FLORIDA PRISON LEGAL

Pers Jectives
ISSN# 1091-8094

VOLUME 12. ISSUE 2

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f what
occurred recently is a
indication of
Ipicked
what will continue, Gov. Jeb Bush' may have finally
the right person to clean up what
now
good

has

has

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.exposed to be corruption throughout the Florida
Oeparbnent of Corrections (FDOC).
In February Gov. Bush abruptly fired the former
head of the. state's prison system, James Crosby, after
months of a' steady barrage of scandals involving
.corruption and illegal activities by top prison officials
became public. Named by Gov. Bush to replace Crosby,
Col: James McDonough, 59, a fonner Army eommander,
hasn't wasted any time since he took over in getting rid of
. the most obvious bad apples and launching his own
investigations into areas where more corruption may be
hiding.
' . .
McDonough has said that his first job is to restore
a code of ethics in the prison system 'that includes
"honesty in all thinp." He's got a big job ahead of him to
do that. As is coming to light, corruption and good old
boy cronyism permeates the Florida prison'system and.has
for many decades. McDonough has, however, faced
tough' p"iiiblems before. Prior to coming to the FDOC he
served' in the Army for almost thirty years. He waS, the
commander on a mission to Rwanda in the 1990s whose

ON

I

job wasn't just to try to stop genocidal killing, but also to
figure out how to keep refugees from dying of cholera.
He also led troops Into battle in the Balkans. He finished
up his Army career as commander of the Southern
European Task Force Infantry Brigade. Most recently he
had been a part of Gov. Bush's administration as the
state's director ofdrug control policy.
McDonough admits .that he doesn't have
experience working in a prison system. "But I do have
experience in leadership," he said. He has promised that
. he is going to go over the department from a management
standpoint from top to bottom, thorou~ examining
practices, budgets and contracts. Something many feel is
long o v e r d u e . .
.
For several months now a dark cloud has been
hanging over the prison sysiem. 'There are state and
federal grand jury investigations underway into
wrongdoing ~y top officials at the agency, and
investigations being conducted by the Florida Department
of Law Enforcement and FBI. So far the problems that
have been made public include allegations of theft and
misuse 'of prisoners and state property by prison guards
and officials, a steroid trafficking ring of prison guards,
phantom employees, assaults and intimidation by prison
guards and top officials, employ~n-employee sexual
assaults, and questionable contract bidding practices. See:
FPLP,'VoI. II, Iss. 5 and'6, and Vol. 12, Iss. I, tor more
detaiJs.
As 'of mid-March it still hadn't become clear why
fonner FDOC secretary James Crosby was forced to step

..

FAMILIES ADVOCATES FIUSONEllS

THE
INSIDE

MAR/APR 2006

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FDOC Contracts Under Scrutiny
Sue Under ADA
Post Conviction Comer
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Parole Commission Avoids Ax-Again
. , Fla. Prison Phone Rates Reduced

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Florida Prison Legal·Perspectives
FLORIDA PRISON LEGAL PERSPECTIVES

P.O. BOX lSI J
CHRISTMAS. FLORIDA 32709
Publishing Division of:
FLORIDA PRISONERS' LEGAL AID ORGANlZAnON.INC.
A501 (e) (3) Non-plOflt Orpnizllllon
E-mail: folp@aol Cllm
Website: www,fnlllOQTB

FPLAG DIRECTORS
Teresa Bums-Posey
Bob Posey. eLA
David W. Bauer, Esq.
Loren D. Rhoton, Esq.

Publisher

Editor
Research

FPLPSTAFF
Teresa Bums-Posey
Bob Posey
Sherri Johnson
Anthony Stuart

I
Florida Prisoners' Legal Aid Organization, Inc., ,P.O. Box 1511,
Chrislmas, FL 32709. publishes FLORIDA PRISON LEGAL
PERSPECTIVES (FPLP) up to'six times a year. FPLP is a non-prOfit
publication focusing on the Florida prison and criminal justice
systems. FPLP provides a vehicle for news, information. and
n:sourccs affecting prisoners, their families, ftiends, loved ones, and
the general public of Florida. RecbJction of crime and recidivism,
maintenance of family ties, civil rights, Improving conditions of
confinement, promoting skilled court access for prisoners, and
promoting lU:COuntablllty of prison officials are all issues FPLP Is
designed to address. FPLP's non-attomcy volunteer staff cannot
respond to requests for legal advice. Due to the volume ofmall that Is
received and volunteer staff IImIJatlons, all correspondence that Is
received cannot be responded to, but all mall will receive individual
attention. Permission Is P!ed ro reprint material appearing In FPLP
that does not Indicate It Is copyrighted provided that FPLP and an)'
Indicated author are Identified In the reprint and a copy of the
publication In which the material is published 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 not
be relied upon as authoriJatlve and may Not contain sufficient
information to deal with a leSal problem. FPLP Is auromatlcall)' sent
to all members of FPLAO, Inc. as a membership benefl!.
Membership dues ror FPLAO. Inc., operate yearly and are SIO for
prisoners, SI5 for fiunll)' members and other private Individuals, $30
for attorneys, and S60 for agencies, libraries, and Institutions.

2.

1 - - - - - - - - - - - - -.....

down, although Bush said it would be clear soon why he
had to go. The speculation is that with the ongoing grand
jury probes. there could be state or federal criminal
indiCbnents coming. and not just against Crosby. A Bush
spokesman has confinned that Crosby is the target of an
ongoing investigation, but about exactly what nobody is
sayins.
Not WastIDg Time
Only thirteen days after being appointed to
repJace the ousted Crosby, on February 22. McDonough
stunned FDOC officiaJs and employees by ordering all
employee cJub activities to immediately c:ease and
ordering that such clubs' financial accounts be fioomL
McDonough cited a need to evaluate the use of
controversial fundraising tools used by tho employee clubs
to supposedJy raise money for charitable work. The clubs
. are run by employees at most FDOC facilities· and have
been operating without eft'ective oversight for years,
leaving them open to corruption some employees now
claim.

Prior to 1999, each prison had its own business
office and the staff would usually manage employee club
'funds aJso. When Michael Moore was appointed secretary
that year the ~usiness offices were consolidated into
regional offices and the employee clubs were let to
manage their own finances. supposedly with oversight by
individual wardens. That didn't work out very well.
. Allen Clark, a high schooJ dropout, but a buddy of
James Crosby, and who was forced to resign his $94.000
job as Region I director Jast year when accused of
wrongdoing, was the subject of a 1999 FDOC internal
investigation concerning his misuse of employee club
funds at New River Correctional Institution.
Th8t investigation followed accusations that
Clark, then a captain at New River. improperly used
employee trust fund money to pay for travel and
equipment for softball and flag football teams that played
in tournaments against other prisons' teams. The
investigation allegedly found no reason to take. action
against Clark, even though other employees reported that
CJark and a cadre of his henchmen threatened retaJiation
against anyone protesting how he used employee club
funds. Investigators did find that:
• ,Employee club money had been given to
individuals but no receipts obtained for tho cash.
•

Employee club assets, like a Sam's Club card,
were used for personal purcbases.

•

Clark and another New River captain, Kenneth
Lampp (who was later promoted to warden) had
improperly taken bolt cutters from the prison to
cut locks oft' ballot boxes during employee club
elections in which they. were candidates and

Florida Prison Legal Penpeetives·
coerced staff members into voting for certain
calldidates.
• New River Warden Michael Rathman was aware
. ,the election .was likely rigged by ·ballot box
~umng and coercion but did nothing about it.
~

'.,

.1 •

And neither did anyone else when all that was
found during the internal investigation.
Clark also managed a 2002 softball team of
Florida State Pri~on employees named "The Big House."
The. team's behavior was called barbaric by opponents at a
state tournament and was baMed from future participation
in Florida Law Enforcement Games. Seven of the 20 "Big
House~ players have since been arrested or cited in state
and federal investigations concerning new allegations.
.pac employees have complained that sports·
teams, often paid for with employee trust funds, have
embarrassed the department with bad behavior and
extravagant spending. Others outside the department are
criticizing where employees club funds come from.
Club members conduct fund-raisers like raftles
and dinners as well as operate employee canteens to raise
money for the clubs. Less well known is that prisoners are
alsp usl:id to provide personal services to FDOC offlcials
and staff for which the employees clubs get a cut of what
the prisoners are paid Those services include prisoners
being used as staff barbers, nearly every FDOC prison }ijls
a staff ~h9p•. Unlicensed shops, as are the prisoners
who work in them. Select prisoners are also quietly paid
by employees clubs to wash employees' personal vehicles,.
shine their. shoes . 'and boots, and work in staff canteens.
Such prisoners are select, because they are only a handful
among the prisoner population who get paid The
majority of prisoners are strictly prohibited from engaging
in any activity that might make them money.
PersoaaJ.Stafl'Services Sbut DowD
,
For decades, however, the $1 haircuts, shoe shines
and car washes have been juSt one more job perk. No one
saw. lUIYthing wrong with using prisoners to do such
~. w~rk for FOOC employees. Of course, it was
a1ways.. done out of the public's sight. No one saw
anything. wrong, that is, until last year when it was
reported that there was an ongoing investigation into
FDOC officials and staff·allegedly using prisoners to work
on ~onal vehicles ,and possibly using state equipment to
build personal items, like trailers and barbeque grills, for
officials and staff. Several FDOC employees had vehicles
and other items seized from their homes last year,
including former secretary James Crosby, as part of that
investigation by law enforcement.
In December 'OS, Florida Prisoners' Legal Aid
Organi1.ation chairwoman Teresa Bums Posey contacted
CrosbY abQ~t the legality of using prisoners to perform
q~ ~oilal services for statT, such as cutting their hair,
shining' their shoes, washing their cars and serving them in

staff canteens.
Burns Posey specifically questioned
Crosby about the legality of unlicensed staff barbershops
and unlicensed prisoner barbers. Burns Posey has a
particular interest in that because she is a licensed barber
and owns licensed barbershops. Crosby failed to respond
to such questions, promp.ting Burns Posey to go to the
governor's office and state Department of Professional
Regulation with her questions and adding allegations that
the FOOC. is in violation of state law by using paid, but
unlicensed, prisoner "barbers" in unlicensed staff
barbershops to cut the staff's (who are members of the
public) hair. (See, cl)apter 476, Florida StaMes.)
. While awaiting a response from the governor's
office and the DPR, Crosby was fired and McDonough
took over. Bums. Posey immediately gave McDonough
and the Department of Insurance noti~ that unless the
staff barbershops and other activities using prisoners to
perform personal services for staff were not shut down she
would file suit. Within days of that notice McDonough
ordered the staff barbershops, shoeshine, and carwash
operations closed.
Burns Posey· says she·' hopes, if the staff
barbershops are eventually reopened, that the Department
will set up a barbering school where prisoners can actually
learn the trade and be licensed. And if paid, such prisoner
barbers must receive higher compensation, as state law
requires deductions to be made anytime prisoners are paid
to work to help payoff any r~titution or child support that
maybe owed. The employees clubs were noi making such
deductions when payi~g prisoners, contrary to that law.
Bums PoseY .aiso wrote to McDonough in
February about another: serious problem concerning
prisoners' families: The extremely high rates they are
being charged under the FDOC's contract with MCI to
accept collect phone calls from their incarcerated loved
ones. She explained how under that contract, which is
,scheduled to be renewed in May of this year, prisoners
families are being charged the highest legal rates possible
to stay in contact with someone in priSon. The major
problem, she pointed out, is the 53 pen:ent kickback
commission that the FDOC insisted on before MCI was
aw8rded the contract.
In-state calls average almost $6.00, while out-ofstate calls average about $20.00 for a IS minutepphone
call, with more than half going to the FDOC, which has
little or no costs associated with the ~te telephone
system. Burns Posey called on McDonough to look at that
contract and consider 'giving prisoners' families some
relief from what can only be considered gouging by a state
agency. [FPLAO started the Families Against Inflated
Rates (FAIR) Campaign in 2003, which has been working
to get the phone rates reduced since then.]
In February, McDonough also ordered all
employees clubs' softball activities to shut down, saying
the department's name will not be associated with the
activities as they have been operating. It seems that some

