.' FLORIDA PRISON LEGAL
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ers ectlves
va

ISSN# 1091-8094

:15 ISSUE

Seeking Judicial Records
by Melvin p=z

T

his article will outline the procedure one must follow
. when requesting judicialrecord;s, dispel many notions
pnsoners have concerning same, 'and point out remedies a
prisoner can pursue .should the' judicial branch fail to
properly process said request.

Overview
Article I, Section 24(a), .of the Florida Constitution
provides that "[e]very person' has the right to inspect or
X)py any public record made or received in connection
with the official business of any public body, officer, or
smployee of the ~... except with respecJ·t 0 records
sxempted pursuant to this section." The judicial branch is
Deluded in the provision's tenns. Jd . '
.
To implement f:hat. provision, the Florida Supreme
:o~ .adopted RUle of Judicial Administration 2.051
:n.mumbered,to Rule 2.420), which is the judici81 branch
xnmterpart to Chapter 119 Fla. Stat.
Contrary to common belief, the Florida Public Records
\ct (h~after "The Act"), does not apply to judicial
-ec:ords. Namely, the Florida Supreme Court has held that
he Act d~es ~ot apply to judiciary and did not apply to
:Ierk of ClI'CUlt court. See: Times Pub. Co. v. Ake, 660
io.2d 255 (FIa. 1995).
'
Besides, because the Act does not apply to judicial
1lCOrds from the clerk of court, the clerk is authorized to

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charge S1.00 per page for non-Certmed copies. See: Fla.
.
Stat. 28.~4(5Xa).,
. A challenge to the validity of the SI per page fee
charge by the clerk was not successful See: wftTv, Inc. v.
Wilken, 675 So.2d 674 (FIa. 4111 DCA 1996).
Rule 2.420(6)(I)(A) defines court records'which·are
the contents of the cOurt file as progress dockets and'other
similar records generated to document activity in .Ii case,
transcripts filed with the clerk, docmnentary exhibits in
~e custody of the clerk, and electronic records,
VIdeotapes, or stenographic tapes of depositions or other
IJ!'Oceedings filed with the clerk, and electronic records,
VIdeo tapes, ,0,1' stenographic tapes of court proceedings.
These documents are $1.00 per page, if they have already
been processed to paper fonn.
.
But all documents requested from the clerk are not
subject to this fee. For example, an applicant for executive
clemency is entitled to free certified copies ofinfonnation,
indictment, judgment, or sentence. See: Fla. Stat 940 04
and Lane v. Gordner, 778 So:2d 1071 (FIa.5111 DCA
2001).
.
Nevertheless, the clerk can "require a prisoner to send
the application for executive' clemency in order to show
that he or she is an applicant
One Florida court has· already ruled that such policy is
reasonable and does not violate the·free of charge clauSo
of the statute. See: WI/Iiams v. Circuit Court, It!' Jur.
Clr., 862 So.2d 887 (FIa. 5~ DCA 2003).
Other records from the judicial branch, which includes
The Florida Bar. the Florida Board ofBar Examiners,

Fonner FDOC Guard Sentenced to Prison
Important Notice-Mail Rules
Post Conviction Comer
,
: ;
Notable .Cases
'Mail-Readers Respond
:Prisoners' § 1983 LawsUits
:

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14
16

~20

27

29

Florida Prison Legal Penpectives
FLORIDA PRISON LEGAL PERSPECTIVES
"
P.O. Box 1069
Marion, North Carolina 28752
Publishing Division of:

,

FLORIDA PRiSONERS'~GAL AID ORGANIZATION, INC. "-

A SO 1 (c) (3) Non·profit Organizalion
~:

fpJp@acLcom

FPLAO DIRECTORS
Teresa Bums-Posey ,
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton, Eliq.'

FPLPSTAFF
Publisher
Editor "

Ten:sa Burns-Posey
. BobPosey

Melvin Perez

Bradford Edwirds
Howard Richmond

the Judicial Qualifications Commission, and all other
entities established by or operating under the authority of
the supreme court or the chief justice. are the same as
section 119.07. Fla. Stat See: Rule 2.420(£)(3).' ,
Ma~g Tbe Reques,

Requests for access'to records shall be in writiDg and
shall be directed to the custodian. The, request shall
provide sufficient specificity -to enable the custodian to
identify the requested records. The teasOn for the request
is not required to,be disclosed. See: 2.420(f)(2).
Further. the Custodian of all administrative records of
any court is the chiefjustice or chiefjudge of tbit court,
except that each judge is the custodian of all records that
are solely within the possession and control of that judge.
See: Rule 2.420(b)(3).
,'.
'
As to all other records, the. custodian is the official
charged with the responsibilitY of maintaining the office
having the care. keeping, and supervisiQn of such records. '
All references to "custodian" mean the custodian or the
custodian's designee. ld.,
Moreover. the custodian shall be ,solely responsible for
providing access to records Q( the custodian's entity. The
custodian .shall also detennine whether the requested
record is subject to this rule and, ifso. whether the records
or portions ofthe record are exempt from disclosure.
The custodian shall also determine the form in wDich
the 'record is provided. If the request is denied. the
custodian shall state iD writing. the basis for the denial.
See: Rule 2.420(f)(2). For a complete list of exemptions
see Rule 2.420(c).
Seeking Review From Request Denial

Florida Prisoners' Legal Aid Organization, Inc., P.O. Box 1069,
Marion, NC 28152,1!u1l1ishes, FLORIDA PRISON LEGAL
'PERSPECTIVES (FPLP) up to six times a year. FPLP is a non-profit
publication focusing on the Florida prison and criminal justice
systems. FPLP provides a vehicle ,for news. information, and
resources affecting prisoners. their famili~ fiiends, loved ones, and
, the general public of Florida. Reductil:lD of aime and recidivism,
rnnintCJUl!lCC! of family ties, civil rights, improving conditioiIs of
confinement, promoting skilled court, access for prisoners, and
promo1ing accountabiliiy of prison official$ are all issues FPLP is
deaigned to address. FPLP's non-attonley volunteer staff ClIIIJlOt
respond to requests' Cor 1e8al advice. Duo to the volume of mail that is
received and volunteer staff limitations, all correspondence that is
received cannot be responded to,ltut all mail will receive iiulividual
lIlteIltion. Permission is grunted (0 reprint maierial appeariDg in FPLP
that does not ~ it is.copyrighted ptOVided that PPLP and lUI)'
indica1ed author are idcatificd in the reprint and a copy of the
publicolion in which theirmatcrial is published is PJOVided to the
FPLP publisher. This pultlication is not meant to be"a substitute, Cor
legal or other professional advice. The material in FPLP should not
be tdied upon lIS authoritative and may Not containsuf1lciens
information to deal with a legal proIllem. FPLP is lIUlbJDatically sent
to .iIll members of FPLAO, Inc. as' a membership \)alcfit.
Membmhip dues for FPLAO, Inc., operate yearly and are $10 for
prisoJlcrs, $15 for family members and other private individuals, $30
for attameys. and S60 for agencies, Utmuies, and institutions.

Expedited review ofdenials of access to records ofthe
judicial branch shall be provided through an action fot
mandamus, or 9ther appropriate appellate· remedy, in the
following manner:
I) ~ere a judge who has denied a:request for access to
records is the C11StQ4iaD. the action shall be filed in the
. court having appellate jurisdiction to'review the ~ons
ofthe judge denying access. Further. upon order ,issued by
the appellate court, the judge denying access to records
shall -file a sealed ,copy of the requ~ records with the
'
appellate court..
2) All other actions under this rule shall be filed in the
. circuit court of the Circuit in which such denial of acc:ess
occurs. See: Rule 2.420(e).
Duty to Provide Records
In this section we will eXplore Some of the officialS

who have a duty to provide records requested for_
mandamus purposes and the law goveming such area.
~tial1y. it is well settled that an official coUrt reporter
has a duty to transCribe court proceedings upon a request

FloriC;la Prison· Legal Perspectives
Rule 9.100(g) states that the C!lPtion of the petition
and an' offer of payment. See: Turner v. State. 100 Fla..,
shall contain the name of the' court anC;l die name and ,
1061078.130 So. 617. 618 (1930).
designatioQ of all parties on each side. For more
Like wise, a person has a right to purchase transcripts
information, on caPtion and parties see Rule 9.1 OO(eX1)of his court .proceedings. See: T. T. v. State, 689 So.2d
(2).
1209 (FIa. 3rd DCA 1997).
Also. the petition shall not exceed SO pages in length
Furthermore, Florida courts have found a mandamus
and shall contain:
petition sufficient when the petitioner alleged that he
requested the court reporter to notifY him of the cost for
I) the basis for invoking the jU(isdiction ofthe court;
transcribing his sentencing hearing and the reporter never
responded. See: Perez v. State. 980 So.2d 1205 (FIa. 3rd . 2) the facts dn which the petitioner relies;
3) the nature ofthe relief sought; and
DCA 2008).
4) argument in support of the petition and appropriate
Analogously. the clerk of the circuit court has a legal
Citations of authority.
.
duty to maintain and to provide access to the records
contained in its files. unless the records are legally exempt
If the petition seeks an order directed' to ,a lower
fromdisclosure. See: Fla. Stat. §28.13.·
'
tribimal. th~ petition shall be ~ccompanied by an aPpendix
The importance of .the official's duty is vital to obtain
ali prescribed by rule 9.220.. IQld the petition shall alsO
mandamus relief since the petitioller must establish a clear
contain references to the appropriate pages of the . .
legal right to the performance of a ministerial duty. See:
"
'
supporting appendix.
Orchid Island Props., Inc., v. JJ'.G.Mills. ,Inc. of
The pwpose of an appendix is to permit the parties to
Bradenton, 889 So.2d 142. '143 ,(Fla. 4th DCA'2004).
prepare and transmit copies of those portions of the record
In other words. the official duty in question must be
deemed necesS8IY to an' understanding of the' issues '
ministeriai and no~ discretionmy. See: Allston v. State,
presented. See: Rule 9.220(a). For more information ofthe
685 So.2d 1312 (FIa. 2nd DCA 1996). '
contents of the app~dix see 9,220(b)..
To illustrate, mandamus will lie only. when, the
petitioner is enforcing a clear legal right and when the
If the appendix is not suffici~t the court can deny th~.
petition. See: King v. .Byrd, 590 So.2d 2 (FIa. 1st DCA
. respondent has failed to perform a clear legal duty; it
1991) and Keene v. Nudera. 661 So.2d 40 (FIa. 2114 DCA
cannot be used to compel performance of a discretionaIy
1995). '
.
act. See: Adams v. .State, 560 So.2d 321 (FIa. 111 DCA
Thereafter, if the petition demonstrates l! preliminmy
1990).
basis for reliet: a departure from the essential
Specifically. a duty or act is defined as ministerial
when there is no room for: the exercise of discretion, and . requirements of law that will cause materjal injuIy for
the performance being requested is directed by law. See:
which there is no adequate remedy by appeal, or that
Town ofManalapan v. Rechler, 674 So.2d 789 (FIa. 4th
review of final administrative acti~n would not provide an
adequate remedy. the court may issue an order directing
DCA 1996).
the respondent to show cause, within the time set by the
court, ,why relief, should not. be granted. See: Rule
Filing The Petition in The DCA
.
,
As previously stated, where a judge who has denied a , 9.100(h).
Within 20 days thereafter or such other time set by the
'request to records is the custodian, the action shall be ~ed
in the DCA having appellate jurisdiction to review ~e
court, the petitioner ,may serve a reply. which shall not
decisions of the judge denying acc~s. See: Rule , exceed 15 pages in le,ngth, 'and supplemental appendix.
2.420(e)(I).
"
'"
'
'See: Rule 9.100(k). However. the reply is qptiorial.
The petition for writ ofmandamus in the DCA shall be '
Other general requireme.nts such as fonts. ~
filed under Florida Rules of Appellate Procedure 9.100(a).
foomotes. quotations and certificate of compliance are
DCAs have vested authority under Article V. Section
found in Rule 9.100(1).
•
,
4(b)(3) to issue writ ofmandamus. ~
There is not time limit to file this petition. But an
.The original jurisdiction of ~e court sh811 be invoked
unreasonable delay in seeking an extraordiJiary remedy
by filing a petition, accompanied by a filing fee if
may result in a denial of rellef on equitable grounds. See:
prescribed by law, with the clerk of the court deemed to
Brown, v. State. $8S So.2d 391 (FIa. Sib DCA 2004). See
have jurisdic.tion. See: Rule 9.100(b).
, also, Alma's Italian & Seafood Restaurant v. Jones, 627
If th~ prisoner is proceeding insolvent. he or she must " So.2d 605 (FIa. 1Bl DCA 1993)(denying mandamus relief '
because of unreasonable delay).
'
file a motion for in.4IOlvency and attach It six-month bank
statement. To request this printout. the prisoner must 1ill
out an 8mdavit of insolvency, attach it to an Inmate
CircuitCourt Petition
·RequeJt form. and address it to the Inmate TrUst Fund;
A.request denyingjudicial records that r8ns Under Rule
The DCA will also provide you' with an affidavit of
2.4Z0(e)(2) musttbe filed in the circuit court ofthe circuit
insolven'cy, if so requested.
in which such denial ofaccess occurs. Id

, Florida Prison Legal Perspectives
Circuit courts have the power to issue writs of.
mandamus ,pursuant to Article V. Section 5(b) of the
Florida Constitutioa
'
Under these circumstances, the petition for writ of
mandamus must be' tiled under Florida Rules of Civil
Procedure 1.630(b).
Additionally, this rule provides that the initial pleading
shall be a complaint and shall contain the following in
order to be facially sufficient:
'

parties. See: State ex rei. Johnson v. Roberts, 134F1a. 326,
18480. 14 (1938).
'
For instance, if undisputed affidavits are submitted to
the trial court, the co~ may be able to resolve the issues
pased on those affidavits.-See: Mendykv. State, 707 So.2d
.
320,322 (Fla. 19970.
'. On the other hand, if no show cause order is issued or .
the respondent tiles an unsworn' response, the DC-\,\ will
likely reverse the trial court's denial of the petitioa A
good illustration oftbis issue offound in Radford, supra.
, In Rod/ord, the prisoner petitioned for a writ, of
• The ~ on which the plaintiffrelies for relief;
mandamus pertaining to his records requests directed to
• a request for the reliefsought; and,
the circuit court clerk and the court reporter. Id at'1067.
• if desired, argument in support of the petition with
citations ofauthority.
68. The clerk had filed an unswom answer to the
prisoner's petition for mandamus, uidicating ~ the clerk
The caption ~ show th~ action file(l'in the name of
did not have posSession of any of the records requested.
the plaintiffin all cases and not on the relation ofthe state.
Id. at 1068. Additionally., the court reporter did \lot
respond to the prisoner's ,petition and she' was -never
Id.
In the saine vein; the petition should include"as eXhibits
directed to do so by the trial court. ld The second district
aU the requests for judicial records that are at issue and . noted that while the prisoner may have been mistaken in
any responses thereto..'
,
his beliefthat the requested records were in th~ possession
Rule 1.630(c) states that a complaint shall be tiled
of the clerk of the cOurt reporter. his petition stated 8
within the time provided by law. except that a complaint
facially sufficient claim.ld. at 1068-69. According1y, the
for common taw certiorari shall be tiled within 30 days of
court held that because the trial CQlJrt did not issue an
rendition ofthe matter sought to be reviewed.
alternative writ requiJ::ing the clerk and the court reporter
Under ell. 9S.11(S){f), Florida Statutes, there is a o~e­
to show cause why the writ should not be issued" and
year statute ofljmitations to tile such action,
because there was no sworn evidence refbtiDg the
prisoner's allegations, the trial court erred in dismissing
The writ shall be served in the manner p~cribed by
,
law,except the summons in certiorari shall be served as . his petition. Id. at 1069.
provided in Rule 1.080(b). See: Rule 1.630(d).
After the resPonse and reply are filed or the time for
The original complaint is filed with the' court either
filing expires, the court will isSue a ruling. If the court
denies the petition there are several options the prisoner
before service 'on" oppoSiJig counselor immediately
can pursue.
theTe!lfter. See: Rule 1.080(d).

