The Court in Florida’s Fifth District Court of appeals affirmed the conviction but remanded the sentence (before a different judge) of a man who was sentenced to 100 years for CP. The opinion in Berben v. State, came out this past Friday.
Berben was found guilty of twenty counts of knowingly possessing, controlling, or intentionally viewing images depicting child pornography. The trial court then imposed twenty consecutive five-year sentences for a total of 100 years.
“When imposing the sentence, the trial court made specific and unsubstantiated comments, concluding that Berben had actually distributed the pornographic images and further equating such conduct to actual, physical or sexual abuse of a minor… Further, the trial court saw “little difference in the culpability between those who actually sexually abuse and exploit children and those who encourage and promote conduct by downloading and sharing videos of such,” neither of which Berben was charged with.” As one of the concurring opinions mentioned, “Make no mistake, those who possess child pornography face lengthy prison sentences. However, they are not generally sentenced to life in prison.”
The other interesting part of this order was that the Judges took it upon themselves to make the correct legal argument on behalf of the Defendant. They note that the issue on which they were basing their decision on was not preserved or argued in the Appeal. However, they pointed out that an appellate court can address errors on it’s own volition if it is determined to be fundamental and is apparent on the face of the record.