FLORIDA PRISON LEGAL

ers ectives
11

ISS E2

ISSN# 1091-8094

u.s. SU]pll'eme Comt
State lPriooners May Challenge
Coostitmiownlity of State Parole
Procedm'es lUndeIr42U.S.C. 1983
by Bob Posey
WASHINGTON-The U. S. Supreme Court ruled 8-1 on
March 7, 2005, that state prisoners can file federal civil
rights lawsuits to challenge the constitutionality of state
parole procedures.
The case began when the two stale prisoners,
William Dotson and Rogerico Johnson, both of whom are
serving lengthy terms in Ohio prisons, filed separate
federal suits under 42 U.S.C. § 1983, the Civil Rights Act
of 1871, claiming that Ohio's state parole procedures
violate the Federal Constitution. Dotson and Johnson both
sought declaratory and injunctive relief.
The question presented to the Supreme Court was
whether stale prisoners, claiming tJtat state paro!e
procedures or decisions violate federal law or the
Constitution, may bring such actions under 42 U.S.C.
§1983, or whether they must instead seek relief
exclusively under federal habeas corpus statutes. The
Supreme Court, with only one justice dissenting, Anthony
Kennedy, held that such actions maybe brought as §1983
civil rights lawsuits.

Dotson began serving a life sentence in 1981. The
parole board denied him parole in 1995; and in 2000 a
parole officer, after· reviewing his records, determined he
would not receive another hearing for five more years. In
making that decision, the parole officer used parole
guidelines first adopted in 1998, seventeen years after
Dotson began serving his life sentence. Dotson filed suit
in the federal district court under §1983 claiming that
retroactive application of the harsher 1998 parole
guidelines to his pre-guideline case violates the Ex Posto
Facto and Due Process Clauses of the U.S. Constitution.
He sought a declaration from the federal court to that
effect, as well as a permanent injunction ordering that he
be given an "immediate parole hearing in accordance with
the statutory laws and administrative rules in plaCe when
[he] committed his crimes."
, Johnson began serving a lo-t0-30 year sentence in
1992. The parole board denied him parole in 1999, basing
its decision on the new 1998 guidelines. Johnson also
filed a §1983 lawsuit in. federal court claiming the
application of the harsher 1998 guidelines to his preguidelines case was a retroactive violation of the Ex, Post
Facto Clause of the Constitution. He also alleged that the
parole board (by having too few members present and by
denying him an adequate opportunity to speak) violated
the Due Process Clause. Johnson's §1983 complaint
sought a new parole hearing conducted Under
constitutionally proper procedures and an injunction
ordering the state to comply with due process and ex post
facto
requirements
in
the
future.

fAMJLlllS ADVOCA11!S I'IlJSCNERS

ON

I

THE
INSIDE

005

Post Conviction Rehearing Motions
7
Post Conviction COmer.... ~..................•..................................9
Notable Cases..•.........•......•.•................•...............................•..12
Parole Commission Escapes Abolisbment.
18
In The News........•...........•...•..............••...................•..•...........21
FDOC Budget Summary FY 2003-04
22

Florida Prison Legal Perspectives

.... :::

FLORIDA PRISON LEGAL PERSPECTIVES
, P.O. BOX 660-387
CHULUOTA, FLORIDA 32766
A Publication of.

FLORIDA PRISONERS' LEGAL AID ORGANIZATION, INC.
A SOl (eX3) Non-profll Organization
E~mail: filJp@l!oJ.oom

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

FPLPSTAFF
Publisher
Editor
Associate Editor
Research

Teresa Bwns Posey
Bob Posey
Oscar A. Hanson
Sheni Johnson

.ADVISORY BOARD
William Van Poyck

Susanne Manning.

Anthony Stuart

Mark Osterback

Linda Gottlieb

. David Reutt~

Florida Prisoners' Legal Aid Organization. Inc., P.O. ,Box 660387, Chuluota, Florida 32766, publishes. FLORIDA PRISON

LEGAL PERSPECTIVES (FPLP) up to six times a year. FPLP Is
a noit-profit publication focusing 00 the Florida prison and
,criminal justice systems. , FPLP provides a vehicle for ,news,
Infonnatlon, and resources· atfectina prisoners, their families,
ftiends.loved ooes. and thegenenl1 public ofFlorida. Reductioo
ofcrimC and recidivism; maintenance of family ties. civil rights,
improving .con~ltions of confinement, .advocating.skilled· court..
access for prisoners, ,and promoting accountability of prison
officials are issues FPLP is designed to address. FPLP's non·
att<!rney volunteer staff' cannot respond to requests for· legal
advice. Due to the volume of mall that Is received and staff
limitations, all correspondence cannot be responded to. but aU
mail will reeei~e Individ~ attention. Permission is granted 10
reprint material appearing in FPLP .that does nol indicate it is
copyrighted provided tbat FPLP and any indicated author are
identified in the reprint material anda copy ofthe'publication in
which the material is pubUshed is provided 'to the FPLP
publisher. This publication is not meant to be a substitUte for
legal or other-professional advice. The material in FPLP should
notbe relied upon as.$Ithllritativeand may nlll contldn sufficient·
infonnatlon ,to deal with a lega1problcm. FPLP is automatically
sent to all members ofFPLAO. InC., as a m~bership benefit '
~embership dues for FPLAO, Inc., Ilperate yca'rly and are$lofor
prisoners, $15 for family members and other private-Individuals,
$30 for attllmeys, and $60 for l18enc1es. libraries. and InstiJutions.
Faniily members or loved, ones of prisoners who are unable t~
8frord the basic membership dues may receive membership fllr
any size donatilln they can afford. Postage stamp donations are
welcome. Prisoners lin death row or eM who cannot aftbrd the '
membership dues may request a waiver of the dues, which we
will grant as resourcespcnnlt.

2

.

'.. ;.
In both cases, the Federal District Court, Northern
District of Ohio, held that the prisoners could not bring
their claims as §1983 civil rights violation lawsuits, but
must seek relief through habeas corpus (meaning.that they
must exhaust all state administrative and state-court
remedies first and be subject to the severe restrictions on
federal habeas corpus actions as enacted in the
Antiterrorism and Effective Death Penalty Act of 1996.
before seeking federal.habeas corpus relief). The district
court dismissed both cases, and Dotson and Johnson
appealed. The Sixth Circuit Court of Appeals ultimately
consolidated the two cases and heard them en banco The
appeals court reversed the lower court's decisions and
held that the actions could proceed as § 1983 lawsuits.
329 F.3d 463, 472 (6th Cir. 2003). Ohio parole officials
then petitioned the Supreme Court for certiorari review,
which was granted. '
Eighteen other states joined Ohio in urging the
Supreme Court to overturn the appeal court's decision and
hold that prisoners may not attack parole-eligibility
proceedings using the more lenient and possibly more
effective §1983 civil rights lawsuit avenue, but are
restricted to pursuing such challenges and seeking such
relief under the (more onerous) federal habeas corpus
laws.
Ohio claimed that prior decisions of the Supreme
Court, holding that a. state prisoner cannot use a §1983
action to challenge "the fact or duration of of his
confinement," but must instead seek federal habeas corpus
relief (or appropriate state relief), apply in cases like
Dotson's and Johnson's that challenge state parole
proceedings or decisions. Ohio posited that Dotson and
Johnson attack their parole-eligibility proceedings·
(Dotson) and parole-suitability proceedings (Johnson).
only because they believe that if successful it will lead to
their speedier release from prison. Thus, Ohio argued, the
prisoners' lawsuits, in effect, are a collateral attack on the
duration of their confinement, and that such claims may
only be brought \hrough habeas corpus action, not through
§1983.
The Supreme Court disagreed, with Justice
Stephen Breyer writing for the majority stating that the
"problem with Ohio's argument lies in its jump from a
true premise (that in all likelihood the prisoners hope these
actions will help bring about earlier release) to a faulty
conclusion (that habeas corpus is their sole avenue for
relief)." Breyer continued, stating, "consideration of this
Court's case law makes clear that the connection between
the constitutionality of the prisoners' parole proceeding5
and release from confinement is too tenuous here to
achieve Ohio's legal door-closing objective."
ne majority opinion ,pointed out that from
Preiser V. Rodriguez, 411 U.S. 475 (1973) to Edwards v.
Balisok, 520 U.S; 641 (1997) the Supreme Court has
developed a line of cases that provide an exception to
§1983's otherwise broad scope for actions that lie within
~_.

;..

.'. :

Florida Prison Legal Penpectives
the "core of habeas corpus" where a state prisoner
requests present or future release. Yet, §1983 remains
available for procedural challenges where success would
not necessarily result in immediate or speedier release. but
prisoners cannot use §1983 to obtain relief where.success
would necessarily demonstrate the invalidity of·
confinement or its duration.
.
The relief sought (if granted) would render invalid
the stale procedures used to deny parole eligtoility (for
Dotson) and parole suitability (for Johnson). Neither of
them seeks an injunction ordering immediate or ~er
release from prison, nor would a favorably judgJtem
necessarily imply the invalidity of their conviction or
sentences. Success for Dotson would not mean immediate
release or a shorter stay in prison, at most it would mean a
new parole eligibility review, which may speed
consideration of a new parole application, the Court
wrote. For Johnson, at most success on his claims would
mean a new parole hearing at which parole authOrities
may, in their discretion, decline to shorten his prison term.
Because neither prisoners' claim would necessarily result
in speedier release, neither lies at the core of' habeas
corpus. And concerning their claims for fulIIre relief
(mjunction) (which, if successful, will not necessarily
imply the invalidity of confinement or shorten its
duration), such claims are even more distant from that
"core." Thus, the Court held that such claims can be
brought under §1983 because they do not fall within the
implicit habeas exception.
.
The Court also rejected two other arguments by
Ohio. The state had argued that §1983 was not proper
because a favorable judgment would necessarily imply the
invalidity of the prisoners' sentences, citing Heck Y.
Humphrey, 512 U.S. 477 (1994). Ohio asserted that
parole proceedings are part of the prisoners' sentences, an
aspect of their sentences that the §1983 claims, if
successful, would invalidate.
The Court was not
persuaded. It pointed out that, in context, Heck uses the
word "sentence" to refer not to prison procedures,.but to
substantive determinations as to the length of
confinement.
Second, Ohio had argued that a favorable decision
for the prisoners would break faith with principles of
federaVstate comity by opening the door to the federal
courts without prior exhaustion of state-eourt remedies.
The Court was not persuaded by that "tactic either. The
Court pointed out that its earlier cases, Preiser through
Balisok, "placed the States' important comity
considerations in the balance, weighed them against the
competing need to vindicate federal rights without'.
exhaustion, and concluded that prisoners may bring their
~Iaims without fully exhausting state-eourt remedies so
long as their suits, if established, would not necessarily
invalidate state-imposed confinement" The Court said· it
saw no reason to move the line drawn in those cases,
"particularly since Congress has already strengthened the

lFOC1L1lS Slbliftilclg to ReeIl1l.try
Immtliatllves. in Some Stmtes

F
ro-incarcerated

aced with record numbers of people being released
from prison,. many of whom re-offend and have to be
leading to an increasing drain on budgets,
SOlDO states are focusing attention on what is being seen as
a crucial period of opportunity and risk-providing more
support to offenders when they are released from prison.
Massachusetts is the latest state to consider new
measures to reduce recidivism, with lawmakers proposuig
that all felons be supported by supervision as they make
the transition back into life outside prison.
That state joins a number of cities, and other states
from Rhode Island to Ohio, focusing more attention on the
reentry phase at a time when hundreds of thousands of
prisoners are being released from the nation's prisons each
year. Most troubling, statistics show of the more than
600,000 people released from prison yearly, two-thirds of
them.arc rearrested within three years oftheir release.
The idea has even spread to crime-tough
California.
Republican Gov. Schwarzenegger is
emphasizing education, job training and drug
rehabilitation for prisoners in that state's $6.5 billion-ayear correctional system.
It even appears that Washington is realizing that
thinp can't continue to go as they have been. President
Bush ta1kecl abom the need for reentry programs in his
2004 State of the Union address. (See: FPLP, Vol. 10,
Iss. 3, pg. 5.) In a bipartisan effort, Rep. Rob Portman (R)
of Ohio and Rep. Danny Davis (0) of Illinois will soon
reintroduce legislation that would, among other things,
establish a national resource center of best and most
effective reentry initiatives.
Although the efficacy of such programs is
controversial, prison demographics and tight state budgets
have driven some states to give them new consideration.
Experts agree that much of the "tough on crime" rhetoric
of the 19805 and 19905 is giving way-in both parties-to
a belief that transitional assistance is a cost-savings
proposition and benefits public safety.

