FLORIDA PRISON LEGAL

ers~
VOLUME 10

ISSUE 5

ectives
ISSN# 1091-8094

The Show Must Go On:
Florida Prisoners Lose
Important Case
by Oscar Hanson
?re than 30 years ago, Florida prisoners challenged
M
federal court the adequacy of prison law libraries
pursuant to federal constitutional law. The case, Hooks v.
ttl

Moore, ultimately terminated in December 2000 when the
United States District Court approved a plan by the
Florida Department of Corrections. Once the dust settled,
the FDOC began dismantling prison law libraries
throughout the state, not withstanding the agreed upon
plan to maintain the law libraries in their pre-approval
condition. First, the FDOC began removing certain texts
from the shelves in concert with other significant policy
changes, including the removal of word processing
equipment purchased with funds from the Inmate Welfare
Trust Fund.
Shortly after implementation of the policy
regarding word processors, several prisoners filed an
action against the FDOC seeking to represent all persons
who, now, or in the future, will be incarcerated as inmates
within the FDOC who haye legal needs and who have no
means to acquire professional representation.
They ultimately claimed that they had been
deprived of their right of access to courts pursuant to
Article I, Section 21, of the Florida Constitution as a result
of the following actions of the FDOC: (1) removal of

FAMILIES ADVOCAlES I'lUSCNEllS

ON

I

THE

INSIDE

SEPT/OCT 2004

reference books and form pleadings from the state's prison
law libraries; (2) limitation of access to legal materials
through inter-library loans; (3) restriction on the hours and
means of access to prison law libraries and restrictions on
the use of those libraries for drafting legal pleadings and
legal mail; (4) elimination of access to computers, word
processors and typewriters for preparation of legal
pleadings and legal mail; (5) reduction on the availability
of inmate law clerks to assist prisoners; (6) undue
interference with inmates attempting to assist other
inmates with their legal proceedings; (7) limitation on the
storage of legal materials within an institution; and (8)
improper review of prisoners' legal mail and legal
documents designated for photocopying. The prisoners
sought declaratory and injunctive relief. The trial court
granted their motion for class certification.
The parties eventually filed cross-motions for
summary judgment' and memoranda of law, in which they
argued that there were no disputed issues as to material
facts, and that they were entitled to judgment in their favor
as a matter of law. They also filed an extensive "joint
stipulation of facts." Following a hearing, the trial court
.entered an order concluding that, based on the stipulated .
facts, the challenged actions of the FDOC did not violate
Article I, Section 21, of the Florida ConstitUtion. An
appeal to the First District Court of Appeal followed.
In summary, the First DCA held that Article I,
Section 21, of Florida Constitution (the "access-to-courts"
provision) does not require the. FDOC to provide more
affirmative assistance to inmates in the preparation and
filing of litigation papers than does the federal

Post Conviction Comer
Diseases Incubate Behind Bars
Resurrection of an Expired Sentence
The Closure of Tripp
Prison Credits in Relation to Split Sentences
Florida 3-Strike Law Constitutional
Notable Cases
,
Legislative Watch

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11
13
15

17
20
21
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Florida Prison Legal Perspectives

FIORIDA·PRISON LEGAl PERSPECTIVES
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,fPIAODIRECTORS
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Os~af A. Hanson, IiI,CLA

.··l..indll E. Hanson

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'Pl,tbtishet: I"~
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A$soCillW ~itor'

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IAQVISORY,.OARD
WiUiatn Vanl~oyck .' -Phillip Bagley
MichaelLainbrix
Susan Manning
Mark Sber.\y()od
Gene Salser
Eli?Jlb~th,Gteen
,Terry Va~
John Hudson
Mark Osterback
Anthony Stgllrt
EnriqueDiaz
Lil!dilGottieb'
. David:.Reutter .
'flcrida ~ners~ Lej¢. Aid OJIpiIiization, the.. P.O. 801 6600-1&7,
'CilmI\lota;:Jll,.' !J~7,66;,' ,Pllblishes : :FLb~A,PRJSON, tE(jiU;,
, ~J;ltSPEC11VES (pp1;.tl),:up ,(0. siXli",es II year. FPLP'isll l\onlliOfiJ.
pubUQIllonfQcuslng on 1JleFlorida prison and criminal jllStlee ~ .
..'PJ'l;P ,pl'Ov1lfl$0 \'ehl~e(or ·n~ infonnidiol), and I\ISO~ .atTeclPlg' .
,;priSQnersith~it;fan1IIli$,;DieJ$, 'loved ones, IIJId,tlie '&e!l'\'fIII' ,publlll·ol' '
. . Ftorid!J, 'Re!1Ii~on,of Crin\e and, reei~lim. 'maintenance of fiunlly" ties,.··
civil. rlsJtli. iDJpf!lVing COrididnfts of canfinemeni. promoiing skilled Court
~ror ptisomlrs,Wl.,promoling acc:cmnllibilityof prisco officials email
;~ FPLP ,is :lfesi8!!~ .10 llddres$.·FPLP'snob·anomey wlunleCt staff
.¢annot respond,to·lCClueslS for legal advice. ·Due to lite volume.o~ mal"'hal .
is ~ivcd lind \'OlunW stlllf limitlltions, all correspondence ibm is
,~YCd cuimCltbG'rcSponlfed to; :bul all, mail will receive fndividiial
.. ,attention. P~ission is gl1!IItedto Q:,rnt mlllerialuppearinj; in FPLP ~t
does nDI indicate it iscopyrighled provided ibid FPLP and My Indicated
,lWlhor are ilfentilicd in th~ l'qIrint and a copy of the pUbliearion in which
the malmal is publiSbed 1$ provided to lIie FPLP pUblisher. This
.,pqbliClllion)s 'nolmCl\llI ,to'ho ~substitulefur legal or otlter prolesslonlll <
lldid~.'The materil1\:in:FPLP s1ioiJldliot,be relied,upon lIS liutJtorillitivelind
may Not conmm sufficient infonnation deal with a legal problem. FPLP
Is ,lIIIIomBtically senl to all membm of FPLAO. Inc., a> a membership
,~efit Mlln!benhip ducs(or FPLAQ.lnc./ operale yearly and are S9for
pi:Wlners, $IS for family members and other private individuals. $l0for
attOmeys. andS60 for agencies, libraries. and instilutinns. Family membets
: 01 loved OIlC$ of prisoners who are unable 10 alford the lr.Jsic membmftip
.dlJl$ may receive membership for any size donation '!hey Clln alford.
PriSoners may pay membership dues willi new.unused postage stamps.
Prisoners on death row or'CM who cannol afford the membership dues
may n:qUl$1 a waim oflIie dullS. which we will grlIIlllIS resources pennit

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It requires that the FDOC provide
Constitution.
affirmative assistance as to all types of claims that might
be filed in Florida's courts (including those based on
federal law), rather than merely as ~o claims challenging
convictions, sentences or conditions of confinement, or
seeking to vindicate a fundamental constitutional right;
and that the FDOC's justification for its action or inaction
satisfY the strict-scrutiny test when such action or inaction
results in a significant impediment to inmate's access to
the courts. The Court further concluded that the trial court
applied the wrong test to determine that the prisoners were
not entitled to relief. Nevertheless, the trial court's
decision was upheld because that as a matter of law,
either individually or collectively, the actions complained
of do no constitute significant impediments to the
prisoners' right ofaccess to Florida courts.
Those prisoners interested in reading the details
and legal reasoning of this case may do so (for the time
being) at your local law library. But do so quickly,
because what is here today may be gone tomorrow. See:
Henderson \I. Crosby, 29 Fla.L.Weekly DI937 (Fla. I"
DCA 8/24/04).
[Note: FPLP has covered developments in this case from
the beginning. Past articles can be found in FPLP,
Volume 9, Iss. 4, pages 25-29; Vol. 10, Issue. 2, pages 57. If there are further developments, FPLP will carry
them.- editor] _

Report Faults Vermont Policies in
Prisoners' Deaths: Retaliation
Preceded FPLP Advisor's Suicide
by David M Reutter
n independent investigation into the deaths of seven
A
prisoners concluded that Vermont Department of
Corrections (VOOC) policies were partly to blame for
some of· the deaths. The deaths occurred between
November 25, 2002, and October 7, 2003. After the
suicide death of FPLP advisor James Quigley, the
Vermont Agency of Human Services retained Michael
Marks, a Vermont lawyer, and Philip McLaughlin, a
former New Hampshire attorney general, to address the
issues those deaths appeared to implicate. Those issues
included the provision of medical service, mental health
service, and the grievance process.
The VOOC can accommodate up to 1,000
prisoners, but is expected to reach 1,900 in the next three
years. The report found the VDOC system is rife with
communicatiop problems and is under "tremendous
stress" from budget cuts and the increased population.
The report examined in great depth the circumstances of
each prisoner's death and the conclusions to be drawn
from those facts. Recommendations for change were
included for administrative and legislative action. (See:

Florida Prison Legal Perspectives
FPLP, Volume 9, Issue 16, page 23, "Florida Prisoner's
Death in Vermont Sparks Legislative Investigation".)
James Quigley
The bulk of the investigative report addressed the
events that preceded the suicide death of FPLP advisor
James Quigley. On February 1I, 2001, after serving 21
years on a life sentence, Quigley was transferred, via
Interstate Prisoner Compact, from Florida prison to
VermonL That transfer was part of the terms of the terms
of a settlement in a lawsuit against officials of the Florida
Department of Corrections, alleging retaliation against
Quigley, and law clerks in general, for filing grievances
and lawsuits.
That transfer did not extinguish Quigley~s activist
spirit, for between September 13, 2001, and his departure
from NSCF on July 17,2003, he filed 36 grievances. His
vote against Superintendent Kathy Lanman's proposal to
buy flowers with canteen proceeds resulted in Quigley's
removal from the "inmate recreation committee" in June
2003.
On June 10, 2003, Quigley had a parole hearing
with the Florida Parole Commission, who established
parole would not be considered for another ten years.
Simultaneously, Northern State Correctional Facility
Deputy Superintendent received information from an
informant that Quigley had a "back-up plan" to parole.
Quigley was promptly placed in administrative
segregation as an escape risk. Five days later, the Deputy
searched Quigley's property and found maps of all
Vermont counties, which were cut from a local
newspaper. Also found were Florida maps the Deputy
learned Quigley had received a year earlier. While those
maps were not problematic then, they now constituted
support for the "back-up plan:'
The Deputy recommended Quigley be put in
SMU on open status. Lanman, however, noted that
Quigley is "a pain in the butt" who "likes to write tons of
grievances over petty issues:' Lanman disapproved the
recommendation, ordering the "legal paper pusher:'
Quigley to continue in ad seg until review in 15 days.
Lanman then took action to have the VDOC send Quigley
back to Florida.
Quigley appealed the ad seg decision. The appeal
officer, John Murphy, conc.luded the hearing record was
inadequate to support there was an escape risk because
there was improper reliance on a confidential informant
and consideration of material outside the record. On July
I, a new officer again concluded Quigley was an escape
risk.
While an appeal of that decision was pending,
Murphy suggested to Lanman that Quigley be transferred
to the SL Albans Facility, which is VDOC's most secure
prison, because he was considered an escape risk and he
had significant grievances with Lanman.

Under VDOC policy, ad seg decisions are to be
reviewed every 15' days, and if there is .no evidence to
support the decision the prisoner is to be returned to his
previous status. On July 17,2003, Ql;ligley received such
a review, which stated: "Facility has no new evidence to
present. Recommended remove from ad seg status,I I
Lanman approved that recommendation, but she overrode
Quigley's status to close custody, and approved a transfer
to St. Albans. Normally, transfers must be app~ved by
VDOC's Director of Classification. No such approval
was received here.
Upon arrival at SL Albans, Quigley was placed on
D-Wing. Prisoners in O-Wing occupy solitary cells and
they do not have access to standard items such as dental
floss of standard tooth brushes. Quigley did not have
access or standard writing implements with his full legal
file even though he had a pending post-conviction relief
motion. He was also denied access to outside recreation
or exercise.
Quigley described 0-Wing conditions as "the
worse I've ever seen." With 40 degree temperatures, his
cell window would not close, Quigley wrote his mother,
Claire Quigley, and said, "There is nothing. to do but
retreat under the covers and tremble because they won't
provide us adequate clothing of allow us to have our
own."
VDOC policy directs that Quigley's classification,
Close Management Level I, was designed to be a short
term of 30 days in duration. Quigley was on O-Wing for
82 days. During that period his regular descriptions were:
"quiet" and "no issues."
When a close management prisoner demonstrates
progress and movement towards self-risk management, he
is to be placed on, a "movement list," in order of priority,
for removal from 0- Wing.
Despite receiving no
disciplinary actions and being "quiet," Quigley was never
placed on the movement list. Instead, the 0-Wing
management team had an understanding that "Quigley
would stay in D-wing until a transfer to Florida" and "He
would stay there indefinitely regardless of his good
behavior."
On September II, John Murphy met with Quigley
regarding the accumulation of appeals questioning his 0wing placement and the confinement conditions. After
Murphy expressed to his supervisor that it was credible
Quigley's placement was retaliatory, the supervisor
ordered him to look into the reliability of the assertion
Quigley was an escape risk.
During that investigation, Murphy was told by
NSCF's Deputy Superintendent that, "The only reason
that guy [Quigley] is in ad seg is he pissed off the
superintendenL"
Lanman de~ied she was angry at
Quigley. Nevertheless, Murphy concluded there was
"more evidence Quigley was retaliated against than he
was an escape risk."
.
3

Florida Prison Legal Perspectives
Murphy's conclusion was part of an October 6
telephonic conference between various VDOC lawyers
and officials and lawyers acting on Quigley's behalf, who
agreed Quigley, would be removed from D-wing. This
decision was never communicated to Quigley.
In the early morning hours of October 7, Quigley
tied a bed sheet to a grate in the ceiling and hanged
himself. He died on the 118th day of confinement in
administrative segregation on close custody.
The investigation report concluded the system
failed in Quigley's case. The initial decision to remove
him from open population was justified. A reasonable
investigation, such as Murphy conducted in one day,
would have disclosed Quigley did not pose an unusual or
heightened risk of escape. His confinement to D-wing
was not justified. If the system had worked, Quigley
would have been removed from D-wing long before his
death.
"Distinguishing
which
individuals
were
consciously retaliating from those who were indifferent or
ineffective would not affect our ultimate conclusion:
Vermont's correctional system treated Mr. Quigley
differently because he filed grievances and objected to
instiMional practices. We can discern no good reason for
.the different treatment," said the report.
Superintendents Denoted
Following the release of the report from the
independent investigation in March 2004, the Vermont
DOC conducted its own investigation and in August 2004
the two prison superintendents involved in the retaliation
were reassigned to other state jobs. Kathleen Lanman,
who was in charge ofNorthern State Correctional Facility,
was reassigned to be a supervisor in the Morrisville office
of the Department of Children and Family Services.
Lanman had earned $58,593 as a prison superintendent;
her new job pays less and carries less rank.
.
Charles Hatin, who was the superintendent of
Northwest Correctional Facility in St. Albans, where
Quigley died, is on suspension and still discussing his next
position. Hatin has been a state employee since 1985 and
earned $56,700 as a prison superintendent. It is not
expected he will be placed in any supervisory position
over prisoners.
Death Creates Opportunity
For Changes
The investigative reports authors did a
commendable job of establishing the facts and conclusions
in an impartial manner. They recommended changes on
issues related to these prisoner's deaths.
In the mental health area, there needs to be a
quality assessment system to grade the services rendered
to prisoners. The grievance procedure should assure a
prisoner's complaint is acted upon or rejec;:ted in a timely
manner. The authors also suggested that the state of
4

VDOC provide more funding for the Prisoner's Rights
Office of the Vermont Defender General because it may
provide quicker and more reliable adjustment of VDOC
errors.
·In his last letter, Quigley said, "They're all full of
crap. Spin is everything to these prison officials. It's all a
front." The report's authors agreed when they lambasted
VDOC's written reports into the deaths of Bessette,
Quigley, Palmer, and LaBounty. Those reports did not
address in depth the circumstances surrounding the deaths,
and they provide no basis for assessing or improving
VDOC practices. Instead, they emphasize facts that
would be favorable to the VDOC in subsequent litigation
while ignoring potential errors that warrant correction.
On August to, 2004, a panel of Vermont state
legislators heard firsthand from prisoners about problems
with the prison system. The committee is charged with
identifying problems in the system and recom~ending
changes in the law to remedy the problems. One primary
problem that six prisoners, male and female, raised was
finding housing on the outside when released from prison.
The prisoners' concerns were supported by Vermont DOC
Commissioner Steve Gold. Lawmakers promised nothing,
but expressed that changes are needed in several areas
concerning prisoners and the prison system. It's just a
damn shame it took so many deaths to reach this point.
[Note: FPLP Editor Bob Posey contributed to this article.]
[Sources: "Investigative Report in the Deaths of Seven
Vermont Inmates and Related Issues," 3/04; Brattleboro
Reformer; New York Times,' St. Albans Messenger,
8/11104.]. .

