FLORIDA PRISON LEGAL

ers~ ectives
VOLUME 11

ISSUE 3

ISSN# 1091-8094

- FlLOmDAlPAlROlLIB Examimimg Aspects of
Five-Year Setoffs

concerning parole hearing setoffs that may provide viable
grounds to challenge improperly imposed fiv~year
setoffs.
Setofl'TimeUne

by Bob Posey

ncreasingly, Florida's parolo-eligible prisoners I are
being considered for parole only every five years. The
Florida Parole Commission (FPC) is the beneficiary of
such long-term setoffs between parole hearings, as it
means even less work for the Commission that almost
everyone, even state lawmakers, agrees is incompetent,
duplicative of other agencies' work, and a "dinosaur" that
should be abolished. (See: Last issue of FPLP, Vol. 11,
Iss. 2.) The Commission was no doubt relieved when a
1997 change in Florida's laws 2 allowed for fiv~year
setoffs between parole hearings for specific, and the
remaining majority of, parole-eligible prisoners, instead of
having to conduct hearings every two years as had
previously been the law. 3 Yet, although an increasing
, number of parole-eligible prisoners are being subjected to
fiv~year setoffs between parole hearings, few have given
any time to understanding how the fiv~year setoffs came
about or to understanding how, in cases, they are imposed
illegally.
.
This article examines the history of the length of
time allowed between parole considerations in Florida
law. It will also examine the evolution of case law that
has allowed longer setoffs between parole hearings. And
it will discuss various aspects of laws and rules

I

MAY/JUN 2005

Before 1978 all prisoners in Florida became
parolo-eligible upon being sentenced to prison and the
majority were released . from prison under parole
supervision.
Prior' to 1978 Florida parole statutes
provided that parole hearings for all prisoners should be
conducted "at periodic intervals not less often than
. annually." 4
In 1978 numerous changes were made to the
state's parole laws. In addition to requiring the (then
named) Parole and Probation Commission to develop and
implement objective parole criteria, in an attempt to
reduce what legislators saw as arbitrary and capricious
paroles and parole denials,. changes were also made to the
allowed length of parole heariiJg setoffs. A new statute
adopted that year allowed the Commission to set off
parole hearings (interviews) for those prisoners sentenced
to more than five years for two-year periods. instead of
just one year. S
,
Almost twenty years later, with only a relatively
few parolo-eligible prisoners left in the prison system,
thos.e who were serving the longest sentel=s, 6 the state
Legislature amended the statute created in 1978 to provide
for even longer hearing setoffs for most of the remaining
parolo-eligible prisoners. That amendment aJlows for
fiv~year setoffs between parole hearings (mterviews) for
prisoners who are parolo-eUgible and who were convicted

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FPLP.Resource List 2005 •.........•.....•..,••...•....•..••.•.•.....•....••..18
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Florida Prison Legal Perspectives

.,c·RIBIQII8ISlflIIE.,ERSPECTlVES
;. :",P.O. BOX 660';;387
CHUWOTA,m.ORJDA32766
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A ~Ol (<<:) (3) Non-profit Organization
E-mail: fn!n(cf301.c001
Website: W\\w. fpljlO.QCR

FPlAO DIRECTORS
Teresa Burns-Pgsey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton, Esq.,

FP1PSTAFF
Publisher
Editor
Research

Teresa Bums-Posey
Bob Posey
Sherri Johnson

ADVISORY BOUD
William Vail Poyck Linda Gottieb
Anthony Stuart
Susan MalUling

2

._

of murder, attempted murder, sexual battery, attempted
sexual battery or who are serving a 25-year minimum
mandatory sentence. 7 Most of Florida's remaining 5,500
parole-eligible prisoners fall within one of those
categories.
.
Florida is not the only state that has parole and
that has increased the length of time between parole
consideration hearings or interviews. However, there is,
in most cases, a significant difference between Florida's
parole situation and that in other states. While many other
states' '. entire prison populations are parole-eligible,
Florida only has a small number of remaining parole. eligible prisoners in relation to the number of its total state
prisoners. 8 The relevance of that difference to the legality
of extending the length of time between parole
considerations, when such extensions affect a majority
instead of a specific minority of parole-eligible prisoners
in a given system, ~y be legallysignifjcant, but
discussion of same is beyond the limited scope of this
article. It is worth mentioning, however, to provide
context to the following discussion.
Challenges to Parole Setoffs
Parole-eligible prisoners have not been totally lax
in challenging the extensions of time between parole
hearings or interviews. Although the most significant case
law to be developed on the issue has originated out of
other states (specifically states that still have active paroleeligible sentencing in place). That litigation and the few
cases that have originated in Florida have almost
exclusively been ex post facto challenges to the extension
of parole setoffs.
Following Florida's revision of its parole laws in
1978 (including allowing two-year. parole hearing setoffs
instead of only one year for those parole-eligible prisoners
with more than a five-year sentence), prisoner Charles
Damiano challenged the changes in federal .court. He
claimed the changes violated the Ex Post Facto Clause of
the US Cons!itution. 9 .That Clause prohibits states from
retroactively altering the defmition of crimes or increasing
the punishment for a crime after the fact However,
Damiano was unsuccessful. .The Eleventh Circuit Court
of Appeals held that the 1978 revisions of Florida's parole
laws do not violate the Ex Post Facto Clause. to However,
Damiano had not specifically challenged the parole
hearing setoff provision. That issue was not directly
addressed until a few years later.
.
In 1991 the .Eleventh Circuit was faced with a
direct challenge to parole hearing setoffs. At that time the
court distinguished the Damiano 'case as challenging the
change to factors used to determine parole, not a challenge
of the change of eligibility in parole reconsideration
hearings. In the case of Akins v. Snow \\ the Eleventh
Circuit explained that: "The elimination of a parole
reconsideration hearing does not simply alter the methods
employed to determine whether an otherwise eligible

Florida Prison Legal Perspectives
inmate is granted parole. A parole reConsideration hearing
is both in law and· in practice an important component of a
prisoner's parole eligibility. The change is a substantive
one that effectively disadvantages an inmate..... 12
Consequently, the Eleventh Circuit in Akins found
that a Georgia change in the law that allowed eight-year
parole setoffs instead of one-year setoffs, as was the law
in effect at the time the prisoners were convicted, was a
retroactive Ex Post Facto Clause violation.
However, four years later the US Supreme Court
called the rationale in the Akins decision into question in a
case out of California. In Cali/omia Dep't ofCo"ections
v. Morales 13 the Supreme Court upheld a change to
California's parole laws that allowed up to a three-year
setoff in parole hearings for prisoners who had been·
convicted of more than one offense involving the taking of
a life and if the parole board found it was not reasonable
to expect that parole would be granted at a hearing durin§
the following years and stated the bases for the findings.
The Morales Court found that it was significant that the
California changes did not have any effect on the date of a
prisoner's initial parole hearing and only affected
subsequent hearings,' and that the amended law only
applied to "a class of prisoners for whom the likelihood of
release on parole [was] quite remote." 15
The Supreme Court concluded that the
amendment to California parole laws did not violate the
Ex Post Facto Clause because it "create[d] only the most
speculative and attenuated risk of increasing the measure
of punishment attached to the covered crimes." 16
Florida responded to the Morales .decision two
years later (in I997) by amending its parole laws to allow
fivo-year setoffs between subsequent parole hearings for
parolo-eJigible ~risoners who had been convicted of
specific crimes. 7 Florida carefully crafted its amendment
to comply with the findings in Morales so that it could
survive any ex post facto challenges. To that end, the
amended statute: (I) has no effect on the date of a
prisoner's initial parole hearing, affecting only subsequent
hearings; (2) requires that a hearing must be held on the
matter, (3) mandates that a fivo-year setoff is only allowed
if "the commission finds that it is not reasonable to expect
that parole will be granted at a hearing during the
following years.....; and (4) requires that the Parole
Commission state the basis for the decision to impose a
fiVi>year setoffin writing. 18
Florida's 1997 amendment allowing five-year
setoffs was challenged as an ex post facto violation b~
prisoner Herbert Tuff, unsuccessfully, in state courts. 9
The state courts, relying in large part on Morales, held that
Florida's five-year setoffscheme was constitutional.
During that same period other states with parole
systems were moving to amend their laws to allow longer
parole setoffs, Alabama being one. That state went even
further. The parole board in Alabama amended its rules to
allow eight-year setoffs between parole hearings for

specific prisoners. Yet, the rule lacked some of the
safegurards determined to be important in Morales, and
therefore sparked litigation that again went all the way to
the Supreme Court.
Reviewing the Alabama amendments, the
Eleventh Circuit found them to be deficient in Jones v.
Garner. 20 However, when the case went to the Supreme
Court, as Garner v. Jones, 21 the Eleventh Circuit's
decision was reversed and a new hurdle added for
prisoners to jump when challenging extended parole setoff
provisions.
The Supreme Court in Garner dismissed as
inconsequential the deficiencies found by the Eleventh
Circuit in the Atabarna rules, and instead emphasized that
"[t]he question is 'a matter of degree'..••The controlling
inquiry [in Morales] was whether retroactive application
of the change in California law created 'a significant risk
of increasing the measure of punishment attached to the
covered crimes.,.. 22 Applying that standard, the Supreme
Court concluded there 'was not a significant risk inherent
in the Georgia rule to find it an ex postfaCIO violation.
In Gamel', the Supreme Court ultimately held
that: "When the rule does not by its own terms show a
significant risk, the [prisoner] must demonstrate, by
evidence drawn from the rule's practical implementation
by the agency charged with exercising discretion, that its
retroactive application will result in a lon~er period of
incarceration than under the earlier rule."
Thus, the
Supreme Court concluded that if the rule [statute, etc.]
does not by its own terms show a significant risk, the
prisoner "must show that as applied to his own sentence"
the risk is increased.• 24
Subsequently, the Eleventh Circuit applied the
.reasoning in Garner to hold that "an analysis of claims
that [the statute at issue] violates the Ex Post Facto
Clause...must be made on a cas~by-ease basis,to with the
. prisoner showing the amended statute or rule, as applied
to his sentence, "created a significant risk of increasing his
punishment" 25
The result of those decisions is that as long as
states generally include the safeguards approved in
Morales in any changes to its parole laws (or rules) to
avoid them, on their own, from exhibiting any obvious
risk of increasing punishment. then the, perhaps
insurmountable, burden is shifted to the prisoner to show,
by evidence, that he will serve longer in prison with
application of the longer parole hearing setoff. .A perhaps
impossible burden to carry.
One might best be served, therefore, in looking at
other means ofchallenging the longer setoffs.
Examine the Angles
Often prisoners contemplating litigation to correct
what they pet'Geive is an· injustice believe that the most
effective remedy is to bring some type of constitutional
challenge in the federal courts. That perception is a

