'. .

'~---:::::-

FLORIDA PRISON LEGAL

e.fS ~;ectives
ISSN## 1091-8094

VOLUME 9, ISSUE 1

PRISON
VISITATION

IN JEOPARDY
by B<;>b Posey
,

.

The U.S. Supreme Court said
Dec..2 that it will decide if prisoners
have a constitutional 'right .to visit
with minor relatives arid other
potential visitors in a case that could
have far-reaching, and ominous
implications for al1 prisoners, their
families, and other prison visitors
around the country.
The case. now before the
high court originated in Michigan.
where in 1995, amid the "get tough"
on prisoners' frenzy, prison officials
implemented some of the harshest
and most prohibitive prison visiting
policies in the U.S. Among those
policies was a, ban on visits from all
minors, including relatives, except
children and grandchildren (which
also would not be al10wed if parental
rights are terminated). Thepolicies
also banned all visits by former

prisoners except immediate family
members; required all children
al10wed to visit to be accompanied
by a parent or. legal guardian; and
included a permanent ban on al1
visits, excluding attorneys and
clergy, for prisoners who had two or
more in-prison substance abuse
violations.
When the Michigan' rules
were imposed in 1995 prisOl~ers,
ipcluding
Michelle
Bazzetta,
challenged the bans claiming various .
The'
constitutional violations.'
MODC responded to the suit arguing
that the. bans only applied to contact
visits and that prisoners' have no
absolute right to contact visits.
Under those claimed circumstances
the fedeml district court ruled in
favor of p~ison officials am! the
appeals court upheld that ruling.
Further proceedings in the case;
however, lead. the appeals court ,to
determine that, "Subsequently, it
turned out that the department
seriously misled us and was applying
the regulations to al1 visits, contact
and non-contact." The prisoners ~en

~09C Secretary Resigns
e~ FDOC Secretary Named

Mad Rules Formally Challenged
,Post Conviction Comer
N~table Cases
:
Pnsoners and Aramark ;:.:~
UN111lD FOR PIUSON IIEI'OI\M

JAN/FEB 2003
rechallenged the policies as they
applied to non-contact visits.
Reversing . its
previous'
stance the district court, following a
bench trial, struck down the policies
as applied, on the grounds thatthey
violated prisoners' First Amendment
right of association and did not
advance a legitimate penological
interest. The court also held that the
permanent ban on all visits for two or
more substance abuse infractions
violated not only the First
Amendment, 1;lUt also the Eight
Amendment prohibition on cruel and
unusual
punishment
and
the
Fourteenth Amendment guarantee of
Due Process.
MODC
prison
officials
appealed that decision and the
appeals court, in a strongly worded
opinion. upheld the district court and
prisoners' position.
The MDOC
argued .that neither prisoners nor
their familieS have any right to
visitation - contact or non-contact.
Prison officials claimed that letterwriting and telephone calls were
sufficient substitutes for visits and

3
5
7

:

:

;

10
14
1i

------~--------- FLORIDA PRISON LEGAL

FLORIDA PRISON LEGAL

PERSPECTIVES
P.O. Box 666-387
Chuluota, Florida 32766
Publishing Division of:

FLORIDA PRISONERS' LEGAL AID
ORG.,INC .
A SO I(c)(3) Non Profit Organization
Fax (407) S68.()200

Email: fplp@aol.com
Website: www.fplao.org

FPLAO DIRECTORS
Teresa A. Bums-Posey
Bob G. Posey, CPL
David W. Bauer. Esq.
Loren D. Rhoton, Esq.
Oscar Hanson. CPL
linda Hanson

FPLPSTAFF
Publisher
Editor
Co-editor
Research
Administrative Assistant

Teresa A. Bums-Posey
DobG. PoSey
Oscar Hanson
Sheni Johnson

FPLP ADVISORY BOARD
William Van Poyck
Philip Bagley-Terry Vauglln
Michael 1Junbrix-James Quigley
Linda GOlllieb-Susan Manning
Enrique Diaz-Gene SalSer
Michael Palmer-Mark Sherwood .
Trish Mills

FLORIDA PRISON LEGAL pERSI'EC11VES(FPLI') it plblisbed
up 10 '"' lima a yw by Florida 1'Iisanen' LepI Aid ~
I... (FPLAO~ 15232 East CcIclli&I Drlw. 0Jlancl0, FL 32826-5134.
mailizlaaddn:u: P.O. Box 660-387. CbuIu«.. FL32766.
FPLP is a lICn profu pull/ica1ion rocusuta 00 1110 Florida prison aid

crimiIlaI juIlice tyIlCm1 FPLP proYitIa a wIlicIo rc< .......
infllllNlic1l, ami _Ill'=-a pri1on<n, 1lldr familia, ftlcodt,
kmd ClIl<lI mllhe..,.nJ puhlie cfFlorida.
.
RaIuction afcrime Illd ~ maiIII_ arfmiJy IieI, civil

riBJlb, improWtg CClldiIians ar aaa1lacmclI1. JlIOlllOll"8 ~ CXIUtI
access fbr prisoucn, aid ~ IlXlOUDlIbiIily cfprisaft aft1cIaIt
are GIl Wucsl!lo FPLP it dcsisnod 10 odclreu.
FPLP's lICO auamcy wlunt.... ttatr CIIlIIIlI tapCllIlIlO requests far
ksaI adW:e. Due la ..w..rnc ar IIIIiI that is rcc:c:iml mI wIwlleer
110ft' IimitaIi<ms. olI eonapanclCllCll that· is rcc:c:iml CIlUIOI be
rapaoded 10, but olIlll1i1 doa receive iIIdividua1lUC1lli<m.
Pamitaiaa is IIJIllUd 10 reprillI _cN1 oppariDs in FPLP that
'doa ... indi<ot. it is copyrilll'led poyIded that FPLP IlId Ill)'
lncIItated llUlhar are idcIlllllcd in tho tqlIiDt .aId a Copy cf tho
pullIi<:IIian in wllIcIIlhe maleIl&Ils puhIiIh/d Is pmvidcd to 1110 FPLP
pubtishcr.
The mataiaI in FPLp oIJauId lIOI be tdled Oft u IIl1lIoriUli¥e
cila1iOlI mI may nat C<lllIain MllIlcicm infannaIian 10 dal with a
IcgaI problem.
FPLP is 1UI01111licaJ1y tclIl 10 all lIlOGlhen cf FPLAO. I.... u •
tnallbcnI1ip beftefil. McmbenIlip dua fbr FPLAO. I.... II1II Oft •
yarly bait mI 110 59 far priso..... $15 far f'amiIy
lII<IllbcnIIlIl!M<luIIs. .SJO fbr lIIOnIeyIIptcfeosianak, IlId $60 far
busilIasaI'UISliluliaaafllrplliDtiant. F."my lIlOGlhen at IoYcd .....
cfprisaocn ""'" are IIlIIhIe 10 If!llnIlhe buic mcmbcnhip duel may
........membcnhip fbr Ill)' liz<! dOlIatian tbat thay _Ill'anl.

Perspectives - - - - - - - - - - - - - - - -

that they had a legitimate interest in
the trend of the last 15 years by the
reducing the number of visitors,
· majority of the high' Court to rule in
preventing children from becoming
favor of prison officials where the
"comfortable" with prisons or' rights of prisoners and their families
prisoners,
stopping drugs and
and associates are concerned.
contraband being smuggled into
Contrary to most prison
prison by visitors, and protecting
officials' belief that visitation is a
children from harm by prisoners.· · privilege, not a right, the Supreme
The appeal court was not persuaded
Court has previously simply. stated
by those arguments and held that
that prisoner:s have no "absolute
"prisoners ·do retain a limited right to
right" to visitation, indicating that
freedom of association - specifically · there is at least some right to
visitation. The problem is that the
non-contact visits with intimate
Court has never defined. the limits to
associates
even
while
that. right. The last time.the Supreme
incarcerated."
Court handled a major prison
Examining the trial record,
visitation case was in 1989, which
the appeals court found that banning
also involved a case from the Sixth
by
children' was
an
visits
Circuit Court of Appeals. The Court
"exaggerated response to perceived
upheld Kentucky DOC prison
problems in prison visitation:" And
visiting restrictions in that case.
the rules, according to the court,
Kentucky Dept. of Corrections v.
ap'peared to be designed to end visits,
Thompson, 109 S.Ct. 1904 (1989).
not. better manage them, as prison
And since then· there have been
officials had claimed. The appeals
several other major prison conditions
court was equally unconvinced of the
cases where the high Court has
legitimacy of the other visiting bans
fleshed out legal standards that.
imposed by the MDOC policies.
almost foreordain a rmding in favor
The appeals court sharply
of
the constitutionality of almost any
criticized the MDOC, stating that the
policies were ."haphazard" and
prison regulation and practice as long
accusing . prison .officials
of
as prison officials say they are
necessary. The Court has at. times
"defend[ing]. these policies not with
severely lambasted lower federal
reasoned arguments, but with
courts for presuming to question the
misdirection and demands that
"deference owed to prison officials'
federal courts defer blindly to
expertise in prison management."
corrections officials."
Lower courts on the other hand often
Concluding, the appeals
have seemed to realize they are
court stated, "Under our constitution,
perhaps the only check on prison.
even those lawfully imprisoned for
officials' who don't recognize
serious
crimes
retain
some
prisoners or their families or
constitutional rights. In the present
associates
as
having
any
case, the regulations fall below
minimum standards of decency owed, . constitutional rights.
. The'
by civilized society to· those it has
Supreme' Court's
decision in this new visitation case
incarcerated." The appeals court
can be expected within the next few
totally upheld the district court's
months and will. have an impact on
decision that the policies were
Already 11
prisons nationwide.
unconstitutional as applied.
other states, Alabama, Colorado,
Not satisfied, the MDOC
Idaho,
Indiana,
Mississippi,
sought review of the case from the
Nebraska,' Nevada, New Hampshire,
U.S, Supreme Court, which has now
Oklahoma, South Dakota, and Texas,
agreed to take the case, a move
have expressed support for the
indicating that the high court does
not agree with the decision of the
Michigan DOC to the Supreme
lower courts. Especially troubling is
Court. Colorado Attorney General

a

2--:-------------

_

- - - - - - - - - - - - - - - FLORiDA PRISON LEGAL

Ken Salazar told the Court that the
appeals court decision "is potentially
disruptive to prison management
across the country."
The true potential in this
case is for the disruption and possible
destruction of prison visitation and
family relationships if the Supreme
Court continues its trend of retreating
from protecting prisoners from the
arbitrary, capricious, and often
vindictive whims· of those prison
officials who have taken it upon
themselves to fashion. additional
punishments on top of incarceration.
See: Bazzetta v. McGinnis, 286 F.3d
311 (6th Cir. 2002); Supreme Court,
Overton v. Bazzetta, Case No. 02-94.
[Note: The cases in the above article
can be located on the Internet at:

www.find/dw.com/casecode.
Information on visiting in Florida
found
at:
prisons
can
be

www.fp/ao.orgiFami/vlssuesl-

FDOC
SECRETARY
RESIGNS
In November, shortly after winning
the election to be Florida's governor
for another four years, Jeb Bush
asked all agency heads and almost
400
other. top
management
employees . to submit voluntary
resignations' while he conducted a
review of the state's agencies. On
Dec. 4 Bush confumed he was
accepting the resignation of at least
one agency head, the one submitted
by Corrections SecretaryMichael W.
Moore. Moore's termination became
effective Jan. 7, Inauguration Day.
Although Moore tried to
~ it appear the resignation was
his idea, essentially he was let go
after being one of the most
controversial figures in Bush's
administration over the past four
years. Only two weeks before Bush
accepted his resignation, Moore told

Perspectives - - - - - - - - - - - - - - -

reporters that he intended to remain
as the FDOC Secretary for the four
years of Bush's next term.
ul want to stay here another
four years. We have a lot more to
do," Moore said Nov. 21. "I like
working for the governor."
.The
head
of Bush's
transition team was even caught by
surprise. Bay County Sheriff Guy
Tunnell, chairman of the team, said
they meet with Moore on Dec. 3 to
start a review of the Department of
Corrections and Moore made no
mention or gave any indication that
he intended to be leaving the
department.
Moore's tenure as boss of
the Florida's prison system was
rocky from the start. An outsider,
Moore was brought in by Bush from
another state to run the prisQn system
and was under fire by prison
officials, guards, and the Police
.Benevolent Association almost from
the beginning over his management
style and intent to reorganize the
department. Hired by Bush in 1999,
Moore came to Florida from .South
Carolina where he ran that state's
prison system for two years. He was
forced out of that job by SC
legislators because of his brash "get
tough" policies. Before that he had
worked 28 years with the Te?,&s
Department of Corrections.
. While head of the Florida
prison system for almost four years,
Moore faced constant criticism.
Many state legislators were upset
that Bush had hired someone from
outside the. state to run the agency
where there were people well
qualified to do the job who were
Floridians. Moore's next hurdle, that
he
never
got
over,
was
underestimating
the
entrenched
career service employees at the
department's central office. When
threatened with reorganization, top
and mid-level managers didn't take
long to show Moore who really runs
the department and convince hIm
that he either works with them or

fmds himself standing alone.
Moore eventually had to
replace his deputy secretary, Mike
Wolf, who he had brought from
South Carolina with him and whom
central office employees labeled a
"hatchet man," with Richard Dugger,
a long time FDOC administrator. He
was also accused of giving pay raises
to some officials to further quieten
grumbling.

