After Probation Violation, Judge Sentences 23-Year-Old to 60 Years in Prison

In October, officers with the Broward Sheriff's Office stopped Herbert Smith because he was driving a car with tinted windows. When an officer checked the 23-year-old's license, it was found to be suspended. A search of the car turned up a magazine filled with bullets. 

For other people, being in possession of ammunition may have been perfectly legal. But in 2012, Smith had been sentenced to two years in prison as a youthful offender after racking up eight felonies and four misdemeanors for theft, trespassing, and burglary. He was released in 2014 but had to complete four years of probation. The terms dictated that he not possess a concealed weapon.

Possessing the ammo counted as violating his probation. Last Tuesday, November 24, there was a sentencing hearing for Smith. 

To determine a sentence for felonies, Florida judges fill out a scoresheet that counts "points" for each felony and factors in other considerations such as a prior criminal record or harm inflicted on a victim. Usually, tallying up the scoresheet will determine a mandatory minimum sentence, but beyond that, judges have wide latitude in deciding the length of a defendant's prison term. 

According to Smith's attorney, Brian Greenwald, Circuit Court Judge Matthew Destry could have been lenient and reinstated Smith's youth offender status and sentenced him to prison for the remainder of his probation.

Instead, Destry added up the points from all his past crimes. The sentencing guidelines suggested Smith spend between 13 and 85 years in prison. Destry ordered 60. Because Florida law requires that inmates serve 85 percent of their sentences, with credit for time already served, the earliest Smith could be released is in 48 years. He'd be 71 years old.

“No one is saying that he is a good kid,” Greenwald says of his client. “But [Judge Destry] still took this kid's entire life away because police found ammunition in the map holder of a car he didn't own.”

New Times has left a message with Destry's judicial assistant for comment about the sentencing. We'll update this post if we hear back.

Last week, Smith's close friend Ratonya Dumas started an online petition to raise awareness about his harsh sentence. She says that Smith is like a son to her and that she was crushed when she heard about the ruling. More than 18,000 people have signed it so far. The petition incorrectly lists a suspended license — not a probation violation — as the reason for Smith's sentence. It calls for Destry to be removed from the bench.

“I've seen murderers and rapists get less harsher [sic] sentences,” Dumas stated. “This judge needs to be removed from the bench because he doesn't have the best interest for people of color.”

Dumas says Smith has had a hard life and was raised by his grandmother since his father was in and out of prison. "He's a sweet kid," she says. "Ever since he got out of prison, he's been trying to get back on the right path, but it's like he was doomed from the start and set up for failure."

Dumas points to Smith's repeated traffic stops since returning from prison. Since January, Smith has been stopped by police at least six times for not wearing a seatbelt, speeding, not coming to a complete stop at a stop sign, and having tinted windows. 

Greenwald isn't ready to make the sentencing about race but says Dumas does have a point. The Broward Public Defender's Office has found suspected instances of race-based policing in the past — like when Fort Lauderdale Police admittedly used a bike registration ordinance as a pretext to stop people in black neighborhoods. In August, public defenders found that cops also use tinted windows (Smith's reason for being pulled over) as a pretext to target black people. An investigator found that blacks are pulled over disproportionately — in Deerfield Beach for instance, the black population is 25 percent, yet black people comprise 55 percent of all tinted-window stops. If Smith had not been stopped for tinted windows, police wouldn't have found the bullets in the car.

This isn't the first time Destry has received complaints. Two years ago, the judge was criticized for Tweeting from the bench. Last December, he was accused of coming in late to work and holding court late into the evenings. In February, Destry's decision to jail former Broward School Board member Stephanie Kraft was overturned. She had been found guilty of official misconduct, but an appeals court ruled that while Destry had the authority to sentence her to jail, he had to provide a reason for doing so. The appeals court called Destry's decision “arbritary and capricious.”

“Destry is known as a very harsh sentencer around the courthouse,” Greenwald says. “But this is ridiculous. Subway's Jared Vogel only got 15 years, and he molested little children."

Despite his client's long rap sheet, Greenwald insists that Smith is a nonviolent offender and has never hurt anyone. In 2012, Smith was charged with armed burglary. “He robbed a car and took the gun,” Greenwald explains. “He didn't bring the gun with him or have any intent to use a weapon.”

Monalisa Weber is a former Broward County probation officer who now runs Probation Station, a local radio talk show that explores the criminal justice system. She says her idea to launch the show started after noticing that most offenders didn’t know their rights or realize that the tiniest infraction while on probation could land them in prison. She was devastated to hear Smith's story.

“Sixty years is crazy,” Weber tells New Times. “I remain neutral on the issue, though. The sentencing is based on a point system. That's why it's so important for the community to educate themselves before they're in this situation.”

Greenwald says he remains optimistic. This week, he plans to file a motion to mitigate the sentencing, which would reduce Smith's punishment. However, it might not be granted. In the meantime, the family is accepting donations toward Smith's legal fees. 
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Jess Swanson is a staff writer at New Times. Born and raised in Miami, she graduated from the University of Miami’s School of Communication and wrote briefly for the student newspaper until realizing her true calling: pissing off fraternity brothers by reporting about their parties on her crime blog. Especially gifted in jumping rope and solving Rubik’s cubes, she also holds the title for longest stint as an unpaid intern in New Times history. She left the Magic City for New York to earn her master’s degree from Columbia University School of Journalism, where she spent a year profiling circumcised men who were trying to regrow their foreskins for a story that ultimately won the John Horgan Award for Critical Science Journalism. Terrified by pizza rats and arctic temperatures, she quickly returned to her natural habitat.
Contact: Jess Swanson