Judge hands down controversial sentence

July 21, 2014

A local judge ordered a former Coconut Grove lawyer to serve six years of probation with the condition that he pay back $700,000 that he allegedly stole from clients. The State of Florida charged Guy Bailey in 2010 with 1^st Degree Grand Theft. The attorney charged in the case was once considered to be one of the top commercial litigation attorneys in Miami and the South Florida area. The charging document alleged that Bailey won a life insurance settlement for a client. The funds were deposited into Bailey's trust account. Checks written to the client bounced and the funds were never paid. The defendant was charged with grand theft in the 1^st degree because the amount exceeded $100,000.

Although the defendant was charged with a criminal offense back in 2010, the case recently went to trial. Bailey took the stand and professed his innocence, however, the jury returned a guilty verdict. The case was prosecuted by the Monroe County State Attorney's Office because the Miami-Dade County State Attorney's Office recused itself as a result of a conflict of interest. Since the jury returned a guilty verdict to the grand theft charge, the defendant was facing 21 months to thirty years in prison under Florida's Criminal Punishment Code.

The prosecutor and victims of the crime requested that the Judge Milton Hirsch sentence the defendant to the bottom of the guidelines or 21 months. The criminal defense lawyer representing Bailey requested that court sentence the defendant to probation with condition of paying restitution. The basis of the argument was that the defendant is 76 years of age and that restitution could not be paid if he was incarcerated. The judge was apparently persuaded by the attorney's arguments. Under Florida law, a judge is required to sentence, at a minimum, a defendant to the lowest permissible sentence calculated using the Criminal Punishment Code Worksheet. Grand theft 1^st degree is a level 7 offense under the offense severity ranking chart which mandates a minimum sentence of 21 months.

Judge Hirsch used a Florida Statute which allows for a downward departure under certain circumstances to avoid sending Bailed to prison for just under two years. The statute provides that a judge may depart below the guidelines if certain mitigating circumstances apply. Mitigating circumstances delineated under the Florida Statute can be applied if:

(1) The defendant was merely an accomplice,

(2) The defendant had diminished capacity to appreciate the criminal conduct committed,

(3) The defendant requires specialized treatment for a mental disorder (not drug related),

(4) There is a need for payment of restitution,

(5) The defendant acted under duress at the time of the crime,

(6) The defendant cooperated with state authorities,

(7) The offense was unsophisticated, or

(8) The age of the defendant allows for the departure.

While the elderly age of the defendant probably played a large role in the decision, the judge is required to issue a written order setting forth the basis for the departure. The judge undoubtedly based the departure on the need for Bailey to pay back his victims. In his order, Judge Hirsch wrote, "If ever a criminal case cried out for restitution in lieu of incarceration, this is the case. Certainly, Mr. Bailey will be in a position to make no restitution from behind prison bars." This case is an example of how an experienced criminal defense lawyer can avoid a jail or prison sentence through a creative use of the Florida sentencing statutes even if a defendant was convicted by jury.

Miami Lawyer Convicted of Looting Trust Fund Avoids Prison Time in Judge's Controversial Decision, Insurancenewsnet.com, July 21, 2014.

http://www.miamiherald.com/news/local/community/miami-dade/article1976012.html