FLORIDA PRISON ,LEGAL

~-:'ers

1ectives
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ISSN# 1091-8094

. VOLUME 14 ISSUE 3

MAY/JUNE 2008

'- Florida' Parole CommissionJ nst Keeps on Going"
and Going

842. The title of that bill indicated that it would relate
to the FPC. However, as that bill was simply a
"placeholder." it had no accompanying text. Every
year similar bills ~e filed by various legislators to
hold a place open just incase they want to later add
text
to such bill on a particular subject; Although Sen.
ike the Energizer Bunny. the' Florida Parole
Dockery never added any text to her placeholder bill
LCommission (FPC) ducks, dodges or shakes off
concerning the FPC, rumors flashed through the
adversity with an indifferent aplomb, and just keeps
parole-eligible prisoner population (and some of their
on going and going.
.
on-line
family members) that said senator was going
Although the FPC was legislatively scheduled to
to try to abolish the FPC and that she should be
be phased out within ten years following .1983, When
supported. It was all nonsense, fueled by a lack of
parole-eligible sentencing was generally replaced
understanding about the bill-filing and legislative
with guide-line sentencing in Florida, here it is 25
process.
years later and not only does the commission still
Having at least some substance to it. there was a
exist. but: it is still .marehing along to its own
bill filed by State Representative Mitch Needelman
autocratic tuneless drumbeat. The ~PC is seemingly
oblivious (and impervious) to criticism and efforts to . (HB-5075) (who also filed bills in 2005 and 2006)
that did concern the FPC. His bill this year did not
dissolve what many consider an anachronism whose
promote drasticaI.1y changing the commission (as his
sun should have set many years ago.
2005-06 bills did), burinstead woulcrhave transferred
But maybe, just maybe, the commission's batteries
the FPC to the FDOC for administrative purposes,
are beginning to run down. For the first time in a long
time the commission did take a hit this year that's - three-member commission intact. That bill did not.
pass.
.
going to put a limp in the FPC's march across the
Next up came a semi-rumor in May of this year,
backs of those unfortunate enough to lie beneath the
that Monica David, current chair 'of the FPC was
commission's totalitarian feet.
going to be replaced. What the situation actually was
First, to dispel this. year's crop of rumors and
is'that FPC commissioner Fred Dunphy's six-year
misinfonnation. Early i~ the legislative process this
tenn, was set to expire June 30 and the Parole
year Senator Paula Dockery filed Senate Bill (5B)

.FAMILIESADVOCATESI'IUSONIlRS

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FDOC ·Prison Guard Killed•. ~
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Seeking Return of Seized Property :
Mail from Readers .. ~
DR Grievance Appeals
Notable Cases

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Florida Prison Le~al Penpe&;tive~
FLORIDA PRISON LEGAL PERSPECTIVES

P.O. Rox 1069
Marion, North Carolina 28752
Publishing Division of:

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FLORIDA PRISONERS' LEGAL AID ORGANIZATION, INC.
A SOl(e) (3) Non-profit Organization
E-mail: fplp@aotcom

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

Editor
Research

Teresa Bums-Posey
Bob Posey
. Anthony Stuart
Melvin Perez

Florida Prisoners' Legal Aid Organization, Inc., P.O. Box 1069,
Marion, NC 28752,' publishes. FLORIDA PRISON LEGAL
PERSPECJ1VES (FPLP) up to six titnes a'year. FPLP is a non-profit
publication focusing on the. Florida prison and crirrilnal justice
systems. FPLP provides a vehicle for news, infonnation, and
resources affecting prisoners, their families, friends, loved. ones, and
tho general public of Florida. Reduction of crime 'and recidivism,
maintenance of family ties, civil rights, improving conditions Ql
confinement, promolingskilled 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 ofmail that is
iecelved and volunteer staff limitationS. all correspondence that Is
received cannot be responded to, but all mail will receive individual
auention. Pennlssion is gnmted to reprint material appearing in FPLP
that does not IndiCate it lSi copyrigJlted provided that FPLP and any
indicated author' lire identified In the reprint and a copy of the
publication In which their 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 an~ may Not contain sufficient
lnfbmmtlon to deal with a legal problem. FPLP is automatically sent
to all members of FPLAO. Inc. as a membership benefit.
Monibershlp dues for FPLAO, Inc.. operate yearly and are SIO for.
prisoners, SIS for family members and other private individuals. S30
for attorneys, and $60 for agencies, libraries, and Institutions

2

Qualifications Committee ' had been accepting
applications for Dunphy's position. On·May 30 it was
announced that there were three finalists for the
position: DUnphy,to relaiti the position; Hieteenthia
"Tina" ~ayes, cUrrent FDOC Director of Initiatives;
and term-limited StlJte Representative Curtis
Richardson, D-Tallahassee.. There was pressure
'attempted to .be added to· pick either Hayes or
Richardson over' retaining Dunphy when the
mainstream media raised a question about diversity.
Both Hayes and Richardson are black, while Dunphy
and the other two commissioners,· Monica David and
TenaPate; are white. [t has been an all-white
commission for years, although the majority of those
under FPC control are black~
A decision was expected by the Governor and
Cabinet on Dunphy's commission position June 1'0.
However, on July 3 a staffer in the Governor's office
informed FPLAO staff that the decision was still up
. in the air.
"
. As for ~e "hit" taken by the FPC, there hasn't
been any rumors or apparent knowledge about it
among parole-eligible prisoners. The Legislature cut
the FPC's operating' budget for the 2008-09 Fiscal
Year from S9.69 million. (that it received in the 200708 FY) ,to S8.1 million. That reductio~the first
significant cut in the FPC budget in a long time"has
forced the commission to layoff 17 of its 131
employees and leave 7 vacant job positions .unfilled,
~ total loss of 24 positions. Hopefully next year the
Legislature will whittle away some more.
,
For now the FPC will continue beating its tin
drum and marching aimlessly around on the lives of
those it is keeping captive forthe·sake ofjob security.. ·
As for factS about the cominission, they speak for
~emselves. .
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As of July 1,2007, there were 5,112 Florida state
.prisoners who were parole eligible. Only 587 Florida
offenders were actually on parole. During Fiscal Year
2006-07 (the latest year for which numbers 'are
available 'at this time) only 27 Florida prisoners we~
granted parole. However, ~onsistent with the F?C's
recent policies, during the same period 73 parolees
had the.ir paroles revoked and they were returned to
prison. Of those revocations, 70 were for technical
violations; while only 3 were for committing a new
crime.•

Florida Prison Legal Perspectives-

FDOC Guard Killed
at Tomoka CI

to the vertical. However, there is no report that Fitzgerald's'body
alann ever went off, as it would almost had to have done if she
struggle~ with Hall, as officials claim, while wearing the small '
beeper-sIzed, belt-worn device, especially if she fell to the
ground before or after being killed.
Fitzgerald is the second female Florida prison guard to be
killed on' the job. Both were killed while supervising high
custody, knowingly violent prisoners on their own.
S?ortly after .being charg~d, Hall was transported by prison
0f!iclals to Flonda State Pnson, the state's maximum-security
pnson. _

DAVTONA BEA~H- A prisoner accused in the murder of a
female prison guard at Tomoka Correctional Institution on June
25, 2008, was charged with first-degree murder the following
day, officials said.
Prisoner Enoch Hall, 39, ambushed ana killed prison guard
Donna Fitzgerald, 50, about 7:30 p.m. inside a welding shed at
the prison. According to the charging affidavit, at some point on
the 25 1b, Hall was discovered to be missing from his job at the
PRIDE Heavy Equipment Renovation Plant located on the
FDOC Prison Guard
Tomoka CI ~ompound. Fitzgerald· allegediy went looking for
, Hall and found hiin when she opened -the door to the welding
Gouges Out Prisoner's
shed. Hall then stabbed Fitzgerald several times with a piece of
Eye
metal formed into a knife and· then hid the weapon in a nearby
concrete block wall claims the affidavit.
Florida Department of Correction's' prison guard (in a rare
Hall admitted that he had repeatedly stabbed Fitzgerald and
Ainstance considering the wide-spread physical abuse of
hid the makeshift knife in the wall, officials. said. Whether such
prisoners that is again occurring since fonner FDOC Secretary
"confession" will be admissible in court remains to be seen.
Jim
McDonough resigned a few months ago) has been accused
When Hall's mug shout was shown on news programs that
of
gouging
and causing a prisoner to lose an eye.
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reported on the 'incidem, it was clearly evident that prior to
. William Wilson, 25, a guard at Charlotte Correctional
being booked Hall had been severely beaten himself at some
Institution, located near Punta Gorda in southwest Florida, was
point.
fired
by the FDOC and arrested and charged on aggravated
Initially it was reported by the media that Fitzgerald had also
battery
after an investigation into the May 21 incident.
been raped. But reports from the Sheriffs Office and state
According to an FDOC investigative report, a prisoner,
investigators from the Florida Department of Law Enforcement
handcuffed and shackled, was being transferred out of his cell
did not mention that a rape had occurred or was suspected.
.
":hen
Wilson intentionally ~ouged th~ prisoner's right eye. with
Officials refused to confinn or deny that a rape occurred. The
hIS hand. The eye later had to be removed by medical staff.
initial reports of such may have been speculation considering
Wilson was released on bail after spending one night in
the charges that Hall was in prison for.
jail.
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: Hall was sentenced to life in prison in 1993' for a kidnapping
in' Pensacola. He was also convicted of sexual battery and
aggravated battery with a weapon on the 66-year-old woman
who he was convicted of kidnapping. Hall also had a 40-year .
Florida to Build
federal sentence after pleading guilty to kidnapping a 23-yearMore Prisons
old woman from a Pensacola parking lot in 1992 and taking her
to Alabama. And he was' also given a 1.2-year sentence for an
earlier attack while in prison.
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The politically popular "lock 'em up and throwaway the key"
According to a friend of fitzgerald, Nancy Duke, Fitzgerald
approach to crime in Florida scored another victory this year.
had told her that her life had. recently been threatened by a
The recently completed regular I~gislative session was all
prisoner. Duke could not say that it was Hall who had
about
a state budget crisis, cuts had to be inade in all areas,
threatened Fitzgerald, but did say it was obvious to her that it
legislators
claimed. There were even threats to cut the
must have been Hall who made the threat and then waited for
Department
of Correction's budget, which the department
"the perfect opportunity" to catch Fitzgerald alone. FDOC
responded
to
by threatening that if its budget were cut it might
officials said they did not know Fitzgerald had been threatened.
of prisoners and prison overcrowding.
mean
early
release
It's odd that Fitzgerald didn't report it. ·Normally a prisoner
Backing up the t~at, the FDOC scrambled to erect tents at
would be immediately locked up in confinement for making
several prisons to house prisoners, which successfully turned the
such a threat.
tide in FDOC's favor. (See: FPLP, Vol. 14, Iss. 2.)
Other oddities exist that mayor may not be clarified as the
At the eM of the session, not only were no cuts made to the
case against Hall proceeds.
prison
system's $2.27 billion budget, but the FDOC was given
A Department of Correction's representative told reporters
almost
$300 million more to build new prisons and another $86
that a head count was being conducted when Hall was
million to operate a private prison.
discovered to be missing. However, a prison secretary said the
In an apparent move to ensure the adage that "if you build it.
incident had nothing to do with a head count.
.
they
will come," the Legislature cut public school funding by
Additionally, every FDOC prison guard is required to wear ~
$900 million this year. _
wireless body alarm at all times. Such alarms can be set off,
sending a signal to the prison' control room and resulting in an
immediate alert to' all officers to respond, by either hitting a
button on the alarm device or automatically if the device is tilted

