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May 10, 2015

Florida prosecutor says he will not seek 15-year prison terms for sex-on-beach convictions

Images (2)As noted in this recent post, "Imprisonment for 15 years for sex on the beach?!?! Really?!?!," at least one member of an indecent couple in Florida seemed to be facing an indecent prison sentence for some shoreline dirty dancing. But this local article, headlined "State attorney won't seek 15-year prison sentences for Bradenton Beach sex-on-the-beach couple," now suggests that prosecutors are going to be seeking a much less extreme sanction for these miscreants. Here are the latest details:

State Attorney Ed Brodsky said Thursday he will not seek the maximum possible punishment — 15 years in prison — for the couple convicted of having sex in public on Bradenton Beach.

Brodsky, elected state attorney for the 12th Judicial District, said his office never intended to seek the maximum 15-year sentence against Jose Caballero, 40, or Elissa Alvarez, 20, for having sex on Cortez Beach in July.

The couple was found guilty Monday on charges of lewd and lascivious exhibition after a video played in court showed Alvarez moving on Caballero in a sexual manner. Witnesses testified a 3-year-old girl had seen the couple.

The charge carries a maximum sentence of 15 years in prison, and requires both to register as sex offenders. "It was never our intention to seek 15 years for either of them," Brodsky said. "That's not a reasonable sentence."

Defense attorney Ronald Kurpiers said because Caballero served a previous prison sentence for cocaine trafficking within the past three years and the prosecution had filed prison release reoffender paperwork, Caballero would be sentenced to the maximum sentence of 15 years under Florida's prisoner release reoffender law.

Kurpiers said if Brodsky was saying they weren't seeking 15 years, it meant they had withdrawn the PRR. "I've never experienced that before in all my years in law," Kurpiers said. "I'm honestly emotional about it. That was a huge hurdle."

Brodsky said he wasn't willing to discuss what kind of sentences they will seek and a sentencing hearing hasn't been scheduled. Kurpiers said the judge would now have some discretion instead of an automatic sentence for Caballero. Kurpiers said he would try to have the sentence lowered. "I need to get out my knee pads so I can get down and beg," Kurpiers said.

Brodsky refuted the claim he would be seeking the maximum punishment after Families Against Mandatory Minimums, a Washington, D.C.-based interest group that fights mandatory minimum prison sentences, said they called his office Thursday to urge prosecutors not seek 15 years in prison for Caballero.

"As outrageous as Mr. Caballero's behavior was, it would be even more outrageous for the state to make him spend 15 years in prison," said Julie Stewart, president and founder of the organization, in a release. "As a parent, I would not want my children to see people having sex on a public beach in the middle of the day. But as a taxpayer, I would be even more offended to waste hundreds of thousands of dollars to punish Mr. Caballero's irresponsible behavior."...

A campaign was also launched Thursday on Causes.com titled: "Free couple facing 15 years in prison for sex on the beach." Led by Vitor Ribeiro, whose Facebook account lists Portugal as home, the campaign received more than 500 signatures by early Thursday evening. "Having sex on the beach is not a crime worthy of such a barbaric sentence," reads the campaign's subtitle.

Stewart said the state plea offer to Caballero for two and a half years in prison prior to the trial was evidence it didn't believe he deserved 15 years for the crime. Brodsky confirmed they had made the plea offer, and Caballero chose to reject it to go to trial. Kurpiers said he "strongly recommended" his clients take the plea deal, but ultimately it was their choice to refuse....

Alvarez and Caballero are in the Manatee County jail awaiting sentencing.

Beyond its prurient elements, this case provides a notable case-study in the import and impact of mandatory minimum sentencing schemes and the sentencing power mandatory minimums necessarily place in the hands of prosecutors.

For starters, I doubt the defense attorney would have "strongly recommended" that one defendant accept a 2.5-year prison sentence for merely having sex on the beach absent the threat of a 15-year mandatory prison term if the defendant exercised his right to go to trial.  How could and would a defense attorney reasonably tell a client that a long prison term is a reasonable offer for this behavior and giving up all rights to challenge the state's case absent the threat of a much more extreme mandatory prison term if convicted after a trial?

