FLORIDA PRISON LEGAL

ers ectives
VOLUME 9. ISSUE 3

ISSN# 1091·8094

FDOC PANICS OVER THREAT
TO PRISON TELEPHONE
MONOPOLY SCHEME
by Teresa Bums-Posey
Recently an Associated Press article that ran in many
newspapers caused a panic among top prison officials in
Florida. The article reported on how the families of
many, prisoners' in some states are getting
around· exorbitantly expensive collect-call telephone
rates from their incarcerated loved ones and how prison
officials are fighting hack to force families to continue
paying the high rates.
The AParticle told the story of Gillian Bennett,
the wife of a prisoner in New York. With the cost of
accepting her husband's collect phone calls soaring and
having become a financial. burden, she had signed up
with one of a growing number of small businesses
around the country that help priso~ers' families skirt the
prison system's expensive rat~. In Gillian Bennett's
case, by signing up with the business she cut her
monthly phone bill from $500 to $50, while accepting
the same number of calls from her husband.
Breaking the Stranglehold
When New York prison officials and their phone
company found qut what she had done to lower her

FAMllJES ADVOCATU PRISONERS

UNl1!D FOR PRISON REFORM

i

MAY/JUN 2003

phone rates. they claimed she had violated prison rules
and blocked all further calls from her husband to her
Albany, N.Y., home. Meanwhile, back at the prison, her
husband was threatened with solitary confmement for
his participation in trying to reduce the rates.
The Bennett's story is not that unique. With
dawning awareness that an increasing number of
families nationwide are turning to' the businesses that
offer cheaper collect-call rates to prisoner's families,
prison authorities and the phone companies they contract
prison phone services to as a monopoly are cracking
down on those businesses and the families that turn to
them for help.
As usual, when their logic is fuzzy on an issue,
prison officials are turning to their catch-all "security
threat" claim in support of their telephone monopoly
scheme that gouges millions of dollars out of prisoners'
families each year in many states. Prison officials
defend the monopolies saying thc;.ir more expensive
phone systems should be the only choice because they
are designed to record or allow calls to be 1t10nitored to
prev~t prisoners from committing more crimes, like
making threats or drug deals over the phone. The
implication is that families and businesses that skirt the
pr!sons' phone monopoly, in any way, are defecting the
prason phone system's security features. That simply is
not true.
The problem for prison officials is a phone
option available to every phone customer today, the
ubiquitous call forwarding. With some variations, it

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FLORIDA PRISON LEGAL

PERSPECTIVES
P.O. Box 666-387'
Chuluota, Florida 32766
Publishing Division of:

FLORIDA PRISONERS' LEGAL AID
ORG.,INC
A SO1(cX3) Non Profit orgariization
Fax (407) 568-6200
Email: fplp@aol.com
Website: www.fplao.org

.FPLAO DIRECTORS
Teresa A: Bums-Posey
Bob O. Posey, CPL
David W. Bauer, Esq.

Loren D. Rhoton, Esq.
Oscar Hanson, CPL
Linda Hanson

FPLPSTAFF
Publisher
Editor
CtHlditor

Research

Teresa A Bums-Posey
BobO. Posey
Oscar Hanson
Sherri Johnson

Administrative Assistant

FPLP ADVISORY BOARD
William Van Poyck
Philip BagJey-Teny Vaughn
Michael Lambrix-James Quigley
LindaOottllcb-8usan Manning
Enrique Diaz-Gene Salser
Michael Palmer·Mark Sherwood
Trish'Mills

FLORIDA PRISON LEOAL PERSPEcnVI!S(FI'LP) it pu!llished
six lilna • )..... by FIori4a 1'riso=I' LcsaJ Aid ~
11IC. (FPLAO~ 15232 East C<llonial DrM, Ortaddo. FL 32826-5134,
mailina 1ll4t<ss: P.O, Box 1160-387, CIwluoIl, FL 32766.
FI'LP it • """ palll puhJlcalion IOcwins on tho florida prison md
CIimioal juJIil:c iystam. . FPLP pmWla • wllide 1'0< .......
info~ lIIld ltSOlIIOa oIlOcIina plis<men. their fOmiIi... fncnds,
loved ones md lho gcnenI puhW: offlorida.
Ileductioll of cr'.mo md recidi'iJm. malnt_ oflhmily Iios, civil
riahU. lmpmw.g COlldlllons of CCl'ofinemeIl1, ptOlllOlina IkilIcd COUJt
acCess for priIoncrt, GIld promoth1s llCCClWIlabiJily of prisoo oftlcialt
&noll i...... tho FPLP is~IO addlas.
FPLP'I_ 1ll0ra0y ~.... 1Uff caanot respond 10 "'llJOIU fot
legal odvicC. Duo to _
ofmollihal it l<CCivaI md vollmt_
IlIlf llmi1ations, oIl eomsponcl.... thol it roceivcd CIIUlOi be
.rcsponcIcd to, bul oIl moll cIoa RICCMo indMduallIlellliM
.
Penniaion Is sraotod 10 reprint material appearing ill FPLP Ihol
cIoa DOl iodicaIc it is· copyriahted pnMded IIlaI FPLP lIIld OIl)'
illcticoted IlI1hor I/'Cl' idcrItlfied 10 tho reprI_1 GIld • copy of tho
pulllieatlcm ill MUdlIIIe m&IaI&I it puhlbhod it proWled to tho FPLP
lip 10

publi$lIa".

1ltc maloNl· 10· FPLP should DOl be relied on U OIIlhorlllllivc
informatioo 10 dW wi1h •
J<sd prohlem.
.
FPLP it 0IIl0lllllicalJy _ to oIl members of FPLAO. IDe.• u • '
membcnhip bene6t. M<mber1IIip du.. fOf FPLAO, IDe.• run 00 •
yatly basi. and .,., S9 fot plis<men. SIS for fiImlly
IlIClIlba1IInclividuals, $30 for lIIOmcysIprofcssiallals, md S60 for
bulinesseslinslillllionsiorsonizatioM Fllmily members or loved 0Ila
ofprisoners who Ir1IlIDIlllo to alford IIIe bosia memhmhip dues may
...ave IDCrIIbenIlip for OIl)' size donation Ih.1lIbcy <a:I olJ'onI.
,ullio_ GIld may IIOl conIIiD dciOlll

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works like this: A prisoner's family member establishes
a phone number near the prison that the prisoner can call
at the local area calling rate, which is usually much less
expensive than a long distance call outside the local area.
The faml1y member then arranges with the phone
company that services the area' where that local number
is eStablished to have all calls· to that local number
(psually Just the prisoner's) forwarded to the family
member's home at a privately negotiated long distance
rate well below the prison system's monopoly rate. The
businesses that families are signing up with to get lower
rates simply do all the work of setting up a system like
that for the families and make a small percentage on the
negotiated forwarded long distance portion of the calls
made.
Contrary to prison officials' claims that such an
alternative setup defeats their special security features,
the local call that the prisoner makes to have the call
forwarded long distance is still subject to all of the
security features applicable to any call that is made from
'the prison - local or long distance - it's just that the
local/forwarded call can be made at a much lower cost to
families that pay for the calls. To tty to block such
setups, however, many prison systems have rules that
prohibit call forwarding on calls made by prisoners.
So if security isn't the'real problem with prison
•
officials, what is it?
According to some estiniates, nationwide the
prison phone business is generating as much as $1
billion a year from prison systems and the phone
companies that they award their monopoly phone
contracts to. Ignoring the burden that extremely high
phone rates piace on families, who pay for the calls,
many prison systems, just like Florida's, give the phone
contract for the system to the to the company that
guarantees to return the -largest commission on calls
made to the Department of Corrections- instead of
basing the contract on a guarantee of the lowest rate for
consumers, that is, prisoners' families. That, in tum,
causes the telephone co~panies to charge the highest
rate allowed by I.aw so they can pay the prison. system
the largest commission to get the contract. (See: FPLP;'
Vol. 8, Iss. 5, "Let's Play Monopoly: Florida's Prison
Phone System", for a detailed report on the prison phone
business in Florida.)
FDOC Overreacts

Less than two weeks after the AP article
appeared in mainstream newspapers; the Florida
Department of Corrections panicked over the thought
that families might learn how to reduce their phone rates.
In April all copies of the magazine Prison Legal News
(PLN), Vol. 14, ,No.4, addressed to Florida prisoners
were impounded and rejected by prison official because

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the magazine carries advertisements for businesses that
offer to help families reduce prison collect-call phone

mUs.

.

Those advertisements, the Department now
claims, "encourages inmates to use phone companies
other than those assigned to the institution by giving
them lower rates and violates the [FDOC's] rules about
using the institutional phone systems. [The ads also]
violates the security of the institutional systems." That
position is rather idiotic where the ads are clearly
directed at families, not prisoners. Prisoners cannot set
up a system to skirt the FDOC's chosen phone company.
It is instructive, however, that the PLN censorship came
only days after the AP article appeared considering the
fact that PLN has been carrying the same ads for years
and never been censored for them before. And there are
other problems with the censorship.
The FDOC failed to notice PLN or subscribing
prisoners what "rules" the ads allegedly violated, but it
can only be the Department's rule prohibiting call
forwarding, Rule 33-602.205(2)(a), Fla. Administrative
Code, since that is the way the alternative setup avoids .
the high rates of making a direct long distance call.
However, because of the unique wording of that rule
there is a simple way families and businesses can
comply with the rule and still set up .a reduced rate call
forwarding setup. The cited rule states:

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

Adding that up, say the prisoner makes 25 calls
a month to stay in touch with his children in Virginia,
that would be SI per call out of the' S25 for the basic
local number service, plus S2 for the SI.75 local collectcall surcharge and $0.25 flat rate per call, plus SI.50 for
each 15 minute call .at SO. 10 per-minute for the long
distance portion of the call. That gives you a total of
S112.50 for the 25 calls to anywhere in the U.S..
Compared to the FDOC's monopoly rate system, which
averages S20 per 15-rninute call for out-of-state calls, or
S500 for 25 calls, it's easy to see the savings to be had.
ar course, if all families set up, or signed up
with one of the companies that will help them set up.
such an alternative phone system, the FOOC's phone
monopoly cash cow will dry up. Last year theFDOC
received almost S19 million from MCI WorldCom as its
53 percent commission on phone calls made by Florida
prisoners. This year it will make even more as there are
about 2,000 more prisoners in the system.
It is expected the FDOC will fight tooth and nail
for the millions it is gouging out of families, which may
account for its overreaction to the ads in PLN. Those
ads simply inform about the businesses.that will help
families set up a lower rate alternative phone system,
unlike this article that explains how those businesses do
it.
Alternate Solution

"Iamates sball Dot make three-way calls nor make
calls to Dumbers OD the (prisoDer's approved phone)

list which are then trans/e"ed to other phone numbers
not on the list." See also: Rule 33-602.205(12Xb) S.,
F.A.C.
So. if a prisoner places both the local area phone
number .that is used for reduced rates and the long
distance number (that the local number is actually
forwarded or transferred to) on his or her phone list, then
no rule is violated and the prisoner can use the
locaVforwarded number and the family pays lower rates.
The biggest savings would be on out-of-state calls or
where the prisoner makes frequent in-state calls outside
the local calling area.
For example, local area collect-call rates are
capped in Florida by the Public Service Commission at
SI.75 surcharge and SO.25 flat fee per call (unlimited
minutes). There would be a charge per month to
establish the local number (the same as for a basic
service residential phone), usually around S25 or S30 a
month. Then the per-minute rate for the forwarded long
distance portion of the call, which usually can be
negotiated to SO. 10 per-minute or less since the family
member can select which phone company carries that
portion ofthe call.