Speak To Me:
Delayed Miranda Warnings
a rare decision by the United States Supreme Court, a
Igivenpolice
interrogation tactic designed to induce suspects to
incriminating statements after purposely delaying
Miranda warnings has been declared unconstitutional.
The tactic, taught in police training courses, has
been growing in popularity. The 5-4 ruling against the
strategy was apparently the product. of a prolonged .
struggle inside the court. This case and another Miranda
case announced simultaneously by a 5-4 vote in favor of
the prosecution were the oldest undecided cases on the
docket. In neither case did the five justices in the majority
fully agree on a single rationale.
Under the tactic the court invalidated in the case
above, the police fU'st question a suspect while
withholding the advice required by the Miranda decision
ofthe right to remain silent and to consult with an attorney
before answering questions. In not giving the warnings,
the police know that any incriminating statements elicited

Florida Prison Legal Penpectives
in this phase of the questioning will be inadmissible in
court.
The officers then give the suspect a short break
before resuming the interrogation, this time with the
warnings. Typically, suspeCts will waive their Miranda
rights and then repeat what they had said prompted by the
officers' leading questions and by the sense that it is now
too late to tum back.
The issue for the Supreme Court was whether the
answers from that second phase of questioning could be
used in court. The majority's answer was no. Justice
Souter said the facts of this case by any objective measure
revealed a police strategy adapted to undermine the
Miranda warnings. He said the police had .created a
situation for the defendant, a woman suspected of murder,
in which it would have been unnatural to refuse to repeat
at the second stage what had been said before.
The case, Missouri v. Seibert, No. 02-1371, was a
variant of a case the court decided in 1985 called Oregon
v. Elstad. In that case, the police went to a young
suspect's home to tell his mother that they were arresting
him on a burglary charge. Without receiving any Miranda
warnings, the suspect gave an incriminating statement. He
was then taken to the police station where he received the
warnings and gave a full confession. In deciding .that the
evidence was admissible, the court· treated the ininal
failure to give the warnings as inadvertent rather than
strategic, based on confusion about whether the suspect
was formally in custody at the time.
The defendant in the Missouri case, Patrice
Seibert, was interrogated after a fire in her family's mobile
home killed a young man who was staying there and .
caring for her disabled son. Both before and after
receiving Miranda warnings, Ms. Seibert admitted her role
in setting the fire. The Missouri trial court suppressed the
first admissions but allowed the prosecution to introduce
the statements she made after receiving the warnings. Ms.
Seibert was convicted of murder. The Missouri Supreme
Court overturned the conviction and the· state sought
certiorari review.'
Justice Souter's opinion was join~d by Justices
John Paul Stevens, Ruth Bader Ginsburg, and Stephen G.
Breyer. Justice Anthony M. Kennedy wrote separately in
agreement with the result, proposing a test under which
fewer statements would be likely to be excluded than
under the majority's approach.
.
In a dissenting opinion, Justice Sandra Day
O'Connor said the court's decision devours Oregon v.
Elstad, a precedent she described as requiring the opposite
result. Justice O'Conner said the subjective intent of the
officers should make no difference, because a susp.ect
could not know what was in an officer's mind.
. Rather, she said, the test should be the
voluntariness of the second statements. If the statements
were VOluntary, they should be admitted.

The lineup in the· second M"U'ililda case was. the
same with the exception of Justice Kennedy, who voted on
the prosecution side.· The question in United States v.
Patane, No. 02-1183, was whether physical evidence, a
gun in this case, found as the result of statements obtained
without Miranda warnings, could be admi~ed in court.
The court's answer was yes.
Federal firearms agents went to Samuel F.
Patane's home in Colorado Springs to question him about
a report that he had a gun. Before the agents could finish·
reading Mr. 'Patane his Miranda rights, he interrupted
them, saying that he knew his rights. He then directed
them to the gun in his bedroom.
Interpreting the Oregon v. Elstad precedent, the
federal appeals court in Denver said the gun could.not be
introduced as evidence. The Supreme Court overturned
that ruling holding that the Miranda. rule could nOt be
violated unless statements were actually introduced in
court. See: Missouri v. Seibert, 17 FIa.L.Weekly Fed.,
8476 (6/28/04); U.S. v. Patane, 17 Fla.L.Weekly Fed.,
S482 (6/28/04)••

Uncomf~rtablyNUqib:

Excessive Heat on Death Row

Constitutional

R

ecently the United States Circuit Court of Appeals
found the temperatures on Florida's death row to be
hot but not excessive enough to be viewed as cruel and
unusual punishment.
Four years ago a .class-action lawsuit was filed
and claimed summer temperatures on death row regularly
top 100 degrees and sometimes reach 110. forcing
condemned prisoners to stand in toilets. drape themselves
in wet towels, and sleep naked on concrete floors.
While the.case was pending in the United States
District Court, Judge Ralph Nimmons toured the prison
and. interviewed some of the 300 inmates housed on death
row. He later ruled that the heat was not excessive. The
Court's ruling, according to Peter Siegel, an attorney with
the Florida Justice Institute in Miami who represented the
prisoners, recognized that it was hot, but so whatI
On appeal the 11 1h Circuit Court of Appeals found
that the heat is not unconstitutionally excessive; the prison
is equ"ipped with a ventilation system that manages air
circulation and humidity, the court said, that gives
prisoners a break from the heat.
We're extremely pleased with the ruling, said
Sterling Ivey, a spokeswoman for the Department of
Corrections. While Hannah Floyd, director of the Florida
Death Row Advocacy called the ruling inhumane. .
The Court's decision can be read in its entirety in
the case of Chandler v. Kelley~ 17 Fla.L. Weekly Fed.
C891 (V.S.C.A. Il lh Cir. 8/6104).•
5

.Florida Prison Legal Perspectives "

I

RHOTON & HAYMAN, P.A.
LOREN D. RHOTON
, At10mey At Law

~ST~CQNYI(;TION
:ATTO~
wrtS" .',sr' ';rtr 2" sa'"? m" m' w.IiW
DIRECT APPEALS
.(f> STATE POST CONVICTION
<;) SENTENCE CORRECTIONS
.
<i) FEDERAL PETITIONS FOR WRIT
OF HABEAS CORPUS
'<+I NEW TRIALS
<;) INSTITUTIONAL TRANSFERS
<;)

,

411 East Madison Street
Suite 1111
Tampa Florida 33601
(813)116-3138

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Florida Prison Legal Penpectives

.'.
;~.

POST 'CONVICTION
CORNER

by LoI'1ll Rhotcm, Eaq.

,

~

_.~'

Over the past several years I. have had the pleasure of working on the case of State v. Alan
Yurko. Mr. Yurko is a man who was wrongfully accused of shaking his baby son to death. The
conviction resulted due to several factors including ineffectiveness ortrial counsel and what has
been referred to by sOD;1e as corruption within the medical examiner's office. On August 27,
2004, the Circuit Court ofthe Ninth Judicial Circuit, in and for Orange County, vacated Mr.
Yurko's Judgment and Sentence. Due to the concerted efforts of many Mr. Yurko is now a free
man. I write this article ~ot to brag about my.involvement but instead to perhaps help others with
convictions out of Orange or OsceQla Counties.
Earlier this year the medical examiner of the Ninth Judicial Circuit, Dr. Shashi Gore was
disciplined by the Florida Medic81 Examiner's commission for his sloppy autopsy work on Alan
Yurko's case. Dr. Gore received the harshest sanctions ever doled out by the Medical
Examiner's Commission. Because of his negligence (and what some have described as
corruption) Dr. Gore has been suspended from performing any further autopsies and was
essentially relegated to an administrator of his office for the short remainder ofhis term. The
probable cause committee for the commission stated that if Dr. Gore had not been willing to
retire this past June, he probably would have been removed from office.
Dr. Gore's "mistakes" on the autopsy in Mr. YUrko's case were substantial and
numerous, including:
1. the fact that the decedent's head circumference was reported by Dr. 'Gore to'
I

be 22 centimeters, whereas the actual head circumference at birth was 32.5
centimeters, and, just prior to the autopsy the head circ~ference was 37.5
centimeters;
2. Dr. Gore's autopsy report provided a detailed description of the decedent's
inner heart muscle tissue despite the. fact that the decedent's heart was donated.
prior to the autopsy, and, thus, was·not present and available for inspection at the
time of the time of the autopsy;
3. Dr. Gore's report noted a contusion on the left lateral surface of the chest but
later in the same report n~ted that the skin did J:lot show any subcutaneous .
contusions on the buttocks, ches~ or abdomen;.
4. Dr. Gore altered his autopsy report to state the decedent's correct race (white
instead of black) after trial and without notice to the. court or parties;
5. Dr. Gore testified that neither he nor anyone from his office obtained the
medical history/records ofthe ~ecedent. Said records were necessary for the

7

Florida Prison Legal Penp~ctives
diagnosis of Shaken Baby Syndrome. Dr. Gore admitted that this was necessary
to make the diagnosis, yet he made the diagnosis anyway;
6. Dr. Gore testified at trial that he noted Diffuse Axonallnjury in the decedent,
but, the autopsy report made no mention of Diffuse Axonal Injury; and, at trial Dr.
Gore gave an improper definition of Ditfuse Axonal Injury to the jury;
7. Dr. Gore did not describe the microscopic appearance ofthe meninges or the
presence of Diffuse Axonallnjury in the brain or spinal cord; and,
8. Dr. Gore presented slides and testified about the old callous ofthe Slh, ~ ,and
10lb ribs, which were unrelated to the cause of death, as there were no new
callouses, and he noted the ~ rib as well in his autopsy report; and,
9. Dr. Gore testified that he didn't test the cerebrospinal fluid because it was
mixed with blood, but, his autopsy report noted that the cerebrospinal fluid was
clear.
The Florida Medical Examiner Commission found Dr. Gore to have made twelve errors,
including those listed above, in his autopsy. The panel investigating Dr. Gore found that Gore
committed at least five major errors while conducting the Autopsy on Baby Alan.
The judge on Mr. Yurko's case, the Honorable Alan Lawson, found that Dr. Gore's
autopsy in Mr. Yurko's case was problematic and that there was a substantial likelihood that the
outcome ofMr. Yurko's trial would have been different had the jury known about Dr. Gore's
sloppy autopsy and recent suspension in relation thereto. Judge Lawson also found that Dr.
Gore's recent suspension was newly discovered evidence under applicable law in Florida. See,
Jones v. State, 709 So.2d 512 (Fla. 1998). At the evidentiary hearing on Mr. Yurko's
postconviction mo~ion, the State argued that if the court were to overturn Mr. Yurko's conviction
based upon Dr. Gore's suspension, the trial court would be flooded with like petitions attacking
Dr. Gore's performance in other cases. Therein lies the purpose of this article. Dr. Gore was a
public official who's duties included making determinations as to whether someone should be
charged with a crime such as murder. Dr. Gore abused this public trust and, as a result, at least
one innocent'person was convicted of murder. Due to Gore's sloppy practices, Mr. Yurko almost
ended up wrongfully serving a life term in prison.
If any of my readers or their friends, relatives, etc., have been convicted of a crime due to
an investigation or a cause of death determination by Dr. Shashi Gore, I recommend investigating .
the possibility offiling a Florida Rule of Criminal Procedure 3.850 Motion for postconviction
Relief alleging the newly discovered evidence of Dr. Gore's recent suspension.
As already mentioned, Judge Lawson has determined that Dr. Gore's suspension was
newly discovered evidence in Mr. Yurko's case. As such, Judge Lawson set the precedent for all
other cases in Orange and Osceola Counties in which Dr. Gore was involved. For a copy of
Judge Lawson's written order in Mr. Yurko's case, one can contact the Orange County Clerk of
.Court and ask for the Order, or any other documents from the case. The address for the Clerk of
Court is 425 North Orange Avenue, Orlando, Florida 32801. The Clerk of Court's phone
number is (407)836-2050. Mr. Yurko's case number is Orange County Case #CR 98-1730.
Additionally, in preparing a 3.850 motion based upon Dr. Gore's misdeeds, one should
also obtain relevant documents from the Florida Medical Examiner's Commission. Documents
relating to Dr. Gore's disciplinary proceedings can be obtained via a public records request
pursuant to Florida Statutes Section 119. The commission can be contacted at Florida
Department of Law Enforcement, Medical Examiner's Commission, P.O. Box 1489, Tallahassee,
Florida 32302. The Medical Examiner's Commission is a branch of the Florida Department of

'J. ,",',

8

Florida Prison Legal Penpeetives
Law Enforcement. Any questions about a public records request can be addressed to FDLE at
the above listed address or by phone at (850)410-8600. I would recommend at least obtaining a
.copy of the Order imposing the sanctions on Dr. Gore. Said Order should be an attachment to
any 3.850 attacking a case based upon Dr. Gore's involvement in the case.
In filing a 3.850 based upon newly discovered evidence it is important to be aware of the
standard for a newly discovered evidence claim. In order to be considered newly discovered
evidence, for the purpose of setting aside a conviction, the evidence must have been unknown by
the trial court, the defendant, or by defense counsel at time of trial. Jones v. State, 709 So.2d 512
(pIa. 1998). Furthermore, it must appear that the defendant or his counsel could not have known
ofthe evidence by use of due diligence. Id. And, finally, the evidence must be ofsuch nature
that it would probably produce acquittal on retrial. M. . It should be argued to the court that
each one of the elements of the newly discovered evidence test is satisfied, as per the ,facts of
each individual case. Once again a review of Judge Lawson's Order may be helpful in
formulating such an argument.
'
In closing, if your conviction is a result of Dr. Shashi Gore's involvement in your case,
you have recently been handed strong ammunition for attacking y,?ur conviction. Please be
aware that a two year period of limitations applies to, all newly discovered evidence claims.
Therefore, if you intend to use the information provided in this article, I would recommend that
you begin as soon as possible. After the two year period of limitations lapses, no cases can be
overturned on the basis of Dr. Gore's involvement. Dr. Gore has abused the public trust. Do not
let any more bogus convictions stand as a result of his abuse 'of our trust.