Court's Review
When the trial court receives a petition for writ of
mandamus, its initial' task is assessing the petitiOt;l to
detenniDe whether it is facially sufficient See: Holcomb v.
FDOC. 609So.2d 751 (Fla. ldDCA 1992).
If a mandamus'petition is facially sufficient, the court.
,must issue an alternative writ of mandamus requiring the
respondent to show cause why the writ should not be
issued. See: RadfOrdv. Brock, 914 So.id 1066, 1068 (FIa.
iad DCA 200S). If it is not facially sufficient, the court
may dismiSs the petitioa See: Holcomb. supra.
If the show Cause order is issued it will set forth a date
for respOndent to ,~e a, response. This reSponse -must
comply with Rule 1.140. The show cause order should
also give the petitioner a set amount of'days to reply.
However, if no time is set by the court for a reply. the
petitioner should tile a reply within 20 calendar days from
the service ofthe response. See: Rule 1.140. Once again, a
,
reply is optional.
Notably. if the petition and answer to the alternative
writ raise disputed factual issues, the trial COllrt must .
resolve these issues upon evidence sub\nitted. by the
,

Motion For Rehearing ,

One option.available is to file a motion for rehearing.
Such remedy is sought via Rule 1.530(b) and must be
served within 10 days after the filing of the denial The
service of this motion will stay execution on the jUdgment
under Rule 1.550(a).
A motio~ for rehearing is often used to point out a,
material mistake in fact or law upon which the denial
reli~.
'
'
Besides, a motion for rehearing may be neCessary to
get any objectimis ~to the record when the court
dismisses the case. For instance, if the court ,dismissed
your case before you had the opportunity to be heard in
opposition to a motion to dismiss.
AppealiDg The Denial
Another option is to appeal the denial. An appeal in
this type ofcase is governed by Florida Rules of Appellate

Procedure 9.110. Jurisdiction of the court under this rule
shall be invoked by tiling two copies of a notice,
accomp~ed by filing fees, prescribed by law, with the

Florida Prison LegalPenpeetives
clerk of the lower tribunal within 30 days of rendition'of
Similarly, the initial brief shall not exceed 50 pages in
the order to be reviewed. See: Rule 9.11O(b).
length. The table of contents, citations of authoritieS,
As stated earlier, if the prisoner is proceeding
certificateS of service and compliance, shall be excluded
insolvent, her or she must file a motion for insolvency and
from the computations. Longer briefs may be permitted by
attach a six-month bank statement Yet, all courts may not
the court. See: Rule 9.210(8)(5).
require the six-month bank printout even though the
The prisoner shall file. the original m:td three copies
with.the DCA and 8 copy to the opposing party.
statute provides for one. See: Fla Stat. 57.085.
.
The notice of appeal shall be ,substantiallY in the furm
Rule 9.210(f) requires the ap..,elleelrespondent to serve
prescribed by RUle 9.900(8). The caption shall contain the
an answer brief within 20 days after service of the ~tiaJ
name of the lower tribunal. the name and designation of at . brief; the reply brief: ifany, shall be served within 20 days
least one party on each side. and the case number in the
after service of the answer brief. Once again. the reply
.
lower tribunal. "
brief is optional. But if a reply is filed it shall not exceed
Furthet. the notice shall contain the name of the ,court
IS pages in length; provided that if 8 cross-appeal has
to which the. appeal is taken. the date of rendition, and the
been filed,' the reply brief "shall not exceed SO pages, no
nature ofthe order to be reviewed. See: Rule 9. 110(d).
more than 15 of which, shall lie devoted. to argument
Moreover. this rule provides that a conformed copY of
replying to the answer portion of the appellee/crossthe order or orders designated in the notiCe of appeal shall
appellant's brief. Cross-reply briefshall not exceed IS
be attached to the notice together with any order entered , pages. See: Rule 9.210(2)(5). ThCfCilfter, the DCA will
on a timely motion' postponing rendition of the order. or
issue a ruling.
,
For other brief requirements sUch as type,. margins.
"orders appeaIed.ld .
Within SO days of filing the notice; the clerk shall , paper, footnotes, quotations and all others see generally
prepare the record prescribed by Rule 9.200 and serve'
Ruie9.210.
copies of the index on all parties. Within 110 days of
,EndNote
filing the notice. the clerk shall transmit the record to the
court. See: Rule 9.IIO(e).
Hopefully, the infQrmation provided in this article. has
The initial brief shall be served within 70 days of filing • cleared many misconceptions prisoners have concerning
the notice. This brief is filed pursuant to Rule 9.210 and
judicial records, and will be very useful to laW. clerks
must contain:
. providing assistance to 8 prisoner with this type of issue.•
A) A table of contents listing the issues p~ted for
review. with references to pages. '
B) A table' of citations with cases listed alphabetically.
statutes and other authorities. and the pages ofthe briefon
which each citation appears. See Rule 9.800 for a uniform "
citation system.
C) A statement of the case and of the facts. which shall
include the nature of the case, the course of the
proceedings, and the disposition in the lower tri~unal. .
References to the appropriate volume and· pages of the
record or transcript shall be made.
0) A summary of argument, suitably paragraphed,
condensing succinctly, accurately, and clearly the
argument actually made in the "body of the brief. It should
not be a mere repetition of the headings under which the
argument is arranged. It should seldom exceed two and
never·five pages.
' .
E) Argument with regard to each issue including the
app\iamle appellate standard ofreview.
.
F) A conclusion, of not more than one page. setting forth
the precise relief sought.
Generally, an abuse of discretion standard is applied to
review a cOutts denial of 8 public records request. See:
Overton v. State, 976 So.2d 536 (Fta 2007) and Hill v.
Siale, 921 So.2d 579 (FIa. 2006).

Florida Prison Legal PerSpectives .
Sue
Ip the petitions, Deen claimed that the orders denying

Prison Nurses
.
....
Florida Department of Corrections
~.

his motions to withdraw constituted a departure from the

essential requirements oflaw..
.'
In support ofbis claim, Deen asserted that the statutory
duties 'of his office did not encompass post-conviction
proceedings.
ore than 100 women are part of a lawsuit filed
Besides, that one of the orders denying withdrawal
against the Florida Department of Corrections
stated that while the enabling statute did not specifically
during the. third week of March 2009. The group of 111
authotize .RC tQ ,.epreseiJ.t indigent defendants in postwomen is mostly made up o'fnurses who work at different
conviction proceedings, it did not specifically bar RC
prisons throughout the state. They allege that they have
.from representing indigent defendants in post-conviction
been sexually harassed by male prison~rs while at· work
proceedings either.
and that the FDOC has done little or nothing to stop such
Based on these arguments, the DCA .applied the
harassment.
doctrine of in pari material (a prlD.ciple of ~tutory
. The caSe is being represented by Wes Pittman, a
construCtion that requires statutes. relating to the same
Panama City attorney. . oa
subjectto be construed· together to hannonize the statutes
Pi~ said he is urging thegovCrnor to put a stop to . and to give effect to the Legislature's intent) and the
such harassment in the pnsons. "We're asking the
doctrine of. expressio unius est exclusion . alterius (a
governor to clean house over there (FDOC)," said'
principle of statutory construction that means expression
Pittman. "Get rid of the good old boys network that has
of one thing implies the exclusion of another), thus
allowed the sexuaI. harassment Qf women to continue and
concluding that the RC was correct that the authority to
continue."
represent criminal defendants in post-conviction
Pittman's motivations may be a little less altruistic. He
proceedings was not set forth as an assigned duty in
has br.ought three other similar cases in the past six years,
section 27.511 (5), Fla. Stat. (2008).
involving 28 women· total, and won all three in court,
Analogously, the court noted that section 27.511 (5);
garnering l~g~ attorney fees. This .will be his most
Fla. Stat., specifies the types of cases where RC may be
ambitious case yet. '.
appointed when there is a Conflict.
.
No trial date has been set for this latest case as it's still
This ruling is a great victory for many defense lawyers
in prelintina:tY stages. who represent indigent defendants pro. bono since a
previous challenge to this law failed (See: FPLP, Vol. 13,
Iss. 5/6).
Public defenders have also challenged their
in post-convictionproceedings but have not·
appointment
Criminal Conffict ·And Clvil Regional
been successful. See: .Russo v. Akers, 724 So.2d 1151 (Fla.
Counsel Not Subject to Appofutment
1998). .
.

M

0

o

in Post-Conviction,'Proceedings
. by'Melvin Perez- .

CreatioD of Regional Counsel

Chapter 2007-62, Laws of Florida (hereinafter !'The
Act") created five offices of CCCRC to handle
n a case of first impression the Fifth District Court of . representation in criminal cases where the public defender
Appeal (hereimifter!'DCA") on January 30, 2009, ruled . has a conflict. The Act was later codified as Fla. Stat.
27.511.
that the Fifth District's Office of Criminal Conflict and
The Florida Legislature passed ~e Actin an effort to
Civil RegioniJI CQunsel (hereinafter "0CCCRC") is not
subject to appointment for indigent defendants in post . cUt spending due to a' 2007 revenue short fall of $1.1
billion.
conviction proceedings. ..
.
In the .aforementioned 'statute, . the Legislature
While the other DCA's have not addressed this issue,
its intent to provide adequate representation. to
expressed
regional counsels (hereinafter "RC") .from 'other districts
persons
entitled
to court-appointed counsel, and to provide
. , are likely to .rely on this ruling to avoid representing
adequate
representation
in a fiscally sound IIl8Jlnti' while
indigent defendantS in po.st-conyiction proceedirigs. .
safeguarding
constitutional
principles.
The issue eante m,forethe DCA after the. Brevard
An
OCceRC
was
created
within the geographic
Circuit CoiutaPpoiJited RC Jeffrey been ("Deen") to
boundaries
of
each
of
the
five
district
courts of appeal.
represe.nt foui. defendants in 3.850,ploceedU1gs and' the
See: Section 27.511 (1), Fla. Stat. (2008).
RC's motions to Withdlawwere denied
The pwposes of the 2007 enabling statute were:
Deen tiled: four petitions for writ of certiorari, or
alternatively, a writ of prohibition w'hich the DCA
consolidate<!.

I

Florida Prison L~al Penpeetives
I) To help effectuate Revision 7 to Article. V of -the
Florida Constitution, which shifted the majority of the
burden of funding the state court system from the counties
to the state; and.
.
2) To respond to the problem of conflict representation in
indigent defense cases.
.

represent a client due to the compensation cap as some
Cases would require much more money than what the state

can compensate an attorney working on a case (previously

reported in,FPLP, Vol. l3,1ss. 5/6).
.
. In Crist, supra,' the AsSociation of Criminal Defense
Lawyers filed a petition of quo wa"anto (an extraordinaly
remedy and proceeding by information· to prevent one
Moreover, the statute. provides that, when the office of . from'usurping an office or'using a franchise or privilege
the Public Defender, at any time during the representation. that is not rightfuUy his), contending that the Governor
exceeded his constitutional authority by appomting RC·
of two or more defendants, determines that the interest of
those accused are so adverse or hostile that they cannot all. pursuant to the Act.
be counseled by the. public defender or 'his or her staff
The circuit court for Leon. County granted the writ and
without a conflict of interest, or that none can be
the Governor appealed. Afterwards, the First DCA
counseled by the public defender because of a conflict of
certi~ed the fonowing question of' great public importance
interest, the OCCCRC shall be appointed' and shall
to the Florida Supreme Court:
provide legal services to indigents in an'enumerated list of
"Whether the Legislature violated·article V, section 18 of
cases.
These include a person who is under arrest for or
the Florida Constitution by enacting Chapter 2007-62;
Laws of Florida.... It
charged with a felony, under arrest or charged with a
misdemeanor authorized for prosecution by the state
attorney, a -violation of Chapter 316 punishable by
The Florida Supreme .Court in·answering the question
imprisonment, criminal contempt, or a violation of a .: in the negative concluded that the act did not implicate
special law or county or municipal ordinance an ancillary
Article V, section 18, which requires that the public
defender in each circuit be elected. Id at 137.
to a state charge, or if not ancillary to a state charge, only
if the OCCCRC contracted with the county or municipal
Furthermore, the court specifically noted that the
to provide representation. See:Sectio~ 27.511 (5)(a)(b),
Legislature's pnmary intent was to create a backup syStem
Fta Stat. (2008).
to handle those .cases in which a public defender has a
Also, the RC may be appointed based on conflict when
conflict and to do so in· a .fiscally sound manner in
a child is alleged to be delinquent pursuant to a petition . accordance with conStitutional principles of dUe process.
Id at 138..
filed before a circuit court, or when a·person is sought to
be involuntarily placed as a men,mly. ill person,
The Florida Prisoner
involuntarily committed as a sexually violent predator, or
involuntarily admitted to residential services as a person
For Florida prisoners in need for assistance in postwith developmental disabilities. See: Section 27.511
conviction proceedings the Fifth DCA's ruling does not.
help them. But this ruling is consistent with U.S. Supreme
(5)(c)(d).
In a similar manner, RC may be appointed to represent
Court decisional l~w. See: Pennsylvania v. Finley, 481
U.S. 551, 107 S.Ct 1990,95 L.Ed.2d 539 (1987). Here is··
persons convicted and sentenced to death for purposes of
what the' high court said, concerning the right to posthandling an appeal to the Supreme Court or for appeals in
the cases noted above. S~: 27.511 (5)(e)(f).
conviction collOsel:
Previous CbaUenge
As discussed earlier, since the Act was. enacted it

.survived a previous challenge to its constitutional muster.
See: Crist v. Florida Association of Criminal Defense
Lawyers, Inc., 978 So.2d 134 (Fta 2008).
This challenge came after attorneys argued that the Act
denied the constitutional rights defendants have under the
Sixth and Fourteenth. -Amendments of the U.S.
Constitution to effective assistanCe ofcounsel. .
The Act caused so much debate lea~g private
attorneys to withdraw their names from pro bono ·list
because the Act placed a cap on the cQmpensation
attorneys would receive.'
.These attorneys complained that such caps placed
attorneys in a' position of not wanting to represent such
defendants because they would not be able to e~vely

"We have never held that prisoners have a constitutional
right to counsel when mounting collateral attacks upon
their co~viction... and we decline to so hold today. om,
cases establish that the ri8b:t to appointed counsel extends
to the first appeal of right, and no further. It • (citations
omitted).
Finley, however, deals with the right to counsel
imposed upon the Slates by the Sixth Amendment On the
other hand. the Florida cases discussed hereunder are the
progeny of State v. Weeks, 166 So.2d 892, (Fla. 1964),
which. is predicated upon a provisional right to· pounsel
generated by the Fifth Amendment' and by the' Florida
Constitution.
In Weeks, the Florida Supreme Court ws concerned
with an indigent prisoner's entidement to the assistance of
:

. '

F1c:»rida Prison Legal Penpectives
counsel as'a matter of right upon an appeal from an
adverse ruling in a collateral assault on his conviction and
sentence. The court recognized there was.. no organic
entitlement Under the Sixth amendment to have the
assistance of· counsel as a matter of right in a postconviction collateral pro~g.
Yet, it also held that "sUch remedies are subject to the
more flexible standards 'of due process announced in the
fifth amendment, Constitution of the United States" where
the post.:conviction motion presents an apparently
meritorious claim for relief and is potentially so complex
as to suggest the need for counsel. Id at 896.
It is important to note that in Weds. the due process
requirements were considered pursuant not only to the
fifth amendment ofthe United States Constitution. but on
the basis of Section 12. Declai'ation of~ts. Florida
Constitution (1885). This due process provision has been
.retained in Article· I, Section 9, of the current Florida
Constitution as revised in 1968:
Subsequently, the Florida Supreme Court held that
when the application on its face reflects a colorable or
justifiable issue or a meritorious grievance, the court has
the authority to appoint counsel.. See: Graham v. State,
372 So.2d 1363, 1366 (1979). ..
.
.
• The adversary nature ofthe proceeding;
• Its complexity;
.
• The need for an evidentiary hearing; or
• The need for sub~tiallegal.research. Id at 1366.

