FDOC HAZARDOUS TO PRISONERS HEALTH
By Mark Shenvood and Bob Posey

• Thirty percent of the 129 doctors
who provide medical care to prison·

ers incarcerated in the Florida Department of Corrections (FDOC)
have marks on their records ranging
from malpractice to fraud. The
FDOC rarely fires or disciplines
doctors it hires. even in cases where

negligence causes prisoners to die.
• Dozens of Florida prisoners have

died since 1994 after receiving inadequate health care.

• Recent Slate and federal legisla·
tion have made it almost impossible
for prisoners to successfully sue the
Department of Corrections when
subjected to medical malpractice,
even when it results in disfigurement or life-threatening complications. Even if legal action was successful, prison doctors are shielded
from personal liability and taxpayers are required to. cover any legal
judgments against the doctors.

PLP

• At least one in every nine Florida
prisoners suffers from severe mental illness which prison guards are
not trained or equipped to deal with.
The above are just a few of the
findings of a special investigative
repon conducted by the 81. Petersburg Times recently. In a three pan
series lhat made headlines in that
Centrol Florida newspaper during
lhe month of September, facts and
statistics were revealed about the
Florida prison system that had been
concealed from the public.
While prisoners in Florida, and
their families, have been very aware
that die quality of medical care has
been going downhill for several
years, and while taxpayers have
been paying more and more, the
Depanment of Corrections has been
able to keep lhe true state of affairs
from public scrutiny.
The special report by the Times,
which ran from September 26lh

INSIDE THIS ISSUE:

GRAND JURY CONVENED IN VALDES' MURDER
A SYSTEM OF JUSTICE
AIDS, HIV RATES HIGHER IN PRISON
FDOC SECRETARY MOVES TO RESTRICT MEDIA ACCESS
NOTABLE CASES
THE STATUS OF PAROLE IS A CONSTITUTIONAL QUAGMIRE
FSP PRISON GUARD ARRESTED IN DRUG STING OPERATION

through the 28th, shows that the
DOC has been 8 dumping ground
for troubled physicians. Doctors
who have repeatedly losl malprac·
tice claims, been found guihy of
sexually abusing their patients, been
found guihy of fraud, and who only
have temporary or restricted licenses, or who have been disciplined by the State Board of Medicine, are a bargain for lhe DOC.
And that appears to be the real incentive for the DOC, which is con~
stitutionally required to provide at
least some health care for the
68,000 prisoners in its custody.
Life and Death Cost-Cutting
The average doctor straight out
of medical school averages
$120,000 a year. The DOC pays far
less, with salaries for the doctors it
hires to treat prisoners running from
S72,OOO to 586,000 a year. \Vilh
prison doctors being fully indemni·
fied by tbe stale, lhe prison system

FPLP

offers a safe haven for troubled
doctors by allowing them to avoid
malpractice insurance Ihat increases
when a doctor has problems.
David Thomas, the DOC's chief
doclor, admits that economics is a
factor in the quality of doctors hired
by the department. But that does nOI
trouble him. "Clearly, you would
prefer people that don't have any
problems," Thomas said. "But I do
think Ihere is a place for welltrained people who have made a
mistake, and we may be wellplaced to do that because we have a
degree of control over our doclors
that the outside world does not."
The Times reported in Ihe first of
its investigative series that dozcns
of prisoners had unnecessarily died
aner receiving inadequate mcdical
treatment since 1994. Some critics
question the reasons why the DOC
is so willing 10 hire dociors wilh
questionable histories and put them
in charge of a $225-million heallh
care system, and the lives of prisoners.
"Those numbers arc pretty atroCiOllS", said Randall Berg, a lav"'Yer
with the Florida Justice Institute in
Miami. "it shows they really don"t
carc what level of care is provided they're operating on the cheap.'"

Shady Physicians
The Times investigation discovered tnat of the 129 doctors employed by the DCC sixteen have
had 10 payoff previous medical
malpraclice claims in Florida, some
more than once.
Fourteen prison doctors - or
II percent - have disciplinary records with the state medical boards,
a relatively rare distinction where
last year less than half of 1 percent
of the nation"s doctors were disciplined by a medical board.
Seven of the DCC doctors
have been disciplined more than
once by medical boards and nine
are listed in a book entitled Qucs-

F.P.L.P. VOLUME 5, ISSUE 6

FLORIDA PRISON LEGAL
PERSPECTIVES
POBox 660-387
Chuluota, Florida 32766

tionable Doctors Ihat is put out by a
national consumer group.
Three of the DOC's doctors
have a history of sexual misconduct
with patients.
Fifteen of the DOC's doctors
nre practicing on temporary or restricted licenses. Because of an exception in Florida's law, doctors who
have restricted licenses or have not
passed either the Florida or national
medical exam, but arc licensed in another stale, may work in Florida"s prisons.
Overall, only one-third of all
the DOC's doctors are certified in a
specialty, a requirement generally necessary to work at a hospital or for an

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Publiwr

Editor
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Reselreh
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HMO.
Between 1996 and 1998 the
DOC admits it only reported three
doctors to the state medical board.
Two of those doctors, Abigail
Rosario~Rivern and Frederick Yontz,
are still employed by the DOC even
after being reported 10 the medical
board for negligently allowing prison·
ers in their care 10 die.
The department is even willing
to hire and place in positions of authority doctors who commit crimes.
Dr. Robert Briggs, the chief medical
executive at Charlotte Correctional
Instilulion, plead guihy in federal
court in 1981 to filing fraudulenl
Medicare payment invoices. .
Other examples of questionable
doclors noted in Ihe Times report include Dr. Effong Andem. He was disciplined in 1994 by the army on
charges that included "lack of attenrion lo.dctail, failure to assume responsibility for patients, failure 10 admit or
recognize errors, and failure 10 learn
from mistakes." The next year, he was
hired by the DOC.
Dr. Mireya Francis was disciplined by the Florida Board of Medicine in 1993 for dispensing drugs to
mentally ill patienls without first perfonning psychiatric evaluations. In
1995 she was again disciplined for lying in her application about being de-

l~C.

A 50l(e)(J) Non Profil Organizalion

BRIAN MORRIS
Admin. Auil.

LISA FAULKNER

TRt\CIROSF.

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PillLlP BAGLEV - SHARON SIMMONS
TERRV VAUGHN. MICHAEL LAMBRIX
AUN J. COlTON - JAMES QUIGLEV
JAMES TA VLOR· JUDIE IlIGIlTOWER
CARL WELLS -GLENN SMlTfl
MARK SHERWooO· F.ARN HOWARD
UNOA GOITUEB· SUSANNE M. MANNINO
JANE PRATI· PAUL ADAMS
KlM8ERL Y PEOPLES· OSCAR HANSON
JAMES r-.wOR· ENRIQUE OIAl

PR1SO~ LECiAL POOI'ECl1\'E$ 1. publ.o.o.d bomIInIIIly by FIarid.P>l........ l..<pIAid 0.......1-. r.... "2)2
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NOTICE
The information In this pubtieauon proVides news
~nd opinion from various SQurtes and mlY .ot
provide sun1eient mfDfIMtion 10 deal ""th a lepl
problem. Neithel the publisher, nor SllllT, WIIrnlnll
or represents the suitabIlity of the InfOflMUon in lhis
publlcalion for ir\$lilUlin& any legal lelion
An
atlOlney or other knowledgeable person in ~ disputed
Drea sliould be eomutlcd ror C.(pcricncc In legal
areas Th,s publication should not be relied on lIS
aUIMrIlllth'e cil,rion

Page 2

nied from practlcmg medicine in
Ohio. The DOC hired her despite
those marks on her record.
Dr. Arnold Azcuy is a medical
executive al North Florida Reccption
Centcr. He is in charge of reviewing
prisoners' medical cases sllltewide
and makes cost-control decisions
about when to deny care. Dr. Azcuy
paid out on three medical malpractice
suits before coming to work for the
DOC. Two of his claims, both in
1993, involved the deaths of his patients.
Another DOC doctor. Stanley
Dratler. lost his medical license for
three years in 1986 for fondling female patients. Before coming to the
DOC, Dr. Jose Gonzalez was disciplined by the medical board after giving the wrong medicine 10 a pregnant
woman causing her uterus to rupture
and the fetus to die.
I)ying by the Dozens
The DOC maintains that the
medical care being provided (0 prisoners is as good as one can get on the
olltside. But then they never thought
anyone \\ould care enough to look
closer. or that DOC SecretaI') Moore
would uninlentionall) open up Pandora's box.
Earlier this year Moore proposed to Gov. Jeb Bush that money
could be saved if three oversight
committees, the Florida Corrections
COllllllission (FCC), the Correctional
Medical Authority (CMA), and the
Correctional Privatization Commission (CPC), were done away with.
Moore told Bush that those entities
(that provide n measure of oversight
of the DOC's operations) are unnecessary, that the department can supervise itself.
That proposal rumed a few
feathers and focused altentian on just
what those committees do, ironically
Ihey are very seldom ever heard from
or mentioned in the news.
The members of the CMA, a group
set up by the legislature to audit
prison medical care in 1993. appar-

F.P.L.P. VOLUME 5, ISSUE 6

endy did not appreciate Moore's proposal 10 do away with them and in
September they struck back with a
news release thut prompted widespread media coverage.
According to the CMA, since
January 1994 at least 56 Florida prisoners have died from inadequate
medical treatment. Thnt's almost one
in eight of the 463 deoth records that
the eMA reviewed for that period.
"These deaths could have been prevented," said Linda Keen. executh e
director of the CMA. Instcad, for
years, CMA records indicate, Florida
prisoners hove been dying by the dozens as a result of substllndnrd or simply negligentlTlcdicol carc.
The CMA has been doing the job it
was authorized 10 do. It pays consulting fees to private doctors with no ties
to the DOC to review a sampling of
deaths at the state's prison hospitals.
Every few weeks the CMA sends a
report on the findings of Ihose doctors
to the governor. the legislature. and
the DOC. BlIt the CMA cannot tell
the DCC to do anything. their power
is strictly limited by law.
Kay I-farris. who is in charge of
preparing the Cr>.IA rcpons. said shc
feels that despite the obvious prob·
lems exampled in the repons that
nothing ever changcs. '-The a\crage
John Q. Cilizen doesn't care aboul
inmate health care," Harris said.
The chief administrator of the
DOC's health care system, John
Burke. disputes Ihat the depanment is
at faull. Despite Ihe CMA's assertions. the depanmcnt's record is a
good one, he claims. '-A perccntage of
people are going to die no matter
what you do, and I don't think our
percentage is inordinately high considering the population we take care
of:' Thomas said.
Thomas also noted Ihat there arc
an additional 820 prisoner dcaths
since 199~ that the Cr>.IA hasn't reviewed. and knowing that they don't
have the funds. he disingenuously
asked why they didn't review them
too. ;'Wc'rc not perfect," Thomas de-

fensively said, "People make mistakcs, and other people suffer for it:'
Bedfam in the Sun
The 51. Pelershllrg Times report
did not stop by just looking at the
medical hell that Florida Prisoners are
incre~lsingly being subjected 10. The
third pan of the Times' series explored the care that the increasing
number of mentally ill prisoners receive while in florida's prisons.
According to a recent study by the
U.S. Justice Department, an estimated
284,000 prisoners - 16 rercenl of Ihe
U.S. prison and jail population - suffer from severe mental illness. (Sec:
FPLP, Vol. 5, Iss. 5, "Mentally 111
Prisoners") Many experts sny that Ihe
Justice Department's study confirms
the belief that prisons have become
the nation's new mental hospitals.
With thc wholesale closings of
public mental hospilals in the 1960's
and the prison-building boom of the
past two decades. prison oncll becomes the only option available to
menially ill persons unable to cope
with the pressures of society. From a
high of 559.000 in 1955, the number
of patients in state hospitals nationwide dropped to just 69,000 in 1995.
At the same lime. the number of jail
and prison beds has quadrupled in the
last 25 years, with over 1.8 million
Americans now behind bars.
Florida is IlOt an exception. As
noted in the Times repon, with the
state prison population over 68.000,
at least one of every nine prisoners in
florida suffers from severe mental
illness.
For some of the incarcerated mentally ill, prison offers access to psychotropic drugs and Irc:Hment that
they lIlight 1101 receive 011 the outside.
But for others, prison orten cxacerbales their illnesses as they struggle
to deal with officers unable or unwilling to distinguish between mental
symptoms and willful unruliness.
Punishment and discipline against
mentally ill prisoners IS common and
on averagc results ill considerably

Page 3

longer rime behind bars, the Justice
Department study found.
;;;\ prison is absolutely the worst
place for somebody with severe mental illness. and absolutely ccrtain to
exacerbate their symptoms," said Ron
Honberg, legal director for the Na·
tional Alliance for the Mentally III.
John Burk, dcputy dircctor for the
Florida DOC's health carc system,
said, ;;Once these guys are put in
prison they've gOI to function in a
structured environment - a very structurcd cnvironment - and some of them
can·t. But Ihat's not a correctional of·
ficer's fault:·
Many experts feci that without it
being necessary to assign just who is
at "fault;' it is obvious that the Flor·
ida DOC is doing a poor job of deal·
ing with a growing crisis within the
prison system as concems the mentally ill. Mental health slaff in the
prisons arc often ovcnvhelmed by
their case loads and operate in an atmosphere wherc guards and adminis·
tmtors view mental health staff as
coddlers who nrc easily mllnipulated
by prisoncrs.
"Often its security who wants to
make the call that inmates (fake men·
tal heahh problems), so that it's okay
not 10 provide treatmcnt for them.
There's an attitude thm all inmales are
(faking]," said Helen Cunningham,
who quit the DOC in August as Baker
Correctional Institution's senior psychologist. Cunningham said she often
had 10 wait days before guards would
bring prisoners rcquesting mental
heallh care to her. She said she was
treated worse by prison guards if she
wrote up reports on allegations thm
prisoners had bcen abused, as she was
often required to do.
The DOC spends ovcr S-l6 million
a year on mental health. but still is
falling behind. In the last two ycars at
least 65 mental health stafT positions
havc been cu!. Thc incrcflsing num·
bers of mcntally ill entering the sys·
tern and lhe rising costs of psychotropic drugs is growing fasler than Ihc'

