He Faced a Minimum of 4.2 Years in Prison for Hit and Run. He Got Less Than 1 Year in Jail After Paying Victim $150,000.

A $150,000 settlement paired with a $100,000 insurance settlement can go a long way to convince the victim of a hit and run to turn advocate for his assailant and ask the court not to send him to prison. 

The prosecutor put it more bluntly: “It creates the perception that justice can be bought and that those who have the money to pay are going to receive a more lenient sentence,” Assistant State Attorney Tara Libby told the court in a stunning sentencing hearing in Bunnell Thursday.  It undermines “confidence in the justice system when that happens.”

That’s what appears to have happened between Joao Fernandes and Tristen Thompson, who until last month had spent the previous year as adversaries, with Fernandes facing several years in prison on top of a civil suit from Thompson. 

Fernandes walked into court from the Flagler County jail Thursday facing a minimum recommended sentence of 4.25 years in prison for hit and run with severe injuries to the victim. The prosecution asked for five years in prison, followed by 10 years on probation. 

Fernandes walked out with a sentence of less than a year in the local jail, some of which he’s already served, and five years on probation. Senior Circuit Judge Terence Perkins pronounced the sentence. 

A year ago on Belle Terre Parkway Fernandes, 50, struck Thompson, 23, with his truck and drove on, leaving Thompson a mound of broken bones and other injuries on the grassy shoulder. Thompson had just learned to ride a motorcycle, and wasn’t even riding his own that evening. 

Last June Fernandes turned down the state’s offer of a year in prison, claiming innocence. He didn’t think he’d done anything wrong. He rebuffed Circuit Judge Dawn Nichols’s advice to accept the plea even as she all but assured him he’d be convicted. He demanded a trial. 

After a two-day trial in mid-July, a Flagler County jury took just 27 to find Fernandes guilty. The evidence Libby had marshaled was beyond question. The hit-and-run conviction carried a maximum penalty of 15 years in prison, though Fernandes’s clean record meant he’d certainly serve much less than that, but just as certainly, not zero. 

His sentencing scoresheet added up to 96 sentencing points, and, under the state’s guidelines, a “lowest permissible prison sentence” of 51 months, or a little over four years. 

On Thursday, in an astounding “downward departure” (the legal term for a sentence that falls below the recommended guidelines), Perkins sentenced Fernandes to 360 days in jail–five days short of the trigger for state prison–followed by five years on probation, with about six weeks’ worth of credit for the time he has already served in jail. 

The downward departure hinged on Thompson’s about-face.

Thompson was first to address the court in the hour-long sentencing hearing as Fernandes sat at the defendant’s table in his orange jail garb–he’d had his low bond revoked after the verdict–and his family and friends sat in the gallery. 

“This has been a difficult experience. It has affected my life in many ways, but through the process, I’ve come to believe that Mr. Fernandez is truly remorseful,” Thompson told Perkins, reading at the lectern from a statement. “He has stepped forward to take responsibility in a meaningful way, and I believe that what matters most in the long run is whether someone is willing to make things right, not just with words, but with real action.”

He did not say what that real action was. But Thompson had sued Fernandes for civil damages. The case was in the discovery phase. There was a mediation on Aug. 12. It was not successful. Two weeks later–six days before the sentencing–Thompson voluntarily dismissed the action. There’d been a settlement Thompson could accept. 

Fernandes had offered $150,000, according to Thompson, He did not reveal that in his statement. He did so when Libby asked. He also revealed the $100,000 insurance settlement. 

“Regarding your statement as part of the civil resolution, you were required to make this statement and read it in court?” Libby asked him. 

“Yes ma’am.” 

“But for the agreement in the civil case, would this statement have been written and read?” Libby asked. 

“In this same way,” Thompson said, “no. But regarding the same thing, yes.”  

By settling the case, Thompson said, Fernandes was taking responsibility. He had not asked Fernandes to agree to that settlement before the trial. It’s not clear whether Fernandes had made an offer. 

“Would you agree that taking this case to trial was not taking responsibility for his action?” Libby asked. 

Fernandes’s attorney, Brian Penney, objected: “He has a constitutional right to go to trial,” Penney said. 

Circuit Judge Terence Perkins overruled the objection. It wasn’t a question of constitutional interpretation, Perkins said. 

Libby repeated her question to Thompson, who was now in the odd position of defending his assailant. But he’d opened that door. It was Thompson who’d described Fernandes as taking responsibility. 

