FLORIDA PRISON,LEGAL

ers ectives
ISSN# 109)..-8094

VOL ME 14 ISSUE 5

SEfI/OCT 2008

Aramark Bites the Dust

also started making FBOC staff actually pay for meals
they
ate at the prisons, albeit at minimal cost. However,
by Teresa Bums Posey
any cost was resented, for someth.ng that previously had
been mostly free. And then there was the fact that
Aramark
personnel, outsiders, _took over jobs previously
fter almost seven years of bilking state taxpayers out
held
by
FDOC
staff.
of miUions and millions of dollars by starving state
DUrin~
the
first
~ear
~er
Aramark
took
over
prison
p~soners with substandard food, on September 9, 2008, '
food service the animosity between its personnel and
pnvate food service vender Aramark announced that it
FDOC
staff be~e palpable.. At most prisons, FDOC
will terminate its contract with the Florida Departm'ent of
beg~
~ organized campaign to run the company
staff
Corrections(FDOC) to provide food ~o Florida prisoners.
out,
harassmg
its personnel and writing the company up
,
Aramark, one of the biggest -names in the nation's
for
the
slightest
deviations in food service. That situation
privatized food-service industry, was given the contract in
grew
until
orders
came down from on high, perhaps-from
200 I to feed state prisoners, replacipg the FQOC's inin~cting -FDOC staff to back off
the
governor's
office,
house food system, as one of several privatization
Aramark,
or
else.
Which
they did, but a level of
ventures started while Jeb Bush was governor. Often
resentment
remained.
"We
have
been unable to achieve
c?ticized for cutting corners to maximize profits, and
.
t~etyp~
of
partnership
consistent
wi~
our expectations for
Virtually hated by prisoners who were the victims of the
p~slt1Ve
long-term'
relationship,"
wrote
Tim, Campbell,
a
cut comers, Aramark will stop serving meals in the
preSident of Aramark Correctional Services when
prisons January 9.
"infonningthe state that the company ws pulling o~t of the
The company noticed FDOC in September that it is
contract.
,
invoking a 120-day termination clause in the contract
The relationship between Aramark and FDOC further
citing as the reasons "unprecedented''' inflation in food
deteriorated
when the department replaced Aramark with
costs and a poor working relationship with the department.
Trin.ity Food Services, another private food vender, in
From the beginning of the - contract,' Aramark's
Region II of the FDOC ,late last year. Trinity had been
relationship with the FDOC cO,uld only be described as
Aramark's main competition for Florida's prison food
rocky.
sea:v!ce. However. until last year. Aramark' had kept
FDOC employees, use to supplementing their income
Tnmty confined to providing food at only a few prisons in
with free food siphoned off of stock purchased to
South Florida under a separate contract, while Aramark
supposedly feed prisoners, were extremely resentful when
served the majority of priso~s. The Region II change-over
Aramark locked down th~t decades-old bounty. Aramark

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Conditional Release- An Infinite Web
~
: 5
Obtaining Records From Counsel
: 7
Letters
10
Notable Cases...........•.•..•...•..•. ~
~ ..............•..11·
Post Conviction Comer
:
17
DR Grievances. Appeals andJudicialRemedies
20

•

Florida Prison Legal Perspectives
on October I, 2007, almost equally divided the privatized
prison food system between Aramark and Trinity, and no
doubt reduced Aramark's profits.
On top of having its business substantially reduced,
during this year alone. the state fined AramarkS26I,OOO
for contract' violations, ranging from delays iii feeding
lines and excessive substitutions ofmenu items.
A review last year by the FDOC's inspector general
"found" that Aramark earned "windfall" profits because it
was allowed tQ serve cheaper ground turkey scraps instead
of real beef as the set recipes called 'for and because
Aramark was being paid based on the number ofprisoners
at a prison, not on the number· of actual meals served.
(Both situations which have existed ~ince Aramark began
feeding prisoners in 2001.) The inspector general
recommended that the contract be rewrote or that food
service return to an in-house, FDOC, operation.
Then in February
this year, the Campaign for
Quality Services, a joint project of the Service Employees '
International Union and I UNITE HERE, held a rally in
Miami where labor, elected and community leaders, and
prison activists, including representatives from Florida
'Prisoners' Leal Aid brpnization, Inc., also called for a
state investigation ofAramark's contract with the FDOC.
(See: FPLP, Vol. 14, Iss. 2, "Union/Activists Call for
Investigation of Aramark's Florida Prison Contract," pgs

of

S~J

.

For prison officials the issue isn't solely about stuffing
prisoners'. stomachs. Many correctional experts believe
decent food is key to good securitY and avoiding lawsuits
alleging inhumane treabnenl "Food really becomes a
security issue for us," saidFDOC Secretary Walter,
McNeil recently. Under pressure by the Legislature to cut
prison food costs by $9.3-million without sacrificing
quality, in August McNeil invited other private venders to
submit bids hoping to find a company to feed prisoners
. cheaper.
In reality, however, with Florida's newer generation of
prisoners, the relationship between food and security is
not as apparent as in the past. Aramai"k proved that Florida
prisoners will essentially' eat what people on the· outside
would consider garbage, without protest. Nasty lo()king
and tastinggtllUnd turkey scraps in almost every meat dish;
cabbage substituted for most other vegetable dishes; raw,
uncooked beans, rice and potatoes; salmonella-ladeD'
uncooked chicken that regularly caused widespread food
poisoning in the prisons; filthy trays and eating utensils,
have all been common in most Florida prisons since 2001
under Aramark. Except in a very few incidents, prisoners
largely accepted that situation, complaining among
themselves while steadily gobbling down such swill.
Afraid to file grievances or "stop the !ine," as prisoners
use to reguJarly and effectively do to obtain better food,
today's prisoners demonstrated that even for decent food
they were unwilling to stand together, as if they gave up

FIQrida Prison Legal Perspectives
every bit of pride and self-respect when they walked in the
prison gates.
And to be fair, it didn't only start with Aramark. Many
prisoners who have been in a while claim they wish
FDOC would take back over food services, claiming it
was better. Pel'haps they have forgotten the frozen egg
salad filled with egg shells, the purple and green slabs of
slimy turkey corn "beef," the un-chewable "roast bee!;"
the date-expired turkey burgers. Maybe it slips their
memory when they were expecting to get roast turkey or
ham for a holiday, only to learn the load of ham and
turkeys went out the back gate and were later distributed
to staff. And maybe they don't remember that with the
FDOC they never got fresh salad, fruits, ,?r fruit juice.
The contract with Aramark was deliberately written to
allow the company to make "windfaU" profits, at the
expense oftaxpayers' pockets and prisoners' health. It took
seven years and a tightening of the state budget before it
was decided that Aramark had done enough damage.
Whether what comes next is any better (or wo~e)
remains to be seen. It may be that Trinity will take over
food service for the entire moc, which is a step up from
Aramark. If other companies get involved, underbidding
to be the cheapest, things may go further downhill. In that
case, unless prisoners work together (as they use to do) to
ensure decent food for all, it may be another seven years
before FDOC says, "Oh: we just found out that this isn't
right." ,

•

CaryF.Rada

THE DALEY LAW OFFICE, P.APost Conviction

Parole

Appeals
Biennial
Extraordinary Writs
Credit
State" Federal Habeas.
Revocation
Score Sheet Issues
aemency
Dedicated to Aggressive Criminal Defense

Board Certified Criminal Trial Lawyer
Former State Prosecutor

901 North Gadsden Street .Tallahluee, FL 32303
(850) 124-5813

www.dal~llw-omce.com

POST-CONVICTION' SERVICES
•
•
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3.850 Motions
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Federal Habeas Corpus
State Habeas' Corpus
Appeals
NewTrials

·613·
CEImFIED

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CRIMINAL TRIAL lAW •

Cary F., Rada, P.A.
318 North Texas Avenue
Tavares,FL 32778
352-742-2778
E-Mail: info@CaryRada.com

