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FLORIDA PRISON LEGAL

PERSPECTIVES

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Prisoner Beaten and Choked; Guards
and Officials Fired, Resigned and
Reassigned; Death Threats Reportedly
Made to Whistle blowing Officer

F

our guards at the Southwest Florida Hendry
Correctional Institution on March 16, 2007,
allegedly for beating and choking a prisoner
unconscious in a confinement unit at the prison,
reportedly because he had filed grievances about the
confinement area. FDOC Secretary Jim McDonough
ordered that Sergeants Randy Hazen, William
Thiessen and Phillip Barger and Correctional Officer
Gabriel Cotilla be fired and said the four could also
face criminal charges.
According to the Department of Correction's
investigation, the incident began March 14 when
prisoner Charles Gundlah. who is serving a life
sentence for murder. was removed from his cell by
the four guards and taken to an area out of sight of
security cameras and beaten in the face and on his
head before being choked unconscious because he
had filed a grievance two days earlier complaining
about denial of medical treatment and harassment by
guards.
When Gundlah was returned to his cell and the
shift changed officers, Sergeant Bruce Sooy said he
noticed fresh bruises on Gundlah's neck and reported
it to medical and higher officials. FDOC investigators
determined that the four guards did beat and choke
the prisoner.
On March 21 Secretary McDonough (living up to
his previous warning to corrupt and abusive FDOC
employees that he is not a man to be trifled with) had
Hendry CI Warden Carol Starling. 53. and Assistant
Warden Jim Tridico, 62, removed from their posts
pending reassignment and he fired Colonel William
Avant. 40. who was in charge of security at the
prison. McDonough said Avant was fired because he
was responsible for the safety of everyone at the
prison "every minute. every day." And that was
"absolutely not" done in Gundlah's situation.
lilt's been over a year since we made very clear
what the standards are and the vast majority of the
department has come to understand that,"
McDonough said. "Some of the officers. and perhaps
some of the leaders thought they could take the law
onto themselves." A couple of days after being
suspended Starling and Tridico were allowed to

resign. However, the incident was far from being
over.
According to FDOC reports, on the evening of the
day that he was fired Avant held a party at his statesupplied housing on prison grounds. with the gues.
list reportedly including the guards who had been
previously fired. Around 9: 15 that night, three phone
calls were made from the party to the prison
threatening Sgt. Bruce Sooy's life for reporting the
assault on Gundlah. Some party-goers reportedly then
drove through the prison parking lot threatening other
staff members.
Hendry County Sheriff deputies were called to the
staff housing area and additional staff was called in
from other institutions to ensure the security of the
1.2062-bed prison. McDonough ordered the prison to
be locked down.
On the day following the party. 10 FDOC
employees were placed on paid leave while a major,
the classification supervisor and a secretary were
fired for their alleged roles in the party and other
activities, according to McDonough.
Sooy was promoted to major.
Another day passed and McDonough's office
announced that of the 10 placed on paid leave a
captain and a correctional officer were being
transferred to another prison; 5 more officers,
including a lieutenant, had been fired; and three
others would continue on leave as the investigation
continued.
Hendry CI Chaplain Robert Wiederman was
among those still under investigation. Reportedly. he
had sent three e-mails to McDonough the day after
the party asking him to be lenient with prison leaders.
What alarmed him most, said McDonough. was that a
chaplain who is suppose to be concerned about and
guiding the spiritual life of the prisoners had sent him
one e-mail suggesting that the officers may have
made a "mistake for the right reason."
James Brown, William Diaz, Kevin Filipowicz.
Tina Morgan and Stephen Whitney were the 5
dismissed in that latest round of firings.
McDonough promoted Vickie Langford from
assistant warden to be warden at Hendry CI. Colonel
James Blackwood from Okeechobee CI and Colonel
John Palmer from Santa Rosa CI were promoted to
assistant warden positions at Hendry CI. •

FLORIDA PRISON LEGAL

ers ectives
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/

ISSN# 1091·8094

yOLUME 1'3 ISSUE 2

Fla. Supreme Court
Reaffirms Schmidt v. Crusoe:
New Problems Created
by Sherri Johnson
he lead art_cle in Volume 12, Issues 5 & 6 of FPLP,
entitled "Circuit Court/DCA Engaged in Crosade to
Roll Back Court Access for Collateral Criminal
Proceeding Litigants," concerned an important case
affecting Florida state prisoners, Schmidt v. Crusoe, 878
So.2d 361 (Fla. 2003) (which held that Florida's Prisoner
Indigency Statue, § 57.085, Fla. Stat., does not apply to
collateral criminal court proceedings filed by prisoners).
That article also detailed the steps that some lower courts
have taken to ignore the Schmidt decision, impede and
actually obstruct prisoners' access to the courts, and to try
to persuade the Florida Supreme Court to recede from
Schmidt.
Shortly after that issue of FPLP was published the
Supreme Court rejected those lower courts' efforts and
reaffinned its 2003 decision in another case involving
prisoner Dan Schmidt. Schmidt v. McDonough, 32
Fla.L.Weekly SI6 (12/21106'); However, as discussed
below, the legal reasoning in that latter decision (referred
to as "Schmidt If' herein) is arguably infinn where it
appears that the Supreme Court sought to pacifY the lower
courts by h~lding that even though prisoners' collateral
criminal proceedings are not subject to the prepayment
and lien provisions of § 57.085, they are still subject to the

T

, MAR/APR 2007

indigency certification requirements of § 57.081, Florida's
general indigency statute.
Already Schmidt JI is causing problems, with at
least one lower court twisting the decision on its head to
continue the campaign to impede and obstruct prisoners"
court access. But, if nothing else. the issues are bein'g
narrowed. Unfortunately, it may take federal litigation to
straighten out the mess that has evolved over time and that
acts to block prisoners' court access in Florida.
Schmidt.J
.
In the first' Schmidt decision the Florida Supreme
Court held that indigent prisoners who bring, legal
challenges that could conceivably reduce the amount of
time spent in prison, tenned collateral criminal
proceedings (e.g. challenges to gain time forfeitures,
prison disciplinary actions involving loss of gain time,
adverse parole decisions, etc.), are exempt from the
prepayment and inmate account lien provisions of §
57.085, Fla. Stat., Florida's Prisoner Indigency Statute,
that was enacted in 1996 to reduce (so-called) frivolous
inmate lawsuits. As pointed out by the court in that case §
57.085 itself contained a provision stating that it did not
apply to criminal or collateral criminal proceedings. But
Ipwer cou_rts, primarily the Second Judicial Circuit Court
~d Fir.:t District Court of Appeal, where the majority of
such pnsoner legal actions are filed, were ignoring thJll
exemption provision and requiring compliance with §
57.085 no matter what prisoners filed in those courts.
Following Schmidt J it was thought that those
IQwer courts would begin complying with the law and the

FA,'IlLIES ADVOCATES PRISONERS

ON

I

THE
INSIDE

.4

Lawsuit Nets Prison Nurses $1 Million

. Family Settles Lawsuit in Prisoner's Death

;.......•............5
Big Changes at Sumter CI.••;•••.•.•...•.•.•...............................•...6
Post Conviction 'Comer
10

Nota~le ~.ases

~

13

Florida Prison Legal Perspectives
FLORIDA PRISON LEGAL PERSPECTIVES
1'.0. BOX 1511

CI-IRISTivlAS, FLORIDA 327( 1)
Puhlishing Division of:
FLORIDA PRISONERS' LEGAL AID ORGANIZATION, INC.
1\

5111

(~)

(.1) NOll'Plolit 1 lrg;lIIizalioll

high -court's decision. It was not to be. Those lower
courts continued to illegally block and impede collateral
criminal prisoner litigants' court access through
intentional misapplication of § 57.085. (See the article
cited above for a more detailed examination of Schmidt I
and the lower courts' actions.) Those courts sought to
force the Supreme Court to reverse its decision in Schmidt.
Unknown to many, however, prisoner Dan
Schmidt had another case pending in the Florida Supreme
Court that the court had stayed and put on hold while it
observed the effect that its first decision had.
Schmidt II

FPLAO DIRECTORS
Tl'n:sa Burns-Posey
Boh 1'0Sl')', eLA

David W. Bauer, Fsq.
Loren D. Rhoton, Esq.

FPLP STAFF
Publishl'r
Edilor
Rl'sl'an:h

Teresa Burns-I'osl')'
Boh Posey
Shl'rri Johnson
Anthony SlIIart

F1l11ida I'risonl'rs" I.cgal Aid Urganil.atiou, Inl:.. 1'.0, 110.'( 1511,
Christmas. 1'1. 327()'), pllhli,hl's I'I.UIW)A I'RISON LEGAL
I'EltSI'I'.(:TIVES \1'1'1.1') up to si,s timc.s a ycar. 1'1'1.1' is a non-prolit
puhli<.:atioll lill"llsing on thc Florida prisoll and criminal jnsli<.:c
systcms. I'I'LI' prO\'id~s a I'ehi<.:k lilr ncws. intill'lnation. ami
n."S'"I"es afl-'l'ling prisollers. th~ir l;ullilks. frknds. 101'ed 'lIl~S. amI
the gencral puhlic of 1:lllrida. Ikduction of nimc and reddil'ism,
m:linknan<.:c of I;unily lil's. <.:il'il rights. improl'ing cOllllilions of
conlincm<.:nl, promoting skilled <.:ourl al'n'ss li,r prb:oncrs. and
promoting ac<.:ouulahility of prison oflirials ar~ all issm:s I'I'U' is
,k,signc'd 10 add"ss, I'I'LI"s uon-auollley I'olullkc'r staff <.:annol
re.spond 10 requests till" kgal adl'i~c. \)IIC 10 Ihc I'olllmc or nlailthat is
re<.:dl'cd and I'oluuleer ,slal"l" lillliialions. all <.:olle'pond<.:n<.:c Ihat is
rcceivcd .:anuol he rcsplImkd 10, hut all mail will reeeivc indil'idual
allcntioll. I'ermission is l,:1~lnt,,1 10 reprinl makrial appcaring in 1'1'1.1'
, that docs nol indi<.:alc it is wpyrighled prol'ided that I'I'LI' allli any
indi<.:aled aUlhor "rc idenlili,'d in the reprinl and a <.:opy or Ihl'
puhlieatioll in whidl Ihe mat<:rial is puhlished is prol'ided to thc
1'1'1.1' puhlishl·r. Thi.s pnhli<.:atioll is 1I0t mcallt ".1 h<.: a suhsliluk ti,r
kgal or olhcr proks,sionat adl'i<.:e, Th<.: mat<:rial in 1'1'1.1' should not
he rdic'" Ul'0ll as authoritalil'e and may Nol <':olltaill sufli<.:icllt
inlill'lllal;oll 10 dcal wilh a kgal pl"llhkm, 1'1'1.1' is automati<.:ally SCllt
to all memhers of FI'I.AU, Inl:. as a mcmhcrship hcndil.
i\kmhcrship du" ti,r 1'1'1.1\0. 1111:.. opcratc y<.:arly alld arc SIO -tilr
prisoncrs. SIS lilr t;lIllily Illl'lI1hcrs alld tllhcr pril'atc imlil'i,luals, S,lO
ti'r allulllc}'S, and $I,Olilr ag.:neies. lihraries, allli inSlilutiulls_

The first case brought by Dan Schmidt and ruled
on by the state Supreme Court was pretty much straight
forward. Schmidt had filed a petitioner for writ of
mandamus in the circuit court challenging prison
disciplinary action that resulted in a forfeiture of gain
time. Schmidt sought to proceed as an indigent, but the
circuit court sought a filing fee or affidavit of indigency
and six-month printout of Schmidt's inmate account
pursuant to § 57.085, the Prisoner Indigency StatUte.
Schmidt .responded that he was not subject to those
requirements because his mandamus action was a
collateral criminal proceeding exempt from § 57.085. The
circuit court rejected that contention. And when Schmidt
sought a writ of prohibition in the First DCA that court
also sought to force Schmidt to comply with § 57.085 to
proceed in that court, or face dismissal.' Schmidt then
turned to the Supreme CO'urt with a mandamus petitioner
for require the lower courts to comply with § 57.085(1,0),
which exempts collateral criminal proceedings from the
rest of the provisions in § 57.085. That case resulted in
Schmidt v. Crusoe, 878 So.2d 361 (Fla. 2003) ("Schmidt
I." herein).
The second case filed by Schmidt and that now
has been decided by the Supreme Court ("Schmidt II,"
herein) was not so straight forward.
Schmidt had received a second disciplinary report
and had more gain time taken for disobeying an order
concerning the use of a computer in a computer class. He
also was kicked out of the class. He again ended up filing
.a mandamus petition in the circuit court, this time, seeking
not only the return of the forfeited gain time (like in his
first case) but also seeking to have the court order that he
be allowed to return to the computer class.
Again, like in the first case, the ~ircuit court tried
to make Schmidt comply with § 57.085 provisions to
proceed as an indigent. Again, Schmidt refused to do so
and sought a writ of prohibition from the appeal court,
which again also sought to force Schmidt to comply with
§ 57.085. When Schmidt refused to comply the appeal
court dismissed his prohibition petition followed by the
circuit court dismissing his mandamus petition.
Schmidt then sought to appeal the dismissal ofthe
mandamus petition. And again, the first DCA sought to

