FI;ORIDA PRISON LEGAL

ers ~ectives

VOLUME 14 ISSUE 4 '

ISSN# 1091-8094

-Florida Parole CommissionRacism, Cronyism and'
Discrimination
. Alleged by Former' Commission
Chairman
by Bob Posey
n the last issue of FP~P it was reported that racial
diversity, or rather, the lack th.ereof,. in the makeup of
the three-member Florida Parole Commission (FPC)
bad ,become an issue when in June ·Gov. Crist and his
Cabinet' were faced. with picking, a replacement for
Commissioner Fred Dunp~y, whose six-year term on the
FPC was scheduled,to expire at the end of June. Out of
mbre than SO applicants for the position, the Parole
Q~fications ~mmittee, a committee appointed by.the
C~blDet, submitted three people for consideration: Fred
Dunphy. to retain the position; Tina Hayes, current FDOC
Director of, Initiatives; and, term:limited State
Representative Curtis Richardsop (0-Tallahassee). Both
Hayes and Richardson are Black, while D!Jnphy and the
other two current FPC commissioners. Monica David and
.rena Pate, are White.
. •For several years now the commission, w~ose core job
IS (suppo~ to be) making parole decisions on Florida's
dwindling, mostly Black, .parole-eligible prisoners and
parolees; has been all White, That has created' criticism

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PAMIUIISADVOCATBS PKISONBIlS

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and calls 'for greater Ilcial diversity. Calls which have
largely.fallen on deaf ears. according to some.
Keeping it White
Although a decision was scheduled to .be made
.concerning the FPC opening on June lO,.the decision was
delayed until. mid-August. And then the governor and
Cabinet (who are all White), sitting as the Board of
Executive Clemency, voted unanimously to give Dunphy
a third six-year-term, in effect ~nsUring an all-White
parole commission for the next several years.
The Board of Executive Clemency consists of Gov.
Charlie ··Chaing'ang" Crist, Attorney General Bill
McCollum. Commissioner of Agriculture Charles
Brunson,. and Chief Financial Officer Alex Sink. Alex
Sink is a Democrat while the other three are Republicans.
In addition to voting to retain Dunphy as a parole
commissioner. the Board of Executive Clemency v.Dted 3~ to make .him Chairman of the commission. Sink was the
lone disse~ter !,n. that vote. Earlier in' the process she
wanted the board to reject all three of the finalists and
send it back to the Quaiifications Committee for a new
list,. but none of the other board members would second
that motion.
.
Current Commissioner Monica David, who had been
the Chairwoman, was reappointed to a second six-year
term in 2006, she now becomes Secretary of the FPC.
Vice Chairwoman Tena Pate was. appointed to the
commission in 2003 by former Gov. Jeb Bush, to fill the
vacancy created when former FPC C~airman Jimmie

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US· District Cl Tenninates Osterback Injunction
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FDOCPrison Guards Indicted
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ReadeI'S Respond...•.•.•.....••..•.•..•..•.••.•.•.............................•.....7
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Post Conviction Comer....•..•.......•.•....•....................... ~ ..........•9
News· In Brief ~~
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Florida Prison Legal Perspectives
"We were faced with selecting' an all-female
commission or an all-White comnUssion," said Alex Sink
The only Black male finalist, State Rep. Curtii
Richardson, had withdrawn his n!UDe by the time 'of thf
vote because be lacked the J8w enforcement background
that Crist and the Cabinet Wanted for the $92,S74-a-year
pOsition.- rJlatleft the decision d~wn to-a choice between
DunphY or Tma Hayes of the FDOC. No eXplanation was
given why the -name'of another, male applicant
advanced as afmalist once Richardson dropped out.
"The fact that· the people coming before the parole
. board, the majority of the population appealing are
African-American applicants theY should be judged. bya
jury of their peers." said Alex Sink. A sentiment more
idealistic thantealistic. The concept of "judgment by
peers", has. no role in :the· parole p~ as practiced in
Florida considering the contrasts ,between parole
commissioners (privUeged Whites' earning almost
S100.00o-a·year and' who' have' a vested interest in not
paroling the dwindling. _number -of parole-eligible
prisoner:s. ofwhicbonly a Iittle:over,S.OOO remain) and the
parole-eligible population (who are, in the majority.
prisonerS who have been in prison for decades now. who
have little or nothing. who have, been branded as pariahs
for past crimes. who are disenftanchised.. and who are
dispropo~onately Black).
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Issues Deeper.Than Divenlty
,Florida law mandates both gender and raCial diversity
in, the makeup of the FPC: However. by allowing the
Parole commi,ssion to remain all White. thecommeqts of
Muslima Lewis. an attorney with the ACLU and ~irector
'. of the Florida Right$ ,Restoration Coalition, appear to be
on point. "CPO AI~xSink made an' effort. It fell on deaf
ears. 'Itcshbws the issue of diversity is not apriority." said
Lewis.
"They had a sensitivity,to gender diversity and that is
important too.' But racial diversity and' its importance in
the criminal justice 'systeJn:and especially re-ently (to
society) is, paramount. especially as it disproportionately
impacts minoiities. You can find the right eandidates.
There are plenty 'of talented. qualified people of ~can
descent." Le~s commented on the Clemency Board's
decision to retain· a White commiSSion,
Florida State Conferences of NAACP Branches
President Adora Obi Nwsze noted. "We' are very
,disappointed wi~ tfte Cabinet's decision. We would have
hoped they would have seen fitto diversify this body."
, Yet. whUe some only saw the issue as one of diversity.
at least one person wi~ extensive, personal experien" and
knowledge of the parole. commission feels thittlie real
issues go much deeper.
, '''The more devastating dilemma for tfJe gGvemor and
Cabinet is not diverSity. but th~ ncism. cronyism and
. discriminatory-practices that h,ave been allowed to exist on
the commission, with the. knowledge of the ,governor's
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Florida Prison Legal Penpectiws '
office, though not the governor himsel(" wrote a fOrnier
parole commissioner'in an op-ed letter recently printed ,in '
the Tallahassee Democrat.
Charles J. Scri"en continued to explain his uniquely
infonned perspective in his letter. "
'
"The - situation started during ,the Jeb 'Bush
ad~inistration, dUring which the most recent appointment'
was made to the commission~ There was ali' able black
Department of Corrections administrator amoDg the
finalists. Mr: Bush perSuaded the Cabinet, which included
Mr. Crist,: who was then attorney general. to support his
nominee, Teria Pate (who was .the ,state's top' victim
adv0C4te 'at the time). Only fonnerInsurance
Commissioner' Tom Gallagher' dissented, 'and the.
commission:became all white again," $criven wrote.
"I1l 1974~ th~n-Gov. Reubin Askew and the Legislature
expanded' the Parole Commission. from five to. se,ven
members, and act designed to make it possible for a black
and a woman to be added to the commission at the time. It
was a foregone conclusion that some equity was needed in
gender and race. I was the first black appointed to the
commi~ion, 'and Anabel P. Mitchell; a DOC prison
superintendent, was the first woman:"
'.
"
"I 'won't tJyto describeth~ lack. o~ equity or
opportunities for women or blacks at 'that' time except
there were no black hearing examiners or black executive'
secretaries anywhere to be found in the agency. DUring
_ my 12 years on the commission, some fairness in hi(ing
'practices was· accomplished, .especiallY' when I w.as
chairman (1976-78), and with .the support, of the entire
·commission. The,presenee of equity in gender and ~ is
still essential for' the appearance of faime~;becausethe
balance is always tilted in favor of people who look like
and think like you. Still, the issue around~e current
appointment'is not diversity. but racism and cronyis?, !hat
I believe has increased in recent years on the comnUSSlon,
which lives and grows when left to itsel(" wrote Scriven,
who then.continued. "
,
,,
"I have written Gov. Crist, copying Attorney G,eneral
Bill McCollum and CFO Alex Sink, regarding what I
believe has been an, unfair and biase4 practice of the
commission in selecting, .those (re~~red commissioners)
who are asked to serve on an interim' basis (when one of
the current commissioners is not available), when needed.
As a former commissioner and chainnan. for example, I
am eligible, but have been called to servejusfonce sinCe
2003. while others have been in the rotation as many as 20
times (an apparent reference to Judith Wolson, most often
asked 'to fill in for absent commissioners, a white
. female)."
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"I have inquired but have never heard from either the
commission or governor's office abOut this inequity, and
when ,I asked for public infonnation regarding how
col1Ullissioners are chosen to serve on an interim basis,
and
they've been paid, 1received a reply nine months
later from the commission's general counsel that contained .

none ofthepubUc records rd, requested. A later request to
the inspector. general's office. confmned that the
commission had provided' me With 'what infonnation was
available.' I am astounded to know that the records of
persons who worked for the state, and what they were
paid, is unavailable," complained Scriven. ..
.
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Wrapping up his letter, ,Charles Scriven posited a
question that no one seems to want to acknowledge, much

less answer. .

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"Gov. Crist inherited a Parole Commission that ,in my
view bas shown its inability to be fair with. a fonner
member of itS own who happetis to bo black. This-raises
the question of how ,it can be fair to the disproportionate
number .of black (parol~ligible) inmates in Florida's prison system? No, the real issue regarding this
appointment to the commissionis.not diversity, but racism
and cronyism." •
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,, Help Supp~rt FPLAO
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If you haven't :made a donation to Florida
Prisoner:s' Legal·· Aid' Org.. Inc., recently,
please do so now. Membership fees and ads
jn FPLP only cover the ~O'stofpublishirig'and
mailing this valuable news jouinaI.In order
for FPLAO to take on additional projects to
improve cOnditio~ for Florida prisoners and
their families additional donations are needed.
Donations of money -or,' postage. stamps. in
any amount, are greatly appreciated and helps
FPL'AO continue' its mission of being' the
most. effective and proven -ch6ck-and-balance
on the Florida prison system. Thank You" for
your support.

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Florida Prison Legal'Perspectives ..

