FLORIDA PRISON LEGAL

ers ectives
VOLUME 10

ISSN# 1091-8094 •

ISSUE I'

A CALL FOR ACTION
Your Help is Needed Now
.to Reduce Prison Phone Rates
by Bob and Teresa Burns Posey
, During the past year Florida Prisoners' Legal Aid
Organization (FPLAO) has escalated its efforts in the
Work to obtain lower collect-call telephone rates for the
families and friends of Florida state prisoners. Under a
contract entered into' by the Florida Department of
Corrections (FDOC) and telecommunication's badboy
MCI, the families and friends of state prisoners are being
charged outrageously excessive collect-call rates for every
phone call they accept from their incarcerated loved ones.
Without proper or required regulation by the Florida
Public Service Commission, the FDOC is being allowed
to operate the prison phone system as a monopoly and
give the system-wide phone contract to the Company that
guarantees to give the FDOC the largest kickback
commission on the rates charged, resulting families and
friends being gouged to maintain their relationships with
those in prison.
Under the FDOC's prison coUect-ea1l phone
monopoly, prisoners may only make collect calls to an
approved list of up to 10 family members or friends. Such
calls can nonnally be made everyday, but each call is
automatically limited to only 15 minutes. Capitalizing on
the need of families and friends to maintain. their
relationships with those prison, the FDOC for almost I5

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JAN/FEB 2004

years now has structured its phone contracts so that
prisoners' families and friends are actually subsidizing
prisons. In those 15 years the FDOC has collected tens of
millions of dollars in commissions off the inflated rates
the phone companies are forced to charge to get the prison
phone contract and pay the FOOC's extortionist
commission. Currently, the FDOC is requiring Mel to
give it a commission of 53% of every dollar charged. In
order to do that, MCI is charging prisoners' families and
friends the highest rates allowed by law to accepted calls
from their loved ones.
Currently, in-state long distance calls of only 15minutes are costing prisoners' families and friends more
than 55 for each call. When prisoners call home out-ofstate the rates are much higher: a IS-minute long distance
out-of-state call costs the families and friends almost 520
per call. This past fiscal year, 2002-03. the FDOC alone
collected almost $17 million (516.64 m) on commissions
from MCI. and turned, a blind eye on the burden such
exorbitant gouging causes families struggling to hold on to
their families.
FAIR Campaign
For several years FPLAO has worked to try to
bring attention to and get a reduction in the colJect-ea1l
rates being charged prisoners' families and friends. The
Florida Public Service Commission. which has exclusive
authority and responsibility to regulate phone services in
Florida, is aware of the FDOC's rate gouging, but is
apPMently reluctant to interfere smce it is a fellow state
agency that is
doing it. In 2000 a bill was introduced in
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Prison Legal News Sues FDOC
Florida Prisoner Receives Kosher Food
Post Conviction Comer
Notable Cases
PRIDE Prison Industries Under Scrutiny
Lax Security Contributed to Guard's Death

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·FLORIDA PRISON LEGAL
PERSPECTIVES
P.O. BOX 660-:187
CIIUI.UorI'A. 1t'J. :12766

Publishing Division of:
FLORIDA PRISONERS' LEGAL AID
ORGANIZATION, INC.
A 501 (c) (3) Non-profil Organizalion
F.. (407) 568-0200
Email: tbhllji.lIolcl.ll!
Wcb~l1c. \\\)" Iplau SUI{
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FPLAO DIRECTORS
Teresa Bums Posey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton. Esq.
Oscar A. Hanson, CLA
Linda E. Hanson

Publisher
Editor
Associate Editor
Research
Administrative Assistant
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Teresa Bums Posey
'Bob Posey
Oscar A. Hanson
Sherri Johnson
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ADVISORY BOARD
William Van Poyck
Philip Bagley
Michael Lambrix
Susan Manning
Gene Salser
Mark Sherwood
Elizabeth Green
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Michael Palmer
Terry Vaughn
Enrique DillZ
David Reutter
Linda Gottieb
Anthony Stuart
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FLORIDA PRISON LEGAL PERSPECTIVES (FPLP) Is Jlublishcd UJI 10 six limes a
Florida Prisonas' usal Aid Orsaniz:llion.lnc.• P.O. Box 660-387. Chuluolll.
FL32766
FPLP is a non-profit Jlublicalion focusing on Ille Florida Jlmon and criminal justice
systems. FPLP Jlrovides a vehicle for news, informalion, and resources affectinll
,,"SOncR. their families. friends, loved ones Bnd the general Jlnblic of Florida.
RcduClion ofcrime and recidivism, mainlCJlBJU:e of family lies, civil righls. imJlrovino
condiricms ofconfinement, JIfOmotinll skilled coun access for Jlfisonm.. l\IId JIfOmOlinll
accounlllbility llfprison llfficials arc all issues FPLP is dcsill"Cd 10 addlessFPLP's nlln-allorncy volunlCCf staffClInnOllCspllnd 10 requests for lesal adVIce. Due
10 the volume of mllillhat is received and volunteer staff limilations, all corrcspclndence
lilal is recd,ed oallllOl be ,espend.,lla. bllt all m~il does ..ec<i,e illd~idual .•Il~lIliol! ..
Pcrmissilln is pled 10 fCJ!rinl malenal BJlJ!CvlIIll In FPLP lhal deles nllllndicate IllS
copyrighled povided lhat FPLP and any indicated autllor arc identified in lhe rcJ!fint
lIIId a copy ohhe JlubliClllilln in whiclllhc material is Jlublished is JIfOvided 10 the FPLP
J!1lblishc.-.
.
This Ilublicalion is not meant 10 be a subslihrte fllr lellDl or lllher Jllofessillnal advice.
lhe- malenallli H'LP should 1101 bc lehed 011 .s alllhorll.l..e .lId may nOI conlain
SlIfficienl infarmsrion 10 deal with a Icsal Jlroblcm.
FPLP is automatically senllo all members of FPLAO. Inc.• as a mcmbeRhill benefit.
Mcmbcnhip dues for FPLAO.ln•• llJ!CrDle ywly and arc 59 for Jlrisoncrs; 515 fllr
family membcrslindividuaJs; 5.10 for allomcys; and S60 for allencies. Iibrnrics, and
instilUlionl. Family members or 10"ed ones ofprisllners who are unable 10 affllld lhe
bui. mcmbeRhip dues may receive membershiJl for any size donalilln they can ltlTllnL
Prisoners may pay membership dues wilh new unused pnslDge stamJlS. Prisoners on
dwb row or eM wllo ClIMlll alTord memberihiJl dues may request a wai>-cr of dues,
llltuch will be granled as finances JlCfmil.

)CIr by

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

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the Florida House of Representatives (H8-1975) that
would have made it law that the FDOC give the prison
phone contract to the company guaranteeing the lowest
rates to families, instead of the largest commission to the
FDOC. -But, because enough families didn't lobby their
legislators to support that bill it died without being passed
into law.
A little over a y~ ago we here at FPLAO
decided to make it a major goal of the organization to
p~sh the issue for a reduction in the p~ison phone rates.
We initiated the Families Against Inflated Rates, or FAIR,
Campaign. With funding from a grant and member
donations we have prepared, printed and distributed
several thousand FAIR Campaign action packets to
prisoners' families and friends. Those packets detail how
the FDOC' is gouging people on the phone rates and
provides infonnation for contacting state legislators with
the facts of the situation and provides complaint fonns to
file with the Public Service Commission (pSC) and state
Consumer ServiceS (CS) office.
The PSC and CS office has been responding to the
complaints by claiming they can't do anything to help and
wasting people's time by directing them to complain to
the FOOC and MCI- to co-conspirators in the gouging.
Until recently, state legislators have also turned a
deaf ear' to their constituent's complaints about the prison
phone rates, but that is changing. Four state legislators are
currently investigating the FOOC's phone rate monopoly.
There is a real possibility that one or more bills will be
introduced during the legislative session that starts in
March 2004 to again attempt passage of law to stop the
FOOC's gouging of fiunilies. However, it is not enough
just to get a bill introduced, there must be support from
other legislators to get a law passed - which only comes if
enough people call on their legislators to support such a
bill.
Call For Action
Your help is needed right now. We here at
FPLAO who have been working on the FAIR Campaign
are calling on every prisoner in the FDOC to contact your
fiunilies and friends here in Florida and have them contact
their local state representatives 'and senators aSking them
to personally introduce or support introduced legislation to .
significantly reduce the prison collect-call phone rates.
Please do that today, don't delay. We're also asking that
you share this with other prisoners and get them to have
their families and friends contact their legislators about the
phone rates.
To those reading this who are not prisoners,
please contact your legislators by phone, mail, or email
asking them to introduce or support tegislation requiring
the FDOC to only award the prison phone contract to the
company giving the lowest reasonable colleet-call rates'to
the families and friends ofprisoners.

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Writing letters is also' an excellent way to educate our
lawmakers' about the excessive and burdensome rates
attached to the FDOC's phone rate monopoly. In a letter
you can state your position briefly, but usually, in more
detail than in a phone call or an email. Some tips for
writing legislators are: Be brief, try, to keep your letter to .
one page. Be neat and proofread your 'letter for errors.
Use your own words' and explain the impact the high
collect-call rates have on your family and relationship
with your incarcerated loved one. Be respectful and ask
for a response. If the response' is unsatisfactory, be
persistent. write back politely but fmnly requesting a more
specific answer.

Please do not put this off. Legislators need to be
contacted preferably before the 2004 Regular Session
starts in early March, or during the early part of the
session which runs for 60 days.
Below you will find infonnationabout how to
obtain contact information for your local representatives
and senators, a brief outline of how to effectively lobby
legislators, and where to find more 4tformation about the
FAIR Campaign and FDOC Telephone Monopoly on the
Internet.
Let's all work together-and get this done.
CODtaeting Legislaton
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. If you don't already know, its easy to find out
who your local state representative or senator is and how
to contact them.
Your local public library is one easy source, of
information about state legislators and how to contact
them.
You can also obtain the information for state
representatives from the Clerk of the House of
Representatives at 850/488-1157, or about-local state
senators from the Secretary of the Florida Senate at
850/487-5270.
.
If you have acCess to the internet. there is a
complete 'directory of all state representati~es and
senators, including their local and Tallahassee addresses,
phone numbers, email addresses and what district they
serve located on the Legislature's website at
www.leg.state.tl.us
Prisoners: The Florida Bar Journal in your
institution's law library also contains ~ directory for

Calling your legislators is al5,o another important way of

voicing your opinion. You'll probably speak with the
lawmakers aide, but be assured your message will be
passed on to the legislator.
E-mailing is a fast and easy way to communicate with

legislators. You can fmd all Florida legislators' email
addresses on the Legislature's website (address noted
above).
Presenting testimony at. a public forum is very effective in

having your voice heard on an issue. Regular public
meetings .are, held around Florida for Legislative
Delegations where local 'lawmakers can hear from
citizens." You can contact the below offices to fmd out
when delegation meetings are scheduled and to arrange for
ypu to speak atthem:

legis~tors.

