FLORIDA PRISON LEGAL

ers ectives
VOLUME 8, ISSUE 3

FDOCGUARDS
ACCUSED OF
PRISONER
TORTURE
FIRED
WEWAHITCHKA-Three
Florida
Department of Correction's prison
guards were fired April 19 following
a year-long investigation by the
department into allegations they
tortured a state prisoner.
Fired were Lt. Cannen
McLemore, Sgt. Christopher Wood
and Correctional Officer Donald
Guillot who were' accused of
torturing prisonerWdliam Webb at
Gulf ForestJy Camp, located in the
rural Florida panhandle, in July
2000.

DOC

MAY/JUNE 2002

ISSN# 1091-8094

investigation

documents allege that the guards
began by slapping Webb while trying
to force him to reveal information

about contraband at the work camp
that is located at a major Florida
prison-Gulf Correctional Institution.
When Webb refused to supply
information he was then taken
outside where the ~rds handcuffed
his arms behind him around a small
tree. McLemore then sprayed Webb
with a chemical like ,pepper spray as
Webb hung helplessly fastened to the
tree. Webb believed the spray was
not the same as that issued to DOC
guards.

DOC documents say that
then the guards beat Webb, hitting
him .numerous times and then left
him cuffed to the tree for an
"extended period of time."
McLemore had worked for
the DOC for 12 years, and is also a
Gulf County Commissioner. Several
years ago when a prison chain gang
was operated out of Gulf CI, another
prisoner accused McLemore of
making him get on his knees where
McLemore put a loaded handgun to
his head and cocked it. The FDOC
took no action in that case.
Wood also was a 12-year

veteran with the FDOe,but Guillot
had only been with the DOC six
months before the alleged torture of
Webb took place. Webb has since
been released from prison.
In response to the 'firing of
the three guards FDOC Secretary
Michael Moore.stated, 'We have no
tolerance for abuse of inmates in our
custody." Moore made no comment
on whether he thought Webb's abuse
was another "isolated incident" as he
labeled the murder of death-row
prisoner Frank Valdes by guards in
1999.

The allegations of Webb's
treatment are far from the only
allegations of abuse at prisons
located in Gulf County. The main
prison, Gulf Correctional, has a'
widespread
reputation
among
Florida's prison population as being
one of th~ state's worse prisons,
where prison guards appear to have a
Dee rein to beat and abuse prisoners.
According to some sources, newly
arriving prisoners at Gulf CI. are
often told when they get off the bus
that while the town ofWewabitchka

I'AMIUES ADVOCAlES PRISONERS

~

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UIIITED fOR !'RlSON REfORM

Mandatory HlV Testing Bill
Death Penalty Debate Increases

2
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FDOC Annual Report Summary..............................................
Post Conviction Comer...
... .. . .
.. .. ....
.. .. ..
Notable Cases
Writing to Win

4

7
10
14
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FLORIDA PRISON LEGAL

PERSPECTIVES
P.o. Dol: 660-387
Chuluota, Florida 32'766
Publishing Division of:

FLORIDA PRISONERS' LEGAL A~D
ORG., INC
A SOl (cX3) Non ProfitOrganilation
FlIX (.ron 56B.0200
EmaiJ: fplp@aol.com
Website: www.fplllO.org

FPLAO DIRECTORS
Tcn:sa A Bums-Posey
Bob G. Posey, CPL
DancIJ E. Blackwelder, CPL
David W. Bauer, Esq. ,
Loren D. Rhoton, Esq.
Oscar Hansen, CPL
Linda Hanson

FPLPSTAFF
Publisher
Editor
Co-edltor

Teresa A. Bums-Posey
BobG. Posey
Oscar HlIl1SOfI
Shenilohnson
Rcsearclt
AdministnUivc Assistant Darrell E. Blackwelder

FPLP ADVISORY BOARD
. William VlII1 Poyck
Philip Bagley-Terry Vaugim
. MldJacl Lambrix-lamcs Quigley
Unda Gotllieb-Susan Manning
Enrique Diaz-Genc Saber
Michllcl Palmcr-Mark Sherwood
Trisb Mills

PerspectIVes

is nearb~that they are now in
'Wewillhitcba" as what will happen
if they cause a problem.
This
statement is usually made by a higb-

According to ber bill, if '
signed or allowed to become law by
Gov. Jeb Bush, prisoners found to be
HIV positive will be linked to health
care while stiU in prison, and referred
~guard.
One prisoner who just left
to doctors for Medicaid bankrolled
0u1f CI after being there six years. ' treatment once they are released.
claims guards murdered several
The bill provides exceptions to
prisoners while he was there, but
prisoners who have already been
nothing was ever done about it
tested within the year before their
because they were always covered up
release, to those already known to be
and the FDOC central office didn't
HIV positive, or to those released by
seem to care what happened there.
an emergency court order.
While recently, he said, the beatings
The bill's passage came only
have slowed down some, they still
a couple o.f' months following the .
are' happening, "especially in the
release of a new report by the
confinement unit."
Centers for Disease Control in
[Sources: St. Petersburg Times,
Atlanta. The CDC report released in
4/20/02; personal interviews]February indicated that AIDS is the
leading cause of death among blacks
in Florida between the ages of 24 to
44. The CDC report also listed the
10 U.S. cities with the highest
HlV/AIDS infection rates in 2000.
Miami headed the list, with 58 cases
per 100,000 people. Ft. Lauderdale
was third (behind New York) with 53
cases per 100,000 and West Palm
Beach reported 48.2 per 100,000.
Disturbing to Rep. W1lson is
that blacks top all other ethnic groups
in total AIDS cases, about 35,000
blacks in Floricla-one in every 50
black people-carry IfiV according to
TALLAHASSEE-During April the
the Fla. Dept. of Health. Florida's
Florida Legislature passed a bill that
prison population is about 60 percent
would require all prisoners being
black.
released from Florida Prisons to be
That
prisons
are
tested for HI\~ the virus responsible
experiencing an HIVI AIDS' epidemic
for AIDS.
is not new news. In a report released
House Bill 1289 (2002) was
by the Bureau of Justice Statistics, a
sponsored
by
Representative
bureau within the u.s. Justice
Frederica Wilson, D-Miami, and
Department, in June 2001, it was
would
require
the
Florida
noted that AIDS cases among
Department of Corrections to test
prisoners is five times greater than
prisoners for HIV at least 60 days
the rate "among the nonincarcerated
before they are released from prison.
general population of the United
"AIDS is being fed and bred
States. The BJS report, surveying
in prisons," Rep. Wtlson said.
prisons and jails nationwide between
sexual
acts,
"Promiscuous
1995 and 1999, found that 3.4
intravenous drug use, needle sharing.
percent of all female state prisoners
and the proliferation of tattooing,"
were HIV positive, compared to 2.1
are mctors that contribute to HIV in
percent of male prisoners.
And
Florida prisons, claims W1lson.
while the number ofAIDS deaths in

BILL PASSES
LEGISLATURE
FOR
MANDATORY
HIVTESTING OF
PRISON
RELEASEES

______________ 2

- - - - - - - - - - - - - FLORIDA PRISON LEGAL

state prisons

had dropped from
\,\)\Q in 1995 to 242 in 1999, AIDS.
remains the second-leading cause of
death for state prisoners, only behind
"natural causes other than AIDS."
Still, the percentage of AIDS related
deaths in state prisons is almost twice
the rate of AIDS related deaths in the

general U.S. population.
The BJS report is of even
more concern as relates to Florida.
Although AIDS cases are found in
every prison system, New York,
Florida, and Texas were the three
most infected states. Collectively,
those three states account for onehalf of the HIV-positive cases in
prison reported nationwide.
HIV testing varies widely
among prison systems. Texas and
Geo~ for example, have very
limited testing.
Florida has
previously only tested when a
prisoner requests it.
Other states require more
ftequent testing. Some states test aU
prisoners when they enter the prison
system. Only three states, Arkansas,
Nevada, and South Carolina, and the
Federal Bureau of Prisons, test aU
prisoners at least once a year.
Even more problematic in
Florida is while there are laws that
require prison officials to provide
extensive HlV/AIDS education to
prisoners, the FDOC only did that
when the law was first passed years
ago.
Now according to prison
activists, very little infonnation is
available to prisoners on the subject
from the FDOC, and HIv-infection
rates are continuing to increase.
While Rep. Wilson's bill is a step in
the right direction, eSpecially since
80 percent of the prison population
will be released at some point,
prevention, and
not
merely
identification after the fact, needs
equal enforcement, claim activists.
At the time of this writing it
is not known whether Gov. Bush will
approve or veto the testing bill. ReP.
WI1scm's first attempt to have such a
bill passed in 1998 tailed because of

Perspectives - - - - - - - - ' - - - - - - -

the cost. 'IfHB 1289 is implemented
it is exPected to cost taxpayers $1
million a year, pemaps a hard sell
with the budget situation in Florida
sotigbt.
[Sources: BJS report, HIV in Prisons
and Jails, 1999, NCJ 187456, July
2001
(available
from
www.ojp.us.doj.govlbjsl; The Miami
.
Times, 4/24 - 30102]-

BOOM OR BUST
The High Cost of Running a
Prison Nation
America, the land of freedom and
liberty, imprisons more of its own
citirAms than any other country in the
world. In a report released by the
U.S. Justice Department this past
August statistics showed that the
U.S. federal, state and adult
correctional population rose another
2 percent in 2000, to a I'eC9rd 6.5
million people.
That number
represents the total number of
prisoners in prisons and jails as weD
as those on probation or parole. The
2 percent increase, however, was
below the ~ual increase of 4
percent averaged for each year
during the last dec:ade. That small
slowdown may be attributed to the
steady decline in the crime rates over
the past decade, or to the growing
realization of just what it is costing
the U.S. and individual states to base
a significant portion of the economy
on a crime and prison industry.
In February the Justice
Department's Bureau of Justice
Statistics released a new study
showing that in 1999, the last year
for which figures are available to
date, the cost of America's War on
Crime was $147 billion, or four
$les the $36 billion spent in 1982
on criminal justice. The study noted
that in 1999 almost 2.2 million
people now make' their livelihoods
on the criminal justice industry. That
includes one million police officers,

3---

717,000 prison and jail guards, and
455,000 people who work in the
court system, according to the BIS
study. The expenditure in 1999
amounted to 7.7 percent of all state
and local gove~ spending,
approximately the' same as aU
government expenditures an health
care and hospitals for the same
period.
The monumental cost of
crime and incarceration has caused
some states around the country to reevaluate laws that were adopted in
the 1980's and 90's behind "lock
them aU up" policies that forced
many states into a prison buileting
frenzy. With many states struggling
with budget deficits this year, some
states have realiz.ed that perhaps the
"get tough" policies went too far and
are now looking at ways to scale
back spending an incarceration and
prisons.
Collectively, states report
that they anticipate a $40 billion
budget shortage this coming fiscal
year, which ifrealized will~be one of
the most burdensome deficits ever
experienced. The last time states
experienced
substantial
budget
shortages was in 1991, when together
they had to cut $7.6 billion, less than
one-fifth of what is expected to have
to be cut this coming fiscal year.
Recent Justice Department
statistics show that approximately
$24 billion is spent by states every
year now on incarcerating 1.2 million
nonviolent. prisoners. Additionally,
several polls have shown that public
opinion
is
changing
about
incarceration as the first solution,
indicating that the public is more
receptive to alternative sentencing,
rehabilitation, and prevention for
nonviolent offenders. A recent poll
by the Open Society Institute shows
threIHp1arters of the public favors
probation over incarceration for'
nonviolent offenders and that a
majority of the public favors
eliminating mandatory sentencing
and a return to discretiowuy