'The Researcher's Nightmare,

.. Notwi~s~~ing the need for ,continuously up-dated
Cltators. like Shepard's which ,provide annual; semiannual; quarterly; bi-monthly; monthly; mid-monthly. an~
advance sheet .updates. keeping the·, researchers
information current to within two weeks. the FDOC has
magine' being an attorneY or an education-trained
decided
in~ to install the CD-ROM version of
, paralegal working under the supervision of a licensed
W~stlaw's "Keycite" program.
attorney. having, to wade your way through the hundreds
Admi~dly. "Keycite"is ~ updated as the Shepard's if"
9f thousands of case decisions currently published in the
and
only If, you have access to the internet. However. the
numerous reporters without being able to research a case's
ve,rsion
us ,prisoners will be provided 'will only be
history. A nightmare right?' ,Yet" this is exactly what
updated
every
three months o.n January 1". April I". July
moc expects from itS.prisoners. '
Ill,
an~ October 111. This i~ ifwe are lucky enough to have
Recently. the FDOC posted proposed rule changes for
the programmer up-date our individual priso~s in a timely
Chapter 33. A simple review' of the proposed changes
planner.
Those of us who have;spent some time in FDOC
makes'olear that since the FDOC installed the CD-ROM
know
that
this iii highly unlikely.
"
version of WESTLAW. it believes there is no longer "a
,Even
so.
as
of
February
2008,
you
will
'probably
have
need 'for the Shepard's Citations, a critical legal research
tool.,
.
,
' . , noticed, th~ Shepard's Citations have not been updatedD?C has ~mplemented its' new pOlicy. Believe jt Or not,
Previously, 33.S01.301(2Xl). F.A.C., required the
thIS
has caUsed some concern among DOC officials.
~'Florida and Federal Shepard's indexes." This was echoed
In
a recent inter-departmental memorandum, some
in the Procedure Manuel. See: P.M. SOI.301(l)(b).
DOC
,
offic:ials .have .recognized the problems with
However, the 'department replaced "Shepard's Citations"
Shepard's CitatOis. Could it bO, that these '
removing'the
with "... case status of a court decision over time or to
officials
know
that ifa,nyone of us is injured in
identify related court decisions..." See: 33-501.301(2)(i)
c?nte~~lated or existi~g I.itigation· we may have suit for
(proposed Rule Changes).
vlC?lauons of our constitutIonal. rights? See: lewis surpra
What exaCtly does'this'Diean? It appears to this writer
at 349.
", '
'
,',
that th~s is a generic phrase' thai, means' nothbtg more than
, Shepard's Citations are .not specifically required as part
you Will.no' longer be, able to effectively, or adequately
of
our law libraries collections, however, updated cmt
update your case research.
,"
'
legal
informatio~is. See: Bounds, supra at'S27. (stating
" In U.S. v. Beckwilli,the Federal District 'Court fOf the
"[!]t
is
lJartic~I!U'ly important thlt officials provide i~
District of Utah stated that in order to afford a defendant
WIth
access
to a source cif curren/legal information.")
an adequate. opportunit)!, for, the prep.aration of h~s case.
, Is there; anything we can 'do? Probably not since. as
~efendant must, be : allowed, access to, among other
?oted, '~he~'~ are not themselves sPecifically required
p~blications. Sh~p'~'S Citations ,when representing;
ID the law library, collections and a section '1983 ,claim'
hamself. 987 F.Supp;134S, 1347'(0. Utah 1997).. ' '
d~
not lie in a priSOI.l'S refusal to subscribe to and
. ~gal precedent, ,as we all know by now, develops in
PfQvide Shepard's Citations:.
'
an 1Dcreme~~ ~hi~~ •. ~~n one case, is ci~ by a
But,
keep
your
eyes,
'Open,
sometime
in the very near
, seco~~ deciSIOn, ~pprop~ate methodology requireS that
future
one
of
us
will
be
inj~re:d by either citing bad law or
. the second decision be read and its histOty searched. This
may in tum require the process to be repeated over and ' , not catching'a bad ci~ by the State as a direct result ofthe
FDOC's decision to, r:ely on the CD-ROM version of
. over ~gain. WithoUl a, method Uke Sh~parci'S ~itati~ns for
"Keycite."
"
.,
,
.
chec~~ the histo~. of .lJ, ~e, legal res~ch of' any,
At that time, you may have a constitutional violation
quality IS extremely difficult. See:, Wesl Pub. Co. v. Mead
for
which you can seek redress from the court Until then
Da/aICent., Inc., 616' F: 'Supp. 1571,'15S3 o.l (0. Minn.
be
diligentin
your research, check and double-check you;
1985). ' ,
',,,',
case
cites.
do
not allow the FDOC the satisfaction of
In fact, even the U.S. Suprem~ Court iil Bowu:Js
k~ping you locked up one d,ay longer than necessBry. _
considered.the failure to include Shepard's Citations in the
collection list of a prison law library as a "questionable
.
'
oa,nissi9n." S~: }Jmpu/s v. $milh, 430 U.S. 817. 827
(1977). (overruled in part by lewis v. Casey, 518 U.S. 343
"U.S. District CQurt Terminates
(1996».
.
OsterbackIQjunction
, Moreover, the American Corrections Association
'. by Melvin P6rez
(ACA), the Am~ri.can Bar Association (ABA). and the
American Assoclauon ofLaw Libraries. require prisons to
retain Shepard's Citations as part of its minimum
n' a 12 page, opinion issued by the U.S. DiStrict Court,
collection for approval. See: Lindquisl v. Idaho Slale Bd.
Middle
District
'of
Florida, 'Jacksonville
Divisiont on
th
.
.'
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•
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•
oICorr.• 776 F.2d 851, S56 (9 Cir. 19S5).
, ,by AnthonYM. Gallagher

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Florida Prison Legal Perspectives
March 25, 2908. the Court terminated the OSlerback
injunction.
As many of us know, this case brought about major
changes to Close Management (hereinafter CM) units
around the State and othe~ types of segregationuni~.
Some ofthese~changes included:
'
,
• Reducing the number'of institutions that house
CM prisoners from ten institutions to four
.institutions (one for females at Dade CI and three
for males at Florida State Prison, Santa Rosa CI,
andCharlotte CI). •
'
• ,Conducting staff training on mental health issues
relevant to CM population.
'
• Performing mental health screening before and
after plaCement in CM to help ensure timely
access to necessary mental health services. ' .
• Assessing behavior risk for each CM prisoner, in
order to provide more objective information to' be
used for mental health and other service planning
and administrative decision-making. '
• Providing a full range of outpatient mental health
services that are cOmmensurate with clinical need.
• Providing
self-betterment/stimulation
programming to CM prisoners.
The case was initi~ted by three'
prisoners,
Mark oQsterback, - Thomas Gross, and Darryl' ,E.
Williams, on August 28, 1997. And later certified as a
class action on July 26, '2000, for all prisoners
assigned to CM or who in the future will be assigned
toCM.
In terminating the injunction under the Prison
Litigation Reform Act-the Court held that:
,1)' CM staff receive adequate training regarding the
needs of CM, but some officers occasionally fail to
adhere to that training;'
'
2) the DOC provides adequate mental health screening
ofCM prisoners;
,
,
3) the DOC ensures that CM prisoners have timely
access to necessary mental health services;
4) there are sufficient qualified mental health staff at
, eM institutions;
'5) mental health staff are able to take meaningful steps
to ad~ress a prisoner's mental heal~' needs despite any
restrictions placed by security staff;
6) CM'prisoners are housed in units that are suited ror
extended confinement; i
'
7) although there are occasions when a prisoner loses
privileges, for simply speaking to another prisoner,
these incidents are i,solated and CM prisoners have
adequate opportunities to communicate with each
other; .

8) CM prisoners have, adequate access to the dayroom and to reading materials, telephones, radios and
television; ,
9) CM prisoners have adequate opportunities to
,exercise; and, '
.
.I 0) CM prisoners have adequate access to educational
opportunities~' and have adequate opportunities to
make canteen purchases 'and engage in visitation.

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If you are reading this article housed in aCM unit
cell, you may find this ruling bizarre. But, despite the
fact that·these are not isolated incidents as the Court
found, many prisoners sqbjected to abuse on CM units
are not speaking out. Many know they will be beaten,
or even killed ifthey do.
The beatings,. gassings and atrocities ,that are
carried out by some guards in theseCM units are
known throughout the system.
, Prisoners' enforced silence, which ties the Courts'
hands on what relief they can provide,' gives ,the
cowards who beat prisoners while in handcuffs.
torture them with chemical agents (~hile the prisoner
is in the shower or in his cell handcuffed), deny
recreation, canteen .and o~er privileges; deprive
prisoners of property and food; feed prisoners loaf (an
unappetizing substance made by mixing various foods
and baking the mixture); have prisoners sleeping on a
steel bunk in boxers with 18° temperatures, and write
bogus disciplinary reports that up-grade. prisones:s to
other, CM 'levels, ,the motivation to continue to abuse
prisoners.
While the Court strongly encouraged the DOC to
keep the "Staff Training,", "Mental Health Screening,"
"Mental
Health
Treatment,"
and " "SelfBetterment/Stimulation Programming for' CM
prisoners," it may just be a matter of time before CM
units ,return to pre.Osterbac/c" .and DOC ·starts
opening CM units around the State, as it initially
intended.
.
,To read the Court's full opinion, See: Osterback v.
McDonough, 21 Fla. L. Wkly Fed. D 234 (M.D. Fla., .
March 25, 2008).
ENDNOTES
• Actually, the FDOC cheated on the number of CM
institut~ons by housing CM~lassified prisoners at
Union Corr. Inst also and designating' it a Florida
State. Prison'"annex"-just in relation to the UCI CM
units. _
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Florida Prison Legal Perspectives

FDOC Prison Gua-:ds
Charged,in Drug Conspiracy

-Opinion-'

Taser Law: Now'Judges Change
.Medical Facts To Tailor-Make
Decisions
by Richard Geftken
ince 1999 mo~ than 300 Americans have been
killed by tasers used by the police. Some people
were merely shopping.
.'
On May 2, 2008,. Ohio Judge Ted Schneidennan
ordered 'Dr. Lisa Kohler, the M.D. licensed to be
medical examiner for Summit County, to change'three
death certificates. Moreover, she w~ ordered to delete
any reference which might suggest being shot by
tasers contributed in any way to these murders.
The reason is Taser Corporation's. net worth rose
from $19 million in 2006 to $49 million in 2007.
News that the weapon is lethal might, hurt .sales,
especially of their model x26, often called "a sadist's
delight" because of the horrors it inflicts while police
torture captives.,
Judges have been altering the law to arrive at
orchestrated decisions for far too long. The reason
courts use no longer' resembles any kno\W logic.
However, it is not rare to find them changing the facts
to suit the result they desire.
.
Until May 2, 2008, it would be up to a jury to
decide if Dr. Kobler's professional medical opinion
was factually incorrect. Prior to the 21 II century that
would involve testimony by conflicting experts.
Instead, Judge Schneiderman simply dictated his
own explanation for tWo of the three victims. ,Dennis
Hyde and Richard Holcomb. He invented "delirium .
syndrome" or "agitated delirium", as the cause of
death.
'
.
Neither term appears in any medical manual, but
Taser . Corp. currently funds research on "excited
delirium." It hopes to blam~ victims for contributing
to their own .deaths due to prior prescription drug use
or mental illness.
Nothing was suggested. about the third victim,
Mark D. McCullaugh, Jr., who was a prisoner in
Summit County Jail Tbere was no history of prior
drug use or mental' illness; Dr. Kohler, M.D., was·
simply ordered to delete her. findings it was a
"homicide" caused while suffering "multiple restraint
mechanisms with ·beating and anal penetration." So
much for innocent until proven guilty~
Except for the five deputies charged with sodomy
. and murder. In that situation the medical facts are
changed by the judge before they stand trial on June

