FLORIDA PRISON LEGAL

ers ectives
Circuit CourtJDCA Engaged
In Crusade to Roll Back .Court
Access for CoUateral Criminal
Proceeding Litigants
by Sheni Johnson

Tallahassee's Second Judicial Circuit Court joinedby
the First District Court of Appeal are cOllaborating in
an effort to force the Florida Supreme Court to recede
from, or at least limit, its 2003 decision in Schmidt v.
Crusoe. In that case the high court held that ipdigent
prisoners who bring court actions that could
conceivably reduce .their time in prison, termed
collateral crimiJial proceedings (such as challenges to
gain time forfeitures, loss of gain time from
disciplinary actions, adverse parole decisions). are
exempt from the filing fees and inmate account liens
imposed by § 57.085,· Florida Statu~, that was
enacted in 1996 to reduce frivolous prisone~ lawsuits.
That circuit court. compl~ning that the Schmidt
decision has greatly increased the number of cases
being filed by prisoners in that court. has rebelled
agliinst the decision by deliberately imposing .ilIegal
liens against collateral criminal proceeding litigants
and ordering their money to be illegally seized by the·
Department of Corrections. This in an attempt to .
force the Supreme Court ~o fashion new limits on
court filings.
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THE
INSIDE

The court of appeal, caught in the middle, has
so far complied with the law and Schmidt decision
but has recently issued decisions itself tending to
favor the circuit court. While the circuit court's
apparent goal is to reduce prisoner litigation, its
illegal actions have actually spawned increased
litigation and threatens a breakdown in the rule of
law.
If the Second Judicial Circuit Court is
successful in erecting more roadblocks to prisoners'
access to court, there is a concern that it may translate
into in...reased threats to security inside the prisons.
When you take away the ability of people to seek
relief from wrongs that affect their liberty, you often
create despe!8te people and destroy any faith they
may have had in justice or the law.

B

efore the 1970s, going to prison in America,
whether it was in state or federal prisons, was
often an experience likened to a descent into hell. Back
then there was little or no oversight over the prisons and
prison officials and staff were essentially free to run them
anyway they wished and treat prisoners anyway they
wanted.
Documented accounts of inhumane abuse,
neglect, extreme overcrowding. violence and widespread
sexual assaults in the prisons exist from that period.
Congress and state legislatures were reluctant to provide
adequate funding to

S - -.- ... - -. -- -. - - Up at Women's Prison ,
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SEPT/DEC 2006

ISSN# 1091·8094

VOLUME 12 ISSUES/6

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Notable Cases
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U.S. Supreme Court
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Confronting Confinement...............................•...................... .22~
Mail From Readers
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Florida Prison Legal Penpeetives
:"LORIDA PRI80NLEGAL PERSPECTIVES

Wllen

7-1.: .,

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" P.O. BOX 1511
;f/' 'CHJuS~S,FLORIDA 32709

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Publishing Division of:

. 'FLOR'DA PRISONERS' LEGAL AID ORGANIZATION, INC.
; .• -'I •. ,.

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A 501 (c) (3) Nan-proftt Orpnization
E-mail: fpIp@aol cqm
Website: www !bIRO,OrB

", ,PLAG DIRECTORS
Teresa Burns-Posey
,.

prisons, after all, they were· largely considered to.. be a
necessary evil, best operatedout-of-sight and out-of-mind
with bare minimum expense., But it couldn't fast.
the conditions became'so b~ as ~ be humanly unbearable
prisoners revolted, andcO~uently drew media and'
public attention to what was really going on behind prison ,
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walls and fences.
Another consequence was that where tJefore"'the
courts had adopted abands-off approach to priSoners'
plights, generally refusmg to recognize that they bacf iny
rights, with the'increased scrutiDy the courts began to open
their doors to prisOners~"
,"
The fedCral courts decided that prisoners did' in
fact have a constitutional right to· access to theeourts to
challenge prison conditions. Over the next tWo~es, .
largely through prisoner-initiated laWsuits, entire priSon'
systems were dragged, often kicking and Screaming, into
the twentieth· centuJy 'through judicial oversight . The,
foundations were la)'ed out as to just wh8t'rights prisone,a,
had and over.time conditions in the prisO':!s improved. ' , "
Prison officials, and lawmakers who had tb
support the improvements with funding, weren't very,
happy about the cbanps. . Gone were, the days whe~'
prison officials and staff had' free rem to treat prisonerS
anyway they wanted without fear of being held
accountable. LaWmakers had to shave the pork to ~e
up with funding to make prisons' Safer, ~uce
overcrowding, and . provide adequate health care, which
many of them' considered unnecessary' and coddli!tS
prisoners.
,
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, The backlash came in the' mid-I990s when -a'
concerted effort by conserVative federal' laWinW~
supported by pris9n' officials nationwide,: paSsed ·'lbo',
Prison Litigation Refoim Act of 1995 (pLRA), whic~ ~ .
signed into law by President Clinton. The PLU's
purpose, according to its supporten, bto cUrtail feeteiil'
civil rights lawsUits being filed' by prisoners over t)le
conditions oftheir confinement,'many ofwbich are legally.'
mvolous. To bolster p8ssageof 'tile 'PL~ la media
campaign was ron to convince the pubtic'th8t the majh~tV
,- of prisoners' lawsuits ire mvolous and coSt t8xpayers trlba'
of money.
In fact, statistics compiled. by 'thb':
Administrative Office ofthe U.S; Courts show thafonly I
very small 4.8 perCent of prisonerS' civil' rights ~U!ts ,were.
dismissed JtS legally or factually frivolouS in f#~' ~ ,
.19901, compated to the 15 percent that~ailed.; .: ,; , ' . "
Nevertheless, the PLRA becanie faw. Within flvh'
years Of itS emu:tment it CUt the number offeder8J 'Iawsui~ ,
filed by prisoners in balf and court monitoring'of prisons
dropped dramatically. The PLRA not only contaiJis
provisions to discourage prisoners from filing civil rights '
suits, but also provisions to discourage courts frOm'
granting them relief, discoUl'8geprlson officials fronl,
settling suits with prisoners, and to discourage attOme)'S' .
from representing ,prisoners in such suits.
":.,'.,'

'Bob Posey, eLA
David W. Baut!r, Esq.
.Loren D. Rhoton, Esq.

. FPLP8TAFF
Teresa Bums-Posey
Bob Posey
Sherri Johnson
Anthony Stuart

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Florida ,Prison Legal Perspectives
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To discourage prisoners from filing federal
lawsuits the PLRA. in part, mllQdated ~ indigent
prisoners would no 'longer have filing fees and '?Osts
waived. Instead, if they couldn't pay, liens are placed on
their prison bank accounts and when and if they receive
any money it is taken to satisfy the court liens. That,is a
heavy disincentive when prisoners receive little money to
begin with.
'
florida Follows Sait
Shortly after passage ofthe federal PLRA. several
states, including Florida, adopted similar state laws to

discounge prisoners from turning from the federal courts
to the state courts to seek relief.
In 1996 Florida enacted § 57.085, Fia. Stat, the
Prisoner Indigency Statute. Like the PLRA. Florida's.act
imposes often insunnountable financial burdens on poor
and indigent prisoners by requiring liens to be placed on
their prison bank account to recover filing fees and costs
for bringing civil lawsuits in the state courts.. At the same
time, another statqte was enacted, § 944.279, to allow
prison officials to punish prisoners with confinement and
loss of gain time when a court finds that they,have filed a
frivolous or malicious civil lawsuit.
Pertinently, .both of those 1996 laws expressly
provided that they do no apply.to criminal or collateral
criminal proceedings filed by prisoners. The Legislature
realized diat it was necessary to exclude criminal and
colJater&1 criminal prOceedings from laws, designed to
curtail prisoners' access to the courts to avoid a serious
question to their constitutionality.
Habeas corpus
provisions in both the U.S. and Florida constitutions fairly
guarantee all persons, eVen the indigent, free access to the
courts to challenge, wrongful convictions or sentences,
which would naturally extend to situations that would
require a person to wrongfully spend more time in prispn•. "
:.
There was. a cOnsequence. of the laws, however,
that was not foreseen at the time.
.
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In Florida, a1ihoUgh habeas corpus constiiutional '
and statutory provisions stili exiSt on the boQJai, ovii)!te
years, for various reason$, the traditio~ remedies'of
habeas corpus :have be:en replaced by a variety of oth~r
fonus ofremedies and liiigational vehicles to seek relief.
For, example, where many, years ago a state
petition for writ ofhabeas corpus would have been proper
to challenge "collateral criminal" issues that could not
lu}ve been or that ,,:ere not raised on difec?t appeal of a
cr:iminal conviction or.sentence, ~ow what are termed wst
conviCtion motions, wider rules 3.800 and 3.850, etC., of.
the Florida 'Rules of Criminal Procedure, are the
esta1)lisbecl and only available rem~iq. Unlike ,habeas
corPUs, which was to always be freely available, these
habeas corpus derivative remedies include restrictions aDd
requimnents that limit their availability.
There also exists other "collateral criminal"
situations that don't directly stem, from a criminal

conviction or sentence;but that results in a person doing a
longer time in prison on the criminltl sentence for which
habeas corpUS relief is no longer available. SUch
situations generally include improper or wnmgfta1
calculation or forfeiture of gain ~m~, i.e., credit for·time
off a sentence that is mandated or authorized by law.
Unless immediate release from prison would result from a
successful court challenge to a situation involving an
improper or wrongful lengthening of a sentence. babeaIs
corpus relief is not available.
Instead, over time the courts (where DO special
procedure or remedy was ever created by the Legislature
to allow prisoners to seek relief) have established that in
the majority of such situations where a successfUl
challenge would only mean a shortening of the time spent
in prison (e.g., in most challenges to in-prison disCiplinary
actions where. gain time was taken or prevented from
being earned, or most improper calculations of gain limo
by prison officials, etc.) the only 'available judicial
remedies are through traditional extraordinary writ
petitions-usually a petition for writ of mandaDl\15which are considered "civil" .not "criminal" milodies.
Those procedural vehicles really didn't fit the sitUatiOD,
but they were all that were available to the courts to give
prisoners some means ofbringing such challenges.
For example, a petition for writ of mandamus is a
civil action normally used to compel a government official
to perfonn a nori-discretionary ministerial duty, not to
review decisions of an administrative agency such as the
. DeP3rtment 'of Corrections (DOC) to determine whether .
disciplinary action was properly taken or whether, pin
time was otherwise properly credited, withheld, or
forfeited. Such hybrid application created conNsion for
years and created another problem once the Legislature
enacted the Prisoner Indigency Statute in 1996.
A Failare to Distinguish

Prior to passage of Florida's ,Prisbner Indigency
Statute indigent prisoners, like any indigent citizen, could
petition' the courts'for' a waiver of circuit coUrt filing fees
and court costs to bring 'a. civil lawsuit' or a c;ivu '
extraordinary writ petition challengiqg a ~i~OD that
affected the duration oftime spent in prison; 'Such'waiver
could also be obtained to pUrsue any appeals from adverse
decisions made by the circuit courts in such cases.
After passage of the Prisoner Indigency Statue,
however, indigency waivers ~ere Jl<) IQoger, avai~le ,to
prisoners filing civillawsuits'in the state courts. Instead,
under the statue, unleSs filing fees and'costs were paid up
front,. the' courts required prisoners to file a six-month
printout of their inmate bank accounts and, if insufficient
funds existed in same to cover fees and costs, an. order
from the court 'would direct the DOC to place a lien on the
account and send any. money received by the prisoner to
the court until the fees and costs were paid. And aJ1housh
the statute provided that the lien only applied to Iiioiley 3

Florida Prison Legal Perspectives

4

more than SIO deposited in the account (ostensibly to
allow indigent prisoners at least SI 0 to buy hygiene items,
etc.). the DOC never complied with that provision. The
DOC froze all money deposited in such accounts until the
amount built up through deposits (even if it took years to
do) to cover the court fees and costs. then took it all and
sent it to the court. (This illegal practice is stiU utilized by
the DOC, its own little contribution to discourage
prisoners from filing lawsuits involving the department or
its employees.)
Another problem-arose. however. when the courts
failed to distinguish between "civil lawsuits" and "civil
extraordinary writ petitions" (that were "collateral
criminal proceedings" filed by prisoners) in requiring
compliance with the Prisoner Indigency Statute. To the
courts. especially the Second Judicial Circuit Court and
First District Court of Appeals in Tallahassee. there was
no distinction between "civil" lawsuits and "civil"
collateral criminal proceedings were the Prisoner
Indigency Statute was concerned. It's in those two courts .
were prisoners have to file most actions against the DOC
or Parole Commission due to the "home venue privilege."
a doctrine allowing agencies to require that court actions
be brought against them in the venue where their
headquarters are located.
After the Prisoner Indigency Statute was passed,
those courts began requiring all indigent prisoners to
comply with it and either pay all court fees and costs up
front or suffer having their money taken regardless of
whether they filed a civil lawsuit challenging prison
conditions or an extraordinary writ petition involving
collateral criminal issues, and any appeals from same.
. That situation went on for years. During that
period only a few prisoners realized that the § 57.085. Fla.
Stat.. indigency provisions did not apply to collateral
criminal proceedings. In instances where those few
prisoners protested those courts requiring prepayment of
court fees and costs or tried to require compliance with §
57.085'8 other provisions. those courts usually backed
down and waived the fees and costs rather than allowing
such to be challenged further. Most prisoners. however.
were hit with the fees and costs or liens for same. .
The result was a significant reduction in the
number of prisoners filing writ petition collateral criminal
proceedings., . .
That pleased both the courts. as it reduced their
workload, and the DOC. as it meant less challenges to
improper or even illegal Withholding or forfeiture of
prisoners' gain time. For the DOC it also meant a
substantial drop in the number of prisoners challenging
flawed disciplinary actions involving the loss of gain time.
That alone was a big benefit to prison officials who
frequently. without regard to right or wrong, or Due
Process. or the department's own rules, impose arbitrary
disciplinary action on prisoners.
With prisoners
discouraged from going to court to challenge such

disciplinary actions, there was even less reason for prison
officials to "waSte their time" being concerned about
following the law or rules.
Everybody was happy with that arrangement.
except prisoners, who were having their access to the
courts curtailed and obstructed.
Attempt to Extend Stymied
Some courts. drunk with their new found freedom
from having to handle prisoners' civil lawsuits (of which
few were ever filed in the state courts to begin with) or
civil writ petition collateral Criminal cases, actually sought
to .extend the Prisoner Indigency Statute to cover.
prisoners' criminal post conviction motions, which had
never had any filing fees or costs· associated with them.
That attempt was quickly quashed.. Only' one year after
the Indigency Statue was passed, the Fifth District Court
of Appeal in Ferenc v. State. 697 So.2d 1'262 (Fla. 51997). conclusively held that the Prisoner Indigency
Statute does not apply to post conviction motions because .
they are collateral criminal proceedings (and progeny of
habeas corpus).
In 2001 the Florida Supreme Court clarified that
the Indigency Statute does not apply to writ petition cases
challenging a criminal conviction or sentence as they aro
collateral criminal proceedings in Gefflam Y. Strickler, 778
So.2d 975 (Fla. 2001). But that c.ourt added confusion by
opining without supporting authority that the dcollatera1
criminal proceeding" exemption in the Statute, at §
57.085( I0). Fla. Stat.. "means that if an inmate files an
action which is considered a 'collateral crimiDal
proceeding.' and that the court finds that 'the inmate is
without funds to pay for the action.'i.e., that the iiunate is
indigent. the inmate may. in some circumstances. be
considered completely exempt from the parti8t payment
provisions ofthe statute." [d. at 976.
That court did not explain its "some
circumstances" statement or where the authority existed to
require any prisoner to pay any fees or costs for filing any
"collateral criminal proceeding.... which are nothing more
or less than habeas 'corpus' actions by a different name.
Florida law provides that habeas corpus petitioners cannot
be charged any such. fees or costs, even if they have the
ability to pay. See, Chapter 79. Fla. Stat.
Neither of' those cases addressed other type
collateral criminal ·proceedings. i.e.. those that did not
challenge a criminal conviction or sentence. b~ instead
challenged some'other issue that affected the amount of
time done on a criminal sentence. And so the lower courts
continued to require prisoners' to comply with the fees
and costs provisions of the Prisoner Indigency Statute in
those latter type cases. And .the number being filed
continued to decline.

