DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

FRANKLIN JONES,

Appellee.

No. 4D16-3390

[November 8, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Matthew I. Destry, Judge; L.T. Case No. 16-9577 CF10A.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale 

Surber, Senior Assistant Attorney General, West Palm Beach, for 

appellant.

Carey Haughwout, Public Defender, and J. Woodson Isom, Assistant 

Public Defender, West Palm Beach, for appellee.

CIKLIN, J.

After an inmate at a correctional facility was disciplined for violating 

the inmate code of conduct by attacking a corrections officer, the state 

charged him with battery on a law enforcement officer. The inmate moved 

to dismiss the information, arguing that the criminal charge was precluded 

by double jeopardy principles. The trial court granted the motion and the 

state appeals. Because we find that the Double Jeopardy Clause was never 

meant to impinge on remedial institutional discipline, we reverse the trial 

court’s order of dismissal. 

In his motion to dismiss, the appellant, Franklin Jones, argued that the 

prosecution was barred because the Broward Sheriff’s Office imposed what 

amounted to a criminal sanction for his bad behavior. During the hearing, 

he introduced into evidence the Broward Sheriff’s Office Department of 

Detention and Community Control Inmate Handbook (“the handbook”), 

which contains a code of conduct for inmates. The code of conduct

provides that the commission of specified Category A offenses could result 

in “thirty . . . days of disciplinary segregation, up to thirty . . . days of room 
2

restriction, and/or loss of partial or all earned gain time . . . .” Jones also 

introduced a “Disciplinary Committee Action Sheet” (“the disciplinary 

report”), which reflects that Jones was found guilty of assault, fighting, 

and disruptive conduct, all Category A infractions. The disciplinary report 

also reflects that Jones received thirty days of “Disciplinary Detention,” 

but that he did not lose any gain time.

Jones argued that the potential sanctions provided for in the code of 

conduct amounted to criminal penalties. The trial court granted the 

motion to dismiss based on a finding that the potential of revocation of 

gain time had no purpose other than punishment and was thus a criminal 

penalty and a violation of double jeopardy.

The parties do not dispute the facts underlying this purely legal issue. 

Thus, our review is de novo. Binns v. State, 979 So. 2d 439, 441 (Fla. 4th 

DCA 2008). “The federal and Florida constitutions prohibit being twice 

placed in jeopardy for the same offense.” Hall v. State, 823 So. 2d 757, 

761 (Fla. 2002), abrogation on other grounds recognized in State v. Johnson, 

122 So. 3d 856, 862 (Fla. 2013); see also Amend. V, U.S. Const.; Art. I, § 

9, Fla. Const. This constitutional protection encompasses “multiple 

punishments for the same offense.” U.S. v. Mayes, 158 F.3d 1215, 1219 

(11th Cir. 1998) (citation omitted). “The scope of the Double Jeopardy 

Clause is the same in both the federal constitution and the Florida 

Constitution.” Hall, 823 So. 2d at 761.

The United States Supreme Court has elaborated on the process of 

determining whether double jeopardy is implicated by the imposition of 

both judicial and administrative penalties: 

We have long recognized that the Double Jeopardy Clause 

does not prohibit the imposition of all additional sanctions 

that could, ‘“in common parlance,’” be described as 

punishment. United States ex rel. Marcus v. Hess, 317 U.S. 

537, 549, 63 S. Ct. 379, 387, 87 L. Ed. 443 (1943) (quoting 

Moore v. Illinois, 14 How. 13, 19, 14 L. Ed. 306 (1852)). The 

Clause protects only against the imposition of multiple 

criminal punishments for the same offense, Helvering v. 

Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 633, 82 L. Ed. 917 

(1938); see also Hess, supra, at 548-549, 63 S. Ct., at 386-

387 (“Only” “criminal punishment” “subject[s] the defendant 

to ‘jeopardy’ within the constitutional mean-ing”); Breed v. 

Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 

346 (1975) (“In the constitutional sense, jeopardy describes 

the risk that is traditionally associated with a criminal 
3

prosecution”), and then only when such occurs in successive 

proceedings, see Missouri v. Hunter, 459 U.S. 359, 366, 103 

S. Ct. 673, 678, 74 L. Ed. 2d 535 (1983).

Whether a particular punishment is criminal or civil is, at 

least initially, a matter of statutory construction. Helvering, 

supra, at 399, 58 S. Ct., at 633. A court must first ask 

whether the legislature, “in establishing the penalizing 

mechanism, indicated either expressly or impliedly a 

preference for one label or the other.” Ward, 448 U.S., at 248, 

100 S. Ct., at 2641. Even in those cases where the legislature 

“has indicated an intention to establish a civil penalty, we 

have inquired further whether the statutory scheme was so 

punitive either in purpose or effect,” id., at 248-249, 100 S. 

