FLORIDA PRISON LEGAL

ers----- ectives
ISSN# 1091·8094

VOLUME 12 ISSUE 3

FPC Escaped Abolishment,
What Happened and Why?
by Sherri Johnson

B

Oth last year and this year bills were introduced in the
Florida Legislature that would have abolished the
Florida Parole Commission (FPC) and distributed its work
out to volunteer parole panels, the governor's office, the
courts and other agencies. In both instances the bills
(H.B. 1899 and H.B. 5017) failed to make it through the
legislative process and become law, despite appearing to
have wide support among lawmakers. Why? What
happened? Can the Commission (or will it even need to) .
continue dodging legislative efforts to abolish it? This
article addresses those questions and suggests some
answers.
FPC-Caugbt in tbe Middle
(
Its been said that once a state agency is created it
is almost impossible to get rid of it After a bureaucracy
becomes entrenched, much of its work is focused on
perpetuating itself. For its employees it's a matter of
survival. For politicians, a redundant or obsolete agency
can become a bargaining chip to be threatened or
supporte¢ whatever the case may be, to obtain other
political goals. The FPC appears to have found itself in
such a position recently.
It would be reasonable to think that a legislative'
push to abolish the Parole Commission would have
something to do with parole. However, that isn'.t the case.

MAY/JUNE 2006

The move by lawmakers to posture like they want to
completely reorganize parole has to do with clemency, or
more specifically, with restoration of civil rights to felons
once they have completed their sentences.
A little known fact is that the Parole Commission
actually devotes very little of its time to parole, only about
10 percent, according to the commission's latest Fiscal
Year 2004-05 Annual Report.
The bulk of the
commission's work, approximately one-half (and over a
third of its 148 employees), is devoted to conducting
clemency investigations as part of the restoration of civil
rights process. Florida is one of a few remaining stales
that do not automatically restore a person's civil rights,
including the right to vote, once they have been convicted
of a felony offense and served their sentence. Ir.stead, in
Florida, such pers~ns must apply to the Board of
Executive Clemency, consisting of the governor and
Cabinet, for restoration of their civil rights. A process that
And the Parole
could take many, many years.
Commission is the sticking point in the process. They do
the investigations on clemency applications, which takes
up to two years to do, according to commission data.
Restoration of civil rights 'has become a hot issue.
Even before the 2000 presidential election, where it
became apparent that felon voting disenfranchisement,
especially among minorities-primarily blacks, was used
to block votes, some legal'scholars had already opined that
felon voting disenfranchisement laws may be
unconstitutional. Studies
show that most such laws'
.
including Florida's, were enacted after the war betWeen
the states as a means of depriving blacks of the right to

FAMILI£S ADVOCATES PRISONERS

ON

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THE
INSIDE

FPC Rulemaking Under Fire
FPC, Rules. Rulemaking, Parole Hearings
Notable Cases
Post Conviction Comer•..:
OPPAGA Report 06-15(FPC)
Critique ofOPPAGA.Report 06·15
From the·Editor
:
FBI- Raids Prison Canteen Vender's Offices

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Florida Prison Legal Perspectives

FLORIDA PRISON LEGAL PERSPECTDVES
P.O. BOX 1511
CHRISTMAS, FLORIDA 32709

.

Publishing Division of:
FLORIDA PRISONERS' LEGAL AID ORGANIZATION, INC.

A SOl (c) (3) Non-profit Organization
E-mail: folD@!!QI com
WebsilC: www.[olllO org

FPLAO DIRECTORS
Teresa Bums.Posey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D.Rhoton, Esq.

.Publisher
Editor
Research

FPLPSTAFF
Teresa Burns.Posey
Bob Posey
Sherri Johnson
Anthony Stuart

I

~I

Florida Prisoners' Legal Aid Organization, Inc.• P.O. Box 1511.
Christmas, FL 32709, ·publlshes FLORIDA PRISON LEGAL
PERSPECTIVES (FPLP) up to six times a year. FPLP is a non-profit
publication focusing on the Florida prison and criminal justice
systems. FPLP provides a vehicle for news. information. and
resources affecting prisoners, their families. friends. loved ones, and
the general public of Florida. Reduction of crime and recidivism,
maintenance of family lies, civil rights, improving conditions of
confinement, promoting skilled court access for prisoners, and
promoting accountability of prison officials are all issues FPLP is
designed to address. FPLP's non-attorney volunteer staff cannot
respond to requests for legal advice. Due to the volume of mail that is
received and volunteer staff limitations, all correspondence that is
received cannot be responded to, but all mail will receive individual
attention. Permission is granted to reprint ml\terial appearing in FPLP
that does not indicate It Is copyrighted provided that FPLP and any
indicated aUthor are Identified in the reprint and a copy of the
publication in which the material is published is provided to the
FPLP publisher. This publication is not meant to be a substitute for
legal or other professional advice. The material in FPLP should not
be relied upon as authoritative and may Not contain sufficient
information to deal with a legal problem. FPLP is automatically sent
to all members of FPLAO, Inc. as a membership benefit.
MembershIp dues for FPLAO, Inc., operate yearly and are $ f0 for
prisoners. $IS for family members and other private individuals. $30
for attorneys, and S60 for "Dencies, libraries, and institutions.
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vote. Yet, while most states that had such laws have
abandoned them in favor of automatic restoration of
rights, Florida and a handful of other stales have nol
Civil rights groups have been challenging Florida's
disenfranchisement laws in court, with some success, and
pushing lawmakers to go with automatic rights restoration,
with less success.
In 2004 black lawmakers successfully had the
courts hold that the Florida Department of Corrections
must, by law, assist felons who, have completed .their
sentences. with completing the clemency application
paperwork to regain the right to vote. Florida Caucus of
Black State Legislators, Inc. v. Crosby, 877 So.2d 861
(Fla. 1st DCA 2004). As a result, the Parole Commission
was flooded with applications and a' huge backlog was
created.
In Dec. 2004 the clemency board, in an effort to
reduce the impact qf that court decision, amended
clemency rules so that most nonviolent felons are eligible
for restoration of civil rights· without a hearing, if they
remain arrest-free for five years and pay any victim
restitution. And under the amendment, all felons are
eligible for rights restoration without a hearing if they
remain arrest-free for 15 years and pay any victim
restitution, although· if an objection is entered a hearing
may still be necessary.
At that same time' Gov. Bush proposed that the
Legislature, during its 2005 regular Spring session,
increase the Parole Commission's yearly budget, then $9.4
million, by $1.2 million to allow 40 more employees to be
hired to work on the clemency application backlog. That
started a move by some lawmakers to reorganize the
whole process, starting by reorganizing the Parole
Commission, a key cog in the restoration of rights process.
Shortly into the 2005 legislative session, the
House budget committee voted not only to not give the
Parole Commission extra funding but to not give it any
funds at all to operate. Relying on recent audits of the
commission that found it to be inefficient and poorly
operated, some House representatives called for
abolishment of the commission. In the Senate, however,
the budget committee was proposing to give the
commission its normal funding and about half of the
increase asked for by Gov. Bush. When it was noted that
laws would have to be changed to abolish the commission,
House representatives introduced a bill, H.B. 1899, to do
just that, which was then unanimously approved by the
full House. When sent to the Senate, however, the bill
wasn't approved, Instead, House and Senate budget
writers struck a deal to keep the commission as it is for
.another year, with no increase in its budget, while the
issue received further study. (Previously reported on in
FPLP, Vol. II, . Iss. 2, pgs. 18-19, "Florida Parole
Commission Escapes Abolishment, At Least For Another
Year.")

Florida Prison Legal Perspectives
Stacking the Deck
.
While giving the FPC its full budget. the General
Appropriations Act of 2005-2006 also directed the
Legislature's Office of Program Policy Analysis and
Government Accountabili~ (OPPAGA) to study, FPC
operations before the 2006 session and report its findings
to the Chairs of the House Appropriations Committee and
Senate Ways and Means Committee on or before January
1.2006.
'
OPPAGA didn't meet the Jan. I deadline, but. it
did complete a report on the FPC and released it on Feb.
24. just days before the 2006 regular, session started on
Mar. 6.
Unlike past OPPAGA studies of the FPC, which
generally had been critical of the agency, this new study
was favorable, finding that overall the commission is
doing a good job and opining that abolishment of the ,FPC.
as proposed in H.B. 1899, would result in higher costs to
the State and taxpayers. While presenting itself as an
unbiased analysis of the FPC, anything more than a
cursory review of the OPPAGA repoi1 tends to support
that it was politically influenced, designed to give
legislative supporters of the' FPC. something to use to
oppose any further efforts to abolish the commission.
(That report, "Parole Commission Operations Consistent
with Its Mission; Clemency Workload Needs to Be
Addressed," OPPAGA Report No. 06-15, Feb. 2006, is
reprinted in its entirety in this issue of FPLP, along with a
detailed critique of the report prepared by FPLAO.)
Holding it Close to the Vest
Going into the 2006 session only one bill had
been prefiled concerning the FPC, S.B. 1460, which was
nothing but a "shell" bill stating that the Legislature
"intends to revise laws concerning parole". Such bills are
like a place-holder, there to be added to tater, if felt
necessary. S.B. 1460 was filed by Sen. Stephen Wise (RJacksonville), an acknowledge supporter of the
commission.
PrMession contact with Sen. Wise as to his
position on the FPC resulted in him stating only that he
thought the commission could be "streamlined". House
representatives who had supported 'H.B. 1899 last year,
and who had been very vocal then with criticism of the'
agency, were less forthcoming this yem-. Rep. Mitch
Needelman's office claimed no new legislation would be
introduced this. year to abolish the FPC, while Rep. Joe
Negron, the chair of the House budget committee, and
Rep. Fred Brummer, who last year called the FPC a
"nightmare" that needs to go away, had no pre-session
comments about the FPC.
Meanwhile, Gov. Bush had again included in his
requested state' budget for the Legislature a provision
giving the FPC $1.2 million more to hire additional staff
to reduce the clemency investigation backlog. Bush has

been a stanch opponent to automatic restoration of civil
rights in Florida.
'
2006 Session
The first indication that the FPC abolishment
issue was still on the table came Mar. 30' when different
versions of a state appropriations bill cleared House and
Senate committees.
Like last year, the, House bill
provided no funding for the commission, while the Senate
version ptoposed funding them.
FPC Chairwoman Monica David appeared before
the HoUse' budget committee to try to change' its mind by
waving and 'citing to the OPPAGA report (No. 06-15),
claiming it will cost more, to get rid of the commission.
The committee didn't buy it, and on Mar. 31 H.B. 5017
was filed.
That bil~ introduced by the House Fiscal Council
and Rep. Gus Barreiro (R-Miami), contained provisions
deleting obsolete statutes related to the dissolved Florida
Corrections Commission, removing the DOC's probation
and restitution centers authority, reorganizing county-nm
bootcamps, revising the Prison Per-Diem Workgroup, and
reintroduced the' same provisions from last year's H.B.
1899 to abolish the FPC.. On Apr. 6 H.B. 5017 was voted
on and passed· by the House 85 to 30, then sent to the
Senate for approval.
In the Senate H.B. 5017wasfiled on Apr. t9 to
, the Ways and Means' Committee, then immediately
withdrawn and sent to the floor, where an amendment was
adopted, voted on and passed 39 to O. That amendment,
however, was nothing but a "shell", in effect deleting all'
the language in the House version of the bil~ and placing
the entire bill and all provisions in it up for negotiation.
The HoUse refused to concur with such
amendment and the bill was sent to a joint budget
conference committee for negotiations.
, The joint conference committee wprked out the
differences by agreeing to keep the FPC and removing
some of the' other provisions from the bill. Another
.amendment to the bill was then filed (Conference
Committee Report), which did not contain any provisions
. concerning the Parole Commission abolishment, and
which passed unanimously. in both the House and Senate
and was sent to the governor. Once again, the Legislature
had failed to abolish the FPC.
What's the Real Deal?
It would seem that with
majority of House
representatives determined to get rid 'of the FPC that they
would have at least made some gain toward that goal after
two yearS of introducing legislation. But, that's not the
case. The FPC still exists, still has its full budget, and if
one believes those lawmakers who supported that
legislation, it is still a "nightmare", "incompetent and
inefficient", "duplicative of other agencies", "obsolete",
. and "a dying agency in search of a mission, serving no

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Florida Prison Legal Perspectives
purpose other than the continuation of unjustifiable
bureaucracy".
What's strange though is that those
representatives who introduced the FPC abolishment
legislation and who've done all the tough talking the past
two years are Republicans.
And it's .their fellow
Republicans in the Senate who have blocked the
legislation. And both years it came down to striking a
"deal" between the House and Senate that changes
nothing. What kind of "deal" is that?
One might be tempted to think that the real deal
isn't about abolishing the Parole Commission, but that it
might be about protecting the Republican agenda of not
allowing automatic restoration of civil rights. After all is
said and done, Florida remains one of the few holdout
states not to allow automatic restoration of rights.
And, no doubt, the FPC, with its existence having
been threatened, is totally focused on getting its clemency
backJog wrapped up as qtiickJy and efficiently as possible.
Which may have been the purpose in threatening them all
along.
What is clear is that none of it has been about
correcting any perceived defects in the parole process.
That, if it happens, will apparently have to come from
somewhere besides the Legislature. _

.FPC Rulemaking Under Fire
ntil recently, the Florida Parole Commission (FPC)
U
. had not attempted t9 change or update any of its rules
contained in Chapter 23 of the Florida Administrative
Code (F.A.C.) since 1994. When Florida Prisoners' Legal
Aid Organization began its Parole Project in 2003 to
abolish, or at least significantly change, the FPC. a review
of those rules showed them to be seriously out of date.
Further investigation discov.ered that the FPC is ~equired
to every two years. by law. review and revise its
administrative rules to ensure that they are correct and
comply with statutory requirements. and file a certified
,report verifying such review with the Legislature. The
FPC has never complied with that law. §120,74. Fla. Stat.
For over a year FPLAO had surrogates (with no
obvious connection to the organization) file public record
requests to obtain further information about the FPC's outof-date rules. procedure directives. and other documented
policies. Inevitably, suspicions were aroused at the FPC
that "someone". for sOple reason, was examining every
aspect of the Commission's rules and policies. That
prompted the FPC to move.
On May 9 and 10. 2005. for the first time in over
10 years. the FPC held a public workshop at its
Tallahassee headquarters to discuss whether the agency
nq=ded to change any of its formal administrative rules.
The only notice given of that public workshop was
published in the Florida Administrative WeekJy. Vol. 31,
.No. 17. pg. 1603 on Apr. 29. 2005.

4/

On August 18. 2005. the FPC held another public
meeting in Tallahassee at which the 3 commissioners. as
required by Rule 23-15.011(3), F.A.C.• voted on whether
to engage in ·rulemaking procedureS to adopt the proposed
rule changes suggested as a result of the May 9-10 public
workshop. The commissioners voted to initiate the
proposed rulemaking. The only notice of the Aug. 18.
2005, public meeting at which the proposed rulemaking
was voted on was published in the Florida Administrative
Weekly, Vol. 31, No. 31. pg. 2763, on Aug. 5. 2005.
On January 13, 2006, the FPC proceeded to
initiate the required §120.54. Fla. Stat.. rulemaking
process by publishing the required (first) Notice of
Proposed Rule Development. That notice stated that the
FPC proposed to make changes to its rules in §23-21.
F.A.C.,concerning "definitions," "requirements for
Commission meetings". "consideration for grants of
parole", and "parole violation proceedings". Notice of
that rule development was only published in the Florida
Administrative Weekly, Vol. 32. No.2. pg. 77, on Jan. 13,
2006.
Approximately one month 'later, the FPC
proceeded with the rulemaking by publishing a Notice of
Proposed Ruleniaking in the 'Florida Administrative
Weekly. Vol. 32. No.6. pgs. 563-591, on Feb. 10,2006.
That (second and) final notice (before the proposed rules
could be filed for adoption with the Department ofState)
set out the full text of the numerous changes that the FPC
intended to .make to its rules governing parole.. The
purpose of the proposed rule changes. as stated in that
notice: "[I]s to clarify Commission practices at meetings.
the interviewing' of parole-eligible inmates. factors
considered at arriving at presumptive and effective parole
release dates. and actions to be taken upon violation of
parole."
.
Although such rule changes would directly and
substantially affect parole-eligible prisoners. it was not
until Feb. 23. 2006. almost two weeks after the final
rulemaking notice had been publishec;f in the F.A.W.•
before such prisoners were even. notified that rulemaking
was occurring. That· was the date the DePartment of
Corrections, which had been contacted by the FPC on Feb.
21, posted the FPC's Notice of Proposed Rulemaking at
all state prisons whereparole-eligible prisoners could see
it. That was tl\e first and only notice that parole-eligible
prisoners received informing them that the FPC was even
considering or engaged in changing rules that would
substantially affect them.
.
While the FPC was dutifully publishing notice of
each stage of the rules' development in the Florida
Administrative WeekJy, apparently thinking it was giving
notice to all substantially-affected persons of each stage of
the process by doing so. notice' was not being given to
those who would be most affected by the proposed rulesparole-eligible prisoners. And that was a problem.