Next, as I understand Florida law in this setting, the only reason now that defendant Caballero will not get 15 years in state prison is because the prosecutor now has decided to, in essence, nullify the Florida "prison release reoffender" (PRR) law by taking back the paperwork needed to invoke its mandatory sentencing consequences.  Absent the media scrutiny that this case has come to generate, would the prosecutor likely have been so quick to say he never sought an extreme 15-year PRR sentence for Caballero?.

Critically, if the prosecutor never thought this was a proper PRR case, why did the prosecutor initially file the PRR paperwork in the first instance against Caballero?   Is there likely any reason other than to to try to force a plea deal through the threat of an extreme mandatory prison sentence — a threat which would essentially require the defense attorney to "strongly recommended" that defendant Caballero accept the 2.5-year prison sentence offered by the prosecutor?

Finally, only when the defendants exercised their right to trial — and thereafter likely only because this case started to garner attention — do we now here the prosecutor say on the record that a 15-year term was never sought and would not be reasonable.  In other words,  only once the media saw the prosecutor with his hand in the extreme mandatory-sentencing cookie jar did he pull his hand out and say he never really wanted that 15-year prison term for Caballero.

It is reassuring to see that media attention can and will sometimes prompt a prosecutor in an individual case to exercise his power and discretion to take an extreme mandatory sentence of the table after a trial conviction.  But these problems only arise because of the existence of extreme and broad mandatory minimums, and that is why I generally believe such laws make for bad public policy because I think our sentencing system should incorporate true checks-and-balances rather than be functionally controlled  by executive branch fiat.

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May 10, 2015 at 09:40 AM | Permalink

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Comments

Smart prosecutor, backing up from something that would bring opprobrium on the court. I think judges need to start nullifying these laws on policy grounds. "I am forced by the law," is nonsense. Let the appellate court look stupid if the prosecutor disagrees.

Posted by: Supremacy Claus | May 10, 2015 10:24:20 AM

Let us be VERY clear here.

It is not incarceration in prison that is bad...it is the lifetime sex offender registration that will be the big punishment here! They will forever be banned from living in over 90% of the residential units in the state, have to register yearly, and have to suffer the "consequences" and "collateral damage" that the registry entails.

Most registrants I know would rather serve 10 years in prison if subsequently they do not have to register, than serve NO time and have to register for the rest of their lives. This may sound a bit extreme, but ask sex offender registrants and you will get confirmation.

Posted by: Eric Knight | May 10, 2015 12:38:02 PM

The sex offender registration seems silly. Sex offender registration should be for dangerous people.

Posted by: federalist | May 10, 2015 4:56:29 PM

Make them each clean the beach for twenty consecutive days. Call it The Semen Search.

Posted by: Liberty1st | May 10, 2015 6:13:46 PM

That article from the Miami Herald you linked to is an atrocious example of journalism, and does little to accurately inform its readers about this case. If anything, it's an example of market-driven news meant to grab the readers attention with "sex" and "15 year prison terms." (For an excellent examination of market-driven news and its effect on public opinion see Susan Beale. 2006. "The News Media's Influence on Criminal Justice Policy: How Market-Driven News Promotes Punitiveness." William and Mary Law Review 48(2): 397-481). The headline itself is a mess because, as I have seen from other reports, the prosecutor never had an intention of treating "the couple" similarly with regards to sentencing. Section 800.04(7)(a)(3) & (b) (the criminal statute at issue) is a felony of the second degree, punishable by a maximum 15 years. Whether that is an appropriate maximum penalty for that crime, across the board, is an issue that deserves to be debated. The author of this Herald article (and most of the other articles written about this story) have done a disservice to whether 800.04 should be reclassified as a lower offense.

A more important issue here is how the defendants should be treated with regards to sentencing, not as "a couple" but as separate individuals with separate backgrounds. Additionally, why did so many things change during the course of the trial with regards to defense council and strategy, and why is no one asking these questions? (that's rhetorical...no one is asking because it's boring factual based stuff and "sex" and "15 years in prison" is enough to get people clicking on the headline).

