RELIGIOUS FREEDOM STATUTE ADOPTED
by Teresa Burns
. Florida is only the third state that
has quickly responded to the U.S.
Supreme Court's striking down the federal
Religious Freedom Restoration Act of
1993 by adopting a state law concerning
religious freedoms. Floridians will have
greater protections from government
intrusions on their religious freedoms
under a law that Governor Chiles has
allowed to become law without his signature. The new law went into effect June
17th.
The new law requires courts to use
the strictest test, a "compelling interest"
test, in determining whether state or government actions infringe on the religious.
freedoms of Florida citizens. That standard had been in effect nationwide from
1963 through 1990 when it was struck
down by the U.S. Supreme Court.
The U.S. Congress had responded by
the adoption of the Religious Freedom
Restoration Act of 1993 (RFRA), but the
high court ruled last year that the 1993
federal law infringed on states' rights and
struck it down also. Florida has now
adopted its own version of the RFRA.
Only two other states, Connecticut and
Rhode Island. have a similar law. Legislation for such a law in Illinois is pending

IN THIS ISSUE
•

the governor's signature, and Alabama
is expected to put the issue before voters this year.
This law was not passed without
controversy in Florida. Florida's Attorney General Bob Butterworth had been
one of the leaders in pushing the U.S.
Supreme Court to overturn the federal
RFRA because prisoners were not exempted from the Act. Although it
received little mainstream media attention, prisoners being ex~mpted from
the new Florida law also stirred up a
hornet's nest during this last legislative
session.
State Rep. Allen Trovillion, who
is chairman of the House Corrections
Committee, and who has presented
an appearance of supporting religious
groups-and especially prison ministry
groups-received an education in April.
Trovillion, after having attended the
recent Criminal Justice Ministry Conference in Orlando sponsored by several
prison ministry groups (FPLP, Vol. 3,
Iss. 6. pg. II), and having assured them
he supported their efforts, went straight
back to the legislature and pushed to
expempt prisoners from the religious
freedom bill. It was a case of "read my
lips."
Trovillion found himself flooded

with phone calls during April protesting
his switch out stance to exempt prisoners from the bill. Prison ministry groups
all over Florida and from around the
country took to the airwaves on national
Christian radio shows criticizing Trovillion's stance. He was forced to
retract his position and vote to let the
bill (CSIHB 320 I) become law without
exempting prisoners. The House specifically voted against exempting prisoners
after that.
. It is interesting that AG Bob Butterworth did not have anything to say
about prisoners being exempted from
this state law, at least not publicly. Evidently he saw the writing on the
wall-that such a position would be
roundly criticized and opposed by the
influentially growing prison ministry
groups in Florida. Butterworth had been
one of the lead demagogues that argued
for the supreme court to strike down
the federal RFRA. claiming that if prisoners aren't exempted they will be
wanting to sacrifice chickens, use
drugs religiously, or practice all kinds
of "quack religions. t'
Governor Lawton Chiles said that he
earlier had concerns about letting the
new law be adopted because of fears
that prisoners would abuse the legis-

SERIOUS MEDICAL CONDITION-NICOTINE ADDITION
LITERATURE REVIEW
RULE REVIEW
NOTABLE CASES
$10 MILLION LAWSUIT FILED I PRISONERS DEATH
JUVENILE INJUSTICE
TELEPHONE OVERCHARGE REFUNDS

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lation. but enigmatically he has now
Slated that "it looks like we can worked
around those." Many in the religious
communities had feared th~t Chiles
would veto the legislation citing concerns
of prison officials.
Many prison activists and those in
prison ministries have said time and
again that prison officials are exaggerating those concerns. Courts are not suddenly going to uphold any religious
activity inside the prisons that creates a
true security concern. In such a case the
"compelling interest" test would come
into play. as true security concerns are a
compelling government interest in maintaining safe prisons. Both state and federal courts have the authority and responsibility now to dismiss any prisonerbrought legal actions that are patently
ridicul9US or frivolous. and it is reasonable to assume that they will exercise that
ability. Prisoners now are punished with
,loss of gain time and confinement for
filling frivolous lawsuits. the courts and
FDOC have been imposing such punishments.
The true "fear" of prison officials is
that they simply would have to accommodate prisoners wishing to practice
their religion. Prison officials view any
freedom granted prisoners. even religious. as a threat to their control. which
they desire to be total.
The good news is that all Floridians
now will perhaps have true protection
from governmental intrusions into their
religious rights. It is a basic principle
of both the state and federal Constitutions that the government will not interfere with the right to practice one's
religion. The Florida legislature has
only affinned that right with this new
law.•

SERIOUS MEDICAL
CONDITION-NICOTINE
ADDICTION
On May 5th, in what attorneys in
the case called a historical settlement.
Thomas Waugh settled his federal lawsuit against the Florida Department of
Corrections (FDOC) for help in
kicking his nicotine addiction. Waugh.
a Florida prisoner. agreed to settle the

F.P.L.P. VOLUME 4, ISSUE 4

case on the second day of trial' after four
FDOC Assistant Secretaries appeared in
court and expressed a desire to settle
the case. After nine hours of hammering out the specific terms a settlement
was reached giving Waugh what he was
asking for-nicotine patches and Zyban-to help him quit smoking.
Governor Lawton Chiles had to be
contacted to approve the agreement.
This settlement is the first time the
FDOC. or the State of Florida, has been
forced to provide medical assistance
to someone to quit a tobacco addiction.
It was an amazing case that has set historical precedence for those addicted to
nicotine. and especially for prisoners
who have no way of obtaining assistance in kicking their nicotine addictions which the state promotes by selling
them millions of dollars worth of tobacco every year. at a cost to taxpayers
of millions more.
The full story in Thomas Waugh's
case has never been told and appears
here in FPLP for the first time. No
punches are pulled. The lies and underhanded tactics that are commonly used
against prisoners whenever they attempt
to vindicate legal rights are exposed
here. It took courage and detennination
to do what Tom Waugh did. and that
courage and detennination will benefit
all Florida prisoners who follow Tom's
lead.
"
FDOC: Nicotine Isn't Addictive
When Tom Waugh asked an
FDOC doctor for help in Ikicking his
smoking addiction in 1994 he was told
that "whether nicotine is addictive or not
is a gray area" and that it was his choice
"whether you purchase these products or
not." Waugh's request was denied. This
occurred at the Florida State Prison
medium security work camp where
Waugh was serving a 20 year prison
sentence for unanned robbery.
Tom Waugh. a smokerfor21 of his
37 years. was not expecting such a
cavalier response to his plea for medical
help to quit smoking. He had tried to quit
on his own several times and had been
unable to. In August 1994 Waugh read

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Page 2

that the Federal Drug Administration
had declared nicotine an addictive drug,
the same as heroin or cocaine. After
reading a lot of the current information
on the negative effects of smoking and
. the medical position that nicotine addiction often requires medical treatment to successfully quit, Waugh
thought if he had access to some type of
cessation aide like nicotine patches or
gum he could finally quit.
But that was not to be. The prison
where Waugh was did not sell tQbacco
cessation aides. no prison in Florida
does, although they do make a killing
selling millions of dollars worth of tobacco to prisoners every year. Nor was
Waugh allowed to have someone on the
outside purchase and send him nicotine
patches or gum so that he could try to
quit, Florida prisoners are strictly prohibited from receiving any medical assistance from the outside, even when
they offer to pay for it themselves.
Waugh, reaYlzing that he was truly
addicted to nicotine, and that it was not
as simple as the FDOC medical staff
claimed, continued trying to get help to
quit smoking. The only avenue open to
him at that point was to pursue help
througl\c-the ..pRson grievance procedures. Waugh hoped to reach someone
in the FDOC bureaucracy who was familiar with the same widespread reports
on nicotine addiction. However, even
though Waugh referred to his sources of
information in his grievances, they
were denied and when he appealed to
the Chief Medical Officer of the FDOC
in Tallahassee he was also denied help
there. The responses to Waugh's
grievances and appeals maintained essentially what the first doctor had told
him: that nicotine isn't addictive and
that he n:tight as well quit on his own
~ause the state will not provide him
any medical assistance in the form of
nicoline cessation aides, nor allow him
to obtain them from anywhere else.
Crucially, the FDOC did not provide
treatment for nicotine addiction in any
manner.
Waugh did get something from his
grievances. After filing them Waugh
found himself singled out by prison of-

F.P.L.P. VOLUME 4, ISSUE 4

ficials for a fabricated disciplinary ac- free to quit cold turkey."
Assistant Attorney General (AAG)
tion. And in March 1995 Waugh was
suddenly transferred from the medium Donna LaPlante continued on in the
security work camp to a higher security motion to dismiss to assert that the
major prison, Columbia Correctional, "[d]efendants are not responsible for
reputedly the worse managed prison in [Waugh'S] decision to purchase
Florida.
cigarettes any more than they would be
Reluctantly, after failing to get any- responsible for [him] buying a candy
one's attention in the FDOC that viewed bar at the canteen." The motion to disnicotine addiction in the same light as miss also stated that Waugh "is in no
the federal government, during July way entitled to medical intervention to
1995 Waugh filed a civil rights com- 'cure' a habit which [he] himself continplaint in the federal district court in ues to indulge, and over which [he] has
Jacksonville, Florida. Waugh claimed ultimate control."
that prison officials were being
The court, however, refused to ac"deliberately indifferent" to his serious cept that simple an argument and for the
medical need to kick his nicotine addic- next year and a half Tom Waugh contion. He was not seeking any money, he tinued to litigate back and forth against
only wanted the FDOC to furnish or the state which tried every tactic in the
make available for sell to prisoners book (and some out of the book) to
proven nicotine cessation aides-or as a have his case thrown out of court.
last resort, for the FDOC to establish
The state even attempted to persmoking and non-smoking prisons.
suade federal Judge Harvey Schlesinger
There was U.S. Supreme Court case that Waugh had access to sufficient
law in support of Waugh's claims. That smoking cessation aides provided by
court had held in 1976 that prison the FDOC-written booklets about the
officials could not be "deliberately in- effects of smoking and the medical
different" to the serious medical needs need to quit. Unfortunately, for. the
of prisoners in the case Estelle v. Gam- state, upon closer examination those
ble. As recent as 1993, in another booklets all stated that c!=ssation aides
lankmark case. Helling v. McKinney, such as nicotine patches are an essential
the U.S. Supreme Court had ruled part of treatment for nicotine addicthat exposing non-smOking prisoners tion. The state was embarrassed. but
to second-hand smoke of other pris- simply ignored the inconsistency and
oners, because of the serious medical kept plowing blindly on. After all it was
consequences associated with what is just a prisoner who had filed the suit,
termed Environmental Tobacco Smoke who was the court suppose to believe?
(ETS), violated the Eighth Amendment
of the U.S. Constitution's ban on cruel State V. Big Tobacco
and unusual punishment.
Nicotine Highly Addictive
Attorneys from the State Attorney Ironically, at the same time that Tom'
General's (AG) office were assigned to Waugh was preparing and litigating his
represent the FDOC in Waugh's largely unknown case against the state,
lawsuit. Those attorneys, under AG another lawsuit concerning tobacco and
Bob Butterworth, responded to Waugh's. its effects that would gamer state and
legal action by trying to have it dis- nation-wide attention was being premissed. The state asserted that the pared. That case was the State of
FDOC was not deliberately indifferent Florida's case against the major tobacco
to Waugh's serious medical needs, and companies seeking to recover alleged
while supporting the position that Medicaid costs that the state had
Waugh received in his prison expended in providing medical care for
grievances, these attorneys maintained smoking related illnesses to Medicaid
that: "If [Waugh] feels that he is ad- patients.
dicted to nicotine, and that this is a
The state, through AG Bob Butterserious medical condition, he is always worth and the state legislature, had been