Loren Rhoton is a member in good standing with the Florida Bar
and a member ofthe Florida Bar Appellate Practice Section. Mr.
Rhoton practices almost exclusively in the postconvictionlappellate
area ofthe law, both at the State and Federal Level. fie has assisted
hundreds ofincarcerated persons with their cases and has numerous
written appellate opinions. •

Florida PrisOll Legal Penpectives

Diseases Incubate Behind Bars
by Randy Sherrell
In local jails and prisons an outbreak of staph
infections poses great risk not only to prisoners housed in
such facilities. but also to the public once they are
released. These infections are especially dangerous to
, people with compromised immune systems.
The Centers for Disease Control and Prevention
~ cited several penal facilities for an outbreak of drugresistant strains of staph, which are especially difficult to
treat. Staph can be part contained by giving inmates
access to soap and hot water and making sure that their
laundry is thoroughly washed and dried. But facilities that
cannot organize themselves well enough to provide clean
linen stand little chance of success against the
heavyweight infectious diseases that' have become
endemic behind bars today. Among them are HIV,
tuberculoSis, and hepatitis C.
Complications from
hepatitis kiIl2S,OOO people each year.
The diseases that incubate behind bars don't just
stay there. They come rushing back to the general
population - and to the overburdened public health' system
- with the nearly 12 million local and state prisoners
released each year.
Some states have responded to the danger of
prison epidemics by gearing up to test, treat, and counsel
inmates. But most of the system is not so forward
looking. Faced with tight budgets, many jails and prisons
have backed away from testing inmates for fear that they
will be required to pay for treatment.
'
This approach was shown to be penny wise but
pmnd foolish when the country experienced an epidemic
of drug-resistant tuberculosis-driven mainly by former
prison inmates - during the 1990s. Though expensive,
testing and treatment for TB cases behind bars are more
efficient and cost-effective than mounting a full-scale
assault on the disease once it hits the streets. A similar
pattern has emerged with AIDS as infected inmates leave
prison and infect people outside, who then tum to the
public health system.
In the late 1990s, Congress held hearings and
instructed the Justice Department to perform the country's
first nationwide study of the health environment of jails
and prisons. The study, "The Health Status of Soon-to-b~
Released Inmates," is' available on the website of the
National Commission on Correctional Health Care, which
worked with the government on the project. It offers a
sobering view of the corrections system, which has clearly
become a major conduit for infectious disease. The rate of
transmission for sexually transmittable disease behind bars
is roughly 10 times.that in the world outside. In 'any given
year, 17 percent of people with AIDS, 3S percent of
people with tuberculosis, and nearly a third of those with
hepatitis C pass through the corrections system.

.

This system represents a gaping hole in the public
health network, thanks in part to the fact that prisoners
become ineligible for Medicaid assistance while they are
behind bars. . Inmates who have the misfortune of being
housed in jails and prisons without serious medical
programs often have no choice but to cease treatment,
which means that they get'sicker and continue to pose an
infection risk to others. Once released, those same
inmates spend months trying to ~11 in the Medicaid
program and get care.
The United States would experience less
infectious disease if the public health apparatus were fully
extended into the jails and prisons. The health status
report argues convincingly' for a rigorous program of
testing, treating, and counseling that would slow the
spread of disease and alert inmates to iIlriesses before they
reached the crisis stage and became prohibitively
expensive to handle.
These ideas are perfectly consistent with what we
know. about the importance of preventative medicine. But
applying them to prison inmates will be difficult until we
begin to see them not as outcasts who deserve to be cut off
from the public largesse, but as fellow citizens with whom
we will eventually share a common fate. •

A Peek at the Patriot Act
by Oscar Hanson
George W. Bush calls it "vital legislation .. that
protects us from the threat of terrorism; John Kerry says,
"there are good parts to it and bad parts to it"; the ACLU
claims it threatens "the very rights and freedoms that we
are struggling to protect." The Patriot Act has been
condemned by historians and city councils from Los
Angeles to Philadelphia. But how does the law affect
everyday citizens? Below, a brief description shows how
a (particularly unlucky) U.S. citizen might run afoul of the
"Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA PATRIOT) Act of2001."
Section 213: ChangeS standards for search
warrants to allow "sneak and peek" searches in any
investigation. Instead of serving the warrant in person, a
federal agent can now snoop first and let you know later often much later.
Section 218: Extends an exception to the Fourth
Amendment, allowing secret 'U.S. courts to authorize
secret searches if the government can allege a foreign
intelligence rationale. Any evidence discovered can now
be used in court.
Section 206: Permits "roving Wiretaps," which
allow the government to tap all phones or computers a
suspect might use-including those at a neighborhood pool
hall or Internet Cafe. Unconnected third parties can easily
11

Florida Prison Legal Penpectives
be swept into· this wider nel Along with Section 220, it
curtails judicial oversight ofsuch' wiretaps.
Section 214: By claiming relevance to a terrorism
investigation, the government can track your incoming
and outgoing calls without a warrant or probable cause.
Section 216: Allows, with a judge's approval,
Internet wiretaps to be used in any criminal investigation.
Authorities' are supposed to be limited to collecting
address information, not "content." But privacy advocateS
note that web addresses provide a direct path to the
content.
Section 215: Without demonstrating probable
cause, the FBI can obtain a subpoena to search your
personal records held by a library, bookstore, church,
bank, video store, etc. The subpoena cannot be challenged
in court, and it includes a "gag order" to keep you from
ever knowing it was served.
Section 50S: Just like 215, but there's no judge
required. Anyone from John Ashcroft down to an FBI
field officer can demand the same kinds of records simply
by issuing a "national security letter." The agent has only
to satisfy himself that the infonnation might be "relevant"
to an ongoing terror investigation.
Section 802: Defines the new crime of "domestic
terrorism" as illegal acts "dangerous to human life" that
"appear to be intended" to influence government policy by
"intimidation or Coercion." The vague' wording has
activists ranging from environmentalists to antiabortionists worried that their civil disobedience might be
reclassified as terror.
Section 806: Allows the Justice Department without a hearing - to seize the assets of alleged domestic
terrorists and their supporters.
Incidentally, Section 805(a)(2)(b): Banned giving
"expert advice or assistance" to government-designated
"foreign terrorist organizations." However, a federal
judge tossed out this provision as unconstitutionally vague
because it could encompass "pure speech and advOcacy
protected by the First Amendment."

right to seek U.S. Supreme Court certiorari.
Many U.S. Circuit Courts of Appeals were not
recognizing the extra 90 days. The U.S. 11 th Circuit, with
jurisdiction over Florida, Georgia and Alabama, was not a
leader among the circuits to recognize the extra 90 days,
but eventually it had to.
When the U.S. Supreme Court decided Clay v.
United States, 123 S.Ct. 1072 (2003), the extra 90 days
became the rule in all federal jurisdictions. Although the
case dealt with \Yhether federal prisoners were entitled to
an extra 90 days on top of the I-year AEDPA filing
period, it· equally applies to state-prisoners who are also
entitled to (potentially) seek certiorari review from the
U.S. Supreme Court after exhausting all available lower
court remedies.
Some confusion arises, however, because the
Court in Clay failed to make a succinct bright-line rule.
The Court held the date is 90 days after entry ofjudgment,
or, since in the federal courts mandate issues 21 days after
entry of judgment, it is "69 days after the issuance of the
court's mandate." ld. At 1075.
However, when does the time begin to run for
state prisoners, where there is no set time for issuance of
the state court's mandate?
Fortunately, for judicial economy, tJte Clay Court
rejected use of the mandate issuance to start the clock
before including the 69-day federal court mandate
issuance dicta. Therefore, for state prisoners who· cannot
rely on the federal 21-day rule, the extra 90 days begins
when the state appeal court rules. For most Florida
prisoners that's the date on the PCA (per Curium Affinn).
The only confusion that remains is in cases using the state
mandate date instead. That is clearly a risk, and a wary
litigant would be advised to count from the PCA date
instead. •

______oM"!ilJ'lIiRiilill'.*"'lI!a..,'-------

Like it or not, or nation has began its odyssey
toward a total police nation with no hope' of a return to the
days of freedom as we once knew it. •

Setting the Clock
by Richard Geftken
Kno\\n as the AEDPA, the Antiterrorism and
Effective Death Penalty Act created a one-y~r statute of
limitations on criminal defendants seeking a federal writ
of habeas corpus in challenge of their convictions or
sentences.
Some confusion remains over the I-year plus 90
days pennitted to file for federal habeas corpus relief. The
l-:year part is directly from the .AEDPA's 28 USC §
2244(d) provisions. The extra 90 days comes from the
12

Felon Voter Rights on Bold
fforts to have a referendum placed on the November
election ballot to automatically restore felons' voter
rights upon their release from prison will likely fall short
of the required number of signatures needed to make the
ballot. However, the American Civil Liberties Union
vows to have the referendum on the ballot by 2006.
The goal is to have automatic restoration of civil
and voting rights for felons once they have completed
their prison sentences.
Florida is among a half dozen states nationally
that do not automatically restore voting rights of felons.
Under Florida Law, former felons lose their right to vote

E

Florida Prison Legal Penpeetives
unless they request to have it reinstated by the governor
and clemency board.
The purge of some supposed felons from Florida
voter rolls before the 2000 presidential election sparked a
lawsuit filed by the NAACP, the ACLU and three other
groups on behalf of black voters. The federal class-action
lawsuit charged that minority voters were widely denied
voting rights in several counties.
.
The state settled the lawsuit in July and agreed to
help restore voting rights to nearly 125.000 convicted
felons who did not get enough advice on how to regain
their rights when they walked free.
.
Even as that lawsuit. was being settled. however.
steps were being taken to purge more supposed felons
from the voter rolls before November 2. In May '04 state
officials sent a list of more than 47.000 potential felon
voters to county election supervisors with instructions to
remove the names from voter rolls. The state refused to
make the list public. however. resulting in a lawsuit by
CNN to force the list's disclosure.
On July 1. ·04.a Tallahassee judge ordered the list
to be made public. Once the list was examined and
numerous errors in it began being publicized. nine days
later Gov. Bush ordered the list to be scrapped, saying it
was too flawed to be trusted. Some of the errors noted in
the list included it containing the names of more than
28.000 registered Democrats and less than 10.000
registered Republicans; the list also had less than one
tenth of 1 percent Hispanic names on it. this in a state
where nearly 1 in 5 residents are Hispanic. Many
Hispanic voters vote Republican
Despite getting rid of the list. Gov. Jeb Bush still
refuses to admit there are problems with the ex-felon civil
rights restoration process in Florida. He maintains the
clemency process is better than automatic restoration,
causing critics to question his motives. "It's a very
partisan issue," said incoming state Senate President Tom
Lee. R-Brandon. "The perception out there among"
Republicans is that most felons are Democrats." •

Another Brick In The Wall:
ResurrecQon of an Expired" Sentence
by Oscar Hanson

R

ecently. the Florida Supreme Court accepted
Jurisdiction in yet another gain time related case
where a certified question was sent by the First District
Court; of Appeal. I've followed this case with interest
since I was the culprit who litigated the Eldridge \I. Moore
case where the supreme court issued its ugly opinion that
held. upon revocation of community control or probation
impOsed as part ofa true or probatiQD8ry split sentence for
a single offense, both the trial court and the DOC ha.ve the
authority to forfeit gain time.
This recent case involves an issue of statutory
interpretation tempered by the constitutional prohibition

on double jeopardy. The DOC claimed statutory authority
to declare a forfeiture of gain time from a sentence that
was already served and to then apply it to another sentence
imposed upon revocation of probation.
In order to understand the dynamics of the court's
opinion it is necessary to get a brief overview of the facts
and history of this case.
Facts and Procedural History
Thomas Gibson was convicted' of committing
numerous felonies on various dates in 1993. All of the
offenses were included in a single guidelines scoresbeet
because the cases were pending sentencing at the same
time. The trial court sentenced Gibson to consecutive
terms oftive years incarceration incases 93-216 and 93297 for a total of ten years followed by consecutive
periods of five years probation in case 93-360 where
Gibson bad two counts of third .degree felonies. The
sanctions in cases 93-216 and 93-297 bad no probationary
terms. and. originally imposed. the sanctions in case 93360 contained no incarcerati9n.
Gibson completed bis cumulative ten-year
sentence in cases 93-216 and 93-297 through a
combination of time actually served and accrued gain
time. Upon his release form prison in April 1998. Gibson
began service of his probation in case 93-360. He
subsequently violated the terms of his probation and the
trial court revoked the probation and sentenced Gibson to
consecutive terms of four and three years in prison for a
total of seven years of incarceration. The trial court
granted credit pursuant to Tripp v. Slate, 622 So.2d 941
(Fla. 1993). of 1681 days time served from the completed
sentences in case 93-216 and 93-297 against the overall
seven-year sentence in 93-360.
.
While serving his sentence the DOC declared a
forfeiture of the 1969 days of previously un-forfeited gain
time from the sentence in cases 93-216 and 93-297, and
applied the forfeiture to the sentences imposed upon
revocation of probation in case 93-360. (The 1969 days
included both basic and incentive gain time.) Thus. the
combination of the credit for 1681 days actually served on
the expired sentences and the DOC's forfeiture of the 1969
days of unforfeited gain time actually increased Gibson's
seven-year sentence by 288 days.
Gibson challenged the DOC's authority to forfeit
the gain time from the complet~ sentences. wJtich the
trial court denied. Ultimately the First DCA aftlnned but
certified a question ofgreat public importance:

as

Does the forfeiture penalty enunciated in
\I. Moore. 760 So.2d 888 (Fla.
2000), apply where a defendant receives a
sentence of incarceration for one offense
followed by a sentence. of probation for
another offense, where both ciimes were
scored on a single scoresheet and the trial

Eldridge

13

Florida Prison Legal Perspectives
court awards prison credit pursuant to
Tripp v. State, 622 So.2d 941 (Fla. 1993),
upon violation of probation for the second
offense?
The core issue in this case is whether the DOC
may apply the forfeiture penalty of section 944.28(1)
across offenses to the guidelines sentence imposed upon
violation of probation for a crime that was originally
included in the same guidelines scoresheet as the offense
on which the gain time was accrued.
TbeTripp
Tripp, the case essentially relied upon by the DOC
and the First DCA ,as legitimizing the imposition of a
forfeiture penalty in Gibson's case, involved credit for
time served on a completedsent~nce when a defendant is
sentenced on a different offense to a term of incarceration
upon revocation of probation. In Tripp, the Court rejected
the contention that because convictions for two separate
crimes result in two separate sentences, the offender is not
eligible for time served credit. Consequently, the Court
deterritined that where a term of incarceration on one
offence is followed by 'a term of probation on another,
credit for time served on the first offense must he awarded
on the guidelines sentence imposed after revocation of
probati6n on the second offense.
In subsequent decisions based on Tripp, the
.
Supreme Court .continued to' emphasize that several
sentences imposed in a single sentencing scheme based on
a single scoresheet were to be treated as a single unit upon
revocation of probation or community control.
In
, Hodgdon v. State, 789 So.2d 958 (Fla. 2001), the issue
was whether the defendant was entitled to have Tripp
credit applied individually to the sentence for each offense
on which he violated probation. The supreme court held
that Tripp's requirement of credit for time previously
served applied to the overall sentence imposed upon
violation of probation rather than against each individual
count on which probation is revoked.
The apparent driving force behind Hodgdon, as in
Tripp, was fairness. As reasoned by the Supreme Court,
to have applied credit against the sentence on each
individual count rather than against the overall sentence
would have circumvented the guidelines by providing a
sentencing boon or windfall to defendantS upon violations
of probation. In Hodgdon, a per-count credit would have
resulted in the defendant serving no time in prison-a
result that was deemed contrary to the trial court's intent.
Enter Eldridge
previously stated, the Supreme Court
construed the statutory provision applicable in Gibson's
case that involve<l true split sentences of prison and
probation, and held that pursuant to section 944.28(1), the
,As

