FLORIDA PRISON LEGAL

ers ectives
VOLUME 10

ISSN# 1091-8094

ISSUE 2

-Know Your RightsPublic Access to Government
Records Often Unlawfully
Blocked
by Bob Posey .

A farst-of-its-kind, statewide audit conducted by
30 Florida newspapers in January 2004 found that local
public 'officials regularly· thwart citizens' constitutional
and statutory rights to inspect and examine public records.
During a on~week period in January the group of
Florida newspapers tested how government officials
respond to routine requests by citizens to inspect records
.that are required to be open and readily accessible by the
public. Reporters and other media employees posing as
.regular citizens yisited 234 local agencies in 62 of
Florida's 67 counties and 6 state agencies to make public
record access requests.
Overall, 57 percent of the local agencies complied
with the requirements of Florida's public record laws.
The other 43 percent made unlawful demands before they
would allow access to the records requested or simply
unlawfully refused to allow access or tum over the
records. The audit showed that while journalists and .
attorneys, who know the public records laws and their
rights associated with them, enjoy the benefits of the laws,

MARlAPR 2004

the same rights are not always observed for other Florida
citizens.
, Of the six state agencies approached for records
five complied with the access laws with no problem. One,
however, Gov. Jeb Bush's office failed to comply. When
a volunteer requested records from Bush's office she said
she was told she would have to give her name and address
and fill out or sign a request form - a clear violation of the
open records law, which ensures anonymity when the
requestor desires not to be identified.
During the audit, which was organized by the
Florida .First Amendment Foundation, the Sarasota
Herald-Tribune and the Florida Press Association, public
officials lied to, harassed and even threatened volunteers
who were simply exercising rights established in Florida's
Constitution and Laws. Those rights were established to
give citizens the power to watch over governmental
activities.
In six counties volunteers were erroneously told
that records they had requested didn't exist. Many
officials demanded to know who the volunteers were and
who they represented and- what they intended to do with
the information - all questions that shouldn't be asked and
do not have to be answered, according to the law. One
volunteer, a, Sarasota Herald-Tribune reporter, was
almost arrested when he Calmly declined to sign-in at the
front desk at the Charlotte County School District.
'Instead, he asked to remain anonymous and have the

Update: Access to Court Case
5
Close Management Odyssey
;
7
Post Conviction Corner
14
FDOe New Probation Policy
20
Fed. Habeas Corpus, DR Challenges
23
Notable C8Ses••••••••••••••••••••••••••••••••••••••~ •••••••••••••••••••••••••••••••••••••••• 26
Florida Prisons-Locations •••••••••••••••••••••••••••••••••••••••••••.•••.•••••••••• 3S

From the Editor

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records delivered to the lobby for his review. While one
official said he would look into the request. a security
officer called .the sheritrs department to report a
"suspicious person."
Later, officials admitted they
weren't aware that public records laws specifically
provided that records may be access by citizens without
giving their name.
"Basically, its not the government's business why
a member of the public wants a record," said Pat Gleason,
general counsel for the state's attorney general. "The
desire
of government
to
impose procedural
roadblocks...directly conflicts with a citizen's right of

FLORIDA PRISON LEGAL
PERSPECTn'ES
P.O. BOX (lUlI-:m7
('I1l:Ll·(YJ'A. (.'1. :l:.!7UU

Publishing Division of:
FLORIDA PRISONERS' LEGAL AID
ORGANIZATION', INC.
A 501 COl Nan·pronl Orllllnizalian
. Fax (4071 S68.Q200
Email: fulprll'jlol cllm
Website: w,n\ (oJUS' un!

access."

FPLAO DIRECTORS

Instead of quickly responding to volunteers'
.record requests, many officials asserted needless and
unauthorized bureaucratic requirements, or bounced
requestees from one office to another. At almost half the
agencies approached, someone looking to obtain a copy of
or just see what should have been easily accessible records
during a lunch break would· have walked away emptyhanded.

Teresa Bums Posey
Bob Posey. CLA
David W. Bauer. Esq.
Loren D. Rhoton, Esq.
. Oscar A. Hanson, CLA
Linda E. Hanson
,

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FPLPSTAFF

Publisher
Editor
Associate Editor
Research
Administrative Assistant

Suspicion and Fear

Teresa Burns Posey
Bob Posey
Oscar A. Hanson
. Sherri Johnson

Since 1909 Florida law has guaranteed citizens
access to public records. In 1993 the right was written
into Florida's Constitution. which provides at Article I,
Section 24:
I

I

ADYISORY BOARD
William Van Poyc"
Philip Bagley
Michael LambrilC
Susan Manning
Gene Salser
Marl.: Sherwood
Elizabclh Green

Perspecttves - - - - - - - - - - - - - - -

Michael Palmer
Terry Vaughn

Enrique Diaz
David ReultCr
Linda GoUieb
Anthony SlUan

FLORIDA PRISON LEGAL PERSPECTI YES (FPLPlls Ilublished up la six limes a
)·car by Flarida Prisoners' Lepl Aid OrIlIIniZlllion. Inc.• P.O. Box 660-387. ChuIUOlll,
FL 32766
FPLP is a non.profil publicalion focusing on the Flarida prison and criminal jUSlice
systems. FPLP provides a vehicle far news. infonnalion. l\Ild resources affecling
priJOners. their families. friends. loved ones and the Ileneroillublic of Florida.
RedUCIioll ofcrime and recidivism. mainlenance of family ties. civil righls. imJlFOving
conditions ofconlinemenl. promoling skilled COUll access for prisoners, illtd promolinll
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which will be granted as finances penni!.

"(a) Every person has the right to inspect or copy any public
record made or received in connection with the official business
ofany public body, officer. or employee ofthe state, or persons
acting on their behalf, except with respect to records exempted
pursuant to this section or specifically made confidential by this
Constitution. This section specifically includes the legislative.
executive, andjudicial branches ofgovernment and each agency
or department created thereunder; counties•. municipalities, and
districts; and each constitutional officer. board, and
commission, or entity created pursuant to law or this
Constitution. "

Florida is only one of a handful of states that has
adopted such powerfully protected rights to access public
records.
Further, Florida law unambiguously sets forth the
legislative intent in enacting the Florida Public Records
Act. I wherein it is stated:
"It is the policy ofthis stale that all state, county and municipal
records shall at all times be open for a personal inspection by
any person. ..1

The law provides that the public can inspect and
obtain a copy of any document (with payment for copying
costs) generated by the government, unless there· is a
specific statutory exemption for specific confidential
records. Rt:eOrds that must be made accessible to the

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public include all manner of written communications to or
from an agency, investigation reports and results, financial
records, personnel files, books, tapes, photographs,
computer-generated or stored materials, etc. J
The mandatory nature of Florida's public record
laws: found in Chapter 119 of the Florida Statutes, is
emphasized by mandatory language, which orders that:
"Every person who has custody ofpublic records shall permit
the records to be inspected and examined by any person
desiring to do so ... •ol

And, the law removes any doubt as to the
mandatory nature of the Public Records Act by
establishing relatively stiff penalties against public
officials or employees who fail or refuse to comply, where
it is stated that:
"Any public officer who shall violate the provisions ofsection
119.07(1) shall be subject to suspension and removal or
impeachment and, in addition, shall be guilty ofa misdemeanor
ofthe second degree. punishable as provided in s. 775.082 or s.
775.083. ,,5
.

and:
"Any person willfully and knowingly violating any provisionS of
this chapter [FLA. STAT. 119J is guiltyofa misdemeanor ofthe
first degree. punishable as provided in s. 775.02 or s. 775.03. ,,6

Yet, despite the clarity of the law and seriousness
of failing to comply with it, many public officials and
employees react with suspicion and fear when confronted
by public record requests. Such reaction was exemplified
in the recent media audit. .
Audit volunteers were directed to ask for
documents that should have been easy for officials to
produce: 911 call logs from sheriffs' offices, city manager
job reviews, county administrator e-mails and school
superintendent cell phone bills.
At many agencies,
requesting such documents immediately sparked suspicion
and apparent fear.
.
In one case the administrator for Broward County
threatened .a volunteer who requested to see e-mails,
saying, "I can make your life very difficult." Questioned
later, the administrator said the volunteer was suspicious
where he declined to identifY himself. Other officials
across the state cited a number of arbitrary reasons for
thinking the volunteers were suspicious, including hair
length, causal dress and, in· one case, "the look in his
eyes."
Mary Kay Cariseo, executive director of the
Florida Association of Counties, said people need to
understand that making a public records request can be
threatening to public officials. "You're not looking at emails to do something good," she defended. "You're
trying to find something. You're trying to dig something

Perspectives - - - - - - - - - - - - - - -

up \Vhen we're trying to be good public servants and run
our government."
Looked at differently, Sandra Chance, executive
director of the University of Florida's Brechner Center, a
nonprofit organization that studies and serves as a
resource on public record laws, said the ability to inspect
government records lets the public police officials who are
paid with taxpayers' monies.
"The law clearly says that public agencies cannot
institute any kind of requirements that inhibit access, or
chill this right of access, including requiring people to
give their names," Chance said. "Sometimes I think
bureaucrats forget that the purpose underlying all of this
information is to serve taxpayers." If Florida agencies are
going to improve their performance with public records,
changes will have to start at the top, said Chance.
Government employees need to feel safe turning over all
public records, even those that may embarrass their
superiors. Otherwise their first reaction will be suspicion
and fear when a citizen walks in and requests public
information.
One problem that may contribute .to officials' and
employees' perceived safety in denying or stonewalling
public record requests is the general public's Jack of
krlowledge about the law and the criminal aspect of
denying or blocking public access to records. If more
citizens pressed charges against public officials and
employees who intentionally stymie access to records, as
the law provides for, then no doubt there would be more
accommodation.
Requesting Public Records
Florida's Public Records Act does not establish
any specific procedures that must be followed by persons
seeking public documents.
Requests may be made
verbally or in writing, either carries the same force.
Knowing, however, that public officials or employees may
be hesitant to allow examination or copying of requested
records, it would be prudent to make requests in writing
whenever there is any concern that there may be resistance
to the request. Such written request does not have to be in
any specific form and may be a simple letter stating it is a
public records request and identifYing the material being
requested. A copy of the written request should be
retained and, if rC:quested through the mail. the request
should probably be sent Certified Mail-Return Receipt
Requested so that it can be verified later that the request
was received, if it becomes necessary to force production
ofthe requested records.
When record requests are made by mail the public
official or employee receiving the request should timely
respond notifYing the requestor of the cost of
photocopying the documents, and provide such copies
upon payment of the cost. Florida law provides that for
photocopies of less than 8 W' by 14" an agency may

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charge 15 cents for one-sided copies and no more than 20
cents for double-sided copies. 7 If the requested document
is larger than that, or if it is a photograph. audio or video
tape, or other such material, then actual cost of duplication
niay be charged.
Additionally, if the nature of the records requested
requires extensive time (over 15 minutes) to retrieve and
copy or to examine in the presence of the record
custodian, then a reasonable service charge may be
charged to cover the salary of the clerical assistance or
supervision. 8
Compelling Production of Records
As found, in the recent media audit, often when
citizens request public records they meet resistance,
suspicion and fear from public officials and .employees.
An amusing example of such occurred recently as relayed
to Teresa Bums Posey, chairman of Florida Prisoners'
Legal Aid Orgimization, by an aide to a state legislator.
The aide was somewhat amazed when he contacted the
Florida Department of Corrections requesting copies of
records concerning the prison qallect-call telephone
system only to be told by a DOC employee that, "We
don't have to give you those records." Asserting his
position as an legislative aide, the records, of course, were
fmally provided. When Bums Posey was told of the
incident she laughed and told the aide, "Well, its good to
know that it's not just us public peons that are treated that
way."
Most members of the public have little or no idea
what to do if and when their requests for public records
are refused or blocked. When stymied by public officials
or employees in their quest for records, most people tend
to give up their intent to obtain the records, either through
not knowing what else to do or seeing it as more hassle
than its worth. That contributes to the problem. When
public officials or employees see that resistance works
they are encouraged to continue using it.
So, whatesn be done to overcome resistance to
requests for public records?
The state attorney general's office maintains an
informal. voluntary mediation program to help the public
resolve public record conflicts with agencies. When a
member of the public makes a complaint, that office will
assign someone to mediate the public record access
problem. For more information about the mediation
program, contact the Office of the Attorney General, PL01, The Capitol, Tallahassee, Florida 32399·1050;
telephone (850) 488-9853.
If unable to resolve the problem with the AG's
mediation program, or simply' not interested in. it, any
person who has been denied the right to inspect or copy
public records may bring a civil action in the circuit court
to enforce their rights establish in the Florida Public
Records Act. Before filing such a lawsuit, a request must

Perspectives - - - - - - - - - - - - - - -

be made for the requested recordS to the person having
custody of them. Such request should be made in writing
so that proof exists that the request was made. The type of
civil action to be filed will generally be a Petition for Writ
of Mandamus. That type civil action is used to ask the
,<ourt to order a public official' or employee to perform a
duty required by law or rule. Further, the law provides
that when such an action is filed seeking to compel
production of public records that it will take priority over
all other pending cases before the court and be afforded an
immediate hearing. 9 And, in apparent recognition that the
average citizen will not be familiar with filing civil
actions, the law also provides that if a court determines
that an agency unlawfully refused to permit a public
record to be inspected, examined 'or copied, the court shall
award costs and attorney fees to the prevailing person. lO
Since such actions are usually very simple and quick, it is
usually very easy to obtain a lawyer to represent the
acti,on.

Conclusion
The intent of this article is to report on the recent
statewide media audit and provide general information
concerning public record access. The rights associated
with such access are strong in Florida. Since so much of
everyday life now involves dealing with a variety of
public officials and employees and bureaucracies, it is
important to understand what your rights are in association
with the records kept by local and state agencies. II Ifyou
desire more information about public records laws and
access in Florida, the First Amendment Foundation
publishes a definitive manual on the subject that is
prepared and updated every year by the Office of the
Attorney General. That manual costs $12.95 and can be
ordered from: First· Amendment Foundation, 336 E.
College Ave., Ste. 300,.Tallahassee, FL 32301,850-2223518 or 1-800-337-3518.
End Notes
I. Florida Statutes, Chapter 119.
Available on the Internet at
www.leg.state.flus (under "Statutes"
section).
2. Florida Statute, Section 119.01(1).
3. Florida Statute, Section 119.011(1).
4. Florida Statute, Section I 19.07(I)(a).
5. Florida Statute, Section 119.02.
6. Florida Statute, Section 119.10(2).
7. Florida Statute, SeCtion 119.07(1 )(a).
8. Florida Statute, Section 119.07(l)(b).
9. Florida Statute, Section 119.11(1).
10. Florida Statute, Section 119.12(1).

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FLORIDA PRISON LEGAL

II. Prisoners: Prisoners have the same
right to access public records as the
general public, except concerning
records of the Department of
Corrections.
Prisoners seeking
records from the FDOC should
review s. 945.10, Fla. Stat., to
understand the limitations and
procedures associated with their
requesting and obtaining FDOC
records. Due to the limitations and
hurdles in s. 945.10, it is often easier
for prisoners to have a free citizen
request and obtain FDOC public
records for them. •

-UPDATE-

Class Action Access to Court
Case
In Volume 9, Issue 4 of FPLP we reported on and
printed the fmal order granting summary judgment to the
Florida Department of Corrections (FDOC) in a class
action case filed on behalf of all Florida state prisoners
alleging that certain rules, practices and policies of the
department deny prisoners adequate access to the courts in
violation of the Florida Constitution. (FPLP, Vol. 9, Iss.
4, "Circuit Court Grants FDOC Summary Judgment on
Denial of Access to Court Claims, Appeal to Follow," pgs
25-29.) An appeal was filed challenging the Second
Judicial Circuit Court's summary judgment order, and on
December 8, 2003, the final appellate brief was submitted
to the First District Court of Appeals in the case. Due to
the importance of this case to all Florida prisoners, this
article provides a summary of the appellate briefs that are
now under consideration by the appeal court in
Henderson. et oJ. v. Crosby, et at., L.T. Case No. 2001CAOOl307, First DCA Case No. 1003-2367.

BriefUistory
Over thirty years ago Florida prisoners challenged
the FDOC's failure to accommodate the right to access the
courts and lack of law libraries or· other constitutionallyadequate means of facilitating court access. That case,
Hooks v. Wainwright (n6 Singletary, n6 Moore) was
responsible for the FDOC electing to establish law
libraries in Florida's prisons. The Hooks case was
litigated in federal court and only involved federal claims
and what was required under the federal Constitution.
That case was terminated in· December 2000 with· the
federal court finally approving the FDOC's prison law
library system and finding it adequate to meet the minimal
federal constitutional requirements as set forth by the U.S.
Supreme Court in Lewis v. Casey, 518 U.S. 343 (1996).

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The Lewis court had held (retreating from prior case
d~isions) that prison officials are only "required to supply
access to legal material that enables inmates to ascertain
their legal rights concerning the conditions of confinement
and to attack their sentences." Pointedly, the Supreme
Court said the federal Constitution does not require prison
officials to provide access to legal books, materials or
assistance to enable prisoners to litigate or defend against
any other type legal action that does not involve their
conditions ofconfinement or criminal sentences.
As soon as the Lewis decision was released. the
FDOC started removing all law· book and legal materials
from its prison law libraries not related to conditions of
confinement or criminal law and began implementing new
poli~ies to scale back prisoners' access to the law libraries.
Then, following the termination of the Hooks case, the
FDOC went even further.
Within a few months of the Hooks termination the
FDOC removed all typewriters and word processing
equipment from the law libraries and implemented new
rules reducing the amount of hours the law libraries must
be open (to 25 hrs. per week) in addition to reducing the
number of prisoner law clerks available to assist other
prisoners. Unofficially, funding for supplies, such as ~
and paper, were also reduced for the law libraries.
Concurrently, the FDOC began trying to adopt new rules
to limit the amount of materials that prisoners may receive
through the mail, including written legal materials.
In May 200 I, when the FDOC removed the
typewriters and word processors from the law libraries,
three prisoners petitioned the Florida Supreme Court for
an emergency writ of mandamus and temporary
restraining order seeking restoration of the typing
equipment and access to the legal materials stored on
disks and the hard drives of the equipment. The state
Supreme Court transferred the case to the Second Judicial
Circuit Court, where two months later attorneys from the
law firm of Holland and Knight appeared pro bono to
represent the prisoners. Subsequently, the petition was
amended to raise new claims alleging that cumulative
actions by the FDOC act to deny state prisonerS adequate
court access and denied due process as guaranteed under
the Florida Constitution, which affords a higher level of
protection than tlte federal Constitution. The case was
certified as a class action covering all state prisoners.
Both parties agreed that the circuit court could
resolve the matter on their cross motions for summary
judgment, based on the motions, memorandums of law, a
joint stipulation of undisputed facts and oral argument.
.
Although the complaint for prisoner plaintiffs
relied solely on the Florida Constitution to support the
claims of constitutional defects, the circuit court, relying
of federal precedents, specifically the Lewis decision, and
a limited interpretation of Mitchell v. Moore, 786 So.2d
521 (Fla. 200 I) (which referenced the Lewis case),
determined that the constitutional right of access to court

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is the same under the federal and state Constitutions.
.Summary judgment was thus granted to the FDOC. (See:
FPLP, Vol. 9. Iss. 4)
On June 3, 2003, prisoners' attorneys filed a
notice of appeal on the circuit court decision. and on June
12. 2003. filed a Suggestion of Certification for Immediate
Resolution by the Supreme Court to the appeal court.
which denied the suggestion.
The parties th~n filed an initial brief and answer
brief and then, recently. filed amended briefs finalized
with the reply brieffiled on December 8. 2003.
Issues Raised ou Appeal

.