Page 3

planning for years to sue the tobacco
companies under the claim that they
were addicting people to nicotine and
then leaving the state to pick up the tab
when these· people became sick with
tobacco-related diseases. A key to the
state's legal strategy was to change
Florida law to make it easier for the
tobacco companies to be sued and
harder for them to defend themselves.
To achieve that goal, in 1990 the
legislature, with the guidance of Bob
Butterworth. amended its Medicaid
Third-Party Liability Act. Then in 1994,
as tobacco became big news all over the'
country, the Act was amended again.
This was done to virtually assure that
the state could not lose when it sued the
tobacco industry (or any other industry)
to recoup claimed Medicaid expenses
that amounted to billions, according to
the state.
These amendments practically
rewrote the traditional rules on common
law torts in Florida. The amendments
abolished the "assumption of risk" defense for industries-the defense that
the plaintiff knowingly took the risk and
so could not recover damages. The
amendments also provided that
"causation" no longer had to be specific.
Where in ordinary tort cases the plaintiff has to show that the particular
defendant caused the plaintiff hann,
under the amended Medicaid Act the
state
(plaintiff)
could substitute
"statistical analysis" for specific causation.
Under the amendment, the state no
longer had to identify the actual Medicaid patients it was supposedly trying to
recoup medical expenses for, the statute
of limitations on bringing such an
action were abolished; while liability
could be "apportioned" based on
"market share" among several different companies; and the state was authorized to obtain attorney fees, if it won,
to pay for attorneys outside the AG's
office to litigate any such case
(probably to avoid sabotage from
inside the AG's office with the amount
of money involved). The state could not
lose under these rules, or so it was
F.P.L.P. VOLUME 4, ISSUE 4

thought.

was amended upwards to $4 million in another

Once Florida had its "laws" in order. that
gave the state e\'cl)' advantage. it filed suit in
1995 (the same ycar that Tom Waugh filed his
action) against several major tobacco companies, Yet. totally different from the position
that the state was taking in Tom Waugh's ease,
in the state's lawsuit against the tobacco companies it was claimed that "cigarettes .,.
contain nicotine. a highly addictive substance."
and that "the [tobacco companies] know of the
difficulties that smokers experience in quitting
smoking and of the tendency of addicted individuals to focus on any rationalization to
justify their continued smoking." The state's
lawsuit assened that "nicotine addiction is similar to the additions of illegal drugs such as
heroin. cocaine. and amphetamines." and
that the "addictive nature of nicotine in
cigarettes virtually extinguishes personal
choice in those who become addicted,"
In a planned campaign in support of the
state's lawsuit against the tobacco companies,
after the action was filed. Florida's Governor.
Lawton Chiles. and Attorney General. Bob
Butterworth. were notable for leading the public media blitz designed to obtain and keep
public support for the state's position. Governor Chiles and AG BUllenvorth were both in
the news frequently denouncing the tobacco
companies and railing about how they knowingly addicted smokers, targeted minors, and
lied about nicotine addiction and the serious
health effects of smoking. Bob, Butterworth
was seen on national 'IV almost ·crying while
he wondered how many'lives would have been
saved if the tobacco industry had not lied to
smokers about the dangers of tobacco.
The state's lawsuit proceeded from 1995
until early 1997 with the state appearing to
have a hands-down win of the case that was
scheduled for trial in August of 1997.

in-house memorandum sent to the FDOels
legislative director on March 1/.1998.)
This was too much for some state lawmakers. Bills were filed in both the state Senate
and House during 1997 to completely ban
tobacco inside Florida's prisons. These bills
would have imposed a ban 'on prisoners-and
staff, which was a mistake. The inclusion of
staff in the prison tobacco ban bills sparked a
firestorm,
'
Upon announcement that the prison tabacco ban would also affect FDOC staff an
explosion of opposition erupted during the
1997 legislative session. Instead of focusing
on the fact that many correctional officers
would quit the department rather than give up
the butts (and where there is an approximate
33 percent turn-over rate of department staff
already) a smokescreen was decided on and
the emphasis was shifted ol)to an alleged
"security threat" that prisoners would present
ifsuch a ban was adopted.
Organized cadres of correctional officers,
supported by the FOOC central office and the
Police Benevolent Association (a union that
represents many correctional officers in
Florida). rallied in the capitol in protest of the
prison tobacco ban. These rank-and-file correctional officers loudly decried that such a
ban would cause riots and increased assaults
on officers by prisoners.
FDOC spokeswoman, Kerry Flack. was
quoted in the mainstream news media as Saying."lf you prolil6it' cigarettes, \hey become
contraband, then become the drug of choice.
Then officers are assaulled by frustrated inmates." FDOC sergeant S.D. Williams told
the legislature, "If you take these cigarenes
away... you're going to have officers
going 10 tbe hospital in large numbers," and
that they should have they ambulances ready
on the day ban becomes effective. But no
evidence was ever offered that would support
Using Tobacco to Control
At the swne time that the ~~e was suing any of these spurious claims. In fact, the
the tobacco companies for selling cigarettes, statistics showed the exact opposite. Several
addicting people to nicotine, lying about states have banned tobacco in their prison
nicotine not being addictive. targeting minors. systems with the only problem being blackand even engaging in a RICO orgl11lized type markets operated by prison staff. Most county•
crime violation. while leaving the taxpayers to jails in Flonda have banned lobacco and it
pay the costs. out of the public's eye the state has caused very few problems among
itself was also buying millions ofdollars worth prisoners.
of tobacco from the tobacco companies and
Another reason for the FDOC's.opposition
selling it to Floridians-who just happened to be to banning tobacco in the prisons did become
apparent, however, when a spokeswoman for
prisoners.
According to a 1997 legislative report, an Governor Lawton Chiles. Karen Pankowski,
estimated 75% of Florida's prison population defended the state selling prisoners tobacco
are tobacco smokers, and presumably addicted in a news release. "We know that cigarettes
to nicotine. In an in-house report compiled are one way 10 help control the prison populaby the FDOCs Office of Health Services, tion. Taking them away would create one less
dated February 25, 1997, it was estimated that tool corrections officers have in guarding our
the potential per-year health care costs related prisons." said Pankowski.
to tobacco use in prison has been "exceeding 2
And then there are the economics involved.
million dollars for some time." (This estimate In the 1995-96 fiscal year the FDOC pur-

Page 4

chased more than $S million worth of tobacco
products for resell to prisoners. Gross sales of
tobacco to Florida prisoners during 1996 alone
totaled $7,592,712. Tobacco is the biggest
selling item sold in the prison canteens. according to FDOC sources.
The scare tactics and economic realities
worked. The legislature. especialiy overwhelmed by the vociferous response from the
moe. shelved the prison tobacco ban bills
during 1997 for reconsideration in 1998 with
the ban on staff use oftobacco removed.
It is notable that those bills did provide
that when tobacco was eliminated in the prisons that a smoking cessation program would
have been offered. but according to an April
II, 1997. legislative committee report that
program would only have consisted of pamphlets. reports. and training aides. The bills did
not suggest that the FDOC would provide
nicotine patches or medication when the ban
was imposed.
Joe Camelis a COD
Meanwhile, back in the state's suit against
the tobacco companies. in March 1997 the
state's litigation team was shocked when the
tobacco companies filed a counterclaim
against the state. The counterclaim alleged that
the state had engaged in the same conduct
alleged against the tobacco firms manufacturing tobacco, addicting people. and leaving
taxpayers to pick up the tab.
~ Tobacco attorneys were allowed to introduce1flreiiiifelltalfon that from 1935 until 1979
the State of Florida. through its Department of
Corrections. had manufactured. distributed.
sold. and even provided free tobacco and
cigarettes to both adult and juvenile offenders
in state facilities. Even though it is illegal to
give or seU cigarettes to minors in Florida. the
tobacco companies produced a 1993 memo
showing that the state had spent taxpayer
monies to buy cigarettes from a private company for distribution to juvenile detainees.
Numerous Florida prisoners. including the
author of this anicle. provided depositions
detailing the history and practices of the
FDOC in providing free tobacco and cigarettes
to prisoners up until 1979. Documentation
introduced by attorneys for the tobacco
companies showed that between 1972 and
1980 the state of Florida spent more than
$500.000 a year in taxpayer monies on free
cigarettes for prisoners. Some of the deposed
prisoners who had received the free tobacco
and cigarettes had indicted that further digging
would reveal kickbacks to prison officials
from the tobacco suppliers. many of whom
were North Florida tobacco growers. which
may have been one real reason for the free
cigarettes. The mainstream news media carried
headlines stating. ~State Secret: Prison Made
Cigarettes." The state was embarrassed as its
o

•.

F.P.L.P. VOLUME 4, ISSUE 4

case started going up in smoke.
Just three months later. in June 1997.
the attorneys for the tobacco companies
staged another coup against the state's
position. The tobacco attorneys had discovered Tom Waugh's lawsuit. In Waugh's case
the state was claiming that nicotine is not
addictive and is a personal choice over which
Waugh "has ullimate control," Yet in the
state's case against the tobacco industry the
total opposite was being claimed-that tobacco
is so addictive it "virtually extinguishes personal choice in those who become addicted."
The mainstream news media headlines
blared "State Accused of Double Talk." A
spokesman for AG Bob Butterworth. Peter
Antonacci, was left to try to explain the apparent hypocrisy. ~We're in an uncomfortable position here beeause we're in the middle." Antonacci said. The state was so embarrassed by
this tum of events that it was forced to settle its
case against the tobacco companies for SI1.3
billion in August 1997 rather than take the case
to a jury trial.

gain time, plus make him pay all the costs oflhe
action. This also did not dissuade Waugh. (AAG
Cecilia Bradley later vehemently denied having
made that offer or threat when it came up during
a deposition.)
During late June 1997 Waugh was asked to
give another newspaper interview. Overnight
that interview was reponed in newspapers and
Waugh'S case was widely publicized. Again
AG Butterworth's spokesman. Peter Antonacci.
went into spin-control mode when asked about
the inconsistencies between Waugh's case and
the Slate's case against the tobacco companies.
Antonacci was forced to admit, however. that
the prison doctor who responded to Waugh's
prison grievance ~very carelessly and haphazardly said cigarettes are not addictive."
Neither Antonacci. nor other state officials.
carcd to explain why that doctor's ~eareless and
haphazard" response had been upheld though all
levels of the grievance process, or why it had
been defended by attorneys from Bob Butterworth's office for the previous two years that
Tom Waugh had been fighting single-handedly.
and without much legal experience, just to keep
FDOC Litigation Tactics:
his case alive. In fact, no one ever explained
why the attorneys general's office continued
But what was happening with Tom Waugh gathering affidavits from FDOC officials for use
while all these big money power moves were in Waugh's case which stated that nicotine is not
being made between the state and the tobacco addictive.
companies? On June 2. 1997. reporters from
the Capitol News Services interviewed Waugh Dream Team Shatters Defense
for a,television story about tht; inconsistencies
As usual with any prisoner litigation in
in the state's position in his case as opposed to Florida. once the state's attorneys realized Ihal
the position being taken in the Medicaid case. Tom Waugh could not be bribed or intimidated
Three days later Waugh was asked to give a into dropping his suit. they begin to inundate
deposition for the tobacco companies against him with complicated. and largel)' frivolous.
the state.
legal proceedings designed to bog him down in
One week after Waugh give that deposi- a furious flow or paperwork that he would not
tion an alleged institution-wide search was be able to respond to and procedural deadlines
conducted at Columbia Correctional Institu- that he would not be able to meet. This tactic is
tion. Drug sniffing dogs were brought into the designed to afford the state a procedural default.
institution and were taken directly to Tom leading to dismissal ofthe case.
Waugh's cell. According to the officers in
In particular. the state filed several motions
charge, the dogs "alerted~ to drugs in Waugh's for summary judgment trying to out-litigate
cell and a search was conducted but no drugs Waugh. Without much legal experience.
could be found. This did not deter prison Waugh. nevertheless. managed to keep up with
officials. Tom Waugh. along with approxi- and actually defeat the best efforts of the state's
mately 25 other prisoners whose cells the dogs attorneys. But. he was beginning to tire.
. also supposedly "alerted" in (so. Waugh could
A trial had originally been set in Waugh's
not say he was being singled out apparently) case for August of 1997. Yet. the state wasn't
were handcuffed and temporarily held in con- quite ready and had the trial postponed. The
finement and subjected to a ~for cause" urinal- state was working on refining its defense with
ysis test. Only one of the 25 tested positive for the position that since Waugh was claiming to
drugs. and Tom Waugh had to be released.
have an addiction that the FDOC had numerous
About that same time. one of the state's substance abuse programs to address his probattorneys. Cecilia Bradley. interviewed lem. The state asserted that groups like A.A..
Waugh and 'otTered him a transfer to a "better" N.A.. Tier groups. Wellness groups. and surprison-if he would drop his case against the prise. a brand new nicotine addiction program.
state for nicotine cessation aides. Waugh de- "Fresh Start." is all prisoners need to kick nicoclined that "generous" offer. Bradley's re- tine. The Fresh Start program was implemented
sponse was to inform Waugh that if he did not in a direct response to Tom Waugh's lawsuit in
voluntarily dismiss the case that the state October 1997. The program consists of 4 one
would seek to forfeit all his previously earned hour meetings with a FDOC recreation coach

