FDOC HAZARDOUS TO PRISONERS HEALTH By Mark Shenvood and Bob Posey
• Thirty percent of the 129 doctors • At least one in every nine Florida through the 28th, shows that the who provide medical care to prison· prisoners suffers from severe men DOC has been 8 dumping ground ers incarcerated in the Florida De tal illness which prison guards are for troubled physicians. Doctors partment of Corrections (FDOC) not trained or equipped to deal with. who have repeatedly losl malprac· have marks on their records ranging tice claims, been found guihy of from malpractice to fraud. The The above are just a few of the sexually abusing their patients, been FDOC rarely fires or disciplines findings of a special investigative found guihy of fraud, and who only doctors it hires. even in cases where repon conducted by the 81. Peters have temporary or restricted li negligence causes prisoners to die. burg Times recently. In a three pan censes, or who have been disci series lhat made headlines in that plined by the State Board of Medi • Dozens of Florida prisoners have Centrol Florida newspaper during cine, are a bargain for lhe DOC. died since 1994 after receiving in lhe month of September, facts and And that appears to be the real in adequate health care. statistics were revealed about the centive for the DOC, which is con~ Florida prison system that had been stitutionally required to provide at • Recent Slate and federal legisla· concealed from the public. least some health care for the tion have made it almost impossible While prisoners in Florida, and 68,000 prisoners in its custody. for prisoners to successfully sue the their families, have been very aware Department of Corrections when that die quality of medical care has Life and Death Cost-Cutting subjected to medical malpractice, been going downhill for several The average doctor straight out even when it results in disfigure years, and while taxpayers have of medical school averages ment or life-threatening complica been paying more and more, the $120,000 a year. The DOC pays far tions. Even if legal action was suc Depanment of Corrections has been less, with salaries for the doctors it cessful, prison doctors are shielded able to keep lhe true state of affairs hires to treat prisoners running from from personal liability and taxpay from public scrutiny. S72,OOO to 586,000 a year. \Vilh ers are required to. cover any legal The special report by the Times, prison doctors being fully indemni· judgments against the doctors. which ran from September 26lh fied by tbe stale, lhe prison system
PLP INSIDE THIS ISSUE: FPLP GRAND JURY CONVENED IN VALDES' MURDER A SYSTEM OF JUSTICE AIDS, HIV RATES HIGHER IN PRISON FDOC SECRETARY MOVES TO RESTRICT MEDIA ACCESS NOTABLE CASES THE STATUS OF PAROLE IS A CONSTITUTIONAL QUAGMIRE FSP PRISON GUARD ARRESTED IN DRUG STING OPERATION offers a safe haven for troubled tionable Doctors Ihat is put out by a FLORIDA PRISON LEGAL doctors by allowing them to avoid national consumer group. PERSPECTIVES malpractice insurance Ihat increases Three of the DOC's doctors POBox 660-387 when a doctor has problems. have a history of sexual misconduct Chuluota, Florida 32766 David Thomas, the DOC's chief with patients. Publishing Division of: doclor, admits that economics is a Fifteen of the DOC's doctors rI.ORJD~ 'IUlIO~..tS u:c.n ..ID O.c.u F.P.L.P. VOLUME 5, ISSUE 6 Page 2 nied from practlcmg medicine in endy did not appreciate Moore's pro fensively said, "People make mis Ohio. The DOC hired her despite posal 10 do away with them and in takcs, and other people suffer for it:' those marks on her record. September they struck back with a Dr. Arnold Azcuy is a medical news release thut prompted wide Bedfam in the Sun executive al North Florida Reccption spread media coverage. The 51. Pelershllrg Times report Centcr. He is in charge of reviewing According to the CMA, since did not stop by just looking at the prisoners' medical cases sllltewide January 1994 at least 56 Florida pris medical hell that Florida Prisoners are and makes cost-control decisions oners have died from inadequate incre~lsingly being subjected 10. The about when to deny care. Dr. Azcuy medical treatment. Thnt's almost one third pan of the Times' series ex paid out on three medical malpractice in eight of the 463 deoth records that plored the care that the increasing suits before coming to work for the the eMA reviewed for that period. number of mentally ill prisoners re DOC. Two of his claims, both in "These deaths could have been pre ceive while in florida's prisons. 1993, involved the deaths of his pa vented," said Linda Keen. executh e According to a recent study by the tients. director of the CMA. Instcad, for U.S. Justice Department, an estimated Another DOC doctor. Stanley years, CMA records indicate, Florida 284,000 prisoners - 16 rercenl of Ihe Dratler. lost his medical license for prisoners hove been dying by the doz U.S. prison and jail population - suf three years in 1986 for fondling fe ens as a result of substllndnrd or sim fer from severe mental illness. (Sec: male patients. Before coming to the ply negligentlTlcdicol carc. FPLP, Vol. 5, Iss. 5, "Mentally 111 DOC, Dr. Jose Gonzalez was disci The CMA has been doing the job it Prisoners") Many experts sny that Ihe plined by the medical board after giv was authorized 10 do. It pays consult Justice Department's study confirms ing the wrong medicine 10 a pregnant ing fees to private doctors with no ties the belief that prisons have become woman causing her uterus to rupture to the DOC to review a sampling of the nation's new mental hospitals. and the fetus to die. deaths at the state's prison hospitals. With thc wholesale closings of Every few weeks the CMA sends a public mental hospilals in the 1960's I)ying by the Dozens report on the findings of Ihose doctors and the prison-building boom of the The DOC maintains that the to the governor. the legislature. and past two decades. prison oncll be medical care being provided (0 pris the DOC. BlIt the CMA cannot tell comes the only option available to oners is as good as one can get on the the DCC to do anything. their power menially ill persons unable to cope olltside. But then they never thought is strictly limited by law. with the pressures of society. From a anyone \\ould care enough to look Kay I-farris. who is in charge of high of 559.000 in 1955, the number closer. or that DOC SecretaI') Moore preparing the Cr>.IA rcpons. said shc of patients in state hospitals nation would uninlentionall) open up Pan feels that despite the obvious prob· wide dropped to just 69,000 in 1995. dora's box. lems exampled in the repons that At the same lime. the number of jail Earlier this year Moore pro nothing ever changcs. '-The a\crage and prison beds has quadrupled in the posed to Gov. Jeb Bush that money John Q. Cilizen doesn't care aboul last 25 years, with over 1.8 million could be saved if three oversight inmate health care," Harris said. Americans now behind bars. committees, the Florida Corrections The chief administrator of the Florida is IlOt an exception. As COllllllission (FCC), the Correctional DOC's health care system, John noted in the Times repon, with the Medical Authority (CMA), and the Burke. disputes Ihat the depanment is state prison population over 68.000, Correctional Privatization Commis at faull. Despite Ihe CMA's asser at least one of every nine prisoners in sion (CPC), were done away with. tions. the depanmcnt's record is a florida suffers from severe mental Moore told Bush that those entities good one, he claims. '-A perccntage of illness. (that provide n measure of oversight people are going to die no matter For some of the incarcerated men of the DOC's operations) are unnec what you do, and I don't think our tally ill, prison offers access to psy essary, that the department can super percentage is inordinately high con chotropic drugs and Irc:Hment that vise itself. sidering the population we take care they lIlight 1101 receive 011 the outside. That proposal rumed a few of:' Thomas said. But for others, prison orten cxacer feathers and focused altentian on just Thomas also noted Ihat there arc bales their illnesses as they struggle what those committees do, ironically an additional 820 prisoner dcaths to deal with officers unable or unwill Ihey are very seldom ever heard from since 199~ that the Cr>.IA hasn't re ing to distinguish between mental or mentioned in the news. viewed. and knowing that they don't symptoms and willful unruliness. The members ofthe CMA, a group have the funds. he disingenuously Punishment and discipline against set up by the legislature to audit asked why they didn't review them mentally ill prisoners IS common and prison medical care in 1993. appar- too. ;'Wc'rc not perfect," Thomas de- on averagc results ill considerably F.P.L.P. VOLUME 5, ISSUE 6 Page 3 longer rime behind bars, the Justice DOC budgct. Medicine, notes that, "The incarcera· Department study found. "It's being tightened down as tight tion of the mentally ill is a disastrous, ;;;\ prison is absolutely the worst as we can gct it," said DOC's John horrible social issue." Subjecting the place for somebody with severe men Burke. ';(But) we think we're still mentally ill to isolated confinement tal illness. and absolutely ccrtain to providing care that meets the constitu situations "can exacerbnle thcir hallu exacerbate their symptoms," said Ron tional standard:' Not so, says others, cinmions or delusions," Jamison said. Honberg, legal director for the Na· even former DOC emplo)'ees. Yet, despite the wcalth ofevidence tional Alliance for the Mentally III. showing thc destructive and damag· John Burk, dcputy dircctor for the Destructivc Solution ing effects of isolated confinement on Florida DOC's health carc system, "As thc)' cut mcntal health scr· the mentally ill, the Florida DOC has said, ;;Once these guys are put in vices, which is whm thcy'rc doing, actually incrcased its usc, and plans prison they've gOI to function in a yOli arc going to have more and lllorc to increase it even further without structured environment - a very struc inmates who are unmanageable be consideration of the long term effects turcd cnvironment - and some of them cause of mental illness," said Connie or the eventual cost to society or tax· can·t. But Ihat's not a correctional of· Schenk, a fonner DOC psychologist payers. (Sec: FPLP, /3 .. t iJ>suc, "The ficer's fault:· who quit in frustration during August. Return 10 Draconian Days in FDOC). Many experts feci that without it (See: This issue, "Beatings, Corrup. being necessary to assign just who is tion, Cover·ups Detailed to Senate by Decndes of Neglect at "fault;' it is obvious that the Flor· Prison Psychologist.") "The way (thc Allegations and cvidencc thm thc ida DOC is doing a poor job of deal· DOC] deals with mcntally ill inmates medical care available to Florida pris ing with a growing crisis within the who can be problematic is just to put oners is far below recognizcd stan prison system as concems the men them inlO close management (sensory dllrds, and thaI unneccssary dcaths tally ill. Mental health slaff in the depriving confinement]. where they result from same, are nothing new. prisons arc often ovcnvhelmed by don't get near the access to help thai For 20 years. between 1973 and their case loads and operate in an at they used to," said Schenk. 