FLORIDA PRISON LEGAL

ers ectives
VOLUME 10

. ISSUE 3

ISSN# 1091-8094

Former Parole Commission
Chairman
Sentenced to Prison
by Teresa Burns Posey

TALLAHASSEE - The fonner chainnan of the Florida
Parole Commission is going to prison. not to' visit paroleeligible prisoners that the commission refuses to parole to
justifY its continued existence, but to serve a three-year
sentence himself for state expense accoUnt and time sheet
fraud. (See: FPLP, Vol. 9, Iss. 5, "Fonner FPC Chainnan
Arrested, Investigation Continues.")
Jimmie L. Henry, 54, was sentenced May 10,
2004, to three years in prison follow~ by 25 yea~ of
probation and ordered to pay more than $109,000 in
restitution by Second Judicial 'Circuit Court Judge Tom
Bateman. Henry has already repaid about $26,000 of the
money he stole from taxpayers out of the parole
Commission's multi-million dollar budget and will have
to pay about $400 a month after he gets out of prison.
Henry, who was arrested and charged last August,
pleaded no contest in February 2004 to 109 counts of
falsifYing his expense and time sheets while head of the
Parole Commission (FPC). He had been forced to resign
from his $85,355-a-year job at the commission in May
2003 when infonnation was furnished to the Florida
Department of Law Enforcement (FDLE) that Henry and
several other top commission officials were stealing
money,
falsifYing records,
misusing
taxpayers'

AY/JUNE 2004

commission funds, engaged in a cover-up of an alleged
homosexual rape attempt by a top FPC official and
allowing commission property to be improperly disposed
of. (See: FPLP, Vol. 9, Iss. 4, "Florida Parole
Commission: A Culture of Corruption.")
Henry was the Parole Commission's chairman
from 1998 until his resignation last year. According to the
FDLE's investigation. in the two years before he was
forced to resign Henry padded expense reimbursement
vouchers for trips to commission field offices, meetings
and other official appointments. In some cases Henry
even put in reimbursement claims for entire trips that
never occurred or during which Henry conducted personal
business. He was also charged with using state funds and
credit cards to make thousands of dollars of personal ..
purchases or to pay personal bills with.
Although Henry waS the only one
charged with crimes at the commission. he was nQt the
only criminal at the agency, according to a report released
by the state Auditor General's Office on August I last
year and the FDLE's investigation report. Four top FPC
administrators were also found to have either known about
Henry's illegal activities and worked with him to make his
fraud possible or had themselves engaged in questionable
acts related to state expenditures. All four of those
administrators had received large salary increases and
.. bonuses during Henry's tenure running the agency that
state ,aUditors later concluded were unjustified.

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FAMILlllS ADVOCATES PRISONERS

ON
THE
INSIDE

Post Conviction Comer •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 8
10
PCA v. Exhaustion of State Remedies
Abuse and Neglect at Detention Centers•••••••••.•••••••••.12
Kosher Meal Program a Joke
13
Inmate Account Processing Fee Legislation
:
16
Notable Cases
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17
The Rise and Fall of Habeas Corpus
20
Resource List ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 23

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FLORIDA PRISON LEGAL
PERSPECTIVES
I'.0. DOX 660·:187
OmJl.UOTA. Fl. :12766

Publishing Division of:
FLORIDA PRISONERS' LEGAL AID
ORGANIZATION, INC.
A SOl (e) (3) Nen-ptU1I1 OJpniWion
Fu (407) 568-0100
Email: rqrp((fMd mm
WcbsilO: WWl! rei... RI.

FPLAO DIRECTORS
Teresa Bums Posey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton, Esq.
Oscar A. Hanson, CLA
L.inda E. Hanson
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FPLPSTAFF
Publisher
Editor
Associate Editor
Research
Administrative AssistaOt

Teresa Bunts Posey
Bob Posey
Oscar A. Hanson
Sherri Johnson

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ADVISORY BOARD
wmilllnVan~k

Philip8I&Iey
MidIlIelllmhrix
SIlSllllMannms
OeneSalser
MaIk Sherwood

E1izalle!h Orcen

JClhn Huds~ln'
TenyVaughn

Enrique Diaz .
David Rcuner

Undll Oeuicb
An!hClny Slulll1

FLORIDA PRISON LEOAL PERSPECTIVES (FPlJ') Is flblisllcd up to Ii,limn a
b7 Flarida PrisalIcn' LqaI Aid 0rp:izIli0lI.1=.. P.O. 1lol 660-3S7, CIIu1_

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tyIIClIIS. FPLP ptOriIca I whiclc for -.ln~ alld _affcaiDB
piscnen. their Wittlia. rriands, Io\'Cd CIIlU alld the S-ral pWlic of Flerida.
RcdlleIica or enme alld rocldmsm. maiIlI_ orlimily lia. civil rishU. i=poviDB
coodiIicN ef _1lACmCUt. po_ioa IlciUcd CClIII icccu &lr p r i _ IIId plOnICrins
aceatIllIIIl<1ilJ ofpriscll c1r1Cills lIN all iaIICI FPLP is dniJl'Cd to address..
.
FP
-.anomcy vollllllCCr SIaITCIIIIICI mpond to requaII f~ lcplllllvicc. ~
co the
olmaiJ that is racivcd alld \'OIIIlIUU SlllTlimiUlioas. all corrupondo,,"
that is ~wcd _
be mpocdcd 10,M aU mill docInaivo ind,vi4uall2lmlioll.
~ is fI'IIIIcd.co reprilIIllIIIcriaI appcuioa in FPlJ'lhat docIllCl indicate it i.
ca,)'riJ1llcd pIO\'idcd that FPLP and II\)' indicIlcd lIItllor an: id=ttiflCd ill L'I: reprilII
alld I CCIPJ eftbo pwbIiaIioa in wllidltbo lllI1aia1 is pllhlishcd is pnlvi4cd 10 the fPLP

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isllClllllCllllto be .1lIbstil1llC fer"sal or ethor pnlrcuioml advice.
Tbo lllIICriaI in FPLP IIlouId nor be Idied 011 u 1llIlIori1llM: alld llIIY IICl contain
IllI1lcictll iIIfCllllllictlIO deal with l"pI pmIcm.
FPLP b allltDIlicaIlJ iealco all . . . . . ctFPLAO,lcc.• u .lDRIIIbonhip bcnoflt.
MImbcn/lip lias fer FPLAO,Illc., cpoIIlO,arty and llro S9 fer prisonon; S fer
IiIDiIy IIlClIlllcnIiII S30 fer ~ aIldS60 fer Ipccics. Iibtaries. IlI\d
/nsIiI1IIioIIs. FllIIil7l11011illcn er Io\'Cd _ or prUctlcn .mo an: IUldlo to ~cnIlhc
buIt: mcmbcnItlp cilia lilly .-;"" lllClIIborship fer any .... dcoalion they can offen!.
Priscocn IIUlY Py mcmbcn/lip dues witb _1IIUI1Cll ~ oumps. Prisoncn on
t.L.=b fG.. Of eM "hu C':uu~ affOtd rnt1nbuship due. mil)' request II Wai\Cf cf ~
..tlidl will be palllcd u Iilw=s pa1Ilil.

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Perspectives

Those administrators were allowed to resign 'without
making any reimbursements after FPC Commissioner
Monica David took over as the commission's chairman
when Henry left.
Other FPC employees were also implicated in
wrongdoing at the agency, which makes parole decisions
on Florida's approximately 5,000 remaining parol~
eligible prisoners (parol~ligible sentencing was
essentially abolished in Florida for most crimes in I 983).
The auditor general's and FDLE's investigations
found that Henry's personal assistant knowingly
participated in preparing Henry's fraudulent expense and
time sheets and falsified records to try to hide
discrepancies. Auditors also found that between 200 I and
2003 other FPC employees used· FPC purchase cards to
make over S80,OOO in purchases for which no
documentation was kept showing receipt by the FPC.
Some employ~ were found to have FPC property at their
homes that was not authorized and others "disposed" of
valuable state property without following proper
procedures to verify whether the property should have
been disposed of or showing where it went. Neither
Henry's personal assistant nor anr of the other FPC
employees were ever charged with a crime. That was not
the only anomaly in the situation.
Even though the arrest, conviction and actual
sentencing to prison of the head of a state agency for
public fund fraud, and documented corruption among
other top agency officials, would normally invoke a large
scandal and elicite widespreadmedia coverage in Florida,
for some reason it didn't.
When Henry resigned last year there was almost
no mention of it on television news shows anywhere in the
state. Only a couple of newspapers covered it with small,
brief articles only vaguely referencing his resignation
might have. something to do with an investigation of the
FPC. Nor did the mainstream media provide much
coverage a few months later when it came to light that a
top FPC administrator had been accused of a homosexual
rape attempt in 2001 by a fellow FPC employee, who
Henry had approved being paid more than SSO,OOO in
taxpayer hush money.
When Henry was finally arrested in August, again
television and radio news avoided reporting it and only a
couple of newspapers covered it, only one of which
provided anyinfor'mation about the auditor general and
FDLE investigators' findings of other FPC employees'
involvement and illegal activities. Henry's sentencing
received even less mainstream media coverage. Very odd,
. according.to some who have been following the case.
Last year when it was discovered that employees
of the Department of Children and Families had lost track
of some children they were supposed to be supervising,
resulting in the head of that agency simply being 'replaced,
it garnered widespread media coverage for weeks. Yet,
when the head of the FPC is charged with several crimes,

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sentenced to prison, and widespread corruption
documented among numerous top agency officials, it was
non-news, largely unreported to the victims - Florida
taxpayers.
There is little doubt that the FPC maintains a low
profile and likes it that way. Tucked away in a building
next to Department of Corrections in Tallahassee, most
Floridians are unaware that their tax dollars fund an
agency that obstensibly is devoted to the parole of
incarcerated felons, when, in fact, parole sentencing was
abolished for all but a narrow category of capital crimes in
Florida in 1983. Before then the FPC did serve a useful
function, the majority of people sent to prison in the state
were eligible to be paroled under supervision. When
parole-eligible sentencing was changed to guideline
sentencing in 1983, however, the number of parolee\\g\ble prisoners dwindled, until now only about 5,000· of
Florida's 80,000 state prisoners are eligible to be paroled
by the FPC.
To survive, the FPC has retreated to the shadows
of Florida government.
There is little attention or
oversight given to the agency.. It largely operates in a
vacuum, for example: parole-eligible prisoners up for
parole never see or appear before the c9mmissioners who
decide their fate, parole interviews .held at the prisons
between lower level parole examiners (who can only make
recommendations to the Commission) and parole-eligible
prisoners are closed to the public, victims and the press.
Whenever· state auditors conduct performance reviews of
the FPC, the resultant reports are compendiums of
incompetence; missing, incomplete and inaccurate
records; duplication of work performed by the DOC;
mismanagement of resources and funds, and the list goes
on, and has for many years.
Perhaps the whole scenario with Henry and the
underlying scandals that came to light concerning the FPC
this past year were non-news to the media because no one
expects anything more out of a defunct agency that few
understand why it still exists. Or, perhaps it was too
embarrassing to Jeb Bush's administration to publicize
widely.
It could be interesting if Henry decides to tell all
he knows, now that he will experience firsthand a measure
of the incarceration he perpetuated on others. •

Taxation Without Justification
by Mark Osterback
Have you ever heard another prisoner claim that
the state can't tax our canteen purchases because we're
incarcerated? Well, unfortunately that is simply not ·true.
Section 212.06(3)(a), Fla. Stat. (2003) provides that any
"dealer" in Florida (prison canteen) making sales of
taxable personal property for distribution, use or
consumption shall, at the time of making a sale, collect tax
from the purchaser. But sales tax is not across-the-board

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

on all sales - only certain items are subject to them.
Section 212.08(1)(a) and (b), Fla. Stat., contains
exemptions for .what are loosely defined as "general
grocery items." A term, which includes bakery productS.
When Keefe Commissary Network (KCN), a
private company, recently took over operations of Florida
Department of Correction's prison canteens statewide,
they expanded the number of food items offered for sale,
including several different bakery products.
Upon
arriving at Sumter Corrections Institution earlier this year,
where KCN had only recently taken over canteen
operations, it came to my attention, almost by accident,
that two identically priced packs of cookies had different
actual costs.
An acquaintance, with whom I was talking, was in
the canteen line and got into an argument with the fellow
in front of him who claimed all cookies cost $.54. Much
to our mutual astonishment, the fellow turned out to be
correct as the Iced Oatmeal Cookies, priced at $.54,
actually cost $.58 with sales tax. Having previously
researched tax laws, I immediately realized that KCN was
either ignorant of the tax exemption on bakery products in
Florida, or someone was trying to make some extra
income. In addition to Iced Oatmeal Cookies, KCN was
levying sales tax on Iced Honey Buns, Iced Cinnamon
Rolls, Dunkin Sticks, Chocolate Iced Donuts, Moon Pies,
Chocolate Cupcakes, Swiss Roils and Caramel Popcorn.
An inquiry was made to the Sumter CI Keefe
representative about why those items were having sales
tax levied on them. The representative responded that· the
taxation of those items was justified because each had a
glaze or icing on them and were considered "candy".
While it is true that candy (such as Snickers Bar) is not
exempt from sales tax under Section 212.08(1)(c)II, FIB.
Stat., the KCN representative had embraced a far broader
definition of candy than the one employed by the Florida
Department of Revenue.
"Candy and similar items do not. include: jams, jellies,
honey, preserves or syrups; frosting; dried fruit; breakfast
cereals; prepared fruit in sugar or a similar base; candy
primarily, intended for decorating baked goods; and
similar items;"
Rule 12A-1.0II (I Xa) La., Fla. Admin. Code (2004)
(emphasis added).
A more extensive challenge was mounted to this
practice which resulted in KCN's eventual capitulation
and removal of the taxable designation (which appears as
a "Y" on canteen receipts) on the items in question from
the canteen's computer inventory.
Whether this was a localized practice here at.
Sumter 01 or one that is in effect statewide is not known.
The primary intent of this article is statewide notice of the
problem that existed here at Sumter CI and our successful
correction of same. This way, if the practice exists and I

