Well, today threw me for quite a loop.
I was pleasantly surprised to see Assistant State Attorney Frank George not only appear, but precisely state the law when advocating for enforcement of Judge Strickland’s original sentence.
Nevertheless, Judge Perry seemed hesitant, did not immediately rule in favor of Mr. George, and instead indicated he needed to do some additional research.
At that point, I said hey, what do I know, I’m just a dumb blogger, but maybe if I provide my dumb blogger’s “research,” Judge Perry’s eyes might just come across it. (But really, I mean it’s not like Judge Perry’s law clerks or staff lawyers, or any lawyer involved in the case for that matter, would ever read my blog.)
Does Double Probation Means Double Jeopardy?
Defense Attorney Lisabeth Fryer (whom I think is an excellent advocate) asserted that since Ms. Anthony could have been violated while she was in jail (which, as you will see, is true), the court must consider Casey Anthony to have been actually supervised. Otherwise, requiring her to be supervised a second time would constitute double jeopardy.
There are two flaws with this argument (one of which is fatal) and if carried to their logical conclusion, shows that this argument should not prevail.
A Sword and a Shield
First, you can bet your bottom $200,000 dollars that had Ms. Anthony’s probation actually been “violated” while she was in jail, the defense would have argued that she was not on probation in jail, as Judge Strickland’s “oral pronouncement” was clear that her probation was not to start until she “was released” from jail.
Thus, probation had no jurisdiction to violate someone who was not on probation and the court would therefore have no jurisdiction to conduct a Violation of Probation proceeding.
While this is nothing more than an academic exercise, you can bet that the legal positions would have been reversed had such a scenario occurred.
Thus, it seems patently obvious that the defense is only using the “scrivener’s error” as a sword now, but would obviously have used it as a shield had Ms. Anthony been violated while in jail. And as you will read below, the United States Supreme Court has cautioned that the constitutional prohibition against double jeopardy should not be used to turn sentencing into “a game in which the wrong move by the judge means immunity for the prisoner.”
Prospective Violations are Permissible
Unfortunately for the Casey Anthony defense, the Florida Supreme Court has clearly found that a court can prospectively violate someone. A prospective violation means that a defendant who is sentenced to jail to be followed by probation, can be found in violation of probation, while still serving the jail portion of the sentence, before beginning to actually serve the probationary portion of their sentence. Stafford v. State, 455 So. 2d 385 (Fla. 1984).
The Florida Supreme Court adopted the following opinion when holding a trial court has the inherent ability to revoke a person’s probation before it is even started:
The question here is whether a probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence.
We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society.
As a result of the Stafford opinion, Ms. Fryer’s argument (that because Ms. Anthony could have been violated, the court must consider her to have been on probation) is unpersuasive.
This is because the court already had the inherent authority to revoke Ms. Anthony’s probation before it commenced if she committed an act that would have constituted a violation while on probation. (This actually comes up frequently when one inmate commits a battery on another inmate.)
Guidance on Addressing the Legal Morass
While I would agree that I could find no case exactly like Ms. Anthony’s situation, I nonetheless believe there are plenty of cases that provide guidance on how Judge Perry Should rule.
This is because while the Department of Corrections likely never catches when they release someone from probation early, there are legions of cases where someone has been released from prison early – only to be returned once the mistake is identified.
For Example…
In Carson v. State, 489 So. 2d 1236 (Fla. 2d 1986) the defendant was sentenced to thirty months imprisonment with credit for time served” on January 14, 1985. (Notably the court left it up to corrections to determine the amount of time served.) Corrections gave the defendant credit for 546 days of credit when he should have received 173 days.
On May 16, 1985, more than 60 days after the sentence was imposed, the state filed a motion to correct appellant’s sentence to reflect the correct amount of credit for time served. The court granted the state’s motion and issued an amended sentence, nunc pro tunc, January 14, 1985.
The defendant appealed arguing his sentence was being illegally increased after he had already been discharged and that the court lacked jurisdiction to modify a sentence after sixty days.
The appellate trial court rejected the defendant’s argument and stated the trial court was neither correcting an illegal sentence nor reducing a legal sentence, but was attempting to execute the original sentence it had ordered. The court went on to state, “a court may correct clerical mistakes in its own judgments and records, nunc pro tunc, even after the term of court has expired, and such corrections generally relate back and take effect as of the date of judgment.”
Finally, the court in Carson ruled that if a defendant is released or discharged from prison (or in Ms. Anthony’s case, probation) by mistake, the defendant may be recommitted if the sentence would not have expired had she remained in confinement.