1993, Florida's prison system was mosphere wherc guards and adminis· According to Terry Kupers, a fo· under the control of federal courts in tmtors view mental health staff as rensic psychologist who wrotc a book a case that started oul challcnging the coddlers who nrc easily mllnipulated about thc devastating impact thaI con· poor qualily of medical care provided by prisoncrs. finemel1t can havc, prisoners left with to state prisoners. "Often its security who wants to little contaci with others often become Throughout thai case courl· make the call that inmates (fake men· psychotic and filled with rage. appointed mcdical teams found that tal heahh problems), so that it's okay Social science and clinical litera prison officials were prO\'iding be· not 10 provide treatmcnt for them. ture have consistently reported that low·standard medical care time aftcr There's an attitude thm all inmales are whcn cvcn mentally nonnal human time. After COSily improvemcnts. and (faking]," said Helen Cunningham, beings arc subjccted to social isola prcssure from thc federal COllrt. that who quit the DOC in August as Baker tion and reduced cnvironmental casc was finally settled in 1993. wilh Correctional Institution's senior psy stimulation; they may deteriorate the state promising to provide medi· chologist. Cunningham said she often mentally and in cases actually de· cal and menIal health treatment had 10 wait days before guards would velop psychialtic disorders. The cf· equivalent to the community's stan· bring prisoners rcquesting mental fects of such isolatcd confinement al· dard ofcare. heallh care to her. She said she was most certainly creates more problems Bill Sheppard, the lawyer who treated worse by prison guards if she for lhose already suffering from men reprcscnted prisoncrs in that federal wrote up reports on allegations thm tal illncss. case, said that the problcm today is prisoners had bcen abused, as she was "It becomes a vicious circle the slime as il was two decades ago: often required to do. especially if the mentfllly ill illl1lme Lack ofmoney. The DOC spends ovcr S-l6 million hurts an officer." commented Kupers. "Every damn death I've seen a year on mental health. but still is ';Rather than providing any therapeu is a sad story," Shcppard said. "And falling behind. In the last two ycars at tic treatment, Ihe guards can gct more thc legislatutC is the ...damn cause of least 65 mental health stafT positions and more brutal. and then the inmates it." havc been cu!. Thc incrcflsing num· become even more violent and disrup Another lawycr, RnndalJ Berg bers of mcntally ill entering the sys· tivc. It just escalates." of the Florida Justice Institutc, said tern and lhe rising costs of psychotro Kay Jamison, II professor of psy· medical care did improve in thc pris pic drugs is growing fasler than Ihc' chiatry OIl the John Hopkins School of ons up through the lawsuit in 1993. F.P.L.P. VOLUME 5. ISSUE 6 Page 4 "Things gOI measurably better. But il reduce the exorbitant phone rates be· death row prisoner Frank Valdes by didn't take long for it 10 gel back ing charged family members and prison guards at Florida Siale Prison where it was.... And ii's getting pro· friends of Florida prisoners. (FSP) on July 17, 1999. gressively worse." Berg commented. It is reality that it takes money for The grand jury is expected to meet It has become so bad and prob· the organization to operate. Subscrip- several times, up until January 10th, 10 lems are so rampant that even Flor· tion donations cover the costs of pub. examine the facts surrounding Valdes' ida's nonnally prison·myopic legisla· Ii cation and distribution of the news· death and to question witnesses. tors have had to take noticc. Accord· leller, but leave lillie left over to fi Eleven people were subpoenaed before ing 10 Sen. Skip Campbell, D· nance the other efforts that are so nec the grand jury on the first day in what TamMie, vice chainnan of the Senate essary ifchange is to be had. was described as a scene-setting Criminal Justice Committee, "I can As veteran supporters of FPLP meeting to familiarize the grand jury assure you I get a leiter a month from know, during the last IwO legislative with this case that has rocked the Flor· inmates saying, 'Tm nOI gelling sessions in Tallahassee, FPLP has ida Depanmenl ofCorrections. proper care.' I'm slarting 10 believe been one of the primary sponsors of Among those who appeared the now Ihal maybe Ihey arcn'l gening d(ly~long rallies held in the Capitol tirst day were James Crosby, warden the treatment [they need]:' Rotunda to educate lawmakers about of FSP; William Hamilton, Alachua problems wilhin the Department of County Medical examiner; Jimmie lSource 51 Petersburg Times. 9126-28i99 Or Corrections. Once again FPLP will be fandoStntlfU'f/III'99] Burger, a nurse who examined Valdes in Tallahassee working for prisoners at the prison and who later resigned FPLP NEEDS lind their families in April 2000, only from the DOC; a prison medical re· YOUR SUPPORT a few short months from now. Your cords employee and nursing supervisor Teresa 8I1m.f. Publislwr donations arc needed 10 make this up for the DOC; lind, two Bradford Co. coming Rotunda Rally the biggest and paramedics. Thc publicalion of this newslcner most successful ycl. Money is needed Earlier in September, Chief Circuit and Ihe projects takcn on to benefit for displays, brochures, rental of ta· Judge Robert Cmes granted State At· Florida prisoners and their families is bles and chairs, rental ofa PA system, torney Rod Smith's motion to change made possible through Ihose who and hopefully to allow some transpor· venue of where Ihe grand jury would suppon tbis valuable resource by sub· tat ion 10 be rented so people can at· convene from Bradford Co., where scription and supplemental donations. tcnd from Ihe middle and soulhern FSP is located. to Alachua County. In the past year the organization portions ofthe state. Smith had argued that a grand jury in has worked hard to address the con· Now is the lime your suppor1 is Bradford Co., would be "improperly cerns of its members and has needed. If you have not made a dona comprised" since FSP is the largest achieved numerous successes through tion to FPLP recently, please show employer in the small rural county. those efforts. FPLJ> staff and menl your SuppOr1 by making a donation, Several prisoners who were in bers successfully had the FDDC re· large or small· every lillIe bit will cells in the immediale vicinity of consider its plans to reSlrict mail to help to allow FPLP to continue being where Valdes was allegedly brutally and from prisoners and prohibit effective in the coming months and beaten and stomped to death, resulting stamps from coming Ihrough the mail. year. in cvery rib being broken and his testi FPLP slafT successfully assisted in FPLP is your voice, speaking Olll cles crushed with boot prints covering having new visitation laws adopted and taking action. If you believe in his body, are expected to be lestifying Ihat will result in improved visitation the purpose and goals of FPLP then before the grand jury at some point. for families with an incarceraled don't delay ~ send in your contribu Nine officers are suspected of in loved one. The staff has mel with and tion today. All donations are tax de· volvement in Valdes death. This scan provided information to statc legisla· duclible. dal has opened the DOC up to intense tors, news reporters and law cnforce· Togcther, we have made and will media scrutiny in almost every area ment agencies concerning the condi continue to make changes. _ and lead to almost continuous revelo tions of confinement that prisoners lions of gross mismanagemem, abuse arc being subjected to. And FPLP has GRAND JURY CONVENED of prisoners and corruption in the DOC worked by itself and with other or· IN VALDES' MURDER since Valdes denth. ganizations 10 correct problems at In a preliminary move, 011 October several institutions ovcr the past year, GAINESVILLE - Alachua 29 Ihe grand jury issued a sealed in and rccently FPLP staff have been County grand jurors convened dictment against one of the nine working to have something done to 9/29/99 10 begin a review of the sus· guards, Montrez Lucas, charging him pected beating murdcr of former F.P.L.P. VOLUME 5, ISSUE 6 Page 5 witll aggravalcd banery, battery on an rastly maintained lhat he did not pull reluctantly agreed because in his own inmate and coercion to aller reports. the lrigger, but he still ended up with words, "Nothing can be worse than Those charges stemmed from an inci a death sentence in 1990. Florida." dent the day before Fmnk Valdes was Under a deal made with Virginia (Source: .51 Pelersburg 7i'mes, IO/5f99; Ilill beat to death. According to authori during A.uguSl, Bill was sell! to that Van I'oyckj • ties, Lucns had beat Valdes on July state's death row early in October, 16, and then altered reports to hide his and a Virginia prisoner, probnbly not A SYSTEM OF ,JUSTICE? Drew Hanson actions. Lucas lurned himself in 10 from death row, will be sent to Flor When ajl/sf calise reaches if:.'jlood police on Nov.] and was released on a ida in exchange. fide... whale}.·er sfa!1(l~ in the way /flllst $50,000 bond. "To the best of our knowledge, fall before il.\' overwhelming power. A prosecutor in Gaincsville said we have never transferred a death row Carrie Chapman Cau lhe 21 member grand jury will con (prisoner) before, bill because of the tinuc its investigation and murder unique circumstances surrounding [n the wake of new allegations of charges arc expected to be filed in the Van Poyck...we have decided he will corruption within the Department of Valdes' death. be in lhe Virginia system inderi· Corrections (DOC) following lhe On NovA eight of the nine sus nitely," said FDOC spokesman C.J. dcath of an inmate al Florida State pended guards suspected in Valdcs' Drake. Prison (FSP), Ihere has been n Oood of murder appeared .1t a 90-minute Bill is expected 10 be a willless as questions regarding the competency of closed door meeting ill Gainesville the invesligation continues into the majority of DOC's workforce. called by SUite Attorney Rod Smith. Frank's death. In the two weeks be Following the murder of death row A source stated the meeting was fore Frank was killed, Bill had been prisoner Frank Valdez, fellow correc callcd 10 discuss whelher the guards writing numerous letters, including tional officers buill a nood gate to cir will have anorneys represent lhem as one to a Federal judge and various cumvent the Oood tide of inquiries individuals or as a group. reporters, warning that guards at FSP ~rom law enforcement officers seeking [Source: Gainesville SUII; 9/29-30/99; were "OUI of control" and routinely IIlculpatory evidence against the offi Florido Til1le.