Florida Prison Legal Perspectives

4

holdover· from the days when the federal courts were more
willing to give prisoners fair and impartial consideration
on cOnstitutional claims. Those days are largely gone.
The rights of prisoners recognized in the 1970s and 80s
have been roUed back. reduced, or even eliminated by
Congress, legislatures, and the courts over the past IS
years. Yet. prisoners, persist in looking to the Constitution
and federal courts for relief, when they might more
quickly and effectively achieve their goal by examining all
angles of a situation before assuming that a constitutional
claim is the only way to go.
Administrative and state court remedies should
not be overlooked in the quest to challenge, what is
afterall, an administrative agency. Especially when that
agency, like the FPC, has a reputation of incompetence
and mismanagement.
Earlier this year even state
legislators criticized the FPC, calling it a "bad nighbnare,"
" dinosaur," "ineffective," "obsolete," and "like a bad
movie." 26 When an agency garners such critic~m it is
making mistakes, and lJlistakes can be exploited. '
For example, the 1997 statute which created the
authority for the FPC to defer parole hearings for specific
parole-eligible prisoners for five years mandates·that the
FPC comply with certain requirements when imposing
such setoffs. Pertinently, the FPC must hold a hearing to
impose such setoffs, make a finding that it is not
reasonable to expect that parole will be granted during the
deferred five years,and state the bases for that finding in
writing. 17
The Commission is not likely to skip a parole
hearing. They have to hold the hearing to deny parole
anyway. Nor are they likely to forget making a statement
on the "Commission ActionlPresumptive Parole Release
Da,tett or "Commission Action/Subsequent/Special
Interview" forms provided to prisoners after the hearing
stating that the next hearing will be held in five years
because the FPC finds it's "not reasonable to expect
parole will be granted during that period" That's easy
enough to type onto the form. But, when it comes to
stating the bases for that finding, someone actually has to
do a little work and go through the files and write down a
few reasons for the five-year setoff.
Although writing down a few reasons may not be
a big job, FPC commissioner and employees must have a
lot of distractions. They have been known to write down
reasons that don't apply to the prisoner being setoff, as if
they are reasons from another prisoner's file. Also,
especially during 2003 when ·the former FPC chairman,
Jimmie Henry, was being charged for misusing FPC funds
and subsequently four top FPC administrators were forced
to resign, 2S some "Commission Action" forms had no
written reasons provided on them to justify five-year
setoffs.
The FPC has no established grievanceJ'rocedure
to seek administrative relief for such errors.
And in
order to correct such errors a new parole hearing would

have to be afforded, since the reasons for a five-year setoff
have to be found at a hearing. 30 In such cases a letter to
the FPC requesting a new hearing to' correct erroneous
reasons for setoff. or to provide written reasons for the
setoff, would satisfy the requirement that a "demand" be
made to perform a statutory duty before seeking
mandamus or declaratory and injunctive relief in the
circuit court. 31
However, the above opportunity to obtain a new
hearing before the five years have expired would only be
available to a limited number of parole-eligible prisoners.
Affecting more, possibly all, parole-eligible prisoners who
have been set off five years is another situation.
The FPC's formal administrative rules, located at
Chapter 23, Florida Administrative Code (F.A.C.), 32 have
not been updated since 1994. 33· That serious error on the
FPC's part creates an opportunity to challenge all five-'
year setoffs.
Although the Legislature amended the statutes to
allow the FPC to impose five-year setoffs in 1997, the
Commission never got around to changing its rules from
allowing only two-year setoffs to allowing five-year
setoffs. Currently, FPC rules only.allow, at a maximum,
two-year parole hearing setoffs. 34 The FPC's written
Procedure Directives, which clarify the Commission's
formal rules, are even more clear that the maximum parole
hearing setoffallowed is two years. 35
While it might be assumed that it doesn't matter
that the FPC has not adopted a rule all~~ five-year
setoffs, that assumption would· be a mistake.
But the
key to challenging five-year setoffs under this situation is
that the FPC must follow its own rules, and they only
allow a maximum two-year setoff. It is well-established
that agencies must follow their own rules. 31 A petition
for writ of mandamus is the proper vehicle to use to
compel the FPC to follow its own rules. 38
Conclusion
Between now and next March when the 2006
legislative session begins, Florida's long-suffering paroleeligible prisoners ~ve a unique opportunity to, by their
efforts, be part of bringing enough pressure on the' FPC
that it will contribute to finally breaking the Commission's
back. 39 If the FPC is allowed to use the time between
now and the next legislative session to correct the
problems that legislators have with the Commission,
without its many other problems being exposed, then
parole-eligible prisoners will only have themselves to
blame. The more challenges and distractions that the FPC
has right now, especially if it has to provide new hearinBs
to all those prisoners who have been set off five years, the
better it is. And, it beats sitting back, doing nothing, and
waiting for your life to slowly slip away in five-year
increments.

Florida Prison Legal Perspectives
End Notes
I.

Parole is a fonn of post-prison supervision. Parole-eligible
sentencing was essentially abolished in 1983 when Florida
switched to a guideline sentencing scheme. Since then no
new prisoners are parole-eligible. except for those sentenced
to life with a 25-year minimum mandatory who were
sentenced before natural life sentences became the alternative
to the death penalty in 1994. Currently there are
approximately 5.500 parole-eligible prisoners remaining in
Florida's prisons, all of whom were either sentenced before
1983 or who are serving a pre-I994 life with 25-year
minimum mandatory sentence. Florida's total .prison
population currently exceeds 82,000, making parole-ellgible
prisoners a minority.
•
2. § 947.174 (997)
3. § 947.174 (1978)
4. § 947.16(3) (1941)
5, Chapter 78-417 § 15, Laws of Florida. creating § 947.174,
Florida Statutes.
6. See Note I., above.
7. Chapter 97·289 § 2, Laws ofFlorida. Section 947.1 74(1)(b),
Florida Statutes currently states:
"For any inmate convicted of murder, attempted murder,
sexual battery, attempted sexual battery or who has been
sentenced to a 25-year minimum mandatory sentence•• ", and
, whose presumptive parole release date is more than 5 years
after the date ofthe initial interview. a hearing examiner shall
sdIedule an interview for review of the presumptive parole
release date. Such interview shall take place once within 5
years after the initial interview and once every 5 years
thereafter if the commission finds that it is not reasonable to
expect that parole will be granted at a hearing during the
following years and states the bases for the finding in writing.
For any inmate who is within· 7 years of his or her tentative
release date. the commission may establish an interview date
prior to the 5-year schedule."
8.
9.

See Note I., above.
Article I. § 10, US Constitution.

29.

30.
31.

.

32.
33.

34.
35.

36.
37.

10. Damiano v. Flo. Parole and Prob. Comm'n, 785 F.2d 929
(I lib Cir. 1986) (Damiano did not directly challenge the twoyear setoffs, his challenge primarily focused on the 1978

II.
12.
13.
14.
15.
16.
17.
18.
19.

20.
21.
22.
23.
14.
25.

Objective Parole Guidelines as applied retroactively to deny
him parole.)
Aklm v. Snow, 922F.2d 1558 (11 11I Cir. 1991)
Id. At 1565
.
Call/ornla Dept' 0/ Com. V. Morales, 514 U.S. 499, 115
S.Ct. 1597 (1995)
Id. at 503, 115 S.Ct. at 1600
Id. at 507, 510, 115 S.Ct. at 1602-03
Id. at 514,115 S.Ct. at 1605
See Note 7., above
See Note 7., above
Triffv. Slate, 732 So.2d 461 (Fla. 3d DCA 1999)
Jona v. Garner, 164 F.3d 589 (11 11I Cir. 1999)
Game,. v. Jones, 529 U.s. 244, 120 S.Ct 1362 (2000)
Id. at 250, 120 S.Ct. at 1367 (quoting Morales, 514 U.S. at
S09, 115 S.Ct. at 1597)
Id. at 255, 120 S.Ct. at 1370
Id.
Harris \I. Hammonds, 217 F.3d 1346, 1349-50 (11 1b Cir.
2000)

16. Gary Fineout. and Debbie Cenziper, "Parole Commission
Faces Ax," 'I7u1 Miami Herald, 2 April 2005.
27. See Note 7., above.
28. Bob Posey, "FPC Chairman Resigns Under Fire." FPLP,
Vol. 9, Iss. 3, PI- 22; Bob Posey, "FPC: Culture of

38.

39.

ComJption." FPLP, Vol. 9, Iss. 4, pg. 30; Bob Posey,
"Former FPC Chairman Arrested," FPLP, Vol. 9, Iss. 5, pg.
16.
The only instance in which the FPC has an established
administrative grievance/appeal process is to request review
of the initial setting of a Presumptive Parole Release Date
(must be requested within 60 days of the prisoner being
notified of the initial setting of the PPRD). The only thing
reviewable. however, in such appeal is the PPRD•.
See Note 7., above. .
What judicial relief to be sought would depend on what
response is received to the letter to the FPC. IfnO response is
received. it can be taken as a refusal to act and mandamus
used to compel the requested action. If the FPC responds and
disputes that the written reasons given are erroneous, or
disputes that no written reasons were given (creating a
controversy), then a complaint for declaratory judgment and
injunctive relieve under Chapter 86, Florida Statutes. would
appear to be a proper remedy. (Keep copies of all
correspondence. it is evidenc:e.) In either case. a request that
a new hearing be ordered (to either provide valid reasons or
some reasons) should be Included in the reliefrequested from
the court. The correct venue for either action would be the
Sec:ond Judicial Cin:uit Court in Leon County.
A copy of Chapter 23, F.A.C., is available in every major
institution's prison law library in the Florida Administrative
COtk Annotated. (Red Binder).
Actually, one section of Chapter 23, F.A.C., was amended in
2004 cxmceming Definitions, Rule 23-21.002, but that is not
pertinent to this article. . No other sec:tion of Chapter 23,
FAC.,has been amended since 1994, which is pertinent.
See: Rules 23·21.013(1), (3) and (b), and 23·21.oo2(32)(a).
F.A.C.
FPC
Directives 3.03.01.01 § V, and 3.03.02.03 §
m. The Commission's Procedure Directives are not
available in institutiOnal law libraries. An outside source,
however, can obtain copies of them from the FPC with a
public records request.
See: § 120.54(1), Florida Statutes.
Bass v. Perin, 170 F.3d 1312· (11 1b Clr. 1999); Campos v.
INS, 32 F. Supp. 2d 1337(S.D. Fla. 1998); Aultman v.
Singletary, 708 So.2d 1004 (Fla. III DCA 1998); Cleveland
Clinic \I. Agency /0,. Health Core, 619 So.2d 1237 (FIa. III
DCA 1996); DecDl'ion v. MDI'tinez, 537 So.2d 1083 (Fla. III
DCA 1989); Woodley v. Health and Rehabilitative Services,
505 So.2d 676 (Fla. 111 DCA 1986); CIDI'k v. Wainwright 490
So.2d 10S5 (Fla. III DCA 1986; Granger \I. FSP, 424 So.2d
937. (FIa. 111 DCA 1983); and Gadsden State Bank v. Lewis,
348 So.2d 343 (FIa. III DCA 1977).
.
Williams \I. James, 684 So.2d 868 (Fla. 2d DCA 1996), citing
Tume,. \I. Singletary, 623 Sci2d 537 (Fla. III DCA 1993).
And there should be no filing fee charged for such action per
Schmidt v. Cnuoe, 28 Fla.L.Weekly S367a (FIa. 2003).
See: Last issue of FPLP, Vol. 11, Iss. 2.,~FPC Escapes
Abolishment. At Least for Another Year." •

Procedure

Dog §millffMen Okay

M

cGruff, the crime do& is doing more than just taking
a "bite" out of crime, he is sniffmg it ouf too.
Whether you are walking down a pedestriatn sidewalk and
authorities stop you to check for identification, or you are
being stopped on the highway because your car has a.
cracked taillight lens, as long as it's a legal stop, you may .
very well get dog sniffed and the United States.Supreme
Court has ruled that it does not violate your constitutional
5

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••

Florida Prison Legal Perspectives

'.-

rijhts1mder the Fpurth'~enl

", ····<·That Was'the higheourt's ruling in a recent case
the 'state "of' illinois.' R/inois v. eabl1es, 18
F·IILL.Weeldy'F.ed. SIOO (1124/05). A state trooper had
pulled over '8' 'Speeding car; He called the stop into
headqUarters .and a· second trooper overheard the call.
8incethe second troOpet was nearby, he decided to go by
thO'scene: :'rhe second troOper' ~ppened to be carrying a
narcotl~~on dog with
.. ...' . At the scene. while the sPeeder was sitting in the
first,trooper's patrOl car, 'in the process of getting off on a
warning tickdo the seCond trooper arrives and decides to
take his dog for a·walk. 'around the speeder's car. When
the dog-walk reached the rear of the car, the dog alerted
the troopei"sattention to the speeder's trunk. Being
alerted, both troopers searched the trunk where they found
drup (marijuana).. Asa result of the fiitd, the speeder did
not get offon a warning.ticket but was arrested, and it was
not for speeding. He-.was arrested and convicted of a
narcotics offense and subsequently senteJ1ced to 12 years'
prison an4 a S2S6,13~ fine.
Al trial, the speeder had .motioned the court to
suppress the seized eVidence and quash the arrest due to a
violation of his Fourth·Amendment rights. The trial judge
denied·f:he If!,Otion!.imd ;upheld the seizure, basing his
decision Qn .~~officers had not prolonged the stop and
the. dpg' ilert. ~ .• suftici~tly reliable to provide probable
causa to Conduct. tfte search. .The appellate court affirmed
the ~isi~ ~we.ver, the ~lIinois Supreme Court reversed

from

mm.

it.-. ,-...