Ct., at 2641, as to “transfor[m] what was clearly intended as 

a civil remedy into a criminal penalty,” Rex Trailer Co. v. United 

States, 350 U.S. 148, 154, 76 S. Ct. 219, 222, 100 L. Ed. 149 

(1956). 

In making this latter determination, the factors listed in 

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S. 

Ct. 554, 567-568, 9 L. Ed. 2d 644 (1963), provide useful 

guideposts, including: (1) “[w]hether the sanction involves an 

affirmative disability or restraint”; (2) “whether it has 

historically been regarded as a punishment”; (3) “whether it 

comes into play only on a finding of scienter”; (4) “whether its 

operation will promote the traditional aims of punishmentretribution and deterrence”; (5) “whether the behavior to 

which it applies is already a crime”; (6) “whether an alternative 

purpose to which it may rationally be connected is assignable 

for it”; and (7) “whether it appears excessive in relation to the 

alternative purpose assigned.” It is important to note, 

however, that “these factors must be considered in relation to 

the statute on its face,” id., at 169, 83 S. Ct., at 568, and “only 

the clearest proof” will suffice to override legislative intent and 

transform what has been denominated a civil remedy into a 

criminal penalty, Ward, supra, at 249, 100 S. Ct., at 2641-

2642 (internal quotation marks omitted). 

Hudson v. United States, 522 U.S. 93, 98-100 (1997) (alterations in 

original).

Prior to the issuance of the Hudson opinion, two of our sister courts 

held that double jeopardy protections did not apply to a judicial proceeding 
4

following an administrative proceeding. See Larkin v. State, 558 So. 2d 

486, 487 (Fla. 5th DCA 1990); Sadler v. State, 333 So. 2d 69, 69 (Fla. 1st 

DCA 1976). Larkin contained no analysis and merely relied on Sadler. 

558 So. 2d at 487. Sadler relied on federal circuit court opinions. 333 So. 

2d at 69. 

Only one of our sister courts has written post-Hudson on the issue 

presented here. See State v. Converse, 78 So. 3d 78, 79-81 (Fla. 5th DCA 

2012). The court did not, however, reach the merits and apply the Hudson

analysis to the facts before it, instead finding that the motion to dismiss 

was insufficient as the defendant did not submit to the court the statute 

or regulation under which she was administratively sanctioned. Id. at 81.

Federal and other state appellate courts have applied the Hudson

analysis and their opinions provide guidance. We turn first to the 

thoroughly-reasoned opinion of the Eleventh Circuit in Mayes, 158 F.3d 

1215. That case involved appellants who had received prison disciplinary 

sanctions (transfers to maximum security prisons; disciplinary 

segregation for sixty days; disallowance of a portion of accrued good 

conduct time; temporary losses of telephone, commissary, and/or 

recreational privileges; and losses of visitation privileges for up to one year) 

for their involvement in a prison riot, and who were ultimately charged 

with offenses for the same underlying conduct. Id. at 1217. The 

appellants moved to “dismiss the indictment on double jeopardy grounds, 

arguing that the prior prison disciplinary sanctions precluded the 

subsequent criminal prosecutions for the same conduct.” Id. Their motion 

was denied. Id. at 1217-18. 

On appeal, the Eleventh Circuit recognized that the pre-Hudson general 

rule among the circuit courts was that “prison disciplinary sanctions do 

not bar subsequent criminal prosecutions on double jeopardy grounds.” 

Id. at 1220. The court acknowledged that a United States Supreme Court 

opinion, United States v. Halper, 490 U.S. 435 (1989), had caused the 

circuit courts to consider “whether prison disciplinary sanctions might 

ever be considered sufficiently excessive to constitute criminal 

punishment for double jeopardy purposes,” but that the courts addressing 

the issue distinguished Halper and declined to recognize an exception to 

the general rule.1 Mayes, 158 F.3d at 1220. The court then explained 

1 Halper involved a statute which allowed a monetary penalty to be imposed for 

the making of false claims for government reimbursement. Halper, 490 U.S. at 

438. The Court held that a civil penalty may constitute punishment for the 

purpose of the Double Jeopardy Clause where it is “overwhelmingly 
5

that in Hudson, the Supreme Court “disavow[ed]” the Halper analysis and 

recognized that such an analysis “elevated a single Kennedy factor –

whether the sanction appeared excessive in relation to its nonpunitive 

purposes – to dispositive status.” Id. at 1221 (quoting Hudson, 522 U.S. 

at 96, 101). The Eleventh Circuit recognized that “[u]nder Hudson, the 

decisions in Ward and Kennedy exemplify the double jeopardy standards.” 