~ Vl/iOll, 11/3,4,5/99] • beating prisoners on the now infa cers involvcd. Not even the death of a mous X-Wing. Arter Frank was killed human being could make a crack ill he continued to write to whoever he VAN POYCK TRANSFERED the floodgate that would create a break thought might listen, detailing how TO VIRGINIA in lhis wall of silence. Even lhe Brad guard bem Frank to dealh and how ford COl/II'y Telegraph, which happens both he and Frank had been threat One of Florida's most knowl to be the local newspaper for Bradford ened by guards throughout their incar edgeable and effective prison litiga County where FSP is located was in cenl.lion at FSP. lors, William Van Poyck, 45, became differcnt to the lllurder thaI occurred in Prison officials claim lhey did nOl the first prisoner on Florida's F.P.L.P. VOLUME 5, ISSUE 6 Page 7 from Ihc Dcpartmcnt of Corrections up to 567 new prison guards. percent of the 700,000 people with (copy attached) the 36 month time Another suggestion made by HIV ill 1997 spent time behind bars; frame is what the ':U1e provides for Moore was to reduce the DOC's ad and, up to 32 percent of Ihe 300,000 the specific circumstances listed in ministrative staff by 287 positions. Americans with hepatitis C went the rule, and it has not been changed which would include all librarian posi· through a correctional facility in to 18 mOrHhs." Thai response was tions throughoLlt the state. 1997. dated September 9, 1999. Critics of Moore's proposals, in [Source: USA rODA )', 9/1/99] • In the "attached letter" referenced cluding members of the Florida Cor in that response, dated September 3, reclions Commission, Public Defend BEATINGS, CORRUPTION, 1999, to Wm. Harold from Perri K. ers and State Attorneys, note that his COVERUPS DETAILED TO Dale oflhe FDOC, was stated: "Rule suggestions would cost more in the SENATE BY PIUSON 33-601.602 (formerly 33-9.023) long run because it would cost Illore to PSYCHOLOGIST has nOi been amended to change Ihe incarcerate a individual than to place time frames for eligibility for consid him in a pretrial illlervention program. In a leller to the Florida Senate eration for community release pro Stale legislatures will have the fi Criminal Justice Committee. dated grams." nal say on thc prctrial program when Sept. 13, " prison psychologist said Therefore, lhe FDOC central of· the)' put the budget together during she quit her job in frustration after fice is denying thai there has been next spring's legislative session. trying for three years 10 warn prison any change in the time frame eligibil [Source: Or/alldQ Semilltl. 9/23199] administrators of abuse or prisoners ity requirements for work release. by guards at two North Florida pris AIDS, HIV RATES If any FPLP reader has a copy of ons. the memo that was allegedly sent HIGHER IN PRISON Connie Schenk 53. who holds a from Ihe central office directing such doctorate in forensic psychology, quit a time frame c1mnge, please send our A report released during Sept. working for the Dcpanrnellt of Cor slaffa copy of it. • 1999, that was funded by the Centers rections Aug. 31, after. what she for Disease Control and Prevention claims was retalialioll was taken FDOC SECRETARY MAY (CDC) and the National Commission against her for her repcated auempts CUT ADMINISTRATlVE on Correctional Health Care, shows to report prisoner abuse. that prisoners and those newly released POSITIONS SO MORE Schenk told senators that prison from prison are much more likely to GUARDS CAN BE HIRED administrators at both Taylor and have AIDS and other infectious dis Liberty Corr-ectional Institutions had eases than people in the general popu met her alternpts with defcnsiveness. In September 1999. Department lation. hostility and rcwliation. Offering dc of Corrections Secretary Michael This study was the first national tails, Schenk said she had frequcntly Moore announced that he is looking 'estimate of infectious disease rates saw injured prisoners at Ihe two pris at ways to hire more prison guards by among prisoners, and found, in parI, ons who claimed thcy had becn cutting a beneficial program designed ihnt the prevalence of AIDS is five bcalen by guards. to divert nonviolent offenders from times higher among prisoners than in [11 1996. when she first started at the prison system and by reducing the general populmion. And signifi Taylor el, Schenk said she routinely DOC administrative staff, including cantly, the number of prisoners in filed repons 011 suspected abuse of the elimination of all librarian posi fected with HIV is eight to tell times prisoners. She said omcers and su tions al institutions statewide. These Ihm of the general population. pervisors either did nothing or be cuts will generate the money neces Lead researcher Theodore came hostile towards her about the sary to hire more prison guards. Hammell of Abt Associates, a Cam reports. "I wcnt to the warden, Greg In response to Governor Bush's bridge, Mass., think tank, said, "The Drake, and told him abuse was going budget cuts, administrative agencies vast majority of prisoners return to the on [in the confinement lin its]. He JUSt have been advised that if they wish 10 community. Treatment (while incarcer said. 'I don't think so. Dr. Schenk:' add something in the next fiscal year ated] will not only benefit prisoners. "Absolutely nothing would happen." they will have to suggest ways to pay their families and their sex partners, she said. for it without state dollars. Moore but public health." At Libeny Cl, Schenk said she made several suggestions. One sug Other findings of the report in trlcd to be more diplomatic in report gestion was to cut the pretrial inter clude: Up to 17 percellt of the 229.000 ing the abuse she found. She reponed vention program operated by the Americans with A[DS went through her concerns more inronnalJy until DOC and to usc that money to hire jailor prison during 1997; Up to 19 F.P.L.P. VOLUME 5, ISSUE 6 Page 8 last year when a prison guard came to in effect since 1985, allows the media prisoners. Moore knows the media her and told her he was being threat~ to interview specific prisoners by sub~ will closely report any findings of ened by fellow guards whom he had mitting a written request, and if the Ihat investigation. seen beating a prisoner. She and the prisoners agree to be interviewed. The department in general, and guard then went to the state inspector Moore wants to change that. In a mes Moore in particular, have been em general and Florida Depanment of sage posted on the department's Web barrassed and humiliated by the re Law Enforcement (FDLE) officers site during September, Moore indi ports that have flowed from Ille me· were sent to investigate. The inspec~ cated that prisoners' access to the me~ dia recently. Back-to-back reports tor geneml's office said the case re dia should be restricted, implying, detailing abuse and corruption in the mained open almost a year later, and without slating it outright, that the me department have surfaced in print and was still open as of Sept. 1999. dia is too sympathctic to the on television and radio repons all Schenck said she had been told the (deplorable) conditions of confinement over Florida. Recent news reports FOLE had "referred" the case back to in Florida's prisons and too eager to have detailed how -almost \0 percent the DOC to handle as it saw fit. publicize negative aspects of the de of the department's employees have During July Schenk's boss at partment. criminal records ihemselves, many Liberty CI told her to clean out her Using disingenuous spin control Wilh violent criminal records. Other desk, that she was being involuntarily techniques to try to divert attention news reports have focused on how transferred to the Corrections Mental from the true purpose of the considera many DOC employees only have Health Institution at Chatahoochee, tion to change current policies, Moore minimal education and are not prop Florida. She said that was in retalia~ stated in the Website message that the erly trained. tion for her attempts to report abuse department's job is to protect the pub Moore waS apparently embar of prisoners at the prison. lic and crime victims, that, "with crimi rassed when Republican lawmakers "I can tell you firsthand that cor nals committing notorious crimes, with in the state Scnate rorced him to ap~ ruption is rampant, abuse of inmates the media eager to publicize them, and pear before them in early September and staff is routine and cover-up is an with more attention being given to the where he was placed on the hot seat established practice (in the Florida plight and rights of victims, we are trying to explain what is going to be Department of Corrections]," Schenk obliged to review ~ur policies." done 10 correct the problems that wrote to state senators. The DOC did Opponents ofany change in the cur keep coming to light through the me not respond to reporters seeking com rent media access policy note that the dia's attention. And members of the ment on Connie Schenk's damaging news media has not suddcnly focused House have stated that Moore will allegations about the department. on "crimes comrnincd by criminals" also be required to do some explain any more than it ever has been. Media ing to that political body. (Editor: Greg Drake, the former war reportage of crimes, even notorious Michael Moore did not comment den of Taylor CI has now been pro crimes, occurs at the lime of the crime on what steps might be taken 10 re· moted 10 Regional Director over all or during trials, and before convicted strict reporters access to interview prisons in the Northern part of Flor offenders ever enter the DOC's con prisoners about their conditions or ida.] trol. confinement. Nor was any mention [Source: Miami Herald, 9/161991 • What Moore's true concern must made on the Website message of the be, concludes opponents, is the spot fact that prisoners may contact re FDOC SECRETARY light that the media has focused on the porters and other media representa MOVES TO RESTRICT department in the past few months fol tives through confidential mail, al MEDIA ACCESS lowing the brutal murder of death row though it is felt that this will be the prisoner Frank Valdes in July,"in which real behind-the-door focus of the re The secretary of Ihe Florida De a gang of historically abusive prison view oftile current policies. partment ofCorrections (FDOC), Mi guards are suspects. Since then report According to U.S. Supreme Court chael Moore, announced during Sep ers have dug up, in some instances decisions, prison officials may re tember, following a barrage of atten based on information supplied by pris~ strict personal access of the media to tion on the department by the main~ oners or prison reform groups, several prisoners, as long as prisoners have stream news media, that a formal re very serious problem areas in the de alternative means to communicate view will be conducted of tile depart partment And Moore is 110 doubt con with the medin, a right protected by ment's policies of media access to cerned that even the FBI is conducting the First Amendment. The real threal prisoners. an investigation of the entire rDOC to Moore and of any desire to con The existing policy, that has been citing reports of system-wide abuse of tinuc the historical and planned future F.P.L.P. VOLUME 5, ISSUE 6 Page 9 abuse of Florida prisoners is not per nold began a campaign of retaliation prison for murder. told the coun that, sonal media intervie\\ access, it is against her himself. including falsify ·~o more lives need to be lost before prisoners being able to communicate ing job evaluations and placing false corrective action from the court is with the media period, especially disciplinary repons in Fasanella's files. granted. Whole lives and safety are in confidentially. Fasanella also claims that she reponed grave danger of being violcntly at Any change in the current media the sexual harassment to the Assistant tacked at any moment, to be