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Sheriff says pre-arrest diversion works. A lawyer is challenging that.

DIRK SHADD | Times Pinellas County Sheriff Bob Gualtieri during a news conference at the Sheriff's Office in Largo last year.
Published Jan. 22, 2018

On an April morning last year, a Toyota Camry was parked in Richard Bandelow's reserved spot outside his Redington Beach apartment.

So Bandelow keyed the car's hood, according to an arrest report.

Pinellas Sheriff's deputies arrested the 55-year-old on a charge of criminal mischief. At the jail, he was referred to the county's Adult Pre-Arrest Diversion program for people facing certain misdemeanor charges.

If Bandelow completed 24 hours of community service and paid up to $1,000 to the victim for car repairs, he would avoid having an arrest on his record.

But two weeks later, the Sheriff's Office told Bandelow his APAD agreement was terminated. The repair estimate was now $1,700, making his criminal mischief offense a felony.

His attorney, Marc Pelletier, told the Sheriff's Office his client was willing to pay the extra $700 if he stayed in APAD.

Bandelow was arrested anyway.

"They made a deal with him," Pelletier said. "He held up his end of the bargain and they did not."

Pelletier is challenging Bandelow's case in Pinellas County court as the APAD program completes its first full year. According to Sheriff's Office statistics released this month, 3,758 people were screened for APAD eligibility in 2017. Of those, 1,443 were accepted.

That brings the total of people accepted since APAD's launch in October 2016 to 1,851.

The program is led by Pinellas Sheriff Bob Gualtieri and lauded as one of the largest criminal justice reforms in Tampa Bay. It was created as a way to keep people, primarily first-time offenders, away from a criminal record and lessen the burden on the Pinellas court system.

Among some of the report's highlights: The top three offenses were possession of marijuana, retail theft, and battery. In all, participants have completed nearly 24,874 community service hours and paid $17,553 in restitution.

"I think it's extremely successful," Gualtieri said. "I think it has met expectations and that we have met what we set out to accomplish."

When asked about Bandelow's case, Gualtieri said situations where participants are terminated because new details surfaced in their cases afterward is rare.

"We're trying to make the best decisions we can with the information that's available to us," Gualtieri said.

Pinellas-Pasco Chief Assistant State Attorney Bruce Bartlett said he had only heard of one other similar situation. A woman enrolled in APAD for battery was later charged with a felony after police learned the victim was in the hospital with serious head injuries.

"Stuff like this happens when you have quick referrals being done by the Sheriff's Office. I'm not being critical. That's just the nature of the beast," Bartlett said. "Honestly, I don't think you can work out those glitches."

Bandelow was originally facing a felony criminal mischief charge. Prosecutors later told Pelletier that they could downgrade it to a misdemeanor if his client enrolled in a pre-trial intervention program. If he completed it, they would dismiss the charge.

But that program included many more conditions than just community service and restitution, so Bandelow declined. Before his April arrest, Bandelow did not have a criminal record in Florida but was arrested in November in an unrelated felony case, records show.

Pelletier also filed a motion to have Bandelow's case heard outside of the Pinellas-Pasco circuit. His reason: Chief Judge Anthony Rondolino is among the stakeholders in APAD, including all the Pinellas police chiefs, State Attorney Bernie McCabe, and Public Defender Bob Dillinger, who signed the program's memorandum of understanding.

That motion was denied and Pelletier filed an appeal with the 2nd District Court of Appeal, which was also denied this month.

Among Pelletier's other clients is Marilyn Okula, accused of shoplifting at Goodwill last April. In her arrest report, a deputy noted she didn't qualify for APAD "due to prior criminal history."

According to the program's criteria, participants can't have a felony conviction within the past five years and a misdemeanor conviction within the past two years.

Okula's last conviction was in June 2011. In court records, prosecutors said she was on probation until 2013. But the APAD agreement, Pelletier points out, doesn't address probation at all.

Gualtieri and Bartlett said police have complete discretion in how they enforce the APAD criteria.

"It's a privilege, not a right," Bartlett said, adding that the sheriff "is the gatekeeper and it's as simple as that. It's their decision."

During a recent meeting, APAD stakeholders discussed expanding the criteria after statistics showed that 62 percent of people who were screened weren't accepted. Most were denied because they had a recent misdemeanor conviction.

But for now, the program won't change.

"We've got it right," Gualtieri said. "We've got the right people in it and we're not giving people bites at the apple who shouldn't get it."

Times senior news researcher Caryn Baird contributed to this report. Contact Laura C. Morel at Follow @lauracmorel.


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