FLORIDA PRISON LEGAL

ers ectives
ISSN# 1091-8094

VOLUME 11 ISSUES 5&6

deputy to prevent any trouble while she moved her stuff
out of her boyfriend's house in Keystone Heights. After
she had removed all her property she invited Deputy
Dennis Urban into the house to show him something.
Taking the deputy to a bedroom that she had
shared with Benjamin Zoltowski, a prison guard at Florida
State Prison in Raiford, she opened the top drawer of a
dresser and pointed inside. The drawer held a wad of
folded up money and a cardboard box full of gallon-sized
freezer bags filled with pink and blue pills, according to
Urban's report.
Urban· called in Clay County sheriff's Detective
V.A. Hall who went to the county courthouse to get a
search warrant while other deputies watched the house.
With the warrant, deputies searched the house
where they found almost 1,800 steroid tablets and ampules
of injectable steroids, in addition to a ledger listing sales
of steroids between April and June of 2003. The ledger
also led investigators to other state prison guards who
worked in several North Florida prisons.
As of October 2005. federal investigators had
charged five fonner Florida prison guards with
distributing steroids. The story behind the steroids is
emerging in federal court records in Jacksonville.
According the those records, former FDOC prison
guard Clayton Manning was, working as a personal
bodyguard in Egypt in 2003 when he began mailing
steroids back to friends and relatives in North Florida.
Manning made more than $73,000 in profits on the drug
importation operation between 2002 and 2004. So far

State and FedemlllfnvesaipiolmS
oflFOOC Widenmg
by Bob Posey
hat started out as an investigation into the
W
importation, sell and distribution of illegal steroids
by a few current and fonner Florida prison guards has
escalated into wide-ranging investigations into corruption
throughout the state prison system by state and federal
authorities.
The steroid investigation was sparked in March
2003 when unusual packages sent from Egypt were
intercepted at post offices in Raiford, Starke, Keystone
Heights and Macclenny, ,all small towns located in rural
North Florida and close to several of the state's major
prisons.
The packages, addressed to state prison guards,
were opened by u.S. customs and immigration officers
who found inside quantities of anabolic steroids. It is
illegal to import, sell or distribute such steroids in the u.S.
For a while investigators were stymied. Those guards to
whom the packages were addressed denied knowledge'of
the contents. and false return addresses lead back to no
.one. Then on October 27, 2003, a break came in the
investigation.
That was the day Ashley Faye Mahoney, 19,
called the Clay County Sheriff's Office to send out a.
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Florid~

Prison ,Legal- Perspectives
Manning, ZoltowsJd and two other former prison·guards
have entered guilty pleas as part of a agreement to
cooperate with federal investigators and testify against
others. Manning and, Zoltowski have already been
sentenced to 36 months probation. The other two, Oscar
Shipley and Michael ~hambliss, are scheduled for
sentencing in October and November. ' The fifth former
guard charged, Marcus Hodges, goes to trial in November.
Three other prison guards and a former guard
hav,e been named as "unindicted co-co.J1Spirators." But the
scandal has not ended there.
Corrupdon Is Contagious
Steroid use among corrections and law
enforcement officers is becomin~ an increasing problem
around the country. Similar to athletes using steroids to
improve their performance, even.though they are illegal,
many prison guards are turning to steroids' to beef up their
bodies out of fear of the prison populations they must
work with. Experts, however., are increasingly warning'
about the psychological as well as physical side effects of
steroid use.
Experts say that prolonged high-dose use of
steroids can result in what's being called "roid rage," a
psychological reaction to steroids that can lead to suicide,
extreme violence against others, and destruction of
property.
Yet. despite national reports of problems with
steroids in law enforcement and corrections, Florida state
prison officials never even conducted an internal
investigation of the guards now caught up in the federal
investigation. When contacted by the St. Petersburg
Times, FDOC Secretary James V. Crosby Jr. refused to
discuss the problem within the state prison system or why
no internal investigation was conducted. But then Crosby
and other top prison officials also appear to be targets of
state and federal investigations.
If the Tree is- Rotten, so Will be the Fruit
"It has been a pleasure serving as Region I
director of institutions. I have made many friends over the
years and wish you and the employees of the department
much continued success," is what Allen Clark. 40, director
of 18 North Florida prisons, wrote to Crosby when he
resigned after 16 years with the FOOC and without
explanation on August 30. It didn't take long. however,
for the reasons behind Clark's resignation to start filtering
out. Clark, a close friend and crony of Crosby, had
become the target of a criminal investigation.
Investigating a fight started by Clark in April,
Florida Department of Law Enforcement investigators told
the victim that Clark and other top FOOC officials are part
of a much larger investigation being conducted by a
statewide prosecutor.
The Federal Bureau of Investigation and the
FOLE have both confirmed that they are investigating the

2

Florida Prison Legal Perspectives
FDOC, but have declined to specify what the
investigations concern. Parts of the whole story have been
coming out though.
According to FDLE and Tallahassee Police Dept.
records, Clark instigated a brawl at the April 1 party
hosted by the Florida Council on Crime and Delinquency
(FCCD), the sponsor of a softball tournament for prison
guards and employees. Late in the evening, James
O'Bryan, 38, a former prison guard whose wife still works
for the FCOC with the rank of Major, apparently slipped
in a puddle of beer and vomit and fell, accidentally
knocking down a woman who worked for Clark at the
FDOC regional office. Clark, reportedly, then jumped on .
O'Bryan and began punching him in the face.
Not to be left out of the violence, two other FCOC
employees, Major James Bowen and Colonel Richard
Frye, also jumped on O'Bryan, slugging him in the face
and kicking him repeatedly itt the ribs (as if he was a
cuffed and shackled prisoner).
O'Bryan was carried out of the Tallahassee
National Guard Armory where the party was being held.
He didn't request medical attention.
FOLE investigators learned about the vicious,
unprovoked attack on April 4, and on April 13 they
interviewed O'Bryan, all but be~g him to press
charges, according to a recording of the interview.
O'Bryan refused to press charges, saying he was afraid the
FDOC would retaliate by transferring his wife to another
prison far from where they now live. O'Bryan told
investigators that Clark was allowed to intimidate people
because ofhis close ties to Crosby.
FDLE investigators implied that they knew that.
"Like I said, things go higher than Clark," FOLE
investigator Tim Westveer told O'Bryan. "We've been
working on this for a long time." The investigators
repeatedly told O'Bryan that he should press charges so
Clark could be removed from his position. "We know he
beats people," Westveer said. "We've got to get him out
of the system."
The investigators also asked O'Bryan if Crosby
was at the FCCD party: Crosby had refused to comment .
on the incident, saying only he was at the armory earlier,
but was not present when trouble broke out An FDOC
spokesman said Crosby has had no discussions about
leaving his position as head of the prison system in light
ofthe ongoing investigations.
Crosby was the warden of Florida State Prison in
Starke in 1999 when a gang of prison guards brutally
murdered death row prisoner Frank Valdes. Instead of
being fir:ed after that incident, however, Crosby was
promoted to regional director, then a short while later was
appointed by Gov. Jeb Bush to head the FOOC. Both
Crosby and Clark had campaigned for Bush in both his
runs for governor.
According to reports, Crosby and Clark, looking
lImost like brothers with their shaven heads, were "very

close."
Clark has been investigated for numerous
incidents before while working with the FDOC, but, as
usual in the department, he continued to be promoted until
he reached the S94,000-per-year regional director position.
In 1994, Clark was suspended for 60 days for
using "inappropriate force" on prisoners, an FDOC
euphemism used to whitewash the often brutal beating and
other abuse of prisoners. In 1997, Clark was chastised for
discussing union issues on the job.
In 1999, Clark was charged with having a kitchen
from Florida· State Prison installed in his state-owned
home and using prisoners to .do the work without
approval, then lying about it. He was· also charged with
"inappropriate" use ofemployee trust funds.
No action was taken, however, and in 2000
Crosby promoted ,Clark. Then three weeks after Crosby
was named· head of FCOC in 2003, he again promoted
Clark to Warden at New River .Correctional Institution.
One year later, Crosby promoted Clark to regional
director, overseeing all prisons in the state's Panhandle
region.
There is speculation that Clark may be being
investigated in the steroid investigation also. Some of the
guards charged in that investigation also worked at New
River CI, when Clark was the warden there.
State investigators recently seized a· Jeep and
several trailers owned by Clark after serving a search
warrant in coMection with an investigation into the
alleged misuse of prison funds and property. Search
warrants were also served. at prisons in several North
Florida counties where Clark and other FDOC employees
kept vehicles and other items allegedly made by prisoners.
FOLE .investigators told witnesses that a statewide grand
jury is investigating Clark and others because of crimes
that have occurred in several North Florida counties
involving FDOC persoMel.
Some of the most recent alleptions against Clark
(again) involve the misuse of employee trust funds that
raises money from vending machines and using prisoners
as shoeshine boys and to wash personal cars.
Amazingly; considering Clark is a high school
dropout who only has a OED and with his past record, in
2001 Oov. Bush appointed him to serve on the Judicial
Nominating Coinmission that selects judges to serve in
six North Florida counties.
. Several prison employees have been accused or
charged with embezzling recycling money and reportedly
the investigation has expanded to look at using prisoners
to perform personal services for FDOC staff and FDOC
employees stealing stale property.
Former Prisoner Blows Wbtsde
In October it was reve8led that state law
enforcement agents from the FDLE have seized vehicles
and trailers from five other prison administrators and
guards besides what was seized from Clark.

3

Florida Prison Legal Perspectives
Search warrants served in six North Florida
. counties exhibit a new phase in the ongoing investigations
by the PDLE and FBI that has the Corrections Department
and its leader, James Crosby, under intense scrutiny.
"The items that have been seized in coMection
with the search warrants are possible evidence for, use in
court," said FDLE spokesman Tom Berlinger.
In addition to the Jeep seized from Clark, pickup
trucks were seized from Colonel Richard Frye (who
allegedly assisted Clark in beating up O'Bryan at the
FCCD party), who works at Apalachee Correctional
Institution, and from Lamar Griffis, assistant warden at
Santa Rosa Correctional Institution located near
Pensacola.
Frye, 36, 'joined the FDOC 12 years ago and
experienced a meteoric rise through the system, becoming
a, colonel, the highest. ranking correctional officer position
in the FDOC, faster that many guards are promoted to
sergeant. That despite serious questions about his ethics.
In 1997 Ftye was suspended for 30 days for destroying
evidence, giving false testimony and other violations. On
appeal, however, he was cleared and got full back pay for
the 30 days. In Frye's most reCent job evaluation, in July,
his supervisor AI Solomon (who was named by Crosby to
replace Clark as' interim regional director in September)
gave Frye outstanding marks, stating he is· a "loyal and
dedicated employee" and a "proven leader."
Details from the search warrants, obtained as
public records, show investigators were interested in
examining the personal vehicles' parts for repairs that may
have been done using prison labor or state equipment.
At the center of the October revelations is
evidence given by an ex-prisoner who toid investigators
that he was required to build trailers in a prison welding
shop for the personal use of prison guards at Florida State
Prison and New River CI. The ex-prisoner's name is not
being publicly revealed out of fear for his safety.
The ex-prisoner said he' built a' utility trailer for
prison guard Lt. Bobby Ruise who told him he needed it to
transport lawn equipment. The ex-prisoner kept a journal
of the 'work he did and told investigators that he welded
his initials in all the trailers he built for gu8rds.
FDLE agents confirmed that Ruise has a
homemade trailer registered with the state DMV.
However, when Ruise was asked about allegations of his
owning a trailer made with state-owned property he told a
reporter, "I don't know anything about it. I don't even
own one."
Two other search warrants w~ issued in Union
and Bradford counties for similar utility trailers. but the
identities of the FDOC employees served with the
warrants could not be confirmed.
The affidavit says FDLE investigator Travis
Lawson and FBI Special Agent Alexander McDonald
were directed to the ex-prisoner by Theodore Foray, a
former FDOC prison guard, who admitted he had ordered

4

that ex-prisoner to remove FDOC ID numbers from a
fiberglass ladder. The ladder disappeared, the affidavit
states.
Foray, 4S. of Lake Butler and another former
prison guard, Paul Lamar Miller. 32, of Starke. are among
several prison employees accused in June of this year of
conspiring to steal state property and embezzle money
from a prison recycling program. The U.S. Attorney's
Office said the men worked at the Florida State Prison I
New River CI recycling program and sold bales of
crushed aluminum canS and other materials to a company
in Jacksonville.
Defending tbe Indefeasible
As of mid-October eight FDOC officers had been
charged with felonies. and with FOOC Secretary James
Crosby under increasing heat and the target himself of a
statewide grand, jury probe and related federal
investigation, he finally spoke out trying to defend his
leadership of the prison system.
Crosby said the investigation is a quagmire that
could drag on for months and cast a shadow over Florida's
prison system. the third-largest prison system in the
nation.
"I don't know how you get out of that quagmire."
Crosby said. Crosby. declined to discuss matters still
under investigation, but dismissed criticism of himself and
the FooC, much of it on Web sites, as the rantings of a
small group. He pointed to his close alliance with the
Police Benevolent Association, the Florida union for
police and correctional employees, as disproving a
perception spread by critics that he rules with an iron fist
"If we were ruling through fear and intimidation
and that was our modus operandi, do you really believe
the PBA would be out there supporting me like they do."
Crosby asked.
Ron McAndrews, a retired federal and state
warden and critic of Crosby's. said the PBA's support of
Crosby only proves on thing. "Crosby's made some deals
with the PBA.
Instead of fighting the PBA and·
representing the state !IS he's hired to do. he's wheeling
and dealing behind the scenes with the PBA, or they
wouldn't be speaking so highly ofhim," McAndrews said.
McAndrews. who said he. once refused to hire
Allen Clark at Crosby's urging, also said about Crosby,'
"His biggest failure is spreading cronies in key positions."
Crosby praised Clark as a "go-getter." with plenty
of leadership potential. He said his and Clark's friendship
began at Lancaster CI when he was a rookie warden and
Clark was a young prison guard. Clark, when promoted to
warden himself by Crosby, is a devoted softball player. he
had a team called the Blue Wave at New River CI. (See
related article about FooC softball teams in this issue of
FPLP.)
"
Crosby defended the prison culture's seeming
obsession with competitive softball. saying it provides a