The local-number/call-forwarding setup is only
one solution to obtaining lower phone rates for
prisoners' families and is not practical for everyone.
Many families cannot afford the basic expense of such a
setup and it is those families that are most hurt by the
FDOC's extreme high rate monopoly.
A better and more permanent solution is the one
being proposed by Florida Prisoners' Legal Aid
Organization's rate reduction campaign. The Families
Against Inflated Rates, or FAJR, Campaign is working
to have the families and' friends of Florida prisoners
contact their state legislators' and other government
official to call on'them to eliminate the FDOC's high
rate monopoly.
The solution is legislation or
administrative regulations requiring the FDOC to give
the .prison phone contract to the company that guarantees
the lowest rates for families - instead of the highest
commission to the FDOC.
In the past couple of months the FAIR
Campaign has been distributing Action Packets to
families that include complete information to participate
in the letter writing and complaint-filing part of the
campaign. The FPLAO website is set up to allow emails
to be sent to legislators and the Florida Public Service
Commission asking their help to stop the FDOC's
gouging of families.

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FLORIDA PRISON LEGAL

Perspectives

Such campaigns have been successful in other
slates. and this may be whal the FDOC is really
concerned about with ilS recent overreaction to the ads in
PLN. It is certainly time for the FDOC to realize it musl
noondon its anti-family policies and that they will no
longer be tolerated by prisoners' families.
Following is the contact infonnation for the ads
that were run in PLN:

database.. the blood or saliva snmples from which the
DNA \\IllS drawn would be kept by statc labs.
DNA analysis is not the 2,11 cenlury equivalent
of routine fingerprinting. Unlike an ink copy made of a
suspect's prinlS, DNA tests require a person to surrender
a sample of blood or saliva from his or her body. While
the tests are intended to providc identifICation without
revealing much about a subject's genetic makeup, even
the limited sample tested could provide sensitive
information on a person's medical history.
Inmate Family Services
116 IH JS S.
Further, states and the fcdcrnl government are
New Bnaunfels, TX 78130
not just keeping DNA results, but also the actual samples
1-866-446-6283 (Toll r....j
for fUlUre testing based on scientific advances.
wWYI'.inmatefumily services.com
Possibilities include creating a genetic blueprint of a
"CIII ,he high costs ofcolleCI calls from pri.fOIIS"
subject's physical charactcristics, vulnerability to
diseases, cven genes !inkl.'<! to criminal behavior.
~ Telc-Nel, Inc.
L
Government possession of this infonnlltion risks
ICI 1-888-299·7800
violnting innocent individuals' medical and privacy
www.prisoncalls.com
rights.
"Sal'l! lip 10 6()OAJ on collecI prison calls"
"II's only a matter of time before the
~~ e. 'ouJ c.ollf:(...1CA.l\ government gets its hands on those DNA samples and
Private Line!'l, Inc.
CQ IJ Ytt.-r
t. := ~ l.l!. starts playing around with Ollr genetic code." says Barry
1-866-342·5754 (Toll free)
,
~
Steinhardt. privacy specialist for the American Civil
.... www.privateJinesinc.com
0. "" •...,u-t L
Liberties Union's national office in ew York City.
"Bre"k Ihe inmart! telephone system stranglehold"
"They say they don't want to do that. but IlOI to long ago
they were saying they'd only take D A profiles from
For morc information about the FAIR Campaign, see the
now they want
rapists and murderers. and
juvcnilcs....we·re not just on a slippery slope, we're
notice in this issueofFPLP.
halfway down it."
(Sources: AP article, 3131/03; FDOC records; Prison
For those unfamiliar with DNA. a little history
L~glll Neil'S. Apr. 03] •
follows. DNA is a cellular acid contained in blood and
other body fluids and tissues.
Law enforcement
considers DNA an ideal tool for crime solving. Because
DNA Dragnet to Expand
it contains all individual's unique genetic code. a DNA
by Oscar Hanson
sample taken from blood, semen or even traces of saliva
in a bite mark can be used 10 match n perpetrator to a
The Justice Department is seeking Il.'gislation to
crime.
require nrrcstecs and juvenile offenders to submit DNA
In 1989, states bcgnn collecting DNA from
samples to be placed inlo the FBI's DNA database.
convicted criminals and adding thc profiles 10 a
Currently. only DNA from adults convicted of crimes
computer database that could match them to DNA from
clln be collected and placed in the national database,
unsolved crimes. In 1992. the FBI created a system that
which is used to compare biological evidence from
linked the state databases via a bureau computer in
unsolved crimes.
Morgantown. West Virginia.
Administrators from the Justice Department say
The Justice Department says it is not urging
tlut adding profiles from thousands of adult arrestees
Slates to expand DNA t<::sts to include everyone arrested
and juvenile offenders would greatly e:(pand the D A
for a crime because that's an issue for slales to decide.
S)Stcm's worth by increasing lhe number of potential
Yet by including in its natioll3l database all DNA results
matches. As of January 2003. there were about 1.3
that stntes submit. including those from individuals
million DNA samples on file. according to FBI officials.
unjustly arrested (and even wrongfully convicted), the
Whitc law enforcement officials claim that DNA
department
is condoning testing of the innocent.
is to the 21" century what fingerprinting was to the 201h,
Broad-based DNA tcsting increases the chances
critics sny adding arrestee and juvenile offender profiles
of catching criminals - and of freeing those who are
to lhe dalabase threatens privacy by expanding the pool
unfairly accused.
But the pursuit of those benefits
of smnples beyond adult criminals.
Although only
doesn't override the privacy rig/liS guaranteed by our
digital DNA profiles would be linked to the FBI
constitution of law·abiding citizens.

'F

c:..hW"'i

etC\'

ISources: USA TODA)'. 4-16-03. 4·22-03] •

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MICHAEL·V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATION
The Law Offices of Michael V. Giordano
412 E. Madison Street. Ste. 824
Tampa, Florida 33(;02
(813) 228-0070 '
A STATEWIDE practice specializing in Post-Conviction
Relief on both the State and Federal levels:

**EXECUTIVE CLEMENCY**
**PAROLE**
**DIRECT APPEALS**
**HABEAS CORPUS**

**POST-CONVICTION RELIEF**
*INEFFECTIVE COUNSEL
*WITHDRAWAL OF PLEA
*ILLEGAL SENTENCES
*ACTUAL INNOCENCE
*I.N.S. DEPORTATION

•

I am a fonner Assistant State Attorney (Felony Division Chiet), Assistant Public Defender (Lead Trial Attorney). and member of the
faculty at the University of Florida College of Law. I have devoted over 25 years to the teaching and practice of criminal defense law,
and I am an author of a 1,250 page text on federal practice in the Eleventh Circuit. The major thrust of my practice has been postconviction oriented. There is approximately 70 years of combined experience in my office. 1 do not believe you can find more
experienced representation in the State of Florida or elsewhere.

.

The IUrins ofII Iawycr is an important decision lhat should not be based IOlcly on advatisemenb. Bcfore you decide. lIIk us 10 send you free wriUcn infantllllion about our quaJillclltiims.

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Effective Exhaustion of
Administrative Remedies
by David M. Reutter
Although most prisoners legitimately feel the
FDOC's grievance process is broken, it remains the only
avenue for prisoners' complaints to be heard by
administrators. Moreover, it is a prerequisite to filing
any civil judicial remedy a prisoner may file. This
includes a lawsuit seeking only monetary damages, even
if such damages are not available through the grievance
process. See: Booth v. Churner, 121 S.Ct. 1819 (1001).
Prisoner under-use of FDOC's grievance system
is the largest contributor to that system being broken.
Many factors contribute to this under-use: ignorance of
procedure, lack of knowledge of what to write, and fear
of retaliation. This article attempts to address the first
two factors by highlighting the basics of the grievance
process. The last factor, retaliation, while a legitimate
fear, can be reduced by larger participation of prisoners
in the process, for if only a select few are grieving an
issue, it is easy for guards and admintstrators to focus on
those few. However, if grievances en mass are filed,
administrators must then focus on the merits of the
complaints. In recent years, brought on by budget
constraints, retaliatory transfers have decreased, as
current FDOC policy discourages transfers, which are
costly.
Time Limits
. A first considenttion is when to file your
grievance. Simply, as soon as possible after the incident
or action at issue occurs. FDOC policy states that time
frames for determining grievance timeliness "begin[s]
the day following the date of the incident or response to
the grievance at the previous level." Procedure Directive
103.001 (3).
An Informal Grievance must "be received within
a reasonable time of when the incident or action being
grieved occurred." Chapter 33-103.1 I I(l)(a), F.A.C.
The vague term "reasonable time" is determined on a
case-by-case basis, which requires officials to look at the
availability of witnesses and relevant documentary
eVidence. If you are filing beyond 15 days of an incident
or action, you should state at .the beginning of your
grievance why the delay is reasonable.
Direct and Formal Grievances filed at the
institutipn and Direct Grievances and Appeals filed with
the Secretary of FDOC must be received within 15 days
of the incident or action, or the date of response at the
previous level. Chapter 33-103.1 I I(I)(b), (c), (d),
F.A.C. A grievance is considered filed or received on
the date you give it to prison officials or place it in the

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mailbox, for the "mailbox rule" has been held to apply to
FDOC's Inmate Grievance Procedure. See: Pedroza v.
Tadlock, 70S SO.2d 1005 (Fla. 4dl DCA 1998). If the
15 Ib day falls on a weekend or holiday, the due date
shall be on the next regular work day. Chapter 33103.011(5), F.A.C.
.
If for any reason you cannot meet these time
limits, you may request 81\ extension of time. Chapter
33-103.111 (2), F.A.C. However, you must demonstrate
it was not feasible (reasonably possible) to file the
grievance and that you made a good faith effort to file in
a timely manner. Such a situation may exist if you were
inhibited from using the' law library to access rules or
.
applicable case law.
Responses to your grievances are due as follows:
(I) Informal Grievance within 10 work days of receipt .
by official; (2) Formal and Direct Grievances, filed at
the institution, within 20 days· of receipt by officials; and
(3) Direct Grievances and Appeals to the Secretary
within 30 days of receipt. Emergency Grievances on
any level require a response within I5 days, unless an
emergency is found not to exist, which requires a
response within 72 hours. Procedure Directive 103
(l9)(b) 1.
If you have not received a response and did not
agree to an extension of the above time limits, you may
move on to the next level of the grievance process once
the time for officials to respond has expired. However,
you must clearly state the date you filed your previous
grievance, who it was sent to, and that you have not
received a timely response. If a response is not timely
provided from the Secretary level, you may proceed to
file any judicial remedy that may be available. Chapter
33-103.011(4), F.A.C.