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Florida Prison Legal Perspective~
However, the defendani need not establish proof of
ownership in order to allege a facially sufficient claim for
, the return of property. See: Stone. supra at 660-61.
by Melvin PereZ
If the court deems the motion to be facially sufficient,
then it must conduct an evidentiary hearing or attach those
n this article I will explain the procedure one must
record documents that' conclusively refute defendant's
follow when seeking the return of property seized , claim. See: Clound v. State, 801 So.2d 964 (Fla. 2nd DCA
during a prisoner's arrest or pursuant to a lawful
2001).
inves~igation. This article does not address Forfeiture Act,
At the evidentiary hearing, the trial court must first
sections 932.70 I to 932.707, Florida Statutes, or property
ascertain whether the property was confiscated by a taw
illegallytaken from a prisoner by FDOC.
.
enforcement agency in connection with, a criminal
Section 705.105(1), Florida Statutes, provides that title
prosecution and whether the property is still in the
to unclaimed evidence or personal property lawfully'
agency's possession.
,
seized pursuant to a lawful investigation that is in the
If the state can show that the property was entered into
custody of the c0l.!rt or clerk as part of a criminal
evidence or that, the state intends to pursue forfeiture
proceeding, or seized as evidence by and in the custody Qf
against the property, the d'efendant is not entitled t9 have
a law enforcement agency, shall vest permanently in the
the property returned. See: Stone. supra at 661.
law enforcement agency sixty days after the conclusion of
In addition, the defendant is not entitled to have the
property returned if the state intends in good faith to bring
the proceeding.
.
Decisional law 'has extended this sixty-day limit to
another criminal prosecution at which the items would be
include resolution of .post-conviction remedies. See:
admissible in evidence. See: Oleandi v. State. 731 Soo.2d
Sutherland v. State, 860 So.2d 505 (Fla. 4th DCA 2003).
, 4, 6 (Fla. 41h DCA 1999) and Kern v. State, 706 So.2d
1366, 1370 (Fla. Sth DCA 1998).
Likewise, the defendant is not entitled to return of
Court's Jurisdiction
A trial court's jurisdiction over a criminal proceeding
property during the pending of civil forfeiture
includes inherent. authority over· ,property seized or
proceedings, even in the absence offormal charges against
obtained in connection with ,the proceeding and thus held,
the owner. See: City of Miami v. Barclay, 563 So.2d 203
.in custodia legis (in the custody of the law). See: 'Stevens
(Fla. 3rd DCA 1990).
nd
v. State, 929 So.2d 1197, 1198 (f.la. 2 DCA 2006).
In contrast, if the state is unable to connect the items to
Further, this authority continues beyond the
specific criminal activity, and no one else can be identified
termination of the prosecution, thus enabling the court to
who can demonstrate a superior possessory interest in the
direct the return ofthe property to its rightful owner. See:
property, it should be returned to the defendant or to such
person(s) as he or she may designate. See: Stone. supra at
Eight Hundred. Inc., v. State, 781 So.2d 1187, 1191-92
(Fla. 5th DCA 2001).
661.
Moreover, when a defendant seeks the return of seized
Should the court dismiss the motion as facially
insufficient, it shall identify the deficiencies and grant
property as the true owner, the applicable procedure is
similar to the procedure for the consideration of a motion
leave to amend within a reasonable time. See: Har/dess v.
for post-conviction relief. See: Fla.R.App.P. 9.14I(b)(a)
State, 32 Fla. L.Wkly (D) 792, 793 (Fla. 2nd DCA; March
23,2007).
.
and Stone v. State, 630 Sp.2d 660, 660 n.I (Fla. 2nd DCA
1994).
Summarily Denial
If the court summarily denies the motion for return of
Filing The Motion
property pursuant to the sixty-day time bar, the. trial court
First. the defendant must file 'a facially sufficient
motion for the return of property. See: Brown v. State, 613
mu'st attach those portions of the record showing that the
property was seized pur~uant to a lawful investigation or
So.2d 569 570 (Fla. 2nd DCA 1993).
held as evidence. See: Burden v. State 890 So.2d 566 (Fla.
To ~e facially sufficient, the motion must allege that:
2nd DCA 2005) and Clound. supra.
(1) the property at issue was his or her personal property;
(l) that the property was not the fruit of criminal activity;
Appealing The Denial
, An appeal from an order denying a motion for return
and,
of property is governed by Fla.R.App.P. 9.14l(b)(2).
(3) that the personal property was not being held as
evidence. See: Burain v. State, 765 So.2d 880, 880 (Fla.
See: Clound, supra.
The defendant shall file a notice of appeal as prescribed
2nd DCA 2000).
by rule 9. I IOed) with the clerk of the lower tribunal at any
time between rendition' of a final judgment and 30 days
Implicit in this standard is the requirement that the
defendant must specifically identify property at issue.
following rendition. See: Rule 9.900(a} for an ~xample of

Seeking Return of Seized
, Property

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Florida Prison Legal Perspectives
the notice of appeal and Rule 9.020(h). for more,
information on rendition. Copies shall be served on the
state attorney and attorney general.
'
If the motion was denied' without an evidentiary
hearing, no briefs shall be required, but any appellant who
wishes to submit one, must do so within 15 days of the
filing of the notice of app~al. The court may request a
response from the appellee 'before ruling. See: Rule
9.141(b)(2)(c).
If the motion' was denied after a hearing, the prisoner
must file designations'to the court reporter, however, if
one is not filed, the notice of appeal shaU. serve as the
designation to the court reporter for the transcript of the
evidentiary hearing. See: Rule 9.I41(b)(3).
The clerk of court' has SO days from the filing of the
notice of, appeal to prepare the record. See: RuJe
9.141 (b)(3)(blei).
Further, appellant may direct the clerk to include in the
record any other documents that were before the lower
tribunal at the hearing. See: Rule 9.14 I(b}(3}(b)(ii).
. The initial brief, shall be ~rved within 30 days of
service of the record or its .index. Additional briefs shall
be served as pres~bed by rule 9.210.

~avid

If the record does not support the summary denial, the
DCA must·reverse. See: Harkless, supra, and Ferguson v.
State, 873 So.2d 581 (Fla. 3rd DCA 2004).
I hope this information may help those seeking the
return of propeny lawfully seized during their arrest or
pursuant to a lawful investigation. _

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FPLP'
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W. Collins, Attorney at Law

Former state prosecutor with more than 20 years of criminal law experience
"AV" rated by Martindale-Hubbell Bar register of Preeminent Lawyers

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Your, voice in Ta~labassee'repr~senting prisoners in all areas orpost-convi~tion relief:
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Monticello, FL 32345
(850) 997-8111
"The hiring ofa lawyer is an important decision that should not be based solely upon advertisements. Before you decide,
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Florida Prison Legal Perspectives

Dear FPLP: 1 have been a member and strong supporter for FPLP with donations. 1 would Hke to address the problems
I'v~ witnessed in the last 5, to 10 years while being incarcerated in Florida prisons. InmateslPrisonerslConvicts serving
time in Florida Facilities, Institutions not Prisons, you all need to wake up~ grow up, and open your eyes and make a stand
legally. Notice the change of food service Trinity from Aramark. The food now is sour, old, stale, anq lesser portion..
Notice the security. staff is manipulating you all into being against each other. They are actually breeding, promoting and
provoking you all into snitches. Notice a lot of facilities do not post, hand out pamphlets for HIV, AIDS awareness, TB,
Syphilis, Hepatitis. Notice how correction officers are not earning rank but being given rank because of who they know.
fSP has become the snitch capi~I, homosexual capital and police/inmate relationships ilr~ astronomical here. Define
unity, loyalty, prison, and .humane human. All you fools are doing is securingthe next sorry; lazys uncaring officer a job
and retirement benefits for him and his generation on down. What are you gaining? Still incarcerated, release date still the
same, is a few deodorants, cigarettes, chips, cookies worth your name,character, or life? Study law, grievance procedures,
your rights and execute it because the officers go home everyday laughing at you all.. Black-Mexico
Dear FPLP: I. a~ a Lifer, doing time since M.arch 1983. 1am one of many thousands left on parole. I do not have family
in Florida. What family is alive are far and few. I do not receive funds to live comfortably as so many prisoners do. But I
consider FPLP worth the sacrifice of whatever funds I could get. I am a revolutionary,not of violence; I've matured past
that stage. I've obtained my GED and many educational & vocational skills while incarcerat~d now 25 years. FPLP is the
only prisoners"'vanguar~ legal rights organization in Florida. My awareness of this and the dire need for thiS organization
on behalf of prisoners & their families is one to live, serve & fight for. Tough times are challenges for tough people. The
times are rough & tough, more so nowthan:ever. Economically as well as politically, don't give up. EC HCIA
Dear FPLP: I have asked my family to contact you but they have not responded to my request for some reason. 1have
the FPLP paper for several years and finally bought a sl\bscription last year because I liked what you were doing.
Mainly the parole project: For the last 2 years FPLP has been hot on the parole commission's heels. Then all of a sudden
this year nothing. There are many of us prisoners here at Holmes that have a vested interest in ~hat happens with the
parole issue. Personally I will complete my 25 year mandatory portion of my sent~nce in a few months and the parole
commission h~ set me off to 2058. I've never even had a DR or CC, I'm 56 years old. I've had 2 heart attacks, a stroke
and just had op.en heart surgery Dec. of 06. So not only a lot of men here want to know what's going on. I have family and
friends who will email orcall!lnyone, we just need guidance. RB HCI .
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~ol1owed

