FLORIDA PRISON LEGAL

ers ectives
ISSN# .1091-8094

VOlUM 15 ISSUE 2

.

.

Guards. Flred, Investigated a. FSP
and uel for Beating Prisoners:· Only
the Tip of a Dirty Iceberg
by Teresa Bums Posey

"I want to be crystal-c/ear about this: J ~ill
never tolerate inmate abuse. I will take
swift, decisive action anytime it occurs. .~
goal is to rid the Florida prison System of·
the handful of employees with this mindset
and I will cooperate fully in prosecuJing
those engaged in criminal acts both on a
lopal level and at· the federal .level as
appropriate. 1 will also seek revocation of
correctio~1 o.ffi~er certifictition for these
officers. "
.

The

above statement was made by Florida
Department of CorrectiODS SecJetaiy Walter McNeil iIi
mid-April -09 foDowing information leaking to the
maiDStream media and being reported that IS prison
pants at two North Florida Pri~s· had been fired or
placed on admiDisIndive leave for ~ and abusing
prisoners.
.
IDitia1ly the GaInesville Srm reported on April IS
that 11. guards at' Florida State Prison (FSP) bad bc1en

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PAHLIIIllAlMlCADS l'IIISIClNIIU

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'1·

2009·

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placed on administrative ieave after being accused ofNeting·
prisoners during a time period when they' thought
surveillance cameras were not working and that their actions
. were not being videotaped.
'IhC alleged incident at
neighboring Union CoJrectionallDstitation (UCl) resu1tecl in
folD' gwads being placed on leave w8s not reIatM to the FSP
incidcmt, yet, the Sun's sources had no further infonnation
about what had happened thete extept that a prisoner, or
prisoners.' had also been beaten Or abused.
Subsequent reports ftom other media sources n:jJoJted
'that six guards had been terminated 8t FSP and another five
placed on leave for, .,acc:oidiDa to FDOC officials, beaIiD8 a
single prisoner in solitaly ccmfinemeat. AccordiD8 to the
FDOC, the six guards who were temrinated-a Lieutenarrt,
three sergeants ~ two boUOm-~ officers:-ttJiDking that
the video cameras weren't working after a power failure shut
'ofor cameras' monitors, pulled a prisoner out ofhiS ceD for
allegedly exposing himsolfto a Burse and beat him up. But,
the cameras'recorders were on a baclmp charger that
recoIded tho incident and a tip ftom another employee led
the prispu ~~OD to review the tapes ancI1ake action,
FDOC officiaJs told'the mainstream media.
The six guanIs terminated after 1he alleged April 8
incident wem: Lt Wdliam Hinson, (22 years with FDOC).
Sgt. Anthony Reed (16 yn), Sgt James Coleman (6)'1S1 Sgt.
Richard Kross (6 )'II), COl Raymond WiDiams (12 )'IS). and
COl Charles Reames (25 yrs). Reames reportedly quit
while the othms were ac:tually fired. Astor what the 01her
five FSP guanIs who were phiced on admiDistrative leave
did, the FDOC bas been quiet ,rIatiug an investigation is

Florida Prison Legal Perspectives
being conducted and it's confidential until the investigation
is completed. The identity of those five guards was not
released by the FDOC.
.
Similarly, FOOC officials were tightlipped about an
alleged incident of prisoner abuse that occurred one day
later, on April 9, at UCI. The FDOC would onlyconfinn that
four unidentified UCI guards were also placed on leave
while an (alleged) abuse investi~tion is conducted.
AnotberPenpeetive
As may be noted above, a careful distinction is made
between what was initially reported in the media, what
information the FDOC released; mid what the mainstream
media subsequently reported. 'That distinction is made for a
reason.
FPLP began" receiVing i~forn:tation about the
incidents at both FSP and ueI shortly after they occurred
and several days before the mainstream media. FPLP has
good sources for information at both of those facilities,
sources that include FDOC staff and prisoners.
What actually occurred at FSP on April 8, according
to FPI,P's sources, is that there was a temporary power
outage' caused by the main circuit breaker for the institution
exploding. During the outage, power was cut off to the
security video cameras' monitors, thus giving the imp.ression
that the cameras and their recorders also were not working.
It took almost all of that day before the electric company
could install equipment to by pass the electrical problein and
restore full power to the prison.
During· the power outage, FPLP was informed, ~
gang of guards, thinking all the cameras were off, began fl
campaign of revenge. Sources state that the guards brutall)
beat not just one prisoner (as the FDOC claims) but that the)
beat, stomped, and kicked several several prisoners in theil
confinement' cells, app~tJy the beatings were meted OU1
for past transgressions by the prisoners that had to b,
overlooked at the time by, guards under constant surveillan~
by the prevalent video cameras at FSP.
Guards at FSP no doubt are restrained by the vide<:
cameras that were installed there a decade ago following tht
beating death ofprisoner Frank Valdes in a confinement cell
. by a group of prison guards. Prior to that it was commoll
knowledge that guarCls routinely beat and abused prisoners a1
FSP. There was even a rite of passage, where prisoner!
newly arriving at FSP were led handcuffed and shackled UJ
a ramp at the rear of the prison and into a side hallway. b
that hallway was a "welcoming committee.': a gauntlet oj
guards who beat the prisoners Until they feU' or wer~
unconscious and then dragged them down the main hallw8)
to a confinement cell.
"
As concerns the April 9 incident at UCI, f"'PLP'i
,sources confinn that it did involve tile beating of a singh
prisoner by a group of guards. Although it is unclear wh81
sparked the beating,. sources report that an elderly prisonel
assigned to cut other prisoners' hair in a confinement dorn
was severely beaten by guards. At some point in the beating

Florida Prisoll.Legal Penpectives
either ,a guard' used it as a weapon or the prisoner to tty
UCI has a multifaceted mission these days. That
to defend himseI( the batber clippers were involved in
was ilot always the case. For most ofthe prison's histoJY it
the incident There was no report that any ofthe guards
was known as "The Rock," and its mission was to house the
, \Wfe seriously injured. But the prisoner was and had to
baddest of the State's prisoners. Their keepers, in tmn, had
be taken to an outside hospital despite UCI being a to be bad themselves; Violence or the threat of it established
nuUor, medical facility. The barber clippers were , what cOntrol there was. But things change. The old "Rock"
confiscated by investigators later as evidence. One
was tom down in the nineties and today the sprawling
source reported that they had blood on them.
complex, in addition to housing most death row prisoners,
Sources say they believe the prisoner's beating also hilS a solitary confinement'close numagement unit, two
at UCI would probably have been covereckp, as'most traDsitional care and two crisis stabilization miits for
prisoner beatings there are by the guards, and mentally-ill ,prisoners, and an 'bpen population section as
administration, except for, the filet that the prisoner in large as ,most maYor prisons in Florida that houses only
elderly, 8eriatric prisoners.'
'
this situation was taken to an outside hospital.
The staff who work,' at UCI are largely the
, Reportedly, once the prisoner told the hospital staff that
'he was beaten, by guards a report was made to law
descendants of prison employees. The prison system has
, eoforcemeJit (as is rilquirecl by law) and the FDOC was been the leading employer in the area
decades. Jlrisons,
forced to ~ its own investigation. Four unidentified . which DOW surround UCI, domiDate the'culture of that ~
prison guards who worked in the confinement unit where region and factor into every facet of the community,
the prisoner was allegedly beaten were placed on
incluctiDg politics, law enforcement and the comts. WOrth the
administrative leave.
.
,•
prison system having such lev.erage there. prison officials
FDOC officials said once the department
and employees have little Or no fear of outside interference
completes its investigation into the FSP incident the case in whatever they may do to pnsoners. And the general
will be tumed over to the State Attorney's and; U.S.
attitude, pissed downfiom the past is, that prisoners are the.
scum of the earth and can be treated the same waY, with
Attorney's offices for possi1~le criminal prosecution. '
impunity. Those employees who don't hold that view are
,quickly gotten rid of or convinced to conform with silence or
More,Action Needed to Smp Abue
F'IX>C Secretary McNeil's stalanent that experienceoitrasization on the job and in the conummity.
, Of the various groups of prisoners at UCI, those on
prisoner abuse will not be tolerated, as began this article,
death ~ have the least concern about being ,abused. Every
is welcome. But one w)Hldas how seriously it Win be
taken.
'
prisoner on death row is closely monitored with cameras and
In December( 2008, three moiiths before the they all have attorneys who would quickly respond to any
above alleged prison "beatings, ,I personally contacted abuse allegation. The staffwho work on death row generally
act professionally with those iestraints,.sources report. This
Secretary McNeil's office about elderly and mentaJly-iIl
prisoners being beaten and abused by guards and staff at has n~t been the case With the' other groups of prisoners
Union CoJrecIional ~mtitution. I' provided Secretary housed at UCL
For some time Dow FPLP staff has been receiving
McNeil with names, dates, and information on how to
consiStent. reports 'that prisoners housed in the close
obtain verifying evidence concerning sPecific incidents
management and disciplinary confinement dorms (N and 0
of prisoners being beaten and abused at UCI. I was
,infonned by the FDOC's central office that. Donns). in the two TCU ~rms, (U aDd V), and, elderly
prisoners in open population (Southwest Unit) at UCI have
investigations would 'be conducted: Investigations were
started, but'to this date I have not received confirmaIion
been being almost routinely beamn and abused in various
that any staff have been held accountable_ for" the' ways.
The problems in dose management and disciplinary ,
~p and abuse reported.
,
, Instead, sources at UCI inform me, shortly after
confinement dorms usually involve some· Jnis9ners neWly
I coJdBt:ted the c:entra1 offiCe several the more abusive mriving in those' dorms being beaten. SOW'CeS report that
such beatings
meted out by young, pumped-up, bored
and violent staffmembers were placed on different shifts
and split up between different posta ,That, sources guardS ,either as a way of 'establishing dominance over
report, has resulted in a lessening of 1?eatin8s and abuse· prisoners who they think might be a problem later on, or
against' prisoners who have been accused of disrespect
apinst -prisoners at the facility, but not completely
eliminated them. However, while 1;Jeating and abusing.
towards other staft; or who've been convicted of an offense
say prisoner. is illegal and deplomble. when one the .guards think deserving of a beatiDg. While there are
, understands which prisoners have been being beaten and surveillance cameras installed in those dorms S1JPPOS:edly to
abused at UCI then it becomes dear that the obvious prevent 'such abuse, UD1iI recently those cameras only
problems at the facility, are' only, what I call, the tip of a covered the hallways'ofthe cell areas and had no view inside
dirty iceberg. What lies below the suiface is even worse. ' the cells or in other areas of the buildings where prisoners

for

of

are

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Florida·Prison Legal Perspectives

