Florida Prison Legal
VOLUME 6, ISSUE 3

ISSN#1091·8094

MAY·JUNE 2000

SILENT KILLER STALKS PRISONERS IN FLORIDA
As the Florida Department of
Corrections (FDOC) heads into the new
millennium, a silent killer shadows
Florida prisoners. A virus called Hepatitis C (HCV) is fast becoming a major
health concern throughout the nation.
Estimates generated by national public
health experts show that as many as 60
percent of the two million prisoners in
the U.S. have HCV.
While many states including Maryland, California, Rhode Island, Texas
and Virginia have published scientific
studies of the virus in their prison
populations and taken steps to combat
HCV, FDOC has chosen to remain
mute on the subje~t despite the staggering influx of HCVcases in their own
prison population. (1)
HCV infection wreaks havoc in
the body, causing lymph cancer, exacerbating asthma sufferers, destroying
kidneys and thyroids, as well as severe
liver damage. HCV causes liver damage in about 70 percent of all cases
and is 5 percent fatal even if. treated
properly. Standard treatment requires
daily doses of protease inhibitors
(ribavirin and interferon), costing approximately $15,000 per patient per

year. Thus the limited medical enthusiasm for expenditures of "public
health dollars" on prison HCV cases,
even though Virginia Department of
Corrections medical director, Dr. M.J.
Vernon Smith has said, HCV in prisons is going to make HIV "look like a
little baby." (2)
HCV is transmitted primarily
by blood; therefore, needles used for
street drugs or tattooing are being targeted as the sources of the very high
prison infection rate (as compared to 2
percent in the general population). One
study identifies five independent risk
factors for HCV infection: intravenous
drug use, prior incarceration, blood
transfusions (a serum test for the blood
supply was not available until 1992),
sexual contact and tattooing. (3)
Currently medical data shows
that already the HCV d)reat in prisons
looms two to three times larger than
HIV. In 1992, the American College of
Physicians (ACP) and the National
Commission on Correctional Health
Care reported that AIDS jncidents in
the prison system (202 cases per
100,000), was fourteen times that of the
general population; prison HCV inci-

dents are already twenty times the rate
in general society. The ACP report estimated the annual cost of caring for a
HIV positive prisoner at $5,000; with
HCV, the cost is $15,000. The implications are clear. FDOC has been slow to
respond to the HIV crisis in its prisons
at a cost much less per prisoner than
will be needed for HCV'infected prisoners. The same hesitancy can be expected, and has already been witnessed
by Michael W. Moore, Secretary of
FDOC.
In an article published in the
Tampa Tribune March 4, 1999, Michael W. Moore made his plan for
dealing with these virus infestationS iri
FDOC clear by proposing a plan to
segregate those prisoners. found to be
HIV positive, which includes approximately 2,400 prisoners. Although Michael W. Moore has yet to address the
issue of the HCV epide.mic, he is certain to have the same attitude. ACLU
Executive Director Howard Simon
called Moore's proposal analogous to
the creation of "leper colonies".
In a recent article found in the
Florida Corrections Compass, a publication directed at FDOC employees, it

FROM VISITATION TO ALIENATION
A MESSAGE TO MEMBERS'
NEW DffiECTIVE FOR ADMISSABLE READING MATL
CAMPAIGN 2000 ON THE INSIDE
OUTSIDE IN
FORMER SUPREME COURT JUSTICE CLAIMS INNOCENT MEN EXECUTED IN FLORIDA
FPLP SOUNDOFF
NOTABLE CASES

2
4

5
6
7
7
9
11

was revealed that the Florida Depart- 3. G. Delage, et ai, "Risk Factors for
Acquisition of Hepatitis C Virus Inment of Health has received a grant of
fection in Blood Donors". •
'
$12 million dollars to help in combating HCV, especially in nonincarcerated persons. The $12 million
From VISITATION TO
has been set' aside for the education of
ALIENATION
correctional officers and prison health
by Bob Posey
care workers, said David Thomas, M.
D., Health Service Director of FDOC.
The secretary of Florida's prison sysHowever, no plan was proposed by tem has a problem. Although Michael
Thomas to institute screening for HCV Moore was picked by Gov. Bush to run
of prisoners or the acquisition of the the Florida'Department of Corrections beneeded drugs to treat prisoners now cause of Moore's "get tough on prisoners"
suffering from the virus. To date FDOC policies in Texas and South Carolina, the
has made no move to address this issue Florida system had already been
nor has FDOC published any medical "toughened" before Moore took over. In
reports delineating a plan to care for the mid-1990's, state lawmakers, playing
prisoners who test positive for the virus the get-tough-on-crime card, had reintroor taken' steps proposed to prevent the . duced the chain gang and passed laws defurther spread of the deadly virus.
signed to make doing time in Florida
The state of medical research on harder. By the time Moore took over, gone
HCV today in FDOC might be com- were most of the programs like Jaycees,
pared to that of HIV in the 1980's. The veterans groups, hobby crafts and· art proepidemiology and natural history of the grams. Gone too were packages from
disease is in its infancy. The Georgia families and most personal property had
DOC recorded a soaring number of been stripped from prisoners. Recreation
HCV cases between April and Septem- programs had stopped receiving any
ber of 1999. In those months the num- funds, no new recreation equipment could
ber rose from just 18 in April to over be bought, or existing televisions replaced
50 in September. Florida, which boasts or fixed. The use of confinement for years
one of the largest prison populations in at a time was expanded before Moore
the country, over twice that of Georgia, came to Florida, he inherited a strippedcan expect a comparative increase in down system, with not much to "get
the number of HCV cases in the tough" on. Really, only one area remained
months and years to come. If the relatively untouched, an area that Moore
FDOC does not recognize the severe has now turned his attention towards to
health risk of HCV looming in its fu- toughen up - visitation with family and
ture immediately the virus not only will friends.
decimate the present prison population
Largely unknown to most prisoners
but will move into the general commu- and their families and friends, for the past
nity while infected, untreated prisoners year plans have ~een being made at the
are released.
FDOC central office to radically change
Randy Shilt's impassioned his- (and limit) prisoners' ability· to receive
tory of the AIDS crisis (And the Band visits from those on the outside. Since
Played On)' recounts the massive visitation is a privilege, and not a right, it
buildup of militant organizat.ions de- . is susceptible to arbitrary change by those
voted to getting the federal medical re- wishing to appe!U' toUgfl on prisoners, or
search bureaucracies into action on by those who see prisoners with an outside
AIDS research. Is this whole story go- support system as a threat to their authoring to have to be replayed with HCV? ity and control, Whatever the reason, visitHaven't we seen enough tragedy from ing is under FDOC's microscope and is
ignorance dealing with HIV...
going to become more difficult and less
congenial'- if we are not prepared for what
I. A. Spaulding, et aI., "Hepatitis C is planned.
in State Correctional Facilities," Preventative Medicine
Part of Moore's Plan
2. Richmond Times Dispatch, May
On March 31 an article appeared in
9, 1999.
the Tampa Tribune about a move by the

F.P.L.P. VOLUME 6, ISSUE 3

FLORIDA PRISON LEGAL
PERSPECTIVES.
POBox 660-387
Chuluota, Florida 32766
Publishing Division of:
FLOIlIIIA PIlISOXIAS LlGALAIII OIlCANIZATlOX.INC.

A 501 (c)(3) Non Profit Organization
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TERESA BURNS
BOB POSEY
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FPLPSfAFF
PuhIJahar
Editor

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FPLP ADVISORY BOARD
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PHILIP BAGLEY. SHARON SIMMONS
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ROBERT BARISH

f ,

FLORIDA PRISON LEGAL PERSPECTIVES is
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Page 2

FDOC to eliminate contact visits for
death row prisoners. That proposal caught
the attention of prison guards, public defenders and civil rights activists. Death
row prisoners received information earIier in March that the prohibition on contact visits was being considered, along
with limits on the number of library
books they can check out, access to
clergy and religious materials, ,and the
number of times they may shower and
shave.
FDOC spokesman C.J. Drake said
the proposed restrictions are part of Michael Moore's plan to clean up the state's
prison system; in fact, according to
Drake, it has been part of Moore's plan
since he took over the department more
than a year ago. Moore had been a major
proponent of similar policies in Texas
and South Carolina before he came to
Florida.
Randy Berg of the Miami-based Florida Justice Institute said this isn't the first
time that this has been tried in Florida.
He was part of a group of attorneys who
filed a federal lawsuit in 1979 when
prison' officials tried to impose the same
restrictions on death row prisoners visitation. That lawsuit was settled when
prison officials agreed to let death row
prisoners have contact visits, except for
those whose appeals have been exhausted
or who have disciplinary problems.
This latest proposal sparked unrest
among death row prisoners at Union Correctional Institution. On the morning of
April 3 more than 250 death row prisoners refused to eat in protest of the proposalto ban contact visits. .
"No matter how disgusting the general public might think these people on
death row are, they are human beings and
they're going to react like human beings," said Hillsborough County's' Assistant Public Defender, John Skye, a former

