High court is Childers' last hope to avoid prison

The 1st District Court of Appeal upholds the former Florida Senate president's bribery conviction, after a panel nearly reversed it.

Published July 1, 2006

TALLAHASSEE - Former state Senate President W.D. Childers will take his case to the Florida Supreme Court after losing a second lower court appeal of his conviction for bribery.

The 1st District Court of Appeal, in a 10-4 opinion, rejected Childers' second appeal of the conviction. It stemmed from his service as an Escambia County commissioner after he left the Senate in 2000.

The Pensacola Republican was sentenced to 3½ years in prison three years ago but has been free on bail. Circuit Judge Jere Tolton agreed Friday to let Childers remain on bail for another 30 days so he can appeal to the Supreme Court.

Childers will have to turn himself in to begin serving his sentence if the high court fails to make a decision on whether to take his case by July 31, Tolton said.

One judge's concurring opinion in the latest appellate ruling, issued Wednesday, questioned the participation of another judge.

Judge Michael Allen wrote that Chief Judge Charles Kahn, a former law partner of Childers' close friend and sometime attorney, Fred Levin, had been set to cast the deciding vote in a three-judge panel's 2-1 opinion that would have reversed Childers' conviction. But four days before it was due to be issued, the full court decided to hear the case.

Allen wrote that Kahn should have withdrawn from consideration of the case because of his link to Levin, citing newspaper articles that detailed a close relationship among Levin, Childers and then-Gov. Lawton Chiles during the 1990s.

Allen wrote that judges "should never perform our responsibilities in a manner that would cause the public to question the impartiality of our decisions. Yet, I believe that is precisely what Judge Kahn did by failing, on his own motion, to recuse himself from consideration of this case."

Kahn would not comment directly on Allen's opinion, but he denied that Childers' being an acquaintance of a former law partner constituted a conflict of interest. Kahn said he never had a social or business relationship with Childers.

Another judge, Ed Barfield, who once practiced law in Pensacola, did recuse himself from the case.

If the full court had allowed the three-judge panel to reverse Childers' conviction, he might have gone free without retrial because a key prosecution witness, another convicted Escambia commissioner, Willie Junior, later committed suicide.

Childers was convicted of bribing Junior to vote in favor of purchasing a defunct soccer complex for the county. Childers was suspended from the commission by Gov. Jeb Bush after his 2002 arrest.

The new appellate opinion rejected Childers' argument that it was improper for the full court to take over the case. Kahn wrote a dissent that urged the Supreme Court to address that issue, but he did not address Allen's complaint.