r

FLORIDA PRISON LEGAL

ers ectives
VOLUME 12 ISSUI; 4 '

Ex-prisons' Chief and
Crony Face Prison
Time
for Corruption
by Bob and Teresa Bums Posey

•
Former .FDOC Secretary
James V. Crosby, Jr, and his i
right-hand man Allen Clark were
charged with accepting kickbacks
from a subcontractor ofthe state's
privatized prison canteen business
in July. Both pleaded guilty ~d
are facing up to 10 years in prison
and a $250,000 fine;
JACKSONVILLE-The fonner head
of the Florida Department pf
COJTeCtions (FDOC), James Crosby,
and his pro~g6, friend and former'
FDOC regional director, Allen Clark,
were charged July 5, 06, With jointly
accepting
over $135,000
in
kickbacks from a Gainesville
businessman in return. for a piece of
, the prison system's privatized'
-. commissary business.

ISSN# 1091·8094'

JULY/AUG 2006

and Clark had been fon:ed to resign
In return' for favorable
in August 2005.
consideration at sentencing and:
Gov. Jeb Bush who .had
dropping other unspecifi~ criminal
appointed Crosby in 2003 to run the
charges against them, Crosby, 54,
:state's huge prison system and who
and Clark, 40, agreed to,plead guilty
later asked him to resign, issued a
to the single charge of accepting
statement: "I am disappointed by
corrupt kickbacks. Clark appeared
this violation ofthe public's trust and
before a federal judge on July 6 and,
by the abuses committed by those in
entered' his guilty plea, Crosby did
leadership positions.
Our . work
the same on July 11. . Both also
requires the highest level of integrity.
agreed to cooperate with the FBI in a
An~ing less is ~nacceptable and
continuing investigation of others
undermines.the good work' done by
connected with the prison system. '
many capable and committed state
In addition to Crosby and
employees." But ·Bush, who Crosby
Clark, eight other current or former
had
campaigned for in both elections
FDOC employees were also indicted
to
become
governor, seems to have
by a statewide grand jury on July S
been blind to the fact that Crosby
on grand theft charges in~olving
was rotten all along.
stealing state property and/or
Bush ignored the fact that
iIIeg~lIy using prisoners to perform
Crosby had been the warden at
personal work for them.
Florida State Prison in t 999, when a
The charges filed on July S
gang of prison.' guards brutally
bringS the total to 2 t people who
have been prosecuted .on charges : murdered death roW prisoner Frank
Valdes for trying to stop the guards
related to corruption within the
from' beating other prisoners,. when
,Florida prison system!
In
he appointed him to take over the
anticipation'that charges were going
prison system.
When Crosby
to be brought against them, Crosby'
admitted
last
year
to
dining in New
was forced to resign as the
York,
with
executives'
seeking
deparbnent's Secretary in. February
privatiZed service prison contacts and

rosby to Face Federal Civil Trial
ON
THE
INSIDE

:

3

Mail-. Readers Respond
'
6
Institutional Transfers •.•...•.• ~"'..:...•.........•..••............•......•.....•...•9
ota.ble Case:s•.•••.•.••••.•;.•••••••••..••••••••••••••.•.....••••••.......••••... ~ ••.•12
Toast. ••To Our Health

:

;

18

Florida Prison Legal Penpec~ives

FLORIDA PRISON LEGAL PERSPECTIVES
1'.0, BOX 1511
CHRISTiv/AS, FI.OIW)!\ ;nOlJ
l'ublishill!l Divisioll of:
FLORIDA PRISONERS' LEGAL AID ORGANIZATION, INC.
1\ :'111 (") (3) NolI,plolil (Irgallizalillll,

FPLAO DIRECTORS
Teresa Bllrns-I'ose)'
noh Posey, eLA
David W, llaller, Esq:
LorL'n D. Rhoton, Esq.

FPLP STAFF
I'lIhlisll\:r
Editor

Research

Teresa Burns-Posey
Boh Posey
Sherri Johnson
Anthony SllIart

Florida I'risolh'rs' Legal Aid Orgallizali'lll, Ille., 1'.0, Box 1511.
Cllri,tll1a,_ I'l . .1::!7(J'). Illlhli"he; FJ.()/{\Il!\ I'IUSON J.ECii\l.
I'EltSI'ECTIVI':S (1'1'1.1') up 10 ,i~ lime.' a year. FI'L1' is a nllil-prolil
puhlil'alilln !ilCilsing Oil Ihe Florida pri,'on :lIlderimin;tI .in'li"e
S">lell". FI'L1' providl'.' a ,',lIide Jill' new" ililiH'lnalilln, alld
rl','''lll'l'e, al'fel'lillg pri""I,-rS. their lilillilk", li'i'·lIlls.,lovl'd' "Iles, alld
th" g,-neral pllhlie or Fillrida, 1{,-dul'lion "I' nime;illd rel'idi"i'IlI,
lIlairlll'lIalll'l' "I' 1;lIl1ily IiI'S, civil righl.'. illlprovillg' l·Olidilioll.' of
nlillilleillelll. pronwlillg skillL'd I'IIUrI al'ee,'>; li,r prisoner.,. alld
pnlllloling :lcl'''"ll1ahilily "I' pri.'on "fli,-ials :11\: :tli :is:;II"s FI'L1' is
,k:;iglled 10 :Il ,.I 1\';.,. 1'1'1..1"., nOIl-altllm..:.'· vllhin,,'e'r, starr Clnnll!
r""polld 10 reqlle.'ls fi,r ki:"J :"lvil'e, Dlle I" Ihe 1',,111111': IIrl1l"il'III:,1 i,
rc','ei""d alld V"hlll,,-er _<'aIY li,ll;lalioll'. all 1'0IT~"pol1(klll'e 111:11 is
ren:iwd ClIlllot h<: I\:sponded I", hut "II: l1Iail \\'ill: r""ei,'e illdividual
all<:nlioll. I',Tllli.'.'ioli is <:r:llllet! 10 reprilll ulakrial,appcarillg ill FI'L1'
111:11 dol'S 11111 imli":lle it is copyrightL'd prm'iddl 111lI1 1'1'L1' and allY
illdi":lkd an' hoI' aI',' idL'llli lil'll ill the reprilll alld a eupy 01' IIII'
pllhlil'alioll ill wllich Ihe makri;tI i., pllhli,h"11 is prol'i,kd 10 Ih,'
1'1'1.1' pllhli,'h,'r. This pllhliL'alioll is 1101 Illl'alll 10' h"a snhslillil': IiII'
II'[:a I or olher proti:,'sional a,ll·il'e. The malerial' ill FI'L1' sholl III 1I0t
he rdied nl"1l1 ;IS authorilalil'" alltl 11I:'y ,~,I( nJlllilin surtiei""1
illhll'lilalioll 10 deal wilh a kg;tI prohklll. 1'1'1.1' i;; antoillalieally S,,"1
10 al/ lI1elllhl'r" or FI'J.I\U, Ille. a, a Illelilhn,hip h""l'/iL
'\'klllller"ltip dill'S I'm FI'I.AO, Inc.. "P"I~'I,; ye:lrly aIII I :Ire S \I) IiII'
pri,'<II'ers. $15 'i.r 1:llIlil)' IIl\.'JIlber":lJId ollJ,'r pril'ale illllil'illllaJ,;. $,10
Ji,r :tllume)". :,,"I SI,OI,'r a",ell,i"", libr.lri,·", allll iil,'litllli"n".,

2.1

hobnobbing with lobbyists at
concerts and ball games, Gov. Bush
had no problem with it When
investigators ,discovered a steroid
trafficking and distribution ring
operated by prisanguards and
employee-on-employee assaults, a
phantom employee hired as a ringer
for a prison employee softball team,
81ld theft' of state' property by
employees during Crosby's tenure as
top dog, Bush had little to say. Even
after investigators took state property
from Crosby's home last Fall, Bush
called him "8 good person, a good
, leader" and told him "don't let the
'blanks' get you down.'" Court
records now show that within months
of Gov. Bush appointing him as
prisons' Secretary, Crosby had
started'taking kickbacks.
Federal court documents say
Crosby and Clark hateheda deal with
Keefe Commissary Network, a St.
Louis company hired in 2003 by
Crosby to run the prison canteen
system, to. subcontract some of the
business to a GainesvilJe .busiQess
man. The court documents do not
name the Gainesville man, but prison
officials identified the subcontractor
as Edward L. Dugger, who set up
American Institutional Services just
to get the subcontract. FBI and state
officials raided the Gainesville
offices, of AIS on June 7 taking
records and the company was banned
from state prisons, the day after the
raid' took place.
Dugger is a
longtime friend ofCrosby. '
According
to
cOurt
•
documents, the deal was worked out
in the summer of 2004 at a
Suwannee River retreat where
Crosby and Clark met with Dugger
an Keefe officials to persuade Keefe
t~ give Dugger a subcontract to
operate canteens at prison visiting
parks.
Once the deal was set up,
Clark began receiving monthly
payments from Dugger and delivered
half to Crosby, according to federal
prosecutors. 'The kickback payments
grew from $1,000 a month to about
$12,000 a month between November

Florida Prison.Legal Perspectives
2004 and February 2006 and totaled
more than $135,000.
Following
Clark's resignation from the prison
system in August 2005, after a
scandal involving Clark reportedly
assaulting a former FDOC employee
at a party, Crosby told Clark to keep
Crosby's. share of the kickbacks
because federal officials were
investigating the deal, say court
records.
After entering their guilty
pleas, both Crosby and Clark
remained free on bond until they are
sentenced, which is expected within
90 days of their pleas. The two face.
up to 10 years in federal prison and a
$250,000 fine.
Crosby and Clark's downfall
could have political implications for
state Senator Rod Smith, D-Alachua,
a candidate for governQr. When
Crosby was appointed FDOC
secretary in 2003, Smith (who was
the state prosecutor in 1999 who
many feel intentionally botched the
trial of the FSP prison guards who
killed Frank Valdes, leading to an
acquittal), said "it's a dream come
true." For Smith, who later ran for
and was elected as state senator for
the heavily prison-dominated North
Central Florida area and is now one
of two democrats running for
governor this year, it may have
turned into a "nightmare."
Smith is a longtime friend of
both Crosby and Edward Dugger, the
subcontractor who apparently was
paying the kickbacks to Crosby and
Clark. Smith admits that Dugger is a
close friend who has helped him
raise campaign money in every
political race he has entered. When
it was discovered that Dugger and his
company AIS had made donations to
Smith's gubernatorial run after the
FBI raid on AIS offiCes in June,
Smith quickly returned the money. It
was also discovered that AIS was
funneling money to a political
campaign group set up by an Orlando
businessman to campaign for Smith.
That
group,
Floridians
for
Responsible government, was also

shut down after the FBI raid. (See:
FPLP, Vol. 12, Iss. 3)
From appearances, it seems
that the scam was set up to bilk
money out of prisoners' families who
visit prisoners and purchased the
high priced food and drinks from the
AIS visiting park canteens so
everyone got a piece of the action.
Keefe got a profit off the low quality,
high priced sales to prisoners'
families, AIS arid Dugger got a cut of
the sales, Crosby and Clark got their
kickbacks, and part of the money
was gambled on a political campaign
that was expected to reap future
benefits to everyone involved.
. The current and former
FDOC employees who were also
indicted on July 5 by the statewide
grand jury for grand theft are:
.
•
•
•
•
•
•
•
•

Richard A. Frye Jr., 37,
former· corrections colonel.
Paul L. Miller, 33, former
corrections guard.
Theodore J. Foray, 46,
former corrections sergeant.
Bryan K. Griffis, 36, former
corrections sergeant.
Christopher P. Taylor, 34,
current corrections sergeant.
Bobbie D. Ruise, 41, current
corrections lieutenant.
Stephen R. Parker, 32,
current corrections guard.
Lamar E. Griffis, 49, fornier
corrections sergeant, charged
with accepting unlawful
compensation.