3

Florida Prison Legal Perspectives
The Massachusetts legislation would pair each exthat they have worked so hard to build up to their current .
capacities and on which they have come to rely as a prime
prisoner with a case worker who would help develop a
plan to find work, housing, and alcohol and drug'
source of taxpayer income to fund a self-perpetuating
counseling. The mandatory supervision would last at least
industry.
Reentry initiatives that actually reduce
nine months and often up to one quarter of the exrecidivism would lead to the need for less police, court
prisoner's maximUm sentence. A judge could change its
personnel, prison guards and even prisons. and that would
duration.
disrupt budgets, employment rates 'and the status quoaccording to many who are willing to sacrifice-otherwise
Currently 40 percent of Massachusetts's prisoners
redeemable lives as long as they retain personal power. •
have no supervision at all after they are released. Ll Gov.
Kerry Healey (R), who is leading the effort, said that it
costs $43,000 to keep a person in prison, so the state could
•
save $1 million for every one percent of recidivism
Percent ofPrison Admissions with Prior
deterred. According to a 2002 study by the Massachusetts
Commitments to Florida's Prison System
Sentencing Commission, 49 percent of state prisoners.
commit a new crime within one year of their release.
47.0% . , - - - - - - - - - - - - - - - - - ,
With 2 million people behind bars and tight
budgets making it impossible for many states to keep
building prisons, "more and more communities are
46.0%
realizing it's in their best interest to shepherd this
transition so that communities can be safe," says Peggy
45.0%
Burke, a principal at the Center for Effective Public ,
Policy, a Maryland thinktank.
Experts also say there is a gradual realization that
44.0%
community-based organizations, not prisons, have the best
chance of rehabilitating prisoners. "There' has been
43.0%
recognition that prison time alone doesn't help people
change behavior in the long run," says Alex Holsinger, an
associate professor at the University· of Missouri-Kansas
42.0%
City. ,
That recognition isn't new, but· rehabilitation and
41.0%
assisting reentry fell out of favor in the 1980s when state
98-99 99-00 00-01 01.Q2 02-03 03-04
budgets were flush and "get tough" demagogues preyed
upon the public's crime fears to enact mandatory
minimum sentences, tougher punishments and resultant
expansion of the prison industrial complex and criminal
Prior commitments refer to any previous occasion
justice systems became lucrative business-for the short
run.
.
that an inmate served time in the Florida prison system. This does not include supervision, such as proSome of the renewed Republican interest in
bation. Nor does it include inmates who may have
reentry initiatives is occurring because it enables faithbeen in county jails in Florida, or in other state sysbased groups to come forward. Many such groups support
tems or in the Federal prison system.
the Republican agenda and their reward has been a push to
reinterpret the constitutional separation of church-and-'
• Some(43.2%) ofthe offenders who wereadmittedto
state clause to allow such groups to receive federal. and
the Florida stateprison system in FY2003-04had
state funding. one argument is that they should be
; beeninstateprison in Floridabefore.and thatnwnber
. allowed such funding to provide a critical servi~
. has dropped s.lightlyoverthepastfive years.
reentry support services to ex-prisoners with a religious
• 20% had beeninprisoninFloridaoncepreviously,
component
.
andalmost I0%had beenin twicepreviously. Eight
However, not all lawmakers or researchers favQr
percent had beeninprisoninFlorida fourormore
spending on reentry initiatives. There's still plenty of
timesinthepast
"tough on crime" sentiment around: it has proved to be too
• ForFY2003-04, the following types ofprison
successful as a political platform, and too lucrative as an
admissionshadnopreviousFloridaprison~ommit­
excuse to dig. deep in taxpayers' pockets, to abandon .
ment$:sexoffenders(69.0%),females(68.4%),
entirely. States. like Florida, who aren't experiencing
those ages SO andoveratadmission (49.0%) and
budget problenis. have little incentive in reducing their
drugoffenders (52.0010).
shameful recidivism rates. In fact, to do so would
negatively impact the prison/criminal justice economics

4

Florida Prison Legal Perspectives

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

Your voice in Tallahassee representing prisoners in all areas ofpdSt-convlction relief:
Appeals
3.800 Motions
3.850 Motions
State and Federal Habeas Corpus
Writs of Mandamus
Parole Hearings
Clemency

Plea Bargain Rights
Sentencing aild 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' based solely upon advertisements.
Before you decide, ask me to send you free written information about my qualifications and experience."

5

Florida Prison Legal Penpectives
Florida Parole
Parole Re\"OCations
Technical Violations \'S. New Offense Violations
The 1W\i0rity of parole fe\'ocations of Florida parolees
are for technical yiolations. Very few parolees ha\l: their
paroles fe\'oked for conuui«ing a new offense while on
parole. Under Florida Parole Commission policies. e\l:n
a minor "ioJation of a technical condition ofparole. ma)'
result in fe\"ocation of parole and a r-etum to prison. This
chan sh<m'S the parole fe\'ocations for tbe past tweh-e
)"e8rs.
ICTecllnicalVioiations .NewOffet1se

I

180 .

100 -H.-Ill-lll-n-."..-n--f}-"""""':;::----~

10 +U-III-II-U-·U--U..-U-III-II-U--1 ...-iH

o • II

I •

.u.II~L-U--"'_._

.'

.u.......- . .__......&&....&a.. . . .~

92- 9~ 94- 91- 96- 97- 98- 99- 00- 01- 02- O~
93 94 95 98 97 98 99 00 01 02 03 04

Chart \ 'alues
Fiscal Years Technical New Offense Totals
92-93
13.J
33
167
122
18
93-9.J
1~
9.J.9S
ISO
J25
2S
9S-96
129
13
142
112
96-97
103
9
97·98
6
111
lOS
109
9
118
98-99
99'()()
88
10
98
00-01
95
101
6
OJ-02
79
8
87
02-03
8J
S
86
03-o.J
87
4
91
Prepared by tile FPL·W Parole Project

Parole

j

6

Parole is a post-prison supervision program where eligible inmates have the terms and conditions ofparole set by the Florida
Parole Commission. The period ofparole cannot exceed the bal..ance of the offender's original sentence. Under parole, the offender is to be supervised in the community under specific eonditions. Parole supervision is provided by the Florida Depanment ofCorrections. Although Florida no longer has parole except for those offenders sentenced for offenses committed prior
to October· I, 1983, caseloads have increased. :These" increases
are attributed to other state cases, which have transferred supervision to Florida. On June 30. 2004, there were 2,172 parolees in Florida (669 Florida cases and 1,503 other state cases).
On June 30, 2004 there were 5,443 inmates in the Depanment
of Corrections' custody who wero;: parole eligible.

lPRJDD>lB C1ULtsTies "Wit1bl
Spinoff COlIJOlP8lJClY
s has been reported in past issues of FPLP (Volume
A
. 10, Issue I, pg, 17 and Issue 4, pg. 6), during the last
year the legislatively-created non-profit company that sells
goods made by Florida prisoners has been under scrutiny
for questionable business practices. Responding to a
December 2004 investigative report ,by the governor's
inspector general that found the way PRIDE created a.
spinoff company violated state law, in January PRIDE
annoUnced it no longer would do business with the
spinoff, Industries Training Corporation.
In PRIDE's written response to the inspector
general's report, the company admitted that its alliance
with lTC, a 6-year-old company created and run by former
PRIDE executives, may have financially compromised the
firm, PRIDE now acknowledges it may have overpaid
ITC for years.
Just how much PRIDE overpaid may never be
known. PRIDE says it doesn't plan to figure out how
much it overpaid lTC, calculating the actual costs would
be time consuming, PRIDE's response claims, and in any
event, "it is unlikely that PRIDE would be able to collect
on the over payments." PRIDE did note that based on a
new cost analys~ that ITC was paid just 5396,000 for the
final quarter of 2004 compared to the 51.S6-miUion in
average payments for the first three quarters of.last year,
PRIDE also said it has closed three businesses in
the past six months, including a money-losing citrus
processing plant, and consolidated three others.
The response blamed former PRIDE executives,
former CEO Pamela Jo Davis and former President John
F. Bruels, for withholding important financial information
from the rest of the board of directors. The board is made
up of II members, 10 of whom are appointed by the
governor. and the II III is always the secretary of the state
prison system, After his inspector r-eleased the highly
critical report in December, Gov. Jeb Bush nained five
new members to,the board to replace members whose'
terms allegedly expired.
PRIDE's seven-page response provided little
defense of the board, but said they had good intentions.
"Although the audit report was generally criticaL.it is
important to note there were no finding of any
wrongdoing by anyone associated with PRIDE," the
response said. It's curious there was no finding of
wrongdoing by individuals when the inspector general did
determined that the way PRIDE, or at least the way former
CEO Davis and President Bruets, created ITC violated
stat~ law, which mandates that only PRIDE oversee prison
labor,
~The good news is that they are accepting the
recommendations made by the inspector general and they
have agreed to take steps to rectify the situation," Bush

Florida Prison Legal Penpeetives
. .: _.. ~.

said. "You can't undo what's been done. It's not going
back to whatever you would call normal in PRIDE world."
Florida Prison Legal Perspectives has previously
reported how PRIDE, after creating ITC in 1999, was
sharing its executives and board members with the
spinotT, gave lTC at least SIO-million in interest-free
I~ with no payback plan in place, and was paying lTC
above premium 'rates for handling PRIDE's payroll,
insurance coverage and accounting. The former chief
executive, Pamela Jo Davis,. was simultaneously acting as
head of both PRIDE and lTC, she was forced to resign
from PRIDE last July, but remains as CEO oflTC. Last
year her salary was an obscene $236,000. Obscene,
considering that the Florida prisoners whose work
generates the revenue for PRIDE and funds its spinoffs
can only earn between $.20 and $.55 an hour.
. It is unclear where ITC will go from here, PRIDE
was its biggest client. PRIDE officials estimate ITC stills
owes SI2.9-million from loans, and suggested that ITC
might sell some assets to repay some of that debt. Then
again, it might not. ' The lesson to be learned seems to be
that crime does pay; if you're on the right side of the
fence. •