F.P.L.P. VOLUME 5. ISSUE 6

DOC budgct.
"It's being tightened down as tight
as we can gct it," said DOC's John
Burke. ';(But) we think we're still
providing care that meets the constitutional standard:' Not so, says others,
even former DOC emplo)'ees.
Destructivc Solution
"As thc)' cut mcntal health scr·
vices, which is whm thcy'rc doing,
yOli arc going to have more and lllorc
inmates who are unmanageable because of mental illness," said Connie
Schenk, a fonner DOC psychologist
who quit in frustration during August.
(See: This issue, "Beatings, Corrup.tion, Cover·ups Detailed to Senate by
Prison Psychologist.") "The way (thc
DOC] deals with mcntally ill inmates
who can be problematic is just to put
them inlO close management (sensory
depriving confinement]. where they
don't get near the access to help thai
they used to," said Schenk.
According to Terry Kupers, a fo·
rensic psychologist who wrotc a book
about thc devastating impact thaI con·
finemel1t can havc, prisoners left with
little contaci with others often become
psychotic and filled with rage.
Social science and clinical literature have consistently reported that
whcn cvcn mentally nonnal human
beings arc subjccted to social isolation and reduced cnvironmental
stimulation; they may deteriorate
mentally and in cases actually de·
velop psychialtic disorders. The cf·
fects of such isolatcd confinement al·
most certainly creates more problems
for lhose already suffering from mental illncss.
"It becomes a vicious circle especially if the mentfllly ill illl1lme
hurts an officer." commented Kupers.
';Rather than providing any therapeutic treatment, Ihe guards can gct more
and more brutal. and then the inmates
become even more violent and disruptivc. It just escalates."
Kay Jamison, II professor of psy·
chiatry OIl the John Hopkins School of

Medicine, notes that, "The incarcera·
tion of the mentally ill is a disastrous,
horrible social issue." Subjecting the
mentally ill to isolated confinement
situations "can exacerbnle thcir hallucinmions or delusions," Jamison said.
Yet, despite the wcalth of evidence
showing thc destructive and damag·
ing effects of isolated confinement on
the mentally ill, the Florida DOC has
actually incrcased its usc, and plans
to increase it even further without
consideration of the long term effects
or the eventual cost to society or tax·
payers. (Sec: FPLP, /3 .. t iJ>suc, "The
Return 10 Draconian Days in FDOC).
Decndes of Neglect
Allegations and cvidencc thm thc
medical care available to Florida prisoners is far below recognizcd standllrds, and thaI unneccssary dcaths
result from same, are nothing new.
For 20 years. between 1973 and
1993, Florida's prison system was
under the control of federal courts in
a case that started oul challcnging the
poor qualily of medical care provided
to state prisoners.
Throughout thai case courl·
appointed mcdical teams found that
prison officials were prO\'iding be·
low·standard medical care time aftcr
time. After COSily improvemcnts. and
prcssure from thc federal COllrt. that
casc was finally settled in 1993. wilh
the state promising to provide medi·
cal and menIal health treatment
equivalent to the community's stan·
dard of care.
Bill Sheppard, the lawyer who
reprcscnted prisoncrs in that federal
case, said that the problcm today is
the slime as il was two decades ago:
Lack of money.
"Every damn death I've seen
is a sad story," Shcppard said. "And
thc legislatutC is the ...damn cause of
it."
Another lawycr, RnndalJ Berg
of the Florida Justice Institutc, said
medical care did improve in thc prisons up through the lawsuit in 1993.

Page 4

"Things gOI measurably better. But il
didn't take long for it 10 gel back
where it was.... And ii's getting pro·
gressively worse." Berg commented.
It has become so bad and prob·
lems are so rampant that even Flor·
ida's nonnally prison·myopic legisla·
tors have had to take noticc. Accord·
ing 10 Sen. Skip Campbell, D·
TamMie, vice chainnan of the Senate
Criminal Justice Committee, "I can
assure you I get a leiter a month from
inmates saying, 'Tm nOI gelling
proper care.' I'm slarting 10 believe
now Ihal maybe Ihey arcn'l gening
the treatment [they need]:'

reduce the exorbitant phone rates be·
ing charged family members and
friends of Florida prisoners.
It is reality that it takes money for
the organization to operate. Subscrip-tion donations cover the costs of pub.
Ii cation and distribution of the news·
leller, but leave lillie left over to finance the other efforts that are so necessary if change is to be had.
As veteran supporters of FPLP
know, during the last IwO legislative
sessions in Tallahassee, FPLP has
been one of the primary sponsors of
d(ly~long rallies held in the Capitol
Rotunda to educate lawmakers about
problems wilhin the Department of
lSource 51 Petersburg Times. 9126-28i99 Or- Corrections. Once again FPLP will be
fandoStntlfU'f/III'99]
in Tallahassee working for prisoners
lind
their families in April 2000, only
FPLP NEEDS
a few short months from now. Your
YOUR SUPPORT
donations arc needed 10 make this upTeresa 8I1m.f. Publislwr
coming Rotunda Rally the biggest and
Thc publicalion of this newslcner most successful ycl. Money is needed
and Ihe projects takcn on to benefit for displays, brochures, rental of ta·
Florida prisoners and their families is bles and chairs, rental ofa PA system,
made possible through Ihose who and hopefully to allow some transpor·
suppon tbis valuable resource by sub· tat ion 10 be rented so people can at·
scription and supplemental donations. tcnd from Ihe middle and soulhern
In the past year the organization portions of the state.
Now is the lime your suppor1 is
has worked hard to address the con·
needed.
If you have not made a donacerns of its members and has
to
FPLP
recently, please show
tion
achieved numerous successes through
SuppOr1
by
making a donation,
your
those efforts. FPLJ> staff and menlbers successfully had the FDDC re· large or small· every lillIe bit will
consider its plans to reSlrict mail to help to allow FPLP to continue being
and from prisoners and prohibit effective in the coming months and
stamps from coming Ihrough the mail. year.
FPLP is your voice, speaking Olll
FPLP slafT successfully assisted in
and
taking action. If you believe in
having new visitation laws adopted
Ihat will result in improved visitation the purpose and goals of FPLP then
for families with an incarceraled don't delay ~ send in your contribuloved one. The staff has mel with and tion today. All donations are tax de·
provided information to statc legisla· duclible.
Togcther, we have made and will
tors, news reporters and law cnforce·
continue
to make changes. _
ment agencies concerning the conditions of confinement that prisoners
GRAND JURY CONVENED
arc being subjected to. And FPLP has
IN VALDES' MURDER
worked by itself and with other or·
ganizations 10 correct problems at
GAINESVILLE Alachua
several institutions ovcr the past year,
County
grand
jurors
convened
and rccently FPLP staff have been
working to have something done to 9/29/99 10 begin a review of the sus·
pected beating murdcr of former

F.P.L.P. VOLUME 5, ISSUE 6

death row prisoner Frank Valdes by
prison guards at Florida Siale Prison
(FSP) on July 17, 1999.
The grand jury is expected to meet
several times, up until January 10th, 10
examine the facts surrounding Valdes'
death and to question witnesses.
Eleven people were subpoenaed before
the grand jury on the first day in what
was described as a scene-setting
meeting to familiarize the grand jury
with this case that has rocked the Flor·
ida Depanmenl of Corrections.
Among those who appeared the
tirst day were James Crosby, warden
of FSP; William Hamilton, Alachua
County Medical examiner; Jimmie
Burger, a nurse who examined Valdes
at the prison and who later resigned
from the DOC; a prison medical re·
cords employee and nursing supervisor
for the DOC; lind, two Bradford Co.
paramedics.
Earlier in September, Chief Circuit
Judge Robert Cmes granted State At·
torney Rod Smith's motion to change
venue of where Ihe grand jury would
convene from Bradford Co., where
FSP is located. to Alachua County.
Smith had argued that a grand jury in
Bradford Co., would be "improperly
comprised" since FSP is the largest
employer in the small rural county.
Several prisoners who were in
cells in the immediale vicinity of
where Valdes was allegedly brutally
beaten and stomped to death, resulting
in cvery rib being broken and his testicles crushed with boot prints covering
his body, are expected to be lestifying
before the grand jury at some point.
Nine officers are suspected of involvement in Valdes death. This scandal has opened the DOC up to intense
media scrutiny in almost every area
and lead to almost continuous revelolions of gross mismanagemem, abuse
of prisoners and corruption in the DOC
since Valdes denth.
In a preliminary move, 011 October
29 Ihe grand jury issued a sealed indictment against one of the nine
guards, Montrez Lucas, charging him

Page 5

witll aggravalcd banery, battery on an rastly maintained lhat he did not pull
inmate and coercion to aller reports. the lrigger, but he still ended up with
Those charges stemmed from an inci- a death sentence in 1990.
Under a deal made with Virginia
dent the day before Fmnk Valdes was
beat to death. According to authori- during A.uguSl, Bill was sell! to that
ties, Lucns had beat Valdes on July state's death row early in October,
16, and then altered reports to hide his and a Virginia prisoner, probnbly not
actions. Lucas lurned himself in 10 from death row, will be sent to Florpolice on Nov.] and was released on a ida in exchange.
"To the best of our knowledge,
$50,000 bond.
we
have
never transferred a death row
A prosecutor in Gaincsville said
lhe 21 member grand jury will con- (prisoner) before, bill because of the
tinuc its investigation and murder unique circumstances surrounding
charges arc expected to be filed in the Van Poyck...we have decided he will
be in lhe Virginia system inderi·
Valdes' death.
On NovA eight of the nine sus- nitely," said FDOC spokesman C.J.
pended guards suspected in Valdcs' Drake.
Bill is expected 10 be a willless as
murder appeared .1t a 90-minute
the
invesligation continues into
closed door meeting ill Gainesville
called by SUite Attorney Rod Smith. Frank's death. In the two weeks beA source stated the meeting was fore Frank was killed, Bill had been
callcd 10 discuss whelher the guards writing numerous letters, including
will have anorneys represent lhem as one to a Federal judge and various
reporters, warning that guards at FSP
individuals or as a group.
[Source: Gainesville SUII; 9/29-30/99; were "OUI of control" and routinely
beating prisoners on the now infaFlorido Til1le.~ Vl/iOll, 11/3,4,5/99] •
mous X-Wing. Arter Frank was killed
he continued to write to whoever he
VAN POYCK TRANSFERED
thought
might listen, detailing how
TO VIRGINIA
guard bem Frank to dealh and how
One of Florida's most knowl- both he and Frank had been threatedgeable and effective prison litiga- ened by guards throughout their incarlors, William Van Poyck, 45, became cenl.lion at FSP.
Prison officials claim lhey did nOl
the first prisoner on Florida's <Ienth
transfer
Bill to keep him quite or 10
row to ever be trnnsferrcd to another
censor
him.
state through the irllerstnte compacl
Bill Van Poyck was nol just ansystem.
olher
condemned prisoner on FlorThe transfer allegedly stemmed
from prison officials' concerns about ida'g dealh row. He was known
Birl's (as he is known to his friends)- Ihroughout the prison system, by prissafety. and the safety of correctional oners and officinls, as one of Florida's
officers, following the suspected beat- foremost jailhollse lawyers. From his
ing-murder of Bill's co-defendant, dealh row cell, he legally challenged
Frank Valdez, by guards at Florida his and other's orten inhumane or unconstitulional conditions of confineStale Prison (FSP) on July 17th.
Bill and Frank were both on death ment. Bill's criminal attorney Gerald
row for the killing of prison guard Bettman said he has a sharp legal
Fred Griffis in 1987. Bill and Frank mind, a fnct the DOC well knows
were allegedly allempting 10 free pris- where several cases riled by Bill, or
oner James O'Brien as he was being on which he assisted, established sigtransported to an olltside doclOr, when nificant chnngcs throughout the de·
Griffis refused to give up the transport partmenl.
When requested" to sign the papervan's keys and subsequently was shot
work
for his transfer to Virginia, Bill
three times in Ihe head. Bill has stead-

F.P.L.P. VOLUME 5, ISSUE 6

reluctantly agreed because in his own
words, "Nothing can be worse than
Florida."
(Source: .51 Pelersburg 7i'mes, IO/5f99; Ilill
Van I'oyckj •

A SYSTEM OF ,JUSTICE?
Drew Hanson
When ajl/sf calise reaches if:.'jlood
fide... whale}.·er sfa!1(l~ in the way /flllst
fall before il.\' overwhelming power.