.Florida Prison Legal Perspectives
are allowed to pack up other prisoners' property to save eliminated. This policy will, of course, lead to mcreasea
the staffWOlk. For such orderlies, beii:lg allowed to steal
medical costs in the long nm as medical conditions g()
, like this has become ajob perk.
.
improperly treated. There may even be a rise in the number
And that is not the only way the elderly are ' ·ofdeaths at· UCI, which already has the highest death rate of
..
victimized at UCI. DuriDg cell searches it's routine that any major prison in Florida.
prisoners not be allowed to observe the search, contrary
But with all those problems beiDs faced by elderly
to FDOC rules. Instead, when a team ofguards descend
prisoners at UCI one other problem stands out. Ever since
on a donn in open population to seardl,all the prisoners the institution switched to being a geriatric facility elderly
will be sent to the. day room area. Often, once they are
prisoners have had to live in fear of being beaten. That fear
is justified.
.
allowed to return to their cells they ctiscover cigarettes.
tobatco, and SIlack items that they purchased in the
.
Up until just 3 or 4 months ago elderly' prisoners
canteen and bad in their lockers' missing ComplaintS were beiDg almost routinely beaten by guards at UCI. It was
about this are met with outraged denial that anything no secret on· the compound that once or twice a week some
was taken. Or threats. Complaining too much bas. in unfortunate old man would be pulled into one of the inmate
instances, resulted in fabricated disclplinaly actions and
barber shops or an empty office in one of the areas at the
confinement for "lying about staff...
.'
Southwest Unit and be severely beaten, usually while
UCI was apparently chosen to be geriatric
handcuffed behind his back, by a Sang of prison guards.
facility primarily because it has rel~vely 1aJge medical
Female guards who pn:dominantly wmk the Southwest Unit,
department Unlike most major prisons in Florida, ua
and who were the ones often initiating the beatings, are
bas several doctors on staff and numerous nurses and
reported to havegIeefully watched and even participated in

a

medical supporlladministrative personnel. However,
even such expanded medical services are often
overwh!i'lmed. Consider that here are approximately
1300 elderly prisoners ooncentrated at UCI, many with
significant medical problems, along with several
hundred mentally-ill prisoners in the TCU' and CSU
units, over 300 death-row prisoners,' and about 200
prisoners in a confinement status at any time.
Like with other staff at UCI in security or the
adnrinistration, some ,of the m~cal staff are
professionals and cany themselves tIuit way. They
resolve and treat the medical problems of prisoners to
the best of their abilities within the limits set by ·the
FDOC.
Others among the medical staff are not
professionals and seem to be motivated only by
receiving a paycheck and state benefits. According to
CODSistent sources, at least one of the doctors at UCI
shouJd not be practicing medicine. And. several nurses,
who ad as gatekeepers one bas togo through to see· a
dpctor, are reportedly condescending, vindictive, and
verbally abusive towards elderly prisoners.
One
problem all the medical staff at ua share· is
maintaining silence to known or suspected physical
abuse of elderly, and' mentally-ill prisoners, whom often
they must treat. Florida laws mandate· the reporting of
.such actual or suspected abuse, with criminal penalties
for not reporting. But it's not worth their jobs to blow
the whistle at UCI, apparently.
• Recently numerous elderly prisoners at UCI
have contacted FPLP claiming 'that medications that
they need and have previously been receiving without
problem have been cut or reduced. One staff member
has informed FPLP that the medicalstaft' has been
directed to reduCe medication to save money during the
budget crunch, or staff positioDS may ~. to be
I

. some ofthese beatings.
Prisoners who have told FPLP that they have been·
beaten in open population at UCI most often state that there
would be 4 or S male guards doing the beating. Usually they
are guards who non;nally work in the confinement dorms, the
prisoners state. Consistent reports are ttiat these guards
usually cautioned each other not to leave marks or bruising
while the beatings were taking plaa; but occasionally they
would get out of control. If no marks were left, prisoners
say they were often· let go after the beating with a warning
not to say anything about what happened.· Ifmarks were left,
prisoners say they were often given a bogus discipliilary
report and placed in solitary ·confinement until the marks
were gono.1bis with the complicity of. higlierranking
officers anddisclplinary teams. These beatings came to a
head late in 2008 after QDC elderly prisoner bad an eye
'. knocked out, another was beat~ in the face with a metal
waIki~e, and a 73-year-old man was beaten so bad not
omY his face but one whole side or"his body was severely
bruised. '"- latter prisoner told FPLP that he was beaten
.after being accused by a f~e guard ofhaving his hands in
his pant'a pockets (on'a freezing day). Reportedly, that
female guard had made up her own rule that prisoners could
not have their Iutnds in their pockets.around her.
.

CODdusiOD

"

As noted above, that aevn prisoners were beaten at
. FSP and that one was beaten at ua only scratches the'
~ as to the abuse occurring at those facilities.
While the worse abuses are in a lull right now
following the spotlight cast on the publicized abuse, the
culture that allowed such abuse in the first place still exists
and is simply laying low for a while.·
There needs to be a sustained policy implemented by
Secretaly McNeil letting all FSP and UCI staffknow that the
old waY of doing things are over, that swift and decisive

s

Florida Prison Legal Penpectives
discipline will be taken for the abuse or Suspected abuse .
of elderly 811;d mentaJJy-iIl prisOners, that those in
supervisory positions will also be held accountable, as
will those who know of or ~ prisoner abuse and
fail to r;eport same. •

FDoe Guard Fired

'

After Shocking eh~dreD

With StUD GUD
On "Take Our Daughters and .Sons to WOIk
Day" at Franklin CorrectlonaI Institution the children
were in for a real shock. Sgt. Walter Schmidt wanted to
give the kids an idea ofhow their parents treat prisoners.
So, being in c1uuBe of the institution's armory, Schmidt
took out a hand-held sew. gun and zapped the children
with 50.000 volts ofelectricity.
.
Schmidt, a 14-year veteran with the Florida
Dqjartment ofCmrections, sai~ he asked the parents ifit
was okay to shock the kids. "When they said 'sure,' I
went ahead and did it," Schmidt said after the incident
. Reportedly. after being zapped with the stun gun
the children yeUed,'screamed, dropped to the ground and

were flopping lI(Ound holcfing the bum mirks on their
One had to be takeD to a nearby hospital.
Three days after the April 24 inCideltt, Schmidt
. ,received a' notice fiom FCI Warden Duffie Harrsion
stating that his "retention would be detrimental to the
state" because he ~ "engaged in inappropriate conduct
while demonstrating weapons to several kids during a
,specialevent at the institution...
, After he was terminated Schmidt said, "It wasn't
'ilmmded to be maliCious. but edUcational. Tho big shock
came when'J got fired."
.
. It is not known how maDy of tho' children might
still want to be a prison guaid when they grow up after
such an exciting day at work with their Parents... "

armS.

THE DALEy'tAW OFFICE, P.A.
Post Conyletion

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gemency

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/rBoard Certifi~d Criminal Trial Lawyer
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, Former State Prosecutor
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Florida Prison Legal Penpectives

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

Florida Supreme Court

cases that are a/ready final on the
dilte ofthe opinion. This may raise a
question, being that decision was' in
both the 9/29/08 and 12123/08
opinions: lfa case became 'final
prior to the revision (12123/08), but
, after the original opinion (9/29/08),
would the Court's opinion apply to
that case?]

Stote v. Powell, 34 Fla. L Weekly
52 (Fla. 12123/08)
'The Florida Supreme, Court
~ised its opinion in Kevin
Powell's case.
The original
opinion was reported in State v.
Powe/, 33 Fla. L. Weekly S778
(Fla. 9/29/08)
As reported in the last issue of State v. Kelly, 34 Fla. L. Weekly.SlS
(Fla. 12130/08)
FPLP,; the question that was
Subsequent to a very lengthy
presented .remained answered in
review of State v. Kelly, 946 So.2d
the affinnative in the revision. In
1152 (FIa. '4th DCA 2006), that
fact, in this writer's investigation
certified a question of great public
in both the original and revised
opinion, no change took place as to ' importance and was rephrased by the
Flori~ Supreme CoUrt, it was
the findings and decision. Both
concluded that "Article J, section 16
minot, each other except an
of the Florida Constitution, as
addition to the notes in the revised
influenced by Florida's prospective opinion.
The additional note was imprisonment standard, prevents the
State from using uncoUnseled
inserted as number 9 toward the
misdemeanor convictions to increase
end of the Analysis section 2.-B.
or enhance a defendant's laterFlorida Courts, just before section
3.-wamings gi:ven to Powell at' misdemeanor to a felony, unless the
defendant validly waived his or her
pageSS.
The added note pushed the right to counsel with regard to those
original n.9 to nlO and brings prior convictions. However, the
State may constitutiona1ly seek the
attention to State v. Modeste, 987
th
increased 'penalties and fines short of,
So.2~ 787 (PIa. 5 DCA 2008) (en
incarceration
associated with the
bane), where it shows that the Fifth
defendant's
relevant
number of DUI
District receded from its previous
offenses."
opiniqns that were cited. in the
It was further conclUded that to
original and revised Powell
m~
the initial burden ofproduction,
decisions, which were" Maxwell v.
State, 917 So.2d 404 (FIa. Sib DCA the defendant must assert under oath,
2006); and Octave v. State, 92S . through a properly executed affidavit
that: "(I) the [prior] offense involved
So.2d 1128 (PIa. sth DCA 2006)
under the Analysis section of . was punishable by imprisonment
[emphasis added]; [2] the..,defendant
Florida Courts' decisions.
[Note: although the end result of was indigent and thus, entitled to
the revision remains the same, so court - appointed counsel; (3)
does the decision, that the opinion . counsel was not appointed; and (4)
the right to counsel was not waived."
is not to be appli~ retroactively to

In its own conclusion, the Florida
Supreme Court approved the Fourth
District's decision in Kelly, but opined a
disapproval to any of that district's
reasoning that was inconsistent with the
Florida Supreme Court's modified
framework.
, Accordingly,' the. Kelly case· was
remanded for further proceedings
consistent with the concluded opinion.
In Re: Amendments to Floridil Rule of

Criminal Procedure 3.851 And Florida
Rule of ApPellate Procedure 9,142, 34
Flo. L. Weekly S30 (Fia. J2/30108)
To reflect a comparable pWcedure to
seek a belated appeal in capital-cases (as
to that in non-capital cases pursuant to
. Fla. R. Crim. P. 3.850
rule 3.8'1
~as amended to include a subdivision (j)
~ ~ provide that "[a] petitioner may
seek a belated appeal upon the allegation
that the petitioner timely requested
counsel to appeal the order denying
petitioner's motion for postconviction
reliefand counsel, through neglect, failed
to do so."
Rule 9.142 of the Fla. Appellate
Proci:dures was amended to qualify the
,circuDistance$, upon which a ~lated
appeal may be sought in a capital
postconviction case. Specifically, the
amendment places a .one-year time limit
on seeking. a belated appeal from the
expiration of the time for filing timely
notice of appeal.

(g»,

a

[Note: A review. of these amendments
can be found in Volwne 34, nwnber lA,
ofthe January 9, 2009 issue ofthe Fla. L.
Weekly at page S30.