Id. at 1222. The court then looked to decisions of its predecessor circuit 

in the wake of Kennedy:

After receiving the benefit of the Supreme Court’s guidance in 

Kennedy, our predecessor circuit rendered opinions in several 

cases applying double jeopardy principles within the context 

of prison disciplinary sanctions. See United States v. Bryant, 

563 F.2d 1227, 1230 (5th Cir. 1977) (administrative 

revocation of good conduct time after participation in prison 

riot did not bar subsequent criminal prosecution for same 

conduct), cert. denied, 435 U.S. 972, 98 S. Ct. 1616, 56 L. Ed.

2d 65 (1978); United States v. Lepiscopo, 429 F.2d 258, 261 

(5th Cir.) (administrative forfeiture of accumulated good time 

credits and placement in solitary confinement after 

participation in escape attempt did not bar subsequent 

criminal prosecution for same conduct), cert. denied, 400 U.S. 

948, 91 S. Ct. 255, 27 L. Ed. 2d 254 (1970); Gilchrist v. United 

States, 427 F.2d 1132, 1133 (5th Cir. 1970) (affirming denial 

of petition for writ of habeas corpus, holding that Double 

Jeopardy Clause “is not violated because a prisoner is 

subjected to discipline by prison authorities for violating 

prison regulations and is also prosecuted in the district court 

in a criminal action based upon the same acts”); United States 

v. Cordova, 414 F.2d 277, 277 (5th Cir. 1969) (rejecting 

argument that “the combination of administrative 

punishment and criminal conviction” violated the Double 

Jeopardy Clause, and holding that “[a]dministrative discipline 

of a prisoner does not prohibit criminal prosecution for the 

same event”). 

Mayes, 158 F.3d at 1222 (alteration in original) (footnote omitted). 

The Eleventh Circuit then undertook the two-step analysis of Hudson, 

looking first to the face of the statutory regulations under which the 

appellants were disciplined. Id. at 1222-23. As the stated purpose of the 

disproportionate to the damages . . . caused” and “bears no rational relation to 

the goal of compensating the Government for its loss.” Id. at 449.
6

regulations was to effect a “safe and orderly environment” for prisoners, 

the court found that the regulations “explicitly articulate only a 

nonpunitive, remedial purpose,” and that this was “persuasive proof that 

the government intended for the disciplinary regulations to be civil in 

nature, not criminal.” Id. at 1223. The court observed that the regulations

distinguished prosecution from the prison disciplinary process and that 

“this language further confirms that the government intended to create 

civil sanctions through the regulatory scheme at issue.” Id. The court also 

found that the legislature’s delegation of authority to the Bureau of 

Prisons, an administrative agency, was “prima facie evidence that 

Congress intended to provide for a civil sanction.” Id. (quoting Hudson, 

522 U.S. at 103).

The court then moved on to Hudson’s second step, “whether . . . the 

sanctions authorized in these regulations are ‘so punitive in form and 

effect as to render them criminal despite [the government’s] intent to the 

contrary.’” Id. (alteration in original) (quoting United States v. Ursery, 518 

U.S. 267, 290 (1996)). The court first explained that under Hudson, it was 

the potential penalty, not the actual penalty, that was dispositive: “[T]he 

pertinent inquiry is whether the authorized civil sanctions for violations of 

prison rules are so punitive as to be transformed into criminal 

punishment. It is at this analytical stage that the seven Kennedy factors 

come into play.” Id. The court then elaborated on application of these 

factors to prison discipline:

[P]rison discipline cases do not fit neatly into the matrix of 

double jeopardy doctrine. This is because in the prison 

context, virtually any form of sanction seems “criminal” and 

“punitive” as we commonly understand those terms. With 

that in mind, we recognize that many of the Kennedy factors 

may weigh in the appellants’ favor and support their argument 

that the disciplinary regulations constitute criminal 

punishment for double jeopardy purposes. For instance, 

because the appellants are already incarcerated, some of the 

authorized sanctions will inevitably “involve [] an affirmative 

disability or restraint” for purposes of the first factor. 