Florida Prison, Legal Perspectives
because the end result is the same-the inmate's time in
Schmidt v. Crusoe
prison is directly affected." Id.
It wasn't until 2003 'that a court squarely
The Schmidt court concluded that Schmidt's loss
addressed the applicability of the Prisoner Indigency.
of gain time effectively lengthened his sentence, therefore:
Statute to writ petition cases challenging a gain time
'forfeiture issue.' In Schmidt v. Crusoe, 878 So.2d 361
[H]is gain time challenge should be considered a "collateral
(Fla. 2003), the Florida Supreme Court accepted review of
a case where the Second Judicial Circuit Court and First . criminal proceeding," and the Prisoner Indigency Statute should
not apply. To hold otherwise would result in an unlawful
District Court or Appeal had attempted to force prisoner
"'chilling' ora criminal defendant's right to appeal.or otherwise
Daniel Schmidt to comply with the Prison Indigency
challenge the propriety or constitutionality of the conviction or
Statute to challenge prison disciplinary action involving
sentence," GefJkin v. Strickler, 778 So.2d 975, 977 n. 5 (Fla.
forfeiture of gain time.
2001), ~d raise a serious issue as to criminal defendants'
Schmidt had filed a petition for writ of mandamus
constitutional rights of access to the courts to challenge their
in the circuit court contesting the disciplinary action and
sentences.
gain time forfeiture imposed as punishment. The circuit
Court told Schmidt that in order to proceed he' must pay.
Id.
However, the court included a footnote (n. 7) to
,the court's filing fee or file an .affidavit of indigency and
the first sentence of the above-quoted finding that was not
six-month printout of his inmate account (the preliminary
only legally wrong but actually injected more confusion.
to imposing an account lien) pursuant to the Prisoner
That footnote states, in part: "Because the Prisoner
Indigency Statute. Schmidt responded that he was not
lndigency Statute'(section 57;085) does not apply here, the
subject to those requirements because his petition was not
general indigency Statute (section 57.081) does. -That
a civil lawsuit, but instead was a' "collateral criminal
means that if Schmidt still seeks to proceed in forma
proceeding" exempted under the statute.
pauperis [as an indigent], he must prove his inability to
The circuit court rejected Schmidt's pOsition and
pay by filing' an affidavit with the information required
',he then filed a petition for writ of prohibition (to stop the
circuit court's exercise of jurisdiction it did not have to
according to section 57.081."
require compliance with the inapplicable statute) in the
The problem with that codicil to an otherwise
First District Court of Appeal. The . district court also
legally accurate decision is that in 1996 when section
invoked the Statute and informed Schmidt that his petition
57.085, the Prisoner Indigency Statute was enacted,
in that court would be dismissed if he did not comply
~ction 57.081, the general indigency statute, .was also
with it or pay that court's filing fees. Schmidt then
amended to provide that it docs not apply to prisoners.
petitioned the Supreme Court with a mandamus action for
Additionally, that note implied that prisoners should have
review. The Supreme Court stayed the lower court's
to pay tiling fees and costs or apply for indigency status
actions until it issued a decision.
and receive a waiver under section 57.081 to file what the
The Schmidt court examined the PLRA and
court had just held was a collateral criminill proceedingFlorida's Prisoner IndigencyStatute, and the' intent of
which is akin to a habeas corpus proceeding for which
Congress and the, Legislature in enacting them, and
, there is no tiling fee or costs under Florida law.
concluded the intent was "almost identical." They both
"were enacted, according' to the Schmidt court, "to
The Crusade Begins
discOurage the filing of frivolous civil lawsuits, but not .to
It was obvious from the beginning ,that the judges
prevent the filing of claims contesting the computation of
in the Second JudiCial Circuit Court didn~t like the
criminal sentences." Id. at 365-66. The court noted that
Schmidt decision. Before the ink had hardly had time to
federal decisions cOncerning the scope of the PLRA have
dry on the. decision the circuit court was trying to figure
held the same. Federal courts are aligned in concluding
out a way to prevent prisoners m>m freely filing collateral
that claims contesting the computation of criminal
criminal· writ petition actions in that ·court to challenge
. sentences (although brought as a hybrid "civil" action)
improper or illegal actions by the DOC or Parole
should continue to' be treated as, traditional collateral
Commission that affects the duration of their sentences.
proceedings under habeas corpus, since they are not the
The first attempt by the circuit court to twist the
type of "civil lawsuits" challenging prison conditions that
Schmidt decision to block access involved the court
Congress meant to discourage or restrict.
claiming it did not have jurisdiction to hear such cases.
The Schmidt court further noted that ,"it is
When prisoners tiled such actions in that court they would
apparent. that an action affecting gain time does in fact
be dismissed, with .the court claiming that since the
.dTect the computation of a criminal defendant's sentence,
Schmidt decision held that an action ~ecting gain affects
because the length of time the inmate will actually spend
the computation of a criminal defendant's sentence, and
in prison is directly affected." Jd. at 367. The court
is therefore a collateral criminal· proceeding, then it
explained that "a gain time challenge is analogous to a
follows that such actions should be filed in the court
collateral challenge to a sentence in a criminal proceeding
which sentenced the defendant prisoner, not the Second 5

Florida Prison LegarPerspectives

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Judicial Circuit Court. Exhibiting that the court knew it
was wrong, it began dismissing prisoners' collateral
criminal writ petition cases, rather than transferring the
cases to the (supposedly correct) sentencing courts around
the state as required by the rules of court. Rule 1.060,
Fla.R.Civ.P.
Nevertheless, it didn't take long before the First
District Court of Appeal ruled that the circuit court does'
have juris~iction, finding that Schmidt,was limited to the
inapplicability of the Prisoner Indigency Statute to
collateral criminal proceedings and could not be extended
by the circuit court to claim lack ofjurisdiction. Burgess
v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). See a/so,
Davidson v. Crosby,883 So.2d 866,(Fla. 1st DCA 2004);
Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005) and
Mora v. McDonough, 31 Fla.L.Weekly D1937 (Fla. 1st
DCA 7/20/06).
,However, although reversing the circuit court on
the jurisdiction block, the appeal court in Burgess
encouraged that lower ~urt by certifying a question to the
Florida Supreme Court, asking: Whether all challenges
affecting the length of a sentence, including gain time
award or forfeiture challenges, should be' filed in the
sentencing court, pursuant to Schmidt!
Also of note, appeal court Judge P. Padovano
dissented in Burgess, exhibiting support for his former
circuit court, stating, "I think that this case is but one of
many problems' Courts will face in the-. wake of the
Schmidt decision," and ~Xhibiting his belief that he knows'
more than the Supreme Court Justices, cOinmenting, "I do
not think that a petition for writ of mandamus that is used
to review a decision by an administrative agency should
be treated as though it were a, collateral proceeding in a
criminal case."
,
The circuit court's "lack ofjurisdiction" blockade
on access to the court didn't last very long before being
disapproved by the appeal court. B~t the circuit court
judges weren't about to.give up. They had become use,to
not having to "handie many prisoner collateral criminal
writ petition actions in the years between 1996 and 2003
before Schmidt was decided and they intended to keep it
that way. The problem was building by that time. It had
taken a while, but increasingly. prisoners were learning
about the Schmidt decision and had started to file' more
cases to challenge improper or illegal DOC gain time
withholdings or forfeitures th!lt had become prevalent
from the preceding years' scarcity of legal challenges.
But what was the circuit court to do? If it
complied. with Schmidt, even more prisoners would be
encouraged to file writ petitions. And with the number
already being'filed by then, and the issues being raised, it
was clear that the DOC was riding roughshod over the law
and its own rules to withhold and take prisoners' gain time
at will. Meaning many more writ petitions were coming,
unless something stopped them.

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That was when judges in the Second Judicial
Circuit Court, feeling their backs were against the wall,
decided to violate the law. '
S(:hmidt Ignored

Although the Supreme Court had made it clear,
the Prisoner Indigency Statute does not apply to'prisoners',
collateral criminal writ petition cases, judges in, the'
Second Judicial Circuit Court once again begSn to apply it
to such cases. The court clerk was directed to require all
prisoners filing writ petition, cases in that court to either
pay the, filing,fees up front or to file a § 57.085 indige~cy
affidavit along with a six month inmate account statement
(a § 57.085 requirement). when prisoners complied with
that last requirement then the court would order the DOC:
to place a lien on the prisoners' accounts and seize any
money placed into the'acco~t and send it to the court to
cover the filing fee.
.,
If priSoners refused to comply with the court
clerk's directions their Cases' were dismissed. IfprisonerS ,
motioned the court to stop the clerk's improper
requirements, their motions were never ruled on or were
summarily denied. If prisoners protested too much about
, the illegal application of § 57.085, even after paying the.
filing fee or having a lien placed on their accounts and
their money taken, then their petitions would be denied or
they would be threatened by the court with the possibility
of an order directing the DOC to consider disciplinarY '
, action for filing" frivolous, false, or malic\ous legal
pleadings, or in instances, actually have such orders
issued.
The message was clear, the Second' Iudicial
Circuit Court was not going to comply with Schmidt and
prisoners could shut up and either pay the ,filing fees aDd
costs or allow.their money to be taken from their accounts
or, preferably, stop filing writ petitions in that court. " : .
Prisoners who sought to appeal the' illegal liens,
and seizure of their money were slappe4- with appellate· ~
filing fees or liens by the circuit court, compounding the
offense, but no doubt discOuraging many· appeals. See;
Cason v. Crosby, 892 So.2d·536 (Fla. I S:t DCA 2005). " , , .. '
And prisoners who sought to circumvent the',.
circuit court's illegal imposition offees and liens to file
appeal (or seek certiorari review) by going directly"to,the
appeal court were shocked when the appeal court clerk
also illegally required § 57.085 compliance to p~in
tha;t court. Fortunately, a few cases d,id geUMough that
double roadblock.
" The first 'of those cases was Cox v. Crosby, 31
,Fla.L.Weekly D310 (Fla. 1~ DCA 1/26/06), review
granted sub nom. McDonough' v. Cox, 924 So.2d 809
(Fla. 2006Xthe Supreme Court has yet to issue a ~ecisicin
on its review of this case, as of 10/15/06). The appeal,
court's decision in Cox is printed here in its entirety: '
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n

Ea.L Weekly D310

IB) J. cox. uNa, LEONARD COOK, Appellant, v. JAMES V. CROSBY, JR.,
Ia::mIay,DepartmentofComctiollS,AppelJee.lstDis1ricLCaseNo.lDOS-38S7.

OpiDionfiledJllJ1lIII)'26,2006.AnappealrromanorderoftheC~tCourtfurLeon

QIumy. Janet E. Ferris, Judge. Counsel: Leo J. Cox, pro se, appellanL Charlie Crist,
IiIlJ:Jrrr6y General, and Joy A. Sblbbs, Assislant Aamney General. TaUabassee, for
IIp1lee.

ORDER ONAPPElLANI"S MOTION FOR REVIEW
(WEBSTER, 1.) Bypetitionforwrit ofmandamus, Leo 1. Cox argued
in the Circuit Court for Leon County that a 1993 amendment to
section 944.275, Florida Statutes,whichprecluded him from receiviD.s basic gain ~e, was unconstitutional. If sUccessful, Cox would
bavebeenentitled to morethan five years ofadditional gain time. The
petition was denied and Cox has appealed to this court. .
The circuit court issuedan order which found Cox to be indigent
6Jrtheappea1 in accordanceWithsection57.08S,Florida Statutes, and
imposed a lien on his inmate trust account to recover the applica~le
filing fees. Cox moves for review of that order pursuant to Flonda
JlDteofAppellateProcedttre9.43O(a) and argues thathis circuitcourt
petition was a "collateral criminal" proceeding as described in
St:hmidl v. Cnuoe, 878 So. 2d 361 (F1a. 2003). He contends that his
iadigency shouldthereforebefCS91ved under section57.081,Florida
Statutes; which does not containalien provision. See Cason v. Crosby,
892So.2d536(F1a. IstDCA2OOS).AppelleeopposeSthemotionand
arguesthattheholdinginSchmidtshouldbelimitedtoitsfacts,where
the appealing party has challeJ!ged the forfeiture of gain time by
eotreetions officials.
Appellee's argument is not without appeal. We cannot, however,
accept it in light of the reasoning ofthe court in Schmidt. There, the
court said "itis apparent thatanaction affecting gain time does in fact
8ffectthe~mputationofacriminaldefendant'ssentence,becausethe

lensth of time the inmate will actually spend in prison is directly
affected." 878 So. 2d a~ 366. Fwther, the court stated:
h is clear that the [United States] Supreme Court has refused to be
bound by thevariations interminology used in thevarious challenges
to the computation ofan inmate's sentenee.lnstead, it hils looked to
the effect thechallenged action had on the amount oftime an inmate
.has toactuaUy spend inprison. Wethinkweshould do thesame; thus,
we conclude that a gain time challenge is analogous to a collateral
chaI1engetoasenteneeinacriminal proceeding because the end result
is the same-the inmate's time in prison is directly affected. .
It!. at 367. Here, if appellant's claim is successful theresult wouldbe
that his time in Prison would be "directly affected," i.e, significantly
reduced. Weare, therefore, constrainedto conclude that this pr0ceeding is a "collateral criminal" one as defmed by our supreme court in
Schmidt. Accordingly, we want appellant's motion for review and
reverse the trial court's order to the extent it imposes a lien on his
inmate trust account to recover applicable ming fees. However,
because we share many ofthe dissent's concerns regarding what we
pen:eivetobe~logicalimplicationsofSclimidtincasessuchasthis,

we certify to the supreme court the following question, which we
believe to be ofgreat public importance:
DOES TIlE HOLDING IN SCHMIDTY. CRUSOp, 878 So. 2d361
(FIa. 2003), EXTEND TO ALL ACTIONS; REGARDLESS OF
'lHEIR NATIJRE, IN wmCH, IF SUCCESSFUL, TIlE COMPLAINING PARTY'S CLAIM WOULD DIRECTLY AFFECTHIS
ORHERTIMEINPRISON,SOTOPRECLUDEIMPOSmON OF
AUENON1HEINMATE'S TRUST ACCOUNT TO RECOVER
APPUCABLEFILING FEES?
MOTIONFORREVlEWGRANrED;ORDERREVERSED; and
QUESTION CERTIFIED. (LEWIS,I., CONCURS; HAWKES,I.,
DISSENTS WlTHWRI'ITEN OPINION.)
(HAWKES, I., DISSENTING,) Beyond dispute, Appellant's
dta1lengetothe 1993amendmenttosection 944.275, Florida statutes,

as violative ofthe constitutional single subject requirement, was a
routine civil suit. This type ofchallenge is not exclusive to criminal
casesorevencriminaloffenders. In fact, cost totheplaintiffistheonly
difference in the action med by this prisoner, and an identical action
filed by a citizen who remains at liberty. The citizen would have
fmancial consequencesfrom which the majority, contrary to.express
statutory requirements, chooses to exempt Florida's entire prison
population.
Thejustificationfor thisjudicial largesse isthemajority's specuIationl that, ifthe suit ha4 merit, Appellant may have earned more than
fIVe years ofadditionalgain-timefrom his 2O-yearsentence. This may
explain why Appellant brought the suit. However, it does not, and
cannot, magically transform this civil suitintoa "collateral criminal"
action.
. As support for its decision, the majority relies on Schmidt v.
Crusoe, 878 So.2d361 (FIa.2003).InSchmidt,aninmatechal1enged
the loss of vested, earned gain-time for an ll1leged infraction. The
question confronting the Schmidt Court was whether "awrit petition
contesting theforfeitureof gain.time whichresults in a longerperiod
of incarceration should also be considered a collateral criminal
proceeding and th~ exempt from thestatute••."It!. at 362 (emphasis
added). TheCourtconcluded"Schmidt's loss ofgain-timeeffectively
lengthened his sentence, since, by the Department of ~tions'
action he now has to serve that additional time in prison." It!. at 367
(emphas1s added).
. .
. This court applied the Schmidt reasoning in Cason v. Crosby, 892
So. 2d 536 (Fla. 111 DCA 2005). In Cason, the inmate challenged a
disciplinary action of the Department of Corrections. This court
. recognizedSchmidtheldcases ""wheretheprisonerchallengeathe loss
ofgain-time,arecolla~aiminalproceedingsandareexemptfrom

section57.08S."It!. at 537 (emphasis added).
Inboth Schmidland Cason, the lawsuitchallengedadminislrative
action that resulted in the prisoner being required to save a greater
period ofincarceration. Schmidtand Cason, unlikethe instantaction, .
did not involve prisoners who, 10 years after the cha11enged action
occurred, decided to me a civi1lawspit challenging the legislature's
compliancewith constitutionalpr=equisites to enactavalid law. Ifthe
prisoners inSchmidland Cason were successful, theywould get back
thegain-timethey recently loSt. Conversely, here, Appellant does not
seek to get back what he lost. Instead, he seeks to receive what he·
never had
.
.
.
The Florida Supreme Court's decision to· expand the scope of
section5.7.081 in the contextofareview ofprisondisciplinecases can
be understood. There are similarities between a collateral criminal
claim and the challenge a prisoner would make to the loss ofvested
gain-time. In most claims for collateral relief or a disciplinary
challenge, the prisoner must act within rigid time-frames orsaaifice
any potential relief. The prisoner/plaintiff here faces no time constraints.
.
Moreover, in ·both collateral criminal claims and disciplinary
challenges, each prisoner's Case is basedonaunique set offacts. Each
prisoner claims that, based on the particular facts ofhis case, he was
persoiJally deprived of some right he previously possessed The
resolution ofone prisoner's case does not resolve the issue for every
other prisonerwho may laterfde a similarcase. Thesefactors.are not
true here.
The majority's holding here dramatically expands Schmidt.
Contrary to theopinion's implication, no logicalanalysis can limit the
"holding to cases involving gain-time. For example, why wouldtbe
section 57.085 lien beapplicabteto aprisoner, who, a decade after.he
was sentenced, alleges a procedural defect by the legislature in the
passageofa habitual offenderstatute,and argues hewould serve Jess
time in prison ifthe statute is stricken? Becausethe potential result is
lesstimeinprisOn, itwould fitwithin therobric ofthe majority's logic.

