FLORIDA PRISON LEGAL

ers ectives
ISSN# 1091-8094

VOLUME 12 ISSUE 1

QeIlJP> lB[eIl!lIl em fllDf

SclllllllFIlorlh Slmte JP>mlIDmeJrl
by Teresa Bums Posey

H

ealth care for prisoners located in aU South Florida
prisons was tuned over in January to .a private
company that promises to save the state millions of dollars
over the next ten years. The contract has drawn both
praise and criticism from some lawmakers. Though if it
results in substandard health care for prisoners, as some
expect, the only penalty paid will be by prisoners who are
disenfranchised and whose suffering can therefore be
easily ignored by those who pushed for the privatization.
The administration of Gov. Jeb Bush is praising
the contract that puts Prison Health Care Services of
Nashville, TN, in charge of providing health care to more
than 14,000 prisoners at 13 South Florida prisons. It's
claimed that taxpayers will be the real benefici~es, with
Prison Health being able to care for prisoners much
cheaper than even the Department ofCorrections could.
Some legislators are concerned, in part, because
the contract went to Prison Health, which had the lowest
bid, tens of millions of dollars lower than its nearest rival
bidders. They are concerned that the company will have
to take shortcuts that could result in poor health care for
prisoners and possibly create hidden costs to taxpayers in
the long run from things like prisoner lawsuits. Prison
Health is no stranger to claims it provides substandard
care to prisoners or prisoner lawsuits.

JAN/FEB 2006

"It all seems very suspect," said Sen. Frederica
Wilson, D-Miarni, who· sits on legislative committees
dealing with criminal justice and corrections issues.
"We know the health care in the prisons already
isn't what it should be. There are deaths, and there's
almost an epidemic of tuberculosis and hepatitis C and
HIV-AIDS. If this company is going to underbid all the
others, then I fear we can only expect greater
disappointment," Wilson said.
On New Year's Day, Prison Health and several of
its subcontractors took over the prison health care after
winning the bidding war with the biggest prison health
care providers in the $2 billion-a-year industry.
Under the contract, the Department of Corrections
(read taxpayers) will pay Prison Health $792 million over
10 years. Wexford Health· Sources, which has had the
South Florida prison health-care contract since 2001, had
bid $884 million to keep the contract. The third bidder,
Correctional Medical Services wanted over $1 billion.
Prison Health, a publicly traded company with 2S
years of experience in Florida, largely providing health
care in county jails, is represented in Tallahassee by an
•influential lobbying finn headed by Brian Ballard, who
has ties to Gov. Bush and several other Republican
lawmakers. Department of Correction's Secretary lames
Crosby's ties to lobbyists seeking the health care contract
were scrutinized recently. [See: FPLP, Vol. 11, Iss. S and
6, pgs. 5-6, "Lobbyist Ties of FOOC Secretary
Scrutinized."]
Once legislators forced the Department of
Corrections to change the wa~ it was trying to piecemeal

FAMI1JES ADVOCATES PRISONERS

ON

THE
INSIDE

u.S. S. Ct. Considers DNA Issue•.....•..••................................3
Post Conviction Comer
12
FDOC Secretary Fired .•..•.•••.......••.•..•...............................•....14
Citizens Sue Parole Commission•.....................................•.... 16
Nota.ble Cases
20
FDOC Statistics .••........•.......•...................•.............•...............27

Florida Prison Legal Perspectives
FLC)RIDA PRISON LEGAL PERSPECTIVES
P.O. BOX 1511
CHRISTMAS, FLORIDA 32709
Publishing Division of:.

.

FLORIDA PRISONERS'· LEGAL AID ORGANIZATION, INC.

E·mllil: folp@ao1.coID
Website: www [olao om

FPLAO'DIRECTORS
Teresa Bums~Posey
, Bob Posey, CLA
David'W. Bauer, Esq.
Loren D. Rhoton, Esq.

Publisher
Editor
Research

'FPLPSTAFF
Teresa Bums-Posey
Bob Posey
SherriJohnson
Anthony Stuart

Florida PiisonerS,;'Legil Aid: Orgilnization, Inc., P.O. Box. ISH,
· Christmas, FL32709, publiShes FLORIDA PRISON, tEGAL .
PBRSPECl1VES'(FPLP) up·to six times a year. WLP is a 1\\lJI,pl'Clfit
pUblication focusing on the Floridaptison 8I)d criminal j\lSlice
systems. FPLP provides .Ii; vehicle for news; 'infonnation, and
resources affecting prisonetS, their families, fiiends, loved ones, and
.the general pubti.cof Florida. Reductiimor cril11 e and recidivism,
·maintenance of famit~ des. civil right$, Improving conditions of
confinement" promotbls skilled co~ access for prisoners, and
promoting·.accoull~ilitY of prison officials are aU issuesFPLP Is
·designed to address. Ffl-P's nQIl·alto,me,y voluntee:r staff cannot'
"fespond to rectues{s'fQf legll1advicC, DUe to the volum.e ofmall that is
received and volunteer $Uiff,limltatiol'l5; all correspondence that Is
:reCeived cannot bC rcsponded:lo, but all mall·will receive indivld4a1
.attention;.Perinlssloifls grariti;ll'to reprint matetijlrappearlng in FPLP"
:that docs,not indicate It is CQpyrighted provlded:that FPLP, and any .
~indleated authQrare, ide"'tified In the ~print and a copy of the
p~blicatlon in which the material is pUbllslted. ,is,~ provllli:d' to'the.
FPLP publisher. This publicatioll' Is riot meant to: be a sub~itutc fOr
-1eg8l or other professional advice. The material in FPLP should not
, be "retied upon l\ll'authontative and may Not contain sufficient.
information to dCl!>l·with a legal, problem. FPLP IS18utomaticatly sent.
·to
l1lembeis of FPLAO. Inc.. as a membership benefit.
Membership duCs for FPLAO; Inc., operate yearly and are $10 for'
..prisoners, $ISforfamlly mem~rs'lind other private indlvid~als, $30
2. for attorneys, and'$60 for.agencies. libraries, andinstltutioltS.

all

I

out the contract, it was finally let out by competitive' bid
for the entire contract, and there is no indication that
Prison Health's political or insider connections led to it
getting the contract. Prison Health just claims it can do
the job cheaper, almost $100 million cheaper than the next
lowest bid. Which should have raised a red flag. some
think.
Wexford officials said they were shocked that
Prison Health bid for the contract at such a low amount.
They suggested that the contract could be financially risky
for Prison Health. Prisoners in these institutions are
considered to be among the sickest in the country,
disproportionately suffering from health conditions such
as HIV-AIDS, hepatitis C, diabetes and hypertension,
according to prison health officials.
"We were really surprised they not only bid on the
Florida business but bid as low as they did," said Mark
Hale, executive vice president and chief operating officer
of Wexford, a Pittsburg-based company. "This is truly
one of the most risky contracts that any prison health
company could enter into."
Prison Health Services will provide basic medical
treatment and phannaceutical services, as well as mentalhealth, dental and vision care under the contract.
Legislators, including some who support Prison
Health getting the contract, promise they will keep a close
watch on its perfonnance. Prison Health will need to be
watched closely it's felt, in part, because of its dismal
track record.
"I'm willing to give them the benefit of the doubt,
"but past experience doesn't make me overly optimistic,"
said Sen. Dave Aronberg. D-West Palm Beach, who sits
on the Senate's criminal justice committee. One might
wonder if he would be willing to give the same benefit of
doubt if it were his or his family's health care at risk going
with the cheapest medical care.
Prison Health has 110 prison health-care contracts
in 37 states. It has had contracts with Volusia and Brevard
counties in the past.
Last year The New York Times ran an
investigative report on the company that found that
substandard care contributed to at least 1S prisoner deaths
in 11 Florida jails since 1992. The newspaper identified
numerous administrative and health-care related problems
at correctional facilities under contract with Prison Health
Services throughout the country.
AIthough the paper's investigation questioned
Prison Health's perfonnance, it found that overall it did
good work and did save taxpayers money. Company
officials claim many of the criticisms leveled at the
company come from unproven prisoner allegations raised
in lawsuits.
"Inmates are one of the most litigious groups in
society, and the vast majority of the suits that are filed
against PHS are dismissed by the court as baseless before

Florida Prison Legal Penpeetives
ever going to trial,~ said Martha Harbin, a spokeswoman
for ~rison Health.
[Sources:' Orlando Sentinel, The New York Tunes. FDOC
contract with Prison Health Services.] •

us StQlremme Co_ ~
lD>~Irlltme1m IIDedhl Pt_ Cme
by Joseph Wll/Jhawitz

The US

Supreme Court has finally agreed to review the
issue' of exOnerating DNA evidence in a death penalty
case involving an alleged rape and murder. The striking
feature of the case,. which pits Paul House against
Tennessee. is' not· that this is the first DNA-death penalty
case to be heard by the Hi.Bh Court but that the state and
federal court systems have allowed the matter to get this
far in the judicial process in the first place.
Review by, the High Court concerns a very
divided US Court of Appeals in which the majority of the
Sixth Cireuit declined to grant House relief despite the
court's finding that he "has been sentenced to death on the
basis of a set of facts that now turn out to be false in
soveraIsignificant respects."
Initially, however, the
. conviCdon.appearCd to be'~ed on solid evidence. So
much so that the Tennessee and federal courts have
pcriistenily affirmed the conviction of guilt and sentence
ofdeatIL
.
The Sixth Circuit's' opinion described what
happened. . Carolyn Muncey's body was found concealed
in some woods near her hOme. Serilen was found on her
clothes~ Wounds on her' body indicated there had been
physiCal stru8sJe, and mediCal experts testified 'that trauma
to the head waS the cause, of death. Later, the victim's
blOOd was. found on the blue jeans. House had been
wearing on the evening' ofthe murder.
, House mUst be guilty of rape and murder, right?
Not necessarily•. After trial, ~NA testing proved that the
semen belonged to the victim·s husband, Hubert Muncey,
not House. Aside from the semen evidence. "there was no
physic8l . evidehce supporting" rape or attempted
npe.••There was no evidence of forced penetration, the
victimS clothing was not ripped or removed, and there
were no bruises' on' the victim indicating an attempted
rape. l'he State now seems to concede these facts,» the
court .said.
.Okay, so maybe House didn't rape Mrs. Muncey.
Maybe he.bad soineother motive to murder her. After all,
her blood was found on Holise's jeans. But there's mo~
to it than that.
In . a nutshell, House's attorney's
demonstrated that the blood found on the jeans was taken
from vials of blood drawn from Mrs. Muncey's body
many hours after the murder. That is, the blood on the
outside of the victim·s body had a different decay rate
(enzymatic denaturing) than the bl~. in the vials arid on
<

the jeans; yet the blood on the jeans had the same rate of .
decay as the blood in the vials. Obvi~Usly.there ~ been
some evidence tampering.
.'
But there's more. Two witnesses came foi'waid
and testified that "Hubert Muncey CoDfessed to
accidentally killing his wife." According to Kathy Parker
and Penny Letner. Mr. Muncey said that "he smacked,her
and she feU and hit her head." A.third ,witness testified
"that he told her that he was going to get rid of his wife' a
few months before her death."
. .
One m~t think that. with all of this evidenc:D
indicating the foundation of the State's caSe is ~ to
say the least, any court would be happy to grant a ~
trial. But such is not the case. Bogged down by corrosive
reasoning and hubris-filled rhetoric, courts halve been
unable to determine whether House should receive a filir
trial despite knowing the first trial was' fimdamentally
flawed.
If House is guilty. won't the evidence prove it? It
is hard to acknowledge that so many "jurists of reason"
would risk executing an innocent man rather than simply
order a new trial. The public is left to guess whether the
courts have any faith in the very system in which tJteYare
anintegra1part.
It may turn out to be a good thing that the US
Supreme Court decided to intervene. According to Nina
Morrison, an attorney with the Innocence Project in New
York, "This will be the first time the Supreme Court
considers the impact of DNA evidence on the
constitutional right to a fair trial.
The potentilU
implications are significant" House, who has been
incarcerated since 1985 and is currentIy on death row.
would probably agree.
The Innocence Project has employed DNA testing
to exonerate 172 people since 1989, including 14 from
death row. "What we have leaned... is that DNA evidence
10,20, 30 years later turning out to be much more reliable
than eyewitness testimony and more reliable; than
confessions that are often faIse," said Peter Neufeld,
cofounder ofThe Innocence Project.
,
Lawyer Barry Scheck, also a cofounder of The
Innocence Project, and Neufeld together filed an amicus
curiae (friend of the court) brief with the Supreme Court
in the House appeal encouraging the court to grant House
a new trial. "Whenever postconviction DNA testing
proves that.a prosecutor's theory ofthe case was filIse.and
proves that certain factual assertions present in the original
trial were false, then at a minimum that.conviction shOuld
not stand and a new jury should be able;to hear thetruth,"
said NeUfeld.
The general public might find it amazing to learn
however that 1S state attorneys general filed amicus curiae
briefs urging the Supreme Court to not only deny House
relief but also to prevent federal courts from intervening in
state criminal cases notwithstanding evidence proving the
innocence of those unduly convicted. What's worse is

13

Florida Prison Legal Perspectives
that federal law supports their position. The .Antiterrorism
and Effective Death Penalty Act (AEDPA) and Prison
Litigation Reform Act (PLRA) both operate to limit
access to federal courts with such strict wording that the
US Constitution has taken back seat to legislative and
procedural law.
There are some who think the House case will
not really change anything, like Kent Scheidegger, legal
director at Criminal Justice Legal Foundation: "It may be
a vehicle for incremental change," he said, "but I don't
expect anything ground breaking out ofthis case."
Mr. Neufeld is a bit more optimistic: "For the
first time the entire American public, including the Nine
Supreme Court justices, are aware of just how vulnerable
our criminal justice system is and how easy it is for
innocent people to get wrongly convicted," he stated. "If
there is going to be a situation where we are going to go
back and give somebody a second trial, then it should be
those cases where scientific evidence sheds new light on
the question of guilt or innocence."
The Rehnquist court upheld AEDPA and PLRA;
let's hope the Roberts court can do the right thing, give the
American people fair trials and quit playing lap dog to the
corrupt politics pouring from the halls of congress. A
decision is expected in the House case before the Supreme
Court recesses in June.
(Note: The Supreme Court heard oral arguments in House
v. Bell, case No. 04-8990, on January 11, 2006. The
underlying federal appeal court decision is found at House
v. Bell. 311 FJd 161 (6th Cir. 2002).]
[Sources: Federal Reporler; Chrislian Science Monilor,
January 12, 2006] •

by Dana Meranda

nder Rule 3.850 Fla.R.Crim.P. a motion to vacate a
U
sentence that exceeds the limits provided by law may
be filed at any time. Summers v. Slale, 141 So.2d 987

