The Great Probation Debate

The Check Fraud Case

On Monday, January 25, 2010 Casey Anthony pleaded guilty Monday to 13 counts of check fraud. At the time of her plea, she was also being held in jail without bond on charges of murder, manslaughter, and lying to police.

Judge Strickland or Judge Solomon

In what can only be described as recognition of the chess game the State was playing with Ms. Anthony’s life by demanding the check fraud case go to trial first, Judge Strickland did not formally convict her on all 13 check fraud counts and instead threw her a lifeline by withholding the adjudication of guilt on 7 of the counts. (As I had predicted he would prior to the sentencing.)

By withholding guilt on 7 of the counts, Casey Anthony was only considered a six-time convicted felony; as opposed to a 13 time convicted felon. At the time, the felony convictions were extremely valuable to the State Attorney for impeachment purposes should Casey Anthony testify or her self-serving statements somehow be admitted (which Jose Baez almost opened the door too).

The “Catch”

But by withholding adjudication there was a legal catch. Under Florida Statute 948.01, a judge cannot withhold adjudication of guilt on a felony UNLESS they also place the person on probation.

And that is exactly what Judge Strickland did, even though everyone knew she was being held in jail on No Bond for the murder case, Judge Strickland ORALLY pronounced that she was sentenced to the 412 days she already spent in jail on the check fraud charges, but for each count he Withheld Adjudication of Guilt on, he also placed her on One Year of Supervised Probation to be served “once released.”

An Indefinite Sentence?

Almost immediately after Judge Strickland explained his sentence, Assistant State Attorney Frank George raised his concerns that such a sentence would be considered an “indefinite” sentence under Florida law (which is illegal) because Ms. Anthony would obviously be held in jail and therefore could not begin her probation for the foreseeable future.

Judge Strickland stuck with his original pronouncement and stated that if the State could think of a better idea, they should file a motion seeking the better idea. They never did.

The Confusion

While Judge Strickland’s intentions were clear, there seems to have been some confusion because the sentencing minutes that were generated after the hearing, and which Judge Strickland signed, simply stated credit for 412 days jail followed by one year of supervised probation. Notably, the sentencing minutes never contained the magical words “upon release” at the end of the sentence – not that they needed to.

And because the sentencing minutes lacked the magical words “upon release,” the Florida Department of Corrections unilaterally decided that her probation began running while she was in jail and her probation ended on January 24, 2011.

Presumably, the reason they interpreted it this way is that she was in jail awaiting trial, as opposed to serving a sentence. (Never mind she was ultimately sentenced to all the time spent awaiting trial and then some.) Thus by giving her credit for the time she spent in jail towards her probation she was allowed to double dip and essentially get a two for one.

And since nobody brought the Department of Corrections oversight to the court, no clarification was ever provided from Judge Strickland’s office.

Which brings us to the heart of the matter, was there a discrepancy between Judge Strickland’s oral sentence and the sentencing minutes in the first place. If so, did it even need to be clarified?

The Legality of Judge Strickland’s Sentence

To begin, the Florida Supreme Court has held time and time again that “a court’s oral pronouncement of sentence controls over the written document.” State v. Jones, 753 So. 2d 1276 (Fla. 2000) This principal was recently reaffirmed by the Florida Supreme Court in State v. Akins, 36 Fla. L. Weekly S215a (Fla. May 26, 2011) (“when there is a discrepancy between the written sentence and ‘the oral pronouncement, the oral pronouncement prevails.’)

As a result, even if there was a discrepancy between Judge Strickland’s oral pronouncement of sentence, where he said the probation was to begin “once released” and the written minutes that omitted these “magical words,” the oral sentence still controls – irrespective of how the defense or the Department of Corrections wants to interpret it.

Did Written Order Actually Conflict with Oral Sentence?

Nonetheless, even if the written sentencing minutes did not contain the magical words “upon release,” Judge Strickland did not legally have to even include them in his oral pronouncement for Casey Anthony’s probation to have begun “once released.”

This is because the general rule is that when a person is sentenced to incarceration followed by probation and the person completes the custodial portion of the sentence, but nonetheless remains incarcerated on another offense, the probationary portion is tolled (meaning does not begin) until the person is released from incarceration in the other case being held on. See Brooks v. State, 762 So. 2d 1011 (Fla. 5th DCA 2000). This means that absent specific language stating that Casey Anthony’s probation was to run while she remained in jail, her probation was tolled by operation of law – Judge Strickland was not required to include any magical language stating “upon release.”

