FLORIDA PRISON LEGAL

ers ectives
VOLUME 11

ISSUE 4

ISSN# 1091·8094

JUUAUG 2005

IDA S1mIP>Il\eIIIIIle Co_

permitted, and failed·to provide them a chaplain trained in
their faith like are available to mainstream religious
IDlPJlhl~Co~InlIl1lI¢y
adherents in Ohio prisons. .
The prisoners initially filed suit asserting their
ofl'~u~iJnn
claims wider the First and Fourteenth Amendments to the
Act
U.S. Constitution. ·After filing suit, Congress enacted a
new law, the Religious Land Use and Institutionalized
n a unanimous decision, the U.S. Supreme Court has
Persons Act of 2000 (RLUlPA). and the prisoners
upheld the constitutionality of a law enacted by
amended their complaints to include claims under section
Congress in 2000 that was designed, in· part. to protect . 3 ofthat Act.
.
religious freedoms of institutionalized persons, including
. Section 3 of RLUIPA provides in part: "No
prisoners. In holding that the law does pass constitutional
government shall impose a substantial burden on the
muster, the high Court overturned a decision of the federal
religious exercise of a person residing in or confined to an
Sixth Circuit Court of Appeals that had held that the
institution," unless the burden furthers "a compelling
section of the law that applied to prisoners was
governmental interest," and does so by "the least
unconstitutional because it gave greater protection to
restrictive means." The Act defines "religious exercise"
religious rights than is afforded to other constitutionally
to include "any exercise of religion, whether or not
protected rights. The high Court disagreed.
compelled by, or central to, a system of religious belief."
.
The case began when several Ohio state prisoners,
And section 3 of the Act applies when "the substantial
adherents of "nonmainstream" religions, Satanist, Wicca,
burden [on religious exercise] i~ imposed in a program or
Asatru religions, and the Church of Jesus Chri~t Christian, . .activity that receives Federal financial assistance."· The
filed federal civjl rights lawsuits clai~ing that Ohi~ prison
Act also specifically provides that a "person may assert a
officials were retaliating and discriminating against them
violation of [RLUIPA] as a claim or defence in a judicial
for exercising their non-traditional faiths. The prisoners
proceeding and obtain reliefagainst a govemm.ent,"
claimed that prison officials denied them access to
When the prisoners amended their CQmplaints to
religious literature, denied them the same opportunities for . include a claim that Ohio prisonofficials' actions failed to
group worship that were afforded adherents of mainstream
accommodate their religious exercise in violation of
religions, prohibited them from adhering to dress and
RLUIP~ the prison officials motioned tO'dismiss that
appearance' requirements of their religions, withheld
claim, arguing that section 3 violates the Establishment
access to religious ceremonial items that are essentially
Clause of the First Amendment, more commonly known
the same as those that mainstream religious adherents are
as the clause mandating separation of church and state.

I

FAMILIES .'\DVOCA1ES PRISONERS
•

ON

I
\

THE
INSIDE

Is The Prison Boom Ending? :
Family Ties: DNA Searches
In The News
Post Conviction Comer
Commission Complicit in Pri\:,ate Prison Fraud
Notable Cases

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Florida Prison Legal Perspectives

Fl08IU18,80111'-0."-': . .

~"
A SO I (c) (3) NonllrOfit Organization

Fax (407) S68-o2GO

E-mail: (P1p@llOl.com
Website: W\\w,fplao prg

fPlAO DIRECTORS
Teresa Bums-Posey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton, Esq.

FPlPSTAff
Publisher
Editor
Research

Teresa Bums-Posey
Bob Posey
Sheni Johnson

ADVISORY BODD
William Van Po)'ck

Anthony Stuart

2

Linda Gottieb
SusanManning

Prison officials also claimed that forcing them to comply
with RLUIPA would compromise prison security as
prison gangs use religious activity to cloak their illicit and
often violent conduct
.
The federal distript court rejected the argument
that section 3 conflicts with the Establishment Clause and
prison officials' weak, and basically unsupported, claim
that enforcement of RLUIPA would, inevitably. threaten
prison security. The motion to dismiss was denied and the
prison officials filed an interlocutory appeal.
Tlie federal Sixth District Court of Appeals
reversed. That court held that section 3 of RLUIPA
"impermissibly advanc[es] religion by giving greater
protection to religious rights than to other constitutionally
protected ri~ts." therefore affording religious prisoners
more rights than nonreligious prisoners. which might. the
court suggested, "encourag(e] prisoners to become
religious in order to enjoy greater rights." That. the appeal
court held, was an unconstitutional promotion of religion
by the government not allowed by the Establishment
Clause. The prisoners sought review of that finding,
which the U.S. Supreme Court granted.
.The high Court held that the Sixth Circuit wrongly
decided the issue.
Foremost. the high Court held, that section 3 of
RLUIPA is compatible ,with the Establishment Clause
because it prevents exceptional govemment-created
burdens on private religious exercise. And courts properly
applying RLUIPA must take adequate account of the
burdens . a· requested accommodation may: impose on
nonbeneficiaries and must be satisfied that th~ Act·s
requirements will be administered neutrally among
different faiths.
Noting that section 3 covers state-run institutions.
in which the government has a great degree of control
uncomparable to civilian society and severely disabling to
private religious exercise, the Supreme Court opined that
RLUIPA thus protects institutionalized persons who are
unable to freely attend to their religious needs and who are
therefore dependant on government·s permission and
accommodation to exercise their religion.
But. the Court held, RLUIPA balances the
accommodation of religiouS exercise so that it does not
override other significant governmental interests. suc~ as
prison security. Lawmakers. who enacted RLUIPA. were
mindful of the importance of prison security and
anticipated that courts will apply the Act·s requirements
with due difference to the experience and expertise of
prison and jail administrat~rs.
In fact. the Court
continued, if prisoner requests for religious
accommodation should become excessive. impose

Florida Prison Legal Perspectives
wUustified burdens on other prisoners, or jeopardize the
effective functioning on an institution, the facility would
be free to resist the imposition, under the compelling
interest provision of the Act.
And finally the Court held that the Act is
constitutional because it does not differentiate· among
bona fide religious faiths.
The Supreme Court did not address the individual
claims of the Ohio prisoners who originally brought the
suit. Instead, it sent the case back to the district court to
hold further proceedings on those claims under RLUIPA
standards as explained by the high Court in its decision.
. Ohio is not the only state to have challenged the
institutionalize person provisions of RLUIPA. Several
states filed briefs in support of Ohio~s position. It is
expected that Ohio and other states will continue to
challenge the law on other grounds where it provides a
measure cof empowerment to prisoners, which prison
officials naturally oppose in any context. For now,
however, prisoners have some protection to exercise their
religious faiths.
See: Cutter, et al. v. Wilkinson, et al., _U.S.--,
_S.Ct.--, 18 Fla.L.Weekly Fed. 8317 (S/3110S).
• All states, including Ohio, receive federal funds for their
prison .systems. .•

SJIDMItt or

srm.?

III. JP>JrDDmliNmm ~ lEm<dllImB?
by Joseph Washawitz

•

here may be a shift from building prisons to offering
rehabilitation in some states. California, for. example,
where 33 prisons were built since 1984, has decided to
build no more prisons and on July 1, 'OS, even renamed its
corrections department the California· Department of
Corrections and Rehabilitations. The last prison built by
California, the Kern State Valley Prison, is reportedly
marked as the first maximum security prison to offer
rehabilitation on a full scale.
Other states, like
Massachusetts and Michigan, have also made a change in
policy and established programs to help releasees reenter
society. But is there really a shift in corrections policy?
Beginning in the 1970's, the powers that began to
~~ on crime, corrections and .law enforcement in a
different way. State and federal taxes (viewed as
pocketbooks from which monies could be indiscriminately
taken, if the excuses were good enough) were used to
erect prisons all over the nation. The entity primarily'
responsible for the boom in prison growth, and the
concomitant caging of hundreds of thousands of men,
women and children, is the American Legislative
Bxchange Counsel (ALEC). In fact, the nation-wide
correction industry was boosted to over $SO billion a year
by the mid-1990's, ~more than two million people were
locked behind bars. ALEC had the answer to generate
revenues; all it needed was the problem.

T

The problem was created through criminal
legislation introduced in large measure by ALEC and its
. constituents. All sorts of common human behaviour
became criminal, or, if already criminal, punishments
became harsher. Public outrage waS founded by political
rhetoric and a well-motivated media campaign. The
agenda was easy to advance, too, because, after aU, who
wants to defend criminals?
It seems that too few Americans actually stopped
to consider why so many. were being labelled as
"criminal" all of a sudden. According to Paul Sutton, a
criminal justice professor at California State University,
San Diego, "The binge of the '80s and '90s was simply
political; it was not correlated to crime or increases in the
civilian population."
.Somewhere in the political landscape, elected
officials forgot that they were supposed to represent all of
the American public...and not play one group against
another. "In the past, it has been you are either for the
victim or for the offender. It was a specious dichotomy,"
said Peggy .Burk, an agent at the Center for Effective
Public Policy: Politicians and law enforcement had begun
to treat hundreds 0 thousands of Americans as though they
were disposable citizens.
An example of misplaced loyalties: intolerance
and ineffective policies, in our public .schools has led to
greater numbers of children roaming the streets with
uninformed minds to guide them (indeed, misinformed if
contemporary media, movies, music and television are
their primary soun:es of information). Another example:
many mental health institutions across the land were shut
down in the name of budget concerns. With the overhaul
effected by ALEC and like>-minded legislators (the "get
tough on crime" agenda), our youth and mentally infirm
were soon packed away in prisons·throughout the nation.
No longer were they children and mentally ill, but
juveniles and offenders.
·"1 applaud California for saying this is the last
prison they are going to build," said Ohio Department of
Correction director Reginald Wilkinson.· Two Ohio
prisons have closed in this century. "If you build a'
prison," Wilkinson said, "you are going to find people to
put in it. u . . . .
. ..
" ."- -,
.
In fact, the present structure of the criminal justice
system not only ensures that more people go to prison to
serve longer sentences but also ensures that two-thirds of
all prisoners are rearrested within three years of their
release. .These statistics hold true despite a drop·in the
crime rate nationally. Thus far politicians acknowledge
no responsibility for the $SO-plus-billion-dollar-a-year
beast that is the corrections industry, nor for the lives,
families and economics damaged by the tough-on-crime
rhetoric used to allocate taxes to me>-too pockets. Prison
spending increased by more than 1,000 percent in the
United Stats over the past 1S years.
I