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sentencing by judges. Polls taken in
California
and
Pennsylvania
indicated that when lawmakers
address state budget deficits that
prism costs should be among the
first cuts made.
As state .budgets are
tightened politicians have scaled
back their crime fear-inducing
rhetoric and had to rethink their
incarceration policies.
Even
conservative states are shifting to a
more moderate approach to crime.
, Louisiana, Which has the
highest per capita incarceratiOn rate .
in the U.S., recently abolished
several mandatory sentencing laws
and returned sentencing discretion to
judges. The move is expected to
save Louisiana millions of dollars a
year.
Similarly, Republican-led
states,
including
Arkansas,
Connecticut, Utah and North Dakota
have increased parole of nonviolent
prisoners or e~ mandatory
minimum
sent.eQ.cing
laws.
Restructured sentencing guidelines in .
North Carolina have resulted in
nearly 10,000 offenders being
diverted to alternatives to prison.
West Virginia, Mississippi and Iowa
recently enacted new laws to
increase' alternatives to incarceration
or return sentencing discretion to
judges for drug or nonviolent crimes.
California is reported to be saving
$100 to $150 million annually with it
new law that is diverting an estimated
36,000 nonviolent drug offenders
into drug treatment instead ofprison.
Florida also claims that it
will suffer a large budget deficit next
fiscal year, but its Republican-led
government is pushing cuts in
education and health care for the
elderly rather than
return to
discretionary
sentencing
for
nonviolent offenders or other ways
of reducing its prison population.
Gov. JOO Bush has ~ that no
matter what, Florida will retain 85
percent sentencing for all who are
, incarcerated. A bill was introduced to
divert first time drug offenders to

Perspectives - - - - - - - - - - - - -

. report ofcriminal justice cmting
treatment instead ofincarceration for
in
this
year's
consideration
Americans $147 billion in 1999,
legislative
session,
but
the
stated: "In the 1990'~ when states
Legislature in Florida has bogged
were flush with cash, they could do
down in making any budget
anything. But now they must mike
decisions despite an unprecedented
bard clioices, and with crime going
three sessions having been held in
down, they must put a price on
the past six months.' Even though
prisons."
Florida has the third largest prison
system in the U.S., and spends
[Sources: BJS reports; Justice Policy
almost 8 percent of its general
Institute report by Judith Green and
Vmcent Schiraldi (2002); New York
revenue
on
corrections,
no
Times, 10/2/01 and 2/11/02; FDOC
lawmakers have been brave enough
Annual Report 2000-2001]to suggest that it is an area that could
be reduced to save money.
Approximately 45 percent of those
incarcerated in Florida are nonviolent
offenders, .according to Florida
Department of Corrections' statistics.
Almost 20 percent of the Florida
prison population is incarcerated for
nonviolent drug offenses. The prison
system did receive some cuts this
year, education was slashed at all but
,A . panel commissioned by
10 of the FDOC's 125 prison
Illinois Gov. George Ryan issued its
facilities
and
in-prison
drug
report April 15, 2002 recommending
treatment programs eliminated at all
85 specific revisions to the state's
but 4 prisons.
Community
capital plmisbment laws, stopping
correctional drug treatment programs
just short of a recommendation that
were also severely reduced, which
the state abolish the death penalty.
collectively are almost guaranteed to
The 14-member bipartisan
increase recidivism rates in Florida
panel's report was banded over to
and cost taxpayers more in the next
Gov. Ryan who indicated that after
few years, according to critics of
fblly reviewing the report he would
these reductions.
likely seek' legislative change to
Ironically, even Texas with ' Illinois' capital punishment laws.
its conservative policies about
Ryan has become a major figure in
incarceration, and having the largest
the capital plmisbrnent debate in the
prison population in the U.S., is
U.S. where he suspended all
doing more than Florida. .Texas has
executions in his state in January
reduced
imposing
technical
2000 after 13 men had been
violations for parolees and increased
exonemted in capital cases in Illinois.
parole releases. cutting its prisoti
Ryan imposed the moratorium after
population by almost 8,000 prisoners
he, a Republican and longtime·
and saving taxpayers nilllions.
supporter of the death penalty,
Ohio, Michigan, Illinois, and
became convinced that there wet\l
other Republican-led states have
major. flaws in the way capital
actually closed down prisons as a
punishment is imposed.
cost saving measure. Virginia is
The panel issuing the report,
planning to close some of its prisons.
which included both defenders and
Michael
Jacobson,
a
critics of capital p1rn ish ment, ibund
professor at John Jay College of
that without serious changes in the
Criminal Justice in New York,
law, and perhaps even with the best
commenting on the BJS's recent
safeguards, as long as the death

DEATH
PENALTY
DEBATE
INCREASES

4--------~-------

- - - - - . . . : . - - - - - - - - FLORIDA PRISON LEGAL

penalty is imposed innocent people
may be executed.
Fonner
U.S.
Attorney
Thomas Sullivan, who co-chaired the
panel, said, ''The message from this
report is clear: Repair or repeal; fix
the capital puniShment system or
abolish it."
An analysis accompanying
the panel's report found that of 275
deatb-pena1ty cases in Dlinois since
1977, over half were later reversed
because of trial court errors, tainted
evidence
and
mistakes
by
prosecutors and defense lawyers.
The report also ·supported evidence
that bias may be a factor in who is
sentenced to death or not. Persons
ccnvicted of ~g whites. females,
children or senior citizens have a
higher chance of receiving the death
sentence over other type killings, the
report found.
The Illinois report. received
widespread
media
attention,
especially when it was released only
a &w days after the 100111 death-row
or fonner death-row prisoner was
exonerated by DNA evidence since
1973. Ray Krone, 45, was released
tram Arizona'~ death-row April 8,
after DNA tests showed that he had
been convicted of stabbing a
bartender to death in 1991 when the
DNA evidence matched that of
another man in prison on unrelated
charges.
The Illinois report and the
l00~
DNA exoneration, both
significant events in a fast-growing
movement that is placing increasing
pressure on death penahy supporters,
came on the heels of another event
"that has effectively placed a
moratorium on executions in 9 of the
38 states with the death penalty. On
1anuary 11 of this year the U.S.
Supreme Court agreed to hear an
Arizm1a case that calls into question
the constitutionality of whether a
judge instead of the jury may decide
sentencing factors that contribute to
imposition of a death sentence. Nine
states, including Florida, allow
judges to make such decisions

Perspectives - - - - - - - - - - - - -

Nimer, stating, ., am hopeful that
some of our education funding may
be restored next fiscal year through
increased profits from 1I1e canteen
and inmate telephone usage which
. goes into the inmate welfare trust
fund."
FPLAO staff is woIking
hard, as usual. to keep an eye on1l1e
changes occurring and a check and
balance on what they can. In
December FPLAO Chairperson
By Bob Posey
Teresa . Bums Posey ,tiawled to
Tennessee for a two-day meeting
Greetings, to all of Florida Prisoners'
with representatives from Critical
Legal Aid Organization's (FPLAO)
Resistance, a national coalition
members, supporters, and friends and
movement calling for a moratorium
welcome to this latest issue of the . on prison building and working to
organiz8tion's newsletter.
focus public attention on the prison
These past few months have
industrial
complex.
The
been interesting, to say the least.
organization's
staff is
alsO
America luis launched its war on
networking with 'several other groups
terrorism and our entire society is
and
organizations,
including
being changed to deal with that. The
Anmesty lDtemational and local
Middle East is in turmoil and our
Florida chapters of the ACLU, to
country has been drawn it. In Florida
increase public awareness of human
our state lawma'kers, citing a budget
rights abuses in Florida's prison.
shortfall, haVe been stymied through
In March FPLAO was
three sessions in the past seven
represented by (retired) attorney
months (and are in a fourth at the
Robert Bader at a public hearing
time of this writing) trying to work
requested to present opposition to an
out a budget and define their political
FOOC rulemaking proposal to allow
positions for this November's
prison staff increased authority to
elections.
examine the contents of incoming
In Florida, prison budget . and outgoing legal and privi1egec1
cuts in December slashed into two of
mail to or from prisoners. Attorneys
the most beneficial programs for
Susan Cary, who assists death-row
prisoners-education and substance
prisont?rs, Lisa White Shirley, who
abuse-leavirig even more prisoners
wolks with Florida Institutional
idle and the system on a course to
Legal Services, and an assistant
experience an increase in the already
public defender, also went to the
high rate of recidivism. In the long
hearing with objections. We are
nm this will cost taxpayers many
waiting now to see if. FDOC will
times more than the amounts "saved"
withdraw, change, or proceed to
by slasbiDg education and substance
adopt 1I1e proposal wchanged.
abuse programs this year.
FPLAO is strongly opposed to prison
Florida prisoners and their
officials having any increased ability
families will feel the pinch as prison
to examine the contents ofprisoners'
administrators gear up to figure out
mail to attorneys, govellllWlDt
ways to force them to subsidize more
officials, or the media.
of the cost of incarceration. One
In April, as noticed in the
example of that mindset is part of a . last issue of'FPLP, Florida prisoners
memo sent to all FooC wardens and
and their fiunilies lost one of their
education supervisors in 1anuary
most ardent advocates and activists,
from Director of Programs Richard

exclusive of the jury. The Supreme
Court is expected to rule on that case
this summer, and may invalidate the
.death sentences of over 800 deathrow prisoners in the nine states. (See
last issue of FPU', '"Wheel of Death:
Florida's Other Lottery

Game.,.

FROM THE
EDITOR

5 - - -_ _--:--~-----.---

---------~--- FlORIDA PRISON LEGAL

Gayle Russell. Over the many years
that Gayle worked at Florida
Institutional Legal Services in
Gainesville there is no telling how
many prisoners she helped or their
fiunily members. She truly cared
about others. Gayie will be deeply
missed by all who knew her or were
ever helped by her. A11 ofFPLAO's
staft: including myself: were very
saddened by Gayle's passing away,
but grateful to have known and
worked with her.' To old-time
convicts, I also note in this issue's
"In Memory of ..." notice that James
Bailes, "Ruckus", passed away in
February.
As one old con
commeuted on hearing the news, "If
Ruckus liked you, you couldn't have
a better friend." I agree. May he be
at peace.
Now to the nitty-gritty. Over
the past couple of years it has been
mentioned several times in FPU'
that the organization needs to hire
someone to work full-time in the
office. .All of the current staff are
wlumeers, most with their own full·
time jobs or businesses and families.
They devote what spare time they
can to keep FPLAO and this paper
going for Florida prisoners and their
fiunilies and loved ones. Financially,
the organization functions solely' on
dues paid by members, some
advertisement income, and extra
donations. It is often a struggle to
stay afloat So fur the money just
hasn't been there to hire someone for
the oftke.
When one of the
wlunteer staff is out sick or out for
other personal reasons, it's that much
harder to keep everything on
schedule and going.
Members are asked to keep
that in mind arid are reminded that
FPLAO isn't the staff's organimion,
it is YOUR organiation. Becoming
a member isn't just about getting this
paper, itS about being a part of and
helping support Florida's only
organization that 'is working to
improve conditions for all prisoners
and their fiunilies and friends and

