'FLORIDA PRISON LEGAL'

ers ectives
VOLUME 11

ISSUE 1

ISSN# 1091-8094

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by Bob Posey
TALLAHASSEE -:On Dec. 21, 2004, Second Judicial
Circuit Court Judge Nikki Ann Clark ruled that the Florida
Department of Corrections can charge Florida's 80,000
state prisoners up to $6 a month as an inmate bank
account processing fee.
Judge Clark's ruling came in a suit that had been
filed by Kindred Spirits Charitable Trust, a nonprofit
organization that helps prisoners and their families, and
two state prisoners, Jesus Scull and James O'Callaghan,
who receive money assistance from Kindred Spirits. The
lawsuit had been filed in July '04, shortly after the
legislature passed a new law authorizing the DOC to
collect a bank fee from prisoners who have money in the
inmate bank system run by the Department. (See: FPLP,
Vol. ]0, Iss. 4, pg. ]6). The lawsuit claimed that the law
authorizing the fee was unconstitutional because it was
lumped together in a bill with unrelated subjects, a
violation of Florida's constitutional requirement that bills
contain provisions on only one subject.
The final judgment came in the case with Judge
Clark granting summary judgment for the DOC. Judge
Clark ruled that the fee provision law, section
944.516(1)(h), F]orida Statutes, created by Chapter ~004-

I

ON
THE
INSIDE

AN/FEB 2005

248, s: ,. 21, Lav.s of Florida, did not violate the state's
single~!iubject requirement because all of the sections in
Chapter 2004-248 deal with authority to operate the
Florida prison system in some manner. Judge Clark held
that Section 2], containing the fee provision, "is logically
connected to the subject of the act because it deals with
the authority to operate the Florida prison system, even
though some sections deal with private prisons."
.
Judge Clark noted in the order granting the DOC
judgment that under a new standard of review set forth in
Franklin v. State, 29 Fla.L.Weekly S 538 (Fla. 2004),
where there is a claim of single subject violation the
court's review must be ""highly deferential" to the
constitutionality of the legislative act. Any doubt, under
that standard, must be resolved in favor of upholding the
constitutionality of the act, wrote Judge Clark, who also
rejected the plaintiff's claim that the title of the act was·
misleading.
Interestingly, before ruling on the single subject
violation claim, Judge Clark also addressed the DOC's
claim that neither Kindred Spirits nor the two prisoners
had ~nding to challenge the statute.
The judge
determined that indeed, Kindred Spirits did not have
standing to pursue the case because any money it sends to
prisoners no longer belongs to Kindred Spirits. The funds
belong to the prisoners once given and that is whose funds
the DOC is authorized to deduct the fees from. The two
prisoners, therefore, did have standing to challenge the
law, but not Kindred Spirits.

From the Publisher
Post Conviction Comer
In the News
Notable Cas.es
Walker v. Crosby
Partners i~ Prison

3
10
14

16
25
29

Florida Prison Legal Perspectives

FLORIDA PRISON LEGAL PERSPECTIVES
P.O. BOX 660-387
CHULUOTA, FLORIDA 32766
A Publication of:
FLORJDA PRISONERS' LEGAL AID ORGANIZATION, INC.
A 501 (c)(3) Non-prolit Organization
E-mail: fplp@aQI.com

FPLAO DIRECTORS
Teresa Burns Posey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton, Esq.
Oscar A. Hanson, CLA
Linda E. Hanson
Publisher
Editor
Associate Editor
Research

FPLPSTAFF
Teresa Burns Posey
Bob Posey
Oscar A. Hanson
Sherri Johnson

ADVISORY BOARD
William Van Poyck
Anthony Stuart
Linda Gottlieb

Susanne Manning
Mark Osterback
David Reutter

Florida Prisoners' Legal Aid Organization, Inc., P.O. Box 660387, Chuluota, Florida 32766, publishes FLORIDA PRISON
LEGAL PERSPECTIVES (FPLP) up to six times a year. FPLP is
a non-profit publication focusing on the Florida prison and
criminal justice systems. FPLP provides a vehicle for news,'
infonnation; and resources affecting prisoners, their families,
friends, loved ones, and the general public of Florida. Reduction
of crime and recidivism. maintenance of family ties, civil rights,
improving conditions of confinement, advocating skilled'court
access for prisoners, and promoting accountability of prison
officials arc issues FPLP is designed to address. FPLP's nonattorney volunteer staff cannot respond to requests for legal
advice. Due to the volume of mail that is received and staff
limitations, all correspondence cannot be responded to, but all
mail will receive individual attention. Pennission is granted to
reprint material appearing in FPLP that does not indicate it is
copyrighted provided that FPLP and any indicated author arc
identified in the reprint material and a copy of the publication in
which the material is published is provided to the FPLP
'publisher. This publication is not meant to be a substitute for
legBJ or other professional advice. The material in FPLP should
not be relied upon as authoritative and may not contain sufficient
information to deal with a legal problem. FPLP is automatically
sent to all members of FPLAO, Inc., as a membership benefit
Membership dues for FPLAO, Inc., operate yearly and arc S9 for
prisoners, SI5 for family members and other private individuals"
S30 for attorneys, and S60 for agencies, libraries, and institutions.
Family members or loved ones of prisoners who arc unable to
afford the basic membership dues may receive membership for
any size donation they can afford. Postage stamp donations arc
welcome. Prisoners on death row or CM who cannot afford the
membership dues may request a waiver of the dues, which we
will grant as resources penni\.

2

Kindred Spirits plans to appeal the ruling, said
Randall Berg, Jr., executive director of the Miami-based
Florida Justice Institute, which represented the case.
However, the Institute has previously cautioned Florida
prisoners not to be overly optimistic that this suit can or
will succeed in stopping the fee deductions. Prisoners
have been advised that the best bet io eliminate the fees is
for them to have their families and friends contact state
legislators demanding that the fee law be repealed. (See:
FPLP, Vol. 10, Iss. 4, pg. 16)
The DOC had initially proposed a rule to
implement the .fee deductions that would have allowed $4
a month to be deducted from prisoners' accounts'and
allow a lien to be placed on accounts for that amount for
prisoners who have no money. On December 10, 2004,
the Department changed that rule proposal to allow a $1
deduction for every week that a prisoner has money in his
or her inmate account, and· aJlowa$0.50 deduction for
each deposit to or special withdrawal from the account, up
to a max of $6 per month. No lien would be placed on
indigent prisoners~ accounts under the change made to the
rule proposal.
Peggy Taylor, a Deland retiree whose husband is
in prison, said she lives on Social Security and can only
send a few dollars at a time to her husband's DOC-run
bank account. "You have to scrape to pay your bills as it
is, and when I send him money, they [DOC] will take
some of it,"she told The Daytona Beach News.Journal.
After the ruling was handed down denying the
legal challenge to the processing fee law on Dec'. 21,.
Sterling Ivey, the DOC's spokesman, said the Department
will start collecting the fees from prisoners' accounts
within 4 to 6 weeks.
Kindred Spirits Charitable Trust, Jesus Scull and
James 0 'Callagh'tm v. James V. Crosby, Case No. 2004CA-1799 (Fla. 2d. Jud. Cir. Ct.).
[Note: Florida prisoners and their families are rightly
upset about this new "processing fee." This is only one
more way that the DOC is gouging money out of prisoners
and their families, on top of the exorbitant phone rates,
steadily increasing canteen prices, co-payments for
medical services, kickback commissions on Western
Union deposits to inmate bank accounts~ forcing prisoners
to pay an exorbitant price for legal photocopies by passage
of mail rules that prevent such copies from being made by
a family members and mailed back in, forcing prisoners to
pay high canteen prices for food to supplement the low
quality and small portions provided by private food
contractor Aramark Corporation, forcing' prisoners to
purchase shoes and underwear at DOC-inflated prices
(DOC is severely restricting the clothing and shoes
provided by the state) and the list goes on. The money for
all that comes from the 'families; Florida prisoners are
prohibited from any activity to earn money while
incarcerated.

Florida Prison Legal Penpectives
Being upset, however, is not going to do anything
to stop the processing fees or any of the other ways that
DOC is gouging money out of families to support a
corrupt system to keep their loved ones incarcerated.
Action can kill the fees. Florida Prisoqers' Legal
Aid Organization joins with the Florida Justice Institute in
calling on all family members and friends of Florida
prisoners to contact your local state legislators, right now,
the 2005 legislative session starts in March, and demand
that the processing fee law, section 944.516(1)(h), Florida
Statutes, be repealed. ALL prisoners are called on to get
your family members and friends to make that protest to
their legislators, right now.
If we do. not. stop this gouging by DOC, we can
only expect more of the same in the future. Once started
the "processing fee" will steadily be increased like the
canteen prices have been. New ways to gouge our
families out of money will be developed. IF every
prisoner has just one person contact their legislator, that
would be 80,000 calls to repeal the fee law, enough to
probably get it done. Let's do it people.] •

Dear Members and Readers:
Greetings.
As you may already know,
membership dues and advertisement income only cover a
portion of the eXpenses associated with publishing Florida
Prison Legal Perspectives. We depend on donations from
you, our members and readers, to make up the difference.
occasionally we receive a small grant from a foundation,
usually to fund a project, but given the unpopularity of
prisoner advocacy, grants are hard 'to come by. So, we
have to rely on the people who believe in the value of this
magazine and its goals for the support to keep publishing.
If you are reading this, You are one of those people,. and
we need your support now more than ever.
In the past several months we have been receiving
more and more requeslS from prisoners in long term
confinement on Close Management or from death row
prisoners, who have nothing and no way to get anything,
for free subscriptions to FPLP. It is our policy to provide
such subscriptions as finances allow, and we have been
doing that On top of that, perhaps because of the recent
hurricanes that have hurt the economy and caused .a lot of
hardship, we've had more family members and friends of
prisoners wanting to become members but unable to
afford the full dues. We, of course, can't tum them away,
~e sign them up and send them FPLP and welcome them
into the organization.
.
We have quite a few prisoners who can only send
a few dollars or stamps at a time, but want to receive
FPLP and be a part of Florida Prisoners' Legal Aid
Organization, Inc. Though it means more work to keep up
with partial dues, we do it because we want all prisoners
to become a member and receive FPLP if they want.

Usually. donations from our more solvent
members make it possible for us to do the above, though
the budget is stretched thin. Recently, however, donations
have slowed. perhaps because of the hurricanes and
downturn in the economy, and the budget for FPLP has
become more than stretched. it has become very strained.
We, and· when I say "we" I mean all those who
work to keep FPLPgoing, are all volunteers. None of us
receive a salary. We volunteer our time and often long
hours to the effort because we care. We often donate out
of our own pockets when necessary to keep everything
going. And we do want FPLP and the organization to
keep going, but we need your help and additional support
right now. at this time, to make that possible.
IF you can make a donation, no matter how small
or large, I'm asking you to do so now. If you are
renewing your membership dues and can, include a couple
of extra dollars. every little bit will help. If you can't
make a donation, get a family member or friend to become
a member or make a donation.
We are willing to continue bringing this magazine
to you and fighting for prisoners and their families here in
Florida, which we are doing in some form every day. But
if we are to survive this rough bump we are experiencing
right now, then you and your support are what's going to
make it possible. Thank you for your support. 1know we
can count on you.
Sincerely,

Teresa Burns Posey, Publisher •

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by Oscar Hanson

T

he story has been told countless times; the ending is
much the same. Men and women freed from prison,
often after spending years on death row staring in the eye
execution or physically assaulted by other inmates, and for
some, isolation. With the advent of better DNA testing,
over 100 men have been freed from death row alone, but
only'after an average of eleven years, according to a study
conducted by the University of Michigan.
Recently one of those wrongfully convicted was
released from a Florida prison after serving over 21 years
in prison for a crime he never committed. His story is
shocking. but not unique. We've only touched the tip of
the iceberg, the fact remains that hundreds, maybe even
thousands of innocent men and women remain behind bars
for crimes they never committed. And for them, their time
is the hardest because they can never come to grip wJiy
3

Florida Prison Legal Penpeetlves
they remain in prison. Unfortunately for many, if not
most, they will remain in prison until the expiration of
their sentence because they do not have the key that has
opened the gates for the recent exonerees: DNA.
The Accused
Wilton Dedge was released from prison on
August 12, 2004, after spending 21 years, 10 months, and
23 days ill' the Florida Department of Corrections. He
entered the prison system when he was 20 years old.
Dedge lived with his parents in Pan St. John, a town of
400 anchored by the twin towers of a Florida Power and
Light Plant.
On December 8, 1981, Dedge was in New Smyrna
. Beach where he was working for a garage repairing
transmissions. As the close of the day approac~ one of
the garage owners invited Dedge to ride on their
motorcycles to Pub 44 for some sandwiches and a cold
beer. After they ate, darkness fell and the two men headed
to another pub called Moe's Bar.
The Assault

Forty six miles away in Canaveral Groves, a
young girl, 17 years old was repeatedly beat and raped by
a man who wore jeans, a white cut off T-shirt and brown
motorcycle gloves. He had long. fine blond hair, a thin
mustaches, and green eyes. In the span of 45 minutes, the
young girr, nicknamed Trish, was cut 65 times and raped
twice.
Trish's boyfriend took her to the hospital and
fortunately most of her wounds were superficial., .
Four days later Trish and her sister drove to
nearby Port St. John to check out the home they lived in
before their parents divorced. Perhaps memories of
childhood days would restore Trish and erase some of the
trauma she had suffefed.
The Arrest

As Trish and her sister traveled through Port St.
John they made a stop at the JiffY Mart to buy cigarettes
and soda. While at the store Trish saw a man she thought
resembled the assailant. She discussed this with her sister
who then recognized the man as an elementary classmate.
When asked whether she wanted to call police, Trish
answered, no.
Trish retuned to the Jiffy Mart a week later and
saw the man again. Her sister initially thought his name
was Walter Hedge, Trish later corrected it to Walter
Dedge.
On January 8, Brevard County Sheriffs Sgt.
Steven Kindrick arrested Wilton Dedge's older brother,
Walter.
.
Two days later SgL Kindrick showed Trish a
photo pak that included Walter. Surprisingly Trish told
Kindrick that it wasn't Walter, but his brother. Later
"Kindrick released Walter and arrested Wilton. He then
4

showed Trish a new photo pak that included Wilton where
she quickly pointed out Wilton. No doubt about it.
The Evideace
.In March of 1982 Dedge was accompanied by an
investigator from the state attorney~s office where he was
instructed to wet his hands then dry them on paper towels.
He then gave them to investigator George Dirschka who
hung them in his office to dry. Later he placed them in an
evidence bag and sealed it.
Eight days later, Kindrick took the bag to a crime
scene investigator who had arranged a line up of five sets
of bedroom sheets. In the No.3 position were Trish's
soiled bed sheets with traces of blood on them. The other
four sets where white sheets from the jail's dirty laundry.
In came dog handler John Preston and his mantrailing purebred German Shepherd, Harrass II. Preston
stuck the bag containing the paper 'towels Dedge had dried
his hands with in front of the dog's nose. Suche, he
commanded the dog. meaning Search in German. Twice
Preston walked the dog past the five piles of sheets. On
the'second pass, Harrass II stopped, put his nose on pile
No.3 and sniffed.
David Jernigan, a microanalyst with the Florida
Department of Law Enforcement conducted forensic tests
and used pubic hair collected from Wilton and found both
similarities and differences, yet determined the differences
were not sufficient to entirely eliminate Dedge as a
suspect.
Prosecutors were more zealous. They were sure
Dedge was their man: Trish was convincing; they had dog
scent evidence; and now, the pubic hair. To them, it all
fit.
TbeTrial
The trial lasted eight days. Trish pointed Dedge
out; she said he was the man who raped her. The dog
handler and the hair analyst testified. In his defense,·
Dedge said it wasn't him. His alibi witnesses-five in
all-put him at the auto repair shop, nearly 50 miles away.
The jury deliberated four hours then pronounced
him guilty as charged.
At sentencing. Dedge's father beseeched Circuit
Judge J. William. Woodson. Dedge Sr. told Judge
Woodson that someone out there did this, and they have
not been caught. The Judge acknowledged that and
responded. but the juries I have seen let a lot of guilty
ones go, in my mind and the defense attorneys minds, that
they know are guilty.
Dedge's lawyer, Joseph Moss, jumped in and
stated that he had never had a case in his 12 years of
practice that he thought was decided as wrongly as this
one.
Dedge was sentenced to 30 years.