F.P.L.P. VOLUME 6, ISSUE 3

state prosecutor who helped send five
people to death row. "What they're going
to do [the FDOC] is make dangerouspeopie more dangerous. It's like imposing a
tougher sentence on the prison guards."
On April 12 a news conference was
held at the capitol building in Tallahassee
where family members of death row prisoners and some state lawmakers blasted
the proposal. The hunger strike at U.C.I.
lasted 10 days and was over, according to
prison officials, on the 13th, when only 4
prisoners still were refusing food.
FDOC officials claim the new rules
are not a response to any particular incident, but that they are intended to increase security. FDOC spokesman C.J.
Drake offered another reason too - contact visits are allowed to encourage rehabilitation of prisoners. "For death row
inmates, what's the purpose?" Drake
asked. That same type logic, of course,
could be used to ban contact visits to prisoners serving life or long sentences, if the
death row ban is successful.
The FDOC's "security" justification
for the non-contact visitation is ironic
(some say moronic) considering a recent
event that occurred in Texas. On February
21 two Texas death row prisoners took,
and held a female prison guard hostage
for thirteen hours at the 'Charles Terrell
State Prison. The prisoners claimed that
desperate act was taken to protest, in part,
overly harsh visitation rules similar to
those being considered in Florida now.
The irony is that Michael Moore was a
prime' supporter of those Texas visiting
rules when he worked as a regional director in the Texas prison system six years
ago. Texas prison officials now concede
' that putting limits on prisoners' visits hasn't done much to improve security there.
In Florida, DOC spokesman Drake
said no prison guard has come fo~d to
express concern about the rules being
considered for death row. However, three
prison guards who spoke to the Tampa
Tribune on the condition that their names
not be used said they fear an increasingly
violent atmosphere if contact visits are
stopped. "If they can't hug their kids,
what else do they have to lose? What incentive do they have not trying to take my
head otr?"one guard" commented.
As for coming forward as Drake suggested, another of the guards said, "Do
they think we're going .to stand up there
and say we disagree with the secretary?

That's crazy. Nobody wants to be saddled with the worst shift available." Despite those misgivings, according to a
spokesman for Florida's governor, Jeb
Bush fully supports Moore's, plan that
would hurt death row prisOners" families
and friends and children as much, or
more than, the prisoners themselves.
An Insidious Plan
Michael Moore's plan for visitation
encompasses more than just prohibiting
contact visits for prisoners on death row much more.
For the past year Florida Prisoners'
Legal Aid Organization (FPLAO) staff
have been quietly monitoring FDOC activity concerning visitation after being
warned by some South Carolina prisoners' family members about the changes
Michael Moore had made in that state as
the correction's secretary before coming
to Florida. During February that vigilance
paid off. It was discovered that the FDOC
is planning changes to its visitation rules
in a manner that is not going to benefit
prisoners or their visitors.
Approximately six months ago, a
new section was created in the FDOC
central office called the Central Visitation
Authority (CVA) , which is assigned to
the Bureau of Classification and Central
Records office. The stated purpose of the
CVA is the "management of inmate visitation procedures, visitation records, and
fact-based decisions on visiting requests." There are 10 employees assigned
to the CVA.
Since its creation, the CVA has been
working to draft new procedures and
rules for visitation. They have also been
working to computerize all visiting and
visitor information for "identification and
tracking purposes."
On February 3, FPLAO obtained a
copy of the CVA's proposed draft of new
visiting' rules and procedures. Some of
the provisions of that draft include: .
• Prisoners cannot have more than 15
people on their approved visiting list.
• Prisoners may only delete or add to
their visiting list, up to 15 people, every
six months.
• All visitors 12 years old or older must
complete a Request For Visiting Privileges form forthe CVA's approval.

Page 3

• All visitors 12 years old or older must • Visitors will have visitation privileges
present valid picture identification when suspended for two (2) years if they pass
money or any other item to a prisoner
seeking to visit.
approved items) , or for violation
(except
.. 1
• All visitors 12 years old or older must of visiting rules.
provide their social security number to
the CVA when completing a Request For • Prisoners receiving visitation-related
Visiting Privileges form, arid the social disciplinary reports will have visitation
security number may become public re- and telephone privileges suspended for
cord as part of the FDOC's visiting re- two years'(or permanently, depending on
cords.
the seriousness of the offense)
• All visitors 12 years old or older must • Death row prisoners will only be alallow institutional staff to take digital lowed non contact visits, with the time
photographs of the visitors, which will be allowed set by the warden.
updated every four years.
• Prisoners undergoing initial reception
• All visitors 12 years old 'or older must may be denied visits.
allow biometric hand scans to verify fingerlhand prints when seeking to visit.
• Visitors not on a prisoner's approved
visiting list but who request a special visit
• All visitors, regardless of age, may be must submit to a criminal history check.
required to submit to questioning and
search procedures upon entering or leav- • Visitation may be denied prisoners who
ing a visit, refusing to answer questions are hospitalized or in an FDOC infirmary.
will be cause to terminate visiting privileges.
Although none of the above rules have
been formally adopted, some institutions'
• Visits may be denied or terminated if a have already begun enforcing selected
visitor speaks to a prisoner other than the parts of them. A new "Request For Visitone they are authorized to visit. or if a ing Privileges" form, including a requirement that the social security number be
prisoner speaks to another visitor.
provided and listing many of the above
• Only five visitors may visit at one time. provisions on the back of the form as new
rules that must be followed, has been be• Visitors may only bring $15.00 each for ing distributed to visitor applicants. And
use in the visiting park vending machines. many of the unadopted provisions have
been posted on the FDOC's website as
• Only one kiss and embrace will be al- rules that all visitors must follow. See:
lowed at the beginning and end of a visit, http://www.dc.state.fl.us/facilities/infoJ
visit
l~ting no more than "5 seconds."
As the opening shot to challenge 'the
• No other form of casual contact will be adoption of this new visitation plan, on
allowed or "displays of affection" be- April 19 Ii petition to determine the invatween prisoners and visitors, except for lid enforcement of unadopted ~Ies was
holding hands with the hands in clear filed with the Florida Division of Adminsight of the staffat all times.
istrative Hearings by FPLAO's chairperson, Teresa Bums. The petition alleges
• In addition to currently approved search that the FDOC has engaged in the impleprocedures; visitors ma~ be required to mentation of new visitation procedures
submit to K-9 and drug ion scanner that meet the legal definition of "rules"
and that modify, exceed or rewrite existsearches.
ing valid rules without having followed
• Prisoners who refuse to participate in or the legally required rulemaking proceare removed from an academic, voca- dures ofstate law.
At best, this challenge will result in
tional or substance abuse program for
negative behavior will have all visiting the FDOC being ordered to cease all enforcement and reliance on the unadopted
suspended for three months.

F.P.L.P. VOLUME 6, ISSUE 3

rules until such time as they are adopted
by valid rulemaking procedures. It is expected that the FDOC will at some point
start the rulemaking process to adopt
these provisions. When they do, and give
notice of such intent. all prisoners and
their visitors must be prepared to submit
objections to the adoption - in mass numbers. The name and address where to
send those objections will appear on the
rulemaking notices that will be posted at
all institutions.
We must be prepared to meet this challenge, or visitation conditions will I:ecome even worse than they are now. The
FPLAO staff will be prepared to fight
with the organization's members on this.
Together we can persuade Mr. Moore
that his plan might need to be changed..
Note: If you have access to any memorandums that may have been posted at
your institution concerning the implementation of any "new" visiting rules,
please send a copy to FPLAO. Also. if
you as a visitor have had to comply with
"new" visiting rules or had such enforced at the institution where you' visit,
please write to the FPUO office and
give the details. Thank you.]

A MESSAGE TO MEMBERS
I wish to personally thank all of the
organization's members for making it
possible for us to make a good showing
at the· Capitol Rotunda Rally during
April. The extra contributions .sent in by
"free world" and prisoner members allowed us to present several nice looking
displays, and distribute a ton (itseemed)
of informational fliers, reprints. reports,
manuals and books to the rallies attendees, legislators and their aides, and capitol visitors.
The organization focused on five top-

Page 4

ics this year: Negligent and Inadequate
Medical Care within the prison system;
Female Prisoners - Abuse and Privacy
issues; Visitation, and the FDOC's plan
to Alienate Fainilies and Prisoners; Close
Management Confinement, Conditions
and Negative Effects; and. for the.third
year. Prison Collect Telephone Rates.
Other groups and organizations that attended the rally covered other topics,
such as the death penaltY, juvenile justice
issues, abuse and rap.e of prisoners, the
Florida parole system, and family issues.
Everyone did a very professional job this
year.
Because there are so many FPLAO
members who were unable tQ attend the
rally, we have run several photos of the
event in this issue so members can see
what their support helped finance, and
through the photos share some of the excitement, optimism and effort contributed
by so many people to make this year's
rally the best yet.
I'd also like to extend the staff's appreciation to several members who lent a
hand in putting together some of the material that FPLAO took to the rally, including, Rob~rt Barish, James Quigley,
Oscar Hanson, Robert Edwards and William Van Poyck.
While in Tallahassee for the rally, I
was pleased to visit the FDOC's central
office to present a plaque from FPLAO to
the department's Office of Library Services. With more than half of Florida's
prisoners having below functional literacy skills and all prisoners, by definition,
having legal problems, the general and
law library programs in place at each
prison are among the most important and
beneficial programs that serve the entire
prison population. Mr. Joe Belitsky, the
FDOC's Law Library attorney, accepted
the plaque on behalf of all central office
library services staff and institutional librarians and their assistants. The award
was presented in recognition of the excellent job being done to maintain the quality of the general and law libraries around
the state. Recently, these peoples' jobs
have been made harder with Secretary
Moore cutting many of the librarian positions, and we just wish those remaining to
know that their efforts are recognized and
appreciated by all prisoners and their supporters.
On a final note; recently the newsletter staff has been receiving a few letters

