FLORIDA PRISON LEGAL

ers ectives
VOLUME 10

ISSUE 6

JEi'lPLAO Clbe:JI'Dmnges.
N~n.y ~posed

FDOC NIaill R.u1l.e

T

he
Florida
Department
Corrections (FDOC) is at it
again-trying to adopt a rule to
restrict prisoners' and their outside
correspondents' communications by
mail. Since) 998 the FDOC has tried
no less than. five times to adopt a rule
to prohibit Florida prisoners from
receiving postage stamps through the
mail from their families, friends and
supporters. Every time the FDOC
proposed such rule for formal
adoption,
however,
Florida
Prisoners' Legal Aid Org., Inc.
(FPLAO), challenged the proposals
and was successful in preventing the
rules' adoption. Finally, the FDOC
ceased trying to adopt a rule
prohibiting prisoners from receiving
postage stamps in incoming mail.
Yet, as is usual when the FDOC is
stymied in its constant attempts to
roll back prisoners' rights (while
ignoring the fact that such actions
can and do impact the rights of
nonprisoners in certain instances),
the FDOC responds by trying to

ISSN# 1091-8094

accomplish its original goal in a
different manner.
On Sept. 24, '04, the FDOC
published its first notice that it
intended to adopt a rule to prohibit
Florida prisoners from sending
postage stamps· to anyone in their
outgoing mail to pay for products or
services. The FDOC followed its
first notice up with the required
second (and final) rulemaking notice
on Oct. 22. The full text of the
proposed rule, which would be
codified at Chapter 33-210.101(22),
Fla. Admin. Code, reads:

(22) Inmotes shall not use postage
stamps as currency to pay for .
products or services.
Postage
. stamps placed in outgoing mail for
this purpose will be deemed
contraband.
Incoming· mail that
solicits inmates to purchase products
or services and allows payment with
postage stamps will be rejected.
After the FDOC gave the
second notice of its intent to adopt
that rule, FPLAO Chairman Teresa
Burns
Posey
contacted
the
department's
central
office

NOV/DEC 2004
questioning how the proposed rule
would be applied. Specifically she
wanted to know if the rule would
prohibit prisoners from sending
postage stamps to FPLAO to cover
membership dues, to make general
donations to help support the
organization's services to all
members, or to cover return postage
for free information provided as a
service of FPLAO. The FDOC's
response is that the rule would apply
to pos~ge stamps sent to FPLAO,
just like any other entity, when the
stamps are intended as currency. Ms.
Burns Posey took that response to
mean "Yes" to her inquiry.
On Nov. 12, "04 a petition
was filed with the Florida Division of
Administrative Hearings by FPLAO
challenging the constitutionality and
statutory validity of the proposed
rule. The petition alleges that the
proposed
rule
would
violate
FPLAO's free speech,
press,
association and liberty rights under
both the federal and Florida
constitutions.
The
petition

FAMIUES ADVOCATES I'R1SONIlRS

ON

I

THE
INSIDB

Gibson Revised Opinion
~
~
Female Prisoner Held Naked at Male Prison
Private Prison Commission Violated Law
Blakely Not Retroactive
Summary Judgment Denied in Censorship Suit
Notable Cases

,

2
3

.4
5
5
,

8

Florida Prison Legal Perspectives

fLORID. PRISON LEGAL PERSPE.CTlVES
P.O. BOX 660-387
CHULUOTA, FLORIDA 32766
Publishing Division of:

ROHIIl PHISOIUS' UGAlAID ORUHIUDOH, INC.
A 501 (c) (3) Non·profit Organization
',I ','

Fax (407) 568-0200
E·mail: fpll1@!!!l.!£mn
Website: wyiW,{plap,om

FPIAO'DIRECTORS

Teresa Bums-Posey
'" .. :iBob Posey, eLA
':"i)«;,David W. Bauer, Esq.
,;'.!
Loren D. Rhoton, Esq.
Oscar A. Hanson. m, CLA
Linda E. Hanson

fPlPSTAFF
Publish,er
. Editor ..

:. ,",
'
Associate Editor.>'
Research:'-':" ","", "
".'.) ,

',' '. ',"

ADVISORY BOARD

WilUam Van Poyck
Michael Lambrix
Mark Sherwood
.. Elizabeth Green
John Hudson
,'Anthony Stuart
,:,t:.ip~Gouieb
'

Teresa B.ums-Pos~y
, Bob Posey
Oscar A. Hanson, Ip.
Shern Johnson

.

Phillip Bagley
. Susan Manning
Gene Salser
Terry VaQgbn ,
Mark Osterba<:k
EnriqueDiaz
David Reutter "
,

Florida Pristlnm' Legal Aid OrglInization. Inc., P.O. Box 660-387.
i' Cbuluotli> ,'F!,.' 32766,jJ\lblishes FLORIDAPRJSON LEGAL
PERSP~ (FPLP) up 10 ,six times II year. FPLPls a nonl'rofit
,"p,ilbU_n focusing ollth,e ,mbrld~,ptison',ll!1d' crinliq~l justice systems,
fPl:P provl~ a vehicle 'tlitncws; infOnnatlon. and resources alTec:ting ,
:pnen. their ramlt~es; "~ib.loved 0li\lSt ond thegenerul public 01
.' Flarlda.Reduetion.of1cdine;ind"ri:cidivism. maiJi,clllUlCe of family ties,
·,,cfv{1 riilhts, iml!(QVfn-. ~!I~itio~of continmtent, pro'!10ting ~ed ccurt
;,~for priSQlIl:I!,l$iJ'Pt'C!ffl.otIDJ'l\CtOUnt!lbiUtyofpnson officIals lU\lalt
. iSsues :FPLP is'dcs!gned to 1@Ims. FPLP's' nQn-~orll:eY volunleel', stafI
;cannoJ ~'to reqUesu ,fat IcpI advice..Due 10 the volume ofmalltJll1l
. lSrecCived and volun~ 'sWf Iimitotions. all corrCspo~ that' is.
RCdvc4 ~ot be- ~nded to, but all mail will receive individual
·_tlQn. :Pcrmlssionis.pted to reprint material appearing In FPLPthat
· does not indicate it is copyriJltted provldea that FPLP and any indicated
authorare,idenufled in the rqtrll1tand,a ccpy of the publication in \\bich
the material lspublished is provided 10 the FPLP publisher. This
Pl'bliCi\tilin.isoot meant to !it II subStitute for legal or other pr:o~ionlil
,advice; 'Thematerilil in FPLPsl10uld not be relied,upon as authontatlve ond
, t1lay Not contain sufficienl infol1Jllltion todel1l with II legid problem, FP~P
, is.aulomatically sent .to a.lI members' of 'FPLAO, Inc., as a membership .
bCneliL Membersbip dues t'or FPLAO, Inc., operate yearly and are $9 for
· prisonl:l!, $15 for family membets and other private individulils, $30 for
attorneys, and $60 for agencies, libraries. and institutions. Family member.>
or loved ones of prisoners who are UMble 10 alford the basic membersbip
d!iCS may, receive membetsbip f9r, any size dllnalion they con atTord.
Prisoners may pay membetship dues with new unused postage stamps.
Prisoners on death row or eM who cannot alford the membetship dues
may request a waiver of the dues. whieh we will grant as resources permit.

