
lhc prccedmg 5 )'ClllS,
heks(\n had nol mCI lha! requlrcn'lenl so lhe
eourt I'aealed Its ea.rller ordel on indigene)' lllld instructed Jockson lhal he could ref ile for le:we 10
pro<:«d, if he fully complied with Ihe indigcney
Slntute
JaekSO/1 Ie-filed for rndlgcnq' slalUS 10 proceed, liSlt'd the names of sc:\ernl couns he had lillgated In dunng lhe pasl 5 )'Clll'$, but stilled hc 1\'1\5
unablc to llIUleh thc lequlred case documentation as \l
had been deSllO)'cd. ne coun held lhnl 111IS madeqUJte_ nOllng Ilia! betll'cen 1992 lllld 1998, when the
InSlanl actIOn was filed, Jockson had filed IJ Iklions
as llll mdigenl in the Fla. SCt alone. and since filing
Ihe instMI eMe hcfore lhe court Jackson had filcd II
morc eases In JUSI 111m eoun aillne The court noted
lhallll ailihosc eases Jackson hod b..-en able 10 aVOid
lhe requiremcnts ofsC'C 57.085, Fla Stal., but indieilled thai \\111 no longcl o<:cur.
The coun lhcn enmined lhc 11I~tory be:himl
Ihal smtule, ho" In 1996 lhc Fin, legislnrurc modified
the mdlgcnc)' SIal utes 10 eurh ~fll\'olous lawsuits"' by
pnsonelS 10 require ellhel pnrlialfiling fees and toSlS
for ci\'lllillgation Mdtor liens on prisoncr"s aceounts
for lhe full fees ond costs 10 bto deduetcd per a speci,
fied schedule, III addltiorllo the lisllng Md proouc-

lion of documentation of all cases filed dUling lhe
previous 5 ycars -when s.ccklng new leavc 10 proceed as lin indigenl willi 11\'0 previous indigem adjudic/Ilions wilhin the plSl) re:ars
The COU/1 de/ermmed thai lhe: lisling and plio!ocopy anaehmenl proVISion was lksignd 10 allnw
courts 10 review a priSOllfr's liugatlorul hlSlOf') to
see tf fli\olous pleadings had heen filed be:fore 01
"hethel the same claims had been ralscd beforc
Addilionally, lhe COlln nOlcd Ihol hllvlIIg 10 comply
\l'lIh lhal pro\'ISIOn '·plfSCnl litigiOUS pnsooelS wllh
some procedural h~ldles~ that becomc !OlIfe
'1imc--consum,:lg and COSII)''' fllf such pnsoners to
continuc filing new nelions as alllnd'IlCnl
Howe"cr, lhe eOUrl nOled, one drl\whacl; to that
provision is thol whcn mdigcnt pllSOners hale no
money 10 pay for lhc required photocopies of pasl
aclions, sometimes amounling to lhousands of
pages, the DOC is stili lequlrcd to rl1nl;e Ille ~OPICS
thaI places n ·'uemcndous burden on lhe Ikpartment and, ultimalely, on lhe taxpa}er,- the court
said
Also, lhele is thc llroblent Ihn! the Departmen! mUSI
provid~ nomge space for lihgious plhoners- Icgal
ma!cri3ls or filec 11 potential problrm and dmwn out
prcx:ecdings to delCfllllOe If the Dcpanmenl fllfoxd a
prisonel to dispose of prior pleadlOgs or "hrthelthe
prisoner unnecessarily disposed ofthe pleadbKS,
TIlOse problems, combined Wilh llle partial pllymentfmUfIlhly dcductlOns prOVisions of lhe SIOlule,
requinng lhm all filing fees llnd eosl!i of filing and
serving ewil aellons uilimatel) he paid b) clen
Indigenl pl1sonelS, if and "hen thcy Iccelle mone)'
in Iheir pfl:;on bank tlCCOunlS, hUle unposed a huge:
hurdcli on bolh th~ courts and tile Departmenl
The ~ot1rt eommenlcd lha! addlllonal court ~tolT had
10 be: hired 10 handl~ Ihc I'ldmlnislllllive burden
eauscd hy lhe stalule, Md palmed a PICluTe of FIn S,
CI clerks wlloxling cnrts of stacks of pleadings, of
"trem~ndous siu Md weigh!,'· hac\': and fnnh 10
judges' offices \llIelC indigml prisoner ha,·c had to
eompl)' with the photocopy PIOI "roos of !oCt
57.085(7) Tllcn thcrc is a storagc prohlem of SlIVlOg
those: files for the rceord III clleh case
To ,csolle somc of the problem, lhe courl sug~eslcd
thai a one-time lcduccd filing fl'C for p:tllially indlgCnl prisonclS \Iould probably ha\'c the Slmc elTecl
in leduclOg fril'olous lawsuits in Ihc long run, lind
leduce: lhc llCOOUnling hurden of Ihe eouns and Ihc