RJBHlBA.lR][N'G MOTIONS
Post CoImvictimn JProceedlfumgs m
the Trimll and Appellllate Co~
by Dana Meranda

A Motion for Rehearing filed at an order on a Rule
.l"\.3.850 Motion for Post Conviction Relief must be
filed within fifteen (15) days of the date of service of the
order. However, when the order is'served by mail, Rule
3.070, FIa.R.Crim.P., provides that three (3) days shall be
added to this time period. Whipple \I. State, 867 So.2d 433
(Fla. I- DCA 2004).
.
, The trial court, for good cause shown, may extend
the fift~ (15) 'day time limit. Fla.R.Crim.P. 3.050;
Nguyen v. State, 868 So.2d 666,667 (Fla. I- DCA 2004).
Filing a Notice of Appeal from the denial of a
Motion for Post Conviction Relief effectively abandons a
Motion for Rehearing. Moore \I. State, 789 So.2d 5S I
(Fla. Slh DCA 2001).
A Motion for Rehearing which is not timely filed
does not suspend rendition of the order denying the post
conviction motion, and therefore does not toll (stay) the
time for filing a Notice of Appeal. Jones v. State, 838
So.2d 659 (Fla. Slh DCA 2003).
Rule 3.850(g) does. not allow the state to file a
Motion for Rehearing. King v. State, 870 So.2d 69, 70
, (Fla. 2d DCA 2003). '
,
And, the Florida Supreme Court recently adopted
an amendment to Rule 3.800, Fla.R.Crim.P. In Re
Amendments to Florida Rules of Criminal Procedure, 29

~"'~"$~;.~"

..

Fla.L.Week1y S568, - So.2d-, (Fla. Oct. 7, 2004),
(effective January 1,2005). The amendment authoriza a
defendant to file a Motion for "Rehearing directed· at an
order denying a Rule 3.800 Motion for Correction,
Reduction and Modification of Sentence (another type of
post conviction motion), thereby tolling the time to file a
Notice of Appeal in that type proceeding also.
In the District Courts of Appeal. Rule 9.330,
Fla.R.App.P., provideS for Motions for Rehearing,
Clarification, and Certification, and Rule 9.331 sets forth
. the procedures for Hearings and Rehearings En Bane. All
final appellate decisions are subject to Rehearing or
Clarification within fifteen (IS) days of an appeal court
decision. Motions for Certification serve a different
purpose, although they'are governed by the same rules.
A Motion for Rehearing is used to bring to the
attention of the appeal court a matter that was overlooked
or misapprehended. Under the present version of the rule,
an appellant may argue a point decided by the court. 780
So.2d 834, 894 (Fla. Aug. 29,2002), (effective January 1,
2003). However, it is still improper to use a Motion for
Rehearing for the purpose of expressing disagreement
with the court. And, generally, raising a new issue for the
first time in a Motion for Rehearing is improper.
Florida Rule of Appellate Procedure 9.330(a), as
amended, 827 So.2d 888. 889 (Fla. Aug. 29, 2003),
(effective January I, 2004), further provides that when a
decision is entered without an opinion, and a party
believes that a written opinion would provide a legitimate
basis for 'state Supreme Court review, the motion may
include a reqQest. that the appellate court issue a written,
opinion. Parker v. State. 845 So.2d 242, 243 (Fla. S6
DCA 2003). However, nothing in the amendment to Rule
9.330(a) mandates that the appeal court issue a written
opiilion upon request of a party. That rule does not create
an automatic right for a party to obtain a written opinion
when requested.
R.J. Reynolds Tobacco Co., 29
Fla.L.Weekly 8462, -So.2d-Fla. Sept 2, 2004).
Asking the appeal court to clarify a Per Curiam
Affirmed (PCA) decision summarily affinning a trial
court's decision is tantamount to asking the appeal court
to write an opinion in the case. See: Phillip J. Padovano,
Florida Appellate Practice, Sec. 19.3 (2005 ed.).
Intradistrict conflicts are now reserved exclusively
by the Rehearing En Bane procedure, and to resolve
matters of exceptional importance.
Federal courts have identified two types of cases
of exceptional importance appropriate for en bane review:
I) Cases that may affect a large number of people, and 2)
cases that interpret fundamental legal or constitutional
rights. While Florida courts have not explicitly defined
"exceptional circumstances," they seem to follow the
Federal approach., Kinder v. State, 779 So.2d 512, SI5
(Fla. 2d DCA 2000).

7

Florida Prison Legal Penpeetives
A Motion for Rehearing En Bane must be filed
"in conjunction" with a Rule 9.330- Motion for Rehearing
in the appeal court.
PeA decisions are common among the Florida
District Courts of Appeal. However, a PCA is not always
the end ofthe stat.; appeal process as this article discusses.
In appropriate situations, there are alternatives that can be
effective, if used wisely and sparingly. For example:

1. FiliDg a Motion for Rehearing coupled with a
MotiOD for' ReheariDg ED BaDCo See: Hoechst
Celanese Corp. v. Fry, 7S3· So.2d 626, 627 (Fla.
Sill DCA 2000) (explaining only that the per
curiam affirmance was "improvident in light of
established case authority and the facts of the
case").
F~Dg a Motion for C.larifieation or a MOtiOD
for Written OpinIOD. In filing a Motion for
Clarification or for a Written Opinion, one should,
if possible, obtain and review the PCA Committee
report.
The Judicial Management Council
suggested the types of cases that may warrant a
written opinion. These include cases in which:
• The decision conflicts with another
district's decision;
• An apparent conflict with another district
may be hannonized or distinguished;
• There may be a basis for Supreme Court
.review;
• The case presents a new legal rule;
• Existing law is modified by the decision;
• The decision
applies
novel
or
significantly different facts to an existing
rule of law;
• The decision uses a generally overlooked
legal rule;
• The issue is pending before the court jn
other caSes;
• The issue decided may arise in .future
cases;
• The constitutional or statutory issue is one
of first impression;
.
• Previous case law was "overruled by
statute, rule or an intervening decision of
a higher court"; or
• There is a written dissent identifying an
issue that' may be a basis for state
Supreme Court review.
Appellants should consider all of those factors
when filing a Motion for Clarification or for a
Written Opinion.
See: Devlin v.State, 766 So.2d 490 (Fla. Sill DCA 2000) .
(finding that counsel made a "good argument" for a.
written opinion and granting
Motion for Rehearing and
for Clarification ofthe PCA).

2.

8

3. Asking the Court of Appeal to Certify an Issue
to the Florida Supreme Court. A Motion for
Certification should be approached much like the
Motion. for Rehearing En Bane. State v. Grech
Corp., 816 So.2d 648, 655-56 (Fla. 111 I;>CA
2001). Occasionally, such motions are successful.
Beverly Enterprises-Florida, Inc. v. Knowles, 763
So.2d 1285 (Fla. 4d! DCA 2000); Watson v. State,
763 So.2d 1143 (Fla. 4111 DCA 2000); Perry v.
State, 29 Fla.L.Weekly 02624, -So.2d-, (Fla.
511l DCA 11/19/04).
4. AppealiDg a .PeA DIreetIy to the U.S. Supreme
Court. Despite the fact review of a PeA by the
Florida Supreme Court is not available, an
appellant can bypass the Florida Supreme Court
and seek review' of a peA directly in the U.S.
Supreme Court. The Florida Star v. B.J.F., 530
So.2d 286, 288 n. 3 (Fla. 1988); Hobbie v.
Unemployment App. Comm. ofFla., 480 U.S; 136
(1987); Florida v. Rodriguez, 469 U.S. I, 5
(1984); Banks v. State, 389 U.S. 413 (1967)
(similarly situated). The Appellant, however, in
such case must be prepared to prove the case
involves an important issue of federal or
constitutional law worthy of review by the U.S.
Supreme Court.

5. Filing aD Appeal with the Florida Supreme
Court. The Florida Supreme .Court has appeal
jurisdiction under Art. V, Sec. 3(bXl), Fla.
Constitution, even if the decision of the district
court of appeal merely affirms an order of the trial
court declaring a state statute unconstitutional.
State v. Cohen, 568 So.2d 49 (Fla. 1990). See
also: Phillip J. Padovano, Florida Appellate
Practice. Sec. 3.4 .n. 3 (2OOSed). The term
"expressly~ is not contained. in Art. V., Sec.
3(bXl) as it is in other constitutional provisions
adopted in the 1980 revision. Cf. Art. V., Sec.
3(bX3), Fla. Constitution.
Although a PCA maybe an insurmountable
obstacle in the majority of cases, in appropriate cases there
are avenues available to the persistent appellant
As a practical matter, a concise and detailed
Motion for Rehearing will stand the better chance of
success, as opposed to a lengthy motion written to reargue
matters already addressed in the appellate briefs. •

- -_ _.IiIli'7_ _

.eilii*l!I~----~

Florida Prison Legal PerspeetiyeS

'i;'·'

.

'

,'!.;

POST CONVICTION
CORNER,

by Loren Rhoton, Esq.

There's good news for some people with convictions out of Broward County. Recent
case law from the Fourth District Court of Appeals has overturned several convictions which
came about as the. result of tainted confessions.' It seems that the BrowardCounty Sheriff's
Office (BCSO). was reading defective Miranda warnings to suspects. The defective warirlngs
failed to advise suspects that"they had the opportunity to have an: attorney present during
questioning. As a result ofthe defective Miranda warnings; several cases have now been
overturned. See Roberts v. State, 874 So.2d 1255 (Fla. 4th DCA 2004); West v. State, 876 So.2d
614 (Fla. 4th DCA; 2004); and, Franklin v. State, 876 So:2d 607 (Fla. 4th DCA, 2004).
In Roberts v. State, 874 So.2d'1255 (Fla. 4th DCA 2004), the defendant, Gorman Roberts"
was convicted of manslaughter. Mr. Roberts gave a post-arrest s~tement to the Broward County
Sheriff's Office. The Miranda Warning which was read
toMr, Roberts waS as follows:
,
"BEFORE I ASK YOU ANY QUESTIONS, I WANT TO ADVISE YOU
OF YOUR CONSTITUTIONAL RIGHTS.
"1. You have the right to remain silent.
"~.

Anything you say can be used against you in a court of law.