S

16,2008••

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MIAMl- During July 2008, five' Florida Dep8rtment of
Corrections (FDOC) prison guards who worked at Dade
Correctional Institution, located in Florida City near Miami,
were indicted on charges ofconspiring and attempting to traffic
illegal narcotics inside the prison and for accepting cash
payments from prisoners in return for helping to deliver
narcotics inside Dade CI.
.
Charged and arrested.were Captain Jimmy Lee Love, Jr., and
Correctional Officers Shantavia A.L.. Johnson, Dennafd G.
Fluker, Alexander J. Davis, and Ivis N. Grace. Felicia Z.
Calloway, a contract employee with the private company that
provides food service at Dade CI, was also charged and arrested.
Also named in the indictments were six prisonen; Arnold S.
Lindsay,.Jr., Jose Rodriquez, Henry J. Be~jamin,Nilo Penton,
Joseph Springer, and Leon O. Montes, as well as Barbara N.
Rodriguez, an associate ofone ofthe prisonen.
The four indictments stemmed from Operation Birdcage, an
FBI undercover investigation and sting into corruption at Dad"
CI. The operation involved several meetings in which an
undercover police officer\ posed as a druB dealer. The
underCover agent reportedly was referred to prisoners who were
connected to Dade CI, and contract, employees. That led to a
series of meetings between the agent, certain prison guards, the
contract employee, and the prisoner associate, whicb were
surveyed and recorded. As a result of'the. meetings, the agent
supplied the defendants with fiike cocaine and heroin for
introduction. into the prison, and money ,payment for their
services.
If convicted, the defendants. face a maximum 2o.year
sentence .on each charge and a $250,000 fipe••

Private Prison Accused
in Prisoner Staph Death

T

he family of a Florida prisoner wbo died from a drugresistant staph infection (MSRA) claims she contacted it
because she had ~n deprived of water for bathmg and 'toilet
use at a· state prison operated by the private company
Corrections Corporation ofAmerica (CCA).
A lawyer, Patrick R.Frank, representing the estate of Emma '
Nobles, who died of MSRA Dec. 15,2005, in a Tallahassee
hospital, made the allegation in notice of intent to sue letters
sent to two state agencies duriJ)g August 2008. According to
Frank's claims, water was turned off for days at a time at the
women's prison, Gadsden Corr. Facility, apparentl)( as a costcutting measure.
Prisoners at. the facility, including Nobles and others who
contracted MSRA. went witho. water in restrooms and bathing
facilities possibly for up to a week at a time. Investigation has
shown that prisoners were forced to defecate in plastic bags
instead of using toilets which were then collected in barrels kept
in the prison dormitories, all&lges Frank.
. .
Nobles, 51, of Wewahitchka, only had 60 days left to
complete a drug possession sentence of a little over a year when
she died.•

Florida Prison Le -al PerSpectives

Dear FPLP: I've been doing time for a long time and just want to express a total lack of respect for those liars who every
year roll out the same old ti~ rumors to get the uninformed and/or igno~:1t among the pri~n population all worked up
and spreading lies. Let me clarify a few facts: Nobody. not the Legislature. the governor. the FDOC, the Parole
Commission. etc.• is going to convert old life sentences to 40-year sentences and let thl? lifers go. First, th~ public would
go ballistic ifanyone even seriously suggested such a thing (which. despite rumors. no one ever has). It would be on every
front page. and the top story on TV news. -Victim groups would be allover it in opposition: Second. there is the little
matter ofthe courts. To reduce or'lengthen any sentence there must be a resentencing. While way in thepas~ in F,Jorida. it
was law that a life sentence was a 40-year sentence. for specific crimes. such law has long been ch~ged to where life
means life. And don't ever think Florida will reduce preyiously-imposed life sentences to save money.' Prisons are big
business. there will always be moiley for them. Just look at this year. every agency took budget cuts (5900 million in
public education alone). except for the FDOC.it was given!!!2m money to'build more prisons. -Concerning another tire~.
old. womout rumor-lie. converting 85% sentences to 65% and letting people go; Not going to happen. not as long as
politicians want to keep their jobs. Not without a major change in tIle'law-that woul4 be plastered all over newspapers
and TV-and not without major court involvement. Come on. That lie is ~om out., Are you retarded to keep repeating and
believing it year after year? Instead of spreading rumor-lies to make yourself feel iniportant, how about doing accurate
research, keep up with the facts. eliminate exaggeration 'from the information you pass on. 'and gain respect for ~
.passing on verified. accurate information? Or you can ~eep,on Starting or repeating the s~e old rumor-lies year-after"
'
...., '
year and continue\being what y~u are. and w~at everyone will know you as. a liar. TO DCI
Dear FPLP: I read the column written about Mayo CI and wanted to share an incident that I had with staff at Mayo. I was
, working in ~e kitchen wiping tables when a sergeant came to me and loudly told me "don't you see all those inmates
coming in the door." Then he said that he thinks that I better get my MFA to the other side so that I could clean tables for
them to sit. So I and another prisoner were cleaning and the other prisoner walked away. Then the sergeant walked back
over to me and said that he thought that I should g~t my sonY ass over there and start off where the other prisoner left off.
I then asked him ifhe had a personal problem with me and he got mad and went to the captain. The captain called me over
. and as I was t~lIing him what happened. the sergeant came behind me about two inches from my back. He then asked the
captain "do you want me to lock hisF-ass up:"On the way to medical. the sergeant called another'officerto help
escort me: On the way outofthe medical building, the two ~fficers started hitting me in the back of the head. When they
,were done the sergeant told me that ifI was to tell anyone that it would happen again. Then the other officer said that he .
would kill me ifI did. I was then placed in confinement. When the inspector called me I told him what took place. He in
tum threatened me about saying anything about the' incident and took no action. My classification officer also called me
and threatened to place me back in confinement iff said anything else about this. Since I have been at Mayo. I know of
three other prisoners that were beaten by one of,these same officers that hi~ me. Nobody seems to take action against these
guards ~t have been doing this to so ,many prisoners. it has become cominon practice with them. BW MCI

'" unfortunate
FPLP: It is unfortunate that a female prison guard was recently killed by a prisoner at Tomoka CI. It is equally
that in Florida females are allowed to even be guards inside male prisons. and that· male guards work at the female '
prisons. Inside the male prisons. female guards are frequently the cause of male prisoners being beaten and abused. If a·
female guard claims a prisoner has been "looking" at her. most often the prisoner will be taken to confinement, or another·
secluded area. and' while handcuffed and shackled. he will be beaten by a gang of male guards; Same if a female guard
claims a'prisoner "disrespected" her. or even questions her often overly-sttict or wrong interpretation of a rule or policy
that she often has never even read. or one that she just made uP' because she coUld. ,While some female guards are
professional. many others are not. Let one be having a bad day, like younger women often have several days each month.
and prisoners often suffer the consequences. Let one be going through menopause and it can be like having a demon from
hell on a prison compound, especially if she ,has a little rank. Female prison guards are often insecure and afraid of male
p'risoners and so overreact to petty infractions by prisOners, or overreact to tty to appear "tough,II even when such isn't
necessary and in itself causes unnecessary problems.' It is not uncommon for female guards to curse at and talk to male,
prisoners like a dog, they are trained that this is intimidating and a way to keep control. Occasionally they pick the wrong
oneta abuse. lie about, or have beaten. and then the tables tum. Unfortunately. DB WCI
7

..

Florida Prison Legal Perspectives

Dear FPLP: I wanted k> bring it to your attention that I presently have a Petition for Writ of Certiorari in ·the 2nd District
Court of Appeal [#2008-2621] that may tum out to be very helpful tc;) quite a few inmates in FDOC. It deals with FDOC
acting without statutory authority in placing me on Post Release Supervision, under the Repea,Ied Provisional Release
Program. It's a unique case because FDOC is claiming that the Provisional Release Program was revived by the "Lynce"
& "Gomez" decisions and that gave them authority to release, supervise. violate amJ return me under that program despite
the. fact that all the Florida Statutes and F.A.C. rules that govern this program have been repealed since 1993. The FDOC
counsel position, claiming revival via th~ Lyilce'declsion, puts them in a' catch-22. If the DCA agrees with their revival
claim, then that means the whole Provisional Release Program was revived in 1997 and FDOC owes thousands of
inmates. thousands ofProvisional Credits now. And ifthe DCA rules in my favor, FDOC has been putting inmates (under
this old system) out OD Provisional Release SuperVision without any aUthority at all, since 1997. I believe I am going to
prevail on this motion in the DCA and as I said it will affect a lot of inmates under the old system and exposes FDOC's
abuse of power in just one more situation. I don't know if you are able to review this Petition on the Internet but I assure
you it is very interesting reading indeed. FDOC will file their response to our motion by August 1st, after two extensions
of time. and then my' Attorney gets'to file our reply to their response. Our motion is very strong and as I said earlier a
- unique ~ase. I urge you to review it ifyou can. Keep up the good work. JP FSP
.
I?ear FPLP: As we all knew. the corruption and wrongdoing in the Florida prison system wasn~t wiped out while former
FDOC Secretary McDonough was trying to clean it up. it was just laying low and waiting for him to· leaye.. Since Mr.
McDonough ,was forced to resigr:t' earlier this year when he angered state lawmakers by being so outspoken about
... "rehabilitation" of prisoners, by pushing for reforms that would have actually reduced crime. recidivism, an~ the need to
build more prisons, the corruption and wrongdoing that is at·the very core of the FDOC is again rearing its ugly.head. The
abuse and beating of prisoners. which hacl almost stopped under McDonough, is once again becoming commonpla~ at
many prisons.· Especially those in the Panhandle and North Florida regions, specifically Santa Rosa, Gulf. Washington.
Taylor, Mayo and Union CIs.' At Union CI the guard-on-prisoner violence has dramatically increased in the past few
months. Elderly prisoners are being bea~n, some injured requiring hospitalizatioD.aS are confinement, CM, and mentallyill prisoners. In just the past month two elderly prisoners at the UCI open population SW Unit weie\severely beaten by
male guards instigated by female sergeants on the 4-12 shift. One prisoner remains in an outside hospital undergoing
facial restructuring. The pther was beaten in the face with a metal walkie-talkje wbile being questioned about why he was
sending letters to o~ide agencies about prisoner abuse at UCI. Both beatings were coyered up with bogus charges against·
the prisoners-as is. normal~ It's even worse in the mental health units at l!CI. Young,· pumped up. minimally educated
guards frequently beat prisoners in thoSe units who act out, they claim the prisoners are "faking being crazy." Supervisors,
.who know what's g6ing on; approve and help cover up the abuSe. Medical and mental health personnel look the other way
,and keep their mouths shut to preserve their jobs. Prisoner orderlies are threaten'ed to where they "know nothing and see
nothing." And the cancer grows, again. We can stand together or hang separately. to paraphrase Ben Franklin. I donlt
advocate sacrificing yourself in a no-win situation. But if you see or kjlow of serious abus~ of.other prisoners or crimes
committed by FDOC st8.fh have your people rep.0rt it to the FDLE and/or FBI Cjvil Rights Division. Use the anonymous
Crime Tips Hotline available on the telephones to report assaults on fellow prisoners or crimes by staff. Respect yourself.
or no one else ever will. MW UCI
'.
•
. . .
.
c'

,

FPLP: After reading some repulsive prison cases from around the country that are published in the Federal Reporters '
dealing with prisoner abuse, it's obvious that a segment of people in society afflicted with profound and severel mental
issues are attracted to,the prison workforce. In this advanced day and age it seems reasonable to believe that some fonn of
psychological screening, at least a personality inventory, should be a matter of roiJtine beforejust anyone. is able to secure
ajob in this field. In Florida, for e~ple, psychological testing is not,8 qualifying factor for a position as a correctional.
officer. Florida Statutes 943.085. legislative intent with respect to upgrading the quality of law enforcement and
correctionalofficers, nor 943.13, minimum qualifications for correctional officers. refer to nothing that remotely
resembles psychological testing. Is this omission intended or an oversight on the part ofthe Legislature? Who knows? But
one.thing is for certain, it allows people who are prone to grossly sadistic and unscrupulous behavior to work in an
environment they are unsuited and'unqualified for. In order to preserve a prisoner's rehabilitative goals and to respect
basic human ripts, infinn agendas must be eliminated. I believe that psychological testing and evaluation is a necessary
qUalifi~on component that should be required by'law for all potential Departnient ofCorrections personnel.· MD LCI
,

8

'

Leiters to the Editor from FPLAO members may be printed in this section. The identity oflettlfr writers will be by
abbreviation, U1Jless otherwise specified by the writer. for protection against ppssible retaliation. and to encourage
freedom ofspeech. All letters printed are subject to ediling for clarity and length. A// leiters cannot be printed but are
. invited. Address leiters to: Editors. FPLP, P.O. Box /069. Marion; He 28752. If your letter also concerns membership..
membership renewal. address change. ide.• please address that molter at the beginning of the letter to assist staJ! in
processing your mail. •
.'