I

Indeed, the question in each proceeding of this nature
should be whether. under the circumstances, the assistance
of counsel is essential to accomplish a fair and thorough
presentation of the defendant's claims. See: Mann v. State,
937 So.2d 722 (FIa 3M DCA 2006).
.
Of course, doubts should be resolved in favor of the
indigent defendant when a question. of the need for
counsel is presented. See: Hooks v. State, 253 So.2d424,
426(F1a 1971).
Prisoners should also note that section 924.051 (a), Fla
Stat. does not prohibit or preclude appointment ofcounsel
for indigent defendants in seeking collateral review. A
statute must be construed so as not to conflict with the
constitution. See: State v. Stalder. 630 So.2d 1072 (Fla

for the hearing. This can either·be done by including such
request ~ the post-conviction pleading itself or by filing a
motion for appointment ofcounsel.
If the trial court denies appointment of counse~ the
trial court's decision is subject to review under the abuse
of discretion standard. However. this issue must be raised
.on appeal along with the denial ofthe pleading itsel£ See:
Dobson v. State. 860 So.2d 1075 (Fla 3M DCA 2003) and
Millis v. State. 864 So.2d 1246. 1-247 (Fla 5111 DCA 2004).
lf the DCA finds that the trial .court abused its
discretion in denying a prisoner's request for appointment
of counse~ the court must reverse and remand for a new
evidentiBIY hearing with appointment of counsel. See:
Bynum v. State. 932 So.2d 361 (F1a. 2= DCA 2006) and
Johnson v. State. 7l~ So.2d 112. 115-16 (F1a III DCA
1998).
.
.
Courts have f01Dld abuse ofdiscretion in not appointing
counsel where prisoners have alleged:·
A) That. the prisoner had limited education and little
Wlderstanding ofthe law or courtroom procedures.
B) That the ,prisoner had received the assistance of a
prison law clerk in preparing the motions.
C) That the· prisoner was not capable of properly·
.
conducting the hearing.
D) That the prisoner was unable to subpoena and question
witnesses. See: Bynum. supra at 363
But these assertions may not warrant the appointment
of counsel in every case,where. similar allegations are
recited Id iJlit see also. Rogers v. State. 702 So.2d 607
608 (Fla 1~ DCA 1997) and Gordon v. State. 529 So.2d
1129. 1130 (Fla Slh DCA 1988). •
.
.
.
In summary, it is too early to predict the impact that the
Fifth DCA's ruling will have on indigent defendants.
However. indigent defendants in need· for counsel in post- .
conviction proceedings should continue to request
appointment ofcounsel when needed
Similarly, researchiilg the' a~orities cited herein
should give the prisoner a solid understanding of the .aw
governing this area
Remember that any doubt for· the need of counsel
should be resolved in favor of the indigent defendant. •

1994).
In a like manner. the determination that an evidentiary

hearing is necessary in itSelf implies that three of the four
Second DCA Judge Retires
factors set out in Graham. supra are involved See:
Amid Investigation
Williams v. State. 472 So.2d 738 (Fla 1985).
.
Thus. evidentiary hearings are adversarial in .nature.
and ·the rules of evidence and procedure are mystifyingly
uring the second week of February 2009. second
complex to all but the most sophisticated non;'lawyers.
DCA Judge Thomas E. Stringer. Sr., retire amid
See: He1U{erson' v. Slale, 919 So.2d "652 (pIa III .DCA
misconduct investigation.
2006).
Stringer's retirement came ~ the Florida Judicial
Therefore. if the prisoner is granted an eVidentiary . Qualifications Commission .("JQC") released their
hearing he or she. shoulp request appointment of counsel
findings ·that probable cause exists for formal proceedings

D

Florida Prison Legal Penpectives
to be instituted against the judge for his involvement with
a stripper.
In March 2008, Christy Yamanaka, an exotic dancer in
Las Vegas, publicly accused Stringer of owing her money..
When the allegations ere investigated the· JQC found that
the judge developed a personal and financial relationship
with Ms. Yamanaka and that he knew she had filed
bankmptcy in Las Vegas NeVada; however, the petition
was rejected.
Moreover, the JQC found that while Stringer knew Uris
: information, he entered into a series. of financial
transaction with Ms. Yamanaka, which included op~g
bank accounts in his name and the name of a mend that
the stripper had access to.
.Furthermore, Stritiger used his accounts to help the
stripPer hide her assets and· income from her creditors,
allowed her to make large deposits in his 8ccounts and
obtain loans in his name for her benefit, said· the JQC
findings.
Similarly, Stringer is 89CUsed of not reporting two'
Rolex watches, a customized 200 I Mercedes and of
falsely claiming the transfer of the vehicle was zero to
avoid paying.F.lorida sales taxes.
David Bogenschutz, who is representing Stringer in the
state investigation said that, "his stepping down is more of
a retirement thail a resignation."
When Bogenschutz was asked about the. allegations
against Stringer he stated that he, ~wants to maintain·his
privacy" and did not comment further about the matter.
However: Stringer' did acknowledge that. the two
entered into a business partnership to purchase a home in
Hawaii in 2004 and sold it in 2007 dividing the profits.
Also that he knew Ms. Yamanaka for more than IS years
.
but was unaware that she worked as a stripper. . .
While Stringer retired after the JQC made their
probable cause findings, he could still face consequences
iffound guilty ofthe ch~ges. _.
.

FLORQ)A CLEMENCY SPECIALIST
Far fDlb. 011 Sca=a BOIfadlaa 1!IrGuab I!laacIlIIiw a.-,
NATIONALCLE~CYPROJECT

8624 CAMP COLUMBUS ROAD
HIXSON, TENNESSEE.31343

(423)80-2235
(UoYEARS OP CLBMBNCV. PAROLE ASSISI'MiCB)

,

Florida Prison Legal Perspectives

Former FDOC Guard
Sentenced to Prison " .
JACKSONVILLE-FollowiDg.a week.long trial, a
federal jury in' Jacksonville conVicted PalJl Tillis, a fonner
Florida Dep8ftD1ent of Corrections prison guard, of
violating the federal civil rights of ~ prisoner at the Florida
State Prison while Tillis was' on d~as a supervisory
corrections' officer. That verdict' was handed down
January 16, 2009.
.'
On July 6, 2009, Tillis was sentenced in that same
federal court to three years in feder81 prison to be followed
by two years ofpost release supervision.
The evidence at trial was damning against Tillis. It
showed that be assaulted the priSOJler victim, by pouring a
bottle of scalding hot water onto the prisoner's chest while
~e prisoner was lying on the floor ofbis cell in restraints.
The evidence also showed that TilJjs did nothing. to
arrange for medical care for the victim who suffered
second-de~e bums on his chest from the assault.
This case was investigated by agents from the
Jacksonville FBI Division and the Florida Office of the
Inspector General. The case was prosecuted by Asst~· US
Attorney Mac·Heavener of the US Attorney's Office for
the Middle District. of Florida and Departinerit of Justice
Civil Rights Division Trial Attorney Douglas Kern.
More info about the Civil Rights Division of the US
J~ce Department, and the laws it enfo~ is available
on the Internet at usdoj.gov.crt •

Some children, were shocked as individuals while
others were part of a circle where children and prison
guards held hands so that the shock of the stun gun would
.
pass around the circle.
FDOC officials learned about one demonstration from
a parent, and then held a conference call ,to find out if
there had been others. ,
Officials also said that children may have been Zapped
during such demonstrations at Florida prisons in. past
years, but that the FDOC is taking steps to make sure that
it does not happen again.
[Source: Associated Press, 7/09] •

FDOC Guts Privat.e
Prisons' Education,
Drug Treatment Programs
by Mark SteveJ,1S .

ecently the, F1ori~ Department of Corrections,
through the Department of Management Services,
gutted any semblance, of rChabilitation in the state's
privately-operated prisons by slashing educational and
drug treatment progr8ms in the face of sbiinking budgets.
In April, Bay Correctional Facility, located in the
~lorida Panhandle area near Panama City, had its contract
with the DMS ~. The revision reduced the private
prison's education staff from, 24 employees to. eight,
according
to the contract.- The. revision, apparently enacted .
More Chilliren Were
to 'save ~oney, also cut all five of the facility's drug
Zapped by Stun Devices
treatment positions.
Officials at Bay Correetionalsaid, the cuts were
unfortunate
but out oftheir h8nds.
ore than 40, children shocked with stun guns while
BCF
Warden
Bill Spivey said that he was informed
touring Florida prisons in April were not the first
that
economic
factors
forced the state to make cuts, and it
ones to be zapped, according to an FDOC investigation
was
detennined
that
programs least affecting security
report released in early July. (See also, FPLP, Volume IS;
would
be
cut.
Spivey
also said that he hopes once the I
Issue 2.)
.
•
•
•
•
'
.
econoDUc
SltuabOQ
unproves
that the programs will be
One prison guard told investigators thatsbe observed a
reinstated.
"But,
that
Will
be
a
st8te
decision, II he said. .
similar demonstration at. a state prison abOut five years
Bay
Coirectio~
is
only
one
of
six privately-operated
ago. ,
in
Florida.
All
six
experienced
similar cuts in their
.prisons
The report included· buncheds of pages' of documents
education
and
drug
treatment
progtams.
'
gathered after the FDQC leam~ that children ages 5 to 17
prisons'also
saw
decreases
in funding in
State-operated
had been subjected to shocks of 50,000 volts at three
treatment
FDOC
spokeswoman
Gretl
education
and.drug
Flqrida prisons on April 23,. "Take our. Daughters and
Plessinger
said
cUtS
~.
educatiOn
programs
totaled
$3.4
employees
Sons to Work Day." As, a result, three
million
and'drugtreatment
cuts
amounted
to
$6.2
million.
were fired and two resigned. More than a dozen were
~ crucial cuts came as' FDOC data indicates that
'.
disciplined by other 8dministrative means.
None of the children, the daughters and sons.ofFDOC . th~. is a virtual epideDJic in iIii~ and drug
dependeney;in the state,prison population.
employees, were seriously injuied., At one prison to get
Of the 41,054 prisoners admitted to Florida prisons in
the children to participate they were told they could be
the
2007..2008 fiscal year, 4S.4' percent did not test above
first to get hot dogs and hamburgers for lunch, according
.the
"functionally literate" level, according to the FDOC's
to the report.

M

moc

,

R

.

~
I

,
Florida Prison Legal Penpectives
latest annual report. That report als6f01D1d that 64,367 of
the almost 100,000 prisoners (at that' time) in state prisons
as "needing substance abuse treabnent." However,' less
than 1o percent of those identified as needing treabnent
actually received any during 2007-2008 fiscal year.
Yet, statistics also show' that education and
rehabilitation programs are at least moderately successful
when they exist in the prisons.
. Approximately ~3,OOO prisoners reported participated
in education courses of some kind iJJ 2007-2008 FY.Of
those, 1,733 earned GEDs and 2,037. earned vocational
degrees, according to the FDOC's annual rep~rt.
Prisoners who receive drug counseling have lower
recidivism rates (incarceration of any kind within three
years of previous incarceration). according to statistics
ftom the most recent years available. For instance, those
participatiIig in out-prison treatment programs have a 2.5
percent lower recidivism rate than the general population.
,while prisoners participating in in-prison' treatment'
programs have a rate 5 percent lower.
[Sources: News Herald, 7/12/09; moc 2007-2008 Fiscal
.
Year Annual Report].

At ~e jail, the deputy gave her a breath test which
resulted in 0.110 and 0.105 readings. In Florida, a person
is presumed to be drunk with a 0.80 or above reading.
At that point deputies say Hawkins spit a large wad of
tobacco ftom her mouth "as if to say 'look what you
missed.' I believe Hawkins knew that by hiding the snuff
ftom me the test results were: invalidated," the 'deputy
wrote.
A secobd breath test was administered and both results '
were still over the legal limit •
'

PRISONER BEATINGS
UPDATE
In the last issue of FPU', VolUme 15. Issue 2. the
lead article concerned, part, several prison 8WU'ds who
worked at Florida State Prison and Umon Correctional
Institution being either fired or suspended under
investigation for allegedly beating prisOners 'at those
facilities. At the time that article· was written it was
reported that four unidentified UCI guards
'under
investigation for beating a prison~ at that priSon.
Subsequently, in ~ '09, the four guards were 811'ested
by law enforcement officers in Union, Bradford or Clay
C01D1ties after turning themselves in. According to police
reports. UCI guards Daniel Ledwith, 38,. of Raiford.
Durrell Obrian, 25, of Lake Butler, and Marcel Lizotte,
36; of Gainesville were each charged with one count of
.battely on a prisoner with great bodily harm. The fourth
guard. C1aytQn Lee. 22, of Jacksonville was charged,
with aggravated battery and battery on a prisoner with
great bodily harm. All four guards had bond set at the
ridiculously low 8QlO1D1t ofS2.S00.

u.

were

FJ)OC Colonel Charged
WithDUI
bstructing the police. Tl)'ing to cOver up a, crime.
O
Drunk and reckless driving. Do these sound like
things a high ranking prison official should be doing?
On July 7, '09, a Lee County SJterift's Office atrest
report cluq'ged that· a Glades Correctional Institution
prison officer, who was attempting to get her partially
submerged car out of a ditch. in South Fort Myers, was
anested and charged with drunken driving. ,
Lisa Mae Hawkins, 48, of Belle Glade, posted a total of
51,750 bond on charges of driving while under the
influence of alcohol or drugs/first offense and DUI
resulting in property damage before being released on
baiJ.
The arrest 'report noted that when deputies went to the
area where Hawkin's car was found b~ down into a
ravine into a drainage canal she ws trying. to driVe the car
out of about two feet ofwater.
One deputy stated that he noticed that Hawkins had a
bulge of some type in her mouth, but when asked about it
she told the deputy nothing was in her mouth.
When informed that a DUl investigation was being
conducted, Hawkins said she was a colonel with the
Florida Department ofCorrections.
Hawkins subSequently failed the field sobriety tests and,
was arrested.

THE DALEY LAW OFFICE, P.A.
Post Conviction

Parole

Appeals
Biennial
Extraordinary Writs
CredJt
State & Federal Habeas' Revocation
Score Sheet Issues
'. Clemency
Dedicated to Aggressive Criminal Defense
901 North Gad.den Street Tallahauee, ..... 31303
(8S0) 224-5813
www.daleylaw..mee.com

Florida Prison Legal Penpec:tives

ACLU Report
he American Civil Liberties Union ofFlorida released .
a report on March II, 2009, concerning ex~felons
voting rights.
The 'ACLU report states that many of the state's 67
election supervisors' don't· know the law and give wrong'
infonnation to those who call their offices.
Further, that there is an erroneous impression that most
convicted felons can automatically regain their voting
rights, the report said. "
,
Muslima Lewis, director of the ACLU of Florida
Voting Rights Project Bod author of the report, said that
the system .created is too' bureaucratic, too costly to
administer, and too confusing.
This is in part because the law also requires that all
court restitution costs must be paid first.
Gov. Charlie Crist said that more could be done to help
felons regain th~ir rights, but supported the policies he put
in place back 'ip April 2007 after convincing the state
clemency board to allow most felons to qualifY for the
restoration of their rights, except people convicted of
murder and sex offenders.
"We're on the right path, and I think we've done more
in the past two years to restore the rights of former felons
than we've done in the rest of the hiStory of Florida,"
added the Governor.•

T

Former ~herirrs Deputy
Granted Clemency

T

he Florida Board of Executive Clemency on March
12, 2009, unanimously voted to commute the
sentence ofa former sheriffs deputy to time served.
The former Joliet, Dlinois sheriffs deputy, Donald
Keehn, 88, had been sentenced to five years in prison in
July 2006 for a series of drive-by shootings into ~e home
ofa neighbor who owed him money.
Keehn's attorney. David Weisbrod, told the panel that
his client had no trouble with the law until 200S when he
went "offthe rails."
In particular, five times over several months Keehn
wheeled his car slowly thrqugh ~e trailer park where he
lived and shot at the mobile home of a neighbor, Virginia
"Missy" Prittslawton. 66, with a .22 caliber pistol he once
used as a deputy. She was not injured during, the
shootings. However, Prittslawton notified police about the
shootings, who in turn began watching her home and
caught Keehn shooting the home.
,
Prior to the shootings, Keehn sued after Prittslawton
refused to repay about $7,000 she obtained from him.