The
three
"current"
employees were fired on the same
day the indictments were returned.
James McDonough, who was
appointed by Gov. Bush to take over
running the FDOC in February when
Crosby was ousted (the "interim"
was removed from his title as FDOC
Secretary in July), commenting on
the recent charges said,. "Did rot
enter into the system? Yes. Are we
purging it out?
Yes.
Are· we
ashamed of what they did? Yes."
Since taking over as Secretary,
McDonough, a former Army colonel,

40, FDOC employees have been
fired, demoted or been forced to
resign.
[Sources:
St. Petersburg Times,
7/6/06, 717/06; Gainesville sUn,
717/06; Tampa Tribune, 7/8/06] •

Ex-FDOC Secretary
Crosby
to Face Federal Civil
Trial in Prisoner
Murder
Case

I

n 1999 James V. Crosby, Jr., was
the warden at Florida State Prison.
While he was the warden there a
gang of prison guards, under the
guise of needing to force death row
prisoner Frank Valdes to leave his
cell, beat Valdes to death.
An
autopsy report' following Valdes'
death concluded that he had suffered
l!- massive physical beating, while the
involved guards claimed that Valdes
killed himself by repeatedly throwing
himself off his bunk onto the floor.
The guards were later acquitted of
killing Valdes at a trial' held in the
small town near the prison where
almost the entire economy is
dependant on the surrounding
prisons.
Although
the
murder
occurred while Crosby was warden
and supposedly responsible. for the
"care and custody'" of all prisoners at
FSP, he was never held responsible
for the murder having occurred while
he was suppose to be in charge.
Instead, almost immediately after
Valdes was killed, Crosby was
promoted to. being director over onefourth of the state's prisons. And
less than four years after Valdes was
murdered, Crosby was appointed by
Gov. Jeb Bush to 'be the head of the
entire prison system. Crosby never
paid any penalty for the murder
happening under his watch, in fact, to
all appearances he was rewarded.
That may be about to change.
3

I

Florida Prison Legal Penpectives

•

4

In 2001 Frank Valdes'
father, Mario Valdes, filed a federal
lawsuit against Crosby and other FSP
employees alleging that they violated
the
Eighth
and
Fourteenth
Amendment rights of his son by
subjecting him to an excessive and
unjustified use of force, which led to
his death while he was incarcerated
at FSP.
According to the allegations
in the suit, while Crosby was warden
of FSP, Frank Valdes was a death
row prisoner housed on X-Wing at
the prison, where prisoners with the
most serious disciplinary problems
were assigned. Valdes had been sent
to death row,.at FSP after being
convicted of killing a prison guard
during a botched attempt to help a
prisoner escape from a, prison
transport van. On July 17, 1999,Valdes died after suffering extensive
beating wounds all over his body.
In an amended complaint
filed in the lawsuit, it was alleged
. that prison guards beat Valdes to
death, and that Crosby knew about
the general propensity for violence
against prisoners by guards at FSP,
especially by certain prison guards,
some of whom were involved in
beating Valdes to death, but that
Crosby was deliberately indifferent
to the risk of abuse.
In the district court, Crosby
moved for summary judgment,
claiming that he was entitled to
qualified imrilUnity.
The district
court denied Crosby's motion and he
appealed.
The Eleventh Circuit
Court of Appeals has now issued a
decision affirming the lower court's
denial of qualified immunity and
held that more than adequate
evidence exists for the case to go to
trial where Crosby's deliberate
indifference and liability becomes a
question for a jury to decide.
According to the evidence against
Crosby, discussed in the appeal
court;s May 31, 2006, opinion,
Crosby maybe in more ,serious
trouble when the case goes to trial.
Qualified immunity gives
protecti~n to' government officials

I

prisoners., McAndrews testified that
sued in their individual capacities so
Crosby refused to meet' with him to
long as their conduct violates no
discuss those problem offlcers~ some
established constitutional rights of
of whom were later involved in
which a reasonable person would
beating Frank Valdes,
have known.
However, if the
McAndrew also testified that
conduct violates federal law that was
instead of listening to his advice
clearly established at the time of the
incident, then qualified immunity is
about some of abusive guards, after
Crosby took over he promoted some
not available to protect the official.
of them to high positions of
The appeal court noted that
authority, transferred a deputy
government officials. can be held
liable for subordinates' excessive use
McAndrew had
warden that
specifically prought in to, help quell
of force against prisoners in violation
of the
Eighth
Amendment's
prisoner abuse, and brou~t in other
prohibition against cruel and unusual
guards from other prisoris who had
punishment when the supervisor
documented histories ..of . aousi,ng
,prisoners, . including one ,who
either personally participates in the
"trained" other guards how toa~use
constitutional violation, or when the
official knows there is a history of
prisoners and get away with it."
abuse and does nothing to stop it, or
Further, McAnd,rCw testified
when the official's custom or policy
that it was the policy willie ~e. was
results in deliberate indifference to
warden that all use of foree and celt
extractions qf prisoners by' 'gUards
the abuse, The appeal court agreed
were requi~d to be videotaped 'to
with the district court that there was
help reduce excessive use of force.
insufficient evidence that Crosby
personally participated in or directed
But McAndrew testified. that when
Crosby took over 'the prison he
others to beat Valdes, but found there
was more than sufficient evidence
stopped the videotaping.. The appeal
that Crosby knew or should have
court noted that from that it might be
known that guards were abusing and
inferred that Crosby "sent a message
beating prisoners at FSP and did little
to corrections officers that' the
or.nothing to stop it.
administration at FSP was going 'to
In its opinion, the appeal
permitfurther abuse of inmates,"
court first discussed the facts leading
A prison chaplin, Andrew
up to, during, and immediately after
MacRae, who worked at FSP
Frank Valdes' death and decided
between 1994 and August 1999,
that, based. on those facts (which are
testified that after Crosby became
detailed in the opinion), '~e have no
warden there was a marked
di~culty ruling that Mario Valdes
difference in the culture'at FSP, that
haS sufficiently states a claim that
.Crosby had a more "hands off'
guards at FSP committed a. approach, permitting the "good old
constitutional violation." The court
boys", network of guards to mistreat
then turned to the issue of whether
prisoners. MacRae also testify that
Crosby could be held liable as a
after Crosby became warden, tbetCt
supervisor.
were. instances where MacRae was
The appeal. court noted that
prevented from. seeing· prisoners
Crosby's immediate predecessor as
following uses of force.
warden at FSP, Ron McAndrew, had
Evidence was also provided
testified extensively against Crosby.
that Crosby had a practice of
McAndrew testified that when
allowing his secretary,. who had no
Crosby succeeded him as FSP
law enforcement background,' to
warden he repeatedly tried to warn
handle and respond to prisoners'
Crosby about certain guards at the
complaints about .use of force and
prison who he believed were abusing
guards' use of force incident reports.
prisoners and who needed to be kept
Crosby never read the complaints or
out of areas where they could harm
reports. McAndrew testified that he

Florida Prison Legal Perspectives
had warned Crosby about that
secretary and that he had reasons to
believe that same secretary was
obstructing
prisoner
abuse
investigations.
Included in the numerous
complaints and injury reports sent to
Crosby between Dec. 1998 and July
1999 (Valdes was killed July 17,
1999), but that were handled by his
secretary, was a request from
prisoner ,~eburt Connor on June 16,
1999, informing Crosby that Connor .
had been told by a guard that Frank
Valdes was going to' be kilied.
Connor also relayed that he had
witnessed four guards handcuff and
shackle Valdes, then kick him and
hold a wet towel over his mouth and
nose while holding' him' down.
Numerous other complaints from
prisoners .alleging that guards had
threatened to kill them or who had
abused them were filed during that
period.
The appeal court held that all
that evidence taken together is
sufficient to overcome Crosby's
claim .of qualify immunity and to
allow a jury to decide whether
Crosby had establishe<l customs and
policies that resulted in deliberate
indifference
to
constitutional
violations and whether Crosby failed
to take reasonable measures to
correct the alleged violations. The
appeal court pointed out that it was
well established by law by 1999 that
prison wardens could be held liable
for failing to take reasonable steps to'
curb prisoner abuse.
The appeal court affirmed
that district court's denial of
'qualified immunity to Crosby, which
will allow the case to now go to trial.

- Parole Project ~
Donations ,Needed

.,

The FPLAO Parole Proj!=,ct continues to work
to change the existing parole system and Parole
Commission in Florida so that it actually works
the way it should to give all parole-eligible
prisoner~ a fair, unbiased, and objective
opportunity to make parole. The last two issues of
FPLP explained what is being done by t~e Project
to force change to happen. The Project however
is limited in what it can do by the ~mount of
support it receives.' Donations have been
requested from parole-eligibl~ prisoners to help
fund the 'p~oject. ':-s prevIously explained, if every
parole-ehglble pnsorier, approximately 5,200 of
them left, will donate just $5 a year to the Parole
Project, there will be a substantial war chest' for
the Project to work from anq to keep contin\Jous
pressure on the Parole Commission and
legislators to abolish the current system in favor
of one that works.
So far, a few hundred dollars in donations
have been received, which certainly helps and is
much appreciated, but more is needed. If you
can't donate $5 at one time,' donate what you can
as you can. If you can donat~ more than $5, to
help make up for those who have nothing, then
please do so. Every penny donated to the Parole
Project W!II go towards working to make parole
more available to parole-eligible prisoners. Your
donations are needed today. Send them to:'

Florida Prisoners' Legal Aid Org., Inc.
Attn: Parole Project
P.O. Box 1511 ..
Christmas, FL 32709-1511

Valdes 11. Crosby, Giebeig, el

aI., 19 Fla.L.Weekly Fed C612 (11 111
. eir. 5131106) •

Is

Florida Prison L~gal Penpectives

Dear FPLP: I wanted to write and let you know I'm being released to a halfway house and will not be able to
receive FPLP. I want to thank youfor all you and those.involved do for the prisoners locked in the DOC. I am
committed to getting involved in every way I can on prison reform. Believe me when I say after 30 years I'm .
. going to do something to change things,ifI can. In any case; thank you and every o~e for all you do to try and
help the ones with out champion or protector. DaVid D. CCI
.
FPLP: I have recently had the privilege to read one of your newsletters. It was quite informative and has drawn
my attention to a new vie~ of DOC. JR SRCI
.. ..
DearFPLP: Greetings! I just want to commend you all for the newsletter as it was very instrumental in, helping. ,
me' overturn my conviction which I was sentenced to life for. I recently plead to a lesser included (2nd murder)
and got a 20 year sentence. rll now be home with my children in 7 yrs. Loren Rhoten an<lPost Conviction
Corner is an asset to those of us fighting the Florida Ju~icial systems. I'll still subscribe to your mag/newsletter.
'
It is a necessity for Florida chain gang life style,plus I want to be a suppqrter for the cause. RC LCI
Dear Staffof FPLP: I have been receiving the FPLP for S years now. Your publication has been a real blessing ,
to me; the teason I am writing you is to thank you for all you have done, and are doing for us behind the fences.
I know it had to be from your fighting the FDOC on the phone prices that made them' bring them down to a
reasonable price for our families to be able to accept our calls. It is so very important to keep in touch with
others on the outside. I would 'like to humbly extend my gratitude and appreciation for a great job you all are
doing to help ~s fight a corrupt system that cares nothing about any of us. WK ACI
.
•
Dear FPLP: I just finished reading the newest FPLP and I am very sick ofheart on the Parole Commission
.receiving another budget. I feel the Parole Commission is fighting to keep "Job Securlty~' nothing more, by
keeping us old timers in with 2S to 3S year's in prison. I feel 90% or better should be given at least one chance,
ifwe mess up lock the door forever. But this is a far.ce and inhuman to keep us locked up until we are too old to
work or to be any good to anyone. How can the Senate and Governor not see the Parole Commission for what it
is? I want to thank the FPLAO Parole Project team. Robert E
Dear FPLP: I would like to point out a very important point in your magazine. ¥ou should have an "old con"
corner in your magazine, offering issues involving pre-l 983 help, such as gain-time forfeitures due to technical
parole violations, parole issues and some form ofhelp (case numbers) of other prisoners from that "barbaric"
era, who have bad similar problems dealing with the courts on these issues. I can respect that 8S% ofthe Florida
prisoners are guideline sentences, but we were around and subscribing to the "birth" ofthe Florida Prison Legal
Perspectives ~d deserve to read something in your magazine that might help us! Old Con BJ NRCI
Dear FPLP: Greetings I would like to acknowledge the help your publication has be.en to us through the years.
FPLP has been instrumental in making us aware and keeping us informed of the actions taken by DOC and the
courts. By your faithful and honest presentations of the facts and issues involved, we have come to respect roles
and policies of institutions and the courts. Your articles have often been alarming, but true. Thank youfor your
dedication, courage, arid vigilance. MB BCI

