A three-judge panel of the Fifth District Court of Appeal today unanimously upheld the guilty conviction of Kimberle Weeks, the former Flagler County Supervisor of Elections, on four counts, throwing out four others on double-jeopardy grounds.
The appeal court ordered the circuit court to re-sentence Weeks on the four counts. The excision of the four other counts doesn’t materially change three essential aspects of the case: the appeal court affirmed that Weeks is a felon four times over. Weeks will have to serve a month in jail and up to 18 months’ probation. And she will lose the state pension she accrued while supervisor.
The judgment is a severe blow against Weeks, who had contended all along that she would ultimately prevail. It was a victory for the State Attorney’s Office, particularly Assistant State Attorney Jason Lewis, who had aggressively prosecuted Weeks as a crude, arrogant official who had abused her position and flouted the law, insulting other people in office while ironically casting herself as an anti-corruption crusader.
“We conclude that double jeopardy principles preclude convictions on four counts of unlawful interception of wire communications, but otherwise we affirm,” the opinion states.
“I’m glad it’s done and we’ve moved past it,” Lewis said today.
A jury convicted Weeks on seven counts and Weeks pleaded guilty on an eighth count. Seven of the counts regarded illegally recorded conversation. The eight regarded Weeks illegally transmitting an illegally acquired recording. The court upheld the transmission count and three of the seven counts of illegal recordings. It threw out the other four because the state had charged Weeks with separate counts for every person who was illegally recorded, even in circumstances where she was recording more than one person on the same call.
That was the case, for instance, when she recorded Ken Detzner, then the secretary of state, along with Gary Holland and Drew Atkinson, attorneys at the secretary of state’s office, even though Detzner had told Weeks he did not want to be recorded. The appeal court ruled that there could not be three separate convictions of Weeks for that one phone call, but just one. The same issue applied on another call, thus reducing the seven counts to three, plus the transmission count.
The state’s evidence, the court ruled, “established that, without the knowledge or consent of the other participants, Weeks recorded three separate phone conversations. One phone conversation was a conference call with four other individuals, a second phone conversation involved two other individuals, and a third call was a phone call with a single individual. The State’s evidence was sufficient to show that on these three occasions, Weeks intercepted wire communications in violation of” Florida law.
“Weeks argues that because there were only three recorded telephone calls,” the ruling continued, “double jeopardy principles preclude her from being convicted of more than three counts of unlawfully intercepting wire communications. In response, the State argues that because Weeks unlawfully intercepted communications of seven different individuals, she can be convicted on seven counts. We reject the State’s argument.” But the rejection affects the case in degree, not in substance.
“I understand the appellate court’s reasoning, it makes some legal sense, they’ve done that for other crimes too,” Lewis said after the ruling was handed down today.
“On remand,” the judges ruled, “the trial court shall enter judgment and sentence against Weeks on only three counts of unlawfully intercepting wire communications in addition to the one count of disclosing unlawfully intercepted wire communication.”
“I don’t think it changes anything but I’m not the judge,” Lewis said “Of course the defense can always ask for a re-sentencing to argue that the circumstances have changed.” But, he said, “I can’t say what a judge will or will not do, but in general it’s not going to change what happened during the evidentiary portion of the trial.”
The case on appeal was decided by Chief Judge Kerry Evander, Judge F. Rand Wallis and Judge Dan Traver, the latter joining the court just last November.
The decision to a lesser extent vindicates County Attorney Al Hadeed and County Commissioner Charlie Ericksen, who had been at the center of what Weeks obsessively referred to as their “whispered conversation,” a conversation she caught on tape during a canvassing board meeting and, in a stew of repeated rumors, innuendos and baseless claims, fabricated into an allegation of corruption against Hadeed. Until then, Hadeed’s reputation, built on a long and influential career in local government and on cases with statewide ramifications, had been unsullied. Weeks maliciously and falsely sullied it. Today’s decision erases some of that blight, but not the multi-year history of Weeks’s claims, which extended well beyond the county attorney’s office.
The state initially included counts against Weeks for recording Hadeed and Ericksen, but the circuit court judge, Margaret Hudson, threw out the counts because the recording was found to have been made in the context of a public meeting, even if the material attendants at the meeting had moved to a different part of the supervisor’s office. It was that conversation, however, that was the springboard to the state’s case against Weeks. That case then uncovered numerous other conversations recorded without the consent of those being recorded–a third-degree felony in Florida, in any circumstance when those recorded have a presumption of privacy.
The Florida Department of Law Enforcement’s Philip Lindley served a warrant on Weeks when she was still the supervisor of elections, just before she resigned in January 2015. Lindley’s search uncovered the additional conversations. In her appeal, Weeks contended that Lindley’s testimony had been improperly “bolstered” by the state. The appeal court agreed, but found that “the admission of such testimony was harmless.” Weeks had also raised four other claims on appeal, all of which the court rejected.