### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

STATE OF FLORIDA
, Appellant,

v.

FRANKLIN JONES
, Appellee

.

No. 4D 16

- 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

Pu blic Defender, West Palm Beach, for appellee.

C IKLIN
, 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 offi cer. 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 in stitutional discipline, we reverse the trial

court’s order of dismissal.

In his motion to dismiss, t he 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 Ha ndbook (“the handbook”),

which contains a c od e of conduct for inmates. The code of c onduct provides that the commission of specified Category A offense s could result in “thirty . . . days of disciplinary segregation, up to thir ty . . . days of room2 restriction, and/or loss of partial or all earned gain time . . . .” Jones also

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

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

and disr uptive conduct, all Category A infractions . The disciplinary r eport
also reflects that Jones received thirty days of “Disciplinary D etention,”

but that he did not lose any gain time.

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

c onduct amounted to criminal penalties. The trial cour t 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 o ffense.” 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 “mul tiple 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

.

T he 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 prohi bit the imposition of all add itional 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

- 5 49, 63 S. Ct.

, at 386

- 3 87 (“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 criminal3 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

, supr a , 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 prefer ence 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 eithe r 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 mak ing 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 punishment

retribution and deterrence”; (5) “wheth er the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rational ly be connected is assignable

for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is impor tant 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 , 52 2 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 proceeding4 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 S tate 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 th e court the statute or regulation under which she was administratively sanctioned. Id . at 81.

F ederal 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

condu ct 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 conduc t. 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 12 17

- 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 ackn owledged 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 gener al 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 “overwhelmingly5 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 t o its nonpunitive

purposes

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

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

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

Id . at 1222. The c ourt 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 a ttempt 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 corpu s, 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 ” ); Unite d 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

disprop ortionate 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 reg ulati ons “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 deleg ation 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 transform ed 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 ap pellants’ 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 “invo lve [] 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 whether7 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 insti tutional rules in the future. Fifth, many of the prohibited acts to which these sanctions apply are “already . . . cri me[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,

ma intaining 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

considera tions 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

pun itive 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 “remed ial 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 judg ments 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 expertise8 of prison authorities regarding questions of prison administration and discipline.”). Accordingly, we recognize the need to refrain from hindering institutional

administration. We f ind 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 considerab le 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 offic ials 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 c ompliance 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

admin istrative penalties for inmate misconduct. Accordingly, we decline to classify the r egulations as “criminal,” and the appellants’ double jeopardy challenge fails.

Mayes , 158 F.3d at 1223

- 25 ( all but first alterat ion 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 d isciplinary 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 disciplin ary 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 th e 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 c lause only applies to

proc eedings 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 tha t prison disciplinary sanctions ’

– such a s administrative segregation

– ‘ do not implicate’ double jeopardy pr otections. Wirsching v.

Colorado , 360 F.3d 1191, 1205 (10 th 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) (fi nding 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 disciplin ary 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 or iginal 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 h andbook does not contain an express

indication of whether the sanctions f or violations of the code of conduct

are intended to be civil or crimin al in nature. However, the h andbook contains language indic a ting that the purpose of the disciplinary penalties is to manage t he inmates. 2 This is evidence that the sanctions are civil in

nature. Jones does not assert otherwise.

2 The h andbook 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 regulat ions and the Inmate Code of Conduct posted in this handbook and in your housing area. Violating a rule or regulation may result in10 The h andbook 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 t he 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 type s 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]h e 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 dismi ssal and remand for further proceedings.

Reversed and remanded.

G ROSS and K LINGENSMITH

, 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)

.