The Proper Remedy
Before filing any grievance you must first
determine what type of grievance to file.
Most
complaints start with an Informal Grievance on a regular
Inmate Request Form (DC6-236). On the top line of the
Request Form you simply write "Informal Grievance."
If the Informal Grievance is denied, you would then
proceed by filing a Formal Grievance to the Warden, and
if that is denied, then an Appeal to the Secretary, for
both of which you use what is commonly referred to as a
Formal Grievance Form (DCI-303) or "303" Form. In
certain situations you can skip filing an Informal
Grievance and file a Direct Grievance on a 303 Form if
it is a case of: (a) an emergency, which is dermed as
something that would cause serious or irreparable harm
to you or subject you to a substantial risk of personal
injury; (b) is a reprisal (retaliation) situation; (c) a
grievance of a sensitive nature; (d) alleging violation of
the Americans with Disabilities Act; (e) a medical

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PersPectives - - - - - - - . . . . ; . . . - - - - - - -

Include all relevant facts in the grievance.
Relevant facts include, for instance, that you have
incurred pain, injury, or require medical treatment.
Describe in detail how you are or have been affected by
the incident or action. For example, that you have back
pain that is not being properly treated. It causes you to
have pain run down your leg when you walk, you are
unable to sleep at night because of the nain, or you
cannot sit upright.
Including such facts not only
provides the reviewing official with facts to justify
taking action on your behalf, but if your situation rises to
the level of a constitutional violation to where you have
to seek relief in court, you will be able to show
knowledge of your condition by the grievance
reviewer(s) .and demonstrate deliberate indifference to
your situation if they deny you relief. If your situation
continues or worsens, file additional grievances
describing how your condition continues to affect you or
how it is getting worse.
Limit each grievance to a single issue or
violation. Procedure Directive 103.001(15Xa) 5. The
only exception to that policy is when you are appealing a
disciplinary report (DR) that resulted in more than one
rule or Due Process violation during the processing of or
hearing on the DR. In such 'cases, list the DR Log
Number (its on the DR form) and list each violation in
separate numbered paragraphs. You should cite all
authorities when alleging the violation of any case law,
rule, policy, or procedure.
A useful method in filing and exhausting the
grievance process is to be progressive. This method
involves stating the facts and requested relief in the
initial grievance. Upon denial, rather than rewriting the
entire grievance again on the next level form,. simply
attach a cOpy of the denied grievance that sets out your
complaint in full and write on the new form "Attached
and incorporated is my Informal Grievance (or Formal
Grievance, etc.). I maintain the same grievance and
request the same relief." You can add, if necessary. why
the lower level denial was improper or cite authorities
that show you are entitled to the requested relief. Do
not, however, include new issues that were not included
in the initial grievance or your grievance may be denied
for attempting to raise new issues. If new issues have
arose, file a fU=W and separate grievance on just those
issues.

grievance; (f) involves incentivegaintime; (g) challenges
close management placement; (h) involves admissible
reading material; andlor involves disciplinary action not
including corrective consultations. These issues are sent
directly to the Warden, except for grievance appeals
concerning admissible reading materials which are sent
to the Secretary.
Also, Emergency Grievances,
Grievances of Reprisal, and Grievances of a Sensitive
Nature may be filed directly to the Secretary. When
filing a Direct Grievance of any type it is advisable to
write what type grievance it is on the top line of the
form. See: Procedure Directive 103.001(19). In practice,
be aware, these type grievances are normally denied if
filed directly to the Secretary with instructions to refile
at the institution.
Preparing and Writing the Grievance
As with any formal written document, you
should prepare a draft ofyour complaint before putting it
to the final form.
If you are filing an Informal
Grievance, check the "Other" box on the form and write
in the staff member's name who is responsible for the
particular area of your complaint. At times this may
mean sending it to the person that caused the problem.
While that may seem problematic, it allows the staff
member responsible to respond in writing, which will be
useful in any higher level grievance or appeal or judicial
action that you may file. However, you are not required
to send your complaint to anyone you are alleging
reprisal against or who physically abused you. Chapter
33-103.015(6). On the first line of the Request Form .
write "Informal Grievance."
. Unlike Informal
Grievances, on Formal Grievance Forms you can just
check one of the provided boxes to indicate who your
complaint is going to.
The first "rule" of grievance writing is not to ask
questions, seek information, guidance, or assistance
because grievances of that nature "shall be treated as
inmate requests and' the inmate will be advised that he
cannot appeal the response." Chapter 33-103.005(2)(b)
I., F.A.C.
Your grievance should state the date of the
incident, the names of any prisoners or staff that
witnessed or were involved in the incident or action, and
a short narration of the incident. If you cannot identify
wrongdoers, identify their position the best you can.
The courts have held you need' not identify wrongdoers
in your grievance if you cannot readily ascertain their
id~ntity, for you can name the Warden as a defendant if
it comes to a case in court to identify the wrongdoers,
and then amend your complaint to include those
wrongdoers after they are identified. See: Brown v.
Sikes, 212 F.3d 1205 (11'11 Cir. 2000).

FUing Your Grievance
If your complaint written out is longer than the
space provided on the form. you can add continuation
pages. The FDOC would like you to provide three
copies of each page of the continuation pages for their
convenience. If you do send three handwritten copies of
each continuation page, you are suppose to get one of

7

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

the copies back with the response to your grievance.
However. sometimes you will not get a copy back at all.
FDOC policy does. state you may submit only one copy
of continuation pages, but if you do you will not get that
copy back. Procedure Directive 103.00I(l5)(a) 7.•
(16)(a) 4. and (17)(a) 5. The same applies to any
documents or exhibits that you attach to the grievance.
The law library will not make photocopies of your
continuation pages. but should make copies of exhibits
to attach to a grievance. Chapter 33-602.405. F.A.C. In
the case of appeals of impoundment or rejection of
admissible reading materials. you are only required to
attach one of the two notices of impoundment/rejection
fonns that you receive from the mailroom.
Important: You are also required to attach a
complete copy of any grievance and response on a lower
level when proceeding to a higher level. For example.
when filing a Fonnal Grievance at the institution level
you must attach a copy of the Infonnal Grievance that
you filed to it, and when filing an Appeal to the
Secretary you must attach a copy of both the Informal
and Formal institutional level grievances to the Appeal.
Only one copy of the lower level grievance(s) need to be
attached, and they should be returned with the response.
Infonnal. Formal. and Direct Grievances filed.at
the institutional level are nonnally placed in the routine
mailbox., though some institutions have a box just for
grievances. Appeals to the Secretary may be handled in
the same manner. Postage for grievances or appeals to
the Secretary wil1 be provided by the institution,
although you may. if you wish, place it in a sealed
envelope and send it directly to the Secretary yourself. It
is usual1y unnecessary to do that since the institution will
eventually learn ofyour complaint anyway.
Finally, your grievance should be signed and
include your DC# next to your signature, failure to do so
may result in delay of response to verifY it is your
grievance. Chapter 33-103.005(2)(b) 2. No matter what
prison your grievance occurred at, your grievance is to
be filed with the prison you are currently at. Officials at
your present prison are responsible for handling
complaints that arose at a prison you were previously
assigned to. If that is the case, clearly state in your
grieyance that the grievance concerns an incident or
action at your previous prison. Chapter P-1.03.015(4),
F.A.C.

PerspectIves - - - - - - - - - - - - - - -

the housing officer, but you may have to request a loan
copy of the Procedure Directive from the law library.
Facilities without law libraries shall have access to the
rules and procedures from the classification office or
security shift supervisor's office.
Chapter 33103.004(4). F.A.C.
Forms DC6 and DC 1-303 are to be available
upon request from the prison library. classification
department and staff. and the housing officer of any
housing unit. Chapter 33-103.015(2). F.A.C.
This article is not 'all inclusive in detailing the
grievance procedure or in ways to prepare a grievance.
It is meant to encourage prisoners to put their complaints
to paper. We are 75,000 strong. If we utilize the
grievance procedure en mass. it will be cheaper for
prisons to address the root problem rather than continue
to address grievances on the same issue. It will also take
pressure off those steady grievance warriors.
The next time you have a complaint, reaet to it
with more than an expulsion of ineffective, and boring,
hot air. Utilize the grievance procedure, which only
costs you a little time. We all have plenty of that on our
hands. See you at the mailbox. •

Supreme Court Revisits Miranda
This fall the U.S. Supreme Court will decide the
extent of its 1966 ruling in Miranda v. Arizona, one of
the pillars of the liberal era of Chief Judge Earl Warren.
The current conservative bench has often critized the
Miranda decision.
The Miranda warning requires suspects to be
told that they have a right to remain silent and that
anything they say can (and will) be used against them in
a court of law.
In 2000, the Justices ruled that the 1966 decision
rested on constitutional principles and that Congress
could not pass a law allowing confessions to be admitted
at trial when defendants had not been read their Miranda
rights. The 7-2 ruling focused largely on limiting
Congress' ability to meddle with court rulings.
The question in a Colorado case is whether
physical evidence derived from such statements, such as
guns or drugs, can be used in court. Past rulings of the
Court suggest that the Justices could be more closely
divided in this case. The U.S. Solicitor General will
argue that' Miranda ~ars only the admission of
confessions not physical evidence obtained as at issue in
the Colorado case.
The ruling will have a broad impact on poJi~e
tactics as police sometimes deliberately do not give the
Miranda warning to try to get'details about evidence. -

Closing Thoughts
The Inmate Grievance Procedure is found in
Chapter 33-103 of the Florida Administrative Code
(F.A.C.) and further defined in Procedure Directive
103.00 I. Those rules and procedure directives are
available from the' prison law library. If you are in
confinement the Chapter 33 rules may be available from

8

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

V1 '

Perspectives - - - - - - - - - -

. ;

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LOREN D. RHOTON

!::1.

Attorney At Law

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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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FLORIDA PRISON LEGAL

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POST CONVICTION CORNER

by Loren Rhoton, Esq.

Oftentimes when a criminal defendant on a probationary portion ofa split sentence (for
purposes of this article a split sentence is a prison sentence followed by a term of probation)
admits to a violation of probation and agrees to a new prison sentence, the advice given by
counsel is incomplete as it. pertains to previously earned gaintime. Many trial lawyers are not
familiar ,with DOC's treatment of previously earned gaintime and thus misadvise their clients as
to how the previously earned gaintime will affect the new sentence:. I have represented
numerous inmates who were informed by their attorneys that,they would receive credit for all
previously earned gaintime against their new sentence. Unfortunately, trial attorneys are often
unfamiliar with Florida Statute §944.28(l) which provides DOC with the authority to forfeit
previously earned gaintime upon a violation ofa probationary portion of a split sentence.
Florida Statutes §948.281(1) provides that if probation is revoked for a defendant who
already served a tenn of incarceration under a split sentence, DOC "...may, without notice or
hearing, declare a forfeiture of all gain-time earned according to the provisions of law by such
prisoner prior to... his or her release under such clemency, conditional release, probation,
community control, provisional release, control release, or parole." §948.281 (l) effectively
allows DOC to forfeit the previously earned gaintime and forces the defendant to serve the
forfeited time before the newly negotiated sentence can begin. In other words, ifa defendant
enters an admission to a violation of probation pursuant to a plea deal for a specific prison
sentence, DOC will make the person serve the remainder (forfeited gaintime) ofthe original
prison sentence before the new sentence can commence. Therefore, §948.281 (I) allows DOC to
thwart the intention of the negotiated plea by adding more time onto the negotiated sentence.
If a defendant is not properly advised as to the effect of §948.281 (l) on a plea to a
violation of a probationary portion ofa split sentence and his previously earned gaintime is
forfeited, then the plea is rendered involuntary and is subject to being withdrawn. A plea of
guilty is constitutionally valid only to the extent thatit is voluntary and intelligent. Brady v.
United States, 397 U.S. 742 (1970). Three requirements are essential for a valid guilty plea: (I)
the plea must be voluntary; (2) the defendant must understand the nature of the charge and the
consequences of his plea; and, (3) there must be a factual basis for the plea. Williams v. State,
316 So.2d 267 (Fla; 1975). If a defendant does not understand that additional time (the forfeited
gaintime) will be added back onto the 'newly imposed sentence (thereby increasing the negotiated
sentence) then said defendant clearly does not have a clear understanding as to the consequences
of his'plea. Such a plea would, ,thus, be rendered involuntary ifin fact DOC forfeited the
previously earned gaintime and forced the defendant to serve a longer sentence than was actually
negotiated.
Florida case law specifically provides relief for the above situation. In McCallister v.
State, the defendant entere~ into a plea agreement to receive ten years credit for tiine served on a
seventeen year sentence following the revocation of probation and was sentenced in accordance
with the agreement. DOC revoked the gain time portion of the original ten years in accordance
with Florida Statutes §948.28(l). The defendant in McCallister claimed in a 3.850 Motion that
he entered into the plea agreement with the understanding that he would receive credit for the full

10--------------

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

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

ten years. McCallister asked that the trial court either: (1) resentence him in a manner that would
enforce his plea agreement; or, (2) allow him to withdraw his plea. The McCallister Court
stated:
"While the trial court cannot compel the DOC to follow the plea
agreement. since it wOJ.1ld usurp.the DOC's authority to forfeit gaiq
time, the trial court can still effectuate the plea agreement by either
resentencing the appellant in a manner that will effectuate the plea
agreement given the DOC's forfeiture,'or by allowing the appellant
to withdraw from his plea.:' Id.