severely policies of the FDOC will have to be Superintendent, Frank Youngblood, injured or, worse yel, killed by stafT." done through the rulemaking process, and to the Superintendent at that time, Jackson clnimed in lhe suit that affording revicw and prisoner and David Farcus, who also nevcr took any beatings have been covered up for public comment, including a public action to stop the harassment, while years at FSP rind lhat prisoners are hearing if rcquested. The last time the Youngblood aClUally began harassing not given medical care because "that FDOC to change its rules, approxi· her himself. She claims that after she creates a paper triaL" He also claimed mmely two years ago. to restrict the infonned Youngblood of the problem that internal grievances are not inves= media's 1lccess to death sentenced on several occasions he came to her tigated by central office stafT and that prisoners, the result was shock when office and made comments like," You a "good 01' boy ... code of silence" several major news agencies chal know how much I like pretty women," prevents complaints from reaching lenged the proposed changes and the and "You have such beautiful skin." the oUlside the prison. FDOC withdrew the proposal. It wi II Despite her telling him these com Jackson's lawsuit was given be interesting to see what response ments were unwelcome and inappro· shon shift by the Florida Supreme Moore receives this time if the cur· priate he continued making them. Court, which sent it to a lower coun rent policies'are proposed for change. When Fasanella refused to give in to to review, a lower coun that Jackson • Youngblood's attenlion she claims that had been barred from filing lawsuits he began retaliating against her. in previollsly. Jackson had earned a FDOC CLASSIFICATION Fasanella also claimed in the suit reputation for filing "frivolous law. OFFICER SUES FOR that olher officials at the prison had suits" with the couns. having filed SEXUAL HARASSMENT sexually harassed her, including the 143 according 10 a DOC spokesman, prison investigator David Charlwood. since his incarceration in 1990. Jack· During October last year Dannette Despite repeated complaints no action son was number three on Fla. Attor Fasanella sucd the Florida Depan was taken by higher FooC officials to ney Gcneral Bob Butterworth's list of ment of Corrections in federal coun stop Ihe harassment or retaliation. the 10 most frequcll! filers that he claiming that she was sexually har· Fasanella finally was transferred to used to lobby Congress to pass the assed and then retaliated against after work at the Charlotte CI Work Camp, a 1996 Prison Litigation Reform Act to reponing the harassment to prison separate unit from the main prison. almost totally obstnlcts prisoners' administrators. The lawsuit alleges This case is numbered 98·412·Civ access to the couns. Ihllt these incidents occurred at Char FTM·17D, and is pending in the Fon In an article by Miami Herald 10llc Correclional Institution located Myers Division of the U.S. Middle reporter, Lesley Clark. Oil Sepl. 12, IIcar Punta Gorda, Florida. Thc law District Coun of Florida. _ 1999. detailing Jackson's IllOSI rccent suit is still pending in the Middlc lawsuit, it WllS commented that Jack· District Fedeml Coun of Florida. PREDICTING son's suit, though prophetic, was "a Fasanella stated in the lawsuit that ilEATIl AT FSI' case of crying wolf once too often." while employed at Charlone CI thAt • FDOC employee Roben Hummer In a l\\enty page lawsuit filed by a would come into her office and stand prisoner at Florida State Prison to the CIVIL DETAINMENT on the desk. pretend to be masturbat Florida Supreme Court on June 1. OR PRISON? ing while saying things like, "I'm 1999, only six \\ceks before death row by Drew Hamo" choking the chicken," and make com· prisoner Frank Valdes was beaten to ments likc, "You bull dike bitch." dcath by suspected prison guards, was The Jimmy Rjce Act better When Fnsanella reponed these details of FSP prisoners being known as the sexual predator law acts to her supervisor, Lee Arnold, "routinely-·as recreationnl sport- faces a judicial test in the state of head ofthe Classification Depanmelll systematically assaulted, battered, Florida. Under this law those con at Charlotte CI, Arnold did nothing to jumped on and beaten unprovoked." victed of sexual offenses and who are stop thc harassment. In fact, The lawsuit fired b)' Douglas Jack designated a threat to society may be Fasanella claims in the suit that Ar· son. a prisoner sentenced to life in detained in II prison-like environment F.P.L.P. VOLUME 5, ISSUE 6 Page 10 following their release from prison. and they should be freed. He argued Ryce cases in Tampa, said .the Legis The state's answer to the question of that Florida is the only state with a law lature clearly meant for treatment to what to do with dangerous sex of like Jimmy Ryce that didn't call for a occur outside a prison setting. A,h'a fenders about to be released from probable cause hearing. Dillinger rez plans to tour the Manin facility to prison is: keep them locked up indefi blames the Legislature for the immedi determine whether it is as restrictive nitely for treatment. The catchy ate problem because they were the as a prison or if it is more close to a phmse "civil commitment" as used ones who drafted this law. hospital setting. by the state is anything but civil. This is only the beginning of the Another significant factor about The Jimmy Ryce Act, named for problems for the Jimmy Ryce Act. In the law is that only one-third or the a 9-year-old Dade CounlY boy who late September, Palm Beach County men committed to the center have was kidnapped, raped, murdered and Judge Virginia Gay Broome upheld the agreed to receive treatmenl. Many of dismembered in 1995, was crafted to law as constitutional but noted the fa the men have refused 011 the advice of protect society from dangerous sex cility designed to hold the detainees is their lawyers. who think that partici ual predators known for repeating overcrowded and lacking in privacy. pating could be perceived as admit· their crimes. Under the current law, adequate treatment plans and activities. ting to being a dangerolls sex of those designated to be a danger to so The first facility was a converted fender. More than 20 or thc detainecs ciety are delaincd following their rc county jail located next to Martin Cor who have declined treatment have lease from prison and face a civil trial rectional Institution in Indiantown, been scnt 10 South Bay Correctional to determine if they should be locked Florida. The Martin Treatment Center Facility in Palm Beach County. up indefinitely for treatment. Since is home to more than 100 convicted While South Bay is privately oper the law went into effect in January, it sex offenders brought there following ated. it is still a prison. So those men has prompted a nood of constitu the completion of their prison sen· who have completed their prisons tional challenges. Most recently the tences. Instead of being free, these men terms are still in prison albeit in a law was held constilutional by a Palm now sleep on gray metal bunks and eat house of a different name. Assistant Beach County coun.. However, the prison food. They remain at the Martin Public Defender ellie King said that 4th District Coun. of Appeal has ad Center pending civil trials to determine this aClion is potenlially a life sen vised prosecutors that it would be a whether they should be locked up in tence for a lot of these men. The bot violation ofdue process to deny those definitely for treatment under the new tom line is the Legislature has set up individuals a probable cause hearing law. a system to warehouse people they prior to detaining them pending a Defense lawyers allege Ihat the don't want on the streets. civil trial. This latest judicial decision prison-like conditions add fuel to their Ahhough Ihe Vni/cd States Su has prosecutors statewide scrambling argument that the law, which is not preme Court has upheld as constitu to comply with this order. Prosecu suppose to be punishment, actually tional a similar law enacted in Kan tors must demonstrate to a judge that heaps more punishment on men who sas, Public Defender Dillinger be those designated a danger to society have already served their sentences. liC\'es that the COlin. opinion left open should be kept locked up. The men are under constant camera the argument about whelher Ihe law Pinellas Public Defender Bob surveillance from a central control was improperly used as punishmenl, Dillinger C'lnimed that this was a dra room staffed by Department of Correc an argumell( which may take years to matic victory for those who his office tiolls' prison guards. Toilet stalls arc in resolve. • had sought hearings for and filed an the open with no doors for privacy. If ISource' 51 I'I'I/?rsbllrg TIrII<'s. 1012.3991_ appeal with the 4th Districi Coun. to the men need medical treatment they win them. Now prosecutors are work are taken to Martin Correctional Insti ing to meet the appeals coun. dead tution for treatment by prison doctors. line: five days. The precedent-setting The Jimmy Ryce Act is supposed appeals court order on the Pinches to be a civil, not criminal, action that cases could have statewide ramifica holds the men for treatment, not pun· tions. Dillinger said that cases for the ishment. However, defense lawyers say proseculors may look good on paper the current living conditions is not civil but may 110t appear so strong in an and they want to show that the law is adversarial hearing where both sides punitive in order to prove that it is dOll can call witnesses. blejeopardy. Dillinger believes that not all the Hillsborough Chief Judge F. Den men targeted are prone to re·offend nis Alvarez, who presided over several F.P.L.P. VOLUME 5, ISSUE 6 Page 11 SENATOR TON/JENNINGS October 1, 1999 P,,,.,d(!lnt Teresa A. Bums. Chairperson Florida Prisoners' Legal Aid Organization. Inc. 15232 East Colonial Drive Orlando. FL 32828 Dear Ms. Burns: Your recent correspondence outlining your concerns regarding Lhe Florida Deparcment of Corrections is greally appreciated. You raise some interesting points in your leller. I have taken the liberty of sending a copy 10 the Senate Criminal Justice Committee which has oversight of the reguhl.lion of the Department of Corrections (DOC). As you may be aware, ule Committee has requested. and will continue to receive, information from DOC concerning the recent events a Florida State Prison. I have asked the committee staff to keep your comments in mind as they review this infonnation. Again, thank you for taking the time to wrile and share your thoughts. You and the members of FPLAO are to be commended for your efforts on behalf of Plorida's prisoners. • To i Jennings rb 1032 Wilfred Drive Orlando, Fl 32803 F.P.L.P. VOLUME 5, ISSUE 6 Page12 . Erroneous Felony was error for the trial court to reclas Reclassification Results sify the third degree felony of aggra in Illegal Sentences vated assault with a firearm while wearing a mask to a second-degree Pursuant to Florida Rule of felony because "the use of the fire Resentencing From Criminal Procedure 3.800(a}, arm was an essential element of the True Split Sentence aggravated assault." Thus Lenoris Drumwright, who is cur assaul~ Goes Awry! rently incarcerated at the Mayo "Drumwright's