.'

Keehn obtained a 'mediation order against her but when
she wrote
a check it bounced.
"
"The' bottom fuie is he got no reliefand then acted out,"
his laWyer said.
'
.
"He cannot possibly at this point be viewed as a
danger." added Weisbrod after telling the panel that his
client suffers from renal and congestive heart failure,
diabetes, and skin and prostate'cancer.
.
, The panel agreed to release Keehn after his lawyer
promised he will live with his daughter in Joliet, m. •

mm

More ·Prison~r Beating
Allegations at UCi
'.

N

ew allegations that '8 prisoner was beaten by 8 gang
of prison guards at Union Correctional Institution
(Vel) between August IS and August 16 hav~ emerged
and sparked another inveStigation at that North Florida
prison formerly known as "The Rock." (For previous
artic.es about prisoner abuse at UCI see the lead article in
. the ,last issue ofFPLP and the Update NO,tice in this issue
of FPLP.)
This latest investigation pfprisoner abuse at UCI found
that on August IS, 8 47-year-old white male prisoner
allegedly threw feces at 8 prison guard, following which
he was removed from his cell in a mental health unit at the
prison and assaulted numerous times by the guards over a
two day J>CPod.
.
In 8 press ~nference held August 21, Florida
DepartDient of Corrections (FDOC) Secretary Walter
McNeil said that the beating incident came to light more
than 8 day after the alleged beatirigs took place when
another FDOC employee reported the prisoner's injuries,
(Approximately five months ago FPLAO distributed
information to UCI prisoners and staff about the legal
requirements ot FDOC to report abuse of elderly and/or
mentally' ill prisoners. the criminal penalties for not doing
and where to report Such abuse.)
,.
The prisoner involved in this latest situation at ~t
claimed that he bad been injured in a fall. Only after he
was transported outside the prison for medical care did he
say he had been beaten'.
.
'Four UCI correctional officers and tWo sergeants were
put on leave pending finalization of the investigation.
They are: Lt. Bennett Kilgore, Sgt. Aaron Coleman, Sgt.
Eugene Mclemore, Off, John Carter, Off. Sean Johnson,
Off. Derek P. Ot'bstein and Off. John A. Thomas.
, Additionally, 'one contract and three temporary'nurses
were fired for failing to report the incident. They· are:
Catherine Collinwood, Tony Davis, Alicia B. Forsyth and
Zelda M. Lee.
, McNeil said that he intended to bring the full
ofthe agency to bear on the individuals responsible for the
violent assault, including prosecution, termination and
decertification. He praised the employee who reported the
incident for acting appropriately.•

resources

Florida Prison Legal Penpectives

- New ReportAbolish Life W/0 Parole
Washington D.C. - A new report released during July '09
by The.Sentencing' Project recommends abolishing life
without parole criminal sentences.
. Statistics show that right now there are a record
140,610 prisoners in state and federal prisons who are
serving life sentences and almost one-third of that number
are serving life without parole, meaning they will never be
rele~ed.

The Sentencing Project, a criminal justice research
group that regularly is cited in academic and government
'reviews examining cJiminal justice trends and policies,
states in its new report that the number of prisoners
sentenced to life without parole has more than tripled
since 1992. The report. supported in part by the rising cost
of imprisonment, strongly recommends that states and the
feds take another look at.this issue and abolish life without
parole.
That recOmmendation was, of course, met with
opposition from some law enforcement officials who say
life sentences, including any type of eventual release, are'
needed as they help to drive down violent crime.
The project's review, entitled '!No . Exit," found
"overwhelming" racial and ethnic disparities for those .
\

_.

~

s~tences: percent~

.

Stn'ing life
.66
non-white and 77
percent of juveniles sentenced to life in prison are nonwhite.
Among other findings in the report:
• In J\labania, California, Massachusetts, Nevada, and
New York at least one in 6 prisoners is serving a life
sentence.

.• California, Florida, Louisiana, Michigan anei
Pennsylvania each have 'more than 3,000 people serving
life without parole sentences.
··Pennsylvania leads the nation with 345 juveniles serving
life without parole. .
.
• ,The costs ofhousing an.aging prison population are also
increasing. States can expect to spend $1 million for eymy
p~~er who is incarcerated at least 40 years, the report
concluded.
.
Todd CI~, a professor at John Jay College of
Criminal Justice, said·the cost ofmaintaining a permanent
prison popu1atio~ is daunting. The. total Price tag to keep
today's "Heers" imprisoned for the rest oftheir lives could
cost the nation tens ofbilli~
ofdollars, said Clear.
_
.
.

David W. Collins, Attorney at Law
Fo~er state prosecutor with more than 20 ye~ of criminal law experience
"AV" rated by Martindale-Hubbell Bar register of J>reeminent Lawyers
Your voice in Tallahassee representing prisoners in all areas of po~t-convictionrelief:
" Appeals
Plea Bargain Rights:.
3.800 Motions
Sentencing and Scoresheet Errors
3.850 Motions
Green, Tripp, Karchesky, Heggs cases
State and Federal Habeas Corpus
Jail-time Credit.Issues
. Gain-time Eligibility Issues
Writs of Mandamus
Clemency.
Habitualization Issues
Probation Revocation Issues
Write me today about your case!
'.

David W. Collins, Esquire
P.O. Box 541
Monticello, FL 32345
(85.0) 997-8111

"The hiring ofa lawyer is an important decision that should not be based solely upon advertisements. Before you decid~,
.
.
ask me to send you free wri.nen information about my qualifications and experience."
.

Florida Prison Leglll Perspectives

_ Commentary _
Judge' Appalled at
FQOC's New Bid
·
Ri
.ggmg.
by Teresa Bums Posey

worst abuse of power imaginable. The department
(FDOC) engaged in secret negotiations. blatant violations
of the public trust and unconscionable practices, then hid
behind die very laws designed to protect the pOOple."
.
Secret deals, behind the scene contracts, millions of
d U
0 ars at..stake and floating around loosely. and no
accounta\llhty. What has really changed since fonner.
FDOC Secretary Jim McDonough tried to clean house at
the FDOC's central office? •

TaUabassee- No matter how many times that top-ranking
personnel within the Florida Department of Correetions
~ caught red-handed involved in financial corruption, it
seems it just can't be gotten rid of. '
IMPORTr\NT
On June 25, 2?09, Leon .County' Circuit Court, Judge
,NOTICE
F~ Sbeffie~d ~d that Flonda's prison system "blatantly
ViOlated the public trust" by secretly, negotiating with a
new company to provide for some state priso~ers' mental
On July 2. 2009. the FDOc amended the routine mail
h~thn~.
.
rul~
gov~g ~coming mail that is sent to prisoners by
, •Judge•Sheffield
said that
theI Depllrtment
ofCorrections
.
•
.
.
thel( famihes, friends and other routine correspondents.
aetJo~ m Its secret dealings with Correctional Medical
The amendments are positive for prispners and their
Services, a private company based out orst. Louis, Mo.•
correspondents.
".
were "at best, offenSive, and at worst, iUegal."
.
Several years ago' the FDOC limited the number of
However the judge' d~eda request by MHM
"additional written materiala"to 5 pages per envelope that
Correctional Services, anoth~r privaie medical services
could
be included in prisoners' incoming roUtine' mail.
provider, fora temporary injunction. MHM wanted to
Exceptions were only allowed for certain "written
block the award of a tlve-year contract to CMS through a
materials" if the warden gave permission. The purpose of
12o-day purchase order on a contract that starts July 1
tho~ restrictio~ was to reduce the amoUDt of mail being
2009.
'.
•
receIVed by pnsoners, especially to reduce or curtail info
The judge, in. denying the injunction, said MHM still
o~ the Intem~~ being printed out and sent to prisoners or'
~ I~al remedies available because it bas a bid protest
dIscourage
pnsoners from sending material out to be typed
pending before a state administrative bearing officer.
'
and sent back in 5 pages at a time.
He added that the public. interest would not be served
Florida Prisoners' Legal Aid Org., Inc., vigorously
by an injunction because MHM's contract with the FDOC
opposed that 5-page limitation when it was proposed by
expires June 30. To prevent the state from doing business
the FDOC. however the almost year-long administrative
with CMS "would cause confusion, disorder'and produce
challenge by FPLAO was not successfbl except in
public injury that outweighs the in4ividual right to the
del~ the 5-page limitation for awhile. It was adopted
relief sought," Judge Sheffield wrote in his seven-page
and smce then lDltold numbers of prisoners have bad mail
order.
returned to senders because .it contained more than s. The gist of the problem that led to court was when IBst
pages of "additional written IJ18tel'UJ1s or more· than S
, February the FDOC received four contract proposals to
photographs, etc... "
.
provide mental health services for 18.000 state prisoners
However, just as FPLAO, informed FDOC. when it
in Region IV oftlJe FDOC (South Florida). Many ofthose
adoptel:l'the 5-page limitation, it would cause more work
prisoners have serious mental problems, and are on
for mail room staff and more time and money for
psychotropic drugs.
,
everyone, the FDOC bas finally reached the same
.The FOOC det~ed that none of the four private
conclusion.
co!DP.anies bidding on the coniract met the required
The July 2. 2009. amendments to Routine Mail Rule
cotena, then began secret negotiations with CMS even
33-210.101 -now allows up to 15 pages of "additional
. though jts offer W8» $5 million higher than MHM's, 'which
written materials" to be included per routine mail
has had the contract, wrote Judge Sheffield.
envelope
(incoming mail). The amendment now also
Sheffield was particularly critical of a deciSion by .
allows up to 15 photographs to be sent through routine
FDOC to back-date an official document by 13 days that
mail to prisoners since photos count towards the 15-page
set the CMS order in motion, and then "engagmg in an
,additional written material limitation. See Rule 33old-fashioned sheU game of eating a short-teon contract
210.101(2)(b). F.A.C.
with the same. company as is currently involved in a bid
Fifteen pages or photos are much-more reasonable and
dispute a 'purchase order.'"
will help reduce the amount of mail that mail room staff
MHM attorney Chris Kise, a former legal adVisor to
must process and reduce costs to bOth FD6c and
Gov. Charlie Crist, said, "The people lost today due to the

Flor.ida Prison Legal Perspectives
prisoners', correspondents. Prisoners: Infonn each other
and all your co~spondents oftbis positive mail change.

Note: Currently'the FDOC allows priso~ers to receive up .
to 20 First Class postage stamps (or their eq~valent) per
envelope. for a total of 40 maximum, through the mail.
That is a privilege, a valuable one to those who write
letters and correspond with people on the outside: FPLAO
fought off at least S attempts, by the FPOC to stop
allowing prisoners from receiving stamps through the mail
in the late 1990's. Lately, some prisoners have been
abusing ~at privilege. endangering everyone's', privilege
to get stamps by using stamps to purchase things through
the mail and/or sending stamps out to be sold Both of
those practices violate FDOC rules. You are only Bnowed
to possess 40 First Class postage starilps by FDOC rule: If
you try to send out more than 40 stamps for any reason
you violate contraband rules. Check yourself. Don't let
greed or stupidity ruin it for you and everybody else. All
the FDOC has to do is amend its rule to stop ANY postage
stamps from coming in through the mail. That privilege is
too valuable to lose,. use stamps to maintain relatio~hips
and guard that privilege when you see others 'risking it
with stupid mailings ofstamps. - editor _

Prisoners: Have a free copy of FPLP sent to a family
member or frIend on the outside. Simply send us their
name and address on this form. PLEASE PRINT.

Name
Address
City

Zip

State
crComplete and Mall to:

FLORIDA PRISON LEGAL.PERSPECTIVES

'PO Box 1069

Marion, NC 28752

-Cary F.Rada
Board Certified Criminal Trial Lawyer
Former State Prosecutor'

.
POST-CONVICTION SERVICES
,

•
•
•
•
•
•

3.850 Motions
Sentence Corrections,
Federal Habeas Corpus
State Habeas Corpus
Appeals
NewTrials

"

·AILS
-

CERI'IFIED

The~Bar
CRlMINAL TRiAl LAW

tlD

Cary F. 'Rada, P.A.
318 North Texas Avenue,
Tavares, FL 32778
352·742·2778 ,
E-Mail: info@CaryRada.com
The hiring of a lawyer is an important decision that should not be based solely on advertisements.
, Before you decide, ask us to sElnd you free written information about our qualifications.

Florida Prison, Legal ,Perspectives

POST CONVICTION
CORNER

,
,
-•

~

.,

I"

by Loren RhotoD. Esq.

After the conclusion of a defendant's direct appeal, the next step that is often taken is the
tiling of a Florida Rule of Criminal Proc~dure 3.850 Motion fQr Postconviction Relief.
However, there is another option which is somelimesoverlooked. Following the imposition of a
judgmeht and sentence, a convicted person has a small window during which he can tile a motion
with the trial court asking the court to reconSider/reduce the sentence. Florida Rule of Criminal
Procedure 3.800(c) provi~es that a court may reduce or modify a legal sentence imposed by it: '
(1) within 60 days after the imposition of said sentence; or,
(2) within 60 days after.receipt by the court ofa mandate issued by"the appellate court on
affirmance ofthe judgment and/or sentence on an original appeal; or,
v

(3) within 60 days ~r receipt by the court of a certified copy of an order ofthe
appellate court dismissing an original appeal from the judgment and/or sentence; or,
(4) if further appellate review is sought in a higher court or in successively higher courts,
within 60 days after the highest state or federal court to which a timely appeal has been
taken under authority of law, or in which a petition for certiorari has been timely filed
under authority of law, has entered an order of affirmance or an order dismissing the
.appeal and/or denying certiorari.
.
Thus, depending on the initial disposition of the case, a sixty day period will be triggered
by one ofthe above-listed events. If a plea was entered and no appeal has been taken, the sixty
day period runs from the date of the sentencing. If a direct appeal has been pursued, then the
sixty day period begins to run on the date that the manda~ is issued by the"appellate court. Thus,
a motion to mitigate a sentence must be filed within sixty days of the applicable triggering event.
Additionally, the trial c~urt is required to rule on a 3.800(c) motion to mitigate within the
sixty day period. If, after tiling a 3;800(c) motion, it appears that the trial court will not be able
to coriside~ and"rule on 11 3.800(c) motion within the sixty day period, a motion to extend said.
period must be filed, pursuant to Florida Rule of Criminaf Procedure 3.050. Rule 3.050 provides"
that a trial court may, for good cause shown, at any time, order that a period of time under the
rules be enllirged if a request therefor is made before the expiration of the period originally
prescribed. Smith v. State, 895 So~2d 488 (Fla. 2nd DCA 2005), provides that a trial court is
authorized, under Rule 3.050, to extend the time for ruling on a motion for modification or
correction of sentences filed pursuant to Rule 3.800(c). See also, Abreu v. State, 660 So.2nd
703 (Fla. 1995) [Sixty-day period in which motion to mitigate sentence must be ordered may be
extended under rule' providing for enlargement of procedural time limits upon good cause shown,
providing matter is resolved'within a reasonable time].