"
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Theretore, if a defendant were to be resentenced. he should be resentenced so that he would have
to serve the amount of time he actually plead to, instead of said amount of time plus the forfeited
gaintime. The McCallister Court further explained that ;;effectuating the plea agreement is
proper even though the appellant had no legal entitlement to such gaintime since the DOC could
declare it forfeited, because the'court and the parties contemplated that the appellant would be
credited with such gaintime.·· Id.
.
McCalIister, a First District Court of Appeal case, is in accord with the other district
courts of appeal in Florida. See, Foldi v. State, 695 So.2d 886 (Fla. 2nd DCA 1997); Williams v.
Department of Corrections, 734 So.2d 1132 (Fla. 3rd DCA 1999): and, Dellahoy v. State. 816
So.2d 1253 (Fla. 5lh DCA 2002). Therefore, should DOC forfeit ga:ntime from a previously
served sentence upon the violation of prQbation, there is a remedy if there was a negotiated plea
agreement which did not take the effect of Florida Statutes §948.28(1) into account. The
sentence should be restructured to reflect the intent of the parties or the plea should be allowed to
be withdrawn. •

David W. Collins, Attorney at Law
Fonner state prosecutor with more than IS years ofcriminal law experience.
"AV.. rated by Martindale-Hubbell Bar Register ofPreeminent Lawyers.

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"The hiring ofa lawyer is an important decision that should not be based solely upon advertisements.
'Before you decide, ask me to send you free written infonnation about my qualifications and experience."

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_

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ FLORIDA pRiSON LEGAL

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

civil appeal process by making Certificates of
Appealability (COAs) more obtainable. In an 8-1
decision (Thomas dissenting) the high Court ruled that
the Fifth Circuit erred ' in requiring habeas petitioner
Thomas Joe Miller-EL to make a substantial factual
demonstration of trial evidence in order to obtain a COA
to appeal denial of his habeas petition. The case,
decided Feb. 25, 2003, is Miller-EL v. Cockrell, 16 FLW
Fed. S77; S Ct. Case No. 01-7662.
. Federal rules require that if a u.s. District Court
decides against an indigent litigant, he or she must first
apply for a COA from the same court, or the decision
cannot be appealed.
The practice is highly
discriminatory. The State is specifically excluded from
the need to do this, and litigants who can pay the
appellate filing fee need not worry about COA rejection
for being frivolous under sec. 1915.
Nor is the basic concept fair. To issue a COA
the District Court is essentially required to admit that its
own decision is incorrect. It is patently illogical to
require the District Court to confess in a((vance that its
judgment is shakey and that reasonable jurists could
disagree with it.
Consequently, District <;ourts have been issuing
few COAs and that decision is not itself appealable.
Many prisoner litigants reaching that point in an already
complicated legal process simply give up, often making
a mistake.
While it is true that in the semantics of Federal
Civil Procedure lingo a District Court's denial of a COA
is not appealable, by turning to the Federal Rules of
Appellate Procedure, and then 28 U.S.C. s.s. 636 and
2253,· it will be discovered that if a District Court denies
a COA, one can still be sought by application directly to
the Appeal Court.
'What Miller-EL streamlined was the criteria for
granting a COA. Under 28 U.S.C. 2253, the Court said,
a COA decision is merely a "threshold inquiry" into
constitutional defects. Further, the Court noted, "the
COA inquiry asks only if the District Court's decision
was debatable."
Thus, it appears that following Miller-EL, if
cases can be cited supporting a litigant's argument that it
is reasonable to assume that jurists of reason already
disagree with the District Court's determination and that
a COA should issue from the Appeal Court.
One more sentence could have extended Mil/erEL to COA determinations by the District Courts. It
makes no sense for a lower court to impose a stricter
standard. It creates a flow of useless paperwork from
litigants to the appeal court, but that is where the
Supreme Court left the issue hanging. At least the
Miller-EL "debatable" standard is to be applied to COA
determinations by the appeal courts, and that should help
overcome the almost insurmountable obstacle that
COA's had b~ome for prisoner habeas litigants in
recent years. •

FDOC Targets Pen-Pal Ads
On Apr. 4, 2003, the Florida Department of
Corrections (FDOC) posted a final rulernaking notice
that the Department intends to adopt rules prohibiting
prisoners, or anyone acting on a prisoner's behalf, from
posting personal ads seeking pen-pals on web sites or in
any other type of printed media. Additionally, if
adopted, the proposed rule amendments would create a
blanket
prohibition
on
prisoners, "receiving
correspondence or materials from persons or groups
marketing advertising services, or from subscribing to
advertising services," and prisoners would be prohibited
from entering any type contest or sweepstake through
the mail.
The FDOC is claiming that prisoners must be
prevented from using personal ads to locate pen-pals
because some prisoners try to con pen-pals out of
money.
Randall Berg, an attorney with the Florida
Justice Institute in Miami, said that his office will file a
protest with the FDOC over the pen-pal ad ban on
grounds that it would violate prisoners' First
Amendment rights.
Currently, the only remaining
meaningful review of prisoners' rights falls under the
First Amendment umbrella. All other constitutional
angles have been extremely narrowed by both the
judiciary and Legislature.
Two other states, Arizona and California, have
attempted similar bans on prisoner pen-pal ads. Upon
being challenged, however, both attempts by those states
were ruled to be unconstitutional and struck doWn by the
courts.
Following FDOC's publication of the
rulemaking notice, a public hearing on the proposal was
demanded by !leveral prisoner advocate groups and
scheduled for mid-May by the FDOC.
What happens with the rule proposal remains to
be seen. With the way FDOC is going this may be the
year that the Department finds itself embroiled in several
legal actions over its attempts to restrict and violate
prisoners' and their correspondents' First Amendment
rights and the Fourteenth Amendment Due Process
rights that must be afforded.
[Sources: Tampa Tribune, 3/14/03; FDOC Rulemaking
Notice, 4/4/03. concerning Rule 33-210.101 "Routine
Mail."] •

Streamlining COAs
by Richard Geftken
Federal Civil Procedure is so complicated it can
be incomprehensible even to those completing law
school and passing a bar exam. For a change, the U. S.
Supreme Court recently decided to streamline the federal

12

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.from the editor
It is obvious to those who follow FDOC
rulemaking actions that certain elements within the
Department have embarked on a mission to further restrict
Florida prisoners' communication and interaction with,
and receipt of information from, the outside world. This is
not entirely surprising. For prisoners, information and a
strong outside support system equals a relative amount of
power. That, in tum, creates fear and anger among those
in· the prison bureaucracy who are insecure with
themselves or who self-righteously believe that all
prisoners and anyone who would associate with them have
no real rights that must be respected.
In recent months there has been a flurry of
rulemaking proposals from the Department. In December,
frustrated with FPLAO rulemaking challenges, the
Department ignored mandatory rulemaking requirements,
and bulldozed ahead to adopt' and implement new rule
restrictions on the amount and content of written materials
that free world citizens may send to prisoners through the
mail. That has resulted in a furiously antagonistic legal
battle between FPLAO and the FDOC before the Division
of Administrative Hearings that is still ongoing.
Apparently oblivious to fundamental rights, in
February the Department introduced two more inf"um
rulemaking pro~ls. The first proposal would prohibit
prisoners from placing any advertisements, specifically
advertising. in any medium for pen-pals, and prohibit them
from receiving any mail related to advertising. The
proposed rule would also prohibit prisoners from entering
any contest through the mail. which would include
writing, poetry or art contests.
The Department followed that rule proposal with
one that would prohibit prisoners from engaging in any
business or profession that might generate revenue or
profit for a prisoner. Specifically prohibited, unless
approved by the Warden, would be engaging in the
business or profession of writing for publication.
Additionally, prisoners engaged in a business or
profession would be required to turn total operational
authority of same over to someone on the outside to whom
prisoners would be prohibited from sending mail to or'
receiving mail from concerning direction of the business.
Further, under the rule proposal, any prisoner who even
"attempts" to engage in a revenue-generating busineSs or
profession "through the mail, telephone, or any other
avenue of communication... shall be subject to disciplinary
action."
On a slightly different tack, but perhaps related,
recently FPLP staff have been receiving an increased
number of letters from prisoners saying they didn't receive
an issue, although upon checking the staff fmds the issues
were mailed.
We can on\y conclude that some
institutional mailrooms are "losing" the issues, although
they deny same when contacted.
In January, two

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

institutions returned all copies of FPLI' to our office
claiming they were undeliverable because they lacked the
prisoners' DC Numbers on the mailing labels. Actually,
every copy returned had the prisoner's DC number clearly
printed on the label. A call to the' DOC central office
convinced them to allow the Copies to be mailed to the
Warden of each institution to ensure they were distributed
to the proper prisoners.
Most recently the Department stepped into a
potentially serious quagmire by rejecting an issue of
Prison Legal News beCause. it contained advertisements
for companies that help prisoners' families get arou~d
phone rate gouging by prison systems.
The above noted actions cannot be ignored.
Historically, the FDOC, like many prison bureauracracies,
tends to constantly nibble with like actions to gradually
erode fundamental constitutional rights and the power
bases of prisoners and their supporters. It just so happens
that now the focus is on eroding the most fundamental
rights, upon which most other rights depend, and that is
those rights protected by the First Amendment. It can
only happen, however, if we let it.
Recently FPLAO has been receiving more
donations from its members. Much thanks goes out to
those prisoners, their family members, loved ones, and
advocates who have contributed to help make the
organization stronger. The budget is always very tight, so
the extra donations are always very helpful. In fact, the
organization needs all the extra donations it can get right
now.
FPLAO has outgrown the limited office space its
had since the begiMing. It's time to expand so space isavailable for more volunteer members to actively
participate in projects and op~rations. Instead of renting
additional office space, which can be expensive, the
FPLAO Board of Directors have decided the best option
would be to purchase a mobile (construction site type)
office. Such an office in used but good condition, can be
purchased for approximately $6,000.
We have an offer of rent-free property to set such
an office up on, located only two blocks from where the
main office is now located on East Colonial Drive, right
outside of Orlando. To get the office (actually the unit
staff wants has 3 rooms or offices in it and a restroom)FPLAO members and supporters are being caned on to
make donations specifically for this purpose. Any amount
donation will help. Simple indicate on your check or
money 'order, or in a note accompanying same, the
donation is for new office space. In future issues of FPLP
will be noted how this fundraiser is going and the amount
collect towards the $6,000 goal. If you haven't made a
donation recently, please do so now so FPLAO's
productivity and effectiveness can be increased with
adequate space to work in for staffand volunteers.
Bob Posey •
_4

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- - - - - - - - - - - - - - FLORIDA PRISON LEGAl

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

The following are summaries of recent state and federal cases that may be useful to or have a significant 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 Supre~e Court Reporter (S.Ct.).