13

•

Fiorida Prison Legal Perspectives
softball activities were involved in many of the problems
now being revealed about the department. as covered in
other articles in this issue of~. •

StlrnlldJl1lg 01Ult at

FlD>OC' Sojf~1b>allll
n February 27 the new head of the Department 'of
O
Corrections (FOOC) placed nine employees on
unpaid leave behind brawls at a softball banquet and

4

tournament last year.
Those placed on leave included Maj. James Bowen
and, Col. Richard Frye, who along with former FDOC
Region I Director Allen Clark ~ere charged with felony
assault for their 'involvement in the fight at the Florida
National Guard Armory in Tallahassee on April Fools
Day.
The felony charges were later reduced to
misdemeanors, then dropped altogether in January when
prosecutors said too many witnesses had conflicting
statements and there was a lack of evidence.
Bowen and Frye were placed on unpaid leave in
Nowmber when they were' charged. but were placed on
paid leave in January when the charges against them were
dropped. Clark had already resigned in August after a
criminal investigation began into steroid . use and
embezzlement among prison employees.
.Another FDOC employee, Brad Tunnell, the
correction services administrator for Region I, was placed
on paid leave in November. Tunnell, the son of Florida
Department of Law Enforcement Commissioner Guy
Tunnell. was not charged in the April III fight. but was
accUsed of sweating at and threatening another employee
who was helping the victim. who got jumped on. from the
banquet.
In addition to Bowen and Frye, the FDOC
employees placed on unpaid leave Feb. 27 included:
Georgia Arnold. Region I aSsistant warden for programs;
James Barton. a lieutenant at Charlotte Correctional
Institution; Barbara Durrance, an executive secretary at
the R.egion I office; Qonnie Mayo, a sergeant· at
Washington Correctional Institution; Eric McMillon, a
sergeant at Apalachee Correctional Institution; and Ernest
Tharpe. a correctional officer at Liberty Correctional
Institution.
In a meeting with 300 ranking officials in ~
FDOC a week before 'he placed the nine on unpaid leave,
McDonough said there will be major personnel changes in
the Florida prison system ifthat is what' it takes to redefine
the culture ofthe department
.
Among its problems, the prison system ,is facing
federal lawsuits over alleged sexual harassment of female
employees and the abusive use of chemical sprays on
prisoners at Florida State Prison. The department is also
the target of state and federal investigations into misuse of
money and prisoner labor, and is under legislative scrutiny

I

concerning no-bid pharmaceutical contracts. Several
former employees have been convicted of steroid use and
trafficking. some of whom have agreed to cooperate in
other investigations into criminal activities and
wrongdoing in the department.
In February McDonough also fired Lanyard
Owens,warden of Gainesville Correctional lristitution. The
reason for Owens being fired came out in a department
report released March 2. The department investigation
showed that Owens used prisoners and state materials to
refurbish a trailer holding two barbeque grills owned by
Owens. Employees said welding, painting and installation
of diamond plating were done on the trailer and grills at
the GCI maintenance shop last year. Employees and
prisoners who were interviewed said Owens brought the
grill to the shop and oversaw the work being done. Owens
told investigators that he dido't know prisoners,
employees and state material were being used to upgrade
the grill, which he said was used in employee events such
as softball games.
The FDOC also announced March 2 that two
other top-level FOOC employees left the agency shortly
after McDonough took over in February and that
investigations of those employees continue.
Jesse
Whitfield was fired from his S7I,243-a-year job as an
assistant warden at Union Correctional Institution on Feb.
22, Whitfield is a fonner inspector with the FOOC's
central office in Tallahassee.
Ron Jones, who h8d been making $88,677 as
warden of South Florida Reception Center, resigned Feb.
21. Another investigation is being conducted at Hamilton
Correctional Institution. It was continned on Mar. 2 that
Col. David Coleman, who had been overseeing the HCI
work camp, was placed on leave, but no details were
released.
,On Mar. 111 more information was released. The
FOOC revealed that some· of the nine employees placed
on unpaid leave a few days earlier are also accused of
being involved in a second fight at a softball tournament
in Jacksonville in Mayof200S.
The fight in Jacksonville left one employee with a
broken jaw. Brad Tunnell is accused of breaking the
man's jaw and causing him to be hospitalized, although a
spokesman for the Jacksonville Sheriff's office said there
was no record of Brad Tunnell being arrested in
connection with the incident. McDonough confinned that
Brad, Tunnell was involved in both the Tallahassee and
Jacksonville fights.
With an FDLE investigation also going on. it is
riot'clear whether it involves the fights too. McDonough
said. however, that he has no problem with Guy Tunnell's
(Brad Tunnell's father's) agency being involved, and
quickly rejected any sugges~ion that it could lead to a
conflict.
McDonough continued his shakeup of the
department on Mar. 3 when he fired five of the nine

Florida Prison Legal Penpectives
rumors of problems with ~ntraets between the
department and several. private companies. Smith, some
believe, was fishing for details of what th,e investigations
are looking at
McDonough said he couldn't give details, but that
he would share the information with legislators as soon as
possible. "I know what I know." McDonough said. "The
hell of it is. I don't know what I don't know. There are
some problems with contracts. that doeS not mean there
are problems with all contracts:"
. The FDOC (at least since Jeb Bush became
goverrtor) has expanded privatization in the prison ~
including food services, prisoner canteen operations,
health-care services' for South Florida prisons. and some
entire prisons.
.
'McDonough later said that the questionable
contracts included construction and services, but wouIdn-t
be more specific. He did say none of the problems being
loobd at threatened the safety of prisoners or. staft: He
added that some contracts are being intemally reviewed
for inefficiency or lack of oversight, while others. are the
concern of the state &lid federal investigations.
McDonough also. said that the nepotism and
cronyism within the department is a problem that he will
cmrect. He said there were more than 100 examples of
questionable hiring and promotiorw that have come to his
attention. "It appears to me that the protocol in the
department (concerning nepotism and cronyism) have
been 4isregarded in ~. years." he said. "I need to fix
[Sources: Gainesville Sun, 2128106, 313/06; Orlando
that immediately and I sball."
Sentinel, 3/1106; AP. 3/1106; LiJUJand Ledger, 312106,
He added that he is aware that in the rural areis
3/4/06; South. Fla. Sun-Sentinel. 3/2/06; St. Pelenburg
prisons are the Prominent employer, he appreciated the
Times; AP, 313/06; FDOC Investigation Reports.] •
"family heritage" of generations working for the prison
system. but said promotions and birinp should always be
based
on merit.
FDOC COlDltIral.Ct.S Dll'&WRl1llg
A few employees in powerful positions ,had
SCll'1UlttRl1llY
created an unhealthy atmosphere for the bulk of the
agency's workers, McDonough said. A "cultural battle"
DOC interim secretary James McDonough confirmed . waged by a few rogue employees has hurt thedepaitment,
March 9 what had been ~uspected for awhile: The
he claims. "If you (as an employee) start to exist in a
state and federal investigations. one involving the Florida
system in places where the other side is advanced, where
Department of Law Enforcement (PDLE) and a sfato.wide
the definition of prison culture is to be bigger. better,
grand jury and the other involving.the FBI and a federal
badder. meaner tJum the prisoneis, th8t (behavior) is where
grand jury, are focusing on contracts between the prison
.the reward seems to be and that can affect lots of
system and private companies.
(otherwise) good people," said McDonough.
McDonough also told the state Senate Justice
He also told legislators that he will continue his
Appropriations Committee on March 9 that promoti~ of
review of the employees clubs•. He froze the clubs' funds.
friends and'family within the Department of COl'I'eCtions
estimated to be $1.5 million statewide, in February.
was .a serious concern and that he will be making
McDonough was called back to the Capitol by
personnel changes ·soon that are re18ted to nepotism and
.lawmakers on March 13, for an update on contracts with
cronyism.
TYA Pharmaceuticals. . The FDOC, apparently with
Sen. Rod Smith, D-A1achua (who reportedly is a
Crosby's approva~ without soliciting bids from other
personal mend of James Crosby_ the former FDOC
companies, gave TYA. a Tallahassee company. contracts
secretary who was fired by Gov. Jeb Bush in February).
to split pi~ for cost ~Vings and repackage them in bubble
told McDonough during the committee's hearing that
containers for distribution to prisoners.
lawmakers are concerned about allocating funds in the
next few weeks of the legislative session considering the

employees placed on unpaid leave a week earlier and
demoted or otherwise disciplined the other four. Those
. fired .were: Maj. James Bowen." Col. Richard Frye,
Region I executive secretary Barbara Durrance, ACI Sgt.
Eric McMiUon and Region I assistant warden Georgia
Arnold. An FDOC investigation report found that all five
had lied to investigators and that there was sufficient
evi4ence to support allegations that Bowen and Frye,
along with former Region I Director Allen Clark. jumped
on and beat James O'Bryan at the Tallahassee banquet
when he accidentally slipped in a puddh, of beer and
vomit and knocked Durrance (Clark's secretary) down.
McDonough said he bas begun the process of decertifying
Allen Clark as a correctional officer.
As for the other four: Officer Ernest Tharpe, the
employee whose jaw was broken in the Jacksonville fight,
allegedly by Brad TunneI~ was suspended for 30 clays
without pay and transferred from Liberty Correctional
lnstitution; Brad TUIlIlliU was demoted and transferred (he
resigned a feW days later); Sgt. Donnie Mayo and Lt
James Barton were also demoted to lower rank, and
transfetred.
.
Internal inv.estigations continue into allegations
that employees clubs. whose purpose is supposed to be
supporting local charities, have been using money to
throw lavish employee parties, some descn"bed as drunken
orgies. and to buy expensive goods for employee softball
teams, includiIig bats costing Iumdreds of dollars.