Kennedy, 372 U.S. at 168, 83 S. Ct. 554. In the same vein, 

some of these sanctions might also be “historically . . . 

regarded as a punishment,” given the context. 372 U.S. at 

168, 83 S. Ct. 554. With respect to the third Kennedy factor 

- whether the sanction “comes into play only on a finding of 

scienter” - the regulatory provisions make clear that an 

inmate’s mental health at the time he is alleged to have 

engaged in misconduct is relevant to determining whether 
7

disciplinary action is appropriate. 372 U.S. at 168, 83 S. Ct. 

554. See 28 C.F.R. § 541.10(b)(6). The fourth consideration 

is whether the sanction “promote[s] the traditional aims of 

punishment.” 372 U.S. at 168, 83 S. Ct. 554. Indeed, the 

imposition of discipline in prison seems aimed, at least in part, 

at deterring inmates from violating institutional rules in the 

future. Fifth, many of the prohibited acts to which these 

sanctions apply are “already . . . crime[s].” 372 U.S. at 168, 

83 S. Ct. 554. The last two Kennedy factors, on the other 

hand, probably weigh against the appellants in that the 

disciplinary sanctions could be regarded as “rationally . . . 

connected” to an alternative, nonpunitive purpose - namely, 

maintaining institutional order - without “appear[ing] 

excessive” in relation to that purpose. 372 U.S. at 168-69, 83 

S. Ct. 554. 

We have some flexibility in determining the extent that we 

choose to utilize the considerations enunciated in Kennedy for 

purposes of our double jeopardy analysis. See Hudson, 522 

U.S. at ----, 118 S. Ct. at 493 (classifying Kennedy factors as 

“useful guideposts”); Ward, 448 U.S. at 249, 100 S. Ct. 2636 

(describing Kennedy factors as “helpful,” but “neither 

exhaustive nor dispositive”). We therefore exercise our 

discretion to attribute less significance to Kennedy’s list of 

considerations in this particular case, primarily because it 

arises within the prison context. In this unique setting, we 

must take into account the fact that a prison’s remedial and 

punitive interests are inextricably related. As the Second 

Circuit observed, “[p]unitive interests and remedial interests . 

. . are nowhere so tightly intertwined as in the prison setting, 

where the government’s remedial interest is to maintain order 

and to prevent violent altercations among a population of 

criminals” and where “remedial concerns require ‘punishing’

individuals for violent or other disruptive conduct[.]” United 

States v. Hernandez-Fundora, 58 F.3d 802, 806, 807 (2d Cir. 

1995).

Moreover, we factor into our analysis the importance of 

granting some deference to the judgments of prison 

authorities in determining “what is necessary and proper to 

preserve institutional order and discipline, and to encourage 

good conduct[.]” United States v. Newby, 11 F.3d 1143, 1146 

(3d Cir. 1993); see also Garrity v. Fiedler, 41 F.3d 1150, 1153 

(7th Cir. 1994) (“Historically, we have deferred to the expertise 
8

of prison authorities regarding questions of prison 

administration and discipline.”). Accordingly, we recognize 

the need to refrain from hindering institutional 

administration. We find the Third Circuit’s reasoning 

persuasive in this regard:

 We do not believe that the Double Jeopardy Clause 

was ever intended to inhibit prison discipline. . . . If a 

prison disciplinary sanction bars subsequent criminal 

prosecution, the prison authorities will be forced to 

choose between instituting a disciplinary proceeding or 

awaiting a criminal prosecution. The process of 

conducting a criminal investigation and prosecution may 

take considerable time. The difficulties and delay that a 

criminal prosecution entails would leave the prisoners 

who violated the prison rules without a prompt 

resolution of charges and hinder prison administration 

and discipline. 

Newby, 11 F.3d at 1146.

Prison officials have no authority to alter the inmates’ 

original criminal sentences. They merely implement 

disciplinary proceedings that may, at most, change the 

conditions of the inmates’ confinement for purposes of 

maintaining institutional order and encouraging compliance 

with prison rules. 

Under these circumstances, we cannot conclude that the 

regulations authorizing the prison disciplinary sanctions 

imposed against these appellants are so punitive as to 

override the government’s intent to create remedial 

administrative penalties for inmate misconduct. Accordingly, 

we decline to classify the regulations as “criminal,” and the 

appellants’ double jeopardy challenge fails.