6

Florida Prison Legal Penpeetives
FPLP: I've been a part of FPLP for a very long time and wish to thank you for all the work and news that you.
have provided me with through out the years. I'm starting my 20th calendar year and the news of what's going on
in the system is vital to me and you're the only one that provides it like it is...with out the sugar coating. So
siDcere thanks to all. of you there for ajob that's well done. JH ZCI
,Dear FPLP: I just got my Legal Perspective yesterday in the mail and was outraged to see that the FloIjda
Parole Commission did not get the ax. I have followed this since before last year. working with my Senator
from this area aswell as my House of Rep. I saw the initial bill 5017 where it did in fact abolish the Parole
Board and then the amendment, but we thought that the amendment was an additiooto the bill not to take away
part or all ofthe bill. So here we sit another year. lam so sick ofthis I could spit nickels and we would all be
rich, b~ I know l have to continue to fight for him as well as others. asc Lehigh Acres '
FPLP: Today a friend of mine received a necklace that she'll never have to worry about losing. Her throat Was
cut from ear to ear. by another inmate.,If she lives.... each time she looks into the mirror. the nec~ace around
her throat will remind her ofjust another part of her REHABILITATION that went wrong. IroniCally..., my
!friend knew something bad was going t'o happen to her. the threats had been coming all week and her days were
cons~ with trying to get help. She had asked several officers to place her in Protective Custody just earlier
in the morning. The Colonel, S. Snell, had told her to "shut up" and go back to her dormitory. There were 25
task members' here, appointed by Governor Bush to investigate BCl's wrongdoings. I guess the White Shirts
didn'~ want any drama, and G~d forbid, the Colonel and her cohorts certainly didn't need an inmate to announce
that shewas'ii1 fear ofher life; afterall."Custody, and Care, and Control is the DOC's motto. The incident
happened under 1he pavilion, approximately 20 feet in front ofth~ Colonel's office and the control room. Not
only waS my friend's throat slashed. but her attacker began to brutally kick her in her head and ribs. Where were
all the white shirts? Some said trying to convince the Task Unit that Broward CI was, a fine establishment.
Others said
Colonel had all her officers shaking some poor soul down for colored pencils and extra shorts.
Sti110th~rs said she had her officers once again in the maintenance building looking for hidden coke-colas.
Whatever the reason, the fact remaining that Broward's Security Staffobviously were not practici~g Custody,
Care. 8.Iid Control under the pavilion today. Approximately 75 inmates were left unattended. As I write about
my frieJid,~y ~ger over Security's priorities threatens to consume me. Our Justice system within corrections
has becomC? jaded; our safety has taken a backseat to contraband. An anonymous request, or tiP. regardit\g
alleg~ contraband, whethedt involves extra clothes. hobby craft items. etc... warrants a full scale search.
involving the Colonel and her, cobra te,am. but a sincere request for protection is denied. As I watched the
helicopter 'air lift my friend to the hospital. I prayed for her to live. as I sitwriting this tonigh~ I'm praying that
our Almighty God. imparts wisdom to Governor Bush's task unit who are here investigating BCI so that the
truth 1s clearly revealed. SJ Bel ;
,

the

This

To ,FPLP:
letter iS'in regards to the $5 donation that was requested in the article "FPLAO Parole Project
Will Continue,Your Help Is Needed~' so I am having a 'donation made in my name regardless if it ever helps me
persOnally in my own mandatory sentence. I am unable to, do mo~ than this. but what I lack in finances , I can
niake up for in my brains to help you to get your message out to hUJ;ldreds,of ladies here. Thank you for keeping
the good fight up for all· ofus. KN LCI

.' !.etten sent to FPLP may be used in this section. All letters are subject to editing for length and, content. Oniy initials will be used to
identify senders and their location. Letters are welcome from all FPLP members. Address letters to: Editor,'FPLP, P.O. Box 1511,
C~8S, FL 3 2 7 0 9 . '

7

Florida Prison Legal,Perspective8

-US SUPREME
COURTOkays Pennsylvania
Prison Policy
Banning Newspapers,
Magazines and
Photograp~s From
M~st Violent,
Disruptive Prisoners

I

8

n a 6 to 2 decision, the U.S.
Supreme Court upheld a policy
enacted by Pennsylvania prison
officials that bans the state's most
dangerous and ~calcitrant prisoners
from having newspapers, magazines
or photographs. The Court held that
such a ban does not violate prisoners'
First Amendment free speech rights.
. Pennsylvania houses its 40
most violent and disruptive prisoners
in a Long Term Segregation Unit
(LTSU). Prisoners placed in the
LTSU begin in Level 2, which has
'the most severe restrictions, but
eventually they may graduate to
Levell,. which offers a few more
privileges.
While on Level 2
prisoners cannot make phone calls,
except in an emergency, can have
only one visitor a month (an
immediate family member), and are
not allowed access to newspapers,
magazines, or photographs.
In 200 I, Ronald Banks, then
a prisoner confined to LTSU Level 2,
filed'a federal lawsuit against Jeffrey
Beard, the Secretary of the
Pennsylvania
Department . of
Corrections, claiming that the Level
2 policy of denying prisoners access'
to newspapers, magazines, and
photographs bears no reasonable
relation to any legitimate penological
objective and consequently violates
First Amendment free speech rights.
In the District Court, the PA
Secretary filed an answer. The Court
then certified as a class all shnilarly
situated Level 2 prisoners, arid
assigned to case to a Magistrate for
Idiscovery.

I

Banks (who was represented
pointed out, courts must give
by counsel throughout the case) . "substantial deference to the
deposed a deputy superintendent at
professional judgment of prison
the prison and both parties
administrators."
Under Turner,
'introd~ced various prison policy
reStrictive 'prison regulations are
manuals and related documents into
aUowable, if they are "reasonably
the record. The Secretary then filed
related to legitimate penological
a motion for summary judgment and
interests." Wjthin that framework.
a statement of material facts not in
the Court had, little difficulty in
dispute, to which was attached the
fmding that the Pennsylvania
deputy superinterident's deposition.
restrictions are constitutional.
, Instead of fili!1g an opposing
,In the District Court the case
response to the summary judgment
was decided for the Secretary on his
motion, Banks, filed a cross-motion
motion ,for summary judgment,
for summary judgment. However,
which went unopposed by' Banks.
neither that cross-motion nor any
The Secretary's motion was based
other filing by Banks sought to place
primarily on the undisputed facts
any significant facts in dispute.
statement and the affidavit of the
Instead, Banks claimed that the
deputy superintendent, Dickson. The
undisputed facts, includiqg the 'first justification given by the
deposi~ion, entitled him to summary
Secretary for the Policy-the need to
judgment.
motivate better behavior on the part
Based on the record,. the 'of difficult prisoners-satisfies
¥agistrate recommended that the . Turner's requirements, the high
District Court grant the Secretary's,
Court found. the statement and
summary judgment motion and deny
affidavit set forth' ~, "valid, rational
Banks' cross-motion. The District
connection" between the Policy and
Court followed the recommendation,
"legitimate penological interests,1t
and Banks appealed.
according to the Court.
'
On appeal the Third Circuit
Dickson's .affidavit' noted
Court of Appeals reversed the
that prison' officials are limited in
District Court's granting of summary
what they can and cannot deny to
judgment to the Secretary, holding
Level 2 prisoners, who have already
that ihe prison regulation "cannot be
been deprived of most privileges, and
supported as a matter of ,law by the
that officials believe that prohibiting
record in this case." Banks v. Beard,
the items at issue are legitimate
399 F.3d 134 (3 1ll Cir. 2005). The
incentives, to encourage the prisoners
Secretary then sought review by the
to improve their behavior. The
Supreme Court, which granted,
undisputed facts statement added that
review and reversed the Third
the Policy enCourages progress and
Circuit's decision aJidremanded for
prevents backsliding (to Level 2
further proceedings with a fairly
status) by Level 1 prisoners. The
lengthy opinion.
statements pointed to evidence that
The high Court relied on the
the regulations work.
The
standards set out in two. prior cases,
deprivation of virtually the last
Turner v. Safley, 482 U.S. 78 (1978),
privilege left to a prisoner which
and Overton v. Bazzetta, 539 U.S.
serves as an, incentive. to' improve
126 (2003), to examine the Beard v.
behavior hasla logical connection,
Banks case. In Turner, the Court
wrote the Court. And that, added to
held that while imprisonment does
the deference courts must show to
not automatically deprive 11 prisoner ,prison
officials'
professional
of constitutional protections, the
judgment,
provided
sufficient
Constitution sometimes permits
support for finding thllt the Policy is
greater restriction of such rights in a
allowable and constitutional.
prison than would be allowed
Although summary judgment
elsewhere. In Overton, the Court
rules had given Banks an opportunity

Florida Prison Legal Penpectives
to have opposed the undisputed factS
statement and affidavit, he didn't do
so.
Instead, he let them stand
unopposed and filed a crosslmotion
for summary judgment, arguing that
the Policy fell of its. own weight.
However, neither the cases that he
cited nor the statistics he noted,.
intended to show the Policy doesn't
work, supported his argument,
according to the Court. The Third
Circuit erred by placing too high an
evidentiary burden on the Secretary
and gave too little deference to the
prison officials' judgment, the Court
held, but claimed that such deference
does not make it impossible for
prisoners challenging prison policies
to ever sucCeed.. Prisoners may, in
some circumstances, be able to
marshal substantial evidence, for
example through depositions, that a
policy is Dot reasonable, or that there
is a genuine issue of material fact in
dispute requiring a trial, noted the
Court.
. Justice Breyer delivered the
opinion for the Court. in which
Justices Roberts, Kennedy and
Souter joined. Justice Thomas wrote
a Concurring opinion, in which
Justice Scalia joined. And Justice
Stevens gave a dissenting opinion, in
which Justice Ginsburg joined.
Justice Alito took no part in the
decision as he had been involved at a
lower level in the case before coming
to the Supreme Court.
The Third Circuit's decision
was rev~rsed and the case remanded
for further proceedings.

BeanJ v. Banks, _

S.Ct.