Perspectives - - - - - - - - - - - - -

bring them news and resource
information to help them deal with
individual problems.
In recent months it seems
many FPLAO members have slacked
off OIl recruiting others to become
members, That's not good. You are
needed to help the organization
grow. Encourage others, inside and
out, to become members.
When writing to the
organiation or this paper's staff,
please keep letters as brief as
possible and to the point. Over 300
letters are received each week, long
letters bog down the staff trying to
process that mail. If you write about
a problem receiving FPU', state that
and the problem at the beginning of
your letter. If you move or are
transf8rred, please complete and send
in the address change form in the
back of every issue. And do it as
soon as possible so FPLP doesn't get
sent to your old address or returned
to FPLP, or thrown away by prison
mailroom staff (which occurs).
Right now FPLAO is ready
to proceed on several projects that
have been developed, including
making another serious effort to
reduce the prison collect telephone
rates. But with membership growth
stagnant and few members making
donations, financing those projects
may not be possible. It's important
now that all members do something
for the organization. If you can
make a donation, large or small,
please do so. Over the next few
weeks, get 2 or 3 other prisoners or
family .members to join the
organiation. If each member, if
you, will do this, by the eJid of this
year we're going to have something
powerful going on, and before then
things are going to happen that you
didn't think possible. Let's get
moving people. now is the time.•

PLANT CITY
MAYOR,
POLICE CHIEF
ACCUSED
OFCOVERUP
PLANT CITY·Federal prosecutors
accused Plant City's mayor and
police chief of collaborating to hide
criminal evidence against police
officers targeted in a federal
corruption operation.
During late April Assistant .
U.S. Attorney Jeffrey Del Fuoco said
that Mayor Mike Sparlanan paid
legal fees for police officer Armand
Cotnoir to keep him from talking to
federal officials about crimes that
have been committed by police Chief
Bill McDaniel. In exchange, c~
Del Fuoco, McDaniel agreed to hide
incriminating evidence about the
mayor.
The
accusations
were
presented in court documents and are
the latest in a three-year federal
investigation of police corruption
allegations, including stealing, lying,
and looking the other way.
Prosecutors are claiming that police
officers stole property, conducted
illegal searches, filed false reports
and lied to judges.
Cotnoir, 27, was in~cted in
February on charges of concealing
knowledge of a felony, obstruction of
justice, depriving and conspiring to
deprive residents of their civil rights.
Although neither Sparkman nor
McDaniel have been charged with a
crime, these· latest accusations
prompted them and a city
commissioner to hire a criminal
defense irttorney..
. Two other former police
officers, Robert David Dixon and
Shawn Corgan, have already pleaded
guilty in the probe being conducted
by the federal government and
Florida Dept. of Law Enforcement.

6-----------------

- - - - - - - - - - - - - FLORIDA PRISON LEGAL

The aUeged criminal activity
occurred over a four-year period,
from 1997 until February of this
year, said prosecutors. Plant City, a
town of 27,000 is located 25 miles
east ofTampa.

[Source:

comparing the prints to any
Unsolved crimes and latent
prints.

•

St. Petersburg Times,

4/28/02] •

FDOCANNUAL
REPORT
FY 2000 - 2001
The foUowing figures, statistics, and
claims are from the' Florida
Department of Correction's recently
released annual report for fiscal year
2000-2001, which ran from July 1,
2000, to Jtme 30,2001:
Claimed Accomplishments

•

Managed
incarcerated

72,007

felons and
~ed
152,018
offenders on probation and
parole, admitted 25,731 new
inmates and carried out the
lawful release of over 26,800
from
the
department's
custody.
•

•

CoUected
approximately
$83,550,000 in court-ordered
payments from offenders.
Of this total, $31,360.393 or
37.5 percent was paid to
victims in'the form of
restitution.

Implemented the Automated
Fingerprint
Identificatian
System (AFIS) at aU five
reception centers.
The

•

Completed
statewide
implementation of Central
Visitation Authority using a
new computer screen to
coordinate and track visitors
in institutions. The primary
objective
includes
the
rejection of visitors who may
be detrimental to~.

Reduced number of service
centers from seven to four.

•

Privatized
comprehensive
health services in Region IV
and food services statewide.

•
•

Service Center at Dade CI to
train . female offenders as
service tedmicians.

•

Fonned
educational
. partnership with AAMCO
TJaDSJDiSsions,
Inc., to
provide training of offenders
at )oIk CI.

•

Formed partnership with the
Thoroughbred
Retirement
Foundation
to
provide
training for inmates at
'Marico CI in the care and
handling of thoroughbred

Implemented new three-year
contract with Florida Drug
Screening, Inc.

•

horses.
•

Connected 30 institutions
and four state courts in
Central and South Florida for
vi~nfen:nce bearin~

•

Changed close management
population procedures and
closed
five
close
management units.

InCl88Sed the number of
offenders
electronicaJ1y
monitored
an
Global
Positioning Satellite from
120 offenders to over 500.

FDOCGoals
Established ten fbll timo
narcotic K-9 teams.

•

Processed 38,367 inmate
grievances and developed a
more consistent and efficient
grievance process through
use
of regional
and
institutional
grievance
coordinator positions.

•

Assumed responsibility for
conditional
release
interviews from the Florida
Parole Commission.

•

Assumed monitoring of 403
Florida Parole ConuiUssion'
interstate compact cases.

•

Fonned
educational
partnership program with
Ford Motor Company to
provide Light Mainteoance

system captures high quality
fingeJPrint images,' thereby

positively identifying newly
received
inmates
and
establishing
a
criminal
record for each print and

Perspectives - - - - - - - - - - - - -

o

Create

automated

close

management and protective
management systems to

streamline reviews for state
classification
process.
Complete consolidation of
the male close management
population
to
three
institutions.

o

Implement

statutory

requirements outlined in
Senate Bill 912 Criminal
Rehabilitation Aa. that
authorizes major expansions
in transition assistance for
inmates.

o

Amend F.S. 945.215 to
increase weekly inmate draw
from $45 to amount
specified by Secretary to be
expended for personal use on

7--------

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

canteen
and
vending
machine items. (That was
done in Dec. 2001 and
weekly draw increased to
$65 by the Secretary«)

o

I>

Probation
Officers,
1,973 medical 'staft: and
5,037 administrative staff.

I>

During the 2000-2001 fiscal
the FDOC spent
$1,658,319,871.
The
average cost per day for
prisoners
at
major
institutiOns was $49.75
($18,159 annually).

I>

Amend Chapter 944.31 to
give the SecretaIy authority
to
designate
inspectors
within the Office of the
Inspector General as swom
law enforcement officers.
This action will. streamline
the
department's
investigative process and
reduce the need for outside
law enforcement to respond
to internal DC matters,
particularly in the area of
making arrests.

I>

I>

The FDOC operates 57
major prisons (prisons with
separate annexes are counted
as one prison). 52 of which
are male. 4 female and 1
with separate male and
female units, housing a total
of 60,239 prisoners of the
department·s then 72,007
prison papulation.
Of the 15,58~ ~!!i_cers within
the Deparanent 10,838 are
classified as corrcaional officers
(69.5%) and 3,831 are

In 2000-2001 there were
25,731 new admissions to
the prison system. (almost
identical to 1999-2000 at
25,743), 28.4 percent of
whom were incarcerated for
drug crimes, and 43.5
percent had served a prior
prison sentence in Florida
(recidivists).
During 2000-2001 elderly
new admissions (over 50
years old) totaled 1,221
(compared to 821 in fiscal
year 1996-97) of which 325
or 26.6 percent were
incarcerated for drug crimes.

I>

New admissions 17 years old
or younger numbered 1,698
in fiscal year 2000-2001,
with the largeSt percentage,
24.8 percent, incarcerated for
burglary.

I>

The youngest person in
Florida's prisons on June 30,
2001, was 14 years old and
the oldest was 89 years old.

I>

On
June
30,
2001,
approximately IS percent of
the state prison population,
or 10,862 prisoners, were
considered to be mentally ill.

I>

More than half of Florida
prisoners, 63.0 percent, are
serving sentences imposed
'after October I, 1995, that
requires them to serve a
minimum of 8S peitst of .
their sentences.

I>

Prisoners averaged a 7.3
grade level in Florida prisons'
on June 30, 2001.

I>

On June 30,2001, there were,
371 p,risoners on Florida's
death. row (368 males, 3
females). Of that number,
225' were white males, 133
black males, 10 other males,
2 white females and I other
. female.

Parole Statistics on June 30, 2001

I>
On June 30. 200I, the FDOC
employed 25, 457 people.
Of that number, 15,170 were
male, 10,287 were female.
Racial breakdown is 17,765
white. 6,071 ~lack, and
1.621 other. Correctional
officers were 15,587 of the
total, 2,860 Correctional

P.R.I.D.E. industries totaled
43 at 20 prisons, had 2,560
workers
and
prisoner
employed
213
staff'
members.

I>

com:ctional officer sergeants
(24.6%). Lieutenants make up
2.8% (435) while' cap~
comprise L7% (265).

I>

Asian, etc.), 67,762 were
males and 4,245 were
female.

year

Statistics as of June 30, 2001

'I>

Perspectives - - - - - - - - - - - - -

I>

Female new admissions
numbered 2,425 with 36.3
percent incarcerated for drug
crimes.
Of the 72,007 prisoners on
, June 30, 2001, 38,852 were
black, 31,308 were white,
and 1,847 were others
(Hispanic, American Indian,

•

•

There were 5,682 paroleeligible
prisoners
Of that
incarcerated.
number, 296 were being
imprisoned in facilities not
operated by the FDOC.
There were 2,252 people on
parole in Florida. however,
.only 825 of those were
Florida
parolees,
the
remaining 1,422 were on
parole from other states, and
S parolees where
of
unknown
origin
(no
explanation for·who those 5

8 ,---------------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - -

could be-ed).
•

In fiscal year 2000-2001
there were 101 Florida
parole-eligible
prisoners
granted parole. Conversely,
there were 101 Florida
parolees who had their
parole revoked and who
were returned to prison. Of
the '101 revocations, 6
parolees caught new charges,
9S were revoked for
technical violations.

The complete FDOC Annual Report
for fiscal year 2000-2001 (and past
fisc:al years) can be downloaded and
printed (approximately 75 pages)
ftom
the
Internet
at:
www.dc.state.fl.uslpub/anitual. •

• '!t, ,:

In memory of those who have passed on•••

:~

January

Feb. continued

:j Willie J. Copeland· NFRC

Lawrence Brown· Taylor
Jimmie G. Youngerman· NFRC
Frederick A. Caccavale - NFRC
Gerry D. Shingles· NFRC
James Bailes· NFRC
Raymond W. Sims· NFRC
Charles E.Morris - NFRC
Lee A. Jemison· NFRC
John R. Jenkins· NFRC
Stephen L. Davis· Wakulla
Robert S. Hall· SFRC
Darrell B. Jarrett· NFRC

j1 Richard G. Hale· NFRC

n Gary H. Parrish· NFRC

>' Archie Davis - Wakulla
Johnny Mack· NFRC
Jeffrey M. James· Taylor

I·

i;

February
I

;

Hilleary Sawyer - Martin
Dionne M. Thomas· NFRC
Alfred Owens - NFRC
Fabian T. Hall- NFRC

.. '.,
. -.,~

.. . ~,\t.

_.

DAVID .W. COL·LINS, Attorney at La~
fonner state prosecutor with more than 15 years ofcriminal law experience
"AV" mted by Martindale-Hubbell Bar Register ofPreeminent Lawyers .
I

Your voice in TallahaSsee representing prisoners in a/I
areas ofpost-conv!ctll!n relief, including:
appeals
Heggscases
habeas corpus
.3.850 motions

writs of mandamus
clemency
. representation before Parole Commission

Write me today about your easel
P.O. Box 541

Monticello, FL 32345
(8S0) 997-8111
"TIre hlrlng ofa lawyer Is an l"'Porlanl d«lslon that IhDflld not be btued lo/ely upon advertllemenls. Before you
d«hIe. cui me 10 lend youfree written Information about my qrmlljieatlotl$ and uperlel1«." ,

9

'.