4

(Fla. 5th DCA 1999).
It has been held that this portion of the rule
authorizing review of sentences "in excess of the
maximum authorized by law" refers to a sentence which is
above the legislative maximum for the prescribed crime.
Wahl Y. Slale, 460 So.2d 519 (Fla. 2d DCA 1984).
Such a claim may be raised at any time pursuant
to Rule 3.850 or Rule 3.800(a). depending upon whether
an evidentiary hearing is required. Hinson v. Slale, 109
So.2d 629, 630 (Fla. III DCA 1998). Dol Y. State. 30
Fla.L.Weekly 0155 (Fla. 3d DCA 3/16/05).
However. despite the "filed at any time" provision
lof the rule. where the illegal sentence issue requires a

factual resolution (i.e. evidentiary hearing) the motion
must be filed within the· applicable two-year time
limitation. Maynard v. Slate. 163 So.2d 480,481 (Fla. 4"
DCA 2000); Lee Y. Slale, 154 So.2d 14 (Fla. 4th DCA
2000) (Jail time credit issue); Houser v. Slale, 30
Fla.L.Weekly 01198 (Fla. 2d DCA 5/11/05) (scoresheet
errors).
No other motion to vacate. set aside, or correct a
sentence may be filed or considered if filed more than 2
years after the judgment and sentence become final in a
non-capital case or more than 1 year after the judgment
and sentence become final in a capital case in which a
death sentence has been imposed.
For purposes of the 2-year time limit under Rule
3.850 the judgment and sentence become final when direct
review ofihe proceedings has concluded.
If a judgment and sentence are appealed, they
become final for these purposes upon the issuance of the
mandate by the District Court of Appeal. Beaty v. Slate,
101 So.2d 856 (Fla. 1991); Witt v. Stale, 861 So.2d 1292
(Fla. 5th DCA 2004).
On the other hand, if the Florida Supreme Court
has jurisdiction to review the District Court's decision and
review in that court is sought, the judgment and sentence
become final upon the conclusion of proceedings in the
Supreme Court. Maxwell v. State, 888 So.2d 152. 153
(Fla. 51b DCA 2004); Perkins Y. Stale. 845 So.2d 213 (Fla.
2d DCA 2003). The Florida Supreme Court generally
does not have jurisdiction to review decisions issued
without a written opinion (i.e. Per Curium Affirmed). but
it may review a "citation PCA," if the citation is to a
decision that either is pending review or has been reversed
by the Supreme Court. Id. at 845 So.2d 214.
Where no direct appeal is taken, the judgment and
sentence become final upon the expiration of the 3o-day
period within which the defendant could file an appeal
(Notice of Appeal). Davis v. Stale, 681 So.2d 292 (Fla. 2d
DCA 1997); Black v. Slate, 150 So.2d 162 (Fla. 3d DCA
2000).
If a Petition for Writ of Certiorari is filed with the
United State Supreme Court, the two-year time period
does not begin to run until the writ is finally determined.
HJdfv. State, 569 So.2d 1241, 1250 (Fla. 1990); Barkettv.
Stale, 128 So.2d 192 (Fla. 111 DCA 1999).
Rule 3.850(b) provides three (3) exceptions to the
2-year period of limitations. For a summary of this
subdivision see FPLP VoL 1, Issue 2, pgs. 9-11,
Postconviction Comer, by Loren Rhoton, Esq.
A second or successive motion for postconviction
relief can be denied on the ground that it is an abuse of
process if there is no reason for failing to raise the issues
in the previous motion. Owen v. Crosby. 854 So.2d 182.
181 (Fla. 2003).
For Co$lling issues of timeliness under the
mailbox rule, the Florida Supreme Court held that a
motion is deemed filed on the date appearing on the

Florida Prison Legal Perspectives

LOREN D. RHOTON

I
I-------------PCSTCCNVICTICN ATTORNEY

•
•
•
•
•
•

Direct Appeals
Belated Appeals
Rule 3.850 Motions
Sentence Corrections
New Trials
Federal Habeas Corpus Petitions

412 East Madison Street, Suite 1111
Tampa, Florida 33602
(813) 226-3138
Fax (813) 221-2182
Email: .Iorenrhoton@rhotonpostconvlctlon.com
Website: www.rhotonpostconvlctlon.com
The hiring of a lawyer is an important decision that should not be based solely on advertisements.
Before you decide, ask us to send you free written information about our qualifications.

BUYTHEBOOK-ONSALENOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER

A Compilation ofSelected Postconviction Corner Articles
A collection ofLoren Rhoton's Postconviction Corner articles is now available in one
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their cases. Helpful insights, case citations, and references to the relevant rules ofprocedure
are provided. This book is a must for those pursuing postconviction relief.

To order, send $20.00 in the form of a money order, cashier's check or inmate
bank cheek (no stamps, cash or penonal checks please) to the address above, or
order online at www.rhotonpostconviction.com.

"--------------------------15

Florida Prison Legal Penpectives
motion's certificate of service. Thompson v. Stale, 761
So.2d 321, 326 (Fla. 2000); Weslly v. Slale, 30
FIa.L.Weekly 0144'9 (Fla. 2d DCA 6/8i05).
Rule 3.050 Fla.R.Crim.P. allows a court "for good
cause shown" to extend the two-year deadline for filing a
postconviction motion under Rule 3.850. Slale v. Boyd,
846 So.2d 458 (Fla. 2003).
Amendment of Rule 3.850 motions are permitted
when made within the limitation period. The Supreme
Court determined that when both the original and
amended 3.850 motions are filed within the statutory 2year time limit.. .it was error not to consider the merits of
the new allegations. Gaskin v. Stale, 737 So.2d 509 (Fia.
1999); Pritchell v. Stale, 29 Fla.L.Weekly 02202 (Fla. 2d
DCA 2004).
In Wallon v. Dugger, 634 So.2d 1059, 1062 (Fla.
1993), the defendant was granted 30 days in which to
amend a Rule 3.850 motion to pennit additional claims or
facts discovered as a result of a public records ~uest.
And see: Rozier v. Slale, 603 So.2d 120 (Fla. 5th DCA
1994) (not barred from filing relevant supplemental
document within reasonable time after 2-year deadlineapplying Rule 1.190(e), Fla.R.Civ.P.)
When the trial court orders the correCtion of a
technical defect (i.e. Oath) it will normally specify the
time within which to refile, even tlnugh it may be beyond
the 2-year time limitation.
Jumper v. State, 30
FIa.L.Weekly 01309 (Fla. 2d DCA 5/25105); Daniels v.
State, 685 So.2d 1344 (Fla. 2d DCA 1996).
.
In coqjunction with a resentencing proceeding as
a result of a "direct appeal," the 2-year limitations period
for filing a Rule 3.850 motion begins to run when both
conviction and sentence become final. Pierce v. Slale,
875 So.2d 726 (Fia. 4th DCA 2004); Skeens v. State, 853
So.2d 494 (Fla. 2d DCA 2003).
Where a resentencing occurs following a
successful "postconviction motion," see Joseph v. Slale,
835 So.2d 1221 at 1222 n.3 (Fla. 5th DCA 2003) (the 2.,
year limitation is not tolled by other collateral proceedings
filed in the trial court, even if a corrected sentence is
entered.)
Where a defendant was resentenced pursuant to a
Rule 3.800(a) motion, the 2-year limitation period for
issues raised in a Rule 3.850 motion attacking the
judgment commenced when the judgment became final,
not when the defendant was resentenced. Smilh v. Stale,
886 So.2d 336 (Fla. 5th DCA 2004), citing Kissel v. Stale,
757 So.2d 631 (Fla 5th DCA 2000) (resentencing did not
effect finality ofjudgment).
[Important Note: For anyone intending to file a 28
U.S.C. § 2254 federal Petition for Writ of Habeas Corpus
after exhausting state remedies, in order to be timely filed
in the Federal District Court, consideration must be given
to the I-year AEDPA time limitation. See: Tinker v'

61

Moore, 225 F.3d 1331 (11 th Cir. 2001); 28 U.S.C. §
2244(d)(2).
The I-year federal limitation begins to run on the
date the judgment became final· by the conclusion of any
state direct review (i.e. direct appeal) or the expiration of
the time for seeking such review. See: Kaufmann v. u.s.,
282 F.3d 1336, 1339 (11 th Cir. 2002).
Section 2244(dX2) does not toll statute of
limitations during 9O-day period to petition for writ of
certiorari to US Supreme Court of deniaJ of "state
postconviction relief." Coates v. Byrd, 211 F.3d 1225,
1226 (11 th ~ir. 2000).) •

M01IfleDDD tl:o CO~ 1IIIDep)D
SeDn~ce lFIDlecdl P1DurlIuDsmnG: tl:o
l1lmIIha 308M(.~ IrJlSl.JRL.<CIrfb:am.JlD.
by Dana Meranda

'"I Then preparing a

Motion to Correct llIegal Sentence
to research the
applicable law in effect at the time the offense was
committed; since such motions can be filed at any time,
even decades after the sentence was imposed.
Absent retroactive operation, the law in effect at
the time of the offense is controlling. Castle Y. State, 330
So.2d 10 (Fia. 1976); Wells Y. State, 30 Fla.L.Weekly
DI826b (Fla. 3111 DCA Aug. 3, 2005). And, other than a
genuine pipeline case, it's not the law in effect at the time
of any resentencing. Milchell v. Slate, 635 So.2d 1073-74
(Fla. lSI DCA 1994). See also: Hamillon v. State, 30
Fla.L.Weekly D2417c (Fla. 4th DCA Oct. 12, 2005)
certifying conflict with Isaac v. Slate, 30 Fla.L.Weekly
DI582e (Fia. III DCA June 23, 2005) on whether
Apprendi applies to resentencing when tried and sentenced
pre-Apprendi.
It is also particularly important to recognize any
changes/amendments that may have developed concerning
the Rules of Criminal Procedure and Florida Statutes
along with each oftheir effective dates.
For instance, Rule 3.701, FIa.R.Crim.P.
(Sentencing Guidelines) used in conjunction with Rule
3.988(a)-(i) (Scoresheet Forms) applies to all felonies
except capital felonies committed on or after Oct. I, 1983,
and before Jan. 1, 1994. See: FlorUkJ Criminal
Sentencing Law, 2d ed, by C. M. Bravo.
These rules as revised by the Florida Supreme
Court on May 8, 1984,' were adopted and implemented in
accordance with § 921.001, Fia. Stat. (Sentence). Laws of
Florida Ch. 84-328 became effective on July I, 1984, as
illustrated in Smilh v. State, 537 So.2d 982, 984 (Fia.
1989).
Second, the issue(s) must be cognizable on Rule
3.8oo(a) motions. For example, judgment issues are
strictly forbidden and have no probability of success.
Safrany v. State, 895 So.2d 1145 (Fla. 2d DCA 2005).

VV under Rule 3.800(a), it is essential

Florida Prison Legal Perspectives·
A double jeopardy sentencing error plain on the
face of the court records could satisfy the parameters of
cognizability if carefully explained and presented. Ortiz v.
State, 779 So.2d SS2 (Fla. 2d DCA 2001); Shaw v. State,
780 So.2d 188 (Fla. 2d DCA 2001).
Generally, issues which require a .factual
resolution (in an evidentiary hearing) should not be
brought in a motion to correct illegal sentence. Spires v.
State, 796 So.2d 1245 (Fla. Sib DCA 2001).
From time to time the Florida Supreme Court
decides a variety of (cognizability issue) cases for the
purpose of Rule 3.800(a) motions, e.g., Wright v. State, 30
Fla.L.Weekly 5611 (Fla. Sept I, 2005), "failure of
sentencing court to provide written reasons for retention of
jurisdiction does not constitute an illegal sentence as
contemplated by Rule 3.800(a)." See also: Galindez v.
State, 892 So.2d 1231 (Fla. 3M DCA Feb. 16, 2005) and
Taylor v. State, 897 So.2d 496 (Fla. 41b DCA Feb. 23,
2005), both certifying direct conflict with Johnson v.
State, 877 So.2d 795 (Fla. Sib DCA 2004), on whether
vindictive sentencing issues are cognizable on Rule
3.8oo(a) motions; and Williams v. State, 30 Fla.L.Weekly
02569a (Fia. 41b DCA Nov. 9, 2005), on rehearing,
certifying conflict with Watts v. State, 790 So.2d 1175
(Fla. 2d DCA 200I), as to whether a mere allegation that a
written sentence does not comport with an oral
pronouncement is sufficient to raise a Rule 3.800(a) claim.
This is a valuable step and will save a lot of time
and grief in the long run. If the issue is not clearly
cogni2able on Rule 3.8oo(a) motions. the time spent
writing the motion is' wasted. The courts simply will not
address it.
Third, the avid legal researcher has undoubtedly
read countless DCA cases finding that the Rule 3.800(a)
motion fitiIs to meet the facially sufficient requirement
Florida DCAs are fairly consistent on this requirement:
(1) the error must have resulted in an illegal sentence; (2)
the error must appear on the face of the record; and, (3)
the motion must affirmatively allege that the court records
demonstrate on their face an entitlement to relief. E.g.,
Robinson v. State, 816 So.2d 222-23 (Fia. III DCA 2002).
The Second DCA recently emphasized the
importance of this requirement in Macaluso v. State, 30
Fla.L.Weekly 02494a (Fla. 2d DCA Oct. 28, 2005),
explaining that the postconviction court's (trial court) first
task was to determine the facial sufficiency of the Rule
3.800(a) motion.
However, be aware, there is some inconsistency
among the ocAs on whether ruling on a facially sufficient
3.800(a) motion requires the trial court to justify a denial
with attachments. Shaw v. State, 780 So.2d 188, 191 (Fla.
2d DCA 2001); Cf. Williams v. State, 30 Fla.L.Weekly
02569a (Fla. 41b DCA Nov. 9, 2005).
And, it is the duty of the court, not the state, to
supply the necessary attachments. McBride v. State, 810

So.2d 1019 (Fla. 51b DCA 2002); England v. State, 879
So.2d 660 (Fla. Sib DCA 2004).
When it has been determined the motion is
facially insufficient (a procedural ruling-Reynolds v.
State, 827 So.2d 356 (Fla. 111 DCA 2002», a defendant
has a right to refile the motion and correct the identified
insufficiency. Flanagan v. State, 792 So.2d 519 (Fla. 2d
DCA 2001).
Therefore, be aware that the language used in the
motion is eXtremely important. A choice of the wrong
wording or omitting an affirmative, required allegation
will serve to invite defeat with alarming quickness.
Forth, the record...refers to the entire written
record available in the circuit court. Atwood v. State, 765
So.2d 242-43 (Fla. 111 DCA 2000); Jackson v. State, 803
So.2d 842, 844 (Fla. 111 DCA 2001) (transcripts).
As a precaution, it is wise to specify where the
necessary information could be located (whenever
possible) and state. how the record demonstrates
entitlement to relief. Milne v. State, 807 So.2d 725 (Fla.
4 th DCA 2002); While v. Slate, 886 So.2d 286 (Fla. 111
DCA 2004).
Even though it is preferred to include court
records (if available) as attachments to the motion, a
defendant is entitled to correction of an illegal sentence
regardless of the fact that he failed to include transcripts of
a sentencing hearing or of a completed scoresheet under
the applicable version of the guidelines. Eastwood v.
State, 834 So.2d 409 (Fla. 51b DCA 2003).
Lastly, Rule 3.8oo(a) "contains no proscription
against the filing of successive motions" but that "a
defendant is not entitled to successive review of a specific
issue which has already been decided against him." State
v. McBride, 848 So.2d 287, 291 (Fla. 2003), citing Price
v. Slate, 692 So.2d 971 (Fla. 2d DCA 1997). But see:
Cillo v. Stale, 30 Fla.L.Weekly 02SS6 (Fla. 2d DCA Nov.
9, 2005) e[C]ollateral estoppel will not be invoked to bar
relief when its application would result in manifest
injustice.")
Although the foregoing points out some basic
standards involved with Rule 3.800(a) motions, it's
merely a scratch on the surface of the topic. The most
effective practice requires thorough research and
preparation on a cas~by-case basis. •

<CUttnttli@lDllLilW WfiIIIllLftblly
~ lInnte~ 1[J~
ver eight year ago Florida lawmakers passed
legislation that gives the judiciary the power to order
chemical castration to sexual offenders. However, the law
seems to be foreign to many judges. In fact, many are
unaware of the law. That will change soon.
Victor Crist is concerned and he has vowed to get
some answers as to why the law is not used more

O

.