Florida Prisqn Legal Perspectives

POST CONVICTION
CORNER"

.'"I",:
.'
..

.. ~
~'\

"

by

Loren Rhoton, BIq.
,

.

"

.Recently it seems that I have seen a rash of cases where incarcerated
individuals have hiredpostco~victioncounsel, in an effort to attaekthe
effectiveness of trial coUnsel, only to once again receive ineffective assistance at
the hands ofthe postconviction counsel. Unfortunately, for the most part there is '
no. constitutional right to effective assistance o(po~tconviction counsel. .However,
If an attorney has been retained to pursue a cOll~tend postconviction proceeding .
and a}lowstheclient',s two year period oOiniitations (as imposed py Rule of .
Criminal. Procedure 3.850) to lapse wi~out.timelY fiJing a mot~on, the client
',should at least be able'to obtain'the ability to file a belate4 Rule, 3~8.50 Motion.
The following article addresses the above, situatiQri..
(..
It is true that a criminal.defendant does 'not have a due process riiht,
. PurSuantto the.Sixth Amendment ofthe United States Constitution, to effective
assistance of counsel in a post conyiction proceeding. I.,ambrixv. State, 698
So.2d 247 (Fla. 1996).flowever, the 1101diI.lg ofLambrix do~snot dictate thaloa
post conviction Movant is.to receive no due process whatsoever. In fact,. it was
held in State v. Weeks, 166 So.2d 892 (Fla. 1964), that "[postconv.iction] remedies
are subject to the l11ore·fl~xible~dards of du~ processannounced.inthe Fifth
Amendment, Constitution ofthe ·United States." Weeks at 896. For example, in
Weeks and Graham v. State, 372 So.2d 1363 (Fla~ '1979); the Flonda Supreme
.Court held that due'process:required the appo~ptmentof p.ostconviciion counsel
when a prisonerfiled a substantially ·meritoriQUS postconviction motion and·a.. ·
hearing on .the motion was potenti~ly so.complex that the. as~istanceofcoU11$el
was needed. Thus,although a post conviction. movant ~y nothav.e ~e right to
effectiv~post'conviction counsel pursuant to ~e Sixth.AJ.p.endment ofthe United
States Constitution, said movant shall still be ~fforded the more flexible standards
of due process.
In Steele v. Kehoe, 747 So.2d 931 (Fla. ·1999), the .Florida Suprem~ Court
addressed the factual sceI;lariowhere a ~fen~t was due relief pursuant to the
more flexible standards of due process announced in the. Fifth Amendment-of-the
United States Constitution. In Steele, the defendantw~,convicted. or'fIrst degree
murder and sentenced to life in prison. ML,Mr.S.teele claimed thathe.retailled an
. attorney to fil~ a motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, and that said attorney orally agreed to file a motion for
postconviction relief. '!d:. at 932. The attorney ~en failed to file a post conviction

9

Flori~a Prison Legal Perspectives-

motion on Steele's behalf in a timely manner, i.e., after the two year penodof
limitations for filing such a motion had expired. Id. Mr. Steele's pro rille 3.850
motions were rejected by the trial court and the Fifth District Court ofAppeal
because they ,were filed after the'two-year deadlinehad expired. hL ,
As a.result ofhis pOSt CQnvictionactions being barred, Steele filed a legal
malpractice'complaint against his postconvietion attorney: But, since Steele;s
3.850 motions had, been dismissed, Steele did not have an opportunity to
'
demonstratethat he was improperly convicted as a result of his attorney's
negligence.kL"The trial court dismissed Steele's complaint because he could not
prove his actual innocence or that his underlying conviction had been set'aside.

se

ML
, The dismissal of Steele's complaint was 'affmned by the Fifth District Court
,ofAppeal because exoneration is a prerequisite to a -legal malpractice action '
arising'from a criminal conviction. Id:. However~ the Fifth District was 'troubled
by the result,' noting th~t irrespective of its holding, a mon~tary remedy in a civil
action would be inadequate to redress Steele's injury. And, although'the court
recognized that; pursuant to L~brix v. State'698 So.2d 247 (Fla. 1996), Steele
'had no right to effective postconviction counsel, they'di:d,consider what other
possible remedies were 'available. The DiStrict Court considered what remedies
would be available to a prisoner who' hired an attorney to pursue postconviction
relief and sald attorneyfailed to timely file a motion withiti the tWo year period.'
The District Co~ held that "[i]fa prisoner is denied the opportunity to challenge
his eonviction'urider'an appropriate rule only because ofthe negligence ofhis
attorney, then dUe process requires a belated filing procedure similar,to'that
allowed in belated appeals." Steele Kehoe, 724 So.2d 1192 (Fla.'Sth'DCA·
1998)..
"
,
On app~, the Florida Supreme CoUrt in Steele y. Kehoe, 747 So.2d 931
(Fla. 1999), agreed with the Distrlct Court, stating that" ...d1iet process entitles a,
, prisoner to a hearing on a claim that he 9r she missed the deadline to file a,rule
3,.850 motion because his or her attorney had agreed to file the motion but failed to
do so in a timely manner." Id:. at 934. As such, the Florida Supreme Court held '
that the correctprocedqre would be for the trial court to conduct a hearing on
wheth~the postconviction attorney undertook to file a 3'.850 motion on Steele's
behalf, );>ut failed to timely file the motion. And, if such circumstances are proven,
then the right to file a belated 3.850 motion should be granted~
" As a result of Steele v. Kehoe, 724 So.2d r 192 (Fla. 5th DCA 1998), Florida
rule ofCri~al Procedure3.850(b) was ani.ended to provide a pew exception to
the two year period oflimitatiOits for 'filing a Rule 3.850 Motion for
.
Postconviction Relief. Rule 3.8S0(b)(3) now provides that an exception to the-two

v.

10

Florida Prison ~gal Perspectives
year period of limitations occurs ~hen "the defendant retained counsel.to timely
file a 3.850 motion and counsel, thiough neglect, failed to file the motion." .
If, as I have been seeingmQre and more of lately, you have hired an attorney
to timely file a postconviction 3.850 motion, and said motion was not timely filed,
your case is not necessarily dead.' The procedures outlined in Steel' should De.
.
followed in an effort to conviI?-cethe trial court to allow you to file a belated 3.850
motion. Thereafter, in the belated 3.850, all issues which 'should have qeen raised
in the first place can thel{ be argued.
.

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rho~on practices almost exclusively in the pos!convictionlappellate
area ofthe law, both at the State and Federal Level. He has assisted
hundreds ofincarceratedpersons with their cases and has numerous
written appellate opinions. ~
.
•
-----------------------------------~

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.
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11

Florida Prison Legal Perspectives.

LorenD~.

Rhoton

Postconviction Attorn.ey
•
•.
•
•
•
•

Direct Appeals
Belated Appeals
Rule 3.850 Motions
Sentence Corrections
New Trials
Federal'H~beas Corpus Petitions

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

BUY THE·BOOK - ON SALE NOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Pbstconviction Corner Articles

.-

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are provid~. This book is specifically directed toward those pursuing postconvi~on relief.

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

12

Floride Prison Legal Perspectives

D. B. GRIEVANCES / APPEA'M
AND
JUDIQAL REMEDIES
BY DANA MERANDA AND HOWJUU) RICHMOND,

.

.

.......,p,....

PABTD,

TtaeDJ...

.In order to get an understanding of the law that's applied to FDOC discipliDaly process, there are some basic
concepts to briefly cover f i r s t '
-, . . '
.
FDOC is an Administrative Agency. Administrative Agencies are executive branch entities. Th~ :function in
government is to "administrate" the public policy which is more commonly known as statutOJy law.
Agencies are created by statu~ and their powers and authority do not extend beyond that provided by stabIte.
In the rea1in of Quasi-Legislative' Powers the legislature delegates the authority to an agency to create rules.
That authority is limited however'to implementing a Florida Statute. In other words, just having ruJemaking authority is
not enough to adopt a rule. A specific law (statute) to be implemented is also required.
"
.
.
An agencyls rule making policy is governed by Chapter 120.54 Florida Statutes, and the statute an agency relies
on to promu1~e a rule must provide adequate guidelines that will establish the extent to.which an agency may exercise
those powers.
'
Similarly, quasi-judicial powers are adjudieatOly powers and specifically p.rovided for by Article V, Section 1.
of the Florida Constitution, which states that the legislature may grant administrative bodies quasi-judicial powers in
matters coonected with the function of their offiCes.
An administrative judgment is Quasi -Judicial in nature when notice 8nd a hearing are required and the judgment
is rendered llPon the showing made at the hearing. BecaUse these administrative.pro<:o>dings resemble a judicial
function, they are called quasi-judicial.
'
..
Prison Disciplinmy proceedings, while Quasi-Judicial· in nature. hlPlemarked differences fiom the adjudicatOry
actions taken by the other agencies in Florida.
.
Chapter 20.315 Florida Statutes creates the Florid8 Department of Corrections and Section (1) establishes its
PurPose.
'
_
Section (3) expressly provides "The SecretaJy shall ensure that ~e programs and services of the department are
adminiStered in accordance with stale and federal laws, rules, and regulations, With established program standards and
consistent with legislative intent."
"
, Chapter 944:09 Florida Statutes gives FDOC the authority to adopt rules pursuant to §§120.536 (I) and 120.54
Florida Statutes to implement its statutory authority.. Section (I) (a) - (q) encompasses several categories including the
rights ofprisoners ~ disciplinary procedures and punishment
~apter 944.275 (5) Florida Statutes states that "when a prisoner is found guilty ofviolating the laws of tis state
or the rules of tile department gain-tUne may be forfeited.
.
Chapter 944.28 (2) (e) descn'bes the method of decIariilg a forfeiture, .therefore the right hearing is predicated
upon the potential loss ofgain-time.
'
Keep in mind- Prisoners are not the only ones required to follow the rules. An Administrative Agency must also
comply with its own rules.
.
:
,

to

Due Process and P~D Disciplinary ProeeediDgs.
It is important to first understand when due process attaches to prison disciplinary pfoceedings.
Although the Comt in Sandin v, Conner. lIS S.Ct 2293 (1995). refined the inquiJy into the existence ofi statoe:teated liberty interest (1ater reaffinned and explained in WilkiltllO!! v, AustilL 125 S.Ct. 2384 2393-94 (2005), the
Sl!ndin Court clearly held that state action that effects the length oflieDteDC8 trigger the 14lb Amendment's protections.
Malebi y, Thaler, 211 F.3d 953 at 959 (5th Cir. 2000).