F.P.L.P. VOLUME 6, ISSUE 3

from prisoners saying that they didn't receive an issue or asking the staff to let
them know that their letter was received.
If you do not receive an issue, and your
membership is in good standing, write a
short note letting us know and we will
sentt you another copy or find out what
the problem is. Occasionally we have a
problem with a mailroom, but we can
usually straighten that out. If you are on
the mailing list, however, the issues are
being mailed to you. As for responding to
the receipt of letters, we just can't do that.
We understand your concerns, but do not·
have the staff or finances to answer the 2
to 3 hundred letters being received ellch
week. I assure you though. we are not
aware of not having received any mail.
What is needed are funds to hire a full
time office person to answer mail and the
phone and do some of the many routine
jobs that any office has: But, the funds to
pay someone aren't available yet, We are
working on that. In the mean time, please
be patient with our limitations. All the
staff now are volunteers and generously
devote a lot of their time to doing everything we can at this point.
Teresa Burns
FPLAO Chairperson _

NEW PROCEDURE
DIRECTIVE FOR
ADMISSIBLE READING
MATERIAL
.
.
On Apnl 14, ~OOO, the Flor.lda Department of Corre~tlon~ (FDOC) Issued a.
new Pr~cedure Directive (No: 501.401)
conc.erntng w~at type and am?unt of
read!ng n,tatenals may be rec~lved by
Flonda pnsoners through the mall and the
p~o~edure to .be used to auth~rize or prohlblt th~ receipt of suc.h ma~enal..
ThiS new Directive, entitled
"Admissible Reading Material for Major
Institutions," provides detailed guidelines for the implementation of the
FDOC's formal rules concerning reading
materials found at Chapter 33-501.401.
Florida Administrative Code (F.A.C.)
(formerly 33-3.012, F.A.C.). This new
Directive replaces and invalidates all
individual Institutional Operating Procedures (I.O.P.s), and provides uniform
procedures to be followed by all major
institutions operated by the FDOC.

The Directive does not make any radical changes to the admissible reading material procedures that the FDOC has been
developing and applying over the last year
and a half. But the Directive does contain
some interesting, and potentially beneficial, provisions that may eliminate, or at
least reduce, some of the confusion over
what reading materials mayor may not be
received that has been exhibited by many
prison mailrooms recently. A detailed
guide is included in the Directive concerning what subject matter should or should
not be considered to determine whether
publications mayor may not be received.
The Directive indicates that the recently established regional service centers
are going to take over operating and staffing the mailrooms at major institutions.
There are also provisions in the Directive
increasing the possession limits for some
publications and providing that a listing of
all previously rejected reading materials
and a listing of all reading materials that
were approved after a rejection was overturned will be kept in every institutional
mailroom and in a location accessible to
prisoners.
All Florida prisoners who receive any
type of reading material through the mail .
'

Page 5

or who possess reading materials, should
review and familiarize themselves with
this new Directive. Access to the Direetive should be available- from every institution's law library..

CAMPAIGN 2000
ON THE INSIDE
by Drew Hanson
As a prisoner within America's penal
industry, Campaign 2000 may not appear
to be an important issue to us, especially
when other more important matters such
as conditions of confinement and early
release mechanisms demand oUr attention.
But you may wish to reconsider your priorities.
Although as prisoners we cannot vote
in the general election, we are not without
a voice. Most of the 73,000 + prisoners
within the DOC have family and friends
who are qualified to vote. They cannot
only vote for themselves but for us too.
For the politically ·challenged, you
may wonder where I am going with this.
For the politically wise, it is obvious. The
balance of our nation's high court is at
stake. For those prisoners who litigate,
this balance is critical.
Usually the Supreme Court is not a
political issue for presidential candidates
on the campaign trail. However, this cam-

F.P.L.P. VOLUME 6, ISSUE 3

paign shows signs of a hotly contested
battle brewing regarding the future of the
high court.
The high court's balance of power
. currently held by conservative members Chief Justice William Rehnquist and Justices Antonio Scalia and Clarence Thomas - usually vote together on social
and political issues such as state's
rights and prisoner s rights. These Justices are often joined by more centrist
conservatives Sandra Day O'Conner
and Anthony Kennedy.
The more liberal Justices - John Paul
Stevens, David Souter, Ruth Bader
Ginsburg and Steven Breyer - usually
band together to dissent. Change the
balance by just one vote and the Court
suddenly becomes more liberal, or in a
worst-case scenario, much more conservative.
The tenuous balance of power
may soon change. The 5-4. split that has
defined the Court in recent years could be
altered with the replacement of a single
justice. Because of the aging Court, it is
likely that one or more justices will retire
in the next four years.
That means that our next president
will have the rare opportunity to sharply
tip the Court's scales to the conservative
right or; the liberal left, for the next several decades.
For example, if AI Gore is
elected his appointee's votes could reverse the trend of Rehnquist 's stronghold
on social and political issues, which include prisoner related issues. It is well
known that Rehnquist is not a friend of
.the prisoner and often goes out of his way
to rule against prisoner related issues.
On the other hand, if George W.
Bush wins and has the opportunity to reo.
place a Tetiring liberal his (presumably
conservative) appointee would help further the trend of the high court on the side
of conservatism.
Inside information has produced a
list of potential nominees to the high
court. In the Gore dossier, the names Jose
Cabranes, Walter Dellinger, Merrick Garland, and David Tatel emerge.
Each of these potential nominees brings
to the table favorable characteristics. It is
important to note that at least one of
Gore's potential nominees was a civilrights lawyer and currently sits on the
bench.
In the Bush dossier, the names Emilio

Garza, Samuel Alita, Edith Jones, and Michael Luttig emerge as potential nominees.
Of these potential nominees, all share a
common conservative .position. Edith
Jones is perhaps the most dangerous with
her hard-line position in death penalty
cases. Upon looking at each of the potential nominees from the Bush dossier, it
becomes clear that prisoners will lose even
more ground with a Bush win.
Throughout the Rehnquist years, many
of the prisoner rights, fought for by previous reformers, have been eroded by the

* ATTENTION FLORIDA
PRISONERS *
Have you ·ever requested live witness
testimony at a disciplinary hearing but was
denied by correctional officials? If so, we
want to hear from you. Please complete a
sworn affidavit and include any paperwork
you may have that shows you made a request for live testimony. Include a list of
the witnesses you requested for live testimany and how their live testimony was
relevant. Make sure your affidavit includes
your name, DC number, prison location
(where you were denied live testimony),
your current location, what official(s) denied your request for live testimony, and
the approximate date of the denial. Send
your affidavits and any other paperwork
you may have to:
L.E. Hanson
P.O. Box 5693
Hudson. FL 34674
If you are sending additional papers
other than your affidavit you may wish to
send copies because these papers will not
be returned.

--;=============:-Web Page Address:
http://members.ooLcomlfplplfplp.html
E·moll Address:· fplp@aol.com
Tetephone: (407) 568-0200

Page 6

I

conservative bench.
Whether or 'not you care about your
cUrrent state of affairs within the DOC,
lets band. together (once again) and do
something Positive. Lets encourage our
family and friends to take a political position and vote for a position that could
change our future.
As the legal scholar Alexander Bickel
once wrote, "You shoot an arrow into a
far-distant future when you appoint a Justice." Let's shoot the arrow in the
"correct" direction.
Did you notice that 1 did not say "right"

•

FORMER SUPREME COURT
JUSTICE CLAIMS
INNOCENT MEN EXECUTED
IN FLORIDA
Since 1972, Florida has had to release 20 people from its death row after
evidence was found that they were innocent, or had been convicted because of
prosecutorial misconduct or serious judicial errors. That is more than any other
state. In February, fonner Florida Supreme Court Justice Gemld Kogan repeated what he has been saying since he
retired in Dec. 1998 - that he believes
innocent people have been executed in
Florida.
Kogan, wHo served on Florida's
highest court from 1986 until Dec. 1998;
made his latest charge of Florida executing iMocent people at a news conference
in Washington, D.C., where he was pushing for new legislation that would require
DNA testing that could exonemte some
of those sentenced to death.
Florida's governor, Jeb Bush, responded to Kogan's latest call for closer
scrutiny of death penalty cases by chal-

