Right now there are dozens of individuals sitting in the Sumter County Jail under a sentencing scheme that is unique to Bushnell, Sumter County, FL. Under this sentencing scheme, the Honorable Thomas D. Skidmore avoids putting defendants on probation by giving them hefty suspended jail sentences. One wrong move and the jail sentence is imposed through something called an "order of commitment" which acts much like a arrest warrant.
If you want an explanation of how this sentencing scheme works then read an article we wrote a year ago complaining about the problem - Arraignment to Arrest Warrant: Sumter County Style.
The Florida Attorney General's Office Confessed Error
The Florida Attorney General's Office recently made a "confession of error" in a case involving one person detained under that type of sentencing scheme. Although that one person is now free, many other people are still being detained. Even more problematic, thousands of these "orders of commitment" are still waiting to be served.
RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS COMES NOW, Respondent, State of Florida, through the undersigned assistant attorney general, pursuant to this Court’s January 17, 2013, order and states the following:
Petitioner’s arguments appear to be well-taken. See Helton v. State, 106 So. 2d 79, 79 (“[T]he power to suspend the imposition of sentence upon a convicted criminal can be exercised by a trial judge only as an incident to probation”). See also Sears v. State, 889 So. 2d 956, 959 (Fla. 5th DCA 2004) (holding that a probationer is entitled to the due process right of an evidentiary hearing on his violation of probation).
Based on the arguments and authorities presented, Respondent respectfully requests this Honorable Court rule as the interests of justice require.The Fifth DCA decided that the interests of justice required transferring the case to the Circuit Court in Sumter County for a quick ruling.
Date: January 28. 2013
BY ORDER OF THE COURT:
The Petition for Writ of Habeas Corpus is hereby transferred to the Circuit in and for Sumter County. The transferee court shall treat the petition as if it had been originally filed there on the date it was filed in this Court. "Given the State's confession of error and the Petitioner's current incarceration status, we encourage the circuit court to proceed expeditiously in this matter."See ________ v. State, No. 5D13-0188 (Fla. 4th DCA January 28, 2013). The circuit court granted the petition for writ of habeas corpus and ordered the person to be immediately released from custody. Since ALL of these "orders of commitment" necessarily involve the imposition of a suspended sentence that is not incident to probation, then ALL of the orders of commitment are ILLEGAL.
What Can Be Done After the "Confession of Error"?
The easiest solution would be for the trial court to vacate all of the outstanding orders of commitment sua sponte. In the meantime, individuals or their attorneys will need to file motions to vacate the illegal sentences (before being detained in jail on the order) or a petition for writ of habeas corpus (after being detained in jail on the order).
The writ of habeas can be filed in both the Circuit Court of Sumter County and the Fifth DCA, since both have concurrent jurisdiction. The Fifth DCA may transfer the case back to the Circuit Court for a quick ruling, but at least the Fifth DCA and the Florida Office of the Attorney General can be reminded that the problem is ongoing.
No filing fee is required to file the petition. In the Fifth DCA, the petitions are filed electronically. The petitions are heard on an emergency basis, usually within three business days. Because the illegality involves violations of due process and double jeopardy under the Constitution of the United States, a petition for writ of habeas corpus could also be filed in federal court.
Others Involved in the Sentencing Scheme
Every time such a sentence is imposed, an Assistant State Attorney is in the room. Although the Florida Attorney General's Office made a "confession of error" on behalf of the local prosecutors, those local prosecutors still have an obligation to acknowledge the problem by objecting.
Under this scheme, the clerk's office in Sumter County, headed by Gloria R. Hayward, takes the place of the probation officer (without any of the training or accountability) and notifies the judge when a defendant does not comply with the terms of the suspended sentence. The clerk's office then prepares a "Clerk's Certificate" form that alleges the violation and sends it off to the judge. The form prepared by the clerk's office contains an "Order of Commitment" at the bottom which is signed by the judge.
Of course, the Sumter County Sheriff's Office uses its officers to wrongfully arrest individuals on the bogus "orders of commitment." Then the Sheriff's Office illegally detains those individuals in the jail to serve out the number of days listed on the "order of commitment" (at least until an attorney files a petition for writ of habeas corpus.)
Time to Stop
Seems like the county is taking on a lot of liability now that the Florida Office of the Attorney General has confessed error. Florida law was already "clearly established" that such a procedure was not allowed, but it doesn't get any more clearly established then it is right now.