* On 7/21/2014 a probable cause affidavit was filed for both Elissa Alvarez and Jose Caballero for violation of 800.04(7)(b).

* On 7/25/2014 Caballero's attorney, Joe Campoli, filed a notice of appearance, plea of not guilty, and demand for discovery.

* On 7/30/2014 Alvarez's attorney, Leland Taylor, filed a notice of appearance, plea of not guilty, waiver of arraignment, demand for discovery, and demand for jury trial.

* On 3/12/2015 Caballero's new attorney, Ronald Kurpiers, files a notice of appearance and replaces Joe Campoli.

* On 3/24/2015 Caballero's attorney, Ronald Kurpiers, files a motion to sever the his trial from Alvarez. The motion states: (10) "It is anticipated at this stage of the proceedings that a real potential arises where each defendant would be blaming the other for the events which lead to the arrest and charge of the defendants. In order to defend against the current allegations, it certainly could be argued that Mr. Caballero was merely an innocent bystander to the events which led to their arrest."

* On 3/31/2015 Alvarez's attorney, Leland Taylor, filed a motion to sever her trial from Caballero. The motion states: (9) "The Defendant is (20) twenty years old and has no prison or criminal record. The co-defendant Jose Ben Caballero is (39) thirty-nine years old and has an extensive criminal record." (10) "The Defendant and co-defendant have antagonistic defenses. Moreover, the co-defendant has such an extensive criminal record the Defendant fears that the unsavory taint of the co-defendant's record might negatively impact the Defendant. As such, there is an inherent conflict between the defenses.

* On 4/14/2015 the State files a notice of Defendant's qualification as a "Prison Release Reoffender" and required sentencing term pursuant to 775.082

* On 4/17/2015 a hearing is held on the motion to sever and for both defendants the motion is withdrawn.

* On 4/19/2015 Alvarez's attorney, Leland Taylor, filed an Emergency Motion to Withdraw, stating: (1) "Under Rule 4-1.6(a)(1) [sic, should be 4-1.16(a)(1)], the Rules of Professional Conduct regulating the Florida Bar, and attorney must withdraw from a client's representation when continued representation would result in a violation of the Rules of Professional Conduct." (2) "On Saturday, April 18, 2015, the Undersigned [Taylor] learned facts and circumstances which indicate such a situation exists."
----Rule 4-1.16(a) When a Lawyer Must Decline or Terminate Representation. Except as stated in subdivision (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or law.
........Comment on the rule: Mandatory withdrawal: "A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or law."

* On 4/22/2015 a hearing is held and the court grants Taylor's emergency motion to withdrawal as council.

* On 4/23/2015 Alvarez's new attorney, Ronald Kurpiers, files a notice of appears. [both defendant's are now back to having a single trial and are now represented by same council. Why did Taylor file an emergency motion to withdrawal?]

After this Kurpiers files various motions to make testimony inadmissible, and the state files its Eighth Amended Information. Then on 5/4/2015 the jury returns a verdict of guilty. The previous timeline is obtained just by looking at the docket records for both defendants. I can only speculate, but it seems like "something" happened within that time frame where the defendant's decided working together was in their best interest. What exactly did Taylor learn on Saturday April 18, 2015, that caused him to file an emergency motion to withdrawal? Why did Kurpiers, who at first represented neither party, decide to represent Caballero and then join the trials of both defendants and represent Alvarez? These would seem like interesting questions for a reporter to ask. But, they aren't "sexy" clickbait type questions, and they require effort and time in a job where time is precious and churning out news articles to generate ad revenue is what's valued.

In my next post here I will continue with the boring details of this case and discuss the criminal backgrounds of the defendants; which is really the issue here given the 15 year sentence was for being a prison release reoffender ... not for having or simulating sex on a beach.