"3. You have the right to talk with a lawyer and have a lawyer present
before Questioning.
"4. Ifyou cannot afford a lawyer, one will be appointed to represent you before
any questioning ifyou wish." hL emphasis added.
,

I

Roberts argued that the Miranda warnin~ recited by the BCSO·was defective in that it
failed to advise him that he was entitled to have an attorney present during questioning as well as
before questioning. Id. The Roberts Court noted that Florida Courts have consistently
interpreted Miranda as requiring notification that a person in custo~y has the right to have
counsel present not only before interrogation but during interrogation as well. See Ramirez v.
State, 739 So.2d 568 (Fla. 1999); Holland v. State, 813 So.2d 1007 (Fla. 4th DCA 2002); Sann v.
State, 690 SO.2d 581 (Fla. 1997); T.S.D. v. State, 741 So~2d 1142 (Fla. 3rd DCA 1999);
Statewright v. State, 278 So.2d 652 (Fla. 4th DCA 1973); James v. State, 223 So.2d 52 (Fla. 4th
DCA 1969). And, federal courts have recognized that advisement of the right to counsel during
questioning is a vital part ofthe Miranda proced~ safeguards. See U.S. v. Noti,731 F.2d 610
(9th Cir. 1984); U.S. v. Anthon. 648 F.2d 669 (10th Cir. 1981); Atwell v. U.S., 398 F.2d 507 (5 th
Cir. 1968); Groshart v. U.S., 392 F.2d 172 (9th Cir.l968); and, Windsorv.U.S., 398 F.2d 530 (5 th
Cir. 1968).

9

Florida Prison Legal Penpectives
The Roberts Court found that the Miranda warnings given to Roberts were inadequate
because they failed to inform him that he had a right to have.counsel present during
iilterrogation. Roberts at 1228. It was further held that "[t]his inadequacy militated against a
finding that the defendant knowingly and inteJligently waived his Miranda rights." Id. The court
further noted that no amount ofcircumstantial evidence that a defendant may have been aware of
his right to a lawyer will suffice to stand in place of Miranda warnings. "Only through such a
~aming is ~ere ascertainable assurance that the ~used was aware of this right." Roberts at
1229, quoting Miranda y. Arizona, 348 U.S. 436 (1966). Consequently, it was held that Roberts'
. statement to the BCSO should have been suppressed; Mr. RobertS' Judgement and Sentence was
ultimately vacated as a result ofthe faulty Miranda warnings.
The above cases may significantly affect cases originating in Broward County where a
confession/statement was given after Miranda rights were read to a suspect. If the case is. still
within the two year period of limitations for filing a 3.850 motion, the issue could be raised as
one of ineffective assistance ofcounsel, involuntary plea, and/or as a Miranda issue. Ifthe
appellate attorney never addressed the issue on d~t appeal, ~e issue could be raised as one of
ineffective assistance ofappellate counsel in a petition for writ·ofhabeas corpus/petition for
belated appeal to the Fourth District Court ofAppeal of Florida. Ot, if over two years have
'passed since the case was affirmed on direct appeal,. the issue could be raised in a 3.8S0(b)(2)
motion for postconviction relief alleging that the fundamental constitutional right asserted was
not.established within the applicable period of limitations and that said right applies
retroactively. Each case is different,'and, the specific facts ofeach case will dictate what
procedural vehicle should be used.
The Florida Supreme Court and the United States Supreme Court have refused to review
Roberts v. State, 874 So.2d 1255 (Fla. 4th 'DCA 2004), West v. State, 876So.2d 614 (Fla. 4th
DCA, 2004) and, Franklin y. State, 876 So.2d 607 (Fla. 411I DCA, 2004). As such, the case law
is good and should be argued in cases that qualify. As Ihave advised with other new and
beneficial case law in the past,.it is reco~end that persons with cases that qualify for relief act
immediately. Otherwise the applicable periods of limitations will lapse and no relief will be
available. Rapid action also will serve to have the issue addressed before-the circuit courts start
carving out exceptions to the case law which will ultimately limit the amount and type ofrelief
available.

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 postt:or'Wictioniappellate
area ofthe law, both at the State and Federal Level. He has assisted
hundreds ofincarceratedpersons with their cases and has numerous
written appellate opinions.. •

"'BllplillDee'"

.....c

II. . . . .

WIllI 01 CALL

WCYMOIGAN
ST. PIIUS'UIG TIMES .

" _ L COUIGi! AVENUE
. TALLAHAUII.'UUOl
1ollOO21407213

10

Florida 'Prison Legal Perspectives

"

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RHOTON & HAYMAN, P.A.

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1•

Florida Prison Legal Perspectives

The following are summaries ofrecent state and/ederal cases that may be useful to or have a Significant impact on Florida prisoners.
Readers should always read the/ull opinion as published in the Florida Law Weelc/y (Fla. L. Weekly); Florida Law Weelc/y Federal
(Flo. L. Weekly Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Supplement 2d (F.Supp. 2d). since these summaries are/or general information only

U.S. COURT OF APPEAL
v.
Chatman,
18
Fla.L.Weekly Fed. CI08 (111h Cir.

Peoples

12120/04)

Johnny Peoples, a Georgia
state prisoner, appealed the d~ial of
his petition for writ of habeas corpus '
to the II Ih Circuit Court of Appeals.
In the district court his petition was
brought before it and treated as
seeking relief under 28 U.S.C. 2241.
The 11III Circuit issued a
Certificate of Appealability in
Peoples' case regarding whether the
district court erred in treating the
petition as one seeking relief under
28 U.S.C. 2241 and in treating it as
such, whether it was error to dismiss
the petition as time barred.
As to the first issue the II Lb
Circuit cited to a prior _case,
Medberry v. Crosby, where it held
that there was but one habeas corpus
remedy for those imprisoned
pursuant to a state court judgment,
and that it was governed by both
section 2241 and section 2254.
Peoples' habeas corpus
remedy was authorized by section
2241, but also subject to section
2254 and aU of its accompanying
restrictions. Therefore, the petition
was properly treated by, as brought
to, the district court as seeking relief
under section 2241, although it was
governed by and subject to ~e rules
and restrictions found in section
2254.
As to the second issue,
Peoples had argued that the one-year '
period of limitations, found in
section 2244(g), for bringing a
petition does not apply' to one
brought under section 2241.

12

Regarding the second issue,
the II Lb Circuit reiterated, as in the
first issue, the Medberry case where
it held that there is but one means of
bringing a post conviction petition
for those imprisoned under state
court judgment, that is the writ of
habeas corpus, governed by both
sections 224I and 2254. Section
2244 statute of limitations applies to
petitions governed by section 2254.
Therefore, being that Peoples'
petition was filed over the one-year
period and section 2254's restrictions
apply to his petition brought and
treated as seeking relief under 2241,
the petition was properly found to be
time barred when filed.
Nix v. Secretary for the Dept. of
Corrections
of Florida,
18

Fla.L.Weekly Fed. Cll5 (lllh Cir.
12117104).
Tony Lee Nix, a Florida
prisoner, appealed the dismissal of
his section 2254 petition for writ of
habeas corpus as time-barred under
section 2244(d)(I)(A). The IIIh Cir.
issued Nix a Certificate of
Appealability (COA) regarding two
issues: 1) whether the district court
correctly concluded that Nix's
convictions became final, for
limitations purposes, only after the
expiration of the ninety-days during
which Nix could have sought
certiorari review in the United States
Supreme Court, even though
appellees argues that the ninety-day
window did not apply because Nix
raised no federal issue on direct
appeal (See:Bond v. Moore); and, 2)
if the district court correctly applied
the Bond rule, did the district court
err in concluding that the limitations

period expired before Nix .filed his
section 2254 petition.
.
Section
2244(d)(IXA)
provides that the one-year limitations
period in which a state prisoner has
to file a writ for habeas corpus
begins to run from "the date on
which the judgment became' final by
the conclusion of direct review or the
expiration of the time for seeking
such review." Supreme Court Rule

13.1 provides that a petition for a
writ of certiorari is timely when filed
within ninety days after entry of
judgment or denial of discretionary
review by the state court of last
~ort.

Although the 141h Circuit
found that the Supreme Court may
review a final judgment rendered by
the highest state court by writ of
certiorari when a federal issue is
involved, see 28 U.S.C. section 1257,
section '2244(d)(IXA) does not
require an assertion of a federal
claim on direct review in order to 00
availed of. the one-year limitations
period.
Regarding the second issue,
Nix argued that the district court
erred in its conclusion of when the
one-year limitations period began.
He maintained that his post
conviction .reviews were not final
until the time in which he could have
filed a motion for rehearing of the
denial of his motion to correct illegal
sentence had expired.
The one-year limitations
period of section 2244(dXIXA) is
tolled while an "application for State
post-c:onvietion or other collateraJ
review" ,is pending. See 28 U.S.C.
section 2244(d)(2) and Coates v.
Byrd, 211 F.3d 1225, 1226 (11 11a Cir.
2000). Because a motion for state

I

Florida Prison Legal Perspectives
court rehearing falls within the

~ter

category of "State post-conviction or
other collateral review," it was error
for the district court to have failed to
toll the statute of limitations during
the time Nix appealed the denial of
his motion to correct sentence. Thus,
the 11 1b Circuit found that it was
:efror to have dismissed the petition
as untimely and reversed Nix's case,

period.

~gnfur~w~~~tofthe

petition.

v.
Donald,
18
FIa.L.Weekly Fed. CI69 (11* Cir.
1/18/05)
On appeal to the II* Circuit
Court in this case, a district court
magistrat., judge addressed nine of
the petitioner's claims of an amended
habeas corpus petition and issued a
report and recommendation d~ying
relief on all counts. The petitioner
objected to the ~ as to eight of
the claims. The district court granted
the petition, but only addressed the
merits of two issues. Subsequ~tly,
it
granted
a
Certificate of
Appealability on all successfully
preserved issues (eight), despite
having addressed only two.
The llltl Circuit, having
issued a Certificate of Appealability
in the matter, cited its prior decision
in Clishy v. Jones wh~ it expressed
its deep concern over the piecemeal
litigation of federal habeas petitions
filed by state petitioners, which it
stated was ex~plified by the
district's failure to ~olve all claims
as was evidenced in this case.
Subsequ~tly,
the
11 tb
Circuit vacated the· district court's
judgment without p~udice, vacated
the Certificate of Appealability, and
remanded the case with instructions
for the district court to rule on the
merits of all eight claims. After
ruling on the merits, the district court
shall determine on which, if any, of
the petitioner's claims to' grant a
Certificate of Appealability. And
being the issues w~ already
briefed and p~ted, .the 11
Circun or~ the district court to
Callahan

fu1Il

its ruling within a thirty-day

FLORIDA SUPREME COURT
State v. Matthews, 30 Fla.L.Weekly
S1 (Fla. 12/23/04)
On
appeal
in
Gary
Matthews' case, the Fourth District
Court of Appeal opined that c~t
pursuant to Tripp v. State applies to
habitual
offender
s~tences.
Contrary to that opinion, the Second
District decided in Dunean v. State,
686 So.2d 701 (Fla. 2d DCA 1996).
that the Tripp credit does not apply
to habitual sentences. Due to the
conflict, the issue was brought befo~
the Florida Sup~e Court for
~view.