The main thrust of the prisoners ~ appeal is the
position that the lower court erred by equating the explicit
state constitutional right of access to the courts to the
minimal. implicit federal counterpart of that right as
diluted by Lewis v. Casey, supra. It is argued that since
the state constitutional right of access to the courts is
explicit and fundamental. and applies to all Floridians.
including prisoners. that the. lower court erred by not
subjecting ·the prisoners' claims to a required "strict
scrutiny analysis." Such an analysis would require the
FDOC to demonstrate a compelling governmental interest
to place any limits on prisoners' access to the courts. in
addition to narrowly tailorly any actions to limit such right
to meet any compelling interest that could be
demonstrated. It is argued that the Florida and federal
rights of access to the courts are distinct, with the federal
implicit right forming the "floor". or lower minimal
standard, while th~ Florida explicit right forms the
"ceiling", or higher protected standard.
The prisoners' amended brief goes on to argue
that the lower court "collapsed the floor and ceiling
together when it found that Florida prisoners are entitled
to no greater right of access than that afforded by the
federal Constitution...as interpreted [by] J,..ewis."
Essentially, the asserted position is that the Florida
Constitution's right. to court access guarantees prisoners
the same right as any citizen to seek redress for any civil
wrong' and is not limited to only seeking redress for
condition of confinement wrongs or to challenge criminal
convictions and I or sentences, as under the federal
Constitution, as interpreted by Lewis.
Further, the prisoners' brief argues that Florida's
constitutional right- of court access is not limited to state
courts, as asserted by the FDOC. Instead, it's argued that
the plain and explic.it language of the Florida constitution
protects the right of prisoners to file and litigate in. state
and federal courts and in administrative forums, such as in
immigration and veteran matters. The brief points out one
vast difference between Florida and federal law on access
to court where the Lewis court explained that under the
federal Constitution prisoners alleging a denial of cOurt
access :nust show "actual injury." No such requirement

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exists under Florida law in order to obtain a declaration to
defend an ~sserted legal right.
Therefore, the brief continues that the FDOC's
removal of legal research materials from the prison law
libraries concerning topics such as immigration, racial
discrimination, disability rights. veteran benefits, family
law, etc., and removing form and sample pleadings. along
with reducing law library hours and research assistance
from trained law clerks and other prisoners, while failing
to provide adequate supplies and removal of word
processing equipment, on top of limiting written materials
in incoming mail, impermissibly impairs prisoners' access
to court under the strict scrutiny analysis required to be
applied by the Florida Constitution.
The FDOC counters in its answer brief, claiming
that strict scrutiny analysis does not apply where there has
been no affirmative, or formal; restrictions or impediments
enacted by statute or agency rule to impede or diminish an
established right to court access enjoyed by prisoners.
Instead, the FDOC asserts, its various "policies and
practices," as complained of, are informal actions not
reviewable under the strict scrutiny test.
The FDOC continues its answer brief to argue that
the right of court access in the Florida Constitution only
applies to access to Florida courts. To support that
position several cases are quoted from where they used
language such as, "The right of access to our courts is
constitutionally protected," and "Florida courts shall be
open to every person..... Further. it is argued, the Florida
Constitution cannot protect a right to file claims in federal
courts or administrative forums.
.
Additionally, the FDOC claims that the Florida
Constitution only guards rights that existed at common
law or by statute prior to enactment of the Declaration of
Rights of the Florida Constitution. Hence, the Florida
Constitution cannot require the department to furnish
prisoners with legal materials related to the Americans
with Disabilities Act of 1990, for example, because such
Act was not enacted prior to Florida's Declaration of
Rights. Further, it's argued that it was not error for the
lower court to rely on federal precedent where there is no
Florida precedent providing greater rights of access to
court than held in Lewis.
.
The answer brief then addresses each of the
"policies and practices" complained about and relying
largely on affidavits and depositions from FDOC
"experts" or employees explains away any suggestion that
they work to deny or impede prisoners' access to court.
In the prisoners' reply brief it is pointed out that
the FDOC advanced inconsistent positions in the answer
brief, asserting that the department has "no afftrmative
obligation under the Florida Constitution to provide legal
materials of any kind to [prisoners]", yet also arguing that
the state and federal Constitutions are co-extensive,
necessarily acknowledging that under Lewis provision of

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Perspectives - - - - - - - - - - - - - -

legal materials is required for at least two categories of
and Sean F.' Callaghan are representing the FDOC.
legal actions.
Attorneys Stephen F. Hanlon, Robin L.Rosenberg and
The reply brief also calls the· FOOC's argument.
Susan L. Kelsey from the law fum of Holland and Knight
that strict scrutiny review is limited to only fonnal actions
are representing the Florida prisoner population.
of the legislature or an agency. an "absurd arglimeitt." The
FPLP will provide further updates on this case as
reply brief cites to U.S. and Florida Supreme Court case
it proceeds. •
law wherein those courts applied the strict scrutiny
standard to cases involving informal customs, policies and
The Close Management Odyssey:
practices ofgovernment actors.
Credit Where Credit is Due
The reply brief also counters the FOOC claim that
by Mark Osterback
only causes of action that existed at common law or prior
the enactment of Florida's constitutional Declaration of
Even since the notice of proposed settlement in
Rights are actionable under the Florida Constitution's
the Close Management (hereinafter "CM") litigation
right to access the courts. It's explained that only the
(Osterbacket 01. v. Moore et 01., Case No. 97-2806-CIVLegislature can limit access to court for post-Act claims.
HUCK) was posted, I've become somewhat of a
The Legislature has not placed any limits on ADA claims,
household name in the Florida Deparbnent of Corrections
for example, and the FDOC caMot exercise authority,
.
.(hereinafter
"Department"). Thankfully, this has abated
which rests with the Legislature.
The prisoners' briefs conclude by asking the . over time as I've never quite felt comfortable enduring the
appeal court to reverse and remand with directions for the
adulation and scorn this unwanted celebrity thrust upon
me.
trial court to declare that (l) the Florida Constitution
The reason for my discomfort is that I'm
creates a higher standard than the federal Constitution, and
undeserving of such an honor.. Why? Because, while I
provides prisoners with the right ofaccess to the courts to
did have must· to do with getting the case started, my
prosecute and defend all civil, criminal· and administrative
involvement in what we eventually achieved was minimal.
matters, state or federal. not just challenges to sentences or
Now
that I'm in a position to do so, I feel the need to give
prison conditions; (2) that under the Florida Constitution
some
recognition to those whose names have become lost
prisoners need not prove "actual injury" to challenge state
in the shuffle.
actions; and (3) that the FDOC's challenged actions and
It was late summer 1996 when I _was placed in
omissions significantly burden, obstruct, restrict, and
infringe prisoners' ability to access courts. Further,
CM III status based on several disciplinary reports
(hereinafter "DRsj received· at Gulf CI a few months
directions to the trial court are requested to enter judgment
previous. The DRs, which caused me to be recommended
in favor of prisoner plaintiffs on liability, and direct the
for CM review, were subsequently overturned on appeal,
FDOC to prepare a remedial plan to address the
but only after-I'd already been placed in CM. Efforts to
constitutional deficiencies.
reverse the CM review team?s decision due to the DRs'
expungement were not successful. Of course, had I
Comments
succeeded, my name would not now be synonymous with
this infernal housing status.
To help understand the positions and issues on
During my stay at Washington CI awaiting the
appeal in the Henderson c8se it would be useful to review
the circuit court's summary judgment order which was
CM review Gulf CI staff had arranged for me, the stark
reality of what the 1995 revision of the CM rules had
reprinted in FPLP. A copy of that order was also
furnished to all prison law libraries.
wrought upon the prison system was brought home to me.
Scores of prisoners had been recommended for CM
It would also be beneficial to review the Joint
Stipulation of Undisputed Facts that was filed in the
placement for no other reason than their receipt of a
couple minor DRs or even just one. Some had merely
circuit court, which documents the rules, policies and
practices .that . are alleged to' cumulatively impede
been under· investigation and one fellow I spoke with had
prisoners' court access. Unfortunately, space limitations
done nothing' more than arrive at· Washington CI after
having previously been on CM several years earlier. For
here prevent detailing that Stipulation.
certain. something was amiss. Although these prisoners
Now that all the briefs are filed in the appeal, a
decision can be expected from the appeal court in the next
had only been recommended for review to determine
whether CM placement was appropriate, as anyone who's
several months. Regardless of the appeal court's decision
been in CM .knows, once served the "green sheet"
it may very well be that this case finds its way back to the
placement is all but a foregone conclusion.
Florida Supreme Court for fmal resolution, which would
likely be best for prisoner plaintiffs.
Of course, there were also prisoners who had
On the appeal. assistant attorneys general Joe . committed, or were accused of committing, the types of
things that were what traditionally landed one in CM prior
Belitzky (formerly on the FDOC's general counsel staff)
to 1996 (e.g. armed assault, assault on staff. escape, etc.).
I

7

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They were the exception though. The fact that an entire
quad of a butterfly dorm at Washington CI was reserved
strictly for prisoners awaiting CM review is indicative of
how radically the CM program had changed.
This change was the result of a comprehensive
overhaul of 33-3.0083, Fla. Admin. Code, which became
effective in late 1995. The rule was scrapped in its
entirety and a new ~hapter section was created, 33-38
(later renumbered to and presently existing as 33-601.801.813). In this new rule, previously unwritten policies and
procedures were codified, greatly expanded criteria for
placement in CM were devised, a new level of CM was
created (CM Ill) and finite terms were ascribed to each
level. Additionally, for the fust time there was no
requirement, as· had previously existed, that CM prisoners
be singie-ceUed. Perhaps the most ominous aspect of this
new rule was the demise of the provision designating
Florida State Prison, Union CI, Hardee CI, Martin CI,
Charlotte CI and North Florida Reception Center, as the
only institutions permitted to house CM prisoners. Under
this former provision along with the requirement of singleceiling q.f prisoners, the total statewide CM population '
had never exceeded 1500.
This seeming1y innocuous omission .caused a
revolution in the CM program by opening the door for any
institution to-join the CM club. Between late 1995 and
1997 CM units sprang up all over the state. By early 1998
the number of institutions with CM units had increased by
200% from their pre-I995 levels, with another 4-5
institutions awaiting approval to open CM units. There
were even rumors that Avon Park CI, of all places, was to
get a CM unitl This expansion swelled the statewide CM
population beyond 3500 with a potential to surpass 4000.
With no re&I unrest or turmoil within the prison
system, which the Department seemed to have braced
itself for by expanding the CM program, there was a
surplus of CM beds and a dearth of eligible candidates
who would have qualified for placement _under the
previous criteria. It was into this state of affairs I found
myself, along \Vith hundreds of other prisoners, housed 24
hours a day in.concrete and steel boxes in sensory
depriving confinement.
Washington CI staff decided to place me in CM
III status and I was sent to OkalOO58 Cl as no CM III
prisoners were housed at Washington CI. Once settled in,
it wasn't long before I began noticing. the myriad
problems the rapid and i1l-conceived expansion of the CM
program had brought about. Use of chemical agents was
rampant. physical abuse less so but still prevalent. bogus
DRs were routine and overt psychological abuse was
commonplace.
The worst condition. however,imposed by this
new regime was double-ceiling. It created a great deal of
tension, stress. and .physical violence among cellmates.
Once reason was the failure by staff to ensure
compatibility before forcing two prisoners to live together

Perspectives - - - - - - - - - - - - - -

and an unwritten policy which prohibited separation -of
incompatible cellmates unless and until one was assaulted
by the other. This condition was exacerbated by the fact

that the protective custody rule prohibited any CM inmate
from. seeking protection in such a situation. As all CM
housing had 'previously been single>ccll there was not a
need to extend protective custody toCM inmates, but in
removing the· single-cell -requirement. Department staff
overlooked the prohibition contained in the protectiv~
custody rule, to the detriment. no doubt. of many CM
prisoners. This oversight was eventually corrected in
1998 through a rule change.
. Something had to be done. I wanted to try and
effect a change as the thought of doing nothing was more
intolerable than the conditions and treatment I was
suffering. . At that point I had only vague notions of what I
could do. So, I began observing and documenting
everything that went on to amass a factual record which
could later be brought to light I also began ordering cases
on prison conditions and information on how to challenge
them. This, in itself, was a herculean task as the first
obstacles on the road to challenging the CM program were
law clerks who didn't think 1 should be ordering the
permitted IS research items on each request.
After 4 months at Okaloosa CI my mental health
underwent a rapid deterioration and I was sent to the
Crisis Stabilization ~nit at North Florida Reception
Center. Following my release, I was housed in the
cellblock where a fateful meeting took place between
myself and Frank Bass. Frank is someone who can be
described, in a word, as "driven" (no pun intended).
Anyone who knows or has met Frank won't soon forget
him.
Frank and I had both been in CM before th~ new
rule came about and saw the changes it had caused.
Through the cellblock's bars we discussed at length the
problems created by the new rule and what the long term
implications of an ever expanding CM program meant to
the prison system as a whole. It was these discussions
which were the genesis of what would later become the
CM litigation.
Frank informed me that Billy Van Poyck "had
wanted to bring a challenge to the new rule ever since its
promulgation, but being housed at FSP meant his choice
of venue lay either in the· U.S. District Court for the
Middle District in Jacksonville or the Northern District in
Tallahassee. Billy felt. and Frank agreed, that these courts
would not be receptive, and quite possibly would be
hostile, to any such litigation. In order to have a chance,
the challenge would have to be filed in the u.s. District
Court for the Southern District where a more even-minded
judiciary could give the claIms an objective hearing.
Filing in this Court would also enable the Florida Justice
Institute to become involved as they were located there.
Therefore, someone capable of exhausting the grievances

8 -.........- - - - - - -

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and filing the complaint must do it from the CM unit at
either Martin CI, South Bay CI or EvergladeS CI.
Before Frank was returned to FSP, he gave me the
name and address of an attorney Billy had been in touch
with concerning a potential challenge to the CM· program.
As my psychological grade had changed, it was possible I
could be transferred to one of those institutions. Frank said
that if I were sincere about trying to change things, deeds,
not words, were the means to bring it about and contacting
this attorney would be the first step. (I have not named
this attorney for fear he could suffer some kind of
professional repercussion.)
Fortuitously, I arrived at Everglades CI in March
1997 but was reluctant, however, to begin any litigation
because I'd been informed during my initial CM review
hearing there that I'd be released if I gave them 60 days
"clean." Why I ever believed this escapes me. If only
these inveterate prevaricators had kept their word to me,
the CM program might still be the .quagmire it was.
thankfully for us, the truth, it seems, is just not in them.
.Their perfidy only served to fuel my resolve to bring the
challenge to their CM program and see it througbto its
conclusion.
My first step was, as Frank suggested, to contact
the attorney. He gave me input and suggestions on facts
to be presented and claims to be made which he and Billy
,had discussed. He also· instructed me on the basic
mechanics of actually bringing my complaint before the
Federal Court and what it would entail. I was· not a
newcomer to civil proceedings, but I'd never· attempted
anything on this scale. These suggestions and advice
proved invaluable later.
And so it began, as it usually does, at least in
prison, with the filing of grievances. About 30 different
issues were exhausted, some I'd come up with and some
suggested by the attorney. I also decided I'd need 2 coplaintiffs, each in CM I and eM II status so the challenge
to the rule would be all inclusive. They would also have
to exhaust grievance issues relative to their own statuses.
Thus I began a search for candidates. Once again
prisoners became my biggest detractors and the obstacles
to fulfilling my mission. They didn't want to get
involved, didn't think there. was any chance for success,
didn't want to "waste" their zoom-zoom and wham-wham
money on court filing fees, feared staff retaliation or
simply didn't want to copy the substance of the grievances
onto the forms. Finally, there emerged two prisoners who
refused to be cowed, who refused to be persuaded by
defeatist attitudes, who feh it was better to try and fail
than to never try, and stepped up to embark on the difficult
cause of action with me. Thomas Gross (CM I) and
Darryl E. Williams (CM II) earned my respect for their act
of selflessness in joining me.
Our first hurdle, getting the grievances filed,
responded to and having them delivered to me was a task
in itself. Thanks are in order to two prisoners w)lo aided

Perspecttves - - - - - - - - - - - - - -

in collecting documents, evidence, ferrying pleadings
'between . plaintiffs and keeping me abreast of
developments ,in the: CM' unit once· I was released:
Roberto Del Sol'· and William Glenn.' Without them I
doubt seriously the complaint would have been filed.
At last; the complaint was filed in August 1997 in
the U.S. District Court in Miami. Instead of splitting the
$150.00 filing fee 3 ways, as I erroneously advised my coplaintiffs would be the case, we were eac~ assessed a
$150.00 filing £eo. This was the first of many burdens the
coming years would place on the 3 of us. I had the
additional burden of several hundreds of dollars in
photocopy liens attached to my account. In regards to
this, I felt the vindication of my. constitutional rights was
more important than my ability to use my account. (This
feeling. was aptly summarized by the late James Quigley
"Bang 'em up every chance you get. F... a soda."
The original complaint and the amended
complaint filed' two months afterward challenged the
procedures for. placement; criteria for placement;
inadequate review mechanisms; double ceIling; conditions
of confinement; lack of recreation, legal and religious
access; and restrictions on visitation canteen and property.
Perhaps because of its size and the number of Defendants,
it took almost a· year for the amended complaint and its
appendix to be served. By. then I was no longer housed in
CM or even at Everglades CI. Tom and Darryl therefore
'caught the brunt of staff's wrath at Everglades CI for their
involvement.
From the beginning, my strategy was always to
convince the Florida Justice Institute (hereinafter "FJIj to
weigh in as our attorneys and seek class certification. I
had no illusions that by ourselves the three of us could
conduct the massive discovery or hire the necessary
experts we would need if we hoped to prove our claims.
Additionally, without counsel we'd never have a class
,certified by the court. SO,it was to my utter relief.that in
late 1999 both FJI and Florida Institutional Legal Services
agreed to represent us.
As neither myself, Tom. nor Danylremained in
CM at this point, the-representation agreement we signed
provided that we would be dropped as Plaintiffs upon the
filing of a second amended complaint This was fine with
us· as our motivation for bringing suit had always been to
try and bring sanity to the CM program. rather than
personal notoriety.
How was it then that I remained as lead Plaintiff?
When the Department moved to dismiss they accused our
counsel of trying to start a new case with a new set of
Plaintiffs. .As I had exhausted several issues none of the
neW Plaintiffs had, I was retained because, under 42
U.S.C. § 1997e(a) exhaustion is mandatory prior to
bringing suit. Moreover, because I'd been in CM twice,
had an extensive disciplinary record and was serving a life
sentence, my release from CM status· did not moot my
claims. This is a. prime example of the ,"capable of