Florida Prison Legal Perspectives

Repatitise

New Priso.. to Prepare
Prisoners for Re-entry

A

by Mark V. Miller

juvenile correctional facility in Polk County was
he latest estimate is that 40% of the prison population
closed earlier this year and turned over to the Florida
is infected with the Hepatitis C virus. Unless you
Departmentof Corrections to become a state prison meant
specifically ask to be tested for ,Hepatitis C virus. the
to prepare adult state prisoners for successful re-entry into
FDOC will not include that test in any routine blood work.
There are no outwardly apparent symptoms 'of this
. society.
,
The former Polk Juvenile' Correctional Facility will
disCll$e until it is virtually too late to,treat. The death from
reopen before the end of this year as the Demilley
this disease is lingering and horrible. The liver stops
Correctional Institute. It will serve as Florida's first prison
filtering because of cirrhosis ,(scar tissue) aqd the normally
specifically designed .with the goal of reducing Florida's
eliminated toxins leak out of the liver. These fluids begin
almost 50 percent recidivism rate since the 1970s.
collecting in your abdomen. Your body then begins to ~hut
"Investing mo~ey in~o programs of this type will _ down and it becomes a slow poisoning ofyou,r system.
enable us to avoid the tremendous costs associated with
If you have' ever shared a. needle. had tattoos done in
building more prisons." said. FDOC Secretary Walter
prison. or shared a straw or similar object snorting drugs.
McNeil. The' politically popular "lock 'em up and throw
you may' have been exposed. Unless you are tested the
away the key" approach to crime is not being tough on la~
FDOC is under no obligation to diagnose or treat this
and order. its being' financially irresponsible. McNeil. a
disease. The treatment is very expensive and with
former police chief and head of the' Department of
everything being based on money, budget cuts. and cost
Juvenile Justice. said earlier this year. He also said that it
efficiency-it is cheaper to bury you. .
has been proven that the "lock 'em up..." policy doesn't
The treatment is generally 48 weeks with weekly
~ork that it only increases crime and increases the burden '
injections of pegylated interferon and twice daily capsules
on taxpayers.
.
.
of Ribavirin. Many stop treatment due to side effects.
Demilley CI will house close to 400 prisoners once it is
They are very similar to having a sevo-e flu: aches, pains, .
fully up and operational. It will only take prisoners who
fatigue, nausea, weakness, headaches. temporary hair loss
are within three years of release and who. before they will
and anemia. The treatment is serious for a serious disease.
be sent to the prison. have proven they are willing to
The treabnent's side effects are nothing compared.to the
effects of the disease and liver failure. The treatment lasts
reform.
about a year but the horrors ofthe disease sometimes takes
Once prisoners go' to Demilley, some will .be able to
take part in work release. All of them will also be offered
several years before you are finally confined to the
drug and alcohol rehabilitation. education and job training,
hospital bed dependent on others for 'all your needs. Not a
picturesque way to free up a bed for the DOC. Once you
and counseling.
, "We have devised a plan. and we ~ supervising the
reach the terminal stage there is no more money to be
building and the re.building of these individuals." said
spent on your health care.
Franchetta Barber, a top FDOC administrator.
Scary? You bet! I've .watched many friends lose the
"We believe this is a get smart opportunity for the state
battle because t1iey did not learn ofthe disease until it was
too late to effectively treat Ask around, read up on it,
of Florida," McNeil said.
.
State prison officials have said that, over the next five
become informed. Get tested. Be persistent with following
years. Florida plans to spend more than $2-billion, to build
up on test results. Ask to see the lab results. Once
new prisons. McNeil just doesn't believe Floridians can
diagnosed your liver enzyme levels must be monitored;
afford to do that. Agreeing with his predecessor as head of
These tests'. indicate the rate at which your liver is dealing
with the disease. Numbers should be below SO-double or
the FDOC•. Jim McDonough. McNeil replaced earlier this
triple that shows damage is going on and it only
year, McNeil has called for major budgeting.for mental
health. job training, drug programs and increased basic
progressively worsens.
.
Proactive is a great word. Unless you do something for
education in the state's prisons. he is hoping that if the
Demilley facility is successful, that some of. the J;lew
yourself no one else will. Don't wait until you are dying to
wonder why. Get tested - get treated... your choice. The
.prisons to built will be modeled after it.
earlier you are treated the better your odds' of recovery.[Sources: Bay News Ch. 9; Fo~ 13. Tampa Bay.] _
The FDOC policy is to· llmonitor" you. This only allows
the disease to' worsen and decreases your chances of
recovery. Get tested-get treated. Ii
4

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Florida Prison· Legat Perspectives
2001-124, § 5, Laws of Florida (Amended), Effective July
. .
1,2001.
The DOC and the Commission each have
responsibilities under the Conditional Release Program
by Dana Meranda
Act. Broadly speaking, the Parole Commission's functions
are discretionary and quasi-judicial. As an inmate of DOC
approaches his 'release date, 'the Commission deteonines
he Conditional Release Program Act was created in
.
1988. See Ch. il8-122 § 19, Laws of Florida.
whether to place the. inmate on Conditional Release, as
Conditional Release is a creature of .statute. Section
well as the conditions thereof. To aid the Commission in
947.1405(2), Florida Statutes (1988), (Supp), provides in
this function, the DOC is charged with interviewing the
pertinent part, Conditional Release applies to:'
.
inmate, compiling relevant records,~ an4 making
recommendations that the Commission is free to accept or
(2Xa) , Any inmate who is convicted of a crime
'reject Once the Commission makes its determinations, the
DOC is charged with explaining the conditions to the.
committed on or after October I, 1988, which crime is
• contained in Category 1,2,3, or 4 of Rule 3.701 and Rule
inmate and supervising him or her during the period of
Conditional· Release. § 944.09(4)(h), Fla. Stat.; Fla.
3.988 Fla.R Crim.P. (1993), and who has served at least
one prior felony. commitment . at a State ~r FedenU
Admin. Code, Chap. 33-302.109. Probation and Parole
COJTeCtional Institution;
.
'Field Services .is the DOC entity responsible for
supervising offenders on, Conditional Release. See: DOC
. (b) Is sentenced as a Habitual or Violent Habitual
Offender or a Violent' Career Criminal purSuant to .§
v. Williams, 901 So.2d 169, 170 (Fla. 2= DCA 2005).
Similarly, Chap. 33-302.111, Fla. Admin. Code and
715.084· or;
(c) Is found to be a sexual predator under § 775.021 or
F.D.O.C. Procedure 302.325(2), outlines the criteria for
early termination of supervision.
former § 775.23 ...
shall, upon reaching the tentative. release date or
The Commission is authorized to establish the length
provisional release date, whichever is .earlier, as
and conditions of the supervision, as long as the length
established by the Dept. of Corrections, be released under
does not exceed the maximum penalty imlosed by the
supervision pursuant to § 948.09, Flori.da Statutes. Gove v.
sentencing court. Crosby v. Bolden, 867 So.2d 373, 374
F.P.C., 816 So.2d 1150, 1152 (Fla. 1st DCA 2002).
(Fla. 2004).
The Commission may impose any special conditions it "
Under the specific authority of §§ 947.07 and 947.20,
.considers warranted from its review of the release planFla. Stat. (2006), the Parole Commission's own rules
and recommendation. § 947.1405(6), Fla. Stat. (2006).
concerning Conditional Release
contained in Ch. 23If the Conditional Release is revoked and the releasee
.23, Fla. Admin. Code. .
.
is returned to prison, the" DOC" may declare a forfeiture of
As stated.in Evans v. Singletary, 737 So.2d 505, 507
an"gain-time earned up to the 'date of release. Frederick v.
McDonough, 931 So.2d 1005 (Fla. 3rd DCA 2006);
(Fla. 1999), "Conditional Release (as·opp~sed to Control
Release, Provisional Credits, ~d Administrative GainDuncan v. Moore, 754 So.2d 708, 710 (Fla. 2000). see: §
Time), is not an early release program. Conditional. 944.28(1), Fla. Stat. (Gain-Time Forfeiture Statute),
Release is an extra post-prison, probation-type program.
provided, in subsection (1) for Conditional Release. See:
Ch. 88-122, § 9 Laws of Florida (effective July I, 1988).
In other words, when an inmate is released due to gaintime from a sentence that is eligible for Conditional
West F.S.A. § 944.28, Historical and Statutory notes.
Release, instead of going free as other offenders would do
A~ptance of Conditional Release did not constitute a
(Unless they have probation or some other supervision 'to
waiver of his rights to object to the impropriety of
follow) these offenders are placed on supervision for the
applying the provisions of § 947.1405 (Conditional
amount oftime equal to the gain-time they have accrued."
Release Program Act) to him. Gove v. F.P.C.~ 816 So.2d
According to FDOC Annual Report, FY 2005-2006,
I1s0, 1153 (Fla. rlt DCA 2002).
(Prison AdmissionlIntakes) there were 2,153 Conditional
To be entitled to relief when the Parole Commission
fails to' conduct a conditional release revocation hearing
Releases returned to prison on technical violations alone.
within the statutorily mandated time period (45 days), the
Conditional Release applies to all qualified 'offenses
committed' on or after October I, 1988. Westlund v.
releasee must show that he was. prejudiced by the alleged
delay in addition to showing the statutory vio.lation.
F.P.C., 637 So.2d 52, 53 (Fla. 1st DCA 1994).
Section 947.1405(2), Fla. Stat. (1989), provides that,
Gillardv. State, 827 So.2d 316, 317 (Fla. 1st DCA 2002).
The Parole Commission has the authority to either
"if an inmate has received (imposed by the court) teon
grant or deny a 'Releasee credit for the time spent on
of probation or community control supervision to be
served after release from incarceration, the period of
Conditional Release when that release is revoked due to a
violation ofthe teons and conditions of release. Rivera v.
probation or community control must be substituted for
the Conditional Release supervision." Jefferson v. State,
937 So.2d 833, 834 (Fla. 41h DCA 2Q06), but see: Ch.
5

*ConditionaIRelease*
.An Infinite Web

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Florida Prison Legal Perspectives
,/

'Singletary, 707 So.2d 326 (Fla', 1998); Gay v. Singletary,
700 S02d 1220-21 (Fla. 1997).
Parolees do not have an automatic right to counsel in
revocation lroceedings. Mattern v. F.P.C., 707 Sc.2d 806,
.
808 (Fla. 4 DCA 1998).
. Only a willful. violation 'of a substantial· condition of
parole .or probatiqn, which involves a factual finding,
Mathis v. F.P.C., 944 So.2d 1182-83 (Fla. I" DCA 2006);
Williams v. F.P.C., 949 So.2d 1180-81 (Fla. 1" DCA
2007).
HearsayaJone is not sufficient to sustain the revocation
of parole. West F.S.A. § 120.57(1)(c). Me"i" v. Crosby,
893 S02d 589, 599 (F.la. 111 DCA 2005).
The Parole Commission is not at liberty to reweigh the
evidence considered by the hearing examiner in order to
find a violation where the examiner's finding to the
contrary is supported by "competent substantial evidence."
Me"i" v. Crosby, 893 So.2d 598-99 (Fla. III DCA 2005);
Tedder v. F.P.C., 842 S02d 1022, 1025 (Fla. III DCA
2003)~