The ~ Com added the additimial requirement of an atypical and sigJiificant hardship. Under this approach
the most common way in which entitlement to due process protections are created after S!I:n!tin is when there is a stat(>o
created h'berty iDterest which when dCmed imposes atypical and significant hardships beyond the "ordiJiary incidents of
prison life."
A state-created liberty interest 'arises when the state through a statute, or rule creates "mandatory rule and
remWuions to govern disciplinary proCeedings". This can occur when the state in its statntes, rules or regulations "uses
words like will, shall. or muSt".
'(To establish "the right to due process protections an inmate must show (1) the state used maDdiltory language in
i~ relevant statute or regulation. thns creating a liberty interest; and (2) the punishment·... endured constitu1ed an
13

Florida Prison Legal Perspectives
0,

I .

.

"atypical ~d significant hardship"). Columbia Human RighfS 'Law Review, A Jailhouse Lawyer's Manual, 622 (st' ed
2000).
.
.
, For example. when there is aloss of gain-time duiins a diScip~ proceeding. due process attaches and tho
procedures in Wolffy. Me Donnell 94 S.Ct. 29~3 (1974), apply. The Wolff Court articulated:
..
.
(1) The function of the written notice of the charges is that it must be given to the disciplinary-action party.in order to
infonn him ofthe charges and to enable him to marsbaI the facts and prepare a defense.
(2) The Court reasoned that there must be a "written statement by the fact-finders as to the evideDce. relied on and
reasons" for the disciplinaty action because such proceedings may involve review by other bodies; written records ofthe
proceMings will protect the·imDate against collateral consequences based, on a misunderstanding of the nature. of the
original proceeding; and 'written records helps .to insure that administrators faCed with scrutiny where constitutional
rights may have been abridged, will act fairly. W,rthout .written records, the inmate will be at a severe disadvantage in .
propounding his own ~ to ordefending himselffrom others.
(3) To call·witnesses to present documentary evidence in his defense, if permitting him to do so will not jeopardize
institutional safetY or coaectional goals- balaDcingthe inmate's interest in avoiding loss ofgood time a8ainst the needs
of the prison, and some amount offlexibility and accommodation is required. ~94 S.Ct. Id. at 2979-80.
The following is
available.

a general overview of the Disciplinary Process.

References are made to case law when

RepordDg Diseiplinary InfraCdoDS 33-601.303

.

Some infractions can be properly disposed of without a formal Disciplinary RepOrL This usually occurs with a
verbal reprimand or in writing through corrective consultation (CC) Form DC6·117.
.
.
Verbal counseJingis designed to motivate the imnate to comply with or clarify the roles of institutional
regulations I po1j.cy, and will be documented on the inmates contact card. "
In contrast a (written) corre:ctive consultation (COC) will be provided to the inmate withi,n 24 honrs of thO writing
and a copy will be placed in the inmate's institutional file. A Corrective consultation is not considered a discip1inaJ:y
action under the grievance process, 33·103.-005 (1). yet loSs gain.time for the month usually ~ts therefrom.
Pnp8nldoD ofDisciplinary Reports 33-601.304

. .

.

Only one violation shall be included in eaCh disciplinary report. Separate disciplinary reports shall be nsed for

multiple offenses.
Subsection (2) provides what shall be in the statement of&cts on the DisciplinarY Report. See Gill v, Cmsb,y.884 So.2d
442 (FIa. III DCA 2004).
" :
.
..
' ..
I·

Inmate DisdpUne -mvestigadoa 33-601.305
The investigating officer shall initiate the investigation of the iDftaction within 24.hours of the writing of the
disciplinary report. The investigating officer has numerous responsibilities under this particUlar rule.
.
Pursuant to Wolfv. McDonnell 418 U.S. 539, 94 S.Ct. 1963,41 L..Ed. 2d 93S (197~), an inmate charged with a
disciplinary infraction is entitled to:
(1). advance written notice ofthe charges;
.
(2) an opportunity to call 'Witnesses and pxesent documentary eviden~ when it can be done safely; and
(3) a written statement of the .evidence upon" which the disciplinary team reliecl and the reasons for its disciplinary
action.
..
.
" .
.'. .
.
~da .Adminialrative Co4ie Rules 33-601.305 (2) (d) and (3) ~ the Department's investigating ofticer:to,
among other things. ask the inmate ifhe has any witnesses to off~ on his behalfand interview "additional shift: inmates,
and other ~ who have information pertaining to the infraction." If the d.isciplinmy team etenies an inmate's
witness or evidence request, it must explain its reasons for doing so. See e.g. Plymel V, Moore, 770 So.2d Z42 (Fla. lit
11a
DCA 2000); Giordano v' Dixon. 744 So.2d 1024 (FIa. 4 DCA 1997); Dmartment'Of Corrections y. Marshall. 618
. So.2d 777(FJa. 1st DCA 1993}; Holcomb y. Department of Corrections. 609 So.2d 751 (Fla. lit DCA 1992); See
gen!'J'ally Franp. y. Moore, 778 So.2d 1003, 1004 (FIa. III DCA 2000); &j?osito V, McDonOugh 971 So.2d 203 (Fla.
III DCA2007), and those reasons must be valid, Mariah v, Moore.. 765 So.2d 929 (Fla. lit DCA 2000).
..
While a disciplinary team may exclude testimony if it is immat!'rial. iJTeJevaot, or fePi'litive, they should not.
prejudge the weight to be given to testimony of evidence prior to it being presented. The·Disciplinary team C8IIDOt deny
prisoner's request for additional witnesses on ground that testimony would have been contrivecl:o Mariah,Supra.
The prodnetion of evidence. request for witness statements and related matters .are largely dependent on the
investigation i t s e l f . ·
"
14 -.
.
.
I

I

..

Florida Prison Legal Penpeetives
. This is a highly critical stage in the disciplinary process. The Investigator/Staff member who is assigned to
conduct.the investigation have been known to impede the investigation process. by notins-for example. the ibmate &iled
or retbsed.to complete and sign the relevant witness Form(s); refused investigation. participation etc., eta.

,As a precaution to decrease at eliminate the intentions 'of this type of unethic81 (official) Conduct eneis well
to start a paper trail. using an inmato request addressed. to the colonel. Major,. Asst. Warden, Head of
Classification, etc.' aIIeging (as a fonnal request).tJiat desPite any potential. ,inconsistencies in the investigative
record/pl'QCCSs. the, inmate is not refusing to participate in the process. is not Waiving the right to seek witness ~ents
or the production of evidence, and that the D. R. team ~uireBJ;ld review documentary evidence, daily logs in special
hoUsing units, etc. Use a tri-colored DC6-236 Inmate Request if aVailable and keep the pink copy.
Inmate DisdpUne- Use OfCoDfi~endaJ InformanD 33·601.3055
'
The Investigator bas some specific obliSations when investigating confidential inft>nnant (snitCh) evidence..
The Investigator shaH interview and o'!l~ asuitement from the informant, which shaH_be reamlecfin the
disciplinary investigative report.. The infomiant's signature is not required and is only identified by hislher social
securitynwDber.
"
'.
,'
.. , '
, ;
,,
• There is sPecific documentation that is required to be included iI;1 the investi~ve report before confide;ntial
informant evidence can be used in D. R. court (1) the Investigator shaH document wbetJU:r the informant bas direct or
indirect lcno~ledge orthe case. (2) whether the informant has provided information in"the ~ast, and (3) whether the
information has been reliable. Unreliable. or b o t h . '
.
The informant's history and· hislher reliability cannot jttst be aIIeged. It must be specifically documented. If the
informant bas providedconfidential.infonnation in the past, the Investigator will document to whom and confinn it with •
the staffmember and reCord it in the discipliDary investigative report. '
.
'
~
process
requires
that
a
confidential
informant's
credibility
must
be
independently
confirmed
by
officials.
,
Kyle v!'Hanbeny~ 671F.2d 1386, 1390 (illb Cir. 1982).,
" "
'
. , It's also'debatable whe'her a D. R. based upon confidential informant's tCstunony) without other evidence of
guilt, amounts to gi~ one prisoner supervising or4isCiplinary control over another prisoner. McDuffie y, Estelle, 935
F.2d 68268~ 0.6 (Sdl Cir. 1991). See CJuq)ter33-602.101 (9) (no Inmate shall be given control or authority over other
~

~.

.

'

Rule 33-601.307 (3) (h), prohibits·the Disciplinary Report T~ 'from baSing a finding of guilt on snitch
testimony that is' uncolTOborated by some other evidence. It also requires the Disciplinary Report Team to
independently assess the informant~s reliability and IP8Y not accept assurance from an officer as to ~ authenticity ofthe'

informants infonnation.

m

"

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NATIONAL CLEMENCY PROJECT '
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Phone: 407-579-5563

15

Florida Pri~on Legal Penpectives

Th8followlng are summaries ofr~ent state andftderal cases that may be useful to or have a signiflcant impact onFlorJdaprisoners.
Readers thovld q/ways read tlrefUll opinion as published in the Florida Law Weekly (Fla. L WeeKly): Florida Law Weekly Federal
(Fla. L. Weeldy Federa/),' Southern Reporter 2d (So. 2d): Supreme Court Reporter (S. Ct.): Federal Reporter 3d (F.3d),· or the
Federal Supplement id (F.Supp. 2d), since these summaries arefor general information oniy: . '
,
,

Florida Supreme Court
Stale v. ~ltell. 33 Fla. L. Weekly
S2SS (Fla. 4124/08)
.
. The Second District Court of
Appeal had reversed Charles A.
Kettell's conviction opining that a
violation of Florida Statutes. section
790.19. wantonly or maliciously.
shooting at, within. or into a
building, required more than mere
proof of the shooting. See: ~tte// v.
State. 950 So.2d 50S (Fla. 2= DCA
2007).
.
The Second District's .opinion,
however. was d~y and expressly
in conflict with the Fifth District's in
Holtsclaw' v. State. 542 So.2d 437
~Ia. Sib DCA 1989).
The Florida Supreme Court, upon
~viewing the conflict, held that it
was error for the trial court to
instruct the jury in Kettell's case that
the statute is violated by a person
who shoots at" within, or into a
building per se, and the error was not
harmless.
It was held that the wanton or
malicious intent element. ofthe crime
define4 by section 790.19, Js not
established solely by evidence that a
defendlll1t fired a shot at, within, or
into a building. The State must also
prove that the shooting was done
wantonly or maI~ciously as those
tenns are defined in the standard jury
instructions.
There fore. the Second District's
decision was approved. and the Fifth
District's was disapproved. Kettell's
case was remanded for' further
proceedings consistent.,with the
FI~rida Supreme Court's Qpinion.
State v. Johnson, '33 Fla. L. Weekly
16 s265 (Fla. 5/1108)