.

...

7

Florida Prison Legal Perspectives
The majority's logic aeates a test consisting of only a single
element That element is DIet by an allegation that, if the cbal1enge
were"successful theresult would be that his time in prison would be
'directly affected,' i.e., significantly reduced." (Majority op. p. 3).
This simp~c test mezely requires the possibility that a prisoner
would be released from prison sooner ifsuccessful in his cbal1enge.
This test can be met whether the prisoner challenges gain-time
provisions, sentencing provisions, or even the procedures the
legislature fonowed years previously in passing the statute that
criminalized theconduet thatresulted intheprisoner'sincarceration.
Now,ifteclmicaIJypossibletbat"timeinprisonwouldbe'directIy
affected,' i.e., significantlyreduced,"any ofFlorida'sapproximately
80,000 inmates can challengethe constitutionalityofthe procedures
the legislature used to pass any statute. They can even file their
challenge years after the legislature acted, and they can do so even if
the same argument could have been made previously. Certainly,
nothing in the test would prohibit a prisonerfrom bringing a challenge
that anotherprisoner madepreviously. Indeed, no logicalbasisexists
that would prevent the thousands ofprisoners who were also denied
automatic basic gain-time from the 1994 act from blinging the
identical challenge now brought by Appellant. . .
The majority's logic would not even prevent repetitive filings by
these thousands ofinmates. Ineachofthese cases, prisonerscouldfile
with impunity. None ofthem could be required to pay a filing fee or
to sacrifice even the smallestpurchase from his prison canteen fund.
Unlike citizens who are not iJicareerated, prisoners can utilize all of
thesejudicial resources for free.
Florida law is clear. In civil cases, prisoners. are required to pay a
filing fee. The instant case is civil. Consequently, Appellant is
mJuired to pay a filing fee. Since he is indigent, the filing fee should
be taken from a lien on his inmate trust account pursuant to section
S7.0SS, Florida Statutes, as thelegislatureintended. Because the trial
courtproperly imposed a lien on Appel1ant's inmate trust account to
recover filing fees, I would affinn.
'The CIlmleSUd lII'IIelldmeIlt WIIS part oflbeSllfeS1fteISlnitiativeof1994.1bis act

_0 comprehensive mensure designed to address ovaaowdinB ill die SIafc prison
syLW!L The IIIlIII)' cIulngea mado by
Ill:t iIlcluded: e1imiIlating DIIIII)' IIllIDda1Dry
sentences, n>-writing lbe ICI\IeIICing guidelines to alta' die babilual semeacilIg
prmquisites so fewer defeadanu qualify, leCllOYing die Irial court's disaecion to
5eIIlenl:e on felony oft"endcn to prison (22-llUl1dh provision), c:hangiDg lbe conlrol
release proviaiom,JeducingdleseverilyJllJlkillg fordecenniDiDg ~sentem:es
ill lOme IIUemplS, conspiracies, IUId sollcillllions, IUId prohibiliDg die 1egis1alure from

ltIo

creating new felony offenses or increasing lbe severity ofany offense unless such
IlCtionhadl1zaonetimp:lctonFloridll'sprlscnpopulalion,ordlelegislatureidenlified
11 sep3JlIte funding SOllltClto meet lbe esdmaled impact on die prison population. The
cbanges ill sentellcing law were 10 nlllll«OUS they CClJISUmed 63 pages illthe!JIwsof
Flaida. W"llhoutbtowing Appellant', complele criminal histmy, any IUSa'tion dJathe
would spend less Iimc in prison ifthe lICt wall declared lIIICOmtituliollll1can only be
speculative.
.

*

8

*

*

In addition to the majority of the Cox Court again
questioning the Schmidt decision with its certified
question, the dissent by Judge Hawkes is (with all due
respect) disingenuous and factually wrong.
Judge Hawkes erroneously wrote that, "cost to the
plaintiff is the only difference in the action filed by this
prisoner, and an identical action filed by a citizen who
remains at liberty. The citizen would have financial
consequences [filing fees and costs] from which the
majority, contrary to express statutory requirements
[apparently § 57.085], chooses to exempt Florida's ent;re
prison population." At another point Judge Hawke fudges
the truth in the same vein, claiming that the majority of

that court would allow prisoners to file without having to
pay a filing fee, "[il]nlike citizens who are not
incarcerated, prisoners can use all these judicial resources
for free."
Actually, no free citizen could have standing to
bring an "identical action" to the one brought by Cox,
because' they would not be affected by such gain wne
limiting statute. And at the time Cox filed his mandamus
petition in the circuit court (which probably should have .
been a petition for declaratory judgment) any iiuJigenl
citizen could have (unlike Cox) obtained a complete
waiver of filing fees and costs to file any type of legal
action in the state courts, even a civil lawsuit, pursuant to
§ 57.081, Fla. Stat The rest of Judge Hawkes' rhetorical
diatribe is simply illogical argu~ent in support of some
fonn of statute of limitations being placed on prisoners'
collateral criminal proceedings, in addition. to making
them pay to file them. In other words, impede their access
to court procedurally and financially.
Following the Cason and Cox decisions, a swarm
of other appeal court decisions issued reversing the
Second Judicial Circuit Court placing liens on prisoners'
accounts or taking their money to file collateral criminal
proceedings. Gi//iam v. McDonough, 31 Fla.L.Weekly
01079 (Fla. lSI DCA 4118/06); Wagner v. McDonough,
927 So.2d 216 (Fla. III DCA 512106); Yasu v.
McDonough, 31 Fla.L.Weekly 01459 (FJa. III DCA
5125/06); Vega v. Ki/hefner, 931 Soold 223 (FJa. lSI DCA
6/14/06); Babji v. Department of CorrecJion9, 31
Fla.L.Weekly 01699 (Fla. lilt DCA 6122106); Flowers v.
McDonough, 31 FIa.L.Weekly 01808 (F1a. }SI DCA
7/3/06); McCaski// v.' McDonough, 31 FIa.L.Weekly
01811 (Fla. III DCA 7/3/06); Lopez v. McDonough, 31
Fla.L.Weekly 01971 (Fla. I Q DCA 7126/06). See also,
Muhammad v. Crosby, 922 So.2d 236 (Fis. lilt DCA
1117/05) and Thomas v. State, 904 Sc.2d 502 (Fla. 4th
DCA 2005}(§57.085 does not apply to collateral criminal
proceeding challenging parole statute).
.
However, although the First District Court of
Appeal has been complying with Schmidt, the rhetoric in
.

.

its decisions disapproving of Schmidt (in support of the
circuit court) has been getting stronger. And as exhibited
in the following two recent decision it appears that court is
looking for what might be considered "borderline" cases
to issue published opinions on in the attempt to sway the
Supreme Court to receded from, or at least limit, Schmidt.
31 FIa. L Weekly 00015
HOWARD McGEE, Appellant, v. STATB.OP FLORJDA,.FLORIDA DEPART·
MENrOPCORRECllONS,Appel/oe.lstDlslril:t.CaseNo.1D044473.0piDi0Il
filedJuly 31,2006. Anappenl &om 0 final ord«liom1becin:uitCOUltfilrl.eoGCounty.
OII1rIe:JA.Fmncis,Judge. CouuseJ:HowIIrdMc:Oee.pzose,AweJlant.RmaCmon,
GaIaul Counsel; Judy Bone IUId BaIbma DeIJdiuI..EIIem Aaislon1 GaIenl
.COUnSeIS, Dep:tnmemofCorrec:tioIll, ~ tor Appellee.

(PER CURIAM.) This is an appeal fromthecitcuitcourt's dismissaJ
of Appellant's petition for writ of mandamus in which Appellant
sought to reinstate his lost gain time. We deny on the merits Appe1lant's petition forreinstatement ofhis gain time. but we mustrevetse
the circuitcourt'sorderimposingalienon Appe11ant's prisonaccount

Florida Prison Legal Perspectives
basedontheholdinginSchmiiilv. C'nLSoe,878 So. 2d361 (Fla.2003).
Under Schmidt, the circuit court eaed when it ordered Appellant to
pay filing fees and imposed a lienon his prison accounL See Caspn v.
Crosby, 892 So. 2d 536, 537-38 (Fla. 1stDCA 2005).
.
We write only to address the impact of Schmidt on cases such as
this. In Schinidl, the supreme court held that any action which could
conceivably reduce a litigan1'sprison time, shouldthe prisoner litigant
pn:vall. isacolbtetalaiminalproceeding; thus, thelitigantis exempt
from the filing fee requirement and lien provisions contained in
section 57.0SS, Florida Statutes (2001).
AfterAppellantviolated his parole, the DepartmentofCorrections
forfeited Appellant's gain ti,me pursuant to section944.28(I),Florida
Statutes (2001), which authorizes gain time forfeiture for parole
revocation, without notice or hearing. Despite the clear authority of
the Department, Appellant filed this action below, alleging that the
Department was Without the authority to forfeit his previously earned
gain time. Gain time is a matterof grace that an inmate does not have
avested right to receivewithoutalegislativeenactment See WaldnIp
v.Duggar,562So.2d687.694-9S(Fla.I990).Appellant'sargument
is completely without merit as a matter oflaw and, in fact, is frivolous.
Had Appellant made anargUment such as this in a civil case, he could
have been sanctioned under section 57.105. Florida Statutes (1999):
Specifically,the 1999 venion [ofsection 57. lOS] authorizes an award
ofattorney's fees "on any claim or def~e at any time during acivil
proceeding oraction,"iftheclaim "was not supported by the material
tiasnecessary to establish theclaim," or"would not be supported by
the application of then-existing law to those material facts." . . .
Significantly, the 1999 venion of section 57.105, "applies to any
claim or defense, and does not require that the entire action be
frivolous."
A/britJon v. Ferrera, 913 So. 2dS, 8 (Fla. 1st DCA 2005) (citations
and footnote omitted).
Before the enactment of section 57.085, Florida Statutes (2001),
challenges to prisoner disciplinary actions were treated as civil
petitions, not collateral criminal proceedings. Because Appellant's
petition is now considered a collateral criminal proceedj.ng under
Sdzmidl, Appe11anl cannot be sanctioned under section 57.lOS for
filing ameridess claim. He is also not required to bearanyot the costs
imposed on the courts and the public for filing his action.
.
Thelegislature passed section57.0SS,FloridaStatutes (2001), the
PrisonerIndigency Statute, to reduce frivolous prisoner litigation. The
preamble to Florida's Prisoner Indigency Statute does not cite any
specificexamplesofcivil inmate lawsuits to wbich it applies, only that
the law is enacted because
frivolous inmate lawsuits congest civil court dockets and delay the
administration of justice for aU litigants, and ... each year selfrepresented indigent inmates in P1orida'sjails and priSonsfileaneverincreasing number of frivolous lawsuits at public expense against
publicofficets and employees, •..•
01. 96-106, preamble, Laws of PIa. Although the legislature has not
chosen to clarify its intent in passing the Prisoner Indigency Statuteor
.to address the supreme court's decision in Schmidt, it isclear that since
this decision,· frivolous actions such as Appellant's continue to
consume precious judicial resources. Here, a circuit judge was
required to review Appellant'S frivolous claifn. In addition, three
judges of this court were required to consider Appellant's claim.
Publictaxpayen must solely bear the costs oftheseactions.
This court has previously expressed its concan with Schmidt by
certifying several questions to thesupremecourL Burgessv. Crosby,
. 870 So. 2d217,218-19 (F1a.lstDCA2004); Coxv. Crosby,31 PIa.
L WeddyD310(F1a.lstDCA1an.26,2OO6).rev.gmntedsubnom.
McDonough v. Cox, 924 So. 2d 809 (F1a. 2(06); Gillam v.
¥cDonouah,31F1a.L WeeklyDl079(Fla.lstDCAApr.18,2OO6);
Ya.drv. McDonough, 31 Fla. L. Weekly D1459 (Fla. 1st DCA May
25,20(6). To certify another question here would neither facilitate
Iinality nor be a wise useoflimitedjudicialresources. Wedo however

recommend thatthe supremecourtrecedefrom its holding in Schmidt
due to its unintended fiscal consequenceson the courtsand thepublic:
See Hoffman v. Jones, 280 So. 2d 431, 434 (Fla.1973) (explaining
that district courts may state their reasons for advocating change but
are "bound to fonow the case law set forth by this CourL j.
Accordingly, Appellant'S petition is DENIED as to the challenge
to the order by which the trial court denied mandamus, but is
GRANTED as to the challenge to the lien ordets, and thoscorders are
hereby QUASHED. (HAWKES and mOMAS, n., CONCUR;
VAN NORTWICK, 1., CONCURS IN RESULT ONLY.)