3

Florida Prison Legal Perspectives
Despite an across-the-board decrease in crime,

most sheriffs. police commissioners and law enforcement

lobbyists still have their hands out for more taxpayer
dollars; moreover. to justity the budgets already in use.
law enforcement is driven to' be more inventivo-indeed,
creati'{~in its "protection" of the public. This. in many
instances. the' public servant is transformed into the
suspicious and intrusive inquisitor.
To some, the
arrogance encountered in those sworn to "serve and
protect" is appalling.
Where the media is often used as a tool to
promote universal fear for isolated crimes. grassroot
outcries are beginning to influence the political landscape
in the opposite direction. Groups like Families Against
Mandatory Minimums are attempting to unveil the
troubled reasoning behind placing our citizens in prisons
for decades at a time for property crimes or cries that
involve no injuries. The discontent does not stop there:
overextended state and federal budgets are ~using some
politicians to raise eyebrows and ask questions. The
correctionsllaw enforcement beast has gotten out of hand,
and something must be done about it
Hence, the shift in focus is now to try
rehabilitation.
Irl California. Governor Arnold
.Schwarzenegger (R) has called for. a conceptual shift,
which may indicate that something more than
rehabilitation of prisoners is in order: perhaps the
rehabilitation ofthe criminal jUstice system.
But some are unconvinced that a shift is occurring
at all. Rose Braz, director 'of Critical Resistance, stated
that Governor Schwarzenegger has cut educational
programs and added beds to existing facilities. "Beyond
rhetoric, we have not seen [the governor] put his money
where his mouth is~" she said, "other than changing the
name of the department and shuffling some chairs
around." The Florida' Department of Corrections has
likewise cut education and added beds in its prisons.
It may be that there is no shift, but a recession of a
sort due to the strain on the nation's financ:eS. Professor
Sutton said, "Why all of a sudden does it stop? Once
again it is not tied to a crime tum around or people leaving
the state [of California]. Once again it's political. This
time the politics driving the ch8nge is economics."
Actually, it was always economics; what started
out as a cute little revenue generator has turned into an
obese beast that is hungry for billions and billions
of
taxpayers"dollars. and it is ravaging the society that it is
supposdd to be protecting. A shift mayor may not be in
the making. but one thing is certain. A shift is needed. A
big one.
'

more

[Source: Christian Science Monitor. 6120/0S] •

4

lFJIolri&lll JP>JrUcmelr ~.
~AmmelDlldlmmeimt <CIldmm
by Glenn Smith
t a recent settlement conference conducted by a
A
senior magistrate judge in Smith v. Mingo, U.S.
District Court Southern District of Florida Case No. 04140IS·CIV-MiddlebrookslWhite. prisoner Glenn Smith
settled a First Amendment claim against former Florida
Department of Corrections Warden Timothy Mingo.
While warden at Martin Correctional Institution,
IndiantoWn. Florida, Mingo repeatedly refused to allow
Smith to receive, routine mail containing newspaper
clippings. even after FDOC central office officials had
approved Smith's receipt of the clippings. The central
office response to Smith's grievance of the newspaper
clipping's rejection stated, "We cannot conclude that they
are a threat to security." The rejections took place during
a period when the FDOC was engaged in formal
rulemaking proceedings to amend the routine mail rules
specifically to allow clippings and other enclosures.
At a status conference preparatory to a bench trial
in the case, District Judge Donald M Middlebrooks
ordered the settlement conference, indicating that the
necessary due process applied to Smith's First
Amendment rights was apparently the grievance
procedure which Smith followed and was successful on.
But, Judge Middlebrook noted that due process was
essentially abrogated when "Mingo said no." The judge
also told Smith the clownside at trial would be that it
didn't appear that he had much in the way ofdamages.
Smith was ably represented at the settlement
conference by Rene D. Harrod of the Ft Lauderdale office
of the law firm Berger Singerman, which took the case
pro bono through the Volunteer Lawyers Project of the .
Southern District of Florida. Smith had contacted the
Project for assistance prior to the status conference.
The case was settled for $SOO to Smith and $2S00
to the attorneys and Project. •
.

lFilIDIIlftIly n.:

lD>NA.~.UJmccver
OOcn''II'Ilnium lFammftIly ~
by Oscar Hanson
aw Enforcement agencies in the United States and the
L
United Kingdom have begun to solve not just crimes
committed by suspects whose DNA profiles are in
govenunent databases. but also those committed by
relatives whose profiles were not on file. Siblings.
parents. and even uncles and cousins are being
investigated for crimes because their genetic fingerprints
closely resemble the DNA of a known criminal.

Florida Prison Legal Perspectives
The technicians determined that Brown and the
man they were seeking likely inherited their DNA from
the same parents. Law enforcement took that information
and began to stalk Brown's brother, Willard. They got
what they were looking for when Willard discarded his
scenes.
cigarette butt. PoliCe collected I and extracted DNA from
Statcc and federal agencies have collected over 2.4
the saliva. It was a perfect match with the DNA collected
million DNA profileS and have used those profiles to
from the crime scene. .
.
solve more than 16,000 cases. Police expect to use
Willard Brown ultimately plead guilty to the
familial profiling to double or even triple the size of the
crime that had. occurred nearly '10 years earlier and was
databases without adding new samples.
Yet the new techniques raise a.host of ethical and .' sentenced to life in prison. plus 10 years. Meanwhile, the
man who .was wrongfully Convicted of the ~rime was
legal questions: Is it fair for.someone who has committed
finally freed ·after spending 18 years in prison for the
no crime to become a "virtual" suspect because he
crime and had persuaded a court to order DNA testing.
happens to have a relative who. has been required by la~
But as this case demonstrates how,D~A advances
to provide his DNA profile because of his crime? And··
can free innocent men, the technology of familial searches
how can familial searches of DNA' databases avoid
has pitfalls.. In 1999, Great Britain thought it had matched
violating the rights of unrelated people whose· genetic
a DNA sample from the scene of an unsolved crime to a
profiles happen to resemble that of someone in· the
man who had a perfect alibi. He was in jail when the,
databases? Since all humans share some similarities in
.crime occurred.
their DNA, thousands of unrelated people could have
The convict's DNA and that from the crime scene
DNA profiles that partially. match.
.sample matched at 12 alleles.. Had this man not been in
Here's how the technique works:
Familial
jail, he. could have been a prime target for awrongfuJ
searching is based on the power of modern computer
convjction.'
databases and on genetic principles that are as old as the
human race.
..
.
The technology on familial searches is relatively
new in the United States t and· there are few Jaws on the
With the exception of identical twins, each
subject.
person's DNA profile is believed to be unique. But long
Federal privacy law bars the FBI from performing .
stretches of the chemical sequences that make up the DNA
familial searches within its own databases. Yet New York
molecule are identical in all humans. DNA analysis works
and Massachusetts have laws that authorize familial
by comparing areas, called alleles, where the sequence
varies greatly among individuals.
I
searching. California's DNA database technicians report
In the 90s, the· United States and· the United
partial inatches that "appear Useful" to law enforcement,
.Kingdom began to maintain databases that use a series of
but theY do not actively search for relatives. In VU'ginia
such alleles to match DNA from unsolved crimes to
lab examiners are permitted to tell law enforcement that a
crime scene. sample might have come from a family
known or suspected offenders. Nationally, state and
federal agencies keep DNA indexes of suspects and
member when the DNA near match is very, very close.
unsolved Crimes, and share information through a
Beginning this year, Florida's DNA 'database
operators have bee permitted to give investigators the
computer system maintained by the FBI.
Herein lies a slippery slope: SiblingS inherit their
names of convicted· offenders. who match a crime scene
sample at 21 of 26 alleles. According to David Coffinan, .
DNA from both parents, meaning that even non-twin
a state crime lab supenisor, research using Floridats
siblings often have several alleles in common. Only a
complete match, meaning 26 identical alleles, can be used
convicted 'offender database suggests that· men who ,have··
to Connect a suspect to an unsolved crime. But a near . 21 alleles in common almost always are brotherS;' AlDiost ..
match call indicate that the suspect·is a close relative. Just
always?
. . .
how many alleles dOes it take to connect .the relative?
Florida also has begun searching its database for
. Only 16. The problem is that unrelated people can have
rape suspects by using the DNA of children born to rape
.some ofthe same genetic markers.
.
victims to identifY their fathers. The database has helped .
The evolution of this science came into the
solve at least eight rape cases. •
/ spotlight when North Carolina authorities· were searching
MnrdIe fa nUt
for the man who raped and killed a Winston~Salem·
1'IIpl cUcaIt ar' CIIIllIIDCII
newspaper editor. Lab technicians compared DNA left at
...... IIlIwnldIIa In FPLP. Par
," " . am IIId I'IIlI iIIfonIIItIoo
the crime scene with the genetic profiles in the state's
wrIcI ar IlIIIIIIO die bOlw:
. '..
. FPLP·
. database. of convicted felons. The crime scene DNA
AllIl:
Adva1lIIaa
didn't match any of the 40,000 felons on file, but I did
15232 BuI CoIoalaJ Dr.
.~PL32126-SlU
offer a clue: The unknown suspect's profile was
or
remarkably similar to that ofAnthony D. Brown.
.....,...I~
5
The familial searches have expanded the power of
the computer databases that authorities in both nations
have used for the past decade to compare genetic profiles
taken from convicted criminals with DNA left at crime

Florida Prison Legal Perspectives

AZ ,- During March 2005, Ray
Krone, who was twice wrongfully
convicted of murder and sentenced to
death. reached a $1.4 million
settlement with Maricopa County,
Arizona. Krone spent over two years
on death row and a decade in prison
overall after being wrongfully
convicted of killing Phoenix
bartender Kim Ancona in 1991.
Advanced DNA testing conducted in
2002 cleared Krone of the murder.