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The increase is a result of the "get-tough" policies
of the 1990s, a decade during which mandatory minimum'
sentences, three-strikes and truth-in-sentencing laws' were
implemented or expanded. leading to longer prison
sentences and limited or eliminated parole options.
Today, the average prisoner serving a life sentence spends
37 percent more time in prison than those a decade agoup from 21 years to 29 years - and more than ever are
being sentenced to "natural life" without any possibility of
"A taxpayer who has overpaid tax to a dealer, or who has
ever being released.
,
paid tax to a dealer when no tax is due, must secure a
Those findings are from a new, first of its kind,
refund of the tax from the dealer and not the Department
SO-state study of life sentences conducted by the
Sentencing Project, a Washington, DC, criminal justice
ofRevenue."
reform organization. The report on the study's findings
If you have retained your canteen receipts, then
was released during May 2004.
calculating the amount of the improperly levied tax should
Supporters of the "get-tough" policies say the fact
that so many •criminals are locked up for life has
not be difficult in requesting a refund of same. Even with
receipts, KCN isn't going to make it easy in obtaining a
contributed to the national crime rate coming down 35
refund. It may beicome necessary to grieve the matter, but,
perc:ent during the same period. They claim the study
as with all dealings with the Department and its hirelings,
shows the "get-tough" policies have been successful in
its best to submit an Inmate Request first and give the KCN
reducing crime.
representative a reasonable amount of time to respond
"What we're seeing is the high crime rates we
suffered starting in the 1960s caused public policymakers
before filing a grievance.
to finally realize one contribution they could make toward
If you have not ,retained your canteen receipts,
you're still entitled to a refund, but it will likely be more
restoring law and order is to increase the number of
serious and violent offenders in prison and also to increase
difficult to obtain one.
KeN is req. by Section 212.13(2), Fla. Stal, to
the sentences which they serve," says Dave Muhlhausen,
senior policy analyst at the Heritage Foundation. "Its
maintain records of tax levied pursuant to Section
'
212.06(3). The canteen computer system can produce a , worked."
receipt that lists each purchase a prisoner has made at that
Critics of the policies, however, claim the
location. You should request one of these receipts, which
inflexibility of them has packed American prisons with
juveniles, indigents, mentally ill people, elderly inmates
I believe is called a "site of purchase" receipt, to help you
calculate the amount of erroneously collected sales tax
and battered women. In California, close to 60 percent of
you are due to be refunded. If KCN claims it camot be
those sentenced to life under the state's three-strikes law
done or refuses to produce it, that too should be grieved to
are serving time for non-violent .offenses. The Sentencing
Project's report estimates that 23,500 of those sentenced
the KCN representative.
,
to life in U.S. prisons sutTer from mental illness.
If etTorts to secure your refund are thwarted or
your grievances (after going to Tallahassee) are denied,
"These sentences are having very significant
then the Dept. of Revenue should be contacted to formally
impact on the size and costs of incarceration," says Marc
lodge a complaint against KCN. The agency can be
Mauer, the assistant director of the Sentencing Project and
one of the authors of the report. "Every time a judge
contacted at: Dept. of Revenue, Tallahassee, FL 323990100. You may have better results, however, by writing:
makes a determination to sentence a person to life,
conservatively speaking it will cost $1 million to keep
Tax Information Services, Dept. of Revenue, 1379
Blountstown Hwy., Tallahassee, FL 32304 (Phone #
them locked up for life," said Mauer. "If that person is '
8501 488-6800). Copies of Rules 12A-1.0l1 and 12ACharles Manson, few people will have a problem with
1.014, Fla. Admin. Code, can be obtained by requesting
that. On the other hand, if it's a battered woman who
strikes back at her accuser and kills him, that presents a
them from Tax Information Services as well. •
different set of questions."
Some corrections officials are expressing concern
Life Sentences Increase As
over the challenges they face on a daily basis trying to
Crime Rates Drop
house, feed, guard and provide medical care to an
increasing number of prisoners sentenced to long terms.
Since 1992 the number of' convicted felons
"Given the budget cri"sis it's a challenge to get the
serving life sentences --, 127,000 nationwide' - has . resources. You have to reexamine everything that you're
increased 83 percent. Over a quarter of such all-time-high
doing to find the money to fund the healthcare in
number of "lifers" are ineligible for any type of parole,
particular, which is the fastest growing expenditure within
meaning they will die in prison.
or persists elsewhere, conscientious prisoners at those
places where it does exist or, persist can take steps to
correct it there.
Getting them to adhere to the law and stop levying'
sales tax on exempt items was the easy part. Obtaining a
refund of the improperly collected tax is another matter
altogether. According to Rule 12A-t.Ot4(7), Fla. Admin.
Code:

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a facility," says Joe Weedon, director of government
affairs for the American Correctional Association.
Feeling the impact, state legislatures around the
country have been passing reforms, changing some
mandatory sentencing laws so they're more flexible, and
. even increasing funding for reentry programs to try to
reduce recidivism. However, some reform advocates and
corrections experts warn that any savings realized from
the recent changes could be negated by the increasing
costs associated with imprisoning a record number of
lifers. "If these 'lifer' trends continue, they're very likely
to overwhelm any reform that takes place," said Mauer.
The report referenced in this article can be
obtained by contacting: The Sentencing Project, 918 F.
ST., NW, Ste. 501, Washington, DC 20004, Ph. # 2021
628-0871. •

-OPINION Land of Second Chance?
by Linda Hanson
As llistc;ned to President Bush's latest State of the
Union address, I thought my mind was playing tricks on
me. After all, I'm reaching middl~age where those sort
of things begin coming into play. But this wasn't one of
those times, thankfully.
. Buried underneath all that political mumbo
jumbo, Bush outlines a surprising new initiative to help
prisoners reintegrate back into their communities once
released. The "prisoner ~try' initiative" he proposed is
admirable considering that record budget deficits are
forcing reductions in most other non-entitlement domestic
programs. Bush's modest $300 million ov~ four years is
long overdue and suggests the seriousness. of our nation's
ever-growing ex-prisoner population.
For over three decades our nation has incarcerated
more than any other nation. We currently own the title as
having the highest incarceration rate in the world. More
than 14 million Americans have felony convictions; more
than 600,000 prisoners will be released from our prisons
andjails this year.
As recognized by Bush and demonstrated by the
best social science research, if these ex-prisoners can't
find work, or a home, or community support, they are
much more likely to commit a crime and return to prison.
Certainly a successful ~try program should benefit
public safety as well as prisoners and their families. By
expanding job training and placement assistance as well as
transitional housing and support for counseling services,
ex-prisoners would reap huge benefits.
While this initiative is' commendable, we must
also focus on many other hurdles such as employment and
other legal restrictions and prohibitions on a wide range of
civil and political rights that keep ex-offenders from
finding their place in society.

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The war on crime has continued to push the
envelope to the point where a large number of legal
restrictions have made successful reintegration much more
difficult for ex-prisoners. These recent restrictions include
prohibitions on occupational licensing, access to public
housing and other types of social programs aimed at the
poorest Americans. In addition, political rights abrogated
include the right to vote, serve on juries, and to hold
public office. Many states, including Florida, make a .
criminal history easily discoverable, branding an exoffender for life.
I understand the limitations may in some cases
have good logic behind them, but many of the restrictions
seem aimed more at extending punishment than servirig.
any socially useful purpose. For example,' in 1998,
Congress passed the Higher Education Act that barred exfelons from being allowed to receive Pell Grants, the
largest type of federal student loans. How can the people
of our society expect ex-prisoners to build better lives for
themselves if we· don't allow them to compete for grants
and scholarships like everyone else?
Similarly, many restrictions on the types of jobs
that can be held defY logic. What purpose does it serve to
prohibit an ex-offender from becoming a barber,
contractor or social worker? Other restrictions relate to
participation in public life. While we expect ex-offenders
to abide by the law, most states prevent those with felony
convictions, or who are on probation or parole, from voting.
Ironically, most all of our ex-offenders ate
citizens, and the Supreme Court has repeatedly ruled that
no one can be stripped of citizenship because of a criminal
offense. Yet we deny millions of ex-offenders one of the
most basic rights of citizenship, the right to vote.
As I pondered Bush's startling initiative his
concluding remarks continued to echo in my mind.
"America is the land of second chance, and when the gates
of the prison open, the path ahead should lead to a better
life... But unless my mind is indeed playing tricks on me,
I am sure that when the path is blocked by laws that make
it much more difficult for offenders to find their way to a
better life, we prevent them from capitalizing on this
second chance. •

Yet Another Injustice:
Does It Ever End?
When the issue of chronic pain intersects with this
nation's draconian drug laws, common sense and
compassion often take a holiday. Consider the case of
Richard Paey, a 45-year~ld father of three who sits in a
wheelchair, debilitated by multiple sclerosis and chronic
pain from botched back surgery, and who now faces a 25year mandatory minimum sentence for having forged
prescriptions to treat his pain.
Paey's case 'is just one example of the skewed
priorities that result from the nation's. drug war:

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Mandatory minimums tie the hands of judges to offer
leniency; and the looming threat of prosecution dissuades
doctors from aggressively treating pain.
Paey and his wife moved to Florida from New
Jersey in 1994. Earlier, a car accident and disastrous back
surgery left him in debilitating pain, putting him on
disability. Paey claimed he couldn't find a local doctor to'
treat him and so his New Jersey physician sent him
, undated but signed prescriptions for Percocet, Lortab, and
Valium.
,
In January 1997, investigators from the Drug
Enforcement Administration met with Paey's New Jersey
doctor about the illegal prescriptions. When that source
dried up, the government says Paey filled out old
prescriptions he had photocopied. Despite months-long
surveillance of Paey's activities, there was never any
evidence that he resold the 1,200 painkillers he bought
between January and March. It was all apparently for his
personal use.
Still, in 1997 he was charged with drug
trafficking, among other drug-related crimes.
To the credit of Pinellas-Pasco State Attorney
Bernie McCabe, Paey was offered a generous plea deal of
house-arrest and probation, but he stubbornly refused it.
Later plea offers for a five-year prison sentence were also
rejected. Paey didn't feel that medicating his pain should
have been a crime.
And he has a point. While altering a prescription
is certainly a criminal act, the under-treatment of pain has
been a long-running health care problem in this country,
now exacerbated by the increased recreational use of
.prescription medications such as OxyContin. As the DEA
and other law enforcement agencies have stepped up their
scrutiny of doctors, many have been frightened away from
offering their patients aggressive pain treatment.
The result has been making drug traffickers out of
patients who doctor-shop and engage in other unlawful
practices to get sufficient quantities of painkillers. This is
an abuse of our criminal justice resources. Paey is not a
man who belongs in prison. What he and other pain
patients need is a health care system that will respond to
their affliction. (Paey now has a morphine pUmp in his
back to dull the pain, which provides him with more
narcotics than he was getting from the Percocet that is
98.5 percent TylenoL)
But it looks like prison is very much on the
horizon.
After two trials were set aside due to
irregularities, Paey was convicted by a New Port Richey
jury in March in a third trial. He was found' guilty of 15
counts of drug trafficking, obtaining a controlled
substance by fraud and possession of controlled
substances.
He' faces multiple 25-year mandatory
minimum sentences, since Florida's rigid drug laws treat
everyone with a certain amount of medicine like a drug
dealer. Sentencing was scheduled for April 16, 2004.

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

Plenty of blame can be spread around for this
travesty, including Paey himself for not accepting the
initial plea deal, but the drug laws are the main problem.
Mandatory minimum sentencing laws result in
breathtaking' injustices and remain in place because
lawmakers refuse to act rationally where drug issues are
involved. With the law stripping Elorida's judges of
discretion, Paey's only hope is another generous plea
offer. Otherwise, this man of failing health will probably
spend the rest of his years behind bars.
[Source:' St. Pete Times, 4/5/04] •

Supreme Court to Decide The
Retroactivity of Ring v. Arizona
Before the doSe of the Supreme Court's term in
October, the justices will contemplate ordering new
sentences for more than 100 convicted prisoners who are
on death row.
Capital punishment cases often are the most
dramatic at the nation's high court, but the mood was
.restrained as the justices heard arguments in the most farreaching death penalty issue this term. At least four states
could be forced to settle for prison sentences for the
inmates or spend millions of dollars for new sentencing
hearings.'
The court ruled two years ago that the
constitutional right to a trial by jury means that jurors
should weigh factors that determine whether a particular
crime merits death or life in prison. Now the court will
decide whether to apply that ruling retroactively.
Justice Stephen Breyer worried about "the
spectacle of the man going to his death having been
sentenced in violation ofthat principle."
The Supreme Court's decision, expected by the
end of June, could affect the cases of more than 85
Arizona death row inmates, including the case under
review above. Other states that will likely be affected
include Idaho, Montana, Nebraska, Alabama, Delaware, ,
Indiana, Nevada, and Florida.
John Todd, an assistant Arizona attorney genera~
said the sentencing <;hallenge required by the court two
years ago 'was not significant enough to warrant reopening
old cases. Bush administration lawyer James Feldman
warned that a favorable prisoner ruling could put in doubt
convictions in non-capital cases handled by judges, a
scenario that seemed to worry several ofthe justiceS:
[Source: St. Pete Times, 4/19/04] •

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- - - - - - - - - - - , . - - - FLORIDA PRISON LEGAL

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

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LOREN D. RHOTON
Attorney At Law

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DIRECT APPEALS
STATE POST CONVICTION
SENTENCE CORRECTIONS·
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FEDERAL PETITIONS:
FOR WRIT~
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(it NEW TRIALS
~!) -INSTITUTIONAL TRANSFERS

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be biring of a lawyer is an important decision that sbould not be based 8olelyonadvertisements.
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- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

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

POST CONVICTION CORNER

by Loren Rhoton, Esq.

\.

,
Each and every person accused of a crime is ,entitled to certain constitutional rights. One
such right is the trial by jury. See Sixth Amendment ofthe United States Constitution; and,
Article 1, §22, Florida Constitution. Inherent in said right is the right to plead not guilty and the
right to make the State prove ~e charges. A criminal defendant can never be forced to plead
guilty to the charges against him. And, although an atto'rney has the right to make tactical
decisions regarding trial strategy, the determination to plead guilty or not guilty in a criminal
matter is a matter which is left completely to the defendant. Nixon v. SingletaIy, 758 So.2d 618
(Fla.2000). In the absence ofthe client's consent, a trial attorney should never admit his client's
guilt to the crimes charged or any lesser included offenses. ' Unfortunately. though, that is often
what occurs during closing arguments. Quite often trial counsel will concede guilt to a lesser
included offense in order to avoid having his client found guilty ofthe primary charge. While
such a course of action mayor may not be a wise choice, an attorney should never do so without
the consent of his client.
The Due Process Clause of the United States Constitution does not permit an attorney to
admits facts at trial that amount to a guilty plea without thedient's consent Bmokhart v. Janis,
384 U.S. 1 (1966). The constitutional right of a' criminal defendant to plead not guilty entails the
obligation ofhis attorney to structure the trial of the case around his client's plea. Wiley v.
Sowders, 647 F.2d 642 (61h Cir., 1981). Where defense counsel admits guilfwithout his client's
consent, and thereby fails to subject the prosecution's case to meaningful adversarlal testing,
such a defendant is denied of his right to effective assistance of counsel and prejudice to said
defendant is presumed. Nixon v. SingletaIy, 758 So.2d 618 (Fla. 2000). In such a situation the
conviction should be set aside and a new trial should be granted.
In Nixon v. Singletary. 758 So.2d 618 (Fla. 2000), th~ defendant, Joe Nixon,was
convicted of first degree murder, kidnaping, robbery, and arson: At his trial, Nixon's attorney. ,
made remarks during opening and closing statements which admitted Nixon's guilt on the
charges against him. ·Id. After being convicted as charged, Nixon filed a 3.850 motion alleging
that his attorney effectively entered a guilty plea without Nixon's consent. Id. at 621. The trial
court summarily denied Nixon's 3.850.
In Nixon, the Florida ~upreme Court acknowledged that the standard typically uS,ed to
determine an ineffectiveness of counsel claim is,the ,two pronged test enunciated in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, in order to establish an ineffective
assistance of counsel claim, a defendant must demonstrate both: (1) deficient performance by
counsel; and, (2) prejudice to the defense. Nixon argued, though, that the proper test for his
counsel's conduct was the standard set out in United States v. Cronic, 466 U.S. 648 (1984). In
Cronic the United States Supreme Court created an exception to the Strickland standard for
ineffectiveness of counsel and acknowledged that certain circumstances are so .egregiously
prejudicial that ineffective assistance of counsel will be presumed. One such circumstance under
Cronic would be if trial counsel. entirely fails to subject the prosecution's case to meaningful
adversarial testing; In such a situation there h~ been a denial of Sixth Amendment Rights which

f

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

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

makes the adversary process itself presumptively unreliable. Nixon at 622.
The Nixon Court held that the determinative issue as to which test, Strickland or Cronic,
should be used is whether Nixon gave his consent to his .
attorney
to concede guilt
,
. during his trial.
Nixon at 622. The Nixon Court remancJed his cause for an evidentiary hearing, determined that
Cronic was the proper standard in Nixon's case, and held that:
'"[b]ecause counsel's comments were the functional equivalent of a
guilty plea, we conclude that Nixon's claim must prevail at the
evidentiary hearing below if the testimony establishes that there was
not an affirmative, explicit acceptance by Nixon of counsel's strategy.
Silent acquiescence is not enough." Id. at 625
Thus, in a situation where an attorney has conceded the guilt of his client at trial, Without
. the client's consent, the conviction should be vacated. Such an issue should be raised in a timely.
Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief. Said motion should
present argument, based upon Nixon, that trial counsel conceded the accused's guilt; without the
consent of the accused. If it can be proven that this has happened, prejudice will be presumed
and the Judgment and Sentence should be overturned.