17

Florida Prison Legal Perspectives
frequently. Crist (R), a state senator from Tampa who
helped engineer the mandatory castration law, is angry
that it has fallen into disuse.
A study by the State Courts Administrator
General Counsel's Office suggest it wasn't even discussed
in dozens ofcases where the law required it.
Les Garringer, senior attorney for the general
counsel's office, surveyed judges and court administrators
to determine why they are failing to use chemical
castration as required in criminal cases involving violent
rapists who have been convicted of two sexual batteries
under Florida Statute 794.011.
The study uncovered at least four Pinellas County
cases where sex offenders sentenced to prison terms
should have been ordered to receive mandatory castration
after their release.
Garringer said the state courts' administrator will
distribute his findings to the Legislature, the DOC, and
.Gov. Bush with recommendations to improve the
castration law. •

ust when you think you've heard every horror story
Jwrong.
about the criminal justice system, a state proves you
This time it is the state of North Carolina.
Recently, Junior Allen walked out of the Orange
Correctional Center after serving 35 years. His crime?
Stealing a black and white television.
Allen was a 30-year old migrant farm worker
from Georgia with a criminal record when he walked into
an unlocked house and stole the 19-inch television worth
approximately $140.
He was sentenced in 1970 to life in prison for
second-degree burglary. Ironically, that same offense
today carries a maximum penalty ofthree years in prison.
It took Allen 26 attempts at parole before the
Parole Commission decided to free him.
A program. director at Carteret Correctional
Center in Newport where Allen was required to attend a
work-release program feared Allen may have a difficult
time adjusting to life on the outside following his lengthy
incarceration. He also offered a rather striking question:
How much time would Allen have gotten had he ,stole a
color TV? •
.
Guide help. those _ged by criminal records
A new publication &om the Sentencing Project can guide former prisonm in
undmunding lheir rights and oYUCOming lhe basgage of a criminal rKord.
"1Ulief From the Collateral Consequences of a Criminal Conviction: AState·by,
SUte Retource Guide" describes the fedetaI, state and j~ietionallaws and practices
relating to restoration of rights and fiading relief &om lhe collateral consequences of
a crimina1 conviction.
"NotWithslaDding our fond natiooal self,imagt, ours is not a land of second
chances, at least u far as the Iepll)"Slan is concerned," writes report author Margaret
Colgate Love. who concludes lhat I11O$t JUrisdictions offer ways 10 circumvent post,
prison penalties but lhat lhey are usually inaccesst'ble lind unreliable.
You can access lhe repon at www.senlencingproject.orglrillhu~ration.cfm.

8 I

- NOTICEThl' mailing :Hhln's.s f",' 171'1,:\0, Inl'., and
Florida Priso/l Legal P{'nJ)('clil'{,.~· (FPLP) has
changcd. Thc ncw addn'ss is :IS follows. Pltasl'
Sl'/HI a/l mail flJl'ci"l/lcr FpLAO, IlIl'., Ill' FI'Lp 10
this new addrcss:

P.O. Box 1511
Christmas FL 327(1 1)-]511

LITIGATION UPDATE
In FPLP, Vol. 11, Iss. 3, we reported on Smith Y.
FDOC, 30 Fla.L.Weekly D1299 (Fla. 1st DCA

5/23/05), where theappea1 court held that the FDOC's
legal photocopying fee rule, 33-501.302, F.A.C., is
invalid because the FOOC never had statutory
authority to implement such a rule. In the last issue of
FPLP it was noted that the FOOC motioned to certify
a question on it to the Fla. Supreme Court. Those
motions were denied, and the FDOC petitioned the
state Supreme Court to accept jurisdiction and review
the decision. A stay was granted .until the high court
decided whether to accept jurisdiction. On January 18,
2006, the Fla. Supreme Court refused to accept
jurisdiction and denied review, meaning the appeal
court decision will stand. The appeal court should now
issue a Mandate on the decision and finalize it. Once
that happens, prisoners who have been charged
photocopy costs, or had liens placed on their accounts.
for same, should exhaust the FDOC grievance
procedure seeking reimbursement to, or removal ofthe
liens from, their inmate accounts for past
photocopying costs, citing the Smith decision. If the
FDOC refuses to voluntarily reimburse or remove the
liens, for amounts up to $5,000, relief could be sought
in small claims courts around the state.
[Note: hi small claims courts it is important to know
how to move your case along. See Clark Y. State, 30
Fla.L.Weekly 01945 (Fla. 4th DCA 8/17105); Smartt v.
First Union Nat. Bank, 771 So.2d 1232 (Fla. 51b DCA
2000); and Powelly. Watson, 565 So.2d 845 (Fla. 51b
DCA 1990).].

Florida Prison Legal Penpectives

EXPERIENCED CRlMINAL DEFENSE ATIORNEY
AVAll..ABLEFOR STATE AND. FEDERAL ·
POST-CONVICTIONMAfIERS
•. Admiued to the Flonda Bar in 1973
'. Over thirty years experience in the practice of ~nallaw
• Providing represelitation in Direct AppealS, Belated Ap~
3.850 motions, 3.800· motions, 2255 motions,' State arid Federal
Habeas Corpus ~etitions, Detainer Issues,
~ other Postconviction Matters.
Inquiries to:
Law Offices of
'Vanie['D• .1tfaztir

Lee 'lwaJi
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"-

David ~ Collins, Attorney at Law
Fonner state prosecutor with more than 20 years of criminal law experience
"AV" rated by Martindale-Hubbell Bar Register ofPreeminent Lawyers
Your voice in Tallal,assee representing prisl!ners in all areas ofpost-eonviction relief:
Appeals
3.800 Motions
;.850 Motions
Slate and Federal Habeas Corpus
\Vrits of Mandamus
Parole Hearings
Clemency

Plea Bargain Rights
Sentencing and Scoresheet Errors
Green, Tripp, Karches/cy, Heggs cases
Jail-time Credit Issues
Gain-time Eligibility Issues
Habitualization Issues
Probation Revocation Issues

Write me today abouTJIOllr case!
David W. Collins, Esquire
P.O. Box 541
Monticello. FL 32345
(&SO) 997·&111
"The hiring ofa :awyer is an important decision thnt shoulci not be based solely up~n advertisements.
Before you decide, ask me to send you free written information about my qualifications and experience."

19

Florida Prison Legal Perspectives

GA - On December 8. 2005. an

Atlanta judge freed a prisoner whose
claims of innocence of a kidnapping ,
and rape for 24 years were rejected
until DNA testing proved he wasn't
guilty. Robert C·lark, 45. had been
wrongfully convicted for a 1981
attack on an Atlanta woman and
sentenced to life plus 20 years. His
lawyers said DNA from another man,
a friend of Clark's, Floyd Arnold,
matches the rape and two others
committed after Clark was sent to
prison. Clark was convicted after the
victim identified him as the man who
carjacked and repeatedly raped her.
Vanessa Potkin, an Innocence
Project attorney that pushed for
Clark to be freed, called the case
"truly horrific."
When released,
Clark, while kissing and hugging his
family members, kept repeating, "I
told you. I told you.,.
FL - During November '05 the U.S.
SUfreme Court refused to review the
I 1 C~it Court of Appeals'
decision upholding Florida's lifetime
ban on voting rights for convicted
felons.
However, Alan Spalding,
with the Florida branch of the
American Civil Liberties Union, says
opponents of the ban are ready to get
the issue on the November '06 ballot
for the public to vote on, if
necessary.

FL - On December 14, 2005, Gov.
Jeb Bush signed legislation passed
during a special session of the
. Legislature in November giving
Wilton Dcdge $2 million in
compensation for time wrongfully
spent in prison. Florida law caps
claims against the state at $100,000;
to get more, the Legislature must
pass a special claims bill. Dedge was
lucky. Sandy D'Alemberte, a former
10 state legislator and Florida State

University president, led an effort to
compensate Dedge for the years
Dedge was
stolen from him.
released from prison on AuguSt 12,
2004, after spending 21 years, 10
months, and 23 days in Florida
prisons. He was proven innocent of
a 1981 rape by DNA testing. [See:
FPLP Vol. 11, Iss. 1, pgs. 3-6, for
Wilton Dedge's story.]
FL - Hernando County Jail guard
Nathaniel Pullings, 33, was fired
September 30, 2005, after he went
into a female housing unit at the jail
and ordered the women prisoners to
strip naked. Pullings was in charge
of the jail's laundry and claimed he
wanted them to strip to wash their
laundry. He was overheard by the
husband of a prisoner telling the
women, "You bitches strip and wrap
a towel around you." The jail is run
by the private company Corrections
Corporation of America.

FL - A former Levy County
corrections guard was arrested
December 15, 2005, by state
authorities on allegations that. he
used his position as a corporal at the
county jail to force female prisoners
to have sex with him. Willie Lee
Powell, 45, of Chiefland, was
charged with four counts of sexual
battery by a person in a position of
authority. His bond was set at
$100,000 on each charge. Powell's
personnel file shows he had worked
for the Levy County Sheriff's Office
for four years. He began his career
as a guard at Lancaster in 1983, and
he also worked at correctional
facilities in Columbia County before
joining the LCSO. He had been
forced to resign July 25, shortly
before the Florida Department of
Law Enforcement began its sexual
battery investigation.

IA - On July 4, 2005, Gov. Tom
Vilsack signed an order returning
voting rights to an estimated 80.000
Iowans who have completed prison
sentences for felony convictiom.
Currently only four states, Alabama,
Florida, Kentucky and Virginia. still
deny the right to vote to people
convicted of a felony or aggravated
misdemeanor. Except for Vermont
and Maine, all states prohibit felons
from voting for a period after
convictions, but the period in each
state differs. The above four states
are the only ones that impose a
lifetime ban on voting unless
restored by special clemency.

ID - During October 'OS Idaho
shipped 302 of its state prisoners to a
private Minnesota prison to be
housed
because
of
prison
overcrowding.
In November, ID
DOC officials said they will likely
ask for almost $8 million more on
their budget during the 2006
legislative session to address prison
overcrowding.
Idaho's prison
population has more than doubled in
the past decade, to 6,764 in Nov. 'OS.
NC - On January 1,2006, the North
Carolina Department of Corrections
banned all indoor smoking by staff
and prisoners at all of its facilities.
NE - In March 'OS the Nebraska
Legislature passed, then overrode
Gov. Dave Heineman's (R) veto of a
bill lifting the ban on voting by those
Nebraskans with felony convictions
after two years of completing their
sentence. The bill, passed into law,
is estimated to have restored the
voting rights of 59,000 people.

Florida Prison Legal Penpeetives
08 - During December '05,
Clarence Elkins, 42, was released
from the Mansfield, OH Correctional
Institution after serving 7 years of a
life sentenc:e for murder and rape.
He was exonerated by DNA
evidence.

TN - The Tennessee DOC presented
its budget request to Gov. Bredesen
in November for the next fiscal year.
The TDOC says it expects an

increase of 1,000 prisoners and will
need about 100 more staff people.
The increase would cost 547 million.
Approximately 28,000 people are
expected to be in Tennessee prisons
in fiscal year 2006.
TX - On November 12, 2005, Texas
prisoner David Ruiz died in at a
Galveston, TIC, prison hospital.
Ruiz, 63, was known for filing a pro
se federal lawsuit in 1972 that
continued for three decades and
resulted
in
court-ordered
improvements in the Texas prison
system, stopped the use of prisoner
"guards," and improved medical care
(Ruiz v. Estelle). That case was
finally dismissed in 2002, another
victim of the Prison Litigation
Reform Act of 1996 (pLRA). which
has severely limited the federal
courts' ability to order long term
relief for constitutional violations of
prisoners' conditions of confinement
Ruiz died while serving a life
sentence for a robbery committed
while he was on parole in 1983.
- Except for 4 years, Ruiz spent all of
his adult life in prisons or jails. He
died ofnatural causes. •

FOR CLEMENCY ASSISTANCE INFO.
WRITE TO:
NATIO~AL CLEMENCY PROJECT

8624 CAMP COLUMBUS ROAD
HIXSON, TENNESSEE 37343
(423) 843-2235

Critical Resistance
in Florida
Critical Resistance (CR) is a national grassroots
group that fights to end the prison industrial complex.
There's· 3 regional Critical Resistance centers: 1)
Oakland, Calif., is the first and is the National Office
for CR; 2) New York City is the headquarters for the
Northeastern Regional Office; and 3) New Orleans is
where the Southern Regional Office is located,
although their offices have been temporarily moved to
Baton Rouge.
Florida is part of the Southern Region. There are 2
CR Chapters in Florida, Gainesville and Tampa/St
Petersburg. We meet every Sunday evening in St
Petersburg; however, we are planning to hold meetings
in Tampa on certain Sunday evenings that are
convenient for those in the Orlando area to attend.
We are made up of Teachers, Ministers, youth who
are interested in being part of changing our world for
the better, former inmates, and other citizens
concerned about the huge increase in prisons in the
U.S.
We are asking that inmates who have family or
friends in the TampalSt Petersburg or Orlando area
have them call us at (727) 278-1547 or (813) 4014256. We would love for them to work with us to
bring about a change.
We would love to hear from inmates as well, we
already have other inmates working with us from
within the prison system. Our contact address is:
Critical Resistance
Attn: Dennis Segall
P.o. Box 21922

Tampa, FL 33622 •

I II

Florida Prison Legal Perspectives

by Loren Rhoton. Esq.

POST CONVICTION
CORNER

X

A State inmate seeking to attack his Judgment and Sentence in the federal courts can do
so by filing a Title 28 of the United States Code (U.S.C.) §2254 federal petition for writ of
habeas corpus. However, there are numerous requirements before the merits of a §2254 petition
will even be considered by the federal courts. Firstly, as with 3.850 motions, there is a period of
limitations which can serve to bar consideration of a 2254 petition. Title 28 U.S.C. §2244(d)(l)
provides a one year period of limitation for filing the federal petition. However, should a case
appear to be outside ofthe one-year period of limitations, the postconviction litigator may still be
able to obtain a review of the constitutional claims if a showing of actual innocence can be made.
Pursuant to Title 28 U.S.C. §2244(dXI) the one year period of limitation shall begin
running from the latest of the following:
I. The date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
2. The date on which the impediment to filing an application created by State
action, in violation of the Constitution or laws of the United States, is removed,
ifthe applicant was prevented from filing by such State action;
3. The date on which the constitutional right asserted was initially recognized
by the United States Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review; or,
4. The date on which the factual predicate of the claim or claims could have
been discovered through the exercise of due diligence.