F

\s

Florida Prison Legal Penpeetives
Two reports by the Auditor General released over
the past year had blasted the contracts for lack of oversight
and accounting problems, along wi~ other things.
"I think thiS was a classic case of
mismanagement," McDonough said, adding that he
planned to recommend changes within the week. Asked if
he thought TYA could do the job, McDonough said he
was "dubious."
Keefe aDd MCI Coatracts

McDonough also told legislators that he has
concerns about two other contracts between the FDOC
and private companies. He told legislators that he is
reviewing a contrael with Keefe Commissary Network, a
private company contracted with to operate the prison
canteens where prisoners can buy hygiene items and
snacks in October 2003. Since then Keefe, with FDOC's
assistance, forced out another private company that had
vending machines in the prisons' visiting parks, in which
Keefe set up prisoner-operated canteens.
"That (contract) will be scrutinized with great care
by me and perhaps others," McDonough said. Asked if
the ~others" included state and federal investigators,
McDonough said, "We'll have to see."
Keefe had been represented by lobbyist Don
Yaeger, whom it was reported last year by the St.
Petersburg Times was treating Crosby to concerts and
sporting events. 'Crosby said he paid his own way. (see,
FPLP, Vol. II, Iss. 5 and 6, page. 5-6, "Lobbyist Ties of
FOOC Secretary Scrutinized.")
'.
According to the Legislature, Yaeger and two
other lobbyists stopped representing Keefe on Feb. 22,
less than two weeks after Crosby was dismissed by Gov.
Bush.
McDonough told members of the Joint Legislative
Auditing Committee. before whom he appeared, that he is
also concerned about the contract between the FDOC and
MCI concerning the inmate telephone system. He said he
is examining the high·costs of collect calls that prisoners
make to their families. Under the FDOCIMCI contract
prisoners can only phone friends and fiunily with collect
calls that cost $1.50 as a connection charge and .26 cents a
minute--for in-state calls. Out-of-state calls are even
higher, a S3.95 connection fee and SI.OO per minute. The
calls are automatically limited to 15 minutes and those
family members or friends on the outside are charged the
high rates. The FDOC receives S3 cents of every dollar
~harged for the calls under the contracl
"I don't think.that's right," McDonough said. He
noted that he calls his son overseas for 3 cents a minute.
"Why are (the families of prisoners) being punished?," he
rhetorically asked. (A question FPLAO and famtlies have
been asking for years.)
.
[Source: Gainesville Sun, 3/10/96, 3/14/06] •

61

Tellll Top fDOC Officials
OiUlste«ll, Six More 'Promoted
ames McDonough, the former career Army colonel
Jnamed
by Gov. Jeb Bush in February to replace 'former

Department of Correction's secretary James Crosby,
dropped another smart bomb on March IS, 2006. That
was the day he outright fired nine more top prison
officials.
Michael Rathman was fired as warden of Florida
State Prison and Lamar Griffis was fired from his position
as assistant warden of the .Reception and Medical Center
at Lake Butler. In al~ two regional directors, four
wardens and three assistant wardens were given the boot.
Secretary McDonough said they were ousted because they
"do not have my trust and confidence."
Regional directors AI Solomon (Reg. I) and.Brad
Carter (Reg. 11), along with wardens Kenneth Lampp,
Rick Anglin and Dave Farcus and assistant wardens Dale
Hughes and Cornelius Faulk were also thrown out of the
FDOC's goodold boy club.
Meanwhile, McDonough, who reportedly has
Gov. Bush's full support in cleaning up the scandal-ridden
Florida prison system, immediately· promoted six other
FDOC officials, including maldng Richard Ouger
director of Region U. Dugger had once been the FOOC
secretary for a couple ofyears under Gov. Bob Martinez.
Wendall
Whitehurst, warden of Union
Correctional Institution was promoted to Region I
director. Wardens Ronnie Harris and Randall Bryant were
promoted to larger prisons, Bryant replacing Rathman at
FSP.
Assistant wardens John Hancock and David
McCallum were promoted to warden.
The firings and promotions came a day after an
investigation report released by the Florida Department of
Law Enforcement (PDLE) concluded that former FDOC
secretary James Crosby tried to stop ~ FDLB
investigation into the department last year by (allegedly)
threatening FDOC employee Brad Tunnell, whose father,
Guy Tunnell, is head of the FDLE. (Not reported in the
mainstream media is that some people from Bay
CountylPanama City,· where .Guy Tunnell was sberitT
before becoming head of the FDLE, claim Guy Tunnell is
corrupt himself and has sent many people to prison on
false and fabricated evidence.)
Crosby was forced to resign in Febrwiry by Bush
. after he was named as a target in a wicf0.nmsin8
investigation into possible criminal activity ~ong prj~on
employees. Crosby denies any wrongdoing, but bas hired
anattomey.
According to part of a report released by the
FOOC's inspector general on Mar. 15, Lamar' Griffis
knew about falsified time sheets for employees who
instead of working were practicing or playing softball and
he allegedly knew fake FDOC lO's were made for non-

.

,

"

Florida Prison Legal Perspectives

S1Uljpreme COURrt
IPIl'lisolIllcrs Cml11l SlIDe 1Unn(JlcIr ADA

Georgia had argued that states should be immune
from prisoners' ,lawsuits brought under the ADA. Not a
sing~~ justice agreed with Georgia.
Justice Scalia, writing for the Court, said stales
can be sued under the ADA for violating individual
disabled prisoners' constitutional rights. However, the
Court put otT·deciding whether prison systems can be sued
for general violations of the ADA, a more significant and
contentious issue.
Twelve other states had joined with Georgia in
urging the Court to prohibit general suits brought by
prisoners under the ADA. The Court, however, refused to
consider that issue at this time. Gene SchaeJr, a
Washington attorney, said that the justices probably didn't
want to address that issue with Justice Sandra Day
O'Connor there (Justice Alita had not yet taken over from
her on Jan. 10).
'
O'Connor was the deciding vote the last time the
Court ruled on an ADA issue, joining the four more-.
liberal justices in a 2004 decision holding that states could
be sued for damages for not providing the disabled access
to courts.
'
Amazingly, Goodman had been supported in his
case by the Bush ac:Imit'dstration, which argued that there
was a history of mistreatment of disabled prisoners
considered by Congress when it passed the ADA.
It is felt by some that the Court could have used
Goodman's case' to further shield states from federa1
interference, which .was notable in many cases when
former ChiefJustice Rehnquist ran the Court.
"This is another step forward moving away from
the states' rights and recognizing Congress' power to
.proteCt certain groups who are discriminated against, said
John Brittain, chief counsel for the Lawyers' Committee
for Civil Rights Under Law.
See. United States
Georgia, 19 FIa.L.Weekly
Fed. S13 (1110/06).

n January 10, 2006, in a unanimous decision, the US
O
Supreme Court held that states
'sometimes be
sued
damages by disabled prisoners. It was the first

.CorIrectnolIilall Officer
.Attacks IPRn~IrlllIil~cist

.FDOC people so they could play on employee softball
teams.
There were also allegations being inv~igated in
mid-March of top FDOC officials throwing parties at their
state-owned (heavily taxpayer subsidized) homes where
they sold tickets for attendance and charged for drinks as
welt· FPLP. will report more on that story as it develops. .
On March 16 McDonough also forced another top
FDOC official to retir~. Greg Drake, S3, a deputy
assistant secretary in charge of security for 128
correctional facilities was told by McDonough to hand in
his resignation or be fired. Drake, who had been with the
FDOC since 1979 was forced out of his $103,Ooo-a-year
job at the department's headquarters in Tallahassee. No
reason was given for his departure, although Drake is
,generally known to have been a crony of James Crosby
and deeply entreIK:hed in the system as a "good old boy."
., According to a statement made by McDonough on
March IS, there are going to be more front page stories
about the department before there are fewer, indicating
that his efforts to clean up the prison system is far from

over.
According to some old time prisonel'$,
may not realize just how widespread the
corTuption is in the prison system, but getting rid of
corrupt top officials and replacing them with competent.
ethical people is a step in the right direction.
,
And according to one prisoner, who asked not to
be' identified for fear of retaliation, it all started goirig
downhill for the FDOC good old boys in 1999 when a
gang of them stomped death row prisoner Frank Valdes to
death, for which kanna required a payback. "It just took a
Uttle while to get here, Frank," the prisoner said. •
~cQonough

~US

a

can

for

case to test how the Court under Chief Justice John
Roberts will handle cases involving states' rights, and in
this· case it went against the states.
The high Court held that Georgia state prisoner
Tony Gc>odman can use the 1990 Americans With
Disabilities Act (ADA) to sue prison officials. Goodman
clainm GA prison officials did not accommodate his
disability, that he was confined 'for more than 23 hours' a
day in a cell so narrow he could not turn his wheelchair.
The ADA is a federal law meant to ensure equal treatment
for .the disabled. The Supreme' Court had already
previoUsly ruled that the ADA applied to protect prisoners
as well as free citi2leos, but had left open whether
individual prisoners could sue for violations, of the ADA.
Goodman's case answered that in the affirmative.

It

v.

STARK.E. FL - On Feb. 23, '06, Starke police say 34year-old Marcus Henry, a correctional officer at Lawtey
Correctional Institution, tried to rob the phannacy in a
Winn Dixie store in Starke in order to steal narcotics such
as Oxycontin.
"The pharmacist has blood all down the front of
his shirt." a caller to 911 told the police minutes after
Henry allegedly jumped over the phannacy counter and
was caught trying to steal pills. When confronted, he
pulled a knife and attacked the pharmacist cutting his
neck, according to witnesses. Then he ran.
Henry's familiar face made it easy for witnesses
to identify him for police who tracked him to his house,
were he Was' coaxed outside by hiS father where police
arrested him.
I7

Florida Prison Legal Penpeetives
. 'Although'a prison guard, 'Henry was apparently
addicted to drugs, poliCe feel. FDOC records show he was
given a drug test when first hired by the department but
none since. The FDOC does not randomly drug test its
staff arid only gives tests for cause after employees are
hired. Curiously, although prisoners can only get drugs
from someone on the outside, like visitors or staff, the
department spends tens-of-thousands of dollars each year
to randomly drug test prisoners, many several times a
year.•

lFnOll'R«ila SUllpll'~me C01lnll't De'.Ullty
Mall'slhlallll U1l1l«llell' Cll'nmmnmlall
HlI1lv~stngatHOml
TALLAHASSEE - The toptVio security officers at the
Florida Supreme Court left their jobs in February '06
behind a criminal investigation concerning the theft of
ammunition from. the Florida Department of Law
Enforcement, according to a report in the March 17 St.
Petersburg Times.
.
According to that report, officials at the court
would not discuss the departure of Marshall Stephen C.
Robertson, 53, and Deputy Marshall Ramon Santos, 33,
citing a pending criminal investigation.
Santos is a fonner FDLE agent who spent three
years guarding Gov. Jeb Bush before getting thejob at the
Supreme Court last October after Bush wrote him a
glowing job recommendation' for' the 552.00O-a-year
position. Santos' former position at the FDLE included
purchasing weapons. and ammunition for FDLE training
classes. Records at the court indicate Santos is the target
ofthe criminal investigation.
Robertson, who was appointed to the 590,OOO-ayear marshall's position a year ago hired and supervised
Santos. resigned Feb: 6. Robertson, who does not appear
to be directly involved in any theft. remains on the court's
payroll until April 28, unless there are "negative
developments ,related to the Ray Santos incident,"· wrote
Chief Justice Barbara Pariente in a letter obtained by the
Times.•

For eighteen hours no substitutes could be fou~
and California's judicial system collapsed. The State
discovered it could not force, even by Court order, a
physician to kill a human being.
A pivotal matter was a Florida study on the level
of anesthetic in the blood of executed prisoners. These
revealed the men had, in fact, been tortured to death when
the potassium chloride used reached the heart. The study
concludes there is no way to kill a healthy human without
causing cruel and unusual pain and suffering.
Next, Morales was sentenced to death on the basis
of the testimony of a jailhouse snitch informant. It was
shown that the snitch had lied. Judge Charles McGarth,
who presided over Morales' trial, called for clemency,
stating that executing Mqrales on the basis of perjured
testimony "would frustrate the design of our sentencing
laws, and would constitute a grievous and freakish
injustice."
Securing perjured testimony from snitches has
made a mockery ofJustice throughout America'.
Activist Crystal Bybee of End the Death Penalty
stated, "If they want to torture people to death on the basis
of lies they are going to have to come right out and say
so."
U.S. District Court Judge Jeremy Fogel, who
issued the "humanely" ordef' to San Quentin, then ordered
hearings on the constitutionality of the death penalty for
May 2006. Effectively, this has shut down all executions
in California. Florida. and the nation. •

lROUBlBJ

SOwnON

Condemned kine, Michael
Morales Is c:haIIengIns
CoDfomla's Injectfon protocol,
wfIlch Is IISed In many states
STAFlT THE SALINE

An rv Is Inser1Bd forthe saline
clIlp thlItwiD deUver,ldeal1y
wI1hIn 5 to 10 min., the lethal
thJ'eeocInrgcondl!llllllon
QUIET THE MIND

5 lP8msofsodlum

8

...