Florida Prison Legal PenpectiveS
TbeSDiteb

During the 1980's, Sumter Correctional Institution
was coined the gladiator school for Florida's prisoners.
So many inmates had knives and other lethal objects.
Anger and racial tension permeated the' place. .
Dedge's first eighteen months was kept to
himself, unassuming, observant, until. good news came as
the calendar turned to 1984. An appeal court ruled that
Dedge's trial judge should not have barred his defense
attorney from putting on an expert to challenge the dogscent evidence. He was entitled to a new trial.
'
On January 23, 1984, Dedge left Sumter
Correctional bound for Brevard County to request bail
while he waited for his second trial. During transport,
several stops were made at local jails and other prisons.
At the North Florida Reception Center at Lake Butler,
Clarence Zacke got in the ,van. Zacke had been sentenced
to 180 years for three murder-for-hire plots. He had
become accustomed to testifying against others as a
jailhouse snitch, and with favorable results: His sentence
was cut. He was heading for Brevard to testify against
someone else.
Shackled and seated on wooden benches opposite
each other, Dedge and Zacke talked for two hours. The
next night, Dedge's prosecutor, John Dean Moxley, Jr.,
got a call at home. It was Zacke's son. He had some·
information regarding the Dedge case.
At Dedge's bail hearing a few days ·Iater, Clarence
Zacke testified that Dedge told him he "raped and cut up
some old hog." Bail? Denied.
The Seeond Trial

Mark Horwitz was Dedge's new lawyer at the
second trial, and he had a slew of ammunition ready.
. Among the arsenal was transcripts from the previous trial
where the dog handler had testified that he was a member
of the United States Police Canine Association. He was
not. Preston had also misrepresented his level of training
at the Tom McGean School for Dogs in Pennsylvania.
Moreover, the United States Postal Service had
investigated Preston, questioning the reliability of his
tracking in a number of criminal cases. Dog handling
expert$, had accused Preston pf cui~g. his dogs and ..had
questioned his assertion that his dogs could track someone
years after the fact. In one case, a judge ordered a test
after just four days; Preston's dog failed.
As Preston's credibility faltered, the prosecution
shifted focus to its new evidence: Clarence Zacke. A
veteran snitch, his testimony is other cases shaved 130
years from his sentence and got a confiscated truck
retun\ed to his girlfriend He also got the prison transfer
he wanted. For testifying against Dedge, he hoped to
improve his chances for parole.
The all-male jury deliberated seven hours and
reached the identical verdict as had the first jury.

At sentencing, December 12, 1984, Prosecutor
Robert Wayne Holmes pointed to Zacke's testimony that
Dedge had threatened to kill the victim. .That gave the
judge the leeway to exceed the 30 years Dedge got
initially. This time Dedge was sentenced to life in prison.
Inside Prison
Dedge was returned to prison where he found
himself becoming. friends with murders, drug dealers,
burglars, and a host of others. He chose not to focus on
what they were in prison for, instead he took them for how
they were like.
Soon he got his GED and practiced various
hobbies. He tried not to think about his anger for the
system, but occasionally he'd catch himself writing about
it and the prosecutor, only to rip it up later.
For five years he lived court document to court
document until he exhausted all available remedies. He
spent two years with nothing to cling to, until he read a
newspaper article about a new DNA test.
Dedge contacted his former attorney's secretary to
determine if the pubic ~ir and semen sample evidence
still remained. He contacted 35 lawyers; not one would
take his case.
Four years passed.
.
In early 1994, Dedge was watching Good
Morning America where lawyer Peter 1. Neufeld and
Barry C. Scheck had started the Innocence Project, a
nonprofit legal clinic that worked to obtain new DNA
testing for· prisoners.
.
Dedge wrote and the Innocence Project started
investigating. The pace was excruciating. Three more
years passed.
In 1997, Scheck's team, unable to get Dedge's
prosecutors to agree to test his DNA, asked a judge for
permission. One of the first in Florida.
The state fought the request to apply new science
to an' old case, claiming the time for post conviction relief
had elapsed.
Appeals courts agreed the Dedge was
"procedurally barred" from obtaining the evidence.
..
By now, prominent Miami Lawyer, Milton
Hirsch, an expert on criminal procedure, had joined the
team. He worked for free and appealed to a judge to aUow
the test for the sake ofjustice. In 2000, the judge agreed.
Unfortunately the semen sample had degraded
across 18 years; the DNA test was inconclusive. But the
test on the pubic hair was definitive: It had not come from
Dedge.
At trial, Holmes had told the jury that the pubic
hair aU but put Dedge in the victim's bed. Now he
claimed the hair was irrelevant, it could have come from
anywhere.
Hirsch demanded a new trial. Holmes responded
the timing was off. First, Holmes had argued that Dedge
5

Florida Prison Legal Penpeetives
was too late-the time for appeals had passed-now he
argued that it was too early.
The Florida Legislature had recently passed a law
providing a mechanism for prisoners to seek DNA testing
in old cases. Because Dedge got permission for DNA
testing before the new law passed, the proseCution said he
could not take advantage of the new law.
The issue found its way to the Fifth, District Court
of Appeal that ruled Dedge could indeed use the DNA
evidence to seek a new trial.
Freedom
After the inconclusive DNA test on the semen
sample in 2000, a m9re advanced test, known as Ychromosome had become available.
The two sides now flopped positions.
The state, which had opposed tests, wanted this
one. The defens~, which had demanded tests, opposed
it-for now. It had been three years since DNA proved
the pubic hair came from somebody other than Dedge.
The state got its way.
On August 11, Dedge got a call from Nina
Morrison, one of his new lawyers. The results were back,
the semen was not his. You're free.
At 1:15 a.m. August 12, he was released to his
family.
Epilogue
The outpouring from the community was
overwhelming. The men at his brother's metal fabrication
plant chipped in 5300 to help Dedge in his new lease on
life. A lady sent a 5100 coupon for Wal-Mart. Someone
at the checkout lane at Publix handed him SIO. A dentist
offered free dental service. And someone sent him 55,000
anonymously through a local church.
Several job offers came in, many from wastewater
and'water plant treatment businesses.
Leading. the effort to compensate Dedge for his
lost years is Sandy D'Alemberte, a former legislator and
Florida State University president whose office in next
door to the Florida IMocence Initiative. Currently the law
caps claims against the state at SI00,000; to get more, the
Legislature must pass a special claims bill.
Dedge's attorneys say they intend to file a civil
rights lawsuit for wrongful imprisonment. Also, 1.
Cheney Mason, an Orlando lawyer, said he is
investigating whether zack~ the snitch, was planted on
the prison transport van to get Dedge to talk. Zacke has
said that prosecutors from the Dedges case fed him
information to make another case against Gerald Stano, an
accused serial killer who has since been executed.
Dedge's' story is not unique. To date there have
been over 180 people exonerated, many from death row as
a result of this new DNA testing. Countless others remain
imprisoned without this freedom tool. It's time for
prosecutors to be accountable for wrongful prosecution. If
6

these types of prosecutions are allowed to continue, then
many of the civil liberties carved by our founding fathers
are meaningless, and what we once deemed vital to our
society is now a delusion.•

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lP'Ir'<IDIP><ID~Slll ~ nnmmmmSlIry
TALLAHASSEE-On Dec. 6, 2004, the Florida
Department of Corrections submitted a proposal to the
state Legislature suggesting amendments to Chapter 948,
Florida Statutes.
The proposal recommends both technical and
substantive changes to Chapter 948. It urges the
legislature to rename that chapter of state laws from
"Probation and Community Control" to "Community
Supervision," and would provide definitions for
department, conviction, community residential facility,
non-institutional residential placement, supervision
services and violent offense•.
The proposal would re-defme the levels of
community supervision to: Administrative Supervision,
Non-violent Offender Supervision, Intensive Offender
Supervision, and Community Control.
Electronic
monitoring would be authorized with Intensive Offender
Supervision and Community Control at the discretion of
theFDOC.
The redefined supervision levels would enable the
FDOC to re-direct resources to supervision of offenders
based upon their risk to public safety, according to the
proposal.
The proposal would require local law enforcement
to arrest and take into custody offenders without a warrant
at the request of a probation officer. It has 'a requirement
for the Clerk of the Circuit Court to implement a unifonn
order of community supervision and further would require
the clerk to provide, at no cost, specified court documents
totheFDOC.
The proposal would also create "Automated
Reporting Authorized," to allow low risk, non-violent
offenders to report and submit written reports without
reporting to the probation officer in person. It would also
require the state attorney to notify the court of any
outstanding warrantS of arrest and whether the accused is
currently on any type ofcommunity supervision.
The FDOC, through the Office of Community
Corrections, provides supervision of over 150,000
offenders on probation, community contro~ drug offender
probation, sex offender probation, pretrial intervention,
and post prison release. Supervision is provided through
three regional offices and twenty circuit offices, each
circuit corresponding to the judicial circuit in its
geographical area.
The FDOC currently has 2,346 officers
supervising offenders sorted into five budget entities that
correspond to different types of supervision (community

Florida Prison Legal Penpectives
control, drug offender probation, pretrial intervention, sex
offender, and post prison release supervision,- and regular
probation).
Because the term "probation" only describes one
type of supervision, the proposal shows that the intent of
the DOC is to re-define any type of offender supervision
program as "Community Supervision."
The term
"community supervision" is substituted throughout
Chapter 948 for the terms "probation" and "community
control" in the legislative proposal.
The FDOC is. hoping this proposal will be
.introduced as a bill during the 2005 legislative session and·
passed into law this year. • .
'

E

leven people direCted to the wrong courtroom in the
Seminole County Courthouse were arrested and jailed
when they didn't appear before the proper judge, who was
in an adjoining courtroom less than 100 feet away.
The six men and five women spent eight hours in
jail before everything was corrected.. One of the jailed
was in. court on a traffic ticket for not having her
registration and proof of insurance with her as she traveled
in the county. Her citation directed her to report to
Courtroom IB. However, the County judge was holding
court in Courtroom IA.
When the eleven people failed to show up in
Courtroom lA, Seminole County Judge John Sloop signeP
warrants for their arrests. By the time the eleven finally
discovered they had been misdirected by court personnel
and asked to appear before the judge to explain. what had
happened, the draconian judge would not see them and
ordered their arrests.
Late; that day, Circuit Judge James Perry, chief
judge of the 18th Judicial Circuit. took action to release the
eleven. For reasons unclear, Sloop took similar action to
have the eleven released without bail.
[Source: Associated Press, Florida Today, 12/5/04] •

nonofi~<IDIlIl

(Q-un51IrcdJ.

~<ID~~~
IB3<e~~nn IBI<IDun~~
'Cl:<ID IInumm an'Cl:~
Texas prison guard has been forced to give his beach
A
house to an inmate he sexually assaulted. Guard
Michael Chaney agreed to give inmate Nathan Essary the
deed to his beach property near Galveston to settle the
sexual-assault lawsuit against him. Essary claimed he was
assaulted by Chaney three years ago at a prison unit in
Navasota, Texas. He complained to Chaney's superior but
got nowhere, so he secretly collected the guard's DNA

during two attacks and mailed it to the FBI and federal
prosecutors in Houston. A DNA analysis led to Chariey's
arrest. His criminal case is pending. -USA Today,
12/23/04..'

s the staff at FPLP focuses on the new year and the
A
many challenges it will undoubtedly bring. I have
reflected
some of the major events that occurred

011
in
2004 to see how they wiU likely set the stage for events in
200S. Perhaps the most significant news involved the
exodus from prison of an alarming number of wrongfully
convicted, freed primarily on DNA evidence that
exonerated them. This topic is one that shocks the
conscience and one that is especially sordid for me for
reasons beyond this commentary.
But as the number of exonerated grows, concerns
are mounting about the difficulties these former prisoners
experience in finding employment and readjusting to
society once they are free. While prison paroles and early
release prisoners typically get free job placement
assistance and temporary housing, the exonerated often
are released into an employment no-man's land.
These wrongly convicted men and women get
scant help finding jobs. For obvious reasons their resumes
have gaps from spending years in prison. The average
time from wrongful conviction to exoneration is more than
eleven years, according' to 'a study conducted by the
University of Michigan.
.
.
The undeniable problem lies in the lack of
legislative support for the wrongfully convicted. Only 18
states, the federal government and Washington D.C., have
laws for compensating the exonerated. Even the states
with such laws have deterrents in place that cause
exonerees not to use them. Compensation can take years
to get and in most instances, exonerees need an official
pardon or an adjudication from the court declaring them
innocent. But compensation alone is not enough. 'The real
problem lies in employability.
Potential employers are leery of hiring former
prisoners who may have been wrongfully convicted. Job
skills have proliferated so much that some exonerees may
have never sent an e-mail or even used a 'computer. Even
more significant is the emotional displacement these men
and women suffer. According to the Michigan study,
more than 9S percent grapple with emotional' problems.
Some narrowly escaped execution. Others have been
physically.or sexually assaulted by other inmates or kept
in isolation. Many are .obviously angry. And some even
resort to crime after their release.
.
Another huge problem .plaguing the exonerated ;s
the fact that their records will continue to sho\\' they were
arrested, tried, and convicted.
' Records are not
automatically expunged, even in cases of a gubernatorial
pardon.
In other words, employers conducting a

7

Florida Prison Legal Perspectives
bac~ground check will likely come across the information
and opt not to· interview the applicant, especially with
unemployment figures around 5.4 percent as it was in the
4111 quarter of2004.
.
Action· must be taken to generate legislative
support for employment assistance and record
expungment For our tTeeworld readers, contact your
local representatives and express your concern for these
unjustly treated exonerees, demanding some legislative
action to address their concerns. 'For our incarcerated
friends, tell your family to make their voice heard. Our
wrongfully convicted counterparts desire our support.
After all, one day it could. be someone from your family in
these shoes, or worse-yourself.
On behalf on the staff at FPLP, have a successful
and prosperous New Year. -~,9r(lJIJOII' •

IWhat states otIer the exonerated
•

II

just lBstares, ~nc..and

the federal gcwernment have ann-

pensatimllaws Corthewrqly CODvicted. Amounts are sometima de~ by a state agency.
someameslly a allar and can be
Ci.p,1led by laW Rna! payrJlents'VatY
widely:

AIaIiuu: MinImum ofSso.ooo Cor
~~seIVed.

seMel

•SlOll aday ~each day

District ofCOlumbia: No cap.
JIIIDoU: Maximum SlS.ooo Cor up
to five years: $30.000 for six to 14
years, S3S.ooo Cor more than 14.