2

Gibson Revised Opinion
In the last issue of FPLP the case of Gibson lI. FDOC,
29 Fla. L. Weekly S356 (Fla. 718/04)"wasreported on (pgs.
13-15).
Following the Florida Supreme' Court's decision in
Gibson, the Court granted rehearing and made:.some rather
significant changes. The most notable change was the
Court's retraction of the Do.u~le Jeopardy findIng where the
Court had previously determined that the forfeiture of gain
time from it sentenc~previously ..serveCf iinpennisslbly
revived Gibson's sentence in violation of the Double
, Jeopardy clause. In the ·revised opinion, the Cow:t held that
the gain time forfeiture did not result in a double jeopardy
violation because Gibson had received a cumulative sevenyear sentence upon revocation of probation. Had be received
neither Tripp credit nor the gain time forfeiture penalty, he
would have been compelled to serve all seven years. less
any newly earned gain time. However, the Court recognized
that the trial court granted Tripp credit, the DOC subtracted
1681 days of Tripp credit on the sen~ncesin Case Nos. 93216 and 93-297, yielding 874 days or 2.4 years to be served
on the seven-year (25SS-day) term. Then, ,in order to
effectuate the intent of section 944.28(1) in a manner that
the prisoner be penalized for probation violation by loss of
gain time previously accrued, the DOC applied section
944.28(1) in a manner that required Gibson to serve no less
than the forfeiture penalty upon revocation of probation.
Because the forfeiture' penalty exceeded the sentence
imposed upon revocation,ofprobafjon,after de<hl~tion f time
served on the prior sentence, GJbsoncserved' onIythe
forfeiture penalty. rather then the seven years he would have
served without either the credit or the penalty. In sum, the
Court found that Gibson did not suffer a Tripp penalty in
which the forfeiture of gain time from the completed
sentences resulted in a sentence on violation of probation
longer than he would have received without taking into
consideration the completed sentence forpurposesofeither
the· Tripp credit or statutory forfeiture penalty. With no net
increase in the revocation sentence based on the expired
sent~nce, the Court rejected the double jeopardy Issue. See
Gibson v. FDOC, 29 Fla. W. WeeklyS626 (October 21.
2004)-oh

,t" 1000's of Hot Sexy Pies! Bikini, Thongs, Minis ...
"ifr

J7
<1"

etc! $5.00 for a catalog. $10.00 for a catalog wi
autographed 8x10. Always new models! New
4
& highly advertised site! www.
writesomeoneinprison.com For info, send a
_-<!"
SASE to: Nubian Princess Ent. P.O.B. 110
;,
Bklyn. N.Y. 11224....FP make cks/MO's out t o .
Nubian Princess Ent.

Florida Prison Legal Penpectives
.

-

also asserts that the rule, that would
authorize rejection of FPLAO's
routine mail to prisoners when such
mail solicits postage stamps as
membership dues from otherwise
indigent prisoners, (or as in-:kind
general donations to the nonprofit
organization, or soliciting postage
stamps or SASEs in order to receive
information from the organization)
without providing a constitutionallyacceptable procedure for FPLAO to
appeal
such
rejection
of
constitutionally-protected mail, the
rule violates FPLAO's guarantee of
.due process under' both the federal
and state constitutions. Further, the
petition claims the proposed rule is
an invalid exercise of delegated
legislative authority, because Florida
statutes do not authorize such a rule,
the proposed rule is vague and
arbitrary and fails to establish
adequate standards, while vesting the
FDOC with unbridled discretion, in
addition to not being supported by
competent substantial evidence. (See
§ 120.52(8), Fla. Stat.) For example,
the proposed rule would authorize
the rejection of any incoming routine
mail sent to prisoners soliciting them
to send postage stamps (or SASE s)
to pay for products or receive
services, but prisoners would s~iIl be
able
to
receive
publications
containing
the
exact
same
solicitations.
FPLAO's rule challenge will
effectively stop the FDOC's adoption
or legal implementation of the
proposed rule while the challenge is
ongoing. If a favorable outcome
(withdrawal of the proposed rule) is
not obtained in the Division of
Administrative Hearings, FPLAO
will carry the challenge to the courts.
The organization will do this because
its directors believe the freedoms of
. speech, press, association and liberty
are every person's most precious and
valuable rights' and that they much be
zealously protected, especially from
bureaucratic encroachments.
FPLAO's
directors
are
convinced that the proposed rule
noted herein, if allowed to be

adopted. will negatively impact not
only the ability of all Florida
prisoners to receive information from
outside the prisons but also
improperly restrict the ability of
many nonprofit organizations, who
depend on postage stamp donations
or SASEs, to provide services to
prisoners. Under this proposed rule
prisoners would be prohibited from
receiving a wide variety of services
or information from any source that
requests a few stamps or an SASE to
cover return postage, or to help offset
printing costs, and those sources
would be prevented from providing
the service or information.
FPLP will provide updates
on this proposed rule challenge as it
proceeds.
In the meantime, any
prisoners who wish to join FPLAO
or renew their membership by
sending postage stamps to cover
membership dues, or to simply make
a donation of stamps to FPLAO, are
free to do so.. Your help and support
is always needed so that we can
continue to check and balance FDOC
excesses.
[Note: The above noted DOAH case
is: Florida Prisoners' Legal Aid
Organization, Inc., v. Department of
Corrections, DOAH Case No. 044094RP.] •

FemmDe Prisoml.eJr Helcl
Nakecll at MalLe PrisoD:
Six :IFDOC :IBmmpD.oyeea
lLoac .Jobs

TYPING
SERVICE
Computer - Typewriter
Transcribing
All KINDS OF TYPING
\ncludlng but not limited to:

legal Briefs, Newsletters.
Articles. Books, Manuscripts,
Text Documents. Database,
Charts, Forms, Flyers. Envelops,
Black I Color Printing & Copying
ipflelal Ra'll-r. ~or prlsOnflT15
FOR A FREE.PRICE LIST AND
MORE iNFORMATION
CONTACT:

LET MY FINGERS

DO YOUR TYPING
Sandra Z. Thomas

POBox4178

Winter Park, FL 32793-4178
Phone: 407-579-5563

ENRIQUE J. DIAZ hasjoined the
firm of MARIA D. CUETO. P.A.. As a
Legal Assistant. We offer the following
services.
-Post-eonvietion
·Willsltrustslc:stales
-nOAH proceedings ·Family L.1W
-Institutional issues
Enrique J. Diaz. Lc:g.al Assistanl
Maria del Carmen Cueto. P.A.
717Ponce de Lwn Blvd..
Suite: 234
Coral Gables. FL 33134
Ollice (30S )446·3266
Email: Crimlawt1a •i!3ol.com

A

n internal investigation by the
Department
of
Florida
Corrections (FDOC) concluded there
was no evidence found that a suicidal
female prisoner, who was confined at
the all-male Zephyrhills Correctional
Institution for two months, had been
sexually abused, but the warden and
five other top officials were still
forced to resign, fired or demoted.
The investigation, conducted
by the FDOC's office of inspector
general, did conclude that the 27year-old woman had been transferred
to the psychiatric unit at Zephyrhills

Advertise in FPLP
Target new clients or customers
dlrougb advcnising in FPLP. For
advcniscmcnt and rate information
write or email to the belo.w:
FPLP
Attn: Advcnising
15232 East Colonial Dr.
Orlando. FL 32826-5134
or
fplpads@aol.c:om

3

Florida Prison Legal Perspectives
from the female prison in Broward
County, because she had threatened
suicide and then once at the male
prison she had been held naked at the
prison "for several days."
A
spokesman for the FDOC said it is
unclear how long the woman (who
the department refused to identify
because of federal privacy laws) had
been held naked in a suicid~proof
cell, but that was against FDOC
policies and was the reason the six
employees, all men, are no longer at
Zephyrhills CI.
Warden
Gary Thomas,
assistant warden' Ray Mulally,
Colonel Donald Leigh, and chief
health officer Dr. Stephen Shanklin
all resigned from the FDOC in early
October.' Prison psychiatrist Dr.
Noah Jeannette was fired October 6,
2004. And Major Leonard Kuhns
was demoted five levels and
transferred to Brevard CI.
The incident came to light
Sept. 30 when an unidentified
whistleblower contacted John Burke,
the FDOC's deputy assistant
secretary for health services,
informing him a female prisoner was
being held at Zephyrhills without
clothing. FDOC policies require that
suicidal prisoners be provided with a
special . garment made of heavy
canvas that cannot be ripped. In this
case, the investigation found, the
woman was not given the garment
even though her regular clothing had
been taken from her.
The woman, who is serving a
23-month sentence for having sex
while HIV positive and battery on a
law enforcement officer, had been
transferred to Zephyrhills on July 30,
but the investigation was unable to
conclude just how long she had been
held naked. She was transferred
back to Broward Cion Oct. 2 and is
still under suicide watch.
Sterling Ivey, the FDOC's
spokesman, said the cell the woman
had· been held in was private, with a
solid steel door that has a opening for
a food tray and a small Plexiglas
window in it. ..It is definitely not a
fishbowl," Ivey said.
Ivey also
4'

claims the woman was kept
separated from Zephyrhills 600-plus
male prisoners but admits that she
would have been guarded by male
officers.
Ivey said that's not
uncommon, since male officers work
at female prisons.
The FDOC quickly moved to
replace those employees who lost
their jobs. Ken Miller, who worked
in the FDOC's Orlando regional
office. was promoted to be
Zephyrhills' Warden, while Barry
R.eddish, a former supervisor at
Florida State Prison, was. appointed
to t~e assistant warden vacancy.
[Source: St. Petersburg Times] •