Carrie Chapman Cau
[n the wake of new allegations of
corruption within the Department of
Corrections (DOC) following lhe
dcath of an inmate al Florida State
Prison (FSP), Ihere has been n Oood of
questions regarding the competency of
the majority of DOC's workforce.
Following the murder of death row
prisoner Frank Valdez, fellow correctional officers buill a nood gate to circumvent the Oood tide of inquiries
~rom law enforcement officers seeking
IIlculpatory evidence against the officers involvcd. Not even the death of a
human being could make a crack ill
the floodgate that would create a break
in lhis wall of silence. Even lhe Bradford COl/II'y Telegraph, which happens
to be the local newspaper for Bradford
County where FSP is located was indiffercnt to the lllurder thaI occurred in
its coullly. The papcr' s c<lilor, John
Miller was quoted as saying: "It's not
a hot priority news issue to us
" [Miami Herald. 7/23/99]. Mr. Miller
's comment said it all. Injustices to inmates are nOI II hot priority.
This code of silence is indicative of
the mentality of the correctional slafT,
and there are two schools of thought as
to why the correctional industry has
produced this breed of officer.
Firsl and foremos!. silence - as to
injustices of inmates - is as old as the
institution of penal systems itself.
from Ihe inception of prisons, prison
guards have established and maintained a unique idiosyncrasy. Usually
officers of rank will indoctrinale subordinates as to how to conduct themselves in frOllt of olher staff as wcll as

Page 6

the prisolipopulation. This indoctrination is broad in nature and requires
strict compliance. Those who do not
comply, find themselves out of a job.
Second, the reason it's easy for the
higher echelon to indoctrinate the
subordinates is because of the caliber
of individual the prison industry hires.
DOC has always sought employees
who can demonstrate "an indifferent
attitude" towards prisoners. The ideal
officer is one who is not prisoner
friendly.
A recent report has disclosed that
more than 1 in 6 Florida guards have
criminal records. A background check
on Florida State Prison located at
Starke revealed that out of the 5 II
guards employed by FSP, 89 have arrest records. Out of the 89 guards
with' ·arrest records, II faced courtordered punishment for violent
crimes, and two are repeat offenders.
[Source: St. Petersburg Times; Associated Press, The Times Union,
8/23/99]. Unlike" other law enforcement agencies, the DOC does not require psychological or polygraph tests
to weed out undesirable applicants.
Many experts question
whether it is reasonable to expect
guards who can't behave themselves
on the outside to use force judiciously
on the inside. Thomas J. Archambault, head of the TJA Training Resource Group, a Vermont company
that trains prison guards, said, "if you
have a person that has been convicted
of assaultive behavior, obviously they
are out of control": Archambault continued that it follows that we don't
need out-of-control officers in a position ofcontrolling people.
Corrections statistics show that
1,560 of Florida's nearly 16,000
guards have been charged with a
crime in the past five years. Records
from the state's Criminal Justice
Standards and Training Commission
Web Page Address:
bttp:/Imemben.aol.com/rplplfplp.blml
E-mail Address:fplp@aol.com
Telephone: (407) 568·0200

F.P.L.P. VOLUME 5, ISSUE 6

show that Florida's state prison
guards are more than twice as likely
as police officers to violate state standards of conduct. From January 1998
to June 1999, over 750 officers were
brought up on disciplinary charges
ranging from sexual assault to shoplifting to use of excessive force on a
prisoner. The Standards and Training
Commission's 19-member panel suspended or revoked the certification of
263 guards and issued another 144
letters of reprimand.
Standards and Training Commission 'Chairman Richard Coffey stated
that DOC is more interested in getting
a quantity of people rather than quality. Coffey went on to say that he has
seen enough. He believes the problem
stems from the lack of formal education that these officers bring when
they entered the DOC workforce. Surveys conducted by the Commission
show that correctional officers are
much less likely to have attended college compared to more than 50% of
the state's police force who have at
least two years of college. This, according to Coffey is why a person
with no college is five times more
likely to end up with a disciplinary
case. This discrepancy between correctional officers and the state's police force is very much known to
David Murrell, executive director of
the Florida Police Benevolent Association, the union that represents state
corrections officers. Murrell said, "I
don't know if corrections officials are.
more vigilan"t or corrections officers
just tend to get in more trouble, but
we are .aware ~f it". .
. ..
An mterestmg twIst to the dlsclphnary pro.cess that Coffey finds problematlc IS that not all cases actually
r:each the Commission. Coffey stated
that the Commission is at a disadvantage because it hear~ only cases .that
are referred" by a pollee or correctIons
officers' agency. When allegations are
made, the agency does the initial investi.gation and then passes it along.
ObViously not all cases that should

reach the Commission actually do.
State Representative Allen Trovillion who is the chairman ofthe House
Corrections Committee would like to
see all law enforcement candidates
face tougher education requirements.
Rep. Trovillion recognized that with a
higher standard comes a low candidate pool. While a low candidate pool
may factor into the equation when
raising the standards, this alone
should not deter a higher standard.
Higher education produces less disciplinary actions against correcti9nal
officers and provides the DOC with
competent, stable officers to manage
the 63,000 plus state prisoners in
Florida.
A just cause has reached the flood
tide, we need more accountability for
the type of officer DOC hires to control the prison population; it's time
for the bureaucratic wall to fall before
the overwhelming tide of fair and
equal justice. _

WORK RELEASE
ELIGIBILITY ISSUE
According to information received by
FPLP staff, approximately five
months ago prisoners at many institutions started being told by classification officers that a memo had been
received from FDOC central office
reducing the time frames for work release consideration. (See also: FPLP
Vol. 5, Iss. 5, "Sound Off' letter fro~
TF).
An inquiry to the Joint Administrative
Procedures Committee (which oversees all state agencies' rule making in
Florida) resulted in the following response from the Com~ittee's chief
attorney William H. Harold: "1 have
received your letter and the attachments provided regarding Rule 339.023 (6)(b), F.A.C. Based upon the
information in your letter I contacted
the Florida Department Of Corrections regarding 36 month versus 18
months. Based upon my research of
the rule and statements in the letter

Page 7

from Ihc Dcpartmcnt of Corrections
(copy attached) the 36 month time
frame is what the ':U1e provides for
the specific circumstances listed in
the rule, and it has not been changed
to 18 mOrHhs." Thai response was
dated September 9, 1999.
In the "attached letter" referenced
in that response, dated September 3,
1999, to Wm. Harold from Perri K.
Dale oflhe FDOC, was stated: "Rule
33-601.602
(formerly 33-9.023)
has nOi been amended to change Ihe
time frames for eligibility for consideration for community release programs."
Therefore, lhe FDOC central of·
fice is denying thai there has been
any change in the time frame eligibility requirements for work release.
If any FPLP reader has a copy of
the memo that was allegedly sent
from Ihe central office directing such
a time frame c1mnge, please send our
slaff a copy of it. •

FDOC SECRETARY MAY
CUT ADMINISTRA TlVE
POSITIONS SO MORE
GUARDS CAN BE HIRED
In September 1999. Department
of Corrections Secretary Michael
Moore announced that he is looking
at ways to hire more prison guards by
cutting a beneficial program designed
to divert nonviolent offenders from
the prison system and by reducing
DOC administrative staff, including
the elimination of all librarian positions al institutions statewide. These
cuts will generate the money necessary to hire more prison guards.
In response to Governor Bush's
budget cuts, administrative agencies
have been advised that if they wish 10
add something in the next fiscal year
they will have to suggest ways to pay
for it without state dollars. Moore
made several suggestions. One suggestion was to cut the pretrial intervention program operated by the
DOC and to usc that money to hire

F.P.L.P. VOLUME 5, ISSUE 6

up to 567 new prison guards.
Another suggestion made by
Moore was to reduce the DOC's administrative staff by 287 positions.
which would include all librarian posi·
tions throughoLlt the state.
Critics of Moore's proposals, including members of the Florida Correclions Commission, Public Defenders and State Attorneys, note that his
suggestions would cost more in the
long run because it would cost Illore to
incarcerate a individual than to place
him in a pretrial illlervention program.
Stale legislatures will have the final say on thc prctrial program when
the)' put the budget together during
next spring's legislative session.
[Source:

Or/alldQ Semilltl. 9/23199]

AIDS, HIV RATES
HIGHER IN PRISON
A report released during Sept.
1999, that was funded by the Centers
for Disease Control and Prevention
(CDC) and the National Commission
on Correctional Health Care, shows
that prisoners and those newly released
from prison are much more likely to
have AIDS and other infectious diseases than people in the general population.
This study was the first national
'estimate of infectious disease rates
among prisoners, and found, in parI,
ihnt the prevalence of AIDS is five
times higher among prisoners than in
the general populmion. And significantly, the number of prisoners infected with HIV is eight to tell times
Ihm of the general population.
Lead researcher Theodore
Hammell of Abt Associates, a Cambridge, Mass., think tank, said, "The
vast majority of prisoners return to the
community. Treatment (while incarcerated] will not only benefit prisoners.
their families and their sex partners,
but public health."
Other findings of the report include: Up to 17 percellt of the 229.000
Americans with A[DS went through
jailor prison during 1997; Up to 19

percent of the 700,000 people with
HIV ill 1997 spent time behind bars;
and, up to 32 percent of Ihe 300,000
Americans with hepatitis C went
through a correctional facility in
1997.
[Source: USA rODA )', 9/1/99] •

BEATINGS, CORRUPTION,
COVER UPS DETAILED TO
SENATE BY PIUSON

PSYCHOLOGIST
In a leller to the Florida Senate
Criminal Justice Committee. dated
Sept. 13, " prison psychologist said
she quit her job in frustration after
trying for three years 10 warn prison
administrators of abuse or prisoners
by guards at two North Florida prisons.
Connie Schenk 53. who holds a
doctorate in forensic psychology, quit
working for the Dcpanrnellt of Corrections Aug. 31, after. what she
claims was retalialioll was taken
against her for her repcated auempts
to report prisoner abuse.
Schenk told senators that prison
administrators at both Taylor and
Liberty Corr-ectional Institutions had
met her alternpts with defcnsiveness.
hostility and rcwliation. Offering dctails, Schenk said she had frequcntly
saw injured prisoners at Ihe two prisons who claimed thcy had becn
bcalen by guards.
[11 1996. when she first started at
Taylor el, Schenk said she routinely
filed repons 011 suspected abuse of
prisoners. She said omcers and supervisors either did nothing or became hostile towards her about the
reports. "I wcnt to the warden, Greg
Drake, and told him abuse was going
on [in the confinement lin its]. He JUSt
said. 'I don't think so. Dr. Schenk:'
"Absolutely nothing would happen."
she said.
At Libeny Cl, Schenk said she
trlcd to be more diplomatic in reporting the abuse she found. She reponed
her concerns more inronnalJy until

Page 8

last year when a prison guard came to
her and told her he was being threat~
ened by fellow guards whom he had
seen beating a prisoner. She and the
guard then went to the state inspector
general and Florida Depanment of
Law Enforcement (FDLE) officers
were sent to investigate. The inspec~
tor geneml's office said the case remained open almost a year later, and
was still open as of Sept. 1999.
Schenck said she had been told the
FOLE had "referred" the case back to
the DOC to handle as it saw fit.
During July Schenk's boss at
Liberty CI told her to clean out her
desk, that she was being involuntarily
transferred to the Corrections Mental
Health Institution at Chatahoochee,
Florida. She said that was in retalia~
tion for her attempts to report abuse
of prisoners at the prison.
"I can tell you firsthand that corruption is rampant, abuse of inmates
and staff is routine and cover-up is an
established practice (in the Florida
Department of Corrections]," Schenk
wrote to state senators. The DOC did
not respond to reporters seeking comment on Connie Schenk's damaging
allegations about the department.
(Editor: Greg Drake, the former warden of Taylor CI has now been promoted 10 Regional Director over all
prisons in the Northern part of Flor-

ida.]
[Source: Miami Herald, 9/161991 •

FDOC SECRETARY
MOVES TO RESTRICT
MEDIA ACCESS
The secretary of Ihe Florida Department of Corrections (FDOC), Michael Moore, announced during September, following a barrage of attention on the department by the main~
stream news media, that a formal review will be conducted of tile department's policies of media access to
prisoners.
The existing policy, that has been

F.P.L.P. VOLUME 5, ISSUE 6

in effect since 1985, allows the media
to interview specific prisoners by sub~
mitting a written request, and if the
prisoners agree to be interviewed.
Moore wants to change that. In a message posted on the department's Website during September, Moore indicated that prisoners' access to the me~
dia should be restricted, implying,
without slating it outright, that the media is too sympathctic to the
(deplorable) conditions of confinement
in Florida's prisons and too eager to
publicize negative aspects of the department.
Using disingenuous spin control
techniques to try to divert attention
from the true purpose of the consideration to change current policies, Moore
stated in the Website message that the
department's job is to protect the public and crime victims, that, "with criminals committing notorious crimes, with
the media eager to publicize them, and
with more attention being given to the
plight and rights of victims, we are
obliged to review ~ur policies."
Opponents of any change in the current media access policy note that the
news media has not suddcnly focused
on "crimes comrnincd by criminals"
any more than it ever has been. Media
reportage of crimes, even notorious
crimes, occurs at the lime of the crime
or during trials, and before convicted
offenders ever enter the DOC's control.
What Moore's true concern must
be, concludes opponents, is the spotlight that the media has focused on the
department in the past few months following the brutal murder of death row
prisoner Frank Valdes in July,"in which
a gang of historically abusive prison
guards are suspects. Since then reporters have dug up, in some instances
based on information supplied by pris~
oners or prison reform groups, several
very serious problem areas in the department And Moore is 110 doubt concerned that even the FBI is conducting
an investigation of the entire rDOC
citing reports of system-wide abuse of

prisoners. Moore knows the media
will closely report any findings of
Ihat investigation.
The department in general, and
Moore in particular, have been embarrassed and humiliated by the reports that have flowed from Ille me·
dia recently. Back-to-back reports
detailing abuse and corruption in the
department have surfaced in print and
on television and radio repons all
over Florida. Recent news reports
have detailed how -almost \0 percent
of the department's employees have
criminal records ihemselves, many
Wilh violent criminal records. Other
news reports have focused on how
many DOC employees only have
minimal education and are not properly trained.
Moore waS apparently embarrassed when Republican lawmakers
in the state Scnate rorced him to ap~
pear before them in early September
where he was placed on the hot seat
trying to explain what is going to be
done 10 correct the problems that
keep coming to light through the media's attention. And members of the
House have stated that Moore will
also be required to do some explaining to that political body.
Michael Moore did not comment
on what steps might be taken 10 re·
strict reporters access to interview
prisoners about their conditions or
confinement. Nor was any mention
made on the Website message of the
fact that prisoners may contact reporters and other media representatives through confidential mail, although it is felt that this will be the
real behind-the-door focus of the review of tile current policies.
According to U.S. Supreme Court
decisions, prison officials may restrict personal access of the media to
prisoners, as long as prisoners have
alternative means to communicate
with the medin, a right protected by
the First Amendment. The real threal
to Moore and of any desire to continuc the historical and planned future

Page 9

abuse of Florida prisoners is not personal media intervie\\ access, it is
prisoners being able to communicate
with the media period, especially
confidentially.
Any change in the current media
policies of the FDOC will have to be
done through the rulemaking process,
affording revicw and prisoner and
public comment, including a public
hearing if rcquested. The last time the
FDOC to change its rules, approxi·
mmely two years ago. to restrict the
media's 1lccess to death sentenced
prisoners, the result was shock when
several major news agencies challenged the proposed changes and the
FDOC withdrew the proposal. It wi II
be interesting to see what response
Moore receives this time if the cur·
rent policies'are proposed for change.

