REARRESTED 30 DAYS AFTER PLEADING TO SEX CASE IN COLUMBIA COUNTY
Former Gainesville and Lake City music teacher David O’Neill was labelled a sex offender under Florida law on December 19, 2016. According to police and court records, O’Neill, who actually has a doctorate degree in music, education or music education from the University of Florida, awarded in 2013, was rearrested right at 30 days(January 19, 2017) from his December 2016 sentence of five years probation in a Columbia County sex case. This is according to a report out of Gainesville, Florida, http://www.gainesville.com/news/20170120/gpd-sex-offender-violates-registration-in-online-ads,
Columbia County Sex Case
The two charges Dr. O’Neill was arrested on in Columbia County Florida, back on February 15, 2016, were originally a result of his actions communicating with a minor online in an attempt to have sex with that minor and the transmitting of material harmful to minors. He entered a plea to the one count of the transmission of harmful materials to a minor and was placed upon 5 years of felony probation by the judge in Columbia County or Lake City, Florida. Apparently O’Neill taught music in the Columbia County School system at one time. He has also taught in the Alachua County school system prior to these arrests. At the time of this writing, it appears that the Judge in Columbia County originally sentenced Dr. O’Neill to five years of sex offender probation but then court records show that his probation was corrected to be five years of standard felony probation. The difference between the two categories of felony probation are very significant. Although any felony probation is something to contend with, sex offender probation under Florida law, carries the following additional conditions, restrictions and requirements:
- mandatory curfew from 10 p.m. to 8 a.m.
- cannot reside within 1000 feet of a place where children regularly congregate( some counties such as Duval expand this to 2500 feet)
- active participation and successful completion of a sex offender treatment program
- no contact with the victim unless approved by the victim, the sentencing judge and the professional treating the sex offender
- if the victim was under 18, no contact with minors unless, same conditions as #4 above and the offender must be in sex therapy or have completed it
- if the victim was under 18, the offender cannot work for pay or volunteer at any place where children regularly congregate
- a prohibition on viewing, accessing owning or possessing obscene, pornographic or sexually stimulating material
- must submit a DNA sample (that is not just on sex cases anymore)
- restitution to the victim for all medical and psychiatric or psychological treatment related to the crime
- submission to a warrantless search by the probation officer of the person’s residence, person or vehicle (that’s not exclusive to sex cases)
- A polygraph exam, at least annually, by an examiner certified as a postconviction sex offender polygrapher
- must keep a driving log
- cannot keep a post office box without approval of probation officer
- if the charges allege sexual contact, probationer must undergo an HIV test and results provided to victim and/or victim’s parents or guardian
- electronic monitoring by GPS
- cannot access the internet until a risk assessment is completed and a safety plan implemented by the treating professional
- for offenders with victims under 18, the offender cannot hand out Halloween candy, dress as Santa Claus or the Easter Bunny
The Alachua County Arrest
Dr. O’Neill was arrested on January 19, 2017, on three new charges. As stated earlier it appears the sentencing judge in Coumbia County had placed him on a standard felony probation as opposed to the above described sex offender probation. Although not on sex offender probation, the doctor was still labelled a Florida sex offender with the Florida Department of Law Enforcement and had requirements placed upon him with that designation. The narrative portion of his arrest report states that the doctor had been observed standing on a street corner in Gainesville advertising his business by holding a sign. His business was apparently teaching piano lessons. The sign contained a web address. When the officer went to the web address the site contained, according to the officer, a link to the doctor’s email and his cell number. Further investigation by the officer revealed a Craigslist ad listing the doctor’s services. Quoted from the arrest report, “The Craigslist ad, the website selling his services, and the contact e-mail are all NOT listed as internet identifiers on the DEF’s sex offender registration form, yet they facilitate communication through the internet, a violation of his conditions. ” The officer arrested Dr. O’Neill for the three charges in violation of FS 943.0435(2)(4)(D).
New Felony Charges While On Probation, Fighting a Probation Violation in While Fighting New Charges
The doctor now faces a common problem defense attorneys face as they advocate for their clients. On the probationary case, the doctor will have an affidavit, or “violation report” filed against him. Most felony violation reports result in a warrant or capias with no bond set. Here, the latter Gainesville case does have a small monetary bond set on the new arrest. Should the doctor bond out, as a high number of people in this situation are prone to do, he is subject to simply being rearrested once the violation report has left the desk of the original sentencing judge, in other words, the judge that was monitoring him on probation. The money paid to a bondsman usually results in only a handful of days of freedom. On the new charges the doctor, as any defendant does, is afforded the presumption of innocence and those charges carry a burden for the state attorney to prove beyond any and all reasonable doubt at trial. On the pending violation of probation, the doctor, and other defendants, has much less for a defense attorney to work with. There is no jury trial on a violation of probation. There is no issue of guilt or innocence regarding the original charges. The defendant is entitled to an evidentiary hearing regarding the violation. The finder of fact is the judge. This writer explains to folks facing a violation hearing that the amount of proof needed is “up to the conscience of the court.” If the judge concludes at the hearing that a violation ocurred, the defendant is found in violation. From a practical and realistic standpoint, it is much less work for a busy prosecutor to conduct a violation of probation hearing than conduct a trial on new charges. If the new charges are not resolved, the default position for prosecutors and judges is to set the violation for a hearing before investing time and effort into a trial on the new charges. Another difficulty here in advocating for the doctor is the effect of simple geography. The doctor is/was on probation in Columbia County, Florida, which is in Florida’s third judicial circuit, so his judge and prosecutor are in that circuit. His new charges are in Alachua County, Florida, which is in Florida’s eighth judicial circuit, again,with a different judge and prosecutor assigned. Although these are adjacent counties, the prosecutorial philosophies or sense of required justice held by the two respective elected state attorneys that filters down to the line attorneys on each case often times can seem pretty far apart.
If you, a friend or family member is facing a potential arrest on a sex charge or has a potential violation of probation looming, have a conversation with an attorney regarding the situation. Almost all Duval, Clay, Nassau, Baker, St. Johns, Bradford, Alachua, Columbia, Flager or Putnam County defense attorneys offer free consulations and/or jail visits. This writer’s firm has plenty of experience handling the type of multi-county, multi-circuit cases described above.