Demtlbl Pennmllty COnnaJl)SHlIllg

pdsonerunconsclous but

by Richard 0efDcen

mayWll8l' otrtoo IOCin

Florida and California are ~amining the death penalty.
Following the execution of "Tookie" Williams in
California. officials at California's San Quentin Prison
struggled with a court order to execute death row inmate
Michael Morales "humanely." The event was scheduled
for late February 2006.
TheY hired two anesthesiologists, but when the
doctors realized they may do more than merely watch.
both cited ethical concerns to refuse.

I

ttIIcpentlII renders the

STOP THE Bfl[,HHING

SOccofpancuranlum
bnlmlde paralyzes theenUro
body but WDUld maakslS\S
oflnmat8 pain

•

STOP TIlE HEART

50 cc at potassium chIoItdu
halts the heart's electIIcal
&/SISIsbutmaycause
seartng pain before death

Florida Prison.Legal Perspectives

.'

LOREN.

.

D. RHOTON

POSTCONVICTION ATTORNEY

•
•
•
•
•
•

I

Direct Appeals
Belated Appeals
Rule 3.850 Motions
Sentence Corrections
NewTrials
Federal Habeas Corpu.'Petitions

; :)

The hiring of a lawyer Is an Important decision that should not be baSedlOlely cSn adv8~.
Before you decide, ask us to send you free written information about our quaUficatlon~.

BUY THE BOOK - ON SALE NOW
POSTCONYICTION RELIEF FOR THE FLORIDA PRISONER

A Comoilation ofSelected Postconvictlon Corner Articles
A collection of Loren Rhoton's Postconvictlon Corner articles is now available in one
convenient book. These articles are an invaluable tool for Florida inmates seeking justice in
their cases. Helpful insights, case citations. and references to the relevant rules ofprocedure
are provided. This book is a must for those pursuing postconvi~tion relief.

To order, send 520.00 in the for.m of a money order, cashier's cheek or Inmate
bank check (no stamps, cash or personal checks please) to the address above, or
order online at www.rbotonpostconviction~com
•.
• ,1-

.p "

...

19

,Florida Prison Legal Penpeetives
~

by Loren Rho~ Eaq.

POST CONVICTION
CORNER

Florida Rule of Criminal Procedure 3.850 generally imposes a two-year period of
limitations fOl:filing a motion to collaterally attack a judgment and/or sentence. Rule 3.850
provides three exceptions to the two-year period oflimitations: (l) newly discovered evidencethe facts on which the claim is predicated were unknown to the movant or the movant's attorney'
and could not have been ascertained by the exerCise of due diligence; (2) new role of law- the
fundamental constitutional right asserted was not established within the two year period of
limitations and has been held to apply retroactively; or, (3) ineffectiveness ofpostconviction ' ,
counsel- the defendant retained counsel to timely 'file a 3.850 motion and counsel, through "
neglect, 'failed to file the motion. This artiCle will address the issue of newly discovered evidence
and how to raise sucli an issue in a 3.850 motion.
'
In order to be considered newly discovered evidence for the purpose ofsetting aside a
conviction, after trial, the evidence must have been unknown by the trial court and by the
defendant or his counsel attime oftri8I. Jones v. State, 709 So.2d 512 (Fla. 1998). Furthermore,
it must appear that the defendant and his counsel could not have known of the evidence by use of'
due diligence. Id. Finally, the evidence must be ofsuch nature that it would probably produ~ ,
acquittal on retrial. hL.
" ,
In the' context ofa guilty or nolo contendere plea, though, the standard for withdrawaf ofa
plea due to newly 'discovered evidence is slightly different. The first to elements ofJones still
must be proven (i.e., the evidence is newly discovered Jm!i it could not have been discovered
.,
thrOugh the exercise ofdue diligence). But, in the plea context a movant must prove that the
withdrawal ofthe plea is necessSry to correct a manifest injustice. Bradford v. State, 869 So.2d.
28 (Fla. 2nd DCA 2004); Scottv. State, 629 So.2d 888 (Fla. 4th DCA 1993). Said standard is .
more appropriate for a case where ~ere is a plea since ~ is "virtually impossible to apply
because there was no trial and no evidence produced. Any detenninations as to the nature and
admissibility ofthe evidence would be specul~~ve." Bradford at 29.
'

Newly discovered evidence issues wluch'may gamer postconviction relief include, but are; .,
not limited to:
'
'.
-Eyewitnes.~ te.s~i~~n>.' ~pich.~s, e~culpa~JYap4 could not have been discovefed
through the Use ofdue Qlligence at the time oftrial. Clugston v. State, 765 So.2d
816 (Fla. 4th DCA, 2000).

. -A key State witness has recanted his or her testimony. Stephens v. State, 829
So.2d 945 (Fla. 1", DCA, 2002).
10

I

-The State suppressed exculpatory evidence or matters which could be used to impeach
.'

Florida Prison Legal Penpectives
prosecution witnesses. Taylor v. State. 848 So.2d 410 (Fla. 1It DCA 2003).
-A codefendant received a life sentence after the defendant received a death sentence for
. the same offense. Scott v. Dugger, 604 So.2d 465 (Fla. 1992) ["[I]n a death case
involving equally culpable codefendants the death sentence ofone codefendant is subject
to collateral review under rule 3.850 when another codefendant subsequently receives a
life sentence."].
-A codefendant admits to refusing to testify on defendant's behalfand refusing to give
exculpatory testimony for defendant because ofcoercion from the State. Roundtree
v. State, 884 So.2d 322 (Fla. 2d DCA 2004).
Whether the conviction being attacked is the result ofa jury trial or a guilty/nolo
contendere plea, the burden on the pOstconviction movant is substantial. Firstly, the "new
evidence" mUst be something that truly could not have been discovered through the use ofdue
diligence at the time ofthe original proceedings. Therefore, ifsomething could have easily been
discovered by the movant and/or his counsel at the time ofthe trial/plea, the due diligence
requirement will preclude the movant from raising the issue as newly discovered evidence. If
anything, such a situation would more properly be raised as an ineffectiveness ofcounsel claim
and, thus, be subj~t to the two year period of limitations imposed by Rule 3.850.
Additionally; it must be shown the newly discovered evidence would have had a
sUbstantial.impact on the likely outcome ofthe case. In the trial context, the movant must show
that the new evidence would probably cause an acquittal at a new trial. This is a weighty burden
which requires evidence that would strongly refute at least one 9fthe elements ofthe offense
charged at triai. Speculative evidence or witnesses with dubious credibility likely will not sustain
the burden.
.

I· II

Florida Prison Legal Perspectives

The following are summaries ofrecent state andfederal cases that may be usefult~ or have asignificant impact on Florida prisoners.
Readers should always readthe full opinion as published in the Florida Law WeelcJy (Fla. L. WeelcJy): Florida Law Weekly Federal
(Flo. L. Weekly Federal),' Southern Rep,orter 2d '(So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter ld (F.ld); or the
Federal Supplement 2d (F.Supp. 2d). since these summaries arefor general information only.

FLORIDA SUPREME COURT
State v. Frierson. 3] Fla.L.Weekly
S81 (Fla. 2/9/06)
The Florida Supreme Court
reviewed a decision in Frierson v.
Slale. 85] So.2d 293 (Fla. 4dl DCA
2003). to resolve a conflict with the
decision in Slale v. FOUSI, 262 So.2d
686 (Fla. 3d DCA ] 972).
The background in Anthony
Frierson's case was that he had been
charged with possession of a firearm
by a convicted felon. The charge
stemmed from a search 'of his vehicle
subsequent to an illegal traffic stop.
However, after effecting the illegal
stop. it was learned by the traffic
officer that there was an outstanding
warrant for Frierson in another
proceeding. Thus. the officer had
searched the vehicle incident to the
arrest for the outstanding warrant It
was later found that Frierson was not
the individual the outstanding
warrant was for.
Consequently,
. Frierson
sought suppression of the. firearm
during his trial, arguing that the
found firearm should be suppressed
because the traffic stop was unlawful
and the warrant which provided basis
for his arrest was wrongfully issued.
The trial court agreed that the traffic
stop was unlawful, however, the trial
judge denied the motion to suppress
by relying upon Arizona v. Evans,·
5]4 U.S. ] (1995), and Uniled Slales
v. Leon, 468 U.S. 897 (l984). ·It was
opined that the officer justifiably
relied upon the arrest warrant to
search the vehicle, although it was
later determined the arrest warrant
had been erroneously issued. The
trial court further opined that the fact
Frierson was illegally stopped by the
12.

