It seemed like a lenient sentence for Dan Priotti, the temperamental and controversial owner of Agua Construction Co., whom a jury found guilty of his third drunk driving charge in 10 years after a one-day trial last March. He was charged with domestic battery soon after that. But appearances can be deceiving.
Circuit Judge Terence Perkins this afternoon sentenced Priotti to 63 days in jail and five years’ probation. He’s been in jail for 63 days–he marked his 45th birthday at the county jail on Wednesday–so he gets to go home today. The sentence contrasts sharply with that of Terry McManus, the former owner of Flagler Beach’s nine-hole golf course, who was sentenced last October to four years in prison for the same offense, but by a different judge (Chris France).
It also contrasts with the prosecution’s stated intentions before Priotti’s trial earlier this year. Perkins had made those intentions clear when he tried one last time to get a plea agreement with Priotti: “The state wants a prison sentence,” he told Priotti, not just jail time.
Why did the state change its mind?
Because the prosecution had flubbed a part of the case during trial. It had allowing a recorded segment of Priotti’s interaction with a Florida Highway Patrol Trooper to reveal to the jury that he had had prior drunk driving convictions, and had gotten counsel from his attorney. Those excerpts could have potentially prejudiced the jury against Priotti. They should have been redacted in accordance with trial rules. There was no question that the prosecution had made a serious mistake, and that it was grounds for a mistrial.
The defense argued that point, and motioned for a mistrial. Perkins, who presided over the trial, denied it. Assistant State Attorney Mike Willard, who prosecuted the case, admitted to hearing the parts that should have been redacted. He argued to Perkins that the mistake was unintentional (which is irrelevant as far as what a jury hears). He also argued, or rather presumed, that the jury had probably not heard the prejudicial statements. “I would argue that it is not material, it was not something that was focused on, it’s an isolated event.”
But that was just a guess. As was the judge’s guess that the words had not had much of an effect on the jury. Perkins suggested instructing the jury to ignore the statements. But the defense argued that it would only bring further attention to the very words that should not have been heard. The motion for a mistrial denied, the trial resumed, and the jury eventually found Priotti guilty.
Whether the words to the trooper played a role or not will never be known. But what was clear from trial was the substantial evidence against Priotti. He’d been speeding at nearly 30 miles per hour over the speed limit, he’d refused to take a breathalizer test, and he’d been drinking. The jury took 35 minutes to find him guilty, which strongly suggests that it was not a difficult decision.
Still: the error loomed, and the defense had ample grounds for appeal and the possibility of a reversal.
So the prosecution made a deal with the defense, resulting in a rare stipulated sentence, before the judge even saw it, with even rarer terms: Priotti would have no prison time. He’d have no more jail time than the days he’s been serving since a more recent domestic battery arrest. But he’d sign away his right to appeal, and he’d sign away his right to argue for a reduction of his sentence after his conviction. That, in essence, would amount to a win for the prosecution, and save it (or the judge) from the embarrassment of an overturned conviction, or the risk of having Priotti back on the road, or back drinking and driving (he told the judge today that he’s been sober three years).
Priotti would have known that he had grounds for appeal. But the prosecution could have also dangled the threat of a long prison sentence (with the McManus example ready at hand) if he did not sign on. Even if he filed an appeal, it would likely take a year or more to make its way to a ruling, time Priotti would have to spend in state prison anyway. That’s not necessarily what took place. But given the leniency of the sentence and the facts and flubs of the case, it’s very likely what took place, especially based on the way Priotti reacted today.
Priotti, who appeared by zoom from the jail, seemed grateful to avoid further jail time or any prison time. “I just want to say thank you for the courts for allowing me to do this,” he told the judge. “And I appreciate Jason working with my lawyer, Mr. Lewis, working with my lawyer to accomplish this.” Assistant State Attorney Jason Lewis–not known for making mistakes–picked up the case after Willard and negotiated the deal. Priotti since the conviction has been represented by Michael Lambert.
That left the other terms of the sentence. Priotti was adjudicated guilty of the third-degree felony, requiring him to surrender firearms and revoking his right to vote for the next five years. His driver’s license was revoked for the next 10 years. If and when his license is restored, all the vehicles he owns will have to be equipped with an interlock alcohol-monitoring device for two years, at his expense. Every time he has to leave the county, whether for medical reasons–he is disabled, and in a wheelchair, requiring regular care–or for work, which he says can take him to three different counties in a single day, he must get his probation officer’s permission ahead of time, every time. “You can’t go there and then come back and say oh, by the way,” Perkins warned him.
He is barred from consuming alcohol for the duration of probation. The judge imposed a weekly urinalysis for the first 90 days of his probation, then random analyses after that. He will also be required to pay a $2,500 fine. If he violates probation, he could end up in prison for the five years.
There was also the matter of the domestic battery charge, a first degree misdemeanor. the state agreed to have the charge reduced to simple battery, even though it remains a first degree misdemeanor, and not ask for probation or jail time on that one, but for a no-contact order regarding the victim, and attaching that order to the five-year duration of the probation. Priotti had no issues with that. “I have no issues with it putting on for a lifetime, no issues at all,” he told the judge, eliciting a chuckle from Perkins and the attorneys. He was adjudicated guilty on that charge as well.
Priotti is eligible to apply for early termination at the halfway point of his probation, if he complies with all the rules. But that’ll be up to the judge to decide. The prosecution does not intend to agree to early termination, Lewis said.