Florida Prison Legal Perspectives
sense of community and a way to relieve the stress of long
days "inside the fence," in high security prisons.
surrounded by "hardened criminals."
Crosby, a former Democrat who became a
Republican to campaign for Gov. Jeb Bush during
elections, said his years in the prison bureaucracy did not
prepare him for the politictally-charged Tallahassee
environment, with its cut throat struggle between lobbyists
for lucrative contracts with Florida's prison-industrial
wm~~.
.
"I thought it would be more aboul' running
institutions," Crosby said about his SI24,OOO-a-year job as
head of the prison system. "But it's turned into being
about procurement, politics and policies."
The procurement of services and goods and
awarding wntracts has been a problem for Crosby. He
hasn't had the willpower to resist going to dinners and
social events with vendors and lobbyists eager to influence
him to gain access to some of the $2-billion-a-year FDOC
taxpayer-funded budget. The Legislature and state auditor
general have criticized Crosby's awarding of some big
money contracts. (See related article in this issue of
FPLP.)
On Oct. 17 Crosby held a two-day meeting with
dozens of wardens from around the state at Wakulla CI.
The meeting carne only five days after Gov. Bush
reportedly told Crosby to buck up. show.strong leadership,
and advised him to: "Don't let the 'blanks' let you down."
A spokesman said Crosby told wardens not to be
distracted by a recent series of news articles critical of the
FDOC; "He spoke to the wardens, and let them know
they're appreciated," said FDOC spokesman Robby
Cunningham.
Acwrding to Crosby's appointment calendar,
obtained by the St. Petersburg Times with a public records
request, Crosby met in his office on Apr. 27 with FDLE
inspector Rich Lober. Asked if he could say what that
meeting was about, Crosby said "No."
[Sources: St. Petersburg Times, The Gainesville Sun, The
Tallahassee Democrat, Herald Tribune, Ocala StarBanner, Miami Herald, Orlando Sentinel.] -

lAlbbyistlies oflFlOOC Smtaty
·ScmD

F

lorida Department of Gorrections' Secretary James
Crosby was placed on the hot seat in September and
October '05 when he found his ties to lobbyists seeking
business with the state's prison system being closely
scrutinized and questioned.
Crosby, 53, apparently ignoring the fact that his
actions would, at the least, create an appearance of

impropriety, has been going to concerts, dinner meetings
and sporting events with lobbyists and executives from
companies trying to obtain multimillion dollar contracts
with the FDOC. Questions being raised involve: Why, if
such contracts are required by law to be Jet by competitive
bidding, with the contracts going to the lowest bidders, are
lobbyists and company executives so interested in trying
to obtain a favorable status with the head of the FDOC?
Even Crosby does not seem to be able or willing to answer
that question.
In September Crosby was forced to admit that he.
has went to several social events with Don Yaeger, a
Sports Rlustrated writer who also happens to own a
lobbying finn. But Crosby claims that he always paid his
own way and that he and Yaeger do not have a social
relationship.
"
Crosby acknowledges that he took his wife to see
the rock group Aerosmith, country singer George Strait,
and a rodeo at Yaeger's skybox at the Leon County Civic
Center. And he also admits that he went to a Florida
State-North Carolina State football game and FSU-Florida
baseball game with the lobbyist. Crosby said Yaeger
invited him to the events, but says he obeyed state ethics
policy requiring him to repay the lobbyist. He says he has
the canceled checks,to prove it.
Crosby also admitted that he is aware of ethic
rules prohibiting contact with venders and agency staff
while a bid award is pending, ~cept through official
channels. Crosby said he followed that rule since he and
Yaeger never discussed state business at any of the events
they attended iogether. At the time Crosby and Yaeger
were hobnobbing Yaeger was representing a Miami firm,
Medical Care Consortium, which isaffiUated with Armor
Correctional Health Services, a Broward County finn
interested in obtaining a lucrative South Florida prison
contract. The wntract is for providing medical, dental,
pharnlacy, and mental health services to 17,000 prisoners
in South Florida for five years. A deal worth more than
$100 million.· Yaeger's clients wanted a piece of that
action, but others did too.
Wexford Health Services, a Pittsburgh firm that's
. had the South Florida prisons' health care contract since
2001, and Yaeger's clients' biggest competitor, wasn't
interested in sharing any of the contract. But Wexford has
been having problems fulfilling its part of the wntract.
Things got so bad the FDOC threatened to impose
monetary tines against Wexford, but a state official
monitoring the contract said Wexford had made
substantial improvements in July. By then, however, the
Legislature had placed a provision in the new state budget
requiring the contract to be rebid in October. That started
a scramble among lobbyists for other health care
companies, including Yaeger. to try to get all or part ofthe
contract.
The competition was so fierce the FDOC let it be
known they were wnsidering splitting the contract into
.
5

Flo~ida

6

Prison Legal Perspectives

four parts, with four different companies able to bid on
and get a part of the split-up contract No doubt Crosby
and his contract staff suddenly found them$elves· being
wooed by lots of lobbyists and enjoying the perks they
were willing to provide to gain influence.
Once legislators learned about what was going on
they were outraged and the FDOC was forced to drop its
plan to split up the health care contract. Instead, Crosby
has directed his staff to redo the bids and only one
company will be hired to fulfill the contract through
-competitive bidding, with the lowest bidder award~ the
contract.
Rep. Gus BllITeiro, R-Miami Beach, who chairs
the House committee overseeing prison spending, said that
was only part of the problem. that lawmakers have found
serious deficiencies in other prison contracts, including
one for repackaging pharmaceuticals in prisons.
Apparently legislators knew more than they said.
In October a high-ranking FDOC health care officia~ John
Burke, suddenly quit his S95,OOO-a-year job amid
questions about his past ties to the company that has the
contract to package medicines for prisoners.
In his resignation· letter Burke noted "increasing
turmoii" over his past work for TYA Pharmaceuticals of
Ta!lahassee and another company, MHM Services of
Vienna, VA, as a reason for his resignation. "I have done
nothing improper, unethical or illegal during my tenlJre
now or before," Burke wrote. Burke had disclosed his
past ties to those companies on a financial disclosure form .
filed with the state's Commission on Ethics, but Crosby
and his crew claim Burke never told them about his past
ties to those companies. Both of those companies were
involved in the frenzy to get part of the split-up health
care contract.·
While all that was going on, in October another
revelation came to light about Crosby.
In July of this year Crosby, over dinner in
midtown Manhattan, met with two executives of another
company seeking a multimillion-dollar contract with the
FDOC. The company, G4S Justice Services, later won a
threo-year contract with the FDOC to monitor sex
offenders in half the state. Reportedly, it won because it '
had the lowest bid.
.
Crosby's dinner with the G4S executives in New
York came while Crosby was there at a nationwide
convention of probation and parole officials. He said no
ethic rules were violated because he paid for his own tab
and the contract wasn't discussed.
"You can't live in a vacuum and say you're never
going to talk to anybody." Crosby said. "Right up front,I
said, 'Don't jeopardize your contract, folks..... Mainly
they wanted to get to know me:" Crosby had become a
. very popular fellow.
G4S sales director Leo Carson, who was at the
dinner with Fiona Walters, the company's top executive,
said it was just a casual get together. "The first thing out

of our mouths was, 'We want to avoid this topic, for the·
obvious reason. Agreed? Agreed.'"
Those revelations. have increased the focus on
Crosby and the FDOC with the prison system already
under investigation for allegations ranging from illegal
steroid trafficking to theft of state' property, using
prisoners to perform personal services for employees,
hiring phantom employees to play softball and
mishandling recycling grants.
FDOC spokesmen have repeatedly said Crosby is
not even considering stepping down as head of the p~n',;
system, despite the scandals that keep increasing. Gov;
Jeb Bush has said Crosby is doing a fine job.
.
Crosby is not the first high-ranking state official
to get heat from hanging with lobbyists. Last year Jerry
Regier. head of the Department of Children and Families,
was forced to resign after he and aides went to events, !
sometimes at their own expense, as guests of Yaeger and'
other lobbyists. Why Regier would be forced to resign but·'
Crosby would not, for doing essentially the same thing,
doesn't make much sense.
Perhaps lower ethical
standards are expected ofFDOC officials. •

moe Ca]p)D Fomdl
DeOOl mt Gaurbmge Dmmp
Florida Department of Corrections (FDOC) prison
A
guard facing accusations that he raped a fellow guard
was found dead ata North Florida prison October 4. 200S.
Capt. Keith Davison, 39, was found dead in his
Dodge pickup truck at it trash dump at Union Correctional
Institution, .near Raiford, Florida. Union CI is located
only a ,couple of miles from New River Correctional
Institution where Davison worked.
Davison had been fired October 3 by New River
CI warden Michael McRae after he had admitted using a .
visitor's suite at nearby Florida State Prison's bachelor
officer quarters to have an unauthorized party.
, In the letter firing Davison for conduct
unbecoming an officer the warden noted that, "You also
engaged in· inappropriate behavior with a subordinate
employee while at this location." Bradford County
Sheriff's Lt. W.H. "Bear" Bryan confirmed that his
department was investigating the alleged rape of another
guard but would not discuss details of the death
investigation being handled by neighboring Union County
Sheriff's Department.
,
Union County officials said that Davison died of a
gunshot wound to the head, apparently a suicide.
Davison had worked with the FDOC since 1989,
most recently at New River CI, which is across the
highway from Florida State Prison. New River CI has
been a focus of state and federal investigations recently

Florida Prison Legal Perspectives
involving steroid trafficking and use among prison guards,
some of whom also worked at New River CI. (See related
article in this issue of FPLP.)
Davison left behind a wife and two children. •

FDOC's SoftbalUl :IFlremlZY:
P1blslJmtom Employee Paid
to Pllay lBallll
n October 4, 2005, agents from the Florida
O
. Department of Law Enforcement arrested Mark
. Michael Guerra, 33, mSneads, a community in Jackson
County-in North Florida.
.
Guerra was charged with grand theft for accepting
SI,247 as salary for a library assistant's job at Apalachee
Correc,tional Institution when all he actually did was play
softball for a prison employee team during the (FDOC)
Secretary's 24111 , Annual Softball Tournament in
Jacksonville during May of this year.
With Guerra's help, the Apalachee CI team won
the touniamerit, according to an FDLE affidavit. And
James Crosby, FDOC Secretary, was there cheering the
Apalachee CI team on with its phantom employee.
FDLE investigators say Guerra, the husband of a
prison employee, was' "hired" with the knowledge of Col.
Richard Frye and Col. Winfred Warren, top-ranking
officers at the prison who also coach the staff softball
team.
- An employee who supervised the prison library
where Guerra was supposed to work told investigators that
she never met him and he never showed up to work in the '
library, but that she filled out his time sheets because she
feared that if she didn't she would lose her job unless she
cooperated with Col. Frye. That employee was not
charged even though she was an accessory to the theft and
did not claim that Frye or anyone else actually threatened
her or her job if she didn't falsify the time sheets. It is not
known whether she was on the softball team, was a
cheerleader, or just a typical FDOC employee going along
with the culture of corruption that permeates the Florida
prison system.
Guerra, was paid May 15 and May 27 for four
weeks "work." The money he was paid came from the
FOOC's taxpayer-funded S2-billion-a-year budget.
Before 2003 when the Inmate Welfare Trust Fund (IWTF)
was abolished and its money turned over to the state
General Revenue Fund, Guerra would have been paid out
of the IWTF as a library assistant. And perhaps no one
would have been the wiser. Prior to the IWTF being
"appropriated" by the Legislature the state auditor general
declined several requests from Florida Pnsoners' Legal
Aid OrganizJltion, Inc., that the IWTF be audited. Prison
Iibranes have been a prime target J>y corrupt FDOC staff
out to siphon off money for unauthorized
purposes for years.

Guerra told investigators that he was "hired"
because he had played minor league baseball arid played
for a team in Venezuela for about five years.
Mike Hanna, FDOC chief of staff,' said the
department is cooperating with the FDLE on the
investigation. "This kind of behavior is unacceptable and
will not be condoned," Hanna said, after Guerra was
arrested. Hanna said he does not know whether or how
many other phantom employees have been hired to play
softball. It is not known if the FDLE is lookiilg atlWTF
records where the answers may lie.
Depending on Guerra's past history he may only
receive probation or some other community sanction. If
so, he could then to work on another prison softball team,
with a promotion to full "librarian" perhaps. After all, that
is what the FDOC normally does with prison guards and
other prison officials when they are. caught violating the
law. •

lFlloridavs DeatJm PemL1lty:
State High Coon Says JFix lit or
lLose it
TALLAHASSEE-During October the Florida Supreme
Court sent the state legislature a clear message concerning
the death penalty as applied in Florida: Either fIX it or
lose it. If lawmakers don't act on that message. the next
message they get may be a U.S. Supreme Court decision
finding Florida's death sentencing procedure to be
unconstitutional, opined the Court.
That possibility has existed since 2002 when the
U.S. Supreme Court held in an Arizona case that juries
rather than judges _must be the ories to decide whether
there are aggravating circumstances that warrant death
instead of life in prison. Following that decision most
. states that have death penalties, but whose laws didn't
comply with the decision, acted to change their laws. But
not Florida. Though, different than the Arizona law that
was struck down, Florida's law is considered vulnerable
because it allows a jury to recommend a death sentence by
less than a unanimous vote and the judge can impose
death even when thejury doesn't call for it.
'The Florida Supreme Court has been reluctant,
however, to strike down its own state's law and the U.S.
Supreme Court has yet to accept·a Florida appeal that
presents a clear-cut challenge to the state's law. However,
there are such cases working their way up to the highest
court.
.
The Florida Supreme Court took the opportunity
of a procedural appeal in a Pasco County murder case in
October to urge the Legislature. to act now "to require
some ~ty in the jury's recommendations." Florida
is now the only state that doesn't.
7

Florida Prison Legal Perspectives
Of the 38 states with the death penalty, the court
noted, 3S require at least that the jury vote unanimously
that aggravating factors exist. Most also require, as does
the federal government, that the jury must unanimously
vote to recommend the death penalty.
"Many courts and scholars have recognized the
value of unanimous verdicts," wrote the Florida Supreme
Court.
New death sentences are already at a historic low
because judges and juries now recognize that the
alternative, life without parole, protects society without
risking execution of an innocent person. With Florida
leading
in the number of people who have been
exonerated years after wrongful convictions, some who
came very close to being executed, if law makers don't do
something its only a matter of time before Floridians will
have a provable wrongt\ll execution on their conscience.