Florida Prison Legal Perspectives
Florida prisoners, including parole-eligible
prisoners, have not had. access to the Florida
Administrative Weekly, -which is the official publication
giving notice. of all state agencies' public meetings and
ndemaking activities, since 1996. That was the year the
FDOC stopped subscribing to the F.A.W. for all prison
law libraries.
Realizing, however, that all persons
substantially affected by an agency's rulemaking have a
Due Process and statutory right to notice and an
opportunity to pa~icipate in such rulemaking, since 1996
the FDOC posts notice of all its rulernaking activities in
the prison law libraries and on bulletin boards at each
institution where prisoners can view them.
The FPC, which has not engaged in any
significant rulemaking since 1994 until _this latest, was
apparently unaware that prisoners no longer have access to
the F.A.W.s. Florida Prisoners' -Legal Aid Organization
(FPLAO) staff, however, was aware of it-in fact, they
counted on it.
On Feb. 27 FPLAO Director Bob Posey, a paroleeligible prisoner (and editor of this publication), wrote to
the FPC objecting to the failure of the Commission to
provide notice of each stage of its recent rulemaking
activities to parole-eligible prisoners, and for only
providing them late notice of the final stage of that process
when the time had almost expired for prisoners to submit
comments or objections to the intended rulemakings.
Only 21 days is allowing once the Notice of Proposed
Rulemaking is published to challenge or comment on or
object to proposed rules. §§120.54(3), 120.56(2), Fla.
Stat. Additionally, prisoners are generally limited to
submitting written statements to rulernaking activities,
§120.81(3), Fla. Stat.,' and may only challenge rules or
rulemaking with a court-filed declaratory judgment action
pursuant to §120.73 and Chapter 86, Fla. Stat. See, e.g.,
Quigley v. Dept. of Co"ections, 745 So.2d 1029, 1031
(Fla. III DCA 1999)..
•
The FPC responded to Posey's objection on Mar.
3, stating that the Commission does not have a rule
requiring that notice be posted. in institutions
simultaneously with F.A.W. publication, however, in this
situation the FPC will start the 21 day comment period
from the day the (Proposed Rulemaking) notice was
posted in the institutions. Only Posey was informed of
that extension of time, and he did not feel th8t would
resolve the problem: He also noted th8t the FPC's
response did not address the failure to give parole-eligible
prisoners notice of, or any opportunity to participate in,
the earlier stages ofthe rulemaking.
Posey, therefore, on Mar. 3, filed a formal Petition
to Initiate Rule Adoption (pursuant to §120.54(7), as
authorized by §120.81(3)(a), Fla. Stat.) with the
Commission. The petition requested that a rule be
adopted, as required by §120.54(3)(a)3., mandating that
parole-eligible prisoners be given proper notice- of all
stages of any rulernaJdng conducted by the FPC by

posting such notices at all state and privately-operated
prisons in the law libraries and on the bulletin boards,
since prisoners. do not have access to the F.A.W. The
petition specifically requested that such proposed rule
require that such notice be given not only of the actUal
Proposed Rule Development and Propa;ed Rulemaking
notices, but also of any public workshops or meetings
where proposed rules are discussed, developed, or voted
on by the Commission. '.
On March 29, 2006, at a public meeting (that,
ironically, parole-eligible prisoners were not provided
notice ot) the three-member·Commission voted on and
approved, in part, and denied, in part, Posey's petition.
The Commission's order granted the request to adopt a
rule requiring that' notice of FPC rule workshops, rule
development, rulernaking, and -changes during rulemaking
be posted at the institutions in accordance with
§120.54(3Xa)3. But, the Commission denied the request
that such rule also require posting of notices of
Commission public meetings. The reason for that denial:
"[T]he Commission holds regular agendaed meetings in
accordance with Section 947.06, Florida Statutes, several
times each month to discuss individual- cases and business
meetings several times each year to discuss Commission
business. We find noticing of these routine meetings
would be unduly burdensome and the general inmate
population is not affected by the individual cases
discussed in these meetings." Such reasoning may open a
Pandora's box for the Commission.
The Commission really had no choice but to grant
the .request· to adopt a rule requiring posting of actual
rulemaking notices pursuant to §120.54(3Xa)3., Fla. Stat.
The FPC can either provide notice in that manner and/or,
according to that same statute, be required to mail such
notices to -each individual parole-eJigible prisoner who
requests same. See also, Rule 28-103.001, F.A.C.• "Any
person may file a written request with the agency to- be
given advance notice of agency pi'oceedings to adopt,
amend, or repeal a rule, as provided in Section
120.54(3)(a)3., F.S. The written request may specifY that
advance notice is requested of all agency rulemaking
proceedings, or of .only':' those agency rulemaking
proceedings involving specific subjects."
T.he Commission's "reasons" for not including in
such intended rule a requirement that notices of FPC
public' meetings also be posted at institUtions is
disingenuous, at best. The "reasons" do not address the
fact that the Commission, by its own rule, must vote on
whether to adopt specific rules at a public meeting. Such
vote is therefore an essential part of the rulemaking
procedure, and where such vote would concern J11les that
would substantially affect parole-eligible prisoners, they,
arguably, would have a Due Process right to notice of and
an opportunity to participate in such decision-making (at
least by submission of written comments), just as they do
in' other stages of rulemaking.
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Florida Prison Legal Perspectives
However, the Commission. avoided that aspect,
and simply claimed that its public meetings (only) concern
"individual cases" (ostensibly, parole hearings) that do not
affect "the gener.al inmate population" or are
"Commission business" meetings. Neither of which must
be noticed to parole-eligible prisoners, according to the
FPC's order on Posey's petition.
What's interesting with that position is that the
Commission does not even give' notice to individual
parole-eligible prisoners of when or where their
"individual case" is going to be discussed or decided at a
public meeting, even though such prisoners are
substantially .affected by the decisions made at such
meetings.
And all parole-eligible prisoners would,
arguably, have a substantial interest in and be substantially
affected by most, if not all, business, especially any
parole-related business, conducted by the Parole
Commission at any publicly-held "business" meeting.
y~, the C0ll1!"ission, in effect, said it will not give such
prisoners notice of such meetings, in part, because it
would be "'unduly burdensome."
Bob Posey, unconcerned about FPC burdens
disagreed. One day after the FPC issued its order on hi~
petition, he filed suit challenging the FPC's rulemaking to
amend its rules in §23-21, F.A.C. Posey claims the
proposed rules are invalid because the Commission failed
to give parole-eligible prisoners prior notice of each stage
of the rulemaking process. .The suit alleges that the FPC's
notice failure makes the entire rulemaking an invalid
exercise of delegated legislative authority pursuant to
§120.52(8)(a), Fla'-Stat., and as such, the court is asked to
.
declare the rulemaking null and void.
The suit also particularly asks the court to declare
that the FPC must give parole-eligIble prisoners notice of
all public workshops, public meetings and public hearings
at which any rule or rulemaking that would substantially
affect parole-eligible prisoners is discussed or voted on.
Posey aSserts a right to such notice as encompassed in
Article §9, Florida Constitution (Due Process Clause),
and ArtIcle I, §24(b), Florida Constitution, and §286.011,
Fla...Stat. (constitutional and statutory Sunshine
provIsIons). Posey v. Florida Parole Commission, Case
No. 2006-CA-840 (Second Jud. Cir. Ct. filed 3/30/06).
If the above suit is successful, Posey has stated
that he wi!1 likely seek to have the court invalidate all FPC
public. meetings or hearings at which his particular case
was dIscussed or voted on, none of which he has received
date and time notice of from the FPC. And he will seek
invalidation of all business actions taken at all FPC public
business meetings that concerned parole, parole eligibility
or parole operations, which substantially affects, or
affc:cted him, and which were held without providing him
notIce or an opportunity to participate in same.
On May 5, 2006, the FPC published in the
F.A..W., and posted in prison law libraries, a Notice of
rOPOSed Rule Development initiating the rulemaking

!'

I

6

process to adopt a rule at §23-1S.012, F.A.C., concerning
posting of rulemaking notices in the prisons as Posey, in
part, had requested in his rule adoption petition.
FPLP will provide updates of the rulemaking and
lawsuit discussed in this article in future issues. _

-Parole Commission.Exploiting Problems With
.Rul~s,. Rulema~g and
Parole Hearings
by Sherri Johnson
The Florida Parole Commission (FPC) is facing some
potentially serious' challenges in relation to its rules,
rulemaking, and parole hearings that are intended to result
in changes at the agency.
. On Aug. I, 2005, a lawsuit was filed against FPC
Chairwoman Monica David by Erica Flowers (of Orlando)
alleging that the FPC's' rules at Chapter 23, Florida
Administrative Code (FAC), had not been updated in over
ten years and for that time provided, in part, false and
misleading information to the public on how and where to
attend· FPC public meetings, or obtain public records from
the agency, and about how the agency is organized. That
suit also alleges that Monica David is legally responsible
and accountable for not updating the rules during her
tenure as chairwoman, and, in fact, that David
intentionally did .not update the rules to mislead and
. obstruct the public's access to FPC public meetings (such
as parole hearings) and public records. If the court finds
in Flower's favor in that case, it' could result in criminal
charges against David., since intentional obstruction of
access to public meetings or records is a criminal offense.
•That case was previously reported ip FPLP, Vol. II,
Iss. 5 and 6, Pgs. 12-13, and is still pending inthe Second
Judicial Circuit Court. Flowers v. David, Case No. 2005CA-2194.
Mo~ica David responded to that suit, not by
addressmg the allegations, but by claiming that it is really
a rule challenge, seeking to compel the FPC to update its
rules,and therefore should have been brought
administratively, not in a court action since administrative
re~~ies had. not been exhausted. Flowers replied that her
SUIt IS not a rule challenge; that it seeks a declaration that .
Davi~ v!olated the state's Sunshine laws, and in any event,
even If It was a rule challenge. Florida law provides that
ad~inistrative remedies do not have to be exhausted
before challenging an agency's proposed rules. The
parties' are now waiting for a decision by the court on
Flower's claims.
. In an apparent attempt to lessen any impact of that .
SUIt, on Aug. 13, 2006, the FPC at a public meeting voted
to update its rules. A formal Notice of Proposed Rule
Development was published Jan. 13, followed by a

Florida Prison Legal Perspectives
published Notice of Proposed Rulemaking on Feb. 10.
They noticed the FPC's intent to amend its rules to, in
part, update the rules concerning FPC public meetings,
public records, and how the agency is organized and
operates.
o' Before
those proposed rules could be filed for
adoption, Florida Prisoners' Legal Aid Organization, Inc;
(FPLAO) challenged them .as an invalid exercise of
delegated legislative authority in the Division of
Administrative Hearings. That chaUenge stopped the
rules' adoption'while that action was pending. FPLAO v.
FPC, nOAH Case No. 06-0748RP (filed 3/1/06).
After fast and furious litigation, the FPC 'convinced
the DOAH administrative judge to dismi~s FPLAO's rule
challenge (dismissal became effective Apr. 17), but to no
.avail. On Mar. 30 Bob Posey had filed a challenge against
the same proposed rules in the circuit court, again tying .
them up. (See article in this issue "FPC Rulemaking
Under Fire.")
While that was happening, other actions w~e filed
against the commission challenging the parole granting
and revocation processes.
In Feb. '06, Deborah Cantrell, a freelance writer, also
from Orlando, filed suit against the FPC claiming that the
commission is, and has been, violating Florida's
constitutional and statutory Sunshine laws by not noticing
nor allowing the public access to attend a crucial stage of
the parole determination process termed "parole
interviews." The FPC makes parole granting decisions in
a tw<rstage process. First, parole-eligible prisoners are
interviewed by Department of Corrections' personnel and
a parole examiner, who also analyze facts and records and
formulate and make recommendations to the threemember parole commission as to what action. should be
taken to grant or deny parole. Such parole interview
meetings are not open to the public. The commission,
which never sees nor talks to parole-eligible prisoners,
later in a public meeting. approves or denies, with
modifications, the recommendations· fonnulated at .the
closed door parole interview meetings.
Cantrell's suit claims that where FDOC
representatives and parole hearing examiners meet,
discuss, and formulate recommendations for the parole
commission on what parole actions should be taken, even
where such recommendations are not binding on the
commission, that parole interview meetings are part of the
parole decision making process, and therefore must be
open to the public. The suit notes that § 947.06, fourth
sentence, also mandates'that: "All matters relating to the
granting, denying, or revoking of parole shall be decided
in a meeting at which the public shall have a right to be
present." Florida case law supports Cantrell's claims.
The FPC responded to Cantrell's lawsuit claiming that
parole interview meetings involve only parole hearing
examiners and prisoners, are for fact-finding purposes
only, and that the resultant recommendations are not

o

0

0

0

"decisions" because they are not binding on the
commIssIon.
The response continues to claim that
Sunshine Laws and
§ 947.06. Florida Statutes, only
applies to meetings of two or more parole commissioners.
and does not apply to parole interview meetings.
Cantrell's reply to that response pointS out that FPC
rules and procedure directives provide that FDOC
rep~esentatives and hearing examiners act 3S a de facto
"committee" in' the parole interview process, and that §
947.172(2) deems parole interview recommendations to
be "decisions" to be' based upon "competent evidence."
Further, the reply points out, that under Florida law,
government boards or commissions cannot evade
compliance with open public meeting laws by appointing
staff or a committee to conduct meetirigs in secret and
make recommendations as .to what action the board or
commission should formally take later in a public
meeting. Under Florida law. the public has right to
attend all stages of decision making by a commission,
even when it involves appointed staff or committee
meetings, ifthey make recommendations.
Cantrell's suit asks the court to declare that the FPC
has violated Sunshine Laws by not publicly noticing and
opening parole.interview meetings to the public and press
and seeks an injunction ordering the FPC to make parole
interview meetings aCce$.sible to the public-with written
minutes being taken of the meetings. A decision is
expected by the court in the next few months. Cantrell v.
FPC, Case No. 2006-CA-0429 (Second Judicial Circuit
Court). (For more details on this case. see FPLP Vol. 12.
Iss. I. pgs. 16-18.)
As the commission was reeling, trying to adopt rules
and respond to the various petitions and complaints as
above, it was hit with another lawsuit. During March '06.
Erica Flowers filed a second suit against the commission.
11tat suit alleges that the FPC is. and has been, violating
the state's open public meeting Sunshine Laws by not.
noticing nor allowing the public to attend final parole
revocation hearings. (See the abovo.referenced issue of
FPLP for more details on this case.)
.
The FPC responded to that suit (similar to how it had
to Cantrell's suit) claiming that final revocation hearings.
usually conducted by a single hearing officer, are not
subject to open public meeting laws because the hearings
are not conducted by two or more actual cOmmissioners
and the reCommendations to revoke parole or not resulting
from such hearings are not binding on the "final"
decisions made by the commission at a later public
meeting.
Flowers has rePlied that Florida law holds that even a ,
single commissioner or appointed staff member-conducted
hearing is subject to open public meeting laws, if it
involves decision .making. And since 2003. Florida (and
one federal) courts have consistently held that the findings
of fact and recommendations not to revoke, based on
competent, substantial evidence, made by FPC-appointed
0

a

,

/7

Florida Prison Legal Perspectives
revocation hearing officers at final reVocation hearings,
are binding on the commission's later "final" decisions at
a public meeting. Thus, Flowers ,replied, final parole
revocation hearing officers are involved in the revocation
decision making process. She asks the court to declare
that and issue an injunction ordering the FPC to notice and
open such hearings to the public. A decision is also
expected in this case in the next few months. Flowers v.
FPC, Case No. 2006-CA-I064 (Second Judicial Circuit
Court.)
Neither Flowers nor Cantrell are asking the court to
declare that past parole determination or revocation
hearings/decisions, are invalid, if the court finds in their
favor. Although the law holds that such is the case where
Sunshine Law violations are found. If, as expected, the
court does declare that open public meeting laws were
violated, parole-eligible prisoners will be able to follow up
these cases with their own actions seeking to invalidate
parole or revocation decisions made in their individual
situations. And the commission would, where possible,
have to hold entirely new hearings, on top of having to
open up parole interviews and final revocation hearings to
the public. The result would likely be a collapse of the
current parole system in such a circumstance. And out of
the rubble, hopefully, arise a new system shorn of the
secrecy and disadvantages to paroJ~igible prisoners, and
parolees facing revocation, that exists under the current
system..
[Note: Erica Flowers and Deborah'Cantrell are members
of FPLAO and both are volunteers involved in the
organization's Parole Project.] _

