JUSTICE WITHHELD - PART 3

A Second Chance Turns Into Many

Withholds Of Adjudication Are Intended To Help First-Time Lawbreakers
Avoid Convictions, But Thousands Of Offenders In Florida Have Received
More Than One.

Even though it's intended to be a one-time break, thousands of Florida
criminals get adjudication withheld again and again - their
convictions wiped clean two, three, four, even five times, a Herald
investigation has found.

Given a free pass on their first crime, many end up breaking the law
again while piling up more withholds. The Herald found more than
67,000 new crimes committed by offenders who had their first
conviction forgiven.

A withhold of adjudication is supposed to be used sparingly: for
first-time defendants whose mistakes probably won't be repeated.

But for some, the breaks just keep coming. A Herald computer analysis
of Florida felony cases between 1993 and 2002 found early 17,000
defendants who got the pass more than once - some as many as five times.

The law has benefited:

* Andrew Saggese, 62, a Broward real estate agent caught red-handed
four times breaking into Jeeps. He once broke into a Jeep while
awaiting trial for breaking into another Jeep. He got four withholds
in two years for Jeep break-ins. His record: no felony
convictions.

* Darrell Clark, 46, busted five times on cocaine charges. The court
pushed rehab after his three possession arrests. But then Clark
graduated to drug dealing. Caught twice selling crack to undercover
cops police, Clark worked the system again. Grand total: Five
withholds in five years.

* Robert DelCastillo, 32, social worker, identity thief. Police say he
got nine credit cards using other people's identities to charge
$11,000. Withhold No. 1. He used a stolen credit card to finance his
next shopping spree. Withhold No. 2. He stalked and threatened an ex-
girlfriend. Withhold No. 3.

* Luis Morales, 30, pilot. He had already been busted on a stolen
property charge when he ran a stop sign in Broward. Police found
cocaine in his car seat. Morales got withholds for both cases, leaving
his flying license unimperiled. Two weeks later, he piloted an
overloaded charter plane that crashed in the Bahamas, killing himself,
R&B singer Aaliyah and eight others. Investigators found traces of
cocaine in his bloodstream.

Prosecutors, judges and defense attorneys agree that a withhold is
supposed to be a one-time break.

''You're supposed to get that once, one bite at the apple,'' said Ed
Griffith, spokesman for the Miami-Dade state attorney's office.

''Withholds are not something you hand out randomly all the time,''
said retired Miami-Dade Circuit Judge Gerald Wetherington, who now
teachers law and ethics.

''It's like the carrot on the stick: generally, a one-time reward to
keep someone honest.''

Yet, the percentage of felony offenders who have landed more than one
withhold has quadrupled during the past decade.

Ten years ago, only 2 percent of withholds went to people who had
already received the break once before. In 2002, nearly 10 percent of
withholds went to people who had already gotten one.

And the crimes they committed were serious:

* 2,700 thieves got multiple withholds.

* 1,400 burglars got multiple withholds.

* 1,200 drug dealers got multiple withholds.

Lemon Benton, 24, is a double winner. He got a withhold in July 1997
after he and an accomplice robbed a lawn man and stole his jewelry.

Benton pleaded no contest. A judge put him on house
arrest.

Three months later, police say, Benton pulled a gun on another man,
stole $50, a gold chain, then tried to take an officer's pistol. A
jury convicted him. The judge sentenced him to life in prison as a
habitual felony offender.

But his first withhold came back to save him.

The Third District Court of Appeal ruled that the 1997 withhold and
house arrest could not be counted as a conviction.

His life sentence got cut to 11 years.

Defense attorneys acknowledge that getting withholds can help repeat
offenders avoid Florida's three-strikes-go-to-prison laws.

''It's a very important break,'' said Carlos Martinez, a chief
assistant public defender in Miami-Dade. ''It can help spare someone
from a life sentence.''

Said Miami-Dade police Capt. Ricardo Gomez: ''It's a way to get around
some habitual offender statutes. You got guys on the streets with
three, four, five withholds when they should be locked away.''

MOVING CASES

Plea deal sometimes used as 'matter of convenience'

But with the growth in criminal cases in Florida, lawyers say the
courts depend on withholds as another tool to move cases.

''You can spot weak cases and sell a withhold as a matter of
convenience,'' said Theodore ''Ted'' Mastos, a Miami defense attorney
and former circuit judge. ''The defendant won't have a conviction and
you plea-bargain it out.''

Joseph J. Colorusso, 23, of Sunrise got the break, despite committing
three home burglaries. Offenders like him who commit multiple crimes
before getting caught also get their convictions forgiven. Colorusso
burglarized homes over several days, beginning on Halloween 2000. The
police finally caught Colorusso hiding under a bed in a home.

A judge disposed of the cases together, giving Colorusso withholds.
His attorney said it's common practice. The Herald found it happened
more than 80,000 times since 1993.

''It's not unusual if you are resolving multiple cases at once to get
two or three withholds,'' said Joseph Carter, Colorusso's attorney.

A judge later rescinded the withholds after Colorusso violated
probation. He's now serving 18 months in prison after being arrested
for battery on a police officer and obstructing an
investigation.

Most prosecutors, defense lawyers and judges say people should not be
earning so many withholds. But they argue that offenders who
repeatedly get the break are the exception.

''If 95 percent of those people successfully complete probation, and
we never see them again, then we win,'' said Leon County State
Attorney William ''Willie'' Meggs, who is also the vice president of
the Florida Prosecuting Attorneys Association.

In other cases, jurists say, repeat withholds can help someone, like a
drug addict, who needs several breaks to kick the habit.

''If you give him a plea that can make him a useful citizen, then a
withhold is appropriate,'' said Miami-Dade Circuit Judge Stan Blake,
who oversees the criminal division.

PROBATION VIOLATIONS

Withholds can be rescinded, but they aren't always

Defense lawyers note that if their clients violate probation by
commiting another crime, judges can void the withhold and incarcerate
them. But even when some defendants violated probation, The Herald
found judges spared them from a conviction.

DelCastillo, the identity thief, got his first withhold and probation
in March 2001 after Miami-Dade prosecutors charged him with multiple
counts of fraud, forgery and grand theft.

He got his second withhold a month later after police busted him for
forgery, fraud and burglary in Coconut Grove.

He got his third withhold in December 2001 after police charged him
with aggravated stalking and battery.

In all, DelCastillo's Florida criminal record looked like this: three
felony arrests in less than three months, two probation violations, no
convictions.

Even DelCastillo expressed surprise.

''As you can see, my record is pretty extensive,'' he said in an
interview. ''But, technically, I was not a convicted felon. I could
still vote, which was important to me. I was fortunate enough to have
the money for a private attorney, who told me about the
withholds.''

His lucky streak ended in August when police say he stole three blank
checks from a friend and cashed them for $1,000. Miami-Dade Circuit
Judge Rosa Rodriguez sent him to jail for a year.

And she reversed the withholds.