aggravated conviction, ,a third degree felony Correctional Institution, moved the Michael James Baker was origi ~ould not incur more than ten year~ Circuit Court, in and for Orange nally sentenced by the Eleventh Judi Incarceration with a minimum man County, Florida, to correct his ha cial Circuit Court, ir. and for Dade datory term of five years as an habit bitual violent felony offender sen- Co~nty, Florida, to a twenty year "true ual violent offender." tences. ' spht sentence." See Pool'e v. S',,'e, 531 Next, 'the DCA found that it was In 1993, Drumwright was con So.2d 161 (Fla.1988). The sentencing error for the trial court to reclassify victed and sentenced on the follow scheme employed in Baker's case con the second-d~gree felony offense of ing offenses: sisted ofa twenty-year prison term sus aggravated battery with a firearm I) Aggravated assault with a pended after the completion of ten while wearing a mask to a felony of fi~earm while wearing a mask (a years incarceration with the remaining the first degree because use of the third degree felony reclassified to a balance ofthe sentence to be served on firearm was also an essential element second-degree felony based on the probation. Baker satisfied the service of the aggravated battery. "Th[is] of use ofa firearm); of the ten year incarceration portion of fense should ha.ve been classified as a 2) Aggravated battery with a his split sentence and was release to s~cond deg~ee felony thereby incur firearm while wearing a 'mask (a begin service on the ten year period of rmg an habItual violent offender sen second degree felony reclassified to probation. Subsequently, Baker vio tence of a term of incarceration not a first degree felony based on the lated the conditions of his probation exceeding 30 years with a minimum use ofa firearm); and, and was resentenced to a prison term mandatory term of 10 years." 3) Aggravated assault on 'a law that exceeded the remaining balance of Finally, the DCA found that the .enforcement officer with a firearm the w.it~held. or suspended portion of trial court also erred when it reclassi while wearing a mask (a second th~ orlgmal true split sentence. fied the second-degree felony of ag degree felony reclassified to a first . Pursuant to Rule 3.800(a). Fla.R. gravated assault with a firearm while degree felony based on the use of a Crlm.P., and under the authority of wearing a mask to a felony of the firearm). Poore, Baker moved the circuit court first degree because use of the fire In his Rule 3.800(a) motion to correct his sentence. Baker's motion arm is also an essential element of Drumwright alleged that he was i1~ was denied and he appealed. that offense. "Again the imposition of legally sentenced to concurrent 15 Finding Baker's entitlement to re the IS year minimum mandatory term year habitual violent felony of lief apparent on the face of the record exceeded the 10 year maximum." fender sentences with a minimum the Third DCA, reversed the circui; Because the sentencing errors ~andatory of 15 ye~rs. Not surpris cou~'s or~er ~enyjng were apparent on the face of the re the Rule 3.800(a}, mgly, the Honorable R. James motion. Slglllficantly. citing Bryant cord, the DCA remanded for resen v. Stoker, Circuit Court Judge, denied State, 591 So.2d 1102 (Fla. 5th DCA' the motion, which forced Drum tencing consistent with its findings. See: ' 1992); and, Ashe v, State, 548 So.2d wright to take an appeal to obtain 291 (Fla. 4th DCA 1989), the DCA Drumwright v. State, 24 FLW his warranted relief. On appeal, the ~ound D21 0 I (Fla. 5th DCA, 9-10-99). that? in revoking Baker's proba Fifth DCA found numerous sen tIon, the clr~uit court illegally imposed te~cing errors committed by the a sentence In excess of the remaining tnal court. ' bala~ce of the withheld or suspended First, the DCA found that it portion ofthe original sentence. ....E 5, ISSUE 6 . Page 13 Although the DCA correctly carcerntion that exceeds the re years with four years to be served found lhal "Baker was entitled to be maining balance of the withheld or in prison and the remnining two sentenced to the balance of the with· suspended portion of the origirml yea~ on probation. After Ashe vio~ held ponion of the sentence." which sentence." 531 So.2d 161, at 160$ lated his p ...obation, the DCA found appears to be ten }ears. the DCA (Flu.1988) (emphasis added). that "the trial cou ...t erred in sen nonetheless fCversed and remanded Lonnie Poore was originally tencing him' 10 a prison sentence "with instructions to resentence Bakcr sentenced to four~and~Olle-haJr greater than Ihe suspended portion to twenty years imprisonment with years incarceration. However, the of his original split sentence, that is, credit for time served." sentencing court ordered Poore to greater thnn hvo years." Id., at 292 Sec: Baker I'. State. 24 FLW 01691 spend two-and-one-half)'ears inC.:J.r~ (emphasis added). (Fla. 3d DCA. 7·21·99). ceraled with the remainder of the In my opinion, Ihe other case 'IComment: Although it 11\11)' sentence sllspended. Poore was to cited by the Bilker Court, Bryalll.,. :lppear that Baker pre\'niled, Ill)' be on probation during the two Slale, 591 So.2d 1102 (Fla. Sth DCA review of other case law decisions )'ear suspended portion of the sen 1992), should nOI have e\'en been pertaining to this mailer has I.ert me tence. When Poore's probation was cited. Unlike Baker, Robert Bf)' with a reason:lble doubt. That is, I re\'oked, utilizing the sentencing ant's enti...e sentence was sus· have reason to believe that Baker guidelines, the trial court resen~ pended. Sec SlfIle 1'. Powell, 703 did not actually get the relief th:lt tellced him to four-and~one-half 50.2d 444 (Fla.1997) (trial courl he is entitled. ee Cook \'. Stille, 582 yellrs incnrceration wilh credit for rna)' impose true splil sentence in So.2d 90$ (Fla. 1st DCA 1991) timc sen'ed. On appeal to the Fifth which entire period of incarcern~ (sentence imposed after probation DCA, the DCA held that Poore lion is suspent)ed); see also, revocation on originul true fifteen could only be incarcerated for the Sconiers v. 51f1te, 651 So.2d 758 year split sentence, suspended after remainder of the original split sen (Flu. 1st DCA 1995) (sentence im~ three years incllrcer:ltion, could not tence, which 'las two years. The posed upon revocation could not exceed twelve )'ear balt,"ce of with· Florida Supreme CO!Jrt granted re exceed initial ten year sentence, all held or suspended portion of origi \'iew because of expressed :lIId di of which was suspended). n:l! sentence); Solomflll v. Slate, 698 reel connicts between the district My frustration wilh the B"ker 5•.2d 909 (Fla. 2d DCA 1997) courls of appeal. On review, noting case came from the DCA's instruc (ulJon revocation of probation from that Poore was originally tion for tbe sentencing cou ...1 to im original ten )'ear tme split sentence "sentenced to a true split senlence pose a sentence of hventy years wilh fi\'e of the len years SIlS tot:lling four-and-one-half with credit for time sen'ed. (n Illy pended, maximum senlence th:lt yellrs, with two ye:lrs of the total opinion, this conflicts with, among court could impose upon revocation senlenee suspended," 531 50.2d, at other things, the mandate entered \\as five )'curs); Chapmall I'. 51011:, 165, the Floridll Supreme Court in Poore. I firmly believe Baker 538 50.2d 965 (Fl•. 4th DCA 1989) agreed with the DCA's determina should not be sentenced 10 a prison ("upon II violation of the probation tion that Poore's four-alld~one~half term Ihat exceeds the ten-yeilr re imposed in a 'true' split sentence, yenr VOP sentence had to be va maining balance that WIIS inititllly the length of sentence ma)' 1101 ex cated. The supreme COUl'l held Ihal, withheld or suspended. Addition ceed the length of the term of the "(ulpon remand, the trial court ally, on the maximum ten yea ... sllspended period, the limits of sh:lIl not be permitted 10 order VOP sentence thllt could be im which were established in the initial IPoore's} incarCeT:llion for any pe posed, I believe thut Baker should sentence."); Towuer 1'. SUI/e, 594 riod exceeding either the guidelines be awarded c...edit for all time 50.2d 351 (Fla. 5th DCA 1992) ("Ihl recommendation or the remllinder served and unforfeited gain time aving received a true split sentence, of the original splil sentence, which earned from the inca ...cerntion po...• Ihe maximum sentence a\'ailable e\'er is less." !fl. (emphnsis added). tion of is original split sentence. upon \'iolalion of probation was the Another case supporting Illy po This, in my opinion, would be COIl balance of the prohlltiolHlry pc~ silion that Baker did not get all the sistent with the spirit of the sen~ riod."). relief he is entitled is Ashe v. SUlle, tencing guidelines. In Poore ". 5wte, the Florid:l 548 50.2d 291 (FlA. 4th DCA 1989), Unfo...tunatel)·, there is a case Supreme Court staled "if III true which is :1c(uall)' cited by the DCA thai really muddies my opinion: sillit sentenceI is used I1S the origi~ in its decision entered in Baker's Frazier v. Stale, 559 So.2d 1121 nal sentence, the selltencing judge case. Christopher Ashe was origi (Fla.1990). In 1980, ,Johnnie Fmzier in no instance may order new in- nally sentenced to a term of six was originally sentenced to ten F.P.L.P. VOLUME 5, ISSUE 6 Page 14 years in prison, to be suspended af Finally, Henry F. Johnson was altertwtb'e, lite emire sentellce clm ter the completion of the first five sentenced on December 12, 1988, to be imposed willt filII credit [or Ihe ye:lrs incarceration wilh the five six concurrent six-year prison lellgth ofthe illitial sell/ence. Fmzier }'ear balance to be served on probn terms, suspended after scrvice of v. S1tIte, 559 SO.2t1 II21 (Fla.), cerro tion. Frazier was later convicted of threc years incarceration. However, deified, 498 U.S. 834, I II S.C!. 101, DUI mnnsl:lughter, which was com rather than placing .JohnSOIl on pro 1/2 L.EtI.2fl73 (/990). mitted on November 6, 1986. Pur bation for the remaining thrce Jo/tII!W" 1'. State. 641 So.2d 970, SUllnt to a guidelines runge of sev yean, the trial court illegally placed aI971-72 n.2 (Fin. 2d oCr\ 199",). enteen to twenty-ovo }'ears' incar him on communit)' conlrol for one Over the I:lst several yenrs. I cenuion, Frazier was sentenced on year, followed by a five year period hnve seen numerous prisoners con the DUI manslaughter offense to of probation. After Johnson violated vince the circuit courts thnt nn~' the statutory' maximum of fifteen his probation, the trial court im· sentence thai exceeds the remaining years in prison. The trial court also posed six concurrent si:t:-year prison balance of the suspended portion of revoked the fi"e year probationary terms. The court awarded 350 du)'s what was initially a true split sen· period in Frazier's 1980 ten yenr tlS jail credit, hut no credit fOI' the tence is iIIeglil. III each of those in true split sentence and imposed a time Johnson prc,'iously spent in stllJlCeS, the circuit COIII·tS :llso new ten year prison lerm with :111 prison. The Second DCA found lh:lt awarded credit for lime served :md award for the full five yellrs as the maximum prison term that unforfeiled gain time pursuant to credit for time sen'ed. The problem could be imposed upon Johnson's the decision entered in Sit/Ie v. is, the Florida Supreme Court revocation of probation was Ihe Greet/, 547 So.2d 925 (Fla.1989). I found' thnt U(hlis resentencing on three years initiall}' suspended. In· believe lhe majority, if not all, of the 1980 conviction (was) consistent tercslingly, natwithslanding the fact lhosc successes callie from 1I0t only with Poore because Ihe court did that Frazier's offenscs were commit arguing what Ihe Supreme Court not 'order new incarceration that ted in 1980 and 1986, Ihe DCA snid in Poorc, but .'1150 what the Su exceeded the remaining bl1lancc of noted: preme Court did (it agreed with the the withheld or suspended porlion For ca.fes prior to tlte effective DCA that Poore could not be sell of the originlll sentence." Id.