Collier County, Florida (News-Press) -- Marcelino Gonzalez should have finished his 15-year cocaine trafficking sentence years ago.
Instead,a 1996 jail mistake led to his premature release, and he spent 13 yearsa free man. Now Gonzalez, who is finally behind bars to finish hissentence, is petitioning the state over the error.
Gonzalez,now 68, was arrested in Collier County after deputies discovered twobricks of cocaine in his trunk during a 1989 traffic stop. After failingto appear in court at least once, he was sentenced to 15 years inprison for the charge in 1996. He was then sent to Hillsborough Countyto answer for an unrelated charge of failing to redeliver a hiredvehicle. Instead of sending Gonzalez back to Collier to begin histrafficking sentence, Hillsborough accidentally let him go free.
Gonzalezmoved to New York City, where he worked as a stockman at Macy's inHerald Square. He is not listed as an offender in the New York stateDepartment of Corrections database. It was 13 years before Florida lawenforcement and the courts figured out the mistake, tracked him down andput him back behind bars in 2009.
Ina petition filed in federal court last month, Gonzalez, who has nolawyer, claims he should have been released several years ago. Hedeserves credit for the 13 years he was free, because his erroneousrelease was not his fault, he said.
"Duringthis period of time, I never knew there was an error," Gonzalez wroteThe News-Press from prison in Spanish, "and for that reason I alwaysworked with my Social Security number, never was afraid of beingarrested - and I also did my taxes all those years, which demonstratesmy honesty."
Aninmate released in error is entitled to credit for time spent free ifthe release was not the inmate's fault, and the inmate could notreasonably have known his or her release was in error, according toFlorida Administrative Code.
In1991, a Daytona Beach district court of appeal upheld a claim similarto Gonzalez's. The court ruled a prisoner mistakenly sentenced to 30months instead of 30 years should get credit from the time he wasaccidentally freed until the time the mistake was caught and he wasincarcerated.
Gonzalez, who is Colombian, says he spoke almost no English when hewas sentenced in 1996. He was concerned there was a mistake when he wasreleased, as fellow Spanish-speaking inmates informed him of theseriousness of a cocaine trafficking charge. Gonzalez says he also askedthe deputies releasing him if he was done with his sentence, but thelanguage barrier prevented them from communicating.
Gonzalezalleges he then contacted the Florida Department of Corrections andasked a Spanish-speaking representative if he was done with hissentence. The representative said DOC had no record of his sentence, asGonzalez was never transported from county jail to state prison.
Thisis not the first time Gonzalez has tried to receive credit for the timehe was free. In 2010, he filed a motion to correct an illegal sentencewith the Collier County Circuit Court. A year later, the court deniedthe motion, which was hand-written and filed from prison without mentionof 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 orshould have known his release was in error.
"I'veknocked on many doors to resolve my problem," Gonzalez, who has a son,four grandchildren and a 71-year-old wife, wrote in Spanish. "But withbad 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.
"Mygut 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 awayyour sentence."
Cpl.Howard Lindsey with the Hillsborough County Sheriff's Office saidthere's no way to know how Gonzalez was mistakenly released. Thesheriff's office destroys records after 10 years, he said. There shouldhave been a hold in his file, requesting he be detained and transportedto Collier County after he finished his time in Hillsborough.
Inmates also pass through several levels of checks before they arereleased, such as fingerprint and photo identification and a series ofquestions, to prevent mistakes. But every now and then, an inmate slipsthrough the cracks, Lindsey said. Usually the inmate is back in jailwithin a few hours.
"In a perfect world, we'll never have any issues," Lindsey said. "Accidents happen. Things get overlooked."
Amemo sent from Hillsborough County Jail to the Collier County Sheriff'sOffice in 1996 said no hold was placed on Gonzalez because no holdpaperwork arrived at the jail with him.
Hillsboroughstaff realized the mistake and notified Collier about two weeks afterGonzalez's release. But it took a year and a half for the Collier CountySheriff's Office to notify the state attorney's office and secure a newwarrant for Gonzalez's arrest.
"Ihave not asked about the time delay between notification byHillsborough County in June of '96 and the memo of October 1997,"Assistant State Attorney Michael Provost said in a 1997 memo to aCollier County circuit judge.
The Collier County Sheriff's Office could not immediately provide an explanation for the time gap.
Itwas 2009 - another 12 years after the warrant was issued - before lawenforcement finally found and arrested Gonzalez in New York.
Gonzalezis now in Liberty Correctional Institution in Bristol. He is scheduledfor release in March, according to the Florida Department ofCorrections. His sentence was cut from 15 to five years because of goodbehavior and time served prior to his sentencing, according to DOCspokeswoman Ann Howard.