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Judge imposes illegal sentence

Circuit Judge Harry Lee Coe III is known for slapping criminals with tough sentences. But in the case of Earnest Earl McNeal, he imposed a sentence that went beyond tough. All the way to illegal.

Coe locked up McNeal for 30 years for violating the terms of his probation _ double the legal maximum of 15 years and roughly 10 times the sentence recommended by state guidelines.

"If the law applies to me, it ought to apply to him even though he sits on that bench," McNeal said from prison. "I'm telling you, the man just went outrageous. There is no justifying what the man did to me."

When contacted by the St. Petersburg Times, Coe did not comment on McNeal's case. Instead, he had his judicial assistant refer a reporter to court records.

The records don't explain why Coe gave McNeal an illegal sentence. But they do show that McNeal was not the type of social menace judges normally imprison for decades _ particularly nowadays, when prisons are hard-pressed to find space for even violent criminals.

McNeal wasn't guilty of a violent crime; he was on probation for selling a stolen car for $100. He hadn't violated his probation by committing any serious new crimes. He failed to pay court-ordered fees, smoked

marijuana and drove without a license.

His punishment was dramatically more severe than that given to other defendants. On the same day Coe gave McNeal a 30-year sentence, he gave a five-year sentence to a man who had violated his probation by getting drunk and killing a woman while driving his car. That man had been on probation for aggravated assault with a deadly weapon.

Only Coe knows why he sentenced McNeal so severely. But lawyers who have practiced in front of Coe have a theory: McNeal committed an unpardonable sin in Coe's courtroom _ he insisted he was innocent after Coe had decided otherwise.

"Attitude is key," said Brian Donerly, who spent five years as a public defender before he left for private practice. "Judge Coe likes you coming in there contrite, sorry for what you did, ready to take your punishment. He doesn't like you coming in challenging the system."

Court records suggest that McNeal angered Coe by refusing to pay restitution to a victim who could not be located. Andrea Wilson, another defense lawyer who has appeared before Coe, said that angering Coe is the quickest route to a severe sentence.

"But judges ought to be above that," Wilson said. "This poor man sounds like he was treated unfairly."

No mercy

To hear Ernest McNeal tell it, the trouble came because he wouldn't abandon his principle.

From the start, McNeal has maintained he was innocent of dealing in stolen property. Police said he took $100 as payment for a stolen car. McNeal says he had no idea the car had been stolen.

"As God is my witness, I never took the car," said McNeal, 41.

Coe didn't believe him. In a non-jury trial in October 1987, he found McNeal guilty and sentenced him to three years' probation. In February 1988, McNeal was brought back before Coe for violating his probation by failing to give a monthly report and $90 in fees to his probation officer. Coe sent him to prison for nearly a year. On Jan. 5, McNeal was released to begin 12{ years on probation.

When McNeal left Florida State Prison that winter day, he had $100, a Greyhound bus ticket and hopes for something better.

He arrived in Tampa dressed in new jeans and a black sweat shirt, landing a $130-a-week job washing dishes and cooking in a restaurant. As required, he visited his probation officer.

But McNeal didn't tell the officer what she wanted to hear. Still asserting his innocence, he said he didn't want to pay the fees required by his probation: $3,500 to the victim of the car theft and $790 in court costs and public defender fees.

He also made the mistake of driving with a suspended license and smoking marijuana at a party. On June 6, he found himself back in Coe's courtroom.

A transcript of that hearing shows that Coe's main concern was the unpaid costs. McNeal explained that he wasn't paying because he thought he had been treated unfairly by the court system.

"I may be wrong for feeling that way, sir, but that is how I feel," McNeal told Coe.

Coe heard McNeal's explanation, but offered no response. "All right," he said. "Incarcerate him."

At his sentencing hearing June 18, McNeal had softened his stand. In a letter to the judge, McNeal wrote: "I am more than willing to pay the restitution but just need some time to start payments."

McNeal's probation officer already had requested that the judge not require restitution because she couldn't find the victim. McNeal's public defender reminded Coe of that on June 18.

Coe listened but showed no mercy. "All right," he said. "I make adjudication of guilt. . . . I will sentence him to 30 years in the Florida State Prison."

"Somebody screwed up'

After Coe pronounced his sentence, McNeal's public defender offered a token protest.

"Just for the record, Judge, I probably should put my objection on the record," said the lawyer, Stephen Dehnart.

Legal experts say Dehnart should have protested loudly _ and with good reason.

State sentencing guidelines, which are supposed to keep judges from doling out unfair sentences, recommended a sentence of three years, with a maximum of four and a half. State law forbids a sentence of more than 15 years for McNeal's offense.

"Under no circumstances can the judge exceed the maximum penalty for the crime," said Bill White, chairman of the criminal law section of the Florida Bar. "He got 30 years? .

.

. There is no lawful authority to go beyond 15 years."

One way to double the maximum sentence is to classify a defender as a habitual offender, White said. State law allows such classification for people previously convicted of two felonies.

McNeal didn't fall into that category; the stolen property case was his first felony conviction.

McNeal had been convicted of 15 misdemeanors at the time of his sentencing, including disorderly intoxication, drinking on the street, writing worthless checks and trespassing.

At the hearing June 18, Coe read aloud from a list of those crimes, as well as some charges that had been brought but later dropped.

Public defender Dehnart piped up. "Those charges that you read off were prior to him being placed on probation for this charge," he said.

"That is true," said Coe.

"You can't reach back and find something in his prior history .

.

." Dehnart continued. "The only reason that you can exceed the guidelines at this point is something that he did subsequent to being placed on probation."

Coe didn't respond. But in his order explaining the sentence, he wrote: "The defendant has a lengthy criminal record."

Although Coe was tough on McNeal that day, he dealt more leniently with other defendants. One of them was Roberto Ribera Amberiz.

Amberiz, 33, was on probation for aggravated assault with a deadly weapon. His probation violation was not technical, like McNeal's failure to pay costs. It was for committing a new crime: He killed a woman while driving drunk. Coe sentenced Amberiz to five years in prison followed by five years' probation.

McNeal is appealing the sentence, but that could take years. Meanwhile, he shares a dorm cell with 70 other inmates at the Calhoun Correctional Institution in northern Florida. He lifts weights, tosses a basketball and thinks about his nine grandchildren growing up without him.

And he wonders whether somebody can help.

One of those who could, public defender Dehnart, said last week that he doesn't recall many details of McNeal's case. But he said he was surprised that he hadn't protested Coe's 30-year sentence more aggressively.

"It seems to me I should have said, "Judge you can't do that. You can only give him 15 (years),' " Dehnart said. "Somebody screwed up somewhere."

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