Head ofFDLE Forced
to Resign

T

didn't back off releasing information about Tunnell's
son's wrong doing.
Guy Tunnell was also criticized over his handling of
an FDLE investigation into the death of l4-year-old'
Martin Lee Anderson at a Bay County boot camp in
January. Tunnell, who was the sheriff of Bay County
before being picked by Bush to head the FDLE in 2003,
and who started the Bay Co. boot, camp, reportedly was
sending emails to the current Bay Co. sheritT, Frank
McKeithen, venting about everything from a search for
scapegoats in Anderson's·death to the lack of state money
for boot camps. The FDLE was removed from the boot
camp investigation because ofTunnell's emails.
Then when two state legislators asked to see the
videotape of Anderson being beaten by guards at the boot
camp, Tunnell refused, saying, it "ain't gonna happen."
Once the FDLE was removed from the case, the videotape
.was released and aired nationwide.
The final straw for Tunnell came from remarks he
made, at a state agency head meeting about a protest rally
concerning Anderson's death.
Reports say Tunnell
compared the Rev. Jesse Jackson to outlaw Jesse James
and U.S. Senator Barack Ohama, D-IL, to Osarna bin
Laden. Jackson and the Rev. AI Sharpton attended to
protesf at the Capitol. Tunnell.later claimed his comments
were a joke, but it didn't save hisjob. _

.FDOC Secretary Orders
Random Drug.Testing
of Employees-Reestablishment
of K-9 Interdiction Program
Ou would.think that in ail agency like the Department
Y
of Corrections that has custody of more than 86,000
prisoners, most of whom have drug abuse histories, and

he head of the Florida Department of Law
Enforcemen~ Guy Tunnell, was forced to resign April
over 25,000 employees', any of whom could potentially
20, 2006, after a series ofquestionable incidents.
make abovl>-blackmarket money to smuggle drugs into the
In early April, it was reported that Guy Tunnell
prisons, that employees would be subject to random drug
complained in e-mails, to Gov. Jeb Bush's office about
testing. After all, many employers in less tempting jobs
how the new prison chief, James McDonough, had
randomly test their employees, just to be on the safe side.
described the actions of Tunnell's son, a former prison
However, until recently, FDOC employees didn't have to
employee. Brad Tunnell resigned from the FDOC in
worry about being randomly tested for illegal drug use.
March after McDonough' demoted him for fighting at a
prison softball tournament in Jacksonville last year. This
On May 8, 2006, FDOC Secretary James
at a time that the FDLE had been, for over a year,
McDonough, who took over the helm of department in
February when James Crosby resigned after a barrage of
conducting an investigation into wrong doing within the
. scandals involving misconduct by high-ranking employees
FDOC.
and prison guards, ~nt out a memo to all FDOC staff
In one email to Bush's office, Guy Tunnell hinted that
informing them they ,will be subject to random drug tests.
he might disclose an alleged threat that former FDOC
McDonough, the former head of drug control policy
secretary James Crosby made to his son in order to halt
for Gov. JOO Bush, said he doesn't think, there is a
the FDLE investigation a few months ago.
The
implication was that the FDLE investigation of the FDOC
widespread drug 'problem among FDOC employees and
might be compromised, if the new secretary, McDonough, " figures only a few will test positive, but said it's all part of

81

Florida Prison Legal Perspectives
his effort to boost confidence in the agency. McDonough
"What we plan is to have two K-9 ~nits in each of the
emphasized. however, that the random testing policy . four (FDOC) regions around the state because these dogs
won't be punitive for those who test positive. Theywill
are competitive and work better in .pairs," Dean said.
"Also, it's a lot easier when you are going through large
undergo treatment, and be moved out of duty that could be
dangerous. But, after an employee goes through treatment
areas, like dormitories, because these dogs can only work
and returns to work, if he were to test positive again, he'd
so long in a day and then they get tired of it and want to
likely be fired, said McDonough.
do something else."
The testing, which will cost about $200,000 a year,
.
On May 10" a K-9 team worked inside some South
will screen for marijuana, cocaine, opiates, ampheta!1line,
Florida prisons, and the dogs alerted on the bunk areas' of
methamphetamine, and other drugs.
.
four prisoners. Three of the prisoners agreed to be tested
The biggest union representing prison guards, the
for drug us~ and tested positive and were placed into
Florida Police Benevolent Association, supports the new
confinement.. The fourth prisoner refused to give a urine
sample and was confined and disciplined for refusing.
testing policy. Previously, the FPBA has vociferously
been against random testing of i~ members, but has
"The goal is to deter ininates from using drugs," Dean
shifted position now in the face of the numerous scandals
said. "Not knowing when or where the dogs will be and
that have roiled the FDOC for .the past year. Among those
then having discipline for testing positive or not being
scandals was one involving several prison guards
willing to be tested should help that."
allegedly involved in a steroids trafficking and distribution
Prisoners won't be the only ones to have cause for
ring. So far, at least nine people have been charged in
concern.
When the K-9 program o~ted before,
connection with that investigation.
prisoners' visitors were a favorite target of the interdiction
Matters weren't helped when a prison guard, who
teams. On weekends, when visitors are allowed to visit
worked at Lawtey, Correctional Institution, Marcus Henry,
prisoners, the K-9 units would troll visitor parking lots
allegedly attacked a pharmacist in Starke, Florida, in
with the, dogs. If a visitor's car was alerted on, the teams,
February. Allegedly, when Henry jumped over a counter
often backed up by local police, would try to intimidate
the car's owner into allowing the car to be searched. If
in a Winn Dixie pharmacy and was caught trying to steal
pills, he attacked the pharmacist with a knife and cut his
anything was found in the car, or if the owner refused to
allow a search, future visiting· privileges were often
throat. Police, who later arrested Henry, say he admitted
being willing to do whatever it took to get his hands on
terminated.
drugs, like Oxycontin, or the money to buy them with.
The FDOCalso has announced that it will bring back
[Sources: ~t.. Petersburg Times; Gainesville Sun,. 5/1 0/06]
drug-sniffing dogs and handlers to conduct random
searches at Florida's prisons beginning July). The K-9
FPLAO Sponsors Meeting
drug interdiction program was abolished three years ago
to Review Issues Affecting
under'former FDOC Secretary James Crosby.
Prisoners' Families
Prison officials now claim the K-9 program's demise
carne after one of the dogs alerted on a car in the Union
On June 25, 2006, Florida Prisoners' Legal Aid
County High School parking lot indicating the preSence of
Organization sponsored a meeting between a group of
marijuana. The FDOC's K-9 unit was at the school as part
prisoners' family members and staff from the
of an agreement with other law enforcement agencies with
Legislature's
Office of Program Policy Analysis and
interdiction programs. The problem started when it was
Government Accountability (OPPAGA) to discuss issues
discovered who had driven the car to the school, it was the
and problem areas in FDOC operations that negatively
son of Allen Clarke, one of Crosby's closest friends in the
affect families.
.
FDOC and a regional director in the department.
The meeting, which was well-attended, was held at the
Local police decided not to file charges against
Orlando, downtown Orange County Public Library, from
Clarke's son because only a small amount of marijuana
I;30 pm till 4:30 pm., and was to educate th~ OPPAGA
was found inside the car. Within days, however, the head
employees on problems faced by prisoners' families. The
topics discussed included, but were not limited to: family
of that K-9 unit, Major Kevin Dean, who retired from the
visitation problems; FOOC viewing families as a source
department three years ago as a lieutenant, got a heated
of revenue (prices in inmate canteens, service fees on
call from ~Iarke and then was told a few weeks later that
money.sent to inmates, phone rates, inmate medical cothe K-9 program was being .disbanded.
Dean was
payments); FDOC mail restrictions and limitations; and
subsequently transferred to a prison twice as far from his
lack of an established, noticed complaint procedure for
home and assigned to the night shift. .He retired a few .
families and others who must deal with the prison system:
months later after doing 20 years in the prison system.
OPPAGA will be preparing a report to the Legislature
Secretary McDonough has now rehired Dean and
. on its findings from this review. FPLP will advise when
promoted him, placing him in charge of rt>eStablishing the
, that report is available.
K-9 program.

•

9

Florida

priSo~ Legal Perspectives

ThefoJIowing are .rummuries afrecent .rtate andfederal cases that may be usefulro or have a .rignij;canr impact on Florida prisoners.
Readers should always read the full opinion as published in t~e Florida Law Weekly (Fla. L. Weekly); Florida Law Weekly Federal
(Fla. l. Weekly Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Fe~leral Reporter 3d (F.3d); or the
Federal Supplement 2d (F.Supp..ld). since these summaries arefor gener~1 injormation only
.

US SUPREME COURT
Day
v.
McDonough.
19
Fla.L.Weekly Fed. S153' (S.Ct.
4I2S/06)
Patrick Day's case presented
the Supreme Court with the question
of whether, a federal court lacks
authority, on its own initiative, to
disqliss a habeas corpus petition as
untimely, once the State has
answered the petition without
contesting its timeliness.
It was held that· although
district courts are under no obligation,
they are permitted to consider, sua
sponte, the timeliness of a state
prisoner's habeas petition. It was·
further stressed that a district court is
not required to' double-check the
State's math. Also, "[d]istrict judges
have no obligation to act as counsel
or paralegal to pro se litigants,"
Pliler v. Ford, 542 U.S. 22S, 231
(2004), by the same token, they.
surely have no obligation to assist
attorneys representing the State.
It was.concluded however, if
a judge has detected a clear
computation error, there are no Rules,
Statutes, or constitutional provisions
that commands that judge to suppress
that knowledge.

FLORIDA SUPREME COURT
State v. Dickey, 31 Fla.L.Weekly
S234 (Fla. 4/20/06) .
Herbert
Dickey's
case
presented a question to the Florida
Supreme
Court
of
whether
allegations of affirmative misadvice
by tri,al counsel on the sentenceenhancing consequences of a
defendant's plea for future criminal
10

I

behavior in an otherwise facially
sufficient, motion are cognizable as
an ineffective assistance of counsel
claim.
The question was answered
in the negative, and the court held
that wrong advice about the
consequences for a future crime that
has not yet been committed cannot
constitute ineffective assistance of
counsel.
The First District's decision
in Dickey's case, 30 Fla.L.Weekly
0443 (Fla. lSI DCA 2/15/05)(where
it was decided that such claim would
constitute an ineffective assistance of
counsel claim), was therefore
quashed.

.

DISTRICT
APPEAL

COURTS

OF

Tolbert v. State, 31 Fla.L.Weekly
0432 (Fla. Slit DCA 2/1 0/06)
Kenneth Tolbert presented
an issue that involved the
conjunction "and/or" being used
between the defendants' names
within a jury's instructions.
It was noted that numerous
courts have consistently agreed that
the use of "and/or" .between the
names of co-defendants in jury
instructions is fundamental error.
That general rule is premised on the
rationale that· use of such verbiage
misleads the jury into believing that
the conviction of defendant may be
based solely on the conduct of a codefendant Thus, the purpose for
such rule is to prevent one individual
from being improperly convicted for
the criminal conduct ofanother.
In Tolbert's case however,
Tolbert was convicted, where his co-,

defendant' was acquitted of all
charges. Therefore, the appellate
court opined that if the purpose for
the rule [explarned above] is not
served in a particular case, the rule
may be inapplicable. In other words,
it was noted that most of the
appellate court's prior decisions
concerning this issue has not
mentioned the fact that the codefendants were also convicted. It
was reasoned that perhaps such
absence' of factual information in,
those prior cases could be attributed
to the procedural course followed by
co-defendants in. their own filings of
appeals.
Nevertheless, it was
discerned that each case involved
convictions of the co-defendants that
did file appeals regarding the
relevant issue, which likewise were
reversed based on the same
instructional error.
The appellate court in
Tolbert's ease found that it had never
been presented with a case where the
rule was applied despite acquittal of
the co-defendant. As a result, it was
concluded that because Tolbert's c0defendant was' acquitted, the
fundamental instructional· error rule
would not apply to his case. The
jury could not have been misled into
believing
that . Tolbert
was
responsible for the conduct of a c0defendant that was found not guilty
of any wrong doing.
Accordingly,
Tolbert's
convictions were affirmed.
Spera v. State, 31 Fla.L.Weekly
DS75 (Fla. 41b DCA2I22/06)
Theodore Spera presented a
summary denial of his Rule 3.850
, motion to the Fourth District Court
of Appeal that has caused that

Florida Prison Legal Penpectives
appellate court to take a second iook
at their decision in Frazier v. State,
912 So.2d 54 (Fla. 4th DCA 2005).
In Frazier, the Fourth
District concluded that Nelson v.
State, 875 So.2d 579 (Fla. 2004),
required the trial court to, sua sponte,
grant leave to the defendant to re-file
the motion if it does not contain all
ofthe n~safy allegations;
In S~'s case. Spera
asserted in his Ride 3.850 motion
that his trial counsel failed to call
witnesses in his defense or to present
Spera failed .to
a case-in-chief.
identify any of the witnesses in his
defense or to confirm that· the
. witnesses were available to testify at
the time of trial. Additionally, Spera
failed to describe what defense his
trial counsel should have put forth.
Further, Spera had argued· that his
counsel failed to adequately discuss
the case with him prior to trial. In
the latter claim, Spera gave· no
explanation as to how that prejudiced
his case. Therefore, the trial court
had denied Spera's Rule 3.850
motion as substantively insufficient,
in a detailed order which did not
provide leave to amend, contrary to
the Fourth District's Frazier decision.
In re-evaluating its decision
in Frazier, the Fourth District noted
that a review of Nelson reflected that
the Florida· 'Supreme Court· was
recognizing that when the movant
has failed to allege whether the
missing witnesses were available to
testify at tria~ a period of time to
allow for an amendment should be
granted. However, it found that the
Nelson opinion does not read as
exteriding such relief from an
essentially technical omission to the
point where a movant who wholly
fails to present sufficient facts as to
any aspect of a claim of prejudice
should, automatically,. be granted
leave to amend the motion.
Therefore. after further .
. consideration of the Frazier decision,
the Fourth District found that it
misinterpreted
Nelson
as
encompassing
the
extended
application they mandated in Frazier.

But see, Keevis v. State, 908 So.2d
552 (Fla. 2d DCA 200S)(broadly
applying Nelson to encompass any
omission in pleading). As a result,
the Fourth District concluded that if
the Florida Supreme Court intended
to announce a requirement that when
any post-conviction motion fails to
meet any pleading requirement for
post-conviction relief, an order
denying relief must deny relief with
leave to amend, it would certainly
have stated such a requirement more
.
explicitly.
The Fourth District affirmed
the trial court's denial of Spera's
motion and receded from Frazier to
the extent that· it recognized a per se
requirement that trial· courts must
deny relief with leave to amend
whenever the pleading is deficient by
omission and ~e omitted claims go
beyond a simple technical failure. It
was further recognized tl\at its
opinion was in conflict with the
Second District's decision in Keevis.

Miller v. State, 31 Fla.L.Weekiy
D682 (Fla. 5th DCA 3/3/06)
Richard Lynn Stearns Miller
presented an issue of whether it was
a conflict of interest to have an
attorney represent him during his
trial whom he had filed a federal
civil action against.
Miller had· filednlll11erOuS
motions to discharge a variety of
defense counsels that the trial court
represent
him.
appointed
to
Apparently fed up with Miller's
continued complaints and arguments
regarding counsels appointed, the
trial court denied· discharge of the
final counsel it had appointed. In
doing so, the trial court had held a
Nelson hearing and it was
determined that that counsel was in
fact an effective counsel for Miller.
On appeal, after noting the
numerous actions filed by Miller and
counsels that Miller had gone
through.
the . appellate court
determined that discharging the last
appointed counsel would not have
been appropriate. It was opined that
if there was any conflict between the

attorney and Miller, it was conflict
that ·was created entirely by Miller
himself.
Apparently it was found that
the "lawsuit" against the appointed
counsel was no more than a claim of
ineffective assistance of counsel
dressed up in civil law clothing, and
the trial court appropriately found
that the counsel was effective.
Furthermore, the appellate
court opined: . "The filing of the
complaint in federal court created no
more of a conflict than the
unsuccessful assertion by Mr. Miller
[during trial proceedings] of
ineffective assistance of counsel. A
criminal defendant is entitled
absolutely to representation by
'reasonable effective counsel.' This
does not mean perfect counsel. More·
importantly from the perspective of
this case, it does not mean that the
defendant [Miller] gets to shop for
counsel by using the commencement
of a civil lawsuit as a shopping
basket."
Accordingly, the trial court's
action of continuing the trial with the
appointed counsel in question was
affirmed.

Robinson v. State, 31 Fla.L.Weekly
D686 (Fla. Sib DCA 3/3/06)
Robert A. Robinson had
sought to invoke the Fifth District
Court of Appeal's jurisdiction' by
virtue of the all writs provision found
in Article V, Secdon 3(b)(7), of the
Florida Constitution, by· filing a
"Writ ·of Habeas Corpus Under
Jurisdictional Defect Act." (The
appellate court noted under note I of
this case that Article V, Section 3(b),
of the Florida Constitution, related
solely to the jurisdiction of the
Florida Supreme Court.
Thus,
presumably, Robinson's intent was
to invoke the Fifth District's atl writs
jurisdiction pursuant to Article V,
Section 4(b)(3).)
Nevertheless, the appellate.
court's review of the case revealed
that Robinson's petition was merely
an attempt to "bypass the trial court
and raise - post-conviction claims

In

Florida Prison Legal Penpectives
directly in the appellate court." See:
Maddox v. State, 813 So.2d 138 (Fla.
5th DCA 20(2) (~ismissing' petition
to invoke all writs jurisdiction where
grounds raised should have been,
brought on direct appeal or in a prior
motion for post-conviction reliet). It
was found that as in Maddox, it was
the same in Robinson's allegations
on his petition.
The appellate court further
noted that the tw~year limitation
period for filing a Rule 3.850 motion
in Robinson's case had expired, and
it opined as such, that it appeared
Robinson was utilizing the all writs
argument in an attempt to circumvent
'the
rule's
limitation
period.
Therefore, Robinson's petition was
dismissed.