Attitude Problems
Within months of Moore
taking over control of the FDOC the
system found itself facing a crisis.
him
was
Moore's
Preceding
reputation for causing prison riots in
South Carolina and his expressed
"get
tough
on
prisoners"
management style. He set the tone of
his administration by publicly
announcing that he calls prisoners
"offenders," notuinmates," which
was a direct violation of established
Department rules. It didn't take long
for Moore's attitude to percolate.
down through the prison ranks,
culminating in July 1999 with the
brutal beating death of death-row
prisoner Frank Valdes by a gang of
prison guards at Florida State Prison.
Several of the guards were charged
with murder but were later acquitted
at a trial that many critics thought
was deliberately botched by state
prosecutors. [See FPLP, Vol. 8, Iss.
2]

That trial did reveal that
Valdes was not the only case of
prisoner abuse in Florida. He was
apparently killed for protesting the
almost daily beatings of other
prisoners by guards at Florida State
Prison.
Ironically, Moore called
before the Legislature to explain why
guards had literally stomped Valdes
to death (while he was handcuffed
and shackled), and the increasing
violence by guards against prisoners,
defended the guards' actions by
rolling out a display of weapons that
prisoners have made over the years
and explaining what a dangerous job

3-------------

_

- - - - - - - - - - - - - - , FLORIDA PRISON LEGAL

guards have.
Moore also came under fire
by state auditors who were critical of
his efforts to reorganize the
department· Auditors claim that
Moore was not saving money and
was creating distrust among
employees.
Legislators accused
Moore of trying to muzzle
employees and making widespread
changes without consulting the
Legislature.
Additional heat was placed
on Moore beh~d charges of racism
in the department and when AfricanAmerican guards sued the state
claiming that they were retaliated
against by the department for.
complaining about racism.
Under Moore's leadership,
the department was forced to settle a
major class-action lawsuit against
prisoners being confined for years, in
some cases, in sensory-depriving
solitary confmement: The suit led to
costly changes in the department and
a significant revision of the
department's Close Management
Confinement program.
It didn't help Moore any
when in 2002 another suit was filed
claiming that prison guards have
been abusing the use of chemical
agents on prisoners in confmement,
in cases using such chemicals,
primarily pepper spray, without a
valid reason and causing severe
burns and physical problems.
Under Moore. anti.family
policies increased or were expanded.
Latitude was granted by Moore to
top officials in the central office to
increase the burden on prisoners'
families through new restrictions on
mail, increased canteen prices, and
collect telephone rates. Spending
from the Inmate Welfare Trust Fund
that is largely derived from profits
off money furnished by families, on
visiting parks and family services
decreased while Moore held the top
position. And new visiting policies
were adopted creating increased
restrictions and prohibitions on
family visitation.

Perspectives - - - - - - - - - - - - - -

Where to From Here
On the same day that
Moore's resignation was accepted,
speculation immediately started over
who would replace, him. The two top
contenders
were
identified
unofficially to be Deputy Secretary
Richard Dugger and FDOC Regional.
Director James Crosby. In Dugger's
favor is that he once held the
secretary position for two years in
the early 199050 but was removed
from that position by former Gov.
Lawton
Chiles
after
Dugger
supported Jeb Bush's losing run for
governor against Chiles in 1994.
Crosby's consideration for
the position could be more
problematic. Crosby is not well
liked among prison employees, many
of whom feel he goes to extremes
and refuses to listen to suggestions or
advice from more experienced
correctional personnel. Crosby also
was the warden at Florida State
Prison when Frank Valdes was
. murdered. Instead of being fired,
however, he was promoted to
regional director in a typical tactic
that the department often employs to
up
incompetence
or
cover
wrongdoing by prison officials,
according
to
some
prisoner
advocates. On Crosby's side is that
he's
politically
well-connected,
having acted as a Republican
delegate for President George W.
Bush at the 2000 GOP Convention,
and making campaign appearances
for Jeb Bush.
Currently the Department of
Corrections has almost' 26,000
employees and custody over more
than 74,000 prisoners in 131
institutions.
Whoever replaces
Moore will certainly have a larger
job on their haitds. Hopefully they
will have learned from Moore's
mistake of giving advance warning
to those in the Department who need
to be replaced and will follow Bush's
lead - make them all turn in a
resignation and then get rid of the
bad apples in a quick, decisive cut.
Only in that way will a new secretary

become more than a figurehead who
,catches the blame for the actions of a
rotten core of subordinates.•

On hlsW8tch
MIchael Moore has been under constant fire since1Bldng .
the job In 1999 of chief of Rorida's prisons and Its nearty
26,000 employees. Here's a
look at some of the things that
have happened during his tenure.
• The beating death In July
1999 of convicted murderer
Frank Valdes at Aorida State
Prison, which led to the arrest
of correctional officers.The of- .
.fleers were acquitted but they
lost their Jobs.
• The same month,AJlen Lee
Davis b1edfrorn the nosewhen
he was executBd in the electric
chair. The grisly execution
played arole InRorida switch·
ing to lethafinJection.
• Persistent criticism about
racism among guards, IncludIng allegations of aracist clique
.of officers who wear knotted
cord key chains.
• His decision to close a prison for the mentally min Chattahoochee In order to house sex
offenders who are deemed too
dangerous to return to society
created an outrage because
the prison was acrossthe
Slr8etfrorn an e1ementBry .
school. Gov. Bush killed the .
plan.
• His reorganization of the

o

hugeprisonbu~~

raised astinkwhen some midlevel managers with exp8fJded
responsibilities got raises of as
'much as 70 percent, WhOe cor·
rectfonal ofllcers, who actually
guard 1118 prisoners, got no
pay Increase•.
• An audit In 2000 showed
that nearty 8 quarter of criminal
offenders sentenced to probsdon had escaped supervision.

4 -----------------

--

:-... :~

FLORIDA PRISON LEGAL

Perspectives - - - - - : - - - - - - - - - - - - -

NEWFDOC
SECRETARY
NAMED

TALLAHASSEE - James Crosby Jr. was selected as the
new secretary of the Florida Department of Corrections
(FDOC) by Gov. Jeb Bush on January 6. He must still be
confirmed in the position by the Florida Senate. Crosby
for the past few· years' has been serving as an FDOC
regional director, which position he was promoted to by
former Secretary Michael Moore r.fter Crosby gained
notoriety as being the warden in charge of Florida State
prison in 1999 when death row prisoner Frank Valdes was
brutally murdered by a gang of prison guards.
Cryptically, since the prison system has been running
unusually smooth for the past year or so, Gov. Bush
explained picking Crosby as secretary by saying he would
have a "calming influence" over the prison system that has
been in upheaval under former Secretary Moore, who was
resigned by Bush in December.
Crosby, 50, who has worked within the FOOC for 27
years, saId he was honored to be picked and that he would
concentrate on improving communication between the
central office in Tallahassee and lower level staff. "We
need to make sure people know what they're responsible
for and hold them accountable," said Crosby.
In the new position, Crosby will make $110,000 a year
and will have control over the almost 74,000 men and
women serving time in the state's 121 prisons and work
camps and the additional 150,000 serving probation in
Florida. He will oversee 24,000 employees and a budget
in excess of$1.7 billion.
"Until people quit being bad, we're going to needmore
prisons," Crosby commented at the news conference
called to announce his appointment. Both Crosby and
Bush credited prisons with a drop in crime but noted that
laws mandating minimum sentences and requiring
prisoners to serve 85% of their sentences will require new
prisons. They did not say how many or when they would
be built.
Crosby, who was born in Starke, home of Florida State
Prison and located at the epicenter of the region known as
the "Triangle", a rural area in North Central Florida where
the economy is largely based on the prison industry, began
his career with the FDOC in 1975 as a classification
officer.

Working his way up through the system, Crosby first.
became a superintendent at Lancaster CI, a youthful
offender prison. He was transferred to Cross City CI in
1990, following.one of the worst riots in a Florida prison.
Eventually seven guards went to prison behind the Cross
City CI riot that ended with prison guards going berserk
and beating prisoners in mass after they had been
restrained.
In . 1992 Crosby was again transferred, becoming
superintendent at New River CI, where under his watch in
1994 a gauntlet of prison guards beat a bus10ad of
prisO'ners following a disturbance. Thirteen of the guards
were later suspended for 60 days, none were fired.
Then in 1998 Crosby became warden of Florida State
Prison. While warden there conditions became much
worse and beatings and abuse of prisoners became more
frequent, according to widespread and consistent reports
from prisoners there during that time. The culmination
was death row prisoner Frank Valdes being literally beat
and stomped to death by prison guards in 1999. Instead of
being disciplined, Crosby was promoted to an FDOC
Regional Director position. Gov. Bush commented at
Crosby's appointment as secretary that Crosby, who was
reportedly on vacation at the time of Valdes' murder,
acted appropriately as warden ofF.S.P.
. "I'm confident that Jimmy's innovative style of
leadership and ability to relate to every level of the
department will be exactly what the doctor ordered," Bush
said. _

5--------------

- - - - , . . . . - - - - - - - - - - - - - - , . - - FLORIDA PRISON LEGAL

ARE YOU
ACTUALLY
INNOCENT?
by Oscar Hanson
As an institutional law clerk
I see my fair share of fellow
prisoners who want to claim their
actual, innocence.
While,1 am
certainly not in the position to
• evaluate and determine 'a prisoner's
actual innocence claim, 1 can provide
some ' enlightenment
on
what
constitutes actual innocence~
Before continuing, it is
important to distinguish between
substantive actual innocence and
procedural actual innocence claims.
A substantive actual innocence claim
is relatively straightforward. These
are the claims that say, "I didn't do
it, therefore, set me free." 'These
substantive actual innocence claims
are the subject of many state post
conviction motions based on newly
discovered evidence. Florida Rule of '
Criminal
procedure 3.850(b)(I)
permits a prisoner to bring a· motion
for post conviction relief at any time
based on newly discovered evidence
if "the facts on which the claim is
predicated :were unknown toth~
movant or the movant's attorney and
could not have been' ascertained by
the exercise of due diligence." These
substantive claims for
actual
innocence, however, cannot be the
basis for relief in a federal habeas
petition,
absent
a
federal
constitutional error. See the United
States Supreme Court decision in
He"era v. Collins, 506 U;S. 390,
400 (1993), which states in pertinent
part, claims of actual innocence
based on newly discovered evidence
have never been held to state' a
ground for federal habeas corpus
relief absent
an
independent
constitutional violation occurring' in
the
underlying state criminal
proCeeding.
Accordingly,' a
habeas
petitioner, challenging his state court
conviction,
cannot
raise
a.