CT - A prisoner who sparked an
anthrax scare when he sent a white
powder to a state prosecutor received
30 ',years in federal. prison on May 11,
2005. Noel Davila, 34, is the fitst
in
person to
be convicted
Connecticut of threatening to use a
weapon of mass destruction. The
letter containing the white powder
was sent in 2002, one year after
someone sent anthrax through the
mail killing five people.
FL - On May 12, 2005, prison
guards and police were searching for
William Hawley, 41, who escaped
from a road crew from a work camp
at Martin Correction Institution,
located
near
Stuart,
Florida.
Charlotte Yoder said she ~ad
unwittingly drove Hawley around for
three hours and gave him $20 for a
ineal. Hawley had told Yoder his car
had broken down. He waS serving
10 years for charges including
burglary and theft.

6

FL - On March 4, 20()5, former
Hernando County jail guard Louis
Gregory, 38, was sentenced to six
months in jail after pleading guilty to
sexual misconduct involving the
sexual assault of a 17-year-old
female prisoner at the jail. The jail is
run by the private, for profit
Corrections Corporation of America.

FL - Jacqueline Santoni, 25, a
Seminole County Jail guard was
arrested and charged with driver
license fraud, forgery, perjury and
criminal use of a public record on
March 19, 2005. Santoni, before
being hired at the jail in Dec. '04,
had worked as a prison guard at the
Central Florida Reception Center in
Orlando.
There she started a
relationship with a prisoner and in
order to visit him and conceal it from
the jail, which prohibits such
relationships, she obtained state
identification under a false name.
GA - Tommy Cardell, 52, a guard at
Rogers State Prison, was reinstated
to the payrolls May 23, 2005, while
th~ Georgia Bureau of Investigation
and Department of Corrections
his
claims. that
investigates
handcuffed prisoners were beaten at
the prison. Cardell says he was fired
May 11. On May 23 he was unfired
and suspended with pay. Five others
at the prison, including the warden
and deputy ~arden, were also
suspended with pay pending the
outcome ofthe investigation.

MA·- David Smith, 58, a former
Taunton police officer, was allowed
to enter a plea agreement during May
'OS that will allow him to keep his
pension .and stay out of prison,
despite the fact that he admits
molesting his adopted daughter.
Smith resigned after his arrest and
was sentenced to four years of
probation under the agreement,
although he admitted to assaulting
the child almost every night for a
year starting when she was 7-years
old. As part of the agreement Smith
was ordered to undergo sex offender
counseling and stay away. from the
child. (Talk about benefits of the
job!)

National - US CaUJolic bishop!
launched a campaign during Marct
'OS against the death penalty. Th(
effort will
include
increased
advocacy in Congress and state
legislatures, and filing legal briefs in
death-penalty cases.
Archbishop
Theodqre McCarrick of Washington,
DC, said the campaign fits into the
church's general ideology of respect
for life. Use of the death penalty has
been falling. In 2004, 59 people
were executed, the lowest number
since 1997. The number of people
sentenced to death· has also fallen,
from a high of 320 in 1996 to 136 in
2004.

TN - A state prison guard resigned
as officials investigate the fatal
stabbing of a prisoner just minutes
after the guard left his post. Sgt.
Warren Russell claimed stress caused
him to resign about two weeks after
prisoner Keith Drinkard was stabbed
. to death and his body set on fire at
Riverbend. Prison. Another guard
was fired over the same incident.

VA - During Apr. 'OS advocacy
groups launched a campaign to help
convicted felons regain their right to
vote. Those organizing the Virginia
Voter Restoration Initiative say they
will soon an~ounce a toll-free
number where convicts call to get
help filling out lengtly voter
restoration applications.

FL - During July 'OS almost 3,100
prisoners and hundreds of prison
employees were tested at a women's
prison in Marion County after
confirmation of three cases of
tuberculosis and five suspected cases
were discovered, said the Fla. Dept.
of Corrections. The facility was
placed under quarantine, visitation
was suspended and transfers of

Florida Prison Legal Perspectives
prisoners in or out of the facility
were stopped.
FL' A federal lawsuit was filed
against the Jacksonville Sherifrs
Office in July 'OS by Ginger
Laughon' the mother of John
Laughon, 39, who suffered injuries
in Feb. 'OS after getting in a fight
with guards at the jail. Laughon's
injuries have left him in a persistent
vegetative state. He was serving time
in the jail for marijuana possession.
According to reports, Laughon was
placed in a restraining chair. for
attacking a guard at the jail. Later,
reports claim, he was .found out of
the restraints and then attacked two
other guards, they had to restrain
him. He was then taken to a hospital
, for treatment of minor injuries and a
mental evaluation. When he arrived
he was not breathing, had no pulse
and was cold. Doctors resuscitated
him, then found he had nine broken
ribs, both lungs punctured and a head
injury. U",dersheriff Frank Mackesy
said Laughon only had minQr injuries
when taken to the hospital and that
the more serious injuries may have
been caused by doctors resuscitating
him.
National - The federal Bureau of
Prisons is moving to collect DNA
samples from all prisoners in fede~l
custody or under fedelfll supervision
who have a conviction for any type
felony, sex offense, violent crime or
conspiracy to commit such crimes.
The DNA samples are being
collected for the FBI's electronic
Combined DNA Index System'
• (CaDIS).
Authority
for
the
collection was included in the Justice
for All Act of 2004 that was passed
in October 2004. Those refusing to
cooperate will be charged with a
Class A misdemeanor, carrying up to
a year in prison. The Act also
provides that those required to
provide DNA samples may be
subjected to whatever means are
necessary to collect the samples.

PA - Prisoner in Blair County Jail
must pay a $50 fee if they wasn't to
visit their children. The fee covers
transporting prisoners two blocks
from the jail to the courthouse and
salaries of deputies who monitor the
visits, said Sheriff Larry Fiel~. It
would also cut down on "frivolous
visits," Field said. Prisoners and their
families protested the fees and the
jail warden said he would look at
other ways to pay the cost of visiting.

LEARN TO
PROTECT
YOUR
RIGHTS
YOU HAVE A RIGHT TO

PA - On August I, 'OS, Thomas
Doswell, 46, who spent 19 years in
prison for the 1986 rape of a 48-yearold woman at a hospital in
Pittsburgh, was released after new
DNA tests proved he didn't commit
the crime. Prosecutors had opposed
the new tests but were overruled by a
jUdge. Doswell had been convicted
on witness testimony resulting from
an apparently rigged photo lineup
conducted by police. The victim and
other witnesses picked Doswell out
of a group of eight photos shown to
them by police. DosweWs photo had
the letter "Rn underneath it,
signifying, he was a rapist. The
Pittsburgh police no longer marks
photos with an "R!' Doswell had
said he was innocent from 'the time
he was charged. He was represented '
in his DNA challenge by the
Innocence Project at, the Cardozo
School of Law at Yeshiva University
in New York. _
'

•
•
•
•

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7

Florida Prison Legal Perspectives
~
, ..
•

-.""0

...;

POST CONVICTION
CORNER

'~.

by Loren Rhotcm, Esq.

Often when a 3.850 Motion for Postconviction Relief makes it to the stage of an
evidentiary hearing, it seems that the State will take whatever position is necessary to refute the .
movant's claims. Sometimes this means that the Stat~ will take a position which is directly in
conflict with its previous position at trial or on appeal. It is improper and unethical for a
prosecutor to do this. Unfortunately, though, it happens often enough that one should be
prepared for such tactics at an evidentiary hearing. If and when the State tries to switch
arguments on an issue at a postconviction evidentiary hearing, one should be ready to argue the
doctrine ofjudicial estoppel to prevent such an unfair and opportunistic attempt to refute claims.
In Florida, the general rule ofjudicial estoppel is that a claim or position successfully
. maintained in a former action or judicial proceeding bars a party from making a completely
inconsistent claim or taking a clearly conflicting position in a subsequent action or judicial
proceeding, to the prejudice of the adverse party, where the parties are the same in both actions.
Grau v. Provident Life and Acc. Ins. Co., 899 So.2d 396 (2005); see also, Federated Mut.
Implement and Hardware Ins. Co. v. Griffin, 237 SO.2d 38 (Fla. Is DCA, 1970) [Litigants are not
permitted to take inconsistent Rositions in judicial proceedings, and a party cannot allege one
state of facts for one purpose and at the same action or proceeding deny such allegati9ns and set
up a new and different state of facts inconsistent thereto for another purpose]. The doctrine of
judicial estoppel has been developed to protect the integrity of the judicial process and to prevent
parties from "making a mockery ofjustice by inconsistent pleadings." Grau quoting American
National Bank v. Federal Deposit Ins. Com., 710 F.2d 1528, 1536 (l ph Cir. 1983). Judicial
estoppel further prevents parties from "playing fast and loose with the courts." Russell v. Rolfs,
893 F.2d 1033, 1037 (9 th Cir; 1990). A situation justifying the application ofjudicial estoppel "is
more than affront to judicial dignity. For intentional self-contradiction is being used as a means
ofobtaining unfair advantage in a forum provided for suitors seeki~g justice." Scarano v. Cen.
R. Co. ofN.J.. 203 F.2nd 510, 513 (3rd Cir. 1953).
Thus, ifa prosecutor argues an issue one way at trial and then latertakes the opposite
position at a postconviction evidentiary hearing, he should be judicially estopped from using the
intentional self-contradiction as a means of obtaining an unfair advantage at the evidentiary
hearing; Even if the prosecutor at the evidentiary hearing is different from the original
prosecutor on the case, he still should not be able to argue a position which conflicts with the one
which the State presente~ at trial or on appeal. Any State Attorney's office is the equivalent ofa
law firm.
Loren Rhoton is a ",ember in good standing with the Florida Bar
and a member ofthe Florida Bar Appel/ate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area o/the law, both at the State and Federal Level.. He has assisted
h~ndreds ofincarceratedpersons with their cases and has numerous
written appel/ate opinions. •
8