In' Tripp, the def~dant was
convicted of two separate offenses.
He was sentenced to prison on one to
be followed by probation on the
other; however, both off~ w~
sentenced under the sentencing
guidelines through the use of a single
sco~heet.
Consequ~t1y,
both
offenses .must continue to be treated
in ~Iation to each other, ev~ after a
portion (the probation) of the
sentence under that single guidelines'
sco~heet had been violated. Thus,
it was held that Tripp should be
credited the time served' on the initial
incarcerative portion of the imposed
sentence for the violation' of
probation.
The Florida Sup~e Court's
primary focus of concern in Tripp
was the interrelatedness of 'the
sentences computed on a single
sco~heet and how the incarcerative
period, even after violation of
probation, could not exceed the range
contemplated by the guidelines at the
original sentencing.
In regards to Matthews'
case, • in . similarity, Duncan was
convicted of different multiple
offunses. He was sentenced as a
habitual offender on some of those
offenses and under the guidelines on
the others.
The Second District
~oned in Duncon that since

guidelines s~tencing does not apply
to one who has been habituaJized,
time served pursuant to Ii guidelines
sentence would not apply as credn to
a habitual s~tence. In other words,
because a guidelines scoresheet does
not apply to habitual s~tences, the
intemlation as found in Tripp would
not exist.
Th~fore, due· to its finding,
the Florida Sup~e Court held that
Tripp credit does not apply to
habitual
off~der
sentences,
upholding the Second District's
reasoning and decision in Duncan.
The Fourth District's. decision in
Matthews was quashed.
.
\

Exposito v. State, 30 FIa.L.Weekly
S9 (Fla. 12/23/04)
The issue involved in this
case was whether section 924.07,
Florida Statutes (2004), authorizes a
state appeal from a post-trial order
reducing a charge pursuant to Florida
Rule ofCriminal Proced~ 3.620.
Alex Esposito had argued in
the trial court that he could not be
legally sentenced for his conviction
in light of an unconstitutional statute.
The ~lief he sought was a new trial
or a reduction of his charged
conviction under role 3.620. Bound
by the case law at the time, the trial
court reduced his conviction to a
lesser-included offense. The State
the
order
reducing
appealed
Exposito's conviction.
On appea~ Exposito argued
in ~liance on State v. Riehms, 792
So.2d 570, 571 (Fla. 4t11 DCA 2001),
that the Third District was' without
jurisdiction to hear the State's appeal
because,' section 924.07 does not
authorize a stale appeal from a posttrial order reducing a charge to its
lesser-included off~ pursuant to
rule 3.620.
The Third District declined
to follow Richars, and ~lied instead
on its own decision in Stale v.
Hankerson.
There, n held that
section 924.07 authorized a state
appeal from a pretrial order ~ucing
a charge.
It reasoned that
analytically, an order reducing a

13

Florida Prison Legal Perspectives
charge set forth in an infonnation or'
indictment' to a lesser-included
charge is, despite its label, an order
dismissing the ,charge in, the
information. In itS decision, the
Third District pointed to section
924.07)(1) and (a) which provides,
"(1) The state may appeal from: (a)
An order dismissing an indictment or
information or any count' therepf or
dismissing an affidavit charging the
commission of a criminal offense.....
It further certified conflict with the
Fourth District's decision in Richars
and reinstated Exposito's original_
charge and conviction.
'
Upon granting review due to
the conflict, the Florida Supreme
Court looked to the,· statutory
language of section 924.07, its plain
ordinary meaning, and the Third
District's reasoning of the deciSion as
held in Hankerson. In regards to the
reliance of the Hankerson decision,
the. Florida Supreme Court found that
the Third District's decision in
Exposito was misplaced because of a
difference in the procedural- poSture
being
involved."
Hankerson
concerned a pretrial motion to·
reduce the charge under Rule
3.190(c)(4). That rule provides the
, sole authority for a State appeal in
such a pretrial procedure. Also
under rule 3.190(c)(4), it provides
authority for motions to dismiss, not
motions to reduce.
Thus,
,Hankerson's labeling of his motion
as one to reduce rather than to
dismiss would not control the
appealability of the pretrial order
under section 924.07(1)(a):
Exposito's case regarded a
post-trial motion filed for a
reduction of the charge and was
granted by the trial court, which
reduced, not dismissed, the charge
under Rule 3.620.
The Florida Supreme Court,
in light of it's finding, concluded that
section 927.07(1) doeS not authorize
a State appeal of a trial court order
redUcing a charge under Rule 3.620.
It further quashed the Third District's
decision in Exposito to the extent it
was inconsistent with the found

14

opinion, and approved the Fourth
District's decision in Richars.

Daniels asserted in his
petition that, he sought the
enlargement of time. in accordance
Milks v. State, 30 Fla.L.Weekly SSS
with Florida Rule of Criminal
(Fla. 2/3/05)
Procedure 3.050. In the motion, to
In this case the Florida
enlarge time the First Di~trict"toWid
Supreme Court has determined. that
that Daniels stated good cause for the
Florida's Sexual Predators Act,
requested extended time: Danift.l's
section 775.21, Florida Statutes
needs to schedule time in the prils;,
library and to obtain the assistance
(2003), does not violate procedural
due process or separation of powers. . of an inmate law clerk. Thus, the
First District opined that the
It therefore reversed the
decision of the Third District in, extension of time motion should
Espindola v. State, where that
have been granted and the motion for
appellate court opined - the Act
rehearing would have therefore
uJ:lconstitutional on procedural-duepostponed rendition of the order,
process grounds.
, resulting in a timely notice of appeal
being filed.
',
The Florida Supreme Court
Daniel's petition for belated
declined to consider substantive due
process and equal protection
appeal of the' lower 9OW1's order
challenges to the Act, which were . denying his post conviction relief
briefed by the parties in this case but
motion was granted and the First
not addressed by the Second District
DiStrict instructed the lower court,
in Milks v. State or the Third District
upon issuance of' the mandate and
in'Espindola.
receiving a copy of the opinion, .to
treat the opinion as a timely notice of
appeal.

DISTRICT
APPEAL

COURTS

OF

Daniels v. State, 30 FIa.L.Weekly
D62 (12/23/04)
George M. . Daniels' case
presented a very, informative issue
regarding: the filing of an
enlargement of time in the lower
court to file a motion for rehearing
on the denial of a motion for postconviction relief.
Within the time period to file
a rehearing" Daniels filed a motion to
enlarge .the time to file for a
rehearing. Before' receiving a reply
on his enlargement of time request,
Daniels filed his motion for
rehearitlg. Almost three months after
filing his motion for rehearing, the
trial court denied beth the
enlargement of time and the motion
for rehearing on the same' day.
.Daniels appealed within 30 days but
Subsequently,
it was dismissed.
Daniels filed a Petition seeking a
Belated Appeal from the order,
which denied his Rule 3.850 motion.

Beaver Y. Clerk of Court, Osceola
County. Florida, 30 Fla.L.Weekly
D124 (Sib DCA 12113/04)
.
This case is reminder of the
seriousness that should be taken
when one files prisoner ,pro - se
motions.
Steven Earl Beaver has filed
26 different actions in the Fifth
District Court. of Appeals, including
eight civil appeals or petitions, eight
mandamus petitions, and eight
. appeals' of petitions related to his
arson conviction. This case was his
271b action before the Fifth District.
Beaver had apparently been barred'in
the lower courts because the petition
for' writ of mandamus he filed related
to two' cases where orders were
issued to that effect.
Besides
Beaver
being
ordered by the Fifth District to be
prohibited from filing any new pro-se
appeals,
pleadings,
motions,
petitions, or other papers or any
proceeding pertaining to' any case
within the Ninth Judicial Circuit
Court, the' Fifth District Clerk was
I

Florida Prison Legal Perspectives
directed not to accept any further pro·
se filings from Beaver.
In addition to the Fifth
District denying Beaver's mandamus
petition it found that his petition was
frivolous and without merit and it
observed that th~ Department of
. Corrections, pursuant to sections
':944.279(1) and 944.28(2)(a), Florida
Statutes (2004), has the authority to
forfeit Beaver's gain time and
impose other appropriate disciplinary
sanctions. Accordingly, the Fifth
District directed its clerk, pursuant to
section 944.279, to forward a
certified copy of the opinion it issued
in Beaver's case to the appropriate
institution
or
facility
for
consideration of disciplinary action
against Beaver.

The assess of such costs has
been found to be constitutional by
the Florida Supreme Court in likonic
v. City of Ft. Lauderdale, 70S So.2d
1371 (Fla. 1998). It was fi,lrther
observed in Rkonic that an order
imposing incarceration charges' is
enforced in the same manner as a
judgment in a civil action, and
therefore, the lien created upon the
imposition of the per diem charge
has the same effect as the lien
created by the entry of a civil
judgment
Due to its findings and
statutorial mandation it cited,· the
Fifth District affimied the lower
court's imposition .of cast for
McMurry's incarceration.

Cason v. Crosby, 30 Fla.L.Weekly
0159 (I A DCA In/OS)
A circuit court had a $130.00
lien placed on David K. Cason's
·inmate trust account of the filing fee
for a mandamus petition that was filed
challenging a disciplinary action by
the
Florida
Department. of
Corrections which resulted in the
loss of gain time.
On review, the First District
Court of Appeal cited section 57.085,
Florida Statutes that was enacted in
McMurry v. State, 30 Fla.L.Weekly
1996.
It explained, the statute
D128 (Sib DCA 12/30/04)
provides that a lien may be placed on
On appeal to the Fifth
a prisoner's trust account until the
District Court of Appeal, William
fee is paid in full. However, the
John McMurry contended -that the
statute
specifically
exempts
"collateral (:riminal .proceedings"
lower court was without authority to
assess cost of his incarceration.
from its provisions. .
In . contrary to Curry's
A challenge regarding the
. contentions, section 960.293(2)(b),
loss of gain time is a "collateral
Florida Statutes (2003), provides:
criminal proceeding" and so, section
(2) Upon conviction, a convicted
57.085 does not apply. Although
offender is liable to the state and its
section 57.081 would apply, and
local subdivisions for damages and
does have a mechanism for' future
losses for incarceration costs and . payment of a filing fee for court
other correctional costs. (b) If the
services, (subsection (3) of section
conViction is for an offense other
57.081 states if an indigent person
than a capital or life felony, a . prevails, "costs shall be taxed in his
liquidated damage amount of S50 per
or her favor and, when collected,
day of the convicted offender's
shall be applied to pay costs which
sentence shall be assessed against the'
otherwise .would have been required
convicted offender and in favor of
and which have not been paid."), it
the state or its local subdivisions.
does not have a provision for a lien
to be placed on a prisoner's account.

[Note: Would a· question of an: ex
post facto violation be in. order when
the court activates the provisions
(forfeiture of gain' time and other
disciplinary sanctions by D.O.C.) of
the statutes involved where one's
pending appeal, pleading, motion,
petition, or etc., that the court
decided was frivolous, was filed in
the court prior to the effective date of
those statutes?]