UNITED

COURT

STATES

SUPREME

disproportionate and therefore does
not violate the Eight Amendment's
prohibition on cruel and unusual
punishments.

Ewing v. California, 16 Fla. L.
Weekly Fed. SI24 (U.S. S.Ct.
315103)
Lockyer v. Andrade,' 16 Fla. L.
Weekly Fed. SI35 (U.S. S.Ct.
The United States Supreme
3/5/03)
Court has held that California's three
In a second case involving
strikes law is constitutional. Under
California's three strikes law, a
the constitution~lity of California's
three strikes law, the United States
defendant who is convicted of a
Supreme Court not only rejected an
felony and has previously been
convicted of two or more serious or
Eight Amendment challenge as
discussed in Ewing v. California, but
violent felonies must receive and
also rejected a challenge premised on
indeterminate life sentence. Such a
defendant becomes eligible for
an u~easonable application of
clearly established federal law.
parole on a date calculated by
California prisoner Leandro
reference to a minimum term, which,
Andrade's argument to the Supreme
in this case, is 2S years.
Court was thai his two consecutive
While on parole for a
terms of 25 years to life for stealing
previous offense, petitioner Gary
approximately $150 in videotapes is
Ewing was convicted of felony grand
grossly disproportionate in violation
theft for stealing three golf clubs,
worth $399 a piece. As required by
of the Eight Amendment. Andrade
similarly maintained that the state
the three strikes law, the prosecutor
court decision affirming his sentence
formally alleged, and the trial court
is "contrary to, or involved an
found, that Ewing had been
convicted previously of four serious
unreasonable application of. clearly
or violent felonies. In sentencing
established
Federal
law,
as
Ewing to 25 years to life, the court . determined by the Supreme Court."
Andrade relied upon a series
refused to exercise its discretion to
of precedents from the U.S. Supreme
reduce the conviction to a
Court, i.e., Rummel v. Estelle, 445
misdemeanor - under a state law that
U.S. 263 (1980); Solem v. Helm, 463
permits certain' offenses,known as
U.S. 277 (l983); and Harmelin v.
"wobblers," to be classified as either
Michigan, 501 U.S. 957 (1991), that
misdemeanors of felonies - or to
dismiss the allegations of some or all
he claimed clearly established a
of his prior relevant convictions.
principle that his sentence is so
grossly disproportionate that it
The State Court of Appeal affirmed
violates the Eight Amendment.
his conviction. The State Supreme
The Supreme Court stated
Court denied review.
that section 2254(d)(l)'s "clearly
On certiorari the U.S.
established" phrase "refers to the
Supreme Court held that Ewing's
sentjmce
was
not
grossly
holdings, as opposed to the dicta,' of

the Supreme Court's decisions as of
the time of the relevant state-court
decision." In other words, "clearly
established Federal law" under
section 2254 (d)(l) is the governing
legal principle or principles set forth
by the Supreme court at the time the
state court renders its decision. see:
Williams v. Taylor, 529 U.S. 362
(2000).
The Supreme Court admitted
that their precedents in this area have
not been a model of clarity, nor has
the Court established a clear or
consistent path for courts to follow.
In sum, the Court held that
the gross disproportionality principle
reserves a constitutional violation for
only the extraordinary case.
In
applying this principle for 2254(d)(I)
purposes, the Court held it was not
an unreasonable application of their
clearly established law for the
California Court of Appeal to affirm
Andrade's sentence.
[Editor's Note: Each of the two cases
above was rendered by a 5-4 split of .
the Court].
Connecticut Department of Public
Safety v. Doe, 16 Fla. L. Weekly Fed.
SI40 (U.S. S.Ct. 3/5/03)
In a case involving sex
offender registration, the U.S.
Supreme Court held COMecticut's
statute requiring persons convicted of
sexual offenses to register with
Department of Public Safety upon
their release into the cornmunity.and
requiring DPS to post a sex offender
registry
containing
registrants'
names, addresses, photographs, and
descriptions, does not deprive.

----------------14 ----------,....-------

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

registered sex offenders of a "liberty
interest" and does not violate Due
Process Clause because officials do
not
afford
registrants
a
predeprivation hearing to detennine
whether they are likely to be
"currently dangerous." Further, the .
Court held that Due Process does not
require an opportunity to prove a fact
that is not material to state's statutory
scheme.
Smith \I. Doe, 16 Fla. L. Weekly Fed.
SI42 (U.S. S.CL 3/5/03)

In a second case regarding
sex offender registration, the U.S.
Supreme Court held that Alaska's
Sex Offender Registration Act,
which requires any sex offender or
child kidnapper incarcerated in state
to register with Department within
30 days before his release providing
vital information such as future
address
and
other
specified
information,
is
not punitive.
Accordingly, retroactive application
does not violate ex post facto clause.

u.s. COURT OF APPEALS
\I. Siegelman, 16 Fla. L.
Weekly Fed. C36S (I1 d1 Cir. 2/28/03)
The sole issue ip this
interlocutory appeal is whether nine
public servants, who are being sued
for money damages in their
individual capacitites under 42
U.S.C. section 1983, are entitled to
qualified immunity with respect to
the claim that they violated
plaintiff's Fourteenth Amendment
rights by designating him a child
abuser without· first affording him a
due process hearing. The defendants
raised their qualified immunity
defense in a joint motion to dismiss
the plaintiff's complaint. The district
court denied their motion; however,
the circuit court reversed.
Smith claims that the
defendants violated his Fourteenth
Amendment right to due process
when the public servants, who
worked at the Department of Human
Resources (DHR), placed his name
and the DHR report on DHR's

Smith

Perspecttves - - - - - - - - - - - - - -

Central Registry without providing
him the opportunity to present
testimony and examine witnesses.
Because Smith could not provide
sufficient facts that six of the nine
defendants partic:ipated in, or even
where aware of, child abuse
investigation of plaintiff or placing
his name on sexual abuse registry,
there, is no constitutional violation,
and
without a constitutional
violation, there can be no violation of
a clearly established right to justify
the denial of qualified immunity.
.
Further, assuming that the
remaining three defendants played a
significant role in decision to deny
Smith the sort of due process hearing
plaintiff sought, these defendants, the
court held, are entitled to qualified
immunity on due process claim
where the plaintiff has not
sufficiently alleged depriviation of
protected liberty interest in not being
designated as a child sexual abuse.
In other words, plaintiff had not
established a
liberty
interest
sufficient to implicate Fourteenth
Amendment . safeguards
where
plaintiff had not alleged that, due to
the information on the registry, he
has suffered loss of employment,
diminution of salary, or anything else
that would qualify as some more
tangible interest. Even if Smith's
employment and custody rights in
the future could be affected
adversely due to information on
registry, reputational damage alone is
.insufficient to constitution protected
liberty interest. Plaintiff must show
that defendant's conduct deprived
him of previously recognized
property or liberty interest in
addition to damaging plaintiff's
reputation.
FLORIDA SUPREME COURT
\I. Abreu, 28 Fla. L. Weekly
S16 (Fla. 119/03)
Section 90.803 (22), Florida
Statutes (1999) has been declared
unconstitutional by the Florida
Supreme Court to the extent that it
allows the proseCutor to use at trial a

Stale

witness's testimony from a previous
judicial proceeding without a
showing by the prosecutor that the
witness is unavailable.
This section was held
unconstitutional on the ground that it
violates the Confrontation Clause of
the Sixth Amendment to the United
States Constitution.
\I. Slale, 28 Fla. L. Weekly
S18 (Fla. 1/9/03)
The Florida Supreme Court,
in a revised opinion, has held that a
trial court cannot bring a defendant
back to court, vacate a sentence
imposed, and resentence him to what
amounts to a more onerous sentence
without violating double jeopardy.
In sum, once a "legal" sentence is
imposed, jeopardy attaches and the
defendant cannot be resentenced to a
greater tenn of imprisonmenL

Ashley

[Editor's.Note: An additional caveat
to the above decision needs to be
explored.
The Supreme Court
indicated that once a sentence has
been imposed "and the person begins
to serve the sentence," that sentence
may not be increased without
running afoul of double jeopardy
principles.
The term, "and the
person begins to serve the sentencc,"
is problematic. There are conflicting
opinions of when that event takes
place.]
\I. Slate, 28 Fla. L. Weekly
S44 (Fla. 1/16/03)
The Florida Supreme Court
accepted conflict jurisdiction and
held that absent the execution of an
arrest warrant, a defendant who is in
jail in a specific county pursuant to
arrest on one or more charges need
not be given credit for time served in
that county on charges in another
county when the sentence county has
only lodged a detainer against the
defendant. The filing of a detainer or
hold does not have the same effect as
executing or transmitting an arrest
warrant. A detainer is merely a
request to hold the defendant for the
second· county or to notify the second

Gethers

---------~------15-----------

_

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

county when the defendant's release
is imminent so the second county can
act.

BUller v. Slale, 28 Fla. L. Weekly
S90 (Fla. 1/30/03)
The Florida Supreme Court
answered a question certified by the
Fifth DCA and held that a trial court
may sentence a defendant to a prison
term in excess of the statutory
maximum for an offense committed
after October I, 1998, where the
lowest pennissible sentence under
the Criminal Punishment Code
exceeds the statutory maximum. The
court held there is no conflict
between section. 921.002( I )(g),
Florida Statutes (Supp. 1998), which
does not authorize, the trial court to
impose a sentence in excess of the
statutory maximum, and section
921.0024(2), Florida Statutes (Supp.
1998), which directs that where the
lowest permissible sentence under
the Code excess the statutory
maximum, the sentence required by
the Code must be imposed. The
lowest permissible sentence under
the Code becomes the maximum
sentence allowable.

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

after July I, 1994, the effect date of
the law.
The question presented in
this case is whether 960.297 could be
applied retroactively because the
statute was not in effect at the time
Goad committed the criminal
offenses
resulting
in
his
incarceration.
On appeal the First DCA
concluded that sections 960.293 and
960.297 afford civil remedies that are
not the equivalent of criminal
punishment, and therefore do not
violate the ex post facto clauses of
the state and federal constitutions.
Conflict was certified with the
Second and Fourth DCA's.
The Florida Supreme court
resolved the conflict siding with the
First DCA and held the Civil
Restitution Lien and Crime Victims'
Remedy Act did not .violate the ex
post facto clause nor did it violate
substantive due process under either,
the state or federal constitutions.
'
DISTRICT COURT OF APPEAL

Rial v. Slale, 28 Fla. L. Weekly D7
(Fla. 3d DCA 12/18/02)
Christina Rial appealed the
circuit court's order of revocation of
Goad v. FDOC, 28 Fla. L. Weekly
SI76 (Fla. 2127/03)
probation and community control
and sentence. Rial entered into a
Florida prisoner Ollie Goad
initiated a civil action against the
plea agreement where she pled guilty
DOC in 1995, for injuries he
to the charges against her in
exchange for two years community
sustained when he was attacked by
control followed by 10 years
another inmate. In response to this
claim, the DOC filed a motion for . probation, with a special condition
summary judgment and a counterthat she complete the Start program
and then enter the Passageways
claim under sections 960.293 and
960.297, Fla. Stat. (Supp. 1994) to
program.
recover the costs of Goad's
Rial completed the Start
program
then
entered
the
incarceration.
Passageways program.
Shortly
Section 960.293 provides
that a defendant who is incarcerated
thereafter, she asked to leave the
program.
(Both
Start
and
for an offense that is neither a capital
PassageWays programs are nonoffense nor a life felony o~ense is
secure mental health facilities.)
liable to the state in the amount of
Rial's probation officer advised her
$50 per day for the costs of
she
was in violation of her
incarceration.
By the terms of
section 960.297, the state may
community control, and a revocation
recover these. costs for the portion of
and a revocation hearing soon
Rial was found in
the offender's remaining sentence' followed.
violation of her conditions' of

community control and sentenced to
30 years in prison.
On 'appeal, the DCA held
that the trial court erred in finding
that Rial violated probation and
community control by absconding
from the Passageways program
where the condition did not require
Rial to complete the program, but
only, that she enter it. The DCA
reversed the order of revocation
since the condition that Rial enter a
program was without a requirement
ofcompletion or a fixed time limit.