Dear FPLP: I was reading'in (FPLP) about different things. 1myself am under the sentenci~g guidelines for life, 25 years.
I have been locked up for 22years.-1 filed my ex«!cutiveclemency on April 5, 2006. I haven't heard anything as of yet. 1
am an elderly person at Lowell CI. Some of the ladies have been locked up for 30 years and they can't get a decent parole
date. Maybe they have been in trouble or had too many DR. Myself I have a perfect record. I'm supposed to see them in·
2009. When people get our ag~ and its their first time if} prison looks like they would let us go horne to'our family. I am
glad you all are figQting for our lives. When you are 70 they should let you go, I don't think women or men'our age would
return. BPS LCI
Dear Editor:. Elderly and infirm prisoners; such as myself, who suffer with medical problems are routinely transported to
the s~called medical center (RMC) at Lake Butler. During our stay at Lake Butler we are subjected to physical and
psychological abuse by prison guards. The "medical center" at Lake Butler employs the most sadistic guards in all of
Florida, the reason for this is to discourage the elderly and infirm from seeking costly health care. Prisoners are treated so
badly by the sub-110man guards that they often sign medical refusals just to get away from there. This is just what the
FDOC wants. I am a 58 year old man, I need health care but I refuse to go back to the "extermination camp" at Lake
Butler, and I am not alone. KR SCI
To Whom It May Concern: I want to thank FPLP for the newsletter you put out and the up-to-date cases you use in your
articles. Because of SQme of them I waS recently appointed counsel to help. me in my appeal. rhere are4 of us at this
6 facility from Florida so I share with them when I receive one. Thanks. SR AUCF
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Florida Prison Legal Perspectives
Dear FPLP~ Bob Posey couldn't have been more on point whe~ he pen~ed his recent "From the Editor'; segment in the
February 200& issue of the FPLP, with one minor exception; he only flit the tip of the, preverbal "iceberg.'" After more
than 15 years in prison both'within:and without the state of Florida, I have never run across a set of more unprofessional
and power hungrY officers and civilian personnel as I have at Mayo CI. You' know, 'you can always tell a person has never
experienced power or authority over another when'the individual sees him or herselfas a demigod who is ordaine~to
abuse those who have the misfortune tofind'themselves under his authority, This type of behavior is not only evident, but
rampant among the 'security, mailroom and medical staff. at MayoCI. The security'personne,l at Mayo do not ,seem to
know the difference between discipline and humiliation. Nor, have many of them ever heard of the concept of progressive
discipline. Here the officers are so petty and eager to haraSs and humiliate an inmate that if your foot crosses their "yellow
line" you will be required to h.old a "sign" d~recting others to stay on ~e right side of the "yellow line". Other officers
cannot seem to interpret a 'simple memorandum correctly, but instead find ways to interpret it in the most restrictive .
manner possible so they can add their' own' sadistic twist. Yet other officers make 'up their own rules, for example, your
socks are not pulled up properly, you cannot wear shorts in the canteen line during the weekend or during your off duty
evening hours, b'ut my favorite is the one where the officers won~t allow you to exit the canteen line once in line, they call
it being "line ded~cated". ijotwithstanding that the Colonel says the inmates are not line dedicated. Tell the officer this and
all you hear is "I hln this, not the colone1."Keep in mind these rule~ are nowhere to be found in Chapter 33, the PM's or
Mayo's "inmate handbook", bUt'disobey them and you will receive paperwork, if not a free trip to the box for disobeying a
verbal order. Medical and mailroom civilian personnel arejustas bad. There can be no question that Mayo's mailroom
officer walks a very fine line and at time steps over the line when it comes to the unlawful practice of law. This civilian
employee continually chooses what documents she will and will not notarize, what documents are necessary and how
many copies need to be sent, all without ever checking the rlorida' Rules of Procedure. Medical personnel, on the other
'
hand, with the hire exception, are no better. , WJ MCI
Dear FPLP: I am one of your loyal subscribers, I 'have been in DOC for 4 years and have enjoyed and benefited from your
publication S9 very mlich. It has been so incredibly helpful to me. Just last y~ar, thanks to a case· you pl.!blished in the
''Notable Cases" section, I was able to successfully petition for and receive an additional 4 months of Jail Credit time that
had not ever been awarded to me. I. totally thank FPLP for those 120 days. ~ut 'that is not-why I am writing to you today. 1
am writing to you to ask if you could please publish in a near future issue any and all information you may have regarding
the DOC's 2008..2009 budget and just what it means to us inmates. The Florida Legislature just ended it's 2008 session on
May 2nd and there's a whole lot of speculation about what changes. that may be forthcoming. I've read that DOC got
awarded every single penny they asked for, plus an additional $400 ~iIIion for 4 new prisons to be built next year (3 DOC.
1 private). The DOC did not have any budget cuts, bilt education suffered $900 million in cuts. How awful. I remember,
and still have a 'copy of your FPLP' issue from about a year or so ago that dedicated several pages to the DOC budget,
balance sheet and income statement. Any information you could share or clarify with us behind the fences would be so
very much appreciated. SS HCI
'

.

.

"

',-

.

Dear FPLP:.My tum.. Yep,the Parole Commission got me and 'got me good. My 25 year min/mand. sentence is almost
completed and I have 'life after that. I saw a Parole Examiner in January 2008 and he put my Presumptive Parole Release .
date at 2045 based on 2 aggravating factors. TheParole Examiner had me down as a levelS degree felon lSI/life, murder
in the first degree. On 3-26-08, the Parote Commission did not affirm that date and restructured the case. I was changed to "
Sl
l~vel6 degree capital felony murder in the I degree. They listed 7 ,aggravating factors to come up with a PPRD of 9-92937~ That's, almost 1000 years! Check it out. They listed 3 falseaggrayating factors, arid I do ~ean false~ because I was
never charged with any of those 3~ One of the other aggravating factors was my institutional conduct and another is
misleading. That leaves 2 aggravating factors in which I have almost completed this25 ye'ar,minlmand. on. They are
recharging me and making. me do time all over again. What is the '25 year sentence for? The gi-st of it all is that I got
shafted big time. The Parole Commission is using obvious loopholes in doing this. Alot of nerve they have. BS" WCl
,

,

Dear FPLP: Last week I was blessed with reading the Jan/Feb Legal Perspectives. In this issue Bob Posey did an
outstanding job of clarifying the liChildrenin Prison' Rehabilitation Act" and I'm living testimony of this fact. I.e: On Nov
23, 1968,at the age of IS I was found guilty of murder in the ISl degree. April 1969. at the age of 16.I was sentenced to life
in prison (parole eligible), May 9~ 1969, sent to Lake Butler MRC and June 25, 1969. sent to Florida State Prison main
housing unit, "The Rock," July 3. 1969.ti'llnsferred to' Florida State Pris~n East Unit still at the age of 16. At present I am
the. longest Ii~ing.. parole eligible youthful defender' in the DOC. My PPRo was April 20, 2008. On Feb. 27, 2008 the
Parole Commission denied my effective parole release date, despite "7"years disciplinary free record, job offer paying,
$25,000 annually and a place to live. Both approved by the examiner and South Carolina Parole Board. On April 23, ·2008.
I was given an extraordinary review hearing and despite, my family contacting David Mack to speak for me (for a mere

7

.

,

,

F~orid~ Prison'Legal Pe~pectives
'

..
'
$7,~OOrthe commission set my next hearing at 11-15-20.12. Does this sound like the Florida Parole Commission has
compassion for youths who made a mistake at a young age? Bob Posey is correct, ''The Commission will feel safe that irs
future is secure for severa) more decades with new young victims who it will never let go from it until they die." In 1978 I
was. being considered for release (parole) in the near future. However. in June 1978 the Commission's ne~ guidelines came
into effect and in 1979 they gave me a PPRD'of 1994 which had gone up consistently for discipliniuy. Now with 7 years
disciplinary free they extraordinary review me. Oh yeah.they did relent after David Mack speaking and a~ to send me
to Sumter for the liferS program. DC WCI
Dear FPLP: I feel qualified to 'comment on "Florida Gets Sixth Private Prison, to being an undistinguished guest at
Graceville CF since 10124/07. When I first arrived I doubted this joint would ever be fit for human habitation. My opinion
hasn't changed to this day. The ruling regime at GCF basically consists of DOC rejects, unless and until, they go, there
will be no hope here. For a long time there was no law library so to speak here, and ac~ess has taken even longer and
there's still no meaningful access to the courts for inmates at GCF. There's no chow hall.. Can't report their crimes on the
TIPS line. Phone rates are double those charged DOC inmates. Swanson Seryices Corporation runs the canteen and
charges up to ten times the prices DOC inmates pay, on a miniscule range of choices. Most mentally ~II ihmat~s here have
never been seen by psych staff. The dentists keep quitting, as. have many guards. I've read Ch. 33-205.101, FAe, ,and
Chapters 957, 944.105 and 944.710-944.719, Florida Sfatutes. I Still can't understand how reci,divism is supposed to be
reduced by a corporation whose best interest is in expansion of the prison industr.ial complex. Inmates at <;JCF don't have
pillows, no lighters allowed" but smoking is. Not much to the library. The entire chapel is one large room. I 'can~t find civil
words to aptly describe the most disgraceful prison I've ever been to, and I've been to many. GEO Group Inc. is liable in
tort with respect to care and custody of inmates under its supervision and for any breach of contract. Sovereign immunity
may not'be raised by the contractor nor their insurer. Ch{ 957.05(i), Fla. Stat. G GCF
Dear FPLP: I was inspired by your JanlFe~ issue to write a letter to my politicians. As a class we go unrepresented in the
State Legislature. which is partly due to us not making ourselves heard. This is the type of activity every FDOC prisoner
needs to be engaging in, yet there are extremely few besides me. I believe this is doing some good. Even if the politician
just says. "A prisoner writes me the~e eloquent letters. Maybe they're not all bad people. I'll vote against mandatory
minimums or something like that." SB ACI
Dear FPLP: I am clJrrently serving a 36 month sentence in the FDOC and I want to thank you for the FPLAO. It has been
very helpful many times. The reason I'm writing is to tell you about a grievance that I've just filed, where the outcome
could atreet thousands ofFDOC inmates. In June '07 I received a DR for 3-8 (poss. of neg.) after. spending 5 days in AlC
confineme~t. I went to my DR hearing an~ was given the following sentence: loss of 30 days gain time, 40 hours extra
duty. A few days later I learned that not only will I lose 30 days but an additional 40. Ten for the month of the infraction,
which I can understand, and 30 more p~rsuant to F.A.C. 33-60J.I01(5)(a)(2) (disqualification). Right away I say that's .
~double jeopardy. So I start researching, because obviously there's an issue here. If I committed a single infraction and was
. then given a single'sentence, then how are they punishing me more than once? According'to,F's. 944.272, unless I receive
a DR for unsatisfactory rating in a certain month, I am in fact eligible for gain time. Well, after searching for only a short
tiine I find F.~.C. 60 1.1 01(5)(a)(I.,2.,3) were made under F.S.A,. 944.28. Not only does t~is statute say that in order to
. apply 33-601.l0(5)et.al., the inmate must commit a "certain infraction in the criteria," 'see 944.28(a), but if you read
further, 944.28(c) states, in order for it to apply, it m~! be shown on the DR worksheet, form DC6-112E. Just Iike!I
thought, iftbis rule is not ordered and marked as part ofyour actualsenteitce, it is void, and would be double jeopardy not
to mention other Constitutionaf violations like Due Process. The scary part is, there's ,a box on the DC6-112E form that's
suppose to be checked showing there's justification for applying this rule, and out of the hund~ds of inmates I'vet~lked
to, none of their worksheets were checked, nor was it brought up. Vet we were all punished 3 to 6 times more for a single
infraction: As far as 1can' tell D9C simply applies F.A.C. 33-601.101(5) eul to "All Inmates", that receive DRs and are
cl~arly in error. I·will keep you informed to the responses I receive and another inmate is doing a Declaratory Judgment
on this issue. Just another example ofDOC's rule bending and disregard for our rights. TP TCI
'
Dear FPLP: I have ~ Civil Case No. 3':07cvS221MCRlMD. I filed over (II amendment rights to freedom of religion,
expression, the press and to grievance. My religious mail was beingretumed to sender without any appeal and out going
letters were being confiscated as "gang material". All of this by Inspector Ron CaStle. While Ile spent his time tampering
with U.S. mail. officers.from 5 institutions were brought in for a two week IQCk down, Dec 2006; searching for a pistol'
smuggled in by an inmate. Haven't seen you publish that so thought I would let you know. DDP WCI i:!liI.
8

Florida Prison Legal Perspectives

Loren D. Rhoton

I

....__'.p.o.s.tc.o.n.V.ic.t.io.n.A.t.to.r.n.e.y.'_ _..'

