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Clerical error may net man new trial

A misfiled document leads an appeals court to throw out the conviction of a habitual offender serving a five-year prison sentence.

By CARRIE JOHNSON, Times Staff Writer
© St. Petersburg Times
published November 24, 2002

INVERNESS -- Brian Keith Glass doesn't have a rap sheet. He has a rap book.

Glass, 41, has been arrested 46 times since 1980. The charges include forgery, shoplifting, probation violation, larceny, burglary, trespassing, drug possession, battery, resisting arrest, driving under the influence, obstructing justice, vehicle theft, arson. The list goes on and on.

In September 2001, Circuit Judge Ric A. Howard decided to end Glass' repeated run-ins with the law by sentencing him to a five-year prison term for criminal mischief.

But the perpetual defendant may be returning to the Citrus County courthouse yet again. Earlier this month, an appeals court threw out the conviction for the most ironic reason: Glass, who has faced almost every charge in the book, had the wrong charge listed next to his name on a single, inconsequential court document.

"My initial reaction was that I was shocked," said Assistant State Attorney Richard Buxman, who prosecuted the case. "But now I think I know what may have happened. I think the (appellate) court's decision is based on incomplete information."

The basis for the appeal is a single sheet of paper.

A clerical error

That sheet lists the charges filed against Glass after his January 2001 arrest.

He was charged with criminal mischief and trespassing, which are both typically misdemeanors. However, because Glass has been convicted of criminal mischief in the past, the count was elevated to a felony, as is called for under state law.

Herein lies the complication: Under Florida law, jurors in most cases are not supposed to know the criminal history of a defendant during a trial.

To inform jurors Glass had been charged with felony criminal mischief would have been tantamount to disclosing his previous conviction.

So Buxman made up a dummy sheet to give to the jury that listed the charge simply as "criminal mischief."

The dummy sheet was not intended to be added to the case file, but somehow it was, according to Assistant Attorney General Lamaya Henry, who represented the state during Glass' appeal.

The 5th District Court of Appeal, when reviewing the case, ruled Glass had been charged with a misdemeanor, not a felony. That negated the guilty verdict and the five-year sentence Judge Howard eventually imposed, the court ruled.

Felonies are handled in circuit court, where Howard presides. Misdemeanors are tried in county court. The court of appeal found Glass should have been tried in county court because he was charged with misdemeanors.

Henry argued to the court no legal error actually occurred because the state always intended to charge Glass with a felony. The filing of the revised charge was merely a clerical error, she said.

The appeals court judges obviously weren't swayed. They reversed the guilty verdict and ordered a new trial.

Glass' long criminal history makes the case especially frustrating to prosecutors.

At the sentencing hearing, Buxman told Howard that Glass was on an "endless cycle" between jail, court and the outside world.

"Mr. Glass doesn't seem to learn that he can't break the law whenever he wants," Buxman said, according to a transcript of the hearing.

Howard read aloud from the record of Glass' convictions.

"Two driving while license suspended, two failures to appear in court, three trespasses, two possession of (drug) paraphernalia, one improper exhibition, five batteries, one petty theft, one grand theft," said Howard, pausing.

"It's almost like a song, isn't it?" he asked.

The five-year sentence was a tough penalty for a relatively minor offense. Glass was arrested Jan. 6, 2001, when authorities said he refused to leave Wet Willie's Lounge after owner Ray Bass ejected him.

In a deposition, Bass said Glass was drunk and belligerent with other bar patrons that night. Bass told him to leave the bar and called the Citrus County Sheriff's Office, court records showed.

When deputies arrived, they tried to calm Glass, who was swearing and pacing in the parking lot. He refused to cooperate, and the deputies eventually loaded him in a van and took him to the Citrus County jail.

At the jail's entrance, Glass kicked out the van's window, according to the court documents. For this, he was charged with criminal mischief.

At the sentencing hearing, Glass said he regarded the offense as minor and refused a plea bargain that called for 30 months in prison.

"It was a window in a van and they offered me 30 months," he said, according to the transcript. "I thought it was a little outrageous."

Glass was not present during his one-day trial. According to court documents, he fled to South Carolina after jury selection. Soon after, he was arrested there on a charge of driving under the influence and returned to Citrus County when South Carolina authorities were notified of his pending legal problems in Florida.

The trial continued without him, which was one of the main factors brought up on appeal, said Meghan Ann Collins, a public defender who represented Glass.

She said she could not discuss the case further without permission from her client.

Glass remains in Hamilton Correctional Institute Annex in Jasper, where he has been since January. The appellate court's decision means he is entitled to a new trial. He also could opt to accept a new plea agreement.

But Buxman said he doubts a new trial will ever occur. Prosecutors have until the end of this month to petition the court for a new hearing.

To prepare, he has asked for a transcript of the trial, which was not provided for the justices during their deliberations.

Buxman said he believes the transcript will prove the dummy sheet was never intended to be filed.

"Who knows how this happened?" he said. "I'm still not precisely sure. But we're going to find out."

-- Carrie Johnson can be reached at 860-7309 or .

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