FLORIDA PRISON LEGAL

Perspectives

POST CONVICTION CORNER

In the last issue I began addressing the filing of a Title 28
§2254 petition for writ ofhabeas corpus by a st8te inmate
in the federal coUrts. Before filing any such petition, it is
best to review the local roles of the federal district court
before whom you are filing your petition. There are three
federal districts in Florida: the northern, the middle and the
southern districts. While each district court is bound by
the Federal Rules of Civil Procedure (a 2254 petition is
civil in nature, not criminal), each district also has local
roles which must be followed. And, each district~s local
roles can differ. For example, the Northern District
requires that a 2254 petition be prepared on the form
provided in the Appendix ofForms to the Rules Governing
Section 2254 Cases, while the. Middle District does not
impose such a requirement. There are many slight
differences· in the requirements of the local roles so it is
always advisable to review said roles and make sure that
your federal habeas petition complies with the Rules of
Civil Procedure and the local roles ofyour federal court. If
you do not have the local roles readily available, then you
should write the clerk of your district court and request a
copy of said roles.
The Appendix. to the Rules Governing Section
2254 Cases in the United States District Courts provides a
Model Form for a §2254 habeas corpus petition. Said
form will be extremely helpful to the pro se petitioner as it
informs the petitioner all of the information the district
court will need in order to consider the petition. It is not
necessary to cite case law in your petition itself. Instead, I
would recommend that a memorandum in support of your
petition be filed which fleshes out your claims with
supporting case law and.application of the legal standards
to the facts ofyour case.
It is important to plan your petition out ahead of
time and make sure that you raise all of your issues in one
petition. Essentially, you will want to raise all of the
constitutional issues that you have already presented in
your direct appeal and state postconviction motion(s). If
you try to present several habeas corpus petitions to the
district court any petitions after your first one will likely be
considered successive. A second or successive petition

by Loren Rhoton, Esq.

may be dismissed if a judge finds that it fails to
allege new or different grounds for relief·and the
determination of the prior petition was on the merits. If it
there is a finding that your petition is successive, you will
need to respond by filing a response setting out why your
petition should not be dismissed as a successive petition.
The Appendix of Fonos to the Rules Governing Section
2254 Cases provides a form to use for this purpose entitled
Petitioner's Response as to Why His Petition Should Not
Be Barred Under Rule 9.
When you file your 2254 .petition it is very
possible that it will be assigned to a magistrate judge'
instead of a federal district court judge. Title 28 U.S.C.
§636 (bXIXA) authorizes the district judge in habeas
corpus cases to appoint a magistrate judge to consider your
2254 petition. While the magistrate judge does not have
the power to render a final and binding decision on your
. case, he or she will submit to the court proposed fmdings
of fact and a recommendation for a disposition of your
case. Once a report and recommendation is issued by the
magistrate judge, the parties to the case have 10 days from
the date of the report to file objections with the district
judge. If such objections are filed the objecting party may
receive a de novo review of the petition. As is provided in
Rule 8(b)(4) ofthe Rules Governing Section 2254 Cases in
the United States District Courts: «A judge of the court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations
to which objection is made. A judge of the court may
accept reject or modifY in whole or in part any findings or
recommendations made by the magistrate judge."
Therefore. if there is a report and recommendation from a
magistrate judge in your case that is not to your advantage,
then any harmful aspects of the report and recommendation
should be objected to within' ten daYs: In addition to
obtaining a de novo review of the issues, this also serves to
preserve your objections for appeal. Generally, in the
Eleventh Circuit Court of Appeals for the United States, a
petitioner must object to the magistrate's report and
recommendation in order to preserve the issue for appeal;
However, this only applies if the magistrate judge

10----

_

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

infonned the parties of the need to object within ten days. .
See Wiley v. Wainwright. 709 F.3d 1412 (11 1b Cit. 1983).
Thus, it is the best practice to always file written objections
to the magistrate's report. It will obtain a de novo review
. of the issues and facts and will preserve your right to
pursue your appeal ifnecessary.
There are numerous issues that can be raised in a
2254 petition. Of course, as was discussed in my last
article, it is vel)' important that you first exhaust these
issues at the State level before raising them in your 2254
petition. (See "Post Conviction Comer" in March-Apri~
2002, FPLP). Because the potential issues that can be
raised in a 2254 are so varied, there is no possible way I
could provide an exhaustive list of such claims. Therefore,
I will merely try to give some examples that I hope will be
helpful. Of course the best places to look for issues to .
present in your 2254 petition are in your direct appeal and
any state post conviction motions that you have filed. Any
issues of a constitutional (federal constitution) nature that
have previously been raised will be ripe for consideration
in your 2254 petition. The following are examples of
issues cognizable in 2254 proceedings:
*Jwy InstJUctions- Thomas y. Kemp, 800
F. 2d 1024 (Illb Cit., 1986); and, ~
v. Kemp, 762 F.2d 1449 (11 1b Cir. 1985).
*Counsel's Failure to Investigate CaseSee, Futch v. Dugger, 874 F.2d 1483 (I lib
Cit. 1989); Aldrich v. Wainwright, 777
F.2d 630 (lIth Cit. 1985); and, Code y.
Montgomety, 799 F.2d 1481 (lIth Cit.·
1986).

Perspectives - - - - - - - - - - - - - -

*Issues relatingtoJurv Selection- See,
Amadeo v. zant, 486 U.S. 214 (1988); and
Coleman v. Kemp, 778 F.2d 1487 (l1 1b
Cir.1985).
* InvoluntIUy Statements to. Law
Enforcement- See, Christopher v. Florida 824
F2d 836 (lllb Cit.l987); and, Cervi v.
K!mm. 855 F.2d 702 (l1 1b Cir. 1988).
'
*Claims Relating to InvoluntaJy PleasU.S. v. Loughery, 908 F.2d 1014 (D.C.
.
Cit. 1990); and, Garmon y. Lockhart; 938
F.2d 120 (8th Cit. 1991).
There are many more issues that can be raised in a·2254
petition. therefore, I recommerid that you not limit yourself
to the above issues. I also recommend that you not fall into
the trap of thinking you did not preserve your
constitutional issues at the State level because only State
law was referenced in your briefs or motions. Just because
federal case law was not cited, it does not mean that you
did not raise the constitutional issue in the State COUlts. As
long as the constitutional question was addressed, then
your issue was raised and exhausted and is ripe for federal
review.
In my next issue I will be addressing the appeal
from the denial of a 2254 petition and the RW'SUit of a
certificate of appealability for pennission to appeal your
case. In the meantime I wish my readers good luck with
their post conviction pursuits.
Loren Rhoton is a member in good standing with the Florida Bar
and a Member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton Practices almost exclusively in the post conviction/appellate
area ofthe law. both at the State and Federal level. He has assisted
hundreds ofi"carceratedpersons with their cases and has
numerous written appellate opinions. 0

*Ineffective Assistance of CounselStrickland v. Washington 466 U.S. 668
(1984); and Smith v. Dugger. 911 F.2d
494 (Illb Cir. 1990).
*Ineffectiveness of Appellate Counsel.
Evins v. Lucey- 469 U.S. 830 (1985); and,
Mayo v. Henderson, 13 F.3d 528 (2ad Cit.
1994).

Florida Prisoner's Litigation Manual
*Prosecutorial Misconduct- Troedel v.
Dugger, 828 F.2d 670 (11 1b Cir. 1987);
and, Brown v. Wainwright, 785 F.2d
1457 (lllb Cit. 1986).

InflT1l1ati01l. on Prison Discipline
Mandamns & Appellate Review
A MUST HAVE FOR FLORIDA PRISONERS

*Issues Relating to the Defendant's
Competency to Stand Trial- See Wallace v.
.
~ 757 F.2d 1102 (1 lib Cir. 1985);
and Strickland v. Francisu, 738 F.2d 1542
(I lib Cir. 1984).

Only $24.95 + $3.95 S&H ALBERT PUBLISHING CO.
P.O.BOX 30280 PMB 111 PHOENIX. AZ 85046- 0280

11

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Worldwide
Executions
Almost Double In 2001
According to statistics released by
Amnesty International. during April
2002, the number of government
executiOns
worldwide .. almost
doubled in 2001 compared to 2000.
The increase was attributed to an
increasein~mmonsinOilim. The
Amnesty report noted that 3,048
people were ~ecuted in 31
countries, up from 1,457 in 2000.
China led all other 'COuntries in the
number of executions in 2001,
reporting 2,468 executions, up from
1,000 executed in 2000. China's
increase in executions was credited
to crackdown on crime, including
execution of thieves and col1Upt
government officials.
The U.S.
executed 66 people 'in 2001, the
lowest number since 1996.

a

Innocent Man Dies in
Prison
MARYLAND
DUring April
Baltimore prosecutors admitted that a
man convicted of a murder in 1991
and who died in prison in 1995' was
innocent.. Henry Roberts, who died
of heart failure at· age 65, had
maintained his innocence in the
death of his nephew. The case was
reopened two years ago, and a judge
has now accepted a guilty plea for
the murder from another man.

Installment Plan Prison
Terms
MINNESOTA - A state Sentencing
Guidelines Commission is reviewing
a proposal for some prlsonelS to do
their sentences on an. insta11meat plan
as an alternative to the state's current
sentencing scheme. The idea started
with a rura1 trial judge who decided
to try something different with repeat

Perspectives - - - - - - - - - - - - -

DUI offenders.
Instead of one
Innocent on Death Row
continuous prison term, Isanti
NEW YORK - A federal judge in
County District Judge James Dehn.
New York .said he will declare the
imposed
staggered terms
of
federal
death
penalty
incarceration.
Offenders were
un~onal
~ess
the
sentenced to serve one-tbird of their
government explains why so. many
time immediately, one-third a year
condemned prisoners are now being
later, and one-third a year after that.
~onerated.
Federal Judge Jed
In between those terms, if the
Rakoff' said innocent people are
offenders could show reform, they
being sent to death row "with a
could have the remaining term· frequency far greater than previously
vacated. However, any violation . supposed."
during the terms resulted in
[Source: USA TODAY, 4/26/02]
incarceration for the remainder ofthe
sentence. Of the 60 cases that' Judge
Dehn sentenced in that inanner, only
All Prisoners to Provide
3 offenders had committed new
DNA
offenses over a four-year period.
WASHINGTON - New legislation
Judge Dehn bas considered this type
was signed into law by WA. State
sentencing for other crimes.
Gov. Locke that requires· DNA
samples t9 be taken from every
prisoner in the state. both· those in
Nationalize
Death
prison and in jails. WA currently has
Penalty
a DNA database of 30,000 felons.
While the U.S. Supreme Court is
The new law will affect an additional
taking yet another look at the death
20,000. Virginia recently enacted a
penalty in the U.S. (See ''Wheel of
similar law.
Death," FPLP Vol. 8, Iss. 2),
[Source: AP, 413/02]
Attorney General John Ashcroft
continues his death penalty crusade.
According to a recent article in Time
Prison
Barbershops
magazine,
Ashcroft
recently
Unregulated
overruled recommendations from the
CALIFORNIA
- At a news
U. S. Attorney in Brooklyn, N. Y., as
conference
held
in
So. Los Angeles
well as from his own committee of
during
March
AIDS
activists,
lawyers who review death-eligible
supported
by
Rep.
Maxine
waters,
cases, and instead decided to seek
announced
the
filing
of
a
class-action
capital.punishment for Emile Dixon,
federal lawsuit seeking a ban on the
an alleged drug kingpin. This is the
state's prison barbershops using
twelfth time since he took office last
unsterilized
clippers. The activists
year that Ashcroft bas ordered the
claim
thousands
of prisoners have
death penalty be applied when local
been
exposed
to
HIV or hepatitis
U.S. prosecutors did not seek it,
because
of
\Ulsanitary
barbering
according to the Death Penalty
practices.
State
law
in
CA
exempts
Resource Council, a network of
the
prison
system
from
sanitation
lawyers
who
defend
capital
regulations.
defendants. Kevin McNally, a death[Note: Florida has similar laws
penalty defense expert, believes that
~empting
prisons
from
the
there appears to be an aggressive
sanitation requirements that must be
attempt, spearheaded by Ashcroft, to
observed by barbers for the publicnationalize the federal death penalty.
ed]
[Source: Time magazine. 4/22102]
[Source: Los Angeles Times, 3/12102]

12----------------

- - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - , . - - - - - ~~

;.-,.:.~

I

&_H_A_Y_M_".A_N_,_P_eA_e_11

1_,_RH
__O_T_O_N
__

LOREN D.RHOTON
Attorney At Law

:"D~

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!~U

r'·:=,!

