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May 6, 2015

Imprisonment for 15 years for sex on the beach?!?! Really?!?!

ImagesI had heard earlier this week about the Florida couple getting into criminal trouble for having sex in public on a beach, but only this morning have I focused on the reality that, thanks to Florida's severe recidivist sentencing laws, it appears that one of the defendants may have to serve 15 years(!!) in state prison for this crime.  This local story, headlined "Couple found guilty of having sex on Florida beach," explains:

A jury Monday found a couple guilty of having sex on Bradenton Beach after only 15 minutes of deliberation. The convictions carry a maximum prison sentence of 15 years.

Jose Caballero, 40, and Elissa Alvarez, 20, were charged with two counts each of lewd and lascivious behavior for having sex on a public beach on July 20, 2014. Video played in the courtroom during the 1- 1/2-day-long trial showed Alvarez moving on top of Caballero in a sexual manner in broad daylight. Witnesses testified that a 3-year-old girl saw them.

Both Caballero and Alvarez will now have to register as sex offenders.

A sentencing date was not announced, but Assistant State Attorney Anthony Dafonseca said they will pursue a harsher sentence for Caballero than Alvarez, since Alvarez has no prior record and Caballero has been to prison for almost eight years for a cocaine trafficking conviction.

The state will ask for jail time for Alvarez and prison time for Caballero. Dafonseca said due to Caballero being out of prison less than three years before committing another felony, he's looking at serving the maximum time of 15 years. "We gave them a reasonable offer, what we felt was reasonable, and they decided it wasn't something they wanted to accept responsibility for," Dafonseca said. "Despite the video, despite all the witnesses."

Ronald Kurpiers, defense attorney for the couple, said his clients were "devastated," by the verdict. Though Dafonseca hinted that they'd be speaking with the judge about whether or not 15 years was appropriate for Caballero, Kurpiers said the judge would have no discretion. "That's what he'll get," Kurpiers said.

Ed Brodsky, elected state attorney for the 16th judicial district, joined Defonseca in prosecuting the case. When asked why the case was an important one to the state attorney, Dafonseca said it was important that the community knew what wouldn't be tolerated on public beaches. "We're dealing with basically tourists, that came from Brandon and Riverview and West Virginia, and they're here on the beaches of Manatee County, our public beaches," Dafonseca said, referring to the witnesses. "So you want to make sure that this isn't something that just goes by the wayside. And that it is well known to the community, what will be tolerated and what won't be."

Family members who witnessed the act and a Bradenton Beach police officer, as well as Caballero, testified in the case. The defense argued that the two weren't actually having sex, but that Alvarez had been dancing on Caballero or "nudging" him to wake him up. "She wasn't dancing," Dafonseca said during closing arguments. "It's insulting your intelligence to say that she was dancing."

Kurpiers said since the witnesses had not seen genitals or penetration, and neither was visible in the video, either, that saying the two had sex was speculation. "You folks cannot speculate," Kurpiers told the jury. "And in order to say they had intercourse, you would have to speculate."

Brodsky said they weren't calling it the crime of the century, but it was still a violation of Florida law. "Did they try to cuddle, or do it discreetly? Did they go in the water, where people couldn't see?" Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself, or anything? They didn't care."

I do not know Florida sentencing law well enough to know if defendant Caballero is in fact going to have to be sentenced and actually going to have to serve a decade or more in state prison for his misguided dirty dancing on a public beach. This press report makes it sound as though perhaps there may be some means for the sentencing judge to impose a lesser sentencing term, and I think a constitutional challenge based on the Eighth Amendment might also be viable here if state law really does mandate such a severe term in this case.

In addition to wondering whether and how Florida sentencing law may provide the judge with some sentencing discretion in this setting, I especially wonder about the terms of the "reasonable offer" that prosecutors offers to resolve this case via a plea deal. Specifically, I wonder if the offer required either or both defendants to serve significant time incarcerated and required sex offender registration. Especially given all the housing restrictions on registered sex offenders in Florida, that component of any conviction may have led to the defendants being especially eager to try to fight the charges.

May 6, 2015 at 09:37 AM | Permalink


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My question when I heard this story on the radio was how broadly written is the Florida statute. I assumed that the judge has some discretion in the sentencing decision and that the range of punishment is altered by the prior offender status of the defendant.

I can see a legislature writing a very broad statute that covers a wide range of sexual misconduct (ranging from indecent exposure to some forms of non-consensual sexual activity) and then giving judges discretion to make the punishment fit the actual misconduct. Of course, when you do that, you get stories like this that look at the maximum theoretical punishment before sentencing (even though the ridicule is only partially deserved for sloppy drafting). If the legislature wrote a very narrow statute only covering indecent exposure and imposes a mandatory sentence based on prior offender status, then Florida fully deserves the ridicule and the potential Supreme Court case that it might be getting out of this incident.