12

I

If a case appears to be outside of the one year period of limitations imposed by §2244(d),
the postconviction movant may still be able to seek review ofthe constitutional claims.
Exceptions to procedural rules have been made in situations where it would be equitable to do so.
Habeas corpus is, in essence, an equitable remedy. Schlup v. Delo, 513 U.S. 298 (1995). The
U.S. Supreme Court has consistently recognized exceptions to the procedural rules when it is
necessary to prevent a miscarriage ofjustice. "The individual interest in avoiding injustice is
most compelling in the context of actual innocence." Schlup at 325. It has been held that a
petitioner's actual innocence may provide a "gateway" to allow federal constitutional claims to
be heard in a §2254 proceeding in situations where the petitioner is otherwise procedurally barred
by the applicable period of limitations.
In Schlup, it was held that although a federal habeas petitioner's actual innocence is not
itself a constitutional claim on which relief can be based, it is considered a "gateway" which
allows a petitioner to have otherwise procedurally barred claims considered on their merits. Yd.
at 315. In other words, a claim of innocence "does not by itself provide a basis for relief." Yd. at

Florida Prison Legal Perspectives
315: The actual innocence claim is a procedural claim which is offered to demonstrate that the
petitioner's case is one of a select category of cases which implicate"...a fundamental
miscarriage ofjustice" and, thus, allow the court to consider the merits of the procedurally
defaulted claim. Id. If actual innocence is demonstrated, then the procedurally barred claims of
constitutional deprivations (such as ineffective assistance of counsel claims) can be considered
on their merits~ As provided in Schlup, a claim of actual innocence is "not itself a constitutional
claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise
barred constitutional claim considered on the merits."
In making an actual innocence claim, the burden is on the petitioner to present new
evidence (not presented at trial) which demonstrates that it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence. The standard provided
in Schlup is that "in light of the new evidence, no juror, acting reasonably, would have voted to
find [the petitioner] guilty beyond a reasonable doubt." Id. at 329. This is indeed a heavy burden
on the habeas petitioner seeking to avoid a procedural bar.
Actual Innocence, for the purposes of this article means factual, as opposed to legal,
innocence. By alleging actual innocence, the claim would have to be that the movant actually
did not commit the crime. McCleskey v. Zant, 499 U.S. 467 (1991). The term actual innocence
essentially means that in light of the new evidence, a reasonable trier of fact could not find all of
the elements necessary to convict the defendant of the particular crime. Furthermore, actual
innocence has been defined as meaning that the conviction was of a person who was innocent of
the specific crime for which he was charged and convicted, not that the petitioner was not present
at the scene of the offense. Johnson v. Hargett, 978 F.2d 855 (5 th Cir. 1992).
The petitioner must support the claim of actual innocence with new and reliable evidence
which was not presented at trial. Schlup at 324. In reviewing an actual innocence claim, the
presiding court must "consider all relevant evidence: that presented at trial; that arguably wrongly
excluded from trial; and that unavailable at tria1." Battle v. Delo, 64 F.3d 347, 352 (8 th Cir.
1985). And, such an evaluatio,n must be reviewed with an understanding that "proof beyond a
reasonable doubt marks the legal boundary between guilt and innocence." Schlup at 328.
Should the petitioner be able to make the necessary showing, his constitutional claims should be
considered by the reviewing court, even though they would otherwise be procedurally barred.
The actual innocence exception to the one-year'period of limitations sets a high standard to get
past the procedural bar. But, if such an argument is available, it may be a feasible way of
obtaining review of otherwise procedurally barred claims.

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclUSively in the postconviction/appellate
area ofthe law. both at the State and Federal Level. He has assisted
hundreds ofincarceratedpersons with their cases and has numerous
written appel/ate opinions.

______~_*!'!l!.~.£!"!'!'.t_51__- - J 13

Florida Prison Legal Penpectives

FDOC Secretary
Fired
Only a few months after praising what a fine man he is
and what a good job he is doing, on Feb. 10, 2006, Gov.
Jeb Bush abruptly fired the head of the Florida
·Department of Corrections. The firing, which sent ripples
of shock throughout the prison system, followed months
of state and federal investigations into illegal activities by
state prison guards and top officials in the department.
James Crosby, 53, who was appointed by Gov. Bush
three years ago to clean up the FDOC following Bush
ousting former FDOC Secretary Michael Moore, who
.critics claim created turmoil in the department, is
apparently himself the target of state and federal
investigations. State law enforcement officials sealed
Cro~by's office in ,Tallahassee on the day he was fired,
although no one is saying yet just what they are looking
for.
· Crosby spent most of 2005 trying to defend himself
and the FDOC against a constant barrage of allegations of
illegal activities and wrongdoing in the FDOC. Those
·allegations ranged from prison guards operating an illegal
.steroid distribution ring to top officials ruling the
department's employees through fear and intimidation.
Other allegations involved prison employees stealing state
property, using prisoners to perform personal work, hiring
phantom employees, and in one case rape of a female
prison guard by a ranking officer who committed suicide
after being accused. Crosby himself also came under
scrutiny in 2005 concerning his ties to lobbyists for
companies seeking multi-million dollar contracts with the
prison system. (All this previously reported on in FPLP,
Vol. 11, Issues. S and 6, SeptlDec 2005.) However, it
appears that Crosby may have other problems that have
yet to be revealed.
At a new conference in Miami, when asked why he
fired Crosby Gov. Bush said he wouldn't talk about the
details because of ongoing investigations, he did however
say, "I'm saddened and really disappointed, but I had to
do it But as the details come out, it'll be clear that it was
the appropriate thing to do."
"There is an ongoing investigation into the Department
of Corrections, and we can't discuss individuals," said
Federal Bureau of Investigations Special Agent Jeff
Westcott in Jacksonville. Westcott acknowledged that
joint. FDL,E and FBI investigations are looking into
matters that have not yet been reported in the media, but
d~lined to give any details about those matters.
Tom Berlinger, spokesman for the FDLE, also declined
to give any details, citing the state's continuing
investigations.
.Crosby, contacted at home by phone, effused to
comment .on why he was tired, and referred all questions
to the governor's office.

14 I

So, just what is known so far?
In August, AlI~n Clark, an FDOC regional director
whom Crosby is persona~ friends with and whom Crosby
promoted up to a top' position in the' department, was
forced to resign as state and federal investigators
question~, arrested and charged numerous prison guards
wi.th steroid trafficking. Clark and tWo other ranking
pnson guards were' later charged in November with
assaulting a former prison guard afa party, but the charges
were dropped in January on that, no report on why.
FDLE agents seized vehicles and trail~rs belonging to
Clark and other FDOC employees in six North Florida
counties a .few months ago and reportedly ire
investigating prisoners being used to do personal work for
FDOC staff. After Crosby waS fired' it was also reported
that this past fall investigators confiscated' items from
Crosby's Tallahassee home: a leaf blower,' a fuewood rack
and a ladder. Investigaton declined to 'say why they
wanted the i t e m s . .
.
A total of 10 former prison guards have been charged
in connection with the steroid trafficking, six have pleaded
guilty, four more·were charged in·JanuarY_ ,
,
During the first week of Fe~ruary,a former prison
officer who managed the state prisoo's reCycling program
pleaded guilty to embezzling from a recycling center and
for his part in the'steroid ring in which he' sold dnigs to
other prison guards.
..
Also last fall, several other state prison 'guaz:ds were
arrested for fighting at a bar near the state 'prison in Starke,
and a former minor-league baseball player was' arrested
after being accused of doing nothing but playing on a
prison, guard softball team but receiving pay for
supposedly being an assistant librarian at a prison.
Still another ranking, prison guard committed suicide
after being accused, but never charged, of sexually
assaulting a fellow guard last fall.
.
.
Crosby himself knew he was being investigated.
According to court files and police records obtained by the
St. Petersburg Times, a federal grand jury in Jacksonville
and the Florida Statewide Grand Jury have been
conducting separate investigations ofprison officials.
In addition to what appears to be a criminal
investigation, Crosby has been taking. heat for his
relationships with lobbyists. seeking private contracts for
companies that do business with the moc. His awarding
of no-bid contracts, like the .One to Keefe Commissary
Network to run inmate prison cantee'ns and that authorizes
Keefe to increase prices to prisoners 10 percent every six
months, has raised questions because of Crosby's
relationship with that company's lobbyist, D~m Yeaeger.
Cros~y insisted that he paid his own way o,n their trips to
sportmg events and concerts. .
"
On February 6, only days before he was ,fired, Crosby
was grilled by state legislators concerning an auditor
general's report detailing problems with· how the FDOC
handled a contract with a pharmaceutical company. Those '

Florida Prison Legal Perspectives
, ,"t',", ..

same lawmakers, however, they never expected Crosby to
be fired. "1 would be shocked to find out that he would be
directly involved with anything illegal," said Sen. Victor
C,rist (R-Tampa). Not everyone shares Crist's naivete.
;" Retired former Florida prison warden Ron McAndrew
tias.been warning anyone who would listen that Crosby
~aS "corrupting" the FDOC. "What was a wonderful
prganization just a few years ago is a shambles now
thanks to the practices of Mr. Crosby," McAndrew
recently said.
_
: Gov. Bush named James McDonough, director of the
state Office of Drug Control, as interim secretary of the
FDOC. A retired Army colonel, McDonough is one of the
longest-serving members of Bush's administration.
Apparelltly McDonough is not intended to be a permanent
replacement for Crosby, and indications are that Bush will
name someone else to serve as FDOC secretary at least
until the end of Bush's term as governor expires by ternj
limits with this year's upcoming election. What's going to
happen with Crosby remains to be seen.•

.'

,

Prison Official Admits
Stealing

On February 9, 2006, Alan Brown Duffee, 40, the former
executive director of the now abolished Florida
Correctional Privatization Commission, pleaded guilty in
a Tallahassee federal courtroom to stealing almost
$225,000 instate money nearly three years after he used
the cash to help buy houses for himself and his girlfriend.
Duffee pleaded guilty to one count each of mail fraud,
wire fraud and money laundering. He faces up to 20 years
in prison and a $250,000 fine. He will face sentencing in
April.
Duffee took the money from the Privatization
Commission, which was set up to oversee private prison
contracts in Florida. Duffee served three years as the
Comr..ission's executive director. The Legislature voted to
abolish the Commission in 2004 amid complaints about
favoritism to private prison companies and a scandal
involving Duffee hiring former FDOC secretary Michael
Moo~ as a consultant in violation of state law.•

Prisoners Sue Over
Chemical Torture
Ten Florida State Prison prisoners filed a federal lawsuit
against the FDOC on February 6, 2006, claiming they
were severely burned when prison guards sprayed them
with chemicals.
The 'lawsuit names 28 current and" former FDOC
employees, including FSP warden Michael Rathburn, and
former FDOC secretary James Crosby. The case is being

represented by Florida Institutional Legal Services of
Gainesville.
The suit claims prisoners suffered severe chemical
burns. asthma attacks and psychological distress because
ofthe excessive use oftear gas and pepper spray on'them.
Cassandra Capobianco. an attorney with FILS. said'the
excessive use of such chemicals is a result of "systematic
corruption" and amounted to knowing misconduct and
torture by Florida prison employees.

New Study Finds No
Correlation Between
Incarceration, Declining'

Crime Rates
A new study released during Nov. '06 by The
Sentencing Project suggests there may be no direct link
between the growing prison population in the U.S. and
declining crime rates. The study found that declining
crime rates in states with higher-than-average prison
populations were virtually the same as in ,states where the
prison population remained stable or even declined. The
U.S. incarceration rate grew from 411 prisoners per
100,000 residents in 1995 to 486 at the end of2004. an 18
percent increase, according to recent Bureau of Justice
Statistics. The Sentencing Project credits a growing
economy, a decrease in the crack cocaine market. and
improved policing with the decline in crime rates.•

FAMM MEETING
On February II. I had the pleasure of,attending a FAMM
(Family's Against Mandatory Minimums). meeting in Pompano
Beach FL. I met some re!,lly wonderful people at this meeting.
and they have been ofgreat support for FPLP. I used to attend a
lot of meetings of this sort around the state but finances and
time have not allowed me to do this as much lately. That is
something I plan on changing this year.. :
I want to let everyone know how fulfiUing it is to attend a
meeting such as this. When you come together with people who
have similar problems or situations as you then you can' be
comforted and brain storm to fmd solutions to some of the
problems we face as family members with a loved one in prison.
I left this meeting with a great sense of accomplishment and
hope. for the future of our loved ones. I would like to encourage
you If you have never attended a meeting of this sort before to
fmd one and GO become enlightened and a part ofthe solution.
Ifyou need information on where a meeting is being held. or
how to start your own meeting. or would like me to attend a
meeting write to me and I will do all I can to help you with the
information. We need family members to become more
involved and this is a great way to do so. We can help Make
changes possible if we come together and work together for the
good of all. Teresa
TIS

Florida Prison Legal Penpectives

Two New
Sunshine Suits Filed
Against Parole Commission
By Bob Posey
In the last issue of FPU' (Sept-Dec '05) it was reported that
during Septembel' 2005 a citizen filed a lawsuit against Monica
David, Chainnan of the Florida Parole Commission (FPC),
alleging intentional violations ofFlorida's open public meetin~
and records laws. That suit concerns the FPC's adrninisIrative
roles being at least ten years out of dale and providing false and
misleading infonnation and direclions to the public on how and
where the public may attend FPC public meecinp or obIain
FPC public records. The relief sought is a declaration fiom the
court that such intentional misdirection violates Florida's
S~~ Law (§ .286.011, F1a. Stat.) and an iojwction is sought
prolubiting DaVId or her FPC cbainnen successors fiom
misinfonning the public in any manner about public rneetinp or
records. That case is Flowers v. David, Case No. 200s.cA002194. (F1a. 2d Jud. Cir. Ct). Now two more lawsuits have
been filed against the entire Commission aIIegin fuI1her
SWIShine Law violations.
g
In mid-FebnJaJy (2006) Deborah Canttell, a freelance writer
and business owner fiom Orlando, filed suit against the Parole
Commission plaiming that it is violating slate laws and the
Florida Constitution by holding secret, closed door meetinp u
part of the parole considaation and decision-making process.
Specifically Ms. CantteU alleges that wder FJaida law \Wat the
FPC terms "parole interviews," whether initial, subsequent,
special, or effective date parole interviews, are part ofthe parole
decision-making process and therefure must be no1iced and
open to the public, minutes recorded of same, and be held in a
location c.'AISily accessible to the public and press.
Ms. CantteU's suit, seeking declaratoJy and injunctive relief
wder Chapter 86 and § 286.011 (2), Florida Statutes, is based
on the open publicmeedn~ righ1s set fm1b in Article I, § 24 (b).
Florida Constitution. and §§ 286.011 (Sunshine Law) and
947.06, third sentence, Florida S1Btutes (2005). That latter
slatuto1y provision specifically provides that:
"All matters relating to the grunting; derrying. or revo/dng of
parole sholl be decided in a meeting oJ which the public has a
right to be present. ..
Parole consideration is required by law. Every parole-eligible
prisoner must be considered for parole on a periodic basis,
usually every two to five years. As ofJlDle 30, 2005,1bae were
o~ 5,197 ~g Florida stare prisoners in the 85,000 plus
pmon population who were parole-etiglble, since parole
sentencing was ew:ntially abolished in 1983 in favor of
guideline sentencing.
And, it is the tIueo-member Parole Commission's
consti1utionaI and statutory rtisponsJbility to make all decisions
concerning parole granting. denying. or revocations. Article lV,
§ 8lC, Florida Constitution, and §§ 2032 (I). 947.002 (3). and
947.13 (1). Florida Statutes. Any delegation of such

16 ,

responsibility may only occur if certain conditions are met and
laws complied with.
Parole Interview and HeariDg Proceis