Communicating With'Lawmaken
Many people think that an ordinary citizen has
little chance of influencing lawmakers. That simply is not
true. What is true. however, is that if you don't speak. up
and have your voice heard your local legislato~ may
never even know a problem exists. Once a problem is .
brought to their attention, most legislators will at least
look into the problem and try to help you; after all, they
want every vote they can get when election time rolls
around.
Aface-to-jace meeting with your local legislators (or their

aides) is usually the most effective way of delivering your
message to them. All state legislators haw" officeS in their
local areas and in Tallahassee where you can qmke an
apPOintment to meet and talk with them or their aides. A
face-to-face meeting is an excellent way to make your,
views known and help our lawmakers or their aides
understand the effect the FOOC's prison collect-call
phone monopoly is having on families.

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Brevard Delegation, Ph# 3211637-5407
Broward Delegation, Ph# 954/357-6555
Website: www.broward.orgllegislative
Duval Delegation, Ph# 904/630-1680 '
Website:
www.coj.netlDepartmentslDuval+Legislative+Delegation
Hillsborough Delegation, Ph# 813/272-5865
Website: www.hillsboroughcounty.orgllegdel
Miami-Dade'Delegation, Ph# 305/375-4088
Orange Delegation, Ph# 407/836-7395 '
Palm Beach Delegation, Ph# 561/355-2406
Website: www.pbcgov.com/pubinf/legdel
Pinellas Delegation, Ph# 727/464-3592
(Note: The public delegation meetings may be suspended
until aft~ the Regular Session that runs through March
and April, but if we do not get legislation passed this year.
in the regular session, people should then attend the
delegation meetings and call for reform of the FDOG's
prison phone rate monopoly so lawmakers are informed
that the problem exists.)

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Let's Redaee The Rates
.
Prisoners' family, members and friends in several
other states where· the prison system had similar phone
rate gouging going on have been successful in obtaining,
lower rates. (You can obtain more info about that on the
Internet at. www.cure.Org). If we all work together, we
can do the same here mFlorida. Because of the interest
already being shown by some legislators and other recent
events (see next article) we here at FPLAO working on the
FAIR Campaign believe there is a very good chance to get
the phone rates reduced this year - if we all do our part.
Please contact your state legislators as soon as possible.

"Never doubt thai a small
group ofthoughtful citizens
can change the world,' indeed
.it ~ the only thing that ever
,

has."
- Margai'et Mead.

Lawsuit Filed·Against
FDO,C Over Censorship
of Phone Rate Reduction
.Advertisements'
by Bob Posey
On January 12, 2004, Prison Legal News, which
is based in Seattle, WA, and reports on prison issues
nationwide, filed a federal lawsuit agaiost the Florida
Department of Corrections for banning that magazine
from state prisons because it carries ads for discount
te/ephon~ services that help prisoners' families and friends
obtain lower collect-call phone rates. (See: FPLP, Vol. 9,
Iss. 3, May/June 2003).
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The FDOC started banning Prison Legal News
last year obstensibly to protect its prison phone monopoly
that generates upwards of"$20 million for the FDOC each
year through commissions from MCI, the prison system's
contracted phone carrier. The reason giVli91 by the FDOC
for banning Prison Legal News. is because it contains
"advertisements that encourage inmates to use phone
companies other than those assigned to the institution by
giving them lower rates... It also violates the security of
the institutional phone systems."
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In the lawsuit filed by Prison Legai News it's
claimed that the FDOC's "reasons" for banning the
magazine is essentially nonsense since the controversial
advertisements are directed at prisoners' families, not
prisoners themselves, since it is the families who pay for
the collect calls made' by prisoners and who are the only
ones who can establish an alternative lower cost rate deal
with the companies listed in the advertisements. Further,
the lawsuit notes that such alternative lower rate setups are
perfectly legal, when done correctly violate no rules of the

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FDOC, and do not violate the security of the FDOC's
phone system. The lower rate calls still are subject to all
of the security features of the FDOC / MCI phone system
- just at a lower commission for the FDOC and leSs profit
forMCI.
Without the lower collect-calling rate setup, MCI
is charging Florida prisoners' families more than $5.00 for
in-state calls of only 15-minutes and almost $20.00 for 15minutes out-of-state calls. The FDOC only gives the
prison phone contract to the company that· guarantees it
the highest commission bacls, currently 53% of'every
d~llar charged by MCI. That results in MCI charging
families the highest rates allowed to accept prisoners'
collect calls to cover what many see as an outrageous
commission.
FDOC spokesman Sterling Ivey said he had not
seen the lawsuit, but he defended FDOC's monopoly
arrangement with· MCI.
"It's a revenue-generating
contract," Ivey said. "We chose MCI because we got the
greatest return." This past flSC81 year that return was
almost $17 million,· all paid by pris(;>ner's families and
friends.
"Banning ,Prison Legal News from Florida
correctional institutions is the kind of censorship you'd
expect in Cuba or Iraqi but not in America," said Randall
Berg, an attorney with the Miami..;based Florida Justice
Institute, which is helping represent the magazine in the
lawsuit.
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Mickey Gendler, Prison Legal News' attorney in
Seattle, said the lower'rate services advertised in the
magazine are, "A perfectly legal way to help prisoners'
families avoid being gouged with unconscionable longdistance rates."
In addition to challenging the censorship of
Prison Legal News because ofthe ads itcarrles the lawsuit
is also challenging a recently enacted rule of the FDOC
that prohibits prisoners from receiving compensation by
magazines for articles they may wrne. That challenge was
included because last year the FDOC placed Florida
prisoner David Reutter in confinement after learning he
was receiving a soudl 'compensation from Prison Legal
News for writing articles for the magazine. The FDOC
claimed Reutter violated a rule against prisoners operating
or conducting a business, and especially prohibits· writing
for publication that may generate revenue for the prisoner.
The Prison. Legal News lawsuit, which names
FDOC Secretary James Crosby, Union Corr. lost. Warden
Paul Decker, Fla. State Prison Warden Joseph Thompson,
and Charlotte Corr. lost. Warden Chester Lambdin as
defendants, alleges that the prohibition on writing
compensation constitutes a prior restraint on the press and
is a violation of free speech, "free press, and· association
protected by the First Amendment. ,
.
The lawsuit also asserts an additional claim, that
the FDOC failed to notify Prison Legal News the
publication was being censored, failed to respond to the

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magazine's appeal of the censorship and, perhaps most
importantly, failed to notify the magazine's publisher of
each impoundment it made of the 'magazine from each
Florida prisoner subscriber. The lawsuit alleges such
failures violated rights protected under the Fifth and
Fourteenth Amendments.
The lawsuit is asking for a preliminary and
pennanent injuction from the federal court prohibiting the
FDOC from refusing to deliver Prison Legal News to
Florida prisoners and ordering the FDOC to deliver all
witlJheld issues of the D:l8gazine to prisoners, prohibiting
the FDOC from punishing prisoners who write articles for
publication and who receive compensation for same, and
requiring the FDOC to provide notice .and an appeal
procedure for each impoundment, rejection or other refusal
to deliver Prison Legal News' mail to Florida prisoners.
The lawsuit also seeks declarations from the court
that the phone service ads in Prison Legal News do not
violate any prison rules, that FDOC's prohibition on
- prisoners writing for compensation is unconstitutiona~
and that the FDOC's failure to provide notice to the
publisher of magazine impoundments, rejections. and
refusals to deliver violates Due Process and is
unconstitutional. The lawsuit also sedcs attorney fee$ and
costs.

[Note: In the last issue of FPLP it was noted that the
rejections of Prison Legal News had been overturned in
October 2003. That was true. However, just days after
the last issue of FPLP went to the printer. the FDOC
suddenly reversed course and on Dec. 30, 2003. again
reviewed Prison Legal News and reimplemented the
rejection of all past and future issues carrying the phone
service ads.
It was also noted in the last FPLP that Vol. 9.
Iss. 3 of FPLP. that first reported on the PLN rejections,
rerun the PLN phone service ads, arid informed prisoners'
families how to set up their own alternative lower collectcall" rate system, had also been rejected by the FOOC at
several prisons. but was being rt>-reviewed by the FDOC.
Info received by FPLP indicates the rejection of Vol. 9,
Iss. 3 was overturned. All prisOners who had that issue of
FPLP impounded should have received it by now. if not,
please write us and let us know. Direct such mail to
FPLP. Attn: Vol. 9, Iss. 3, P.O. Box 660-387. Chuluoia,
FL 32766.] •

Ex-Felon Voting'Rights
by Richard Geftken
In a classy class action suit, Johnson v. Governor
ofthe State ofFlorida, et ai, 17 FLW Fed. C138(ll lh Cir.
12115103), has ruled in favor of restoring the right to vote
to Florida ex-felons. If the reasoning standsfrrm, this is a
landniark decision which can restore voting to ex-felons in
all seven states presently discriminating against them.