•
FDOC CLASSIFICATION
OFFICER SUES FOR
SEXUAL HARASSMENT
During October last year Dannette
Fasanella sucd the Florida Depanment of Corrections in federal coun
claiming that she was sexually har·
assed and then retaliated against after
reponing the harassment to prison
administrators. The lawsuit alleges
Ihllt these incidents occurred at Char10llc Correclional Institution located
IIcar Punta Gorda, Florida. Thc lawsuit is still pending in the Middlc
District Fedeml Coun of Florida.
Fasanella stated in the lawsuit that
while employed at Charlone CI thAt
FDOC employee Roben Hummer
would come into her office and stand
on the desk. pretend to be masturbating while saying things like, "I'm
choking the chicken," and make com·
ments likc, "You bull dike bitch."
When Fnsanella reponed these
acts to her supervisor, Lee Arnold,
head of the Classification Depanmelll
at Charlotte CI, Arnold did nothing to
stop thc harassment. In fact,
Fasanella claims in the suit that Ar·

F.P.L.P. VOLUME 5, ISSUE 6

nold began a campaign of retaliation
against her himself. including falsifying job evaluations and placing false
disciplinary repons in Fasanella's files.
Fasanella also claims that she reponed
the sexual harassment to the Assistant
Superintendent, Frank Youngblood,
and to the Superintendent at that time,
David Farcus, who also nevcr took any
action to stop the harassment, while
Youngblood aClUally began harassing
her himself. She claims that after she
infonned Youngblood of the problem
on several occasions he came to her
office and made comments like," You
know how much I like pretty women,"
and "You have such beautiful skin."
Despite her telling him these comments were unwelcome and inappro·
priate he continued making them.
When Fasanella refused to give in to
Youngblood's attenlion she claims that
he began retaliating against her.
Fasanella also claimed in the suit
that olher officials at the prison had
sexually harassed her, including the
prison investigator David Charlwood.
Despite repeated complaints no action
was taken by higher FooC officials to
stop Ihe harassment or retaliation.
Fasanella finally was transferred to
work at the Charlotte CI Work Camp, a
separate unit from the main prison.
This case is numbered 98·412·CivFTM·17D, and is pending in the Fon
Myers Division of the U.S. Middle
District Coun of Florida. _

PREDICTING
ilEATIl AT FSI'
In a l\\enty page lawsuit filed by a
prisoner at Florida State Prison to the
Florida Supreme Court on June 1.
1999, only six \\ceks before death row
prisoner Frank Valdes was beaten to
dcath by suspected prison guards, was
details of FSP prisoners being
"routinely-·as recreationnl sport-systematically assaulted, battered,
jumped on and beaten unprovoked."
The lawsuit fired b)' Douglas Jackson. a prisoner sentenced to life in

prison for murder. told the coun that,
more lives need to be lost before
corrective action from the court is
granted. Whole lives and safety are in
grave danger of being violcntly attacked at any moment, to be severely
injured or, worse yel, killed by stafT."
Jackson clnimed in lhe suit that
beatings have been covered up for
years at FSP rind lhat prisoners are
not given medical care because "that
creates a paper triaL" He also claimed
that internal grievances are not inves=
tigated by central office stafT and that
a "good 01' boy ... code of silence"
prevents complaints from reaching
the oUlside the prison.
Jackson's lawsuit was given
shon shift by the Florida Supreme
Court, which sent it to a lower coun
to review, a lower coun that Jackson
had been barred from filing lawsuits
in previollsly. Jackson had earned a
reputation for filing "frivolous law.
suits" with the couns. having filed
143 according 10 a DOC spokesman,
since his incarceration in 1990. Jack·
son was number three on Fla. Attorney Gcneral Bob Butterworth's list of
the 10 most frequcll! filers that he
used to lobby Congress to pass the
1996 Prison Litigation Reform Act to
almost totally obstnlcts prisoners'
access to the couns.
In an article by Miami Herald
reporter, Lesley Clark. Oil Sepl. 12,
1999. detailing Jackson's IllOSI rccent
lawsuit, it WllS commented that Jack·
son's suit, though prophetic, was "a
case of crying wolf once too often."
·~o

•
CIVIL DETAINMENT
OR PRISON?
by Drew Hamo"

The Jimmy Rjce Act better
known as the sexual predator law
faces a judicial test in the state of
Florida. Under this law those convicted of sexual offenses and who are
designated a threat to society may be
detained in II prison-like environment

Page 10

following their release from prison.
The state's answer to the question of
what to do with dangerous sex offenders about to be released from
prison is: keep them locked up indefinitely for treatment. The catchy
phmse "civil commitment" as used
by the state is anything but civil.
The Jimmy Ryce Act, named for
a 9-year-old Dade CounlY boy who
was kidnapped, raped, murdered and
dismembered in 1995, was crafted to
protect society from dangerous sexual predators known for repeating
their crimes. Under the current law,
those designated to be a danger to society are delaincd following their rclease from prison and face a civil trial
to determine if they should be locked
up indefinitely for treatment. Since
the law went into effect in January, it
has prompted a nood of constitutional challenges. Most recently the
law was held constilutional by a Palm
Beach County coun.. However, the
4th District Coun. of Appeal has advised prosecutors that it would be a
violation of due process to deny those
individuals a probable cause hearing
prior to detaining them pending a
civil trial. This latest judicial decision
has prosecutors statewide scrambling
to comply with this order. Prosecutors must demonstrate to a judge that
those designated a danger to society
should be kept locked up.
Pinellas Public Defender Bob
Dillinger C'lnimed that this was a dramatic victory for those who his office
had sought hearings for and filed an
appeal with the 4th Districi Coun. to
win them. Now prosecutors are working to meet the appeals coun. deadline: five days. The precedent-setting
appeals court order on the Pinches
cases could have statewide ramifications. Dillinger said that cases for the
proseculors may look good on paper
but may 110t appear so strong in an
adversarial hearing where both sides
can call witnesses.
Dillinger believes that not all the
men targeted are prone to re·offend

F.P.L.P. VOLUME 5, ISSUE 6

and they should be freed. He argued
that Florida is the only state with a law
like Jimmy Ryce that didn't call for a
probable cause hearing. Dillinger
blames the Legislature for the immediate problem because they were the
ones who drafted this law.
This is only the beginning of the
problems for the Jimmy Ryce Act. In
late September, Palm Beach County
Judge Virginia Gay Broome upheld the
law as constitutional but noted the facility designed to hold the detainees is
overcrowded and lacking in privacy.
adequate treatment plans and activities.
The first facility was a converted
county jail located next to Martin Correctional Institution in Indiantown,
Florida. The Martin Treatment Center
is home to more than 100 convicted
sex offenders brought there following
the completion of their prison sen·
tences. Instead of being free, these men
now sleep on gray metal bunks and eat
prison food. They remain at the Martin
Center pending civil trials to determine
whether they should be locked up indefinitely for treatment under the new
law.
Defense lawyers allege Ihat the
prison-like conditions add fuel to their
argument that the law, which is not
suppose to be punishment, actually
heaps more punishment on men who
have already served their sentences.
The men are under constant camera
surveillance from a central control
room staffed by Department of Correctiolls' prison guards. Toilet stalls arc in
the open with no doors for privacy. If
the men need medical treatment they
are taken to Martin Correctional Institution for treatment by prison doctors.
The Jimmy Ryce Act is supposed
to be a civil, not criminal, action that
holds the men for treatment, not pun·
ishment. However, defense lawyers say
the current living conditions is not civil
and they want to show that the law is
punitive in order to prove that it is dOllblejeopardy.
Hillsborough Chief Judge F. Dennis Alvarez, who presided over several

Ryce cases in Tampa, said .the Legislature clearly meant for treatment to
occur outside a prison setting. A,h'arez plans to tour the Manin facility to
determine whether it is as restrictive
as a prison or if it is more close to a
hospital setting.
Another significant factor about
the law is that only one-third or the
men committed to the center have
agreed to receive treatmenl. Many of
the men have refused 011 the advice of
their lawyers. who think that participating could be perceived as admit·
ting to being a dangerolls sex offender. More than 20 or thc detainecs
who have declined treatment have
been scnt 10 South Bay Correctional
Facility in Palm Beach County.
While South Bay is privately operated. it is still a prison. So those men
who have completed their prisons
terms are still in prison albeit in a
house of a different name. Assistant
Public Defender ellie King said that
this aClion is potenlially a life sentence for a lot of these men. The bottom line is the Legislature has set up
a system to warehouse people they
don't want on the streets.
Ahhough Ihe Vni/cd States Supreme Court has upheld as constitutional a similar law enacted in Kansas, Public Defender Dillinger beliC\'es that the COlin. opinion left open
the argument about whelher Ihe law
was improperly used as punishmenl,
an argumell( which may take years to
•
resolve.
ISource' 51 I'I'I/?rsbllrg TIrII<'s. 1012.3991_

Page 11

October 1, 1999

SENATOR TON/JENNINGS

P,,,.,d(!lnt

Teresa A. Bums. Chairperson
Florida Prisoners' Legal Aid Organization. Inc.
15232 East Colonial Drive
Orlando. FL 32828
Dear Ms. Burns:
Your recent correspondence outlining your concerns regarding Lhe Florida
Deparcment of Corrections is greally appreciated.
You raise some interesting points in your leller. I have taken the liberty of
sending a copy 10 the Senate Criminal Justice Committee which has oversight
of the reguhl.lion of the Department of Corrections (DOC). As you may be
aware, ule Committee has requested. and will continue to receive, information
from DOC concerning the recent events a Florida State Prison. I have asked
the committee staff to keep your comments in mind as they review this
infonnation.
Again, thank you for taking the time to wrile and share your thoughts. You
and the members of FPLAO are to be commended for your efforts on behalf of
Plorida's prisoners .

•

To i Jennings
rb

1032 Wilfred Drive
Orlando, Fl 32803

F.P.L.P. VOLUME 5, ISSUE 6

Page12

. Erroneous Felony
Reclassification Results
in Illegal Sentences
Pursuant to Florida Rule of
Criminal Procedure 3.800(a},
Lenoris Drumwright, who is currently incarcerated at the Mayo
Correctional Institution, moved the
Circuit Court, in and for Orange
County, Florida, to correct his habitual violent felony offender sentences.
'
In 1993, Drumwright was convicted and sentenced on the following offenses:
I) Aggravated assault with a
fi~earm while wearing a mask (a
third degree felony reclassified to a
second-degree felony based on the
use ofa firearm);
2) Aggravated battery with a
firearm while wearing a 'mask (a
second degree felony reclassified to
a first degree felony based on the
use of a firearm); and,
3) Aggravated assault on 'a law
. enforcement officer with a firearm
while wearing a mask (a seconddegree felony reclassified to a firstdegree felony based on the use of a
firearm).
In his Rule 3.800(a) motion
Drumwright alleged that he was i1~
legally sentenced to concurrent 15year habitual violent felony offender sentences with a minimum
~andatory of 15 ye~rs. Not surprismgly, the Honorable R. James
Stoker, Circuit Court Judge, denied
the motion, which forced Drumwright to take an appeal to obtain
his warranted relief. On appeal, the
Fifth DCA found numerous sente~cing errors committed by the
tnal court. '
First, the DCA found that it

. . . .

E 5, ISSUE 6

was error for the trial court to reclassify the third degree felony of aggravated assault with a firearm while
wearing a mask to a second-degree
felony because "the use of the firearm was an essential element of the
aggravated assault." Thus
"Drumwright's aggravated assaul~
conviction, ,a third degree felony
~ould not incur more than ten year~
Incarceration with a minimum mandatory term of five years as an habitual violent offender."
Next, 'the DCA found that it was
error for the trial court to reclassify
the second-d~gree felony offense of
aggravated battery with a firearm
while wearing a mask to a felony of
the first degree because use of the
firearm was also an essential element
of the aggravated battery. "Th[is] offense should ha.ve been classified as a
s~cond deg~ee felony thereby incurrmg an habItual violent offender sentence of a term of incarceration not
exceeding 30 years with a minimum
mandatory term of 10 years."
Finally, the DCA found that the
trial court also erred when it reclassified the second-degree felony of aggravated assault with a firearm while
wearing a mask to a felony of the
first degree because use of the firearm is also an essential element of
that offense. "Again the imposition of
the IS year minimum mandatory term
exceeded the 10 year maximum."
Because the sentencing errors
were apparent on the face of the record, the DCA remanded for resentencing consistent with its findings.
'
See:
Drumwright v. State, 24 FLW
D21 0 I (Fla. 5th DCA, 9-10-99).