14

DOC may forfeit the gain time even if the trial court
chooses to retain it.
The Court recognized in Eldridge that actual time
served and gain time are not the same when it comes,to
awarding credit to a defendant upon revocation of
probation. While the award of gain time reduces and
inmate's release date, just as actual time spent imprisoned,
it is clearly not synonymous with actual time served. As
the DOC explained, and the Court bought into, the
authority to award and forfeit gain time (as opposed to the
trial court's authority to award credit for time served) is
used to encourage good' behavior in prison and on
supervision. The Court further reasoned that it was the
Legislature that provided for the award of gain time and
made the retention of that. gain time conditional upon the
satisfactory completion ofthe inmate's supervision.
Thus, under Eldridge, when a defendant is
sentenced to a prison term upon revocation of probation
imposed as part of a split sentence for a single offense, the
DOC has the complete authority to forfeit all gain time
previously awarded. The effect of this forfeiture was
designed to require the offender to serve out the remainder
of the prior incarceration in addition to the sentence
imposed upon revocation of probation.
At issue in Gibson's case was the Fist DGA's
determination that the sanction initially received by
Gibson was a probationary, split sentence within the
meaning of Eldridge. In a separate concurring opinion,
Judge Lewis expounded and opined that even though
Gibson had been convicted of multiple offenses, he
received only one sentence because the offenses were
scored on a single scoresheet and considered together in
forming his sentence. Since Gibson received only one
sentence for his three cases] his initial sentence constituted
a probationary ~plit sentence. Thus, pursuant to Eldridge,
the DOC had the authority to forfeit any accrued gain
time.
The Supreme Court agreed that Judge Lewis'
analysis correctly applied their precedent in this area of
law. The Court held that the-DOC's application of section
944.28(1) to the single-unit sentence structure first
addressed in Tripp is consistent with their prior ,case law
in which they have recognized the continuing relationship
among guidelines sentences that were original1y imposed
in relation to one another. In reaching this conclusion the
Court held that extending an interrelationship of singh>
unit guidelines sentences to gain time forfeiture does not
violate the requirements of section 775.021(4) Fla.Stat.,
and Rule 3.701(d)(12), Fla.R.Crim.P., that the offender
receive a sentence for each offense.
The Court further reasoned that an offender
sentenced for multiple offenses receives a separate
sentence for each offtnse, even though the sentences for
offenses scored on a single scoresheet are viewed as a
single unit out of concern for fairness and uniformity in
sentencing. So long as each sentence remains within the

Florida Prison Legal Perspectives
statutory and guidelines maximums, the application of the
gain time forfeiture does not tum separate sentences into
an unauthorized general sentence.
As the Court cOrrectly recognized, the DOC's
application of section 944.28(1) to single-unit sentences
will .nullify Tripp credit for most if not all sentences
imposed for offenses committed before October I, 1995,
which is the effective date of the enactment that requires
prisoners to serve 85 percent of their sentences.
Nevertheless, as the Court explained in their opinion, the
forfeiture penalty may not be applied so as to affect an
overall increase in the sentence upon revocation of
probation, resulting in a "Tripp penalty."
Double Jeopardy Issue
Gibson argued that the forfeiture of his gain time
from an expired sentence violated the' constitutional
probation on double jeopardy, because in effect the
forfeiture of gain time resurrects a sentence that has been
fully served. As Judge Benton stated in his dissenting
opinion from the DCA, a prison sentence without a
probationary component cannot be revived once the
sentence ha~ expired, which was consistent with Gibson's
argument
In the seminal case of ex parle Lange, 85 U.S. (18
Wall.) 163, (1873), the United States Supreme Court held
that Double Jeopardy Clause of the nation's constitution
was designed as much to prevent the criminal from being
twice punished for the same offense as from being twice
tried for it. The Court in Lange held that once a defendant
had paid a court imposed fine or the incarcerate term the
trial court could not vacate the judgment and impose a
new sanction beyond the original The Court stated that to
do so is to punish him twice for the same offense.
The Florida Supreme Court applied those double
. jeopardy principles in Lange to a multiple-offense
sentence scenario in Fasenmyer v. Slale, 457 So.2d 1361
(Fla. 1984). There the defendant, originally sentenced on
several counts, successfully challenged one of the
convictions on appeal, requiring reduction to a lesser
included offense and a s~orter sentence. On remand, the
trial court ordered that the five-year sentence on count two.
which had been concurrent with the sentence on count
one that was vacated on appeal, run consecutive to the
new sentence imposed on count one. On appeal the DCA
affirmed the new sentences and held that the change in the
sentence that had not been disturbed on appeal allowed the
Court to achieve its original sentencing plan based on the
aggregate ofthe convictions.
The Supreme Court ofFlorida quashed the DCA's
decision and stated by changing the sentence from
concurrent to consecutive and not pursuant to any
challenge by appellant to the previous sentence of the
underlying conviction, the court nullified the service of
those five years he had served and violated the Double

•

'Jeopardy Clauses of the United States and Florida
constitutions.
Like the sentences imposed in Fasenmyer, a
, single-unit sentence for multiple offenses imposed under
the guidelines is sentencing based on the aggregate of the
convictions. ' This is the foundation for the holding in
Tripp that the sentences must continue to be treated in
relation. to one another. Thus, the question is whether
revocation of gain time from an expired sentence and
application of that forfeiture to a' sentence for a different
offense under section 944.28(1) constitutes an
unconstitutional increase in a "fully satisfied" sentence for
that offense.
In addressing this question the Court noted that
the requirement of Tripp credit has, the inverse effect of a
forfeiture of gain time from and expired sentence. Tripp
gives credit for time actually served while section
944.28(1) takes away credit for gain time. Where Tripp
credit is equal to or less tJtan the amount of gain time
forfeited, the two cancel each other out.
To determine whether this is constitutionally
permissible the Court re-examined the basis for Tripp
credit and 'concluded that the gain time forfeiture penalty
for violation of probation authorized by section 944.28(1)
may be applied in a multiple-case, split-sentence scenario
so long as the number of days of gain time forfeited does
not exceed the credit for time actually served that has been
granted under Tripp.
In resol~ing the certified question in this case as
to whether the forfeiture penalty authorized by the Court's
i,nterpretation of the statute in Eldridge also applies to the
type of sentence imposed in Tripp, the Court concluded
that section 944.28( 1) authorizes the DOC to declare a
forfeiture of any eligible Tripp credit for a completed
guidelines s~ntence so long as the penalty does not
increase the length of the sentence imposed by the trial
court on the second offence after violation of probation.
In other words, the gain time forfeiture penalty from an
expired sentence carmot exceed the credit for lime actually
served from that same sentence. See: Gibson v. FDOC, 29
Fla.L.Weekly S356 (Fla. 7/8/04.) •

Yet Another BrickIn The Wall:
The Closure of Tripp and its Progeny
by Oscar.Hanson
n 1993 the Florida Supreme Court was faced with a
Itrialquestion
certified to be of great public importance: If a
court imposes a term of probation ,on one offense
consecutive to a sentence of incarceration on another
offens.e, can jail credit from the first offense be denied on
a sentence imposed after revocation of probation on the
second offense?
In Tripp, I the defendant pled guilty to two felony
charges, burglary and .grand theft. He was sentenced to
four years imprisonment on the burglary charge, and four
15

Florida Prison Legal Perspectives
years probation, to be serVed consecutive to the prison
sentence, on the grand theft charge. After serving his
prison time Tripp was released to probation. Shortly
thereafter he violated his probation. The judge then
sentenced him to four and one-halfyears imprisonment on
grand theft charge, but gave him four years credit for the
time previously served on the burglary charge. The
district court reversed Tripp's sentence, and held that he
was not entitled to credit for time served on the burglary
charge.
On review the Florida Supreme Court agreed with
the sentence impoSed by the trial court. The reasoning
applied by the Supreme Court focused on the purpose of
the sentencing guidelines, i.e., to establish a uniform set of
standards to guide the sentencing judge in the sentence
.decision-making process so as to eliminate unwarranted
variation in sentencing. In achieving this objective, one
guidelines scoresheet must be utilized for all offenses
pending before the court for sentencing. A sentence must
be imposed. for each separate offense, but the total
sentence cannot exceed the permitted range of the
applicable guidelines scoresheet unless a written reason is
given. And finally, sentences imposed after revocation of
probation must be within the recommended guidelines
range and a one-cell bump.
.
The focus of the Tripp decision was to ensure that
the intent and purpose behind the sentencing guidelines
not be violated. When Tripp was originally sentenced the
trial court used one scoresheet and the maximum jail time
he Could have received for the two counts was four and
one-half years. Upon a violation of probation, the
maximum sentence would have been five and one-half
years. However, without credit for time served, Tripp's
total sentence after the violation of probation would have
.been eight and one-half years, three years more than
permitted by the original sentencing guidelines. The
Court recognized that a failure to grant credit for time
served would allow trial judges to easily circumvent the
guidelines.
One year after Tripp was decided the Florida
Supreme Court addressed a more complicated factual
situation, which varied somewhat from that presented in
Tripp. In Cook,2 the defendant was initially convicted of
several offenses in 1989. He was placed on probation for
those offenses. In 1990, he was convicted of several new
offenses, and admitted that he had violated his probation
for the 1989 offenses. He was sentenced to four and onehalf years for the new 1990 offenses, and was again
placed on probation for the 1989 offenses, to be served
consecutive to his prison sentence for the 1990 offenses.
After serving his prison sentences for the 1990 offenses,
the defendant was released and began serving his
probatio~ for the 1989 offenses. Cook once again violated
his .probation and the trial court sentenced him to an
incarcerative sentence of three and one-half years, but
refused to give credit for time served on the 1990
16

offenses. Because the decision in Tripp had not yet been
rendered, the district court affirmed Cook's sentence.
Following the decision in Tripp, the Supreme Court
q~hed the district court's decision in Cook, and
remanded for further proceedings consistent with Tripp.
On remand, the district court again affirmed the
sentence imposed by the' trial court and noted that to allow
Cook 4.5 years credit for time served the 1990 offenses,
would result in no sanction for his multiple violations of
probation. The DCA reasoned that surely the sentencing
. guidelines did not intend such a result The DCA
concluded that Tripp was not intended to apply in every
situation in which probation for a second, separate offense
was imposed consecutive to a sentence of imprisonment
for another offense.
The Florida Supreme Court once again quashed
the decision of the district court and held that their ruling
in' Tripp requires credit for Cook's four and one-half
years' imprisonment he served for the 1990 offenses when
he was resentenced on the 1989 violation offenses. The
State argued that Cook's case differed from Tripp ~use
his 1990 sentence of four and one-half years'
imprisonment for the 1990 offenses to be followed by
three years' probation for the 1989 offenses was a resentencing for the 1989 offenses. The Court rejected this
argument and held it was irrelevant that Cook had been
resentenced in 1990 to probation for the 1989 offenses
after his first violation of probation. In 1990, one
scoresheet was utilized when Cook was sentenced to
prison for the 1990 offenses to be followed by probation
for the 1989 offenses and, therefore, Tripp was applicable.'
The next instance in which the Florida Supreme
Court was presented with circumstances to address a Tripp
issue was in Hodgdon. 3 There, the defendant had been
sentenced to numerous counts in 1989 to fifteen years in
prison (fifteen years for one count, five for another, to be
served concurrently) to be followed by twenty years'
probation for four separate charges (two ten-year
COJlcurrent probationary terms to be followed by two
consecutive terms of five-year sentences, all sentences to
run consecutive). The court credited the fifteen years
Hodgdon had previously served against the entire fortyyear sentence, rather than each. individual sentence. On
appeal, the DCA affirmed.
On review the Supreme Court approved the·
sentence and noted that, in contrast to Tripp, Hodgdon did
not involve a sentence that exceeded that which was
permitted under the sentencing guidelines. That fact
alone, however, was not the only reason the Court
distinguished Hodgdon from Tripp.
In Tripp, the
defendant had violated only one term of probation, while
Hodgdon had violated four. The Court concluded that
Tripp stoOd for the proposition that the original sentences
must be treated as an interrelated unit
Consequently, the Supreme Court announced a
clarifying point in the Tripp holding- to emphasize that a

Florida Prison Legal Penpectives
defendant who violates probation on multiple counts
imposed consecutive to a prison term is entitled to credit
for the time served on the prison term as to the entire
sentence imposed on the probation violation, not against
each individual count on which probation was violated.
Importantly, the Court further provided that the Tripp
holding was intended to prevent the circumvention of the
guidelines by treating sentences computed on one
scoresheet as an interrelated unit. The Court also noted
that Tripp was never intended to pr9vide a sentencing
boon. or windfall to defendants upon violations of
probation.'
The final decision from 'the Florida Supreme
Court in Tripp progeny was Wilherspoon4 where the Court
declared that consistent with Hodgdon, the holding in
Tripp should be applied notwithstanding the fact that the
newly imposed sentence is within the guidelines.
More recently, the Florida Supreme Court was
once again called upon to resolve an apparent conflict
between the First and Second District Courts of Appeal.
And while the First DCA did not explicitly address the
specific issue regarding or implicating Tripp, the Second
District did implicitly acknowledge whether Tripp and its
progeny are applicable to the Criminal Punishment Code
sentences, an"issue never addressed by the Supreme Court.
The Second District determined that with the advent of the
Criminal Punishment Code the legislative broadening of
permissible guidelines sentencing ranges has virtually
eliminated the circumvention of the guidelines problem
with' which Tripp was concerned.
There can be no doubt that when the Legislature
adopted the Criminal Punishment Code (CPC) in 1998, it
substantially altered sentencing in Florida. Under the
former sentencing guidelines, a narrow range of
permissible sentences was determined through a strict
mathematical formula. It was then within the judge's
discretion to sentence the defendant within that narroW
range. In contrast, under the now-applicable CPC, the
permissible range for sentencing is the lowest permissible
sentence as determined by the number of total sentencing
points up to and including the statutory maximum.
Conceptually, the CPC and the former guidelines are not
synonymous.
,
The Florida Su~reme Court recognized this
concept in Jones v. Slale and held that because a CPC '
sentence is conceptually different than a guidelines
sentence, not all the rules that' were applicable to
guidelines sentences are applicable to CPC sentences. In
establishing this difference, the Court constructed a wall
to foreclose the application of Tripp and its progeny to
CPC sentences.
The Court's analysis of CPC sentences and the
relevance of Tripp found that since th,e Legislature has
now specifically provided that a defendant may be
sentenced up to the statutory maximum for any offense,
including an offense after a violation of probation, a trial

judge is not longer limited by an established guidelines
maximum and a one-cell bump. Therefore, because the
concerns related to guidelines sentencing are no longer
present in CPC sentencing, and the courts are no longer
specifically limited to a sentencing guidelines range under
the CPC, there is not longer a justification for continuing
to treat separate offenses as an interrelated unit after the
minimum sentence is established.
, In sum, Tripp' and its progeny are no longer
available to defendants who violate a consecutive term of
probation and are sentenced under the, Crimina~
Punishment Code. See: Moore v. Slate, 29 FJa.LWeekly
S432 (Fla. 8/26/04).
Endnotes
I