r----'------:--"--'-------:--------------,
Criminal Defense Center

nO.,

908 Thomasville Road
Tallahassee, Floridrt 32303
We provide:
Rcpresentlllion in all State and Federol Courts
ldnlle"cl and Appellole level
POSI COlwiclion Relic(
C1cmencyfPnrole Rcview
Free initinl consullnrion
JIIe lire here /0 defelld you 10 lhe fllltesl ami i,lSlIre IMI Justice is done!
•
•
•
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Lynn Alnn Thompson, Esquire.
Roberl A, Rand, Esquire

Indigent I'risoners' Filing
Fec Statu Ie, Call it

Annette Colkmirc, Pnralegal

Adnlinislratil'e Nighlmllrr
In a Iml)' surprising opinion, the Florida Supreme Court "sUfnuou~ly urgc[dllhe Le/llSlalure: 10
further review" lhe mdlgent prisoncr provisions of L..

F.P.L.P. VOLUME 6, ISSUEl

20 I'EARS E.,'(PERIENCEIFORMER PROSECU7VR
call 850·9!l4-HELl J NOWl

'

-'

Page 12

[Gavlick] was qualifled for habitual felony
offender sentencing is equally unavailable
and flawed. The alternallve argument was
thaI [Gavlick] hod a qualifying offinse within
[lVe years olthe commission ofthe offense for
which he was nOw being sentenced The information below upon which [Gavlick} WM being sentenced alleged the commission of the
racketeering offinse between the dates of Ma;y
18. 1989 and Ma;y 2, 1996. The State argu"d
that [Gavlick 'sJ qualifying offense was a burglary conviction. The obvious problem with
using the burglary conviction as a habitual
felony offender qualifying offense is that the
burglary was committed on April 28, 1996,
and the conviction for the burglary occurred
on November 8, 1996. Section 775.084(1).
Florida Stalutes (/995), requires that in order
to be a qualifying I1li!11: felony. "[t]he ftlony
for which the defendant is to be sentenced
Second DCA Admonishes
was committed: ... (b) within 5 years of the
Statewide Prosecutor
dale of convictipn of the defendant's last
In the appeal of this ease. the Second priorftlony... . "
Clearly, the qualifying felony must be a
DCA found that James Anthony Gavlick was
improperly sentenced as an habitual offender. prior felony and the defendant must have
In admonishing the statewide prosecutor, the been convicted ofthe ppior felony within jive
court highlights a couple of significant facts years ofthe dale nfcommission ofthe offense
pertaining to habitual felony offender qualifi- for which the defendant is being sentenced.
The dates alleged for the commission of the
cations:
We tum ... to [Gavlick's] argument that racketeering charge were from Ma;y 18. /989
he was improperly sentenced cu a habitual to Ma;y 2, 1996. The date ofconviction for the
felony offender. We agree that the trial judge burglary offense which was used as a qualifyerred in so sentencing {Gavlick] and reverse ing felony was November 8. 1996. The burand remand for sentencing within the guide- glary conviction was •
not prior to the
lines. In doing so. we are constrained to ob- date of the commission of the offense for
serve with dismay that the representative of which sentence was being imposed The burthe statewide prosecutor who was trial coun- glary offense was therefore not a qualifying
sel for the State urged upon the trial judge a offense. Hall v. State. 738 So.2d 374 (Fla. 1st
habitual felony offender sentence when the DCI! 1999).
See: Gavlick v. State, 740 So.2d 1212
law clearly dictated that such a sentence was
unavailable. Trialjudges, particularly, should (Fla. 2d DCA 1999) (emphasis supplied in
be entitled to reiy upon accurate representa- opinion).
tion ofthe 1m" by trial counsel. The assistant
statewide prosecutor represented to the trial
Prison Releasee Reoffender Act
court Mo alternative bases for [Gavlick 's]
Only Applies to Florida
habitual felony offender sentences, neither of
Correctional Facility Releases
which had merit. The jirst argument preMichael Damien took an appeal to the
sented was Mat [GavlicJ. 's] release from probation wilhin jive years ofthe commission of Fifth DCA from his convictions and sentences
the {instanl} racketeering offense qualified as entered for the charged offenses of resisting
a ."release from a prison sentence or other an officer without violence and resisting an
commitment." It has 'been repeatedly and officer with violence.
clearly held thot in order to sentence as a It's not uncommon for the state to overhabitual felony offender. the ftlony for which charge a criminal defendant in an effort to
the defendant is being sentenced must have have something to offer toward negotiating a
been committed within jive years of his· re- plea (i.e.• dropping or reducing what it knew
lease from prison or other commitment and to be an exaggerated charge to begin with).
not his release from probation. community Unfortunately, the criminal defendant who
control or parole. See Reynolds v. State, 674 exercises the constitutional right to trial by
So.2d ISO (Flo. 2d DCA 1996); Hightower v. jury often ends up being convicted of the exState 6JO So.2d 1220 (Fla. 2d DCA 1994): aggerated charge. Fortunately for Damien, in
Bacon v. State, 620 So.2d 1084 (Fla. lsI. his appeal, the state conceded that· his
DCA 1993); Allen v. State, 487 So.2d So.2d "continuous resistance to an attempt to effect
410 (Fla. 4th DCA 1986).
his arrest will support only one count of ~
The State's alternative theory that sisting even where several 'officers are in-