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Compliments for the solidarity and courage of the
eight ex-felons bringing the suit are deserved from a
grateful nation.
They are Thomas Johnson, Eric
Robinson, Omali Yeshitela, Adam Hernandez, Kathryn
Williams-Carpenter, Jau'dOhn Hicks. and John Hanes.
Mr. Yeshitela was dismissed earlier as a plaintiff when his
civil rights were restored for being one of the hundreds of
thousands who were innocent-all along.
Summary Judgment had been granted to Gov. Jeb
Bush by the U.S. District Court for the Southern District,
and plaintiff's appealed.
The Eleventh Circuit held summary judgment
improper. The facts demonstrate violation of the Pt, 14lh,
15lh• and 24lh Amendments, and the Voting Rights Act of
1965. section 2, (42 USC s. 1973) as amended, opined the _
court.
The Court discussed the history of the
disenfranchisement in considerable detail. In 1868 it was
adopted into the Fla. Constitution to disenfranchise freed
slaves together with a legislative apportionment scheme
designed to diminish representation from black
communities. 'When re-enacted in 1968. blacks wete more
than twice as likely to be barred from the vote on account
of a prior felony than non-African Americans. This
disparity was found far more disproportionate today, just
36 yrs. later. Today, Fla. currently disenfranchises
613,000 men and women because of a prior conviction.
This is more than enough to impact an election; and more
people than in many major cities. Of these 167.000 are
African Americans ofvoting age.
Put another way. 10.5% of all African Americans
cannot vote, as compared to 4.4% of non-African
Americans. Or. in terms of the black male population, one
in six cannot vote -in Florida because of a prior felony
conviction. It was described as a tainted policy. More
explicitly, the Court concluded, "[U]nder the totality of
the circumstances test, - this evidence demonstrates
intentional racial discrimination behind Florida's feJon
disenfranchisement as well as a nexus between
disenfranchisement and racial bias in other areas, such as
the criminal justice system, in violation of the Voting
Rights Act. For the foregoing reasons, summary judgment
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should not have been granted...".
- - Therefore" the case was retuned to the 10wercOurl,
where, in light of this opinion, contradiction with the 11 th
Circuit's careful reasoning should not be expected, or
prove likely to survive appellate review if it dOes,
If the lower court acts quickly enough, ex-felons
could vote as early as this November's Presidential
Election, but continued Bush opposition and obstruction is
to be expected. Using such disenfranchisement excuse to
disqualify voters who had committed no felony at all was
the most significant trick employed to give the state's
electoral vote to the Governor's brother in 2000.
As for the remaining six states, the Johnson
approach to the problem appears to be worth following. •

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Florida
Constitutional Amendment
Sought to Restore Vote
to Ex-felons
Ten days after the federal appeals court in Atlanta
ruled that tht; right to vote should be restored to ex-felons
in Florida (See above article, "Ex-felon Voting Rights"),
volunteers from churches, civil-rights groups and other
community organizations started working to get an
amendment made to Florida's Constitution to permanently
restore the right to vote to ex-felons.
"
The citizen initiative' is being encouraged by state
Senator Mandy Dawson, D-Fort Lauderdale, who has
spent 10 futile years asking her colleagues in the state
legislature to put such an amendment on the. ballot
themselves.
Again, this year, Dawson has already
introduced bills for the 2004 legislative session aSking
lawmalters to support the amendment, but expecting the
same resistance she has also formed the Committee to
Restore, Dignity to collect the nearly 500,000 signatures
needed to get it on the ballot despite what the legislature

does.
Florida is one of only seven states that do not
automatically restore the right of ex-felons to vote once
they have completed their sentences. Under Florida law,
ex-felons can only have such right restored through a
complicated and arduous application and hearing process
involving the governor and state Cabinet, sitting as the
clemency board.
Just how many Floridians have had their voting

Orange County to Pay $2.5 Million in
Jail Death
Orange County has agreed to pay $2.5 million
to settle a lawsuit over the death ofa county jail
inmate. The agreement was reached with the
family of Karen Johnson who suffered a heart
attack and lapsed into a coma in June 2001, four
days after being jailed for a traffic infraction ~d
not being allowed to take daily, prescribed doses
of methadone.
The payout comes five years after Orange
County taxpayers paid a record $3 million to
settle a lawsuit in a similar death forcing a jail
inmate to quit methadone cold turkey.
In May 2002, a Jail Oversight Commission
made up of 27 community leaders appointed by
County Chairman Rich Crotty released a highly
critical report and recommended 200 changes.

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rights taken is in dispute. A 2002 study published in the

American Sociological Review concluded that 613,514 exfelons, of whom 167,413 are black, carinot vote in Florida.
However, the Florida Department of Corrections claimed
in 200 I the number was only 417,898 and did not break it
down by race.
Whatever the number, its too high for opponents
to 'Florida's ex-felon disenfranchisement law who in
December 2003 won the right to pursue a class action
lawsuit challenging the constitutionality of Florida's
voting rights ban in the Johnson v. Governor of State of
Florida case. U.S. District Court Judge Lawrence King
had dismissed the case last year, saying there was no
evidence of 'discrimination when the state re-adopted a
similar voting prohibition in 1968 - the same one that
exists today. However, the federal appeals C9urt has now
overruled King and 'sent the case back to the district court
.
for a nonjury trial.
Lawyers with the Brennan Center for Justice
contend the voting ban is a discriminatory vestige of the
post-Civil War time. They have pointed out that a version
of the law was adopted when the Flori~ legislature was
forced to enfranchise newly freed slaves as a condition of
readmission to the union.
, Governor Jeb Bush opposes automatic restoration
of voting rights to former felons. His spokeswoman, Alia
Faraj, said, "The governor absolutely supports the process
we have in place."
.
To get the citizen initiative on the ballot for
citizens to vote on several groups including the NAACP,
churches, community organizations and unions, working
as the Florida Rights Restoration Coalition, are helping to
collect the initial 50,000 signatures needed to trigger a
required state Supreme Court review of the proPQSed
ballot initiative. Pamela Burch Fort, a political strategist
in Tallahassee, is organizing the coalition's signaturecollection efforts. "We have quite a few petitions that
have been distributed, and· they're coming in at a very
healthy clip," Burch Fort said "I'm quite encouraged."
Senator Dawson said she welcomes the ruling by
the federal appeals court, saying it reinforces rather than
eliminates the need for the petition drive. "l'm certainly
glad it got kicked back for a [trial], it appears Lady Justice
m~y be paying attention to what's fair, but I think the
issue will ultimately be decided by the public," Dawson
said.
[Editor's Note: The Sentencing Project has recently
released a new report documenting the reform of felon
disenfranchisem.ent laws in recent years. The report,
"Legislative' Changes on Felony Disenfranchisement:
1996 - 2003," notes that eight states have removed
barriers to voting for persons with felony convictions.
The report is available on the Internet at:
www.sentencingproject.orglpdfsllegchanges-report.pdfl •

6-------------

_

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

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

Know Your Disciplinary Rights!
The Disciplinwy Self-Help Litigation Manual
is the only manual ofits kind. It covers all aspects
of the disciplinary process, including a detailed
discussion of the draconian changes made in
these procedures by the United States Supreme
Court in Heck v. Humphrey,Edwanis v. Balisok,
and Sandin v. Connor.
The DSHLM discusses how prisoners should
prepare for and conduct a disciplinary hearing.
The Manual provides guidance for prisoners in
determining whether the disciplinary punishment
created an "atYpical and significant h~rdship"
requiring federal Due Process protections at the
disciplinary hearing. The DSHLM discusses
what federal Due Process procedures prison
officials were required to provide at the
disciplinary hearing if the punishment imposed
an "atypical and significant hardship" on the
prisoner. The Manual sets forth the steps
prisoners must take to preserve a disciplinary
guilty rmding for administtative appeal and court
litigation. The DSHLM provides a state-by-state
discussion of the rights prisoners have in a
particular state, and discusses the procedural
aspect of litigating a disciplinary guilty finding
in state coun.
Each chapter cites to hundreds ofcases to
suppon the substantive.and procedural right that
IlI'C discussed in the Manual Based upon these
discussions and cases cited. the DSHLM can
assist the prisoner in preparing pleadings for
filing a challenge to a disciplinary guilty finding.

Daniel E. Manville
Co-Author of the "Prisoner's
Self-Help Litigation Manual"
3rd Edition

Brings you:

Print Clearly:
Name:
Address:

City:

State:

--------

Zip:

Detach and send check or money order, payable to DanielE. Manville, PC., to:
Daniel E. Manville, P.C.
P.O. Box 20321
Ferndale, MI. 48220
Phone· (248) 341·1201

Fax· (248) 341·1204

Email· DSHLM@comcast.net

_ _ _ _ _ _ _~----- - _ - . 7 - - - - - - - - - - - - - - -_ _

------------~--

Perspectives - - - - - - - - - - - - - funding -is not within grasp. The unfortunate resuh is
that we are more willing to build prisons than schools less willing to educate than incarcerate."
Based upon data from the U.S. Department of
Justice, the report found that two-thirds of prisoners had
not received a high school diploma.
The full JPI report; "Education and Incarceration,»
can be found at www.justicepoJicy.org. -

FLORIDA PRISON LEGAL

Florida Parole
Parole Release~ VS, Parole Revocations

a

QlJringthe p8stsevenil yearS there has been dramatic decrease
in the number ·ofparole-ellgible prisoners being granted parole in
Florida. Curiously, the number of parolees who have their
paroles revoked and, who have been refurned to prison has
closely paralleled the number· of paroles granted. The chart
below is based on the fiscal periods shown.

Florida First With
Faith-based Prison

IElParolcd 81Uvotlltlons

I

Chart Values

Fiscal Year
95·96
96·97
97·98
98-99
99.()O
00-01
01.02

Revoked

Paroled
156
137

142

112
111

150
169
114
101
61
02-03
68
Preparf:rJ by the FPLAO Parole Project

118.