. The parole consideration process is divided into two parts.
FiJst, when parole-eligible prisoners come up for consideration a
"parole intaview" is held at the prison where such prisoners are

housed.
Such parole interview meetinp are conducted by FPC staff
called "parole examiners" or "parole hearing examiners." These
examiners are autitotUed by law to meet with such prisoners,
conduct fact-finding activities. and report back to the
Commission the findin~. However, in a delegation ofauthority,
FPC rules and procedure directives direct parole examiners to
not only meet with the prisoners and conduct fact-finding. but
also to meet with Depar1ment of Correction's representatives
during the interview stage, discuss and conduct professional
case analyses with them, and obtain a wriUen recommendation
fium such FDOC lepitsen1ative(s) as to whether and when
parole should be granted. The FPC rules also require the parole
examiners themselves to formulate and make a written
recommendation, supported by wriUen rationales, for
submission the Commission u to what action the Commission
should take to grant or deny parole and/or when parole should
be granted at a later dale.
Second, once the Commission receives the fin~
analyses, recommendations and rationales for the
recommendations that were developed at the parole interview
meeting, the Commission then meets in a public meeting called
the "parole hearing" to approve or deny (with modifications) the
parole examiners' recommendations. ParoIe-eligJble prisoners
are not present at "parole hearin~" but members of the public
can attend and speak, ifgranted prior pennission to do so by the
Commission cbainnan. And victims may appear at such
"hearing.t;" to oppose parole. Victims, victim advocates, and law
enforcement personne~ slate attorneys, judges, etc.. may appear
at hearinp and speak without
••
. .
.
.
reqwnng pemusstOIL
Wbi1e such parole ~ are open to the public, and
no1iced to the public, and minutes recorded of such hearin~
parole interviews are not Neither the public victims, no
Commission itself ever heAIrs what paroJe.eligJble prisoners up
for consideration may have to say on their own behalf: nor are
the recommendations and rationales developed at the parole
interview ~ explained at the public parole hearing.t;. This,
although the Commission's official action at the end of the
parole J1earinw; is docwnented (in writing) as approving or
denying those recommendations that were formulated behind
closed doors.
Rix:eotIy Deborah CantreU contacted the Parole Commission
requesting infonnation on how she, as a member of the public
and press, could attend a nwnber of parole interview ~
to observe the process.
In response, the FPC informed Ms. CantreU that neither the
public nor the press may attend parole interviews. The FPC's
writIm respQDSt further claimed that since parole inteIViews are
conducted by FPC staff parole examiners who "only gather

Florida Prison Legal Penpectives
infonnatioo" that they "are not, therefor't\ subject to the
provisions ofthe Govemment-in-the-Sunshine Law." ,
Dissatisfied with that response, Cantrell, with ~ ftom
Florida Prisoners' Legal Aid Org.. Inc., researched what the law
says about open public meetin~ What was discovered
prompted CantreU to sue for access to attend parole interviews.
Although the Parole Commission has operated as it; and
argued in the past that, it is not subject to the state's SW1Shine
Law, the courts have held o1hetwise. Turner \I. Wainwright, 379
So.2d 148, 155 (FIa. 111 DCA 1980). It affinned and remanded,
389 So2d 1181 (FIa. 1980). It is also weIl-settIed in Florida law
that governmental boards or commissions cannot evade
compliance with open public meeting; laws by delegating their
public decision-making responsibilities to appointed committees
or staff who meet behind closed doors and fonnulate
recommendations 00 any matter on which foreseeable formal
action will later be taken at a public hearing by such boanl or
commission. Town of Palm BelL V. GrrxJison, 296 So.2d 473,
477'(FIa. 1974). reaffirmed, Wood \I. Marston, 442 So.2d 934,
940 (FIa. 1983). See also; Dascott v. Palm Bch Co., 877 So.2d
8, 13 (FIa. 4fJ DCA 2004); Spi/lis Candela and Partners, Inc. Yo
Centrust Savin&f Bank, 535 So.2d 694, 695 (F1a. 2d DCA
1988); and K:ratm! \I. Reno, 366 So.2d 1244, 1251 (FIa. 3M DCA
1979). That is true even where the conunitlee or staff have no
power to bind the boaJd or commission to its recommendations
Because making recommendations is decision-making and it is
the entire decision-making process, no matter how many steps
go into it, that is subject to the SW1Shine Law. Town ofPalm
BelL; Wood,/d, and their progeny cases.
Meetinp of staff of boards or commissions covered by the
SWlShine Law are oot ordinarily subject to poen public meeting;
laws. OccidenJal Chemical Co. v. ~, 351 So.2d 336 (FIa.
1977), disapproved in part on o1her grounds, Citizens \I. Beard,
613 So.2d 403 (Fla 1992). However, when a staff member
ceases to fimetion in a staff capacity and is delegated authority
to hold meeting; and make recommendations to a boaJd or
commission, the staff member loses his or her identity as staff
while conducting or participating in such meeting, and the
Sunshine Law applies to the meeting. Thus, it is the nature of
the act perfonned, not the makeup of those in an appointed
committee or delegated authority to hold meeting;, or the
proximity of the act to the final decision, which determines
whether staff meeting; are subject to open public rneetirIp laws.
Wood \I. Marston, 442 So.2d at 941. See: News Press Pub.Co.,
Inc \I. Carlson, 410 So.2d 546, 348 (FIa. 2d DCA 1982).
Where the Sunshine Law was enacted for the public benefit,
the Florida Supreme Cowt has held that it must be b"berally
consIrUed in the public's &vor to effect its remedial and
protecI:il'e pwpose. Bd OfPublic /nstructJon ofBmward Co. v.
Doran, 224 So.2d 693 (F1a. 1969). and Canney v. Bd OfPublic
Instruction of Alachua Co.. 278 So2d 260 (FIa 1973).
Numerous cowt decisions have acknowledged that Florida's
open public meetin!:l laws serve to promote a state interest of
the highest order by tending to enhance and preserve democratic
processes. The ability of citizens to monitor govemmen1al
decisions and proceedings gtJaIaJlItts that public officials win

be held aa:ountable for their actions. Something, DebonIh
Cantrell claims, parole commissioners have been Jacking for
many, many years.
Approximately two weeks after CantreU filed her suit, Erica
Flowers filed a second lawsuit against the Commission, this
time in the Nmth Judicial Circuit Cowt. Premised closely on
Cantrell's suit, Flower's new suit claims the Commission is
violating the public's right to notice and access to attend another
Commission proceeding, i.e., what are termed "final parole
revocation hearin~" That name is somewhat misleading the
way the Commission bas set up the revocation process.
Parole Revocation Proeess

The parole revocation process has 1bree parts to it
First, when the Commission believes an act may have
oocurnxI that violates the conditions of a parolee's parole a
warrant is issued and the parolee is taken into custody. Within a
specified time a "prelirninary parole revocation hearing" is held
to detennine if probable cause exists to support the charge of a
claimed violation. Such preliminary revocation ~ are
conducted by a parole hearing examiner at a location near the
parolee's residence or near where the violatioo is alleged to have
ocaured. Such hearing; are usually held in the jail where the
parolee is confined.
Second, if probable cause is found to support an alleged
violation, the parolee usually will be transferred to a state prison
to await a ''final parole revocation hearing." The final revocation
hcming is held to determine it; in fact, the alleged violation
occurred, and if so, what action sbouId be taken (to revoke or
reinstate parole). By smtuIe, final revocation hearing; may be
conducted by more than one parole counnissioner, a single
parole commissioner, or a delegated FPC Iqneseulative (usually
a parole examiner). Ifconducted by someone other 1ban two or
more commissioners, the role of the hearing officer is generally
limited to gathering infonnation or fact-finding, by statute.
However (similar to as they do concerning parole intaviews, as
• discussed above), FPC roles and procedure directives delegate
the lesponsibilities and authority of final revocation hearing
officers into the realm ofadua1 decision-making.
By FPC ndes and procedure directives, final revocation
hearing officers not only gather information and conduct factfinding, but also are de1egafed authority to role on argwnent or
other maaers presented at the hearing (such hearin~ are held
like mini-trials, with wi1nesses, evidence presented, and 1be
parolee may be Iqneseuted by counsel). Upon conclusion ofthe
final hearing, the hearing officer makes findin~ of &ct and
makes written nx:ommendations to be submiUed (later) to a
panel of parole commissioners on whed1er parole should be
revoked or not based on ''compt1eDlt substantial evidence"
adduced at the final hearing. (If a panel of commissioners
conducted the final hearing, which is seldom or never the case
in pmcIice, then no recommendation is required, as they may
make a ''final'' determination themselves.)
Third, when the final hearing is conducb:d by someone other
than a panel of parole commissioners (as is almost always the
case). 1be hearing officer's findinp and recommendaIion(s) are

I 17

Florida Prison· Legal Penpectives .;
sent to the Parole Commission, which then holds a public
("openj meeting to, ~ to FPC rules and directives,
approve or reject the findinp and recomrnendation(s) and make
ajina/ detennination on the recommendation(s) on whether to
revoke parole or not (and whether to reincan:erate or impose
another authorized sanction).
The major distinction in the above stages of the revocation
process, as relevant to Erica Flower's second lawsuit, is that the
preliminary and final parole revocation hearing; are not noticed
nor open to the public; and are held in locations that (even if
1hey were open) are not easily or freely accessible to the public.
Yet the Commission, when it meets after those two Itearinp to
finalize the finding'i and recommendations, does open and
notice their meeting to the public. (Of course, the parolee is &1ill
inc:aIcerated awaiting the Commission's fina/ decision, and
therefore cannot attend the public meeting.)
And a augor problem with the Commission allowing the
public to attend only the last meeting held, and not the
preliminary, and especially not the "final" hearin~ in the
revocation process, is that recent case law has held that the
Commission cannot reject the competent, substantial
evidentiary findinp, or nx:omrnendations based on same, that
were made at a final revocation hearing. Tedder v. Florida
Parole Commission, 842 So.2d 1022 (Fla. 1'1 DCA 2(03); and
Ellis 1/. Florida Parole Commission, 911 So.2d 831 (Fla. l lil
DCA 2(05). In other words, those findinp and
recommendation(s) ore the final decision, are binding on the
Commission, and the Commission's later open, public meeting
is nothing more than a show to create an appearance that the
revocation decision is being made within public view.
.
Unfortunately, for the Cammission, acoonfiog to Flower's
seoond suit, it is welkstablished by Florida cowts that "one
pwpose of1he government in the sunshine law was to prevent at
. nonpublic meetinpthe aystal1imtion of secret decisions to a
point just short of ceremonial aoceptanoe" at a public meeting.
Town ofPalm Bek V. Gradison, 296 So.2d at 4TI.
Also unfortunate forthe Commission, where the ~ and
recommendation(s) made at the final hearing are DOW
indisputably binding on the Commission, and are the de facto
final decision, the revocation decision· is actually being made at
a hearing which is not open to the public. Thus, such final
revocation heariop are being held in violation of Article I.
§24(b). Florida Constitution, and §§ 286.011 and 947.06, third
sentence, Florida Statutes (2005). claims Flowers.
Flowers seeks a declaration ftom the oowt finding that final
parole revocation hearinS'i must be noticed and open to the
public and be held in a IocaIion easily accessible to the public
(her theory would appear to be equally applicable to "final
conditional release revocation hearinp," as the FPC also acts as
the Conditional Release Authority and the revocation process is
the same for parole and conditional release). Flowers also seeks
temponuy and penoaoent injWlCtions opening final revocation
hearinp to her and the public.

18

--

ValidityofAdioDSTakeD
._
Neither Cantrell nor Flowers include a claim in their suits
asserting that past parole interviews and hearinS'i offinal parole
revocation hearinp (and any actions taken at same) were
invalid for their failure to comply with open public meetinp
taws. Although, for those who were directly affected by 1hose
actions, that appears to be a viable legal argwnent that could be
made..
It is established that the mere showing that open public
meetinS'i laws have been violated coostituIrs "irreparable public
injw)t." Town ofPalmBck V. Gradison, 296 So.2dat477. And
any action taken in violation of open public meetinp laws is
void ab initio. See: Turner 1/. Wainwright, 379 So.2d at ISS
(parole revocation decisions made behind closed doors are void
ab inition). Section 286.011, Florida Statutes, specificall)
provides that 00 resolution, rule, regulation or fonnal actiot
sball be considered binding except as taken or made at an opel
meeting.
Conclusion
When the abovc.Hlob:d lawsuits were filed, FPLAO staff 01
the on the organiDtion's Parole Project ~ by sendinj
separate news releases cooceming the suits to every Florida sta1J
legislator, Gov.. Jeb Bush, and to over 30 news medii

leplesen1atives around 1he state.
As these cases progress through the court, updates aboo
them will appear in FPLP.•

Parole Commission
Update
• InmilJanuaJy '06lPLP &1affleamed tbattlr;, 9afe Legislafine WH.J
NOf I\'l'01SDJ' IbIJe Bill 1899 (2OOS), 1hat \\WId have ~
leapnizaJ tIr;, Fbida Pmde CaIDII&D1, as ~ sfaled ~
intaxbI to cb during thS year's 1egSsIive sessicn lD &r, tbpD
I1lIIIJf.IW; irKpJiries by lPIP 9aff: IegSatas have m given m1y I'tSJ
btlr;,IeYemI1.

• 00 1amIlIIy 13, 2006, tIr;, Fbida ParoJe ~ in 8AJII'tl

'os

~ 10 tIr;, lawUt filed in Sepr.ntlu
by FJra FIowas (Se
lPLP. Vol.ll.w;'Sard6,~ 141~publBledaNOOceofPlqxs
Rule ~ intlr;,RatJaAdministtcthe W~ iIlfksing til

tlr;,ap;y is planning10amema IlDFllllllberof"llSIU1esat0lqm'2
21, Fbida AdIninSnmYe Code. At tbat same time tIr;, FlC d
pJbI&JedSlMlalN<D:esofPlqxmlRubnalcinggivingmUebtd
ag.n:y imDk to repealllll11l1tlB aB1lBl (J' ~ ndes. C
Febuary 10. 2006, tIr;, 0:xnmiIl0l pubIilIm ils fiml NcO.:e.1
PltlptmI RuIemaking oollcel1ling seam 23-21, FAC. Hawe\ll
waital UntiJ FebuIIIy23 to havetlr;,FDOCJX!ltthatmUeWJemIBfJ
~ iJmBs alIkl see it in tIr;, )rims. This is tIr;, fllC's fiI
mbnakiJg eX any me in <MI' 10 )alS. ~ it is IX> cbJtt d
fllC's imaJt that un rolemakiog mw \WI poviIe we chairm
Mrri=a DaviI adeti.ngeto Fbwtr's JlM5uit, it is Id~ to mal
lIlY diftbaw Blo tIr;, cJaiJm in tbatsuit. On Marth 2FPlAO fib!
rule d1aIbJF ~ tIr;, pqnul nde dJarJp in min 23-21. n
will eftildivelysfopthatrolemakiog\Wiletlr;, IaM\Jils fJ)fi:rwmdII

Florida ,PrisoDLe._. Penpeetives
Florida Parole
Parole Releases vs. Parole Revocations
Owing the past several years there' has been a dJ'amati,c
decrease in the number of parole-eligible prisoners being .,
granted parole in Florida. Curiously, the number of
parolees who have their paroles revoked and who have
been returned to prisons had closely paralleled the number
ofparoles granted until recently. The chart below is based
on the fiscal periods shown.

ImParolcd .Revocations I

Florida Parole
Parole Revocations
Technical violations vs. New Offense Violations
The majority of parole revocations of Florida parolees
are for technical violations. Very few parolees have their
paroles revoked for committing a new offense while on
parole. Under Florida Parole Commission policies, even
a Dunor violation of a technical condition of parole may
result in revocation of parole and a return to priSon. This
chart shows the parole revocations Jor the past thirteen
years. ,

.'