Does the Defense have a Legitimate Double Jeopardy Argument?

Actually, the defense has TWO legitimate Double Jeopardy arguments.

Argument 1: Being Supervised Twice

The first argument is that requiring Casey Anthony to report to probation now amounts to double jeopardy since the Department of Corrections already “supervised” her for one year while she was in jail.

The problem with this argument is that Casey Anthony never actually did anything; a probation officer visited her at least one time and then verified her continued incarceration for the next twelve months (thus accounting for the “contacts” DOC references – read look her up online). My gut feeling is that a Court of appeals would not be to sympathetic to Ms. Anthony, because she was not actually reporting to probation and there was no impediment placed on her liberty.

I think an appellate court would say that one that the Department of Corrections actions did not amount to supervision and two, they could not supervise someone without lawful authority. And as explained earlier, a person cannot serve probation while in jail (unless the jail is made a specific condition of probation).

Argument 2: “Clarification Order” is Void

The second argument is that Judge Strickland’s Clarification Order amounts to double jeopardy because Casey Anthony had already served her sentence and the Judge’s jurisdiction to clarify the sentence had long since expired. Therefore, once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles. Ashley v. State, 850 So. 2d 1265 (Fla. 2003)

Scrivener’s Error

On its face, this argument is correct. As a Judge only has 60 days from the date of a sentence to correct a scrivener’s error, which refers to a mistake in the written sentence that is at variance with the oral pronouncement of sentence or the record but not those errors that are the result of a judicial determination or error. Rule 3.800 Fla.R.Crim.Pro.

In Ms. Anthony’s case, the judge’s 60 days of jurisdiction expired on March 26, 2010. As a result, the “Clarification Order” entered by Judge Strickland is void, illegal, and unenforceable. Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009); rev. denied. State v. Stang, 41 So. 3d 206 (Fla. 2010).

Warren Stang and Casey Anthony Sitting in a Tree, Dou-ble Jeop-ar-dy

Stang is an important case because on its face it is very similar to Ms. Anthony’s case. In Stang’s case, he was sentenced to consecutive sentences on multiple counts in a violation of probation case and given a total of 27 years in prison. Notably, the oral sentencing pronouncement intended for him to get credit for 1,915 days towards the 27 years; meaning he would have about 23 more years to do.

However, his sentencing minutes appeared to give him 1,915 days credit towards each count. The net result was that he only had 2 more months on his sentence, not 23 years. The Department of Corrections noticed this and asked the judge to clarify his sentence. So 67 days after the sentence was imposed, the court entered a “Clarification Order” (sound familiar) saying that the credit was towards the total years, not each count.

The appellate court upheld the two month interpretation, finding that the Court lacked jurisdiction to clarify the order because more than 60 days passed and finding that based on double jeopardy, once credit has been awarded, it cannot be rescinded – even if granted in complete error.

What is notable about this case is that the State Attorney’s Office never challenged the defendant’s post-conviction motions on the merits. Because if they had, the transcripts of the oral pronouncement shows that the credit was only given towards the years, not each count.

And this is notable, because the case went all the way to the Florida Supreme Court; and the Florida Supreme Court denied review of the case specifically because the State Attorney did not provide the transcripts until after the case had been affirmed by the District Court of Appeal (meaning the State simply argued the case based on the sentencing minutes and did not get the hearing transcribed). See State v. Stang, 41 So. 3d 206 (Fla. 2010).

What the clear indication of this procedural defense means is that had the transcript originally been provided to the lower courts; the Florida Supreme Court would likely have agreed that the oral sentence controls and Mr. Stang had 24 more years in prison to complete.

The Current Situation

This brings us to the current situation in Ms. Anthony’s case. It is understood that the defense will first file a Motion to Disqualify or recuse Judge Strickland. I have no doubt that Judge Strickland will grant his request and the case will then be turned over to a new judge.

Can the Successor Judge Vacate Judge Strickland’s Clarification Order

The Defense will have 20 days to file a Motion for Reconsideration asking the successor judge to vacate the Clarification Order entered by Judge Strickland. See Rule 2.330, Fla.R.Jud.Admin.