98
101
87
86

,

Large Numb~r of School
Dropouts Have Prison
Records
.A new report release this past fall. by the Justice
Policy Institute finds that an alarmingly high number of
high school dropouts end up in prison. By 1999, more
than half (52 percent) of black male high school dropouts '
and one in ten of white male dropouts had prison records
by the time they reached their early 30s, according to the
report. Additionally, the report notes, black males in their
early 30sare almost twice as likely to have prison records
(22 percent) than have a bachelor's degree (12' percent).
. "The fmdings of the Justice Policy Institute
demonstrate that we clearly need education, not
incarceration, if we are to ensure that the American dream
becomes a reality for many - not just some," said Reg
Weaver, president of the National Education Association.
"Education can be the key that ,unlocks closed
opportunities, but all too often we find that the key to a
quality education - adequate and equitable resources and

On Dec. 24, 2003, opening ceremonies were held
at Lawtey Correctional Institution to convert the entire
prison into one where the. entire prison population will
.participate in what is termed faith-based programming.
FDOC Secretary James Crosby, Jr., directed his
staff in Sept. to begin the transition of Lawtey CI from a
regular prison'in to Florida's only prison focused entirely
on religious programming. Since that time prisoners not·
willing to participate in such program have been being
transferred from Lawtey. Participation in the program is
voluntary and available only to prisoners with· a medium
or minimum security rating.
Lawtey CI is one of Florida's smaller main
institutions, only housing almost 800 prisoners. Most of
Florida's main prisons, of which there are 52, house
approximately 1300prisoners.
The expansion of the faith-based programming·at
Lawtey CI will be phased in through March 2004 and is
expected to be fully implemented by April of this year.
The FDOC claims Lawtey CI will be the largest faithbased prison in the country when the transition is
completed.•

Prison Impact on Families
With incarceration Tates in the US at an all time
high, a new study has been done on the effect
incarceration has on families. During October 2003 the
Justice Policy Center at the Urban Institute in Washington,
D.C., released a new report entitled "Families Left
Behind: The Hidden C~sts of Incarceration and Reentry."
Some findings in the report are that:
~

~

~

More than 1.5 million children have a parent in
state or federal prison and an additional 5.8
million children have a parent in jail, on
probation, or.on parole.
Of the 1.4 million adult prisoners in the US,
750,000 are parents of minor children (55 percent
of state prisoners and 6 percent of federal
prisoners).
Women in prisons are an average of 160 miles
from where their children live, while men in

8-------:------------

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

~

prison are, on average, 100 miles away from their
children.
More than half of incarcerated parents never
receive a personal visit from their children. •

Florida Prisoner Receives
Kosher Food
HoUywood, FIa, - A legal battle to secure kosher meals
for an observant Jewish Florida state prisoner serving a
life sentence has been won, but activists say the war on the
issue is not over.
In October the Florida Department of Corrections
(FDOC) agreed to settle a federal lawsuit with Alan
Cotton, the Florida prisoner, which Cotton had filed last
year seeking to force the FDOC to provide' him with
kosher meals compliant with his religious requirements.
The settlement required that Cotton will receive kosher
food, but does not require that other Jewish state prisoners
will receive such food. The FDOC estimates there are
app~tely 600 other Jews incarcerated in the state's
prison system.
.
Cotton's case brought together the Becket Fund
for Religious Liberty, a Washington D.C.-based
conservative legal action foundation, and the Aleph
Institute, a Miami-based nonprofit that advises prisons and
military systems on how to accommodate Jewish religious
practices. in addition to providing support to Jewish
prisoners and their families.
"I wasn't so happy they settled," said Rabbi
Menachem Katz, director of prison and military programs
at the Aleph Institute, w,hose organization sets the number
of "authentic" Jews in Florida prisons closer to 300. "But
the settlement is like getting your foot in the door. We
can use this to help other prisoners. If it went to trial, who
knows what would have happened."
"It was a smart move on the state of Florida's
part," said Derek Gaubatz, an official at the Becket Fund.
"But it was ultimately the client's choice,"
Kosher food is now available in aU federal
prisons, as well as in Miami-Dade, Broward and Palm
Beach county jails in Florida. But some state prison
systems, including Florida, Georgia. , Virginia and
Maryland, have refused to make kosher food available to
Jewish prisoners.
Florida prison officials have cited several.reasons
for refusing to make kosher food available
Florida
prisoners, chief among them is the cost. "A true kosher
meal costs much more," said FOOC spokesman Sterling
Ivey. According to prison officials, it costs S12 ,a day to
provide kosher meals to a prisoner, compared to $2.45 a
day for regular meals.
Prison officials also claim that if they supply
kosher food to Jewish prisoners, ,then other prisoners may
convert to Judaism and demand the special meals, which

to

PerSpectJves - - - - - -.......- - - - - - -

are considered healthier than the standard prison food.
Additionally, officials claim they are concerned prisoners .
who receive kosher food may sell the food to other
prisoners.
Typically, when faced with a potentially losing
case .and to avoid precedent-setting prisoner-favorable
case law if the case goes to trial, the FDOC agreed to
settle with Cotton, 58, rather than suffer a potential defeat
in court. "As a result of recent federal rulinp on this
subject, we felt. we wouldn't have a strong case at triaI,..
Ivey said.
~ settlement calls for Cotton to be supplied with
kosher food, at Everglades Carr. Inst., but says nothing
about the" rights of other Jewish prisoners in Florida.
Officials at the Aleph Institute say they are optimistic that
kosher meals will soon be provided to all Jewish prisoners
in the state. They have obtained the support of some state.
legislators who have begun to pressure the FDOC on the
issue.
Cotton, who is serving a life sentence for murder,
began receiving his kosher meals in October 2003. •

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9---------------.. .

FLORIDA PRISON LEGAL

Perspectives

POST CONVICTION CORNER
.Once a motion for' postconviction relief is
filed with a trial court, the movant can typically count
on a lengthy wait before he or she will hear anything
back from the court. While some of the circuit courts
have postconviction divisions and move their cases
along at a reasonable speed, it is more often tbecase
that a postconviction motion will progress through
the court system at a snail's pace. Unfortunately, the
courts do not have speedy trial concerns on
postconviction cases. . As a result, such cases are
often put on the back burner by the courts while more
pressing matters are addressed in other cases.
It is not unusual for a postconviction motion
to languish for over a year before the trial court even
issues an order'. to show cause to the State.
Unfortunately,. due to the low priority often given to
.such motions by the .courts this is a commonplace
occurrence.. If a court takes too long to issue any
rulings on a postconviction motion, the movant does
have recourse.
Florida Rule of Judicial
Administration 2.050(f) provides that "[e]very judge
has a duty to rule upon and announce an order or
judgment on every matter submitted to that judge
.within a reasonable time." While the reasonable time
standard is somewhat vague, it does still place the
burden on the court. to deal "with any motions
.
"
presented.
If a trial judge fails to rule on a motion within
a reasonable time, mandamus. is the proper remedy.
Mason v. Circuit Court, 603 So.2d 94 (Fla. 5th DCA
1992) Matthews v. Circuit Court, 515 So.2d 1065
(Fla. 5th DCA 1987); See also Berens v. Cobb, 539
So.2d 24 (Fla. 2" DCA 1989) [mandamus was
proper remedy where judge refused to rule on a
motion]. A trial court has a legal duty to rule on a
postconviction moJion. In the absence of a timely
ruling on a postconviction motioo, the trial cou,rt can
be compelled, via a writ of mandamus from the
appellate court, ·to issue a ruling on the motion.
Matthews v. Circuit Court, 515 So.2d 1065 (Fla. 5th
DCA 1987)
As with any motion or petition, it is wise to
evaluate,whether the petition for a writ of mandamus

by Loren Rhoton, Esq.

should be filed. As a general rule of thumb, it is safe
to say that one should wait at least six months before
attempting to compel the trial court to rule on a
postconviction motion via a mandamus petition.
Thereafter, if the court has not dealt with the
postconviction motion, it may be time to pursue
mandamus to obtain a ruling on the motion.
. Prior to filing fOf a writ of mandamus, the
movant should first request action from the trial
court. A brief motion requesting.that the trial court
rule on the postconviction' motion should suffice. It
is wise. to note in such a motion how long the
postconviction motion has been pending. Such a
motionrriay, in and of itself, spur the trial court into
action. If the trial court still refuses to rule on the
postconviction motion, then it may be time to file for
mandamus with the appellate court.
If the postconviction motion is filed with a
circuit-court (as will most likely be the case), then the
Petition for Writ of Mandamus should be filed with
.' the applicable appellate court pursuant to Florida
Rule of Appellate Procedure 9.100. The nature of the
relief sought in the petition should be to compel· the
trial court to rule on the pending postconviction
motion. The following should be noted in the
petition:
1. The name of the court to which the writ of
mandamus should be issued;
2. The trial court case number;
3. The date that the postconviction motion
was filed with the trial court;
4. The fact that action on the postconviction
motion has already been requested; and,
5. The f~ct that the trial court has not issued
any ruling on the postconviction motion..
Often the mere act of filing a mandamus
petition with the district court will prompt the trial
court to take action on a postconviction. motion. If

10------

_

FLORIDA PRISON LEGAL

the trial court does not issue a ruling after the
mandamus petition is filed, it is likely that the district
court will direct the trial court to explain the lack of
. action on the case. If there is not a reasonable
explanation for the delay, the district court will likely
issue a writ of mandamus directing the lower court to
rule on the postconviction motion.
Mandamus can be a useful tool for obtaining
Nevertheless. I
a ruling from a trial court.
recommend that it be used sparingly. One must
always keep in mind that filing a petition for writ of
mandamu~ with the higher court may offend the trial
court. And, if the writ of mandamus is issued, the
case will be going right back before the judge who
has been ordered to take action. Therefore, I
recommend that anybody who is considering
pursuing mandamus relief weigh their need for a
prompt ruling against the possibility of offending the
trial court and, thus, making it more ·difficult to
convince the trial court to grant relief. Each case is
different.
Sometimes it is worth it to pursue
mandamus relief. Sometimes it is better to wait and
let the case work itself through the system. As was
noted, a mandamus petition should probably not be
filed until the postconviction motion has been
pending for at least six ~onths. Additionally, I.
would recommend that, in most cases, that
mandamus relief not be pursued until the case has
been pending for at least one year with no action
from the court. This is especially so for inmates with
lengthy sentences. Sometimes it is just better to let
the court take its time without being pressured to
rule. Nevertheless, mandamus is always an option to
be considered and can be helpful in some cases.
Loren Rhoton is a member in good standing with the Florida
Bar and a member of the Florida Bar Appel/ate Practice
Section. Mr. Rhoton practices almost exclusively in the
postconviction/appellate area of the law. both at the State and
Federal Level. He has assisted hundreds of incarcerated
persons with their cases and has numerous written appellate
~mwns.

•

.