Florida Prison Legal Perspectives

State Watchdog Commission
C.omplicit in Private Prison Fraud
.

by Sandra Arnold

T

he two' .private, for-profit prison. companies that
receive taxpayer money to run five prisons in Florida
were allowed to over bill the state by almost $13 million
and even rebated some money to cover expenses and
salaries of the commission that was suppose to be policing
their contracts, according to a newstate audit.
The audit was released a year after the state Legislature
abolished the controversial Correctional Privatization
. Commission (epC). (See: FPLP, Vol. 10, Iss. 6, pg.. 4.)
The CPC h~ been set up to oversee the contracts between
the state and two private pr,son companies that have
operated five private, for-profit prisons in Florida for a
decade. The two companies are. Corrections Corporation
of America of Nashville and The GED Group (formerly
Wackenhut) of Boca Raton.
The disclosures in the audit, which was performed by
the Department of Management .Services, that was given
the job of overseeing the private prison contracts last year,
paints a picture of a cozy, if not felonious, relationship
between the defunct CPC and the prison companies.
''The CPC failed to safeguard the state's interests ...
The CPC consistently made questionable contract
concessions to vendors," states the audit report. The audit
was based on records dating from 1997' and include
findings that:
•

The private prison companies were paid $4.5 million
for jobs that were vacant, in part because CPC. failed'
to require the companies to report the vacancies.

•

The CPC authorized $5 million in cost-of-living salary
adjustments at GED's South Bay Correctional facility.
Auditors ~y the money wasn't fully passed on by
GED to employees as required.

•

Corrections Corp. received $2.9 million more for
facility maintenance at Gadsden Correctional facility
than was actually spent on maintenance.

•

The CPC, when the Legislature cut its budge in 2001,
simply increased each private prison company's perdiem rate by. the amol,lnt needed to cover CPC's
operating costs and salaries and the companies "in
tum remitted the per-diem increases' baek .to the
CPC's Grants and Donations Trust Fund," The funds
were then u~ed to pay CPC expenses and salaries that
.
the Legislatlire refused to fund.

.

Alan Duffee, the last director of CPC; said, ~'I agree
.100 percent of what's' in here," referring to the audit.
report. Duffee" who noted that the alleged

discrepaIlcies most occurred before he took over as
CPC' directOr, said it illustrates weaknesses in
privatization, as companies holding contracts use
lobbyists to fend offcompetition and set specifications
favorable to their bottom line. .
Ken Kopczynski. lobbyist for the Police
Benevolent Association, the union for Florida prison
guards which opposes prison privatization, was more
harsh. "We should be talking criminal charges," he
said.
.
But .it.. is very unlikely th~t any serious
ramifications will result. Republican {lawmakers, who
generally promote privatization and reap its benefits,
have been reluctant to change the system despite
recurring questions and evidence showing the state's
private prisons cannot meet the 7 percent cost savings
required by law and as was promised taxpayers when
they were sold the private prison idea a de9ade ago.
fr. f3~t, during this year'f: legislative sesf:icn,'
lawmakers voted to build additional' beds at three of
the private' prison facilIties, requiring a two year
extension on their contracts. And negotiations are
underway to build a sixth private prison in Jackson
County, which either Corrections Corp. or GED will
contracfto run.
Florida's private prisons are a $106.4 million-ayear business. This year Gov. Jeb Bush vetoed
legislation that would have created new protections
for taxpayers concerning all kinds of privatization.
Bush has lead the charge for privatization in Florida.
As long as private prison companies continue to ply
politicians with campaign cash' and lobbyists, and
. Republicans continue to control Florida's Legislature
and governor's office, it's a fair bet that the interests
of the private prison companies will trump the
interests of taxpayers.•

9

Florida Prison Legal Perspectives

The following are summaries ofrecent state. andfederal cases"that may be useful to or have a signif..:ant impact on Florida prisoners.
Readers should alway.~ read the full opinion as published in the Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal
(Fla. L. Weekly Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F. 3d); or the
Federal Supplement 2d (F.Supp. 2d), since these summaries are/or general information only.
'

UNITED STATES DISTRICT
COURTS

Doss v. Crosby, 18 Fla.L.Weekly
Fed. D5RO (N.D. Fla. 6/6/05)
This case irlVolved a petition
for writ of habeas corpus pursuant to
28 U.S.C. section· 2254 that
challenged
prison
disciplinary
proceedings for possession of
narcotics and bribery, which resulted
in forfeiture of gain time, and the
forfeiture of additional days of gain
time as the result of an audit.
The respondent" James V.
Crosby, Jr., filed a motion to dismiss
Richard Scott Doss petition as moot.
Respondent asserted that Doss had
been released from prison ,on the
expiration date ofhis sentence.
Doss replied to the' motion to
dismiss raising two arguments in
contention that his petition was not
moot.
First, if the unlawfully
forfeited pin time were to be
restored. he could· have started
serving his probation (to which he
was released on expiration of
sentence) much sooner.
Second,
Doss contended that the petition is
not moot because he may not seek
compensatory 'relief for false
imprisonment until the disciplinary
reports are overtUrned.
A Magistrate Judge filed his
Report and Recommendation. which
asserted that Doss' first argument on
reply was not persuasive. According
to exhibits brought out in the
respondent's motion to dismiss. Doss
was sentenced 'to . 22 years
imprisonment and 8 . years of
probation. a probationary split
sentence under Florida law. This
made Doss' issue smular to that in a
10 prior case that was ~rought befOre

'512 U.S. 477 (1994). The Supreme
the district court. In that case, it was
found by the Magistrate that a
Court has said: "That is a great non
sequitur, unless one believes (as we
petitioner challenging the loss of
.donot) that a section 1983 action for·
gain time (based on allegedly false
and retaliatory disciplinary reports)
damages
must
always
and
everywhere be available...
See:
was mooted by expiration of the
sentence, even though petitioner was
Spencer v. Kemna, 523 U.S. I, 17
released to the probationary portion
(1998). See also: Nonnette v. Small.
316 F.3d 872,' 876-878 (9tb Cir.
of his split sentence. That rationale
2002), cert. denied, 540 U.S. 1218
followed United States v. Johnson,
529 U.S. 53 (2000). •
'
(2004)(because
no
case
or
In Johnson it was found that
controversy remained for released
the Florida Statute authorizing a split
inmates and habeas petition would be
moot· under Spencer, Heck did not
sentence specifically states that the
defendant may be placed on
bar settion 1983 suit).
probation "upon completion of any
As a result, the Magistrate
Judge's .report recommended that·
specified period of such sentence,"
respondent's motion to dismiss be'
and that the period of probation' or
granted and Doss' petition be
community control "shall commence
dismissed as' moot. There were no
immediately upon the release of the
defendant from
incarceration,
objections to the recommendation
whether by parole or gain-time
and the district court held that the
allowances." See: Florida Statutes,
report and recommendation was
section 948.01(6).
correct and adopted it as its opinion.
The district court added an additional
The Magistrate stated that
the same statutory language applied , note: "[T]he conclusion that this
in Doss' case, and Johnson controls.
petition is moot is correct regardless
Doss could not serve his probation
of whether petitioner's release
removes the· bar to any civil Cause of
and incarceration simultaneously and
action he .might have, under 42
even if he could prove that gain time
was wrongfully forfeited, the court
US.C. section 1983 or otherwise, for
could not grant relief.' Under Florida
challenging the revocation of his
law, gain time may only be applied . gain time."
to shorten the term of imprisonment
and that term had expired.
Therefore,
. the
Magistrate
FLORIDA SUPREME COURT
recommended that Doss' petition
should be found moot.
Van'Poyck v. State. 30 Fla.L.Weekly
In regards to Doss' other·
S373 (Fla. 5/19/05)
argument. it was stated that it was
William Van Poyck, along
unsuppOrted.
The United States
with his accomplice Frank Valdes·,
Supreme Court has rejected the
was convicted of first-degree murder
argument that a habeas petition is not
of a Florida correctional officer
moot because a 42 U.S.C. 1983
during a botched 1987 attempt to free
action for damages would then be
a mutual fti~d from a prison
foreclosed under Heck v. Humphrey,
transport van. Both defendants had