1
J
4
S

Tripp v. State, 622 So.2d 941 (Fia. 1993)
Coole v. Slate, 645 So.2d 436 (Fia. 1994)
Hodgdon v. State, 789 So.2d 958 (Fla. 2001)
"State v. Witherspoon. 810 So.2d 871 (Fia. 20(2)
, Jones v. State, 813 So.2d 22 (Fia. 2002) •

Prison Credits in Relation
to Split Sentences Following
Revocation of Probation
by Dana Meranda
robation is a court ordered
of supervision under
P
specific conditions for a specific period of time that
when combined with a,term of imprisonment cannot
term'

exceed the statutory maximum. King v. State, 681 So.2d
1136, 1140 (Fla. 1996); Fuentes v. State, 711 So.2d 175
(Fla. 2d DCA 1998).
A moderate number of offenders are given split
sentences of prison followed by probation wiD end up in
violation of the probation, whether a result of technical
violations or from new charges filed while on probation.
Of the 26,599 prisoners released from prispn
during Fiscal Year 2002-03, almost 18% (4,679) were
released to probation or community control. (FDOC FY
2002-03 Annual Report)
In Tripp v. State, 622 So.2d 941(FIa. 1993), the
Supreme Court held "that if the trial court impQSes a term
of probation on one offense consecutive to a ~ of
incarceration on another offC'nse, credit for time served (in
prison] on the first offense must be awarded on the
sentence imposed after revocation of probation on the
second offense. It Hodgdon v. State 789 So.2d (Fia. 2001)
(clarified the holding in Tripp).
,
It follows that upon violation of the probati~~
portion of a split sentence, a defendant is entitled to Credit
for time served ,on the incarcerative portion, unless a
waiver of such credit is clearly, evidenced in the record.
Cozza v. State, 756 So.2d 272 (Fla. 3d DCA 2000); Wells
v. State, 751 So.2d 703 (Fla.l- DCA 2000).
17

Florida Prison Legal Penpectives
:A.trial court does not hive to ~lculatethenumber
of days, but must direct the Department of Corrections
(DOC) to calculate and app~ prison credit. Newman v.
Sta.te866 So.2d 751 (Fla. 5 DCA 2004). It is the trial
court's responsibility to place a check in the appropriate
box on the written sentencing documents concerning
prison credit. Andrews v. State, 822 So.2d 540 (Fla. 2d
DCA 2002); and Forbes v Singletary, 684 So.2d 173 (Fla.
199~) (illustrating the trial courts' responsibility).
.
A claim for additional prison credit may properly
be raised in a Rule 3.800(a), Fla.R.Crim.P., Motion to
Correct Illegal Sentence. Scott v. Slate, 872 So.2d 1011
(Fla. Sib DCA 2004); Burnett v. State, 745 So.2d 1043
(Fla. 2d DCA 1999).
. • 'J_,
If the DOC fails to credit a sentence with prison
time awarded by the trial court, the prisoner must first
exbaustthe available administrative remedies pursuant to
Chapter 33-103.001, Fla. Admin. Code, and then, if
necessarY, file a Petition' for Writ of Mandamus to the
circuit court, presumably the Second Judicial Circuit
Court, Leon County, to seek to compel the DOC to award
the credit as is its duty. Stovall v. Cooper, 860 So.2d 5, at
8 n 3 (Fla. 2d DCA 2003). "Presumably", because a
venue issue exists, on where it is proper to file suc.h
Mandamus petition. That issue is expected to be resolved
by the Florida Supreme Court from the question certified
in Burgess v. Crosby, 870 So.2d 217 (FIa. Ill, DCA
3/24/04). See also, FPLP, Volume 10, Issue 3, pg. 17,
Notable Cases.
In such a situation regarding Mandamus, court
costs may possibly be avoided by filing an accompanying
Affidavit of lndigency pursuant to § 57.081,Fla. Stat.
Schmidt v. Crusoe, 28 Fla.L.Weekly S367 (Fla. 511/03),
rehearing filed 5121103; McKire v. Crosby, 29
Fla.L.Weekly D305 (F11r. 111 DCA 1/29/04).
. Offenders faced with a future term of probation or
currently incarcerated due to a V.O.P. should become
familiar .with the applicable sentencing laws involving
split sentences, as wen as the consequences of revocation
of probation.
[Note: It is important to note that the Florida Supreme
Court has just recently held that Tripp and its progeny do
not apply to a sentence imposed under the· Criminal
Punishment Code, which replaces the sentencing
guidelines for offenses committed after October I, 1998;'
Moore v. State, 29 Fla.L.Weekly S432 (Fla. 8126/04); See
~O:'article in this issue of FPLP entitled: "Yet Another
Brick in the Wall: The Closure of Tripp and its Progeny.j

•

_ _II IMI I l'.....*!!'!!!!K'lL_a- 18

When a Written Sentence Fails
to ComportWith the Trial
Court's Oral Pronouncement of
Sentence
by Dana Meranda
he Florida District Courts of Appeal (DCAs) do not
T
all agree
raising this type of issue on a Motion
to Correct Illegal Sentence pursuant to Rule 3.800(a),
up~m

Fla.R.Crim.P.. Therefore, the following summary is
collected for those contemplating raising tho issue and to
evaluate the vehicle to be used to seek relief.
Trial courts are bound to follow the decisions of
their respective DCA. Purdo v. State, 596 So.2d 665 (Fla.
1992); Harvey v. State, 848 So.2d 1060, 1063 (F1a.2003).
Consequently, it is essential to focus your research
towards the DCA with jurisdiction over the particular trial
court that imposed sentence.
Every sentence mllSt be pronounced in open court,
including. if available, the amount of jail time credit' the
defendant is to receive. A court's written judgment and .
sentence must not vary from its oral pronouncement.
When a written sentencing order is inconsistent with,
conflicts with, or does not comport to the trial court's oral
pronouncement of sentence, the oral pronouncement
controls. State v. Williams, 712 So.2d 762, 764 (Fla.
1998); Ashley v. Stale, 850 So.2d 1265 (Fla. 2003).
. Statutorily specified conditions of probation and
community control do not require oral pronouncement at
the time of sentencing. However, due prQCess requires
that special conditions not statutorily authorized be orally
pronounced at sentencing before they can be included in
the written probation order. State v. Hart, 668 So.2d 589,
592 (Fla. 1996); and, Bardo v. State, 682 So.2d 557,558
(Fla. 1996) (striking unannounced special conditions).
Relief has been sought and achieved under Rule
3.800(a) in challenging a wide variety of oraVwritten
sentencing discrepancy issues. For example, Berthiaum v.
State, 864 So.2d 1257 (Fla. 51b DCA 2004) (eliminating
consecutive sentencing not orally pronounced); Spahalic v.
State, 837 So.2d 596 (Fla. 2d DCA 2003) (removing
minimum mandatory term not orally pronounced); Green
v. State, 853· So.2d 1114 (Fla. lSi DCA 2003) (strikillg
probation not orally pronounced); Driver v. State, 710
So.2d 652 (Fla. 2d DCA 1998) ( striking habitual offender
sentence not orally pronounced); Hurd v. State, 807 So.2d
753 (Fla. 3d DCA 20(}2) (amending natural life sentence
to 2S years).
'
Although there is some debate as to whether a
sentencing discrepancy issue constitutes an illegal
sentence for the purpose of Rule 3.800(a), recently
generated case law now shows that all DCAs, with the
exception of the Fourth, are amendable to raising this
issue on a Rule 3.800(a) Motion.

Florida Prison Legal Perspectives
For example, in Fitzpalrick v. Slale, 863 So.2d
462 (Fla. lSI DCA 2004), the First District recently held,
"although this court indicated such claim was not
cognizable under rule 3.800(a) in Luckey v. Slale, 811
So.2d 802 (Fla. 1st DCA 2002), we have since concluded
that in light of the Supreme Court decision in Ashley, this
is an issue implicating double jeopardy protections and an
illegal sentence so as to be presentable under rule
3.800(a)." See also, Hurl v. Slale, 29 Fla.L. Weekly
D790d (Fla. ISI DCA 3/31/04).
The Second District has remained fU1J1 in their
holdings of a claim that the written sentence does not
comport with the oral pronouncement ofsentence is
properly raised on a Rule 3.800(a) Motion to Correct
Illegal Sentence. Simon v. Slale, 793 So.2d 980 (Fla.2d
DCA 2001); Cole v. State, 841 So.2d 488 (Fla. 2d DCA
2003).
While case law is somewhat sparse, the Third
District has permitted the sentencing discrepancy issue to
be raised under Rule 3.800(a). White v. State, 624 So.2d
811 (Fla. 3d DCA 1993); CArrol v. State, 670 So.2d 188
(Fla. 3d DCA 1996). Similarly, in Hurd v. State, 807
So.2d 753 (Fla. 3d DCA 2002), the Third DCA relied on
Ferguson v. State, 788 So.2d 387 (Fla. 2d DCA 200 I), a
Second DCA case dealing with an oraUwritten sentencing
discrepancy. By virtue,of Rule 3.800(a), the Third DCA
determined the defendant was entitled to have sentence
amended to carry out the terms of the plea agreement,
which was in essence, an oral pronouncement of parole
eligibility after serving 2S years.
The Fourth District is unyielding in their rulings
that a claimed discrepancy between a written sentencing
order and the court's oral pronouncement of sentence is
nol cognizable on a Rule 3.800(a) Motion to Correct
Illegal Sentence. Rinderer v. Slate, 857 So.2d 955 (Fla.
41b DCA 2003), citing Campbell v. Slate, 718 So.2d 886
(Fla. 41b DCA 1998), reasoning that the error was caused
by noncompliance with a procedural rule and does not
result in an illegal sentence.
And, the Fifth District, in Berlhiaum v. Slate, 864
So.2d 1257 (Fla. 5th DCA 1130/04), and Pittman v. Stale,
859 So.2d 555 (Fla. Sib DCA 2003), authorized the use of
Rule 3.800(a) to address a discrepancy between the oral
pronouncement and the written sentence.
A discrepancy between the oral pronouncement of
sentence (sentencing transcripts) and the written
sentencing order without question qualify under Rule
3.800(a), Fla.R.Crim.P., " ...as court records demonstrate
on their face an entitlement to relief."
In accordance with the Supreme Court's
interpretation of an illegal sentence in Carter v. Stale, 786
So.2d 1173, 1178 (Fla. 200 I), and parallel explanation by
the Second DCA in Cole, "that a judge is never authorzed
to impose a written sentence that increases the length of
the sentence beyond the term orally pronounced," it seems

inevitable that the Fourth DCA will eventuaUy. be
persuaded ~o join ihe decisions of its sister Distrlet5.
[Note: Keep up with the Florida Law Weekly for any
future developments out of the Fourth DCA- dm] _

From the editor••.

W

ith this issue we hopefully have made up $Ome of
the unavoidable delay in getti.ng the last issue of
FPLP printed and distributed. That delay was caused by
hurricanes Charlie and Frances crisscrossing Floi:ida very
near to Orlando (where the FPLP office is located) wiUtin
a month of each other. The resulting power outages,
evacuations, mail delays and personal damage
experienced by the FPLP staff and staff at our printing
and mailing services threw us behind about 3 weeks and it
is likely to take a couple of issues to get caught back up.
Fortunately, all o·ur staff survived the storms safely, but
cleanup Iimjted the time they had to volunteer. We know
many, many others weren't so fortunate, and our hearts go
out to them. In the larger scheme of things, this magazine
being a little late is nothing; we will get back on schedule,
however, and appreciate members' and readers'
understanding, patience and loyalty.
Recently, there has been a lot of activity in the
courts that we believe is, or should be, of interest to
Florida prisoners. This issue is packed with news and
information about some of the more important litigation
activities. There have also been some significant state
legislative changes this year that pro se litigants need to be
aware of. The major ones are summarized in the
Legislative Watch section of this issue.
It was intended to run an article in this. issue
concerning the interest earned on inmate accounts and the
price gouging in the prison canteens in response to the
FDOC-initiated Legislation authorizing a "processing fee"
to be charged for inmate bank accounts. (See: FPLP,
Volume 10, Issues 3 and 4.) When the fees, that are going
to impact prisoners' families probably more than
prisoners, were not immediately imposed in·July when tho
new law went into effect prisoners suddenly became
apathetic about the iniquityof the "fees" on top of all the
other schemes by the FDOC to gouge money out of the~
families. This is NOT the time to be complacent. It may
be the "fees" cannot be stopped by litigation, but there are
strategies that can be implemented to lessen, or perh4ps
even reverse, their impact. Some of those strategies will
!
be discussed in the next issue.
We have received quite a few letters,
understandably, inquiring about the FAIR (phone rate
reduction) Campaign and Parole Project recently, tw~
projects of Florida Prisoner's Legal Aid \Organizatfoli.
Both of those projects have been temporarily placed on
hold due to lack of funds. Both are important projects that
deserve your support.
II

Florida Prison Legal Perspectivt:s
Please consider making a donation for one or both of those
projects so they can be got back on track. Any amount

.'". donation will help.
Donations are also needed to keep FPLP and.
FPLAO growing. There are expenses associated with
publishing FPLP and the activities of FPLAO to help
Florida prisoners and their families and friends that the
membership dues do not cover. Your support is needed so
the .organization can continue to to be here for you. Also.
please continue to encourage others to become an FPLAO
member and share your FPLP's so they benefit as many
. people as possible.
. And on a final note, the FPLP staff occasionaUy
receives mail from non-prisoners directed to me or
concerning my editing FPLP. I can be contacted directly
at the below address and welcome your letters. Prisoners
cannot write to other prisoners per FDOC rules-so don't
send me mail from another institution and waste a stamp.
Potential articles are also welcome.
As we conti~ue our individual struggles let's not
forget we are all more effective when we struggle together
collectively.
tBo6~osey

Write me at:
Bob Posey
046087 M-2118-L
Sumter CO". Inst.
POBox 667
Bushnell, FI33513-0147 •

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Florid~

Supreme Court
Rules 3-Strike Law'
Constitutional

Tallahassee - Florida's Supreme Court, in a 4-3 ruling,
held that the state's 1999 "three strikes" law that mandates
longer prison sentences for repeat offenders is
constitutional on Sept. 30, 2004.
The decision came to resolve a disagreement between
the state's five appeals courts. Two of those courts had
held the law was enacted in violation of the state's
constitutional single subject requirement. that legislative
bills concern only one subject. The other three appeals
courts had ruled the law did not violate the single subject
provision.
After the first appeal court had held the law was
unconstitutional, in 2002 the Legislature re-enacted the
provisions of the same law in five different bills to correct
the problem. Under the provisions, judges must give
defendants the maximum allowed penalty for a third
felony. Other provisions mandate a three-year minimum
sentence for aggravated assault or battery on an elderly
person, three-years for assault of a LEO, and five years for
battery of a police officer.
The law also reduces the amount of marijuana
necessary for a trafficking charge from SO to 25 pounds,
and increases penalties for repeat sexual batteries.
Supreme Court Justice Barbara Pariente wrote the
majority opinion and was joined by Justices Charles
Wells, Raoul Cantero and Kenneth Bel1 in upholding the
law. Justice Pariente wrote that the Supreme Court rarely
finds that a law violates the single subject requirement
because the Legislature must be given "considerable
difference." She held it wasn't necessary to look beyond
the title of the law, "Th~e-Strike Violent Felony Offender
. Act," to determine that it is an act relating to sentencing
and all the sections of the law are connected to the subject
of sentencing. Justices Peggy Quince, Harry Lee Anstead
and Fred R. Lewis disagreed and joined in a dissenting
opinion.
The case in which the Sept. 30 decision came was an
appeal by state prisoner Corey Franklin, 2S, who was
sentenced to 40 years under the 1999 version of the threestrikes law in 2000. In Franklin's case the Third District
Court of Appeals had found the law was constitutional
while other appeals courts had found the opposite..
On the same day the Supreme Court dismissed a legal
challenge by prisoner Cedric Green to the 2002 version of
the same provisions.
Franklin v. State. 29 Fla.L.Weekly SS38 (Fla.
9/30/04)_

Florida Prison Legal Perspectives

The/ollowing are summaries ofrecent state andfederal cases thai may be useful 10 or have a significant impact on Florida prisoners..
Readers should always read the full opinion as published in the Florida Law WeelcJy (Fla. L. WeelcJy); F/orirla Law WeelcJy Federal
(Fla. L. WeelcJy Federal); Southern Reporter 2d (So. 2d); Supreme Court Reporter (S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Supplement 2d (F.Supp. 2d), since these summaries are for general information only.