New~MaxImum
S2O.ooo.

New jersey:(apped at twice the

amount eafned tfie year before Incarceratlon or S2O.ooo. whlchever is
greatet

Hew1'lrtcNo CiJ'.
North c.ouoa: S2O,OOO ayear. lOtal not to exceed

ssoo.ooo.

0Id0: 525.000 a year orlnca:rceratlon, plus lost wages and attorneys
fees.
O1daboma:S17S.ooo maximum.
No punitive cIamasles.
nanessee Sl million taP:
1aas: 525,000 per year orIncarceratIan. total not to meed ssoo.ooo.

==yearof~
•gm; or the awrage VirginIa iIIalme lilr up to 20
Maxlmwn S3OO,OllO. No pu- Sl0.000 In tWtIan to eiuoII in the

'OWiI:S50adayCoreadldayseMd

and lost wages \IP to S2S.ooo a year.
I =.:ameys.
fees.

!

years;

I desciibed
~.
cl~.o.caponcmnpensat!on
as
cIama&es sus- .~~
-actual
tained..
I'tIontaIL1: Free tuI1ion 10 aItf scItooI
\nthe swe's 1DliYersitysymn.

S2S,OllO cap.

Fedenli'MIameut: SS,OOO cap.

~~=:=-01'''''d'-

North Dakota leads prison boom
States that had the largest percentage increases in state
prison inmates from Dec. 31. 2002 to Dec. 31. 2003:

l1A%

103%

I. Iii ~ ':
Jill·)

North

DakOld

Minn~sota

Montana Wyoming Hawaii

Sf.lUU'; [hllW;-"w uf JUslkr \I.attRin

2.1%

II

us.

j

IP'lrfi~<IDlDl<err

S t1Il:fi~:fi<dl<e g

:RtfiSllDly JM[<elDl1tSlIllly

rrnn

rison officials in Iowa and Ohio are studying suicide
P
prevention policies in the wake of recent deaths at
their state prisons. Despite the spike of suicides in these
two states, the suicide rate in both state and federal
prisons, as well as local jails, has declined over the past
two decades, according to the Federal Bureau of Prisons
and the Bureau of Justice Statistics. Yet suicide remains
the No. I cause of death in most local jails and is the thirdleading cause in state and federal prisons, behind natural
causes and AIDS, making suicide a continuing concern for
corrections officials.
Many inmates who take their own lives have
diagnosed mental health problems and according to a
specialist on inmate suicide there is a connection between
mental illness and suicide. Yet, Lindsay Hayes, project
director for the National Center on Institutions and
Alternatives, a non-profit group· dealing with mental
health issues, claims that it's a misnomer to believe you
have to be mentally ill to kill yourself. The stresses of
being in prison or jail can lead a seemingly. healthy person
to attempt suicide.
Nevertheless, criminal justice and mental health
experts agree that mental illness is a common thread
connecting many prisoners who take their life.
.
In October 2003, a Human Rights Watch report
on how U.S. prisons deal with mentally ill inmates noted
there are three times more mentally ill people in prison
than in mental health hospitals. In addition, prisoners
have rates of mental illness two to four times greater than
the rates found in the general population.
There are many mentally ill who are homeless
because they have nowhere else to go. If they are not
hospitalized, there are too few community-based mental
health programs available to assist them. And if they
commit even petty crimes, they wind up incarcerated.
Prisons are the de facto mental institutions of this
century. Not surprisingly, they are woefully iII-equipped
to deal with this increasingly large population. In Florida,
the trend has been to sedate and lackdown such prisoners
in close management cells for 23 hours a day.
And while some say that greater awareness of
how to prevent suicide has contributed to the declining
rate of prisoner suicide, others say that the development of
suicide-prevention policies is not enough. There has to be
a mechanism in place to ensure those protocols are in fact
put into place and acted on. Something many question has
occurred.
[Source: USA Today, 12/6/04] •

{avg.}

8

•

~~.

Florida Prison Legal Penpectives
4

•

RHOTO~ &

'-'':c

I

:-r'

,.

Y-

I!'~'

.'1:.

~''J/

.• "

I!'! "'.1':

.:::.. '

.......

HAYMAN, P.A.

'"

.

"
-

:

rrr

.-.

.....

.' "

.

'I ~

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r
j

. ....

"

.' .{

Y'

Florida Prison Legal Penpectives

POST CONVICTION
CORNER

by Loren Rhoton, Esq.

Consistent with recent legislation, the Florida Supreme Court has extended the deadline
for inmates requesting postconviction DNA (deoxyribonucleic acid) testing to prove their
innocence. The deadline has been extended to October 1,2005. Any persons with caSes that
could be resolved favorably through DNA testing are strongly urged to pursue such relief
immediately in order to avoid missing the October 1,2005 deadline. The purpose ofthis article
is to provide some guidance as to the procedures relating to DNA testing.
Florida Rule of Criminal Procedure 3.853 and Florida Statutes §925.11 provide for
postsentencing DNA testing. Firstly, it is important to note that relief under rule 3.853 is only
available to defendants who took their casettftrial. Criminal defendants who entered a guilty or
nolo contendere plea cannot avail themselves of the benefits of Rule 3.853. See, Delidle v. State,
866 So.2d 748 (5 th DCA 2004). But, ifa defendant took his case to trial, was convicted and later
learned that DNA evidence existed which likely would have made a difference at trial, Rule
3.853 is a"viable postconviction vehicle for seeking relief from a judgment and sentence.
§92S.11 provides that any person who has beeh tried and found guilty of committing a crime and
has been sentenced by a court established by the laws ofthis state may petition that court to order
the examination ofphysical evidence collected at the time ofthe investigation of the crime for
which he has been sentenced which may contain DNA and which would exonerate that person or
mitigate the sentence that person received.
A Rule 3.853 motion must be under oath, filed with the trial court, and should include the
following:
·a statement ofthe facts relied upon in support ofthe motion, including a
description of the physical evi<;lence containing DNA to be tested and, if known,
the present location of last known location ofthe evidence and how it was
originally obtained.
·a statement that the evidence was not tested previously for DNA, or a statement
that the results of previous DNA testing were inconclusive and that subsequent
scientific developments in DNA testing techniques likely would produce a
definitive result.
• a statement that the movant is innocent and how the DNA tes.ting requested by "
the motion will exonerate the movant of the crime for which the movant was
sentenced, or a statement how the DNA testing will mitigate the sentence received
by the movant for that crime.
10

Florida Prison Legal Penpectives
• a statement that identification ofthe movant is a genuinely disputed issue in the
case and why it is an issue or an explanation ofhow the DNA evidence would
either exonerate the defendant or mitigate the sentence that the movant received
·a statement ofany other facts relevant to the motion.
• a certificate that a copy ofthe motion bas been served on the prosecuting
authority.
If the 3.853 motion is going to be filed pro se, it would be wise to request a finding that
you are indigent (ifapplicable) and the appointment of counsel. The rule provides that the trial
court may appoint counsel. Additionally, unless the movant is adj~eated indigent, he will be
responsible for the costs of the DNA testing. But, if there is a finding ofindigency, the State
shall bear the cost of the testing.
Ifthe court finds that the allegations in the 3.853 motion are sufficient, then DNA testing
will likely be ordered. Pursuant to Rule 3.853, the testing will be done by the Florida
Department of Law Enforcement. However, the rule does allow for testing by another laboratOly
or agency certified by the American Society of Crime Laboratory Directors or the National
Forensic Science Training Center when requested by a movant who can bear the cost ofsuch
testing. Therefore, iffeasible, it may be beneficial to have the DNA testing done by a laboratory
unconnected with the State.
'
If DNA testing has been ordered and shows that the movant is unconnected to the DNA
samples available, a Rule ofCriminal Procedure 3.850 (or 3.851 in a capital case) motion should
be filed requesting a new trial or resentencing. A motion to vacate filed under rule 3.850 or a
motion for postconviction or collateral relieffiled under rule 3.851, which is based solely on the
results ofthe court-ordered DNA testing obtained under Rule 3.853, shall be treated as raising a
claim of newly-discovered evidence and the periods oflimitation set forth in rules 3.850 and
3.851 shall commence on the date that the written test results are provided to the court, the
movant, and the prosecuting authority.
Once again, it is important to keep in mind the. October I, 2005 deadline that has been set
for Rule 3.853. A motion for postconviction DNA testing must be filed: (1) within 4 years
following the date that the judgment and sentence in the case became final if no direct appeal was
taken; (2) within 4 years following the date the conviction was affmned on direct appeal ifan
appeal was taken; (3) within 4 years following the date collateral counsel was appointed or
retained subsequent to the conviction being affirmed on direct appeal in a capital case in which
the death penalty was imposed; or (4) by October 1,2005, whichever occurs later. Or, the
motion may be filed at any time if the facts on which the petition is predicated "{ere unknown to
the petitioner or the movant's attorney and could not have been ascertained by the exercise ofdue
diligence.
If a 3~853 motion is wrongfully denied by the trial court the movant may request a
'rehearing ifhe does so within 15 days of the denial. Such a motion for rehearing shall toll the
time for filing an appeal until the motion for rehearing has been ruled upon. Ifthe trial court
11

Florida. Prison J,.egal Pe~p~c~~
denies the motion for rehearing, the denial can be appealed to the appropriate district Court of
appeal. The time for filing a notice ofappeal under Rule 3.853 is within thirty days ofwhen the
order denying the 3.853 motion is rendered or from when a motion for rehearing is denied,
whichever is later.
Florida Rule of Criminal Procedure 3.853 and Florida Statutes §925.l1 provide an
important vehicle for innocent persons wishing to challenge their convictions when DNA will
prove their innocence. The deadline has been extended for older cases and should not be
ignored. Ifyou have a case that is appropriate fllr Rule 3.853 relief, a motion shc;>uld be filed
immediately requesting DNA testing. Otherwise, this possible avenue fo~ reJi~f may be waived.
Loren'Rhoton is a member in good standing with the Florida Bar
,and a member ofthe Florida Bar Appellare Practice Section. Mr.,
Rhoton practices almost exclusively in thepostconvictionlappellate
area ofthe law. both at the State and Federal Level. He hiIs assisted
hundreds ofincarceratedpersons with their cases and hils numerous
written appellate opinions. 0
.

:r:ED<:.ellD.ann~
~llDllI>no<ID~ann §!>lli1llDSS-

JJ::D<:.ean'CtIln

oUowing the exoneration of an overwhelming number
of mistakenly convicted death row prisoners, the
public's approval of capital punishment has slid from 80
percent in 1994 to 66 percent this past year, according to
Gallup poUs.
Recently the Scott Peterson trail underscored the
unevenness around the country in applying the death
penalty. At the extremes are California, where the pace of
, death-sentence appeals and executions is extremely slow,
and Texas, which has put more than three times as many
, inmates to death ~ the next closest state since the United
States Supreme Court reinstated capital punishment in
1976.
While California's death row is the nations
biggest-643 inmates-it's modest in relation to the
state's 35.5 million population. Of II states with at least
100 condemned inmates, nine, including Texas, have more
per capita than California. . Only one of the eleven,
Pennsylvania, has a lower rati9n of executions to
population. Texas has the second highest ratio after
Oklahoma.
Prisoners condemned to death row may sit for up
to 20 years before they are ultimately executed. It often
takes four or five years for a condemned inmate just to get
an initial appeal in California. In Texas, the process is
much faster. Florida rests somewhere in the middle.
Federal appeals of death sentences can't begin
until state appeals are exhausted., They habitually take
longer.
12

F

The national. average stay on death row is 9.6
years, according to ~ J~ce Department.,
A death row' prisoner's biggest handicap is poor
counsel. For example, at least four Texas prisoners have
been executed because' their attorney's failed to file
federal appeals on time, claims Richard Dieter, executive
director of the Death Penalty Information Center in
Washington, D.C., a clearing house for capital punishment
data. •
'

States with executions since 1976
Thirty-eillltstaleS and the redei'a1 government aIkPN~
SLltes that have executed prlscners since the Supreme
legalized the
, death penalty in 1976:

EIecuIkms
5iltce '
SlUe 1976 2004.
Texas·, 337 23

1976

State

Del.

, I

Va.

94

S

10.

6

Ca.

7S
61
S9
36

N.c.

34

s.c.

32

4
4

Ala.

30

2

La.

27
26

11
11
Ind.
10
CaIit
6
Miss.
6
Utah
Md .4
WWI. 4
3
Neb.
3
Pol.

Ark.
Ariz.
Ohio

22.
lS

2

7

2004

13
12

Olda.
Mo.
fk.

:.1

!xIcUIIaDI
5IDce

IlxecaIloJIS '

Slace

Nev.

K}t

2

Mont

2

2

Stale

197&

Ore.
CcIo.
Idaho
HM,

2
1
1
1
1
1

Tenn.
~

FecIa'.

1'

alp

2004

3

-= QllIllOCIkur.IWlsM.JnVf, -

1t&alpsIIlft." _

_llIdsa..ll~_1!lP

dWllJlflWlrIlllf_naI....
,

,

<UlId,,,-",,,,,mll.
l-lmuslNsaMlledGlltpr1s-

_111-

~-I'INIIyl1aftClml«

Florida Prison Legal Perspectives
prisoners were black. 35%
were white and Hispanics
made up about 19%.
Nationwide, about 9% of all
black males between 25 and
29-years-old were in prison.
compared to almOst 3% of
Hispanic males and 1% of
white males in the same age
group.

UoSo lPrison Population
Continues to Grow
ccording to the latest U.S.
A
Bureau of Justice Statistic's
report. the number of people in
federal and state prisons in the U.S.
was a record 1.47 million in 2003.
The report noted. however, that the
rate of growth in the number of
prisoners was only 2.1 %, continuing
a decline from 6.5% in 1995. This,
according to the report's authors,
suggests that fewer new prisoners are
entering prisons, but those already
there are serving longer sentences
and are not being release, leading to
an older prison population. Since
1995, middle aged prisoners have
made up almost half of the prison
population
growth rate, and
according to the bureau's annual
survey of prisoners, in 2003 almost
30% of prisoners nationwide were
between the ages of 40 to 54-years~
old
The bureau's report also
notes that:
•

Women are being sent to
prison at a higher rate than
men. In 2003 there were
about 101,000 women in
federal and state prisons, an
increase of almost 50% since
1995. The federal prison
system and Texas and
California accounted for
almost one-third of all
female prisoners.

•

The U.S. average was 482
prisoners
per
100,000
residents,
Louisiana.
Mississippi,
Texas,
Oklahoma and Alabama had
the
highest
rate
of
incarceration. with more than
635 prisoners per 100,000
state residents.

•

The racial makeup of U.S.
prisons remained largely the
same. On Dec. 31, 2003,
approximately 44% of all

•

The
federal
prison
population is growing the
fastest
Since 1995 the
federal system's growth rate
has averaged 7.7% per year,
compared to an· average of
3.3% for the state prison
population.
The general
consensus is that the growth
in federal prisoners is
directly attributable to the
Bush
administration's
aggressive enforcement of
federal drug laws.

