FLORIDA PIUSON LEGAL

ers ectives
lSSN# 1091-8094

VOLUME 15 ISSUE 1

JAN/FEB 2009

constitutionality at the Safe Streets I.nitiative of 1994
(hereinafter "The Act").
The .Act amended section 944.275. Florida Statutes
by Melvin Perez
(1993). to restrict the. awarding of basic gain time to only
those prisoners who were sentenced for crimes committed
prior to January 1. 1994. See: Ch. 93~06, § 26 at 2958'On December 4, 2008, the' Florida Supreme Court
60. Laws of Florida.
revisit its prior ruling in Schmidt lI. Crusoe. 878
. Cox argued that the Act violated the single-subject
So:2d J61 (Fla. 2003). The case came before the Court on
provision of article III. section 6, Florida Constitution. and
a certified question of great public importa~ce from the
that he had been unlawfully deprived of more than five
First DCA's ruling in Cox lI. Crosby, 31 Fla. L. Weekly
years ofbasic gain time under the Act. .
0310 (Fla., ISf DCA; Jan. 26. 2006XHawkes, J.,
The. Florida Supreme Court transferred the petition to
dissenting). ,"
.
.
the circuit court for Leon County, Second Judicial Circuit,
The First DCA in Cox. supra. held that, "if appelJanes . which treated the filing as a petition seeking both
claim is successful the result would be that his time in
declaratory relief(with JllSpect to the single-Subject claim)
prison would be 'directly affected,' i.e., significantly
and mandamus relief(with respect to the gain time claim).
reduced.' We are, therefore. constrained to conclude. that
The ~econd Judici~l Circuit Court found Cox to be
this proceeding is a 'collateral crimlnal' one a~ defined by'
indigent and applied. ~e prepayment lien requirements of
our supreme court in Schmidt."
the prisoner indigence statute. section 57.085, Florida
The question before the Court as rephrased was, "Does
Statutes (2005). Thereafter, the lower court denied Cox's
the holding in Schmidt lI. Crusoe,' 878 So.2d 361 (Fla.
petition.
"
. 2003), extend to all gain time actions, regardless of. their
Cox then' filed· a notice _of appeal and a motion to
nature, in which, if successful, the complaining party's
proceed as indigent The trial court certified .Cox as
claim would directly affect his or her time in prison,.so to . indige~t forappelJate purposes and again determined that
preclude imposition of a lien on the inmate's trust aecoun! . the" prisoner indigence $tute was applicable.
to recover appiicable fil\ng fees?"
.
." Cox filed' in the ,First DCA a "Motion for Review,"
C~x who was convicted of second degree ~urder on
. wherein. he argued tha~ under Schmidt, supra (Schmidt I),
April 16, 1995, and· was sentenced to twenty years
his proceedingS in both the ci~uit 'and district court; were
imprisonment, filed a petition for writ of habeas corpus to
"cQllateral criminal. proceedings" and not subject to the
the Florida Supreme Court challenging the
prisoner indigence statute or prepaymeJ'lt Hell provisions
ofsame.
'.
,

Florida .SupremeCourt Revisits·
Schmidt v. CrUsoe

"
I· [§J
ON

, THE

".

.INSIDE,

Reversal in ConStructiv~ Possession Case
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:••••..•.....•••".....••.•.•.....•.•.••••...... ~ ...•................ S
Post Conviction Comer;
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Notable Gases
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ll
2009 Resource List
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1S'
Questions & Answers
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20
From the editor

DOC's Argument
.
DOC argued that the Court should answer the certified
question in the negative. quash the First DCA's decision.
and adopt the reasoning of the dissent opinion. Further.
DOC asserted that Co~'s case differed from Schmidt I in
several ways. These ~ere that: .

of

(a) The pri~ner in' Schmidt I challenged the decision
the Qept. to revoke his gain time. while Cox challenged
the constitutionality ofa legislative act;
(b) The prisoner in Schmidt I was seeking to recover gain
time that had, already been awarded. while Cox sought to
obtain gain time that had never been awarded;
(c) Schmidt was. required to act within rigid time frames.
while Cox was not required to do so; and.
(d) Schmidt's claim was based on unique facts peculiar to
his case. while Cox's claim involved general facts that
. applied to other prisoners as well.

Mo~ver. DOC contended that the test used by the
DCA· in applying the prisoner .indigence statute was, an
incorrect standard .and will open the floodgates· to
prisoners' statutory validity claims.
Last. the Dept. claimed that to allow prisoners to file
such actions free of cost, while requiring private citizens
to pay filing fees and court costs for similar actions. was
fundamentally unfair.
Court's Bolding
The Court in answering the certified question as
rephrased in the affirmative and approving the DCA's
ruling stated. "We c~nclude that each .()fthe Department's
arguments misses the mark...." The Court further held
that: '

• The procedural posture of the pri,soners in Schmidt I and
Cox were sufficiently similar for sedion 57.085 purposes..
• It was irrelevant under Schmidt I whether the claims
involved "revoked" gain time versus "withheld" gain time.
or whether the prisoners acted within rigid time frames
versus, general time frames or whether the cases involved
unique facts versus general facts.
.,
.
• The' analysis in Schmidt I was clear-cut: the prisoner
indigence statute was intepded "to discourage the filing of
',frivolous civil lawsuits" with respect to prison conditions.
not "to prevent the filing of claims contesting the
computation ofcriminal sentences." .
.
'. The standard used by the DCA was not incorrect, nor
will ,it open the floodgates to prisoners' statutory validity
claims with respect to gain time. .
.

, Florida Prison Legal Penpectives
• All indigent persons-whether eligible prisoners or
CirCuit Court summary denial of a prisoner's Petition for
private cidzen&-are treated equally: all are entitled to
Writ of Mandamus challenging what was, essentially, a
proceed in court without prepayment ofcosts.
, disclpJinary report' for '"constructive possession" of
contraband.
.
"We hold that Schmidt v. Crusoe. 878 So.2d 361 (Fla.
In his maradamus petition state prisoner Terry Bujno
2003). is applicable to all claims that.' if ~uccessful. will
challenged a prison DR team's findings that he was guilty
directly affect 'the length of time the inmate will actually
of introduction of contraband after a pornographic
.spend in ·prisoh.' Id. at 36'6. Such claims constitute
ma'gazine ~ found.hidden in a work squad cart in which
'collateral criminal proceedings' for purposes· of section
he, another prisoner, and two prison staff members were
57.085•. Florida Statutes (2005)' as explained in Bush, v.
riding. Bujno asserted in his administrative appeals of the
State. 945 So.2d 1207~ 1213 (Fla. 2006)," concluded the
DR and In his mandamus petition to the circuit court that:
Court.
I) he was· not in personal possession ofthe contraband at
Certainly. DOC is not happy with'this ruling. Since the
the time of its discovery, 2) that there was no evidence
Dept. has made every wishful argument in its effort to
that he had hidden the contraband or was aware of its
discourage filing against DOC without a lien on the
existence, and 3) that the evidence was otherwise
prisoner's account, not to ritention the I S¢ copy fee
Insufficient to establish constructive possession because
prisoners are being charged when submitti~g a petition for
the cart ws kept in an unsecured area and was readily
writ of mandamus fOr copies seeking review from a DR
accessible to a large number of other prisoners and staff
resulting in the loss of gain-time, also a "collateral
members.
criminal proceedings" under Schmidt.
The circuit cOl;lrt denied Bujno any relief on his petition
For a full review of the Court's, ruling see: McNeil v.
without even requiring a' response from the FDOC by
Cox. etc•• 33 Fill. L. Wkly (s) 93S(Fla. Dec. 4, 2008). Cox
issuing a simple, and ufually automatic, show cause order,
~ represented by Stephen H. Grimes and Matthew H.reasoning speciously that 'the FDOC';s responses to
, Bujno's administrative appeals "were a~equate." Bujno
Mears ofHollaild and Knight.
correctly. sought review of the circuit court's denial .by
[Editor's Note: As briefly mentioned above, the FDOC
filing a Petition for Writ ofCertioi'ari In the appeals court.
The DCA determined in its review that the record
has been and continues to try to obstruct prisoners from
challenging DRs involving loss of gaintime by chai'ging
supported the conclusion that ~e DR hearing team found
Bujrici' guilty based on the theory that he "constructively
them photocopy fees for documents needed to litigate such
possesSed or controlled" the contraband at Issue. Case law,
actions. In, fact, in September 2007 emails were sent to all
the
'DC~ 'noted, recognizes that,evidence of constructive
institutional librarians informing them that FDOC's
possession
is sufficient ,in,a prison disciplinary proceeding
General Counsel and. the state Attorney General's office
when contraband "is found in an area where only a limited
were Interpreting such actions to. be "civ~1 actions" and
therefore prisoners must pay copy costs for documents to
number of inmates have ready access." See, e.g.• Hamilton
v. •O'Leary" 976 F;2d 341 (71b' Cir. 1992) (evidence that
pursue such actions. Obviously, such copy fee charges are
weapons were found in vent of cell shared by four inmates
illegal 'and improper. Such' cases, as the Fla. Supreme
was sufficient to establish constructive possession).
Court has now repeatedly stated, are "collateral criminal
However, the DCA also noted, even under the minimal
proceedings" not "civil actions" and therefore no
photocopy fees are authorized to be charged. See: Rule
evidential}' standard associated with prison disciplinary
33-501.302(5). F.A.C., (no copy fees shall be charged for
proceedings, the inference of constructive possessioil may
documents filed in criminal proCeedings).: It is time a
be too weak where the charged prisoner was jutt one of
challenge was brought to stop such illegal; unauthorized
many who shared access to the area where the contraband
was found and there was no other reliable evidence tying
copy fee charges. Small claim- court actions would be
the .contraband to the' charged prisoner. See, 'e.g.,
proper to recover such fees already dedpcted or to have
Broussard v. Johnson, 252 F.3d 874 (Sib Cir. 2001)
liens remov~from Inmate accounts for Same - bp] •
(evidence" that contraband- was found In kitchen area
accessible to approximately 100' other inmates not
Cordenas v. Wigen, 921 F.Supp. 286 (in
sufficient);
First DCA Reverses
common area shared by 12 inmates insufficient).
Circuit Court in
'. The .DCA' opined that 'the administrative appeal
'(grievance)'
responses on which the circuit court relied to
"Constructive Possession"
deny Bujno relief ."did not directly address {his] claim

DR Case

\

I

n an opmionfiled January 21. 2009, Florida's First
District Court of Appeals overturned a Second Judicial

that the evidence waslnsuJ!icientto establish constructive
possession, and becauSe the circuit court did not order a
response from the Department, it undel100k to determine
the merits of [Bu]no's] 'claim WI/hout the benefit of an