Amos v. Slale, 28 Fla. L. Weekly

049 (Fla. 4th DCA 12/18/02)
Florida prisoner Tyra Amos
appealed the denial of her Rule 3.800
motion that alleged her sentence was
illegal because the jury did not make
specific findmgs that (I) she
discharged a weapon, and (2) such
discharge caused great bodily harm,
which findings are necessary to
trigger an enhancement under section
775.087(2)(a) 3. Amos was charged
with aggravated battery with a
firearm.
The DCA held that where
the jury did not find great' bodily
harm, enhancement of sentence
beyond ,statutory maximum for
aggravated battery based on the
discharge of firearm causing great
bodily harm violated U.S. Supreme
Court's holding in Apprendi v. New
Jersey.
The DCA reversed for
resentencing in light of Apprendi.

Plule v. Slale,. 28 Fla. L. Weekly
0308 (Fla. 2d DCA 1124/03)
The Second DCA held when
a defendant has been granted relief
from initial sentence imposed under
unconstitutional 1995 guidelines, that
upon resentencing the trial court
could impose a habitual offender
sentence notwithstanding the fact a
guideline sentence was originally
imposed.

NOTABLE CASES

continued ...

---_---------__._--16----------------

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

Appeals
Belated Appeals
Rule 3.800 & 3.850
. Habeas Corpus
Executive Clemency

Law Office
of

Jon L. Martin
3601 S. E. Ocean Blvd.
Suite 103
Stuart, FL 34996
Phone (772) 419-0057
Fax (772) 781-4548

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Advocates

"TIle hiring of a lawyer is an important decision
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you frec 'Wrlt/clI I'l!ormtl/ioll about our
qlllJlljlcatlollJ and experience. "

Perspechves - - - - - - - - - - - - -

A!!i
AFrER 28 YEARS IN CRIMINAL.
LAW,
INCLUDING
POST
CONVICTION
WORK,
ONLY
RECENTLY HAVE I LEARNED HOW
DIFFICULT IT IS FOR DOC INMATES
TO FIND LAWYERS WILLING TO
EVALUATE AND ASSIST IN POST
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IS MADE EVEN WORSE BY DOC
EFFORTS TO LIMIT LAW LIBRARY
ACCESS AND MUCH NEEDED
SERVICES LIKE COPYING. I AM
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FLORIDA 3280 I OR AT 407-841-9336.

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Esquire

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Former Orlando
City Prosecutor
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THE HIRING OF A LAWYER IS AN
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17~---------------

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

NOTABLE CASES continued ...
Fusion v. Siale, 28 Fla. L. Weekly
D572 (Fla. 2d DCA 2/28/03)
Florida prisoner Charles
Fuston appealed the denial of his
Rule 3.800(a) motion to correct an
illegal sentence. The State conceded
error that the minimum mandatory
terms
imposed at a
second
sentencing' hearing were illegal, .and
the DCA reversed. Yet, there ,is
more to this case that needs to be
discussed.
While, Fuston's case was
pending on appeal. the Department
of Corrections (DOC) sent a letter to
the trial court claiming that the trial
court had failed to impose minimum,
mandatory terms and that it was
required to do so. The DOC took the
position that the trial court had no
discretion but to impose ten-year
minimum mandatory terms for the
first two of Fuston's offenses and a
fivl?year minimum mandatory term
for the third offense. This position
contradicts the Supreme Court's
decisions in Burdick v. Slate, 594
So.2d 267 (Fla. 1992) and State v.
Eason, 592 So.2d 676 (Fla. 1992).
The DCA recognized that the
DOC regularly sends letters to the
trial courts. The DOC, however, has
no power to reverse a sentence, or to
disobey' a sentence, when it is Jiot
ambiguous.
The DOC has no
authority to impose a more onerous
sentence upon a' prisonet than the
sentence actually imposed by the
trial court, said DCA C~ef Judge
Chris Altenbemd.
If the State
believes a sentence is erroneous, it is
obligated to preserve this issue and
appeal it to 'an appropriate appellate
court.
Otherwise, the sentence
imposed by the court stands, and the
Department must comply with that
sentence.

Oliver v. Slate, 28 Fla. L. Weekly
D585 (Fla. 51b DCA 2/28/03)
. Florida prisoner Tony Oliver
appealed his judgment and sentence
arguing that he should be rl?

sentenced on the robbery charge
because the habitual violent offender
statute is tinconstitu~ional. The DCA
rejected this issue because the
unconstitutionality of the habitual
violent offender statute was cured
retroactively.
However, the. DCA
did certifY the question of whether
, the curative statute passed in 2002
should be applied retroactively.
[Editor's Note: It is noted here that
Chapter 99-188, Laws of Florida,
was declared unconstitutional in
violation of the single subject
requirement of Art~ III, section 6 of
the Florida Constitution by the
Second DCA in Taylor v.. Slale, 818
So.2d 544 (Fla. 2d DCA 2002).
Subsequently, the Legislature passed
Chapter 02-210, Laws of Florida, in
an attempt to cure the defect,. and to
circumvent the Taylor decision.
Recently, the Second DCA' declared
that
legislative
action
unconstitutional in Green v. Siale, 28
Fla. L. Weekly 0343 (Fla. 2d DCA
1/31'/03)

Akins v. Slate,' 28 Fla. L. Weekly
0594 (Fla. 5th DCA 2/28/03)
Florida

prisoner

Anthony

Akins appealed his conyiction' for
armed robbery with a firearm or
deadly weapon. Akins argued that.
his conviction should be reversed
because the state failed to present
any evidence that the item he carried
"was designed or may readily be
converted to expel a projectile by the
action ~f an explosive."
Akins
further argued that because there was
no evidence to establish that he
possessed a firearm, he could not be
convicted as charges. The DCA did
not agree.
The DCA found that the
direct
evidence
and
the
circumstantial evidence in the case
supported the conviction. The DCA
noted that it is not fatal to the
prosecution if the state does not
introduce the weapon into evidence.
Eyewitness testimony that the
defendant ·possessed a firearm is
. sufficient evidence to support a

fmding .that the defendant was in
possession of a firearm. Further, the
DCA held a conviction does not
require a showing that the ftiearm is
loaded or operational.

Johnson v. Siale, 28 Fla. L. Weekly
0116 (Fla. 4th DCA 12126/02)
. The Fourth District Court of
Appeal has analyzed the question of
whether fundamental error Can also
The DCA
be harmless error.
reasoned that an error which is so .
significant as to be fundamental
under Maddox v. State, 760 So.2d 89
(Fla. 2000) cannot also be harmless.
[Editor's Note: This writer has not
found a Florida Supreme Court case
that has found an error to be
fundamental, but harmless.
The
,DCA referenced a sister district's
decision that concluded that the
Florida Supreme Court found
fundament;al error to be subject to ,
harmless error review. In Reed v.
State, 783, So.2d 1192 (Fla. 151 DCA
2001), the First DCA cited State v.
Clark, 614 So.2d 453 (Fla. 1992) for
the proposition that the high court
considered the error at issue to be
both fundamental and. harmless.
However, just as the Fourth DCA
recognized, footnote 1 in Clark
suggeststhat the court considered the
error to be a "constitutional" error
rather than a fundamental one. The
assumption that fundamental errors
can be harmless may have arisen
from the fact that constitutional
errors, which are' not necessarily
fundamental errors, can be harmless.
State v. DiGuilio, 491 So.2d 1129
(Fla. 1986).]

'Hastings v. Krischer, 28 Fla. L.
Weekly DI56 (Fla. 4tIJ DCA 1/2/03)
A petition for writ of
mandamus seeking to compel state
attorney and circuit court to "obey
the law" citing failure to comply with
procedural requirements of habitual
offender statute is not av~ilable to
remedy' alleged errors in criminal
case where avenues of direct appeal
and post conviction relief 'provide
adequate remedy. •

18 - - - - , - - . , . . - - - - - - - - - - -

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

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

I.N. E_W_S_B_RIE_F_S

I

NATIONAL - A new study released
by Amnesty International USA
shows that while blacks and whites
are murdered in roughly equal
numbers in the U.S., those who
murder white people are six times as
likely to be executed. The statistical
analysis found that of 845 people
executed since states resumed capital
punishment in 1977, 80% were put to
death for killing whites, compared to'
only 13% who were executed for
killing blacks.
Similarly, several
state-Ievel studies done in the past
year have like results. In Illinois,
juries have been three times as likely
to sentence someone to death if the
victim is white rather than black. In
Maryland, a study showed that the
.death penalty is four times as likely
to be imposed when the victim is
white rather than black.
Other
studies in New Jersey, North
Carolina, Pennsylvania, Texas, and
Virginia have also shown that the
race of the victim is a factor in
whether the death penalty is
imposed.
[Source: USA TODAY, 4/29/03]

states to test their prisoner
populations completely.
[Source: New York Times, 1128/03]
NATIONAL - According to reports.
a new virulent antibiotic-resistant
form of staph infection appears to be
rapidly spreading through jails and
prisons. In Los Angeles County
more than 1,000 jail prisoners have
contracted the painful, aggressive,
and highly contagious skin infection
mimed
methicillin-resistant
staphylococcus aureus, or MRSA. In
2002, 57 L.A jail prisoners bad to
have surgery· to remove .MRSA
diseased tissue. The infection can
spread into bones and blood vessels.
Other states have also reported cases
of the disease among their prisoners
last year. Over 200 prisoners in
Texas, 90 in Georgia, 60 in
Mississippi, 20 in Pennsylvania, and
9 in.Tennessee.tested positive for th~
infection.
[New York Times, 2/4/03]

NATIONAL - On Jan. 25. at a
conference for prison medical
officials in San Antonia, TX, the
Ceriters for Disease Control and
Prevention (CDC) released a study
that bad been commissioned by
Congress that shows prisons have
become a primary incubator for some
of the nation's worst diseases. The"
report, Morbidity and Mortality
Weekly Report, shows that in 1996
at least 1.3 million prisoners were
released from jailor prison who were
infected with the deadly disease
Hepatitis C. That number accounted
for 29% of all cases estimated
nationwide. Additionally, in 1996
released prisoners accounted for 35%
of the 34,000 Americans with
tuberculosis. The CDC called on all

ruled on Apr. 29 that legal
immigrants who face deportation for
past criminal convictions can be
jailed and denied bail while awaiting
the deportation decision by the
Inunigration and Naturalization
Service (INS). The ruling by the
S.C1. applies to foreigners who are
"permanent residents" often knowJas
green-eard holders, and who have
been convicted of a crime that can
result in deportation. Under a 1996
law, when green-card holders are
released from prison they can be
taken into custody by the INS while
officials decide whether to deport
them.
The high Court's ruling
upheld that law and establishes that
such .immigrants can be detained
without a hearing ·to determine
whether they are dangerous or a
flight risk. Four ofthe Court's

NATIONAL - In a bitterly split 5 4 decision the U.S. Supreme Court

justices joined in a·caustic dissent to
the majority. ruling in the case
Demore v. Kim.
[Source: AP, 4130/03]
AL - A medical consulting firm
hired to review and report on the
quality of medical care provided to
prisoners
at
the
Limestone
Correctional
Facility,
found
"dangerous and extremely poor
quality health care" being provided.
Medical services at the facility are
contracted out to .NaphCare, a
Birmingham-based private company.
NaphCare disputed the findings of
the consulting firm, which also
documented that the death rate from
AIDS at Limestone is more than
twice the national average in prisons.
[Source: USA TODAY, 2/14/03]
AZ - The U.S. District Court in
Phoenix struck down an Arizona law
that made it a crime for prisoners to
make even indirect use of materials
generated off Internet websites. The
law
bad
prohibited
mail
correspondence with websites. The
Court was not persuaded that the law
was constitutional by the AZ DOC's
argument that even indiiect contact
with the Internet by prisoners could
result in fraud of the public,
prisoners contacting minors, or
making escape plans.
'
[Source: New York Times, 12/17/02]

CA - The U.S. District Court for
Northern California bas issued a
permanent injunction against the CA
DOC's enforcement of a policy that
prohibited prisoners from receiving
mail
that contained material
generated from Internet websites.
The Court found that the policy, as
applied. could not pass any prong of
a four-prong test established by the
Supreme Court to determine the
reasonableness of prison reguJations
tbatrestrict First Amendment rights.