-

Closing ltJbl© DNA
EX{))JmeJralti{))lDl D{))(Q)Jr
by Sandra Arnold

ver the past few years those police and criminal
Osystem,
prosecutors who willingly manipulate the criminal
fabricate evidence, suborn perjured testimony
and otherwise pervert justice to obtain convictions, have
increasingly been being exposed for what they are. The
spate of exonerations from DNA testing across the
country, freeing innocent people from prison, where many
spent I0, I5 or even 20 or more years, has shown the
public just how fallible the system is. It has also shed
light on just how corrupt some supposedly good guys
really are, where many of the convictions that were later
proven to have been wrongfully imposed with DNA
testing have also been found to have been obtained
through police and prosecutor misconduct. So what
should be done about it?
Wel~ stop the DNA
exonerations, ofcourse.
Although the U.S. Constitution embodies within it
the principle that all persons have a right to prove their
innocence at any time, even after having been convicted of
an alleged crime, there are those in power who have been
working hard 'to make such right meaningless. To those
people, justice is what they say it is and justice should
expire when they say it should..
In September '05 Luis Diaz became one of over
two dozen Florida prisoners exonerated by DNA testing.
Florida has the highest number of such wrongful
convictions in the nation. Since 2000 there have been 99
such exonerations nationwide.
But the 200 I law that let Luis Diaz get DNA
tested to set him free after 26 years in prison for rapes he
didn't commit won't help free many more. It expired
8

October I. After that date Florida prisoners can no longer
motion the courts for post conviction DNA testing. Now,'
the only hope left for the wrongfully convicted in Florida
will be to ask the prosecutor, who did everything possible
to send them to prison, to reopen their case and allow
DNA testing. The odds ofthat happening are slim to none.
. "It is quintessentially un-American for the very
people who may have caused this kind of miscarriage of
justice to be the people who. decide whether DNA testing'
occurs," said Jenny Greenburg of the Florida Innocence
Initiative.
Not satisfied with that almost insurmountable
obstacle, the four-year window in Florida that required the
preservation of. DNA evidence for older cases also
expired October I. And unlike in California, where last
year a law was passed requiring the preservation of
evidence throughout a person's imprisonment, in
September Florida Gov. Jeb Bush mandated that law
enforcement agencies only have to give a 90-day notice
before destroying such evidence. That's a sure way to
reduce exonerations that embarrass the state.
And it's not only Florida. Right now a bill is
working its way through the U.S. Congress that threatens
to prevent many prisoners from filing even one. last-ditch .
petition in federal court. Already Congress has adopted so
many restrictions on prisoners seeking to file a petition for
federal habeas corpus (which the U.S. Constitution states
must always be available) that one would have to be a
legal scholar just to figure them all out. Something
prisoners, with low literacy rates and poor to boot, are not.
One has to wonder why Florida, with its high
number of DNA exonerations, would now want to close
the DNA testing door. Maybe in Florida it's not really
about justice. After all, so what if a few innocent people
spend their lives in prison, or are even executed, so long
as the status quo is preserved? -

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•

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Florida Prison Legal Per~pectives
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Florida Prison Legal Perspectives

~

POST CONVICTION
CORNER

\
;,

by Loren RhotoD, Esq.

1

A common fee arrangement with an attorney for a criminal case consists ofa one -time
payment of a flat-fee, for which the attorney will perform all services necessary, up to and
including a/trial. The flat-fee arrangement is usually a fair contract which will serve to ensure
, that a criminal defendant receives sufficient representation while at the same time imposing a cap
on the amount that is spent on the case. Sometimes, though, if the fee agreement is not properly
structured, it can work to the disadvantage of the client. Some attorneys' fee arrangements
provide for a flat-fee payment which will cover the attorney fees as well as any expenses which
are incurred in conducting the defense. This type ofagreement creates a serious conflict of
interests which could work to the detriment of the client's case. Inherent in such an arrangement
is the temptation for the attorney to cut comers on the preparation of the defense in order to limit
the amount of the flat fee which will be spent on investigation of the case, deposition costs,
expert witness fees, etc. In other words, the less money that is spent on client expenses means
more money w~ich goes toward the attorpey's fee.
A flat fee retainer arrangement which also encompasses client expenses is an actual
conflict of interests which may present a viable postconviction issue for a collateral attack on a
judgment and sentence. Implicit in the Sixth Amendment of the United States' Constitution's
guarantee of the right to counsel is the right to the effective assistance ofcounsel. Strickland v.
Washington, An actual conflict of interest on the part of trial counsel can impair the performan~e
of a lawyer and ultimately result in a fmding that the defendant did not receive effective
assistance ofcounsel. Lee v. State, 690 So.2d 664 (Fla. 1st DCA 1997); Cuyler v. Sullivan, 446
U.S. 335 (1980). To prove an ineffectiveness claim premised on an alleged conflict of interest
the defendant must establish both: (1) that his attorney had an actual conflict of interest; and, (2)
that said conflict affected the lawyer's performance. Herring v. State, 730 So.2d 1264 (Fla.
1998).
If the issue of counsel's actual conflict is preserved and raised on direct appeal, the failure
of a trial court to conduct an inquiry and appoint separate counsel requires that the resulting
conviction automatically be reversed. Lee y. State, 690 So.2d 664 (Fla. 1st DCA 1997);
Holloway v. Arkansas, 435 U.S. 475 (1978). A different rule is applied, however, ifthe issue of.
an attorney's conflict of interests is raised in a post conviction proceeding. When ineffective
assistance ofcounsel is first asserted in a postconviction motion, the defendant must show that
Ute conflict impaired the performance of the defense lawyer. Cuyler v. Sullivan. 446 U.S. at 348.
Even then, though, "it is not necessary to show that counsel's deficient performance resulting
from the conflict affected the outcome of the trial. As the Court held in Sullivan, prejudice is .
presumed. II Lee v. State, 690 So.2d at 669 (Fla. 1st DCA 1997.).
Therefore, if an improper fee arrangement (or any other situation which creates an
"actual" conflict of interests) was present, there may be an available postconviction attack on the
judgment and sentence. If such an issue is available, it should be raised in a Florida Rule of
Criminal Procedure 3.850 Motion for Postconviction Relief. It is important to point out both: (1)
that an actual conflict of interests existed; a~d, (2) that the conflict of interests impaired the
10

Florida Prison Legal Perspectives

performance of the defense attorney. Ifissues of failure to properly prepare a case, investigate a
case, or other like deficiencies exist, these issues should be argued to show that the attorney's
performancewas adversely affected by the conflict ofinterests. It is important to understand that
even though the conflict of interests creates a presumption ofprejudice, said presumption is not
irrefutable. Obviously, the conflict issue becomes stronger with more facts demonstrating
prejudice to the defendant. Therefore, it is important to argue any facts which demonstrate how
the attorney failed the client as a result of the conflict.

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

EXPERIENCED CRIMINAL DEFENSE ATTORNEY
AVAILABLE 'FOR STATE AND FEDERAL
POST-CONVICTION MATTERS
• Admitted to the Florida Bar in 1973
• Over thirty years experience in the practice ofcriminal law
• Providing representation in Direct Appeals, Belated Appeals,
3.850 motions, 3.800 motions, 2255 motions, State and Federal
,Habeas Corpus' ~etitions, Detainer Issues,
and other Postconviction MatterS.
Inquiries to:
Law Offices of
Vanie{V. :Mazdr,
2153 Lee 1wtUl
'Winter Pari, :Fi:. 32789
'ro{[:Free ref 1-888-645-5352
'ret: (407) 645;'5352
:Fax: (407) 645-3224
!be hiring of a lawyer is an important decision that should not be based solely upon advertisements. Beforo
you decide, ask us to send you free information about our qualifications and experienco.

11

Florida Prison Legal Perspectives

- lFLORlDD>A lPAR.OlLlB - .
LawsW11: C]SlJims S1UIJClSlbuine
lLaw Violations
by Teresa Burns Posey

12

TALLAHASSEE-A lawsuit filed in September accuses
Monica A. David, Chairman of the Florida Parole
Commission (FPC), of violations of the state's open
public meetings and records laws. The ramifications of
this lawsuit could be particularly damaging to the state
agency, that many feel is already reeling on the ropes,
where intentional violations' of Florida's open public
meeting laws, commonly termed Sunshine Laws, and
violations of public records laws, are criminal offenses. If
successful, this lawsuit, which does allege intentional
criminal acts by Monica David, could result in David
joining former FPC Chairman Jimmie Henry in prison. At
a minimum it is going to result in changes at the
Commission.
The lawsuit was filed September 12, 2005, in the
Leon County Circuit Court by Erica Flowers, a resident of
Orlando, Florida. For over 10 years the FPC, which is
responsible for deciding parole issues and that conducts
clemency investigations as part of the restoration of
felon's civil rights process in Florida, has provided false
and misleading information about how and where to
attend FPC public meetings, obtain public records, and
about the commission's organization and operations,
according to Flower's lawsuit.
The suit specifically names the current chair of the
FPC, Monica David, as being statutorily responsible and
accountable for having intentionally allowed erroneous
information to remain in the commission's official
administrative rules that misinforms and actually obstructs
the public's access to FPC public meetings and public
records.
Flower's, who asserts standing to sue David as a
taxpayer and member of the public, claims in the lawsuit
that David has been a parole commissioner for over five
years and chairman of the commission for over two years,
yet has failed to take any action to ensure that the
commission's rules provide correct information. The
lawsuit identifies numerous rules in Chapter 23, Florida·
Administrative Code, which contains the FPC's official
rules, that no longer are correct and that do not comply
with currect law. None of the commission's rules have .
been updated since 1994, Flowers claims. And in several
places the rules direct the public wishing to attend or
participate in FPC public meetings or wishing to obtain
FPC public records to an address that the FPC moved
from in Tallahassee over 10 years ago.
The FPC's rules, that are on file with the
Department of State, also provide false and outdated

information about how the' commission is organized and
operates, Flowers says in her complaint.
As chairman of the Parole Commission., David,
according to Florida law, is also the agency's chief
administrative officer and responsible for ensuring that the
agency's rules provide accurate and current information to
the public concerning public meetings and records and
about how the agency is organized and operates.
David, . the lawsuit states, as a parole
commissioner and responsible for all FPC administrative
functions, has 'read the agency's rules and knows that they
provide false information that wo~ld prevent members of
the public who rely on them from attending FPC public
meetings, from obtaining· public records and from
knowing how the agency is currently organized and
operates. Flowers claims David's intent in not updating
and correcting the rules is to limit and obstruct the
public's knowledge about the commission's activities to
limit criticism of the controversial agency.
The only alternative, Flowers asserts, is that
David has never read the rules of the agency that she
heads and has no idea they are seriously outdated or even
contrary to the law in several instances. That scenario,
which could save David from potential criminal charges,
would raise serious questions about how David has been
running the agency, making parole decisions, etc., if she
doesn't even know what the agency's rules require her to
do, claims Flowers.
Flowers, who states she was obstructed from
attending and participating in FPC public meetings and
from obtaining public records when she relied on the
erroneous information in the FPC's rules, is asking the
court to declare that the rules violate Florida's Sunshine
and public records laws and that David has herself
intentionally violated those same laws.
Earlier this year, dissatisfied with the job i~ has
been doing, the Florida House voted unanimously to
abolish the parole commission., tum its few remaining
parole duties over to volunteer, regional parole panels and
its clemency investigation responsibilities over to the .
governor's clemency office... That legislation., however,
stalled in the Senate, which did agree not to fund any
increase in the FPC's budget this year and to reconsider
the House's abolishment legislation during the 2006
legislative session. (See: FPLP, Vol. II, Iss. 2, "Florida
Parole Commission Escapes Abolishment, At Least for
One More Year," pg. 18.)
David was appointed to the FPC chair position in
2003 after the last chairman., Jimmie Henry, was forced to
resign and later charged, convicted and sentenced to 3
years in prison for gross misuse of FPC and taxpayer
funds. Since taking over as head of the commission,
records show that David has focused more on using the
position to advance her own ambitions while neglecting
her FPC duties and responsibilities, claims Flowers.

Florida Prison Legal Perspectives

Ult's ridiculous. Here's an agency that should
have been abolished ten years ago, that the legislature
intended to abolish ten years ago, still hanging in there by
faking that it still serves some useful purpose. The little
that the Parole Commission does do could easily be done
by other existing agencies or offices, at much less cost and
waste to taxpayers," Flowers said in an interview with
FPLP staff. "When I discovered how out of date the
commission's rules are I was stunned. I understand now
why so many people believe it's time to get rid of the
commission as it exists for something new.
Incompetence only breeds more incompetency."
Florida Prisoners' Legal Aid Org., Inc. (FPLAO).
will be assisting FIQ.wers with her suit as it goes forward
Staff from the FPLAO Parole Project distributed a news
releise concerning the suit to every state legislator and
several media outlets in mid-September. Erica L. Flowers
v. Monica David, Chairman, Florida Parole Commission.
Case No. 200S-CA-002194, Second Judicial Circuit
Court, filed 9/12105.
[Editor's Note: Updates on this case will appear in FPLP
as it proceeds. FPLAO Parole Project staff expects more
lawsuits to be filed against the Parole Commission in
coming months. Stay tuned. - bp] •

David

~

Parole Commissioo Jookeys
for I.egisllamvemtlOOll1loo

E

arlier this year, shortly after the regular legislative
session in the Spring that had the state Legislature
seriously considering the complete abolishment· of the
Florida Parole Commission (FPC), the commission's
chairman, Monica David, announced the appointment of
Kurt Ahrendt as Director of Operations of the FPC
effective July 26, 2005.
Ahrendt replaced Andrea
Moreland as FPC operations chief. Moreland moved to a·
position with the Department· of FinanCial Services,
Securities and Banking Division.
Ahrendt was previously employed with the FPC
as an assistant general counsel from 1984 through March
1997 and is therefore part of the FPC culture. More
importantly, perhaps, with the Legislature scheduled to
again consider abolishing the commission during the 2006
legislative session, Ahrendt, after leaving the commission
in 1997 worked for the Legislature as a council attorney
and staff director for the House of Representatives.
Before coming back to the commisSion he was Policy
Chief for public safety issues in ·the Governor's Office of
Policy and Budget. •

Collins, Attorney at Law

Fonner state prosecutor with more than 20 years of criminal law experience
"AV" rated by Martindale:Hubbetl Bar Register ofPreeminent Lawyers

Your voice in Tallahassee representing prisoners in aJl areas ofpost-eonvietion relief:
Appeals
3.800 Motions
3.850 Motions

State and Federal Habeas Corpus
Writs of Mandamus

Parole Hearings
Clemency

Plea Bargain Rights
Sentencing and Scoresheet Errors
Green, Tripp, Karchesky, Heggs cases
Jail-time Credit Issues
Gain-time Eligibility Issues
Habitualization Issues
·Probation Revocation Issues

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David W. Collins, Esquire
P.O. Box 541.
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Before you decide, ask me to send you free written information about my qualifications and experience."