The Second District Court of
defendant, defendant would have
Appeal in Lorenzo C. Johnson,'s case,
exercised his right to trial.
Johnsan v. State. 929 So.2d 4 (Fla:
.Such a claim must be filed with
2= DCA 2005). opined that the
two years after the conviction based
admission of a Florida Dept. of Law\ on the plea the def~ndant is attacking
Enforcement ,lab report establishing
becomes final. It was further noted
the illegal nature of substances
however, although the defendant' in
posSessed by. a defendant' does
thi~ case, Ey. filed his motion after
violate the confrontation clause and . the two year period, his' motion was
Crawford v. Washington, 541 U.S.'
deemed timely because at the time of
36 (2004), when the person who
the filing district Courts had held in
performed the lab test did no,t testify.
similar claims' that the clock started
A certified question as. to the
on the date defendant discovered the
SeCond District's decision was filed' . enhancement in his sentence. .
and reviewed by the Florida Supreme
Court where the decision was , Jackson v. State, 33 Fla. L. Weekly
approved.
S357 (Fla. 5129/08)
In Bertha Jack$on's' case, the
Eyv. Stale, 33 Fla. L. Weekly S321
Supreme Court of Florida held that
(Fla. 5/15/08)
.
the denial'of counsel at sentencing is
.!1 Robert Ey's. case, the Florida , not a "sentencing error" under rule
3.800(b)..
~reme Court held that when a
defendant has committed two crimes
Denial of counsel ,at sentencing,
and infonns his attorney about both
occuning
during
the
while
sentencing process, ,is not an error in
of them." the attorney's en-oneous
an 'ord¢r' @ntered as 'a result <of the
advice that dofendant'splei:' in one
case could not be used to enhance his . sentencing process. See: PIa. R.
sentence in the other constitutes . Crim.P. 3••00 c.ourt cmt. It was'held
<ineffective assistance ofcounsel.
.: in, this cge that to JSSert ~cb.a claim
To raise a facially spfficient ,~lllim , on appe8i, 110 motion under' rule
on sucli an. issue, the <Florida
3.800(b) need be filed. Such errors
Supreme Court outlined four things
remain " subject. to ',the
the defendant must plead: Before
conternppraneousbbjectloJ). rule; if
entering the plea, the' defendant
not preserved at trial.· they may be,
informed his defense counsel that he . reviewed on appeal only for
committed another crime for which
fundamental error.
he had not yet been sentenced;
<
As to Jackson's case, it was found
defendant explained to Counsel the'
that the claim did not meet
nature of the crime; The counsel
fundamental error status. because
erroneously advised defendant about
counsel Was found only to be absent
the potential use of the conviction to
for only part of the victim impact
enhance a subsequent sentence for
testimony during the sentencing
that other crime (explaining why the
process.
advice was erroneous); and. Had
counsel .not . erroneously advised·
I

The

Florida Prison Legal P~rspectives
felt a .Iump in the pocket that he
believed to be some sort of narcotic.
Upon removing the item from
Evans v. State. 33 Fla.L. Weekly
Perkins' .pocket, the officer ob~rVed
01066 (Fla. Sib DCA 4/18/08)
a folded dollar bill with less than a
. Robert L. Evans' appealed the'
summary denial of his rule 3.850. gram of powder cocaine wrapped
inside. '
motion where. he had claimed
, The trial court in denying Perkins'
ineffective assistance of-counsel for
suppression
motion, relied upon the
. failing ~ object to - a vindictive
'~plain
feel"
doctrine,
and on appeal,
sentence.
the
"plain
feel
doctrine"
exception
The appellate court opined that it
was
reviewed,
citing
Minnesota
v.
was error for the lower court to deny,
Dickerson.
S08-U.S.
366
(1993).
Evans' claim where it failed' to
In Dickerson, it was held that
~nduct a totality of circumstances
because~the
object in Dickerson's
analysis. . Such determination is
pocket
was
not "immediately
needed to show whether a sentence is
apparent'"
as
to
what
lhe object was
vindictive where a trial court has
and determining that the pocket did
inserted itself into plea negotiations
not contain any weapons, an officer's
and imposed a harsher sentence after
~ntinued exploration of the pdcket
a defendant's rejection of the plea
exceeds the scope of the search
bargin;
After its own analysis of Evans' ' permi~ by'Terry V. Ohld, 392 U.S.
1 (1968, thus violating Dickerson's
sentencing, the appellate court
Fourth Amendment rights:
"
determined the sentence imposed
Perkins' case was found to be
upon him was vindictive. Evans'
Similar. The appellate court noted
sentence was reversed and the case
that it .was only after the officer
was remanded for ~ re-sentencing
further searched Perkhls' pocket and
before a different lower court judge.
.ran his fingers over an unktJown
object did he make a determination
Perkins v. State, 33 Fla. L. Weekly
as the· object being contraband. As
01102 (Fla. lit DCA 4/23/08) .
such,
it was opined that the~lain
. Gregory Perkins appealed his
feel"
doctrine
did not apply aiiat did
,conviction of possession of cocaine
not
validate
the officer's further
where it was upheld by the lower
search
and
seizure
ofthe object.
court subsequent to denying Perkins'
Perkins'
conviction
was reversed
suppression motion.
and
the
case
was
remanded
for the
The -background of this case
..lower
cOurt
to
grant
the
suppression
began when police officers stopped
motion.'
.
the"ve,hicle Perkins was a passenger
. in. An· officerl then opened the
Harrington v. State, 33 .Fla. L.
passenger door to advise Perkins that
Weekly .01164 (Fla. SIbOCA
the vehicle was going to be searched.
4125/08)
:
During that time, the officer
Katrina Harrington appealed her
observed a 'pocketknife in the front
convictions' of' trafficking 'in
, pocket of Perkins' pants, whereupon
methamphetamine and possession of
. Perkil1$ was warned to keep his
paraphernalia.
hands out of his pockets. However,
On appeal, it waS opined that the
Perkins tailed to comply With the
state failed to offer any· independent
officer's warning after, being advised
proof that Harrington was a joint
twice by the officer'to keep his hands
occupant of the house in which the
away trodl his pockets. At that point,
drugs were located.,' or that
the officer conducted a pat down
Harrington
possessed the knowledge
search of Perkins to determine
of
and
the·
abi~ity to control the
whether he was trying to hide
drugs.
See:
Brown v: State, 428
another ,possible weapon. As the
So.2d
250
(Fla.
1983). There was no'
officer removed the pocketknife, he

District Courts of Appeal

•

.

.

direct evidence introduced at trial to
prove Harrington also had access to
the looked safe where the drugs were
found or the knowledge of the safe's
contents.
It was ,further· opined that
evidence was in sufficient to show
that the alleged paraphernalia'items
that were 'found had been' used, or
were intended for use, 'for illicit .
purposes.
Harrington's
. Accordingly,
.convictions were reversed.

Grayv. State. 33 Fla. L. Weekly
01261 (Fla. 41b DCA Sn108) .
RaShion· Gray appealed his
convictions from a no contest plea
and argued that the trial court erred
'in denying his motion to suppress all
physical :and testimonial evidence
against him.
'. Gray was convicted of burglary of
a dwelling while armed, grand theft
of 'a firearm, possession of a firearm
or ammunition by a convicted feloD.
criminal mischief, giving a false
name, carrying a concealed firearm,
and carrying a concealed weapon.
The background that led to'Gray's
arrest began when h~ was called over
to talk to a police officer who had
observed him and' opined his actions
wa~king down a driveway were
suspicious. After Gray consented to
questions and search for weaPons
on his pe~on, ito weapons were
found, the officer allowed Gray to go
on his way.
,
Subsequently,however, because
the situation seemed a "little odd."
the officer returned to the area where
Gray' was' standing before he called
to him.. There,. he found a black
powder pistol laying on the wet
. grass, the pistol was dry. The officer
. then placed a radio transmission out·
to other officers in the area to stop
Gray, a. BOLO. Upon hearing the
'BOLO, another officer spotted Gray
_and stopped him. The officer I,tad
Gray to, place his walking stick on
the hood of the police car then
~andcutfed Gray and read him his
Miranda rights..

a

17

1

Florida Prison Legal Penpectives
When Gray responded to the
officer asking for his name, the
officer told him that he did not
believe him, where upon Gray
admitted that he gave a false name
because he had walked off a work
program. Gray further confessed that ..
he committed a burglary, a burglary
_that the police had no knowledge of
prior to the confession. The arresting
officer then opened Gray's walking
. stick where he found a sword inside
of it. Gray then led the officer to the location of the burglary he
committed which led to the
discovery of additional incriminating
evidence.
On appeal, it was pointed out that
there are three levels' of. policecitizen encounters under Florida law.
See: Popple v. Stale, 626 So.2d 18S,
186 (Fla. 1993). The first is a
consensual encounter, during which
a citizen can either comply with the
officer's requests or ignore them and
leave.
.
The second level is an
investigatory stop. -under Terry v.
Ohio, 392 U.S. I (1968). In an
investigatory stop, th~ officer must
have a reasonable suspicion that a'
person has committed, is committing,
or is about to commit a crime.
The third level is an arrest, which
must be supported by probable cause
that a crime has been or is being
·committed. Reviewing whether
probable cause existed at the time of '
arrest requires a very fact-specific
analysis. See: MarylaiuJ v. Pringle,
540 U.S. 366, 370-71 (2003).
After reviewing these levels and
its analysis of the case, the appellate
court determined.it was error forthe
lower court to have denied Gray's
suppression motion. The initial
officer. stated at the suppression
hearing that he could not see what
Gray was doing when. he saw hi,m
walking on the driveway. The
arreSting officer presented no'
evidence that he had knowledge that
Gray had committed or was
committing a crime. Likewise, the
arresting officer did not have
sufficient
knowledge
and
18

information to believe dray was
carrying a concealed' firearm or
weapon. The pistol was found on the
grass after Gray left the area, and the
initial search of Gray's person
revealed no weapons or-firearms. As
such, there was a lack of requisite
probable cause for Gray's warrant
less arrest. See: Berry v. Slate, 493
So.2d 109~, 1100 (Fla. 4lh DCA
1986);
Gray's case _was_reversed and
'remanded with directions for the
lower court to disch~e Gray.