Neither the Florida Statutes nor Florida Administrative
Code provide for administrative review or appeal of the
Parole Commission's action. Williams v. F.P.c., 718
S02d 331, 332 (Fla. 2nd DCA 1998); Ramosv. State, 834
S02d 257 (FI,. 211d DCA 2002).
Section 120.81 (3XA), Fla. Stat. (2006), precludes
parolees from seeking review by appeal of orders of the
Parole Commission that rescinds or revokes parole. Mabre
v. F.P.C., 858' So.2d 1176, 1181 (Fla. 211d DCA 2003). See
also: Sheley v. F.P.C. 703 So.2d 1202, 1205 (Fla. III DCA
1997), approved 720 So.2d 216 (Fla. 1998).
In the absence of a statutory right, to an appeal,
however, review of a Parole Commission order remains
available by Mandamus or 'Habeas Corpus. Griffith v.
F. P.P.C., 485 So.2d 818, 820 (Fla. 1986); Richardson v.
F.P.C., 924 So.2d 908 (Fla. III DCA 2006).
The filing of a Petition for Writ of Habeas Corpus
(claiming entitlement to immediate release) is. the proper
method of challenging the revocation of an inmate's
Conditional Release supervision. See generally: § 79.01
Fla. StatlArt. v. Sec. 5(b), Fla. Const. Knowles v. F.P. C.,
846 So.2d 1246 (Fla. III DCA 2003); Martin v. F.P.C.,
951 So.2d 84, 85 (Fla. III DCA 2007).
An inmate's Petition for Writ of Habeas Corpus must
be filed in the Circuit Court of the county in which the
inmate is incarcerated. Heard. v. F.P.C., 811 So.2d 808
, (Fla. III DCA 2002).
The' question of timelines must be raised by the
affinnative defense of laches. Spaziano v. 'F.P.C.,. 31
FLW D15976, _ _So.2d_ _(FIa. III DCA 6/912006),
citing Johnson v. F.P.C., 841 So.2d (j15, 617 (Fla. III
DCA 2003). See also: Martin, supra, certifying conflict
with Cooper to the extent Cooper holds that Rule
9. 100(2)(c), Fla.R.App.P. and § 95. 11(5)(f), Fla. Stat.,
may opdrate to bar a Habeas Corpus, proceeding
chaJlenging a prisoner's continued confinement pursuant

to the revocation of post-release supervision by the Parole.
Commission. Cf. Cooper v. F.P.c., 924 So.2d 966 (Fla. 4th
DCA 2006), review pending, No. SC06-1236 (Fla. June
21,2006).
.
A petition. for Writ of Habeas 'Coipus is
constitutionally exempt form all court cOsts and filing
fees. Stanley v. Moore,' 744 So.2d 1160, 1t61 (Fla. til
DCA 1999).
"Once the inmate has had a full review on 'the merits'
of a Parole Commission order in the Circuit Court....
Review of Trial Court's order is by Petition for Writ of
Certiorari to the District Court of Appea!." Sheley, Id at
217. Bu~ see: Green v. Moore, 777 So.2d 425, 426 (Fla. til
DCA 2000), and'Mora v. McDonough, 32 FLW DI29~,
Il
~56 So.2d 1203 (Fla. I .DCA 5/17/07Xappeal rather than
certionu:i was the proper method to review the Circuit
Court's decision where proceeding was concluded on
grounds other than the merits).
Under Rule 9.l00(c)(I)~ Fla.R.App.P., a Petition for
Writ of Certiorari is required to be filed within 30 days of
the rendition of the order to be reviewed. .
.
The scope of review on a Petition for "second-tier"
Certiorari is limited to determining whether the Circuit
Court: (1) afforded procedural due process and (2) aPplied
the correct law. This second-tier certiorari review is
simply another way' of deCiding whether the lower court
'~departed from tJte essential requirements of law."
The District Court may not review the record to
determine whether the underlying agency decision is
supported by competent, substantial evidence. Mabrey, Id
at 1181.
'
Although the foregoing'discussion covers some of the
main points of Conditional Release. it is by no means
exhaustive. Offense dates and statutory history ,are
important. Therefore, the· best practice to achieve a just
and deserved result is to re~h on a case-by~e basis.
ENDNOTE

• Deason v. State, 688 So.2d 988 (Fla"'" DCA 1997),
approved 705 So.2d 1374 (Fla. 1998), Conditional Release
Statute' provided for habitualized sentencing as separate
independent criterion for Conditional Release and did not
additionally requ'ire conviction sentencing guidelines. _

____.. . .=*-0.. . - c,

6

Florida Prison Legal Perspectives

Obtaining Records From Counsel
by Melvin Perez
ften a prisoner will write. to hi.s or her former
counsel and request pertment records for the'
O
preparation of post-conviction
At times, for
pl~adings.

whatever reason. counsel is reluctant to provide such
records. With statutes of limitations running and
misadvice by incompetent law clerks. the prisoner is
unaware of the proper remedy to seek. With this said
I write to explain the remedy a prisoner can pursu~
should this problem arise.
However. before I go into the remedy the prisoner
may seek,' it's important to know the different
principles of law that apply to' a public defender, an
appointed private attorney, and Ii retained attorney.
For purposes of this article, the inain focus will be
on public defenders and court-appointed private
attorneys. .
Public Defender
The law is clear that an indigent defendant is
entitled to his criminal trial transcripts, including
depositions. prepared at public expense and that a writ
of man~us is a proper means to c;ompel a public
defender to furnish a defendant with such transcripts.
See: Pearce v. Sheffey, 647 So.2d 333 (Fla. 2nd DCA
1994).
Court-Appointed Private Attorney
.'
Florida courts have explained, via decisional law .
that private 'counsel who i~ appointed to act as ~
special public defender is an agent of the state and is
required to tum over to his client' depositions and
other documents produced at public exPense. See:
Colon v. Irwin, 732 So.2d 428' (Fla. 51b DCA 1999)
and Smith v. State, 889 So.2d 1009, 1010 (Fla. 3M
DCA 2004).
.' Moreo~er, .a~in mandamus is th~ aPpropriate ,
remedy smce It IS used to compel an official to perform lawful duties. Thu~ a court-appointed laWyer is
an "official" See: Pearce.. supra at 333.
Private Attorney .
Florida Bar Rules of Professional Conduct. Rule 41.16 (d), requires attorneys' to surrender all papers
upon termination of representation.
'.'
However, for mandamus pUrpOses. Florida Courts
have ruled that there is.!!Q duty upon a private attorney
to give any of his files to a client free of charge.
Exceptions to this are documents which are solely
those of the client and held by the lawyer. See:
Donahue v. Vaughn, 721 So.2d356 (Fla. Sib DCA
1998).

Similarly, . pleadings, investigative reports,
subpoena COpies, reports and other case preparation
documents are property of the lawyer. He is not
required to give tltat material to the client or make
copies free ofchatge. Id at356-357.
Further, mandamus does not lie to require a private
citizen to perform a ministerial duty required by law.
Id.. In fact. one court stated that the appropriate
remedy in this instance, is an action for replevin. See:
Puckett v. Gentry, 577 So.2d 965 (Fla. 51b DCA 1991).
Puckett· had argued that his private attorney, who
represented· him on appeal, failed to turn over
transcripts he paid for./d.
. Alternativ~ly, tlte prisoner can file a complaint
WIt!' the Florida Bar before resorting to the replevin
action.
Documents Not Free of Charge
.Files prepared and maintained by an attorney for
the purpose of representing a client are the attorney's
personal property; these are not free of charge. See:
Lo!'g v. Dillinger,/7.01 So. 2d 1168, 1169 (Fla. 1997).
See als~: Sanford v. Black, 782 So.2d 548, 549 n.2
(Fla. 5 DCA 2001) (noting tltat the client must
compensate his specially-appointed public defender
for a copy of a lab report that was the attorney's work
producQ. .
.
Furthermore, arguments that the' Public Records
Act. Ch. 119, Florida Statutes, entitles a defendant to
free copies of all records generated in the case have
been held to be without merit. See: Woodson v.
: Durocher, 588 So.2d 644 (Fla. 51b DCA i991), and
Potts v. State, 869 So.2d 1223, 1225 (Fla. 2nd DCA
2004).
Identifying The Records
A request for records must specifically idelitify tlte
records that. the prisoner seeks which were produced
.at public expense.
.
Nevertheless, if any records were already sent to
the prisoner, he must identify the records. he claims
were not turned over.
. 'Additionally, should tlte prisoner fail to meet these
requirements, and then seeks mandamus relief (not for
private counsel), the court will not co~pel the
attorney to produce tlte~e records. See: Rioux v. State,
949 So.2d 355, 356 (Fla. 41b DCA 2007). and
Thompson v. Unterberger, 577 So.2d 684 (Fla. 2nd
DCA 1991).
.
Filing The Petition
,The petition for writ of mandamus must be filed
under FloridaRules of Civil Procedure 1.630(b) in tlte
circuit court. This applies whether the records sought
are from trial or appellate counsel. See: Thompson.
supra.
.
7

Florida Prison Legal Perspectives
UDder this -rule the initial pleading shall be a
complaint and .shall co~tainthe. following in order to
be faciaUy sufficient: .

,

(1) the/acts on which the plaintif/relles/or reliet
(2) a request/or the relie/sought; and,
.
(3) if desired, argument in support. oJthe petition with.
citations ojauthority.
The caption shall show the action filed in'the name
of the plaintiff in all cases and not on the relation' of
the state.Jd
Likewise, the petition should include as exhibits all
the requests for documents made to counsel that are at
issue and any responses provided by counsel.
Rule 1.()30(c) states that a complaint shall be filed
within the time provided by law, except' that a
complaint for common law certiorari shall be filed
within 30 days of rendition of the matter sought to be
reviewed.
.
Under Ch. 95.11(5)(f), Florida Statutes, there is a
one-;.year statute of limitations to file such action.
The writ shall be served in'the manner prescribed
by law, except the summons in certiorari shall be
served as provided in Rule 1.08O(b). See: Rule
1.630(d). .
The original complaint is filed with the coUJ'i either
before service on opposing counselor immediately
thereafter. Which most likely will be the same
attorney who failed to provide the documents
requested. See: Rule 1.080(d).
.
When the trial court receives a petition for writ of
mandamus, its initial task is assessing the petition to .
determine . whether it is facially sufficient. See:
Holcomb v. FDOC, 609 So.2d 751 (Fla. lit DCA
1992).
If it is not facially sufficient, the court may dismiss
the petition. Id. OtherWise, if the petition states a
legally sufficient claim, the court must issue an
alternative writ of mandamus ordering the respondent
to show cause why the writ should not be granted.
See: Rule 1.630(dX3) and Holcomb, supra at 753.
.
This show cause order will set forth a date for
respondent to file a response. This response must
comply with Rule 1.140. The show cause order should
.give the petitioner a set amount of days to reply. If no
time is set by the court for a' reply, the petitioner
should.file a reply within 20 calendar days from the.
service of the response. See: Rule 1.140. However, a
reply is optional.
The petitioner should also' keep in mind that in
civil law, when a party is ordered to respond within
the designated date, anyt,hing filed pursuant to such an
order must be filed by designated date~ Five days rule·
provided for service by· mail for civil cases does not
8