Department.
However. the combination of problems led
the court to "strenuously urge the Legislature
to further review this statute in an attempt to
remedy what has truly become an administrative nightmare for Florida's court system."
In Douglas Jackson's particular case, the
court dismissed his mandamus petition without prejudice to him to filing a new petition
along with the filing fees or strict compliance
with the indigenc:y statutes and held he will
have to do the same in all future cases he
might file.
See: Jackson v. FDOC,
_So.2d-, 24 FLW S549 (FIB.
11I18/99).

F.P.L.P. VOLUME 6, ISSUE 1 .

volved in the effon to arrest him." Subsequently, the Fifth DCA vacated the misdemeanor conviction entered for resisting an
officer without violence.
At issue, however, is the fact that, in this case,
the state also convinced the trial ~un to
over-sentence Damien. That is, on appeal,
the DCA also concluded that the trail coun
erred in enhancing Damien's sentence under
the "Prison Releasee Reoffender Act."
The "Prison Releasee ReotTender Act," codified at section 775.082. Florida Statutes
(1997), provides in peninent par1:
(8)(0)1. "Prison releasee reoffender" means
any defendant who commits. or attempts to
commit: a. Treason; b. Murder; c. Manslaughter; d. Sexual battery; e. Carjacking; r.
Homo-invasion robbery; g. Robbery; h. Arson; i. Kidnapping; j. Aggravatl.~J assault; k.
Aggravated battery; I. Aggravated stalking;
m. Aircraft piracy; n. Unlawful throwing.
placing, or discharging of a destructive device
or bomb; o. Any felony that involves the use
or threat of physical force or violence against
an individual; p. Armed burglary: q. Burglary
of an occupied structure or dwelling; or r.
Any felony violation of s. 790.07, s. 800.04,
s. 827.03, or s. 827.071; within 3 years of
being released from a state correctional facility operated by the Depmment of Corrections
or a private vendor.
Damicn "was sentenced under the Act based
on his release in 1995 from a Kentucky state
prison." Damien argued that he did not qualify as a prison releasee reoffender because the
plain language of the reoffender statute limits
its application "to recent releases from incarceration with 'the Department of Corrections
or a private vendor.''' Significantly, the DCA
agreed with Damien's position and announced: "By qualifying the phrase 'a state
correctional facility' with the phrase
'operated by the Department of Corrections or
a private vendor'" (emphasis supplied in
opinion), "we are constrained to hold that the
language is limited to a correctional facility
operated by the Department of Corrections of
the State of Florida." See:
Damien v. State, - So.2d -, 24 FLW D2379
(Fla. 5th DCA 10-15-99).
Fifth DCA Finds
Illegal 8.F.0. Sentence
Timothy Summers filed a Rule 3.850
post conviction motion presenting numerous
claims of ineffective assistance of counsel. \:',
The trial court denied the motion on the basis'
that it was both untimely and successive and
an appeal was taken. On appeal, although the
Fifth DCA found that the "motion was inartfully drafted to allege ineffective assistance of
counsel," the CNrt also found that Summers
was illegally sentenced and. therefore. enti(Continued on page 15)