.

Resentencing From
True Split Sentence
Goes Awry!
Michael James Baker was originally sentenced by the Eleventh Judicial Circuit Court, ir. and for Dade
Co~nty, Florida, to a twenty year "true
spht sentence." See Pool'e v. S',,'e, 531
So.2d 161 (Fla.1988). The sentencing
scheme employed in Baker's case consisted of a twenty-year prison term suspended after the completion of ten
years incarceration with the remaining
balance of the sentence to be served on
probation. Baker satisfied the service
of the ten year incarceration portion of
his split sentence and was release to
begin service on the ten year period of
probation. Subsequently, Baker violated the conditions of his probation
and was resentenced to a prison term
that exceeded the remaining balance of
the w.it~held. or suspended portion of
th~ orlgmal true split sentence.
. Pursuant to Rule 3.800(a). Fla.R.
Crlm.P., and under the authority of
Poore, Baker moved the circuit court
to correct his sentence. Baker's motion
was denied and he appealed.
Finding Baker's entitlement to relief apparent on the face of the record
the Third DCA, reversed the circui;
cou~'s or~er ~enyjng the Rule 3.800(a},
motion. Slglllficantly. citing Bryant v.
State, 591 So.2d 1102 (Fla. 5th DCA'
1992); and, Ashe v, State, 548 So.2d
291 (Fla. 4th DCA 1989), the DCA
~ound that? in revoking Baker's probatIon, the clr~uit court illegally imposed
a sentence In excess of the remaining
bala~ce of the withheld or suspended
portion of the original sentence.

Page 13

Although the DCA correctly
found lhal "Baker was entitled to be
sentenced to the balance of the with·
held ponion of the sentence." which
appears to be ten }ears. the DCA
nonetheless fCversed and remanded
"with instructions to resentence Bakcr
to twenty years imprisonment with
credit for time served."
Sec: Baker I'. State. 24 FLW 01691
(Fla. 3d DCA. 7·21·99).
'IComment: Although it 11\11)'
:lppear that Baker pre\'niled, Ill)'
review of other case law decisions
pertaining to this mailer has I.ert me
with a reason:lble doubt. That is, I
have reason to believe that Baker
did not actually get the relief th:lt
he is entitled. ee Cook \'. Stille, 582
So.2d 90$ (Fla. 1st DCA 1991)
(sentence imposed after probation
revocation on originul true fifteen
year split sentence, suspended after
three years incllrcer:ltion, could not
exceed twelve )'ear balt,"ce of with·
held or suspended portion of origin:l! sentence); Solomflll v. Slate, 698
5•. 2d 909 (Fla. 2d DCA 1997)
(ulJon revocation of probation from
original ten )'ear tme split sentence
wilh fi\'e of the len years SIlSpended, maximum senlence th:lt
court could impose upon revocation
\\as five )'curs); Chapmall I'. 51011:,
538 50.2d 965 (Fl•. 4th DCA 1989)
(" upon II violation of the probation
imposed in a 'true' split sentence,
the length of sentence ma)' 1101 exceed the length of the term of the
sllspended period, the limits of
which were established in the initial
sentence."); Towuer 1'. SUI/e, 594
50.2d 351 (Fla. 5th DCA 1992) ("Ihl
aving received a true split sentence,
Ihe maximum sentence a\'ailable
upon \'iolalion of probation was the
balance of the prohlltiolHlry pc~
riod.").
In Poore ". 5wte, the Florid:l
Supreme Court staled "if III true
sillit sentence I is used I1S the origi~
nal sentence, the selltencing judge
in no instance may order new in-

F.P.L.P. VOLUME 5, ISSUE 6

carcerntion that exceeds the remaining balance of the withheld or
suspended portion of the origirml
sentence." 531 So.2d 161, at 160$
(Flu.1988) (emphasis added).
Lonnie Poore was originally
sentenced to four~and~Olle-haJr
years incarceration. However, the
sentencing court ordered Poore to
spend two-and-one-half)'ears inC.:J.r~
cera led with the remainder of the
sentence sllspended. Poore was to
be on probation during the two
)'ear suspended portion of the sentence. When Poore's probation was
re\'oked, utilizing the sentencing
guidelines, the trial court resen~
tellced him to four-and~one-half
yellrs incnrceration wilh credit for
timc sen'ed. On appeal to the Fifth
DCA, the DCA held that Poore
could only be incarcerated for the
remainder of the original split sentence, which 'las two years. The
Florida Supreme CO!Jrt granted re\'iew because of expressed :lIId direel connicts between the district
courls of appeal. On review, noting
that Poore was originally
"sentenced to a true split senlence
tot:lling four-and-one-half
yellrs, with two ye:lrs of the total
senlenee suspended," 531 50.2d, at
165, the Floridll Supreme Court
agreed with the DCA's determination that Poore's four-alld~one~half
yenr VOP sentence had to be vacated. The supreme COUl'l held Ihal,
"(ulpon remand, the trial court
sh:lIl not be permitted 10 order
IPoore's} incarCeT:llion for any period exceeding either the guidelines
recommendation or the remllinder
of the original splil sentence, whiche\'er is less." !fl. (emphnsis added).
Another case supporting Illy posilion that Baker did not get all the
relief he is entitled is Ashe v. SUlle,
548 50.2d 291 (FlA. 4th DCA 1989),
which is :1c(uall)' cited by the DCA
in its decision entered in Baker's
case. Christopher Ashe was originally sentenced to a term of six

years with four years to be served
in prison and the remnining two
yea~ on probation. After Ashe vio~
lated his p...obation, the DCA found
that "the trial cou ...t erred in sentencing him' 10 a prison sentence
greater than Ihe suspended portion
of his original split sentence, that is,
greater thnn hvo years." Id., at 292
(emphasis added).
In my opinion, Ihe other case
cited by the Bilker Court, Bryalll.,.
Slale, 591 So.2d 1102 (Fla. Sth DCA
1992), should nOI have e\'en been
cited. Unlike Baker, Robert Bf)'ant's enti ...e sentence was sus·
pended. Sec SlfIle 1'. Powell, 703
50.2d 444 (Fla.1997) (trial courl
rna)' impose true splil sentence in
which entire period of incarcern~
lion is suspent)ed); see also,
Sconiers v. 51f1te, 651 So.2d 758
(Flu. 1st DCA 1995) (sentence im~
posed upon revocation could not
exceed initial ten year sentence, all
of which was suspended).
My frustration wilh the B"ker
case came from the DCA's instruction for tbe sentencing cou ...1 to impose a sentence of hventy years
with credit for time sen'ed. (n Illy
opinion, this conflicts with, among
other things, the mandate entered
in Poore. I firmly believe Baker
should not be sentenced 10 a prison
term Ihat exceeds the ten-yeilr remaining balance that WIIS inititllly
withheld or suspended. Additionally, on the maximum ten yea ...
VOP sentence thllt could be imposed, I believe thut Baker should
be awarded c...edit for all time
served and unforfeited gain time
earned from the inca ...cerntion po...•
tion of is original split sentence.
This, in my opinion, would be COIlsistent with the spirit of the sen~
tencing guidelines.
Unfo...tunatel)·, there is a case
thai really muddies my opinion:
Frazier v. Stale, 559 So.2d 1121
(Fla.1990). In 1980, ,Johnnie Fmzier
was originally sentenced to ten

Page 14

years in prison, to be suspended after the completion of the first five
ye:lrs incarceration wilh the five}'ear balance to be served on probntion. Frazier was later convicted of
DUI mnnsl:lughter, which was committed on November 6, 1986. PurSUllnt to a guidelines runge of seventeen to twenty-ovo }'ears' incarcenuion, Frazier was sentenced on
the DUI manslaughter offense to
the statutory' maximum of fifteen
years in prison. The trial court also
revoked the fi"e year probationary
period in Frazier's 1980 ten yenr
true split sentence and imposed a
new ten year prison lerm with :111
award for the full five yellrs as
credit for time sen'ed. The problem
is, the Florida Supreme Court
found' thnt U(hlis resentencing on
the 1980 conviction (was) consistent
with Poore because Ihe court did
not 'order new incarceration that
exceeded the remaining bl1lancc of
the withheld or suspended porlion
of the originlll sentence." Id.• at
1122; quoti"I: Poore.
Through cxtensive rcsearch, I
have found that Baker is just one of
man}' whom Florid:. courts have
allowed to be sentenced to prison
terms exceeding the suspended portion of a true split sentence. For example, Herman Hobbs was origi1Il11l}' sentenced to concurrent
twenty and fifteen year prison
terms, suspended after the completion of five years incarcer:lIion. After Hobbs violated his probation,
rather than sentencing him to concurrent fifteen and ten year terms
with credit for time served, the trial
court resentenced him to concurrent twenl)' and fifteen ye:lr prison
terms with credit for tillle served.
On llppeal. the Second DCA, citillg
Frazier, held that "Itlhis is the
proper method to impose the re·
mainder of the true split sentence,
so long as the defendant recei\'es
credit for his prior time in prison."
Hobbs v. State, 702 So.2d 560 (Fla.
2d DCA 1997).

F.P.L.P. VOLUME 5,ISSUE 6

Finally, Henry F. Johnson was
sentenced on December 12, 1988, to
six concurrent six-year prison
terms, suspended after scrvice of
threc years incarceration. However,
rather than placing .JohnSOIl on probation for the remaining thrce
yean, the trial court illegally placed
him on communit)' conlrol for one
year, followed by a five year period
of probation. After Johnson violated
his probation, the trial court im·
posed six concurrent si:t:-year prison
terms. The court awarded 350 du)'s
tlS jail credit, hut no credit fOI' the
time Johnson prc,'iously spent in
prison. The Second DCA found lh:lt
the maximum prison term that
could be imposed upon Johnson's
revocation of probation was Ihe
three years initiall}' suspended. In·
tercslingly, natwithslanding the fact
that Frazier's offenscs were committed in 1980 and 1986, Ihe DCA
noted:
For ca.fes prior to tlte effective
date of section 948.06(6), Floridtl
Statlltes (/989), tltere appear to be
two correct metltoll\' of imposi"G the
remt,;nillg sentence after a vio/atioll
of probatiotl Otl It Irlle split selltellce.
First the remllillilll: sentellce clm he
imposed witlt II{) credit for time previow;/y sen'ed. imlicllting tltat tlte selltellce is tlte remai"der of II true split
selltellCI!. See OIllI!IIS v. State, 557
So.2t1199 (Fla. 2d DCA 1990). IlItlte

altertwtb'e, lite emire sentellce clm
be imposed willt filII credit [or Ihe
lellgth of the illitial sell/ence. Fmzier
v. S1tIte, 559 SO.2t1 II 21 (Fla.), cerro
deified, 498 U.S. 834, I II S.C!. 101,
1/2 L.EtI.2fl73 (/990).
Jo/tII!W" 1'. State. 641 So.2d 970,
aI971-72 n.2 (Fin. 2d oCr\ 199",).
Over the I:lst several yenrs. I
hnve seen numerous prisoners convince the circuit courts thnt nn~'
sentence thai exceeds the remaining
balance of the suspended portion of
what was initially a true split sen·
tence is iIIeglil. III each of those instllJlCeS, the circuit COIII·tS :llso
awarded credit for lime served :md
unforfeiled gain time pursuant to
the decision entered in Sit/Ie v.
Greet/, 547 So.2d 925 (Fla.1989). I
believe lhe majority, if not all, of
lhosc successes callie from 1I0t only
arguing what Ihe Supreme Court
snid in Poorc, but .'1150 what the Supreme Court did (it agreed with the
DCA that Poore could not be selltenced to a term exceeding the two
years initinlJ)' suspended).
Iti·
IIHllely. for ench of the prisoners
who rellllv prevailed, I believe that
eITective writing contributed hea'·
i1y toward their succcss.-bmj