. apply. See: Chiapelli v. Atkins,. 429 So.2d 852 (Fla. 4lb
DCA 1983).
Therefore, a party can move for an application for
defauit under .Florida Rule of Civil Procedure
1.500(b), .if il response is not filed within the time set
by the court order. This motion is serVed as any other
motion.
After the response and reply are filed or the time
for filing expires, th~ court will issue a ruling. If the
court denies the petition there are several options the
prisoner can pursue.
.
Motion For Rehearing
One option available is to file a motion for
rehearing. Such remedy is sought via Rule 1.530(b) .
and ml:lSt be served within 10 days after the filing of .
the denial. The service of this motion ,will stay
execution on the judgment Under Rule 1.550(a).
A motion for rehearing is often' used to point out a
material mistake in fact or law upon which the denial
relies.
Furthermore, a motion for rehearing may be
necessary to get any objections into the record when
the court dismisses the case.' For instance, if the court
dismissed your case before you had the opportunity to
be heard in opposition to a motion to dismiss.
Appealing The Denial
An appeal in this type of case is governed by
Florida Rules of Appellate Procedure 9.110.
Jurisdiction of the court under this rule shall be
invoked by filing two copies of a· notice, accompanied
by filing fees prescribed by law, with the clerk of the
lower tribunal within 30 days of rendition ofthe order
• to be reviewed. See: Rule 9.l10(b).
.
If the prisoner is proceeding insolven~ he must file
a motion for insolvency and attach a six-month bank
statement. Some courts may also require this when
filing the initial petition in the trial court. To request
this printout, the prisoner must fill out and affidavit of,
'insolv~ncy,attach it to an Inmate Request form, and
address it to the Inmate TrUst Fund.
The notice of appeal shall be substantially in the
form prescribed by Rule 9.900(a). The caption shall
contain the name of the lower tribunal, the name and
designation of at least one party on each side, and the
case number in the lower tribunal.
Further, the notice shall contain the name of the
court to which the appeal is taken, the date of
rendition, and the nature of the order to be reviewed.
. See: Rule 9.110(d).
.
Moreover, this rule provides that in criminal cases,
a conformed copy of the order or orders designated in
the notice of appeal shall be attached to the notice
, together with any order entered on a timely motion

Florida P,rison Legal Perspe~tives
postponing rendition of the order or orders appealed.
[d.
Within SO days of filing the notice. the clerk shall
prepare the record prescribed by Rule 9.200 and serve
copies of the index on all parties. Within 110 days of
filing the notice, the c~erk' shall transmit the record to
the court. See: Rule 9.11O(e).
The initial brief shan be served within 70 days of
filing the notice. The. prisoner shall file the original
and three copies with the DCA and a copy to the
opposing party. Additional briefs shall' be served as
prescribed by Rule 9.210. See: Rule 9.110(t).
Rule 9.210(t) requires the appellee/respondent to
serve an answer brief within 20 days after service of
the initial brief; the reply brief, if any, shall be served
within 20 days after service of the answer brief. Agai~
the reply brief is optional. Thereafter, the DCA will
issue a ruling.
I hope this article has provid~d useful infonnation
to those who find themselves in this predicament. -

T y.p I N G
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Legal Briefs, Newsletters, Ar1Ictes,
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Sandra Z. Thomas

PO Box 4178
Winter Park, FL 32793-4178'
Phon.:407~7~563

9

Florida Prison Legal Perspectives

am

Dear FPLP: I
currently serving a 15 year sentence for an alleged "Sale.or Delivery of Cocaine". I have a couple of
issues to inform you about that I believ~ would be of extreme interest to your readers, particularly those who've been
sentenced to prison by the Gity of Jacksonville. Fist, section 944.17 (5) Florida Statutes, commands and authorizes the
DOC to refuse to admit a person (or prisoner) into the State Correctional system unless the commitment form, judgnient
and sentepce forms, are "complete." In literally hundreds (and more likely thousands) of cases, the DOC has ignored this
pertinent statute, and .have allowed persons into the state prison systems on uniform CQmmitment to Custody forms that
have not been signed by the Sentencing Judge nor the Clerk of Court,· and nether bears the official seal of the Circuit
Court or that ofthe clerk. See section 28.071 Fla. Stat., and Sykes v. State, 947 So.2d 1133 (Fla. .I" DCA 2008) . As such,
we prisonerS are being iIIegaJly detained, and through chapter-33 F.A.C., are being forced into labor and deprived ofother
Constitution Liberties without lawful process. Per the 1st DCA's ruling in Sykes; and the Florida Supreme Courts' rejection
ofjurisdiction to review that decision, I am currently awaiting the DOC's response to the 91b Judicial Circuit Courts' order
to the DOC to "Show Cause" why.relief should not be granted. Their response was due by July 71b, 2008, however, as of
the end of July, DOC has yet to respond. As an advocate for prisoner's rights, the FPLP should be inte!ested in the
outcome ~f this case (case # 02-2008-CA-000083, Tony Howard v. Melody L. Flores, Warden, Baker C/). State agencies
must obey the legislated laws and Constitutions of the United States and Florida, and their own Rules. See section
603.002 (2)(c).Chapter 33 F.A.C.. Another matter of grave importance is the fact that many prisoners have been indicted
or had information's signed by bogus and unregistered employees of respective State Attorney's Offices, and had the cases
prosecuted by them to trials and plea bargains). Not only have these attorneys failed to take and file oaths of loyalty, but
they have no written Constitutional oaths ofoffice, written appointments by the State Attorney, and no sworn designations
to file or sign information's registered or transmitted to the office of the Secretary of State, as required by Section 27.181
(I) and (2) Florida Statutes.; TH BCI
. .
Dear FPLP: I am handicapped and ~erving time in Florida. I have prostrate cancer and Hepatitis C and haven't had any
medical treatment yet. They have known for over a year but have not done anything. I'm a disabled Vet with no prior
record I have been trying to get transferred to work release so I can be furlough to the VA. We are not fed the right diet
for diabetics; they say they don't have the money. It won't cost DOC anything to let me· go to the VA. I was moved back to
WCI in September, they drug me out of my wheel chair and drug me up a set of steel Steps em my bac~ to a prison bus
because they said they didn't have a handicapped van. ML WCI '
.
Dear FPLP: Thank you for replying about the property room holding on to my issues until I am finished with disciplinary
confinement. The o~ly reason I reCeived the Mar/Apr issue was that the legal mail lady directly delivered it to me.
Although the property personnel state I am not allowed magazines in disciplinary confinement, I am going to start the
grievance process because although they consider it a magazine, I consider it a legal guide ·arid publication, ~d under~
chapter 33-602.222, I am allowed legal material, this is just another tactic they use to keep. me blinded.from what is going
on with DOC. Keep up the Great Workl I never lay down, I put pen t6 paper. Now even the courts are trying to ban me
from filing mandamus to challenge DR's under the Vexacious Litigant filing law; people filing in the Second Judicial
Circuit which is bias toward inmate grievance appeals should file in the third Circuit or other Circuit. Once again keep up
the Great Work! WMCCCI
.

.Letters to the Editor from FPLAO members may be printed in this section. The identity ojleller writers will be by
abbreviation, unless otherwise specified by the writer, jor protection against possible retaliation and to encourage
freedom ojspeech All letters printed are suJqect to editingjor clarity and length All letters cannot be printed but are
invitetl-Address letters to: Editors, FPLP, P.O. Box 1069, Marion, NC 28752. IfYour letter also concerns membership,
membership renewal, address change, etc., please address that matter at the beginning of the letter to assist staff in
processingyour mall.
10

I

Florida ·Prison Legal Perspectives

•

.The following are summaries ofrecent state.andfederal cases that may be useful to or have a significant impact on Florida prisoners.
Read.ers should always read the full opinion as published in the Florida Law WeeJc/y (Fla. L. WeeKly); Florida Law Weekly federal
(Fla. L Weekly Federal); Southern Reporter 2d (So. 2d); Supreme CoUrt Reporter (S. Ct.); Federal Reporter 3d (F.3d); or the
Federal Supplemenl2d (F.Supp. 2d), since these. summaries are/or general information only.·

Supreme Court of Florida
Lescber v. Flo. Dep't of Highway
Safety and Motor Vehicles. 33 Fla. L.
Weekly 8434 (Fla. 7/3/08)
.
In this case. the' Florida Supreme
Court has opined that the amendment
to section 322.271 (4). Fla.' Stat..
which eliminated hardship driver's
licenses that went into effect July 1,
2003. does not violate the prohibition
against ex post facto laws as to
persons who could have applied for
such licenses before the amendment
became effective.
Wyche v. State. 33 Fla. L. Weekly
S509 (Fla. 7/1 0/08)
The Florida Supreme Court in
Earl Wyche's case has determined
that when a defendant is told by
authorities that the DNA saliva
swabs. that's being attempted to be
taken from defendant, are to be used
in an investigation of some fictitious
crime named, [intentional deCeption
to obtain the" DNA] does "not make
the defendant's consent to the swabs
coerced....
This review was brought due to
the conflicting ~pinions between
Wyche v. State, '906 So.2a 1142 (Fla.
lit DCA 2005) and State v. McCord,
833 So.2d 828 (Fla. 4th DCA 2002)..
The review approved the First
District's opinion in Wyche that
affmned the denial of Wyche's
motion to suppress swabs taken by
deception. and it showed the Fourth
District's decision in McCord to be
. 4istinguisbed where the granting of a '
motion to suppress swabs taken by
deception was affirmed.