On rebuttal, the respondent
asserted that section 28.241 requires
the circuit court clerk to coJlect an
appellate filing fee, thus authorizing
the clerk to.· institute payment when
appellant has the ability to pay.
The First District found that
Crosby's assertion was contrary to
that statute's provisions. Section
28.241(2) provides that a clerk shall
defer payment of the ~ling fees if a
party is determined indigent. It does
not have any provisions that would
authorize the imposition ofa lien.
As a result, the First District
decided that there is no statutory
authority for the imposition of the'
lien placed on Cason's prison trust
account. As found in GejJken v..
Strickler, the Florida Supreme Court
emphasized the fact that collateral
criminal proceedings are exempted
even from the partial payment
provisions of section 57.08S. Thus,
persons meeting theindigency
requirements of section 57.081
.should be able to proceed with their
cases without the· payment of any
filing fee.
The circuit court's order of
indigency, to the extent that it
imposed a lien on Cason's inmate
trust account, was vacated.
Akers v. State,. 30 Fla.L.Weekly
0239 (5 th DCA 1/21/0S)
.
The issue that was focused
on . in . this case regarded the
mandatory provision for the state to
serVe a timely written notice of its
intent to seek a habitual felony
o~er sentence.
On appea~ the Fifth District
Court of Appeal noted the statutory
provision and opined that where it
required a service of the notice
before sentencing generally applies
to a conviction after trial. In order to
impose a habitual sentence following
a plea, however, the defendant must
be served . with the notice a sufficient
time prior to the plea, and the trial
court must confirm that the
defendant is personally aware of the
consequences of· such a sentence
when the plea is actually entered.

15

Florida Prison Legal Perspectives
It does not matter either if a
defendant was,told in open court that
the state could seek a habitual
sentence. because it does not serve
the defendant, as required, with a
written notice of what the state
actually intends t9 do.
As found in Pitts v. Stale,
despite the fact that Pitts' bad actual
notice (verbal) of the state's intention
prior to the plea, the Fifth District, as
in this case, reversed the sentence
and held that the failure to provide a
defendant with written notice prior to
entry of his plea required reversal of
the
habitual
felony
offender
sentence..

W:ard v. Slale, 30 Fla.L.Weekly
0226 (1" DCA 1119/05)
This case on appeal has
indicated when the Department of
Corrections fails to change a
prisoner's sentence after the courts
have complied in changing the
sentence. "the proper avenue of
recourse would appear to be for the
(prisoner] to pursue the institutional
grievance process.tt
Delgado v. Stale, 30 Fla.L. Weekly
0246 (Sill DCA 1121105)
The Fifth District Court of
Appeals stressed in this case the
extreme importance that a trial court
.is absolutely required to conduct a
Richardson hearing before imposing
any sanction for a discovery
violation, let alone excluding a
witness.
Under Richardson v. State,
246 So.2d 771 (Fla. 1971), the
Florida Supreme Court explicitly.
held that if there is a discovery
violation, the trial judge must first
decide whether the violation
prevented the aggrieved party from
properly preparing for trial. If the
court so finds, it must then fashion
the appropriate sanction to be
invoked.
In this case, the appellate
court opined that the trial court's
exclusion of a defense witness was
beyond harmless, because the
witness would have supported the
16

defendant's position that someone
else committed the crime charged.
For the trial court's failure to conduct '
a Rlchordson hearing, it could not
make the required findings, and
reversal was required.

Salazar v. State, 30 Fla.L.Weekly
D271 (3d DCA II26/0S)
The Third Oistrict Court of
Appeals in this case pointed out the
proper procedure for seeking credit
of time served in jail after being
sentenced to the Department of
. Corrections (DOC).
In order to be awarded postsentencing jail credits, jail time
served after imposition of a prison
sentence but prior to being received
by DOC, the individual must exhaust
his or her available remediJ'S through
DOC's grievance-procedures. After
exhausting those remedies and the
individual believes that DOC's ruling
was incorrect, a petition for writ of
mandamus may be filed directed to
the DOC. Lucio v. Slale, 673 So.2d
19S (Fla. 3d DCA 1996) and Barber
v. Slale, 661 So.2d 35S, 3S6 (Fla. 3d
DCA 1995).
Also, as a reminder, the
venue for filing such a petition is in
the Circuit Court for the Second
Judicial Circuit, in Tallahassee, Leon
County, Florida.
Slambaulh v. Slale, 30 Fla.L.Weekly
0278 (4 DCA 1126/05)
,
In Kimberly Stambaugh's
case the issue was that a probationary
period under Chapter 948, Florida
Statutes (2002), is not tolled when an
affidavit of violation of probation is
filed without the issuance of an arrest
warrant.
The appellate court cited to
Clark v. Slale where it previously
held that the appropriate steps to
revoke or modify one's probation
requires the issuance of an arrest
warrant base upon an affidavit
alleging a violation of probation.
Floyd v. Slale, 30 Fla.L.Weekly
D316 (1" DCA 2/2/0S)

The basic issue involved in
this case was where an improper
motion for rehearing is filed on the
denial of a postconviction motion in
the lower court; time is not tolled in
seeking an appeal of that ~
order.
. : J _~_ ~."~;
In this particular case a
motion for rehearing was untimely
filed. On seeking appellate
the First District Court of Appeals
reiterated what it held in Childs v.
Slale, in that an untimely motion jOr
rehearing does nol toll Ihe lime to
file a notice ofappeal.
The appellate court also ..
pointed out that Rule 3.850(g)
provides that a motion for rehearing
must be· filed within IS, days ,()f
rendition of the final order or within
18 days if the order was served by
mail.
\

review,

Alguno v. Stale, 30 Fla.L. Weekly
D389 (411l DCA 219/05)
In this case it was. stressed
that a Rule 3.850 motion is timely
when it is filed within two years. of
the discovery of a counsel's
affirmative misadvice. As support it
cited to Peart v. State, 756 So.2d 42
(Fia. 2000); Love v. Slate, 814 So.2d
47S, 417 (Fia. 411l DCA 2002) (citing
Belhune v. State, 774 So.2d 4 (Fia.
2d DCA 2000).
Washington
v.
State,
30
Fla.L.Weekly 0391 (411l DCA 219/05)
The Fourth OistriCt Court of
Appeals, on a motion for rehearing
or reconsideration by the State, has
withdrawn its' previous opinion in
Otis Washington's case at 29
Fla.L.Weekly D2011 b.
Washington bad asserted that
the State's notice of intent to seek a
habitual felony offender sentence
was
a
"shotgun"
notice
encompassing
all
sentencing
schemes under Florida Statutes
section 775.084.
As a result,
Washington contended that be bad
no notice of the precise sentencing
enhancement being sought' by the
State. On appeal, Washington relied
on Slale v. Bell, 747 So.2d 1028 (Fia.

.",'
Florida Prison Legal Perspectives
3d DCA 1999) to support his
argument.
In granting the. State's
rehearing or, ~ideration, the
appellate. court
opined
that
Washington's reliance on Bell was
misplaced, contrary to the appellate
court's
original
opinion
in
''t;ashington that was withdrawn.
This conclusion was due to the fact
that the appellate court disagreed that
a "shotgun" notice fails to provide
specific notice of the State's intent to
seek an enhanced sentence.
Its
. reasoning was based on a finding that
the notice of intent serves to provide
a defendant with· notice that his
enllre criminal record will be placed
at issue and that he should prepare to
refute any errors in that record (i.e.,
he was not· the person convicted, he
was not convicted of a certain
offense, his conviction was vacated
on appeal). The appellate .court
further opined that when a "shotgun"
notice informs a defendant that he is
subject to all sentencing schemes
under section 775.084, a defendant is
given all the notice necessary to
prepare for sentencing in his case.
However, a different scenario might
exist where the State notices only the
lowest enhancement and then
attempts to seek the highest. But that
distinction did not apply in
Washington's case. The appellate
court held that Washington was
given a notice of intent that he would
be subject to an enhanced sentence
under any of the· provisions of
section 775.084, and it was his
responsibility to prepare accordingly.

Dickey v. Slale, 30 FIa.L.Week1y
0443 (Ill DCA 2/15/0S)
The First District Court of
Appeals has withdrawn its original
opinion in Herbert Dickey's case, 28
FIa.L.Weekly D2108, because of
further consideration on a rehearing
of the claim:' Dickey's plea was
. entered in reliance of the counsel's
mistaken advice that the plea could
not be used to enhance a future
sentence.
r

of' his piaL
It has also been
In Bales v. Slale, the First
mandated by the Florida Supreme
District had certified the question:
Court that a defendant who pleads
"Whether allegations of affirmative
guilty to a crime that subjects him to
misadvice by trial counsel on the
a potential habitual felony offender
senten~cing consequences of
sentence must be told that
a defendant's plea for future criminal
habitualization could affect the
behavior in an otherwise facially
possibility ofearly release.
'
sufficient motion are cognizable as
Despite the fact that failU1'e
an ineffective assistance of counsel
10
advise as to co1latera1
claim?"
Although the Florida
Supreme Court accepted review of
consequences
cannot COnstitute
ineffective assistance of counsel, the
Bates' case, due to a timeliness issue
it quashed the First District's
law is well settled that if a defendant
decision in the case and elected not
enters a plea in reasonable reliance
to answer the procedurally barred· . on his attorney's advice. which in
tum was based on the attorney'squestion.
In Dickey's case on
honest mistake or misunderstandin&
rehearing, however, the First District
the defendant should be allowed to
answered . its
own
question .. withdraw his plea, even if the
affirmatively•
Consequently, it
mistaken advice regards a collateral
certified conflict with the Second,
consequence of the plea. •
Third, and Fifth Districts
which
have held that the claim does not.
entitle a defendant to an evidentiary
hearing. The First District based its
decision on the United States
Supreme Court's Strickland· v.
SERVICE
Washington case explaining that as a
,Computer - Typewriter
matter of law, counsel's misadvice
Transcribing'
regarding the collateral consequence'
Al;L KIN'DS OF TYPING
of future sentence enhancement
Including but not limited to:
constitutes· deficient penormance.
Future sentence enhancement has
LegaiBneb.N~ett~.
Articles, Books, Manuscripts.
been categorized as a collateral
Text Documerns. Database.
consequence of a plea in Florida.
Charts,
Forms, Ryers, Envelops,
See Major v. Slale, 790 So.2d 550,
Black
I ColorPnntlng & Copying
552 (Fla. 3d DCA 2001), affirmed,
814 So.2d 424 (Fla. 2002). If the
8lpltelal ~8'~ for Pri~l11tra
consequence does not affect the ,
FOR A FREE PRICE LIST AND
range of the defendant's punishment,
.
MORE INFORMATION
it is merely a collateral consequence
CONTACT:
of the plea. Included in the category
of collateral consequences are such
LET MY FINGERS"
matters as damage to reputation, loss
DO YOUR TYPING '
of professional licenses, and loss of
Sandra Z. Thomas
certain civil rights, examples· of.
POBox4178
.
Winter Park, FL 32793-4178
which is the· right to vote and the
.iight to own a firearm.
Phone: 407-579-5563
Although
the
Florida
Supreme. Court initially held that a
defendant did not have tq be
informed by court or counsel of any
collateral consequences of a plea,
Rule 3.172 (c), now requires that a
defendant be informed of the
potential deportation consequences

TYP IN G

17

Jl.