[Note:· See also, Tedder v. FPC, 842
So.2d 1022 (Fla. I" DCA 2003);
Mabrey v. FPC, 858 So.2d 1176,
1183 (Fla.2d DCA 2003); Me"i/l v.
Crosby, 893 So.2d 598 (Fla. 1Sf DCA
2005); and Collins v. Hendrickson,
371 F.Supp.2d 1326 (M.D. Fla.
200S~itor].

Marganet v. State, 31 FIa.L.Weekly
0950 (Fla. 5th DCA 3/31106)"
Hugo A. Marganet's case
involved a search and seizure issue
where Marganet's girlfrien~ Wilma
Luz Pinero (Pinero), gave consent to
authorities to search items belonging
to Marganet. ,
In relevant part, Pinero had
led authorities to a hotel room she
was sharing with Marganet,
consenting to search of the room.
Pinero pointed out luggage items that
Richardson v. Florida Parole
Commission, 31 Fla.L.Weekly 0865
belonged to her and then pointed out
(Fla. I" DCA 3123/06)
and consented search of luggage
belongfng toMarganet.
James Eugene Richardson
Inside Marganet's suitcase,
sought review of a lower court's
which authorities had opened, Pinero
denial in his challenge against the
pOinted to a shaving kit wliich she
Florida Parole Commission, which
informed the authorities she believed
had revoked his conditional release.
The lower court had denied
Marganet
kept
drugs
in.
Consequently, drugs, cocaine and
Richardson any relief despite the
heroin, were found in the shaving kit
hearing examiner's findings that
that Pinero had given consent to be
Richardson was not guilty of the
searched.
Marganet was then
alleged conditional release violations.
the
appellate
court
opined
arrested
and
charged
with possession
Therefore,
that the lower' court had departed
of heroin with intent to sell or deliver
and possession of cocaine.
from essential requirements of law
where it was apparent from the
At trial, Marganet sought to
record that the' Commission had
suppress the contraband found,
acted impermissibly in disregarding
arguing that there had been no valid
the examiner's findings.
consent given to search his
belongings. The motion was denied
The lower court failed to
follow correct law where it limited
with the trial court opining that
Pinero had apparent authority to
its' consi~eration to the sufficiency
consent to the search of the items.
of, the . evidence to support the
The leading, case bearing on
Commission's action, rather than
inquiring as to whether the hearing
the issue of third-party consent to
search is United States v. Matlock,
examiner's contrary findings were
supported by competent, substantial
415 U.S. 164 (1974), which involved
evidence.
the issue of "actual authority" to
Richardson's petition was . consent to a search, and· it was held
granted, the lower court's denial
that "permission to search [can be] ,
order was quashed, and the cause
obtained from a third party who
was remanded with instructions.
possessed common authority over or
other sufficient relationship to the

12.

I

premises or effects sought to be
inspected"
On appeal, it was found that
it was undisputed Pinero had actual
authority to consent to a search ofthe
hotel room because she and'
Marganet had shared use and joint
access to or control over the shared
area. However, it was opined that
this was not dispositive of Pinero's
right to consent to a sellrch of
Marganet's suitcase and shaving kit,
which she plainly told the authorities
belonged to Marganet.and was not
hers. See: United States v. Ruiz, 428
F.3d 877 (911I Cir. 2005) (authority to
consent to a search of property do~
not necessarily translate into
authority
to search
specific
containers).
Absent evidence that Pinero
had mutual use of Marganet's
suitcase and shaving kit, or even a
right to·access to those items, it was
opined that the trja) court erred in
.finding that Pinero had the right to
consent to a search of Marganet's
property.
"
The trial court's denial of
Marganet's motion. to suppress the
evidence found was reversed and the
, case was remanded.

Stevens v. State, 3IFla.L.Weekly
D1039'(FIa. 3d OCA41l2l06) .
Joseph
Stevef1S'
case
presented a question of, whether a
trial court ~ in limiting voir dire
on the defense ofnecessity. '
Stevens had been charged
with carrying a concealed firearm
and unlawful possession of a firearm
by a convicted felon.
Stevens'
defense was that his life had been
threatened and he armed himself for
selfdefense.
Pre-trial, the lower court
granted State's motion in limine to
prevent defense from discussing the
defense of necessity during, voir dire,
although, the defense of necessity
instructions was given to the jury. at
the conclusion of Stevens' trial.
On appeal, it was opined that
the lower court abused its discretion
in depriving Stevens' of the

Florida Prison Legal Penpeetives
opportunity to discuss, or question
the jury about. the defense of
necessity during· voir dire. See:
Lavado v. State, 492 So.2d 1322 (Fla.
1986); Ingrassia v. State, 902 So.2d
357 (Fla. 4111 DCA 2005) (the court
may not preclude a party from
inquiry into bias bearing on a matter
that is at the heart of the defendant's
case).
Accordingly, the judgment
and sentence imposed on Stevens
were reversed and his case remanded ,
for a new trial.

Petty v. State, 31 FIa.L.Weekly
01075 (Fla. III DCA 4/13/06)
David Petty.had filed a Rule
3.800(a) motion in the lower court,
which denied the motion and further
included language barring Petty from .
future pro se filings.
On appeal, the appellate
court affirmed the denial of the
motion, however, it was opined that
the lower court erred to sanction
Petty without providing him notice
and an opportunity to respond. IIi the
context of pro se criminal defendants,
the Florida Supreme Court has held
that before the lower court can
sanction a defendant by imposing a
bar to future pro se filings, a
defendant must be given notice and
the opportunity to respond. See:
Slate v. Spencer, 751 So.2d 47, 48-49
(Fla. 1999).
Accord'ingly, that part of the
lower court's denial order was
reversed and the cause was remanded
for further consideration consistent
with the opinion given.
Gillam
v.
McDonough,
31
FIa.L.Weekly 0 I 079 (Fla. 151 DCA
4/18/06)
Michael Gillam appealed a
lower court's denial of his motion to
remove a' lien imposed upon his
prison account for court costs
relating to a writ .of mandamuS
petition.
On appeal, it was found that
ihe lower court had incorrectly·
concluded that Gillam's petition did
not constitute a collateral criminal

proceeding. Therefore, the appellate
cOurt reversed the lower court's
denial and remanded with directions
for the removal of the lien or direct
reimbursement of any" funds that.
have been withdrawn.

Leveille v. State, 31 Fla.L.Weekly
01103 (Fla. 4lb DCA 4/19/06)
Robert LeVeille appealed his
convictions of two counts of child
abuse and three counts of committing
unnatural and lascivious acts. He
argued that the lower cOurt had erred
in assessing 120 sexual contact
points on his criminal .punishment
scoresheet, because he was acquitted
of the greater charge involving
sexual contact
Leveille was originally
charged with multiple counts of child
abuse and lewd or lascivious battery
for contact ~ith a thirteen-year-old
girl. He \yas found guilty, however,
of the hisser included offense of
committing an unnatural and
lascivious act with another person, a
misdemeanor, p'ursuant to Section
800.02, Florida Statutes.
. "Unnatural" means not in
accordance with nature or with
normal feelings or behavior.
"Lascivious" means lustful, normally
tending to excite a desire for sexual
satisfaction.
Florida Rule of Criminal
Procedure 3.704(dX9) states, in
pertinent part: "victim injury must
not be scored for an offense for
which. the offender has not been
convicted."
Emphasis added.
Despite that prohibition, the lower
court determined that the crime
charged included a definition of
sexual activity which included
penetration or contact See: Section
800.04(1)(a), Fla. Statutes.
The
appellate
court
opined
that,
nevertheless, the crime of which
Leveille was convicted did not
require sexual coritB.ct, and the jury
was never asked to determine
factually whether sexual contact
occurred. Thus, the jury's verdict
did not constitute a factual
determination necessary to support

the imposition of additional points
for the crimes of which Leveille was
convicted.
See: Blakely v.
Washington, I 542 U.S. 296 (2004);
also, Behl v. State, 898 So.2d 217
(Fla. 2d DCA 2005).
Leveille's convictions were
affirmed, but for the findings in the
case his sentence. was reversed and
remanded for imposition of a
sentence on a corrected scoresheet
eliminating the 120 points assessed
for sexual contact _

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Florida Prison Legal Perspectives

POST CONVICTION
CORNER

The right to a trial before one's peers includes the right to be tried by ajury free from bias
or outside influence. Trial courts routinely warn jurors not to discuss cases with others, read
.newspaper articles abOut cases, or otherwise act in a manner which would expose the jurors to
prejudicial outside infonnation about cases. Typically such admonitions from the courts serve to
ensure that juries
free from improper outside influence. Sometimes, though, a juror will take
it upon himself to learn more about a case. A juror may try to talk to a witness outside of the
courtroom duriDg a break or watch a news,story about the defendant. Such actions ~ prohibited
and threaten the integrity of a trial. Ifjuror misconduct becomes known to defense -counsel, the
trial court should be alerted and the alleged misconduct should be investigated before a case
progresses any further. The failure of defense counsel to properly address juror misconduct can
amount to ineffective assistance of counsel which renders ajudgment and sentence invalid.
Misconduct of a juror in a criminal trial entitles a defendant to a new trial where prejudice
can be established. F.R.Cr.P.3.600(b)(4). In a criminal caSe, any private communication,
contact or tampenng with a juror about a matter pending before the jury is presumptively
prejudicial. Remmer v. United States, 347 U.S. 227 (954). The presumption' is not conclusive
but the burden rests heavily on the state to establish thai any improper contact with a juror w~
harmless to the defendant. Id. If the misconduct is such that it ~ould probably influence the ~
jury, the onus is not on the accused to show that he was prejudiced for the law presumes he was.
Russ v. State, 95 So. 2d 594 '(Fla. 1957).
In Marshall v. State, 664 So.2d 302 (Fla. 3d DCA 1995), the defendant was convicted of
attempted second degree murder. One week after the defendant was convicted, he filed a motion
for new trial and a motion forjuror interview, allegingjuror misconduct. Id. at 303. In support',
ofhis motions the defendant submitted an affidavit of Cindy Munson, a trial witness for the
defense. liL In her affidavit and subsequent s~om testimony Ms. Munson alleged that she
visited the defendant at the county jail before and during the trial. While on the witness stand at
trial Ms. Munson vaguely recognized one of the jurors, Johanna Giorgio. Id. After the jury
deliberations had begun, Ms. Munson remembered that Ms. Giorgio was the volunteer at the
county jail who escorted Ms. Munson to the visitation booth for Ms. Munson's visits with the
defendant. Id.
After the jurors were seated in Mr. Marshall's case the Court instructed the jurors to have
no discussions with any ofthe attom~ys, the witnesses, or the defendant. Id.. After giving the
jury preliminary instructions, the trial court recessed witil two days later. Id. In the interim, Ms.
Munson visited the defendant at the county jail. Juror Giorgio, in her capacity as a volunteer at
the jail, escorted Ms. Munson to the visitation booth to see the defendant. Id. The trial
reconvened the next day with Juror Giorgio in the jury box~ Later that same day Ms. Munson
took the witness stand. ]?uring the trial Giorgio never disclosed her jail contact with Munson or
the defendant. Afterwards~ the jury was sent to deliberate and the defense began to identify
Giorgio's status. Id. at 304. After the verdict was rendered the defendant filed his motions for

are

14

I

by Loren Rhoton, Esq.

·Florida Prison Legal Perspectives
new trial alleging juror misconduct. Id. Said motions were denied. Id.
. On appeal the Third D.istrict Court of Appeal reverse~ the trial court's denial of a new
trial and held that "juror Giorgio's failure to disclose her-contact with defendant and his witness
constituted prejudicial juror misconduct which deprived deferidant of his Sixth Amendment right
to a fair trial." Id. at 304. Juror Giorgio was clearly instructed by the trial judge to have no
contact with the defendant or any of the witnesses.' Ms. Giorgio thus had a duty to disclose her
contacts with the defendant and Ms. Munson to the trial court. The Marshall Court held that Ms.
Giorgio's breach of that duty of disclosure prejudiced the defendant's fair trial rights and entitled
him to a new trial. Id. at 304.
As noted above, defense counsel has a duty to alert the trial court to any alleged improper
actions ofjurors, The failure of trial counsel to alert a trial court to apparent juror misconduct
falls well below an objective standard of professional reasonableness, as is required by Strickland
v. Washington, 466 U.S. 668 (1984). There simply is no excuse for an attorney's failure to
further investigate such a matter after the discovery of any type ofjuror misconduct.
Furthermore, there is no excuse for ~ attorney's failure to alert the trial court to improper juror
actions. The prejudice to a criminal defendant is app~ent and is, in fac~ presumed in such a
situation. Remmer v. United States, 347 U.S. 227 (1954). As a result, any time defense counsel
becomes aware offacts which indicate the possibility ofjuror misconduct, it is defense counsel's
duty to raise the issue with the trial court. ' Any failure to do so results in a weighty deprivation of
a defendant's constitutional 'right to a fair trial.before a jury Ofbis peers.

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 ofincarcerated persons with their cases and has numerous .
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written appellate opinions. •

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AVAILABLE FOR STATE AND. FEDERAL ;
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.' Providing repre~entatio" in Direct AppealS, ~elated Ap~
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Florida Prison Legal Penpectives.

Loren· D. Rhoton
1

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OPPAGA Report

ReportNo. fJ6.15

ExhIbJt 1
The Parole Commission Performs aNumber of Criminal Justice Func~itms
fi.,al Yeal 200,: ·05
CommIssion DUI:es

February 2006

Report No. 06-15

Parole Commission Operations Consistent with Its .
Mission; Clemency Workload Ne.eds·to ~eAddressed
ataglance

Scope

The Parole Commission !las bBen· successfu1
In identifyinalow-risk offenders for release via
parols. RegionafizinD the commiSSion's parole
detem1inatinn functions wouJd distributB this
worldoad across !ha S1a1I but would likely
increase OYBraU state costs. Transferring the
commiSSion's revocation authmtIy to the court
system and victimS' services programs to
other state agenclas is feaslbta but would also
llkeJy result in highar overaD stata costs.
.

As directed by the Legislature, OrPAGA reviewed
the Florida Parole Commission's major functions.
Sptlcifically. this report

The commlsstDn also staffs the Ronda Board
of Executive Clemency, whose b~k10tl
continuestD. grow. ThB commissinn has
proposed funding addltinnaJ clemency staff to
address the baeJclog. As altBmatIves, the
Leg1sIa!ure .cou1d conshSer outsourcing this
work to a privata entitY. or the Board of
Executive C1amency could streamUne· Its
Investigation pRH:8SS to reduce woJ1dDad
wit!J0lJt additional resowces.

•

•

•

analy~ the commission's effectiveness in
determining which offenders should be
released on parole;
examines the fiscal, legal. and administrative
ramificntions of transferring commission
fu nctionS to other entiti1!S; and
evaluates options for redudng the backlog in
processing executive clem~ty appUcations.

P£:,;ioHnancc

PIl1lb~. ConducIl11mlnistrJtJve. quasi-iul!* I'lnring5 to determllle wflethet to release
ofltndfrs DtI parole and condJ1ional medlcal release.
O1fendu Rewea1ilm. Revoke !he $upelVi£lOn 01 Olftndet's \MID \'loIllte their SUpClYisioll condJlinns or cctrnmJt

0IIJce 01 Program Policy ArulJysis & Govemment AcmuntabiUty
an office of /he Florida Legislature

revocmm

2.887
hearings
WIIfJll1S. Issue warrants lor Illa arrest 01 violators;
3,597 warrJIlls
SllpeJvlslon Term and CondIfDn Settng. SC1 urms
comfie of supeMsiall for pt101e. comntlonJl
reWse. a4dictiotI recovery supeJVislon. and conditonal rnedicll rduse such as rnanclatoJy dlUlJ fJUtment.
angu ~ COllllSdllg, J1lli'0I' resttmns on \\'tIers t:uI Gttmdet may rewe.
6.3&6 o1!ll\lItI$
Vlctm AuIstance. Notify. and solicit. rrom. Wct!ms e2lnmalelllllat arc ~ tor parole pl'!llr to 5ellWtc:e '
cClln¢dOn. ill al:COnIInce y,~ mm ~ requlreman1l.
2,913 WcIims assIstell
tt.emency. Ptlform ~ anlS &nes1!gatve adM:its fez til!
Board.
43.332 ~

.. ntw~.

w

canencv

ln fiscal Year 2DQ5..{)6. lhe Legislature
appropriated $~,34 million in general revenue

Findings - - - - -

. and authorized 148 fuU~time equivalent
positions to the commission. As illustrated In
Exhibit 2. parole occupies an increasingly
minor part of the staffs time. while clemency
investigDtions and offender revocations now
dominate staff time.