Supporters of increasing
incarceration say that falling crime
rates are proof that longer sentences
and reduced release opportunities are
effective in reducing crime.
"The reason crime rates have
fallen to levels we haven't seen for
more than 30 years is due to the
nationwide movement to keep
habitual criminals behind bars," said
Michael Rushfo~ president of the
Criminal Justice Legal Foundation in
Sacramento, CA.
Rushford also
claims, "The increase in inmate
population since 1995 reflects the
fact that fewer repeat· .felons are
being. released from prison."
Critics
of
America's
incarceration policies argue that the
record prisoners, combined with
continuously falling crime rates,
justifies implementing less costly
alternatives to prison.
"Half the prison population
[is] now serving time for a nonviolent offense, and [there is] an
aging prison population." said Marc
Mauer, assistant director of The
Sentencing Project that's based in
Washington. D.C. 0

More inmates
The number or state and l'ederaI prison
inmates hit a reamI high last year.
2002 XdwIge
2003
29,253 27~7
4.7
4,398
4,527
2.9
6.2
31.170 29,359
-0.1
13.084 13.091
164,487 161.361
1.9
19,671 18.833
4.4
.colo.
19,846 20.720
-42
Conn.
6,778
6,794
02
DeL
79,594 75,210
5.8
f1a.
47,208 47,445
-0.5
Gao
5,828
5,423
7.5
Hawaii
5,887
5.746
2.5
Idaho
43,418 42,693
1.7
III.
6.7
23,069 21,611
Ind.
8,398
1.8
8.546
Iowa
8,935
2.2
9.132
Kan.
16,622 15,820
5.1
IS\'.
0.0
36.047 36,032
La.
1,900
5.9
MaIne
2.013
-1.5
23.791 24.162
Met.
10,232 10,329
-0.9
Mass.
49,358 50,591
-2.4
Mlch.
7,865 . 7.129
103
Minn.
2.1
Mlu.
23.182 '22,705
30,303 30.099
0.7
MOo
3,323
8.9
Mont.
3.&20
4.058
-oA
Neb.
4.040
10,543 10,478
0.6
N«
..{).7
2,451
N.H.
2.434
27,246 27,891
-2.3
N,J.
5,991
6,223
3.9
NoM.
-2.8
65.198 67.065
NoY.
33,560 32,832
2.2
N.C.
N.D. .
1,239
11.4
1.112
44.778 45.646
-1.9
Ohio
22,821 22,802
0.1
Okla.·
12,715 12,085
52
Ore.
40,890 40.168
1.8
Pa.
3,527
3,520
0.2
R.I.
23.719 23.715
0.0
s.c.
3,Q26
2,918
3.7
s.o.
1.7
Tenn.
25.403 24,989
3.0
'D!xas 166,911 162.003
5,562
3.6
5.763
Utah
1,944
1,863
43
Vt.
0,3
va.
35.0&7 34,973
16,062
16,148
0.5
wash.
4.7
W.va. 4.758 4,544
22,614 22.113
2.3
Wls.
Wyo.
1,872
1.737
7.8
5.8
Federal 173.059 163,528
2.1
USA 1A7O.0451MO.144

SUIe

Ala.
AJaska
ArIz.
Ark.
cali!

ScMlIW: BuINU afJusaaSUllllla

13

Florida Prison Legal Penpectives

AZ - According to a study released
by The Arizona Republic in Nov. '04,
non-violent juveniles in Arizona are
more likely than violent juveniles to
return to prison within three years of
their release.
The average time
served by non-violent juvenile
offenders in Arizona is 32 months,
twice as long as the national average.
The study also found that once
released more than one in four
nonviolent juveniles will commit a
violent crime.
FL - A Florida Department of
Corrections probation officer in
Bradenton, R. Steven Quesenbury,
60, was arrested and charged with
raping and fondling a child under the
age of 12 on August 27,2004.
FL - At least 200 employees have

been hired at juvenile justice
facilities In Florida in recent years
after being fired from similar jobs for
violence,
misconduct
or
incompetence, according to· a recent
report in The Palm Beach Post. The
report was the result of a yearlong
review of records from the state and
private contractors. State officials
claim they have tightened hiring
st8ndards.
FL - In Nov. '04 the state agreed to
pay $1.45 million to settle a lawsuit
filed by the motlter of a teenager who
died from a burst appendix in a state
juvenile facility. Miami Children's
Hospital also agreed to settle but
didn't disclose the financial terms. It
was under contract to provide nurses
at the facility. Cherry Williams said
her son, Omar Paisley, 17, suffered
cruel and unusual punishment when
his pleas for help were ignored for
three days before he died in June
2003. His death prompted reforms in
the Department of Juvenile Justice
14

and lost jobs for almost two-dozen
employees. The nurses have been
charged with manslaughter and thirddegree murder.
FL - Bowing to continued and
increasing criticism of the state's
refusal to automatically restore exfelons' civil rights and a huge
backlog of applications to have rights
restored, on Dec. 9, 2004, Gov. Bush
and the Cabinet approved new rules
they say will make it faster and
easier for some felons to regain their
civil rights. Florida is only one of
seven states that does not
automatically restore civil rights to
felons once they complete their
sentence, instead, to have rights
restored ex-felons must apply for
demency to the governor and cabinet
sitting as the Clemency Commission,
a process that can take years.
Currently Florida has over 500,000
people who have lost their civil
rights, more than any other state.
There is currently a backlog of about
4,000
clemency
applications
pending, but the Commission only
, considers about 200 applications a
I year.
The backlog is expected to
increase where the s,tate recently lost
a legal case and is now required to
provide more assistance to felons to
apply for rights restoration when
they are released from prison.
Critics, including the ACLU, say the
new rules don't go far enough and
that civil rights, including the right to
vote, should automatically be
restored once, a person completes
their sentence. Gov. Bush said he
will ask the Legislature for more
money this year so the Parole
Commission,
which
conducts
clemency investigations, can hire
more people. Bush says that will
help speed up the process and reduce
the backlog.

FL - The Florida Department of
Corrections
angered
judges,
prosecutors and defense attorneys in
Pinellas County in Dec. '04 when the
DOC pulled probation officers out of
courtrooms where they have been
available for years to help judges
decide the fate of probation violators.
Responding to two high-profile
murder cases in 2004, linked to men
who some say should have been in
jail for violating parole; the DOC has
instituted a zero-tolerance policy in
which all violations result in arrest
DOC officials said it had to pull
probation officers out of the
courtrooms because they are needed
in the field to help supervise the
150,000 people on probation
statewide. Officers have also been
pulled from courtrooms in Orlando,
Jacksonville, Tallahassee and Ft.
Myers.
Other bay counties,
including Hillsborough, will follow
Pinellas, DOC officials say. Critics
say the DOC, by arresting all
violators, is just trying to insulate
itself from more bad press and let
judges take all the heat if they release
a parole violator after the DOC has
them arrested. Since the DOC's
zero-tolerance policy has started,
public defenders report that the
number of parole violation cases
assigned to their offices have tripled,
and many of the violations are
absurd In one case a probationer
was violated because his roommate
had a dog that wasn't licensed.
County jails are being overwhelmed
with the probation violation arrests,
several sheriffs have said

GA - During Dec. '04 the Georgia
Department
of
Corrections
announced that it is cutting the daily
amount of calories fed to female
prisoners by about 20 percent to·
2,472. The National Academy of
Science recommends 2,200 calories
per day for teen-age girls and active

Florida Prison Legal Perspectives
women. The new policy wont effect
male prisoners' diets, who will still
get about 3,000 calories a day.
IN - On Jan. 5, 2005, Gov.-elect
Mitch Daniels named a prison
official from Kentucky to head
Indiana's Department of Corrections.
J.
David
Donahue, . deputy
commissioner of the Kentucky DOC.
is the first person from outside the
state' that Daniels has appointed to
head an Indiana agency.

KY
The Kentucky prison
population has exploded 600 percent
since 1970 and will continue
growing because of "irrational"
sentences enacted by lawmakers.
claims a report released in Nov. '04.
U of K professor of law Robert
Lawson, who wrote Kentucky's
penal code, says the state budget for
incarcerating prisoners has risen
from $7 million to more than $300
million since 1970 and is threatening
to bar1J?'upt the system.
VA - Disbarred attorney Thomas
Smolka, 57, was sentenced to six
years in federal prison on Sept. 10.
2004. Smolka, who had formerly
been tried and acquitted of
murdering his wife in Florida, was
convicted of mail fraud charges for
defrauding prisoners and their
families out of money for legal work
he never performed. Smolka still'
faces mail and bank fraud charges in
Oregon, where he went after jumping
bail and fleeing the charges in
Virginia. Oregon prosecutors charge
that Smolka had falsely claimed he
had been sexually abuse by a
Catholic priest while growing up in
Portland. Smolka was also ordered
to pay his victims $130.000 in
resUtution.
u.s. District Judge
Robert Payne, who sentenced
Smolka, told him, "You are an
embarrassment to the profession of
law."

VT - Beginning Feb. I, 2005,
private company Prison Health
Services will take over provision of
health care to Vermont state
prisoners. The company beat out
several other private medical.
companies with its $26 million bid
for the three-year contract. .The
Tennessee-based
firm
provides
medical services to about 235,000
prisoners nationwide. It has been the
subject of more than 1.000 prisoner
lawsuits and complaints around the
country, but a sPokesman for the
firm, Lawrence Pomeroy, said PHS
is sued less often than its
competitors.
The company will
replace
Correctional
Medical
Services, another private medical
contractor, whose contract expires in
January. ·CMS had been criticized
for billing the state for services that
were never provided. Maine recently
refused to renew its contract with
PHS saying the company has
"performance problems." Prisoner
advocates in Vermont say the state
should scrap private companies
altogether and use state employees to
provide health care to prisoners.
WV - The West Virginia state prison
population more than doubled
between 1994 - 2004, from 1.962 to
3,942. The Legislature during that
period had increased sentences for a
variety ofcrimes. 0

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15

Florida 'Prison Legal Penpective8,

The following are summaries ofrecent state andfederal cases that may be usefUl to or have a significant impact on Florida prisoners.
Readers should always read the fUll opinion as published in the Florida Law Weeldy (Fla. L. Weekly); Florida Law Weeldy Federal
(Fla. L. Weeldy Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F. 3d); ,or the
Federal Supplement 2d (F.Supp. 2d), siJ:zce these summaries arefor general information only.

u.s. SUPREME COURT

u.s. COURT OF APPEAL

Florida v. Nixon, 18 Fla.L.Weekly

Day v. Crosby, 18 Fla.L.Weekly Fed.
C54 (111!l Cir. 11129/04)
In this case the III!l Circuit
Court
granted
Patrick
Day's
to
certificate of appealability
determine whether the district court
erred in addressing the timeliness of
his habeas corpus petition, filed
pursuant to 28 U.S.C. section 2254,
after the appellee had concede that
the petition was timely.
Day had filed his petition
beyond the on~year time limit as
required under the Antiterrorisniand
Act
Effective
Death
Penalty
(AEDPA).
A magistrate judge
directed an order to the state to make
arguments regarding potential failure
to exJulust state remedies or
procedural default. The order did not
mention the statue of limitations,
although it noted the magistrate
judge's acknowledgment of Day's
petition being "in proper form." The
state answered the order erroneously
asserting that it agreed the petition
was timely filed. The district court
then sua sponte ordered Day to show
cause why his petition should not be
dismissed as untimely.
,
After. reviewing
Day's
argumen~ to the show cause order,
the magistrate judge recommended
dismissal of his petition because
Day's arguments did not meet the
standard for equitable tolling under
section 2244. In his objection to the
report and recommendation, Day
argued for the first time that the
concession of timeliness by the state
was di$positive.

Fed. S33 (1l1l3/04)
The main concern in this
case is where a defense counsel .
concedes the guilt of a defendant for
the commission of murder at the guilt
phase of a trial, and to concentrate
the defense on establishing cause for
sparing the defendant's life at the
penalty phase.
All without the'
consent ofthe defendant.
The Florida Supreme Court
held that any concession of that
order, made without the defendant's
express consent, however gruesome
the crime and despite the strength of
the evidence of guilt, automatically
ranks as prejudicial ineffective
assistance of counsel necessitating a
new trial.
It was decided that the
Florida Supreme Court erred in
applying a presumption of deficient
performance,
as
well as
a
The
presumption of prejudice.
Untied States Supreme Court held
that it has instructed that latter
presumption is reserved for cases in
which counsel fails meaningfully to
oppose the prosecution's case. ,A
presumption of prejudice, it further
explained, is not in order based
solely on a defendant's failure to
provide express consent to a
defendable strategy counsel has'
adequately
disclosed
to
and
discussed with the defendant.
The Florida Supreme Court's
judgment was reversed based on the
findings and the case was remanded
for further proceedings consistent
with, the United States Supreme
Court's opinion.

16

The Eleventh Circuit Court
cited Jackson v. Secretary for the
Department of Correction where it
had held that after the state has filed
a response to a habeas petition that
does not raise the statute of
limitations as an affirmative defens~
a district court may dismiss a habeas
petition sua sponte because' the
limitations period of one year, under
AEDPA, has expired.
Day argued that both the
Sixth and Ninth Circuits had reached
a contrary result, but the Eleventh
Circuit held that Jackson is binding
and that it required it to part with the
Sixth and Ninth Circuits on the issue.
The
Eleventh
Circuit '
explained that Day's sua sponte
dismissal. differs significantly from
other sua sponte rulings that the
United States Supreme Court has
criticized. In Calderon v. Thompson.
the Supreme Court was unanimous
as to one point: it refused to condone
the efforts of a court to'recall its own
mandate as a mechanism to frustrate
the requirements Congress imposed
under AEDPA. The eleventh Circuit
decided its decision fulfilled the
purposes of AEDPA by enforcing itS
limitation period.
Therefore, a concession of
timeliness by the state that is patently
erroneous does not compromise the
authority of a district court sua
sponte to dismiss a habeas petition as
untimely, under AEDPA. Thus, the

Florida Prison Legal Penpectives
Eleventh Circuit Court affirmed the
judgment of the district court in
Day's case.
Benning
v.
Georgia,
18
Fls.L.Weekly Fed. C61 (llib Cir.
1212104)

Ralph Harrison BeMing is a
prisoner of the Georgia State prison
system. He is a Torah observant Jew
and is compelled by his system of
religious belief to eat only kosher
foods. wear a yarmulke at all times.
to observe specific fioly days, and
perform specific rituals. Benning
requested from numerous prison
officials to be provided with a kosher
diet and be permitted to wear a
yarmulke. His requests was denied.
Subsequently, BeMing filed a prison
grievance in which he specifically
asserted his rights under the
Religious
Land
Use
and
Institutionalized
Persons
Act
(RLUIPA) (The RLUIPA requires
state prisons that receive federal
funds to refrain from burdening the
religio~ exercise of prisoners. See
42 U.S.C. section 2000cc-1).
Upon BeMing arguing his
claims in a suit, Georgia moved to
dismiss and argued that section 3 of
RLUIPA, 42 U.S.C. section 2000cc1, exceeds the authority of congress
under the Spending and Commerce
Clauses. and violates the Tenth
Amendment
and
Establishment
Clause.
The. United States
intervened
to
defend
the
constitutionality of RLUIPA.
The district court dismissed
Benning's claims against the
individual Defendants, but concluded
that RLUJPA does not violate the
Establishment Clause and denied the
motion to dismiss with regard to
Georgia and the DOC. The district
court certified its denial of the
motion to dismiss for immediate
appeal, under Federal Rule of Civil
Procedure S4(b), and alternatively
certified it's ruling for interlocutory
appeal under 28 U.S.C. section
I292(b). The 11 1b Circuit granted the
petition by Georgia for permission to
appeal under section I292(b).

