Former Sarasota County Deputy Frank Bybee will be resentenced after a state appeals court overturned a kidnapping charge on Wednesday.

CORRECTION: Criminal attorney Bjorn Brunvand did not represent Frank Bybee during his trial.


SARASOTA — The Florida Second District Court of Appeal has overturned in part the sentence of a former Sarasota County Sheriff’s deputy convicted of kidnapping and exploiting an elderly woman he helped Baker Act in 2016.


Frank Eugene Bybee, now, 49, was sentenced in November 2017 to 15 years in prison for 13 felonies that included kidnapping, exploitation of the elderly, three counts of computer fraud and eight counts of fraudulent use of personal information.


But in an opinion filed Wednesday, Second District Appeals Judge Susan Rothstein-Youakim reversed the kidnapping conviction. Rothstein-Youakim said Bybee received ineffective assistance from his criminal attorneys. Their failure to move for a judgment of acquittal when there were serious concerns about evidence is reviewable on appeal, the judge said.


Rothstein-Youakim’s ruling is not final until time expires to file a rehearing motion, and if filed, a decision is made.


The charges against Bybee arose out of his relationship with the then 79-year-old woman and covered a period of about three months. He was sent to her house Oct. 16, 2016, because she was threatening suicide. She was transported to the hospital and involuntarily committed under the Baker Act. Bybee stayed to pray with her and they exchanged cellphone numbers.


The woman, who died in July 2019, and Bybee began communicating regularly. Over the next few months, the deputy came to her house to do chores such as painting and minor repairs.


As the woman’s health began to decline, she was admitted to the hospital more than once and spent time in rehabilitation facilities, according to court documents.


By December 2016, their relationship had soured.


The woman called the Sheriff’s Office twice to complain about Bybee’s involvement in her life. The agency told him not to have further contact with her.


After interviewing the woman, the Sheriff’s Office opened an internal affairs investigation of Bybee to determine if he was engaging in an inappropriate relationship with someone with whom he had been involved in an official capacity, court documents stated.


Investigators found that Bybee repeatedly accessed the woman’s AOL account and emails, accessed her financial information, accessed her PayPal account, and withdrew money using her debit card.


On Dec. 29, after Bybee was told to cease his contact with the woman, she was once again Baker Acted. While evidence exists that Bybee sent a message from the woman’s email account that set in motion law enforcement’s response to her home, deputies and medical staff at the hospital made the decision to Baker Act the woman based on their observations.


"Both the responding deputies and the hospital staff were statutorily authorized to make the determinations that they made," Rothstein-Youakim wrote.


Public Defender Karen M. Kinney, who handled Bybee’s appeal, called state prosecutors’ assertions that there was kidnapping a refutable "theory." However, Bybee’s counsel, John Lakin and Ronald Kurpiers, didn’t raise an issue with the charge at the right time, she said.


A resentencing hearing will be set in the next 30 days.


Prosecutors plan to seek a 15-year prison term, according to Assistant State Attorney Karen Fraivillig, who represented the state during the Bybee trial in October 2017.


"Bybee not only violated his professional duties as a law enforcement officer but also abused the trust of our community and that of his elderly victim," Fraivillig said. "This opinion affects only one of the 13 felony convictions that the jury brought at the conclusion of the trial. The State Attorney’s office seeks 15 years in DOC at the resentencing hearing, and we are hopeful that his 15-year prison sentence will remain in place for the four second-degree felonies and the eight third-degree felonies that are unaffected by today’s opinion."


Despite objections from Bybee’s counsel, Charlotte County Judge Donald H. Mason, who called Bybee a "bad cop" before sentencing, will likely preside over the resentencing hearing.


Mason, a former law enforcement officer, strayed from his personal rule of not making comments to the defendant before sentencing by telling Bybee that the majority of law enforcement officers take their job to heart.


"You’ll forever be known as a bad cop," the judge said.


Kinney said, "There was an issue that the trial judge should not resentence him because the judge made comments at the end. He had said, I think you went to this woman’s house with evil intent. The jury had found Mr. Bybee not guilty of all charges regarding allegations that he had gone to her house. When the judge said that it sounded like in his mind it was a reason for imposing such a harsher sentence. The trial attorney at the time never objected to this."


"During resentencing, the judge should be sure not to take into account some of the things he was found not guilty on."


The Second District Court of Appeal took nearly a year to review Bybee’s case before issuing Wednesday’s opinion.


Another former Sarasota County deputy, Carson Plank, who was arrested twice on charges of felony evidence tampering and misdemeanor giving false information to investigators was cleared in May 2019 of wrongdoing.


Plank, now 26, was employed at the Sarasota County Sheriff’s Office for nearly two years when she was fired on May 27, 2017, for allegedly trying to cover for Bybee as he was being investigated.


The state sought to have her law enforcement certification revoked — which would preclude her from being a police officer or deputy — for conduct unbecoming, two counts of conformance with laws and untruthfulness in an official proceeding.


However, Florida’s Criminal Justice Standards and Training Commission dismissed the case in May, saying the evidence did not show misconduct.


Plank’s criminal charges were dismissed.