        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
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

                                      2
      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 punishment-
      retribution 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

                                      3
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

                                       4
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.

                                       5
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

                                      6
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

                               7
      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)

                                     8
(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.

2The 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

                                       9
   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).

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