Loren Rhoton is· a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate PracticeSection. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area ofthe law, both at the State and Federal Level. He has assisted
hundreds ofincarcerated persons with their cases and has numerous
written appel/ate lJpinions.

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- - - - - - - - - - - - - - - - - FLORIDA PRISON lEGA~PCrspect1ves

---------------

accordance with the appropriate Florida Rules of
Appellate Procedure that govern discretionary jurisdiction,
rather than later being procedurally barred by the federal
courts for failure to exhaust all available state remedies.

- CRIMINAL LAW peA vs. Exhaustion 'of State
Remedies
by Dana Meranda
Prisoners in Florida, having dealt with the state's
appeal courts, will likely have encountered the commonly.
issued "Per Curiam Affirmed" (PCA) decision.
The question most often brought up by one
seeking federal habeas corpus. review pursuant to 28
U.S.C.§ 2254 is, "I was PCAed; do I have to file
something to the Florida Supreme Court in order to satisfy
the requirements set forth in 0 'Sullivan v. Boerckel, 526
U.S. 838, 845, 119 S.Ct. 1728, 1732-33 (1999), regarding
exhaustion of available state court remedies"?
The answer may be'two-fold in nature.
First, in Florida the state Supreme Court lacks
jurisdiction to review a PCA denial of an appeal, where no
opinion was given. Jenkins v. State, 385 So.2d 1356 (Fla.
1980); Article V, § 3(b)(3), Fla. Constitution. In Addition,
a party may not invoke the Florida Supreme court's
extraordinary writ jurisdiction to revi~w a PCA affirmance
or denial. Stallworth v. Moore, 827 So.2d 974 (Fla.
2002); Grate v. State, 750·So.2d 625 (Fla. 1999).
Second, a.· PCA decision that merely cites a
controlling precedent (case cited with no written opinion)
does not expressly conflict with another appellate court's
decision, even if a conflict could be demonstrated from the
cited precedent. That kind of decision sometimes referred
to as a "citation PCA," is unreviewable even if the cited
precedent was decided contemporaneously with the
decision sought to be reviewed.
There are two exceptions. The first is that a
citation PCA is reviewable if the case cited as precedent
has been reversed. Jollie v. State, 405 So.2d 418 (Fla.
1981); Lamesi v. Ferry Pass United Methodist Church,
826 So.2d 955 (Fla. 2002). The second is that a citation
PCA is reviewable if the case cited as precedent is
pending review.· Walker v. State, 682 So.2d 555 (Fla.
1996).
•
In either of those situations, the Supreme Court
has discretionary jurisdiction to accept review of the per
curiam decision controlled by the cited authority.
Based upon this application of law, a bare PCA
-decision, without any cited case law or opinion, ends the
state appeal process. It is presumed that avenues to the
Florida Supreme Court are jurisdictionally foreclosed in
this situation because further review is not a part of
Florida's established appellate review process.
On the other hand, if the case meets ·one of the
two exceptions of a "citation PCA," and mindful of
conservative federal court rulings following the enactment
of the AEDPA in 1996, out of an abundance of caution it
would be wise to make efforts to invoke the jurisdiction of
the Florida Supreme Court in a timely fashion and in

• "Pending review" means that the court must have
accepted the case cited as precedent in the citation PCA
order for review. Harrison v. Hyster, 5/5 So.2d 1279
(Fla. 1987).
[Editor Note: Dana Meranda is a Florida prisoner-bp] -

From the Associate Editor•••
Recent/y, as I made my journey to my
institutional job assignment, 1 was approached by a fellow
prisoner who wanted me to know that my sarcastic writing
style has made him chuckle. more than once. Even my
wife has made such an observation. Now I'm not sure
how I've earned that label nor am I sure if it's truly a
"good thing". I became a member of this organization
because I share in the ideology of its founders, but I also
recognize the important need to share valuable
information with the Florida prison population.
Unfortunately our funding and resources does not afford
us the ability to get the infonnation out as quickly as I
would like to see it delivered, but under the circumstances
we do the best that we possibly can. Now back to that
sarcastic side of me.
Occasionally I run across articles that spark
interest and provide helpful insights into my own ideas,
viewpoints or philosophy. So, from time to time I will
incorporate those insights to publish my own little diatribe
about our plagued criminal justice system. And just how
has our system reached this dreadful condition? Law and
order is experiencing its rapid collapse, not only because
of criminals but also because of prosecutors, medical
examiners, and police.
Those declining crime rates you have been
hearing about are probably nothing but public-relations
propaganda as evidenced a recent article in the Atlanta
Journal-Constitution (Feb. 20, 2004) where it reported that
the city's crime repOrts were suppressed to protect the
city's image for tourism. Doesn't that mean some official
or officials committed fraud on the community?
One of the main reasons crime is exploding is the
over-criminalization of behavior. Almost daily you can
fjnd laws that criminalized behavior that really shouldn't
be criminalized. Most often, criminal legislation is a
knee-jerk reaction to some offense committed by sOme
individual and a lawmaker somewhere begins drafting a
legislative bill. For example, a few months ago a horrible
crime was· committed in Sarasota where a young girl WjlS
abducted and murdered. Before the autopsy was complete
lawmakers were vigorously drafting the Carlie Brucia bill

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

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

that will, among other things, seek electronic monitoring
of probationers. pre-trial detainee releases and whoever
else is deemed appropriate for monitoring.
In cas.e you haven't heard, you can now be
arrested for using politically incorrect words or phrases.
Really.
But by far, some of the worst crimes are
committed by police, medical examiners, and prosecutors.
Take the case of Steven and Marlene Aisenberg. The
couple reported their 5-month-old daughter missing on
November 24, 1997. Instead of looking for the baby and
the abductor, the police in Hillsborough County decided to
frame the parents. Police eavesdropped on the couple's
conversations for two years, wrote out a transcript
allegedly based on the recordings and indicted the couple.
When federal district judge Steven D. Merryday
demanded the actual recordings and compared them with
the police transcript, he found "the disparity was
shocking."
Medberry ordered $2.7 million to the
Aisenbergs for "bad-faith prosecution" and ordered the
grand jury transcript released to the public as a way of
holding the corrupt police and prosecutors accountable.
To protect themselves, "law enforcement" appealed. The
11 th Circuit' appeals panel reduced the award to $1.3
million and overturned the district judge's order to release
the grand jury transcript. If the transcript is released "law
enforcement" cannot pretend that the wrongful
prosecution of the, parents was a mistake. The appeal
panel evidently decided that a white wash was needed to
protect the public's confidence. But when does the need
to protect the public's confidence give way to the actual
protection of individual rights? How long do we hide
behind the speculative to avoid the substantive?
I've worked with criminal cases where the
accused was charge, tried, and convicted on scant, if not
plausible, evidence. For example, one case involved
evidence of an alleged confession and the transcript of the
purported .confession was not reflective of what was
In another case Armand
actually on the audiotape.
Perrault was convicted solely on the evidence of a Pinellas
medical examiner who was later removed from her
position for allegedly providing false testimony in a
criminal trial. In yet another case, Mark Ellis, while on
probation, was arrested and charged with' being in
possession of a firearm by a convicted felon. His arrest
occurred as he drove to his home. No weapons were
found in his possession. His wife had been engaged in a
lesbian relationship and had conspired with her lover to
remove Ellis from their marital home. Ellis's probation
officer conducted an interview and subsequently filed a
written report. During the interview, Ellis's probation
officer had in his possession an audio tape recorder.
As months passed it appeared Ellis would be
vindicated since there was rio substantial evidence to
prove he was in actual or even constructive possession of
a firearm. The night before a scheduled hearing, Ellis's

probation officer cal.led the state attorney over the case at
approximately 8:45 p.m. and made a shocking relevation.
The probation office had somehow forgotten to tell
ANYONE that Ellis had made a "confession" during the
jail interview several months earlier. ,There was' no
written admission, no report, no audiotape to corroborate
this amazing piece of evidence. Ellis was later convicted
and sentenced to prison.
..
. Stories like these are not novel or unique; they
happen daily all across our nation.
Last December, the U.S. Court of Appeals for the
9th Circuit ordered the release of Thomas Lee Goldstein,
wrongfully convicted for murder 24 years ago. The only
evidence against Goldstein was a notorious jailhouse
,'snitch, appropriately named Edward F. Fink, who, on nine
occasions, testified for prosecutors against cellmates,
claiming they had confessed their crimes to him. In
exchange for his teStimony, Fink received leniency on
numerous felony convictions.
. Americans should be outraged that they live under
a criminal system in which prosecutors are able to convict
people on the sole basis of purchased .or peJjured
testimony. -Oscar Hanson •
.j

Florida Juvenile Justice
Agency, A Den of Abuse
and Corruption
by Bob Posey
Although it was only created a decade ago, the
Florida Department of Juvenile Justice (FDJJ), which is
responsible for about 9,000 juveniles around the state. has
become almost a mirror image of its big brother. the
Florida Department of Corrections. Over the past several
months the juvenile agency has been rocked from a series
of troubling events, including two juvenile deaths,
allegations of sex between guards and locked-up girls,
abuse, excessive force used against children by staff, and
falsified records and reports.
,
The FDJJ was created in October 1994, spun off
of the same former agency that split up to also create the
chronically troubled Department of Children and Families.
Florida lawmakers in that heyday of the "get tough"
climate decided a separate agency was needed to imprison
and "get tough" on juvenile offenders following several
attacks on foreign tourists by juveniles globally
embarrassed the state.
The tragedy that focused attention on the FDJJ
and peeled it open like a can of rotten tomatoes was the
death of 17-year-old Omar Paisley at the Miami-Dade
County Detention Center in June 2003. Paisley, who was
locked-up for slashing a neighbor with a soda can, died at
the center from a burst appendix. Before he died, .for three
days, stafT at the center ignored his pleas for help, until
finally one guard noticed him balled up on the floor

11-------------_

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

holding his stomach. His cell and clothes were covered in
diarrhea and urine. By. the time paramedics arrived, he
was dead.
Two nurses who allegedly failed to treat Paisley
have been charged with murder. The FOlJ's Secretary
William G. Bankhead and Deputy Secretary Frank
Alarcon are on "extended". leaves of absence, three other
top level managers have been replaced, and as of March
2004 18 other agency employees have been slJspended or
quit.
The deputy secretary of the Department of
Corrections, George Denman, has taken over as Interin
Secretary of the FDJJ. When he started in February he
found about 3,000 pages of grand jury reports, auditor's
evaluations and other documents detailing department
problems waiting for him on his desk.
Denman
acknowledged that the agency is "not doing well."
Florida's House of Representatives convened a
select committee late in 2003 to look at the FDJJ's
growing Jist of problems, Rep~ Gus Barreiro, R-Miami
Beach, who chaired the committee, commenting on the
committee's findings, said, "The callousness, the coldness,
the indifference, it kept coming across and across and
across and across."
Paisleys death was only one incident. Another
detainee, Danny Mathews, 17, was killed in a jailyard
tight with another detainee at a Pinellas County juvenile
detention center in May 2003. Guards at a West Palm
Beach juvenile prison for girls faced allegations of having
sexual relationships with teen detainees.
Last year the Inspector General's Office received
45 complaints about FDJJ employees falsifying records.
Of those, 17 were proven true, 12 unsubstantiated, and 16
inconclusive or still pending.
Now the office is
investigating whether guards at the center where Paisley
died lied about another teens supposed suicide attempts.
The FDJJ waited a month before investigating a Palm
Beach County incident where an II-year-old child's wrist
was broken by a center guard. "There are so many close
calls that were not even talking about,~ Barreiro said. "It
could go on forever. I think that's why it's so important to
do a complete overhaul of the system."
Solving the problems with the S,OOO-employee,
$624 million budget agency is going to be difficult, if not
. impossible. Denman said the real changes have to be in
the agency's culture. Unfortunately, the corrections', field,
whether it is the imprisonment of adults or chIldren,
appears to attract personnel that create and then perpetuate
a culture of incompetence and abuse.
[Source: Lakeland, The Ledger, 3/22/04] •

Perspecttves - - - . . - ; - - - - - - - - - -

Hundreds or'Abuse and Neglect
Cases
Uncovered at Detention Centers
by Randy Sherrin
According to the Orlando Sentinel, more than 600
cases of youth abuse or neglect have taken place at
Department of Juvenile Justice facilities in the past
decade, with nearly two-thirds of the cases occurring since
2000.
The 661 confirmed cases at department facilities
since 1994 were scattered across .the state, and range in
type from physical to sexual abuse, according the state
records.
.
The department has been coping with a series of
high-profile incidents in the past year, including the death
of 17-year-old Omar Paisley from a burst appendix in a
Miami-Dade County detention facility last June.
Since then, nearly two dozen agency employees
have taken extended leaves, stepped down or been pushed
out. Six children have died under the department's care
since 1998.
The Department of Children and Families, w~~ch
investigates all reports of child abuse throughout FlOrida,
attributes two deaths to abuse or neglect: the 200 I suicide
of Shawn D. Smith at a Volusia County center, and the
2000 death of Michael Wiltsie, who was crushed by a
320-pound counselor at a center near Ocala. A grand jury
attributed paisley's death to abuse or neglect.
A review of DCF records found the number of
abuse or neglect cases peaked in fiscal year 2001-02, with
119 verified incidents. Last year, that number dropped to

72.
Polk County· facilities reported the largest number
of confirmed cases, 93 in the past decade. Fifty-seven of
those took place at the Polk Youth Development Center in
Polk City, one the biggest facilities in the state, with 350
high-risk offenders.
The department oversees about 9,000 youth
offenders between ages II and 18, at nearly 200 programs
and facilities. Eighty percent of the juveniles in custody
are at long-term facilities, the majority of which are run by
private contractors.
A House Select Committee· investigating the
facilities has focused on the 25 short-term centers holding
an average of 2,000 youths daily.. However, most cases of
abuse and neglect took place at residential facilities, where
an average of 6,600 youth offenders are serving sentences
each day.
.
Chairman of the House Committee, Rep. Gus
Barreiro, R-Miami Beach: openly criticized the limited
inquire. Barreiro wants to expand the scope of the inqui'!
which requires approval from House Speaker Johnnie
Byrd.