Posted by: Sean | May 10, 2015 8:48:52 PM

So Alvarez and Caballero have both been found guilty of the offense of lewd or lascivious exhibition by a person eighteen years of age or older upon a child less than 16 years of age. This a violation of F.L 800.04(7) and is classified as a second degree felony. The maximum term for a second degree felony is 15 years. However, Florida - like many other states - using sentencing guidelines worksheets. The guidelines use a point-based system (which is, as usual, quite complex) to determine what the minimum sentence ought to be, with the maximum sentence being the statutory maximum. A violation of 800.04(7)(b) is categorized as a Level 5 offense, which carries with it 28 points. The rest of the sentencing worksheet allows points for "Victim Injury"; "Prior Record"; "Legal Status Violation"; "Community Sanction violation before the court for sentencing"; "Firearms/Semi-Automatic or Machine Gun"; "Prior Serious Felony"; and "Enhancements."

Florida's 12th Judicial Circuit (which is where this case was tried) is composed of three counties: DeSoto, Manatee, and Sarasota. This case was tried in Manatee County. A search of both defendant's previous records only within these three counties results in:

Elissa Alvarez:
5/1/2013 - Seatbelt violation and speeding
4/1/2014 - Careless driving

These are the only prior charges and they are all simple traffic violations. For all three offenses the fines were payed in full by the defendant. While I certainly cannot know for certain how the judge will score the sentencing worksheet, I have trouble seeing how Alvarez would get points for anything other than the offense at hand. I see nothing in the guidelines documents suggesting that prior motor vehicle infractions are to be counted when calculating a sentence. The worksheet does state that "[i]f the offender was 18 years of age or older and the victim was younger than 18 at the time the offender committed the primary offense, and if the primary offense was an offense committed on or after 10/1/2014 ... if the violation involved a victim who was a minor and, in the course of committed that violation, the defendant committed ... a lewd act under s. 800.04 ... against the minor ... the subtotal sentence points are multiplied by 2.0."

If that is correct, and is used in the case of Alvarez, then she would have 56 points (28 x 2) for the purpose of sentencing. According to the guidelines "[w]hen the total sentence points exceed 44 points, the lowest permissible sentence in prison months must be calculated by subtracting 28 points from the total sentence points and decreasing the remaining total by 25 percent. The total sentence points must be calculated only as a means of determining the lowest permissible sentence." So, Alvarez would be looking at a score of 21 points [(56-28)*.75], which is her lowest permissible sentence in prison months. If I am reading the guidelines correctly, this puts Alvarez's sentencing range at: 21 months (low end) to 180 months (statutory maximum). There are several statutory provisions that allow the judge to depart downward, with such a departure being appealable by the State. Setting aside the fact that there may have been some pretrial shenanigans by Alvarez which frustrated the prosecutor, I have trouble seeing how she would not qualify for a mitigated departure or some sort of prison diversion program. If anything, she is the one people should be arguing deserves a lenient sentence in this case, not Cabarello.

I have not discussed the potential ramifications from having to register as a sex offender as a result of this offense. In my opinion that is a lifetime sentence that is far more important than a year or two on probation or even in county jail. Being labeled a sex offender at age 20 is a severe limitation on what you can do in this country for the remainder of your life. It is a label that I believe state officials have gotten too eager to use as a method of punishment and as a means to extract guilty pleas. The prosecutor in this case clearly had charging authority and could have charged Alvarez with violation of 800.02 (second degree misdemeanor) or 800.03 (first degree misdemeanor). Both of these offenses deal with "lewd" exposure, but are less severe than 800.04. I do not know if they also carry sex offender registration, but I find it difficult to believe they do considering they are misdemeanors. I have trouble believing two people who engaged in simulated sex on a beach in public are people that need to be kept track of for the remainder of their lives as they are sexual predators.

Because I feel like I'm on a role here, and I think it's important to know case facts before casting judgment on the decisions of public officials, I will write another post about Caballero's background.

Posted by: Sean | May 10, 2015 10:00:00 PM

Eric Knight, what if the person -- instead of serving 10 years in prison -- leaves the state of Florida? How does the registration work then?

"The sex offender registration seems silly. Sex offender registration should be for dangerous people."