19 Fla.L.Weekly Fed. S402
(6128/06).•

--J

-SUPREME
COURTOpens Door to New
Death
Penalty Challenges
. tw d th
I2 2006,m
n J une,
0 ea
. penalty cases, the Supreme
COurt opened 'the door to' new

O

challenges to states' lethal injection
methods and held that a prisoner
offering DNA evidence that ~
prove his innocence should get a new
hearing.
The latter case was the more
divisive among the Court's justices.
Decided 5-3 over a dissent. by Chief
Justice Roberts it was the Court's
first ruling involving DNA testing.
The ruling focused narrowly' on
Tennessee prisoner Paul House's
case. Under the ruling, House, who
was convicted of the 1985 murder of
a neighbor, will be permitted to go
before a U.S. judge to assert that his
liial was' constitutionally flawed.
Based on new DNA evidence and
witness testimony House, who lower
courts had barred because he had
exhausted his regular appeals, will be
allowed to argue that the new
evidence casts suspicion on the
victim's husband. If the jury had
been aware of that evidence, the high
Court noted, it's likely they would
not have found House guiltY beyond
a reasonable doubt. Justices Roberts,
Scalia and Thomas dissented to the
maiority ruling. which was penned
:.I

by Justice Kennedy.
In the former case, involving
Florida death row prisoner Clarence
Hill, the Court unanimously voted to
allow e..risonen who have exhausted
~eir regular a~peals to invoke a civil
rights law. 42 U.S.C. § 1983. to
.aiailenge the drugs and meth.B!is
states use for lethal injectionsJ That
meiliO<l of execution, used by almost
all of the 38 states that allow capital
punishment. has been a recent target
in
lawsuits
alleging
it
is
unconstitutional "cruel and unusual
punishment"
Hill, who was convicted of
the 1983 shooting death of a
Pensacola police officer, asserts that
the three-drug combination that
Florida uses to execute could cause
needless pain.
Hill had filed

constitutjonalitY. of his sentence...
Which could not be brou t in a civil
ra ts ac Ion. The Supreme Court
:
disa
The high Court did not
address the merits of Hill's claims
against the drug combination, but
said allowing his claims to be heard
as Ii civil rights action was
r~rmissible.. The Court reversed the
appeal
court's
decision
and
remanded the case for further
proceedings.
For more info on these cases
see FPLP,Vol. 12, Iss. I, pgs. 3-4,
and Vol. 12, Iss. 2, pg. 8.•

Institutional Transfers
by Glenn Smith
Many prisoners in Florida's
prison system find themselves
(apparently) arbitrarily transferred to
the opposite end of the state from
family and friends, making visits
practically impossible.
While existing case law and
Florida Department of Correction's
(fDOC) rhetoric APpear to claim that
~ FOOt may transfer a prisoner to
8!!X. institution, for any reason, at !!!D'
~-~-:-:---"";""":"';""-'--""':""""~';';':";""---:::'".
~ime..there appears to be support for
a mandatnus cause of actiRn tbat
of the
would re i the Secre

-=:~O~C::---:t""o""""":~;';;";;"~~=--';;':-";;""

'tution closest to hIS pace Jli
residence. or county of
&):::in=m::r.itm=e=nt'.- - - - - - - - ; . . . . WithOut reference to any
FDOC rule, classification officers
routinely inform prisoners that they
must be at least one year free of
i

~rmiment

disciplinary action before they will
be considered for a transfer (with
additional various ranges of time at
the current institution). , Family
medical hardship transfers being the
only noted exception.
However,
those unwritten practices cannot

a

override the Secretary's legal duty.
Exhaustion of the FDOC
,federal civil rights lawsuit t o '
- -challenge the drugs and method. The
ad!!1inis,trative i!ieyanceJ!..rocedure~
fOiJOwln a denial
re uesLf9L
Il lb Circuit Court of Appeals 68cI
'if"'WU ~_a.!!!! e.!.~!oser to f!m!!x.!~d..lrUm~!,
~enu@ HI~js cnau:nfte, S&yIUB!'ffie'
is n~~~ be!ore f!,!ing a .eetitign
an Improper c a enge to
C?
wrat of man~s in the circYit

or-a

rc;r

FIorldll PrIso" Leglll Perspectives Volume. 12 Issue 4
July/August 2006 Pages 9 aDd 10

9

f~~!:i~! P..[~~o,n J!.£g~~gsp~~ ~
~

The following suggested
Memorandum of Law sets out the
basis of the position that should be
taken in the grievance process and in
support of the mandamus position, if
it is necessary to go that far. (The
author of this article was transferred
shortly after filing his grievance
ap~1 to Tallahassee, using this
position.)
Memorandum of Law

Application of the reasohing
of the Court in Florida Caucus of
Black Legislators v. Crosby, 877
So.2d 861 (Fla. 1SI DCA 2004) to the
facts of this case compels the
conclusion that a mandamus cause of
action lies for transfer of [petitioner]
to
Correctional .Institution
against the Secretary ofCorrections.
In that case the Court, citing
§ 20.315(3), Florida Statues,
emphasized that ·the [Secretary of
Corrections]:
"[S]hall ensure that the programs and
services of the department are
administered in accordance with
state and federal laws, rules,
regulations,
with
established
programs, and consistent with
legislative intent."
877 So.2d § 864 (emphasis added by
court).
Florida Statutes show:
944.611 Legislative Intent. - The
legislature finds and declares that:
(1) It is desirable that each inmate be
confined iii· and released from an
institution or facility as close to the
inmate's permanent residence or
county ofcommitment as possible...
See also, legislative intent
set forth in § 944.8031, Florida
Statutes.
In this case,
Correctional Institution is the FDOC
institution closest to [Petitioner's]
place of permanent residence [or
county of commitment, as the case
may be].
The combination of
10

I

mandatory language· anu CI~fy
stated legislative intent appe~ to
establish a clear legal right to have
Secretary
assure that
[Petitioner] is confined at _ _
Correctional Institution during his [or
her] incarceration.
Cf. Florida
Caucus of Black Legislators, 877
So.2d § 863.
Gel)erally, an "extraordinary
writ of mandamus may not be used
to establish the existence of an
enforceable right, but rather to
enforce a right already and certainly
established at law."
Sancho v.
Joanos, 715 So.2d 382 (Fla. 111 DCA
1998). However, "[t]he fact that we
may need to examine and interpret
the statute in order to determine there
is such a right [for the petitioner]
does not make the right any more or
less 'clear...' Schmidt v. Crusoe, 878
So.2d 361, 363 n.2 (Fla. 2003).
There also appears to be an
additional cause of action in regard
to Rule 33-601.210(1)(a), Florida
Administrative Code, which states:
(1)(a) An inmate shall be assigned to
a facility that can provide appropriate
security and supervision, that can
meet the health needs of the inmate
as identified by the department's
'health services staff, and to the
extent possible can meet the inmate's
need for programs and is near the
location of the inmate's family.
(emphasis added)
It is well established that
"[a]n agency must comply with its
own rules." Kearse v. Dept. of
Health and Rehabilitative Services,
474 So.2d 819 (Fla. lSI DCA 1985);
Gadsden State Bank v. Lewis, 348
So.2d 343 (Fla. 1SI DCA 1977). See
also, Buffa v. Singletary, 652 So.2d
885, 886 (Fla. lSI DCA 1995),
receded from on other grounds,
Singletary v. Jones, 681 So.2d 837
(Fla. ISI DCA 1996) (in re, FDOC
rule gaintime awards provision);
Smith v. FDOC, 30 Fla.L.Weekly
D2096 (Fla. III DCA 9/2/05) (''the
appellant is' entitled to mandamus

. Florida Prison Legal Perspectives Volume. 12 Issue 4
July/August 2006 Pages 9 and 10

relief c~mpemng that appellee to
follow its own rules...").
For those prisoners who
were committed in a county far away
from their family, the above .rule
appears to be authority mandating
that the FDOC transfer them to an
institution close to family. .
[Note: Glenn Smith is a Florida
prisoner and activist who in addition.
to prevailing in the above-cited Smith
v. FDOC case, also prevailed in the
recent case finding that the FDOC
never had statutory authority to
charge or impose liens on prisoners
for the cost of legal photocopies.
Smith v. FDOC, 920 So.2d 638 (Fla.
III DCA 2005), cert. den., FDOC v.
Smith 923 So.2d 1162 (Fla. 2006). ed] •

Microchip Implants
Rejected For Now
by Richard Geffken
n May 31, 2006, Wisconsin's
Governor Jim Doyle signed a
O
law which makes it a crime to
require anyone be implanted with a
microchip.
As liberals cheered,
many Republicans vowed the day
will come when everyone sentenced
for a crime or suspected of unwanted
political activity will receive a
VeriChip human microchip implant
The VeriChip is a Radio·
Frequency Identification (RFID)
device in a glass capsule which can
be easily injected into the flesh of
criminals and other subversives. The
tags are read by invisible radio waves
even through clothing to number,
identify, and locate people. An exfelon in a pawn shop might be
arrested for being near guns.
Subversives can be traced to
meetings, making it possible to
identify more political dissidents.
Whore houses, dope dealers, and
prolonged drinking at a bar can all be
detected for immediate police action.
Satellite tracking can reveal every
person someone tagged spoke to for
further questioning. These can then
be warned the person is dangerous

Florida Prison Legal Perspectiyes
an immigrant's time is up, their
and the risks involved in associating
with them.
.
entire family can be rounded up.
Corporations have fueled a
Naturally, one the public
War on Crime since the. Reagan
accepts its use for these purposes;
Administration.
They not only
~ID devices can be introduced to
receive contracts to construct new
any workplace.
prisons and to staff them, they profit
The Wisconsin law sets back
Republican plans, but it is believed
from new products like the infamous'
black box. The ALEC, lobby has
,only temporarily. In Florida, for
been instrumental in getting new· example, the implants are being
laws legislated which create new
widely s.uggested for every sex
crimes, and provide longer sentences
offender and anyone with a history of
gang related activity. "Liberals" are
for everything. The result has vastly
increased the prison population for
so unpopular in many places there is
'little they can do to stop the spread of
profit Over 2.3 million Americ8l)s
RFID devices. •
are now behind bars, 25% of the
world's prison population.
Ways of increasing the
FDOC Proposes to
number imprisoned are developed at
Reduce
think tanks.
The world's most
famous is Rand Corporations facility
Prisoner Canteen
in ~anta Monica, California. ',A
Purchases
spokesman for Rand, Robert D.
Sprecht recently explained the joint
and Service Charges on
goal of the corporate alliance with
Inmate Accounts
the Republican Party, "Under any
conditions anywhere, whatever you
he Florida Departm~nt of
are doing, there is some ordinance
.
.Corrections
is, proposing to
under which you can be booked."
reduce
the
amount
that prisoners can
. VeriChip Corporation has
spend
each
week
in the prison
not done as well as other ALEC .
canteens
from
$100
to $65, in
corporations. They began by trying
addition
to
lowering
the inmate
to sell RFID chips to the Pentagon to
account
processing
fee
from $ I .00
replace use of military dog tags.
.
each
week
to
one
percent
of the total
Locating wounded soldiers and
weekly
canteen
purchases
(maximum
POWs was part of its sales strategy.
$0.65)
and
eliminate
the
$0.50
The military believed it might have
charge for special withdrawals from
an adverse affect on recruiting.
the inmate account. US armed forces
Using it to' tag medical
veterans will not be charged any fees
patients produced some profit, and
under the proposal.
.
credit card companies like the idea to
The·
FDOC's
proposal
came
ensure receiving payments when they
less than a month after Florida
are due. Requiring an implant as a
Prisoners'
Legal Aid Organization
condition for granting a loan. was one
Chairwoman
Teresa Burns Posey and
of the factors involved in the
approximately
20 other family
Wisconsin law.
members
met
in
Orlando with staff
VeriChip has also suggested
from
the
Legislature's
Office of
uses for controlling. immigration.
Program
Policy
Analysis
and'
Guest workers can be registered,
Government
Accountability
have their backgrounds checked, and
(OPPAGA) in June 2006 to discuss
the VeriChip "used for enforcement.
how
prisoners'
,families
are
purposes at the employer level," says
negatively' ,impacted 'by FDOC
VeriChip· CEO Scott, Silverman.
policies. The burdens placed on
Limiting coffee breaks is one of the
families
by FDOC raising the
nicer uses. Workers will provide a
amount
of
money prisoners can
full day's work for their pay. When
spend in lhe' canteens, so the