I

.

arresting officer. it did not require
. suppression of the firearm because
the firearm was found in a search
which w~. incident to the arrest
based upon the outstanding warrant
and was sufficiently attenuated from
the illegal stop. Thus, Frierson pled
nolo contendere to the felony fireann
possession offense, reserving his
right to appeal the trial court's denial
ofhis motion to suppress.
On ·appe8l, the Fourth
District agreed with the trial court in
its decision except, based on prior
precedent, it was concluded that
because the traffic stop was without
reasonable cause, the firearm seized
in the search incident to the arrest on
the outstanding warrant was subject
to suppression as fruit of the
poison~us tree, notwithstanding the
outstanding warrant As a result of
this opinion, the Fourth District
.certified conflict with the Third
District's decision in Fousl.
.
In Fousl. the Third District
reversed a trial court's decision to
suppress, certain evidence that was
found after an arrest, it had held in
relevant part that "the reasonableness
of the search after arrest was not
affected by the fact that the original
stopping of Foust may have been
without probable cause."
On review, the Florida
Supreme Court held that the question
of whether evidence, seized in a
search incident to an arrest based on
an outstanding warrant (although the
warrant· mistakenly Identified the
defendant-Frierson, the arresting
officer was not aware of that
mistake) discovered following an
illegal traffic stop. is to be
suppressed should be answered by
analyzing the three factors set forth

in Brown v. OIinois. 422 U.S. 590
. (1975). for application of the' rule of
Wong Sunv. Uniled Slales, 37] U.S.
471 (1963).
In Frierson's case, the
Florida Supreme Court foundthat the
brief amount of time ~t elapsed
between the illegal stop (which was a
stoP that was not pretextual or bad
faith) and the arrest of Frierson
weigtw against finding .the search
attenuated, that the outstanding arrest
warrant
was
an
intervening
circumstance that weighs in favor of
the fireann found in the search
incident to the outstanding arrest
warrant
. being
sufficiently
distinguishable from the illegal stop
to be purged of ~ primary taint of
the illegal stoP,and that the purpose
and flagrancy of the misconduct in
illegally stopping Frierson· was not
such that the' taint of the illegal stop
should require that the evidence
seized inCident to the outstanding
warrant ~ suppressed.
. Ac:cordingIy, the Fourth
District's decision was quashed· and
it was direc:ted that Frierson's
conviction and sentence of the trial
court be reinstated.
Scipio v. Stale, 31 Fla.L.Weekly
SI14 (Fia. 2116/06)
On review in the Florida
Supreme Court, the decision in
Stephen J. Scipio's ease on appeal
{See: Scipio v. Stale, 867 So.2d 427
(Fia. 56 DCA 2004» was foUri,fto be
in conflict with the harmless error
analysis foun~ in Slate v. Schopp,
653 So.2d' 1016 (Fia. 1995).
However. it was, found that the
reason the Fifth District's decision
conflicted with the Schopp case was
due to conflicting language that was

Florida Prison Legal Perspectives
discovered within the Schopp
stricter per se rule of reversal. It
only if the appellate court can
decision. Consequently, the Florida . placed the burden on the S~te and
determine beyond a reasonable doubt
emphasized that a finding of
that the defense was not procedurally
Supreme Court was. prompted to
clarify what it had held in Schopp.
prejudiced by the discovery violation
hannleSs error should be "the
In Scipio, the Fifth District
exception rather than the rule."
can the error be considered harmless.
had decided there was a discovery
Schopp, Id., at 1023. The decision
See: Schopp, Id., at 1021.
violation committed by the State. In
further noted that "the vase majority
To the extent. of finding the
relevant part, Scipio's counsel had
of cases" will not have a r:ecord
discovery violation in Scipio's case
planned to use testimony· made
sufficient to support a finding of
hanDless, the Fifth District's decision
during a deposition by a State's
harmless. error and that there is a
was. quashed and the case was
witness to support Scipio's defense
"high probability" that any given
remanded for further proc:eedinp
consistent with . , Florida Supreme
theory that Scipio did not commit the
error will be found harmful. Schopp,
offense he was charged with.
Id., at 1021.
Court's decision.
However, after the Witness reviewed .
However, included among
relevant evidence at the prosecutor's·
all the language in Schopp affirming
DISTRICT
COURT
OF
insistence. the witness recanted from the rule of procedural prejudice,
APPEALS
the testimony he gave in the
there was one statement found that
deposition. This infonnation was not
.appeared inconsistent with that rule:
State v. Tanner, 30 FJa.L.Weekly
disc,losed by the State prior to the
"This analysis recognizes the
D2785 (pIa. 2d DCA 12/9/05)
commencement of Scipio's trial.
procedural prejudice inherent in
Amanda Vernell Tanner, in
Thus, a discovery violation had been
discovery violations. It also takes
her case, was a passenger in a vehicle
committed.
into account the fact that errors that
that was legally stopped by law
Although the Fifth District
reasonably could affect trial
enforcement and, due to a 'dog ~ff
had properly found that there was a
or.. strategy
are
preparation
alert,' the vehicle was searched.
'prejudicial,, and therefore harmful .
discovery violation. due to the
What the dog had alerted to
language it found in Schopp it opined
for appellate purposes, only when a
inside the vehicle was Ms. Tanner's
that the discovery violation was not
change in trial tactics reasonably
purse that she was commanded to
sufficiently harmful to require
could have benefited the defendant
leave in the vehicle while the dog did
reversal.
by resulting in a favorable verdict."
its sniffing. Illegal drugs were found
On . review, the· Florida
The emphasized statement
inside the purse, and Ms..Tanner was
Supreme Court. explained it was
above was what the Fifth District
arrested.
focused on .in concluding the
important to note that prior to the
At trial, Ms. Tanner sought
Schopp decision, a trial court's
discovery violation in Scipio's case
to suppress the found illegal drugs,
failure to conduct an inquiry as to
was harmless error. That language
arguing that she had done nothi.ng to
discovery
violations
(See:
was· held by the Florida Supreme
warrant her individual detention, nor
JUchardson v. State, 246 So.2d 771
Court to be inconsistent with the
was there an independent reasonable
(pIa. 1971) was considered to
overall formulated extensive analysis
suspicion that her purse contained
constitute such substantial harm as to
intended in the Schopp decision.
contraband. The trial court agreed
mandate automatic reversal without
In clarifying the Schopp
and granted the dispositive motion to
any consideration of hannless error.
decision, it was .held in the Scipio
.suppress evidence.
See: Smith v. State, 500 So.2d 125,
case that the harmless error standard
It was also pointed out and
126 (pIa. 1986). However, while it
does not focus on whether. the
concluded by the trial court, relying
was decided in Schopp that it was
discovery violation would
made
on Matheson v. State, 870 So.2d 8
possible that a Richardson violation
a differeJice in the verdict. Such an
(pIa. 2d DCA 2003), that insufficient
could be harmless,· the strict
analysis would make the standard for
records of the dog's field
procedural prejudice standard set out
procedural prejudice identical to
performance and its lack of training
in Smith as the standard prejudice or
substantive prejudice. Consequent to
to disregard residual drug odors had
hann.
. .
its rec;ediQ8. ,~m . tht? .. incC)nsistent
rendered invalid the authorities'
In Schopp, it was specifically
language found in· SchoPP.· the
search of the interior of the vehicle to
explained and repeatedly reaffirmed
Florida Supreme Court reafTmned its
begin with. The state appealed the
of the Florida Supreme Court's
statements that the inquiry is whether
trial court's decisions.
adherence to. the procedural
there is a reasonable possibility that
On appeal, the state argued
prejudice standard, not substantive
the discovery violation "materially
that it was error for the trial court to
prejudice. Thus, it had formulated a
hindered the defendant's trial
grant Ms. Tanner's suppression
strict procedural standard for proving preparation or strategy." ·See: motion. It was further argued that it
harmless error in place of an even
Schopp, Id., at 1020. Under Schopp,
was error for the trial court, in

have

•

I 13
.~.

.Florida Prison Legal Perspectives
grimting the suppression, to base it's
decision on matters relating to the
dog's field perfonnance and training.
Thus, the state urged the appellate
court to recede from the decision in
Matheson.
The
appellate
court
disagreed with the sta~'s contentions
that the trial court was in error
snuJting the motion to suppress. It
opined that competent, subs~
evidence supported the lower court's
finding
that
the
authorities
unlawfully seized Ms. Tanner's
purse. Also, the appellate court
declined the state's invitation to
recede from the Matheson decision.
The granting of Ms.
Tanner's motion to suppress was
affirmed.

Hillmon v. StDle, 30 FIa.L.Weekly
, 02839 (Fia. Sda DCA 1211610S)
Paul Franklin Hillman was
convicted and sentenced for two
counts of burglary and one Count of
agravated assault with a firearm,
subsequent to a jury trial.
On appeal, Hillman argued
that the trial court committed
fundamental .error when it instructed
the jury that it could -find the
defendant guilty of burglary if it
found that the defendant had entered
the home with the intent to commit a
"burglary" therein. _
.
The trial court had instructed
the jury in a circular fashion on the
elements of burglary. Consequently,
the appellate court pointed out that it
and other district courts have held
that it is circular to define burglary
by indicating the need to show intent
to commit a burglary rather than
intent to commit _an underlying
offense. See: Stone v. State, 899
So.2d 421, .422 (Fla SlA DCA 2OOS);
llnIce v. StQ/e, 879 So.2d 686, 687
(pIa. 4* DCA 2004). In Stone, such
an error was held to be fundamental.
As a result, Hillman's
burglary convictions were reversed
and remanded for a new trial.\

14

Wencel v. State,_ 31 Fla.L.Weekly
039 (pIa. 4lA DCA 1212110S)
Timothy Wencel's case
involved an issue of whether a lower
court was confined only to a
sentencing record and cannot
consider documentation from the
Parole
Commission
when
determining the illegality of a
sentence pursUant to Rule 3.800(a).
In 1996 Wencel had been
temporarily
confined
while
revocation of his conttol release
supervision' was being considered.
Although it was decided that Wencel
violated
conditions
of
his
supervision, the Parole Commission
did not revoke the supervision.
Instead, the Parole Commission
released Wencel and discharged him
from supervision.
Apparently, Wencel was
later arrested and convicted of a new
crime, within' 3 years of his release
from temporary custody and
discharge from the above mentioned
supervision.
In determining its
designating Wencel a Prison
Releasee Reoffender (PRR), the
lower court used that date of his
release from temporary custody and
sentenced Wencel with a PRR
sentence.
Consequently, Wencel
filed a Rule 3.800(a) motion arguing
that the PRR sentence was illegal
because the court could not use the
date of his release from temporary
custody
and discharge from
supervision. This. because such is
not the equivalent of "releas[e] from
a correctional facility•..following
incarceration" as termed under the
PRR statute.
Wencel relied on
Brinson v. State, 8SISo.2d 815 (Fla.
2d DCA 2003) (applying the rule of
lenity and concluding that "release"
as used in the PRR statute means
actual release from a state prison
sentence, not release from temporary
confinement that happens to be in a
state prison). Wencel further filed
the Parole Commission's order that
showed supervision had not been
revoked to support his claim.
The lower court denied the
Rule 3.8oo(a) motion opining that

•

Wencel's claim could not be raised
under Rule 3.800(a) because the
claim was not discemable from the
court's sentencing records. Thus. it
was opined that an evidentiary
hearing would have to be held before
the "extra-record evidence" (the
Parole Commission's order) could be
considered.
On appeal, Wencel argued
that the lower court should have
taken judicial notice of the Parole
Commission's order. However. the
lower court believed that it could not
take judicial notice ofsuch order.
The appellate court opined
,that contrary to the lower court's
belief, it could have taken judicial
notice of the Parole Commission's
order because it was an official
action by an administrative arm of
the executive branch. It was fiJrther
opined that .a lower court is not!
limited strictly to the record before
the - court "at sentencing" when
addressing a Rule 3.800(a) motion.
See: e.g.. Nelson Y. State, 760 So.2d
240 (Fla. 4* DCA 2000) (holding
that ina Rule 3.800(a) claim, when
considering movant's request for
additional jan' credit: the trial court
should examine not only the court
file, but jail records).
Accordingly, it was opined
that the lower court in Wencel's case
should have taken judicial notice of
the Parole Commission's order and
addressed the merits of the Rule
3.800(a) motion.
Consequently.
Wencel's case was reversed and
remanded for further proceedings.

