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Hi
Kay! Good news!! My son's "dr" was overturned by the Secretary of Corrections's office!
My son was accused of assaulting another inmate. He was charged and found guilty before the disciplinary team in March of 2001. This resulted in confinement time along with 6 months loss of gain time.
He told me he did not do this and I believed him. My son was very upset for being accused of this. I told him to appeal or file a grievance, which he did and it was denied at the institutional level.
In the meantime, I was trying to figure out how to get this "dr" overturned, or at least get another hearing. I felt lost, I felt there was nothing I could do, except take it as far as the District Court Of Appeals and just insist that he was not guilty, unless I could find something, anything to work with.
I was also working on a motion for modification for my son, at this time and had already requested his files from prison. I received these files and lo and behold, I realized by sheer accident that I had proof, that my son was not given a fair hearing. The files that were sent to me contained this "dr", along with the "Witness Disposition Form" and the "Disciplinary Investigative Report". On the "Disciplinary Investigative Report", that is where I discovered I had my black & white proof, as most sections were marked N/A. They were indeed applicable!
Following is the grievance that I wrote for my son.
Hope this helps!
My Son's Mother
AMENDMENT
TO PREVIOUSLY FILED GRIEVANCE
Pursuant to F.A.C. 33-103.006(2)(j) and F.A.C 33-103.007(3)(e) I am filing this amendment to my formal grievance, as I received new and pertinent information.
On March 27, 2001, I went to the disciplinary hearing for a charge of assault and the disciplinary team found me guilty. (See attached grievance & response.)
I am NOT guilty.
This assault occurred March 10, 2001 and I was not even formally charged until March 24, 2001, and then found guilty on March 27, 2001. I was not given a fair hearing, and the investigation was not in compliance with DOC rules. Several other inmates have also been charged and found guilty of this same incident. I feel this false charge could be due to the fact that I refused to tell what I heard about this incident. I may be guilty of not telling what I heard, but I am certainly not guilty of this assault. They told me they had eight witnesses stating that they had “observed me kicking and hitting Inmate Peacock, as he was lying on the ground”.
First of all, it is well known that in prisons, it is quite difficult to get just one witness to cooperate, but somehow they came up with “8”and/or “ numerous” witnesses all saying they “observed” me. I find it odd that all these witnesses used the word, “observed” in their statements.
According to F.A.C. 33-601.307(2)(a),(d),(e), and (f), the disciplinary team had the authority to require (a) “that other supporting documents be presented”, (d) “that any witnesses appear”, (e) “that any other individuals appear...”
(f) ”that further investigation be conducted, or evidence presented, or statements presented of unavailable witnesses”.
None of this appeared to be important to this team, even though this obviously was and is indeed a complex situation , when several other inmates were also charged with this same assault, as well as the numerous witnesses that was claimed, as nothing in the aforementioned rules of the DOC was requested, even though they had the authority to do so.
Even though, the proper investigation was not conducted, in F.A.C 33-
601.307(1)(d) “....If in the opinion of the hearing officer or team ,the inmate needs staff assistance, such assistance shall be assigned”.
Since this was indeed a complex situation, assistance should have been assigned.
There were numerous problems with the investigation, as required in F.A.C. 33-601.305.
F.A.C.
33-601.305 states , “The investigating officer is responsible for the following:” which consists of (2) “Interviewing the charged inmate” and (3)”Interviewing additional persons...including those who are listed in the statement of facts.....” as well as (4)”Recording the results......on the Disciplinary Investigative Report , Form DC6-112A....”
The
attached copy shows many “interviews” were not conducted properly, nor recorded as required in F.A.C. 33-601.305(4).
On the disciplinary investigative report form, it states all the following outlined below:
Section I ----Staff Assistance Offered
I declined assistance, however after reviewing F.A.C. 33-601.307(1)(d), as
well as F.A.C.
33-601.302(14)(d) “A staff assistant is assigned to an inmate under the following circumstances.” “When the complexity of the issue makes it unlikely that the inmate will be able to properly represent himself.” This incident was indeed complex, if there were numerous witnesses, along with the fact that several other inmates were charged for this same incident.