Florida Prison Legal Perspectives
force him to comply with § 57.085 to proceed on appeal as
indigent.
Schmidt went back to the Supreme Court with
another mandamus petition seeking to bar the apPeal court
fr<?m dismissing his appeal. The appeal court went ahead
and dismissed the appeal when Schmidt failed to pay a
filing fee or comply with § 57.085, but the Supreme Court
stayed the case anyway while it proceeded to resolve
Schmidt's first case.
Most notably, in the second case Schmidt claimed
he not only was not required to comply ~ith § 57.085
provisions but ·that he also should' n9t be -required to
comply with the general indigency certification
requirements of § 57.081, Fla. Stat. He also claimed that a
"mixed" petitio~ne in which a civil claim (his seeking
reinstatement to the computer class) is piggy-backed onto
a gain time claim (a true collateral criminal claim~is
also exempt from the prepayment and lien requirements of
§ 57.085. The state responded claiming the Schmidtl was
wrongly decided and asking the court to overrule it.
As to Schmidt's first claim, that he is not required
to comply with §§ 57.085 or 57.081 indigency provisions
because his underlying mandamus petition was a collateral
criminal proceeding and is in the nature of a habeas
petition, the Supreme Court agreed with. him-in part.
With respect to § 57.085, Schmidt is correct concerning'
the gain time issue, the court decided. But he is incorrect
in claiming that he is not subject to § 57.081, wrote the
court. The court did not explain why § 57.081 would
apply to collateral criminal proceedings if, as is fairly
indisputable, they are "in the nature of a habeas petition,"
as they certainly are considering their history. Instead, the
high court simply interpreted the language of § 57.081,
which specifically exempts prisoners "as defined in §
57.085" .t'fom the general indigency statue provision to
mean that such exemption only applies to non-collateral
criminal proceedings that are subject to § 57.085
provisions.
Next, the Supreme Court, however, rejected
Schmidt's claim that "mixed" petitions, those containing
civil claims piggy-backed onto a gain time (or true
collateral criminal claim) are also exempt from § 57.085
provisions. (The court's reasoning on that claim is sound,
in this author's opinion.)
The court reasoned, essentially, that prisoners
cannot avoid or circumvent the § 57.085 requirements J.>y
piggy-backing civil claims that have nothing to do with
duration of sentence onto collateral criminal (duration of
sentence) claims in one proceeding.
In conclusion, the Supreme Court held that:
"[1Jbe filing of a mandamus petition raising a
gain time claim is notfree ofcosts, and thai although such
petitions are exempt from the prepayment and lien
requirements of the prisoner indigency statute, §57.085,
they coniinue to be subject to the certification

requirements of tl,re general indigency· statute, §57.081.
We also hold that 'mixed' petltions-petitions where civil
claims are piggy-backed onto gain time claims-are not
exempt fro';' the prepayment and lien requirements ofthe
prisoner indigency slatute."
Thus.. Schmidt's - petition before the Supreme
Court was denied and new games began in the lower
courts.
Conclusion
. Already orders have been seen issuing out of the
Second Judicial Circuit Court following Schmidt n on
pure collateral criminal mandamus cases claiming they are
"mixed" petitions and therefore subject to (you guessed it)
§ 57.085 prepayment and lien provisions. These orders
are claiming the petitions are "mixed" for a variety of
reasons, e.g., that they are seeking "declaratory" relief, a
civil relief, in addition to challenging, e.g., a gain time
forfeiture, etc. Already new and unnecessary litigation is
being spawned by that circuit court's determination to
reduce its prisoner - case load by intentionally and
knowingly not following the law and instead trying to
change the law at the expense ofjustice and constitutional
rights.
It is fortunate few post _conviction motions are
tiled in that court, since they are also c~lIateral criminal
proceedings potentially affecting the duration of a
sentence, like a gain time forfeiture challenge. Otherwise
that court would likely be trying to charge a filing fee or
requiring § 57.081 or § 57.085 compliance on post
conviction motions- also to reduce the number of them
filed. So far that hasn't happened, but since such post
conviction proceedings are clearly offspring of state
habeas corpus, just like the mandamus petitions
challenging duration of sentence issues are, can it be very
far down the road? Therein lies the fallacy of the
Supreme Court's reasoning in Schmidt II, and probably
the basis of a federal constitutional challenge to using
indigency statutes and costs to impede and obstnict access
to the courts to protect a liberty interest••
0-

FDQC Secretary Mandates
That Employees Get
Physically Fit
Decently Florida Department of Corrections (FDOC)
..£'-secretary Jim McDonough directed Florida prison
employees to either get physically fit or risk demotion or
losing their jobs. McDonough, a retired Army colonel,
who was picked to run the state's prison system last year
after the former secretary, James Crosby, was force out for
corruption, sees staff fitness as a high priority and key
stage of cleaning up the system after years of corruption
3
and underperformance.

Florida Prison Legal Perspectives
No doubt· McDonough was astonished when he
.first took over the FDOO and traveled to institutigDS
around the state and observed firsthand, the general
sloppiness, obesity; and poor physical condition of his
correctional staff.
.
McDonough's proposal would require that prison
guards, regardless of rank or assigned duty, meet
minimum physi~1 fitness requirements, according to age,
such as running a mile-and-a-ha.lf in a set time and doing a
set number of push-ups. Those who repeatedly fail to
meet the standards would face action that could result in
demotion or dismissal.
Getting tough is the right app.roach to straighten
out the FOOC that is still reeling from corruption scandals
that came to light over the past two years and reach all the
way to the .top positions in the department, says
McDonough.
"The two key elements ofthe job are being able to
protect the public and being able to protect each other,"
McDonough said.. "It may mean coming to the aid of a
colleague, dashing two or three hundred yards, and, under
stress, handling themselves and calming an issue. At any
given moment, that might suddenly require agility,
strerigth, and stamina."
While Gov. Charlie Crist has expressed approval
of McDonough's fitness plans, the union that represents
many prison staff, .the Florida Poiice Benevolent
Association, has expressed dissatisfaction, not with the
plan per se, but With McDonough's mandating it. FPBA
executive director David Mt,lrrell says the union is
concerned that McDonough could be changing the terms
of guards' employment without proper consultation
(presumably with the FPBA). Murrell claims the physical
fitness requirements shou,]d be voluntary and come with a
bonus (from taxpayer monies) for compliance.
McDonough said he has listened to the concerns,
the union was represented on the panel that drew up the
criteria for the plan, and he believes thBt 75 to 80 percent
o.f the department's rank and file are in favor of the plan.
He said he intends to have the program up and running by
the middle ofthis year.
Exhibiting his attitude, McDonough, who is
nearing retirement age himself: said he'll not ask anyone
to do anything that he's not prepared to do himself. He
says he'll be the first to take the fitness test and intends to
meet the minimum standards for the youngest age group.
McDonough, leading by example, was also the
first to take a drug test after he started mandatory testing
of employees a year ago fo,lowing a scandal involving
former and then-current prison staff smuggling,
distributing and using illegal steroids.
[Sources: FIXlC Memorandum to Employees, 12/07; AP
News; Christian Science Monitor 1130/07) •

4
•

Lawsuit Nets Prison Nurses
Almost 51 Million
TALLAHASSEE-In January '07 a jury awarded almost
$1 million to 12 women nurses who worked at a North
Florida prison who had sued the state claiming that a
sexually hostile workplace violated their civil rights.
A federal court jury in Panama City reached its
verdict in January, over six years after the nurses at
Washington Correctional Institution first complained that
prison officials weren't doing enough to protect them from
prisoners who, whiJe the nurses made their rounds, used
graphic language and masturbated toward them. That
latter practice is known in prison slang as "gunning" in the
Florida prison system and o,nly started after female prison
employees sued over two decades ago for increased
opportunities to work in male pris~)RS and around male
prisoners.
This suit inyolved prisoners who were housed in
long-term solitary, sensory-deprivation confinement called
CI. The nurses said they
Close Management at Wash
repeatedly filed disciplinary reports against offending
prisoners who talked vulgarly to them or masturbated in
their sight while they dispensed medication in the
confinement areas and that they complained to their
superiors, to no avail.
After a weeklong trial before U.S. District Court
Judge Richard Smoak, the jury of four women and four
men found in favor of the nurses and awarded them
$990,000 in damages for emotional distress. Individual
damages to the 12 nurses ranged from $37,500 to $97,500,
depending on how long the nurses had been employed at
Washington CI.
"I'm so thankful that the jury believed in us
because something had to be done," said Nurse Kathleen
Rudolph, 54, of Fountain, Florida, whose complaints
started the lawsuit. Rudolph, who worked at the prison for
12 years, said officers discouraged her and other nurses
from filing complaints or refused to process disciplinary
reports against prisoners because they wece not detailed
enough. "This would happen on a daily basis," claims
Rudolph.
One of the nurses' attorneys, Wes Pittman of
Panama City, said prison officials could have taken
minimal steps to stop the prisoners'· offensive behavior,
such as having guards accompany nurses on their rounds
or insisting that prisoners be clothed.
In apparent response to the lawsuit the
Department of Corrections changed its rules last year to
make the intentional exposure of genitals or masturbating
by a prisoner subject to 60· days in disciplinary
confinement and loss of 90 days gain-time. That penalty
will be as ineffective as the prior penalty, claim some .
critics, mainly other prisoners who have a unique and
personal insight" into what works arid doesn't work inside
prison.

Florida Prison Legal Perspectives
"Frankly, I am as disgusted as any other person,
just like the majority of prisoners are, by the few sick
prisoners who 'gun' female employees. Mo~t prisone~
shun the 'gunners,' they are often mentally III to begm
with," said O. H., a prisoner at Sumter CI. "~ut the
problem goes deeper. Most of the ones who engage I.n such
behavior towards female employees are mentally III, but
most also understand that their behavior is wrong. When
caught, the DOC simply locks them up in confinement for
a while, something they don't mind. There is no therapy
or counseling given to try to change their behavior and no
prosecutions for committing what is, in fact, a crime-something that would probably get their attention when
they have to spend more time in prison," o. H. said.
Another prevalent problem is that some female
FDOC employees actually invite and encourage such
prisoners. The reality is that most women who choose to
work in prison are not physically attractive. Expo~ to a
large population,of sexually-deprived.men who give them
more attention than they have ever had and ollen working
in housing' areas where they eaSily can view male
prisoners unclothed, •in the showers, and in personal
situations. for some female employees the temptation is too
much.
Ask any Florida prisoner if he has ever known a
female employee to flirt with prisoners, or while working
alone in a dormitory or housing area to encourage (often
selected) prisoners to take a shower or masturbate where
the female employee can see and watch, and most
prisoners will tell you there are always female staff like
that at every institution. "The FDOC doesn't want the
public to know that, but that's the way it is," said Mike
Tunsell, a prisoner who spoke with FPLP staff. That, says
Tunsell, encourages the "gunners/' who see other
prisoners allowed and encouraged by female staff to
engage in sexual behavior. Thus, the "gunners'" belic~.r
that they too can develop a personal relationship with a
female employee is constantly reinforced.
An other problem is where unscrupulous female
employees use a fabricated· charge of sexual activity
against innocent prisoners who the employee doesn't like
or wants to get for some reason. In prison disciplinary
. proceedings such a charge by a. female staff member is
considered to be substantiated by the mere allegation of it,
and thus is indefensible.
.
. According to many prisoners (who·FPLP staff
have spoken with) it is ironic that Washington CI nurses
brought and won such a lawsuit, no doubt including many
of the same'nurses who have conspired with prison guards
to cover up the Widespread abuse of prisoners that
Washington CI is notorious for. It is very likely, such
,risoners say, that the reason the nurses were able to claim
'hat no action was taken on their disciplinary reports
gainst prisoners who offended them is because no
aperwork was created from the real punishment metted
ut by prison guards. Washington CI has a system-wide

reputation for skipping the reports and going straight to
the beating and pepper-spraying of prisoners.
The lawsuit brought by the Washington CI nurses,
now that it was successful, may spur even more such suits.
Already prison nurses in Lake and Martin Counties have
similar lawsuits pending.
[Source: St, Petersburg Times, 1/31107] •

,Family' Settles Lawsuit
Over Prisoners Beating
Death by Prison Guards
MIAMI-In late January '07 the family of a prisoner who
died after being brutally beaten, kicked and stomped by a
gang of Florida State Prison guards in 1999 agreed to
settle their lawsuit against the former warder of the prison
and the guards for $737,500.
Relatives of Frank Valdes, who was on Florida's
death row for having killed a prison guard in a botched
attempt to help another prisoner escape and who was
himself beaten to death by several prison guards while
handcuffed and helpless, agreed to s~ttle the suit after 7
years of litigation. Their attorney, Guy Rubin, said the
settlement included attorney fees and costs.
Valdes died after being attacked by the gang of
prison guards on X-wing at Florida State Prison. An
autopsy found that he suffered almost all of his ribs being
broken, numerous fractures and internal injuries. Bootprints were prominent on his body. The prison guards
claimed Valdes killed himself by throwing himself off his
,bunk onto the floor. Four guards who were charged in his
death were later acquitted at a trial held in the small town
near the prison where prisons dominate the economy.
In addition to suing the guards who were involved
in murdering Valdes, his family also sued former Florida
Department of Corrections Se~retary James Crosby who
was the warden at FSP in 1999 when Valdes was killed
and who, the lawsuit claimed, was partially responsible for
Valdes' killing in that he allowed a culture of prisoner
abuse and beatings to exist at FSP during his tenure there.
After Valdes was kilied Crosby quickly rose in the
prison syste'm and in 2003 was picked by former Gov. Jeb
Bush to be the DOC chief. Crosby, however, was forced
to resign in 2006 when being investigated fot:" corrUption .
by both state and federal authorities. Crosby later was
charged accepting illegal kickbacks from a prison canteen
vendor, a federal charge to which ,he pleaded guilty.
Crosby is scheduled to be sentenced in April '07. His
sentencing had been put off at least twice as he continued
to provide federal prosecutors with information about
corruption within the FDOC.'
The attorney for Valdes' family said they were
glad the lawsuit was finally over and ,that they prevailed,

5
'.