After a Iet)gthy discussion,
the IIIb Circuit found that because
Congress properly exercised its
spending power by unambiguously
conditioning the use of federal funds
for state prisons on the related
accommodation· of the religious
exercise of prisoners and that
accommodation of does not endorse
a religious viewpoint, it concluded
that section 3 of RLUIPA, 42 U.S.C.
section 2000cc-l. was validly
enacted under the Spending Clause
and does not violate either the
Establishment Clause or the Tenth
Amendment.
Therefo~
the
judgment of the district court was
affumed.

u.s. DISTRICT COURTS
Prison Legal News v. Crosby, 18
Fla.L.Weekly Fed. D S3 (M.D. Fla.
11116/04)
The Prison Legal News
(PLN) filed, pursuant to 42 U.S.C.
section 1983,·. a Complaint for
Declaratory and Injunctive Relief
'against James v. Crosby, in his
official capacity as Secretary, Florida
Department of Corrections, et aI.,
(Defendants). In this action, PLN
claimed that the Defendants have
violated PLN's First Amendment and
due process rights.
The background of this case
is the Defendants were refusing to
allow delivery of PLN's journal,
which the Defendants claimed
violated the Florida Administrative
Code (FAC). They asserted that this
was mainly based on the journal
containing
advertisements
for
telephone companies other than those
assigned to the prison, and it violated
rules concerning the security of
institutional telephone systems.
PLN sought to forbid the
Defendants from barring the receipt
of its journal by .inmate subscribers
and further sought to forbid the
Defendants. from penalizing inmates
who receive compensation for
writing articles for the publication.
Because of the prohibition of

compensation for writing articles is
mandated by the FAC, PLN also
sought·
declaratory
judgment
asserting that those rules of the FAC
are unconstitutional. It argued that
refusal to allow the compensation
chills the journal's ability to receive
articles
for
publication
and
constitutes a prior restraint on .free
speech.
In their Motion for Summary
Judgment the Defendants claimed
PLN's action was moot because of
changes made in the prison's policies
and practices.
However, PLN
countered the argument by asserting
that the prison policy has been
changed several times in the past,
and that the Defendants' continued
"flip-flop" of their policies at will
means its claims with regard to tho
distribution of the PLN journal
within Florida prisons are not moot.
The United States Middle
District Court of Florida stressed on
the notation where PLN pointed out
the "flip-flop" of the Defendant's
policy stance at least three times in
the past, and that they conceivably
remain free to once again change
their policy at the conclusion of the
lawsuit.
After it reviewed and
discussed the standard in regards to
summary judgment and PLN's laying
out of the chain of events,
demonstrating
the
Defendants'
[flipped-flopped]
policies.
the
Middle District Court agreed the
claims of PLN were not moot. It
further opined that the case
resembled other cases where. the
courts have held that voluntary
discontinuation of allegedly illegal
conduct will not render a case moot
if the defendants can simply return to
their old policies.
Because of its findings and
regardless that the Defendants
claimed they have completely and
irrevocably done away with the
effects of the alleged violations, the
Middle
District
denied
the
Def~ts' moooo fur s~
judgment.
It found that the.
Defendants did not meet their burden
17

Florida Prison Legal Perspectives
or'establishingthat PLWs claims are
moot.

FLORIDA SUPREME COURT
Thompson v. State, 29 Fla.L.Weekly
S667 (Fla. 11/12104)
.
Paul Thompson pled guilty
to . a felony charge of knowingly
driving with a license that had been
suspended or revoked (felony
OWLS) under section 322.34(2){c),
Florida' Statutes (Supp. 1998)
(amended statute).
Subsequently,
pursuant to Rule 3.850, Florida Rules
of Criminal Procedure, Thompson
filed a motion for postconviction
relief in the trial court. He argued
that it was improper to use his two
prior
. driving-while-Iicensesuspended (OWLS) convictions to
enhance his third under the amended
statute to a felony OWLS.
. In his claim, Thompson used
Buss v. State, 771 So.2d 591 (Fla. III
DCA 2000), as authority for his
argument. Like Thompson, Huss
was convicted of felony OWLS
under the amended statute by the use
of' prior OWLS convictions that
occurred before the effective date
(October I, 1997) of the amended
statute.
In Buss, the First District
Court of Appeal held that because
Huss's prior convictions occurred
before the statutory amendment,
those convictions could not be used
under the amended statute for
purposes of enhancement to felony
OWLS.
. .. The trial court denied
Thompson's claim and subsequently,
the Fifth District' Court of Appeal
affirmed the denial that had held that
Huss's case constituted a change in
decisional law that should not be
retroactively applied.
Thompson
then sought and was granted review
in the Florida Supreme Court based
on the conflict that was between the
First and Fifth Districts.
It was noted by the Florida
Supreme Court where the First
District explained in a prior case,
18

Stutts v. State, that its decision in
Buss did not ctjange the law, but
merely stated the: plain meaning of
the amended statute. At any rate, it
. was found that the Fifth District was
correct in that the Buss decision
should not be retr~ctively applied.
However, it was further found that
the Fifth District should not have
. ended its analy,sis. ()f Thompson's
claim with just the question of
retroactivity. It should also have
been evaluated in light of the due
process principles set forth in Fiore
v. White, 531 U.S.' 225 (2001), and
also brought out. in Bunkley v.
Florida, 538 U.S. 835 (2003). (The
United States Supreme Court had·
remanded
Bunkley's case
in
explanation that the question was not
just one of retroadivity, the Florida
Supreme Court' was instructed to
resolve the due process question of
whether all ttie elements of the crime
were satisfied.)
In 1997 the Legislature
amended section 322.34, Florida
Statutes (Supp. 1998), by adding
language that the driving while
license was canceled, suspended, or'
revoked must be done knowingly of
such cancellation, suspension, or
revocation.
. Thus, adding a
knowledge element to the crime.
Otherwise, it was provided in the
amended statute that a person
without knowledge of such, is merely
guilty of a moving violation.
Prior to the 1997 amended
version, the statute did not contain a
knowledge element. Therefore, the
State in Thompson's case could not
demonstrate all of the elements
needed to apply the enhancement
under the amended statute. The
Legislature could have, but did not
make a provision in the 1997 law for
enhancement based on convictions
under the pre-1997 statute.
In Buss, th~ First District
explained . that OWLS convictions
under the previous statute, which did
not contain a knowledge element, do
not qualify as prior convictions under
the amended statute, which contains

knowledge as an element of the
OWLS offense.
As the United States
Supreme Court explained in Fiore,
"the Due Process Clause of the
Fourteenth Amendment forbids a'
State to convict a person of a crime
without proving the 'elemen~ of :tJmt,-i
crime beyond a reasonable doubt."
Thus, Thompson's conviction failed
to satisfy federal constitutional due
proCess and the Florida Supreme
Court ruled that his conviction must
be reversed. It further quashed the
Fifth District's decision in Thompson
and approved the First District's in
Buss.
Thompson's case was
remanded for proceedings consistent
with that of the ophlion given by the
Florida Supreme Court.

Davis v. State, 29 Fla.L.Weekly S
672 (Fla. 11/18/04)
Travis Terrell Davis's case
regardee;t . a conflicting opinion of
whether . an extension of time
pursuant to Rule 3.050, Florida Rules
of Criminal Procedure, applies to the
60-day time period a trial court has
to rule on a motion pursuant to Rule
3.800{b){2).
The Fifth District Court of
Appeals opined that no extensions of
time were authorized under Rule
3.800(b). It considered the general
provisions of Rule 3.050 to conflict
with the specific provisions of the
60-days
provided
by . Rule
3.800{b){I){B).
Contrary to the Fifth
District's decision in Davis's case, .
the Second District in McGuire v.
State, 779 So.2d 571 (Fla. 2d DCA
20Ql), held that Rule 3.050
authorizes the trial court to extend
the 60-day time period of Rule
3.800{b), if the trial court acts within
the 60-days to extend the· time and
there is a showing of good cause.
Although both parties in
Davis's case urged the Fifth District
to allow the extension showing good
cause, it would not agree to allow the
extension.
Thus, based on the
conflict, review was granted in the

Florida Prison Legal Perspedives
Florida Supreme Court to resolve the
question.
After a showing of where it
had allowed extensions of time under
Rule 3.050 for both 3.800 and 3.850
motions in its own prior case rulings,
the Florida Supreme Court quashed
the Fifth District's decision in
oaVf~'s case and approved the
Second District's in its analysis.

until an attorney is present. (See:
Michigan v. Mosley, 423 U.S. 96
(1975).) The Supreme Court did not
require counsel's presence for all
further communications, only for the
interrogations.
. Interrogation under Miranda
was defined in Rhode Island v. Innis
in that it refers to a measure of
compulsion above and beyond that
inherent in cQstooy itself. It also
"refers not only - to express
RJ.L. v. State, 29 Fla.L.Weekly
S673 (l1l18/04)
questioning, but to any words or
This case dealt with conflicts
actions on the part of the police
(other than those normally attendant
within the District Courts of Appeals
regarding
expungement
of . to arrest and custody) that the police
should know are reasOnably likely to
nonjudicial criminal history record
when fully pardoned of offenses.
elicit an incriminating response from
the suspect.....
It was found that an
individual
who
received
a
In Ari:ona v. Roberson the
Supreme
Court has distinguished
gubernatorial pardon is not entitled
between
the
Sixth Amendment right
to a certificate of eligibility for
to counsel and the Fifth Amendment
records expunction pursuant to
section 943.0585(2) of the Florida
right against self-incrimination. The
former
arises from the fact that the
Statutes, as a pardon does not have
suspect
has been formally charged
the effect of eliminating guilt or the
with
a
particular
crime and thus is
fact of conviction.
A pardoned
facing
a
state
apparatus
that has been
individual cannot satisfY the
geared up to prosecute him. The
constitutional
requirements
of
latter is protected by the prophylaxis
section 943.0585(2), because like
of having an attorney present to
other convicted individuals, a
pardonee cannot maintain that he has
counteract the inherent pressures of
custodial interrogation, which arise
not be adjudicated guilty of, or
from the fact of such interrogation
adjudicated
delinquent
for
and exist regardless of the number of
committing any acts stemming from
crimes under investigation or
the arrest or alleged criminal activity
whether those crimes have resulted
to whlch the petition to expunge
in formal charges.
pertains.
The scope of the right to
counsel under Miranda is more
Everett v. State, 29 Fla.L.Weekly
S714 (Fla. 11124/04)
limited than under the Sixth
Amendment. The invocation of the
The main question involved
in this case is whether a law
right to counsel under Miranda does
enforcement officer's request for a
not
require
the
immediate
appointment of an attorney because
consent to search (provide DNA
the
right
extends
only
to
biological samples in this case) from,
interrogation.
In Roberson the
or service of an arrest warrant on, a
Supreme Court held that once a
defendant in custody who has
suspect has invoked the right to
invoked the right to counsel violates
counsel under Miranda, police are
the Fifth Amendment.
not forbidden all contact with that
The United States Supreme
defendant in custody; in fact, it
Court (Supreme Court) in Miranda v.
expressly exempted from the
A,./:ona has firmly established that
definition of "interrogation" routine
once a person has invoked his or her
police contact normally attendant to
rights to remain silent until counsel is
arrest and custody.
present the Interrogation must cease
,

It was found that the serving
of an arrest warrant is routine police
procedure. It does not require a
response from a suspect; nor can it
be reasonably expected to elicit an
incriminating response. Neither can
an officer's request to consent to
provide DNA biological samples or
to search be found to be reasonably
'likely to elicit an incriminating
response.
It was held in Holt v. United
States back in 1910 that tho
"prohibition of compelling a man in
a criminal- court to be witness against
himself is a prohibition of the use of
physical or moral compulsion to
extort communications from him, not
an exclusion of his body as evidence
when it may be materia)." It was
also noted that in Schmerber v.
California the Supreme Court held
the Fifth Amendment privilege
protects an accused only from being
compelled to testifY against himself,
or otherwise provide the state with
evidence of a testimonial or
communicative nature, and that the
withdrawal of blood and the use of
that analysis in question does not
involve compulsion. The right to
silence only applies to testimonial or
\ communicative acts ofa suspect.
Accordingly, the question is
answered by the Florida Supreme
Court that neither the service of an
arrest warrant nor the request to
consent to providing physical
evidence constitutes a word or action
that the authorities should know is
"reasonably likely to elicit an
incriminating response from the ..
suspect."
Thus, the Fifth'. .
Amendment is not violated.

Nesbitl v. State, 29 Fla.L.Weekly
S772 (Fla. 12/9/04)
This case presented a
controversy in whether a conviction
for a lesser offense not sufficiently
charged in the charging document is
fundamental error.
On review, the Florida
Supreme
Court
made
its
determination by looking to a prior
case, Ray v. State, 403 So.2d 956
19

Florida Prison Legal Perspectives
(Fla. 1981 ), where it held that the
fundamental error doctrine should be
applied only in rare cases where a
.jurisdictional error appears or where
the interests of justice present a
compelling
demand
for
its.
.application. ThuS, after its analysis
of the controversy,· the Supreme
Court held that it is not fundamental
error to convict a defendant under an
erroneous lesser included offense
when he had an opportunity to object
and did not do so if:
I) the
.. improperly charged offense is lesser
In degree and penalty than the main
offense. or 2) defense counsel
requested the improper charge or
other affirmative action.

Williams v. State, 29 Fla.L.Weekly
S773 (Fla. 1219/04)
In this case the Florida
Supreme Court was presented with
the question of whether the
procedures in Anders v. California,
386 U.S. 738 (1967), that are
applicable to criminal cases are to be
followed in cases involving appeals
from Jimmy Ryce Act commitment
orders.
The United States Supreme
Court set forth procedures in Anders
that are to be .used by appointed
counsel in criminal cases when
counsel cannot in good faith
ascertain any meritorious issue to
present on appeal. After the Florida
Supreme Court reviewed thOse
procedures, it noted a prior decision
it made in the applicability of the
Anders procedures to involuntary
ciyil commitment orders under
t~orida's. Baker Act in Pullen v.
State, 802 So.2d 1113 (Fla. 2001).
In Pullen it was decided that
while Anders involved an indigent
criminal defendant, the United States
Supreme Court expreSsed an·
overriding concern for substantial
equality and fair process in the
appellate process. It was noted that
an individual who faces involuntary
commitment to a mental health
facility under the Baker Act has a
Uberty
interest
at
stake.
Constitutional due process required

20

that a person in such a case has a
right to the effective assistance of
counsel at all significant stages of the
commitment process.
Regarding .the
liberty
interests at stake in the Baker Act
commitment, it is limited by statute .
to only six months, whereas under
the Jimmy Ryce Act,. the
confinement is for an indeterminate
and potentially indefinite .period of
time.
Like the Baker Act, the
involuntary civil commitment under
the Jimmy Ryce Act presents a
massive curtailment of liberty
interests where constitutional due
process
would
dictate
the
requirement
of the effective
assistance of counsel in all its
significant process stages.
By following its decision in
Pullen regarding the Baker Act, the .
Florida Supreme Court held that the
policies and interests served by the
Anders procedUres in criminal
proceedings are also present in
involuntary
civil
commitment
proceedings under the Jimmy Ryce
Act. It concluded by answering the
question in the affirmative; Anders
procedures are applicable in cases
involving appeals from Jimmy Ryce
Act commitment orders.

