FLORIDA PRISON LEGAL

ers ectives
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ISSNfI 1091-8094

VOLUME 9. ISSUE 5

Lockup Hotel:'
,
Florida's.Growing Prison Complex
by Oscar ijanson
All the hype about prison overcrowding and early
release for Florida's prisoners has been smothered by a
recently passed stale budget that e8nnarks funding for over
4,000 new prison beds. In a time when the state's
education and health care woes continue to plague the
state, the move to incarcerate Florida citizens intensifies.
As part of the 1.7 million dollar DOC budget. the
Legislature appropriated funds to complete a 1,200-bed
close management annex adjacent to Columbia
Correctional Institution, build a work camp at Wakulla
Correctional Institution and construct a brand new I,SOObed prison in Franklin County. '
And there's more.
During the special legislative session called to
untangle Florida's medical malpractice quagmire, Gov.
Bush requested an additional $66 million for more prison
beds and for the hiring of additional prison guards. Bush
cited' the need' to counter the rising number of prison
admissions that has- caught administration officials offguard. Bush vowed to acquire the funding "one way' or
another" in order to avoid releasing prisoners early.
.
Ironically, at the time DOC's budget was
approved, no one in the Bush administration said anything
about a looming prison overcrowding crisis. In the

SEP/OCT 2003

months leading up to the special session, lawmakers
constantly haggled over .the details of a medical
malpractice "reform" package that may neither lower
malpractice insurance. nor protect victims of bad medicine.
On the other hand, in just two short days, the
governor requests and the Legislature delivers, an
additional $66 million to furthet expand the state's prison
complex.
Bush clicks his heels and poor, more prisons. Just
like that.
Here's how the $66 million will be spent:
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$30.2 million to hire more than 500 prison

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guards.

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$1.3 million to renovate and reopen
HendryC.I.
$4.9 million to build 14 new dorms across
the state.
$27.5 million to begin construction of a
1AOO-bed prison annex at Santa Rosa
Correctional Institution.

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The bill also included a unique provision that
allows the DOC to bypass normal state bidding laws in
choosing the contractor to build the Santa Rosa Annex and
perform renovations at Hendry C.I.
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Obviously lawmakers believe that 2,000 or so new
prison beds must' be built quickly - there's simply no time
to follow proper procedures and make sure that taxpayers'

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ON
THE
INSIDE

Judicial Discretion Under Attack
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Ex-Felons' Civil.Rights••••••••••••••••••••••••••••••.••••••••••••.••••••.••..•5
Post Conviction Comer
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Former FPC Chairman Arrested
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FPC Commission Replacement Sparks <;:riticism
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Flashback: Florida 'Prisons Yesteryear
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1'.0. BOX 6flO-:187
OInJJ.UO'l'A, Fl. :12766

Publishing Division of:
FLORIDA PRISONERS' LEGAL AID
ORGANIZATION. INC.
A 501 (c) (3) Non-profil Organizalion
Fax (407) 568-<1200
EmlIil: folpj'ci'aoJ C"Q!
Websile: \\WW'tj!laQOrc
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FPLAO DIRECTORS
Teresa Bums Posey
Bob Posey, CLA
David W. Bauer, Esq.
Loren D. Rhoton. Esq.
Oscar A. Hanson, CLA
Linda E. Han~on
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FPLPSTAFF
Publisher
Editor
Associate Editor
Research
Administrative Assistant

Teresa Bums Posey
Bob.Posey
Oscar A. Hanson
Sherri Johnson

ADVISORY. BOARD
Wilfiam Van Poyck
Philip Bagley
Michael Lambrix
Susan Manning
Gene Salser
Mark SherwOod
Elizabeth Grcen
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James Quigley
John Hudson
•Terry Vaughn
Enrique Diaz
David Reutter
Linda Gottieb
Anthony Stuart
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dollars are being well spent'and not given to Bush cronies.
But don't worry, Bush administration officials crossed
their hearts and absolutely' promised there would be no
back door deals. Honestly.
.
Not everyone is convinced. Senator Rod Smith
said, '~lt'sdangerous to let a state agency say 'we screwed
up and now we have acris,is' then 'allow them to
circumvent safeguards for bidding, These numbers didn't
just pop up yesterday."" . Cer:tainly there were some early
, Warning signs.
.
The question that begs an answer is: How did this
crisis sneak up on the Bush administration? Apparently
DOC Secretary James Crosby made the "astounding
revelation" after months of increased admissions, 3,000, in
the month of June, the, most in any month since 1992.
Crosby advised Gov, Bush that he needed more money or .
he 'would begin releasing dangerous drug offenders and
other criminals.
.
So what led to this crisis?' We need not look
beyond Gov. Bush and Florida lawmakers. For the past
few years they have passed tough new sentencing laws
that will undoubtedly lead to prison overcrowding. And
never mind that admissions into state prison have
surpassed expectations for seven of the past ten ·months.
Yet, it wasn't until that dramatic jump in admissions in
June that alanns" sounded that the DOC may have, an .
emergiDg no-vacancy problem.
I must be candid and admit that I find the timing
of this new-found crisis to be very disingenuous. After aU" ~
it would. have been very bad timing had the DOC
discovered it's overcrowding crisis last year during an
election year when lawmakers were busy cutting taxes as'
party favors..
,
J can't help but wonder why it is a crisis that
demands emergency funding to build more prisons. Isn't
it just as much an emergency or crisis when funding
shortages are forcing schools to fare educational staff and
when our children are failing the FCAT?
Representative Ed Jennings made a valid poin~
when he said it was wrong to use the state's Reserve Fund
to add more prison beds at a time when community
colleges, universities and public schools did not get
enough money in this year's state budget. And let's not
forget the crunch on social services, child welfare and
juvenile,rehabilitation programs, and the raiding of other
state trust funds like. the Inmate Welfare Fund. Perhaps
this was a ruse to pay for their years-long orgy of tax
cutting.
This latekt act of legislation sends the obvious
message that it is permissible to cram thousands of
additional students into state universities and community
colleges, but when it crimes to warehousing prisoners. it's
a cash-and-Carry proposition. '
.
Let's analyze this under the reductio ad absurdum
argument. In the coming years the state will certainly
have to continue to play catch up, building more and more

FLORIDA PRISON LEGAL
PERSPECTIVES

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FLORIDA PRISON LEGAL PERSPECTIVES (FPLP) Is published up 10 si.times a
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This ~blicalion is 110I meant to be a substitute' for legal or other professional advice.
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FLORIDA PRISON LEGAL

prison beds for more and more prisoners, many of which
will be drug offenders. Last year drug offense sentencing
rose 13.4 percent under Florida's Dranconian drug laws.
Looking ahead, Florida's spendthrift past will
surface to haunt future lawmakers when thousands of
prisonerS incarcerated under the life without parole laws
. will begin to enter .into their golden years. - past the age
when they are likely to commit further crimes. Inevitably,
the DOC will fmd itself operating the largest chain of
retirement homes in Florida, and the cost of housing and
caring for an ageing inmate population will explode
exponentially.
Jason Ziedenberg of the Justice Policy Institute, a
non-profit· group that advocates alternatives to prison,
states that funneling more people to prisons is wrong,
especially at a time when legislators are struggling to fund
education, health care, and stave offspending cuts.
Other states. faced with budget shortfalls have
exercised sound judgment for their taxpayers and have
made tactical decisions to release non-violent offender:s in
. order to downsize their· out-of-control prison budgets.
States like Kentucky, California and Texas have
implemented early release mechanisms to deal with
swelling prison populations. Many states. like Louisiana,
Connecticut· and Utah have taken legislative action to
repeal tough. sentencing laws such as mandatory
minimums and 85 percent statutes. States have found the
corrections animal simply too gluttonous to.maintain.
Yet Florida remains committed to building a
prison state instead of providing better education and
health care. Florida's determination to erect more prisons
comes as the U.S. Justice Department issued a report that
shows the nation's prison population increased 2.6 percent
as the crime rate continued to decline. The report reveals
the prison population increase pushed the inmate total
over 2 million for the first time in U.S. history, costing the
federal government and states an estimated $40 billion a
year.
Among other findings by the Bureau or Justice
Statistics: The inmate population has grown an average of
3.6 percent annually since 1995. That means one in 143
U.S. residents were behind bars on December 31, 2002.
LoCally, Florida had 75,210 prisoners under the
custody of correctional authorities. at the end of 2002,
compared to 72,404 at the end of 2001, a 3.9 percent
increase. New estimates indicate Florida will have 81,266
prisoners by the summer of 2004.
But don't fret. Rest assured, like Motel 6, Lock
Up Hotel will leave the light on. •

Judicial Discretion
Under ·.Attack
Earlier this year, new federal legislation was
added to a popular child protection bill at the last minute

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Perspecttves - - - - - - - - - - - - - -

that is going to have an unprecedented effect on how
judges are' allowed to sentence defendants.
The
legislation, known as the Feeney Amendment, for its
author, Rep. Thomas Feeney (R-FIa), restricts the ability
of federal judges to depart from sentencing guidelines in
certain cases. Especially troubling is" a provision in the
amendment that mandates that the' U.S. Sentencing
Commission review downward departures by judges and,
within six month, amend federal guidelines to "ensure that
the incidence of' downward departures [is] substantially
reduced."
The amendment was quietly and without
hearings or much debate "Iogrolled" onto the Child
Abduction Prevention Act, also known as the Amber Alert
bill, that was rushed into law earlier this year. President
George W. Bush, among much fanfare following a couple
of highly__"publicized incidents purportedly showing ~e
efficiency of the Amber Alert system, signed the entire
package, with the Feeney Amendment rider attached, into
law on April 30..
.
Fortunately, although an overwhelming majority
of the House and Senate voted for the packaged biJ~ there
was some quickly organized opposition to the wideencompassing provisions of the Feeney Amendment that
resulted in limits b~ing placed on its provisions. As
originally introduced, the Feeney Amendment would have
essentially gutted judges' discretion to depart from
mandatory guideline sentences, even where circumstances
warrant a downward departure. Under the original
amendment all grounds for judicial departure would have
been eliminated except for those expressly permitted by
the U.S. Sentencing Commission, which, as noted, is
mandated under another provision to ensure substantial
reductions in downward departures by changing the
guidelines.
A conference committee in the Senate
modified the amendment to strip away some of the more
egregious provisions but added some new provisions to
limit judicial discretion in other ways.
Feeney's amendment, not coincidently, fit well
into the Bush administration's obvious goal of getting
legislation enacted to more tightly control and cabin the
federal judiciary. Increasingly, as the full impact, and
what has become to be viewed as assembly-line justice, of
mandatory. guideline sentences is being felt, more judges
are stepping forward to criticize discretionless mandatory
sentences. Over two-thirds of federal judges have spoken
out in recent years against the unfairness of the sentencing
system that essentially dehumanizes the ,process. This is
seen by conservatives in the Bush administration and in
political offices, who are banking on prisons and
inc8rceration continuing to increase as an economic factor
in the U.S., as a rebellion by the judiciary.
Bush's highly controversial appointee as attorney
genera~ John Ashcroft, who has been highly critical of
judicial discretion, and who seeks to even further increase
the power of federal prosecutors by decreasing the power
ofjudges, supported the Feeney Amendment. As a further

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indication of the intent to bring judges to heel, in a recent
memo Ashcroft, head of the U.S. Department of Justice, ;
directed U.S. prosecutors to begin "monitoring" federal
judges who impose lighter sentences than suggested by the
guidelines. This is viewed as a threat by most judges.
In August, John .Martin, a federal district court
judge in New York, quit his lifetime job as a judge after
13 years on the bench. Martin, who was appointed to the
federal bench by former President George H.W. Bush,
said he was quitting because of the Feeney Amendment.
He considers the changes to federal sentencing laws so
unjust he no longer Wanted to work inside the criminal
justice system. Though extreme, Martin's reaction is part
of a rare rebellion among federal judges to the new
strictures on therr discretion. And its not just disgruntled .
liberal judges who are speaking out.
In April, U.S. Supreme Court Justice Anthony
Kennedy, certainly one of the high courts' conservative
justices, spoke out against mandatory minimum sentences
and limiting judicial discretion any further when testifYing ,
before a Congressional hearing about his courts' budget.
When asked what he thou8ht about the recent statistic
showing that more than 2 million Americans are now
incarcerated, Kennedy said, 'Two million people in prison
is just unacceptable."
Continuing, he observed,
"Mandatory minimums are harsh and in many cases
unjust." Justice Clarence Thomas, another conservative
also at the hearing, was reported to be nodding in apparent
agreement to Kennedy's remarks.
Amazingly, William Rehnquist, chief justice of
the Supreme Court, has said be believes the changes go to
far, stating they are "a good example of the law of
unintended consequences."
"
.
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Again, in August, Justice Kennedy in a speech
before the American Bar Association, urged lawyers to
lobby Congress to change the onerous federal sentencing
guidelines that have led to "unjust punishments;"
Kennedy told the ABA conference attendees, "Our
resources are misspent, our punishments too severe, our
sentences too long."
Before he rl<Signed, Judge John Martin, a former
federal prosecutor, in a published opinion article
commented on the continuing threat posed by politicians
. vying with each other to appear tougher-than-you on
crime, saying "Every sentence involves human life, and its
just absurd what we're doing with people."
As long as the neoconservatives remain in power
in Washington, we can expect to see a struggle between
them and the judiciary whose job it is to protect the
constitution. Whatever the outcome, just as sentencing.
guidelines originated back in the early 80's with the'
federal government and then spread to the states, the
impact will determine the future direction of criminal
justice policies at the localleveI.

Perspectives

[Sources:
FAMMGRAM, Summer 2003; Christian
Science Monitor, 7/8/03, 7/30/03; USA Today 8/11/03,
3A]

[Editor: More info about state and federal minimum
mandatory 'sentencing,. and what you can do to get
involved in the struggle to change them, can be found at
Fiunilies .Against Mandatory' Minimums' (FAMM)
website: www.farnm.org. or by writing them at: FAMM,
1612 K Street NW, Ste. 700, Washington DC 20006,
(202} 822-6700]-

FDOC Shutlles Public Records In
Potential Cover-Up Scandal
Under Florida law it is the policy of the state that

aU state, county, and municipal records shall be open for

personal inspection by any person. However, recently, the
DOC has taken evasive action to make inspection of such
recOrds problematic.
. '
This past June, the Indian River Press Journal
reported the allegations of four male juveniles housed at
Indian River Correctional Institution that they were forced
to have sex with teachers over a two-year period. A
fellow educator at the institution was allegedly fued
because he tried to report the incidents. And, in a twist of
irony, the educator's diary lands in the lap of the husband
of one of the accused. The husband happens to be a
retired Vero Beach police captain.
.
As the' Press Journal attempted to learn the truth
about this sensational story, the DOC removed all the
records out of Indian River County. The personnel files of
the 'two accused teachers were shipped to Fort Lauderdale.
The personnel file for .the whistleblower was shipped to
Orlando. And the files relating to the case itself are in,
you guessed it, Tallahassee.
.
The DOC, in accordance with Florida's openrecords law, says the voluminous files are available - just
not in Indian River County. To view the materia~ the
newspaper must either send reporters to the three other
cities, or send a check for over $300 to get copies mailed.
Redacted, of course. The costs logistics and delays in this
particular case are unreasonable and fail to honor the spirit
of the open-records law, according..to the newspapers.
.
DOC officials maintain that they are following
standard procedure. They say their use of four satellite
service centers and a central repository in the capital is the
most ~fficient deployment of resoI;Jrces. Whether this
policy is the .most efficient is questio~ble, b~t
notwithstanding the DOC policy, the fact remams that thIS
case involveS a facility in Indian River County - not Fort
Lauderdale or Orlando or Tallahassee. Why were the
documents relating to this case removed from the county'
where they were generated in the frrst place?