T

canteens can increase prices by 10%
every six months, on top of the
inmate· account processing fees that
families have to send ~ore money to
prisoner!i to cover, were discussed at
the Orlando meeting. FPLAO also
presented evidence tethe OPPAGA
staff detailing the outrageous 60 to
76% markup that the FDOC places
on Access Catalog orders by
prisoners to purchase radios, shoes,
underwear, etc., which markup profit
the FDOC keeps as a "middleman"
in the sales.
The FDOC's proposal to
reduce the weekly spending limit and
prpce!ising fees was made in two
Notices
of
Proposed
Rule
Development indicating the intent to
amend Rules 33-203.101 and 33203.2(}1, Florida Administrative
Code. Those first rule development
notices in the two-notice ,rulemaking
process were published and posted at
all correctional facilities on July 21,
2006. The second and final· notice
w~ published a"d posted on August
18, 2006. Barring any delays, the
proposals should become effective
about the middle of September.
Many other issues were
discussed at the Orlando meeting
with OPPAGA, ·including. problems
with family visitation. It is hoped
more positive changes will develop
as we all continue to work together
on these issues.
In other news, the contract. to
operate the prison canteens is being
rebid. The new cOntract, which will
go into effect in October, will require
a 20% reduction in prices currently
being charged, and priCes can only
be raised once a year and must be
comparable to street prices. AdvertIse ID FPU'
c1iCnl1 ar CUItllmcn

TUFt _

etIrlluP IIlMnisIn&

ill FPLP. Far

IIIIva1IIcmcrit IIId r8Ie
wrIlio or cmaillO tho below:
.'
FPLP

illfomWioQ

AtIlI: Advertlslll8
152,12 l!aIt CoIcm1oJ Dr•.
OrIuIdo, FL 32826-5134

or

III

Florida Prison Legal Penpeetives

The following are summaries ofrecent state andfederal cases that may be useful to or have a significant impact on Florida p,:isoners.

Readers should always read the full opinion as published in the Florida Law Wr.. k/y (Flo. I- Weekly); Florida Law Weekly Federal
(Flo. L Weekly Federai); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F.3d),· or the
federal Supplement 2d(F.S~pp. ~d), .si~~e these summaries arefor general information only.
1

FLORIDA SUPREME COURT

n

'!:

•

,

In'Re: Standard Jury Instructions in .
Criminal Cases (Fla. 5125106)
The
Supreme
Court
COmmittee on Standard Jury
Id$tructions in Criminal Cases (the
Committee) petitioned to amend the
FlOrida Standard Jury Instructions in
Criminal Cases.
;
The
proposed
change
i~olved Florida Standard Jury
lJ1struetions '3.6(f), "Justifiable Use
Qf 'Deadly Force," and 3.6(g),
"Justifiable Use Of Non-deadly
Force." The changes that were
proposed are as follows.
.
With regard to Standard Jury
In\truction 3-.6(f); "Justifiable Use of
D~ly . ForCe,'~'" the Committee
recommen4ed: ~ . (1:) substituting the
words "deadly- force" for "force
likely to cause~death or great bodily
harm"; in' the, various parts of the
instruction; (2) adding an instruction
defining "deadly force" for "force
likely to.causedeath or great bodily
harm";.OJ.c~m~i!\ing subparts 3 and
4 into a new subpart 3 in th~portion
of the instruction dealing with claims
of.self-defense predicated on section
7&'2.02, Florida Statues (2005); (4)
expandirig the" explanation of when
the first part of the" "aggressor"
ex!=eption should be given;
(5) deleting those subparts of the
instruction concerning the necessity
to avoid the use of deadly force, the
.necessity to retreat, the, defense of
the home, and the defense of the
home against co-occupant; (6)
adding new subpartS concerning the
lack of duty to retreat and the
presumption' 'of fear when the
defendant -was in the' 'dwelling,
resiiJence, occupied vehiCle, or place
12.

I

where he had a ri~t to be; (7) adding
COURTS
OF
DISTRICT
of
"dwelling,"
definitions
APPEAL '
."residence," and "vehicle"; (8)
amendi!1g the subpart addressing
Saniana v. Stale, 31 Pla.L.Weekly
prior threats to make it'mesh with the
D1309 (Fla. 3d DCA 5/10/06)
absence of a duty to retreat; (9)
.
Ronnie Steven Santana's
adding the current year of revision to
case presented an issue where a trial
the comment section; and ( I0)
court· enhanced Santana's sentence
deleting the second sentence in the
for his count one offense by inferring
comment, which refers to the
a finding of the requisite to enhance
instruction for def~nse of the home
from Santana's count two offense
against a co-occupant, which
without a jury's finding of' such
instruction was deleted.
requisite
for
count
one's
With regard to Standard Jury . enhancement.
Instruction'3.6(g), "Justifiable Use of
On appeal~ the Third District
Non-deadly Force," the Committee
Court of Appeal pointed out that the
recommended: (I) substituting the
Florida Supreme Court has found it
words "non-deadly force" for '~force
to be improper to infer a requisite
not likely to cause death orgreat
finding for enhancement . of one
bodily harm" in tile various parts of
count from the conviction on a
the instruction; (2) adding an
second count of the indiqtment. See:
instruction defining "non-deadly
State 'V. McKinnon, 540 So.2d III
force" as "force not likely to cause
(Fla. 1989).
death or great bodily harm"; (3)
Santana had been 'charged in
substituting the words "another
,count one of attempted first degree
person" for "other person" in the "In
murder by discharging a firearm, arid
Defense of Person" instruction; (4)
in count two of unlawfully shooting
adding the words "to be" to the
into an occupied vehicle. After trial
instruction for "In Defense of
by jury. the verdict form showed he
Person"; (5) adding new subparts on
was found guilty in count one of
the lack ofduty to retreat when the
aggravated battery, as a lesser
defendant is in a dwelling, residence, , included offense, with a firearm. In
vehicle, or place where he has a right
count two, Santana was found guilty
to be;' (6) adding definitions of the
of the crime charged.
'
words "dwelling," "residence," and'
The jury had not found that
'vehicle"; and (7) adding the current
the weapon was discharged in count
year of revision to the comment.
on~ts verdict, only possession of a
After consideration of the
firearm: In section 775.087(2)(a)2.,
Committee's proposed changes, the
Florida Statutes (1999), it provides
Florida Supreme Court aut~orized
three levels of mandatory minimum
the pub_lication and use of the revised
sentence depending on the fact-based
instructions without any changes
of
"possession,"
distinctions
from the Commi.ttee's recommended
"discharge,", or "is a result of
changes. Those changes were made
discharge, death or great bodily harm
effective the day the opinion was ' was inflicted.It Those distinctions
final, 5125/06.
have a consequence of receiving

Flori~a ~risoD

Legal Penpectivea

David W. Collins, Attorney at Law
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Florida Prison Legal Penpectives
either a ten, twenty, or 25 year to
life mandatory minimum sentence. .
The rule in Florida is that
before a trial court caJ1 enhance a
,sentence or apply a mandatory
minimum sentence, the jury must
expressly detennine the requisite
necessary " for
statutory fact
application of a mandatory minimum
" sentence. See: State v. Overfelt, 457
So.2d.l385 (Fla. 1984).
Because "the ,jury
in
Santana's case did not make a
. finding that the weapon was
"discharged" in count one's verdict,
it was error for the trial court to infer
the requisite from count two's
offense to enhance the sentence to a
twenty year mandatory minimum for
count one.
As a result of the concluded
opinion, conflict was certified with
the Fourth District's opinion in Amos
v. State, 833 So.2d 841 (Fla. 4111 DCA
2002) (where it applied enhancement
for "discharge" of a weapon was
proper because referenCe. to the
information supported inference that
CQuntQne'sconviction r:!'sted solely
on the. findings of the use of a
firearm in count two.)
Santana;s sentence was
reversed and. the case remanded for·
re-sentencing on count one to a ten
year mandatory minimum sentence.
[Note: Also see: Wallace. v. State,"
31 Fla.L.Weekly 01438 (FI~. 4th
DCA 5124/06), where onnppeal it
was shown that ajury is required to
find actual, ,possession to justify
imposition
of
the...mandatory
minimum sentence, citing from
Overfelt, 457 So.2d .l385 (Fla.
1984).]

that the use of the firearm in
Jefferson's case was the essential
element of the crime. Consequently,
it was error for the lower court to
impose the fireann enhancement
statute. ,
Section 775.087(1), Florida
Statutes (200 I),
the firearm
enhancement statue, provides for
enhancement to a higher degree of
felony except for "a felony in which
the use of a weapon or firearm is an
essential element."
Accordingly,
Jefferson's
case was reversed and remanded for
resentencing.

State v. Grandstaff, 31 Fla.L.Weekly
01336 (Fla. 4th DCA 5/10106)
In David, Grandstaff's case
the State appealed the lower court's
judgment of granting Grandstaff's
Rule 3.800(c) motion after expiration
of the sixty-day period.
Grandstaff had filed a timely
motion" to mitigate his sentence.
Hearing of the motion was delayed
due to confusion within the lower
court's administratio,a. It was not
known which judge was going to
hear
Grandstaff's
case
and
consequently, by the time the motion
was heard and ruled on, the sixty-day
time limitation had already past.
The appellate court opined "
that the absence of a judge to act on "
the motion promptly was not the
fault of Grandstaff.
In fact,
Grandstaff diligently sought to gain a
hearing prior to the expiration of the
time period. Where the lower court
itself is at fault for failing to timely
consider motions before 'it, strict
adherence to procedural niceties
leads to an inequitable result. ,-1:2find that jurisdiction was ultimately
lost simply because no judge was
available does not componwtth th~
CijmIii6le.mtent ~orida Rule"
of Criminal Procedure. Such a
finding would ~eal an "'injUstice:i9
lhOse who properly comely with~"
terms of the Rules, but are thwarted

Jefferson v. State, 31 FlaL.Weekly
D1327 (Fla. 4th DCA 5/10106)
"Quincy Jefferson's case
presented an issue where a trial court
applied the firearm enhancement
statue to Jefferson's" sentence" for
shooting a deadly missile. (
]1-----obt8inrng-reHer-"
It was' pointed out by the
appellate court that although some
circumstances .~ ih~r control.
cases hold to the contrary, it opined , '~Cffided -oPinion of the.

-aue-to,

-14

I

'

appellate court was that the lower
court acted within the essential
requirements of the law in granting
Grandstaff's motion.
It was also found that the
issue presented was one of. great
public importance and would have a
great effect on the proper
administration of justice. Therefore,
a question was certified to 'the
''where
Florida Supreme court:
defendant timely files a motion, for
reduction or modification of sentence
pursuant to Florida Rule of Criminal
Procedure 3.800(c), but, through no
lack of diligence in obtaining a
hearing date. or no fault of his or her
own, the hearing does not take plaCe
until after the expiration of the sixtyday period as provided in the Rule, is
the Court divested of jurisdiction to
consider and rule upon the timely
filed motion?"
The lower court's granting
Grandstaff's motion was affirmed.