....

I

'.

.

'

.

,

The state S1.lpremeCourt concluded that the use of
the dog unjustifiably enlarged the scope of a routine traffic
StOp into a drug inveS~ig8tion. Subsequent to that decision
dIe~fa~ of. Qlinois sOught review of the decision in the
United States·Supreme Court. . '.'
.
. :.:: In srantlng review of the case, the high court
nOtecf Uult the: initial,seizure of the speeder, when he was
stopped on the'highway,'was'based on probable cause and
was, concededly: laWful.. Further, the stop was not
prolongect.more than it would·take to process the speeder
for .a. warning :ticket. "Despite knowing that, the state
S~preme Courtlleld that the initially lawful traffic stop
becamo-an·unlawfbls~ solely as a result of the canine
sniff: that occurred outside the car. That is, the state
Supreme Court· had,.characterized the dog sniff as the
~use.ra~ than the alnsequence of a constitutional
ViolatiOn.

,

.. !'."

.

The'hipcourt's view Was that "conducting a dog
sniff would not change the character of a traffic stop that
is lawful at its inceptiQD aitd otherwise executed in a
reasQnabfe manner unless the dog sniff itself infringed on
the .speeder's l~nstitutionally protected interest in
privacy,".which was found it did not It related that "the
use of a well-trained n8rc0tics-detection dog-one that
does· not expose, non-contraband items that otherwise
would remain. hidden· from .public view, during a lawful

traffic stop, generally does not implicate legitimate
privacy interests. Any intrusion on the person's privacy
expectations does not rise to the level of a constitutionally
cogniza1?le infringement."
The high court's conclusion was based on and
consistent with, it noted, its recent decision in a case that
regarded the use of a thermal-imaging device that detects
the growth of marijuana in a home. It was found that the
use of such a device constituted an unlawful search
because it was capable of detecting lawful activity. Forexample: intimate details such as at what hour each night
the lady of the hous~ takes her daily sauna and bath.
In its conclusion the high court decided that the
legitinulte expectation that infonnation about perfectly
lawful activity witt remain private is categorically
distinguishable from the speeder's hopes concerning the
non-detection of contraband in the trunk of his car. A dog
sniff conducted during a lawful traffic stop that reveal no
information other than the location of a substance that no
individual has any right to possess does not violate the
Fourth Amendment, so ruled the United State Supreme
Court.
Would the question arise, however, of a
constitutional issue if an individual was subjected to a
search during a lawful stop when a "well trained
narcotics-detection dog" alerted to drug residue?
Otherwise, if you carry paper money, rent cars, drive the
company vehicle, anything that has been in contact with
numerous other people and wh~ drugs could have bee'n
used in or around, where the drug's residue has been left,
be sure to wash it well or you may get dog sniff alerted
too.•

Populations in isolation in biggest prison systelDS
The nation's five largest state prison systems. and the nwnber ofinmates reported to be in solitary confinement this year:
State
California
Texas

Florida
New York

Illinois

TotaJ inmates
163.000
150.000
84.000
63,242
43.418

. Inmates in Isolatfon Pet. in Isolation
7.135
9,867
6,242
4,292
2.789

4.4%
6.6%
7.4%
6.8%
6.4%

Holiday VISiting Schedule
~
n May 5, 200S, a Florida Department of Correction's
O
(FDOC)visitation rule, 33-601.722, was amended,
and the amendments became effective, which increases

the number of holidays upon which family visitation win
be allowed and providing that if an approved visiting
ho~iday falls on ~ weekend day then either the preceding
Fnday or follOWing Monday will also be observed as a
holiday and visiting allowed on those days.
The amended rule now states:

. '.'

Florida Prison Legal Perspectives
33-60.722 Visiting Schedule.
(1) Regular visitors shall be allowed to visit
between 9:00 a.m. and 3:00 p.m. Eastern Standard Time
(EST) - 8:00 a.m. and 2:00 p.m. Central Standard Time
(CST) - each Saturday and Sunday.
(c)Regular visiting shall occur on the following
holidays:
1. New Year's Day
2. Birthday of Martin Luther King, Jr., third
Monday in January.
3. Memorial Day
4. Independence Day
5. LaborDay
6. Veteran's Day, November 11
7. Thanksgiving Day
8. Friday after Thanksgiving [and]
9. Christmas Day
(d) If any of the holidays listed in paragraph (c)
above falls on a Saturday, the preceding Friday
shall· be observed as a holiday. If any of these
holidays falls on a Sunday, the following Monday
shall be observed as a holiday.

FDOC visitation rules are required to be posted at
the entrance to every institution's visiting park (but often
those are out of date). The visiting rules can also be
. located
on
the
Internet
at:
www,dc. state.q.uslsecretaryllegallch33/rulindex.html •

FormerWarden Charges
PrisonerAbuse Rampant
inlFlorida

A

former Florida prison warden has claimed
that Florida prisoners are routinely abused
and that gangs of prison guards use violence to intimidate
prisoners•. Ron McAndrew, who spent 23 years working
corrections in Florida and was warden at three prisons,
spoke out at a public hearing held in Tampa during April,
2005. He also claims that prisoner abuse in the state
system is condoned. by many prison administrators and top
Department of Corrections officials. His description of a
prison system out of control and mismanaged largely drew
only silence out ofTallahassee.
.
The Department of Corrections denies that
prisoner abuse is occurring. The governor's, Jeb Bush's,
office had no comment on McAndrew's claims. The only
one who expressed any interest in Tallahassee was
Florida's attorney· general, Charlie "Chain Gang" Crist
Charlie, who gave himself the sobriquet "ChainGan!f in
. the 19905 when as a s~te legislator he tried to restart .

prison chain ganp in Florida,'said. he . Wilt' reVieW;
McAndrew's abUse claims.'
,
'. .
The public hearing at wbic~ McAndrews spqu
out was held by the. newly created COmmissi()n on ~~
and Abuse in America's PrisOns•. The' CoDlJDissiQO is
sponsored by the Vera Institute of lustiCe~ ccKba~
by former US Attorney Gelieral Nicholas KII~ aDd·
includes former FBI -director WUliani.·
no
Tampa hearing was the first of four heariup'that will W'
held around the US. The pUrpOse of thO hearings is -tc)
gather testimony from witnesseS COIu:erning seri~ and
systemic abuse in America's p~:... ,.
., . ..:.. ,
The US now incarcerates inOre ~ -2-_QIl.
peoplo-over 82,000 just· in FlOrida's ~. the
treatment of those prisoners ieflects·Ouf society'~ Vatues.·
is the Commission's message. M~"o( ~p~:
will be released back into the nationis communities'once
they serve their time. Their fUturO· behaVior 'WiU: retieCi.
their experiences in prison.· , . . . _'" . , ,'.
No one· from the FlOrida ~ .. of
Corrections attended the two-d8y .bearina. ,m: T'"
dispute McAndrew's claims"about wbat he'· ~ t".
happening in Florida's prisonS. He emPhaSized th&tp.it··
of Florida's problem is that whiSt1e"blowing guards w,h9:
come forward to report abuse flice ~Ussi~~" ..
.'
Whether Charlie "Chain GaDi' Crist really ~ ,
to investigate abuse in. Florida's~ reIQ&ins to be'
seen. Knowing Charlie and his .-iniss-an-opportUnit1
to appear the toughest on criDtO '8ItdcrimirialS, Iio'migltt .
just want to know where aU the· fun is going on thBt he's .
been missing. •
.

SesSions.

>.) ,
tq.:

ith summer upon us family members .or fiiendi
visiting Florida state prisoners 'will . be dressing
to try to stay cool. Tho Florida Dep8nmem or·
Corrections (FOOC) bas 'a rule· that
correctional .
facilities statewide that governs what is appropriate visitOt '
attire. . Unfortunately, most FDOC employees workina in
the visitor check-in areas only have a vague idea wbat that
rule states and many
try to decide, On their, own whI~·
visitors mayor may not wear. Therefore. visito~ shOUld
familiarize themselves.witIi the dress
to'avoictijr"
know how to clear.l1p;'probleins that may arise ~
visiting a prisoner. The dress code ,rUle ~:' ',. " .. :,':'

W
lighter

-covers:

will'

Code,rut.;

33-601.724 Visitor Attire.
Persons desiring to visit shall be fully clQth#Jd' ilrcludmg
shoes. Small hats s~h asbaseball.'.~RI. "rellgiDu6
coverings, or surgical cops 'QI'e 'pentJU8i~le attIN.
Visitors shall not be admitted to the visiting
If ihey
are dressed in lnopproprlate'ottire. Thiwarile1i,asalsum,'
warden or duty warden shDll. be the final
. decision. 7

are#

Florida Prison.Legal Perspectives
.