I_Teclmic:al VIOlations _NewOfl'cnsc

I

. 140
120
100
SO

o

eo

I

40

95·96-97·98·99-00-01-02·03·04- .
96 97 98 99 00 01 02 03 04 05

Chart Values
Fiscal Year Paroled Revoked

156
142
95-96
96-97
137
112
97-98
150
111
98·99
169
118
99.00
114
98
00.01
101
101
01.02
61
87
02.03
68
86
03·04
27
91
2,2
04-05
115
Prepared by the FPLAO Parole Project

moc

S1:aff Barbershops Closed

It's been a dirty little secret that for decades Florida
prisoners have been forced to perfonn personal services
for prison employees, such as wash their cars. shine
their shoes and boots, work in staff canteens, and work
in unlicensed staff barbershops as unlicensed barbers
cutting staff hair. In Dec. '05 FPLAO's Teresa Bums
Posey began questioning fonner FDOC Secretary
Crosby and other government officials about the
legality of such practiCes. In particular, Chap. 476, Fla.
Stat, requires all barbershops and barbers who cut any
member of the public's hair to be licensed. On Feb. 23,
'06 new FDOC Secretary James McDonOUgh ordered
all staff barbershops closed. shoe shine operations ind"
car washes shut down, and closed staff canteens in
prisons state wide. If any of those activities are to
resume. FPLAO will be working to ensure it is to
prisoners', not staff, benefit Bums Posey bas served
notice that she will file suit if the staff barbershops. are
reopened without being licensed or with unlicensed
prisoner barbers.

.

"

.

2:

'
,

I

tl\!

i

92~3~4~5~6~7~8-99'()0'() 1·0M3.()4.

939495969798990001 02 03 04 05

'

Chart Values
Fiscal Year Technical New Offense

92-93'
93-94
94-95
95-96
96-97
97-98
98-99
99.00
00.01
01-02
02-03

134
33
122
18
125
2S
129
13
103
9
105
6
109
9
88
10
95
6
79
8
81
5
03-04
87
4
04-05
112
3
Prepared by the FPLAO Parole Project

Totals

167
140
150
142
112
111
118
98
101
87
86
91
115

.' .Parole
Parole is a posl-prison supervision program where eligible
, irimates have the tenns and conditions of parole set by the
Florida Parole Commission. The period of parole cannot
exceed Ihe balance ofthe offender's original sentence. Under
parole, the offender is to be supervised in the community
. under specific conditions. Parole supervision is 'provided by
the,F1orida Department of Corrections. Although Florida no
, . longer has parole except for those offenders sentenced for
offenses committed prior to Oclober I, 1993. caseloads have
increased. These increases are aUributed to other state cases,
wJtic~ have transferred supervision to Florida. On June 30.
2005, there were 2,1.6I parolees in Florida (625 Florida cases
and 1,536 other state cases). On June 30. 2005. there were
5.197 inmates in the Department ofCorrections'custody who
were parole eligible.

Florida Prison Legal Perspectives

The following are summaries ofrecent stale andfederal cases that may be use/ul to or have a significant impact on Florida prisoners.
Readers should always read the full opinion as published in the Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal
(Fla. L. Weekly Fedua/); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F. 3d); or the
Federal Supplement 2d (F.Supp. 2d), since these summaries are for general information only.
.

FLORIDA SUPREME COURT
Logan v. State, 30 Fla.L.Weekly
S706 (Fla. 10120/05)
On review of the Second
District Court of Appeal's decision
in Lawrence Logan's case, Logan v.
State, 846 So.2d 657 (Fla. 2d DCA
2003), the Florida Supreme Court
concluded that the Second District's
reliance on Smith v. State, 537 So.2d
982 (Fla. 1989), for its opining that a
defendant who elects to be sentenced
under the guidelines elects to be
sentenced under the guidelines in
effect at the time of the election is
incorrect.
In Smith, the primary
holding was that the 1983 sentencing
guidelines
(which
had
been
promulgated as procedural rules on
September 8, 1983) were invalid;
~ .. however, it was held that the
Legislature rectified the invalidity
when it adopted the same rules by
statute effective July I, 1984. In
addressing the impact of that
holding, the Florida Supreme Court
determined that pursuant to Section
921.001(4)(a), Smith had the right to
elect to be sentenced under the 1983
guidelines when he was resentenced
in 1988.
The Florida Supreme Court
recognized that Smith was in a
"unique posture" because his crime
was committed before the effective
date of the guidelines, July I, 1984,
but his ~sentencing occurred
afterwards. It was also recognized
that the right to elect a sentence was
a right granted by the Legislature.
Section 921.001(4)(a) provided that
"guidelines shall be applied to all
felonies, except capital felonies,
committed on or after October I,
2.0

1983, and to all felonies, except
capital felonies, committed prior to
October I, 1983, for which
sentencing occurs after such date
when the defendant affirmatively
selects to be sentenced pursuant to
the provisions ofthis act."
Similar to Smith, Logan's
crimes were committed prior to July
I, 1984. His original sentence was
vacated on appeal, and he appeared
for resentencing after July I, 1984.
At his May 8, 2001, re-sentencing,
Logan elected to be sentenced under
the guidelines.
The sentencing
guidelines which were effective on
that date expressly provided that the
1983 guidelines applied to Logan's
offenses.
Thus, pursuant to the
expressed language of Section
921.001(4)(b)(I), Florida Statutes
(formerly
Section
(2000)
921.001(4)(a», and consistent with
Smith, the affirmative election
entitled Logan to be sentenced under
• the 1983 guidelines.
Due to the erred reliance
upon Smith, the Second District's
conclusion that "[b]ecause Logan
made his election in 200 I, he elected
to be sentenced pursuant to the
Criminal Punishment Code" is
contrary to that code's expressed
language. Section 921.002, Florida
Statutes (2001), provides: "[t]he
Criminal Punishment Code shall
apply to all felony offenses, except
capital felonies, committed on or
after October 1, 1998." Logan's
offenses were committed in 1984.
The pertinent date is the date of the
offense, not the date of sentencing.
As a result, the Second
District's decision was quashed and
Logan's case was remanded to the

district court for proceeding:
consistent with the Florida Supreml
Court's opinion.
In Re: Amendments To The Florid
Evidence Code-Section 90. J04, 31
FIa.L.Weekly S701 (Fla. 10120/05)
The Florida Bar Code 1m
Rules of Evidence Committe
recommended, and the Florid
Supreme
Court
adopted,
a
amendment to section 90.104(1 )(t
of the Florida Evidence Code nwI
by chapter 2003-259, section I, La"
ofFlorida.
The amendment
eliminates the need' of a trlE
objection in order to preserve a
evidentiary issue for appeal when til
trial judge has made a definiti~
ruling on the admissibility of tl1
evidence.
It was explained that tl1
amendment would reduce tl1
number
of
motions
fi
postconviction relief filed undl
Florida Rules of Criminal Procedw
3.850. Also, it was pointed out till
the change is consistent with c~
made to Federal Rule of Eviden,
103(a)(2) in 2000. Furthermore, ti
change eliminates the problem c
"inadvertent waiver" that preclude
an appellate court's consideration c
an erroneous ruling at trial.
The"ien v. State, 30 FIa.L.WeekI
S72S (Fla. 10127/05)
John Richard Therrien's C8l
presented the Florida Supreme Coo
with an issue of whether a persc
may be designated a sexual predatl
when the offense triggering tI
designation became a qualifyil
offense for sexual predator stab
only after the person was sentenced.

Florida Prison Legal Penpectives
When Therrien was sixteen- .
years-old he had committed a sexual ,
battery and lewd and lascivious
assault upon a nine-year-old girl. He
was prosecuted as an adult, pleading
to Count One's lesser-included
offense of attempted sexual battery
by a person under eighteen on a
person under twelve and to the
original count of lewd and lascivious
assault In August 1997, Therrien
was sentenced, where his trial court
withheld adjudication of guilt on
both counts and imposed a sanction
of probation for five years,
conditioned on an eleven month and
fifteen day suspended county jail
sentence.
The .offenses Therrien pled
to did not qualifY him as a sexual
predator at the time of his
seatencing.
See:
Section
775.21(4Xc)' Fla. Statutes (Supp.
1996), which became effective July
I, 1996. However, the Legislature
amended the statute subsequent to
Therrien's sentencing. incorporating
as qualifying offenses to include
such crimes, as he was found guilty.
See: Ch. 98-81, sec. 3, at 591, Laws
of Florida, codified at sec.
775.21 (4)(c)(I)(b), Fla. Statues
(Supp. 1998), and Ch. 2000-207, sec.
I, at 2052-53, Laws of Florida,
codified at sec. 775.21(4)(a), Fla.
Statues (2000).
More than three years after
Therrien's sentencing. due to the
amended statutes, the State sought
and was granted by the trial court to
have Therrien designated as a sexual
predator in October 2000.
The
designation was affinned on appeal. '
The Florida Supreme Court,
in its review of the case, basically
pointed out the plain clear language
of the statutes involved. The statutes
were quoted in pertinent parts, where
it was read that "[t]or a current
offense committed on or after
October I, 1993, upon conviction, an
offender shall be designated as a
'sexual predator' under subsection
(5)" if the felony is one of a number
of specified crimes. Then further, in
subsection (5)(a), "An offender who

meets the sexual predator criteria
described in paragraph (4)(a) who is
before the court for sentencing for a
current oJfinse committed on or after
October /. /993, is a sexual predator,

and the sentencing court must make a
written finding at the time of
sentencing that the offender is a
sexual predator, and the clerk of
court shall transmit a copy of the
order containing the written finding
to the departmerit within 48 hours
after entry of the order..."
The
quoted language above was included
in a revision that became effective
July I, 1996, and remained the same
through the amendments in 1998 and
2000 where the specified crimes
were changed by adding other
included
those
offenses
that
committed by Therrien.
Given the statue's plain and
ordinary meaning. the provision
requires an offender both meet the
eligibility criteria and be before the
court for sentencing on a current
offense committed after October I,
1993.
When the trial court
designated Therrien a sexual predator
in October 2000, Therrien was not
before the court for sentencing.
In conclusion, it was held
that a trial court is without
jurisdiction to impose sexual
predator designation on an offender
who, under the law in effect at the
time of sentencing. did not qualifY as
a sexual predator. Thus, the Florida
Supreme Court quashed the appeIlate
court's decision· affirming the trial
court's
order and
remanded
Therrien's case for proceedings
consistent with its opinion.

,FLORIDA APPEAL COURTS
Williams v. State, 30 Fla.L.Weekly
02304 (Fla. 4lh DCA 9/28/05)
Avery Williams' argument
on appeal regarded a trial court
preventing his defense counsel from
exploring motive or bias of the
State's witness during trial.
Williams was convicted of
burglary of a structure with a battery.

Tbe crime arose after Williams
entered an enclosed car repossession
compound, attempted to steal a car,
and was confronted by the owner,
Edward Leb. That confrontation led
to a physical altercation.
During trial, the defense's
attack on Leb's credibility hinged on
unrelated criminal charges that were
pending against Leb at the time of
the altercation with W'dliams. Some
of those charges were still pending
during Williams' trial. It was the
defense's theory that Leb lied about
his altercation with Williams, and
what Williams had done before the
fight, to minimize his own potential
criminal exposure.
Williams' counsel crossexamined Leb about his pending
charges. However, the trial court
prevented the defense from asking
Leb whether he knew that his
existing bond would have been
revoked had he been arrested for the
incident that occurred with Williams.
The appellate court opined
that such line of questioning was
proper since it went to the motive
behind Leb's initial report of the
incident to the police. For that, it
was opined that the trial court abused
its discretion in limiting the crossexamination ofthe victim.
The appellate court further
explained that a second, more
significant problem occurred during
closing argument when the trial court
sustained objections that prevented
defense from arguing that Leb was
the true criminal, having attacked
Williams, and that Leb fabricated his
story to avoid getting in further
trouble on top of his existing
charges. Because one of the officers
who responded to the scene saw Leb
with a shock absorber in his hand
standing over WIlliams and holding
him to the ground, there was a basis
in the evidence for defense to argue
that Leb was the aggressor.
As a result, Williams' case
was reversed and remanded for a
new trial.

I 2.1

Florida Prison Legal Perspectives .,
Gibson v. State, 30 FIa.L.Weekly
D2305 (pIa. 4dJ DCA 9128/05)'
On appeal, Dontay Laver
Gibson argued that his trial court
erred in allowing, over objection,
expert testimony regarding the
statistical probability of a DNA
match where State's expert lacked
knowledge of the database and the
statistical method used.
The
appellate
court
explained, in Florida, DNA testing
requires a two-step process, one
biochemical and the other statistical.
See: Butler v. State, 842 So.2d 817,
828 (pIa. 2003). Both steps must
satisfy the Frye test for validity. In
Gibson's case it was the statistical
analysis employed that was at issue.
As to that analysis, a properly
qualified expert must testify as to the
qualitative or quantitative estimates
demonstrating the significance of the
DNA match. The qualified expert
must demonstrate a sufficient
knowledge of the database grounded
in the study ofauthoritative sources.
In a similar case, Perdomo v.
State, 829 So.2d 280 (pIa. 31ll DCA
2002), the defendant objected to the
DNA expert's qualifications to
testify as to the statistical analysis of
Jhe DNA match arguing that he was
not a statistician or a mathematician.
The court sustained the objection
pending the state's showing of a
predicate for the admission of the
testimony. In Gibson's case, the
court did not even require a predicate
from the state before overruling
Gibson's objection. In Perdomo it
was held that the state must prove by
a preponderance of evidence that an
expert testifYing about DNA
statistical .and population genetics
analysis has sufficient knowledge of
the database grounded in the study of
l\uthoritative sources.
Like in Perdomo, the expert
in Gibson's case never identified,
much less displayed, sufficient
knowledge of the database or method
she used for the statistical componeni
of her opinion. At no point did the
expert explain what method she used,
2.2. nor did she demonstrate· any

knowledge of the authorities
pertinent to the database. Only by
way of an example, the expert
merely testified that the "formula"
used in the calculation of the
statistics used in the case was one
reoommended by the National
Research Council. The appellate
court deemed that this was
insufficient.
Following the Perdomo
court, the appellate court opined that
the matter must be remanded for a
limited evidentiary hearing to
determine whether the expert had
sufllcient
knowledge
of the
authoritative soun:es to present the
. statistical evidence.

King v. State, 30 Fla.L.Weekly
02297 (Fla. 2d DCA 9128/0S)
Regarding
claims
of
erroneous
sexual
predator
designations, the Second District
Court of Appeals has opined that
challenging such claims in a civil
proceeding has not proven ~ be a
workable mechanism to resolve
them.
The. Second District is
convinced that the approach taken by
the Fifth District is more appropriate.
See: Nicholson v. StlJte, 846 So.2d
1217 (Fia. S· DCA 2003), and
Cobrera v. State, 884 So.2d 482 (Fla.
S· DCA 2004). In those cases, the
sexual predator designation was
treated as an order that can receive
appellate review and posteonviction
challenge as if it was a sentencing
order. Thus, the Second District has
receded from its numerous prior
opinions regarding such claims.
The Second District went on
to explain, to awid corifusion in the
matter, a sexual predator designation:
(I) may be imposed or modified after
sentencing without regard to the time
limits established in Rule 3.800(c);
(2) may be directly appealed as a
portion .of a sentence under Rule
9.l40(bXI)(E); (3) may be directly
appealed under Rule 9.l4O(bXl)(D)
if it is entered after the time to appeal
the judgment and sentence has
expired; (4) may be challenged under

Rule 3.800(b) in order to preserve
the issue for direct appeal; and, (5)
may be challenged like a sentencing
issue by postconviction motions
pursuant to Rules 3.800(a) and 3.850.
A party in the Second
District should no longer file any
civil motion or proceeding to
challenge
a
sexual
predator
designation. However, because the
Fourth District has followed the prior
opinions the Second District has now
receded from, the Second District
was compelled to certify direct
conflict with the Fourth Distric1
regarding the issue.