F.P.L.P. VOLUME 6, ISSUE 3

lenging Kogan to "identifY the names of
the individuals you believe were wrongfully executed." Kogan, a fonner Miami
prosecutor, responded to Bush saying:
No, "I'm not going to name names. I'm
not goirig to get into a war of words with
the governor's office on these cases." Kogan said that instead of interrogating him,
Florida officials should be trying to ensure that convicted prisoners have access
to DNA evidence when they claim innocence in death penalty cases.
.
"If the governor's office was really
interested in this, what they would do is
start looking to the 84 cases nationwide·
where people have been released from
death row because of DNA evidence,"
commented Kogan. "It makes logical
sense to say that if 84 people were set
free, then' how many innocent people
were executed prior to DNA evidence
coming to the forefront?"
The questions about wrongful executions have heated up recently after a decision earlier this year by Illinois Goy.
George Ryan to put a momtorium on executions in that state. Ryan, a Republican
and death penalty supporter, took that action following seveml high profile releases of death row prisoners in his state
after DNA evidence eliminated them from
being guilty.
In Florida, some prosecutors have
resisted such testing, pointing to a twoyear time limit on introducing new evidence as a bar to such tests. And the
state's Republican lawmakers, working
with Gov. Bush, convened a special session in January to pass the Death Penalty
Refonn Act of 2000, legislation designed
to speed up executions by limiting the
appeal process. Some death penalty opponents claim that legislation is guamnteed
to result in the execution of innocent people in Florida where it has taken an average of seven years for those who have
been released from death row to have
proven their innocence. The Florida Supreme Court heard arguments in March
on a challenge to the new law brought by
death row attorneys who claim the la\;V is
unconstitutional. During April, the Fla.
Supreme Court found that new law unconstitutional, but now legislators are trying to get a constitutional amendment to
override the Supreme Court's decision.
In February U.S. Senator Patrick
Leahy (D), of Vennont, introduced a bill
in the U.S. Senate that would require

preservation of biological evidence, make
DNA testing available to fedeml and state
prisoners, and set national standards to
ensure competent legal representation for
indigent defendants accused of capital
crimes.
A similar bill, entitled the Innocence Pro~ection Act, was filed in the U.
S. House of Representatives during late
March.
"These problems are being recognized all over the country," Kogan
said, "but Florida is just putting up a
stone waiL" •

OUTSIDE IN
by G. E. Russell
The· Florida Prison Action Network Project 2000 in Tallahassee once
again was held in the Capitol Rotunda.
Men and women in business suits hurried
paSt with the requisite cell phones pressed
to their ears. Some stopped to read the
infonnation, but most hurried past the ten
tables with exhibits and handouts presented by the FPAN groups that were in
attendance. We were disappointed in the
turnout as we expected to see more family members this year than last. Fortunately, the groups representing prisoner
families, friends, advocates were there in

Page 7

Advocacy Group (FDRAG) and held a
press conference highlighting their concerns.
Representatives Trovillion and
Heyman, along with Janice Figuero, Jacquelynne Perry and other FDRAG memFamilies with Loved Ones' in bers spoke against the change. . We've
Prison (FLIP), and Florida Prison Legal heard from several folks that a few moPerspectives (FPLP), the organizations ments of the press conference were seen on
that created the FPAN network focused. news programs throughout the state.
on family visitation, legislative advoWe tIlank Florida Legal Services,
cacy, and brutality inside the prison
walls. An award was presented to Glen Inc., and Florida Institutional Legal SerM. Boecher, who could not be present vices, Inc., for their financial support
due to scheduling conflicts. Nadine (equipment and postage), as well as Shirley
Anderson and Teresa Bums explained Spuhler's invaluable assistance so that this
that this Award of Merit was given in year's FPAN Capitol Rotunda project
gratitude and appreciation of Mr. would be a success. We have already
Boecher's strong support and encourage- started to plan next year's event in the
ment of the efforts of FPAN, FLIP, hope that, with renewed energy and re- .
FPLP, and other activist groups while he. solve, we will be in a position to coordiwas the Executive Director of Florida nate car pooling, housing, buses, and other
Institutional Legal Services, Inc. The practical considerations that will enable
Freedom Project was very wefl repre- more people to attend the event and make
sented by the advocates of parole reform. an impression on our legislators.
who came from all over the state to meet
with each other and their legislators.
We would like to remind folks
Bernie DeCastro spoke on behalf of the that the session isn't over yet! We recomPRISON LEGAL NEWS
project and provided statistics, which mend that you make your voices heard resupport the economic benefits to the pub- garding the pending rule changes in visita- "Perhaps the most detailed journal
describing the development of prison law is
lic as well as the families of this parole- tion at all institutions, the bill designed to Prison Legal News." -. Marti Hiken,
eligible population.
The Battered take away the independence of both the Director Prison Law Project of the
Woman Clemency Project (BWCP) was Correctional Medical Authority and the National Lawyers Guild.
present and founder Jim Dunn described Florida Corrections Commission, the BatPLN is a 24 page, monthly magazine,
the bill, which is now searching for an tered Woman Clemency Committee bill, published since 1990, edited by Washington
amendment sponsor in the Florida Sen- the FAIR-SlRA Stop Prison and Jail Rape state prisoners Paul Wright and Dan Pens.
ate. The bill regarding prison and jail Bill, along with other issues of equal im- Each issue is packed with summaries and
rape has been well received by the legis- portance. to prisoner families, their loved. analysis of recent court rulings dealing with
lature this year, so it looks as though all ones, and justice advocates everywhere. prison rights, wrillen from a prisoner
perspective. Also included in each issue are
of the hard work done by Cassandra We will be starting an email alert system news articles dealing with prison·related
Collins, founder ofFAIR-SlRA, over the (it's fast, and it's free), sometime in the struggle and activism from the U.S. and
past few years, will have a positive result summer, so please send us your email ad- around the world.
this year. In response to the recent re- dress sometime in July so that we can keep
, Annual subscription rates are SIS for
strictions on visits (non-contact) to pris- you informed. Our e-mail address is: prisoners. If you can't afford to send SIS at
oners on death row, family members and gayle@afn.net One of the memories this once, send atleast S7.S0 and we will pro-rate
friends fonned the Florida Death Row reporter has of that day is watching five your subscription at $1.25 per issue. Please
beefy-looking men in suits walking shoul- send no less than S7.50 per donation. New
U.S. postage stamps may be used as
der to shoulder past the FPAN exhibits, (Unused)
payment.
which they glanced at with contempt.
. For non·incarcerated individuals, the
They all were wearing their Police Be- subscription rate is $25/yr. Institutional
nevolent Society (PBA) pins, clearly on subscriptions
(for attorneys, libraries,
their way to lobby legislators on behalf of government agencies, non-governmental
their union, which has as some of its mem- organizations, etc.) are S60/yr..Sample
bers the state's correctional officers. Were copies are available for $I. Contact:
you or your loved ones up there wearing
Prison Legal News
the blue FLIP ribbon and the yellow
PMB 148
BWCP ,ribbon on the way to see your leg2400 N.W. 80th SL
islators? Let's get busy people, there's a
Seanle WA9S117
lot to be done, and you can and will make a
difference! •
increased numbers. Some legislative
aides told us that they have been hearing
from more family members this year, so
it appears the message is getting through.

F.P.L.P. VOLUME 6, ISSUE 3

Page 8

Dear FPLP Sound Off, I got a message here, to all prisoners, across the USA. As we know, conditions are being inflicted by an unsympathetic public. But I should think some are disserving, let us do this, why don't you people start
letting it be known that doing such things like filing frivolous lawsuits just to harass prison guards and the courts,
burning pen pals are unacceptable. Start acting like people who are entitled to the public's sympathy! Start showing
that we have some self-respect, stop.your petty animosities for each other. Wake up people! Before we get what Justice Clarence Thomas said "sedated and locked in a cell 24 hours a day" that's what he thinks is to be the answer. RE
FSP
Dear Friends, Enclosed please find US stamps for my one year sub to FPLP. I had been reading a friends, but now it
seems that if your caught with another inmates mail, it becomes contraband. So I will spring for my own so neither
gets taken. I've been down 26 years straight and I've never read anything as informative as FPLP. Seems that even
though I don't have a prior record, and I'm ten years DR free, with only seven in 26 years the Parole Commission'
seems to think I should spend the rest of my life in prison, and I've sure seen a lot of changes in the FDOC over the
years. The FPLP keeps me up to date on a lot of things going on. I know the FDOC closed River Junction but were'
there any other prisons closed because of the budget cry? Thanks for a great paper I look forward to my Own fust
copy. God Bless you all. S ACI
Dear Perspectives, After repeated communication with the Florida Corrections Committee and also Jeb Bush they
both responded positively to my letters requesting the reactivation of weekly visits in lieu of bi-weekly ones at Everglades CI this past month, praise God and them it's happening. Course with change new problems but time hopefully
will work those out.
.
,

Dear FPLP, I would like to thank you for the job weli done. I'm pleased to know we (prisoners) have someone as
FPLP helping us on the inside. I myself have a mental health problem with depression and am receiving help as we
speak. But your so right about FDOC personnel not helping my cause, each and every day I have to deal with officers
pushing me trying to make me mad. In their eyes we're all the same, just a number. Again, I thank you very much for
your help. In your past booklet you said a rule was added to improve the visitation for familys well, they haven't done
anything here, it seems to get worse. HH
Dear Sound Off, I am writing to express my thoughts on this latest move by DOC. I am a mentally ill inmate and I
recently returned here from CMHI. I cannot believe that DOC is closing down CMHI and shipping all those inmates
to lCI. IT seems that DOC and HRS have switched possession of CMHI a few times already, between 1984 and present. lCI can't possibly handle the severely mentally ill that are currently at CMHI. Many of those there are very suicidal and self-injuring. Use of force and restraints are a part of a daily routine there. Being a patient there myself, I
can say that the staff there did not abuse the inmates while using force or restraints. Each unit has its own treatment
team and doctors who work solely with the inmates assigned to that particular unit. So each inmate receives more
personal time by his doctors, therapists, etc.. Why lCI? That's the facility where an mv positive man was beaten,
harassed, then shipped off to CCI, where he died from cutting his wrist after more beatings. Nine officers were indicted for that! Hangings in JCI, murder in Starke, critical reports by so many agencies concerning negligent treatment by qualified professionals, inadequate treatment .by unqualified (but DOC hired them anyway) professionals,
administering mind altering drugs with out consent or correct information, brutalization. The list goes on and on.
How can Governor Bush, DOC or anyone else allow this to be approved? DOC is already under many investigations
for mental health deficiencies and abuses, yet they make a move that will be putting 90 people's lives at stake? Are
they (DOC) crazy or just plain stupid? Or is this Florida's answer to stop crime and ease overcrowding by killing
those incarcerated or making them so miserable that they kill themselves? Seems to me that Florida's sending the
message to all that it's okay to abuse anyone who doesn't bave the power or resources to stop it. And they wonder
why today's youth are so violent and rowdy. 90% of these youngsters are the children of the inmates who are abused