• Direct Appeals
,• . Belated Appe~ls
• Rule 3.850 Motions
• Sentence Corrections
• New Trials
• Federal Ha'beas Corpus Petitions
412 East Madison Street, Suite 1111
, Tampa, Florida 33602
'(813) 229-3138'
.
Fax (813) 221-2182
Email: lorenrhoton@rhotonpostconviction.com
,Website: www.rhotonpostconviction.com
The hiring,of a lawyer is an important decision that should not be based solely on advertisements,
Before you decide, ask us to send you free written information a~out our qualifications,

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BUY THE BOOK - ON SALE NOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Postconviction Corner A'rticles.
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A collection of Loren Rhoton's Postconviction Corner article~ is now available in one
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on professional experienoe, case citations, and refer~nces to the relevant rules of procedure
are provided. This book is specifically directed toward those pursuing PQstconviction relief.

To order, send $20.00 in the form of a money' order, cashier's check or inmate,
bank ~heck (no stamps,cash or personal checks please)1:o the address above, or
order online at www.rhotonpostconviction.com.

Florida Prison Legal Perspectives

D. R. GRIEVANCES/ APPEALS
AND
nJDICL\L REMEDIES
BY HOWARD RICHMOND

PART I
This infonnation will answer some of the most frequently asked questions concerning D. R. grievances and.
appeals at the Institutional and Central Office levels as well as filing aPetition for Writ ofMaridamus in the Circuit Court
. and subsequent Appeal or,Certiorari review in the District Court of Appeal.

PROCEDURAL REQUIREMENTS
You must file aD. R. grievance appeal by using a DC 1-303 Form at the Institutional level pursuan,t to Chapter 33.

,

.

103.006 (3) (b) F. A. C. and appeal to the Office of the Secretary pursuant to Chapter 33..103.007 F. A. C., before
.

proceeding to the Second Judicial Circuit Court (Leon County) by PetitionJor Writ of Mandamus pursuant to Rule 1.6~0
(a) Fla. R. Civ. P. (2008).
The types of grievances that may be med direCtly with the. reviewing authority bypassing the informal grievance
step are listed in Chapter 33-10~.006 (3) F. A. C..
The Inmate shaJI state his grievance in Part A. If additional space is needed the Inmate shail use attachments and
.

,

not m,ultipJe copies ofFonn OCI-303. Chapter 33-103.006 (2) (c) F. A. C..
The new one page DC 1-303 Fonn (Revised 2/05) only requires you to submit one copy of the. grievance fonn
along with one copy of any continuation pages.

Inmates in Confinement shall submit the grievance or appeal by placing the grievance or appeal in a locked
grievance box. Chapter 33-103.006 (9) F. A. C.
Amendments .are to be med only regarding issues unknown or unavailable to the Inmate at the time of fiJing the
original grievance and must be submitted within a reasonable time frame' of knowledge of the new information. Chapter
33-103.006 (2) (i) F.

~.

C. The Amendment provision for the appeal to the Secretary is ~ntained in Chapter 33-103.007

(5) (e) F. A. C. "Amended Grievances" must be clearly stated at the beginning of Part A on the DCI-303 Fonn.
o

.

Extensions of time shall be granted when it is clearly demonstrated on a DC 1-30,3 Fonn that it was not feasible to
,

file the grievance within relevant time periods. Chapter 33-103.011 (2) F. A. C:
Pursuant to Chapter 33-103.017 (I) F. A. C.. inmates shall be allowed access to the grievance process without
hindrances: Staff found to be obstructirig an inmates access to the grievance process shall be subject to disciplinary action
•

,

I

ranging from oral reprimand up to dismissal in accordance with Rules 33-208.001 - .003 F. A. C.

TIME LIMITS
You have fifteen (15) calendar days from the date of your D. R. Hearing ·to file a Fonnal Grievance (D. R.
AppeaJ) at the lnstitutionallevel,. (See ChaPter 33-~03.011 (1) (b) F. A. C.) and fifteen (15) calendar days from the

.

.

response on the Formal Grievance to file an appeal to central office. (See Chapter 33-103.001 (1) (c) F. A. C.).

10

Florida Prison Le2al Penpective~
••Where an appealfrom a grievance procedure must be received by the Department within J5 calendar days ofthe
d;ate of the institutional response. under the mailbox 'rule the appeal is deemed "received" by the Departme"""at the
moment in time when th~ inmate loses control over the document by entrusting its fUnher delivery or processing to agents
ofthe state." Gonzalez v. SU\te. 604· So.2d 874, 876 (Fla. 11\ DCA 1992); Pedroza v. Tadlock. 70S So.2d 1005 (Fla. 4lh
,

'

DCA 1998).

Pursuant to 9.100 (c) (4). Fla. R. App: P. (2008), a petition
for Writ of Mandamus challenging an order ofOOC
.
.
.
entered in a prisoner disciplin8Iy proceeding must be filed within 30 days of the rendition of that DOC order. (See also
Ii1
Chapter 95.11 (8), Florida Statutes (2007»; Ortiz
11S4-SS (Fla. I DCA 1999).
. y. Moore. 741 So.2d 1153,
,

.

A Petition for Writ ofCertiorari must be filed ~thin 30 days ofthe C~t Court's final order on the merits ofthe

Mandamus Petition. Rule 9.100 (c) (I), Fla. R. App: P. (20~7). Green v. Moore. 7!'J So.2d 425,426 (FIa. III DCA 2000),
and in the case of an appeal by filing a notice.of appeal to the Circuit Court
to be
. within
.
. 30 days ofrendition ofthe order
,
,

.

,

.

~

reviewed. Rule 9.110 (b), Fla. R. App. P. (2008).

RESP.ONSES. TO GRIEVANCES
AND APPEALS
The rules that set forth timeframes for inmates to file grievances (See Chapter 33-103.0' 1 F. A C.), also set forth
time frames in which prison officials must respond to gri~ances and appeals. C1iapter ~3-103.011(3) F. A C. provides: .
(3) Responding to Grievances.

"

a. Infonnal Grievance within 10 calendar days ...

b. Fonnal Grievance - reviewing authority shall have 20 caI~dar ' days... to take action from the date
ofreceipt
c. Grievance Appeals and Direct Grievances to the Office of ~e Secretary shall be responded to )Vithin
30 days from date ofreceipt .
d. Emergency Gri~ances - Shal1 be responded to within IS calendar days ofreceipt

Subsection (4) provides that unless the
has agreed in writing
oftime, 'eXpiration ofa
~e
. grievant
.,
.
. to
. an.extension
.
.
'

limit at any

steP in the process shall entitle the 'complainant t() proceed to the next
. step of the grievance process.
,

complainant must clearly indicate,this fact when filPtg at the next step.

The

Aultm'W y. Singletmy. 708 SQ.2d 1004 (Fla. lilt

DCA 1998). Ifthe inm8te does not agree to an extension oftime at the central offi.ce level ofteview, he shall be entitled
to proceed with judicial remedies, as he would have exhausted his administrative remedies.

Reasons for fetuming ofgrievances or appeals without p~g is contained in Chapter 33-103.014 F. A C.
~e degree of investigation is determined by the complexity of the issue

Chapter 33-103.006 (6) F. A. C.

and the conteQt of the grievance.

.

The original grievance andbne copy shall be returned to the inmate. Chapter 33-103.006 (6) (a) F. A. C.

.

.

"

,

'

The response to the fonnal grievance shall include the statement "you may obtain further administrative ,review of
your complaint by obtaining Fonn DC. 1-303, providing attachments
as required by Chapter
33-103.007 (3) (a)
and (b) and
.
,
.
'

.

'

'forwarding the complaint·to Bureau'ofhunate- Grievances Appeals, 2601 Blair Stone Road, Tallahassee, Florida
' . 323992500." (See Chapter 33-103.006 (7)F. A. C.).
'

11

,

.

Florida Prison Legal Perspectives

COPY 8ERVICE
copying semces for doCuments to be included as auachments to a grievance orgriev8Jl~ appeal shall be handled
according to Chapter 33-501.302 F. A. C. (See Chapter 33-'103.015 (8) F. A. C.). Copying services shall not be-pr~vided
to make copies of continuation p~es .

. •JUDICIAL REMEDY
CIRCUIT COURT

.

.

The exhaustion of available Administrative Remedies is a condition precedent to judicial review of a contested
agency action. Jackson v. Parkhouse. 826 So.2d 478,479 (Fla. 1~ DCA 2002). The Circuit Court can dismiss a Petition
for Writ of Mandamus without ])!ejudice and allow a reasonable tiine (30 days) showing ~austion of Administrative
remedies. Johnson v. McNeil, 33 Fla. L. Weekly 0930 a (FIa. 1:.1 DCA April 3, 2008).
If you fail to exhaustAdministrative Remedies the Circuit Court will reject the Mandamus Petition.
The proper method of ~king judicial review of aD order denying an administrative appeal in prison disciplinary
proceedings is to file a petition for extraordinary relief'(MandamuS)' in the' Circuit Court (Leon County). Holland v.
Sigg]etarv, 698 So.2d 1364 (FIa. 151 DCA 1997).
'11ie facts alleged in' the Mandamus Petition must be the same as those alleged during the Fonnal Grievance
process. 'Hall v. Wainwright, 498 So.2d 670 (Fla. III DCA 1986).
At some point during the preparation stage of the Formal 'GrievanCe the prospective 'litigant must determine the
objective with r:espect to the circumstances involved in the case. (I.e. whether to challenge the administrative decision or
seek to compel F.D.O.C. to comply with its own rules).
If you are using Mandamus to challenge an administrative decision (such as appealing a DR team finding), the
Mandamus is treated as an appeal from a quasi-judiciB1 decision.
When the circuit court denies a Petition for Writ of,Mandamus that' is challenging the decision of an.
Administrative agency (such as F.D.O.c:) the court is plainly acting in its "review capacity". Therefore. the Order ofthe
Circuit Court is reViewable in the District CoUrt of Appeal by Certiorari under Rule 9.030 (b) (2) (8), Fla. R. App. P.
(2008), and not by a subsequent plenary appeal on the merits ofthe case. In other words, a petition for Writ of Mandamus
in the Circuit Court takes the place of an appeal.
In the event the Circuit Court denies mandam~ relief on essentially any other issue besides the merits" review in
the District Court of Appeal would be by way of plenary (direct) appeal. The Standard of Review on appeal is de novo.
See State v. Phillips, 852 So.2d 922, 923 (FIa. 1st DCA 2003) (ruling that the "court's interpretation ofthe statute is one of
,

.

law; therefore, our review standard is de novo"). Caucus of Black State Legislators v. Crosby, 877 So.2<1 861 at 863 (FIa.

III DCA 2004)
It can be confusing as to which remedy to ·seek in the District .Court of Appeal if the.

Pe~tion

for writ of

MaiJdamu.c; is denied in the Circuit Court.

To make it perfectly clear, if th~ Mandamus is denied on the merits, the r~edy in the appeal court is a Petition
for Writ of.Certiorari. If'the mandamus is denied for any other reason besides the merits, then the remedy in the aPpeal
court would be by (direct) plenary appeal. Green v, Moore, 777 So.2d 425 (FIa. lilt DCA 2000).
12

Florida Prison Legal Perspectives
An extraordinaJy writ proceeding ,in the CirCuit Court. which
of Appellate Procedure. Huffinan v: F.D.O,c' 33 FIa. L,

~ks

an appellate remedy, is governed by the Rules

Wee~y D 4g5 a(FIa.

lilt D~A Feb 13,2008), citing

N~ell v.