•

•

•

31 F1a. L Weekly DU99
Criminallaw-Maodamus--Errorto Impose lieDagaiDstlnmatetrust
. BalOUDtfor costs Inc:ulTed InfDfDg ofmandamus pedtioncbaJJenging
dlc;dplfnary JII"M'f"'dIngwbkhresulted In J.S.day period ofamfInemeot
dudog wbIcb pedtloner was uoable to earn galn-tlm&-Questn
certmed: Does the holding In Schmidt v. Cnuoe, 878 So. 2d 361 (F1a.
2003). extend to aD adfous, regardless or their nature, In wbicb, If
successful, the complalnlng party's dafm would directly affect IUs or
her dme In prisoo, so to preclude imposition or a Uen on the inmate's
trust BalOunt to recover applicable fiHng rees
.
JOHNNYB.JACKSON,Appellant,v.JAMESR.MCDONOUGH,Sec:relary,Aarida
OepaJ1mentofCClJrections,Appolleo.lstDislrict.CasoNo.ID0S-4S27.Opinianfiled
September 5, 2006. An appeal from the Circuit Court for Leon Cowtty. Thomas H.
8aIeman, In, Judge. Counsel: Johnny B. JIlCkson, pro se. AppcIIant. Charlie Crist,
AIIamey Geneml,and LindIl HonanDodson,As.sisIarttAllDmeyGenmll,Tallahassee,
for Appellee.
(VAN NORTWICK,1.)10hnny B.1ackson, an inmate in1hecustody
ofthe Department ofCorrections (DOC), appeals anorderdenying his
request to be relieved of a lien imposed against inmate trust account

forcosts inc:um:din the filing ofa mandamuspetition. Wereverseon
the authority ofCox v. Crosby,_ So. U-o 31 PIa. L. WeeklyD310
(Fla. I" DCA Jan. 26, 2(06), and fanr v. McDonough, _ So. 2d_
,31 Fla. L Weekly D14S9 (Fla. 18 DCAMay2S,2O(6),cases decided
after the entIy of the order on appeal, and certify a question of great
public importance.
1acksonfiled apetitionfor awrit ofmandamus in thecin:uitcourt
by which hechaUeqged a ~linal.Yproceedin,g.1acksonbad been
charged with an unauthorized absence, and a disciplinaIy heariDg
team found Jackson was guilty of the infraction; JackSon was
sentenced to 15 days ofdisciplinary confinement During this period,
1ackson was unable to earn gain-time.
The trial court denied mandamus relief. Further, the trial court
entered an order directing the DOC to place a lien against 1ackson's
prisontrustaccount for thecourt costs associalqi with thefiling ofthe
mandamus petition. Jackson thereafter moved to be relieved of this
order on the.authorlty of Schmidt v. Crusoe. 878 So. 2d 361 (Fla.
20(3). and Casonv. Crosby,892So.2d536(Fla.l"DCA2OO5).The
trial court denied rellef, finding Schmidt to be diStinguishable since
that case consideredtheloss ofearned gain-time, wbereasJacksonhad
not lost any earned gain-time as a result of the disciplinary action
taken against him. The trial court did not address Cason.
. PursuanttotheFloridaPrisonedndigeocyStatute,section57.0SS,
Florida Statutes (2OOS), an inmate who brings a civil action may be
subject to the placement of a lien on his or her trust account for the
court costs acaued by the filing ofthe action. ThePrisoner Indigeocy
Statute, however, specifically exempts "criminal" and "collateral
criminal" proceedings from its provisions.'The term "collateral
criminal prnawIings" is not defined in the statute.
In Schmidt, the Florida Supreme Court examined the legislative
history oftbcstatutcanddetermined that, wbilcthepurposcofsection
S7.0SSistodiscouragethefilingoffrivolouscivilJawsuits,thcstaJute
is not intend~ to prevent the filing of claims contesting a criminal
sentence. The prisontz in Schmidt had cbaI1eoged a disciplinary 9

Florida Prison Legal Perspectives
action by the DOC which resulted in the loss of gain time thereby
lengthening the prisoner's sentence. Therefore, the court concluded
that the proCeeding. challenging such a disclplinaIy action was a
"collateraI aiminal proceeding" for the purposes ofsection 57.085.
Schmidt, 878 So. 2d at 367. The Court'explained that "a gain time
challenge is analogous to a collateraI challenge.to a sentence in a
~proceeding beCause theendresult is the same-theinmate's
time in prison is directly aff~." /d.
'
In Cox Y. Crosby, _ So. 2d --' 31~ 1.. Weekly D310 (Fla. 1a
DCAJan. 26,2006), an inmate challenged, byapetitionfor a writ of
mandamus, a statute which preclUded the inmate from earning basic
gain.time. The inmate was denied mandamusreliefand was assessoo
court costs pursuant to section 57.085. This cowt revened the
assessment ofcowtcostsontheauthority ofSchmidt. The ~panel
observed that, iftheinmate'schallenge had been successful, then his
sentencewould be..directly affected" and thus, cowt costs could not
be assessed under the reasoning of Schmidt. The Cox court, though,
. certifiedasa mattecofgreat pub1ic importance thequestionofwhether
theSchmidtholding extends toallaetions which, ifsuceessful, would
directly affeathetimespent in prisonby the party bringing the aetion.
Thesupremecourt has accepted review of Cox. McDonough Y. Cox,
924 So. 2d 809 (Fla. 2006). "
,
In Yasiry. McDonough,_So. 2d--, 31 FIa. 1.. WeeIdy 01459
(FIa.l- DCA May 25, 2006), this court quashed an order imposing a
lien on an inmate trust accountfor filing fees incwred in the filing of
a petition for a writ of mandamus. By this petition, the inmate had
challenged a "satisfactory"wbrk evaluation, cOntending that he
shouldhavereceived an "abov~satisfactory"rating. Healleged that,
had he received an "abov~satisfactory" rating, he would have
received more gain-time.,The Yasirpanel observed that the inmate's
sentence would have been shortened by several days and, thus, his
sentencewould have been "directly affected" had he been successful
in his challengeofthe work evaluation. As in Cox, this court held that
a mandamus petition was a collaternl criminal proceeding which was
not subject to the imposition of a lien for filing cOsts under section
57.085./d. The Yasircourt also certified the question certified in Cox.
Based upon the authority' of Cox and Yosir, we hold that the
imposition ofa lien in the instant case was error. Had Jackson been
successful in his chalIeJ1$eofdisci,plinaty confinement,hewOuIdhave
hadtheabilitytohavceamedadditionalgain-time. 'Ibus, as we found
in Yasir, his sen~ Would have been "directly affected." We note
that the trial cowt did ~t have the advantage of our. Cox and Ya&ir
decisions, because the trial cowt entered the order on appeal before
those cases were decided.
Accordingly, the order denying relief from the order directingtbe
imposition ~f a lien on Jackson' 8 iJupate trust account is VACATED,
and the ,cause is REMANDED for entry of an order directing the
relmbursement ofJacksonofthosefunds withdrawtifromhisacc:ount
pursuant to the lien. "
As we did in Cox and Yasir,'we certify the following question 88
oneofgreatpublic importance:
OOBS nlBHOLDlNGlN SCBM1DTV. CRUSOE, 878 So. 2d 361
(Fla. 2003), EXTEND ,TO AU. AcrIO~S, ,REGARDLESS OF
THPJR. NA1'URE, IN ~CH, IF SU~SFUL; TIm COMPLAININGPARTY'SCLAJMWOULDDIRBCTLYAFPECTIDS
ORHBR. 'ITh!BINPRI80N,SoTOPRECi.UDBIMPOSmONOP
A LIEN ON TImlNMATE'S TRUST ACCOUNT TO RECOVER.
APPLICABr..EF1LlNO FEES?
(BARFIELD AND LEWIS,]]., CONCUR.)

•

• •

Although the appeal court has consistently been
reversing the circuit court on the § 57.085 .filing fee/lien
issue and ordering reimbursement, the Second Judicial
Circuit Court, clerk and judges,'are still impos~g the liens
10 andtaking prisoners' money illegally. '

It is important'to note a few other situations here
that are related.
The First District CoUrt of Appeal. has recently
held that when a' prisoner wishes to seek appeal court.
review of the circuit court's improper imposition of a § .
57.085 lien for filing a collateral criminal proceeding in
the circuit court, the lien issue cannot be .raised on
interloclJtory appeal, but may be raised on any appellate
review sought after ,a final order is issued by the circuit
court on the writ-petition. See, Banks v. State, 916 So.2d
35 (Fla. 1st DCA 2005); Quilling v. McDonoUgh, 31
Fla.L.Weekly 01831 (Fla. lilt DCA 7/6/06); and Ressler v.
McDonough,' 31 FIa.L.Weekly 01915 (Fla. lSI DCA
7/18/06). But the appeal court has also held that ifreview
is sought of the circuit court's improper imposition 01 a §
57.085 lien for filing tl1J 'appeal or petition seeking
certiorari review of the circuit court's ,action (as to
whether appeal or certiorari is the proper review vehicle,
.see, Sheley v~ Department ofCorrections, 703 So.2d 1202
(Fla. lilt DCA 1997» then a prisoner may obtain review of
that improper lien with' a Rule' 9.430(a), FJa.R.App.P.,
motion filed in the appeal court. See, Wagner v.
McDonough, 927 So.2d 216 (Fla. lilt DCA 5/2/06).
Additionally; during 2005 the Legislature
amended § 57.081 so that indigents rio longer receive a
waiver of filing fees and costs under that statute but
instead can only receive a deferral of same. At the same
time, § 57.082, Fla. Stat.~ was enacted to provide a '
procedure to implement §57.081 indi~ncy deferrals
through a monthly payment plan system based on· the,
amoUnt of income. Neither the Second Judicial Circuit
Court nor the First District Court ofAppeal want prisoners
to come under those provisions.
Conclusion
Obviously it is going to take the FJorida Supreme
Court to straighten out this situation. There have been two
cases pending in, that court for' Ii while now that concern
relevant issues. Schmidt v. McDonough, Case No. SCOI2252 and Bush v, State, et al., Case No. SC04-2306. What
the Supreme Court should not do is give in to the
improper and illegal pressure and tactics of the SeCond .
Judicial Circuit Court to recede in any way from the
Schmidt decision, ·which, except for footnote 7. is sound
law.
.
One solution that Court should consider that
wouldaileviate the, Second Judicial Circuit Court's
caseload and possibly solve the whole problem 'is with
venue. While the proper venue and jurisdiction should not
be with the sentencing court to hear the type collateral
criminal issues being raised in these cases where gain time
or subsequent actions affecting the duration of the
criminal sentence are involved, that often arise years after
the sentence is imposed, such venue and jurisdiction
would be 'proper in the circuit court where the cause of
action occurred. For example, when in-prison discipJinIUY
actions are judicially challenged by prisoners as collateral

"

Florida Prison Legal Perspectives
criminal proceedings, they could and should be brought in
the circuit where the prison is located and the disciplinary
w:tion involving gain time was taken. That way one
circuit court would not bear the burden of handling those
type cases, and the counties where prisons are located,
'which benefit financially from the prisons' presence, can
share the workload and any expense. Same with the
appeal courts.
[FPLP Editor Bob Posey assisted with this article.] •

Shake Up at Florida's
Women's Prison'
by Sherri Johnson

LOWELL- Citing long-term festering problems at
Florida's largest prison' for women, Department of
Corrections Secretary Jim McDonough took steps earlier
this year to correct those problems after an independent '
company's audit of the entire prison system singled out
Lowell Correctional Institution as needing particular
attention.
.
Exhibiting the seriousness of the problems, in late June
Laura Bedard, the deputy secretary of the Department of
'Corrections, volunteered to take over as interim warden at
Lowell. Bedard, a former Florida State University
professor, reportedly was given the job by Secretary
McDonough so that she could implement a fresh approach
and her theories on corrections. With McDonough's
mandate behind her, Bedard -has certainly made some
changes at the prison.
'
In mid-October McDonough praised the work that
Bedard has done at Lowell, saying that she has done a
magnificent job and has set "a, shining example of
'leadership from the front."
. So far Bedard has fired' 63 employees, over half for
,conduct unbecoming a corrections officer; started
additional staff training that focuses on handling female
:'prisonerS; repainted the entire prison, and has been adding
new programs to benefit the women prisoners at little or
no cost to taxpayers and that in instances may actually
reduce costs.
Lowell CI is Florida's oldest and most well known
women's prison in the state.• There are a total of almost
,2,400 beds and 700 employees at the institution, which
"includes the 803-bed maximum-security main unit and
'three work camps. One warden is responsible for it all.
Secretary McDonough was prompted to make changes
at Lowell when MGT of America Inc. conducted an
operational audit of the prison system and found that
Lowell had significant staffing problems, needed
. inimediate work on two old buildings,' and needed serious
attention on ways to better manage female prisoners in
terms of how staff deal with them and in how they spend
their time. Bedard said those problems are being
addressed "all at the s'ame time." "We know that 80 to 85

percent of the women in prison come from abusive
backgrounds and more than half are arrested with a male
counterpart. Many of them have no self esteem and go
along with the pack because they are incapable of standing
up for themselves," said Bedard. "We have added training
on how to deal with the unique issues that women bring
with them to prison."
-,
In ad~ition to providing staff training, new programs
have been started at the prison to help the women learn
how to cope with stress, conflict and difficult choices.
One thing Bedard won't put up with is staff barking or
yelling at women prisoners.
Noting that prisoners were having to stand in long lines
to purchase commissary items, Bedard added two more
canteen windows. She says she also tries to spend about
two hours a day outside of' her office walking the
compound, taking - notes, talking and listening to the
women and addre~singt~eir problems.
Mental health is one area where Behard believes costs
can be cut big'time and in a long-term way. The MGT
analysis and Behard's own research suggest that way too
many female prisoners were being administered
psychia~ic medications. About 41 percent of the women
at Lowell were being medicated, way above the 20 to 25
percent average nationwide.
Bedard said those prisoners being given anti-anxiety
and anti-depressant medications are now being offered
therapeutic programs, if they will forego the medications,
and good results are being reported.
Bedard had never served as a warden before going to
Lowell, but says she enjoys and gets great satisfaction
from the job. However, eventually she will go back to her
deputy secretary job in Tallahassee, something guaranteed
when she agreed to take over at Lowell to shape it up. But,
before she leaves Bedard said she intends to have a 10year plan in place at' Lowel! for long-term maintenance
and a master plan for growth. She pointed out that women
are the fastest growing prison population and that the
FDOC needs to be ready for that.
,

[Source: Gainesville Sun, 10/23/06] m

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II

Florida Prison Legal Perspe,:t,ives

ABA Study Finds Serious Problems
With Fla. Death Penalty
he American Bar Association (ABA) released a report
on the application of the death penalty in Florida on
September 17. 2006. that details serious problems with
fairness and accuracy in the process.
The voluminous 454-page report was prepared by
a panel of influential Florida lawyers that include both
supporters and opponents of the death penalty. The
report, while not calling for a moratorium on executions,
does recommend a wide range of what are presented as
critical changes that need to be made, in addition to
calling for further study of racial disparity in who is
sentenced to death and for the creation oftwo independent
commissions to investigate wrongful convictions and
claims of innocence.
On the racial disparity issue, "It appears that those
convicted of killil'!g white victims are far more likely to
r~ive a death sentence and be executed," according to
the report.
On the wrongful convictions and claims of
innocence issues, Florida has the highest number of death
penalty exonerations in the United Stat~ 22 ofthem since
1973 when the death penalty was reinstated. Florida has
executed 60 people during that same time. That's "over
one exoneration for every three executions,", notes the
report.
The study was conducted by eight lawyers.
including both known supporters and opponents. It did
not address the' morality of the death penalty nor did it
express support or opposition to it.
One of those who signed off on the report is an
ardent supporter of executions and has said he hopes it
will not be used to abolish the death penalty in Florida but
hopes it will improve the process.
That supporter is Harry Shorstein, chief'
prosecutor in the Jacksonville area. Shortstein said that at
one time he sought the death penalty more often than any
other state prosecutor. Now, however, 'he says he believes
it has not been fairly applied throughout the state.
"Whether liberal or conservative, I don't think
anyone can say it has worked well," said Shorstein. "We
should have a fair and equitable death penalty or not at all;
that's the bottom line."
,
The ABA report was two years in·the making and
was -also highly critical of the secretive clemency process
in Florida. That procedure allows those convicted of
felonies or sentenced to death to ask for forgiveness or
mercy from the clemency commission made up of the
governor and his Cabinet. They have the authority to
commute death sentences to. life in prison. In Florida, the
governor can deny clemency for any reason, at any time,
and without even holding a hearing.
The problem is, clemency has not been granted to
12. anyone sentenced to death in 23 years. Its full and proper

T

use, however, is essential to guaranteeing fairness in
application of capital punishment, according to the ABA's
report.
An attorney for Gov. Jeb Bush did respond to that
finding in the report, saying the practice ofconfidentiality
in the process allows clemency board members to search
their personal consciences for what mercy required.
Another of the report's authors, Mark SchJaIanan
of Florida State University, said the ABA's review of the
state's death penalty practices was not intended to address
the morality of the process. Instead, he said, it was to
identify problems within that process that Florida officials
and lawmakers should address to minimize the risk of
executing innocent people.' It is a process "fraught with
problems," according to Schlakman.
Perhaps the most urgent problem he said, is
Florida's failure to provide those sentenced to death with
adequately paid attorneys. Another top problem is the
vast inconsistency in seekinl death around the state. "You
can have 20 different state attorneys and conceivably
have 20 different criteria," Schlakman said.
The extensive report also recommends that jurors,
not judges, be the ones to sentence people to death and
only by a unanimous verdict. Florida is one of the lone
holdout states that does not require a unanimoUs jury
verdict. Last year the Florida Supreme Court urged state
lawmakers to consider changing that as recent US
Supreme Court cases have cast doubt on its
constitutionality. See, FPLP, Vol. II, Iss. S & 6, pgs. 7-8.
Presently in Florida, judges are allowed to decide
whether to adopt a jury recommendation that a person
lives or dies.
Judges rarely' override such
recommendations, and courts have debated for decades on
whether judges are allowed to do so. That's one of the
inconsistencies that prosecutor Shorstein finds
problematic.
Opponents of the death penalty welcomed the
ABA report and its findings and recommendations. Mark
Elliot of Floridians for Alternatives to the Death Penalty
was disappOinted, however, that there is "<;> ,call for a
moratorium on executions. He paints ,to the governor of
Illinois' moratorium six years ago after a series of
wrongful convictions were overturned. Illinois is second
only to Florida in total number of death penalty
exonerations, Elliot noted.
"In Illinois, the governor declared this was proof
of the catastrophic failure of the death penalty system and
commuted the sentences of everyone. In Florida, it's
business as usual," Elliot said.
[Source: Palm Beach Post]. •
I