Trout v. State, 31 Fla.L.Weekly
01339 (Fla. 41h DCA 5/10106)
The issue presented to the
appellate ~urt in Louis Blaine
Trout's case prompted an opinion
that
gives
one
a
clearer
understanding of when a person is
entitled' to jail credit for time serVed"
in another county jail on pending
charges.
"
A defendant has been found
'to be entitled to Jail credit for time
spent in n county j:lil ~.'1heri he has
been arrest!i'd pursuant to a warrant
from another county~ See: Gathers
v. State, 838 So.2d 504 (Fla. 2003);
Daniels v. Stale, 491So.2d 543 (Fla.
1986); and Norman v. Slate, 900
So.2d 702 (Fla. 2d DCA '2005). The
Gethers court drew the distinction
between execution of an arrest
warrant and the issuance of a
detainer by..another county~ and
further held that absenl the execution
of an arrest warrant. a defendant
who is in jail in specific county
pursuant to an arrest on other charges
n~d lnot be given credit for time
served in that county on charges
from another county when only a
J

a

Florida Prison Legal Penpee~ives
detainer has been lodged against the
defendant.
Section 901.04, Florida
Statutes, 'provides for the direction
and execution of a warrant, in that "a
warrant shall be directed to all
sheriff's of the state. A warrant shall
be executed only by the sheriff' of the
county in which the arrest is
made.•• An arrest may be made on
any day and at any time of the day or
night."
Section 901.16, Florida
Statutes, provides for the method of
making an arrest with a warrant in
that "A peace officer making an
arrest by a warrant shall inform the
person to be arrested of the cause of
arrest and that a warrant has been
issued...The officer need not have
the warrant in his or her possession
at the time of the arrest but on
request of the person arrested shall
show it to the ~rson as soon as
practicable."
Both statutory sections show
that a warrant may be executed
merely by a peace officer informing
the person that a warrant had been
issued. This was the case with
Trout's arrest. He was informed of a
warrant for his arrest on a violation
of probation. Therefore, Trout was
entitled to jail credit from the time he
served in the county where he was
arrested for the violation of probation
from another county.
Because Trout's lower court
refused to grant the credit due to
reasons contrary to the appellate
court's opinion, Trout's case was
reversed with directions to the lower
court to credit Trout with the jail
time he spent in the other county. .
Green
v.
Commission,

Florida

Parole

31' Fla.L.Weekly
01461 (Fla. III DCA 5125/06)
Jammie Dwight Green had
filed a petition for writ of mandamus
in the lower court alleging that the
Florida Parole Commission failed to
consider his entire official inmate file
in making its decision to suspend his
presumptive parole release date.

Apparently,
when
the
commission responded to the lower
court's order to show cause, it failed
to include the complete inmate file
relevant to Green's allegation.
However, the lower court denied
Green's
petition
anyway.
Consequently, Green filed a petition
for writ of certiorari' in the First
District Court of Appeals.
Green argued in the appellate
court that it was eiTor for the trial
court to deny him relief when it
failed to review the portions of his'
file that were relevant and material as
to the Commission's cited reasons
.and the issues presented in the
petition for writ of mandamus,
pursuant to Willia"fS v. Fla. Parole
Commission, 625 So.2d 926 (Fla. III
DCA 1993)
The appellate court found
that the Commission had not
provided the entire inmate file, which
was relevant also to Green's initial
argument in the lower court.
Therefore, the lower court's order of
denial was found to be error and the
order was quashed. Green's petition
for writ of certiorari was granted and
the case was remanded with
directions for the Commission to
supplementits response to the writ of
mandamus in the lower court with all
relevant and material documents
from Green's complete' official
inmate file. Further; the lower court
was instructed to reconsider Green's
request for mandamus relief once the
Commission complied with its
directed order..
4

Vega v. Kilhefner, 31 Fla.t.Weekly
D1636 (Fla. lSI DCA 6/14/06)'
Prisoner Juan Vega appealed
a circuit court order dismissing his
petition for writ of mandamus based
on his allegedly failing to pay the
filing fee or submit indigency
information as required by a case
management order. The appeal court
noted that the record reflected that
Vega did attempt to comply with the
case management order before
dismissal, as conceded to by the
appellee, but that the lower court

may have overlooked that attempt.
Accordingly the appeal court
reversed the order dismissing Vega's
petition and remanded for further
proceedings with instructions to
allow Vega to correct any
deficiencies in his filings.
Further, the appeal court
addressed another issue raised .by
Vega in his appeal: the fact that the
trial court found him indigent for
purposes of the appeal, but then
directed that a [§ 57.085(2), F.S.]
lien be placed on his inlJlate account
to recover the appeal's filing fees and
costs. Because this issue involved
indigency for appellate purposes, the
appeal court elected to treat this
portion of Vega's appeal brief as a
"motion for review" pursuant to Rule
9.430, Fla.R.App.P. 'And because
Vega's underlying actjon must have
been
a
collateral
criminal
proceeding, to which the lien
provisions of § 57.085, F.S., do not
apply, the appeal court quashed the
imposed lien on the authority of
Wagner
v.
McDonough,
31
Fla.L.Weekly D1223 (Fla. lSI DCA
512/06).

[Editor's Note: Although Florida
prisoners are almost always required
to file any legal challenges to FDOC
or Parole commission actions in the
Second Judicial Circuit Court in
Tallahassee, most of the judges in
that Court do everything they can to
Those
discoumge such filings.
judges' latest deal seems to be
ignoring the Florida Supreme Courts'
.decision in Schmidt v. Crusoe, 878
So.2d 361 (Fla. 2003), which held
that the indigency provisions of §
57.085, F. S. (placing liens on inmate '
accounts,
requiring
six-month
account statements to be filed. etc.),
do not apply to any type collateral
criminal
proceeding.
Such
proceedings include mandamus
petitions
challenging'
prison
disciplinary action, gaintime issues,
parole issues, and any other issue
that affects the duration of a prison
sentence. In Schmidt the high Court
noted that § 57.081 not § 57.085,

IS

Florida Prison LegalPerspectives
indigency. provisions apply i"n
collateral, criminal' writ petition
cases. Iiowever, at the time of that
decision, ',§ 57.081 provided for,'
waiver offees and cost.. Last year §
57.01l WQS amended to" delete
"waiver" 'and substitute "deferral"
and.§ 57.082 was created to provide
a procedu~ for monthly. payments,
based on ability to pay, of court costs
and fC«?S for those persons found to
be indigent under§ 57.081.
:Since then many judges of
the Second Judicial Circuit Court,
and even the Clerk of that Court,
apparently' feeling that it· is not
practicable· to expect that prisoners
will voluntarily pay· monthly,
payments, under §§ 57.081 and
57.082, have taken to forcing
'prisone1'S who file collateral criminal
proceeding petitions to comply with
a hybrid mixture of §§ 57.081,
57.082
and
57.085,
F.S.
Specifically, they are threatening
prisoners with dismissal of their
petitions if they do not file § 57.085
six-month account ·statements,'and
then when prisoners do that the
judges are directing the FDOC to
place § 57.085 liens on their inmate'
accounts, instead of setting up a
payment plan under § 57.082.'
In that way prisoners, Ii~e
Juan Vega, above, are sidetracked
from tho merits of their· petitions to
having to challenge the ,improperly .
imposed, .indigency·. requirements,
causing delay, frustration, and waste
of taxpayers' money 'and court
resources. See, Cason v. Crosby,
892 So.2d 536 (Fla. 111 DCA 2005);
Thomas v. State, 904 So.2d 502 (Fla.
4th DCA 2005); Muhammad v,
Crosby, ,.30 Fla.L.Weekly D2552
(Fla. I I1 0CA 2005). See also, Cox
v. Crosby, 31.fla.L.Weekly D 310
(Fla. lit DCA 1126/06), rev. granted
sub nom.. McDonough v. Cox, 924
So.2d 809 (Fla. 2006) (unpublished
table. opinion); and following cases,
herein.]

16'/

Babji v. Department of Corrections,

31 Fla.L.Weekly D1699 (Fla. 1st
DCA 6/22/06)
.
, Prison
Johathan
Babji
(mistakenly) filed a motion pursuant
to Rule 9.430, Fla.R.App.P., seeking
review of the Second Jud. Cir.
Court's order denying him relief
from an order that found him to; be
indigent but placed a lien on his
inmate account to recover costs and
fees for his fil,ing a petition for writ
of mandamus in the circuit court
(presumably a collateral criminal
proceeding, see prior case and note
thereto, herein).
.
The appeal court noted that
Rule 9.430,only authorizes review of,
an order of a lower court concerning
a request to proceed as indigent in
appel/ate proceedings. Quixotically,
the appeal court therefore treated
B~bji's motion fOJ: review as a
certiorari petition, but then said that
remedy is inappropriate since Babji
can raise the indigency issue once a
final order is issued in his mandamus
case (which will leave. the improper
lien on his account just that much
longer).

[Editor's Note: No doubt before
having the lien placed on Babji's
.account the clerk or court made him
file a six-month acCount statement.
If he had refused' to file such
statement and immediately filed a
Petition for Writ of Prohibition to
stop the clerk or court from requiring
him to comply with § 57.085
provisions, which do not apply to
collateral criminal proceedings, and
which the clerk or court do not have
jurisdiction to require, then he could
have stopped the imposition of ~e
lien, before it was imposed.]

Flowers

v.
McDonough.
31.
Fla.L.Weekly 01808 (Fla. 1st DCA

7/3/06) .
Prisoner
Gary
Flowers
petitioned the appeal court to find
that the Second Jud. Cir. Court
from
the
essential
departed
requirements of law in denying his

petition for writ of mandamus and 'in
having a Iien,plaeed onnis inmate
.account for costs and fees of filitlg
:
.the mandamus petition;
. The appeal court heldthl\t
Flowers' argument challenging t~e,'
order ~enying the mandamus petiti~n
. was without merit, but found that
because the petition was a "collateral
. criminal .proceeding" pursuant to §
57.085(l0}, .Fla.Stat., that the lower
cOurt 'improperly imposed the Ii~n
(citing to Cox and Schmidt,supra).
Accordingly, the, appeal court
quashed the, lien order, and direct6',d
the. trial.:- court to direct the.
. reimbursement. of· any money,' that
had been.taken from Flowers' inmate
~ccount "to satisfy the improper lien
~rders."
:

McCaskill .v. McDonough,
31 Fla.L.Weekly 01811 (Fla.' 1"
DCA 7/3/06)
In this case the ~ppeal court
denied prisoner Obidiah MeCaski1l"~
petition for writ of· certiorari, but
found ,that. because the underlying
petition for writ of mandamus was a
"collateral, criminal. proceeding" the
appeal
court
remanded with
directions that the trial court remove
the [improperly imposed] lien from •
McCaskill's,inmate aecount or direct
the reimbur~ment of any funds tha!
had been taken to satisfy the lien
(Citing Cox, suprQ).- .

ADVERTISING Nance:

Florida Prison Legal Penpectives

LorenD. Rhoton

I
------------.----P~stconviction ,Attorney
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Email: lorenrhoton@rhotonpostconvictlon.com:
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Before you decide, ask us to ~nd you free written information about our qualifications.

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I 17

Florida Prison Legal Penpectives

P"

.

---==.)'

