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Judge seeks shorter sentence

Circuit Judge Harry Lee Coe III says he was wrong to sentence a man to an illegal 30-year prison term. Now he's trying to make things right _ or at least legal. Coe has asked a public defender to try to retrieve the case of Earnest Earl McNeal from an appellate court so that he can shorten McNeal's sentence to a legal term.

"It was clearly an error," Coe told Assistant Public Defender Stephen Dehnart in court Tuesday. "So just contact (the appellate court) and ask them if they can, they think it's worth the effort to send it back for correction of sentence, which I will be glad to do."

Coe's decision follows an article about McNeal's case published in the St. Petersburg Times Sunday. The article described how Coe gave McNeal a 30-year prison sentence _ 10 times the term recommended by state guidelines and double the legal maximum.

McNeal, 41, was sent to a Panhandle prison during the summer for violating his probation. He said Wednesday that he is pleased with Coe's latest request.

"I'm glad of that," he said. "I've been praying . . . day and night."

But McNeal's problems might not be over. In court, Coe suggested that he plans to reduce McNeal's sentence only to the legal maximum, 15 years. That would still be five times the term recommended by state guidelines.

McNeal says he would fight a 15-year sentence. "He's violating my constitutional rights when he exceeds the guidelines like that," McNeal said in a telephone interview from Calhoun Correctional Institution.

Coe did not return phone calls to his office Wednesday. Nor did Dehnart, the defense attorney who offered a token protest when Coe imposed the illegal sentence June 18.

State sentencing guidelines are supposed to keep judges from imposing unreasonable sentences. The guidelines take into account a person's past record and current crime when figuring a recommended sentence.

McNeal was not the type of criminal whom judges normally lock up for decades. McNeal was on probation for selling a stolen car for $100. After he violated that probation for the second time, sentencing guidelines called for Coe to give him three years in prison.

"Thirty years," Coe ordered.

The law requires a judge to provide "clear and convincing reasons" for exceeding the recommended sentence, said Bill White, chairman of the criminal law section of the Florida Bar. But defining "clear and convincing" is a task often left to appeals courts.

The 2nd District Court of Appeal repeatedly has overturned Coe's sentences for being excessively severe, according to a legal database search. In a decision filed Oct. 26, a court decision to reverse Coe in another case noted that Coe "was unaware the sentence represented a departure" from the guidelines.

In McNeal's case, Coe clearly knew he was going beyond the recommended sentence. In an order explaining the June sentence, he said he was punishing McNeal for failing to pay court-ordered costs, using drugs and driving while his license was suspended.

Coe also wrote that McNeal had a "lengthy criminal record."

State law allows judges to double the legal sentence for criminals classified as "habitual offenders." To impose such a sentence, court officials must go through a classification process _ one that was not used in McNeal's case.

"He clearly should have been noticed and treated as a habitual offender, but somehow he wasn't," Coe said Tuesday.

But lawyers say Coe is wrong about that. State law allows criminals to be labeled "habitual offenders" only if they had two previous felony convictions; McNeal had none.

It was apparently McNeal's record of 15 misdemeanor convictions on offenses including drinking on the street, writing worthless checks and trespassing that led Coe to conclude he had a "lengthy criminal record."

"You can't habitualize him for misdemeanors," defense attorney Dehnart said last week. "That's weird."

After McNeal appealed his initial sentence, the 2nd District Court of Appeal took jurisdiction of the case. If Coe succeeds in bringing it back, he plans to resentence McNeal on Tuesday.

_ Times researcher Kitty Bennett contributed to this article.

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