Florida Prison Legal Perspectives
but that they felt that the state's response was "too little
too late."
.'
[Source: A~sociated Press. 1/3,0/07J •

Big Changes at Sumter C.I.
by Doctour Raul

.

6

F

.

.. . . !"'any da~~. Williams would walk the compound
WIth an East UOIt look on his face. On other days he
would have problem cases and "writ writers," he called
them, brought to his office, often in handcuffs. He would
investigate grievances with. thuggish insinuations,
.
behavior. or language.
Duri~g .an interview over grievances regarding
Sumter's mad room practices, Williams began by telling
Edwin "Hawk" Beatty and Richard Geffken that he was
going to sen~ them to Century C.1. Beatty says that the
AWP told him "I don't like your writ-writing· ass," that
Williams verbalized his anger by saying, "You're cookin'
my grits, boy!", and .that he asked if the two prisoners
knew that he could have his officers "chain you over a

or almost a decade, Sumter C.l. in West Central
Florida has been the institution of choice for many of
the system's older and wiser prisoners. Located about an
hour north of Tampa and an hour west of Orlando, the
relaxed atmosphere has been one in which a man could do
some serious time. Then, just a few years ago, Colonei
barrel.".
Daniel Olinger anivedand things began to change.
.
Obviously. William~ thou~t that his lack of
Towers went up in the middle of the compound,
professionalism and thug mentality was shared by the
~any of the huge oak t.rees were cut down, and yellow
other staff there. His statements to Beatty and Geftken
.hn~s were painted on the sidewalks. Colonel Olinger
were witne~sed by Sgt. Carter and.C.O.!. Harold Meyers.
qUIckly became known for his unwritten rules the
two profes~lOnals who were apparently as shocked by the
violation of which would land a prisoner in confine:nent.
. outbursts as the .two prisoners. Later, Officer Meyers
As a parade of wardens came and went, the Colonel
asked Beatty to "leave .me out of this," seemingly a
showed no sign of moving on. He was considered a loose
reference to a grievance to follow, and Sgt.. Carter,· when
cannon; inmates and staff would avoid him, if at aU
asked the next day by Beatty what Williams meant,
possible. And then things got worse.
remained silent for a minute then declined to comment.
In late 2006 a sudden swap of Assistant Wardens
As Beatty shared~e interaction with others, much
for Programs (AWP) between Sumter C.I. and Polk C.I.
debate centered around what the AWP meant by 'his threat
was orchestrated by the powers that be. Sumter's Jimmie
to c~ain th~ two prisoners "over a barrel." Many of the
Atmore was exchanged for Polk's Greg Williams. .The
old-time pnsoners thought the comment reminiscent ofthe
immediacy of the exchange was unusual and appeared to
. qld movi~ Deliverance where a man was chained to a tree
strengthen the rumor that Greg Williams had come under
to prevent resistance during a homosexual rape. Beatty's
investigation at Polk C. I. for having the P.R.I.D.E.
requ~ forclarifi~ation, sent to the·AWP, somehow got
furniture build a pair of poker tables for him, under the
tom IR half and then taped back together before being
table. But WiUi~s was no stranger to Sumter C. I.
returned. And the response failed to clarify Williams'
The new AWP had been a classification officer at
statements to the two prisoners.
Sumter under the notorious tyrant Donnie Simpson only
Wisely, Beatty grieved the!threats and requested
four years before. That WiJJiams somehow was fastthat no retaliatory transfer be allowed. Shortly afterwards,
tracked for promotion, going to Tomoka, Union, and Polk
Geftken was transferred to Mayo C.I. .
before returning to Sumter, seems to prove that Secretary
Sometime aro~d Thanksgiving of 2006 Mr.
McDonough's housecleaning had not been complete.
Williams
contracted with Sumter's P.R.tD.E. print shop
Now he was back at Sumter C. I. and, as supervisor to .
to. prepare some work for his church group. The order
many who were once his supervisors, he luld obviously .
we?t through the proper channels, was Completed and
not forgotten the many slights he had suffered nor was he
dehvered. .Later, however, as if in defiance of his
willing to forgivc. Donnie Simpson was Williams' first
experiences with Polk C.l/s P.R.I.D.E. and the poker
target.
.
tables, the AWP asked an inmate at Sumter's P.R.I.D.E.
That Simpso~ created. for much of his staff an
print. to create a database for. his church group to use to
environment that can easily be descnDed as hostile· is.
maintain ~nancial records. This job, as the one at Polk
perhaps, an understatement. One staff member who
C.I., was under the table, no purchase. order, no payment
declined to be named said that Williams caught "pure
to be rendered. Although Sumter's P.R.I.D.E. print
hell~ working under Simpson. And, suddenly, there was a
doesn't do database work, inmate employees there had the
new sheriff in town.
~kill to create what. the AWp wanted. Supervisors and
Within a few months of Williams' return to
uunate employees feared Williams too much to refuse.
Sumter C. I. as the AWP, Donnie Simpson's thirty. As one prisoner labored for nearly an entire week.
somethin~ year rei~ over the Classification Department
being paid by P.R.1.D.E.• the AWP sat beside him for
en~~d. Simpson was gone--no notice,. no farewells, no
hours explaining what the database was to do. When the
retirement party. And then Greg Williams scanned the
database
was finished, it was burned onto a disc so tba1
landscape looking for his next target.
.

3ft

t

t t .. W

Florida Prison Legal Perspectives
Williams could take it out of the prison to his church
group.
The AWP gained, in his personal capacity, from
the inmate labor that created the database. In addition to'
avoiding the cost of having the database created legally,
the AWP gained social standing and influence with his
church group by being able to obtain the free technology.
As autumn settled in at Sumter C.I., Mr. Williams
had seemingly selected his next staff target for retaliation.
His victory over Donnie Simpson had obviously increased
his belief that he had total control over the institution, and
he had other past wrongs to right. So, using the M.I.S.
staff person, Mr. Dan, Bazela, as a ftont, the AWP
launched his attack on Dr. Roger Sm~th and the Education
Department.
S.C.1.'s Education Department is known by
prisoners throughout the state as being one of the best in
the system.
Using the most advanced technology
available, the deparbnent is completely computerized and
otTers four vocational courses, ABE and GED classes,
Special Ed classes, Boot Camp classes, and Enhancement
Programs. Greg Williams correctly assumed that an
attack on the computers used by staff and aides .could
potentially cripple Dr. Smith's department. So a witch
hunt began.
Under the ruse of searching for unauthor:ized
music on aides' computers, several machines were
confiscated, the department's LAN system was removed
and several other machines were left in pieces in an
aborted 'attempt to uninstall Windows XP. The etTect was
catastrophic and brought the deparbnent's daily operations
nearly to a halt.
One staff member who refused to be named
because of.career and retaliatory concerns, said that Dr.
Smith was angered and humiliated, often spoke of
purchasing some rolodex files to replace the computers,
and was embarrassed when regional and Central Office
requested data that he could no longer supply. Years of
data and C?Orrespondence were lost to the attack. But why
attack a department that could, and would, make the AWP
look good?
.
Several" statT members, also afraid to be named,
said that Dr. Smith and Mr. Williams had had "bad blood"
before Williams left his position under Donnie Simpson.
About five years before, they say, when Dr. Smith and
Donnie Simpson were close friends and fellow department
heads, Dr. Smith had publicly embarrassed and humiliated
the then-Classification Officer Greg Williams. Though
full details were not given, they say that in an open
meeting Williams had verbally exposed his incompetence
and Dr. Smith berated him.
The story gOes on to say that the incident was so
harsh that, before the day was over, Dr. Smith received emails and phone calls from people who were not present
but had heard about it, conJPtulating him for the way he
put Williams in his place. The rural, southern, educated

culture group to which bQth Smith and SimpSon identified
with, may have contributed to the eagerness with which
the black, inexperienced, and slow-witted Williams was
attacked. But an old adage advises one to be careful
whose butt they kick moving up or down the career ladder
becaUse you may be forced to kiss it later. Obviously,
Simpson and Smith paid no heed to this.
While the attack on Dr. Smith and his department
was escalating, a high-echelon administrative meeting was
held to discuss the events. Among those present·were the
Warden (who was "retired" and I allowed his two Assistant
Wardens to oversee daily operations), both Assistant
Wardens, and Dr. Smith. Another afraid-to-be-named
statTmember told of that meeting:
The Assistant Warden of Operations (Security)
attempted to call Williams (the AWP) off of the Education
Department. As the Warden sat back and refused to get
involved, Williams displayed his thuggish nature by
shouting down the AWOo As a result, Williams' attack
would continue.
During the ongoing attack to discredit and
embarrass Dr. Smith, someone suggested that Education
aides were plotting to crash the FDOC network from their
PC's in the Education Deparbnent. Because Williams was
known to have a grudge to settle with Or. Smith, and
because he was by this time actively attacking inmate
education aides in the hope' of embarrassing Dr. Smith, it
is believed by many that he was behind this absurd claim.
Also contributing to this is that the M.I.S. staff person,
Dan Bazela, admitted that he believed Williams had used
him to attack Dr. Smith for personal reasons. An
investigation by the Inspector General's Office quickly
showed the. claim to be false. The target was, all along,
Dr. Smith and his department.
.
As a part of his etTort ·to discredit Dr. Smith and
the Education Department, Williams zeroed in on, one
particular education aide who was in a key position.
Williams had that prisoner brought to his office in
handcuffs twice, tried to get him to agree that one of the
teachers was bringing contraband to education aides and,
when this netted no results, accused the aide of having sex
with boot camp inmate students in the education building.
This charge, however, was refuted by five staff members
who were always present if the aide was near a boot camp
inmate. It was physically impossible due to the direct and
constant supervision, but Williams would bring it up again
later, thereby ignoring staff's word in his attack on Dr.
Smith. .
When the AWP could produce no charges against
the aide he had selected for attack, he proceeded to punish
the prisoner anyway. The aide was fired from the
education department, moved out of his one-:man cell, and
later put on what amounted to house arrest for three weeks
before being locked up for investigation and trnnsferred a
significant distance from his family. And still, the AWP's
. thuggish be'haviors became more evident.