PerspectIves

freestanding, substantive 'claim for
actual innocence in' the federal
forum. Interestingly, however, the
Supreme Court in Herrera left open
the possibility that, "in a capital case
a truly persuasive demonstration of
'actual innocence' made after trial
would render the execution of a
defendant
unconstitutional,
and
warrant federal habeas relief if there
was no state avenue open to process
such a claim."
Substantive,
freestanding,
actual
innocence
claims
are
distinguishable,
however,
from
procedural actual innocence claims.
Procedl1;ral' claims are not the "I
didn't do it, set me free" claims, but
ratner, they are the "I didn't do it,
therefore it would be a fundamental
miscarriage of justice if you could
not hear about the constitutional
errors at my trial" claims. In Schlup
v. Deno, 513 U.S. 298 (1995), the
Supreme Court clearly distinguished
substantive and procedural actual
innocence claims. Schlup's claim of
innocence was' not
itself Ii
constitutional claim, but instead a
gateway through which a habeas,
petitioner must pass to have his
otherwise barred constitutional claim
considered on the merits.
As the .Supreme Court
established in Schlup, for a prisoner
to make a colorful claim of actual
innocence, such that a procedural
default will be excused, the prisoner
must "support his allegations of
constitutional error with new reliable
evidence - whether it be exculpatory
scientific
evidence,trustworthy
eyewitness accounts, or critical
physical evidence - that was not
presented at trial. Schlup at ,page
324. The Court, in reviewing this
new reliable evidence, must be
persuaded that "it is more likely than
Qot that no reasonable juror would
have found (the prisoner) guilty
beyond a reasonable doubt."
To meet this standard, a
prisoner is not bound by traditional
rules of admissibility that would
govern at trial.
Rather, "the
emphasis _on 'actual innocence'

allows the reviewing tribunal also to
consider the probative force of
relevant evidence that was neither
excluded or unavailable at trial." It
is important to note the new reliable
evidence of actual innocence does
not necessarily need to be "linked" to
a prisoner's procedurally defaulted
claims. Although Schlup requires
both a .showing that there are
procedurally defaulted claims and a
showing of actual innocence to
excuse the default.
nothing in
Schlup requires a showing that the
evidence of innocence relates to, or
is linked to, the constitutional claims.
The only post-Schlup case in
which a link "requirement" has been
, discussed in the Eastern District of
Virginia case of Weeks- v. Angelone,
4 F.Supp.2d 497 (E.D. Vir. 1998).
Weeks, however, is distinguishable in
that the petitioner was arguing that
he was, "actually innocent'. of the
death penalty, not the crime, and the
district court relied on the pre-Schlup
case of Spencer v. M""ay, '18 F.3d
,229, 236 (4th Cir. 1994) in
. 'determining a link was required.
So keep in mind that a link
between the procedurally defaulted
claim and the new evidence of actual
innocence is not required to open the
gateway. Happy trials. • '

6-----.......;..----------

-fi/Od!riL@-r,eJ;,
·
~
'1
.
F

~Im-,

FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - - _

j
/ ~/[)k DJ; ~ -P::;;;-more

0

MAIL RULES

FORMALLY
CHALLENGED
Citin~ six issues, including
'failure t o comply with
statutory
rulemaking
provisions, invalid exercise
of
delegated
legislative
authority, and failure to
comply with established
constitutional requirements,
on Dec. 2, 2002, Florida
,frisoners'
1&.gal
Aid
Organization Director Teresa
Bums-Posey filed a formal
challenp..with the Division
of Administrative Hearings
against invalidly adopted
mail DIles of the Florida
Department of Correction.')
tFDOC). On Dee. 4 another
.armal challenge against the
same rules was filed by a
small business owner that
provides typing services for
Florida prisoners and more
challenges are expected to be
filed.
The situation with the mail
rules, which FPLP has been covering
(see Vol. 8, Iss. 4 and 6), came to a
nead in November when it was
discovered that the FDOC ignored
several
statutOry'
rulemaking.
requirements to rush adoption and
implementation of new mail rules.
The rules hid been proposed by the
Department to place new restrictions
and rohibitions on routine, I I an
Rrivileg
mall
tween prisoners_
and their outSIde correspQDden~
The FDOC apparently became
frustrated with almost 7 months of
informal challenges to the proposed
rules by FPLAO and other outside
parties.
The
rules
involve
a
prohibition on prisoners receiving

•

than 5 pages of written
and other correspondents. This is
materials (not counting actual letter
happening where mail is being
rejected by prison officials and
pages) or photographs in routine
mail, unless an exception is granted
immediately returned to senders with
by the warden for legal, medical or
a notice of the rejection but without
"other significant issues" written
an opportunity or procedure in place
material (the. warden cannot grant an
to allow such people to: (I) appeal
exception to the 5 page limit for
the rejection to someone other than
general reading or entertainment
the individual who made the initial
materials). The rules also prohibit
decision to reject, (2) before the mail
prisoners from receiving any written
is returned so the appeal reviewer
materials in privileged mail (from
may examine the mail item in
government officials or the media)
question. The petition asserts such a
except sctual correspondence to the
procedure must be adopted by rule
prisoner.
And the rules would
and implemented to avoid arbitrary,
prohibit prisoners from receiving
mistaken, or unnecessary rejections
"non-legal" written materials in legal
by a state agency of mail that is
mail.
.
protected by the First Amendment.
The FDOC has 30 days to
The rules, which FPLAO's
Bums-Posey
maintains
were
either grant the petition and initiate
invalidly adopted, were implemented
rulemaking to adopt an appeal.
at most Florida prisons on Dec. 5.
procedure or deny the petition with
written reasons.. If denied, FPLAO,
resulhng. so far, in thousands of
FPLP and Bums-Posey plan to
letters being returned to send~
Bums-Posey has said that
pursue this serious issue in court.
these rules cannot be allowed to
stand, that they'were adopted through
[Note: Further information will be
intentional violations of certain
provided in FPLP on the above
rulemaking provisions contained in
matters as they develop. Information
Chapter 120.541 and 120.56(2),
provided by prisoner Kurt Smith,
Florida Statutes; that the "warden
who prevailed on a challenge to an
. exception"
provision
is
not
FDOC mail procedure directive in
coristitutionally neutral; and that the
2002, has been helpful to FPLAO
rules fail to provide any. procedure
staff in pursuing the above matters.
whereby
senders
of
rejected
Thanks goes out to him.] •
materials may appeal such rejection.
FPLAO staff. who are working on· ~xxxxxxxxxxxxxxxxxrlXXXXX1X1YX
the challenge, say they are optimistic
~
ADVERTISING NOTICE
'i.
the rules will be invalidated.
"
.
X
•

• On Dec. 27 FPLAO, FPLP
and Teresa Bums-Posey filed a
Petition to Adopt Rules with the
Florida Department of Corrections
asking the Department to adopt a
formal procedure that provides due
process to the public, members of the
Bar and of the media whenever their
mail to prisoners in censored or
rejected. Currently, the FDOC has
no such procedure in .place. The
petition asserts that the FDOC is, and
has .been for years, violating the
established due process rights of
prisoners' family members, friends,

7

'.

~

X

Due \0 a concern for our membcn, the FPLP staff
\0 ensure thaI advertisers in these pages are ;.
reputable and qualified \0 provide the smiccs being '/.
offered. We cannot meet every ·lIdvcniscr. however. X
so members are advised 10 always pasonally contatt 'X'
advertisers for ft1rther infol1llll\ion on their
qualifications and cxpcriCllCC bcfme making 0 X
decision 10 hin: an attorney or other professional 'I.
service provider. You should never send legal or 'i..
other doauncnu 10 an advertiser befon: contacting •
•
and n:ceiving direclions 10 send such mllterial. 'I..
For th~e wishi~g 10 advertise in FPLP. please write X
for ralC mfonnalion. Address such mail 10:
•'L

• tries
,

1,

'I.

.'

~
X.

.)

:'l
~
~

'I.,

'I.,

'I.

'I'
"

~

1,

•

I.,

Florida Prison Legal Perspectives
Attn: Advertising
P.O. Box 660-387
Chuluoto, FL 32766 .
Or
Email: FPLP@aol.com

1~~YYYYYYY1YY1111111111111Y111

'I.•

X
v
"-

~

~

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives

,_NE_W_S_B_RlE_"_._F_S

,.
(

Canada - During Nov. Canada's
Supreme Court in a 5-4 decision
struck down a law that said that
prisoners serving more than two
years can't vote in federal elections.
The court held that the 1993 law
violated fundamental rights of.
prisoners and wasn't justified by any
social objectives.

to families;With children who lack
such necessities because of famine,
war, povertY or natural disasters. In
2001, Feed the Children shipped 119
million pounds of food to children
and their families in all SO states and
to 45 foreign countries.
[Source: Inside Journal, NovlDec

NM - A lawsuit filed on behalf of
six New Mexico prisoners in Oct.
accuses the NM DOC of allowing
mentally disabled prisoners in the
state's maximum-security prison
units to languish without proper
treatment.

2002J

CO - Colorado Gov. Owens said he
would seek more funding for prisons
"during
2003
although
other
departments will be cutting their
budgets. Owens' promise came in
Nov., only two weeks after the
killing of prison guard Sgt. Eric
Autobee by a prisoner at Limon
Correctional Facility. The guards
union
claimed
budget
cuts
contributed to Limon's death, a claim
prison officials denied.

FL - Felony hate crime charges are
pending against two black prisoners
who allegedly beat a white prisoner
who had aceused one of them of
stealing his pet spider. Officials at
Charlotte Correctional Institution
said James Borland suffered a skull
fracture and needed brain surgery
following the incident at that prison
on Dec. 11. Lemuel Ware, who
Borland accused of stealing the
spider, and Corey Andrews were
charged with aggravated battery,
elevated to a felony punishable by a
life sentence where they allegedly
taunted Borland with racial slurs as
they beat him. Ware was scheduled
to be released from prison in 2008, ,
Andrews in 2005. Borland's release
date is 2003. Charlotte CI Warden
Warren Cornell said prisoners are not
allowed to have pets, including
spiders, but its not uncommon for
them to raise spiders anyway and to
fight them for entertainment.

OK - During Nov. the state's first
mental health court was started in
Oklahoma County. Under the new .
system, low-risk defendants with
mental illnesses and who are charged
with misdemeanors can go to the
new kind of court where treatment,
not just jail, is an option.
If
successful, the program may be
expanded.
[Note: In Sept. $4 million was given
to states by Congress to start mental
health courts where nonviolent
mentally ill criminal defendants are
given an opportunity for treatment
instead of incarceration.
More
information can be found about the
mentally ill in the criminal justice
system on the Internet at:
www.consensusproject.org]

FL - During Nov. a federal jury
found that black workers at three
were
not
Florida
prisons
discriminated against because of race
or gender. The all-white, all-male
jury ruled in favor of the Fla.
Department of Corrections on every
claim in the federal lawsuit. The
lawsuit was brought by the NAACP
on behalf of nine current and fonner
employees who worked at two
prisons in Marion County and at one
prison in Lake County.
The
employees claimed they were denied
promotions, subjected to racial slurs,
forced to work undesirable posts and
unfairly disciplined because of race
or" sex while employed at Marion,
Lowell, and Lake Correctional
Institutions.
FL - During April and May of 2002
•federal women prisoners at FCC
Coleman Camp in Coleman, Florida,
raised and donated more than $2,500
to the charity Feed the Children. The
OkJahoma
City-based
charity
delivers food, medicine, and c~othing

KY - Almost 600 prisoners w~re

released from Kentuc~'s prisons
and jailS during Dec. to try to avert a
$6 million defiCit in the state's"
correctional budget. Gov. Patton's
"conditional commutation" included
567 nonviolent prisoners who were
within 80 days of completing their
sentences. Most of those released
were convicted drug offenders or
thieves. Excluded from the early
release were sex offenders, D UIs
with more than 4 convictions, and
those deemed violent or seriously
mentally ill.

