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Crime & Courts

Oral arguments heard in Lafave probation case

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Published:   |   Updated: September 16, 2013 at 02:11 PM

Tampa’s most sensational teacher student sex case became grist for Florida’s highest court Monday morning as Justices heard arguments from lawyers over whether Debra Lafave should have been allowed to end her probation sentence early.

But the arguments centered not on lurid details, but on arcane legal analysis over whether the prosecution should be allowed to appeal a Circuit Court judge’s ruling that ended Lafave’s probation in 2011.

The notorious former teacher whose good looks made her a national story when she pleaded guilty to molesting a middle school student was released early from probation over objections from the prosecution on the grounds Lafave’s plea agreement stated that she “will not be allowed early termination of probation.”

Appearing before the state Supreme Court Monday, Lafave’s new lawyer, Julius J. Aulisio, argued that the provision didn’t prevent Lafave from asking for an early termination because it didn’t explicitly say she couldn’t ask for it.

While justices seemed skeptical about that argument, they did wrestle with whether the prosecution is allowed to appeal the judge’s order that terminated Lafave’s probation.

The 2nd District Court of Appeal ruled last year that the early release by Circuit Judge Wayne S. Timmerman was “an abuse of judicial power resulting in a gross miscarriage of justice.”

Without a plea agreement, Lafave would have faced 15 years in prison if convicted on the same charges: two counts of lewd and lascivious battery. In exchange for the probation sentence, Lafave had agreed not to seek an early termination of her probation.

Now the mother of twins, Lafave, who had taught at Greco Middle School, was sentenced in 2005 to three years of home confinement, followed by seven years of probation for having sex with the 14-year-old boy. Lafave was arrested in 2004 after the victim’s mother called police

Lafave had four years and two months to go on her original probation when she was released in September 2011 after her lawyer, John Fitzgibbons, asserted she met all the requirements of probation. After the appellate court ruled in August 2012, Lafave was placed back on probation.

In ruling for the prosecution last year, the appellate court signaled it was on uncertain legal grounds, unsure it had the authority to overturn Timmerman’s decision. It asked the state Supreme Court to address the question of whether the prosecution had the right to ask for appellate review of such a decision.

The appellate court noted that neither the law nor court rules give prosecutors the right to appeal an order granting an early termination of probation. But it took up the issue using another legal device known as a writ of certiorari. This is a procedure in which a party can ask a higher court to review the actions of a lower court.

The appellate court held that Timmerman’s ruling was “a rare, post-sentencing order which ... constitutes a violation of the plea agreement between Lafave and the state.”

Aulisio, Lafave’s lawyer, argued that the probation term was not actually a sentence, but a decision by the court to withhold sentence and retain jurisdiction over the case. This, Aulisio said, could not be appealed by the state.

But Assistant Attorney General Cerese C. Taylor that it was a “miscarriage of justice” for the court to disregard the terms of the plea agreement. “It is not in our best interests to allow someone on sexual offender probation off early.”

esilvestrini@tampatrib.com

813-259-7837

Twitter: @ElaineTBO

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