executing the capias; the lower court
(NOTE: Although Justice J." Bell
concurred with the majority opinion,
denied the motion.
he .stated that it was with serious
Applicable statute' of limitations is
resen:ations because he was
thilt wh~ch was in effect at the time
disturbed by the level of intentional · of the-· incident giving, rise to the
. police misrepresentation. (Why
criminal charges. See:· State v. Mack,
concur then?) His "hope is that law
637 So:2d 18, 19 (Fla. 4th DCA
enforcement
will
resist .the · 1994). The 1996 statute
temptation to interpret the decision
limitations that pertain to Soto's case
requires prosecution to commence
as an endorsement of such eJeception
as acceptable." (...?) However•. within three years' after the felony
Justices J. Anstead. Pariente. and JJ.
was committed. See section 775.15
Lewis dissented with very Itmgthy
(2Xb), Florida Stat~tes (Supp. 1996).
opinions (which should be reviewed)
That section defines commencement
and concurred with each others
of prosecution when either an
dissenting opinion]
indictment or information is filed.
provided the capias, summons. or
other process issued on such
.indictment or information is executed
District Courts of Appea~ .
without unreasonable delay. In
determining
what is reasonable,
Soto v. State. 33 Fla. L. Weekly
th
to
locate
the defendant after
inability
D1526 (Fla. 4 DCA 6/11/08)
·
diligent
search
or.
the defendant's
Reinaldo Soto appealed a lower
absence
from
the"
state shall be
court's denial of his motion to
considered.
dismiss charges based on the
It was opined by the appellate·
expiration of the statute of
• court that the state in Soto's case did
. "limitations.
not make diligent etJ'orts to locate
Information was filed by the state
Soto and the capias was not executed
Dec.: 6. 1996~that charged Soto with
without
unreasonable delay. Because
a third degree felony of aggravated
the
state
did not offer any evidence
assault, which allegedly occurred
were made to locate
that
attempts
Nov. IS. 1996. Subsequent Soto's
Soto
an<,l
execute
the capias. it failed
arrest and reiease.· a notice of
to
meet
its
burden
under former
arraignment was sent to him by mail.
section
775.15
(5).
See:
Mack, [d., at
Soto, however. failed to appear and .
19-20...
capias was issued that same day. Jan.
Soto's case was reversed and
16, 1997. Soto was arrested "later in
remanded with directions that the
Texas in 2006 and brought to Florida
charge be dismissed and the sentence
on the outstanding 1997 warrant. In
to be ·vacated.
October of 2006, Soto was arraigned
for the 1996 offense. Subsequent
[NOTE:
The
legislature
Soto's motion to dismiss on the
amended
section
subsequently
ground that the three-year limitations
775.15 (5). so that a "[P]roSecUtiOD
period had run and the state had
on a charge on which the defendant
exercised an unreasonable delay in
11

of

Florida Prison Legal Perspectives
has previously 'been arrested or
served with a summons is
commenced by the, filing of an
indictment, information, or other
charging document." See: Ch. 97-90,
section I, at 514, Laws ofFlorida.] .

Apprendi/Blakely would apply to any
re-sentencing. that took place after
Apprendi' came doWn, even resentencings that took place before

for determination of basic. gain-time
forfeited up to the point of Burks'
release to parole under the form~la in
effect in'1981.

Blakely was decided. .
It was opined,' regarding the
notation made ,in ,MonnaI's case
about the Isaac decision not being
superseded or disproved by the
Florida Supreme Court, Isaac still
cQntrols, not as law of the case,bul
as governing precedent within the
First District.

Barrett v. State, 33 Fla. L. Weekly

D1657 (Fla. 4th DCA 6/25/08)
Nunes v. State, 33 Fla. L. Weekly
The
appellate
couit
had
01503 (Fla. 2d DCA 6/11108)
previously granted Ricky Barrett's
The appellate court in Garrett
motion for clarification in its original
Nunes' case opined that the trial
opinion at 33 Fla. L. Weekly
court erred in denying Nunes' motion
011261, and then substituted a
to suppress statements Nunes made
correct~ opinion !or that original
to detectives and assistant state
one.
attorney during plea negotiations.
[~Apprendi v. New Jersey, 530 U.S.
Barrett was convicted of armed
It was opined' on appeal lItat
466 (2000); Blakely \I. Washington,
burglary however, in the appellate
Nunes' statements were inadmissible
542 U.S. 296 (2004).]
court's corrected opinion, it opintd
as statements .made 'during plea
the evidence against him .did not
negotiations because Nunes made the
Burks v. McNeil, 33 Fla. L. Weekly
support a finding that he was armed
DI576 (Fla. III DCA 6/16/08)
With
subjective
statements
~iJe committing the burglary. It
expectation to negotiate a plea and he
Reginald Burks sought an appeal
was found that the evidence only
reasonably expected that, those
of ari order that denied his habeas
showed that Barrett broke into a
statements were the beginning of a
petition that challenged D.O.Co's
structure for the purpose of taking
plea, bargaining process, given the
calculation of his sentence.
something of value, where he found
totality ofobjective circumstances in
In the lower court, Burks
a safe, loaded it into his vehicle, and
the case.
.
contended that D.O.C. violated the ex
hauled it away from the scene. It was
It was further noted that neither
post facto clause when it apl?lied the
only after Barrett opened the safe
Crim. Procedure Rule 3 .172 (i), nor
1983 version of section ~44.275,
with a crowbar did he find a loaded
Florida Statutes, to his offense
section 90Al 0, Florida Statutes,
gun inside of it.
require that ~. plea bargin 'be'
committed in 1981. D.O.Co's use of
It was noted that it has been
completed or that 8- written
that statute version resulted, in a
established in Florida law that felony
agreement
be
sigried
before
greater
penalty
upon
Burks'
crimes of ,possession of forbidden
negotiations can be excludlfd from
revocation of parole.
substances or things require proof of'
evidence. .
On appeal, it was noted that the
guilty knowledge of the defendant
Nunes' case was reversed and
that he is in possession of such items..
appellate court has previously held
that the use of the revised 1983
remanded for further proc~dings.
See: Washington \I. Stale, 813 So.2d
version of section 944.275 for an
59 (Fla.' 2002); Scali v. State, 808
Monnar v. State, 33 Fla. L. Weekly
earlier
offense
date
is
So.2d 166 (Fla. 2002); Chicane \I.
01575 (Fla. III DCA 6/16/08)
disadvantageous to the prisoner
State, 684 So.2d 736 (Fla. 1996); and
which violated the ex post fact
The First District Court of Appe8I
Reynolds v. State, III So.2d 285
clause. The gain-time statute in effect
in Maynor E. Monnar's case, upon
(Fla. 1926). Furthermore, nothing in
at . the ti,me of Burks' offense
section 810.02 (2)(b), Florida
remand from. the Florida Supreme
provided for basic gain-time to be . Statutes, suggests that the Legislature
Court, noted that while MonnaI's
case was being reviewed .by the
earned under the 3-6-9 formula on a
meant to dispense with the
monthiy basis, rather than the 10
'higher court regarding issues
presumptive element of knowledge.
. concerning the Apprendi/Blakely
days a month under the 1983 versfon.
There was no evidence presented
·decisionS, the Fla. Supreme Court
It was further noted that a review of
,in Barrett's case. that' indicated he
the rule in effect on the date ot:
did not supersede or disprove the
became' aware of the presence of a
offense, Florida Administrative Code
First District's decision ii held in
gun on the premises where the
burglary was committed.
.
Isaac v. State, 911 ~0.2d 813 (Fla. 111
Rule 33-11.045, indicated that gainDCA 2005).
time was to be awarded or withheld
Accordingly, Barrett's case was
In Isaac,' the appellate' court
monthly, rather than the lump sum
reversed and remanded for the trial
opined'
that
aithough
award under the current version of'
court to reduce his conviction for
the rule.
'
ApprendJIBlakely was decided after
armed burglary to burglary of a
Isaac's conviction and original'
Accordingly, Burks' petition was
structure.
sentence
were
final, . granted and the case was remanded