It is my opinion that the new judge will likely agree to vacate Judge Strickland’s Clarification Order, as it is clearly Void and unenforceable under Stang v. State, 24 So. 3d 566 (Fla. 2d DCA 2009)

Coming Full Circle

However, just because Judge Strickland’s Clarification Order is void and unenforceable; it does not mean his original sentence is unenforceable.

To the contrary, Judge Strickland’s original sentence still controls and the Department of Corrections – as a member of the executive branch – has a duty to enforce it. This is because, by operation of law, Ms. Anthony’s probation was tolled while she was in jail awaiting trial on the murder case.

If the defense wants to then argue that she was supervised in jail and thus double jeopardy prevents her from being supervised again; by all means, they should argue it – I know I would.

But that has been my point from the very beginning, it is not for the State Attorney or the Department of Corrections to decide whether requiring Ms. Anthony to report to probation as Judge Strickland intended amounts to Double Jeopardy – it is up to a court to decide.

Have Some Balls Lawson Lamar; Defend Strickland’s Sentence

I know next year is an election year and you want to distance yourself from Ms. Anthony and the boondogle of a prosecution you put on lest a formidable opponent emerge to run against you.

But seriously, the Very Honorable Lawson Lamar needs to grow a sack and defend Judge Strickland’s sentence and provide this community with some sense that you aren’t afraid of big bad lawyers like Mike Snure, Donald Lykkebak, and “gulp,” Cheney Mason, who make mince-meat our of your high profile cases.

If you thought she was such a danger to society that you were committed enough to have her executed, I think you should be committed enough to at least try and have the Department of Corrections execute a simple probation sentence on her for one year.

If you don’t, the irony is indeed rich that Jose Baez and Cheney Mason ultimately made you their Bitch.

Author: Richard Hornsby

Orlando, Florida Criminal Defense Lawyer and DUI Attorney Richard Hornsby is Board Certified in Criminal Trial Law by the Florida Bar and represents clients throughout Central Florida in all criminal defense and DUI defense cases.

105 thoughts on “The Great Probation Debate”

  1. Richard I have enjoyed reading your blog very much and have a question. I read that administrative probation can only be given to an offender after half of the probation has been served. Is this always the case or are exceptions made ? From what I gather, administrative probation is nothing more than a records check by the state, once a year. Is this true, or does the offender have to do more to be in compliance ? Thanks.

    1. Thank you. As for your questions about Administrative Probation, you are correct. But if I was a betting man, I say he splits the baby and places her on Administrative Probation to save face.

      But between you and me, the Judge knows that would technically be illegal as FS 948.012(3) requires her to do half of her “regular” probation before she can be placed on “Administrative Probation.”

      FS 948.012(3) – “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.”

      Also, here are the statistics for supervision types to show how infrequently Administrative Probation is given (1.1% of all probationers.)

      1. As I expected, Judge Perry seems bent on singling out Ms. Anthony. Besides the defense team and Ms. Anthony, Judge Perry was the biggest winner in this trial. Her acquittal saved him being reversed by a higher court. He loaded the dice so heavily in favor of the state that he should have quietly bowed out of this one and counted his lucky stars. True to form though he seems now to be intent on finding any possible reason to further punish Casey Anthony. If I represented her I would be working overtime drafting a civil suit against the state. Specifically, the decision makers in the SAO and the OCSO should be held accountable for wrongfully charging and incarcerating this woman. I’d sue them all and make sure Judge Stan Strickland received the attention he seems desperately to want.