Mayes, 158 F.3d at 1223-25 (all but first alteration in original).

Other federal circuit courts have agreed with the reasoning of Mayes. 

See United States v. Simpson, 546 F.3d 394, 398 (6th Cir. 2008) (agreeing 

with other circuit courts that the “Double Jeopardy Clause was not 

intended to inhibit prison discipline, and disciplinary changes in prison 

conditions do not preclude subsequent criminal punishment for the same 

misconduct”); Porter v. Coughlin, 421 F.3d 141, 142, 148-49 (2d Cir. 2005) 
9

(holding that a New York regulation that permitted a lengthy period of 

disciplinary confinement as a penalty for the appellant’s involvement in 

rioting and violent conduct while a prison inmate amounted to a civil, not 

criminal, penalty and thus did not violate the Double Jeopardy Clause). 

Additionally, the Tenth Circuit has taken the same position post-Hudson 

but without citing to Mayes. See Fogle v. Pierson, 435 F.3d 1252, 1262 

(10th Cir. 2006) (“Because the Double Jeopardy clause only applies to 

proceedings that are ‘essentially criminal’ in nature, see Breed v. Jones, 

421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975), ‘it is well 

established that prison disciplinary sanctions’ – such as administrative 

segregation – ‘do not implicate’ double jeopardy protections. Wirsching v. 

Colorado, 360 F.3d 1191, 1205 (10th Cir. 2004).”).

State appellate courts and the court of appeals for the District of 

Columbia have also concluded, post-Hudson, that prison sanctions do not 

implicate double jeopardy concerns. See Haney v. United States, 999 A.2d 

48, 50 (D.C. 2010) (finding the reasoning of Porter and Mayes persuasive 

and holding “that the administrative discipline imposed in this case was 

not punitive in effect or purpose”); Rogers v. State, 44 S.W.3d 244, 247 

(Tex. Ct. App. 2001) (finding “that the Hudson test is not appropriate for 

prison disciplinary sanctions [as] [i]t is well-established that sanctions 

assessed by a prison do not preclude the state from prosecuting a prisoner 

for the same conduct”); Commonwealth v. McGee, 744 A.2d 754, 756-59 

(Pa. 2000) (discussing Hudson and holding that “where . . . prison 

disciplinary action is imposed for infractions of prison regulations within 

the confines of the authorized administrative scheme, and such discipline 

falls within the range of predictable punishment under the original 

sentence and can be justified on the basis of safe, orderly or efficient 

institutional administration, it does not implicate [double jeopardy]”). 

In the instant case, the handbook does not contain an express 

indication of whether the sanctions for violations of the code of conduct 

are intended to be civil or criminal in nature. However, the handbook 

contains language indicating that the purpose of the disciplinary penalties 

is to manage the inmates.2 This is evidence that the sanctions are civil in 

nature. Jones does not assert otherwise.

2 The handbook provides the following preamble to the “Rules and Discipline” 

section:

Inmate behavior management begins when you are admitted to the 

facility. You are required to obey the facility rules and regulations 

and the Inmate Code of Conduct posted in this handbook and in 

your housing area. Violating a rule or regulation may result in 
10

The handbook provides for potential disciplinary sanctions, including 

detention and loss of gain time, which are of the ilk involved in Mayes. We 

find the Mayes reasoning persuasive. Although many of the Hudson 

factors may weigh in favor of a finding that the disciplinary system here is 

criminal in nature, Hudson makes it clear that no one Kennedy factor 

takes precedence in the analysis or is dispositive. Additionally, as 

explained in Mayes, these types of penalties are largely intended to keep 

order. To the extent deterrence is a happy side effect of that goal, this does 

not transform the penalties into criminal punishment for purposes of a 

double jeopardy analysis. See Hudson, 522 U.S. at 105 (“[T]he mere 

presence of [the purpose of deterrence], is insufficient to render a sanction 

criminal, as deterrence ‘may serve civil as well as criminal goals.’” (quoting 

Ursery, 518 U.S. at 292)). 

Based on the foregoing analysis, we reverse the order of dismissal and 

remand for further proceedings. 

Reversed and remanded.

GROSS and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

disciplinary action, for which you will receive a written disciplinary 

report . . . . Discipline will not involve sanctions which are 

unconstitutional, unlawful, arbitrary, capricious, or in the nature 

of retaliation or revenge. 

(Emphasis in original).