Kepner v. State, 30 Fla.L.Weeki)
D2299 (Fla. 41b DCA 9128/05)
On appeal, Mark A. Kepnel
argued that his trial court erred it
fiilling to renew its otTer 'oJ
appointing assistance of COURSe
prior to sentencing.
Apparently, Kepner hal
chose to tum down the trial COurt'l
otTer of assistance of counsel prior tc
the trial proceedings, and Kepnel
represented himself. However, tIu
trial court did not renew the
assistance of counsel offer prior tc
sentencing.
The appellate cour
opined that this was error.
Rule 3.111(dX5), Floridl
Rules of Criminal ProcedUJ'll
provides that an otTer of assistance 0
counsel shall be renewed by th
court at each subsequent stage of th
proceeding at which the defenda11
appears without counsel. "Even if I
defendant
does
not
reques
appointment of counsel,
thi
omission [by the defendant] is n(l
considered a knowing waiver of tb
right to counse"" See: Hanly"
State, 6SS So.2d 1245, 1247-124l
(pia. Sib DCA 1995).
As a result, Kepner'!
sentencing was reversed 8I1l
remanded for resentencing.
Ford v. State, 30 Fla.L.Weekll
D2434 (Fla. 2d DCA 10/19/0S)
Henry Ford had tiled a Rul
3.8S0 motion within his circuit cow
alleging newly discovered evi~

Florida Prison Legal Perspectives
Subsequently, the lower court
applied a standard used for evidence
discovered after a defendant has been
convicted at trial and denied his
motion.
However,
Ford's
convictions were a result of pleas.
Therefore, on appea~ the
appellate court opined that "the
circuit court should have applied the
more appropriate standard for
withdfawal of pleas after sentencing,

Subsequent to an evidentiary
hearing, Maxime Julien appealed the
denial of his claim of ineffectiv~
assistance of coWlSel in failing to
inform him of his option to apply for
the Pretrial Intervention Program
(PTI).
A first-time offender, Julien
pled guilty to grand theft and was
placed on probation. As a result of
his plea, the United States

which requires the defendant to
prove that withdrawal of his plea is
necessary to correct a manifest
injustice... See: Bradford v. Stote,

commenced removal

869 8o.2d 28, 29 (Fia. 2d DCA
2004).
The appellate court further
explained, as it was in the Bradford
case, Ford's motion. was facially
insufficient because it failed to allege
that plea withdrawal was necessary
to correct a manifest iqjustice.
Ac:c:ordingly, the trial court's denial
was affirmed without prejudice to
Ford's right to file a timely, facially
sufficient Rule 3.850 motion to
withdraw plea based on his newly

discovered evidence.
Cole v.

State, 30 Fla.L.Weekly

D2467 (Fla. 5111 DCA 10121105)
Jeffrey Allen Cole filed his
RuleJ.8S0 motion in the Citrus

County Circuit Court which was
subsequently denied as being a
successive motion. The lower court
further directed the Department of
Corrections (DOC) to forfeit 90 days
of Cole's gain-time. Cole appealed
the decision.
In affirming the denial of
Cole's motion, the' appellate court
further opined that a trial court is not
authorized to direct QOC to forfeit
any amount of gain-time as a
sanction. A trial court can send a
certified copy to DOC of an order
showing that the prisoner has filed" a
frivolous or malicious pleading and
recommend a sanction.
The order that directed DOC
to forfeit the gain-time was stricken.

Julien v. State, 30 Fla.L.Weekly
D2438 (Fla. 46 DCA 10/19/05)

.p~

to

rescind Julien's permanent residence
status and remove him to Haiti.
Subsequent to his filing for
postconviction relief, a lower court
granted an evidentiary hearing on
Julien's ineffective assistance of
counsel claim.
At the hearing,
although: Julien testified that his
coWlSel failed to advise him of the
PTI program and that he would not
have entered the guilty plea if he had
been aware of the program and
would have applied for it; Julien's
interpreter testified he never heard
coWlSel discuss the PTI program; and
the Public Defender that represented
Julien testified he might not have
discussed the PTI program with
Julien and that he did not have a
general habit in doing so with his
clients, the lower court denied
Julien's postconvictioti relief motion
without stating any reasons.
Florida Rule" of Criminal
Procedure 3.17I(c)(2)(B) places a
responsibility upon defense counsel
to 'advise a defendant of all plea
offers and, "all pertinent matters
bearing on the choice of which plea
to enter and the particulars attendant
upon each plea and the likely results

thereof, as well' as any possible
alternatives that may be open to the
defendant." (Emphasis added)
It was noted also that
Mickey Rocque, a trial lawyer and
law professor~ testified as an expert
in the area of criminal law at Julien's
evidentiary hearing. 'Rocque was
very familiar with the PTI program
because he helped draft the current
PTI statute. He had explained· that
the PTI program is a possible
alternative available to a first-time

offender. For a first-time offender
facing immigration consequences,
the program is criticaJ. A defendant
derives a tremendous benefit by
having his charges dismissed after
completing the program.
After the appellate court
considered all the factors before it, it
concluded that the defense counsel's
failure to inform Julien of this
possible alternative constituted a
deficient performance. Furthermore,
the appellate court agreed with Julien
that he sufficiently met the
Stric/dand v. Washlngron, 466 U.S.
668 (1984), prejudice prong by
,demonstrating
a
reasonable
probability that, but for counsel's
error in failing to advise him of the
'PTI alternative. he would not have
pleaded guilty but instead would
have applied to the PTI program.
As resuh of the appellate
court's findings, the denial of
Julien's motion for postconviction
relief was reversed and remanded
with directions to give him the
opportunity to withdraw his plea.

Macaluso v. State, 30 FIa.L.WeeIdy
02494 (Fia. 2d DCA 10128/05)
The Second District Court of
Appeals stressed an important point
that must be followed to file .a
filciaUy sufficient Rule 3.8OO(a)
motion that attacks the lePJity of a
habitual, felony offender (HFO)
sentence. (See also Rule 3.800(a)
motion article in this FPLP).
The defendant, when he filed
his Rule 3.800(a) motion in this case;
merely alleged that his prior
convictions in the record's prosentence investigation report did not
establish the required predicate for
sentencing him as an HFO.
A facially sufficient attack

, requires

the

defendant

to
the
predicate prior convictions do not
exist as a matter oflaw. See: Bover
v. State, 797 8o.2d 1246, 1247 (FIa.
2001). See also: Judge v. State, 596
affirmatively

allege

that

So.2d 73, 78 (Fla. 2d DCA 1991)
("[W]e conclude that a habitual
offender sentence is illegal for

2.3

Florida Prison Legal Perspectives
purposcs of rule 3.800(a} only if...a
prior offense essential to categorj;,·"c
the defcndant as a habitual offendcr
docs not actually exisL")
Although the defendant in
this case failed to file a facially
sufficient motion in thc lowcr court,
in the appellate court it was opined
thai the lower court erred in dcnying
the Rulc 3.800(a} motion wilhout
determining the facial sufficiency

before ruling on its merits.
Therefore, the denial was
reversed and the case remanded with
instructions for Ihe lower court to
enter all order of dismissal.
[Note: From an order of dismissal,
the defendant should have the
opportunity to file a facially
under
Rule
sufficient
motion
3.8oo(').J

Muhammad
v.
Crosby,
30
Fla.L. Weekly 02552 (Fla. III DCA
lin/OS)
Akeem Muhammad appealed
a denial of his petition for ....Til of
mandamus/certiorari wherc hc had
requcsted a lower court to direct
James Crosby, Jr., Secrclary of the
Department of Corrections, to refrain
from enforcing a prison rulc that
requires him 10 be clean-shaven.
Muhammad explained that thc rule
has placed a substantial burden on
his exercise of Islam, which is
prohibited by Chapter 761, Fla.
the
(Fla.)
Religious
Statutcs,
Freedom Rcstoration Act of 1998
(RFRA).
The DOC rulc lhat was at
issuc in this case requires inmatcs to
be clean-shaven, and to submit to
forced shaving if lhey refuse.
Because Muhammad had refused to
comply with the rule, he was
sentenced to 30 days of disciplinary
confinement, forced shaving, and
loss of gain-time. This discipline
was upheld on administrative appeal
and Muhammad continued to be
subjected to forced shaves.
When Muhammad filed his
petition, the lower court placed a
$280 lien on his prison account to

24

I

cover the filing fee, pursuant to
Section S7.0SS(S}, Fla. Statutes
(2004). However, the lower court
had denied Muhammad's petition.
The reason given for the denial was
that Muhammad should have made
his request in an aClion for
declaratory relief.
On appeal, it was noted first
that Section 761.03(1), Fla. Stlltutes
(2004), providcs that the government
"shall oot substantially burden II
person·s exercise of religion, even if
the burden results from a rule of
gener:'!1 applicability."
Section
761.02(3}, defines "exercise of
religion" as "an act or refusal to act
that is substantially motivated by a
religious belief, whether or not the
religious exercise is compulsory or
central to a larger systcrn of religious
belief."
Muhammad, being a
Muslim,
asserted
that
Islam
commands male adherents to wear a
beard the size of a fist or the next
shorter length possible.
Contrary to the lower court's
denial, the appellate court opined that

mandamus was fhe appropriate
vehicle for Muhammad to attempt to
show the circuit court that DOC's
grooming
policy
substantially
burdens his free exercise of religion
in violation of Section 761.03. See,
e.g., Henderson v. Crosby. 891 SO.2d
1180 (Fla. 2d DCA 2005). See also:
Sc1ullidt v. Cru.me, 878 So.2d 361,
363 (Fla. 2003) (observing that when
a court must interpret :'! relatively
new statute 10 detennine whether the
petilioner has a clear legal right and
respondent has a clear legal duty
under the statute, Ihis "does not make
the right any more or less 'clear'" for
purposes of mandamus relief). As a
result, the appellate court determined
to direct the lower court to address
the merits of Muhammad's claim
under Chaptcr 761. [In nole 2 it was
depicted that although the lower
court is without jurisdiction to
prohibit
DOC
from
cutting
Muhammad's beard for religious
reasons, because courts are not
authorized to regulate treatment of
inmatcs, the court does have

jurisdiction to consider his challenge
to the validity of DOC's shaving
regulation on religious grounds. See:
Moore v. Habibullah, 759 SO.2d
1281 (Fla. SdI. DCA 1999); and
Sing/elary v. Duggins, 724 SO.2d
1234 (Fl•. 3d DCA 1999).1 The
appellate court in MUMmmad's case
also cited a California case,

Maywealhers v. Terhune, 328
F.Supp. 2d 1086 (E. D. Cal. 2004)
(holding that the Ca\ifornia State
Prison regulation requiring inmates
to be clean-shaven was not the least
restrictive means for achieving a
compelling governmental interest,
and thus violated Muslim inmates'
religious rights under the federal
counterpart ofRFRA).
In regards to the lower court
placing a lien against Muhammad's
prison account, the nppellatc court
opined that such an order was error
because. Muhammad lost gain-time
as a consequence of his refusal to
shave.
Under Schmit, M., any
challenge to discipline that results in
loss of gain-time is a collateral
criminal proceeding. See: Section
57.085(IO}, Florida Statutes (2004).
Regarding
the
aforementioned issues, the appellale
COur1
reversed
and
remanded
Muhammad's case for further
proceedings consistent with its
opinion.
PoliCon v. Slate, 30 Fla.L. Weekly
D2S33 (Fla. 4· DCA 1112105)
Osvaldo Palazon did not
receive a final hearing when his
conditional release was revoked
because an allomey that had
represented him faxed a letter to the
Parole Commission stating Pala.zon
waived the hearing. In a petition for
writ of habeas corpus filed with the
circuit court, Palaron maintained that
he did not waive his right to a final
hearing. nor did he authorize anyone
else to do so in his behalf. The lower
court denied Palazon any relief and
he sought review of the denial in the
Fourth Dislrict Court of Appeals.
In reviewing the denial, the
Fourth District treated Palazon's case

Florida Prison Legal Perspectives
as a petition for writ of certiorari
seeking review of an order from the
circuit court denying Palazon's
petition. It was pointed out in this
review Section 947.141(3}. Florida
Statutes (2004) provides that if a
releasee is charged with violating
conditional release. the releasee must
be afforded a hearing within 45 days
after
notice
to
the
Parole
Commission of the releasee's arrest
Also. Florida Administrative Code.
Rule 23-23.011(4)(c). states that a
conditional release violation hearing
"may be waived by the releasee after
an explanation of the consequences
of a waiver. The waiver shall be
executed before a Commissioner or
duly authorized representative of the
Commission.
Furthermore, in State v.
Upton. 6S8 So.2d 86 (Fla. 1995). it
was held that a lawyer's written
waiver is insufficient to waive a
defendant's right to a jury trial. The
concern about such a waiver was that
it must be entered knowingly and
vo\untarily.
FAC, Rule 2323.01 I (4Xc)'
embodies
similar
concerns.
Consequently. the circuit
court's denial order was quashed,
and Palazon's case was remanded for
the Parole Commission to conduct a
final hearing on Palazon's violation
of conditional release.

Ranes v. State. 30 FIa.L.Weekly

D2533 (Fla. 4lb DCA 11/2/0S)
Andrew Ranes appealed a
trial court's denial of his petition for
writ of habeas corpus. The reason
given for the denial by the trial court
was a finding that the petition was
impermissibly successive because
Ranes had filed a previous petition
seeking the same relief.
However.
the
previous
petition was denied as legally
insufficient, it was not denied based
on the merits of Ranes' claim. Ranes
alleged in the petition that he had
retained counsel
to
file
a
postconviction motion, but counsel
failed to do so. See: Fla.R.Crim.P.

3.850(b)(3). and Steele v. Kehoe. 747
So.2d 931 (Fla. 1999).
The appellate court found
that the trial court denied Ranes'
petition as successive in error.
because the trial court had not ruled
on the merits of the case when it
denied Ranes' first petition. Also.
the appellate court opined that based
upon the copies of letters Ranes
included in his initial brief showing
his attorney's intentions to file a
postconviction . motion.
Ranes'
petition adequately set forth a claim
for relief under Steele. Due process
entitled Ranes to a hearing on his
legally sufficient claim.
The trial court's denial was
reversed and Ranes' case was
remanded for an evidentiary hearing.