12----------

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More recently, a report surfaced that a 16-year-old
boy was choked by guards in early April at the same
juvenile facility where Paisley died. According to late
news reports, an investigation is under way to determine
how Jerry Byron, 16, suffeted a concussion April 14,
2004, while at the Miami-Dade Regional Detention
Center.
[Source: Orlando Sentinel, 4/11/04; St. Pete Tim.es,
4/22/04] •

FDOC Kosher Meal
Program a Joke,
Critics Say
Some critics of the Florida Department of
Corrections' (FDOC) new program to provide kosher food
to Jewish prisoners say its appropriate the program took
effect on April I, otherwise known as April Fool's Day,
because the program proposed by the department is a joke.
The FDOC Kosher Meal Program, as itS called,
was implemented four days before the start of Passover,
ostensibly offering Jewish prisoners kosher food for the
first time - with some conditions.
The program is the result of a federal lawsuit filed
by state prisoner Alan Cotton, an Orthodox Jew, that was
settled by the FDOC in October 2003 with prison officials
agreeing to furnish Cotton Kosher meals to satisfY
religious requirements. (See: FPLP, Vol. 10, Iss. I,
"Florida Prisoner Receives Kosher Food.") Following the
settlement- the FDOC, concerned about other lawsuits
being filed by Jewish prisoners, began looking to develop
a program to offer a kosher meal option in the state's
prisons.
Advocates for Cotton and other Jewish prisoners,
however, claim what the FDOC has come up with falls
very short of kosher standards for other commercial and
institutional kitchens.
Under the FDOC's Kosher
program. rather than hire a rabbi to supervise kosher food
preparation, as other institutions do, the FDOC wants
Jewish prisoners to prepare their own food. The FDOC
claims it will provide kosher ingredients, a separate set of
pots and pans, and an area set aside in the regular prison
kitchen to prepare the food "
Rabbi Menachem Katz· of the Aleph Institute, a
Jewish organization that assists Jewish prisoners and their
families and that provided legal representation in Cotton's
lawsuit. commented. "The inmates are going to run the
kitchen?
That's a joke.
These inmates are not
knowledgeable of kosher law. Who's going to say what
ingredients are kosher and what ingredients are not
kosher? They're not even starting with a kosher kitchen."
Katz's comment "references the FDOC's position
that communal kosher prison kitchens should be held to
the lower standard of Jewish family kitchens, rather than

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

the higher standards of restaurants, hotels and other
institutions. Under kosher law, institutional kitchens have
to be "kosherized," a purification process that uses boiling
water and flame, and that is supervised by a reputable
rabbinic authority. Family kitchens, on the other hand, do
not require rabbinical supervision.
Lou Vargus, acting deputy secretary of the FDOC
claims the department's kosher meal program is
"analogous to a family situation. We're essentially going
to aUow any inmates who want a kosher diet to cook and
prepare their own food."
The program. open to the approximately 600
Jewish prisoners in Florida's prisons, is unacceptable to
the Aleph Institute and the Becket Fund for Religious
Liberty, a Washington D.C. group that also represented
Cotton. "What they appear to be trying to do is make this
as undesirable as possible for Jewish inmates," said Pat
Korten, who's with the Becket Fund.
The FDOC started collecting applications from
prisoner& who want to participate in the program, but
according to FPLP sources few are signing up. A
procedure directive drafted by the FDOC (p.O. 503.005)
concerning the program provides it will only be available
.at five prisons, meaning those who sign up and aren't
already at one of the five prisons will be transferred to one
of them. That, in many cases may mean being moved
further from hometowns and families.
Another problem is likely to be the FDOC's
refusal to provide any meat or fish for kosher meals.
Vargus, the FDOC deputy secretary, said in April that
meat and fish aren't excluded from the menu, they just
won't be made available for now, for cost reasons.
[Sources: Miami Herald, 4/2/04; personal interviews and
correspondence] •

-PRISONER R1GHTSStaff Assistance in the Disciplinary
Process and Disapproved Mail
Return
Policy
In this case Senior U.S. District Judge William
Stafford adopted the Feb. 17, 2004, Third Report and
Recommendation of U.S. Magistrate Judge William
Sherrill which granted the Florida Department of
Correction's ("hereinafter "Department") summary
judgment in Count I and denied same in Count II. The
case hatJ been remanded to the magistrate judge in 2003
(See: Osterback v. Crosby. 16 Fla.L.Weekly Fed. D513a)
to consider two matters: First. whether Plaintiff Mark
Osterback's status as a prisoner serving a life sentence
without parole had a bearing on the due process analysis
in Count I, and second, whether Osterback had submitted

13 - - - - - - - - - - - - - - -

f

FLORIDA PRISON LEGAL

sufficient evidence of harm to avoid summary judgment in
Count U.
In Count I, Osterback sued the Department for
declaratory and injunctive relief that its rules providing
staff assistance, in both the investigative and hearing
phases of the prison disciplinary process, were inadequate
to enable the. effective ,~lIection and presentation of
exculpatory evidence and thereby infringed upon his right
to due process of law.
In his Second Report and Recommendation (16
Fla.L.Weekly Fed. DSI3a), Magistrate Judge Sherrill
agreed with Osterback's assertions, but the Department
objected, claiming Osterback's sentence of life in. prison
without parole meant he could not earn gaintime and thus
had no liberty interest which had to be protected by due
process. Upon reconsideration of that matter upon
remand, Magistrate. Judge Sherrill, after allowing
Osterback to submit additional evidence in regard to
Count I, acquiesced. to the Department's argument, which
was based on its assertion that while it awarded gaintime
to Osterback, his sentence prevented him from actually
benefiting from it through reduction of his term of
incarceration. That was crucial to survival of Count I,
since placement in disciplinary confinement does not in
itself implicate a due process liberty interest because
simple confinement does not constitute an atypical or
significant hardship in relation to the normal incidents of
prison life, Sandin v. Conner, SIS U.S. 472 (1995), and
the only other injury suffered by. Osterback in disciplinary
proceedings had been forfeiture of accrued gaintime.
Further, benefiting from that accrued gaintime by way of a
sentence commutation was too speculative to give rise to a
liberty interest protected by due process, according to
magistrate Judge Sherrill.
Additionally, Osterback's evidence and argument
that other liberty and property interests, such as forfeiture
of privileges, confiscation of property and imposition of
restitution, were found to be unpersuasive by the court.
That was due to Osterback's inability to demonstrate
evidence that such interests had been infringed.
Although in . hIs Second Report. and
Recommendation Magistrate Judge Sherrill recognized the
shortcomings and inherent unfairness of the Department's
rules in: regard to staff assistance, upon remand, and in
light of Judge Stafford's instructions, Magistrate Judge
Sherrill was forced to recommend summary judgment in
favor' of the Department on this count based entirely upon
the sentence Osterback is serving.
In Count II, Osterback challenged the
Department's disapproved mail return policy as violative
of due process for its (ailure to allow effective review of '
any decisions to disapprove incoming mail based on
content because disapproved mail is immediately ~ed
to the serider by the Department. On remand, Osterback
was required to submit sufficient evidence of harm as a
result ofthe policy to have standing to challenge it.

Perspectives

Osterback was able to submit evidence that an
incoming letter had been had been disapproved because it
allegedly contained "inflammatory language." He also
submitted'evidence that another letter was disapproved for
allegedly being sent to him by another prisoner when, in .
fact, the alleged other "prisoner" had been released from
prison several months prior to writing the letter to
Osterback.
Neither of those disapprovals, argued Osterback,
could be effectively challenged due to the, Department's
mail return policy, which required disapproved mail to be
returned to the sender within 24 hours ofreceipt.
Ironically, it was Osterback's life sentence which
was a factor in saving this count from summary judgment.
As he sought prospective (future) injunctive relief, in the
form of a rule changing the disapproved mail return
policy, the court found he had standing to challenge the
policy as he would be forever subject to it by virtue of his
life sentence. Summary judgment as to Count II was
therefore denied by the Department. Osterback v. Crosby,
17 Fla.L.WeekJy Fed. DSI7a (N.D. Fla. 3125/04).
[Note: As part of an attempt to settle the above case now
that the Court cleared the way for Count II (the
disapproved mail return policy challenge) to go to tria~ on
May 14, 2004, the Department posted a Notice of Propose
Rule Development to amend its.mail rules to ameliorate
the due process violation inherent in the present pOlicy.
Pertinently, the proposed addition to the rules would
require that in disapprovals, (rejections) of incoming mail
to prisoners, based upon written or pictorial content, that a
photocopy would be made of the alleged offensive
material to facilitate prisoners' appeals. The .mail,
however, would still be returned to the sender as has been
the Department'S policy. Notably absent from the
proposal are any provisions to establish a procedure
providing effective and meaningful due process to
nonprisoner mail senders whose mail the Department
rejects. That "oversight" needs to be addressed by the
Department.] •

14 - - - - - - - - - - - - - - -

FLORIDA PRISON LEGAL Persp~ttves

Know Your Disciplinary Rights!
Daniel E. Manville

The DiscipliDary Self-Help litigation Manual
is the only manual ofits Iqnd.1t covers all aspects
~Authorofthe"Prisone~s
ofthe discipluuuy ~•.inclu~g a detail~
discussion ofthe draconian changes made in
Self-Help Litigation Manual"
these procedures by the United States Supreme
Com in Heck v. Humphrey.Edwards v. Balisot.
3rd Edition
and Sandin v. Connor.
The DSHLM dis~usses how prisoners. should
prepare for and conduct a disciptmaly hearing.
The Manual provides guidance for prisoners in
determining whether the disciplinarypunishment
created an"atypical and'significanthardship"
requiring fe.ieral Due Process protections at the
disciplinaIy hearing. The DSHLM discusses
what federal Due Process procedures p~son
officials were required to provide at the
. disciplinary hearing if the punishment imposed ......... ''''d';-.'.';.. ''.:,.,.,.,
an "atypical and significant hardship" on the .
prisoner. The Manual Sets forth the steps
prisoners must take to preserve a disciplinary
guilty finding for adminis1rative appeal ~d court
litigation. The DSHLM provides a state-by-state
discussion ofthe rights prisoners have in a
particular state. and discusses the procedural
aspect of litigating a disCiplinary guilty finding
in state court.
Each chapter cites to huildreds ofcases to _
support the substantive and procedural right that
are discussed in the Manual.'Based upon tliese
discussions and cases cited. the DSHLM can .
assist the prisoner in preparing pleadings for
filing a challenge to a disciplinary guilty finding.

.
Brings you:

Print Clearly:
Name:
Address:

City:

.

State:

--------

Zip:

Detach and send check or money or~er, payable to Daniel E. Manville, PC., to:
Daniel E. Manville, P.C.
P.O. Box 20321
Ferndale, MI. 48220
Phone - (248) 341-1201

Fax - (248) 341-1204

Email· DSHLM@comcast.net

15 - - - - - - - - - - - - - - -

FLORIDA PRISON LEGAL

Inmate Account Ilrocessing
Fees to be Charged
On May 31,2004, Gov. Jeb Bush signed new legislation into
law concerning the state correctional system. Included in that
legislation is a new'provision that allows the Florida Department
of Corrections (FDOC) to charge prisoners an uadministrative
processing fee" on their inmate bank accounts. The law
becomes effective July I, 2004.
The proCessing fee provision was sponsored by the House
Appropriations Committee and Rep. Frederick uFred"
Brummer, R-Apopka. and was, along with the other pro,<isions
in ~e legislation concerning the prison system, passed
unanImously by both the state House and Senate during this
year's regular legislative session.
The legislation concerning the administrative processing fee
provision, that is now law in ~Iorida, provides that paragraph (h)
is added to subsection (I) of section '944.516, Florida Statutes,
to read:
'
(IJ The Department o/Corrections may:
(h) Charge an administrative processing fee 0/ up to $6 each month 10

inmates lor banking services. Such fees, shall be deposited into the
department:r Grantr and Donations Trust Fund and shall be used to
offset the COSIS 0/ the department:S operations. If the inmate account
has a zero balance at the. end 0/ the billing cycle. a hold will be
eltablished to col/ect the processing/ee when ovailable.

Rep. Brummer said staff from the FDOC and the governor's
office had initially suggested the processing fee provision. He
defe?ded the provision, saying free citizens have to pay a
service charge on their bank accounts, so why shouldn't
prisoners be charged a monthly fee?
FDOC spokesman Sterling Ivey said the money in prisoners'
accounts with the'department, that can be used to purchase items
out of the prison canteens, comes from prisoner's families and
friends. Ivey also claimed. somewhat mendaciously, that
prisone~ also eammoney working prison jobs. Less than 3,000
of Florida's 80.000 state prisoners have jobs inside the prisons
that pay anything. There are approximately, 2.500 prisoners who
~orklfor the prison indusby program, P.R.I.D.E., who can earn
up to a maximum 'of $.55 per hour for what many critics call
Uslave-labor." The only other prisoners who can receive small
wages each month are the approximate 300-400 prison canteen
operators and prisoners who cut guards' hair or shine their
shoes. The majority of prisoners. however, are prohibited by
department rules from engaging in any activity that might
generate revenue.
When Randall Berg, an anorney with the Miami-based
Florida Justice Institute. heard about the processing fee
legislation he said uYou have got to be kidding. These people
don't have much money to begin with." Berg thinks prisoners
Will. be outraged by the processing fee and especially by the
clause that will allow a lien to be placed on their accounts even
when they haven't had any money to be uprocessed." According
to Berg, uThis is mean-spirited legislation,"
'
Potentially. the FDOC could stand to collect almost $6
million a year from prisoners on the account processing fees. but
the actual amount will be less. Many prisoners. who don't have
a paying job in prison. come from low-income families and
backgrounds and receive linle or no money from the outside.
Many family members struggle to send an incarcerated loved

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

one even a few dollars a month so they can purchase hygiene
items, shoes, sweatshirts or underwear from the prison
ca?teens-:-all items the FDOC has cut back on furnishing to
pnsoners an recent years. Prisoners can also purchase snacks and
a small radio in the prison canteens, if they have money, but
only at high prices now that the FDOC has contracted out the
canteen operations to the privately-owned Keefe Commissary
Network within the past year for a cut ofthe profits.
"Its just one thing after another with the [FDOC] gouging the
families," said Irene Smalley, 73. who has a son incarcerated in
Florida. "I'm a taxpayer like everyone else in Florida. Out taxes
are suppose to be used to support' the prison system. But
prisoners' families are being taxed extra," Smalley said. uWhen
I gO', to visit my son I have to pay high costs for vending
machine food so the Department [of Corrections] can make a
profit off me. If I accept my son's collect phone calls I'm
charged rates higher than anypne else in the counby so the
. Department can get a profit. If my son gets sick and goes to the
clinic, he's charged $4 a visit out of the money I send him to by
necessities. Now they want to take another $6 a month of my
money to fund Department operations, if 1send l1im $20 or $30.
It's like the Department is trying to split up families by
burdening them financially," said Smalley.
When a phone call was made to the FDOC's central office
about how the processing fee provision was going to be
implemented, the caller was told that all prisoners who have any
money deposited into their inmate account during the month
will be charged the full $6. processing fee. If a prisoner only
receives a few dollars and spends it before the $6 charge is
deducted for that month, then a lien will be placed on the
prisoner's account for the $6 to be collected next time he or she
receives any money. However. if a prisoner does not receive any
money during the month, then no lien will be placed on the
account, according to the FDOC staff person who answered the
family member's questions by phone.
It is yet to be seen how the prison population reacts to this
new scheme to make money off of them and their families to
support .the system that's keeping them imprisoned. As noted in
the processing fee provision, the fees collected will go into the
,FDOC's Grants and Donations Trust Fund. which is the
department's slush fund that can be spent on anything the
department wants, without authorization from the Legislature.
Many prisoners believe the processing fee provision was
suggested by the. FDOC to make up for the loss the department
suffered last year when the Legislature abolished the Inmate
Welfare Trust Fund (lWTF) and turned all the money over to
the state's General Revenue Fund. The department had been
notorious for stealing from the IWTF, which was only suppose
to fund inmate benefit or family programs. to fund unauthorized
projects.
It does not appear that the FDOC. in suggesting it be allowed
to charge and keep the processing fee, informed Rep. Brummer
or other legislators that eve~ since the inmate account system
was set up a few decades ago that the money is deposited into an
interest-eaming bank account, but the interest, amounting to a
couple of million dollars a year., is not paid to prisone~the
department always claimed the interest was kept as an
"administrative processing fee.
.
[Sources: Lala? City Reporter. 6/1/04: HB 187S; correspondence and
personal interviews].