3

FloridaI Prison Legal Penpectives
adequate record of the disciplinary proceeding. and the
evidence considered by the disciplinary team. Without
, such a ~ the DCA stated, the circuit court could not
. properly discharge its duty to detennine whether there
was some factual support for the finding of guilty, citing
O'Neill Y. McNeil, 979 So.2d 1209 (Fla. lit DCA 2008). ,
Under those circumstanceS, the DCA held, that the.
circuit court's failure to issue an order to show cause
amounted to a departure. fonn the essential requirements
of law. See: Drmcan Y. Florlda.Parole Com'n, 939 So.2d
176 (pIa lit DCA 2006).
Therefore, the DCA granted the certiorari petition,
quashed the order denying Bujno's mandamus petition,
and remanded the case back to'the circuit court for further
proceedings.
Bujno
Y.
Department
of ' Co"ectlons,
=~~So.2d-, 34 Fla. L. Weekly D204 (Fill'. lit
DCA 112110~).
[Editor'. Note: The above case is significant in that it
appean to be the first published court decision in ~lorida
state courts, or, federal courts with jurisdiction ov~r
Florida, to offer any clarity to the principle of
"constructive possession" of contraband in the prison
discipline context. Which is likely why the DCA relied on
federal cases from other jurisdictions in its discussion on
this case. Howev~r, the fact is that every year hundreds of
Florida prison~rs are written DRs for what amounts to
constructive possession of contraband. DRs that, as' the
above case illustrates,' can be in many instances
successfully overturned if properly and zealously litigated.
. Although not an issue in Bujno'scase, as the work.cart
was likely entering the prison from an outside
maintenance shed when the contraband was found, the DR
charge of -inttoduction . of con~d· is also wort4
commenting on.
.
In recent years, many legally-ignorant Fpoc staff
seek;ing to inflict maximum punishment on prisoners
caught with contraband will write the DRs for
"introduction" rather than simple "possession.~' The
difference is the first is a major DR while the second is
minor DR ·and the first carries much harsher penalties
upon a finding ofguilt. .
,However, the fact is, "introduction of contraband" may
only be properly charged upon introducing (or bringing)
specified contraband into a prison from the outside. S~e: §
944.47 Fla. Statutes, and Parrish Y. State,423 So.2d 617
(Fla. 2d DCA 1982). State Y. Becton, 665 So.2d 359 (Fla.
51b DCA 1995). Contraband that is already inside a prison,
or items inside a prison that, become contraband for
whatever reason, and found in a prisoner's possession can
legally only earn a ", possession of contraband" (minor)
charge. Fot example. it is not "introduction of contraband"
to get caught taking prohibited tobacco products into a
confinement unit from the compound. since nothing was
being "introduced" into the prison from the outside.
4

Such improper upgrading of DR charges should be
vigorously challenged by prisoners to disco~ge this
practice and to obtain relieffiom such bogus charges-bp].

Correction
In FPLP 'Vol. 14, Issue 5, article entitled "Obtaining
Records From Counsel," page 8, in the last paragraph.
right column states, "Moreover, this rule provides that in
criminal cases. II It should read, "Moreover, this rule
provides that except In criminal cases."

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Florida Prison LegalPenpectives

From the editor...
,

/.

Those are j~ some of the more visible efforts of
FPLAO that were succ~sful, One project that is very
important but that bas not· been successful. yet is the
parole project started in 2003. Unfo~ly, insufficient
.' financial support to continue. that project bas stymied it
. but we baven't given up. With sufficient support the
parole system in Florida caD be reformed so that it works
. as it should Maybe one day parole-eligible prisoners will
realize"tbat FPLAO must have financial support to make
tbat reform a reality. (More about that in the next issue of

Welcome to this l81esr issue of FPU'. ,This issue.marks
the beginning of the 15th year that F'PU~ has been
published. 'Fori 5 years. Florida Prisoners' Legal Aid
Organization (FPLAO) and FPLP have steadily advocated
for Florida prisoners and their families and friends and'
consistently brought them news andinfonnation that is of
real use in. swviving and cIealing with being in priSon or
having an incarcerated loved one. For 15 yearS FPLAO
FPLP.)..
"
and FPLP Staff and members have been on'the forefront in
" ,AnyWay, wbatit all comes down to is that both
the struggle between rational correctional policies and. FPLAO and FPLP are still al;ive and kicking J 5 years
policies that often seem to be initiated by nothing more
later: And· the reason for that is the dedicated staff and
than whims. abuse of authority (because they can), a lack members who have reaH.zed just how important and
of concern for the safety and health of prisoner or long- . beneficial such an org8Jli.mtion and news journal are.
term public safetY~ greed, personal vindictiveness. and/or
I'd'like to remind everyoneofa few things here.
ignorance. Of course, in'a bureaucracy as large as the
None of the staff· of FPLAO or FPLP gets paid, all
Florida prison system, a certain, amount of such ~8ID:bership dues and donations ,go tQWards expenses.
undermining policies can be expected. But. for some projem and to publish and mail FPLP. All staffvolunteer
reason. it seems the Florida system has had more ,than a ' their time and ~orts to keep everything going.
reasonable share'. That is why it baS been important that
, .FPLAO cUrrently has about 4,000 members, 2/3 of
FPLAO and FPLP exists, to provide check and balance whom are prisoners and the other 113 made up of family
and to shine a light into what :can otherwise be a dark,
members. mends, advocates' i1nd other·concerned citizens.
abusive and secretive world behind Florida's increasingly The organization depends on its members to recruit,·new
numerous razor wire fences.
meQlbers, the more there are, the,
that, can be done.
To many"that FPLAO and FPLP have survived so , 'To receiveFPLP it is necessary to join FPLAO as a
long is nothing short of aDiazing. I lost count long ago of member. (See,Membership Form in t1iis issue.) There are
the nwnber of fellow prisoners who've expressed to me
some exceptions to that, complimentary copies .of FPLP
that the'FDOC would never tolerate FPLAO or FPLl! or
are mailed to the FDOC secretmy and other top FDOC'and
allow, them to continue to "buck ~e system:' Both ~ , government officials. including 'state, legislators. We want
exist i:md will continue with the faith and support \of them to kDow that the problems aren't all ono-sided or
members.
..
' going to be kept secret We know many of those people
Those members ofthe organizatiOn who have been
are thareto clothe rigbtthing.,
with it awhile know that FPLAO does much more than just
Additionally, when writing to FPLAO or FPLP to
'publish FPLP. Since the beginning FPLAO has taken on become a member, ro-up membership, change yom
projects to improve conditions for Florida prisoners and
address or any other such business, please,state that at the
their families. While all those projects weren't successful,
beginning of your .cmrespondence to belp the staff in
many of the most important ones were. In the 1990's processing the, mail.- If you are aware of an attorney or
when the FDOC made several moves to restrict fanilly
other Service Provider who ~ good J~on or
viSitation, FPLAO was there and fought the changes tooth . service and who maY be:interested in advertising in FPLP,
and nail to where today the FDOC has safe and reasonable send them the'info on how 'to .corltact FPlJ', As ,C.QSiS go.
visitation policies. FPLAO bas also successfully fought. up for printing, supplies and postage, adve:rtising helps us
efforts over the years to restrict and limit prisoners' and . to keep membersbipdues' reasonable' and provides useful
info. - . .
"
'
their families' maiL
'
For several 'years FPLAO fought against 'the
And fiDally, the staft'wishes to ~ all those who
h8ve made donations to the organization recently. We
exorbitant. gouging telephone rates that prisoners' families
were being charged to stay iit toucbwith their loved ones. Jmow all D,lembers can't make d~ons. but,many can.
That fight was finally won, with rates being redUced. to
boib large and ilIIla1l, and. donations in anyamomit are
·S1.80 per IS minute call inside or outside, the state just a certainly needed', and appn;eiated., Everything you do
couple ofyears ago, saving prisoners' families and mends nowadays costs something" so ifyou can, make a donation..
eVen ifit's a fewextra,stamps. ~ .
millions of dollars every year.
,, ,Until my next .letter ~ the editor, I wisb
FPLAO waS also recendy involved in ,having the
. prison canteen prices reduced and made more reasonable,
everyone reading this the best' Together we'll continue to
although Keefe,; the private vender for the
make changes for the better and bring useful info to those
. ,
'
eatiteens, is trying to inch the prices back up and bears ".who need it' Sincerely,
, Bob
, ' Posey
,
5
watching.
'

more

resource

Florida Prison Legal Penpectives

POST CONVICTION
CORNER

Each and every person accused ofa ~rime is entitled to certain constitutional, rights. One
such right is the trial by jury. See Sixth Amendment ofthe Un.ited States Constitution; and,
Article 1, §22, Florida Constitution. Inherent in said right is the right topleaii.not guilty and the
right to make the State prove the charges. A criminal defendant can never be forced to plead
'guilty to the charges against him. And, although an attorney has the right to make ~cal
decisions regarding trial strategy, thedetermiIUition to plead guilty or not guilty in a criminal
matter should be a matter 'Yhich ,is left completely to the defendant. In Florida it used to be that
an ~()rneis concession ofguilt without the client's consent amounted to an involuntary guilty,
plea and there was a presumption of the denial of the constitutional right to e,ffective assistance .
ofcouns.el in such situations. See Nixon v. Singletary, 758 So.2d 618 (pIa. 2000). However,
subsequent cases have done away with ~e requirement of a: defendant's consent to a concession
ofguilt and instead look to the reasonableness of the attorney's actions in conceding guilt. This
article will address the issue ofineffective assistance ofcounsel where an attorney concedes a
,
defendant's guilt to the jury without the consent of the client.
The two pronged test for ineffectiveness ofcounsel, as enunciated in Strickland v.
Washington, 466 U.S.'668 (1984), applies to allegations of counsel's Concession ofthe client's
guilt during trial without the consent ofthe client. See, Florida v. Nixon, 543 U.S. 175 (2004).
As such, it must be shown both that the decision to concede guilt fell below an objective standard
ofreasonableness on,the part of the attorney and ~ there is a reasonable probability that. but for
counsel's unprofessional errors, the result ofthe proceeding would have been different.
Strickland at 694. When a defense attorney cOncedes a defendant's guilt to the jury (with or
Without the consent 'ofthe client) the question 'becomes whether the concession ofguilt was a
reasonable trial strategy under'the circumstances presented.' Sage v, State 905 So.2d 1039, 1041
(Fla. 2ad DCA 2005). ' Moreover" in determining'whether this'ttial strategy was reasonable, the
postconvictioncourt needS tp explore whether counsel failed to reasonably investigate the case in
'order to develop a more promising defense. I!L
"
The trial court should not just be able to affix the label st1'ategy to each and every
decision to concede guilt and thusavoid findings ofineffectiveness ofcounsel. Instead. the trial
court should evaluate, among C?ther things. how the defense was presented, whether the attorney
had reasonable alternatives to conceding guilt. the relative strength of the alternative defenses,
the attorney's inv~stigation into the case, and whc;ther the defendant'consented to the concession
ofguilt. Strategic or tactical decisions by counsel made after 'a thorough investigation are
, "Virtually unchallengeable." Cabrera v. State.. 766 So.2d 1131 (Fla. 2nd DCA 2000).
Nevertheless, "patently unreasonable" decisions, although characterized as taeti~ are not' ,
immune from attaC!c-. ML. at 1133. "Certain defense strategies may be so ill-chosen that they may ,
render counsel's overall representation constitutionally defective." U.S. v. Tucker, 716 F.2d 576
(C.A. Cal. 1983); see also Occhicone y. State, 768 So.2dl037, 1048 (Fla. 2000) (decisions must
be "reasonable
the norms ofprofessioIUil conduct.")
Therefore, when an attorney concedes the defendant's guilt without the consent ofthe