Is it not possible that an individual may be right
and a government wrong? Are laws to be
enforced simply because they are made? Or
declared by any number of men to be good, if
they are not good?
Henry David Thoreau 1859

Perspect1ves

Arrest Everyone, Sort
Them Out Later
On Dec. 15, 2003, the U.S. Supreme Court held
that when police fmd drugs in a car and no one claims
them, it is "reasonable" to arrest everyone in the car
because everyone could be involved in a crime.
Now some criminal justice expenssay the high
court's ruling gives approval to police dragnets that could
snare innocent people with the guilty. Tracey Maclin, a
Boston University law professor who wrote a brief for the
National Association of Criminal Defense Lawyers in the
case, said, "People get into cars all the time and have no
idea what the driver or someone else may have put in the
vehicle. This will apply to people like the coed who's at a
party late at night and accepts a ride home from a group of
friends. If that car is stopped and police fmd drugs, 10 out
of 10 police officers will now arrest everyone to fmd out
whose they are."
Of cOurse there are those who differ. Charles
Hobson, a lawyer for the ultra-conservative Criminal
Justice Legal Foundation, said the court's decision strikes
the right balance between police authority and civil
liberties.
In the case that lead to the ruling, Maryland v.
Pringle, 124 S.Ct. 795(2003), Baltimore police found five
bags of cocaine and $768 in Donte Partlow's care in 1999.
None of the three' men in the car would admit owning the
drugs or money.
Hoping to get someone to admit ownership, the
police arrested everyone in the car. Following which,
whether they belonged to him or not, Joseph Pringle said
the drugs and money were his. He was tried and
convicted.
Pringle then challenged the admission of his
confession in court, claiming is should not have been used
against him because the police lacked probable cause to
arrest him because he wasn't the owner of the car and
wasn't driving. The Maryland Supreme Court agreed and
overturned his conviction. Now, however, the u.s.
Supreme Court has reversed the state court and handed
police another victory in the war on civil rights.

[Editor's Note: The above noted decision came only days
after the Supreme Court decided police have the authority
to forcibly enter citizen's homes after knocking and then
waiting only "IS to 20 seconds" before kicking the door
in. See: u.s. v. Banks in this issue's "Notable Cases."
The high court will also decide this term whether police
can be sued for acting on inaccurate search warrants and
whether "informational" roadblocks that lead to arrests are
constitutional.] •

11------

_

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ FLORIDA PRISON LEGAL

Perspectives - - . . : . . - - - - - - - - - - - - -

The following are summaries ofrecent state andfederal cases that may be useful 10 or have a significant imp~ct on Florida prisoners.
Readers should always read the full opinion as published in the Florida Law Weekly (F~a.LlWeeldy); ~/o"da Law Weekly Feder.al
(Fla.L. Weekly Federal); Southern Reporter 2d Se,..ies (S0.2d); Federal Supplement 2~ Series (~.Supp.2d). Federal Reporter 3d SerIes
(F.3d); or the ,Supreme Court Reporter (S.O.): since these summaries arefor general mformatlOn only.,
,

UNiTED STATE SUPREME COURT

US.v. Banks, 17 Fla.L.WeeklyFed. S7 (12/2/03)
The U.S. Supreme Court granted certiorari to
consider how to go about applying the standard of
reasonableness to the l~gth of time police with a warrant
must wait before entering a person's premises without
permission after~ocking and announcing their intent in a
felony case.
This case established that many reasons may exist
for ~tering a premises without permission when there is
no timely response to a knock and announcement. In US.
v. Ramirez, 523 U.S. 65 (1998). the Magistrate Judge
found that the customary warning would raise an
immediate fisk that a wanted felon would elude capture or
pose a threat to ,the officers. In this case against Lashawn
Lowell Banks (Banks) the Government claimed that a risk
of losing evidence arose IS to 20 seconds after knOcking
and announcing.
Several federal courts of appeals have held similar
wait times of IS to 20' seconds to be reasonable in drug
cases with similar facts including easily disposable
evidence, some other courts have found even shorter ones
to be reasonable enough. It was argued by Banks that IS
to 20 seconds was too short of time to get to the door after
the knock and announcement. However, the courts have
found that time will vary for the person within to get to the
door depending on the size of the establishment, perhaps
five seconds to open a .motel room door, or several
minutes to move through a townhouse. A pivotal question
in this case against Banks rested on the opportunity to
dispose of evidence, which for drUg cases such as this was
the strategic' placement of the illicit drugs near commodes
or kitchen sinkS so disposal could occur within seconds.
Originally, the intent to make an officer knock
and announce before fulfilling a warrant was to allow the
person inside to. open the door to prevent destruction of
the door or establishnlent. In a case with no reason to
suspect an immediate risk of frustration or' futility in
waiting at all, the reasonable wait time may well be longer
when police make a forced entry, since they ought to be
more certain the occupant has had time to answer the
door. Suffice it to say that the need to damage property in

the course of getting in is a good reason to require more
patience than it would be reasonable to expect if the door
were open. Police seeking a stolen piano may be able to
spend more time to make sure they really need the
battering ram.
In essence, the Supreme Court has shown that a
brightline standard cannot be applied because the analysis
must be different in a case by case review. ,Attention to
cocaine rocks and pianos .tells a lot about the chances of
their respective disposal and its bearing on .reasonable
time.' Instructions couched in term like "significant
amount of time" and "an even more substantial amount of
time," tell very little. [as]
U.S. COURT OF APPEALS
. Carter v. Galloway, 17 Fla.L.Weekly Fed. CI12 (I lib Cir.

12/15/03)
While serving a life sentence in Georgia's Hays
Prison (Hays), Plaintiff John Carter was assaulted and
stabbed by his cellmate, Termayne Barnes (Barnes).
Plaintiff brought suit pursuant to 42 U.S.C; section 1983
against Defendants James Galloway, Deputy Warden of
. Security at Hays, and Steve Upton, Special Management
Unit Manager of Hays, for their alleged deliberate
indifference to a substantial risk of serious harm to
Plaintiff in violation ofthe Eighth Amendment.
The U.S. District Court granted summary
judgment for both Defendants and the Plamtiff appealed.
. Upon review -of this case, the Court noted the
background events that· took place before Plaintiff was
assaulted and stabbed by Barnes. After the Plaintiff was
placed in a double bunk cell with Barnes, Barnes informed
Plaintiff of a plan to fake a hanging so Barnes would be
transferred to a medical prison. The Plaintiff had refused
to assist in this plan and Barnes made a statement that
Plaintiff would help "one way or another." Plaintiff
interpreted the statement as a verbal threat. Plaintiff had
a~so noted how Barnes would pace the cell like· "a caged
animal" threatening correctional officers and orderlies. '
Later, the Plaintiff notifies Galloway that Bames
was acting crazy and was planning a fake hanging and that '
\>

12 - - - - - - - - - - - - - - -

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

Plaintiff was told by Barnes he would help in the plan
"one way or another." After being returned to the cell
with Barnes, four days later Plaintiff seeks to be removed
from the cell by telling Upton of the plans and the
Comment that plaintiff would help "one way or another."
Upton told Plaintiff that no removal would be in order and
placed Plaintiff back in the same cell.
Six days after speaking with Upton, Plaintiff was
assaulted and stabbed in the stomach by Bames with a
"shank" (an inmate-made weapon).
'
It is axiomatic that a prison official's deliberate
indifference to a substantial risk of serious harm to an
inmate violates the Eighth Amendment and they do have a
.duty to protect prisoners from violence at the hands of
other prisoners. However, not every injury suffered by
one inmate at the hands of another translates into a
constitutional liability for prison officials responsible for
the victim's safety.
An Eighth Amendment violation will occur when
a substantial risk of serious harm, of which the official is
subjectively aware, exists and the official does not
respond reasonably to the risk. At no time did the Plaintiff
inform the Defendants that Bames' statements constituted
a threat nor did Plaintiff make a request. for protective
custody. The court did not view the record as supporting a
contention that Defendants drew the inference or should
have drawn the inference from Barnes' statement of "one
way or another" as a serious threat, leaving Plaintiff
exposed to any substantial risk ofserious hann.
The Defendants arguably should have placed
Plaintiff elsewhere but merely negligent failure to protect
an inmate. from attack does not justify liability. under
section 1983. Defendants only possessed an awareness of
Bames' propensity for· being problematic; the court ruled
to find the Defendants sufficiently culpable would unduly
reduce awareness to a more objective standard, rather than
the required subjective standard set by the Supreme Court.
.Such a generalized awareness of risk in these
circumstances does not satisfy the .subjective awareness
requirement.
The Court even viewed the evidence most
favorably toward the Plaintiff and a claim for deliberate
indifference still could not be established, therefore '1he
Court affinned the district court's order. [as].
DISTRICT COURT OF APPEAL

Estevezv. Crosby, 28 Fla.L.WeekIy 02534 (Fla.4th DCA
1115103)
George· Estevez filed a petition alleging
ineffective assistance appellate counsel based on his belief
that the trial court committed a fundamental error when it
instructed the jury that his use of force against the victim,
in the aggravated battery charge, was not justifiable if it

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

were to' fmd that the defendant was "attempting to
commit, committing or escaping after the commission of
aggravated battery." Estevez's sole defense at trail was
self-defense.
.
The above instruction is to be given when the
accused is charged with at least two offenses, the one for
which the accused claims self-defense as well asa
separate forcibly felony. To instruct. the jury that the
accused was not entitled to use force if he was attempting
to commit, committing, or escaping after committing the
only crime charged is circular~ confusing, and in essence
negateS the defense.
.The DCA granted Estevez's petition and directed
a belated appeal on whether the instruction given was
indeed a fundamental error.'· The Court reasoned the
fundamental nature of the error can only be determined
upon a review ofthe full record.
[Note: For those interested in. the procedural aspect ora
grant on a petition alleging ineffective assistance of
appellate counsel. the Court in this case ordered that the
opinion ill this case shall be filed with the lower tribunal
by the clerk of the district court and shall be treated by the
lower tribunal as the notice of belated appeal of the
judgment and sentence. Upon receipt, the clerk of the
lower court shall certify a copy of the DCA opinion to the
DCA in accordance with Fla. R. App. P. 9.040(g). The
appeal. will proceed under a new case number, which shall
be assigned upon receipt by the DCA of the certified
opinion. . All time requirements of the Florida Rules of
Appellate Procedures shall run from the date of the
opinion. oh]
Edwards v. State, 28 Fla.L.WeekIy D2S35 (Fla. 4th DCA
1115103)
The Fourth DCA has certified conflict with the
Second DCA as to whether a facially sufficient claim that
an attorney was ineffective for failing to call certain
witnesses in a motion for post conviction relief must
allege the witnesses were .available to testify.
The Fourth DCA has aligned itself with .the First,
Third, an~ Fifth districts that have adopted a fourcomponent test for determining 1he legal sufficiency of
an ineffective assistance of trial counsel claim that counsel
failed to call certain witnesses to testify On his behalf. The
components are: (1) defendant must identify the witness;
(2) state the substance of their testimony; (3) an
explanation as to how the omission of the testimony
prejudiced the outcome; and (4) that the witness was
available to testifY. The Second DCA requires only the
farst three components to state a legally sufficient claim.
See: Odom v. State, 770 So.2d 195 (Fia. 2d DCA 2000).
Cf. Catis v. State, 741 So.2d 1140 (Fla. 4th DCA 1998),
rev. denied, 735 So.2d 1284 (Fla. 1999); Nelson v.. State,

..