Moore, 826 So.2d 1033 (Fla. III DCA 2002). .
If you are seeking to compel F,D:O.C. to comply with its own rules/statutes, the Mandamus will be considered an
. original civil action when filed in the Circuit Court.
In that situation, the question for the Circuit Court is wh'ether the Petitio,JIer has demonstrated a Prima facie case
for relief; to wit: did the

F.~.O,C.

have a crear legal duty to perform a ministerial act. Milanick

v. Town of Beverly

Beach.,820 So.2d 317, 320 (FIa. Sib DCA 2001),
I

•

A Petition for Writ of Mandamus brought against the F. D. O. C. is properly filed in the county where the agency

.

,

maintains its principal headquarters in accordance with the general venue statute, Chapter 47.011, FIa. Stat. (2007). See
Bush v. State, 945 So.2d 1207, 1212,
The Circuit Court has Jurisdiction to issue Writs of Mandamus under Article V, Section 5 (b) of the Florida
Constitution; Chapter 26.012 (1) (a), FIa:. Stat. (2007); and Rule 1.630,FIa. Rule Civil:Procedure. (2008).
One seeking a Writ of Mandamus must show that he ~as a Clear legal right to, the performance of a clear legal duty
by a public officer, and that he has no other available legal remedies. Hatten v. State, 561 So.2d 562,563 (FIa. 1990);

Holcomb v. Department of Corrections, 609 So.2d 751, 753 (FIa. I I1l DCA 1992); Adams v.' State, 560 So.2d 321,322
(FIa. 151 peA 1990). Mandamus may be used only to enforce a clear and certain right; it may not be use to establish such
a right, but only k> enforce a right already clearly and certainly established ~ the law. Florida League ofCities v, Smith,
607 So.2d 397, 40~-401 (FIa. 1992), Mandamus may be granted oniy ifthere is a clear legal obligation to perfomJ a duty
in a prescri.bed m&nner. Awks, 560, So.2d at 323; Holland v. Wainwright 499 So.2d 21,22 (FIa. lit DCA 1986). The

Writ may.be used to compel the perf~rmance ofthe ministerial dutY imposed by I.awwhere it has not been performed, as
the law requires, [A]lthough [a Writ QfMandamus] 'cannot be used to compel a public agency to exercise its discretionlUY
powers in a given manner, it may be ~sed to compel the agency to follow its own rules. WilliQIDs v. James. 684 So.2d
868,869 (FIa. 2nd DCA 1996). A prisoner seeking Mandamus
relief m~ demonstrate that helshe has exhausted available
.
.

,"

administrative remedies. Barber v. State, 661. So.2d 355,356 (FIa. 3n1 DCA
, 1995).
"All facts alleged in the order to show cause, which gen~y incorporates by reference the original petition, that
are not specifically denied are admitted to be true." Holcomb.609 So.2d at 753, citing Arnold v. Sate ex reI. Mallison.
147 Fla. 324, 2 So.2d 874 (1941)..

Therefo~,

when the DOC's responSe fails to refute the allegations of the petition,

which show entitlement of relief. the petitioner is entitled to Mandamus relief. See generally, Turner v. Singletary, 623
So.2d 5,37,539 (Fla. 1st DCA 1993); and Plymel v. Moore, 770'So.2d 242 (Fla. I Il1 DCA 2g00).
A prisoner must also submit an

Appli~on

for Indigent Status when filing a Mandamus Petition. Schmidt V. Me

Donougb.. 951 So.2d 797 (FIa. 2006).
A certifiCate of service should design~ a copy of the Petition being served on Respondent (Secretary F,D,O.C.)
by U.S, Mail. Harris v. State, 713 So.2d lJ06 (FIa. 41b DCA 1998).

Once the Respondent answers an order. to show cause the prisoner is afforded 20 days to file a reply under Rule
9.100 (k). FIa..R. App. P.(2OO8), Johnson v, F, P.C,. 873So.2d 611 (FIa. III DCA 2004),

.

13

Florida Prison Legal Perspectives

: DI8TRICT 001JBT OJ'APPEAL
It is important to know that if Mandamus is used to initiate a new civil Betion in the circuit court, the'resulting
final order is subject to review by appeal. Mandamus is an action at law, See State ex reI Mott y. Scofield. 't20 So.2d 825

(FIa. 2nd DCA 1960), and ~with other actions at law, a final judgment on a complaint for Writ of Mandamus is
reviewable by appeal. See, e.g. Warren v. State. me rei Four Forty, Inc.. 76 So.2dA85 (Fla.

1954)~

City of Miami Beach v.

State ex rei Pickin' Chicken of Lincoln Road. Inc., 129 So.2d 696(F1a. 3nl DCA 1961)~ Cornier v. Mid-Florida Growers

in£., 541 So.2d 1252 (Fla. i ad DCA 1989).
For example, Rivera Vt Moore. 825 So.2d 505, 506 (FIa. Ist DCA 2002), illustrates that a prisoner who is !!!!
, seeking review ofa quasi-judicial action ~enby the F.D.O.C; will be treated as aD ~peal from a'final,order ofthe trial
court under Rule 9.110 Fla. R. App. P. (2008), rather th~ a P~tion for Writ of ~ertiorari pursuant to Rule 9.100 Fla. R.
App. P. (2008), See Sheley y. F. P.C., 709So.2d 1202 (FIa. 1st DCA ]997); approved 720 So.2d 216 (FIlL 1998). See also
Whisner v. Moore, 825 So.2d 420 (FIa. 1st DCA 2002), (holding that the portion ofthe Circuit Court's order that involved

an original disposition of a constitutional clmm over w~ch the F.D.O.C. had

DO jurisdiction

was entitled to plell8ty

review.)
Likewise, Appeal'rather than Certiorari, was the proper method to review a CiJ:cuit Court's denial of inmates
,

,

petition for Writ of Mandamus challenging disciplinary sanction, where proceeding was concluded on grounds other than
the merits. Green v. Moore, 777 So.2d 425 (Fla. 1st DCA 2000).
These principles cannot be applied when the petition for Writ 9f Mandamus was filed in the Circuit Court as an
appellate remedy to review a quasi-judicial action ofan administrative agency.
By Contrast a District ,Court of Appeal reviews by Certiorari an 'order of the Circuit Court acting in its appellate
capacity to review an administrative determination of DOC. White

y: MQore, 789 So.2d ] 18 (Fta. I

st

DCA 2001).

When the Circuit Court reviews an administrative decision by appeal, subsequent review·in the District Court of
Appeal is available by.. Certiorari, a more· restrictive Standard- of Review
because the first .level of review is a. plenary
.
appeal on the merits. Cherokee Crushed Stone y. City ofMiramar, 421 So.2d 684 (FIa. 41h DCA ]982).

.

The District Court of Appeal
has jurisdiction to issue Writs ofCertiorari under Article V. Section (4) (b) (3) ofthe
.

.

Florida Constitution and Rule 9.030 (b) (2) (B), Fla.
R. App. P. (2007).
.
,

The Standard of Review applicable to Circuit Court Review of a. ~ecision of an AdrniJiistrative agency and for'
Certiorari Review in the District.Court of Appeal is explained in Plymelv. Moore, 770 So.2d 242, 246 (Fla. lit DCA
2000)
't
This is Part One ofa two pari ~eries. Part Two will appear in the next issue ofF. P.' L. P. •
,

,

.

FLORIDA CLEMENCY SPECIALIST
FOR ASSISTANCE·INFORMATION:
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Florida Prison Legal Perspectives

Thefollowing are summaries l?/rec.entstate and/ederal cases that maY be useful to or have a significant impact on Florida prisoners.
Readers should always read the[ull opinion as published i~ the Florida L~ Weekly (flo. L. Weer.Iy); Florida law Weekly Federal
(Fla. L. Weekly Federal); Southern, Reporter 2d (So. 2d): Supreme Court Reporter ,(S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Supplement 2d (F.•~upp. 2d). siC'ce these summaries are/or general information only.
,

Supreme Court Of Florida
,

establish a defendant's status as a
violent felony offender
. (HV.FO) are admissible under either
the
business-or-public-records
Polite v. Siale, 33 Fla. L. Weekly
exceptions
to the rule against
S69 (Fla. 1/24/08)
,
'hearsay.
TheSe
documents being the
The Third District, Court of
"Crime
and
Time
Reports" issued by
Appeal in Gary L. Polite v. State of .
the
Dept.
of
Corrections
(DOC).
Florida, 933 So.2d 587 (Fla. 3d DCA
The'
Florida
Supreme
Court
2006), had certified a conflict with
opined, DOC release-date letters,
the decision of the Fifth District's in
standing
alone,', constitute
A.F. v. Siale, 905 So.2d 1010 (Fla.
inadmissible hearsay-Crime and
Slh DCA 2005). '
Time Reports issued by DOC are
The conflict that was certified to
admissible as public records so long
the Florida Supreme Court was
as they are properly authenticated,
whether knowledge that a victim is a
and are admissible, as. business
law enforcement officer is an
records when the DOC attaches a
essential element of the offense of
section 90.902(ii) certification. Also,
resisting an officer with violence
when the State provides a Crime and
under section 843.01, Florida
rime
Report,
and' properly
Statutes (2092). The Third District
authenticates the report by attaching
opined that it was not an essential
a signed and sealed release-date
element and the Fifth District opined
letter, the "combined document is
the opposite conclusion.
admissible
as a, public record to
Based on its analysis of' the
establish
a
defendant's
HVFO status.
conflict, the Florida Supreme Court
concluded that knowledge of the
Ey v. State, 33 Fla.: L,: Weekly S144
officer's status is 'an essential
(Fla.
2128/08)
element. Therefore, the decision of
Robert
Ey's case presented the
the Third District's was quashed and
Florida
Supreme
Court with an issue
the Fifth District's was approved.
of whether when a defendant has
committed two separate crimes and
Yisrael v. Stale, 33 Fla. L. Weekly
informs his attorney about both of
S131 (Fla. 2/21/08)
them,
the attorney's erroneous advise
In this case, the Florida Supreme
that
his
plea in one case could not be
Court reviewed the decision in
used
to
enhance his sentence in the
Abraham, Yisrael"s appeal made by
other
constitutes
ineffective
the Fourth District Court of Appeal,
assistance ofcounsel.
Yisrael v. Slate, 938 so.2d 546 (Fla.
. The Supreme Court opined that it
41h DCA 2006). In that appeal, the
does constitute ineffective assistance
Fourth District had certified direct
of counsel. The' Court also outlined
conflict with its decision and that of
the pleading' requirements in this
the First District in Gray v. Stale,
case for raising it fapially sufficient
910 So.2d 867(Fla. lSI DCA 2005).
claim on this ground and stated that
The sole relevant issue that was
it must be filed within two years after
presented. for review was whether
the
conviction based on the plea the
documents the State .proff~rs to
defendant is attacking becomes final.
h~bitual