F.P.L.P. VOLUME 6, ISSUE 3

Page 9

by DOC. So if DOC and other authorities say they find no wrong doings by the conduct complained of how can they
expect kids to be any thing less than what they're showing it's okay to do? If you condone brutalization on one level,
you can't protest it on another now can you? ew BeJ
Dear Staff,l want to thank FPLP for the continued effort made to assist and keep prisoners informed. The reward is
small for such a monumental task. The editorial by Mr. Posey (SeptJOct99) was enlightening. However, it is my personal opinion, that he was too reluctant in writing the real truth about certain FDOe officials. Although, I can understand his position. The part about the 'Plantation' mentality was on target, but it will continue due to inmate jealousy
and greed. It is sad that inmates are more treacherous than the guards. Hopefully, FPLP will find some (more) time
on proper medical care. I know medical care for inmates is hard to obtain from a vet!! Also, maybe you could do an
exposure on the excessive salaries being provided by the inmate welfare trust fund. There is plenty 'Pork' there. Anyway, re up my subscription, and watch out for a 'Judas' You know the FDOe would love to have the FPLP staffon Qwing with the camera off- Cheers to All.
Greetings from the Taylor Co•. area. I write to you in reference to the use offorce utilized in the FDOC. You are certainly aware
ofall the heat, which has come down on Michael Moore and the Dept. concerning the use afforce. Well, "hold your breath". Recently, a three-minute video was played in our elm unit concerning the use offorce. Quiet naturally, once again, Moore has taken
a measure to try to justify his staff in their brutal uses of force. He explains all the "reasons" force can be used - none different
from before. I've been to six-c/m institutions in which the use of force policy has been, We use force when we want how we want
wh!=re we want and to any degree we want. Basically, that's exactly what Moore says in the video only in terms attempting to
disguise the truth. I'm sure you will hear more about the video. The use offorce should not be the concern, but the fact that it's
being "abused" by the staff of the Dept., (emphasize abused) and covered up by an ink pen of some lying big wheel with a little
authority and enough pull to be able to cover up the abuse and be backed up by Moore. What a system. In conclusion I want t a
compliment all of you on the dedication you all put into the FPLP it's an awesome publication for reference and keeps those who
want to posted on what's happening around the state in these "Warehouse's for lab rat's". That's just what they think we are. LH
TCI
Dear FPLP, I have se~n you article on Wackenhut South Bay in which I have been here for over 2 years and have seen a whole
lot of cover ups, it's a wonder SB doesn't have more suits than what they do now, from medical on up. I have a few issues to
bring to light to our readers and to my fellow inmates. This is one place not to be stuck at. For one the visiting park the way officers (women) treat the visitors, by putting there hands where they are not suppose to have them. The visiting park is out of control by the officers. The classification is another joke here also, they never answer informal grievances, which is nothing new. JP
SBCI
.
Dear FPLP, Recently the prison where I am housed has implemented a memo restricting smoking inside all department buildings
being an advocate for those who profess to second hand smoke being detrimental to non-smokers health. it is a noble cause to
.
show concern for offenders as the legislator and governmental medical personnefhas shown concern for society's health regarding smoking, but instead ofdwelling on a single subject health issue the department needs to focus on major concerns across the
board ofprisoners health as does our society. There are several areas ofheaIth related issues in which prisoners receive sub human treatment, which contradicts the great up rising issue of health via smoking. The departments utilize a menu run which consist of seventy-five percent carbohydrate, lack ofany vitamin quality needed for a well-balanced meal. Knowing the basic fundamental needs of man's existence, which is elementary, food, clothing and shelter. Medical care; conditions which are chronic in
nature are not recognized as such requiring offenders to thread through the red tape of"sick call" and apathy to get to a physician.
Those are selective per the department and given doctors recommendation the institution decides if that particular treatment is
necessary. Issuing their interpretation for what was recommended. Medical care could be administered quickly, effectively and
less costly if the institution would employ adequate amount of health care providers, attend to the problem in an expeditious fashion instead ofdelaying treatment until it becomes overwhelming and employ procedure and treatment as required because prisoners who are to be in the custody of the department for any length oftime will be less ofa problem iftreatment is provided immediately instead ofdelay and the need multiplying thus the cost does the same. Multiply. PW DCI

F.P.L.P. VOLUME

~,

ISSUE 3

Page 10

@J.§)Nm~II.B ~• •
_

<

Gain Time Game Continues
DOC 2573 - Prisoner 0
The Florida Supreme Court has
ro\ed against Florida prisoner James
Eldridge in the state's latest gain time
game.
Eldridge petitioned the high court
for habeas relief based on the DOC's
forfeiture of 2573 days of earned gain
time following a revocation of probation.
Eldridge initially entered the DOC
with a true split sentence totaling
twelve years in prison followed by
three years probation for offenses that
occurred in 1990.
Eldridge served 1807 days
(approximately five years) in the DOC
and earned 2573 days (approximately
seven years) of gain time. Eldridge essentially satisfied the twelve-year sentence and was released to begin service
of his probation in 1995.
Unfortunately, Eldridge violated
the terms of his probation and at the
revocation hearing he was resentenced
to a new sentence of fifteen years with
credit for all unforfeited gain time. The
Court later reduced the sentence to five
years in prison.
As a result of the revocation of
probation, the DOC forfeited 764 days
of Eldridge's earned gain time. Not satisfied with that number, the DOC imposed a second forfeiture totaling 2573
days of earned gain time.
Because the 2573 days exceeded
the five year sentence imposed by the
Court, the DOC added the remaining
days to the back of Eldridge's sentence.
The DOC reasoned that it had to employ this procedure to recoup the total
forfeiture penalty imposed on Eldridge.
So, instead of 1825 days (minus
applicable future gain time awards)
needed to be served on the new sentence, Eldridge must now serve 4398
days (minus applicable future gain time
awards). In other words, Eldridge's
sentence went from five years to twelve
years at the stroke of a keyboard - a
DOC keyboard.

F.P.L.P. VOLUME 6, ISSUE 3

tiy I'~.an :MGl0f.S' andI1~~~!1~ ~l;taIilSC!)II), "

The Supreme Court rejected Eldridge's argument and applied, with approval, the Fifth District Court of Appeal's decision in Singletary v.
Whittaker, 739 So.2d 1183 (Fla. 5th
DCA 1999).
In Whittaker, the Fifth District. in a
superseded opinion, held that the retention of gain time is statutorily conditional
upon satisfactory behavior both while in
prison and while on probation. As such,
the DOC may forfeit all gairi time, regardless of whether the trial court had
decided not to do so.
The Court further reasoned that the
Legislature had provided for the award
in the fIrst place and had made the retention of that gain time conditional upon
the satisfactory completion of the prisoner's supervision. See section 944. 28
(I), Fla. Stat. (1989-1999).
The Court stated that when a prisoner fails to satisfactorily complete his
supervision and it is revoked, the DOC,
as part of the executive branch, merely
execut,es or fulfills the legisla~ive mandate that the previously awarded gain
time be forfeited; thus the prisoner must
serve out his prior incarceration as a penalty for the revocation of probation. In
reaching this decision, the Court concluded that upon resentencing in either a
probationary split sentence or a true split
sentence, regardless' of whether the trial
court resentenced the prisoner to a lesser
sentence, the .DOC's statutory authority
to forfeit all gain time upon a revocation
of probation should not be lessened.
In other words, the actual length of the
new sentence imposed after probation 1'Cvocation is irrelevant to any forfeiture penalty exacted from the gain time. awarded during the
prior incarceration. See: Eldridge v. Moore,
25 Fla. t. Weekly S269 (April 13, 2000).
[Comment: Aside from my position as a
staff writer for FPLP, I had the. benefit of
assisting James Eldridge with this matter
while assigned as a law clerk at Madison C.I.
While obviously disappointed with the
Coun's decision, I am more disappointed that
the Court tacitly approved of the ,DOC's pmctice of multiple forfeitures based on a single
revocation of probation.