under

6

by Loren RhotoD, Esq,

•

Floridl\ Prison Legal Penpeetives
defendant, it does not automatically amount to ineffective assist(mce ofcounsel sUfficient to
justify vacating a judgment and sentence. Instead, it m~t be argued that the decisi.on ofthe
attorney to concede gUilt was an unreasonable decision and that, in the absence ofthe concession
ofguilt, the outcome ofthe trial would have been different Ifboth pron~ of Strickland Test
can be demonstrated then the court should vacate the conviction and re~d the case for a new
trial.• The issue of unreasonable concession ofguilt.should be raised in a timely Florida Rule of
Criminal Procedure 3~850 Motion for Postconviction Relief. Said motion should present
argument, based upon ~ and the other above:cited authorities, that trial counsel conceded the
~'s guilt and that said concession was an unreasonable tactical decision wl)ich likely
con.tributed to' the jury's guilty verdict. Ifboth prongs ofthe Strickland Test can be
demonstrated, the judgmentand sentence should be vacated and a, new trial should b; held.

the

LOren Rhoton is a member in good standing with the F10ridq Bar
and a member ofthe Florida BarAppellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area ofthe law, both at the State qnd Federal Level. Mr. Rhoton has
also been appointed by the Florida Supreme Court to serve on the.
Postconviction Rules Commitiee ofthe Criminal Rules Steering.
Committee. He has assisted hundreds ofincarceratedpersons with
their cases and has received numerous written appellate opinions..•
;.

Cary F.Rada
Board Certified Criminal Trial Lawyer
Former State Prosecutor •

POST-CONVICTION: SERVICES

"

• 3.850 Motions
• "Sentence Corrections
• Federal.Habeas Corpus
• State Habeas Corpus
• Appeals
• NewTrials

"~
CRiMINAL TRiAL LAW

e

't:

.CarY F. Rada, P.A.
318 North Texas Avenue
"Tavares, FL 32778
352-742-2778
E.Mail~ Info@Cary~da.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 qU~lIfications.

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Florida Prison Legal Pe.-spec:tives

NE'W"
...... ·'·SIN·.
. . BRIEF. ·
. .
of telephone or telegraph service.
AL - A fonner Covington County
probate judge, Sherrie' Phillips, was . Officials have not released the cause
of death.
sentenced to three years in prison on
November 12, 2008 for misuse of
co - On November 18, 2008, the
funds. Authorities say Phillips
Denver city council approved a $3
bo~wed S517,OOO from a S1.8
million estate her . office was
million settlement with. family
~dling and returned all but S917. members of a woman who bled to
death at the jail-in Feb. 2006. Emily
Phillips must also serve seven years
on probation after her prison release..
Rice, 24,\yss arrested on suspicion
of drunken driving and had been
AR - On December 23,2008 the· 'injured in a car crash resulting in-a
Board of Corrections approved $27
lacerated spleen and liver. For. 20
million in prison projects..As part of
hours Rice cried for help and guards
the project, S11 million will be used ' ignored her cries.
to expand the McPherson Unit for
woman. Officials said a -mentalCT .- DOC saId on December 16,
health unit will be added.
2008, 'that it opposes .a task force's
plan to use the maximum-security
CA - On November.3, 2008, San
Northern Correctional InstitUtion in
Bernardino' County agreed to pay
Somers exclusively for problem
$45,000 to. settle a lawsuit filed by
pr,isoners. The tasR force saYs that it
Jameelah Medina. The lawsuit was .will improve officer· safety . in·
filed after Medina was forced to
prisons, while DOC claims it must
.remove her, headscarf during her 12
also house dangerous gang members
'hourjail stay. Medina argued that jail
at Somers.
I . officials
violated her religious
freedoms by forcing her to remove
FL - A prison-yard fight Jan. 25 left
the headscarf. As part of the
eight prisoners seriously inju~ with
stab wounds and. at least one gupshot.
settlement the jail will allow ,Muslim
wound at the high security .unit of
women to wear headscarves.
Coleman
Federal .CorreCtional
Complex
located
about 50 miles
CO - Garfield County officials said
northwest of Orlando in .Sumter
on November 3, 2008, that nearly
$570,000 in attorney fees have been . County. Seven of the prisoners were
airlifted. to an Qrlando hospital for
paid to defend a lawsuit. The suit
was filed by jail inmates who argue
emergency treatment. No staff were
reportedly hurt during the brawl.
that jail staff have wrongly shot then:t
Prison officials remained tightlipped
'Yith tasers, placed them· in restraint
about what may have sparked the
chairs dnd denie4 mental health care.
To no surprise, I,.on Vallario,
fight.
Garfield County Sheriff, denies the
claims as frivolous.
GA - The Georgia Peace Officers
Standa~s and Training Council
voted on December 24, 2008,to
CO - A jail inmate at the EI Paso
require .police officers to receive
County Jail died on November II,
, 2008, after collapsing in a holding. intense training on _new eyewitness
cell at the courthouse while awaiting
identification
standards.
The
a court appearance. Bruce Howartf,
Council's vote came in response to
67, had been.arrested on suspicion of
seven prisoners being exonerated by
a assault, harassment and obstruction DNA evidence in the last decade.

m - DOC officials reported on
November 30, 2008, that too many
guar~were ca!ling in sick to work,
cau~ing 13 ofthe past 27 visitor days
at
the
Halawa Correctional
Institution to be canceled. The Public
Workers Uni,on is trying 'to' help
resolve the problem with the Dept~

\

IL' - A- fo~er Alton police officer
was sentenced to '10 years in fe~eral
prison .on December' 8, 2008, for
stealing. Mick Dooley was convicted
of eight. felonies. Officials say
Dooley stole from the evidence vault
to fund a gambling habit. Further,
Dooley once took nearly 59,509 from
the vault, then lost all but $ I.7S at a
casino, said prosecutorS..

.

IL - DOC evacuated 39 prisoners
from a minimum security wing at
Thomson Correctional on November
25, 2008 before a drywall ceiling
collapsed. Nobody was hurt, said the
Dept
IL - Hours after Sarah Jo Pender's
.story was featured on America's
Most Wanted on December 22, 2008,
authorities captured her in Chicago.
Pender, 29, escaped from an Indiana
prisonwhiJe serving. a 75 year
sentence for two murders. A
correctional officer hid her in a
prison vehicle to escape, .said
officials.

.

IN - Charges were filed on
November 19, 2008, against three
male and three female inmates at
Green County Jail. According to
court records, the inmates removed
'metal . ceiling panels to sneak
between cell blocks to have sex. The
passageway was used more. than a
dozen times, said the court
documents.

KS - The County Commission said

Florida Prison Legal Perspectives
on D~mber 28, 2008, that it is
considering whether to pay more
than S5,OOO to buy cable service for
facilities that only receive analog .TV
signals. Starting Feb. 17 jail inmates
at the Shawnee County Jail and the'
juvenile detention center could be
without television,because the TVs at
those facilities only receive analog
signal,. Analog signals won't be
around after that date. said the
Commission.
MA - Officials announced on
November 16, 2008 that the soaring
DOC population is bringing renewed
calls for changes to the state's
mandatory minimum sentences.
Authorities say that in 2003 there
were fewer than .} 0,000 prisoners.
The estimated population could be
over 12,000 in 2009, authorities
added. The dept's capacity is less
than 8,000.
MD - A lieutenant fired from .the
DOC was reinstated by an
administrative
law judge on
December 11. 2008. The judge
cleared him of allegations he helped
brutalize prisoners. The lieutenant
was among 23 officers fired as part
of an investigation involving eight
prisoner assaults.
MD - On December 18, 2008, it was
announced that the state agreed to
settle a lawsuit for S500,OOO with the
family of a prisoner who died at the
Western Correctional Institution.,
Ifeanyi Iko suffQC8ted four years ago
after ail illtercation with guards! DOC
claims that Iko had a pre-exi$ting
heart condition which caused his
deJlth.
MD - Alphonso Hill. a prisoner
serving 16 years in a Towson prison
for eight rapes, was sentenced on
November 12,2008, to an additional
60 years for six new rape charges.
Hill also' pleaded guilty to two
additional rapes at the sentencing'
hearing.

MI - A Huron Valley.Men's Facility
guard suffered second-degree bums
on D~cember 4, 2008 after a prisoner
tossed a mixture of petroleum jelly
and water he heated in a microwave.
The union who rep~septs guards a t
Michigan prisons wantS DOC to end
prisoners' access to microwaves. The
officer's name nor the name of the
prisoner were release~. •
MI - The sta~'s 41 ,prisons went
smoke-free Feb. I. The ban on
smoking 'inside Michigan prisons'
will apply equally to prisoners and
staff. For the' past year prisoners
were ofl'ered smoking cessation
classes toh~lp them to qUit smoking.
MS - In an effort to cut '$6.5 million,
on November 25, 2008, DOC sent
the names of 2,900 non-violent
prisoners to the parole board for its
consideration. The plan a~ calls for
the removal of 300 state prisoners
from county jails, 154 from regional
jails and 50 from private prisons.
This can begin as early as January,
said DOC.