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Page 13

•

POST CONVICTION ATTORNEYS

:::._==~~==:;:.

I

-LOREN D. RHOTON

I

J MlC~AEL V. GIO~ANO:

Attorney At J..aw .

(813) 226-3138

-

,

-

I.

Attorney At Law

(81'3) 69S-261'.!

(813) 228-0070
•

• (;) APPEALS
(;) STATE POST
CONVICTION
(;) SENTENCE
. CORRECTIONS •
(;) FEDERAL
PETITIONS FOR'
WRIT OF
HABEAS CORPUS
(;) NEW TRIALS

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412 East Madison Street
Suite 1111
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F.P.L.P. VOLL!ME 6,/SSUE 1

Page 14

tied to relief.
The problem arose when, on December 16,
1996, Summers was sentenced to 40 years in
prison as an habitual offender for a January
1994 second degree murder with a firearm.
"The second-degree murder conviction was
reclassified as a .life felony based on the jury
verdict finding that Mr. Summers used a firearm in the commission of the crime." In his
Rule 3.850 motion. Summers alleged that his
sentence was iIIeg\llly enhanced under section
775.084, Florida Statutes (the habitual offender
statute), because at the time the murder was
committed "life felonies were not subject to
enhanced sentences under the habitual offender
statute," Indeed, it was not until October I,
1995. that the legislature included life felonies
as crimes for which habitual offender sentences
could be imposed. In an unusually liberal, but
certainly meaningful, opinion coming from the
Fifth DCA, citing Judge v. State, 596 So.2d 73
(Fla. 2d DCA 1991), rev, denied, 613 So.2d 5
(Fla. I 992), the Summers Court found that:

In a 3.800(a) appeal involving an habitual
offender iJsue, the Second District Courl ofAppeal characterized an habilual offender sentence as being illegal i/il exceeds the enhanced
statutory maximum penalty or a prior offense
necessary 10 adjudicate the deftndanl as an
IlGbihUll offrnder does not actually exist. ...
Likewise. an habitual ofJimder sentence imposed for a felony which does not qual{fy for
habitual offender treatment is Illegal because
under the law the courl could not have imposed
it in any circumstance. (Emphasis supplied in
opinion).

In Carter v. State, 704 So.2d 1068 (Fla.
5th DCA 1997). this court held that an improper habitual offender adjudicalion could not
be challenged under a 1800(a) appeal unless
the sentence exceeded the enhanced statutory
maximum penalty. However. our Carter opinion
was issued prior 10 State Y. Mancino. 714 So.2d
429 (Fla.1998). which expanded the remedy of
Rule 1800(a) to include jail credit issues where
an e"or is clear on the face ofthe record In
Carter. this court followed former precedent
which held that only a sentence that exceeds the
statutory maximum may be corrected pursuant
to Rule 3.800(a). However. if the supreme court
allows a jail credit e"or apparent on the face
ofthe record to be co"ected under Rule 1800
(a). surely an improper habitual offender classification. also apparent from -the record, could
and should be remedied under Rule 3.800(a) or
Rule 3.850.
The case was REVERSED AND REMANDED for the trial court to resentence Summers on the second degree murder conviction.
See: Summers v. State. 24 FLW 02606 (Fla. 5th
DCA, 11-19-99).
[Comment: There is a large body of case law
decisions indicating that a "life felony" committed prior to October I, 1995, is not subject to an
habitual offender enhancement. Nonetheless, I