8----~

UT
utah prosecutors and
lawmakers are working to relax a
voter-approved law that has made it
almost impossible for state police
agencies to seize assets from
criminal suspects.
The ballot
initiative passed two years ago has
also cost law enforcement an
estimated "$2 million share of assets
taken by federal agencies in Utah.
The initiative was passed when it
was discovered police agencies were
using asset forfeitures to pad their
budgets.
Tanzania - At least 16 prisoners
suffocated to death after police in the
African country of Tanzania
allegedly crammed and locked .120
prisoners into a cell designed to hold
30. The prisoners. were awaiting
trial. Media reports said their cries
for help were ignored by guards, who
thought it was a ploy to escape.
[Source: UP, 11/20/02] •

_

- - - - - - - - . . , . . . -.......- - - - FLORIDA PRISON ~GAL

Perspectives - - - - - - - - - - - - - -

'MICHAEL V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATION
The Law Offices of Michael V. Giordano
412 E. Madison Street, Ste. 824
Tampa, Florida 33602
(813) 228-0070
A STATEWIDE practice specializing in Post-Conviction
Relief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**
**PAROLE**
**DIRECT APPEALS**
**HABEAS CQRPUS**
**POST-CONVICTION RELIEF**
-*INEFFECTIVE COUNSEL
*WITHDRAWAL OF PLEA
*ILLEGAL SENTENCES
~ ACTUAL

INNOCENCE

*I.N.S•. DEPORTATION
I am a fonner Assistant State Attorney (Felony Division Chief), Assistant Public Defender (Lead Trial Attorney), and member of the
faculty at the University of Florida College of Law. I have devoted over 2S years to the teaching and practice of criminal defense law,
and I am an author 'Jf a 1,250 page text on federal practice in the Eleventh Circuit. The major thrust of my practice has been postconviction.oriented. There is approximately 70 years of combined experience in my office. 1 do not believe you can find more
experienced representation in the State of Florida or elsewhere.

'The birinll of a Iawycr is 311 ilrpllrtaul =sion that shGuld not be based solely on advertisements. Before you decide. ask lIS 10 send you free wOllen infunnation aboul our qualifications.

9------.---

_

- - - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - - -

POST CONVICTION CORNER

When one investigates his or her case for potential
postconviction claims he or she typically refers to pretrial
discovery documents, trial transcripts, the record on
appeal. and correspondence from the trial attorney. All of
these documents are valuable and. when properly
reviewed, can present viable postconviction claims. But.
an often of overlooked source of potential claims is the
State Attorney's file. Said file is. for the most part, a
public record aJ'!d can be viewed by anyone who makes a
request. The purpose of this article is to direct interested
persons on how to obtain public records such as a
prosecutor's file on a criminal case.
Article I. §24(a) of the Florida Constitution
provides that:
"every person has the right to inspect or copy any public
record made or received in connection with the official
business of any public body, officer or employee of the
state......
In addition to the Florida Constitution. Florida
Statutes § 119. the Public Records Act, is the vehicle
which affords the public access to most public
infonnation. §119.011 defines public records as "...all
documents. papers, letters, maps, books, tapes.
photographs. films, sound recordings, data software, or
other material, regardless of the physical fonn,
characteristics, or means of transmission. made or
received pursuant to law or ordinance or in connection
with the transaction of official business by any agency."
In other words,. public documents include all materials
made or received by an agency in connection with official
business which are used to perpetuate, communicate, or
fonnalize knowledge. See. Shevin v. Byron. et.ar., 379
So. 640 (Fla. 1980). For the most part, any and all records
received by a public agency are public records unless they
are subject to an exception provided by Chapter 119. For
the purposes of this article. important exceptions to be
aware of are:

by Loren Rhoton, Esq.

.•
Active criminal investigative and
infonnation [§ 119.07(3)(b»·
•
Attorney "work
[§ 119.07(3)(1»

product"

in

intelligence

an active case

• Identity of crime victims [§ I 19.07(3)(s)]
• Addresses and phone numbers of law enforcement
officers and fonner officers and their families.
Other exemptions from Chapter 119 can be found in
§ 119.07(3). But. for the most part. Chapter 119 is based
upon the premise that all records of a public agency are
public records unless excluded by a specific exemption.
The public records law is to be construed liberally in favor
of openness. and all exemptions from disclosure are to be
construed narrowly and limited to their designated
purpose. See. City of St. Petersburg v. Romine ex reI.
Dillinger. 719 So.2d 19,23 (Fla. 2nd DCA 1998).
For readers of this article it is important to know
that a prosecutor's file on a case may be a public record
that can be reviewed by any person who so requests. Of
course. State Attorney case files on active cases will be
considered to come under the active criminal investigative
or criminal intelliKence exemptions of Chapter 119. But.
once a criminal case is disposed of and the disposition is
final. the entire State Attorney's file on the case becomes
a public record under Chapter 119. This means that the
entire file (excluding any portions that are covered by a
specific exemption) is open to viewing by anybody who
makes a public records request.
Of course it is quite possible that a ·prosecutor's
notes may come under the worfc product exception.
Nevertheless. it is also quite possible that. when given a
proper public records request. the entire file. will be
handed over for the requestor to view. One never knows
what type of infonnation may become available when
reviewing the State Attorney's file. Be sure to be alert for
infonnation and or evidence which is noted in the files
which was never disclosed to you or your attorney. If any
such nuggets should appear. they could potentially provide

10---------------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

grounds for a 3.850 motion based upon newly discovered
evidence. Brady violations, etc. While it is not possible to
list every potential issue that could arise upon the viewing
ofthe prosecutor's files. it is important to note that such a
public records request may be very helpful in preparing a
postconviction attack on a Judgment and Sentence.
If you are reading this article it is most likely that
you are incarcerated and will be unable to conduct a·
review of a prosecutor's files on your own. Therefore, I
recommend, if possible, that an attorney experienced in
such matters be retained to assist with the request and
review of the prosecutor's files. In the alternative, a friend
or family member could conduct the search on an
incarcerated person's behalf. But, it will be'important for
the reviewer to be extremely familiar with the facts of the
case being reviewed so as to know when something
interestinglhelpful appears in the prosecutor's file.
Chapter 119 provides that: "Every person who has
custody of a public record shall permit the record to be
inspected and examined by any person desiring to do so,
at any reasonable time. under reasonable conditions, and
under supervision by the custodian .of the public record or
the custodian's designee. The custodian shall furnish a
copy or a certified copy of the record upon payment of the
fee prescribed by law... and for all other copies, upon
payment of the actual cost of duplication of the record....
§ 119.07( I)(a) provides more information on the costs of
copies and duplication of records. Be aware that one may
incur costs when performing a public records review.
To make a public records request all one must do
is contact the records custodian for the public agency and
ask to view specific records. The request does not even
have to be in writing. See § 119.07( Ilea). Nevertheless, it
is always beneficial to put the request in writing and
request that, the custodian specify, in writing. any § 119
exemptions it is claiming. It will behoove the public
records requestor to make a paper trail in case he or she
needs to bring a civil action to enforce public records
viewing rights. Therefore, it is best to make a specific
written request for the records one wishes to see. Once
the request is made the records custodian must be given a
"reasonable time" to retrieve the records and delete any
portions that the custodian claims are exempt. Said
"reasonable time" is the only delay that is permitted for
producing the public records for inspection. The Tribune
Company v. Cannella. 458 So.2d 1075 (Fla. 1984).
Once a public records request is made the
custodian must permit the inspection at any reasonable
time. under reasonable conditions. and under supervision
by the custodian of the public record or the custodian's
designee. See §119.07( I)(a). The custodian cannot refuse
to produce the requested records just because some parts
of the record are exempted. Instead. the custodian shaH
delete or excise the exempted portions and produce the
nonexempted record portions. See § 119.07)(2)(a). Once

Perspectives - - - - - - - - - - - - - - -

again, when making public records requests. it is wise to
be aware that the custodian can charge for copies and for
extensive use of technology and clerical or supervisory
costs. §119.07(1)(b).
If, for some reason. the custodian fails to act on a
public records request. the proper remedy is a petition for
a writ of mandamus in the appropriate circuit court.
Staton v. McMillan,
597 So.2d 940 (Fla. Ist DCA 1992). Such a petition
should seek to compel the custodian of the records to
comply with the public records request. But. before filing
a mandamus petition the petitioner must first 'furnish a
public records request to the agency involved. It will help
to attach your written public records request as an exhibit
to the petition. It is also important to note that if a
mandamus petitioner succeeds in obtaining the records via
a civil action (mandamus petition) § 119.12 provides for
attorneys fees. § 119.12 specifically provides that "[i]f a
civil action is filed against an agency to enforce the
provisions of this chapter and if the court determines that
such agency unlawfully refused to permit a public record
to be inspected, examined. or copied. the court shall assess
and award. against the agency responsible. the reasonable
costs ofenforcement including reasonable attorneys' fees:'
A public records search of the prosecutor's file
may not always tum up information helpful to a
postconviction case. On the other hand. one never knows,
the file could be rife with newly discovered evidence
claims. Therefore, it is important to consider conducting
such a public records search to discover. support or
supplement a postconviction claim.

Loren Rhoton is a member in good .ytanding wi/h thl!
Florida Bar and a member of the Florida Bar Appel/alt!
Practice Set·tion. Mr. Rhoton practice.y almost exclusil'e~v
in the postconvic:tionlappellate area ofthe law. both at the
State and Federal Level. He has assi.~ted hundred.. of
incarcerated persons with their cases (lIId has nunwrou.\'
written appellute opinions.
THIS
ARTICLE
AND
PAST
ARTICLES
ON
POSTCONVICTION IN FLORIDA BY MR. RHOTON ARE
AVAILABLE ON THE WEB AT WWW.FPLAO.ORG.

11------

_

- - - - - - - - - - - - - - flORIDA PRISON LEGAL

PerspechVes - - - - - - - - - - - - - -

Apprendi was applied to require such
a determination be resolved by a jury
APPRENDI
after the factors are formally
REVISITED
charged.
by Richard Geffken
Harris v. u.s., 122 S.Ct.
2406 (2002) involved a mandatory
minimum if a gun used in an offense
The U.S. Supreme Court has
now heard all three cases selected
is "brandished." After conviction, a
federal judge in North Carolina ruled
this term to clarifY its landmark
decision in Apprendi \I. New Jersey,
Harris did this in a separate
120 S.Ct 2348 (2002). Apprendi
proceeding. It was not, however,
marked the ftrst time in many long
charged nor found to be true by the
years that the current court ruled in a
jury. The U.S. Supreme Court held ,
"brandishing" was a sentencing
manner
to
safeguard
the
constitutional rights of the American
factor, not a material element of the
people.
It held
it was
offense; that Apprendi applies to
extending beyond, the maximum
unconstitutional for a judge to
determine facts, which increase the
enacted by a Legislature, not the
range of penalties to which a
minimum; and Legislatures can give
criminal defendant. is exposed.
judges the power to determine
mandatory minimums. Two points
Enhancement for prior convictions
were signifiCant.
were excepted.
Otherwise, an
Exceeding an
enhancement factor must be charged
enacted maximum remains violative
by information, and be' found true
of Apprendi. The other was express
criticism by the majority that
beyond reasonable doubt by the trier
offaet (a jury).
mandatory minimums can fail to
An enhancement for drug
account for unique circumstances
where a lesser. penalty is merited.
quantity being decided by a federal
judge instead of a jury was the issue
Resolution of that problem was left
in U.S. v. Cotton, 122 S.Ct. 1781
to the various Legislatures.
(2002).
Although the indictment
Analysis of the three cases
failed to charge the quantity, there
sheds considerable light on how
was no objection, and the factual
Apprendi is to be applied. The Court
retreated somewhat, left issues
amount overwhelmingly evident.
These arguments appear weak for
unresolved, yet intends Apprendi to
allowing the enhancement. Even the
have an impact, which it should now
be given.
government conceded the omission
on the indictment was plain error.
First, unobjected errors in an
indictment will not cause reversal in
However, the conclusion to the
opinion reasoned it would question , a harmless error situation. Where
. the "fairness, integrity, and public
drug quantity is an issue which needs
to be factually decided, Cotton
reputation of judicial proceedings" to
should not bar relief. The U.S.
give a sentence prescribed for lesser
Supreme Court merely took a simple
offenses "becauSe of an error that
bright line rule it created, and
was never objected to at tria!." Id at
1787.
..
tarnished it up to guarantee lots more
litigation. Thirty years ago the Court
.
In Ring \I. Arizona, 122 S.Ct.
applied "reason" and stood by its
2428 (2002), a state's death penalty
precedents. Now, even they aren't
procedure was overturned. Found
sure what they mean.
guilty of felony .murder, the
maximum penalty was life. . The
Ring, supra, restores clarity
on the issue of exceeding a statutory
judge then held a hearing where he
found two aggravating factors to
maximum for factors· not tried or
impose a death penalty. Since death
found to be true by a jury. States
may not legislate procedures
exceeded the statutory maximum,