,

authority and shall assist in resolving inappropriate attire
situations. • Inappropriate attire includes:

studies show that overall marijuana use is the same as it
was in 1990, while daily use by high school seniors has
almost tripled, from 2.2 ~cent to6 percent. And since
(1)
Halter tops or other bra-less attire,
1992, while the potency of marijUana has doubled, the
(2)
Underwear type tee shirts, .
inflation-adjusted cost of marijuana has fallen about 16
(3)
percent. according to those same studIes.
Tanktops~
Some .critics are questioning this focus on
(4)
Fishnet shirts,
(5)
Skin tight Clothing or spandex clothing,
marijuana arrests, claiming it is diverting resources from
(6)
Clothes mOde· with see-through fabric
fighting againSt hard drugs, like coca~ heroin and
unless a non-see-through garment Is worn
methamphetamines and those who traffic in them.
underneath,
While few of· those arrested for marijuana. are
(7)
. Dress, skirts, or Bermuda-length shorts . going to prison, the consequences are severe,· adding to a
growing underclass. Where the arrests' result in a felony
more than. three inches above the knee,
(8)
conviction,
marijuana users may face voter
Any article 01 clothing with a picture or
language .' which presents a potential
disenfranchisement, disqWl1i~cation for student loans or
threat to the' security or order of the
public housing and certain jobs. And they will be stuck
Institution.
'
.
.with a criminal record inaking it hard to. compete in the
(9)
A visitor shall be subject t~ suspension of job market at all.
Recent government research. claims that today's
visiting privileges and the visit shall be ,
terminated if, after admission to the
more potent marijuana cames even more health and
lilsiting area, the visitor changes, removes
societal risks than before.: It can contribute to depression,
. or alters his or her attire so that it is in
suicidal thoughts and schizophrenia, especially.' among
violation a/subsections [(1) - (8)).
teens, according to the research. However, while its use
should be discouraged, usmg such skewed arrest numbers
to claim the war on drugs is working is simply blowing
• The warden, 'assistan~ warden or duty warden is
smoke in the public's eyes.•.
required to be at, the institution during visiting hOurs.
When a dispute arises. over clothing the visitor has a right.
according to the above rule, to request to see the warden.
assistant warden or duty warden to reSolve the dispute.
Marijuana arrests soar
Do not let the. disapproving employee convince you their
Over
adozen years. marijuana arrests inword is final or a warden isn't available, as many will try
creased 113% while otlier drug arrests rose
10%. Total drug arrests went up 41%.
to do. Have a good visit. •
_

Will" on Drugs Focuses on
~juaDa ,
ccording to a new report from the WaShington, DC. based The Sentencing Project. the United State's $35
billion-a-year war on.drugs has turned into a war on lowlevel marijuana users, and the US is losing the war.
Statistics show that marijuana is the most widely
used illegal drug in the US. Reports show about 15
million people smoke marijuana and police arrest almost
700,000 people a year' on marijuana-related charges.
That's almost half of all drug-related arrests in America
each year.
' .
The Sentencing Project's study notes th8t:
marijuana arrests increased 113 percent from 1990
through 2002, while all other drug arrests only rose 10
. percent and, that four out- of fiv~ marijuana arrests are for
possession, not dealing.
.
'
The idea.behind Jhe war on drugs is that a large
number of arrests will reduce both supply and demand.
However, that doesn't appear to be working with
increased marijuana arrests. Both private and government

A

lbtaldrug Marijuana arrests
arrests
"""""'" Other drug arrests
1,600.000
~
!I"

1.200,000

.... _"",

800,000

,-

400,000

~

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1i97,G821

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_Ia: The 5mlenclns Proj«t: mosr rocentdMa ~ ,

REMINDER

.

.

OnaApril ., 20GS, the yearly membenbJp daes for prisoaenCO
become or ..emlla I member' of' Florida Prisoaets' lAP,' Aid
Orpalatloa. lac., WAI IDcreased ODe dollar, from 59 a year to S19 I
year. Dues received IDd postmlrked after April I ia the old amouDt of
59 wiD be prorated tor I 10 mODth membenhlp IDJtead of I fuU year.
An memben receive Flollda PrisOIf 14m persp«t/ta. If you uea't
la FPLA9 member, Jola all today with the above form. If you Ire
liready I member, dOD't foraet 10 rmew your membenblp before It
esplres.
'
,

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841,731J

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Florida Prison Legal Perspectives

POST CONVICTION
CORNER

by Loren RhotoD, Esq.

Sometimes a-eriminal defendant will have several cases pending b,efore one court for
sentencing at the san'te time. If the defendant has different attorneys representing him on the .
different cases (as can be the case with people represented by the Public Defender or court
appointed counsel), sometimes the attorneys may not properly communicate with each other to
ensure that the most favorable sentencing arrangement for all cases is presented. In a situation
where a criminal defendant will. have several cases pending before one court for sentencing at the
same time, defense counsel should attempt to ensure that all cases be sentenced together under a
single sentencing guidelines scoresheet. See F.R.Cr.P. 3.703(d)(2) ["One scoresheet shall be
prepared for all offenses committed under any single version or revision of the guidelines,
pending before the court for sentencing."].
Clark v. State t 572 So.2d 1387 (1991), held that a defendant should be allowed to move a
trial court to delay sentencing so that a single scoresheet can be used in two or more cases
pending against the same defendant in the same court at the same time whether or not a plea of
guilty or a conviction has been obtained. In such a situation, the defendant should be entitled to a
delay in sentencing so that a single scoresheet can be used if the defendant can show that the use
of the single scoresheet would not result in an unreasonable delay in sentencing. Id.
The burden does fallon the defendant to assert his desire for such simultaneous
sentencing and to demonstrate to the trial court's satisfaction·that simultaneous sentencing will
not result in unreasonable delay. Id. 1391. And, if defense counsel fails to object to the court's
use of a single scoresheet in two or more cases pending against the same defendant, in the same
court, at the s~e timet the failure to object waives the issue for appellate review. Id.
Therefore, iftrial counsel had an opportunity to ensure simultaneous sentencing, under a single
sentencing guidelines scoresheet, for several pending .offenses and failed to do so, then counsel
also precluded the defendant from raising the issue on appeal.
Ifdefense counsel fails to ensure simultaneous sentencing under one guidelines
sc~resheet, then it may be possible to file a Florida Rule of Criminal Procedure 3.850 Motion for
Postconviction Relief alleging ineffective· assistance of counsel at sentencing. Before any such
motion is filed, though, it would be wise to make sure that the guidelines calculations under the
single scoresheet are more favorable than the calculations used under the multiple scoresheets. If
this is indeed the case, then it may be advisable to pursue sentencing relief via a 3.850 Motion.
As always, when one is alleging ineffective asSistance of cpunsel, the movant must allege
a facially sufficient claim of a denial of effective assistance of counsel. The two pronged test for
such ineffectiveness is set out in Strickland v. Washington, 466 U.S. 668 (1984). I have
addressed the Strickland standard in past articles andt therefore, will not go into detail about the
test for ineffectiveness of counsel. Nevertheless, one should allege that the attorney was
ineffective for failing to move for simultaneous sentencing ofthe pending offenses under a single
scoresheet. It should further be alleged that trial counsel's ineffectiveness sufficiently prejudiced

,

Florida Prison Legal Perspectives

the proceedings to the extent that there is a.substantiallikelihood that, in the absence of the
ineffectiveness, the outcome of the proceedings would have been different (Le.• that a lesser
sentence would have resulted).
' .
The above infonnation is also important for persons who are before the trial court for
resentencing ifthere are several cases pending before the court for resentencing. If there are
several cases pending in the same court and at the same time, counsel should ensure that they are
being resentenced under the same scoresheet. This will likely help to ensure the most favorable
potential sentencing outcome.

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area ofthe law. both at the State and Federal Level. He has assisted
hundreds ofincarceratedpersons with their cases and has numerous
written appellate opinions. fJ

David ~ Collins, Attorney at Law
Fonner state prosecutor with more than 20 years of criminal law experience
"A~' rated by Martindale-Hul:>bell Bar Regist~r ofPreeminent Lawyers

Your voice in Tallahassee representingprisoners in all areas ofpost-conviction relief:
Appeals
3.800 Motions
3.850 Motions
Stat~ and Federal Habeas Corpus
Writs of Mandamus
Parole Hearings
Clemency

Plea Bargain Rights
Sentencing and Scoresheet Errors
Green. Tripp. Karchesky, HeggE ·::ases
Jail-time Credit Issues
Gwn-time Eligibility Issues
Habitualization Issues
Probation Revocation Issues

Write me today aboutyour easel
David W. CoIlins, Esquire
P.O. Box 541
Monticello. FL 32345
(850) 997-8111

an

lOThe hiring ofa lawyer is important decision thl1t should not be' based solely upon advertisements.
Before you decide, ask me to send you free written information about my qualifications and experience."

10

,

.

J

Florida Prison Legal Perspectives

1fOOC lLegallPhotooopying Costs
Rule is mvalid
by 800m Johnson

O

n May 23. 2005. the First District Court of Appeals
held that the Florida Department of Corrections
(FDOC) does not have. and has never had, statutory
au~ority to adopt and implement a rule requiring Florida
pnsoners to pay S.15 a page for legal photocopies. or if
they are indigent, to have a lien placed on .their inmate
accounts for photocopy costs. Accordingly. the First DCA
held that those portions of FOOC Rule 33-501.302;
F.A.C.• requiring prisoners to pay legal photocopy costs or
have liens placed on their accounts for same. are invalid.
This decision by the First DCA sho,uld result in thousands
of indigent prisoners having photocopying costs liens
~ped off their inmate accounts and solvent prisoners who
have paid such costs for many years being reimbursed the
money they illegally had deducted from their accounts.
,
The case began when Florida prisoners Glenn
Smith and Thomas P. Wells, Jr., filed a petition for
declaratory j~dgment in the Leon County Circuit Court
seeking a declaration that those portions of FOOC Rule
33-501.302. F.A.C.. entitled "Copying Services for
Inmates," that authorize deductions from and liens
imposed on prisoners' bank accounts to cover costs for
legal photocopies. be declared invalid on grounds that the
FOOC had, and has, no statutory authority to adopt or
enforce such costs provisions. Specifically. Smith and
Wells alleged that neither § 20.315 nor § 945.04 of the
Florida Statutes. which had been cited as authority for the
challenged rule by the FDOC, actually contain any
specific or general authority for the FDOC "to make any
assessment against inmates for copying costs."
The circuit court, Judge L. Ralph Smith, however•.
granted summary judgment to the FDOC, finding that §
20.315, Florida Statutes. does authorize the FDOC to
"make" monetary assessments against prisoners. Glenn
Smith appealed that decision, and the appeal court
disagreed with Judge Smith's faultly findings.
The appeal court noted that the FDOC' has had its
photocopying services rule in effect. in one form or
another. since 1983, and that the rule appears to have been
original~y adopted in response to prisoner litigation.
concemmg access to the courts.
The appeal court
discussed that while federal courts have held that
prisoners' right of access to the courts does not require
free and unlimited photocopies for purposes of litigation,
f~1 courts have held that prison officials must provide
pnsoners access to photocopying services, for which a fee
may be charged, to the extent necessary to present claims
in the courts.
From its original adoption in 1983 the FDOC's
photocopying rule established a set fee of $.15 a page to
be paid for each regular size copy. The only statutes ever

cited by the FDOC as authority for the rule were §§
20.315 and 945.04, Florida Statutes. That is until after the
circuit court granted summary judgment to the FDOC in
Smith's and Wells' case. then the FDOC amended the rule
to delete the reference to § 945.04. Florida Statutes as
authority for the rule and replaced it with a citation
§
944.09. Florida Statutes.
That amendment became
effective in April 2004. Obviously. the FDOC itself did
not believe § 945.04 provided authority for the rule and
sought to change the cited statutory authority after an
appeal was filed challenging the denial of Smith·s and
Well's petition for declaratory relief.
Before examining the authority· granted to the
FDOC in the cited statutes. the appeal coui1brietly
examined what statutory authority must be granted to an
agency under Florida law in order to validly adopt rules.
Pursuant to Chapter .120. Florida Statutes, which,
sets forth agency rulemaking requirements:

to

A grant of rulemaking authority is necessary but not
sufficient to allow an agency to adopt a rule; a specific
law to be implemented is also required. Ail agency may
adopt only rul~ that implement or interpret the specific
powers and dutIes granted by the enabling statute. No
agency shall have authority to adopt a rule only because it
is reasonably related to the purpose of enabling legislation
and is not arbitrary and capricious or is within the
agency's class of powers and duties, nor shall an agency
have the authority to implement statutory provisions
setting forth general legislative intent or policy. Statutory
lan~~e granting rulemaking authority or generally
descnbmg the powers and functions of an agency shall be
construed to extend no further than implementing or
interpreting the 'specific powers and duties conferred by
.
the same statute.
Section 120.52(8). Florida Statutes. See also: § 120.536,
.
Florida Statutes (2004).
And acCordingly, a proposed or existing rule is an
~'invalid exercise of delegated legislative authority
If...[t]he agency has exceeded its grant of rulemaking
authority. citation to which is required by s.
120.54(3Xa)1.... or "[t]he rille enlarges. modifies, or
contravenes the specific provisions of law implemented,
citation to which is required by s. 120.54(3)(a)1." §§
120.52(8)(b)-(c). Florida Statutes (2004).
The appeal court noted that under the above
statutory standards. as interpreted by it in Southwest
Florida Water Management District v. Save the Manatee
Clu~• .Inc.,. 773 So.2d 594 (Fla. 111 DCA 2000), "[a)n
admlmstratlve rule must certainly fall within the class of
powers and dUlies delegated to the agency, but that alone
will not make a rule a valid exercise of legislative power."
ld. at 599. "The question is whether the statute contains a
specific grant of legislative authority for the rule. not
w,hether the grant of authority Is specific enough." Id.
1\