POST CONVICTION
ATTORNEY. ,
k;;·:,:;;'·~~·~h:~~i·~);:'JjL~:·:· :~:"~ :/." :<~~.;'~ Lil;ji;.JiJ1iiJiji;\;L:1ii)~,A~fii{lt>li~61i/~}~·~i~·::~>~·L~~; ··:L~>,·:~·~~<~~[l ;~:~~:{>: ~':i;~:L~;p;, ~"~

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DIRECT APPEALS
'STATE POST CONVICTION
SENTENCE CORRECTIONS
FEDERAL PETITioNS FOR WRIT
OF HABEAS CORPUS
NEW TRIALS
INSTITUTIONAL TRANSFERS

/

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412 East Madison Street
Suite 1111
Tampa Florida 33602
(813) 226-3138

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a'.

!~~(I;IlI;j.
he hiring of a lawyer is an important decision that should not be based solely on advertisements.
.. '. ~fore you decide, ask us to.s.egclyou fr~ writtell. iJ:IJQrJ~~tion abq~t~ur gu~".fi~«9~;';, .

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"'.1

rJ,;::~~jj<\j.;...::.../' J~;~~:.6·~~ :.~:_ :.-;.: '. 2- '_'~.: _.'~, .." ,.;; ~,'. ~i:",'L...:L~; ~ .~ ··~~~~~i2i ).·1\;:J··:·(~~~0S:·l)..J1':i/.lil!(b ;~_0~~. ~.~~~·: ~lli.r,Jj·'~··\! ·/i-\"r~·:,,/ ·fjj~iii:2~·;iM·I:l' ~' .:.(, .
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•

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- - - - - - - - - - - - - - . FL!,RIDA p,RISON LEGAL

Perspectives - - - - - - - - - - - - - -

The following are summaries of recent state and federal cases that may be useful to or have a slgnifi~nt impact on Florida
prisoners. Prisoners Interested In these cases should always read the full case as published In the Florida Law Weekly (Fla.
L. Weekly); Florida Law Weekly Federal (Fla. L. Weekly Fed.); Southern Reporter 2nd Series (So.2d); Federal Supplement
2nd Series (F.Supp.2d); Federal Reporter 3rd Series (F.3d); or Supreme Court Reporter (S.Ct.).

UNITED STATES COURT OF
APPEALS

DuPree v. Palmer, IS Fla. L. Weekly
Fed. C 348 (11 th Cir 317/02)
William DuPree, a state
prisoner, appealed the U.S. District
Court's order dismissing his civil
rights complaint filed pursuant to 42
U.S.C. Section 1983. The District
Court dismissed the complaint under
the three strikes provision of the
Prison Litigation Refonn Act
(pLRA) found in 28 U.S.C. Section
1915 (g).
On appeal DuPree argued
that the District Court erred when it
denied informa pauperis status and
dismissed the complaint. Once the
District Court denied' DuPree leave
to proceed infonna pauperis, he
attempted to revive the complaint by
paying the filing fee. This effort
failed.
The 11 th Circuit held that the
proper
procedure
in
this
circumstance was for the District
Court to dismiss a complaint without
prejudice when it denies a prisoner
leave to proceed infonna pauperis
pursuant to the three strikes
provision of section 1915 (g). The
prisoner does not have the option to
seek informa pauperis ~ then, if
denied, pay the filing fee to keep the
case alive. The prisoner subject to
the three strike provision must pay
the full amount at the time he
initiates his suit.
United States v. Vangates, IS Fla. L.
Weekly Fed. C 454 (I lib Cir 4/8/02)

~ issue in ~ appeal was
whether certain statements made by a
correctional officer we~ protected
under the Fifth Amendment to the
Constitution and· Garrity v. New
Jersey, 385 U.S. 493, 87 S.Ct. 616
(1967).
Specifically, Vangates
contended that her conviction for
deprivation
of
a
prisoner's
constitutional rights under color .of
law and obstruction ofjustice should
be overturned because the district
Court erroneously concluded that her
testimony from a previous civil trial
was admissible in the criminal
proceeding. The Eleventh Circuit
rejected this fonner correctional
officer's argument and affinned her.
conviction.

[Comment: Vangate5' conviction
arose from her participation with
other corrections officers, Srigetta
Mas and RenaSymonette, who in
concert with each other, physical
beat prisoner Novelette Hamihon in
a South Florida Detention Facility.
In the civil case a settlement was
reached during trial.]
UNITED STATES
COURTS

DISTRICT

Wilson v. Moore, IS Fla. L. Weekly
Fed. D 211 (N.D. Fla. 216/02)
Florida
Prisoner
Jason
WIlson field a civil rights complaint
against DOC officials alleging that
FDOC Procedure Directive 503.001,
which provides guidelines for Native
American religious observances,
violates his First Amendment right to

freely exercise his religious beliefS
and violates the Equal Protection
Clause
of
the
Fourteenth
Amendment. Wilson further alleged
that the Procedure Directive violates
the Religious Land Use and
Institutionalized Persons' Act of
2000. Pub. L. No. 106 - 274, 114
Stat. 803, codified at 42 U.S.C.
Sections 2000Ce, et seq, (hereafter.
referred to as RLUIPA).
Prison official moved to
dismiss the complaint on the grounds
that: (1) Wdson failed to exhaust
administrative remedies as to some
ofhis claims, (2) some claims are not
ripe for judicial review because
Wilson lacks standing to argue those
claims, and (3) some claims are
barred by the statue oflimitations.
The District Court reviewed
the Magi$trate's Report and
Recommendation and decided to
adopt the report, which granted
DOCs motion to dismiss in part, and
denied in part.
Because of the
complexity of this case and the space
constraints of this section, any
prisoners who have been hindered
from
practicing their Native
American religion should read the
above case. The RLUIPA required
prison officials to do more to
accommodate the religious need of
prisoners. It will benefit all religious
prisoners to become familiar with
this Act.

Wilson v. Moore, IS Fla. L. Weekly
Fed. D 215 (S.D. Fla. 211102)
Florida Prisoner James
Wilson sought habeas corpus relief

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-from his conviction for indirect
criminal .contempt of court on the
gro1D1d that it violated his First
. Amendment right to freedom of
speech:
The indirect criminal
contempt charge stemmed from a
letter he wrote to his trial judge who
had recused himself prior to
sentencing. The letter was sent after
the recusal and sentencing but during
the pendency of the direct appeal for
his original criminal convictions.
The letter contained profdne

statements.
The District Court adopted
the Magistrate's
Report and
Recommendation that recommended
the petition to be granted as to the
claim that indirect criminal contempt
conviction was entered in violation
ofpetitioner's First Amendment right
to freedom of speech. The Court
reasoned that the State court's failure
to apply more stringent clear and
present danger test to the facts of the
case was c:01rtrary to, or involved an
unreasonable application of clearly
established federal law as detennined
by the U.S. Supreme Court. Thus,
the indirect criminal contempt
conviction was vacated.
Eleventh
Circuit
The
instructed courts that· when faeed
with out-of~urt speech that is
critical of the judiciary. the courts
must follow the Supreme Court's
precedent, which requires a more
substantial showing than that the
speech tended to or was calculated to
embarrass a judge.
noridaSup~eCourt

Winkler v.Moore, 27 Fla. L.
Weekly S 373 (Fla. S.Ct. 4/25/02)
lu Gomez v. Singletary, the
Florida Supreme Court addressed
gain time in context of prisoners who
were never awarded certain types of
overcrowding credits. but should
have been awarded such credits.
This case is a continuation of Gomez.
Only three groups (Groups 3,4. and
5) were actually represented by

Perspecbves - - - - - - - - - - - - - -

Gomez, and the Court declined to
address the remaining groups (1,2,
and ·6). In this case, Mark Wmlder,
Christopher Hall. and James Cross
represent the remaining groups.
'In sum, the Court provided
no relief to Winkler or Hall, but did
grant relief to Cross. The breakdown
of the offense dates and the type and
amount of gain time credits are as
follows: Group One: Offens" dates
must fall between June 15, 1983 and
June 30, 1985. Emergency' Gain
Time at 98 percent of lawful
capacity. Total possible· relief: 0
days: .Group Two: Offimse dates
must fall between July I, 1985 and
June 1. 1986. Emergency Gain Time
at 98 percent of lawful capacity
(defined as 133 percent of design
capacity). Total possible relief 720
days. (Phase One: 330 days, Phase
Two: 390 days). Group Six: Offense
dates must fall between September I,
1990 and June 16, 1993. Provisional
Credits at 98 percent of lawful
capacity (defined as 133 percent of
design capacity).
Total possible
relief. 822 days.
[Comment:
This case is very
convoluted and in order to determine
your eligibility for these additional
awards you should consult an
attorney or a law clerk within your
institution.]
Comer v. State. 27 Fla. L. Weekly

S 245 (Fla. S. Ct. 3/14/02)
Florida prisoner Sean Comer
sought habeas corpus relief in the
Florida Supreme Court arguing that
Florida's 85 percent statute was
unconstitutional. Comer based his
argument on recent Supreme Court
decisions: Thompson v. State. 750
So.2d 643 (Fla. 1999); Heggs v.
State, 759 So.2d 620 (Fla. 2000); and
Trapp v. State, 760 So.2d 924 (Fla.
2000). The Supreme Court ruled,
contrary to Comer's assertion,
nothing in Thompson or Heggs
indicates or holds that chapter 95294 (Laws of Florida enacting the 85

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _'15

percent provision) is invalid under a
single subject analysis..
In Thompson, the Court
concluded that chapter 95-182, Laws
of Florida, violated the single subject
requirement
of
Florida's'
Constitution and held it to be invalid
in its entirety. Section 2 of the
invalidated law would have only
amended section 775.084, Fla. Stat.,
to provide that the newly created
category of offenders denominated
"violent career criminals" would be
required to serve 85 percent of their
sentences. The time window for
challenging the application of 95-t82
was opened on October 1, 1995 and
closed on May 24, 1997. See. Salters
v. State, 758 So.2d 667 (Fla. 2000).
In Beggs, the Court
concluded that chapter 95-184, Laws
of Florida also violated the single
subject requirement and J1eld it to be
invalid. Section 26 ofthe invalidated
law only amended the principle gain
time statute (994.275) to generally
clarify which version ofthe gain time
statutes should apply if an inmate
had multiple sentences &bm dift'erent
years. Nothing in the law required
prisoners to serve 85 percent of their
sentences. The time window for
challenging the application of 95-184
w~s opened on October I, 1995 and
closed on May 24. 1997. See, Trapp
v. State. 760 So.2d 924 (Fla. 2000).
While the provisian relating
to serving 85 percent of. sentences
imposed
for
"violent
career
criminals" created by chapter 95-182
is clearly. null and vOid after
Thompson, nothing in this section
effects the law regarding the service
of 85 percent of sentences for other
offimders. The general provision that
created the requirement for seniing.
85 percent of a sentence imposed
was enacted by chapter 95-294,
section 2. And this enactment is not
unconstitutional.
Hunter v. State, 27 Fla. L. Weekly S
284 (Fla. S.Ct. 3128/02)