-Commentary-

12

circumventing the constitutional
right that a jury, not a judge,
determine what facts are true.
Disturbingly, Harris created
a new distinguishing factor, which
must generate even more litigation
than Cotton.
"Brandishing" a
firearm was a sentencing factor, and
not, according to the high Court, a·
material element of the crime
charged. Which begs the question:
What are sentencing factors a judge
can play God to decide, and what are
jury issues? Such nonsense wastes
judicial resources, and makes
Americans believe their judiciary
serves no function. When a statutory
maximum is exceeded by any factor,
it appears these must be charged and
found beyond a reasonable doubt by
a jury.
Substituting "increases
penalty" for "sentencing factor" may
be reasoned to apply only when a
maximum penalty is exceeded.
Unfortunately,
is now customary,
the Court decided that decades of
costly litigation is simpler than just
The only
saying so clearly.
consistent policy now found in U.S.
law is that like the whimsical
goddesses and nymphs of ancient
Greek myths, the flighty U.S.
Supreme Court can just change their
minds from one moment to the next.
In short, Apprendi still looks
good, but U.S. law is now a lottery
system. •
I

as

POLICE LINE-UPS
LEAD TO WRONG
CONVICTIONS
Recently residents of the
Washington D.C. area got a crash
course in the fallibility of crime
scene memory. Witnesses in the
sniper attacks that killed I0 people in
the D.C. area reported seeing a white
truck or van fleeing several of the
·crime scenes.
Law enforcement
analysts now believe that reports of a
white vehicle (truck or van) that was
seen near one of the first shootings
tainted the memories of later

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives

witnesses, encouraging them to
shown a grainy film of a staged
crime, then handed six photos. They
remember seeing white trucks. The
sniper suspects, it turned out, drove a
weren't told whether the "criminal"
they had seen was in the group. He
blue Chevrolet Caprice.
wasn't, but nearly all of the research
This type of faulty crime
scene evidence is an agtH>ld problem
subjects chose a picture anyway.
The problems increase when
that· has led to hundreds, if not
the police officer or prosecutor
thousands, of wrongful convictions.
overseeing a photo. spread or lin~up
The more notorious type of faulty
knows which participant is the real
evidence is that of police liit~ups.
suspect. ~A witness can be steered
Law enforcement has long insisted
that the "wrong man" identifications
toward making the right choice (as
aren't that common and that they are
believed by police), even if the
usually corrected well before cases
officer isn't consciously trying to
go to trial. But recent research has
influence the witness," says Ronald
provided ammunition for defei1se.
Fisher, a psychologist at Florida
International University, who helped
attorneys, academicians, and a
prepare a Justice Department study
minority of police and prosecutors
of suspect Ids in 1999.
who are pushing to improve how
. Last year, a study by Cal
suspects are identified.
Law enforcement authorities
State
University-Sacramento
have long relied on photo spreads
researchers Bruce Behrman and
and live Iin~ups to help witnesses
Sherrie Davey found that witnesses
who viewed conventional lin~ups
identifY suspects. In photo spreads,
witnesses are asked to look for the
and photo displays in 347 California
suspect. in a group of six or more , cases picked the wrong person about
half the time.
Meanwhile, the.
photos of people. In live lin~ups,
witnesses see a group of at least six
Innocence Project, a New York City
potential suspects through a two-way
group that specializes in using DNA
mirror.
testing to undo wrongful convictions,
found last year that mistaken Ill; by
Many social scientists insist
that both procedures create problems.
witnesses played a role in 60 of the
"The tendency is to pick the one who
group's flJ'5t 82 exoneration cases.
looks most like the person you saw,"
In recent years, the history of
says Gary Wells, an Iowa, State
the justice system's problem with
wrongful convictions based on
University psychologist who has
mistaken ID has come to light.
researched
identifications·
by
witnesses since the mid-1970's. This
Police misconduct has been shown to
process, Wells claims, "becomes
play a significant .role in the
more about reasoning than memory."
misidentification of suspects. States
Wells states that "this is not a
have been given suggestions from
defense or a ,prosecutor issue - it's a
crime analysts and psychologists on
justice issue."
how to make suspect identifications
Identifications
rely
on
more accurate.
memory, which researchers say is
In Santa Clara' County,
fickle even without the shock that'
California, police have stopped
giving witnesses "six packs" of
witnesses to crimes often experience.
Precise recollections of a crime can
photos of previous arrestees to
.peruse in search of subjects. They
be particularly difficult for witnesses
if, as is often the case, they see a
now use a variation of the sequential
criminal for only a few seconds in a
method for lin~ups, and show
surprising and suddenly stressful
witnesses one photo at a time from a
sltuation.
pool of potential suspects. Memory
researchers say that· method produces
In
a
research
survey
published in] 998, a group was
more reliable identifications.

Even better, in Clinton,
Iowa, detectives working on a case
are barred from the lin~up room
under a new policy designed to
prevent cops from influencing
witnesses to choose a certain person.
While these procedures are a
step in. the right direction, it cannot
be disputed that more has to be done.
to ensure our nation's citizens and, in
some cases, our loved ones are not
the product· of a wrongful conviction
- after all it is a justice issue.
[Source: USA TODAY, 11-26-02] •
-AT'rBNTION- .

Families, Friends,
Advocates of
Florida Prisoners
On March 10. 2003. between lOam and
3pm, Florida Prisoners' Legal Aid Organization
will sponsor the fifth Tally Rally for family
members. friends, and advocates of Florida state
prisoners. This rally will be held in the Rotunda
and courtyard of the Capitol building in
Tallahassee, Florida. and is designed to eduCllle
our state lawmakers about the problems and
burdens faced by families who have a loved one
in prison in Florida. The Legislature will be in
session during this rally.
.
. There will be displays. speakers, videos, and
loads of information available for attendees.
. FPLAO will fOcus on the excessive collect-eall
phone rates and the parole problem. Information
will be presented by othergroups on other topics.
This is going to be the best and biggest Tally
Rally yel All prisoners: Spread the news about
this rally and get a promise fi'om your people to
attend. Fwnily members. friends and advocates:
Come join· with others to have your voice heard
and help change the system.
For more information, visit:
www.fnlap.grWeyenb
'Or
Email us at: fnlgp@Bol.sgm
. If you arc unable to attend this upcoming rally,
please make a donation to help fund this very
important event for prisoners and their families·
and loved ones. Send donations made payable to
Florida Prisoners' Legal Aid Org.• Inc., to:
FPLAO.lnc:.
Tally Rally

P.O. Box 660-387
Chuluota. FL 31766
Or you can make Ii donation online with your
Visa or MasterCard at:

13 - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

PerspectJves - - - - - - - - - - - - - -

The following are summaries of recent state and federal cases that may be useful to or have a significant Impact on Florida
prisoners. Prisoners Interested In these cases should always read the full case as published In the Florida Law Weekly (Fla.
L. Weekly); Florida Law Weekly Federal (Fla. L Weekly Fed.); Southern Reporter 2nd Series (So.2d); Federal Supplement
2nd series (F.Supp.2d); Federal Reporter 3rd Series (F.3d); or Supreme Court Reporter (S.Ct.).

U.S. SUPREME COURT
Woodford v. Visciotti, 16 Fla. L.
Weekly Fed S6 (11/4/02)
The United States Supreme
Court once again has quashed a
decision of the Ninth Circuit Court of
Appeals. The Court ruled that the
circuit court exceeded limits imposed
on federal habeas corpus review by
28 U.S.C. section 2254(d) when it
granted habeas relief to respondent
prisoner after concluding that he had
been prejudiced by his trial counsel's
deficient perfonnance. The Supreme
Court reached this conclusion by
determining the state supreme court
decision denying relief was contrary
to clearly established federal law.
The Ninth Circuit's reading
of state supreme court opinion, as
interpreted by the U.S. Supreme
Court, was a mischaracterization of
the state court opinion. The Ninth
Circuit viewed the state supreme
court decision as requiring the
defendant
to
prove,
by
a
preponderance of the evidence, that
the result of sentencing proceedings
would have been different. The U.S.
Supreme Court ruled the state
supreme court applied the proper
Strick/and standard for evaluating
prejudice as a result of trial counsel's
perfonnance.

U.S. COURT OF APPEALS
Bond v. Moore, IS Fla. L. Weekly
Fed C1118 (t lib Cir 10/10/02)
The Eleventh .Circuit Court
of appeals has ruled thai the one-year
period of limitation under 28 U.S.C.

section 2244(d) for filing a federal
habeas corpus petition begins to run
after expiration of the 90-day
window during which a state
prisoner could· have petitioned the
U.S. Supreme Court for a writ of
certiorari.

offense and posed no threat to the
safety of the officer, herself or the
public. Stanfield's use of pepper
stray
plainly
constituted
unreasonable and excessive force in
violation of Vinyard:s constitutional
rights.

Vinyardv. Wi/son, 16 Fla. L. Weekly
Fed C 49 (I lib Cir 11/14/02)
Pursuant to 42 U.S.C.
section 1983(1994) Vinyard sued
Officer Patrick Stanfield of the'
Walker County Sheriff's Office for
the state of Georgia, for his excessive
use of force in violation of her
constitutional rights under the Fourth
Amendment.
Vinyard also sued
Sheriff Steve Wilson for his failure
to investigate her excessive use of
force claim and fraud.
The district court granted
summary judgment to both Stanfield
and Wilson on the grounds of
qualified immunity. On appeal the
Eleventh Circuit reversed the
judgment on Stanfield but affirmed
the judgment on Wilson.
The
Eleventh
Circuit
concluded that Stanfield was not
entitled to qualified 'immunity when
he used pepper spray on Vinyard
who was under arrest and handcuffed
in the back of his .patrol car.
Stanfield stopped his vehicle. as
Vin~
was
~n2ming Md
returning obscenities and insults
during the short four-mile ride to the
jail Md grabbed Vineyard forcibly
enough to bruise her arm and breast
before using pepper spray on her.
The" Court reasoned that
Vineyard was arrested for a minor

FLORIDA SUPREME COURT
Weslerheide v. Slale, 27 Fla. L.
Weekly S866 (Fla. S.Ct. 10/17/02)
In this case the Florida
Supreme Court reviewed several
questions certified by the Fifth
District Court of Appeal to be of
great public importance.
The
questions
involve
the
constitutionality of Florida's Jimmy
Ryce· Act, which provides for the
involuntary commitment of sexually
violent predators.
. In this lengthy opinion, the
supreme court held that commitment
pursuant to the Act was civil in
nature Md constitutional. Because
the proceedings under the Act are
civil rather than crimina~ the Act
does not violate constitutional
prohibitions of double jeopardy and
ex post facto law, which apply
strictly to criminal proceedings. The
Act does not violate due process Md
there is no constitutional inftrrnity in
the jury instruction that stated in
order for jury to find that a defendMt
met the statutory definition of a
sexually violent predator, the jury
had to conclude that his ability to
control his dangerous behavior is
impaired to such an extent that he
poses a threat to others. The Court .
reasoned that although the instruction

---------------14---------------

·

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

does not use the words "serious
difficulty" in controlling behavior, it
conveys this meaning.
Further, the Court held that
the clear and convincing standard of
proof specified in the Act does not
violate due process. The Court also
rejected
the
equal
protection
argument and approved the rational
basis test in upholding the Act.
[Editor's Note: This is a must read
for all sexual offenders who have
been labeled sexual predators.]