Florida Prison Legal Perspectives
(emphasis in original). ".Either the enabling statute
authorizes the rule at issue or it does DOL" /d.
Section 20.315, Florida Statutes, creates the
FOOC and defines its structure and purpose. Among the
goals of the department listed in that statute is the duty
"[t]o ensure that inmates work while they are incarcerated
and that the department make [ ] flVety effort to collect
restitution and other monetary assessments from inmates
while they are incarcerated or under supervision." §
20.31S(1)(b), Florida Statutes (2004). The appeal court
explained, however, that contrary to the FDOC's position,
as adopted by the circuit court, nothing in tha~ provision
authorizes the FOOC to IIUlke monetary assessments; it
only authorizes the department to collect monetary
assessments. Which is in keep,ins with legislative intent.
To hold· otherwise, the appeal court noted, would give the
FDOC unbridled discretion to charge prisoners for any or
aU services rendered by the department. Which, while
that may be appropriate public policy, such a policy
decision would bave to be made by the Legislature. not
tbeFDOC.
The appeal court also exampled that if § 20.315
granted FDOC the authority it claims. then the Legislature
would not have bad to enact specific legislation to allow
the FDOC to collect medical co-payments from prisoners,
meaning that law would be useless, contrary to a basic
rule of statutory construction.
Thus~ the appeal court reasoned, § 20.315(l)(b),
Florida Statutes, does not provide a specific grant of
legislative authority for the cbaIlenged provisions in Rule
33-501.302, F.AC.
.
Turning next to § 945.04, Florida Statutes, the
appeal court notes it only sets forth general functions of
the FDOC, and that nowhere in that statute does it state
the department may assess monetary charges for services
rendered to prisoners.
Then turning to § 944.09, Florida Statutes, which
FDOC tried to assert as aU1hority for the rule's provisions
after the appeal was commenced, the appeal court noted
that section merely sets forth the department's general
rulemaking authority, but although it grants authority to
the department to adopt rules on a variety of topics,
nowhere in that statute is authority granted to the FDOC to
assess monetary costs for any particular service provided
to prisoners.
In fact, the appeal' court noted, the· Florida
Supreme Court recognized that "[s]ection 944.09 is'
mei'ely the generai statutmy authority for the Department
to promulgate rules," and that
~epartment has "I~ng
loolced" to other statutory proVISIOns for the specific .
authority to promulgate particular rules. See: Hall v.
State, 752 So.2d 575, 579 (Fla. 2000). Tberefo~ nothing
in that statute authorizes the provisions to assess
photocopying costs on prisoners as in the challenged rule,
the appeal court determined.

tb:

11

Accordingly, the appeal court held that the
challenged provisions of Rule 33-501.302. F.A.C., are not
supported by specific legislative authority and are thus
invalid.
.,
The appeal cOurt expressed no opiilion on whether
the other relief requested in the declaratory judgment
petition should be granted Oikely a request that FDOC be
ordered to remove photocopy cost liens or' reimburse
money deducted for same from the prisoners' inmate
accounts). The circuit court was directed to address such
supplemental reliefon remand.
See:
,Smith v. Florida Department of
CO"ect;ons,_So.2d-J 30 Fla.L.Weekly DI299 (Fla. lit
DCA 5/23/05).

[Note: Glenn Smith and Thomas Welis, Jr., deserve the
thanks of every Florida prisoner who m.a fIVer been
gouged by the FDOC for legal photocopying costs. The
rule bas been challenged SflVeraJ times over the years,
always unsuccessfully, until Smith and W~1ls went at it
just rigbtwitbtheir lack-of-statutory-authtriy claim. Of
course, with this decision finding that FDOC not only
does not now have, but bas never ha~ lawful authority to
deduct money from prisoners' accounts for photocopying
costs or to place liens· on their accounts' for .same,
prisoners are entitled to reimbursements or to have the
liens removed. However, they will likely have to file
individually to obtain same, the FDOC is not going to
voluntarily reimburse the millions it has illegally taken as
photocopy costs.
.
Prisoners seeking reimbursement should exhaust
the grievance procedures before filing a legal action
seeking return of their mon~y. Those seeking removal of
liens should also exhauSt the grievance procedures before
seeking injunctive relief from a. court. The reimbursement
action could in most cases be filed in small claims courts
at a lower filing fee than in a circuit court (the amount
claimed will govern which type court· bas jurisdiction).
Upon winning, any filing costs and fees could also be
recovered, that should be included in the relief requested
section ofthe,complaint.
The Smith decision could also open Pandora's
Box for the FDOC. if prisoners use it to challenge other
rules of the department. Many FDOC rules exist that were
adopted prior to 1996 when the Legislature repealed the
. department's former "general rulemaking authority" at
former § 944.09(IXr). Florida Statues (1994). That same
year the Legislature enacted the, "specific statutmy
authority" provision in § 120.52(8), Florida Statutes, as set
out in the above article. The FDOC, howflVer, never
obtained specific statutory authority for many of its
previous "general authority-adopted" rules as provided by
§§ 120.536(2) and (3), Florida Statutes. Yet, the FDOC is
still enforcing many of those now-invalid rules, that lack
specific statutory authority to exist, against prisoners Oust
like it was the photocopying costs rule) for one simple
reason-because no one bas challenged them. -bp] •

r"

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Florida Prison Legal Perspectives

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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 thefu// opinion published in the f'loridaLaw Weekly (Fla. L. Weekly); Florida Law Weekly Federal
(Fla. L. Weekly Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (s. Ct.); Federal Reporter 3d (F. 3d); or the
Federal Supplement 2d (F.Supp. 2e1). since these summaries are for general information only.

as

the state's Post Conviction Reli~f
Act set up judicially reviewable
exceptions to the time limit, the
Pace
v.
DiGuglielmo,
18
Act's time,limit was not a "condition
Fla.L. Weekly Fed. S250 (4/27/05)
to filing" but a "condition to
, This case points out that a
obtaining relier' as described in
state post conviction petition that is
Artuz v. Bennett. Thus, the district
rejected by the state" court as
alternatively
found
court
untimely is not a properly filed
extraordinary
circumstances
application for state post conviction
justifying equitable tolling.
or other collateral review that tolls
The Federal Circuit Court of
the Antiterrorism and. Effective
Appeals for the Third Circuit
Death Pen.alty Act's (AEDPA) onereverSed. It relied on its line of cases
year limitations period under 28
to . conclude that the state's post
U.S.C. section 2244(d)(2).
. The background of this
conviction time limit constitutes a
"condition to filing" and that, when a
particular case began when John A.
Pace,·a Pennsylvania state prisoner, . state court deems a ~ition untimely,
it is not "properly filed." It further
filed an untimely post conviction
ruled
that there were
not
petition which was dismissed and
extraordinary
circumstances
Pace appealed. Pace argued that the
justifying that remedy. Because of
time limit was inapplicable to him.
the issue of whether an untimely post
The appeals court affirmed the
dismissal and opined that Pace's, co~viction petition that's rejected by
state court nonetheless may be
petition did not come 'within the state
filed," the United States
"properly
statutory requirem~ts nor had he
Supreme
court
granted certiorari.
.
"neither alleged nor proven" that he
It
was'
found that time limits
fell within' any statutory exception.
on
post
conviction
petitions are
Further, the state Supreme Court
conditions
to
filing,
such
that an
denied review.
untimely
petition
would
not be
When Pace filed his 28
deemed "properly filed." Thus, the
U.S.C. 2254 petition, the Magistrate
Supreme Court affirmed the Circuit
Judge in 'the federal district
recommended.
dismissal
under ' Court's decision.
AEDPA's limitations, but the district
court rejected it. It recognized that,
without tolling, petitioner'S petition
U.S. APPEALS COURT
was time barred. But it held that,
petitioner was entitled to both
Johnson v. Governor of the State of
statutory and eQuitable tolling. It
Florida, 18 Fla.L.Weekly Fed. C406
(11 th Cir 4/12/05)
.
opined .that even though the state
court rejected. his . petition' as ,
This case was brought by
untimely, that did not prevent the
Thomas Johnson and several others
peti~ion from being "properly filed"
on behalf of all ex-felon citizens of
within the meaning of section
Florida in regards to the permanent
2244(d)(2). It reasoned that because
disenfranchisement of convicted

U.S. SUPREME COURT

I.

felonS. It involved a Fourteenth
AI11endment Equal Protection Clause
challenge and a Section 2 Voting
Rights Act cballenge to Florida's
felon disenfranchisement law which
provides that
no person conl(icted '
of a felony shali be qualified to
vote or hold office until restoration
of civil rights or removal of
disability." Fla. Const. ArtiC?le VI,
Section 4 (1968).
In brief, the 11 11I Circuit held
that a state's decision to peimanently .
disenfranchise convicted felons does
not, in itself, constitute an equal
protection violation. Under the twostep test arti.culated by the Uni~
States Supreme Court in Hunter v.
Underwood, a court must first
examine
whether
racial
discrimination was a substantial or
motivating factor in a state's decision
to deny the right to vote to felons
and, if there is evidence that racial
'discrimination was a motivating
factor, whether the state can show
that the provision would have been
enacted in the absence of any racially
discriminatory motive.
Assuming without deciding
that racial animus motivated the
adoption
of
Florida's
1868
disenfranchisement law, Florida's
1968
n>en8ctment
of
its
disenfranchisement
provision
through a deliberative process
eliminated any taint from the
allegedly
discriminatory
1868
provision, so opined the 11 ill Circuit.
In . addition to their equal
protection claim, the challenge
regarding
the
felon
disenfranchisement
provision
through the Voting Rights Act, it was
held that the Act was never intended

Florida Prison Legal Perspectives
by Congress to reach felon
disenfranchisement provisions.
In its <:fined wisdom of the
policy, the II Circuit noted that
several civil rights groups argue that
felons should be enfranchised,
particularly those who have served
their sentences and presumably paid
their debt to society. Even if it was
to agree with this, the 111b Circuit
wrote, "this is a policy decision that
the United States Constitution
expressly gives to the state
governments, not the federal courts.
U.S. Const Amend. XIV, section 2."
Florida has legislatively reexamined
the provision since 1868 and'
affirmed its decision to deny felons
the right to vote. Federal courts
cannot question the wisdom of the
policy choice. stated the II til Circuit.
The district court's grant of
summary judgment in favor of the
Governor was therefore affirmed.
FLORIDA SUPREME COURT
In Re.: Amendments To The Florldo
Rules Of Criminal Procedure-,
Conform Rules To 2004 Legislallon,
30 Fla.L.Weekly $244 (Fla. 4n/05)
In 2004 legislation there
were changes made to section 27.52,
Florida Statutes, (Ch. 2004-265, sec.
9, at 959, Laws of Florida) which
provide that 'the circuit court clerks
shall use "a form developed by the
Supreme Court" to determine
indigency.
To conform to this change,
the Florida Bar's Criminal Procedure
Rules Committee filed an out-ofcycle report that proposed a new
rule, Rule 3.984, in the FIa.R.Crim.
P., entitled Affidavll of Indigenl
Sialus. Under that rule will be given
the form that was approved for use
by. the circuit court clerks and that
shall be used also by the accused.
Because of this new rule,
wording in Rule 3.11 I (bX5XC) was
amended to "require the accused to
execute an affidavit of insolvency as
required by sec. 27.52 Florida
Statutes."