Florida Prison Legal Penpectives
A Rule 3.800(c) motion is a valid vehicle for requesting that a court reconsider the
sentence originally imposed. However, under certain circumstances, the trial court will have no .
discretion to reduce asentence under 3.800(c). For example, 3.800(c) has no applicability to
cases in which the death penalty is imposed. Furthermore, Rule ~.800(c) does not give ajudge
the authority to impose a sentence below a minimum mandatory sentence. Another such
situation where a court lacks the authority to reduce a sentence under 3.800(c) arises when the
sentence was the result ofa negotiated plea bargain., Arango y. State;'891 So~2d 1195 (FI~ 3rd
DCA 2005). Otherwise,though, Rule3.800(c) is a legitimate postconviction consideration as
, long as the defendant is within the applicable 60 day window.
If a rule 3.800(c) motion is available to a defen~ant, it may give the movant the abilityto
raise sentencing issues which were not previously addressed to the court. A Rule 3.800(c)
movant should be familiar with, and argue any statutory.mitigating factors which are available
under Florida Statutes §921.0026(2). Said mitiga:ting factors are listed as follows:
(a) The departure results from a legitimate, uncoerced pleabargftin.
(b) The defendant was an accomplice to the offense and was a relatively minor participant
in the criminal conduct. .
(c) The capacity of the defendant to appreciate the criminal nature of the conduct or to
conform that conduct to the requirements of law was su)lstantially impaired.
(d) The defendant requires specialized treatment for a mental disorder that is umelated to
.snbstance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.
(e) The need for payment of restitution to the vi.etim outweighs the need for a prison sentence.
(f) The victim was an initiator, willing participant, aggressor, or Jlrovoker of the incident.

(g) The defendant acted under extreme duress or under the d,omination ofanother person.
(h) Before the identity ofthe defendant was detelmined, the.victim was substantially compensated.'
(i) The defendant cooperated ~th the state to resolve th~ current offense or any other offense.
(j) The offense was committed in an unsophisticated manner and.was an·isolated incident

for which the defendant has shown remorse.

.

(k) At the, time of the offense the defendant was too 'young to appreciate ~e consequ~nces
of the offense.
!
(l) The defendant is to be sentenced as a youthful offender.

In addition to the statutorily recognized mitigating factors, mitigating factors which are
not delineated in §926.0026 can also be used to justifY a reduction/mitigation ofa sentence. .
§926.0026 specifically provides that the possible mitigating factors available to a defendant are
not limited to those listed n '§926.0026. The list o( statutory departure reasons is not exclusive,
so departures based on reasons not delineated in §921.0026, which are supported by the record,
may be permissible. State v. Tvrrell, 807 So.2d 122 (Fla. 5th DCA 2002) A do\Wward departure
sentence for reasons not delineated by statute is permissible it it is supported by competent,

p

Florida PriSOD Legal Penpectives

.

substantial evidence and is not otherwise.prohibited. State v. Voight. 993 So.2d 1.174 (Fla. 5th
DCA 2008); Some examples (but certainly not anexhaustjve list) of nonstatutory mitigating
factors ate as follows:
.
-disparity in sentences ofegually culpable codefendants- It has lon.g been established that·
equally culpable codefendants should receive equal punishment. See Jennings y. State.
718 So.2d 144 (Fla.1998); Scott v. Dugger. 604 So.2d 465 (Fla.1992); and, Ray v. State.
755 So.2d 604, 611 (Fla.,2000). the sentence a cOdefendant receives may be considered
by judge and jurY in determining appropriate sentence:· Williamson v. State. 5II So.2d
289 (Fla.,1987). As a general principle, defendants should not be tr~ated differently on
the'same or similar facts. Slater v. State. 316 So.2d 539 (Fla.l975). It has been
·recognized by Florida Courts that upward departures cannot be justified solely in order to
match the sentence of a codefendant. Von Carter v. State. 468 So.2d 276 (pIa. 1st· DCA),
remanded on other grounds, 478 So.2d 1071 (Fla.1985); Thomas v. State. 461 So.2d 274
(Fla. 5th DCA 1985). However, the Florida Supreme Court has held that the downward
departure set:ltenceofa c;:odefendant~ provide a legitimate downward sentencing
depaittJre factor for a defendant. Sanders v, State. 510 So.2d 296, 298 (Fla.,1987). See
also State v. Fernandez. 927 So.2d 939,941 (Fla. 3"' DCA.2006).
-positive behavior of the defendant subseQuent to sentencing- Davis v, State,. 166 So.2d
· 189 (Fla. 1II DCA, 1964) [court recognized, in mitigati.on, defendant's good.behavior-in
prison prior to sentencing]; McDonald v, State, 743 So.2d 501, at 502 (Fla.· 1999) [court
considered nonstatutory mitigation factor ofappellant's prison behavior]; Davis v, State.
698 So.2d 1182, at 1187 (Fla. 1997) [sentencing court considered nonstatutory mitigation
factor of"good behavior while in jail and prison" and participation in QED and "other
· self-improvement programs."]; Almeida y, State, 748 So.2d 922, atfn. 8 (Fla, 1999)
[court considered nonstatutory mitigat,ion factor of defendant's "good behavior while
. incarcerated."]. .
-victim's consent in regard to charge of sexual activity with a minor-' On remand for
resentencing'for engaging in sexulll ~ctivity with a minor, trial court was not precluded
from considering victim's consent as a basis for imposing a downward departure from the
sentencing guidelines. Knox v. State, 814 So.2d1185 (Fla. 2nd DCA 2002),
.
~

. The above ~ merely examples of nonstatutory mitigating circumstances.. Any applicable
statutory and nonstatutory mitigating circumstances should be presented to the trial court in . .
support ofa Rule·3.800(c) motion. Ifpresented properly and supported by competent and
substantial evidence, a 3,800(c) motion presents the possibility of reducing a previously imposed
sentence, Any attempt to pursue 3.800(c) relief should be timely presented in a motion to
mitigate the sentence. Amotion filed pursuant to 3.800(c) isa sometimes overlooked
postconviction option that should not be disregarded. It is but one more weapon that can and
should be used (if available) to attack an e~cessive sentence.

Loren Rhoton Is a member in goqd standing with the Florida Bar
and a member.ofthe'FloridaBar Appellate Practice Sec/ion. Mr,
Rhoton practices almost exclusively in the postco""ictionlapp~lIate
area ofthe law. both at the State and Federal Level. He has assisted
hundr~ds ofincarceratedpersons with their cases and has numerouS
written aIJIJellate opinions. .

Florida Prison Legal Perspectives

Loren D.. Rhoton

I"

I'---------------Post.conviction Attorney

• Direct Appeals
• .Belated Appeals.
• 'Rule 3.850 Motions
• .Sentence Corrections
• New Trials :
•. Federal Habeas Corpus Petitions

412 East Madison'Street, Suite 1111
Tampa, Florida 33602
, (813) 226-3138
Fax (813) 221-2182
Email: lorenrhoton@rhGtonpostconviction.com
.
Website: wwW.rholonpostconviction.com
.

.

The hiring of a lawyer is an important decision that should not be based.solely on advertisements,
Before you decide, ask us to send you free written information about out qualifications.

·BUY THE BOOK - ON SALE NOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Postconviction Corner Articles
.

t

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 basea .
on professional experience. case citations. and references to the relevant rules ofprocedure
are provided. This book is specifically directed toward those. pursuing postconviction relief.

To order, send $20.00 in the form of a money order~ cashier's check or inmate
bank check (no stamps, cash or. pe~onal checks please) to the address above, or
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Florida Prison Legal Penpectives
~"

.

NOTABLE <CASES
. .

BRADFORD L. EDWARDS

~ folJowmg are summaries of recent stare and federal cases that may. be uiefulto or have a signJfiCQIll Impact on Florida
Pnsoners. Readers should always read the full opinion as published in the Florida Law Weekly (Fia. L. Weekly)" Florida Law
Weekly Fetkra/ (F1a. L. Weekly Federal): Sortthem'Reporter 2d(So.2d) Supreme Court R~r (S. CL); Fetktd Reporter 3d
(F.Jd); or the Federal suppkmenJ 2d (F. SUPP. 2dJ, since these summaries arefor general infonnaJion only.

FEDERAL
U.S. Supreme Court
SPEEDY TRIAL
FUNCTIONAL ANALYSIS.

Vermont v. Brlilon, 21 Fla L
Weekly Fed. S702 (0111312009)
Michael Britlon, a Vennont
state prisoner raised a Sixth
Amendment .claim based on a
violation ofhis right to speedy trial
in V~ont state courts. In July,
2001, he was tried by a,iury. found
guilty as charged. and sentenced to
12 to 20 years in prison. During
the time between his arrest and his
trial, at least six different attorneys
were appointed to represent him.
Brillon "fired" his first attorney.
who served from July, 2001 to
FebtuaJy, 2002. His third lawyer,
who served from· M~ 2002
until June, 2002, was allowed to
withdmw when he reported that
. Brillon bad threaJened his life. His
. foutth lawyer served from June.
2002 until November. 2002, when'
the trial court released him from
the case.
His fifth lawyer.
assigned . two months later,
withdrew in April, 2003. Four
months thereafter. his sixth lawyer
was assigned, and she took the
case to jury trial in June, 2004.
The trial court denied Brillon's
motion to dismiss for want .of
speedy trial.
The Vermont
Supreme Court, however, reversed,
bolding that Brillon's conviction
must be vaeated,and the charges
,against him dismissm, because the
state did not accord him the speedy
trial required by the S~

Amendment Citing to the balancing
'whether the government or the criminal
test ·in Barker v. Wingo, 4Q7 U.S. defendant is more to blame for the
514 (1972), the Vermont Supreme
delay.' Doggett v. Uni~ed States: 505
Court concluded that all four factors
U.S. 647, 651(1992); Delay 'to hamper
described in Barker ~ ..Length of the uefense' weighs heavily against the.'
delay; the reason for the delay; the , prosecution,' Barlier, 407, U.S. at 531,
while delay caused by the defense
defendant's assertion of his right;
and prejudice to the defendant" Id.,
weighs heavily against the defendant, Id.,
at 530 - ,weighed against the slate.
at 529. Because 'the attorney is the
Weighing heavily in Brillon's favor,
defendant's agenrwhen actiIig, or faiJ,ing
the Vermont comt said, the threeto· act in the furtherance of the litigation,
delay caused by the defendant's counsel
year delay.in bringing him to trlal
is charged agajnSt the' defendant, .
was "extreme." In assessing the
Colemon v. Thompson,· 501 U.S. 722,
reasons for that delay, the court
separately considered the period of 753 (1991). The same principle applies
each counsel's representation. The
whether counsel is privately retaiDed or
comt acknowledged that the first
publicly assigned, for 'once a lawyer bas
year should not count againSt the
undertaken the representation of the
accused, the duties and oblig8tions are
state. But the court counted mucb of
the same'" Polk County v. Dodson, 454
the remaining two years against the
U.S. 312318 (1981)
state. The court detCnnmed that
delays in tb!d period were caused, for
.the most part, by the failure of
[Note: A C8Veat... while the Brillon
several of the assigned counsel, over Court afliimed ".the Sixth Amendment
an inordinate period of time, to move guarantees 'that. 'in all crimina1
die case forward.. As for the thud
prosecutions, the accuse4 shall enjoy the
and fourth Barker factors, the court
right to a speedy••• trial' the speedy-trial
fond that Brillon repeatedly .and right is 'amorphons; ~slippeIy" and
. adamantly demanded a trial and that
'necessarily relative.'.. Barker. 407 U.s...
81'22 (quoting Beavers v. Haubert, 198
his lengthy pretrial· incarceration was
U.S. 77, 87 (1905). PoteDtial speedyprejudicial.
The U.S.' Supteme Court held
trial litigators would be well advised to
that the. VepnODt Supreme Court

thoroughly study Fla. R. Crim.P. 3.191

ened in ranking assigned counsel
and 3.251; Sec, 918.015. Fla. StBt.~ and
the .plethora of case law that follows
essentially as' ~ -BctriIS in the
criminal· justice system. Assigned' those
autborities.]
counsel, just as n::Iained counsel, act
on behalf of their c1iems. and delays •
sought .by counsel are ordinarily
attributable to the defendants they
represeut

The Brillon comt further

~

that the "primary issue [at bar] is the
reasOn for the delay in Brillon's trial.
In applying Barker, the courtaskcd

Florida Prison Legal Penpectives
' of Appeab, 11 th
U••
S C ou rt
Circuit
.
ONE-YEAR FEDERAL TIME
TOLUNG CLARIFICATION

Court affinns a conviction on the
merits on diJ'eCt review or denies a
petition for whit of certio~.or, if
the prisoner elects not to· pursue
certiorari review, w:hen the time for
seeking certiorari expires.," Id.. 68Ss
686
'The Hollingsworth court held.
that the holding in Jimenez pursuant
tQ belated appeal applies' to the QOday certiorari credit As a result, on
April 9, 2Q09, the 11 th (:ircuit
granted Hollingsworth's motion to,
,vacate the district court's dismissW
order, of his federal 2244 habe8s
. petition and, ~ded to proceed
; with the 2244 petition on its merits.
.
INQt~: Thjs decision seem~ 1O..clarlfY

FDOC RELEASES CONFIR,MATION
LETTER. DEEMED INADMISSIBLE
HEARSAY.
Vittorio State. 34 Fla. L.Weekly. 8291
(FIa. 03119120Q9)
.

v:

.
Rudolph Vittorio was granted
Hollingslvo!1h v. Florida D.O.C..
.ctiscretionmy review as tl!e lead case
21 Fla. L. Weekly Fed. C1713.
along with numerous other cases ~ the
(I Ill! Cir. 04-09-2009)
. 'DCA Conflict pursuant to admissibility
Leo
C. Hollingsworth filed in
of, FDOC issued release-date letters of
th
the 11 C~t, a motio~ to vacate
,confumation in support of the imposition
the Federal District Court's order
of HVFO sentence enhancement DCA
dismissing his Federal Habeas
conflict was established
Yisrael v.
Corpus Petition as time-bared as. a·
State, 938 So.2d 546 (FIa. 4 DCA 2006)
result of Holingsworth's ~Ia~. 10
which held that a letter ftom FDOC
filing his federal Iu$eas Petition.
administrator confinning a release date
whicbwas caused by a belated
for a previous, offense was admissible
under hearsay exception and Gray v.
appeal proceeding. As weD as the
fact that Hollingsworth did not
two benefits for 2244 petitioners' inSklt~. 91080.2<1867 (FIll. 1st DCA 200S) .
receive the 9O-day ciedit for the
thm th~ C)1lQ-Yea.r periO<i for filing a 'which he;ld' du¢ the; v~ $IDle FDOC
period in which he could have filed
2244 petition appears to· commence' letter was not adinissible under the same
a certiorari petition in the U.S. . at the conclusion ,of a belated appeal' hearsay exception, the Viuorio Comt
8~e Court but did not 'l'h~ , under PIa R. App. P. 9.141 (c) when . stayed proceedings pending .disposition
II Cireuit's prior holding in
the petitioner has not otherwise had a
of Yisrae/.v. State, 993 So.2d 952 960-61.
Coates
v. Byrd, 211 F.3d 1225. timely direct ap~ and the90~ (FIa. 2008),. in which the couit approved
111
(11 Cir. 2000) stated that the onecredit for filing. a. certiorari peti1;ion
the holding Gray and stated the
year filing period was not tolled : in the u.s. Supreme Court is .now release-date letters are
admissible
'during the 9O-day period in which
affirmatively provided to all 2244
under business records or public records
a state prisoner could have but did
petitioners.).,·
exception to the hCarSay rule, but the
not 'file a petipon for writ of
FDOC "aime and time" reports are
certiorari in the United States
Fl.ORlDA
SUPREME admissible onder the hearsay excCption
Supreme C o u r t . '
for Public Records. [for the same
On Janwuy 13, 2009, the U.S.
COURT
p~). .
8upmne Comt issued its decision "
in' Jimenez v. Quarterman, 129 SEXUAL I!REDATOR.
Distr~ct Courts.of, Appeal
S.Cl 681 (2009) which held that,
DESIGNA'J:IONCHALLENGE.
"where a state court grants a
.
'
p~ OFFER FAILURE TO
crimitisl defendant the right to file 'Breitberg v.' State, 34 Fta. L."Weekly • COMMUNICATE
an out-of-time direct appeal during' S 245 (FIp. 02fl612009)
.
state .collateral revieW, but before
Murray Breitberg, petitioned the
'Brien V. State, 34 Fla.' L. Weekly
the def~dant has first sought
Flori,da ,Supreme Court along with
453B (FIa. 5th DCA 0212712009) .
D
federal habeas reli~r. his judgment
numerous other cases under Sup~e
JohnD~ O'Brien. Jr's appeal 1io~.
is not yet 'final' for pwposes of28
court review on the Question .of
.his'
summary.
denial of his' eleven claim
U.S.C. 2244 (dXl)(A). ,Til such a
whether a cbaIlenge to the sexual·
3.850
motion
was affirmed as to all
case. 'the datG on which the predator designation must' be by a
issues
except
'1he
tenth claim, which
judgment bGc8mc final by' .the "civil action as Jteld by th~ court in
alleged.
that
his
trial
counsel failed to
conclusion of direct review or the
Satntel/lenv. State, 931 So.~ ~4
communicate a plea offer to him,that be
expiration of th~ time for seeking . (FIa. 4th .. DCA 2006) or by Rule
would have acceptec1 resulting in a.lesser
such revieW' must reflect the '3.800 (a) motion to correct illegal
sentence. ~. WrIght v, St4~e,' 892
cpnclusion of the our..of-time
sentence is proper "when, it .is
St;i.2<l1209. 1210 '(Fla, sth DCA 2OOS).
direct ap~ or the expiration of ,apparent from the face of the record
The
court held, "although it appearsftom
the time for seeking review of that
that the defendant di4·ilot meet the'
the
State's
reSponse below that his claim '
,appeal.... lei. 686-687.
'
. criteria for designation as' a sexual
,
also
lacks
merit, the response re~es on
Jimenez further held, "direct
Predator.".
non-record documents and state:Qlents
review 'of the out-of-time appeal
that Cannot Sustain a sUIJlDJaJy denial,"
concludes when the Supreme

