OKEECHOBEE — Because of a 4th District Court of Appeals opinion, Circuit Court Judge Sherwood Bauer issued an order Thursday to release Andrew Logan Wheeler from prison.
Assistant state attorney Ashley Albright said he didn’t know just when Wheeler would be released from the Okaloosa Correctional Institution. But, around 3:15 p.m. Thursday, Judge Bauer was issuing the order.
Andrew Logan Wheeler, 21
Wheeler, 21, was sentenced in August of 2015 to serve 30 years in prison after being convicted of beating a highly-intoxicated 16-year-old boy at a house party. The entire incident was recorded by a friend of Wheeler’s on a cell phone.
Judge Bauer was the trial judge and, because of that, it is up to him to release Wheeler.
“I was sick to my stomach after I read that,” said Mr. Albright of the 4th DCA’s opinion Wednesday, Nov. 9. “It’s a classic example of they don’t like the fact he got 30 years.”
The prosecutor had spent much of the day Thursday on the phone with the state attorney general’s office in hopes they would request a rehearing in front of the high court. He also asked that a video of the beating be shown to the justices, since they did not view it prior to handing down Wednesday’s ruling.
“But, the attorney general’s office refused to request a rehearing,” said the dejected prosecutor late Thursday.
A jury had found Wheeler guilty of aggravated child abuse and Judge Bauer then handed down the sentence. And, because Wheeler had only been out of prison 74 days when he committed the new felony, the judge sentenced him as a prison releasee re-offender which boosted his prison term to 30 years.
“Thirty years is an exceptionally long time,” said Judge Bauer at that sentencing. “But, the legislature has taken the decision out of the judge’s hands.”
Then, on Nov. 9, 2016, justices on the 4th DCA ruled the 30-year sentence was too long. They also opined the aggravated child abuse charge was not the correct charge.
According to the high court that statute applies when a person “(w)illfully tortures, maliciously punishes, or willfully and knowingly cages a child.
The justices went on to say a subsection of that statute is violated when a person “(k)nowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability or permanent disfigurement to the child.”
Florida statutes define a child as anyone under the age of 18.
Police records show the then-teenaged victim went to the S.W. Ninth Street home owned by Evadean Lydecker Daily and drank four mixed drinks, four Locos and whiskey, three or four beers and some whiskey straight from the bottle. He was so drunk he couldn’t stand up, continue those records.
The cell phone video clearly shows Wheeler lashing out at the helpless teen as he punched and kneed the teen in the head.
Justices ruled during Wheeler’s trial the state failed to prove the teen, Aaron Hill, was willfully tortured, was permanently disfigured or that there was malicious punishment. They described the beating as a high school fight.
The high court also ruled the jury in Wheeler’s trial only had two choices — find him guilty of aggravated child abuse or not guilty. The justices said the trial court denied the appellant’s request for the jury to be offered a lesser included crime of misdemeanor battery.
“In this case,” stated the DCA opinion, “there was no medical testimony. The victim did not testify. There was an absence of evidence that the victim suffered great bodily harm. Testimony that the victim was moaning and crying in the video are, at best, proof of moderate harm insufficient to support a conviction.”
Mr. Albright explained that because the rehearing was not granted, Judge Bauer’s hands were tied and Wheeler must be allowed to “walk away free.”
It’s a touch of irony that Wheeler is going to be set free, since Hill, now 18, is currently incarcerated in a state prison
On Dec. 16, 2015, Judge Bauer sentenced Hill to 36 months with the Department of Corrections (DOC) after he was found guilty of aggravated assault with a deadly weapon, placed on probation then violated that probation when he was convicted of grand theft.
Mr. Albright said, in his opinion, the court’s ruling “… appears to be judicial activism. The appeals court didn’t like the fact he got 30 years for what they referred to as a high school fight. They replaced the verdict with their own personal feeling that it was not malicious punishment.
“They replaced their verdict for the jury’s,” he added.