7

..
State \I. RIlbedetlfl, 34 Fla. L.·
Wee14Y SS 1 (Fla. 1/29/09)
This case ~ ~ted to
have the decision tn RabedeQJJ \I.
State, 971 So.2d 931 (PIa. 5111 DCA
2007). reviewed due to a conflict
certified by'that district court with
the decision in Gist \I. Stote. 948
So.2d 816 (FIB. 2ad DCA 2007). .
The Fifth District CoUrt of
Appeal opined in RIlbedeau, 8
defendant· is entitled to credit for
time served on his concurrent
sentences of each case upon a resentencing. The Second District in .
Gisi opined that such a defendant
is not entitled to the credit.
After its analysis of both
districts' opinions, .the Florida
Supreme Court concluded that the
Fifth District was correct.
approving the decision in
Robedeau,disapproving
the
SecOnd District's in Gist.

~.

~Iorida Prison· Legal

Penpectives

. changed to "an original and I cOpy" •
(this cl1aD8e was made in rule ~.110
(b)- notice ofappeal filings. 9.11 O(g)
- cross - appeal filings).
Rule 9.360 (8). Joinder: which
was silent as to filing fees, was
amended to mirror the amended
requirements for notices pf appeals
and cross-appeals. Subdivision (8)
of the rule was further amended to
claritY the time for filing 8 notice of
joinder in original proceedings.
The
amendments
became·
effective on the date ofthe opinion.

[Note: A review of the above noted
amendments and the fonner above noted
amendments can be found in Volume 34,
number 4. of the JIIDU8IY 30. 2009. issue
of the Flori4a Law Weekly at pages S60
through S62.]

Gist v. State, 34 FIB. L. Weekly 894 (PIa.
1/29/09)
The Second District Court of Appeal
in Michael Oisi's case (Gist v. State, 948
So.2d 816 (FIa: 2nd DCA 2007» issued a
certified question of great importance: Is
a defendant,· on resentencing. entitled to
credit on each . newly imposed
In Re: Amendments To Florida Rule consecutive sentence 'for prisOn time
Of Appellate Procedure 9:141, 34· already served on the original concurrent
Fla. Weekly S61 (Flo. 1/29109)
sentences?
.
Pursuant to comments filed that
.The Florida Supreme Court resolved
followed the issuance of the Florida the qu~on by answering it in .the
Supreme Comt's opinion in In Re:_ affinnative due to its review and
Amendments to Florida Rule of approval of the decisions in RIlbedeau \I.
Appellate Procedure 9.141, 922 State. 971 80.2d 913 (FIB. SI1l DCA 2007)
[See: Stote v. Rabedeau, 34 Fla. L.
So.2d 233 (Fla. 20OS), rule 9.141 (c)
was amended to claritY the Weekly Ss 1 (Fl~ 1129/09), and noted
procedurf? for. seeking belated within this .issue Qf the FPLP under
In Re: Amendments to Florida
discretionary review or belated .Supreme Court ofFlorida. Notable Cases
Rules of Appellate Procedtil'e, 34 appeal of a district court decision. In section.]
"
.
Fla. L. Weekly S60 (Flo. 1/29109)
In Re: Amendments to Flo. R. App. P
Accordingly. for. the ~ set out
An out-of-eyc1e report was
9.141, subsection (c) -Petitions.·in ·RIlbedeau,the Second District's.
Seeking Belated Appeal or Alleging· decision in Gisi was quashed and.
filed proPOsing amendments to
Florida .Rule . of .Appellate
bleffective Assistance of Appellate· remanded . for further proceedinga
Procedure 9.110 _. Appeal
Counsel, extended the existing ~ consistent with the concluding, approved
to include petitioners seeking belated
opinion.
Proceedings to Review Final
Orders of Lower Tribunals and discretionary, .. review· or belated
appeal in Florida Supreme Court.
Valdes \I. State, 34 FIa. L. Weekly S1I6
Order Granting New Trial in JUlY
(PIa. 1130/09)·
.
It was recomniended that rule
and NoiJ-Jmy Cases. and 9.360Parties.
.
The Third District Court of A.ppeat
9.141 be revised to clarifY whether
The
amendments
were certain .provisions contained therein . in Eli ·Emigue Valdes' case (Valdez v.
proposed in response to legislation . are or are not applicable to petitions State; 970 So.2d 414(Fla. 311l DCA
discretionary review. Second, it was
2007) opined that no double jeopardy
requiring a filing fee· for crossappeals and certain joindet notices suggested that it would be occurred in dual convictions for
considered to adopt a court discharging a firearm nom a vehicle
or intervenor motions. See: ch.
2008-111, section I, 11, 13, Laws commentary specifically referring to . within 1000 feet of a person, and the
of Florida (amending sections Sims \I. Staie, 33 FlB. L. Weekly
shooting intO an occupied vehicle arising
25.241, 34.041, 35.22 ·F1orida· S6~8 (Fla. 9125108). Third, it was
nom the same criminal episode.
Statutes).
noted to be considered that the
That opinion was in direct conflict
Rule 9.110 (g). cross Appeals,
Criminal Practice Subcommittee of with the Fifth District in Lopez-Vasquez
11l
the Rules Committee had determined
was amended to require that a
\I. State, 931 So.2d· 231 ~ 5 DCA
that subdivision (c), under rule 2006), which opinedtbat such'did violate
notice
of cross-appeal
be
9.141,· may benefit nom a more double jeopardy.
accompanied. by any filing fee
presCribed.by law· and filed in the comprehensive revision.
On review of the. conflicting
same manner as a notice of appeal.
The amendments made were
opinions and after a lengthy analysis. the
Other amendments to 9.110
approved. ana became ~ effective the
Florida. Supreine Court approved the'
consisted of: instead ofreferencing .date ofthe opinion.
Third District in Valdes where it .was
concluded that the dual convictions do
"2 copies" to. be filed. it was

Florida Prison Legal Penpectives
not violate 1I1e prohibition against defies a lawful order to stop even' if it was error for upward departure from
double jeopardy.
,
justification for detaiiJiDg that penon gUidelines based on' facts found by trial '
'
'
Accordingly,
the
Third does not exist before he initially flees judge, not by july.
District's results were approved,
from police and ewen if initial t1ight
Review of this opinion was sougfJt
and granted 'by the Florida' Supreme
but not the reasoning for the was not a crime. .
reSults, and the resul1s and, " Review of die opinion was Comt (case no. SC06-II73, Stote ".
That order was dated '
reasoning in the Fifth District's sought:and granted by the Supreme Fleming).
decision were disapproved.
'Com of Florida, case no.' SCOB- February 11, 2009. and oral argumeut
1898 (C. E. L~ v. state). Order was
will be set by separate order.
Rigterlnk v.' Stole, 34F1a. L. dated December 19,2008; and oral
Weekly ~132 (Fla. 1130/09)
argument 'will be set by a separate Isaac v. Stat,!. 911 So.2d 813 (Fla. lit
DCA 2005)
.
In
Thomas
William order.
, Rigterink's case, it has been
The First DisUict Couzt of Appea1 in
opined that yet, another Florida
Stote JarrJlnes, 33 fJa.L. Weekly Isaac bad opined: Two-year limit for
County Sherlff(polk county) right- D2455 (FIa. 31'1I DCA 2008).
'amendment to a rule 3.850 motion that
to-counsel wamiJig is defective.
The Third District' Com of regarded def~'s resentencing began
The warning given to Appeal opined in Jardines' case 1bat: when appellate CQUrt issued the mandate
RigteriDk regarding his right to
An affidavit alleging' a drug
in direct appeal of the rcsentcnciDg; The
coUDSd only depicted that he had a detection Clog alerted to a marijuana
trial court was bound by the decision in
"right to have an attorney present
odor &om inside a .residence is Apprendi v. New Jersey since it was
prior to questioning." As the sufficient to' establish probable ~ decided
prim
to
defendant's
Florida Supreme CoUrt determined for issuance of a search warrant for resentencing;
Departure
sentence
in State. v. Powell, 33, Fla. L. ' the residence; 'A canine sniff is not a imposed pursuant to a trial court
Weekly S778 (FIa. 9/29/08),
Fourtli Amendment sean:h; where
determining a, filet by merely '. a
[Revised at 34 Fla. L. Weekly S2
police had received a'tip ofcrimiDal prepcmdenmce of the evidence violates
(FIe. 12123/08), noted in this issue
activity and observed other holding of Apprendi asGXplained by
Blokely v. Wa.rlrlngton.
,
of 1111' FPU' under Supreme Curt indications of criminal' activity,
Review waS' sought. and granted.
of Florida Notable Cases section.],
officer'and dog had a right to Wa1k to
FebiuarY II, 1009, caso no. SC05-2047
the right-to-counsel warnin8
front door and werelawfblly present
specifica11y infonn the defendant
there at front door ofresidence; ewen . (State v. Isaac). Oral arpment Will bo set
'
that that right is for coUnsel ,if dog sniff constituted an illegal by separate order.
"during~ the qu~oDing also~
search. "'1dence seized at resideJlco .
II
AcContinslY,' Rigterlnk's first-,' would be admissible under inevitable McGrljfv. State, 32 Fla. L. Weekly 0520
degree murder convictiQns and
discovery rule because officer would , a (Fla. 111 DCA 2007)
In McOrlft: it was- opiDed that the
sentences of death were reversed
have detected marijuana odor as he
and the case was remanded for a
approached the residence door.' .
decisions in Apprendi and Bltkly apply
new capital trial.
Review of' the, Opinion was to cases where. defendant is resentenced '
sought due to a certified contliqt with .after those cases waa decided.
other districts. The Supreme Court
Rcwiewwas sought 'due to a certifiod
~ct
and.was granted Fefmuuy 11,
of Florida 8I8Dted review of1I1e case
Cases Grutecl Review
(no. SCOB-201), and the order was
2009, case no' SC07-436 (State v.
C E. I.·v. SIQIe~ 33Fla. L Weekly ,~February 4,. 2009. ' . Oral McGrlJ!). 0raI1IIJ1IIIleDt wiD be set by a
argument will, be set .by separate ,separate order.
00120 (PIa. 21111 DCA 2008)
The Second District Com of order.
Nelson v. 'State, 993 So.2d 1072 (FIa. 4th
Appeal opined in C. E. L's case
that a person who knowingly fails Fleming v. State, 926 So.2d 475 (Fla. .DCA 2008)
I-DCA 2006)
It was opined in Nelson that a
to heed a police order to stop is
The
First
Disctict
Com
of
motion
for contin1l8JlCO of tiiaI filod after
guilty of resisting, obstructing. or
speedy trial' tenn expm,d but before any'
opposing a law en(orcement Appeal in Fleming opined, in
ofticer without violence under pertinent part. that there was no eaOr notice of expiration invoked the right of
section 843.02, of' the Florida in the scoring of points for scwere ' a recapture .·nullity. Thus, a certified
. Statutes.
victim injUry where such was· found question was iSsued: Does a~ for •
It was fiuther opined' that an' by jwy when it convicted Fleming of continuance made after the eiqrirati~ of
offimso UDder section 843.02. aggravated battery by causing great' the speedy trial periOd but before a
Florida Statutes. is' committed by a' bodily harm. permanent disability, or defendant files notice ofexpiration ,under
person fleeing' the, police. who pemianent disfigurement However, the rule, which. activates the P&bt of __

v.

must"

...

