Florida judge ends surprise-conviction practice

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ORLANDO, Fla. (AP) – A University of Central Florida police officer found a small amount of marijuana in a car last year, and he gave passenger Jared Boler the typical paperwork: a notice to appear in court that resembled a traffic ticket. It gave the 19-year-old engineering student two choices: simply pay a fine at the clerk of court’s office or contest it by appearing in court. Boler didn’t want his parents to find out, so he paid the $428 even though he refused to acknowledge that the marijuana was his, according to his attorney.

Boler thought that was the end of it. But almost a year later, his application for an apartment was rejected, and it was only then that Boler discovered he had a conviction for the case on his record.

In a typical month, the judicial circuit that covers the Orlando area has at least four dozen of these cases, in which defendants with misdemeanor charges pay fines and can end up with convictions without their realizing it. A majority of the charges are for underage drinking or possessing small amounts of marijuana. Experts say they know of no other place where such a practice occurs in criminal cases, and several defense attorneys say it’s unconstitutional because it sidesteps defendants’ rights to an attorney and to due process in open court.

Now, after three decades in place, the surprise-conviction practice is ending. On Monday, the chief judge for the court reversed course and said he would stop the procedure, one week after The Associated Press questioned him about it.

“We don’t want to trick someone into entering a plea for a crime,” said Frederick Lauten, chief judge of Florida’s Ninth Judicial Circuit Court.

Last year, he appointed a committee to look into the practice, which was established by a different chief judge. The committee determined that the procedure complied with the rules of Florida criminal procedure.

But on Monday, Lauten said he would issue an order ending the practice within six weeks. All misdemeanor defendants will then have to show up in court before a judge.

Florida criminal procedure, as well as U.S. constitutional law, guarantees a defendant’s right to an attorney, even if the defendant can’t afford one. Florida criminal procedure also says that no plea should be accepted without a hearing in open court where a judge can determine that the plea is being entered voluntarily and is in the defendant’s best interest.

None of that happens when a suspect pays a fine to the clerk of court, according to a challenge Boler filed after learning of his conviction.

“It fools him into thinking he isn’t involved in a criminal proceeding. … But you get a record with a conviction,” said his attorney, Donald Lykkebak. He said Boler didn’t want to talk about his case, preferring to put it behind him. Prosecutors dropped the charge earlier this month, after Boler had hired Lykkebak and had a chance to appear before a judge.

Had Boler gone to court in the first place, he would have learned about a pretrial diversion program that allows charges to be dismissed if successfully completed, or an attorney could have found grounds to challenge the police stop, Lykkebak said.

Criminal justice experts contacted by The AP at law schools at Yale University, University of Pennsylvania, New York University, George Washington University and Yeshiva University said they knew of no other place using this practice in criminal cases. Other jurisdictions give civil citations for possessing small amounts of marijuana but don’t leave a criminal charge on the record.

For someone who chooses to pay the fine in the Florida cases, the court record lists the charge and shows the disposition as “adjudication withheld.”

That can affect job or housing prospects for someone like Boler, or it can be considered an aggravating circumstance if the defendant faces sentencing in another case.

“The real action is around the cascading number of consequences that come out automatically … if you have a conviction. Housing, financial,” said Issa Kohler-Hausmann, an associate professor at Yale Law School. “It sounds like they’re making the process seem like what you’re getting yourself into is a traffic ticket.”

Chase Zahalka, 19, chose to pay a $328 fine instead of going to court after he was caught drinking near the UCF campus last December. When he enlisted in the Army a short time later, he told his recruiter about it pre-emptively because he was certain it would haunt him in a background check.

“I had to tell them about it, so they wouldn’t think I was lying about it,” said Zahalka, who was accepted into the Army.

Lauten, the chief judge, said he decided to change the procedure after doing research and learning that the practice made his circuit unique. He said he pondered the long-term consequences for young adults who may lose opportunities because of offenses on their records.

“We want to make sure they make fully informed, intelligent decisions,” Lauten said. “Our concern is right now they may be pleading without understanding the consequences.”

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