Page 5

who received one hour of video training in
how to give the course. No nicotine cessation
aides are available in the course. although they
are recommended by the course materials distributed to prisoners.
Now the state was ready to take Waugh to
trial. He would be overwhelmed with FODC
"experts" testifYing that nicotine is not addictive, that he would have no way to counter. and
the coun would be bombarded with all the
substance abuse programs and booklets available to prisoners who want to quit smoking.
But. the state had delayed too long. Tom
Waugh was contacted in November 1997 by a
trio of Jacksonville attorneys. George Shultz.
Scott Maker. and Patricia Sher. from the law
finn of Holland and Knight. The judge had
asked them to represent Waugh. The state's
attorneys were stunned. Tom Waugh had a
dream team that few prisoners could ever hope
for in a prison conditions case.
Within weeks of taking the case. Waugh's.
allorneys placed the stale firmly back on the
defensive. During August Waugh had introduced the state's case against the tobacco com·
panies into his lawsuit. His attorneys developed that imponant move by obtaining copies
of many of the discovery documents that were
tiled in the state's case. This included depositions from FOOC officials that were taken
after the tobacco companies exposed that
the state had manufactured, sold. and provided free tobacco and cigarettes to adult and
juvenile prisoner~ for decades.
The state and FODC begin scrambling like
rats in one of the old Florida State Prison
tobacco warehouses. When Waugh's attorneys
pointed out that many of the counselors of
the FOOe's substance abuse programs were
smokers themselves an emergency memo went
oul January 20th to the program contractors
informing them that substance abuse coun·
selors are prohibited from using tobacco inside the prisons.
By February 1998, Waugh's attorneys had
forced the state to partially admit. through
discovery interrogatories and admissions
based on the state's Case against the tobacco
companies. that the state believes that
nicotine is addictive. The state was also,
forced to admit that nicotine addiction is
similar to addictions to drugs such a heroin.
cocaine. and'amphetamines. Also admitted was
that Florida prisoners have experienced prema·
ture deaths related to tobacco; that nicotine
virtually extinguishes personal choice in those
addicted to it; that the FODC continues to sell
cigarettes to prisoners; and that in the past
the FODC (a state agency) manufactured.
assembled. and engaged in the production of
high tar and nicotine cigarettes.
The FOOC. through its barely competent
attomeys. retrenched in the old blanket that it
throws up whenever backed into a cornersecurity. Mendaciously it was claimed that

F.P.L.P. VOLUME 4, ISSUE 4

nicotine cessation aides would be a very dangerous security threat if provided to prisoners.
The state objected to nicotine gum on the
fairly reasonable ground that it could be used
to foul up locks inside the prisons. But the only
"threat" they could come up with concerning
nicotine patches was that they could be used to
"inject" illegal drugs like heroin and
cocaine. The state claimed that medication
like Zyban could be "checked" by prisoners
and then sold on a black-market. Each of those
claims were picked apart by Waugh's dream
team.
The "security threat" defense was further
eroded when Waugh's attorneys produced the
results of a study showing that 30 other states
make nicotine patches available to prisoners.
Of those states. 13 allow prisoners to
purchase nicotine patches in the commissaryl
canteen. and 13 states provide medication
(Zyban) in conjunction with nicotine
patches. No states had reponed a security
problem with nicotine patches or nicotine
therapy medication.
During the first weeks of February new
depositions were taken of FOOC security and
medical officials. Top FOOC medical officials tried to straight-face claim that they do
not believe nicotine is addictive. nor believe
that nicotine cessation aides have been shown
to work. Exhibited was an almost complete
ignorance of current medical standards as regards nicotine cessation.
In late February Waugh's ~t1orneys announced that they intended to' present Dr.
David P.L. Sachs as an expert witness f,or
Waugh. Dr. Sachs is a nationally recognized
respiratory research scientist and director of
the Palo Alto Center for Pulmonary Disease
Prevention located in California. 111 connection
with his extensive research. Dr. Sachs has
done numerous well respected studies on tobacco's effects and nicotine treatment. He
served as a consultant to fonner U.S. Surgeon
General C. Everett Koop, and 'currently is
also an attending physician at the Stanford
University Chest Clinic that specializes in
pulmonary medicine.
A deposition was taken from Dr. Sachs on
February 26. 1998, which proved devastating
to the state's position. In that Ueposition Dr.
Sachs testified as to his extensive research
concerning tobacco and nicotin~ which had
started as early as 1976. In a prior examination
of Tom Waugh. Dr. Sachs had diagnosed
Waugh as having chronic bronchitis related to
smoking. Other points made by Dr. Sachs included:
•
That scientific data consistently shows
that use ofnicotine cessation aides doubles and
triples the chance of quitting smoking and
staying stopped.
• According to studies, only between 2 and 5

percent o( people are able to quit c'old turkey
and stay off nicotine for a year.
• The current standards of medical care
adopted by the U.S. Department of Health and
the American Medical Association accepts that
nicotine cessation aides are a necessary component of treatment for nicotine addiction.
Within a week of Dr. Sachs deposition being
taken the state began offering suggestions for a
settlement of the case. Two FODC polie)'
bulletins were produced: Health Services Bulletin 15.03.35 (Effective date 3/5/98). and
Education and Job Training Bulletin 98-0.1
(Effective date 312198). Both these bulletins
establish a policy for the implementation of a
tobacco cessation program for prisoners. including nicotine cessation aides. Essentially.
the program requires a prisoner wishing to quit
using tobacco to participate in the Fresh Start
course. Upon completion of Fresh.start if the
prisoner has not quit tobacco he may request a
referral to a Tier 2 program that has been
modified to include nicotine cessation. If after
two months in Tier 2 the prisoner still requires
additional cessation assistance he will be referred to Health Services which may prescribe
nicotine patch treatment.
In Tom Waugh's situation, however, the
state was trying to get him to agree to being
placed in the prison medical clinic before. he
could receive nicotine patches. The state also
did not want to give Waugh Zyban in conjunction with the patches. Both of those issues
were not acceptable to Waugh or his anorneys. The state maintained that these issues
were not negotiable and the case proceeded to
trial on May 4. 1998.
A Battle Won
After only one day of trial with Dr Sach's
on the stand the slate and FOOC gave up. On
the morning of May Sth FODe officials BAd
their attorneys appeared in court almost frantic
to settle the case. Dver the next nine hours of
settlement discussions Florida's governor,
Lawton Chiles, was personally called twice to
approve parts of the settlement.
At the end of the discussions, Tom Waugh
had got what he had sued for. The settlement
agreement provides, in pertinent pan. that:
• The FDOC admits that Tom Waugh's
nicotine addiction co.nstitutes a serious
medical condition.
• The FDOC shall provide Tom Waugh
with an examination by a neurologist and
pulmonologist that meets his approval••
• Unless not recommended by such

Page 6

medical professionals, Waugh will be
J)Tescribed Zyban and nicotine patches.
• Waugh will have to participate in the
Tier II Two-Month Core Program and live
in a smoke-free dormitory during patch
therapy treatment.
• Waugh's attorneys agreed to waive in
excess of $250,000 in attorney fees (they
were not after money).
• And, the FDOC will pay Waugh's costs
and expenses of$65,OOO.
the Side Lines
A prison tobacco ban bill was again introduced in both the Florida House and Senate
during this 1998 session. Unlike the 1997
bills. these bills would have allowed correctional staff to smoke and use tobacco inside
the prisons. There was absolutely no claims
from the FDOC this time that banning tobacco
would create a security risk from prisoners.
The House passed its bill but the Senate failed
to pass theirs, thus killing the issue for another
On

year.

The 1998 legislative session did vote overwhelmingly to repeal the Medicaid Thirdpany Liability Act. legislators said it had
served ;t's purpose with the tobacco companies' settleJ1lent. Controversy continues to
surround that settlement where the state has
refused to pay the 12 private attorneys who
represented the state an agreed upon 25% of
what was recovered. Asenate ethics panel lead
by state senator "Gangbang" Charlie Crist has
largely been unsuccessful in investigating the
negotiations involved in the tobacco settlement.
A federal grand jury in Tallahassee is also
looking into Governor Lawton Chile's and AG
Bob Butterworth's involvement in the tobacco
settlement and alleged renege on the lawyers'
fee contract. During May. the governor's former chief inspector general. Harold Lewis,
refused to answer any questions put to him by
that grand jury. pleading the Fifth Amendment right against self·incrimination I 18
times during questioning. It h~ been implied
that AG Bob Butterworth never intended that
the private attorneys would receive the agreed
upon attorney fees. Business as usual. ·BOB
POSEY.

LITERATURE REVIEW
Death Penalty/Criminal Justice
Frontiers of Justice, Volume 1: The
Death Penalty; Volume 2: Coddling or

F.P.L.P. VOLUME 4, ISSUE 4

Common Sense?
is an appeal to those that want to punish,
Edited by Claudia Whitman. Julie Zim- inflict pain and demonize. Only a demamerman & Tekia Miller
gogue would claim that coddling occurs."
Biddle Publishing (1997-98)
The authors in this collection include
!
professionals in law, law enforcement and
As the professed War on Crime in corrections, from volunteers and advoAmerica continues little in the way of cates to crime victims and offenders themeffective stategies to reduce crime has selves. This anthology explores how sociemerged. Instead. capital punishment and ety has been induced to tum from rational
"tough on crime" tactics have increased. programs that have been proven to
The crime rates continue to drop as the work to reduce crime and recidivism to
incarceration and recidivism rates con- avoid an appearance of "coddling" crimitinue to rise. The United States has the nals.
infamous distinction of using capital punAvailable from: Biddle Publishing
ishment more than any other industrialized Co.• P.O. Box 1305 #103. Brunswick, ME
nation in the world. while also leading the 0401 I. Price: Volume 1 @ SI5.95; Volworld in the use of incarceration and im- ume 2 @ $19.95. Shipping: $2 first book,
prisonment.
.50 ea add bk. Sales tax (Maine only) 6%.
These two volumes are a collection of Send check or money order to Biddle
essays from various authors, bringing to- Publishing Co.•
gether voices of reason amid the
knee-jerk clamor for revenge and retri- Federal Post Conviction
bution as the solution to the crime prob- Secret Tools For Post-ConvietioD Relief
lem.
by Joe Allan Bounds
Volume I: The Death Penalty (268 Zone DT Publishing (1998)
pgs.), is perhaps the most powerful anthology today representing men and
Styled as: "The Manual for Lawyers
women of reason and conscience, both the and Post-Conviction Litigants for Preincarcerated and the free, who deplore the vailing on Ineffective Assistance of
use of legalized killing to solve America's Counsel Claims, and Methods ofEstabcriminal justice problems. The more lishing 'Cause' for Procedural Default"
than 30 authors in this collection have this book covers a large variety of issues
all been personally touched in one way or associated with post-conviction relief
another by capital punishment. Essays practice. This soft bound volume has 314
are presented by prisoners sentenced to pages with a 13 page table ofcontents.
death, their families and their victims' Topics include, but are not limited to:
families. by professionals in the areas of Preparing for Post-Conviction Relief; Inlaw, criminal justice, government, reli- effective Assistance of Counsel; Conflict
gion, journalism and advocacy.
of Interest; Retroactive Application of
Volume 2: Coddling or Common Law; and InterveningCharige of Facts.
Sense (383 Pgs.). Former U.S. Attorney There are over 400 quick reference
General Ramsey Clark intrOduces the subtopics with favorable federal case law
tone of the essays in this volume with his citations and synopses.
"America's War on Crime." Clark writes: This is primarily a research reference.
"Politicians appeal to the worst instincts
Available from: Zone DT Publishing.
in society"':-fear, hatred, racism, greed. P.O. Box 1462, Allen, TX 75013-0024.
They fail to address realistically the Regular Price: $69.95, plus $5.00 S&H.
meaning of crime in a society and the Prisoner discounted price: $49.95, plus
means of. its prevention. Shouts or' S5.00 S&H. Check or money order
'coddling' criminals ring out from these payable to Zone DT Publishing. Allow
political protectors of the people; they rail I-3 weeks for delivery. •
against programs which have the potential
of providing a safe return from prison to
RAINES SETTLEMENT
society, sentences that are less than dracoPUBLISHED
nian, or failures to seek the death penalty.
No society has ever coddled people it calls
In the last issue of FPLP was coverage
criminals, or the poor from whom most
of
the
U.S. Supreme Court granting certiacharged with crime come. Use of the word
~