Slale v. White, 29 Fla.L.Weekly
S821 (Fla. 12123/04)
This case regarded the
question like that that was also
brought out in Burlon v. Slate (as
published in this section under the
District Court of Appeals Notable
Cases: "Whether an individual can
be committed under the Jimmy Ryce
Act absent a jury instruction that the
state must prove the individual has
serious difficulty in controlling his or
her dangerous behavior. tt)
To answer the question, the
Florida Supreme Court looked to a
United States Supreme Court case.
Kansas v. Crane, noting that Kansas'
Sexually Violent Predator Act
procedures for civil commitment are
liken to that of Florida's Jimmy Ryce
Act.

Civil commitment under
Florida's Jimmy Ryce Act requires
that a factfinder must determine by
clear and convincing evidence that
an individual has been convicted of
an enumerated sexually violent
offense and suffers from a mental
abnormality or personality dismder
that makes the individual likely to
engage in' acts of sexual violence if
not confined in a secure facility for
long-term control and treatment.
It found the U~ted States
Supreme Court's decision in Crane
did not impose, as a constitutionally
required
additional
element
necessary to commit a person under
the Jimmy Ryce Act, the requirement
that the individual have serious
difficulty controlling his or her
behavior.
A jury need not be
instructed on that element. It. held
that the standard jury instructions
accurately reflect the requirements of
the Ryce.Act, and that the Ryce Act
sufficiently limits civil commitment
to dangerous sexual offenders to
comport with substantive due process
requirements.
By specifying the nature of
mental abnormality and requiring
that
the
mental
abnormality
predispose an individual to commit
sexually violent offenses and that he
or she be likely to engage in acts of
sexual violence. the Florida Supreme
Court decided the Ryce Act
adequately narrows th~ class of
persons eligible for confinement to
those who are unable to control their
dangerousness. Thus, the jury need
not be instructed that the individual
must
have
serious
difficulty
controlling behavior.

Hale v. Stale, 30 Fla.L.Weekly S11
(Fla. 12/23/04)
The main point that was
brought out in this case is William
Hale's argument in that the Jimmy
Ryce Act does not apply to him
because when the civil commitment
petition was filed in his case he was
not in custody for a sexually violent
offense. . Hale cited in his argument

Florida Prison Legal Penpectives
section 394.925, Florida Statutes
(1999).
First, the Florida Supreme
Court clarified that Hale's case is
controlled by the original version of
"the Act contained in sections 916.31.49, Florida Statutes (Supp. 1998),
not the 1999 version. The amended
,;;wrsion, sections' 394.910-.931,
Florida Statutes (1999), did not
become effective until May 26, 1999.
The State filed the civil commitment
petition against Hale on April 5,
1999.
In section 916.45, Florida
Statutes (Supp. 1998), it provides:
"Applicability of act-Sections
916.31-.49 apply to all persons

currently in custody who have been
convicted of a sexually violent
offense, as that term is defined in
sec. 916.32(8), as well as to all
persons convicted of a sexually
violent offense in the future." Also
in the defi~tion of a sexually violent
offense it was found in sec.
916.32(8)(g), "Any conviction for a
felony offense in effect at any time
before October I, 1998, which is
comparable to a sexually violent
offense under paragraphs (a)-(f) or
any federal conviction or conviction
in another state for a felony offense
"that in this state would be a sexually
violent offense;... II "
"The Court, in expressly
pointing out the above provisions,
found that the statute clearly says
nothing about whether the person
must be currently incarcerated for
that type of offense. It does not state
that it applies to all persons currently
in custody for a sexually violent
offense· and it does not otherwise link
the current incarceration to the
sexually violent offense.
Therefore, it was decided
that reading sections 916.45 and
916.32(8)(g) together, the Act
applies to all persons who are
currently incarcerated and who at "

some point in the past have been
convicted of a sexually violent
offense.
.
In the conclusion of its
analysis, the Court held that an

individual does not need to be in
custody for a sexually violent crime
at the time the civil commitment
petition is filed. In other words,
quoting Judge Pariente in her
dissenting opinion, "As this case
illustrates, the net cast by the Ryce
Act encompasses an individual
whose crime of sexual violence is far
in the past. ..and whose most recent
incarceration subjecting' him to civil
commitment was for an offense
unrelated to sexual violence. II .
[Note: The wonder of this case, on
its novel approach to crime,
punishment, and public safety, is
where will it lead. How can it be
known whether the legislature will
continue to view only sexual
offenders as a special and unique
class of criminals? If prosecutors are
able to find mental health
professionals that are willing to
testifY that people who commit
repetitive assaults of a" non-sexual
nature have a mental abnormality
predisposing them to such violent
behavior, will the legislature pass
laws to .keep them incarcerated
beyond their criminal sentences by
the device of civil commitment?
How about perpetrators of multiple
domestic violence? Chronic drunk
drivers?
Violent drug offenders?
What are the limits of this end run
around the normal" criminal justice
process? -as]

DISTRICT

COURTS

OF

APPEAL
Woodard v. State, 29 Fla.L.Weekly
02348 (4th DCA 10120/04)
With regard to information
or document requests addressed to a
custodian\of public records (clerk of
court, state attorney, etc.), this case
demonstrated the importance of
retaining
copies
of
dated
correspondence of such requests.
The reason for the retention
. of such correspondence is because
the need seeking to compel for action
may arise when a custodian of public

records fails to execute its duty to
respond to a request.
It was stressed by the Fourth
District Court of Appeal that when
the need to compel compliance of the
request becomes apparent, copies of
the dated correspondence sent ",usl
be attached to a writ of mandamus
seeking to compel compliance with a
public records request (pursuant to
either section 119.07, Florida
Statutes, or Florida Rule of Judicial
Administration 2.05 I).
The original request for. the
public records must state the identity
of the documentation needed with
sufficient specificity to permit the
custodian to identifY the record and
forward it or, if any, cost information
involved to obtain the records
sought.
[Note:
Although this case was
regarding public records requests, it
should be eminent that it is important
for one to retain dated copies of any
and all types of legal or agency
correspondence because, down the
road, one never knows if the need
will arise to show proof of its
existence. - as]

Burton v.. State, 29 FJa.L.Weekly
02365 (2d DCA 10122104)
The main issue involved in
this case is where Gary Burton
argued that the jury was not properly
instructed on an essential element of
volitional control regarding Burton's
civil commitment as a sexually
violent predator under the Jimmy
Ryce Act He claimed that the jury
should have been required to find
that he had a serious difficulty in
controlling his dangerous behavior.
Although the Second District
Court of Appeal found that Burton's
issue was not preserved for appeal it
opined that the issue did not rise to
the level of a fundamental error, the
appellate court certified a question as
one of great public importance
regarding the issue:
"May an individual be
committed under the Jimmy Ryce
Act in the absence of a jury
21

Florida Prison Legal Perspectives
instruction that the state must prove
that the· individual has serious
difficulty in controlling his or her
. dangerous behavior?"

Love v. State, 29 Fla.L.Weekly
02487 (Sib DCA 11/5/04)
In this case the Fifth District
Court of Appeals certified the
question,
"Why
would
the
Legislature allow an order of
probation withholding adjudication
to be a conviction which can qualifY
a defendant for habitualiz8tion, but
not consider the order to be a
sentence when determining whether
the
prior
convictions
were
sequential?"
The question was brought .
because the Fifth District had
concluded that the purpose of the
habitual
offender
statutory
requirement is met by construing a
probation order to be a sentence
within the meaning of the statute.
There are numerous cases
that has held probation is not a
sentence. More on point to the issue
explained in the Fifth District, but
decided in contrary, is Richardson v.
State, where the Fourth 'District
modified its opinion .at 29
Fla.L.Weekly D215 (Fla. 4th DCA
1/14/04). The court in Richardson
reasoned . that a sentence and
probation are distinct concepts and
~phasized that when a defendant is
placed on probation, the court stays
and withholds the imposition of a
sentence. It found that a defendant
placed on probation had never been
sentenced, so .that when the
defendant later
violated that
probation and committed a new
offense, the defendant was being
sentenced for the first time in the
probation violation case. and that
conviction could not constitute a
sequential conviction to the new
offense.
.
The Fifth District opined that
it "believed the interpretation applied
by the Fourth District in Richardson
is hyper-technical and illogical."
Thus, the certified question.
Z2

Hall v. State, 29 Fla.L.Weekly
D2621 (2d DCA 11119/04)
Almost 7 years after his
conviction and sentence became
final, Marty J. Hall filed a rule 3.850
motion. This was six days after he
found that he was not receiving the
gain time credits that his defense
counsel assured him that he would
receive upon pleaing guilty to his
crimes.
Hall maintained in his
motion that he would not have
accepted the state's plea offer had he
known that he would not receive gain
time credits. The trial court denied
the motion and Hall appealed the
decision.
On appeal, the' Second
District Court of Appeal cited a.prior
case where it was confronted with a
strikingly ,similar situation as in
Hall's, Spradley v. State, 868 So.2d
632 (Fla. 2d DGA 2004). The trial
court had denied Spradley's rule
3.850 motion as untimely because it
fell outside the two-year window
periOd from when his conviction and
sentence became fmal. The Second
District however found that Spradley
could not have known about the
Department of Corrections' (DOC)
forfeiture of gain time. Like Hall,
Spradley only discovered the
forfeiture upon receiving a response
from DOC after filing administrative
grievances. Once informed of the
forfeiture by the DOC, Hall, like
Spradley had two-years from that
time to file a rule 3.850 motion.
Based on its prior ruling in
Spradley, the Second District
reversed the lower court's denial of
Hall's. motion and remanded with
instructions for the trial court to rule
on the merits of the motion.
Bu"ows v. State, 29 Fla.L.Weekly
D2619 (2= DCA 11119/04)
In regards to the Blakely v.
Washington and Apprendi v. New
Jersey federal cases, the Second
District Court of Appeals in this case
has expressed its opinion.
The Second District cited its
prior, Gisi v. State, where it held that
Apprendi
does
not
apply

retroactively to sentences that were
final prior to its issuance. It went on
to explain that all its sister courts
have come to the same conclusion,
and cited numerous other case in
different district courts in the State of
Florida that has ruled the same.
In regards to the Blakely case
the Second District found that on the
same day that the United States
Supreme Court issued the Blakely
opinion, the Court also released its
opinion in Schriro v. Su~merlln, 124
S.Ct 2519 (2004). Schriro held that
Ring v. Arizona, which extended the
application of Apprendl to death
penalty cases, was not to be applied
retroactively to cases on collateral
review.
The Eleventh Circuit Court
of Appeals for the United States. in
its opinion in In Re Dean, 375 F.3d
1287 (11 th Cir. 2004), relied on
Schriro to conclude that the United
States Supreme Court has not made
Blakely retroactive to cases on
collateral review.
Recently the
Fourth District, in McBride v. State,
held that, like Apprendi. Blakely does
not apply retroactively to cases on
coUaterai review.
The Second
District Court of Appeals opined that
it agreed with the findings. - as

Wells v. Aramark Food Service, 29
Fla.L.Weekly D2649 (4th DCA
11/24/04)
Thomas Perry Wells, Jr.,
petitioned the Circuit Court of
Broward County, Florida, for a writ
of mandamus to order Aramark Food
Service Corporation to provide a
copy of the food service contract
between it and that Florida
Department of Corrections, pursuant
to the Florida Public Records Act.
The lower court dismissed the
petition on the ground that
mandamus does not lie against a
private corporation doing business
with the State.
On appeal, the Fourth
District Court of Appeal cited News
& Sun-Sentinel Co. v. Schwab, Twitty
& Hanser Architectural Group .Inc.
where the Florida Supreme Court

Florida Prison Legal Penpeetives
identified factors to consider in
determining whether a private
corporation is an "agency" subject to
Florida's Public Records Act. After
revie)Ving these factors, the Fourth
District concluded that the trial court
in Well's petition did not undertake
thei;required analysis to determine
whether Aramark is and "agency" as
used in Florida's Public Record Act,
which would subject it to compliance
with the statute. It was made clear
by the Supreme Court in News &
Sun-Sentinel Co. that the factors it
listed was not "all-inclusive," due to
the variety of circumstances that can
be presented. .
The denial of Well's petition
was reversed. and the case remanded
for further proceedings.

.

Beneby v. State, 29 Fla.L.Weekly
D2696 (411I DCA 12/1/04)
The Fourth District Court of
Appeals brought out a reminder in
this case for those that are calculating
their time to file a Rule 3.8S0
motion.
That is, the two-year
limitations period would not begin to
run in a case where the appellate
court has issued a mandate from a
direct appeal that orders a
resentencing until that order has been
complied with by the sentencing
court.
Cleveland v. State, 29 Fla.L.Weekly
D2712 (Sib DCA 1213/04)
This case brings out a
common type of pro se error when
one files a notice of supplemental
authority. However, in this case the
state made the error.
The State had moved for a
rehearing ,after the appellate court
reversed Paul Henry Cleveland's
judgment and sentence and remanded
for a new trial due to the issue
involved.
.On that issue, the State's
motion fot tehearing not only argued
other claims for the first time, but
also brought up a notice of
supplemental authority that did not
comply with Rule 9.22S, Fla. Rules
of Appellate Procedure. It did not

comply with the rule because it
contained new argument not
previously addressed in its answer
brief. Also, the new argument relied
on a Supreme Court case that had
been decided four years prior to the
State's filing of its answer brief.
"Notices of supplemental
authority may be filed with the courts
before a decision has been rendered
to call attention to decisions, rules,
statutes, or other authorities that are
significant to the issues raised and
that have been discovered after the
last brief served in the cause. The
notice may identify briefly the points
argued on appeal to which the
supplemental
authorities
are
pertinent. but shan not contain
argument...," as provided in Florida
Rule of Appellate Procedure 9.2SS.
The Fifth District in this case opined
that it appeared the State, through its
supplemental
authorities,
was
attempting to file an additional brief.
The Fifth District continued
however and regarded the motion for
rehearing itself,. filed pursuant to
Rule 9.330 where it provides, in part,
"A
motion
for
rehearing,
clarification, or certification may be
filed .within I S days of an order or
within such other time set by the
court. A motion for rehearing shall
state with particularity the points of
law or fact that, in the opinion of the
movant, the court has overlooked or
misapprehended in its decision, mlQ
shall not present issues not
previously
raised
in
the
proceeding..."
Cotterell v. State, 29 Fla.L.Weekly
D277S (Slh DCA 12/10/04)
In Stephen Cotterell's appeal
the Fifth District Court of Appeals
brought to light its "discomfort with
the fact that Florida Rule of Criminal
Procedure 3.8S0 requires a defendant
be told he or' she has 30 days in
which to appeal and 3.800 does not.
It is a discrepancy without a reason
and a trap for the unwary."
However, as it noted, the Florida
Supreme
Court ,adopted
an
amendment to Florida Rule of

Criminal Procedure. 3.800 to repair
another equally illogical discrepancy
between Rule 3.800(a) and Rule
3.8S0. See: In Re Amendments to
of Criminal
Florida
Rules
Procedures, 29 Fla.L.Weekly 8S68
(Fla. 1017/04).
The amendment authorizes
defendants under both rules to file
motions for rehearing, thereby tolling
the time to file an appeal. Prior to
the amendment, which became
effective January 1,2005, defendants
who filed motions for rehearing
under Rule 3.800(a) often lost their
rights to appeal and their notices of
appeal, filed after denial of their
motions
for
rehearing,
were
untimely.
The Fifth District concluded
this case with the opinion, "Perhaps
this remaining discrepancy should
also be addressed."
Larimore v. Florida Department of
Corrections, 29 Fla.L.Weekly 02787
(III DCA 12110/04)
In a petition for writ of
habeas corpus filed to a circuit court,
William Todd Larimore argued that
the Department of Corrections
(DOC) acted without statutory
authority when it forfeited previously
awarded
gain-time
following
revocation of the probationary
portion of his original split sentence,
and absent that unauthorized
forfeiture he was entitled to
immediate release. The circuit court
denied his petition and Larimore
sought and was granted certiorari
review in the First District Court Of.
Appeals.
. .
The background of this case
is Larimore pled in two separate
cases and each had an offense of a
second degree felony which were
punishable by up to 1S years in
prison.
The first offense was
committed in 1987, and the second
offense'was committed in 1990. In a
plea agreement using a single
sentencing guidelines scoresheet, the
court initially sentenced Larimore to
I S years prison for the 1987 offense,