FLORIDA SUPREME COURT
Byrd v. State, 29 Fla.L.Weekly S379
(Fia. 7/8/04)

against the Secretary of the DOC
seeking mandamus, or injunctive and
declaratory relief, to compel the
DOC ,to comply with section
944.293, which states:

Originally
the
Florida
Supreme Court accepted jurisdiction
Initiation of restoration of civil
in this case on the premise that, the
rights-with respect to those persons
DCA had declared invalid a state
convicted of a felony, the following
statute and construed a provision of
procedure shall apply: Prior to the '
the state constitution.
time an offender is discharged from
However,
the
court
supervision, an authorized agent of
ultimately recognized that the
the department shall obtain from the
opinion declaring the statute invalid
Governor the necessary application
was signed by only one judge on the
and other forms required for the
DCA's three-judge panel; the other
restoration of civil rights. The
two judges concurred in the result
authorized agent shall assist the
(affirming the trial court's denial of
Byrd's action) but did not join in the • offender in ,completing these forms
and shall ensure that the application
opinion.
and all necessary material are
Since the opinion declaring
forwarded to the Governor before
the statute invalid was not the actual
the offender is discharged from
decision ofthe entire panel, the court
dismissed review for lack of
supervision.
jurisdiction. In other words, the
The action was filed in the Second'
language and expressions found in a
dissenting or concurring opinion
Judicial Circuit Court in Leon
County and on July 25, 2003 the trial
cannot support jurisdiction under
court entered a final judgment that
section 3(bX3) of the Florida
Constitution because they are not the
granted retroactive relief for
decision ofthe DCA.
offenders who were released from
prison on supervision during the
period between 1992 and 2001.
DISTRICT
COURTS
OF
However,
the trial court had
APPEAL
dismissed the mandamus portion of
the, action thus no prospective relief
Florida Caucus of Black State
was granted. On appeal the Florida
Legislators
v.
Crosby,
29
st
Caucus
argued that the trial court's
FIa.L.Weekly 01629 (1
DCA
order should be reversed with
7/14/04)
instructions to issue the mandamus
In 2002
the
Florida
relief c9mpelling compliance with
legislature created section 944.293,
section 944.293.
.
Florida Statutes, that requires the
The trial court had ruled that
Department of Corrections to assist
mandamus was not appropriate
inmates with the restoration of their
because the DOC's statutory
civil rights prior to their release.
obligations
are discretionary, rather
Recently the Florida Caucus ofBlack
than
ministerial.
The district court of
State Legislators brought a civil suit

appeal determined that the use of the
word "shall" throughout 'section
944.293 indicated that the DOC's
obligations are not discretionary•. J ",.
Moreover, the trial court aJsoe
ruled that mandamus was not
appropriate because the DOC's
statutory obligations are not ~leidy,
stated in section 944.293. While the
DCA agreed with the trial court that
the DOC's statutory obligations are
ambiguous,
under
controlling
precedent, the DCA is to interpret an
ambiguous
statute and
th~
determine it to be sufficiently "clear"
for the purpose of mandamus reliet
The DCA analyzed the rust
requirement of section 944.,293
which states: "Prior to the time an
offender
is discharged from
supervision, an autho~ agent of
the department shall obtain from the
Governor the necessary .application
and other forms required for the
restoration of civil rights." A focal
point at issue was whether the DOC
actually gave to the offender the
form in order to assist the offenders
as required by the last sentence of
section 944.293, which states: "The
authorized agent shall assist the
offender in completing these forms
and shall ensure that the application
and all necessary material
forwarded to the Governor before the
offender is discharged from
supervision." In sum, the DCA
agreed that although the last sentence
of section 944.293 clearly required
the DOC to assist the offender, what
specifically was expected of the
DOC was in question.
Nevertheless, the DCA
decided that a reading of those
provisions together requires the DOC
to provide the requisite forms to the

are

21,

Florida Prison Legal Penpectives

\

offenders prior to their discharge.
The DCA also determined that DOC
must the assist the offenders in
~mpleting the required forms as
stated in the statute. The court noted
~t ~ DOC ~m fu~e i~
assistance on the offenders, but must
respond to a request by the inmate
for assistance. In other words, the
DOC is not required to automatically
Dlstst without an inmate's request to
do so.•

/Rymon v. State, 29 Fla.L.Weekly
D1633 (Fla. 111 DCA 7/14/04)
Florida prisoner Martin
Drymon petitioned the First District
Court of Appeal for a writ of
certiorari seeking review of an order
from the circuit court that denied his
petition for mandamus relief against
the State.
Drymon was originally
sentenced in 1995 on two separate
offenses. In one case (87-2759),
Drymon was sentenced to 15 years
and in case two (94-3290) was
sentenced as an,habitual offender to a
eoncurrent term of 20 years,
followed by' 2 years of probation.
Drymon subsequently filed a motion
to withdraw his plea in case 94-3290,
alleging that his trial counsel
misadvised him that he qualified as a
habitual offender. The trial court
ultimately determined that Drymon
did not qualify as a habitual offender.
Therefore, in 1997, the trial' court
resentenced Drymon to a split
sentence of 150 months in prison
followed by 30 months probation, to
be served consecutively with· case
87·2759. The trial court ordered that
Drymon be allowed credit, for all
time served on this case prior to
resentencing.
The DOC
recalculated
Drymon's release date and because
the sentences were now consecutive,
the DOC awarded basic gain time
and incentive gain time in case 872759, which was eamedfrom the
December 11, 1995 sentencing date,
to arrive at an ending sentence date
of February 28, 2001, when the
consecutive sentence began. The
ZZ

DOC· applied 710 days as credit for
ensure a defendant undefstands any
prison time served in case 94-3290
direct consequences of his plea.
between the date of original sentence
Those types of consequences are
and the 'date of resentencing but did
only the ones that effect the sentence
not include any incentive gain time
that the trial court can impose. The
Drymon earned while the sentences
trial court is under no duty to inform
were concurrent.
the defendant of the collateral
Drymon exhausted ,his
consequences.
administrative remedies and then
The question between the
sought mandamus relief, which was
two types of consequences (direct or
denied by the circuit court. On
collateral) turns on whether the
certiorari review, the First DCA
resub of a plea represen~ a definite,
reversed. The appellate court found
immediate . and largely automatic
that the trial court had departed from
effect on the range of the defendant's
the essential requiremen~ of the law
punishment. The examples the DCA
when Drymon was denied incentive
used to show where collateral
gain time during the period of his
consequences were involved are:
original sentence. The Court
sexual offender registration; being
reasoned that Drymon did serve 710
required to report to the Florida
.days under the original sentence (that
Dept. of Law Enforcement as .a
was concurrent with 87-2759) and he
felon; that a conviction may be used
earned 412 days of gain time on both
to enhance a sentence for
sentences. Upon resentencing, the
subsequently committed crimes; and
trial court specifically awarded the'
the possibility of civil commitment
710 days of credit for time served,
under the Jimmy Ryce Act, because
which naturally should include any
i~
not
automatic
minimum
and all unforfeited gain time accrued
mandatory sentence is a dil:ect
prior to resentencing. Thus, Drymon • consequence.
was entitled to mandamus relief for
Slater's termination of
the .412 days of unforfeited gain
parental rights did not effect the
time.
range of his sentence, so it was not,
as he claimed, a direct consequence
Slater v. State, 29 Fla.L.Weekly
of his plea. The DCA also found that
D1855 (5d1 DCA 2004)
it was not an automatic consequence
Ricky Slater's case takes a
either.
Slater himself,
after
conferring with counsel and' after
brief look into the distinction
between direct and collateral
entering his plea entered a written
consequences of a plea as well as the ' agreement with the Department of
trial court's obligation to ensure a
Children and Families to surrender
defendant is advised of such
his parental righ~. The agreement
consequences.
was accepted and executed by the
After Slater's plea agreement
dependency court.
and subsequent conviction of
Consequently,
Slater's
aggravated manslaughter of a child
convictions and sentencing were
and aggravated child abuse involving
affirmed. - as
his twin sons. he appealed. Slater
argued that his plea for 15 years . Rasley v. State, 29 Fla.L.Weekty
Dl752 (111 DCS 7130/04)
prison followed by 15 years
probation was involuntary because
Kimberly
D.
Rasley
he was not advised that his parental
appealed' her conviction for second
righ~ of the surviving twin would be
degree murder arguing three issues.
Two of those issues involved claims
terminated. He further claimed ~t it
was a direct consequence of his plea.
that the trial court erred in denying
The Fifth District Court of
her motion for judgment of acquittal
Appeals (DCA) explained that a trial
(JOA) because: (1) the state's
judge does have an obligation to
evidence failed to rebut Rasley's

Florida Prison Legal Perspectives
defense of self-defense, and (2) the
state's evidence was insufficient to
establish Rasley acted with a
depraved mind, and at most proved
only
the
commission
of
manslaughter.
Rasley's
third
argument was the trial court erred in
imposing a 25-year minimum
mandatory sentence for use of a
firearm in the commission of the
offense in addition to reclassifying
her conviction from a first-degree
felony to a life felony for the use of a
firearm resulting in a minimum
mandatory sentence constituting· an
improper double enhancement.
The background of this case
involved a turbulent marriage.
Rastey was faced with continuous
abuse from her husband and then one
day she found out he was seeing
another woman, as described by her
to. detectives, was the "last straw."
Rasley claimed she was at home and
in the process of getting her bags to
~ck and leave her husband when he
anived. Following a heated shouting
match between the two, the husband
slammed out of the house only to
return a short time later. Upon
hearing her husband unlocking the
door and in fear of her safety, Rasley
retrieved a Colt. 357 magnum
revolver. She claimed that despite
her entreaties for her husband to
stop, he continued his advance
toward her; whereupon, in an act
Rasley . cll~jmed was self-defenSe,
shot her husband in the head at a
diStance of24 to 42 inches away.
01) appeal the .First District
Court of Appeals (DCA), regarding
Rasley's self-defense theory, noted
the state's evidence that was
presented to the jury could
reasonably infer that Rasley acted
out of anger and jealousy due to the
husband having an extramarital
affair. Also, .the record contained
sufficient evidence that the jury
could conclude that Rasley had other
reas~nable options besides deadly
force to avoid the danger posed by
her husband's advance, including
retreat. . Therefore, the DCA agreed

that thetrlarco'~' di(t, DOten- in
denying the motion for JOA
The DCA rejected Rasley's
argument that the trial court erred in
denying her motion for JOA as to the .
offense of second-degree murder in
that the state's evidence at most
proved only the lesser offense of
marislaughter. In explanation of their
DCA
showed
rejection
the
definitions and the elements involved
in the distinctions between the two
of(enses of second-degree murder
and manslaughter. The DCA ruled
that they were unable to say that the
evidence is such that there was no
view which the jury could have taken
favorable to die state that can be
lawfully sustained. In other words,
once the evidence was viewed in the
light most favorable to the state. the
DCA was unable to conclude that a
rational trier of fact could not
lawfully find that the evidence
proved the existence of all the
elements of the crime of seconddegree murder beyond a reasonable
doubt. It was noted that pursuant to
an agreement of counsel, the trial
court instructed the jury on
manslaughter by intentional act, and
that if the jury concluded Rasley did
noUct intentionally, it could not find
her guilty of the lesser included
offense of manslaughter.
As
to Rasley's
final
argument regarding her sentencing,
the DCA cited .and agreed with the
holding in State v. Whitehead, 472
So.2d 730 (Fla. 1985). The Supreme
. Court had concluded in Whitehead
that subsections (I) and (2) ofsection
775.087, Fla. Statutes are not
mutually exclusive. Subsection (I)
provides that in cases in which a
person is convicted .of the
commission of a felony with a
firearm, and the use of a flJ'earm is
not an essential element of the
offense, the felony for which the
person is convi~ted shall be
reclassified upward. one category..
Subsection (2) provides that persons
who . commit certain enumerated
felonies with a firearm are required
to serve minimum mandatory, terms.

Thus, there was no doubie
enhancement, because subsection (2)
does not increase punishment, it
provides for a minimum mandatory
term .of imprisonment. The DCA
affirmed Rasley's conviction and
sentencings.

Tucker v. State, 29 Fla.L.Weeldy
01702 (2ad DCA 7123/04)
Prisoner Tommy Tucker's
case revolves around the issue of
abuse of discretion by the trial court
to refuse severance of his felon-inpossession-of-a-firearm cbarge&Om
his remaining charges at. trial
It was claimed by the victi~
Jason Pinion, that after a verbal
argument between himself and
Tucker, Tucker pulled out a handgun
and flJ'ed a bullet that hit the ground
beside Pinion's feet.
Subsequently, Tucker was
tried and convicted of carrying a
concealed flJ'earm, aggravated assault
with a firearm, and felon inpossession- of- a -firearm. Tucker
appealed .and argued, along with
another issue, that the trial court
erred in refusing to sever the offense
of felon -in -possession-of-a-fireann
.from trial of the other offenses when
requested.
The Second District
Court ofAppeals (DCA) agreed.
. Although a trial co~ has
discretion to grant or deny a motion
for severance, that discretion has
been' sharply curtailed when' it
concerns a request to sever a charge
of felon-in··possession-of..a-fU'eal1ll.
Introducing to the jury prior
convictions into evidence, which
would be the case in such a charge,
causes prejudice to the Defendant.
Thus, as Tucker showed, the
severance was a necessity in order to
achieve a fajr determination of his
guilt or innocence of the other
offenses.
.
Based on the findings of the
DCA, Tucker'~ case was reversed for
new trial and the trial court instructed
to sever the charge of felon-inpossession-of- a-firearm from the
other charges.

