By now most people have heard about the Herbert Smith Case. At the very least you may have seen a thing or two (or ten) written about Judge Destry. If you haven’t, here are a few articles to get you up to speed (here, here, here and here). The media has jumped all over Judge Destry for several questionable decisions and a pattern of erratic conduct. Credit Herbert Smith for opening up the flood gates and exposing what many already knew: justice isn’t always easy to find.
I have heard all the arguments about Herbert Smith’s sentence, ranging from he deserved the 60 years to 60 years being completely inexplicable. I respect everyone’s opinion about what an appropriate sentence should have been. In fairness to Judge Destry, there are likely other judges in Broward County who would have given Herbert Smith a prison sentence. There also might have been a couple that would have given him another chance on probation. However, based on my training, experience, and having appeared in front of most of the criminal judges in Broward County, no other judge would have come close to sentencing Mr. Smith to 60 years in prison. Regardless of your feelings as to the sentence, there is one thing that is not debatable: Judge Destry’s first sentence of prison followed by a probation sentence a week later is bizarre. If Judge Destry truly thought 60 years was the appropriate sentence, it would have been unconscionable to turn around and release Mr. Smith back into the community on probation. That decision cannot be rationalized as merely “having a bad day at the office”. Although Destry did not have an opponent at the time, some would say that such a decision reeks of political motivation in light of the upcoming judicial election.
Full disclaimer here: I am Brian Greenwald’s treasurer. Brian is running against Judge Destry in this year’s upcoming election. I have practiced law with Brian, and I have tried cases in front of Judge Destry. I can say that I have both won and lost trials in front of Judge Destry. I do not harbor any ill will towards Destry, and I have not had a client sentenced to the extent of Herbert Smith by Judge Destry. Please keep in mind, being a judge is often a thankless job. Judges get paid to make tough decisions that often turn out incorrectly no matter how much time and energy they spend trying to get it perfect. Most of the time judges make accurate decisions that nobody hears about. People don’t always give them a pat on the back when they deserve it, but people are quick to criticize when they get it wrong. With that disclaimer out of the way, let’s move on.
Recently, I stumbled upon an appellate case, Dinkines v. State, which featured Judge Destry issuing a sentence that did not comport with the law. The story of Ms. Dinkines’s sentence is one that has thus far avoided the public eye. Her case should not, however, be viewed as an unfortunate ruling or a mere foot note in an imperfect criminal justice system. Her story, much like Herbert Smith’s, deserves attention.
First let me start out by pointing out some differences between the cases of Mr. Smith and Ms. Dinkines. Ms. Dinkines was not being sentenced on multiple open cases that included counts of burglary and armed burglary like Smith, but on only one count of False Verification of Ownership to a Pawnshop Owner, a 3rd degree felony. Ms. Dinkines had not violated her probation after a plea deal, instead she exercised her constitutionally protected right to go to trial. Ms. Dinkines did not have an extensive criminal record, rather she had no criminal history that could be used against her. Finally, Ms. Dinkines was a white female not an African American male like Mr. Smith. Unlike Smith’s case, the media never concerned themselves with Ms. Dinkines’s plight.
The sole common denominator between Ms. Dinkines and Mr. Smith: Judge Destry.
Ms. Dinkines was charged with dealing in stolen property and false verification of ownership to a pawnbroker in relation to a stolen $100 lawnmower that she pawned for $45. There was no proof that Ms. Dinkines stole the lawnmower and, in fact, the State Attorney had charged another individual for that crime. The jury acquitted Ms. Dinkines of the more serious charge (dealing in stolen property) and only found her guilty of the false verification charge.