23

Florida Prison Legal Penpectives
followed by a 5 year term of
probation for.the 1990 offense.
Through accumulation of
actual time served and gain time
Larimore was released after 7.25
years to begin his probationary
portion of the sentence. He violated
the terms of the probation and the
probation was revoked, sending him
back to prison. In accordance with
Tripp v. Slale, Larimore succeeded in
securing an award of credit for time
served for the 1987 offense against
the five year sentence imposed upon
revocation of probation with respect
to the 1990 offense. After that credit·
was applied however, DOC forfeited
all gain-time earned by Larimore,
relying on section 944.28( I), Florida
Statutes, and Eldridge v. Moore, 760
So.2d 888 (Fla. 2000).
The First District found that
since Larimore's crimes (as one unit
being on a single scoresheet)
occurred prior to the effective date of
the 1989 amendment to section
944.28, authorizing the forfeiture of
gain-time upon revocation of
probation, its decision in Tranquille
v. Slale, 828 So.2d 1034 (Fla. 151
DCA 2002), bars DOC from
applying that
amendment
in
calculating the Tripp crediL Because
of the results in Larimore receiving
15 years for credit towards his five
year sentence, which precludes the
trial court from imposing any
sanction, which precludes the trial
court from imposing any' sanction
upon V.O.P. the first District
certified the question: "where a
defendant serving a probationary
.-split sentence as defined in Tripp, is
incarcerated for a crime committed,
prior to October I, 1989, and placed
on probation for a crime committed
after October I, 1989,' is the
defendant exempt from the forfeiture
provisions of section 944.28(1),
Florida
Statutes
(1989),
in
calculating the Tripp credit upon the
revocation of probation?"
The First District quashed
the 'circuit court's order and
remanded the case with directions to
order Larimore's immediate release
from custody. •
24

Inmates put to death since 1976
The 38states that have the death penalty vary Wide~OW often it is used. Inmates executed since the us. SUpreme Court reinstated the
penalty in 1976. and the number so far in 2004:
.
State Total 2004
State
1btaI 2004 $tate Total 2004
0 Idaho
1
U
22 10.
Texas
33S
~q"
0
0 NoM.
1
11
5 Ind.
Va.
94
0
2 Tenn.
1
Il
6 NeVOlda.
7S
0
0 Wyo.
10
I
0 Calif.
61
Mo.
1
0
Miss.
6
0
us.
3
·59
2
FIa.
10
6
2 Utah
Ga.
36
110 a:mlIlonc CClIUlKUcUl, ~
1 Now ~. Hft¥ ./rrWY. Hft¥
4
34
4 Md.
N.c.
YofIl .1Id SouIb DdDI;o ,.... tM
0 dedth Ilft\IIIY bill how nat I'IfCUtfd
4
4 Wash.
S.C.
32
_a-19711.
0 110 dulII pau/lJ: QIIlUi punIsII3
2 Neb.
30
Ala.
buulod'" lhr llIitIl<t..rco0 _Is
3
0 Pa.
La.
'1:1
IumtIllI alld lZ sutrs: ~ HI\IAlL
IOWol, MIlne. ~ Mk!tlKy.
2
0
1
Ark.
26
s.n. Mlnn"o... North D.t"'••
0 _1sImd.1MInonf. _Yl/lll>Z
0 Mont.
Ariz.
22
101.Wl$CDlISIn.
0
'Z
7 Ore.
Ohio
15
~: IlNIh I'ftWlIy lnCDrmoIllon
0 em.,
I
0 Colo.
DeL
13
_~n«UtJans.

* Attention *
Veterans
Have you ever been in the U.S. Military? Do •
you have a service-related disability? Are you in .
prison? If your answer is yes to those questions
you may very well be eligible to receive
disability benefits while yOU· are .incarcerated, as
well as benefits for your spouse. children or
parents. For more information about benefits for
imprisoned disabled veterans contact or have
someone contact:
Department of Veteran Affain
P.O. Box 1437
Sf. Petenburg, FL 33731

or call Toll-free'
1-800-827-1000
or on the web at:
W!fWrYbg,va.gov •

'

Florida Prison Legal Perspectives

Wmllker Vo Crosby:

A. N evv lLease OICl.
Habeas CORpUS
by Richard Geftken
assage of the Antiterrorism and
P
"Effective Death Penalty Act
(AEDPA) in 1996 limited the time in

which to seek federal habeas corpus
relief to one year after a judgment
and sentence becomes final in the
state system by the conclusion of
direct review or the time to seek such
review. In a past issue of FPLP
(Volume IO~ Issue 4) I wrote about
how that one-year time limit has now
been extended to one year plus 90
days. In this article I will discuss
how the one-year AEPDA time limit
is reset in the event that direct or
collateral (post conviction) review
results in resentencing.
Walker v. Crosby, 341 F.3d
1240 (11 lII Cir. 2003) is an important
case wherein the federal Eleventh
Circuit Court of Appeals clarified
that for purposes of deciding the
timeliness of a habeas corpus petition
under AEDPA provisions a judgment
and sentence do not become final
until after resentencing, if such an
event occurs.
Walker, a state prisoner, had
. filed a Rule 3.800(a), Fla.R.Crim.P.,
Motion to Correct an Illegal
Sentence, five years after his
AEPDA clock had expired. Walker
claimed his two IS-year probation
sentences were run consecutive
rather than concurrent as required.
The trial court agreed and
resentenced Walker to concurrent'
sentences. Walker then challenged
his entire conviction by filing a
federal habeas corpus petition
pursuant to Title 28 U.S.C. § 2254.
The U.S. District Court, however,
dismissed Walker's petition as
untimely, stating it was not filed
within one year of his {original)
conviction and sentencing or direct
review or time to seek such 'review of
same as required by the AEPDA.
Walker appealed the dismissal.

On appeal the Eleventh
Circuit observed that the AEPDA
statute of limitations runs from the
latest of several dates. See: Title 28
U.S.C. § 2244(d)(I) (A-D).
In
Walker's case, the Court held,'
subsection (A) would apply because
Walker's sentence did not become
"final" until the state court changed
what it had originally decreed by
resentencing Walker. The appeal
The
court did not stop there.
question also existed whether Walker
was limited to raising only issues that
occurred in connection with the
resentencing and whether issues
going back to the original conviction
and sentencing were AEPDA timebarred.
On that question the appeal
court noted that "the statute directs
the court to look at whether the
[habeas corpus] 'application' is
timely, not whether the individual
'claims' within the application are
timely." Walker at 1243. Thus, the
Court held that the application
(petition) must be looked at as a
whole and not just the timeliness of
the individual claims presented
therein. Walker at 1245. The appeal
court concluded by stating, "We
recognize that § 2244(d)(1) as
written allows for the resurrection of
what seems to be time-barred claims
tagging along on the coattails of a
timely claim," but the plain language
of the statute cannot be read "any
other way." Walker at 1247.
. Authority· supporting the
principle of law expressed in Wql/cer
is considerable.
In an· en banc
decision out of the Eleventh Circuit,
C/isby v. Jones, 960 F.2d 925 (11 l11
Cir. 1992), all district courts were
instructed to respond' to all claims in
a habeas application, whether relief
was granted or not. That would
appear to prohibit responding to just
resentencing issues. In Stewart v.
Martinez-Vii/areal, 118 S.Ct. 1618,
at 1622 (1998), the U.S. Supreme
Court held that if no judgment was
made on the merits of a claim which
was dismissed for "technical,
procedural reasons," second or

successive does not apply. And in
Vi//aneuva v. U.S., 346 F.3d 55, at 60
(2d Cir. 2002), this principle was
specifically held to include claims
"erroneously dismissed as untimely."
The first court to specifically
address erroneously considering the
AEDPA statute of limitation to have
run before a judgment became in fact
"truly final" was U.S. v. Colvin, 204
F.3d 1221 (9l11 eir. 2000). There a
federal district court had issued an
"amended judgment." The appeal
court in Colvin held that the AEDPA
clock began when the time expired to
appeal the $50 reduction in
restitution which had been ordered.
The Court established that as a
"bright-line rule" regarding finality.
Subsequently, in Maharaj v.
Secretary for the DOC, 304 F.3d
1345 (lIth Cir. 2002), the Eleventh
Circuit appeal court fonnally adopted
the bright-line. rule of Colvin. The
appeal
court held,
"Because
Maharaj's resentencing had not
occurred at the time he filed his
habeas petition, his. state judgment
had not become final." Maharaj at
1346, 1349. Consequently, the Court
reversed the district court's decision
dismissing Maharaj's petition as
untimely.
Citing Colvin and Maharaj,
a district court in the First Circuit
expounded a particularly well
reasoned viewpoint: "The AEDPA's
basic premise is...the state's interest
in the fmality of its judgments."
Lewis v. Maine, 254 F.Supp.2d 159,
at 165 (D. Me. 2002). That court
ruled that Lewis had timely filed his
habeas application because it was
filed. within one year of a revised
restitution order being issued
changing the sentence, adding, Wfhe
onus of making a judgment final
under state law and state procedures
ultimately must rest with the State,
not Lewis and not ~s court." •

25

Florida Prison Legal Penpectives
Sumter Correctional Gavel Club #293838

The First Gold
Toastmasters International is the leading movement devoted to making effective oral communication worldwide reality. In florida's prison
system there are only two (2) groups left and those groups are caJled Gavel Club and Affiliate of Toastmasters Intemational. Through its member
clubs, we learn the art of speaking, listening and thinking - vital skiJls that promote self-aetualization, enhance leadership potential, foster human
understanding, and contribute to the bettennent ofmankin.\LJIom!Iffi'aStm"'lnstfOffers;it,s.J!!.ember many awards with the gold as its highest.
;
The road to gold is not easy, a member m~ give (10) speeches in the c1ub~ive the first award, The Competent Toastmaster, b~
in prison it's called Competent GaveJier. Thest;J6peeches help the speaker become more .elo4Ue t when speaking to a group, or more importantly,
when speaking in front of prison stafTW~il
."' ing your ~i!9b.. withOpgg~~.n~attitude an
'ng the wrong thing.
Next, to assume that you are
y for ~@I'1ll'~ cs you~ org , y~ words, w
our voice, and make gestures; etc., but
=e~~riIY that your skills ,7~ Jly d.ev.el1t1~ t~:het~.. 7J~'
are d . ed around four principles to help the

diffiCUI~,~~~irl~~,

I,

The projects increase}'
,you progress.
I
l\ ,~
~
2. Each project incog)'orates wlwt YQ9,~leam
they are specificpUy refer@lt9f\"J1
'1
3. The projects s,~ply mo~~n~~o, '
talks.!
'.",.,,1#'
4. Remember,jt is the speech I},('~""_ .. ,,
There are 16 advanc/d communication and leaders Ip manua s.
manual library set cOst $35.00.
; ,';""
The next<award yq" receivQ}is
program manuals;.each ~u'4J, has (~p "
At this time oUtC1Wpro~~Jes,
club board and fulfill a ~r~(6) rnclDtIt "
leadership excepence ~ and
i
(Prison Compefent Gaveifut C. , '.'"
Membership, Vice Presi~ent of li,lfil c
training prognpn whi\~J!; om
Competent Leader AWiiiI.

iMin with

it'

,r

Jo~
if th~I:,'ect and
'X',ill ,~~~

becomi~g more specialized as

en

0'\1 usc

' .

me

techniques whether or not

'\1 give ou idea-starters for future

\

. !\ the manual. \_
manua cost, 53.00. The p.i'son wiTJ'l\'elp pay for this p{0gram. The advanced
:
'\
'
0 I'dvanc~mmuni~tion and leadership
I)~

•

/'

•

hi~ning.lf~u are voted to the

I '1',-

S~lul Clul:J,Series and/or the
cd ~ tent ¥astmaster Award
t of
a
T

·on. .ice President of
-span
club officerwi award you the

\,. ..,J
'
'sondr:Iwo oftncm are here at
Sumter C o r r e c l i o n a l l n a t i t j l t i o n . r - ,
I) Alton W. Q~\!;~. ~.
t'mlZ>

Fro~ what~now

r

The next aw.!JJJ; you .
manuals and conduci'"tWl1prog '.
Now ithe q,ofd, the A
conducted one of the su~co .
speeches. Again, this is'more than
supervisor and Il1lJch .1"/
.in!
Here at~umte~oltioniU
•

•

~tte the ~ve two more

~
<

{';'V;I~~'

'.

'th hip or her first three
ent or ~ming a bener
.

i/ --

,I ':,'

,!

.,li,,;,),,"-

?

PreSIdent-Harold R\g.g~ms,l\;.G.V!ce Pres~dent Edu~lon,.S~(e't\,P. An ~:!~~~.
VIce PresIdent Mem~hl~~ P
. ''!J~
Vice President Public I\elations-D~d Keen,
Secretary-Melvin Mobl~,
~
i,;!'

,/'

,\~~:

J

~'

1

urrey
·.G,"
• BeJl 0' • ,A.oJJ

t

..

mem
cmpi

work, this is International, and this will help you in so many wa

-q'!~~l\
;;c:!ii,."i\.

A%";>:

~

~hes; \coordinated and

.I

n, AG~

.~\
te~::~~~~~~", ~_

~~ ~

A prisoner with a life
S,. C.L..
fl
in lhi"lub ":receive
an Advanced Gllvelier Gold ~
, he has' e it to the hig
.er Int2)~~Jas to . e and now he will continue his
growth in speaking and helping t ~.
club an it~'rs.
'
~
'
.
We here say to him "con tUlatl0ns~ t h . or showing us that no matter, .
. you ha you should get whatever help prison
has to offe(?
~.'
~.
Now to prisoners all over wh6m read,ing
~~wo Id,l. ,~rove'th
cs and
elop communication and leadership skills,
start a Gavel Club at your prison or institutiti'it....f,or more mlbrmat n
.'~" %~.JJ
d

f'!M

~-

."..... ,~,

Toastmasters International
P.OBox 9052
Mission Viero, Ca 92690·9052

-"<,.,,,,,,,

~

"

~

'

~

Mr.~~ifro; (Sponsor)

''GiVe. Club 11293838
P.OBox 667
Bushnell, Fla. 33513

And we will help as much as we can in getting your club started. AJI ofthls information is from Toastmasters International Gavel Club"
293838. Vice of public relations David Keen.

26

Florida Prison Legal Penpectives

EXPERIENCED CRIMINAL PEFENSE ATTORNEY
AVAILABLE FOR STATE AND FEDERAL
POST-CONVICTION MATTERS
"J'

Admitted to the Florida Bar in 1973
• Over thirty years experience in the practice ofcriminal law
• Providing representation in Direct Appeals, Belated Appeals,
3.850 motions, 3.8000 motions, 2255 motions, State and Federal
Habeas Corpus Petitions, Detainer Issues, Institutional Transfers,
and other Postconviction Matters.
Inquiries to:
Law Offices of
'Dan ie{ 'D. .1vtazar
2153 Lee 'Road'
Winter Pari, :FL 32789
T'o{[:Free 'let 1-888-645-5352
'let (407) 645-5352
:Fax: (4 0 7).645-3224
•

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before
you decide, ask us to send you free information about our qualifications and experience.