----------------19----------------

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

[Source: Clement v. Calif. Dept. of
Corrections, 220 F. Supp.2d 1098
(ND CA 2002]
CA - In January California prison
officials held a public hearing on a
proposal that would allow the prison
system to take 55 % of all state
prisoners' income, whether such
income is earned ·in prison or sent to
prisoners by their families. The CA
DOC already takes 22% of prisoners'
income. The money, claims DOC
officials, would go to victim
compensation funds. Since 1992 $59
minion has been taken from
prisoners for such funds. Only onethird of prisoners' income comes
from prison jobs that pay 15 cents an
hour, the rest comes from their
families or friends.
[Source: L.A. Times, 1/15/03]
CA - Two Pelican Bay State Prison
guards were sentenced to federal
prison on Feb. 6 for conspiracy to
violate. prisoners' civil rights.
Former guard Edward Powers was
sentenced to 7 years in prison,
followed by 3 yrs. unsupervised
release, and fined $25,000.
Jose
Ramon Garcia received 6 years and 4
months in prison to be followed by 3
Both
yrs. unsupervised release.
guards were convicted of having
prisoners a~ck child molesters, sex
offenders, and other prisoners who
had problems with the guards
between 1992 and 1996. One former
prisoner testified that Powers had
offered to give him a half-ounce of
heroin and half-ounce of crystal meth
to stab another prisoner and even
furnished a knife for the job. Pelican
Bay has a history of corrupt prison
guards abusing and even killing
prisoners for sport.
[Source: L.A. Times, 217/03]
CT - In Feb. the Peanut Butter
Bandit was sentenced to 14 more
years in prison following a guilty
plea for escaping from Connecticut's
highest security prison in 1987.
Fredrick· Merril~ 56, got' his nutty
nickname for an escape attempt in

PerspectIves - - - - - - - - - - - - - - -

1968 when his mother brought him a
gun, money, and a handcuff key in a
jar of peanut butter. It's not known
whether the PB was Jiffy, or smooth
and creamy or crunchy style.
[Source: USA TODAY, 2/8/03]
FL - On Jan.25 Rudolph Holton was
released from prison after spending
16 years on Florida's death row
when it was finally determined
through DNA testing that the
evidence against him didn't hold up.
Holton was the IOJId person who has
been exonerated and freed from the
nation's death rows since 1973. He
was the 25th Florida death row
prisoner to have been exonerated
during the same period. Holton's
release was the result of his legal
representatives from the tax-payerfunded Capital Collateral Regional
Counsel, who represent indigent
death-sentenced
defendants
in
Florida.
With Holton's release
assured, Fla. Gov. Jeb Bush, as part
of his state budget proposal this year,
called on the legislature to eliminate
the Capital Collateral Regional
Counsel offices and attorneys. Bush
claimed this would save the state
$3.8 million a year.
[Source:
Lakeland The Ledger,
2/8/03]
FL - During April argument was
heard before the I Ith Circuit Court of
Appeals in the case Johnson v. Bush
which is challenging the validity of a
Florida law that permanently
prohibits citizens with a felony
conviction from voting even after
they have served their sentence. The
lawsuit, brought by the Brennan
Center for Justice at New York
University School of Law, asserts
felon
that
Florida's
disenfranchisement law violates the
U.S. Constitution and the Voting
Rights Act. An· amicus brief has
been filed in the case by 14 people,
including numerous former U.S.
attorneys, who argue the law is
unconstitutional
and
racially
discriminatory. Originally enacted in
I868 and re-enacted in 1968, the

20 - -

amIcI brief argues that the
disenfranchisement law was adopted
to provide a means of excluding
blacks from the voting booth. One
proponent of the law· in 1'868 noted
that the purpose of adopting it was to
keep
Florida
from
becoming
"niggerized." Today, almost one in
five black males in Florida are
denied the right to vote because of
felony
convictions
and
the
disenfranchisement law.
[Source:
St. Petersburg Times,
4/6/03] .
FL - According to a report released
by the Florida Department of Law
Enforcement in April, last year was
the 1I~ straight year that crime has
dropped in the state. There was a 1.2
percent drop in crime last year from
the year before. .The I-eport shows
that Florida has the lowest crime rate
Crime rates are
since 1972.
calculated on the number of crimes
committed per 100,000 people.
[Source: Fort Myers, The News
Press, 4117/03]
FL - A bill that will allow an
.increase in basic phone rates passed
in both the Florida House and Senate
and Gov. Jeb Bush stated he would
sign it into law following the regular
2003 Legislative session. Leading
telecommunication firms hired at
least 150 lobbyists to push for
passage of the law and contnbuted
more than $5 million to political
campaigns and parties before the
session started. Under the new law,
monthly basic phone rates for
Floridians could jump statewide from
between $3 to $7.50 during the next
four years and then increase as much
as 20 percent per year after that.
[Source: AP,4/27/03]
IL - Illinois Gov. Rod Blagojevich
stated in April that he will not lift a
three-year moratorium on state
executions even if the Legislature
passes bills intended to correct the
system. He said the changes still
would not ensure that an innocent·
person won't be executed. Former

_

FLORIDA PRISON LEGAL

Gov. George Ryan halted executions
in that state after several deathsentenced prisoners were found to
have been wrongly convicted. At the
end of his tenn as governpr in J~.,
Ryan commuted the sentenced of all
167 death-row prisoners; most now
face life without parole.
[Source: USA TODAY, 4/25/03]
IL - The llIinois Supreme Court
ruled in Feb.' that sex offenders as
young as 12 years old can be labeled
"sexual predators'"and be required to
register as same the rest of their lives
under IL law. Three of the five
justices on' the Court, however,
called on the legislative to rewrite
the law saying it is inconsistent w~ .
reason, logic and common sense.
[Source:· Washington PotU, 2123/03]

There are currently over
23,000 prisoners incarcerated in the
Maryland prison system and the
system requires a $1 billion y~ly
budget. In Jan. Gov. Robert Ehlich
appointed Mary Ann Saar, a fonner
probation officer, as head of the
prison system'in ~at state.
[Source: Washington Post, 1/23/03]

MD -

PA -The Pennsylvania state prison
. system population recently topped
40,000 for the first time. The state's
26 prisons are now operating at
115% of capacity. The PADOC
Secretary, Jeff Beard. said his
department would be asking the
Legislature to reduce sentences for'
drug and alcohol offenders this year.
[Source:
Philadelphia Inquirer,
1/27/03]

VA - Virginia haS started collecting
the DNA of all persons who are
charged with a violent. felony in the
state. If the person is acquitted at
trial or the charge is later dropped,
the DNA data will be expunged from
. the state's database.
Currently,
Virgima has over 200,000 DNA
samples on file.
[Source: AP, 1/1103] •

Perspectives - - - - - - - - - - - - - - - . -

r'NOW'AvAiiABi'Er'~

i Prison Nation Is Prison L.e- i .

FAMILIES AGAINST
INFLATED RATES
(FAIR)
CAMPAIGN
Are you tired of the high cost, of
the collect-call phone rates being
charged the families and friends
of Florida state prisoners?
FPLAO intends to do something
about those exorbitant rates, but
your help is needed. If you have
access to the Internet, log on to
ww.fplao.org to participate in the
FAIR Campaign online. You can
also write and receive a FAIR
Campaign Action Packet, to
participate in the effort to achieve
lower rates. Together, we can
make a difference. Write for your
Action Packet today and visit
www.fDlao.org to get'lnvolved.

FAIR Campaign
P.O. Box 660-387
Chuluota, FL 32766 '

PrisOners: If you would like your family to
receive Information about the FAIR
Campaign and an Action Packet. send
their name and address to the above.

MARY's MAGIC
an

Hello. I'm Mary. , have
incarcerated son and feel
your struggles. I know how
important it is to send nice
gifts to your loved ones. Send
for my catalog and see what
services I offer (no pen pals).
SASE - get 50¢ coupon for
next order.
'

Mary's Magic
Post Olfice Box 80291
Rochester. Michigan 48308

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 21

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i Imprisoned In the United States i
i at any given time and how they i .
i are treated while In QJstody. •
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; or MasterCard by calling 206-781-6524 :
Prisoner Art .
Exhibit
For the first time in the state of Florida there
will be an Art Exhibit exclusively for prisoners. The
show will be from December 12,2003 until March
7, 2004 in the historic Gov. John Martin house
located at 1001 DeSoto Park Dr., Tallahassee FL.
We ate asking for photos ofwork or slides, so we
can select the best representative work to show. We
need,these mailed to us by July 30. 2003. They haVe
restrictions: no nudity, 'no violent themeS, and no
'" religious iconography. We expect to haVe paintings,
drawings, wood sculpture. collages, pen and ink
sketches. Of course no sales are allowed. You can
send photos, slides, or the pieces themselves, to us
at:
PAPILLON Florida
P.O. Box 14984
Gainesville, FL 32604-4984
If you want tl! send the pieceS themselves, you
must send a description and media, name and
institution along with a SASE FIRST·so we can do 11
notariUd receipt form to send to you. We want
everybody secure in the knowledge their work will ..
be safe in our care. YOU WILL HAVE TO HAVE
A PLACE FOR US TO SEND THE WORK .
AFTER THE SHOW OUTSIDE THE PRISONS.
THE DOC WILL NOT ALLOW US TO SEND
THE PIECES BACK IN...unless they ate simple
pen and ink drawings or water colors that meet the
size restrictions for mailing.
Families can call me at (352) 466·3706 or FAX
(352)
4660705
or email Kathleen @
KATHl.EEN PAPILLON@hotmail,com
,
Three professional Florida artists will judge the
show and give ribbons for top three in each media
and a best in show! Good Luck and please spread
this information around