Florida Prison Legal Perspectives
was decided speedy trial rights were
19, 2005, a majority
of the Florida Supreme Court
waived.
The decision made by the
disagreed with Van Poyck and
First District expressly and directly
upheld his death sentence. In a 6-1
vote, the Court, while implicitly
conflicted with what was decided by
the Fifth District in Williams v. State,
conceding that Van Poyck was not
757 So.2d 597 (Fla. 5t/a DCA 2000).
the triggennan, nevertheless stated
In Williams, the court rejected the
that "we hold that there is no
argument that because Williams was
reasonable probability that Van
Poyck would have received a lesser . assisting the state he was unavailable
for trial, The court reasoned that a
sentence had DNA eVidence
person' is deemed unavailable, as
establishing that he was not the
trigpnnan been presented at trial."
prescnDed in Florida Rule of
The Court did not cite a single case
Criminal Procedure 3.191(k), for trial
in support of that remarkable
if the person or the person's COWlSel
proposition and simply ignored the ,fails to attend a proceeding where
wealth of prior decisions holding the
their presence is required or the
opposite to be true. Justice Anstead
person or counsel;is not ready for
authored
a vigorous 4-page
trial on the day trial is scheduled.
dissenting opinion, .calling the
The Fifth District had found
majority decision contrary to
that Williams had not (expressly or
'"common .sense and our death
written) waived his right to a speedy
penalty'jurisprudence."
trial, nor had he engaged in conduct
that would stop him from asserting
·Frank Valdes was subsequently
his rights. The same was found of
murdered in his death row cell by
the defendants in the consolidated
Florida State Prison guards on July
cases from the First District.
17, 1999. Despite overwhebiling
It was noted. by the Florida
evidence, none of those guards were
Supreme Court, in reviewing the
convicted for Valdes' brutal murder.
conflicting opinions, that is was the
state that essentially had complete
Bulgin v. State, 30 FIa.L.Weekly
control of the chain of events in the
S368 (Fla. 5/19/05)
Fifth District's Williams' case, as
In this case the Florida
well as the cases from the First
Supreme· Court held that· a
District, (e,g., arrest, offer and terms
defendant's right to a speedy trial is
of the cooperation agreement, renot waived just because the
arrest, lind timetable on filing formal
defendant agreed to cooperate With
charges). It was reasoned that any
the police.
delay or unavailability in prosecution
On review, William C.
and trial would be attributed to the
Dulgin's case was consolidated with
state because of their seeking the
twQ other cases out of the First
benefit
of
the· defendant's
District Court of Appeals, State v.
cooperation to make other arrests•
Patel, and State v. Pelky. In these . To waive a person's speedy trial
cases the First District opined that
right,· there must be some more
'because it was the defendants'
explicit action or evidence of an
agreement to help law enforcement
intent to do so than the mere
in a continuing drug inveStigation
agreement to cooperate with police
and because it was decided to delay
in other criminal investigations or'
prosecutions.
'
trial proceedings due to the
defendant's concern that formal
The Florida Supreme Court
charges and court appearances would
held that the First District improperly
jeopardize their covert assistance, the
attributed the delays to the
delay was attributed to the
defendants. ThuS, the First District's
defendants, not to the state. Thus, it
d~ision in its cases was quashed and
On May

11

Florida Prison, Legal rerspectives
the Fifth District's in Williams was
approved. ,

- have - been - imposed test. Under
that test, scoresheet error does not
require resent~ing if the sentence
could have been imposed (absent a
departure) with a correct scoresheet.
In Anderson's case on
appeal, Anderson v. State, 865 So.2d
640 (Fla. 2d DCA 2004), the Second
District agreed with the lower court's
decision in that the offence level was
incorrect, however, it disagreed with
the standard the lower court used
found in Hummel. Consistent with
prior Second District cases and a test
used by other districts, the Second
District applied a would - have been - imposed test in Anderson's
case. Under that test, a scoresheet
error requires resentencing unless the
record conqlusively shows that the
same sentence would have been
imposed
using
a
corrected
scoresheet. Absent such showing,
the lower court in Anderson's case
was instructed to resentence him
with a corrected scoresheet. ,In
conclusion. the Second District
certified conflict with the First
District's decision in Hummel.
The Florida Supreme Court
noted, in reviewing the conflict,
courts have developed a harmless
error analysis to determine whether a
scoresheet error must be merely
corrected (harmless) or whether the
error warrants both correction and'
resentencing (harmful). This, by
using the would - have - been imposed test, from the original
sentencing guidelines in 1984
through to the current Criminal
Punishment Code, in both rule 3.850
motions and on direct, appeals
regarding scoresheet errors.
In reviewing, the could have - been - impOsed test used by
the First District in Hummel, the
Florida Supreme Court found that the
First District had actually renounced
the would-havo-been-imposed test.
Instead, it had embraced the "new
harmless error analysis to· be applied
in
dealing
with
scoresheet
inaccuracies," which it believed that
the Florida Supreme Court had
adopted in Heggs v. State, 759 So.2d

620 (Fla. 2000). However, Heggs
did not supplant the would - have been - imposed standard for claims
alleging scoresheet errors. Heggs
concerned
unconstitutional
guidelines, and it held that if the
sentence that was unconstitutionally
impOsed could legally have been
imposed under the still - valid 1994
guidelines (without a departure) no
resentencing was required.
The
, Heggs remedy for ,sentences imposed
under the unconstitutional 1995
guidelines does not apply to
situations that do not involve those
guidelines. Th«efore, it was found
by the Florida' Supreme Court that
the test adopted by the First District
in Hummel, rested on a faulty
premise that Heggs imposed a new
standard for determining whether
scoresheet error was harmless.
• Accordingly,
the
First
District's decision in Hummel was
disapproved and the Second
District's decision in Anderson was
approved.
It was noted just before the
conclusion of this case that lhe
decision reached will only apply to '
scoresheet errors raised on direct
appeal or in a motion filed under rule
3.850. Also, although it was stated
that a issue of whether the standard,
would-havo-been-imposed
test,
applied to rule 3.800(a) motions need
not be' reached in this case, it was
opined that such standard may be too
speculative and subjective for
purposes ofrule 3.800(a).

Dmnucr
APPEAL

COURTS

OF

Gomez v. State, 30 Fla.L.Weekly
01152 (Fla. 4* DCA 5/4/05)
Francisco
Leonardo
Gomez's case involved' time
'limitation and jurisdictional issues of
a trial court when it rules on a motion
to disqualify a trial judge.
Pursuant to Florida Rule of
Judicial Administration 2.160, a
motion for judicial disqualification
must be ruled on by the court within'

Florida Prison LegsJ Perspectives

David W. Collins, Attorney at La.w
Fonner state prosecutor with more than 20 years of criminal law experience
"AV.. rated by Martindale-Hubbell Bar Register ofPreeminent Lawyers

Your voice in fal/ahassee representing prisoners in all areas ofpost-convictionre/ief:
Appeals.
3.800 Motions
3.850 Motions
State and Federal Habeas Corpus
'drils oi Mandamu:;
Parole Hearings
Clemency

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

Write me today aboUl your case!
David W. Collins. Esquire
p.6. Box 541
Monticello. FL 32345
(~SO) 997-S!l 1
"The hiring ora lawyer is an important decision thai shoul.; not be based solely upon advertisements. .
Before you decide, ask me to send you free written information about my qualification!> and experience."

.ACheckered Past

13

Florida Prison Legal Perspectives
thirty days following its presentation
to the court.
In Gomez's case the trial
court failed to rule on his motion to
disqualify the judge within thirty
days..Thus, the Fourth District court
of Appeals decided that Gomez's
motion should be granted. ,
It was also noted in Gomez's
appellate review that while a motion
to disqualify is pending. the trial
court is not authorized to rule on any
other pending motions; all such
motions that the trial court has ruled
on must be vacated.

Maine v. State, 30 Fla.L.Weekly
DI 0 It (Fla. I It DCA 4120/05)
In this case. Samuel Maine's
request to the trial court for his
trans(:ripts to use on his direct appeal
was denied. The trial court reasoned
that Maine had waived his right to
appeal, except for the legality of the
sentence he received, which the court
decided was a legal sen~ce.
, The trial court opined that
because Maine had no right to appeal
a legaJ'sentence, and although he was
found to' be indigent, the costs of the
transcripts for purposes of an appeal
should be borne by him and not the
state. As a- result, Maine sought to
have the First District Court of
Appeals quash the trial court's
decision.
He argued that just
because he entered a plea does not
preclude him from pursuing his
direct appeal with a record.on appeal,
citing State v..Trowell, 739 So.2d 77
(Fla. 1999) and Ford v. State, 575
So.2d 1335 (Fla. lit DCA 1991).
In reviewing Maine's case,
the First District" opined ,that an
indigent is entitled .to have all
proceedings transcribed at public
eXpense that' are necessary to support
the claims raised in an 'appellate
As a matter of' equal
court.
protection, the state must ': provide
indigent defendants with the basic
tools of an adequate defense or
appeal. wheD those tools are
available for a price to other
defendants. See: Griffin v. Rllnols,
351 U.S. 12 (1956). Furthermore. a

14

trial court cannot withhold transcripts
based on its belief that no reversible
error has occurred.
Although the lower court in
Maine's case was convinced that his
sentence was legal, the First District
vented that that was judgment for the
appellate court to make, not the
lower .court, after a review of the
record, including the transcripts.
In granting Maine's request
to quasho1 the lower court's order of
denying" him the transcripts, the First
District opined that to decide
otherwise would give another
defendant who can pay for his own
transcripts a greater review than what
would be afforded to an indigent
defendant Thus, the order denying
Maine his transcripts was quashed
and the lower court was instructed to
enter all such orders as are necessary
for Maine to obtain a transcript of
both his plea and sentencing
hearings.