Florida Prison Legal P"enpectives
Nichols v. Slale, 29 FIa.L.Weekly D
1661 (STH DCA 7/16/04)
Following an unSuccessful
direct appea~ Kevin Nichols filed a
Florida Rule of Criminal Procedure
3.8S0 motion maintaining that his
plea was involuntary.
Because he did not file a
timely post-sentencing motion to
withdraw his plea. the trial court
denied his motion and Nichols
appealed.
The Fifth District Court of
Appeals ruled that the trial court
correctly denied Nichols' motion
because any involuntary plea claim,
when a previous motion has not been
made. to withdraw a plea. must be
based on ineffective assistance of
counsel, which Nichols failed to
assert. (See: Barnhill v. Slate, 828
So.2d 40S (Fla. Sib DCA 2002).
The DCA therefore affarmed
the trial court's denial of Nichol's
motion. It was also noted by the
DCA that the crime Nichols pled to
was a first degree felony but the
judgment showed a conviction of a .
second degree felony. The DCA
further ordered a remand for the
correction ofthe clerical error so that
the judgment reflected tU'St degree
felony, not second degree felony.-as
Roth v. Crosby, 29 FIa.L.Weekly
DI6S2 (2d DCA 7/16/04)
Joseph. Henry Roth, a state
prisoner at Polk Correctional
Institution, sought review of the
Florida Parole and Probation
Commission's (FPPC) decision
regarding his presumptive parole
. release date by filing a petition for a
writ of habeas corpus in the Circuit
Court for Polk County.
On appeal, the Second
District Court of Appeals (DCA)
specifically explained that the
appropriate vehicle for challenging a
presumptive parole release date is a
petition for writ of mandamus
directed against the FPPC. The
mandamus petition must be filed in
the Circuit Court of Leon County,
where the FPPC is headquartered.

distribution, fU'St-degree murder and
.The DCA further ruled that
the Polk· County Circuit Court
the factual circumstances did not
applied the correct law in denying
support any jury argument relying
upon the jury instructions of
Roth's petition without prejudice for
Roth to tile the appropriate vehicle in • excusable 'or justifiable homicide.
The DCA further noted in
the appropriate court.
Roth's timely notice of
Guardiola's case the portions of the
trial record that were before them
appeal was treated as a petition for a
writ of certiorari by the DCA and it
established Guardiola, who was in no
. danger nor under threat of any kind,·
was denied. -as
intentionally fired, unprovoked, on
Guardiola v.. Stale, 29 Fla.L.Weekly
the victim's car, and that Guardiola's
defense at trial was that the State did
D1650 (2d DCA 7/16/04)
not establish that he was the shooter.
Jose Guardiola brought a
petition to the Second District Court
-as
of Appeals
(DCA)
alleging
ineffective assistance of his appellate
Sigler v. Slale, 29 Fla.L.Weekly
DI642 (4th DCA 7/14/04)
counsel for failing to raise on direct
This case was back from the
appeal the issue of trial court's
failure to instruct the jury on
Fourth District Court of Appeals'
definitions of excusable and
(DCA) on remand from Siler v.
homicide"
which
Slate, 80S So.2d 32 (Fla. 4 DCA
justifiable
constituted a fundamental error.
2001). review denied, 823 So.2d 126
(Fla; 2002).
Guardiola was charged with
Briefly, . the background of
attempted second-degree· murder
with a firearm but was convicted by
this case involved Jay Junior Sigler
being charged with a first-degree
jury of the lesser included offense,
felony murder that took place the day
aggravated battery.
Regarding
Guardiola's
after Sigler escaped from prison with
the aid of his friend Michelson. While
petition, the DCA looked to a prior
,Michelson was driving a vehicle,
case it had decided upon that
mirrored Guardiola's, Damoulakis v.
with Sigler as passenger, coming
Stale, 814 So.2d 1204 (Fla. 2d DCA
from an overnight hotel refuge.. they
were seen by police who gave a
2002) In Damoulalcis the DCA held
chase at high speed. Subsequently,
that trial courts are required to
instruct the jury on excusable and
the vehicle that Michelson and Sigler
justifiable homicide in all murder
were in collided with another, killing
and manslaughter cases. The failure
its driver. A jury convicted Sigler
to do so, as was the case in
however, only of the lesser included
Damoulakis, does constitute a
offense ofsecond-degree murder.
In his original direct·appeal
fundamental error. Therefore, the
DCA granted Guardiola entitlement
Sigler argued that the evidence waS
to a new appeal.
insufficient to convict him of seconddegree murder. Sigler contended that
It should be regarded,
however, in note number 2 of
he was not the driver or owner, and
Guardiola, the DCA noted that since
was not in control of the vehicle, so
the issuance of Damoulalcis it created
there was no evidence that he
an exception to the rule of giving the
harbored any "ill wil~ hatred, spite,
or evil intent," the meaning ~for the
instruction to the jury in all murder
and manslaughter cases. In Pena v.
term "imminently dangerOus to
another and evincing a depraved
State, 829 So.2d 289 (Fla. 2d DCA
mind regardless of human life." See:
2002), the DCA held that it was not
fundamental error to omit the
Duckett v. Slate, 686 So.2d 662, 663
excusable or justifiable homicide
(Fla. 2d DCA 1996). The DCA
agreed and considered that Sigler
instructions where the defendant was
charged and convicted of drugcould be convicted then of third-

Florida Prison Legal Perspectives
degree felony murder. The DCA
reasoned . this because as an
underlying felony offense, an
element to the offense, he could have
been found guilty as an aider and
abettor
in
his
accomplice's
perpetration of the crime of
harboring Sigler himself as an
. escapee. ,Sigler argued that such a
theory was absurd Still, the DCA.
directed the trial court on remand to
enter a conviction for third-degree
felony murder.
The trial court obeyed the
DCA's mandated order and Sigler
argued that he was entitled to a
discharge on the grounds that such a
conviction would be illegal. The
jury had not found him guilty as an
aider and abettor of harboring an
escapee. Over Sigler's objection the
trial court carried out the DCA's
ordered' instruction and convicted
Sigler of third-degree felony murder
and Sigler appealed, a second-time.
In the second appeal the
State argued that in the fll'St appeal
the DCA directly confronted whether
the conviction for third-degree felony
was proper and it is the law of the
case, citing Green v. Masey, 384
So.2d 24. 28 (Fia. 1980) ("All points
of law which have been adjudicated
become the law of the case and are,
except in exceptional circumstances,
no longer open for discussion or
consideration
in
subsequent
proceedings in the case.tt)
Sigler however, responded
with equally well known law that
appellate ~ourts have the power to
correct significant mistakes in spite
ofthe law of the case doctrine, citing
Zolache v. Stale, 687 So.2d 298, 299
(Fia. 4111 DCA 1997). In Zolache it
was held that appellate courts have
the power
reconsider and correct
erroneous rulings, .in spite of the fact
that such rulings have become law of
the case, where reliance on previous
decisions would result in manifest
iqjustice. Sigler contended that the
conviction for a crime that is barred
by law is a manifest injustice,
requiring· relaxation of the finality of
the DCA's previous decision.
0

to

The State still maintained
their contention by citing section
924.34, Florida Statutes, which
a~thorizes an appellate court to order
a conviction on a permissive, lesser
included offense. Also the State
cited l T. v. Slate. where it was held
that statute allowing appellate court
which· determines that evidence does
not prove charged offense, but does
support guilt of lesser included
offense, to reverse judgment and
direct trial court to enter judgment
for lesser offense, applies to both
necessary lesser included offenses
and permissive lesser included
offenses.
Sigler
continued
his
argument in that not all of the
statutory elements of third-degree
felony murder are subsumed within
the greater offense of second-degree
murder because each crime has an
element that the other lacks. Sigler
based the- illegality of the conviction
on Apprendi v. Jew Jersey, where it
was held that every fact necessary for
a conviction is required, other than
criminal history, to be submitted to a
jury and determined by the jury
beyond a reasonable doubt Sigler
aptly placed in his brief that the DCA
"may have found sufficient evidence
of harboring an escaped prisoner. but
no jury has made such a finding."
The DCA agreed that Sigler could
not be convicted of third-degree
felony murder.
Regarding
the
State's
argument .on the issue of state
statutes, the DCA, responded that
state statutes do not control over
United States Supreme 'Court
decisions on matters of federal
constitutional law. It's the other way
around. Apprendfs holding as to the
'meaning of the Sixth Amendment
right to trial by jury in criminal cases
is binding on the courts. It makes
clear that criminal convictions
depend on jury findings as to each
element of the crime. The element of
aiding and abetting the predicate
crime of h8rboring an escapee was
erroneously determined by the DCA •
in Sigler's first appeal.
On no

o'
account can the jury's findings of
guilt for second-degree murder be
deemed to include any finding on
that offense either.
The DCA further noted that
.Apprendi was decided after I. T.. and
while ·the DCA wrote their opinions
in Sigler'S second appeal Blakely v.
Washington, 17 FIa.L.Weekly Fed
S430a (6/24/04). was being released
Blakely makes it even more apparent
the
importance
of a
jury
determination as to each element of
the crime and that the judge·s
authority to sentence' derives wholly
from the jury's verdict
The DCA stated that the later
decisions make it clear beyond any
doubt that section 924.34. FIa.
Statutes as interpreted in I. T. is
contrary to the Sixth Amen~enl In
other words. under that circumstance
the DCA in. Sigler expressly held the
statute invalid under the United
States Constitution.
Sigler's case was reversed
and remanded for a new trial. -as

Clark v. Slate, 29 FIa.L. Weekly
D1622 (2d DCA 7/9/04) .
Shannon
Clark
was
convicted and sentenced having the.
Prison Releasee 'Reofender Act
(PRRA) applied to his case
retroactively.
Clark allegedly ,committed a
burglary and an attempted burglary
on March 19. 2001. There was no
, evidence shown that the dwellings
burglarized and attempted to be
burglarized were occupied.
On· appeal the Second
District Court of Appeals found that
the provisions the trial court. ~
,which extended the statute, section
775.082, Fla. Statutes (2002), to
include burglary of unoCcupied
dwellings did not become effective
until July I, 2001. (Chapter 1-239,
section 1, at 2192, Laws of Florida.)
The trial court erred in
applying the amended version of the
statute to Clark's case because it was
not
inacted
to
be applied
retroactively. Therefore, the Second
District reversed Clark's sentencing
25

Florida Prison Legal Penpeetives
~aJid

remanded his case for,
resentencing under' the laws that
, were in effect at the time his offenses
were committed. -as

Walker
\I.
Fla.
Parole
Commissioners, 29 Fla.L.Weekly
01600 (4lb DCA 7nt04)
Donald
Walker
sought
certiorari review of a circuit court's
order denying his petition for writ of
, mandamus where he challenged
decisions of the Fla. Parole
.Commission that suspended his
"presumptive parole release date. The
'clrcuir court denied Walker's
mandamus, not on the merits of his
Challenges, but rather because
.Walker did not take a direct appeal
::of the Fla. Parole Commission's
.decisions. On certiorari review, the
Fourth District Court of Appeals
.(DCA) ruled that the lower court
,failed to apply the correct law in
their denial.
Iurisdiction of the district
'courts of appeal to entertain direct
appeals by parolees and prisoners
from final orders of the Parole
Commission was eliminated in 1983.
The proper remedy is by petition for
,an extraordinary writ tiled in the.
circuit cOurt. (Chapter 83 - 78,
section 1 at 258, Laws of Florida).
The DCA noted that while there is
no thirty-day time limit for
challenging orders by the Parole
.commission in extraordinary writ
petitions, the question of timeliness
may be raised by the affirmative
defense of laches. Johnson \I. Fla.
Pmole Commission, 841 So.2d 615
(Fia. 111 DCA 2003)-as •

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II

=:II

co - On

July 21, '04, prisoners
rioted and set fires at a privatelyoperated prison in Olney Springs,
Colorado. The riot, which last five
hours, involved several hundred
prisoners, left 13 injured, and
destroyed a living area at the
Crowley
County
Correctional
Facility. The facility is run by
Corrections Corp. of America (CCA)
and held 1,125 prisoners, 807 from
Colorado, 198 from' Washington
State, and 120 from Wyoming.
Officials stated the riot may have
been gang-related.

DE - The Associated Press reported
Sept. 20, '04, that Cassandra Arnold,
27, a senior prison counselor at the
Delaware Correctional Center, who
was taken hostage and raped by a
prisoner in July, has went public
about the ordeal and is harshly
criticizing the Del. DOC. Arnold,
who was hostage for seven hours and
released after her attacker, serial·
rapist Scott Miller. 45, was shot to
death, lashed out at the DOC, saying
it is plagued by mismanagement and
inadequate,
often
incompetent,'
stafTmg. Arnold said three guards
who were present when Miller
grabbed her did nothing to stop him
before he barricaded himself in her
office. She also said she was raped
after the warden, Thomas Carroll,
repeatedly refused Miller's requests
to speak to him. Instead, Carroll sent
Miller a one sentence note saying he
would only talk with him after
Arnold was released, Arnold said
this infuriated Miller who then
bound and raped her saying he had
"nothing to lose."
Arnold told
repoJ:ters at a press conference in
mid-Sept that, "I felt abandoned, like
no one, cared at all," she said,
weeping. "The way this sy'stem
works needs to be stopped and
changed," Arnold said.
"People

need to get rid of inadequate. and
incompetent staff and put ': 'in
managers
who
hold
people
accountable, who train people
properly, ,who are intelligent and
who have respect for each other."
Unfortunately, it was not reported
that Arnold had done anything to
expose or change the system before
the reality of it so severe'ly impacted
her life.

KY - On Sept. 14, '04, nine
prisoners at the private prison Lee
Adjustment Center in Beattyville,
Ky., started a riot by trying to tear
down a wooden guard tower. The
prisoners, including four 'from
Vermont who had been outsourced
to be housed in Kentucky, broke in
the prison canteen and threw items to
other prisoners before a general riot
erupted culminating in three
buildings being set on fire. The
Corrections Corp. of America runs
the private facility. The center holds
about 800 male prison'ers, about 400
of whom are from Vermont sent
there to ease overcrowding in that
state. The Kentucky state police
were called in to help quell the
hours-long riot. Prisoner advocates
claim the riot was a result of recent
cuts in privileges and visiting hours
at the prison. A week after the riot,
CCA replaced the. warden at the
facility, Randy Eckman. CCA claims
it does not believe the privilege and
visiting cuts sparked the riot, but
offered no other reasons. Prison
officials say prisoners identified as
being involved are expected to face
criminal charges.

MO - On Sept. 15, '04, about 1,350
of the state's claimed most violent
prisoners. were moved to the new
Jefferson City Correctional Center.
The facility replaced the 170.yearold Missouri State Penitentiary.
Staff from other prisons, sheriff and
police departments helped with the
transfer.

.Florida Prison Legal Penpeetives
MT - A husband and wife team who
run a prisoner re-entry program for
former prisoners starting traveling
.throughout Montana in August '04 to
help register ex-felons to vote. The
team, Eddie and Casey Rudd, run
Corrections, the re-entry program,
that received a $5,000 federal grant
th~s year as part of the Help America
Vote Act education campaign.

National - In early Oct. '04 it was
reported that the widow of Martin
Luther King, Jr., said all felons
should have the right to vote. Coretta
. Scott King said winning that right is
part of the unfinished business of the
civil rights movement at an NAACP
event in Maine. King praised Maine
and Vermont as the only states that
allow prison inmates to vote in
elections.

National - A new report released .
during Sept. '04 by the U.S. Bureau
of Justice Statistics shows that the
nationwide local jail population in
2002 was 665,475. The estimated
racial breakdown of those people
was 40% Black. 36% White, 19%
Hispanic, 3% mixed race, 1%
American Indian and 1% Asian.