F

A Toast•.•
To Our Health
by Mark Osterback

or the past ten years, prisoners in Florida haven't had
any means of challenging environmental health
cond~t~ons in their Jiving areas.' During that time, health
condItions. at least in the Dept. of Corrections. (DOC),
were governed by American Correctional Association
standards, which ~ unenforceable in court. As such, we
had been at the mercy of our keepers in regard to said
conditions. That was the case until July 2006. According
to a letter from William Harrold at the Florida
Legislature's Joint Administrative Procedures Committee
(JAPC), who informed this author that based on the recent
voiding of Chapter IOD-7's repeal "the Department of'
H~.lt!t (DOH]. filed the necessary information with. the '.
DIVISIon of LIbrary and Information ServiceS. Chapter
100-7, F;A.C.,. ~ilI. be ~ublished in the supplement to tlie .
code, whIch wIll be available in August." That notice was
the culmination of considerable effort expended over the
past 10 years, authoritatively settled by Chief Judge
Kahn's scathing rebuke of the Dept. of Health's second
appeal. See, Fran~ois v. Osterback, 928 So.2d 396 (Fla. III
DCA 2006).
. .
.
N~w tha.t part of the struggle has concluded, the
questions arIse: But what is the significance? What to do
now? Here are the answers.
Chapter IOD-7, F.A.C., codifi~s in rules the intent of §
3~6.006, Florida Statutes, and regulates, among other
thm~, environmental health conditions in prisoner
housmg areas; e.g., the number of sanitary fixtures-tonum~er-of-prisoners in a dormitory, the:amount of spaces.
reqUired to be between bunks, ~e .washing and sanitation
of clothing and bedding. and the amount of required
airflow.
.
Many of us who had been imprisoned prior to the
[illegal and invalid} repeal in 1996 will recognize that
100-7's provisions weren't being followed in many cases
by the DOC then, so why would it be any different now? .
Two reasons: First, back .then, the rules' existence was
largely unknown but to a select few prisoners and of
those, fewer still acted on their kn·owledge. With' the
publication of this article, and the others preceding it in
FPLP, an entire new generation of prisoners has been
educated about IOD-7. Second, 'once made aware its
~port .b~mes self-evident, and hopefully ~ore
pnsoners will (or should) seek enforcement of its
provisions to prot~t their health where the DOC does not
do so. The new DOC Secretary, James McDonough,
seems committed to righting many of the numerous
wrongs which permeate the entire Department, and
making it respected. This means following the law.
Chapter IOD-7, F.A.C., had been repealed back in 1996
18 aj the' request of the DO~, which deceptively told the

Dept. of Health that chapter was "duplicative" of DOC
rules (that did not exist) on health issues. In the past the
DOC has always tried to avoid having to follow
inconvenient laws or resist for as long as possible, all the
while consciously delaying justice as long as possible
when challenged in the courts. Lately, however, there
have been major.shakeups in Tallahassee, one being the
departure of long-time General Counsel (DOC) Lou
Vargus. Already, ,it seems the DOC's attitude towards
litigation is ,shifting. Since the new Secretary believes in
"Honesty in all things," we should at least make an
attempt to hold him and the DOC to it. Especially where
our health is concerned.
.
Throughout the litigation to have 1OD·7 .revived, theDOH has also been less than honest and continues to
obfuscate and delay implementation of 100-7. Under the
Adminis~tive Procedures Act (APA), not only i$ the
DOH reqUired to publish the circuit court's order. voiding
the repeal in the Florida Administrative Weekly (See, §
120.S6(3)(b), Fla. Stat.), but it is also required to give
notice to the particular class of persons affected by IOD-7
(See, § 120.54(3)(c)3.) when charges are made thereto.
Neither of those statutory duties are being performed.
Recently a Motion for Supplemental Relief was filed
(pursuant to § 86.061, Fla. Stat.) in the circuit court as to
the former statute, and a Petition to Initiate Rulemaking .
(pursuant to§ 120.54(7), Fla. Stat.) was filed with the
DOH as to that latter statute.
Circuit Judge Rassmussen has yet to errter
order on
the Motion for Supplemental Relief, but DOH has already
deni~d. the rulemaking petition on perhaps the most
S~IOUS (but characteristic) reasoning imaginable. .
The petition sought adoptiQn of a rule similar in nature
to Rule 33-102.201(7) (~), F.A.C., which prescribes the
manner in which rulemaking notices of the DOC are to be
posted for prisoner viewing in DOC facilities. Eric
Grimm, the DOH's Bureau 'Chief of the Bureau of
. Community Environmental Health, denied the petition
claiming that under the APA, the DOH was unable to
adopt such a "rule of Procedure," that only. the
Administratiqn Commission c.ould. That. position is
patently false and blatant misinterpretation of § 120.54(5),
Fla. Stat•. Mr. Grimm's denial order has been brought to
the attentIon of the JAPe, which, in addition to having a
duty under § 120.545(1) (e) to review allstate ageiioies~
proposed rules or rule changes to ensure that affected
persons receive adequate rulemaking notice but that also
h~ authority to review the manner in whi~h the petition
~as denie~ by Mr. Grimm. What this will ultimately yield
IS uncerlam,as the JAPC has traditionally sided with
.agencies against individuals, and as a prisoner action;' even
less is expected.
' .
.
Another matter which must be addressed if 10D-7's
provisions are ever to be invoked for our protection, is to
. actually be able to view a copy of them. As it stands right
now none of the DOH's rules nor IOD-7 is available in

an

Florida Prison Legal Penpeetives
DOC law libraries. And since the DOH refuses to adopt a
rule to give us notice ofany future amendments to 100:-7,
we will remain ignorant of, such. However, ·there .is
another solution.
Any prisoner wishing to obtain a copy of 100-7,
F.A.C., should write to the man responsible for the subject
matter of that section of rules and whose office would be
responsible for enforcement, Eric Grimm. Send requests
for copies of 100-7, F.A.C., and any rule it might be
renumbered as, and explain your inability to obtain access
in the DOC law libraries, to:
Eric Grimm. Chief
Bureau ofCommunity Envir. Health
4052 Bald Cypress Way, BIN#AO
Tallahassee, FL 32399- J703

While Mr. Grimm has refused to adopt a rule whereby
prisoners would be given' notice of any future changes to
100-7, the APA also provides a solution to that. The APA
provides that any person who desires to receive notice of
any state agency's rulemaking activities only have to write
to the agency to get on a mailing list to receive, by mail,
all rulemaking no.tices of the agency. See, § 120.54(3) (a)
3., Fla. Stat., and Rule 28-103.001, F.A.C. You can get on
the DOH's rulemaking notice mailing list by writing to the
Secretary of the DOH, M. Rony Franc;ois, and requesting
to be placed on the list.
If enough prisoners make the above requests, they will
substantially burden the DOH and probably cause it to
adopt a rule to have notice of its rulemaking activities
related to 100-7 posted in ,all the institutions. That would
be in all prisoners' best interests.,
'
One benefit of a rule requiring posting, is that IOD.7
could not again be quietly and nefariously repeale~ as in
1996. Notice by posting would also give prisoners an
opportunity to provide input into any efforts of the DOH
to change 1OD.7 in the future. It is hoped that, should this
author's efforts to have a rule adopted to provide such
notice, be unsuccessful, that the number of requests to be
included on the DOH's rulemaking notice mailing list will
tip the scales of reason in our favor.
Consider this, if only I percent ofthe prison population
(which is approaching 90,000)request to be placed on the
DOH mailing list, that's 9,000 notices. Just paper,
envelopes and postage to mail all those notices would cost
thousands of dollars. Not that i would ever advocate
wastefulness simply for the sake of depriving DOH's
resources, but the expenditure. of such should cause
pragmatism to. trump the, DOH's pigheadedness and·.
reason may prevail under such conditions.
Once informed of the rule (and any attempts to change
it) prisoners should' begin to seek 'enforcement of its
provisions by the DOH.
'
Complaints concerning DOC violations of 100-7
should be made first to the director of the respective

County Health Unit in which the facility is located. Any
. move by DOH staff to delegate inspection or enforcement
duties to DOC officials, or refusal to inspect or enforce,
should be protested, in writing, and. challenged as well.
Again, Mr. Grimm, at the DOH Central Office, would be
the person to write concerning such local shenanigans to
circumvent 100-7, and the DOH's responsibilities thereto.
Should such an informal complaint (which can be in
simple letter format, keep a copy) not yield satisfactory
results, then mandamus relief should be sought in the local
circuit court in which the prison is located (not in Leon
County - by rule, the DOH could request transfer ofvenue
to where its central office is located in Leon Co., but
should not be encouraged to do so since enforcement is
sought locally, not in Leon Co.).
Mandamus can be sought immediately, after your
informal complaint is not adequately responded to or
followed' up on, as DOH does not have, to this author's
knowledge, any formal grievance procedure available to
prisoners to redress violations of 100-7. A petitioner
would seek DOH performance of its duties under the rule
and relief would be that DOC (or a 'private prison
company or detention center)' be coerced by DOH to
comply with the rules' provisions.
A more difficult question is whether the DOC has a
ministerial dLity to comply with 100-7 provisions. Perhaps
the most prudent course of action would be a joint action
against the DOH and DOC simultaneously, after DOC
grievance procedures and the informal complaint to DOH
have been exhausted. Either DOH has.a duty to coerce the
DOC to comply with 10D-~;. or the DOC (and private
prisons) has a duty to comply of its own accord.
So, what are we to dQ? Will this be another opportunity'
to improve our safety and condjtions squandered? If so,
then I would remind you that IOD-7's provisions act as a
check, against overcrowded dormitories, inadequate
ventilation, infectious diseases spreading unchecked, etc.
While there may be no way to guard against most
pathogens taking hold within ~ur ranks, IOD-7's
provisions exist (again) to prevent and/or minimize the
spread of same. That is why they are so very important
and warrant all prisoners' interest and efforts to ensure
they are enforced. _

Health J{uleS Are
Again in Effect
, Shortly after Mark Osterback wrote the above article the
Department of Health did have (former) Chapter 100-7
reinserted into the Florida .Administrative Code (p.A.C.)
renumbered, however, as Chapter 64E-26, F.A.C. Since the
moe does not have that chapter ofrules in the institutional law
libraries, and because of the rules' importance, FPLP staff did
obtain a copy ofthe revived, renumbered rules which are printed
in the following pages of this issue in their entirety. The
following rules,.as ofmid-August 2006, are. again. active and in
I effect. It will largely be up to prisOners to ensure that they are
followed and enforced. - Editor, Bob Posey.
,

, 19

Florida Prison ~egal Perspectives
r

I~
CHAPTER 64E-26 STATE AND LOCAL DETENTION FACILITIES

64E-26.001
64E-26.002
64E-26.003
64E-26.004
64E-26.oo5
64E-26.006
64E-26.oo7
64E-26.oo8
64E-26.009
,64E-26.010
64E-26.0II
64E-26.012
64E-26.013
64E-26.014
64E-26.015

General.
Definitions.
Water Supply.
Food Service.
Sanitary System, Facilities and FJXtures.
Garbage and Rubbish.
Housing.
Laundry and Dry Cleaning.
Bedding, Clothing and Personal Items.
Housekeeping.
'
Insect and Rodent Control.
Outdoor Areas.
Industries.
Plan Review.
Inspection ofState and Local Detention Facilities.

'.

Edlt#t1Jl Nl1tt:'Clttlptu IOD-7lRU retlUll1led by IRClIlDn O/IM FIm DIstrla COIII1 ofApptoh In FrarroUll OstulNtd.
64E-26.001 General.
Sanitary practices relating to construction, operation and maintenance ofState and Local Detention Facilities.
Specific Authorlty'3,/.006 FS.LDw /mplemented 38/.006(6) FS. HIs;ory-New //-18·76. Formerly /0D-7.0/.

64E-26.002 DeliDltions.
(I) Detention Facilities: A municipal, county or'state facility used for the incarceration ofprisoners or inmates charged with or
convicted of either a felony, misdemeanor, or a municipal offense. '
'
(2) Prisoner or Inmate: A person who is lawfully incarcerated in a detention facility.
(3) Cell: Housing space designed to accommodate one (I) or more inmates.,
.'
(4) Dormitory: Housing area designed to accommodate more than four (4) prisoners with common bathroom facilities.
(5) Department: The Department of Health and its representative county health departments.
(6) Secretary: The Secretary ofthe Department ofHealth and its representative county health departments.
Specific Authority 3381.006 FS.LDw Implemenled 38/.006(6) FS. HislDry-New //·/8·76. Formerly /0D-7.01.