.

~g,:

~-

.....

Florida PriSOD Legal Penpectives
recapture, waive a defendant's
speedy trial rights under the rule?
Review was granted February
5, ~009, case no. &008-2325 (Sat~
\I. Nelson). Oral argument will be
set by separate onter.

District CoaJ1s ofAppeal
State. Yo Sinclair, 33 FIa. L.
Weekly D2813 (Fla. 311I DCA
12110/08)

II

Lawrence, Sinclliil' had filed a
rule 3.850 motion in the circuit
court to vacate hiS plea. because he
was not properly advised of the
immigration
. consequences
involved, and, he as-:ted that, had
he known of those consequences
he would not have accepted the
plea. The lower court Summarily
gianted Sinclair's motion, the State
aPpealed.
On appeal, the State contended
that Sinclair did not allege in his
motion that he was subject to"
deportation based solely on the
plea at issue. The State further
asserted Sinclair failed to establish
the prejudice required' under State
\I. Green, 944 So.2d 20S (FIa.
2006), because he was 51Wject to,
deportation on additional grounds
other than his plea, i.e..
overstaying his student visa.
In order to establish prejudice
as a result Of the failnre to advise a
defendant of the deportation
consequences of a plea, "[t]he
burden is on the movant' to
establish that the plea. in the case
under attack is the onlY basis for .
deportation. Only then can the
movant show' prejudice reSUlting
tiom the failure to advise of
deportation consequences in the
case under attack." Foresty. State,
9S8 So.2d 38, 40 (FIa. 4da DCA •
200S) (emphasis in, original), see,
also DumenJ,f0 \I. State, 988 So.2d .
1201 (FIa. j DCA 2008).
The lIppeUate court agreed
with the State's ~tentic:ins and'
found the lower court eaed 'in
gnmting' SincIaU's motion" thus,
reinstating Sinclair's se~tence and

judgment.. However, the opinion did
not precludo Sinclair fiom filing a
new
motion with
corrected
all~ons.

'

.

Web Y. State" 33 FIa. L. Weddy
02837 (FIa. 2d DCA 12/12/(8)
The appeIlate court in Robert
Webb's ease opined that the 'trial
erred· in reclassifying a' second-

814 So.2d 1133, 1134 (Fla. 2= DCA
2002). But in order for the enhancement
to apply, the State must prove· actual ;
possession. See: id In such context,
, "actual possession" means the firearm
must be carried on the person. See:
Washington V. State, 876 So.2d' 1242,
1243 (f1.a. 211II DCA 2004).
~
Accordingly, Williams' case was
, reversed and remanded to the trial court
to,strike the mandatory minimmn
designation for the sentence.

degree ,felony conviction for
aggravated battery to a first-degree,
felony because Webb used a firearm.
In the lower court the jury made Gilltam \I. State, 33 FIa. L. Weekly
no express or Unambiguous finding
D2SS5 (FIa. 2d DCA 12117/08)
.of guilt for aggravated battery, based
Douglas GilIiam-.sought reView of a '
on inflicting great bodily harm in
trial court's denial order of his "Motion
which the use ofa firearm,was not an
for ExCcution of Ministerial Duties By
essential element of the crime. The Proper Agency:Clerk of Court," Which
appeUate court further opined that lower court treated as a mandamus
.
because option on ihe' verdict' fonn . petition.
did not permit the jmy to find the
In the lower court Gilliam had filed,
.bodily-injuIy ~ of aggravated iDitially, a, "Motion For Disclosure of
battery without the use of a firearm
Itemi~ Cost For Public Reconis
or ability to expressly enhance that ' Request." Iil that motion, Gilliam asked
the circuit court to provide him with "the
type witP a separate fining ~ a
firearm was used, use of thefireann , specific' c;ost, attributable to him, of the
'"became" an essential e1eDient ofthe sentencing transcript,,! [in his case]."
crime charged and ~d not be ~ , The 'elelk of Q1at court responded to
to reclassify the degree of felony.
Oilliam's,
motion
with
an
See: Doziery. State, 677 So.2d 1352
acknowledgment letter of receiving the
(FIe. 2Dd DCA 1996);Crawft!rd \I.
motion, the letter included none of the
State, SSS So.2d 1131 (FIe. 2~ DCA information Gilliam sought
2003) (accord); and Cabral \I.' State,
Several months later, with no further
944 So.2d 1026, 1027 (FIe. III DCA response to his motion, 0i11iaIn filed a
2006).
"Motion For Execution of Ministerial
Webb's judgment and' sentence Duties By' Proper Ageney.clerk Of
was reversed aild the case was Court PUrsuant To F.S. Cbpt II9-Public
remanded for further pmreedings in Records Statute." This motion was
accxmi with the appellate court's treated as a mandamus petition, and was
opinion.
"
delJjed.
The lower court reasoned:
Gi1liam did not state a willingness to pay
Williams v. State, 33 FIa. L. Weekly , the cost of the, items besought and did
DisS3 (FIa. 2Dd DCA 12/1710S).
' not state· what legal duty the clerk· had
The appellate court opined that it allegedly failed to perform, 'further
was error for the lower court to , stating that OiIliam's motion ftIiled to
impose a tfueo.year mandatorY· meet the requirements for a maDdamus
minimum term for Cleveland B.
petition. The lower court also asserted
Williams' offense ofpossession-fo a, that it would not· determine' whether
firearm by a convicted felon where 0illia01. was complaining about not
th~ was no evidence Williams was
leceiving an .itemized cost 0r the clerk's
in actual p~on ofa firearm. '
failure to prodnce the items sought
Section 775.087. (2) (a) (I)
On appeal, the appeUate court
'"enhances . the sentence of a
pointed out". the obvious:
,An
defendant who 'actually possessed' a' extraordinary petition, as Gilliam's
firearm..... S,ee: Bundrage Y. State,
IDDtion was treated (mandamus 'petition),

Florida Prison Legal Penpectives
must contain a statement·of the
Anthony M. McDonald appealed between the Connecticut and Florida
facts on which the petitioner relies
the denial of his rule 3.850 ~otion. Statues. as was claimed. COUDSel failed to
for' relief and a request for the where the lower coJUt reasoned that detennine this mid object. maJriog
relief sought. See: Fla. R. Civ: P.
his claims ofprosecution deliberitely
counsel's performance deficient Such a
1.630 (b). Ifsuch petition states an
using false evidence in violation of claim is legally sufficient when filed
iDsoffjcient claim for relief; the Gig/eo Y. Stole, 40S U.S. 150 (1972), pursuant to rule 3.850. If Michaud's
trial court may dismiss it See:
and destroying evidence in bad faith· score were lower, his sentence would be
Davis Y. Stote, 861 So.:ld 1214,
in violation of AlUona Y. . shorter.
'.
1215 (FIa. 2ad DCA 2003);
Youngblood, 488 u.s. 51 (1988).
Based the appellate com's findings.
Holcomb Y. Dep't of Corn., 609
where not cognizable under rule. Michaud's rule 3.850 denial was
So.2d 751, 752 (Fla. III OCA
3.850.
. reversed and the case was rCVetsed and
1992). However. if such petition
The appellate court disagreed the case was remanded to, an evidentialy
states a prima facie case for re1iet:
with the lower com's determDiation.
bearing. or, in the alternative, an
the trial court must issue an
opining that such claims are
attachment of records that would refute
..alternative writ... See Fla. R. Civ.
cognimble under rule 3~850. See: the claims.
P f J.630· (d) (3), which "'is
Rivera Y. Stqte, 33 Fla. L. Weokly
essentWly an' order to show cause
S386 (F1a. 6/12108); and Swain Y.
Parent Y. McNeil, 34 Fla. L Weekly D29
State, 937 So.2d 1160, 1160-1161
(FIa. III DCA 12124/08)
why the requested relief should not
be granted.' .. Bostic Y. State, 875
(FIa. 3n1 DCA 2006).
. Richard T. ~arent. a Florida prisoner,
So.2d 785, 786' (FIa. 2nd DCA
Accordingly, McDonald's caSe., sought certiorari review of a .circuit
2004) (quoting COMe1' Y. Mid-Flo.
was reversed and remanded. foreaurt's denial order .against. Ids
Growers Inc., 541 So.2d 1252, .further consideration by the lower mlU1damus petition.
1256 (F1a. 2nd DCA 1989) once
court
, This case's background began when,
such writ has issued. the burden is
by prison officials. Parent was observed
on the respondent to come fOIWard Michaud v. Stote, 34 Fla. L. Weekly using a state prison computer to access a
with filets he conteDds supports his 'D23 (FIa. 4th OCA 12/24/08) .
personal e-mail account Parent was
issued.' .a .discip'
In.~. &~..
.-.nI't and 1¥IS.
refusal to perform its legal duty.
Michael Michaud appealed the
.
'~3
See: BOltlc, 875 So.2d at 786 and
summary .~deniaI of his rule 3.850 charged ~th "possession or use of a
SmIth Y. Stote, 696 So.2d 814, 816 motion where he contended that trial
ceUular tel~ Q1' any other typu of
. coURSel was ineffective for failing to . wireless communication device...
(Fla. 2ad DCA 199.7)
It was shown that· Gilliam's object to improper scoring of his out
Contrary to the lower com's deoiaI
of state convictionS which, if of pareoi's mandamus. the· appellate
motion did contain s¢licient facts
properly ·scored. would have resulted . court opined that there ",as insufficient
to support the relief he sought.i.e.,
in a reduced senteDce..
.
cost of a specific transcript As
evidence pzaented, in the cast CO prove a
Florida Rule of Criminal wireless devise was used. Furthetmore,
custodian of judicial records the
clerk had a legal duty to respond to Procedure 3.704 (d) (14) reguires ~ . the Departmcmt of ~ did not
Gilliam's request for cost trial court to include. under .prior refute Parent's factual allegation that the
information. See: Hogan Y. Stote, . record. offenses ~tied by the . computer used was a hardwired des1dDp
983 So2d 656, 657 (Fla. 2nd DCA
offender in . other jurisdictions. model. which was plugged jDto thO waD
2008).
Moreover, Oilliam These convictions "are scored at the and.used 8, DSL connection to access the
severity level at which the analogous Intemet. As a result, die Department of
substantiated his request by
or parallel Florida crime is located... Corrections failed to satisfy- the
attaching his initial motion and the
clerk's response to .the "1reated. Fla. R. Crim. P.3.7M (d) (14). In
evidentiaIy. standard 'of Superintendent v.
Holybrlce Y. State, 753 So.2d 621
Hili, 472 U.S. 445 (1985).
..
mandamus petition." t Thus. the
. The mlU1damus den1a1 was quashed,
lower court should have issued a (aa. 4 1b DCA 2000), it was opined
that when applyiilg such rule, courts Parent's certiorari was
show cause Older to the clerk.
and the
Accordingly, the case was must review "only the elements of cause was remanded for further
reversed and remanded for further·· the out-of-state crime, and not the PJ'O'W"'inp. [The FDOC"has since
underlying facts... .. Id at 623.
moved to amend 1I1e rule to include
Jl!'OCA'f'dings. including issuance for
"[W]hen
the degree of felony: is hardWired computas.)
a show causcorder to 1I1e clerk and
grant
Gilliam's
mandamus ambiguous or the severity level
cannot'be determined. the conviction 1JIUrett Y. SIDle. 34,& L Weekly 030
pebtion.
.
must be scOred at ,severity level 1." . (FIa. 4tJa DCA 12/24/08)
F1a. R. Crim P. 3.704 (d) (14) (E).
McDonald Y. Stote, 34 Fla. Weekly
John Barrett.had tiled a rule 3.850
I!lOtion' in' the lower cOurt· that alleged
DIS (PIa. 3n1 DCA 12124/08)
In Michaud's case, it was opined
that 'if there were. .ambiguities . ineffective assistance of counsel for, 'i,;.
Ii
r

grant:t.