7

Florida Prison Legal Perspectives

8

Greg WilJiams, the AWP, had seemingly never
paid much attention to the S.C.I. Lifers' Group, other than
.to periodically deny a request from them regarding new
self-bettennent p{Ograms. He refused repeated invitations
to attend their meetings and failed to show up at their
Sponsor Appreciation event in October 2006. For the first
time in the group's 13-year history, Williams was the only
AWP who refused to sign certificates the group issued and
instead, affixed his name to them with a rubber stamp.
But events developed that forced him to take notice of the
group.
In late 2006, one of the Lifer's Group sponsors
asked a prisoner to create a program for the Lifers' that
would target parole-eligible inmates.
The Parole
Commission had been paying more attention to the group
and would soon be having parole-eligible men sent to
Sumter to participate in the program.
In February 2007, a proposal for a transition-type
program was submitted to the Lifers' Board of Directors
and sponsor. At that point the prisoner who created the
proposal warned the board members not to forget Mr.
Williams. They all knew how difficult he could be. But
Williams was left out ofthe loop.
The Lifers" sponsor took the proposal to Secretary
McDonough and someone in central office sent an e-mail
to the warden at Sumter asking for input. The Warden and
the AWP were completely' in the dark regarding the
proposal. Left to handle the situation and develop a
response for his superiors in Tallahassee, Williams had
three members of the Lifers' Board of Directors and the
prisoner who created the proposal brought to his office.
Over a three-hour inquisition period, the AWP
allowed his anger to show as' he yelled, threatened, and
humiliated the prisoners. Williams talked about his "n--(testicles) being on the line" (a reference to his lack of
awareness about the proposal when asked for input from
his superiors), and said that before he allowed his "n ...
be cut off" he would "cut off all of (the prisoners') n .."
He threatened one of the men by saying he would have
him "shoveling snow in the Panhandle," Williams also
ranted that none of the prisoners were "safe at Sumter"
because he himself was not safe there either. As an
apparent reference to the investigation from Polk C.I.,
Williams pointed to some boxes on his office floor and
said that be keeps his "s.... packed." The meeting was
extremely hostile.
The result of that interview with the AWP was to
ban three of the prisoners from the Lifers' Group and the
prisoner who created the proposal was, in effect, placed on
house arrest for three weeks when he was then locked up
and transferred to an institution where his family could not
visit. Only one of the prisoners in the AWP's office that
day received no punishment.
Only a week before the proposal inquisition by the
AWP, the Lifers' Group was preparing to elect a new
president. On the evening of the election, the group's'

parliamentarian, who had been seen hugging the AWP at a
Black History Month program and claimed to be a college
fraternity brother to him, pointed out a prisoner in the
group. Those listening heard him say,. "This is the man
that Mr. Williams wants for president Don't you think
you should want him too?" That night the Lifers' "Group
13-year history of unimpeded elections ended. Mr.
Williams' puppet, the man who would not be punished the
next week at the proposal inquisition, became president of
the Lifers' Group.
Throughout. January and February of 2007, Mr.
Williams' baser instincts, combined with a lack of respect
for his staff, became more obvious. A newly-hired and
yet to be certified .female C.O.I. was taken out of the
donnitories and given the administrative duty of
accompanying the AWP, spending time in his office, and
running errands for him. The AWP could say that it had
nothing to do with her being a young, pretty, black female,
but staff openly grumbled about the assignment. Many
prisoners made lewd comments as the 2o-something-year
old C.O.I. accompanied the 60-something year old roughlooking Williams nearly everywhere he went.
It was also during the first months of 2007 that
Mr. Williams began taking command of the ICT. Where
previously duty was alternated between the Colonel, the
AWO, and others, Williams became a regular fixture on
the ICT. And hIS iron grip could only rival that of his onetime supervisor Donnie Simpson.
While sitting on the ICT, Williams' lack of
professionalism evidenced itself through his rough
language and his countermanding of announced team
decisions. The AWP routinely changed team decisions
after they were announced to the prisoners. He instituted
a mcial balance in the vocational classes and in both of
Sumter's P.R.I.D.E. facilities that prevented them from
hiring whites. And he told one black prisoner who had
asked for· help getting a job at P.R.I.D.E. that he
(Williams) would get him a job there as soon as he got
some of those "white boys" out of P.R.I.D.E. Suddenly,
because Mr. Williams, skills, TABE scores, and w~iting
lists no longer mattered with respect to placement in many
jobs at Sumter C.I.
At one ICTmeeting, after the prisoner's job
~ignment had been announced, the AWP loudly called
the prisoner's name and said, "If you f.,. _ this up, you
know what time it is'" The prisoner, and the others who
heard this, didn't know for sure what time it was other
than it was time for Secretary McDonough's
housecleaning to reach into Region III.
. 'I
The AWP also made rude, thuggish comments to
staff members.
One newly-promoted sergeant told
. inmates that, at his promotion ceremo'ny, after completion,
the AWP made rude comments regarding how the staff
member didn't deserve the promotion and that he, the
AWP, would "ave blocked it if could have. The sergeant

Florida Prison Legal Perspectives
added that the Colonel came to his aid verbally and
chastised the AWP for his rude comments.
As February 2006 unfolded, Mr. Williams
appointed a black school teacher to chair the Black
History Month committee (and notified everyone except
that teacher), and then he (Williams) and his "associate~'
Ms. Finger, micromanaged all programs that month. The
AWP constantly made demands on performers, berated
them for any perceived shortcomings, cursed at them. and
punished some who failed to meet his expectations.
One Hispanic prison who declined to sing in the
choir for Black History Month was fired from his job as
the Chapel janitor. Members of the Soul Band reported
,that the AWP cursed them for trying to ask questions
about his demands and threatened to transfer them if they
didn't perform to his expectations. One of them was
'
transferred the second week ofMarch.
Another prisoner, one who writes radical rap
lyrics with racial undertones auditioned one of his pieces
for the AWP. Williams correctly told the prisoner that the
piece was too radical to perform in front of the whitesincluded audience but added that the prisoner would be
welcomed to perform it at his (Williams') church.
The AWP constantly badgered performers during
the Black History Month programs, changing their duties
at the last minute, and threatening and cursing them. At
one point he went to the rec yard and ordered prisoners to
come in to the gym and participate or face disciplinary
action. He evicted members of the audience who failed to
give performers or speakers standing ovations, and
constantly begged outside speakers for donations in
public.
As February ended. word quickly spread that the
Warden was being swapped to Polk C.1. for Warden Don
Merritt. Prisoners and staff alike silently rejoiced; Merritt
had been the Warden at Polk when Mr. Williams was
forced to relocate, less than a year ago, to Sumter. Don
Merritt was known as a proactive Warden, a fair man, who
would allow no thuggish behavior from his staff.
Everyone prayed that Greg Williams was on his way out
of Sumter.
One department head who doesn't want to be
named said that "Greg Williams is self-destructing. It is
only a matter of time. but everyone believes it will be
soon," Hope exists.
Secretary McDonough has made it clear that he
will clean house. He showed this in Region 1 and parts of
Region II. Hopefully, he will discover the scattered
pockets . of corruption. unprofessionalism, thug
administrators, and misplaced officials in the system and
make some more changes. There is no place in a state
department for men such as Greg Williams. The sooner
he is gone, the sooner the department can begin to recover.
[Editor's Note:' The opinions expressed in the above
article are those of the author and not of FPLP or its staff.
However, FPLP does invite commentary and opinion

articles from its readers for possible publication. FPLP is
especially interested in "inside" information that is factual
and correct' about illegal activities and/or wrongdoing by
Mail containing
prison staff in Florida prisons.
confidential legal information may be sent to one of
'FPLAO's attorneys as "Legal Mail".' addressed to the
attorney, Florida Prisoners' Legal Aid Org., Inc.• PO Box
1511, Christmas, FL 32709-15'11] •
From tbe editor •••
Welcome, to a new issue of, FPLP. As you can see looking
through this issue, there have been some significant developments
since the last issue. Against most prison~rsl expectations, former
FDOC secretary James Crosby and his "good" buddy. former
regional director Allen Clark. were actually sentenced to prison for
one of the many crimes that they committed during. their tenures
with the department. One can only wonder, however. what charges
were dropped against them in exchange for their guilty plea to the
one charge. While several actors involved in their sentencing
expressed that '1ustice was done," it seems justice might have been
better served if the two had been charged and sentenced to serve
their time in a Florida state prison. Perhaps at Florida State Prison,
sharing the cell on X-Wing where Frank Valdes was murdered
under Crosby's watch. UnfortUnately, after the two did everything
in their poser to make it miserable for Florida prisoners throughout
their careers, they will probably do their time at a "county club"
federal prison. But at least there was a measure of justice, truly
signaling that things are changing.
And· then there was the incident at Hendry CI recently. A
prisoner beaten and choked by three ranking guards and a female
CO I. Because he had filed a grievance! No doubt, while he was
handcuffed behind his back, as it usually happens. Not that
uncommon an incident at many Florida prisons., What was
uncommon was a guard with enough integrity to report the incident
and, finally, a secretary who knows what must be done to promote
responsibility, !lccountability" and professionalism. But as Mr.
McDonough knows, it is going to take more work to weed out
elements and, a culture ofcorruption and abuse that took decades to
develop.
'
At the same time that the incident was happening,at Hendry CI
I was going through an experience myself. Without any apparent
reason, I and 28 other prisoners were packed up and transferred
from Sumter CI and scattered out to institutions around the state,
most further from our families. I, along with a few other guys,
wound up after a I 1/2 week transfer through two reception
centers, at Mayo CI. rll write more about that experience and my
new location in a future issue.
'
For now, I won't ask you to "enjoy" this issue, but it is hoped
the information herein is interesting and useful. If you are not a
member of FPLP's parent organization, FPLAO, I urge you to
become a member and encourage others to join. Every member
receives FPLP. If you are a member and haven't made a donation
recently, please consider doing so. Your support is what makes it
all possible.
I wish all FPLP readers the best. And to my fellow prisoners: I
~e you to stay strong, be respectful to yourself and others, and
stlive to be a good person- changed from what we once 'were.
Later. Bob Posey, Editor
.

9

Florida Prison Legal Perspectives

POST CONVICTION
CORNER

"
I,
•

by Loren Rhotoll, EIq.

As has been 4iscussed numerous times in previous articles, there are
important periods of limitations 'to keep in mind with any postconviction case. In
many cases, once the periods of limitations lapse, a criminal defendant will be
unable to successfully pursue what may have once been viable collateral remedies.
Nevertheless, even with older cases there can still be avenues for relief.
Sometimes, even when the two ye~ p~riod of limitations for filing a Rule 3.850
motion has lapsed, an attack on the legality of a sentence itself can still result in
positive resultS. An illegal sentence can be attacked at any time.. See Florida Rule
of Criminal Procedure 3.&00(a). The focus of this article will be possible
collateral attacks on illegal habitual felony offender sentences.
One such situation where an older sentence can be corrected years later
relates to the legality of the habitual violent felony offender statutes in effect from
October 1, 1989 through May 2, 1991. In State v. Johnson, 616 So.2d 1 (Fla
1993), the Florida Supreme Court ruled that amendments to the' Florida Habitual
Felony Offender Statute in effect from October I, 1989 thro\.lgh May 2, 1991, was
unconstitutional in violation of the Florida Constitution's single subject
requirement. The' amendments in question specifically added the habitual violent
felony offender category for any defendant who was previously convicted of
aggravated battery. The upshot ofJohnson ~s that any habitual violent felony
offender sentence, based upon a prior offense of aggravated battery, which was
imposed for an offense occurring within the window period (October 1, 1989
through May 2, 199 I) is illegal and should be corrected.
Consideringthe fact that habitual violent felony offender seIi~ences can be
substantially enhanced, the correction ofthe illegal sentence could result in
significant reductions of lengthy sentences. An attack on an illegal sentence per
Johnson should be pursued under a Rule 3.800(a) motion to correct illegal
sentence. There is no period of limitations for the correction of such an illegal.
sentence so the motion would not be time barred.

10

Another improper habitualization situation which my office has seen just
recently relates to the imposition of habitual offender sentences on capital offenses
(i.e., first degree murder or capital sexual battery). See Mishoe v. State, 601 So.2d

Florida Prison Legal Perspectives

1284 (Fla. 5th DCA 1992) [habitual violent felony offender does not apply to
capital offenses]; and, McClain v. State, 612 So.2d 664 (Fla. 2nd DCA, 1993)
[capital felonies are not subject to enhancement provisions of habitual felony
offender statute]. Also, any habitual offender sentences imposed on life felonies
which occurred prior to October1, 1995, do qualifY for correction under Rule
3.800(a) as illegal sentences. See, Nathan'v. State, 689 So.2d 1189,jh.4 (Fla. 2 nd
DCA 1997). If qualifYing capital or life felony offenses have been habitualized
then they should be corrected. The removal of the habitual designation can result
in potentially reduced sentences.
Another situation to keep an eye out for is the imposition of consecutive
habitual and nonhabitual sentences in a case where the offenses arose out of a
single criminal episode. In this scenario, when a court impose~ a habitual offender
sentence, it cannot impose a consecutive non-habitual offender sentence. Once the
court lengthens a sentence under the habitual offender statute, it cannot further
lengthen it by making sentences consecutive. See, Dawson v. State, 32 F.L.~. D590
(Fla. SthDCA 2007).
The above scenarios are but a few legitimate collateral attacks on older,
otherwise time-barred, cases. Illegal habitual offender sentences certainly are not.
limited to the situations addressed above. The above are merely illustrative of the
fact tha;t even with older cases, there still can be opportunities to collaterally attack
and reduce sentences. Other important cases to consider as far as illegal '
habitualization of a sentence are: Young v. State, 716 So.2d 280, 281 (Fla. 2nd '
DCA, 1998) [convictions for life felonies occurring prior to October 1, 1995, are
not subject to habitual violent offender treatment under section 775.084(4),
Florida Statutes (1989)]; Lee v. State 731 So.2d 71 (Fla. 2nd DCA, 1999) [Ifa
defendant who has been sentenced as a habitual offender can pro~e that his prior
offenses do not qualifY him as a habitual offender, he will have established that his
sentence is illegal]; Ford v. State. 652 So.2d 1236 (Fla. 151 DCA, 1995) [Habitual
offender sentence could not be based on prior convictions that were all entered on
same date; sequential ,convictions were required to support habitual offender
status]; Johnson v. State, 795 So.2d 1085 (Fla. 2nd DCA, 2001) [Movant who
received a habitual violent felony offender sentence for armed robbery was
entitled to hearing on motion to correct illegal sentence based on his contenti~n
that, under sentencing statute in effect in 1995, it was improper to count.prior
convictions fQr which he was placed on community control and adjudication was
withheld].
Any of the above-addresseq ~ituations mayor may not apply to any given
case. They are cited for the purposes of illustration. If you do have an
habitualized sentence, it is advisable to thoroughly investigate the legality of said
sentence. lithe habitualization has occurred illegally, there may be viable
but not limited to) those addressed herein, to collaterally attack
grounds, such
your sentence. 0 '

as.