Christner v. $tate, 33 Fla. L. Weekly
01333 (Fla. ~nd DCA S/16/08) ,
~raQdin Christner appealed from
an- order in which the lower court
denied one ground of. his rule 3.8S0
motion and struck the second ground
as facially insufficient with leave for
Christner to file an amended, facially
sufficient motion within 30 days,
should he choose to do so.
•
The' appellate court noted that
Christner did not avail himself of the
.opportunity to file an amended
motion within the time prescribed.
As such, it was opined .that .it
presented ajurisdictional problem for
the appellate court. In reviewing this
problem, the Second District noted
that the .Fifth District opined that an
unfavorable ruling. on one or more
posteonviction claims with leave to
amend is not an appealable, fmal
order. See: Howard v. State, 976
So.2d 63S (Fla. Slh DCA 2008). The
Second District, however, could not
concur that they should precipitously
dismiss such appeals, placing the
burden on the defendant to obtain "a
denial of the motion that does not
include leave to amend." Id at 636.
In Christner's case it was noted
that he could not he found entirely to
blame for filing a premature appeal
of an order that was'not yet final. He
simply obeyed the- circuit court,
which its order stated "this is a final
order" and erroneously informed him
he had 30 days to appeal the. ruling.
As such, the Second District opined
that lower court judges would be
well advised to expressly inform

movantS that such im order is "not
appealable at this time."
Having confirmed Christner did
no~ take advantage ofthe'opportunity
to amend the second ground, the
appellate court elected not to dismiss
the appeal as from an order that is
not final. Instead, it was directed that
the lower court should enter a final
order disposing of the motion within
thirty days. Such rendition will
rescue the premature appeal from the
jurisdictional problem. The appellate
court could then consider both the
lower court's denial of one claim
addressed on its merits and· review
the detennination it make on the
other claim as being facially
insufficient.
It was stressed that movants
should understand that when they
elecl nol 10 amend a motion when
given that opportunity, the order that
will be reviewed is a final order that,
if affirmed, will generally nor' allow
them 10 relitigate additional
.additional
_postconviction
postconviction issues at a later time;
The . Second Districes opined
procedure in this case was adopted
by it for all appeals, subsequent
Spera v. Stale, 971 So.2d 754 (Fla.
2007),- that are brought prematurely
to it ,after it has been confirmed an
amended claim was not submitted.
Further, if the appellate court
determines that an appellant in a
similar· postconviction appeal has
filed an amended claim 8J1d has not
yet been finally detennined by the
lower court, the appeal will be
dismissed with directions to the
appellant to appeal the .fmal
disposition and hence capture review
of all claims raised in the' initial
motion and the amendmeht. If the
appellate court determines that an
amendment has been filed and finally'
detennined by the lower court, an
order will issue for SUPPlementation
of the appellate record, 'summary or
otherWise, with the final, appealable
order, thus J1laturing the premature
appeal.

Florida Prison Legal Perspectives
Accordingly, the lower court was
directed to enter a final order on
Christner's motion within thirty days.
Lyons v. Jackson C.I, 33 Fla. L.
Weekly 01343 (Fla. lSI DCA
5/21/08)
George Lyon sought a mandamus
writ on ~e grounds that the Jackson
County Circuit Court Clerk required
him to pay an administrative fee and
complete an· application for a
determination of civil indigence
status before processing his tort
complaint.
The respondents in Lyon's case
conceded error on the basis of the
appellate . court's
ruling· in
Musmacher v. McDonough, 969
So.2d 1101 (Fla. 1st DCA 2007).
There, it was held that the tendering
of any filing fee is not a precondition
to filing a complaint in that the
circuit -court clerk has a ministerial
duty,to accept a complaint for filing.
,Accordingly, Lyon's' mandamus
petition was granted, issuance of the
writ was withheld, however, because
. the court clerk will process the
complaint,in an expedious manner.
Hall v. O./ftcer Knipp, Flo. Dept. oj
Corr., 33 Fla.L. Weekly 01348 (Fla.
1st DCA 5/21/08)
Wendall Hall, as an indigent
prisoner,appealed the dismissal with
prejudice of a complaint that alleged
an officer of Fla. State Prison
wantonly, maliciously, or' in a
manner' exhibiting wanton and·
willful disregard. of human rights,
safety,
or property, withheld
blankets, bed sheets, .and clean
clothing for some four and a half
months, causing him injury and
illness.
The lower court dismissed die
original complaint without prejudice;
then dismissed the first amended
complaint with prejudice, all
pursuant to section 57.085(6),
Florida Statutes (2006).
It was opined that sovereign
immunity barred the claim against
DOC. as such, the lower. court
properly dismissed that part o~ the

discovering the mi,advise. Galindez
V. State, 909 So.2d 597. 598 (Fla. 2nd
DCA 2005), is one of many.
,However, the Fiorida Supreme
Court rejected that view in Ey v.
State, 33 Fla. L. Weekly Sl44, Sl46
(Fla. Feb. 28, 2008), [and revised-on
rehearing at 33 Fla. t. Weekly 5321
(Fla. May 15, 2008}-which has
been noted wi~in this issue of the
FPLP unde.. the Supreme Court of
Florida's Notable Cases section.] The
appellate court noted though,
"That... is not the end of the matter."
In iEy it was ~cognized that an,
opined, rule conttary to the one
adopted in, Ey had previously been
applied by the district courts. See:
Ey, 33 Fla. L. Weekly at SI46 and
S323. As such, Ey's motion was
. deemed
timely:
Similar
ci'rcumstances were found to exist in
Singleton .and the appellate court
Singleton v. State,,33 Fla:'L. Weekly
opined that accordingly~ Singleton's
Dl366 (Fla. 2nd DCA 5121108) ,
motion should be found timely filed.
Michael Singleton presented a
Therefore, Singleton's case was
timeliness issue of his rule 3.850
reversed and remanded for the lower
moti9n to the appellate court that he ' court to consider· the claim. On
filed more than seven years· after his
remand~ the lower court was directed
,Judgment and sentence became final,
to either attach portions ofthe record
when- he discovered the ineffective
that conclusively refute the claim or
assistance ofcounsel ground.
conduct an evidentiary hearing on
Back in 1.997, Singleton was told
the issue.
'
by his counsel that he,~ould be
eligible for parole after twenty-five
Harley v. State, 33 Fla. L. Weekly
years, if he were found guiltY at, trial
01474 (Fla. 1st DCA 6/5108)
.on his capital sexual battery charge.
Damion Harley sought a direct
~ecause of that advice he rejected
review of ineffective assistance of
the state's favorable plea offer of ten
counsel issues.
, The' appellllte court noted that
years prison, if he plead guilty to the
lesser-included offense of lewd and
Harley's claims were _cognizable on
lascivious battery.
appeal. It was found to be apparent
Subsequent to· Singleton being
on the face of the record' that counsel
found guilty at trial, over sev!'n years
was ineffective. However. there was
later.
he
discovered
through
no 'merit to' the claims. Harley failed
information requested and received
to demonstrate that. but j01' dejense
by the Florida Parole Commission · counsel's deficient performance, the
that he would never be eligible' for
results ojthe proceeding would have
.
parole. Thus. he filed his rule 3.850 · been different.
motion.,
District Courts have opined that · [NOTE: Whether on a rule 3.850
postconviction motions based on
motion or on direct review. one must
such claims of counsel rllisadvise
always show both of the prongs in
concerning gain time eligibility or
Strick/and v. Washillgton, 466 U.S.
the forfeiture of gain time were
668 ',(1984), . w~en
claiming
timely if filed within two-years of
ineffective assistance of counsel. &I

complaint. However. the officer was
not immune from suit where
amended complaint alleged that the
officer wantonly· or maliciously
chose to breach a common law duty.
of
reaSonable"
care
posing
unreasonable risk of, and actuallycausing, physical harm.
In other words, it was alleged that
Officer Knipp acted ouiside .the
SCQpe of his employment-in the
sense of not exercising power
lawfully vested in him-and· was
guilty of "an unlawful usurpation of
power the officer did not rightfully
possess." See: McGhee. v. Volusia
.Co., 679 So.2d 729, 732·(Fla. 1996).
'The lower court's judgment was
revers~ insofar as it dismissed the
amended complaint against Officer
, Knipp individually.and the ·case was
remanded for further proceedings.

..

19

Florida Prison Legal Penpectives

I,

AZ - On May 8. 2008 six,prisoners
were airlifted, for medical treatment
from the med'ium-securi~ facili~ at
the Arizona State Prison ComplexDouglas. Officials say that the
prisoners received injuri~, after a
series of small fights broke out at the
prison.
.
CA - On May 27. 2008. the San
Francisco Chronicle reported that
DOC officials are. bracing for more
prisoner violence as they prepare to
'obey a mediation agreement, and
desegregate cells. II We will have a
spike in fighting becaUse we have
races that d~n'1 get along. if it was
up to us we'd keep it.the way it is,"Lt.
Rudy Luna, Asst.W~en at San
Quentin State Prison. told the
Chronic/e. Prison officials say that
they will evaluate each prisoner. and
, those, who qualify for integration. but
refuse. may face disciplinary action.
CA' - During the third week of June
2008. San Diego jail officials
revamped their .phone system to
ensu~ that calls between. prisoners
and their attorneys were not being
recorded. This move. came after
attOrneys complained that the jail's
policy to record all calls violated
their attorney-client privacy rights.

hospitalized while 12 were. treated at
the scene.
'"

<:;0 - On May 20. 2008. a federal
jUtf. in Denver sentenced prisoner
Ru~:

Cabrera Sablain to life in
prison. Cabrera was charged with
choking and disemboweling Joe
Estrella in their cell at the federal
penitentiary, il) Florence. The
incident took. place in 1999.
P{Osecutors bad asked the jury to
sentence Cabrera to death.

FL - A judge sentenced a former
Coral Springs mayar' ,,00 June 3.
2008. to 4 1/2 years in prison
followed by 30 years of sexual
offender probation after pleading no
contest to child molestation 'charges~
'John Soinmerer, 60. was accused of
molesting a girl under the age of 12.

CT - Justen Kasperzyk, a former
. New Haven detective. ,was sentenced
on May 27. 2008. to 15 months in
federal prison for planting drug
evidence and stealing money from a
c~me scene. Last year. Kasperzyk
pleaded guil~' to cOnspiracy to
violate civil rights and. theft of
government property.. .

FL - Bennett Brummer. the Dade
Courity's·public defender. announced
on June 4. 200'8. that his office plans
to refuse most felony cases du~to
state budget cuts. Brummer said that
his attorneys are obligated by the
Constitution to provi~e effective
legal representation, however, his
office is short-staffed, and under
funded. This means that his attorneys
coul~ not effectively cover their
caseloads, said Brummer.

CT -. A state prisoner. Waldemar
Rivera, 28. was charged on June II.
2008, with the murder of another
prisoner. Officials charged Rivera for
the murder of Kevin Cales which
too~ place last month at, the Suffield
Prison. The motive for the fatal
beating has not been determined, said
officials.

DE - On May 21, 2008. a retired
police officer and former ci~
'CA - LevarWashington, 30. was
administrator. John' Manning., 61.
sentenced to 22' years in federal
prison on June 23. 20PS. for plOtting, pleaded guilty to one count of
possessing
child
pornography.
while incarcerated at sarita Ana to
Federal agents found the images on
attack mili~ sites.. bftici~ls say
that Washington. was part of a prison _ ~mputers seized at Manning's home.
Manning resigned from the personnel
gang cell of radical Muslims .who
. planned attacks and .intended to
department in April after being on
suspension since October 2007:
finance them through robberies:
CA - On June 24.' 2008. a bus
carrying an inmate firefighting crew
overturned in RiverSide'County. The
incident left i6 people injured. two
critically. said a spokeswoman for
the coun~. Four people were
20

who served as Delaware Correction
Com-missioner in the 1970s. Vaughn
died last year after he resigned from
the state senate.