The Florida Supreme Court
adopted both the new rule and the
amendment and they became
effective immediately upon the
release ofits opinion.
Garcia v. Siale, 30 Fla.L.Weekly
S263 (Fla. 4/21/05)
The Florida Supreme Court
accepted review of this case to
resolve a conflict between the
decisions in Garcia v. Slate, 854
So.2d 758 (Fla. 2d DCA 2003) and
Goodman v. Slale, 839 So.2d 902
(Fla. lit DCA 2003).
The conflicting issue was
based on when a defendant denies
knowledge of the presence of an
inegal substance, he or she
automatically places into dispute any
knowledge of the illicit nature of the
substance, which was the holding in
Goodman.
The background of Jorge
Garcia's case began when he was
pulled over in his truck and arrested
for driving while under the influence.
Subsequent to his arrest, the truck
was searched where an item was
found underneath the passenger's
seat. It was described as looking like
a white softball wrapped in black
electrical tape. Garcia 'claimed then
and throughout his entire trial that he
did not know what the item was, nor
did he know that it was in his truck.
He also claimed that his truck had
been used numerous times by other
individuals and at one point it
stolen, missing for about five days
'before he was able to recover it.
Lab tests found that the item
retrieved from the truck contained a
mixture of methamphetamines and a
cutting agent. Consequently, Garcia
was charged with trafficking in the
discovered drug. During his trial
Garcia dispuled the standard jury
instructions, maintaining his claim of
not knowing what the substance was
or that it was in his truck, and moved
for a judgment of acquittal on the
trafficking charge.
The trial court denied his
judgment of acquittal and rejected
his proposed special instruction,

was

overruling his objection regardjng
the trafllcking jury instructions.
After giving those instructions on the
charge it further instructed the jury
on the elements of the lesser included
offense of simple possession. Here,
Garcia failed to object when the trial
court failed to include the element of
"knowledge of the illicit nature of
the substance" in the lesser included
offense jury instructions.
Subsequent
jury
deliberations, Garcia was acquitted
of trafficking but found guilty of
possession, the lesser included
offense and guilty of the DUI offense
well. On appellate review, tho
Second District found that the trial
court erred in both denying Garcia's
judgment of acquittal and failing to
further instruct the jury of
"knowledge of the illicit nature of the
substance" element, i.e., the "guilty
knowledge element."
The appellate court rejected
the State's argument that section
893.101. Florida Statutes (2002),
provides that knowledge of the illicit
nature of a controlled substance is
not an element of drug, offenses, but
lack-of.knowledge is an affirmative
defense. That statute became law
after Garcia committed his offense.
It was then concluded that the
instruction given was clearly
inadequate and erroneous. However,
the error was not preserved, and tho
Second District opined that it was not
fundamenta~ thus the conflict.
The Florida Supreme Court
noted that when it read three of its
prior case decisions together
regardjng the cOnflicting issue, Stole
v. Medlin, Scott v. Stale, and Chicone
v. Siale, "guilty knowledge" is an
element of the offense of possession
and must be proven beyond a
reasonable doubt. Further, in Reed v.
StOle, 837 So.2d 366 (Fla. 2002), it
was held that the failure to give a
jury instruction on an element of a
crime is fundamental error if the
elemenl was disputed at trial. F.B. v.
SIDle, 852 So.2d 226 (Fla. 2003),
held that the insufficiency of the
evidence to prove one element of a

as

IS

Florida Prison Legal Perspectives
crime
does
not
constitute
fundamental
error where the
defendant failed to object or to move

the course of the search. the officer
lifted a mattress in Jones' bedroom.
Between the mattress 'and the
/0'; a judgment 0/ acquittal on that
boxspring a clear, plastic tackle box
ground.
'
(approx. 2 inches deep and 8 inches
Garcia did dispute the
by 10 inches square) was found. In
element of guilty laiowledge which
order to see what was in the box the
officer had to pick it up, where it was
should have determined the trial
court's requirement to give the jury
noted that the box contained the
instruction on the guilty knowledge
contraband items submitted into
element Also, Garcia did motion the
evidence.
trial court for a judgment of acquittal
In trial court. Jones entered a
plea of guilty to possession of
based on that issue. As such. it was
fuDdamentai error for the trial court methamphetamines and possession
of drug paraphernalia reserving his
to fail to give the further instruction.
right to appeal the denial of his
The First District's decision
in Goodman was approved and the
motion to suppress the seized items.
Judgment was issued and Jones was
Second District's, in that it was not
ftmdamental error, was quashed.
sentenced withholding adjudication.
The appellate court opined
that the State' failed to meet the
second of the three prongs of the
FLORIDA APPEAL COURTS
plain view doctrine found in Pagan
v.
S~ate, 830 So.2d 792, 808 (Fla.
Whalen v. State, 30 FILL.Weekly
2002).
That is, the incriminating
DS7S (2d DCA 3fl10S) ,
nature
of
the contraband· items was
The appellate· coUrt. in this
not
immediately
apparent. A tackle
case concluded in its opinion that a
box
beneath
a
mattress
alone is riot
lower court was in error to assess
sufficient
to
suggest
an
incriminating
points in a sexual offense charge for
nature. There could have been any
penetration (victim injury points)
number
of perfectly legitimate items
because the information failed to
in
the
small
box underneath Jones'
specifically allege penetration.
mattress.
Furthermore.
although the
However it further opined
officer
testified
that
the
box was,
that even if the information alleged
transparent.
he
also
stated
that in
penetration, the United States
order to identify the items inside the
Supreme Court decision in Blakely v.
box he had to pick it up.
Washington now precludes the
Over and beyond those facts
assessment of penetration points
found.
it
was undisputed that the .
when a jury does not make the
items that' the officer originally
specific finding of penetration.
.entered the home to search for, a boa~
motor and 12-gauge shotgun. could
Jones v. State, 30 Fla.L.Weekly
not have been contained in the small
0631 (2d DCA 3/4/05)
tackle box. Therefore. the picking up
Brian Edward Jones in this
of the box and examining its contents
case appealed the denial of his
~ended the search beyond the
motion to suppress illegal narcotics
scope permitted by Jones' voluntary
and narcotic paraphernalia that were
Consent Thus, Jones' judgment and
seized from his home although Jones
voluntarily agreed to the search' sentence were reversed and the case
remanded with instructions to grimt
without being issued .a warrant to do
Jones' motion to suppress the
so.
evidence seized and to vacate the
In brief, Jones allowed and
judgment
and sentence.
.
accompanied a law enforcement
officer into his home without a
Grasso v. State, 30 Fla.L.Weekly
search warrant seeking a stolen boat
0854 (4* DCA 3130/05)
motor and a 12-gauge shOtgun. In
16

In this case there was a
charge of burglary with a battery
against Nicolo J. Gian-Grasso which
he took to trial by jury. During jury
deliberations, the jury sent the judge
a note asking whether it could
convict of both trespass and battery,
which were listed individually as
lesser-included offenses, or if they
had to choose only one. The reply
was that they could only choose one
and Gasso's defense counsel agreed
with
the
Court's
reply.
Corisequently, Grasso was convicted
of the charged burglary with a
battery. Grasso subsequently filed a
timely Rule 3.850 motion cl8iming
that his counsel was ineffective for
not objecting to the above issue. The
trial court summarily denied the
motion, whereupon Grasso appealed.
In the appellate court it was
found that the trial court erred in
summarily .denying the sufficient
claim that was not refuted by the
records.
In further reviewing
Grasso's issue. the appellate court
opined that a defendant is entitled to
have a jury consider convicting Qf
the two separate component offenses
of a compound offense such as
burglary with a battery.
It was explained that
burglary with a battery is a
legislative combination of two
SepMate common ' law crimes
allowing a judgment to be entered on
both the lesser-included offenses of
trespass and battery since the
information did include the facts
necessary to support convictions for
both offenses. Bledsoe v. State, 764
So.2d 927, 929 (Fla. 2d DCA 2000).
Under the circumstances that
were Presented. the appellate court
determined that the jury should have
been permitted to convict on the two
separate component offenses.
It
opined further that counsel may have
been ineffective in failing to preserve
the issue for appellate review by
objecting to it.
Accordingly,
Grasso's case was 'reversed and
remanded for an evidentiary· hearing
for the trial court to determine
whether counsel made a strategic

Florida Prison Legal Perspectives ,
decision to waive the
conviction of both lessers.

possible

Gay v. State, 30 Fla.L.Weekly 0960
(2d DCA 4113/05)
Matthew Gay's case reflects
on resentencing by Ii substitute judge
when· the original sentencing judge is
still available.
Without a showing of
. necessity, it is error to permit
resentencing by a different judge
other than the one who heard the
evidence at trial and originally
Persaud v.
imposed sentenced.
State, 82) So.2d 411,4")4 (Fla. 2d
See:
DCA
2002);
Also
FIa.R.Crim.P.3.700(c).
The error was conceded by
the State in Gay's case and his
sentence was reversed and remanded.

•

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AVAILABLE FOR STATE AND FEDERAL
POST-CONVICTION MATIERS
• Admitted to the Florida Bar in 1973
• Over thirty years experience in the practice of criminal Law
• Providing representation in Direct Appeals, Belated Appeals, 3.850 motions, 3.800
motions, 2255 motions, State and Federal Habeas Corpus Petitions, Detainer Issues, and
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Inquiries to:

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basoc1 solely upon o.c1vortiaemento.

Be~ore

lllIlt us to oond you free in~oJ:lllAtion about our qualUico.t.1one ancl exporienco.

'7

FIQrida Prison Legal Perspectives
Res~urce Lisf
July 2005

FLORIDA
Government
Governor (Jeb Bush)
PlA5. The Capitol
Tallahassee. FL 32399·0001
850/488-4441
www.myflorida.com
Attorney General (Charlie Crist)
PlAI. The Capitol
Tallahassee, FL 32399-1050
850/487·1963
www.oag.state.fl,ys

Maintains slate birth/dealh certificates,
etc.

Parole Commission ..
2601 Blair Stone Rd., Bldg. C
Tallahassee, Fl:. 32399-2450
850/922-0000 .
www.fj!c.state.O.us
Public Service Commission
2540 Shumard Oak Blvd.
Tallahassee, FL 32399-0850
850/413-6055
www.tloridapsc.com

Departmenf ofCorrections
Secretary James V. Crosby
2601 Blair Stone Rd.
Tallahassee, FL 32399·2500
850/488·7480
www.dc.state.t1.us

Regulales in-state utilities. including
telephone services.