9-----------------:--

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

repetition yet evades review" exception to the mootness
doctrine. There was a reasonable probability, given my
unique circumstances, that I could be returned to CM and
again be affected by. the challenged rules. So I Was
retained while Tom and Darryl were dropped when the
second amended complaint was filed in November 1999.
The new complaint added a dozen or so new
Plaintiffs Fn' and FILS had recruited. each with. so it
seemed. ~is, own personal nighbnare of experiences in
CM. The new complaint also distilled all our previous
claims into a single claim-that the totality of the
circumstances in CM caused an overall deterioration in
physical and mental health and constituted cruel and
.unusual punishment. I no longer have this document and.
lamentably, can only recall the names of two of my coplaintiffs: Frapk Lowry and Alvin Few~ Although I have
no firsthand knowledge of what they had to endure
through their involvement. based on my own experiences
in the Department. I'm certain they all suffered retaliation
to one degree or another. It's just the nature ofthe beast.
Once we were represented by. counse~ things
progressed swiftly. Within 8 months the Department's
motion to dismiss was defeated and a class waS certified.
Discovery commenced soon thereafter. It was less than a
year after class certification that the department signaled a
willingness to settle the claim. It was the attorneys and
staff at both FH and .FILS who deserve the lion's share of
credit for the generous' settlement terms extracted from the
Department. A pro-se prisoner could have never dreamed
for such in the short time span in which it occurred.
There have been some prisoners I've encountered
who've accused the attorneys of selling us out and not
holding out for better terms or concessions. I would point
out that Judge Huck himself stated the Department's
settlement terms were far more generous than anything he
would have ordered. These naysayers remind me of the
admonition my friend David Beebe would give whenever
I'd rage about what I perceived were the failinglofFlorida
Prison Legal Perspectives: "Where's your newsletter
Mark?" Yes indeed, to those who cast aspersions on what
was accomplished I'd make the same admonition:
"Where's you lawsuit?"
Today, the CM program is far better than it was in
1996 when I entered it. even where the Department hasn't
strictly adhered to the terms of the settlement agreement.
Progress, when it comes to prison litigation is slow and
measured in small increments. No matter how small the
improvements may have seemed to some. they were
improvements nonetheless.
For those now' in CM status who are reading this,
I'm glad to 'have been able to help ease your lot. I was
never able to enjoy the fruits of our labor (nor do I have a
desire to). but given the chance would do it all over again.
For those who've never been in CM and for those who
have but are now in population. I sincerely hope you all
can look to what we did and gain some inspiration. Only

Perspectives - . . . . : . . . - - - - - - - - - - - -

through such a unity of purpose can anything truly be
accomplished. And for those persons whose names I
mentioned above. who, while contributing to the struggle.
never shared in the celebrity (and infamy) our victory
unwittingly bestowed upon me alone. I hope what I've
written here will, at long last. give you the credit you all
deserve.

eM Litigation Update
Recently the CM litigation underwent a change in
judges. A conflict of interest arose when Judge Huck's'
son became the Chief Assistant Attorney General for the
Southern District. As a result Judge Huck recused
himself. The new judge is Judge Graham. It is not
known. and yet to be seen, whether this is an improvement
or not.
According to our class counsel, the injunction in
the CM case was going to be dissolved under the time
limit provisions for same in the Prison Litigation Reform
Act (pLRA). but that they were going to court with
evidence of the Department of Correction's noncompliance with the injunction. This would extend the
time on the decree should the judge give us a favorable
ruling.
. Finally, according to our class counsel. the
Department has movedt~ change venue to the U.S.
District Court for· the Middle District of Florida in
Jacksonville. The basis for their motion is that there are
no longer any Close Management units in the Southern
District. Attorney Peter Siegel spoke with me recently
and we discussed this development and he wasn't sure at
that time whether to oppose that motion of not. One thing
is for certain, transferring the case to Jacksonville would
not be in our best interests; •

-Book ReviewDiscipUnary Self-Help Litigation ManuaL
Daniel E. Manville, p.e, author and
publisher, 2004,. softcover, 421 pages,
prisoner price $34.95, non-prisoner price
$64.95 (includes shipping and postage).
Order from: Daniel E. Manville, P.C., P.O.
Box 20321, Fernda1e, Michigan 48220.
Review by Sheni Johnson
Prisoners interested in defending themselves or
their fellow prisoners with in-prison disciplinary
charges and proceedings now have a new and powerful
weapon in their arsenal. That weapon is the brand new
Disciplinary Selj-Help Litigation Manual, by Daniel E.'
Manville. attorney and co-author of the widely-known
~sisting

Prisoner's Selj-Help Litigation Manual,

r

Editio1!.

10---------------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

If there's one thing common about being in
prison, it is that at some point you very likely are going to
run afoul of the rules. Prisons have lots and lots of rules,
too many to memorize and many that just don't make
good sense. But break just one rule and the odds are
you're in fairly serious trouble, facing confmement and
loss of gaintime, or visitation and other privileges, or extra
work. The same can happen even when you didn't break a
rule. but are charged with it all the same. And, if you're
like most prisoners, you know you have some rights
associated with in-prison disciplinary proceedings. but
don't know a lot about the subject, and it's difficult to fmd
someone else who does when you need them. So, you pay
. the penalty - right or wrong. But it does"'t have to be that
way.
Obviously written with the purpose of providing
prisoners with a comprehensive tool to allow them to
protect themselves while incarcerated, Dan Manville's
Disciplinary Self-Help Litigation Manual will also be
useful to prisoners' advocates needing a concise and
insightful secondary research manual concerning prison
discipline and disciplinary proceedings.
Anyone familiar with the Prisoner's Self-Help
Litigation Manual (found throughout prisons nationwide
and having provided.prisoners with information on federal.
civil right litigation through three editions) will instantly
recognize the layout and detail that went into the
Disciplinary Self-Help Litigation Manual.
Divided into nine chapters, followed by an
appendix and full table of cited cases, Manville's new
manual is well written and easy to use. Chapters are
logically arranged, set up to guide the user through a stepby-step examination of prison disciplinary systems and
preparing for and self-representation at each step in the
disciplinary process.
There are also chapters that
thoroughly discuss litigating disciplinary guilty findings in
state and federal courts, providing hundreds of citations to .
supporting and relevant cases in each chapter. There is
also an extensive chapter devoted to a summary of what
the law is in each state concerning prison disciplinary
proceedings. And there is a handy table of cases for both
state and federal cases cited in the text making it easy to
use as a research tool.
.
Overall, Dan Manville has produced a needeCl
manual to guide prisoners and their advocates through the
often misunderstood and confusing topic of prison
discipline litigation. •

Jobs Hard To Find For Ex-Offenders
by Linda Hanson
Job candidates with criminal pasts are less likely
to be called back after a job interview, according to a
study by a sociologist at Northwestern University in
Evanston, Illinois. While 34 percent of whites without a
criminal record received a call back, only 17 percent of