------*.. . . . _ -

Florida Prison Legal'Perspectives

POST CONVICTION
CORNER

by
Loren D; Rhoton

The Florida Legislature has provided numerous ways for the State to seek
enhanced penalties against criminal defendants such as imposi~ionof habitual
felony offender, habitual violent felony offender, or prison releasee reoffender
sentencing. While these and other sentence enhancements can be legitimate
methods for increasing sentences, it is not uncommon for enhanced sentences to
be imposed in non-qualifying cases or for such sentences to be imposed in an
improper manner. For example, it improperfor a couI1 to impose consecutive
enhanced sentences for charges arising out of a singie criminal episode. Hale v.
State, 630 S02d 521,524 (Fla. 1993). The instant article, although it may address
habitual offender sentencing specifically, applies generally to most sentence
enhancements 'which arise.in the context of a single criminal episode. It is wellsettled that sentences imposed under a sentencing enhancement statute may not
nm consecutively if the offenses occurred during a single'criminal episode. Staley
v.State. 829 So.2d 400,401 (Fla. 2nd DCA 20,02); see also Boler v. State. 678
So.2d 319,322 (Fla.1996) ("We have held that enhancement sentences arising out
of a single criminal episode may not be imposed consecutively").
, Under Florida Statute §775.084,the Florida Legislature intended to
lengthen the duration of incarceration for individuals found by a sentencing court '
to ,be repeat felony offenders. See Daniels v. State, 595 So.2d 952, 954 (Fla.
1992). The Daniels Court, however, held that increased incarceration may only be
realized through enhancement of the maximum allowable· sentence when a
defendant is found to be an habitual felon, not through imposition of consecutive
sentences. ' Id. at 952. One year later, the Florida Supreme Court further clarified
its position by specifically holding that increased incarceration could not be . ,
achieved by running multiple sentences consecutively when those sentences are'
derived from a single crim~nal episode and have already been enhanced under the
habitual felony offender statutes. Hale v. State, 630 So.2d 521, 524 (Fla. 1993).'
Moreover, enhancement,' coupled ~ith sentendng of consecutive terms of
incarceration, is not authorized under Florida law. Id. at 524 ("We find nothing in
the language of the habitual offender statute which suggests that the legislature
. also intended that,' once the sentences from multiple crimes committed during a
single criminal episode·have been. enhanced through the habitual offender statutes,
the total penalty should then be further increased by ordering that the sentences
run consecutively.").

I

13

Florida Prison Legal Penpectives
Thus, the legislative intent to increase incar~eraii'on fo~~habitual felony
offenders is satisfied via the habitual. offender enhancement.
Hale at 524. No
.
statutory authority grants a: sentencing court the power to both enhance and order
each individual sentence to run consecutively. Id. Should a sentencing court
decline to designate the accused a habitual felony offender, then consecutive
sentences are available, as no enhancement has occurred. Id. In summary, a
sentencing court's options are twofold: (I) designate the accused an habitual
felony offender, enhance each sentence, and, run those enhanced sentences .
concurrently; or (2) decline to designate the accused an habitual felony offender,
and potentially retain the option to run those sentences consecutively.
At this time, there is no bright line rule for denominating a criminal episode
'single' or 'separate.' Echelmeier v: State, 662 So.2d 994, 995 (Fla. 2 nd DCA
1995). Because such a determination is fact intensive, the focus must be placed on
the facts of each individual case. Id. (citing Parker v. State, 633 'So.2d 72 (Fla. 151 .
DCA), review denied, 639 So.2d 980 (Fla. 1994). Courts, however, have provided
guiding principles to assist in making this determination.
In determining whether multiple offenses occ;:urred during 8: single criminal
episode for purposes ,of double jeopardy, Florida Courts look to several factors,
including whether: there are multiple victims; multiple locations for the offenses;
and any temporal break between offenses. Statev. Paul, 934 So.2d.II~7 (Fla
2006) (quoting Murray v. State, 890 So.2d 451, 453 (Fla. 2d DCA 2004). While
the question here is not'one of double jeopardy, the analysis in determining the
existence of a single criminal episode under an enhancement statute, such as the
habitual felony offender statute, is identical. See Staley 829 So.2d at 40 I.
Challenges to consecutive habitual felon sentences under Hale are not pure
questions oflaw, Burgess v. State, 831 So.2d 137, 140 (Fla. 2002), and should
generally be presented in a Florida Rule of Criminal Procedure 3.850 motion for
postconviction relief. Valdes v. State, 765 So.2d 774, 776 (Fla. 151 DCA 2000).
, Due to the fact intensive nature of determining whether the offenses in question
arose from a 'single'criminal episode, and the often resulting need for evidentiary
hearings~ BUrgess, 831 So.2d at 140, the Florida Supreme Court has 'found that
Hale clilit:hs are generally "not suited for resolution in rule 3.800(a) motions. lib,
citing'State v~'Callaway, 658 S·0.2d 983 (Fla. 1995). Thus, ifat all possible, it is
best to 'raise a Hale issue in a Rule 3.850 motion. H~wever,aHale claim can also
be raised pursuant to Rule 3.800 when it is apparent from the face of the record
that the enhanced consecutive sentences arose from a single criminal episode.
Jackson y. State, 803 So.2d 842, 844 (Fla. 151 DCA 2001) ("an evolving body of
case law ... recognizes there may be instances where a Hale claim can be resolved
from the face of 'the record' without the need of an evidentiary hearing.").
Florida Rule of Criminal Procedure 3.800 motions to correct illegal
sentences may be filed at any time after the imposition of a sentence, so long as
the illegality of the sentence can be proven on the face of the record. Valdes, 765
So.2dat 776; West v. State, 790 So.2d 513 (Fla. 5th DCA 2001>'[the primary