After trial, a scoresheet was prepared pursuant to and in accordance with the criminal punishment code and a pre-sentence investigation was ordered. In Florida, a scoresheet is created for every defendant facing felony charges. A scoresheet that totals 44 points or higher means that the defendant must be sentenced to Florida State Prison, absent a legal basis for a downward departure. A scoresheet is a compilation of a defendant’s current charges and their past charges. Every crime is given a point total based on the seriousness of the charge. Ms. Dinkines’s scoresheet totaled a mere 4 points. By virtue of her score (or lack thereof), Judge Destry was required to order a non-prison sentence. To give some perspective, a first time offender who is charged with possession of cocaine scores 16 points, or 4 times higher than what Ms. Dinkines scored. In fact, 4 points is the lowest possible score that any defendant can have on a scoresheet. In other words, her felony charge scored as low as, or less than, any other felony charge codified by our lawmakers and she had zero prior offenses on her scoresheet.
A presentence investigation, commonly referred to as a “PSI” is largely utilized for first time offenders. During a PSI the Florida Department of Corrections (usually a probation officer) does a background search on the offender. This usually includes interviewing the defendant’s family, the victim and looking at the defendant’s prior criminal history among other variables. They consider a myriad of other factors to decide whether the defendant poses a danger to the community. At the conclusion of the information gathering stage, the probation officer then makes a recommendation to the court as to what sentence is appropriate. The presentence investigation (PSI) in Ms. Dinkines’s case recommended that she be sentenced to a withhold of adjudication and one year of probation. A withhold means that the defendant would not receive a felony conviction. A felony conviction can have grave consequences to people especially when it comes to getting a job. In addition, a withholding of adjudication would have allowed Ms. Dinkines a chance to seal her record upon the successful completion of her probation. Ms. Dinkines’s defense attorney asked Judge Destry for the exact same sentence the PSI recommended. After all, Ms. Dinkines was found guilty of pawning a lawnmower that did not belong to her, worth an estimated value of $100. The State Attorney asked Judge Destry to consider additional crimes that Ms. Dinkines was not found guilty of, charged with, or even accused of. This argument, without any concrete evidence of guilt, is extremely improper. Be that as it may, the State Attorney did not ask the Court for a prison sentence. The State recommended probation with the special condition of 180 days in the county jail.
What happened next, nobody could have foreseen.
Judge Destry stated the following:
All right, look, I presided over this trial. I heard the testimony. Ms. Dinkines, you are a thief, that's what it comes down to. Without your participation, Mr. Lynn wouldn't have been able to pawn these items. That much is clear to me. You're the yin to his yang, so to speak, you are the other side of the coin here. You are a facilitator in these transactions. You are a participant in all of them, especially with regards to this one here, the one I'm looking at, it's clear your participation. I don't think you are remorseful. I don't think you care about the victim in this case. I think without a meaningful punishment here the reality is you would go out and do it again. The best I can hope for is a meaningful punishment to protect the citizens of Broward County from you. So I'm adjudicating you on this charge and I'm sentencing you to three years in Florida State Prison with credit for all time served.
That bears repeating: Judge Destry sentenced Ms. Dinkines to three years in prison. A sentence that ignored the recommendation of the PSI, ignored the defendant’s lack of prior criminal history, ignored the meager four points she scored on her scoresheet, ignored the State Attorney’s recommendation of a non-prison sentence, and (most importantly) ignored the law.
Sadly, there was no public outcry and no petition was signed. But the fight was far from over. Only this time, the defendant’s good fortune came from a judicial ally: the Fourth District Court of Appeal. The Appellate Court was aghast at the reasoning Judge Destry provided for Ms. Dinkines’s prison sentence finding it in clear violation of Florida Statute 775.082(10) as well as Ms. Dinkines’s due process rights.
In the State of Florida, a defendant cannot be sentenced to prison when scoring less than 22 points on the sentencing scoresheet without the court making an additional finding that the defendant is a danger to the community. That finding must be supported by evidence presented at the sentencing hearing. Judge Destry completely failed to make those findings. The Fourth DCA took it a step further when they made it perfectly clear that the facts needed for any judge to make such a finding did not exist in Ms. Dinkines’s case. Ms. Dinkines received a clean PSI. The Department of Corrections recommended her immediate release and did not even find grounds to make her a convicted felon. She totaled 4 points on the guidelines and was not accused of any crime involving violence. None of this screams “danger to society”.