Perspectives - - - - - - - - - - - - - - - -

whites with a criminal record were asked to come back.
African-Americans fared even worse. Just 5 percent of
black applicants with criminal records got called back.
More than 40 percent. of employers would
probably or definitely not be willing to hire an applicant
with a criminal record, according to a 200 I survey of 619
organizations in Los Angeles. More than a third said their
response would depend on the applicant's crime.
For many employees and job seekers with a
criminal past, the economic climate poses a major hurdle.
It's a drastic reversal. Just a few years ago, a booming
economy and tight job market meant employers were
increasingly willing to tap non-traditional labor pools,
including ex-offenders. But today. with an abundance of
candidates and a scarcity of jobs, employers are less
willing to take a risk- and that means workers with
criminal records are facing uncertain employment futures.
That means thousands of workers and job seekers are
affected. An estimated 5.6 million adults have been
imprisoned at some point, according to 2001 data from the
Bureau of Justice Statistics.
Millions more have
convictions that never led to incarceration.
The tough job market is coming as an increasing
number of ex-offenders - niore than 600,000 - are
released from prison each year. Past research has shown
that those with a job are less likely to commit another
crime, but statistics paint a grim picture for ex-offender
job seekers.
A number of states have laws that bar employees
with criminal records from working in a host of industries.
For example, Florida prohibits potential employees from
'VOrking in occupations that requires a state license such
as general contractors, x-ray technicians, and air
conditioning installers. Most of these draconian laws
were passed during the get-tough war in the I 990s. The
laws were aimed at protecting public safety and keeping
ex-offenders with. specific criminal pasts from working
with wlnerable populations. But in essence it stymies the
ex-offenders ability to successfully integrate back into
society.
Some ex-offenders and legal aid groups are filing
lawsuits or lobbying to relax or even repeal those laws.
However, many employers claim there are legitimate
concerns. In many states, employers who hire exoffenders with specific criminal records can be held liable
if another crime is committed. Such hires can be costly
according to a report in the quarterly journal, Public
Personnel Management.
According to the report, employers have lost more
than 79 percent of negligent hiring cases with an average
settlement of more than $1.6 million. Traycee Klein, a
New York employment lawyer at Epstein. Becker and
Green recognized the injustice of denying employment to
ex-offenders. but on the other hand. look at the potential
liability the employer can face. It's definitely a delicate
~~~~

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FLORIDA

PRIS~N

.
Some penal experts. union leaders. and eoffenders say the security concerns go too far. T e
InternatiQnal Longshore and Warehouse Union has been
fighting' a'push to ron background checks on dockworkers
in California. Members of Congress called. for the checks
to enhance security -following the September II terrorist
attacks. but union leaders say. it amounts to harassment
and could cost workers their jobs.
Background check providers say such snooping is
necessary because ex-offenders may not always be
truthful on job applications. But some fanner prisoners
say the reason they omit infonnation is that ifs the 'only
way to get a job.
.
For ex-offenders' who have been incarcerated for
. extended periods of time. it is not enough to omit criminal
convictions. The gap in resumes or job applications often
trigger suspicion. which leads to an unsuccessful job
interview.
With an unemployment rate of 6 percent in
October 2003. compared with 4 percent in 2000, there are
more job candidates to draw from for the type of lowerwage jobs typically. held by ex-offenders.
Average quarterly earnings of ex-offenders in
studies range from $1.000 to $2,OOO~ Nearly half of exoffenders are African-American, a minority group that
already has a higher unemployment rate than the national
average. And while two-thirds of employers would hire
an applicant with a spotty work history. just 20 percent
said that they would definitely or probably consider hiring
an applicant..with a criminal history, according to a study
led by Georgetown University.
Those most willing to hire applicants with
criminal records are in manufacturing. construction. and
transportation - all jobs with minimal customer contact
While the reticence to hire ex-offenders has
persisted for years, the issue is causing growing concern
now because of the surge in the nation's prison
population. "It's an issue of growing importance because
there are a record number of people coming out of
prison," says Mark Mauer. assistant director of The
Sentencing Project in Washington. an organization that
conducts criminal justice policy analysis.
Finding employment is not the only barrier for exoffenders to deal with. Other problems such as finding
transportation to get to a job. money to purchase clothes
for work and interviews and how to function in the
workplace all contribute to the employment quagmire.
It's not just recent offenders who have to worry.
The heightened attention ~ security means even some
seasoned employees with long-ago convictions are
running into problems as companies carry out background
checks on current employees.
.
In many stales employers can legally refuse to
hire an ex-offender only if the crime .committed suggests
the person may pose a threat in specific jobs. But those
who lie on a job application often have scant legal
protection. •

LEGAL

Perspectives

,--------------------,

Prison Perspectives...
Incarceration: 1925-2002
The American 'prison system of the past thirty years has
been characterized by a population increasing
exponentially in response to shifts towards mandatory
minimums and determinate sentencing. Persons convicted
of a crime today are far more likely to be sentenced to
incarceration and will' spend a longer period of time in
prison than their counterparts in past decades. During
2002, thl: nation's state and federal prison and local jail
populations swelled to over 2 million· for the first time in
history. These trends have contributed to prison
overcrowding and state governments being overwhelmed
by the burden of funding a rapidly expanding penal
system. The results of these decisions)ave prisons filled
with large numbers of non-violent and drug offenders
(over SO percent in both state andfederaJ prisons) at an
annual cost of incarceration of $20,000 or more, along
with increasing evidence that large-scale incarceration is
not the most effective means ofachieving public safety.

I-State and Federal Prison Populations

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ADVERTISING NOnCE
Due to BCClOccm for our members, the FP£p SllIff
tries to cnsure that advatisas in these pages an:
reputable lIIId qualified to provide the services being
offered. We ClIIlJIot meet evay adveniser. however.
so manbers an: lIdviscd to always pasonally CClntllCt
lIdvcrtisets for fiJnher information on their
qualifications and experience before making B
decision to hire lIII attorney or other professional
service provider. Yau should never send legal or
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Email: FPLP@IIol.com

12--------------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - -

Florida's Elder Prisoner Population
CAl!es 50 and older)-

Florida Corrections Commission
Wants "Elderly Age" of Prisoners
to be Considered 59 to Save Money .

Year
1990
1992
1994
1996
1998 .
2QOO
2Q02
2003

by John Hudson
There is a debate in corrections circles as to what
age should be considered elderly. The Florida Department
of Corrections supposedly uses age SO, arguing that an
inmate ages faster than the average person on the outside.
The Florida Corrections Commission, which provides
oversight and makes Budget and Policy recommendations,
has suggested increasing the age to S9-and-over to give
prison officia~s a smaller, more manageable elderly
population. In.other words, to save money.
Florida's prison system has seen it's age SO-andover inmate population grow by more than 10 percent in
the past year to 8,625, or more than 10 percent ofthe total
prison population of more than 79,000.
The cost, of healthcare for prisoners is no doubt
increasing dramatically. In the past 5 years, the state's
prison population has grown about 17· percent, while
medical costs have jumped nearly 26 percent (from about
$223 million in Fiscal Year 1998-99, to more than $280
million in Fiscal Year 2002-03).
A House Corrections Committee report shows that
kidney failure, heart. d~ lung cancer, and other
cancers, are more prevalent among older-than-SO inmates
than among those younger.
To deal with the increasing number of elderly
inmates and to reduce health-care costs, special units
located at prisons in Raiford, Zephyrhills, Miami, Lowell
and Wakulla have been opened, or are opening, to house
elderly inmates.
It is apparent that the state is taking steps to rein
in the costs of housing and providing health care for older
prisoners simply by increasing the age to be considered
eligible. With lengthy prison terms imposed, very little
gain-time given, a Parole Commission paroling almoSt no
one, and a growing prison population, the problem of
housing older inmates in the system can only get worse.
[Editor's Note: When it was first created by the
Legislature, and for its first few years, the Florida
Corrections Commission exhibited an effort to provide
unbiased oversight of the FDOC. That appeared to change
with more recent appointments to the Commission, which
is now loaded with commissioners with FDOC or law
enforcement backgrounds. A telling omission is that the
Commission does not include any prisoner family
members or advocates to provide even an appearance of
balanced oversight. - bp] •

Total PO» Elder PO»
42,735
1,991
47,012
2,336
56,052
2,946
64.333
3,672
662-80
4,588
71,233
5,605
73,343
6,802
76,653
7,636

%oflto»
4.i66%
4.97%
5.26%
5~71%

6.92%
7.87%
9.28%
9.96%

-(2002 and 2003 statistics as ofMay 31, ofeach year, all
others as ofJune 30 ofeach year.)
Source: FDOC statistics.

Cost of CariDg for Elderly Prisoners
Most Florida prisoner medical care is provided inside state
'P~bS -but some outside medical care is needed for
-specfalized·sorvices. While eli1eJ:ly prisoners (ages 50 and
over) 1J18de up 9.28 percent of.. ~e 'pri$on population in
_2001-29Cl2~, tljey-were .responsible.for -&'Significant portion
:'o"the:o~~imedJ~'cos~; .... :<.:-, 25'%.-ofllospital'bUIs
• -22%ofambulatory surgery episodes • 26% of costs for ancillary care episodes
.•. _-300" ofcosts for inpatient emergency care
epis04es.
. Source:PDPC,PinancfaIRecords.

Aging Prison Population

-himates ~s SO andovedn-stateand federal .
·pri~o~~tlJto~sbouHbeUnited:States. .
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.oci,ooo.~--

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40,000 01--==::::;..,-----.;..

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............~~;""..,,;...;.---.....01

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'91'9S '94 ,,, '115 '97 '91 '99 '00 '01

1~INMAi'isAG.SQANDQYIIl
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Source: Criminal Justice Ina~!s GOtreetions Yearbook,
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Chart·byFPU~~·J~c
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13 -------.......;..----...;...-

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - - -

POST CONVICTION CORNER

by Loren Rhoton, Esq.

Most criminal defendants in a pretrial posture must face the difficult decision of whether
or not to accept a plea offer made by the State. Often the offer will be calculated to be less than
the sentence thatthe defendant would likely receive if found guilty at trial. Such a tacti~ is used
to encourage defendants to plead guilty and to lessen the courts' and the State's caselo~ds. Plea
bargaining is a legitimate and useful· aspect of our criminal justice system. And, when used
properly can often benefit all parties involved. But, one concern that a person facing charges
should not have is that he will be punished for rejecting a plea offer and taking his case to trial.
And, when judges inject themselves into the plea process, there is sometimes the possibility that
the defendant will be treated differently at sentencing after a trial. This article deals with the
problem ofjudicial vindictiveness at sentencing.
An accused person should not have to worry that ajudge will sentence himmore harshly
if the accused elects to pursue his constitutional right to a trial by jury. Unfortunately, judges do
sometimes act vindictively and sentence defendants more har$hly when a case has gone to trial.
When a court is exercising its discretion to devise punishment for a convicted defendant, the law
forbids it to take into account the defendant's refusal to accept a plea offer. McDonald v. State,
751 So.2d 56 (Fla. 2nd DCA, 2000). And, ifajudge takes part in the plea negotiations, the judge
should not punish a defendant for refusing a plea offer. Id. When the sentencing judge has been
involved in the plea negotiations and then later imposes a harsher sentence after a trial, the
sentence is presumed to be vindictive. Id.; See also, Stephney v. State, 564 So.2d 1246 (Fla. 3rd
DCA 1990). The presumption can only be overcome ifthe record affirmatively demonstrates
that the defendant's insistence on a trial was given no consideration in the sentencing.
MacDonald at 58; and, North Carolina v. Pearce. 395 U.S. 711 (1969).
A sentence can also be presumed vindictive if a defendant is sentenced more harshly by
the same judge after a successful appeal. Harris y. State, 653 So.2d 402 (Fla. 4th DCA 1995).
Likewise; a sentence will be presumed vindictive if the same judge imposes'a harsher sentence
after a successful collateral (postconviction) attack. North Carolina v. Pearce, 395 U.S. 711
(1969), recognizes that due process of law requires that vindictiveness against a defendant for
having successfully attacked his or her first conviction must play no part in the sentence he or she
receives after a new trial. Thus, when a trial court imposes a harsher sentence at a second
sentencing proceeding, a presumption ofvindictiveness arises.. If a sentence·is presumptively
vindictive for any of the above reasons, the sentence should be vacated and the case should be
remanded for resentencing.
'
,
It is important to note that for a sentence to be presumed vindictive, the judge who
imposes the'sentence must be the same judge that was involved with the plea negotiations and/or
original sentencing. See, Richardson v. State, 821 So.2d 428 Wla. 51h DCA 2002). Where there
is no presumption ofvindictiveness (because ofa different sentencing judge) the burden is on the
defendant to prove actual vindictiveness on the part of the court I!h Obviously it is difficult to
prove actual vindictiveness on the part of a new sentencing judge unless there are actual
comments by the judge which clearly demonstrate said vindictiveness.
14 - - - - - - - - - - - - - - - - -

Perspectives - - - - - - - - - - - - - The presence of a vindictive sentence is fundamental error which can be raised on direct
appeal, even in the absence ofan objection by trial counsel. See Mitchell v. State, 52i So.2d 185
(Fla. 4 1h DCA, 1988). Therefore, a vindictive sentence can and should be raised on direct appeal.
Unfortunately, those reading this article are most likely already done with the direct appeal and
looking toward the possibility of raising a vindictive sentencing issue in a postconviction motion.
As such, it is important to recognize that a straight vindictive sentence issue (Le., the sentence
should be vacated because it is presumptively vindictive) will not succeed in a collateral attack
such as a Florida Rule of Criminal Procedure 3.850 Motion for post conviction relief. This is so
because arguments that were, or should have been, raised on direct appeal are not cognizable in a
postconviction motion. See Harvey v. Dugger, 656 So.2d 1253 (Fla. 1995).
If one wishes to raise an issue ofvindictive sentencing after a direct appeal has
concluded, said issue can be raised in one of several ways. Firstly, it can be alleged that trial
counsel was ineffective for failing to object to a vindictive sentence. Such an issue is cognizable
in a 3.850 postconviction motion because the issue of ineffectiveness of counsel is generally not
one that is cognizable on direct appeal. See, Lawrence v. State, 691 So.2d 1168 (Fla. 1997); and,
Cowan v. State, 725 So.2d 1153 (Fla. 2nd DCA 1998).
Another way that a vindictive sentencing issue can be raised after a dir~t appeal is in a
Florida Rule of Appellate Procedure 9.l41(c) petition for writ of habeas corpuS to the
appropriate district court of appeal. Said petition should allege the appellate counsel was
ineffective for failing to raise the vindictiveness issue on appeal.
Detailed advise on both 3.850 motions and 9.141 (c) petitions can be found in previous
Post Conviction Comerarticles. Therefore, the author will not go into detail about how to
pursue such actions in ~his article. Nevertheless, it is important for anyone alleging
ineffectiveness of counsel to remember that said ineffectiveness must be demonstrated to satisfy
the two pronged test set forth in Strickland v. Washington, 466 U.S. 668 (198~). In other words,
before relief can be obtained, it must be demonstrated that counsel performed deficiently and
that the performance actually prejudiced (had a negative impact) on the outcome ofthe case.
There is very little authority to offer guidance on the appropriate remedy for a vindictive
sentence. In McDonald v. State. 751 So.2d 56 (Fla. 2nd DCA, 2000), the Second District Court of
Appeal of Florida made note of the dearth of guiding case law on the subject, stating that tht:re is
very little authority to offer guidance on the appropriate remedy other than to suggest that
"appropriate remedies must be fashioned case by case." Ultimately, in McDonald it was
determined that the appropriate remedy was to reverse the vindictive sentences with directions to
the trial court to resentence McDonald to the sentence that was offered at the pretrial conference
and during the recess at trial. Id. Therefore, it would perhaps be wise to request relief pursuant
to McDonald. Thus, the appropriate re,lief (in 'the plea offer context) may be to be resentenced
pursuant to t~e original (and more lenient) plea offer. Or, if the vindictiveness occurred after an,
appeal or collateral attack, it may be wise to request resentencing to the originally imposed (and
more lenient) sentence. The goal of raising a vindictive sentencing issue is ultimately to reduce
one's current sentence. Therefore, it is sUggested that one request the appropriate remedy
(whatever that may be), as provided for in McDonald, when there has been vindictive sentencing.
Obviously the appropriate remedy would be a sentence which places the accused in the position
he or she would have been in the absence of the judicial vindictiveness.

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area ofthe law. both at the State and Federal Level. He has assisted
lJundred<; ofincarceratedpersons with their cases and has numerous
wrillen appellate opinions.
15 - - - - - - - - - - - - - - - - -

- - - - - - - - - - FLORIDA tRISON LEGAL

·.1

~erspectives

----------

R¥0TON & HAYMAN, P .A.

I

LOREN D. RHOTON
AUoraey At Law

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'STATE POST CONVICTION
<+> SENTENCE CORRECTIONS
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<+) FEDERAL PETITIONS FOR WRIT
: OF HABEAS CORPUS
<i> NEW TRIALS
<;) INSTITUTIONAL TRANSFERS

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- - - - - - - - - - - - - 16 - - - -

_

- - - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - -

The information contained in this section is compiledfrom published Session Laws and may be useful to or impact Florida prisoners.
This section is an information source designed to provide accurate information concerning the latest in Florida law. Occasionally.
Legislative Watch will publish other items of interest related to Florida's legislative such as upcoming bills. legislative history, and
bios on current legislators. New law and pending bills will be clearly identified to avoid confUsion as to what is law and what is not.

Single Subject Requirement of Law and
Legislative Acts in General
Florida Constitution Article 3, section 6,
states in part that "every law shall embrace but one
subject and matter properly connected therewith, and
the subject sbalI ~ briefly expressed in' the title."
This constitutional provision is commonly referred to
in the legal world as the "single-subject rule."
The single-subject rule guards against
"logroUing~' a practice whereby' several separate
issues are rolled into a single initiative in order to
aggregate votes or secure approval of an otherwise
unpopular issue. The rule also enables voters to
avoid having to accept part of, a proposal which they
oppose in order to obtain a change which they
support.
.
Basically, logrolling is the exchange of
political favors by the trading of votes among
legislators to gain support of measures that are
beneficial to each legislator's constituency. It is also
defined as the Legislative practice of including
several propositions in one measure of proposed
constitutional amendments on law so that the
Legislature or voters will pass all of them, even
though these propositions might not have passea if
they bad been submitted separately. (Black's Law
Dictionary, Seveirth Edition.)
Many states have constitutional single-subject
clauses similar to Florida's that prohibit this practice
of"logroUing" when enacting laws.
The single-subject clause addresses two parts
of the law: (1) the body of the law; and, (2) the title
of the law. The first part of the single-subject rule
simply requires that only one subject be addressed in
the law.
The . purpose for the constitutional
prohibition against a plurality of subjects in a single
legislative act is to prevent a single enactment from
becoming a "cloak" (disguise or cover) for dissimilar
legislation having no necessary or approp~te
connection with the subject matter. State \I. Lee, 356
So.2d 276, 282 (Fla 1978).
,

The second part requires that the subject be
briefly expressed in the title. The purpose of the title
requirement is to put people who may be subject to
the law, other lawmakers, and other interested
persons on notice of the nature and substance of the
law and. at a minimum, inform them of the need to
,further inquire into the specifics of the legislation.
See State \I. Physical Therapy Rehabilitation Center
o/Coral Springs, Inc., 665 So.2d 1127, 1130 (Fia. lsi
DCA 1996). .The title may identify a broad or
restricted' subject, but it must be accurate and not
misleading. Id.
When a law violates the single-sUbject clause, .
it cannot be assumed that a majority of the legislators
assented to it. When the Legislature passes a bill in
violation of the single-subject rule it is assumed,
without inquiring into the particular facts, that the
unrelated subjects were combined in one bill in order
to convert several minorities into a majority. The
one-subject rule declares that this perversion of
majority rule will not be tolerated. The entiie act is
suspect and so it must all fall.
In determining whether the act of law
complies with the constitutional provision shown
above, one must look at title to the charter or session
laws in question. The subj~t of the law must be
briefly expressed in the title and be logically
connected to the purpose, or object, contained
therein.