--

o

\ 14

'Flor-ida Prison Legal Perspectives

~~~~?~al.e. r~~,;?~~fay~p.;?F~!~,3,(~~9 :T?tiory~ is t~e abs~n~:e ~f a ti~c:r}i~itation on

Its 'apphcatlOn. However, when tIme IS not a factor, such as ~hen the ,.' ,
determination can be. made on the face of the record, rule 3.800motions are.
proper]. Otten, as the Callaway Court held, facts .necessary to support Hale claims
dmnot-be determined o.n·the face of the record. Callaway, 658 So.2d'at9$8.
However, such a holding does not preclude court from ever finding facts '
sufficient upon the face of the record to establish the offenses derived, fro~ a
single criminal episode. Valdes, 765 So.2d at 776. The Sec9nd DistrictCoun of
Appeal also recognized this 'proposition by 'stating that Callaway does not
"irretrievably foreclose relief from consecutively imposed habitual offender
senten~es growing out of the same criminal episode by means ora rule' 3.800."
Adams v. State, 755 So.2d 678 (Fla; 2nd DCA 1999).. In Adams it was noted that a
Hale claim may possibly be proper under R~le 3.800 if the necessary facts "may
be determined without resort to extra-record facts ...." Adams, 755 So.2d at 680.
;,
The need for, rule J.~SO motions. in these situations are dispensed 'With. when
such a detennination can be made from the face of the record without resort to
extra-record facts. See Clark v. State, 826 So.2d 368, 369 (Fla. '2nd DcA 2002)
[trial court erred in denying petitioner's·3.800 motion because consecutively run
, sentencesca~ be challenged under rule 3.800 motions if the offenses arise from a
· singlecrimfnal episod~ 'and such determimit,ion can be made without ne~d for
extra-record facts]; Johnson v. State, 809 So.2d 892, 892 (Fla.2nd OCA2002)
· [rule 3.800 c1aimfaCia//y suffieient to challenge illegality of sentence wh~n "
information charged that offenses occurred on the same date]; Downs v. State,
, 870 So.2d 46 (Fla. 2nd DCA 2003) [remanded based on Burgess and AdalDs which
allows movant to assert Hale claims pursuant to rule 3:800 if supporting' facts'
~vident on face of the record]. .
.
\, .Thus, ifit is evident on the face ofthe record (through t~e cparging ,
info.rm,ation, depositions, trial testimony or otherwise) it is conceivablet\1at' a .court
\VOl.lld'consider a Hale cfaim in a Rule 3.800 motion. As has alre~d)" b~en' ,
, n:tentioned~ it is prefer.~~le to present such a claim in a Rule 3.850 ·mot'oll.....
. "Neveitheles.s, if a 3.850 motion is out ofth~ question due to' expiration of-the>..two .
year 'period of Iimitation's or for:any other reason, it may be advis~ble to.' pursue a
· Hai~ c]aim 'viaa J.800 ,motion,it a valid argument can be made that the·.m~rit'can
,be' determined o~ th~ face ofthe record. Whether pursued by w~y (;)f a 3.85.0.
..... 'tnotiotl for postconviction reli~f ora 3.800 motion to correct ill~gal~en~nce,~
Hale:c1~im may be an,importclnt postconviction attack worth ~onsideri~g'if/Q~e is
sentenced to consecutive habitual offender sentences..

a

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. Lbren Rhoion i~ a member ingood standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
. Rhoton practices almost exclusively in the postconviction/appellate'
,:area ofthe/ow. both at the State and Federal Level; He has assisted "'>
:. ,hundreds ofincarceratedpersons with their cas~s and has numerous,
written appellate opinions.
"

• I

_~.

IS

Florida Priso'n Legal Perspectives

.

.

LorenD. Rhoton

I
-------------Postconviction Attorney
•
•
•
•
•
•

Direct Appeals·
Belated Appeals
Rule 3.850 Motions
Sentence Corrections
New Trials
Fe~eral Habeas Co~pus Petitions

412 East Madison Street,.Suite 1111
Tampa, Florida 33602
(813) 226-3138

Fax (813) 221-2182
Email: lorenrhoton@rhotonpostconviction.com
Website: www.rhotonpostconviction.com
.

.

The hiring of a lawyer is an important decision that should not be based solely on advertisements.
Before you decide, ask us to send you free written information about'ourqualiflcatloris.

.'.

BUYTHEBOOK~ONSALENOW
POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A· Compilation of Selected Postconviction Corner Articles
A collection of Loren Rhoton's Postconviction Corner articles is now available in one
convenient book geared towards Florida inmates seeking justice in their cases. Insights basea
on professional experience, case citations, and references to the relevant rules of procedure
are provided. This book is specifically directed toward those purSuing postconviction relief.

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

16 I-----------~---------------

...

Florida Prison Legal Perspectives

The/ol/owing are summaries ofrecent slale and/ederal cases thai may be usefulltJ or have a significant impact on Florida prisoner.f.
Readers should always read Ihe jull opinion as published in Ihe Florida Law Weelcly (Fla. L. Wee.Hy); Florida Law Weeldy Federal
(Fla. I•. Weekly Federal); Soulhern Reporler 2d (So. 2d); Supreme Courl Reporter (S. CI.); Federal Reporter 3d (F.3dj; or Ihe
Federal Supplemenl 2d (F.Supp. 2d), since these summaries arelor general injormation only.. •

DISTRICT

COURTS

OF

APPEAL
Walters v. State, 31 Fla.L.Weekly
DI932 (Fla. 3d DCA 7/19/06)
Martin Walters appealed his
convictions for attempted second
degree murder with: a firearm,
aggravated assault with a firearm,
and possession of a firearm by a
convicted felon.
In relevant part of this case,
the trial court had bifurcated
(separated into two· parts) the trial
jury proceedings. In the first phase
the jury found Walters guilty of the
attempted murder and aggravated
battery charges. Afterward, without
reconvening the jury and over
Walters' objection, the trial court
adjudicated Walters guilty of the
possession of a firearm by a
convicted felon charge in a second
phase proceeding.
The appellate court opined
that the trial court erred in its
bifurcated procedure. Walters case
was· a jury trial case.·
See,
Fla.R.Crim.P. 3.251, 3.260. The
factual determinations of guilt or
innocence needed to be made by the
jury. "The defendant declined to
stipulate that the trial judge could
determine the existence of the prior
convictions, so the defendant was
entitled to have a jury determination
that he was a convicted felon." See,
Jackson v. State, 881 So.2d 711, 716
(F1a. 3d DCA 2004). Although
Walters was found to possess a
firearm due to the jury convictions in
the first phase of proceedings, it was
not the jury in the second phase that
made a finding that Walters was a
convicted felon.

Due to the' findings written
here in relevant part and other errors
the trial .court had made in the first
phase of the trial jury proceeding,
Walters' case was reversed and
remanded for a new trial.

Mora
v.
McDonoug~
jI
Fla.L.Weekty D 1937 (PI DCA
7/20/06)
In Julio Mora's case, the
Leon County Cireuit Court dismissed
Mora's petition for writ of
mandamus that sought relief from a
.disciplinary
action
from
the
Department. of Corrections (DOC)
that resulted in the loss of gain time,
because it reasoned it did not have
jurisdiction to review the case.
Apparently
'~misunderstanding" the ruling in
Schmidt v. Crusoe, 878 So.2d 361
(Fla. 2003), the case relied on in the
dismissal of Mora's petition, it was
reasoned that a chal1enge to the loss
of gain time is aDaJogous to a
col1ateraJ challenge to a sentence in a
criminal proceeding because it
directly affects the inmate's time in
prison. Thus, in citing Schmidt, the
circuit court found that Mora's case
was.a collateral criminal proceeding
to .the judgment and sentence that
resulted in Mora's incarceration. As
such, because a circuit court does not
have the authority to review the
legality of a ruling from another
circuit court, the circuit court
dismissed Mora's petition without
prejudice to allow Mora to seek relief
in his sentencing court.
In Schmidt, it was held that
an action chalienging the forfeiture
of a portion of a prisoner's
previously
earned
gain
time
constitutes a collateral criminal

proceeding, to which section 57.085,
Florida Statutes (Florida's Prisoner
Indigency Statute), does not apply,
reasoning that such an action directly
affects the time an inmate spends in
prison.
Subsequently, the First
District Court of Appeals in Burgess
v. Crosby, 870 So.2d 217, 218-19
(Fla. I" DCA 2004), had explained
that the opinion in Schmidt intended
to limit the application of its holding
to the question of the applicability o(
section 57.085 in determining a
prisoner's indigency in such actions.
It was concluded that such actions
are
not
collateral
criminal
proceedings for the purpose of
determining venue. Thus, it was
decided that the cireuit court for .
Leon County, where the DOC is
headquartered, has subject matter
jurisdiction over claims challenging a
disciplinary action of the DOC
resulting in a loss of gain time and
Leon County is the proper venue for
such claims. As such, the Leon
Court had jurisdiction to rule on
Mora's petition, according to the
appeal court.
.
The order that dismissed
Mora's petition was reversed and the
case was remanded to the trial court
to address the petition on the merits.

Cole v. State; 31. Fla.L.Weekly
DI975 (Fla. 3d DCA 7/26/06)
. John Archie Cole's case on
appeal involved a denial of a motion
for transcripts he had filed in the
lower court.
. Cole was sentenced after
entering a guilty plea in January
1996. He was apparently attempting
to file a rule 3.850 motion in the
lower court where he had the belie~
that in order to build his motion, it

17

Florida Prison Legal Perspectives:
.

was necessary to obtain .the
transcripts of the lower court's
proceedings.
The appeal court cited to
their opinion in Baldwin v. State, 743
So.2d 78 (Fla. 3d DCA 1999), where
it was explained that transcripts' are
not a necessary tool for the
preparation of a legally sufficient
rule 3.850 motion. It was opined that
one must first file a 3.850 motion
setting forth his alleged grounds for
relief in order to secure a copy of
portions of his trial record. And, one
must rely on his best recollection of
the court proceedings in preparing
his motion. See also, McFadden v.
Stale, 711 So.2d 1350 (Fla. I st DCA
1998).
Consequently, the denial of
Cole's motion for transcrip~ was
affirmed and it was noted that he
may either attempt to obtain the
documents he sought from his former
counsel, or reapply to the trial court
after a motion for post conviction
relief had been filed.

Grier, v. Slate, 31 FIa.L.Weekly

02045 (Fla. 4th DCA 8/2/06)
Jewel Grier appealed a trial
court's denial of his motion for
mistrial that was' filed after
comments were made during his trial
regarding his right to remain'silent.
During Grier's trial, a police
officer testified that Grier'refused to
have his statements,' where ',he
allegedly admitted to' aspects of the
charged
crimes
against
him,
recorded. The police officer further
testified that Grier requested' an
attorney to be present when' he
refused the recOrding :of ' those
alleged statements."
" '
Grier's defenSe counsel had
objected to the police officer's
comments and motioned the; trial
court for a mistrial: The' trial court
denied the motion and; subseQuentlY,
the trialjwy found Grier guilty ofthe
charged crimes against him~
On appeal, the appellate
court opined that any comment that
is "fairly susceptible" of heing
18 interpreted as a comment on

. '

.

1(""1'"

defendarit' s" right to' remain \ 'silent
will' be treated as such. ' Such
Comments regarding'silence are high
,risk' errors· because there is a
,substantial likelihood that such
comments will vitiate the right to a
fair trial. See, State v. DiGuilio, 491
So:2d 1129 (Fla. 1986). But, also
see, Brack v. Slate, 919 So.2d 578,
'580 (Fla. 4th DCA 2006); and
'Fernandez v. State, 786 So.2d 38,40
(Fla. 3d DCA 2006).
In Fernandez, it was opined
that a defendant who has declined to
'have his statement recorded, after he
waived his Miranda rights and made
a full statement, comments made
regarding silence is then not
impermissible.
More on point with Grier's
case however, and what Grier relied
heavily on, is Kiner v. State, 824
So.2d 271 (Fla. 4th DCA 2002),
where it has been opined that such
comments' made on silence as
'occurred iJi' Grier's case were found
to be impermissible and causes a
reversible error.
Grier's
Accordingly,
convictions were reversed and the
case was remanded for a new trial.

Terry

v.

McDonough,

31

FIa.L.Weekly 02048 (Fla. 1st DCA
8/4/06)
A petition for writ of
certiorari was filed by Janies Terry in
this' case,' addressing an Order
Denying 'Petitioner's Complaint for
Writ of 'Mandamus and 'an Order
Dehymg";Supplement Petition for
Modificationofclerk's Certificate of
'Indigence, where beSoUght removal
of it lien placed on his inmate trust
account.
In Schmidt v. Crusoe, 878
So.2d 361 (Fla. 2003), the Florida
Supreme Court beld that a challenge,
as was thidssue in Terry's case, to a
disciplinaJy report which results in
the loss of gain time is a "colla...ral
criminal proceeding" and is excluo i
from the prisoner indigency statuw
(section 57.085, Florida Statutes).
See, Jd at 367. Further, the First
District Court of Appeals, in Cason

:~.: CJ.'o;by; 892 So.2d 536'\(Ffu., 'JIII
DCA 2005), haS explained that, as a
consequence, no lien is authoriZed on
'an inmate's account wheJ\ the aCti~
involves the loss of gain time. See, '
Id at 537. The Florida Departinent
of Correction argued th8t, due to
changes 'that have' occurred' 'to
sections 28.246(4) and 57.082('5),
Florida Statues, liens on" ~
accounts ~ authorized. ' Th8t
argument was rejected however, ,in
Wagner v. McDonough, 927 So.2d
216, 217 (Fla. III DCA 2006).
Consequent1y~ the order
Terry challenged, in regaid to-d1e
one that upheld the ~te~,,~gaih~'l'«~s
inmate aCCQunt, was' quasheet .and
the case was remanded ~th
directions fQr the trial court 'P.tei~ ,
the Department of C~rreCtionsI:
dissolve the lien, and ':\f~
reimbursement of any ~dli that
were withdrawn due to that lien.
A reference notation" ~~
included within Terry's; ~ ,~
regarding the appellate, ~~s
jurisdiction to review the c~l~p:
"Review of the indigellCY order· ~
certi~rari is proper because the ~~qlp
case IS before the court on reVieW. of
a final order of the lowertrib~.

to

to

See, Flowers v. M~PtJ!,oug";! ~i
Fla.L.Weekly DI808 (pJa. l~ PG~
7/3/06) '(reviewing by certiorilrf; jl ,
final order of the triaI~.tn.t de*~g
,petition for writ of mandamus on ~"
merits and removinga·li~n ini~~
on the petition~r's, i~ate '~@t:J;
McCaskill. v. ' ,.. McD4naugh~'" ~3:t
FIa.L.Weekly 01811 (Fla.)at DCA
,7/3/06) (same): Howe\ier;wh~~~e
case "concludes in the 'lower tribunl1
on gr(>unds ~ther
meri~
review is, proper byappeaJ,;c)t~e
order concluding the" .~.';:~~e,
Lopez
v.Mcl)o1UJ1lgh,
31 '
FIa.L.Weekly DI97t'(FIa. 1~,DC~
7126/06) (explaining tb8i wh~ 'tIi~
lower coUrt dismiSsed the petitioner's
petition for writ ofmandaJn~
because the isSue was moot,
ofan indigencyorder in the.case~
properly obtained by appealing~~
order dismissing the petitioner~s
mandamus petition); see also, Green

than .1IJe :

teYieiV

Florida Prison Legal Penpectives
v. Moore, 777 So.2d 425. 426 (Fla.
I II DCA 2000) (explaining that
'review of a circuit court order
regarding a prisoner disciplinary
matter [i]s properly by certiorari;'
however, when 'the circuit court
'proceeding is concluded on grounds
other than the merits,' 'the proper
method to review the circuit court's
decision' is by appeal. rather than
certiorari)." .

1992), stating: "That policy has
. received clear recognition in both the
legislature and the courts. The
legislature bas also recognized that
time can sometimes be an important
element in the right of access to
public records. Hence, the provision
for early hearings on public records
cases."

"Whenever an action is filed
to enforce the-provisions of this
chapter [119, Florida Statutes], the
court shall set an immediate hearing,
giving the case priority over other
See, section
pending cases."
119.11 (I), Florida StatUes.
Accordingly, Woodfaulk's
case was reversed and remanded
with instructions to the trial court to
schedule a hearing on the petition.

Woodfaulk v. Stale, 31 FIa.L.Weekly
D2125 (Fla. 5th DCA 8/11/06)
Gregory Woodfaulk's case
revolved around the non-compliance
of a public records request, and the
denial of his petition in a lower court .
for an accelerated hearing .and
immediate compliance with . ~e
. public records request from the state
attorney's office pursuant to section
[Note:
Although Chapter 119.
119.11, Florida Statutes (2005).
Florida Statutes, does not require that
In relevant part, Woodfaulk
a petitioner of an. accelerated hearing
alleged in his petition for an
and immediate compliance with
public' records request-attach copies
aCcelerated hearing that he received
DO response to two separate public
of any requests sent to the custodian
of records, where copies of records
records requests from the state
are, sought,· as explained in a prior
attorney's office. He also alleged
that .he made no copies of those
FPLP it" would be beneficial to
·requeSts. but stated in an attached
retain copies of such in the event
affidavit, that ~as unsigned' and
proof will accelerate compliance of
unnotarized, that he offered to pay
the records request]
for the duplication cOst of the
records. The lower court denied
Ward v. State, 31 FIa.L.Weekly
Woodfaulk's petition, ruling that he
02160 (Fla. 3d DCA 8/16/06)
·waS not being denied his records, but
Michael
Ward's _case
that he was not entitled to statepresented the appellate ~urt with an
funded copies to assist him in
issue of whether' the State has
.authorimtion under the Jimmy Ryce
preParing' any collateral motions or
for any other reason.
Act· to seek· to involuntarily commit
On appeal. it was rioted that
to the Department of Children and
·Woodfaulk was not requesting a free
Families for care and treatment a'
Copy of the documents, as shown by
person who has been cOnvicted of a
the affidavit, although unsworn and
sexually violent crime in the past
unsigned, that was part ofhis petition
(prior to The Act's enactment) and
filed with the lower court.
who is brought into "total
'The appellate court opined
confinement" after the Act's
however, Woodfaulk was not being
effective date, for any crime. sexual
deprived of any constitutional right
or non-sexual innature~
See, Roesch v. Stote, 633 So.2d I, 3
The' appellate court, after a
(FIa. 1993). It was noted thatFlorida
very lengthy discussion, opined that
though, bas a strong public policy in
the State is authorized to
. favor of open government as
involuntarily commit one under the
expressed in Salvador v. Fennelly,
However~
above circumstances.
593 So.2d 1091, 1094 (Fla. 4th DCA
because
the
appellate
court

considered this case would have
significant statewide -impact, it
certified the following question to
the Florida Supreme CoUrt as one of
great public importance: "Whelher a
person who was not in custody on
January I, 1999 (the effective dale of
The Act), is eligible for civil
commitment under lhe Acl if lhal
person was· sentenced to total
confinement after January I, 1999,
but lhe qualifying conviction
occurred before January I, 1999."
Ward was denied relief, with
an affirmative answer to the issue
presented. .
Reed v. State, 31 FIa.L.Weekly
02169 (Fla. 4~ DCA 8/16/06)
Lawrence Reed appealed a
denial of his motion to suppress
evidence found as a consequence of a
police officer entering his motel
room, where Reed was lying on a
bed asleep. due to being "concerned
by Reed's unresponsiveness" after
calling out to him a few times from
the doorway.
In relevant part, the
background of this case began when
an unidentified man told a police
officer that a couple of "crackheads"
were in a motel room smoking crack.
The tipster further informed the
officer that the man in ~e room had
stolen his own mother's car, cash,
and jewelry.
After verifying who was
registered to the room indicated by
the tipster, the officer went to the
room. knocked on the door, and .·a
woman opened the door. From the
doorway the officer was able to see
Reed lying on a bed and after calling
out the. Reed a few. times, with no
response from him, entered the motel
room. After shaking Reed awake,
the officer asked for his ID and Reed
provided his driver's license. It was
then discovered that Reed's license
was suspended and that Reed was on
felony probation. Reed was placed
under arrest for "possession of a
suspended driver's license" and
violation ofprobation.

19

Florida Prison Legal Perspectives
Thereafter.
the
officer
contacted Reed's mother, who came
'to the scene, identified her car, and
indicated that she did not wan~ to
press charges against her son. Then,
as a result of either Reed or his
mother giving permission for the car
to be searched, a "very small amount
of cocaine" was discovered in the
car's ashtray. Consequently, Reed
was further charged with possession
ofcocaine.
'
The appella~ court, after
quoting and citing to both the Fourth
Amendment and Article I, Section 12
of the Florida Constitution, opined
that Reed's case presented two
Fourth Amendment challenges: The
tip received by the officer, 'and the
officer's entry and stay in Reed's
motel room. Because it was opined
that the officer's stay in' the room
was dispositive of the case, the
appellate court declined ,to address
the challenge to the tip.
The basic principle of Fourth
Amendment law is that searches and '
seizures inside Ii home without a
,wamint
are
presumptivelY
unreasonable.
See, Anderson v.
State, 665 So.2d 281, 283 (Fla. Sib
DCA 1995). Also, for purposes of
41b Amendment, a mo~1 room is
considered a private dwelling when
the occupant is legally there, has paid
for the room, and has not been asked