64E-26.003 Water Supply.
'.
Water supplies shall be, adequate to serve the demands of the de~ention facility and should be from: an approved existing public
supply where possible. When an on-site water supply is developed, the system shall be constructed, operated, and maintained in
accordance with requirements of Chapters 62-550, 62-555, and 62-560, F.A.C., to insure that the water supply is of safe
bacteriological and chemical quality. Routine water samples shall be ~bmined to determine that the quality of the water does not
deteriorale.
Specific Authority 381.006 FS.lDw Implemented 38/.006(6) FS. His/ory-New / /./8-76. Formerly 10D-7.03.

64E-26.004 Food Service.
'Food suppUes must be obtained from approved sources and be prepared and served in approved facilities in a safe and sanitary manner
as prescribed by Chapter 64E·II , FA.C. If prepared food is catered from outside sources, these must comply with Chapter 64£-11,
F.A.C.
'
Speclji& Authority 381.006 FS.LDw /mplemellled38/.006(6) FS. History-New /1-/8·76, Formerly 10D-7.().I.

2. 0

I

64E-26.005 Sanitary System, Facilities aDd Fixtures.
.
(I) All sewage and liquid waste shall be disposed of into an approved public sewage, system, ifavailable.lfthe facility has
2,000 gallons or less flow per day, and public sewage is not available, the disposai system shall meet requirements stated in Chapter
64E-6, F.A.C. Ifgreater than 2,000 gallons flow per day, it shall meetrequirements ofChapters 62·601 and 62-600, F.A.C.
(2) All plumbing shall comply with.requirements stated in Florida Building Code,2004, Plumbing and the Florida Building
Code, Plumbing Supplement.
(3) Drinking water shall be acce~ible to all inmates. When drinking fountains are available, the jet ofthe fountain shall issue
from a nozzle ofnon·oxldizing impervious material set at an angle from the vertical. The nozzle and every other opening in the water
pipe or conductor leading to the nozzle shall be aboveihe edge ofthe bowl so that such nozzle or opening wiU nol be flooded in case a
drain from the bowl of the fountain becomes clogged. The end of the nozzle shall be protected by non-oxidizing guards to prevent

Florida Prison Legal Penpectives

persons using the fountain from coming in contact with the nozzle. Vertical or bubbler drinking fountains shall be replaced with
approved type water fountains or be discOMected. Inmates In areas where no approved drinldng fowtains are available shall be
provided with single service cups which shall be stonifand dispensed in a manner to prevent contamination. Common drinking cups
are prohibited.
(4) Plumbing fixtures such as toilets and lavatories shall be constructed of smooth, non-absorbent, easily cleanable material
and be kept in good repair. Penal or security type flXtures may be used if construction meets the above requirements. If
conventional toilets are installed, they shall be equipped with open fronJ seats.
(5) Mop sinks or curbed areas with floor drains equipped with hot and cold ruMing Willer shall be available In convenient
locations throughout the facility for the proper disposal of cleaning water and to facilitate cleaning.
(6) Showers shall have tempered ruMing water under pressure and shall be available for inmates to take showers at least twice
weekly (daily access to showers preferred). The hot water supply to the shower shall not exceed 120· F. to prevent scalding.
(7) In secure housing areas there shall be at least .one (I) lavatory and one (1) toilet In each cell. Donnltorles and multiple
OCA:upancy cells shall have at least one (I) toilet and one (I) lavatory for each eigh~ (8) Inmates or fraction thereof. One (1) showu
head with tempered water shall be provided for each sixteen (16) inmates or fraction thereof.
(8) All floor drains shall be kept clean and equipped with tamper proofdrain covers at all times. Ifself-primlng floor drains are
utilized, proper backflow devices shall be installed to prevent siphonage. All floor drain traps shall be kept wet to prevent sewer g8s
from entering the building.
(9) Plumbing fixtures shall be kept clean and sanitary at allUmes and shall be properly maintained.
Specific Authority 38/.006 FS. Law /mplemenled 38/.006(6) FS. History-New //·/8-76, Formerly /0D-7.0S.
64E-26.006 Garbage and Rubbish.
(1) All garbage, trash and rubbish from inmate residential areas shall be collected dally and taken to storage facilities. Garbage
shall be removed from storage facilities at least twice per week. Wet garbage shall be collected and stored In impervious. leak
proof, fly tight containers pending disposal. All contaIners, storage areas and surrounding premises shall be kept clean and free of
vennin.
(2) Ifpublic or contract garbage collection service is avail~ble, the detention facility shall subscribe to these services wiess the
volume malces on-site dIsposal feasible. If garbage and trash are disposed of on premises, the methodofdisposaI shall not create
sanitary.nuisance condItions and shall comply with Chapter 62-701, F.A.C.
SpecIfic Aidhoriry38/.006 FS. Law /mplemenled 38/.006(6) FS. History-New //·/8·76, Formerly /0D-7.06.
64E-26.007 HousIng.
(I) Floors, walls, ceilings, wIndows, doors and all appurtenances of the structure shall be of sound construction, properJy
maintaIned, easIly cleanable and shall be kept clean. Walls, ceilings. and area partitIons shall be of lIght c:olor.
(2) All areas of the detention facility other than closets or cabinets shall be well lIghted. Cell areas, donnltorles, toIlets and
dayrooms shall have light fixtures capable of provdlng at least twenty (20) foot candles of lIJumination to pennlt observation,
cleaning, maintenance and reading. Light fixtures shall be kept clean and maintaIned. .
(3) Sufficient space shall be provided in all livIng and sleeping quarters to satisfy sanItary needs ofall IndivIduals Incarcerated.
Every bed, cot or bunk shall have a clear space of at least twelve inches (12") from the floor. There shall be a clear celllng heIght of
not less thanthlrty·six Inches (36") above any mattress and there shall be a clear space of not less than twenty-seven Inches (2T)
between the top of the lower mattress and the bottom ofthe upper bunk ofa double deck facIlIty. Single beds, cots or bunks shall be
spaced not less than thirty inches (30") laterally or end to end and double-deck facilitIes shall be spaced not less than thlrt)'-5ix
Inches (36") laterally or end to end. Sleeping arrangements shall insure that a minImum distance ofsix feet (6') Is provided between
inmate heads.
(4) All housing facilitIes shall be kep free ofoffensIve odors with a.dequate ventilation.
, (a) If natural ventIlation Is utilized, the opened window area for ventilation purposes shall be equal to one-tenth (1/10) ofthe
floor space In the inmate residential area.
.
(b) When mechanical ventilation or cooling systems are employed, the system shall be kept clean and properly maIntained.
Intake air ducts shall be designed and Installed so that dust or filters can be readily removed. In Inmate ~Idence areas and
segregation cells with solid doors. mechanIcal ventilatIon systems shall provIde a minimum of ten (10) cubIc feet of fresh or
purified recycled air per minute for each inmate occupying the area.
(c) All toilet rooms shall be provided with direct openings to the outside or provided with mechanical ventilatIon to the outsIde.
(d) Adequate heating facilities shall be provIded to maIntain a minimum temperature of 60- F. at a poInt twenty Inches (20")
above the floor In inmate sleeping areas.
.
Specljic Authority 38/.006 FS. Law /mplemented 38/.006(6) FS. History-New //·/8·76, Formerly /0D-7.07.

21

Flor~da. Prison

Legal Penpectives

64E-26.008 Laundry and Dry Cleaning.
Where laundry facilities are provided, they shall be adequate to Insure an ample quantity ofclean clothing, bed linens and towels.
Laundry fa.:lllties shall be ofsound ~onstructlon and shall be kept clean and In good repair. Laundry lOOms shall be well lighted and
properly ventilated. Clothes dryClS and dry cleaning machines shall be vented to the exterior. Exposure to dry cleaning solvents
shall not exceed threshold limit values set by the American Conference of Governmental Hygienists. Iflaundry facilities are not
available, sheets and blankets shall be sent to commercial laundries.
Specific Alllhorily 381.006 FS. lAw Implemented 381.006(6) FS. History-New J1·18-76. Fonnerly 101).7.08.
64E-26.009 Bedding, Clothing and Penonalltems.
Beds and bedding shall be kept in good repair and cleaned and sanitized regularly. Used mattress and plllow.covers shall be
laundered or washed and sanitized before issued. Sheets and personal clothing shall be washed at least weekly and blankets washed
or dry c:h~aned at least quarterly. Sheets and blankets shall be stored In a clean, dry place between laundering and Issue. Inmates to
be held longer than twenty·four (24) hours should be issued clothing and personal comfort items, such as soap, towels, toothbrush
and toothpaste. RaZors and blades may be Issued on a controlled basis.
.
Specific AII/hQTlty 381.006FS. lAw Implemented381.006(6) FS. Hlitory-New J1.18·76, Formerly 10lJ.7.D9.

64E-26.010 Housekeeping.
Inmate residential areas shall be kept clean and sanitary at all times. Floors, walls, ceilings and bars shall be kept clean. Urinals,
showers, toilets and lavatories shall be cleaned daily. Mops, brooms and other cleaning equipment shall be stOred in well ventilated
areas. Mop sinks and otherjanitorial facilities shall be kept clean. Inmates shall not store perishable foods In their lockers or living
areas.
Specific AII/hority 381.006 FS.lAwlmplemented 381.006(6) FS. History-New 11·18-76, Formerly 101).7.10.

64E-26.01lInsect and Rodent Control.
Detention facilities shall be kept free of all insects and rodents. All outside openings shall be effectively sealed or screened to
prevent entry of insects or rodents. All pesticides used to control insects or rodents shall be applied in accordance with Instructions
and cautions on the registered product label. Persons applying restricted use pestlcid,es shall be certified by the Department of
Agriculture and Consumer Services. Facilities not having certified pest control operators shall utilize commercial licensed pest
control companies. .
Specific Authority 381.006 FS.lAw Implemented 381.006(6) FS. Hlstory-New 11·18·76, Fonnerly 101).7.012.

64£-26.012 Outdoor Areas.
Ifa facility as an outdoor exercise area, it shall be kept free of liner and trash and be well drained. Iftoilet and lavatory facilities are
provided, they shall be kept clean and maintained.
Spec(/ic Allthorlly381.006 FS.lAw Implemented 381.006(6) FS. History-New 11·18-76. Fonne;1y 101).7~011.

64E-26.013Industrles.
Industrial areas shall be kept clean. Noise levels shall not exceed an average of9OdBA on a time weighted average for an eight (8)
hour day as measured on the A scale of a sound level meter set at slow response, unless proper ear protection Is provided. Thirty
(30) foot candles ofillumination shall be provided at task levels. Adequate ventilation shall be provided to prevent exposure to dust
and toxic gases or fumes.
Specific Authority 381.006 FS.lAw Implemented 381.006(6) n, History-New 1/·18·76, Fonnerly 101).7.013.

64E-26.014 Plan Review.
.
"
Prior to any detention facility being built or extensively remodeled, the departinent shall review plans and make comments on
aspects affecting sanitary practices or conditions.
Specific Authority 381.006 FS. Lmv Implemented381.006(6) FS. History-New 11-18-76, Formerly 101).7.014.

64E-26.015Inspectlon orState aDd Local Detention Facilities.
.
The health authority shall inspect all stale and local detention facilities to determine sanitary practices and conditions as often as
necessary for enforcement of the provisions ofthis chapter.
Specific Authority 381.00~ FS. Lmv Implemented 381.006(6) FS. Hlstory-New 11·18-76. Fonnerly 101).7.01S. •

22

I

I

Florida Prison Legal Penpectives
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