A sexual predator who was sentenced to 50 years in prison will be released and put back on probation, an appeals court has ruled.
David Leroy Wharton pleaded guilty in 2004 to two counts each of sexual battery and lewd and lascivious behavior. He was sentenced to 10 years in prison followed by five years of probation after.
He was released in September and began serving probation when his ankle monitor showed he had left Pasco County and visited Hillsborough State Park, where children gather, without his probation officer's permission.
That's when Circuit Judge Pat Siracusa handed Wharton another 50 years in prison for violating his probation.
But Wharton is mentally disabled and can't read or write. His sister, who cares for him, had taken him to Hillsborough with her when she visited a sick friend. He was outside the county for 40 minutes.
The Second District Court of Appeal found that because Wharton's actions were not willful, the state did not meet its burden of proof for a violation, and the judge erred in revoking his probation.