DE - On June 4,2008. Gov. Minner
signed legislation formally changing
the name of the state's largest prison.
The name of the Delaware
Correctional Center near Smyrna was
named in honor of James Vaughn,

FL - On June 17-18. 2008, the State
of Florida held its first statewide
Restoration of Civil Rights Summit
at the state Capitol building in
Tallahassee. The Summit's shortterm goal was to gather input from
other agencies' and communi~
organizations to identify barriers to
successful re.entry of ex-offenders to
society. The long-term goal is to
develop a formal and comprehensive
re-entry strategic plan to reduce
recidivism. Both Gov. Charlie Crist
and FDOC Secretary Walter McNeil
attended the Summit, which was
funded. along with other re':'entry
efforts, by a 540,000 grant from the
Annie E. Casey Foundation. Florida
currently has over 96.000 prisoners,
with about 35.000 being released
from prison each year. Almost a third
of prison' releases return _to prison
within, 3 years. In addition to the
Summit, in June SeCretary McNeil

Florida Prison:Legal'Perspe~tives .
appointed an Advisory.' Council
consisting of' legislators. law
enforcement, social and community
workers to. assist the FDOC in
. developing strategies 'to reduce
recidivism. The Council. in addition
to helping 'develop strategies. also
allows the state to qualify for federal
funding under. the' Second ChanCe
Act that was recently signed into law
by President Bush. The Casey grant
will alSo be· used to fund' the
following'aids~'t;, -

mid-J~ne 2008.. Guards.opened th~
, letter beeause it. didn't . have .the
sender's name. Officials then
investigated the name where the
letter was being sent and learned that
it was Robert Rackham's father.
More' methamphetamine was found
in. Rackham'scell. said authorities.

initial'health examinations within the
required time, said the conuD1ssion.
'ME- DOC said on June 23, 2008,
that a 'website which will list state
prisoners and probationers will be up
. in. about two months. The site will
include' projected release. dates,
names, physical descriptioliS, birth·
dates. and offenses.
.

KS -'On May 27, 2008. a woman
• who was a dog trainer ~and helped
MT - DOC officials, say that two
John Manard escape from.pri!'6\\' in a
dog crate in 2006. was releaSed from . female prisqners'~ on May S,
federal prison. Toby Young served , 20Q8,from the Monta,na W~men1s
, Prison. Alicial, Luke, 27, and Jenny
~early two. y~ in ~tate and federal
• An
.On-line
Resource.
prison for helping Manard ..escape
Terrell~ 31, were kitchen workerS and
Directory which will in~lude.
from the Lansing. . COrfe~tiorial
apparently left through a receJving
info from all 61' counties
Facility. Young,must also serve three
area, said officials. The two prisoners .
housing. '. jobs.
about
years ofprobation.'
were serving sentences for escape at
education. job' .training.
the time the incident took place~' .
mental health and substance
KY ,.:' The Sheritrs Department
abuse. clothing, food and
announced on June 2, 2008, that a
more; ,
NV-· .The Nevada State ·Prison,.
Boyd County. Jail guard. f-aces drug
which dates back, to the 1860's, may
• " Virtual' 'Case Managers
charges after, allegedly. purchasing
.close ,by, next January due to'budget
contactable by phone. fax or
prescription pills that he planned to
cuts. Officials said on June J8, 2008,
. email during business hours
sell to inmates. Loval Marshall, 37,.
that this would save $19 million a
to.provide resource'info; ..
year in operation costs.
• . Focus Group~ ~o help .ex- . met with an informant and bought 13
.oxycodone· pills.. Marshall' then led
offenders reintegrate; and '
police on a,slow.;.speed chase before
NY- The U.S. Attorney's Office
•. A pocket-siZe resource guide
throwing the pills out the wiqdow, .. announced on May 21, 2008, that the
given to' prisoners upon'
.said officials; .The pills were
state must pay $972,000 to 23
rel~ providing into on
correCtion guards .who accused the
recovered by authorities.
housing. e~ployment. health
state of pregtiancy discrimination.
care, family issues. etc.
KY - The state's Criminal. Justice
This pay· would include back pay,
Counc,il began studying the state's
interest, and damages. State officials
GA - A jury convicted a former
also . undergo . antimust
after'
Gov•.
sentencing
,practices
Atlanta polite officer. Arthur Tesler,
Beshearcalled
on
lepl
authorities
to
d~crimination
training. To, no
on' May 20, 2008, of killing a 92find
ways
to,ease
the
prison
system's
surprise,
DOC.
denied' the
year-old woman after a. botched drug,
on
.
financial
,burden.
Beshearsaid
claims.
discrimination
iaid. The incident took place.in'2006
June 8,· 2008, that . the . prisoner
when plainclothe$ officers used a' n(>
population was increasing at the
NY - During the first week of June
• knock warrant 'to raid Kathryn
in
the
nation.
By
Dec.
1,
highest
rate
2008, the New YOlk Times reported
Johnston's home. When the officers
the
council
must
report
~ack
with
that 'state prisoners. were.. training
burst in Johnston 'began fjring her
recommendations.
service dogs forwoundeQ veterans
gun at the officers.' police then' fired
.
'
.
,
.
.
who
haye. return.ed from Iraq and.
39 bullets. said prosecutorS. The
LA ~ The National Commission on.
Afghanistan. The program is' called'
warrant 'about, drug dealing was
Correctional Health Care re~easedits
Puppies' Behind Bars. New Jersey
based on false inf(mnation. said
findings on.· May .19, 2008, ~m a
and 'Connecticut prison~ also have
authorities. Two other officers have
.review.. it conducted in, the ~~w
similar:programs. There are about 80
pleaded guUty to charges of
Orleans Prison. The commission
Labradorsand Golden Retrievers at
manslaughter and federal, civil rights
found
that
the
prison
was
not
doing
male and. three female prisons,
four
charges. Tesler faces up to five years
~nQugh
to
care
f()r
prisoners
who
,
Times. Prisoners teach the
.
said.
the
in prison.
.
.sl,lffer from mental illness. The
dogs 82 ~mmands • that can help
m - An iqrnate at the ,Twin Falls prison lacks. enough. mental. health individuals, who are' missing.8 limb
counselors and fails to· complete
or need wheelchairs,. the Times
County Jail tried to seridhis father
reported.
methll.Dqll}etamine in a' letter during
21
" ' ,

,

Florida Prison Legal Penpectives
OR ~ A judge, on June 10, 2008,
nded that the state's methOd of lethal'
injection was unconstitutional. Judge
James Burge said that the state's
lethal injection procedure .doesn't
provide the quick and painless death
required by state law. The state ~es
the same th~rug cocktail held
constitutional by the U.S. Supreme
Court tn Kentucky, however, the'
procedure is not identical.

22.

took two hours last week to restore
order at maXimum-security Lee
Correctional ID5titution, said Ozmint. '
However, he' gave no further details
about the incident.

TN
The state's correction
commISSioner,
George
Little,
announced on June 8, 2008, that the
state's 16 priSQns will work together
.growing v~getables' best suited to
their-.\~tiop.·This move came in an '
effort to reduce the higher costs· of
OK - Corrections' spokesman Jerry
Massie said during a press release
.buying an!! transporting food to the
that more than a doze!) prisoners
prisOns. The vegetables will be
attacked each other with makeshift ' shared with other detention centers.
weapons at the Oklahoma' State
Officials saY' thattrilcks that already
Reformatory on May 19; 2008,
carry prepared food to the prisons
leaving two dead and' 13· injured. , will be used to .transport the produce.
Fights broke out in 'recreation yards
to the state's 16 prisons;
of two of the prison's six housing
TX • As of June I, 2008, about a
units for about five minu~s. Most of
the injured prisoners suffered cuts
dozen Texas jails started allowing
inmates to receive e-m,ails, even
and stab wounds, said Massie.. Prison
'staff were not injured during the
though they will not have internet
incident. '
, access. A Dallas-based website will
allow jail officials to print the .emails and deliver them. Inmates can
PR - Some Puerto Rico public
reply by filling out a reply form
officials, including the island's
w~ichofficials will scan and e-mail
former health secretary, said on June
18, 2008, that they will push to
back.
legalize marijuana. The groups claim
TX - The U.S. Supreme Court
that this move will redue.e the prison
population as 24% of the ' 13,500
reversed on June 16, 2008, the case
of the longest-serving prisoner on
prisoners in the system have drug
Texas' death· row. Ronald Chambers,
charges. These officials say that
53, has'been on death row for over
marijuana would be taxed like liquor
32 yearS; The Court, without
and. tobacco, with proceeds, going
comment, remanded the case to the
toward drug treatm~nt progra~s.
trial court over questions jurors used.
in deciding Chambers' death
PR - Federal authorities arrested six
sentence. '
Puerto Rican police officers on June
24, 2008, for building false cases and
TX .' Prosecutors say that the new
possessing cocaine with. intent to
DNA tests that freed ~omas
distribute. The officers'plante~ drugs
McGowan, who did about 23 years
•on at least three people from 2002 to
in prison for rape, implicated another
2005, said federal authorities. Last
prisoner. The new tests matched
year, four officers were arrested on
prisoner Kenneth Woodson, who is
s~i1ar charges. The o~cers'in both
ilready serving a 30-year sentence,
incidents worked at the AreCibb Uhit
said officials. McGowan was
released during the month of April
SC - DOC director, Jon Ozmint, said
2008. Woodson will not be charged
during Ii brief statement, on May 26;
because the statute of limitations has
2008, that lack offundihg leaves his
expired, prosecutors said.
officers struggling to prevent escapes
or respond quickly to emergencies. It

'.
UT - DOC 'spokeswoman Angie
Welling said on June 16, 2008, that
DOC has struggled to keep staff
members because many have left to
otherjobs for higher pay. The system
has about 100 positions open. The .
Dept. has asked lawmakers for $3
million fO,r salary increases.
,

,

VA • Following Gov. Mark Warner's
order in 2006 to review old cases for
DNA tests, on June 18, 2008,the
state's Forensic Science Board 'began
searching· for voluDteer lawy.ers.
These lawyers would help the board
locate ,about ,900, felons Who were
convicted between 1973 and 1988,
some wrongly convicted., Warner's
order came after a sample .test of 31
felons cleared two ex-prisoners of
rape charges.
WI - A judge ruled on June 4, 2008,
that state prison officials had violated
a prisoner's free speech rights by
,denying him a. newsletter critical of
their policies. DOt officials had
claimed that the newsletter was
inflammatory. However, the judge
ord~ DOC to immediately deliver
the now~efunct newsletter to
prisoner LoZODZO Johnson at the '
Waupun Cofrectional Institution.

Compiled, by Melvin Perez •

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Florida Prison legal
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