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When. questioned. about the shuffling of the
documents in this case; DOC officials say they· cannot
return the case files to the scene of the alleged crimes
because of the need to maintain the. "chain of evidence."
While this could be a valid claim, it begs the question:
Was the chain of evidence broken when investigative
reports left thiscounty in the first place?- Presumably, that
chain runs both ways.
This problem is not. new. Complaints have
echoed actoss the state for some time as a host of state
agencies use regional centers to keep vital public
information at arm's length from taxpayers.
Barbara Petersen, president of the First .
Amendment Foundation, says this is wrong. She asserts
that the right to view government records is effectively
compromised when the press, or John Q. Public.
encounters higher hurdles due to location. "Access
shouldn't be any less of a right in Vero Beach than in
Tal~see:'; says'
Stan Mayfield, a Florida Legislator from Vero
Beach, acknowledges that bureaucracies sometimes "hide
behind the costs" when asked to· tum over sensitive
documents.
These types of problems aren't what
taxpayers bargained for when they voted to put openrecords guarantees into the state constitution.
It· is axiomatic that the essential job description 'of
public agencies is to serve the ·taxpaying public.
Requiring the media or the public to travel a hUJidred
miles or more to a' "service center" 9r sending them a bill
for photocopied documents. sight unseen, ,isn't fulfilling
the spirit of the open-records law.•

Peterson. .' . "

.FDOC Targets First
Amendment
During August 2003 two new rules adopted by the
Florida Department of Corrections (FDOC), designed to
further restrict Florida prisoners' First Amendment rights,
became effective. Where few prisoners in Florida are
stepping forward to protect their rights anymore; the
FDOC is engaged in, steadily rolling back the gains that
prisoners fought for over the past 30 years.
On August Sib. Routine Mail Rule 33-210.101(8),
F.A.C., was amended and became effective to prohibit
prisoners from using correspondence to commercially
solicit or advertise for money: goods or services. Included
in the prohibition is adveJ1ising for pen-pals. According
to the new rule, Florida prisoners are now prohibited from
receiving mail from people or businesses that. sell
advertisirig space and any prisoner who places ads or has
someone on the outside place an ad for them shall be
subject to disciplinary action.
In a recent news release the FDOC announced that
it will have employees regularly search publications and
websites that carry ads for prisoners seeking pen-pals and

Perspectives

disciplinary. action will be taken against any Florida
prisoners who are found to have ads posted.
A few days later, on August 10, a new section of
rules at 33-602.207, F.A.C., became effective that prohibit
Florida prisoners from establishing or engaging in a
business or professIon while incarcerated. The new rules
in that section defme a 'business or profession as any
revenue or profit making activity or any activity with the
potential to generate revenue or profit. Included in the
defmition is writing for publication when the prisoner may
obtain revenue or profit from the writing. Such writing
may be allowed in some circumstances, if approved by the
warden.
.
The new rules in that section also require all new
prisoners who are engaged in a business or profession to
tum .same over to someone on the outside to operate
within 90, days of being sentenced to prison. Prisoners
now, under the new rul~, are prohibited from sending or
receiving mail concerning the operation· of their business
or profession and shall be subject to disciplinary action if
they .attempt to use the mail, telephone, or. any other
means of communication to direct t~e operation of a
business or profession.
Prisoners can review the above new rules at their
.institutional law libraries. or they can be found on-line at
www.dc.state.f1.us/secretarvnegaVch33 •

Some Ex-Felons' Civil Rights
To Be Restored,
Law Still Archaic
by Anthony Stuart

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. ' Almost· 125,000 felons did not receive proper
advice and assistance from the Florida Departritent of
Corrections (FDOC) in the rights restoration proces~ upon
their release from the state's prisons between the years of
1992 and 2001.
On July 24, 2003, the FDOC
acknowledged this during a suit that was brought against
them by civil rights groups. In an attempt for a settlement
in the suit action. FDOC agreed to help those felons in
restoring their civil rights.
Before July 2003 ended, Circuit Court Judge P.
Kevin Davey of TalJahassee signed the final judgment in
the action. . The ruling handed several thousand former
prisoners a significant victory. Even though the order is
retroactive, it does not affect those leaving prison after
200 I. As a result, the American Civil Liberties Union
(ACLU) is appealing the order saying that it should apply
to those released after 200 I as well.
According to Randy' Berg, lead counsel for the
Florida Justice Institute on behalf of the ex-prisoners,
about 30',000 ex-felons will qualitY for the restoration
without a hearing. The others, who generalJy have been
arrested for more offenses' or. have committed more
serious crimes, will have to seek their restoration ofrights

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by a clemency hearing brought before the governor and
. Felon disenfranchisement opponents maintain that
the independently elected Florida Cabinet, who will
the disenfranchisement laws· are archaic, inhumane, and a
waste of human capital. The laws impose second-class
choose which felons gets a rights restoration hearing.
However, as Berg stated, "Ifs a drop in the bucket." For
citizenship on ex-felons struggling to become law-abiding
citiZens and exact a toll long
the debt to societY has
an ex-felon to get his or her civil rights restored, he or she
been paid Civil rights disenfranchisement bars ex-felons
is· required to navigate a process. riddled with conditions
not only from voting, but from serving on a jury and
and loopholes. Thus, about 95 percent of ex-felons who
.getting certain. jobs, such as x-ray technicians, building
request clemency are denied. Certainly, further reform is
contractors, air conditioner installation, and the list goes
needed. "The state needs to get rid of this antiquated, Jim
Crow system," said Berg. .
on.
"Now they [ex-felons with restored rights] have to·
In Florida, lawmakers further stacked the deck
take that extra· step and exercise their right to citizenship
against ex~felons recently by almost eliminating substance
and exercise their right to vote," said Howard Simon,
abuse treatment in tbe. prisons and slashing already
minimal education and job-training programs for
executive director of the ACLU of Florida.
prisoners, making those who'll be released in the future
Sterling Ivey, a spokesman for FDOC, claims that
eVen less employable.
eight employees are working to contact the nearly 125,000
In sum, while the FDOC should advise prisoners
ex-prisoners to advise them how' to seek restoration of '
being ,released about civil rights restoration, as the law
their civil rights and expects notices. to be mailed out to
them within a year.
•
requires, as a practical matter prisoners about.to be rel~d
and ex-prisoners should take more responsibility to inform
The law that is used to strip ex-felons of their civil
themselves about the' restoration process, pursue
rights was enacted in 1868 and was meant to disfranchise
restoration when released and exercise their precious civil
black slaves freed after the Civil War and weaken the exrights when they are restored Even more effective,
slaves' new found political voice. The law continues,
Florida should reinstate civil rights once criminal
more than 130 years later, to punish ex-offenders long
sentences are completed and stop punishing ex-prisoners
after they have served their prison terms by stripping them
for the rest of their lives.
of their civil rights - for life.
In Florida there are an estimated 625,000 ex-felons, of
[Sources: Tampa Tribune, 7125/03; USA Today, 7125/03;
whom 38 percent are black. That's nearly three times the
Miami Herald, 7/30/03]
proportion of blacks in the general population (13
percent). Thus, according to critics of the law, a
[Editor: A federal case challenging Florida's ex-felon
disproportionate share of black residents cannot vote.
. disenfranchisement law is pending before the II Ib Circuit
Nationwide, the numbers are even more staggering:
Court of Appeals in Atlanta. See.FPLP, Vol. 9, Iss. 4, for
a report on that case - bp] •
• Approximately 13.9 million peopl~ - one in
fifty - are disenfranchised due to a felony
conviction.
America '5 Race
• ,Fully 13 percent of the African-America adult
to Incarcerate
male population - 1.4 million men - is unable
to vote.
More than 5.6 million Americans are in prison or
• Given current incarceration rates, three in 10
in prison and are now on the streets, according
'have
been
African-American
men,
will
be
.
to
a
new
U.S.
Justice Department report that was released
disenfranchised at some point in their lives.
August 17, 2003. That means I of every 37 adults living
in .the United States is either in prison or has been, giving
With so many people being sent to prison now
the
U.S. the distinction of having the highest rate of
and the huge number 'of ex-felons being released from
imprisonment
in the world.
prison each year (approximately 625,000), the impact of
This
new report is the rust time the U.S.
felon disenfranchisement on the political process· has
Government
has
released statistics on the extent 'of
grown too large to ignore. Earlier this year U.S. Rep.
America's
race
to
incarcerate
large numbers of the public.
Charles Rangel (D-NY) introduced a bill entitled the ExIf
the
trend
of
the
past
two
decades. continues, as it is .
Offenders Voting Rights Act of 2003 into the U.S. House
expected
to,
it
means
that
an
American black male has
of Representatives., That Act would provide automatic
in
3
chance
of
going
to prison in his lifetime.
about
a
1
restoration of voting rights in federal elections to all
mal~
have
a
1
in
6
chance
of going to prison,
Hispanic
persons convicted of a crime' once they complete their
and
white
males
have
a
1
in
17
chance
of becoming
prison and jail sentence and any· probation or parole
in
the
American
prison-industrial
complex.
caught
up
superyision.
The report noted that by the end of year 2001,
some 1,319,000 adults were in state or federal prisons and

after

6----------,-~--_---

FLORIDA PRISON LEGAL

[Sources: Christian Science Monitor, 8/18/03; USA
Today,8118/03]••
_

Crime Rates Drop,
Incarceration Rate CHmbs
j

.,

.

prosecutor. /Prosecutors are accountable to no one and
they are shielded by the doctrine of absolute immunity for
their actions, even misconduct.
Recently a study entitled Harmless Error was
released by the Center for Public Integrity. an ethics
watchdog, which report~ that more than 2,000 cases over
the past three decades have had convictions overturned or
reduced because ofabuses by prosecutors.
To punctuate this finding, during June twelve men
and women were freed from a· Texas prison after serving
as many as four years in prison on bogus drug-selling
charges. In the town of Tulia, Texas, 38 people were
exonerated after. it was discovered an undercover
investigator lied repeatedly on the witness stand at
criminal trials. A special investigation ordered by a Texas
appeals court determined that the prosecutor knew the cop
was lying yet did nothing about it.
The miscarriage. of JUStice in Tulia was so
outrageous, it might seem like an aberration. But other'
instances of blatant injustice have surfaced with troubling
frequency all across our nation. Newly· compiled reports
such as the one from the Center for Public Integrity show
that thousands of people have been wrongfully
incarcerated over the years because of rogue law
enforcement officers, poor lab· work and overzealous
prosecutors.
Such abuses of the judicial system are allowed to
continue because those who commit them are rarely
punished. As long as this type of behavior is tolerated, the ,
number of criminal prosecutions that undermine an
individual's constitutional right to a fair trial will remain
unacceptably high.
In the past few years, DNA has been used to
exonerate over 100 men and women. many on death row.
The Innocence Project, which uses DNA testing to
overturn dubious convictions, found that 34 of the first 70
defendants it exonerated had been victimized by
prosecutorial misconduct.
Within the past year. crime labs in Florida,
Arizona and Texas have been exposed for issuing false
reports on DNA, blood samples, and other critical
•evidence. As a result, many wrongful convictions in rape
and murder cases have been overturned.
Prosecutors claim defendants receive fair trials in
the vast majority of criminal trials. Yet recent decisions
by Florida appellate courts show prosecutorial misconduct
is on the rise. The dOcumented cases involving mistakes
and .misconduct are too common. Perhaps part of the
reason for the misconduct can be attributed to public
pressure to solve crimes. But .those officials sworn to
uphold the law should never succumb to such pressure
because the result will often force the prosecutor to take
action to convict without ensuring they have convicted the
actual culprits.
Steps must be taken to tame the wily prosecutor.
The immediate ouster of prosecutors who engage in

an estimated 4,299.000 former prisoners are alive in the
U.S. The report did not include figures for the several
hundred thousand people in local jails. (See article in this
issue on combined total in prisons and jails).
According to the new report, the prison population
has quadrupled since 1980, with much of the increase
attributable to,the (so-called) war on drugs and mandatory
miniJ!1um sentences. New drug policies have especially
affected incarceration rates for women, which have
increased at nearly double the rate for men since 1980.
By 2010, the number of Americans in prison or
who have been in prison is expected to be 7.7 million,
equaling 3.4 percent of all adults, according to the report.

• I

Perspectlv~

/

•

According to a new report released by the Justice
Department in July 2003. last year the nations' prison
population increased 2.6 percent even though crime rates
continued their decade long drop and states sought to
balance their budgets with lower cost alternatives to
incarceration. The report presented statistics showing
more than 2 million Americans are in state or federal
prisons or in local or privately operated jails. During the
same period, preliminary FBI numbers show a 0.2 percent
drop in overall crime last year.
. Since 1995, . the number of Americans
incarcerated in prisons and jails has grown an average of
3.6 percent each year, according to the report. On Dec.
31, 2002, one of every 143 people in the U.S. was behind
bars. Out of the 1.3 million of them in state or federal
prisons, 45 percent were black, 34 percent were white, and
21 percent were Hispanic or another ethnicit}i.
Approximately 10 percent of all black males between 25
and 29 yrs. old were in state or federal prisons last year.•

. Blatant Injustice: A Look
at Prosecutorial Misconduct
by Oscar Hanson

.

If I were to ask what bnmch of our government
held the most power. the more likely answer would be the
judiciary, especially in light of the recent landmark
decisions by the Supreme Court. After al~ they singlehandedly determined our current president, who is the
chief officer of the Executive branch of America's
government. But if I were to ask what public officer held
the most power. that answer may not be as readily
apparent.
Without a doubt, the single most powerful official
of both state and federal government is thBt of the

7

misconduct is' a tougher sanction than what most now
face:· th~ next election. And as. a sidebar, overcoming
police union resistance to harsh punishment is necessary
when police abuse their powers.
Those who violate the charge of public trust - not
the people they wrongfully convict - deserve tough
.sentences.

~.-

,J
.:'

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ALL KINDS OF TYPING
Computer· Typewriter

t".,

Including but not Umited to:
Legal Briefs, Articles, Books,
Manuscripts, Text Documents
such as letters; newsletters,
Resume., etc.

:;_!

Other

[Sources: Harmless Error, Center for Public Integrity.
6/26/03; USA Today. 7/14/031
For further information go to publicintegrity.org.

