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Ormond Beach Observer Thursday, Sep. 19, 2019 1 month ago

Chief judge says he doesn't have authority to overturn convicted Ormond child abuser's bail release

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In a letter responding to Sheriff Mike Chitwood, Chief Judge Raul Zambrano said he is 'ethically prohibited from commenting on a pending case, or the decisions made by other judges.'
by: Jarleene Almenas News Editor

In response to Volusia County Sheriff Mike Chitwood's request that he overturn the bail release of a 61-year-old Ormond Beach man convicted in child sex abuse case, Chief Judge Raul Zambrano issued a letter stating he doesn't have the authority to overturn the decision.

The man in question is Mark Fugler, a former professor at Embry-Riddle Aeronautical University, who was released from jail on Tuesday, Sept. 17, on a $200,000 bond as he awaits the completion of his appeals. Fugler was arrested by Ormond Beach Police on Nov. 4, 2016, after a 7-year-old girl's mother reported to police that Fugler had made her daughter watch pornographic films with him, and that Fugler had exposed his penis to her daughter. The victim's mother discovered this after finding entries in her daughter's diary.

On Aug. 15, Fugler was convicted of three counts of lewd and lascivious exhibition, three counts of displaying obscene material to a minor and three counts of lewd and lascivious acts with a minor for events that happened over a two-year period between Aug. 19, 2014 to June 20, 2016. He has no other criminal records.

Chitwood held a press conference on Wednesday, Sept. 18, asking residents to write emails to Zambrano and State Attorney R.J. Larizza to overturn the bail decision made by  Senior Judge R. Michael Hutcheson. 

The full letter from Zambrano to Chitwood reads as follows: 

"Dear Sheriff Chitwood: 

I am in receipt of your letter dated September 18, 2019, in which you ask that I “overturn Judge Hutcheson's decision...” in the case of State of Florida v. Mark Fugler. As you may know, the duties associated with the Office of Chief Judge are outlined in the Rules of Judicial Administration and are mostly administrative in nature. Contrary to what many believe, a chief judge does not have the authority to overturn rulings made by other judges. Rather, if a litigant believes that a judge has ruled improperly, he/she may file an appropriate motion and request a hearing before the assigned judge. If that does not achieve the desired result, he/she may seek a remedy before an appellate court. Your request of me would be akin to me asking you to overturn a decision made by a local Chief of Police. 

Furthermore, as a judge, I am ethically prohibited from commenting on a pending case, or the decisions made by other judges. Nevertheless, it is my firm belief that all judges of the Seventh Judicial Circuit Court uphold and interpret the law to the best of their abilities. Of that, I am certain; and Judge Hutcheson is no exception. Judge Hutcheson has faithfully served the citizens of Volusia County and the Seventh Judicial Circuit for over 35 years and has presided over thousands of cases – the overwhelming majority of them criminal. I know that Judge Hutcheson is, and always has been guided by the law itself. If any of the parties in this case believe that Judge Hutcheson has misapplied or misconstrued the law, then they may file a motion and/or appeal his ruling. 

It appears that you may be more upset about the fact that the law allows a convicted individual to be released from incarceration pending an appeal. Such a law has been in existence since at least 1956. It stems from the Florida Supreme Court case of Younghans v. State. The law, in sum allows bail under certain conditions after an individual has been found guilty by a jury and sentenced by the court (see $8 903.13 1-903.133, Florida Statutes). 

A hallmark of our great nation is respect for the rule of law. President John Adams said it best when he said “we are a nation of laws and not of men.” Judges are often called upon to make difficult and sometimes unpopular decisions. Occasionally we make mistakes. I know I have made my share of them. But in every instance, upholding the law was foremost in my mind. I am confident that all of our judges are guided by this same principle. 

Sincerely,

Raul A. Zambrano"

Here is Chitwood's original letter to Zambrano: 

"Dear Judge Zambrano, 

The decision to release Mark Fugler on bond is a gross miscarriage of justice and a slap in the face to our young victim and her family. The impact and devastation caused by Mark Fugler on this family will be felt in their lives forever. It shocks one's conscience to believe that after being convicted of despicable and sickening acts on a child, he was convicted by a jury of his peers and sentenced to 15 years in prison. With the irresponsible stroke of a pen, that verdict was nullified and he was allowed to remain free on bond, pending appeal. This is nothing more than a legal attempt to delay the inevitable. By the time all of Fugler's appeals are exhausted, the new argument will be that he is too old and infirm to serve any jail time. Sadly, it seems that the system is too concerned with Fugler's rights and not concerned enough with the young, innocent victim and her family. The court should be more concerned with restoring the innocence and childhood of our victim. Instead, this ruling further victimizes the family and its child. 

I implore you to correct this wrong, overturn Judge Hutcheson's decision, remand Fugler into custody and restore this family and our community's faith in our criminal justice system. 

Respectfully, 

Mike Chitwood, Sheriff"

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