Posted by: tmm | May 6, 2015 9:58:25 AM

I'm always curious about how competent the journalist is to be covering this type of story.

I practice in a small city where there's really just one newspaper writer on the crime beat and that writer is just awful, which serves very much to the detriment of the public. It's easy to say, when talking about a mid-level drug crime, that the maximum sentence is ten years in prison - it's right there on the face of the complaint! When people get sentenced to fifteen months stayed to probation, people are outraged - why are our judges so soft on crime? They never learn that that's a guideline sentence and that the judge doesn't have the authority to impose any departure, much less an octuple departure, without the prosecutor's motion to do so and a jury finding (or court finding, with a Blakely waiver) of aggravating factors.

I write that rant to say that I'm always skeptical of "maximum sentences" described in the lay press, partly for the reason that TMM writes just above, partly because there's often something at play other than simply the absolute statutory maximum and pure discretion by the sentencing court to go from 0 to 15. The defense attorney's statement makes me think that there may actually be a risk of the full boat here - but he may be trying to raise awareness of the case, which would seem to be a smart move which would serve his client.

Posted by: Anonymous | May 6, 2015 10:52:16 AM

Whatever happened to beach patrols telling people to "Move along now folks, you can't be doing that here". Is it too far fetched to think that people might actually stop what they're doing, and, move along? Instead, now we fill prisons by locking people up for 15 years and sentence them to a lifetime on a registry, for dry humping on a beach. The only winner in this is the prosecutor's wallet.

Posted by: kat | May 6, 2015 11:01:39 AM

The reporter accuaretly recited the law. The State filed a pre-trial notice that Mr. Caballero qualifies as a prison release reoffender under the law and pursuant to Florida law the court has NO discretion but to sentence Caballero to 15 years prison. That being said, there are creative ways around that mandatory sentence if all parties agree or if upon filing of the right motion by the defense and if the judge agrees a mis-trial could be declared. I am a 20+ year practioner in Florida's criminal courts.

Posted by: swamp thing | May 6, 2015 11:59:48 AM

That's helpful, Swamp Thing - thank you.

Posted by: Anonymous | May 6, 2015 1:06:18 PM

Less mentioned (if at all) is the fact that BOTH participants will have to register as sex offenders in Florida. Caballero will have to register as a predator because of his earler felonies. Restrictions will remain with them for the rest of their lives, which are typically worse than then average parole.

Posted by: Eric Knight | May 6, 2015 1:08:07 PM

Pork em if ya gottem is a legal defense to public exhibition in Florida.

Posted by: Liberty1st | May 6, 2015 10:33:29 PM

Persuasive if the point of this story is to show how stupid lawyers are.

1) Most of the world lives in one room. So three year olds see and hear a lot of sex by the millions. No harm can be shown there.

2) No evidence of intercourse. Even if there were, it should be a summary offense such as disturbing the peace. A warning, or at worse, a ticket should be issued.

3) I have supported the arrest of Al Capone for income tax evasion. I would support the death penalty for shoplifting by a mass murdering drug kingpin. In other words, the pretextual use of a law (the false use of a law) is fully justified against the correct person. There is not enough about the defendant to justify the 15 year sentence. If he is a low level, non-violent criminal, then the sentence represents tax fraud by the judge. Stealing taxes to give to government workers in make work.

Posted by: Supremacy Claus | May 7, 2015 5:12:49 AM

As a long time defense attorney, hearing that there had been pretrial "offers" in this case and then seeing that both defendants were represented by the same counsel, is equally as problematic as there's a presumption of a conflict of interest. E.g., if they offered the woman a non-SORA misdemeanor plea in exchange for her testimony, that's probably a conflict-per-se, although I am not licensed in FL and don't know how their courts interpret such. But, it is problematic imho, especially considering the results and now SORA requirements.

Posted by: Dew_Process | May 8, 2015 10:36:31 AM

In picking the jury, if I was defense counsel, I would ask the group if any of them, or their kids, had ever had sex in a drive in movie in the back seat of a car. If any say yes, then ask if the car rocked up and down? Or sideways? If yes, ask if they now think that the people around them knew what they were doing. Ask them what the difference is if few or none of the on-lookers at the beach could actually see the private parts of the two porkers. By the time jury selection is over you probably have a not guilty verdict looming.

Posted by: Liberty1st | May 9, 2015 3:12:16 PM

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