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13
J

Florida Prison Legal Perspectives
I

FL - In early September 'OS Allan
Duffee, fonner director of the Florida
Correctional
Privatization
Commission (CPC) that was
abolished by state lawmakers in
2004, was indicted by· federal
authorities for fraud. Duffee, at
arraignment, pleaded not guilty to the
accusation that he skimmed almost
$225,000 from a maintenance fund.
For more infonnation about the
controversial CPC, which was set up
to oversee privately-operated prisons
in Florida, but that ended up working
with private prison companies to bilk
taxpayers: See OFPLP, Vol. 10, Iss.
6, pg. 4, arid Vol. II, Iss. 4, pg. 9.
FL - In Sept 'OS the Florida
Supreme Court held that ex~prisoners
can be held in custody while the state
appeals decisions by judges against
detaining them as violent sexual
offenders under the Jimmy Ryce Act.
.The Ryce Act allows the state to
indefinitely hold convicted violent
sexual offenders after their prison
sentences
are completed for
treatment and public protection.
FL - During Aug. 'OS Duval Co.
Chief Circuit Judge Donald Moran.
held that the first graduate of the
state's treatment center for sexual
offenders will continue to be held
indefinitely.
Moran rejected a
finding from the Florida Civil
Commission that Doug Carlin, SO,
was ready to be released from the
Florida Civil Commitment Center in
Arcadia. Carlin was convicted of
raping a woman in Jacksonville in
01983.
Carlin's attorney, Mark
Miller, said his client did everything
asked of him in five years of
treatment and was promised that he
would be released from civil
commitment to continue treatment on
an outpatient basis. Miller said he
14 will appeal Moran's continued

confinement of Carlin to the III
District Court ofAppeal.
FL - A veteran inspector with the
Florida Department of Law
Enforcement, Florida's version of
state police, was arrested· and
charged Oct 4 with SO counts of
criminal possession of " child
pornography. Raymond Meresse,
58, who was awarded a Bronze Star
in Iraq with his Army Reserve unit, .
was booked into the Leon Co. Jail
after his arrest. According to FDLE
records, Meresse became the focUs of
an investigation in early September
when the FDLE's internal security
system alerted authorities that
Meresse was using his work
computer to access Internet porn
sites. . It was later found some of the
sites contained child pornography.
Meresse was charged with 46 counts
of child porn possession, three counts
of distributing child porn, and one
count of attempting to distribute
same. Meresse had received the
Bronze Star in June for his
perfonnance as wartime groug
command sergeant major of the 375
Transportation Group and 143M
TRASCOM during Operation Iraq ~
Freedom.

NadoDal - As of Oct. 3 federal
prisoners will be charged a $2
medical
co-payment
fee
for
requested health
care
visits,
including sick call, after-hours
requests to see medical personnel,
and medical evaluations. Indigent
prisoners (those who have not had at
least $6 in their inmate trust fund
account for the past 30 days) will not
have the co-payment deducted from
their accounts.

Commission,
a
nin~member,
bipartisan conimission studying the
impact of prison rape, will hold its
third hearing. The hearing comes on
the heels of the first-ever statistical
report done by the U.S. government
on prison rape and sexual .abuse.
That report, released this summer by
the Justice Department's Bureau of
Justice Statistics, estimated that in
2004 there were 8,210 incidepts of
prison rape or sexual abuse in0U.S.
adult prisons, local jails and juvenile
facilities. The report noted that 'it
was impossible, however, to estimate
unreported sexual victimization.
Statistics substantiated almost 2, I00
incidents of sexual violence, with 42
percent happening in state and
federal prisons.
State-operated
juvenile facilities had the highest rate
of substantiated incidents at 5.2 per
1,000 youths. The rate ·was 5 per
1,000 for local. and privato-operated
juvenile facilities. Those rates were
almost 10 times higher than those
reported in adult state prisons. The
report
is
available .
at: .
www.ojp.usdoLgovlbjs/pub/press/svr
ca04pr.htm
08 - In Oct. 'OS Ohio prison
officials said life will change for the
state's death row prisoners when
they are moved to a new prison soon.
Death row prisoners will .not be
allowed toosmoke at the new facility
but will be allowed to eat outside of
their cells and will 'have more
recreation time. Ohio is moving its
death
row
from
Mansfield
Correctional
Institution to a
maximum-security
prison
in
Youngstown to save money. Prison
officials refused to say when the
move will occur for security reasons.
W A - A Washington man turned

Nadonal - This fall the National
Prison

Rape

Elimination

himself in to Bellingham police
during Sept. 'OS for the murder of 2

Florida Prison Legal Perspectives

convicted child rapists.
Michael
Anthony Mullen, 36, told police he
picked his victims-Hank Adolf
Eisses. 49. and Victor Manuel
Vasquez, 68-from a sheriff's Web
site that list the addresses of
convicted sex offenders. Both men,
who live together. had been shot in
.the head exeCution style. They were
found dead hours after a man
claiming to be an FBI agent showed
up at their apartment and told them
they were on an Internet "hit list," a
witness told police. Days after the
murdQl'S an anonymous letter was
sent to a local paper. the Bellingham
Herald, claiming responsibility for
the murders and threatening to kill
other sex offenders living in the area.
WY - A second former jail detention
guard in Wheatland was charged
with having sex with two female
prisoners and abusing a third at the
Platt Co. Jail in September 'OS.
Glenn Durham, 37. was placed on
$10K bond and released on his own
recognizance after being charged.
Former jail guard Jeremy King also
faces charges of abusing a female
prisoner.•

Data on death row
Since the US S'upreme Court reinstated the death penalty in 1976.
almost 1,000 executions have been carried out The map below shO\YS
the number of executions that have occurred in each state, and the.
shading shows the rate of executions.

Execution rate per 1 million population

CJ None

o

CJ 1.6 to 3.4

IjJll.5 to 16.9

Lill3 4.2 to 9.4 II 22.4

0.2 to 0.9

G

No death
penalty

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D.C. I?Zl

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Cash fast.
I buy houses
Scott kidd 813-752-4349
Po box 5435
Plant city f133563

Email

l!·klkLJ.:JJ:·a.l!~om.

Web http://buycastle.org

/~,

,

Federal

govemment3
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Exonerations·

..

In addition to the 229 death-row inmates who haw been @anted
clemency since 1976. 122 have been exonerated through DNA
testinll' and other means. Half of the exonerations since 1972
came in the past.10 years..
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SOURCE; Deatll Penally InformatIon Center

15

Florida Prison Legal Perspectives

Thefollowing are summaries ofrecent state andfederal cases thaI may be weful to or have a signip::ant impact on Florida prisoners.
Read,ers should always read the full opinion as published in the Florida L~ Weekly (Fla. L. Weekly); Florida Law WeelcJY Federal
(Fla. L Weekly Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct); Federal Reporter 3d (F.3d); or the
Federal Supplement 2d (F.Supp. 2d), since these summaries are for general information only.

u. S. APPEALS COURT

16

Howell v. Crosby, 18 Fla.L.Weekly
C691 (11 th Cir. 7/6/05)
The main issue this case
pointed out was that' attorney
negligence is not a basis for equitable .
tolling under 28 U.S.C. section
2244(d)(2), when filing a petition for
a writ of habeas corpus.
Paul A. Howell, a Florida
prisoner, argued that the district court
had erred in dismissing his petition
as untimely. He conceded that he did
not file his petition within the oneyear statute of limitations imposed
by the Antiterrorism and Effective
Death Penalty Act of 1996
(AEDPA), 28 U.S.C. section
2244(dX1). However, he argued that
he was entitled to equitable tolling
under section 2244(d)(2).
He
contended that the statute of
limitations should have been tolled
because his private attorney that was
appointed to him' during his state
postconviction proceeding failed to
file a petition for state postconviction
relief within one year after Howell's
conviction and sentence became
final.
"Equitable
tolling
is
appropriate when a movant untimely
files because of extraordinary
circumsiances that are both beyond
his control and' unavoidable even
with diligence." See: Sandvik v.
United States, 177 F.3d 1269, 1271
(1 lib Cir. 1999) .
In Howell's case, his
sentence became final on June 26,
1998, when the Supreme Court of the
United States denied his petition for
a writ of certiorari. Howell had one
year from that date to file a petition
for a writ of habeas corpus in a

federal district court. A properly
Helton . v. Secretary for the
filed motion for State. postconviction
Department ofCo"ections; 259 F.3d
or other collateral review would have
13\0, 1313 (11 th Cir. 2001), attorney
tolled the federal statute of
negligence is not a basis for equitable
limitations. See: 28 U.S.C. section
tolling,
especially
when, the
2244(d)(l )(A), (d)(2). .on December
petitioner cannot establish his own
21, 1998, the Circuit Court of
diligence in ascertaining the federal
Jefferson County, Florida, appointed
habeas filing deadline. Therefore,
an attorney to represent HoweJl in his
the dismissal of Howell's petition as
state postconviction proceeding. On
untimely by the district court was
March 19, 1999, that.attorney filed a
;1ffirmed.
motion for an extension of time
within which to file a petition for
Lawrence
v.
Florida,
18
postconviction relief. That motion
Fla.L.Weekly Fed. C884 (11 th Cir.
was granted, and on August 30,
8/26/05)
1999, more than two months after the
The main question this case
federal limitations period elapsed,
presented w~ whether Gary
Howell's attorney filed a state
Lawrence's petition' for. writ of
petition for postconviction relief. (It
habeas corpus' one-year limitations
was found and was undisputed that
period was tolled during the
Howell's. motion for extension of
pendency of Lawrence's petition for
time did not meet the criteria of . writ of certiorari in the United States
section 2244(d)(2) as "a properly
Supreme Court that challenged the
filed application" for postconviction
state court's denial of his motion for
relief. See: Artuz v. Bennett, 121
state collateral review.
S.Ct. 361, 364 (2000) ("an
The 11 th Circuit noted that
application" for state postconviction
there was a circuit split on the issue,
relief "is properly filed" when its
although it has clearly stated that the
delivery and acceptance are in
limitations period is not tolled during.
compliance with the applicable laws
the pendency of a petition for
and rules governing filings); State v.
certiorari challenging a state court's'
Boyd, 846 So.2d 458, 459-60 (Fla.
denial of postconviction relief. See:
2003) (distinguishing motions for
Coats v. Byrd, 211 F.3d 1225, 1227
extensions
of
time,
under
(ll tb Cir. 2000). Under that reason,
Fla.R.Crim.P. 3.050, and those for
the 11 th Circuit stood firm in its
postconviction
relief,
under
holding and did not find the issue
Fla.R.Crim.P. 3.850 .)
debatable.
The 11 th Circuit determined
that HoweJl was not a victim of . FLORIDA SUPREME COURT
extraordinary circumstances beyond
his contro~ and the district court did
Clines v. State, 30 Fla.L.Weekly
not commit clear error when it
S525 (Fla. 7n/05)
determined that HoweJl was not
This case was before the
diligent. As the 11 th Circuit has
Florida Supreme Court to resolve a
concluded in Sandvik; Steed v. Head,
conflict regarding whether the
219 F.3d 1298 (lIth Cir.' 2000); and
recidivist sentencing statute allows' a

Florida Prison Legal, Perspectives
court to sentence a defendant as both
a habitual felony offender and a
violent career criminal. The First
District held that it does, Clines v.
Siale, 881 So.2d 721 (Fla. 151 DCA
2004), while the conflicting district
courts held it does not. See: Works
v. Siale, 814 So.2d 1198 (Fla. 2d
DCA 2002) and Obersl v. Siale, 796
So.2d 1263 (Fla. 4d1 DCA 200) ).
Section 775.084, Florida
Statutes (2002), establishes four
categories of recidivists whose
sentences
may
be
enhanced.
Recidivists within those categories
are subject to enhanCed punishment,
which generally increases with each
category. The two habitual offender
categories are permissive, where
such offenders "may" be sentenced
more harshly than otherwise. The
other two categories are mandatory.
Three-time violent felony offenders
"must" be sentenced to mandatory
minimum terms, and the violent
career criminals "shall" be sentenced
to lengthy minimum terms and may
also be sentenced to even longer
maximum termS, with no eligibility
for discretionary early release.
In reviewing the recidivist
statute, the State Supreme Court
noted that a defendant could meet the
criteria of more than one category
because of the substantial overlap
among
the
four
categories.
However, the main issue that the
district courts disagreed on was
whether the "or" in subsection (4)(t)
is disjunctive or conjunctive. If it is
disjunctive, as the Second and Fourth
Districts endorsed, then trial courts
may only sentence a defendant under
one category. But, as the First
District believes, in that the "or" is
conjunctive, defendants may be
sentenced under multiple ~tegories.
The First District's reasoning
was, had the Legislature used the
conjunctive "and", the statute would
have been hopelessly confusing.
Thus, the reason "or" was used
instead, as a conjunctive.
This
explanation was unpersuasive. The
Supreme Court related that it would
be a rare circumstance for the word

"or" to have the' plain meaning
"and." If the Legislature had been
aware of the grammatical dilemma
and had wanted to make its
conjunctive meaning clear, it would
not have relied on the typically
disjunctive word "or" to ,do so.
Instead, the Legislature would have
added an explicitly clarifying phraS~
such as "or any combination
thereof," -to the end of the sentence.
That it did not evidences that the
Legislature either: (a) intended a
disjunctive meaning, or (b) simply
did not anticipate the grammatical
dilemma that was raised in the
conflict. The State Supreme Court
doubted that the latter was true,
"because the dilemma is so readily
apparent." Thus, it could not be
found for sure that the plain meaning
of the word "or" was intended to
have a disjunctive meaning, let alone
conjunctive.
The word "or" is usually, if
not always, co",trued judicially as a
disjunctive unless it becomes
necessary in order to conform the
clear intention of the Legislature to
construe it conjunctively as meaning
"and." After a lengthy review of the
statutory structure to determine if the
Legislature intended it to be
conjunctive, it was found that section
775.084 is ambiguous as to the issue.
However, the evidence to the word'
being disjunctive is stronger.
Therefore, the rule of lenity
was applied. Florida has codified
that rule as follows: "The provisions
of this [criminal] code and offenses
defined by other statues shall be
strictly construed; when the .language
is
susceptible
of,
differing
con~tructions, it shall be construed
most favorably to the accused." See
section 775.021(1), Florida Statutes
(2002). In Nellies v. Siale, 850 So.2d
487, ,494 (Fla. 2003), it has been
explained that the lenity rule "is
applicable to sentencing provisions"
if they."create ambiguity or generate
differing reasonable constrllctions."
As a result, the Florida
Supreme Court concluded that
section
775.084
permits - the

application of only one recidivist
category to the defendant's sentence.
Therefore, the First District's
decision in Clines was quashed and
that ' case was remanded for
resentencing in light ofthe ruling.
Slate v. Cregan, 30 Fla.L.Weekly
S53S'(FIa. 7n105)

