Family and friends were shocked. They posted a petition online about Smith’s case, calling for Broward Judge Matthew Destry to be removed from the bench. More than 20,000 people signed it.
Then in a last-ditch status hearing Thursday afternoon, Destry shocked everyone again: He let Smith go home on a 15-year probation. He was released last night.
“He had a change of heart and gave Herb his life back,” Smith’s attorney Brian Greenwald said. “To go from a 60-year sentence to 15 years probation is a huge difference.”
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.
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. Despite his client's long rap sheet, Greenwald insists that Smith is a nonviolent offender and has never hurt anyone.
To determine a sentence for felonies, Florida judges fill out a score sheet 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 Greenwald, after Smith broke his probation, 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.
“Destry is known as a very harsh sentencer around the courthouse,” Greenwald says.
Thursday, though, Smith had a status hearing at the Broward Courthouse. Greenwald had filed a Motion for Reconsideration and/or Mitigation of Sentence. “The imposition of a 60-year sentence is more than 450 percent greater than the recommendations of both the State and the Criminal Punishment Code guidelines,” the document states. "The Defendant had no opportunity to have his family and friends present to provide testimony to the Court regarding sentencing."
Thursday afternoon the court was filled with Smith’s friends, family, and community members who spoke on Smith’s behalf, declaring they would help him “stay on the right path.” Greenwald also hoped that the online outrage and media attention might make Destry reconsider.
“When Destry read the sentence, it took everyone a minute to realize what he had just said,” Greenwald says. “We were expecting 13 years or something. It took a minute to register that Herb was going home.”
Greenwald says Smith was speechless. Although, Greenwald warns, if Smith breaks probation again the 60-year sentence still looms over his head.
“Destry gave Herb this golden opportunity to do the right thing,” Greenwald says. "This time, I hope he will."