13 _.- - - - - - -

_

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

816 So.2.d 694 (Fla. 51b DCA 2002); Puig v. Stat~, 636
So.2d 121 (Fla. 3d DCA 1994); and Highsmith V. State,
617 So.2~ 825 (Fla. 1" DCA 1993).
,
(Note: This issue is problematic for several reasons. Rule
3.850, which sets forth the contents of a 3.850 motion,
requireS a movant to include a brief statement of the facts
(and other conditions) relied on in support of the motion.
Nothing under the rule requires a movant to allege the
identities of witnesses, the nature of their testimony, or
their availability to testify. As the Florida Supreme Court
recognized.in the case of Gaskin v. State, 737 So.2d 509
(Fla. 1999), it is during the evidentiary hearing a movant
must come forward with witnesses to substantiate the
allegations raised in the post. conviction motion. . In
.addition to this reasoning, it would be unfair to require a
defendant to allege judicially crafted components not
identified under a rule of procedure, which if not met will
amount to a denial of their claim for a requirement they
knew nothing about.
The most significant problem with this conflict
between the districts is that there is no conflict at all. In
Gaskin the Supreme Court made an express holding that it
is error for a trial court to require a movant to plead
.idel}tities' of witnesses (as well as their testimony and
availability to testify) in order to be entitled to a hearing.
,Yet mysteriously, no district seems to recognize the
existence ofthe Gaskin opinion. oh]

Perspectives - - - - . . : . . . - - - - - - - - - -

he was being sentenced as a habituid offender. On
appellate review the Second DCA rejec~ed O'Neal's
argumem.
.
The DCA acknowledged in past cases that they
have applied this rationale to reverse habitual offender
sentences where the trial court found that a defendant
qualified as a habitual offender but did not announce that
it was going to impose a habitual offender sentence.
However, the DCA ruled. that it is no longer applying such
rationale due to changes in the habitual felony offender
statute.
Under the version of the statute' applicable to
O'Neal's offenses, the trial court must make specific
written or oral findings if it is not going to impose a
habitual offender sentence and, accordingly, it is not
necessary for the trial court to specifically state that it is
imposing a habitual offender sentence. This version of the
statute applies to offenses committed after 1995.

Espindola v. State, 28 Fla.L.Weekly 02406 (Fla. 3d DCA

JO/22/03)
In the appeal from a final order declaring Ferman
Espindola, a. sexual predator in accordance with section
775.2J, Fla. Stat. (1999), the Florida Sexual Predator Act
("FSPAj.
Espindola plead guilty to an offense that under the
FSPA requlred that he be designated a "sexual predator."
. However, he argued that the statut~ is violative of
procedural due process and therefore unconstitutional.
As explained fully in the lengthy opinion, the
Second DCA held the FSPA unconstitutional because it
fails to provide minimal procedural due process. In sum,
the automatic registration and notification requirements of
FSPA without a hearing and the opportunity to be heard
violates due process. Because the FSPA specifically
provides that sexual predators present an extreme threat to
the public safety, a finding as to the threat must be
independently made, which implicates procedural due
process.
'[Note:
The Second DCA has reached a contrary
conclusion. See Thomas v. State, 805 So.2d 850 (Fla. 2d
11/19/03)
. Florida prisoner Tyrone O'Neal attempted to have
DCA 2001. oh] •
his felony habitual offender sentence vacated premised on
a claim
that
the trial court did not expressly announce that 14
_
__
_--:_
O'Neal v. State, 28 Fla.L.Weekly 02668 (Fla. 2d DCA

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

DNA Testing Extension,
Rule 3.853
by Oene Salser

Recently the Florida Supreme Court has suspended
until further order of the Court the- October 1, 2003
deadline for DNA testing found in Rule 3.853
(d)(I)(A), Fla. R. Crim. P.. See, Amendments To
Florida Rule of Criminal Procedure 3.853 (d)(1)(A);
Dean C. Wilson. et al.. v. State of Florida. 28 Fla. L.
Weekly S 737 (Fla. Sept. 30, 2003). Further, the Court
recognized operation of the same deadline in section
925.11 (l)(b) 1., Fla. Stat. (2002) may result in the
non-preservation of physical evidence for DNA testing
under section 925.1 I (4)(b). Because such a result
would render these proceedings moot and in effect
preclude the Court from the "complete exercise", 1
there of, the deadline in section 925.11 (I)(b) 1. was
held in abeyance while the' Court considers its
jurisdiction. The Court expressed no opinion on the
merits of the petition but ordered the evidence
described in section 925.11(4)(a), "shall be maintained
for at least the period of time" controlled by the
abeyance.
The divided Court ultimately turned to the issue of
jurisdiction with the majority providing a wellreasoned logic for its actions. Id. at S728.
In the November 15, 2003, issue of the Florida Bar
News. Gary Blankenship, Senior Editor,acknowledged
the concerns of many for DNA testing.
On October 21, 2003, a joint meeting between the
Judiciary and Criminal Justice committees, Senators
got answers and asked questions on extending the
deadline.
The rule and statute provided procedures giving
inmates until October I, 2003. to file to have DNA
Evidence from' their cases tested. In some instances the
conviction pre-dated the availability of DNA testing,
and in others older, less sophisticated DNA testing was
used, leading to incollclusive results that more modem
testing might resolve.
,
Two law school programs screening inmate requests
said they didn't have enough time. and hundreds of
cases still needed to be reviewed..The Supreme Court
set oral arguments for Nov. 7, after staying the
expiration of its rule.
Pioneered by Sen. Alex Villalobos, R-Miami. the
committee heard from Catherine Arcabascio and
Jennifer Greenberg who respectively run programs
screening inmate requests for DNA testing at the Nova
South-eastem and Florida State University Law
schools. and Second Circuit State Attorney. Willie
Meggs, as well as others.

PerspectIves - - - - - - - - - - - - - - Arcabascio and Greenberg said two years hadn't
been enough time to review hundreds of requests from
inmates with Greenberg noting the FSU effort began
only in April with 400 cases. '
Arcabascio could n9t give any specific date
concerning the extension, said it can take months or
years merely to collect the documents from cases,
some decades old, to detennine whether DNA testing
is appropriate, and, if so, whether the biological
evidence still exists.
"We owe it to everyone," said Ariabascio, a fonner
prosecutor. "I do it because 1 believe it is the right
thing to do, it is the fair thing to do, it is just the thing
to do."
She and Greenberg estimated about 10 percellt of
the reviewed cases will qualify for DNA testing.
Greenberg stressed the importance-of DNA 'review
because new testing techniques are more sophisticated,
and some earlier test have been discounted. She noted
that several people were convicted in Florida severa)
years ago based on microscopic hair comparisons. a
technology that now has been discredited.
Greenberg further stated various studies estimate
between 1 and 10 percent of incarcerated inmates are
actually innocent. The 10 percent figure comes from a
U.S, Department of Justice study. Relying on these
numbers and given the Florida prison population of
more than 79,000, that means that almost 8.000 men
could be innocent.
Sen. Rod Smith. D-Gainsville. and Villalobos
discussed the need for an extension relying on section
2. (rule 3.850) that allows testing after the deadline if
new evidence is found.
'
Michelle Foutaine, a third year FSU law student
who reviews the cases. said under existing rulings. ,"the
Court is going to interpret those [section2] pbrases
very narrowly and usually in favor of the state. because
of finality:'
'Mr. Meggs. president of the Florida P~secuting
Attorney's Association disagreed that an extension was
necessary stating section 2 allows handling of new
evidence or improved testing.
"State Attorneys of Florida have absolutely zero
interest in seeing an innocent person staying in prison",
he said. "State Attorneys will order DNA tests if
someone comes to them with a good reason. That's
what we do. That's the business we're in."

Other Topics Raised!
Sen. Evelyn Lynn, R-Onnond Beach, expressed
concern that the law did not apply to those who had
entered pleas, only those 'who had been found guilty.
See, Smith v: State, 849 So. 2d 485 (Fla 2nd DCA. July
16, 2003). Arcabascio said that most other states with

____________...,....._.._---15----------------

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

similar DNA laws allow those. who took plea bargains
to seek the testing. 2
Lynn also said she wanted to see more infonnation
from other states, including knowing how many had
similar laws, how many set deadlines, and the rationale
for setting specific deadlines or not having a set time.
Fountaine said 16 of 22 states with DNA laws did not
have a deadline.
John Booth, FDLE agent said the FDLE gets
request for about 8,000 DNA tests per year. About SO
requests are pending on post-conviction cases, but was
uncertain how many such requests the department gets
annually and how many came about because of the
DNA law.
[Source] The Florida Bar News, November 15,2003.
Gary Blankenship, Senior Editor.
I)

The Com exercised its All Writs Jurisdiction to initiate
jurisdiction consideration.
2) For those who entered pleas th is should be of particular interest
given the draconian sentencing schemes that have persuaded many
to plea guilty for a lesser sentence. rather than face the blunt of
LegislatureS statutory maximums. You should contact your
legislaiure's on this poinL Stating why you should be entiUed to
DNA testing. 0

Prison Perspectives:
Busy Courts

n...u. 0"" flHt ,.lori.4I COtiIJlta fAa .ac:nt '''rlln:Q(~n ;1t(:~4t, itt fAil nillubrt,
u.ntmd~Nm"nJulyI. J001tl11tlJun"

tlll",MJU

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COUllI)'

36.2%
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bUD)

Polk=UD
Volall.