Criminal Defense Center
908 Thomas\ iIIe Road
T:allahasst'e:. Florid:a 32303

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Page 15

TRIAL COURT MUST
PROVIDE A LITIGANT
NOTICE AND A REASONABLE OPPORTUNITY TO
RESPOND BEFORE
PROHIBITING FURTHER
PRO SE AITACKS

pretation of 28 U.S,C. section 1915
(g), which provides that a prisoner
who has had three or more previous
lawsuits dismissed as frivolous, malicious or for failure to state a claim
upon which relief may be granted. In
order to proceed with a new action in
fonna pauperis the litigam must allege that he/she is in imminent danThe Florida Supreme Court on ger of serious physical danger.
certified conniet review has held that
Florida prisoner Daniel Medberry
court's must first provide a pro se filed a 42 U.S.C. section 1983 civil
liligant notice and reasonable oppor· rights action claiming that when he
[unity 10 respond before prohibiling arrived at Everglades Correctional
further pro se attacks on his or her Institution in 1996, he informed
sentence as a sanction for prior re· prison officials that because of his
pealed ond frivolous motions.
sexual battery offense he was in fear
The Court recognized the impor- for his safety should he be placed in
tant constitutional right of access to open population. Prison officials ig~
the court but detennincd that a bal· nored his plea and placed Medherry
ance was needed to curb the abuse of in open population. Medberry
a select few. The Court achieved claimed in his petition that his fear
what it delennined 10 be the best bal· became reality and that he was both
anee by directing the lower courts to verbally and physically assaulted by
firsl provide litigants nOlice and an other prisoners. Medberry infonned
opportunity to respond through the prison officials of the assaults one of
issuance of an order 10 show cause. which included a "blade". Medberry
The Court staled Ihal Ihis method was placed in administrative confinewould generate a more complete re- ment. Medberry exhausted available
cord for appellate courts'. If the liti- administrative remedies prior to filgant is denied further pro se access to ing his 1983 suit in federal court althe courts, the appellate courts will leging an 8th amendment violation
have an enhanced ability 10 determine for the prison officials deliberate inwhether the denial of access is an ap- difference to his safety.
propriate sanction under the circumMedberry filed to proceed in
stances, In reaching this opinion the forma pauperis, which the district
Supreme Court approved Spencer \'. court denied because Medberry had
State, 717 So.2d 9S (Fla, Ist DCA three previous suits dismissed as
1998); and disapproved Huffman \I frivolous or malicious and because he
SIO/e, 693 So.2d 570 (Fla.2d DCA failed to allege that he was in immi1996). State \t, Spencer, 24 Fla, L. nent danger of serious physical inWeekly (S)433 (Fla, S.Ct. September jury.
23, 1999).
Medberry appealed to the 11th
Circuit and raised two issues: (I)
ELEVENTH CIRCUIT
whether the "three strikes" in forma
NARROWLY DEFINES
pauperis provision of 28 U.S.C. sec·
IMMINENT DANGER OF
tion 1915 (g) violates ex post facto
SERIOUS PHYSICAL I JURY prohibitions; and (2) what showing
must be made to allow a prisoner
PROVISION OF PLRA
with three strikes to proceed in forma
On an issue of first impression, the pauperis because he is in imminent
11th Circuit Court of Appeals has danger of serious physical injury - a
adopted the strictest possible inter- question of first impression for {he

F.P.L.P. VOLUME 5, ISSUE 6

II th Circuit Court of Appeals.
On the first issue, the Court rejected Medbcrry's ex post facto argu·
ment. The Court noted that it had previously addressed this issue and thai
the language of 28 U.S.C. section
1915 (g) makes it clear that the three
strikes rule applies to claims dismissed prior 10 (hat section being
adopted as part of the Prison Litiga·
tion Reform Act (PLRA) of 1996.
On the second issue, the Court rejected Medberry's claim that be is in
imminent danger of serious physical
injury because he is not presently in
open population where he claimed
the threat existed at the time he filed
the complaint. The Court sided with
two other circuits on this issue which
had held that Ihe "imminent danger"
must exist at the time the suit is filed
or the application is made to proceed
in fonna pauperis in the case.
The Court also noted that Medberry could not amend his complaint
to correct the "imminent danger" deficiency as he has since been tmns·
ferred from Everglades C.I. Based on
these facts the 11th Circuit Court AFFIRMED the district court's denial of
Medberry's in forma pauperis
(indigency) status pursuant 10 28 U.S.

C.1915(g).
See: Medherry v. BUller, et nl .•
F_Jd-> 12 Fla.L. Weekly Federal

(C)1226 (11th Cir.8/23/99).
FOURTH DCA HOLDS THAT
SECTION 947.1745 FLA.STAT.
IS CONSTITUTIONAL BUT
POSES A QUESTION OF
WHE IS A JUDGE A
JUDGE?
Prisoner Jerry Gaines petitioned the Fourth District Court of
Appeal for a writ of certiorari seeking
review of the trial court's order dismissing his petition for writ of mandamus.
Gaines filed a petition for writ
(COf1flnutd 0f1 pogt

2n)

Page 16

Dcar Edllor.
'Ille prison system in Florida is at the leaSI corrupt and a money laundering opcration. The focus by the big Iligs oflhe D.O.C. is so much on
"process"' lhlllihey disregard Ihe ··outcomc". Whm is lhe oUlcomc you ask? Well. 10 subjecl inmates 10 scvcre punishment. bad e,(lll1lples, un,
reachable lalls. and conslan, bribery. exlortion and even sla\'er)·... Theil the oulcome is Ihat Ihe "SYSTE:-'oj" is churning out monslers bacl mlo
soclel~ Ibesc people don', elcn knoll h011 10 ~pell rehabilitation. let alonc being Ihal And Ihen as the cahin n.'aclion proceeds. thesc hmefilled rebellious IX'Ople lentlhcir frustration on non·aulhoritatilc people; the Ilorkcrs and builders of SOCiClY. So that means more \ ictims of
crime. innocenl people hun. some killed. and Ihese snme people end up back insidc the "SYSTEt-,,!·. And nlong Ihe I\'a),lhc~ hale influenced
othcrs Such as their suns. daughters or jusl neighburhood kids II'hu look up 10 them.
So no\\'. 1\ hat docs lhe polilici:lns do II hen sociely cries OUI about crime? They give lhem a big la.~ bill and build more prisons. It's bc)ond
me or an) nonnllilhinking.. cllring human heing lh:llihe nnS\lers to crimc is to create sliffer sentences nnd build morc prisons: all this do<:s is
males the mass ofpeopk pa) more ta:\es.. and gi\cs other potential crime offenders more opportuniw:s 10 step up and take o\er II here Ihc ones
Ilho :m: lod.ed up len on'
Siudy shulls el'idence lhat;1 higher inellrcer<lliun rale ereales 1L slend) crime rate. II isn'l higher. ur lOller. According to NCPA Po1ic~ report
No 1/9. Sept. 1998". Ime enough. crime rale is on the decline. Whtltthe)' fllillO (ell )OU is lhat Florida and California accounl for one in four
mrnalcs in the Ilhole counl!') And each state spcnds billions of dollars to contend Ililh lhis each year Is this the ansllcr? Yeah righl l Take the
rnone~ OUI of the criminal's hands and place ~our mom:) in the hands oflhe polilicians. and big Iligs Ilho run the shOll!
I challenge ~ou people to male dem:lOds to ~ollr polilicians. lfth\.') \13nl ~our \Ole.lhen gl:l some solulions. Instead of building Ihese massile
nHtlle)-uperating IlarehOllses. \Ie eull prisons und instilutions, m~ke Ihem olerhuullhe criminal juslice syslem. The legal proc\."Ss is in Icrrible
shnpe and needs :111 nell syslems 10 bring fresh idculs and Solulions aboard.
Focus more on hl\1 and nOl procedure or COSIS. Inslead of sa)'ing "Whm kind of hl\ls can lIe create 10 gain relribution and ones to hun himl
her. LeIS male a more rcslOratil e process of lall. Where the I ictim and the ollender can gain in a bad situation. We need educati(Jt\ emphasis.
110\1 can a smart l\elL \."ducaled person full pr\.') 10 crime whcn ahem:ni\es arc there to preH:nt that? The Ill\\ lIe Ihe under since Ihe 1701J"s.
brnught o\er here by people Ihlll eamc olcr frum England and therc·abouts. hns 10 be changed and modified in ordcr for a more grounded.
"l'iclim-oITender" type of operative. Untillhis happens. the prison expansion will rench lhe highest highs, and our income will rcnch Ihc 100Iest
1001s. and the big-wigs will gel morc and mOl\: corrupl and Ihe institutions will gct richer. Lea\'ing c\'cry one from I'ictim 10 offcnder 10 the hard
Ilorlers of our socicl~ Ilith a had f~"eling lind no I\here 10 tum. Wh)' are nOI the lawyers nod/or Inll professionals. judges. legislature. ctc..
chllmpioning Ihcsc 1l11\led lalls. )OU asl? I asl ~ou. hale ~ou eler seen a I2Qilllaw\er. or poor judge or pOor senator, etc... " j think you lnoll
Ilh~ nOlI
I challenge each and C\'ery one who rends lhis to spread the \\ord. and leI'S instililhoughis 10 olhers to seck a resloflllil'ejuslice syslem and 10
do away \\ith Ihe nOlI money-mongling-relribuli\'e lalls.
And I encourage all of you 10 loice this to Ihe ones II hom you l'Ole for. After alt. II hy would you vOle inlO office 1I person Ilho will not walll
10 belh:r our laws and help light crime II more ProdUCli\e lind fl."Slomli\e way? You have to get in\olled and make )our IIOrd count The prison
s~stem is io stalC ofehllos and needs help_ Iflle don'l Ilant 10 create monsters. tum lhem loose to our societies. and want a beller moreeduca·
tionaltype of system. to cnnble lhose b..:ing released 10 lit baek inlo our communilies and be an asS..:l and not a detriment. Then I\C all beller
Ilale up and slarl voicing your upinions IU the Bigwigs before il is too laIc!
lbank-~ ou lor prinling this artic1cl DN.lSI'
Dear FPLP. GI'I.'\.'llng:>. 1do hope Ihis letter lind~ ~ou in Ihe best ofheililh. nOlI lirst and foremost I must exprcss 10 ~ou hO\l IlonderfulI lhml
your publication is.
I ~rlI presenlly incarceraled iri Ihe Fluridn prison syslem. and a fricnd lei me read n few of his FI'I.P·s. lul)'/Augusl"99" issue. regarding
Tercsa Burns article and 1 muSI sa) rou did:l \Ionderfuljob. Wc are nOlI cntering lhe 21st cenlur)' and I lim grmcfullhlll FPI.P and Ihe stllffarc
slanding in lhe gap. I for one do not hilI c an~ outside help. I hal'e been \lanting 10 subscribe 10 FPI.P for )cats I now linally ha\'e the funds 10
subscribe I dun't hlllc much bUI mornl support so thanks for standing strong so in closing thank rou in adl'anee for all you are doing keep up
lhc struggle Al Bel
Dear FI'U'.
I Ilritc 10 oITer my highl:sl praise for ~our publiclltion. Yours is hands down lhc Iinest sllLte prison publicmion I hale eler seen. I mail my
eupy each monlh to prison aelilists in othl:r states or 10 the fell other l1edgling rag-tag nellslcners Ilith a nOle to the effect: "check oUlthis
FI'LP and sec Ilhal is possible. lbL'y'rc doing Ihis in Fl. Why not in )our Slate? You can do it-iflhese people cun, then )"ou can. 100.I honestly wish there was an '"FPll''' in all 50 stllles. By Ihe I\'n) y'nl1 keep gelling better too. Keep up Ihe - work! In the Slrugglc. Dan
Pens. News Edilor.l'LN

Dear Fricnds, lust a nOle to give you an updale on E\crgludcs CI in Miami. I don't knOll II h:ll ~ou knOll aboul Eel and Ilhllt you don't knOll.
so in thaI light I will jusllouch on thc important issues \\hich seem 10 things addressed in my FPI.P ncws paper. First in response to lhe
new visiting law, lhere is no whcre for our families 10 gel away from foul wcnlher out front on visiling days here. Nothing fer the children and we cnt out of lhe vending mnchines herc. The canteen which is in lhe VP is for lhe slaff only. Also, we arc paying /lib.lcr prices
/A1I/~/urs "alO"td Ctlnnot

Ix prlnttd /weollSi.' ofspoIX rumC:IIO/lS UflSlg,"d Itlt~rs ",II '101 II;,> prlnt~d Or Itl/US Ihol obl'/ousfytl" not tnurllkdfor

ublle:tlllQn Pltau ",dlrot..

In

your f~lIers If 'Ou do nof ".ant 1/ rmted. Qlhtn.·,u FPLP "un"ts I~" ht to rlnl oil kllers rer~/I"f!dand fO edlt Itflers or

F.P.L.P. VOLUME 5, ISSUE 6

Page 17

in our Cllll1een on the compound then the staff pay in theirs, Example, energizer batteries AA, advenised out in the VP for staff 50 cents
a piece, we pay 94 cents II piece for ours. Same vendor, same battery! We are only allowed to get visits here every other week, 2 times a
month and month's with a fifth weekend, menn no visit's. We have to alternate holidays, example· last year A-L gets Christmas visits
lind M-Z do not! So the special visiting days lire granted IIccording to whose leiter it falls on. They claim this is due to space yet there
arc now) full dorms closed down here out of8, for CM and confinement They could tun the visits considering max capacily for the vr
llnd then allow pcople in as people leave once the max capacity is reached but the)' won 'I, Grievances arc systematically denied or go
unans\~ered here. Then ifyoll take lhe nexI step which )"ou Clm ifstaffdoesn'C answer, yOIl get a DR for lying to staff and lhey will say
),ou never filed an informal and lhllt }Iou arc lying and trying 10 abuse the grievance procedurc. A bcller system is needed for filing, logging in informal grievances. As it is, Ihey do nOllog in informal grievances and the chances of your grievance never coming back arc
greal, cspeciall) if )·ou hll\e a" real issue",
Well,that's il for no\\. Thank you so much for all )'OU do and I surely appredllte all )'ou have done in helping with the new visiting
la\\ I'\C been ill for 19 )tlIrs and its only lhrough visits thai I still have strong family ties. I write, call etc.. but the contactlhat comes
from a visits arc a part of some ofm) most meaningful memories that arc alii have to sustain me from day to day as I slowly have lost
so many family mem~rs throughout the ycars duc to dcath. Its just my Dad and me now, but God bless him he still comes every other
\\ed. and J am just as much suppon for him, as he is for me. WN ECI
Dear FPLP, I'm currentl)' fighting my Ct-.I placement. Although the rules are e1eat, I'm getting next to no relief. I was put on CM) al
Mayo CIon )-20-98. In May '98', I received 2 DR's, I saw lhe Board in Sept. '98", and was put ofT until MIlICh '99'. In Dec. '98', I
was wrinen II lhird DR for having 5 stamps in my pocket while on "runaround" stalUS. When I saw the Board again in l\'larch '99'. it
WIlS delemlinecllhlll lowed 65 days of DC time (plus, they could tack 0/1 30 more dllyS 10 make me complete 13 "full" months on CM
stalus), and lhat I would be continued on eM 3 until June '99', Two weeks aftcr that hearing, I was lransferred to Okeechobee lind my
CM) placement was follo\\cd. BUl, in ~lay'99' ,I was ine:<plicnbly taken in fronl of the Board here at Okeechobee and upgraded to CM