National - The U.S. has 5 percent of
the world's people, and 25 percent of
its prison population.
[Source:
The New York Times
Magazine]

National
Some states are
reconsidering what was suppose
have been a money-saving measure,
outsourcing a portion of their state
prisoners to be housed in facilities,
usually privately-operated, in other
states. Wyoming has plans to bring
aU 550 of its displaced prisoners
back by 2007. Arizona. which has
over 2, I00 prisoners in private
facilities in other states, is

withdra\ying 400 prisoners from an
Oklahoma prison after a riot there in
May injured dozens.
Hawaii is
scrambling to find housing for 1,000
in mainland
prisoners currently
facilities. Wisconsin officials say
they hope to have all but 500
prisoners back in the state by year's
end, that's down from the 4,400
outsourced
four
years
ago.
Connecticut announced plans to
.retrieve 400 of its prisoners from
Virginia state prisons after the state
had to payout more than $2 million
to family members of two prisoners
who were killed in Virginia.

company in her hometown of
Norristown on July 29. '04. She had
jumped bond on charges that she .
locked her 3:-year-old daughter in the
trunk of her car in a'prison parking
lot while she went in the prison to
visit her husband in Aug. '03: The
child was found in the trunk after
about 40 minutes when guards heard
her crying. •

NJ - During Aug. '04 state parole
officials denied parole to a former
member of the' Black Liberation
Army who was convicted of killing a
New Jersey state trooper in 1973.
Sundiata Acoli., 67. is serving a life
sentence.
Parole officials cited
Acoli's prison writings as a reason
for denying him parole, they say the
writings advocate violence.

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.,

NY - Anthony Serra, the former boss
of Rikers Island, was indicted on
of
forcing
felony
charges
subordinates to work on political
campaigns and for stealing more
than $60,000' from Gov. Pataki's
2002 re-election bid. Serra pleaded
innocent at his arrangement Aug. 12,
2004.
NV - High Desert State Prison was
locked'down July 14. '04, after a riot
left one prisoner fatally injured and
18 others hurt from thrown rocks.
The riot lasted approximately 20
minutes, say officials. and W3S
quelled when guards fired shotguns
toward the 60 prisoners involved in
the disturbance.

PA - After two months on the run,
Tammy Swittenburg-Edwards, 31.
was captured by a bail bond

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. Florida Prison Legal Penpectives

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

,

NEW LAWS, 2004 LEGISLATIVE
SESSION
•r

"" ' Prisoners - Frivolous Actions Disciplinary Proceedings
Prisoners-S.B. No. 1596 passed. The Act amends section
944.279 (l) and (2), Florida Statutes.
In subsection (1) the Act amends to specify in
addition to a prisoner who is found by" a court to have
brought a frivolous or malicious suit, action, claim,
proceeding, or appeal in any Florida State or. Federal
Court filed after June 30, 1996. to include collateral "
criminal proceedings filed after September 30, 2004, as
also being subject to disciplinary procedures pursuant to
the rules ofthe Department of Corrections.
[Note: The Florida Supreme Court defined a collateral
criminal proceeding in Hall v. State, 752 So.2d 575 (Fla.
2000), as 3.850 and the appeals regarding such filings. In
Saucer v. State, 779 So.2d 261 (Fla. 2001), it was held that
a writ of habeas corpus that challenges a sentence is also
. considered a collateral criminal proceeding.]
In subsection (2) of the Statute, where it specifies
what proceedings section 944.279 does not apply to, the
words "or a collateral criminal proceeding" have been
struck out The subsection still indicates that section
944.279 does not app~ to a criminal proceeding relating
to the original proceeding up to its direct finality.
The ,Act took effect October I, 2004. Chapter
2004-285, Laws of Florida.

(monthly) billing cycle, a hold will be placed on the
inmate's account to collect the processing fee when
available. The effective date .of this law was July I, 2004.
Chapter 2004-248, Section 21, Laws of Florida.
[Note: West Publishing Company, misprinted the above
session law in the 2004 West's Florida Session Laws,
Pamphlet No.4. FPLP staff checked with the Florida
Department of State upon noting West's misprint, and the
DOS verified that there was no error in this law as it was
filed with their department. The FDOC has reportedly sent
an accurate copy of the entire law to all prison law
libraries that is available for prisoners to review upon
request.]

COURTS--FEES--ATTORNEYS

CORRECTIONAL INSTITUTIONSADMINISTRATIONS-CONTRACTS
Correctional Institutions-H.B. 1875 passed. The
bill amends section. 944.516 to add paragraph (h) to
subsection (1 ), Florida Statutes, to allow the Florida
Department of Corrections to charge all state prisoners an
administrative processing fee of up to $6 per month for
inmate banking services. Such fees shall be deposited into
the department's Grants and Donations Trust Fund and
shall be used ,to offset the cost of department operations. If
an inmate's account has a zero balance at the end of the
ZI

In law it is-good policy neyer to plead what y'oil'"
need n04 lest you oblige yourself to prove what . .
you can not.
Abraham Lincoln 1848

.. "

Florida Prison Legal Perspectives

Death Sentences Decline,
Exonerations Continue
ccording to a report released mid-September '04 by
the Death Penalty Information Center, a group
opposed to capital punishment, the number of death
sentences handed down by juries has. dropped almost 40%
nationwide since the 1990s. The report notes that in the
199Os, an average of 290 people received death sentences
each year. However, according to statistics, since then the
average has dropped to 174 per year. The report credits
the drop to increasing public awareness· of death row.
exonerations from DNA testing and fears of sentencing an
innocent person to death. Prosecutors, on the other hand,
credit the drop to a decline in cases involving aggravated
murder and the high cost of death penalty prosecutions
causing the state; to seek fewer death sentences.
DNA testing is also leading to more non-death
penalty exonerations. In August '04 two men, one in
Georgia and the other in Florida, were exonerated by the
new testing of DNA evidence.
. Clarence Harrison, 44, who spent 17 years in
Georgia prisons for the 1986 rape, kidnapping and robbery
of a female hospital worker, was freed after DNA testing
ofthe rape kit used as evidence to give him a life sentence
showed Harrison did not rape the victim. When released,
Harrison said outside the courthouse, "I think I had given
up years ago. I think God just carried me on through."
On August 12, 2004, Wilton Dedge, 42, walked
out of the Brevard County Jail in Cocoa, FL, after
wrongfully spending 22 years in Florida prisons for a rape
he didn't commit Dedge was freed after DNA testing of a
semen sample taken from the 17-year-oldvictirn in 1981
showed Dedge did not commit the crime. Although eight
witnesses had testified at Dedge's trial that he was at work
miles away at the time of the alleged rape, and the
victim's description of her attacker did not match Dedge,
state prosecutors convinced a jury to convict him, in part
based on "scent evidence provided by a police dog."
JailhoUse snitch Clarence Zacke, had also testified against
Dedge after· making a deal with prosecutors to reduce his
conspiracy to commit several murders sentence from 108
years to 60 at a second trial against Dedge in 1984, where
he was again wrongly conviet~ ofthe rape. The victim is
said to be "devastated by the news" that Dedge was not
her attacker.
Just hours after being releaSed, after spending
more than half of his life in prison, Dedge reflected, "I
never got to have kids. I never got to get ~rried. Now
I've got to start and I've got nothing...Going through all
this, 1lost a lot of faith in people." -

A

Outside the WaU
fter spending 22 years in prison, Wilton DOOge
A
now outside the wall after DNA evidence exonerated
him. But the silence from public officials speaks volumes
is

about how our .system of justice has failed and continues
to fail by sending innocent men. and women to prison.
And not surprisingly, Florida leads the nation in wrongful
convictions. But why?
A University of Michigan review of .328.
exonerated prisoners nationwide, published in 2003, found
eyewitness error in nearly two-thirds of the cases. The
Michigan study found that perjury by cO-defendants,
snitches, and police informants was the leading ca\llie of
false murder convictions. False convictionS, the Michigan
study found, may well be at least as common for other
crimes of violence, especially robbery. Unfortunately,
without DNA, they are a lot more difficult to undo.
There are psychologists and other experts who
specialize in the reasons why victims and other
eyewitneSses are stupendously wrong. Among the most.
elo'quentexperts are the alleged victims themselves.
Usually victims are questioned by law
enforcement and eye-witness experts as they relive the
traumatic experience. They become suscepbole to verbal
and nonverbal clues that can be very persuasive, which
ultimately contaminates their memory. Then six hours,
six days or six weeks later, they are put in front of photos
and all of a sudden your contaminated memory makes an
incorrect determination, which ultimately leads to an
arrest, trial and wrongful conviction.
Yet the last word from. the Florida Supreme Court
on this subject, six years ago, was outrageously wrong. In
a 5-2 decision, it held that it is entirely up to the sound
discretion of the trial judge whether to let a jury hear
expert testimony on the fallibility of eyewitnesses. Thelman wlJo lost that case, which depended largely on
eyewitness testimony unsupported by any other evidence,
is still serving a 30-year sentence. _

A rise in false convictions

The nwnberofprisoners cleared and released
has jwnped as DNA renqhas become more
widely available.
.

•

By DNA ~ lOW ~Derated

1989.~11411t

.

1991DM~15 .
199]~~12
.
. 1995
i?i.18KI 19
1997
:9;_17
1999
2001
. 200]
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41
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ZI

Florida Prison Legal Perspectives

u.s. Supreme Court

cocaine. While the judge had been prepared to sentence
Fanfan to 16 years under the federal guidelines by finding
to Decide Constitutionality
facts not presented to the jury concerning the alleged
quantity of drugs involved and Fanfan's alleged role as a
of Federal Sentencing Guidelines
leader in the trafficking, four days after Blakely was
decided the judge reconsidered and reduced the sentence
The first order of business when the U.S. Supreme Court
to 6 Y2 years.
started its new session on Oct. 4, 2004, was to hear oral
Although the federal sentencing guidelines (like those
. argument in two cases in which the Court is expected to
in Washington state and several other states) permit a
clear up confusion over the legality .of federal sentencing
judge to increase a sentence based on facts found solely by
guidelines that have been in use since 1987. Another
the judge, the courts in the above two cases said Blakely
,decision earlier this year by the Court has already affected
does not allow such enhanced sentences, calling into
criminal sentencing in many states that also have in effect.
question the validity of the federal guidelines. The Justice
guideline sentencing schemes.
. Department disagreed and asked the Supreme Court to
. The confusion over whether the federal sentencing
quickly provide some guidance on the issue. In a footnote
·:pidelines are constitutionally acceptable began in June
to the Blakely decision the high Court had stated that, "the
with the Court's ruling in Blakely v. Washington, in that
Federal Guidelines are not before us, and we express no
case the Court (applying the rule announced in 2000 in the
opinion on them."
case of Apprendiv. New Jersey) held that a Washington
The Justice Department, which prosecutes federal
,state defendant's constitutional right to a jury trial was
criminal defendants, wants the Supreme Court to uphold
violated where the sentencing judge, following the state's
the federal guidelines that allows judges to on their own
sentencing guidelines, used facts not admitted to by the
increase sentences if there are aggravating factors
defendant, nor found' to be true by a jury "beyond a
involved in a crime, such as drug quantity, defendant's
reasonable doubt," to impose a harsher sentence than what . role in charges or uncharged conduct. The Justice
otherwise would have been authorized. (See: FPLP Vol.
Department's position is tbat the federal guidelines are not
IO,lss~ 4, pg.19.) Apprendi had held that any fact, other
affected by Blakely because, unlike the Washington state
than a prior conviction, used to sentence a defendant to a
guidelines, the federal guidelines were not promulgated by
term longer than the statutory maximum, must be pled to
a legislature, but were promulgated by the independent
in the indictment and be found by a jury beyond a
U.S. Sentencing Commission. This is important, the DOJ
reasonable doubt, or be admitted to by the defendant.
claims, because the underlying rule in Apprendi v. New
The Blakely decision was seen as raising the question
Jersey, that was relied on in Blakely, states a sentence may
whether federal and state sentencing guidelines that allow
not exceed the statutory maximum unless a jury finds the
judges to impose longer sentences by a "preponderance of
facts that justifY an upward departure (or the defendant
'evidence," were constitutional.
admits the facts). The lawyers for Booker and Fanfan
. The Blakely decision quickly threw federal courts,
argue on the other hand that defendants should not receive
which sentence 64,000 offenders a year, into turmoil.
longer sentences for facts not considered by a jury (or
Within just a couple months of the Blakely decision lower
admitted), regardless of the sentencing scheme.
.federal district and appeal courts split on whether Blakely
Several Supreme Court justices indicated that the
meant the federal sentencing guidelines were
federal guidelines may violate the right to a jury trial as
constitutional or not. With the federal courts divided over
guaranteed by the U.S. Constitution at the Oct. 4 hearing. .
the issue, and the U.S. Justice Department calling on the
Most of the justices seemed to agree that the federal
Supreme Court to clear up the confusion, the Court agreed
guidelines are likely to be struck down by their decision
to hear two federal drug cases that relied on Blakely to
on the Booker and Fan/an cases. That decision is expected
help throw federal guideline sentencing into doubt.
to come quickly, likely b~fore the end of the year. If the
In the first case, United States v. Booker, the Seventh
guidelines are struck down, there is a general feeling, as
Circuit Court of Appeals overturned the sentence of a
commented on by Justice Antonin Scalia, that it will only
Wisconsin defendant where the judge, not a jury, decided
be an interim solution that Congress will quickly address
the amount of drugs the defendant had and that the
with new sentencing laws.
defendant obstructed justice 'and imposed a 30-year
While some experts applaud these, developments as
'enhanced sentence where the federal guidelines (without
opening up the possibility of sentencing reform, others
those "facts") would' only have allowed about 22 years.
caution the alternative may be worse than sentencing
The appeals court, applying Blakely, said Booker's
guidelines as they currently exist. Congress and state
sentence was invalid because the judge, not a jury, had
legislatures may feel compelled to make every crime
.found the aggravating factors cited by the judge to
punishable by statutory minimum sentences to circumvent
enhance Booker's sentence.
the Supreme Court's actions. _
In the second case, United States v. Fan/an, a Maine
defendant was convicted of conspiring to distribute
3D

Florida Prison'Legal Penpedives
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.11'0

Blakely v. WashingtonAdditional Resources
There has been a lot of interest about the Blakely v.
Washington, _
S.Ct. _ , 17 Fla. L. We'ekly Fed.
8430, 2004 WL 1402697 (U.S. S. Ct. Jun. 24, 2004),
decision recently among prisoners. There is a lot of
information about the case on the Internet. The following resources may provide useful information about
the case:
National Assn. of
www.NACDL.org
Punch and Jurist,
www.fedcrimlaw.com

Criminal
chat

Defense

section

on

lawyers,
Blakely.

"Sentencing Policy and the Law, webblog o{Professor
Douglas Berman, http://sentencing.typepad.com
Goldstein
and
Howe,
webblog,
www.goldsteinhowe.com/bloglindex.cfm
Federal Criminal Defense Law, Attorney Daniel
Horowitz,
www.home.earthlink.netrbdegal
criminaldefenselawyerdanielhorowitz
"Aggravated Sentencing: Blakely v. WashingtonPractical Implications for State Sentencing Systems,"
by Jon Wool and Don Steman. Vera Institute report,
www.vera.org/publicationslpublications.asp
31

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