        1. Ron P,

          So you expected OCSO & SAO to do nothing in this case? Based on what?
          Suppose the victim was one of your friends, neighbor, or family member instead of Caylee. Instead of Casey, the person last (by their own admission) with the “missing” was the significant other, a finacee, or infatuated friend. Let’s say almost all the circumstances where similar to this case. A month plus lying, the wildgoose chase, the decomp car odor, etc.etc. Would you want law enforcement to do nothing? Would you want them to say, “Nothing here no need to investigate, any evidence is probably long gone or degraded so we’ll just investigate tips and sightings that are called in”?
          Then a half year later the skeletal remains of the “missing” are found dumped in the woods near the significant other’s home. Similar circumstances. Bones scattered, some bones and items in plasitc bags, and duct tape attached to the hair with portions near the mouth and nose of the skull. Would you want law enforcement to say ” Oh we’ve seen and heard of this before, it definately is an accident so we don’t even need to worry about recovering all the remains?” Is that how you hope law enforcement would handle a case?
          Casey was originally charged with child endangerment and lying to law enforcement about her “missing” child, she was not charged with homicide until various pieces of evidence came back and consistent with the child being dead. The case was brought before the Grand Jury and the Grand Jury returned the indictment- 7 counts which included capitol murder. Do you want to sue the Grand Jury too?
          The prosecutors initially dropped the 1st degree, then re-instated it after the remains were found. The prosecutors believed the duct tape caused the death, an action that they believed showed forethought, because with each placement of duct tape a person could reverse their action. Their belief, based on what they saw and the medical examiner’s report was not unreasonable based on the totality of the circumstances and evidence. Because they believe premeditation they charged 1st degree homicide, the prosecutors did not charge the death penalty. First degree homicide punishment was already set up by the state of Florida, not the prosecutors. Punishment could be death or life in prison for someone convicted. While I don’t believe in the death penalty and would never vote for it, I do understand why the prosecutors brought the First Degree charge. I also thought it was a waste time because the family of the victim was also the family of the accused and they would not want the death penalty or even life inprisonment.
          The economic crimes that were charged later, & they also had to be investigated. Law enforcement had to obtain the evidence(the cancelled checks, videos), not just the victim’s statement. Most banks require that the victim file a police report. I know Bank of America required my daughter to do it when someone wiped out her checking account. When she supplied them with the police report, they refunded her money. Just because someone makes restitution, doesn’t mean the charges just go away. I suppose you would do nothing if someone had stolen/cashed your checks? Did you want Judge Strickland to give her a pass? Maybe she can sue Amy for being a vengeful friend or the bank for wanting restitution.
          Might as well sue the state of Florida too, for the Sunshine Law. All the documents that were released is because the media used the law to obtain them and report on them. How about suing the media for being overly interested in this case?
          Unless the lying convictions are over turned, the time Casey spent in jail was for the crimes she was convicted of. Do I think she should do probation now that she has a letter saying it was completed..No, but I’m not a lawyer or a judge.

          You seem to want to sue everyone as if they all had a personal vendetta against Casey, went into her home, took Caylee, made her lie,etc. If Caylee had died of drowning as Baez proposed, then that makes Casey the ringleader of this circus. She continued to claim she was protecting her daughter, of what, when the child was already dead? Casey sat in protective custody afraid of who, when the child was already dead? With whom did this case all begin? What do you hold Casey accountable for? It seems to be nothing.

          1. Hi kimpossible!

            Your account of how State vs. Casey Anthony played out tellingly glosses over quite a bit.

            First of all though let me address your hypothetical, “[s]uppose the victim was one of your friends, neighbor (sic), or family member (sic) instead of Caylee.” I should be the last person under those circumstances to direct the actions of law enforcement and the state attorney’s office. I would understandably be unable to divorce myself from emotional reactions. I might make all sorts of false accusations and trample on any number of people’s rights in order to satisfy my emotional and irrational needs. What I would personally want and what citizens of Orange County expect of law enforcement in such a case may be very different indeed.

            Now, as a dispassionate citizen my expectations are more clear. I expect thoroughness and fairness. I expect the sheriff’s office to respond to a 911 call like Cindy Anthony’s and investigate thoroughly and fairly. Remember her call was that “it smells like a dead body has been in the damn car.” During the trial it came out that none of the responding officers noted that smell or investigated the car. They did however question Casey Anthony who began lying to them immediately. The detectives in charge suspected her of some sort of wrong doing after quickly determining that her story of an abduction was built on lies.

            In this situation I expect law enforcement to do what is required of them. They should have immediately investigated the car. Knowing Casey Anthony was lying, they should have arrested her and informed her of her rights to remain silent and have counsel present. Did you notice that Yuri Mellich described the questioning of Ms. Anthony as “interrogation” in the press conference after her acquittal? During the trial, the SAO and OCSO lied when they claimed that she was not in custody and not being interrogated at Universal Studios. This is the first instance of her civil rights being violated. When Judge Perry allowed that interrogation to be presented to the jury, he violated another–her right to a fair trial.