• at date of section 948.06(6), Floridtl tenced to a term exceeding the two 1122; quoti"I: Poore. Statlltes (/989), tltere appear to be years initinlJ)' suspended). Iti· Through cxtensive rcsearch, I two correct metltoll\' of imposi"G the IIHllely. for ench of the prisoners have found that Baker is just one of remt,;nillg sentence after a vio/atioll who rellllv prevailed, I believe that man}' whom Florid:. courts have ofprobatiotl Otl It Irlle split selltellce. eITective writing contributed hea'· allowed to be sentenced to prison First the remllillilll: sentellce clm he i1y toward their succcss.-bmj terms exceeding the suspended por imposed witlt II{) creditfor time previ tion of a true split sentence. For ex ow;/y sen'ed. imlicllting tltat tlte sell ample, Herman Hobbs was origi tellce is tlte remai"der of II true split 1Il11l}' sentenced to concurrent selltellCI!. See OIllI!IIS v. State, 557 twenty and fifteen year prison So.2t1199 (Fla. 2d DCA 1990). IlItlte terms, suspended after the comple tion of five years incarcer:lIion. Af Criminal Defense Center ter Hobbs violated his probation, 908 Thomas\ iIIe Road rather than sentencing him to con T:allahasst'e:. Florid:a 32303 current fifteen and ten year terms We: pro\ide:: with credit for time served, the trial • Re:prescntation in all Slate and Fcdcml COUrlS court resentenced him to concur • Tril1lle:\cl and Appcllnlc Ie\'cl rent twenl)' and fifteen ye:lr prison • POSI Conviction Relief terms with credit for tillle served. • Clemcncy/Parole Rcvjc\\ On llppeal. the Second DCA, citillg • Frec initial consultalion We lire IIl're 10 dl'ftllli )'1111 III Ihe [rdles/llnd IIlmrl' /lim J/l51/("(' IS dIm!" Frazier, held that "Itlhis is the proper method to impose the re· Lynn Allin Thompson. Esquirt. mainder of the true split sentence, Robtrt A. Rand. Esquirt so long as the defendant recei\'es Annetlt Colkmirt. Panlegal credit for his prior time in prison." Hobbs v. State, 702 So.2d 560 (Fla. 20 rEARS £XPERJE.N(ElFORMER PROSECUTOR 2d DCA 1997). call850-984-HElP NOW! F.P.L.P. VOLUME 5,ISSUE 6 Page 15 TRIAL COURT MUST pretation of 28 U.S,C. section 1915 II th Circuit Court ofAppeals. PROVIDE A LITIGANT (g), which provides that a prisoner On the first issue, the Court re NOTICE AND A REASON who has had three or more previous jected Medbcrry's ex post facto argu· ABLE OPPORTUNITY TO lawsuits dismissed as frivolous, mali ment. The Court noted that it had pre RESPOND BEFORE cious or for failure to state a claim viously addressed this issue and thai upon which relief may be granted. In the language of 28 U.S.C. section PROHIBITING FURTHER order to proceed with a new action in 1915 (g) makes it clear that the three PRO SE AITACKS fonna pauperis the litigam must al strikes rule applies to claims dis lege that he/she is in imminent dan missed prior 10 (hat section being The Florida Supreme Court on ger ofserious physical danger. adopted as part of the Prison Litiga· certified conniet review has held that Florida prisoner Daniel Medberry tion Reform Act (PLRA) of 1996. court's must first provide a pro se filed a 42 U.S.C. section 1983 civil On the second issue, the Court re liligant notice and reasonable oppor· rights action claiming that when he jected Medberry's claim that be is in [unity 10 respond before prohibiling arrived at Everglades Correctional imminent danger of serious physical further pro se attacks on his or her Institution in 1996, he informed injury because he is not presently in sentence as a sanction for prior re· prison officials that because of his open population where he claimed pealed ond frivolous motions. sexual battery offense he was in fear the threat existed at the time he filed The Court recognized the impor for his safety should he be placed in the complaint. The Court sided with tant constitutional right of access to open population. Prison officials ig~ two other circuits on this issue which the court but detennincd that a bal· nored his plea and placed Medherry had held that Ihe "imminent danger" ance was needed to curb the abuse of in open population. Medberry must exist at the time the suit is filed a select few. The Court achieved claimed in his petition that his fear or the application is made to proceed what it delennined 10 be the best bal· became reality and that he was both in fonna pauperis in the case. anee by directing the lower courts to verbally and physically assaulted by The Court also noted that Med firsl provide litigants nOlice and an other prisoners. Medberry infonned berry could not amend his complaint opportunity to respond through the prison officials of the assaults one of to correct the "imminent danger" de issuance of an order 10 show cause. which included a "blade". Medberry ficiency as he has since been tmns· The Court staled Ihal Ihis method was placed in administrative confine ferred from Everglades C.I. Based on would generate a more complete re ment. Medberry exhausted available these facts the 11th Circuit Court AF cord for appellate courts'. If the liti administrative remedies prior to fil FIRMED the district court's denial of gant is denied further pro se access to ing his 1983 suit in federal court al Medberry's in forma pauperis the courts, the appellate courts will leging an 8th amendment violation (indigency) status pursuant 10 28 U.S. have an enhanced ability 10 determine for the prison officials deliberate in C.1915(g). whether the denial of access is an ap difference to his safety. See: Medherry v. BUller, et nl .• propriate sanction under the circum Medberry filed to proceed in F_Jd-> 12 Fla.L. Weekly Federal stances, In reaching this opinion the forma pauperis, which the district (C)1226 (11th Cir.8/23/99). Supreme Court approved Spencer \'. court denied because Medberry had State, 717 So.2d 9S (Fla, Ist DCA three previous suits dismissed as FOURTH DCA HOLDS THAT 1998); and disapproved Huffman \I frivolous or malicious and because he SECTION 947.1745 FLA.STAT. SIO/e, 693 So.2d 570 (Fla.2d DCA failed to allege that he was in immi IS CONSTITUTIONAL BUT 1996). State \t, Spencer, 24 Fla, L. nent danger of serious physical in Weekly (S)433 (Fla, S.Ct. September POSES A QUESTION OF jury. WHE IS A JUDGE A 23, 1999). Medberry appealed to the 11th Circuit and raised two issues: (I) JUDGE? ELEVENTH CIRCUIT whether the "three strikes" in forma Prisoner Jerry Gaines peti NARROWLY DEFINES pauperis provision of 28 U.S.C. sec· tioned the Fourth District Court of IMMINENT DANGER OF tion 1915 (g) violates ex post facto Appeal for a writ ofcertiorari seeking prohibitions; and (2) what showing SERIOUS PHYSICAL I JURY review of the trial court's order dis must be made to allow a prisoner PROVISION OF PLRA missing his petition for writ of man with three strikes to proceed in forma damus. pauperis because he is in imminent On an issue of first impression, the Gaines filed a petition for writ 11th Circuit Court of Appeals has danger of serious physical injury - a adopted the strictest possible inter- question of first impression for {he (COf1flnutd 0f1 pogt 2n) F.P.L.P. VOLUME 5, ISSUE 6 Page 16 Dcar Edllor. 'Ille prison system in Florida is at the leaSI corrupt and a money laundering opcration. The focus by the big Iligs oflhe D.O.C. is so much on "process"' lhlllihey disregard Ihe ··outcomc". Whm is lhe oUlcomc you ask? Well. 10 subjecl inmates 10 scvcre punishment. bad e,(lll1lples, un, reachable lalls. and conslan, bribery. exlortion and even sla\'er)·... Theil the oulcome is Ihat Ihe "SYSTE:-'oj" is churning out monslers bacl mlo soclel~ Ibesc people don', elcn knoll h011 10 ~pell rehabilitation. let alonc being Ihal And Ihen as the cahin n.'aclion proceeds. thesc hme filled rebellious IX'Ople lentlhcir frustration on non·aulhoritatilc people; the Ilorkcrs and builders of SOCiClY. So that means more \ ictims of crime. innocenl people hun. some killed. and Ihese snme people end up back insidc the "SYSTEt-,,!·. And nlong Ihe I\'a),lhc~ hale influenced othcrs Such as their suns. daughters or jusl neighburhood kids II'hu look up 10 them. So no\\'. 1\ hat docs lhe polilici:lns do II hen sociely cries OUI about crime? They give lhem a big la.~ bill and build more prisons. It's bc)ond me or an) nonnllilhinking.. cllring human heing lh:llihe nnS\lers to crimc is to create sliffer sentences nnd build morc prisons: all this do<:s is males the mass ofpeopk pa) more ta:\es.. and gi\cs other potential crime offenders more opportuniw:s 10 step up and take o\er II here Ihc ones Ilho :m: lod.ed up len on' Siudy shulls el'idence lhat;1 higher inellrcer Dear FPLP. GI'I.'\.'llng:>. 1do hope Ihis letter lind~ ~ou in Ihe best ofheililh. nOlI lirst and foremost I must exprcss 10 ~ou hO\l IlonderfulI lhml your publication is. I ~rlI presenlly incarceraled iri Ihe Fluridn prison syslem. and a fricnd lei me read n few of his FI'I.P·s. lul)'/Augusl"99" issue. regarding Tercsa Burns article and 1 muSI sa) rou did:l \Ionderfuljob. Wc are nOlI cntering lhe 21st cenlur)' and I lim grmcfullhlll FPI.P and Ihe stllffarc slanding in lhe gap. I for one do not hilI c an~ outside help. I hal'e been \lanting 10 subscribe 10 FPI.P for )cats I now linally ha\'e the funds 10 subscribe I dun't hlllc much bUI mornl support so thanks for standing strong so in closing thank rou in adl'anee for all you are doing keep up lhc struggle Al Bel Dear FI'U'. I Ilritc 10 oITer my highl:sl praise for ~our publiclltion. Yours is hands down lhc Iinest sllLte prison publicmion I hale eler seen. I mail my eupy each monlh to prison aelilists in othl:r states or 10 the fell other l1edgling rag-tag nellslcners Ilith a nOle to the effect: "check oUlthis FI'LP and sec Ilhal is possible. lbL'y'rc doing Ihis in Fl. Why not in )our Slate? You can do it-iflhese people cun, then )"ou can. 100.- I honestly wish there was an '"FPll''' in all 50 stllles. By Ihe I\'n) y'nl1 keep gelling better too. Keep up Ihe - work! In the Slrugglc. Dan Pens. News Edilor.l'LN Dear Fricnds, lust a nOle to give you an updale on E\crgludcs CI in Miami. I don't knOll II h:ll ~ou knOll aboul Eel and Ilhllt you don't knOll. so in thaI light I will jusllouch on thc important issues \\hich seem 10 things addressed in my FPI.P ncws paper. First in response to lhe new visiting law, lhere is no whcre for our families 10 gel away from foul wcnlher out front on visiling days here. Nothing fer the chil dren and we cnt out of lhe vending mnchines herc. The canteen which is in lhe VP is for lhe slaff only. Also, we arc paying /lib.lcr prices /A1I/~/urs"alO"tdCtlnnot Ix prlnttd /weollSi.' ofspoIX rumC:IIO/lS UflSlg,"d Itlt~rs ",II '101 II;,> prlnt~d Or Itl/US Ihol obl'/ousfytl" not tnurllkdfor ublle:tlllQn Pltau ",dlrot.. In your f~lIers If 'Ou do nof ".ant 1/ rmted. Qlhtn.