Florida PriSon Legal Perspectives
"They have done a dismal job in what is now their primary
mission. Citizens shouldn't have to wait 18 months to two years
, to get their rights restored," said Rep. Joe Negron, R-Stuart, the
House chief budget writer who is also running for attorney
general next y e a r . '
.
Actually the wait is much longer than that and a steaddy
increasing backlog of clemency applications (approximately i
by Bob Posey
9,000) has had the. FPC claiming it needs more money and
employees. Governor Jeb Bush and the Cabinet loosened the
Once again, 22 years after parole sentencing was replaced
clemency rules some in December 2004, however, Gov. B~
with guideline sentencing. the Florida Parole Commission
still asked the Legislature to approve a $1.2 million budget)
(FPC) found itselfon the very verge of being disbanded by state
increase for the FPC for fiscal year 2005-06 to allow 40 more
lawmakers. But. as in the past. the commission has once again
people to be hired to work on the clemency backlog. The state
survived being written out of Florida's laws, for at least one
Senate only approved a $400,000 increase in their budget. now
more year.
the House was saying not only no increase, but to get rid of the
This latest attempt by legislators began April I, during the . FPC all together. Under the House proposal the FPC's parole
regular session of the 2005 Legislature. Without any prior
duties would have been given to four regional volunteer parole
warning a House of Representatives budget committee, that was
boards and clemency investigations would have been shifted to
putting the final touches on the House version of the state's
the governor's executive office"
.•
budget for fiscal year 2005-06, voted overwhelmingly (15-6) not
Gov. Bush, who has been -the biggest obstacle to automatic
to provide the parole commission with funding for this coming
civil rights restoration, said he wasn't worried about the House
year. To not provide an agency with funds to operate or pay
budget committee's vote, noting that there was still a month left
employees effectively kills such an agency.
in the legislative session and there was still time for negotiations
The initial proposal to cut the FPC's funds came from
between the House and Senate on the state's S63-billion-plus
Melbourne Republican Rep. Mitch Needleman. A retired police
budget before the session .ended. Gov. Bush also said laws
officer, Needleman explained his proposal to get rid of the
would have to be changed before the FPC could be got rid of,
parole commission, saying the money can be better used
which had not been proposed at that time.
elsewhere. The 64-uear-old FPC, that is viewed by many as no
On April 4 a bill was filed in the House (HB 1899) to change
longer needed. a waste of taxpayer money, largely ineffective
Florida laws to abolish the parole commission. The bill, in
and incompetent, has in recent years had a $9.4 million-per-year
addition to changing some uncoMeeted laws. would replace the
budget and only about 150 employees. Several recent audits of
t:PC with volunteer regional parole boards, allow parole-eligible
the FPC's operations by the state auditor's office and the Florida
prisoners to appear at parole hearings in person or by video
Corrections Commission (which itself had its funding denied in
teleconference (which the FPC does not allow), provide that
2004-05) had in fact found that much of the FPC's claimed
courts would make all parole revocation decisions. and move
work is actually duplicating (or at least claiming responsibility
clemency investigations to the governor's office. Three days
for) work done by other agencies. mainly the Department of
later, on April 7, the House voted on that bill and stunned
Corrections.
observers by approving it with a unanimous vote of 110-0.
Rep. Needleman, apparently familiar with those audit
This isn't the first time legislators have moved to abolish the
reports, said, "This is a duplication of services in which we try
parole commission. The FPC was originally scheduled to be
to keep a dinosaur alive."
.
abolished in 1993, ten years after the state switched from parole
Rep. Fred Brummer, R-Apopka, was even more SUCCinct
to guideline sentences. The commission, however, ~uccessfully
"This commission is like a bad movie, a bad nightmare,"
lobbied during those ten years to get other duties assigned to it
Brummer said. "When you have an ineffective agency that
so it could avoid being phased out. Those extra jobs included
duplicates functions of other agencies, it's time for that agency
doing clemency investigations, deciding the conditions of
to go away:'
. . .
conditional release for guideline-sentenced prisoners. and
House Republicans who voted to abolish. the commiSSIon
providing victim services.
called it obsolete, because there are only about 5,500 remaining
In 1996 legislators again proposed getting rid of the FPC.
parole-eligible prisoners in the state's prisons left from when the
The commission fought back, calling in favors (or threatening
state switched from parole to guideline sentencing in 1983.
exposure of past political favors, some people believe), and
Legislators also said the commission is incompetent in
sUrvived being abolished, but with a reduction in the number of
performing other duties it has besides deciding who among
commissioners and FPC employees cut by 30 percent Then
those prisoners wlll be paroled or have their parole revoked.
state Sen. Charlie Crist. who is now Florida's attorney general,
Despite its name, since 1983 the parole commission spends the
was one of those who led the push to abolish the commission in
majority of its time conducting investigations on ex-felons .who
1996.
apply to have their civil rights restored after release from pnson.
In this latest move, once the House passed HB 1899 the bill
Florida is the largest of only seven states that do not
was sent to the Senate for a vote where it was expected to find
automatically reStore civil rights, including the right to vote,
more opposition. Two key senators on criminal justice issues.
once prisoners have served their time. In Florida they must
Sen. Victor Crist. R-Tampa. and Sen. Alex Villalobos, Rapply to have their rights restored by the Cleme~cy
Miami, had already stated they would not support the idea. as
Commission, made up of the Governor and three C8bmet
had Gov. Bush.
members. The parole commission does the investigations in the
The bill was placed on the Senate Calendar to be heard and
clemency process. There lay legislators' real problem with the
voted on. sparking optimism among parole-eligible prisoners.
FPC.

Florida
Parole Commission Escapes
Abolishment, At Least For
Another Year

l~

'Florida Prison Legal Perspectives
their families and advocates that this might be the year that the
commission would be abolished. Most of those people believe
the commission releaSes so few parole-eligible prisoners and
revokes the parole of those that are paroled for even minor
te.ehnic:alreasons simply to continue its existence.
Once the bill was filed in the Senate a grassroots push began
to get it passed. Several family members of parole-eligible
prisoners took to the Internet to find and encourage others to call
on'senators to pass HB 1899. Florida Prisoners' Legal Aid
Organization, Inc., that fonned the FPLAO Parole Project two
years ago to push for abolishment of the FPC, sent olit over
1500 emails during mid-April to prisoners' families· calling on
them to contact their senators to demand passage ot' HB 1899.
FPLAO staff made dozens of calls to senators or their offices
urging support ofthe bill.
The bill was rescheduled on the Senate calendar twice, then
scheduled to be voted on at the end of the session. Backdoor
negotiations were going on, however, and on April 28 the news
leaked out that a deal had been struck that the Senate would not
vote on the bill this year. Instead, in an agreement between
House and Senate budget writers made over the weekend of
April 23-24, the parole commission will continue with no
increase in its budget or additional employees for fiscal year
2005-06 and legislators will revisit whether the commission
should be allowed to continue to exist during the 2006
legislative session.
Once again the parole commission escaped the ax. It is
expected that during this next year the commission will focus
almost exclusively on reducing the backlog of clemency
applications in an attempt to appease legislators, and place
parole even further on the back burner. Last fiscal year the
commission only granted 27 people parole out of the 5,500
parole-eligible prisoner population, yet revoked the parole of91,
most for minor technical- violations.
There is no guarantee that the parole commission will be
dissolved next year, or even that HB 1899, or similar legislation,
will be reintroduced in 2006. With at least a 10-month reprieve
no doubt FPC Commissioners Monica David, Fred Dunphy and
Tena Pate will be lobbying hard to seduce lawmakers into
dropping the idea of getting rid of the commission. The FPC's
old "dirty" files will get dusted off to see what dirt they may
contain on current politicians. Deals and promises will be
proposed and made. Parole-eligibfe prisoners, their families and
advocates, and those who wish to see automatic civil rights
restoration in Florida, need' to use those 10 months to push
harder than ever before for change. It may be a long time before
such an opportunity comes again.
[Note: While the FPLAO Parole Project does not claim all the credit
for having HB 1899 introduced. for the past tow years the project has
been very active educating state legislators about the FPC. its
incompetence. unfair procedures. and its innate self-serving policies.
FPLAO intends to continue working to abolish the.parole commission
but depends on donations to do that work. Your help is needed.
especially during these next 10 potentially critical months. Any amount
donations are needed and will be used exclusively to work for
beneficial changes to the Florida parole system. Send donations to
~LAO. Attn: Parole Project.]
(Sources: Miami Herald. 412105; St. Petersburg Times. 412105;
TallahDssee Democrat. 412105; Palm Beach Post, 4128105; House Bill
1899; FDOC and FPC records; OPPAGA Audit Repons; Florida
Corrections Commission 2000 Annual Rejx>rL]

Florida Parole
Parole Releases "5. Parole Re\-ocatiODS
During the past 5e\"eral ~-ears there has been a dramatic
decrease. in the number of parole-eligibJe prisoners being
granted parole in Flori~. Curiously. the number of
parolees who ha\-e their paroles fe\'oked and who ha\"e
been returned to prison had closely paralleJed the number
of paroles granted until this past fiscaJ ~-ear. The chart
below is based on the fiscal periods shown.

zoo
110
100

I--

50

I--

I--

I--

l-

I--

~

0
9S98

96- 9797 88

liB99

11n.~
rI

99- 00- 01- 02- 0300
01 02 03 04

ICParoled .Revocatlons

I

Chart Values

Fiscal Year
9S-96
96-97
97-98
98·99
99-00
00-01
01-02

Paroled
156
B7
ISO
169
114'
101
61
02-o~
68
O~.().J
27
Prepared by tile FPL..I.O Par(J/e Project

Re\'Oked

In
112
111
118
98
101
87
86
91

Beginning in May2002 the FDOC
contracted with Western Uniontoenable friends
and families to send funds to inmates using their
"Quick Collect Service.'! This servicecredits the
... inmates' accounts quickcrthanmailingamoney
order. The department receives $1 per
transaction, which is estimated to total $715,000
over the three-veal' term ofthe contract. The
department tunely processed 712,592 money
orders from inmate family and friends totaling
approximately $35 million and 198,992 Western
Union"Quick Collect"service transactions
. totalingapproxirnately $ 16million. The "QuickCollect" program generated revenues to the
departmentof$361,990 in FY 2003-04. :I

19

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Correctional Facilities

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MAJOR IN8TITUT10NS
MAJOR INSTITUTIONS with Annox
MAJOR INSTITUTIONS with WORK CAMP

.!l

MAJOR INsmunONS with ANNEX & WORK CAMP

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FEMALE INSTlTUnONS

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Florida Prison Legal Perspectives

I4tINTHE

NEWS

AL-During March 'OS Donaldson
Correctional
Facility
Warden
Stephen Bullard was placed on leave
by
the
State
Corrections
Commissioner, Donald Campbell,
after warning in a memo of
"catastrophic circumstances" at the
overcrowded
prison
near
Birmingham: With space for about
1,000 prisoners, the facility holds
1,625 prisoners· in conditions that
have overloaded the prison's sewage
system. A DOC spokesman said he
could not comment on the reasons
that Warden Bullard was placed on
leave.
CT-Five death row prisoners
staged a hunger strike in February
'OS, calling their years of solitary
confinement
"inhumane
and
tantamount to psychological torture."
The prisoners asked to be allowed to
interact with one another. State Rep.
Stephen Dargan, co-chair of the
Public Safety Committee. said he is
willing to discuss conditions on
death row.
FL-During February 'OS, MiamiDade County Jail officials said
prisoners
have
scammed
unsuspecting people from the jail to
make long distance phone calls.
Officials said prisoners make collect
calls, and then persuade the person
on the line to push Star-n and the
number to the pay phone at the jail.
That forwards the line and gives
prisoners access to it. Offi~ials say
they have been getting complaints
about the scam for about a year with
some victims hit with hundreds of
dollars in long distance bills.
FL-On February 10, 2005, a clerk
at a Tampa law firm was arrested and
charged with forging the signatures
of two state judges on court orders.

