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Nancy Smith

15 Years for Sex on the Beach? Let's Think about That for a Minute

May 8, 2015 - 6:00pm

For a variety of reasons -- and, I promise, none of them is because I like a good, salacious news story -- a jury trial in Bradenton captured my attention this week.

Elissa Alvarez, 20, and Jose Caballero, 40,were tried and convicted of having sex in public on Bradenton Beach, July 20, 2014.

The stunning part of the story wasn't the guilty verdict, even though it was never proved the "sex" was anything more than a lap dance on a beach blanket. What bowled me over was the consequence. The possible prison sentence for two counts of lewd and lascivious exhibition is 15 years.

Fifteen years -- think about that.

Federal prisons are full of white collar criminals who won't serve a day over five years, criminals who destroyed companies and bilked citizens out of their life savings.

And over the years I remember neighbors -- citizens of the Treasure Coast -- killed by drunk drivers who never served a day in prison even though they were found guilty of DUI manslaughter.

Because witnesses testified a 3-year-old girl saw them, Alvarez and Caballero willhave to register as sex offenders. They might as well carve a mark on their foreheads. According to NOLO's Criminal Defense Law website,anyone forced to register as a sex offender "faces a lifelong challenge of finding work and housing." But you probably knew that already.

Would I call the Bradenton couple's behavior selfish, thoughtless, inappropriate and dumb as a post? You bet I would. It was broad daylight and they weren't even close to alone on that beach.

"Did they try to cuddle or do it discreetly? Did they go in the water where people couldn't see?" State Attorney Ed Brodsky asked the jury. "Did Ms. Alvarez try to drape a towel over herself or anything? They didn't care."

OK, but then I think, not so many weeks ago it was Spring Break. Remember Spring Break, when kids from colleges all across America flock to Florida beaches, as they've been doing since the 1960s? And, I promise you, this year -- like every year -- there was "inappropriate behavior" with a capital "INAPPROPRIATE" going on at every one of them.

How many "lewd and lascivious" arrests do you think there were during Spring Break? If the number reached half a dozen on all those beaches combined, I would be amazed.

It's true, there is one law for dumb people likeCaballero and Alvarez, and another law for dumb out-of-state college kids. I don't think this couplerealized that or they would have listened to their lawyers who begged them to agree to the plea bargain. They believed they'd done nothing wrong. Read Kate Irby's stories in the Bradenton Herald here and here.

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.

Julie Stewart, president and founder of Washington, D.C.-based Families Against Mandatory Minimums, summed up my opinion of all this in a prepared statement on the organization's website:

"As outrageous as Mr. Caballero's behavior was," she said, "it would be even more outrageous for the state to make him spend 15 years in prison. 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.

This is a case where the punishment required by law is far worse than the crime. Not surprisingly, it is the unintended consequence of a mandatory minimum sentencing law being applied to a situation that lawmakers could not have foreseen when they passed it, Stewart said.

The mandatory minimum walls are finally beginning to crack in Florida. In 2014, Reps. Katie Edwards, D-Plantation, and former Rep. Dave Hood, R-Daytona Beach, spearheaded the passage of HB 99, which with Senate Bill360,allows nonviolent, first-time offenders caught with small amounts of hydrocodone to go to drug court rather than prison. According to a state report, it saves the state $47 million over five years by sending nearly 500 fewer people to prison.

"Our trafficking laws don't distinguish between a person in possession and a person who is selling," Edwards explained. "We recognize that it doesn't make sense financially, or otherwise, to send someone to state prison for three years under a mandatory-minimum sentence for possession of seven hydrocodone pills."

Florida lawmakers are drawing a bead on sentences that make no sense for those convicted, their families, or taxpayers. Change is happening in the Sunshine State, even if it's not an overnight thing -- even if it's unlikely to help Jose Benjamin Caballero, who will be 55 when he is released from prison.

In the meantime, my 2 cents worth of advice: Dads and moms, don't let your babies grow up to be breakers -- at least give them a lesson or two on respect for other people and how to behave in public. And make sure they understand the beach counts as public.

Reach Nancy Smith at or at 228-282-2423. Twitter: @NancyLBSmith.

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