It was further noted that in Siale
v. Dickey; 928 So.2d 1193. 1194
(Fla. 2000), the same question was
answered in the negative. It was
found, however, that Ey's claim was
substantively different. This was
because, in Dickey, "wrong advice
about, the consequences for a crime
not yet committed cannot constitute
ineffective assistance ofcounsel..\
Jenkins v. State, 33 Fla. L. Weekly
S147 (Fla. 3/6/08)
The background of Donald E.'
Jenkins' case began when a
confidential informant provided
information' about an individual
identified only as "0" to a police
officer. The CI offered to call "0"
and order a qU'antity of cocaine,
stating to the officer that he had
ordered drugs from ;'0" before. The
CI only described ··0" as a tall, black
male and the officer only heard the
CI's side ofthe'''order placing" when
he called "D." The delivery was to
take place at a gas station in a well
.know area for drug activity, and the
CI told the officer that '·0" would be
driving a "brown boxy 4-door
Chevy."
At the place of the delivery, the CI
informed the'officer that it was uD"
who drove up to the gas station,
whereupon the ,officer notified other
officers of this. One of the other
officers ordered Jenkins out of the
vehicle. at gunpoint and placed him in
handcuffs. The CI confirmed to the
officers that Jenkins was "0:' A
subsequent search of Jenkins' vehicle
produced no contraband. An officer
,then proceeded to conduct a pat
down of Jenkins' person, which
produced no drugs. According to the
pat down officer, his sergeant gave
him permission to look inside

15

Florida Prison Legal Perspectives
Jenkins' clothing. where the officer
then pulled ~k Jenkins' pants and
boxers and observed a twisted
sandwich bag with cocaine inside
Jenkins' butt' crack. The sandwich
bag was removed and Jenkins was
arrested and charged with possession
of coCaine and possession of cocaine
with intent to sell.
At trial, Jenkins filed a motion to
suppress all evidence discovered as a
result of .the stop and search, where
he asserted that: (1) the police
lacked reasonable,suspicion to detain
him; (2) there was no basis to
conduct a pat down for, weapons, and
the search which revealed the bag
~as
between
his . buttocks
unreasonable; (3) the police lacked
probable cause to search the vehicle;
and, (4) the search violated section
901.211 of the Florida- Statutes
, (2002), which govems strip searches.
The trial court deni~ the motion and
subsequent to an appeal, the Second
District Court affirmed the denial,
noting that· its opinion was in direct
conflict with the e:tecision of the
Fourth District in D.F. v. State, 682
So.2d 149 (Fla. 41b DCA 1996), thus,
it certified the conflict to the Florida
Supreme Court.
On review in the Suprem~ Court,
it was concluded that the police had
probable cause to arrest Jenkins, that
the search of Jenkins was valid under
the Fourth Amendment, and that the
exclusionary' rule does not apply to
violations of section 901.211, Fla.
Statutes. As such, the Second
District's decision was approved and
the Fourth District's in D.F. was
disapproved. '
[NOTE: Judge Quince, J.
dissented with the majority decision
in a very wel1 and lengthy,
informative opinion that should be
reviewed . and of which Judge
Pariente,
J.
concurred
with.
Hopefully, Jenkins will seek further
review of his case with the Federal
Courts. using· the dissented opinion'
that was given.}
t

16

Distri~t

Courts of Appeal

Redmond v. State, 33 .Fla. L. Weekly
D90 (Fla. 5th DCA 12128/01)

error for the lower court. to deny
Johnson's pre-:-sentencing motion to
vacate the plea.

Concha v. State, 33 Fla. L. Weekly
The Fifth District Court of Appeal
D134.(FI~. 41b DCA 112108)
in Edward C. Redmond's case
The appellate court in Luis
stressed that section 948.20, Florida
Concha's
direct appeal opined that
Statutes (2005), does not give the
prosecutor's questioning' of arr!sting
. trial court authority to impo'se drug
officer regarding Concha's failure to
offender probation for delivery of
'demand
tests and 'refusal to' perform
cocaine. See: State v. Roper, 915
th
tests
after
being taken to an alcohol
So.2d 622 (Fla. 5 DCA 2005), and ,
testing
center
was fairly susceptible
Anderson v. State, 941 So.2d 446'
th
of
being
interpreted
as a comment on
(Fla. 4 DCA 2006).
Concha's
right
to
remain
silent..
Under section 948.20, it only
Thus,
Concha's
DUI
conviction
authorizes ,such probation for
.
was
reversed
for
a
new
trial.
violations of section 893.13(2)(a) or
(6)(a), which prohibit the purchase or
White v. State, 33 Fla. L. Weekly
of certain controlled substances.
D
t 5 I (Fla. 4th DCA t 12/08)
.
Although Redmond's sentence
Christophel'
White
appealed
his
was reversed for are-sentencing
conviction after a jury trial of sale or
without the imposition of drug
delivery of cocaine, where the trial
offender probation, the appellate
court admitted testimony that
court informed the lower court that it
White's conduct displayed a
may impose regular probation. See:
characteristic
typical of drug
State v. DeMille, 890 So.2d 454 (Fla.
transactions.
2d DCA 2004)..
The appellate court stressed that
admittance
of. such testimony is
Soto v. State, 33 Fla. L. Weekly
inadmissible
and improper. Also, a
DI06 (Fla. 3d DCA 112108)
of
iterations
from numerous
variety
Ruben
Soto
appealed
his
within'
different
appellate
cases
judgment and convictions of DUI
courts
were
cited,
in
White's
manslaughter and manslaughter by
appellate
opinion.
'
culpable negligence where there was
White's case was reversed and
only a single death' involved.
remanded,
apparently for a new trial
On appeal, the state confessed
although
the opinion was silent in
error, such separate convictions were
that
matter.
improper. Thus, Soto's case was
remanded for the manslaughter
Esposito. v. McDnough, 33 Fla. L.
conviction to be vacated.
Weekly D164 (Fla. III DCA 12131107
John M.. Esp,osito petitioned the
Johnson v. State, 33 Fla. L. Weekly
th
appellate
court for a writ of certiorari
Dl14 (Fla. 4 DCA 1/2108)
that
sought
review of the lower
In William M. Johnson's case the
court's
denial
of a mandamus
appellate court opined that counsel's
petition.
.
,
failure to advise Johnson that, he
The. .
mandamus
petition
could be indefinitely committed
challenged
the
imposition
of a'
under the Jimmy Ryce Act upon the
disciplinary
sanction
imposed
against
commission of any future non-sexual
him by DOC where he had been
offense would constitute good-cause
found guilty of attempting to
to permit Johnson to withdraw his
conspire with his wife to introduce
guilty plea to his charge of lewd and
contraband in the form of a wrist
lascivious battery.
watch into a prison facility.
The appellate .court reversed
It was found that DOC had
Johnson's
case
for
further
ignored Espos'it.o's request for DOC
proceedings, concluding that it w~

Florida
Prison Legal
.
, .. Perspectives
documents·that would have shown h~
possessed the wrist watch pefore his
wife visited him. Thus, the writ was
grimted and the mandamus denial
was ,quashed, and the case. was
remanded with instructions ,to issue
"the mandamus writ.

,

Elford v. McDonough, 33 Fla. L.

Brumit v. State. 33 Fla. 'L. Weekly
0168 (Fla. 4 th DCA 12/31107)
Jody Brumit's case presented a
interesting example of the
proper procedure to follow when one
seeks relief when co - defendants'
. appeals on the -same issue are
resolved differently.
'
.
Tile proper metho'd W(lS <;»pin'ed to
be . a habeas corpus filed in the
appellate court See: e.g., ,RaUlerson
v. State. 724 So.2d 641 (Fla. '41h DC;A
1999).
v~ry

Weekly 0165 (Fla. 1st DCA
12131107)
This was a certiorari petition
where Michael Elford sought review
of a' lower court's denial 'of his
Jackson v. State, 33 Fla. L. Weekly
mandamus petition that challenged a
0171 (Fla.4Ih.oCA 12/31107)
disciplinary action by DOC.
It was opined in Antonio
In ·the lower court, Elford had
Jackson's apJX:al from the denial of
been found indigent and a lien was
his rule 3.800(8) motion 'that 'soUght
placed on .his prison account to
jail
credit after sentencing that such
recover the filing fees., Subsequently,
challenge
should be made. by
the lien was removed but the lower
;
,exhausting
administrative remedies
to
order
court
declined
with DOC~ Then, after exhausting
reimbursement of any funds taken
those remedies, a mandamus petition
pursuant to the lien.
may be against DOC.
In the appellate court, although it
was found then~ was no error in the
Jimenezv. State, 33 Fla. L. Weekly
denial of his mandamus petition, it.
.0480
(Fla. 3d DCA 2/13/08)
was found that the lower court was in
The question presented in Luis
error to decline reimbursement of
funds taken. See.: Rowlie.v. Fla.
Jimenez's appeal was whether the
cOurt
had
committed
trial
'Parole Comm 'n, 958 So.2d '1131
fundamental error by' failing to
(Fla. 1II DCA 2007).
instruct the jury in Jimenez's trial on
Elford's certiorari petition was
the definition of excusable homici,de.
granted in part as to the lower court's
Jimenez's main position at trial
order that declined reimbursement of
was that he killed a person while
the funds, and the case was
acting in self defense. The State and
remanded for further proceedings
defense. agreed to have the
regarding such reimbursement. .
instruction on justifiable homicide be
given to the jury. However, neither
Pierre v. State, 33 Fla. L. Weekly
0167 (Fla. 5th DCA 1/4/08)
'.
party requested that excusable
homicide instruction be given and so,
It was stressed by the appellate
it was not.
court in Wilbert Pierre's appeal from
"Because manslaughter is a
a summary denial of his rule 3.850
by
that 'a defendant who files a legally
'residual offense,' defined
~ference to what it is not,' a,
insufficient 3.850 motion should be
'complete'
instruction.
on
given at least one opportunity to
manslaughter requires an explanation
correCt the deficiency. Thus" the
that . justifiable 'and excusable
proper procedure of the lower court
homicide is' excluded from the
would have been to strike the motion
with leave to ainend within
crime." See: State v. Lucas, 645
So.2d 425. 427 (Fla. 1994) (citations
reasonable time. The case' was
admitted). "Failure to' give a
remanded for proceedings ~nsistent
complete.
instruction
on
with that opinion.
manslaughter during the original jury
charge is funda~ental error which is

not s'ubject to' harmless-error analysis
where the defendant has' been
convicted of either manslaughter or a
. greater offense not more than one
step removed, such as second-degree
murder." Id. There is, however. an
exception, wheredefen~ counsel
affirmatively agreed to or requested
the incomplete instruction. But that
1
did not occu~ in Jimenez's case.
Accordingly, Jimenez's case was
. reversed and remanded for a new
trial.

Huffman
v.
Fla.
Dept.
of
Corrections, 33 Fla. L. Weekly 0495
(Fla. III DCA 2/13/08) .
Davi~ Huffman sought certiorari
review of an order that denied his
petition/complaint that challenged
DOC disciplinary proceedings. He
asserted that the lower court erred in
denying his motion for leave to
amend the petition/complaint.
It was found that the lower court
~id not err
in .the denial of
Huffman's request to amend, which
was made after the filing of DOC's
response. However, the appellate
Court opined that it was error to deny
relief on the merits of Huffman's
petition/complaint without affording
him the .opportunity to' reply to
DOC's response.
. An extraordinary writ proceeding
in the circuit court which seeks an
appellate remedy is governed by the
rules of appellate .procedure. See:
Newell v. Moore, 826 So.2d 1033
(Fla. }S1.DCA.2002>'. Florida Rule of
Appellate
Procedure
9.300(b)
that' .except
in
provides'
circumstances, that was not relevant
in Huffman's case. the service of a
motion tolls the time schedule of an
appellate proCeeding. Huffman's
. motion was .served prior to the
expiration of the time for filing a
reply set by the circuit court, and
thus tolled the time to. reply. After
the lower court denied the motion
, for leave to' a~end. it should have
allowed Huffman the opportunity to
reply before disposing of the matter
on the merits. Cj. Wilkinson v.