The Supreme Court

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- - - - - - - - - - - - - FLORIDA PRISON LEGAL

addressed yet another constitutional
challenge to the Prison Releasee
Offender Act on the grounds that it
violates the prohibitions against
double jeopardy and cruel and
unusual punishment.
The Court
determined there was no merit to this
latest attack and upheld the
constitutionality ofthe PRRA.
Major v. Slale, 27 Fla. L. Weekly S
269 (Fla. S.Ct. 3/28/02)
The Florida Supreme Court
has ruled that neither the trial court
nor trial counsel has an affirmative
obligation to advise a defendant that
a plea in a pending case may have
sentence enhancing consequences if
the defendant commits a new ~
in the future. In so holding, the
Court reaftinned an earlier decisioo
rendered in Slale v. Ginebra, 511
So.2d 960 (Fla. 1987), which held
that neither the trial court nor trial
counsel has a duty to inform a
defendant of couateral consequences
ofhis guilty plea.
FLORIDA DISTRICT COURTS
OFArPEAL

Heard
v.
Florida
Parole
Commission, 27 Fla. L. Weekly I)
637 (Fla. 2d DCA 3/20/02)
Florida prisoner William
Heard petitioned the First District
Court of Appeal for a writ of
certiorari to review an order entered
by the circuit court upholding the
revocation of his parole by the
Florida Parole Commission. The
First DCA concluded that the circuit
court bad departed from the essential
requirements of the law by: 1)
treating Heard's habeas corpus
petition as
petition for writ of
mandamus and requiring him to pay
a filing fee. and 2) exercising
jurisdiction of Heard's habeas
petition even .though ,Heard is
incarcerated in a county within. a
different judicial circuit.
The First DCA cited its prior
precedent that revocation of an early
release from prison under the terms

a

Perspectives - - - - - - - - - - - - -

and conditions of an early release
In his habeas p¢tion, Meyer
program is properly filed in a petition
sought to be returned to Kansas to
for writ ofhabeas corpus. Gillard v.
serve his sentence. ThB DCA denied
Florida Parole Comm'm, 784 Sc.2d
certiorari on the premise that the
1214, 1215 (Fla. III DCA 2001).
circuit court lacked jurisdiction to
consider or even grant Meyers the
Further. a petition for a writ of
reliefhe requested.
habeas ,corpus is ~ona~
exempt from all court costs and filing
'Under
the
Interstate
fees. Stanley v. Moore. 744 Sc.2d
Corrections
Compact,
Florida
1160. 1161 (Fla. 111 DCA 1999). ~
Cometions officials act only as
to proper jurisdiction, the petition is
agents for the state
Kansas. and
the Florida court, lacks jurisdiction
~ be' filed in the circuit court having
jurisdiction over the county in which
over the length of incarceration or
whether that incarceration is served
the prisoner is currently incarcerated.
Gillard. 784 So.2d at 1215. Thus,
in Kansas or Florida. However,
,
because Meyer also alleged that
the case should have been transferred
to the proper circuit court within
Florida was not complying with the
Hamilton County where Heard was
terms of the Compact, the Florida
incarcerated when he filed his action.
courts could exercise Mandamus or
injunctive
relief
to
require
Dukes v. State. 27 Fla. L. Weekly D
compliance. But Meyer had not
503 (Fla. III DCA 3/1102)
sought such relief.
The DCA
In constitutional challenge
instructed Meyer to seek mandamus
to the 10/201lifestatute (775.087 (2)- . or injunctive relief in the circuit
(7). Fla. Stal), which required
court.minimum mandatory terms of
imprisonment for the use ofa firearm
in the commission of a felony, the
First District Court of Appeal ruled
the statute did not violate the
separation of powers doctrine nor the
How executions stack up
single subject requiremeot .of the
Since capital punishment was reinstatFlorida Constitution.
See also,
ed in 1976, there have been 769 execuNelson v. State. 27 Fla. L. Weekly D
dons In the USA. States with heaviest use
ofthe death penalty:
548 (Fla. 4t1l DCA 3/6102) (same).

or

a

---......----

[Note: The 10/2011ife statue is not to
be confused with the three strikes
statute,
which
was
found
unconstitutional by the Second
District Court of Appeal in Tay(or v.
State, 27 Fla. L. WeeklyD 250 (Fla.
2d DCA 1/23/02).]
Meyer v. Moore, 27 Fla. L. Weekly
D 764 (Fla. 2d DCA 413/02)
Kansas
prisoner.
Jack
Meyer. who is serving his Kansas
sentence in the sate of Florida
pursuant to the Interstate Corrections
Compact, section 941.56, Fla. Stat.•
sought certiorari to obtain .appellate
review of the denial of his petition
for writ ofhabeas corpus.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16

~Thxas:264
~ VJTginia: 85
~ Missouri: 57
~ Florida: 51

~
~

Oklahoma: 50
Louisiana: 26

In that same period. 100 convicts on
their Wl:J to the death chamber have
been released after being found to have
been wrongly convicted. States with the
most such mistakes exposed:
~ Florida: 22
~ Illinois: 13
~ Oklahoma: 7
~Thxas:7
~ArIzona:6
~ Georgia: 6

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_ _ _ _ _ _ _- - - - FLORIDA PRISON LEGAL

Perspecbves - - - - - - - - - - -

MICHAEL V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATION
The Law Offices of Giordano & Luchetta
412 E. Madison Stree~ Ste.824
Tampa, Florida 33602
(813) 228·0070
(813) 221-2603 FAX

A STATEWIDE practice specializing in Post-Conviction
Relief on both the State and Federal levels:
**EXEC~ CLEMENCY**

**PAROLE**
** DIRECT APPEALS **
** HABEAS CORPUS**
** POST-CONVICnON RELIEF **
*INEFFECTIVE COUNSEL
*WITHDRAWAL OF PLEA
*ILLEGAL SENTENCES
*ACTUAL INNOCENCE
*I.N.S. DEPORTATION

I am a fonner Assistant State Attorney (Felony Division Chief), Assistant Public
Defender (Lead Trial Attorney), and member of the faculty at the University of
Florida College ofLaw. I have devoted over24 years to the teaching and practice of
criminal defense law, and I .am an author of a text· on federal practice in the
Eleventh Circuit. The major thrust of my practice has been post-conviction
. oriented. There is approximately 70 years of combined experience in my office,
including that of a fonner Assistant United States Attorney. I do not believe you
can find more experienced representation in the State ofFlorida or elsewhere.

_.:....-------------17 - - - - - - - - - - - - - -

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

WRITING TO
WIN
by Bob Posey
ost people don't think
about writing very much.
It's something that was
learned in school, or at least enough
to get by, and then later taken for
granted as
it's
only done
infrequently.
Ordinarily, after
leaving school, the average person
may write a letter now and then,
make up a list for something, or have
to fill out a form every once in a
while. . Unless your job is one that
requires you to write, it's not
something that you ordinarily do
very often. That can be a problem
when circumstances change and
sudd~y you are faced with having
to write more often. That is often the
case once a person goes to prison.
There, you will be faced with having
to write more. You write more
letters to stay in touch with people on
the outside. You often have to write
requests and grievances to prison
official to obtain information or to
deal with problems that may arise.
And, it you are unable to hire an
attorney and wish to challenge your
conviction or sentence, you will be
faced with a Jot more writing, often
more than you have ever done before
in your life. One notable thing about
legal work, it generates a large
amount of paperwork. That is when
you need to go back to "school" and
realize that writing is a skill, an
important one, that you can always
learn to do more effectively. In fact,
in such a case, your very freedom
may depend on it.
WIthout having a reason to
remember, most. people forget a lot
of what they learned in school about
writing. You may remember the
terms for words that English teachers
tried to drill into you, terms like:
nouns, pronoWlS, verbs, adverbs,
modifiers,
adjectives,
and
conjunctions. But how much ofwhat
those tanns mean have you retained?

M

PerspectIves - - . . . . . , - - - - - - - - - - -

And then there are sentence and
paragraph construction, simple and
complex sentences, the thesis
sentence, punctuation, and word
choice, all part of a knowledge
intended to teach you how' to
communicate in writing more
effectively. If you have forgot most
of that teaching, and ignore brushing
up on it when faced with the
daunting task of legal writing, you
are making a serious mistake.
Generally, the pwpose of
legal writing is to persuade a court to
rule in your favor on an issue. To
compound the problem, you are
going to be opposed by one or more
writers on the opposite side who are
attorneys and whose careers are
intimately tied to the art of writing.
You may think you know how to
write good enough or that it doesn't
matter how well you write. You may
think the court must and will take
into account that you are not a
lawyer and give you more leeway in
your legal pleadings. That ideal has
even been expressed in a few court
cases in the past. In Haines v.
Kerner, 404 U.S. 519 (1972), a more
liberal U. S. Supreme Court than
eXists today, stated, in effect, that pro
se prisoner legal p'eadings must. be
held to less stringent standards than
formal pleadings drafted by lawyers.
The reality, however, is a different
story.
Most judges have little
patience with prisoners trying to
litigate. You have several strikes
against you, as far as most judges are
concerned, just being who you are.
If you add to that poor writing skills,
your pleadings are not going to be
seriously considered.
Any effective prison litigator
will tell you that you can learn all the
court rules, how to do legal research,
the form for pleadings, etc., but when
it comes down to it, good writing
skills are essential. You may have
all the law on your side, but if you
can't effectively communicate in
writing, the odds that you will
receive the entitled relief are
drastically reduced.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ 18

Writing, any writing, should
flow. If your writing flows, it is
smooth and easy to read; its logical
and organized; it has an obvious
beginning, middle, and end; an~ it is
more likely to catch and hold your
reader's attention. To achieve that
flow, most experienced writers
approach a Writing job in three
stages. They are: planning, drafting,
and revising.
Planning
If you plan your writing
ahead of time, you can make it easier
to read, more understandable, more
interesting, though-provoking, and
actually easier to write. Begin your
planning with thinking over the
writing you have to do. Give some
thought to the following:
• Subject. What is the subject or
issue that you intend to write about?
How broadly or narrowly do you
need to cover the subject or issue? Is
there more than one subject or issue,
and if so, will your writing be clearer
to your reader if each subject or issue
is handled as a separate section
within your overall writing?
• Information Sources.
What
sources of information will you need
to do the writing? Do you have the
documentation that you will need to
refer to? Have you researched the
subject or issue and do you have
your notes from that research bandy?
• Purpose. Are you writing to:
inform . readers~ persuade them,
obtain some action, or a combination
ofthose pwposes?
• Audience. Who are your readers?
How much do they already know
about your topic? How interested
will they be? Will they resist or
oppose what you write? How much
time do they have to read your
material?

...:....-

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- - - - - - - - : - - - - - - - - FLORIDA PRISON LEGAL

• Length. Can you write as much
as you want or are there page
restrictions that apply?
• Forma(. Is there a particular
format that you must use? If so, do
you have guidelines or examplQS that
you can·consuh?
• Deadline. Is there a deadline for
the writing to be finished? How
much time will you need for each
stage of your writing?