NJ - In an .effort to deal with
prisoners having illegal cell phones,
DOC said on November 16, 2008,
that cell .phone-sniffing dogs. are ,
being trained. DOC officials said
smuggled' phones are a threat i
because prisoners can use them to
send photos of prison layouts and
direct illegal activities.
NY - The DOC in an effort to save
S8.7
million
announced
on
November 7, 2008, ihat it plans to
consolidate housing units at 14. state
prisons. The-plan would also merge
two infirmaries, close farms at. a
dozen priSons and cut 134 jobs.

November, said· officials., Walsh's
brother is being held at the jail on
murder charges. His lawyer told the
court dta~ Walsh was going through a
lot of emotional turmoil.
.

,

NY - .Three police officers were
charged with felonies on December
9, 2008, in connection with an attack
on a tattoo parlor worker. The ,victim
claims the'tJ1ree officers sodomized
him with a baton in a subway station.
DNA' of the victim was found on a
police baton, said Charles Hynes
Brooklyn District Attom'ey.

OU - On November 19, 2008,
Gregory ,Bryant-Bey, 53 was
executed by lethal injection at a
Lucasville prison.
OK. - Mike Burgess, 54, former
Custer Co. sheriff, was convicted in
Jan. '09 of sexually abusing female
jail prisoners and drug court
defendants. A jury recommended 94
years in prison. While awaiting
sentencing, county and state officials
were trying to decide detention
options where Burgess' safetY .would
be an issue in a regular state prison.

WA • Doctor Marc Stem, the head
doctor for DOC, resigned ,on
December 24, 2008, to avoid an
ethical ,conflict over the pending
execution of prisoner, Darold Ray
Stenson. Stem says that his
resignation wasthe only way he could.
take himself out of the execution
plan. Using doctors to prepare fo~ an
execution is unethical, ~id the
form.er head DOC doctor. '

" WI - Officials said on November 30,
2,008, that an old cou~ty jail in
,Western 'Wisconsin has been
, transformed into a homeless shelter
NY - A man pleaded not' guiity on
for single adults. The Polk County
November 4, 2008, to trespassi~g
Jail's old cells are now furnished
and .other charges in connection with
bedrooms and the gun safe is now a
magazine rack. T-he Serenity Home,
what officials call breaking into jail.
as it's now. called, offers homeless
ThomasWalsh~ 26, tried bre8king
into the Nassau County -Jail after·
people a place to live for up to 18
months, said officials. _
•
guards told him there were no
visiting hours the' first week of

9

Florida Prison Legal Perspectives

.Loren D. Rhoton

I.,.

p.o.st.c.b.nv.i.ct.io.n.,.A.tt.o.rn.e.y

1

"• .Direct Appeal$
• Belated Appeals
• Ru'e 3.850 M~tions
• Sentence Corrections
• New Trials
.• Federal Habeas Corpus Petitions
.412 East Madison Street, Suite 1111
.
Tampa. Florida. 33602
(813) 226~138
Fax (813) 221-2182
Email: lorenrhoton@rhotonpostConviction.com.
Website: www.rhotonpostconviction.com
The hiring of's 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.

BUY THE BOOK -, ON SALE NOW'
POSTcoNvIcTION RELIEF FOR THE FLORIDA PRISONER .

A Compilll;tion ofSelected Postconvicdon Corner Articles
A collection of Loren Rhoton's Posrconviction Corner articles is now available in one
convenient book geared tow,ards Florida inmates seeking justice in their cases. Insights basea
on professional experience, case citations, and references to the relevant roles ofprocedure
are provided.. This book is specifically directed toward those pursuing pOstconviction relief..
To order, send $20.00 in the' form of a money order, cashier's ch~ck or inmate
bank check (no stamps, cash or personal checks please) to the address above, or
order online at www.r~otonpostconviction.com.

10

Florida PrisOl~ 'Legal,Penpectives

Thelollowing are summaries 01recent stale andlederal Cases that may ~e wef;d io o~ have ,a sigiiiJi~ant impact on Florida prisoners,
Readen should,always read theftll opinion as published in the Florlt!a Law Weelcly (Fla., L. Weekly); Florida Law Weekly Federal
(Fla. L. Weekly Federal); Southern Rspgrter 2d (So. 2d); Supreme Co&ir.t Repdrter (S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Suppleme~ 2d (F.Supp. 2d),· since these summaries arelor general i'?!ormalion only.
~
"

FEDERAL
US Supreme Court
Hedgpeth v. Pulido, 21 Fla. L.
weekly Fed. S 559 1212108)
The United States Supreme Court
in this case ruled that instructing a
jury on multiple theories ofguilt, one
of which is' improper, i~ not a
"structural .~rror," requiring that a
conviction based on a general verdict,
be set aside on collateral review
without regard to whether the flaw in
the instructions prejudiced the
defendant, but is subject to Hannless
error review. A rev~ewing court.
finding such error should ask
whether the flaw in the instructions
"had substantial and injurious effect
or influence in.determining the jury's'
verdict~
,

qu~ion was rephrased by' the
,
'Supreme Court upon its review.]
, The question was anSwe~in the
. affinnative and' the First PCA's
opinion in Cox waS approved. (See
lead article in "this issbe'of FP,LP')

.Larimore v: StQte, 33 Fla. L. Weekly
S948 (12IIl/08)
In resolving a conflict between
district courts, the Florida Supreme
Court opined that an individual must
be in lawful custody when 'the State
takes steps to ini~ate. co~mitment
proceedings pursuant to the' Jimmy
Ryce Act in. order for the circuit
court; to . have jurisdiction .to
adjudicate the commitment petition.
Therefore, the de9ision' in
Larimore v; State, 917 So.2d 354
(Fla. lit DCA 2005), was quashed
and the one in Gordpn v. Regi,!" 839
So.2d 715 (Fla. 2d DCA 2003). was
approved. .
.

Canty v. M~eil,. 33 Fla. L. Weekly
D2442 (Fla. III DCA 10121108)
.'EdisOn Canty was a prisoner who
had initially received concurrent 15y~r sentence~. one of which was a
.habitUal felony offender sentence.
and was returned to prison after
cdnd~tional r:elease. Upon his return.
,. the 'Deparbnent of Corrections
. improperly calculated a new release
date that effectively extended Canty's
.sentence from 15 years to over 17
y~ars.

.

The appellate court opined that
the, .problem was the DOC's
misunderstanding of the opinion in
Evans v. Singletary, 737 ,So.2d 505
(Fla. '1999). where the DOC says it
..~'llS he.l~ that imprisonment is tolled
,<?n conditional release' eligible
sentences. which is .incorrect. Evans
held
the
conditional release
SJlpervision was tOiled until release
on
the
ineligible concurrent
sentences. Ewins did not speak to the
'STATE
lengtJ1 of incaiceration after return to
District Court ofAppeals
pri~on. Evans reasoned that one who
is' not released cannot be supervised
Florida Supreme Court
Green v: State. 33 Fla.' L. Weekly
D2410 (Fla. 2d DCA IO/I5i08)
as a. Conditional' release. and
therefore. the period of supervision is
McNeil v.' Cox, 33 Fla. L. Weekly S
. This case presented the appeilate
935 (Fla. I2I4/08)'
court with a motion by the state in . properly bas~d o.n the gain time of
theeligibl~ sentence. So. it was
This was a review from' the
criminal court to obtain civil
opined on the. gain time of the
decision in Cox v. Crosby. 31 Fla. L.
restitution lien for 'COsts, of
eligible sentence. So, it was opined
.Weekly D310 (Fla. lit .peA
in,carceration against a prisoner who
12126106). where the appellate court
had, in' a separate· civil action•. that the same reasoning should apply
in Cantfs case: "If a prisoner is still
certified the question: Does the
obtained federal judgment basee;l on
imprisoned on, a con~urrent sentence,
holding in Schmidt v. Crusoe. 878
state prison employ~' v~olation of
.
it
is a bit of sophistry to say the
So.2d 361 (Fla. 2003). extend to all
prisoner's civil rights.
.
person
is not imprisoned on the
gain time actions. regardless of their"
The appellate court affirmed tHe
release
eligible
sentence.'t
nature, .in which, if successful, the
decision to obtain the costs of
incarceration.
.
'
The
appellate
court further opined
,
complaining party's claim would
that
if
its
reaSQning
in Canty's case
directly affect his or her time in
[NOTE: Judge Altenbernd concurred
"somehow
reduces.
or eliminates
prison. solo preclude imposition of a
with reluctance and wrote a very
conditional release 'ill some cases. so
lien on tJte inmate's trust accollnt to
good exp.lanationthat should 'be l'ead
recover applicable filing fees? [The
by prisoners seeking civil judgments . be it Th~ court set the length of
against state prison employees;]
11

sentence, and the Department' of
Corrections does not have the
authority to mcrease it." ,
Therefore, it was found that the
trial court in Canty's case departed
from the essential requirements. of
. law. The 'trial court's' decision was
quashed and the case was reman4ed
, for further proceec;lingS..'
'Hi/Is Y. Stale. 33 Fla.. L. Weekly
D2460 (Fla. 3d DCA 10122108)
The appellate 'court in Berrard .
Hills' direct ap~ opined '~at where
a defendant was charged with
burglary of an unoccupied structure
'and petit theft, the .trial court em
when it submits a verdict form that
does not· contain', option for not
guilty on the burglarycqarge.
Hills' case, was reversed and'
remanded for a new trial.

an

Lane Y. Siale. 33 Fla. L. Weekly
. D2471 (pIa. 4th DCA 10122108)
.
, The appell~ court reviewed Jo1)n
Lane's sentence for his robbery
charge and opined that the twentyfive year.. mandatory minimum
sentence he received under' section
775.087 (2)(a). 3 of the 10-20-Life
statute was unauthorized.
The indictment did neit allege that
Lane discharged the firearm he
carried during, the robbery or that as
a result of sjlch, d~th or great bodily
harm was inflicted. '.
Consequently.' Lane's robbery
sentence was reversed 'and remanded,
for resentencing pursuant to section'
775.087 (2Xa) 1. which was opined
to:; be appropriate, because it
appeared the allegations against Lane
depicted he "Carri~" a firearm.