Additionally, the findings that Judge Destry did make were completely improper and violated Ms. Dinkines’s due process rights. Quoting directly from the Appellate Court's decision: first, “the trial court's clear consideration of Dinkines's perceived lack of meaningful remorse in imposing a three-year state prison sentence constituted a due process violation,” and, second, “[i]t is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence.” Both of these violations are clear errors of law and should never have happened.
In the United States of America, an individual has the absolute right to remain silent. The Fifth Amendment of the Constitution deals with the right to remain silent and self incrimination. That means a defendant does not have to testify at trial or speak to the Court at sentencing. During jury selection, defense lawyers like me, spend significant time educating jurors on this instruction and weeding out the ones that cannot follow it. This is common place. In Ms. Dinkines’s case, Judge Destry clearly and incorrectly punished her for remaining silent and not expressing any or enough remorse. Ms. Dinkines did not have to say anything to anybody including the victim and the sentencing judge. That is the law. This right is constitutionally protected and has been in place for over two hundred years. Furthermore, a defendant is entitled to appeal his/her sentence. And many lawyers would find fault in allowing their client to admit guilt and express remorse for a charge that may be overturned. In this case, as the Fourth District Court of Appeal clearly opined, Judge Destry used Ms. Dinkines’s silence and or alleged lack of sincerity on this issue against her.
Judge Destry also erred by considering charges that Ms. Dinkines did not commit and was not convicted of when he fashioned her sentence. He went on to take out another man’s (Mr. Lynn) criminal transgressions against her when he said “you’re the yin to his yang.” Judge Destry even went as far as accusing Ms. Dinkines of being a “facilitator” in other, uncharged, transactions. The problem with Judge Destry’s statements is that Ms. Dinkines was only found guilty of one transaction – pawning the lawnmower. The jury is the finder of fact, not the judge. To imply that Ms. Dinkines was criminally involved in other uncharged criminal transactions was entirely improper. Our criminal justice system is built upon the premise that those accused of crimes are innocent until proven guilty. This is what makes it the greatest system in the world.
The Fourth District Court of Appeal sent a very stern message to Judge Destry. Not only did they send the case back to the Circuit Court for resentencing but they removed him entirely from Ms. Dinkines’s case; Judge Destry was not allowed to conduct her new sentencing hearing. In their minds, Judge Destry could no longer fairly and impartially pronounce her sentence. It is very unusual to remand a case and remove the sitting judge. A reversal is one thing, but a removal of the trial judge is an entirely different, and more serious, issue.
So what happened on remand?
Ms. Dinkines was resentenced by a different and impartial, judge: Judge Michael Usan. Judge Usan, is a veteran of the Broward County bench since 2012. He was appointed by former Governor Charlie Christ in 2010 and was reelected in 2012. He is a former prosecutor and defense attorney who also spent time as a lawyer in the Air Force. Although fair, Judge Usan has been known to dole out a tough sentence or two, especially when the facts seem to warrant one. Judge Usan, who was an experienced trial lawyer himself, is also well known for giving attorneys that appear before him the time necessary to work up their cases and explore all possible defenses. Judge Usan heard the argument from counsel regarding sentencing, and he quickly and more appropriately sentenced Ms. Dinkines to a withhold of adjudication and two years probation.
This is a classic case that illustrates the importance of the Fourth District Court of Appeal. The appellate courts are there to police the trial courts. They ensure that the lower court judges follow the law. The sad reality is that this blunder at the trial court level could have destroyed Dinkines’s life. Kudos to the Fourth DCA and Judge Usan for upholding and following the law. There is a moral to this story: Tough on crime can equal wrong on crime when tough on crime ignores the law.