17

..

Florida
Prison Legal PersRectives
.
,
McDonough, 960 S02d 911 (Fla. I"
DCA 2007).
Accordingly,
the
certiorari
petition was granted,. the . lower
court's order was quaShed, and case
was remanded to allow a reply.
Mullins 1'. State, 33 Fla. L. Weekly
0497 (Fla. 3d DCA 2/13/08)
Mullins' conviction was rendered
Augu~ 6, 2002, and he was
sentenced October 30, 2002 and a
direct appeal was filed which the
appellate court had affirmed his
conviction and sentence .with
citations on August. 29, 2003.
Mullins then sought discretionary
review in the Florida Supreme Court,
which was dismissed November 24,
2004. On July 10" 2006, Mu~lins
filed his 3.850 motion, which was
denied as untimely.
The appellate court opined that
because Mullins' direct, appeal
opinion cited a case that was pending
review in the Florida Supreme Court,
the time for filing a rule 3.8.50 was
tolled until the date the Florida
Supreme Court either accepts or
denie~ review. T~us, Mullins' twoyear period for filing his 3.850
motion began to run fr~m the date
the Supreme Court dismissed his
petition for discretionary'review.
Accordingly, Mullins' rule 3.850
was found to be timely fi.1ed and the
lower court's denial was reversed
and the case was remanded for
consideration' of that motion on the
merits.
Thompson v. .State, 33 Fla. L.
Weekly 0583 (Fla. 2nd D,CA
2122108)
William P. Thompson appealed
an order that revoked his probation
and the resulting sentences.
The appellate court opined that it
was error for the lower court to
revoke Thompson's probation where
the state failed to 'prove by
competent, substantial evidence that
Thompson had either willfully failed
to pay court-ordered costs or that he
had changed his approved residence
without permission. It was found to
18

be abuse of· discretion in finding . Young's church pastor'.s office was
Thompson had violated py failing to
kept locked and Young was not
pay court costs, where no evidence
present to consent to a search. Young
was presented or findings made of
expected no one to pursue his
his ability to. pay the costs, and-the
personal belongings in that office
state did. itot present any evidence
and there was no evidence of a
that he was actually living at a . church policy that informed Young'
different address.
that others could enter his office to
As a resul~ Thompson's case was
view contents of his computer, thus,
reversed and remanded, and because
Young had a reasonable expectation
Thompson's two year probatio~ term
of privacy in that office. Futher,
he was originally' placed on had
church officials' did not, under the
expired, the lower court was
circumstances, have authority to
instructed to discharge him from
consent a search of Young's office.
supervision.
As a result, the officers had 'acted
improperly in conducting the search
Burkhart v. Stale, 33 Fla. L. Weekly
and the. subsequent statements of
0591 (Fla. 2125/08)
.
Young were "fruit of the poisonous
In Dennis R. Burkliart's case, the
tre!'."
appellate court stressed that the
. Accordingly, the. lower court's
imposition of an additional condition
order granting Young's motion to
of probation after the conclusion o( a
suppress was affirmed.
sentencing hearing violates the
double jeopardy clause. See: . Clifton v. Fla. Parole Commission,
Lippman v. Stale, 633 So.2d 1061,
33 Fla. L. Weekly 0599 (Fla. I"
1064 (Fla. 1'994); and Justice v.
DCA 2/25/08)
State, 674 So.2d 123, 126 (Fla.
Henry Clifton had sought review
1996). BUI also see. section 948.06,
of a lower court's denial of his
Fla. Statutes, which sets forth the
mandamus petition that challenged
proper procedure for enhancing a
the setting of his presumptive parole
'probation condition, which is only
release date.
.
after a violation of the probation
The appellate court found that
originally imposed.
Clifton's argument was' without
merit. However, his underlying
action constituted .a "collateral
Slate v. Young, 33 Fla. L. Weekly
0592 (Fla. I It DCA 2125/08)
criminal proceeding" and the lower
court improperly imposed a lien
The State of Florida sought
upon Clifton's prison account.
review of an order that granted Eric
Clifton properly preserved this issue
Young's motion to suppress evidence
gathered during a warrant-less search
by filing a motion to vacate the lien
in the lower court. See Kemp v.
of his office and workplace
McDonough, 955 So.2d 635 (Fla. 151 .
computer, as well l!-s statements
DCA 2007).
obtained from Young in a subsequent
It was found that although- the
interrogation.
lower court granted the motion to
This case was on motion .for
dissolve the lien, it refusep to
rehearing and certification filed by
the State, which the appellate court , authorize a refund ofthe monies that
had been withdraWn baSed on the .
denied. However, on the appellate
erroneous lien. The appellate court
court's own motion, it withdrew its
quashed that portion of the lower
previous opinion at 33 Fla. L.
court's' order. See Villar v. Fla.
Weekly D51a to substitute a new
Parole Comm'n, 955 So.2d 664 (Fla.
one.
In relevant part, the appellate
151 DCA 2007).
.
. Accordingly, Clifton's petition
court opined that the trial court·
was denied in part, and granted in
properly granted Young's moti~n to
part, and his case was remanded
suppress where it was found that

Florida Prison Legal Perspectives
where the lower court was directed to
order th~ reimbursement of any
.funds that have been withdrawn from
Clifton's account to' satisfy the
improper lien order:

. Davis v. State, 33 Fla. L. Weekly
,0604 (Fla. 2nd DCA 2/27/08)
Merlan Davis filed a mandamus
petition requesting the appellate
court to compel the lower court to
strike his rule 3.850 motion with
leave for him to amend the
insufficiency of the motion as based
on the Supreme Court's decision in
Spera v. State, 32 Fla. L: Weekly
,
S680 (Fla. Nov. 1,2007).
Davis contended that according to
Spera, he is entitled to at least one
opportunity to amend his rule 3.850
motion that was filed in the lo~er
court on Dec. 8, 2005.
The appellate court opined that
Davis was not entitled to' a leave to
amend based on Spera because the
Spera decision does not apply
retroactively, Spera was opined to be
a r~finement of decisional law; not a
"fundamental and constitutionai law
change."
Davis' petition was denied.
Joseph v. State, 33 Fla. L. Weekly
0609 (Fla. 3rd DCA 2/27/08)
In Gregory Joseph's appeal of the
denial of his rule 3.850 motion as
being successive, the appellate court
stressed that claims in a second 3.850
motion are procedurally barred
where those claims could have been
raised in the first motion. See: Moore
v. State, 820 So.2d 199, 205 (Fla.
2002).
Chapman v. State, 33 Fla. L. Weekly
D611 (Fla. 4th DCA 2/27/08)
The appellate court opined in
. Derek T. Chapman's case that there
is no statutory authority to impose
costs and fees for prosecution under
the Sexually Violent Predators Act,
and that th~ Department of Children
and Family Services· is responsible
for all costs. Also, although a
defendant is entitled to counsel, and
the court is required to appoill.t

counsel, there are no provisions for a
lien for repayment.

Valentin v. St~te, 33. Fla. L. Weekly"
0627 (Fla. 4th DCA 2127/08)
Jamie Valentin was convicted for
possession cocaine with intent to seli
within one thousand· feet of a
publicly owned par~. Valentin
sought a judgment of acquittal,
becausethe state failed to prove'that
his possession was with intent to sell. '
The trial court denied the motion for
judgment of acquittal and Valentin
appealed.
•. The appellate court opined that it
was erro~ to: deny the lOA and that
discovery of individually.packaged
narcotics does not automatically
establish an intent to sell.
Valentin's case' was reversed and
remanded with directions for the
lower court to ente~ a judgment for'
simple possession of cocaine,
pursuant to 'seftion 924.34, Florida
Statutes (2006).
Head v. McNeil, 33 Fla. L. Weekly
0621 (Fla. 151 DCA 2128/08)
William H~d's case was a
question of whether his mandamus
petition against DOC was timely, as
it was deemed untimely by the lower
colJrt..
Head's mandamus petition sought
of an
administrative
review
determination
that
denied
application ofgain time to his date of
release, and the lower court opined
that because he filed his petition over
30 days from the DOC's final
decision, the petition was untimely
pursuant to section 95.11(8), Florida
Statutes (2006).
'
The appellate court found that the
lower court was in error to apply the
30 day limit proscribed in 95.11(8).
.Head' did not argue against a
disciplinary . proceeding or his
conviction. As a result, Head's
'argument fell under the provision
found in section 95.ll(5)(f) where'
the petition must be filed within one
year of exhausting administrative
remedies. See Canete v. DOC~ 967
So. 2d 412, 414 (Fla. .1 1l DCA 2007).

Accordingly. the lower court's
denial was reversed and the matter
was
remanded
for
further
proceedings consistent with' the
appellate court's opinion.

Williams v. State, 33 Fla. L. Weekly
0858 (Fla. 41h DCA 3126/08)
The Fourth District Court of
Appeal in Tavares A. Williams'
direct appeal from an order denying
his motion for judgment of acquittal
opined that the state had failed to
establish a prima facie case of guilt.
Police could only testify that they
saw what was believed to be a handto-hand transaction and that Williams
'received some cash from the driver
of a vehicle Williams had the
transaction with. It was opined that
although drugs were found in the
particular vehicle Williams was see
to encounter and made a possible
transaction with the driver .of that
vehicle, there was no ,evidence
linking the found drugs to Williams
or limiting the possible source of
those drugs.
Accordingly, the denial of
Williams' motion for judgment of
acquittal was found to be in error,
and the case was remanded with
instructions that Williams was to be
discharged.
Robinson v. State, 33 Fla. L. Weekly
0878 (Fla. 2 nd DCA 3128/08)
Stevie R. Robinson appealed the
denial of his motion to suppress
marijuana and a firearm found on
him from' a search that police
claimed had probable cause for
because of Robinson standing with a
group of men where an odor of burnt
marijuana was detected.
Appellate court opined that it was
error to deny the suppression motion
and reversed the convictions.
Murphy v. State, 33 Fla. L. Weekly
0880 (Fla. 2nd DCA 3128/08)
The appellate court in Robert
Murphy's direct appeal opined that it
was error for the trial court to impose
a special condition of no early
19

Florida Prison Legal Perspectives
termination of Murphy's probation
term.
,It was opined 'that a ,trial court
may not impose a special condition
of probation that purports to divest·
the . D.D.C. of its authqrity to
recommend early, termination' and
trial court may not prevent, a circuit
court from exercising its discretion t~
discharge a defendant in the future.

Douglas' judgment and conviction·
became final,' it was the date that
'DOt informed himof the gain time
forfeiture. Such claim constituted .
newly discovered in'formation.
However, Douglas' failed to
pfQvide i~formation explaining 'why
he did not know or could' not have
known of the forfeiture. As such, the
case was reversed and remanded for
the lower court to dismiss the motion
and allow Douglas ,to file a corrected '
one.