Page 7

rari ~view ofa case involving the applica.
bilily of the Americans with Disabilities
Act (ADA) fO prisons (FPLP. Vol. 4. Iss.
3. ~U.S. S. CT. GRANTS CERTORARI
REVIEW OF APPLICABILITY OF
ADA TO PRISONS"). ThaI anicle also
included some discussion of lhe recent
selllemcnt of Raines v. Stare. a class aclion concerning lhe inabilily of disabled
Florida prisoners 10 cam gain lime in the
same manner as non-disabled prisoners.
That discussion noted that a previous
opinion in the Raines case had just been
released in published (ornt on March 2.
1998. approximafely one year aftcr the
opinion was wriuen.
At the time that the anicle in rhe last
issue of FPLP was writlen the selliement
agreement in Raines had nOI ~n published. The last issue of FPI.? had already
betn laid out \Ihen the settlement was
published and change was not possible.
The published selliement agreement appears al; Raines v. Slate. 987 F.Supp.
1416 (N.D. Fla. 1997). It is nOlcd thaI a
stipulation in lhe sellicmem provides thltt
lhe continued validity of lhe settlement
depends on what the U.S. Supreme Coun
decides on the issue of whether the ADA
applies 10 prisons. Raines, supra at 1420.
As noted in the previous anicle.
copies of the settlement Ihat were initially placed in the la" libraries .... ere
thtn removed in a S)'Slcm-wide "security"
raid prevcntmg access to affecled prisoners. A full copy of the senlement is now
a\'ailable in published fonn as above.•

RULE REVIEW
First Amendmcnt TargClcd
"Nobody //Iisses tI,e foss oj
anotller //lUll ~ Jucdom."
-In'ing Stone from rile AgollJ
ulld II,e Ecstasy
Over the past fe\\ years Florida prisonen have largel) sal unconscious as more
and more restrictions have been placed on
almosl every gain that was achieved during lhe 60s and 70s. Prisoners have did
little but act stunned lind gripe and whine
as medical co-paymcrtlS were introduced,
as legal copying costs (even for the indigent) were implemented. liS new reslrictions and higher COSIS \Iere placed on the
colleel telephones. package permits pro-

F.P.L.P. VOLUME 4, ISSUE 4

hibited. personal propeny taken. canteen crearing authority for a three-mem~r
prices increased exorbitantly. Not even Non·Conlacr Visiting Team to be
aware of .....hal is happening until il is a established at each instilulion "hich will
fact. prisoners ha\e obtusely wntched the be allo\\ed to prohibil COnlact visits be·
severe reductions in educational programs. tween prisoners and their families and
elimination of Inmate Welfare Trust (sic) friends for a variely of vague and arbitrary
Fund benefits. reductions in the law li- reasons. Such non-COnlaet visiling will
brary collections. incrensed used of sen- become routine and may be imposed and
sory depriving confinement (GM). and extended for six monlh periods al a timewholesale denial of due process in disci- indefinilely.
plinary proceedings.
Instead of devoting themselves 10 leam- Personal Mail Proposed Itules
ing how to and legally challenging rules.
On May 29. 1998. the FDOC published
policies and illegal laws. most prisoners the final rulemaking nOlice to adopt new
have been content as long as they don't and amended Routine Mail rules al 33miss "Pinky and the Brain" or the basket- 3.004. F.A.C. These new regularions (Ihat
balllfootball game oa TV. Instead of de- may be in effect by the lime you read this)
voting every minute. or even a few min- creales severe restrictions and prohibiutes a day. to educating themselves about tions on prisoners' incoming personal
what is really happening around them, the mail. In pan, poSlage slamps in letters will
majority is content 10 gripe and rumor- be prohibiled. only 5 SASE en\elopes
monger while wairing for someone else to may be received through routine mail. no
file a grievance or suit 10 challenge or blank greetings cards will be allowed,
change excessively onerous. or outright only 5 pages of written or printed material
illegal. conditions.
Ollter than letters will be allowed per inNow lhis majorily can quielly chew coming envelope. and mail will be reo
their cud as their most imponanl rights- jected for non-compliance with any oflhe
First Amendment righls·are largeled, and above.
their contacl, association and interaction
wilh almosl every facet of Ihe outside LegallPrivileged Mail Proposed Rules
world is restricted or prohibited.
Also on May 29, /998. Ihe FDOC pul>lished a final rulemaking nOlice 10 3dopt
New PubliC3tionlDook Rules
new Legal and Privileged Mail regulations
On May 10. 1998, new FDOC rules and at 33-].005 and 3]-3.0052, F.A.C.
policies concerning books and olher publiThe new Legal Mail rules will provide.
cations lhat prisoners mayor may not in pan. that indigent prisoners will no
possess, and procedures for rejecling. longer receive ;my free postage for legal
confiscaring. and tightly controlling pris- mail. Auomeys or the courts will not be
oners' access to alrnosl all reading nllller(· allowed 10 send pholographs concerning
also became effective al Rule 33-3.012, anything other than il criminal case to a
F.A.C. and Policy and Procedure Dirtt- prisoner. Mailroom staffs are encouraged
live (pro) 7.01.0 I (EfT. 5-1 J-98).
10 open and read incoming legal mail to
In pan. these new regulations provide determine lhat ir does nOl contain
that on July I, 1998, nil prisoners may not "anicles or clippings or other written
possess more than 4 personal books or materials of a non-legal nalure." Allomeys
single copies of any publication. Any- or the couns will not be allowed to inIhing in excess of Ihal limit wilt be clude any non-paper items in Legal Mail.
confiscaled as contraband. and prisonen such as plastic brief binders. brief faswill not be allo"ed to personally possess teners. lamiOlllcd objects, paperclips.
!!ill: book. including religious or legal, if staples. elc. Prisoners" ill not be allowed
a copy of same is in the institutional to fashion custom-made envelopes for
librttry collection. The entire rejection mailing odd sized legal mail packages and
procedure for incoming reading maleri- will be limited to mailing only what will
fit within cantcen sold or law libmry furals has been changed.
nished envelopes.
Non-Cont3cl Visiling Rules
Privileged Mail 10 or from public offiOn June 15, 1998, new FDOC rules cials. govemmenr agencies or the news
became effective ar 33-5.0081, F.A.C.,
(Co-rlUlutd on pag<" f]/

Page 8

NOTABLE CASES
by Sheni Johnson and Brian Morris
First Amendment Retaliation Claim
Heightened Burden Of Proof
Standard Struck Down By
Supreme Court
On May 4. 1998. the U.S. Supreme
Cuurt. in a 5-4 decision. allowed the "iron
curtain" that is again lowering ~n prisoners'
access to the courts to remain open a crack-for now. However. Justice Stevens. writing
for the majority. and Justice Kennedy concurring. provided clear directions to
Congress that some legislative "welding" on
the curtain may be necessary to seal the
remaining cracks. For now. the high court
has struck down a federal appeal court
decision that had held that plaintiflls) must
show "clear and convincing evidence" that
government officials acted with improper
motives to survive a motion to dismiss asserting the defense of qualified immunity.
The results of this case am...cts not only
prisoners. but every citizen seeking redress
for unconstitutional actions taken by government officials for a retaliatory. or discriminato!). purpose.
Leonard Crawford-EJ is a prisoner serving a life sentence in the District of
Columbia prison system. He is considered a
litigious and outspoken prisoner who has
liIed several lawsuits during his confinement and is· known for assisting other prisoners with their litigation. Crawlord-EI has
also been active
in reporting prison
conditions to news media reporters and
participating in media interviews lor stories
about prison conditions.
In 1988 Crawford-E I was transferred
from a District of Columbia prison to a
county jail in Washington State because of
overcrowding. He was then moved several
more times: Irom the jail 10 a Washington
Siale prison. then to a Missouri lacilit)·.
back 10 two prisons in the District of
Columbia system. and ultimately to the federal prison in Marianna. Florida.
In all this moving Crawford-EI had
three boxes of personal property. including legal materials. that were transferred
separately. When the District of Columbia
received the boxes from the Washington
State prison. instead of sending them to
Crawlord-EI at Marianna. a correctional officer gave the boxes to Crawlord-EI's
brother-in-law which resulted in a several
month delay in his receiving the boxes. The
female correctional officer that gave the

F.P.L.P. VOLUME 4, ISSUE 4

boxes to the brother-in-law. however. had the first two claims. but reviewed the First
previously demon.strated animus against Amendment retaliation claim en bane.
Crawford-EI because of his litigious nature Crawford-E! v, Brinon. 93 F.3d 813 (CA DC
and association with the news media.
1996). The en bane appeal court held. pertiFirst Crawford-EI filed a section 1983 nently.
that in order to prevail in an
action alleging that the correctional officer unconstitutional-motive case. the plaintiffmust
had diverted the boxes containing his legal establish that 'motive by clear and convincing
materials to interfere with his access to the evidence. The court relied on a prior U.S.
courts. After a back-and-forth between the Supreme Court case in making this decision,
district court and appeal court. Crawford-EI Harlow VI Fitzgerald. 457 U.S. 800 (1982).
then amended his complaint adding two addiCrawford-EI sought certiorari review of the
tional claims: a due process claim and a appeal court's decision from the U.S. Supreme
claim that the diversion was motivated by Court, which granted same. Crawford-EI v. Britretaliation for his exercise of his First Amend- lml, 117 S.Ct. 245 I (1997). The mlliority of the
ment rights.
Supreme Court held that the Court of Appeals
According to the amended complaint. erred in fashioning a heightened burden of proof
Crawford-EI had had previous problems with for unconstitutional motive cases against public
the particular correctional officer that later ollicials. The court found that Harlow does not
acted to divert his property. In 1986 support the imposition of a heightened burden
Crawford-EI had invited a newspaper reporter of proof standard.
.
to visit him and obtained a visitor application
The Supreme Court held that. "Our holding
for the reporter. which resulted in a front- in Harlow. which related only to the scope ofan
page article on prison overcrowding. The affirmative defense. provides no support for
same female officer. Patricia Britton. had been making any change in the nature of the plainthe one to approve the visitor application for till's burden of proving a constitutionaJ violathe reporter. After the newspaper article ap- tion. Nevertheless. the en bane court's ruling
peared she allegedly accused Crawford-EI of makes just such a change in the plaintiffs cause
tricking her to receive the reporter visit and of action. The court's clear and convincing
threatened to make life "as hard for him as evidence requirement applies to the plaintiffs
possible."
showing of improper intent (a pure issue of
Two years later. in 1988. Crawford-EI had fact), not to the separate qualified immunity
another run-in with Britton when he com- question whether the official's alleged conduct
plained about invasion of privacy and Britton violated clearly established law. which is an
allegedly had told him. "You're a prisoner. . 'essentially legal question....
you don't have any rights." Later in 1988. The Supreme Court held that in cases alleging
another front-page newspaper article quoted unconstitutional motive the plaintill's allegaCrawford-EI as saying that litigious prison- tions of improper intent have nothing to do with
ers had been "handpicked" lor transfer to whether a defendant is entitled to qualified imWashington State so prisoner lawsuils "will be munity. The former is an "issue of fact" while
dismissed on procedural grounds," Britton qualified immunity is a "'egal issue" depending
then had .allegedly referred to Crawford-E1 as on what law has been previously established.
a troublemaker.
Therelore. consideration of plaintiffs improper
The district coun dismissed the amended intent allegations is improper in considering
complaint. granting defendant's motion to dis- whether a delendant is entitled to qualified immiss -asserting qualilied immunity; because munity.
the court access and due process claims were
The catch inserted by the Supreme Coun in
"'egall)' insufficient." The First Amendment both the majority opinion and in Justice
retaliation claim was dismissed because it did Kennedy's concurring opinion. is the result of
not allege "direct evidence of unconstitutional this having been a prisoner's case. The court
motive." This last dismissal was based on expresses sympathy for the heightened standard
prior Coun of Appeals' decisions from that attempted by the appeal coun. but opines that if
jurisdiction that had held "allegations of such a heightened standard is necessary to procircumstantial evidence of such a motivation tect officials from prisoners' actions for dam[are] insufficient to withstand a motion to ages then Congress should "respond (with)
dismiss."
future legislation." Justice Kennedy echoes that
Crawford-EI appealed the dismissal and suggestion in his concurring opinion. See:
the appeal coun affirmed the dismissal of Crawford-EI v. Britton. 118 S.C!. 1584.11

.