Yes. As applied here, it is more than silly. It's absurd.

Posted by: Joe | May 10, 2015 10:18:43 PM

Final comment...I swear!

On 5/5/2015 two letters were sent to the sentencing judge on behalf of the defendants. Both letters are written rather childishly and chastise the judge and the court for thinking 15 years is an appropriate sentence for this specific conduct. Neither letter examines or discusses the fact that both defendants are different in their prior records, nor do they investigate Caballero's prior record.

A search of Jose Caballero's prior record within the three counties that make up Florida's 12th Judicial district provide the following:

5/13/1991 - No valid drivers license (2nd degree misdemeanor) - charge DISMISSED

5/20/1992 - Drivers license not carried / exhibited on demand (traffic infraction)

10/28/1992 - Failure to obey traffic control device (traffic infraction)

11/23/1993 - Failure to use due care (traffic infraction)

1/26/1994 - Driving while license suspended (2nd degree misdemeanor) - Supervised probation

2/7/1994 - possession marijuana; possession of paraphernalia (Ungraded misdemeanor) - deferred prosecution agreement w/ supervised probation (letter announcing unsuccessful completion of def pros agreement sent 6/2/1994)

2/8/1994 - Driving vehicle in unsafe condition (traffic infraction)

5/2/1994 - Driving while license suspended (criminal traffic); Violation of probation

6/22/1994 Ran stop sign (traffic infraction)

12/16/1994 - Possession of marijuana w/ intent to sell; possession of drug paraphernalia; disobeying a police officer (2nd degree misdemeanor) - Too confusing to know exactly what happened here. Defendant plead not guilty with a public defender, violated bond conditions, had multiple bench warrants issued, public defender eventually withdrew from the case and new council was assigned, final entrance is 4/15/1998 "Judgement of Conviction - Recorded"

3/27/1996 - possession of marijuana (1st degree misdemeanor); obstruction (1st degree misdemeanor) - bail conditions violated, bench warrants issued for failure to appear, plead nolo contendere with 60 days in county jail on 4/2/1998

2/26/1997 - Resist officer with violence (felony); resist officer - obstruction without violence (misdemeanor); failure to appear, bench warrants issued, false name used, contempt of court orders

3/12/1999 - Possess or display cancelled or revoked drivers license (misdemeanor) - plead guilty

8/26/1999 - Driving while license suspended (2nd degree misdemeanor) - plead not guilty, bench warrant issued, placed on probation

4/14/2000 - Failure to obey traffic control device (traffic infraction)

5/17/2000 - Unlawful speed (traffic infraction)

6/13/2000 - Cocaine trafficking (1st degree felony); marijuana possession (1st degree misdemeanor); resist officer - obstruction without violence (1st degree misdemeanor) - This case is a complete and utter mess if just looking at the docket sheet. The best I can make of it is that Caballero plead not guilty and went through all the pre-trial motions, eventually pleading guilty. Then he fled before sentencing and his attorney withdrew. He was picked up at some point and challenged the motion to transport. Then, he challenged his original guilty plea and started the process all over again, filing pre-trial motions. A judgement was finally handed down 5 years later and a sentence of max 12 years was given. Defendant then filed numerous pro se motions for post-conviction relief.

7/10/2000 - Unknowingly operating vehicle while drivers license suspended (traffic infraction)

1/9/2001 - Unknowingly operating vehicle while drivers license suspended (traffic infraction)

8/28/2001 - Unknowingly operating vehicle while drivers license suspended (traffic infraction); ran stop sign (traffic infraction); seat belt law (traffic infraction); driving while license suspended or revoked (2nd degree misdemeanor)

4/29/2002 - Driving while license suspended - Habitual Traffic Offender (3rd degree felony); plead not guilty and represented by public defender, bench warrants issued for failure to appear, failure to appear at sentencing, change of public defender, letter sent by defendant to judge asking for mercy in sentencing: "I am writing this letter and praying that you have great mercy and compassion on my life as God has done. I thank God that you were enriched by him in all utterance and all knowledge..."