Florida PrisOl~ Legal Penp.,ctives
•

remanded . with instruction for
and she was sentenced to ten years"
incarceration, to be, f9110wed by five
Gordon to ~ discharged '.in that case.
years' probation.
Subsequent to her convic~on and ' Walke,. Y. Siaie, 33 Fla. L. Weekly
sentencing, Bartlett appealed an~
D272S (Fta. 41h DCA 11126/08)
argued that the tria). court abused its
Terrance Walker appealed his
discretion in atJowingthe primary
,sentence, contending that the trial
detective in her case to testify' that · court failed to give him proper credit
before he, obtained a warrant for her
for time served on atl concurrent
arrest, he ruled out self-defense, and
sentences:
that the State had not met its burden
It was, opined that the lower court
under Siale Y. ~DiGul1ionf 491 So.2d
did erT in only awarding credit on a
1129, 1139 (Fla. 1986), to show
single conviction. The additional
there· was no' reasonable possibility
credit of time served, prior to
that the error affected the.verdict.
sentencing should have been
The appellate court agreed with , awarded on all the concurrent
Bartlett's arguments opining' that it
sentences. See: section 921.161 (l),
was error in allowing the detective to
Fla. Stat. (2005); Daniels, v. State,
give his lay opinion that the killing
491 So.2d 543, 545 (Fla. 1986).
was not done in self-defense and the
"[W]hen a defendant. has jail-time
error was not harmless where state
credit on a sentence 'thlit is to run
failed to show. there was no
concurrently with, an9ther sentence,
reasonable Possibility Utat admission
the concurrent sentence m,ust also
ofthat testimony affected the verdict.
reflect that credit. n Nelher/y v. Siale,
Bartlett's case was reversed and
873 So.2d '401; 410 (Fla.. 2d DCA
remanded for a new trial.
20(4).
.
The sentences were reversed and
Gordon Y. Siale, 33 Fla., L. Weekly
remanded for correction.
D.2708 (Fla. lit DCA 11121108) ,
Willie' Gordon appealed his
Clark v. Slate, 33 Fla.,L. Weekly D
. convictions and sentences of drug
2756 (Fla. 2d;DCA 1213/08)
.crimes he was c~arged wi,th due to
Timothy D. Clark appealed the
evidence found in his home .after a
summary denial of his' motion for
probationary search.
'
postconviction relief where, in
The appellate court opined that
pertinent part, he asserted newly
the trial court misapplied the law in
discovered evidence of scientific
refusing to suppress evidence seized
value based on recent medical'
and allowing that evidence to be
studies, reports, and articles that
, admitted for the prosecution. of new
were not available at the time of his
trial.
'
criminal charges against Gordon.
If contraband is discovered during
In that motion Clar.k alleged that
a probationary search, such evidence
the evidence (1) was unknown at the
cannot ~ used as basis for anew law · time of trial, (2) could not have been
violation. See: Sora Y. Siale, 673
discovered by' the exercise of due
So.2d 24, 28 (Fla. 1996); and Grubbs. diligence, and (3) would probably
v. Siale, ,373 So.2d 905 (Fla. 1979).
produce an acquittal on retrial. The
However, such evidence can be used
trial court denied the motion. opining
to determine whether there was a . the expert testimony was "not
violation of probation. See:'
v.
sufficient to be considered newly
Knighls, 534 U.S. 112, 118-120\l · discovered evidence." Further, it
(2001).opined that even if it was· considered
Gordon's probation was found to
sufficient, the evidence would not
.be correctly revoked, but the new
likely result in an acquittal because
convictions and their sentences were
the victim had testified .at trial that '
reverSed and' that new. case was
.Clark was the' perpetrator of the
crime charged.

u.s.

Florida Prison Legal Penpectives,
First, the appelJate ,court opined
McClintock v. Stale. 33 Fla. L.
that Clark's motjon filed May, 2007,
Weekly. D2779 (Fla. Sill, DCA
clearly alleged the evidence was
1215108)
discovered on March 26, 2006, and
Kelly
Robert. McClintock
waS based on scientific, literature not
appealed a trial court'~order
available on April 27,' I995, the time
directing him to pay restitution.
of his trial. Therefore, because the
, he had already, completed ,his
postconviction 'court summarily
sentence.
~enied the claim, the appellat~ court
The appellate co!Jrt' opined that '
opined it must accept Clark's factual
although "the lower court reserved
allegations as true to the extent th'ey
jurisdiction on the re$titution issue
were not refuted by the record. See:
and ordered that restitution be made
Floyd v. Stale. 808 So.2d 175, 182
a lien of record' withqut indic;ati"ng ,
(Fla. 2002). Thus, it was found that
the amount" the lower court lacked
,jurisdiction
to ,establish
the trial court was in error to
the
conclude the scientific evidence , restitution amount and enter a lien
could not be, considered newly
there on 8fter defendant· had
discovered evidence.
completed his entire sentence. See,
SecOnd. because the trial court
similar case: J.D. v. Suite, 849 So.2d
failed to attach, records 'of the
'458 (Fla. ~III DCA 2003).
victim's testimony or 'testimony
Other Florida cases have 'also'
concerning the scientific evidence, it
indi~ated that once an individual'has
was error for a summary denial.
served his or her complete sentence.
The case· was reversed and
the trial court loses jurisdiction to
remanded for further proceedings.
enter any further orders in the matter.
On remand,' it must attach records
See: Maybin v. Stale. 884 So.2d I 174
conclusively refuting the claim or" (Fla. 2d DCA 2004); Daniels v.
conduc~ an evidentiai-y hearing. ,

mm:

State. 581 So.2d 970 (Fla. Sill DCA
1991).
The state tried to argue in the
appellate court that ,under section
775.089 (3) of the Florida Statutes
the trial court possessed jurisdiction
to enter restitution until five years
after' the end' of McClintiock's term
of imprisonment. The appellate court
disagreed.•
See the-statute, as written, it
pertains to a period of time during
.which the trial court ;s authorized to
enforce lh! payment of I restitution
~ 'o.ot a period of time for 'entry
ofan original order of restitution.
The 'trial court's 'order for
McClintock to pay restitution was
va~ted. _
'

David W. Collins, Attorney at Law

,

a

Former state prosecutor with more than 20 years ,ofcriminallaw e:lq)erience
~'AV" rated by Martindale-Hubbell Bar register: of Preeminent Lawyers

."

Your voice

'

in Tallahassee
representing prisoners in all areas of post-eonviction relief:
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,

"

'. Appeals

Plea Bargain Rights '
Sentencing arid Scoresheet Errors
Green, Tripp, Karchesky, Heggs cases
State and Federal Habeas Corpus'·
Jail-time Credit Issues
Writs ofMandamus
Gain-time EligibilitY Issues
Clemency
Habitualization Issu~
Ptoba~on Revocation Issues:

3.800 Motions
3.850 Motions

Write,me-today about your ease!

Davidw. Collins, Esquire
P.O~Box54t

, Monticello,FL 32345
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Florida' Prison'Legal Perspectives
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, 14

Florida Prison Legal Perspectives
Resource List
February 2009
FLORIDA

Government

.

Governor (Charlie Crist)
PL-05, The Capitol
Tallahassee, FL 32399-0001
850/488-4441
www.myflgrida.com
• . Attorney General
PL-ol, The .Capitol
Tallahassee, FL' 32399-1050
850/487-1963
www.oag.state.fl.us
Department ofCorrections
Secretary Walt McNeil
2601 Blair Stone Rd,
Tallahassee, FL 32399-2500
850/488-7480
www.cfc.state.fJ.us
Department ofHealth
2585 Merchants Row Blvd, .
Tallahassee, FL 32399
850/245-4321
www.doh.sWe.fJ.us
Department

of

Law

Office ofVital Statistics
PO Box 210
Jacksonville, FL 32231-0042
9041359-6900 .
Maintains s/tile birlh/death cerfij1Ca1es.
elc,

Parole Commission
2601 Blair Stone Rd" Bldg. C
Tallahassee, FL 32399-2450
850/922-0000
www.fpc,swe,fl·us

Florida Justice Institute
1OOS E 2nd St, #4320
Miami, FL33131-2100
305/358-2081
.
Fax: 305/358-0910
www,f1oridajusticeinstitute.org

"

Public Service Commission
2540 Shumard Oalc Blvd,
Tallahassee, FL 32399-0850
850/413-6055
www.florid~psc.C9m

Regulates In-state uliIIl/es. including
telephone services,

Florida House ofReprese!1tatives
402 S, Monroe Street
Tallahassee, FL 32399-1300
850/488-1157 (Clerk)
www,flhotise,gov .

Enforcement

(FDLE)

POBox 1489
Tailabassee, FL 32302-1489
850/410-7000
www·fdle,state.fJ.us
Department ofState
PL-C2. The Capitol
Tallahassee, FL .32399-0250
850/245-6500
'
www.dos.state.fl.us
Websltes contains all stale agencies'
rules (Florida Administrative Code) and
"Florida
A9in/nlsl1'atlve' Weekly"
detailing current agency rulema1cing
Info.

Office ofExecutive Clemency
(parole Commission)
260]·Blair Stone Rd.
Bldg. C. Room 229
Tallahassee, FL 32399-2450
850/488-2952'

Services:
Membership-based
organization.
Provides information
advocacy 10 stale prisoners and Iheir
Conducts
families and advocates.
grassroots organizing of prisoners'
families and handles Impact litigation
concerning civil rights / administrative
law affecling prlsonen. their families
and children. Publishes bi-monthly news
journal.
"Florida Prison
Legal
Perspectives. ..

Florida Senate
404 S. Monroe Street
Tallahassee, FL 32399-] ]00
850/487-5270 (Secretary).
www.flsenate.gov

.

-' ... -

.

Websites conlain' contact Info for all
state legislators: a copy of all CUl'l'enI
. Florida laws (statutes): and bills Ihal
have been Introduced in the Legislature
and their history. Including In mtuiy
instances "staff analyses" valuable for
understanding legislative intent.

FLORIDA
.
Legal Aid / Advocacy Organizations
Florida Prisoners' Legal Aid Org., Inc.
POBox 1069
Marion NC 28752 .
www.t1oridaprlsons;net
fplp@aol.com

Services: Handles civil rights /ltigation
,concerning' jail / prison conditions;
Makes reft"alsjor damage / civil-rights
cases.
Prison advocacy. .lobbying,
develops strategies for alternalives 10
incarcerqtion.

Florida Institutional Legal Ser., Inc.
12921 S WI" Rd, Ste 107 ##346
Newberry, FL· 32669·
3521955-2260
Fax: 3521955·2189
www.crimiitaljusticeforum.comIPrisonJ
issues-FllesIFlLS
Services: Legal assistance 0 Florida
state prisoners. Impacl litigallon.'
conditions of confinement. civil rights.
medical. etc. Some individual services.
Publishers
"Florida Manuel for
Incarcerated Parents." which is free to
prisoners.
.