Department of Health
2585 Merchants Row Blvd.
Tallahassee, FL 32399
850/245-4321
www.doh.state.fl.us

Florida House of Representatives
402 S. Monroe Street
Tallahassee, FL 32399-1300
850/488·1157 (Cierk)
www.tlhouse.gov

Department of Law Enforcement
(FOLE)
PO Box 1489
Tallahassee, FL 32302-1489
850/410·7000
www.fdle.sta\e.fl.us

Florida Senate
404 S. Monroe Street
Tallahassee. FL 32399-1100
·850/487·5270 (Secretary)
www.tlsenate.gov

Department of State
PL-02, The Capitol
Tallahassee, FL 32399·0250
850/245-6500
www.dos.state.fl.us
Webslles contains all stale agencies'
rules (Florida Administrative Code) and
"Flor:lda
Administrative
Weekly"
deldlllng current agency rulemaking
l'!fo.

Office of Executive Clemency
(Parole Commission)
2601 Blair Stone Rd.
Bldg. C. Room 229
Tallahassee, FL 32399·2450
850/488·2952
Office of Vital Statistics
·11

PO Box210
Jacksonville, FL 3223 ,·0042
9041359-6900

Websiles contain contact info for a/l
slate legislators; a copy of all current
Florida laws (statules); and bills Ihal
have been inlroduced in Ihe Legislature
and their history. including In many
Instances "slaff analyses" valuable for
understanding legislative Intent.

FLORIDA
Legal Aid / Advocacy Organizations
Florida Prisoners' Legal Aid Org., Inc.
PO Box 660-387
Chuluota, FL 32766
wwW.fplao.om
fj!lp@aQJ.com
Services:
Membership-based
organization. PrOVides informalion /
advocacy to slate prisoners and their

families and advocates.
Conducts
grassroots organizing of prisoners'
families and handles Impact litigation
concerning civil righls / adminislrative
law affecting 'prisoners. their families
and children. Publishes bi-monlhly news'
journal.
"Florida
Prison
Legal
Perspectives, "

Florida Justice Institute
2870 First Union FinancialCtr.
200 S. Biscayne Blvd.
Miami, FL 33131·2310
305/358-2081
Fax: 305/358-0910
www.FloridaLawHelp.com/ .
Services: Handles civil rights litigation
concerning jail I prison conditions.
Makes referrals for damage I civil-righls
cases.
Prison advocacy. lobbying,
develops strategies for alternatives 10
incarceralion.

Florida Institutional Legal Ser., Inc.
IIIO·C NW 8th Street
.
Gainesville, FL 32601
3521955-2260
Fax: 352/955-2189
www.criminaljusticeforum.comlPrisonIssues-Files/FILS
Services: Legal assistance to Florida
slate prisoners.
Post conviction
assistance 10 three prisons only: FSP.
vel and FCI.
Impact lillgation:
conditions of confinement. civil rights,
medical. ele. Some individual services.

Families & Friends for Committed
Victims, Inc.
P.O. Box 1426
Pinellas Park, FL 33780-1426
727/545-9268 or
727/424 -249
www.abettersolutjon.om
FFCV200 l@aol.com
Organizes family members andfriends of
inmales civilly committed or detained
under Florida's Jimmy Rice ACI. Works
10 improve condllions at the Arcadia
Civil Detention Center. Publishes
newsletter. Needs members and
donations. Contactfor more info.

Florida Prison Legal Perspectives
Florida Innocence Project
Nova Southeastern Univ.
Shepard Broad Law Ctr.
3305 College Ave.
Ft. Lauderdale. FL 33314
7541262-6174
FLORIDA
Attorneys
Loren Rhoton. Attorney
Rhoton & Hayman. PA
412 E. Madison St.. Ste. 1111
Tampa. FL 33602
813/226:'3138
E-mail: motonl67@aol.com
Specializes in Florida past conviction,
direct appeals. sentence corrections, new
triaLs, federal habeas corpus, 3.850,
3,800

David W. Collins. Attorney
PO Box 541
Monticello. ,FL 32345 .
850/997-8111
Specializes in all area ofpost conviction
relief, including, appeals, 3.850, 3.800
state-federal habeos corpus, parole
hearings. clemency. etc.

CLE publications are produced by the
Florida, Bar in collaboration with
LexisNexis. These are excellent boDies
covering Florida-specific legal topics,
such as Adniinislrative Law, Appellate
Practice, Family Law, Legal Research
Legal Writing, Trial Practice, Civil Law.
Rules ofCourt. etc. To obtain more irifo
and prices for available publications in
the CLE series contact: LexisNexis,
Attn:
Order Fulfillment. 1275
Broadway, Albany, NY 12204 (ph# 800/
562-1197). Ask for Fla. 'BarCLE
Publication catalog.

FLORIDA
Otber Groups I Organizations
Citizens United for Alternatives to the
, Death Penalty
177 N. US Hwy, 1. Ste. B-297
Tequesta, FL 33469
Services:
Grassroots organIZing of
people opposed to death penalty.

Aleph Institute
9540 Collins Ave.
Surfside. FL 33154
305/ 864-5553
www.aleph-jnstitute.org
admin@aleph-instjtute.org

Daniel D. Mazar. Attorney
2153 Lee Road
Winter Park. FL 32789
1-888-645-5352 (Toll free)
407/645-5352
407/645-3224 (Fax)

Services:
Provides Jewish religious
education,
counseling,
emergency
assistance and referraLs to Jewish
prisoners and theirfamilies.

Provides representation in Direct
Appeals. Belated Appeals, 3.850
motions. 3.800 motions. State and Fed
Habeas Corpus. Detainers. and other
Post Conviciton matters. Over 30 yrs.
expo in criminal law.

Time for Freedom
Pastor Bernie DeCastro
PO Box 819
Ocala, FL 34470
352/351-1280
Email: tff@gpte.net

*The hiring of an attorney is an
important decision that should not be
based solely IIpon advertisements.
Before you decide. ask the attorney to
send you free written information about
their qualifications.

FLORIDA
BookslPublications/Joumals

Lml
Continuing Legal Education Publications
(CLE)
\

Services: Provides parent education:
self-help support: info: rejerrals,'
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
kajrosjo@aol.com

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.thepdsonconnection.com
seeacon@aol.com
Services: Provides bus transportation
and meaLs to prison visitors. ALso
pravides gifts for priso~ers' children.

Faith-based Support Group
1937 Lakeville Road
Apopka, FL 32703
Email: prett.l@netzem.com
(Little house behind the church)
Services: Monthly meetings to provide
info and supportfor grieving families 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 Pdson Focus
2940 1611I Street, Ste. B5
San Francisco, CA 94103
www.prisons.org
Quarterly news journal reports on
issues/conditions in CA SHU prisons.
, Some national info. Prisoners $4 per yr.,
all others S20. Sample copy SI.
Coalition for Prisoners Rights Newsletter
POBox 19/1
Santa Fe. NM 87504·1911
Prison-related newsletter published
monthly. Free to prisoners and their
families, all others S12 per yr.
Donations/stamps appreciated to help
with publishing/mailing.
FAMMGram
1612 K. St., NW, Ste. 1400
Washington, DC 20006
www.famm.org

Services: Provides mentoring, religiolls
ministry. fa",/I)' 'reunification support

"

Florida Prison Legal Perspectives
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. 23 M St..81b Floor
New York, NY 10010
www.fonunesocietv.org .
Quarterly magazine of the Fortune
society carrying wide. variety of articles
and info about prisons. prisoners.
criminal justice. rehabilitation. etc. Free
to prisoners.

Hepatitis C Awareness News
PO Box 41803
Eugene. OR 97404
Bi-monthly newsletter published by
Hepatitis C Prison Coalition with· news
and info about Hep C and /fIJIIHCV.
Free upon request, but stamp donations
needed and welcomed

Justice Denied Magazine
PO Box 881
Coquille, OR 97423
. Quarterly magazine dedicated to.
expOsing wrongful conviction cases.
Prisoners $18 per 6 issues. $30 for
others

Justice Matters
PO Box 40085
Portland. OR 97240-0085
Quarterly newsleller published by the
Western Prison Project. Prisoners $7
per year. $15 all others. Good resource
info.

Prison Legal News
2400 NW 80111 St.
Seattle. WA 98117
Web site: www.prisonlegalnews.org
Monthly journal'carrles summaries and
analysis of recent prisoner rights cases.
self-help litigation articles. prisonrelated news. Prisoners $ I 8 per year,
$25 others. Sample copy $1. .

20

Nolo News
50 Parker St.
Berkeley, CA 94710
Quarterly self-help newsleller covers
(non-prison) civil litigation issues. Twoyear subscription $12.

NATIONAL
Book Projects
The following sources provide free
books to prisoners. However, these
projects rely on volunteers and donations
to operate. Whenever possible, prisoners
should help these. projects . when
requesting free books by sending a few
stamps for postage.
.Requests for
specific 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
c/o Groundwork Books
0323 Student Ctr.
La Jolla, CA 92037
Books Through Bars
4722 Baltimore Ave.
Philadelphia, PA 19143-3503
Books Through Bars
c/o Experienced Books
2150 S; Hig~land Dr.
Salt Lake City, UT 84106-2807
Prison Book Program
c/o Lucy Parsons Ctr. & Bookstore
110 Arlington St.
Boston, MA 02116
Prison Book Program
c/o The Readers Comer
31 Montford Ave.
Asheville, NC 28801-2529
(Southeastern US only)
Prison Book Project
PO Box 396
Amherst. MA 0 I004-0396
Women's Prison Book Project
c/o Arise Bookstore
2441 Lyndale Ave., S.
Minneapolis, MN 55405-3335
NATIONAL
Resource Lists

"ACLU Prisoner Assistance Directory",
(Florida prisoners see Volume 4 of
"Prisoners and the Law" In major
institutions' law library - conta.ins above
directory,)
"Resource Directory for Prisoners"
availablefor 4 stampsfrom:
Naljor Prison Dharma Service
PO Box 628
Mt. Shasta, CA 96067
www.naljomrisondharmaservice.org
(Directory can be printed off website for
free.)
"National Prisoner Resource List"
availablefree from:
Prison Book
110 Arlington St.
Boston, MA 02116
"Resource and Organizing Guide"
availablefrom:
'
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"
.
availablefree from:
National Institute ofCorreetions
Information Center
1860 Industrial Circle, Ste. A
Longmont, CO 8050 I
NATIONAL
Groups/Organizations
The Sentencing Project
918 F. St., NW, Ste. 501
Washington, DC 20004
202/628-0871
Services: Provides technical assistance
to develop alternative sentencing
•programs and conducts research on
criminal justice issues.
No direct
services to prisoners.

Stop Prisoner Rape
3325 Wilshire Blvd., Ste. 340
Los Angeles, CA 90048
www,spr,org
SPR works to end sexual violence.
against prisoners. Counseling resource
guides for prisoners and released rape
victims and advocates are available for,'

Florida Prison Legal Perspectives
AL, AZ. CA. CO. FL, GA. IL. LA. OK.
OR, MI. MS, NC. NY. T)(, WI or
nationwide. Specify state with request.
Amnesty International, USA
322 Eighth Ave.
New York. NY 1000 I
www.amnesty.org

Services: Penpal services for death row
prisoners.

AI is an independent. international
organization that works to protect
human rights.

•

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

Death Row Support Project
PO Box 600, Dept. P
Liberty Mills, IN 46946

for

Services: Organizes prisoners and their
families to work for criminal justice
reform. Many state chapters.
National Death Row Assistance
Network of CURE
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 self
advocates.
NATIONAL
Services
Let My Fingers Do Your Typing
PO Box 4178-FPLP
Winter Park. FL 32793-4178

Services: Professional typing services
by mail. .
Computer. typewriter.
transcription. black/color printing and
photocopying.
Free price list upon
request. Special rates for prisoners.
Services:
Offers discount magazine
subscriptions. Send SI or 3-fcs for
catalog.
WriteAPrisoner.com
lIO Box 10-FPLP
Edgewater, FL 32132
Services: Internet penpal services. Write
for info.

