Pubdate: Sun, 23 Jun 2002
Source: Port St. Lucie Tribune (FL)
Copyright: 2002 The E.W. Scripps Co.
Contact:  http://www.tcpalm.com/tcp/tribune
Details: http://www.mapinc.org/media/2049
Author: Mark Pollio

COURT OVERTURNS 20-YEAR DRUG SENTENCE

FORT PIERCE -- Most criminals would consider themselves lucky for
being found guilty of an attempted crime, rather than a completed crime.

That was not the case for Kevin Dillard, a 23-year-old Miami man
arrested in St. Lucie County and found guilty of attempt to traffic
cocaine. A jury found Dillard guilty of that charge in July of 1999
and he was sentenced to 20 years in prison.

A Florida Highway Patrol trooper stopped the car Dillard was a
passenger in while driving through St. Lucie County on June 21, 1998.
The trooper found cocaine wrapped in Dillard's pocket.

Originally charged with trafficking cocaine, a jury found him guilty
of the lesser crime of attempt to traffic cocaine. Assistant State
Attorney Paul Amos -- who was disappointed by the lesser conviction --
found a way to make up for that at sentencing.

Amos discovered that Dillard had a long list of prior felony
convictions. Under Florida law, Dillard was designated a habitual
offender for the attempted trafficking crime. Oddly though, he could
not be listed as a habitual offender if he had been convicted of
trafficking cocaine -- the more serious crime.

Dillard's 20-year prison sentence was for attempted trafficking as a
habitual offender. Dillard could have received as little as five years
in prison for the higher crime of trafficking cocaine.

"It's an anomaly in the law that I had not seen before," Amos said.
"My entire intention was to sentence him to the fullest extent of the
law and that is what I did."

Fort Pierce attorney Michael Kessler represented Dillard at trial. He
said a defendant should not receive a higher penalty for a lower crime.

"The law does not always make sense," Kessler said. "It's certainly
unfair that he got more punishment for an attempted crime."

Apparently, no court had seen the inconsistency before.

The Fourth District Court of Appeals in West Palm Beach recently
reviewed the case, noting it was a first. The Fourth District issued
an opinion on the case Wednesday that overturned the original sentence.

"There is no rational basis to interpret the statute to lead to the
absurd result that a defendant may be sentenced to a more severe
sentence for an attempt to commit trafficking than for actually
committing the offense," the opinion states.

Amos said the reversal is basically a slap in the face to the Florida
Legislature for writing the law. Dillard's case has been sent back to
St. Lucie County for a new sentencing hearing and Amos said he expects
to remain on the case.

Kessler said the precedent set by the Fourth District's opinion could
affect cases across the state.

"The law has been changed by this opinion," Kessler said. "This could
result in a number of defendants being resentenced."

Although the appeals court set legal precedent by reversing the
sentence, the legislature could still correct the law.

"I think it's fair to say that everyone did their job in this case,
and it was still reversed," Kessler said.
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