Norman v. State, 30 Fla.L.Weekly
01058 (Fla. 2d DCA 4122105)
In an effort to resolve a
violation of probation (VOP) from an
offense in Sarasota County, due to
being arrested and convicted of an
offense in Alachua County, John Lee
Norma filed a writ of mandamus in
the Second District Court of Appeals.
'In the petition Norman
claimed and presented documents
that the,state had filed an affidavit of
violation, arrested him, and gave a '
first appearance hearing on the
Sarasota VOP in Alachua County.
For relief he sought to compel the
lower court in Sarasota County to
conduct a hearing on the affidavit
alleging VOP, in hopes that any
prison sentence for that VOP can be
ran concurrently with the Alachua
offense.
When just a detainer has
been issued against a prisoner,
generally the prisoner will nOt be
entitled to prison credit in the case
causing the deta~ when he is
sentenced in that case following the
completion of the sentence he would
be currently serving. However, if an

warrant was transmitted and
the prisoner was arrested under the
authority of that warrant for a VOP,
the prisoner may then be entitled to
credit because of him being held on
both the current charge and the VOP
charge at the same time.
In
further
revJewmg
Norman's case the Second District
noted from a prior case that a
prisoner who has actually been
arrested for a VOP is entitled to a
hearing "as soon as practicable."
'See:
section 948.06(4), Florida
Statutes (2004). In Norman's case
the state had not concede that he was
arrested for the VOP, and the
appellate court could not conclude
that the lower court had a ministerial
duty to conduct a hearing when it
may not be deemed "practicable" to
do so since Norman was imprisoned
elsewhere. However, it was opined
that if Norman was correct in that he
was arrested on the affidavit ofVOP,
then it would seem that he would
have a good argument regarding
prison credit for the Sarasota case
that was accrued while serving his
Alachua offense sentence.
The Second District decided
that is would. not resolve the matter
in Norman's case. denying the
petition, but opined that Norman
would be free to. make his argument
if or when the state conducted 'a
hearing on the VOP in Sarasota
County.
arrest

Jewett v. State, 30 Fla.L.Weekly
01152 (Fla. 4lb DCA 5/4/05)
On appeal from a denial of a
motion to .correct an illegal sentence
where Todd R. Jewett. claimed he
had been denied proper jan credit, it
was found that what he was actually
complaining of the Department of
Corrections (DOC) application of
forfeiture ofgain-time.
One of the sentences that the
DOC had a copy of for Jewett was
found not to be the sentence imposed
according to the lower court's files.
That particular copy DOC had in
their file showed Jewett was
sentenced to a ~year prison term

Florida Prison Legal Perspectives
followed by twenty-two years of.
probation for a second degree felony. .
What the lower court files revealed
was a stipulated order vacating that
sentence. which was· Jewett's
original sentence, indicating that he
had been resentenced to nin~Ye8r
prison with no probation imposed.
As a result of these findings
the state . conceded that the
sentencing document DOC had a
copy of and was enforcing was an
illegal sentence. Consequently. the
Fourth District Court of appeals
reversed that sentencing order' and
remanded the case back to the lower
court. directing it to issue an order
vacating ~t sentence. The lower
court was further inStructed to
furnish' the DOC with the vacating
order so it would enable DOC to
reCalculate the forfeiture of gain-time
in accordance with the correct
sentencing document.

Cooper v. State. 30 Fla.L.Weekly
01156 (Fla. 411I DCA 5/4/05)
The issue that was involved
in Clayton Cooper's case concerned
the trial court instructing the jury, in
part, with a non-existent crime as a
lesser included offense instead of
giving the proper lesser included
offense.
Cooper had been charged.
with attempted first-degree murder.
but was convicted of attempted
second-degree murder following a
jury trial.
The contents of the
instruction the trial court issued
related to. in Part. attempted
manslaughter
by
culpable
negligence, a non-existent offense.
On appeal. the Fourth District Court.
of Appeals opined that it was
fundamental error for the trial court
to instruct the jury that it may find
guilt of the non-existent crime
instead of giving the proper lesserincluded offense instruction. See:
Reid v. State. 656 So.2d 191 (Fla. 1It
DCA 1995).
The state argued that Cooper
had not been convicted of the n0nexistent crime. he was convicted of
attempted second-degree murder,

which was supported by the record.
causing Cooper's case to be
distinguishable from ReId. The state
also cited to State \/. Abreou, 363
So.2d 1063 (Fla. 1978) and argued
that in Abreau it was held that
"[oJnly the failure to instruct on the
next
immediate
lesser-included
offense
(one
step
removed)
~nstitutes error that is per se
reversible."
When the omitted
instruction relates to an off~e two
or more steps removed. the error is
harmless.
The
appellate
court,
however, noted that, the Supreme
Court later clarified that, Abreau
"stands for the rule that a refusal to
instruct on a lesser include offense
two steps removed from the offense
for which defendant is convIcted is
harmless error." See: Acenslo v.
Stale, 497 So.2d 640, 642 (Fla.
1986).
The Fourth District found
that the trial court in Cooper's case
did not instruct on the next lesser
included offense of attempted
manslaughter, but rather. instructed
on ~ non-existent offense. It was
concluded that under Abreau and
Acensio the error was fundamental
and Cooper was entitled to a new
trial. Accordingly, Cooper's case
was reversed and remanded for a
new trial.
WIlliams v. Stale. 30 Fla.L.Weekly
01157 (Fla. 411I DCA 5/4/05)
The main issue involved in
Mack Charles Williams' case was a
seizure of drug paraphernalia when
authorities conducted an Inventory
search of Williams' car subsequent
to his arres~ for possession of
cocaine. The arrest for possession of
cocaine was executed away from
where Williams' car was legally
parked and where he was initially
approached by the arresting
authorities.
After
Williams'
arrest,
authorities allegedly followed their
standard policy in the impo~
of his car by conducting an inventory
search. That search revealed a crack

cocaine pipe and digital scale found
in the car. As a result, the authorities
further charged Williams with
possession ofdrug paraphernalia.
At triat. Williams sought to
~uppress the evidence found in his
car, arguing that the search was an
unjustified inventory search. The
trial court denied the motion to /
suppress. it concluded that the
standardized policy to tow an
arrestees' vehicle, upon arrest, is
"one of, the possible justifications"
for a warrantless search. Williams
appealed the denial of his motion to
suppress.
The Fourth District Court of
Appeals noted that warrantless
searches are generally prohibited
pursuant to the Fourth Amendment.
However. it was further noted that
well-recognized exceptions to the.
general prohibition have been,
created. One of those exceptions is
the inventory. search.
. It was
explained that such a search
the needs of protection of the
owner's. property, protection, of
police against claims .of lost 'or stolen
property. and protection aSainst
potential danger from such things as
explosives.
,
To satisfy the Fourth
Amendment for an inventory search.
. law enforcement must, conduct the
search in good faith and not use it as
a subterfuge to conduct a warrantless
search for incriminating evidence.
See: U.S. v. Prescott, 599 F.2d 103
(511a Cir. 1979)., A court' must
determine the inventory search's
purpose in whether the impoundment
of the vehicle was justified. and not
just a pretext to an exploratory search
of it "Standing alone, the arrest of a
defendant does not justify the
.impoundment of his legally ~
car." Quoted from Robert M. Gross.
Automobile Inventory Searches. L V
6 Fla. Bar J. 483, 484 (June,
1981Xciting G.B. v. State. 339 So.2d
696 (Fla.2d DCA 1976».
The Fourth District found
that Williams' car was legally parked
in a .parking lot There was no
evidence presented that the care was

serves

15

Flqrida Prison Legal Perspectives
in danger of creating'a hazard to the
public or of· being lost or stolen.
Consequently, it was concluded that
the state may .not rely on the
inventory search of Williams'
vehicle.
Accordingly, the denial of'
the motion to suppress the related
evidence seized during the inventory
search was reversed. Williams' case
was remanded for the lower court to
vacate the conviction and sentence
for' the use or possession of drug
paraphernalia.

; Florida Parole Commission v.
Hulkelbury, 30 Fla.L.Weekly DIl87
(Fla. III DCA 516/05)
This case pointed out some
. of the necessary showing a petitioner
, must make to establish abuse of
. discretion by the Parole Commission
when it decides to suspend a
presumptive parole release date and
defer setting an effective parole
. release date.
The First District Court of
. Ap~Is.. cit~ tp Williams v. Florida
Parole 'Commission, 625 So.2d 926
(Fla. III DCA 1993). In Williams it
was observed that an abuse of
discretion may be established. in
various ways, including a showing
that the commission deviated from
the legal requirements imposed upon
it, such as the obligation to review
the inmate's complete record and to
articulate the basis for its decision.
An abuse of discretion also occurs if
the denial of parole is based upon
illegal
grounds
or
improper
considerations.
Once it can be shown that an
'. abuse! 'of' diScretion has been
committed, the Parole Commission's
decision can be set aside by a court
directing the Commission by order to
reconSider its decision.
. The petitioner in this case
failed to show any of the showings
necessary to establish abuse of
discretion by the Parole Commission,
therefore the denial of his petition
was aftinned.

16

The First District reasoned,
however, that.by strictly construing
the rule regarding its time limitations
in Anders cases would present a
procedural quagmire. The United
, States Supreme Court in its Anders
deCision expressly provided for the
indigent appellant to raise any points
on appeal that he wished in a
separate pro-se brief.
It clearly
intended to allow the indigent
appellant to continue with the
proceedings pro-se and any pro-se
poirits raised on appeal would
supplement the 'exhaustive review
done by the appellate court to the
extent they were properly preserved.
Proctor sought to preserve or
have corrected three errors. in the
written judgment It was nOted by
the First District that those errors did
exist. However, absent the trial
court's ruling on a rule 3.800(bX2)
motion, the errors were not
preserved, thus precluding the errors
from being addressed on appeal.
The First District gave the
opinion that not to allow the filing of
a rule 3.800(b)(2) motion after the
filing of a counsel's Anders brief
would render meaningless the
appellant's ability to file a pro-se
initial brief to the extent that
sentencing' errors were raised in it.
The outlet create by the Florida
Supreme Court for preserving such
errors in rule 3.800(b) would no
longer be available. A counsel's
Anders brief should not be construed
as a "party's first brief." To be held
otherwise would prevent a pro-se
appellant from preserving aJleged
sentencing errors that were missed
by an appointed counsel:
The opinion of the First
District conflicted with that of the
Fifth District in Rodr~ez v. State,
881 So.2d 671 (Fla. 5 DCA 2004).
In Rodriguez it was held that a pro-se
appellant may not file a rule
3.800(b)(2) motion after an Anders
brief has been filed.
The First
District noted that the Fifth· District
not only construed the Anders brief
as the "party's first brief," it also was
determined. by the Fiftli District that

Florida Prison Legal Perspectives

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Florida Prison Legal Perspectives
such a motion (rtlIe 3.800(b)(2»
would 'be an unauthorized filing
because the appellant would still be
represented by counsel at the time of
the filing.
Nevertheless,
the
First
District conciude that to accept the
view as opined by the Fifth District
in Rodriguez would remove the main
internal functions of the spirit of
Anders. The indigent litigant's right
to raise his own points on appeal
would become simply illusory if he
was barred from filing a motion to
properly preserve the issues on
appeal raised within his pro-se brief.
. The First District granted
Proctor's motion for' leave to file a
rule 3.80O(bX2) motion in the lower
court, and certified conflict with the
Fifth
District's
decision
in
Rodriguez.

not exceed the initial number) which
. agrees with Tubb v. Florida Parole
Commission, 580 So.2d 616 (Fla. 511l
DCA 1991).