Page 9

FLW Fed. S505(1998).
Two Certified Questions Arise From
Claim For Credit Time Served
In January. 1996. Stuart Michael Vanderblomen was sentenced on four second degree felony convictions to four concurrent
four year prison tenns. The record renects
that the sentencing court only allowed Van·
derblomen credit for presentence jail time on
one of the four concurrent sentences. Vandetb\omen filed a Florida Rule of Criminal
Procedure 3.800<a) Motion containing sworn
allegations that his sentences were illegal because the sentencing court had failed to allow
presentence jail time credit on three of his four
concurrent sentences. The sentencing court
summarily. denied Vanderblomen's Rule
3.800(a) motion and an appeal was taken to
the First DCA.
In a well articulated opinion addressing
the "History of JaiVPrison Credit Claims Under Rule 3.800(a)." the "History of JaiJlPrison .
Credit Claims Under (Rule] 3.850." and the
"Postconviction JaiVPrison Credit Claims Af·
ter July 1995." the First DCA certified two
questions ofgreat public importance:
I) "DOES THE DEFINITJON OF AN
'ILLEGAL' SENTENGE SET FORTH IN
KING ,: STATE. 682 SO.2D 1136 (FLA.
/996), DAVIS V. STATE. 661 SO.2D 1193
(FLA. 1995). AND STATE ,~ CALLAWAt',
658 SO.2D 983 (FLA. 1995). PRECLUDE
CLAIMS FOR ADDITIONAL PRESENTENCING JAIL OR PRISON CREDIT FROM BEING RAISED IN 3.800(a) MOTIONS UN·
LESS THE DENIAL OF THE CLAIMED
CREDIT RESULTS IN A SENTENCE BE·
raND THE STATUTORr MAXIMUM FOR
THE PARTICULAR OFFENSE?"

and
2) "DOES THE, DEFINITID!'; OF AN
'ILLEGAL' SENTENCE SET FORTH IN KING
1'. STATE. 681 SO.2D 1136 (FLA. 1996),
DAI'IS 1'. STATE, 661 SO.2D 1/93 (FLA.
1995), AND STATE I: CALUWAI: 658
SO.2D 983 (FLA. 1995). PRECLUDE CLAIMS
FOR ADDITIONAL PRESENTENCEJAIL OR
PRiSm' CREDIT FROM BEING RAISED IN
3.850 MOTIONS, WHEN THE DENIAL OF
THE CLAIMED CREDIT HAS NOT RESULTED IN A SENTENCE BEro"'D THE
STATUTORr MAXIMUM FOR A PARTICULAR OFFENSE. BECAUSE SUCH CLAIMS
COULD OR SHOULD HArE BEEN RAISED
ON DIRECT APPEAL. ..

Finding Vanderblomen's Rule 3.800(a)
motion was sworn to and filed within two
years of the sentences becoming final. the First
DCA "reversed in part. and remanded with
directions" holding that "the trial court erred in

F.P.L.P. VOLUME 4, ISSUE 4

failing to treat Vanderblomen's sworn motion
filed within two years of the finality of his
convictions and sentences as a motion filed
pursuant to Florida Rule of Criminal Procedure 3.850." See: Vanderblomen v. State. _
So.2d _ . 23 FLW 0795 (Fla 1st DCA
3/24/98).
Claim for Credit Time Served
May be Raised In Rule 3.800 Motion
Joseph Sal Mancino filed a 'rule
3.800(a) motion seeking the award of
pre-sentence jail time credit he was legally
entitled. The Circuit Court for Pinellas County
denied relief on the basis that "the motion is
not cognizable under rule 3.800 and must be
raised in a motion filed pursuant to Florida
Rule of Criminal Procedure 3.850." Mancino
~. 693 So.2d 73 (PIa. 2d DCA 1997).
On appeal. however. the Second DCA reversed
and remanded citing Swyck v. State, 693
So.2d 618 (Fla. 2d DCA 1997), for the
proposition that it has "consistently held that
rule 3.800 is a proper vehicle for raising a
credit time served issue where jail credit can be
detennined from the face of the records." M!m:
£i!m. 693 So.2d 73. In reversing the order of
denial. the Second DCA directed "the trial
court to consider the merits of Mancino's motion." Id. Even better. recognizing that its deci·
sion was not consistent with the majority of
appellate court decisions, the Second DCA
certified conflict with the decision entered in
Berry v. State. 684 So.2d 239 (Pia. 1st DCA
1996): Sullivan v. State. 674 So.2d 214 (Fla.
4th DCA 1996): and Chaney v. Stale. 678
So.2d 880 (Fla. 5th DCA 1996).
Significantly. on June II. 1998. the
Florida Supreme Court responded to the certified conflict and. in the process. provided some
long overdue clarification on this troubling
issue by. among other things. stating: "As is
evident from our reCent holding in Hopping {v.
State. 708 So.2d 263 (Fla.1998)], we have
rejected the contention Ihat our holding in
Davis {v. State. 661 So.2d /193 (Fla.1995),l
mandates that on(v those sentences that facially
exceed the statutory ma.ximums may be challenged under rule 3.800(a) as illegal."
The Supreme Court. approved the Second
DCA's decision entered in Mancino and expressly acknowledged that. "(a)s noted by
Judge Altenbemd in Chojnowski {". State. 705
So.2d 915. 918 (Fla. 2d DCA 1997)). since a
delendant is entitled to credit time served as a
mailer of law. 'common laimess' if not due
process. requires that the State concede its
error and correct the sentence 'at any time:"
Ultimately. the Supreme Court held that
"credit .time issues are cognil.Bble in a rule
3.800 motion when it is allirmatively alleged
that the court records demonstrate on their face
an entitlement to reliet:" See: State v. Mancino.

So.2d - ' 23 FLW S301 (Fla. 5111/98).
Legislature's Unreasonable
Restriction on Scope or Standard of Appellate Review Violates Constitutional Separation of Powers
Jonathan Denson took an appeal from his
sentences imposed on January 2. 1997. in four
different criminal case numbers.
On
appeal. Denson's attorney presented three
issues. only one of which had been preserved
.for appellate review. The Second DCA affinned the trial court's ruling on the preserved
issue but. in a well articulated opinion. reversed and remanded for re-seiltencing on the
two unpreserved issues because the DCA
found those un preserved issues presented
"serious, patent sentencing errors."
The two unpreserved issues that the DCA
found· to warrant reversal were: I) That the
trial court imposed unauthorized habitual offender sentences, and 2) that the written sentence differed from the orally pronounced sentence. The appellate court's analysis found
that "there is no legal authority pennitting a
ten·year tenn of imprisonment or a habitual
offender sentence for the third-degree felony
of possession of cocaine." and that "the fiveyear increase in the tenn of imprisonment in
the written sentence clearly violates the rule
that the written sentence must conform to the
oral pronouncemenl."
~-Significantly, the Court addressed the
statutory amendment affecting ·its '~urisdietion
and scope of review" contained in section
924.051(3). Florida Statutes (Supp. 1996).
which was enacted as part of the Criminal
Appeal Refonn Act. Section 924.051(3)
states:
An appeal may nol be taken from ajudgment or order ofa Irial courl unless a prejudi·
cia! error is alleged and is properly preserved or, if nol properly preserved, would
constitute fundamental error. A judgmenl or
sentence may be reversed on appeal only when
an appellale cOllrl delermines after a review of
Ihe complele record that prejudicial error occurred and was properly preserved in Ihe trial
court or. if nOI properly preserved, would
conslilute fundamenlal error.

The Second DCA "read the first sentence
as an elTort to restrict (its) jurisdiction over
the case. An appeal 'may not be taken: i.e.. the
appellate court has no jurisdiction to hear an
appeal. unless a prejudicial error is either preserved or is fundamental." The Court then
found that "(t)he second sentence attempts to
restrict either (Its) scope of review or Eits)
standard of review because ... the legislature is
lillempting to prohibit the court from reversing
a sentence on an issue concerning a prejudicial

Page 10

error that is neither preserved nor fundamental;R The Coun discusses the legislature's use
of the words "fundamental erro~ and notes
that Rthere is little question that
'fundamental error' for purposes of the
Criminal Appeal Reform Act is a narrower
species' of error than some of the errors
previously described as fundamental in case
law. R
Finding that the newly revised appellate
rules penaining to sentencing errors h!lve not
been fully delineated. the Court notes that
Rthere is a real risk that serious sentencing
errors. raising significant due process concems. may not be corrected or may not be
corrected in time 10 provide meaningful relief
to a prisoner tiling pro se motions if they
cannot be corrected with the assistance of
Counsel on direct appeal."
The Court concluded that under separation
of powers. "the legislature is not authorized to
restrict [its] scope or standard of review in an
unreasonable manner that eliminates [its] judicial discretion to order the correction of illegal
sentences and other serious. patent sentencing
errors." Noting thai its "power to address
these issues is not clear and presents an issue
of great public imporlance." the Court certified
the folloWing questions to the Supreme Court
ofFlorida:
I. IF A DISTRICT COURT HAS JURISDICTION TO REI'IEW A CRIMINAL APPEAL PURSUANT TO SECTION 924.051. FLORIDA
STATUTES (SUPP. 1996), DOES IT HA VE DISCRETION TO ORDER THE TRIAL COURT TO
CORRECT AN UNPRESERVED ILLEGAL SENTENCE?

2. IF A DISTRICTCOURT HAS JURISDICTION
TO REVIEW A CRIMINAL APPEAL PURSUANT
TO SECTION 924.051. FLORIDA STATUTES
(SUPP. 1996), MAY IT ORDER THE TRIAL
COURT TO CORRECT A WRITTEN SENTENCE
IMPOSING A LONGER TERM OF IMPRISONMENT THAN THAT CONTAINED IN THE
ORAL PRONOUNCEMENT?
Acting Chief Judge Campbell and Judge
Green both concurred with the Honorable
Judge Altenbemd's well reasoned opinion. Interestingly. there was no dissent.
See: Denson v. State.
So.2d
• 23 FLW
DI216 (Fla. 2d DCA 5113/98).
Use of Improper Predicate Offense For
Habitual Violent Felony Offender
Purposes Does Not Render
Sentence Illegal
On July 14. 1997. Jason Tyrone Speights
was sentenced as an habitual violent felony
offender (HVFO) to a 22 year prison term for
the offense of aggravated battery with great
bodily harm. Speights appealed to the First

F.P,L.P. VOLUME 4, ISSUE 4

DCA arguing that his sentence is illegal
because the State relied on a prior carjacking conviction as the predicate offense for
imposition of the HVFO sentence. "Carjacking
is not a statutorily listed predicate offense
for lin HVFO sentence."
Prior to the Criminal Appeal Reform
Act of 1996. and prior to the decisions entered
in Davis v. State. 661 So.2d 1193 (Fla. 1995).
and State v. Callaway. 658 So.2d 983 (Fla.
1995). the First DCA had held that "an HVFO
sentence is illegal if the necessary predicate
conviction is absent and that no contemporaneous objection is necessary to preserve the
issue for appeal." Walkins v. State. 622 So.2d
1148 (Fla. 1st DCA 1993), overruled in [lan on
otber grounds. White y, State. 666 So.2d 895
(Fla. 1996); ~ i!Im. Gahley v. State. 605
So.2d 1309 (Fla. 1st DCA 1992); WjlJiams v.
State, 591 So.2d 948 (Fla, 1st DCA 1991).
guashed on other grounds. 599 So.2d 998 (Fla,
1992) "('Without the necessary predicate convictions appellant's sentence as an habitual offender is illegal. No objection is required to
raise the issue of an illegal sentence on direct
appeal.')." In Speights' c~. however, the First
DCA held that the alleged sentencing error
"does not satisfy the defin ition of an illegal
sentence set forth in Callaway and Davis," The
First DCA found that "[i]n Washington v. Slate.
653 So,2d 362. 367 (Fla. I994). cert. denied
msm., 116 S.C!. 387 (199S).... the Florida
Supreme Court held that it is 'improper' to
sentence someone under the Habitual Violent
Felony Offender Statute in reliance upon a
predicate offense outside those listed in the
statute. and did not use the word 'iIIegaL,n
The Court found that Speights' based his claim
that his sentence is illegal on the fact that "no
enumerated predicate offense appears in the
record" and that, presumably. if Speights'
"sentence was vacated for lack of a proper
predicate offense. the state could present
evidence on remand of additional prior convictions which m.i1l.hl justify an HVFO sentence." (Emphasis added).
In this case. the Court held "that reliance on
an improper predicate offense does not render
the sentence 'illegal' for purposes of determining whether the error may be raised for the first
time on appeaL" The Court also rejected
Speights' claim that his 22 year prison sentence
was illegal on the ground that it exceeds the
statutory maximum for the second degree
felony offense of aggravated battery. In rejecting this claim. the Court found that "[u]nder
section 775,082(3)(c), [Florida Statutes.] a second degree felony is punishable by a term of
imprisonment not to exceed 15 years. However,
in the absence ofany objection to habitualization, the
trial court did not err in relying on the statutory
maximum sentence for a habitual violent felony offender convicted of a second degree felony. Under
section 775.084(4)(b)2.. the statutory maximum sentence for this offense. after habilUalization, is 30