, Douglas \I. Slale, 33 Fla. L. Weekly
D886 (Fla. 2nd DCA 3/28/08)
.
Ceasar Douglas appealed the
denial of his rule 3.850 motion as
untimely where
he
claimed
ineffective assistaOce of counsel in a
misrepresentation ,of his potential
length of imprisonment and failure· to
advise of possible forfe,iture ofgain
time for violation of conditional
release.
\
'The appellate court opined that it
ws error for the lower court to deny
Douglas' rule 3.850 motion as
untiml?ly. The triggering event for
the two-year period was not the date

Sabree \I. State, 33 fla. L. Weekly
D921 (Fla. 41h DCA 4/2108)
Quadir Sabree appealed his DUI
manslaughter/unl~wful blood alcohol
level and DUI. serious bodily
injury/unlawful blood alcohol level
where he asserted that the trial court
fundamentally erred in giving
misleading and, inaccurate jury
instructions that related to an element
of his offense. '
The appellate court opined the
instruction given tb the jury that the

state was required to prove Sabree,
while driving or while in actual
physical control of the vehicle, had a
blood. alcohol level of .08 or higher
'~andlor a controlled substance to-wit:
cocaine" was inaccurate and
misleading. Simply having cocaine
in a defendant's; system is legally
insufficient evidence to convict
because the state is required to prove
beyond a reasonable doubt that the
'defendant was "under the influence"
of cocaine. '
Accordingly, the error was found
to be fundamental and the case was
reversed and remanded fol' Sabree to
have a new trial. _
'

'\

EXPERIENCED CRIMINAL DEFENSE ATTORNEY
AVAILABLE FOR STATE AND FEDERAL
POST-CONVICTION MATTERS

.

* Admitted to the Florida Bar in 1973

• Ove'r thirty years experience in the prac~ice

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..

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motions, 2255 motions, State and Federal Habeas Corpus Petitions, D,etainer Issqes, arid
other Postconviction Matters~
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'lo«1'ree 'let 1-888-645-5352
,'let 6407) 645-5352
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. 2153

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20 !!!

bo

Florida Prison' Legal,Perspective~

NEWS~NRIEF

AR- A bailiff. Cpl. Jarrod Hankins,
was suspended for 30 days on March
12,'2008 for leaving a woman locked
in a courthouse cell for four days
without food, water or access to a
bathroom.
Washington
County
Sheriff, Tim Helder, said that
Hankins will keep his job because he
acted without intentional misconduct.

AZ- In an effort to discourage young
people from using drugs, on April
14, 2008, fifteen women prisoners
cleaned trash from a street wearing
T-shirts that say "I' was a drug
addict." The women want to help
others make better choices than they
did, said Maricopa County Sheriff
Joe Arpaio.
CT- On April 28, 2008,' Jewu
Richardson, a state prisoner, filed a
federal lawsuit against New Haven
narco,tics detectives. Richardson
. asserted that they planted drugs on
him during his arrest. The suit names
seven former and current police
officers, .including two who have
been convicted of federal corruption
charges.
DCThe
U.S.
Sentencing
Commission on April 24, 2008,
released a report that says that new
sentencing guide-lines enacted March
3, 2008. have cut 3,075 prisonerS
sentences for crack cocaine. The
study states that it is unclear how
many prisoners have actually been
released from custody, however,.
federal judges nationwide hllye
agreed to reduce sentences for 3,075
prisoners. Four of every five crack
defendants are black, while most
powder cocaine convictions involve
whites,said the report.,
DC- On April 14, 2008, the US
Supreme Court granted discretionary
review to decide whether an exprisoner, Th9mas Goldstein, can SJ.le
the ex-prosecutors for allegedly

violating his civil rights. Goldstein,
54, served 24 years before his
murder conviction was overturned.
DE- On March 4, 2008, a state'
trooper, Hynn Jin Kim, 27,' was
charged with a robbery that took
place during a poker gam~ at the
Wild Quail. Gold and Country Club
in Wyoming. Del. Officials say that
three armed men entered the club
Feb. 22, took money an~ electronic
~evices from the players then left.
Authorities also said that evidence
left at the scene had been bought at ,a
Wal-Mart
and
video
images
identified the state trooper.
FL- The U.S. Marshal's South
Florida Task Force on April 'I, 2008,
captured an inmate that had escaped
a week prior from the Belle Glade
Jail. Officials found Jean Lafalaise,
26, at an apartment in 'Clewiston. No
~etails about how he escaped were
given ,by authorities, other than he
was missing during a head count at
the jail.
FL- A correctional officer was
booked into the Palm Beach County
Jai' during the last week: of April
2008, after she was captured on
vid~o surveillance having sex with s
prisoner. Akins Wright, 28. worked
at South Bay Correctional Institution.
Officials say the pair tried to 'conceal
themselves on the floor behipd ,a
desk during the 35 minute tryst.
Wright' was released 'about an hour
later on a $3.000 bond. The name of
the prisoner was not released.
GA- After entering a guilty plea to
felony theft and other charges related
to a payroll theft scheme. a former
district attorney in northeaSt Georgia.
Tim Madison, was sentenced' to six
'years in prison. Madison was
sentenced on March 5. 2008. and was
the chief' prosecutor in Banks,
Barrow, and Jackson counties. Last

summer, Madison resigned
years in office and amid
investigation. The theft
inc'luded payments made to
and an assistant DA
,

after 24
a state
scheme
his wife

v

GA- On April 27••2008.' an AI
Burruss State Prison guard, was
arrested and charged with ,five felony
charges. Heather Hunnicutt, 25, was
arrested after prisoners snitched on
her. The five felonies include having
sex with a prisoner and trying to sell
marijuana, said authorities.
IN- State officials announced on
"March 3, 2008, that a contract was
signed with the Alabama-based
Ready-Built Transmission that would
allow ,prisoners at the Pendleton
Correctional Facility to repair
on postal
transmissions used
vehicles: Under the contract.
prisoners can eam up to $1.25 an
hour. To qualify. prisoners must have
shown good conduct and have over
three years left on their sentences.
,IN- On March ,I I. 2008. police chief
Thomas Houston retired and two of
his top aides were' reassigned, after
they were accused of assaulting two
people suspected of burglarizing
Houston's home last June. Federal
civil rights charges were filed against
the three, said Gary Mayor Rudy
Clay.

LA- Judge Frank Marullo ordered
the execution by injection on April
'23, 2008, for the former police
officer convicted of three murders.
Antoinette Frank was sentenced to •
death for killing a fellow offacer and
a brother and sister during murder
spree at a restaurant where he once
worked as a guard.

a

MI- Albert Eliel. 57, a prisoner at the
Marquette Branch Prison. was
sentenced to life in prison on March
13,2008. for-attacking a nurse during

21

Florida Prison Legal Perspectives
an examination. The incident took
place in February 2007. Eliel was
convicted of assault with intent to
murder and assault to commit sexual
penetration.
M8- Hinds County attorney settled a
multimillion dollar lawsuit on April
22, 2008, filed by a County
Detention" Center inmate. who .was
paralyzed in a .fight' with another
inmate. Michael Burnley, 24. was
paralyzed from the . chest down
during the fight II11d had sought $10
million for general and compensatory
damages. The ,amount of, the
settlement is confidential. said the
county attorney.
M5- On .March 12. '2008. district
attorney Forrest Allgood formally
petitioned a judge to. dismiss the
capital murder and rape indictment
filed against an ,ex-prisoner who did
18 years in prison. Levon Brooks.
48. was wrongly convicted in 1990.
Earlier this year. the state Supreme
Court threw out the conviction after
DNA, evidence showed he was
wrongly convicted of killing a threeyear-old girl.

.

'

NC- A state trooper, Michael St~ele.
pleaded guilty to 10 charges on April
22, 2008.which included kidnapping.
extortion. and sexual battery.
Prosecutors claim that Steele kissed.,
touched or fondled three Hispanic
women, threatening to arrest them or
tum them over to immigration
authorities ifthey failed to comply.
NC- Federal Marshals on Fe". 20.
100&. arrested an. ailing 81-year-old
prison escapee. Willie Parker was
• arrested in his bed 43 years after he
walked away from a prison work
detail in Maryland.
NM- On April 16. 2008. DOC
officials said that they are closing a
minimum secun~ 'N~I:.t\·s prison in
Albuquerque 'because of a decline in
prisoners. The Camino Nuevo
Correctional Facility holds 192
prisoners and only had 23 women. '

11

The women will be transferred to the
Women's Correctional Facility in
Grants.
NM- Bernalillo County Metropolitan
Judge, J. Wayne Griego. was orderetl
by the state Supreme Court removed
on March 12. 2008 for ticket-fixing.
The Judicial Standard Commission
had .recommended that Griego' be
suspended without pay for 90 days
and reprimanded. According to the
Commission's director. Griego fixed
24 traffic tickets.
NY-A member of the Hells Angels.
Richard Vallee, SO. was sentenced to
life in prison on April 14. 2008.
Vallee was'convicted for blowing up
federal drug informant Lee Carter Jr.
with a car bomb in 1993.
PR- A women visiting her husband
was arrested on February 16. 2008,
after she tried to use her seven month
old baby to conceal contraband in the
baby~s diaper. Officials say that
Jennifer Rivera Torres, 23, a'rrived at
the VP section of the 308 Bayamon
Prison in Puerto Rico with her baby.
When officials held the baby while
she was being searched. the officer
felt the, baby was too heavy. The
officer then proceeded to a room
where she took the diaper off and
found IS pills. two cellular phones,
wires, and cell phone cards.
PR- A Puerto Rico police officer was
convicted on April 13, 2008, of first
degree murder. Officials say that,
Javier Pagan Cruz' killed an unarmed
man in a shooting captured on, video
tape last year, in, Humacao. The
incident occurred after the victim
insulted an officer as police
responded to a traffic jam and a
scuffle followed. The ex-cop faces a
maximum, of life in prison.
TN- The Associated Press reported
on March 3. 2008. that according to
statistics supplied by the state, 502
claims of abuse at state-run juvenile
facilities had been filed from 2004
through mid-2007. The report stated

that 14 of the claims were
substantiated. l>uring this same
per:"d, 450 employees at the 1,6
juvenile facilities were reprimanded
or fired. However. no reasons were
specified.
TX.. After 23 years in prison for a
rape conviction. Thomas McGowan
walked out of a Dallas courtroom
along with two attorneys from the
Innocence Project on April 16,2008.
,DNA evidence cleared McGowan
from the rape conviction.
TX- Lawyers from the Innocence
Project of Texas say that a prisoner
exonerated by DNA evidence on
April 29. 2008. served the longest
sentence in U.S. history by a prisoner
later exonerated by DNA evidence.
James Lee Woodard, 55. had served
27 years before he was exonerated.
Woodard
was
convicted . in
connection with the murder of his
girlfriend in 1980.
TX- A policeman was sentenced to, .
life in prison, plus 75 years on March
13, 2008. after pleading guilty to two
counts of aggravated sexual assault
of a child. Salvador Hernandez, 35,
had' been accused of raping and
impregnating a 12-year-old girl in
2006. Officials said that the girl
terminated the pregnancy on a
doctor's advice.
The
King
County
Ombudsman's ,Office released, their
review on April 17, 2008. into the
death of a jail inmate who died last
year. Lynn Iszley, 47. had
complained about having severe
abdominal pain for two days before
he died from a perforated ulcer at the
King County Jail. Two medical
experts wrote that the staff
overlooked or ignored symptoms that
Iszley was suffering from more than
drug withdrawal. said the report.

WA-

Compiled by MelvinPb:ez _

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