The issue that the Florida
Supreme Court had to resolve in this
case was whether a court may grant
jail time credit for time spent in a
drug rehabilitation facility as a
condition of community control.
It was noted that the statute,
which governs jail time credit,
section 921.161(1), Florida Statute
(2003), when read literally, applies
only to time served in a county jail
awaiting a sentence. But in TaIMason v. Siale, 515 So.2d 738, 740
(Fla; 1987), the statute has been
interpreted to require credit for time
served "in any institution serving as
the functional equivalent of a county
jail.'!
Time spent in the control
release program or in a drug
rehabilitation facility as a condition
of probation, is not the functional
equivalent of time spent in a county
jail. Likewise, it has been held that
one does not receive credit' for time
spent on community control. See:
Young v. Siale, 697 So.2d 7S (Fta.
1997), where the decision was
supported by the provision under
section 948.06(2), Florida Statutes
(1993), "[n]o part ofthe time that the
defendant is on. probation or in
community
control 'shall· be
considered as any part of the time
that he shall be sentenced to serve."
That was interpreted prior to it being
renumbered as section 948.06(3), see
ch. 97-299, section 13, Laws of
Florida, which established a general
rule that "credit cannot be given for
time served on community control."
the
Florida
Therefore,
Supreme Court held, as it did in
Young, that a defendant who violates
the conditions of community control
, cannot be given credit against a
subsequent term of incarceration for
,

,17

Florida Prison Legal Perspectives
time spent in community control.
See: section 948.06(3), Fla. Stat.
(2003).
This prohibition applies
when a. def~dant spends time in a
drug rehabilitation facility as a
condition of his community control;

FLORIDA APPEAL COURTS
Joseph v. Slale, 30 Fla.L.Weekly
01489 (41b DCA 6115/05)
Irique
Joseph's
case
presented an issue of an involuntary
plea of no contest based on an
inadequate plea colloquy.
Upon being granted an
evidentiary hearing from a motion to
~thdraw plea, Joseph claimed that
his counsels failed to do anything
and kept pushing him to take a plea
or be convicted at trial. Also, while
admitting that he signed a plea form,
Joseph claimed he did not understand
what a plea of no contest meant. He
further stated that he had not really
listened to the judge's questions:
. whether he had discussed the case
with .his lawyer; whether. he was
satisfied with his counsel's services;
whether he understood what was
occurring and that by entering a plea
of no contest he was giving up his
right to trial; whether he understood
the plea; whether everything was true
to which he signed his name, of
which. Joseph had answered yes.
Joseph further asserted at the
.evidentiary hearing that, although he
told the judge during his plea that he
had read the plea form or had it read
. to him, he just signed the form and
saw where it indicated the amount of
sentence.
It was decided to d~ny
Joseph's motion to withdraw the plea
at the evidentiary hearing because it
was opined that: Joseph's counsel
.had fully prepared the case for trial;
Joseph was advised of the strength of
the' state's case, the maximum
penalties
he
faced;
Joseph
understood what he was doing when
he .entered into the negotiated plea;
and Joseph had stated under oath that
he understood the plea and
voluntarily entered into it.

18

,

Rule 3.l72(c), Florida Rules
of Criminal Procedure, sets forth
certain consequences that can result
with the entry of a plea that a trial
court should inquire into the
defendant in order to determine the
voluntariness of a plea. The 'failure
to follow any of the procedures in
that rule shall not render a plea void
absent a showing of prejudice. See:
Fla.R.Crim.P. 3.1 72(i).
On appeal in Joseph's case
the appellate court pointed to Koenig
v. Slale, 597 So.2d 256, 258 (Fla.
1992).
In Koenig, the Florida
Supreme Court held that a plea of no
contest was deficient where the court
failed'to inquire into the defendant's
understanding of the plea so that the
record contained an affirmative
showing that the plea was intelligent
and voluntary.
,
In Joseph's case, he signed a
form which described in detail the
',rights he was waiving. Also, in
response to the loYfer' courts inquiry,
Joseph stated that he discussed it
with his counsel. However, there
was nothing in the record to
demonstrate that Joseph understood
the waiver of rights form he signed
or what his attorney told him about
it.
Under Koenig, due process
requires a court accepting a guilty
plea to carefully inquire into the
defendant's understanding of ~e
plea, and that the absence of a Rule
3.I72(c) inquiry by the court
compels remand.
Accordingly; Joseph's case
was reversed and remanded to allow
him to withdraw his plea and proceed
to trial.
McKeehan v. Slale, 30 Fla.L.Weekly
01528 (51b DCA 6117/05)
Ronald McKeehan sought
mandamus relief in his case from the
appellate court, asking it to compel
the Circuit Court of Orange County,
Florida, to rule on his motion for
postconviction relief filed pursuant to
rule 3.850. . Although his petition
was insufficient as a matter of law,
the appellate. court ordered a
response from the state because,

' petition
"Mr.
McKeehan's
incorporated a. letter, purportedly
written by his trial counsel,. admitting
to a variety of professional sins,
which, if true, would constitute
ineffective assistance of counsel.
The state responded that "Mr.
McKeehan's counsel denied writing
the letter." It was noted that the,trial
court, in denying McKeehan's
motion, concluded that the letter was
of "dubious origin" and appeared to
have been "cut and photocopied
together."
The appellate court stated,
"It appeared. Mr. McKeehan may
have filed a forged'ietter with both
this Court and with the circuit coUrt
in Orange County." Consequently,
McKeehan's petition was denied. '
Furthermore, the appellate
court directed its Clerk of Court to
provide a copy of their opinion to the
State Attorney of the Ninth Judicial
Circuit for investigation to detennine
whether. McKeehan had violated any
criminal laws ofFlorida.
[Note: A copy of the forged letter,
reduced in size, was shown on page
01 528 just below the end of
McKeehan's case.]
Isaac v. Stale, 30 Fla~L.Weeldy
Dl528 (Fla. I" DCA 6/23/05).
In regards to the, nonretroactivity of the holding in
Apprendi v. New Jersey, 530 U.S.
466 (2000), this case provided an
interesting twist to its applicability to
a resentencing after Apprendi was
decided.
Lemuele Isaac had ~, been
resentenced on March 17, 1999, he
did not appeal any ,issue involving
that resentencing. A short time later,
Isaac was resentene:e.d .again: that
involved being sentenced ,. under the
1994 guidelines (Heggs issue), in
response to a rule 3.800(a) motion
that was filed. Isaac appealed that
resentencing complaining about the
lower court's imposition of an
upward departed sentence. "The
appellate
court .affmned .. the

Florida Prison Legal Perspectives
sentencing on July 23, 2002, issuing
the statutory maximum set forth in
section·775.082, Florida Statutes, the
'll"inandate on October 10,2002.
Now, while Isaac's appeal of
statutory maximum has since been
that resentencing was pending, he
revealed to mean "the maximum
sentence a judge may impose solely
had filed his initial rule 3.850 motion
in the trial court on November 9,
on the basis of the facts reflected in
··2000. When the resentencing issue
the jury verdict or adinitted by the
was affirmed (July 23, 2002), Isaac
defendant." See: Blakely, 124 S.Ct.
at 2537. Therefore, a departure
filed an amendment to the stillsentence imposed pursuant to the
pending rule 3.850 motion on May
trial court detennining a fact by
30, 2003, prior to any rulings made
on the initial motion.
This
merely a preponderance of the
.amendment
Pertained
to
the
evidence violates the holding of
resentencing issue regarding the
Apprendi as explained by Blokely.
In the appellate court's
upward departure. The lower court
conclusion, it was opined that under
sUmmarily denied Isaac's rule 3.850
the particular facts of Isaac's case,
motion
and
the
subsequent
amendment as being untimely. Isaac
reliance on the law of the case
doctrine would be manifestly unfair
·appealed this decision.
because the United States Supreme
On appeal it was found first
Court made clear that the State qf
that Isaac's two-year time limit did
Florida's post-Apprendi and pronot begin to run until the mandate
Blakely interpretation of the phrase
was issued October 10, 2002, from
his direct appeal· of the resentencing.
maximum"
violated
"statutory
Thus, botlt Isaac's initial rule 3.850 • Isaac's Sixth Amendment right to a
jury trial. See: Blakely, 124 S.Cl at
motion and the amendment were
2537; Horton v. State, 682 So.2d
timely filed.
647, 648 (Fla. .til DCA 1996)
Regarding the departure
.issue on appeal, Isaac argued that the
(applying the exception to the law of
the case doctrine in a collateral
reason for departure that the trial
proceeding where [the First DCA]
court used, an escalating patterri of
relied on an interpretation of case
criminal activity, is a factual
determination that must be found by
law that the Supreme Court later held
a reasonable doubt by a jury, and that
erroneous).
The trial court's summary
the trial Court had violated his Sixth
denial of Isaac's amendment to, his
Amendment right to a trial by jury as
motion was reversed and his· case
explained in Apprendi, and clarified
by Blakely v. Washington, 124 S.Ct.
remanded for resentencing or for the
2531 (2004).
trial court to refute the Apprent#
claim with record attachments.
The state argued that
Apprendi would not apply because
it's holding is not retroactive. The
[Note: See: Galindez v. State, 30
Fla.L.Weekly 01743 (Fla. 3n1 DCA
appellate court found this, to be a
valid statement of the law, citing
2005), and noted within this issue of
Hughes v. State, 826 So.2d 1070
FPLP, where the Third District has
(Fla. 111 DCA 2002); "however," the
decided contrary to the decision here
in.]saac.]
appellate court opined, "as Apprendi
was decided prior to the appellant's
resentencing, the trial court was
Viglione v. State, 30 Fla.L.Weekly
01598 (Fla. Sib DCA 6124/05)
bound by its holding." It was further
explained that although the appellate
The issue involved in this
cOurt had previously affirmed Isaac's
case was whether a trial court erred
departure sentence (July 23, 2002,
in summarily denying a rule 3.850
mandate issued October 10, 2002) on
motion which claimed that a
the basis Apprendi did not apply so
defendant being convicted of both
long as a sentence does not exceed
kidnapping and false imprisonment,

a

.

that appeared to be committed
against one victim, violates double
jeopardy.
On appeal, it was first noted
that the trial court relied upon State
v. Smith, 840 So.2d 987 (Fta. 2003),
in denying relief to the double
jeopardy c,laim. In State v. Smith, it
was held· that a defendant could be
Convicted of both false imprisonment
and robbery without violating double
jeopardy. That opinion discussed a
Faison test (Faison v. State, 426
So.2d 963 (Fta. 1983» for
determining when a charge of
kidnapping with the intent to commit
a· felony could stand separate from
.the other charged felonies in which a .
form of abduction, imprisonment or
confinement is inherent in the
offense. The Florida Supreme Court
held that the Faison test was
inapplicable to the offense of false
imprisonment as that offense, unlike
kidnapping, does not contain as an
element the intent to commit or
facilitate commission ofa felony.
The
appellate.
court
determined that, although State v.
Smith stated that kidnapping and
false imprisonment were different
offenses for purposes of the Faison
analysis, it did not hold that
kidnapping and false imprisonment
were different offenses under a
doubleJeopardy analysis.
False imprisonment is a
general
intent
crime,
while
kidnapping is a specific intent crime.
Double jeopardy prohibits separate
convictions and sentences for those
two offenses if based· on the same
factual act or occurrence.· Thus, the
appellate court determined that the
trial court's reliance on State v. Smith
does not conclusively refute the
double jeopardy claim in this case.
It was decided to reverse the
lower court's c.Jenial of the rule 3.850
motion and remand the case for
further consideration of the claim. It
was further instructed that on
remand, the trial court should either
set. aside the false imprisonment
judgment and vacate the imposed
sentence for that charge, or attach

19

Florida Prison Legal Perspectives
documents to show thBt the two
offenSes involved different factual
acts or victims.

McDowell v. State, 30 Fla.L.WeelJy
D1636 (Fla. 4d1 DCA 6129/05)
Jimmy McDowell had filed a
rule 3.850 motion in a lower court
claiming, among' other issues, that
his counsel failed to advise him, at
the time he was considering a
favorable plea offer, of potential
prison release reoffender sentencing.
The lower court summarily denied
this claim for relief.
On appeal, the state
conceded that the claim was .Iegally
sufficient and warranted further
review. The appellate court agreed,
reversed the denial and remanded the
case for an evidentiary hearing.

20

Colon v. State, 30 Fla.L.Weekly
DI640 (Fla. 5d1 DCA 7/1105)
The issue in this case
involved whether a judge's silence as
to sentences· being imposed' in
concurrent or' consecutive terms is to
be interpreted that the imposed
sentences are to run consecutively.
At
the
defendant's
sentencing in this case the judge. did
not pronounce whether the imposed
sentenceS were to run concurrentiy or
consecutively.
When the state
inquired whether. the judge had
stipulated this, the judge's response
was, "I did not say anything."
Likewise, the written sentencing
document was silent as to that issue.
In a timely manner, the
defendant filed a Rule 3.800(b)(2)
motion to correct or clarify his
sentencing, arguing that if the
sentences are consecutive, the
sentences would· be illegal because it
was not specifically expressed that
the court's intent was' for the
sentences to run in consecutive
terms. The lower court denied the
motion' and that decision was
appealed.
The appellate court noted
that it was the belief of the lower
court's judge that under the statute,
section 921.16(1), it stated that if the

court was silent on the issue, then the
imposed ~ are conseCutive. That
in order for them to be considered
concurrent, it would have had to be
specifically pronounced that the
sentences are to run concurrently.
Contrary to the sentencing
judge's belief, however, as the
. appellate court opined, section
921.16, Flonda Statutes, provides
that the "[s]eniences are concurrent
unless the court states that they are
consecUtive."
As it result, the appellate
court decided that the sentences in
this case were· statutorily required to
be concurrent. The lower court's
order denying the rule 3.800(b)(2)
motion waS reversed and the case
remanded for the lower court to
provide that the sentences .shall be
served concurrently.

was executed after the Apprendi
decision and p~Blakely, the same as
in Isaac's case. On appeal, however,
the Third District rejeCted Galindez's
contention, and opt agreement with
Judge Kahn's dissenting opinion in
Isaac.
In Isaac, Judge Kahn related
that Apprendi and Blakely, which
have no retroactive application, see
Hughes v. State, 901 So.2d 837 (Fla.
2005), cannot be applied to alter the
effect of a jury verdict and
conviction rendered prior to those
decisionS,
notwithstanding that
further resentencing proceedings are
pending afterwards.
In agreeing with the
dissenting opinion in Isaac, the Third
District
affinned
Galindez's
resentencing . and certified that its
decision was in conflict with the First
District's in Isaac.