.

years."
Fortunately, either to ease the courts oWn conscience for not causing this serious sentencing error
to be comxted or as a feeble attempt to shift the
blame 10 another court, the First DCA did certifY the
following question to the Florida Supreme Coun as
a mailer of great public imponance:
When a habitual lIiolent /elony offender senlence is
imposed wilhoul record ellidence 0/ a prior convielion 0/an enumeratedpredicotefelony. bUI lvithoUI
any objection by the defendanl to Ihe imposilion qf
such a sentence, and the resulting senlence IS above
the statutory maximum without habl/llQlizDtion but
below the statutory maximum period 0/ incarceration after habitualizalion. is the sentencing error
one that may be raised on appeal/or the firsllime.
and corrected despite the lock 0/ any motion in the
Irial courl to correci the senlence plU$lllUll 10
FIa.R.Crim.P.3.800(b)?
Notwithstanding the fact that the State relied
on an improper predicate conviction to qualify
Speights as an HVFO. the First DCA concluded that
it must affirm the sentence "(b]ecause the sentence
is not illegal, and the issue was not preserved for
review by a motion filed in the trial court to correct
the sentence. R ~ Speights y. State. So.2d_,
23 FLW 01220 (Fla. 1st DCA 5/13198).
IComment: Notable cases Is inteaded to assist FPLP
subscribers wllh Information pertainIng to what Is
happening In the courts. With the limited space
available for auch Information, FPLP stllrr places a
special emphl1llls toward providing Information that
will benefit the largest Dumber of Individuals. The
decision to Include this particular case In this- issue
of FPLP Wl1ll two-fold. First, like the decisions eatered In Q!.l.Ia!mx and !!aYJ!, the CrimlDlI1 Appal
Reform Ad or 1996 has had a major impact on a
very large number of coavlded felons In tbe State of
Florida. Second, as tbe "oDorable Judge AI·
tenberod pointed out ID his well articulated oplniou
eatered In !!m!Oe y. State,
So.2d _, 23 FLW
01216 (Fia. 2d DCA 5/]3198), "lippe/late judges
take on oath to uphold the law and the coastltutioa
of this state. The citizens of this state properly
elpect these JUdges to protect their rights." Wllh the
decision eatered In ~ bowever. the citizeas
should be coDcerned Ir they con truly expect the
judges, at least from the First DCA, to proted thdr
rigbts. The ~ Court made DO reference to the
fact that "Iplrisoners are eatllied to legal represeatallon on direct appeal, but DOt In most postcoavielion proceedIngs." Denson. 23 FLW at 1217. Coutd
It be that the First DCA is not at all concerned wltb
the rad that "there Is a renl risk tbot serious sen·
leneing errors. raising slgalncont due process coo·
cerns, may aot be corrected or may oot be corrected
In time to provide meaD/agful reller to a prisoner
nliag pro se motions if they CODnot be cornded
with tbe asslstllnce orcounsel on direct appeal"! Id,
Even more egregious Is the fact that the §m!&!!!!
Court did not elpressly state that It was aronnlog
the serious sentencing error without prejudice to
Speights seeking relief through II rule 3.850 motion.
Decisions such us the oae eatend In ~ COD
reasoaabty "jeopardize tbe public's trust and coondeoce la the Inslltutlon orcourts 01 law." ~ If
the Florida Supreme Court refuses to gruat review
or granls review but rails to remand for resenletlc·
Ing pursuant to the Laws of Florida, FPLP
respectfully suggesls Spelgbts, aDd similarly situated convlded felons, should pay particular atteatloa to Judge Allen-bernd's concurring oplolon entered In QolngMkI v, SpUr. 705 So.2d 915, 917
(Fla. 2d DCA 1997)-bml •

Page 11

·-··f

and anger management classes. Officer
Greg Wilson is still awaiting trial on the
most serious charge-manslaughter.
During May, Santiago also gave a
pre-trial deposition in the lawsuit against
his fellow officers. He supported
DePaz's testimony and went further,
An agency left without fearing any effec- testifying that three other officers who
tive administrative or judicial challenges were directly involved were not even
begins to feel an immunity to adopt any charged in Sagers' death or beating. Santiregulation it wishes. Only by grievances, ago claims that he only held Sagers down
rule and statute judicial challenges is a on the floor with his foot as the three
"check and balance" created to limit arbi- other uncharged guards punched and
trary discretion. Or you can sit back and kicked Sagers in the stomach, jammed a
ruminate on important issues like what's thumb into his neck, applied karate chops
on taday's soap opera, who will go to to his neck. yanked his head back by the
the Superbowl, who wants to gamble at hair, and· later bragged about the beating.
Spades, what's the latest rumor, or how
Santiago also testified that he had recan I get in my neighbor's business. ported excessive use of force against
After all, no one will miss your few other prisoners in the jail to higher-ups
before the Sager incident. but that nothing
remaining fTeedoms-except you. 1
was ever done about it.
The county tried to have a gag order
$10 MILLION LAWSUIT
placed on the pre-trial depositions of
FILED FOLLOWING
Nurse DePaz. Santiago, and several other
PRISONER'S DEATH
witnesses, but the Orlando Sentinel challenged that and federal Judge David
An Osceola County, Florida, jail cor- Baker ruled that the public had a right to
rections officer, Greg Wilson, wrapped a know what happened to Sagers.
towel around the mouth and nose of prisSuch beatings have reportedly beoner Daniel Sagers and then pulled and come common not only in our jails in
twisted back on his head, laughing he Florida, but also, perhaps more frequently
asked "why" when he was told to ease up. where they can be covered up more easJail Nurse Shelley DePaz gave that testi- ily, in our prisons. lt was only fortune that
mony in a pre-trial deposition during May' provided willing witnesses in Sagers'
in a $20 million lawsuit filed by Sagers' case.
family against Osceola County officials.
Prison activists claim that only apThe assault on Sagers by several cor- proximately one percent of such beatings
rectional officers occurred on March 5, by jail and prison guards ever reach the
1997. After Sagers allegedly pushed a attention of the public, even when as in
female correctional officer, Gail Ed- Sagers' situation, death is the result.
wards, into a wall, officers Wilson, Ed- Many feel that recent actions ofthe courts
wards, and reportedly at least four other and politicians to adopts rules and laws
officers, jumped Sagers and brutally beat that effectively deny prisoners access to
and choked him, resulting in Sagers' death the courts to challenge official abuse will
seven days later.
once again encourage jail and prison
Following Sagers' death, three offi- guards to feel that they can do anything
cers. Wilson, Edwards, and Milton they want to a prisoner, and little or nothSantiago, were indicted by a grand jury ing will be done about it.
on criminal charges. Typical in jail and [Source: Orlando Sentinel, 5119/98,
prison murders by corrections officers,
512119811
Santiago and Edwards were only charged
BRIEFS
with misdemeanor battery for what Witnesses have described as a "long and
bloody beating.· Both Edwards and San- 1 The last issue of FPLP reported on the
tiago have already been allowe.d to plead negligent death of Susan Bennett in the
guilty to the misdemeanor charges and Orange County, Florida, jail ("NURSES
were sentenced to community service ARGUE AS JAIL INMATE DIES").
(Continuedlrom page 8)

media will be prohibited if any part of it
contains photographs, articles or clippings (any written or printed materials),
greeting cards. non-paper items of any
description. address labels. etc.

F.P.L.P. VOLUME 4, ISSUE 4

Bennett's family had filed a $10 million
lawsuit against the county and several
corrections workers at the jail. On April
27, 1998, Orange County agreed to settled the case out of court for $3 million.
. Additionally, as many as 80 health-care
workers at the jail may lose their jobs as
investigations continue into negligent
medi~al care at the jail.

1 In the May issue of F.L./.P.. the
newsletter of Families with Loved ones In
Prison. it was reported that the Florida
House of Representatives' Corrections
Committee will be reviewing FDOC visiting policies and procedures during that
committee's interim legislative session
this summer. The April 9th Capitol
Rotunda Rally is given credit for this
achievement. Much more, however, needs
to be done.
To find out more about F.L.I.P contact:

F.L./.P.
710 Flanders Ave.
Daytona Bch., FL 32 1/4
9041254-8453
EMail: fllp@afn.org

1 According to the Febroaryissue orTJre -Bridge, the newsletter of the New
Jersey Prisoners Self-Help Clinic, prisoners in that state boycotted the
implementation of a collect telephone
scheme similar to the one recently
implemented in Florida. Since November, 1997, when the new phone system
became operative, approximately 90% of
New Jersey prisoners have refused to
use the monitored phones or to
complete the limited phone lists.
When prison officials tried to issue prisoners a PIN number the prisoners returned the numbers to prison officials,
and vowed to write letters rather than
subject their families and friends to the
exorbitantly high phone charges. The
FPLP staff wishes New Jersey prisoners
the best in their ongoing, unified, struggle.

AMATEL V. RENO UPDATE
The following information appeared
in the FalllWinter 1998 issue of The No(Continued on page 14)

Page 12

Dear Perspecfives: TIwtks so much for.allthe suppan llIId for a ncwsIener Ibat keeps us infonmd. I !me my sister ordering a subscription Cor me llIId herself so we can keep up with the
changcs laking IIlace and I wanl her 10 have the ollllCnunily 10 join forces wherever she may be able to heill. In a recent issue of FPLP there was a note about lite IIOssibility ofPcIl Grants
coming back. I was taking courses lowards a degree when thcy SlollflCd Pell Grants.' would like to Icnow mere aooUllhis issue. B.W•• JCI
IDear B: We have DO more Informatloa than what aplJared In tbe Issue you refeftDCC. We bclleYe thaI CU.R.E., P.O. Box 1310, NadoDlI Capilli StaliGa, WulIIaglllD DC
ZoolJ.1IZ6, may be working on this dtuatlon and osay be able 10 proYlde more lafo. The U.s. Coagress C01Ilrols ndl eduClItlOII granl prograass.1
Our fPLP: ScvCTlll monlhs ago Jel opened a close managcmenl unit. Broward CJ Ihen transCerred Iheir eM prisonm here. Now JCI has received numerous yculltful offendcn and
somehow changed their classification from V.O 10 adull,llIId pla«d than on CM. These young [lirIs arc locked in a cell 24n, Clccpt Cor a 2 hour "curcue· period on;e per wcclt. They
are not rcCCIv10gllte required child nunition I1IQJs per SIlIIe law. and there IUe no prognuns being provided 10 Ihem. Mental hcallh only has ·wlllkthrous/ls" rwi= a month llIId taIb to than
bnetly Ihrough a crack in the door. Some adah women coming here arc beIng CM reviewed due 10 pasl records. some dMing back 10 Ihc gO's Wllh no disaplinary problems IlI1CC then.
Disciplinary due process IS almOSl non-cllSlent here in the DR hcanngs. Numerous officers here arc rudc, unprofessional. provocallVe. llIId liars II is a same 10 litem. 5.a, JCI