to leave. See, Gilbert v. State, 789
So.2d 426, 428 (F]a 41b DCA 2001).
Noted in Gnann v. State, 662 So.2d
406 (Fla. 2d DCA 1995), the state
has the burden of s~owing that· a
warrantless search comes within one
of five ,established exceptions: (1)
consent; (2) incident to a lawful
arrest; (3) with probable cause to
search
but
with
exigent
circumstances; (4) in hot pursuit; and
(5) stop and frisk.
,
Reed's caSe centered on the
exigent circumstances exception;
Exigent circumstances are those
characterized by "grave emergency",
imperativeness for safety, and
compelling need for action, as judged
by the totality of the circumstances.
Feared medical emergencies are
20
'

included in the scope of exigent
circumstances and permit law
enfu~menttoenterandinvesti~te

a home or' motel room without a
warrant, as long as low enforcement
does
not
"enter
with
an
accompanying intent either to arrest
or search."
Such medical
emergencies can include reports of
an individual suffering froni a drug
overdose. See, State v. Moses, 480
So.2d 146 (Fla. 2d DCA 1985).
However, an entry based on an
exigency must be limited in scope to
its purpose. Thus, an officer may not
continue his or her search once it
has been detennined that no
exigency exists. See, Riggs, Id, at '
279.
It was concluded that
whether or not the officer's concern
for Reed's health was legitimate and
supported by the totality of the
circumstances known to the officer,
once the officer confirmed that Reed
had 'not overdosed, he was required
to leave the motel room because the
exigency dissipated and no criminal
activity was apparent within "the
scope of the exigent circumstances
exception to the warrant requirement
and constituted an unreasonable
search and·'seizure vioiative of the
Fourth. Amendment. . Cons~uently,'
the lower court erred by denying
Reed's motion to suppress that was
made preceding his plea of nolo '
contendere to both ofhis charges.
A~rdingly, Reed's case
.
was reversed and remanded for Reed
to be discharged.

indigent but imposed a lien a~nst
his trust account for filing fees and
costs. ,Figueroa then' filed a motion
to dismiss the lien. Subsequently,
the lower court denied the mandamus
petition on its merits but, claimed
Figueroa, failed to issue an order on
his motion to dismiss the lien.
Here, the appeal court
opined 'that Figueroa failed to
recognize that when a final order has
issued and relief sought by motion
has not been affirmatively granted,
the motion has been denied. To'
.support this opinion, the appeal court
cited to Griffin v. Workman, 73
So.2d 844 (Fla. 1954); Kaplan v.·
Morse, 870 So.2d 934 (Fla. Sib DCA
2004); and Quinn v. Millard, 358
So.2d 1378 (Fla. 3n1 DCA ]978).
Consequently, the appellate court
opined that a review of the order that
i~posed the lien could have been
obtained by raising it as an issue in a
challenge to denial of the underlying
mandamus petition by the lower
court in accordance with Sheleyv. ' .
Florida Parole Comm 'n, 720 So.2d
216 (Fla. 1998). See'~ Banks. v.
State, 916 So.2d 35 (Fla. 1st DCA
2005).
See also, Terry ".
McDonough, in these Notable
Cases.)
Figueroa's petition was
denied ~use he had failed to
identify any ministerial dutY which
the lower court failed to perfonn. _

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Florida Prison Legal Perspec8/22/06)
tive$. To obtain adv~rtising'and
Domingo Figueroa sought a
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I

Florida

P~ison

u.s. Supreme Court Asked
to Apply Blakely v. Washington
Retroactively

I

I

.

Legal Perspe.ctives

n 2004 the U.S. Supreme Court, in Blakely v.
Washington, fairly rocked the criminal justice world
when it ruled that judges cannot increase a defendant's
sentencebased on factors, such as injury or cruelty, that
were not determined to be true and applicable by a jury.
The Sixth Amendment right to triaL by jury requires that
any fact essential to the time that a defendant may be
sentenced to prison for must be proved beyond a
reasonable doubt to a jury, held the Blakely.court. When
that decision was first announced it was thought by many
that thousands of defendants whose sentences had been
enhanced bya judge based on factors not determined by a
jury would have to be resentenced. However, it quickly
became apparent that lower coLirts had no intention of
affording defendants whose cases had become final, and
even those that were still actively on appeal - or in the
"pipeline" - any benefit from the Blakely decision.
, Where·the Supreme Court had not said that Blakely was to
be applied to cases retroactively, then most lower "courts
refused retroactive application. The Supreme Court is now
considering whether the sentencing rule announced in
Blakely should apply retroactively to pipeline cases.
On November 7, 2006, oral arguments were heard by
the Supreme Court in 'a case expected,to result in a
decision answering the retroactivity question that was left
open in Blakely: whether the Blakely rule should apply
retroactively to defendants who were sentenced before
2004 but whose appeals were not yet over at the time
Blakely was decided.
, At the oral argument, the Justice Department urged the
court not to apply the Blakely rule to past cases, arguing
. that the decision in that case merely changed criminal
lsentencing rules and is not itself a ''watershed'' rule
·affecting the fundamental fairness of a trial.
Stanford law professor Jeffrey Fisher argued that his
client, Lonnie Lee Burton, should get 'the benefit of the
Blakely rule. Burton had been found guilty of rape,
robbery and burglary by a jury. The judge then sentenced
'Burton to 304 months for the rape, 153 months for the
'r:obbery, and 105 months for the burglary (almost 47
'years) and then ordered the sentences to run
:consecutively, rather than the normal concurrently, based
·on Burton's criminal history and other factors that had not
·been decided by the jury.
The justices' questions focused on the intricacies of
:sentencing law, in addition to technical rules that wouid
.'; affect Burton's particular case. Justice John Roberts
; indicated that even if the rule announced in Blakely is a
''watershed'' rule, ~urton might still be technically barred
.. by other rules from receiving its benefit.

Justices Kennedy and Breyer noted -in their comments
that the court remains very divided over sentencing and
that those justices who dissented in Blakely remain
dissatisfied with the direction that has been taken in recent
cases.
A decision is expected on Burton's case by the spring
of 2007. A favorable decision could affect and benefit
thousands of prisoners nationwide. _

-us SUPREME'COURTNotable Cases on the
2006-07 Docket
he us Supreme Court started its annual term October
l. On the court's docket for the 2006-07 term is
Cunningham v. California, a case presenting the question
ofw~ether California's sentencing law, that allows judges
to . Increase sentences based on their factual
determinations, rather than on a jury's determinations
•
th
.
'
Violates defendants' 6 Amendment right to a jury trial
~d re~ent Supreme Court decisions that limit judges'
discretion.
.
Also, in Whorton'v. Bockting the high court will
consider whether a 2004 Supreme Court decision barring
the introduction at trial ()f certain out-of-court statements
should apply retroactively to thousands 'of criminal cases
that were in the pipeline at the time of that decision. _

T

AI>VERI'ISINC NOTICE
Oul of nHlcern for our
IIIcmbers', the FPLP staff tril's
10 eusurc that the advertiscrs
in FPLP are reputable and
qualifil'd 10 providc the Sl'rvices being offered. However,
we cannot mcet evrry advertiscr so mrmbers/readers an'
advised to always personally
l:IlIIlm:t :Illvcrtiser"s for furthl~r
information about their" qualifiGltions Ill" sl'rvircs bl'[o('c mak-'
ing a decision. to hire thrm or
I'urchasl: a sen'icc or product.
You should never send legal or
01 her lhieu mCllts to an advertiser before conlacting them
and rel"l'iving directions to
seud such malerial.

2.1

Florida Prison "Legal Perspectives

ConfrontingConfinement ,
A Report by the CQmmission on ' ,
Safety and Abuse in America's Prisons"
June 2006, 119'Pag~s

I

n June 2Q06. after conducting a 15 month study. the
Commission on Safety and Abuse in America's Prisons
released a major report entitled,Confronting Confinement.
The findings and conclusions of the report are a
devastating indictment against Ameri~a's, jails and
prisons.
'
It .should be noted that this was not a commission of
liberal "bleeding hearts," but was a blue ribbon panel cochaired by John Gibbons, a former ChiefJudge ofthe U.S. '
Court of Appeals for the Third Circuit; and NichOlas de B.
Katzenbach, a former Attorney General of the United,
States.
The report's preeminent statement, and the reason it
should be important to a wider a1Jdience than just
prisoners and their families and advocates, is: "What
happens inside jails and prisons does not stay inside jails
and prisons. It c0!lles home with prisoners after they are
released and with correctional officers at the end of each .
, day~s shift. We must create safe and productive conditions
of confinement not only because it is the right thing to ~o,
but because it influences the safety, health, and prosperity
of us all."
' .
Most people feel that what happens in jails and prisons
doesn't affect them and so they shouJdn't care or be
concerned about it. This report illuminates that· attitude
couldn't be more wrong. What happens in jails and
prisons reflects on our society as a whole and it comes
back into. our c'omritunities with a veng':8nce, notes the
report.'
"
. ,
.,
Every year, an ~stounding 13.5' million people spend
time in jails or prisons, and. 95 percent of them are
eventually released back into soc!ety and ,our
communities. Many reenter society worse than ,when they
went in due to the' conditions they are subjected to while
incarcerated. 'Often they are more,hardened felons, ~~ger
to commit' new crimes" or mentally' ill, from abu~ive,'
damaging conditions of 'confinement or lack oftreatmeqt
for a preexisting mental illness. Many are responsible for
spreading infectious diseases back into'society, such ,as
h~patitis, ~ tuberculosis, mv" and ,deadly drug-r~sist~nt
staph infections (MRSA), that were I\ot tr:eated whtle;they
'
.'
were incarcerated.
'Co1z.fronting Confinement notes' that, while Congress
and states passed get-tough-on-crime laws and have, went
on prison- and jail-building binges to house the ever
increasing number of people being incarcerated by those
laws, they often did so without providing the necessary
funding and resources to allow jails and prisons to
, adequately cope with the influx of prisoners. The result,
2.2.

'this;report' pointS out sCathingly and in much detail; 'inhat
tQO many of our jails and prisons are unsafe,' unhealthy,
andior inhumane, and the effects are spilUng over, right
back into our communities.
The Commission divided its findings into broad
categories followed by recommendations:
~

Conditions of Confinement

• Violence: The report finds that while the level of
violence in A!llerica's'prisons and jails has decreased from
that of a few decades ago, violence still remains a serious
problem in many facilities to which many factors
contribute. Overcrowding, idleness, lack of programs, and
obstructing maintenance of family ties all contribute to
violence inside'prisons and j~i1s. But violence 'and abuse
are not inevitable and 'can be prevented, by reducing
crowding, promotion of productivity and rehabilitation,
the, use ofobjective ,classification and direct supervision,
using force only as a last resort, better ,training of staff,
'employingsurveillancete~hnology,and supporting
community and family bonds, notes the report.
• Segregation: The increased use 'of segregation,
solitary confinement inside jails and pr,isons is often over
done, unnecessary, often contributes to an increase" in
. violence, is more costly, and actually threatens public
safety where prisoners confined in such mentally-affecting
confinement are often released from same' directly back
into society. The report recommends that segregation
'should be used only as a last resort, that time spent in
'segregation 'shoqld be more 'productive through
programming, and that prisoners shOuld not be released
dir~t1y frpm segregation to the streets without a transition
period. Further recommendations are segregated prisoners
should have regularandmeanfngful human contact ·to
offset dangerous mental effects of sensory deprivation.
confinement and be free from extreme physicalconditions
that cause. 'laSting 'harm. Additionally, mentally 'ill
prisoners particularly vulnerable to debilitating effects·~f
:segregation'should be 'screened and assessed: to 'ensure
proper treatment in secure therapeutic units .instead of '
.regular segregation.
' ,"
:'~ Laborand Leadership, .

The report posits that better safety inside) prisMs' an~
jails depends on changing the institutional culture, w~i~h
cannot be accomplished without enhancing theeorrectloris
pr6fession at all, levels: It recomm¢nds that a culture of
mutual respect;' grounded in an 'ethic of respectful
behavior . and iilterpel'!ional. communication, benefits
,. prisoners and staff alike; that the recruitment and retaini~g
of, a.' qualified,
diverse
workforce
advanoes
prpfessionalism; and that only the most qualified leaders
should be hired who will use their 'positions to promote '
safe and healthy prisons and jails, while the skills and

Florida Prison Legal Penpeetives
capacities of middJ~ managers· should be enhanced and
developed.

~ Overslgbtand AccountabilitY .
According to the report, most correctional facilities are
walled off by more than physical walls; they are also
walled offfrom externalmonitoring and public scrutiny to
a degree inconsistent with the responsibility: of public
institutions.
Where jails and prisons directly affect the health and
safety of millions of people every year, accountability is
essential. Independ~nt inspection and monitoring is the.
most important mechanism for providingth,at
accountability and should be implement~ ilJ every state.
Further, federal courts have, an imp'ortant role to play in
providing oversight and correction, yet their ability to do
so has been severely curtailed by the misguided 199~
Prison Litigation Reform Act (PLM) which should be,
rolled back, the report recommends. Professional
standards should be strengthened; meaningful internal
complaint systems should be developed; individual
citizens and organized groups,' including judges and
lawmakers, should be encouraged to visit facilities, and
media access to facilities, prisoners,' and correctional data .
should be expanded.
~

Knowledge and Data

n~tion has the talent and know-how to transform all
into institutions that we can
,be proud ofand rely on· to serve the public's interests,
institutions that we would trust to ensure the safety of
someone we love, places of opportrmity' as well as'
punishment. We hope you will join us in this import,",t
work.
auf

oj our'co"ectlonal facilities

To obtain a copy of Confronting Confinement, write to:
Commission on Safety and Abuse in America's Prisons,
601 Thirteenth St, N.W., Suite 1150 South, Washington.
DC 20005. Or it can be downloaded from the
C!->mmission's website at www.prisoncommission.org _

.FDOC's New Secretary:
Not a .Man to be Trifled.With

E

arlier this year, after a ineetingwith 400 of the state's
top prison administrators, Florida's new prison's chief
was flooded with anonymous emails and letters from
people inside and outside of the system.' Sometimes. more
than 200 emails a day streamed into Secretary ,James
McDonough's computer. Whistle blowing Department of
Correction'S employees cracked the department's
notorious "code of silence" that has allowed corruption to
flourish in the prison system for decades. Many told
McDonough they feared for their careers, their families or
.their very lives, if they came forward with what they

The report also finds that uniform nationwide reporting
on safety and abuse in jails and prisons is essential, to " mow.
.
improving the conditions in same. But that much of .the
'Secretary McDonough could sympathize, he's received
data now available is incomplete and, unreliable and
threats against his life since he took over the department
actually hampers the ability of corrections leaders,
after the former secretary, James Cr.osby, was ousted by
legislators, and the public to make sound decisions about
the governor in February and then indicted on federal
jails and prisons.
.
corruption charges.
The report recommends that federal legislation should
Shortly after McDonough took over with a mandate to
be enacted to support meaningful data collection; that the
.clean up the. scandat-riddelJ prison system, he waS warned,
federal government and states should invest· in developing
. a~onymously, not to visit 'certain prisons in the notorious
knowledge about the link between safe,' well-run
"Iron Triangle" of North Central Florida maximumcorrectional facilities and public safety; and that federal
security institutions;
and state governments should mandate t~atan impact
But the West Point graduate and former Army
statement be required for all pr9Posed legislatio~ that
commander doesn't see the punks and cowards who think
would be required for all proposed legislation that would,
they, are tOllgh because they have abused prisoners for
change the size,. demographics, or otherpeitinent
years with impunity.
.
characteristics of prison and jail populations..
. "It' was apparent that you had elements of gansterism
come into' play here," McDonough said. "When the
Summation
.
information was passed to me that there were certain
No doubt Confronting Confinement is destined to be
places I better not go, that's where I went."
viewed as an important report in the correctional field. But.
McDonough, who might be considered the real deal, is
it will be equally valuable to anyone concerned abOut or
also a graduate of the Massachu,setts Institute of
involved with jails and prisons in this ,country, which
Technology who served a full career in the u.S. Arm as an
should be everyone. as this report deftly points out' in
officer. Dilring his active service he held many key
easily readable language. As the Commission Co-Chaill assignments, including command at ~very .Ievel from
write in ~~ir introduction to Coryronting Confinement: '
platoon (in Vietnam) through brigade senior military
assistant to the Supreme Allied .Commander. Europe;"3.

'",

.

Florida Prison Legal Perspectives ' '
Director of the School of Advanced Military Studies;' and
was the principal author of the Army's central war
fighting doctrine, Field Manual 100-5, Operations. He
concluded his career in comman~ of the Southern
European Task Force Infantry Brigade (Airborne) with
operational deployments 'to Africa (Rwanda, Zaire,
Uganda) and the Balkans (Bosnia).
To the. rats now layin'g low inside the prison system
hoping that McDonough is replaced when a new governor
is, elected this year, he warned them, "I'm not a man to be
,
trifled with."
Since taking over the nation's third largest prison
system, with 27,000 employees and over 88,000 prisoners,
McDonough has not hesitated to battle with corrupt
bureaucrats and employees, upset labor unions and
dodging lawmakers.
So far McDonough has fired dozens of administrators,
wardens and middle managers. When he ordered random
drug testing of all DOC employees earlier this year it sent
a shock wave rippling through the ranks, with the union
that represents correctional employees speaking ,out
against the testing.,
'
Eventually the Police Benevolent Association went
aJong with the, rlJlldom testing, but it remains leery of
McDonough. "I think it would be helpful if he realized
this is not the' military," said PBA executive 4irector
David Murrell.
"Morale has gone up, integrity has gone up,' and
professionalism has gone up. Most people are very proud
of that," .McDonough said. He has shown that he is not
afraid to buck a culture that has thrived on corruption and
where rural prisons spawn company towns where prison
jobs are handed down generation to generation.

Under Pressure
During September Mcbonough was faced with a new
challenge when a private company, Tennessee-based
Prison Health Services, withdrew after completing just
nine months, on a 10-year contract to provide health care
, to 17,000 prisoners in 13 South Florida prisons. (See:
FPLP, Vol. 12, Iss. I, "Cheap Health Care for South
Florida Prisoners," pgs. 1-3.)
After underbidding its nearest cpmpetitor by tens of
millions of dollars to get the. contract in January 2006,
PHS said it had underestimated how many prisoners
would require hospitalization.
McDonough, who defends ,privatization,' directed that
new bids be submitted for the $800 million contract, and
said PHS could submita new bid also. Some lawmakers
.weren't satisfied with thatsolution, saying PHS violated
the original contract and must be fined for it. '
"The DOC can allow PHS to re-bid for more money on
a second contract, but the company first needs to be held
accountable for any confirmed violations under the
original contract," Sen. Dave Aronberg, D-Greenacres,

24

wrote to McDonough in early October. "The terms of the
original contract need to be enforced."
McDonough responded that he was still studying the
PHS performance reviews and had' not yet decided
whether fines would be appropriate.
, Rep.' Mitch Needelman; R-Merritt Island, who sits on
the' subcommittee that oversees the DOC's budget, blames
the prior DOC administration for not providing enough