We reviewed the .commission's parole
determination, revocati~ supervision tenn
setting, victim services.. and demency
responsibilities.
We concluded that the
commission has done a reasonably good job
identifying irimates who are good risks for
parole release.
Whila there are some
advantages to moving its revocations,
supervision term setting, and victim services
duties to other agencies. we concluded that no
significant cost savin~ or quality improVeD\t!J\t
. would result.! The demency appUratton backlog
has increased since our last report. and there are
a number of options to address this backlog.

Exhibit 2
Almost Half of the CDmmlssion's Wortcload
Is Related to Clameney
.

Background
The Florida Parole Commi5sion plays two primary
roles in the criminal justice system. Fimt., the
commission seeks to .protect public safety by
determining the suitzabillty of releasing certain
offenders from incarceration and by setting the
terms and 'conditions of supervision for post
prison releasees. Second, the commission acts as
an investigative body that supports the Board of
Executive Cemency in· considering petitions. for
demency by offenders. Exhibit 1 show5 the
spedfic functions performed by the commission.

341 paroll: Ileartngl
43 oIlcnders pVDl£d

Parole determination

.,-

CanIII:J

On~

of the basic functions of the couunission is
determining what inmates should be paroled
from prison. Prior to 1983, when determinant
sentencing led to the abolbh.lMnt of parolt!;
parole was the primary method of prison
release. Currently. only those Inmates whose
offenses occurred before the ch:tnge· to
sentertdng guideUnes and capital felony cases .
up until 1995-5,178 inmates as of September
2005-are eUgible for pal1)!e.

2

ReportNo. 06-15

OPPAGA Report

PamledoHendelS have lowerrecidivism
rat8/han cOl1qJ8la/JII n01H/lSCffJlional}'
lB!easlJlJS

The parole determlnntion process· comprises
three primary phases.

1. At a public hearing. the commission sets a
parole.eUgible offender's presumptive
parole rele"se date, or the date <It which he
or slw may fll'St be considered for parole,
following a review of the inmate's prior
criminal hi.story and communlt)'
supervision record, severity of the offense,
and the presence of aggravating or

One measure of the commission's effectiveness
is how well it Is able to identify offenders who
pose the least threat to public safety. By this
metric, the commission has been successful.
An analysis of recidivism data for inmates
released from prison in F"15C31 Year 1998-99 and
F"tseaI Year 1999-00 showed that paroled
inmates fared far better than Inmates with
s1miJar . criminal hislori~ but who were
rel~ased mandatorily at the end of sentence.
As shown in ExhJ1nt 3, within 36 months of
release, only 16$ of paroled offenders had
been charged with II new offense, while 39% of
conditional releasees ·and 28% _ of offenders
with split sentences had reoffended. 1

mitigating drcumstances. The commission
also considers victim Input when setting a
presumptive release date.
2. SubHquent reviews of the I'ftSUIDptive

parole release date are held every two to
five years In hearings open to the public.
At these hearings, commissioners review
the inmate's institutional adjustment.
noting prison progress reports, program
partidpation, disciplinary actions,
psychological evaluations. edum~onal and
vocational training. and other factors.
Commi.sskmers then vote to reduce,
extend, or order
change-to the
presumptive parole release date.
3. F"maUy, 45 the presumptive parole release
dare approaches, the commission conducts
II final review of the inJ.nate and the threat
he/she poses. At thJ~ time, the commission
solicits input from the sentendngjudge,
state attorney, law enforcement, the
lnJN:Ite's famUy and victims; conducts a
complete review of the inmate's file; and
interviews the ilUllate and sautinizes his or
her proposed release plan. The
•
commiS1lioners then vote at a public
hearing whether to gr.mt parole.

ExItlInt 3
PalDled Offendars Have Lower Recidivism Rates
Tban Other Released Inmates

no

c::=' 1..
Spllt

•

~

1"

Because these groups differed on demographic
variables, QPPAGA conducted a multivariate
regression analysts that controlled for
offenders' race, gender,- age, and criminal
history.
This analysis indicated that
demographic differences between the groups
did not explain the gap in recidivism rates and
that a pl1rolee was .haUas likely to reoffend
than· a conditional releasee of the same nce,
age, ~nder, and criminal record. This analysis

QPPAGA examined two questions related to
parole deterlnin3tfon.

•

_

Sentance

-..:1-7%

Is the commission successful in Identifying
good risks for parole release?
Would shifting paroledctermination from
the cutn!nt centralized system to a regional
system result in cost savings?

I A~pUt wnmlU b • lWfI~optlOn in wtudI An
~ . A prbon lml1 fclIlM'ftI by • lNnd.luJy

oH.rncIn
Imn of

OPPAGA Report

'Report No.. 06-15

suggests that ~e .-mCfre . subjective factors
consId~ by die com.misJion-fac:toTs such as
an· Inmate's mental health. status, .in-prison
disciplinary record, employment prospects,
and family support-mo)' play an Important
role in determining reddivism, and that the
comrnis5ion is ~uccessfulln determining which
inmates'l1~ likely to reoffend.

HOwever, these costs savings might be offset
by higher admtnlstr.uive costs. It is likely &hit
no administrative support positions could be
cut by moving these functions to the regions,
and some additional posJUons might need to
be created. Currently, each commis5loner has
two stIff l1$5isting with his or her caseload. If
c~ch volunteer commis$ioner were assigned
··one administrative support position, 12 total
positions would be required, llSSuming four
~gional boards with three commissioners
each. This would result in " net increase of six
administrative 'support positions stateWide.
. Salaries i1n~ benefits of these six positions.
estimaled at $206.382, would mostly offset the
$213,092 saved as a result of culting the three
paid commissioner positions.

ShiflJng homa cen1TaIizedpam/e boanllo
regionalpam/e boanIs may distribute
wofldoad, buthas anlJlllber Of
disatlYantages
In 2005, the Florida Legislature considered a
bill to create four regional. aU-volunteer Parole
boards. The bill proposed that these boards.
appointed by the Governor, be responsible for
conducting parole determination hearings
only; parole revocation authority was to be
granted to the judicial sY5tem. The bill also
proposed that the Office of the Aftomey
General provide all administrative support for
~e regional parole boards.

In addition, switching from II centraUzed to a
regional splem muld result in inconsistent
parole determination i1J1d lead to divergent
outcomes throughout the state.· Lead bo3rds
might be !eM likely to lluthorize release,. due to
community pressure to deny p3role. which
could lead to higher state incarceration costs.
While fewer releases could result in las crime,
it appears that the commigion's saeening
process has been relatively successful at
screening out offenders who are most likely to
reofknd, 115 previously discussed.

There would be a number of advantages and
disa~vantages of this option. U the regionS
were approprillteJy sized ~o ensure roughly
equal worklo.1ds and commissioner dutlcs
were restricted to parole determinations, each
volunteer (QlJUl\ls$joner would have cm1y onequarter the parole workload of current
commissioners, which would be reasonable for
a volunteer board.
In addition,' parole
determination functions would not likely
require .a reengineering if moved from the
central office to a regional model. Currently,
most of the work llssodated with determining
and reviewing the inmale's presumptive parole
release date .is performed at the regional level
by parole examiners.

Texa; is the only state that has adoplL'd ll.semiregionalized system. In that stale, seven
govemor-\Jppointed ~rd members and 11
~ appointed by the boanL divided
Into Ih~member panels operating out of six
regional offices, make release lind revocation
decisions. However. the ,yC)lClS system of
regional parole panels is unlike the Florida
proposals in four ways. First, Tems parole
panels may make parole determination
decisions without holding II hearing; due to the
panels' workloads-hundreds of cases per
week per panel-most decisions are made
simply by reviewing the inmate's file. Second,
unlike the proposed Floridll regional boards, aU
panel members are paid; each of the 11
commissioners are paid approximately $15.000
II year, and each of the seven board members

Eliminating
the
currenl. three
p3fd
commissioners' salaries would SIlve the slate
$340,947 in salaries and benefits; of this
amount, S213,092 represents the portion of
the commissioners' time spent on activities
that would be performed by volunteer
commissioners under this proposal.

COIlUnun!ty kJ~

3

4

...

GO

Report No. Q6.15

OPPAGA Report

are paid approximately $86,000 a year. Third,
all administrative support is housed within the
parole board, rather than at another agency, as
envisioned in the Florida proposal. Finally,
Texas uses parole risk assessment Instruments
and PArole guidelines which officials believe
helps to ensure accountability and uniformity
In declsl~n making. The 2005 proposal to
create regional Florida p4role boards did not
have such a provision..
..

the fiscal and legal
implications of transferring these functions from
thf commission to the judicial system. as
proposed in legislation introdured in 2005.

OPPAGA . examined

revocations and term and
condition Setting from the commission to the
judicieJ system would increase the costs of
these activities by an estimated $2.42 million to
$3.53 million annually. .The lower estimate
represents the costs to the court system If the
process remains an administrative hearing and
Transferring

converting

additional caseload. Since the commission
currently aUocates .49.3 FTEs to revocations and
term and condition setting at an annual·cost of
Increased annual cost of $2.42 million. If this
authority were transferred to- the. judicial
the Office of State Courts Administrator
believes that deJays in the adjudication of ca~
in the civil and family. divisions would
increase.

Tht!
commission
also
mnkes
final
determinatiOns regarding alleged violations of
paJ"?!e, conditional release, addiction recovery
release, control release. and conditional medical
release. Upon a fiJufing of fact that an offender
has indeed violated the terms and conditions of
hJs or her release, the commissioners may vote

The

upper

estimate

includes

the

costs

associated with shifting from a non.adversarial
. pr6ceedlng-as Is cul1't!ntly the practite at the
commission-to an adversarial proceeding,
with the state represented" by an wistant slale

to revoke supervision and return the offender to
prison. continue supervision,
tenninate
supervision, or amend the terms of supervision.
The vole ocxurs at p pubUdy nalfred

attorney and the defendant represented by
counsel.
Currently, probation revocation
proceedings-the only revocations now
handled by the court system~re adversarial.

bearing..in which the offender

does not have an automatic right to coumeJ. •

P"'Jtdlon ~ !lOt indI.Idt' an ftIlDOlitnI S72l.J78 In
ItDlU'K'IlIrlnJ tnmltton nl5U or ttw addlltoNllWlI WI wouht

~ Thi5

ariw frolll Ippeab of thne reYtl(ltion dfdslom.

5

•
•

•

parole. rev0a3tions

from

J

~

an

:=l

release plan. upon request;

is:

•

assistance with providing input to the
commission;

•
."

•

assislanre at the hearing. induding

•

and reading statements from victims upon
request; and
.
notification of the commission"s decision if
victims are not in atlendance.

=-

Q

::I

r-

ft

lIsJ

-

."
(D

i

In addition. the office gathers information
. about the nature of the crime to assist the ft
commission
in
determining
whether
aggravating factors (e.g., torture, excessive
brutality) were present; in setting the
presumptive parole ~Iease date.
the

a<"

Two FIorill.l 5lIpmmo Court C&1a .uppart Ihb condwion. In
1m. tht f'!lniI!& Suprnnr CIIWt edaIdtd thr rtghl to axrn-.fC
ID .n i1IleFt ~tiDn WIIoItl\:lS, ~chd .1UI1fcml ndr

11

.u pmbItlon fftW'Ikm." helnnp w.ss ~. Nll1y
undrnlood and e.mr ID admlMl« ItYn a rult' 1'ft)U1"""
aUontry$ ill toIDt' case bul not oUltn (Salt of FIo:idJ '1/. Hl:cb.
4B7 So.%d D. Ie). A 1'067 ~ 5upIftnr Ccwt ndint
dth(lt'.l~ lfuft -;or dlHrrmcft ~ plObllion alld
. 1M_ INI 5IIppotted lhe lftIulmnrnt of tuUn5ll'l fOI Ih.
dfftndanl III 111- proIMtion rtVOC:Illon ~ bul not ilt .n
pa_ ftWQllcn bartJ19 (floyd v_ pan.* ..nd PnJbIlIDn
~n. 509 So.2.d 919. 193f'). T_ cf thtw tJmot' palnli cf
dlflr~ln-thlt prcrboItion rn'OCllllon hr.aril\8$ a~ condUdC'd
III 1M jladldll IY'1ft11,. whlJr plIm1.t rnocalWn brull185 alY
&dJnIAblRtMo in oahUt'. and tNt prabillon rnoc:atlDrl
Iw~ Aft anllhzrttd by bwym (j1Atge5). wt& p.IJW
IftOQIInn helrinp _ noa-~ br diminalfd by a sw"ttl
to JudICIal ~rIon hannp fol plrolt' and olm I)'pa of
~blC currrnliy MljudlQttd by Uv COllllniuion. Thor thlrd
point of dl1frmdl&1ion, INt puclr ftVOQDon cloft nol Iud to
a It'D~ hNJUli. t'Oadd lll1I hold; I. H7.1.1(4). F.5..
In

commission may use this information to
increase the date at which the inmate is first
eligible for parole.

•The office has four fuU-time staff and a budget
of $204,81Z.Roughly one-quarter of the office's
budget--$48,422-is not funded by the state,
but is supported by federal Victims of Crime
Act grants.
OPPAGA examined the effect on the cost lind
quality· of services of transferring Vittims'
Services from the Parole Commission to either
the Department of Corrections or the Office of
the Attomey Genel'Dl.

aulhoriza thr anruni$$kIn to ~ ellJlftVhtOn and rflw'n
lhe ~It~ 10 prbon. Wrrlmtllt'
ortpl Old.r snnlll18 IIIl'
rr~., or nUn wdl oltwr
~ II CONidm ptoprr_w II b
undfu wtwthn
pnadlW 0lIlB.ntd In this IUtuar. 1dlld1
_ fl\Idrd ..ftrr thr 1987 cltcDton. \WUkl \If C'IJlllhwd al
luffidt'Illly stmlllllD a It'lltrndll8lw"rt"l-

*

*

notification pf upcoming hearings \."i3 milil;
one-on-one l'Uunseling abuut the pro~s...
and th~ victims' legal rights;
provision of documcntalipn available to the
comntissionc~regarding their offender's
Q
case. including the offender's proposed
-J.

maintaining a separate waiting area. for
victirm. accompanying victims to the
hearing and providing emotional support,

administrative proceeding to an adversarinJ
proceeding in .the judicial system would be
$3.53 million.

$2.35 mUllon. this estimate represents a net

system and appropriations were not increased,

The Parole Commission's Vidim~' ~ndres
Offke providc!' a variety of scr\'ic:~ to victims
of offender.;. being considl!rt.'d for pttrole,
clemcncy, or conditional medical relt>aSt-,'
including:

According to estimates provided by the FJori~a
Public Defender Association and the Florida
Prosecuti~8 Attorneys Association, the yearly
cost of providing counsel for these cases would
be ~pproxlmate)y $J.ll million. Combined
with the aforementioned.court workload ~ts.
the total estimated costs associated with

2

amditions they deem appropriate, however.
inrluding mandatmy therapy progmm5,
prohibitions against· traveting to particular
counties or states, or driving or employment
restrictions.

Victims' services

requirement ~f counsel.

reflects the net cost increase associated with
the increase In judges' workloads, as weU as
the court reporting costs associated with a
judidaJ proceeding. According to the Office of
State Courts Administrator, at a minimum, the
Rorida courts· would require on additional
64 FTEs (9· judges and 55 support staff)
and an additional $4.77 million in annual.
appropriations in order to .absorb the

The Parole Commission sets the terms and
conditions of parole, conditional medlQlJ
release, anuiitionaJ reIwe. and addiction
recovery release. These tenns and co~dition5
are set at the time of re~, and typiailly
include refraining from contact with criminal
associates, submitting to urinalysis, and paying
the cost: of supervision and rehabilitation.
Additional conditions are outomatimUy
lmposed on sex offenders. Commissionen have .
\ the discretion to impose any additiorial

RepodNo.06-1.; .

proceedings, and it appears likely that
transferring additional revocation authority tp
the courts could lead to the introduction of
appointed cou nscl for indigent defendantS and
the need for counsel to represent the state's
interests. '
The Office of Stale Courts
Administrator and the Florida Prosecuting
Attornevs Association concUr with this
conclusion.
The Rorida Public Defender
A~tion opined that counsel will be
required In only those Cl1Ses in which the
offender is alleged to have l'Ommittt.'d a new
crime; the association believes. that hearings
regarding technical violations are not
sufficiently akin to .. sentencing to trigger the

Tli1J1stening revocation and t8lT11 and
condition selting authority to the courts
would slgnlRcanUy increase costs .

Revocations and post-prison
supervi.sion tenn and condition
setting

Q~islDlive

OPPAGA Report

oma

·6

OPPAGA Report

ReportNn.06-15

member dedicated to direct services who
works with victims of capital cases and their

Transfening Victims'Setvlces to another
entity is unlikely10 resultin significant cost
savings andmay result in lowerquality
selYices
.

families if and when an inmate ·on death row
..ppeals his or her scntenc~ to the district court
or th~ florida Supreme Court. Thl!' locallttah.attnrnt>y'.., nffiet" prm;idt!'S these services during
the inili.d lrial.