Dear FPLP: The JanlFcb issue of FPLP hit the mark wilh ·Big Bob's Opinion Service." My offense occurred Ocl 95', the g57- law did not go inlO effec:t Wllil Jan 96', but lite FDOC has
Slated that I. along with lhoosands oC olhcrs whose offense occurred before Jan 96', don' qualify for the award of our proper gainlime. Second let me inform llII Muslims w!lo follow the
Quran and the Joumal of Prophet Mohammad (SAS) thaI this plac:c has 0 nice CM cell wailing for your Ilrrival. Thac, your mail will be highly censored, you Will be harassed bcellusc of
your faith, llIId Ihe grie\'llflce lIfoccdure is nonQistCIII. So, reroute if you can. This is one lime I don'l wanl Cor my hrother what I
have. 5.M.S., SRCI
FPLP: Enclosed is a change or address. I am 10 be rcIeased SOOII bld WIIlU 10 c:ontinuc receiving FPLP. On 1211197 privately operated Gadsden CI b.wt:d smoking. Now it is a smoke-frcIC
comllOuncI-clIcept Cor the healthy black·markClthat has developed. One pack oCcigarcnes now sclb for SI00. )'CS, thaI's SI00 Cor 20 cigarcnes. Canons scll for SI,000, and no olllciab seem
10 care. Ofcourse. a few prisoncrs have been caughl smoking, bUlthere is no FDOC rule IlrohibitinlJ iI, so the rumor is Ihe FDOC will not process a DR Cor such "offense." Isn' banning
cigarettes at just litis ane prison discriminatory? II really angers me speculating on how the black-markct cigarines are gelling in Ihc gale, Ihcy're making a killing. W.D., Cad CI
(Dear W: After the Tom Waugh selllemeat aewly arriving prisonen at your Inslltutlon probably nced 10 Immedlalcly me medical grlevaoces sccklag alcollae _tIon aUla.
Wbcrc the FDOC bas bcca for«d to admit thaI alcollae addietiOll Is a serious medical COIIdllioa rcqulriall mcdlenl lralmenl with c:asatllla aides Ibis wauld eq1llllly apply llIaay
privale pris4ln company SCCkilli 10 baa smokine. Those who bon already bcca forced to qull wauld Iilld)' have less of a claim thaa those Just now belDg for«d to qull enid turb)'o
Do tbe "hllmcwllrk" first· rescardl, dllCUment, work logether aod do II rigbLI
FPLP Friatds: Even lhough my subsalJllion is Slill good Cor a while I don' WlIIllto wllil unlil lhe last minute. so here il a renewal. I also WIIlU to SIly Ibat I appreciate llII the womlcrfW work
lite sIaffcIocs Cor me and all lite others on tltis side of lite fcnc:e. Vou have told il right about Eel. The officcnjurnp on inmates for little or norcason llIId lhcn falsify rqJDrlS to cover it up.
They arc Icning olhcr inmates into cells 10 jWllP on others. When Tallahassee sends investigators C\ICry1hing is dilTcrcnt and in good order. Well, I'm just a nobody trying 10 let a linle ligItt
on lite truth. PClIce.

R.s..£Cl
AA meeting. alilhe inmales were informed thaI there had been a memo ccnc:cminlllhe Cxtra 6 days lhosc UIlI!er lite WaIdnzp
program supervisor, that as lhcy (DOC) were able 10 go over lhe individual records, they would be deducting any gain time
given for allendingllte AA "rognuns from the end oC July 1997 unlillhe presenl. II is only 6 days a manlh, however, over the yCl1rS il adds up 10 72 days a year or approlimalely 2 113
months yearly offthe end ora sentence. Over a few years thaI makes a bill difference. I decided to check into this. Aftera Ccw phane calls I found the person to. speak with was Fred Roesel,
head or lite DOC classiflCalion department. Hc C3I.plained Ihlll because of court decisions in other SIllIes and comlllaints from some inmates in the Fla. S)'Slcm this IIOlicy had been adopted.
He said this IIOIicy affec:ted 11I1 programs Ibat had a "quasi-rcligious c:omponcnI." Spcifically, AA llIId NA prognuns. II seems thllllhcrc have been a lot of inmates who Cell is was
mandatory to anend lhcsc prognuns to get the extra Waldrup gain time llIId Ibat lite religious nature ofllte prognuns was offensive. So this is lite DOCs answer 10 lhosc illlllllles. Mr. Roesel
said this WlIS a IIOlicy, not II rule or stlilUlC,lIlld that he was unsure wilen it was adopted or became effcdiw.lhal he would have someone else ccnlaCt me. Ellen Rcbcl1s, TalJahasscc
office, phoned mc back wilh more informalion. She said lite IIOlicy did lake cffec:t7/15197, however, no back gain lime would be lakcn, the inmalesjust would nol be able to earn nny in lite
future. I asked her how this "1IOIicy" was disseminated as no om else in the Tallahassee office seemed 10 know llR)'1hing about it. She said all institutional progr.un supcMsors had reccivcll
a copy or a memo July 1997. It seems Ibat W1til rccCmly this was a well kept seem. This is confusinll. Those illlllllles under Waldrup Gain Time arc suppose to be allowed to rcccWe lite
elt'" .program. gain time. How arc lhcy 10 cam it ifil is nol being awarded for panicipaling in lite prognuns. TIwtk you so much for all you do and for being lhcrc when we need you. I am
... D.J. Aleslra, CA
DcIJl' Fri.ndJ al FPLP: RtcCIlll)' "'hile anending a Hamilton CI
system had been receiving. The inmates were laid. by lhe new

Dar 0: The FDOC is looldnll at eYery lingle thalli caa 10 reduce gala time awards 10 pris4lDen, not ooly Waldrup eligible pris4lnen. The FDOC bas lhousaads of caspl)' beds
aod tbc legislature bas mused' 10 provide more mllDC)' for Cwo yean lIOW because of those caspl)' bcdJ. This Iw seriously disrupled the FDOC'I plans III build aDd keep buiJdlaa
prisons alllllPaycr ftpemc, Notice of IIIIs policy w" posled al aumerous Institutions II few mllDlbs IIgo. No elplanatloa wu provided lor lbe "1I011cy," IIC1WcYCr, your racardl
aplJarllto answer that quesdoa. It would leem thaI where the law prorided thaI prlsanen covered by Ille Waldrup dcclslan wCluld be able 10 cam ellra pia time for attcodlng
programs, thlltthere Dlusl be programs In place to orrClrd Ibal opportunll)'. It Is luapected Ille FDOC will not provide alternallves, howeYer, unless fClr«d 10 da so by the courts,
as tbcy have bad 10 be for«d ill eYery goln time sltuatlaa over the past few yean. Thaak you for yaur iaformaIiCla.(
Pmpcctives: On June Ist James Quigley rmally went to a fedcmllrilll in Tampa trying 10 get two JIhotogruphs back Ihlll prison officials had taken from him over five years ago. Mer a one
and a half day nial, a dccisian was madc in his Cavor. Thil decision may help lhose "riscncrs who have had family IlholollJllphs laken by the DOC Wldcr the new property rules. As FPLP
lIOinled out in a rcccni issue, photographs IUe not being addressed in the cllUS action on lhe new propcny rules. The new property rules limil fwnily phOlographs to only fifty. Those who
have not already had their Ilhotos taken will, sooner or Ialer. Prisonus will aliter be forced to send lIII)' photos in C3I.CCSS of fifty oul or dispose of than. Many prisoners !me no place
lIII)'II>llI'C 10 send photos 10. The First Amendment is impliClllCd in this. Prisoners can rcccWe 0 thousand pidure postcards llIId keep than, but lhcy CllIIIOI possess over fifty phauls. This
mcds 10 be challenged. LC.. HAR CI

Dear FPLP: II begins July Ist. The DOC inlends to tightly replate C\ICry1hing thaI Florida llrisoncrs see, read, or hear. On July Istlhe book ban IlOCS into effect, lIlld no books arc excluded.
Sec:uJar books, religious boob, legal books, newspapcn. magazillCS, lIycrs. will all be limiled to no more lhan four per p~. I r the library alrcady has a copy or a panicular type hoole,
100 bad, prisoners will not be able to pcrsimaIly poucss it. Mass c:ensorship is goinlllO occur on incoming reading malerials. Where lhcy already contToI everything dill is scca on TV
inside lite prisons, and only garbage (violenl programs. Ialk Ihows. soap operas, cartoons) is allowed, where the lelephones arc now rcccrdcd and monitored, and where visiting is going 10
be reduced under lhe new visiling rules. with Ihc book baMing the control will a1mosl be com"lele. Whal is secn, heard. and Ihought will be rcgul:lled. The weak, belllen, psychOlropic
controlled or menially ill will be programmed far more dcSlruction, one by one, divided they will conquer. Shades oClhe Gulag, Ihcy have lcamed well, while prisoners learn less. 5.T., Polk
Cl

juvenile crime; perhaps unreasonably so. and demagoguery being used by politi(COIIIilflledjrom poge /2)
lional Prison Project Journal (ACLU)
The 1997 study conducted by the Na- cians and the mass media to promote such
concerning Amatel V. Reno. 975 F.Supp. tional Center for Juvenile Justice shows transfers, the fact remains that only one
365 (D.D.C. 1997). The ACLU's Na- that between 1987 and 1996, the num- half of I percent ofall juveniles are ever
tional Prison Project furnished attorney ber of juvenile arrests increased 35 per- arrested for violent crimes. Statistically,
representation in this ongoing case:
cent. In 1996 juvenile arrests totaled over the majority of those juveniles who make
135.000. Yet, the conclusion reached by up this small group of violent offenders
Amatel V. Reno (District of Columbia) the study shows that "today's violent youth are predominately males, from lowThis case challenges the "Ensign commits the same number of violent acts income urban minority families, and have
Amendment," passed by Congress in as hislher predecessor of 15 years ago." been exposed to alcohol, drug and physi1996, which prohibits the Federal Bu- What has changed is the number of guns cal abuse in the home. This, the public is
reau of Prisons from allowing prisoners available to the youth of today compared assured, is immaterial, or something that
to receive publications featuring nu- to 15 years ago, the increasing breakdown cannot be solved so it can be ignored.
dity. On August 12, 1997, the district in family units. values, and morals. FocusAnother recent study by authors Jason
court beld the statute unconstitutional ing the public's attention on juvenile crime Ziedenburg and Vincent Schiraldi for the
and granted a permanent injunction also means diverting it's attention from Justice Policy institute found that juveagainst its enforcement by the Bureau child povertY and our failing education niles that are incarcerated with adult ofof Prisons. The defendants have ap- systems-problems some believe are the fenders are 8 times more likely to commit
pealed to the District of Columbia Cir- true crimes being committed.
suicide, 5 times more likely to report becuit Court of Appeals. Oral argument is
Along with these high profile violent' ing raped or sexually attacked in the adult
set for May. In the meantime, Congress juvenile incidents has concurrently arisen facility, 2 times as likely to be benten or
has reenacted the challenged statute.
an attitude that juveniles should be pun- abused by correctional staff, and SO perished as adults, that this is the only viable cent more likely to be attacked with a
This case is not controlling in Florida. solution to our societal problems. To make weapon than an adult prisoner. Yet, the
This case does appear to be the leading it more palatable. politicians and the public sentiment is being carefully
case at this time that is challenging mass medias demonize juvenile offenders groomed to accept that juvenile/adult
prison bans on "sexually explicit" publi- as "juvenile predators," not worthy of incarceration, and adult punishments for
cations. According to the above notice, rehabilitation or socialization. instead children, are the answer. A bill is pending
this case is now pending an appeal our demagogues-the get tough promo- before Congress to allow even more juvedecision in the federal District Court of tionists-spoon-feed the public's con- nile/adult incarceration.
Appeals. FPLP wi!! carry more informa- sciousness With the harsher punishment
One thing for sure, putting off what
tion on this important case as it becomes solution. the "treat them as adults," and should be addresSed today for "feel good"
available.
"adult-crime adult-time" slogans de- solutions will return to haunt our society
[Subscriptions for prisoners to the signed to perpetuate the economically as a whole in the future. If "children are
ACLU's quarterly National Prison Project motivated criminal justice/prison indus- the future;" just what are we creating
Journal are only $2.00. Subscriptions for trial complex in America.
for the coming millennium? •
all others are $30.00. To subscribe send
Florida is one of the leading states that
payment to: National Prison Project Jour- has bought into the movement to treat
U.S. SUPREME COURT
nal, ACLU, 1875 Connecticut Ave. NW children as adults were crime is involved.
HOLDS ADA APPLIES
According to figures from the state De#410. Washington DC 20009.].
TO PRISONS
partment of Juvenile Justice, Florida
has the highest rate of transfers of
JUVENILE INJUSTICE
With almost unprecedented speed the
juveniles
to adult court in the country. The
by Holly DeSue
U.S. Supreme Court ruled, unanimously,
number has hovered between 5,000 and
June IS, 1998, that the Americans with
From 1994 to 1995 there was a 3 6,000 such transfers per year for the last Disability Act (ADA) applies to prisonpercent decline in juvenile arrests for vio- few years. A 1996 study of that practice in ers. Usually conservative Justice Anthony
lent crime, from 1995 to 1996 there was a Florida that was recently released in the Scalia wrote the opinion, which all the
6 percent decline according to data from national publication CRIME AND DELIN- other justices agreed with, finding that
the National Center for Juvenile Justice. QUENCY found that Florida's efforts in Congress did not exclude any citizen,
Largely due to high profile cases like the this respect are actually counterproduc- including prisoners, from the protections
recent shooting deaths of four students tive.
of the Act. The ADA protects the exchiThat study found that youths who are
and a teacher in Jonesboro, Arkansas,
sion of people who have a disability from
charged to II and 13 year old boys, or the transferred from juvenile to adult court government funded programs and proschool shooting deaths on May 21 in were more likely to be re-arrested upon
Web Page Addras:
Springfield, Oregon. attributed a IS year release than a parallel group of nonhttp://membcn.ool.c:omlrplplrplp.html
old. who is also accused of killing his transferred youthful offenders. The auE-mail Addras:rplp@aol.com
parents, the nation's fears are focused on thors pointed out that despite the rhetoric
Telephone: (407) 306-6211

