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Ormond Beach Observer Thursday, Oct. 31, 2019 1 month ago

Legislation filed to keep sex offenders from being released on bail while they appeal their convictions

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The legislation is a response to the Volusia County case of Mark Fugler, who was released on bail after being convicted of exposing himself to a young girl.
by: Jonathan Simmons News Editor

Mark Fugler is supposed to spend 15 years in prison. He was charged with exposing himself to a young girl and showing her pornographic videos. He was tried, convicted, sentenced. And then, just a month later, a judge let him out — on bail, while he filed an appeal. 

The decision generated outrage and opposition from the victim’s family and from community members, including Volusia County Sheriff Mike Chitwood, who wrote to the circuit’s Chief Judge Raul Zambrano to ask him to overturn Senior Judge Michael Hutcheson’s decision to allow bail for Fugler, an Ormond Beach resident and former Embry-Riddle Aeronautical University professor.

"There is just something fundamentally wrong with releasing a convicted sex offender into a neighborhood where he found his victim a little over a mile away."

— REP. TOM LEEK

Zambrano couldn’t do that: The law doesn’t allow it. But soon, the law might not allow someone like Fugler to be released to begin with: Florida Rep. Tom Leek, whose district includes part of Volusia County, has filed legislation in the house to close the legal loophole that allowed Hutcheson to grant Fugler’s request for a release on bail.

“We already have in place a list of offenses for which you cannot get released on appeal after conviction,” Leek said. “So that already exists, and on the list of offenses would be other violent crimes … and things that are not violent,” including certain drug-related offenses — but not lewd and lascivious exhibition to a minor or displaying obscene material to a minor, neither of which are first-degree felonies.

“The type of offense that Mark Fugler committed should be on there,” Leek said. 

Chitwood voiced support for the proposed bill.

With Fugler, Chitwood said, “Here’s a guy who was sentenced unanimously by a jury of his peers — they even made the little girl get up there on the stand to testify — and the mother is shopping in the Publix, and who’s in the next checkout line?”

Mark Fugler. 

It was only luck, Chitwood added, that the mother had not had her daughter with her at the time.

Chitwood has seen other instances of people being released on bail pending an appeal, but none for cases so serious. 

“Fugler is a first for me,” he said. “I’ve seen it happen on credit card fraud ... embezzlement cases; I’ve never seen it happen on a case as egregious as this, where a little girl’s innocence was stolen.”

THE LAW

Not all states allow bail after conviction, while a prisoner is filing their appeal, and of those that do, the nature of the offense that are bailable varies.

"I think our job in public service is to protect the weakest members of society, whether they’re the youngest or the oldest."

— MIKE CHITWOOD, Volusia County sheriff

Connecticut allows it, but specifies a number of scenarios in which it can not apply, including “any offense involving the use, attempted use or threatened use of physical force against another person.”

Louisiana allows it for offenses where the sentence would be five years or less, and adds that it can also be imposed in cases in which the actual sentence ends up exceeding five years, “except when the court has reason to believe, based on competent evidence, that the release of the person convicted will pose a danger to any other person or the community, or that there is a substantial risk that the person convicted might flee.”

In Texas, bail is not allowed for defendants convicted of felonies where the punishment is equal to or greater than 10 years of confinement.

THE BILL

Leek’s bill is narrowly tailored to the kind of situation that occurred in the Fugler case.

It adds to the existing statutory language, specifying that, in addition to the existing instances in which a person may not be released on bail after an adjudication of guilt, a person may not be released for a post-trial motion or appeal for “Any other offense requiring sexual offender registration under s. 943.0435(1)(h) or sexual predator registration under s. 775.21(4), when at the time of the offense, the offender was 18 years of age or older and the victim was a minor.”

Might there be other cases, not involving minors, that should also be added?

“It was hard for me to say that these other offenses don’t warrant the same type of treatment, and we can go back and add those things at a later date,” Leek said. “But what I know right now is what’s in front of me. ...  There is just something fundamentally wrong with releasing a convicted sex offender into a neighborhood where he found his victim a little over a mile away.”

Shortly after hearing about Hutcheson’s release through the news, Leek had started hearing from constituents who objected, he said.

"I personally think that people that have been convicted of a crime should immediately start serving their sentence. And if they’re going to appeal, then that appeal can be done while they’re sitting in jail."

— RICK STALY, Flagler County sheriff

“I started to get phone calls from some folks saying, ‘This doesn’t seem right; is there something that you can do about it?’” Leek said.

He also met with the victim’s family.

“It just became evident that this is a hole in the statute that we can fix relatively easily … to make sure someone who’s been convicted of a sex offense isn’t released into the neighborhood, he said.

He added that the current language of the bill is a starting point, and may change as he seeks out the thoughts of prosecutors, attorneys and victims.

“We will take all that information in,” he said, so that the wording of the proposed law will be appropriate, Leek said.

Florida Sen. Tom Wright, whose district includes part of Volusia County and part of Brevard County, is filing a companion bill in the Senate, Leek said.

BALANCING ACT

In Flagler County, Sheriff Rick Staly said he’d backed Chitwood’s decision to speak out against Hutcheson’s decision to allow bail in the Fugler case.

“I would have done the same thing had it occurred in this county,” Staly said. “Sometimes you have to use the power and the influence of your office to call out perceived injustices. That appeared to be the case as I’m aware of here. ... I’m glad that the judge revoked his decision.” 

He can’t remember any cases similar to the Fugler one — in which someone was convicted of a serious crime and then released pending appeal — occurring in Flagler.

But, he said, “I’ve seen some low bonds while people are pre-trial that kind of raise an eyebrow. ... At least now, when they’re re-arrested, they are generally held on no bond. ... And I understand there’s a balancing act. They haven’t been found guilty at that point, and there’s plenty of case law that a bond is not supposed to be punishment, and the constitution and court of law allows a person to be eligible.” 

As far as releases pending an appeal, he said, “From my experience, it is rare that a conviction is overturned, although it does occasionally happen. So I personally think that people that have been convicted of a crime should immediately start serving their sentence. And if they’re going to appeal, then that appeal can be done while they’re sitting in jail.”

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