Before starting to write
something that will cover several
ideas, topics, issues, or sections, it.is
useful to create an outline or guide
for what you intend to write. There
are several ways to do that. You can
make a list, use what is termed the
branching technique, ask yourself
questions, and even use freewriting.
To make an outline list, write
down ideas about what you are going
to write or need to cover in the
writing as the ideas come to you.
Once on paper, you are free to
rearrange the ideas, add to them,
delete from them, place them in
order so you can see how you will
start, what is going to be needed to
be covered in the body and in what
order, and how you can sum it all up
at the end. Make such a list for each
section ofyour intended writing.
The branching technique is a
little more formal than just making a
list, but does not need to be any more
difticuh. Write the main idea at the
top ofa blank sheet ofpaper and then
list major supporting ideas beneath it.
Leave plenty of space between ideas
in case you need to add new ideas as
you go. To the right of each major
idea, branch out to minor ideas,
drawing a line to each minor idea
cxmnected to the specific major idea.
Continue doing that for each major
idea that you have listed. If a minor
idea leads to even more specific
ideas, list them to the right of the
minor idea and connect them to the
minor idea with a drawn line. You
can use the branching technique for

PerspectJ.ves - - - - - - - - - - - - - -

several .main ideas, sections, topics,
or issues, using a separate sh~ of
.paper for each. Creating a branch
diagram is an excellent way to get a
visual outline of the points that you
intend to write about and helps you
organize those points in order of
importance..
You can also use written
questions to yourselfto help plan and
organize' your writing. For example,
news journalists are' taught to
routinely ask themselves. Who?
What? When? Where? Why? ,And
How? when gathering material for a
story. In addition to helping them
get· started, these questions .ensure
that they will not overlook important
facts.

Freewriting is another way to
Instead
of an informal or formal outline,
simply write the thoughts that come
to you about the topic. Don't worry
about word choice, spelling, or
m~g.
Just get your thoughts
down on paper. The point is to relax
and break the ice on writing about
the topic. This, of course, is only
very rough writing, but out of it there
may emerge ideas on how to
organize your writing or a line of
thought worth following up on.
Whichever outline method
. you use, taking the time to prepare an
outline is never wasted time.
Outlines help to organize and focus
your writing, lessens the number of
drafts that you may need to write,
and gives you a visual guide for your
writing.
get your writing organized.

Drafting
When you begin to write
your initial draft keep your planning
materials-lists, branching diagrams,
questions
and
answers,'
or
freewritin.g-elose to hand. . Such
material will not only help you to get
started, they will also help to keep
your writing focused and moving.
Writing tends to flow smoother when
there are few stops and starts.

For most types ofwriting, an
introduction . announces the main
point, several body paragraphs
develop that point, and a conclusion
sums up the main point and
supporting body paragraphs. If.you
are writing about several main points
or issueS, consider dividing them into
their :own distinct secti~. . Each
section
will have
its own
introduction,
supporting' body
paragraphs, and conclusion. Do not
jumble topics, issues, or main points
together or jump back and forth
between them. If you do, not only
will your writing be harder, but it
will also be confusing to your reader.
Your introduction is usually
a paragraph SO to ISO words long. A
common strategy is to open the
paragraph with a few sentences that
catch the reader's attention and to
conclude it with a sentence setting
out the . main point that will be
developed in the folloWing body
paragraphs. The sentence setting out
the main point is called the thesis
sentence.
The body p3l\lgraphs are
groups of sentences that support the
main point.
Structure body
paragrap'hs so they are unified,
organized, well-developed, and not
too long or too short for easy
reading.
WIthin each body paragraph,
similar to the introductory paragraph,
there should be a topic sentence as to
what· that paragraph is about. The
topic sentence should be clear to
readers and all other sentences in the
paragraph should relate to it.
Usually, the topic of a body
paragraph will be the first sentence in
the paragraph and the following
sentences are added to support that
topic. Sometimes a topic sentence is
not necessary if the new paragraph
continues to develop a topic from the
last-written paragraph, or if' the
details of the new paragraph
unmistakenJy set out the overall
topic.
The conclusion should relate
back to the main point, without just

19--------~------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

repeating it. In addition to summing
up the main point and supporting

body paragraphs, the conclusion may
also suggest some action or seek to
persuade as to why the main point
should be accepted by the reader.

Avoid' introducing new ideas in the
conclusion or apologies and other
passive endings.
Conclude each
section of your writing that involves
a main point crisply and on a positive
note.

Revising
Once you have your draft.,
you are ready to go to the next stage
in
your
' writing-revising.
Experienced writers rarely view
revising as a one-step process. The
purpose of revising is to tighten up
your writing by going back over it
carefully and making improvements
in sentence and paragraph structure,
word choice, grammer, punctuation,
and spelling.
Do not limit yourself in
revising the writing. It may be that
your first draft is pretty good and
only needs minor revision or
corrections. However, there will be
times when revision can be dramatic
and necessitate dropping or
whole paragraphs or combining two
or three paragraphs into one. Entire
sections may need to be rearranged
for clarity to the reader and to
improve the smooth flow of the
writing. The process of revision
itselfstimulates thought.
One pitfall that you need to
be conscious of during the revision
stage is the natural tendency to
review your writing from your own,
and not from the reader's,
perspective. You bow what you
meant in your thoughts as you were
writing; you have the tendency to
think some details or information
wasn't necessary to include as your
reader will already know those
details or· have that information.
Sometimes that may be true, but
more often what may be obvious to
you is not obvious to your reader.

adding

Perspectives - - - - - . . ; . . . - - - - - - - - -

Remember, you are writing to
explain to or inform the reader, not
yourself. Sometiines it is necessary
to distance yourself from your draft
to achieve the correct objectivity. To
do that, put it aside for awhile,
overnight or even longer. When you
go back to it, try to look at it from
your' reader's point of view. If
possible, have someone else read the
draft and make suggestions on how it
could be made clearer.
The most importarit step in
your writing is proofreading it.·
Proofieading is boring. but critical.
If you have errors throughout your
writing, the. reader is going to n~ce
them and either think you dido't care
enough about the writing to do it
right, so why should 17, or believe
that you really don't know the
subject well that you are· writing
about.
Errors in spelling and
grammer are distracting and
annoying to readers.
Proofreading is a special
kind of readin8. It should be a slow,
relaxed, and methodical search for
errors. Such errors may be difficult
to spot in your own writing because
with the way our minds work you
may "read" what you intended to
write, adding words in your thoughts
that are not actually written on the
page. To avoid that, try reading the
material out loud, speak each word
as it is written. Another technique is
to slowly read the material
backwards, which forces you to
focus on the words instead of their
meaning. You can also use a ruler or
other item to focus on looking at the
words in a single line at a time. Take
your time and try to find and correct
every single error that might cause
your reader to stumble and lose their
train of thought. To correct spelling
and expand the choice of words in
your writing you should always have
a good dictionary and thesaurus
handy.
Good writing skills are not
something that you are born with or
that will naturally come to you, even
if you write a million pages. You

can, however learn them, and with
practice they will become a natural
part of your writing.

This is the first in a series ofarticles
designed to encourage you to thin/c
about fII7d improve your writing
skills. Future artic/~s in this series
will explore other aspects of writing
fundamentals and oJftr practical
suggestions
to
improve
comprehension of legal writing.
research, and analysis. •

PROSECUTORS GIVE UP
ON VALDES' MURDER
STARK-The deeisian was announced May 10 by
a state prosecutor that aU charges would be
dropped against five prison guards who had been
accused of involvement in the brutal SUlIIIping
murder offlOrIda cfeath.row prisoner FIlIIlk Valdes
on July 17, 1999. State Attorney Bill Cervone
dropped second-degree murder charges apinst
fonner FDOC prison guards Andm¥ Lewis, 32;
Monln2 Lucas, 33; Donald Stanford, 53; Dewey
Beck, 54. Charges wen: also dropped apinst
Robert Sauls, 39, who was to be tried for
conspiracy to commit agravatecl battery, battery
on an inmate and om~al misconduct.
The decision to drop charges against the
remaining ,five ofeight Florida State Prison guards
came less than three months after the first three
gwsrds wen: tried and acquitted ofsecond-degree
murder bade in Febnwy of this year. (See last
issue of FPLP).
One of the main reasons cited by Cervone for
dropping the remaining charges was the difficulty
in picking an impllrtial jwy to hear the case in the
area where prisans dominate the economy•. Circuit
Judge Lally Turner, who was elected to the beuc:h
by residents who depend on prisons for their
living, refused to allow the trials to be held in
another location where an impanial jwy could be
found.
FIlIIlk Valdes was on ckath-row for killing a
Palm Beach County prison guard in 1989 during a
botched attempt to help a prisoner escape.
Medic:al examiners testified in the FebNlU)' trial
against Captain Timothy Thomton, 36, lIIId Sgb.
Charles Brown, 28, and Jason Griffis, 29, thlll
Valdes was beaten to death. probably while
handc:uffed and sbackJed. Valdes had fiucaIres of
his sternum, vcrteblll:, nose and jaw, lIIong with
numerous internal injuries lIIId crushed testicles,
and there were boot prints on his fiIce, neck,
abdomen and bllCk.
Cervone said information on the c:asc has been
forwarded to the u.S. Iustic:e Department. :

20---------------

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - - -

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FAMILIES * ADVOCATES. PRISONERS
Onthe Web Now/ ,
'
During June 2002F1orfdiliPrisonerll'Legai Aid Organlzlltfon, Inc. (FPLAO), launched
an exciting and Innovative new website. Over the. next few.w8eKs andrnonths this
site will become 8 major'source of flews, Information, resourCllsand .dvocacy for
florida prisoners and their fllmill~,frI.ncl8, .ndroved ~ ones. Spread the neWs
about:
,

www.fplao.org
News • Resources - Family Issues· Parole • florida prisons· Grass Roots Activism •
FAQ's - Myths & Facts about the florida prison system - Bulleti,n Boards· Telephone
Rate Monopoly - Civil Rights • How To Information • FDOC Rule making • Family
Visitation· Post Conviction News· Parents in Prison· Reports· Inmate Welfare Trust
Fund • Links - Legal Assistance Sources • Upcoming Events - Maintaining Family
Contact - Getting Involved - Abuse Alerts • Interactive Site - Courts & Cases • and
much, much,more.
'

Now Available:
Become an FPLAO member, renew a membership; or make a

donation onOne.