State v. Goode, 27 Fla. L. Weekly
S860 (Fla, S.Ct. 10/17/02),
State v. Kinder, 27 Fla. L. Weekly
S885 (Fla. S.Ct. 10117/02)
The Florida Supreme Court
has held that the failure to commence
a commitment trial within the 30-day
period of Section 394.91 6( I) Florida
Statutes (Jimmy Ryce Act), absent a
prior continuance for good cause,
authorizes the release of the detained
individual, when the commitment
case has not been dismissed, and the
trial court has previously made an
exparte determination that there is
probable cause to believe that the
individual is a sexually violent
predator in need of commitment.
Stale v. Me"icks, 27 Fla. L. Weekly
S886 (Fla. S.Ct. 10/24/02)
In this case the Florida
Supreme Court held that a bailiff's
off-the-record, substantive response
to
a jury's
request
during
for
additional
deliberations
instructions or for testimony to be
read back as per se reversible error
and is not subject to a harmless error
analysis.
State V. Atkinson, 27 Fla. L. Weekly
S888 (Fla. S.Ct. 10/24/02)
In yet another case in the ongoing evolution of Jimmy Ryce
cases, the. Florida Supreme Court
held that the Jimmy Ryce act does
not apply to persons convicted of
sexually violent offenses before the

.

Perspectives - - - - - - - - - - - - -_ _

effective date of the Act who were
not in lawful custody on the effective
date of the Act. The most interesting
aspect of this case involved a
defendant who was resentenced
pursuant to the Supreme Court's
decision in Beggs v. State, 759 So.2d
620 (Fla. 2000). Pursuant to Beggs,
Atkinson's sentence should have
expired on June 25, 1998, and thus,
the Court held, he should not have
been in custody (as required) on the
effective date of the Ryce Act. The
Court said it would be fundamentally
unfair not to give Atkinson the
benefit of Beggs by recognizing his
operative release date.

McLin v. State, 27 Fla. L. Weekly
5743 (Fla. S.Ct. 9/12/02)
In this case the Supreme
Court set out the legal principles
governing the consideration of a rule
3.850 motion containing a claim of
newly discovered evidence based
upon the recantation of trial
testimony. The court held that the
trial court must conduct an
evidentiary hearing on the claim
unless
the
sworn
allegations
supporting the claim are conclusively
refuted by the record.
[Editor's Note:
Generally, an
evidentiary hearing is required to
resolve any credibility questions that
,arise from the sworn allegations.
There may be cases where, from the
face of the sworn allegations, it can
be determined that the allegations are
inherently incredible; Otherwise, if
no evidentiary hearing is held, the
trial court is required to accept the
sworn allegations. supporting the
claim as true.]

DISTRICT

COURT

OF

APPEAL
Gibson v. FDOC, 27 Fla. L. Weekly
02193 (Fla. 151 DCA 10/9/02)
Florida prisoner Thomas
Gibson sought certiorari review of an
order of the circuit court that denied
his petition for writ of mandamus.
which argued that the DOC lacked

--------------15---

authority to forfeit certain previously
accrued gain-time awarded him by·
the sentencing court. Gibson further
sought an order compelling DOC to
recalculate his sentence in order to
award him proper credit.
The First DCA rejected
Gibson's argument and held that the
DOC properly relied on the
methodology approved by the
Supreme Court in Eldridge v. Moore,
760 So.2d 888 (Fla.2000), when it
imposed a forfeiture penalty as a
consequence of Gibson's probation
violation. However, because of the
structure of his sentence, the DCA
certified the question of whether the
forfeiture penalty enunciated in
Eldridge apply where a defendant
receives a sentence of incarceration
for one offense followed by a
sentence of probation for another
offense, where both crimes were
scored on a single scoresheet and the
trial court awards prison credit
'pursuant to Tripp v. State, 622 S.2d
941 (Fla. 1993), upon a violation of
probation for the second offense.

In Re Commitment of Duane Edwin
Sulton v. State, 27 Fla. L. Weekly
0232 I (Fla.2d DCA 10125/02)
In this civil commitment
case pursuant to the Jimmy Ryce
Act, Duane Sutton sought certiorari
review of a trial court order denying
his motion for protective order.
Sutton sought to prohibit the State
from taking his deposition. Sutton
claimed that compelling him to
submit to a deposition in these
proceedings violated his right against
self-incrimination, equal protection;
and right to privacy.
The DCA held that the trial
court did violate due process or
from
the
essential
depart
requirements of the law in requiring
him to appear for deposition.
Although the trial court did not
depart
form
the
essential
requirements of the law in denying
the motion for a protective order,
Sutton may object to questions
during the deposition on the grounds

_

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

that they violate his right against
self-incrimination or his right to
privacy.
The DCA also stated that
because Sutton may be required to
choose between a speedy trial and
potential liberty on one hand and his
Fifth Amendment rights and privacy
rights other the other, there is a risk
that the Act win become
unconstitutional. •

Perspecbves - - - - - - - - - -

_

DATE RUM 08/29/02
DEPARTMENT OF CORRECTIONS
DEPARTMENT SUMMARY
INMATE \lCLFARE TRUST FUIID
REVENUES AND EXPENDITURES BY TYPE
FOR THE FISCAL YEAR ENDED
JUNE 3D, 2002
REVENUES
40,521,374.84
566.626.51:1
18,948.967.33
.00
407,536.53
18,553.29
1,282.83
2,823.44

SALES
VENDING MACHINE COMMISSIONS
TELEPHONE COMMISSIONS
PRIVATIZED CANTEEN CCKMISSIONS
INTEREST EARNINGS
CONTRIBUTIONS/INMATE CLUB EARNINGS
INMATE BANK BALANCE LESS THAN S1
OUER REVENUE
MERC~ANDISE

FAMILIES AGAINST
INFLATED RATES
(FAIR)
CAMPAIGN
Are you tired of the high cost of
the collect-call phone rates being
charged the families and friends
of Florida state prisoners?
FPLAO intends to do something
about those exorbitant rates, but
your help is needed. If you have
access to the Internet, log on "to
ww.fplao.org to participate in the
FAIR Campaign online. You can
also write and receive a FAIR
Campaign Action Packet to
participate in the effort to achieve
lower rates. Together, we can
make a difference. Write for your
Action Packet today and' visit
www.fplao.org to get involved.
FAIR Campaign
P.O. Box 660-387
ChUluota, Fi. 32766
Prisoners: If you would like your family to
receive Information about the FAIR
Campaign and an Action Packet, send
their name and address to the above.

~

TOTAL REVENUES

60,467,164.82

.S

OPERATING.EXPENDITURES
COST OF SALES
EMPLOYEE SALARIES
SALARIES - OPERATORS
OPER. EXP CONTRACTUAL SERVICES
MATERIALS, SUPPLIES, AND EGUIPMENT
OPER. EXP.-DEPRECIATION
OTHER OPERATING COSTS
TOTAL OPERATING EXPENDITURES

25,234,426.24
1,703,313.97
256,597.30
4,289_93308,512.29
.00
612,808.71

....................
S

DIRECT BENEFIT PROGRAMS
EDUCATION PROGRAMS
DRUG ABUSE SERVICES
LIBRARY SERVICES
RELIGION
TRANSITION SERVICES
VISITING PROGRAMS
INMATE CLUB ACTIVITIES
OTHER INMATE ACTIVITIES
TOTAL DIRECT BENEFIT EXPENDITURES

28,111,368.58

.•...•..•

~._

-

19,835,981.70
2,518,350.22
3,142,446.98
3,043,005.94
244,007.13
56,347.29
5,347.98
170,787.14

.••.•...........••..
S

OTHER NON-OP EXPENDITURES
EXPEND -FIXED CAPITAL OUTLAY
TRANSFERS OUT WITHIN THE AGENCY
GENERAL REVENUE SERVICE ClIARGE
OTHER NON-QPERATING EXPENSES

29,016,274.38

•.••.•.......•...•..
531,320.43
.00
2,550,307.39
.00

...••...........•...

TOTAL OTIlER NON-OPERATING EXPENDITURES

S

TOTAL EXPENDITURES

S

---------------16------

•.••...•..••.......

3,081,627.82

•••.•..••.....•...•.
60,209,270.78

_

FLORIDA PRISON LEGAL

-Commentary-

PRISONERS AND
ARAMARK:
The Battle Over a
Healthy, Filling Meal'
and Corporate ~rofits
by David M. Reutter
Since July 2001 when the Florida
Department of Corrections (FDOC)
and the publicly-traded Aramark
Corporation entered' into a contract
giving Aramark control of FDOC's
kitchens, prisoners have repor:ted
they are feeling an adverse impact
from that contract.
The major
complaints are smaller portion sizes,
a decrease in the food's quality, and
substantial. delays in the time
required to feed a compound caused
by Aramark failing to cook sufficient
amounts of food. This article is
based upon the Aramark and FDOC ,
contract; its aim is to arm prisoners
with the information to increase their
bottom line: A healthy, filling meal.
• Prisoners are one of the
measuring gauges to determine if
Aramark is delivering an acceptable
level of service, for (according to the
contract) the number of prisoners'
grievances granted monthly is the
first
measure
of
Aramark's
perfomiance.
The other factor
focuses upon the number of
substitutions that Aramark makes to
FDOC's master menu. Considering
Aramark's potential to increase their
bottom line, there are millions of
reasons why' they would squelch on
their contractual obligations.

Contract's Life and Monetary
Factors
The
contract
became
. effective July 1,2001, and terminates
on June 30,2006, with an option for
the FDOC to renew it for an
additional two years.· At any time,
either party may opt out of the
contract with 3D-days notice. FDOC
may terminate with only 24-hours
notice, if it has no fmances to fulfill

_ _--,..

Perspectives - : - - - , - - - - - - - - - - , - - - -

the contract or upon Aramark's
breach of contract.
In the first year of the
contract, it is estimated Aramark
earned $58 million, while costing
FDOC $72.2 million. Each year the
cost to FDOC rises. Now, in the
second year of the contract, there is
a per diem of $2.415 per prisoner,
with an average yearly increase of
$.051 per prisoner built into the
contract. Payment to Aramark must
be made "on a monthly basis [based
on] the midnight count for each day
of service in the month."
That
provision benefits Aramark's profit
earnings in two ways: (1) being paid
for prisoners who do not eat, and (2)
being paid for prisoners who have
left the prison. The latter occurs
everyday prisoners are released prior
to noon, and prisons only receive
new arrivals from receptioJ.l centers
weekly.. Hence, the result is that
most midnight counts are higher than
the noon counts.
FPLP previously reported
upon the long delays in feeding a
compound caused by Aramark's
strategy of cooking as little as
possible to increase profit. . (FPLP,
Vol. 8, Iss. 4.) That strategy violates
FDOC policy, which Aramark must
comply with. "All inmates shall
receive the same food items as
specified on the master menu.
Adequate amounts of food must be
prepared to serve all inmates
according to ihe master menu." See:
.Chapter 33-204.003(3)(d), F.A.C.
There's little doubt the
strategy is effective, however.
According to a recent press release
.by Aramark, its bottom-line was up
20 percent in the recent quarter for
its
"economically
non-sensitive'
businesses,"
which
includes
corrections.
StafBng
Another boon to Aramark's
profitability is the requirement that
payment for prisoner labor had to
cease on January I, 2002; therefore,
this corporate' entity is permitted to

boost profits with prisoner slave
labor. The contract also sets staffing
levels for FDOC guards and
Aramark employees.
The result
(contral}' to what the public was led
to believe when the prison-kitchenprivatization idea was fust proposed)
is more FDOC than Aramark staff.
Aramark must supply 52
management positions and 428
supervisors/line staff throughout the
system.
Management positions
require a bachelor's degree with a
major course study in food service or
hotel and restaurant or institutional
of
management
with
2-years
supervisory experience. The other
428 Arilmark employees are low
scale, required only to have a high
school education and 3-years
experience in food service. Yearly,
Aramark's staff must receive training
in food handling and sanitation.
Additionally, they must attend
FDOC's
40-hour
orientation
program.
FDOC, on the other hand,
must supply 480 guards assigned to
the kitchens, yet who do not assist in
food preparation. After the contact
took effeCt, prisoners working in the
kitchens report that the only
positions the FDOC eliminated were
those for Food Service Directors and
two administrative sergeant positions
at each prison.
Food and Supplies
Aramark
must
"supply
complete food service operations,
including management and oversight
of the project, as well as delivery of
food products, labor, materials, and
expendable supplies to feed inmates,
staff, and official visitors," at FDOC
prisons.
That includes non-food
supplies such as napkins, salt and
pepper shakers or packets, all
cleaning and sanitation supplies, and
If single service
swill removal.
utensils are necessary, Aramark must
bear that cost.
If there is an
equipment breakdown, Aramark
must cover repair costs as it has a