207

1
LtI._19)

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

The Importance of Filing
Deadlines
According to popular television and conservative
critics, prisoners have. an unlimited ability to tie up the
judicial system with frivolous and unproductive claims.
Reality, however, reveals a much different picture. The
ability of prisoners to attack a wrongfully obtained
conviction or sentence is limited. Factors such as the type
of argument that can be ra~sedand the type. of evidence
that can be used limits a prisoner's ability to obiain relief.
Most important, however, is that strict deadlines or
periods of limitation serve to limit the opportunities of
prisoners to obtain relief in a system that is hostile to the
claims of individuals who have been convicted.
Generally, an individual 'convicted in state court.
has only two' options to attack his or her conviction, a
direct appeal and a motion of post conviction relief filed
pursuant to Rule 3.850, Florida Rules of Criminal
Procedure. A notice of appeal must be filed within 30
days of the judgment of conviction, thereby signifying the
intent of the individual to file a direct appeal. Following
the end of the direct ·appeal process, the individual will
have two years within which to file a motion for post
conviction relief. However, if the individual raises a
federal constitutional violation, he or she must be mindful
,of the ono-year period of limitations for filing their federal
claims in federal court. Thus~ they must file their state
post conviction motion within one-year, leaving sufficient
cushion to file in the federal court if their efforts are
unsuccessful in· state court. In other words, if the
individual anticipates going to ' federal court if
.' unsuccessful in state court, he or she must be ready to file
their pleadings (both state and federal) within ono-year of
their judgment of conviction becoming final. The state
post conviction proceeding will toll or sUSpend the federal
period of limitation. The clock will resume (not start
over~ once the state proceedings are complete.
Given the few avenues available to correct an
erroneous conviction, it is vital that individuals file their
legal pleadings in a timely manner. It is rare that any
court will even listen to a legal proceeding following
conviction if it is filed in an untimely manner. The courts
have little tolerance for individuals who cannot follow the
filing deadlines.
While mdividuals have viable
arguments, such arguments will often not even be heard if
an action is not timely filed. •

, 42.6%
17%
22.9%
34%

The constitution was not made. to fit us like it
strait jacket. In its elasticity lies its chief
greatness.
Woodrow Wilson 1904

~~-------------16---------

~

FLORIDA PRISON LEGAL

Perspecbves

PRIDE Prison Industries
Comes Under Scrutiny

legal requirements for purchasing preferences, some
state agencies avoid buying from PRIDE because of
dissatisfaction with delivery time and quality and a
belief that they can get a better deal elsewhere.

An audit conducted by the' Office of Program
Policy Analysis and Government Accountability, a
Legislative watchdog, revealed that Florida's prisonindustries system let an affiliate run up nearly $10
million in debt with no documented repayment
schedule. PRIDE - Prison Rehabilitative Industries
and Diversified Enterprises - loaned the money to
start up Industries Training Corporation, then hired
the company to run prison work programs without
seeking other bids. Given that all the board members
of Industries Training Corp. are either current of
former board members of PRIDE, auditors.said, its
difficult to make sure the money PRIDE makes is
being properly circulated back into prisoner training
and other PRIDE purposes.
PRIDE was created by the Legislature in 1981 to
provide supplies and services to state agencies and at
the same time provide job skills for inmates in the
hope that recidivism would go down. Last fiscal year
PRIDE had 1,995 work positions at 21 prisons and
rang up $61 million in revenue on everything from
printing and data entry to raising dairy calves and
making furniture. Companies whose business has
been affected by PRIDE often have complained of
unfair competition.
The report found not only that some state agencies
try to avoid buying from PRIDE but also that its
affiliate Industries Training Corp. created further
spin-offs in part to erase the stigma of using "forced
labor." The audit was done as part of OPPAGA's
routine review of state programs, and the report
called for more openness in PRIDE's activities and
structure. The auditors said the corporate structure
"produces benefits" for PRIDE but also created
accountability problems.
"PRIDE paid ITC $6 million in 2002 and $9
million in 2001 for administrative services," the
report said. "These services have not been placed out
for bid on a regular basis to determine if another
contractor could provide PRIDE with the same
services at a lower cost.
It was in 1999, the audit said, that PRIDE began
creating more spin-offs. Industries Training Corp.
created six entities, including some for-profit
operations in citrus, temporary staffing, and
manufacturing of extreme weather apparel using
inmate labor in Utah. Meanwhile the percentage of
Flo.rida inmates getting job training through PRIDE
has fallen by more than half since 1985.'
PRIDE's sales also have been steadily declining
over the years. The auditors found that despite legal

The report praised PRIDE for helping reduce
inmate idleness, increasing restitution to victims,
providing incentives for good behavior, and
helping inmates learn job skills. PRIDE reported
a recidivism rate of 18.1 percent among its
trainees in fiscal 2000 while tlie Department of
Corrections had an overall recidivism rate of
83.8 percent.

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

Source: Office of Program Policy Ana1y3;3 and Govenmuml
Accountability

II

---17 -..;....-----------

_

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

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

;?(:f~o;
...

'.f,"~

:" .:~rJ~~J1~~;r',
The information contained in Jhis section is compiledfrom published Session Laws and m~y be useful t~ or imp,act Florida prisoners.
This section is an information source designed to provide accurate information concernmg the late~t m ~/o"da .Iaw.. Occ~ional/y.
Legislative Watch will publish other items of interest related to Florida's legislature such os .upcommg bll/~. leglslallve hlSt~ry and
bios on current legislalors. New law and pending bills will be clearly identified to QVo~d confusIon as to what IS law and what IS not.

INTRODUCTION OF A BILL
IN BRIEF
Every law in Florida was once a bill. This short
article covers a typical way in which Florida law is
enacted by explaining what constitutes a bill and how the
bill may eventually become law.
A "bill" is a term used for a proposition to enact
law reduced to writing. Only members of the legislature
may introduce a bill. It is a 1egislative proposal offered
for debate and may originate in either chamber of the
Legislature (the Senate, or the House of Representatives),
and after being passed in one chamber, may be amended
in the other.
.
The Preamble of every measure introduced by a
member of the legislature for enactment into law is: "A
Bill" to be Entitled an Act to ...". Bills that originate in the
House of Representatives are designated H.B., those in the
Senue as S.B., followed by a number assigned in the
order they are introduced.
'
After numbering, the bill is 'read by its title only
and publicly referred by the presiding officer to a
committee, which will report recommendations that a bill
"Do Pass" or "Do Not Pass." Many bills die in
committees and do not pass.
A bill is "introduced" in only one chamber of the
Legislature, though a duplicate may be offered in the
other.
When a bill is passed by one chamber, it is
transmitted, not introduced to the other for action thereon.
When the bill has received support of a majority
of members present after a second and third reading, and
fmal passage has been entered upon Journals of each
chamber, the bill has passed. It is then a legislative "Act"
by virtue of being passed in identical language in both
chambers. ,The"Act" then becomes law if signed by the
Governor, or should the Governor veto the bill, a twothirds majority vote in both chambers ,to override veto and
enact the law, or if allowed to become law without. the
GovernorS signature.
The law is then filed with the Secretary of State,
and becomes effective either 60 days after the date of

Final Adjournment of the legislature or upon a special day
fixed in the particular law.
However. a bill cannot be introduced in or passed
by either chamber of the Legislature after the expiration of
its fmal yearly session, nor can a bill be reconsidered or
amended after the lapse of this period, since no legislative
functions may be perfonned after the expiration of the
session. To allow reconsideration or amendment after
thi~ period is improper.
A regular session of the Legislature may last a
maximum of 60 calendar days. The Governor may
summon the Legislature into special or extraordinary
session. These sessions last 20 calendar days, except
when called for the purpose of legislative
reapportionment.
In convening a special session of the Legislature,
other than for reapportionment, the Governor states the
reason for the call and the Legislature is bound
constitutionally not to consider other business except by a
two-thirds vote of each chamber.
The exact rules governing the. Legislative
chambers of House and Senate are lengthy, too detailed to
be considered here. But the basics are covered and
hopefully you, the reader. have gained some knowledge
on the subject of Legislative bills to law.•

JEBPROPQSES I'RlS~N, ",:'.
EXPANSION' ':.
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During J,anuary2004; F)oti~~~,Goy~JiJP~eb IB'ush;sent,
his state budget proposal to the ;Legis.la.turefOrthis
coming fiscal year. Bush proposed incre4Sing,the Florida
Department of Correction'sbudget9.~~ver.lastyear. '
which wo~ld give the dep~entS2.~,16~impIHor~004.'
,OS if agreed on by the Legisl~tul'e. 'llusl&·!.lao"~~lced
$99.6 million. of hisp,roposed i~~r,e#~'C'f9r:~ew,:"1Prisoll '
constructi.on (i~~dition ,to ·tbe.'.::ptraq~'Q.onJit~~tipn'
approved ill 2003) and ,$257.6 millipri:to restore drug
treatment and education programs that were slashed last
year.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ 18

_

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

Perspectives - - - - - - - - - - - - - -__

David w~·com~ Attoraey at Law
.Fornu:r state prosec:utcr wid1 mOre Iban 15 years of crimlMllaw experience
"AV" I'lIIed by MartiDdale-HubbIJ Bar Rqistcr ofPreemillalt LawyerI.
Y"", WJb lIJ TII1/#j..-,.~ ptIN1Im III l1li tlNtIJ fl/ptIIkOflridItJ" HIJIf
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4 FcdcmI HlIbcas Ccupaa
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.Slate

.PIca 8IJpia Rlsbts
.
.SCDtaICIng 4SCoresboet Errors
o.~ 7Wpp, KllIchuky, Hegp c:ases
.JaII lima CredIt Issues
~aiatimo ~l1Ittlssua

.Habltullizatlon Issues

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bocchcd ancmpt co &ee hit ben friend from aprison mntpon
vaa in doWlicown West Palm Bach, durinJ. which a guard Wit
killed by Van Porek" accomplice, Prank IIdes, Van Poya has
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penned two !lOvclJ. Th, Thiid PiIJ.J, ofWisdom, .nd Q";'t",.
lie CUtteIIdy mides on Virginia'. death row where he Wit
auderncI in 1999, after F10rida Saie PNon Buardt mllJ'dcrcd hit co-defaIdanr,
frank VaIdeI, in hit death row ccIL

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adcIIUI aboYe.