F.P.L.P. VOLUME 4, ISSUE 4

Page 14

THOMAS E. SMOLKA AND ASSOCIATES
217 SOUTH ADAMS STREET
TALLAHASSEE. FLORIDA 31301-1720

NLEGALNEWS
t detailed joum!ll describ-

Telephoae(850)2U-5I69

Tbomu Eo Smolka, Esquire
Nol Admitted In Florida
VIrginia Sllle 8mr ID No.I52M

(850) 221-6400
,
TUu: (850) JU.1033
EMAIL: tamcIbIlilworld!ld.att.act

Assisting Inmates On
Their Individual Needs

Dear FPLP Subscriber:
As many of you know, I was falsely accused of a heinous crime and
suffered through many years on the receiving end of tbe Florida Judicial system
before I was released after winning my direct appeaL See Smolka v. Sttlle, 661
So.1d 1255 (Fla SIb DCA 1995), rev. den/ed, State v. Smolka, 668 So.2d 603 (FIa.
1996).

Undoubtedly, many of you may be in need of effective assistance. In
tbis regard, I would urge you to contact me, as I provide representation on a fee
paid basis.
Best ~Ishes,

Thomas E. Smolka

Criminal Trial Practice
Executive Clemency

Felonies

D.U.I.

7UMt4';~
Attorney & Counselor At Law

. .

:

Located In .'
Silver Oaks Plaza

~ -

3095 S. Military Trail, Suite 20
Lake Worth. FL 33463
(561) 439-4884
Beeper (561 ) 885-4211

Anyone interested in getting in on a class action
suit for the banning of sexually explicit· material
Florida prisons,

.m

..
\ ..
~

,

,

..

'

/'

'1 :

'k

Contact:
Paper Wing Company
PO Box 4855
Baltimore, MD 21211

F.P.L.P. VOLUME 4, ISSUE 4

ADVERTISING N011CE

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~

R
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8
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;

0...: 10 a COllUIll for our RIden, lbe "PU'1laff 1Ua nay
elTon 10 _
dial "PIP adwnisen ate ftplIIIblc aod qualillcd
fllr Ihe semcos bcinS ofl'eced. We CUllICt pascmaIly _
nay
adveniser, howcva, lbercfoce IUl!as ate IlMsoI 10 . . . .
penonally COIIIact admtiscn for Iilnher infOllllllicn 011 dleir
quaJirlCalicns lIIld apericnce before makiJI8 I dodsion 10 hire ao
olIOme)' or odtcr professional
pmilfa'. Readcn sIIaoIld
lie,," send lesal cIocummll 10 admlisen befoce CGlIlIclins lhcm
and RCCiWlS diRCliolls to IClId IlIdI malCriaIs.
Fer Ihosc Wislting 10 ad..mile on "'P/J', pl_ write for rite
infonnallClll 51 Ihc liSlCd address, AlIn:
AdvenisinJl, cr COI1IICt Ihc pulllisIlu II:

same

PH: 4071306-6211
Email, "PJ.Prbol.etsm
WebpallC' manberuol.comI"'P/J'tH'IJ'
or
memben.lripocl.comI-+PU'

SUBMISSION OF MATERIAL TO FPU'
Becallse llf lbe Iarse ooIume elf IIIaiJ beitqJ RCCiwd by "PIJ'.
rUWlCial COftSidmlillllS, and Ihc illllrilil)' 10 prIlYida iItdMduaI
lesal wistance, rcadm slIouId IIOl IClId copia elf IqpJ
cIocwnallS elf pendios or poumiaI cases 10 "'PIJ' wilIlcIa first
bovins conlacted dle slall' lIIld rcceiviOS ditecliclns 10 scnd
some. Neither FPLP, nr i1s staff. ate mprmsillle fer &lIY IlIISOlidted
malCriaI SCIIl.
Rcadm an: req....lecl III COIIliIwl: III ICIld _
infcllllalioa indudilla IleWSJlIIlU cIlppiDp (please iDdude _
elf paper and dale), manonadums, p/IolOCOpia of fIaal
decisions in IIRplIbllshed cua. aod pcIalliaI anicles felf plIIl&alion. Plasc scad CIIl/y copia elf SIICb -.naI1ba do IlIIl bPe 10 be
reIUmed. H'/J' ,depmdt on YOU. ill radds and SlIppOItm 10
keep infonned. so lhal evaycae CIll be ielfonned, Thaok )'011
for your CCllperaIicn and panicipalioII in hdpios 10 set !he lICWS
llUt. YllUr cfl'ons an: IIfUlIy Ipprecilled.

Page 15

vldes Ihat accommodaliops be provided by
state and fedeml depanments 10 assist dis·
abled ~rsons.
Thirty-four state Anomey General's
(AGs). including AG Bob BUllerwonh of
Florida. crilicized the Supreme Coun's
decision. claiming it will cost millions of
dollars 10 provide assistance 10 disabled
prisoners and Ihal disabled prisoners witl
be filing frivolous lawsuits for trivial things
like whedchair ramps. lower water fountains. rails around toilets. elc. Similar 10
what occurred wilh Ihe Religious Freedom
Restoralion Act of 1993 (RFRA). AG's
from around Ihe country have vociferously
opposed the ADA because they claim it
should not apply 10 prisoners, Using prisoners as the scapegoat. these AGs realty
sought 10 limil all disabled persons' rights,
The high coun rejected the AGs argument. finding thai il was indispulable Ihat
Congress specifically did nOI intend thai
prisoners be excluded from the ADA's prolections againsl disability discrimination.
The various AGs apparently "ere furious
Ihal the Supreme Coun would uphold the
disableds' right to be free of discriminalion,
They poinled out thaI the coun did nOl
address lhe issue of whelher the ADA
infringed on stales' righls. which was used
10 strike down the RFRA last year. The case
decided June 15. 1998. did nOI COlllain Ihal
question for Ihe coun 10 consider (thai case
....'3$ covered in Ihe last issue of FPLP. Vol
4,lss. 3. Pennsvlvania DOC v, Yeskev, No:
97-634 (1998 WL 21894».
There is II Califomia case, however.

steking Supreme Coun review that does
rai~ the ~stale infringement~ issue Ihal the
coun may hear hiler Ihis year. For now
Ihough. disabled prisoners cannot be discriminated against any more than any other
cilizen clln be.•

li:z.ation of the Department
.... hich realized overSI5 m'i
lelephone commissions last
nOlhing but allowing the
panics 10 inslall phones
use .•

TELEPHONE OVERCHARGE
REFUNDS
On April 30, 1998. Ihe Florida Public
Service Commission (PSC) issued a final
decision in Inst year's PSC proceedings
requiring prison cotlecllelephone service
provider MCI 10 refund over SI million in
overcharges 10 prisoners' famities lind
friends, Thc PSC's final order requires
MCI 10 distribute credilS across-the-board
on the remaining SI23.739.62 10 all
families and fTiends of Floridn prisoners
who curTtntly are hooked up 10 MCI. This
was felt 10 be Ihe only fa' IWa
f
. . .
, ,
Ir
y 0
dlslnbullng Ihe rernalnmg overchllrges.
FPLP. FLIP lind other groups associaled wilh FPAN were inslrumental in overseeing Ihe PSC proceedings in Ihis silualion
,
,.
and In aSSisting MCI and the PSC 10 ensure
Ihat as many people as possible who were
iniliolly overcharged by MCI did receive
a direci refund lasl year. We all need 10
continue vigilance on lhe prisOn colleci
lelephone scheme and continue pressure on
Ihe PSC 10 reduce and keep these nlles
comparnble wilh society as n .....hole. Pris·
oners' families and friends..... ho must pay
the exorbilnnl Ielephone rates, must demllnd an end to Ihe ou in and mono

SUnSCRlI'TION EXPIRATJON??
PInlot' rbl'd. ,our malllllil Iabd fllr tht datt thaI
)'our subKriplion III F1'!.P will upirr. On Iht lOp lillt
\o\itl Iw nnrrlrd I dall' surh u "'No\ 98· ... nit
d.lt Indlral" Ibt lUI mOlllh of )'our rurnnt
subKriplioll 10 FPI.P. Wbra )OU rtrein Ibt FPI.P
issllr for Illal monlh. plfUt nnrw )'OUf subsrripllon
immrdilltl)"o lhll )'011 do nOl mbs I.S ll'lul' of FrI.P.
YOllr supporl lhlllugh Jubsrrlpllon donalions 1II.k"
publiolion possiblt .nd is IlrulI)' Ipprrtialrd. 1'lu5l'
f.h Iht tlmr 10 rompll'lr Iht rndosl'd subnrlpllon
form 10 sllbltribr 10 or rtnr'" )'our subKrlpllon 10
FPLP. If Iht JubKripllon form Is missing. )'011 m.)'
"rilr dirtrll)'. radost lbt rtqurslrd donation. 10
sllbsrrlbt.
Movilll:'! Tnndrrrrd! Plnn rampltll' lilt' tnrlostd
Addrrss Oangr Nolin so lh.1 Iht lIlamllll,isl tin br
IIpdllrd,
Injustiu Qn)"_'h~ is a Ihnat 10 justice
n~,,'wht'n. • Martin LUlhu King. Jr.

For several years the w
301 Ihe Georgetown Uni\'e
have devoted lime. w
in providing hundreds 0
copies of Ihe highly
1011'11

Loll' JOII",p{ An

Criminol Procedure 10 in
ilround the cOUlmy,' Thi
possible, The following
provided to prisoners r
)'ear's Annual Review:
E«ttliH Immrd;alrl). Ihr
Jourul Annual Ilr>ir" ofer.
lIhf CCP) "ill 110 101ll:rr bt' m
mtnltr)' buis.. Tbr Cr0l'lrlo"
Ctnlrf rtltrrlS lhis rhanl:t in'
rrqu"lJt1rwluurabilil) 10f
ltry ruplts. To pUfrhut Iht 19
rtdurt Proltrl. stad. rhrtk
510,00 ..'1111 )'our ntlnr .nd.jlt
Journal AdmilliSlrlJ/;on (.
Georgela...." U/ll\'('rs,~'
600NeM J'n,,}',h
Wnshlllgllm DC }
The

Cenla

IS

sc:ndlnl

• I

0111

pnson law hbnrlCS llut: eornph

aVlllllhk to lhc: lilones ror all
ClI«k wuh )"OUI lIbr:ullU1 If the)
or... 1998 lnut:, or or1Ict )olll'sclf 0

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"

FLORIDA
PRISON
LEGAL
PERSPECfIVES
P.O. BOX 660-387
CHULUOTA, FL32766

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