17 - - - - - - - - - - - - - - , . . -

f
- - - - - - - - - - - - - - - FLORlnA p~l~nN lEGAL

responsibility to maintain the
equipment and physical plant.
In delivery of food, Aramark
must comply with the FDOC's
master menu, which provides all
"Recommended Dietary Allowances
or Dietary Reference Intakes as
established by the Food and
Nutrition Board of the National
Academy of Sciences."
See:
. Chapter 33-204.002(1), F.A.C. The
FDOC's Bureau of Food Services
publishes a "Master Menu Manual"
that contains recipes to use in
preparing meals that·'fulfill the
requirements of the master menu.
Aramark may not alter or deviate
from these recipes without prior
approval from the FDOC Contract
Manager after review by the'
Department's Dietician. Exceptions
to the master menu can'be granted
under three limited circumstances:
non-delivery of food items, spoilage,
or
equipment
breakdown.
Significantly, "Failure to order a
product does not constitute a lack of
availability." See: Chapter 33204.003(3)(d), F.A.C.
Ararnark is permitted. to
order and use USDA products to
reduce its raw costs of food products.
Yet, to ensure that FDOC and
P.R.I.D.E. can continue. profiting
from prisoner labor, Aramark must
purchase produce available through
FDOC's Edible Crops Program, and,
any supplies needed to fulfill the
contract must be p~rchased through
P.R.1.D.E.
Performance Measures
The contract establishes two
barometers to measure the service
Aramark is rendering under the
contract. The first is prisoners'
. satisfaction
as
evidenced by
complaints made through the
grievance procedure. This starts with
an informal grievance to the Food
Service Manager, and then follows
the usual steps of a formal. grievance
filed to the Warden and then an
appeal to the FDOC central office, if
necessary. The contract provides

PerspectIves - - - - - - - - - - - - - - -

that Aramark's performance is
"calculated, on a monthly basis, by
dividing the number of inmate
grievance appeals upheld each month
by the number' of inmates
incarcerated at the end of the month.
Acceptable Level of Service: 1.5
percent or less." For a current
prisoner population of 73,000, this
permits the granting of over 1,000
grievances per month.
The second barometer rests
upon compliance with the master
menu.
The acceptable level of
service is 80 percent or more of
meals substitution-free. Thu's, in a
30-day month, which is 90 meals per
prisoner, 72 of those meals must
be substitution-free.
How to Assure Acceptable Service
Both prisoners and guards
have an interest in forcing Aramark's
compliance with its contractual
obligations, for 60th have a right to
eat ineals prepared in the Aramark
kitchens. For guards, it is cheaper to
purchase a hot meal for $1.00 than to
bring a meal from home.
For
prisoners, the cost equates to the
health implications that result if
proper nutritional values and caloric
intakes are not consumed daily.
Prisoners' report that, not only has
portion size diminished, bu~ the
quality of many food products has
actually decreased under Aramark.
This is especially seen in the
increased use of highly processed
meat products. As. noted earlier,
Aramark must purchase supplies
from the FDOC and P.R.I.D.E.
Accordingly, most of the meats and
produce remain the same. Moreover,
there should have been no change in
the end product placed on the trays,
for FDOC has not substantially
changed the reCipes or menus since
Aramark has taken over. If anything,
the end products' quality should have
improved under Aramark's five star
logo.
Certainly, Aramark must
produce a superior quality product to
compete with its food service sectors
plying for business in the free world.

To assist the FDOC in
verifying Aramark's compliance
with recipes and delivery of service,
Aramark must maintain weekly
inventory logs, which must be
updated daily to reflect purchases
and/or transfers, disbursements, and
spoilage of all food products and
supplies.
These logs allow for
verification of guards' incident
reports and prisoners' grievances
alleging alterations and shortages in
recipe
ingredients
and
menu
substitutions.
In addition to
complaints on each violation,
prisoners should maintain a calendar
to document each instance of menu
substitution to ensure that 80 percent
or more of meals are substitutionfree.
Additionally,
prisoners
should pay attention to the meats
served them. This is where Aramark
will see real costs or savings.
FDOC's Bureau of Food Service has
authority to taste-test meats to assure
it complies with their list of approved
foods. If Aramark is serving an
atrocious item of meat, prisoners
should request that that authority be
exercised.
Aramark's failure to satisfy
the service requirements set by the
contract can be costly to the
company or result in termination of
the contract. If Aramark cures a
deficiency within 10 days of notice,
then no fine is imposed. However, if
that same deficiency occurs at the
same prison. on three or more
occasions within 90 days, there is a
$5,000 per day fine that can be
imposed. If Aramark fails to rectify
a deficiency within 10 days of notice,
there is a $10,000 per day per prison
fine that can be imposed.
So
far,
Aramark's
contractual obligations have been
spelled out. Obligations also rest
upon those prisoners and guards who
desire a heahhy, filling meal from
FDOC kitchens. Those persons have
the daily duty of documenting and
reporting
any
viol~tions
on
Aramark's part. Victory can only be

18-----------

_

- - - - - - - - - - - - - FLORIDA PRISON LEGAL

obtained by using' the' pen, for if
FDOC incurs increased costs from
food service grievances and incident
reports, it will require Aramark to toe
the line. Sadly, most prisoners have
the propensity to render only lip
service to their complaints. That
propensity permits Aramark to
increase
its
bQttom
line:
Profitability.
However, if that
propensity changes to putting the pen
to paper, the odds greatly increase
that prisoners and guards can
A
increase their bottom line:
healthy, filling meal.
A wise man once said,
"Whar you fail to condemn, you
condone." Who's bottom line are
you battling for? •

Perspectives . . . ; . ; . . . . - - - - - - - - - - - -

FRANK E. SHEFFIELD, P.A.
906 THOMASVILLE ROAD '
P.O. BOX 10645
, TALLAHA$SEE, 'FLO~IDA 32302·
We provide Representation in all State and Federal'
Courts. Trial and Appeliate'Level; Post conviction Relief;
Clemency and Parole'Reviews .
. Frank E. Sheffield. Esquire
M. Lilja Dandell[ike. Esquire
33 Years Criminal Defense Experience.

CALL: (850) 577,-6555

.'

lJIe hlllng of a lawyer Is an ln1ponant decision lhat should not be baSlld 1O!e1y on advel1lee!"8llts..
Before you de.:lde. ask usia send you free wrltlen information about our qualltlclltlons

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 19

...;..

FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - -

FAMlLIES··AGAINST
INFLATED RATES
(FAIR)
CAMPAIGN
During August 2002, Florida
Prisoners' Legal· Aid Organizaiion
initiated the Families Against Inflated
Rates (FAIR) Campaign. The purpose of
the campaign is to reduce the collect-call
telephone rates being charged the
families ofFlorida state prisoners.
The strategy of the FAIR Campaign
involves organization of family
members, loved ones and advocates of
prisoners into a grassroots movement to
speak out, suppon, and push for
administrative and legislative changes to
eliminate the Florida Depanment of
Correction's discretion to award the
collect-<all
phone
contracts
to
companies
that
guarantee
the
Depanment the highest kickback
commission, instead of guaranteeing the
lowest rates to families.
Currently, the monopolistic rates
being gouged out of prisoners' families,
wh() are struggling to maintain their ties
with
those· incarcerated,
are
unconscionable. While the general
public can make collect phone calls to
anywhere in the U.S. for about 10 cents a
minute, a IS-minute in-state collect call
for prisoners' families costs over SS.
Out-of-state call rates are even worse,
averaging $20 for a IS-minute call.
These monopolistic rates negatively
impact frequent communication between
J1risoners and their families and often
place an onerous financial burden on
families. Consequently, family ties and
relationships suffer and are often
strained.
The exorbitant rates are a result of the
FOOC's
and
telecommunication
companies' greed and willingness to
sacrifice family ties for profit. Between
them, the FDOC and MCI WorldCom
are now bilking almost $40 million a
year from the families of Florida
prisoners (with the FDOC getting more
of the split than MCI WorldCom).
Many families, especially those out of
state. who can only visit infrequently,
now cannot afford ~e phone rates to
maintain communication with an
incarcerated loved one. Children of
incarcerated parents are having their
ability to communicate strained or
broken, raising their at-risk factor.
Elderly parents on fixed incomes cannot
afford to accept the phone caIls of their
incarcerated sons or daughters. This
cannot continue.

Prisoners are c8Jled on to partiCipate
in the FAIR Campaign by encouraging .
their families and friends to get involved '
in the campaign. Families and friends
can get more infonnation on the
campaign and how they can participate
by
visiting:
www.fulao;orglFamilylssues, or by
writing:·FPLAO. FAIR Campaign. P.O.
Box 660-387. Chuluota, FL 32766

PRISON OFFICIAL
ADMITS
VIOLATIONS

The former director of the
state
Correctional
Privatization
Commission. C. Mark HodSes,
recently admitted to violating several
ethics laws including use of state-NEEDEDowned equipment for his private
PHONE BILLS
Several months ago FPLP staff asked
consulting business and failing to
prisoners and their families. to send us copies
disclose speaking fees paid to him by
of phone bills showing the high rates being
companies
seeking to do business
charged families to accept phonecaUs from
with
his
agency.
their incarcerated loved ones in Florida
Hodges who is now working
prisons. We got a good response. We have
the in,state rates piMed down. We are
for Homeland Security Inc., a
asking for more bills on out-of-state calls.
Nashville,
Tennessee-based
These bills are needed to support the
company.
claimed
that
the
Families Against Inflated Rates (FAIR)
complaints were nothing more than a
Campaign effort to get the rates reduced.
union smear campaign designed to
Please send us a copy of your phone bill
showing how much you are paying to
derail Florida's experiment with
maintain
your
communication
and
privatized, nonunion prisons. The
relationship with a Florida prisoner. Send to:
ethics complaints were tiled by the
FPLP
Florida
Police
Benevolent
FAIR Campaign
Association,
a
labor
union
P.O. Box 660-387
representing correctional officers in
1F======iC~h~uiiIU~oiitaiE' ~FL~31iE7e66~===!!5!iiI Florida's state-operated prisons. The
union claimed Hodges was too cozy
with the companies his agency was
supposed· to regulate and he refused
all kinds
to hold them accountable for failing
.to deliver savings the industry
Word Processing
promised nearly a decade ago.
Desktop Publishing
In
2002
the
Florida
Resume
Legislature required the companies
Black I Color
operating aU five of Florida's
privately run prisons to begin
Printing and Copying
delivering the minimum 7 percent
Business I Personal Cards
savings in operational costs they
Electronic Mailing (email)
.initially
promised or their contracts
Comb Binding
would
be
revoked.
.
Laminating
Recently,
state
auditors have
Faxing
questioned several of the contracts
awarded private prison operators.
Mall Inquiry to:
Gov. Bush commented that he has no
L'E'I' !M Y :FIN{1'E'RS
desire to increase 'the number of
'DO YO'l1'R 'I'YPIN{1
privately operated prisons. • .
Sandra Z_ Thomas
1911 Marcia Dr.
Orlando, FL 32807-6357

of

G

407·273·4099
OPEN 24/7

By Appointment Only

20--------------

flORIDA PRISON LEGAL

. .i~.

~,J

.'