. Thomas v. State, 30 Fla.L.Weekly
01280 (Fla. 4th DCA 5/18/05)
In this case Dorrie M.
Thomas filed a rule 3.800(a) motion
in the lower court that challenged
parole statutes. The lower court
determined that Thomas did not have
an illegal sentence and due to the
motion challenging parole statutes,
the motion was treated as a petition
for writ of mandamus, the proper
vehicle in reviewing parole statue
challenges.
' .
On appeal, the Fourth
District Court of appeals affirmed the
lower court's decision of treating the
motion as a petition for writ of
mandamus. However, it was found
that the lower court erred in requiring
Thomas to comply with section
57.085, Florid Statues. Collateral
criminal proceedings are exempt'for
that statue and the general indigency
statue.
Section 57.081, Florida
Statutes, would apply. See: section
57.085(10), Fla. Stat. and Cason v.
Crosby, 892 So.2d 536, 537 (Fla. 1"
DCA 2005).
.
Nevertheless, Thomas was
found not to be entitled to relief
because his claims have been fully
litigated more than once and without
merit.
[Note: This appears to be. the first
case finding that Florida parol~
eligible prisoners may proceed as
indigents under s. 57.081 instead of
s. 57.085 in challenging parole
commission actions, inactions or
statutes. An important distinction as
far as paying filing fees goes. - bp.]

Jumper v. State, 30 FIa.L.Weekly
01309 (Fla. 2d DCA 5/25/05)
Laine A. Jumper originally
filed a rule 3.850 motion in the lower
court, timely filed one-year' and 363
days after his judgment became final
from a direct appeal. The lower
court dismissed the motion because

Jumper failed to include a proper
oath. The order of dismissal stated it
.would allow Jumper to refile a
legally .sufficient motion. Because
the order failed to specify a time
limit to refile, Jumper sought a
rehearing or clarification regarding
the amount of time he would have to
refile his rule 3.850 motion.
The lower court granted
Jumper's rehearing or clarification
and issued an order that stated, in
part, "the law is clear that a refiled
postconviction motion that merely
corrects a technical deficiency is not
subject to the two-year limitation"
regarding rule 3.850. The order
reiterated its allowing Jumper to
refile a proper motion again, without .
including any time limit to file it
Almost 9 months after the .
lower court's order granting the
rehearing/clarification
motion,
Jumper refiled his rule 3.850 motion.
Almost one-year after that he. filed a
supplemental motion to the rule
3.850 motion. Eleven months later
the lower court denied all of
Jumper's motions as untimely.
(Jumper had filed tow other
supplemental
motions
several
months after the first supplemental
motion.
However, those two
asserted new claims, therefore they
were properly dismisSed).
On appeal the Second
District Court of Appeal cited to
Mendes v. State, 770 So.2d 202 (Fla.
4th DCA 2000). In that case Mendes
,had been given leave to .file an
amended motion for postconviction
relief. Because Mendes waited eight
months after the leave was granted,
the lower court summarily dismissed
the amended motion as being
untimely. In Mendes, the Fourth
District determined that Mendes had
been granted the leave without the
lower court specifYing a time
limitation of when the amendment
should be filed. Based' on those
fmdings
the Fourth
District
concluded that Mendes' amendment
was not time barred.
.Likewis'e in Jumper's case,
the lower court did not specify a

. Florida Prison Legal Perspectives
limitation as to when Jumper's
deadline would be to refile his
motion. Over and beyond that fact,
Jumper sought a rehearing or
clarification regarding the lower
court's order in relation to the
amount of time he had to .refile, to
which the lower court still failed to
specify.
The Second District opined
that under the circumstances found in
Jumper's case and being consistent
with the Mendes rationale, it decided
to reverse the lower court's dismissal
of Jumper's refilled motion and his
initial supplemental to that motion.
The lower court was instructed to
consider those motions on their
merits.
FIa.L~ Weekly
D1235 (Fla. 5t1l DCA 5/13/05)
The issue involved in this
case concerned whether a firearm is
an antique and it being a defense for
a' convicted felon arrested for
possession of such a firearm.
David Christopher Bostic
was arrested and charged with
possession of a firearm by a
convicted felon. He sought to have
the charge dismissed arguing that the
firearm he was in possession of was
exempt from being defined as a
firearm under the statutes because it
was an' antique. . See: seCtion
790.001(6) Florida Statutes (2001).
The trial court denied
Bostic's dismissal motion' for two
reasons. . First, it pointed to an
interpreted that section 790.23 of the
Florida Statutes as prohibiting any
firearm,
whether
antique. or
otherwise, from being possessed by a
convicted felon. Its second reason
was that because Bostic added a fiber
optic sight tot eh firearm, it was no
longer considered to be an antique or
replica of a firearm manufactured in
or before the year 1918. Bostic
appealed the lower court's order
denying his motion to dismiss the
charge.
The Fifth District Court of
Appeals pointed out that the lower
court's first reason was in error

because the statute, or its face,
provides that the firearm a convicted
felon is prohibited from possessing
excludes an "antique firearm."
However, as to the second reason,
the Fifth District agreed that because
the firearm had been added to with
mOdern equipment, the fireami was
no longer considered an antique as
pr~vided by the statutes defining an
S~: . . section
antique .firearm.
790.00I(1}, Florida Statutes (2001).
The Fifth District also
decided that the term "replica" under
the statute is not so vague as to
As a
render it unconstitutional.
result of the findings the· appellate
court affirmed the lower court's
denial of Bostic's motion to dismiss
charge.

Bostic v. State, 30

[Note: Fifth District's Judge Sharp
gave quite an interesting and· wellwritten lengthy opinion dissenting
from the court's majority decision in
Bostic's case. It is a must read for
convicted felons who enjoy the
hunting seasons and plan to acquire a
legal antiqued firearm for their
hunting purposes.
It depicts
numerous ideas of precautibns one
(convicted felon) should take when
seeking to legally possess such a
firearm.]-as

Smith v. State, 30 FIa.L.Weekly
D1310 (Fla. pi DCA 5125/05) .
In this case the issue
revolved around whether odor of
marijuana on a person, .by itself,
justifies searching an area from
which that person came.
Because of an anonymous tip
to authorities that Douglas Smith was
growing and selling marijuana in his'
home, the authorities went to Smith's
home to question him.
After
entering the home with consent and
seeing no visible incriminating
evidence,
or' receiving
no
incriminating
statements,
the
authorities requested and was denied
consent to search the home. While
there in the home, however" one of
the investigating authorities noted
that he detected a burnt marijuana

odor on Smith's girlfriend's person.
Afterward, consent to search was
requested and denied a second time.
Consequently, the authorities
set up surveillance of Smith's home
nearby while they sought to obtain a
search warrant. During that time,
'Smith, his girlfriend, and their child
entered their car and left the area. A
short time later Smith returned to his
home where he was advised by the
authorities to remain in his car and
that he could not enter his home:
When Smith was advised by
authorities that they -believed there
was probable cause to obtain a search
warrant and were awaiting such,
Smith made a decision and
negotiated with the authorities;
allowing them to search his home.
Ultimately, contraband was found
At trial Smith sought and
.
was denied suppression of the' found
contraband evidence. He had argued
that the authorities lacked probably
cause to detain him and secure his
home, and that the negotiation to
allow the authorities to search his
home was .not a result of his
"consent," but was, instead, an
involuntary submission to authority.
On appeal, it was noted by
the First District Court of Appeals
that in Brown v. State, 330 So.2d
861,862 (Fla. 4t1l DCA 1976), it was
held that "probable cause cannot be
based on mere suspicion, but must be
based on facts known to exist." The
only . incriminating fact "known to
exist" in Smith's case was the odor
of burnt marijuana on his girlfriend
that was used to justify the search of
his home.
Like "plain view."
.whatever probably cause the odor on
the girlfriend would have provided
was limited to the location of the
"plain smell," which was on the
girlfriend.
The First District decided
that the odor of burnt marijuana on
Smith's girlfriend, by itself, did not
amount to probable cause to search
the home. It was noted that the fifth
District has held an opposite opinion
in that it does give probable cause.
See: State \I. Bennen, 481 So.2d 971 19

Florida Prison Legal Perspectives
(Fia. 56 DCA 1986) and State v.
Wells, 516 So.2d 74 (Fla. ~I!I DCA
1987).
Furthennore, it was found in
Smith's case that his consent to
search was coerced. thus involuntary,
it was the result of submission to
authority. Whereofflcers represent
they have lawful authority to search,
a suspect's tesulting acquiescence is
not an intentional and voluntary
waiver of Fourth Amendment rights.
See: Bumper v. North Carolina, 391
U.S; 543, 548-550 (1968).
In regards to the odor of
burnt marijuana being detected on
Smith's girlfriend, the First District
pointed out that if such could have
given probable cause to search the
area from which she came, then the
authorities could search anywhere
she's been: the home she came out
of; the car, 'after she entered it; and
one would have to conclude that if
she stopped and went into a
neighbor's house, that home could be
searched as well.
The First, District declined
the state's invitation to stretch the
"plain smell" doctrine into a de facto
roving proxy for probable cause.
Accordingly, the First District
certified conflict with the Fifth
District's opinion and finding the
search of' Smith's house illegal,
reversed the denial of his motion to
suppress. The case was remanded
for the lower court to conduct
proceedings· consistent with the First
District's decision.