King v. State, 31 FIa.L.Weetdy 0131
(Fla 2d DCA 12130/05)
In Jerry B.' King's apPeal of
being denied in his effort to tetrieve
(free of charge) certified copies of
documents needed to, file an
-application for clemency, the
appellate court opined that -he was
entitled to certified copies of the
information, judgment, and sentence
documents. However. contrary to
King's contentions, he was found not
to be entitled to copies of the plea
a~
fonn,
sentencing

Florida Prison Legal Perspeetives

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IS

_Florida Prison Legal Penpectives
guidelines scoresheet fonn, or the
sentencing
transcripts
without

see:

charge.
Marshall v. State, 759
Se.2d 111 (pIa. 2d DCA 2000).
King's case was reversed
and remanded with instructions for
the lower court to order the clerk -of
tho court to supply King, without
charge and without further delay, the
documents described in the appellate
court's decision.

Peters v. State, 31 -Fla.L.Weekly
0267 (pIa. lit DCA 1/24/06)
Robert Sheldon Peters' case
invoMld a trial court's admission of
an iDdependent lab report at his
CClIIUDwUty
control
revocation
hearing without the custodian of the
lab's records present to testify. The
report was admitted as a Business
Record pursuant to 9O.k03(6) Florida
Evidence Code.
- Peters was chliiged I with
vioJating his community control· by
failing drug· tests. When the lower
court admitted the lab report
flndinp, Peters' defense counsel
objected to its admission. It was
araued that thO Written report
viOlated Peters' ri~ to confrontation
as set forth in Crawford v.
WQ.fhlngton, 541 U.S. 36 (2004).
The argument of the defense
was rejected in the appellate court,
where it opined that Crawford does
not apply in community supervision
revocation proceedinp. To support
the opinion it cited Morrissey v.
Brewer, 408 U.S. 411, 489 (1972)
(where it was held that the revocation
of parole is not part of a criminal
prosecution, and thus the full
panOply of rights due a defendant is
such proceedinp does not apply to
parole revocations).
The appellafe court in Peters'
Case also pointed to a recently
decided case in the Washington
Supreme
Court,
Slote
v.
AbdRahmaan, III P.3d 1157 (Wash.
2005), that was faced with the
question of whether the dictates of
Crawford were applicable in a
commui1ity supervision revocation
proceeding. The AbdRahmaan court

I' I

postconviction record (see, Fla.
concluded that Crawford did not
apply in such cases and the appellate - Rules of Appellate Procedure
9.141(bX2XA» shows conclusively
court in Peters' case quoted a quite
that the appellant is entitled to no
lengthy reasoning for its conclusion.
relief.
See:
Fla.R.Crim.P.
It was also noted that in the
AbdRahmaan' case, the Washington
9. 141(bX2)(D).
. On appeal it 'Vas noted that
court pointed to an overwhelming
the record in Hampton' case did not
majority of federal decisions that
conclusi~ly refute his claims that
have found the Crawford rationale to
testable material exists. In contrast,
be inapplicable in commuriity
. Hampton had attached to his motion
supervision revocation proceedings.
a copy of a memorandum written by
The appellate court in Peters;
a Dr. Arthur F. Schiff ofth~ office of
case, based on its findings, affirmecl
the Dade County Medical Examiner
the lower court's admission pf the
on Mayt 4, 1973. The state had also
lab report. However, it did opine
_supplemented the recOrd with the
that in thQSe cases where there is a
deposition of Dr. Schiff taken in
true dispute concerning the nature of
Hampton's case on November 28,
the tested substance involved and the
defense can show some lack of
1973.
According
to
those
trustworthiness in the lab report, then
the report would be inadmissible. - documents Dr. Schiff had taken
DNA evidence from the victim and,
See: Section 9O.803(6)(a), Florida
Hampton. Furthermore, it shows that'
Statutes.
that evidence was given over to the
Since it was found that
investigating officer to take to the
Peters' issue had not been previously
Crime Lab where blood typing
decided in Florida, the appellate
analysis was to be performed.
court certified a question of great
In response to the appellate
public importance to the Florida
court's findinp, .the state said, "The
"Does The
Supreme Court,
Clerk of. Courts does not have this
'Testimonial Hearsay' Rule Set Forth
item of evidence
in
their
In Crawford v. WlUhhtgton~ 541 U.S.
possession.... In fact, it was never
36 (2004). Apply In Community
Control
And/Or
Probation
admitted in trial. Likewise, the
investigating police agency does not
Revocation ~?"
have this item of evidence in their
possession...
Hampton v. State, 31 Fla.L.Weekly
D284 (pia. 3d DCA 1125/06)
The appellate court opined
Jolmnie Lee Hampton had
however, that the state's response did
- filed a Rule 3.853 motion for
not refute Hampton's claim. The
deposition
that
th8
state
postconviction DNA testing in the
lower court regarding his 1973
supplemented the record with
conviction of .sexual battery. His
showed Dr. Schiff indicated he gave
sentence was for seventy-five years
the evideru:e material to the
investigating officer to deliver to the
in prison.
~ _
Although the postconVlction
Crime Lab. It was noted by the
court found that Hampton's identity
appellate court that the state showed
was a genuinely disputed fact at his
no record that it bad even made an
trial, it denied the motion stating in
inquiry at that lab regarding the
part that "(p]~ical evidence that
evidence.
•
may contain DNA does not exist.....
The state also argued that
Thus, - denying the motion without
DNA testing could not exonerate
Hampton because there were
conducting an evidentiary hearing.
multiple assailants. The victim had
Hampton appealed the denial.
stated that she was assaulted by 'three
Where there is a summary
. denial of a Rule 3.853 motion, there
males, each of whom had forcible
must be it reversal unless the
intercourse with her. It was argued

Florida Prison Legal Penpectives
Statues. which doeS not contain a
by the state that if DNA testing
lien provision.
identified a single subject, that result
The Appellee. James v.
would not be enough to exclude
Crosby, in opposition to Cox's
Hamptoll ascne of the perpetrators.
'It was noted howevet, by the
contention. argued that the holding in
Schmidt should be limited to its facts.
appellate C9Urt in Dr. Schiff's
where the complaining party has
depoSition. he acknowledged the
challenged the forfeiture of gain-time
possibility that material from all
that has already been received. not
three of the assailants could be
challenges to. gain-time that has
c:cmtained within the sample that, he
.
recowred from 'the victim. 'ThUs. . neVer been received.
The
appellate
court
did not
reasoning f:bat if the DNA contains
accept Crosby's argument in light of
three assailants and Hampton is not
.the reasoning in the Schmidt court.
one of those three identified by DNA
There, the Florida Supreme Court
then such evidence could exonerate
said "it is apparent that an action
Hampton.
.
The lower court's denial, of affecting gain-time does in fact affect
the computation of a criminal
~tOn'smotion for DNA .testing
Wu reversed and the cause was . defendant's sentence, because the
length of time the inmate will
renianded of further proceedings
actually spend in prison is directly
consistent with the appellate court's
affected." See: Schmidt. [d. at 366.
1incIinf,1.
Cox's claim. if success~
CtJ% v.,' Crosby, 31 FIa.L.Weekly
would affect his time in prison. i.e.,
the time would be significantly
0310 (Fia. 111 DCA 1/26106)
.
Leo 1. Cox's case presented
reduced. Therefore. the appellate
court opined that I was constrained to
an issue of whether a lien for filing
conclude that the proceeding in
fees should be placed against a
Cox's case was a "collateral
prisoner's trUst aCCQunt when the
filing' Concerns complaints of gaincriminal" one as defined in Schmidt.
Because of the dissent's
time not reCeived. but would be
receive, 'i/ 'successful. versus
concerns in this case, the appellate
court certified a question to the.
complaints of gain-time received. but
Florida Supreme Court that it
has been forfeited.
believed to be, of great public
In the lower court. Cox had
importance: "Does the holding in
tiled a petition that Irgued about the
constitUtionality of a statute that
Schmidt extend to all actions.
precluded him from receiving gainregardless of their nature. in which. if
time. If success~ he would have
successful. the complaining party's.
been entitled to more than ti~years ' claim would directly affect his or her
of additional gain-time. The lower
time in prison. so to preclude
court issued' an order which found
imposition of a lien of the inmate's
Cox to be ,indigent in accordance
trust account to recover applicaije
filing fees?"
'
with Section 57.085. Florida
Statutes. and imposed a lien on his
Cox's review was 8ranted to
prison, trUst account ~ recover the
the extent· of the imposed lien.
applicable filing fees. Cox moved
reversing the lower court~s order.
for a revi~ o~ that Order pursuant ~
Florida Rule 'of Appellate Procedure
v. State. 31 FIa.L.Weekly
9.430(a) and argued that his circuit
D359 (Fla. 4* DCA 211106)
court petition was a "collateral
The Fourth District Court of
criminal" proceeding as described, in
Appeal in this case withdrew its
Schmidt v. Crusoe. 87,8 Sc.2d 361
original opinion at Canete v. Stat~
(Fla. 2003). He contended that his
30 FIa.L.WeekIy D1387 (Fia. 4
indi~'should have been resolved
DCA 611105). and substituted it with
undei .' section 57.081. Florida

Caete

its opinion on a rehearing en bane
requested and granted from the State.

In OrllllldQCanete's case,
the appellate court has created quite. a ,
twist to its own prior opinion it gave
in Roberts v. State. 874 So.2d 1225
(Fla. 4* DCA 20041 which the
majority defined the twist 'in itS
Canele
opinion
to
be,
"dmtinguishable" from Roberts.
.
In Roberts. tho appeUatO .
court opined that a MIranda wamiiII
is inadequate when it fails to inform
one of his right to have an attorney
".,..ttnn;nn
,.• .
present "d"..;"....
UlUIfj . .........oeAs in 'Roberts, Canete bad
sought to suppress statements made
to authorities because the MIra1idR'
warning given failed to infinm of
right to have attomeypresent during
questioning.
Canete's. mOtion to
suppress was denied and he was
convicted and sentenced to, hiS
charges.
On appeal. the appeUatO
court noted the warning. in relevant
part. that was given to Canete: ."If
you decide to answer the qUestions
now. without an attorney present;
you still have the right not to answer
my questions at any time until you"
can speak with an attorney." It was'
opined that this part of ,the wamina
given by the authorities did cause
Canete to "infer" that he had Ii right
to have an attorney present during
the questioning.
"
The appellate court reasoned
that Canete's case was distinguished.
from Roberts becaUse in Robem the.
warning. in relevant part. that was
giVen stated. "Yau have the righuo
talk with a lawyer and have a lawyer .
present before any questioning." did
not infonn or have any "~
that there was a right to have .'an
attorney present during questioning.
Accordingly. iii that the
appellate
court
. distinguished
Canete's case as distinguishable frOm
the
Roberts' case.
C..-'i
convictions and sentencing were
affirmed.

the.

[Note: To echo a piece of JU;dge
Stevenson's very well written

I 17

FIQrida Prison Legal Perspectives
dissenting oplDJon: The additional
warning as quoted above in relevant
part, which the majority concluded
that Canete could "readily infer" that
he had a right to have an attorney
present during questioning, which
the majority did not explain why,
compared with the opinion given in
Roberts, it is not seen where one
leads the other. If the warnings in
Roberts were insufficient to infonn a
person of ordinary intelligence and
common understanding of the right
to have an attorney present "during"
questioning, then the warnings given
to Canete were equally inadequate as
welt.] as.