"

,,l.,,

'~:

,."t

"

serv~ces Incl~de but not
limited to.

,

l.\ . Black I White &Color Printing &
(Including
. ~D"~"'.:' Copying
attachments,
etc.) exhibits,
t

~

\,'.:
. -A.,."".

.. j

',1-

''';'

'.

~,\

AND MORE INFORMATION

CONTACT:

"

LET MY FINGERS
DO YOUR TYPING

.~ne: 407-2!~09~1

,4

* Attention *

•

Veterans

i.

X

~~.~;ox~~.~~~A«

Prison Perspectives...
Prison Populations From 1996-2003

11....

.

Sandra Z, Thomas
1911 Marcia Drive
Orlando FL 32807-6357

l

i
i

FOR A "FREE"·PRlCE liST

.

_.

" ,.

Anew study found prosecutors engaged
in misconduct in about 2,000 cases since
1970. some involving innocent people senl tenced to death. Examples of the abuses:
~ Introducing inadmissible or inflamma·
tory evidence.
)
~ Mischaraeterizing evidence or facts.
,
~ Hiding. destroying or tampering with
" evidence. case files or court records.
"
~ Failing to dlsdose evidence that might
J exonerate defendants.
(
~ Threatening. badgering or tampering
with witnesses.
Making inappropriate comments in
J front ofa jury.
x: ~ Making improper dosing arguments.

. '.

Have you ever been in the U.S. Military? Do '
you have a service-related disability? Are you in .
prison? If your answer is yes to those questions
you may very well be eligible to receive.
disability benefits while you are incarcerated, as
well as benefits for your spouse. children or
parents. For more information about benefits for .
imprisoned disabled veterans contact or have
someone contact:
Department of Veteran Affairs
P.o. Box 1437
St. Petersburg,FL 33731

1---------

or call Toll-free'
1-800-827-1000

'I,cao

I'"

I'" .9" .,,,

2000

20;1

1002

uu

or on the web at:
www.vba.va.gov •

8---------

_

- - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - -

0

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I-----:-------------I
'RHOTON &,HAYM.AN, P.A..

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LOREN D. RHOTON
Attomey At Law

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APPEALS
\!; STATE POST CONVICTION
{;) SENTENCE CORRECTIONS
{;) FEDERAL PETITIONS FOR WRIT
OF HABEAS CORPUS
{;) NEW TRIALS
"

,

,

{!.:

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,

INSTITUTIONAL TRANSFERS

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Suite 1111
Tampa Florida 33602
, (813) 226-3138

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9--------------

FLORIDA PRISON LEGAL

PerspectIves

POST CONVICTION CORNER

by Loren Rhoton, Esq.

Due to the applicable periods of limitation (both state and federal) for filing
postconviction motions, many inmates are time barred from filing what may have at one point.
been meritorious postconviction issues. As a re~ult they assume that there is nothing else.that
can be done to reduce their sentences. However, even with very old cases there are sometimes
still'options which may help to reduce a sentence. For example, there are provisions under
Florida Law which provide for a commutation ofa life sentence to a term of y~ars for certain
persons with life.sentences.
.
.
A procedure for commutation of a life sentence was enacted by the Florida Legislature in
1975. Florida Statutes §944.30 provides that any prisoner who is sentenced to lite imprisonment,
who has actually served ten years and has not received any charges of misconduct (DRs) and has
a good institutional record shall be recommended by the Department of Corrections for a
reasonable commutation of his sentence. The recommendation shall be made to the Office of
Executive Clemency. And, should the life sentence be co~uted to a term ofyears, the
inmate's sentence shall be treated as ifit were originally sentenced as a term ofyears.
§944.30 applies to inmates with capital offenses that resulted in life sentences where the
offense occurred prior to July 1, 1987. From July' 1,1987 through July I, 1988, §944.30 only
.
applies to persons with sentences rimging from 40 yearS up to life and said convictions must have
.been for non-capital felonies.
One who qualines for a commutation ofsentence recommendation must pursue said
action through the Office of Executive Clemency. A qualifying inmate is one who has an offense
which was committed within the above addressed time periods and who has had any ten year
period of incarceration under a current sentence with no Disciplinary Reports. A
recommendation for commutation will need to be made by the Department of Corrections. Such
a recommendation should be requested at the institution where the qualifying person is
incarcerated. If the Department ofCorrections fails to,recommend an eligible person for a
commutation of a life sentence to a term ofyear.s, the DOC can be compelled to do so via a
petition for writ ofmandamus.
Once a recommendation for a commutation of sentence has been given by DOC, the
qualifying person must then pursue the commutation through the Office of Executive Clemency.
Pursuant to Rule 8 of the Rules of Executive Clemency, the person requesting a commutation of
sentence must request ~ waiver of the Rules of Executive Clemency. Clemency waiver forms,
clemency applications forms, and the rules and instructions for said forms can be obtained at
www.state.t1.usIfpc/execlem/html or by writing the Office of Executive Clemency at 2601 Blair
Stone Road, Building C, Tallahassee, Florida 32399-~450.
Once the request for a waiver of the rules is filed with the Office of Executive Clemency
the Florida Parole Commission will be asked to review the case and furnish an advisory
, recommendation for consideration of the Executive Clemency Board. Once the Commission has
madeits recommendation, the Clemency Board has 90 days to make a decision as to whether·or
. not to grant a waiver of the rules. Thereafter, the Clemency Board (which is comprised of the

10---------------

- - - - - - - - - - - - - - - FLORIDA PRISON'LEGAL

PerspectIves -------~-------

Governor and cabinet members)will decide whether or not to grant a waiver of the rules. Ifa
waiver is granted then the Clemency Board will actually consider the recommendation for a
commutation of sentence
It is important to present all relevant information in a request for clemency and a request
for a waiver of the rules. If a person with a life sentence is denied a waiver of the Rules of
Executive Clemency, then that person may not apply for another waiver of the Rules of
E~ecutive Clemency for at least five years from the date that the waiver was denied. Therefore,
all relevant information to the applicant should be provided to the Office of Executive Clemency.
Obviously evidence of efforts at self-betterment will be persuasive in a request for a
commutation ofsentence and all applications which relate thereto. The Parole Commission and
Office of Executive Clemency will also be interested in what type of release plan (Le., residence,
employment, etc.) an applicant has. Therefore, it is recommended that any favomble information
that may pertain to a request for a commutation of sentence be presented with said request. .
While a commutation of a life sentence is not easy to obtain, it is still worth the effort if
§944.30 applies to your case. Often persons who qualify for a commutation of sentence have not
been recommended for such a commutation by DOC. Said persons often are not even aware that
they potentially qualify for such a commutation of sentence. I recommend to qualifying inmates
that they determine if they have previously been recommended for a commutation ofa life
sentence. If not, then it would be advisable to request such a recommendation from DOC and to
obtain the necessary applications from the Office of Executive Clemency.
,

,

Loren Rhoton is a member in good standing with the Florida Bar
and a member 0/the Florida Bar Appel/ate Practice Section. Mr.
Rhoton practices almost exclusively in the postconviction/appellate
area a/the law. both at the State and Federal Level. He has assisted
hundredS a/incarceratedpersons with their cases and has numerous
written appel/ate opinions. •

A Memoir
AMut The BocW In this sweeping, pare-bJ~'
~biography, Miami native. W'dliam Van Poyde - car
dUef, buraIar. bank robb,r, ~ a11itt, jailhouse
.wi awUd winning writer - pes readers through

~

a v!vidly iketdted tour, from p~barefoot you to reform schoolJ, prisons and death row, an
',A. '
;
unfcqcaable, fOUMlccade ~
an ~ life seemingly befond reconaIiation. Providing a
I
blUWly authauic look. ~jeCted
che lens of raw experimce, IDCO the
----.-.----------------_••-.__.-_._••__ ~
1wdsc:rabb1e WlderbelJy of America.. c:rimiDaI justice system, Van Payck paints a
Order Ponn
I
ImJad ponrait of the human condition, by tumap'im. hurnorolll, ~t,
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haunting and ~irln,. yet always compdling. Thi. no-bolds-bamd, eye-opening
A Ch«Imwl
iohback, 6 It 9, 324 pages
I
• of human fallibility cuts close to me bone while resonating with life', ume1ess
You c:aa order ftom Tune For Preedom, P.O" Box 819,
. . . of dapaiJ; hope and redemption.
Ocala, FL 3.f.f78 or by caIlillg 352-351·1280.

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....- - - . How To Orden A'C1s«:Uml p." soltbads, 6z 9, 324 pages
You CUt order &om Tame Por Preedom, P.O. Bolt 819, Ocala,
PL 34478 or by ~ 352-351-1280. Cost is $14.so. plus $2.50
shippiDg and hiuldling: ,

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About1'he Authon Sauenced to death for bispan in the 1987
botdIcd attempt to fr~ his best friend from a prison tranJjXJ"
van in downrown West Palm Beach, duri~ which a guard was

=~,::et~Teh:r~':tWiulo~::: ~~~
transfemcl ill 1999, after florida Stite Prison 8uania munImd hiuo·clch1rda nt•
~e a&rmIdy resides on V'qinia's death row where he was

Frank VaJda. ill his death row, ceO.

=ng:

I

0uanUty:

$14.50 oach

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$2.50

Name:

AddI'GS8:
Clty:
Phone:

,State:

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Plaase lI8nd 8 chec:k or a money onfar 10 Ih9 '
address aboVo.

11---------------

FLORIDA PRISON LEGAL

Perspectives - - - - - - - - -

~,LEGISLATIVEWATCH

_

:. .

, '

~

By John Hudson "

The information contained in this section is compiledfrom published Session Laws and may be useful to or impact Floridd prisoners,
This section is an information source designed to provide accurate information concerning the late,\'t in Florida law, Occasionally,
Legislative Watch will publish other items of interest related to Florida's legislature such as upcoming bills, legislative history and
bios on current legislators, New Imv and pending bills will be clearly identified /0 avoid confusion as /0 what is lmv and what is not,

NEW
LAWS,
SESSION

2003

LEGISLAliVE

HEALTH CARE - PRISONERS
Governor Bush approved an act of legislation
relating to complaints against healthcare practitioners who
provide health Care services within the Department of
Corrections (DOC).
Resulting from House Bill number 1553, Florida
Statues section 456.073 is amended and now provides that
a state prisoner must exhaust all available remedies
administratively within the DOC before filing a complaint
with the Department of Hea.lth (DOH).
There is one exception. If the DOH determines
after a preliminary inquiry of a state prisoner's complaint
that the practitioner may present a serious threat to the
health and safety of any individual who is not a state
prisoner, the DOH may determine the legal sufficiency of
the complaint and proceed with discipline against the
practitioner. Chapter 2003-84, Laws of Florida.
[Comment: This law seems to give broader power to the
DOC in handling matters dealing with discipline of those
practitioners treating prisoners. One would think such
matters should be left to the professionals at DOH. In
addition, it seems a double standard for the POH to
review a complaint by a state prisoner that may effect a
non-prisoner more expediently than that of the prisoner
himself.]

CRIMES AND OFFENSES
Burglary - The criminal offense of impairing or
impeding the telephone or power to a dwelling to
facilitate or further a burglary is created.
As a result of 'House Bill number 1675, Florida
Statutes section 810.061 was created as part of an act
relating to the crimes of facilitating or furthering a
burglary contained in Chapter 2003-84, Laws of Florida.
The law became effective July 1, 2003, and provides a
third degree felony for the offense.

- - - - - - - - - - - - - - 12

Controlled Substances - Florida Statutes section
893.13 has been amended adding state, county, or
municipal' parks, community centers, or publicly owned
recreational facilities to the list of real property that
penalizes persons for committing. drug offenses within
1,000 feet of same;
Effective July I, 2003, it is unlawful to sell,
manufacture, or deliver or possess with intent to sell,
manufacture, or deliver a controUed substance in, on, or
within 1,000 feet of the abov~named property along with
educational property and parks, which were previously
named within the statute.
For the purpose of this law, the term "community
center" means a facility operated by a nonprofit
community-based organization for the provision of
recreational, social, or educational services to the public.
Chapter 2003-95, Laws of Florida.
Stalking - The criminal offense of stalking in
violation of Florida Statutes section 784.048 is amended
to include cyberstalking.
The law enacted by the Florida legislature results
from House Bill number 479 and dermes "cyberstalk" to
mean communication by means of electronic mail or
electronic communications which causes substantial
emotional distress directed at· a specific person and does
not serve a legitimate puipose.
The amendment also revised the elements of the
offense of aggravated stalking for placing a person in fear
of death or bodily injury to include the person's child,
sibling, spouse, parent, or dependant. Chapter 2003-23,
Laws of Florida.
Sexual Battery - Florida Statutes section 775.15 is
reenacted and subsection (7) is amended to provide that
there is no statute of limitations to prosecute on firstdegree felony sexual battery if the victim was under 18 at
the time the offense was committed. Chapter 2003-116,
Laws of Florida.
Dangerous Sexual Felony Offender Act - Senate
Bill 2172 passed amending Florida Statutes section

- - - - - - - - - - - - - - - FLORIDA PRISON LEGAL

794.0115,

which

deals

with

repeat

sexual

Perspectives - - - - - - - - - - - - - - -

programs that would benefit prisoners and families. For
the FDOC to continue the programs beneficial to
prisoners, versus utilizing millions of dollars for some
other self-serving purpose, is very doubtful.] •

batterers.
The law took effect July I, 2003, and substantially
rewords section 794.0115, Florida Statutes. The new law
provides for certain individuals deemed dangerous $eXU81
felony offenders to be sentenced to a mandatory minimum
term of25 years, up to and including life imprisonment.
This new change in law should be read in its
entirety for proper determination of its applicable
provision. In short, it defmes dangerous sexual felony
offender as one who is a repeat sexual batterer and is also
convicted of a violation which causes serious person
injury, uses or threatens' to use a deadly weapon,
victimizes more than one person, or was under the
jurisdiction of a court at the time the offense was
committed. Chapter 2003-115, Laws of Florida.

Florida Supreme Court Suspends DNA Deadline

·Molor Vehicles - Tesl For Alcohol, Chemical
Substances - Motor vehicle provisions are amended in
Florida Statutes 327.352 to provide that all operators of
motor vehicles or vessels 'are deemed to have given
consent to urine tests for chemical substances or
controlled substances in the event of a lawful arrest.
Chapter 2003-54, Laws ofFlorida.

Leaving Scene of Accident - Resulting from
House Bill 1683, Florida Statues, section 921.0022, is
amended enhancing penalties for the offense of leaving
the scene of an accident involving a fatality. The offense,
leaving the scene, is contained in Florida Statutes, section
316.027(1)(b). The offense is now deemed as a level 7 .
versus a level 6 as previously set forth in the statutes.
Chapter 2003-176, Laws of Florida.