[Note: This particular case involved
.two. or more offenses charged in the • Desue v. State, 30 Fla.L.Weekly
01775 (Fla. ]11 DCA 7125/05)
same indictment" information, or
affidavit
or· in
consolidated
In this case, a defendant
iridictments,
information 's, . or
argued that using Department of
affidavits.]
.
Corrections
(DOC)
records,
consisting of a computer printout
Ga/indez v. State, 30 FILL.Weekly
"Crime· and Time Report," to
DI743 (Fla. 311t DCA 7120/05)
establish the date he .was released
In this case, the third District
from . prison for purposes of
Court of Appeals has decided
determining eligibility for sentencing
contrary to, and certified conflict
as a prison releasee reoffender
with the First District's decision in
violated his right to confrontation as
Isaac v. State, 30 Fla.L.Weekly
explicated by the U.S. Supreme
D1582 (Fla. 111 DCA 2005), and
Court in Crawford v. Washington,
noted withinlhis issue of FPLP.
541 U.S. 36 (2004).
Alexander Galindez was
Regarding Desue's' argument
convicted in 1998, and the appellate
on appeal~ the First District opined
court, on January 13, 2003, reversed
that the very opinion which he relied,
and remanded
his case for
Crawford, refutes his argument. On
resentencing. It was opined that the
Sixth Amendment grounds, the
trial court had over-assessed
Crawford Court held "testimonial"
Galindez's victim injury points.
hearsay inadmissible against a
Following his resentencing on
criminal defendant who had not been
November 21, 2003, Galindez filed
afforded an opportunity to crossan· appeal. His complaint was the
examine, or where the declarant was
victim injury points were invalid
available to testify and be crossbecause they were assessed by the
exammed at trial. The U.S. Supret1le
~urt, rather than by the jury.
Court in Crawford stated that the
Apprendi and Blakely were cited in
prosecution's
use
of
support ofthe argument.
"nontestimonial" hearsay was not so
Apparently, Galindez argued
restricted: Although it "Ie[ft] for
this issue because his resentencing
another day any effort to spell out a

'Florida Prison Legal Perspectives
comprehensive
definition
r of
'testimonial,'" the Supreme Court
did not procrastinate when it came to
business records. These it excluded
from the definition of "testimonial"
in no uncertain terms, stating matterof-factly
that
most
hearsay
exceptions cover "statements that by
their nature [are] not testimonialfor example, business records."
Desue had conceded that the
"Crime and Time Report", was
admitted as' a business record. Also,
DOC's custodian of records, Diane
Thompson, testified that the "Crime
and Time Report" was an official
document copied from DOC records,
that an inmate's admit and release
dates are recorded at or near the time
the inmate is jailed or released, as the
case may be, and that records of
inmates' release dates are kept in the
ordinary course ofDOC's business.
Due to its findings, the First
concluded
that, the
District
Confrontation Claus~ does not
require
the
exclusion
of
"nontestimonial" hearsay that falls,
as do business records for which the
predicate is proven under Florida
law, within a firmly rooted exception
to the rule excluding hearsay. Thus,
Desue's sentencing was affirmed.
[Note: Compare Desue's case with
Gray v. State, 30 Fla.L.Weekly
01 776 (Fla. 111 DCA 2005); and
noted herein this issue of FPLP.]
.
Gray v. State, 30 Fla.L.Weekly
01776 (I" DCA 7125105)
On direct appeal, Maurice
Keith Gray contended that the trial
court erred in sentencing him as a
prison releasee reoffender because
the state presented only hearsay
evidence· to prove the date of his
release from prison.
In order to impose a prison
releasee reoffender (PRR) sentence,
the sentencing court must find that a
defendant had been released from
prison no more than three years
before
committing
another
enumerated offense' under that
statute.
See:
Section

775.082(9Xa)( I.); . Florida Statutes.
Orlless the defendant admits he was
released within' three years of his
current 'conviction," proof of .the
release date 'is an essential
requirement for sentencing pursuant
to the PRR Act. The state must
provide record evidence of the date
the defendant was released fro~ any
prison term or supervision imposed
for the last felony conviction. .See:
Glovei' v. State, '871 So.2d 1025,
1025 (Fla. 1" DCA 2004);:Sinclai; v.
State, 853 So.2d 551, 552 (Fla. 111
DCA 2003); and Boyd v: State, 776
So.2d 317,318 (Fla. 4lb DCA 2001).
In Gray's .case, the' sole
evidence the state provided' to
establish Gray's last release date was
a letter that depicted a DOC
employee's
declaration
.or
affirmation certifying' that the seal in
the letterhead was official, and that
Gray was released on a certain date.
The First District opined that
the document failed to .identity. the
official records on which it relied, if
any, did not state th8t it was a true
and correct representation of any
record, and did not say where or in
whose custody any original official
or business recordS' are ' kept. As
such, the evidence the state relied on
constituted hearsay, and the state
proved no proper predicate for its
admission under any exception to the
rule excluding hearsay.
Because the. state relied
solely on inadmissible hearsay
evidence regarding Gray's release
date, it failed to prove an e5'sential
requirement for sentencing pursuant
to the PRR Act. Thus', .,Gray's
sentence was vacated and his case
remanded for resentencing. ,
Keevis v. State, 30' Fla.L.Weekly
01901 (Fla. 2d DCA 8/1 0/0~)
Rusty Keevis 'had filed a
motion forpostconviction relief in a
trial court that claimed his counsel
was ineffective for failing to call
witnesses to his trial. However,
Keevis failed to state' that those
witnesses were available to' testify at
the time of his trial. :.. As such, the

trial court denied the claim without
prejudice for Keevis to refile a
facially sufficient claim.
On .appeal, the Second
District Court noted that the trial
court was correct to recognize the
holding Nelson v. State, 875 So.2d
579 (Fla. 2004), applied and that
Keevis, having filed a facially
insufficient claim, should be afforded
the opportunity to amend the claim.
However, rather than denying the
claim
without
prejudice,
the
appellate court opined that the trial
court should have granted Keevis
leave to amend the claim. according
to the language in Nelson. See:
White v. State, 884 So.2d 279 (Fla.
2d OCA 2004).
An amended' motion would
relate back to the date of Keevis'
originally filed motion, where an
order of denial could be found not to
relate back to the original filing date.
Allowing an amended motion would
prevent a trial court from
inadvertently denying a sufficient
claim as either successive or
untimely. See:, Bryant v. State, 901
So.2d 810 (Fla. 2005).
Therefore, the appellate
court reversed the order denying
Keevis' claim without prejudice and
remanded for the trial court to strike
Keevis', motion with leave to amend
his claim. ' It was noted in Bryant that
thi~-days was suggested as a
generally appropriate time limit
within which an insufficient motion
could be amended.
Further in this case, Keevis
had also claimed that his counsel
failed to impeach two witnesses that
However,
testified at this trial.
Keevis failed to allege either
deficient performance or prejudice.
As such, the trial court denied relief
on the claim.
Although the appellate court
affirmed the denial order of this other
claim, it recognized .a need of
uniformity in the procedure for
se,
facially
addressing
pro
insufficient claims of ineffective
assistance of counsel. Thus. the
, Second District certified a question
21

Florida Prison Legal Perspectives
of great public importance to the
.Florida supreme Court: "Should the
procedure of quashing .the order of
the trial court denying a facially
insufficient claim of ineffective
assistance
of
counsel,
with
, instructions that the trial court grant
appellant leave to amend the rule
3.850 postconviction motion, be
,extended to include claims of
ineffective assistance of counsel that
are insufficient as a result of a failure
to allege one or both prongs of the
standard set forth in Strickland v.
Washington,466 U.S. 668 (1984)1"
Clark v. State, 30 FIa.L.Weekly
01945 (Fla. 4th DCA 8/17/05)
In this case it was pointed
out the .importance of entitling
motions to the courts properly when
filing them.
Robert Clark entitled his
motion as "Defendant's Motion for
Expedient' Relief from Judgment
Entered upon Defendant for an
Uncharged Crime." After filing this
motion in January 2005, Clark filed a
"Motion to Rule' on May 5, 2005.
Apparently, Clark received no
response. or court ruling because
subsequently he filed a petition for
writ of mandamus in the appellate
court to compel the lower court to
rule on his initial motion. However,
Clark failed to show that he made
any effort to bring the initial motion
to the attention ofthe trial judge.
Most
documents
or
pleadings filed in the clerk's office
are merely stepping-stones, to a
hearing .or trial and do not require
immediate action by the assigned
judge. The clerk does not normally
review and interpret each and every
filing to determine whether a court
file needs to be forwarded to a judge
for action.
Normally" litigants
schedule an appointment for a
hearing with a judge's judicial
assistant in order to bring a matter,to
the attention of the judge and to give
notice of the hearing to all other
interested litigants.
It has been
acknowledged
that
there are
wriations' 10 this traditional manner
U

of handling matters before the trial
court. The variations are either
explained by local court rules or by
local custom and are easily
determined by discussion with the
judge's judicial assistant. If the
litigant does not know to which
judge tho case has been assigned, the
clerk of court can assist with that
information. See: Smartt v. First
Union National Bank, 771 So.2d
1232 (Fla. Sib DCA 2000). Even
where the litigant is pro se and a
prisoner, he or she must take some
responsibility to bring the matter to
the attention of the trial judge. See,
e.g., Powell v. Watson, 565 So.2d
845 (Fla. Sill DCA.l990).
'
The appellate court opined
that if Clark had properly designated
his motion as a rule 3.850 motion, as
such it appeared to be, then the clerk
would have sent it to the judge, and
mandamus
relief
would
be
appropriate. However, the clerk's
office cannot be held responsible for
determining whether a motion not
designated as a rule 3.850 motion is
in fact one.
It was further opined that
while a prisoner's ability to contact
the trial court directly is ,limited, a
letter to the judge requesting a
hearing or merely sending a copy of
the motion to the judge may very
well bring the matter to the court's
attention. Merely filing the paper in
the clerk's office does not
Therefore, the appellate
court denied Clark's petition for writ
of mandamus without prejudice to
Clark filing another petition after he
had fulfilled his responsibility of
bringing the matter to the attention of
,the assigned judge.
Contreras v. Stale, 30 Fla.L.Weekly
02045 (Fla. 3d DCA 8/31/05)
,
Raul Contreras appealed
from an order denying his Rule
3.8oo(a) motion that claimed the
habitualization notice provided to
him was not sufficiently specific.
The appellate court opined
that a notice deficiency of this nature
does not render a sentence illeg~d

under Rule 3.800(a) and must
therefore be raised in a motion for
postconviction relief under Rule
3.850. See: Cooper v. State, 817
So.2d 934 (Fla. 3d DCA 2002).
Unfortunately, under Rule 3.850,
Contreras' claim was found to be
time barred. Therefore, the appellate
court' aftlrmed the lower court's
order of denial.
Rodriguez v. State, 30 Fla.L.Weekly
02062 (Fla. 4th DCA 8/3.1/05)
,
This case on appeal
presented a question of whether a
trial court abused its discretion in '
denying a motion to sever a count
charging
Rodriguez
with
manufacturing cannabis from counts
charging him with armed· kidnapping
and aggravated battery. .
Rodriguez's charges for
armed kidnapping and aggravated
battery arose from an incident
involving his ex-girlfriend, Bernice
DeLa Vega. After DeLa Vega was
able 'to flee away from Rodriguez,
she called police. Subsequent to her
cal~ police confronted Rodriguez at
his home, requested and gained
Consent to search his home. During
the search, a crime scene technician
found 182 marijuana plants in one of
the bedrooms.
Rodriguez was
arrested and, later tried, for
manufacturing cannabis, along with '
armed kidnapping and aggravated
battery that he allegedly committed
against DeLa Vega.
Before trial,
Rodriguez
sought to sever the manufacturing
cannabis count from the other counts.
However, the trial court denied the
motion for· severance, reasoning that
the cannabis charge was the least
egregious, the least serious charge.
and would not inflame or otherwise
influence the jury in considering the
verdict.
Subsequently, the jury found
Rodriguez not guilty of the armed
kidnapping and aggravated' battery
charges, but guilty of manufacturing
caJinabis. Rodriguez, who had no
prior criminal convictions, 'was
sentenced to a maximum term of five

Florida Prison Legal Perspectives
'years· in prison on the cannabis
conviction.
On appeal, Rodriguez argued
that the cannabis charge should have
been severed and tried separately
.from the other counts. He contended
that there was .no significant causal
link between the criminal offenses,
and that joining them in a single
information and trying them together
resulted in harmful error.
.
Before permitting charges of
separate crimes to be tried together, a
trial court must· be careful that there
is a meaningful relationship between
the charges. See: Crossley v. State,
596 So.2d 447, 450 (Fla. 1992). The
.danger in improper consolidation is
that evidence relating to one crime
may improperly bolster the proof of
the other.
The appellate court found
that although Rodriguez's charged
crimes may have been connected
temporally and geographically, ~e
cannabis cultivation charge was not
similar to the kidnapping and
aggravated battery charge. A causal
link between them could not be
found either. In sum, there was no
meaningful relationship between the
charges. ·As a result, the appellate
col,Jrt opined that it could not find
that
the trial court denying the
motion to sever was harmless beyond
a reasonable doubt.
Due to the appellate court's
findings, Rodriguez's case· was
reversed and remanded for a new
trial on the manufacturing cannabis
charge.