·,u FPLP "un"ts I~" ht to rlnl oilkllers rer~/I"f!dand fO edlt Itflers or F.P.L.P. VOLUME 5, ISSUE 6 Page 17 in our Cllll1een on the compound then the staff pay in theirs, Example, energizer batteries AA, advenised out in the VP for staff 50 cents a piece, we pay 94 cents II piece for ours. Same vendor, same battery! We are only allowed to get visits here every other week, 2 times a month and month's with a fifth weekend, menn no visit's. We have to alternate holidays, example· last year A-L gets Christmas visits lind M-Z do not! So the special visiting days lire granted IIccording to whose leiter it falls on. They claim this is due to space yet there arc now) full dorms closed down here out of8, for CM and confinement They could tun the visits considering max capacily for the vr llnd then allow pcople in as people leave once the max capacity is reached but the)' won 'I, Grievances arc systematically denied or go unans\~ered here. Then ifyoll take lhe nexI step which )"ou Clm ifstaffdoesn'C answer, yOIl get a DR for lying to staffand lhey will say ),ou never filed an informal and lhllt }Iou arc lying and trying 10 abuse the grievance procedurc. A bcller system is needed for filing, log ging in informal grievances. As it is, Ihey do nOllog in informal grievances and the chances of your grievance never coming back arc greal, cspeciall) if )·ou hll\e a" real issue", Well,that's il for no\\. Thank you so much for all )'OU do and I surely appredllte all )'ou have done in helping with the new visiting la\\ I'\C been ill for 19 )tlIrs and its only lhrough visits thai I still have strong family ties. I write, call etc.. but the contactlhat comes from a visits arc a part ofsome ofm) most meaningful memories that arc alii have to sustain me from day to day as I slowly have lost so many family mem~rs throughout the ycars duc to dcath. Its just my Dad and me now, but God bless him he still comes every other \\ed. and Jam just as much suppon for him, as he is for me. WN ECI Dear FPLP, I'm currentl)' fighting my Ct-.I placement. Although the rules are e1eat, I'm getting next to no relief. I was put on CM) al Mayo CIon )-20-98. In May '98', I received 2 DR's, I saw lhe Board in Sept. '98", and was put ofT until MIlICh '99'. In Dec. '98', I was wrinen II lhird DR for having 5 stamps in my pocket while on "runaround" stalUS. When I saw the Board again in l\'larch '99'. it WIlS delemlinecllhlll lowed 65 days of DC time (plus, they could tack 0/1 30 more dllyS 10 make me complete 13 "full" months on CM stalus), and lhat I would be continued on eM 3 until June '99', Two weeks aftcr that hearing, I was lransferred to Okeechobee lind my CM) placement was follo\\cd. BUl, in ~lay'99' ,I was ine: Dear Friends, YOur legal infomllltion is the life blood to thc judicial s)"slem. Our access to Ihe couns through lhe law libraries arc a big joke. The onl)' lhing is, we're nOllaughing. Keep up the good work. Those of us on CM 2 rcally appreciatc your hard work. The stnfflll FPLP arc in our thoughls and prayers. RTBCI Dear FPLP, I'm on CM at Washington CI and it is pure hell. We are treated very badly in every aspect. Every time we leave our cells for rec~:ltion, showers, anything, Ihe)" lear our room apart 1\ledical is almost non-existent, We never sec a doctor. I cut myself and nC\er C\en sa\\ all)' kind ofdoctor period. We really need help here. This is an 50S to anyone Ihat can give assistance. There are people here \\ho have ~en on Ct-.I I for 2-) years without DR's They juslify it by so called "wrile ups" on a contact card. The captains threaten to gas people al e\ef)' lum. This place is tonure. The) put me on C1\1 I for n urine lest and said because I "''as on C\I ~fore ilS okay. On canlttn \Ie can'l order a comb or Q·tips. From stan to finish this place is a \\aste camp. 1I's hard to even care here because lhey subjecl you 10 so much persecution, This has to stop. Thcsc officers arc crazy and really believe that lheir job is to punish us. We need help Bad!! AF wei Dear Friends: Ilmve told people and I will continue 10 say it, "Ifa pCrsOIl does not have a lovcd one, family mcmbcr or fricnd in lhc prison system, THEY HA VE ABSOLUTELY NO IDEA-NONE AT ALL. Thcy arc truly 'clueless'. Your publication helps to open our eyes. "Thank you" is nOI enough. AP F.P.L.P. VOLUME 5, ISSUE 6 Page 18 ~POST CONVICTION ATTORNEYS~ J ~OREN D. RHOTON , I M1CRAEL V. GIORDANO I Attorney At Law Attorney At Law (813) 226-3138 (813) 695-2612 _(813) 228-0070 • • $ APPEALS (;) STATE POST CONVICTION (f) SENTENCE CORRECTIONS I $ FEDERAL PETITIONS FOR WRIT OF HABEAS CORPUS (~ NEW TRIALS 412 East Madison Street Suite 1111 Tampa Florida 33602 - (813) 228-0070 • (813) 221-2182 fax he biring ofII lawyer is aD important decision Ihne should not be bu.'Ced soleI)' on IIdvcrtisemenls. Before ),ou decide, ask us 10 send you free written in(ormnlion about our qUlIlificatiODS. F.P.L.P. VOLUME 5, ISSUE 6 Page 19 F_ StfJSCRJITfJON FORJI X PNon P.O. 801 66G-387 LBlt ChWuata. FL 32766 H so. please COOIplclC lhe below infonnitOJ and send i1 to fPLP 10 Perspeetives lhal !he mlilinillist can be updated and 10 you doo't miu III iasue. om A'IliDiR·....'1: P1eue check type subscripl:ial. desired: N~, 000 b,,, lndiviWaJ lnsti:u.timI8U1~ ReoC'lial -... $12/yr S30IJr (OJeck Type) C;,y s"" Zip N~, DC' .0><"""" City SIBte Zip (Plew Prinr Clearly) Unused U.S. postale atamps are accq:J(cd for 5ubscripioru in the amount indicated. Mate check! or mcney o:ders payable to Florida Prison Leul Daled:,·,==",;;;-;,"n-= Ptl'$pectivea. Pub\iVJ.ed hi·monthly. .\;O\ 99 Mail To: FPLP, P.O. &1 660-387, ChuluOIa, FL 32766 of mandamus against the Florida Pa any circuit judge within the circuit nios. still serves as a judge. Gaines role Commission concerning his eligi to act in the place of the sentencing contcnded that the Commission bility for parole release. Gaines was judge. should have solicited comments from sentenced in 1977 to life in prison. Un Pursuant to the 1986 statutc, his sentencing judge. Ironically. der the statutory parole system in cffect the Commission notified Chief Gaines' daughter contacted Judge at the lime of sentencing a trial judge Judge Leonard Ri"kind of Gaines' Morphonios about the prospective pa could rClain jurisdiction over a defen parole release because the sentcnc· rolc and Judge Morphonios responded dant so lhal the judge's approval in ingjudge had retired in 1991. Chief by stating "it is my position to remain connection with the parole commis Judge Rivkind obviously designated silent on this issue.. ,'. The trial coun sion's approval was necessary for the himself to act in thc place of dismissed the petition without obtain prisoner's release. Cf. 947.16 (3), Fla. Gaines' sentencing judge and ob ing a response from the Commission. SI31.(Supp.1978). It is significant to jected to the release. Based on the Citing a rim Districl Coun case. note that Gaines' judge did not rctain comments of the judge. the Com Gallis \I. Florida I>arole Commission. jurisdiction ovcr him. mission extended Gaines' PPRD to 535 So.2d 640 (Fla. 1st DCA 1988). Aftcr many years in prison, September 7.1997. lhe trilll COllrt determined that the Slilt Gaincs bccamc cligible for parolc con On May 12, 1997.' Judge ute did 110t constillltc all ex: post facto sideration. Several presumptive parole Alex: Ferrer was designated to act ill law. The order funhcr noted Ihm releasc dates (PPRD) were set for place of Gaines' sentencing judge Judgc Morphonios was retired and Gaines. The Parole Commission set a and he too objected to Gaines' re that the Commission actcd ill lIccor· presumptive parole date of September lease. Based on Judge Ferrer's ob dance with the statute by sending no 7,1992. jection, the Commission extended tice to the chiefjudge. On October 1. 1986. the Florida Gaines' PPRD to September 2002. Gaines sought certiorari revic\\ Legislature amended section 947.1745 Gaines sought and was denied ad in the Fourth District Court of Ap (4), Fla. Stat., to require the Commis· ministrative review ofthc Commis peal. The Fourth Districl Court rca· sion to notify and seek comments from sion's decision. thc sentencing court when an inmate In July 1998, Gaines filed a Joseph R. Truitt was within 90 days of his or her effec pctition for \Hit ofmandamus alleg tive parole release date (EPRD) inter ing that section 947.1745 was un Paralegal Services view. The statute was further amended constitutionally applied to him. His P. O. Box 834 and codified as section 947.1745(6). argument \\as predicated on an ex: Stuart, FL 34995 An added caveat required notice to the post facto application. He also ar chiefjudge in the evcnt the sentencing gued that the Commission failed to (561) 219-7367 judge was no longer serving. The chief comply with the statute bccause his Specializing in Post judge was then permitted to designate sentencing judge. Judge Morpho- Conviction Assistance F.P.L.P. VOLUME 5, ISSUE 6 Page 20 , soned that although 947.1745 are penal into the hands of a judge who has (Comment: Normally, pro se pris in nature and that it was applied retro no knowledge of the original case. oner pelitioners do not serve the active\y to Gaines it did not disadvan The su~slitute judge will not be respondent with 3 copy of the pe tage Gaines. The Court reasoned that able to recall the facts of the ease. tition. Usually. once the perifion is although the sentencing judge or a des Those facts mAy have left some filed with the court the court will ignated substitute judge can negatively doubt as to the defendant's guilt review the petition and if it stales • influence Gaines' chance for parole, which could be n factor in consid n prima facie case (cause of action the Commission retains the ultimate ering parole.