11

Florida Prison Legal Pe~pectives

David W. Collins, Attorney at Law
Fc;>rm.er state prosecutor with more than 20 years of criminal law experience
"AV" rated by Martindale-Hubbell Bar register of Preeminent Lawyers
Your voice in Tallahassee representing prisoners in all areas of post-conviction relief:
" Appeals
Plea Bargain Rights
3.800 Motions
Sentencing and Scoresheet Errors
3.850 Motions·
Green, Tripp, Karchesky, Beggs cases
State' and Federal Habeas Corpus
Jail-time Credit Issues ,
Writs of Mandamus
Gain-time Eligibility Issues
Clemency
Habitualization Issues
Probation Revocation Issues
Write me today about your case!
David W. Collins. Esquire
P.O. Box 541
Monticello. FL 32345
(850)99~-8111

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ask me to send you free written information about my qualifications and experience."

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Florida Prison Legal Perspectives

The following are summaries ofrecent state andfederal cases that may be useful to or have a significant impact on Florida prisoners.
Readers should always read the[ull opinion as published in the Florida Law Weekly (Fla. L. WeeKly); Florida'Law Weekly Federal
(Flo. L. Weekly Federal); Southern Reporter U(Sa. 2d); Supreme Court Reporter (S. Ct.): Federal Reporter 3d (F.3d): or the
Federal Supplement 2d (F.Supp. 2d), since these summaries are for general information only.
. and United States v. Booker, 543
U.S. 220 (2005).
.
COURT
After it explained those cases
Cunningham v. California, 20 . and opinions, in Cunningham, the
U.S. Supreme Court held that the
FIa.L.Weekly Fed. S67 (1/22/07)
California
DSL, by placing sentenceJohn Cunningham, pursuant
elevating
fact-finding within the
to a certiorari petition; presented the
.
judge's
province,
violates
a
U.S. Supreme Court with the
defendant's
right
to
trial
by
jury
question of whether California's
safeguarded by the Sixth and
determinate sentencing law (DSL),
Fourteenth Amendments.
which places sentence-elevating factTherefore, on that issue,
finding within.the sentencing judge's
Cunningham's
case was reversed in
province, violates a defendant's right
part,
and
remanded
for further
to trial by jury as safe-guarded by the
proceedings
consistent
with
the U~S.
Sixth and Fourteenth Amendments.
Supreme
Court's
opinion.
In Cunningham's particular
case, the offense he was convicted
Lawrence
v.
Florida,
20
of, under California's OSL, provides
Fla.L.Weekly
Fed.
S84
(2120/07)
a punishment by one of three precise
Gary
Lawrence
sought
terms of imprisonment: a lower term
in
the
U.S.
Supreme
certiorari
review
of 6 years, a middle term of 12 years,
Court presenting, in pertinent part,
or an upper tern of 16 years. The
the question of whether time in
DSL obliges the judge to sentence a
seeking certiorari review from the
defendant to the middle 12 year term,
denial of state post-conviction relief
unless the judge finds one or more
tolls the one-year statute of
additional
"circumstances
in
limitations for seeking federal habeas
. aggravation." (In California's Rules
corpus
relief.
of Court
"circumstances
in
The U.S. Supreme Court
aggravation" are defined as facts that
answered
and held the one-year
justify the upper term. Those facts,
statute
of
limitations for seeking
the Rules provide, must be
federal
habeas
corpus relief from a
established by a preponderance of
state
court
judgment
was not tolled
the evidence.) Based on a post-trial
during
the
pendency
of
a petition for
sentencing hearing, the judge found
certiorari
to
the
U.S.
Supreme
Court
six of such aggravating facts and
seeking
review
of
a
denial
·of
state
sentenced Cunningham to the upper
post-conviction
relief.
term of 16 years imprisonment. Both
California's Appeal Court and State
Supreme
Court
upheld
the
SUPREME
COURT
OF
sentencing.
FLORIDA
On review, the U.S. Supreme
. Court cited to its decisions in
Apprendi v. New Jersey, 530 U.S.
In Re: Standard Jury Instructions In
466 (2000); Ring v. Arizona, 536
Criminal Cases (2006-3) 32
U.S. . 584 (2002); Blakely v.
Fla.L.Weekly S49 (Fla. 1125i07)
Washington, 542 U.S. ~96 (2004);

UNITED STATES SUPREME

The
Supreme
Court
Committee on . Standard Jury
Instructions in Criminal Cases (the
Committee) petitioned the Florida
Supreme Court to amend the Florida
Standard Jury Instructions in
Criminal Cases.
The amendment, proposed
Dec. 14, 2006, and filed under
Report No. 2006-03. regarded the.
Standard Jury InstnJction in Criminal
case 3.6 (g~Justifiable use of NonDeadly Force.' . The Committee
recommended to: (1) delete the
words "beyond a reasonable doubt"
where they appear in two places of
the instruction; (2) to add language to
the directions as to when the part of
the instruction concerning when the
use of non-deadly force is not
justified, so as to clarify that it
should be given only when the
defendant has been charged with
more than one forcible felony,
pursuant to the decision in Giles v.
State, 831 So.2d 1263 (Fla. 41h DCA
2002); and (3) to update the
instruction's history contained in the
"Comment"
section
of
the
instruction. .
.
After consideration of the
Committee's report and its motion to
expedite proceedings in the cause,
the Florida Supreme Court granted
the motion and authorized the
publication and use of the revised
instructions.

Gaston v. State, 32 Fla.L.Weekly
S78 (Fla. 2/8/07)
Mario' Gaston sought review
of the Third District Court of
Appeal's decision in State v. Gaston,
911 So.id 257 (Fla. 3d OCA 2005),
because it was in conflict with the
decision made in Green v. State, 895

13

Florida Prison Legal Perspectives
So.2d 441 (Fla. 4th DCA 2005),
quashed in 944 So.2d 208 (Fla.
2006). '
In the trial court, Gaston had
sought to withdraw his guilty plea of
carrying a concealed fireann that was
entered a decade earlier. Gaston had
asserted in his motion that the trial
court did not advise him his plea
might subject him to deportation and
that he was subsequently advised by
an immigration attorney that he was
subjected to deportation proceedings
if he applied for residency. The trial
court granted Gaston's motion to
withdraw his plea and the State
appealed.
On appeal in the Third
District the trial court's order was
reversed, where it was opined that
Gaston had not stated a prima facie
case by pleading that he was
specifically
threatened
with
deportation because of his. plea,.thus
issued the certified conflict with
Green.
Florida Supreme Court
in Peartv. State, 756 So.2d 42 (Fla.
2000), had held that a defendant
"must be threatened with deportation
resulting from the plea" to establish
prejudice arising from a trial court's
failure to advise defendant of
deportation consequences in entering
a plea. However, in Green, the Fla.
Supreme Court receded from that
statement and instead, held that
"henceforth, it is the fact 'that the
plea subjects the defendant to
deportation, rather' than a specific
threat ofdeportation, that establishes
prejudice."
The Third District had
applied the Peart standard instead of
the corrected standard in Green when
it
reversed
Gaston's
case.
Accordingly,. the Third District's
decision was quashed and Gaston's
for
case
was
remanded
reconsideration in light ofthe Florida
Supre~e Court's decision in Green.

The

In Re: Amendments To Florida Rule
of Criminal Procedure, Rule 3.800,
32 Fla.L.Weekly S78 (Fla. 2/8/07)

14

On its own motion, the
Florida Supreme Court amended
Rule 3.800(a).
The amendment
added the requirement that an order
denying a motion to correct an illegal
sentence under Rule 3.800(a)
expressly state that the movant has
the right to appeal within thirty days
of rendition of the order.
All
comments that the Florida Supreme
Court received regarding the
amendment were in support of the
addition.
Accordingly, Rule 3.800(a)
was amended and became effective
immediately upon the release of the
opinion.

DISTRICT

COURTS

OF

APPEAL
Brooks v. Fla. Parole Commission,
32 FIa.L.Weekly 03 (Fla. 1st DCA
12/19/06)
. Alphonso Brooks appealed
the denial from a circuit court
regarding his mandamus petition
that challenged the Florida Parole
Commission's decision to suspend
his
presumptive parole release date and
not to authorize his effective parole
release date. The circuit court had
further ordered a lien to be placed on
his prison account for the mandamus
filing :'ees.
On appeal, the appellate
court found no merit in Brooks~
claims regarding the lower court's
order of denial. However, it was
found that Brooks' argument that he
is exempt from the placement of a
lien on his prison account did require
Brooks' be granted relief on that
issue. The appellate court agreed
with Brooks,' in that his challenge
was a collateral criminal proceeding
, and the prison indigency lien
provision did not apply. Brooks'
position is supported by Spaziano v.
Fla,
Parole Commission, 31
Fla.L.Weekly DI597b (Fla. lsi DCA
2006).
Accordingly, to the extent of
the lien issue, the cause was reversed
and remanded, with instructions to

the lower court to remove the lien
from Brooks' prison account.
[Note:
Also See other recently
decided cases similar to Brooks' case
regarding
Parole
Commission
challenged issues being exempt from
the prison indigency statute's lien
provision: Miller v. Flo. Parole
Comm 'n, 32 Fla.L.Weekly 0423
(Fla. 151 DCA 2/8/07); Jones v. Fla.
Parole Comm 'n, 32 Fla.L.Weekly
D131 (Fla. IsI DCA 12128/06);
Anderson v. Flo. Parole Comm 'n, 32
Fla.L.Weekly 0133 (Fla. lsi DCA
12/28/06)J.

Nolin v. Stale, 32 FIa.L.Weekly 027
(Fla. 2d DCA 12/20/07) .
Ralph
Marvin
Nolin
appealed his judgment and sentence
, based on his contentions that the trial
court erred in denying his dispositive
motion to suppress cannabis seized
from a warrantless search.
In the trial court, during the
suppression hearing, an Officer
Rogers testified that he, had
resp<lnded to the Nolin's residence
based on a domestic disturbance
dispatch, issued in. response to a
neighbor's call. Upon arriving at the
residence he heard doors being
slammed within the area of Nolin's
home. Officer Rogers stated that he
then proceeded to the backyard area
where he observed evidence of
broken glassware and when he
looked into the porch area to the
inside of the backdoor "everything
looked fine."
Subsequent
to
Officer
Rogers arriving at the Nolin's home,
two other officers had arrived alsO.
It was testified that when they
arrived they heard incoherent
screaming. When they Iptocked and
announced their presence, they ~
that all sounds, within the home
stopped. Because the "sounds" of
this silence was disturbing to the
officers, it was decided they do a
welfare check. To implement the
welfare check, the officers entered
through the porch area where'Officer
Rogers used a "multipurpose tool" to

Florida Prison Legal Perspectives
unlock the back door. Inside, the
officers found the Nolins and while
two . officers spoke with them,
another officer
performed
a
nonconsensual protective sWeep of
the home. Subsequently, in another
room adjacent to or near the room
where the Nolins were found,
cannabis was discovered on a
dresser.
On appeal, it was noted that
"It is a basic principle of Fourth
Amendment law that searches and
seizures inside a home without a
warrant
are
presumptively
unreasonable." See: Payton v. New
York, 445 U.S. 573, 586 (1980). It
was opined however, that because
there was a compelling need to check
on the ·welfare of the Nolins, the
officers' initial warrantless entry was
lawful. Once the seed of concern for
the Nolins' welfare was dispelled,
there was no justification to conduct
a more intrusive search, which
produced the; cannabis. The search
that revealed the cannabis was
clearly outside the parameters
authorized by Maryland v. Buie, 494
U.S. 325 (1990).
.
Therefore, the appellate
court found that suppression of ~e
physical evidence was required, and
ordered Nolin's conviction and
sentence .to be reversed and the case
remanded
with
directions
to
discharge Mr. Nolin.
Damiano v. State, 32 D30 (Fla. 4th
DCA 12120/06)
Charles
A.
Damiano
presented an issue to the appellate
court where a circuit court had resentenced him, imposing an upward
departure sentence based on a prior
conviction that had been already
considered in the calculation of the
presumptive guidelines sentence.
During
Damiano's
resentencing, his prior criminal
record, including a prior conviction
for robbery with a.firearm (which the
lower court based its upward
departure on), was factored into his
presumptive guideline sentence
score. As a written justification for

