Posted on 03/02/2006 2:48:41 AM PST by JoeSixPack1
STUART — What started months ago as a misunderstanding between a Martin County judge and a state agency turned this week into a full-fledged custody battle.
On one side, a judge stands firm in his belief that a man he sent to prison on a parole violation has served his time.
Florida Department of Corrections officials, however, say they're the ones who decide when a prisoner has served his time. By their estimate, the prisoner owes them another 12 years.
At the center of the argument, Kenneth Gartley, 34, remains at a correctional institution near Tallahassee, waiting for someone, anyone, to decide whether or not he gets to go home.
"He thinks it's ridiculous that he's still there," said Erica McMannus, Gartley's fiancée.
Gartley's case, which an appellate court could rule on as early as Friday, may set a legal precedent on who decides when a criminal has paid his debt to society.
Gartley made headlines as a teenager in the early 1990s when he poured pesticides into his ex-girlfriend's soft drink while he visited her at work. She recovered, but he was tried and convicted of attempted murder.
He was released early from prison in 2000 but was arrested again last year for failing a court-ordered drug test for marijuana that was part of his probation.
Martin Circuit Judge Larry Schack, who also presided over Gartley's original trial, sentenced him on the violation after he had been in prison for about a year. The judge decided that Gartley had learned his lesson, and ordered that he be released with time served.
As far as the Department of Corrections is concerned, the judge's request poses just one problem.
"His sentence isn't over," said Judy Bone, a department attorney.
The focus of their argument rests on gain time, a principle Bone said helps the department both serve as a house of rehabilitation and control its inmates.
When an inmate exhibits good behavior, he or she is awarded days off from their prison sentences. That way, an inmate sentenced to five years in prison, for example, could be released after four years with 365 days gain time. If prisoners violate the rules, one way the prison system can punish them is by taking away their gain time.
Stricter sentencing guidelines in recent years require that prison inmates serve at least 85 percent of their sentences, so prisons are much less generous with gain time than they have been in the past.
"It used to be that prisoners were sometime serving less than half their sentences," said Gartley's attorney, Arthur Brandt. "Judges would sentence people to 30 years in prison knowing they would be out in 15."
In Gartley's case, he was scheduled to serve 22 years in prison for the attempted murder charge, but was out after 10 years because he had been awarded about 12 years of gain time.
When released prisoners violate their parole, both the court judge and the department have the right to revoke their gain time, forcing them to serve out the time they got credit for in the past.
Schack's argument, however, is that he never gave Gartley any credit for gain time.
"The credit ordered in this case was solely for actual time served... there is nothing for the Department of Corrections to forfeit on this sentence," Schack wrote in his order demanding Gartley's release.
Judges and correctional facilities in Florida rarely disagree on inmate punishments, a department official said. In the past 15 years, Bone estimates that it has happened a dozen times.
The rift between the department and Schack grew this week after the agency asked the 4th District Court of Appeal to deny the judge's order demanding Gartley be released immediately.
The push and pull continued Tuesday afternoon when Schack called an emergency afternoon hearing and denied the agency's objection to his order.
The appeals court will decide this week whether to hear the case. If it decides against hearing the case, Bone said the department will obey Schack's orders and release Gartley immediately.
Gartley's family and lawyers said that aside from the occasional missteps that culminated in the failed drug test last year, he has tried to turn his life around since his release from prison almost six years ago.
McMannus, 21, gave birth last month to Gartley's twin son and daughter. She said she visits him in jail often and doesn't think he should still be held accountable for the mistakes he made when he was a teenager.
"That was in his past. He's not like that anymore," she said.
Others, such as assistant state attorney Linda Bach, think the parole violation is a serious matter. Bach thinks the department's position is solid.
"At this point it really seems like an issue for the appellate court to decide," she said.
"That was in his past. He's not like that anymore," she said.
Oy vey. And she's allowed to breed?
LOL
Pack, you incurable romantic.
I just can't help myself! :-)
(Dual meaning)
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