'. T"~"

Florida Prison Legal Perspectives
failure 10 adviSe of an involuntary
Tapia v. State, 34 Fla. L Weekly D36
,
intoxication defense. 'The motion (FIa. 2ad DCA 12/31108)
was denied based on the reasoning
Javier Tapia sought EevieW ofthe
of. the 'State's respoDse to show lower court's judgments and
cause, where it was 'opined the
sentences for his offenses, where, in
claim was conclusively refuted by pertinent ,part, he claimed it was
showing plea hearing records that error for the lower court to impose
indicated Barrett acknowledged investigative costs, which was
there was rio basis for an insanity Preserved for appeal.'
defense.
'
The inVestigative cost Tapia
On appeal tram the denial, the
complained about are authorized by
appelIatC court noted reversal of a section 93827 '(I), Florida Statutes
similar denial of a role 3.850 (2006).
That section however,.,
motiQll, Scott Y. Stale,' 779 'So.2d specifically provides that "conVicted
284 (FIa. 2ad DCA 1998). persons are liable fOr payment of the
However, the state did not disp\lte ,documented cost of prosecution,
Barretfs allegation that counsel inCluding investigative coSts incurred
failed to advise qf the involuntary by law enforcement agencies."
intoxication defense. Rather, it (Emphasis added.) Theie was no
suggested that Barrett's knowledge documeidation reflected of such
of the insaDity defense was costs in Tapia's case records.
tantamount to kilowledge of the Therefore, the appeal court strock the
imposed costs. See: Jones Y. State,
inyobmtary intoxicatiOn defense.
The distiction between thO'two 988So.2d 15, 16 (Fla. 2n DCA
defenses was recogniZed by the
2008).
, Although the' costs were struck,
Florida Supreme COUrt In Cirack Y.
the
case was' .remanded, . with
State, 201 So.2d 760, 709 (Fl8l
1967). Wbile the insanity defense instructions that the lower court
may 'subsume ,the )ilvoluntary reimpose the costs .if the statutorY
intoxication defense,-;the defenses requirem~t was met.
are not the same. See: Brancaccio
Y. State, 698 So.2d S97 (FIa. 4*
DCA 1997) (opiniJIg that the Rosado v. StDle,34 Fla. L. Weekly
0187 (FIa. 4lb OCA 1/21/09)
standard jury instruction' on
Elias Rosado' sought review of
insanity did not apprise the jUlY of
the 'involuntary
intoxication the lower court's order that denied
defense). Thus it was opined' in his mandamus petition, where he
Barrett's case that an involuntary requested the lower court to'order his
intoxication defense would negate appointed counsel 'to submit to him
the specific intent~lement of a' copies of documentatimr from his
crime, whereas' the insanity pi'evious litigation.
Although "[f]i1es prepared and
defense is a complete defense to a
crime. .
,
. maintaiDed by an attorney for the
As areault of the findings in purpose of representing a client are
Barrett's case, it was opined that the attomey's personal property....
because Barrett's rule 3.850 Transcripts [or record documents]
motion alleged he had' taken that were prepared at public expense
multiple prescribed drugs on the . on behalf of an indigent defendant
" day ofthe criJ:ile, he maY very well
must be .provided to tho defendant
have been entidedto the .without charge for copying~" See:
.Potts Y. State, 869 So.2d 1223, ins
involuntary intoxication defense.
'
The case' ~ reversed and (FIa. ~ DCA 2004).
remanded for an evidentiary . ' Accordingly. Rosado's case was
hearing, or to attach· record to reversed and remanded for the lower
court to grant the mandamus petition
refute the claim.
to the extent that it will be consistent
12

may

-,

.._,

with the appellante court's opinion as
found in Potts.
State v. McCartney,' 34 PIa. L. Weekly
0187 (FIa. 4lb OCA 1121/09).
The State sought an appeal of tho
lower court's decisi~ that dismissed
William F. McCartney's charge of first
degree murder which was based on death;
cause by an overdoie of methadone that
was sold to the victim by McCartney.

Section 782.041(a)3, Florida Statutes
shows that m~e is not a drug
.enumerated that enables one to be
charged under that statute,
Consequently, the lower court was
opined to be conect in ctismissins
Mccartney's chBrge, thus aftinning tho
decision over the State's mguments.

Jenkins v. StDte, 34 Fla. L. Weekly D190
(FIa. 3"' DCA 1/21/09)
,
.
Engino Jenkins mgued on appeal that
the only evidence the substance was
crack cocaine came from the testimony
of a detective, who had testified that he·
could not identifY tho substance; he
could only say that the transaction he
was consistent with "thousands" of
similarly
illegal,' "hand-to-hand
tmnsaetions" he had seen throUghout his
career. (The substance had not· been
recovered at the time of Jenkins' arrest)
To satisfY the elements of Jenkins'
char8ed crimo under section 893.13 (1)
(c), Fla. Stat, the State must establish
.that (1) Jenkins sold,' III8IlIJfacture
delivered, or possessed; (2) a controlled
substance; (3) within 1000 feet; (4) of a
school or child care fiIcility. It was
opined that although the 'demctivo
testified he had a clear view of the
tnmsaction, he did not testifY ho saw ~
substance or couldJdentifY it other than
custom. Tho· State faiIed to prove the
second element aforementioned.
, Citing numerous local, non-loc:aJ,
and federal cases, it was opined to
reverse tho case and remand for the
entering of a judgment of acquiual fot
Jenkins.'.

saw

Florida Prison Legal Perspectives
exam room, testified that he did not observe anyone
Punching the prisoner, but was present when Off. Oppe
pushed his way into the room and with Langenbnmner's
encouragement ot; "Hey Oppe. come get ~". ~ him
begin kicking the prisoner. Rhodes said he ordered.Oppe to
Two fonner Charlotte Correctional Institution prison
stop whic4 he did. .
guards were arrested and charged Feb. 27,'09, after a
Another guard who arrived on the ~. Clint
Florida Department of Cotrections investigation found Pigatare, also said that he did not observe anyone beat the
that they brutally attacked and beat prisoner at ~ prisoner but did see Off. Oppe kicking him as
institution and then lied,. and tried to get others to lie,
Langenbrunner aDd Cox held him down. Pigatare testifipd
about the incident.
that later Langenbrunner tried to intimidate him into not
The .investigation was sparked. when a Senior reporting the incident
registered lU111le at CCI, Matyann Henry, filed an
The investigation noted that the Use of Fon:e lJ'POIt
incident report stating that w.hile she was intervi~g a
prepared by Langenbruner and Cox after the incident
pri,son,er (name withheld by FPLP) after he' declared a claimQd that the prisoner threatenocl them and dum rushed
psychological emergency saying he was feeling suicidal,
them in the exaniroom, following which they ~ed him.
that two guards who had escorted him to the exam room, as he continued' to resist their order to stop. Then, they
Sgt. WilliamLangenbnmner and Off. David Cox,
claimed, they simply held him down un1il assistance arrived.
suddenly attacked the' prisoner when he .exchanged .
The investigation concluded that LangenblUDllOr,
words with one of them and began beating him. The Cox and Oppe had used unjusfified JIDd excessive physi9al
incident turned even w~ according to the nurse, when force on the prisoner and that Langenbrwmer. and Cox
three other stiards arrived and while four· of them held
falsified state records in an ~t to cover up their illegil
the handcuffed prisoner on the ground punching him, tI1e actions..
fifth guard, Shaun Oppe, began kicking him in the groin.
On Feb: 24; '09, the FDOC's Inspector General's
The nurse states that at. DO time did she observe the
Office 'tmned its inveStigation rqJOrt over to the State'
prisoner resisting or threatening the guards.
.
Attorney's Office with a reco~OD that criminal
A few minutes tater, after being ordered to leave charges be pursued. Threo days Imer Laog~ and
by one ofthe 8uards. "Nurse Hemy told investigators that
Cox were arrested and charged with baItmy.on a prisoner
as she walked past another group .of guards she was
with malicious great bodilY harm 8Qd submitting a· false
threatened. by one. of them. "Be careful what you say statement. Shaun Oppo was' not immediately anested and
and write because there are officers here that will find
cluuged, though all tIueO guards ~ fired bY FDOC••
out where you live and what you drive," Hemy s&Ys she
was told. She couldn't identify who made the 'threat,
(Soune: FDOC hrVestigation Report #08-S4466; nOWllpllpCr
however, because she hadn't been working at CCI long
mUcl~J
..
and didn't yet know many ofthe staffthere.
Although they failed to initially come forward
and report the in.cident themselves (as· required by.
,-Commentary- .
Florida Law), during the ensuing investigation c0workers who were witnesses did provide incriminating
Prison Canteen Prices
testimony against the guards who beat the prisoner.
, Soar
Accorditig to an officer who was working in the control
By
Mark Landon
room of the confinement dorm where the beating
allegedly took place, she observed a gu8rd kicking the
March' 30, '09, without any Warning, die private yender
resttained prisoner in his genitals.
ftom her vantage ,
point could not see the guard's head to positively
that. operates the canteens inside all stato-run Flcnida pdsoDs
identifY who it Was. This officer also said,that she was
increased prices so high "that the prison population was
later llueatened by Sgt. Langenbumner who got in her stunned· The veDder, Keefe Conimi!!S81"f Netwotk, which is
face, repeatedly telling· her, "You didn't see anything."
based out of St. Louis. Mo., has ·con~ with the Florida
Sho also testified that she had observed Langenbrtmner Depaibnent ofComclions since October 2003 to iIupp1y and
.in the past threaten other prisoners telling them such . nul the canteenS where prisoner purohase hygiene items,
things as. "Ifyou c:ome out I'D split you &om ear to ear," writing mamriaIs, tobacco ~ coffee,' SIIldwicbCs,
-and telling mmateswho made suicide gestures that he~d
macks and soft drinks. The company,' 'one ot; . jf not tile,
• &&stomp their gum for their trouble" and "bust the
biggest prison and jail oormrrisWy Vendcn iJi'~ u.~ bas
niger's head," or. "make sure the mother-f-ker always sought-to ~e prisoners the highest prices'itcould.
bleocIs."'
'.
On top of making a healthy profit dlo CClllpmy ~ has to
'.
Sgt. Ryan Rhodes, who was' also in the control pay the FDOC for .dle privilege· of geuingthe ~
room when the altercation started and who rushed to the monopoly. But this I~ priCe increase hai exceeded what