12

Florida Prison Legal Penpectives
Under Florida Rule of Criminal
against Appellees in their individual
Balmori v. State. 33 Fla. L. Weekly
Procedure 3.850 (d), a defendant
capacity. See: Hall v. Officer Knipp,
D1669 (Fla. 2d DCA 6/21/08)
Fla. Dep't o/Carr., 982 So.2d 1196
Jose Balmori appealed. the denial.
who alleges ineffective assistance of
(Fla. lit DCA 2008) (where a
counsel is entitled to an evidentillJy
in part, and summllJy denial. in part,
dismissal order was reversed as to
hearing on those specific claims and
of his rule 3.850 motion that raised
the correctional officer because the
facts ;which are not Conclusively
~n claims of ineffective assistance of
appellant's allegation was sufficient
. rebutted by the record and which
counsel.
. to state cause of action against the
demonstrate a deficiency in trial
The apPellate court affirmed the
counsel's
performance
that
officer in his i~dividual capacity);
denial of the eight claims Balmori
Medberry l'. McCallister. 937 So.2d
was given an evidentiary hearing. • prejudiced the outcome of the trial.
808.814 (Fla. I"'DCA 2006)(where
See: Floyd v. State. 808 So.2d 175.
however. it.review~d and addressed
the :dismissal order was reversed
182 (Fla. 2002).
the summary demal of the two
because the appellant's pleadings'
The record that was before the
remaining claims of ineffective
tracked all of the pertinent language
appellate court in Balmori's ~e
assistance ofcounsel.
in section 768.28 (9). Florida
Balmori had been convicted of
failed to rebut· Balmori's two daims
attempted trafficking in heroin. His . that were summarily denied. What
Statutes. allowing the appellees, two
was shown in the record' was that
correctional officers, to be sued and
only defense was not knowing the
Balmori was the only witness to
held personally liable).
drugs were in his vehicle until he
As a result, the. appellate court
tQstify in his defense. At trial. the
was arrested and his vehicle was
searched. Balmori was the' only
state 'had to prove beyond a
agreed with Hall that the lower court
reasonable doubt that Balmori was
erred in dismissing his civil
witness in his defense. In. pertinent
complaint. It was also agreed that the
"knowingly in actual or constructive
part of the summarily denied claims.
possession" ,of the heroin found in
lower court erred in prohibiting
Balmori claimed he had informed.his
future filings pf pro' se actions
his car. See: section 893.135
counsel that because of the items in
(l){cXI), Florida Statutes. (2002),
without givIng notice or issuing a
his vehicle, that were there on a daily'
(emphasis added). Because Balmori's
show cause order. See: Petty v. State,
basis (what the .appellate court called
knowlecJge of the heroin's presence
926 So.2d 445 (Fla. lSI DCA 2006);
a "messy car ~efePse"), he had no
and Jackson v. Parkhouse. 826 So.2d
was the· primllJy disputed issue at
knowledge of the drugs in the car.
'trial, his credibility with the jury was
478.479 (Fla. 111 DCA 2002)..
Balmori further explained to counsel
Hall's case was reversed' and
essential to hi's defense.
that his car had sat at a automobile'
The appellate court concluded
remanded for further proceedings.
repair shop for a week prior to his .
that, taking Balmori's claims as we
trip to Miami and subsequent arrest
without
any rebutting record.
Antunes,:"Salgado v. State, 33 Fla. L.
on his return. Counsel was informed
Balmori did demonstrate ineffective
Weekly 01863 (Fla. 2d DCA
of witnesses at the repair shop that
assistance ofcounsel.
7/30/08)
could have testified that his car was
Accordingly,
the summarily,
Carlos
Antunes-Salgado
there and numerous individuals,
denied claims of Balmori's rule 3.850
including an informant that worked
(Salgado) appealed his convictions of
motion were reversed and remanded
at the shop. had access to the car.
trafficking in cocaine and conspiracy
for the lower court to either attach
Balmori gave a work order form to
to traffic in cocaine.
In' the .appellate court, Salgado
record that conclusively refutes the
his counsel. that showed dates and
c]aims~or
if·
not,
.it
.shall
hold
an
argued
that although the issue he
times during which his car was at the
evidentiary
hearing
on
those
claims.
shop,· and explained that the
brought foith' was not preserved for
appellate review. his defense counsel
employees around that shop.
including the confidential informant,
Hall v. Knight. 33 Fla. L. Weekly' was ineffective for conceding the
D1802 (Fla. lit DCA 7/17/08) .
admissibility of his codefendants'
could have placed or thrown the
Wendall Hall. a Florida State
heroin in his car without his
statements. which were the sole
evidence supporting the conspiracy
prisoner•. appealed an onter,that
knowledge.
charge.
dismissed
his
civil
complaint
against
However. Balmori alleged that
At trial, although Salgadds
Captain Knight and Sergeant Ruddy,
despite all the information he gave to
two correctional officers (Appellees).
codefendants were not present, the
his counsel. . that would have
state sought to prove the existence of
bolstered his
credibility and . and that prohibited him from tiling
future pro se actions.
conspiracy through the post-arrest
supported his claim of no knowledge
and post-Miranda statements of the
HaJJ argued on appeal that the
of the heroin's presence, counsel
codefendants as related by the police
Washington' County Circuit Court
failed to investigate any of that
erred in dismissing his complaint for
officer who took their statements.
information for his defense.
the failure to state a cause of action
Salgado's counsel failed to object to

13

Florida Prison Legal Perspectives
evidence to the conspiracy charge.
Davalos lI. State, 33 Fla. L. Weekly
this admission and. in fact. counsel
Also, there were no excuses of any
01869 (Fla. 3d DCA 7/30/08)
stated that he believed the statements
were admissible. under section
Conceivable tactical reason on part of
George Davalos appealed the.
90.803 (J8)(e), Florida Statutes
the, ineffective assistance of counsel
denial of his motion to withdraw his
(2005).
plea after sentencing, or, in the
presented.
.
alternative, mitigate his sentence.
Therefore, Salgado's case was
Ineffective assistance of counsel
is found when counsel's performance
reversed and remanded for a new
In the lower court. Davalos was
fall outside the range .of reasonable
trial on all charges.
offered a plea deal by the state,
professional assistance ,and when
w~ich he. rejected and then entered
there is a reasonable probability thaf
Joseph v. State, 33 Fla. L. Weekly· an open plea of guilty. Subsequently,
01869 (Fla: lilt DCA 7/30/08)
the results of the proceeding would
the sentencing judg9 sentenced
Davalos to a sentence three times
have been different but for the
The trial court in Ronald A.
. inadequate
performance.
See:
Joseph's case had sua sponte declared
more than what the state had offered.
a mistrial without Joseph's consent
Strickland lI. Washington. 466 U.S.
On appeal. Davalos argued that
668,688,694 (1984).
and absent a manifest necessity.
his sentence was a product ofjudicial
vindictiveness. The state responded
. . Although such claims may not be
TI,le appellate court noted that
raised· ,on direct appeal, see, e.g.,
when a jury has been discharged
that vindictive "is a term of art which
expresses the legal effect of a given
without
Bruno lI. State, 807 So.2d S5, 63
consent of the defendant
and
.
.
(Fla. 2001), "appellate. courts make
without. a manifest necessity, the
·course of action, and does not imply
an exception to· this rule when the
any personal or subjective animosity
discharge is the equivalent' of an
between the. court and the
ineffectiveness is obvious oli the face
acquittal, and retrial is prohibited.
defendant." as the· state impli~ of
of the appellate record, the prejudice
See: United States v. Jom, 400 U.S.
caused by the conduct is
470 S84 (1971). Also,' defendant's
Davalos argument. The state cited
silence or failure to object to an
indisputable,
and
a
tactical
Longley v. State, 901'So.2d 925, 928
n. S (Fla. Sib DCA 2005), to support
illegal discharge of a jury does not
explanation for the conduct is
their response. ,.
constitute consent to a declaration of
inconceivable." Corzo v. State, 806
The appellate court however,
So.2d 642, 64S (Fla. 2d DCA 2002).
mistrial and it does not waive a
defendant's constitutional protection
opined that
"a totality of
The appellate court found that.
against double jeopardy. See:
circumstances' review [is] more
contrary to Salgado's defense
appropriate to· determine if the
counsel's belief, long standing
Spaziano v. Slate, 429 So.2d 1344"
defendant's constitutional right to
1346 (Fla. 2d DCA 1983). Further,
Florida case law holds that
due process was violated by the
"Manifest.necessity arises because of
statements made after the crime and
some misfortune which, although !he ' imposition of an increased sentence
do not "further" the conspiracy are
fault of neither party, renders
after unsuccessful plea negotiations."
inadmissible under section 90.803
continuation 'of the trial impossible."
[d. . at 928. 'Also see, e.g., Wilson v.
(18Xe). See: Brooks v. State, 787
State, 84S So.2d 142, ISS (Fla.
So.2d 765, 772 (Fla. 2001).
'
Cohens· lI. Elwell, 600 So.2d1224,
2003).
.
1225 (Fla. I" DCA 1992).
There· was no question in
It was concluded in Davalos' case _
It was opined in Joseph's appeal
Salgado'S case that codefendants'
that the trial court's denial of the
that the trial court could have
statements occurred after the
considered continuing the' original
motion to withdraw pleas constituted
~onspiracy was over and did nothing
proceeding, or, possibly some other. an abuse of its discretion and, in
to
"further"
the
conspiracy.
effect, violated Davalos' right to due
alternative; and to allow time for
Therefore, it was opined that defense
investigations to take place on behalf . process.
counsel
was
ineffective
for
As a result. the order denying the
conceding admissibilitY on that'basis, . of Joseph's defense. See: C.A.K lI.
plea withdraw motion was reversed
State, 661 So.2d 365 (Fla. 2d DCA
and it was apparent on the face ofthe
1995). However, the trial court failed . and the case was remanded with
appellate reCord. Further, it was
instructions for Davalos to be given a
to reach such cor,siderations. Thus, it
opined that the statements were
new sentencing hearing before a
was concluded that the mistrial was
inadmissible under Crawford lI.
different judge.
unwarranted and Joseph's subsequent
Washington, S41 U.S. 36 (2004)
(where it prohibits the admission of .. retrial was barred.
Michel v. State, 33 Fla. L. Weekly
Accordingly, Joseph's case was
"testimonial" hearsay because it
01881 (Fla. 41b DCA 7/30/08)
reversed and remanded with
violates the Confrontational Clause)
Judith Michel was convicted of
instructions to discharge Joseph from
[d. at S1.
aggravated
battery, after a jury trial,
the
charges.
. It was. also concluded that
which arOse out of a physical
Salgado was prejudiced because the
statements were the state's only

14

Florida Prison Legal Perspectives
altercation that occurred between her
and the victim.
At trial. Mitchel testified that she
believed the victim was going to use
a .1cn!fe ,on her during the altercation .
and. at which time. she grabbed an
"eyebrow razor" and told the victim"
you better let me go." then.
subsequently. cut the victim.
On appeal from her conviction.
the appellate court deten.nined that
Michel's counsel was shown to be
ineffective on the face of the
appellate record for failing to request
instructions on justifiable use of nondeadly fon:e. where Michel's only
defense was self-defense.
Accordingly. Michel's conviction
was reversed and her case was
remanded for a new trial. _ .

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15

Florida Prison Legal Perspectives

Loren D. Rhoton
'Postconviction Attorney
,.
•
•
•
•
•

.

,

Direct Appeals
Belated Appeals.
Rule 3.850.Motioris
Sentence" Corrections
'N~w Trials'
Federal. Habeas Corpus Petitions

412 East Madison Street, Suite 1111
. Tampa, Florida 33602'
(813) 226-3138
Fax (813) 221-2182
Email: ·Iorenrhoton@rhotonpostconviction.com
Website: www.rhotonpostconviction.com
The hiring of a lawyer is an important decision that should not be based solely on advertisements.
Before you dec~de, ask us to ~nd you free written information about our qualifications.