E///s v. Florida Parole Commission,
30 Fla.L.Weekly D2035 (Fla. I ~
DCA 8/31/05)
In this case Derrick Ellis
sought to quash an order of the
circuit Court that approved the
Florida Parole Commission (FPC)
revocation of his conditional release.
Ellis did this by filing a petition for
writ of certiorari in the First District
.court ofAppeals.
.
Ellis' main argument was the
order of. the. FPC wrongfully
disregarded findings of the hearing

examiner, 'which were· based on
competent substantial evidence. The
FPC .replied that it had a right to·
reject 'the hearing examiner's
recommendation
because
it
constituted a conclusion of law rather
than a' factual determination.
The background of this case
was Ellis had been released from
prison and placed on conditional
release. His job had taken him out of
his home county and Ellis did not
have permission to leave his home
county. Ellis had explained and his
job supervisor confirmed the
explanation that Ellis was unaware
his job would take him out-of-county
till they were croSsing the county
line. He returned to his home county
that day after 'completing his work

of a Florida Department of Law
Enforcement, (FDLE) Jab report is
admissible hearsay evidence during a
trial.
Lorenzo Cephus Johnson
was charged and convicted of
possession of cocaine, introduction
of contraband (marijuana) into a
detention' facility, obstructing an
officer without violence, and
possession of marijuana. To support
the possession' charges and the
introduction of contraband charge,
the State introduced the testimony of
the officers who performed the
field
tests.
presumptive
Additionally, the State sought to
introduce the result of an FDLE lab
test performed by an Anna Deakin.
Johnson objected, and argued that the
task.
Jab report was inadmissible heanay
, . The hearing examiner found
and that its admission without' the
Ellis guilty of the violations, leaving
presence of the person who prepared
his home county and going to
the report violated his Sixth
another county without permission.
Amendment right to ~ his
However, the examiner specifically
accuser. Consequently, however, the
stated as part of the .disposition
trial court ruled the evidence
recommendation,: "[T]his examiner
admissible.
does not feel that releasee willfully
On appeal, it was foWld
violated the. terms and conditions of
whether the hearsay statement
his supervision and therefore is·
admitted at trial violated the Sixth
recommending that the releasee be . Amendment's Confrontation Clause
reinstated to supervision."
FPC
would be controlled by Crawford v.
rejected the recommendation '. and
Washington, 541 U.S. 36(2004). In
revoked Ellis' conditional release.
Crawfor.d, the Supreme Court did
The 'First District opined that
away with the reliability BnaIysis set
in order to establish a violation it
forth in Ohio v. Roberts, 448 U.S. 56
must be proven that the releasee
(1980),
in
cases
involving
testimonial hearsay. .
willfuJly violated a substantial
condition of release.
The
The problem the· appellate
determination of willfulness involves
court had to overcome was whether
the FDLE report was testimonial, itts
a factual deterinination.
The
technically .being .a business record
examiner's determination was based
on factual findings. .As such, the
because, it was found that 'in
FPC was in error to reject the hearing
Crawford, the Supreme Court noted,
officer's recommendation.
in dicta, that certain hearsay
Ellis' petition was granted to
statements are .by their nature
quash the circuit court order. It was . nontestimonial-such as business
concluded that the lower court had
records. The appellate court opined,
however, .that despite Crawford's
departed
from
the
essential
requirements of law.
suggestion that all business records
are nontestimonial, an FDLE lab
Johnson v.· State, 30, Fla.L.Weekly
report prepared pursuant to police
investigation· and admitted to
D2107 (Fla. 2d DCA 9n105)
The main issue involved in
establish an element of a crime is
testimonial hearsay.
See . other
this case was whether an admission

13

•

Florida Prison Legal Perspectives
supporting case law: Belvin v. State,
30 Fla.L.Weekly 01421 (Fla. 4th
DcA 6/8/05); Shiver v. State, 900
So.2d 615, 618 (Fla. lsi DCA 2005);
and People v. Rogers, 780 N.Y.S. 2d
393 (N.Y. App. 2004)(determining a
private lab result requested by and
prepared for law enforcement was
both inadmissible as business record
and testimonial hearsay violating
Confrontation Clause because its
purpose was to provide evidence
against the defendant).
A presumptive test by a field
officer is not sufficient to establish a
prima facie case, therefore, FDLE
reports are vital to the State's
prosecution. See: Futch v. State,
744 So.2d 540 (Fla. 2d DCA 1999).
The business records exception may
have been the vehicle for admitting
the report, but the vehicle did not
determine the nature of the out-ofcourt statement. It was opined that
the nature of the statement was one
.that intended to lodge a criminal
accusation against a defendant-in
other words, it was testimonial.
Consequently, there was a Sixth
Amendment violation because the
preparer of the FDLE report, Anna
Deakin,· was not deterrilined to be
unavailable at the time of the trial for
confrontation
Clause
purposes.
Therefore, the appellate court
reversed and remanded· Johnson's
case for a new trial on the possession
charges and the introduction of
contraband charge.
[Note: See also Rivera v. State, 30
Fla.L.Weekly 02144 (Fla. Sib DCA
9/9/05), that regarded a similar issue
where the case was reversed and
remanded for a new trial.]

Frazier, v. State, 30 Fla.L.Weekly.
02117 (Fla. 41b DCA 9f1/05)
The point. of interest in this
case regarded whether it was error to
summarily deny Marcia Frazier's
claim that her criminal Punishment
Code Scoresheet was incorrectly
scored, and the State had conceded to
the error.
. .·14

Apparently, the lower court's
sentencing judge was unaware that
·12 points for community sanction
violation was added to Frazier's
scoresheet in error. However, the
State contended that she was not
entitled to a re-sentencing because·
the same sentence could have been
imposed.
The Florida Supreme Court
recently held, in State \I. Anderson,
90S So.2d III (F,la. 2005), that the
record must conclusively show that
the same sentence would have
actually been· imposed. or it will not
be considered a harmless error.
In light of the Anderson case,
the appellate Court reversed the
denial and remanded for the lower
court to either attach conclusive
record proof that the same sentence
would have been imposed, or to resentence Frazier with a corrected
scoresheet. -

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Florida Prison Legal Penpectives

From the editor...
As this issue of FPLP goes to the printer in December '0'5 the Florida Department of Corrections (FDOC) is
reeling internally from ongoing state and federal investigatio~.In recent months investigations have resulted in
11 arrests ofdepartment personnel, ranging from the top to the bottom. With new revelations coming almost
weekly, we here at FPLP decided that the only way to present comprehensive coverage of recent events was to
run this combined issue covering the period from September to December. No doubt, ifit continues as it has,
there will be more revelations to come as the state and feds continue their investigations. FPLP will cover .them
as~~~
.

I have yet to talk to a fellow prisoner who was surprised by what is now coming out about the FDOC.
Corruption throughout the prison system is simply a fact of life to those who experience it every day.
Apparently it's only a short distance for those who are in control of criminals to cross the 'line into criminality
themselves. The temptation must be particularly hard to resist when the culture fosters and protects Wrongdoing.
The culture ostracizes those who won't adhere to the code ofsilence and punishes or gets rid ofthose
.
employees who can't or won't adapt to the culture. It's nothing new. Just the opposite, in fact, it's the way it has
always been in Florida prisons, and it's paSsed on from one generation of employees to the next.
The current investigations have focused on problems primarily at the Union CI, FSP, New River CI
complex, although similar problems exist within the FDOC from one end of the state to the other. And the
investigations have only revealed crimes that basically were forced in investigators' faces. There hasn't been
any real digging. If there had been, the resulting scandal ofjust how bad taxpayers are being ripped off would'
result in major changes in the prison system. Hopefully the investigations will contin~e and expand to give the
public a better understanding of the seedy reality of corrections in Florida.
Also in this issue is an article reporting on a citizen-initiated lawsuit that was recently filed against the
Florida Parole Commission (FPC). As all parole-eligible prisoners should know. the state Legfslaturewill again
consider replacing the current Parole Commission with regional volunteer parole panels, before whom people
up for parole will actually appear, during the next regular session that starts in March '06. We here at FPLAO
and FPLP think that is an excellent idea. Between now and then more citizen..initiated lawsuits are going to be
filed against the Commission, to either force its reform or give legislators the ammunition and support they need
to legislate reform. What parole-eligible prisoners need to do is have their families and friends call, write and
email state representatives and senators demanding (respectfully, of course) abolishment ofthe current FPC. If
we all work together, we can make it happen. Now is the time.
This issue of FPLP also contains the regular Notable Cases and Post Conviction Comer sections, both
published to help prisoners thread their way through legal situations, especially post conviction issues. Attorney
Loren, Rhoton, who writes Post Conviction Comer, is planning on publishing a self-help post conviction book
soon that will be useful to Florida prisoners. We'll inform FPLP readers when it becomes available.
You'll also see some new advertisements in this issue. Please let advertisers know you saw their ad in FPLP
when contacting them. Their ads help support this magazine and FPLAO.
And concerning support: FPLAO and FPLP depends on members' support to keep publishing and operating.
However, membership dues and advertising payments don't cover all the expenses. The rest has to be made up
through donations. If you haven't made a donation to FPLAO recently, please consider doing so. No amount is
too small or too I~ge, it all helps out and keepsthe important work being done. Thank You.
Bob Posey, Editor_

Florida Prison Legal Penpeetives ..

.,
Correctional Offenders
• Former FDOC Regional Director, Two-High-

prison complex in Starke, Florida. The bar, George's,
is a popular hangout for prison guards and the scene
of frequent brawls, according to police reports. The
guards charged were Kevin Barfield, 37,' Robert
Bonsall, 37, Joey Hill, 31, and Edwin Lee Johnson,
29. All work at Florida State Prison in Starke. Also
charged was Robert Craven, 37, of Starke, who was
released from prison in 1999 after serving almost two
years for caIrying a concealed firearm and trafficking
in stolen property.

Ranking COs Arrested. Updating the lead article in
this issue of FPLP: On Nov. 8, 2005, Florida
Department of Corrections Col. Richard Allen Frye,
36, and Maj. James Bowen, 33, were arreste4 and
charged with' felony battery stemming from their
alleged participation in attacking and beating former
prison guard James O'Brien at a banquet held by the .
Florida Council on Crime and Delinquency on Apr: 1
of this year. A warrant was also issued for Allen
• On Nov. 24 WTSP, Channel 10 TV, St.
Clark, 40, who resigned as a regional director of 13
Petersburgffampa, aired a special investigative report
North Florida prisons in Sept. Both Frye and Bowen
on the II pm news concerning an investigation of
were booked into the Jackson County Jail, where they
prison staff housing located on state-leased property
were being held without bond. Clark surrendered the
adjacent to Florida State Prison and Uriion
following day to Tallahassee police where he was
Correctional Institution near Starke, Florida. The
also arrested and charged with felony battery. A
televised investigation, revealed that a whole
spokesman for FDOC Secretary James Crosby said
community of taxpayer-built and subsidized housing
Frye and Bowen will remain on paid leave despite
for prison employees, their families and friends exists
their .criminal charges. Another- FDOC employee,
off State Road 16, largely hidden from the highway
Bradley Tunnell, was also placed on paid leave in
and public view. When investigators we'!t door-toOct. AJIegedly, Tunnell, the son of Florida
door asking questions in the community, (ew of the
Department of Law Enforcement Commissioner Guy
occupants would speak with them. One woman who
Tunnell, was not involved in the banquet beating but
did talk indicated she and others in. the development
was accused ofcoming to the banquet afterwards and
only pay SSO a month rent and all utilities are paid for
threatening a corrections offic,er.
by the state. She works as a secretary at a nearby
prison, although s,uch housing is only suppose to be
• Bringing Joints into the Joint. FDOC prison
available to security staff to have a nearby emergency
guard Michael W. Eberline was arrested and charged
response force in case of prison problems. Also
with introducing contraband into Zephyrhills
revealed was the fact that although such subsidized
Correctional Institution on July 24, 2005. Eberline,
housing is considered a job pe~k, the difference
24, a. five-year veteran with the FDOC, was caught
between the SSO monthly rent paid and fair market
with a partially-smoked marijuana joint in a cigarette
rental rates is not being reported to the IRS on
pack by a contraband interdiction team when
occupants'income tax returns. It is estimated that
reporting to work. A search ofhis vehicle discovered
several thousand houses and mobile homes are being
an unsmoked joint and IS more partially-smoked
furnished by the FDOC to prison employees around
joints, for a total of4 grams. On Nov. 9 Eberline
the state, all built or purchased and subsidized by
pleaded guilty before a Dade City circuit judge,. and
taxpayer money. During the course of the filmed
despite evidence coming forward that he had smoked
report by Channel 10 the television station's
marijuana two weeks before, he was only sentenced
helicopter was forced out of the air by guards at a
to 18 months probation and adjudication was
nearby prison and prison guards came to the homes
withheld to prevent him from having a felony record.
where investigators were filming and trying to
interview occupants and forced them to leave,
• On Nov. 12 four FDOC prison guards and an exclaiming the community was on state property and
prisoner were arrested and charged with offenses
restricted to the public, Contacted later, Gov. Jeb
ranging from disorderly conduct to resisting arrest
Bush and Attorney General Charlie "Chain Gang"
stemming from a fight at a bar near the sprawling
Crist had no comment on the investigation's findings.

•

Florida

Pri~on

Legal Perspectives

LITIGATION UPDATES
• Recently, word was received from attorney Peter.
Siegel, at the Florida Justice Institute, that the
prisoner class in the Close Management (CM)
litigation case (Osterback et al. v. Crosby) is going to
trial during the federal district court's next trial
calendar. It should take place sometime after Feb.
2006. Although the case has resulted in numerous
'charges in the FOOC's CM confmement policies, the
prisoners' class attorneys believe a trial is necessary
now because of the FDOC's continued and repeated
breaches of the settlement agreement and physical
and psychological abuse of prisoners that is occun:ing
in the CM units.