The "subject" of the act is matter to which it
relates, while "objecf' thereof is purpose to be
accomplished.
.
An example of a legislative enactment of law
that violated the single-subject rule was Laws of
Florida, Chapter,95-184. This wrongfully enacted
law caused huge judicial expense assOciated with the
resentencing of thousands of Florida prisoners after
the Supreme Court~s ruling in Heggs \I. State, 759
So.2d 620 (Fla. 2000).
In Heggs, the Supreme Court held that act
containing sentencing guidelines' and provisions
addressing domestic violence injunctions violated the
single-subject rule. Following their precedent in

17 - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Thompson, the Court believed 95-184 violated the
single-subject rule because it embraced civil and
criminal provisions that were not logically connected.
In Thompson v. State, 717 So.2d 538 (Fia.
1998), the Court held Chapter 95-182, which
addressed violent career criminal sentencing, was
unconstitutional because the enactment embraced
civil and criminal provisions that had no "natural·or
logical connection."
That chapter's objectionable civil provisions
addressed domestic violence injunctions (civil) and
career criminal sentencing (criminal). Basically, the
Legislature "logrolled" three unpopular domestic
violence bills in to the popular career criminalbill.
,
Chapter 95-184 was characterized as "an act
relating to the justice system" The Chapter Law is
comprised of 40 sections. Section 1 provided that the
act may be cited as the ''Crime Control Act of 1995."
However, the act actually addressed four
different subjects:
criminal sentencing, defining
substantive crimes, monetary compensation for crime
victims, and civil remedies for victims of domestic
violence. Because the domestic violence provision
was a civil matter not naturally connected to the
remaining criminal subject matters contained in the
act, it contained more than one "subject" as legally
defined in this instance and therefore violated the
single-subject rule.
In Loxahatchee River Environmental Control
Distr.ict v. School Board ofPalm Beach County, 515
So.2d 217 (Fia. 1987), the Court explained how laws .
that violate the single subject rule generally are
"cured":
At every odd-year regular session, the
legislature, as part of its program of continuing
revision, adopts the'laws passed in the preceding odd
year.as official statute laws and directs that they take
effect immediately under the title of "Florida
Statutes" dated the current year. In Santos v. State,
380 So.2d 1284 (Fia. 1980), the Court held that when
laws passed by the legislature are adopted and
codified in this manner, the restrictions of Article 3,
section 6, pertaining to one subject matter and notice
in the title no longer apply. Accord: State v. Combs,
388 So.2d 1029 (Fla.1980). As seen, a law passed in
violation of the requirements of Article 3, section 6,
is invalid until such time as it is reenacted for
See:
codification into the Florida Statutes.
Thompson v. Intercounty Tel. & Tel. Co., 62 So.2d 16
(Fla. 1952).
.
The Preface to the official Florida Statutes
illustrates how the biennial adoption process works.

Perspectives - - - - - - - - - - - - -

In essence, the Preface explains that, during the
biennial adoption process, the Legislature amends
sections 11.2421, 11.2422~ 11.2424, and 11.2425,
Florida Statutes, to prospectively adopt as the official
statutory law of Florida those portions of the statutes
that are carried forward from the preceding regular
edition ofthe Florida Statutes. Thus, the general rule
for "curing" laws that violate the single-subject rule
is through the biel1l1W adoption process.
Once reenacted as a portion of the Florida
Statutes, a chapter law is no longer subject to
challenge on the grounds that it violates the singlesubject requirement of Article 3, section 6, of the
Florida Constitution.
(The single-subject
requirement of Article 3, section 6, only applies to
"chapter laws," and sections of the Florida Statues
need not conform to the requirement.)
Accordingly, the Beggs court eventually ruled
the law, Chapter 95-184, was "cured" upon the
biennial reenactment on May 24, 1997. This gave
those whom had offense dates lying from October 1,
1995, the date the invalid law went into effect, until
May 24, 1997, the date of biennial reenaCtment, to
challenge their sentences.
Chapter 95-184 is only one example of the
lawmakers violation of Article 3, section 6, of
Florida's Constitution. Others have taken place and
more will most likely occur.
It should also be noted that since 1999, the
Florida Statutes have been published in their entirety
annually. With the change to annual publication of
the Florida Statues, the Adoption Act is now
submitted to the Legislature to be enacted every year
instead of biennially, while the "curing period"
remains two years.
To this writer, the notion that an enactment of
law that is void for logrolling can somehow become
valid by virtue of the biennial reenactment, which is
itself the ultimate example of 10grolliQg, escapes my
personal logic. After all, why should any rule or
subsequent act subvert a constitutional requirement
that was intended to prevent·the subversion of the
most basic prerequisite to the exercise of Legislative
power, i.e., that a law can be enacted only if it is
approved by a majority of Legislators, as found in
Act 3, section 7, Florida Constitution. The singlesubject rule is supposed to assure that it is carried out
by preventing logrolling. Why give lawmakers ~
out? •
Half the truth is often a great lie.
.
Benjamin Franklin ~ 758 .

_ _ _ _ _ _~--------18 ~=========================_

, . . . . - . . . . , . . . . - - - - - - - - - - FL9RIDAPRISON LEGAL

Perspectives - - - - - - - - - - - - -

David W. Collins, Attorney at Law
Former state prosecutor with more than 18 years ofcriminal law experience
..AV" rated by Martindale-Hubbell Bar Register ofPreeminent Lawyers

Your voice in Tallahassee representing prisoners in aI/areas ofpost-eonviction relief:
Appeals
3.800 Motions
3.850 Motions
State and Federal Habeas Corpus
Writs of Mandamus
Parole Hearings
Clemency

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

Write me today aboutyour case!
David W. Collins, Esquire
P.O. Box 541
Monticello, FL 32345
(850) 997-8111
"The hiring ofa lawyer is an important decision that should not be baseci solely upon advertisements.
Before you decide, ask me to send you free written information About my qualifications and experience."

FLORIDA PRISONER'S LITIGATION~AL
Legal Information on Prison Discipline, Mandamus and Appellate Review
A MUST HAVB LEGAL GUIDE FOR ALL FLORIDA PRISONERS
. "I highly recommend.the FPLM for any prisoner living under the FDOC."
.
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19 --------"'=--------

Perspectives .....;-----~------~
'Crosby, in league with Gov•.Bush, is again calling for
almost another $100 million to fund even more prisons for
largely non-violent offenders.

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

FDOC Secretary Draws Fire
For New Probation Policy

In what critics said is 'an attempt to deflect
[Source:
St. Petersburg Times, 3/10/04; FOOC
controversy over the Florida Department of Correction's
Correctional Compass, Nov / Dec 2003; FDOC records]
perceived mishandling of an alleged probation. violation
by Joseph P. Smith, who was charged with the murder of
ll-year-old Carlie Brucia, DOC Secretary James Crosby
GPS Tracks Offenden
told two Senate committees he has ordered pr!3bation
officers to stop writing recommendations to judges.
This September, President Bush is expected to
whether probation violators should.bejailed.
.
announce a grant of $21 million to establish Family
Crosby's announcement of the new policy, which
Justice Centers in 12 U.S. communities. Law enforcement
he claims is legal because no law requires such
agencies across the state aren't waiting. Hillsborough
recommendations, drew criticism from several state
County Sheriff's Office is pursuing the funding of30 GPS
senators. If Crosby proceeds with the new policy, several
ankle bracelets to monitor the movements of those
senators said, the Legislature should reverse it with.a law
wearing them. Pinellas County already uses the satellitt>requiring such recommendations. "I believe that more
based Global Positioning System to track criminal
information to the court is crucial, not less,"· said Sen.' offenders on, work .release or probation. The Pinellas.
Alex Villalobos, R-Miami.
.
County Sheriff's Office has a pilot GPS program with
. Crosby's defense was that probation officers often
VeriTracks that allows about 60 inmates on work-release
don't know all of the 150,000 people on probation in
to go home at night with an aDkle bracelet and a small box
Florida. "That is somewhat of a myth, as to how much
that records their movements. The GPS system uses'
knowledge a probation officer has," said Crosby.
"passive monitoring," meaning information on the
Leon Circuit Court Judge James Hankinson said
inmate's travels is downloaded every 24 hours to a central
probation officers are the ones who know probati~ners
database.
best "If they have an ,opinion, I want to hear it," said
Another 30 bracelets are used for Pinellas
Hankinson.
defendants who have been released from jail on their own ,
Senators also criticized the criminal history
recognizance but have to return for a court date. Those
reports beingprovid~ to judges by FDOC employees.
ankle bracelets use active monitoring which tracks the
Hankinson said· criminal background reports that judges
defendants constantly.
often receive are "inaccurate, inCQmplete or confusing."
Both versions of the VeriTracks system correlate
The processing of probation violators has been
the bracelet data with crime reports, so the sheriff's
under increase scrutiny since Carlie Brucia was abducted
officials can see whether crimes were committed where
and killed in Sarasota in February. Joseph Smith, her
the monitored defendants roamed.
alleged killer, was on probation for cocaine possession at
Last month, the Florida House heard from
the time of the crime. In December he was called before
VenTracks representatives, who want the state to invest in
the court for failing to pay court fees, a condition of his '
a $35 million GPS package that would track more than
probation. The judge, however, said he was prevented by
10,500 serious criminal offenders upon their release.
law from revoking Smith's probation because probation
officers had failed to furnish bvidence that Smith had
[Source: St. Pete Times, 3/10/04] •
''willfully'' refused to pay.
Florida law prohibits
incarceration for failing to pay costs or fees· imposed as a
Therapeutic Jurisprudence.
condition of probation unless evidence is presented a
by Anthony Stuart
probationer has the ebility to pay and just chooses ~ot to
do so. Some critics, including Carlie's family, questIOned
"You Are Hereby Sentenced To Yoga Class~"
why Smith was on the street when he had been called up
Sound wacky? Well, Judge Larry Standley of Harris
for a prObation violation.
County, Texas, does not seem to think so. This is the.
It is expected that the 'Legislature will pass new
sentence he tacked on as a condition, on impulse, to an
. legislation this year to tighten up the probation system in
already agreed upon punishment to a man for slapping his
Florida following the nationwide attention that Carlie
Wide in a domestic dispute.
.
.
Brucia's murder received. It is unclear at this time where
. Judge Standley ~ds by his sentence and hopes
changes will be made. Already last year Crosby had
,the combination of traditional punishment and a m~d­
instructed probation officers to implement a "zeroand-body-stretching yoga 'class will help the man control
tolerance" for even' minor probation violations in order to
his behavior. He says, it certainly can't hurt.
flood the prison system with new admissions to force the
Legislature to fund new prison construction. This year

•

20----

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- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Judges such as Standley are bucking a trend of the
past decade to stiffen· sentences and make punishment
more uniform. The state legislatures and sentencing
commissions. faced with budget deficits and overcrowded
prisons. are taking notice of this creative sentencing too.
In the past three years. at least a dozen states. including
Alabama, Arkansas, Connecticut, Delaware, Kansas,
Maryland, Michigan, and Utah. have begun to examine
and revamp sentencing policies.
These judges are feeling hamstrung by proscribed
sentencing guidelines, so they are taking advantage of the
leeway some of them have. They are imposing these odd
sentences because they're just plain frustrated with repeat
offenders or wanting a way to avoid sending first and
small-time offenders to overcrowded jails. Teach them a
lesson without ruining their lives with prison time is the
idea.
Though it is mostly municipal courts, which·
generally handle traffic and misdemeanor cases, that have
more of a leeway to impose such creative type sentences,
there are some state felony judges that also have leeway to
alternative sentences or add other conditions to them.
Right now though, no one is sure whether these
types of sentences work ~ than plain old time in the
slammer, but it is a start to hopefully show that
rehabilitation· does work instead of the present
warehousing of prisoners. as'practiced in Florida. Finally.
there is a door being opened because these. "Judges see a
problem, [with the warehousing of prisoners instead of
rehabilitating them] and they want to solve that problem,"
says Malcolm Young. Young is an executive director of
The Sentencing Project, a non-profit organization in
Washington. D.C., which promotes more effective
sentences and less reliance on prisons to reduce crimes.
He says, "Judges want to make sentencing more
meaningful than it is now."
Some other creative sentencings used that are
·mindful of rehabilitation are like the methods Judge
Frances Gallegos of Santa Fe, New Mexico, uses. People
she has convicted of domestic violence or fighting are
often sentenced to a twice-a-week New Age angermanagement class that is held in the courthouse lobby,
where it is transformed with candles, mirrors, and
aromatherapy (the use of aromas, such as herbs, for
therapy), where offenders experience tai chi no less,
meditation. acupuncture and even Eastern philosophy as a
means of controlling rage. Gallegos calls her methods
"therapeutic jurisprudence."
She herself sometimes
attends these classes and exercises this therapy right along
side the offenders to which she has sentenced. Though
she is criticized and ridiculed as coddling criminals, she
knows it is helping to rehabilitate them and keep them out
of prison. "If I did not have the latitude that I do to create
these programs to fmd different solutions to all the soCial
problems I see, I wouldn't want to be here," Gallegos
says. "It's really been kind of a mission for me. I'm

Perspectives - - - - - - - - - - - - - -

maybe the. most qotorious judge in the state of New
Mexico."
In Coshocton, Ohio; fudge David Hostetler was
following the· creative sentencing trend when just recently
he ordered a man to jog for an hour every other day
around the block where the jail is located. The man had
ran away from police after a traffic accident he was
involved in. In 200 I, Hostetler had received world-wide
attention about his odd sentencing when he ordered two
men, who had thrown beer bottles at a car and taunted a
woman, to dress in women's clothing and walk down
Main Street.
.
As Judge Hostetler says, "Creative sentencing is
not a substitute for jail overall." Offenders need the threat
of jail or prison to compel them to do the alternative
sentences that will hopefully rehabilitate their criminal
thinking and fly right.
Judge Mike Erwin of Baton Rouge, Louisiana,
ftrst ventured out of the rule book in the early 1990s. A
young man had hit an elderly man in an argument that was
over something really stupid. Erwin ordered him to listen
to a John Prince song entitled 'Hello In There,' which is
about lonely old'people and write an essay about it. Erwin
says he thinks it really had some impact on the young
man. Also, in trying to make people reflect on their
actions, Judge Erwin had imposed a creative sentence on
four college students who stole an exotic bird from a pet
store. When he asked the offenders, "How did anyone
think this was a good idea?", and they couldn't answer,
Erwin fmed them and made· them write "I will not do
stupid things" 2,500 times, plus an essay.
Some' of the creative sentences that judges have
imposed are not so wacky but still makes the person think
about their wrongdoing and are considered by some to be
down right mean and cruel. Like when a Butler County
judge. in Pennsylvania made an offender carry around a
photograph of the- man she killed. The offender's lawyer
and family said, "We believe it WIIS cruel and morbid" It
was the family of the victim that chose the photograph it was of the man she killed laying in his coffin.
I don't know about you, but I'm glad that there
are people in the judicial system that are finally seeing that
rehabilitation does work. I can only hope that the trend
will grow and show the citizens that it does. In agreeing
with ·what· Judge Erwin says, "We've got so many
problems with poverty, education, and drugs, we'll never
get to the root ofthe problem., I just try to grab at some of
the ones who are sinking and try to save them."
[Source: USA Today, 2/24/04]. •

Nurses Indicted in Murder of Teen
On January 27, 2004, two nurses who worked for
Miami Children's Hospital under a contract with the 226bed Miami-Dade Regional Juvenile. Detention Center were
21----------------~

- - -........- - - - - - - - - - - FLORIDA PRISON LEGAL

charged with mur~ and rnanslaughterfor allegedly
:failing 'to treat ,'a -17-year~ld inmate' who died of a
ruptured apPendix after th&e days in pain. .
..
A Miami-Dade county grand JUry mdlctment
charged" the women skipped examinations or falsified
medical recQrds on Omar Paisley, who spent his last days
"in agony lying on a concrete bed," the panel's report said.
The grand jury also ended a nine-month
investigation by calling for wholesale changes in health
Care, 'staffing, and surveillance at the jail, offering 20
'~mmendations to ''prevent another unnecessary death:·
Although reServing indictments for the nurses
,,
only, the panel criticized the jail staff broadly and said
several people played roles in Paisley's death. The grand
jury openly declared they were appalled at the utter lack of
Jiunuinity demonstrated by many of the detention workers
,charged with the safety and care of our youth.
, . At every turn in their investigation, the grand jury
claimed they ,were confronted with incompetence,
ambivalence, and negligence on both jail staff and its
'medical contractors. The grand jury noted in frustration
that the state agency itself is immune to criminal
indictments. One Miami lawmaker has called, for the
removal' of the' agency's secretary, Bill Bankhead, while
Gov: Jeb Bush defended the wayward secretary.
[Source: Press Journal, 1/28/04] •

, 'Unsearched FBI Files May
Affect Defendants Nationwide
.
In. an alleged oversight that could affect cases
nationwide, the FBI hasn't routinely, searched a special
computer space where agents store investigative
documents' to see whether the materials should be sent to
defense lawyers, Congress or special investigative bodies.
"
The existence of' the unsearched "I-drive"
computer files, brought to the attention of the Associated
Press by concerned FBI agents, could give lawyers an
avenue to reOpen numerous cases to determine whether
documents that could have aided the defense of defendants
were withheld.
The FBI is uncertain about the nature or breadth
of the documents on the computer space and has asked its
internal investigiltion unit, its inspection division, to
determine how many documents on I-drives in FBI offices
did not make it into official ease files.
If m8ny documents are found, a review would
begin to determine whether they should have been turned
over to defense lawyers.
.
Robert J. Garrity Jr., the FBI deputy assistant
director in charge of records management, said the I-drive
was' created in 1996 and agents use it to upload
investigative documents like interview reports,
investigative inserts, and teletypes so their supervisors' can

PerspectIves - - - - - - - - - - - - - -

approve putting them into the FBI's official case files,
which ,still are in paper fonnat.
Garrity acknowledged that those records that do
not get into the FBI's official case files or its automated
computercase system would not be searched for material
that should be turned over to defense lawyers.
Under a landmark Supreme Court case, Brady v.
Maryland, prosecutors and police are required to disclose
all materials that might help defense lawyers prove the
innocence oftheir clients.
[Source: St. Petersburg Times, 3/3/04] •

u.s. Supreme Court to Consider
Effectiveness Standards for Attorneys
and Segregated Prison CeUs
The u.s. Supreme Court announced it will
consider effectiveness standards for attorneys, focusing on
a Florida case of a condemned man whose lawyer
admitted his guilt.
'
In 2000 the Florida Supreme Court ordered a new
trial for Joe Elton Nixon who was.convicted in the 1984
murder ofJeanne Bickner near Tallahassee.
At issue in the case is the decision of Nixon's
public defender to tell jurors the woman died a "horrible,
horrible'" death and that his client was guilty, in hopes that
his candor would persuade the jury to spare Nixon's life.
The strategy did not work. Nixon was sentenced to death.
An appeal by Nixon, handled by a new attorney,
reached Florida's high court in 1987. The court sent the
case back to the trial judge in Leon County for a hearing
on whether Nixon, who had refused to attend his trial, had
explicitly agreed to the defense strategy. Two years later,
the judge ruled that Nixon's new lawyer hadn't proved
lack of consent.
•
In 1990, the Florida Supreme Court upheld
Nixon's conviction. It received the case again as the
result of a new appeal begUn by another attorney. The
Court ruled that the question on consent had never been
resolved and ordered a new trial.
In its rehearing argument, the state said Florida
justices were wrong to rule that "consultation and
acquiescence was not 'enough," The state further argued
that "the Florida Supreme Court failed to give any
deference to trial counsel's strategic choices or to his
evaluation of the risks of contesting guilt when the
evidence ofguilt was overwhelming."
Nixon had agreed to plead guilty in Bickner's
murder in exchange for a life sentence, but the prosecutor
refused, according to court records. So, his lawyer told
jurors there was no doubt of his guilt, but the real question
was whether he deserved to die.
Nixon's trial counsel said he told him of his plans
and that he did not object.

22·---------------

- - - - - - - - - - - - - - FlORIDA PRISON LEGAL

Nixon did not attend his own trial; he refused to
enter the courtroom. The judge held a hearing in a cell to
make sure Nixon was waiving his right to attend the trial.
Nixon told the judge he wanted another attorney and that
he would disrupt the trial otherwise.
The Supreme Court will hear arguments in the
fall. The case is Florida v. Nixon, 03-931.
In another case accepted by the U.S. Supreme
Court for review, the Justices will consider whether state
prisons may separate new inmates by race as a safety
measure. Fifty years ago the Court declared racial
segregation unconstitutional in public schools.
California routinely assigns newly arrived black
prisoners to bunk only with other black prisoners for three
months or more, and likewise assigns white and Asian
inmates to cells with others oftheir race or ethnicity.
A black prison inmate challenged the practice as a