On September 30, 2003, the state Supreme Court
.suspended the DNA deadline that was to expire
on October 1,2003. The decision to suspend the
deadline comes as attorneys and several dozen
law students at two universities struggle with a
. backlog of about 600 requests from inmates who
say DNA evidence will exonerate them. Jenny
Greenberg, director of the Innocent Initiative at
Florida State 'University in' Tallahassee, and
Craig Trocino, .co-director .. of ~e Florida
Innocence Project at Nova Southeastern
University in Fort Lauderdale say the requests
are continuing to corne in daily. Bya 4-3 vote.
the Supreme Court agreed to suspend the
deadline indefinitely· to give them more time to
consid~r arguments that the deadline is
.W1conStitutional. The court set oral arguments
for November 7, 2003. FPLP will continue to
monitor this development and report any and all
actions in future issues.

INMATE WELFARE TRUST FUND (IWTF)
As a result of Senate Bill 954, the IWTF has been
completely eliminated. Effective July I, 2003, revenues
which would have previously been deposited in the IWfF
to fund benefit and welfare programs for state prisoners
are now placed in the General Revenue Fund.
This new law was unanimously approved by both
the Senate and House and signed into law by Governor
Bush on June 23, 2003. Chapter 2003-179, Laws of
Florida.

[Comment: This law could mean the end of programs for
prisoners. The IWfF consisted of funds generated by
prisoners and their families in the form of profits from
canteen purchases, visitation vending machines, and the
commissions collected off collect telephone rates charged
to prisoner families. It was a trust fund administered by
the Florida Department of Corrections (FDOC) for the
sole purpose to disperse net profits made from revenues
generated from prisoners and their families to be. in a
sense, given back to them in the form of legitimate

ADVERTISING NOTICE
Due to a concern for oui members. the FPLP staff
tries to ensun: that advcrnseR inthcse pages an:
reputable and qualified to provide the services being
offen:d. We cannot meet every advertiser. however.
so members an: advised to always pcnonally contact
advertiserS for further infonnation on their
qualifications and experience befon: making a
decision to hin: an attorney or other professional
service provider. You should never send Icga/ or
other documents to an advertiser befon: contacting
them and receiving directions to send such material.
For those wishing to advertise in FPLP. please write
for rate infonnati!ln. Address such mail to:
Florida Prison Legal Pctspcctivcs
Attn: Advertising
P.O. Box 660-387
Chuluota,.FL 32766
Or

Elllail: FPLP@aol.com

13 - - - - ; - -

_

FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - - -

IOTABLECASES

....

<

....•.••.•...•

&YOSCAR HANSON' ",. mllO~~1tJ~.~
The following are slimmaries o/recent state andfederal cases that may be IISeflllto or have a significant impact on Florida prisoners.
Readers should always read the full opinion as published in the Florida Law Weekly (Fla.L. Weekly); Florida Law Weekly Federal
(FiaL Weekly Federal); Southern Reporter 2d Series (So.2d); Federal Supplement 2d Series (F.Supp.2d); Federal Reporter 3d Series
(F.3d); or the Supreme Court Reporter (S.Ct.), since these summaries are for general information only.

u.s. SUPREME COURT

limitations governing prosecutions at
the time the crimes were allegedly
committed had set forth a 3-year
Stogner v. California, 16 Fla.L.
limitations period. That period had
Weekly Fed. S437 (6/26/03)
run
22 years or more before
In 1993, California enacted a
Stogner's prosecution.
new criminal statute of limitations
Stogner had moved from the
governing sex-related child abuse
complaint's
dismissal. He argued
crimes. The new statute pennitted
Federal
Constitution's Ex
that
the
prosecution for those crimes where
Art. I, section 10,
Post
Facto
Clause,
"the limitation period specified in
clause I, forbids revival of a
prior statutes of limitations has
previously tim~barred prosecution.
expired" - provided that (I) a victim
The trial court agreed that such a
had reported an allegation of abuse to
revival is unconstitutional. But the
the police, (2) there was independent
California
Court of Appeal reversed,
evidence
that
clearly
and
citing
a
recent,
contrary decision by
convincingly
corroborates
the
Supreme Court.
the
California
victim's allegation, and (3) the
then
moved
to dismiss his
Stogner
prosecution was begun within one
indictment,
arguing
that
his
year of the victim's report. A related
prosecution
is
unconstitutional
under
provision, added to the statute in
both the Ex Post Facto Clause and
1996, makes clear that a prosecution
the
Due Process Clause, Arndt. 14,
satisfying these three conditions
section
I. The' trial 'court denied
"shall revive any cause of action
Stogner's
motion, and the Court of
barred by prior statutes of
Appeal
upheld
that denial.
limitations."
The statute thus
The
U.S.
Supreme Court
authorized prosecution for· criminal
agreed
that
the
State's
interest in
acts
committeJ
many
years
prosecuting
child
abuse
cases
is an
beforehand - and where the original
one.
But
there
is
also
a
important
limitations period has expired - as
predominating
constitutional
interest
long as prosecution began within a
in forbidding the State to revive a
year of a victim's first complaint to
long-forbidden prosecution.
the police.
. The Supreme Court ruled
In 1998, a California grand
that
the
statute is unfairly retroactive
jury indicted Marion Reynolds .
to Stogner. A long line of
as
applied
Stogner, the petitioner of the writ of .
judicial
authority
supports
certiorari to the Court of Appeal of
of
this
law
as
ex post
.
characterization
California, charging him with sexfacto.
related child abuse CQIlUIlitted
It was further concluded that
decades earlier - between 1955 and
law
enacted
after expiration of a
a
1973.
Without the new statute
limitations
previously
applicable·
allowing revival of the State's cause
period
violates
the
Ex
Post
Facto
of action, California could not have
when
it
is
applied
to
revive
a
Clause
prosecuted Stogner. The statute of
previously tim~barred prosecution.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 14

u.s. COURT OF APPEALS
Siebert
v.
Campbell,
16
Fla.L.Weekly Fed. C756 (1IthCir.
6123/03) .
Daniel Siebert appealed from
the dismissal of his petitions for.
habeas corpus under 28 U.S.C.
section 2254. This case reached the
II th Circuit eleven years after he first
sought collateral review of his
convictions and sentences of death
where the courts had determined
only that he is subject to procedural
bars and· therefore have never
allowed the merits of his claims to
control. The district courts dismissed
Siebert's petitions on the ground that
they were untimely under the on~
year statute of limitations established
by the Anti-Terrorism and Effective
Death Penalty Act of 1996
(AEDPA), now codified at 28 U.S.C.
section 2244(d)(1).
Siebert had
argued that the on~year deadline did
not bar his petitions because a
separate AEDPA provision, 28
U.S.C. section 2244(dX2), tolled the
limitations ·period for the time during
which
his
"properly
filed"
applications for postconviction relief
were pending in the Alabama courts.
Because state courts had held
in these proceedings that Siebert had
missed the expiration of Alabama's
own post-conviction statute of
limitations, the district courts
concluded that Siebert's state
petitions were not "properly filed"
and that AEDPA's tolling provision
thus did not apply. So the question
brought to the J1111 Circuit Court of

_

- - -.......- - - - - - - - - - - FLORIDA PRISON LEGAL

Appeals is whether Siebert's
Alabama petitions, which were
. accepted by the courts but ultimately
found to have been filed late, should
be considered properly filed within
the meaning of AEOPA's tolling
provision and the Supreme Court's
interpretation of that tenn in Artuz v.
Bennen, 531 U.S. 4 (2000).
The 11 th Circuit goes into
quite an ex,tensive· discussion
regarding the tenn "properly filed"
which intum led into discussions of
discretionary application- of the
State's post-conviction time bar and
discretionary
time
bars
as
"conditions to obtaining relief."
Highlighted
in
this
discussion is where the U.S.
Supreme Court in Artuz v. Bennett
held that an· application is properly
filed "when its delivery and
acceptance are in compliance with
the applicable laws and rules
governing filing."
Contrasting a
"condition to filing" with a
"condition to obtaining relief," the
Court
concluded
that
noncompliance with conditions to
obtaining relief does oot prevent a
habeas petitioner's state application
from being "properly filed."
It was also pointed out in this
discussion, Weekley v. Moore, 244
F3d 874 (11 th Cir. 2001), where it
was held that a Florida prisoner's
post-conviction
motions
were
"properly filed" even though the
Florida courts had dismissed them as
successive.
Since timeliness is the only
issued raised by the state in arguing
that Siebert failed to comply with the
laws and rules governing filings
under the state rule, the II th Circuit
concluded that his petitions were
properly filed within the meaning of
section 2244(dX2).

DISTRICT

COURT

OF·

APPEAL
Boatwright v. State, 28 Fla.L.WeeJdY
01476 (F1a.3d DCA 6125/03)
Boatwright
was
on
community control when he obtained

PerspectIves - - - - - - - - - - - - - -

pennission to attend church services
on Sunday .between _8:00 a.m. and
12:00 p.m. A church bus picked up
Boatwright and drove him to the
Church. At the conclusion of the
services, Boatwright decided to
attend a group counseling at the
bishop's home until 5:30 p.m. when
he wasretumed home by the church
bus.
Boatwright's
community
cOntrol supervisor initiated a
violation _notice and the trial court
conducted a revocation hearing and
imposed a IS-year- sentence for the
underlying charges on the ground
that Boatwright had an unauthorized
absence from his residence.
The Third DCA reversed and
held that while the decision was
worthy of Draco, an Athenian of the
7th century B.C. who drew up a code
of laws noted for their severity, but
oot in this case.
The Court correctly noted
that to support a violation of
community control, the violation
must be "willful and substantial."
The Court reversed and noted their
decision
would
take
effect
immediately without regard to the
ftling of a motion for rehearing.

[Note: This case is being pointed out
for those who wish to be sure that
their motion, whatever it may be,
will be 'considered and able to prove
it was timely within the rules that
govern it When delivering your
legal documents to prison officials:
(I) Always be sure you attach a
certificate of service (if applicable)
al}d include any required oath with
the date you delivered the documents
to prison officials for mailing.
(2)
Always
photocopy legal
documents you are filing and keep
that photocopy in your personal files.
(3) Deliver your legal documents to
the proper mail representative- and
make sure they date stamp the
documents and that you initial and
date it.
(4)00 not place your legal document
in mail drop boxes, you have no
guarantee how your legal mail will
be processed, which _could , be
important later. Besides, according
to FAC 33-210. 102 (8) (b), prisoners
are prohibited from ·placing legal
mail in routine mail drop boxes.-as]

•

Correction
In the last issue (Vol. 9 Issue
4), there was a misstatement
regarding the case of Johnson
v. Florida Parole Commission,
841 So. 2d 615 (Fla. 1st DCA
2003). The summary should
have read that the circuit court
in Gulf County improperly
denied Johnson's petition for
writ
of habeas
corpus
challenging the factual basis for
his parole revocation on the
ground that it was a successive
petition to a writ of mandamus
filed
in
Leon
County
challenging his PPRD date
established by the Parole
Commission. The First DCA
granted the petition for writ of
certiorari and remanded back to
Gulf County for further
proceedings. The full text ofthe
opinion can be read at the cite
listed above. We apologize for
the printed error.•

Valencia v. State, 28 FIa.L.Weekly
01637 (4th OCA 7/16/03)
Jeffrey Valencia appealed
the denial order of his Florida Rule
of Criminal Procedure 3.850 motion
for postconviction relief as untimely.
In this case the district court
of appeal affirmed the denial~ finding
that Valencia failed to establish any
proot i.e., documents, affidavits, or
even an actual copy of the motion
that he alleged he delivered to prison
authorities in February 2001, within
the time period for filing the motion.
Instead, Valencia relied only on his
own statement that he did so.
- Because Valencia did not
keep an actual copy of his motion
filed in 2001, the district court had
no way of substantiating that his
2002 redrawn motion was the same
motion or that it raised the same
issues as the 200I motion.

- - - - - - - - - - - - - - - - - 1 5 - - - - -. - - -

_

PerspectIves - - - - - - - - - ; . . . . . .
_
.
audit noted that records concerning earlier spending by
*FPLAO ParQle Project*
Henry, who was chairman of the FPC since 1998, were
Former FPC Chairman Arrested,
missing from the agency's files.
The preliminary audit also describes a Parole
Investigation Continues
Commission
where accountability for major managerial
by Bob Posey
functions - spending, sexual-harassment investigations,
pay raises, bonuses, criminal-background checks of
"I believe you have a warrant for my arrest,"
employees
and monitoring nepotism and du~l­
fonner Florida Parole Commission (FPC) Chairman
employment
:was out of control from at least July 2001
Ji~ie ~ Henry, 53, stiffly said as he stepped up to the'
through
February
2003. (FPLP, Volume 9, Issue 3,
booking wmdow at the ~n County Jail on the morning
accurately
reported
that the corruption can be documented
of August 21, 2003. He was released a few hours later on
back
to
at
least
1998).
h!s own recognizance, after being fingerprinted, having
Within a couple of weeks of the preliminary audit
his mug shot taken, and being booked and charged with
report
being released the FDLE wrapped up its
three felony counts, of grand theft and 21 misdemeanor
investigation
of Henry in a 71-page arrest affidavit and
counts of e~account, salary and records
issued
a
warrant
for his arrest. That affidavit, prepared by
falsification, and using taxpayer monies for personal
Mark·
Perez,
an
inspector in the FDLE's Office of
purchases.
Executive
Investigations,
details in page after page a trail
Henry refused to comment when asked questions
of
lies,
deceit
and
overt
theft
from Florida tax-payers.
'
in the waiting area of the jail. His attorney, Stephen
The
affidavit
says
that
Henry
is
documented
using
Dob~n, who has. successfully defended several public
his state P-Card to make personal purchases, including
offiCIals and promment Tallahasseeans in criminal eases,
buying' airline tickets for a friend, and buying more than
accompanied him to the jail to turn himself in and later
$5,000
in merchandise from Sears, Wal-Mart, Home
that day entered a not-guilty plea before the court on the
Depot,
Lowe's, a video store and Comeast Cable
charges.
television.
He also used the P-Card to pay personal
Henry resigned as the Parole Commission
attorney
fees
and to pay personal cell phone bills. The
Chairman on May 9, 2003, citing "personal reasons" for
affidavit,
which
cites ,the AG Office's preliminary audit,·
quitting as head of the'agency that makes the decisions on
,
also
alleges
numerous
instances where Henry padded his '
parole for Florida's remaining 5,aOO-plus parole eligible
claimed
expenses
for
business trips to other Parole
prisoners and on those prisoners placed on conditional
Commission
field
offices,
meetings and other official
~Ieas~ s~pervision.
The FPC also does pre-clemency
appointments.
Perez
notes
that
between April 2002 and
mvestigations, but has been under increasing ftre in recent
March
2003
it
was
determined.
that
Henry submitted 21
years as most of what the agency does is duplicative of
fraudulent
travel
vouchers,
most
of
which contained
work already done by the Department ofCorrections.
fraudulent
eXpense
items.
Three days after Henry resigned the Florida
Perez's affidavit accuses, Henry of receiving a
Department of Law Enforcement (FDLE) announced it
while
not perfo~g state business by turning in
salary
had started an investigation on Henry and the Parole
false
time
sheets
amounting to $14,959.73. Actions
Commission involving possible crimes.
'
questioned in the affidavit include Henry using his state
credit card to purchase airline tickets for a friend, Frances
Penonal Piggy Bank
Cox,
to accompany him on a supposedly official trip to
As the FDLE pursued its investigation, the state
Cincinnati
in September 2002. Allegedly, the trip was for
Auditor General's Office was also continuing to audit FPC
a meeting.with Jbe board of a residential center for young
records following infonnation provided earlier this year
offend':l's. However, "from witness testimony, it was
pointing to misuse of 'tax-payer money and thefts that
detennmed
that Jimmie Henry spent the majority of this
were occurring at the Parole Commission.
time with the individual (Cox) visiting friends and sightOn August I, the AG's Office' released a
seeing in the Cincinnati area," Perez wrote.
preliminary audit that showed that Henry, as head of the
The affidavit describes how cell phone records
FPC, was using the agency's funds as his own Personal
were
painstakingly
compared to Henry's travel vouchers
piggy bank. According to that audit Henry used his state- '
to
determine
-that
he
frequently was not even in the city
purchasing card - known as a "P-Card" - for personal
where
he
obtained
reimbursement
for being.
purchases at variouS stores, for a private attorney and for
In
addition
to
the
Cincinnati
"vacation," Henry
cell-phone and cable-TV services, used his state cell
also
paid
himself
a
salary
and
expenseS
to go to Atlanta to
phone for personal business without reimbursement, and
attend
his
daughter's
college
graduation,
during the same
falsified attendance records and travel vouchers. "These
week
in
which
he
upgraded
from
a
$99-a-night
hotel room
questioned and improper expenditures exceeded $22,500,"
to
a
$159-a-night
"crown
suite"
at
the
downtown
Hyatt'
and occurred beginning April 2002, said the audit. The
,Regency. During one trip where he 'claimed he went to
FLORIDA PRISON LEGAL