departing from the guidelines, as
aggravating circumstances, the lower
court checked the block on the
standard sentencing form that
provides: Primary offense is scored·
at level 7 or higher and the defendant
has been convicted of one or more
offenses that scored, or would have
scored, at an .offense level or 9 or
higher. Damiano objected to the
departure sentence and appealed.
The applicable principles for
departure sentences based on
aggravating circumstances are: A
trial court may impose such
departure only when a defendant's
conduct "is' so extraordinary or
egregious as to be beyond the
ordinary case."
See:
State v.
McCall, 524 So.2d 663, 665 (Fla.
1988). "Moreover, where factors are
already taken into account in
calculating a guidelines score, those
same factors may not also be used as
aggravating circumstances for a
departure sentence." See: Brown v.
State, 763 So.2d 1190, 1192 (Fla. 4th
DCA 2000). As the First District of
Florida has explained, "we find a
lack of logic in considering a factor
to be an aggravation allowing
departure from the guidelines when
the same factor is included in the
guidelines for purposes of furthering
the goal of uniformity." See: Burch
v. State, 462 So.2d 548, 549 (Fla. 1st
DCA 1985), approved in Hendrix v.
State, 415 So.2d 1218, 1220 ·(Fla.
1985).
.
In other words, Damiano's
prior robbery conviction was Counted
against him in determining - his
presumptive guidelines Score and
then again for purposes of upward
departure.
The appellate court
opined that not only was this logic
rejected by it in Brown, but also by
the Second District in State v.
Valdes, 842 So.2d 859, 861 (Fla.2d
DCA
2003)
("The _[Florida
Sentencing] guidelines have factored
in prior criminal records in order to
-arrive at a presumptive sentence...To
allow the trial judge to depart from
the guidelines based upon a factor
which has already been weighed in

arriving at a presumptive sentence
would in effect be counting the
convictions twice which is contrary
to the spirit and intent of the
guidelines." (quoting Hendrix, 47~
So.2d at 1219120».
Acco.rdingly, and based on
Brown, Damiano's upward departure
sentence was quashed and the case
was remanded back to the trial court
for imposition of a guidelines
sentence.
Scott
v. _ McDonough,
32
Fla.L.Weekly 077 (Fla. 1st DCA
12121/06)
In Charles Scott's appeal of
his mandamus petition dismissal, the
appellate court found no error in the "
circuit court's decision to impose
liens and
partial
prepayment..
obligations against Scott's inmate' .
trust account.
'\
Scott argued that the lower'.
court was in error to dismiss his
petition when failed to comply with
the order requiring him to prepay
$9.00 in costs and fees pursuant ~p
section 57.085, Florida Statutes.
However, Scott's mandamus petition
merely sought to compel the
Department of Corrections to address
the merits of his administrative
grievance appeal, which the DOC
had deemed untimely.
. The appellate court opined
that the mandamus proceeding could
not, in any way. directly affect
Scott's tirye in prison. In Schmidt v.
Crusoe, 878 So.2d 361, 367 (Fla.
2003), it was held that an action _
which directly affects an inmate's
time in prison is collateral criminal in
nature and is not subject to the
Prisoner
Indigency
Statue..
Therefore, it was found that Scott's
petition did not qualify as a collateral
criminal proceeding, and the'
imposition of the -liens and
prepayment obligations under section
57.085(4) and (5), Florida Statutes,
was appropriate.
Scott's second point - on
appeal, however, was found to have
merit. The appellate court opined
that it was error for the circuit court
' .

~

IS

Florida Prison Legal Penpeetives
to dismiss an action for failure to

prepay fees and coSts where a lien
placed by the DOC prevents the
inmate from complying with the
prepayment obligations.
See:
Harper v. Moore, 737 So.2d 1232
(Fla. 1st DCA 1999); and Huffman v.
Moore, 778 So.2d 411 (Fla. 200 I).
Scott was unable to make the
prepayment because, and the account
record showed, every withdrawal
was made by DOC to satisfy the lien,
leaving nothing for Scott to withdraw
to comply with the partial
prepayment obligation.
As a result, the lower court's
order of dismissal, because Scott
failed to comply with his prepayment
obligations, was reversed and the
case was remanded with directions
for the· lower court to determine
whether Scott had funds available for
the prepayment required.

AI-Hakim

v.

McDonough,

32

Fla.L.Weekly· 088 (Fla. 1It DCA
12122/06)
Marzug AI-Hakim presented
the appellate court with a mandamus
petition dismis.sal in which the lower
court deemed it as unauthorized on
the ground that his claim was
required to be raised by a rule 3.850
motion.
AI-Hakim's
mandamus
petition alleged his challenge was to
the Deparbnent of· Corrections'
interpretation of the· sentences
previously imposed, i.e., the amount
of jail credit which the DOC applied
to AI-Hakim's concurrent sentences.
As such, the appellate court opined
that mandamus was _the proper
remedy. See: Green v. Moore, 777
So.2d 425, 426 (Fla. lit DCA 2000).
Accordingly, the circuit
.court's order of dismissal was
reversed and AI-Hakim's cause was
remanded with directions for the
lower court to. address the merits of
the mandamus petition.

Jackson v. Slale, 32 Fla.L.Weekly

0112 (Fla. 4th DCA 12127/06)
In Donell Jackson's case, the
16 Fourth District has taken it closer

look at its opinion in Jolmson v.
Moore, 744 So.2d 1042 (Fla. 4th
DCA 1999), and has receded from
that decision.
In Johnson, the appellate
court had opined that where a
defendant whose counsel has
Anders
v.
withdrawn
under
California, 386 U.S. 738 (1967), and
who has failed to file his own brief,
cannot seek relief for ineffective
assistance ofcounsel.
Jackson, after his appellate
counsel had withdrawn from the
under Anders, failed to file his own
initial brief to identifY any matter he
felt should be addressed. After an
independent review of Jackson's
appeal and fmding no basis for a
reversal,
the
appellate
court
dismissed the appeal. Then Jackson
filed a petition that alleged
ineffective assistance of appellate
counsel.
In deciding to accept review
of Jackson's petition, the appellate
court had noted that the two .of its
sister courts has disagreed with the
Johnson decision. See: Hollinger v.
Slate, 749 So.2d 534, 535 (Fla. 5th
DCA 1999) and Barber v. Slale, 918
So.2d 1013 (Fla. 2d DCA 2006).
Thus, in light of those courts'
opinion, review on the merits of
Jackson's petition was accepted.
And, although ·it denied the petition,
under Jackson's case the Fourth
District. Court of Appeal· has receded
from its decision in Johnson.

Pehringer.

v.

McDonough,

32

Fla.L.Weekly 0131 (Fla. 1st DCA
12/28/06)
Frank W. Pehringer sought
certiorari review of a mandamus
petition denial where he had
challenged the outcome of a prison
disciplinary proceeding that charged
him with unauthorized use of drugs
after a "for cause" drug test.
of
The
Deparbnent
Corrections' (DOC) disciplinary
report against Pehringer alleged that
the
"for cause"
drug
test
administered to him yielded. a
positive result for the presence of

cocaine. In the denial of Pehringer's
mandamus petition, the circuit court
found that the symptoms observed
and alleged by DOC officials, prior
to testing Pehringer, were sufficient
to establish a basis for administering
a "for causett test. It was further
found that the fact the incident report
describing the, symptoms of
Pehringer, as observed, was not
prepared before Jesting (as Pehringer
argued was an etror), did not entitle
relief from the disciplinary action.
On certiorari review, the
appellate court agreed with the above
circuit court's findings. However,
Pehringer had also contended that
DOC officials failed to comply with
mandatory testing procedures set
forth in their own rules, which the
appellate court opined did have merit
for relief.
In Florida. Administrative
Code, rule 33-108.101(3)(b)(6),
describing "specimen collection
procedures," it is provided that "The
teSter shall give each inmate a closed
specimen cup with an identification
la~elcontaining the inmate's. name
and DC number prior to collecting
the inmate's urine specimen. The
tester shall ensure that the inmate
acknowledges his or her correct
identity information on the label of
the specimen cup."
Pehringer had claimed from
the beginning of his challenge that
DOC officials provided him with an
un-labeled specimen cup. Although
this
was asserted throughout
Pehringer's challenge process, DOC
had declined to ever address the
allegation. Thus, it was conclu~ed
that the .boilerplate denial of an
allegation, declined to be addressed
in either the disciplinary proceedings
or the administrative grievance
process, was insufficient to raise a
and
material
issue of fact,
Pehringer's factual allegation in such
regard should have been deemed 10

be admitted as true.
As a result, it was found that
DOC's failure to comply with its
own rule governing specimen
collection
encroached
upon

Florida Prison Legal Perspectives
,

.

Loren D. Rhoton

PostconvictionAttorney
I
I----....-..-------•
•
•
•
•
•

.

.

Direct Appeals .
Belated Appeals
Rule 3.850 Motions,
Sentence Corrections
New Trials
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412 East Madison Street, Suite 1111
Tampa, Florida 33602
(813) 226-3138
Fax (813) 221-2182
Email: lorenrhoton@rhotonpostconviction.com
Website: www~rhotonpostconviction.com

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,
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r

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,A Compilation ofSelected Postconviction Corner Articles
A collection' of Loren Rhoton's Postconviction Corner articles is now available in one
convenient book geared towards Florida inmates seeking justice in their cases. Insights base
on professional experience, case citations, and references to the relevant rules of procedure'
are provided. This book is specifically directed toward those pursuing postconviction relief.

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17

Florida Prison Legal Perspectives
Pehringer's due process rights in the
ensued disciplinllI)' proceeding. See:
White v.Moore, 789 So.2d 1118
(Fla. 1st DCA 2001).
. Accordingly,
the
order
denying Pehringer's .mandamus
petition was quashed, and the matter
was remanded for the circuit court to
conduct
further
proceedings
consistent with the appellate court's
opinion.
[Editor's Note:
The potential
ramifications of the appeal court's
holding in this case could be
significant in prison disciplinllI)'
challenge cases. Law clerks and
other prison
litigators should
familiarize themselves with this
case-bp.}

Esquivel

v.

McDonough,

32

Fla.L.Weekly D192 (Fla. lSI DCA
1/5/07) .
Juan Leal Esquivel appealed
an order that dismissed his
mandamus petition for failure to pay
a partial filing fee of $6.00 where he
had sought to compel the Department
of Corrections to permit visits from
his minor sons.
Esquivel had initially filed
his petition in the appellate court on
May 14, 2002, where it issued a
certificate
of
indigency
and
transferred the case to the proper
circuit court. On September 26,
2002, the lower court dismissed the
case because Esquivel had not filed a
document the lower court considered
necessary in. order to determine
whether Esquivel was indigent.
Esquivel appealed and the appellate
court reversed, stating it had
previously issued the certificate of
indigency in the case, and because
there was no showing Esquivel's
status as indigent had changed, and
opined dismissal of the petition was
unwarrahted. Thus, the case was
remanded for the lower court to
reconsider the question of Esquivel's
indigency. See: Esquivel v. Fla.
Dep't o/Con'., 866 So.2d 156 (Fla.
151 DCA 2004).

18

On March 12, 2004, the
lower court determined Esquivel
indigent, but he was able to pay part
of his costs and fees and it directed
him to a prepayment of $6.00 within
a 30 day period or dismissal of the
petition would occur.
Esquivel
sought certiorari review in the
appellate court claiming he could not
pay the $6.00, and attached a record
of his inmate account that showed a
zero balance back to November
2003. Review was denied without
comment on November 3, 2004.
See: .Esquivel v. Fla. Dep't ofCon'.,
867 So.2d 331 (Fla. 1st DCA 2004).
On January to, 2005,
Esquivel's petition was dismissed by
the lower court because of the failure
to pay the $6.00 prepayment.
Esquivel claimed on appeal that his
prison account has shown that he
had no ability to pay even the
nominal amount of$6.00.
In Esquivel's initial filings,
May 14, 2002, his family had been
sending as much as $40.00 a month,
thus the lower court finding the
ability for Esquivel to pay the
prepayment of $6.00, which was not
decided until March 2004. Thus, the
lower court was basing its decision
on the account record from 2 t
months earlier, and dismissed the.
petition relying on two and one half
year old information.
The
appellate
court
explained that when an inmate is
required to pay part of the costs and
fees related to litigation, section
57.085(4), Florida Statues (2004),
provides:
"The initial partial
payment must total' at least 20
percent .of the average months
balance of the prisoners' trust
account for the preceding 6 months
or the length of the prisoner's
incarceration, whichever period is
shorter."
The
appellate
court
concluded that the basis for a partial
payment, or for dismissal because of
failure to pay, the ability to pay must
be found in the six-month period
preceding the court's determination,
rather than the six months that had

preceded the initial filing in the
court, which in Esquivel's case was
21 months earlier.
Esquivel's case was reversed
remanded
for
further
and
proceedings.

. Mar/oral v. State, 32 Fla.L.Weekly
D228 (Fla. 4th DCA 1/17/07)
Martin Martoral appealed the
circuit· court's decision that revoked
his probation because he had
changed rooms within a hotel at
which he had been Jiving and
possession of cannabis discovered in
a vehicle, in which he was found .
sitting with another person (with no
evidence establishing the vehicle was
owned or even regularly driven by
him).
On appeal, the appellate
court agreed
with
Martoral's
contentions
that
there
was
insufficient evidence to support
revoking his probation. No evidence
in the record 'found Martoral was
aware that the changing rooms
within the hotel he was living would
trigger his obligations regarding a
change of address.
Thus, no
evidence was estB.blished for a
"willful" violation.
In regard to the cannabis
issue, the evidence produced was
insufficient to
prove
by a
preponderance of evidence that
Martoral hlld dominion and control
over the baggie of marijuana found
in the dashboard compartment in a
vehicle he was sitting in with another
person.
As a result, the lower court's
violation order' and the imposed
sentence were reversed and the case
was
remanded
for
further
proceedings.