violation of his constitutional right to equal treatment. He
also argued the policy flouts previous Supreme Court
'rulings striking down segregation in other areas.
"Intentional state racial segregation has been
outlawed in this country 'for over half a century," argued
lawyers for the prisoner.
Prison officials say housing inmates by race helps
keep prisoners safe from racial violence, and note that
wardens also look at factors such as an inmate's age and
health in deciding who rooms with whom.
Segregation is temporary, California Attorney
General Bill Lockyer told the' Supreme Court in a court
filing, and the policy applies only to the two-person cells
in which inmates are housed when they fust enter the
prison system or when they are transferred from one
prison to another.
During this period, inmates are assigned to twoperson cells according to whether they are, black, white,
Asian or "other."
Within those, categories, prison
authorities also, separate certain groups by national or
geographic origin. For example, they do not house
Japanese and Chinese inmates together.
The rest of the prison system is not segregated,
and inmates are often allowed to eventually choose their
cellmates without regard to race. The San Franciscobased 9lb Circuit Court of Appeals ruled against the
prisoner last year.
Prison officials had sound reasons to want to
separate inmates by race, and did not treat one race better
than another, the appeals judges said.
The Supreme Court will hear the case of Johnson
v. California in the fall, and rule by July 2005. •

Federal Habeas Corpus in State
Prison Disciplinary Challenges
by Oscar Hanson
After years of silence, the Eleventh Circuit Court
of Appeals has finally spoken on the issue of whether a

Perspectives - - - - - - - - - - - -_ _

state_ prisoner challenging disciplinary proceedings in
federal court must utilize Section 2241 or 2254. For
anyone familiar with the Il tb Circuit, their long and
tortuous opinion should surprise no one.
The appeal that lead to the published opinion
came from Florida prisoner Daniel Clark Mooberry who
filed separate habeas corpus petitions challenging two
separate prison disciplinary actions against him. The
district court denied both petitions. Pursuant to 28 U.S.C.
2253 (c), the U tb Circuit granted a certificate of
appealability (COA) on very limited issues. Does that
give you a clue to how the court ruled? Don't make
presumptions, the outcome is not always what it seems.
The relatively simple issue of whether habeas
petitions challenging prison disciplinary proceedings
should be evaluated under 2241 or 2254 has becomo
complicated, if only' in appearance. The volume of habeas
corpus litigation in the federal courts has led to the use of
casual language when describing the procedures and
remedies available to prisoners seeking relief. The II III
C~it recognized that this lack of precision has, over
time, created uMecessary,confusion.,
The Court's opinion attempts to clear up some of
the confusion by holding that. Medberry's petition was
"authorized" by Section 2241, but it also is "governed" by
Section 2254 because he is in custody. pursuant to the
judgment ofa state court.
For the sake of completeness" the Court looked at
the history of federal habeas corpus focusing specifically
on the following discrete points in time: (I) the 1789
grant to the, federal courts of the limited power to grant
writs of habeas corpus; (2) the 1867 Amendments to the
federal habeas statutes; (3) the· 1874 codification of the
statutes; (4) the 1948 recodification; (5) the 1966
Amendments; and (6) the 1996 AEDPA Enactment
(Antiterrorism and Effective Death Penalty Act).
After reviewing the relevant .history the Court
determined that there are two distinct' means of securing
post~nviction relief in the federal courts: an application
for a writ of habeas corpus governed by 2241 and 2254
and a motion to vacate a sentence governed by 2255.
Because the post-conviction statutes are complicated and
cumbersome, oftentimes the federal courts found it
convenient to refer generally to cases implicating these
statutes as "habeas corpus cases."
The Courts also employed seductively simple
shorthand references such as 2241 petitions, 2254
petitions, and 2255 petitions. However, they conceal
important distinctions between the two· remedies
according to the Il lb Circuit.
In drawing the distinction, the Court expounded
on the narrower of the two remedies: the Section 2255
motion to vacate a federal prisoner's sentence. Section
2255, as the Court explained, permits federal prisoners
under sentence to move the federal court to vacate their
sentences only if: (I) "the sentence was imposed in

23 - - - - - - - - - -

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

violation of the Constitution or laws of the United States;"
(2) "the court was without jurisdiction to impose Such
sentence;" (3) "the sentence was in excess of the
ritaximum authorized by law;" or (4) the sentence is
"otherwise subject to collateral attack." See: 28 U.S.C.
Section 2255.
.
Turning to the writ of. habeas corpuspi'oper,the .
Court first pointed out that the writ of habeas corpus is a
single post-conviction remedy principally governed by
two different statutes. Compare 28 U.S.C. 2241 and 2254.
According to the I] th Circuit, these are identical statutory
references of the writ of habeas corpus and must be read
as referring to the same remedy, citing Sorenson vs. Sec y
ofthe Treasury, 475 U.S. 85],860 (]986).
While the Court recognized previous rulings
citing both of the statutes that apply to a state prisoner
seeking the writ of habeas corpus" the Court claimed the
difference between the two statutes lies in the breadth of
the situations to which they apply. Section 2241 provides
that a writ of habeas corpus may issue to a prisoner in the
following five situations:
(1)
He is in custody under or by color of the
authority of the United· States or is
committed for tria] before some court
thereof, or
(2) •He is in custody for an act done or
omitted in pursuance of an Act of
Congress, or an order, process, judgment
or decree of a court or judge of the United
States; or
(3)
He is in custody in violation of the
Constitution or laws or treaties of the
United States; or
(4)
He, being a citizen of a foreign state and
domiciled therein is in custody for an act
done or omitted under any alleged right,
title, authority, privilege, protection, or
exemption claimed under the commission,
order or sanction of any foreign state, or
under color thereof, the validity and effect
of which depend upon the law or nations;
or
(5)
It is necessary to bring him into court to
testify or for trial.
Section 2254, on the other hand, applies to a subset of
those to whom Section 2241 (cX3) applies, i.e., it applies
to "a person in custody pursuant to the judgment of a State
court" who is in custody in violation ofthe Constitution or
Law or treaties of the United States. Thus, according to
the ] Ith Circuit, Section 2254 (a) is more in the nature of a
limitation on authority than a grant of authority. The
Court asserts that Section 2254 presumes that federal
courts already have. the authority to issue the writ of
habeas corpus to a state prisoner, and it applies restrictions
on granting the Great Writ to certain state prisoners - i.e.,
those who are "in custody pursuant to the judgment of a

Perspectives - - - - -

_

state court." This, according to the ] IIh Circuit, indicates
that it is not itself a grant of habeas authority, let alone a
discrete and independent source of post-conviction relief.
The Court found nothing in the history of 2254 to
suggest that this section is anything more than a limitation
on the preexist~g authority under 2241 (c)(3) to grant the .
writ of habeas corpus to state prisoners. The court
interpreted the 1948 codification that c:reated 2254 as
merely a codified judge - made restriction on issuing the
writ of habeas corpus as authorized under 2241. Because
it was merely declarative of judicial limitations imposed
on habeas relief under 2241,2254 could not possibly have
created a new post-conviction remedy. Section 2254 (a)
merely specifies the class of state prisoners to which the
additional restrictions of 2254 apply. In sum, the Court
believes 2254 is not an independent and additional postconviction remedy for state prisoners; there is but a single
remedy, the writ ofhabeas corpus.
.
In an attempt to harmonize 2241 and 2254, and
thlls answer the much debated question fmally brought to
a head in the present appeal, the 11 th Circuit turned to the
canon of statutory construction that the more specific
takes precedence over the more general. See: Edmond l'S.
United Stales, 520 U.S. 65 I, 657 (1997).
App1ying this canon of statutory construction, the
Third Circuit Court of Appeals concluded that an
application for a writ of habeas corpus by a state prisoner
serving his sentence is subject to the requirements of
2254. See: Coady l'S. Vqughn,251 F. 3d 480, 485 (Jill Cir
2001).
The Third Circuit stated that both Sections 2241
and 2254 authorize a prisoner to challenge the legality of
continued state custody, but that to allow the prisoner to
file his petition in federal court pursuant to Section 224]
without reliance on Section 2254 would thwart
Congressional intent. The 11 th Circuit agreed with this
analysis.
The 11 th Circuit's reading of2241 and 2254 'as
governing a single post-conviction remedy, with the 2254
requirements applying to petitions brought by a state
prisoner in custody pursuant to .the judgment of a state
court, gives meaning to Section 2254 without rendering
2241 (cX3) superfluous. Under the 11 th Circuit's reading,
there remain some state prisoners to whom 2254 does not
apply. Section 2254 is limited to state prisoners in
custody pursuant to the judgment of a state court.
However, state pre-trial detention, for example, might
violate the Constitution or the laws or treaties of the
United States. Yet a person held in such pre-trial
detention would not be in custody pursuant to the
judgment of a state court. Such a prisoner would file an
application for a writ of habeas corpus governed by 2241
only, according to the I I!II Circuit. The Court claims that
to read Sections 2241 and 2254 other than as the court did
would effectively render 2254 meaningless because state

24----

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prisoners could bypass its requirements by. p~ing
under Section 2241.
To underscore its reasoning, the 11 111 Circuit stated
that· if 2254 were not a restriction on 2241's authority to .
grant the writ of habeas corpus, and were instead a
freestanding, alternative post-conviction remedy, then
2254 would serve no function at· all. It would be a
complete dead letter because no state prisoner would
choose to run the gauntlet of 2254 restrictions when he
could avoid those limitations simply by writing Section
2241 on his petition~ In addition, the Court stated. that all
of Congress's time and effort in enacting 2254, amending
it in 1966, and further amending it in 1996 with the
provisions of AEDPA would have been a complete waste.
Section 2254 would never be used or appli~ and all of
the thousands of decisions over the past half-century from
the Supreme Court and other federal courts interpreting
and applying the of2254 would have been pointless.
Medberry's argument centered around the fact·
that Section 2254 does not apply where the exact custody
of which he complains is from the result of an
administrative proceeding, which are not state court
judgments. But the Court reasoned that the administrative
proceedings are merely ancillary to the underlying state
court judgment.
After establishing that state prisoners must utilize
Section 2254 if indeed their petition falls within the ambit
of 2254, the Court addressed the issue of whether
prisoners are required to obtain a certificate of
appealability to proceed on appeal from a denial at the
district court level. Medberry argued that the Section
2253 (c) (I) (A) COA requirement does not apply to his
petition because the detention of which he complained of
arose out of a prison disciplinary proceeding and not "out
of process issued by a State court." The 11 th Circuit
disagreed.
The Court explained that the Section 2253 (c) (I)
(A) COA requirement applies where the "detention
complained of arises out of process issued by a state
court." The Court determined Medberry espoused far too
narrow a reading of this language.
Medberry's
incarceration originated in state court process - a
judgment sentencing him to a term of years. The term of
imprisonment ordered by the state court had not yet
expired. The prison disciplinary board has no authority to
change the judgment. What the board has the power to
do, however, is release him early or to delay his earlier
release. The prison disciplinary action of which Medberry
complained would not have occurred had he not in the .
first instance been convicted and sentenced through the
state court process, wrote Circuit Judge Black.
In sum, the 11 th Circuit held that Medberry's
petition was subject to both Section 2241 and 2254 and
that he is required to have a COA in order to obtain review
in their Court as to the merits of his challenges to the
disciplinary proceeding. In their sardonic conclusion the

Perspectives - - - - - - - - - -

_

,

C~urt d~ied Medberry's COA request and cited what has
been their blanket 'approach and resolution to virtually aU
COA requests: Medberry failed to make a substantial

showing of the denial of a constitutional right. Maybe the
Court can devote as much attention to the question of what
it takes to make such a substantial showing as they did in
this opinion because its obvious nobody else seems to
know, at least not in this circuit.
[Editor's Note: The full text of this diatribe can be read in
Volume 17 of the Florida Law Weekly Federal. See:
Medberry v. Crosby, 17 Fla.L.Weekly Fed. C79 (11 th Cir
11125/03)]. •

Florida Parole
Parole Revocations
Technical Violations vs. New Offense Violations
The majority of parole revocations of Florida parolees an: for
technical violations. Very few parolees have their paroles
revoked for commilling a new· offense while on parole. Under
Florida Parole Commission policies. even a minor violation of a
technical condition of parole may result in revocation of parole
and a return to prison. This chart shows the parole revocations
for the past ten years,
ImTcchnical Violallolll _New Ofrcme

I

Chart Values
Fiscal Years

Technical

92-93
93-94
94-95
95-96
96-97
97-98
98-99
99-00
00-01
·OJ-02
02..03

134
122
125
129
103
105
109
88
95
79
8J

New Offense

33
. 18
25
13
9

Totals

8

167
140
150
142
112
111
118
98
J01
87

5

86

6

9
10

'6

Prepared by Ihe FPLAO Parole Projeal

25 _.- - - - - - - - - -

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- - - - - - - - - - - - - - FLORIDA PRISON LEGAL
".<

.:;

I

!.~lr:ft.,.£~,1

Perspectives - - - - - - - - -

_

.Ef ··,/f"'IA'.C!.]C\l?,~

I·::-~~~.~·.~~ ..~P~ '~."g~

The following are summaries ofrecent state andfederal cases that m~y he useful to or have a significant impact on Florida prisoners.
Readers should always read the full opinion as published in the Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal
(Fla. L. Weekly Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Supplement 2d (F.Supp. 2dJ, since these summaries are for general information only.
'.

u.s. SUPREME COURT
v.
Close,
17
Fla.L.WeeklyFed. SI71 (2125/04)
A Michigan prisoner, Shakur
Muhammad, brought a federal civil
rights violatiQn lawsuit against prison
official Mark Close alleging that
Close charged him with threatening
behavior and subjected him to
mandatory prehearing confmement
in retaliation for prior suits and
grievances he had filed against
Close. Under Michigan prison rules
mandatory prehearing confinement
was required because of the
seriousness of the charg,e.
At the disciplinary hearing
six days later Muhammad was
acquitted of threatening· behavior, but
found guilty of the lesser infraction
of insolence, for which prehearing
confinement was not mandatory..
Muhammad was sentenced to 7
additional days of confinement and
30 days Joss of privileges for
insolence.
After,
presumably,
exhausting
all
administrative
remedies, Muhammad filed his
federal suit alleging retaliation. In
amending his original complaint
Muhammad did not challenge his
conviction for insolence (in fact he
admitted he was insolent) or the
subsequent disciplinary action taken
against h~ on that charge. Instead,
the amended complaint only sought
510,000 in compensatory and
punitive damages "for the physical,
mental, and emotional injuries
sustained" during the six days of
prehearing confinement mandated by
Close's overcharging Muhammad
with threatening behavior that's

Muhammad

attributable to Close's retaliatory
motive.
After
discovery,
the
Magistrate Judge recommended
summary judgment for Close
asserting that Muhammad had failed
to present sufficient evidence of
retaliation to raise a genuine issue of
material fact. The District Court
Judge adopted the recommendation.
Muhammad appealed to the
Sixth Circuit Court of Appeals. That
court, in an unpublished opinion,
affmned the summary judgment, but
not for the same reason as the
District Court. The appeals court
affirmed by holding Muhammad's
action was barred by Heck v.
Humphrey, 512 U.S. 477 (1994),
because,
claimed
the
court,
Muhammad sought expungement of
the misconduct charge from his
prison record. Relying on circuit
precedent, the appeals court held that
an action under 42 U.S.C. § 1983 to
expunge the misconduct charge and
for other relief occasioned by the
misconduct charge could only be
brought after satisfying Heck's
"favorable terminationtt . requirement.
(Heck established that a litigant must
first resort to state litigation or
federal habeas corpus opportunities
to
challenge' an
underlying
conviction or sentence where success
in a § 1983 civil rights suit would
implicitly question validity of the
conviction or duration of sentence.
[The Heck principle was extended to
prison disciplinary proceedings in
Edwards v. Balisok, 520 U.S. 641
(1997].) Thus, the Circuit Court
maintained
a
split
on
the
applicability of Heck to prison
.disciplinary proceedings in the
absence of any implication going to

26----

the fact or duration of the underlying
sentence. Four other circuits have
taken a contrary view.
Muhammad sought certiorari
review from the Supreme Court,
which was granted. The high court
determined the appeal court's
decision was' flawed as to fact and
law.
The high court noted
not
seek
Muhammad
did
expungement of the misconduct
charge (he sought damages for
retaliation, a fmding of which would
not overturn the misconduct charge
or punishment for same).
.
As to applying Heck, the
high court held the appeal court erred
there too by mistakenly applying
Heck categorically to all suits
challenging
prison
disciplinary
proceedings, regardless of whether
they implicate' the validity of the
disciplinary conviction and ./ or
duration of time to be served. (where
forfeiture of gain time would be
involved) or nol The high court
noted the Magistrate Judge expressly
found or assumed that no gain time
credits
were
eliminated
by
Muhammad's
prehearing
confinement,' thus the high court
noted, Heck did not apply since
Muhammad's § 1983 did not raise
any claim on which habeas relief
could have been granted.
Close tried to claim at the
Supreme Court level that if
Muhammad's
§
1983
were
successful Muhammad would be
entitled to restoration of some gain
time credits, but the high court said
that since that was not alleged in
either the district or appeal court
Close could not raise it now.
The case was reversed' and·
remanded for consideration of '

_

- - - - - - - - - - - - - - flORIDA PRISON LEGAL Perspectives - - - - - - -

summary judgment on the issue of
whether Muhammad had presented
(or can present) sufficient evidence
of retaliation to raise a genuine issue
of material fact, as initially
detennined in the district court.

FLORIDA SUPREME COURT
Crosby v. Bolden, 29 Fla.L.Weekly
S75 (Fla. 2/12/04)
Initially the Florida Supreme
Court accepted jurisdiction to review
Bolden v. Moore, 28 Fla.~.Weekly
DI87 (Fla. I" DCA Jan. 8,2003), a
decision of a district court of appeal
certifying a question to be of great
public importance. Upon reflection
and further consideration, the Court
exercised
its
discretion· and
discharged jurisdiction. The holding
of the district court remains intact,
which decided that the Florida
Department of Corrections had no
statutory support for tolling Bolden's
conditional release supervision on
one expired sentence while he
continued
to
serve
another
incarcerative sentence imposed as
part of related offenses. The DCA
distinguished Bolden's case from the
Supreme Court decision in Evans v.
Singletary, 737 So.2d 50S (Fla.
1999), where the Court held that the
DOC may use an unexpired
conditional release eligible sentence
to determine
the length
of
supervision and then toll the running
of that supervision period until the
inmate has been. released from
prison.
This ruling applied to
"unrelated" crimes, not "related" as
in the Bolden case.
Topps v. Stale, 29 FIa.L.Weekly S21
(Fla. 1/22/04)
On June 12, 2001, Martha
M. Topps filed a petition for writ of
mandamus in the Florida Supreme
Court challenging the Stop Turning
Out Prisoners Act, which amended
various statutes to require that
inmates serve eighty-five percent of

their criminal sentences in prison.
Topps alleged that the Florida
Legislature should not have been
permitted to pass a law reducing the
amount ofgain time an inmate could
receive because the Legislature
should have accomplished the result
through the mechanism of a
constitutional amendment.
The
Supreme Court denied the petition by
simply issuing an unelaborated order
denying relief. Topps filed another
petition for writ of mandamus
asserting the identical issue.
In the case above, the
Supreme Court denied the petition
based on the application of the
doctrine of res judicata. However,
the Court did establish a new
principle of law for future
circumstances where the same
procedural vehicle or claim for relief
is sought following the adjudication
of the claim in a previous
proceeding.
In the past the doctrine of
judicata barred relitigation in a
subsequent cause of action not only
of claims raised, but also claims that
.could have been raised.
This
doctrine only applied where the
merits of the cause were addressed.
Although it is clear that a decision on
the merits must have been made
became
before
res
judicata
applicable, Florida case law has been
totally unclear and often in conflict
as to whether an unelaborated denial
of relief related to extraordinary writ
petitions should be considered a
decision on the merits.
Now, the Supreme Court has
mandated that unelaborated denials
in extraordinary writ cases shall not
be deemed denials on the merits.
The Court reasoned that it is not
unreasonable nor does it impose an
unnecessary burden upon courts to
require that all Florida courts enter
orders that can be clearly understood
in terms of scope and impact of the
determination upon the parties and to
be uniform in the application of
Florida law.

res

_

State v. Giorgeni, 29 Fla.L.Weekly
S9S (Fla. 3/4/04)
Co~
The
Supreme
exercised jurisdiction to review a
decision from the Fourth District
Court of Appeal on a question the
court certified to be of great public
importance.
The Supreme Court
rephrased the question as follows:
Does the crime created by the sexual
offender registration statutes require
the State to prove knowledge of the
registration requirement by the
offender as an element of the crime?
The Court answered the question in
the affirmative holding that before an
offender may be held criminally
liable for failing to register pursuant
to sections 943.0435 and 944.607(9),
the State must prove that he was
aware ofa registration requirement.

DISTRICT
APPEAL

COURT

OF

Maynard