2.
Chapter ))·38.006(7) specifically states thaI an institution recei\iing a CM inmate can review th.:!t inmlltes CM placement but 9!!:
!!Q! -upgrade" him "until continuing ~ha\'ior dictales an increase in the level ofCM," This connotes that Ill)' level ofCM should have
been determined solely on my behavior !!!kr I was transferred, Okeecho~e's administralion argues that my "serious disciplinary histOf)" "''as grounds to upgrnde me. The E!!!!£ disciplinal)' histof)' that was in evidence for the Board at ~Iayo CI to consider in March'99'
just prior to the transfer. What changed, other than Ute institution? I ha\e had no DR's at Okeechobee. and all my monthly evaluations
hn\'e been "abo"e satiSfactory", 5, \\ here is the" continued behllvior" p.1ttem required by the rules to justify this upgrade?
~line is just one example of\\idespread disregan:l for rules when it comes to placing or keeping inmates in CM I'm fighling this
placement tooth and nail, I encouragc e\el)'one to document cve/) legitimate \\Tong incurred them on C~'l. Uniled we stand Divided
\Ie fall (and fllil).1\ITOCI
Dear Friends, YOur legal infomllltion is the life blood to thc judicial s)"slem. Our access to Ihe couns through lhe law libraries arc a big
joke. The onl)' lhing is, we're nOllaughing. Keep up the good work. Those of us on CM 2 rcally appreciatc your hard work. The stnfflll
FPLP arc in our thoughls and prayers.
RTBCI
Dear FPLP, I'm on CM at Washington CI and it is pure hell. We are treated very badly in every aspect. Every time we leave our cells
for rec~:ltion, showers, anything, Ihe)" lear our room apart 1\ledical is almost non-existent, We never sec a doctor. I cut myself and
nC\er C\en sa\\ all)' kind ofdoctor period. We really need help here. This is an 50S to anyone Ihat can give assistance. There are people
here \\ho have ~en on Ct-.I I for 2-) years without DR's They juslify it by so called "wrile ups" on a contact card. The captains
threaten to gas people al e\ef)' lum. This place is tonure. The) put me on C1\1 I for n urine lest and said because I "''as on C\I ~fore ilS
okay. On canlttn \Ie can'l order a comb or Q·tips. From stan to finish this place is a \\aste camp. 1I's hard to even care here because
lhey subjecl you 10 so much persecution, This has to stop. Thcsc officers arc crazy and really believe that lheir job is to punish us. We
need help Bad!! AF wei
Dear Friends: Ilmve told people and I will continue 10 say it, "If a pCrsOIl does not have a lovcd one, family mcmbcr or fricnd in
lhc prison system, THEY HA VE ABSOLUTELY NO IDEA-NONE AT ALL. Thcy arc truly 'clueless'. Your publication
helps to open our eyes. "Thank you" is nOI enough. AP

F.P.L.P. VOLUME 5, ISSUE 6

Page 18

~POST CONVICTION ATTORNEYS~
J ~OREN
I
I
D. RHOTON

,

M1CRAEL V. GIORDANO

Attorney At Law

Attorney At Law

(813) 226-3138

(813) 695-2612

_(813) 228-0070
•

•

APPEALS
(;) STATE POST
CONVICTION
(f)
SENTENCE
CORRECTIONS
$
FEDERAL
PETITIONS FOR
WRIT OF
HABEAS CORPUS
(~ NEW TRIALS
$

•

I

412 East Madison Street
Suite 1111
Tampa Florida 33602
(813) 228-0070
(813) 221-2182 fax

he biring of II lawyer is aD important decision Ihne should not be bu.'Ced soleI)' on IIdvcrtisemenls.
Before ),ou decide, ask us 10 send you free written in(ormnlion about our qUlIlificatiODS.

F.P.L.P. VOLUME 5, ISSUE 6

Page 19

F_

PNon
LBlt

StfJSCRJITfJON FORJI

X

P.O. 801 66G-387
ChWuata. FL 32766

H so. please COOIplclC lhe below infonnitOJ and send i1 to fPLP 10

Perspeetives

lhal !he mlilinillist can be updated and 10 you doo't miu III iasue.

om A'IliDiR·....'1:

P1eue check type subscripl:ial. desired:

N~,

0 0 0
lnsti:u.timI8U1~
ReoC'lial
S30IJr
(OJeck Type)

lndiviWaJ
$12/yr
N~,

b,,,

..

-.
C;,y

s""

Zip

DC'

.0><"
"""

City

SIBte

Zip

(Plew Prinr Clearly)
Unused U.S. postale atamps are accq:J(cd for 5ubscripioru in the amount
indicated. Mate check! or mcney o:ders payable to Florida Prison Leul
Ptl'$pectivea. Pub\iVJ.ed hi·monthly.
.\;O\ 99

of mandamus against the Florida Parole Commission concerning his eligibility for parole release. Gaines was
sentenced in 1977 to life in prison. Under the statutory parole system in cffect
at the lime of sentencing a trial judge
could rClain jurisdiction over a defendant so lhal the judge's approval in
connection with the parole commis-

sion's approval was necessary for the
prisoner's release. Cf. 947.16 (3), Fla.
SI31.(Supp.1978). It is significant to
note that Gaines' judge did not rctain
jurisdiction ovcr him.
Aftcr many years in prison,
Gaincs bccamc cligible for parolc consideration. Several presumptive parole
releasc dates (PPRD) were set for
Gaines. The Parole Commission set a
presumptive parole date of September

7,1992.
On October 1. 1986. the Florida
Legislature amended section 947.1745
(4), Fla. Stat., to require the Commis·
sion to notify and seek comments from
thc sentencing court when an inmate
was within 90 days of his or her effective parole release date (EPRD) interview. The statute was further amended
and codified as section 947.1745(6).
An added caveat required notice to the
chief judge in the evcnt the sentencing
judge was no longer serving. The chief
judge was then permitted to designate

,

F.P.L.P. VOLUME 5, ISSUE 6

Daled:,·,==",;;;-;,"n-=
Mail To: FPLP, P.O. &1 660-387, ChuluOIa, FL 32766

any circuit judge within the circuit
to act in the place of the sentencing
judge.
Pursuant to the 1986 statutc,
the Commission notified Chief
Judge Leonard Ri"kind of Gaines'
parole release because the sentcnc·
ingjudge had retired in 1991. Chief
Judge Rivkind obviously designated
himself to act in thc place of
Gaines' sentencing judge and objected to the release. Based on the
comments of the judge. the Commission extended Gaines' PPRD to
September 7.1997.
On May 12, 1997.' Judge
Alex: Ferrer was designated to act ill
place of Gaines' sentencing judge
and he too objected to Gaines' release. Based on Judge Ferrer's objection, the Commission extended
Gaines' PPRD to September 2002.
Gaines sought and was denied administrative review ofthc Commission's decision.
In July 1998, Gaines filed a
pctition for \Hit of mandamus alleging that section 947.1745 was unconstitutionally applied to him. His
argument \\as predicated on an ex:
post facto application. He also argued that the Commission failed to
comply with the statute bccause his
sentencing judge. Judge Morpho-

nios. still serves as a judge. Gaines
contcnded that the Commission
should have solicited comments from
his sentencing judge. Ironically.
Gaines' daughter contacted Judge
Morphonios about the prospective parolc and Judge Morphonios responded
by stating "it is my position to remain
silent on this issue.. ,'. The trial coun
dismissed the petition without obtaining a response from the Commission.
Citing a rim Districl Coun case.
Gallis \I. Florida I>arole Commission.
535 So.2d 640 (Fla. 1st DCA 1988).
lhe trilll COllrt determined that the Sliltute did 110t constillltc all ex: post facto
law. The order funhcr noted Ihm
Judgc Morphonios was retired and
that the Commission actcd ill lIccor·
dance with the statute by sending notice to the chiefjudge.
Gaines sought certiorari revic\\
in the Fourth District Court of Appeal. The Fourth Districl Court rca·

Joseph R. Truitt
Paralegal Services
P. O. Box 834
Stuart, FL 34995
(561) 219-7367
Specializing in Post
Conviction Assistance
Page 20

soned that although 947.1745 are penal
in nature and that it was applied retroactive\y to Gaines it did not disadvantage Gaines. The Court reasoned that
although the sentencing judge or a designated substitute judge can negatively
influence Gaines' chance for parole,
the Commission retains the ultimate
discretion 10 grant parole despite a
judge's objection. The Court found the
statute to be procedural instead of punitive. Thus, the ex post facto claim
failed.
The Court did find some merit to
Gaines' contention that his sentencing
judge continues to "serve" as a judge,
despite her official retirement. The
Court noted that several recenl cases
show that Judge Morphonios is actively serving as a judge. The Coun
stated that if the sentencing judge is
still available for comment because she
is still "serving", albeit as a senior
judge, then it is appropriate to obtain
her input, as opposed to that of a judge
who did not participate in the original
case.
While the Court did not decide
whether Judge Morphonios was
"serving" or not, the Court did quash
the order dismissing the complaint and
remanded for the trial coun to issue an
order requiring the Commission to respond to the petition on the claim that
it failed to secure comment from the
sentencing judge. Gaines v. Florida
Parole Commission, 24 Fla. L. Weekly
(D) 2210 (Fla.4lh DCA September 22,
1999).
(Comment: It is axiomatic that retired judges often go in and out of
retirement as needed by either the
circuit they operate from or the district One day a judge may be retired,
one day he may not. There does not
appear to be a semi-retired status as
compared to a actual retired slat us.
To eliminate Ihis type of scenario
from occurring again perhaps more
Ihought should be given to the term
relired and il5 meaning with respect
to the above statute. It is disadvantageous for a prisoner to place his fate

F.P.L.P. VOLUME 5, ISSUE 6

into the hands of a judge who has
no knowledge of the original case.
The su~slitute judge will not be
able to recall the facts of the ease.
Those facts mAy have left some
doubt as to the defendant's guilt
which could be n factor in considering parole.-ohl
RULE 1.070(j), F.R.CIV.P.,
DOES NOT APPLY TO
PETITIONS FILED
PURSUANT TO RULE 9.100
(c)(4), F.R. APP.P.

Prisoner James Frnnkenberry
filed a Petition for Writ of Mandamus pursuant to Rule 9.100(cX4),
F.R.App.P., in the 17th Jud. Circuit
Court challenging a DOC disciplinary proceeding. The circuit coun
sent a notice to someone other than
Frankenberry, but intended for
Frankenberry, instrucling the filing
of a statement of good cause" why a
copy of the petition had not bee!)
served on the respondent. Since
Frankenberry never received the
notice he did not respond 10 il. After 120 days had expired the circuit
coun dismissed the action pursuant
to a rule governing the service of
initial pleadings in regular civil aclions, i.e. 1.070m, F.R.Civ.P.
Frankenberry appealed and the
appeal court found that he "was de·
prived of his due process rights 10
notice and opportunity to be heard
prior to dismissal of his petition be·
cause the circuit coun mailed the
notice to the wrong person."
Additionally, the appeal coun
clarified that the 120·day service
requirement of Rule 1.0700) does
not apply to mandamus petitions
filed pursuant to 9. I OO(c)(4).
The appeal coun QUASHED
the circuit court's dismissal and returned the case to the lower court
for further proceedings. See:
Frat/kenberry \I. Moore, _So.2d
_ 24 FLIV 01970 (Fla. 4th DCA
8125199).

(Comment: Normally, pro se prisoner pelitioners do not serve the
respondent with 3 copy of the petition. Usually. once the perifion is
filed with the court the court will
review the petition and if it stales
n prima facie case (cause of action
on its face), then the court will
issue a show cause order that eiIher incorporates the faclS slated
in Ihe petition or accompanies a
copy of the petition directed to
the respondent. The court usually
serves the respondent with a copy
of the petition with the show
cause order, not the petitioner. A
court may direct a petitioner to
serve a copy of the petition on the
respondent, but only after a show
cause order has been issued. For
further understanding of Ibis
subject, see: PIa. Jur. 2d, Mandamus, sections 162-17I-sj)
FIRST DCA REVISES
OPINION REMOVING
RECOGNITION OF "MAIU
FILED WITH AGENCY
CLERK'" PROVISION OF
RULE 33-29.009(8)(a), F.A.C.