Section II------Charged Inmate’s Version
No version was “obtained”, as required in F.A.C.33-601.305(2)(d)
"Obtaining the inmate’s version of the infraction.” A request was given for my written statement, which does not consist of an “interview”, as required in F.A.C.33-601.305,
as “The Investigating officer is responsible for the following:”
F.A.C.33-601.305(2) “Interviewing the charged inmate”
There is no definition of the word “interview” in the Terminology & Definitions of F.A.C.
33-601.302, so one must assume the definition of “interview” would be its clear and ordinary meaning or it could come from a dictionary, which defines “interview”, generally as “ a meeting, generally of persons face to face to talk over something...” I was only requested to write my version. I was “requested” to give a written statement, and not “interviewed”.
When dealing with any penal statutes, the rules are indeed strict.
Florida
Statute. 775.021 Rules of Construction
(1) “when the language is susceptible of differing constructions, it shall be construed most favorable to the accused.”
Section III----Charging Staff Member Interview ---It is hard to determine here on this report if an “interview” was given, as it only states that “Sgt. Loy stated that section one is true and correct as written”
Section IV-----Other Staff/ Pertinent Individual Interviews
This was marked N/A. With the word, “pertinent”, one would assume at least some of these “numerous” witnesses would have been interviewed, if there were indeed numerous witnesses, {along with others charged for this same incident} as claimed in the “Charging Disciplinary Report. See F.A.C.33-601.305(3)
Section V-------Other Inmate Interviews
This states “see attached witness statement”. This was not an interview, according to this report, only a written statement, apparently obtained from the charging officer. The investigator was responsible for the “interview” of Witness A, as noted in F.A.C. 33-601.305(3), as Witness A was “listed in the statement of facts....”.
Section VI-------Explanation of Witness Statements Not Completed and /or Other Interviews Not Completed. Again, this states,
“N/A". With this many witnesses, as claimed by the charging officer, there is no evidence of the proper “interviews” being conducted in accordance with F.A.C. 33-601.305(3)
Section VII--------Explanantion of Delay(s) at any Stage of Investigation. Again, it was noted, “N/A." I was not even charged for this for 2 full weeks, so there should be something, anything, at least listed here. This was certainly not “N/A”.
Section
VIII----Evidence; Other Included Reports; Other Information. And yet again, the “N/A” was stated. There is NO evidence, as I am not guilty!
“Witness Disposition Form”
I signed this form in Section II, and Section III was filled out later, after I had already signed. Please note the obvious difference in the check marks used in Section II and Section III. In section II, an actual check mark was used, where in section III, it was a line.
I found it peculiar that all these witnesses used the word ”observed”. I would have liked to at least seen or even heard some of the varying statements, if any. In addition this form used, was form
DC4-804B
(Rev.8/95),
when according to F.A.C.
33-601.313,
form “DC6-112B,
effective 5-21-00” should
have been used.
Further,
in
F.A.C.
33-601.305 Inmate Discipline Investigation,
it clearly states that the
“investigating
officer shall initiate the investigation within 24 hours of the
writing of the disciplinary report”.
It is stated
in all documents that I found, that this report was written on March
22, 2001, except for 1 document, which is the canary copy of the
“disciplinary
hearing worksheet”
and there it
states this report was written on March 20, 2001, however after careful examination of this canary copy, it also appears this report was possibly written March 12, 2001. Whether this was a typo, or whether the report was actually written on this date, one cannot be certain, and this should raise some concerns. I have this canary copy stored safely, and made a copy of this , and it looks like the report was written on March 20, 2001. The only reason I bring this up is because the “investigating officer shall initiate the investigation within 24 hours of the writing of the disciplinary report”. F.A.C. 33-601.305, along with all of the very obvious “numerous” violations of F.A.C. -Chapter 33.
In light of the foregoing reasons, arguments, and authorities, I respectfully request a rehearing , with the proper investigation, or other appropriate remedies, in order for me to get a fair hearing and receive due process.
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