!:r

m

o

not.

moe

Florida Prison Legal Perspectives
· See. e.g., Harick v. State, 484
· So.2<1- 1239,' 1240 (FIa. 1986)
[holding. a reviewing court muSt
treat the properly sworn 3.850
allegations as true unless they are'
conclusively rebutted by the
record].
The O'Brien Court,
reversed with instructions to· hold
an evidentimy heanng..

defendant does not raise them before
service declaration. See, Fla. R. App. P
'the state rests its case." Id., citing
9.420(a)(2). The Faller Court reversed
McMillan v. State, 832 So.2d 946, .. and was remanded for the trial court to
948 . (Fla. 5dl DCA 2002). With
consider Mr. Faller's motion timely filed.
respect to untimely challenges to
technical deficiencies in the
[Note: Florida's prison "Mail-Box
infonnation or indictment, Florida
rule was Originally created by pro se
Courts have consistently held that a , inmate litigation in Haag v. State. .59J
defendant is nol entitled to relief; . So.2d 614 (Flo. 1992), and later codified
"(1) where a statutory citation for the, by Fla. R. App. P.,9.420(a)(2).]
crime .is given, but all elements of
INole: An unrevealed plea' offir
can somelimes be discovered via a
the crime are properly charged. (2) INMATE LAW-CIJERK MISADVISE.
public records aci requesl for a
where the wrong or no statutory
copy of lhe stale atlorney's file
citation is given, but all elements of Evins v. State, 34 Fla. L. Weekly Di22
(Fla. 41!' DCA 04/08/2009)
..
under §lJ9.07. Fla. Sk!t.I the
crime
are
pop~rly
(!harged.-"(quoting State v. Burnelle,
Anthony Evins filed a sworn petition
881 So.2d 693, 695 (FIa. III J?CA . for writ ofb~ corpus·seeking belated
CONVICTION Of!! .
2004) ,and also citing Cuevas v.
appeal claiming that his counsel failed to
UNCHARGED CRIME.
State. 770 So.2d 703. 705 (Fla. 4th
file an appeal from his plea and sentence.
Mn.feley v. State,' 34 Fla. L.
DCA 2000). lfltimately, the "test _. although requested to do SO by Evins.
Weekly 0453C (FIa. 51b DCA for granting relief based on a. defect The state discovered the- attorney Evins
. 02127/2009)
listed in his petition 'did' not represent
in the charging document is actual
Evins. A .fact Evins Admitted in his
prejudice to the fairness of tile trlal....
Jeffiey Wayne Moseley's Rule
State v. Gray 435 So.2d 816, ,818 . response, albeit. Evins stated a priso~
3.850 appeal was affirmed as to all
law clerk/paralegal advised him to list a
claims iIicluding his claim that he (FIa. 1983).
false name as the attorney which "did not
was convicted of an uncharged
"matter lJS the comt would find the correct
crime.
This -case . involves M~BOX RULE REVERSAL
unlaWful' seXual activity· with a
attorney." The court dismissed the
petition stating, "Petitioner knowingly
~
after which - Moseley Faller v. State. 34 'Fls. L. Weekly
~ore, to false alleg8tions' and ~be
.allegedly ab$COn~ with the " ·0482 (FIa. 2- DCA 03/0412009>'
DougIas H. Faller challenged the
[Evins) cannot rely on the misadvise of a
vietimto Las Vegas, Nevada and
priS()n paralegal·' tQex~~ bi$
· back', to F10riWi where the
~ary dismissal" of his pro se
DefeDdant was apprehended. The motion to withdraw his no contest intentionally false statements of fact ~
State
then
amended
the 'plea to 19 third degree felony <:ounts.
{Note: In this case, the inmate law
information, adding'll charge of . The trial comt dismissed the motion
clerk/paralegal exposed Evins to perjury
interfering .with child custody in' \on the groupd that it was untimely
filed. The State CQnceded that the • sanctions since Evins is acting on his
violation of §787.03, FJa.. Stat.
own under "pro se status despite the
(2003) which contains two relevant trial· court erred in· dismissing the
law c1~rk~sfals~ and misleading advice)..
motion in Mr. Faller's circumstances
subsections.
. Inexplicably.
the
State's because his motion was timely filed.
under Florida's "Mail-boJ(' Rule. 8JnC!lde4 .infonna.ti.on charged the
NO BAR TO SUCCESSIVE RULE
"'Since
Mr.
FaHC?r - was
Defendant' with violating' the
3.800(A) Mo.TTONS
wrong subsection,
yet
the incarcerated at the time he placed his
Moss v. State, 34 Fla. L. Weekly 0 732
judgment reflected. the correct motion into the hands of prison
(FI~ 3 rd DCA 04/0812009)
.
.'
subsection meaning the defendant ·officials he' needed only'to state 'in
Derrick Moss filed a mJe 3.8oo(a)
was convicted of an uncharged his certificate of service that his
crime. The court agreed that as a " ·motion was given to prison officials . motion to correct illegal sentence which
for mailing on the date of service. In
was denied as successive. In its denial
General Rule-Due process is
order, the' trial comt pointed out that
addition to· the certificate of service
violated when an individiuil is
Moss . filed
"numerous preVious
declaration, Mr. Faller's motion was
convicted ofa crime not cb8rged in
postconviction motions" and that·. he
date-Stalnped by· a prison official
the charging instrument" citing to
Castillo v. Stote, 929 So.2d 1180, which is now the practice at most "provides no explanation for why these
claims could not have been raised in his
F;D.O.C. facilities which provides an
1181, (FIa. 41b DCA 2Q(6).. The
previous motions." .The Third District .
extra
layer
of.
protection
for
the
court further· held. ''technical
reversed and' in so doing, stated while
inmate even though 'prevailing law
deficiencies in a charging
Rule 3.850(f) contams a provision baring
only requires the cerlificate of
instrument _are waived if the
It

It

Florida Prison Legal Perspectives .
Johnny CoWaD appealed his
the bial court which 'denied it as
conviction for burglmy raising the
untimely since the mandate issued on
February 17, 2006. The District Court
claim that the trial court erred in
allowing ~ssion' of Cowan's post noted conflict with Robins v. $!me, 992
arrest statements to his co-defendant . So.2d 878 (FJa. 56 DCA 2008) whi~
while sitting in the rear seat of a reached a different conclusion under
patrol car while they were recorded $imilar circumstances in that Robins held
the court should bave, recalled, its,
by a concealed video monitor. The
trial court allowed the prosecutor to
mandate before ruling on a prisoner's
motion for rehearing that had, been
admit excerpts ofthe video recording
at· jmy trial. reasoning that Cowan
timely delivered to ~ officials before
was not being 'interrogated by police
the mandate was issued. However, the
So.2d 1233, 1235 (Fla. 3Rt DCA
at the time. Moreover, no Miranda court also held that point was moot since
the rehearing motion was filed pro se
2008); Pleasure v. Stote, 931 So.2d
WIII11ings had been ,administered; nor
was CoWan's statement a response to while Rigueiro was still repreSented by
1000, 1002 (FIa. 3n1 DCA 2006).
police interrogation.
Cowan
appointe4 ,appellate counsel thereby
asserted, he did not say anythiJig to
rendering the·rehearing motion a nullity.
DEFECTIVE MIRANDA
his co-defendant even though his lips ,See. Logan Siate, 846So.2d472. 475WARNINGS DURING
ajJpeared to be moving on the video.
76 (FIa. 2003) [a pro se filing by a party
QUE$TIONIN,G
The
prosecutor
reportedly
represented by counsel "cannot be
S/Qte v.· Soloman, 34 Fla. L.
emphasiuxl , Cowman's alleged
entertained on the merits" unless it is
adopted by COUDSeI],
Weekly D533 (FIa. 2ad DCA
silence in closing arguments. The
03/1112009)
Disbict Court held that the
The State of Florida appealed ,prosecutor's' cross-examination and
[Note: This case is instructive for pro se
prisoner litigants on -several pointS;' one.
an order granting Jesse Soloman's
closing·' arguments ,were "fairly
motion to, suppress statements
susceptible" of being intmpreted by a pro Be inmate may not file motions
while represented by counsel unless
Soloman gave to the police. The ' the jury as a comment in dofendant's
trial court supjHessed the silence and the state failed to . counsel agrees to adopt the motion or the
statements lifter finding .tbatdem·onstrate· beyond a reasonable
pro Be inmito moves to dismiss counsel
Soloman' was not infonned that he doubt that the error had no effect on .contemporaneously with his motion in
had the right to an attOJ:lley during. the jury. The Disbict Court reversed
which case he would be wise to move for
questioning. The trial court agreed ,for a new trial.
an extension of time to file rehearing.
Additionally, the, Rigueiro court issued
the Miranda warnings were
defective under State \/: Powell,
PRO SE MOTIONS AND mandate in lightening speed at 16 days
998 'So.2d 531 (FIa. 2008).
while most districts issue mandate in 20
MANDATE
RECALL
days to allow "Mail-Box" filing. .This
although .the appeal court held that
TIMELINESS.
court explained in a footnote that its own
lhe trial court never addressed
RJgueiro '\I. State, 34 FIa. L. ' policy bas changed Since Rigueiro to
whether Soloman was "in custody"
Weekly D806C (Fla. 4th DCA
allow for "Mail-Box" rule fjJings so the
when he made the statements. The
court did rCcognize and remedy its own
district court held that even if the . 04/2212009)
Andres Rigueiro handed his pro
mandate issuing policy defect. Finally,
Miranda
warnings
were
insufficient, Soloman's statements Be motion for, rehearing and the colDt noted in a foot-note that -"an .
rehearing en banc to the prison ,appellate colDt's power to recall· its
to police are admissible if Soloman
was not subjected to custodial
officers' [Mail-Box Rule] on. mandate is limited to the tam during
interrogation when be made the
February 15, 2006 following a per
which it is issued." See Stale \I.
Cameron, 914 So.2d 4, 5 (FJa. '46 DCA
statements. The District Court. curiam affirmed decision without a
reversed and remanded. with .' written opiDionon direct appeal, 2005)
'instruction to the bial court to
while he' was still repres,ented by
address the voluntary nature of counsel. The district court's decision
, MANAGEMENT
. CLOSE
,was issued on February 01.. 2006 and
Soloman's statements.
RELEASE
HABEAS CORPUS
mandate issued on February 17.
PROPER
FluNG
FEES
IMPROPER
RIGHT TO REMAIN Sll~ENT 2006. The Disbict CoIDt received the
pro Be rehearing on February 21,
PO..'lTARREST.
Kendrick \/. McNeil, 34 FIa. L. Weekly
2006 and denied it on March 21,
2006. On March 13,2008, defense. D.501D (Fla.lsl DCA03-oS-2009)
Cowan v. State. 34 Fla.'L.Weddy
cotmsel,fiIed a rule 3.850 motion in
DS34 (f1a.' 4da DCA 03/11/2(09)
successive motions; there is no
such bar in Rule 3.8oo(a) motions
which allows defendants to file a
3.8()O(a) motion at "any time"
which is not successive if the '
motion does not raise. the same
issue as was raised in an earlier
rule 3.800(a) motion which would
be hatred .by the doctrine of
collateral estoppel where the
earlier motion was denied on the
merits. Citing, Mints v. State, 994

v.

Florida Prison Legal Penpectives
Kennetlt James Kendrick and,
The court further held. "no filing
2007, Lovette was issued the subject DR
another inmate were involved in an
fee may be assessed in a'true habeas after which he was fouod guilty and
altereationafter which Kendri~k
corpus proceeding. See, Art I § 13,
subsequently
exhausted
his
received 8 DR for fighting and Fla Const;Bochllrsld v. Circuli
administrative remedies. On or about
shortly
thereafter,
,ICT -Court of Second Judicial Circuit"
March 25, 2008, Lovette filed his'
recommended that he be placed on S52 So.2d 946 (FI& lit DCA 1989). mandamus petition in the circuit comt. ,
CM·I status which proceeded to' We therefore direct that all orders of On April 3, 2008, the circuit coUrt
conclusion as well as Kendirck's
the circuit court placing 8 tien on
ordered 'FDOC to show cause why the
exhaustion of adm.ini~ve Kendnct~'strust account to recover mandamus· petition should not be
remedies. Kendrick then filed a fees for the circuit court proceeding gnmted. On May 21,2008, Lovette filed
petition for writ of habeas corpus be vacated and any funds taken from
an amendment to his mandamus petition
in the cbcuit court in Leon County his trust account pursuant to 8 "lien
raiSing additional claims, after which
seeking release frOm CM. The issued in this case be refunded, to
FDOC filed their respohse to the show
cin:uit court entered an order him."
cause order, but· faj)ed to address the
which detennined that mandamus,
additional claims contained in the
not.Habeas Corpus. was the proper FAlLURE TO OBJECT TO amendment The circuit court denied the '
remedy. In so· doing. the circuit IMPROPER
;JURY mandamus petition without ad~sing
com,· then considered the INSTRUCTIONS IS "PROPER Lovette's additional'claims contained in
. his amendment
"mandamus" lWtion to be purely 3.850 ISSUE.·
eml and assessed filing fees and
Lovette argued in his certiorari
imposed a lien on Kendrick's trust Perera v. State, 34 Fla L. Weekly
petition in the· district cOurt, that the
account pursuant to section 57.085
DSS4B (FIa 3/d DCA 03·11-2009)
etreuit court improperly failed to address
(5). Fla. Stat, when it was made to
Ismael Perera was found guilty the claims raised in his amended petition.
appear that he was indigent
on 22 counts of sexual battery and The district court agreed and explained
,The First District' has received life in prison on each count that the Florida Rules of Appellate
consistently held that an inmate to run consecutively. His direct
Procedure are applicable to extraordinary
Who seeks release form close appeal was affirmed, 8fter which he writ- proceedings involving an appellate
, management . back into general
filed a rule 3.850 motion alleging 10
remedy in the circuit court. See, Newell
population is eDtitJed to proceed
claims for relief including a claim
v.. Moore, 826 So.2d 1033 (Fia III DCA
through a petition for writ of that defense counsel was ineffective
2002). An exception to this rule is an
extraordinmy writ proceeding that did
habeas corpus. See. Ashley v. , for ,failure to object to the trial
Moore, 732 So.2d 498 (FIa III court's etToneousjury instructions on· not seek review by quasi - judicial·
OCA 1999); Non1s v. 'F.D.D.C.,
sexual batlery which he claimed was . admitristnltive action which is governed
721 So.2d 1235 (f1a. III DCA ftmdamentaJ error. The trial court by the Florida Rules of Civil Procedure.
1998); 'Taylor 'V" Perkins,' 654 instructed the jmy that Pen:ra could See Surivtt v. Freeman, 924 So.U 90S
So.2d 1019 (FIll. ,III DCA 1995); be found guilty of sexual ~ttery if (Fla. 111 DCA 20Q6).
,
Guess v. Barton.. 599 So.2d 770 he committed an act ofpenetration or
The Lovette court went on to state.
(FIll, III DCA· 1992); Roy v.
uni()Jl. Tbeinf~QD ~~ him
~e rgI~ Qf ~ll!lte p~ in~~de
Dugger, 592 So.2<1 1235 (Fla 1st alleged sexual battery by penetration.
a broad amendment provision stating
DCA 1992); Thompson v. Dugger.
Perera's defense Couoset failed to that, 'at" any time in the interest of
S09 So.2d 391(Fla 111 DCA 1981); object to the above jury instruction.
justice, the court may pennit any part of
the proceeding to be amended so that it
. See also Holland v.' State, 791 'The Perera Court reversed and
So.2d 1256 (f1a Sib DCA 2001).
remanded for ~ evidentiary ~earing.
may be diSposed of on' the merits:'" FIa
. The Kendrick court stated. "the
R. App. P. 9.040(d).. Thus. [Lovette's]
circuit court departed from the AMENDING DR MANDAMUS
amendment to his ,petition was properly
essential niqUirements of Jaw by
before the court, and the trial court
converting· the habeas corpus RESPONSIVE PLEADINGS.
improperly declined to address the
petition to mandamus. It should
claims therein."
"
have detennined whether it was Lovette lI. McNe/~34 FIa Weekly
The FOOC attempted to argue that
the proper court, to consider the D60SA (F1a. 111 DCA 03/19.2009)
Lovett's amendment was improperly
petition for writ of habeas corpus
before the court and retied on Fla R.
Roger Lavette chaJlenged the
Circuit court's dmJjal of his petition ' Civ. P. 1.190 (a) which provides that 8
~ Murray v.Regier, 872 80.2<1
party may amend a pleading once prior
217 (FIa 2002) and thereafter
for writ of mandamus wherein he
challenged a DR for disrespect of '8 to the filing of any responsive pleading,
proceeded to resolve the'case on its
merits or transfer it" ~
prison official and the subsequent and further asserted that the trial court's
loss of gam time. On December 3,
order to show cause constituied a