16 - - - - - - - - - - - - - - -

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

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

The following are summaries ofrecent state andfederal cases that may be useful to or have a significant impact on Florida prisoners.
Readers should always read the full opinion as published in the Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal
(Fla. L. Weekly F,edera/); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter Jd (F.Jd); or the
Federal Supplement 2d (F.Supp. , 2d), since these summaries are for general 'information 9nly

FLORIDA SUPREME COURT
Grosvenor v. State, 29 Fla.L.Weekly.
Sl25 (Fla. 3125104)
The Supreme Court of
Florida accepted jurisdiction in this
certified conflict case to resolve an
issue where a defendant asserted a
claim of ineffective assistance of trial
counsel for failing to advise of a
possible defense. The Court had to
in
asserting
decide
whether,
prejudice, defendants must allege
that the defense would have
succeeded at trial.
In reaching their decision,
the Court analyzed the standards
established by the U.S. Supreme
Court in Strickland v. Washington
. and Hil/ v. Lockhart.
Under
Strickland, a defendant alleging
This case arose .out of
charges that Bodden was driving
under the influence in violation of
section 316.193(1), Fla. Stat (2002).
During a traffic stop the police
officer noticed that Bodden had red
eyes and slurred speech, swayed
while he stood, and smelled of
alcohol. The officer read Bodden the
implied . consent warning, and
Bodden agreed to a breath test and a
urine test .The breath test results
indicated that Bodden's bloodalcohol level was between .060 and
.065 percent. The urine test results
indicated the presence of a controlled
substance.
Bodden filed two motions in
limine requesting that the trial court
suppress any reference to his urine
test results because no regulatory
criteria for testing had been
promulgated in accordance with
of
Chapter 120, F.S· A claim

ineffective assistance of counsel
must
prove
both
deficient
of counsel
and
performance
prejudice to the defendant. .See:
Strickland v. Washington, 466 U.S.
668 (1984).
In Hili, the Court
established a two-pronged test for
determining claims of ineffective
assistance of counsel relating to
guilty pleas. The first prong is the
same as the deficient performance
prong of Strickland. Regarding the
second prong, the Supreme Court in
Hill held that a defendant must
demonstrate
"a .
reasonable
probability that, but for counsel's
errors, the defendant would not have
pleaded guilty and would have
insisted on going to trial." See: Hill
v. Lockhart, 474 U.S. 52 (1985).
In sum, the Florida Supreme
Court follOWed the holding in Hil/.
Administrative
Procedure
Act,
codified in Florida statutes. Bodden
argued that section 316.1932, part of
the implied consent law pertaining to
the operation of motor vehicles,
requires that any scientific test
conducted pursuant to the implied
consent law, including a urine test,
be an "approved" test (meaning that
the testing procedures be approved
through
formal
rulemaking
promulgation in accordance with the
Administrative Procedure Act). .
The sole issue under review
by the Supreme. Court was whether
the term "approved" in section
316.1932(1)(a)(l) refers to urine test
as well as breath and blood tests.
The Court conducted an extensive
analysis of the relevant statutes and
concluded that the implied consent
law for operators of motor vehicles
does not require that urine testing
methods be approved in accordance

and ruled a defendant who has
pleaded guiltY who later claims that
defense counsel was ineffective for
failing to advise of an available
defense established StrlcJdand's
prejudice. prong by demonstrating a
reasonable probability that, but for
counsel's errors, the defendant would
not have pleaded guilty and would
have insisted on going to trial
This ruling reversed the Fifth
DCA decision that held defendants
making such claims as above must
show that they had a "viable"
defense.
This ruling marks a
significant change in post conviction

proceedings.

State v. Bodden, 29 Fla.L.Weekly
S153 (Fla. 4/15104)
with the Administrative Procedure
Aet(APA).

DISTRICT
APPEAL

COURT

OF

Burgess v. Crosby, 29 FIa.L. Weekly
0718 (Ill DCA 3123/04)
While . Lance Burgess was
serving sentences imposed by
Orange and Lake County Circuit
Courts, he filed a petition for writ of
mandamus in the Leon County
Circuit Court (Leon Court). In the
complaint for manClamus, Burgess
challenged the revocation of his
conditional release by the Florida
the
Parole
Commission .and
subsequent forfeiture of gain time by
of
.the
Florida
Department
Corrections (DOC).
He further
argued
that
DOC's
sentence

17 - - - - - - - -

_

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

calculation resulted in· his serving
more time in prison than was proper.
The Leon CoUrt determined
that it did not have jurisdiction over
the complaint, ruling that the
challenge to the computation of a
sentence was a collateral criminal
proceeding to the judgment and
sentence that resulted in the
incarceration, citing Schmidt v.
Crusoe, 28 Fla.L.Weekly S367 (Fla.
May 1, 2003), motion for rehearing
filed, No. SCOO-2512 (Fla. May 21,
2003).
The Leon Court further
determined Burgess was serving a
sentence that it ha4 not imposed;
therefore, the Leon Court did not
have jurisdiction over the collateral
criminal proceeding stemming from
a conviction and sentence entered by
another circuit court. The. petition
for writ of mandamus was dismissed
without prejudice for Burgess to file
in the sentencing court for the
appropriate relief.
On appellate review, the
First District Court of Appeal (DCA)
granted review as an appeal rather
than certiorari, citing Green v.
Moore, 777 So.2d 425· (Fla. lit DCA
2000) (holding that an appeal, rather
than certiorari, is the proper method
to review the circuit court's denial of
an inmate's petition for writ of
mandamus where the proceeding is
concluded on grounds other than
merits).
After reviewing the Schmidt
case the DCA found· that the
Supreme Court intended to limit the
application of its holding to the
question
Schmidt's
rehearing
brought before it: whether the prison
indigency
statute applied
to
challenges -concerning the forfeiture
of gain time. The DCA ruled that the
Leon Court. erred in concluding
otherwise.
In Schmidt, the Supreme
Court held, "that an inmate's petition
for writ of mandamus challenging a
loss of gain time is a collateral
criminal proceeding and not a civil
lawsuit as contemplated by the
Prisoner
Indigency
Statute."

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

Furthermore, it held, "a gain time
Spradley v. State, 29 Fla.L.Weekly
challenge is [similar] to a collateral . 0623 (Fla. 2d DCA 3112104)
challenge to a sentence in a criminal
. In this case the Second DCA
proceeding because the end result is . addressed an issue where a defendant
the same, the inmate's time in prison
who entered a guilty plea to
is directly affected."
probation violation claimed in a Rule
The DCA explained that to
3.850 motion that his trial counsel
hold that any administrative action -misadvised him that he would
affecting a sentence as a collateral
receive credit for all previously
criminal proceeding, and that an
earned gain time when the DOC
inmate must seek relief in the
applied credit for time served, and
sentencing court, extends the holding
that he would not have pleaded guilty
in Schmidt- to areas not explicitly
to the violation of probation had he
addressed and raises a whole series
known that the DOC had the
of issues that were not discussed by
authority to forfeit the gain time he
the Supreme Court in Schmidt.
previously earned.
Because
After a review of the venue
Spradley's motion was untimely the
issue, noting that there would be no
trial court denied relief.
guidance to which of the two
Spradley filed a motion for
sentencing courts would be the
rehearing alleging that the claim is
proper court to seek relief, and a
based on newly discovered evidence
showing of examples regarding
because he did not learn of the
different venue issues, the DCA
DOC's authority until he exhausted
concluded that the sentencing court
his administrative grievances, which
is not the appropriate venue for the
did not occur until the time expired
for seeking post conviction relie[
action a tissue. The challenged
revocation of conditional release and
The DCA
held
that
the subsequent forfeiture of gain
Spradley's motion for rehearing was
time,> both have to do with an
not under oath, and therefore the trial
inmate's behavior on release and'the
court was not required .to consider
penalty imposed by forfeiture of gain
the motion for rehearing, citing
time after revocation.
Melton v. Siate, 720 So.2d 577 (Fla.
lit DCA 1998).
The DCA however, because
of its, and those that dissented,
The DCA did grant Spradley
concerns, brought a certified
60 days to resubmit a facially
question to the Florida Supreme
sufficient Rule 3.850 motion based
Court: "Does the holding in Schmidt
on the newly discovered evidence
apply to all challenges which affect
and that such motion shall not be
the length of a sentence, including
deemed successive.
the award or forfeiture ofgain time,
such that any challenge must be
[Editor's Note:
As this case
brought in the sentencing court?" demonstrates, it should be the policy
a.s.
of every prisoner litigant to submit
all adversarial pleading under the
[Note: FPLP alerted readers to the
penalty of perjury oath found under
2d Jud. Cir. Ct. claiming a lack of
Florida Statutes 92.525 -oh]
jurisdiction in cases involving gain
time pursuant to the Schmidt decision
in Vol. 9, Iss. 5, in the notice
Dillard v. State, 29 Fla.L.Weekly
"Judicial Alert."
Hopefully, the
D801 (Fla. 4th DCA 3/31104)
S.Ct. will clarifY· exactly where the
Florida
prisoner
Kevin
jurisdiction lies in such cases
Dillard appealed his upward
quickly. - bp]
departure sentence imposed by the
trial court on re-sentencing following
remand where the DCA had reversed

i8 - - - - - - - - - - - - - - -

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

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

Dillard's habitual felony offender' under consideration was whether
sentence.
extensions of the 60-day time limit
At re-sentencing, the state
are authorized for motions of this
asked for an upward departure
nature.
sentence based on multiple grounds.
Florida Rule of Criminal
Among the ,grounds urged as a basis
Procedure 3.800(b)(2), adopted in
2000, provides a procedure by which
for departure was that the "offense
sentencing errors may be corrected
created a substantial risk of death or
great bodily harm to many persons."
by the trial court during the initial
Section 921.00163(3Xi), Fla. Stat.
stage of the appeal without the need,
(1997). The trial court imposed an . for the appellate court to relinquish
jurisdiction. The rule provides that,
upward departure sentence.
The
court found that Dillard created a
within 60 days of the filing of a Rule
3.800(bX2) motion, "the trial court
substantial risk of death or great
bodily harm to many persons when
shall file an order ruling on the
he ran across high-speed lanes of
motion." Otherwise, the motion is
traffic on 1-95 to bury the drugs he
"considered denied."
carried in an effort to "continue
The Fifth DCA held that the
In
trafficking in those drugs.'.'
time period is selt:'executing and
departing from the presumptive
there is no authority of either the trial
range, the judge made it clear that he
court or the appellate court to extend
the time period. .
was not relying upon Dillard's fleeing
conduct (since he had been acquitted
ofthat charge), but rather his conduct
[Editor's Note: This decision has no
in attempting to conceal the drugs in
effect on extensions of time as they
the ground.
relate to Florida Rule of Criminal
The DCA reversed based on
Procedure 3.800(c). Under that rule.
the holding in Barr v. Slale, 674
the 60-day limit is, not selfSo.2d 628 (Fla. 1996); where the
effectuating and extensions of time
do not delay the appellate process.
Supreme Court held that a departure
sentence cannot be based on conduct
See: Abreu v. Slale, 660 So.2d 703
that ,could have supported a separate
(Fla. 1995).-oh] charge and conviction.

Malcolm v. Slale, 29 Fla.L.Weekly
D807 (Fla. 41h DCA 3/31/04)
The Fourth DCA has held it
is erroneous to sentence a defendant
as a prison releasee reoffender and
aIso under I0/201Life statute where
the
mandatory
terms
under
10120/Life statute were not greater
than the PRRA sentences.
On
remand the trial court was instructed
to vacate the I0/20/Life sentences.
Davis v. Slale, 29 Fla.L.Weekly
D672 (Fla. 5d1 DCA 3/18/04)
The Appellant in this, case
sC?ught an enlargement of time for the
trial court' to consider and rule on a
Motion to Correct Sentence made
pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2). The issue

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Fund • links - Lesal Assistance Sources • Upcoming Events - Malntalnlna Familv
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much, much. more.
'

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_

Perspectives - - - - - - - - - - - - - was forced when The Miami Herald started its own
Children of Prisoners,
investigation and identified situations in which suspects
Children of Promise
used to close cases couldn't have committed the alleged
crimes.
Earlier this year Jeb Bush launched a trial
In one recent instance found by the Hera/d, a man
program that will pair the children of 60 inmates with
blamed for 16 burglaries is a mentally ill drug addict who
mentors. If the children can maintain. a perfo~nce
was in jail in Miami at the time at least one of the crimes
contr(lct that requires them to do well in school and stay
he confessed to occurred. The Broward Sheriff's Office
out of trouble, the program will pay for their higher
cleared the 16 burglaries with Marc Anderson's
education. .The program is mainly supported by the
confessions, and closed the cases, though he was never
private sector by such companies as Pride Enterprises,
actually charged with the crimes or match his fingerprints
Aramark, Wexford Medicine in Corrections, and Bridges
with and physical evidence. His mother said Anderson
of America.
.
would be a good candidate for police to pin crimes on;
The Department of Corrections ·chose'the initial
he's a frightened, mentally ill drug addict.
60 children from parents who were participating in faithSheriff Jenne's announcement about widening his
based programs at· their prisons. Faith-based programs
investigation came as the Herald was pursuing related
encourage inmates to tum their lives around through
records about a fifth case in which as alleged suspect
religion.
couldn't have committed, the crimes to which he
Florida has 60,000 children with at least one
confessed.
parent in prison, according to the Federal Department of .
Two Pompano Beach detectives "exceptionally
Health and Human Services.
cleared" almost 60 cases, citing Ronald Williams as the
The program will begin with 42 children whose
culprit. "Exceptional clearance" is a law enforcement
parents are at the Broward Correctional Institution, and
term meaning the person who committed the crime has
the rest will be children whose parents are at Tomok&.
been found but not ,charged because of "some reason
The program will later expand to Everglades Correctional
beyond law enforcement coritro!."
However, when
Institution in Miami-Dade County and the Lowell
writing their reports. the detectives failed to note that more
Correctional Institution in Marion County and include the
't1uln a dozen of the crimes Williams confessed to occurred
children of prisoners who aren't in faith-based programs.
while he was in jail, report sources.
The bulk of the expense will go toward the $4,500
Jenne's internal investigation office stated
cost of each prepaid scholarship. In addition to the
questioning detectives in April, especially those who took
mentors, students will get a case manager to ensure
suspectS on tours of· crime scenes in hopes of clearing
students get the support to succeed academically. •
multiple cases, The office is also talking to deputies who
rode along on such tours and allegedly witnessed
confessions.
The internal investigation office claims it is
Broward County Sheriff's
trying to determine if detectives used coercion or promises
Office Falsified Crime
of leniency to induce confessions.
The Broward State Attorney's Office's public
Statistics :
corruption department said it is pursuing its own
investigation ofthe BSO crime clearance statistics.
Pompano Beach,FL - Broward County Sheriff Ken
Jenne said that he is expanding an internal. investigation
[Source: FPLP Wire Services] 'into allegations that his department has been using
knowingly false and dubious confessions from criminal
defendants ~o close cases and bolster the county's crime
- CRIMINAL LAW statistics.
The Rise and Fall of Habeas Corpus
In April 2004 Sheriff Jenne announced that he
would review two years of county crime reports and
in Florida Post Conviction
closely analyze each instance where multiple cases were
Proceedings
closed on a single suspect without charges being filed.
by Oscar Hanson
The reports are from 2002 and 2003, when the BSO
boasted of having one of the highest crime clearance rates
Over the past few years the Supreme Court of
in the U.S.
Florida
has
attempted to close their original extraordinary
The investigation began with police officers in
writs
jurisdiction
window regarding prisoner petitions
other Broward departments saying BSO regularly
seeking
post
conviction
review of criminal judgments.
manipulates crime statistics by obtaining dubious
Usually
the
petitions
are
filed
as a last effort following the
confessions to clear cases to make the image-sensitive
exhaustion
of
existing
procedural
vehicles (such as Rule
department look better to the public. The investigation
3.850 and Rule 9.141) in hope the high court would grant