Prison Guards Charged
In Prisoner's Beating

a

B.

on

II

Florida Prison Legal PenpectiVes
Keefe bas done before and brings the economic,
This latest price increase is apparently intended to
dowDtumbeing experienced bY those on the outside into . allow' Keefe to recoup profiis that company felt that it lost in
. the past two years with the cost limitation former Secretary
the prisons.
Before Keefe •took over operation of the McDonough placed in effect. Abandoning any pretence at
canteens, when the FDOC itself ran them. a State law set reasonableness,· the average price' increase for all products
a maximum cap on the, amo~ of profit' that could be being sold by Keefe in the prison canteens is over 39
made. That law allowed maximum markup of 33 percent. While some items that don't sell very well only had
percent abOve'v4wlesale cost and acted to keep priceS slight price increases. most of the more popular items had
reasonable for prisoners' families (~ho are the ones who their cost increased SO, 100 and ISO percent. Almost all of
generally supply prisoners with funds to spend in the the lower cost small snack items were eliminated so
canteens). '
•
.
prisoners have no alternati"e but to buy the higher priced
Under the administration of fonner Gov. Jeb snacks, if they can afford ~
It is going to be interestiDg to see how this situation
Bush. however, the decision was make ,to pnvatize
several areas within the FDOC.'canteen operations being' works out inside ,the prisons. With the U.S. economy in a
one. In ,Order to' entice private venders, and allow the recession it's doubtful prisoners' families and friends are
FDOC .to· receive a substantial commission from the going to be able to send more mo~ey. In fact. the opposite is
the probable reality.·
.
vender awarded a contract. the first step taken was to
. ,Prisoners who were b~ getting by before because
amend the State law,' setting the profit cap' on prison
canteen sale~. ' The numeriCal profit cap was removed they receive little or no money from home are going to find
from the law and ~t8ced with the am~ous cap of it hard to watch others be able to' pui'chase hygi~ items.
"fair market value. to' 'SuCh· undefined cap essentially " tobacco, coffee. snacks and sodas when th~ can'f. PRIDE
allows prices to be cbai'ged up to, and even ext"Mding,
workers who earn a pittance in the prison industries are
convenience store prices for low quality, .offbrand items going to find that their meager wy no longer stretches from
and where such operation is • up as a monopoly one paycheck to the next. Even those whose families want
allowing no altemativechoice and DO comjletitipu. the to provide their incarcerated lovedones with money to go to
consumers. prisoners. could be gouged at the whim of ·canteen are going to find them more of a bwden.
One c8n only hope that this situation does not lead to
the private· vender and FDOC. Which' is what has
oc:cuued.'
.
more thefts. robberies, or violence in Florida's prisons..
Under the initial no-bid cOntraCt. awarded to However, when you take· away 'or make it iinpossible for
someone to have anything you often create a person who
Keefe the company was allowed to increase its prices for
canteen items 10 percent every six months.' This the cares about nothing: Whoever's bright idea it was to allow
company religiously did until 2006 when ,it waS Keefe to gouge prisoners and dteir . families' in, this was
should be held to bear· reSponsibility for any consequences.
discovered that former FDOc Secietmy James Crosby,
.
Jr.,bad set up the canteen contract so that he received
kickbacks Keefe. in order to get the contract. had been
required to Subcontract part of the operation. the'prison
Cutbacks in Store for
visiting park canteens, to,a mend of Crosby's, who in
Florida Prisons
twn cJwged visiting families, ex:OIbitaot prices for food
'By Jason McCalley'
items and paid' Crosby a' kickback under the table.
As of Dec. IS. '08, there are now over 100,000 people
(Crosby and another FDOC official were later' charged
and convicted in Federal court on this kickback scheme incarcerated in Florida's pri~ns and 25,000 more are
and sentenced to federal prison.)
expected to increase that number in the next five years. In
Once Crosby :W8S ousted as secretary, then
the past two decades, Florida's prison population has grown
Secretaiy Jim· 'McDonough ordered a review of all . ~ almost SO ,percent. Only two other states,Califomia and
FDOC con~ especially Keefe's. ,The result was Texas,jc;>in Florida in having 1Q0re than 100,000 people in
Keefe. having to bid for a new contract in 2007 that ouly . prison.
allowed justified 10 ~ markups once a year on
Every year Florida releases approximately 40,000
itemJ.·reduced the price of many items that were ' prisoner who 'CQmplete their sentences back into the
community, and eventually 90 to 95 pen:ent of all prisoners
overpriced. and required many, low quality items to be
replaced willi name brand products. . ; ,
will be released. The ones released are quickly tep\aced,
Last year Jim, McDonough was forced out as
however, by new offenders or by the same ones returning to
FOOC secretmy (when he became to vocal about prison for new crimes.. Florida has one of the highest
reforming the prison systeni to include rehabilitation and recidivism rates in the nation. ByjuggliJlg the statistics, the
to. Rduce recidiVism) and replaced with Walter McNeil.
Florida Department of Corrections claims its recidivism rate
Now it appears that Keefe has once again been given is "ouly" 33. percent. Yet. more, than half the people in
fieo rein to cbalge ex:mbi1ant prices in the canteens.
prison, in the state now have' been in prison before, ~eaning

a

.

._teen
,
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~."
. ..
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"

Florida Prison Legal Penpectives
the recidivism.rate is actually over 50 percent. And that .'
number can be expected to increase in the· current
economic situation as the FDOC and state ~ers.
. fnrtber cut progiams that have been proven to reduce
recidivism - specifically, education and substance abuse
programs. ,
.'.., .
. Already. cut to the bone in recent' years. those
programs are intended to prepare
for life after .
they are released and to help prevent a return to a Ufe of
crime. Florida's lawmakers, however, seem to be stuck
in a tough-on-crlJne.and-priso~ mindset and damn the
lcmg,tenn consequences ~ state ~ .or public

prisonm

safety.

.

FDOC's Secretary Walter McNeil, the foDneI'
police chief of Tallahassee, even recognizes the problem

of cutting the prison system's few'remaining programs
that have repeatedly been proven to help reduce crime
and re.cidivism.
"If you can't read, if you don't have any.
employable skillS, if you have, a substance abUse.
problem and you've spent three years in prison and you
come out and you stiI1 have those issues, what the heck
are you going to do?" asks McNeil "You're going to hit .
my mom or someone else's mom or somebody's child
over the head breaking into someone·s house. It's too
costly to continue this uninformed way oftIyiug to fight
crime."
But efforts to find alternatives to prison and
reduce recidivism find little support in Florida's
Legislature where being labeled as "soft on crime" is a
devutating ~ 'and often an end to a career in po1i1ics
or public service.
.
While most other states are looking at or
. implementing w.ays to prevent having to incareende
nonviolent otrenders and ramping up programs to ~help
those in prison from comiog'back, Florida's solution is
to forge ahead building more prisons while making
devastating cuts to public schools and education.
,
. Although nearly 30 percent of Florida's
prisoners are seJVing time for drug violations, substance .
abuse progiams in the prisons .have .essentially been
eliminated. Likewise education programs, although the
average literacy mte is about 7th ple.
The cuts have heightened concems by some that
Florida's tough-on-e:rime crime laws (enacted when the
sIlde was flush with lI1OIlCY)-includiDg a.mandate that
aU prisoner, regardless of th~ crime, spend 8S percent
oftheir sentence behind bar:s-are digging the state'into a
deeper crime hole.. Others, however, see nothing wrong
with the direction being taken. Sen. Victor·Crist,
cbiirman of the Senate crimiDal justice approPriations
~ says the 85 percent mandaW is.1ike1y going
to stay. "I'm confident that will not change, at least nOt
in my lifetime... Said Crist.
., .
Secretary McNeil, has· set up two nHntry
programs, one at Baker CorrectioDal Institution and

another at' the newly..:opened DeMilly Correctional
in an effort to reduce the numbers nmnins to .
prison. But with the number being released each year-two
institutions' devoted to re-entIy efforts can only affect a drop .
in the bucket· Wrthout funding to increase re-entry.efforts,
McNeil says he's going. to have to rely ODvolunteers 10
. prepare prisoners at the tWo filcilities with 'York ~ and
intense education.
. '
And it doesn't appear that will ,be the only cuts
inside .F1orid1is prisons. FPLP's soun:es repent recent cuts
in medicine and medical care to prisonen.·one oftf1e biggest
expenses that FDOC has. Since the FDQC'has taken back
over food service in the prisons (ftom the private compmies
that had heeD proWJing ~ for the past several years.. see
.last issue ofFPLP), sources report that cuts have been made
in what prisoners are fed, and that
Diore c:ufS to food is
expected in ~ing mouths. And it's le8SOD8b1e to axpect .
other cuts will be made as the budget cnmch continuos. •
IDstitutiOD,

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Florida Prison Legal Penpeetives

Loren D.· Rhoton
1

PIl!ll0.s.tc.o.n.v.ic.ti.o.n.,A.tt.o.rn.e.y_ _.,

_I

• .Direct AppeaJs .

• Belated Appeals
•
•
•
•

Rule 3~850 Motions:
Sentence Corrections.
NewTrials
Federal Habeas Corpus Petitions

412 East Madison 'Street, Suite 1111
Tampa, Florida 33602
.
(813) 226-3138.
--Fax (813) 221-2182
Email: lorenrtioton@rhotonpostconviction.com
(
..'
Website: www.rhotonpostconviction.com
\

'

.

..'

The hiring of a lawyeris an important decision that should not be based solely on advertisements,
. Before you decide, ask us to send you free written information about bur~uallfications,

.

.

..

.BUY THE BOOK - ON SALE NOW,
POSTCONVICTION RELIEF FOR·THE FLORIDA PRISONER
A CompilatiOn ofSelected Postconviction Corner Articles
A collectionlofLoren Rhoton's Postconviciion Corner articles is now available in one
,convenient book geared towards Florida iiunates seeking justice in their cases. Insights base({
on professional experience, case citations, and references to the relevant roles ofprocedUre
are provided.: This book is specifically directed toward tho~e pursUing postconviction relief. .
To order, send 520.00 in the form o'a mOD;ey order, cashier's check or inmate

bank ch~ (no stamps, cash or personal checkS please) to the address above, or
ord~ronliDeat www.rhotonpostconviction.com.
; . Ii·····:;-.