If lht' P.uok- ('ummb~ion w~r~ aboli~hed, Iht"
Dcpartmt'nl of Cufrt."Clions· Victim A~sistam:~
Otrin- would ~ best pUiSt.'<i 10 perform thl.'!'Ot-'
fundion~. This nUke, ,-urrcntlv ~Iaffed wilh
se... ~n Frt-:s, perform!> the l>iU"~ -Iyf".' of victim
IlCltifiC.ltion and ,'ounselinR ~'n'ict'S (or victims

Clemency
Originally design"od to address miscarriag~'S of
justice, dl"mcncy hilse\'ulved to tak~ on several

of offend IUS nearing their mandatory n?'1"'ase
vlc:tims o( offl.'nders eligible for
di!tuctionnry rcleaSl' (parole) are, tiS not,,-d
above. a!OSisled by the commission.

forms. . These Include (un pardons. which
unconditionallv releaSt! an individual from
punishment and forgive guilt for any Florida
convictions; rommutations of sentence, which
adjust an offender's senta!nce to one less severe
(Including changing 11 death row inmate's
sentence to life in prison); restoration of
firearms iluthority for ex-felons; 3nd restoration
of civil rights- -the right to vote, hold public
office. serve on il jury. and Obtain stare.issued
occupational Jin-nses-for ex-felons.

date;

I
:

>~

e.,a.
Dot
-

fJJ
U

I fowever, the dep.rrtment does not ~rfoml
other functions currently providt..d by the
commission staff. such as accompanying victims
to hearings. as.';isting with victim impa,,1
~t~tenlents, or galhering InformDlion about the
n.. lure of the crime. since the end-of-!ientence
releases administered by the department lue
non-di~Tetionary in nature and the~foretheh!
i, nore~ea~ d«il;ion for which victim Input
must be obmined. Also, be<'au...e the d~rtment
doelO not have. ex~rience providing th~
!\ervkes And its pcr.;onnel do. not deal with the
intricacies of the p.1role pl'OCeSS-'iuch as the
:\COring sysrem used to cakulate the inmate's
pre5umpUve
parole. rel~~
date-the
department's cummt staff would be less
proficient in assi~ting victims of parc~Igiblc
Inmate5. According to the director uf the
departmenrs Victim As5ilitance Office, in the
event· the department we~ to I15SUme the
(,-ommi55ion's Victims' Servi~ duti~. he would
request that aU of the commission's slaff be
transferred in order to manage the increased
workload and provide ex~ on parolespecific issues. There would lherclorc be no
emt savinp in terms of personnel

The Florida Clemency Board. compOsed of the
Florid" Cilbinet. makes all final decisions
regarding the granting nf clemmcy.· It is
ilssistcd by the Parole Commission's Office of
Executive Clemency and Office of Clemency
Admint..tTiltion. These offices as....ist the board
with the two main procC!'ws for c1emencyc1emen("y with a formal hcaring and
restoration of dvil rights without a hearing.

=_

-1
~

-C
~

CIS
"C
-;:

oS

~

c........,

form" heart...

All ex· felons
seeking a pardon or commutation of sentence,
and.some ex-felons ~king restoration of evil
rights, must U5e the formal hetjring. process.
In these cases, the appllcilnt completes a short
application which prompts the initiation of
a full investigation as mandated by. the Board
of Executive Cle~ency_
The application
information is verified by field investigators
3t the Office of Oemency Administration.
The commission staff then forwards its
recommendation and investigative' report to
the Oemency Board. whlch makes its decision
following a formal hl!aring.

Another option would be to transfer these
functions 10 the Office of the Attomey General,
which olso has Q Vcdims' ScrviO!'S Office. The
cunent focus off this office is ildmJnistering
federal Victims' of <:rime A,t grants and the
sIDle's Crime Victims' Comperwtion Program.
Unlike Correctio~ and the Parofe Commis..\lon,
the Attomey Gener.d providn few direct
victim u'tistance M!rvices. It ha~ one starr

wtth •

OPPAGA Report.

Report No. 06-15

R..tomlon of civil rlghb wlthout • hearl...

The backlog--defined as the number of
clemency applications that had been received
by the Office of Executive C1emerqo but not yet
investigated by the Office of Clemency
Adminlstration-stood at 71199 cases. 10

(n acc:ordance with changes to the Rules of
Ex~utive Clemency adopted in OKember
2Q04, most nonviolent offenders are eligible for
restoration of civil rights without a hearing.
provided that they h'1\'e remained arrest·free
(or at least five years and do not owe victim
restitution.
All offenders .:Ire eUgible (or
restoration of civil rights without a hearing if
they have remained arrest-free for 15 years and
do not owe victim restitution, although In rare
cases board members may object and initiate a
fo~al hearing process.

t:Jowever, .the backlog and th~ average length of
hme- required to process a CiI~ have increased
significantly.
According to a commis~ion
analysis, the backlog rose to 13,329 cases as of
February 2:006. Bnd demency ilppUcatiOns
requiring a fWJ investigation took. an average of
22 months to be processed.
There are two main reasons for this increase in
the backJog. First. the number of applications
for clemency inc:reased dramaUcaDy. As shown
in Exhibit 4, clemency applications increased
from 22.534 in Fiscal Year 2000-01 to over
40.000 a year thereafter.

While formal applications to request the
restoration of civil rights is the most labor
intensive. 90% of appUcations Me '"automatic";
that is, sent directly. from the· Department of
Corrections to the commission electronically
when offenders compl~te their prison or
supervision terms. This electronic process was
established in response to a 2004 ruling of the
First District Court of Appeal which found that
thl! Department of Corrections failed to assist
offenders with the paperwork t~ regain their
voting rights. '
.

Exhibit 4
Clemency Applications Increased
1co.oao--

12Q,0001

OPPAGA ex.. min~ three questions' re14ted to

100.0001

the commission's clemency activities.

•

::]

How effldently is the commission
processing clemency cases?
What polley options would improve the
processing of clemency cases and eliminate

2OJIIlO1
D~··

the backlog?

•

-

.

-_. _ •. _ •. _ .•.. ~ ••.•

2000-01 2001.oz 2C02-03 2OO3oOot 2OO4-OS

nsc..,.....

Would transferring clemency functions to
the Executive Office of the Governor result
In cost savlng5?

A13Igeincrease In applicaiJons wHhout a
corresponding Increase in p6fSOnnelhas
led to abacklog ofcases andlengthy
appUcalionprocessinglimes

The Fiscal Year 2002-03 peak Wll$ due to the
substantial inaease in restomtfon of dvll rights
applications foDowing the aforementioned
judidal decision requiring the Depa~ent of
Corrections to automatically forward the
names of eligJ'bIe ex-offenders ~ restoration of
. civil rights considemtion. Thecomniission also
attributes some of this inaease to the

At the time of OPPAGA's 2001 Justification
Review, restoration of dvil rights ~ without

a hearing took an average of 6.1 months, and
full investigations took iU\ average of 16 months.

·/mlilk"tim, Rnt-~ ~ R_/KtJcJM, I"nJ&l'ou Imp"'t_flb
/tJMilrla- in P"ro&- CCnJun/tJimI Optr.. 1tDm. &''''0 ~I' U'.\',
Kowmbn:an Notr. ~ twlJa& ~ ~ IA lhb nopotI

• Thf' CttWmltr. AlhmWT Cf""~ Cltwf FlJ\lneW Offkw, aIld
CommIBk>,wr ..( ~llU", Ind CCMultWf Somikn tomJ'OW
tl\l" FllIrId.. C.t1:illott

7

.•.. -'--- .

1.co.oao~

(6,07 can) ~ brft\ ufd-lBI to
d~hnilion.

8

I'I6«t • ~ b.Id.Iog

Report No. 06-15

OPPAGA Report

simplification of the proress over the past five
iSS
high-profile clemency
campaigns conducted by the American Civil
liberties Union and other gmupsfocused on
felon enfranchisement; many of these groups
held workshops around the state to assist t'~­
o ffunders
with
completing
clemency

Administration for assignment to a field
investigator. As shown in Exhibit ~ each case
then spent an ayerage of 56 ndditional days in
the Office of Clemency Administration before
being assigned 10 a field office. Efforts to
reduce pre-investigation backlogs, however.
would likely increase backlogs in therield
offices. where examiners conduct full
investigations. Cases thai do not require.field
office investigations take far less time to
process. for example, electronic restoration of
civiJ rights applications that come directly from
the departmt!nt and bypass the fuU
investigation process take. roughly .six months
to complete.

years as weD

applications.
Second, due to siaffing levels, many CilSes wait
over a year to be processed. Oemency cases
spenl, on average, over a year (432 days) in the
Office of Executive Clemency in the initial
~ges of application processing. before being
referred to the Office of Clemency

Exhibit 4
Clemency cases Take Over 600 Days to Be Processed by the Parole COmmission

OPPAGA Report

Report No. 06-15

Strum5nlng clemencyinvestigations
wouldreduce the backlog and clemency
coSfS

Chanp restoration of c:f!Il rlsMa poSey to
automatically ...to~ civil rfshta of

•

offenders upon ,... . . from prlMn or

aupemsfon. The Clemency Board could
adopt a policy to automaticaUy, appmw all
applications for restoration of ex-felons'
civil rights upon release from prison. This
would free up clemency resaUra.>s to
perform other clemency activities and
reduce the backlog. In Fiscal Year 2004-05.
therommission had 51 FTEdedicated to
clemency activities. If thiCJemcncy Board
permitted ex-felons to automaticaUy receive
their dVihights back upon completion of
sentence. the restoration of civil rights
workload would be eliminated, aUowing
the sIDle to s.ave approlCimnte1y 24 FTE and
$1.08 million. Such a poUt)' change would
not be Inconsistent with national trendsin most states, ex-felons automatimUy
receive their voting rights back upon
completion of their prison or supervision
sentences. I Opponents of this option poi~t
out that clemency is not a right and that the
Clemency Board should retain the
authority to exercise discretion in. clemency

We assessed two options for reducing the
clemency backlog: increasing clemency stamng
and streamlining the clemency investigation
process. While additional staff or outsourdng
would reduce the .backlog. changes in
ckmency investll;iltion requirements could
aUow the commission to redirect staffing to
address the backlog.

fncroaso otaffinl. For Fiscal Year 2006-07; the
Parole Commission is requesting an additional .'
20 fuD-time staff and 20 part-time 01'S staff. at
a cost of $1.45 million, to eliminate the
clemency bAcklog. As nn alternative. the slate
could add temporary OPS staff and/or
outsource the workload. Hiring temporary
OPS staff would be less costly than fuU.tiJne
staff, .If OPS staff were hired instead of full·
time staff, the cost· savings associated with
eliminating benefits of the fun-time staff would
be $168,331.
.....

Outsou~ing

~IlS

addressed in our 2001

Justification Review. which concluded that
privnte sector cost estimates for investigation
work were comparable to the commisSion's
costs. 7 The advantages of outsourcing include .
not adding additional state staff and· "the
opportunity for the state to test the quality and
timeliness of privatizing this fundion. The
disadvantages of outsourcing include the
private sector's lack of access to aiminal
records and datD systems and lack of
familiarity with the demency rules and

ases.
•

In Fiscal Year 1AJ04.OS, the commission
completed 2.,944 fuU restoration of civil
rights investigations; on average; these
investigations required 15.28 hours of staff
.time to verify the applicant's military
history, mental condition, employment,
and oth1?f iterns that appear only
tangentiaUy related to one's suitability to
regain civil rights. Reducing requirements
for these ca$eS could save re5Ources. for
example, if the Board of Exeaative
Clemency were to limit the investigation to

process.
StreandIne cI~ Inw~ Another

'option fOf reduciitg the backlog is to streamline
the demency investigation requirem~ts by
modifyil.'g the time consuming investigation
requirements of the Ocmency Board. This
could be done in two ways.

Nott: p.ta ft~ Fisal 'rr.r 2lXQ.03 .pp~liol'5.
florbU p.,. CommbsiDn.

~

,"t2t

0Ihn" INn fbisIa (kmbJdty and ~l ftIIloIiJ'r
a-ftlons to PfIllion tlJ haw thrIr W'DlinB riahtll ratlwfd. NinP
olhm ftClUW mrtaln ClWSO_ of ollenden 10 pelitlan or
ftquUe a wall1Jls ptriod to rcmw tItdt rtahtl bid.

• T_

, IUJfjfk.IiDnR~ Bud8PtR«11K1kNu, ~ IO~11s
AwIb40 in hrcW CtmunJsit», ~r61ion1. Rsw" Nil 0I'!i5

NonmbnZOOI.

-9

.edue. ttselnvntJptlYo work for tho
Rostoratlon of cIYf. rfihte..... Reducing
the clemency investigation work performed
by parole examiners would free up
resources to reduce the d1?mency badclog.

10

DRAFT

OPPAGA Report

rewer elements- - su'ch ~ a criminal history
check and verification of restitution .:and
court fee payments, det.:ainers, and child
support-the state cnuld cut approximately
19 rn parole examiner positions for ;)
savings of $914.490, Alternatively, these
positions could be used to redUL"e the

positions are select exempt Service, with all
health insurosnce premiums funy p.1id by the
state, while most commission positions are
career service positions, with employeeS'
paying a portion of the premiums. According
to Governor's Office officials, transferring
Tallahassee-based commissiun employ~~ to
offices at the Capitol would 'increase the
cwerhead costs of the Governo(s Office by
$377.000. It is unclear to what extent these
increased facUity costs 'could be offset by
501\'inp, resulUng from renting or reallocating
the commission's current workspaces. .

backlog..

Trans{Qnfng clemencyfunctions to the
Executive Office ofthe'Govemor would
HkelyincreaseprolJlH(T1 costs
Transferring the 51 clemency staff directly

.Agency Response--

involved in clemency activities from the
cnmmission to the Governor's Office would
lead
to additional annual' costs of

In accordance with the provisions of
s. 11.51(6), Florida St:ltutes.. a draft of our report .
was submitted to the chairman of the Florida
Parole Commission for review and response.

muJOO.

approximately
This indudes an
increase in personnel costs of $417,000 and an.
increase in overhead coslS of up to $377,000.
Personnel costs would likely increase because
most positions at the Governor's Office have

The chairman's written response is reproduced
in its entirety in Appendix A.
.

higher S3L1ries than comparable positions at
the commission.
Mso, Governor's Office

OPPAGA Report

'Rt!porl No. 06-15

AppendixA
MOHICADAVID
e.-.lu~

FIWlElUCIt D. DUN'HY

FLORIDA PAROLE COMMISSION

C_.. ,~u.-.ny~·u.-"-,,

2601 Bbir SlOne RoJd. BlrlldlllA C, TaJ~ Fto:lda )1)99.2450

FebnJlU')' 8. 2006
Gary R. Vanlandingham. Director
Office ofProgrnm Policy Analysis and Government Accountability
The Florida Legislature
111 Wert Madison Street
Room 312, Claude Pepper Bldg.
Tallahassee. FL
32399·1475

Dear Mr. VanLandingham:
The Florida Parole Commission bas reviewed your report that analyzed the Commission's
major fimctions. We fully concur with your findings that the Commission has been
successful in carrying out its mission nnd continues to operate both efficientJyaDd
effectively. It has been well documcnted in your report that the Commission is pcrfonning'
its various functions at less cost to the state 3S compared to the proposed aJtcmatives.
We also concur with your finding tha1 the ba&log ofclemency cases lias occurred for
several reasons which are beyond the Commission's control. 'I'M Oovernor's 2006-07
budget recommendations address the long standing staffing deficiencies that have existed
in clemency. As to the other options mentioned in your report to address the clemency
woddoacl, I would reiterate tbal any changes to the clemency pnx:ess arc UDder the sole
pur9iew ofthe Board ofExecutive Clemency (Governor and Cabinet).
I )Wnt to express our !linccre appreciation for the professionalism of your staffand the
significant amount oftimC they took to understand the Commission·s issues. processes and
the critical role it plays in Florida·s criminal justice system. As the report reflects. they
were very thorough in their review and ~ysis.

·OPPAGA~th9·ROrtdi·Le9b~·tiY·~iniJ·~·_di-and-cihlectiW-aniJYSestDPiOniie~maCi:Ountaj)iiIY·

. m3 the efrd9rd i!I1lS eftectiVB use of ~ rescurces. This projed was ~ In 2tCOtdanCe wi1I1 ~ eva.lua!1On Sbs1daJU$.
Copla. of tI1is report in prf1l1 or aJl9matD aecessihle I'Otnm may lie 0IltI!ned b)' tefellmnc _488-0021 CIt 8001531-2471). by FAX
(85QI481a3804). in person. 01 by mall (QPPAGA Report Productian. Claude Pepper Building. Room 312. 111 W. Madison St.

rananassee. FL 32399-1475). CG\-erllhototr/MaJtc~.

RlJtfdl MDltitDt:

.

my oPOagutrteflllS

ProjecI arpeMsed by Marti Hartness (8501481-9233)
ProjeC1 conduCted by !Ween KJoms
6aJY R. VanlanclingtWn. QPPAGA Directar

11

.

If you b!lvc any questions Ot' need further information, please call me 81487·1978.

Sineerely.

~ ~ )(j~.