FP.L.P. VOLUME 6, ISSUE 1

found this' particular case very interesting
because it was the Fifth DCA, which I often
considered to be an extremely conservative
court, that;found the claim cognizable in a
rule 3.850', :motion. I found it even more
interesting 'in light of the fact that the Fifth
DCA actually reversed the case even
though the motion was initially denied by
the trial '~urt as being both untimely and
successive. -Not long ago the Fifth DCA
had, in ~y. opinion, erroneously concluded
that no sentencing error should be considered "fundamental error." Maddox v. State,
708 So.2d 617 (Fla. 5th DCA 1998). Although it is still early, it is hoped that the
decision entered in Summers is a true indication that the Fifth DCA is making a sincere effort to. shy away from its extremely
conservative decision making process, bm]
PRR Does Not Apply To
Burglary or An Unoccupied
Dwelling
In this case, the State appealed from the
trial court's decision not to sentence Stanely
Huggins under the Prison Releasee Reof
fender Act (PRR). Huggins. pursuant to a
plea of guilty, was adjudicated guilty for the
offense of burglary to an unoccupied dwelling. Prior to the trial court accepting Huggins' plea, the State moved the court to find
that Huggins qualified for sentencing under
the PRR. The trial court ruled that "burglary
of an unoccupied dwelling was not one of
the enumerated offenses, and thus, the PRR
did not apply to Huggins." The court imposed a 55-month state prison tenn pursuant to the sentencing guidelines. "Had Huggins been sentenced under the PAA, the trial
court would have been required to sentence
him to a mandatory sentence of fifteen
years...."
On appeal, the Fourth DCA "was called
upon to apply the principles of statulory
construction." Quoting our Florida Supreme
Court's decision entered in Perkins v. State,
which holds:

Florida Statutes (1997), modifies both structure and dwelling. That is, the DCA rejected
the State's position that the PRR applies
whe~er the dwelling is occllpied or not. The
Huggins Court found that "(ut is not unreasonable to conclude that since the legislature did
not deem that burglary of an occupied conveyance was a serious enough offense to warrant
inclusion in the PRR, then burglary of an unoccupied dwelling also does not reach the
threshold of warranting inclusion in the PRR."
The Huggins Court held that:

Due process requires that before a defendant such as Huggins can be subjected to
a mandatory sentence 0/ ftfteen years.
instead o/the 55-month sentence he receivedfrom the trial court, the legislature
must clearly and unambiguously provide
for such punishment in the PRR. If the
legislature did not intend lor the word
"occupied" to modify dwelling. it could
have simply stated: "Burglary ofa dwelling or occupied structure. " The /ailure to
.do so creates an ambiguity which is susceptible to differing constructions. Because o/the rule oflenity codified in section 775.021(/). Florida Statutes (/997)
[footnote omitted], we conclude that the
word "occupied" found in section
775.082(8)(a)(I)(q) modifies both structure and dwelling. Since Huggins was
convicted of burglary 0/ an unoccupied
dwelling. we affirm the trial court's decision to sentence Huggins to 55 months in
the Department 0/ Corrections instead of
the mandatory sentence 0/ fifteen years
reqUired under the PRR.

To the extent that its previous opinions
entered in Scott v. State, 721 So.2d 1245
(Fla. 4th DCA 1998), State v. Linton. 736
So.2d 91 (Fla. 4th DCA 1999, and Wallace v. State, 738 So.2d 972 (Fla. 4th
DCA 1999), conflicted with its En Bane
decision entered in Huggins' case, the
Fourth DCA receded from those deciOne of the most fUndamental princi- sions. The Huggins Court also certified ...
ples of Florida law is that penal statutes conflict with the Second DCA's decision
must be strictly construed according to entered in State v. White, 736 So.2d 123r
their leller. This principle ultimately rests . (Fla. 2d DCA 1999), which relied 'in part
on the due process requirement that criminal statutes must say with some precision on the decision entered in Scott.' The
exactly what is prohibited Words and Fourth DCA concluded-that, in order to
meanings beyond the literal language may qualify under the PRR. the burglary must
not be entertained nor may vagueness be- be to an occupied structure or occupied
come a reason for broadening a penal stat- dwelling. Ultimately, the DCA affirmed
ute.
the trial court's decision to sentence Hug576 So.2d 1310, at 1312 (Fla.1991) gins to it 55-month prison term under
(citations omitted).
the sentencing guidelines. See: State v..
In an En Bane decision, the DCA deterHuggins. 24 FLW D2544 (pIa. 4th DCA.,
mined that the word "occupied." -set out in
the PRR, codified at § 775,082(8)(a)(I)(q). II-I0-99)(En Bane).