'

----------.-----16----

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Tampa and Orlando on parole business he actually went to
the Florida Classic football game betWeen. Florida A&M
University (Henry's alma mater) and Bethune-Cookman
College.
According to the affidavit, other records and
witness accounts show that Henry filed for and received
reimbursement for a four-day trip to Miami to visit a
commission office when he was really in Greenville, S.C.,
. visiting his female friend Cox. On other occasions he
received reimbursements for supposedly official parole
trips to Jacksonville, Tampa and Houston, TIC, when he
was in South Carolina. He was also reimbursed for travel
to Pensacola - a trip that neVer occurred.
The more than $14,000 in false travel vouchers is
the basis of one of the grand theft charges against Henry.
The other two felony charges are based on over $1,600 he
used to pay for personal phone calls from state funds and
over $8,000' in personal purchases that he made with the
state P-Card. With a more detailed accounting than the
Auditor General's preliminary audit, the FDLE accuses'
Henry of stealing more than $25,000 in just the one-year
periOd from April 2002 to March 2003. The affidavit also
notes that recQrds on Henry's spending before April 2002
are missing from the FPC's offices and presumptively
have been destroyed.
.
1'lp oftbe Iceberg
Although the FDLE's affidavit focused primarily

on Henry's wrongdoing at· the Parole Commission, the
story doesn't end with his arrest - as apparently is the
intention of some.
During August, between the time when the
Auditor General's office release its preliminary audit and
when Henry was charged, top officials at the Parole
Commission initiated a CYA strategy.
.
Although Henry's fraudulent trips and personal
expenditures were observed by and known to numerous
Parole Commission employees and top officials, who
never reported them to the police, they now claim that at
least some subordinates questioned him about the legality
of his actions. However, when issues of impropriety were
raised, Henry brushed them aside and defended his
actions, they claim.
'" don't see these (employees) as buddies of his. ,
think they thought they had to do this because he was
boss," commented Monica David, appointed May 13 to be
Henry's successor as ch8irman of the Parole Conuilission.
"Hd was told by two or three different people he shouldn't
do these personal purchases, and his response was, "
know the rules. 1 can do this,~" David said. She had
nothing to say about what knowledge she had of Henry's
activities or what action she took to stop same.
"People felt he was the chairman; he knows· what
he's doing," Fred Schuknecht lamely said. Schuknecht
was hired by David in May to be the FPC's new director
of administration, a move seen by some as an attempt to

Perspectives - - - - - - - - - - - - - -

clean up any remaining incriminating records or evidence
of wrongdoing at the Commission. Schukn~ht fonnerly
worked at the FPC's next-door neighbor, the Department
of Corrections, wh~ he was the Inspector General in
charge of internal investigations and cover-ups. "Any
records that were overlooked by or hidden from the
auditor's investigators, are certainly gone by now," said
Sherri Johnson, a research specialist at Florida Prisoners'
Legal Aid· Organization based in Orlando, Florida.
Johnson, working. with other researchers at FPLAO,
surreptitiously documented corruption at the FPC for two
years before turning their findings over to state officials
. earlier this year.
Johnson also noted that there are other serious
problems that have occurred at the Parole Commission
that are not under the purview of the Auditor Genera~ and
so have not been addressed yet. She says those problems
will be exposed and addressed by the Parole Project
started by the organization.
After Henry was charged and arrested, a final
audit report was released by the Auditor General. It
reiterates and expands on the preliminary report and
contradicts Monica David's claims that Henry didn't have
"buddieS" at the commission. In fact, several employees
and top FPC officials were working with Henry to cover
up his activities and sharing in the fraud on Florida
taxpayers.
Hands in the Cookie Jar

,

Included in the findings of the Auditor General's
preliminary and fmal reports is the following:
Jimmie Henry's Personal Assistant:
~

Made travel arrangements using State resources
for Henry and his traveling companions knowing
the travel was not business related.

~

Completed travel vouchers for Henry (including
reimbursement for mileage and departure and
return times) before Henry made the trips.

~

lnfonned
the Finance and
Accounting
.Administrator when travel vouchers needed to be
revised to cover Hemy's personal P-Card
purchases.

~

Prepared travel reimbursement vouchers for
Henry with knowledge that Henry never made the
claimed trips.

The Finance and Accounting Administrator:
~

Approved Henry's personal P-Card purchases.

----.;-------------17---

_

- - - - - - - - - - - - - - . FLORIDA PRISON LEGAL

)

Knowingly coded Henry's· personal P-Card
charges as travel expenditures when they were not
travel-related.
'

)

Worked with Henry's Personal Assistallt to
inanipulate travel vouchers to cover. up Henry's
personal
, P-Card purchases.

)

Obtained almost $2.000 reimbursement from FPC
funds to pay for personal college tuition in
violation ofFlorida laws.

)

Was working a second job unrelated to the FPC
while using FPC equipment and computers to do
the second job on FPC time.

>

Received large salary increases, bonuses and
financial awards from Henry while he was
chairman that auditors found to be unjustified and
questionable.

Perspect1ves - - - - - - . . , . - - - - - - - -

>

Other FPC Employees:
)

Auditors found that between 2001 and 2003, other
FPC erilp,loyees made over $80.000 in P-Card
purchases for which no documentation exists
showing what was purchased or if it was ever
received by the Commission.

>

A prior audit report (No.02-09S) shows that in
2000 instead of turning unused FPC budget
money back over to the general. revenue fund at
the end of the year. Henry gave every FPC
emploYee bonuses out of the surplus and then
failed to report same as required by law. (See:
FPLP. Volume 9, Issue 3.)

>.

Were allowed to use FPC equipment at their
homes for personal purposes.

>

Were allowed to dispose of FPC property without
following required procedures to verifY that
pro~ should be disposed of.
.

The Director ofAdministration:

>

Gave hiS approval for personaJ P-Card purchases
made by Henry.

>

Approved falsified travel vouchers for Henry
including deductions for personal P~ard chaiges.

>

Received large salary increases, bonuses and
financial awards from Henry that auditors found
to be unjustified and questionable.

The Human Resources Administrator:

>

Hired his brother-in-law as an FPC employee then
promoted him to being Purchasing Agent ,

>

Failed to perform criminal background checks on
employment 'applicants resulting in employees
being'hired with, in at least one case, extensive
criminal histories. .

) . Had a sexual harassment/attempted sexual battery
complaint filed against him by another male FPC
employee that resulted in a secret settlement being
made to the employee of $S3.964 in taxpayer
monies. (FPLP reported on that incident in
Volume 9, Issue 4. ·Since then the Leon County
Sherifrs Department has said it will not charge
former Human Resources Administrator Frank
Trueblood with a crime because the victim refuses
to cooperate.)

Received large salBIy increases and bonuses from
Henry that auditors found were not justified .and
were questionable.

•

•

>

The daugbter-in-Iaw of the Vice Chair of the FPC.
Frederick Dunphy.' was hired as an Executive
Secretary in apparent contradiction to Fla.
nepotism laws. She has been asked to resign.

lDvestJgation Continues
None of the other FPC employees who were
found to have been helping cover for Henry or committing
possibly illegal acts themselves have been charged with a
. crime. Quietly. however. they h8ve been getting the ax.
The Director of Administration, Shirley A Miller, was
forced to resign June 30. The Finance and Accounting
administrator. Lee Baldwin, resigned August 7. The
Human Resources Administrator. Frank Trueblood,
resigned July 3. and the Information Services
Administrator, Michael Francis, resigned July 24.
Monica David, the new FPC chairman, who so far
has avoided allegations .of wrongdoing, has vowed to
clean up the agency. "The audit was very helpful to me as
the new administrator of the agency to have this
management tool to assist me in making the changC!i I had
to make." said David. She may come to regret her
promotion.
FPLAO has vowed that the corruption at the FPC
has gone on long enough. When the FPLAO Parole
Project was launched May I of this year, the commitment
was made to parolo-eligible prisoners and their families to
expose the FPC's corruption and seek relief for those
prisoners the Commission has been holding hostage to

18---------------

-------------~ FLORIDA PRISON LEGAL Perspectlves - - - - - - - - - - - - - -

continue its corrupt existence. There are still those at the
Commission, including Commissioners David and'
Dunphy, who believe they have weathered the stonn and
survived. and that the agency can continue to operate as it
has been. They've only seen the tip of the iceberg. As the
Parole Project continues, further revelations about the FPC
are going to come to light.
So far, several hundred parole-eligible prisoners
and their families have joined the FPLAO Parole Project.
The support provided so far has allowed the Project to
expand its investigation of the FPC, resulting in more
valuable infonnation being obtained for the struggle.
Those parole-eligible prisoners who have not joined the
Project are called on to do so now. Much important work
remains to be done; everyone's involvement and support
is needed. The time is now. To obtain infonnation about
how you can join the Parole Project, contact:
FPLAO, Inc.
Parole Project
P.O. Box 660-387
Chuluota, FL 32766 •

COrrectiODS & Clarificatioos

,

, FPLP is committedto accurate reporting .
Contaqt our stqffto report pei:ceived e11l0rs..
In the last issue of FPLP, Vol.9,lss. 4,
"Florida Parole Commission:' A ' Culture of
Corruption," relying' on mainstream media reports, it
was eiToneously reported that fonner FPC' Human
Resources director Frank Trueblood had, been
, ~used.by a feUow FPC employee of rape, resulting
in a payoff of SSO,()OO to silence the victim.
According to official docgmentsrecently obtained by
the FPLAO ~arole Projec4.which mainstream media
obviously did· not have access to,:·the victim actually
accused Trueblood of attempted rape, exposing
h~lf to the victim, and sexually harassing him ·in
August 200.1, res~lting in the victim quittinghisjob
with the FPC.. Further, documents show' the' total
payoff to the victim was $53,964. The Leon County
. Sheriff's Office has now said it will nQt ch~ge
Trueblood with any crime as a result of his conduct
becau!ie the victim refuses to coope~ with police.
Ironically, The contract settlement ~ment
requires the victim to, not cooperate or assistant in
any .actions r:egardingthis'incident. whatsoever.

Attention
Parole-Eligible Prisoners
. On ,M~y' 1, 2003, FPLAO launched the
Parole Project to expose the corruptionwithm the
.Florida Parole Commission and to work towards
increasing the number of parole releases and to
reduce the number of technical violation·s. Since the
Project started, fonner Chairman Jimmy Heiny has
been forced to resign and he has been charged with
numerous criminal offenses. In addition, four other
top officials in the FPC have· been forCed to resign
and corruption has been exposed throughout the
system. As the Parole Project continues there is much
more that is g()ing to come to light about the FPC, if
'the Project receives the support it needs from paroleeligible prisoners and their families and friends. So
~, .several hundred parole-eligible prisoners have
joined the Project and sent in the minimal financial
support . requested. Those prisoners' outside
supporters have been' contacted and many have
joined the Project and made donations. However,
many letters. to outside supporters have gone
unanswered arid those people need to be ~minded '
how'importantthisproject is and how their support is
needed.- right now.
There are also a few thousand parole-eligible
prisoners remaining who have not joined or sent
support to the Project. Those are the ones who have
given up, or think they will miraculously receive
parole, if they continue to act like a mouse in their
holes, or those who IP'e so negative they don't believe
;" :iit,.y.thi~ganymore~or who are so institutionalized
; ·th~ iarelift8id to evensupportso~ethingthat will
benefit them. Before the·Parole Project started, few,
if any, parole-eligible prisoners would have .believed
the corruption Within the FPC could ever be exposed,
much less that the very chairman would be charged
with criminal'offenses~ And there is much more to,
, come,' ohanges will be made, but it cannot be done
. wi~out the p~cip~ionand support of all paroleeligible prisoners and their families and friends.
Now is the time. All we need 'is YOUR
minimal support. You can either be part of the
solution or part of the problem. There is a lot
r~m~inin8 to be done; you are invited to be a· part of
::it'Fojoin tho·Parole Project, contact:
,
; FPLAO, Ine.
. Parole:proJeet .
Post Offic~Box 66,0-387
,
· Cbulu~ta, FL 31766
,

.