~//

C'!oc..-c.

Monica David
Chainnan

12

Florida Prison Legal Perspectives
• In Exhibit I of the Report (pg. 2) is reported that in Fiscal
Year 2004-05 the FPC conducted 341 parole hearings and
paroled 43,prisoners. Conversely, the Florida Department
of Corrections, which supervises all persons paroled by the
FPC, reported that during that sqme 'period only 22
prisoners were placed under parole supervision. (FDOC
2004-05 AMual.Report, pg. 45.)

A Critique of OPPAGA
Report No. 06-15
by Sandra Arnold
During the 2005 legislative session a bill (H.B. 1899) was
introduced in the Florida House that would have abolished the
Florida Parole Commission (FPC) as it currently exists and
replaced it with four regional volunteer parole boards, of no less
than three nor more than seven volunteer commissioners for
each region, who would only make parole release decisions.
Other duties of the Commission would have also been dispersed
out. Revocations would have been handled by the courts and
clemency investigations turned over to the governor's office.
That bill failed to pass. However, a deal was struck between the
House and Senate to reconside:- abolishing the FPC in 2006 ond
a provision was included in the 2005 General Appropriati~ns
Act directing the Legislature's Office of Program. Pohcy
Analysis and Government Accountability (OPPAGA) to revi.ew
FPC operations and report its findings before the 2006 session
started. That report 06-15, was submitted and used to defeat
House Bill 5017 that was introduced this year and that again
proposed abolishing the FPC.. That report, however appears to
have been especially tailored to defeat any attempt to abolish the
FPC.
OPPAGA Report No. 06-15 (reprinted in this issue of FPLP)
found that the FPC ·is doing a good job in deciding who to
parole or not parole based on an analysis of low recidivism rates
for parolees as compared to the recidivism rates of other ~es
of post-prison supervision releases who were mandatorily
required to be released from prison because of their sentence
structure.The Report also found that abolishing the FPC in favor
of regional volunteer parole boards and transferring revocation
authority to the courts would likely increase state costs. And
while the Report opines that the FPC is having problems
keeping up with and reducing an increasing ~acklog. ~f
clemency investigations, part of the felon restoration of CIVil
(voting) rights process, OPPAGA finds that transferring the
clemency investigation process to the governor's office would
also cost the state more. Instead OPPAGA suggested increasing
the FPC's budget so morc stnff could be hired to work 011 the
backlog or streamlining the investigation process to reduce the
FPC's workload.
On the surface OPPAGA's Report appears to be logical and
correct It seems to have been thoroughly researched; used
.accurate, applicable data; and applied proper analytical methods
to that data to reach viable conclusions. However, neither the
research, the data, analysis, nor conclusions, in many instances,
can withstand critical scrutiny. .
.
In early April, 2006, midway through the 2006 regular
session. after RB. SO 17 had been introduced and FPC
Ch~irwoman MoniCll David was reported to be usi?g OPPAGA
Report No. 06-15 to urge legislators not to abohsh the FPC,
Florida Prisoners' Legal Aid Organization (FPLAO) contacted
every state lawmaker warning them that, severalp~ of the
Report were questionable; That effort was to no' avad, H.B.
5017 failed to pass. a failure credited in large part to OPPAGA's
Report.
.
While space limitations here do not allow a complete pointby-point critique of every aspect of the Report, some of the.
more questionable areas are illuminated bel0',V,

• In Exhitiit 2 of the Report (pg. 2), a pie chart (allegedly)
created using FPC Fiscal Year 2004·05 data to show the
percent of FPC total workload hours by activity. it is
reported that the FPC spends 49% of its time on clemency
activities, 29% on revocation activities, 16% on parole
.activities, and 6% on conditional release activities.
Curiously, in Dec. 2005, only two months before OPPAGA
released its Report in Feb. 2006. the FPC itself released its
Fiscal Year 2004-05 Annual Report. which also contained a
workload hours by activity pie chart that shows
significantly different percentages than those reported by
OPPAGA. - (See Figure I. herein" being an exact
reproduction of page 17 of the FJ>C 2004-05 Annual
Report.)
.
I

• The Report continues (pgs. 3-4) to find that the (implied
current) Parole Commission is doing a good job
determining which prisoners to parole based on a
comparison of Department of Correction's recidivism data
from Fiscal Years 1998-99 and 1999-00 for parolees.
conditional releases and split sentence releases. OPPAGA
claims that an analysis of that data shows that parolees
"with similar criminal histories" to those other two types of
releases; within 36 mos. of release, had a much lower
recidivism rate, indicating that "the commission is
successful in determining which inmates are likely to
reoffend." The obvious problems with OPPAGA's analysis
" and conclusion in this section is that none of the current
ihree parole commissione~ were commissioners when the
parole release deciSions were made "within' 36 m.onths"
before Fiscal Years 1998-99 and 1999·00; and It ~as
impossible for such parolees to have had "similar criminal
histories" to the other two categories considered, since all
parolees would have served much longer unrelieved time in
prison than any conditional rel~ee or split sentence
releasee by simply having a parole eligible sentence. (See.
Report, pg. 2, "Parole determination" paragraph.)
• In the Report's discussion. of shifting from the current
"centralized" FPC to regional parole boards (pg. 4) it is
stated that the three current commissione'rs. receive
$340,947 in salaries and benefits, of which $213.092
(almost two-thirds) represents the portion of the
commissioner's time' spent .on activities that would be
performed by (nonpaid) volunteer commissionetS (solely
making parole release determinations) under this pl\)posal
(H.B. 1899). Such claim that almost two-thirds of .the
current commissioners' pay represents the amount of tIme
theY spend on parole release activities conflicts with:
OPPAGA's claim that "parole occupies an increasingly
minor part of the staffs time"; the pie chart showing parole
workload hours at 16% (10% in the FPC's chart), and
Exhibit I showing only 341 parole hearings versus 2,887

.

1,23

Florida Prison Legal Perspectives
revocation hearings for FY 2004-05. both of which take up
an equal amount of commissioners' time. (Report pg. 2).
Further, OPPAGA (twisting logic) opines that if there
were three volunteer commissioners for each of the four
regions. total 12, that each one would need a staff support
person. requiring funding for six' additional people, where
each current commissioner already ,has two staff support
people assigned to them, even though, as OPPAGA claims.
"each volunteer commissioner would have only one-quarter
the parole workload of current commissioners". (Report.
pg.2).
And OPPAGA speculates that regional boards might be
less likely to authorize parole releases than the current
"centralized" Commission, due to (local) community
pressure to deny parole, which could lead to higher
incarceration costs. (Report, pg. 4.) Such speculation is not
based on any facts to suppon it, and exhibits poor research
by OPPAGA. The current FPC is only "centralized" in that
it holds the malority of parole determination' hearings in
Tallahassee; where its headquarters are located, in direct
violation of legislative intent and the law found at Florida
Statute § 947.06, seventh sentence. That law mandates that
the current FPC hold parole hearings statewide, something
"the current FPC has not done for several years. And if
OPPAGA had been truly interested in presenting a balanced
report, it could have reviewed FPC records from when the
Commission did hold parole hearings in the various
regions, where it is shown that more paroles were granted
than they are under the (illegal) "centralized" system. This
appears to increase incarceration costs by less paroles being
,granted.

to the clemency backlog would be to automatically restore
civil rights of felons once they complete their sentence. as
OPPAQA suggests as one option. (Report. pg. 10)
OPPAGA proposed several other options to address the
clemency backlog problem. mosJ of which, however. would
simply perpetuate the existing FPC.
This critique does not address all of the perceived
problems with the OPPAGA Report as they are too
numerous. Instead, 'it is intended to provide an opposing
perspective to the Report, which appears to have been
,influenced by forces opposed to abolishing the FPC.
Figure J

COMMISSION'S YEAR IN REVIEW
FY 2004-2005
Performance ~leasures/AcIMI)' Accomplishments

[FY %004-%005 Workload lI.un b)' Atll.II)'

• OPPAGA's Report asserts that transferring the FPC's
revocation authority to the court system would increase
state costs by $2.42 million to $3.53 million annually. This
because, OPPAGA claims, additional judges and support
staff would' have to be hired to handle the increased
workload to the courts. (Report, pg. 5). OPPAGA
"overlooked" that currently FPC parole examiners spend
more than half their time on revocation activities (including
conducting hearings) that the courts would handle under the
transfer proposal. Meaning one-half of parole examiner
positions could be eliminated or transferred to fill the
anticipated court support staff positions, largely offsetting
the increased costs cited by OPPAGA.
• The Report also claims that transferring the FPC victim
services to another agency would not save the state money,
because services would have to be provided regardless.
OPPAGA lists the victim services provided by the FPC.
(Report, pgs. 6-7.) The problem here is that if OPPAGA
had researched what victim services the FPC is authorized
to provide.,compared to what is being provided, it would
have discovered that the FPC is providing more than it has
authority to do. See, Florida Statute Chapter 960.

.24

I

• And finally, the Report discusses transferring the FPC
clemency investigation duties to the governor's office under
the Florida Clemency Board, but claims that would cost
more also as the transferred staff would have to be paid
higher salaries and receive more' benefits as employees of
the governor's office. (Report, pgs. 7-11.) The best solution

11

- - ";;1,4 .1

ji;;

I

Florida Prison Legal Pe~pectives

Incentive Gain-time
Is Not Properiy
Considered a Form of
Discretionary Early Release

longer than the mandatory-minimum portion or when
incentive gain-time is lost through disciplinary action.
Therefore, the appeal court granted Mastay's certiorari
petition. CP.J8Sh·,the. lower ~lJ!l's ot:d~, and remanded for
further action COnsistent WIth Its opmlOn. . '
Mastay v. McDonough _ So.2d--, 31 Fla. L. Weekly
01350 (Fla. lilt DCA 5/11/06).

In an opinion filed May II, 2006, by ~e First District
Court of Appeals, it was held that incentive gain-time is
not properly considered as a form of "discretionary early
release" so as to allow the FL Department of Corrections
to refuse to award incentive gain-time during any
mandatory-minimum. portion of II" sentence imposed
pursuant to § 893.135, Fla. Stat
That finding, which has resulted in the FoOc baving
to award incentive gain-time to 'a significant number of
prisoners from whom the Department had withheld sUch
awards, came about in a case filed by prisoner Broce
Mastay.
Mastay had filed a petition for writ ofmandamus in the
circuit court challenging the FOOC's determination that be
was not entitled to earn incentive gain-time while serving
a mandatory-minimum term for trafficking in cocaine
pursuant to § 893.135, Fla. S-. The FDOC argued that §
893.135(3). which provides that any person sentenced
under that section to a mandatory-mini~um term is not
eligible for any form ofdiscretionary release. allowed it to
not awanJ incentive gain-time during such, a term. The
circuit court agreed and denied Mastay's petition. Mastay
then filed for. certiorari review by the appeal .court, .
asserting that the lower court's denial w8s error because. it
was a departure from the essential requiremelrts of law.
The appeal court agreed with Mastay.
The appeal court noted that the legislatuJe has not
defined "discretionary early release," bUt that a review of·
§ 893.135(3) and other mandatory-minimum statutes
supports a cooclusion that incentive gain-time is not a .
form of"discretionmy early release.."
.
The court pointed oUt that in 1999 when § 893.135(3)
was amended to exclude persons serVing maodatoryminimum terms under that statu1e fiom being eligible for
discretionmy early release, at ODe point the proposed
legislation also included prohIbiting eligibJ1ity, to earn
"any form of gain time." But that provision W1W removed
before the bill became law. Thus, indicating the
Legjslature's intent not to prohibit earning incentive gaintime under that statute. ' .
.
. ~urth,er, the court pointed out that in oth~ mandatorymmunum statutes, whenever the Legislature has intended
that gain-time is not to be earDed when sentenced under
the statute it has used explicit language to that effect.
Which. the Legislature did not include in § 893.135(3).
Finally the court noted that while awarding incentive
gain-timc is discretionary. it will not ncccssanly result in
early release before the mandatory-minimum portiQl1 of a
sentence has been served, especially when the sentence is

[Note: The FDOC alm~st immedi~ly begaIi calling
prisoners up who had been sentenced under § 893.135
informing them that past incentive gain-time will be
awarded to' tbem once the above opinion was issuededitor] _

From the editor•••
It was another rough year for Florida's paroleeligiJ,lle prisoners•. Once again legislation was introduced
to abolish the cabal of victim advocates and former police
who now make up the parole commission, and who are
paroling fewer and fewer each year, in favor ofa different
system that might actually have worked, or at least could
be no worse. But. once again, just like last year, 'the
Commission survived with parole-eligible prisoners the
losers.
We, and I use that term because I.~ a parole-eligible
prisoner. got our hopes up that finally there might be some
relief for us. We are Flori~'s longest serving prisoners,
except for maybe a few on death row. We are made up of
those who were sentenced before 1983. to often
outrageous sentences, before parole sentencing was
abolished that· year as unfair in favor of guideline
sentencing. We are also made up of those·sentenced for
cap~ felonies up to 1995 and who received life with
eligibility for· parole only after 2S years. In Sept. 'OS there
were only 5,178 ofus left in prison.
Over the years we have watched thousands of other
prisoners come and gO. Some more than once. many for
the same crimes we were convicted of. With die diffCreoce
being their seutences were fixed, while we .suffer UDder
the ~~ thumbs of the ~ at the. parole
COIDDlISSlOD, ~ jobs would c:eae to exist jf we were
all paroled. As loog as they exist, there's little cIuuK:e of
that happening. Five year setoffs between hearinp;
ge~ng right,to the door and having it slantmed shut with a
suspended date; paroling a few each year only to revoke
the parolees 'of three. four. five times that number for
minor technical violations and returning them to prison for ,
10. 15,·20 years a wop, is now the nonn. \\11atever it
takes to keep the "parole" in Parole Commission.
The commission itself reports that only 10% of its
time is actually spent on parole· activities. yet it keeps
chugging along. convincing the Legislature to give it a
new job every li:w years so it's hanler to ~t rid of. While
some legislators finally seem to have it figured out that the 2. S

Florida Prison Legal Penpectives
commission is a waste of taxpayers money, others defend
it tooth and nail, to the extent of having a legislative audit
office report the commission is doing 'a fine job (See,
OPPAGA Report in ,this i~ue). This, while two of the
three current commissioners still have cream on their
whiskers ·from when' the former commission chairman
Jimmie Henry' was raiding the agency's coffers just three
years ago. I sometimes imagine the three. up on their
bench like three monkeys-seeing, hearing, nor speaking
any good of those whose lives they govern on whims.
Be that as it may, I' personally; and m81yothers that I
know, believe it's time something has to change. In this
issue of FPLP, you'll see that I and others are working to
change the Commission. Other information is provided in
this issue so everyone can understand the recent
legislation to abolish the Parole Commission and to help
you form your opinion of why it failed. It is our intent at
FPLP to provide expanded coverage of the parole situation
in 'future issues. If you have any information about the
Commission or parole that you think might be useful, let
us know about it. Ifpossible, please send it directly to me
at: Bob Posey, 046087, Sumter CI 9544 CR 476 B,
Bushnell, FL 33513. I can't receive mail from other
prisoners, however.
I'd like to tell all FPLAO members and readers of
FPLP that we depend on your support to publish .FPLP
and fund the projects that we take on. Recently, we've had
to cover a lot of court filing and service fees on the Parole
Project and more cases are planned. There will no doubt
be appeals that have to be taken, with each requiring a
$300 filing fee. Membership dues won't cover all that and
publishing FPLP, so donations are needed. In the last issue
we asked all parole.:eligible prisoners to donate just $5 to
give us a war chest to work with. The reality is many have
been in prison so long that have nothing, w~ know that.
But we ask everyone to donate what they can. no matter
how small or large, it all adds up and contributes to the
cause. Thank you.
Spread the word, encourage others to become an
FPLAO m~mber. Together we have caused positive
change in the past, .and together we'll do so in the future.
Wishing everybody well, Bob Posey.•

MEMBERSHIP RENEWAL
Please check the malUng 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. RJease renew your
membershIp by completlng the above form and mailing It
and the appropriate dues amount to the address given a
month or two before the date on the malllnQ label so that the
membership ro'ls and mailing list can be updated withIn
plenty of tlme. Thanksl

26

- NOTICE Thl' lIlaililll!, ;lIldrl'ss for Fl'J...\(), 11Il'., :llId
Florida I)risol/ !.l'gllll)I'I'SI'l'cfil'l's (1'"1'/./») has
l'Il:llll!,l'd. Thl' nl'\\' add n'~~ is as 1'0 II II\\'S. I'kasl'
sl'nd all mail for l'ilhl'r 1-'1'1.:\0, 11I1'., or ','1'1.1' til
this Ill'''' addl'l's.s:
1'.0. Box 1~ II
Chri,stmas 1-'1. .n701)-I~11

More Prisons Coming
The 2006·2007 state budget that
was approved by the Legislature and
signed by Gov. Jeb Bush in May,
2006, approves $2.5 million for new
prisons. Reports are that a new
prison will be built in Suwanee
County, which purchased private
lan~ and gave it to the state in hopes
of gaining a major prison holding up
to 1,500 prisoners. The county
expects such a prison would create
400 to 500 jobs for county residents.