21--------------

FLORIDA PRISON LEGAL

Talkative Prisoners'

Tunnel Found
by David M. Reutter

After seven prisoners at Zephyrhills
Correctional Institution (lCI) were
caught digging a tunnel to escape
from, the FDOC tried to hide its
investigation ofthe incident. The St.
Petersburg Times filed two public
records request with FDOC that went
unanswered. FDOC finally released,
in March 2002, over 500 pages of
documents after the Times filed a
lawsuit. The investigation of the
.escape attempt reveals the verbosity
of the prisoners foiled their plans,
and that lapses in security allowed
them to get close to their objective.
The prisoners, Richard
Seibert, Robert Fennell, Joshua
Knerr, Paul RusseU, Henry Shelton,
Raymond Eldridge, and Mark
Guglielmo, had access to heavy
tools, and thanks to an unlocked gate
and rigged door, aCcess to an old
warehouse on lCI grounds. They
were also fortunate to have a
supervisor who left them alone for
hours at a time, which allowed them
to dig almost daily from I:00 p.m. to
3:00 p.m. The digging was done with
shovels made from old metal fan
blades. They st8rted in the old
warehouse by D donn with a
concrete drill bit, and they cut a
rectangle. in the floor just wide
enough to squeeze through.
While one or two were
digging, the others would watch for
"the man" or hide dirt. The dirt was
put into plastic bags or pillowcases
and hid above air conditioning ducts
in the ceiling. The prisoners dug to 8
nearby mobile classroom structure
with a metal skirting around the
bottom, allowing them to dump aU
the dirt they wanted without
detection. From the structure, only
40 feet away was the woods. The
plan was to escape in April 200 I and
fade into the crowd of the Livestock
Music Festival where one of the

Perspectives - - - - - - - - - - - - - - -

prisoners' cousins would leave a car
stocked ,,:ith clothing and handguns.
Then, on to Tampa to switch cars
and 8 trip to Daytona Beach. But, as
is so usual within the FDOC these
days, someone snitched before the
plan bore fruit.
The snitch, murderer Robert
Pasquipce, informed prison officials
of his knowledge on March I, 200 I.
In return, Pasquince wanted· a
transfer to another FDOC prison
where his brother is serving 2 ~
years. After that, he wanted an
interstate compact transfer to New
Jersey. Pasquince told investigators
he befriended the seven prisoners
while getting a tattoo. Pasquince
said the seven began talking in
riddles about escaping, and they
talked about the "Texas Seven."
They said that group made mistakes
They had
and they wouldn't
considered every detail, even the
clothes they would wear out of the
tunnel: shorts made from sweatshirts
with Nike Swooshes on them.
Evidently, the one detail they forgot
was keeping their mouths shut.
IJ.tvestigators say as many as 10 other
prisoners likely knew ofthe plot.
The investigation revealed
that lax security at ZCI allowed the
prisoners to get within 40 feet of the
perimeter fence. Their immediate
supervisor, who left the seven alone
for hours at a time, said a teacher in
a nearby classroom building was
watching them. The teacher denied
he was ever asked to watch the
seven. In clear violation of FDOC .
policy, no one kept tabs on the tools
the seven Jhad access to. Although
FDOC cited six ZCI staff members
for negligence, all remain employed
atZCI.
FDOC did impose sanctions
on the staff involved. Sgt. Arthur
written
Stowell
received
a
reprimand. Colonel Ronnie Edwards
received a record of counseling to
pay closer attention to his duties.
Paul Bradley, a maintenance and
construction
supervisor
was

suspended for 30 workdays. Albert
Guedes, a temporary worker, was
suspended for IS workdays. FDOC
spokeswoman Debbie Buchanan
admitted the staff's lack of
attentiveness aided the, escape
attempt, but said security and tool
control have been tightened up since
the attempt.
The prisoners, although
certainly receiving a transfer and
close management, had nothing to
lose.
Most were serving life
sentences. As a result, the PascoPinellas State Attorney's Office
decided .not to prosecute because
another conviction would mean
nothing. Had the prisoners truly paid
attention to every detail as they
professed, they had everything to
gain.

•

(Source:
Times,3/9/02.) 0

St Petersburg

RESTORATION OF CIVIL RIGHTS
The American Civil Liberties Union
recently commended the Florida Department
of Corrections for making it easier for felons
who have completed their lime to have their
civil rights restored. But the ACLU will ask
Gov. Bush 10 make the restoration of rights
automatic for felons who SUccessfully
complete all the tenns and conditions of their
sentences.
A
Website
www.staie.O.uS{l.pcJexc!ern.htmlbas a link to
a new application for getting rights restored.
The application no longer requires felons to
obtain certified copies of court records or
. processing by the chief judge or the
prosecutor.
Florida is one of only eight states that
does not automatically restore the right to
vote to fclons who complete their sentences.
[Source: St. Pete Times, 412SI02) :

NOTICE
FPLAO. Inc., recently acquired three new
directors: Oscar Hanson. his wife. Undo
Hanson. and Darrell Blackwelder. All three
bring 0 wealth of experience and knowledge to
Fonner
FPLAO and are very welcome.
director Darryl McGlamery has retired from
~e board of directors and is WIshed the best
In Mure endeavors while thanked for all he
did for FPLAO.

22--------------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

1. PleaSe Cbeck .t One:

3. Your Name and Address· (PLEASE PRINT)
_ _ _ _ _ _ _ _ _ _ _ _ _.DC#

(] Membership Renewal

o

Perspectives - - - - - - - - - - - - - - -

_

Name
New Membership
AgencylLibrarylInstitution IOrg!
Address

2. Select 0/ Category

(] SIS Family/AdvocatelIndividual

City

Zip

State

(] S9 Prisoner
.Email Address and lor Phone Number

(] S30 AttomeysIProfessionals
(] $60 Gov't AgencieslLibrariesiOrgsJete.

4. Additional Donation
I understand that FPLAO depends
on its members to grow and operate
effectively. Therefore, I would like
to make an additional donation of:

FAMIUES ADVOCATES PRISONERS

S10 $25S50 S100 $250 Other
UNITED FOR PRISON REFORM

co- Please make all checks or money orders payable to: Florida Prisoners' Legal Aid Organization, Inc. Please complete the above fonn and send it
with the indicated membership dues or subscription iunount to: Florida Prisoners' Legal Aid Organization Inc.. P.O. Box 660-387. Chuluota, FL
32766. For family members or loved ones ofFlorida prisoners who arc unable to afford the basic membership dues, any contribution is acceptable
for membership. New, unused. US postage stamps arc acceptable from prisoners for mC:lllbership dues. Memberships run one year.

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 fonn. PLEASE PRINT.

If so, please complete the below Jnformation and maD It to FPLP so
that the mailing list can be updated:

NEW ADDRESS (pLEASE PRINT CL~Y)

Name
Address

Name

City

lust.

State

Zip

@

co- Complete and Mall to:
FLORIDA PRISON LEGAL PERSPECTIVES
P.o. Box 660-387, Chuluota. FL 32766

Address
City

State

ZiP.

@Mall to: FPLP, P.O. BOJ: 666-387, Chuluota. FL 32766

23 - - - - - - - : . - - - - - - - - - - -

ADVERTISING NonCE

CONTACTS

PRISON LEGAL NEWS

The Florida Corrections Commissioa is ccnnposcd of aBbI
citizcDs selected by the SO'UUCI' to 01/U'UIe the ~ of
the flgrida Dqm1mcm of Com:cUcns. The Commission
mn:kes ~ons to the gcJ\'cmot nmt stllte legWJUure
canccming IlJ'Oblem lRl1S within the prison system. The
Commiuion wel~mCs iDput &om.1he public ida11ifying
problan iD'C3S. The Commissicm's l1CIivi1ies Cl1D be found on
ds website. ~ Commission is independe:m from the FDOC.

Prlstm Ugal NrwJ is :a 36 p.1ge monthly mnguine which b3s
been published sizlcc 1990. II is edited by WaslJiDlllUD swe
prisoner PmtI Wright. Each issue is pac:bd with summaries
mut :maJysis of recent court decisions &om arcund the countJy
dealing with prisoner rights and written &om 3 prisoner
pcnpcctive. TIl: magazine oftcrl cmms unicles &om
llttomcys gMq flow.to !itigmicm :idYisc. Also inc:Iw!cd in
e3dI issue llJ'C news articles d=lIing wi1h prison-Rl41ed
stnIggle ond l!l:tivism £rom the U.S. l!J1d lUVWtd ~ world.
Annual subsaiption m1cs are StS for priso=s. If you em'l
aff'otd to send SI8 III once. scizd at least S9 lWI PIN \lliU
promtc lire isMs a1 S1.50 cadl (Of a six momb subscriptimJ.
New lind lIDuscd postage stmnps or embossed envelopes lMy
be used M payment.
For non-incln:cnlted individuals, the yc:uty 5lIbsc:ription
me is SB. lnstiMiozml or profc:ssional (attorneys, libr.1rics.
govmuncnt ngcncics, orpizmions) subscriptioa mcs arc
S60 11 Yem'. A wnple copy of PLN is avnilable for SI. To
subscribe to PLN, COl1UCt:
•
PrUtm UgaI News
].100 NW 80th StI'U1
PMBU8

SUBMISSION OF MATERIAL TO

Due to a concern for our members, the FPLP staff
tries to cnswe that advertisers in these pages are
reputable and qualificct to provide the savices being
offemJ. We cannol meet every advertiser, however,
so members are advised to always personally contacl
advertisers for further information on their
qualifications and experience before making a
decision to hire an attorney or other professional
service provider. You should never send legal or
other. documents· 10 an advertiser before contacting
them and receiving directions to send such material.
For those wishing lO advertise in FPLP, please wrilc
for rate information. Address such mail to:
Florida Prison Legal Perspectives
Attn: Advertising

P.O. Box 660-387
Chuluota. FL 32766
Or

Email: FPLP@ao1.com

FPLP

Because of the large volume of mail being
rceeived. financinl considerations, and the
inability to provide individual legal assistance,
members should not send copies of ·legaI
documents of pending or pot£l'ltial cases lO
FPLP without having first c:ontaded the staff
and receiving directions to send same. Neither
FPLP. nor its staff, are responsible for any
unsoliciled mll1erial senl
Members are requested lO aintinue sending
news infonnation, newspaper clippings (please
include name of' paper and eWe),
memorandums, photocopies of final decisions
in unpUblished cases, and potential articles for
publication. Please send only copies of such
ml1lcrial that do not have tQ be returned. FPLP
depends on YOU, its readers and members to
keep informed. Thank you for your
coopemtion and participlUion in helping to get
the news out. Your efforts an:: greatly
appreciated.

FloTlda CO~ctI01U CommwJOIJ

2601 Blair Stone Road
TaIJa1uJSsee. FL 32399-2500
Phil (850) 413·9330
Enroll: jcoTcom@maiLdc.slalejl.us
Websile: http://wwwjcc.stale.jl.usI

Additional:
Jrrnrtlte Bank lriformatlon

Toll Free: (850) 488-6866
Email Addresses:
Gov. Jcb Bush - jeb. bruI@JnyjIOTtda.com
Michael Moore, FDOC -

Sutttle. WA 98i17

see PLNs WebsitD at
IrItp:/iWrtIw.pfUOlt/ega/llewl.org

nrtJOI'e. mJcJuzel@nttJILdc.stI1Je.jl.1Lf

pie!se, cheCk yourm~lIlng;,'lebel;~odetelmihe yourtertn Qf.< ._.
to FPLP.- ~n;
th~-_;tqp nne of the ma.iliiigISbel- will ~~ -. •.da.lei such-.j~;
~~N-o¥04~. That dattt inQieatesthe tl)$t'l.n()gttl arad' yt~r.~~
of' Y9,~r eutten1rnem~ef'$hip with F.=PL;AC>- or ,~'u_ption--~t9::;
f;P~~_ P• • •·t-.kEt-,th!Jirne to compretethe.·en-eiosed-·fO.r:m,:
'~Q ~t"1'ew -your -mtJrtl.biireoipandlor- sUbSQl1pti~n- ,before _tai~:,~
~xP.iratiDn date.
- .
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tn~mbership andlotlaSl' month of SUt)Sctiptioli

'ftt.J.1,-"tred?

,~ngt_daddte$S

NON-PROFIT

PO Box 660-887

U.S. POSTAGE

PAID

Chuluotll PI 32766

OVlEDO.Fl

PERMIT NO. 65

i

1

__, - Moving?

Florida Prison Logo.
Porspoctlv8S

If-so, pr~comprete-,#I,c::]
thai:, the ':membershiiic;

'c"anse' form'$O

roilS-and mailing rlst-cantle-updated. Thank youl

VolumeS 'Ssue:3.-.Mav/Juna2002 _

: .. :~,~<

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