'

'

Prior to the initiation of the petition to the
Supreme Court. the DOC had exercised its authority to forfeit 764 days of Eldridge's earned
gain time. Once the DOC realized that Eldridge
was challenging their authority, the DOC imposed a second forfeiture taking every single
day Eldridge earned, 2573 days. It is my personal opinion that the second forfeiture was
purely punitive. Nevertheless, the' DOC does
not have the statutoI)' authority to apply a sec.
ond forfeiture based upon the plain reading of
the statute.
Section 944.28(1) states, that the department "may, without notice or hearing, declare a
forfeiture of all gain time earned...." As used
in context with the statute, the indefinite article
"a" precedes the noun "forfeiture".
.
Applying the rules of statutory construction, words not defmed in the statute can be
defmed by use of a common dictionary. Webster's n New College Dictionary (1995) defines
"a" as an indefinite article that is used before
nouns and noun phrases that denote a single, but
unspecified thing; in this case, a single forfeiture.
Again, using the rules of statutoI)' con·
struction it becomes manifestly apparent that
the DOC can impose only a single forfeiture. In
other words, once the DOC imposes a penalty
to forfeit earned gain time and adjusts the prisoner s tentative release date (which moves according to the applicable awards of gain time),
the DOC is precluded from imposing a second
forfeiture based on the single revocation ofprobation.
Another point worth mentioning is that the
Court stated in their opinion that the DOC,
when forfeiting gain time, merely ex~tes or
fulfills the legislative mandate that the previously awarded gain time be forfeited. This assertion is erroneous. The statute does not mandate that a forfeiture occur, it merely grants the
DOC discretion to forfeit gain time. This contention is supponed by the auxiliary verb
"may" (as in "may" declare a forfeiture of all
gain time).
Hopefully we have not seen the last of this
case. A rehearing will undoubtedly be requested. Stay tuned for future developments. ob)
Civil Restitution Lien
And Crime Victims' Remedy
Act Does Not Violate
Ex Post Facto Prohibition
Florida. prisoner Ollie James Goad, who has
been incarcerated within the Department of
Corrections since February 1991, initiated a

Page 11

----------------civil action against the DOC in 1995. The action stemmed from injuries he received when
another inmate attacked him.
In response to this action, the DOC filed
a motion for summary judgment and a coun·
terclaim under sections 960.293 and 960.297,
Florida StatuJ~1 (Supp. 1994) to recover the
costs ofGoad's incarceration.
Section 960.293 provides that a defendant
who is incarcerated for an offense that is neither a capital offense nor a life felony offense
is liable to the state in the amount of $50 per
day for the costs of incarceration. By the terms
of section 960.297, the state may recover these
costs for the portion of the offenders remaining sentence after July I, 1994. the effective
date ofthe law.
The trial court granted the DOC's motion
for summary judgment on the cause of action,
and Goad then filed a motion for judgment on
the pleadings as to the counterclaim. He argued that the application of section 960.297
would violate the ex post facto clauses of the
state and federal constitutions, because the
statute was not in effect at the time he committed the criminal, offenses resulting in his
incarceration.
The trial court agreed and held that section 960.297 could not be applied retroactively. The DOC appealed.
Sections 960.293 and 960.297 are part of
the Civil Restitution Lien,and Crime Victims'
Remedy Act. The Act has already withstood
due process and equal protection challenges.
See) llkanic v. City 0/ Fort Lauderdale, 705
So. 2d 1371 (Fla. 1998).
The First District Court of Appeal held
that the prohibition against eX post facto laws
of both the United States and the state of florida Constitutions couldn't be applied to acivil
statute that is entirely remedial. The DCA reasoned that a law is not punitive merely because it can be applied in the context of a
criminal case. The DCA relied on United
States Supreme Court precedent that held the
constitutional prohibition against ex post facto
Jaws pertain exclusively to penal statutes,
Kansas v. Hendricks 521 U.S. 346 (1997).
The DCA in an effort to align its decision
with Supreme Court precedent, attempted to
establish a line of demarcation between civil
law and criminal law..
In the end, the First District Court Appeal concluded that sections 960.293 and
960.297 Florida Statutes afford civil remedies
that are not the equivalent of criminal punishmenl Therefore, these statutes can be applied
retroactively without violating the constitutional prohibition against ex post facto Jaws,
Department o/Corrections v. Goad, 25 Fla. L.
Weekly 0682 (Fla. 1st DCA 2000).
[Comment: It is important to note that the
Fourth District Court of Appeal has decided
that the Civil Restitution Lien and Crime Victims' Remedy Act cannot be applied retroac-

0'

F.P.L.P. VOLUME 6, ISSUE 3

tively. See: Gary v. State, 669 So. 2d 1087
(Fla. 4th DCA 1996). It is logical to reason
that the Second District Court of Appeal has
also suggested that the Act cannot be applied
retroactively by its decision in Alberts v. State,
711 So.2d 635 (pIa. 2d DCA 1998). The First
District Court recognized this conflict and certified the conflict to the Florida Supreme
Court.-oh]
Mandamus Does Not Lie To
Regulate A GenerarCourse OrConduct For
An Indefinite
Period Of Time.

Florida prisoner Francis Stone, who happens to be a charter member of the Hells Angels Motorcycle Club, sought mandamus relief
directed to officials at Avon Park Correctional
Institution.
Family and friends of Stone were sending
letters, cards, and pictures adorned with the
Hells Angels logo. Avon Park's Warden au·
thorized mailroom staff to return the mail to
senders.
Stone exhausted administrative remedies
in an attempt to overturn the Warden's Instructions. Relief was denied because officials determined that the Hells Angels posed a threat
to Avon Park's security.
In the mandamus action, Stone requested
the trial court to order Avon Park to deliver his
mail containing the Hells Angels logo. The
trial court denied his petition and the District
Court ofAppeal affirmed on appeal.
The DCA reasoned that Florida law .is
well settled that mandamus is not appropriate
to control or regulate a general course of conduct for an unspecified period of time. See,
Town of Manalapan v. Rechler, 674 So.2d
789, 790 (Fla. 4th DCA 1996).
Because Stone's petition soughtlo regulate a general course of conduct for an indefinite period of tilJ1e, i.e. to direct officials to
deliver future correspondence adorned with
the Hells Angels logo, the DCA affirmed the
trial court's finding that mandamus was not
the proper remedy. Stone v. Ward, 25 Fla. L.
Weekly D536 (Fla. 2d DCA 2000).

"~-

tual dispute in order to reach a decision.
The DCA reasoned that because Beamon's
petition was untimely, Florida law does not
authorize district courts to grant belated appellate review in proceedings that are civil in
nature.
However, Beamon was not without rem·
edy. The DCA informed the prisoner that he
could petition the trial court for relief pursuant
to Florida Rules of Civil Procedure 1.540,
citing: Powell v. Florida Department of CorrectiollS, 727 So.2d 1103 (Fla. 1st DCA
1999); Beamon v. FDOC, 25 Fla. L. Weekly
0537 (Fla. 1st DCA 2000).

.DCA Quashes Circuit Court Determination
That Petitioner's Petition Was Frivolous
The First District Court of Appeal concluded that the circuit court did not depart
from the essential requirements of law when it
denied a prisoner's petition for mandamus
relief.
However, the, DCA quashed a portion of
the circuit court's order that determined the
petition to be frivolous and subjected the prisoner to disciplinary action.
The DCA did not agree with the circuit
court's finding that the claim was so facially
devoid of merit as to be frivolous, citing:
Jones v. Johnson, 738· So,2d 530 (Fla. 1st
DCA 1999); Hay v, Moore, 728 So.2d 806
(Fla. Ist DCA 1999).
See: Jones v. Decker, 25 Fla. L. Weekly 0547
(Fla. Ist DCA 2000).
Qualified Immunity Is Not Available To
Prison Officials Who unnecessarily Censor
and Prevent A Prisoner's Letter From Be-Ing Mailed.

Florida prisoner Mark Osterback filed a
civil rights complaint against multiple defendants at two correctional institutions.
The complaint alleged that personal letters
to a former prisoner were confiscated by mailroom personnel at Gulf Correctional Institution and that he was issued two disciplinary
reports for comments made in the letters.
The DRs charged that Osterback was disre·
Untimely Petition For Certiorari
spectful to officials by the words expressed in
Review, If Involuntary, Is Not
the letters. Osterback was found guilty by the Without Remedial Reller,
disciplinary hearing team' and was punished
with the loss of gain-time and disciplinary
Florida prisoner Larry Beamon petitioned· confinement.
the First District Court of Appeal for certiorari
Osterback was transferred to Washington
review of an order denying his petition for Correctional Institution where he initiated an
relief, in which he challenged a disciplinary appeal to the Warden for relief. The appeals
proceeding. Unfortunately, Beamon's petition were denied at the institutional level but rewas untimely.
versed by the Secretary's office.
In response to an or4er to show cause, BeaUpon discovery of the reversals, the warmon alleged that the delay in filing was the den at Gulf C.I. directed that a DR be rewritinability to obtain timely notary services. Al- ten for Osterback's statements made in the
though the DOC contested this assertion, the first letter. Howeve.... the new DR charged a
DCA found it unnecessary to resolve this fac- different violation that the one originally