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

----------------20--------------__

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

some relief. Frustrated that prisoners continue to flood the
high court with habeas corpus petitions, the Court has now
closed the window for good.
In the case of Baker v. State, 29 Fla.L.Weekly
SI05 (Fla. 3/11/04), the Court consolidated three cases
that were representative of an increasingly large
percentage or original writ petitions for habeas corpus
filed with the supreme court. The Court provided a
comprehensive overview of the history of post conviction
remedies and established a new procedure for dealing with
future filings in th~ir court.
History of Rule 3.850
The history of Rule 3.850 clearly indicates that it
was intended to be the sole procedural mechanism for
raising collateral post conviction challenges to th~ legality
of criminal judgments that were traditionally cognizable in
petitions for writs of habeas corpus. In sum, this rule
essentially transferred consideration of these traditional
habeas claims from the court having territorial jurisdiction
over the prison where the prisoner is detained to the
jurisdiction of the sentencing court.
In 1963, the state of Florida faced an impending
post conviction crisis that began with the United States
Supreme Court decision in Gideon v. Wainwright, 372
U.S. 335 (1963), which held that the Sixth Amendment
right to the assistance of counsel in criminal cases applied
to state criminal prosecutions by virtue of the Fourteenth
Amendment to the United States Constitution because it
was one of those fundamental rights essential to a fair trial
and, therefore, to due process of law. •
During 1963 the Florida Supreme Court attempted
to provide a mechanism for meeting the demands for post
conviction relief following the Gideon decision by
promulgating the first rule of criminal procedure, Rule I,
the predecessor of the current Rule 3.850. See: in re
Criminal Procedure Rule No. I, lSI So.2d 634 (Fla.
1963).
According to the Justices, the Court became
irnrilediately concerned over the procedural facilities
available to state prisoners who might have belatedly
, acquired rights which were not recognized at the time of
their conviction. When Gideon was announced, the only
practical procedures available in Florida for a post
'conviction assault upon a judgment were by habeas
corpus, or writ of error coram nobis.
On September 15, 1962, the Florida Judicial
Council instituted a study of post conviction remedies and
the advisability of 'establishing some expeditious method
of disposing of post conviction claims of deprivation of
organic rights which occurred at trial. At its meeting on
October 27, 1962, the council specifically recommended
the adoption of a rule or the enactment of a statue which
would facilitate and expedite the handling of post
conviction claims.

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

The Division of Corrections reported on June 30,
1962, that there was approximately 8,000 state prisoners
in custody. Of this group 4,065 ,entered pleas of guilty
without the benefit of counsel. Four hundred seventyseven (477) entered pleas of not guilty but were convicted
without benefit of counsel. The announcement of the
Gideon decision made it obvious that a substantial number
of prisoners would seek release or new trials because of
'this recently recognized constitutional privilege.
In 1962 the Florida Supreme Court received 304
petitions for habeas corpus. Practically all of them were
from indigent prisoners in the state prison system.
As recognized in the decision of Roy v.
Wainwright, lSI So.2d 825 (Fla. 1963), Rule 1 was
promulgated to establish an effective procedure in the
courts best equipped to adjudicate the rights of those
originally tried in those courts. Rule I was further
intended to provide a complete and efficacious post
conviction remedy to correct convictions on any grounds
that subject them to collateral attack.
In State v. Bolyea, 520 So.2d 562 (Fla. 1988), the
SUpreJl\e Court explained that the post conviction rule is a
procedural vehicle for the collateral, remedy otherwise
available by writ of habeas corpus, and was designed to
simplify the' process of collateral review, plus prescribe
both a fact-finding function in the lower courts and a
unifonn method of appellate review.
While the Florida Constitution provides a basic
guarantee that the writ of habeas corpus shall be grantable
of right, freely and without cost, the Florida Supreme
Court held that such a constitutional right is subject to
certain reasonable limitation consistent with the full and
fair exercise of that right. See: Haag v. State, 591 So.2d
614,616 (Fla. 1992).
According to the Court, Rule I, the historical
predecessor to Rule 3.850, was created to strike a balance
necessary to protect both the right to habeas corpus relief
in Florida and the institutional needs-of the state courts
system.
As originally promulgated, the rule specifically
preserved the right to obtain habeas corpus relief in certain
limited circumstances. Yet the rule provided recognized
limitations on that right. Specifically, the rule provided
that an application for a writ of habeas corpus on behalf of
a prisoner who is authorized to apply for relief by motion
pursuant to the post conviction rule, shall not be
'entertained if it appears that the applicant has failed to
apply for relief, by motion, to the court that sentenced
him, or that such court has denied him relief, unless it also
appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention. See: Rule
3.850 (h).
This language has survived virtually unchanged
throughout the entire history of the rule. The last clause of
Rule 3.850(h) suggests that a petition for writ of habeas
corpus would be permissible to test the legality of a

--..;.--------------- 21---------------

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

prisoner's criminal judgment when, for whatever reason,
he or she can no longer obtain collateral post conviction
relief by motion. However, the courts of this state have
interpreted this provision to mean that habeas corpus may
not be used as a substitute for an appropriate motion
seeking post conviction relief under Rule 3.850. See: e.g.
Ha"is v. State, 789 So.2d 1114 (Fla. pI DCA 2001). Nor
will the courts permit habeas corpus to be used as a means
to circumvent the limitations provide in the rule for
seeking collateral post conviction relief in the sentencing
court, See: Breedlove v. Singletary, 595 So.2d 8 (Fla.
1992).
Instead, the last clause of what is now subdivision
(h) of the rule was intended only to allow for habeas
corpus relief in limited circumstances where a petitioner is
not seeking to collaterally attack a final criminaljudgment
of conviction and sentence, or where the original
sentencing court would not have jurisdiction to grant the
collateral post conviction relief requested even if the
requirements of the rule had been timely met. See: e.g.
Williams v. State. 777 So.2d 947, 950 (Fla. 2000).
Thus, as clearly established by Florida courts,
habeas corpus relief is not authorized to obtain co'lateral
post conviction relief because most claims can be raised
by motion under Rule 3.850. The limitations placed on
the right to habeas corpus relief in such circumstances has
been subject to much litigation, all to no avail.
When Rule 1 was first promulgated by the
Supreme Court in 1963, it specifically provided that all
motions filed pursuant to the rule "may be made at any
time." In 1983, the law on the scope of relief available
under the rule began to cluinge. In November 1984 the
, Court amended Rule 3.850 (formerly Rule 1) to include
language codifying the law as set forth in the majority
opinion in McCrae v. State, 437 So.2d 1388 (Fla. 1983),
which discussed foreclosure of matters that could have
been presented on appeal, second or successive motions,
and suggestions to establish time limitations.
.
First, the prohibition against relief under the rule
based on claims that could have been raised on 'appeal, as
stated in McCrae, was explicitly stated in the rule as
follows: "This rule does not authorize relief ,based upon
grounds which could have been raised at trial and, if
properly preserved, on direct appeal of the judgment and
sentence." [d. At 908. This language now appears at the
end of subdivision (c) of the rule.
Second, the then existing prohibition against the
filing of second or successive motions for post conviction
relief under the rule was codified to not only set forth in
explicit detail the state of the law, as explained in McCrae,
regarding when the prohibition would be applicable. but
also to expand the scope of that prohibition to include not
only claims that were raised but also those that could have
been raised in a previous motion denied on the merits.
, Finally, the two-year- limitations period for filing
motions for collateral post conviction relief under the rule

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

was adopted in the same 1984 amendments. This new
time limitation on seeking relief pursuant to the rule
became effective on January 1., 1985.
Prisoners
adjudicated guilty prior to January 1, 1985, were
specifically givenuntil January 1, 1987, to file motions for
post conviction in accordance with the new amended rule.
This time limitation provision, with the additional
exception .fOf. those circumstances where "the defendant
retained counsel to timely filed a 3.850 motion and
counsel, through neglect, failed to file the motion," now
appearS in subdivision (b) ofthe rule.
Habeas Corpus and Rule 3.850 ReHer
As the foregoing discussion makes clear, the
Supreme Court has repeatedly revisited the parameters of
the post conviction remedy provided by Rule 3.850 in an
effort to reasonably balance the needs of the state courts
system against the necessary right to habeas corpus relief
in Florida.
.
Recently the Supreme Court took the opportunity
to remind those convicted of noncapital crimes (this group
includes those defendants convicted of crimes that may be
classified as capital in the statutes, but who were not
actually sentenced to death), that in this state Rule 3.850 is
the mechanism through which they must file collateral
post conviction challenges to their convictions and
sentences. See: Baker v. State, 29 Fla.L.Weekly SI05
(Fla. 3111/04).
.
The Court explained that it has experienced a
steady increase in the number of habeas corpus petitions
filed by prisoners 'seeking collateral post conviction relief
from noncapital criminal convictions and sentences. As a
result, the Court made explicit what previously had only
, been implicit. The Court held that the common law
remedy of habeas corpus is not available in Florida to
<>btain the kind of collateral post conviction relief
available by motion in the sentencing court pursuant to
Rule 3.850. The Court recognized that by simply denying
such petitions as procedurally barred or without merit
instead of transferring them, they have inadvertently
encouraged prisoners to file their collateral post
conviction cha'lenges directly in the Supreme Court,
rather than the appropriate trial court, "because our denials
of such petitions have given prisoners false hope that the
high court may one day grant them some relief."
Thus, the Supreme Court will henceforth dismiss .
petitions in which the Court can clearly discern either that
the claims raised are procedurally barred or that the
petition does not meet the requirements of the rule. Baker
v. State, 29 Fla.L.Weekly SI05 (Fla. 3/11/04)••

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

_

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

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

Florida Prison Legal Perspectives
Reso~rce List
June 2004

FLORIDA
Government
Governor (Jeb Bush)
PL-05, The Capitol
Tallahassee, FL 32399-000 I
- 8501 488-4441
www.myflorida.com
Attorney General (Charlie Crist)
PL-OI, The Capitol
'
Tallahassee, FL 32399-1050
850/487-1963
'
www.oag.state.fl.us
Department ofCorrections
, Secretary James V. Crosby
2601 Blair Stone Rd.
Tallahassee, FL 32399-2500
850/488-7480
www.dc.state.fl.us
Department of Health '
2585 Mercha~ts Row Blvd.
Tallahassee, FL 32399
850/245-4321
Department of Law Enforcement
(POLE)
PO Box 1489
.Tallahassee, FL 32302-1489
8501 410-7000
www.fdle.state.fl.us
Department of State
PL-02, The Capitol
Tallahassee, FL 32399·0250
8501 245-6500
'
www.dos.state.fl.us
Website contains all state agencies'
rules (Florida Administrative Code) and
"Florida
Administrative
.Weekly"
detailing current agency rulemaking ,
illrO.

'

Florida Corrections Commission
2601 Blair Stone Rd. ,
Tallahassee,FL 32399-2500
www.fcc.state.fl.us

Office of Executive Clemency
(Parole Commission)
2601 Blair Stone Rd.
,Bldg. C. Room 229
Tallahassee, FL 32399-2450
, 8501 488-2952
'
Office of Vital Statistics
PO Box 210
, Jacksonville, FL 32231-0042
904/i59-6900
Maintains state birth/death certiflcates,
etc.

Parole Commission
2601 Blair Stone Rd., Bldg. C .
Tallahassee, FL 32399-2450
8501 922·0000
www.fpc.state.fl.us
Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399·0850
850/413·6055
www.floridapsc.com
Regulates i!J-state utilities; including
telephone services.

Florida House of Representatives
402 S. Monroe Street
Tallahassee: FL 32399-1300
850/488-1157 (Clerk)
www.leg.state.fl.us
Florida Senate
404 S. Monroe Street
Tallahassee, FL 32399-1100
850/487-5270 (Secretary)
Website contains contact info' for all
state legislators: a copy of all current
Florida 'laws (statutes): and bills that
have been introduced in the Legislature
Jnd their history, including in many
instances "staff analyses" valuable for
understanding legislative intent.

FLORIDA
Legal Aid 1 Advocacy Organizations
Florida Prisoners' 'Legal Aid Org., Inc.
PO Box 660·387

---------------

Chuluota, FL 32766
407/568-0200
FaX: Same
www.fplao.org
fj!lp@aol.com
Services:
Membership-based
organization. ' Provides infonnation /
advocacy to state, prisoners and their
families and advocates.
Conducts
grassroots organizing of prisoners'
families and handles impact litigation
concerning civil rights / tidministrative
law affecting prisoners, their families
and children. Publishes bi-monthly news
journal,
"Florida Prison Legal
Perspectives. ..

Florida Justice Institute
2870 First Union Financial Ctr.
200 S; Biscayne Blvd.
Miami, FL 33131-2310
. 305/.358-2081
Fax: 305/358-0910
Services: .Hanales civil rights litigation
concerning jail/prison conditions.
Makes referrals for damage / civil-Tights
cases.
Prison advocacy, lobbying,
develops strategies for alternatives to
incarceration.

Florida Institutional Legal Ser., Inc.
III0-C NW 81b Street
Gainesville, FL 3260 I
352/ 955-2260
Fax: 352/ 955-2189
www.arn.orgt-fils
Services,: Legal assistance to Florida
Post conviciion
state prisoners.
ass/stance to three prisons only:' FSP,
vel and FCI. Impact litigation:
conditions of confinement, civil rights,
medical, etc. Some individual services.

FLORIDA
Attorneys
Loren Rhoton, Attorney
Rhoton & Hayman, P.A. .
412 E. MadisonST;, Ste. 1111
Tampa. FL 33602
813/226-3138

23--..,...-~------_:__------

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL
E~majJ:

rhoton 167@aoJ.com

Specializes in Florida post conviction,
direct appeals, sentence corrections, new
trials, federal habeas corpus, 3.850,
3.800.
David W. Collins, Attorney
POBox 541
Monticello, FL 32345
8S0/997-8111

Specializes in all area ofpost conviction
relief, including, appeals. 3.850, 3.800
state-lederal habeas corpus, parole
hearings, clemency, etc.
'The hiring of an attorney is an
important decision that should not be
based solely upon advertisements.
Before you decide, ask the attorney to
send you free written itiformatlon about
their qualifications.
FLORIDA
BooksIPublicatlonslJournals

"Florida Prisoner's Litigation Manual".