, Florida Prison Legal Perspectives'
, responsive pleading. The Lovette ,working off-duty library security,
recognized J. B. because she had
court rejected both contentions in
previously issued ,him' a "trespass"
stating the instant petition was not
governed by the Rules of Civil
warning in the public blmuy.
Seemingly deiennined to: get this
, Procedure and the show cause
criminaJ off the street, the officer'
order was not a responsive
pleading. See, Boca Burger, Inc.
proceeded to arrest him and placed
v. Forum, 912'So.2d 561, 566-68 handcuffs on his left wrist at which
point J. B. fled. . The police Iatei'
(FIa. 2005). The',ovette court
f01Dld J. B. SIi11 with handcuffs on,
reversed and remanded for the trial
court to
address Lovette's
and arrested him.
.
The s1ate attorney came down
additional claims contained in the
hard on this 'juvenile, charging him '
amendment.
with: (l). BatteIy on 'a "LEO"; (2)
Resisting ,arrest· with violence; (3)
[Note: Lovette. proceeding pro se,
established two'important points in Trespassing on pf<)perty after
this case with the frequent needfor warning; and, (4) petit theft of the
At the adjudicatory,
pro se inmates to. amend their" handcuffs.
petitions which are governed hy
hearing, the court viewed the
appellate' ,
rules,
when
government's harsh treatment of J.
administrative remedies have been
B. a diff~ way and· reduced the
exhausted and the fact that.a show
battery on a "LEO' to misdemeanor
cause order is not a responsive battery; dismissed the IeSisting arrest
pleading.)
,
with violence and the "trespassing"
in the public libraly. After the
hearing. the trial court also found J.
CONFLICT-FREE COUNSEL
B. not gUilty of misdemeanor
REQUIRED
battery, but g~lty on the only
remaining charge of petit theft of the
Harvey v. State, 34 FIa. L.
Weekly 0 617 (Fla. 51t1 DCA 03handcuffs, after which J. B.
20-2009)
appealed.
The District Court explained
Tharin Harvey pled no contest
that, since a person commits "theft"
to a VOP and related charges after
which he attempted to withdraw 'when he or she knowingly obtains or
uses another person's property with,
his plea prior to sentencing. His
the inteDt to temporarily , or
defense counsel asked the trial
court to appoint conflict-free
permanently, (a) deprive the other'
co1DlSCI after infonniDg the court ,person' of the right to use the
property or benefit from'the property
he could not effectively' advise
Harvey and Harvey related
or (b) appropriate the property for his
dissatisfaction with, his deftmse
See, Section
or her own' use.
812.014 (1) (a)-(b), Fla Stat. (2007).
C01DlSC1.
The District court
Further, because petit theft is a
reversed and remanded and in so
"specific intent" crime, the state.is
doing, stated the trial court erred in
that conflict-free counsel must be
required to prove that J. B. intended
appointed
1D1der
such
to deprive the officer of her right to
circumstances.
use the handcuffs or benefit from
them, or that he' iDteIided to
appropriate' .the handcuffs for his
THEFT DEFINED,
own use: See, C. G. v. State, 981
HANDCUFFED BANDIT
So.2d 1224, 1225 (FIa. 1d DCA
2008).'
.
1. B v. State, 34 Fla. L. Weekly
D553E {FIa. 3 rd DCA 0311112009)
The J. B. Court in its conclusion,
held' the state did not present lIlY
J. B. was at a public blmuy
doing his homework; when a
evidence that J. B. intended to steal
the handcuffs or deprive the police
Miami-Dade
police
officer,

officer of her property. Instead, J. B.'s
of taking the handcuffs was
.incidental to his flight from an officer's
unlawful arrest. ' Finally. the court stated,
"we are sure that J. B: would have gUidly
relinquished· lIlY dominion, control, 'or
possessory right to ~e handcuffs if, he
only bad the key to re1~ them."
act

case

isa, quintessential
example of governmental powers gone
amuck, albeit, justice finally prevailed
for this, juvenile "criminal"' after
depletion .of considerable taxpayer's
resources.)
[Note: This

PD AND RCC CONFLICT
'RCC STRUCTURE

Johnson v. State, 34 Fla. L. Weekly
D596 (Fla.. DCA 03/18/l009)
Christian Johnson sought a direct
appeal after a jmy trial in which he and
his co-defendant Mayfield were charged
and convicted of robbery with a firearm
and carjacking.
The Co-defendants
established conflict at juJy trial and the
trial court permitted the public defender
(PD)to withdraw &om representing
Johnson. The same conflict flowed on to
appeal which prompted the PO to once
again motiOn to withdraw, although 'this
. time, the regional conflict counsel (RCC)
objected to the withdrawal Thus, in
addition ,to the co-defendants' conflict. a
conflict between the PD· and the RCC
was created. The district court noted
the PO and RCC
'such conflicts
have been frequently presented since
new RCC legislation was passed in 2007.
See, Section 27.511, Fls. Stat (2q07).
This case provides great detail as to
the statutory stroeture and obligations of '
RCC vis-A-vis the PO's office. Th~
distriCt court concluded that section
.27.511 (8), FIa. SfBl (2008) n=quires
RCC to assume representation when the
PO certifies that conf1iet exis1s. sUbject
to RCCs duty to certify their own
conflict at which time private counsel
will be reqUired.

between

the

[Note: Inmate litigators should become

famillilr with the provisiom of the new
RCC statute, (above cited) as Is
becoming ·more ptevalenl In Florida

-·0._•.·••

. . _.

.~

.. _. ,

•_ _•_ _

•

..
Florida Prison Legal Penpectives
conflict· litigation as" more .fidly
.ckscribed in the above case.}

not be corrected on direct appeal."
See Ives v. State. 993 So.2d 117. 121 .

(FIa. 4111 DCA 2008):' Baker v. State,
A/JUSING THE" PROCESS OF 878 So.2d 1236, 1239-40 (Fla. 2004)
[. discussing· the history of Rule
POSTCONVICTJON REUEF '
3.8501.
"Instead; . convicted'
Hedrickv. State. 34 Fla. L. Weekly
defendants now file Rule 3.8S0and
0593 (Fla. 4111 DCA 0311812009)
3.800(8) motions as 8 matter' of
Alan Hedrick filed an appeal
course in almost every case. In
. of the denial of his Rule 3.850 many instances, the movant persists
motion raising 24 claims in 109 on filing successive motions." The
pages of"argument... Vt"mse yet, a
legislature
has
provided
8
supplemental. motion raising 3 mechanism for courts to sanction
more claims for a graiJd total of 27 abusive postconviction litigants by'
claims over a span of 130 pages
referring. them to prison authorities
plus hundreds ofpages of exhibits for disciplin3rY proceedings.. See,.
prompting the court to comment Section 944~27,9(l}, Fla. Stat. (2008).
that it was "8 legal forest in which
However. DR procedures may not be
even a valid claim could easily be
effective to deter those serving life
lost." Id, at 0594.
sentences without eligibility for
. The" district court observed parole. The sanction of dismissal
and refusal to accept further pro 50
that, in recent bistmy. trial courts
filings from the abUsive litigant is the
have .iniposed reasonable page
only
efficacious remedy to conserve
limitations on motions for
postconvietion relief. See Gidney the judiciaJ:y's limited resources.
v. State• .925 So.2d 1076 (Fla. 4ih , See. State v. Spencer, 741 So.2d 47
DCA 2006); Schwenn v. s.tate, 958 (FIa. 1999).
So.2d 531 (FIa. 4111 DCA 2007)
In its conclusion. the Hedrick
. [trial court has ~thority to place court stated. "this' case presents a
page Iimitali9ns on postconviction compelling reason for the Supreme
filings and 50 pages is a reasonable Court . of Florida to consider an
benchmark). Even death penalty
amendment to the rules of criminal
cases are limited to 75 pages
procedure to provide It reasonable
posICODvietiOD relief motions. ,See. . page limitation for postconviction
Fla. R. Crim. P., 3.851(e)(I). The motions in non-capital cases."
Hedrick cOurt fm1her staled,
"postconvietion litigants need to , [Note: This case also provides very
compelling reasons to utilize aU doe
understand that. when seeking
posteonviction reliet: less is more."
diligence to limi~ number of pages
and
nurnmlZC
verbosity
in
A legitimate claim that ~ merit
reJief is more likely to be postconviction motions. While it is
overlooked if buried within a. tempting to cite and quote many'
cases in composing claims for ~lief
forest of frivolous claims. In
posteonviction proceedings. the when lengthy sentencing exists, pro
se litigants do so at their own perij as
search for injustice is like the
semh for a needle in a baysI8ck.
described above. See also. Florida
Appellate Practice. by Philip J.
See, Brown v. Allen, 344 U.S. 443,
537 (1953) (observing that ODe Padavano. "Effective Brief: Writing."
"who must search a haystack for a Section 15:15 -15:191.
needle is likely to end up with the
attitude that'the needle is It'ot worth
the searchj.
The Hedrick court further held,
.." "Rule 3.850 WBs intended to
provide. relief for a very narrow
class of serious errors that could

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Florida Prison Legal Perspectives

..

'

Dear FPLP: I have been reading about other prisoners writing FPLP about prisoner abuse and how DOC staff cover said
abuse. I want to sharC what happened to me recently at Mayo CI. On November 9. 2008 at 11: IS am., I was a t the East
side canteeriwindow waiting to get a sandwich when officer Jeny Terrill started yelling "get away from the canteen area!"
He yeUed a second time, before approaching me. I told him that I was waiting for my sandwich. He then responded, "if
you ever talk to me like that' again I wiU kick your mother ' - ass, do you understand?" I replied "Yes Sir" and I
apolo8ized. He did not respond. About five seconds later officer Terrill grabbed my head with his right hanp and slammed
my head into the wall three times while cursing me. He then handcuffed me. I was taken \0 confinement and given a false
DR. Officer D. Folsom was also present when this took place. Thereafter I filed several grievance about this incident,
however. nothing was done to the officer. Also the prisoQers that saw the incid~t when called as witnesses were too
coward to write a statement. HopefuUy, one day these punks and cowards that abuse prisoners will be brough~ to justice or
disciplined for abusing prisoners. Until then, thank you for exposing prisoner ab~. GR MCI
Dear FPLP: The popular "lock 'em up and throwaway the key" approach to crinie in Florida will never change as long as
inmates continue to be used as free labor'to build more and more prisons. Nobody. not the legislature, the governor. the
FDOC. the parole conunission, etc. are going to convert mandatory 85% sentences to. 65% until inmates stop proyidiDg
"free labor" to build their own cages. The new age inmates who gleefully build prisons are not only digging their own'
graves but are also digging the graves, so to speak,' ofevery prisoner confined by the fI)OC. 2ad those waiting to enter the
JoDOC. The collab<?rators who recently provided their labor to build P-donn at SCI. and who are serving a mandatory 8'%
of their sentences (no extra gain time for their labor) were rewarded With an extra tray of Aramark garbage and an
occasional. good boy. pat on the back by their keepers. The new age inmates who never worked a day in their lives prior
to entering the FDOC worked like beavers solely to benefit the state. i.e.• so that the state' could continue to incarcerate
them~der the mandatory 85% sentencing scheme. The new age inmates aren't noted for any great degree .ofintelligence.
The'S5% sentencing law will never change until inmate coUaborators wise up and refuse to provide the state with their
free labor to build new prisons. Logic dictates that if the state had to hire, at tax-payer expense, skilltd 'Workers to build
new prisons then it just might have a change of mind conCerning the "lock 'em up and tIirow away the key" approach to
crime. Inmate collaborators need to wise up and stop ,buildirig your own cages. More imporumtly stop building mine.
KRSCI
. '

.