Del/ofano v. State, 32 Fla.L.Weekly
D251 (Fla. 5th DCA 1/19/07)
Michael Dellofano sought
review of a summllI)' denial of his
"Motion for Judicial Enforcement of
Plea Agreement and Sentence
Intent."
Dellofano contended that the
sentence that was imposed upon the

Florida Prison Legal Perspectives
revocation of his probation was
pursuant to a negotiated plea, but that
intent of the parties involved and the
sentencing court was thwarted by the'
of
Corrections'
Department
forfeiture of his previously earned
gain-time.
Dellofano'further
contended that had he known he
must serve additional time, he would
not have pled guilty to the violation.
As such, Dellofano sought in the
lower court to be resentenced. minus
the amount of days DOC forfeited.
In denying relief, the lower
court cited to section 944.28(1).
Florida Statutes, where it authorizes
DOC to forfeit· all gain-time. The
lower court advised Dellofano that
he should seek to challenge the
DOC's forfeiture of the gain-time
through the administrative grievance
procedure because such forfeiture
was beyond the court's control.
On appeal. it was noted that
the DOC may revoke gain-time
without being countermanded by a
court.
However. such forfeiture
cannot thwart the terms contemplated
in a plea agreement. See: Bfl17Iett v.
State. 933 So.2d 1269 (Fla. Sib DCA
. 2006); Dellahoy v. State. 816 So.2d
1253 (Fla. 5th DCA 2002). '
Accordingly, the trial court's
denial of Dellofano's claim was
vacated and the case remanded for a
reconsideration.
It was further
instructed that if Dellofano's
allegations are found to be true, the
trial court' should either resentence
him in a manner that effectuates the
plea agreement after considering the
DOC forfeiture of gain-time. or
allow him to withdraw his plea.
[Note: Judge' J. Lawson specially
toncurred in the opinion of this case
and noted, though. that there are no
provisions in the' Florida Rules of
Criminal Procedure for Dellofano's
styled motion (Motion for Judicial
Enforcement of Plea Agreement and
Sentence Intent). He opined that
such issues should be filed under
Rule 3.8~0. See: Cichoski v. State,
817 So.2d 695 (Fla. 4lh DCA 2004).
ludge Lawson further opined, noting

Dellofano's motion had been filed
under oath. that the lower court
should have treated it as a rule 3~850
motion. anyway.]

Stokes v: Florida Department of
Corrections, 32 Fla.L.Weekly 0242
(Fla. 1It DCA 1/19/07)
Robert M. Stokes, a Florida
prisoner, sought certiorari review in
the appellate court of a circuit court's
order denying e~ordinary relief
from a disciplinary action that
charged him with self-mutilation.
which he claimed was a suicide
attempt.
,
Stokes had sought review of
his
exhausted
administrative
of
the
cha~lenged
remedies
disciplinary action by filing in the
circuit court a petition for writ of
certiorari. That petition was properly
construed by the, lower court as a
mandamus petition. See: Wou//ard
v. Bishop, 734 So.2d 1151, 1152
(Fla. 1!11 DCA 1999) (where it was
explained that a mandamus petition
. is the proper vehicle for review of
prison disciplinary proceedings).
The circuit court denied
Stokes relief because it opined that
he failed to timely file a grievance
with prison officials that raise~ the
issue of whether a charge for selfmutilation could have been brought
against Stokes without a prior
determination his conduct (cutting
his forearm) was not a suicide
attempt
Also, the lower court'
erroneously ordered a lien to be
placed on Stokes' prison account for
filing fees. See: Schmidt v. Crusoe.
878 So.2d 361 (Fla. 2003).
On certiorari review in the
appell~ court, it was noted that
Florida Administrative Code,' rule
33-601.314, section 9-30. which
proscribes the infraction of selfmutilation, defmes such as including
"self-disfigurement such as body
piercing, scarring, and other non-life
threatening acts." The rule also
.ord]etermination of
provides,
whether .an act constitutes selfmutilation as opposed to a suicide

attempt sha// be made by health care'
stq[f." (emphasis added)
The appellate court found
that Stokes' timely grievances did, in
fact, raise his issue properly through
the administrative procedures. It was
further opined that to the extent the
circuit court found any failure on
DOC's part to abide by its rule to be
a 'de minimus violation erroneous.
Such requirement that determination
be made by "health care staff' is an
essential one, and DOC, as a state
agency, is bound by its own rules.
See:
Marrero v. Department of
Professional Regulation, 622 So.2d
1109, 1112 (Fla. 1" DCA 1993).
Therefore, Stokes' petition
was granted, the lower court's order
of denial was quashed, and the case
was
remanded
for. further
proceedings.
Also, the order
imposing the lien against Stokes'
prison account was quashed, and the
lower court was instructed to restore
aily funds taken due to that lien.
Lincoln v. State, 32 Fla.L.Weekly
0252 (Fla. 5th DCA 1/19/07)
In Dana Lincoln's case, the
appellate court clarified its order that
found Lincoln's petition for belated
appeal to be insufficient.
Upon granting Lincoln's
motion for clarification of its order,
the appellate court withdrew its
original order and substituted a new
order that clarified its decision.
The appellate court opined in
its new order that although Lincoln's
petition for belated appeal alleged
that his trial cOl,lnsel was requested
and failed to file a notice of appeal
on his behalf, it was not alleged when
Lincoln made such a request. Thus,
the appellate court was unable to
make a determination whether the
request was timely made to file the
notice of appeal.
As such, Lincoln's petition
was found to be facially insufficient.

Hartley v. State, 32 Fla.L.Weekly
0256 (Fla. 2d DCA 1/19/07)
Stephen Hartley app~aled the
denial of his rule 3.850 motion
because. as the lower court opined,

19

Florida Prison Legal Perspectives
"it is not and cannot he ineffective
assistance of counsel to fail to ask
'the question as to whether or not
somebody plead guilty or no contest
to prior offenses." The appellate
court disagreed.
In pertinent part, Hartley's
3.850 motion alleged that his defense
counsel was ineffective in failing to
ask the trial court to instruct the jury
that it could not consider the
convictions he had previously plead
guilty or no contest to (which were
pending before the court at the same
time he pled not guilty to the charge
he took to jury trial) as substantive
evidence of his guilt. Also, Hartley
asserted that his counsel should have
elicited testimony from him about his
previous decisions to plead in the
other charges so that the jury might
have inferred that he had' decided to
proceed with a trial in the charge that
was before it because he was not
guilty of that particular offense.
The appellate' court opined
that such type of testimony and issue
as Hartley had made is admissible for
the very reason Hartley asserted.
See: Lawhorne v. State, 500 So.2d
519,523 (Fla. 1986). It was further'
noted that convictions have been
reversed on direct appeals based on
the erroneous exclusion of such
testimony. See: Scurry v. State, 701
So.2d 587, 588 (Fla. 2d DCA 1997)
and also Bowles v. State, 849 So.2d
465, 466'(Fla. 411I DCA 2003).
Furthermore, as to the lower
court's opinion for its denial, the
appellate court cited to Ottesen v.
State, 862 So.2d 30, 3 I (Fla. 2d DCA
203), where the defendant asserted
'the same issues as Hartley did in his
post-eonviction motion and it was
held that the claims were properly
raised in such a motion.
The appellate court opined
that as a. matter of law, the lower
court erred when it ruled that
Hartley's
claims
were
not
cognizable. Therefore, the lower
court's denial order was reversed and
Hartley's case was remanded for an
evidentiary hearing on his claims.
2,0

Anderson
v.' Florida
Parole
Commission, 32 Fla.L.Weekly 0133
(Fla. 1st DCA 12/28/06)
Robert Anderson had filed a
petition for writ of mandamus in the
circuit court that challenged the
presumptive parole release date set
by
the
Parole
Commission.
Although his petition was denied,
. which the appellate court affirmed
and denied his petition for writ of
certiorari, the circuit court ordered a
lien to be placed on his prison
account.
On that issue, the appellate
court reversed the circuit court's
order imposing the lien pursuant to
Schmidt v. Crusoe, 878 So.2d 361
(Fla. 2003). Under Schmidt, the
circuit court in Anderson's case erred
when it ordered him to pay filing
fees and imposed a lien on his prison
account. See: Casonv. Crosby, 892
So.2d 536, 537-38 (Fla. 151 DCA
2005).
Accordingly,
it
was
concluded that Anderson's petition to
review the lower court's denial of his
mandamus petition was denied, but
was granted as to the challenge to the
lien order, that order was quashed.
McKire
v.
McDonough,
32
Fla.L.Weekly 0293 (Fla. 1st DCA
1/24/07)
Gerald M. McKire had filed
a mandamus petition in the circuit
court that challenged gain-time
forfeitures resulting from several
prison disciplinary proceedings. The
petition was denied as untimely, and
McKire appealed.
After McKire filed his notice
of appeal of the order denying his
mandamus petition. and in, response
to an order the appellate court issued
that required McKire, to file a
certified copy of the circuit court's
order of insolvency for appellate
purposes (or pay to the clerk of the
appellate court the filing fee), the
clerk of the circuit court prepared a
certificate stating that McKire was
indigent and had incurred circuit
court costs and fees.

On the same day the clerk's
certificate was issued, the circuit
court ratified and adopted it as an
order of the court. That order,
entered post-judgment and while the
appeal of the denial of the mandamus
petition was pending, ordered the
Florida Department of Corrections to
place a lien on McKire's trust
account for court costs and fees
in
the
mandamus
incurred
It
proceeding in circuit court.
appeared to the appellate court, from
the initial brief, that review was
sought on the lien order too.
However, McKire never
filed a separate notice of appeal (or
any paper that could be construed as
a notice of appeal) to invoke the
appellate court's jurisdiction as to the
lien order, and he made no attempt to
amend his earlier notice of'appeal.
As a result, the appellate court's
jurisdiction over the circuit court's
post-judgment lien order was not
timely invoked, which left the
appellate court without authority to
review it.
Ute mandamus p,ctition
denial order was affirmed.

Stevens v. State, 32 Fla.L.Weekly
0320 (Fla. 2d DCA 1126/07)
Marquell
L.
Stevens
appealed a circuit court's order that
dismissed his sworn rule 3.850
motion because the memorandum of
law filed with the motion was
unsworn. The circuit court retied
upon Dramas v. State, 615 So.2d 853
(Fla. 2d DCA 1993).
On appeal, it was noted rule
3.850 requires that motions filed
pursuant to that rule be under oath.
The purpose of the oath is to prevent,
false factual allegations by subjecting
the movant to prosecution for peJjury
if the factual allegations in the
motion are proven false. See: Scoll
v. State, 464 So.2d 1171 (Fla. 1985).
In relying on Dramas, the
circuit court had concluded that it
could
not
consider
Stevens'
. memorandum because it lacked an
oath. Because it did not consider the
memorandum,
it
was further

Florida Prison Legal Penpectives
concluded that Stevens' motion was
. facially insufficient.
In Oramas, it was opined
that
a
dismissal
for
facial
insufficiency where the lower court
refused to consider the movant's
unsworn memorandum was proper.
However, it was pointed out that in
the Dramas case, the factual
allegations supporting the motion

were contained only in, the
memorandum of law. In contrast,
Stevens' properly sworn motion, not
the memorandum, contained all the
factual allegations Stevens relied on
in support of his claims.
As a result of its findings,
the appellate court concluded that it
was not necessary for Stevens'
memorandum to be under oath
because the memorandum did not
contain any additional factual
allegations that were not already in
his sworn motion.
Instead, the
memoran~um set forth the legal
arguments based on the facts
contained in the sworn motion.
Accordingly, it was opined
that the lower court erred when it
refused
to
consider
Stevens'
memorandum and dismissing the
motion. Thus, the lower court's
dismissal was reversed and the case
was
remanded
for
further
proceedings.