I'
I

Flo~ida

Prison Legal Perspectives

by
Ryan J. Sydejko

POST CONVICTION
CORNER

By now,frequent readers ofthe Florida Prison Legal Perspectives ~d, more ~caIly,
Post Conviction Comer, are familiar with Florida Rules ofCriminalProcedure 3.850 Motions
for Post Conviction Relief. Issues raised in Rule 3.850 motions are frequ~t1y claims regarding
the ineffective assistance oftrial counsel. Some may not be'aware, however, that a similar rule
exists for examination ofthe penonnance of appellate counsel. .Florida Rules ofAppellate
Procedure 9.141 pert$s'to the ineffective assistance ofappellate counsel. For'example, iftrial .
counsel penonned effectively by properly pres~g a potential trial error, and appellate counsel
failed to raise that issue on· direct appeal, a rule 9.141 petition is ~e-propervehicle for review of
appellate counsel's effectiven~s. Forisso v. State, 968 So.2d 677 (4th DCA 2007). The '
ultimate remedy in such'situatipDs is commonly a new appealon the particular ground in which
ineffectiveness is es~lished. ,~ee Barnes v. State, 993 So.2d.1012, 1013 (Fla. 2d DCA 2008).
, Rule 9.141 petitions are to be filed in the district court ofappeaI where the direct appeal
was taken or should have been taken. f.la R. App. P.9.141(c)(2). Similar to rule 3.850 motions,
it is important to raise all potential grounds for reliefin the first filing, as second or successive
peti~ons·~ be dismissed without the court reachiDg the merits:, Fl~ R. App. P. 9.141(c)(5)(C)..
Once the potential grounds for relie(~ve been chosen, the rule clearly sets forth the requisite
contents ofthe petition. Fla.R. App. P. 9.141(c)(3). The'petitionmust incl~e, in.te.ralia, the
date and nature Qfthe lower tribunal's order sought to be revi!3Wed; the name ofthe lower
tribunal rendering the order; the nature, disposition, and dates ofall previous court proceedings;
ifa previous petition was filed, the reason the claim in the preSent petition waS not raised
previously; the nature ofthe relief sought; and, the specific acts sworn to by the petitioner or
petitioner's counsel that constitute the alleged ineffective assistance of counsel. Fla. R. App. P.
9.141(c)(3)(A)-(F). The petitioner must ~sO serve copies ofthe pleading onboth the attorney
general and the state,a~mey. Fla. R. App. P. 9.14~(c)(5)(A). The petition .must also confo~
with the requirements prescribed in Florida Rules ofAppellate Procedure 9.100. Fla. R. App. P.
,9.141(c)(I).
.

.

..

,

The most comnion hurdle to reliefis most likely the time limitation for filing. The rule
presen"bes a tw~year period oflimitations for claims ofineffective aSsistance ofappellate •
counsel. Fla. R. App. P. 9. 141(c)(4)(B); see also Melarav. State, 997 So.2d 1135 (Fla. 3d DCA
2008). The two-year period is not tOlled by the pendency ofother post ~nviction relief
proceedings, howev!"1". Forisso v~ State,,968,So.2d 677, 678 (Fla. 4th DCA 2007). 'In other
words, the deadline for filing rule 9.141. petitions is two~years following issuance ofthe mandate
on direct appeal, regardless C?fhow long subsequent post convictiop proceedings may last. Id.
Thus, there may be instances where pursuing a rule 3.850 motion for post conviction relief
simultineouslywith a rule 9.141 petition is prudent. See Francois v. Klein, 431 So.2d 165, 166
(Fla. 1983). The Francois court opined that the simultaneous filing ofthese t)pes ofmotions is
pennitted as they do not overlap in the perfont;1ance ofcounsel being reviewed; Id. "Allegations

Florida PrisoD Legal Penpectives
ofineffectiveness ofappellate counsel ..• 'do not·relate to anything don~ byor transpiring before
.the trial court", and thus do ~ot coJiflict with claims ofineffective assistance oftrial counsel,
which pertain to performance before the trial court. ld. Since the two collatefa1 attacks are
separate and distinct, there is no ~ger ofconflicting or confusing ruling by different courts on
the same issues. Id.
An exception to the two-year period oflimitations

does exist, however.

Fla. R. App. P.
9.141 (c)(4)(B). In the event the time period has expired, a petitioner may,'although itappears
rarely granted, present an untimely claim ofineffective aSsistance ofappellate counselby .
alleging, under oath with a specific factual basis, that the petitioner was affirmatively mislead
.regarding the results ofthe appeal by appellate coUnsel. Melora v. State, 997 So.2d 1135 (FIa. 3d
DCA 2(08).
.
Potentially the most important factor to consider when determining the timeliness ofa
rule 9.141 petition, is the existence ofa. resentencing hearing. Under preVious v¢rsions of the
rule, the tWo-year period oflimitations began to'run upOn finality ofthe conviction. In re
Amendments to Fla. Rules ofApp. Pro. - Rule 9.141 and Rule 9.142, 969 So.2d 357, 358 (FIa.
2007). This created the situation, however, where a conviction is affirmed on' ~peal~ but the
case is remanded to the trial court for resentencing. J.d. Thus, the period oflimitations would
begin to run, d~it~ .th~ fact that a proper sentence had yet to be pronounced. Id. Expiration of
the time for filing a 9.141 petition, therefore, could have potentially oCCUlTed prior to imposition
ofa l!lwfu}, sentence at resentencing. Id.· A 2007 amendtnent to rule 9.141 cured this deficiency.
In re Amendments, 969 So.2d at 358. The tule now expressly states that the two-year period of
liniitations does not begin to run until both the j,ud!PDent and sentence becoDte final in noncapital
cases. Fla. R. App;-P•.9.141(c)(4)(B). In other words, should a resentencing occur p~t to a
rule 3.850 Mo~n for Post Conviction Relief, a rule 3.800 Motion to Correct llleJ¢ Sentence, or
potentially sox,ne other means, the two-year period oflimitations for filing a rule 9.141 petition
does not begin"to run until that resentencing is complete; i.e. the judgment and sentence are final.
In re Amendments~ 969 So.2d at 358. Such a rule may breathe new life into chums that may.
otherwise ap~ procedUrally "mee!.
'

Ryan J. Sydejko is an associate attorney at the law office o/Loren ~oton, P.A. in
Tampa. FloHda, and is a member in good sta,nding with the Florida Bar. .Mr.
Sydejko is a published author on te"orist inveitigations and how they have"
reshaped the Fourth Amendment. Mr. Sydejko focuses primarily on
representation ofincarceratedpersons with post conviction matters in both State
and Federal courts.
Loren D. Rhoton is a member in good standing with. the Florida Bar and a
member ofthe Florida Bar Appellate Practice Section. Mr. Rhoton practices
a.1most exclusively in the postconviction/appellate area ofthe law, .both at tlie
~tate andfederallevels. He h'as assisted hundreds ofincarceratedpersonS with
their cases and has numerous wrltien appellate opinions •

J,'-

Florida Prison Leg~1 Penpeetives "

MOST fRE~lJEmY ASIEDQIJESTlQNS ABOUT PRISONER ufsum:
.'

.,BreUfder

, Q: Do I need a lawyer to maiDtain a·lawsuit?
If. You may file a lawsuit pro Be (acting as your own lawyer)
and take it to IriaI or ~tlIe it yourself ~out a lawyer.

Q: Will the court appoint a lawyer tome at
80me point?

Q: Must I rale a grievance before filing?
If. Yes. You must exhaUst your grievance proceclure until you
have a final ded&Ion from the secretary of Comlc:tlons. The
PLRA requires this for pIisoners only.
. .

Q: What is the time limit for filing suit in
Florida?"
.

no light to counsel in civil cases but
many lawyers will accept a pro bono case that Is referred::===by::th=e===If.=·=4=ye=818=,==gen~eraIly. The ftmltatioRs period In federal court In

If. PossIbly. There Is

court. Aorlda has, for example, the
, Volunteer ,lawyers Project. The ACLU
Nallonal PrIson Project or Ftorlda Justice
Institute .are other possibllltlas. Look In
The Florida Bar Dlrectory or Yellow Pages'
under "Civil Rights" or -Trial Attorneys. '

..olI!!

'

Q: Do I need to pay a raling,
fee or fee to serve .the
complaint on the defendants?

Aorlda Is governed by st8te law. see F.S.
§95.11. The Stalute of Umltatlons period
Nns from the latest of the last Injury or
when the cause of action was discovered
by, you exen:Islng. due dillgance. The
limitations perioCt for medic81 and legal
ma/pnlctIce actions In Florida wm be bvo
(2) years. Other types of suits may be
dlffer8nt 80 check state law.
'

Q: Sho"d I me a §1983
civll rights suit In state or
.fedenl court?

If. You may proceed wlo pmpayment of
costs even If you have no money at all. A

lien will be placed against future monlasln ,
your canteen account and a payment pfih .
eatablislJ~. (payments are usually 20% ~f
avg. monthly bal.) :Jbe flfing fee 1s.$35(lml ,
In federal court at this time.
'

If. In most ca.- It Is to your advantage
to file ,suits alleging a. deprivation of
" (fedflllfJ rights In fed8f11 court, although
you may file your §1983 In a state court.
There Is no pr8-sult Notice' of Intent to
Utigate required In (ederaI court, no
Thln~ about what Is
, lIm1tallon on damages qd your Jury pool
I~portant before fliing.
\sn't golng to 'be filled wIth.the Good Ole
Q: Bow much money can I .
.
Boys'
relatives and acquaintances like In
get if I win?
"some Nral counties. Federal courts are
also more. hospitable to federal constitutional claims. State law
If. 'In a Aorlda state court you are limited to $100, 000.00 per
00
claims
may also be "pJggybacked" on federal claims through the
defendant ($200, 000. maxinlum) In Federal courts the
"SUpplemental Jurisdiction" of the Federal court.
.
damages you ask for are only limited by what you can
to
the Jury.
.
:

prove

Q: Should I me a "class .action" Iaw8uit on
behalf of aD the ot_er prlsonen?
,

Q: It is my word' against theln - 'how caD I
possibly win with only Inmate witnesses?
Many lawsuits haVe 'been W!ID with ·"onJt Inmate
\nmate testimony, like any persons, may be crosa, examIrted as to bias and credJbUity In front of the Jury. The
defendant offldafs may be Impeached with their past hlstoiy of
abuse. disciplinary record and prlo~ bad acts too...

k

~.

.

If. GeneraIly speaking: No. It will be virtually Impossible for
you, 88 class representative, to miJnta!rl the. pace of DtJgatIon
pro se. Also, your mistakes 'could cause the entire· class to
suffer. You may join a few other plaintiffs, however. That Is not
. to.say that an aitomey won't becom8lnvolved If somapolnt Iri
your. suit, 88 das8 repreSentative. :iplasa ActIons are ItIt types
01 svlts that the ACLU generally handles. eJthough many begin
. '88lnd1vlclu~ handwritten. pro se compIalnts. .' .

Florida Prison Legal'Penpe~tives
, Q: Will prison authorities retaHate agaiJ;lat
me for suin'g them?
'

Ai. Possibly. ThIs Is truer of the lower level line officers such
as guards you we for'things fike exceSsive force. It Is less true
of higher officials who tend to be more eduC$ted and concerned
.thattheIr retaDatory acts might help you prove your case in coutf
.or cause you to amend your complaint with Uielr latest
vIOlatIon.... Generally speaJdng, the Good Ole Boys will stop
theIr Intiml~alicn game once they realize that your complaint has
been taken outside the confines of their IitlIe world and Is now
out oftheir control.
.

