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Always a defense attorney,
NEVER a prosecutor

MY PRACTICE IS DEVOTED TO THE DEFENSE OF CRIMINAL
CASES THROUGHOUT THE STATE OF FLORIDA

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Today, a Bradenton couple was found guilty of having sex on a Florida beach.  This is a VERY serious crime in Florida because each person was charged with committing a lewd and lascivious act which subjects them both to 15 years in Florida State Prison AND being classified as sexual offenders requiring they register as such and restricts where they can live in the future.

The couple was seen by numerous tourists who also claimed a 3 year old child witnessed the man and woman having sex.  Despite cries by witnesses to stop the couple did not listen.  Obviously, in this day and age of cell phones, people took a video of the two having sex.  This was a highly publicized case and you can read more and see the blurred, but still graphic video at:

http://www.bradenton.com/news/local/news-columns-blogs/breaking-news-blog/article34884858.html

The defense the couple used that they were only simulating a sex act did not go over well with the jury which convicted the couple of a lewd act in 15 minutes.

Because the male had a previous conviction for trafficking in cocaine and was recently released from a Florida prison sentence for that charge, he qualified as a Prison Release Reoffender (PRR) under Florida Statute 775.082 “Penalties; applicability of sentencing structures; mandatory minimum sentences for certain reoffenders previously released from prison.”

Under 775.082, a “Prison Release Reoffender” (PRR) means any defendant who commits, or attempts to commit:

  • Treason;
  • Murder;
  • Manslaughter;
  • Sexual battery;
  • Carjacking;
  • Home-invasion robbery;
  • Robbery;
  • Arson;
  • Kidnapping;
  • Aggravated assault with a deadly weapon;
  • Aggravated battery;
  • Aggravated stalking;
  • Aircraft piracy;
  • Unlawful throwing, placing, or discharging of a destructive device or bomb;
  • Any felony that involves the use or threat of physical force or violence against an individual;
  • Armed burglary;
  • Burglary of a dwelling or burglary of an occupied structure; or
  • Any felony violation of s. 790.07, s. 800.04, s. 827.03, s. 827.071, or s. 847.0135(5).

within 3 years of being released from a correctional facility.  Lewd & Lascivious crime under Florida Statute 800.04, therefore “sex on the beach” qualifies as PRR crime. Because the male was released from prison within the last 3 years of committing this crime, he must be sentenced to 15 years prison (the maximum for this offense).  The only way to mitigate this  mandatory prison sentence would be if the prosecutor filed a “mitigation memo” with the Florida Prosecutor’s Association requesting a departure from the 15 years PRR sentence required for a 2nd degree felony.

The female convicted of sex on the beach in this case does not face the automatic 15 year sentence and is subject to the Florida Sentencing Guidelines.  This is where the felony “Scoresheet” comes into play.  I researched the case and the prosecutor amended the Information (charging document) eight (8) times!  She was finally charged with committing a lewd act in the presence of a child or just a lewd act.  If it was only a lewd act, that would be a Level 5 offense which scores 36 points.  Under the Florida Sentencing Guidelines she would also score 80 points for “penetration”.  Putting that in the Scoresheet formula would result in a minimum sentence of 5.5 years.

36 points + 80 points = 116 – 28 = 88 * 0.75 = 66 months minimum

12 months in a year, so

66 / 12 = 5.5 year minimum prison sentence.

There would be no “Victim Injury Points” because the State of Florida is the victim in this case and there was no contact with any children, only consenting adults.

The prosecutor stated they would only be seeking a jail sentence in the female’s case, but if she is given a jail sentence, that will mean she is a convicted felon in addition to being a sexual offender (Adjudicated Guilty).  The judge can mitigate her sentence and not give prison time if he finds she qualifies for one of Florida’s “Mitigating circumstances” under Florida Criminal Statute 921.0026 which allow departure under the minimum sentence.  The mitigating circumstances listed in the Florida statute are:

  • (a) The departure results from a legitimate, uncoerced plea bargain.
  • (b) The defendant was an accomplice to the offense and was a relatively minor participant in the criminal conduct.
  • (c) The capacity of the defendant to appreciate the criminal nature of the conduct or to conform that conduct to the requirements of law was substantially impaired.
  • (d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.
  • (e) The need for payment of restitution to the victim outweighs the need for a prison sentence.
  • (f) The victim was an initiator, willing participant, aggressor, or provoker of the incident.
  • (g) The defendant acted under extreme duress or under the domination of another person.
  • (h) Before the identity of the defendant was determined, the victim was substantially compensated.
  • (i) The defendant cooperated with the state to resolve the current offense or any other offense.
  • (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.
  • (k) At the time of the offense the defendant was too young to appreciate the consequences of the offense.
  • (l) The defendant is to be sentenced as a youthful offender.
  • (m) The defendant’s offense is a nonviolent felony, the defendant’s Criminal Punishment Code scoresheet total sentence points under s. 921.0024 are 60 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term “nonviolent felony” has the same meaning as provided in s. 948.08(6).

The judge can consider other mitigating factors not listed above.  The most likely one to be used in this case is f,g, j, and possibly k.

Neither are subject to a $5,000.00 civil penalty like “johns” are in prostitution cases either which is set for oral arguments on Wednesday before the 2nd DCA.  I will continue to follow the sentencing in this case and keep you updated.

IF YOU THINK YOU ARE BEING INVESTIGATED FOR A SEX CRIME OR HAVE BEEN ARRESTED FOR A LEWD & LASCIVIOUS OFFENSE, CALL NOW AND SPEAK TO AN EXPERIENCED CRIMINAL SEX CRIMES ATTORNEY.

THOMAS C. GRAJEK 863-688-4606

Tags: 2nd degree felony CALL CRIME Criminal Punishment Code Florida Sentencing Guidelines Florida Statute GRAJEK INVESTIGATED lascivious lewd lewd act lewd and lascivious PRR SEX sexual offender THINK THOMAS video

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May 2015

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