It isn’t unusual–it is, in fact, almost the rule–for defendants facing prison to suddenly take responsibility in efforts to sway the court toward a less harsh penalty. What is unusual is when a defendant manages to enroll his victim to plead his case. Clearly, Thompson had no idea his about-face would lead to the sort of questions he was now facing from Libby. But she’d seen her chief witness change sides. 

“Yes and no,” Thompson said. “I mean, that’s hard to say. Because if I was in his shoes, I would probably do the same thing, go to trial. I wouldn’t say it’s not taking responsibility. It’s like, I mean, he thought he was able to go to trial and win. I mean, I would do the same thing.” 

Thompson may have expected even less that Perkins would then start asking him questions. He did. The judge wanted clarity on restitution. “Have you been financially made whole?” he asked Thompson. Thompson had. All bills have been paid. The prosecution is not asking for restitution. 

“Can you tell me a little bit about how the resolution of that civil case turned to this criminal case and resulted in you reading the letter?” Perkins asked him. 

Thompson said he initially hadn’t felt “heard.” The civil negotiations changed his mind. “I hate ripping people away from their families. That’s not my intention,” Thompson told the judge. “I know that harms them more than anything. So that’s kind of what changed my mindset, is them willing to help me in the long run, made me want to be willing to help them in the long run as well. So that’s kind of where I came to this decision.”

Fernandes is a contractor. “The settlement has already been reached. Mr. Thompson said he’s received the money,” Libby said. Defendants don’t often have the money to make such settlements. That was Libby’s point: in this case, the settlement was influencing the sentence. 

The mediation agreement in the civil case was not binding on the criminal court, Perkins said, but he was taking note of it. 

The court then heard from a series of family members and friends of Fernandes, among them his children and two friends. Penney read a letter Fernandes himself had written, apologizing to Thompson and his family.  “I should have been driving more carefully, and I should have stopped,” Fernandes said by way of Penney. “I can’t imagine everything you and your family have had to go through as a result of my actions, and for that, I’m truly sorry.” He said he took responsibility. “I’ve had more than enough time to think about what happened, what I did, and what I could have done differently. With that time, I’ve been able to better understand myself and what I can do to make sure no one ever gets hurt again, and that I’m never back here again.” Several people submitted character letters. 

He pledged to take courses to learn not to be an aggressive driver, and to take anger management classes “so that I can better learn to control my behavior on the road and understand how to better deal with situations.”  (The pledges were redundant: the court ordered him to those courses.) 

The court customarily takes the victim’s wishes into account at sentencing. But this was an unusual case. Thompson’s position had “changed drastically,” in Libby’s words. Libby asked the judge to hew close to the sentencing guidelines, and recall how long Thompson was wheelchair bound (a few months) after three weeks at Halifax hospital. The wreck had left him with a punctured lung, a fractured leg, a fractured hand, broken ribs and other injuries. 

She rejected the defense’s claim that the incident was “unsophisticated,” and noted that in the pre-sentencing investigation Fernandes was still “blaming all the motorcyclists.” 

“State’s recommendation is an adjudication of guilt, five years in the Department of Corrections [meaning prison], followed by 10 years of probation,” Libby said, and four years’ revocation of the driver’s license. The state requires at least three years’ revocation. 

Penney argued that the offense was “unsophisticated,” “isolated,” without premeditation, and that Fernandes had shown remorse. “They paid the restitution. They had to take a second mortgage on their house, from what I understand,” Penney said. “So those payments are still having to be made, whether or not the court orders them.”

Perkins as he prepared to impose sentence called Thompson’s statement “a game-changer of types.” (Perkins retired in September but has returned as a senior judge, filling in when Nichols has been away from Flagler: the week Fernandes was tried, she was presiding over a high-profile sentencing case in DeLand. Since Perkins presided over Fernandes’s trial, he was required to be the sentencing judge.)

“There’s abundant evidence indicating that this was an isolated incident,” Perkins said. “It was isolated not only with regard to the absence of other criminal conduct at other points in Mr. Fernandes’s life, but even with regard to criminal conduct on the night in question.” The judge accepted the sincerity of Fernandes’s remorse. 

That left whether to determine if the crash was “unsophisticated.”  Perkins said he had no evidence to support that other than common sense. “I don’t think this was something that Mr. Fernandez thought about or was intending to do,” he said, taking Fernandes at his word that he had not seen Thompson at the time of the collision. 

So he opted for the downward departure–the 360 days in jail, with 53 days’ credit, five years on probation, classes, a prohibition on drugs and alcohol, 120 hours of community service at a trauma center, and a three-year suspension of the driver’s license, not four. Left unspoken was how the sentence perhaps unwittingly but no less carelessly undermined the credibility of Circuit Judge Dawn Nichols.