July, 2003 due to failure of paying
court fees or filing an affidavit of
indigenci·
Subsequently, Cooper filed a
rule 3.850 motion in May, 2004,
more than two years after his resen~cing
in' February, 2001.
Consequently, the lower court denied
the ,motion as untimely, and Cooper
appealed that decision.
The Fourth District brought
out that typically, the two-year limit
for filing a rule 3.850 motion does
not begin to run until the appellate
court issues it mandate disposing of a
direct appeal or, if no appeal is filed,
when the time for filing such expires.
Cooper's time limit for the rule 3.850
motion would have expired on or
about March 15, 2003 but, he filed
his belated appeal of the resentencing on March 8, 2003. Being
the Fourth District granted that
belated appeal, it was. as if Cooper
filed the appeal back in February,
200 I, within 30 days from his rosentencing. Thus, not only did the
lower court not have jurisdiction to
rule on the motion, due to the direct
appeal pending. Cooper's rosentencing had not become final until
that appeal was dismissed.
As, such, Cooper's time
limitation to file his rule 3.850
motion did not begin to run until that
dismissal.
Therefore, the Fourth
District concluded that Cooper's
motio~ was timely, and the lower
cOurt's summary denial of his rule
3.850 motion was reversed.

Cooper Y. Stale, 30 Fla.L.Weekly
D1386 (4dl DCA 6/1105)
This case .involved the
timelines of a rule 3.850 motion after
a belated appeal from a re-sentencing

Kennedy Y. Stale, 30 FIa.L.Weekly
D1419 (Fla. 4th DCA 6/8/05)
Ronnie Kennedy's case gave
a good example of a manifest
injustice. if relief was denied and it
did, not matter that it was
successively brought to the lower
court on a rule 3.800(a) motion
because the issue had not previously
been raised in the appellate court.
Apparently, Kennedy had
previously brought up in the lower
court, pursuant to a rule 3.850
~otion, the claim that the lower
court
incorrectly
scored
his

0

0

o

20

became final
Leon Cooper's sentence was
reversed by the Fourth District Court
of Appeals and upon remand, he was
re-sentenced in February, 2001.
Cooper's counsel failed to file a
notice of appeal regarding that rosentencing. Cooper sought and was
granted a belated appeal in May,
2003. That appeal was dismissed in

0

o

conspiracy offense as a level 8 on his
guideline scoresheet.
.Later, .
Kennedy filed a.rule 3.800(a) motion
regarding the subject He argued that
his conspiracy to traffic in cocaine
offense should have been classified
as a level 7 offense. 'The trial court
subsequently denied him relief
stating that his motion was
sucCessive, and Kennedy appealed
this decision.
On appeal, the state asserted
that it disagreed with Kennedy's
argument and relied on the
provisions of section 893.135(5),'
Florida Statues (1998). which make
conspiracies to traffic in illegal drugs
equal in severity to the trafficking
offenses themselves. Consequently,
the state determined that Kennedy's
conspiracy offense should be scored
at a level 9, the same offense level as
his substantive offense of trafficking
in cocaine in excesS of 400 grams
and less than 150 kilograms.
The Fourth District Court of
Appeals, after reviewing the parties
arguments, stated that penal statutes
should be construed in favor of the
accused and against the prosecuting
agency. See: Preston Y. State, 667
So.2d 939, 939 (Fla. 2d DCA 1996).
For that reason, the appellate court
held that the clear reading of section
921.0013 of the Florida Statues
requires . 'that unlisted first-degree
felonies are to be classified as level
seven offenses.
Additionally, . the
state
brought up the issue that Kennedy
previously filed a rule 3.850 motion
in the lower court. In reply, the
Fourth District stated, "However, he
has .not previously raised this issue in
this court. Therefore, we determine
that a manifest injustice would result
ifhe is deriied relie£"
As a result" regarding the
issue raised, Kennedy's case was
reversed
and
remanded
for
resentencing on the conspiracy
offense to score it as a level seven
offense. .

Paige Y. Stale, 30 FIa.L.Weekly
D1368 (Fla. 111 DCA 5/31/05)

0

Florida Prison Legal Perspectives
..
.
This case brought out a
construing the predecessor' to the " Thompson v. State, 761 So.2d 324,
current version of rule 3.850, the
326 (Fla. 2000), later held that the
distinguishing effect from that of the
date on the certificate of service
opinion held in Proctor v. State, . Florida Supreme Court has held that
controls issues of timeliness.
probation "in and' of ~tself"
summeized under this column of this
However, when a document lacks 's "
constituted "custody under sentence"
'FPLP issue herein.
within the meaning of that rule. See: . certificate of service: as' it did in "
On appeal. Terrill Paige's
State v. Bolyea, 520 So.2d 562 (Fla.
Westley's case, then the d8te on the
counsel sought to withdraw the
face of the motion is controlling.
1988). The Fourth District opined
initial brief he filed for Paige in order
See: Haag,Id. at 617 n. 3.
that it saw nothing in the recent
to seek leave to file a motion to
.It was' further opined that
correct sentencing error, pursuant to
amendment to the rule to. preclude a
rule 3.800(b)(2), in the trial court.
probationer from seeking relief under
whether a" prison official initials the
rule 3.850. Unfortunately, however,
The state filed an objection to the
date has .no. legal significance..
the probationer in this case was
Nothing in the rules requires prison
granting of such motion arguing that
officials to initial a motionts date.
appellant's "first brief" had already . found to be untimely in his filing. .
been served and, accordingly, the
Such a ~uiremeni"would .. run
counter to current case
See:
rule
3.800(b)(2)
remedy
is
Westley v. State, 30 Fla.L.Weekly
DI449 (Fla. 2d DCA 6/8/05)
foreclosed. It was further argued that
Haag, Id. at 617, where it was
the rule makes no provision for
reasoned that "the pro-se prisoner is
The issue involved in this
withdrawal of a party's brief if a
case was whether a date stamp on an
una~le t9 do anything but trust ~
envelope containing a prisoner's proprison officials... if they betray this
sentencing error is discovered after
trust. ..the prisoner is usually unable' .
se motion is controlling because the
service of that brief.
stamped date is initialed by a prison
to even prove who is at fault"
"
The First District, in
official.
agreeing with the state's argument,
Because of the above
William E. Westley's time
findings'
Westley's rule 3.850
noted the similarity of Paige's case to
limit to file a rule 3.850 motion
motion. was timely.
The lower
that of Proctor's but pointed out the
distinguishing
matter
involved
expired April 10, 2004." When he
court's order of denial was reversed
had filc;d that motion, it was noted by
between the two cases.
and the case remanded for
In Proctor, the public
the receiving lower court that a date
consideration of the motion's merits.
stamp on the face of Westley's
defender filed an Anders brief on
behalf of the appellant, where in
motion reflected April 10'.:\r2004.
However, the lower court also
Paige's case an initial brief arguing
noticed a date of April 13, 2004, was
reversal of the case had been filed.
Therefore,
the
First
District
stamped on the motion's envelope,
SERVICE"'
accompanied by the initials of a
distinguished Proctor on that basis
Com
put er - Ty pe wr ite r
prison official. .
and limited its holding to the facts in.
Consequently, the lower
Proctor, where counsel filed an
ALL KINDS OF TYPING
Anders brief and the pro-se appellant
court . reasoned that because the
seeks to file a motion to correct
stamped date on the face of the
Including but not limited to:
sentencing error prior to the filing of
motion did not .reflect a prison
legal Briefs. Newsletters, ArtIcles,
his or her own brief.
"official's initials, while the one on
Books, Manuscripts,
.
Paige's motion to withdraw
the envelope did, and Westley did
Text Documents, Database, Charts,
the initial brief was denied.
not pr~vide any documentation
Forms, Flyers,.Envelops, ETC...
reflecting otherwise,' the date
Black I Color Printing & Copying
McFadden v. State, 30 Fla.L.Weekly
accompanied by the initials of a
lh
D1415 (Fla. 4 DCA 6/8105)
prison official controlled. Westley's
~plZelel 'Qetsza for prj8on~r8
This case briefly pointed out
motion was denied as being untimely
that probation is a "sentence" within
and he appealed the decision.
FOR A FREE PRICE LIST AND
the meaning of Florida Rule of
On appeal it was pointed out
MORE INFORMATION CONTACT:
Criminal Procedure 3.850(b). See:
that a motion is deemed filed the
Lyell v. State, 872 So.2d 447 (Fla. 2d
moment an inmate places it in the
LET MY FINGERS
DCA 2004) and Fla.R.Crim.P.
hands of a prison official: See Haag
DO YOUR TYPING"
Sandra Z. Thomas
.
3.710(a) (providing ~t "[nlo
v. State, 591 So.2d 614, 617 (Fia.
sentence or sentences other than
1992). The date on the face. of the
PO Box 4178
probation shall be imposed•.. It).
motion deteniunes whether it was
Winter Park, FL 32793-4178
The Fourth District Court of
timely received by prison officials.
Phone: 407·579-5563
Appeals in this case opined that
Although not receding from Haag,
. 21"

"law. .

.

"

TYPING

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Florida Prison Legal Perspectives
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