Page 15

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Florida Department or Corrections
2601 Blair Stone Rd.
Tallahassee FL 32399-2500
(850) 488-5021
Web Site: www.dc.stntc.f1.Us

Florida Correclions Commission

Office of the Governor

2601 alair Stone Rd.

PL 05 The Capitol
Tallahassce FL 32399-0001
(850) 488-2272

Tallahassee FL 32399-2500
(850)413-9330
Fax (850)413-9141
EMnil: fcorcum@mail.dc.SlatC.n.us

Web Site: www.dOSslnle.n.usJfgllslagcncleslfcc

moe FAMILY OMBUDSMAN
The FDOC has allegedly created n new position in me
central office to llddress complnmts and provide nssis·
lance to prisoner's families and fnends. Sylvia Williams IS the FDOC employee appointed as the:
-farml) Ombudsl1IDI1." According to Ms. Wllllltms,
"'The Ombudsman works as n medlluor bclw«n families. Inmates, Wid the depanmclll to reach Ihe most
effective resolution" The FDOC Family Services

Hotlme is toll·free 1-888·558-6488

moc SPA

ISH IIELPLINE

The FDOC has also crented a help hne to assist Spnnish-speaking CItizens obtain mformation from the
depanmenl Tina Ihnton IS the FOOC emplo)cc in
this po511lOn Cont.,et, 1-800.-410-4248
[plcObC Inform rPLP of you have an)' problem.s \\ith

The Florida Corrections Commission is
composed of eiglll citizens appoinred by the
governor to oversee the Florida Departlllent
of Corrections, advise the governor and
legislAture on correctional issues. and
promote public education about the
correctional system in
Florida
The
Commissioll holds regular meetings around
the !natc which the public may attend to
provide
input on issues
and problems
affccting the correctional systcm in Florida.
Pri:Wllers families and friends IIrc encournged
to contact the Commission to advise them of
problem
arcas.
The
ommissioll
is
independent of the FDOC and is interested in
public participstion and
comments
concerning the oversight of thc FUOC

Florida Resource Organizations

Floridn InSlilutionul Legal crvices
IIIO-C IV 8th Ave.
Gainesville FL 3260 I
(3"52)955-2260
Fax: (352)955.2189
EMail: fils@afn.org
Web Site: www.nfn.orgllilsl

Chief Inspector Geneml
922-4637
Citilcn'~ AsSistance Admin..............
..48S· 7146
CommIssion/Government i\ccounUlblllty
to the People.. ... .
9n-6907
Office of Executive Clemency
260 I Blair tone Rd,
Bldg. C. Room 229
Tallahassee FL 32399·2450
(850)488-2952
Coordinator. Janet Keels

Families with Loved
ones In Prison
710 Flanders Ave.
Daytona Beh FL 32114
(904)254-8453
EMail: Ilip@afn.org
Web Sile: www.arn.orglflip

Florida Parole/Probation Commission
260 I Bloir Stone Rd., Bldg C
Tallahassee FL 32399-2450
(850) 488-1655

Restorative Justice Ministry Network
P.O. Box 819
Ocala. FL 34478
(352) 369-5055
Web: www.rjmn.net
Email: Bcmic@rjmn.nct

DcpartmenL of Law Enforcement
P.O. Bo. 1489
Tallahassee FL 32302
(850)488·7880
Web ile: W\\'\\.fdle.statc,n.us

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F.P_L.P. VOLUME 6, ISSUE 1

Fydor Dostoyevsk)'
Crime and
Punishment

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Page 16