Provides legal itiformQ/ion on prison
discipline, mandamus and. appellate
review. Softcover, 330 pgs. Price
$24.95 plus $3.95 S & H. Order from:
FPLP, Attn: LItigation Manual, PO Box
660-387 Chuluota. FL 32766
Continuing Legal Education Publications
(CLE)

CLE publications are produced by ,the
Florida Bar In collaboration with
LexisNexis. These are excellent books
covering Florida-speciflc legal topics,
such as Administrative Law. Appellate
Practice. Family Law. Legal Research
Legal Writing. Trial Practice, Civil Law.
Rules a/Court, etc. To obtain more info
and prices for available publications in
the CLf series contact: LexisNexis.
Attn:
Order Fulfillment. 1275
Broadway, Albany, NY 12204 (Ph# 8001
562-1197). Ask for Fla. Bar eLE
Publication catalog.
FLORIDA
Other Groups I Organizations

Perspectives - - - - - - - - - - - - - - _

Citizens United for Alternatives to the
OeathPenaJty
177 N.US Hwy I, Ste. B-297
Tequesta, FL 334~9

Services: Grassroots organizing of
people opposed to death penalty.
Aleph Institute
9540 Collins Ave.
Surfside, FL 33154
305/ 864-5553
www.aleph-institute.org
admin@aleph-institute.org

Services: Provides Jewish religious
education. counseling. emergency
assistance and referrals to Jewish
prisoners and theirfamilies.
Time for Freedom
Pastor Bernie Decastro
PO Box 819
Ocala, FL 34470
3521351-1280
Email: tff@lgate.net

Services: Provides' parent education:
self-help support,' ilffo,' referrals,'
mentoring: religious ministry: advocacy
for male prisoners. ex-prisoners and
theirfamilies.
Kairos Outside
140 N. Orange Ave., #180
Winter Park, FL 32789
407/629-4948
www.kiarosprisonministrv.org
kairosjo@aoJ.com

Services: Provides mentorilfg, religious
ministry, family reunification support
and weekend retreats for female adults
with incarcerated loved ones. '
Prison Connection, Inc.
1859 Polo Lake Dr. East'
Wellington, FL 33414
888/ 218-8464
www.theprisonconnection.com
seeacon@aoJ.com

Services: Provides bus transportation
and meals to prison visitors. Also
provides giftsfor prisoners' children.
Faith-based Support Group
1937 Lakeville Road
Apopka, FL 32703
Email: pre«.I@netzero.com
(Little house behind the church)

Services: Monthly meetings to provide
ilffo and supportfor grievingfami/ies of
prisoners.
The Buddha Inside
PO Box 3910
Brandon, FL 33509-3910

Services:
Provides teaching and
mentoring services to prisoners on
Buddhism.
NATIONAL
Newsletters/Journals
California Prison Focus
2940 16th Street, Ste. B5
San Francisco, CA 94 t 03
www.prisons.org
Quarterly news journal reports on
issues/conditions in CA SHU prisons.
Some national info. Prisoners $4 per yr.,
all others 520. Sample copy $1.
Coalition for Prisoners Rights Newsletter
PO Box 1911
Santa Fe, NM 87504-1911
Prison-related newsletter published
monthly. Free to prisoners and their
families, all others $12 per yr.
Donatlonslstamps appreciated to help
with publishing/mailing.
FAMMOram
1612 K. St., NW, Ste. 1400 '
VVashington,DC 20006
www.famm.org

Quarterly news journal focused on fight
against mandatory minimum prison
sentences.
Published by Families
Against Mandatory Minimums - a
National organization. Prisoners $10
individuals $25, professionals $50.
Membership-based organization.
Fortune News .
53 W. 23n1 St., 8l1a Floor
New York, NY 10010
www.fortunesocietv.org

Quarterly magazine of the FortUne
society carrying wide variety ofarticles
and ilffo about prisons, prisoners,
criminaljustice, rehabilitation, etc. Free
to prisoners.

24-------

_

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

Hepatitis C Awareness News
PO Box, 41803
Eugene, OR 97404

Bi-monthly newslelter published by
hepatitis C Prison Coalition with news
and info about Hep C and HIY/HCY.
Free upon request, but stamp donations
needed and welcomed
Justice Denied Magazine
POBox 881
Coquille, OR 97423

Quarter/Ji magazine dedicated to
exposing wrongful conviction cases.
Prisoners S/8 per 6 issues, $30 for
othen
Justice Matters
PO Box 40085
Portland, OR 97240.0085

Quarterly newslelter published by the
Western Prison Project. Prisoners $7
per year. S/5 all others. Good resource
info.
Justice Xpress
POBox 1226
Occidental, CA 95465

Quarterly news journal.
/ncludes
political. prison/prisoner info and
. articles. Write for subscription info.
Prison Legal News
2400 NW 8011I SL
Seattle, WA 98117
Web site: www.prisonlegalnews.org

Monthly Jour.nal carries summaries and
analysis ofrecent prisoner rights cases,
self-help litigation articles. priso~.
related n~s. Prisoners $/8 per year.
$25 othen. Sample copy $/.
.
Nolo News
50 Parker SL
Berkeley, CA 94710

Quarter/y self-help newsleller covers
(non-prison) civilllllgation issues. 1Woyear subscription S/2.
NATIONAL
Book Projects
The following sources provide free
books to prisoners. However, these

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

projects rely on volunteers and donations
to operate. Whenever possible, prisoners
should help th~ projects when
requesting free books by sending a few
stamps for postage.
Requests for
speci(ic books can rarely be honored,
instead, request books by type, e.g.
mystery, legal, historical, novel, etc.
Requests are usually limited to 2 or 3
books at a time.
Books for Prisoners
clo Groundwork Books
0323 Student Ctr.
La Jolla, CA 92037
Books Through Bars
4722 Baltimore Ave.
Philadelphia, PA 19143-3503

(Directory can·be printed offwebsitefor
free.)
"National Prisoner Resource List"
available free from:
Prison Book
110 Arlington St.
Bostoll, MA 02116
"Resource and Organizing Guide"
available from:
Prison Activist Resource Center
PO Box 339
Berkeley, CA 94701
(Donation/stamps requested to help·
offset printing/mailing costs.)
"Directory of Programs Serving Families
of Adult Offenders"
available free from:
National Institute ofCorrections
Information Center
1860 Industrial Circle, Ste. A
Longmont. CO 80501

Books Through Bars
clo Experienced Books
2150 S. Highland Dr.
.
Salt Lake City. UT 84106-2807
Prison Book Program
clo Lucy Parsons Ctr. &: Bookstore
110 Arlington St.
Boston, MA 02116

NATIONAL
GroupsiO rganlzations
The Sentencing Project
918 F. St., NW, Ste. 501
Washington, DC 20004
2021 628-0871

Prison Book Program
clo The Readers Comer
31 Montford Ave.
Ashevil.le, NC 28801-2529
(Southeastern US only)

Services: . Provides technical assistance
. to develop alternative sentencing
programs and conducts rese~h on
criminal Justice issues.
No direct
services to prisoners.

Prison Book Project
PO Box 396
Amherst, MA 01004-0396
Women's Prison Book Project
clo Arise Bookstore
2441 Lyndale Ave., S.
.
Minneapolis, MN55405-3335

Stop Prisoner Rape
6303 Wilshire Blvd., #204-A ,
Los Angeles, CA 90048·
www.spr.org
"

NATIONAL
Resource Lists
..ACLU Prisoner Assistance Directory"
(Florida prisoners see Yolume 4 of
"Prisoners and the Law" In major
Institutions' law library - contains above
directory.)
"Resource Directory for Prisoners"
available for 4 stampsfrom:
NaJjor Prison Dharma Service
PO Box 628
Mt. Shasta, CA 96067
www.naljor.prisondhannaservice.org

SPR works to end sexual violence
against prisoners. Counseling resource
guides for prisoners and released rape
victims and advocates are available for:
AL. AZ, CA. CO. FL. GA. IL, LA. OK.
OR. MI. MS. NC. NY, rx, WI or
nationwide. Specify slate with request.
Amnesty International, USA
322 Eighth Ave.
New York, NY 10001
www.amnesty,org
AI is an independent. international
organization that works to protect
human rights.

25 - - - - - - - -

_

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

CURE . (Citizens
United
Rehabilitation ofErrants)
National Capitol Station
PO Box 3210
Washington, DC 20013
202/.789·2126
www,curenational,org

for

Services: Organizes prisoners and their
families to work for criminal justice
'reform. Many state chapters.
National Death Row Assistance
Network ofCURE
Claudia Whitman
6 Tolman Rd.
Peaks Island, ME 04108
www,ndran.org
NDRAN is a new CURE project formed
to help death row prisoners across U.S.
gain access to legal. financial and
community support and to assist
prisoners' efforts to act as selfadvocates.
NATIONAL
Services

INTERNET RESOURCES

Information on the Internet is available
to prisoners with family or friends on the
outside with online access who will. print
and mail material in. The amount ofinfo
on the 'Net' is tremendous. Info on.
almost any subject can be found' online.
The following lists some websites that
may be useful for info.

www.lawcrawler.com
Searches government and other sites for
law.

www.leg.state.fl.us
Florida Legislature's website. Provides
directory of state legislators; complete
Florida slatutes (laws); Senate and
House bills. bill histories and analyses.

www.nolo.com
Provides some general legal info and
sells books on wide variety of iegai
topics useful to the public.
www.findlaw.com
Good site for searching out federal and
state law.

Services: Professional. typing services
by mail.
Computer. typewriter.
transcription. blaclr/color printing and
photocopying. Free price list upon
request. Special ratesfor prisoners.

www.Drisonaetiyists,org
Provides wide variety of prison-related
info. Includes large "Link" section to
many other related legal and nonlegal
websites.

Tightwad Magazines
PO Box 1941·FPLP
Buford, GA 305 I5

www.martindale.com
Provides info on lawyers nationwide,
including contact info. area ofpractice.
how long. etc.

Death Row Support Project
PO Box 600, Dept. P
Liberty Mills, IN 46946
Services: Penpal services for death row
prisoners.

www:flsd.uscourts.gov
U.S. District Court. Southern District of
Florida website.

Legal/Legislative

Let My Fingers Do Your Typing
PO Box 4178·FPLP
Winter Park, FL 32793-4178 .

'0

www.flmd.uscourts.gov
U.S. District Court, Middle District of
Florida website.

www.myflorida.com
Links to state agency and government
offices' websites.

www.washlaw,edu
Legal search enginefor locating primary
legal sources at the federal and state
levels.

Services.' Offers up 90% discount on
magazine subscriptions. offers some
subscriptionsfor stamps. Free catalog if.
you send self-addressed. stamped
envelope.

_

www.flcourts.org
Provides directory and links to Florida
courts' websites.
www.FCLA.edu
Florida State. University law library
website.
www.law,miami,edullibrary
University ofMiami law library website;
www.1aw.ufl,edu
University' of Florida law library
website.
www.stetson.eduldepartmentsl1ibrarvOa
~

Stetson University law library website,
www.legal.firn,edu
Posts the "Government in the Sunshine
Manual" (Public meetings and public
records manual),
www.f1abar,org/newtlabar/memberservic
eslCLE
..
Sells continuing Legal Education series
oflegal books concerning Fla. law.

www.thomas.loc,gov
Source for federal legislative material.
www.uscourts.gov
Links and information about U.S.
Supreme and otherfederal courts.
www.call.uscourts.gov
Eleventh Circuit Court of Appeal
website.

FPLP intends to update this list on a
continuing basis as a service to readers.
Please let us know if you are aware of
other resources that prisoners, their
families or advocates maybe interested
in at the below address or by email:

www.flnd.uscourts.gov
U.S. District Court. Northern District of
Florida website.

26 - - - - - -

FPLP
Attn: Resource List
PO Box 660·387
Chuluota, FL 32766
fplp@aol.com

..:8:...-

_

- - - - - - - - - - - - - - - flORIDA PRISON LEGAL Perspectives - - - - - - - - - - - - - - -

AL - State prison officials began
reviewing prison drug testing during
Apr•. '04 after questions arose about
the accuracy of the drug test used to
test prisoners. According to drug
testing experts, .cold medicines,
prescription drugs and other
substances can cause false positives
in urine tests.
AL - A news report release Apr. 20,
'04, stated that a judge dismissed a
lawsuit by two male prisoners .at
Fountain prison who sought the right
to get married in prison. Daruis
Chambers and Jonathan Jones
alleged that Alabama state law
banning same-sex marriages violates
the constitutional rights to due
process and free speech.
The
dismissal was without prejudice to
Chambers and Jones pursuing their
claims once released from prison.
AR - In Mar. '04. after prisoner
Shawanna Nelson grieved the
Arkansas DOC over a policy
requiring that female prisoners be
shackled to their bed before and after
giving birth, prison officials said they
would not change the policy. By
Apr. 16, '04, bad publicity forced the
ADOC to reverse its position and
adopt a new policy dictating that
pregnant prisoners will no longer be
shackled while in labor. Instead,
women considered flight risk will be
held with soft restraints and those not
considered a risk will be supervised
by a guard.
AZ - In a report March 18, 2004 it
was said that fonner Perry County
sheriff's deputy Lloyd King pleaded
guilty in federal court to filing a false
report. King claimed that a' drug
suspect shot him. He was fired after
the sheriff detennined the claim was
false and that King shot himself to
gain the sympathy of a woman. King
faces up to five years in prison and a
$250,000 fine.

AZ - One of the two inmates who
held a pair of 8\lards hostage in a
state prison tower admitted raping a
kitchen worker and a female guard,
said a report March 18, 2004. Steven
Coy pleaded guilty to 14 charges,
including
escape,
kidnapping,
assault,
and
sexual
assault.
Prosecutors said they made no deals
with Co)' in exchange for the pleas.
Coy will be sentenced April 30. Coy
and inmate. Ricky Wassenaar took
two guards hostage Jan. 18 at the AZ
State Prison Complex - Lewis in
Buckeye.
The male' guard was
released Jan. 24 and the female guard
was set free Feb. 1 - the same day
the inmates surrendered. Wassenaar
claims that the standoff began· after a
failed escape attempt, Coy denys this
is the case. In early May '04, Coy,
as part of a deal he made to free the
hostages, was tranSferred to the
Maine prison system in an interstate
compact exchange.
AZ - A report filed 'March 12,2004,

stated Maricopa County has the first
juvenile chain gang in the USA.
Nine teenagers were put to work
pulling weeds on the first detail.
They're serving sentences of less
than one year for crimes ranging
from drug possession to armed
robbery. Maricopa County began
chain gangs for males in 1995 and
for females in 1996.

co -

During early Apr: '04, ~o
candidates for district attorney in
Grand Junction, Colorado, claimed
someone bro~e into their homes and
planted porn on their computers.
One, Ann Duckett, said she didn't
want the sheriff to investigate
because he was endorsing the
incumbent prosecutor.