Spryng Harris, 23, who was a clerk
with attorney Rick Silverman's firm,
turned herself in and was released on
$4,000 bail.
According to the
sheriff's office, Harris failed to file.
documents to have a client's driver
license reinstated with courts in
Citrus and Hillsborough counties but
signed orders as if she had.

~'#1~1"'~111"'1#6."'1"111'~

~ r:Jr

'
The federal lawsuit. Prison Legal ,~
,=.
: News Crosby. et al.• Case No. 3:04~

\I.

,
~
~
~
~

cv-OOI4-J-16TEM

(M.D.

Fla.), ,
challenging the FDOC rejection of a ~
publication, PLN, for carrying prison :
telephone rate reduction services ads :
and challenging compensation for'
: writing articles, is scheduled for trial :
June 6, 2005, in Jacksonville.
~

i
,
! r:ir

,,

~

LA-A 40-year-old Louisiana man
was release from Angola Prison in
March 'OS after serving almost 24
years for a rape that prosecutors now
say he probably did not commit.
DNA evidence from the 1981 rape
did not match Michael Williams. He
'was the 159d1 person exonerated by
DNA testing. according to· the
Innocence Project, which represented
him.
'OK-oklahoma
prisons
went
tobacco-free on. February 14, 2005.
The new policy bans all smoking.
smoke-less tobacco and all products
like lighters, matches or cigarette
papers in the state's prisons and
applies to prisoners, staff and
visitors.
Prisoners' caught with
tobacco products can lose credits
towards parole. Staff caught with
tobacco products can be subject to
disciplinary action.

FDOC

Proposed

Rule

~

!, ornotSASEs
out in their outgoing mail has :
been adopted. Enfon:ement of such ,
i~ "rule"
is therefore invalid. That:
proposed rule is still being cballenged !
: by FPLAO, effectively stopping its ,
:

,,= adoption at this time.

,,

I

i r:zr FPLAO is still waiting on

,

ruling ~
= from the First District Court of Appeal :
= on the challenge to the FDOC's:
S (illegally) adopted rule placing a 5 page :
~ limitation on written materials (except ~
: actual correspondence) sent to Florida ~
S state prisoners by free citizens through S
S the mail. A dec:ision is expected this :
8

: year.

:

,

,

~

I

; or A new report released on April 24 :
I by the Federal Bureau of Justice :
: Statistics says that U.S. prison and jail :
~ populations grew at a rate of about 900 ~
, prisoners each week between mid-2003 ~
~ and mid-2004, reaching 2.1 million:
: people. The report shows that I ofevery ~
S 138 Americans are incarcerated.
:

,

,

ND-In March 'OS North Dakota
prison officials announced ~t they
are using a new scanner ~_ detect
prisoners who smuggle drugs mto the
state penitentiary through the mail
Prison officials claim the machine
can detect drugs, such as LSD, that
are soaked into stationary and sent
through the mail to prisoners. •

33-

~ 210.101(22), which would prohibit ~
~ prisoners from sending postage stamps ,

I

~'II",_"

I

••• , r__ .#"6#1'4"",j

AdYertiae III FPLP
Tarpt aew cllmts or customers
dIrouIb Idvatilina In FPLP. For
lIilIYcrdIcnlcD IDf1 rate information
write or email to the below:

,

FPLP

Aun: Advertisina
1m2 Eat Colonial Dr.
OrI&Ddo, FL 32826-5134

or

21

Florida Prison Legal Perspectives

DEPARTMENT OF CORRECTIONS' i BUDGET SUMMARY
Operating Funds

(FY 2003-04)

Expenditures b)' Budget Entity:

Department Administration.
$54.852. i 08
Security and Institutl~nal Operations.................................................... l.l44, 147,508
Health Services
307,400.119
Community Corrections
:...
.
221,208.055
Infonnation Technology
'"
24,562,233
Programs
39,621,718
Total Operating Fund~
~
$1,791,791,741
,o

Fixed Capital Outlay Funds
Expenditures by Project Classification:

To Provide Additional Capacity Through Expansion and New Construction
To Maintain Existing Facilities and Meet Requirements ofRegulatoryAgencies
Total Fixed Capital Outlay Funds·.....................

.

Total

$25,381,014
3,773,958
$29,154.972
$1,820,946,713

"Local Funds
Volume of Collection Activities:
Cost"ofSupervision Fees
Restitution, Fines, and Court Costs...........
Subsistence, Tmnsp:'lrtation. and other Court-Ordered Payments...........

$25,874,735
56,757 A90
18.909,204

Inmate Banking Activities:

Total Deposits
Total Disbursement;............................
June 30. 2004 Total Assets

$75.895,080
76,383.668
:....·8,552.567

"

Otber Acth'ity:

Revenue from Canteen Operations
Inmate Telephone Commissions

..

... ..

Inmate Cost Per Day by Type ofFacility

......

.

...

.. $20.980.163
17,596.450

Percent of S;-:te General Revenue Budget
Appropriated to Corrections
8.6%
8.4%

I

82%
$:I)

8.0%

Sal
$()

7.8%

$I)
$I)

7.6%

$10

7.4%

$AIUl

roUe

ftNIi:
Inl.

t*
lOlH\j

'CIinI!r

22

MW} ~ Jmpim

ftn*

IrBl.

Qnns

7.2%

98-99

99-00

OQ.01

01.Q2

02.Q3

03.Q4

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

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

Florida Prisoners' Legal Aid Organization Inc.

I

BECOME A MEMBER
YES ! 1wish to become a member of Florida
Prisoners' Leg~ Aid Organization. Inc.
1. Please Check .I One:

o

Membership Renewal

o

New Membership

3. Your Name aDd Address (PLEASE PRINT)
_ _ _ _ _ _ _ _ _ _ _--:DC#

_

Name
AgencylLibrarylInstitution IOrg!

2. Select .I Category

o

$15 Family/AdvoeatelIndividual

o

$10 Prisoner

a

$30 AttomeyslProfessionals

Cl $60 Gov't AgencieslLibrarieslOrgsJetc.

Address
State

City

Zip'

Email Address and lor Phone Number

cr Please make all checlcs or money orders payable to: Florida Prisoners' Lcgal Aid Organization. Inc. Please complete the above form and send it
with the indicated membmhlp dues or subscription amount to: Florida Prisonen' Legal Aid OrganizOlion Inc.. P.O. Box 660-387. Chuluota, FL
32766. For family members or loved ones of Florlda prisoners who are unable to afford the basic membership dues, any contributlon is acceptable
for membership. New, unused • US postage stamps are acceptable from prisoners for membership dues. Memberships run one year.

Conditional Release
An inmate sentenced to murder/manslaughter, sexual offenses,
robbery or other violent personal crimes, and who has a previous
commitment to a state or federal institution or has been convicted as a Habitual Offender or Sexual Predator, meets the criteria for conditional release. Upon reaching the release date with
accrued gaintime, an inmate is placed on conditional release to
serve up to the re1llainder ofthe length ofsentence. Aconditional
release,eligible inmate often accTlIes less gaintime than other inmates due to the nature ofthe offense. Conditional release is not
technically an early release mechanism as it merely provides for
post-release supervision for those considered serious offenders
for up to the amount ofgaintime accrued.

I

REMINDER

On April I, 2005, the yearly membenblp dlles for prlsonen to
become or remala a member of Florida Prisonen' Legal Aid
Orpaizatloa, lae.. W811 laereased one doDar, from 59 a year to $10 Q
year. Dues received and postmarked after April I In the old .mount 01
59 wID be prorated for a 10 month membenhlp Instead of a fuU year.
All memben receive Rorlda Prison Legal Penpedlves. If yOIl ana't
an FPLAO member, join 1111 today wltb the above form. II yOIl are
already a member, dOD't lorget'to resew YOllr membenblp before It
esplres.

23 - - - - - - - - - - - - - - - -

PRISON LEGAL NEWS

SUBMISSION OF MATERIAL TO
FPLP

Bcc:ausc of the large volume of mail being
reccivcd. financial considmltions. and the
inability to provide individual legal assislance.

members should not. send copies of legal
documents of pending or .potential cases to
FPLP without having first contacted the staff
and rec:eiving directions to send same. HeM"
FPLP. nor its SID.fT. m:e n:sponsib!e for OlI1y
ullSOlicited mate:rinI sent
M~ are requested to continue .sernling
·news information, newspaper clippings (please
include name. of paper and. date),
memorandums, photocopies of ~nal deeisions
in unpublished cases. and potential articles for
publication. Please send only copies of such
mnterial1hD1 do not have to be returned. FPLP
depauls on YOU, its readers and mcmb:rs to
keep informed. Thunk you for your
coopmWon and participation in helping to get
the news ouL Your efforts are. greatly
apprecill1ed.

Pmoll Legal N(!tl'$ is a 36 pzIgc monlhly mnguine which hns
bccD published since 1990. It is edilCd b)' Wasbinglon stale
prisoner Paul WrisbL Eocb issue is patkcd with $WIllllJ1ries
lUtd analysis ofrcccnt COW1 d:cUionJ from around Iht counuy
dealing willi prisoner rights aDd written fiom a prisoner
pc:rspecttve. TIl: mapzjne often cumes unities from
attomeyJ giving how-to litigntUm advise. Also imludcd in
entb issue Ql'C news tlIticlcl dealing with prison-rcla1cd
stnlggle ood O(tivism from tbo U.S. ond mound the' world.
AomIll1aubsaip1ion rates arc 518 for pri5oncrs. If you caD'l
AffimS lo scnlJ SI8 at OJU:C" r.cod Al least $9 ADd PLN wiU
JlIVlDk 11= iuu:s at S1.50 =:b for D sill motdb subscription.
New muI unl.lSCd posIaBC !lampS or cmbossaI cavclopcs D'ID)'
be used as p;lymcn!.
For non-incarceratcd ~ the yearly subscription
ndc is S25. InstitutiouJ or FOf'cuioZlld (attomeys.libfams.
. govanmcnt AgenCies, orpnizulicms) subsaiption rates Dre

S60 a yClU'. A SlImp~ I;Op)' or PLN is avnilable for SI. To
JUb5cribc 10 PLN, COJII.al::t:
Prlsim Legal Nnrs
].100 NW 80th Slrftl
PMBus
$DJUI~. WA 98117

If SOt please complete tbe bela,," infonnation and mail it to FPLP so
that tbe mailing list can be updated:
NEW ADDRESS .(pLEASE PRINT ~LEARLY)

Name
lost.
Address
City

State

Zip

See PLNs Web3ite at
hllp:,·/www.pTisollI.B.tl1netvf.OIl:

~Mail to: FPLP. P.O. Box 660-387, Chuluota, FL 32766

EmaiIPLN at
t4rimasto@prisD:nJegaJnnn.org

Florldo Prluon Logol
PorspoctlV88
PO Box 660-387
Chuluota VI 92766

VOLUME 11

ISSUE 2

"MAR/APR 2005

NON-PROFIT

u.s. POSTAGE
PAID
OVIEDO, Fl
PERMIT NO. 65