All in all, Caballero has outstanding fees totaling $52,727.26, mostly originating from his cocaine trafficking conviction. The balance was sent to collections in 2007.

I am not even going to pretend to act like I would know how to fill out the sentencing worksheet for this guy in this case. He has such an extensive previous record and so many different statutes come into play that it boggles my mind how someone (or a computer) will compute the sentencing guidelines for him. What does appear clear is that the "prison release reoffender" provision, even if officially withdrawn by the prosecutor, can come back into play in the sentencing worksheet. In other words, the prosecutor can shirk responsibility to the judge and obtain the same sentencing outcome had the PRR stayed filed. Additionally, there is enough latitude in the guidelines worksheet that I find it hard to see how he won't be maxed out at 15 years just based on points alone. I have great difficulty in figuring out why Alvarez maintained a trial with this guy given the severe disparity in their backgrounds. It seems plausible that Alvarez's original attorney knew that her best situation was severing the trial, but that she decided to "stick with her man" even though that primarily benefited him. This might explain why original council withdrew from the case.

So what was the point of doing all of that background research and writing about it? Partly it was for my own benefit as my area of research is sentencing and this forced me to learn more about florida's sentencing provisions and navigating their court databases. The other part though is more geared towards my initial comments about media reporting being skewed and the effects this has on public opinion. It's possible that Kurpiers (the defense attorney) is a mastermind and sacrificed Alvarez's best defense (severing the trial) to the benefit of Caballero. He was able to get the media involved and portrayed the offense as a young couple simply being romantic on a beach, a picture that is bolstered by the girl's youth and the guys appearance of youth - even though she is 20 and he is 40. The way the offense is framed to the public primed them to be irate at the possibility of a 15 year sentence ... even though that amount of time is nowhere near what Alvarez would serve. But, the strategy was to link them together to benefit Caballero by attaching him to the innocent and consenting young female. In reality, the prosecutor and judge (both elected) have two completely different defendants that warrant different sentences, but have been linked together in the eye of the public.

Would the general public, and the people that wrote letters chastising the judge, still hold their opinion if they knew the different between the defendant's backgrounds?

Would the media reports be the same if the journalists took the time to investigate both defendants and disentangle them for the readers?

Has anything really been accomplished with regards to the larger debate on mandatory maximum sentences and provisions that are meant to allow prosecutors to be progressively tougher on repeat (and I do mean repeat) offenders?

Posted by: Sean | May 10, 2015 11:17:13 PM

Correction:

In the second post on Elissa Alvarez I assumed that her sentence was enhanced by a 2.0 multiplier because of the a provision in the sentencing manual. However, I realize that the offense in question occurred prior to 10/1/2014 and therefore may not qualify under that provision. The provision states, in full:

"If the offender was 18 years of age or older and the victim was younger than 18 at the time the offender committed the primary offense, and if the primary offense was an offense committed on or after October 1, 2014, and is a violation of s. 787.01(2) or s. 787.02(2), if the violation involved a victim who was a minor and, in the course of committing that violation, the defendant committed a sexual battery under chapter 794 or a lewd act under s. 800.04 or s. 847.0135(5) against the minor; s. 794.011(1); s. 800.04; or s. 847.0135(5), the subtotal sentence points are multiplied by 2.0. If applying the multiplier results in the lowest permissible sentence exceeding the statutory maximum sentence for the primary offense under chapter 775, the court may not apply the multiplier and must sentence the defendant to the statutory maximum sentence."

There are a lot of "if" and "and" in there and I may have read it wrong in that it would apply in the case of Alvarez. Assuming it does not apply because her offense occurred in July of 2014 her points total would then presumably be 28. This actually triggers a different sentencing provision since it is less than 44. Again, from the sentencing manual:

"The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure. The lowest permissible sentence is any nonstate prison sanction in which the total sentence points equals or is less than 44 points, unless the court determines within its discretion that a prison sentence, which may be up to the statutory maximums for the offenses committed, is appropriate."