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POSTCONVICTION RELIEF FOR THE FLORIDA PRISONER
A Compilation ofSelected Postconviction Corner Articles
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'

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on professional ~xperience, case citations, and references to the relevant rules ofprocedure
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16

..

Florida Prison Legal Penpectives

POST CONVICTION
CORNER

.by Loren RhotoD. Esq.

An important consideration for any person accused of a criminal offense is
the question of whether or not to testify at trial. Frequently the accused must
evaluate whether there are any facts which the state will be able to use to impeach
him if he decides to testify at trial.., One of the most common forms of
impeachment for criminal defendants is if the defendant has previous convictions
for either a felony or a crime involving dishonesty or false statement (even if it is a
misde~eanor). It is not uncommon for an accused to forego the right to testify in
ord~r to avoid having the jury hear about prior,convictions. But, if a defendant
. does decide to testify and let the jury hear about prior convictions, the exposure.of
said convictions $hould be limited to the purposes of impeachment. Ifdefemse
counsel does not handle the impeachmentprocess properly and allows the state to
get into the specific facts ofthe prior conv~ctions, this may properly be the basis
a Claim of ineffective assistance ofcounsel.
Florida Statutes §90.610(1) provides that a party may attack the credibility
of any witness, including an accused, by eviden~e that the witness has been.
convicted ofa crime if$e crime was punishable by death or,imprisoIUJ)ent in
excess of 1 year under the law under which the witness was convicted, or if the
crime. involved dishonesty or a false statement regardle~s ofthe punishment. If a
criminal defendant's testimony is to be impeached with prior convictions, the.
proper procedure is for the prosecutor to ask wh~ther the defen~t has ever been
convicted of felony or crime irivolving dishonesty or false statement and how
many times the defendant has been so conyicted. Jackson'v. State, 570 So.2d
1388 (Fla. pt DCA 1990). Unless the defendant's answers to those two questions
.
are untruthful, no further inquiry'may be made into the speclfics ofthe
rd
Convictions. 'McFadden v.. State, 732 So.2d 412 (Fla. 3 DCA 1999) [it
. is
improper to introduce the specifics ofthe prior convictions]; Rodriguez v. State,
761 So.2d 381 (Fla. 2nd DCA 2000) [when the witne~s admits his convictions, the
trial court errs by allowing the State to question the witness 'about the specific
convictions]; Hicks v..$tate, 666 So.2d 1021 (Fla. 4 th DCA ~996) lunless the
witness lie~ about his background, the jury is not to be advised of the specific
nature ofthe offense, only that it involved a felony or a crime involving
dishonesty or false statement]. The failure of defense counsel to object to
improper prosecutorial questions regarding prior convictions can amount to
ineffective assistance ~f counsel which prejudices the defendant's right to a fair ..

of

17

Florida Prison Legal Penpectives

trial. Rodriguez v. State, 761 So.2dJ81 (Fla. 2nd DCA 2000). .
In Rodriguez v. State, 7.61 So.2d. 381 (Fla. 2nd DCA 2000), ~e defendant

was convicted ofrobbery With a firearm and grand theft. At trial, the State
introduced c~rcumstantial evidence which allegedly identified Rpdriguez as one of
the individuals who robbed ajewelry store with two acco.~plices. Rodriguez'
testified in his own defense. I!L at 382. During his testimony, the prosecutor
repeatedly and improperly· cross-examined Rodriguez about the specifics of his
prior convictions, thus iJ;lforming the jury that Rodriguez had previously been
convicted of grand theft auto and robbery with a firearm. Id. Rodriguez's trial
attorney failed to object to the improper cross-examination regarding Rodriguez's
prior convictions. ML
,
.On appeal, the Rodriguez Court ruled that'defense counsel's failure to
object to the improper questioning fell below any standard of reasonable
professiomil assistance, and there is a reasonable probability that the results of the
trial would have been different but for her inadequate performance. Id. In "
reaching itS decision, the Rodriguez court pr{)vided: "[d]ue to the c~cuinstaJitial
na~ .ofthe case, which turned on the State's identification evidence and
·Rodriguez's credibility as a witness, we must reverse Rodriguez's convictions and
remand this case for a new trial because of prosecutorialmisconduct and
ineffective assistance of counsel applU'ent on the face· ofthe record." ML
Similarly, in Wright v. State, 446 So.2d 208 (Fla. 3rd DCA, 1984), defense
counsel, ~n an effort to preempt the State's cross examination of the defendant
regarding prior convictions, asked his client ifhe had ever been'convicted of"a
: crime." The defendant answered that he had been convicted of five crimes. liLat
209. Wright's five convictions were all for misdemeanors which did not involve
dishonesty or a false statementand thus, would not have been admissible in the
first place. Id~ The Wright Court found that defense counsel's "overt act of
in~odu~ingthe plainly harmful testimony was 'a serious and substantial
deficiency measurably below that of competent counsel,'" llh at 210, quoting
Knight v. state. 394 So.2d 997, 1001 (Fla. 1981). It was further found that Wright
suffered significant prejudice as a result of counsel's detic~ency in light of: "(a)
the extremely prejudicial nature ofthis type ofevidence, Roman v. State. 438
So:2d 481 (Fla. 3d DCA'1983); Cummings v. State. supra; vazguez y. State. 405
So.2d 177 (F1a. 34 DCA 1981), approved in part, quashed in part, 419 $0.2d 1088
(Fla. 1982); (b) the strong and effective emphasis placed upon it by the state
attorney in att~cking the defendant's credibility in final argument; and (c) the
closeness ofthe self-defense question..." \\!right at 210. It was thus determined
that there was a likelihood that the deficient conduct affected the outcome ofthe
court proceedings. Wright at 210.
18

Florida Prison Legal Penpectives
I

The right ofan accused to testify at trial is one of~e fundamental due
process rights. The effect ofan accused's right to testify should not be diminished
by ineffectiveness on the part ofdefense couns'el in allowing the juiy to hear either
improper impeachment with prior offenses which do not qualify ·for 'impeachment
or by allowing,the state to improperly cross-examine the accused about the
specifics of prior convictIons. If d~fense counsel is deficient ~ litniting the
, information the jury hears about prior convictions, it can be detrimental to the
defense and may qualify as ineffectivenes,s ofcounsel sufficient to justify vacating
the judgment.
.

..

Loren Rh%n is a member in good starUJing with the Florida Bar
and a member ofthe Florida Bar Appel/ate Practice Section. Mr.
Rhoton practices almosi exclusively in the postconviction/appellate
, area ofthe law. both at the State and Federal Level. He currently is
'appointed by the Florida Supreme Court to the Florida Criminal
Court Steering Committee. Subcommittee on Post-Conviction,Relie.f.
He has assisted hundred$ofincarceratedperso~ with their cases
and has numerous written appel/ate opinions. tIl '

Florida Prison' Legal Perspectives
I

.•

D.IL GRIEVANCES/APPEALS
AND
.JUDICIA.L REMEDIES
ny PAW\MERlUmA And HOWARD RICHMOND

Part Two Continued

•

THE DISCIPLINARY PROCESS

Disciplinary Team And Hearing Officer,
33-601.306
The DR hearing must be conducted by impartial staffmembers. A person shall not serve as it hearing officer or as
a member of the disciplinary team, or participate in the deliberation when they are;
(a) A Witness or the person who wrote the DR;
(b) The investigating officer:
(c) The person charged with review of the results ofthe disCiplinary hearing.
The bearing officer shall hear all DR ~ designated as minor. At any time before the plea the inmate may request
the case be referred to the disciplinary team. (601.302 (12) defines minor.violation).
.
The disciplinary team shall hear
disciplinary reports designated as major. (601.302 (11) defmes m~iur
violation).
.
.
Due proCess is violated when any oftbe above described perSOns are also a member of tile disciplinary team, this
infringes upon an inmatek entitlement to an impartial disciplinary fact-finder. Bitman y. FDOC. 662 So.2d 1030 (FIa. 1'1
DCA 1995). Mariah v. Moore. 765 So.2d 929 (Fla. 151 DCA 2000) (prejudging evidence). Some further examples ofblQs
are recited in Wade v. Farley. 869 F. ~upp 136~, 1376 (N.D.lnd. 1994).

all

Disdplinary.Hearings
33-601.307
No hearing shall commence prior to 24 hours following the delivery of the. charges except when the inmate·s.
release date does not allow time for such notice or the inm8tc waives the 24-hoUT period. PreVious F.D.O.C rules required
that the disciplinary hearing be conducted within 7 days from when the report was written. That rule no longer exists.
although Administrative Confinement Ride 33-602.220 (3) (a) stales that when discipliDaly charges are pending the h..-ngth
of time in AC sbaD Dot exceed 7 working days wtless ler authorizes an extension of 5 worldng days.
. The disciplinary team or bearing officer shall provide an explanation in the basis of findings section of Form DC
6-I 120 (24 HourlRefusal to Appear Waiver) whenever the ",aiver process is utilized.
The inmate charged shall be present at the disciplinary bearing unless a confirmed medical condition ~ents the
inm8te from attending or ~e.inmate demonstrates disruptive behavior. Battle v. Barton. 970.F.2d 179 (11 Cir. 1992)
(right to attend a prison disciplinary hearing is one of·the essential due process protecti9ns 'afforded by the Fourteenth
Amendment).
.
When an inmate waives the right to be present or refuse to be present at the bearing, the inmate may not submit a
written closing statement to the disciplin8J)' te8m or hearing officer in 'place of the oralcJosing.statement permitted by 33601)07 (I,) (g). The inmate may only make an oral closing statement concerninB the ilifraction. It the inmate refused. to
plea, it shall be treated as a not guilty plea A "no contest" plea shall be treated as a guilty plea.
The hearing officer or disciplinary team member sbalJ read the charge, ask the inmate if the charge is understood.
explain the range of penalties that could be Unposed if there is a finding of guilt and ask whether staff assistance is
required or· needed for the hearing. lbe hearing o.fficer or disciplinary team member shall read the statement of facts and
the inmate sh~J be asked to plea.
Ifthe inmate pleads "guilty" no further evidence needs to be heard. lfthe inmate pleads'''not guilty" evidence is to
be presented, including wi~ess statement ·fonns. If evidence is not revealed to the inmate, the reason(s) shall be
documented in the comment sections of either the Witness Disposition Fonn, the OocumentaJylPbysical Evidence Fonn or
the Videotape/Audiotape Evidence Fonn. Qsterback v. Singletmy. 679 So.2d 43 (1- DCA 1996); Vaughan v, Singletaly.
729 So.2d 411 (FIB. 1" DCA 1999).
.
.
The hearing officer or chainnan of the disciplinaJy team· bas the authority to require that other supporting.
documents be presented; the employee who wrote the DR, the investigating officer, or any witnesses, ~ at the hearing
to clarify infonnabon or facts related to the DR; and that further investigation be conducted, or evidence presented, or
statements presented of unavail~le witnesses.