Orange v. Slate, 32 Fla.L.Weekly
D351 (Fla. 3d DCA 1131/07)
Rudolph Orange sought a
recall of a mandate and rehearing of
the appellate court's order affirming
the lower court's denial of his rule
3.850 motion as being untimely
because he was incarcerated in
another state during and over the
two-year time limitation.
On May 18, 1993, Orange
was arrested in Florida for a Miami
crime. He subsequently ~tered into
a
substantial
assistance
plea
agreement (agreement) with the
State. In that agreement, provided
that Orange complied with States
contentions, Orange would receive a
It was also
lesser sentence.
stipulated that if Orange failed to

return for sentencing, the court
would enter an adjudication of guilt
and sentence him to the maximum
allowed, which was thirty years
prison with a minimum-mandatory of
fifteen years.
Meanwhile, Orange was
already on probation in Georgia,
which learned of the new offense he ,
committed in Florida, thus violating
his
Georgia
probation.
Subsequently, Orange voluntarily
returned to Georgia to resolve those
charges, where he was sentenced to
nine years incarceration. As a result,
Orange failed to appear for his
Florida sentencing, violating the
terms of his agreement. Although
counsel for Orange explained to the
court that Orange was incarcerated in
Georgia,
the
judge
impos~d
sentencing on Orange for thirty-years
prison.
In September 2002, Orange
completed his Georgia time and was
transferred to Florida Prison, where
he began his thirty-year term. In
May 2003, Orange filed a rule 3.850
motion where he sought to have his
plea set aside as involuntary. The
lower court denied the motion as
being untimely. Orange appealed
and the appellate court affirmed the
denial.
On motion to recall mandate
and for rehearing in the appellate
court, Orange contended that his
3.850 motion was nOl untimely
according to Demps v. State, 696
So.2d 1296 (Fla. 3d DCA 1997). He
further alleged that the lower court
erred in sentencing him in absentia
and .that because he was incarcerated
in Georgia, his absence at the
sentencing hearing in Florida was
involuntary.
In Demps, the appellate court
noted it had held that the time limit
(two-years) for filing a 3.850 motion
is tolled when a defendant is
'incarcerated in another state, not
having access to Florida materials.
Accordingly, it was found that
Orange's motion was not untimely
because it was filed within two years
of his returning to Florida. It was

further decided that Orange's
absence from the sentencing hearing
was involuntary, thus not triggering
the "failure to appear" provision of
the agreement.
The appellate court also
further opined that the lower court
erred in the application of the plea
agreement in Orange's case. It cited
to Valladares v. State, 754 So.2d 190
(Fla. 3d DCA 2000) and Johnson v.
State, 501 So.2d 158 (Fla. 3d DCA
1987) (which opined that "where
timely appearance for sentencing is
made a condition of a plea
agreement, non-willful failure to
appear will not vitiate the agreement
and· pennit the court to impose a
[d. at 160).
greater sentence."
Therefore, it was found that Orange's
failure to appear for sentencing was
not willful and thus did not vitiate
the plea agreement. However, it was
noted that had Orange been
incarcerated for a new crime
committed after entering into the
agreement, then it would 'not have
been found that his absence was nonwillful.
As a result, Orange's case
was reversed and remanded with
directions for the lower court to
sentence Orange in accordance with
the
previously
entered
plea
agreement without considering the
portion of the agreement regarding
Orange's failure to timely appear for
sentencing.

Ruth v. Stale, 32 Fla.L.Weekly 0422
(Fla. 1Sl DCA 2/8107)
Hardy L. Ruth appealed a
lower court's order that summarily
denied his rule 3.850 motion where
he had claimed ineffective assistance
of counsel .for failing to seek.
sentencing under the Youthful
Offender Act.
Ruth was eighteen years old
when he committed the offenses he
was charged with. He asserted in his
motion that his counsel should have·
advised the trial court of the option
to sentence him as a youthful
offender pursuant to section 958.04,
Florida Statutes (2003), which
. 2.1

Florida Prison Legal Perspectives
authorizes the imposition of a
sentence exceeding no more than 6
y~ars'
imprisonment for those
individuals committing crimes prior
to their 21 st birthday and who meet
the enumerated"criteria.
The trial court denied Ruth's
claim based on section 958.04's
specific wording which states that an
individual may not be sentenced asa
youthful offender if the individual
was convicted of a life felony. In its
order denying relief, the trial court
opined that although Ruth was
convicted of a first degree felony
(armed robbery), which would allow
for a youthful offender sentence, the
first degree felony was reclassified to
a lift felony pursuant to section
775.087(1), Florida Statutes (2003).
Section 775.087( I) mandates
reclassification "whenever a person
is charged with a felony, except a
felony in which the use ofa weapon
is an essential
or firearm
Thus, the appellate
element,..."
court opined. that the trial court's
order of denial -was in error for
several reasons.
It appeared that the .lower
court was confused about which
subsection of the 10/201Life Statue
applied to Ruth. A plain reading of
section
775 .087(1)
requires
reclassification only where the use of
a weapon or firearm was not an
essential element ofthe crime. Ruth
was convicted of armed robbery, in
which a weapon or fireann is an
essential element. As such, section
775.087( 1)'s
reclassification
requirement would not apply, and the
.appellate court noted that the trial
court was in error to conclude
otherwise.
Furthennore,
Ruth
was
sentenced to 20 years' imprisonment
with a 10 year minimum mandatory.
A life felony carries a minimum
sentence of 30 years' imprisonment
Thus, Ruth was not sentenced to a
life felony. Consequently, Ruth's
sentence was enhanced pursuant to
section
77S.087(2Xa),
which
required a ten year minimum
mandatory for the conviction of

12.

armed robbery due to his use of a
firearm.
However, the ten year
minimum requirement of the
10/20ILife statute was noted to be in
conflict with the maximum allowable
sentence, 6 years, authorized by the
Youthful Offender Act. This has
been addressed in State v. Drury, 829
So.2d 287 (Fla. lSI DCA 1994),"
where it was opined that a trial court
may sentence a defendant to a
youthful offender sentence in lieu of
the 10/20ILife statute's minimum
mandatory requirements. As a result,
the appellate court in Ruth's case
opined that the trial court incorrectly
ruled that the original sentencing
court lacked discretion to sentence'
Ruth as a youthful offender.
Therefore, Ruth's case was
remanded .to the trial court for further
proceedings on the merits of his rule
3.850 motion.
[Note: The appellate court in Ruth's
case noted that if Ruth is entitled to
the requested relief, he will be
merely entitled to a resentencing
where the trial court has been fully
infonned of its discretion to sentence
'Ruth as a youthful offender; Ruth is
not
necessarily
entitled
to
resentencing as a youthful offender.
See: Holmes v. State, 638 So.2d 986,
987 (Fla. 1st DCA 1994).]

Reese
v.
McDonough,
'32
Fla.L.Weekly 0423 (Fla. I st DCA
118/07)

James Reese appealed an
"order dismissing his mandamus
petition to comply with the cirepit
court's case management order
directing him to file appropriate
indigency documentation, as required
by section 57.085(2), Florida Statues
(2003). In particular, Reese had
failed to file a copy of his inmate
bank account statement for the six.
months preceding the filing of his
petition.
The appellate court however,
reversed the lower court's order of
dismissal and remanded the case to
allow Reese one opportunity to

correct the deficiencies
indigency submissions.

in

his

[Note: Whether the claim falls under
a collateral criminal proceeding or
not, the appropriate indigency
documentation and affidavitsincluding an inmate bank account
statement for the preceding 6 months
before the filing of a petition for writ
of mandamus-rnust be filed for the
purpose of case management
procedures, flCcording to the DCA.]

Hurley
v.
McDonough,
32
FJa.L.Weekly 0446 (Fla. 1st DCA
1111107)
Michael Hurley appeared an
order that denied his mandamus
petition that, in part, sought relief
from "the circuit court's order
imposing a lien on his inmate trust
account for filing fees.
It was· conceded by all
parties in the case that Hurley's
petition was a collateral criminal
action, therefore, the appellate court
reversed the lOwer court's order
denying Hurley's relief from seeking
removal of the lien.
Hurley's case was remanded
with directions that the circuit court
dissolve· the lien and direct the
of any
funds
reimbursement
withdrawn pursuant to the mandamus
petition filing fees.
[Note: Also see other similar cases recently
decided regarding exemption of the
indigency lien provision issue: Austin v.
McDonough., 32 FlaL.Weekly 01 (F1a 111
DCA 12119/06); Bowleg v. Flo. Dept. of
Corrections. 32 FlaL.Weekly Dl31 (FIa IDCA 12128/06); Scott v. McDonough., 32
FlaL.Weekly Dl32 (Pia 111 DCA 12128106);
Marquez v. McDonough, 32 PiaL.Weekly
0192 (F1a 111 DCA 115/07); Vega v.
McDonough. 32 FlaL.Weekly Dl9S (FIa I"
DCA 119/07);Hiclcey v. McDonough., 32
FlaL.Weekly Dl9S (Fla I" OCA 119/07);
Lowery v. McDonough, 32 Fla.L.Weekly
0330 (Fla °1" DCA 1126/07); BanJcs v.
McDonough, 32 FlaL.Weekly 0339 (F1a I"
DCA 1131107); and Jones v. Harris. 32
FlaL.Weekly 0339 (Fla lEI DCA 1131107).J

•

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~ a o. . 'Christmas, FL 32709-1511

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VOLUME 13 ISSUE 2

Florida Prison Legal

Perspectives
P.O. Box 1511
Christmas. FL 32709-1511

MAR/APR 2007

NONPROFIT
U.S.
. POSTAGE

PAID
MID FI-FL

PERMIT NO.
6506S

Former Prison Chief
Sentenced to Prison
JACKSONVD...LE-The fonner secretary of the Florida
Department of Corrections (FOOC), James Crosby, was
sentenced to eight years in federal prison, to be followed
by three years probation, on April 24, 2007, for his role in
taking $130,000 in kickbacks from a prison contractor.
The following day Crosby's longtime friend and crony,
Allen Clark, whom Crosby had promoted to regional
director of the state's prison system, and who was
involved with Crosby in the kickback scheme, was
sentenced to two years and seven months in federal prison.
U.S. prosecutors asked for a more lenient sentence for
Clark than what Crosby received. Acting U.S. Attorney
Jim Klindt revealed for the first time publicly that the
lesser sentence was appropriate for Clark because he
worked undercover to help federal agents build the case
against his lifelong friend and mentor, James Crosby.
Both Crosby and Clark pleaded guilty last July to a
single charge of accepting kickbacks from the owner of
Gainesville-based American Institutional Services, a
company that was set up specifically to sell snacks and
drinks to prisoners' visitors on weekends, for which they
were charged exorbitant prices. Prosecutors said Clark
would accept the kickbacks and deliver part of the
payments to Crosby. The kickbacks were totaling as much
as $12,000 a month. The private contractor raked in
millions in profit by gouging prison visitors at the
majority of Florida's more than 130 correctional facilities.
At his sentencing, Crosby, a 3 J-year veteran of the
FDOC, apologized, nI am truly sorry for what I did,n
Crosby told U.S. District Judge Virginia Hernandez
Covington. nl failed a lot of people. I failed the people
who worked for me.n Crosby also apologized to his
predecessor at the FDOC, Secretary Jim McDonough,
who was the prosecution's only witness at the sentencing.
McDonough testified and called Crosby na cancern on the
FDOC. nCorruption had taken roots, vile things were
donen while Crosby was head of the prison system,
McDonough said. Crosby did not offer any apology to the
victims of his criminal actions-the families and friends
of prisoners who were bilked to cover the kickbacks that
he and Clark took.
Judge Hernandez Covington said that she was
disappointed that Crosby had not paid any of the $130,000
that he agreed to pay in his plea agreement. Crosby's
attorney, however, said Crosby has no money to pay
because after he was charged the state cut off his
retirement funds which would have totaled more than $1
million. The judge had no sympathy. nThe public's -trust
was violated. As head of the department, you have to
suffer the consequences,n she said, "Government officials
are held to a higher standard.n

Crosby was given until May 24 to report to a federal
prison to begin serving his sentence.
. ~fter Crosby's sentencing, McDonough said, n I think
Justice was done." Asked whether he accepted Crosby's
apology, McDonough said he would think about it while
Crosby does his time.
Wanda Valdes, whose ex-husband Frank Valdes was
murdered in 1999 in a beating by a gang of prison guards
at Florida State Prison where Crosby was then a warden,
was pleased with his sentence. Several guards were
acquitted in two trials, but earlier this year Valdes' family
settled a lawsuit for $737,500 against Crosby and the
prison guards. "Thank God the system is finally working,"
she said.
After Crosby was sentenced, his ex-wife, Leslie
Crosby, confronted Secretary McDonough and in a
choked voice asked him, "How can you live with
yourselfln Apparently she needed someone else to blame
for Crosby destroying her life as well as his own.
Leslie Crosby divorced Crosby three days after he
pleaded guilty last year and he handed over $200 000 of
his retirement money to her. A short while later she used
that money to buy a home in Starke, where Crosby moved
in with h~r. The state of Florida recently filed suit against
both Leshe and James Crosby, alleging that the divorce
was a scheme to try to shield the forfeited retirement
money from being taken back by the state.
Crosby could be back in court again, if he is needed to
testifY against others in future proceedings. Prosecutor
Klindt said Crosby is cooperating with a continuing
investigation into the kickback scandal and that depending
on Crosby's cooperation the government could ask for a
reduction in his sentence. That investigation no doubt
involves Edward Dugger, the owner of American
Institutional Services, who was paying the kickbacks to
Crosby and Clark. It may also involve other powerful
figures. Reportedly money from the AIS prison visiting
park ~nteen gouging scheme was also going to fund the
campaign of at least one state senator, who also just
happened to be a longtime friend of Crosby's. (Reported
on in more detail in FPLP, Volume 12, Issues 3 and 4.)
Klindt also said, nWe're pleased with the judge's
sentence. We think eight years sends the right message to
public officials who tum to corruption because of greed.
And we think this sends the right message to the people of
the state of Florida and it sends the right message to the
Department of Corrections that things have indeed
changed and that ifyou cross that line, you'll be brought to
justice." •