Page 12

charged.
At the subsequent disciplinary hearing,
held at Washington C.I., Osterbackwas found
guilty as charged and sentenced to a loss of
gain-time and disciplinary confinement.
Osterback again appealed, but was denied at the institutional level. And as before,
thl; Secretary overturned the conviction.
, As a resalt of this chain of events, Osterback argued that the consequences· of his receiving unwarranted DRs included being
transferred from GulfC.I., to Washington C.I.;
being qualified for review for placement on
Close Management status and being assigned
to such status for seventeen months; having to
serve a "significant portion of his disciplinary
confinement sentences; being exposed to noxious fumes and unsanitary conditions at the
institutions to which he was transferred; suffering severe physical and mental problems;
and being prevented from earning gain-time
credits."
Osterback argued that these actions violated his rights under the First Amendment
and sought as relief compensatory and punitive damages.
'
The defendants responded to the complaint by asserting that Osterback's rights
were not violated. Further, they argued that
Osterback could not show a liberty interest in
the time he was required to spend in confinement. In addition, Osterback was not assigned
to Close Management status as a result of the
DR, but rather because of his past record of 18
disciplinary infractions.
And finally, the defendants asserted that
they were entitled to Qualified Immunity and
Eleventh Amendment (Sovereign) Immunity.
After an exchange in legal theories and
positions between Osterback and the defendanl§, the Court issued a lengthy opinion and
legal analysis of the issues before it
With respect to. the defendant's contention that they were entitled to Elevcnth
Amendment immunity, the Court recognized
that none of the defendant's were being sued
in their official capacity. Therefore, they were
not entitled to Eleventh Amendmentimmunity.
The Court further opined that none of
the defendants were entitled to Qualified Immunity with respect to their conduct in preventing Osterbac'k from mailing his letters, and
punishing him for the contents of his letters.
Because no genuine issue of material
fact remained with respect to Defendant's liability in their individual capacities, the Court
determined that summary judgment in favor of
Osterback was equitable.
The Court adopted the Magistrate
Judge's Report and Recommendation that
granted Osterback summary judgment, but
denied compensatory and punitive damages
because he could not show more than de minimis (trifling) physical injury.
'
The Court did award nominal damages of

F.P.L.P. VOLUME 6" ISSUE 3

$1.00. Osterback v. Ingram, 13 Fla. L. (Fed.)
Weekly (D)133 (U.S. Dist. Ct., Jan. 12,2000).
1995 ~entencing Guidelines
Struck Down as Unconstitutional
(Sample Pleading)

On February 17, 2000, the Florida Supreme Court entered its decision in Heggs v.
State, 25 FLW 5317 (Fla. 2-17-00), striking
down Chapter 95-184 for violating the single
subject rule ofthe Florida Constitution.
In entering its decision, the Court refused
to resolve the conflict between the district
courts as to who actually has standing to chalhinge their sentence based on the date of their
offense. The Second and Third DCA's have
expressly held that individuals whose offenses
werl; committed between October I, 1995, and
May 24, 1997, could have standing, see Heggs
v. State, 718 So.2d 263 (Fla. 2d DCA 1998),
and Diaz v. State, 25 FLW P3 I8 (Fla. 3d DCA
3-1-00); however, in Bartel v. State, 743 So.2d
595 (Fla. 4th DCA 1999), the Fourth DCA held
that the window is from October I, 1995, to
October I, 1996..
The Supreme Court did agree with the Second DCA's finding that "the window period for
challenging chapter 95-184 on single subject
rule grounds opened on October I, 1995....
[for] persons such as Heggs who claim their
guidelines are invalid due to the changes in the
guidelines...." Id., citing Heggs, 718 So.2d at
264 n.l. However, the Supreme Court also
noted that, "depending on which section of
chapter 95-184 impacts the person challenging
that chapter law on single subject rule grounds,
the applicable window period could open on
June 8, 1995, or on October I, 1995." Id. at
SI40 n.3. The closing of the "window period,"
either October I, 1996, or May 24, 1997, is
unsettled, but the question has been certified.
Because of the large number of prisoners
effected by the Heggs decision, FPLP offers
the following "sample pleading" to assist those
who find they have standing to challenge their
sentence as being illegal:
MOTION TO CORRECT ILLEGAL
SENTENCE
The Defendant,
, pursuant
to Florida Rule of Criminal Procedure 3.800(a),
respectfully moves this Honorable Court for
entry of an order correcting the illegaLsentence
in this cause, and as grounds therefore would
show:
I. On (DATE) , this Court sentenced the
Defendant to a _ _ month prison term for a
felony offense that occurred on .(DATE) , in
_--::-:::. County, Florida.
2. The record reflects that, in imposing
the sentence, this Court utilized the 1995 version of the sentencing guidelines tliat had been
enacted by the legislature in chapter 95-184.
3. On February 17, 2000, the Florida
Supreme Court entered its decision in Heggs v,
State, 25 Fla. L. Weekly S3 I7 (Fla. February

17, 2000), striking down chapter 95-184 as
unconstitutional because it violated the single
subjectru'le contained in Article III Section 6
of the Florida Constitution.
4. Utilizing the 1995 guidelines, Defendant's guidelines were calculated as being
months to
months; however,
under the 1994 sentencing guidelines the Defendant's sentencing range would be
to
__'_ state prison months.
-5. The unconstitutional version of the
,I995· sentencing guidelines resulted ina more
severe punishment far many offenses,· such as
Defendant's; therefore, the Defendant should
be resentenced pursuant to a corrected score
sheet utilizing the predecessor 1994 guidelines.
6. Because the offense date in this case
is DATE, the Defendant falls within the
"window period" for challenging Chapter 95184.
.
Wherefore, the Defendant requests'this
Honorable Court to enter an order correcting
the illegal sentence and imposing a sentence
utilizing the 1994 sentencing guidelines. The
Defendant also requests any such other and
further relief the Court deems just and proper.

• • • • •

This is only a model form FPLP is providing to assist those individuals who have
standing'to challenge their sentence based on
the decision entered in Heggs. Each case is
different and it cannot be emphasized enough
that, before filing any pleading with the
courts, the litigant should make every' effort
available to thoroughly familiarize himself or
herself with the laws and rules applicable to
their particular issue. In the alternative, speak
with an attorney or someone knowledgeable in,
the law.
Some prisoners have elected to include
an additional paragraph arguing:
7. To maintain uniformity in sentencing in compliance with the legislative intent of
the 1994 sentencing guidelines, upon resentencing in this case, the Court should enter a '
separate order directing the Florida' Department of Corrections to apply the gain time
laws applicable to the 1994 sentencing guidelines.

••

••

•

This gain time argument has a major hurdle to
overcome.· Chapter 95-294 created the "Stop
Turning Out Prisoners Act." The "S.T.O.P."
act applies to offenses committed on or after
October I, 1995, and prohibits the FDOC
from awarding gain time that would result in a
prisoner being released prior to serving 85%
of the sentence imposed. In other words, although the inclusion of an argument for gain
tine applicable the 1994 sentencing guidelines
may offer a glimmer of hope, there is no such
thing as a winner until and unless it wins.

Page 13

,_._-~.~-_.