            I expect, as a dispassionate citizen, that evidence collected and presented at trial be authentic and untainted by fraud. The majority of circumstantial “evidence” collected and presented was inauthentic and even fraudulent. Experts who testify that 100% of drownings are reported are not experts. If an unreported drowning did occur then how would the expert know to adjust their calculations? There’s so much more! Forensic evidence was manufactured, mishandled, un-expertly examined and reported on, and intentionally presented to the jury even when the state attorney knew it was fraudulent. Not only should Jeff Ashton and Linda Drane Burdick be sued but they should face sanctions from the Florida Bar Association for these unethical tactics. The claim that Casey Anthony made 84 computer searches for chloroform alone is enough to conclusively demonstrate that the SAO and OCSO were neither thorough nor fair in their pursuit of “justice.”

            Oh boy, the list could go on and on. Remember George Anthony’s testimony for the prosecution about his fantastic memory of minute details from June 16th? Only savants remember details of unremarkable events months later. For George Anthony that day was obviously not unremarkable. It was “forever fixed” in his memory because he understood at that time that it was the last day he would see her alive. I expect law enforcement and state attorneys to not use lies in their efforts to inject lethal poison into those they suspect of wrong doing. Surely, you’ll agree with me there.

            I’m all for locking dangerous criminals away to protect society from them. I’m all for punishing those who lie to law enforcement when they are investigating a missing child. There is no legitimate evidence that Casey Anthony is a dangerous criminal. In fact, a lot of testimony presented by the state was that she was a loving mother, a moderate drinker, and a generally kind and considerate friend. She also told many lies both before and after June 2008. She lied so often and with such detail that more thorough detectives and fairer-minded prosecutors would have recognized a severe pathology that was wholly unhelpful in determining her guilt or innocence in her daughter’s death.

            Punishing the theft of her friend’s money through check fraud during June and July of 2008 is something I expect as a dispassionate citizen. Setting a bond at 500,000 dollars for such petty crimes however is not what I expect from a fair judge. But even that isn’t as egregious as holding her later without bond while awaiting her murder trial. I happily accept that Casey Anthony was convicted and punished for her lies that hindered a missing child investigation but the end-to-end sentences and the stacking of counts by Judge Perry was anything but typical and I suspect those sentences will be overturned.

            Judges may not be sued for violations of civil rights or for any reasons. They are however subject to the Florida Code of Judicial Conduct. Judge Strickland violated at lease two of the code’s canons. As I noted in another comment, Casey Anthony’s acquittal saved Judge Perry from a different sort of sanction–being overturned on appeal for multiple errors of law and due process.

            State attorney offices however can be sued. Individual prosecutors can also be sued; the Department of Corrections can be sued. Libel and slander by television networks, individual media “personalities” and commentators are also causes for a suit of redress.

            You write that I think “they all had a personal vendetta against Casey.” You are partially right on that account. I can’t say that Jeff Ashton, Linda Drane Burdick, detectives in the OCSO, members of the local media, and Headline News had vendettas. I do know though that they certainly acted as though they did. And they still do. It’s the most bizarre phenomenon in my lifetime which is the only reason it interests me at all.

            I did not know Caylee Anthony. I doubt you knew her either. But we both should be concerned about justice. It’s our duty actually wouldn’t you say? Justice is the combination of doing what is ethical (following the law) and doing what is rational. I read and hear about people’s compassion for what they assume was the suffering of little girl. All of that certainly has a place–church maybe or around the dinner table or water cooler. That isn’t justice however and the judiciary is intentionally and expressly established in order to not deal with accusations of wrong doing based on emotions like empathy or sympathy.

            If you are for justice you should be for holding the OCSO, the SAO, and the biased actions of Judge Strickland accountable.

  2. Richard, thank you. You have been such a big help to me over at the WS site and I truly LOVE reading here, even though I don’t post much. I’m sooo glad that you are in Fla. and NOT Kentucky!! The thought of you defending my brother’s murderer would break my heart!! Only because, I think you could pull off an acquittal. Thank you again for helping me to understand our Judicial system better , and thanks for not charging! 😉
    Your friend! Tulessa.

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