v.
Department
of
Corrections, 29 Fla.Weekly D303
(Fla. I" DCA 1/29/04)
Florida prisoner Maurice
Maynard appealed an order by which
his civil action against the
Department of Corrections was
dismissed upon a fmding that the
appellant failed to provide the
Department of Insurance with the
presuit notice .required by section
768.28(6)(a), Florida Statutes (2000).
Although the appellant apparently
sent notices to several entities, those
notices, the appeal court claimed, did
not fully satisfy the requirements of
section 768.28(6)(a), and the action
was properly dismissed.
Maynards' claim was based
on negligence while he was housed
at Liberty Correctional Institution.
In proceeding on his claim against
the DOC the appellant relied on the
state's waiver of sovereign immunity
set forth in 768.28, FS, but this
statute expressly precludes the action
unless a written claim is first
presented to the appropriate agency
and the Department of Insurance.

27 ---_~---

-

_

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAl

See: 768.28(6Xa). . The presuit
notice requirement is a condition
precedent, see 768.28(6)(b). which
serves the purpose of giving the
appropriate entities an opportunity to
investigate and time to respond. E.g.
Metropolitan Dade County v. Reyes.
688 So.2d 311 (Fla. 1996);'
Cunningham v. Department of
Children and Families. 782 So.2d
913 (Fla. 1st DCA), rev. denied, 797
So.2d 585 (Fla. 2001). And as an
aspect of the sovereign immunity
waiver, the section 768.28(6Xa)
notice provision is strictly construed,
with strict compliance r:equired. E.g.
Levine .v. Dade County School
Board,442 So.id 210 (Fla. 1983).
In this case the Court found
Maynard completely failed to notify
the Department of Insurance.thus the
action was properly dismissed. '

Forbes v. Crosby. 29 FILL. Weekly
D488 (Fla. 1II DCA 2/24/04)
From time to time we
publish opinions 'of the district court
that discuss a preViously established
point of law. We do this not to be
redundant but to ensure new readers
or prisoners are familiar with the
relevant point of law. This is one of
those instan~.
Florida prisoner Everitte
Forbes filed ,a petition for writ of
mandamus in the circuit court
challenging the forfeiture of 60 days
of gain time as a result of prison
disciplinary proceedings. A show
cause order was issued. and, , after
considering the DOC's response. the
mandamus petition was denied.
Forbes sought certiorari review in the
district court.
, Forbes alleged that' the
circuit· court erred in acting on his
mandamus petition without affording
him time to file his reply to the
DOC·s response. citing Bard v.
Wolson. 687 So.2d 254 (Fla. 1st DCA
1996).
The' DOC moved to
relinquish jurisdiction to the circuit
court, essentially agreeing with
Forbes's argument on this point. But
instead of relinquishing jurisdiction,

Perspectives - - - - - - -

the First DCA found that the
appropriate disposition in this
circumstance was to grant the
petition, and quash' the circuit court
order with directions for further
proceedings on the merits of
Forbes's reply to the DOC·s
response.

Pearson v. State. 29 Fla.L.Weekly
0492 (Fla. 1II DCA 2/26/04)
Philip Pearson challenged a .
trial court order that denied his
motion for post conviction relief
alleging ineffective assistance of trial
counsel. The DCA concluded that
counsel was not ineffective for·
failing to move for dismissal of
charges of robbery with a deadly
weapon and grand theft on the
ground that the statute of limitations
had expired because the information
was timely' filed within the
limitations period. which was tolled
during
defendant's
continuous
absence from the state.
The Court held that there
was no requirement that the
defendant·s absence from the state
must hinder the state from
proceeding with the prosecution.
Instead, the DCA recognized that the
case law from the Second DCA
added this· requirement first to
section 775.15(5).' and later to
section 775.15(6). See: State v.
Miller. 581 So.2d 641. 642 (Fla. 2d
DCA 2001) (holding where the
defendant's absence from the state is
not the fault of defendant and does
not hinder prosecution, the statute of
limitations is not tolled· pursuant to
section 775.15(5). FS); Netherly v.
State. 804 So.2d 433, 436-37 (Fla. 2d
DCA 2001) (holding where the state
is unable to demonstrate that the
defendant's absence from the state
delayed prosecution, the statute of·
limitations is not tolled pursuant to
section 775.15(6) FS).
The· First· DCA analyzed
each of these holdings and agreed
that the Second DCA's decision in
Miller appeared to be proper because
the dispositive issue under section

28-----

--.:.__

775.15(5) is whether the state·s delay
in prosecution is reasonable. Thus,
in considering the reasonableness of
the delay, .it is appropriate to look to
whether the defendant's absence
from the state hindered the
prosecution. 'The DCA, however,
disagreed with the Second DCA's
holding in -Netherly because section
775.15(6) does not require that the
delay in prosecution be reasonable in
order for the statute of limitations to
be tolled. Based on· the express
language of section 775.15(6),
prosecution in this matter was timely
commenced, as Pearson was
con~uously absent from the state
and his absence resulted in. the tolling
ofthe statute of limitations.
The First DCA denied
Pearson's claim and certified conflict
with .the Second DCA's holding in
Netherly.

Ondrey
v.
Patterson,
29
FIa.L.Weekly D522 (Fla. 2d DCA
2127/04)
In this civil action case.
Florence Patterson, as the personal
representative of the estate of her
son. John W. Patterson, sued Mark
Ondrey, a corrections officer with the
Pinellas County Sheriffs Office, and
others, for the wrongful death of
John Patterson.
John committed
suicide while he was being held in
the Pinellas County Jail. In a motion
for summary· judgment, Corporal
Ondrey alleged that the principles of
sovereign immunity and qualified
immunity precluded suit" against him.
The trial court denied Ondrey·s
motion and on certiorari review, the
Second DCA concluded that the trial
court did not depart from the
essential requirements of the law
and, therefore. denied Ondrey's
petition for review.
The facts" of this case show
that John Patterson turned himself in
to Sheriff officials after he learned
that there was a warrantJor his arrest
for violation of probation.
At
booking it was discovered that John
was taking medications that had been

_

•

I

- - - : - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - -_ _

prescribed for depression and bipolar
disorder, with psychotic features.
John admitted to a prior suicide
attempt
and
based on
that
information a psychiatric assessment
was performed.
The assessment
records reflect that John was anxious,
manic, and fearful. and that he
displayed some confusion. Prior to
going to jail, John. had been
hospitalized for depressed mood and
suicidal ideation. John was held at
the jail
in
a
psychological
observation unit from September 28,
1999, until his death on October 1,
1999. Corporal Ondrey was on duty
in the unit, between 3:30 P.M. and
11:45 P.M. on September 30, 1999,
during which time he had con~ct,
with John Patterson.
In
his
affidavit
and
deposition
testimony,
Ondrey
acknowledged that he observed John
weaving something with a shoelace
and that he asked John what he was
doing. John allegedly stated he was
making a cross, Ondrey took the lace
as contraband. Ondrey stated he was
unaware of any information that John
was suicidal or had a history of
psychological symptoms.
A
fellow
jail
inmate
neighboring John's cell testified in
deposition that he saw John using a
rosary string to try and commit
suicide. Tajhon Wilson reported this
to Ondrey who discounted John's
suicide attempt.
The trial court found that the
cumulative effective of Wilson's
deposition
testimony raised a
substantial question of material fact
for resolution by a jury concerning
Ondrey's immunity. Assuming that
a jury believes Wilson's testimony,
the DCA agreed with the' trial court
that the jury could conclude that
corporal Ondrey's failure to act
under the circumstances amounted to
a wanton and willful disregard 'of
John's safety since John's suicide
attempt was ultimately successful.

.Bradford v. State, 29 Fla.L.Weekly
, D521 (Fla. 2d DCA 2127/04)

This case is a "must read"
for any prisoner who accepted a plea
agreement and now contemplates
filing for post conviction relief on
newly discovered evidence.
Florida prisoner KeMeth
Bradford pleaded guilty to multiple
robbery charges and later filed a
motion for post conviction relief
pursuant
to
Rule
3.850,
Fla.R.Crim.P., based on newly
discovered evidence.
Bradford
attached an affidavit from Kendrick
Cunninghain who stated that Adrian
. Evans, the man who implicated
Bradford in one of the robberies,
admitted to Cunningham that he had
an agreement with police to
implicate Bradford but that Bradford
did not actually commit the robbery.
The circuit court applied the
newly discovered evidence standard
set forth in Jones v. State, 591 So.2d
911 (Fla. 1991 ), in denying
Bradford's motion.
On appeal the Second DCA
recognized that the Jones standard
was virtually impossible to apply
because there was no trial and no
evidence
introduced.
Any
determinations as to the nature and
admissibility of the evidence would
be speculative. The DCA stated that
the circuit court should have applied
the more appropriate standard for
withdrawal of pleas after sentencing,
which requires the defendant to
prove that with~wal of his plea is
necessary to .correct a manifest
injustice, citing Miller y. State, 814
So.2d 1131 (Fla. 5th , DCA 2002);
Scott v; State, 629 So.2d 888 (Fla. 4th
DCA 1993).
In applying the' more
appropriate standard, the DCA
conclude the circuit court properly
denied Bradford~s claim because he
failed to allege that withdrawal of his
plea is necessary to correct a
manifest injustice.
The Court,
however,
did
affirm ,without
prejudice the circuit court's ,order
allowing Bradford to file a timely,
facially
sufficient
motion
to
withdraw his plea based on newly
discovered evidence.

. Frett v. State, 29 FIa.L. Weekly D344
(Fla. 2d DCA 214/04)
, Clarence Frett appealed his
multiple convictions and argued that
his convictions should be reversed
because he was not present during
critical stages of the criminal
proceedings against him.
Prior to the trial date,- Frett
filed a motion to dismiss his courtappointed counse~ Tracy Lee. A
hearing was held in which Frett, Lee,
and the prosecutor were present
During the hearing Lee also asked
that he be discharged as Frett's
counse~
noting that he was
concerned that he would be the
subject of a bar grievance. However,
the court inquired of both Lee and
Frett and concluded that Lee's
representation of Frett was adequate.
Consequently, the court did not allow
Lee to withdraw.
The morning of the trial, Lee
asked for an ex parte communication
with the court. While the prosecutor
was advised that a dialogue between
Lee and the court was about to take
place, Frett was not likewise
informed.
During the ex parte
hearing, Lee moved to withdraw as
Frett's counsel because he was "very
concerned about his ability to
effectively represent him." The court
again denied the motion and noted
that there had been an ex parte
discussion, but Frett was not
informed of its nature or substance;
On appeal the Second DCA
determined Frett was prejudiced by
his . absence
because, without
knowledge of counsel's statement
that he could not be effective, Frett
could not decide whether he. wanted
counsel to remain on case or move to
dismiss counsel and take .advantage
of an opportunity to represent
,himself. The Court reversed and
remanded for a new trial.

. Fuller v. State, 29 Fla.L.Weekly
.0364 (Fla. 5th DCA 216/04)
. Florida prisoner David Fuller
appealed the circuit court's decision
which denied his motion to correct

29-------

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

an illegal sentence.
The DCA
decided that a probationary sentence
on one count could not be ordered to
run consecutive to habitual offender·
sentence on another count where
both counts involved crimes that
arose from a single criminal episode.
The Court reasoned that once a
habitual offender sentencing scheme
is u~ilized to enhance a sentence
beyond the statutory .maximum on
one or more counts arising from a
single criminal episode, consecutive
sentencing may not be used to further
lengthen the overall'sentence.

[Editors Npte: This holding is in
conflict with Davis v. State, 710
So.2d 1051 (Fla. 1Sf DCA 1998) and
the Firth DCA recognized and
certified conflict.]

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Perspectives - - - - - - - -

_

3. 191(i)(4). The trial court granted
the motion for extension.
On July 18, 2001, the State
filed its Notice of Appeal upon a
question certified to the' Fourth
District Court of Appeal from the
county court. After rehearing, the
,Fourth DCA issued its final decision
and opmion in State. v. Schreiber,
835 So.2d 344 (Fla. 41b DCA 2003),
affuming in part and reversing in
part with remand to the trial court.
Mandate issued February 7, 2003.
Before the appeal was
decided; on July 19, 2001,
moved
for . final
. respondent
discharge, and the trial court denied
the motion on that date.
Once the appeal was
decided, on April ·1, 2003,
respondent filed in the circuit court, a
petition for writ of prohibition to
prohibit the trial court from
exercising any further jurisdiction
.over the case beyond. an order
discharging her from prosecution.
Respondent argued that the State's
motion for extension of time pending
appeal
was
not
legally
or
procedurally valid because it was not
filed until the five/ten day recapture
window period. The circuit court
agreed and granted prohibition.
On Certiorari review the
Fourth DCA determined the circuit
court departed from the eSsential
requirements of· the law in finding
that' the county court did not have
authority to .stay pI'QCeedings and
extend the speedy trial pending the
. state's appeal of the county court's
order on respondent's motion to
suppress because the state's motion
for extension of time was not filed
until the recapture window under
Rule 3.191. The Coqrt reasoned that
Rule 3.191(i) has been expressly
interpreted by the supreme court as
authorizing, a state motion for
extension of speedy trial time, as
long as it is made during the speedy
trial period, including the recapture
period.•

30------

_

- - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - : - - - - - - - - - - - - : . -

Know Your Disciplinary Rights!
Daniel E. Manville

The DisciplinaJy ~lf..lielp-Litig8tiOnMan~
is the only manualofits kind. ItcoverSallaspects
ofthe disciplinary prOcess,including a'detailed
discussion ofdie dracoriian changes made in
theSe piooedures by the United States Supreme
Court in Heckv. HumpIuey,Edwards v. Balisok,
and Sandin v. Connor. .
The DSIn.M discusses howprisoners should
prepare for and conduct a disciplinary he8rlng•
.The Manual. provides. guidaJ1ce for prisoners.in.
determining whether the disciplinary punishment
created an "atypical and significant hardship"
requiring federal Due PrOcess protections at the
disciPlinary hearing; The DSIn.Mdiscusses .
what federal Due Process procedures prison
officials
required to provide at the
disciplinaiy hearing ifthe punishment imposed
an' "atYPical and significant hardsIPptl on the
prisoner. The Manual sets forth the steps
prisoners must take to preserve a disciplinary
guilty finding for administrative appeal and court
litigation. The DSHLM provides a state-by-state
discussion ofthe rights prisoners have in a
particular state, and discusses the procedural
aspect oflitigating a disciplinary guilty finding
in state court.
.,
Each chapter cites to hundreds ofcases to
support the substaritiveand proceduml right that
are discussed in the Manual. Based upon these
discussions and cases cited, the DSHLM'can
assist the prisoner in preparing pleadings for
filing a challenge to a disciplinary guilty finding.

Co-Authorofthe"Prisone~s

Self-Help -Litigation Manual"
3rd Edition

Brings you:

were

Print Clearly:
Name:
Address:

City:

-----------

State:

- - - - - - - - Zip: - - - - -

Detach and send check or money order, payable to Daniel E. Manville, PC., to:
Daniel E. Manville, p.e.
P.O. Box 20321
Ferndale, MI. 48220
Phone - (248) 341-1201 .

Fax - (248) 341-1204

Email- DSHLM@comcast.net

31-------------------

- - - - - - ' - - - - ' - - - - - - - - - FLORIDA PRISON LEGAL

Persoectives - - - - - - - - - - - - - - l

"~,

".

AR - In Jan. '04 prison officials said
that prisoners who believed they had
been bitten by brown recluse spiders
may actually have fallen· victim to
staph infections.
~eral prison'
sYstems and jails have' . reported
prisoners being infected with an
apparently new strain of treatmentresistant staph infectio~ often
believed to be brown recluse spider
bites because of ~er in which it
eats flesh.
CA - A study reported in January
'04 showed young inmates.in the
state's prisons being caged, drugged
and inadequately treated.
For
punishment the inmates are often
locked in wire cages. Inadequately
trained therapists frequently treated
inmates .suffering mental illness and
substance abuse problems with
prescription
drugs instead of
providing proper therapy. "The vast
majority of the young inmates who
have mental health needs are made
worse instead of improved by the
.correctional environment," reported
University of Washiitgton child
psychologist Eric Trupin and
forensic
psychiatrist
Raymond
Paterson of Washington, D.C. "We
have got a serious problem, and
before. another teenager C9mmits
suicide, 'the California Youth
Authority has got· to get its act
together," Sen. Gloria Romero said,
who chairs a corrections oversight
committee. She further stated, "This
is not the 1930s. Even in mental
hospitals, I thought we'd gotten rid
of these practices long ago."
CA - During Mar. '04 eight
prisoners at a privately-operated
prison, Eagle Mountain Community
Correctional Facility, were charged
with murder in connection with a riot
in Oct. '03 that left two prisoners
dead. Six other prisoners were also
charged with assault with a deadly
weapon.
According to prison

officials, the riot lasted 90 minutes
and involved 150 prisoners pitting a
group of Hispanic and white
prisoners against a group of black
prisoners.
CT - According to results of a
survey released during Mar. '04,
52% of Connecticut residents polled'
said that prisoners have too many
rights. The poll, cOnducted by the
University of Connecticut, also
found
that
41 %
said
that
rehabilitation is the goal of prison
compared to 24% who said the goal
is punishment.
FL - On Fe~. 13, 2004, the
superintendent of the Miami-Dad~
Regional Juvenile Detention Center,
George laFlam, resigned as the state
finished an investigation into the
June 2003 death of 17-year-:-old Omar
Paisley at the facility. The boy died
over a period of several days from a
burst
appendix.
Laflam's
resignation came two weeks after
two nurses were charged with thirddegree murder' and child abuse
manslaughter for allegedly skipping
examinations or' falsifYing medical
records in coimection with Paisley's
illness and subsequen~ death. (See
article in this issue.)

."

State Pri~on is llmong th~ worst .
prisons in-the U.S. with conditions
there
generally
described
as
inhumane.
FL - During February the Fifth
District Court of Appeal ruled that a
former Orlando sex-crimes detective
who pleaded guilty to having a
sexual relationship with a teenage
girl did not deserve the lenient
sentence he received.
The court
overturned .the sentence of EdWin
Mann, who must now be'
sentenced on three counts of lewd or
lascivious batte.ry and one count of
lewd or lascivious molestation.
Orange Co. Circuit Court Judge John
H. Adams had sentenced Mann to
two years of house arrest followed by
25 years of probation in Nov. 2002,
but the appeals court said Mann's
crimes require at least a 25 year
prison sentence based on sentencing
guidelines.

re-

FL - During Feb. ~04 officials broke
ground on a new prison in rural
Franklin County, an area of the state
expected to grow over the next
several years. Franklin Correctional
Institution, as it will be called, will
be a ' 1,335..bed prison and
construction is' projected to be'
completed and begin accepting
It will
prisoners in June 2005.
[Source: lakeland Ledger, 2/14/04]
. become the 57th major prison in the
FL - During Feb. 2004 eight. state. The prison will cost taxpayers
prisoners at Florida State Prison, the
$53.5 million.
state's maximum security prison,
FL - On Mar; 8, 2004, Florida
went on a hunger strike to protest
corrections and probation officers, by
confinement conditions at the prison.
the hundr'eds, met in Tallahassee to
The p!isoners claimed they were
lobby legislators for increase pay and
being denied basic human needs such
better working conditions. The rally
as recreation,· decent. food, visitation
was sponsored by the, Police
and access to canteen items.
Benevolent Association, a law
Reportedly, four of th~ prisoners
enforcement union.
The officers
gave up the strike after only a few
complained to legislators that the
days. All of the strikerS were housed
officer-ta-inmate ratio is widening as
on the disciplinary wing at the
many officers leave for higherprison. According to past reports
paying jobs and .as the prison
from human rights groups, Florida

- - . . . . . . ; . - - - - - - - - - - - - - - - 32 - - - - - - - - - - - - - - - - - - - -

-------------~. FLORIDA PRISON LEGAL

population grows it is creating bad
working
conditions.
. They
complained that their 9% pay
increase over the past three years
barely beats inflation. Legislators
overseeing budget appropriations
promised to consider the complaipts,
but Gov. Jeb Bush later weighed in
against any further pay increases for
the next two years.
IL - During Mar. '04 Gov.
Blagojevich signed a bill that will
provide more than $1 million to niRe
wrongfully convicted former deathsentenced prisoners pardoned by
former Gov. George Ryan.
The
former
prisoners
will
receive
$60,150 to $161,000 each.
KS - Officials in Florence charged
the city's suspended police chief
with two counts of sexual battery.
The city counsel had suspended
.Police Chief Merlin Stout in Feb. '04
after he was arrested for improperly
touching a woman in a restaurant.
KY - Corrections Commissioner
John Rees said private businesses
could take over food service at state
prisons as early as this year. He
claims the move could· save enough
money at the state's 12 adult prisons
to raise the salary of prison guards,
which ranks 49th in. the U.S. Rees
said the state wouldn't seek bids
uriIess it concluded that a private
company can provide food services
for less money than it has been
costing the state.
LA - Webster Parish Clerk of the
Court Sueleth Frazier turned herself
in during Jan. '04 after charges were
filed against her for felony theft and
malfeasance in office. Prosecutors
claim she pocketed $130,000 in
public funds.
LA - The Louisiana State Supreme
Court refused to consider an appeal
from prison journalist Wilbert
Rideau, including a request to move
his murder re-trial out of Lake
Charles. Rideau was granted a new

Perspectives - - - - - - - - - - - - - -

trial because blacks were excluded
from Calcasieu Parish grand juries
four decades ago. He was convicted
three times for the killing of a bank
teller in a robbery in 1961 and
sentenced to death each time. His
death sentence waS commuted to iife
in prison in 1972. .
LA - Orleans Parish authorities'filed
a lawsuit in February against LSU
Hospital for the alleged dehydration
death of a prisoner two years ago.
The lawsuit claims the' LSU Health
Services Center' was contracted to
run the prison's psychiatric ward but
left it understaffed at the time that
Shawn Duncan, 24, died.
. LA - Two prisoners were killed at
the Louisiana State Penitentiary
during Feb. '04. The warden said
after the deaths that a sweep through
the prison's dormitories, cell blocks
and other areas where prisoners