CT - Eight female Connecticut
prisoners who contributed to an
award-winning book, "Couldn't
Keep It To Myself: Testimonies

From Our Imprisoned Sisters," will
pay a portion of their royalties to
offset the cost of their incarceration.
The state had went to court. trying to
seize the book's royalties under a CT
law that allows recovery of
incarceration costs, in reaction to
critk:ism from some victim rights
advocates who said the women
should not gain fame or money from
their writings. One prisoner, Barbara
Parsons Lane, won a $25,000 prize
for her writings that appeared in the
book. Each woman agreed to pay the
state $500 to settle. the state's
.lawsuit.
[AP, 4120/04]

CT - On Mar. 12, 2004, a teenager
was arrested after jumping into the
back of an unmarked police car and
tried to sell· the officers crack
cocaine, according to police. The
teen, after offering to sell the cra~k
told the officers, "You guys look like
cops." The officers were wearing
jackets with the word "POLICE" on
them.
FL - Calvin Lee Banks, 49, a former
prison guard at Polk Corr. lost.
resigned from the Dept. of
Corrections Nov. 7, '03 - several
months after he pleaded no contest to
two counts of unlawful sale of a
game animal, three coUnts of selling
or transporting freshwater game fish,
along with charges of unlawful sale
of game animal without a license.
He ·was sentenced in July '03 to six
months probation but allowed to stay
on as a prison guard for several more
months while prison officials decided
what to do about him, according to
FDOC spokesman Sterling Ivey.
According to police investigators,
Banks was the ringleader of a large,
commercial poaching operation in
several Central Florida counties,
illegally selling thousands of rabbits,

27-----

_

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

speckled' perch and gopher turtles an endangered species - as food,
Investigators estimated Banks was
making more than $60,000 a year
poaching wildlife. Two other prison
guards were arrested in Sept. '03 and
allowed to', remain on the job.
Michael A. Vargus, 48, a guard at
Bartow Work Release Center, was
arrested Sept. 25, '03, on two
charges of battery on a firefighter
and aggravated assault on a law
enforcement officer. He was accused
of attacking two firefighters and two
Polk Co. Sheriff's deputies at his
. Winter Haven home. John Owen
Stanton, a prison guard trainee at
Avon Park Corr. Inst.,· was also
arrested in Sept. '03, charged with
impersonating a law enforcement
officer, a felony.
Stanton was
accused of using exterior strobe
lights to pull. over a woman he
claimed was speeding and threatened
to arrest a man in another incident.
Prison guards are not law
enforcement officers, and are not
allowed to make arrests or stop
drivers for traffic violations.
FL - In 1960 Eddie Mayes was
serving a 35-year sentence in
Georgia for robbery and burglary
when he escaped. Earlier this year
Mayes, using the alias Eddie Miller,
submitted an application to visit his
son at Avon Park Corr. Inst. When
FDOC prison officials ran a routine
criminal background check on
"Miller's" visiting application using
the
CyberLINXX
system,
information came back showing he
was really Mayes and an escaped GA
prisoner. Mayes was arrested at his
home in Fort Pierce, FL, on Feb. 27,
'04 - almost 44 years after his
escape.
FL - Two men, one being released
from prison and one picking him up,
were arrested at Sumter Corr. Inst.
Forestry Camp on Mar. 17, 2004,
ltehind an investigation conducted by
the Sumter Co. Sheriff's Dept. and
Sumter Corr. Inst. that discovered
drugs were going to be left on the

I'erspectives - - - - - - - - - - - - - _

prison grounds for pickup by another
prisoner.
The prisoner being
- released from prison, Mackie V.
Shelton, 26, was charged with
conspiracy to deliver marijuana' into
a state prison. His bond was set at
His buddy, who had
$25,000.
intended to give Shelton a ride home,
Terrill Q. Holey, 28, was charged
with introduction of contraband into
a state prison and possession of less
than 20 gms. of marijuana. His bond
was set at $10,500. Apparently
Shelton never understood the old
adage: Loose Lips Sink Ships.
FL - At least 26 prisoners on death
row at Union Corr. Inst. became sick
with food poisoning in Nov. 2003.
The prisoners claim they were fed '
rotten food. Food service at the
prison is provided by the private
company Aramark. The last issue of
FPLP reported that several dozen
UCI prisoners got food, poisoning
from a Christmas diMer servedat the
prison by Aramark in December
2003.
FL - In the first week of March,
2004, a prison guard, Daniel Dwayne
Dickerson, of Jacksonville was
charged with causing a crash that
killed· a woman in Ocala. He was
arrested after witnesses reported
seeing him driving erratically and
striking a pickup, a Florida Highway
Patrol report states. Dickerson was
charged with driving in a reckless
manner resulting in a death.
FL - March 18, 2004, jail officials in
Miami accidentally released an
inmate awaiting trial for attempted
murder of a police officer. They
confused him with another inmate
with the same last name. Neither,
Victor Rodriguez or Rolando
Rodriguez, were due to get out to
begin with. Victor Rodriguez was
recaptured and taken back into
custody.
FL - Orange County deputies' said
they had to subdue Alfredo Diaz, 29,
with two jolts with a Taser stun gun

28 - - -

because he had taken off his clothes
and was running through the streets
shouting. Diaz died after being
shocked with the device on Apr. 19,
'04. An autopsy was scheduled to
determine the cause of his death.
FL - On April 26, '04, Gov. Jeb
Bush directed his inspector general
to
investigate
whether
the
Correctional
Privitization
Commission,
which
oversees
Florida's five private prisons,
violated the law last year when they
hired
former
Department
of
Correction's secretary Michael W.
Moore (three months after he
resigned as secretary) to act as a
contract consultant. Moore, who
started MWM and Associates
consulting company after resigning
from the DOC, was paid $64,000 to
oversee the commission's efforts to
rebid two of the state's five private
prison cOntracts. State law prohibits
the commission from hiring ex-DOC
employees for two years after they
leave the department. . The
commission claims it didn't hire
Moore, they hired his company.
Constant
disputes
with
the
commission had the Legislature
looking at abolishing it again this
year.
FL - On May 6, '04, state election
officials ordered local election
supervisors to purge voter rolls of the
names of convicted felons, which
could result in almost 40,000 names
being removed.
Documentation
from the 2000 election showed that
election officials used out-of-state
lists which improperly denied the
right to vote to ex-felons that had
their voting rights restored in the
states where their crimes had been
committed.
FL - On May 13, '04, Orlando
television station ChaMel 9, WFTV,
on the' 6 pm news, ran an
investigative segment comparing the'
amount of money spent by the
Department of Corrections for law
books for prison law libraries to the

_

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

amount spent on books for public
schools. According to the report, the
FDOC spends $1.Sm in taxpayer
money each year to buy new law
books for the state's prison law
libraries, or approximately $20 per
prisoner compared to only $6 per
child that is spent on average
statewide to· purchase new school
books. The report also noted that
within the past 5 years, prisoners,
using the law books, have filed
approximately 5,000 lawsuits against
the FDOC, costing taxpayerS an
average of SS,I 00 for each suit filed
for a total cost of over S2S.S million.
[Editor's Note: The WFTV report
did not mention where it obtain the
numbers concerning the prison law
books or number of lawsuits filed,
the latter of which is definitely
exaggerated.
WFTV, instead of
presenting a biased position as
balanced reporting, could have found
a much more interesting story if it
had investigated where the money
actually goes that is budgeted by the
FDOC for prison general and law
libraries. - bp]
ID - During Apr. '04 the Idaho
prison population reached an all-time
high of 6,085 prisoners. Prison
Director Tom Beauclair said that
hundreds of prisoners may soon be
relocated to prisons in other states.
Until then, the lOoe is adding tents
and cots to existing prisons and
workcamps to handle overcrowding.
ID - During early May '04, people in
a Coeur d'Alene neighborhood
caused an uproar over four paroled
prisoners living in the neighborhood.
A city attorney said the four men can
reside in the rented home. State
officials said the dispute underscores
the challenge of ex-prisoners in
finding a place to live. All four of
the men had been in prison for nonviolent offenses.
.
LA - Forty-eight unsolved crimes,
mostly rapes, have been tentatively
linked by a statewide DNA database

--------------

to people already in jail, said a report
March 17, 2004. The matches are
the product of three private labs
analyzing evidence that hadn't been
processed in about 500 cases, said
Capt. Brian Wynne of the State
Police Crime Lab. Another 500
cases are scheduled
to be tested.
.
.
LA - Two female prison guards,
Tammie Davis and Chico Cain, who
worked at Angola State Penitentiary
were arrested Apr. 27,' '04, as part of
an investigation into improper
conduct with prisoners. Both guards
were accused of corresponding with
prisoners by mail and sending them
items using false names.
LA - On May 13, '04, a judge ruled
that a fourth trial for Wilbert Rideau,
a prison journalist who was
convicted of killing a bank teller in
1961 and who gained renown as the
editor of The Angolite, will begin
Oct. 25. The judge ruled Rideau can
get a fair trial with a jury from
outside Calcasieu Parish.
Two
former trials of Rideau had been
overturned because of the racial
makeup of the juries. .The third was
thrown out because there were no
blacks on the grand jury that indicted
him.

MA - During Apr. '04, a
commission appointed by Gov. Mitt
Romney completed a report with
recommendations they say would
create a nearly foolproof death
penalty system for the state.
Romney, a republican, has vowed to
reinstate the death penalty in
Massachusetts. He says his staff will
draft legislation to do that based on
the report.
The commission
suggested changing the standard of
guilt in the sentencing phase of death
penalty cases from "beyond a
reasonable doubt" to "no doubt,"
while giving capital defendants better
lawyers and the opportunity to face
two juries, one for trial and one for
sentencing. It also recommended
increased use of DNA science to
corroborate guilt. The plan faces an

uncertain future in the state's
Democrat-eontrolled
Legislature.
Massachusetts abolished capital
punishment in 1984 and has not held
an execution since 1947.
NC - Death row prisoner Jonathan
Hoffman was grantee;t a riew trial in
Apr. '04 after prosecutors who
persuaded a jury to convict him
admitted they withheld .critical
evidence at his trial. Hoffman is the
sixth person sentenced to· death in
North Carolina to get a new trial in
recent years after it was discovered
prosecutors withheld evidence...
NC - The number of death-penalty
convictions in the state has dropped
in each of the past five years, said a
March IS, 2004, report. District
Attorney Tom Keith said its because
juries have become'more skeptical of
the justice system. Flaws' revealed
during the process to exonerate
Darryl Hunt in the death of Deborah
Sykes iIi 1984, as well as other highprofile convictions that have been
overturned by DNA evidence, have
led to juries questioning more of
what they see from prosecutors.
NJ - In early May '04, officials at
the Essex County Jail cut 600
calories from inmates' diets to save
up to $1 million-a-year in food costs
and allegedly to improve the Jtealth
of the 2,200 inmates. Officials said
they will feed inmates more fiber and
less fat, salt and cholesterol. Inmates.
complain the new portions are too
small.

NY - Two" rilen caught up in a
dragnet following 9/11 filed a
lawsuit the' first week of May
alleging they had been abused by
federal agents.
Javaid . Iqbal, a
Pakistani, and Ehab Elmaghraby, an
Egyptian, were held for several
months in a Brooklyn jail, the same
jail where last year the U.S. Justice
. Dept.
discovered
widespread
prisoner abuse. The two men claim
they were frequently hit and cursed
as "bastard Muslims" by .federal

29-~-------

_

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

agents. One of the men states an
agent ,sodomized him with a
flashlight during a body-cavity
search. Both men were released
from jail in 2002 and deported, after
pleading guilty to minor crimes
unrelated to terrorism.
NY - The New York ACLU said
during Apr. '04 that the ion scanners
used by state prisons to detect
contraband on visitors are subject to
giving false positive readings for
illegal drugs and explosives. Prison
officials defended the use of the
devices at 15 prisons, saying those
prisons have reported declining
numbers of prisoners testing positive
for illegal drugs.
OR - A report dated March 12,
2004, stated Timothy Howard and
Gary Lamar James are suing the state
for compensation after being
wrongfully convicted of killing a
security guard in 1976. Howard and
James spent 26 years in prison before
a judge released them last year
because of evidence not available at
trial. They could receive up to
$40,330 for each year in prison, plus
lost wages and attorney fees.

ADVERTISING NOTICE
Due to a concern for our members, lbe FPLP staff
tries to ensure that l1dvcniscrs in these paaa urc
repU1llble and qualified to provide the services being
offered. We cannot meet evay adveniser, however,
so members urc advised to lI1wllys penonaIJy COfttael
advenisers for ftuther information on their
qualifications and experience before making a
clecislon to hire an lIltomey or other professional
savice provider. You should never send legal or
other doc:ummu to lUl a1fvatiser before c:cmUlCting
lbem and receiving directions to send such l11lIteriai.
For those wishing to advertise in FPIJ>, please wrile
for nIICI infonnatlon. Address such mail to:
florida Prison Legal Perspectives
Attn: Advertising
P.O. Box 660·387
Chuluota,FL 32766
Or

Emllil: FPLP@aol.~

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

OR - Thomas Smolka, 56, a Virginia
attorney, was arrested in Portland on
Mar. 24, 2004, as a fugitive who had
absconded after being convicted· on
federal charges of mail and wire
fraud for bilking prisoners and their
families out of money for legal
services he never performed. After
pleading guilty to the charges,
Smolka disappeared.
'He was
arrested by federal marshals in a
Portland condo where he had been
living since June 2003 under a false
identity. As part of Smolka's plea
agreement he is required to repay 17
victims almost $75,000. Smolka had
previously went to prison in Florida
for allegedly killing his wife, but that
conviction had been overturned on
appeal and he was never retried.

[Source: Prison Legal News, 4/04]
RI - Woonsocket patrolman Paul
Rondeau was convict~ of assaulting
a 15-year-old boy in August 2003 in
an inciden\ witnessed by fellow
officers and then filing an inaccurate
report. A judge found Rondeau
guilty of aSsault and filing a false
police report March 17, 2004. He
receiyed a one-year suspended
sentence .and was suspended from the
force with pay, pending his appeal.

RI - A report from May 2, '04, said
state forensic officials are seeking
legislation requiring all convicted
felons to provide DNA samples.
Officials say it would help solve
more crimes. Currently the state
only collects DNA samples from
specific categories of violent felons.

handgun.
UT - A report dated May 4, '04, said
two more people had been charged
with helping to smuggle contraband
into the Utah State Prison. Prison
guard Larry Van Cox had been
arrested in March in connection with
the smuggling. Anna Anderson, 33,
has now been accused with giving
Cox about $5,000 to smuggle
tobacco, a cell phone, a DVD player
and a printer in which a gun was
hidden into the prison. Prisoner
Jeffrey Roberts was .accused of
.helping to deliver the gun.
VA - An increasing· number of
people on probation or parole who
haven't committed new crimes are
being returned to prison on
technicalities
(breaking
release·
conditions), according to a report on
a ,study by the VA Criminal
Sentencing Commission March 15,
2004. From 1998 to 2002, the
number climbed 47% to 1,551.
Often, they repeatedly skipped
appointments with their officers,
failed drug tests or disappeared
. without permission.
W A - The state Court of Appeals

ruled March 17, 2004 that
prosecutors can call defendants liars
when evidence suggests thetre not
telling the truth.
The decision
upholds 'the conviction of Indle King,
Jr. who is serving a 29-year term for
strangling his mail-order bride, King
argued . that his conviction was
tainted because Snohomish County
prosecutors repeatedly called him a
liar.•

UT - A report March 18, 2004
revealed that corrections officer
Larry Van Cox was accused of
smuggling contraband into prison for
bn'bes totaling $11,000.
Cox
allegedly
smuggled
cigarettes,
chewing tobacco, cell-phones, a
DVD player and DVD's between
May and December last year. He
also was accused of smuggling in a
portable computer printer in which
prison officials found a .32 caliber

30--------------

- - - - - - - - - - - - - - FLORIQAPRISONLEGAL

Perspectives - - - - - - - - - - - -_ _

Florida Prisoners' Legal Aid Organization Inc •.

BECOME A MEMBER
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Prisoners' Legal Aid Organization, Inc.
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1. Please Check ./ One:

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r:r Please DIlIItc all checks 01' money orcIcrs payable to: Florida Prisoners' Lcpl Aid OrpnizadOD, Inc. Please complete the above fonn IIIld sc:ild It
wilh the iacI1clIIed IJICIIIbCrsbfp dues or subscription amount to: RorldD PrUrwn' Ugal AidOrp1tIzIzIIOIIlnt:., P.o.1kJJ1l660-381. ~ FL
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for mcmbcrsblp. New, unused , US posta&e SUImpS arc acccp1able from prisoners for membership dues. Mcmbasbipsrun
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David ~ CoUins, Attorney at Law·
Fonner state prosecutor with more than 18 years of criminal law experience
"AV" rated by Martindale-Hubbell Bar Register ofPreeminentLawyers
Your voice in Tallahassee representing prisoners In all areas ofp~st-con~ictlon relief:

Plea Bargain Rights
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Appeals
3.800 Motions
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Write me today about your easel

David W."Collins, Esquire
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Monticello, FL 32345
(850) 997-8111
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Before you decide. ask me to send you free written information llbout my qualifications and experience."

31

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VOLUME 10. ISSUE 3

MAY/JUN 2004

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