Q: Will prison authorities counterclaim your
suit to offset for "costs of bnprisonment" or
"subsistence fees?"
k This Is, .10 practice; much less of a 1II1!1!1!l.1!!!III1II!
probtem as- Is popularly believed for the
simple reason that most money suits are
settled. Where' a federal judgment Is
Involved, .the Federal remedy may "preempr state law In th~ area and' would
prohibit the state. from attaching the
proceeds.
see: F.S. §960.293 and

§960.297.

~

256 F.3d 1276(11 111 Cir.

(FIa) 2008); BuY. 34F.3d 658.

o

•

youiD name a defendant almply because you want discoY81Y
~nterrogatorles,request for production, subpoenas, etc) from
thatdefendanl When you name multiple defendants you
Increase the "nuisance value- andlor lsetuement value of your
su~ but you also Increase the costs and complexity for yourself
(photocopy and man costs).

Q: The officer who beat me was firedlretired
so the process server C8nnot.serve him at the
prison address any longer - How will they
find their home address to serve the
summons? .
k Public records. Most staff IIv8s In the county the prison is
situated .In or a surrounding county,. therefore haYe ;YOUI
Investigator,. attorney or friend visit the courthouse and &eardI
.
the Real Estate Deecf Name Index under
••••
Grantor or Grantee names. DrMng records
are avallable online at most count)
·courthouSes. ~ are Voting RegtstralIon
records.' Also look up Tax Assessol
records onOne and cran't forget the phone
bookl If you don' have anyOne to.help you
with this then you may use varlous fee.
.based InfOrmation services online .such as
Autotrakb Of: InteDlusra•
0

0

0

0

0

0

Q: Where do I start?

Q:'How long will this take to
go to trial or settle?

A: . VIsIt the law library and read soma 0:
the at8ndard texts available tbere on, tIM
.subject matter of your sull EY8fYthIng·frorr
Deliberate In<fifference to MedlqaI Care III
'ExcessIve Force to Bogus DlsclpllnBrJ
Reports Is covered there, Better yet
pu,mase your own copy of the "PrIsonen
lawsuit .Cookbook &. CI\1I RIghts Defense Manuar by BreI
F~ster or the"lSslf, H~lp' utlgatfOn 'Manual by Dan ManYille
Also read your F.P.LP. back Issuesl

A: Two years for trials and one year for
setuements. This varies greaUy with the
. strength of the case, damages Involved,
consIderations of lawsuit minimization' and
precedent as well as your preparedness to
go to 1rIaJ.

o

Q: Who should I name as a defendant? .
A: A typical suit has three or four defendants but there Is no
IlrttIt to how many you may join. For eXample, In a typical
excessive force lawsuit you would name the offlcer(s) who beat
~, the oftk:ers who stood by and watched, the sUpervisor who
ordered.1t, and the warden for hIs reckfess or dellberate failure
to traIiI, control, supervise and dlsclpnne that·officer In the pastproximately resulting In' your InJurfes. There may be a (state
.law} negtigent hiring/retention Claim as to ~e Warclen as well:
To n8lll8 supervisory officials It Is necessary to show their
persopaJ Involvement at so!Jl8 level 'such as malnt&;llllng a
custom Blldlor pofrcy of excesslve force or an 'unwritten poUcy of
relallatory beatings during prison disturbances. Sometimes
0

"

'''T''

M

Q: Why won't any lawyen reply to' m,
letten?
Q: Only a tiny percentage of lawyers. handle CM! Rights easel
and they cherry pick their cases for the ones with the hlghas
potential to generate punitIVe damages and fees. It Isn't tha
.your complaint Is merItIess; Irs JUSt that,' the tawyer has bette
pickings th!"' a. prisoner plalnllff. :This Is why most are hand*
pro se. Howe., once your pro se suit has survived tIu
Summary JUdgment or Motion to dismiss stage you may lim
more attorneys wUDng to aIgn on at lIlat point. Go for IU
0

r

Florida Prison Legal Perspe~t.!Ves ,
·v

M

Prison Guard Goes
on Rampage,
Two Dead, Two' Injured

Prison Guard
Arrested·
.
on Drug Charges

,

y ex-boyfriend just stabbed the hell out of me. He

stabbed me in my head, in my neck, 'in my chest
and.... he was stabbing me with something. You have to

A'.

Florida .Departtilent of ,Corrections prison guard
turned himself in to face federal cbug charges ~
5.2009.
Louis Bunch, 39, was indicted bya federal grandjul)'
for distributing cocaine twice- in September 2008.
.
, Bunch's attorney, Alex Morris, said none of the d~g
activity occulTed on prison grounds at· Wakulla·
Correctional Institution where Bunch had worked since
July of 2007.
.
Bunch was fJ,red by the FDOC on the same day that he
turned himself in and at his' first appearance a judge ruled .
that he can remain free until his trial in May~ ...•

hurry, rm bleeding\all over the place, Rebecca Ocker, 26,
a Florida Department of Corrections prison guard, told a
911 operator March 6, 2009., That was the first call that
authorities received about events that involved not only
the stabbing of Ocker by her ex-boyfriend, who was also a
prison guard, but that ended up with the' eX-boyfriend
dead, another prison guard killed, and another seriously
injured.
While Union County deputies were at Ocker's Lake
Butler home investigating her stabbing they received word
Prison Guard ·Charged
that the pickup truck belonging to her' ex-boyfriend,
_With Exposing Himself
Donald Bazzell, 42, had apparently intention~ly crashed
head-on into a Department of Coirections van about three
miles south of Lake Butler.
.
Both Bazzell, and the driver of the DOC van, Adam
Sanderson, 32 died in the collision. Fred Jackson, 41, a
he. Florida Department of Co~tions 'fired a prison
sergeant shortly after he was arrested and charged
passenger in the van was seriously injured in the crash and
with exposure of his sexual organs during the fust·week of
had to be airlifted to Shands Hospital in Gainesville.
March 2009.
Ocker was also taken to Shands with serioUs but not life'
Calvin Allen Tharpe, ~, of Chipley; had worked for
threatening injuries. In addition to being stabbed she told
the FDOCsince' 1994. According'to the department,
autborities Bazzell bad beaten her with a baseball bat
Union County Sheriff said. it was suspected that the
Tharpe was adonnitoiy sergeant at the Northwest Florida
Reception .Center, formerly Washington Correctional
head-on crash almost immediately following Ocker's
Institution.
.'
~.
stabbing was not an accident. Investigation showed that'
Bazzell was going 88 mph and crossed the center line to
According to a Bay County Sh~rift's Office incident
.strike the DOC van head-on with Ills pickup truck. There'
report. Deputy Larry Grainger noticed a suspicious vehicle
was no evidence that Bazzell tried' to brake before
near a playground early on~ morning 4lt the M,cCaUslamming into the van that was traveling in the opposite
Everett Park near Deer Point t.ake dam off US 231.
direction on County Road 231.
Grainger reported walking into ~e woods where 'he found '
"Certainly he was distraught, upset, emotional-s9me
three men standing in a circle about 1 to 2 feet apart. Two
of those things you are when there's ·a domestic situation
of the men" Tharpe~d D,avid Harry PbUlips, 51, of
with a weapon involved. Was he fleeing and accidentally
Youngst0'YDt were exposing themselves and "fondling on~
another," while the third man appeared' to ,be watebing.
or intentionally... ·ljust. don't know,~ said Whitehead.
according to the report
,
Investigators said the van carrying Sanderson and
- Grai~ger' alse) reported. tl1at Tharpe asked him to
Jackson was on its ~ay back to the North Florida
Reception and Medical Center, where both ofthose gUards . .overlook the incident because Tharpe was a fellow law
enforcement officer. working with the FDOC~ Grainger
. worked, having just complei~ a training exercise. '~azzeil
wrote that he could not overlook the incident because
and Ocker both worked at Florida State Prison in. child~n frequ~ntly ,play in ~atpark.· ,
neighboring Bradford County.
Both, Tharpe and Phillips .were arrested and charged
Union County were the stabbing and crash took place
.with exposure·of sexual organs•. The third man was issued
is the smallest CO"1DtyiJ~ Florida but. is, where prisons
dominate. the area is known as '''The 'Triangle' or "cradle".
.. trespassing citation. Tharpe and Phillips were .both
released on $500 honds. _ '
of the FDOC since it's where some of the state's 'first
prisons were built There
now seven major prisons in
the area. _

T

are

··If

Florida Prison·Legal Penpeetlves

DEPARTMENT OF CORRECTIONS
BUDGET"SUMMARY
'FY2007-DS
operating Funds
. 'Expencntures by Budget Entity: ..

Departnient Administration ':'''~''''''''''''''''''''''''''''''''''''''''''''!''''''''''''''''''''''
Security and Institutional OperationS.~;·
~ ~..:
: ;
:

$

Health 'Services

$

42'1-.922,191

$

268,434,193

~ ~

Community Corrections

!' •••••••••••• ••• ••••••••••••••••••••••••••••••••••••••••••••••

InforJIlation Technology..••..••..~
~.!

Programs

63.089.873
$ , 1.472.988.769

~

~

~

-$

~

:

~~ Operciting Funds

~ ~

$

:

24,679.670 .
. 44.503.242

;•..............:....•. ~•........ ~~.~ ..•.......•.•....•.••..... $ 2,298.617.938

Fixed capital Outlay Funds

.

To Provide Additional C~pacity

~

_

~

~

$

107,441,753

To Maint.ain Existing Facilities..•.•.••••..•...•....•....•......•......•...................•...•.....•....•............... $
Total Fixed Capital Ouday Funds
~..:
~
:
$

33,108,375

140.550.128

Total•..••.••..•...••.••.••.•••••.......•..............•••.••.•.••••..••••~ ••..••........_.••................•.•••...•.•.••.•.••...•...••........... $ 2,439,168,066

Local Funds
. Collection Activi~es:
Cost of sup~n·Fees
Restitution.~FinesJ

~

~

~

~

and ~urt Costs

~$

~5.968.924

$

54~180.418

$

20.151.865

$

104,333.374

$

103,237.385

$

13.733.125

$

30.115.374

$,

5.514.505

:

Subsistence,'Transportation. and other Court-Ordered Payments
.Inmate Banking Activities:
Toml Dep~sits ..........••..

~

~ ~

io •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• ••••••••••••• •• • .-••••••••••••••••••••••

. To~ Disbursements

June 30, 2008 Total Assets
Other Activity: .
Revenue from Canteen Operations
IIunate Telephone C,ommissio~s
.;

,
i.

;.
I.

..

·

:..;
:

:

Florida .Prison Legal Penpectives '
Florida Prisoners' Legal Aid Organization Inc.

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PRISON LEGAL NEWS

SUBMISSION OF MATERIAL TO
FPLP
'
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received. flDllllciaJ COIIS~Ons. and dic
illllbility to proviclc individuallcgnl assistance.
manbcn should not seed copies of legal
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PrIMJtt /4ttl N.tra Is 1148 PFlIIOrdIIIy mpIioc
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PO Box 1069
@MnU to: FPLP. Marion, NC 28752

VOLUME 15 ISSUE 2 MAR/APR 2009

Florida Prison Legal
Perspectives

PO Box 1069
Marion. NC 28752

'.

_ ~~-:;-""-;;''';_r~'=

Zip