DONATIONS
NEEDED
,Florida Prisoners' Legal Aid;
Organization,
Inc.,
receives ~
absolutely no state or federal funds '
for operation. That way the
i s ' completely.
organization
independent of politics or special :.
. interests in representing the interests ..
of or providing information to.
prisoners and their families, friends
and loved ones in Florida. However, .
that also means that FPLAO, a
SOl(c)(3) federally recognized non- .
profit organization, depends on'
members and supporters to fund the
organization's activities. Right now
FPLAO has several important ..
projects going on. Donations are '.
needed to help fund those projects :;
and to allow FPLAO to continue ~
helping prisoners and their families.
Please make a donation today, in any
amount, every little bit helps, to keep "
FPLAO strong and growing. And ;
encourage others to become FPLAO ~
members. (All members receive this ~
newsletter as a member benefit) ~'
Make donations payable to:

'Florida Prisoners' Legal Aid
,arg.,/nc.
P. O. Box 660-387
Chuluota, FL 32766
: Newl Make a donation online with :
your Visa or Mast~rCard at:

wwwfplao.org

PerspectIves - - - - - - - - - - - - - - -

.

.~-

Florida Prisoaer's Udgadna Manual
Volume I
1411l11l/o1flflllllJII Oil MOil DbdplJne,
M~ IIIUIApJ¥l/* Rnkw

a.u.c

Soft cover - 313 pales- Albert PubUsblag
(2002)
Special Low PrIce for l'rIIoaen: S24.9S plUl 53.9S S&H
AMust Have Book fOr Every Florida PrIsoner.
Doing time In a Florida prison? If'so, you nced a copy of RorldD
tmU''6 UtlgtIttc1I MIJIfIIIll. Volume I. EVeI)' Year 1housands or
~1IJwy rcpolU lIN wriacD apiDst Flonda prisoners. 1bc rcsuIlS
are ClCIDfincmcD1; loss or ~ I'CSIricdons on mail, telephone
IllCC8, visitation; _
In IIIlII1)' cases, conflncmcnt 011 Close
Maneaemcnt fOr months or even years. Most DRs, however. aIIl be
. beat if you have the right Infonnation' and know the proper
., .
proecdura.. How can DRs be etrecdvely dcf.cndcd aplnst and
.
. cballcapd'1 What are the proper Icpl and admlnIstratIvc rancdlcs?
;' , What Icpl protee:dons exist? Do prison oftlcials have to comply with
!i ~ •.~ the!r ~ rules? WhIt can be d01lc to stop caf'on::cment ofm&dc up or
f
•,
invalid rules? How do you ftl.e and litigate a Petition for Writ 0(
,
Mandamus, Certiorari.' or Appeal? Volume I of FlaridD 'PrilOM"',
"1. Utlgtltlt1" MQIIUQ/ will lIDSWCI' all those questions and many mme.
~\ It's. self-help survtvI1 sufdc fOr Florida p~crs.
)aUf CIIlpy

tlldIyl To order scad

nus

plus $3.9S sIllppiDa and

!sIndUlIa to F1lII1dG PrIIDIt /qIl p ~ . AIIn: LItIpWm MuwaI, PO
801660-387. QwIl1Dl1 FL 32766.

NOTICE
Darrell Blackwelder is no longer
associated with FPLAO, Inc. Regular
readers ofFPLP may have noticed that
several months, ago Darrell Blackwelder
joined FPLAO's Board of Directors and
bec:ame an administrative assistant for
FPLP. Darrell also ran a couple of
advertisements in FPLP during 2002 for
his paralegal services as Esquire and
Associates located in Brandon, Florida.
Darrell was invited to join the
FPLAO Board of Directors and FPLP
staff after serving several years in
Florida's prisons. He convinced our staff
that he had straightened out his life and
that he would be a valuable ass·.)t to the
organization
wilh
his
"inside"

knowledge and legal skills. For several
months Darrell did appear to be doing
well, but then in Sept~mber 2002 he
broke contact with FPLAO. In October
information was received that Darrell
had been arrested in Alabama and
charged with several armed robberies.
Later that information was confumed.
We stilI don't fully know what
happened with Darrell. We can't
apologize for trYing to give him the
opportunity to improve his life, though
we are sony it turned out' as it did for
him. Fortunately, his problems had no
impact on FPLAO or FPLP. His
advertisements
in
FPLP
were
immediately withdrawn as soon as we
were informed of his troubles.

--------------21------..--------

- - - - - - - - - - FLORIDA PRISON LEGAL

Perspecbves - - - - - - - - - -

Jj

~,~;

4

I__

RH
__O.T.O.N_&.H.A.Y.M
_A
_.N.,.P.eA.e_,

,J

LOREN D. RHOTON
Attorney At Law

.

POST CONVICTION
ATTORNEY
,,~'_.,:: ~
~ ,;~ i.'~~~'>":·~;";:':':·':<'~i:·:.~~.,":· ~~:
:::~: ~,~ ;:;.?:-t::::;':;~';"i;::i)k:a...\~A;iijt.<;

~.: ..!.':..:", . ~.,•. :_:,_~... ~._.L>_ .. __.:. ~._ _,

_;::.'

...••

:... .... ::.

.

....;.

. . .;..:"::::..:,

{;:~

DIRECT APPEALS

~!~

STATE POST CONVICTION,

{;:~

SENTENCE CORRECTIONS

{;:~ FEDERAL PETITioNS FOR WRIT

OF HABEAS CORPUS
~!)

NEW TRIALS

{;:~

INSTITUTIONAL TRANSFERS
412 East Madison Street
Suite 1111
Tampa Florida 33602
(813) 226-313,8

;·~-Ib·~F~'~~~~~~,;~~·~;;1.'~~·nlj'r·
i:·:.?:·::·~.::.:/):.·'-·

he hiring oC a lawyer is an important decision that should not be based solely on advertisements. ~
DeCore you decide, ask us to send you free written iDCo~ation about ourq...~~qs..,.. ,.. ~.;"

;·:d~·0j ":;.'.

". ;",,'.=':'

_".',.". ,::":, .• :,'i·,.:'

"....

._

~.-.'

.

~.....:...... ~ '..~

._."

:.

.'.~~. ::·~·:J1.~)·.:6:"(.~·..::f1:::~;"~j::L":'::;<:'..-::-: . :..i:::.:,·~ ~.: ..::.:·::;·~,i~~·.,:;·::,~::i;:·<:;·:L·Y:

\l,ifY·:~'·~:::···~~·:·

\,..•.:

..

.•

.

~;

\.1
,.
l::l-?

t"-~

:-~

~::i

~'l.!'

",:~~
.'

_ _ _ _ _ _ _ _ _ _ _ _ _ 22

_

- - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives

--------------

Florida Prisoners' Legal Aid Organization Inc.
,

BECOME A MEMBER
YES 1 I wish to become a member ofFlorida
Prisoners' Legal Aid Organization, Inc.
3. Your Name and Address (PLEASE PRINT)

I, Please Check ./ One:

o

_ _ _ _ _ _ _ _ _ _ _ _DC#

Membership Renewal

_

Name
'0 New Membership
Ag~ncylLibraryllnstitution

IOrgi

%. Select ./ Category

Address

C $15 Family/AdvocatelIndividual

C $9 Prisoner
City

C

State

Zip

$30 AttomeyslProfessionals
Email Address and lor Phone Number

[] $60 Gov't AgencieslLibrariesiOrgsJetc.

rr Please make all checIcs or money orders payable to: Florida Prisoners' LcgaI Aid'Organization, Inc. Please complete the above fonn and send it
with tho indicated membership dues or subscription amount to: FloridD PrlsOMrz' Legal Aid Organlzllllon Inc., P.O. 80% 66(J.387, ClndllOta, FL
32766. For family members or loved ones ofFlorida prisoners who areunable to afford the basic membership dues, any contribution is acceptable
for membership. New, unused , US postage stamps are acceptable from prisoners for membership dues. Memberships run .one year.

.

.'

.

.

. MEMBE~/SUBSCRIPTION RENEWAL
,

,

Plea,e check yourin~Uinglabel to determine your term of
membership and';,{ ,~st mc;mth of subscriptlon'to FPLP.On
the top line .of the mailing label will be a date, such as
~Nov 04-. That date indicates the last mo~th and' yellr
of your current membershIp with FPLAO or sLibscription to
FPLP. Please take the time to complete the enclosedfonn
to renew your membership and". SUbscription before the
expIration date.
MOVing? Transferred? If so, please complete the
enclosed address change form so that the membership
'rolls and mailina list can be updated. Thank voul

Prisoners: Have a free copy of FPLP sent to a family
member or friend on the outside. Simply send us their
name and address on this fonn. PLEASE PRINT.

Name
Address
City
State

Zip

@

r:r Complete and Mall to:
FLORIDA PRISON LEGAL PERSPECfIVES
P.O. Box 860-387, Chuluota. Fl32788

23 - - - - - - - - - - - - - -

PRISON LEGAL NEWS
SUBMISSION OF MATERIAL TO

FPLP
Becausc of the large volume of mail being

,
r

received, financial c:onsider:dicms, and the.
inabltlty to provide individual IcpI assistance,
members should not send copies of Ic:gaJ
documents of pcIIdlng Of potential cases to
FPLP wiIhout having tint contadCd the SIafI'
and receiving directions to send mnu:. Neither
FPLP. nor its sIDff, an: responsible for any

unsolicited nwcrial scnt.
Members an: requested to continue sending
news informalion. newspaper c1ipplngs (please
include name of paper ana date),
memorandums, photocopies of fmal decisions
in unpublished cases, and potential articles for
publication. Please scnd only .copies of such
malcrialthat do not have to be returned. FPLP
depends on YOU, ilS readers and members to
keep infonned. Thank you for your
cooperation and participation in helping 10 get
the news out. Your efforts an: greatly
opprecWcd.

PriIDn lApl News is II 36 pso IlIOIdhIy IIII8lIZiDo wbidJ bas
becIl puIlIisI=t siIlcc 1990. II is edilecI by WllIblqlcm SUlC
-prisonu Paul Wris!ll Eacb issue is pacbd wi1II SlIIIIIIIIries
aIld analysis of I'CCCIlI COIIIl cIccisi=Is hm aOlIIId \he COUIIlI)'
cIcaIiIIs wiIh priSOIItr rig!dl lIIId wriIlcn &om II priso=r
pcnpec:tM. l1le =sazjmI oRen ClIIricI IIIticIcs tram
IIIm=ys
IJow.co IiIipIimI lIlMse. Also iIIdudcd ill
arlida daIiog wi1II prisclIHda=I
each issue nrc _
Iln/3lllC ami a:lMsm ioID \he U.s. ami aOlIIId \he WOI!d.
AmmaI subsaipli= I1ItcI SI8 for prisanaa. Ifyou ClID'I .
IIfford fD scad SI8 l!:I - . . scad l!:I ICISI 59 and PLN will
pron!C \he issUes l!:I SI.5O each lOr II six IlIOIIlh I1Itl5cripliou.
New lIIld IIIIUSed JlOSflIlle IIIImpS or CIIIIloued CIM!opcs may
be: used lIS JI3)'IIlGIt.
_
Fer IUlII-in=rccrat iIIllMcIuaIs, \he yemIy IlItiscriptilm
nIC b $2.5. InsIiluIiouI ClI' pni(caionaI (lIIIclmeyS, h1mvies,
govcramcnt agcm:ies, ~) subscripliaD I1ItcI =
$60 II year. A lIlDp!e copy or PLN isllVlilable lilr $I. To
subscn"be 10 PLN, CCIlIaCt
PrlsDtt LtgaJ Nnn
Uoo NW 8th1t Slim
PMaNB
Sftmle. WA 981/7

If SO, please complete the below Information and mail it to FPLP so

that the maI~g usa can be updated:

.

smull

NEW ADDRESS (pLEASE PRINT CLEARLY)

=

Name
IDst.

Address

see PINs WebsIte at

~Mall to:

Imp: . w-.prlsDnle»aJtIt!WS.Drg

Zip

State

City

FPLP. P.O•.Box 66D-387. Chuluota. FL 32766

_ _ Email PlH at

et@pn.u1II/~org

... ...

........ ....,'"" ,
S9 'ON 1IM13d
1:1 'OO3IJ\O
OlVd
30V.1SOd :s'n
.u:fO~d-NON

99Ull U

1ltOnJ1l~

L8t1l99 XtJU Od

80AII:lodSlJ Od
loB01 U081Jd 0PIJOI:l