Dear FPLP: I recently was granted Ii Petition of Writ of Certiorari from the 151 DCA, L~n County. Florida, the Mandate
was senno the 2nd Ju~cii1l Circuit on January 20, 2009. Richard T. Parent v. Walter A. McNeil, FDOC case no: lOOS14S3 L.T. case no: 200?-CA-003262. I was hoping if you publish this case in an,upcoming issue ofFPLP. that I maybe
sent a copy of that· issue. I am,not able to affordto.subscribe to FPLP or I surely would, although I have been reading it
evety chance I get. As a' matter of fact I have used. many case Jaws and tips from FPLP including the most recent
Certiorari. It was great to finally overcome a D.R. that I should never received in the first place, Dot to mention getting
334 days ofgaintime back. So thank you for a great publication and keep up the gre8t work. RP GWe
Dear FPLP: Please note that I was delighted to again renew my subscription to your essenti8I publication. Thank you for
the information and support that the FPLP gives us and our families. In furtbenmce ofyour May/June 200S Vol. 14. Issue
3 page 8, Letters to the Editor, from G GCF • there needs to be a serious State-Wide Published Alert for prisoners to not
get tricked into voluntarily trmisferring to the misery. torture, torment and turmoil of dysfunctional Disgraceville
corruption facility. Breakfast at 4:00 a.m.• lunch at 10:30 am.. dinner 3:30 p.m. maybe one hour a day outside-ree. There
is a reason that GEO is the first two letters and last letter in Gestapo and this place is, not to be compared and or confused
with the progressive. rehabilitative environment of South Bay. Everything stated in the above referencdd letter in the
May/June issue is true and now, six months lateris actually worse. Lockdowns, shakedowns, restricted movement, two
hour counts. All is SOP of this place on a daily b~is. GRCF is on itS 3rd Warden,2ad AWP. 2nd Colonel, 41h librarian and
3rd grievance coordinator. There is no such thing as health care or medical treatment here. A prisoner is forced to wait 3.
4 or ,nore hours to' be seen in a disease infested' medical lobby only to be re-scheduled. One prisoner had to 'wait nine .
months for surgery on ~ obviously broken foot which waS finally performed only after we filed a 42, u.s.c. 1983

Florida Prison Legal Perspectives
complaint for cruel and unusual punishment. See Kirby v. Charlie Christ, case no: 508 cv 369/RSIMD, U.S. Dist Court
Flit And even contraly to Singletary v. Costello, 665·So.2 nd 1099 (Fla. 4th DCA 1996) (Constitutional Right to refuse
Medical Care), I was given a DR by medical staff for refusmg to consent to the nonexistent medical care and avoid hours
waiting in the MRSA/STAPH infected medical lobby. the DR was dismissed in the investigative stage and never went to
a hearing. The alleged law library for .1900 prisoners is" smaller than the law libraries at either ACI West or Zepbyrhills CI
and there is really not a general library. Likewise the visiting park is grossly overcrowded with only 46 prisoners and their
families present at count time' with only two microwave ovens available. Martin CI, with half the population had five
microwaves.. The canteen situation is deplorable. The prices are outrageously high, there is only ,one canteen on the yard
which has only soft drinks, a few sandwiches, ice cream and tobacco. All other items have to be ordered with a waitof
.one week before receipt. Then you never know if or When you'll receive your order. There are no water fountains in the
dorms nor hot water b~t one micro wave for 104 man Wing which the officers are always taking as mys grouP.
punishment. So Florida prisoners beware ofdysfunctional Dis Graceville. Transfer at your own risk. WGH GCF
Dear FPLP: My name is Howard and I am a Juvenile Lifer (JVL) 1st time offender. The first' part of my incarceration I
thought I was one bf a very few. rve met many JVL during my 20 something years of incarceration. rm Urging all JVL to
tell family and friends to log on to.http://HR4300.com. That is the petition site'that's trying to get 500 signatures to end
juvenile life and provide better defense for juveniles facing life. This is anyone who has a tife sentence that was 17 or
under when the~ did their crime. Petition s.ite has more information.. RH SBCI'

FPLP Staff: First off thank you for your devotion to us in the prison system. You keep us pretty well informed of what's
going on. I myselfam glad that we have people like you on our side. Now, with all the short falls Fla. is experiencing. the
budget cuts and the debt that Fla. is in, DOC still does things to use up 'more unnecessary money. I was moved to WCI
Annex to open it up. Then after two Y2 months moved to Wakula Annex to open it up, now rumor has it we'l be moved to
Suwannee CI to open it up. It would seem that all the many hours and money it takes to keep moving us from one place to
another could be better spent else where. I keep seeing where they keep taking money from Education and giving to DOC
so that tells me that liThe great state of Florida" could care less if our children get an eduCation, because as I hear' guards
saying all the time. "We have a place for them". Wake up Florida and, stop..standing for anything. Bones WCIA
,

.Dear FPLP: In past issues years ago you used to put the names ofinmates that passed away or that were killed. How cOme
you stopped doing that? That is'about the only way us inmates know when our friends pas~ away or were killed and I
wouldtike to see it brought back in the issues. Also I noticed that other prison subscriptions like PLN tells when' inmates
get killed in ~fferent.states. or when mmates get stabbed, but yet your paper rarely tells when a inmate in the Florida
prison system gets killed orstabbed. I have been in prison going on 29 years and I knOw. how often Florida prison inmates
get killed or get stabbed but rarely as your paper teUs abOut it a person is lead to believe that Florida priSons
peaceful. I enjoy your paper and have received' it for years. but I feel that you sugar coat how bad Florida prison really are.
Please consider adding these issues to your pa~. DAM NFRC

as

are

Dear FPLP: I read the column written from inmates all over Florida shBring their experience and the hideous acts that are
takiDg place at different institutions. And no on~ from the free world has gotten together to make a change. There is no
need for· trying to clean up the corrupt DOC staff in· the system because once they are removed, they are just given a
;higher rank. Within one or two months the staff who were Sgt., Lt.. Capt. are now Asst. Warden. Wardens and Region
i Directors. If someone were to do a investigation on all the staff who have moved up in rank since Florida Governor Christ
took office and forced Mr. McDonollgh to resign. You would find over 200 hundred staff who have moved up 2 and 3
ranks in less than a year. Since Mr. McDonough resigned the physical abuse h8s started b8ck and even worse in region 1
and 2. I am houSed at FSP and twery day I walk down the hall here I watch a inmate walk by me with blood all over his
face from where he was beaten'by staff: They sometim~ put the inmate on a call-out to medical for bogus reason, once
he's up there they take him into a room in medical where there will be 5 or 6 officers there waiting on him. The nurse's
cover up the abuse and hideous acts toward inmates and the beating continues. Staff here at FSP and the rest of the
institutions in region 1 and 2'beat inmates like it's legal. If I could count the thnes I was jumped on by staff during my 18
. years rve been incarcerated, I would probably lose count Bambam FSP
.
Letters to the Editor from FPLAO members may be printed in this section. The identity. of letter writers will be by
abbreviation, unless otherwise specified by the writer, for protection against possible retaliation and to enCourage
freedom ofsp.eeck All letters printed are subject to editing for clarity and lengtk All letters cannot be printed but are
invited. A~.ess letters to: Editors, FPLP, P.O. Box /069, Marion, He 28752. Ijyour letter also concerns membership..
member~hlp renewal, address c/lange, etc., please address that ~alter at the beginning of the letter .to assist staff in
processingyour mail •
.' .
.'
..

Florida Prison Legal Perspectives

MOST FREQUENT MISTAKES MADE INPIDSONER §1983 LAWSIJITS:
By Brell fens'er.
1) Mistake #1 is making your complaint too
long and trying to "sound"Uke a lawyer. .

,

everything you al.lJ3ge is true. See #1 above for the required
. elements to state a claim.

All the Rules of Civil Procedure require isa ;'shortand
plain statement" entitling you to relief. .(See: Fed
R.€iv.Proc 8) The proper time to prove your claims is at
4) Cla.m . based. upon Respondeat Superior
trial- not in the/initial chiim or complaint. In order to
theory'ofsupervisory liability.
"state a claim" upon which relief can' be granteO it is
rarely necessary to use more than one or tWo paragraphs.
Supervisors .may be named as defendants if they have
The folloWing elements of a statement of claim are all that
personal involvemttnt in !njuring you.. They are not liable simply
is necessary;1o allege:
Who injure~' you; What
because they are supervisors. Minimally, yo!! must allege 'the
.' constitutional or statutory .right. was violated; . Where
supervisor was. deliberately indifferent 'or a malicious or reckless
(proper venue); When (within statute
::::::=======di=s~=eg=a=ro=to=:;..a known~sk of injury.. Negflgence or good faith
of limitations period).;
How
~
mismanagement Is. insufficient to state a
(causation) they did it; While acting .
claim. FrequenUy Waroens or higher~IJPS
under color of. state law or apparent
. are bro1Jght into a suit based upon a theory
authority; lnJu,ylDamages. In other
of "failure to train, supervise, di~pline or
words, it is sufficient to simply state
control" their. suborolnates. A supervisor
your legal theory of causation together
may not escape liabUity .because he is
with .the minimal amount of factual
willfully blind to a state of affairS or
allegations necessary to show that·
becaus(l he has delegated the task of
. some state' employee intentionally· (or
injliring you:to his underflngs,
. recklessly) deprived you of a right or
privilege
guaranteed
by
the.
U.S.Constitution.

5) Failure to' exhaust your
administrative grievances.

2) Mistake #2: Claiming
negligence in a §1983 s~it.

~Iake all your mistakes in your,

ruup draft in your final proof .

Negligence fawsuits such as Medical
Dot
Malpractice; .Legal Malpractice, SlipJFall;
negOgent loss of properly, etcetera, etc.Vl)py.
must be argued In the· state county or·
circuit courts· under stOlte .law. -Only
Intentional or reckless torts may be argued
in a §f983 suit. The one exception to this is If you are invoking
the supplemental jUrisdiction of the court to hear your state law
claim simUltaneously with the federal claim: These are called
."pendent claims." This is like a two-in-one suit.
.

Do your ~b Dowl .

..

3) Failure to "State a Claim."
The most frequent cause of dismissal of Prisoner lawsuits is the
."failure to state aclaim:' this is an affirmative defense-that the
defendants may raise in a Motion to.Di~mlss early on in your
suit. If the court dismissed your complaint wlo prejUdice you
.may re-file a new amended complaint. This affirmative defense
is sometimes referred to as the "so whar defense because you
have noCiaim for which. relief may be granledeven assuming

You. must complete all the steps of any
available grievani::e procedure at ttieprison
until a final decision is receivE!d. This Will
be. attached to your initial complaint
Failure to exhaust is an affirmative defense
that mlist be plead and proved by the
defendants in oroer to get your c1a1ins
dismissed.

6) Asking for multiple millions in dam!iges. .
You are not going to win the lottery this way. Please do not clog
up the court with your frivolous, incredible claims. You are only
hurting yourself and other legitimate plaintiffs by doing this.

7) Using "Class Actions" when an individual
suit will do.
You are not going to be able to maintain the pace of litigation as
a class representative pro se . Moreover, any mistake you make
Will be imputed to the clas! of. prisoners. These are more
complex and expensive 'than 99% OF. PRISONERS CAN
HANDLE. Leave the class actions to the ACLU National Prison
Project - This Is' their specialty. This Is not to say that .your suit
will'not be picked up by the ACLU later and made into a class or
the court could consolidate number of similar suils together.

a

Florida Prison Legal Penpectives

~) 'Falling ,to
perfect service
summons(es) and complaint.
t

of

the

,serve your requ~sts for Production and interrogatories with the
, ComplainUSUmmons., (Check Local Rules for your' F~ra1
District Court - some' Courts Will want you to walt 30 days after
service before snowing discovery).

,

In federal court you have 120 days from the date of filing to
serve each" defendant with the, summons/complalnl '
Altematively, they can sign awaiver of service form. The return
of service will !?e, reflected by a dated entry on the progress ,
docket at the courthouse. You may view the progress docket
using the PACER' (Public Access to Courthouse EleCtronic
Records) on the in~met or by buying the docket (50
centslpage) from the clerk of the courl The court has no
Jurisdiction over the defendants until service is perfected. If the
Defendants are ~vadlng service at the prison address then you
may send the process server to th,eir home address. You may
obtain this address by searching public records in the county
courthouses. The Grantor/Grantee Name Index of the Deed
Book will have the familyname and the Deed itself provides the
address.. Additionally,' Driver Ucense records are available from
the state for less than ten dollars,'through the mall or via online
at the courthouse or driver Iicen'sing office. Voting Registration
records'may have an address, D.L#, S.S.# or other identifier'
that will put you on the trail. Often aphone # is listed which can
be looked up in the Cross Directory at the County library to give
you an address. Sometimes calling 411 and a~king for the
address will do. The'Process Servers use various fee based
Information services such as 'Autotraklm, 'Intellius~, Experlantll,
Trans,Unlont1l which are also available to anyone through the
}n~m,~,

9) Missing tbe 10 day-dea4Hne'to fde your
".Objections ',to 'Magistrate's Report .&,
Recommendation.:'
Once you have completed discovery and the Judge has a It
motion for Summary JUdgment filed by the Defendants and/or
Plaintiff the assigned Judge will usually refer your case to a
Magistrate Judge for a recommendation as to whether.to have a
trial orto dismiss your case by granting the Defendanfs Motion
for Summary Judgmenl Once the Magistrate Judge has filed
his Report &Recommendation to the Judge you will have only
10-daysto file O~Jections to the Report & Recommendation.

10) Delaying, your discovery requests
when you're on a, FastTrack 'case
manageBlentdocket
Because you will seldom get the defendant!!', to .Comply
voluntarily with your discovery requests in a timely manner you
must leave yourself enough lime to file Motions,to Compel.
Because' prisoner cases are f(equenUy assigned, to fest track
tase management dockets you WIll run out of time before the
defendants run out of excuses. Most JUdges are compUcit in
this shoddy practice and second-rate justice for prisoners.

11) Not taking the time to type you~
Complaint and pleadings.
. Devote as much time to your complaint as you want the Judge
to devote to yourcomplalnl Handwritten legible complaints are
permitted but typewritten Is more professional.

12) MifhandHng
Motions.

Summary,

Judgment .'

More lawsuits are lost at this stage than at any other point In the
progress of a case. Read Fed.Rule Civil Procedure 56 and also
12(b). SUmmary Judgment is.a fest and dirtY way of managing
the overwhelming'caseloads of the courts, where a trial is not
needed. "Trial by Summary Judgmsnr tactics are frequenUy
used (abused) by courts wanting to quickly dispose Of prisoner
cases clogging their dockets even where a trial on the merits is
warranted. Summary Judgment Is premature when discoVery Is
Incomplete and js ~ot proper wtle~ there are material fact
questions and proof Issues to be ,~ed.. A classic' sw~r1ng
contest betw~n witnesses. for example, cannot be resolved on
, the, pleadlng~ and, should warrant a trial. Be
to read '
"several dozen summary JUdgment cases In the law books before
venturing into this territory. The defendants will probably file a
Motion for Summary JUdgment.b8sed upon a claim of Qualified' ,
• Immunity (good faith Immunity). ' Be ready for tt1ls. The
defendants may take an Interlocutory Appeal from an adverse
decision on the qualified Immunity question. Plaintiffs may also
ask for Summary Judgment or Partial Sumnlary' Judgment
whenever they feel that there are no Issues to be tried and the
, pleadings supPort their ~aim. ,Be sure to support your'Plainliffs
respon~ to Defenda"fs' Summary, Judgment Motion with
necessary affidavits. Be wary of the court convett/ng the
defendanfs pleadings Into a Summary JUdgment prOceeding on
their own initiative.

sure

13) ,Get your
initiatiiig a suit.

medical

records

before

14) Request your rheory of Defense Jury
Instructions before ,y~ur trialdate. .
" .

.

15) Do ,your ,background searches ontbe
'Defendants before your, trial,date to locate
prior, bad. acts, diSciplinary problems,' 'past'
lawsuits and internal affain investigations.r

..,

•••...••• ,.. _,---.:~

. . . ···01

FI~rlda Prisoners' Legal Aid Organization -Inc.

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BECOME A MEMBER'
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address. Thank You. All members iec:cive Flori. Pruon ugal Penpectivu•
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I

PRIsoN LEGAL NEWS

SUBMISSION OF MATERIAL TO
FPLP
.
Because of the tnrge volume of mail being
received. financial CQlISidemtions. and the
iMbility to provide individual regal assistnncc,
members should oot Send copies of· legal
rJocumcnas of pending Of poteIdiaI cates to
FPLP without having first contacted the stAff
and re;ceiving directions to send SIUI1C. Ncit1lf:r
FJ'LP. nor its 5tDft: lite n:sponsibfc fur any
lWoUcited ml1tCri4l senL
.
. Members arc requested to continue sending
newS infurmntion. newspaper clippings (please
include name of paper and dale),
memomndums. photocopies of finaJ decisions
in unpublisMd cases. and potaltiltl articles for
. public:ation. Plcnse send only copies of such
material that do not have to be raumcd. FPLP
depends on' YOU. its readers l1Ild members to
keep informed. Thank you for your
c:oopcnrdcin mtd participation in It:lping to get
the llCws ouL Your elTON are gn:ady
appRdaled.

Prlstm 1AgId ~ is a 48 p33C maaddy ..,.me
,,1Iicb has bcm paMisbed sim::e 1'990. Eadt issue Ai
p!Cbd wUb summaries aDd IIIIIyIis of rccca CGUI1
da:isians fiaal mamd the CIOIIIltIy tfadiq widt

prisGDet risfr!s IIId writtm· hm a prisacr
pcnpecdvc. 11Ie mtr3tziac. atlm· CIIria adidcs
ftoaa dDnteys' giYfq bow-tDlidpIiGa I3ltrice. Also
iDdded fa adl Jauc lft newslftidcs cfaIiq with
plisoiHdmd sWaaIe malldivimi hal die u.s.
md arauad die.....
.
.'
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VOLUME 15 ISSUE3 MAY/AUG-2009
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Florida Prison Legal
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