-..... - - - -

Under the U.S. Supreme Court decision
tory minimunu or I!U!XlmUIIH preclude sentencing within the guidelines recommenda- entered in Sandin v. Conner, SIS U.S. 472,
tion. the trial judge must impose either con- liS S.a. 2293. 132 L.Ed.2d 418 (1995), it's
current or con.feCHtive .temgnces, as the case only reasonable to believe that the !!Iiginl!I
Benjamin: Fannin :appealed the Pinellas may be, in order to come as close as possible "Reduetlon of Capacity" statute may have
created a liberty interest for numerous prisonCounty ;rriar CoUrt~s order denying his postcon- to the guidelines scoresheet recommendation.
victlon motion filed under Rule 3.850. Fla:R. 554 So.2d 512. 514 (Fla.1990) (emphasis ers who were in the custody of the state correctional system between 6/17/93, an~,
Crlm.P. A couple of Fannin's claims were that added in opinion),
As for the denial of Fannin's perjured 4125/94. For those pri~ners, providtd \hey
the State violated his due process rights by utilizing perjured testimony tit obtain a conviction testimony claim, the DCA found Fannin pre- . actually had an active federal detainer placed
against him and that the trial court erred by im- sented a "facially sufficient" claim under Gig- against them and had not been convicted of a
posing consecutive mandatory minimum sen- lio v. United States, 405 U.S. 150, 92 S.a. capital felony in this state. this 1993 statute
763,31 L.Ed.2d 104 (1972), which ifproven appears to offer potential. "If that statute does
tences under the sentencing guidelines.
Fannin was convicted of" count of vio- could warrant relief under Rule 3.850, FIa.R. provide the inmate with a liberty interest, that
interest may only be taken 'with due proclating the Florida Racketeering Influenced and Crim.P.
Conupt Organization Act ("RICO"). one count See: Fannin v. State, _ So.2d - - J 25 FLW ess.... Meola v. FDOC, 732 So.2d 1029
of RICO conspiracy, and numerous counts of D336 (Fla. 2d DCA, February 4, 2000).
(F1a.1998). Since the failure to tender qualitrafficking and conspiracy to traffic in cocaine
fied prisoners for transfer could "inevitably
affect the duration of [their] sentence, Sandin,
over 400 grams."
Potential Relief Found In 1993
515 U.S. at 487, liS S.Cl. at 2302, resulting
Pinellas County Circuit Court Judge Brandt
Reduction of Capacity Statute
C. Downey, without providing written reasons
in an "atypical and significant hardship ... in
.for departing from the permitted guidelines sen- Effective June 17, 1993, the mandatory dic- relation to the ordinary incidents of prison
tencing range of five and one-half to twelve tates of the original "Reduction of Capacity· life," id. at 484, lIS S.Cl. at 2300, it's only
years incarceration, sentenced Fannin to 3 con- statute, Ch. 93-406, § 39, at 2286, Laws of reasonable to believe his state-createdright
secutive I5-year mandatory minimum sentences Florida, codified at s. 944.0231, Florida Stat- rose to the level of a federally protected liberty interest. See Isreal v. Marsha/I, 125 F.3d
for an overall sentence of 45-years incarcera- utes (1993), established that:.
tion. Initially. Fannin 's two co-defendant's had When the population ofthe state correctional 837 (9th Cir.1997) (assuming, without dccidalso received consecutive minimum mandatory system reaches 99 percent ofits lawful capac- ing, that the state-created "right to be tenity. the Governor. pursuant to s. 252.36, shall dered ... for transfer" is a protected liberty
sen~nces exceeding the guidelines permitted
use his emergency powers to reduce the ca- interest).
range.
Although Fannin had, to no avail, previ- pacity ofthe state correctional system as folAlthough the current" reduction of capacouSly raised his sentencing issue in his direct lows: The Governor shall inform any federal ity statute is discretionary, the original 1993
appeal, the Second DCA had affirmed, per cu- jurisdiction which has a concurrent or con- version was mandatory. In I)iv. of Workers'
riam ("PCA"). without a written opinion, Fan- secutive sentence or any active detainer Compo Etc. V. Brevda, 420 So.2d887 (Fla. 1st
nin successfully raised the issue again in his placed on any inmate in the state correctional DCA 1982), the First DCA found that the:
Rule 3.850 motion. Since, in their direct ap- system of his intention to transfer custody to legislature, in amending or repealing a statute, .
peals, both of Fannin's co-defendants prevailed that jurisdiction within 30 days. No prisoner may not divest the holder of vested rights that
on the same guidelines departure issue Fannin shall be so transferred wllo is convicted of a accrued while \he original statute was in efhad lost on, the DCA found it would be funda- capitalfelony in this state nor shall any trans- feel See also, § 11.2425, F.S.A.; Bitterman V.
mentally unfair to deprive Fannin relief on the fer take place to any county or municipal ju- Bitterman, 714 Sc,2d 356, at 363 (Fla.I998)
risdiction within this state.
("Substantive rights cannot be adversely afsame issue.
Upon recognizing its own error in afThis law remained in effect until 4125194, fected by the enactment of legislation once
firming the sentence in Fannin's plenary appeal, when the Florida Legislature amended it by those rights have vested."); Meola, at 1035
the Second DCA, citing Benedit v. State, 610 changing "reaches 99 percent" to "exceeds ("due process ... calls for such procedural
So.2d 699 (pIa.· 3d DCA 1992), and Wright v. 100 percent" and insened the words "and re- protcctions as the particu\ar situation de.
State, 604 So.2d 1248 (Fla. 4th DCA 1992), for mains in excess of 100 percent of lawful ca- mands.").
If successfully challenged, it's possible
the proposition that postconvictiOll relief may pacity for 21 days," Ch. 94-11 I, § 2. at 107,
be warranted to remedy a fundamentally unfair Laws ofF/a. It was not until 6/10/95, through this statute could benefit numerous prisoners,
8mrmance of the direct appeal. reversed the Ch. 95-251, § 2, at 1761. Laws of Fla., that including but not limited to prisoners who
trial court's denial of Fannin's Rule 3.850 mo- the legislature "made use over the Governor's were In FDOC custody between 6/17193, and
tion. Stated simply the DCA found that even emergency powers optional in lieu of manda- . 4125194. with detainers placed against them
though Fanhin had preViously raised the illegal tory. ... Historica1 and Statutory Notes at 24 by INS. One such challenge, Morris v, Bush,
Case No. PC 99-05917, involving a concurguidelines departure issue in his direct appeal, Fla.Stat.Ann. 472 (Supp,1996).
Recently, in Gomez v. Singletary, the rent federal sentence is pending before the
under the circumstances, he could successfully
raise the issue again under Rule 3.850, FIa.R. Florida Supreme Coun found that. "prison Honorable Nikki Clark, Judge of the Leon
Crlm.P. The Fannin Court, quoting Brannam v. . overcrowding did exceed the relevam thresh- County Circuit Court. In that case, among
old levels in 1993 and onward for a number of other things, Morris, citing Byrd v. Hasty, 142
State, found that:
Unless J!lDfBl!I. or downward tkpartures are years." 733 So,2d 499, at 506 (F1a.1998) F.3d 1395 (11th Cir.1998). claims the Goverjustified by valid written reasons. a trial judge (emphasis supplied in opinion). According to nor's noncompliance with the 1993 reduction
mQ)l not depart from the guidelines recommen- the prison population level charts submitted of capacity statute has deprived him of his
dation. Since uniformity in the sentencing proc- by the FDOC in Gomez. It appears the popu- eligibility under S. 18 U.S.C. § 362I(e)(2)(B)
ess Is the goal. all sentences should reflect. or lation of the state correctional system actually to earn a one-year reduction on his concurattempt to reflect. the guidelines as closely as exceeded 99 percent of its lawful capacity on rent, but longer, federal sentence. Good or
possible unless valid reasons for departure are numerous occasions, including but not limited bad, the outcome of this case will be mentioned in FPLP's Notable Cases._
found Thus. in those instances where the statu- to 4122/94,
Perjured Testimony And Unauthorized Consecutive Maud. Mm. Sentences May Warrant
Rule 3.850 Relief

F.P.L.P. VOLUME 6, ISSUE 3

Page 14

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Page 15

Florida Department of Corrections
2601 Blair tone Rd.
Tallahassee FL 32399-2500
(850) 488-5021
Web Sile: www.dc.state.O.us

Florida Corrections Commis...ion
2601 Blair lone Rd.
Tallahassee FL 32399-2500
(850)413-9330
Fax (850}l13-9141

Olliee oflhe Governor
PL 05 The Capitol
Tallahassee FL 32399-0001

EMail: fcorcom®mnil.dc.stute.n.us
Web Site. ~w dosSlllle 11 USlfgllslagencieslfcc

Chlcflnspctlor General
.922-4637
Clttten's Assi.sWlCC Admin
488·7146
Commlsslon!Go\emment Aa:ounl4blllt)

(850) 488-2272

FDOC FAMIL Y OMBUD MAN
FDOC has Cfctued n new position In the cCl1lml
office 10 address complain llJld provide nssiStnnec to
TIlt

prisoner's

famlh~

and fnends

S)IVIlI Williams

IS

the FDOC emplo)tt appointed as the MFanllly Ombudsman" Accordmg to Ms \YlllilllTts. 11Ic Ombudsman works :lS :I medillilor bet\loecf1 families. m·
males, :tnd the department to reach the mOSI effee.II\C
resolution" TIlt FDOC Fnmlly Services Hotline IS
toll·freC" 1·888·SSS-648H

FDOC PA 1 H HELPLI E
The FDOC has nlso CfCUted :I help hne to assist Span·
ish.-spcal.mg Cttll.cns. obum information from the
depanmenl Tm:! Hinton I Ihe FDOC emplo)C'C m
this position. Conlnet 1·800...; 1().4248
(PI
. nform FPI P If \00
using the abo\e liCTVlec:s1

na\"C

an) rroblrntS "Ith

The Florida Correttions Commission is
composed of eight cili/ens appointed by the

go\cmor to o... crsec lhc Florida Department
of COrTCClion.s, advise the go\cmor nnd
legislature on correctional issues, and
promote public educAlion :thoUI thc
correctional system in
Florida.
Thc
Commission holds regular meetings around
the stale whieh the public may attend to
pro\'idc input on issues and problems
affecting the correctional system in Florida.
Prisoners families and friends arc encouraged
10 contaclthe Commission to advise them of
problem areas. The Commission is
independent of Ihe FDOC and is Interested in
public participation Bnd comments
concerning the m c:rsight of thc FOOC

MEMBERSHIP/SUBSCRIPTION RENEWAL
Please check your mailing Inbcl 10 dClcmlinc your tenn of
membership and/or lasl month of subscription to FPLP. On the top line will bt:
a date such as ... 'oV 00···. That dale indicates the last month nnd lear of
your current membership or subscription to FPLP. Please Lake the: time to
complete the enclosed fonn 10 renew your membership nnd subscription 10

to the People
.922~7
Office of Executive Clemency
2601 Blair tone Rd.
Bldg. C. Room 229
Tallahassee FL 32399-2450
(850)488-2952
Coordin.:J.tGr Janet Keels:
Florida l)arolcIProbalion Commission
2601 Blair Slone Rd.. Bldg C
Tallahassee FL 32399-2450
(850) 488-1655
Department of Law Enforcement
P.O. Box 1489
Tnllahass<'C FL 32302
(850)488-7880
Web ite· \\'\\'\\,fdle.st3lc.n,us

Florida Resource Organizations
Florida Institutional Legal Services
111O-C IV 8th Ave.
Gainesville FL 3260 I
(352)955-2260
Fax: (352)955-2189
EMail: filS@afn.org
Web ite: w\V\\.afn.org/fiIsi

Families \\ith Loved
ones In Pri!On
710 Flanders Ave.
0-.)100' Beh FL 32114
(9().l)254-8453

EMail: nip@afn.org
Web ite:

\\w\~,afn.orgl

nip

RcstomllVc Justice Ministry Network

P.O Box 819
Ocala. FL 34478
(352)369-5055
Web: \\.ww.rjmn.net

Email: Bemie'@Ijmn nct

FLORIDA
PRISON
LEGAL
PERSPECTIVE
P.O. BOX 660-387
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FPLP.
Moving? Transferred? If so, please complete the enclosed address
change fonn so that the membership rolls lmd mailing list can be updnted.
Thank you!
'The le\-el ofcivili:Dtion in a societ)'
may be determined by entermg It'S

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F}'dar Oosto}'c\"Sk)·
Crime and

l)unishmenl

F.P.L.P. VOLUME 6, ISSUE 3

Page 16