----------------19----

"

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Parole Commission Replacement
Sparks Criticism
by Teresa Bums Posey
On August 26, 2003, Gov. Jeb Bush cast the
pivotal vote to reject Robert Woody, an African American
finalist, for the vacancy. on the three-member Florida
Parole Commission created when former Commission
Chairman Jimmie Henry was forced to resign in May
amid allegations of criminal misconduct Much to the
dismay of the black .community, black legislators and civil
rights activists, Bush voted to appoint his victim services
coordinator, Tena Pate, to the Commission, breaking a tie
vote between the other four Executive Cabinet members.
Pate, 45, has been the state's victim rights
coordinator in the governor's office since 1993, serving
under three governors. She also served as clemency
assistant to Gov. Lawton Chiles, Gov. Buddy MacKay and
Bush from 1993 to 200I and previously worked· as a
victim rights coordinator in the First Judicial Circuit. Part
of her duties in the governor's office has been' consoling
the families of crime victims during the execution process.
Her appointment as a parole commissioner came only five
days after' Henry was arrested and charged with three
felony counts of grand theft and 21 misdemeanors for
crimes allegedly committed when he was the chief parole
commissioner. The position pays $85,355 a year and Pate
will have to have her appointment confirmed by the
Florida Senate during the 2004 legislative.session.
Pate's selection to serve with the two other current
white parole commissioners, Monica David, who took
over as chairman after Hemy resigned, and Frederick
Dunphy, revealed a split between Bush and Chief
Financial Officer Tom Gallagher, a fellow Republicim
who said Robert Woody was more qualified. Gallagher, a
Cabinet member, along with Agriculture Commissioner
Charles Bronson, voted for Woody over Pate. Gallagher
pointed out that a majority of state prisoners are black and
Woody's selection would acknowledge that "disparity."
Otherwise, he said, "We would be lacking for the first
time in many, many years African American
representation on the Parole Commission, and that, I
think, would be a mistake," adding that 66 percent of
prisoners are black.
Attorney General· Charlie "Chain Gang" Crist (as
he likes to be called) voted along with ~ush for Pate,
rejecting the argument that a mostly black prison system
should not have an all-white parole board. The parole
board decides hundreds of parole cases and thousands of
conditional release and clemency cases of state prisoners
each year.
Bush pointed to Pate's more than two decades of
victim advocacy work for' his decision in het favor.
. Gallagher pointed out that Woody has more experience in
criminal justice and is more qualified, to no avail.

PerspectIves - - - - - - - - - - - - - -

Woody, 50, is the head of the Department of
Corrections' victim assistance program, has been a parole
officer and probation supervisor and received a master's
degree in criminal justice from Rollins College in 1979.
Pate has no experience in the parole or probation fields
and only has a bachelor's degree from Florida State that
she received last summer.
State Representative Arthenia Joyner denounced
the governor's decision. "This is an injustice to the state
correctional system...This is a sad day in Florida when 66
percent of the controlled release population and 48 percent
of parol~eligible inmates are African American and there
is nQ minority representation on the board that evaluates
these prisoners," said Joyner.
Senator Les Miller said that not having an African
American on the parole board sends a bad message. He
said it's significant because the board is responsible for
evaluating clemency, civil rights restoration and other
important prisoner issues.
State Senator Mandy Dawson said Pate's
appointtnent was a setback for African Americans in
Florida. "It's frightening to me to think we may be going
backwards," Dawson said. "I guess we're back on the
plantation."
Betty Reed, chairperson for the NAACP Political
'Action Committee, called Bush's decision "awful." She is
encouraging a letter-writing campaign to all state senators
since they will have to confmn Pate's appointment when
they go into session March 2004. Reed said the NAACP
will help people write letters to senators if they will call
813/234-8683 and leave their name and number.
Someone will return their call.
[Sources:
Gov. Office Press Release, 8/26/03; St.
Petersburg Times, 8/27/03; Florida Star Banner, 8/27/03;
Tallahassee Democrat, 8/27/03; AP 8/27/03] •

.....------

----_

Attention Reader:

Mr. Hansch is
specifically looking for
All inmates that were
persons that remember a
convicted in Orange
large support column
County, FL, after a jury which obstructed their
trial during the time
view during their trial
frame of January 1991 - proceedings.
December 1996 in Court
Room P, Room 215,
All correspondence will
(Alice Blackwell White's be kept confidential, and
Court Room) are
all inmates that respond
encouraged to write !"r. wDl be kept informed of
Peter K. H. Hansch, P.O. any possible future
Box 76249, Ocala, FL
litigation regarding this
34481-0249.
matter.

20---------------

- - - - - - - - - - - - - - FLORiDA PRISON.LE~PersjJect1ves

--------------

MICHAEL V. GIORDANO
AGGRESSIVE POST-CONVICTION REPRESENTATION
The Law Offices of Michael V. Giordano
412 E. Madison Street, Ste. 824
Tampa, Florida 33602
(813) 228-0070
A STATEWIDE practice specializing in Post-Conviction
Relief on both the State' and Federal levels:

**EXECUTIVE CLEMENCY**'
**PAROLE**
**DIRECT APPEALS**
**HABEAS CORPUS**
**POST-CONVICTION RELIEF**
*INEFFECTIVE COUNSEL
*WITHDRAWAL OF PLEA
*ILLEGAL SENTENCES
*ACTUALINNOCENCE
*I.N.S. DEPORTATION
I am a fonner Assistant State Attorney (Felony Division Chief), Assistant Public Defender (Lead Trial Attorney), and member of the
faculty at the University of Florida College of Law. I have devoted over 25 years to the teaching and praciice of criminal defense law,
and I am an author of a 1,250 page text on federal practice in the Eleventh Circuit The major thrust of my practice has been postconviction oriented. There is approximately 70 years of combined experience in my office. I do not believe you can find more
experienced representation in the State of Florida or elsewhere.

The hiring ofa lawyer is an importanl decision Ihal should I10l be based solely em ad~. Before you decide. ask us 10 Sflld you fi'cc ~ncn infonnation aboul our qlllllifiClllions.

____________

~--21---____:'-----------

- - : - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - : . . - . . , . - -

_

Membenhip Drive
ChccJc it out. For the next six months., until Jan. 31, 2004, Florida Prisoners' Legal Aid Organization, Inc. (FPLAO) is engaging in
a drive to increase memberships. During that period we hope to gain 1,000 new members. To do that your help is needed. Those who
help will not only be helping the organization togrow and become more effective. but will also be benefiting themselves.
Here's how it will work: ,For every person who gets three people to become ,an FPLAO member between now and Jan. 31 a,
whether prisoners or free citizens, that person will receive either a free one-year membership, or if they are already a'member, then
their membership will be extended for a year with no dues owed. This is a great and easy way to either become a member of FPLAO
or. to get a1iee membership extension. All members receive ~ organization's news magazine Florida Prison Legal Penpectives, of
course.
You don't have to stop at getting three new members. Ifyou get six people to join, your membership dues will be covered for two
years; get nine to join and you will not have to pay any membership dues for three years being a member of Florida's largest and most
effective organization that works to help Florida prisoners and their families and loved ones. Don't delay; start signing up new
members today!
.
Simply have new members complete the below membership fonn, putting your name on the "spo~sored by" line so you get credit
for signing them up, and have them send in the f~~ with their indicated membership dues. We'll let you know every time three new
people sign up that you sponsored Prisoners: Been hesitating to become an FPLAO member because your fUnds are tight, but want to
receive FPLP? You can't get it any easier than this. Ifyou aren't interested, teU someone else about it Let's build up FPLAO!
Yes, I want to become a member of Florida Prisonen' Legal Aid Org.
1. Check type membenhip:
o $ I S per year Family member/friend/individual
o S9 per year Prisoner

3.. Sponsored by (name & DC##)

1. Please Print:

Name:
Address:

City:

_
_
,State_ _Zip,

4. Send this completed form plus

indicated yearly membership
dues made payable to:
Florida Prisoners' Legal Aid Org. Inc.

_

Membenhlp'Dept

PO BOx 660-387
·Chuluota. FL32766
Yes, I wantlo become a member of Florida Prlsonen' Legal Aid Org.
1. Check type membenblp:
3. Sponsored by (name & DC##)
o SIS per year Family member/friend/individual
.
o S9 per year Prisoner
2. Please Print:
Name:
Address:,

Clty:,

_
~1,

_

,State_ _Zip.

---:

4. Send this completed form plus
Indicated yearly membership
dues made Payable to:
.
Florida Prisoners' Legal Aid Org. Inc.
Membenhip Dept.

.

POBox 660-387
Chuluota, FL 32766
Yes, I want to become a member of Florida Prisonen' Legal Aid Org.
1. Check type membenhlp: ,
3•.Sponsored by (name & DC#)
o SIS per year Family member/friend/individual
.
_
c S9 per year Prisoner

.

2. Please Print:
Name:,
Address:,

City:

_
_

-:--State

Zip.

4. Send this completed fonn plus

_

indicated yearly membership
dues made payable to:
Florida Prisoners' Legal Aid Org. Inc.

Membership Dept
PO Box 660-387
Chuluota. FL 32766

---------;.....-..-----22----

_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - -

Judicial Alert!!!
A recent ruling in the Second Judicial Circuit
Court for Leon County has created a" major shift in the
traditional jurisprudence with regard to filing petitions for
writ of mandamus challenging disciplin~ actions within
the DOC.
On August 19, ·2003, Circuit Judge Charles A.
Francis issued an order dismissing a petition for writ of
mandamus filed by state prisoner Peter Babala in case'
number 2003-CA-1409. The landmark order terminates
the long-standing home venue privilege enjoyed by the
Florida Department of Corrections.
In reaching this conclusion, Judge Francis
construed the Florida Supreme Court's opinion in Schmidt
v. Crusoe, 28 FIa.L.Weekly S 367 (Fla. 5/1103) as the
controlling authority for his premise that petitions
challenging the loss of gain time in disciplinary
proceedings must be filed in the county where the·
petitioner was convicted.
The Schmidt decision resolved the much debated
question of whether the provisions of the prisoner
Indigency Statute found in section 57.085, Fia. Stat was
applicable to quasi-judicial disciplinary proceedings
where the loss of gain time directly affects the prisoner's
sentence. The Supreme Court held that this type of action
was a collateral criminal proceeding to the judgment and
sentence, which resulted in the petitioner's incarceration.
Thus, section 57.085 was not applicable.
In the case above, Judge Francis mterpreted the
supreme court's decision to require Florida prisoners to
file their mandamus actions challenging the loss of gain in
disciplinary proceedings in the county of "their judgment
and conviction.
All Florida prisoners need to be mindful of this
potential Catch-22. In Babala's case, the judge issued the
order dismissing his mandamus action after. the time
period for refiling in his home ~unty had expired. This is
significant as Babala is now procedurally barred from
refiling. A motion for rehearing has been filed. asking the
court to reconsider its decision to dismiss in lieu of
transferring the action under rule 1.060, Fla. R. Civ. P. To
deny Babala the opportunity to seek judicial review .of the
disciplinary action against him would be arbitrary and
capricious.
To add to this legal quagmire, the Secon" DCA
recently issued an en banc decision on the home venue
privilege that is diametrically opposed to the circuit
When preparing to file your
court's ruling above,
mandamus action it would be wise to fully research the
law in your district to see what the proper filing procedure
is for your case. "Undoubtedly, this will be placed on the
supreme courts' aocket for defmitive resolution. But until
then, it's a crapshoot.

_

[Note: The 2d DCA case referred to above is Stovall v.
Cooper, Case No. 2D02-4606 (8/27/03). It has not
appeared in the FLW as of this writing.] •

Phone Information
Needed
Recently FPLAO staff has received some letters
stating that family members of prisoners are being
contacted by MCI or local phone companies requiring
them to make advance deposits to continue receiving
collect phone calls from Florida state prisoners. If you or
your family has received such a letter from MCI or a local
phone company, FPLAO would like a photocopy of that
letter. Please send only a copy of the letter that does not
have to be returned. If FPLAO can establish that MCI or
local phone companies (subcontracted to MCI) are
requiring such advance deposits, we will file an
administrative complaint with the Fla. Public Service
Commission (PSC). Such advance deposits have been
previously prohibited by the PSC. Please send any copies
of deposit-requiring letters to:

FPLAO,Inc.
FAIR Campaign
PO Box 660-387
Chuluota, FI 32766 •

Where's My Mail?
Fairly often FPLAO staff receive letters from
prisoners complaining that they are having problems with
the mail at their institutions. The alleged problems may
be ,with incoming or outgoing mail not being received" or
sent, or with not receiving publications or receiving them
late, or with mail simply disappearing, or requests or
grievances to prison officials never being responded to,
etc. Occasionally. when several letters are received from
the same institution making similar complaints, FPLAO
staff will contact the institution mailroom or other officials
to try to straighten out the problem for prisoners.
Sometimes we can correct the problem, and sometimes we
just get blown off ~ claims there is no p~biem, or if a
problem exists itS with the" post office. Sometimes the
staff has to go to the FDOC central office or other officials
to get a problem resolved with mail issues.
Recently we received a copy of an email from a
vigilent FPLAO member (Thanks) concerning an
institution's mailroom earlier this year that exhibits just
how bad mail problems can get sometimes. It's printed
verbatim below. The email below was sent by an FQOC
employee, conducting an audit on the mailroom at Martin
Corr. Inst. to an FDOC employee at the FDOC Region IV
office on Jan. 29, 2003:

23 - - - -

_

------------~- FLORIDA PRISON LEGAL

On January 28, 2003, l Pat Lindsay upon request from
Pele Defosses wenl 10 Ihe mailroom 01 Martin C.L to
perform an audit. While Ihere I observed the following
ilems thaI were not in compliance with the DC rules.

Perspectives - - - - - - - - - - - - - -

Unconventional Wisdom:
Slash Prisoner Education
by Linda Hanson

1. Mail is not being dislributed in the 48-hour timeframe.
2. Inmate request are not answered in 10 days.
3. Magazines are not handled in 15 days.
4. Inmatemail is notforwarded in 10 days.
5. Inmate mail that contains contraband is not being
returned to sender in a timely manner.
6. Inmates are not being notified when mail is rejected
The mailroom was no organization [sic] at all. There·
were at least 15 mail tubs on the floor located in different
spots with bits and pieces of mail. There was no way to
know what days the mail arrives because of the way the
tubs are just thrown in the mallroom. There were inmate
request placed in several different locations in the
mailroom. I pulled out tubs that contained inmate mail..
that was rejected that had not been wrote up with
postmarks ofAugust and September 2002. In these same
boxes was inmate mail that had been transfe"ed to other
institutions that had not been forwarded There are two
tubs that contain inmate-rejected mail that dates 2001. I
foUnd a tub of inmate request that date back to December
2002 that had request for all departments that had not
been forwarded to them. I found stamps that inmates had
sent to have mail sent home that dated June 2002 that had
not been sent. When I left Mr. Richard Barker, who is
filling in for the GSS, has already answered the largest
part of the inmate request. He is working on trying to
bring the mailroom in compliance.
Pat Lindsay, GSS
DesotoC.L
While many of the institutional mailrooms do a
good job of keeping up with what is after all a lot of mail,
the above examples are an extreme example of just how
bad things can get out of wack. Of course, prisoners or
their correspondents or magazine publishers would never
be informed by the FDOC that such problems occurred for
fear of lawsuits, and without such admission (or access to
such inside information as above) prisOners and their
correspondents would likely Dever be aware what
happened to their mail, or the post office or the prisoner I
mail sender I publisher would be blamed by FDOC staff to
cover up the problem. We muSt all remain vigilant to such
problems and protective ofour First Amendment rights.
FPLA9 will continue to help with these problems
where it can. •