FRorida lPrison lPlIlmLeR

Viollatedl Law
lorida's
private .. prisons
. commission violated state law.
last year when it hired former
corrections secretary Michael Moore
as a consultant with a salary of
$81.500. But, as usual, it is unlikely
there will be any repercussions.
According to officials. there
is no ~nforcement mechanism or
penalty and the law violation does
not fall under the state Ethics
Commission.
The
Florida
Department of Law Enforcement
found no evidence of criminal
wrongdoing, or so they say.
Apparently
the
stink
surfaced when Alan Duffee, former
executive director of the Correctional
Privatization Commission, hired
Moore to oversee rebidding of two of
the state's· five private prison
contracts.
Duffee hired Moore
without conducting a public search
one month after Moore was forced to
quit his corrections position. Moore
immediately hired his former chief of
'~taffat the DOC and a departmental
staff attorney.
While state law generally
does 110t prohibit agencies from
hiring former state employees as
consultants. the state Legislature had
passed a state law that prohibits the
commission from hiring anyone who

F

had worked either in state ccrrections
or juvenile justice departments
within the previous two yeatS'.
Duffee made a lame
argument that he did not break state
law because he hired Moore's firm,
MWM and Associates. not Moore.
But no one is buying that red
herring.
Last spring the· Florida
Legislature voted to do away with
the
Correctional
Privatization
Commission, turning over all its
responsibility to the Department of
Management Services effective July
I. 2004. The Legislature's vote
came in the. midst of expanding
controversy about the commission,
an independent board created when
the state Department of Corrections
repeatedly
rejected
lawmakers'
demands to privati~ some state
prisons.
In the year leading up to its
demise.
the commission was
lobbying to rebid the state's private
prison contracts for the first time in
eight years. The Moore debate was
at least the second time in four years
the inspector general found the
commission and· its employees had
violated state law.
In 2000. the inspector
general
found
that
former
commission employee Ronald T.
Jones had violated state law when he
accepted a job with a private prison
vendor within two years of leaving
his commission job.
Former
commission
executive
Director
Clayton Mark Hodges was also
found to have violated state law by
failing to report the receipt of an
honorarium from another private
prison company that was trying to
win a Florida prison contract.
[Note:
FPLP has previously
reported on the travails of the
Privatization Commission, see Vol.
10. Iss. 3. pg. 28 and Vol. 10. Iss. 4.
pg. 8.-editor] •

Florida Prison Legal Perspectives

T

he Eleventh Circuit U.S. Court
of Appeals in Atlanta, with
federal jurisdiction over Florida;
Georgia and Alabama, has held that
the U.S. Supreme Court's decision
earlier this year in Blakely v.
Washington could not be. applied
retroactively to cases on collateral
review, at least until such time as the
Supreme Court it$~lf specifically
declares that the rule announced in
Blalcely applies retroactively.
The
Eleventh
Circuit
decision on Blakely s retroactivity
came in ~ case brought by federal
prisoner Will C. Dean, who had filed
an application with the federal
appeals court seeking an order
authorizing the federal district court
to consider a second or successive
motion to vacate, set aside or correct
his sentence pursuant to 28 U.S.C.§§
2255 and 2244(b)(3)(A).
Under
those provisions, as amended by §§
lOS and 106 of the Antiterrorism and
Effective Death Penalty Act of 1996
(AEDPA), such authorization may be
granted only if the appeal court
certifies that the second or successive
IJl()tion contains a claim involving,
(1) newly discovered evidence,
sufficient to show the movant was
not guilty; or (2) a new rule of
constitutional law, made retroactive
to cases on collateral review by the
Supreme Court, that was not
previously available. 28, U.S.C. §
2255.
In Deans' application he
indicated that he wanted to raise one
claim in his second or successive §
2255 motion,. Le., that the district
court violated his Sixth Amendment
right to a jury trial by enhancing his
sentence under th~ federal sentencing
guidelines based on his leadership
role in the ~ffense and other relevant
conduct, even though the facts
supporting
those
guideline
enhancements
were
neither
mentioned duririg his plea -colloquy
nor proved to a jury beyond a

reasonable doubt. Dean asserted that
his claim relied on a new rule of
constitutional
law,
citing
the
Supreme Court's decision in Blakely
v. Washington, 124 S.Ct. 25-31
(2004), which announced the rule
that the Sixth Amendment right to Ii
jury trial requires that facts
supporting sentencing enhancements
must be admitted to by a defendant
or be determined by a jury beyond a
reasonable doubt (facts other than
those of a prior conviction, Apprendi
v. New Jersey, 120 S.Ct. 2348
(2000».
The Eleventh Circuit did not
dispute that Blakely established, a
"new rule of constitutional law," but
held that regardless of such
establishment, the Supreme Cpurt
has not "expressly'declared Blakely
to be retroactive to cases on
collateral review," and unless or until
the high court declares same the rule
established in Blakely cannot be
applied retroactively to collateral
review cases, citing Tyler v. Cain,
121 S.Ct. 656,662-63 (2001).
It is not enough that a new
rule of constitutional law is applied
retroactively by an appeals court or
that it satisfies the criteria for
retroactive application set forth in
Teague v. Lane, 109 S.Ct. 1.060
(1989), the Eleventh Circuit held,
"the Supreme Court itself must make
the rule retroactive." Further, while
the appeals court noted that while
multiple cases can, together, make,a
new rule retroactive, that's true only
if the holdings in those cases
necessarily dictate retroactivity,
citing Tyler at 2484. Which has not
happened.
'"
The appeals court pointed
out that BlakelY itself was decided in
the context of a direct appeal and the
Supreme Court has not since applied
it to a case on collateral review. In
fact, the appeals court notes that the
Supreme Court "has strongly implied
that· Blakely is not to be applied
retroactively," where on the same
day that Blakely was decided, the
high court also decided Schriro v.
Summerlin, 124 S.Ct. 2519 (2004),

holding that Ring v. Arizona, 122
S.Ct. 2428 (2002) (which like
Blakely was an extension of
Apprendl) was not retroactive to
cases on collateral review. Thus, the
appeals court held that ·Dean cannot
show that the Supreme Court has
made the Blakely rule retroactive to
. cases already final on direct review,
and Dean's application for leave to
file a second or successive (post·
conviction) motion was therefore
denied.
See: In Re: Will C. Dean.
Jr., 375 F.3d 1281 (\ lib Cir. 2004).
.

~

FDOC Demuled.
S1lJlD'1lmrnany JrllJl4'igment

mJPlLN
C«ms01l:'1!!lbip Suit
by Bob Posey

E

arlier this year it was repOrted
that Prison Legal News (PLN), a
Washington ··Stat~based nonprofit
magazine, had filed a federal lawsuit
against the Florida Department of
Corrections (FDOC). See FPLP,
Vol. 10, Iss. 1, Pgs. 4-5. That.
lawsuit .claims the FDOC violated
PLN's constitutional rights when
prison officials refused to deliver the
prisoner
magazine to Florida
subscribers last year because it
. carrieS advertisements for companies
that offer lower prison collect phone
call rates to prisonerst .families. The
lawsuit also claims that PLN's right
to due process was violated by
FDOCts . failure to. provide the
publisher notice of the rejection of
the magazine and that a prison rule
prohibiting prisoners from writing
for
publication and
receiving
compensation is unconstitutional.
After the lawsuit was filed
the FDOC changed its tune and said
the phone service ads were okay and
they would no longer censor the
publication for such ads or for penpal company ads. Unfortunately, the
FDOC had previously said the ads
were okay only to change its position
a month or two later and again
5

Florida Prison Legal Perspectives
censor the publication for the same
ads.