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. 'k:'"'elf"''e- d:] ;P·:··\a··'s-;~. . ·~··,;:~:::··;:~,:·
.,'
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dUef, buraIar, bank robbtr, ~ ardac, jliUaouIC lawyer aDd award winniDs writer - pides mdcra dU'oup
• ~ detdted lOUr, from ~banfoot youth CO reform IChooIl, prilOnI and death row, an
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How To Orden A ~ P., .ofcback, " x 9, 324 pagea
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kiJlcddby Van 'or.~7i"'h~J.~~'~~ ,,~ Van Poyck hat
'-_........... penne CWO nove.., • Tn;". riu.rol WiW.om, and Q"inM,.
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You CIA order fnlftlllDlt For Preedom, P.O" BOll 11',

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Florida Prison Legal Perspe~tives

Supreme Court Rules Federal Sentencing
Guidelines Are Unconstitutional
Hig-h Court Declares Guidelines Violate Rights_~
Federal Judges Are -Handed Broad Discretion, and Told 'Th Use Rules as ~uggestions
12, 2005, the U.S. Supreme Court in a pair
OnofJanuary
5-4 rulings held that the federal sentencing

guidelines enacted two decades ago to standardize federal
prison sentences nationwide are unconstitutional because
they violate a defendant's right to be tried by a jury.
The decisions in Uniled Slales v. Fanfan and
Uniled Slales y. Booker hands broader discretion. to
federal judges in what sentence may be given to
defendants by directing them to consider the guidelines
merely as a suggestion rather than mandatory. The
guide\ines had forced judges to boost sentences based on
factors that a jury hadn't ruled on. Now judges are
permitted, but not required, to do so.
The decision will affect the sentences of the
60,000 offenders sentenced in federal court each year. It
may result in lesser sentences also for several thousand
federal defendants who have already been convicted but
who are still appealing their sentences. The Supreme
Court, however, shattered the hopes of tens of thousands
of other federal prisoners (and state prisoners who hoped
Blakely v. Washington, upon which Fanlan and Booker
were decided, would be applied retroactively) by making
it clear that its decision will !!Q1 apply retroactively to
cases that have become final. (The Fanlan, Booker and
Blakely cases were discussed in FPLP, volume 10, Issue
5, pg. 30.)
While the high court's decision on. the federal
guidelines may give federal judges more power to decide
sentences and take into account individual circumstances
it may only be temporary. Congress, especially one in
. which both houses are Republican controlled, is expected
to reassert legislative control by pushing through more
aggressive mandatory sentences that would effectively
overrule the Supreme Court's decision. The Justice
Department is already looking at how to revamp federal
sentencing to ensure harsher sentences without violating
the Constitution.
Frank O. Bowman III, a former federal prosecutor
who teaches law at Indiana University, said he believes
congressional intervention will follow. He pointed out
that in many case, prosecutors persuade defendants to
plead guilty' and cooperate by rewarding them for

28

"substantial assistance." Under the guidelines, defendants
who receive such reward are exempt from the guide\ines'
strict provisions. However, now with the guidelines only
advisory, defendants may not' cooperate. "The Justice
Department has just lost all of its bargaining leverage,"
over defendants, Prof. Bowman said. More than 95
percent of federal cases are resolved through plea
bargains.
The Justice Department is reported looking at an
earlier proposal by Prof. Bowmim that Congress take the
top off existing guideline ranges, replacing them with the
legally prescribed maximum for the crime. That way
judges wouldn't have to give a justification for hitting
defendants with a tougher sentence, so long as it was
below· the legal maximum. (Florida already has in effect a
similar sentencing scheme, the Criminal Punishment Code
enacted in 1998.) •

Penalty Box
Some statistics related to federal
sentencing guld~lInes
Year guidelines
took effect
Criminals senteflced each

1$87

eo,.

)'llar In federal courts
Current estimate of

180,_

federal prlsonees
Estimated cases currently
on appeal
Cases appealed In
fiscal 2002·
Percentage of cases resolved
1fI1Ough Illea bargaIns
°Ended5elll30.

SOurces: us. SCntandng CorrimiWan; WSJ reKaft:Il

Florida Prison Legal Perspectives
]P:>SlIr1hm~Ir~

film

JFIr11~<IDrm g

oc.~~Jp:>fiIm~
"IrDn~ JF11Slmm<e AIlfiw~
,

by Linda Hanson and Oscar Hanson

(

hey say that absence makes the heart grow fonder, but
for many of those caught in a prison relationship this
old adage is simply a misnomer. Any relationship these:
days is a lot of work to maintain and most fail. Just look
at the divorce rate. Add the incarceration of a spouse and
divorce is usually automatic. But if you're one of the few
that believes in maintaining your vows and upholding the
values of the institution of marriage, or if you are on the
fence struggling with these or other issues, here's some
helpful advice from a couple w.ho has endured the turmoil
of separation only to grow deeper in love with each other.
Undoubtedly the most important tip of all for both
partners is to communicate. For the inmate, recognize that
your partner is incarcerated too. While they may not be
physically bound. emotionally they are just as jailed as
you are. There is a tendency for the newly incarcerated to
feel gloom and doom. believing the relationship will not
survive such trauma.
By cla~ng up and not
communicating. you are contributing to the possible
demise. Communication is the key to survival. For me,
communicating with my loved one has opened up avenues
of knowledge about my significant other I may have never
discovered otherwise. Communicating through letters and
telephone calls forces you to be creative in your dialogue
and will lead you into realms previously unchartered.
Aside from learning some rather interesting facts about
your partner, you demons~te your confidence and trust in
your spouse, an important signal to send to the waiting
partner.
For the waiting partner, keep the letters, cards,
and pictures flowing. You can never learn to appreciate
how important these little things can. be to your
incarcerated loved one. Mail call is perhaps the most
important event of the inmate's day. Your inmate partner
looks forward to these things to reassure him that he is
still a very important part of your life.
One of the hardest aspects that plagues couples
when, one is sent to prison is the loss of intimacy. All too
often when a partner goes to prison. the waiting partner
will be inundated with pressure from outsiders to fill that
intimacy void. They may even feel like they are unfairly
missing out on intimacy and affection and may seek
comfort elsewhere. And. unfortunately, they may grow
weak and open themselves up for intimacy only to regret it
afterwards. Don't do anything that you wouldn't want
done to you. Think long and hard about your commitment
before doing something that you will regret later.

T

For the inmate partner, the temptation to engage
in a homosexual relationship or to write to your friend's
sister might be too much. Resist it! , Remember that you
have someone who loves you and who is waiting for you
to come home, without disease and guilt
For both of you, the saying "What they don't
, know won't hurt" doesn't cut it. Aside from a sense of
moral value, eventually someone will find out-and it will
hurt.
Trust is the vital thread that holds relationships
together. . Without trust there is no relationship. Not
knowing what the waiting partner is doing on the outside
can drive a sane man crazy. It takes a tremendous amount
of will power to ward off all the unfounded negative
feelings that can harbor themselves in the inmate's ~
If your partner has made a commitment to stand by you
then accept that and don't let negative thoughts haunt you.
It will only cause you to say or do something that you
won't be able to take back. After all, if your w~ting
partner has assured you she is committed-she probably
means it. .Otherwise, she would simply move on.
Nevertheless, if you have concerns, talk it over.
Remember how .we started this topic with
communication?
For those incarcerated, you must understand that
your imprisonment has created a huge void in your loved
one's life. She is basically alone. They must carry on
I
with their lives. Serving as both the mother and father, if
you have children. They must pay all the bills on one
income, while trying to help the incarcerated partner with
comfort items such as shampoo and deodorant-items not
provided by prison officials. This is not a time to be
demanding. All to often I've witnessed men beg their
partner's to send money, only to gamble it away or buy
. drugs. Don't become a liability.
While ,the opportunities for paying prison jobs are
sli~ they do exist. ,Get yourself into one of these jobs and
become self-supportive. And of course I would be amiss
not to mention prison "hustles" that always abound. But
don't get involved in schemes that will only lead to further
trouble.
'....
For waiting partners, you must recognize that your
lov~ one has entered a world of hostility, greed, and
unknown dangers. His life will change dramatically.
Despite all the rumors about how soft prison has become,
this is not summer camp. Your loved one will have a wall
built around him that is difficult to break thought In
prison there is no love, compassion or understanding.
Most, if not all his street acquaintances wiJI abandon him.
Don't be upset if they act a little strange or distant in the
beginning. The shock of incarceration can take weeks if
not months to overcome.
During that period' of
adjustment, they will be on an emotional rollercOaster.
Your emotion support during this time is critical and vital

29

Florida Prison Legal Penpeetives
to his transition.
Each partner must come to grips with the reality
of incarceration. You must come together as. a team.
Your partner is your best friend and there is, no room for
disrespect, emotional or verbal abuse. There will be days
when your patience will run thin and it will be a natural
reaction to explode. When such action occurs the other
must realize this is just a momentary thing, one that will
pass. Show your support by avoiding confrontation. Wait
it out.
As the time evaporates and you reach the end of
your sentence, you and your partner will have overcome a
huge hurdle in your lives. You will appreciate each other
in' ways you would have never imagined. No otherworldly
obstacle will effect you. As a team you have become
conquerors. One day you and your waiting partner will
look back and 'make the same observation my partner and
I made: Twelve years apart, thousands of letters,
hundreds of phone calls and visits, two lonely hearts, and
one lovo-what does that add up to?' Total commihnent.
And with that, nothing else matters. •

............................

:
:

•:
•
:
•
:
•
:
•
:
•
:
:
•
:
•

~

NOnCE
MEMBERSHIP DUES INCREASE

G~Il1lIb1Bllntt ~~~l1llttft<D>IDl§~
]P>Irfi§<Il>IDl<e~

tt<D> IIDf1<e
ith the average stay on death row hovering at just
W
over nine years, more and more condemned
prisoners
opting to
their appeals and
to

~

•
:

•

On April 1, 2005, Florida Prisoners' Legal :
Aid Organization membership dues for:
prisoners will increase from $9 to $10 a year.•
Until that date pri~Qners may still become a :
member and receive FPLP or renew their •
membership for $9 per year. Membership :
dues received after that date in the old •
amount of $9 will be prorated for a 10 month :
membership instead of one full year. If you.
are not a member, join now. If you are a :
member, thank you for your loyalty and.
support, and encourage other prisoners to :
join up. FPLAO is Your organization. Help •
support the work for Florida prisoners and :
their families and friends.
:

are
fo~o
asking
be executed.
Currently this is one of two trends being played
out across the nation. While 38 states and the federal
government have the death penalty, many are becoming
increasingly reluctant to use it And, about one in nine of
those condemned are volunteering to die.
According to Richard Dieter, director of the Death
Penalty Information Center, an anti-capital punishment
group in Washington, D.C., fewer states are seeking the
death penalty in criminal trials. Even when death
sentences are given, some states are in no hurry to carry
them out.
.
A new report by the center found that death
sentences in 2004 declined to about 130, a three decade
low. The S9 executions that took place were 40 percent
fewer than in 1999.
The report said increased concerns about
innocence, fed by exonerations of death row prisoners,
produced the declines. In addition, the report revealed
that since 1998, S9 of the S13 prisoners executed
volunteered. Death penalty opponents say long stretches
on death row makes prisoners suicidal. •

.

Utlgatlon Manual
Sold Out .

30

V <Il>nllllImtt<e<eIrfirm$

The first edition of the Florida Prisoner's
Utlgatlon Manual: Legal Information on Prison
Discipline, Mandamus & Appellate Review, that
has been being advertised in past Issues of
FPLP, has sold out. No more copies of that
edition are available. Please do not send orders
for that book. We will let you know If and when
a second edition of that book becomes
available.

Volunteeringto die
J

Since 1998. about one in nine convicts executed had volunteered to
be put to death. 1Wo of the 13 executions scheduled 50 far this ye~1'
are voluntary.

.Vollmteets GI~

1998~

1999

.

,98

2~1El!85

~:~~
=~65

Nolcr. 'Trus WlVC\llftlonr ,.....,••
• ¥Illllll!ftr, In :zoos.
'lOurt.., Dt..h I'rtWIY Inr....".1I0Cl C.nt.-r:

- - - - - - - - - - - - - FLORIDA PRISON ~GAL

,.

Perspectives
-------------.
.

Florida Prisoners' Legal Aid Organization Inc.

BECOME A MEMBE~
YES !

I wish to become a member ofFlorida
Prisoners' Leg~ Aid Organization, Inc.
1. Please Check 0/ One:

a
a

Membership Renewal

3. Your Name and Address (PLEASE PRIN1)

_ _ _ _ _ _ _ _ _ _ _ _DC#
Name

_

New Membership
AgencylLibrarynnstitution 10rgI

2. Select 0/ Category .

a

$IS Family/AdvocatelIndividual

a

$9 Prisoner

a

$30 AttomeyslProfessionals

a

$60 Gov't AgencieslLibrarieslOrgsJetc.

.Address

City

State

Zip

Email Address and lor Phone Number

C1r Please make all checks or mo~ey orders payable to: Florida Prisoners' Legal Aid Organization. Inc. Please complete the above form and send it
with the indicated membership dueS or subscription amount to: Florida Pruonen' lAgal A:ti Organlzalion Inc.. P.O. BO% 660-387, CluduOlD. FL
32766. For family members or loved ones ofFlorida prisoners who arc unable to afford the basic membership dues. any contribution is acceptable
for membership. New, unused • US postage stamps arc acceptable from prisoners for membership dues. Memberships run one year.

ENRIQUE J. DIAZ has joined the
finn arMARIA D. CUETO. P.A.. As a
Legal Assistant. We otTer thcfollo\\;ng
services.
·Post-eonvietion

·Willsltrustslcsmtcs

·DOAH proceedings ·Family Law
·Instilutional issues
Enrique J. Diaz. l.epl Assistant
Maria del Canncn Cueto. P.A.

717Ponce de Leon Blvd..
Suite: 234
Coral Gables. FL33134

Office (305 )446-3266
Email: Crlmlllwfllll;!.aol.com

31 - - - - - - - - - - - - - - - - - - : (

PRISON LEGAL NEWS
SUBMISSION OF MATERIAL TO
FPU
Because of the Iargc volwne of mail being

received. financial CODSidemtions. and the
inability to provide individual)cp1 assistance.
members shouJd not send copies of legal
doamleats of pending or potcotiaJ cascs to
FPLP without having first c:ontaeted the S18ff'
and receiving directions to send same. Neitbcr
FPLP. <nor its statt: are responsible for any
unsolicited material sent
...
Members arc requested to continue sending
news information. newspaper clippings (please
include name of paper and date),
manomndums. photoCXJpics of final decisions
in ampublistlcd cases. and potcntiaJ 3Iticles for
publication. Please send only copies of suda
material thai do not have to be rctumcd. FPU'
depends uri YOU. hs readers and members to .
keep informed. Thank you Cor your
coopaation and participati~ in hdpma to get
the ,news out. Your efforts arc greatly
appJCCiatecl

Prl80fl ugal HeM is Il 48 pap monthly autglIZine
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VOLUME 11 .ISSUE 1

JAN/FEB 2005

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PERMIT NO. 65