FLORIDA
Attorneys
Loren Rhoton, Attorney '.
Rhoton & Hayman, P.A.
412 E. Madison St., Ste. 1111
Tampa, FL 33602
813/226-3138
E-mail: rbpton167@aol.com

15

Florida Prison Legal PeniJectives
Specializes in Florida post conViction,
airect appeals, sentence corrections, new
trials, federal' habe,as corpus, 3.850,'
3.800
David W. Collins, Attorney
P080xS41
.
Monticello, FL 32345
850/997-8111
'

Specializes in all area ofpost conviction
relief, including. appeals, 3.850, 3.800
state-federal habeas corpus. parole
hearings, clemency, etc.
.
Daniel D. Mazar, Attorney
2153 Lee Road
Winter Park, FL 32789
1-888-645·5352 (Toll free)
407/645·5352
.
407/645-3224 (Fax)

Pr,ovides representation in Direct
Appeals, Belated Appeals, 3.850
motions, 3.800 motions. State and Fed
Habeas Corpus, Detainers. and other
Post Conviction matters. Over 30 yrs.
expo In criminal law.
Michael Uffennan, Attorney
2022-1 Raymond Diehl.Rd
Tallahassee, FL 32308
8501386-2345 .
www.uffennanJaw.com

,Provides representation in State and
Federal Criminal Post Conviction
. Motions. Payment plans available.
Cary F. Rada, Attorney.
318 N Texas Ave.
Tavares, FL 32778
3521742-2778
email: info@CaryRada.com

Provides State and Federal post
conviction representation. Former State
Prosecutor. boardcertified criminal trial
l"W!er.

DALEY LAW OFFICE, P.A.
.901. N Gadsden St
Tallahassee, FL 32~03"
8501224-5823

www.daJeylaw-office.com

Provides Post Conviction, parole and
clemency representation.

based solely upon advertisements.
177 N. US Hwy I. Ste. 8-297
Before you decide, ask the attorney to
Tequesta, FL 33469
send you'!ree written information about \ •
their qualifications.
Services:
Grassroots organizing of
people opposed to death penalty.
FLORIDA

BookslPublicatlonslJoumals

Lw!
Continuing Legal Education Pu~lications
(CLE)
,

CLE publications are produced by the
Florida Bar in collaboration with
LexisNexis. These are excellent books
covering Florida-specific legal topics.
such as Administrative Law, Appellate
Practice, Family Law. Legal Research
Legal Writing. Trial Practice, Civil Law.
Rules ofCourt, etc. To obtain more info
and prices for available publications in
the CLE series contact: LexisNexis.
Attn:
Order Fulfillment. 1275
Broadway. Albany, NY 12204 (phd 800/
562-/ /97). Ask for Flo. Bar CLE
Publication catalog.
"Post Conviction Relief for the Florida
. Prisoner"

16

Services: Pravides Jewish religious
education,
counseling.
emergency
assistance and Ie/errals 10 Jewish
priSoners and theirfamilies.
Kairos Outside

140,N,OrangeAve.• #180
Winter Park, FL 32789
4071 629-4948
www,klamsprisonministtv,org
kairosjo@aoJ.com

Services: Provides mentoring. religious
minist1')', .family .reunification support
and weekend r"rellls for female adults
with incarcerated loved ones.

A collection in. book form of Tampa '
attorney Lor-en Rhoten's Postco1fVictlon
Corner' articles based on professional
experience, to relevant rules' of
probedure. Price $20. To order send
money order,. cQ,fhier's or inmate ba"k
checle to Loren Rhoten,' Attorney
(ad,dress listed' in "Florida Attorneys"
section above) or order online at
www.rhotonpoatconviction.com

Prison Connection, Inc.
1859 Polo Lake Dr. East
Wellington, FL 33414
8881218-8464
www.theprisoneonnection.com
seeacon@aol.com

"2007
Manual"

California Prison Focus
2940 16th Street. Ste. 85
San Francisco, CA 94103
WWW·prisQDS.org

Government-in-the-Sunshine

Manual coVering Florida Sunshine Laws
(open public meetings and records laws)
published by The First Amendment
Foundation. P"ice. $/5.95 check or
money order to: First Amendment
Foundation, 336 E. College Ave., Ste
101, Tallahassee, FL 32301. Credit card
orders call. 850/224-4555. or order
online at www.j1ori~af.org Add 7.5%
state sales tax to $/5.,95 payment.
FLORIDA

\ Other Groups IOrganlzat,loQs

·The hiring of an attorney is an
important decision that should not be

Aleph Institute
9540 Collins Ave.
Surfside, FL 33154
305/ 864·5553
www,aleph-instityte,org
admin@aleph-jnstityte,org

Citizens United for, Alternatives to' the
Death Penalty

NATIONAL
Newsletters/Journals

Quarterly news journal reports on
issues/conditions in CA SHU prisons.
.Some national info. Prisoners $4 per
yr., all othen $20. Sample copy $1.
FAMMGrarn
1612 K. St., NW. Ste. 1400
Washington. DC 20006
www,famm.org

Quarterly news journal focused on fight
against mandatory minimum prison
sentences.
Published by Familiea.
Against Mandatory Minimums - a

Florida Prison ,Legal Perspectives
National organization. Prisoners 510
individuals $25.
professionals 550.
Membership-based organization.

Fortune News
53 W. 23 M St., 81b Floor
New York. NY iOOlO
www.fortUnesocietv.org

Hepatitis C Awareness News
PO Box 41803
Eugene, OR 97404

Human Kindness Foundation
P.O. Box 61619 .
Durham, NC 27715
/

Free interfaith 'spi,itual booles and
newsletter.

Coalition for Prisoners Rights Newsletter
P.O. Box 1911
Santa fe, NM 87504

Bi-monthly newsletter published by
hepatitis C Prison Coalition with news
and info about Hep C and HIVIHC,V.
Free. upon request, but stamp donations
needed and welcomed

,Prison-related newsleller, published'
monihly. Free' 10 prisoners and their
families. a/J others $12' ,per yr.
Donations/stamps 'appreciated 'to help
with publishinWmailing.

NATIONAL
Book Projects

Justice Matters
PO Box 40085
Portland. OR 9724,0-0085
Quarterly. newsletter published by the
Western Prison Project. Prisoners 57
per year. 515 a/J others. Good resource
info.
'

Prison Legal News '
2400 NW 80th St. #148
Seattle, WA 98117
.
Web site: www.prisonlegalnews.org

.

Monthly journal carries summaries and
analysis of recent prisoner rights cases,
self-help litigation articles, prisonrelated news. Prisoners 5I 8 per year"
525 others. Sample copy 51.

The following sources provide free
books to' prisoners. However, these
projects rely on volunteers and d!3natlons
to operate. Whenever possible, prisoners
should help. these projects ,when
requesting free books by sending ! . .few
stamps for postage.
Requests ',' for
specific books, can rarely be honored,
instead" request books by type, e.~.
mystery. legal, historical, novel, etc.
Requests are usually limited to 2 or 3
books at ,a time.
Books Through Bars
4722 Baltimore Ave.
Philadelphi~ PA 19143-3503
Prison Book Program
c/o Lucy Parsons Ctr. 8r. Bookstore
1306 Hancock St.• Ste 100
Quincy, MA02169

Nolo News
50 Parker St.
Berkeley, CA 94710
Quarterly self-help newsleller covers
(non-prison) civi/litigation Issues. 7\voyear subscription 512.

Upendra Dasa .
, P.O. Box 9116
Boise, tD 83707-9116
Free
materials
Consciousness

Wayward Council Books
Gai'nesville Books for Prisoners
P.O. Box 12164
'
Gainesville,FL 32604

,Offirs Buddhist materials

Quarterly magazine of the Fortune
society carrying wide variety of articles
and info about prisons. prisoners.
crimina/justice. rehabilitation, etc. Free
to prisoners.

,

Subterranean Prison Books
9E. Gregory
Pensacola, FL 32501

Liberation Prison Project
P.O. Box 31527 .
'
Sail Francisco, CA 94131

on

Krishna

Books 4 Prisoners
cloGroundwork's Books
0323 Student Center
La Jolla, CA~9203?
Book 'em
P.O. Box 71357
Pittsburg, PA 15213

MEP
P.O. Box 5311
Madison, WI 53705
DC Prisoners Book Project
P.O. Box 5206
Hyattsville, MD 20782 ,
Bound Together Bookstore
Prison Literature PrOject
1369 Haight St.
San Francisco, CA 94117
NATIONAL
. Resource LIsts
"ACLU Prisoner Assistance Directory"

(Flor/da prisoners see Yolume '4 of
"Prisoners and the Law" in major
institutions' law library - conlow above
directory.)

YResource Directory for PrisonersNaJjor Prison' Dharma Service
PO Box 7417
Boulder, CO 80304
www.naljor.com
(Directory can be printed offwebsitefor
free.)
.

''National Pris~mer Resource. List"
availablefree froin:

Prison Book Program
1306 Hancock St, Ste 100 '
Quincy, MA 02169
Prison Boqk PJ;Oject
PO Box 3,96
Amherst, MA 01004-0396
Prison Book Project
P.O. Box 1146
Sharpes, FL 32959

"Resource and Organizing Guide"
availablefrom:

Prison activist Resource Center
PO Box 339
Berkeley, CA 94701
(Donatio11lstamps ,equesled to Irq,
offset printing/mailing casu.)

17

Florida Prison LegalPerspeetives
6 Tolman Rd.
Peaks Island, ME 04.108
www.ndmn.org "

"Directory of Programs Serving Families
ofAdult Offenders"
availablefree from:
National Institute ofCdrrections
Information Center
,
, 1860 Industrial Circle, Ste. A
~ngmont, CO 8050 I

NDRAN is a new CURE project formed
to help death row prisoners across u.s.
gain access to legal, financial and
community support and to assist
prisoners' efforts to act as selfadvocates.

NATIONAL
Groups/Organizations
11le Sentencing Project·
918 F. St., NW, Ste. SOl
Washington, DC 20004
2021 628.Q871

,National Clemency Project (FPLP)
8624 Camp C01uml:ius Rd.
Hixson, TIC 37343
www.nationalclemencyprojectcom

•

Vietnam Veterans 0'£ America
8605 Cameron St., Ste 400
Silver Sprin~ MD 20910
www.vva.org

Services: Provides technical assistance
to develop alte"!ative 'sentencing
. programs and conducts research on
criminal justice Issues.
No direct,
services to prisoners.

Publishes "From' Felon to Freedom" a
pre-release . guide for imprisoned
veterans. Writefor more info.