Shortly after the lawsuit was
filed by PLN in the U.S. District
Court in Jacksonville, Florida, the
FDOC lTotioned the caurt to dismiss
the claim concerning the prisoner
compensation issue. U.S. District
Court Judge John H. Moore [[ denied
that motion for partial dismissal on
April 26, 2004.
More recently the FDOC
filed a Motion for Summary
Judgment asking the court to find in
the department's favor on the.
censorship and due process violation
claims. In its motion the FDOC said
it is entitled to judgment in its favor
on those issues because they are
moot due to a change in prison
policies and practices. The FDOC
asserted that "[r]egardless of the past
application of the challenged policies
and
regulations...the
evidence
submitted herewith conclusively
demonstrates that the challenged
policy as to 'three way' telephone
calling services has been officially
changed," rendering PLN's claims
moot. Further, the FDOC contended
that they have not censored the

magazine due to pen-pal service ads
because, like the phone service ads,
such ads are allowed if 'incidental' to
the publication under a newlyenacted prison procedure.
PLN responded that any
alleged prison policy change by the
FDOC does not render the claims
moot. PLN pointed out that the
FDOC has "flip-flopped" on their
policy stance at least· three times just
while·trying to censor tI:leir magazine
and thus, conceivably, remain free to
once again change the policies at the
conclusion of the lawsuit. Judge
Moore agreed,. noting the numerous·
times that the FDOC "flip-flopped"
in censoring PLN and comparing this
case to "other cases in which courts
have held that voluntary cessation of
allegedly illegal conduct will not
render a case moot if the Defendants
can simply return to their old
policies," citing U.S. v. W. T. Grant
Co., 345 U.S. 629, 632 (1953) and
City ofMesquite v. Aladdin's Castle,
Inc.,455 U.S. 283 (1982).
Judge Moore held that
FDOC had not met their burden of
establishing as a matter of law, that
PLN's claims are clearly moot

because the FDOC have "completely
and irrevocably eradicated the effects
of the alleged violation." Dow Jones
& Co., Inc. v. Kaye, 256 F.3d 1251,
1254 (I lib Cir. 200 I).
On November 16, 2004,
Judge Moore denied tile FDOC's
summary judgment motion and
cleared the way for the lawsuit to go
to trial.
Prison Legal News v. James
V. Crosby, Secretary FDOC, et. aI.,
Case No. 3:04-cv-14-J-16TEM
(M.D. Fla., Jacksonville Division).
[Note: We have received word from
the good folks at PLN that they and
their attorneys are now considering
amending their complaint in the
above noted case to challenge
additional mail policies/rules of the
FDOC.
We'll keep our readers
informed about developments in
PLN's case as it proceeds.
Subscription information for Prison
Legal News can be found on the back
page of this issue of FPLP. - bp] •

Dtwl4 ~ Colllna, Attomq tit LtIw .
Former SIIIe prosecutor with more than 18 years of c:rimiDallaw experieuce
"AV" raied by tdutindale-Hubbcll Btv R6g1it1, o/Pre.mbr.nt ~I
YOII' WJIN,. TtIIId_,."...,.,.. ,.IN,.;" (I/J . . . oJ~"NlI¢
Appeals
,3.800 Motions
3.850 Motions
State and FedenlHahas Corpus
Writs ofMandamua
Parole Hearlnp
ClemCDC)'

Plea Bac'pin Riabts
.
SeDIenciq and Scoresbeet Erron
e;".", Tripp, KarClruq, H• • cases
lai1-clme Credit Issues
.
Oain-dme ElipbiUty Issues
Habitualization 1aues
ProbadOD R.evocatio11lssues

w'*.. tIIdil1t11JolIIyo;" CllUI

"

David W. Collins, Esquire
P.O. Box S41
MoJdiceUo. FL 32345
(850) 997-8111
""The hlMa or. Iaw)er . . . ~ dccIsIon dlIIlhovId aor bIscd IOIdy upon IIIvatIumaI1s.
Before you decIdt. _ .
)'ClU ftw wrbIen 1nfannIlIoa. . . "'Y quaIlficadoftIMd CllIIICrioncc."

10'"

6

be

Florida Prison Legil Pers~*,':'
'.

I

;'

#

RHOTON.&HAYMAN, P.A.

,

I

LOREN D. RHOTON
. AUomey At Law

.[f;m~·£Q~g!o:~\P;?WiJ
(f)

,<t
(f)
(f)

'<+I
<+>

DIRECT APPEALS .
STATE POST CONVICTION
SENTENCE CORRECTIONS
FEDERAL PETITIONS FOR WRIT
OF HABEAS CORPUS
NEWTRIALS
INSTITUTIONAL TRANSFERS
412 East Madison Street
Suite 1111
Tampa Florida 33601 .
(813) 216-3138
. F~('P) 211·1182

7

Florida Prison Legal Perspectives

•

The following are summaries ofrecent state andfederal cases that may be useful to or have a signijicanl impact on Florida prisoners
Readers should always read the full opinion as published in the Florida Law Weelc/y (Fla. L. Weekly); Florida Law Weekly Federai
(Flo. L. Weekly Fetleraf): Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F.3d): or the
Federal Supplement 2d (F.Supp. 2d), since these summaries arefor general information only.

u.s. APPEALS COURT

R

provisions.
It ruled that section
1915(e) barred the amending of the
complaint, and based on the threestrikes rule of section 1915(g), the
Brown v. Johnson. 17 Fla.L. Weekly
111
case
could not proceed in forma
Fed. CIIS3 (11 Cir. 10/18/04)
pauperis.
This case revolves around
On appeal to the United
two issues regarding the Prison
of Appeal, the Eleventh
States
Court
Litigation Reform Act (PLRA):
Circuit
addressed
those
two
whether a prisoner, who, seeks to file
provisions
that
the
district
court
cited
a complaint in forma pauperis, is
for its dismissal.
barred by the PLRA from amending
Under Federal Rule of Civil
,his complaint before either a
Procedure
15(a), a party may amend
responsive pleading or an order of
a
complaint
once as a matter of
dismissal has been filed; and,
course
at
any
time before a
whether a prisoner who suffers from
responsive pleading is served. It was
human
immunodeficiency
virus
found that the' complaint was
(HlV) and hepatitis and alleges both
amended before any responsive
withdrawal of treatment in deliberate
pleadings had been filed.
indifference to his serious medical
The Court of Appeal further
needs and imminent danger, of
determined
that
section
serious physical injury is barred,
1915(e)(2)(B)(ii) does not allow the
under 28 U.S.C. section 1915(g),
district court to dismiss an in forma .
from proceeding in forma pauperis
pauperis complaint without allowing
because he has filed thr~ or more
leave to amend when required by'
frivolous lawsuits.
Fed.R.Civ. P.15.
Such a case triggers three
As to the second provision '
separate provisions of the PLRA: 1)
the
district
court cited, section'
28 U.S.C. section 1915(8), bars a
1915(g),
the
three
strikes provision,
prisoner from proceeding in forma
from filing a
bars
a
prisoner
pauperis after he has filed three
in
forma
pauperis,
unless
complaint
meritless lawsuits, unless he is in
is
under
imminent
the
prisoner
imminent danger of serious physical
danger of serious physical injury.
injury; 2) 28 U.S.C. section
HlV and hepatitis are medical
1915(e)(2)(B)(ii), directs the district
illnesses that are well known to
court tQ dismiss the complaint of any
ultimately lead to serious physical
plaintiff proceeding in
forma
problems and even death, especially
pauperis if the court determines that
without any treatment.
the complaint fails to state a claim on
However, the showing of
which relief maybe granted; and, 3) ,
imminent
danger of serious physical
28 U.S.C. section 1915A, directs the
is
not
enough., The amended
,
injury
district court to dismiss the
complaint
must
state deliberate
complaint of a prisoner if it fails to
indifference
to
serious
medical
state a claim.
to
consider
is
needs.
The
question
The district court, in this
whether
a
valid
claim
is
stated
under
case, erroneously dismissed the
the Eighth Amendment.
complaint citing two of the above

A deliberate indifference to
serious medical needs of a prisoner is
well established to constitute the
necessary and wanton infliction of
pain, which is proscribed by the
Eighth Amendment. To show that a
prison official acted with deliberate
indifference to a prisoner's serious
medical needs, both an objective and
a subjective inquiry must be
satisfied.
First, prove an otijectively
serious medical need. then prove that
the prison official acted with
deliberate indifference to that need.
A serious medical need is considered
one that has been diagnosed by a
physician as mandating treatment or
one that is so obvious that even a lay
person would easily recognize the
necessity for a doctor's attention,
such as the HIV and hepatitis
illnesses involved in this case.
After showing the serious
medical need, the element of
deliberate indifference to that need
must be established. To do so, the
complaint must show three facts: 1)
subjective knowledge of 'A risk of
serious harm; 2) disregard of that
risk; and, 3) by conduct that is more
than mere negligence.
According to the complaint
that was before the Court of Appeals,
it was found that the prison officials
were well aware of the prisoner's
HIV and hepatitis diagnosis, knew
the risk of serious harm it would
cause the prisoner if he went without
proper medical treatment, but still
completely withdrew the proscribed
treatments needed.
.
The Court of Appeals found
that the district court abused its
discretion in dismissing such a
complaint and reversed the judgment