oversight. "The root·ofthe problem probably comes from
DOC not keeping track of the numbers. Is it on the right
track now? We'll see," Needelman said. '
PHS spokeswoman Martha Harbin said the company'is
expecting fines, which she says is just the cost of doing
business with the state on a large scale.
Noone seemed to have comments about what impact
any contract violations had on prisoners' health care while
PHS had the original contractor whether prisoners'
subjected to substandard care resulting in injury should be
compensated; if they still live.
Forging Ahead
Despite sonie criticism, Jim McDonough is counting
his successes and forging ahead. After witnessing firsthand the horrors of ethnic cleansing in Bosnia, the mass
murder of Rwandans, and now widespread corruption
spread throughout all levels of a state agency, he says he
remains an optimist.
"You cannot be indifferent to the bad things that can
happen, pretend that they don't exist. But you have to
understand the importance of life;, the beauty of it, the
ability of just a few people to do much good," said
McDonough. "I'm looking 'for leaders of character, and I
thinkin this department, I'm doing very well."
[Sources: Tallahassee Democrat; FDOC records) _

Sent~nchlg ,pelayed

for
Former FDOC Secretary
JACKsONViLi..E~ Form~r Florida Departm'ent, of,

Correction's Secretary James Crosby and ,~is right-hand
man, f9rmer Regional Director Allen Clark, pleaded guilty
in July to federal corruption charges of hilving accepted
$130,000 in kickbacks from a private subcontractor. As
part of their plea deals, both men were suppose to
cooperate \Vith federal officials in. a,' continuing
investigation" into corruption within the Florida prison
,system and' b~ sente~ced October 25. On October 11,
however7 U.S. District Judge Virginia M. Hernandez
Covington rescheduled their sentencing for January 25,
2007. Both CrosbyandClark remain free on bond ~ntil
the sentencing.
.'
The' decision to dehiyHhe sentencing was made in an
order granting motions for a postponement made by both

Florida.Prison Legal Perspectives
the U.S. Attorney's Office and attorneys for Crosby and
Clark. "As we have said in our motion, we need more
time," said Steve Cole, a spokesman for federal
prosecutors. "He (Crosby) is cooperating and we have an
ongoing investigation and beyond that I can't say
anything."
Sources in the know say that the continuing
investigation more than likely means that others may still
be implicated in criminal activity involving the
Department of Corrections, but does not necessarily mean
that Crosby and Clark will face more charges.
Apparently federal officials want more from Crosby
and Clark before their sentences are handed down. In the
fed's motion to delay sentencing, Assistant U.S. Attorney
Donald Pashayan'wrote, "Cooperation is'not yet complete
in either case."
Steve Dobson of Tallahassee, Clark's attorney, said
Clark's ~'cooperation is ongoing." Crosby's attorney,
Steve Andrews, also from Tallahassee, said, "If the
government thinks he (Crosby) is not done cooperating
yet, then he will continue to cooperate. The government
will decide when this is over."
Also as part of Crosby and Clark's plea deal, each was
ordered to repay the full amount of the kickbacks that they
had received from a Gainesville businessman and friend
who had been given a subcontract to set up ana sell
canteen items to prisoners and their family visitors. That
subcontractor was banned from the prisons after it was
discovered that he was giving bribes to Crosby and Clark
part of the deal to net $ I.5 million a year from the
visiting park canteen contract.'
' '
Shortly after Crosby and Clark pleaded guilty to taking
the bribes, state officials infonned them that state laws
allows their retirement benefits to be forfeited for
committing specific crimes while working for the state.
.
Crosby was sent a letter by the Dept. of Management
Services telling him he owes the state $236,602.51. That
amount includes retirement benefits paid 'to Crosby
through June in addition to a $215,236 lump sum payment
made to Crosby in mid-March, one month after he was
forced to resign by Governor JebBush.
,
. The amount owed by Clark was less clear. Clark had'
transferred his retirement pay to the state's investment
system and the amount is not public record.
.
Clark's attorney, Steve' Dobson, did say, "We have
every reason to expect they will forfeit their retirement
money."
"
In addition to his 'legal woes, Crosby also suffered a
personaJ loss in July. Court records from Marion County
show that a divorce filed by Crosby's wife became final

as

~~

.

When he pleaded guilty, Crosby told the court that he
was being treated for alcohol abuse, apparently hoping
that will influence a lighter sentence, and that he had
moved in with his elderly parents in rural Bradford
County.

[Sources: Gainesville Sun,
.records,] •

Orlando Sentinel, court

Operational Audit
Blames Centralization

S

hortly. after he took over the Florida Department of
Corrections in Feb. '06, Secretary James McDonough
contracted with the management consulting firm MGT of
America, Inc., to conduct an operational audit of the
department to identify problem areas that need correction.
MGT's report found that a former FDOC secretary's
(Michael'Moore) dismantling of financial and personnel
systems at individual prisons and moving those duties to
four regional offices around the state created conditions
that contributed to recent corruption cases within the
department. The 200 page report by MGT contained 60,
pages of recommendations addressing myriad issues, most
of which could be traced back to an earlier push to
centralize central office oversight of prisons. Three critical
areas of concern cited are that: (1) prisons with annual
budgets of $100 million had no fiscal staff on site to
monitor. transactions, (2) prisons were unable to provide
basic human resource management and assistance to staff
because there were no personnel staff on site, and (3) a
lack of local'purchasing staff meant repeated instances of
shortages of vital supplies, equipment and materials. The
MGT report was welcomed by Secretary McDonough.
The report took about two months to complete and cost
$751,039. Money well spent, according to McDonough.
who said he will use the report to help him prepare the
,department's 2006-07 budget request for the Legislature.•

- NOTICEThc mailing addl'css for FPLAO, Inc" and;
Florida Priso/l Legal Pt.!I'spe('/il'es (FPI-I') has
changed. The new addrcss is as follows. Ph.. ase
scnd all mail 1'01' eithel' FPLAO, Inc., 01: I;:P~P tu
this new addl'css:
P.O. Box 1511
Chl'istmas FL 32709-1511

Florida Prison Legal Penpe~lives

First of all I will direct my remarks to President Bush, even in today'snewspaper there are still pro' and cons about the
treatment of foreign prisoners in Guantanamo Bay it says a new ~y manual bans torture and degrading treatment of '
prisoners. Sir those ate our enemies and so many people get so riled up over harsh treatment to them when our own loved
ones in our prisons here in the great free? United States of America are tortUred,beaten shackled and kicked every day of
the year. You know. what was so· hilarious sir; the 'leader of that band of "heinous rogue" was a former guard of the
Department ofCorrections from Philadelphia. Therefore he had already been,schooled on inhumane torture.
Second Gov. Bush you should know how hard it is for the families to see their loved ones locked up, although I'm sure
your daughter never got the harsh treatment that our loved ones do. No one would dare to beat and torture her. But still I
know how hard it was, especially to have your lives spread all, over the front pages ofevery newspaper. I am so sorry. But
because ofthis I knowyou know how far I will go to tTy to help and protect my only son.
,
Third Secretary McDonough, I thank God for you and how you have ulken over the Florida D.O.C. and seem to have
gotten a lot of things turned around for the better. I know that yo'u cannot police every prison personally but thei:eshould
be strict rules for the employee's as well as the inmates. Some of the guards perceive the "get.-tough" philosophy as a
green light to act out their basic hostilities on prisoners. The inmates get ~hackled cursed, beaten and kicked for
sometimes nothing more than asking a question. I think it would benefit the FDOC employees.to attend the Rethinking
Personal Choice and anger management training; In fact this training should be mandatory for all persons before hiring
anyone to work for the FDOC. This training program was started at Flori~a State Prison for inmate~ and my song,r,aduated '
in the first class, ana it has served him well. He gets along well with othersand'knows well how to say "yes sir and no sir"
even when he is being cussed out by those in charge. But that did nofkeep him from getting a DR two months after: being
transferred to Taylor CI. Taylor CI is well know for the, brutality and 'for the cursing and harassment .and it seems like the
guard especially like using the F--- word and the N word. Inmates are routinely cursed,abused and given,DR's and locked
up for non-existent reasons. Recently this happened to an Inmate whose, family had driven more than six hundred miles
just to be turned away, all because of Ii false DR. Ms. Lee
Dear FPLP: I need to again express my appreciation to'the esteemed Mark Osterback and his en~eavors OR our behalf
and let the enclosed reflect that successful litigation is not in vain.
Recently while enjoying a nine day sabbatical in administrative confinem~nt, I was'armed with my trusty FPLP and
used Mark's above article and Chap.26 to file aOC 303: "Grievance ofa Serious Health and Medical Nature because of
the KNOWN and OBVIOUS massive infestation of rodents..... As, the enclosed .dmin responsei~dicates, the grievance
was well received and favorably acted upon.
,
Please note that I have missed your'~Razorwire"mail section and was GLAD to see "Mail Reader's Respond" which I
enjoy and strongly believe is a verY important part ,ofyour essential p~blication. SJ and her necklace letter about Bro~ard
CI was very disturbing and demonstrates that we still have a very, difficult.battle with the rampant ~pa~y in,the FDOC.
And God help us with Charlie Christ being elected governor as Mr. Posey addressed, in hisperccJ)tive poignan~ editorial.
WGH MCI
' .
" ..'
..
Dear FPLP: Iwant to bring to your attention that there are a lot of assaults oliinmates,by staff here at Taylor CI.S~ff '
beat inmates all the time and the inmates are afraid to rePQrt it for fear of retaliation and more abuse. Also if inmates~le
gJ:ievances they get bogtJs DR's written on them: I've b~1l told by staff that the, KKK runs tftis :institution D9t 009: This·
is a good .old boy prison ,mostly family he~. One,inmate:was toJd in the visiting p!U'k to keep those little monkeys off his
grass talking about his kids. I pray that someone will check.into this before. an in~ate is 'killed. AJ TCI,
Dear FPLP: I am a Jewish' inmate currently on ,CM l' at 'Chari~tte CI• The reasot. fortltis I~tter i's under §761 Fla. St
(2004) DOC must employ the least intrusive means to achieve its objectives with respect to re\iglon~ this meansth~t
because my religion requires my food. to be kosher DOC!s JDA programs place a substantial burden on the' exercise of my
f

Florida-PrisOn Legal Perspectives
- Parole ProjectDonations ~eeded

TYPING
SERVICE

The FPLAO Parole Project continues to work
to change the existing parole system and Parole
Commission in Florida so that it actually works
the way it should to give all parole-eligible
prisoners a fair, unbiased, and, ~bjective
opportunity to make parole. The last two Issues of
FPLP explained what is being done by, the Project
to force change to happen. The Project, however,
is limited in' what it can do by the amount of
support it receives.' Donations have been
requested from parole-eligible prisoners ~o help
fund the Project~ As previously explained, If every
parole-eligible prisoner, approximately 5,200 Clf
them left, will donate just $5 a year to the Parole
Project, there will bea substantial war, chest for
the Project to work from and to keep continuous
pressure , on .' U)e Parole Commissio~ and
legislators to abolish the current system In favor
of orie that works.
So far. a few hundred dollars in donations
have been .re~ived. which certainly helps and is
",'uch appreciated, but more is needed. If' you
can't donate $5 at one time, donate what you can
as you can. If you can donate more than $5, to
help make up for those who have nothing, then
please do so. Every penny donated to the Parole
,Project will go towards working to make parole
more available to parole-eligible prisoners. Your
donations are needed today. Send them ,to:

. Computer - Typewriter
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Including but not limited to:

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Black I Color Printing & Copying

llpSlei81

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for prlaonSlrz

FOR A FREE PRICE LIST AND
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Attn: Parole Project
P.O. 'Box 1511
Christmas, FL 32709-1511

FOR CLEMENCY ASSISTANCE INFO•.
WRITE TO:
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27

Florida Prison Legal Perspectives

religion and the same goes for shaving: There are some Jews who shave and some who don't forlbecause of our religious
beliefs; I'm one ofthe latter. I've exhausted the administrative process and have now sought Mandamus relief #06-2264;
2265; 2266; I'm aware that it'll take some time but because the language of the statute is clear and without ambiguity I
know that I'll be successful. All Jewish (male/female) inmates need to be aware of these pending actions, so as to take full
advantage ofthe Mandamus orders and finally once and for all force DOC to provide us with kosher foods and any and all
other materials which our religion necessitate. Together we can prevail, but nothing will ever get done as long as we wait
for someone else to fight our cause!!! JJ CCI
Dear FPLP: I had my first parole hearing in February in Tallahassee, I was given a date of 2061. I have never been in
confinement; I worked professional jobs, for over 20 years and have completed many programs. What does the parole
commission want with my life, after 25 years my health is growing poorer, high blood pressure, eet... I take 5 different
medications and I know I won't see 20061 alive. The parole commission is a farce, if they parole us they will not have a
job will they. I know many lifers who have perfect or near perfect records with 2020 to 2096 dates, their ages are from SO
to SO, so how could they ever make those dates"We surely need a system that works!! I RE GCI
.
Dear FPLP: I was in receipt of recent letter about the improperly collected copying service charges, fromFI. Justice
Inst. Inc. In the letter it was stated: "If your claim is wholly or partially denied, you have thirty (30) days from the date of
notification to 'fiIe an action in circuit court or to appeal the denial to the district court of appeals pursuant to Chapter 86
and Section 120.6S, Fla. Stat. respectively.'~ Enclosed was a copy of the form which must be used to seek a refund. The
form can be filed either with Chief Financial Officer ofthe State of Florida, who is Tom Gallagher, at Florida Department
of Financial Services, 200 East Gaines St. Tallahassee FI. 32399-0300, or to James R.· McDonough, the Secretary of the
FDOC. Enclosed was Form DFS-AA-4 Rev 12102. The form title is: STATE OF FLORIDA FINANCIAL SERVICES
APPLICATION FOR REFUND. Form DFS-AA-4 should be obtained from Department of Financial Services by written
reque~t address herein. JAF HCI
Dear Comrades; I received. my copy of Perspectives much delayed today, not due to the malice of the mail room, but
due to the onerous rules in close management. I came to where I am straight from the reception center. And having done S
calendar years from 'S2 to '90, coming back, especially under these circumstances has been nothing short of shock
trauma. Most ofthe shock is the completely apathetic attitude ofthe inmate population regarding our status, privileges and
treatment. What happened in the IS years I was free? While Perspectives is like a breath of fresh air for those of us who
care about prison reform, judicial review and assistance in our cases, there's at .least 73,000, or 85% of the total
population, ,,::ho are either happy to push Fred Flintstone mowers, eat crappy Aramark food, or too interested in cartoons
to care. I agree with Bob when he said that most inmates only care a~out themselves. Not one of these sad sacks in my
wing care ahout filing a grievance. But there have been a ~ouple who came and went in the past 14 months. They are
fighters like Bob Posey, Mark Osterback and others in the past (Costello, Jeff Raske) who fight the oppression. You know
who you are: D.A., D.H. DMc and P.P. These guys impressed me with their attitudes as well as their ability to get into the
F.A.C.'s case law and statutes and actuaIlY."put pen to paper" and fight for their rights and freedom. I just wantt;d to thank
Bob & Teresa and all the others on the FPLP staff for their dedication and hard work, and I encourage all the other
fighters out.there to keep at 'Em, and never give up. From the Gulag..... Comrade T.C.

• I

Letters sent to FPLP may be used in this section. All letters are subject to editing for length and content. Only initials will be used ~
identify senders and their location. Letters are welcome from all FPLP members. Address letters to: Editor, FPLP, P.O. Box 1511,
Christmas, FL 32709.
.

2.8

Florida Prison Legal Perspectives
IN THE COUNTY COURT OF THE
SECOND JUDICIAL CIRCUIT, IN AND
FOR LEON COUNTY, FLORIDA

CASE NO. 2006 SC 0842

EUJAH JACKSON, JR.,
Plaintiff.
vs
JAMES V. CROSBY,
FLORIDA DEPARTMENT OF CORRECTIONS,
JAMES R. McDONOUTH,
Defendants.

--'--_._---------:------,/
FINAL JUDGMENT

THIS CAUSE came before the Court for Trial and both parties having presented
testimony and argument, and the Court being otherwise fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that the Plaintiff recovers from the Defendants the sum of
$ 750.00' Damages and $ 280.00 Court costs, plus interest of 9% from this c!ate, for all of which

let execution issue.
Plaintiff Pro Se Elijah Jackson, Jr., an incarcerated prisoner, commenced this action in the
wake of Smith vs Department ofCorrections, 920 So 2d 638, (Fla 1st DCA 2005) Rev. Den. 923
So 2d 1162 (2006). The Complaint alleges that the Plaintiff is an indigent.prisoner whose inmate
account was debited prior to January, 2006, to pay for the legal photocopies the Departmentof
Corrections provided to him at his request, pursuant to Rule 33-501.302, Florida Administrative
Code.

Florida Prison Legal Perspectives

~.

The Smith decision invalidates this foregoing Rule and on that ground, the Complainant

asserts that the Plaintiff is entitled to a refund for deductions that were made from his prisoner
account by the Defendant prior to the Smith decision. The First District Court ofAppeal found
that the cost and·enforcement provisions of Rule 33-501.302, Florida Administrative Code, were
invalid for want of specific statutory authority. The District Court in the Snllih case expressed no
opinion as to whether the appellant there was entitled to the reliefrequested within the petition.
The Plaintiff in the Smith case, in fact, did not raise the issue ofentitlement to damages.
This Court has concluded that since the Florida Department of Corrections was not
I

entitled to charge the prisoner Plaintiff for the cost of copies and enforce liens for the copying
costs because the Department of Corrections did not have a specific statutory authority any such,
amounts actually collected from the Plaintiff by the Florida Department of Corrections should be
returned to the prisoner Plaintiff.
The Court has concluded that the facts at Trial were that the Department of Corrections,
after January 27,2006, did not collect any further copy costs from the Plaintiff. The Court also
concluded that the liens that were assessed prior to January 27, 2006, that had not been paid by
the Plaintiff prisoner had been discharged and not collected by the Florida Department of

.

Corrections.
The Florida Department of Corrections further did agree that some copying costs
.
.

prior to January 27, 2006, had been collected by the Florida Department ofCorrections from the
Plaintiff prisoner
and not
""'.
. repaid. The Defendant Florida Department of Corrections. did not offer
any further defense than to argue that the Smith case did not address the issue ofdamages.
For the foregoing reasons, this Court has entered a judgment in favor of the Plaintiff in
the amount ofcopying costs that the Defendant Florida Department of C~rrec~ons had deducted
. from the prisoner's account and not repaid.
DONE AND ORDERED in Tallahassee, Leon County, Florida this October 4, 2006.

..

,

~.~
DON MODESITT

COUNTY JUDGE

;

. . . . . . .F.

1

,.;_"

Florida Prison Legal Perspectives ~

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I

: 1

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. ' .

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t

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@Mail to: FPLP. P.O. Box 1511
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VOLUME 12 ISSUE 5/6

SEPT/DEC 2006

--_._--------_.
Florida Prison Legal
Perspectives

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

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