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State lawyers goof, miss out on appeal

By CARY DAVIS, Times Staff Writer
© St. Petersburg Times
published May 12, 2002

DADE CITY -- The news sent shock waves through the community: There would be no prison for James Hymiller, the Wesley Chapel High social studies teacher who received oral sex from a 15-year-old girl at school in May 2001.

State sentencing guidelines called for Hymiller, 28, to serve between nine and 30 years in prison. But in January, Circuit Judge Maynard Swanson suspended the prison sentence and instead placed Hymiller on house arrest and probation.

Not surprisingly, Pasco-Pinellas State Attorney Bernie McCabe was among those angered by the sentence. He said Swanson misapplied an April 2001 Supreme Court decision that gives judges the discretion to impose a lighter sentence on a sex offender if a minor victim consented to the illicit act.

A month later, McCabe's anger had shifted elsewhere -- to his Dade City office.

McCabe said he wanted to appeal Hymiller's sentence. But he missed the deadline. McCabe blamed the oversight on Dade City prosecutors who failed, he said, to send the necessary paperwork to the main State Attorney's Office in Clearwater.

By the time McCabe realized nothing had been done, the 30-day window to file an appeal had passed.

"We screwed that up," McCabe said. "I'm very upset at my staff for not getting me the information."

Assistant State Attorney Manny Garcia objected to Swanson's sentence during the January hearing, preserving the government's right to appeal. As the lead prosecutor on the case, it was Garcia's responsibility to write an appellate brief for supervisors to review. That wasn't done, Garcia acknowledged. Beyond that, he declined to comment.

McCabe said he didn't inquire about the status of the appeal "because it went off my radar screen."

"I assumed it would come to me," McCabe said.

McCabe declined to discuss any disciplinary measures, saying only that nobody was suspended.

"I'm dealing with it," McCabe said.

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