24 - - - - - - - - - - - - -

_

- - - - - - - - - - - - - - FLORIDAPRISO~LEGAL

Perspectives - - - - - - - - - - - - - _

Education programs have been proven to save the .
An anthology of thought-provoking articles by
investigative reporters, social commentators, scholars,
prison system money, too. A 2001 report found inmates
legal professionals and prisoners who are activists and
who get a GED are 8.7 percent less likely to reoffend
Inmates who get vocational diplomas are 14.6 percent less
journalists, this book makes convincing the connection
between incarceration and poverty, and is 8' convincing
likely. For every 2,000 inmates who earn GED's, Florida
indictment of the class aspect of America's criminal
taxpayers save SI.9-million a year by keePing them out of
prison. The savings was $3.2-million for vocational
justice / prison systems. Articles are included on issues
program graduates.
ranging from the inadequate resources provided to public
defenders, .the often ineffective and incompetent
Ivey claims prisons will not abandon their
educational programs, and said GED classes, for example,
representation ,in capital cases, the politics and profits of
prison privatization and prison slave labor, to prisoner
win continue. But they will offer fewer sections.
rape and abuse and medical neglect.
This writer is unsure what the .phrase "fewer
sections" actually means, but a flash survey shows that
The well written and documented stories in Prison
many prisons throughout Florida have absolutely no , Nation .provide a compendium of the "rest-of-the-story"
educational programs. Walton, Zephyrhills, and Lawty
behind our country's prison-industrial complex that most
Americans know little or nothing about.
are only a few of many institutions statewide that have
terminated education programs.
And for the few
The articles' authors, many recognized as
authorities 'on the subject, including Stephen Bright,' Naom
institutiods that continue to offer education programs,
Chomsky, Nell Bernstein, Christian Parenti, Willie
their classrooms will undoubtedly resemble a mosh pit.
Wisely, Mumia Abu-Jumal, and (FPLP's. own) Bob Posey,
Wooley pointed to the state class-size amendment,
don't pull any punches with their hard-hittin,g, gritty, and
passed by voters who believe Florida's school children
can't learn with more than 25 students in a class. "Can' sometimes shocking reports.
you imagine having 45 or 50 inmates in a class?" he asked
. This book will appeal to prison activists,
professionals and students .of law and criminology,
[Sources: Miami Herald, 8/30/03; St. Petersburg Times,
prisoners and their families, and anyone else concerned
913/03] •
about the direction our country is going in, the growing
separation between the haves and the have-nots, and the
use of ilnprisonment and ostracism for social control. The
- Book Review - ,
images generated by this book will last long after the last
page is turned. •

PRISONNATION: The Warehousing ofAmerica's
Poor. Tara Berival and Paul Wright, Editors.
Routledge. 2003. sof/cover. 264 pages. $19.95 + $5
shipping. Orderfrom: Prison Legal News, 2400 NW
8(1" St. #148, Seattle. WA 98117.
Review by Sherri Johnson

Every once in awhile a book comes along that
demands to be read - Prison Nation is one ofthose books.
With more than 2 million people now incarcerated in
America's prisons and jails, one in every 143 U.S.
residents, and with the rate of imprisonment steadily
escalating, no longer can a blind eye be turned on the
impact such mass incarceration is having on the very
fabric ofour nation. This important book, in more than 40
essays arranged in seven chapters, looks beyond the
numbers to the reasons behind and effects of America's
race to incarcerate more of its own citizens than any other
country in the world. frison Na/ion explores the political
factors underlying the imprisonment trend, the cost to our
society - especially to the poor, the profits being made by
the greedy, the often hom'ble and chilling conditions
behind the jail walls and prison fences, and why the courts
are unwilling and often helpless to prevent such
.conditions.

Now AVAILABLEI
PrIsOn 'NatIon Is Prtson legal News' new book. In forty
one chapters by over two dozen
social a1tics, academics, InvesU-

gatlve

reporters

and prisoners,

PrIson Nation mvers many of
the Important Issues related to
how over 2 mIlDon peoPle are
Imprtsoned In the United States
.at any given .Ume and how they
, are treated whDe In 0JSt:0dy.
MAD atraordbwy coIIecdoa or
essays by some of·our most astute
observers of the AmerlCllD prisoa
I)'lltem." Hawani Zinn, lWIhor of A

PeopIe:r History ofthe UniJedSttrIes.
M. . . . .

&prbIgboolr, btfa&IDg tIgiIIer

ane fI tbe most Impoitaat wmc by

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2400 NW lOh St. #148
5ealIIe, WA 98117 Or order with a \lisa
or MasterCard by calDng206-781-6524

25-~~~~~~~~_

- - - - - - - - - - - - - - FLORIDA PRISON LEGAL Perspectives - - - - - - - - - : - - - - - - -

CA - During early Sept., the Federal
Ninth Circuit Court of Appeals in
San Francisco overturned 100 death
sentences in Arizona, Montana, and
Idaho because they were imposed by
judges, not juries. The court relied
on a 2002 US Supreme Court ruling
in commuting the sentences to life in
prison. When the Supreme Court
ruled it did not specify whether its
decision applied to prisoners already
on death row, but the Ninth Circuit
appeals court held the 2002 decision
must be applied retroactively.
However, two other federal circuit
courts have made an opposite ruling.
The high court may now have to
declare whether its 2002 decision
apply·. retroactively.
should
Arizona's attorney general says his .
state will ask the Supreme Court to
review the Ninth Circuits' decision.
CUrrently, America has about 3,500
prisoners on death row. Last year 71
prisoners were executed nationwide.
As of Sept. 5, 53 prisoners had been
executed so far this year.
CT
Connecticut's . prison
population, has grown from 4,800 in
1982 to 19,500 in 2003. Faced with
a budget crunch, the state has
reduced drug' penalties for nonviolent drug offenders to divert them
to treatment instead of inCarceration,'
which is seen as a more effective and
cost-saving approach. CT State Rep.
Mike Lawler, co-chair of the House
Judiciary Committee, noted, "We
now spend more on our prisons than
our colleges."
GA - State officials are considering
releasing sick prison inmates whose
medical bills can become a burden to
taxpayers. With a prison population
of 47,000 and faced with budget cuts,
the Department of Corrections and
the Board of Pardons and Paroles are
working on ways to remove some
inmates,
particularly
nonviolent
offenders.

FL - Earlier this .year the Fla.
Department of Corrections began
moving younger prisoners out of the
general
population
at
Union
Correctional Institution (formerly
known as' The Rock) and transferring
in prisoners aged 50 or older from '
other prisons around the state.. Then,
in August, the FDOC began ~ing
the same at Zephyrhills Corr. Inst.,
with the age criteria for going there
being 60 or older. Both UCI and
ZCI have more extensive medical
facilities than average institutions, so
the moves may' be a cost saving
measure by concentrating elderly
prisoners closer to' medical care.
Already, in 2001, Florida had'
changed New River CI, located on
the grounds of the state mental
hospital at· Chattahoochee, into a
work camp for 378 able-bodied
prisoners mostly older than 50. As
of May 31, 2003, Florida had 7,636
prisoners 50 yrs. old or older, an
increase of 12% from the year
before.
[Sources:
AP repOrts; Lakeland
Ledger, 4/30103; FDOC records;
FPLAO members]

FL - Beginning Oct. 1, 2003, Florida
state prisoners at community work
release centers will no longer be
driven to or from their jobs by
permanent party prisoner drivers.
Starting that date it will be the
prisoners' responsibility to get to
their jobs,· classes, or training by
walking, bicycling, riding public
transportation, or getting a ride .with
a family member or employer. The
new policy was ~itiated by the FIa.
DOC following several major
accidents when prisoners were
driving other prisoners to or from
work. Some.of the prisoner drivers
did not have a valid driver license.
The .DOC
appealed to the
Legislature, which amended sec.
945.0913, Fla. Statutes, during this
year's session ,to prohibit prisoners
from transporting other prisoners on
work release to their jobs and
prohibit the DOC itself from
providing them transportation. There
is a provision for those totally unable
to obtain transportation, but it is
contingent on specific appropriations
from the Legislature.
Happy
pedaling, Guys.

.FL - During Aug. a Fort Lauderdale
man, Bruce Silverman, 39, appeared.
before Broward Circuit Judge
Stanton Kaplan seeking an early
release from his one-year probation
sentence for aggravated stalking of a
co-worker. Silverman told the judge
that he likes poppy seed bagels every
day but hasn't been able to eat them
for the .past 8 months for fear they
will give him a positive on his
routine drug tests.
Because he's
been forced to eat plain bagels for
months, he argued that his probation
should be cut short. Judge Kaplan
politely asked Silverman if he was
crazy and then told him and his
.attorneY to leave the courtroom.
[Source:
Day/ona Bch. News
Journal, 8115103]

FL - Continuing its trend of the past
decade, last year (FY 2001-02) the
Florida Parole Commission only
releasoo a few Florida parole-eligible
prisoners on parole while revoking
.an approximately equal number off
parole - mostly for petty technical
violations that did not amount· to a
crime. Less than one-half of one
percent of the 26,299 prisoners
released from Florida prisons last
year, or 62 people, were released on
parole. During the same period, 87
parolees had their parole revoked and
returned to prison (8 for
committing a new crime, 79 for
technical violations).

were

26---------------

- - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - -

DutuJ~
May, former
FL
televangelist-turned
pizza
deliveryman, George Crossley, 62,
who was convicted five years ago in
a failed murder-for-hire plot, was
rearrested on a probation violation
concerning a dispute with a c0worker over an ink pen. Allegedly,
Crossley told the co-worker he
would kill him, which was reported
to the police. Crossley was fU'ed
from his job and was held in jail
without bail.
[Source:
Daytona Bch. News
Journal,.5/1 9/03]

facility for girls. State officials have
given the facility 60 days to overhaul
their protocol for dealing with unruly
inmates.
In one incident, Serai
Moreland punched one young girl in
the face as they struggled. More than
two dozen times between April 2000
and February 2003 workers have
been accused ofusing their authority
to cross the sexual abuse line,'
according the Florida Juvenile
Justice records. Since February IS
workers have been disciplined and
.two criminally charged for sexual
offenses.

FL - W.O. Childers, who once
controlled politics in Northwest
Florida, ,was sentenced to 3 %-years
in prison during May. Childers, a
former dean of the Florida Senate,
was convicted on Sunshine Law
violations earlier this year after he
had joined the Escambia County
Commission and became embroiled
in charges of corruption and scandal..
Childers will have I year of
'probation to do after serving his
prison time, 250 hours of community
service, and have to pay prosecution
costs ofupwards to $30,000.
[Source: Pensacola News Journal,
5/19/03]

FL - An autopsy. report said that
Ruth Hubbs, who died May 16 at the
Leon County Jail, was killed by an
overdose of prescription drugs likely
administered by the jail's infmnary.
She is one of three people to die in
the Leon County jail since March.
Prison Health Services, which has
been under scrutiny since the deaths,
has more than . 1,000 lawsuits
pending against it.

FL - A Fort La'\derdale judge has
denied a request from a drug
offender dying of AIDS to be
released early from jail to spend his
last months with his family. . Jean
Felix, 4I, was sent to jail until Sept.
5 for violating probation in a drug
possession case. But jail doctors say
he will die before his sentence
expires. Medical experts testified
before Judge Cheryl Aleman that
Felix has a very short time to live
and that the humane thing to do
would be to send him home to his
family. Judge Aleman denied that
request.
FL - Staff members at the Florida
Institute for Girls' are using force and
restraints too quickly and too often,
according to a recent review of the
only
maximum-security
state's

_

television, but under a new
programming change called the
"Correctional Learning Network,"
by
Corrections
initiated
Commissioner
Devon
Brown,
prisoners are limited to watching
mostly educational TV. Of the eight
hours of television available a day,
six hours are devoted to instructional
shows about hepatiti~ HIV, AIDS,
and fmding employment, and
documentaries. The other two hours
are limited to news and sports shows.
"It's a brilliant idea," said Richard
Moran, a criminologist and sociology
professor at Mt. Holyoke College in
Massachusetts. "For most prisoners,
their intellectual sense has been
neglected. If they learn to think
more deeply and learn to be more
culturally aware, that is an excellent
thing." New Jersey's systemwide
approach is unique. Maryland and
Ohio have educational programming
on a smaller scale and the Co. jail in
Hillsborough County, Fla., bas only
allowed
prisoners
to
watch
educational TV for eight years.

IL - During March a coalition of

criminal defendants represented by
the People's Law Office of Chicago,
petitioned that all Cook County
judges .be disqualified from hearing
the SO pending cases that allege that
Chicago Police Commander· Jon
Burge and his officers routinely
tortured confessions out of suspects.
The petition argued that of the 61
judges assigned to the county's
felony courts, .. 8 had material
involvement in the torture cases.
Forty-one of the 61 judges are former'
prosecutors. Michael Deutch of the
People's Law Office said no
courtroom in the county is free of the
. prejudice inflicted by police torture
practices.
[Source: National Law Journal,
3/3/03]

NY - Starting August 2003, all
iDeals consumed by prisoners will be
prepared at the Oneida Correctional
facility and then sent to individual
prisons around the state. Officials
say meals made at individual prisons
cost 14 cents more a day to produce.
The new arrangement is expected to
save taxpayers more than $3 million
annually.

vr -

Vermont prisoners being held
in Virginia to ease overcrowding are
likely to be moved this fall. The
Vermont Corrections Department
said it has received lower bids from
private companies in other states to
house the prisoners.
The VT
Legislature ordered prison officials
to reduce the budget for out-of-state
prisoners up to $200,000.•

NJ - For the past year, since Sept.
'02, state prisoners in New Jersey
haven't been watching sit-coms, soap
operas, or trashy, violent shows like
Jerry Springer. Now the NJ prison
population, all 27,000, can still watch

27 - - -

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- - - - - - - - - - - - - - FLORIDA PRISON LEGAL

Perspectives - - - - - - - - - - - - - - -

David Wi'Collins, Attorney at Law
Former state prosecutor with more than 15 years ofcriminal law experience
"AV" rated by Martindale-Hubbell Bar Register ofPreeminent Lawyers.

Yo", voice lit TtI1Wrtmee repmetrltllg prisoners lit till flretU o/pDlktmvldlD" u&f
• Appeals
.3.800 motions
.3.850 motions
.State &. Federal Habeas Corpus
.Writs of Mandamus
• Parole Hearings
.Clemency

.Plea Baigain Rights
.
.Sentencing &. Scoresheet Errors
.Green, Tripp, Karchesky. Heggs cases
.lail time Credit Issues
.Oaintlme Eligibility Issues
.Habitualization Issues .
.Probation Revocation issues

.. DID YOU KNOW•• •Many cases contain sentencing and scoresheet errors that result in defendants
- serving extra time on their sentences. Often these errors can be corrected dec:ades after sentencing. Write
- for infonnalion about a low cost review of your sentencing papers. Let 10,000+ hours ofexperience in
.. sentencing and sc:oresheet errors go to work for you.

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P.O. Box 541
Monticello, FL 32345
(850) 997-8111
"The birlna ofa lawyer is an important decision that should not be based solely upon advatiscmalts.
. Before you decide, ask me to send you free wriUcn information about my qualifications and experience."

