Collier County, Florida (News-Press) -- Marcelino Gonzalez should have finished his 15-year cocaine trafficking sentence years ago.
a 1996 jail mistake led to his premature release, and he spent 13 years
a free man. Now Gonzalez, who is finally behind bars to finish his
sentence, is petitioning the state over the error.
now 68, was arrested in Collier County after deputies discovered two
bricks of cocaine in his trunk during a 1989 traffic stop. After failing
to appear in court at least once, he was sentenced to 15 years in
prison for the charge in 1996. He was then sent to Hillsborough County
to answer for an unrelated charge of failing to redeliver a hired
vehicle. Instead of sending Gonzalez back to Collier to begin his
trafficking sentence, Hillsborough accidentally let him go free.
moved to New York City, where he worked as a stockman at Macy's in
Herald Square. He is not listed as an offender in the New York state
Department of Corrections database. It was 13 years before Florida law
enforcement and the courts figured out the mistake, tracked him down and
put him back behind bars in 2009.
a petition filed in federal court last month, Gonzalez, who has no
lawyer, claims he should have been released several years ago. He
deserves credit for the 13 years he was free, because his erroneous
release was not his fault, he said.
this period of time, I never knew there was an error," Gonzalez wrote
The News-Press from prison in Spanish, "and for that reason I always
worked with my Social Security number, never was afraid of being
arrested - and I also did my taxes all those years, which demonstrates
inmate released in error is entitled to credit for time spent free if
the release was not the inmate's fault, and the inmate could not
reasonably have known his or her release was in error, according to
Florida Administrative Code.
1991, a Daytona Beach district court of appeal upheld a claim similar
to Gonzalez's. The court ruled a prisoner mistakenly sentenced to 30
months instead of 30 years should get credit from the time he was
accidentally freed until the time the mistake was caught and he was
Gonzalez, who is Colombian, says he spoke almost no English when he
was sentenced in 1996. He was concerned there was a mistake when he was
released, as fellow Spanish-speaking inmates informed him of the
seriousness of a cocaine trafficking charge. Gonzalez says he also asked
the deputies releasing him if he was done with his sentence, but the
language barrier prevented them from communicating.
alleges he then contacted the Florida Department of Corrections and
asked a Spanish-speaking representative if he was done with his
sentence. The representative said DOC had no record of his sentence, as
Gonzalez was never transported from county jail to state prison.
is not the first time Gonzalez has tried to receive credit for the time
he was free. In 2010, he filed a motion to correct an illegal sentence
with the Collier County Circuit Court. A year later, the court denied
the motion, which was hand-written and filed from prison without mention
of a lawyer. The denial stated DOC has authority to reduce a sentence,
not the court, and a defendant is not entitled to credit when he knew or
should have known his release was in error.
knocked on many doors to resolve my problem," Gonzalez, who has a son,
four grandchildren and a 71-year-old wife, wrote in Spanish. "But with
bad luck, no person or entity has been interested."
Gonzalez said his wife had to leave their Brooklyn apartment because she could not afford the rent.
Miguel Fernandez III, a Fort Myers attorney, said he's never heard of a case like Gonzalez's, but it seems ridiculous.
gut tells me that if you have not paid your debt to society," he said,
"the mere fact that you were released incorrectly should not wipe away
Howard Lindsey with the Hillsborough County Sheriff's Office said
there's no way to know how Gonzalez was mistakenly released. The
sheriff's office destroys records after 10 years, he said. There should
have been a hold in his file, requesting he be detained and transported
to Collier County after he finished his time in Hillsborough.
Inmates also pass through several levels of checks before they are
released, such as fingerprint and photo identification and a series of
questions, to prevent mistakes. But every now and then, an inmate slips
through the cracks, Lindsey said. Usually the inmate is back in jail
within a few hours.
"In a perfect world, we'll never have any issues," Lindsey said. "Accidents happen. Things get overlooked."
memo sent from Hillsborough County Jail to the Collier County Sheriff's
Office in 1996 said no hold was placed on Gonzalez because no hold
paperwork arrived at the jail with him.
staff realized the mistake and notified Collier about two weeks after
Gonzalez's release. But it took a year and a half for the Collier County
Sheriff's Office to notify the state attorney's office and secure a new
warrant for Gonzalez's arrest.
have not asked about the time delay between notification by
Hillsborough County in June of '96 and the memo of October 1997,"
Assistant State Attorney Michael Provost said in a 1997 memo to a
Collier County circuit judge.
The Collier County Sheriff's Office could not immediately provide an explanation for the time gap.
was 2009 - another 12 years after the warrant was issued - before law
enforcement finally found and arrested Gonzalez in New York.
is now in Liberty Correctional Institution in Bristol. He is scheduled
for release in March, according to the Florida Department of
Corrections. His sentence was cut from 15 to five years because of good
behavior and time served prior to his sentencing, according to DOC
spokeswoman Ann Howard.