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Florida Prison Legal Perspectives

Parole Commission
Avoids the Ax, Once
Again
by Bob Posey

Program Policy Analysis and Government Accountability), an
office of the Legislature that performs audits, David argued that
abolishing the Commission in favor of unpaid volunteer parole
panels would cost up to $3.2 million more annually than the
three full-time commissioners and their staff, but Rep. Barreiro
said he expected the move would save money in the .long run.
Rep. Joe Negron contended that the Commission isn't needed
anymore, because the state no longer has parole. David,.to no
avail, countered that there are still thousands of parole-eligib~e
prisoners, because they were sentenced before the law was
changed and that they represent only a small· pan of the.·
Commission's work.
. Shortly after that debate, Florida Prisoner's Legal Aid
Organization contacted all state legislators informing th~m ~
the OPPAGA report. No. 06-15, relied on by David. appears to
have used erroneous data supplied by the Parole Commission
and faulty analysis to conclude that the Commission is doing a
good job and that it would cost more to get rid of the existing
Commission. FPLAO concluded the report is biased and
apparently generated for use by legislators opposed to getting
rid of the Commission. That effort failed.
On May 2 the House and Senate budget conference .
committee voted and agreed to keep the existing Parole
Commission for another year. H.B. 5017 was amended again to
delete the provisions concerning the Commission, then passed
by both chambers and sent to the governor. _

Several lawmakers in the Florida House of Representatives
seem to be determine(J to pass a law abolis~ing the Florida
Parole Commission, but can't quite bring it off. For the second
year in a row n,?w propo~ed.legishition to get rid of the eXi~ing
Parole Commission, and replace it with volunteerregJOnal
parole boards, failed to make it all. the way through t!te
legislative process to become law.' The losers, once agatn:
Florida's aging parole-eligible prisoners and state taxpayers.
In the last issue of FPLP it was reported that FPLP staff had
been informed that the legislative proposal from the 2005
session of the state Legislature to abolish the existing Parole
Commission, and which had failed to pass, would not be
reintroduced this year. (See, FPLP. Vol. 12,lss. I, pg. 18.) That
information was given to FPLP staff by a top aide to Rep. Mitch
Needelman (R-Melboume), the law maker who introduced the
51U'Prise bi1l last year to completely revamp the parole process.
That information, for whatever reason, was wrong.
Half way through this year's regular legislative session
(which started March 6 and ended May 5), just like last year, a
surprise bill was introduced in the House to abolish the Parole
Commission and replace it with regional volunteer parole
FPLAO Parole Project
boards and tum the Commission's clemency investigation duties
over to the office of the governor. However, unlike last year's
Will Continue
similar bill (H.B. 1899), which only concerned the Parole
Commission, this year's bil1 (H.B. 5017) contained provisions
Your Help Is Needed
concerning the repeal of defunct statutes related to the dissolved
Florida Corrections Commission, FDOC probation and
The Legislature again failed to abolish the Parole
restitution centers, and pretrial intervention centers (boot
Commission this year. the FPLAO Parole Project. started
camps). H.B. 5017 was filed on March 31, 2006, by the House
Fiscal Council and Rep. Gus Barreiro (R-Miami). A week later,
in 2003 to accomplish that goal. will continue. The
on Apr. 6, the House voted on H.B. 5017 and passed it by a vote
Commission is facing several very serious lawsuits filed
of 85 go 30 and sent it to the Senate (generally, bills must be
by citizens that FPLAO is assisting with. More suits will
approved by both the House and Senate before they can become
be filed in coming months that are going to be even more
law).
.
serious. These suits are designed so that if even one is
On Apr. 19 the Senate passed an amended version of H.B.
successful, it is going to result in major changes within the
5017 by a vote of39 to 0, which, in esSence was nothing more
Commission of benefit to those dependant on parole for
than a "shell" bill that in effect challenged everything in H.B.
their freedom. If more than one is successful, as we
5017, \Jlcluding the provisions concerning abolishment of the
believe they will be. it will rock the core of the
existing Parole Commission. (See Journal of the House ~f
Commission and force its abolishment next legislative
Representatives, Apr. 19, 2006, pg. 512.) The Senate sent Its
"amended" version back to the House for approval or
session.
appointment of a conference committee to work out differences
However. YOUR help is needed, your financial support
between the House and Senate. The House refused to concur
for filing fees. litigation costs. report preparation for
with the amendment (of course) and a conference committee
legislators. mailings. supplies. etc. If You want positive
was appointed on that same day.
.
changes.in the Florida parole process. make a donati.o~ to
Concurrent with the movement ofH.B. 5017 through the two
the FPLAO Parole Project now. Every parole-ehgtble
legislative thambers was the general· budget appropriations bill
prisoner is asked to donate a measly $5. If You do that.
tifor the entire state. The House budget bill, in line with H.B.
5017, would not have funded the Parole Commission this • FPLAO will have a war chest of $25,000 (approx. 5,100
parole-eligible prisoners left) and we will change the
coming year, while the Senate's bill would have provided them
system. Spread the word. Send donations to: Florida
funding.
Parole Commission Chairman Monica David appeared
Prisoners' Legal Aid Org..Inc.. P.O. Box 151 I,
before the House Fiscal Council to defend the Commission.
Christmas. FL 32709.•
Relying on a report issued in Feb. by OPPAGA (Office of

19

Florida Prison Legal Penpectives

BiUIntroduced in Congress'
That Would Lower Prison
Phone Rates
A bill that was introduced In December "OS to Congress will,
if it becomes law, result in lower interstate phone rates charged
to prisoners' family members and friends. The bill, H.R. 4466,
~ filed by Rep. Bobby Rush (O-IIl) and has been referred to
the House Subcommittee on Telecommunications and the
Internet. The bill, entitled the Family Telephone Connection
Protection Act of2005, has five cosponsors and seeks to amend
the Communications. Act of 1934 to direct the Federal
Communications Commission (FCC) to consider the following
types ofregulation of inmate telephone service: '
. • prescribing a maximum uniform rate-per-mlnute (paid to
telephone service providers);
• prescnbing 'a maximum uniform service connection or
other per-call rate;
• prescnbing variable maximum rates depending on factors
such as carrier costs or the size ofthe correctional facility;
, • requiring providers of inmate telephone service to offer
both collect calling and debit account services;
• prohibit the payment of commissions by such providers to
administrators ofcorrectional facilities; and,
• requiring such administrators to allow more than one
service provider at a facility so, that prisoners have a choice (and
breaking up the monopoly).

~

0

Rep. Rush's bill points out several problems with prisoner
telephone services that would be addressed by his bill.
It is U.S. policy, Rep. Rush contends, to ensure that all
Americans are afforded just and reasonable communication
services, including prisoners' families who pay the rates for
inmate telephone services. It is clear from various studies that
maintaining frequent and meaningful communications between
prisoners and family ~embers Is key to successful social
reintegration of prisoners once released. Such reduces
recidivism, which in turn reduces crime and future cost of
incarceration.
However, Rep. Rush notes, frequent communications
between prisoners and family members is burdened, and in
some cases, prevented, by excessive Inmate telephone service
rates, thus weakening family and community ties that are
necessary for successful reenby and the reduction of crime that
could otherwise result from successful reenby.
Contributing to the problem is the fact that inmate telephone
services in prisons is often limited to collect calling that family
members pay for. Even in the few instances where prisoners'
calls are paid from a debit account at the prisons, families still
typically pay for the calls by making deposits to the debit
accounts. And the prison phone rates being paid by families are
some of the highest rates in the U.S., 'with some interstate perminute charges as high as $1 per-minute, on top of a $3.95
ce or connection fee.
servi.

I

The reason for such excessively high rates, in part, according
to information compiled by Congress and the FCC is lack of
competition between long distance phone service providers,
who typically contract with prison officials for a monopoly to
provide inmate telephone services. With the contract going to
the company promising to pay the highest commission, in some
cases over SO percent ofeach call, to prison systems.
And due to the lack of competition for telephone; services
once the monopolistic contracts are awarded, families of
prisoners, many.in low-income situations, cannot chose the
long..dlstance carrier with the lowest rates and must pay the
excessive rates charged by the carrier having the prison phone
contract.
' ., ,
Rep. Rush's bill would break up the prison phone
monopolies by requiring the FCC to set fair rates and policies
governing phone rates at state and federal prisons.
A new York Times editorial recently commented that H.R.
4466 would not only. help prisoners' families (who often must
choose between talking to a loved one in prison or putting food
on the table), but also help society by increasing the chances of
successful reenby into society by released prisoners who were
able to maintain family relationships while incarcerated.
However, being realistic, that editorial also opined that the bill
will face fierce opposition from phone companies and prison
systems "that have grown accustomed to gouging the poorest
families in the counby to subsidize some prison-related
activities" by paying "usurious rates" that are actually a "hidden
tax on people who already pay for prisons through their taxes."
Beyond that, the Times' editorial concludes, "states should not
be In the business of bleeding low-income families - and
fraying already fragile family ties "'7 to pay for services that the
state itselfis obligated to provide."
' ." .
[Sources; H.R. 4466 (available at www.thomas.!oc.ggv);
York Times, 1/4/06]
.'
,
.

N~

[Note: Be aware that H.R. 4466 would only direct the FCC to
~gulate long-distance inmate telephone rates, and policy's for
mterstate calls. In-state phone rates are usually (as in Florida)
set by state Public Service Commissions. However, such in-state
. rat~ are also usually much higher than what the general public
typically pays. Further, in Aug. 'OS the Criminal Justice Section
of the American Bar Association (ABA) recommended that the
ABA formally adopt the position that state and federal prisons .
should afford prisoners a reasonable opportunity to
communicate with those outside prison and telephone services
at the lowest possible rates. That recommendation was
submitted in the Crim. Justice Section's "Report to the House of
Delegates" (Aug. 2005), and contains much Useful information
on the inmate telephone service topic.].

State Notified That
Feds May Go Aftef
Former FDOC Secretary's
Retirement, Pension Benefits

','

In the most telling indication so far that fornier' Florida
Department of Correction's (FDOC) Secretary James Crosby
may face unspecified criminal charges, on March 8, '06;' U.S.

Florida Prison Legal Perspectives
Attorney Paul Perez notified Florida retirement officials that
retirement and pension benefits for Crosby, and former Regional
Director Allen Clark. may be forfeited because both are targets
of federal criminal investigation.
In the highly unusual letter, that was also sent to Crosby's
and Clark's attorneys, .Perez said that all of their assets,
including state retirement bellefits, may be subject to forfeiture
proceedings and advised both men not to "dissipate, transfer or
remove from the United States nay such asset, fund or account.
Conviction of a job related felony would cause both Crosby and
Clark to lose all retirement benefitS, but neither have yet been
charged with a crime.
•
Crosby, 53, stands to lose a $5,500 monthly pension and
$215,000 in deferred compensation plus whatever he has.
invested in homes in Tallahassee and Starke if convicted of
serious crimes. The exact amount of Clark's retirement fund is
not available as ofthe time ofthis article.
State officials say they have no legal reason to hold up
pension or retirement payments to either man as long as they
haven't been convicted of a crime. But it is widely felt that the
federal letter signals that a more serious investigation is
underway and that charges are coming.
II

(Source: St. Petersburg Times, 3.30.06].