work and congregate by 200 prison
guards did not discover any weapons
or contraband. (Yeah, right.)
MI - A report commissioned by the
state and released in Nov. '03 said
that as many as 18,000 of the state's
48,000 prisoners have hepatitis C,
but only 55 were being treated for
the life-threatening disease. Officials
said budget restrictions prevented
them from treating every infected
prisoner, which could cost $130
million a year. They also say the
drugs aren't guaranteed to work, and
cite to cure rates of 50% to 70% for
the potentially fatal liver infection.
.MS - State corrections officials said
prison guards did nothing wrong in
the days before the hanging death of
Christopher SmileY, a convicted
killer. Smiley was allegedly found
dead in· his cell Nov. 26, 2003, and
officials claim it ·was a suicide
according to an investigation.
However, prisoners who were
interviewed say Smiley was .beaten
by. prison guards.
The prison's
investigation concluded that the
prisoners were lying.

National - Two more states, New
.York and Wisconsin, dropped out of
a multi-state crime database program
that civil liberty groups· have called
an invasion of privacy. New York
_officials said they withdrew from tI}~_
Matrix database over questions about
federal funding for the program and
its potential benefits. Matrix lets
states share criminal, prison and
vehicle information and crossreference data with up to 20· billion
records.
Alabama, California,
Colorado, . Georgia,
Kentucky,
Louisiana,' Oregon, S. • Carolina,
Texas, Utah. and W. Virginia had
already dropped out of the program
or declined to join it. Connecticut,
Florida,
Michigan,
Ohio
and
Pennsylvania remain in the Matrix.
National - During late Feb. '04 the
U.S. State Department released its
annual review of human rights
around the world - grading each
nation on its performances in several
categories.
Only one .country
escaped scrutiny, the U.S. itself. One
area the report monitors is the
functioning of prison systems. Some
critics noted the irony of the U.S.
criticizing other countries· prison
systems, like Iceland - that has a
total of 110 people in prison, when
the U.S. has 2.2 million incarcerated
-one quarter of the world's
prisoners.
SC - During Mar. '04 prison
officials in South Carolina said they
were looking at privatizing food
lletVices in the state's prisons.
SD - During Feb. '04 a' state
legislative committee approved a bill
that would abolish the death penalty
is South Dakota. The measure, if
passed, would also commute the
sentences of four people currently on
the state's death row. _

----------------'---33-------.....;..----------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectlves - - - - - - - - - - - - - -

AM.molr
AMt 11tc.... 10 thia ncepinrt pnre-bl2:E'
~hy,Miami native. William Van Poyck· car
dsicf, burI:IIr. baak robb,r, ~ aniIt, jliJbouse . Ilicl awird winnins writer - pida readen tbrousb
:.:
a ~·iIrcidItd cour, froIIlm'.Pmu:;abueEoot
p
you to reform 1Choob, priSOIll and death row, an
1
~ four.decade o,cIyIIey
III ~!He MeftIiaalr bcfond reconciliation. Providilli a .
:
~ ~~ 1oOk. ~eCccd
die _ of raw 'expcrieItce. IDeo the
.-._---•••••••••••••••••••••••••••••••••
~ u4erbeUY ol America's cnmiDll justice I)'ltem,Van POJCk paints a I
Order Ponn
.... portrIJt 01 me hUmID condiUon, br tw'IlIJrim,humoro~~
I
~ IUId i ~ yet a1wll)'l com~ This IlO-holdt-bamd,
.
I .ACb«lmwl'MI, ioftback, 6 x,, m ~
!
. . of 6umaa.
Cuts clOM to die borie while raoaacingwith lile~
You C&II onler'from TIlllC POt PmcIon1, .0..Box 119,
hope and reclempcion.
Ocala, FL 34478 or by c*Iing 35Z-351-t280.
T

i

...of'":&\ilbiiIly

I

:

"

.

QuInllly..

How To Orden A ~ PtIIt. softback, 6 x 9, 324 paga

You cia order fr9m TUDe For Freedom, P.O. Bn 819, OQla,
FL 34478 or by ca1Iiaa 352-351-1280. Cost is $14.50, plus $2.50

PrIce:

~:

_~.

,

II

"4.50 IId1
SUO
•

ahippiagllld hUdlill&o . ' . . . . . .
-I
I
. AIIout 'I1Ie Audlon SaIreftcecI to death for hi.!*t in die 1987 Name:
!:
boceJsed ancmpc to fr" his bat frieml from a p~n traIIIJ'Ofl
AddIIII:
van in downtoWn'Wm Palm Beach, cIurin& whkh I guard 'WU
--------- I
.. ,:'.'
kiIlccl by Van Poyck" accomplice, FraU Valda, Van Poyck Jw
CIty:
--:-_.M: ~ __ i
; ,.' ' . '
f)eIIIlId two ~ Tht Tbiifl !iJ"'r of WiIJmrI, and QIiiItIf,.
lie cumady nsicleI on V'JS'iIIUI" cleaihrow where he was'
Phone: '
E-maI:.
_
trIIlIferraI ia 2999, - Florida Scite PriIon Juarcb ~ hit CO • ffjil'nt,
PIIue eend • chack Of • monlrf order 10 Iht
. I
'ruk Valda. ill his death IVW' celJ.
.
addrIA IbM.
._

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EXCERPTS.FROM,~~'A:CHECKEREDPAST'"
TIt.:fOllowlng.~~ .x~e~· of ,·.'ACh_keredftast: i

'parole'guarante&s merstrlp:to d8afh (o\y,Yetttte
prospect of thlt deat.h s,ehtetjce'l'm certain is coming
Is not what has dea~ened my splt-lt.. ll's the
.
IneScapaQlecrushlngburden\pfgulll'presslng;down-;" ' .
uponme." '., '.,.,'(;~,'"''-''','J: ::.'.<;:

·Mentolr." .bydeath.row:lnl1late :WllllaJri VanPoy~k: .
/'

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· 'I'v~ sunk' as 10* as'Us possible:to gO' '..

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'o~Ce'~OU,'lckuP'~• ~~~all·~~·~"'.'~.·.··.;,

.

.' :,~l 've squande·re,~,~w.$y mY'e'ntlreJife,thrown away
. everything I mlght.'haye been". I could have ,~eenor
dorieanythlng';';"~octor, lawyer, busln~~r(la'1,-'
architect ~I c.ould,hBv, spent illY life doing good.and
. heJpir)gothers.And'yefrChose, t~!s; Why?How did J _'
. lose wh.at;I~l'lc@~h~d? ;Slo\yly~'~ay, ~y d~Y',' WhafdQ I
,'.l1ave'to;ah1)w.for'my Ilf.."atths·:.e6d'oftheday,?·
.NotHing.' MY'~n)fre'llfe~' sinc$' a,gel~ .....:: has bee".
spent'.beN!"dbars, confUted .Uke 8 beast.In the zQO;
. Vilth myhlghest'ssp!"/itlon beln_hot to let the '..
authorities 'breal(,my"splrll-.And:now,.1 'mdestirted~to
'~Ie:ln. prl~ol'1d()st,and~f()l"gotten,'put·.to~de8th by'< ..
· society'like, a r~bld}dDg';,1 'vB s~nk: as: low as it Is .
'PO$$lbl~;to go~;snd'lIfe:Jtse,ifls,lit.terly, polntless.)tYh,t
th8.l1ell ,Is wi'qng·",lthm~?~~

"M~rder •. Theohe·sln vve;feared(m.aybe]i;\ ...

~

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unparcJonable In GO,d:s 'eye~., Ao~,Wliaf!filtts?;.Wh~lf ...
I've finally cro$Sedthe,~em~·~atl.9n:l!oett"t9~ter
damnation? The question snaw$,relentlessly,'at)TlY
!1llnd..A.II' mY life" ~ve donemYdesper8d()thlh.~ .,;,.'
'believIng-thar I'roan ;.!5ff8bie,thlel~;'c'cmfflfenfln my .
. ~bllliyto":pI8n ellBl)1hlngso'that, riOb.odygets,.~urt,"
:I'in ju.st ~ ,.p.i:rian~I,ci.R:9bl,n;~,99~lY~i;:jR'~~:~)1~ta,
.
really'battguy, ",ve ~lwaY~~·f.Js'Qretf'l11ysEflf~ fI.U,tJ'.v$., ,',
. been ·fooling:myself;!·0I1CllJ\yq~t~lclt'u~.8gUri,altb,.t~··
are 'off; you :oannot·guar~rttee:ariY~hrng.O(pI8n;:8g8t~St
the unexpected,:"";' ~: ,,:.;.......- .·ir":
'~8od was· always ....re'.

~ln~~M~c~J~t~.
b..rd.nof:••it~li": .
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'c',::; (,:

'. ··','AII-myllfeH'verunfrom God, rej&Qtfng.HfOl,"
rebelling. goln~my,~ay ;;·dj!tpendlng:on: my'owo:, '(:
strength•. B~t :th~·:splrlt:~t\c)W ....~e..,G()dW8S8tWay&.
ther~,'His hand upon m~(:w8tchil}g my evel)' step; ,
never giving up, nev~~'jors~~IQi,'me.".:" .; ", .
.

my'{:.n~;st8rl~g'at'thecelllng{1 pon~ermy·

bleakfuture~ 'feellng·.'tot81Iy numb, ,as If I.nh~bitlng.a.

baddream;Theil1urde.(of a law'enfc)rc~rhent'Qffic'er '
a ccmvicted felon on

d~ring an ,escape attemptby

34

_

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Cf;NTURY" CJ.&

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,COMMUNITY CORRECTIONAL CENTERS
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..}.~

------~-------- FLORIDA PRISON LEGAL PerspeCtives - - - - - - - - - - - - - -

lNM@E~PftJLAlJ9NON JUNE 30, 2003
• There are 21,264 more inMates in Florida prisons today than there were 9 years ago.

Inmate Population as of June 30th of each Year
1994

TOTAL

199&

';1998

1987

1998

1999

2000

2001

68,052' 81,992. 84,333

64713

86,280

68,599

71,233

72,007

53163 58497 60782
2889
3495 .3551

61282
3431

62768 64966 . 67.214 67762 69164 72520
3512
3.633
4.019
4245 4389 4.796

2002

2003

I73,653

77,318

._-

GENDER BREAKDOWN
Males
Females

RACE BREAKDOWN
22292 25152 26988 27518
32532 35584 36~100 35874
1.245' 1.321
1.256
1.228

WhIte
Black

Other

29.405
37.718
1.476

30.894
38.679
1.660

31.308
38.852
1847

21117 23.658 25437 26048 28731
30818 33588 34123 34014 34.n8
1228
1222
1.220 , 1.259
1253

27818
35824
1324

29094
36.652
1466

29.373 30383 32244
36.784 37121 38412
1.605
1660 1864

RACEIMALES BREAKDOWN
WhIte Males
Black Males
O1herMales

32,384 34588
39239 40.583
1.930 2.145

28235
36669
1.376

i

RACEIFEMALES BREAKDOWN
WhIte Females
Black Feniales
Other Females

1175
1714
0

1494
1.998
3

1551
19n
. 23

1,470 . 1504
1880
1891
101·
117

1•.?87 ;.__MOO
2.027
1,~~4
152.1 192

1935
2.068
242

2.001
2.118
270

2344
2171
281

Inmate Population by Race
on June .30, 1994-2003

..... _-_ ....•.
J.

.

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36,889- 37,718._ .'.

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31,000
28,500

28.000

-IIDWhite,

Z3.llCO
21,(100

=~i.Black

18,5QO

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;

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13.600
I

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8,500

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2002

__ •._.,

2003

_._.. _ .._

I

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FLORIDA DEPARlMENT OF CoRRECI10NS

2002-03 ANNUAL RsPoRT

36-----------------

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ FLORIDA PRISON LEGAL

from the editor•••
In the last issue of FPLP (JanlFeb '04, pg. 5) it was
noted that the FDOC has flip-flopped back and forth over
the past year, agonizing over whether to ban the
nationwide magazine Prison Legal News, or not, because
. it carries ads that offer services to help prisoners' families
reduce monopolistic gouging from prison collect phone
call rates.
In December prison officials re-imposed the ban on
PLN and in January PLN filed suit in federal court, which
got the FDOC's attention. On March IS the Department
re-re-reviewed the censorship' decision and overturned it,
saying now the phone ads present "no threat to security."
What it is, the FDOC knows it can't successfully defend
such censorship to a federal court. At most, however, the
FDOC's lifting of the ban will only lessen its overall
liability. The PLN suit will continue, seeking an injunction
requiring the Department to provide proper notice when it
acts to censor publications and seeking a declaration from
the court that the FDOC's prohibition on prisoners "writing
for pay is unconstitutional.
Recently, PLN noticed all its Florida prisOner
subscribers about the lawsuit and what it is doing to
protect their right to receive that magazine.
In the last issue of FPLP it was also noted" that
information had been received that the FDOC's rejection
and censorship of Volume 9, Issue 3 of FPLP had been
overturned. That issue of FPLP first reported on the PLN
rejections last. year and included ,aD article inf()rming
prisoners' families how they can set it up themselves'to
obtain lower rates on phone calls from incarcerated loved
ones. The FDOC censored the issue, claiming it informed
prisoners how to circumvent the prison phone system,
which it did not.
However, the info received in December that the FPLP
rejection had been overturned, was incorrect Contact with
the FDOC's central office in April resulted in us hemg
infonned that while the PLN rejections were overturned,
that because the article in Volume 9, Issue 3 ofFPLP
informs "persons" how to "circumvent [FDOC] telephone
policies" that issue of FPLP will continue to be banned
from the prisons. With that, FPLP will also be filing a
lawsuit against the FDOC contesting that censorship and
the Department's publication rejection rules and
procedures,
which
FPLP will maintain are
unconstitutional under Florida's Constitution.
As past rea6ers of FPLP already know, my wife,
Teresa Bums Posey, currently has a legal action going
challenging FDOC mail rules that, in part, restrict the
amount and content of written materials (and photographs)
sent to Florida prisoners. That case is pending in the First
District Court of Appeals where 1he final brief was filed
this month (April). We strongly believe the rules at issue
will be invalidated. We will keep readers infonned about
that case as it proceeds.

.P~ves

--~----------­

The decision has, also, been made by our Board of
Di~ors to file another lawsuit against the FDOC. That
suit, which will bCfiled by mid-May, 2004, will seek a
declarati~l1that the FDOC practice of returning rejected
mail to the sender without affording the non-prisoner
sender the right to appeal the rejection to someone other
thllD the original rejecter and without holing the mail at the
prison to allow a meaningful appeal, is unconstitutional
under the federal and Florida Constitutions. Injunctive
relief will also be sought to force the FDOC to provide
non-prisoner mail senders of Due Process when their mail
is censored and rejected, which is not now being provided.
If successful,incaming mail to prisoners that is arbitrarily
rejected and returned to the senders.
, Currently, Florida prisoner Mark Osterback has a
federal lawsuit pending seeking to force the FDOC to hold
rejected mail while prisoners have an opportunity to
appeal the rejection. The federal court just ruled·that issue
will go to trial. We believe it's important to ensure that
non-prisoners have the same opportunity and recognized
right, thus our concurrent action.
,
Some may wonder, what is the big deal with all this
activity around mail and publications going to prisoners?
The "big deal" is protecting the right to speech, the right
to send and receive communications and information,
which is often the only thing preventing our prisons from
becoming, agaiD, the hell-holes of the past. Such right is
. the most precious and valuable right that prisoners and
their outside loved ones have. That's why we with Florida
Prisoners' Legal Aid Organization and FPLP have worked
so hard over the years and will continue working hard to
protect that right But we do not work alone.
'. None of what we do. would be possible without
FPLAO's members and supporters, both free and
imprisoned. You provide the encouragement and needed
financial resources that keep FPLAO and this magazine
, going and working for us alt We at FPLAO and FPLP
send our old. and new members a big Thank You. We
know you ~derstand the struggle we are all in, its
importance, and its continuing nature.
Members are asked to continue encouraging others family members, friends, fellow prisoners, - to become
. FPLAO members and join in the work being done. If you
are, readmg this but aren't a member, I'm asking you to
join ,us now. If you believe in' the work being done for
prisoners, their families and friends, but haven't made a
donation recently, please consider sending a donation, in
any amount, even a few stamps can help out, so that the
work can continue and grow.
I believe you will fmd this expanded issue of FP~P
use1lal and infonnative. In the next issue we will start
carrying a new resource list, don't miss it I wish all my
brothers and sisters in the struggle well. 'Together, we will
continue to make changes. - Bob Posey.

37 - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

UPINION

A Prisoner's.Thoughts About the
Mtetmath of Carlie Brucia's
Murder
by John Hudson
Before I begin to write about how the February 2004
abduction and senseless murder of ll-year-old Carlie
Brucia in Sarasota, Florida. affects our rights as a people, I
want you to know I deplore crimes against innocent
children. [ want you to understand that I do not believe the
majority of prisoners in this state, and country, feel any
different. Most find such crimes deplorable and would
probably love to get their hands .on Carlie Brucia's
murderer.
[ write because Pm tired of the issue of the public's
ignorant free-floating thoughts that because the accused
whom allegedly murdered Carlie was previously
convicted of crimes, etc., that he should never have been
free, then the horrific act would not have happened. As
prisoners and convicted felons, this is a major tenet and
stigma against us - that we're all alike, no good, and never
deserving to be free, ever.
More importantly, though, I've heard and read many
free - floating thoughts from the public after Carlie's .
murder that the punishment for criminals is not tough
enough. Mainly, these complaints are that there are too
many legal loopholes that pemlit criminals to go free.
Such talk is music to a politician's ear, giving him or her a
platfonn to run for office on. After all, a society controlled
by fear will elect them.
1 agree, everyone's right in a civilized society is to be
free of fear. It is true that many no longer feel safe in their
own neighborhoods. People are robbed in the streets.
People are shot without rhyme or reason. There's the
senseless kidnapping of children like earlie. I can
.understand how people can be angry that some criminals
escape punishment through legal means, or, as some refer
to, legal loopholes.
But, these so -caned legal loopholes are everyone in
this country's sacred rights. People know that. But people
believe it" is someone else, not they, who will need the
protection of our constitutional rights. After all, only
crooks get "crossways" with. the law. So, they argue, we
must stop the legal loopholes.
But what happens when it's their child who is arrested?
Then they will mortgage their homes to bond them out of
jail, or give up their life savings to hire an attorney to
protect their child in court.
When they discover that the search was done without a
warrant or cause, but that the Qbject seized will be used
against their child anyway; when they discover that their
child's confession was coerced. but it will be used to

Perspectives - - - - - - - - - - - - - - -

incriminate their child anyway; when they learn that some
criminal or jailhouse self-serving snitch has given perjured
testimony in exchange for their freedom, but their child'
will be convicted on their testimony anyway; when they
learn that the State has withheld evidence that tends to
show their child is not guilty, but the jury made its'
decision without having heard it; when they discover the
State is fre'e to violate their child's rights because Judges
are no longer independent to make decisions because they
were labeled "soft on crime"; and when they learn that
their child, once in prison, has lost his or her rights as a
human being and can be abused. even killed, by inmates
and guards alike, maybe then they will remember that the
loopholes that they have stopped prevented their child
from receivingjustice.
Hopefuny, Carl ie's killer will be convicted and
punished using the evidence against' him. If the
government followed the law obtaining evidence, didn't
add anything to it or take anything out, the prosecutor
doesn't get over-zealous and presents the case fairly, then
it shouldn't be a problem.
What's scary is that should people be so instilled with
fear that they are willing to strip legal rights away from
ali, then the police will become handmaidens of power,
trials will be nothing more than mockeries of justice, and
the government will be free to ravage and pillage people
with utter impunity. To some extent, this has already
happened. but that's an article for another day.
And so readers, although I understand and sympathize
with the anger ilOd fear over Carlie's murder, I believe it's
wrong to label all convicted criminals "enemies of
children," and, moreover, give up sacred constitutional
rights out of fear or terror of any' enemy. If this be not so,
then we are all lost. _

(FY 2002-03)
Percent of State General Revenue Budget
Appropriated to Corrections

. 1&8$.:'
. . '.. 8.6%1"::1"==:----"'---.

.. ' , 8.60".1-':"'-_'

_

8.4$
B.2~:··
8.0%'

,Z_ ;'
7.8~<,

.

7.4!H»

7·2%'.,97.::_

5oo'.~

&--.---'---.------""'. --- _ .

,01.02' :Q2-03

38 ---------------~-

- - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - , . - - -

Florida Prisoners' Legal Aid' Organization Inc.

BECOME A MEMBER
YES ! I Wish to become a member ofFlorida
Prisoners' Legal Aid Organization, Inc.
1. Please Check ." One:

C

Membership Renewal

C

New Membership

3. Your Name aDd Address (pLEASE PRINT)
_ _ _ _ _ _ _ _ _ _ _DC,#

_

Namo
AgencylLibraryllnstitution fOrtI

2. Select ." Category
C

$15 Family/AdvocatelIndividuai

C

$9

C

$30 AuomeyslProfessionais

Prisoner

C $60 Oov't AgencieslLibrariesiOrgsJetc.

Address

City

State

Zip

Email Address and for Phone Number

lP P1eao make all c:hecb or money orders pyeblc to: flaric15 Prisoners' LcgaI AId 0rpI1zatl0n. Inc. P1cIIse c:cmplete die above form BDd scad it
with the incIlcIIcd mcmbcnhlp dues or subscrip1ion amount to: FloridIJ PrlIOMn 'up Aid OrpnIzaIlo" Inc., P.O. S.660-387, Clad. . . FL
32766. For family members or loved ones ofFlorida prisoners who 8nl uaable to doni the basic membership dues, any contrlbutlcm is acceptable
for mcmbenhlp. New,1IZI1ISCd. US poSIlIgC SIDmpS 8nl aa:cptahle from prIsonas for membcnblp dues. Mcmbcrsblps nm ODe year.

Inmate
Total Daily CoSt
($17,286 annually in FY 2002-03)
S52.oo T ... - - - - . -..-.- .. -.. -~-.----.-.
551.00

-

·sso.OO $49.00

-

$48.00
$47.00 ..-

Laws and institutions are constantly tending to
grayitate. Like clocks, they must be occasionally
cleansed, and wound up, and set to true time.
Henry Ward Breecher 1858

546.00

...

$45.00

39 - - - - - - - - - - - - - - - - -

PRISON LEGAL NPNS
SUBMISSION OF MATERIAL TO

FPLP

~:~

"\
"

\

Bc:c:ausc of the large volume or mail being
rcceivcd. financial considerations. and lite
inability (0 provide i~divlduallcgaJ assistance.
membcn should not Iatd copies of IcgaJ
c!ocumaus of paading cr pcdCntiaI ClRS ID
FPU' without IIaving fust c:onta=d the staff
and receiving directions to send Sllrrte. Nei1hcr
FPLP. nor its stan: are responsible for" any
unsolicited material senL
.
Members are rcqucstcd to continue sending
news infmmatiO(l. ncwspspcr diJlpiop (please
include name of paper nnd dale).
memorandums. pbotoccpics of final deciSions
in unpublished cascs. and potattiaI articles for
publicatfoa. Please Iald only copies of such
matcriallhal do not have to be raumcd. FPLP
depends on YOU. its readers and mcmbas to
keep informed. Thank you fOf your
cooperation muI paI1icfpathm in IIdpiag ID set
the news out Your efforts are gready
appRC:llltCd.

Pnstm JAxoI Nnn is • 36 pqe IIlCldtIy ......, wIIicb bas
bca!. plbIistd Iicoc 1990. b is atiIaI by WIIhiqtcn slife
prisaIcr PIId Writ.Jd. Elm issue is pxtcd wi1!I summaies
ad =aIJsiI of nceal CIOUII decisiaas hID aamll!:c ClllIUDb)'
dcaliDa "willi priscmtr ri£ltta IZId wriuca &am •. piscmcr
pcrnpcctiYe. The mapzlne aftm ClUI'fes aticIa &om
IUclnlq'I

Pzrg bow-Ut

~

.mse. Also iIx1DcIed In

da!ilIa lWi:I!I

priJcoftbtod
J2nI8gfe md taiviszD &om . , u.s. mI anlJaId IJte 'MXfd.
ArlmIaI wIlscriptiua rates lie $181ar prisoacIs. Ifyau CIIl'.
d'cnII to satd SI8 IS ~ scad It least 59 aadPLN WI'U
pnnte"1he issues It SI.SO acb tar • six IDOIl1h IUbscriptioa.
New ad wmscd posIIF JIImpS ClI' cmIIasM aMklpcs may
be used .. p3)'IDCCl "
.
Fer auriltcaacallUl ~ dae )'ClIff ." I: iptfou
rate is $25. tastiturioaai or ~ (~ tillmia,
goyCmmcm agenda. mgadzatiau) IIlbscripIUln nteI lie
S60 • year. A IIalIlk copy or PLN is avaiIah!e far $1. To
sWscribc 10 PLN. ~
Pris«r LIgrzI Nftq
1-100 NW 8t1lIt SIJwt

acb isstIe

life DCWI

atidcs

B'so, pleaSe COlDplete tile below lDfol'lDatioa ad mail it to FPLP so
.tlaatthe malliug list eaa be updated:
.

NEW ADDRESS (pLEASE PRINT CLEARLY)

Name

Address

PMBUB
$aJllJ8,

WA 981'"

.See PINs Website at
IrItp: '''www.prluJnlqr:/ltftn.twg

Zip

State

IilMaU to: JPLPt P.O. Box 660-387, Chuluota, IlL 32766

Email Pl.N at
wlttMItD@pUt»r!~1It'/l

VOLUME·) O. ISSUE 2

MAR/APR 2004

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