Stop Prisoner Rape
3325 WiI~hire Blvd., Ste. 340
, Los Angeles, CA 90010

Salvation Army
P.O. Box 269
,
Alexandria, VA 22313

Lawyer's Manual. " Copies ofthe manual
are provided to prisoners at no charge.
The JLM can also be downloaded and
'printed from the above website at no
cost.
Grant Publications
Alice S. Grant
P.O. Box 28812
Greenfield, WIS3228.Q812

Discount magazine subscription service
for prisoners. Send SASEfor price list.
Tighwad Magazines
PO Box 1941
Buford, GA 30515

, Discount Magazine subscription service.
Write for piice list.
.
(When contacting the above discount
magazine services, please let them know
thaI you learned about them in Florida
Prison Legal Perspectives.]
INTERNET .REsOURCES

www.S1lt,om
Has 'parolelpro~ation prograMS in
almost every major city. Write for info.

SPR works to elid sexual viQlence
against prisoners. Counseling resource
guides for prisoners qnd released rape
victims, and advocates 9"e available for:
AL, AZ, CA, CO, FL, GA, IL, LA, OK,
OR. MI, MS, NC, NY, rx, WI or
nationwide. Specffy state with request.

Correct HELP .
P.O. Box 46267
"
West Hollywood, CA 90046
HIV Hotline 323/822·jS38 '

Provides info related to HII'. 'Contact if
you can't access programs o~ are not
receiving proper medication.

AMnesty International, USA
322 Eighth Ave.
'
New York, NY '10001 .

Information on the Internet is available
to prisoners with family or friends on the
outside with online access who will print
and mail material in. The amount ofinfo
on the 'Net' is tremendouS. Info on
almost any subject c:an tie found online.
The, following Iisf,$ so~e websites that
may be useful for'info.
Legal/Legislative

www·amnesty.org
NATIONAL

AI is an independent, international
organization that works to protect
human rights. .
CURE
(Cimens
United
Rehabilitation ofErrants)
National Capitol Station
PO Box 3210
:
Washington, DC 20013.
2021789·2126 , '

for

www.curenational.Qrg ,
Services: Organizes prisoners and their
families to 'work for criminal justice
reform. MflIrJI state chqpters.
National Death Row Assistance
Network ofCURE
Claudia Whitman

General

Servrc:es "
I

Let My Fingers Do Your Typing .
PO Box 4178·FPLP
Winter Park, FL 32793-4178 .

wW\y,lawcrawler.com
Searches government and other sites for
low.
www.nolo.com
Provides some general legal Iq/O and
sells books on wide variety 'of legal
topics useful to the public.
I

Services: Profuslonal typl,!g services
by mail.
Computer, typewriter,
transcription, 'black/color printing and.
photocopying. . Free price list upon
, request. Special rates for prisoners.
Center for <::onstitutional RIghts
666 Broadway
New York, NY 10012
www.jailhouselaw.org,

CCR is one of the organizations thaI
cooperaies to produce the "Jailhouse

www.findlaw.com
Good site for searching out jederal and
state low,
www.washlaw.edu
Legal search enginefor locating prlmiuy
.legal sources at the federal and state
levels.

18
"

"

Florida Prison ,Leg~1 Penp~ctives '
www,prjsonactivists,org
Provides wide variety of prison-related
info. ' Includes large "Link" section to
many other related legal ani nonlegal
web3ites.
'

www.law,uO,edu
University of Florida' low library
website,
'.
www,stetson,eduldepartmentsllibmlYl1a
~

www,martjndale,qom
Provides Info on lawyers nationwide.
including contact Info. area ofpraclice,
how long, elc.
.

Stetson University low library website,

www,legal.fim,edu
Posts the "Government in the Sunshine
'Manual" (public meetings and public
records manual),
,

www,thomas.loc,gov '
Sourcefor federal legislative malerial,
www·uscouns,gov
.
Links and infor,ma;ion about U.S"
Supreme 'and otherfederal courts.
www.call.uscourts.gov.
Eleventh Circuit Couri of Appeal
website.
www.flnd,uscourts.gov
, U.S, District Court. Nortnern Districi of
Florida website.
.
www,flmd,uscourts,gov
U,S, District Court. Middle District of
Florida website.
'.

www,flsd,uscOurts,AAV
,
U.s. Distrlcl CoUl't, Southern District of
Florida website.

www.rnyflorida.com
Linlc.s to stale agency and government
offices' websltes.
www,flsenate,goy
www,t1house,gov
Florida legislature's websites. Provides
directory of state legislalors; complete
Florida staMes (lows); Senate and
House bills, bill histories and analyses.
www,tlcourts,org
Provides, directory and links to Florida
, courts' webs/tes,

.

'

www,FCLA,edu
Florida State University 'aM!' library
webllte.
www,law,nijami.edulJibmry
University ofMiami low library website,

FPLP
,
Ann: Resource List
PO Box 1069
Marion, NC 2S7S2
mlp@aol,c:om

,I':

www,tlabar,orglnewflabat/memberservic
,esICLE
.
, Sells continuing Legal Education series
oflegal books concerning Flo. law,
Florida
Supreme
www,tlcourts,org

, Court:

District Courts of Appeal:
First DCA: wwwildca.org
Second DCA: www.2d ca.om
Third DCA: www.3dca.flxourts.om
Fourth DCA: www.4d ca,org ,
Fifth DCA: www.Sdca.org
Circuit Courts:
lit Circuit: 'flWW. firsi,judicjalcifcuit.or,g
'211d Ci~it; www.2ndcjrcujt.!egn.t1.us
'3 td Circuit: www:jud3.flcourts,org'
4thCircuit:www,coj,netIDepartments/fou
~R+ Judjcjal+Cjrcujt+Courtldef\lult.hun
S Cirtuit
.
~udS,flcourts.omlcourtsljndex,htm ,
6 Circuit: www.jud6.om
7th Circuit: www.cjrcUit7,org
,
sth Circuit: www;cjrcuit8,org'
,
9th Circuit: www;njnja9,org
10th Circuit: www,judlO,org
11 th Circuit: bUp:lliudll,flcourts,org
12th Circuit: hUp:/IJ2cjrcitit.state,O,us .
13th Circuit: bUp;/liudI3,flcourts.org
14th Circuit: for information' call 8So747.5327
1Sth Circuit:
W~,cg,palmbeach,f],uslcadmin

16C,rcuit.: www,iudI6,tlcourts,org
i 7th Circuit: www.17th,f]courts,om

1Sib Circuit: www.jiJdI8,f]cojJrts,org
191h Circuit: www,cjrcuit19,grg
20th Circuit: www.ca.Ciis20.om
FPLP updates this list on ,a continuing
basis as a service to readers. Please let us
'know if yo" are aware of other resources
that prisoners, their families or advocates
maybe i~terested in a~ the below address
or by email:
'

Please feel free to copy and distribute
this resource JiSllJO others. •

TYPING
S.£R¥J.C.E
PROVID~D

SINCE 199~

SpeclflcaJlydaelgn~with epecIai

"'Iar..tbah'~,
Black I Color PrInting
and Copying ,

"

"FORA "FREE"
P'R1CC 1.1'S'T' AWl)"
MO'RE INFORMATION
SEND A SASE TO:

LET MY FINGERS
DO YOUR TYPING

sandra Z. Thomas (dba)
. PO Box 4178
. ·.WI~""',~l&.

'.

Phone: 407·579-5563

Spedal Offer: $2.00 off ftrat order.
Special offer.vold after: 12/3112009
,

,

.. Florida's Prison Population
Tops 100,000
On December· 18, 2008, the
lOO,OOOth prisoner was booked into the
Florida p$)n system. 'Consistent with
J:DOC Secretary Walter McNeil's pro.
fessed commitment to reducing recidl·
vism by expanding re-entry prognuns,
the FDOC says there is a great need for
'education and drug treatment programs
for prisoners. FDOC officials note that
almost 90% ~those in prison now will
eventually, be released and making sure
they have. eduCational skills is vital to
help keep them from returning to prison,
On the other hand, FPOC officials say
that if the prison.population continues to
increase as project~, 19 more prisons
will need to be built over the next five
years"

19

Flori~a

Prison Leg~1 Perspectives

Questions ~ Answers
Scientia est potentia
(Knowledge is power)

GOt a question?FPLP has got the 8DSWeI'. Send
fbJp@aol.coin. '

questions to: FPLP, Q and ~ P.O. Box 1069, Marion NC 28752, or

"

Q: I had a law clerk tell me duat I could DOt have or keep a copy or Cliapter 33 (ll'Iorida AdmiDistrative Code,
F.A.C.) ruIfB in my locker. Is It that true!
.
.
.
\

A: No, that isn,'t t1'Ue. You cannot, by rule, obtl;lin photocopies ofFDOC rules from the law library,. even if you are,'
• willing to pay for the copies. Huwever, nothing can legally, prevent you from having some one on the 'outside fron,
lending you a personal copy ofsuch rules through the maJl. Gopies ofChapter 33 rules can'be prinledoffthe FDOC
webatte, W1vw.dc.stme:.fI.us, or all Florida agencies' admtnisIrattve rules can be found on the PIa. DepL ofStQte website, .
www.doa.statejO.us.To8avespaceandmallingcosts.itis suggested that you only have ihe ipecific section(s). ofrules .
drat ~ needSelll by mail.
.
Q: I WlDt CO write a griewnee about buulequate medical

care. Do I have to write an iDfomud grievance tint?

A: No. A grieVance on a medical issue within the FDOC is initiated byfJling a formal grievance at the institutional level.
U,ea Forinol Grievance (303) Form, write "Medical GrieVance" on the Jirst line ofthe form, then write your complalnL
See: Rules 33-103.006, Formal Grievance-Institution or Facl/Ily LeveL
.
Q: I8IIl goJag • put ia lor a tnmsfer and WlDt CO'bOw whidlU.dtutiODB have what programs aDd or PRIDE .
0......... Where aalfjDd dlat iDfo'l
'
.

•

i

A: Every year, usually in February or March, the FDOC sends acoPJI ofits official Annual Report for the prior Fiscal
Year to etlCh Institutiontlllibrary ~here they are available to the prison population. These Annual Reports conlllin the
info you ask about along with many other usefUlfacts and statistics ab~t the FDOe. .These reports are also posted on
the'FDOC~webslleem:h)'Bllr.

Q: I just lot baek: aD order form the appeal court (District Court of Appeals, DCA) and it only states: Per Curiam
AtIirmecL What dOlI 8latmeaa!
.
.
,It: EssenJtally It means that the panel ofappel/ate courtjudges (usually a panel of3 judges) who consideredyour appeal
adopts or colfjlmr.r the d4c1s1on ofthe lower court (U8IIQ/1y the circuit COUI'I) which you WBre appealing.
,

Q: What Is a Certificate Of Service?

