Judge, You Can’t Do That!

By Monte E. Hester, October 2016

Absolute power corrupts absolutely.  In State v. Button (11/25/14 Div. II), a routine embezzlement case, ends with a unique sentence condition.  Button entered a guilty plea to first degree theft for embezzling funds from a high school booster club.  The court sentenced her to two months in jail and then imposed an additional condition to “send a message to the community.”  The court ordered Ms. Button to hold a sign for forty hours at an intersection, two hours a day twice a day for ten consecutive days.  The sign read “I stole from kids. Charlotte Button.”  Ms. Button served her jail time, but didn’t comply with the sign holding condition, which she appealed.  Her attorney abandoned the appeal after the condition was not enforced as the prosecutor indicated that “he wasn’t going to do anything about it."

Not impressed with the prosecutor’s inaction, the trial court, on its own motion, issued an order requiring Button to show cause why she should not be punished for failing to display the sign as ordered.  At the hearing, the State and defense agreed that the condition was improper and unenforceable, but the Judge found nothing improper about the sign holding condition and ordered Button to serve an additional sixty days for ignoring his order and once again ordered her to display the sign or face additional time.  Button served the additional jail time, but then appealed the sign waiving condition.

Division II properly noted that the trial court’s sentencing authority is limited by statute.  The Court focused on the difference between crime related prohibitions and affirmative conditions, such as participating in chemical dependency programs or sex offender treatment.  The Court found that the statute that set forth affirmative conditions did not apply to Ms. Button as no SRA provision independently authorized the sign holding condition the Court imposed.

Fortunately, cases like Button are aberrations, but, as sometimes occurs, judges believe that they are somehow above the law as opposed to being stewards of the law.  Always be diligent in representing your clients, and always scrutinize sentence conditions that appear to be novel.