In Ms. Anthony’s case, her probation sentence would not expire until July 17, 2012; so there is plenty of time to fix the clerical error so she serves the intended sentence.
A Legal Smörgåsbord for Judge Perry
Finally, there is Gallinat v. State, 941 So. 2d 1237 (Fla. 5th DCA 2006) that was issued by the Fifth District Court of Appeals (the same appellate court Ms. Anthony would have to appeal too).
The defendant in Galliant was sentenced concurrently in two cases to 33 1/2 months in prison. The sentencing documents sent to the Department of Corrections reflected credit for 285 days served in county jail prior to sentencing in each case.
The truth though, was that the defendant had only done 264 days in one case and 96 days in the other. Three months later, the trial court entered a “corrected order,” which reduced the jail credit award in each case to 264 and 96 days respectively, which reflected the time actually served by the defendant. (This also meant that he would sit in prison for about four months more.)
Well, wouldn’t you know it, the defendant appealed and argued virtually identical grounds as Ms. Anthony’s attorneys argued. The Fifth District Court of Appeal rejected the defendant’s arguments on multiple grounds, which I will briefly summarize below:
- The Court saw no difference between a correction made by one of the Department’s commitment auditors and a judge’s correction in the reporting of time that an inmate has served toward a sentence when the error is brought to the court’s attention by the state or the court’s clerk. Neither correction implicates a defendant’s constitutional right to be free of double jeopardy.
- Correcting the time served to properly reflect that historical fact will not result in imprisonment for more than the maximum, and does not “increase the sentence.” Rather, the correction simply ensures that the defendant will serve the sentence judicially imposed.
- The United States Supreme Court has cautioned that the constitutional prohibition against double jeopardy should not be used to turn sentencing into “a game in which the wrong move by the judge means immunity for the prisoner.” That is exactly what would happen here if we were to hold that a judge could never correct a time-served calculation in the “typical” case.
- In addressing double jeopardy claims in the sentencing context, the United States Supreme Court has focused on the “legitimate expectations” of the defendant. Meaning, the defendant’s only legitimate expectation should be to serve the full sentence imposed, and not catch a break because of a clerical error.
- It is appropriate to consider legitimate expectations of the victim of a particular crime involved in a case, and of society in general. Both should be able to legitimately expect that the crime will be punished, which includes a right to expect that a lawfully-imposed sentence will be fully served.
The bottom lime, a clerical error can be corrected at any time BEFORE the sentence would expire so that a defendant fulfills the sentence actually imposed.
My Prediction: A “Splitting of the Baby“
My final prediction is that Judge Perry will essentially split the baby when resolving this issue.
On one hand, I am pretty sure he is probably not to pleased with the way Foghorn Leghorn accused Judge Strickland of engaging in fraud by entering an order Nunc Pro Tunc (which is a latin turn, meaning “now for then”). So when Judge Strickland issued the clarification order Nunc Pro Tunc, he was not saying that the events reflected in the minutes occurred on August 1, 2011; he was legally saying, although I am signing this document on August 1, 2011, they signature is to be retroactively applicable to when I originally signed the document January 25, 2010.
Also, with the State taking the position that Ms. Anthony should be on probation, he risks being reversed should the State appeal. This puts more pressure on him to rule correctly, as opposed to what would be easier – which is to get Ms. Anthony out of his hair for good.
On the other hand, by being the Chief Judge of the Ninth Judicial Circuit, he is also the defacto Chief Criminal Justice Administrator for the Ninth Judicial Circuit. Meaning he knows the State, law enforcement, and probation have better things to be doing than dealing with Ms. Anthony’s safety and her hoard of enemies she now has (never mind the hysteria should a violation ever be alleged).
And You Thought Judge Strickland Was Solomon Like
As a result I believe he will pull a Judge Strickland and be King Solomon like and “split the baby” by entering an order stating she is to be on probation, but that it will be Administrative Probation (which essentially means, don’t ever get arrested and you make it.)
P.S.
Between me and you, if he puts her on Administrative Probation, it would be an illegal sentence.
This is because Administrative Probation is part of a split-sentencing scheme that has to be authorized at the time it is originally imposed (meaning Judge Strickland would have had to impose it) and it requires the first half of her probation to be “supervised” before she can be placed on the “administrative” portion.
The court may also impose split probation whereby, upon satisfactory completion of half the term of probation, the Department of Corrections may place the offender on administrative probation for the remainder of the term of supervision. Florida Statute 948.012(3)
But at this point, any type of accountability would be palatable. Ms. Anthony and her shady band of lawyers beat the murder rap, there is no reason they should also beat a simple probation rap.