Center for Constitutional Rights
666 Broadway
New York, NY 10012
www.jailhouselaw.org

CCR is one of the organizations that
cooperates to produce the "Jailhouse
Lawyer's Manual." Copies of the
manual are provided to prisoners at no
charge. The JLM can also be
downloaded and printed from the above
website 'at no cost.
.
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 of info
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.

LEARN TO
PROTECT
YOUR
RIGHTS
YOU HAVE A RIGHT TO
• Adequate medical care
• Protection from assault
• Humane living conditions
• Safety from officer abuse
Learn how to defend your
basic human rights with
the comprehensive litigation guide, Protecting Your
Health and safety, written
specifically for inmates who
are unable to receive help
from a lawyer.
.
Written by Robert E. Toone
A Project of the Southern
Poverty Law Center

LegallLegislative

COST $10
(includes shipping,thandling)
www.lawcrawler.com
Searches government and other sites for
law.

ORDER A COPY
Send a check or money
orderto

www.nolo.com
Provides some general legal info and
sells books on wide variety of legal
topics usejUlto the public.

Protecting Your Heath
and Safety
Southern Poverty Law Center
P.O. Box 548
Montgomery, AL 36101-0548

www.findlaw.com
Good site for searching out federal and
state law.

Besure to Include your name,
Identification number (if any), and

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

mall/ng address./f using a credit
card. please InclUde the type of
card (VISA or Mastercard), card
number, and exp!ratlon date. Upon
request. prison law libraries will be
sent a copy at no cost. WE DO NOT
ACCEPT ORDERS BY TELEPHONE

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

This book does not deal with legal
defense against criminal chlItges or challenges to corMetionS that are on appeal.
Edition last reVIsed In 2002.

www.legal.fim.edu
Posts the "Government in the Sunshine
Manual" (Public meetings and public
records manual).

21

Florida Prison Legal Perspectives
www.manjndale.com
Provides in/a on lawyers nationwide,
including contact in/a, area 0/ practice,
how long, etc.

www,thomas.!oc.gov
Source/orfederal legislative material,

www,uscouns·goy
Links and information about U.S.
Supreme and otherfederal courts.

www.call ,USCOUIU.goy
Eleventh
website,

Circuit

0/

Court

Appeal

Florida
Supreme
www,f1courts,org

Court:

District Courts of Appeal:
First DCA: www,ldca,org
Sea>nd DCA: www.2dca,org
Third DCA: www.3dca,flcourts.org
Fourth DCA: wwwAdca.org
Fifth DCA: www5dca.org
Circuit Courts: .
I" Circuit: www,firstjudicialcircuit.org
211<I Circuit: www.2ndcircuitJeon.f1.us
31'1I Circuit: www.jud3,f1coYr!S.org
4IhCircuit:www.coj.netIDepartmentslFou
~+ Judicial+Circuit+Courtldefault.htm
5 Circuit
~lliud5.flcourts,orgicourts/index,htm

www.f1nd,uscouns·goy

U.S. District Court, Northern District 0/
Florida website.

www,fJmd,usC9UIU.gqv

i

U.s. District Court, Middle District
Florida website.

0/

www,f1sd.yscourts.gov

. U.S. District Court, Southern District 0/
Florida website.

6 Circuit: www,jud6,org
7th Circuit: www.circyit7,org
8th Circuit: www,circuit8,org
91h Circuit: www,ninja9.org
10th Circuit: www.judlO.org
IIIh Circuit: http://judll.flcourts.org.
1211I Circuit: http://I2circuitstate.f1,us
13th Circuit: http://judI3.flcourts.org .
14lh Circuit: for information call 850747-5327
15thCircuit:www.co.palmbeach.tl.uslcad

minlh

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

www.f1senare,goy
www.t1hoyse.gov
Florida Legislature's webs/les. Provides
directory of state legislators; complete
Florida statutes (laws); Senate and
House bills, bill histories and analyses.

www,flcourts.org
Provides directory and links to Florida
courts' websites.

www.FCLA.e4u
Florida State University law library
website,

www.law.mjamj,edulljbrary
University ofMiami law library website,

www.!aw,ufJ,edu
University
website.

0/

Florida

law

library

www·stetson,e4u1deparnnents!ljbraryOa.
W
Stetson University law library website,

·n

16 Circuit: www,judI6,flcour!S,om
171h Circuit: www,17th.flcourls.org
181h Circuit: www.jud18,flcourts,org
19lh Circuit: www,circuitl9.org
201h Circuit: www.ca.cjis20.org
County Clerks of Court:
Alachua:www,clerkalachyafl.orglclerkli
ndex,html
Baker: htlp:/lbakercounlytl.orglclerk
Bay: www.baycoclerk.com
Bradford: www.bradfordclerk.com
Brevard: www.clerk.co.brevard.tl.us
Broward: www.browardclerk.org
Calhoun: www.calhounclerk.com
Charlotte:www.co.charlotte.fJ.us/cirkinfo
Lc.h=.rk default.htm
Citrus: www.clerk.citrus.f1.us
Clay: http://clerk,co.c1ay.f1,us
Collier: www.clerk.colljer.fl.ys
Coliunbia: www.columbiaclerk.com
Dade
:www.mjamidadeclerk.com/dadecoc
Desoto: www.desotoclerk.com
Dixie: www.dixieclerk.com
Duval: www.duval.f1.us.landata.com
Escambia: www.c1erk.co.escambja.fl.us
Flagler: www.myflaglercounty.com
Franklin: www.franklinclerk.com
Gadsden: www.clerk.co.gadsden.fl.us
Gilchrist: www.gilchristclerk.com
Glades: www.gladesclerk.com
Gulf: www.gulfclerk.com
Hamilton: www,myhamiltoncountv,org

Hardee: www.hardeeclerk.com
Hendry: www.hendryclerk,org
Hernando: www.clerk.co.hernando.fl.us
Highlands:www.clerk.co.highlands.fl.us/
jndex new,html
Hillsborough: www.hisclerk.com
Holmes: www.hohnesclerk.com
Indian River: www.clerk.indianriver,org
Jackson: www.jacksonclerk.com
Jefferson: www.jeffersonclerk.com
Lafayette: www.lafayetteclerk.com.
Lake: www.clerk.lake.tl.us
Lee: www.leeclerk.org
Leon: www.c1erk.leon.fl.us
Levy: www.levyclerk.com
Liberty: www.libertyclerk.com
Madison: www.madisonclerk.com
Manatee: www.manateeclerk.com
Marion: www.marioncountyclerk.org
Martin:http://clerkweb,martin,fl.us/Clerk
~

Monroe: www.monroe.f1.us.landala.com
Nassau:www.nassauclerk.com/clerklcler
k majn,htm
O"k;doosa: www.c1erkofcourts.cc
Okeechobee:www.clerk.co.okeechobeeJ

~

Orange: hnp://orangeclerk.onetgov,net
Osceola: www.osceolaclerk.com
Palm Beach: www.pbcountyclerk.com
Pasco: www.pascoclerk.com
Pinellas: www,pinellasclerk.org
Polk: www.polkcountyclerk.net
Putnam: www.putnam-tl.com/clk
St Johns: www.co.st-johns.fl.uslConstOfficerslClerk-of-Court/index,htm
St. Lucie: www.slcclerkofcourt.com
Santa Rosa: www.santarosaclerk.com
Sarasota: www.sarasotaclerk.com
Seminole: www,seminoleclerk.org
Sumter:http://home.earthlink.net/%7Esu
~

Suwannee: www.suwcJerk.org
Taylor: www.taylorclerk.com
Union: www.unionclerk.com
Volusia: www.clerk.orglindex.html
Wakulla: www.wakullaclerk.com
Walton: www.co.walton.fl.us/c1erk
Washington: www.washingtonclerk.com
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:
FPLP
Ann: Resource List
PO Box 660-387
Chuluota, FL 32766
fplp@aol.com

•

Florida Prison Legal Perspectiv~

,

Florida Prisoners' Legal Aid Organization Inc.

BECOME A MEMBER
YES! I wish to become a member of Florida
Prisoners' Legal Aid Organization, Inc.
3. Your Name and Address (PLEASE PRINT)

1. Please Check ./ One:

o

Membership Renewal

o

New Membership

_ _ _ _ _ _ _ _ _ _ _ _DC#
Name

_

AgencylLibnuyllnstitution IOrg!

2. Select ./ Category

CJ

Address

$15 FamilylAdvocatelIndividual

..

CJ $10 Prisoner
City

State

Zip

CJ $30 AttomeysIProfessionals
I

Email Address and lor Phone Number

CJ $60 Gov't AgenciesILibrarieslOrgsJetc.

czr Please make !'II checks or ~oney orders payable to: Florida ~oners' Legal Aid Organization. Inc. Please complete the above form and send it
with the indicated membership dues or subscription amount to: Florida Prisotren' Legal Aid Organization Inc.• P.O: Box 660-387. CladuolD, FL
32766. For family members or loved ones of Florida prisoners who are unable to afford the basic membership dues, any contn"bution is acceptable
for membership. New, unused , US postage stamps are acceptable from prisoners for membership dues. Memberships run one year.

MEMBERSHIP RENEWAL
Please check the mailing label on this issue of FPLP to
determine when you need to renew so you don't miss an
issue. On the top line of the mailing label will be a date. such
as ***Nov 07***. That indicates the month and year that your
FPLAO membership dues are paid up to. Please renew your
membership by completing the above form and mailing it
and the appropriate dues amount to the address given a
month or two before the date on the mailing label so that the
membership rolls and mailing list can be updated within
plenty of time. Thanksl

SUTTERBY'S LEGAL RESEARCH •

NON-LAWYER DOCUMENT PREPARATION
#204, 145 S. Or1ando Ave., Suite 8
Maitland, FL 32751
Phone: (407) 324-3m Fax: (40n 895-0255
E-mail: slm_sutterby@yahoo.com
*Poskoavlctloa Paralegal. I work for sevcral law finns specializing in appcll1s and
postconvietion relicf.
·1 prepiII'C Icgal memoranda for BItOmcys. corporations. and

March on Washington

individuals.

Submitted by Richard Geffken

I

also

prepiII'C

posttonvietion

motions.

commutation or sentcnce, restoration of rights, iIIId ilSSistanc:e

On August 13, 29°5, fifty-two groups with speakerS and
musicians will march on Washington, D.C., to protest
America's role as the world's biggest jailer. The theme is:
"We have ~ad laws, not a nation of bad people. To imprison
3 to 10 times more people per capita than any other
democracy, it has corrupted the law. This approach is not
protecting the public and has removed the legitimacy. to
govern. For more info contact: '{i'.\v{..}QlJrne4.f:.QrJUS!tC€'0r'J
or ".dl\~~"rns(d'aQ!..forn. To join the march contact: Roberta
Franklin, ~43 Ajax St. Montgomery, AL 36108, ph. #
334122~670 or 334/834-9592.

10 resolvc

detainer issues.

If you nced help with linding the right iItlorncy for your

Q

issues. lind would Iikc to havc a review of your case to find
possiblc issues. If you need legal rcseareh prepared II1ld
oIrcady know

)"OUf

issues. If you need a petition. apptiClllion.

or motion typed and liled. I taa auist...

2J

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VOLUME 11

ISSUE 3

MAY/JUN 2005

NON-PROFIT

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