In other words, if Alvarez's score is under 44 points the judge appears free to issue any nonstate prison sanction as the lowest sentence, unless he or she sees a need to depart upward. This would clearly be in Alvarez's favor as it would open the door to a number of diversionary sentences which would not require a downward departure. Whereas a point total above the 44 point threshold is meant to reflect the minimum in prison months after being modified by the formula.

If I have gotten anything else incorrect - which is clearly possible - I welcome the feedback and corrections.

Posted by: Sean | May 10, 2015 11:48:46 PM

@Joe

All registrants remain on the Florida registry UNTIL their deaths, and then they stay on one more year. Even if they leave the state, and even if they eventually get off the other state's registry decades later. While in Florida, they will have to abide by all of Florida's restrictions.

When they move to other states, they have to abide by those state's registration requirements. Most states apply what is called the "ratchet effect." This means that registration requirements can only increase upon moving, and never decrease, like a ratchet wrench only tightens in one direction. In general, it goes like this.

1. If the offender moves from a state where registration length for a particular offens is ten years to a state where it is lifetime, then the offender will receive a lifetime registration requirement.

2. However, if the offender moves from a state where registration length for a particular offens is lifetime to a state where it is ten years, then the offender will still receive a lifetime registration requirement.

Since Florida is lifetime registration requirement for all offenses (certain exceptions apply for juveniles), then for the most part, any other state they move to, based upon the ratchet effect, will have to endure lifetime registration...EVEN if other registrants within with the exact same offense only have to endure 10 years.

They would have been better off robbing and assaulting a tourist's 3-year old kid than by doing the bump-and-grind in the kid's view. Unfortunately, that is not sarcasm, but a reality of the registration scheme.

Posted by: Eric Knight | May 11, 2015 11:51:35 AM

Thanks Eric, but seems to me there must be at least one state in the union where a person can move to where the rules are better than ten years in jail. And, one or more states might not treat this particular crime (consensual sex among adults on a beach) as something where they have to get the same treatment. Your use of "most" underlines this.

And, especially sex offenders with a particularly unsavory crime on their record, would they really want to be in jail for ten years (how would they be treated there?) more than a registry? I get the horror of such a public shunning, but things like rape in prison ... might be more horrible in the minds of some. Some sex offenders also seem to be more likely to be fragile sorts less able to handle prison.

Posted by: Joe | May 11, 2015 12:20:58 PM

Sean. You've got all the details, but miss the forest for the trees, just as other actors in this case did. It is not reasonable to treat having sex on the beach in public, even if you are seen by a three year old doing it, as a felony. Florida's substantive law grossly overstates the severity of the conduct involved, which should be a middling grade misdemeanor.

The statute in question is aimed at people who are sexually abusing a 3 year old, not at people who are casually seen by a 3 year old by accident. The key missing component, either in the statute, or in the prosecutor's evaluation of the proper statute to charge, or in the defense, is that these people were not intending to expose a 3 year old to lewd conduct, even if they weren't as careful to prevent people from seeing that as they should be.

As applied in this case, any couple who didn't close their door and were surprised by their kids in their own bed could face similar charges.

This is what is absurd. Nobody should be talking the language of felonies in a case like this, but the prosecutor lacked the common sense to realize that.

Posted by: ohwilleke | May 11, 2015 5:36:59 PM

Sean,

There's no way Caballero scores 15 years under the guidelines. Based on his priors (and based on speaking to his attorney and others who've looked at his record) the best estimate is the lowest permissible sentence would clock in at a little under two years. (Which makes sense given the final plea offer, which he rejected.)

I don't think anyone really ever thought thought Alvarez was looking at 15 years. It was the 15-year *minimum* for Caballero that was always the the issue in this case, for all the reasons Prof. Berman cites in the post. And even taking into consideration his (lengthy, if not particularly *bad*) criminal history, the prosecutor offered 2.5 years. He turned it down and was going to get 15 because he opted for trial, period. *That* is the issue here, and nothing you've cited in your comments changes (in my mind, at least) the fact that *that* is fundamentally not right.

Posted by: Fla. Sentencing | May 11, 2015 7:36:28 PM

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