Florida Prison Legal Penpectives
and remanded the case for further
proceedings. -as

u.s. DISTRICT COURTS
Hogarth v. Crosby, 17 Fla.L.Weekly
Fed. DI045 (N.D. Fla. 5/17/04)
Richard Hogarth properly
•
filed a petition pursuant to 28 U.S.C.
section 2254 for writ of habeas
corpus where he complained that his
plea of guilty
was entered
involuntarily. He asserted that the
trial court nor his defense counsel
informed him of the nature of the
crime he was charged with.
After a review of the record,
the Northern District of Florida's
United States District Courts found
that Hogarth's complaint was
correct. The District Court, in their
ruling, cited to numerous authorities
of clearly established law in the
determination of a guilty plea's
validity.
In brief, it was expressed of
the importance involved for an
accused to have adequate notice of
the nature of the charge against him,
and the trial court to have proof that
he in fact understands the charge.
Without such, the plea caMot be
considered voluntary.
A defendant receives real
notice of the charge when he has
been informed of both the nature of
the charge to which is being pled
guilty to and its elements. Thus, for
a plea to be knowing and voluntary,
the defendant must also be informed
of the elements of the offense either
at the plea hearing or on some prior
occasion, and he must understand
them.
The extent to which the
elements must be explained varies
with the circumstances, but at the
very least, due process required that
the defendant receives a description
of the critical elements of the
charged offense, such as the element
defining the requisite intent.
The accused should also
understand how his conduct satisfies

the elements of the charge, and this
entails that the accused have
sufficient background information
about the facts of his case to make an
informed decision about the case
against him.
The District Court, in
Hogarth's case, concluded that the
records of his plea proceedings were
devoid of evidence showing that he
was informed of ~he causation
element of the crime with which he
was charged.
was
Hogarth's
petition
granted and the District Court
ordered the trial court to discharge
him from custody unless: (a) the
State of Florida allowed Hogarth to
withdraw his guilty plea; and (b), if
he withdrew his plea, a trial should
be commenced within sixty days
from the date of withdrawal of guilty
pleas. -as

FLORIDA SUPREME COURT
Amendments to Florida Rule Of
Criminal Procedure 3.853(d)(l)(A)
(postconviction DNA Testing), 29
Fla.L. Weekly S482 (Fla. 9/15/04)
The Florida Bar Criminal
Procedure Rules Committee filed an
emergency petition to amend Florida
Rule of Criminal Procedure 3.853,
Motion for Postconviction DNA
Testing, namely the time limitation at
3.853(d)( I)(A).
On May 20, 2004, Governor
Jeb Bush signed into law legislation
that extended the DNA testing
deadline set forth in section 925.11,
Florida Statues.
After hearing comments
presented at an oral argument, the
Florida Supreme Court amended the
rule to extend the deadline from
October 1,2003, to October I, 2005.
The amount of time to petition for
postsentencing DNA testing was
changed from two years to four years
for a defendant who is not subject to
the October 1, 2005 deadline making
the rule consistent with section
925.11, Florida Statues.

It was ruled that the
amendments would become effective
immediately. -as
Franklin v. State, 29 Fla.L.Weekly
S538 (Fla. 9/30/04)
This case was before the
Florida Supreme Court to answer the
question of whether Chapter 99-188,
Laws of Florida, violates Article 111,
section 6 of the Florida Constitution.
Chapter 99-188, Laws of
Florida (the Act), was designated by
the Legislature as the "Three Strike
Violent Felony Offender Act"
However; only two of the Act's
twelve substantive sections relate
specifically to the "Three Strike"
.violent felony provisions.
The
controversy that was between the
Third
and
Fourth
District's
conclusions and that of the Second
District mainly involved sections II
and 13 of the Act.
In Taylor v. State the Second
District concluded that the Act was
entirely unconstitutional because
sections 11 and 13 violated the single
subject clause. In brief, it opined
that the Act in whole, along with
what is in its lengthy title, reveals the
subject to be of sentencing.
However, section 13 amended the
substantive. definition of conveyance
in the burglary statute to include a
railroad vehicle which the Second
District determined was not a
sentencing provision. As to section
II, the Second District pointed out
that
it _concerns
a . purely
administrative subject that bears even
less relationship than section 13 does
to the Act's other provisions and it
impermissibly combines civil and
criminal subjects in violation of the
single subject rule.
In Franklin's case the Third
District ruled (contrary to the Second
DCA) that the Act does not violate
the single subject rule. It focused on
the purpose of the Act rather than
specifically defining the single
subject. It noted that section II is
reasonably related to the Act's
purpose because it ensures the
removal of felons from the country
9

Florida Prison Legal Perspectives
a serious crime against a person
after they have served their
inside a railroad vehicle (to wit, a
sentences. As to section 13, the
locomotive)
will
be
punished
Third District observed as in relation
to the Act's purpose, it expands on
accordingly.
Thus, the Supreme
the definition of the offenses
Court held that there is a proper
included in the Habitual Offender
connection to sentencing in that
section 13 makes effective one of the
Act.
More
recently,
in
purposes included within the subject
- imposing harsher sentences on
Hernande=-Molina v. State, the
violent offenders.
The Supreme
Fourth District reached the same
Court further considered that the
conclusions as found in Franklin.
The single subject clause' purpose of the Act is to protect the
public from serious and repeat
contains three requirements. First,
violent offenders, a reasonable
each law shall embrace only one
explanation exists for including
subject.
Second, the law may
section 13 within an Act whose
include any matter that is properly
subjd:t is sentencing.
connected with the subject.
The
In its final conclusion for the
third requirement, related to the first,
summarized reasons above, the
is that the subject shall be
Florida Supreme Court held that
expressed in the title.
After a lengthy single subject
Chapter 99-188 does not violate the
single subject clause of Article III,
rule analysis, the Florida Supreme
Court turned to the controverted
Section 6 of the Florida Constitution.
The Third and the Fourth Districts'
issue of whether sections II and 13
are properly connected to sentencing.
decisions were approved and the
Second District's was disapproved..
The test it utilized is whether there is
a natural or logical cOMection to
sentencing, or whether a reasonable
Banks v. State, 29 Fla.L. Weekly
explanation exists for how these . S579 (Fla. 9/14/04)
provisions are either necessary to
In answer to two certified
questions of great public importance,
sentencing or tend to make effective
or promote the purposes of the
involving the unconstitutional 1995
guidelines and agreements made in
sentencing legislation.
In section II the Supreme
reliance on the validity of those
guidelines, the Florida Supreme
Court concluded that there is a
Court ruled as follows, in brief.
natural and logical and thus proper
A defendant who was
connection between the requirements
sentenced to the low end of the
of it .that sentences of non-citizen
unconstitutional 1995 guidelines is
offenders be provided to INS and the
not entitled to be resentenced where
Act's SUbject of sentencing, in that
the sentence was imposed pursuant
section II is a post-sentencing
to a negotiated term of years and not
measure.
pursuant to the guidelines, and where
In section 13 the Supreme
the
sentence received could have
Court concluded in agreement with
been imposed under the 1994
the Third and Fourth Districts. The
guidelines. A defendant is precluded
proper cOMection between the
from challenging his plea agreement
expanded definition of burglary and
on the ground that he relied. on the
sentencing is found in the fact that
validity of the 1995 guidelines in
armed burglary is one of the
deciding to enter his plea where the
qualifying offenses for a harsher
sentence imposed pursuant to the
sentence in the Act. In broadening
plea agreement could have been
the definition of conveyance in
imposed under the 1994 guidelines
section 810.11, Florida Statues,
without a departure. -as
which previously encompassed a
"railroad car" but not a "railroad
vehicle," the Legislature ensured that
10

DISTRICT
APPEALS

COURT

OF

David v. Hershel, 29 Fla.L.Weekly
DI894 (lll DCA 8/18/04)
This case revolves around
the intent of the Florida Legislature
in their adoption of Fla. Statutes
section 947.1405, the Conditionai
Release Program Act (CRPA), and
.whether in the adoption of this
supervised program scheme there
was an intent to allow offenders to be
subjected to the conditions included
within the CRPA while the offender
is civily committed.
Relying on its prior opinion
in Bolden v. Fla. Dept. of
Corrections, the First District Court
of Appeal ()sI DCA) ruled that there
are no restrictions found in the
CRPA or the Jimmy Ryce Act that
prohibit simultaneous compliance. as.