_

FLORIDA PRISON LEGAL

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

FPC Chairman Resigns as
FDLE Launches Criminal
Investigation
by Bob Posey
On May 12, 2003, mainstream media sour~es briefly reported the
resignation of Florida Parole Commission (FPC) Chairman Jimmie
L. Henry. According to those sources, Henry's resignation,
effective on May 9, only three days before the Florida Department
of Law Enforcement confirmed it had initiated an investigation
involving the Commission and Henry based on information relayed
to law enforcement officials by the state Auditor General's Office.
Media inquiries to the Governor's Office were ~tymied by Bush
press secretary Alia Faraj saying only that the governor. had
accepted Henry's resignation, and that she had no further
information about the decision. FDLE spokesman Al Dennis
would only comment that the FDLE is investigating a "matter"
concerning the Commission and Henry. Dennis declined to be more
specific. The sparse media reports concluded for the public that it
"wasn't clear" that Henry's resignation was related to the FDLE's
criminal investigation.
Henry began his career in state government in 1979. He started
out with the Florida Commission on Human Relations and moved
on to work with the state Comptroller as a financial investigator
dealing with cases involving theft and abuse of state funds. In 1987
Henry was promoted to the position of Senior Cabinet level matters
related to executive clemency, he later became Chief Cabinet Aide.
In 1997 he was appointed to the Florida Parole Commission and in
1998 became the Chairman of the Commission. In that position
Henry had statutory authority and full responsibility over
administrative functions, including finances, of the Commission.
Although attempts were made to cover it up, Henry took over
the top position In the Commission following a string of scandals
that exhibited an ingrained core of corruption within the agency...
For the past two decades, ever since guideline sentencing policies
replaced indeterminate parole-eligible sentencing for most crimes
In 1983, the FPC has struggled to maintain its existence. Faced with
a diminishing parole-eligible prisoner population of approximately
5,600 people, and with Commission activities increasingly being·
duplicative of functions also being performed'by the Department of
Corrections, the Commission, according to its many critics, has
become a waste of taxpayers' money as an agency that has outlived
its purpose and usefulness.
Henry was. appointed to the Commission at a time when it had
become obvious the agency was long overdue a complete
reorganization, if not outright elimination. In 1996 and 1997 the
Commission was forced to tight tooth-and·nail to counter bad
publicity generated· by revelations· of political favoritism in parole
decisions, the mistaken release of prisoners, sexual harassment
charges against a parole commissioner, and Commission employees
being paid large slliaries for work never done. Legislative attempts
to abolish the anachronistic agency were unsuccessful, with· one
former legislator, Rep. Robert Sindler, commenting in 1996 that,
"They have. a lot of politiCal connections and they call them in.
They are a master at surviving." With Investigations b~ing
conducted by the state ComplCOlIer's Office Into mismanagement
and misappropriation oftaxpayer money by the Commission, Henry
being appointed an FPC Commissioner at that time from his top
position at the Comptroller's Office was either an ideal choice or an
odd decision in light ofdeveloping events.
While the mainstream media appears to have been stonewalled
.or silenced about what exactly the FDLE, Florida's version of state
\

police, may be investigation concerning Henry and the
Commission, some facts have been discovered by staff of Florida
Prisoners' Legal Aid Organization (FPLAO). FPLAO has been con
ducting its own investigation of FPC activities for the past two
years as part of a -project launched May 1a to increase the number
of parole releases and decrease the number of parole revocations
for technical violation in Florida, while focusing public attention on
FPC'activities.
An examination of FPC records after Henry took .over as
Chairman reveals that little changed under his watch, and some
things may have got worse. A review. of FPC financial records
between Jan. 1998 and May 1999 revealed purchase.requests had
not been. properly completed,purchase order dates not preceding
the dates goods or services were received, transaction records not
being kept as required by state law, and amounts being paid for
goods or services in amounts greater than agreed upon.
Further investigation of records up to 2002 found Commission
employees receiving pay raises with no justification of the raises
being docum'ented as required by state rules, and some employees
who left the Commission were overpaid for unused leave time. As
time went on the problems got worse. FPC records showed that
some employees were being paid travel expenses for. travel
between their homes and office, others received travel expenses for
travel between home and other locations. Instances were found
where· employees. were using .state - owned cell phones to make
personal calls and not reimbursing the cost of the calls. Evidence
was .found. where state - purchased property was being declared
"surplus" and disposed of by a single FPC employee, contrary to
state law, and Commission property not being properly accounted
for or insured for loss, damage, or theft.
Perhaps the most damaging discov.ery was the fact that in June
2000, the last month of the fiscal year, instead of reporting and •
.turning bac.k over to the state treasury unspent money from the
FPC's budget, Henry approved "merit awards" of between S200 to
SI,OOO for 144 of the Commission's 159 employees. Six months
later he approved 15 more "merit awards" totaiingSI5,223 to the
remaining 15 employees who didn't get an award in June of that
year. The total amount of the "awards," which are only suppose to
be given for outstanding performance and achievements above and
beyond normal job expectations, was more that SI05,OOO.. Again
contrary to state rules and laws those awards were not reported to
the state Department of Management Services, which reports such
awards to the Legisiature each year. Nor was a S8,364 alleged cost
saving suggestion award given to one employee in Dec. 2000
reported to OMS. A later calculation of that aware, after it was
brought to the attention of the Auditor General's Office, showed
that the suggestion was woith a maximum award of$446.
Additional problems concerning Henry and Commission
employees have been brought to the Auditor General's attention·
now that cannot be discussed at this time considering the pending
investigation by the FDLE. As the FPLAO Parole Project
continues, further information concerning the FPC will be
disClosed. Henry's resignation and the FDLE investigation
promises to be just the first ripple in a wave of change bearing
down on the Commission.
.
(Soun:es: AudilorOCllCllll Reports tl13539l11ld 02.095: FPC reconIs: AP arnela. 5112103)•

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 22 ------------~---

- - - - - - - - . . . . ; . . - - - - FLORIDA PRISON LEGAL

Perspectives :. . '------------~

Florida Prls.oners' Lega,IA.I~ Organization Inc.

BECOME A MEMBER
YES ! I wish to become a member of Florida
Prisoners' Legal Aid Organization, Inc.
1. Please Check ./ One:
CJ Membership Renewal

'3. Your Name and Address (PLEASE PRINn

_ _ _ _ _ _ _ _ _ _ _---.,;DC#
Name

_

CJ New Membership

AgencylLibrarylInstitution IOrgl
2. Select ./ Cateiory

o

SIS Family/AdvocatelIndividual

q

$9 Prisoner

Address
City

State

Zip

'CJ S30 AttomeysIProfessionals

CJ $60 Gov't AgencieslLibrariesiOrgsJetc.

Email Address and lor Phone Number
,

'

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

~WJ!I$~~~_~;~~~j

------'llllliJiln------

!\" ••
:P'~i~:e"chl!,~~yoyr~~iUog,J~~~I;,t():,q§t~@Jti~K~~~f~@t~f".:
-~:. Attention Reader:
)l;l~mli~rshiR',andlQf!a~)mc;)ntn:'Q',{~~~$i9~~~,_
-,~., 'y@1Y~s\@:n(:
,;_tb~;\(QP./Ii~~'~<:lf-tl:1~;:maj!_iJ'j9,jl,~Xt~'t;~wJl[j;Jp:~1')~ly;~,.
.:I~@1f101(~Yi All inmates that were
·.~Nqv'·!~4-~. T:ha~:q~f$iJn9j~(~:'\~~"J~~f,:~~\ft~AA~P~~tf!convicted in Orange
'QI'YQut; ci:ir~rit m~tnP~rsl1ip'Y1itt( e;ell~l!>~~fJi ' .- 4 ';n<tfd': County, FL, after a jury
J~fi~~"f"$as:~,take,', Jh.e.:tlm~! i9,\~ij.lp~i~:~~r
'., ,1~~ trial during the time
,,;t&:-~n~w-y~u~meJ1tb~tf$hig'-_~:Ntt9Jl!:~~~~(;mp~
. .~'~~1~Jl~i, frame of January 1991:.:exPJiiti()I1,Cf~fe.:~.. .'-., .': ". ';,,;,'.' i'ii'" ;::i'i·:':.'\Ar;,;~;>j{i>\>-;<.:::;\":: December 1996 in Court
'Moving?: Trans{erred7, _I~' ~QtI' pI6~~,tA-;":C~hj~!~f~!.tlttji;:
elit~b$e,d 'al;fdre~S' chal1g~,' :fo!'m'.sQ ,tljat,Stfi~~ i~~'§r;~h.{pl'­ Room P, Room 215,
~rQlIs-:and mailin 'list'cali be,a -aated:'Tl1anR--'" oult;':,,:,:Y~;lo' ; " .~' (Alice Blackwell White's
COllrt Room) are
'
elicouraged to write Mr.
Peter K. H. Hansch" P.O.
Rox 76249, Ocala,FL
3448t-0249.

Mr. Hansch is
specifically looking for ,
persons that remember a
large support column .
which obstructed their
view during their trial
proceedings.
All correspondence will
be kept confidential, and
all inmates that respond
will be kept informed of
any possible future
litigation regarding this

matter.

-------JIII1It1BIIu-----23 - - - - - - - - - - - - - - -

PRISON LEGAL NEWS
SUBMISSION OF MATERIAL TO
FPLP
Because of the large volume of mail being
received. financial considerations, and the
inability to provide individuaJ legal assistance.
members should not send copies of legal
documents of pending or potential cases to
FPLP without having first contacted the staff
and receiving directions to send same. Neither
FPLP, nor its staff. are responsible for any
unsolicited material sent.
.
Members arc requested to continue sending
ncws'inronnation, newspaper clippings (please
include name of paper and date).
memorandums, photocopies of final decisions
in unpublished cases, and potential articles for
publication. Please send only copies of such
material that do not have, to be returned. FPLP
depends on YOU. its readers and members to
keep . informed. Thank you for your
cooperation and participation in helping to get
the news out. Your efforts are greatly
appreciated.

priSOn ugaJ Nnvs is tl 36 page: monthly magazine whi~ has
bcctI published since 1990. It is edited by Washington state
prisoner Paul Wright. Each issue is paUcd with summaries
lUld analysis ofr=att court decisions fiom uound lhe c:ounlJy
dealing with priscner. rights nnd written from 11 prisoner

perspedivc. The nlllgl)Zine often canies lUtic!es from

If SOt please complete the. below information and mail it to FPLP so
. that th~ mailing list can be updated:.

I1ttmneys giving how-tD litigation advise. Also included in
each issue ate news lUticl~ dealing with prison-rel4ted

struggle l1J1d ae:tivism from the U.S. and oround the world.
Annual subscription rates an: S18 for prlsoners.lfycu can't
3fford to scrtd SI8 at em:c. send at least S9 and PLN will
prorate the issues llt Sl.SO.each for a six mon1h subscription.
New llnd unused pos13gC stamps or embossed envelopes may .
be used as payment.
Fer non-incarcerated individwlJs, the yearly su~tion
. rate is SIS. IM1itu1icna1 Clt ~cssioD31 (3ttameys, b'briries,
government agencies. crganizaticns) subscription rates are
$60 11)'eM. A sample copy of PLN is avail2ble for St. To
subscnbe to·PLN. ccntaet:
.
.Prison ugal News
2400 NW BOth Street
PMBU8 .
Seattle. WA 98/17

See PLNs Website at
http://www.prisanlegalrrews.org

NEW ADDRESS (pLEASE PRINT CLEARLY)

Name
lost.
Address

City

Zip

State
[?)MaU to: FPLP, P.O. Box 660-387, Chuluota, FL 32766

EmanPLN at

webmastet@l'rlsan/ega/nnvs.org

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