~~[~S0!iU!irc!iC:!iN!iPR,!E=5!i/3!i0/!i063] ==~

Florida Prison Legal Penpectives

CA - The head of California's
Department of Corrections and
Q.
Rehabilitation,
Roderick
Hickman, resigned in Feb. '06.
Hickman had been under fife by
state legislators, union officials,
and prison watchdog groups, who
all have different agendas
concerning the prison system.
The last straw appeared to be
of
Hickman's
criticism
commitment to break the "code of
silence" that prevents prison
guards from reporting misconduct
of fellow guards. Undersecretary
Jeanne Woodford is acting as
interim secretary uptilthe position
is filled by the governor.

CA. - Dming Maf '06, over 1,100
prisoners at eight state prisons in
Northern and Central CA became
sick from a bacterial disease
called campyJ,obacteriosis that
required the 'hospitalization of
some of the piisoners.. Symptoms
included fever, headache, stomach
Cr8mPS, diaiThea, and vomiting.'
Ten prison employees also
contraeted.the disease.

.

CT - State officials announced in
'P6 that they are
May
investigating .allegations that at
. least eight guards at the state's
wornell! prison' had inappropriate
sexual . contact with prisoners.
The CT DOC is reviewing the
claims and forwarded them to the
state police for ~ssible criminal
charges against guards working at
the Janet S. York Correctional'
Institution.
FL - On Feb. 25, 2006, Florida
prisoner Dwight '"Tommy" Eaglin,

30, was convicted by a jury of
capital
murder
for
killing
Charlotte Correctional Institution
prison guard Darla Latbrem, 38,
and prisoner Charles Fuston, 36,
with a sledgehammer while trying'
to escape from the prison in 2003.
Eaglm was sentenced to death for
the murders by Judge William
Blackwell on Mar. 30. Prisoners
Stephen Smith, 44, and Michael
Jones, 49, Eaglin's co-defendants,
are scheduled for trial for their
part in the murders later this year.

, ring in w~ch he sold the drugs to
fellow guards and others.
FL - On Dec. 5, '05, four
prisonerS at Glades Correctional
Institution were charged with
smuggling a loaded gun and cell
phones
into
the
prison.
Prosecutors allege Blas Duran, 34,
- Angel Rodriguez, 39, William
Ortiz~Ponce, 36, and Antone
Jones, 39, were going to tum the
gun over to prison officials to
curry favor with them, and that
the cell phones were used to
smuggle the gun into the prison.
An
unidentified
informant
apparently sought to curry favor
too when he allegedly informed
on the plot in June '05. The gun,
a loaded automatic, was buried
under a sidewalk at the prison.

FL - Under legislation passed in
May '06, Florida's four countyoperated juvenile boot camps will
no longer use physical or
psychological intimidation on
prisoners. Instead, the programs
will
be
renamed
Sheriff's
Training and Respect programs
and will focus on treatment arid .FL - In Mar. '06, former minor
league baseball player Mark
education, not scare tactics. The
legislation was prompted by the
Guerra, who was hir.ed to play
softball for a prison employee
controversy created when 14year-oId Martin Lee Anderso~
team but was being paid as a
died after guards beat and
assistant librarian, pleaded guilty
punched him at a county boot . to a reduced charge of lying to
camp in Panama City.
The
investigators 804 Was sentenced
beating was videotaped and was
to 50 hours of community service
aired by national media.
and $1,400 restitution. Guerra
was originally charged with grand
FL - During Feb. '06, former
theft. Under the plea deal he win
FDOC .prison guard Bryan Griffis
cooperate with FDLE and FBI
investigators who are· looking at
pleaded guilty to embezzlement
related to . a prl$on recycling
corruption within the prison
center 'that he managed and
system. (See FPLP, Vol. 11, Iss.
& 6, pg. 7, for full story.)
5
agreed to cooperate with federal
prosecutors in their investigatiOn
of other current and former
FL - During Mar. '06, Seminole
FDOC employees. Griffis had . County Judge John Sloop blamed
also pleaded guilty in Dec.' '05 for
his attention deficit hyperactivity .
his role in a steroid trafficking , disorder for his having 11 people
arrested for accidentally going to

.'

I 27

Florida Prison Legal Perspectives'
the wrong courtroom. Sloop said
he now takes medication and is
getting mental health treatment.
The FL Supreme Court, who is
considering disciplinary action
against Sloop, said it will base its
fmal decision on the Judici~l
Qualifications
Commissions
recommendation.
FL - On Apr. 26, 2006, the U.S.
Supreme Court heard argwnents
in a case brought by FL death row
prisoner Clarence HiI~ who is
asking the court to fmd that
prisoners can use a civil rights
law (42' U.S.c. § 1983) to
ch8l1enge lethal injection as a
method of execution. Hill has
exhausted his usual criminal
appeals.
HiU's case is being
closely watched to see how the
court will rule in tl:te wake of a
series
of
challenges
by
condemned prisoners across the
nation challenging lethal injection
execution as cruel and Unusual
punishment. They say current
lethal. injection methods conceal
excruciating pain t~ those being
executed. Florida has suspended
executions while Hill's case is
pending before the Supreme
Court.

system will save travel expenses .
and reduce. security risks of
transporting . prisoners to the
hearings. The OK DOC will also
use the system for training and
meetings.
WI - A lawsuit filed during
May '06 claims that Taycheeday
CorreCtional
Institution,'
a
women's prison, is providing
grossly inadequate health care,
causing prisoners great physical
and mental suffering. The federal
suit was filed on behalf of all the
prisoners at the prison. The WI
DOC says it plans to improve
health care over the next six years.
WI - A judge entered not guilty
pleas. on May 3, '06, for Steven
Avery, 43, charged with raping
and killing it woman prosecutors
say he lured to his family's
property on Halloween. Avery,
who stood silent in court, was
charged with Teresa Halbach's
murder about two years after he
was freed from prison for a rape
that DNA testing proved he didn't
do.•

.IN - In April '06, prosecutors
charged nine former employees of
Marion
County
. Juvenile
Detention Center with abusing
their . positions of authority to
have sex with six girls, ages 13 to
lS-years-old.
The former
employees filce charges including
child molestation and sexual
misconduct with a minor.
, :,).

OK - In Mar. '06, the Oklahoma
Pardon
and
Parole . Board
announced that it will use a videoconferencing system to handle
prisoners' hearings that had been
2Sface-to-filce. Offici~ls say the

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Florida Prison Legal Perspectives

........
..................
.

,\:~
=

2006 REGULAR SESSION
BILLS PASSED
On May 4, 2006, the Florida Legislature passed a House
bill (H.B. 585) which authorizes the Florida Department
of Corrections to adopt rules allowing the FDOC to charge
solvent prisoners, or place a lien on indigent prisoners'
inmate accounts, for the cost of making photocopies of
legal documents which must be filed to initiate' or to be
served in judicial or administrative proceedings.
The bill, which, if signed into law, or allowed to
become law without signature, will create Section
, 945.6038, Florida Statutes, and will take effect July I,
2006. Under such new law; and any implementing rules,
the FDOC will be authorized to charge prisoners' up to '
$.15 for each 8Y2" x JI" photocopy made, or the actual
cost ofduplication, if another size copy is required.
If enacted, the new law, entitled "Inmate Litigation
Costs," wiIJ also authorize the FDOC to charge prisoners,
and place liens on indigent prisoners' inmate accounts, for
the cost of pos~ge for legal mail sent to courts or
attorneys when such mail involves a lawsuit.
Obviously, the first part of this legislation came as a
result of the decision in Smith v. FDOC, 920 So.2d 638
(Fla. III DCA 2005), cert. denied, FDOC v. Smith, 923
So.2d 1162 (Fla. 2006). The Smith court held that the
FpDC did not have statutory authority to h8ve adopted a
rule allowing the department to charge prisoners, or place
a lien on indigent prisoners' inmate accounts, for the cost
of legal photocopies. Yet, the department had been doing
so for many years. See, FPLP, Vol. II, Iss. 3, and Vol. 12,
Iss. I, pg. 8.
And it's obvious that the legal mail postage charge
aspect of this legislation was also initiated by the FDOC.
The department has tried 'several times since the mid1990's to, adopt a rule allowing such legal mail postage
charges, ,but had every attempt. to do so defeated by
Florida Prisoners' Legal Aid Organization, Inc. FPLAO
successfully .challenged such attempts administratively
because the FDOC' had no statutory authority to adopt
such a rule. Now the FDOC hopes to have such authority
with this new legislation.
H~wever, such legal postage charge provision may
itself be subject to challenge, at least by,indigent prisoners.
First, such statute would appear to conflict with Section
"The
944.09(1)(0), Florida Statutes, which states:
department may not adopt a rule that requires an inmate to
pay any postage costs that the state is constitutionally
required to pay." And second, the U.S. Supreme Court

has held that indigent prisoner litigants must be provided
with, at least some, free legal mail postage, Bounds v.
Smith, 97 S.a. 1491 (1977). Other cases exist holding the
same.
'Legal challenges may also be brought (some may
already be filed) by prisoners seeking reimbursement for
money illegally taken from their inmate accounts for legal
photocopies before the Smith decision. The FDOC is
responding' ,to grievances filed by prisoners seeking
reimbursement claiming the photocopy fee rule was
"valid" up untiJ the time the Fla. Supreme Court denied
the FDOC . review of the Smith decision. That is an
excellent response for prisoners, as it is so obviously
ridiculous. The Smith' court made it very clear that the
FDOC did not have statutory authority to adopt a rule to
,impose charges for legal photocopies. Meaning the rule
FDOC adopted and used to impose such charges for years
.
was never valid.
Please inform FPLP of any court wins on that latter
situation so we can ~orm everyone.

DNA BILLS
The legislature also passed two bills concerning DNA:
eA bill that passed both the House and Senate
concerning DNA evidence will allow charges to be
brought against someone after the statute of limitations
has run out on a crime, if the charges are based on new
DNA evidence.
.eA bill was also passed that will remove the time
limit and allow anyone convicted, of a felony and
sentenced at any time to petition the courts for DNA
testing when DNA evidence exists. Going beyond
Florida's past DNA law, if this bill becomes law, even
prisoners who pleaded no contest or guilty will be allowed
to seek to have their plea thrown out if DNA evidence
exists that they did not have access to before they entered
their plea. The bill (H.B. 61) would also require DNA
evidence from crimes to be kept as long as the person's
sentence. Effective date: July 1, 2006.
[Note: Bills that are passed by the Legislature are sent to
the governor, who can sign them into law, veto them, or
allow them to become law if not signed or vetoed within
30 days. The governor's action on particular bills can be
checked by calling 1-800-342-1827 toll-free during
business hours or at www.myflorida.comand follow. these
links: Governor's Webpage, News ,Room, Laws and
Legislative Actions. 2006 Legislative Actions. The
complete text of bills that become law will also be'in the
2006 Session Law pamphlets as they become available in
the prison law libraries over the next couple of months.} .29

I

Florida Prison Legal Penpectives

FBI Raids Prison
Canteen Vender's
Offices
GAINESVILLE - The state and federal investigations of the
Florida Department of Corrections (FDOC) continues tc? widen
(See, FPLP Vol. II, Iss. 5 and 6, and Vol. 12, Iss. 2) and has
now east a. shadow on· the ·gubernatorial ambitions of
Democratic State Senator Rod Smith, who has had close ties to
prison officials in the past.
On June 8, 2006, Smith said he would return about S2,SOO in
contributions to his campaign for governor that were made by
his long-time friend Eddie Dugger and his prison visiting park
canteen business, American Institutional Services Inc., which
had its offices raided and records seized by the FBI on June 7
and was banned from serving in state prisons on June 8.
The raid was part of the ongoing FBI and FDLE
investigations into corruption in the Florida prison system,
which earlier this year lead to the forced retirement of FDOC
Secretary James Crosby. The investigations so. far have found
prison officials and employees trafficking in illegal steroids,
embezzling state money, issuing no-bid contracts, and using
inmates to perform personal services. Numerous arrests of
current and former prison employees have been made and the
new' interim secretary, James McDonough, has fired or forced
the resignation of numerous top FDOC officials since he took
over in February.
This latest development in the corruption investigations
indicates that the corruption isn't confined just to prison
officials.
In addition to American. Institutional Services, which
Dugger, SO, started just to get a sub-contract from D-Keefe
Commissary Network (which contracts with the FDOC to
operate prison inmate canteens) to run the prison visiting park
canteens,.also operates an insurance agency, a couple of liquor
stores, a pawn shop, and "George's," a bar near Florida State
Prison popular with prison guards.
.
.
The FBI raid on American Institutional Services offices in
Gainesville lasted twelve hours and records were seized. The
FBI is not saying why they raided the offices and Dugger. (who
. reportedly is no relation to Richard Dugger, a top FDOC
official) was not arrested.
According to FDOC records, Edward· Dugger is a
subcontractor to Keefe, a private company that took over
operating inmate canteens in 2004. In 2004 Dugger started AIS
and subcontracted with Keefe just to operate the weekend
visiting park canteens where inmates' visitor purchase food and
snack when visiting prison inmates. Another company, a
vending machine company, had been set up in the visiting pa~k:s
statewide, but was forced out when AIS subcontracted with
Keefe to compete against the vending machines with inmateoperated canteens stocked with Keefe products - a cash-only
business.
Florida's Auditor General has criticized the FDOC (under
James Crosby) for issuing the canteen contracts without bids
and for amending them without Written justification or cost
analysis (Auditor General Report 2005-044).
Recently Dugger had become a political contributor, ~tate
election records show that he personally had conb'ibuted $500 to
Republican gubernatorial. candidate Tom G9l1ager and SSOO to
Democratic candidate Rod Smith. Additionally, his company,
AIS, had donated S500 to Republican Charlie Crist for his ron

for governor and another S500 to Jim King, a Republican
running for re-election to the state senate.
Perhaps more significantly, AIS, which made money by
charging inmate visitors very high. prices in the visiting park
canteens, donated S30,000 to a political group,' Floridians for
Responsible Government,' earlier this year, the largest donation
to the group, which had raised about S90,Ooo to campaign for
Rod Smith.
Smith; it might be remembered, was the Jormer state attorney
in Union County in 1999 when a gang of prison guards beat
death row prisoner Frank Valdes to death. The guards who were
charged for that murder were later acquitted at a trial, that many
people felt that Smith deliberately botched. After all, Smith had
been friends with James Crosby, who was then warden at
Florida State Prison where Valdes was murdered, for 20 years.
Smith defended Crosby when he was ousted as FDOC·
secretary earlier this year, and defended Dugger, a 3Q-year
friend, after the FBI raided the AIS offices, saying he doesn't
believe he would break the law.
Smith said he. knew about Floridians for Responsible
Government and that they were distributing fliers campaigning
for him, but dodged other questions about the group, which shut
down after the AISoffice raid.
.
FDOC Secretary James McDonough said that when the
Keefe canteen contract is up in October '06, that it will be rebid.
McDonough also has contracted with a management consultant
firm, MOT· of Amerjca, to review and repon on the entire prison
system. The firm will be paid $900,000 to review, analyze, and make
recommendations about moc internal investigations. contracting,
personnel administration, infort11ation technology, health services,
prison operations, and probation operations, in addition to other areas.
MGT has agreed to have a final repon on McDonough's desk by the
first week ofAugust.
As related to the AIS fiasco, Keefe said it will take over operating
t~e prison visiti~g park canteens.
[Sources: SL Pe/e;sburg Times. Gainesville SIDI, The Ledgtr. Miami
Herald, June 9, 2006.] •

Flagler Beach Police
Officer Has Cases
,Dismissed
Flagler Beach Police Chief Roger Free has asked. the FDLE t.o
investigate an officer whose credibility has come under fire after hIS
arrest ofa state attorney's daughter.
.'
Free said he asked the FDLE to look into findings by a Flagler Co.
grand jury and State Attorney John Tanner that Flagler Beach Police
,Officer Nathaniel Juratovac :is simply not believable."
. In mid-May Tanner issued a statement saying he plans to dismiss all
. pending criminal cases "based solely" or "dependant in any material
way" on Juratovac's testimony. No one has stated that cases where
Jurarovac's testimony resulted in a conviction and sentence will also be
reviewed.
.
Juratovac's March '2OOS arrest of Lisa Tanner, John Tanner's
daughter, set ofT a chain of events that resulted in two Flagler Co. jail
guards' arrest. In early May. '06 a grand julY charged Flagler Co.
sheriff's Sgt. Belly Miller Lavictoire, SO, and Cpl. Brian Pasquariello.
28, for strapping Lisa Tanner into a restraint chair after Juratovac
arrested her. Charges were later dropped against Lisa Tanner.
Prisoners who were arrested or testified against by Juratovac need \0
follow up on this situation, It may provide an Issue for legal relief.
[Source: Day/ona Bch. News Journal. S/I8I06, pgs lA and 9A Thanks
to E. Walker for bringing this to FPLP's attention.]

Florida Prison Legal Perspectives
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PRISON LEGAL NEWS

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VOLUME 12 ISSUE 3

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