Pere= v. State, 29 Fla.L.Weekly
D 1919 (2d DCA 8/20/04)
Ramon Perez, IIJ, appealed a
trial court's order that revoked his
illegally extended probation and
sentenced him to seven years prison.
On November 7, 2000, an
order from the trial court was made
but not signed until February 22,
2001, to extend Perez's probation
period by one year because he failed
to' report to the probation office as
instructed between 4 p.m. and 5 p.m.
on a certain date..
On the certain date Perez
was to report his work supervisor
asked him to stay late to clean out his
work truck.
While Perez did as
instructed he noted the time, 4:30
p.m., and called his probation officer
explaining that he would be running
late due to his work.
Although Perez called and
reported by 5:20 p.rn. his probation
officer filed a violation on him for
failing to report on time. The trial
court extended Perez's probation.
Later, Perez violated again and the
trial court sentenced him to seven
years prison, and Perez appealed.

Florida Prison Legal Perspectives
On appeal, the Second
District Court of Appeal (2d DCA)
found that the lower court failed to
determine in their first order
extending Perez's probation period
whether the violation of failure to
report on time was willful and
substantial and supported by the
greater weight of evidence, or stated
differently, whether Perez made
reasonable efforts to comply with the
terms and conditions of his
probation.
Because of ihelower court's
failure, the 2d DCA ruled that
Perez's
probation period was
improperly modified when the lower
court extended the period one more
year. . Consequently, absent that
added year, the trial court lacked
jurisdiction to revoke Perez's
probation and sentence him to prison
for thesecond alleged violation.
The 2d DCA reversed the
trial court's orders, remanded the
case back for the lower court to
vacate itS order extending Perez's
probation and to vacate its order
revoking his probation and the
resulting judgment and sentence. -as
Dozier v,. State, 29 Fla.L.Weekly
01948 (3d DCA 8/25/04)
Wayne Dozier pled guilty. to
his charges in exchange for an agreed
upon 8 year prison term, a 5 ·year
downward departure sentence, and
he appealed.
On
appeal~
Dozier's
argument was· based on an incorrect
reasoning that once the' state agreed
to a downward departure the judge
can depart further downward· at his
discretion. The Third District Court
of Appeal found that since Dozier's
issue had not been presented to the
trial court, nor was it the subject of a
reservation of the right to appeal, nor
was the claim brought to the
attention of the trial court by motion
after sentencing or during appeal,
Dozier's sentence was affirmed.

[Note: In Dozier's appellate case
Judge J. Cope concurred with a

lengthy opinion pointing .out what
Dozier was misunderstanding.
In brief, Cope's opinion
outlined that 'when there is an
agreement between the state and
defendant for a specified sentence
below the guidelines and the judge
approves the downward departure,
the judge is bound by the specified
sentence. If the judge disapproves of
a downward departure sentence, then
the defendant should be allowed to
withdraw his plea.
However, in
Dozier's case there was a specified
sentence and the judge could not go
below that even if he wanted to.
Now, if there had been an
agreement between the state and
defendant that a downward departure
sentence was appropriate with no
specific length of time included, then
Dozier would have been correct in
that the judge would have had the
discretion' of any length of time
below the guidelines.
'
Judge Cope's opinion relied
mostly on the analysis found in State
v. Hale, 682 So.2d 613 (Fla. 2d DCA
1996)] -as.
Davidson
v..
Crosby,
29
Fla.L.Weekly 02006 (lsi DCA
8/31/04)
David A. Davidson's case
revisited the question of which court
has jurisdiction of a prisoner
challenging a disciplinary action that
was imposed by the Florida'
Department of Corrections (DOC).
In challenging a DOC
disciplinary action Davidson filed his
petition for writ of mandamus in the
Second Judicial Circuit Court for
Leon County, Florida (Second
Circuit).
The Second Circuit
dismissed the petition without
prejudice, ruling that it did not have
jurisdiction to hear the case and
transferred the petition to Davidson's
sentencing court. In turn, Davidson
appealed .the dismissal to the First
District Court of Appeals (First
District).
The First District held, in
reliance on Burgess v. Crosby, that
the Second Circuit is the correct

venue for claims such as Davidson's.
The Second Circuit opined that the
matter was still in doubt after
Burgess in light of certain language
held in Schmidt v. Crusoe.
In reply, the appellate court
explained that in Burgess it showed
the Supreme Court's holding in
Schmidt was limited to the question
of the applicability of section 57.085,
Florida Statutes, in determining a
compl~intant's
indigency
in
Davidson's
type
of
case.
Furthermore, the Supreme Court
denied the rehearing in Schmidt and,
despite the certification of a question
of great public ·importance that was
made in Burgess' case.. no further
review was sought by either of the
parties to that decision.
In conclusion, the First
District ruled that contrary· to the
Second Circuit's disposition in
Davidson's case, the matter is not in
doubt, but is controlled by the
decision in Burgess.
Davidson's
case
was

reversed and remanded with
directions for the Second Circuit
to take jurisdiction over the
petition and proceed to a
disposition on the merits. -as
[Note: Also see Eastman v. State, 29
Fla.L.Weekly 02204 (Fla. 2d DCA
10/1/04). where
Armando R.
Eastman's case mirrored
Davidson's except Eastman failed to
pursue the Second Circuit's defective
order in the First District appellate
court. Instead, Eastman refiled his
petition in his sentencing court, the
Thirteen Judicial Circuit Court
(Thirteenth Circuit).
Eastman's
petition was denied as time-barred.
He appealed that decision to the'
Second District Court of Appeals
(Second District) where it ruled that
its jurisdiction was limited to the
.Thirteenth Circuit's. decision.
which it affirmed.
However, the
Second District opined, even though
it was not a matter before them,
Eastman could possibly fashion a
sufficient motion pursuant to Florida
Rule of Civil Procedure 1.540 that

Florida Prison Legal Perspedives
would persuade the Second Circuit to
vacate its erroneous order of
dismissal and entertain the petition
on its merits..
At any. rate, due to
Eastman's failure to seek review of a
circuit court's order in its proper
district, he found himself timebarred. J-as

Reed v. State, Fla.L.)Veekly 02001
(3d DCA 9/1104)
Royce M. Reed filed a
motion to correct illegal sentence
complaining that it ·was improper to
use a 1989 prior charge to habitualize
him on his 1991 charges since he had
never been sentenced for the 1989
charge. Reed argued that although.
he had been adjudicated guilty of the
1989 offense, the case had not been
finalized since the sentencing for it
was still' pending .when he was
convicted and sentenced for the 1991
offepses..
Reed was adjudicated guilty
of the 1989 case, but because he was
a juvenile at the time, the court
placed him in a juvenile detention
facility where Reed escaped. While
a fugitive, Reed committed several
. other crimes. in 1991. Reed was
caught, .arrested, convicted, and
sentenced as a habitual violent felony
offender for the 1991 offenses using
the \ 989 felony, which Reed claimed
was improper. After the conviction
and sentencing on the 1991 cases,
Reed was finally sentenced for his
1989 case.
The lower court denied
Reed's motion to correct illegal
sentence. Reed appealed and the
denial was' affinned by the Third
District Court or Appeal (3d DCA).
Reed then filed for a rehearing and
clarification. The Third DCA denied
the rehearing, but clarified its prior
opinion.
In their clarification the
DCA relied on McCrae v. State. The
DCA explained that for purposes of
the habitual offender statue, the tenn
is
equivalent
to
"conviction"
In McCrae the
adjudication.
Supreme Court ruled that a defendant
12

was "convicted" within the meaning
of the [habitual] statue if he had
entered a guilty plea to a qualifYing
felony, but had not yet been
sentenced.
[Note: Third District Court Judge J.
C,ope concurred with the clarification
but pointed out that in 1993· the
Legislature amended the habitual
offender statue. The analysis would
be ditTerent for offenses committed
on or, after the effective date of the
1993 Act. See: Rhodes v. State, 704
So.2d 1080, 1083 (Fla. 1Sf 'DCA
1997); Ch. 93-406, subsection 2, 44,
Laws of Florida; and section
775.084(5), Florida Statues (1993).]
-as

v.

Wfishington
Fla.L.Weekly

9/1104)

02011

State,
(4th

sentence was reversed and remanded
to impose a guidelines sentence.

Davis v. State, 29 Fla.L.Weekly
02033 (3d DCA 9/9/04)
Meltin A. Davis' case
pointed out a misunderstanding
otTenders have in qualifying as a
habitual' violent felony offender
(HVFO).
As the Third District Court
of Appeal explained, it is not the
current offense that must be one that
is
enumerated
in
section
775.084(lXb)1., Fla.' Statute, to
qualifY as a HVFO. An offender
qualifies jf he has previously been
convicted of a felony or an attempt
or conspiracy to commit a felony
enumerated in the statue. -as

29
DCA

.