-ohl on its face), then the court will discretion 10 grant parole despite a issue a show cause order that ei judge's objection. The Court found the RULE 1.070(j), F.R.CIV.P., Iher incorporates the faclS slated statute to be procedural instead of pu DOES NOT APPLY TO in Ihe petition or accompanies a nitive. Thus, the ex post facto claim PETITIONS FILED copy of the petition directed to failed. the respondent. The court usually PURSUANT TO RULE 9.100 The Court did find some merit to serves the respondent with a copy (c)(4), F.R. APP.P. Gaines' contention that his sentencing of the petition with the show judge continues to "serve" as a judge, Prisoner James Frnnkenberry cause order, not the petitioner. A despite her official retirement. The filed a Petition for Writ of Manda court may direct a petitioner to Court noted that several recenl cases mus pursuant to Rule 9.100(cX4), serve a copy of the petition on the show that Judge Morphonios is ac F.R.App.P., in the 17th Jud. Circuit respondent, but only after a show tively serving as a judge. The Coun cause order has been issued. For Court challenging a DOC discipli stated that if the sentencing judge is further understanding of Ibis nary proceeding. The circuit coun still available for comment because she subject, see: PIa. Jur. 2d, Manda sent a notice to someone other than is still "serving", albeit as a senior mus, sections 162-17I-sj) Frankenberry, but intended for judge, then it is appropriate to obtain Frankenberry, instrucling the filing her input, as opposed to that ofa judge of a statement ofgood cause" why a FIRST DCA REVISES who did not participate in the original copy of the petition had not bee!) OPINION REMOVING case. served on the respondent. Since RECOGNITION OF "MAIU While the Court did not decide Frankenberry never received the FILED WITH AGENCY whether Judge Morphonios was notice he did not respond 10 il. Af CLERK'" PROVISION OF "serving" or not, the Court did quash ter 120 days had expired the circuit RULE 33-29.009(8)(a), F.A.C. the order dismissing the complaint and coun dismissed the action pursuant remanded for the trial coun to issue an to a rule governing the service of In the last issue of FPLP, in the order requiring the Commission to re initial pleadings in regular civil ac Notable Cases section, the case of spond to the petition on the claim that lions, i.e. 1.070m, F.R.Civ.P. Ortiz v. JHoore, 24 FLW 01497 it failed to secure comment from the Frankenberry appealed and the (Fla. 1st DCA 6/22199), was noted. sentencing judge. Gaines v. Florida appeal court found that he "was de· The DCA has now revised lhal Parole Commission, 24 Fla. L. Weekly prived of his due process rights 10 opinion following a morion for re (D) 2210 (Fla.4lh DCA September 22, notice and opportunity to be heard hearing/clarification filed by the 1999). prior to dismissal of his petition be· FDOC, to completely remove the (Comment: It is axiomatic that re cause the circuit coun mailed the tired judges often go in and out of notice to the wrong person." AITENTION FLORIDA INMATES retirement as needed by either the Additionally, the appeal coun ONLY 52.50!! circuit they operate from or the dis clarified that the 120·day service Gel Your Inlernel Rap Sheet Now!! trict One day a judge may be retired, requirement of Rule 1.0700) does ALONG WITH YOUR FRAMABLE one day he may not. There does not not apply to mandamus petitions COl.OR D.O.C. PHOTOGRAPH appear to be a semi-retired status as The photo is great for loved ones or filed pursuant to 9. IOO(c)(4). friends!! compared to a actual retired slatus. The appeal coun QUASHED To eliminate Ihis type of scenario Order two copies and gel the 3rd the circuit court's dismissal and re FREE! from occurring again perhaps more turned the case to the lower court Ihought should be given to the term Send 52.50 M/O·CHK+SASE or for further proceedings. See: relired and il5 meaning with respect 10/.32 Siamps 10: Frat/kenberry \I. Moore, _So.2d Photograph, 761 NW Kingston 51., to the above statute. It is disadvanta _ 24 FLIV 01970 (Fla. 4th DCA PSl, Fl34983 geous for a prisoner to place his fate 8125199). F.P.L.P. VOLUME 5, ISSUE 6 Page 21 recognition of Rule )3-29.009 (8) (a) 2048 (Fla. lSI DCA 9/1/99). Therefore, the appeal court AF which provides that responses to griev [Comment: In practicc, only FIRMED the district COlirt'S dismissal ances or administrative appeals to the denials of petitions to initiate rule of the complaint without prejudice for DOC centrol ortice arc "deemed filed making filed by prisoners to the failure to exhaust administrative with the agency clerk" as reflected by a DOC pursuant to section 120.54 remedies. stamp on the grievance stating (7), Fla. Stat., are directly appeal Sec Harper 1'. Dr. .Ienkin, el al., "mailed/filed with agency clerk" along able to the DCA per the provisions 179 F.3d 1311 (11th Cir. 1999). with the date. ofsection 120.68,Fla. Stat. -sj] This revised opinion completely THE STATUS OF PAROLE IS eviscerates the first decision and Icaves PRISONERS MUST FULLY A CONSTITUTIONAL the DOC with wide latitude to argue EXHAUST ADMINISTRA QUAGMIRE "when" a final response has actually TIVE REMEDIES UNDER been given to a grievance for purposes PLRA Recently, I learned that Virginia At4 of computing when the time began to torney Thomas E. Smolka of Rich run to file judicial challenges to denials Georgia prisoner Charles mond, Virginia has filed a petition for of administrative grievances or ap Harper filed a section 1983 civil writ of habeas corpus he has filed 011 peals. rights complaint alleging cruel and behalf of a Virginia inrn F.P.L.P. VOLUME 5, ISSUE 6 Page 22 Smolka claims that when the Virginia State Prison in Starke was arrested /ersbllrg Times, Bush pledged that im Genera' Assembly amended Section September 23rd as he anempted to provemellls are coming 10 the I .7 bil 53.1·134 to provide that one member leave the prison with 5300 in lion dollar a year prison system. of the Parole Board shall be a repre· marked bills that had been gi\'en to Bush provided no details as to sentative of a crime victim's organi· him by a prisoner to allegedly pur what would be done to improve the zation or a victim of crime, the Gen· chase marijuana. system. Bush requested Corrections eral Assembly effectively altered the Prison officials said Manning's ar Secretary Michael Moore to recom· possibility of his client 10 attain pa· rest was not connected with thc in mend a plan ofaction that will ensure a role. Smolka argues that the victim vcstigation into the beating dcath of change in the culture of a depanment advocale most certainly harbors a prisoner Frank Valdez at the sallle that has sllffered from years of neglect slrong bias against persons who have prison on July 17th. and lack of leadership. commined a crime and may wholly Officials Slate Manning had come (Source: Sf Petersburg Times. October ignore recommendations from institu under suspicion back in March 2,1999] • tional staff and independent evalua· when Fla. Depanment of Law En· tors (psychologists, sociologists, etc.) forcemenl and FDOC began inves· PRISON LEGAL NEWS that the inmate be granted parole. tigaling an escape pIal. Prison -Perhaps lhe mosl dmiled journal Smolka argues that an impartial deci· describing the devc10pmenl of ['rison 101\ is guard uniforms, weapons, duci lape I'rison Legal NeIlS,· -- Marti Ihlen. Director sian-maker is crucial 10 fundamental and ether escape items were found Prison LllII Projccl of thc National U\I)Crs fairness, and that the placement of the and three prisoners were identified Guild. victim's advocate on Ihe Parole as plolting to escape. PLN is B 24 page. monthly magazine. Board has yielded signilicant changes One of those prisoners, whose iden· publish~d sinc~ 1990. ediled by Washington stutc prisoners l'nul Wright and Dan Pcns, Each in the parole system. Mr. Smolka hos tity was withheld by prison offi· issue is packed Ilith summnries and nnlllysis 0 alleged that parole has evolved from cinls, participated in setting up a recent court rulings dealing with prison rights, a consistem 'incentive for individual sting operation by giving Manning wrinen from a prisoner perspecli\c. Also rehabilitation to a mere illusion of marked money to purchase mari· included in each iSSue 3fC ne\\'s articles deoling \\ ith prison-related snuggle and aeli\ ism from compliance to statutory authority by juana and return it to the unidenti the U.S. and around lhe Ilorld the Parole Board. As a result, Smolka lied prisoner. I\nnual Suhscriplion rates 3fe 515 for argues that the punishment for his Manning was charged with possess· prisonen;. If )ou ean'l alford 10 send 515 01 client has been rendered more oner ing contraband in a correctional fa once. scnd llt least 57.50 llnd .... e .... ill pro-mte ous that the punishment contemplated cility and violating prison rules that )our subscription llt 51 2S per issue. Please send no tess than 57.50 per donation. Ne\\ (Unused) at the time of the offense, which has prohibit officers from accepting U.S. postage stamps may be used as pa)menL resulted in impermissible ex post anything from prisoners. For non·incarcerated indil'iduals.. Ihe facto legislation. Manning was immediately lircd subscriplion ratt is 52SJ)r. Institutional by Ihe FDOe when arrcsted. Prison subscriptions (for llllOme)s. libraries. Additionally, Mr. Smolka has alleged oflicials once ngain claim this was government agencies. non-governmentnl organizations. etc,) arc S60/yr Snmplc copies a number of other grounds for relief, an isolated incident lind llot part of arc available for 51 Contact: including a claim that his client has a widespread problem. been denied due process - in that, the (Source: Or/aI/do Selllinel. Prison Legal News Parole Board's actions have been ar· 9/25/99]. PMB 14& 2400N.W.801hSL bitrary. abusive and contrary to slatu· Se:11I11: WA 98117 tory authority. GOVERNOR BUSJ-I AD~IITS TO NEGLECT IN I'RlSO 'S FPLP will be following the progress ATTENTION ofthis action. LAW CLERKS Governor Jeb Bush has openly Ifyou have suffered relalialion at the hands admitted Ihat the sHlle's prison sys of FDOC officials as a result of the per FSP PRISON GUARD tcm suffers from years of neglect formance of your law clerk duties or in ARRESTED IN DRUG and that the Dcpartment of Corrcc response to your personal grievances or STING OPERATION tions "erred" in failing to provide litigation actiVities. send the details to: adequale medical hClllth care to a teven R. Manning, 52, a prison SI. Petersburg woman who died in a Jurislic Legal Aid Org. guard with the Florida Department prison last year. POSt Office Box 24923 Oakhmd Park. FL 33307 of Corrections (FOGC) for 10 In a wrillen response to a series of anicles published in the Sf. Pc- years. and who worked at Florida Include copies ofany grievances. F.P.L.P. VOLUME 5, ISSUE 5 Page 23 Florida Depanment of Corrections Florida Correction, Commission Office ofthe Governor Florida Resource OrganiLations 260 I Blair Stone Rd. 2601 Illmr lone Rd PL 05 The Capilol TalJahasec Fl 32399·2500 Tallahas ee FL 32399-2500 Tallahassee FL 32399-000I (850)-113-9330 Florida Institutional Legal ef"\ ices (850) -188-2272 (850) 488-5021 FiLq850)-li -9141 IIIO-C W 8th A\c Web ite: www.dc.stale.O.us EMail: fcorcom"i11111Iil.dc.SltlIC.n.U5 Chief Inspector General 922-1637 Gainesville FL 32601 ~Int; Web Slie w,",,,,, do-. 11 uslrgllvngencll:s/fcc Cltucn's Assistnnce Admin .&88·71.&6 (352)955·2260 moe FAMILY O~lBUD MA CommissiOn/Government Acc()umablilly FiL" (352)955-2189 10 Ihe People.. 922-6907 EMail: [email protected] 1'lC Florida arrections COlllmission i "he FJXX.' has nlll:8-cdl)' crealcd a nc\\ poSlllon in the Office or EXCCUlhc Clemelle) Web itc: w\\ \\ .afn.orgifilsJ composed of eight CltllCnS appointed by the centrol onice 10 addre~\ comphunts and pro\'lde asSIS 2601 Blair StOlle Rd governor to oversee the rJorida J)cpanmenl lance 10 pu\{mer's ftumhes and friends $)1\'13 \VII I3Idg. C. Room 229 Families wilh Loved ham~ ''0 Ihc FIX>C cmplo)cc nppolOltd llS the of Corrections. advise the governor and Tallahassee FL 32399·2450 ones In Prison legislature on corrccllomll i- ucs. and (850)-188·2952 "hmll} Omhudsman . According to Is Williams. 710 Flanders A \C. promote public education about the Kecl~ fhe Ombud m:lJ\ \\01..... 3S %1 medUllar bet"«rl (anll Coordinator Janet Daylona Bch FL 32114 h~. IOmal and the department to rench the most correctional S)stem In Florida. The (904)254-8453 clll:cll\C re.-",:llutlon·· The F(X)C Fanlli)' Services ommission holds regulnf meetings around Florida ParoleIProbation Commission E~lail: Oip'aafn.org 1ll)Ihnc is loll·free I-8QO-S58..fH88 the sUUe \\hich the public rna) Bncnd to 2601 Blair Stone Rd .. Bldg C Web Site: \\\\\\.afn.org/ nip provide input on issues and problems Tallahassee FL 32399-2450 moc SPA I III1ELPLINE 3fTccting the correctional :-oystcm in Florida (850) 488·1655 Restomthc Justice Ministr)' Nel\\ork Prisoners families and friends are encouraged Enrorc~ncnt 1'.0. Box 819 The FD F.P.L.p. VOLUME 5, ISSUE 6 Page 24