------------.....-::i~--19_--

_

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

PerspectIVes - - - - - - - - - - - - - - -

/

Lax Security Contributed To
Prison Guard's Death
by Bob Posey
PUNTA GORDA, Fla.- Negligence by top prison
officials at Charlotte Correctiona~ Institution contributed
to the death of il female. prison guard during a botched
escape attempt, according to a uniquely candid internal
investigation report released January 20, 2004. Among the
numerous security policies violated by' Charlotte CI
offici~ls, according to the report: allowing a single female
guard to monitor five prisoners inside a dormitory under
construction at night, failing to make required security
cheC?ks. and ignoring rules about when and where certain
tools are allowed to be used and stored.
The report, from the Department of Corrections' Office
of the inspector General, provides a detailed synopsis of
extremely sloppy security policies being practiced at the
prison on the night in June 2003 when rookie prison
guard Darla Lathrem was killed. (See: FPLP, Vol. 9, Iss.
4, "Female Prison Guard Killed.") Three prisoners on a
five-man work crew allegedly attacked and killed the 38year-old guard, who became the first female guard killed
inside a Florida prison. Her body was later discovered in a
locked closet inside the dormitory that was being'
renovated after three of, the five prisoners she was
supervising were caught trying to scale the perimeter
fences at the prison. She apparently had. been bludgeoned
to death witli a sledgehammer.
Officials had decided in a meeting prior to construction
beginning on the dormitory that at least two guards would
be needed to supervise the prisoner work ~etail, according
to Daryl McCasland, the FDOC inspector who authored
the department's internal investigation review. However,
"no one. from Charlotte's administration appeared to
monitor the construction project beyond the normal duty
hours to ensure that manpower was being utilized
properly," McCasland wrote in the 12-page report. Warren
Cornell, the warden at that time, said he was never
approached with security issues regarding the
construction.
Lt. Rick Orzechowski, one of the officers in charge on
the night of Lathrem's murder, claims he was never told
he should haye more than one officer inside the dormitory.
He, along with Capt. Jody Davis, the two supervisors of
the night shift on June II, were both demoted to sergeant
before the internal report was released. Neither works at
Charlotte CI anymore, a local source reports.
Prisoners Dwight T. Eaglin, Michael Jones, and
Stephen Smith, three of the five men 011 the work crew
that night, are each facing two counts of murder for
Lathrem's death and the killing of one of the other
prisoners on the work squad, Charles Fuston, whose
family claims he tried to help Lathrem. The other prisoner,

James Beaston, has not had any charges filed against him.
None of the five prisoners were restrained that night
although all had high security ratings,
another policy
.violation, according to the internal report. The main
control room also failed' to make regular checks with
Lathrem, a mandatory policy, and Lathrem was not
wearing a "body alarm," an electronic device that sends
out an alert of a fallen officer, another violation of
department policy.
Warren Cornell, the warden on the night Lathrem was
killed has resigned and was replaced by Chester Lambdin.
The internal report also spurred a string of other
administrative changes that included the further demotion
of the prison's former assistant warden, William Boyett,
who had been transferred and demoted to colonel
following Lathrem's death. is now a sergeant at Brevard
Correctional Institution. A department spokesman,
Sterling Ivey, says Boyett's initial demotion to colonel
was not tied to Lathrem's murder, but the demotion to
sergeant is a result of the internal investigation. _

AZ - The state's female prison population is rapidly
growing. It has increased Dearly 58% in the past five
years and has more than tripled in the past I5 years. Yet
800/0 of the women are imprisoned for non-violent crimes.
compared with 57% ofmen.

.

AZ - Private prison comPanies are pushing the
Legislature to consider using their services to solve the
state's overcrowded prison system. AZ is short 4.000
beds and needs an additional 16.000 beds right away. The
Legislature wiD be considering' the issue during a special
session.
AZ - On Oct. 1. 2003, Gov. Napolitano announced that
that a 3,200 bed privateiy-operated women's prison would
not be built after a coalition of Arizona organizations,
including the AZ American Friends Service Committee
and the AZ Advocacy Network, rallied to oppose the
construction. The coalition protested at a public hearing
about the prison. getting statewide media coverage and
generating huf1l:lreds of .phone calls against the
construction to the governor's office. Arizona's prison
population has ballooned from just over 3,000 in 1978 to
over 30,000 today. The majority of AZ prisoners are
either non-violent offenders, first time offenders. or both.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 20

_

- - - - - - - - - - - - . . , . . - - FLoRIDA PRISON LEGAL

GA - An Atlanta grand jury indicted Michael Little, 35,
Gary Barnes, 36, Ricky Davis, 41, and his wife, Angie
Davis, 29, on charges of attempting to defraud the U.S;
government of $2.4 million by filing false income tax
returns. The indictments were handed down Aug. 14,
2003. All of the men are prisoners at the Federal
Correctional Facility in Jesup Georgia.
FL - Starke - On Oct. 30, 2003, the stretch of State Road16 between Starke, Fla., and State Road-121 in Union
County was formally designated' with a sign as
"Correctional Officers Memorial Highway." The state
Legislature had authorized the naming of the road, which
passes Florida State Prison and Union Correctional
FDOC officials say the
Institution, during 2003.
dedication will serve as a reminder to Floridians of the
approximately 30 prison guards who have died in the line
ofduty.
FL - Raiford, - Bad turkey may be to blame for making
168 prisoners sick at Union Correctional Institution on
Christmas day, claims health and prison officials. A
spokesman for the Department of Corrections, Sterling
Ivey, said that the prisoners were treated for diarrhea and
other symptoms common to food poisoning ~d that all
had recovered. Food at the prison is prepared by Aramark
Corporation, a private contractor that provides food
services to the majority of Florida prisoners.

FL - A state review following the death of a Miami
youthful offender found dozens of state Juvenile Justice
Department employees with arrests and convictions. Two
supervisors at the juvenile lockup where Omar Paisley, 17,
died in June, 2003, had arrest records. Statewide, 48
employees had convictions or other resolutions of criminal
charges.
FL
a Florida Department of Cortections
prison sergeant
arrested and charged with aggravated
battery and possession of less than 20 grams of marijuana
December 28,2003. Marion County detectives arrested .
Donald Kle~er, 33, of ocala. saying he shot Brain
Case, 38, three times, once mthe arm and twice in his
back. at Kleinmeyer's elt-girlftiend's house. Reportedly
Case, the woman's new boyfriend, unexpectedlY went to
the woman's house and after a search found Kleinmeyer
hiding in a closet. When Case punched Kleinmeyer in the
face. Kleinmeyer pulled a gun and shot Case. Kleinmeyer
had been a prison guard since June 1995 and his entire
career had been spent at Marion Correctional Institution.
[Source: Ocala Star Banner, 1/1/04]
1-

was

Perspectlves - - - - - - - - - - - - - -

FL - On Sept. 26, 2003, a guard at the private prison
Moore Haven Correctional Facility was arrested and
charged with two counts of sexua; battery on a child and
one count of lewd and lascivious' exhibition of a child.
The arrested guard, Jolm Brock. 42, is also the fenner
police chief of Zolfo Springs, Florida. The Moore Haven
Facility is operated by Wackenhut Corrections
Corporation

MT - Prerelease centers, intensive SUpervISIon, and
treatment programs are helping slow the prison population
growth. The Department of· Corrections reported the
prison population is growing at the rate of 2.6%,
compared with 8% in 2002 and 5.7% in 2001. But
officials also warn that crimes related to
methamphetamine use could reverse declines.
OK - A state law that required violent offenders to serve
longer sentences may be contributing to an increase in the
number of inmate attacks on prison guards. AIthougb that
may be part of the problem. the growth in prison
population and understaffing also play a role, according to
a state report release in November.
PA - During Aug. 2003, Tammy Swittenberg-Edwards.
31, was arrested for child endangerment after locking her
3-year-old· daughter in the· trunk of her car while she
visited her husband at a state prison in Huntingdon. The
child was locked in the ~nkafter being denied ~
to visit because she was not on the prisoner's visiting list.
The mother was arrested after prison guards beard crying
and yelling from the trunk of the car and found the child
locked inside.
SC - Effective Aug. 13, 2003, the South Carolina
Department of Corrections cut visiting hoUrs at all 29 state
prisons by half, and to only four hours on Saturday and
Sunday. Prison officials claim the cut was necessary due
to budget shortages.
VA .... On Aug. 28, 2003, Federal Judge Robert Payne had
a warrant issued for disb8rred attorney Thomas Smolka,
56, after he failed to show up for a sentencing hearing
after pleading guilty to wire and mail fraud charges for
bilking prisoner clients out of money for legal work he
never performed. Payne had already revoked Smolka's
bail in. June when he refused to meel: with probation
officers to set his restitution payments. Prosecutors claim
Smolka had not been cooperative in identifying his
victims. Smolka was declared a fugitive. _

____________~_--. . .,.. ---21----------------

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

I

Perspectives - - - - - - - - -

I

RHOTON & HAYMAN, P.A.

J

LOREN D. RHOTON
Attorney At Law

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DIRECT APPEALS
STATE POST CONVICTION
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'OF HABEAS CORPUS
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FLORIDA PRISON LEGAL Perspectives

----

Florida Prisoners' Legal Aid Organization Inc.

BECOME A MEMBER
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A MUST HAVE LEGAL GUIDE FOR ALL FLORIDA PRISONERS
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ADVER11SING Nonce

PRISON LEGAL NEWS

Due 10 a c:onccm fer our mcrnbas. lhc FPU' scaff
tries 10 CIISIUC tImt lIlIvcrtism in these pages ~
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camJOt meet evay lldvatiscr. however.
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that the malliag Ust can be updated:

l!ltvc:niscrs for fta1hc:t ioftmDaIion 011 1hc:ir
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decision 10 hin: an lIUIJmCY or olhcr pmfc:ssional
sc:ntiec .provlda'. You mould nm:r send 1c:pJ. or
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For those wisbioa 10 advertise in FP£P. plc:asc write
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Email PLN at
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VOLUME 10. ISSUE I

JANIFEB 2004

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