Otis Washington. appealed
the denial of a motion to correct
sentencing error and argued 3 issues.
The Fourth District Court of Appeal
(DCA) addressed one regarding the
sentences.
The
issue
addressed
encompasses
Washington
being
served a ,"shotgun" notice of intent to
seek a habitual felony sentence.
which included all sentencing
schemes under Florida Statutes
section 775.084.
Washington
contended that he had no notice of
the precise sentencing enhancement
being sought by the state.
The DCA relied on State v.
Bell, 747 So.2d 1028 (Fla. 3d DCA
1999), and ruled that the notice did
not give Washington any' useful
notice
of
what
particular
classification, and hence penalty, he
may be subjected to upon conviction.
During Bell's case there
were 3 ditTerent classifications under
the habitual statue, currently it
encompasses
four
sentencing
schemes.
To serve a general
"shotgun" notice that does not depict
the specific sentencing scheme under
the statute is tantamount to filing no
notice of intent at all. Washington's

Enriquez v. State, 29 Fla.L.Weekly
02041 (3d DCA 9/9/04)
The Third District Court of
Appeal cited to Alvarez v. State,. in
this case to reemphasize the Florida
Supreme Court's decision that a life
sentence is not impermissible as
indefinite imprisonment for purposes
.of, Article I, Section-17 ofthe Florida
Cons.titution. -as .

Roundtree v. State, 29 Fla.L.Weekly
02029 (2d DCA 9/8/04)
Randy Roundtree challenged
the denial of his motion for
postconviction relief filed pursuant to
Fla. Rule of Criminal Procedure
3.850.
One of the grounds in
Roundtree's motion in particular
dealt with a prima facie claim of
newly discovered evidence.
Roundtree alleged that his
co-defendant had just recently
admitted that he had not testified on
Roundtree's behalf because he had
been coerced by the State.
Roundtree further claimed in his
motion that the testimony of his c0defendant would have proven that he
had no knowledge that a robbery
would take place.
He further
claimed that this con-defendanl's.
testimony would have refuted the
State's argument that Roundtree

Florida Prison Legal Perspectives

acted "'as:' it

lookout' during the
robbery.
The lower court denied
Roundtree's
newly
discovered
evidence because he failed to attach
an affidavit .The Second District
Court of Appeal ruled that a motion
under rule 3.850 does not require the
filing of supporting affidavits; it only
requires a brief statement of facts in
support of the motion.
Roundtree's
case
was
reversed and remanded' for the lower
court to hold an evidentiary hearing.

, -as

Miller v. State, 29 Fla.L.Weekly
02094 (Sib DCA 9/17/04)
This case revisited and
followed the issue found in
Singletary v. Marchette, 69J So.2d
65 (Fla. 3d DCA 1997), where the
court affirmed an order" allowing
.additional time credited to a
defendant's sentence that he would
or could have. received through gain
time in'state prison:
Although
it
is
well
esta~lished that courts do' not have
the authority to order the Department
of Corrections (DOC) to award or
credit a defendant prisoner with
additional gain time credits, a court
does have the authority and
, jurisdiction to effect a fair sentence
by awarding credit for time served.
Due
to
circumstances
beyond a defendant's control, e.g.,
time served in a county jail awaiting
of
post-judgment
disposition
motions, the courts can order a
of the sentence,
computation
crediting it with the amount of gain
time he would have received had he
been at a DOC facility.
Thus
insuring the' defendant has been
accorded due process where the right
to accrue gain time has been denied
through no fault of his own. -as
,
Pritchett v. State, 29 Fla.L.Weekly
02202 92d DCA 9/29/04)
In this case, before the trial
court ruled on Drake Pritchett motion
for postconviction relief, Pritchett
amended his motion with another

claim. Upon denying the amended
claim the lower court ruled that
Pritchett failed to allege a reason or
his
general
reasons,
beyond
statement that he just discovered the
grounds for the new claim, for his
failure to include these claims in his
original motion. As such, the trial
court concluded that Pritchett had
failed' to demonstrate good cause to
amend as required by McConn v.
State.
On appeal, the Second
District Court of Appeal .found that
in Gaskin v. State, 737 So.2d 509
(Fla. 1999), receded from on other
grounds, Nelson v. State, 875 So.2d
579 (Fla. 2094), the Florida Supreme
Court impliedly overruled McConn.
In Gaskin, where the appellant had
filed an amended motion before the
trial court ruled on the original
motion and before the ·two year time
limit had expired, the Supreme Court
determined that when both the
original and amended 3.850 motions
were filed within the statutory twoyear time limitation it would be error,
for the trial c,ourt not to consider the
merits of the new allegations.
Because Pritchett filed his
amended claim within the two-year
period, as well as -before the trial
court ruled on his original motion,
the appellate court reversed the
denial of his motion· to amend with
instructions for the trial court to
consider the additional claim. -as

Savery v. State, 29 Fla.L.Weekly
,
D2199 (5 th DCA JO/1/04)
Craig A. Savery had sought
his secondary (app~l) review with
the Secretary of the Department of
Corrections of an administrative
punishment that was imposed on him
In an order dated March 24,
2004, but was not filed' until March
29, 2004, the Secretary concluded
that his secondary request for review
was untimely and refused to consider
Savery's administrative appeal.
On April 2~ 2004, Savery
filed a petition with the circuit court
for writ of mandamus that sought to
compel the Secretary of DOC to

exercise his jurisdiction and consider
his appeal on the merits. The circuit
court denied Savery's petition as
untimely, concluding that it was filed
more than thirty days after
disposition of the disciplinary
proceedings.
Savery then sought
certiorari review of the circuit court's
order in the Fifth District Court of
Appeal.
On review, the appellate
court stated that pursuant to Florida
of Appellate
Procedure
Rule
9.100(c)(4), a petition challenging a
DOC order entered in a prisoner
disciplinary proceeding must be filed
within thirty days of r~ndition of that
order.
Rule 9.020(h) defines
"rendition" (of an order) as an order
rendered when a signed, writt~
order is filed with the clerk of the
lower tribunal.
Rule 9.020(b)
defines "clerk" as the person or
official specifically designated as
such by the court or lower tribunal or
if no person or official has been
specifically so designated, the
official or agent who most closely
resembles a clerk in the functions
performed.
The DOC conceded that the
Secretary's order da,ted March 24,
2004 was not rendered as defined by
the rule until March 29, 2004. As
such; Saver's petition filed in the
circuit court was timely filed on
April 27, 2004. Thus, the appellate
court quashed the circuit court's
order and remanded Saver's case fur
further proceedings. -as

Gill v. Crosby, 29 Fla.L.Weekly
D2208 (1st DCA 10/1/04)
Marvin. C. Gill petitioned the
First District Court of Appeal (l st
DCA) for a writ.of certiorari to
review the denial of his petition for
writ of mandamus that challenged
.the imposition of a disciplinary
sanction by the Fla. Dept. of
Corrections.
The
disciplinary
report
charged Gill with the infraction of
disobeying regulations. The report
described a document discovered by
an inspector containing minutes of a
13

Florida Prison Legal Perspectives
corporate
stockholder
meeting
supposedly conducted by Gill, the
corporation's majority stockholder,
at the correctionil1 institution. At his
D.R. hearing. the disciplinary team
convicted Gill of violating the
FOOC's rules which prohibits an
inmate from conducting business
through the use of any avenue· of
communication during his or her
incarceration.
The 1st DCA agreed with
Gill's argument that the D.R. served
did not comply with the 33-601 rule,
which requires a description of the
violation, including date, time, and
place, along with the specific rules
violated.
Gill's petition was granted
and the 1st DCA remanded his case
back to the lower court with
directions to grant his petition writ of
mandamus. -as

Harrison v. State, 29 Fla.L.Weekly
02206 (2d DCA 10/1104)
Johnny J. Harrison, Jr.,
appealed the denial of his Rule
3.800(a) motion where he claimed it
was error for him to be sentenced as
a habitual offender for his offenses
that were committed June 4, 1996.
,
Harrison was convicted, after
he pled guilty to an agreement, of.
trafficking in cocaine, 28 grams or
more but less than 200 grams, and
~ession of cocaine with the intent
to deliver. He alleged that neither
offense was subject to habitual
offender sentencing under the
guidelines in effect at the time.
The Second District Court of
Appeal found that Harrison was
correct in his allegation and that he
had presented a facially sufficient
motion for relief.
Section 893. I35(1)(b)(I)(a),
Florida Statutes (1995), provides that
if the quantity of the cocaine
involved is 28 grams or more but less
than 200 grams, the defendant shall
be sentenced pursuant to the
sentencing guidelines., Furthermore,
. pursuant to section 775.084(l}(a)(3),
Florida Statutes (1995), a defendant
cannot be sentenced as a habitual
14

offender for violating section 893.13
relating to the purchase or the
possession of a controlled substance.
This includes the offense of
possession of cocaine with intent to
sell of deliver. (See: Virgil v. State,
29 Fla.L.Weekly 02060 (Fla. 2d
DCA 9/10/04)).
The appellate court stressed
that whether Harrison entered a
negotiated plea or not he must be
resentenced to the guidelines or be
allowed to withdraw from the plea
agreement and proceed to trial.
As such, Harrison's sentence
was reversed and remanded for
further proceedings. -as

