TAMPA — It may not be as early as she hoped, but notorious former teacher Debra Lafave may soon end her probation for having sex with a 14-year-old student.
The state Supreme Court Thursday ruled in favor of the ex-teacher in her bid to cut her sentence short.
The high court's decision on a dry, technical point caps a years-long tabloid-worthy saga that gained national attention and even inspired a satirical novel. The issue that turned out to be the key to Lafave's return to unsupervised life centered on whether or not the prosecution had a right to appeal a judge's ruling ending her probation early.
The Florida Supreme Court's answer: No.
The Supreme Court's 19-page interpretation of arcane legal points was a far cry from the days when defense lawyer John Fitzgibbons sent the media into a tizzy by saying of his client shouldn't go to prison: “To place Debbie into a Florida state women's penitentiary, to place an attractive young woman in that kind of hellhole, is like putting a piece of raw meat in with the lions.”
That provoked headline writers to declare Fitzgibbons had claimed Lafave was too pretty for prison.
And in the end, she never did have to serve a prison sentence; she pleaded guilty and struck a deal for home detention and probation after the victim's parents prevailed on prosecutors not to make him testify at a trial.
As part of the deal, the defendant agreed not to seek an early end to her probation.
But Lafave did ask a judge to end her probation four years early, and Circuit Judge Wayne Timmerman granted her request.
The prosecution successfully appealed to the 2nd District Court of Appeal, which put Lafave back on probation.
Thursday, the state Supreme Court said the appellate court shouldn't have acted. And so Timmerman's order stands and Lafave is now likely to end her probation within a few weeks.
Mark Cox, spokesman for the Hillsborough State Attorney's Office, said Thursday that prosecutors are “disappointed in the ruling. We felt that our argument was valid in that a deal is a deal, but we respect the decision of the court and we'll move forward.”
Lafave, 34, who has remarried and now has 3-year-old twins, is “very excited” about the ruling, said the lawyer who argued the Supreme Court case, Julius Joseph Aulisio.
Fitzgibbons said Lafave is “very thankful that the case has finally, finally, finally come to an end.”
These days, Fitzgibbons said, Lafave is “pretty much a mom. The twins are keeping her pretty busy. She's really devoting her life to the two kids.”
The former Greco Middle School English teacher was arrested in June 2004 after a 14-year-old boy's mother called police to report Lafave was having sex with him. Lafave pleaded guilty in 2005 under a deal that called for her to serve three years of house arrest, then seven years of probation. After completing the first two years of house arrest, she was allowed to serve the rest of her term on probation. If she had been convicted, she could have been sentenced to up to 30 years in prison.
Lafave was released from house arrest in July 2008, and was scheduled to serve probation until Nov. 21, 2015. Then, in September 2011, Timmerman, who has since retired, granted the defense motion to release Lafave from probation early even though her plea agreement said the defendant “will not be allowed early termination of probation.”
Ruling on the prosecution's appeal, the 2nd DCA said Timmerman's order was “an abuse of judicial power resulting in a gross miscarriage of justice.”
But even so, the appellate court also said it was unsure whether the prosecution had a right to ask it to rule. The court asked the state Supreme Court to address the question of whether the prosecution was permitted to ask for appellate review of such a decision.
The 2nd DCA certified that the question was “of great public importance.”
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 Florida Supreme Court said Thursday that the appellate court should not have taken the appeal.
“Although we recognize the perceived inequality that the Second District sought to remedy, the district court lacked jurisdiction to grant the state's petition for writ of certiorari where the trial court's order is a final order and where the state has no statutory right to appeal the order,” says the 5-2 decision written by Justice Peggy Quince.
Justice Charles Canady wrote a dissent saying Timmerman's order “illegally curtailed the sanction imposed under the plea agreement” and should be treated as a sentencing order, which can be appealed. Justice Ricky Polston concurred with Canady's dissent.
Aulisio said the Supreme Court decision probably won't have repercussions beyond Lafave because the technical situation is “pretty rare.”
“The long-standing, the rule has been that you can't take final orders to the appellate court by way of petitions for certiorari,” he said.
But although the Supreme Court has the final word, Lafave's probation isn't over just yet. First, there is a 15-day period during which the prosecution could ask for a rehearing. Then the high court has to issue an order to the lower court - known as a mandate. The lower court will then go through the process of officially ending the probationary term.
When it's all done, Aulisio estimated Lafave will have successfully cut about two years off her original probation sentence.