Florida Prison· Legal Perspectives
The testimony of witnesses requested by the charged inmate shall be presented at the hearing througJi the written
.
Failure to sign and complete the witness disposition fo~. during th~ inve~gation co!lstitutes waiver to call
witnesses either live or by written statement. Listing witnesses names on. any other document will Dot result in their
testimony being considered.
.
_
The inmate may request additional witnesses who were not listed on the witness request fonn at the hearing where
the expected testimony proffered by the charged inmate indicates that the testimony is ~a1, relevant, and nonrepetitive and that exttaordinmy circumstances prevented naming the witness during the investigation. In no case shall n
witness be called (live or written statement) if the testimony would Pc ~levant, _aterial or repetitive.
•
Signed witness statements used as testimony shall be read at the hearing. Where a witness statement is not read
the reason shaJl be recorded in the wimess disposition form. Mjtiah v. Moore, 765 So.2d ·929 (Fla. lit DCA 2000). .
The only per~ns present during team deliberations shall be the team. empJoyees being trained, and others whom
the warden. the chief of security. or the classification supervisor have authorized to be present and detennined these
persons will n.ot disrupt the hearing and will benefit by observing the proceedings. Siebert v. Dugger. 595 So.2d IOlt'1
(FIa 1.:l1·DCA 1992).
The original charge cannot be reduced by the discipljnmy team to what might he tenned a "lesser incl~dcd
offense." Up to the point of announcing a decision to the inmate. the team or he8rlng officer may postpone ibe heariu'l
The entire DR may be returned for further review, investigation or C?Orrection.
If further review suggests a different charge shouJd have been indicated or that additions, deletions or change,;
should be made in the statement offhcts then the originator shall rewrite the DR, a copy of the new or corrected DR shall"
be delivered to the inmate. and a new investigation conducted. J'he original DR sball not be processed. A notation of this
occurr~ce shall be incorPorated in the findings ofthe team or hearing officer..
.
The inmate shaJl be inforD!ed oCthe. final deCision of the team or hearing Qfficer mid the basis for that decision,
Dsmyp v. Wainwright. 403 So.2d 569 (Fla. I" DCA 1981); Strong v, Wainwright. 38S So.2d 169 (Fla. lSI DCA J988).
(entitled to be given a copy of the written statement ofevidence relied upon and the reasons for discipUnary action against
.
the inmate).

witness Statement,·

. Disciplinary Team, Hearing Officer Findings and Action
33-601.308··
.
The diSciplinary team or hearing officer's findings shall enumerate the specific facts derived from the disciplinary
repQrt, the disciplinary investigative report or the witness statements and what specific eVidence was used in the team's or
hearing officer's conclusion;
The team or hearing officer shall make one of the following findings:
(a) Dismiss the cllarge. If the charged is dismissed the DR shall not be posted or placed in the inmate'file. :\
dismissal may occur dueto procedural errors, technical errors or duplication ofcharges. A dismissal is without prejudice
lind the DR may be rewritten and reprocessed.
.
(b) Find the inmate not guilty. When this occurs the disciplinary report shall not be posted or placed in the inmate
file. The inmate shaJJ be found not guilty when the facts do not support the charge. Stokes v. FDQC.. 948 So.2d 7S (Fla.
1at DCA 2007) (Inmate successfully grieved issue of whether DOC. erred in not obtaining a detennination by health care
Wlff1ha1 conduct was not a suicide attempt as defined by RuJe 33-601.314, F. A C'~'s. 9-30 of penalty table sets fonh
mteria for self-mutiJatiori~) IronicaJly, recent amendments to 33-601.314 (dated 5-18-(8) repealed 9-30 altogether.
(c) Fin~ the im:nilte guilty. Ifthe inmate is found guilty the disqipl;inary team sbalI impose any or a combination of .
actions listed in 33-601.308 (a) - (j). Applying AC time to DC $te is discretionarY.
[Due process requires the DR worksheet· (Form DC 6-112E) to reflect all penalties' imposed as a result of the
infraction especially where specific options are listed on the worksheet. See Sect 944.28 (2) (c), Florida Statutes. In
ufditioD, for purposes of ex post facto see Britt v. Chiles. 704 So.2d 1046 (PIa 1997). A timely challenge in either
.
.
,
'
scenario couJd prevail.
Following the decislon of the U.S. Sup~e C'.ourt in Superintendent v. Hill. 472 u.s. 44S. 457. lOS S.Ct. 276R
(1985), Florida Courts have adopted the "som'e evidence" standard regarding prison disciplinflly proceedings. Newell \'.
Mggm. 767 So.2d 1240(Fla. 1at DCA 2000).
.
In other words, regardless of favorable or exculpatory evidence in the record, a decision that's supported by the
oostence of "some evidence" is sufficient to satisfY the standard. . Williams v. fountain, ,77. F.3d 372, 375 (11 th Cir. 1996).
But see.walsh Y, Finn, 865 F, Supp 126 (S. D. N. Y. 1994) (cont:nuy evidence in the record undennined "some evidence')..
lind, Chayis V. Rowe, 64~ F.2d 1287 (71h Cir. 198 I).
.
. With such a low standard (burden of proof) a guilty finding is imminent at the DR hearing stage. The couns
bowever might take a different view if the record is unreliable ~ a whole.]
21

Florida
Prison Legal Perspectives
,
[~orfeiture ofuneamed gain time shall be considered when the i~ate has not acCrued enough gain time to achien
the desired corrective results.
Penalties for multiple disciplinary actions should be· clearly stated in the basis of findings as to the current or
consecutive requirements.
Loss ofgain time shall not be concurrent with any other 10s.Ii ofgain time and shall be cumulative.
Review and Final Action
33-601-309
TIle warden acts as th.e final reviewing and approving authority fOr all DR s in which the recommended pellaltj
does not exceed a loss of more that 365 days loSs ofgain time.
The regional director acts as the final reviewing authority for all DR's in which the recommended penalty exceed!
365 days loss of gain tUDe.
The Warden or regional director shall approve, modify downward or disapprove the recommended disciplinaI)
.
action.
The warden or regional' director shall approve. modify downward or disapprove the recommended discipJinRJ')
action.
The warden or regional director shall remand the DR to the hearing officer .or disciplinary team for rehearing. I
new evidence or procedural error is discovered.
'

.

Rehearings. . 33-601.310
If an error is discovered at any time after an inmate has been found gwlty of a disciplinary iirnaction, the wardell
the facility administrator ofa private facility, or the deputy director of institutions (classification) or designee is OOthOriUl
to cause a rehearing to takt! place within 30 days of the discovery of the error or the receipt of a success~ grievance 0
appeal. The specific reasons shall be noted on the disciplinary Iqlort. A rehearing shall not be held foUowing a finding (1
"not guilty','.
.
The new investigation may incorporate those portions of the previous investigation that are not affect by the nee
for the rehearing. No inmate is authorized to request a rehearing.
Miscellaneous Provisions
33-601.311
This section pertains to Interstate Compact Cases, LTansfers and related matters that may be assOciated wilh Ih
disciplinary action taken.
No inmate has the right to request the expungment of a DR in conjunction with this subsection. Henderson,
Crosby. 891 So.2d 1180 (Fla. 2nd DCA 2005).
Rules 33-601.3 J2, 33-601.319 8D$l. 33-601.314 concern telephonic or video disciplinary hearings, fonos and Rul
ofProhibited Conduct and Penalties for infractions respectively..
.
I
.
In Conclusion

.
The foregoing analysis mainly covers the high ppints' of the disciplinary process. While keeping in mind a
agency (F.D.O.C) must comply with its own rules, Buffa v. SingletaJy, 62 So.2d 885 (FIa. 1111 DCA 1995). ·it is wei
. advised that anyone engaging. the process should review 33-601.301 through 33-601.314 to gather a reasonabl
understanding of what's involved and the requirements prison officials must follow throughout the process.
Most often prisonerS facing disciplinary action are trying to defend themselves from a confinement cell, which 1
very difficult. And the time to do so is often very liJriited. In order to present the best defense and/or preserve is~es thl
may be critical.in the administrative appeal or later in court it is essential that you know .what the rules and laws are i
connection with DR's so yon can properly raise any violations ofthem. Most often. ~e best and most effective challenge
to a DR involve challenges alleging that FDOC rules were not followed in the process and/or. that established due proce!
was not afforded. Therefore. the charged prisoner should immediately contact the law h'brary for a copy of the DR mt€
upon placement in confinement Also useful is to request other source materials that help explain what "due process"
required. When requesting a copy ofthe rules from the library (Rules 33-601.301 through 33-601.314) also request 8 COil
of Rights of Prisoners, 3il1 Ed. (MushJin), Volume 2, Chapter 9, "Disciplinary Proceedings." Also a copy of Plymel1
MQQm, 770· So.2d 242 (FIa. JII DCA 2000), which may be of great assistance in understanding the whole process I
challenging disciplinary action. •
.

22

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