In a 16-page emergency petition filed on Wednesday, the lawyers asked the Fifth District Court of Appeal in Daytona Beach to vacate what they said was an “illegal sentence.” Expedited review was necessary, the lawyers said, to “prevent the continued unlawful exercise of jurisdiction by the lower court.”
The lawyers said that although judges have the authority to correct a clerical error in a sentence still being served, they do not have the power to amend a sentence once it has been completed.
“Once a sentence has been fully served, even if it is an illegal sentence, the court lacks jurisdiction and would violate double jeopardy by resentencing the defendant to an increased sentence,” the appeal says.
At issue is a dispute over whether Ms. Anthony properly served her term of probation while she was still held in the Orange County Jail awaiting her trial on charges that she murdered her two-year-old daughter, Caylee.
While awaiting the murder trial, Anthony pleaded guilty to check-fraud charges and was sentenced to time she’d already served in jail plus a year of probation. The judge in the check-fraud case, Stan Strickland, stated during the sentencing that she was to serve the probation upon release from jail. But Judge Strickland’s signed order did not spell that requirement out in writing.
As a result, the Probation Department conducted Anthony’s supervised probation while she was still in jail awaiting the murder trial. At the conclusion of her year-long supervision, Anthony was given a letter acknowledging that she had successfully completed her probation.
Anthony was later acquitted or the murder charges and was released from jail on July 17. The acquittal sparked outrage across the country among many who had been closely following the high-profile case and had concluded – unlike the jury – that she was guilty.
After her release, Strickland, acting on his own, issued a corrected sentence, ordering Anthony to return within 72 hours to Orlando to serve her probation term.
That order was stayed pending a hearing conducted by Chief Judge Belvin Perry. Last week, the chief judge reimposed Strickland’s amended sentence and ordered Anthony to report for probation by Aug. 26.
In his ruling, Perry said the goal of probation was to provide for a period of supervision once released from incarceration. Since Anthony had not been subject to supervision outside jail, her earlier supervision while in jail did not count to satisfy her sentence, the judge ruled.
The judge also blamed Anthony’s defense counsel for failing to notify Strickland that Anthony’s probation was being conducted while she was in jail.
In their appeal, the lawyers blasted back at Perry for what they said were “three pages of moralizing” in his ruling. They said state prosecutors received formal notice that Anthony’s probation was beginning in jail, but no notice went to defense counsel. In addition, they said Strickland “actually signed the original order which established probation while the defendant was awaiting trial.”
“That the court feels it necessary to chastise the defense (and the defense alone – by name) for not bringing this matter to the court’s attention is, at best, misplaced,” the appeal says.
Defense lawyers say both judges – Strickland and Perry – lacked legal jurisdiction to take up the matter since Anthony had already completed her full sentence. The actions of both judges violate the constitutional ban on double jeopardy, they said.
The lawyers charged that Strickland was motivated by personal bias against their client, citing one-sided comments the judge made in television interviews after the not guilty verdict was announced in the Anthony case.
At one point Judge Strickland told an Orlando television station: “I think the prosecution presented their case beautifully. I think if you follow the dots and connected them there wasn’t a reasonable doubt.”
Anthony’s lawyers referred to Strickland’s resentencing as “a vindictive act by a glaringly biased judge.”
Strickland’s resentencing of Anthony “was taken 562 days after the defendant’s probation began and without request from the State of Florida, with no notice to the defendant or her counsel, and without regard for the fact that defendant had successfully completed the terms of her probation,” the appeal says.
The lawyers also criticized Perry’s ruling upholding Strickland’s earlier actions.
“While the court expresses some of the philosophical reasoning behind probation, any suggestion that a period of probation cannot be served by one in jail … is an argument to be made to the legislature and not a justification to impose a second sentence in violation of Double Jeopardy,” the appeal says.
Anthony has remained in an undisclosed location since her release from jail in July. Her lawyers say she has received death threats.