+ In March 2005, Judge Rassmussen, of the First
Judicial Circuit Court, on remand, issued a
declaratory judgment in Case No. 00-600-CA-Ol,
that the 1996 repeal of Rule 100-7, Florida
Administrative Code, was an irtvalid exercise of
delegated legislative authority. This was in line with
the appellate court's holding in Osterback v.
Agwunobi, 873 So.2d 437 (Fla. 1st DCA 2004). (See:
FPLP, Yol. 10 Iss. 4., "Back From the Dead: Revival
of the Prison Health Code," pgs 1-4.) However, the
Dept. of Health now claims the circuit court lacks
jurisdiction and appealed Judge Rassmussen's
judgment. All briefs have been filed and an opinion
should be issued between now and August 2006. First
DCA Case No.1 005-1848
• On July 28, 2005, Judge John Moore, of the federal
Middle District Court of Florida, after ~ bench trial
held June 6,. 7 and 8, 'OS, ruled against plaintiff
Prison LegalNews in the lawsuit brought by PLN
against the FDqC for censorship ·and prohibiting
prisoners from receiving compensation for writing
for outside publication. (See: FPLP, Vol. 10, Iss. I,
pgs. 4-5 and Yol. 10, Iss. 6, pgs. 5-6.) The judge
ruled that the FDOC has legitimate penological
interests in preventing prisoners from writing for
compensation and that the FDOC has shown PLN did
not suffer any First Amendment injury in the
censorship of the publication because of its phone
call services and pen-pal ads, and since FDOC will
no longer censor the publication for such ads. PLN is
appealing Judge Moore's decisio~ to the 11 th Circuit
Court of Appeals. PLN v. Crosby et aI., Case 3:04CY-14-J-16TEM. [Note: The FDOC also claimed
that all previously rejected issues of PLN have been

delivered to prisoner subscribers. If you did not
receive your rejected issues of PLN, please notify
Randall Berg of the Florida Justice Institute. It
appears that FDO<;'s claim in this regl;lI'd may have
been false and constitute fraud upon the court-bpJ

+In FPLP, Vol. l1,ls8. 3, the case Smith v. FDOC,
30 Fla.L.Weekly D1299 (Fla. 1st DCA 5123/05), was
reported concerning the First DCA's decision that
FDOC's legal photocopying fees rule is invalid since
. no statutory authority exists authorizing such a rule..
The FDOC subsequently motioned the DCA for
rehearing, rehearing en banc and requested the court
to certify a question to the Fla. Supreme Court. Those
motions and request were denied. The FOOC then
petitioned the state· Supreme Court. for review and
motioned to stay the DCA issuing its mandate. As of
the end of Nov., the motion to stay mandate has been
granted, but the high court had not yet granted
review.
FPLP will continue to provide updates on the
above cases as they proceed. _ .

!M.erry Cnristmas
~ntf

J-fappy !New 'year
:from everyone
at
:fPLP,

S7

Florida Prison Legal Perspectives

III

CENTRAL OFFICE DIRECTORY ·
FLORIDA PAROLE COMMISSION,
2601 BLAIRSTONE ROAD, BUILDING C,
TALLAHASSEE, FL 32399-2450
(Web site: www.state.fl.us/fpclindex.shtml)
,

COMMISSIONERS

Monica David - Chairman......•....................•..•.•............••............. (850) 487· 1978/SC 277·1978
Frederick B. Dunphy - Vice Chairman.......•......' '..................
(850) 488·04761SC 278-0476
Tena Pate - Comm~sioner Secretary
;........................ (850) 487· 1980lSC 277·1980
OFFICE OF GENERAL COUNSEL
Kim Fluharty - General Counsel

;

(850) 488-44601SC 278-4460

OFFICE OF CLEMENCY ADMINISTRATION

CarOlyn W. Tibbetts-Director

.

~

(850)487-1175ISC277-1175

OFFICE OF EXECUTIVE CLEMENCY

Janet Keels- Coordinator............

(850) 488-2952/SC 278-2952

DIVISION OF ADMINISTRATION

Fred Schuknecht - Director
:..........
David Dawkins - Human Resources Administrator.............
(vacant) • Accounting and Budgeting Administrator..........................
John Douglas -Information Services Administrator.......................
Jane Tillman - Public Information and Legislative Affairs.............

(850) 488-341SISC 278-3415
(850) 488-3417/SC 278-3417
(850) 921-281SISC 291-2815
(850) 488-34181SC 278-3418
(850) 921-28161SC 291-2816

DIVISION OF OPERATIONS

Director......................................................•.• (85.0) 488-06111SC 278-0611

.

REGIONAL ADMINISTRATORS .

,

Joseph "Mike" Hamm - Region One Administrator............
MiUs Rowland - Region Two Administrator..................
John FrankS - Region Three Administrator
:...
Donald Henry - Region Four AdministrtZtor..
.....•••••
Harv Buckner/Charles Stockton-Region Five - PE Supervisors

•
(850) 921-61OO/SC 291-6100
(904) 782-9839/SC 821·5496
(321) S04-20341SC 362-2034
(305) 228-2266ISC 479-2266
(813) 272-26421SC 512-3546

TOLL FREE ACCESS

VICTIMS.•..................... ~..................•

......••.•••....•.

1- 800- 435- 8286

~
.tbtt~

FLORIDA PAROLE COMMISSION ORGANIZATIONAL CHART

l(

(CHAIRMAN

)(

COMMISSIONERS

I
•
•

I

[
•
•

•

GeDtnl CoIUllCl

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Administer Em;lIoyment Progam
Audit Attendance and Leave

( Ocmcacy AdmIDIsCratiOD )

ProvIde Legal Counsel to the CommIS1Ion
R~ Agency In Ccurt Actions and

•. lnvestlgate CopItol Cases
•
ComplIe field IrMlstIgations
• Transmlt CommlssIon's Reeommendo1lons to
Bood 01 Executive Clemency
• RevIew &Pratlon of· Sentence Coses for
EI{jbi5iy for Restoration 01 CvIllllghts.
•
ComplIes Waver Repolts
• EYaluofes IJlegal Alens for Deportolion

AdlrilllstratlWl Proceedings
.
~e Admlnlsliutive Rules

•
•
•

CooIdlnate Training
Prepare PoyroIs
AdmlnIster Peffonnoncel OIsdplne
Ac:tMtIes
Advise Management and
Employees on PeIsonneI Matt815
Coordnote HR programs with
People first

Repolts

•
•

•
•
•
•

WAN/lAN Adnillistlullon
Applcatlon Development
Office Automutlon
Harclwore/Softwulll Mantenance

.

8DdgcdDa.

)

•
•

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Prepare LBR
Prepare Long Range PIOn
PnHJudt 8lCP8ndihns
Ensure CCCUIUCY of flnandaIl8COtds

Co

The 0Iflce of Elc8Cutlve OBmency is
Responible for the Matt815 01 ececutlve
08mency RequbIng Approval of the
GoYemor and 1tvee MembeB
nf thA C'".nhInAt

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• Direct Statewide COntrol ReIeose .

. CommIsston
.
Conduct Revocotlon HllOIIngs
• cenduct COllullisslon
.

•

•

•
•
•

InVeslIgatlons
Conduct flIe R8'IIews and Mate . •

Recommendations

•

CondUct 08meney
Invesllgalions

•

•
•

•
•

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e
:!.

~

• send RecommendotJonS to

•

-

( Ellecatlve Clcmaacy' )

• .Conduct Parole lnfeMElWs

•

(

Review cases Presented to the commission
.
Vote las Panels) on Cases
Conduct Revocotion Hearings
Conduct Copltal Purishment InfeNIews

a

[ - - eft - - ) (r----.RegIo-IIlIIOfIIaI-)
•
•

•
•
•
•

Chief Administrative Officer
Plan, Direct, Coordinate and
Execute the Powers and Dutles
A"!gned to the Commission

I

•

.'
Ac:tMfles
•
MonItor PlIson Populatlon
•
Prepare CommIsslon Agenda
•
Prepare VIsItor Ust
•
Prepare CommIssIon Voling Docket
As1ist VICtimS at POItlIe liealngs
•
Conduct VIcflm location Invesllgatlons.
Record <:ommlssIon Vote on 0fflclCIl
Docket
•
Process Pa:ole & ConcItIonaI Release
CertIficates .
DIrect Statewide ConditIonal Release .
Acllvltles
Coordinate; Changes & Modifications
to Conliol & ConcSIonal Database
Programs

~

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I'nlc:ess VloIution RepoIts
PrePare Wcmunts

Am8ndIQlsniu Wonunts

CoQfdlnale ExlrudItIorlS
SchealAe Revocation
HearIngs for CcmmIs1IoneIS
Prepare & I'nlc:ess ROR Ord81S
Process Healtngs. WaJv8l5, &

Prepare"

SupeMsIon RevIews

Prepare and SChedule RnaI

CommIssIon Actions

. Florida Prison Legal Perspectives

FLORIDA PAROLE COMMISSION

omcx

MILTON

MIke IIamm, AdmD..
(850) 983-5913

SC

68

.

MlkeIlaDml- AlIma.
(850).627-8436

MIDI RowIaDd, Adam.

(904) 782-9839
SC 821-5496

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4 - - - MIDI RowIaIld,Adam.

(904) 348-2610
SC 870-2610

.

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Jolm F'raDkI-·AdmD.

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(321) 504-2034 .
SC362-2034

Jolm FraDbi AdIIm.

, (352) 401-5448
SC 667-5448

......~-lNDwrroWN

»oD BeDl')', Adam.
. SIIe11a Roberti, PE sapv.
(772) 597-1426

1'4MlA
IIaJv helmer, PE Supv.
(813) 272-2642
SC512-3546

ABCADIA
CJwfa Stocldoa, R Sapv.
(863) 993-4624' ~.
SC740-4624

.

.

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DoD 1IeDrJ'- Adam.

(305) 228·2266
SC479·2266

30

Florid~

Prison

~f:!gal

,,

Perspectives

RO.IDIiIII~~U.iAlD!OB.llAlIOII~'IIIC.

I

BECOME A MEMBER
YES !

1 wish to become a member of FloIjda
Prisoners' Legal Aid Organization, Inc.
1. Please Check ~ One:

3. Your Name and Address (PLEASE PRINT)
.

,

a

Membership Renewal'

_______________,DC#
Name

_

a

New Membership

-:----;:-::---::--:--:--":"::'---:-------

AgencylLibrary/lnstitution IOrgl

2. 'Select ./ Category
(] $15 Family/Advocate/lndividual

Address

(] $10 Prisoner
City

.State

Zip

(] $30 AttomeyslProfessionals
(] $60 Gov't AgencieslLibrariesiOrgsJetc.

Email Address and lor Phcne Number

Please malce all checks or money orders payable to Florida Prisoners' Legal Aid Org., Inc. Please complete the above form and send it along with
the indicated membership dues to: FPLAO, Inc., P.O. Box lSI I, Christmas FL 32709·1511. For family members or loved ones of Florida prisoners
who are unable to afford the basic membership dues, any contribution is acceptable for membership. Memberships run one year. Ifyou would like to
make a donation to FPLAO, Inc., to help the organization continue its work for prisoners and their families. send donations in any amount to the
same address. Thank You. All m,embers receive Florida Prison Legal Perspectives.
'

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

UoSo fucarcmtiolDl Levells
Set New Record
WASHINGTON-According to a new' report released
Oeto~ 23,2005, by the Justice Department's Bureau of

Justice Statistics, the number of people incarcerated in the
U.S. grew by 1,9 percent in 2004 to a total now of almost
2.3 million people. That number includes 1.4 million in
state and federal prisons, 713,990 prisoners in local jails,
102,338 in juvenile prisons and the rest in immigration,
military or Indian jails ~~PC~~
.

- NOTICEThe mailing address for FPLAO, Inc., and
Florida Priso/l Legal Pe1".\pectil,L',\' (FPI.P) has
changed. The new address is as fullows. Plt,'ase
send all mail for either FPLAO, Inc., (/I" FPLP to
this new addn.·ss:

P.O. Box 1511
Chdstmas FL 32709-1511

State prison populations increased by 1.8 percent
last year, with about half that growth in just three states:
Florida, Georgia and California.
The Sentencing Project, a Washington, D.C.
group that promotes prison alternatives, says the U.S.
in~mtion mte--724 per 1OO,OO~is 25 percent higher
than any other country. in the world.
The Justice Department report also notes that
about 8.4 percent of our nation's black men ages 25 to 29
are. in state or fedeml prison, compared to 1.2 percent of
whtte men and 2.5 percent of Hispanic men in the same
a~ group. Blacks make up about 41 percent of prisoners
WJ~ a sentence of one year or'more, according to statistics ,
in the report. 3i
IL
. " "~';~i~\

PRISON LEGAL NEWS

SUBMISSION OF MATERIAL TO
FPLP
Because of the large volume of mail being
received. finlUlciai considerations, and the
inability to provide individual legal assistance.
members should not send copies of legal
documents of pending or potential cases to
FPLP without having first contacted the staff
and receiving directions 10 send same. Neither
FPI.P. nor its staff.. arc responsible for any
unsolicited material sent
Members arc requested to continuc sending
news information. ne.....spaper clippings (please
im::luLl~
I

name

of

paper

nnd

date).

memorandums. photocupies of tinal decisions
in unpublished cases. and pOlential articles for
publication. Plcasescnd only copies of such
material that do not have to be rClUmed. FPLP
depends on YOU. its readers and members to
keep infcnned. Thank you for your
cooperation nnd participation in helping to get
the news oul. Your efforts arc grcatI).
appreciated.

41,.

Prison Ugal ~ is 0
maaddy mI;IlIZirrt
wbidI tms been published Iinc:c 1990. Each issue is
pac:tcd \\'ida suammries ad ID!I)'sis of tCCIIIt court
dcciIkm &am IIaUDcI d!c axmtry dcIfin8 ~
~ righD and written 80m a prisoner
1· ~ Tbc mapziac otlaa cmria llttida
o;r-~ gMag bawofD JiIigIdan 8Iiv&:c. Also
•fndudcd fa each laue arc news artidcs cbIing with
~ i:tJvgIc ODd adi\'iIm fiarft et&c u.s.
aftd'aoumIlbc wortd.
Annual subscription rares arc $18 for prisoners.
II yOaI can"t zdTard SI8 at ona:. scad at last 59 and

PLN will prorlte die issues at SUO cd COt D six
month IUbscription. New l!ftCf unused IJCllSfBaIC
stamps or anbasscd CGYdopes may be used as
paymad.
For ~ individuals, dtc yenr
subscriptkm nile is W. fftsIitutiorIaI or IJI'Of'cuioMI
(attomc)'s.
tihmics.
agcncics.
OIglIDizmkm) subscription rnfa me S60 I) )'GU'. A

, I

If so, please complete the below information' and mail it to FPLP so
.

"

I·

. ' .....

;'

• i'

that the ~niling list can be updated:

~

. ~.\·NEW MlDRESS
.; "

I

,.

(pLEASE PRINT CLEARLY)

~'

~

~.

'/

.

Name

In st.

soverrun=

sample copy of PLN is availllbtc: COl SI. To
subscribe to PLN CllftJ.2CI:
Prison lcpI News
2400 NW gO$ ST. #148

Sa:tttc. WA 98117
(206l246e1022
http"/",-.prllM/~trnlfS.tII'g

Address
Cit)"

State
~M '1 t
"

01

FPLP P.O. Box 1511
Christmas. FL 32709-1511

0:,

(OrdaS acccpt.ed bi ph8 er-oiiIiie)

VOLUME 11 ISSUES 5&6

Florida Prison Legal
Perspectives

P.O. Box 1511
Christmas, FL 3270;'"1511

SEPT/DEC 2005

NON-PROFIT
U.S. POSTAGE

PAID
QVIEOO.FL
PERMIT NO. 65

!

'\i:.
"":

.....

~