A.' A Cl11ifJeate 01Service is a section ofa pleading or motion filed with a court, usually written on the last page, in
which the ftIing JXI11Yce11IfJes to the. court that a lrJIe Copy ofthe dociinent has be~n mailed to or otherwise served on all
other parties. .
Q: What ,type or pievaaces 'are ftIed dtrec:tIy as.a 'folmal'grimmee (303) and bypassing the 'lDform8J Grimmee .

•~!

.
~

A: Emergincy grievances; grie'VD1WeS ofdisciplinary. action; grievances on reprisal; grievances ofa selisltive nature;.
medical gri#1Vtl1lCU: grievanceslnvolvlng gaintJme gu.vemed by Rule 33~OI.101. F.A.C.lncentive Go/ntime: grievances
challenging placement In close management (C. M.) confinement or subsequent review; grievances alleging violation(s)
O/the American.s with Dlstibllities Act (JWA):, and grlmmcesconceming the retum ofincoming mail governed by RJlle
33-210.10/ (14), F.A.C See: Chap. 33-103.006, F.A.C, FonnaJ Grievances-Institution or Facility leveL

Q: Where is . . Authorized PrOperty LIst fo1lDd fa'Chap. 33 Rules?
,

A: It Is found In section 33-602.20/, F.A.e.• Inmate Property.
20
'

,.

Florida Prison Legal Penpeetives
..

.

Q: Am ,I allowed to establish or run my OWD business wblle in prison?

.'

A: Not according to the F/XJC Chap 3j-6Q2.207. F.A.C.. states: "(/) No inmate shall establish or engage aclive{J' in a
business or professio,:, while Incarcerated" and "(5) Any inmaie who attempt to 'conduct a business or profession through
the moll, telephone. or tutV other avenue ofcommunication while incarcerated shall be subject to disciplinary action in
.accordance with Ru!es33.601.30J -.314. F.A.C."
.
Q: It seems nke in the FDOC die only ones required to comply with the rules are prisoners. Aien't p'rison oftidaJs
and staff also required to comply with the rults1
.

A: Yes. Once formally adopted. in Florida, administrative agencies' 1Ules have the smrre "force and effict" as a law or
statute. Administrative agencies. SI,Ich as the FDOC, and agenCy employees, must legally follow and obey the agency :sown rules. See: DeCtlrion v. Martinez. 537 So.2d /083 (Flo. J" DCA 1989): Woodlg v. Health and Rehabilitatiye Ser..
505 So.2d 676 (Flo. I" DCA 1987); and Gadsen State Bank v.Lewis. 348 So.2d 343 (F14 161 DCA 1977). This principle
has .been applied In prisoner litigation challen)ing d1sciplintl1'J1 proceedings. See: Williams v. Jqmes, 684 So.2d 868 (Fla.
rJ DCA 19f!6), citing Turner v. Singlelmy. 623 So.3d 537 (Fla. JII DCA Ig93). A Petition for Writ ofMandmtrus is the
. legal proceeding use to ~ompel an agency or ilS employees to comply with the agency's own rules. For more ti(ormation
011 MtmdIlmus see the section on same in Florida Jurisprudence 2d.,... available in FDOC law libraries.

. Q: If'I file a legal cbaDenge to a prison discipliDary prOeeediDg or gaintime issue do I have to file it in Tallahassee,
tile Second Judfdal Ciradt COUI't!
A: It depends on what Issue you raise.' Generally, Sec. 768.28, Fla. Statutes, slates that an action against the state or lIS
agencies 1IUlJ' be brought in any county in which the State or lIS agencies have an ojJice qM wherein the cause ofaction
occurred In a Mandamus action. however, the ''place fixed by (aw" for performance ofa duty determines venue. 'In
other wordS, the State or ilS a~cies hove a comnron law venue privilege to be sued in the place ofits central residence
(such as the FDOC's central office location.in Tallahassee). However, the "home venue privilege" is subject to
exceptions, one being when constilJltl01lQ1 rights (State or Federal) ate at issue. Then the Mandamus action may be
brought in the county in which the constitutional duty is to be performed See: Cpnne,. v. MId-Florida Growers Inc., 541
So.2d 1252 (Flo. rt DCA J989). Ifyoujlle in the local circuit court where you are Incarcerated and the FDOC asserts
home venue privilege, you can use. the "sword welder doctrine to to overcome that privilye. See: Bfl17' v. Flo. Board of
Regents. 644 So.2d 333 (Flo. III DCA 1994); Grqham v. VaM, 394 So.2d J80 (FYa. 1 DCA 1981). Considerlngthe
. antagonism that sOJ1!B Second JUdicial Ctn:uit Court judges have'for 019' prisoner litigation, ojtenimproperly chtuging
filing fees for "collateral criminal actions" and rubber stamping petitions denied, the best practice may be to flle
Mandamus act/ons locally when constitutional issues (violations) were createdat fir by the institution where you are or lIS
employees.
.
.

Q: My JaDhouse lawyer told me there are laws that are on the Florida books that DO 'one knows about. \These laws
are suppose to adD be good today aDd When they are used the" court bas to let people out of prison because'tIiey
don't want every one to know about them because it will cause tmmany people to have to be released. Is dJJs true
oruff
A: If what he is talking about is .some hidden Iaw(s) ihat have not been removed from the books or are no longer
published, In the state ofFlorldD, he is pullingyour leg. All laws in' Florida are voted in or removed every two yean and
occasionally a supplement is published ifthere are laws to be added or. changes In between this two years period. For the
history ofany law in FlorldD you simply have to go totheFior/do Statutes Annotated, in your institutional low library,
and look into IL You will.jlnd the answer to current changes, updates and/or repealed laws. There is no such thing as
. hidden atallltes in the state ofFloridJJ.

Q:
. Is old case. law the tiDal authority for the COllJ1B, Stare Decisis?
A: In'80me insttmees yes, bllt'not without referring to Shepard's to find outthe cose history./J!.dismissed, supBrseded.etc.,
and the most resent treatment ofthe costyi.e. conflicting authorities, overruJed,elc:- Look in thefront ofShepard's Florida
Cltationfor current status o/the case.
. .
.

21

·Florida PrisOD Legal Penpeetives

,Revisiting Denial of a Second or
· . F d IH .
Uccesslve ,e era abeas Corpus
Using' Recall of the Mandate

when the pleading is wholly inadequate to.overcome the
reasons for not gnmting the motion. '
Let's examine the restrictions. Too often' prisoners
neglect to state a federal issue. Although fililure to word a
by Ricard Geftken
r,
cause of action for which a federal court has jurisdiction
may be grounds to "prevent iqjustice," now is the time to
carefully. address why the 'claim shows the denial of a
Constitutional right If the claim relies on old. well
eave to seek a #lCCOnd or successive.28 U.S.C. § 2254
established federal law, it is.not "new".
.
habeas corpus application must be made to the
"new;'
survival
depends
on
one,
possibly
two,
If
appropriate U.S. Court of Appeals. Whether denied or
conditions.
It,
is
certainly
valid
grounds:
if
made
approved, the A&DPA quite oddly prohibited use of the
retroactive. The second possibility depends very much on
no~ channels to review ~ decision iyde by the court of
properly wording the pleading. Until federal courts close
first instance.
,
the
door on it, even old law is retroactive. if on direct
28 U.S.C. § 2244, (2)(E) reads: "The grant or denial of
appeal
of t~e issue raised in the state court for which the
, an' authorization by a court of appeals to file a second or
leave
was
sought in the first place, GrljJlth v. Kentucky
successive application shall not be appealable and shall .
107
S.Ct.
708
(1987), Harper v.. Virgiilia 113 S.Ct. 2510
not be the subject of a petition for rehearing or for a writ
(1993),
Beardv.
Banks 124 S. Ct. 2504 (2004). Notice the
ofcertiorari,"
adjustment
needed
in one's mentality. It is not that you
There is one way around this. Nothing prohibits a
were
on
direct
appeal.
It is that the U.S. Supreme Court
Motion to Recall the Mandate. The, only ground~ are
has
repeatedly
allowed
retroactivity during that period of
actually somewhat broader than bring something a court
time.
Prisoners
often
the
wrong thing. The court is not
ove,rlooked to its attention. The ground which must be
their
friend.
The
court
wants
to bar granting relief. •
plead and demonstrated is that, recall of fhe mandate is
lh
Was
the
claim
presented
to
a state court at aU? Federal
necessary to "prevent injustice." See e.g. Il Cir. lei. R.
courts
will
not
hear
a
claim
which
was' not fully exhausted
41~1. The wording in other U.S. Circuit Court of Appeals
in
the
state
system.
may differ.
,
If new evidence is involved, it will' "prevent injustice"
It is normally ~ier to show an injustice than an
,
only
when clearly and cOnvincingly argued that the
oversight which justices may tenaciously argue they either
would of, 'been different. Prisoner pleadinga
outcome
did not make, or now assert they already considered when
often
poorly
address Strick/and's prejudice prong. This Is
ruling. Here, one can' argue merits for a change, Instead of
a
similar
requirement
A court won't argue it for you, nor
the procedural quagmires used by Courts to avoid ruling
bother to figure out what is not expressly plead.
on the merits ofa case. .
,
The bottom line to using this tool may be securing the
Nowadays, courts spend more time arguing why they
assistance ofsome very good minds.•
should not hear cases than they' ,do hearing cases.
Procedural bars have, abdicated any claim courts remain in
the business' of providing' any '~ustice" at all. Seeking
recall of a mandate is one of the fe~ instruments which
still cares about whethet.1be result is inherentlyjust
There is also a one year time limit for filing it This is
far longer than most limitation periods.
However, justice can be circumvented if' careful
, attention is not paid to the grounds for which a second or
successive application can be allowed. 28U.S.C. § 2244(b) ,
states only tWo. The claim must rely on a new rule of
Constitutional Law rendered retroactive. Alternately, it
'.:'., .
,
must depend on newly discovered -evidence, and those
facts, ,if proved, must clearly and convincingly show that
but for the cognizable constitUtional error no finder of fact
would have found the applicant guilty.
.
Consequently, having circumvented one procedu~1
bar, a prisoner ends up subjected to more gate keeping
B~COME AMEMBER
designed to condone illegal imprisonment.
,
The strong warning being given hopes to stop the
common error of filing something without giving the
matter proper thought, It is foolish to seek recall of a
man~ one's only shot to reconsider denial of a leave,
22

S

L

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