Cillo v. State.' 30 Fla.L.Weekly
D2S56 (Fla. 2d DCA 11I9/05)
On appeal. Frank P. Cillo
challenged a lower court's denial of
his second-time-around (successive)
Rule 3.800(a} motion, where he
claimed that his sentence was illegal
because it exceeded the statutory
maximum.
Apparently, Cillo had filed a
previous motion raising the same
issue, and it was denied and affirmed
in the appellate court. See: Cillo v.
State. 884 So.2d 29 (Fla. 2d DCA
2004).
Thus•. the lower court's
reason for denying the second-timearound motion.
Originally.
Cillo
was
convicted of three second degree
felony offenses. The lower court
sentenced Cillo to three concurrent
terms of 12.75 years prison followed
by two years of community control
and thirty years of probation, a total
of 44.75 years. Cillo argued that
because the offenses were second
degree felonies, run concurrently, the
maximum sentence he could receive
was fifteen years unless the
sentences
were
imposed
consecutively for a total of forty-five
years. .In denying Cillo's claim, the
lower court reasoned that because the
lowest permissible sentence of 12.7S
years.
according
to
Cillo's

scoresheet, did not exceed the
statutory maximum of forty-five
years. the lower court was within its
discretion to sentence Cillo to 44.7S
years.
Typically. Cillo's claim
would
have
been
collaterally
estopped.
However. the ~econd­
time-around in the appellate court the
State conceded that Cillo's sentence
was illegal and the appellate court
was compelled to correct a manifest
injustice. See: McBride v. State. 848
So.2d 287. 292 (Fla. 2003)
("[C]ollateral estoppel will not be
invoked to bar relief when its
application. would result in a
manifest injustice.ttl.
The appellate court opined
that CiIlo's sentence. which included
the pris,?n portion as well as the
community control and probation
portions cannot exceed the statutory
maximum of fifteen years.
A
sentence of incarceration and
probation
cannot
exceed
the
maximum period of incarceration
provided by law. unless the lowest
permissible sentence under the
criminal punishment code exceeds
that statutory maximum.
The lower court's denial was
reversed and Cillo's case was
remanded for resentencing.

Kahane v. State. 30 Fla.L.Weekly

02645 (Fla. 4th DCA 11/23/05)
. Michael 1. Kahane. after
being prohibited from filing any
further pro se filings in connection
with his St. Lucie County case, filed
a Rule 3.800(a) motion regarding his
incarceration in a Martin County
case. The Martin County Circuit
Court struck the pleading because of
the ordered prohibition from the
other county's court.
On appeal, it was noted that
such an order of prohibition was not
entered in the Martin County Circuit
Court case.
Regardless of that
notation, the appellate court opined
that if Kahane filed a legally
sufficient Rule 3.800(a) motion, the
circuit court shall consider that
motion on the merits.

I 2.S

Florida Prison Legal Perspectives
Accordingly, the Martin
County Circuit's order striking
Kahane's motion was reversed.

I

U t 'I

Guide offers assistance
to transitioning veterans

Veterans leaving prison will find help
for
the transition with "Planning for Your
Williams v. State, 30 Fla.L.Weekly
Release:' a guide for incarcerated veterans
02569 (Fla. 4th DCA 1119/05)
On motion for rehearing, the offered by the National Coalition for
Fourth District Court of Appeal .' Homeless Veterans (NCHV).

withdrew its prior opinion in Daryl
Williams' case. (Original opinion is
at 30 FIa.L.Weekly DI249i.)
In substitution of that
opinion, the Fourth District affirmed
the denial of Williams' Rule 3.800(a)
motion, which claimed that his
written sentence does not conform to
the
lower
court's
oral
pronouncement.
It was noted by the Fourth
District that Williams' motion was
unsworn where it had claimed that
the judge sentenced Williams to
eleven years but the written sentence
depicted fourteen years seven
months. It was also explained that
the reason for its affirmation, no
attachments, such as transcript of the
sentencing
proceeding,
were
inclUded. Thus, the appellate court
certified conflict with Fitzpatrick v.
State, 863 So.2d 462 (Fla. III DCA
2004), and Berthiaume v. State, 864
So.2d 1257 (Fla. Sib DCA 2004).
It was then concluded that a
mere allegation of a difference
between the oral pronouncement and
the written judgment is insufficient
to comply with the Rule 3.800(a),
FIa.R.Crim. Procedure. Therefore,
the Fourth District also certified
conflict with Watts \I. State, 790
So.2d 1175 (FIa. 2d DCA 2001), as
to the issue of whether a mere
allegation that a written sentence
does not comport with an oral
pronouncement is sufficient to raise a
Rule 3.8oo(a) claim. It was further
noted that, unlike Rule 3.850(d),
Rule
3.800(8)
contains
no
requirement that the trial court attach
portions of the record that
conclusively refute the allegations of
themotion. •

26 I

The 24-page booklet details resources specifically
available to veterans as well
as those for both veterans
and nonveterans. It covers
NATIONAL
housing, finding and keep- COALITION
ing a job, health. substance
for
abuse and mental health
BOHELIlSS
treatment, financial and
VETERANS
legal help, and women veterans. Toll-free numbers and addresses are
included. In addition, the booklet explains
federal benefits available to veterans and
how to pursue them.

T y,:P I, N"G
.

S·ER:VICE·
Computer ..

ALL KINDS
TYPING
....,OF
-,

Including but ~II"'-ltedto:
.. ",Srlefs,'JeX\·Ooc:uments.
.Newsletlers.,Artfcles, Books.
.ManuscDPtS.Oatabase. Charts.

Fonns; fIYe.:s~EnveIOpes. ETC.

Black'! ~olor PI:Intlng&. Copying

''''P€S''.'' BAljSfQBeRIIQNfR'"

FoRA."_~PRI~U~T'AND
MORE INFORM.(\TJON SEND A

.

SASE TO:

LET M Y.FI NG ER S
D·O YOUR TyprNG'
"

To receive the booklet. ask family or
friends to download it for you from the
NCHV website. www.nchv.org; call (202)
546-1969 or 800.VET-HELP; or write
NCHV. 333 1/2 Pennsylvania Ave. S.E.,
Washington, DC 20003-1148.
[ __ .on

Typewrlte~

'.

,"

sandraZ. ThonIas

POlloi 4178'·

~r Pm,FL 32793-4178,

, Phent: 401-57N563 .

--CORRECTION...

1

page 8, an article entitled "Closing the DNA
Exoneration Door" was published. That article .
discussed the (then) scheduled October 1, 2005,
expiration of 8 200I Florida court role that provided a
~ 4-year window to Florida prisoners to petition the ~
courts for DNA testing to prove their innocence-if ~
they took their cases to trial. However, on Sept. 29, ~I
three days before the window was set to expire, the
Florida Supreme Court .amended the role, 3.853, Fla. ,
R. Crim.P., to delete the 10/1/05 time limit and ~
changed to 7/1/06. Thus, extending the time allowed to
petition for DNA testing for 8 months. The extension
came when the Florida Bar moved/proposed that the
time limit be stricken all together. The S. Ct. made the
amendment to give it time to consider the Barts·
proposal. See In Re: Amendment to FIa.R.Crim.P. ~
3.853(d). 30 Fla. L. Weekly S661 (Fla. 9/29/05).

!

I

,

I

[EdItor's Note: Legislation bas been prefiled for the =
2006 regular legislative session that, if passed and ,
made law, would completely remove the time limit on a

L~~~,",~:L!«..-..

•• __---I

Florida Prison Legal Penpectives

BUDGET
BUDGET
DEPARTMENT OF CORRECTIONS
BUDGET SUMMARY
(FY 2004-05)
Operating Funds
Expenditures by Budget Entity:
Departme.nt Administration
Security and Institutional Operations
Health Services
Community Corrections
Infornlation Technology
Programs
Total Operating Funds

"

'

:~

~

. S 58,729,772
1,202,002.591
.
315,486,894
,
243, J72,469
.
23,322,664
.
..
42.986.848
.. $1.885.701,238

Fixed Capital Outlay Funds
To Provide Additional Capacity
, To Maintain Existing Facilities
Total Fixed Capital Outlay Funds
Total

S

80,193,036
2.868.834
S
3,061.870
SI,968,763.108

Local Funds
Collection Activities:
Cost of Supervision Fees
'
Restitution. Fines, and Court Costs
.';
Subsistence, Transportation, and other Coun-Ordered Payments
Inmate Banking Activities:
Total Deposits
Total Disbursements
June 30. 2005 Total Assets
Other Activity:
Revenue from Canteen Operations
Inmate Telephone Commissions

.. $27,061.99\
.
57.956.233
.. 19,782.796

..

:

.
.

$85.009,685
85.545.563
9.676,057

.
.

$20.986.632
16,335,212

Florida Prison Legal Penpectives
FLORIDA DEPARTME~T OF CORRECTIO~S

BUDGET
FY 2004-05 Correctional Budget
Total Expenditures $ 1,885,701,238
Department
Administration
$58,729,772
(3.1%)

Information
Technology
$23,322,664
(1.2%)

Health Services
$315,486,894
(16.7%)

Community
Corrections
$243,172,469
(12.9%)
Security and
Institutional
Operations
$1,202,002,591
(63.7%)

Programs
$42,986,848
(2.3%)

Inmate Cost Per Day for FY 2004-05
$49.61 ($18,108 annually) (Major Institutions Only)
Security $29.23
(58.9%)

Physical Plant
$3.34 (6.7%)

Medical $10.62
(21.4%)
Insurance $0.13
(0.3%)
Education $0.99
(2.0%)
Inmate Services
$0.71 (1.4%)

Clothingl
Laundry $0.51
(1.0%)

Florida Prison Legal Perspectives

..

FLClRIDA DEPARTMEXT OF CORRECTlO~S

BUDGET
Sumlnary ofAverage Inmate Costs (FY 2004-05)
TYPE OF FACILITY .

AVERAGE
TOTAL
HEALTH EDUCATION
POPULATION PERDIEM OPERATIONS SERVICES SERVICES

78.737

TOTAL ALL DEPARTMENT FACILITIES (EXCLUDING PRIVATE) (3)
TOTAL MAJOR INSTITUTIONS lEXCLUDING PRIVATE)' 'S~~');~';i" ;.\C Ai

.

~--~ ,

;,',

549.60

18:6431,: /;. $49;6~, '

"

$37.71

$10.66

$1.23

":,sauo

$10.67

,51.23:

44,456

' $40.92

$34.27

$5.62

$1.03

MALE YOUTHFUL OFFENDER CUSTODY

2,870

$57.97

$46.88

56,79

$4:30

RECEPTIONS CENTERS

6,617

$85.57

$45.70

S39.07

SO.80

ADULT AND YOUTHFUL FEMALE CUSTODY (2)

4,043

$62.10

$42.90

$16.92

52.28

SPECIALTY INSTrn.'lIONS

18,247

555.63

$41.78

$12.58

$1.26

WORK RELEASE CENTERS

2,410

534.50

$28.58

$5.46

50,46

PRIVATE INSTITUTIONS (i) (3) .

4,309

$55.39

$54.94

$0.45

$0.00

93

$43.42

$43.42

SO.OO

$0.00

ADULT MALE CUSTODY (1)

PROBATION AND RESTITUTION CENTERS'& BRADENTONDTC

These lacililiCl' cxcludc dcbt servicc COS1~. \,.. hieh if includcd \\'ould increase Ihc de!':tnmc11l', avcrage ma,illr il\~lill1lion I'cr dicm b~ 50,1 ~ and the
pri\'ute in~tilution~' per diem by 54. 7~,
"
(2) !\Is(' ~cl'\inl! as reccplion eCt1lerl' tBrowurd CI and Lowcll Cllior female inmales.
l:t) Per diclIllil.lurCl' du not includc indirect and administration eosts of $4.39 lor major institulions (,OpcnJti(\lls 52.21, health ~el'\ices StU I. 'cdUeali(\l;
50.22. sullstanec abuse $0.04. and dcpartmclltal administration 51.61). and SO.!!~ for private institllliuns.
NOTE: AdministrJlion cvsts equal 3.06% of\tllal Depanmenl cxpcnditurel'.
III

Inmate Cost Per Day by Type of Facility

$90
$SO

570 ; a.....,..:aiQ.~.~~
$60
$50
$40
$30

$20,
$10 ;

~ 'AQlI

I'lMIt

Malt

IlISL

~bJr AlIl:ItJID Sprda/l) Rm¢m>
\'oatW FcaU
IIIIL C,1ilm
OtTtlldtr

. Percent of'State General Revenue Budget
Appropriated to Corrections
8.0%
8.0%
7.9%
7.9%
7.8%
7.8%
7.7%
7.7%
7.6%
7.6%

99-00

00-01

01-02

02003

03-04

04005

, 29

Florida Prison Legal Penpeetives
-

INMATE POPULATIO~ ON JUNE

30, 2005

• There are 20,568 more inmates in Florida p~s~~:s:~~ay,;~han there were 9 years ago.

Inmate Population
I

1917

1956

as:of jUne 3Oth of E~ch Year
1.

1.

2OlIO

2001

2002

2003

2llO4

2005

64,333

64.713

86,210

'81m

71,233

72,007

73.553

n,318

8t,974

84,801

10,782

61.212

11.7.

l4.1li

17,214

87782

69,164

72,520

78875

79,221

3,551

3,431

U12

:3,833

4,011

4,245

4,381

4.796

5,299

5.610

Whito

28,988

27,518

21.235

2llAOS

SO,8ll4

31,308

32,384

34.588

36,935

38.874

Black

38.1110

35.174

38••

31.718

38,179

38,852

39,239

40.583

42,572

43.308

Othor

1.245

1,321

1.m

1,478

UIO

1,147

1,930

2,145

2,467

2.721

White Males

25,437

26,048

a.m

27.118

2ll,ll94

28,373

30,383

32,244

34,202

35,713

Black Malos

34,123

34.014

34.m

3S.I24

38,152

38,784

31,121

38,412

40.251

40,114

OthllrMlIles

1,222

1,2Z0

1.258

1.324

1.488

1805

1880

1,864

2,214

2,444

While Females

1,551

1,470

1,S04

1,517

1.

1,935

z.001

2,344

2.733

3,081

Black Females

1,177

1,S1O

1.nt

UN

2,027

2,081

2,118

2,171

2,313

2,322

Other Famalos

23

'101

·m

112

182

242

270

281

253

m

JOTAL

I

GENDER BREAKDOWN
Males

Fema18s

RACE BREAKDOWN

RACEIMALES BREAKDOWN

lRACEIFEMALES BREAKDOWN

Summary of Florida State Correctional Facilities

Correctionallnstitutions* **
Work Camps, Stand Alone
WorkIForestry Camps
Treatment Centers
Work Release Centen
Road Prisons
Total Facilities
Contract Jail Beds
Population Total
•

30

I

59

6

71,702

84.5%

10,031

11.8%

84

0.1%

2,630
412
84,859
42
84,901

3.1%
0.5%
100.0%
0.0%
100.0%

37

35

2

1

1

26

19

°

5

5
'1l3

128

7
0
15'

Insliluliuns wilh 5C1"~r:lle unil~ nnd hospilllis nre tounted l1lO one tll$lilutlon. 1ltC!lC inSlilution~ lire Apalachec: Ensl and West unit~; CI'RC Main. Ensl 3Jtd
Soulh unils: Gulfel Mnin and Annex unil~: Hamilton el Main and Annex unil~: libcn): CllInd Quincy AnncJI: Lowell rl. LtlWclll\nncJI and Bout
Cam!" units; New River ("' E~t nnd Wesl unils; RMC Mnin IIn~ Wall.unils:South Floridn RCCCJ1tiun {'elller (SI:R{'1 nnd SFRC Suuth: Sumler Cland
UOOI <.'lImp unils: and Taylor CI Main nnd AnncJlllniL~. The tollli indudes Ii\'c pri\'ale torretlional facilities... fronklin <.:J bcJ:lln rctcivinll inmates July
11. :U1l5,

..

Florida Pl'ison Legal Perspectives
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