FDOC Reorganization
On April 7, 2006, the Florida Department of Corrections
announced the following changes.
Realignments:
• The FDOC will have only two Assistant Secretaries
instead of five;
• The Assistant Secretary of Institutions and Assistant
Secretary of Community Corrections will report directly to the
Secretary;
• The Directors of Research·~upportServices and of Health
Services (formerly Assistant Secretary positions) will report
directly to the Deputy Secretary, who in tum will report to the
Secretary;
• The Director of Administration (a former Assistant
Secretary position), Director of Legislative Affairs and Director
of Public Affairs will report directly to the Chief of Staff, who
will in tum report to the Secretary.
Promotions or Senior Starr:
• David Pridgen, Region III Director to Deputy Assistant
Secretary of Institutions.
• Gerald Abdul-Wasi, Inspector Genera'l to Region III
Director.
• Valerie Rolle, Deputy Regional Dir., Region III to
Regional Director, Region III.
• Don Monroe, Circuit Admin., Cir. II,. Miami to Deputy
Regional Director, Region III.
Promotions to Warden:
• Steve Kegerreis, Asst. Warden (Okeechobee CI) to
Warden (Martin CI).
• Mary Holcomb, Asst Warden (Tomoka CI) to Warden
(Hernando CI).

• Robert ~Iores, asst. Warden (Liberty <;:9. to Warden
(Century CI).
...
• Robert Joens, Asst. Warden (Desoto Annex) to Warden
(Desoto AMex).
Promotions to Asst. Warden:
• Richard Comerford, Colonel (Liberty CI) to Asst. Warden
(Apalachee CI):
• Thomas Reid, Colonel (Hendry CI) to Asst. Warden
(Charlotte CI).
• Jerry Long, Colonel (Santa Rosa CI) to Asst. Warden
(Franklin CI).
• Jack Howdeshell, Colonel (Charlotte CI) to Asst Warden
(Region IV office).
• Arlene Darby, Class. Supervisor (CFRC) to ASat. Warden
(Tomoka CI).
.• Jeremy Vaughan, Class. Supervisor (Liberty CI) to Asst.
Warden (Liberty CI).
• Willie Brown, Class. Supervisor (Apalachee CI) to Asst.
Warden (Liberty Cl).
• DatleneLumpkin, CSA State Classification to Asst.
Warden (GulfCI).
• Ken Fleming, CSA Central Office to Asst. Warden
(Region I office).
. • Ricky Cloud, Inspector to Asst. Warden (Jefferson CI).
Officer Promotions:
• DOMell Robinson, Major (Liberty CI) to Colonel (Liberty
CI).
• Perry Humphries, Major (Wakulla Cl) to Colonel (Franklin
cl)'

• Monroe Barnes, Captain (Union CI) to Major (Santa Rosa
CI).
Warden Reassignments:
• Bob O'Connor, Desoto CI to Lake CI.
• Melody Flores, Hernando CI to Baker CI.
• Charles Germany, CFRC to calhoun CI.
• Jeffi'ey Wainwright, Calhoun CI to CFRC.
• James Freeman, Century CI to Tomoka CI.
Assi. Warden Reassignments:
• John Riggs, Franklin CI to Baker CI.
• Hank Heatherly, Wakulla CI to Lancaster CI.
• JohMy Reid, Jefferson CI to Region II office.
• Greg Archie, Apalachee CI to Hamilton CI.
• Rob Lowe, Hendry CI to Okeechobee CI.
• Mary Ellen Dayan, Liberty CI to Wakulla CI.
• Shannon Varnes, Region I to GulfCI.
• Jim Tridico, Region IV to Hendry CI.
Colonel Reassignments:
• T.D.Anderson, Columbia CI to Hamilton CI.
• Daniel Brown, F
.
Retirements (Forced or otherwise):
• Lou Vargus. General Counsel
• Thomas Fortner, Warden (Baker CI).
• Joyce Haley, Comm. Corr. Region III Director
jliJictments:
• (To be announced later...).

I

21

Florida Prison Legal Penpectives

.
Ex-Prisoners Sue, Claim Jail
Guards Pu~ Human Waste
In Food
.

.

~~

On March 10: ·2006, fou( former prisoners of the Citrus
County Detention Facility ·filed a federal lawsuit against
Corrections Corporation of America, the private company that
runs the jail, claiming that two fonner jail gu.ards put human
waste in their food and drinks several times dUring a two-month
period in 2004.
The suit, filed by fonner CCDF prisoners Javon Walker,
Jeffi'ey Young, Larry Robbins and Greg Platt, claims ~ey. were
subjected to cruel punishment, torture and battery. whIle ID the
jail's segregation unit when two guards added urine and fecal
matter to their food and drink several times between Nov. I and
Dec. 31, 2004. The suit alleges that the prisoners complained
that the food had a foul odor and didn't taste right, but were
forced to eat it or go hungry. After eating it, they suffered
''vomiting, stomach cramps and nausea," the lawsuit say~. . .
A spokesman for the private company that runs the JaIl saId
company officials took immediate action once they heard about
the incident. The company fired two jail guards, Kevin Hessler
and Alexander Diaz, and a supervisor, Charles Mulligan, who
failed to report the prisoners' complaints t~ the jail warden
sooner. Mulligan said one of the fired guards acknowledged
putting urine in a prisoner's drinking jug.
. .
.
Four other prisoners were expected to JOID the laWSUIt,
including one teenager whose meals were allegedly. laced with
glass. .
.
Corrections Corporation of America, accuse~ of neglIge?t
hiring in the lawsuit, is the sixth-largest correctIons system ID
the U.S. and has about 60,000 prisoners in more than 60
facilities around the country, according to its Web site. The
company runs six other ~i1ities in Florida, i~cluding the J3ay
County Correctional FacIlity, Bay County JaIl and Hernando
County Jail.
[Sources: AP, 31lV06; St. Petersbury Times, 3/15106].

Prison Health Code
Litigation Update
In April 2004 the First District Court of Appeal, in a lengthy,
detailed opinion [See Osterback v. Agwunobi, 873 So.2d 437
(Fla. lit DCA 2004)]: reversed and remanded the tri~1 court's
order; holding that the repeal of § 10D-? was ~e sectl~n o~!he
health code which governed health Issues In FlOrida Jal~,
prisons and mental institutions (Tllis was previously reported ID
FPLP, Vol. 10, Iss. 4). Upon remand, Circuit Judge Paul
Russmussen issued an order declaring the repeal of 100-7 ~
invalid exercise of delegated legislative authority (meaning, ID
effect, that the Dept. of Health had no authority to get rid of,.
repeal, such sections of rules).
..,
..
This seemed to pave t-'e way for the former rules provIsIons
to be ''resurrected'' and once again govern health matters for
incarcerated individuals. That was the case until the Dept of

2.2.

I

Health decided to appeal the order (That too. was previously
reported on in FPLP, Vol. II Iss. S and 6). The basis for the
agency's appeal was three-fold: 1) the trial court lacked subject
matter jurisdiction; 2) the rule repeal's invali~ity was caused ~y
an "inadvertent miscitation" to the wrong statute; and 3) the trial
court failed to accord proper "deference" to ~e agency in
carrying out its delegated powers.
In an April 7, '06, decision that nonsense was soundly
rejected by the appellate court in a Per Curium Affinnance. of
the trial court's order. No opinion was issued on the. merits of
the agency's arguments, but Chief Judge Kahn, in a separate, .
concurring opinion, sternly upbraided the Dept. of Health's
attonl'ey AAG Lucy Schneider, for pursuing the appeal. Judge
Kuhn described the appeal as both "improper" and
''professionally indefensible," and closed by stating, "I do not
ignore the particular exigencies that face attorneys employed by
a state agency. Nevertheless, just as attorneys employed by
powerful individuals and corporations are \-esponsible for their
professional actions, so are government lawyers."
.'
The 13-plus month delay occasioned by that latest (dare we
suggest "frivolous") appeal is currently being redressed. A
mandate in that appeal has not yet issued (as of this writing) and
it could be several months (although efforts are afoot to try and
expedite the case) before action is taken in ~Iation thereto.
Likewise no citation is yet available for thIS latest DCA
opinion. Another update on this potentially important c~e, that
could benefit all prisoners, will appear in the next Issue of
FPLP. Osterback v. Fran~ois, Case No. 1005-1848, Apr. 7,
2006.•

News Briefs
• FDOC interim Secretary James McDonOUgh is continuing to
revamp persoMel. On Apr. 20, 2006, two majors were fired
from their prison jobs at New River Correctional Institution.
Certified letters were sent to Maj. Colin E. Halle and Maj.
Rodney L. Barnett notifYing them that they were being
dismissed from their jobs at the end of that day. No
explanation for the firings were given in the letters, which
were signed by Richard Dugger, regional director of
institutions. Other changes announced Apr. 20 were the ,
promotion of longtime FDOC attorney tQ general counsel, i
replacing Lou Vargus who retired from that position, and the ,
hiring of Anthony Miller, who had been working for the Dept.i
Of Management Services, as deputy general counsel.
• On Apr.· 20 the former executive director for the dissolved i
Correctional Privitaion Commission, Alan Duffee, 40, was
sentenced to 33 m~nths in federal prison and three years I
probation after admitting he stole $225,000 in state money to '
help buy houses for him and his girlfriend..Duffee had pleaded
guilty to one count each of mail fraud, wire fraud and money
laundering.
.

Florid,a Prison Legal Perspectives

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FLORIDA PRISON PHONE RATES REDUCED
The FPLAO F.A.l.R. '(Families Against Inflated Rates) Campaign staff are very' pleased to
report success in obtaining lower phone rates for prisoners' families and friends who accept
collect calls from their incarcerated loved ones. After working to reduce the phone rates for over
three years .with no success, on Apr. 10,2006, PPLAO filed suit against the FDOC and Fla.
Public Service Commission challenging the exorbitant phone rates. Following negotiations
between FPLAO staff. FDOC Secretary James McDonough and \he Public Service Commission,
on Apr. 21 Secretary McDonough agreed to reduce the collect call rates by 30 percent by
reducing the amount of commission the FDOC receives from MClIVerison on the prison phone
'contract by $10 million, from $17 million, a year. FDOC had been receiving 53 percent of the
rates charged, which resulted in very high charges from the phone company.
Secretary McDonough agreed that the past rates (55.30 for in-state IS minute calls, and 519
for IS minute out-of-state IS minute calls) were unreasonable and unfairly burden prisoners'
families who had to pay such rates to remain in contact with a family member in prison.
Additionally, Mr. McDonough said the 'phone contract will be re-bid in early 2007, and that he
would like to see a further reduction ,in the rates included in that contract.
FPLAO has agreed to drop its lawsuit at this time. FPLAO staff wishes to thank all those who
helped and made donations to the F.A.I.R. Campaign, including all FPLAO members and the
Unitarian Universalist Fund which provided a grant to the campaign. Thank you all for your
much needed support, it was key in achieving this success for all Florida prisoners and their
families. FPLAO will be monitoring the phone contract when it's re-bid and working for even
lower rates.

PRISON LEGAL NEWS

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Florida Prison Legal
Perspectives

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