In the last issue of FPLP, in the
Notable Cases section, the case of
Ortiz v. JHoore, 24 FLW 01497
(Fla. 1st DCA 6/22199), was noted.
The DCA has now revised lhal
opinion following a morion for rehearing/clarification filed by the
FDOC, to completely remove the
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Page 21

•

recognition of Rule )3-29.009 (8) (a)
which provides that responses to grievances or administrative appeals to the
DOC centrol ortice arc "deemed filed
with the agency clerk" as reflected by a
stamp on the grievance stating
"mailed/filed with agency clerk" along
with the date.
This revised opinion completely
eviscerates the first decision and Icaves
the DOC with wide latitude to argue
"when" a final response has actually
been given to a grievance for purposes
of computing when the time began to
run to file judicial challenges to denials
of administrative grievances or appeals.
That dale is 1110st crucial when challenging denial of disciplinary appeals
whcre judicial remcdics must be
sought within 30 days of the response
denying the administrativc appeal, per
9. I 00(c)(4), F.R.App.P.
See revised opinion: Orri= II. IHoore,
24 Fla. L. Weekly (D) 1997 (Fla.!st

DCA 8/25/99).
DENIAL OF ADMINISTRATIVE GRIEVANCES NOT APPEALABLE DIRECTLY TO
THE DCA
Prisoner Anthony Whitehurst filed
an appeal directly to the DCA following the denial of an administrative
grievance by DOC officials.
The DCA noled thnt Whitchurst
has done this before and that dcnial of
prisoncr administrative grievances is
not appealablc to thc DCA pursunnl to
section 120.68, Fla. Stat.
The only appeals that may be filed
directly to the DCA by prisoncrs are
those stated in section 120.81 (3) (a),
Fla. Slat.
The DCA DlSMISSE.D Whitehurst's latest appeal and advised him if
he continucs to institute such appeals
thc court will consider sanctions to ensure his frivolous filings do not further
disrupt the court.
See: Whirehurst v. DOC, et aI.,

_So.2d__. 24 Fla. L.Weckll' (D)

F.P.L.P. VOLUME 5, ISSUE 6

2048 (Fla. lSI DCA 9/1/99).
[Comment: In practicc, only
denials of petitions to initiate rulemaking filed by prisoners to the
DOC pursuant to section 120.54
(7), Fla. Stat., are directly appealable to the DCA per the provisions
of section 120.68,Fla. Stat. -sj]

PRISONERS MUST FULLY
EXHAUST ADMINISTRATIVE REMEDIES UNDER
PLRA
Georgia prisoner Charles
Harper filed a section 1983 civil
rights complaint alleging cruel and
unusual punishment for prison officials' refusal to provide medical
treatment. The district COllrt dismissed the case without prejudice
because Harper had not fully cxhausted the available inlernal administrative grievance process of
the GA prison system. Harper appealed to the 11 th Circuit COlirt of
A"ppeals.
The II th Circuit determined
that Harper had filed a grievnnce,
but that it was denied as untimely.
Harper did not appeal thai denial as
he could have done according to
GA prison regulations. Harper
claimed on appeal that such an administrative appeal on the untimely
issue would have been futile. and
because of that he exhausted all the
administrntive remedies Ihnt were
available, and thus, satisfied the requirements of the Prison Litigation
Reform Act of 1996, 4~ U.S.C.
sec. I 997e(a).
The appeal court disagreed
with Harper's argument The court
noted that Harper could have admi.nistratively appealed the
"untimely" grievance denial, and if
he could show "good cause" for filing the grievance untimely, then he
would have been allowed to file an
oUI-of-time grievance (and presumably exhaust the denial of medical treatment issue).

Therefore, the appeal court AFFIRMED the district COlirt'S dismissal
of the complaint without prejudice for
failure to exhaust administrative
remedies.
Sec Harper 1'. Dr. .Ienkin, el al.,
179 F.3d 1311 (11th Cir. 1999).

THE STATUS OF PAROLE IS
A CONSTITUTIONAL
QUAGMIRE
Recently, I learned that Virginia At 4
torney Thomas E. Smolka of Richmond, Virginia has filed a petition for
writ of habeas corpus he has filed 011
behalf of a Virginia inrn<lle. who has
demonstrated proof of psychological
stability and concrete evidence of rehabilitation. It is my understanding
thm Mr. Smolka believes his client
has been unfairly denied parole without having been afforded a fair determination of his eligibility for parole
by a neutral and unbiased tribunal.
The petition alleges as one of its'
grounds for relief, that the refusal of
the Virginia Parole Board to exercise
its discretion to grant parole pursuant
to Va. Code Ann. Section 53.1-134 et
seq., has effectively abolished parole
even for all eligible prisoller who has
exhibited genuine signs of rehabilitation. Smolka claims his client has
becn denied protection from retrospective ex post facIo legislation. in
that, the 1997 enactment of Va. Code
Ann. Section 53.1-134 placed an insurmountable hurdle before his client
in seeking parole. and resulted in punishment more severe than reasonably
contemplated by statute at the time
Smolka's client commilled the offcnse. Smolka argues that whcn the
Virginia Gencral Assembly amended
Section 53.14134 , it placed on the
Parole Board a person (a victim advocate) who invariably possessed an in4
terest diametrically opposed 10 his
client. an obstacle nOI present when
his client was sClHcllced.

Page 22

Smolka claims that when the Virginia State Prison in Starke was arrested
Genera' Assembly amended Section September 23rd as he anempted to
53.1·134 to provide that one member leave the prison with 5300 in
of the Parole Board shall be a repre· marked bills that had been gi\'en to
sentative of a crime victim's organi· him by a prisoner to allegedly purzation or a victim of crime, the Gen· chase marijuana.
eral Assembly effectively altered the Prison officials said Manning's arpossibility of his client 10 attain pa· rest was not connected with thc inrole. Smolka argues that the victim vcstigation into the beating dcath of
advocale most certainly harbors a prisoner Frank Valdez at the sallle
slrong bias against persons who have prison on July 17th.
commined a crime and may wholly Officials Slate Manning had come
ignore recommendations from institu- under suspicion back in March
tional staff and independent evalua· when Fla. Depanment of Law En·
tors (psychologists, sociologists, etc.) forcemenl and FDOC began inves·
that the inmate be granted parole. tigaling an escape pIal. Prison
Smolka argues that an impartial deci· guard uniforms, weapons, duci lape
sian-maker is crucial 10 fundamental and ether escape items were found
fairness, and that the placement of the and three prisoners were identified
victim's advocate on Ihe Parole as plolting to escape.
Board has yielded signilicant changes One of those prisoners, whose iden·
in the parole system. Mr. Smolka hos tity was withheld by prison offi·
alleged that parole has evolved from cinls, participated in setting up a
a consistem 'incentive for individual sting operation by giving Manning
rehabilitation to a mere illusion of marked money to purchase mari·
compliance to statutory authority by juana and return it to the unidentithe Parole Board. As a result, Smolka lied prisoner.
argues that the punishment for his Manning was charged with possess·
client has been rendered more oner- ing contraband in a correctional faous that the punishment contemplated cility and violating prison rules that
at the time of the offense, which has prohibit officers from accepting
resulted in impermissible ex post anything from prisoners.
facto legislation.
Manning was immediately lircd
by Ihe FDOe when arrcsted. Prison
Additionally, Mr. Smolka has alleged oflicials once ngain claim this was
a number of other grounds for relief, an isolated incident lind llot part of
including a claim that his client has a widespread problem.
been denied due process - in that, the (Source: Or/aI/do Selllinel.
Parole Board's actions have been ar· 9/25/99].
bitrary. abusive and contrary to slatu·
tory authority.
GOVERNOR BUSJ-I AD~IITS

FPLP will be following the progress
of this action.

FSP PRISON GUARD
ARRESTED IN DRUG
STING OPERATION
teven R. Manning, 52, a prison
guard with the Florida Department
of Corrections (FOGC) for 10
years. and who worked at Florida

F.P.L.P. VOLUME 5, ISSUE 5

TO NEGLECT IN I'RlSO 'S
Governor Jeb Bush has openly
admitted Ihat the sHlle's prison systcm suffers from years of neglect
and that the Dcpartment of Corrcctions "erred" in failing to provide
adequale medical hClllth care to a
SI. Petersburg woman who died in a
prison last year.
In a wrillen response to a series
of anicles published in the Sf. Pc-

/ersbllrg Times, Bush pledged that improvemellls are coming 10 the I .7 billion dollar a year prison system.
Bush provided no details as to
what would be done to improve the
system. Bush requested Corrections
Secretary Michael Moore to recom·
mend a plan of action that will ensure a
change in the culture of a depanment
that has sllffered from years of neglect
and lack of leadership.
(Source: Sf Petersburg Times. October
2,1999] •
PRISON LEGAL NEWS
-Perhaps lhe mosl dmiled journal
describing the devc10pmenl of ['rison 101\ is
I'rison Legal NeIlS,· -- Marti Ihlen. Director
Prison LllII Projccl of thc National U\I)Crs
Guild.
PLN is B 24 page. monthly magazine.
publish~d sinc~ 1990. ediled by Washington
stutc prisoners l'nul Wright and Dan Pcns, Each
issue is packed Ilith summnries and nnlllysis 0
recent court rulings dealing with prison rights,
wrinen from a prisoner perspecli\c. Also
included in each iSSue 3fC ne\\'s articles deoling
\\ ith prison-related snuggle and aeli\ ism from
the U.S. and around lhe Ilorld
I\nnual Suhscriplion rates 3fe 515 for
prisonen;. If )ou ean'l alford 10 send 515 01
once. scnd llt least 57.50 llnd ....e .... ill pro-mte
)our subscription llt 51 2S per issue. Please send
no tess than 57.50 per donation. Ne\\ (Unused)
U.S. postage stamps may be used as pa)menL
For non·incarcerated indil'iduals.. Ihe
subscriplion ratt is 52SJ)r. Institutional
subscriptions
(for llllOme)s. libraries.
government agencies. non-governmentnl
organizations. etc,) arc S60/yr Snmplc copies
arc available for 51 Contact:
Prison Legal News
PMB 14&
2400N.W.801hSL

Se:11I11: WA 98117

ATTENTION
LAW CLERKS
If you have suffered relalialion at the hands
of FDOC officials as a result of the performance of your law clerk duties or in
response to your personal grievances or
litigation actiVities. send the details to:
Jurislic Legal Aid Org.
POSt Office Box 24923
Oakhmd Park. FL 33307
Include copies ofany grievances.

Page 23

Florida Depanment of Corrections
260 I Blair Stone Rd.
Tallahas ee FL 32399-2500

(850) 488-5021
Web

ite: www.dc.stale.O.us

moe FAMILY O~lBUD

MA

"he FJXX.' has nlll:8-cdl)' crealcd a nc\\ poSlllon in the
centrol onice 10 addre~\ comphunts and pro\'lde asSIS-

lance 10 pu\{mer's ftumhes and friends $)1\'13 \VIIham~ ''0 Ihc FIX>C cmplo)cc nppolOltd llS the
"hmll} Omhudsman . According to Is Williams.
fhe Ombud m:lJ\ \\01..... 3S %1 medUllar bet"«rl (anllh~. IOmal
and the department to rench the most
clll:cll\C re.-",:llutlon·· The F(X)C Fanlli)' Services
1ll)Ihnc is loll·free I-8QO-S58..fH88

moc SPA

The FD<X. ha nlso crc:lIed a help Ime to

:lS.$ISI

governor to oversee the rJorida J)cpanmenl

Office of the Governor
PL 05 The Capilol
Tallahassee FL 32399-000 I
(850) -188-2272
Chief Inspector General
Cltucn's Assistnnce Admin

of Corrections. advise the governor and
legislature on corrccllomll i- ucs. and
promote public education about the
Florida.
The
correctional S) stem In
ommission holds regulnf meetings around
the

sUUe

\\hich the public rna) Bncnd to

input on issues

Span-

and problems

plOblmtS "lth

Tallahassee FL 32399·2450
(850)-188·2952
Coordinator Janet Kecl~

Florida ParoleIProbation Commission
2601 Blair Stone Rd .. Bldg C
Tallahassee FL 32399-2450
(850) 488·1655

Prisoners families and friends are encouraged
to cOlllnc:llhc Commission 10 adVise them of

problem

areas.

fhe

ommission

922-1637
.&88·71.&6

CommissiOn/Government Acc()umablilly
10 Ihe People..
922-6907
Office or EXCCUlhc Clemelle)
2601 Blair StOlle Rd
I3Idg. C. Room 229

3fTccting the correctional :-oystcm in Florida

I. h·.. pcnkllll:! Clllleno; obmm mforrnatlon from Ihe
depnnmellt I Ina IllnlOll IS lIle I'DOC employee III
Ihl position ("onlacl I·SOO-Sl0-4:!-I8
tUI}

1'lC Florida
arrections COlllmission i
composed of eight CltllCnS appointed by the

provide

I III1ELPLINE

IPh::ue mrllll1\ FPIJ) of ~ou hnH
lile al\(I\C 'iCrvICes)

Florida Correction, Commission
2601 Illmr lone Rd
TalJahasec Fl 32399·2500
(850)-113-9330
FiLq850)-li -9141
EMail: fcorcom"i11111Iil.dc.SltlIC.n.U5
Web Slie w,",,,,, do-. ~Int; 11 uslrgllvngencll:s/fcc

is

independent of the FDOC .md is interested in
public particlpnuon .tnd commenlS
concerning the O\crsight 01 Ihe FDOC

Depanmcnl of Law Enrorc~ncnt
1'.0. Box 1489
Tallahass<:c FI 32302
(850)-188-7880
Web Silc: ww\\fdlc.. lalc n u...

Florida Resource OrganiLations
Florida Institutional Legal ef"\ ices
IIIO-C W 8th A\c
Gainesville FL 32601
(352)955·2260
FiL" (352)955-2189
EMail: liIs@afn.org
Web itc: w\\ \\ .afn.orgifilsJ

Families wilh Loved
ones In Prison
710 Flanders A \C.
Daylona Bch FL 32114
(904)254-8453
E~lail:

Oip'aafn.org

Web Site: \\\\\\.afn.org/ nip
Restomthc Justice Ministr)' Nel\\ork
1'.0. Box 819
Ocala. FL 34478
(352) 369-5055
Web: \\ \\\\ .rjmn.ncl
Email: BCn1ic~rJmn.m:t

II '"~

FLORIDA
sun CRIPTIO

PRISON

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hangr
'olice so that the mailing lisl cDn be upduted.
l"justiL'e unywhere is n threat 10 justice e,'er)'where. - Martin Luther Killg,
Jr.

F.P.L.p. VOLUME 5, ISSUE 6

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FLORIDA

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Page 24