McBride v. State, 29 Fla.L.Weekly
02235 (4th DCA 10/6/04)
Charles McBride appealed
the denial of his rule 3.800(a) motion
to correct illegal sentence where he
challenged his habitual offender
sentence under the United States
Supreme Court's decision in Blakely
v. Washington.
As explained many times,
the Fourth District Court of Appeals
held that in Blakely the Supreme
Court revisited Apprendi v. New
Jersey where it was specifically held
that "other than the fact of a prior
conviction, any fact that increases the
penalty for a crime must be
submitted to a jury, and proved
beyond
a
reasonable
doubt."
Habitual Offender enhancements
deal with the fact of prior
convictions.
The Fourth District further
cited In re Dean, 375 F.3d 1287,
1290 (lith Cir. 2004), where it was
recently held, "RegardleSs of
whether Blakely established a 'new
rule of constitutional law' ...the
Supreme Court has .not expressly
declared Blakely to be retroactive to
cases on collateral review." Without
an express declaration by the
Supreme Court; Blakely cannot be
applied retroactively.
. Regardihg McBride's case,
the Fourth District affirmed the trial
court's denial.

Rodriguez v. State, 29 Fla.L.Weekly
02238 (2d DCA 10/6/04)
Basically, in this case the
Second District Court of Appeals
expressed that the Prison Release
Reoffender Act was not intended by
the Legislature to permit a court to
enhance the individual sentences
from a single criminal episode and
then furJ1Jer increase the total penalty
by ordering that the sentences run
consecutively. -as
Wells v. Harris, 29 Fla.L.Weekly
02287 (4th DCA 10/13/04)
Thomas Perry Wells filed a
writ of mandamus and ·declaratory
judgment in the trial court against
James Harris, Warden for Martain
Correctional Institution where he was
serving his sentence, and one of its
employees, challenging disciplinary
action against him and seeking
declaratory judgment that the rule
under .which he was disciplined is
unconstitutional.
The trial court
denied the petition as to the
disciplinary actiOn and dismissed the
Wells sought
declaratory action.
certiorari review in the Fourth
District Court of Appeals ~Fourth
District) where it treated his petition
as a notice ofappeal.
Smith
v.
Florida
In
Department of Corrections, 752
So.2d 59 (Fla. 1st DCA 2000), it was
held that where the petition stated a
cause of action for declaratory
judgment, it was error for the court to
make a final determination as to the
disciplinary action before hearing the
prisoner's challenge to the validity of
the rule under which he was
disciplined.
The Fourth District ruled that
Smith applied to Wells' case ·and
reversed the order of the trial court
remanded
for
further
and
proCeedings
consistent
with
their
••
I
0plmon. -as .0

Florida Prison Legal Perspectives

Florida prisoners' Legal Aid Organization Inc.

\

BECOME A MEMBER

YES! 1wish to become a member ofFlorida
Prisoners' Legal Aid Organimion, Inc.
3, Your N. .e ad Address (pLEASE PRINT)

1. Please Cheek -/. ODe:

o

Membership Renewal

o

New Membership

....:DC#

--:~

_

Namo
ApncylLibrarylIDstitution 10rrJ

Z. Select -/ Category

o
a

SIS famUy/Advocakllndividuai

S9 Prisoner

Address
City

State

Zip

. Smail Address and lor P~no Number
.
" Plcuolll1b Dl1 cbccb or IDOIIC)' orden payable to: Florida Prlsoncn' LcpI AId Orpnlzadcm, IDe. Please comp1de the IboYo fimn ad SCIId it
wI1b the iad1c:IIccl membcnbIp dllCS or IIlbscrip1ioD IIIDOlIllt to: Florli/iI PriltJMn' IAgaJ Aid OrpnImtIfNllnt:.. P.O. Ba 660-381. C1llll1lOtll. FL
, 3116& FCl1' llImily mcmbcn or loved ones of Florida prisonen who are IIIlAble to oft'ord the basic mcmbcrsblp cI1Ies, lIDy comribU1lon II acccptIblc
for memllenbip. New, UIlUICd , US poIlIp SUIIIlpS lItO acccp1lIble liom prisoncn for manberahlp dua. Membcnbfps DIll one)'Clll'.
[] $60 Gov't AgenciesILibraries/OrpJete.

."
~

fi'
;:;.
k-

S'~:o1':"'"'

.ACheckered ·Pa:s:f

15

I

,

...~

~/'.<-

PRISON LEGAL NEWS

- 'SUBMISS,ON QrM~TERIAL TO
FPLP

I.

BecaUSe or the large volume of mail bcJng
received, financial considt:ndioM. and the

inability 10 provide individual
assistance.
memberS shculd not send copies of IcpJ
documents of Fending or potential CllSeS to
FPLP without having first conlBCtc:d the Slatr
and ieeeivinl directions to send $41me. Neither
FPLP, nor its
an: responsible for any
unsolicited nwerinl sent
Members arc rcquc:slCd to continue scmling
news information. newspaper clippings (please
inehldc name of p1IpCf and cbtc).
memoranctwns. photoc:opies of final dccisicms
in unpublished cases. and potentiaJ tVtidcS for
publication. Please send only copies of such
material that do not have to be'rctumcd. FPLP
depends on YOU. iss readers and members to
keep inrormed. Thank )1JU for )'OW'
c:oopcnUion and participa!ion in hdping to get
the MWS out. Your efforts an: greatly
apprecill1cd.

starr.

l'rlM1n 1AgaI NftJI is • 36 IMP IIIGIdIy aurp1iJie ~ JJa
bCCZ' IJllhliWd ifr= 1990. h is afited b)' w~ JUte
priscae:t 'Pad Wrisfd. Each issue is pxbd wiIh smamaries
=d mraIysis ofnczm cocrt ckcisicms hm aoand lbc ~
deaUq·with prisolla' rfFb mel wriftm 60m • p1SOIICf
pcrrpcctnc. The masui= oftca czrrieI ~ ~
dm1lCYS Pv=8 ~ IitipsimI advise. ~ ~ us
cadi iaue ate news atfda cIcatirt3 with ~
atnraBIe ad "tivima &am Ibo U.S.a U'O\Uld tIIc world.
~JllbsQiptioa rates ate SIB fer priscam. l(you ~'t
Iffwd to send S18 at cmcc. SaId at Ieut S9 llnd PLN wiI1
prame 11= issues at SI.SO cada for • sm mondI sWscnpticn.
New mlll!IlISN postrgIl: sr=zps or anbosscd envelopes may
be used lls ps}'mCIIt.
For ~ ~ dre Jady mbsaipUaa
me is S2S, lnstitIaioaal or profcssiaDaJ (ftttDnICYI, IibrIrics.
~ ascac:ieI. mjpJlizaticfts) ~ niCS arc
S60 II )'elf. A sample copy of PLN is av.ilable fer SI. To
subscribe to PLN. camact:
Prlsan lAgrJ Hnn
1.100 NW8tJdt Sl1uI
PAIBUS .
Sct:ttk. WA 98117

If SO, please complete the below information and mail it to FPLP so
that the malliag list can be updated:

NEW ADDRESS (pLEASE PRINT CLEARLY)

Name

Address
City

State

see Pl.Ns Vftbsit8 at

1t1tp: ~www.prlstlnIega/Imtn.Mg

~Mall to: FPLP. P.O.

Zip

Box 660-387, Chuluota, FL32766

EmalIPlNat
lIV't:bl1ltlWt@pfUunJegr;zfltflW.l.org

VOLUME 10. ISSUE 6

NOVIDEC 2004

NON-PROFIT

Florida Prison Logal
ParspoctlvGS

U.S. POSTAGE
PO Box 660-S87

PAID
OVIEDO,FL
PERMIT NO. 65,

Chuluota FI 32766

,

.

.:.:
to'-

':110

----~--"
-,

-