Judges say man was jailed unfairly

By WILLIAM R. LEVESQUE

© St. Petersburg Times, published December 27, 1999

LARGO -- As police investigated the beating of Daniel Hurley on Nov. 6, the homeless man learned he had trouble beyond his bruises.

As they investigated, Pinellas Park police discovered that a judge had issued a warrant for Hurley's arrest. Months before, he was found in contempt for failing to pay a $220 fine on a misdemeanor conviction.

Police arrested him. The next day a circuit judge offered the 42-year-old transient a simple choice, his attorneys say. Hurley could pay the fine and be released immediately. Or he could spend 220 hours, or about nine days, in the Pinellas County Jail.

It's called pay or stay.

"I don't think he had a dollar in his pocket," said his court-appointed lawyer, Assistant Public Defender Michael Fluke.

In a nation without debtor prisons, Hurley spent the next nine days in jail simply because he was broke and unable to pay a fine.

"It was," said Fluke, "an illegal sentence."

Pinellas County judges agree Hurley should not have been jailed. They say the case is an aberration in a system that seeks to enforce court fines while protecting the rights of the truly indigent.

Last week, judges and Pinellas-Pasco Public Defender Bob Dillinger worked out an agreement to prevent a repeat of Hurley's case, putting in writing a system of safeguards the public defender said judges should have been following all along.

Primary among them: All defendants will be questioned about their finances before they are jailed.

It's something judges say they almost always do anyway. Still, Hurley was never questioned. And Dillinger fears others also may have been jailed illegally.

Pinellas County Judge Patrick Caddell, chief administrator for the County Court, said he recognizes that some defendants may have been mistakenly jailed.

"The bottom line is that we're going to a new procedure," Caddell said. "I think there has been some confusion in the past on this. . . . I don't care what system you have; someone will occasionally fall through the cracks."

How did Hurley slip through those cracks?

Dillinger's office said Circuit Judge John Lenderman, the judge before whom Hurley made his first appearance on the Saturday he was arrested, refused to inquire about Hurley's ability to pay the fine.

Instead, the judge gave him a choice given all defendants who have the money but refuse to pay fines:

Pay or stay.

Hurley received the fine after pleading guilty earlier in the year to a misdemeanor disorderly conduct charge for urinating in public.

Hurley, penniless, was jailed.

Lenderman said Thursday that he recalled little of the case. But the judge said he is "99 percent certain" he had ordered Hurley, who was to remain jailed, to appear the following Monday before the original county judge who had sentenced him on the disorderly charge.

Lenderman said that as the weekend first-appearance judge he would have known little of the case, including whether another judge had already inquired about Hurley's ability to pay.

A first appearance, Lenderman said, is not the proper place to inquire of a defendant's finances. Instead, it's the hearing at which a defendant is notified of the charge against him and bail is set.

And he said the Florida Supreme Court had previously ruled that defendants could legally be held for up to 48 hours while a determination is made about their ability to pay.

"I'm absolutely shocked that he spent nine days in jail," Lenderman said. "That's baffling. It should never have happened. I've always been very concerned about people who may be jailed improperly."

Caddell said judges normally ask defendants about their finances, not wanting to jail indigent defendants needlessly.

Very often, Caddell said, judges will bend over backward to help a defendant by offering payment plans or extensions of payment deadlines.

But Lenderman, a family law judge who works as a weekend first-appearance judge once a year, was unfamiliar with the misdemeanor system for collecting fines, Caddell said.

"Never send a circuit judge to do a county judge's job," Caddell joked.

No other judge, Fluke said, had ever asked Hurley about his ability to pay. In fact, after the deadline for paying the fine passed, the court sent Hurley a notice ordering him to court to explain why he hadn't paid.

The notice was returned to sender because Hurley did not live at the New York address he listed in court papers.

When he didn't show up at the hearing, a county judge found Hurley in contempt and sentenced him to 220 hours in jail unless he paid the fine.

Public Defender Dillinger says other problems exist in the way pay-or-stay defendants are found in contempt.

Pinellas County judges haven't specified the kind of contempt with which they cited these pay-or-stay defendants. There are two kinds: civil and criminal.

In civil contempt, the court is trying to compel a defendant to comply with a court order. An example is failure to pay child support. If a parent refuses a court order to pay child support, he or she can be jailed indefinitely for civil contempt until doing so.

The second type of contempt is criminal. Its purpose is to punish a defendant for failing to comply with a court order. In this case, a defendant would receive a fixed jail term.

Hurley and defendants like him were betwixt and between.

Before a defendant is jailed for civil contempt, a judge must inquire about the ability to pay. Someone who is penniless can't legally be jailed for failing to pay child support, a fine or any other financial obligation.

An indigent defendant found in criminal contempt must be appointed a public defender and given a hearing at which lawyers can argue about why a fine wasn't paid and ask for a client's release.

As a defendant who wasn't found in criminal contempt, Hurley did not receive the due process affording all criminal defendants: the right to a hearing on the charge.

In essence, his lawyers say, Hurley was sentenced in absentia.

"This procedure has been a problem, and it needed to be changed and we're doing it," Dillinger said. "There's nothing wrong with the court collecting a fine defendants are ordered to pay. But there's a right way to do it."

The agreement outlines a new method. Aside from making sure the judge inquires about the defendant's finances, defendants also will be advised at the time they plead guilty and are fined that failure to pay will result in an arrest warrant being issued. They will then be given a specific date to appear for a hearing should they be unable to pay.

Also, all defendants found in contempt will be guilty of criminal contempt, assuring them a hearing at which they can rebut charges.

Judge Caddell, however, warns that the new system may mean those who truly have the ability to pay could end up spending more time in jail than under the old system.

"People could spend more time locked up," he said. "But they're going to have due process."

Previously, someone could immediately pay a fine and walk. Now, bail will be set. And if bail cannot be met, a defendant could wait in jail several days for a hearing date, Caddell said.

But Fluke at the public defender's office said that isn't a problem.

"If you have the ability to pay and you didn't," he said, "then you've broken the law and should go to jail."

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