FLORIDA PRISONER'S LITIGATION MANUAL
Legal Information on Prison Discipline, Mandamus and Appellate Review

A MUST HAVE LEGAL GUIDE FOR ALL FLORIDA PRISONERS
"1 highly recommend theFPLM for any prisoner living under the FDOC."
Paul Hamwi, Certified Law Clerk
"OutstandingI The first comprehensive self-help legal guide for Florida prisoners."
Sherri Johnson, FPLAO
"An easy to understand, valuable and important book for Florida prisoners."

Oscar Hanson, FPLP

ORDER YOUR COPY NOW!
To order send, only $24.95, plus $3.95 S&H to FPLP, P.O.Box 660-387, C~uluota FL 32766
Softcover - 330 pages - 8 ~ x 11 - Published by Albert Publishing Co: - allow 4 - 6 weeks

28 - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - FLORIDA PRISON LE~

.Perspectives - - - - - - - - -

_

Mail Rule Cball~nge Update
On Aug. 14, 2003, Administrative Judge Michael
Ruff, of the Fla. Division of Administrative Hearings
(DOAH), dismissed FPLAO Chairman Teresa Bums"
Posey's fonnal rule challenge to Fla. Department of
Correction's mail rules implemented Dec. 5,2002. Judge
Ruff, who failed to rule on any of Ms. Bums Posey's
. motions, and relying on an untimely-filed Motion to
Dismiss filed by the Department, relied on an invalid legal
test to detennine that Bums Posey did not have standing to
challenge rules that restrict the amount and content of
routine, legal or privileged mail that she sends to prisoners
in various capacities. Judge Ruff, ignoring Bums Posey's
showing that non-prisoners have an established
constitutionally protected right to send mail to prisoners,
sided with the Department's position that the rules at issue
only impact the rights or privileges of prisoners. Judge
Ruff also ignored Bums Posey's repeated motions and
letters seeking authorization to allow her qualified
representative to appear on her behalf, thus violating
Florida Statutes and the DOAH's own rules.
Ms. Bums Posey filed an appeal of the dismissal with
the First District Court of Appeal on Sept. 11,2003. Burns
v. DOC, DOAH Case No. 02-4604RP; OCA Case No.
1003-3894 (2003).
'
The rules at issue in this case involves restrictions on
the amount and content of mail that may be sent to
prisoners by family members and friends, and by
attorneys/legal
aid
organizations
and
media
representative~. The rules include a prohibition on more
than 5 pages of general reading or entertainment
materials, and tail to establish a legally sufficient mail
rejection review process for non-prisoners.
This case will continue to be updated in FPLP as it
proceeds.
[Editor's Note: In FPLP Vol. 9, Iss. 2, an update to t~e
above case was provided that noted only 15 prisoners out
of the 75,000 prison population filed written objections to
the FDOC concerning the rules at issue in the above case.
Subsequently, two prisoners wrote asserting that. they also
had filed written objections but did not appear on the
FPLP list. A review of the letters and documents
provided by those prisoners revealed they had filed
objections to a different set of legal mail rules, adopted
and implemented at a different time, involving prisoners'
outgoing \egal mail. The list published in FPLP was,
sadly, accurate.
. Florida prisoners are reminded that they may file
written objections to any rule proposed by the FDOC. Sec.
120.81 (3)(b), Florida Statutes. They may also file formal
Petitions to Adopt, Amend or Repeal Rules with the
FDOC. Sees. 120.81 (3)(a) and \20.54(7), Florida
Statutes. But they may not challenge proposed or

existing FDOC rules in a proceeding before the Division
of Administrative Hearings (DOAH) as non-prisoners
may. Sec. 120.81 (3)(a), Florida Statutes. The proper
vehicle for prisoners to use to challenge proposed or
existing rules or denials of their Petitions to Adopt,
Amend or Repeal Rules is with a Petition for Declaratory
. Judgment filed in the circuit court. Sec. 120.73, Florida
.Statutes.... bp]-

* Success *
Modular Office Obtained
by Teresa Bums Posey

In the last two issues of FPLP, donations were
requested from FPLAO members and supporters to
allow a modular-type office building to be purchased
to provide more office space for volunteers in the
·Orlando area to .help work on FPLP and.FPLAO
projectS. We are very pleased to announce that such
a' building has been obtained by FPLAO. Wltile only
approximately $1,000 in' donations have been
received so far, we were able to locate a larger than
expected office building owned by an individual
who wished to sell it, and FPLAO member Charles
. Morgan Kindly loaned us the .remaining money
needed to purchase the building. Everyone who
made a donation for the building is thanked very
much, as is Charles. We still need donations to pay
off the loan, any amount will help, but we'll be able
to get the new office set-up and open to volunteers
much sooner than expected now. This new office
space is going to make a lot ofdifference. We expect
to have it open in the next month or so and invite
anyone in the Orlando area' who wishes to help out
to contact us. Working together, weare going to
make a difference. Again, Thank you' to those who
made this possible. -

Past Perspectives...
From the J902 DOC Annual Report
The annual report for 1902 included an
expenditure of $4,000 for bloodhounds.
According to the report: "These dogs bring to
bear a two fold benefit. They are trained each
week under the full knowledge of the prisoners
and this tends to deter prisoners from making an
effort· to escape. Recaptures made with the
assistance of these bloodhounds has made them
an indispcmsable acquisition to our work."

29 - - - - - - - -

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- - - - - - - - - - . . . : . . . - - - flORIDA

PRISON~GAL' Perspectives - - - - - - - -

Flashback: Florida Prisons Yesteryear
by Oscar Hanson
Following the article on Lock Up Hotel thai described
the current state of affairs for the Department of
Corrections, J decided to look into the history of the
department. What I found was rather interesting: Florida's
tirst prison did not appear until after the Civil War. In
1868, Governor Harrison Reed obtained the U.S. Arsenal
property at Chattahoochee near Tallahassee and converted
it i.nto a prison; it remained a prison· for almost a decade.
That same year, the prison received its first prisoner,
Calvin Williams, who had been convicted oT larceny and
sentenced to 12 months incarceration.
Chattahoochee opened with 14 officers and nine inmates.
Six months later the population had swelled to 42
prisoners. Those prisoners shared the same space with the
Insane. The first commander of the prison system held the
rank of colonel and received $3 per day, a lieutenant
earned $2 per day, sergeants $12 per month and a "private
of the guard" $10 per month. The state provided.
em~loyees with living quarters, rations, clothing and
equipment. In 1876, the Florida State Hospital acquired
Chattahoochee and patients started making mattresses,
giving it the nickname, "the mattress factory."
During this period the people elected George Drew as
governor to preside over a state heavily in debt from Civil
War Reconstruction. Drew determined that prisoners could
become an economic asset for the state, and successfully
pushed for a prisoner labor lease system.
On December I, 1900, twenty-two years after Calvin
Williams arrived to serve his sentence, the population of
prisoners had grown to 778 divided into 13 labor camps.
Seven camps mined phosphate and six manufactured naval
products such as turpentine. Prisoners ate bacon, meal,
flour, grits, rice, dried beans, peas, syrup, and in the
summer, fresh beef onCe a week. In winter they ate fresh
pork once a week, a:. well as tish. At each camp the local
manager cultivated one to three acres ofgarden vegetables.
All cells had water, and i~ates were required to bathe and
put on .clean clothes every Sunday morning.
. The system began leasing prisoners to private contractors
who clothed and cared for them in exchange for their
labor. In some cases· the conditions turned harsh. The
brutal side of the leasing system led to its downfall. In
1921, Martin Tabert was beaten to death while on the lease
program. Tabert was arrested for riding a train without a
ticket and because he could not pay the· $25 tine, he was
placed in the custody of Leon County Sheriff J.R. Jones.
Tabert had wired for the money and while he awaited its
arrival, Jones leased him as a laborer to the Putnam
Lumber Company where Tabert died. The sheriff returned
Tabert's payment unclaimed. The case attracted
nationwide attention and set the stage for abolishing the
convict lease system.·
.
Prior to these eve~ts, Florida began building its oldest
and largest correctional institution. The new State Prison
Farm occupied an 18, OOQ-acre tract. purchased for $5.00
an acre. In 1912, the first bUildings'served as temporary
stockades to house intirm inmates who could not be leased
to private businesses. In early 1919, the State Prison Farm

_

property consisted of 4,000 acres under cultivation
extensive pastures, a garment factory, a shoe factory which
made 10 pairs of shoes a day, and 40 prison guards who
were paid $35 per month and room and board.
In 1917 the Legislature created the' State Road
Department and State Convict Road Force. Inmates
continued to work on roads' in chain gangs. Florida
discontinued the convict-leasing program in 1923 and as a
result. the number of convicts in prison increased. In 1927
prison industries also expanded, opening a shirt factory
and an auto tag plant. The main housing unit (called "The
Rock") was l)Uilt in 1928, and the guards there worked 12hour days, in return for $720 yearly plus quarters and
meals.
During the twenties and t~irties, the State Prison Farm
grew rapidly under the direction of Superintendent lS.
Blitch. He was recognized by the Legislature as being an
outstanding Superintendent because· he reduced expenses
~y 50 percent, even though the prison population had
Increased 100 percent. This explosion in numbers now
required compliance to a strict regimen. Discipline
.included the use of leg-irons, shotgun squads, chain gangs
?nd sweatboxes. Sweatboxes were Small buildings where
lIl~ates were placed to stand for hours, even days, often
With two of three others. Another common punishment
device, called an AmeriCan Collar, pressed a metal thong
against the prisoner's neck.
Hanging carried out Captial punishment. Prisoners were
hanged in the county seats, usually in the y!U'd of the
courthouse. Contrary to how it is depicted in the movies
hanging ~ a complex procedure. An error in determinin~
the condemned person's weight, or the use of an incorrect
length of rope, could result in decapitation. Sometimes the
public sold souvenirs and cotton candy at executtons.
Many families attended these executions and according to
one reporter, the whole thing took on a festival-like
quality. However, the Legislature found it inappropriate.
The electric chair was seen as a humane alternative to the
gallows and in 1922 lawmakers approved its use. One year
later, state prisoners, ironically, built Florida's electric
chair from oak. Condemned murderer Frank Johnson
becl!Jlle the firstman to die by electrocution in 1924 in the
execution chamber at Raiford.
In the early twenties' approximately 40 prison guards
worked at Raiford, each earning $35 per month plus board.
The inmate population was 485. By 1932, Raiford's prison
population numbered more that 2,000 men and women.
There were 85 employees on the payroll, including
officials, prison guards, matrons and other employees.
Florida expanded its prison system by building Glades
Correctional Institution in Belle Glade.
That same year Leonard Chapman became Raiford's
new warden and he qUickly discovered things weren't as
orderly'as they appeared. He served 25 ye8fs at Raiford,
imple":lenting a strong philosophy about good health,
educatIon, work habits and positive contact with the
community. He prohibited the use of the word "convict,"
encouraging "inmate" instead. He offered prisoners school
classes, vocational programs, and even replaced old solid
barriers with chain link fences so prisoners would see the
world beyond. To be continued....
[Source: 1999-2000 DOC Archival Study)

30---

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- - - - - - - - - - - - FLORIDA PRISON LEGAL PerSpectives

•

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,

Florida Prisoners' Legal Aid Organization Inc.

I

BECOME A MEMBER
YES ! I wish to become a member of Florida
Prisoners' Legal Aid Organization, Inc.
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er Please make aU c:becIcs or money orders payable to: Florida ~ers' Legal Aid Orpnizadon. Inc. Please complete the above form and send it
with the indicated mcmbcrsbfp dues or subscription amount to: Floridlz PrbDlUU'S •Legal Aid OrganlztIIIolllnc•• P.O. Box 660-387. ChtdIlOla.; FL
32766. For family membcrsor loved ODeS ofFlorida prisoners who IInl unable to afford the basic ~p dues, any contribution is acceptable
for membership. New, unused , US postage stamps are acceptable fiom prisoners for membership dues. Mcmbcrsbfps run one year.

-, :_,~,~/SW$~~N\~~;':';:,'""
,

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Past Perspectives...

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31
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From the 1900 DOC Annual Report:
"Punishments are inflicted with a leather stnq);
two inches wide and about twenty inches long
for disobedie~ce, quarreling,figbting, -using
profane or obscene language...usually three to
fifteen licks according to the offense."

....
, """$

:

MClNewsOash
On August 1'0, 2003, FPLAO director
Linda Hanson sent DOC Secretary James Crosby
a formal request for him to terminate the contract
with MCI in .light of the recent fraud and
. l'8Cketeering charges pending against . the
cominunicatioQS giQllt. The letter cIted Article
VI, Section A of" the lviCI contract, which
allthorizes the termination of the contract at any
time. Linda reminded- the DOC Secretary of the
multiple instances of overcharging by Mel that
resulted in the "payment of" over $2 million
dollars in fines and restitution to families and
"friends,of-;Plorid8 prisoners. Currently, MCI has
-a moriopoly on the prison contract that has
prisoners' family and friends in a financial
stranglehold.' FPLAO's F.A.I.R. campaign is
moving forward in an effort to bring reasonable
ra~ back to the families and friends of Florida's
."Jprisoners.

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PRISON LEGAL-Ivc.~~ ';';
SUBMISSION OF MATERIAL TO
FPLP
Because of the IlIJ8C volume of mail being
received. fincmcilll considerations.. and Ihc
inability to provide individual legnJ assistance,
members should not send copies of legal
documents of pendi.ns or potential cases to
FPLP without having rust conl4CtCd the stl1tT
and receiving directions to send same. Neilhcr
FPLP. nor its staff, are responsible for any
unsoliciled material sent
Members. are requested to <:onbnUC sending
neWs information, newspaper clippings (please
include name of paper lUtd date).
memorandums. photocopies of fmal decisions

in unpublished cases, and potential articles for
publication. Please send only copies of such
material that do not have to be returned. FPLP
depends on YOU. its readers and members to
keep informed. Thank you for .)'Cur
cooperation and participation in helping to get
the news Gut Your etTorts are greatly
appreciated.

:<

,:."!

PIUOIt UpI Nnn is II J61DP mcmtJdy magDZiDe wbicb bas
beel1 publisbd Iincc 19C1O. h is edited by Wasb.ingtcn state
priscncr Paul Wri8bL Each bsue is packccl with SlmUMries
and maalysis rccatt court ecisiaDs &am anxmd cite CIOUtI1Iy
. dealing wi1h pjscmcr rigllls ad writtcD hID a priscnc:r
perspective. nio mngazinc often cmrics anidcs &om
attonrcys sMDg lzow.Io litipliora lIdvisc. Also btdalW in
CICh issue 3J'e IlCWI lVtida cfc:Alift8 with prisoIHeI4%ed
ltrUJBIo nnd aetiYism &om
ad QlClUld the wodd.
AnmmI suhsc:riptioD rateS are SI8 (or priscmas. 1f)'Oll cu'.
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For non-lncarccmted indMduals. Ute· yearly subsc:riplioa
me is S25. IDslituIion3J or p:ofcssicmaI (dcmICyI. litmIrics,
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subscribe to PLN, CCl1tUtCt:
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that the mailing list can b~ updated:

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See PLNs Website at
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