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.
Just want to flag this for you, but my understanding is that the court did not decide the issue on Eighth Amendment grounds, and in fact rejected the 8A claim without much discussion.
Doctrinally, I think this is important to realize because, at least in my understanding, there is nothing — conceptually — stopping the trial court that re-sentences him to giving him the exact same sentence so long as the judge avoids attributing conduct to the defendant that he did not engage in.
Thanks for the correction, Guy. The post has been updated. Appreciate you looking out.
I am surprised to see that the Fifth Circuit Court of Appeals (which are basically the same judges as the 11th circuit) chose to intervene in that sentence, seeing as how they refused to take me off supervised release simply refer refusing a nonsensical “treatment” regimen forced upon me for three months when I got out after an eight year term which followed a coerced plea, one count of which I was absolutely innocent of but was thrown under the bus by my public defender. The judge said I was at the low end of the scale, but she decided to go ahead and sentence me to lifetime supervision and lifetime registration.
What is hard to figure out for me is why the South Florida federal judgeship should be so full of “hanging” judges, much more so than any other circuit in other states and regions around the country.
It is the 5th DISTRICT court of appeals. It’s a STATE court.
The 11th Circuit is a FEDERAL court.
Totally different court.
Thank God. Every month I have thought of this case and the fact that such laws have destroyed this country. I was amazed to see this news. Maybe we still have a chance of not being as bad as Saudi Arabia on human rights.
100 years for a non-contact offense… The only people that should have been sent to Prison are the sentences judge and prosecutor for trying to take someone’s life away.
If the topic of CP wasn’t so radioactive, we would be able to state the truth which is that it is a SPECTRUM like anything else. All CP means is sexual images with people under the age of 18. This mean teens having sex and posting the video due to their own Stupidity would be enough to sentence someone looking at that video to 100 years apparently. That alone makes us arguably WORSE compared with any middle eastern country’s archaic laws. I won’t even mention that some of the so called “victims” (some) have admitted (this info is online) that they were fine with what they did but were mortified that the video was released by the idiot that released it and stole that privacy from them. That person should be locked up for quite a while. That we can all certainly agree with.
People should speak truth more often and stop hiding behind what they can and cannot say, or what is Politically Correct to talk about. Don’t be part of the ‘herd of sheep’. Think for yourself. Life isn’t Binary; It’s a spectrum.
A proper sentence would be five years prison and five years probation on two counts. The other 18 counts should not be non-pros.
Of course the elephant in the courtroom is the predilection of so-called judges to sentence a person in possession of child pornography to more time than an actual hands-on offender. They somehow believe a possessor will act out what he consumes. This is ludicrous. If this dogma were true, prisons would be full of gamers slaughtering hundreds on a daily basis.
5 years prison and 5 years probation? I don’t agree with you. That is way too much for this type of crime. Not to mention that the felony conviction and registry make it a life sentence for most. Probation and counseling is more appropriate in my opinion for first time offenders who view so few photos. Resources would be better utilized going after producers and tech giants who host such sites. There is no way that viewing CP is equal to molesting a child. The punishment simply does not fit the crime.
👏🏼👏🏼👏🏼 Well said👍🏼
The CP ignorant argument behind the ignorant CP laws is about the pre-crime agenda. If you haven’t seen the movie, Minority Report, watch it. It’s about the government convicting people for something they MIGHT do at some point in the future. It’s complete and utter BS.
But then again, the laws aren’t really about protecting kids or anyone at all. When did a law ever stop anything from happening? Have rape laws ended rapes? Have laws against murder stopped people from killing people? Have speed limit laws stopped people from exceeding speed limits? Do people still run stop signs and red lights? They do and I was recently nearly “taken out” by a large SUV that ran a red light.
I now understand the saying, “Laws are meant to be broken.” That’s the real intent behind the laws. TPTB profit from every law broken because the system is greed-based. They profit from every sovereign soul/slave they have in cages. They profit off affiliated businesses and GPS monitoring bracelets.
There is coming a day when there will be laws that will affect every person, like the adult vaccine mandate, part of “Healthy Human 2020”. Only there’s not one thing healthy about it. Forced medical procedures is what the nazis did…Bayer and IG Farben…to non-consenting Holocaust prisoners in violation of the Nuremberg Code.
That’s when the vaccine testing happened but it wasn’t in the name of making people healthy. It’s about genocide and next year will test Americans’ wakefulness when they can’t get a drivers license or passport to travel unless they get shot up with toxic aluminum and mercury in vaccines.
It’s bad enough they’ve been dumping sodium fluoride in public water supplies in violation of the US Constitution. This vaccine and RFID tracking of the vaccinated/unvaccinated is most definitely the mark of the beast prophecy fulfilling. Unless those who are on the frontlines fighting this prevail, you’re about to witness an epic tragedy in our history that will negatively impact every human being who is awake and aware of the bigger agenda with the SO thing being just one part.
Imagine…imprisonment for refusing to allow proven toxins injected into your sovereign body temple, in violation of our Creator who lives within us in their attempt to separate us from communicating with our Source. IT’S HAPPENING RIGHT NOW IN NEW YORK. They’re quickly coming for every single human being. I’m praying for rapid awakening across the country.🙏🏼
The sentence is absolute insanity. If the people who produced what he was viewing are caught, will they get the death penalty? And how about the tech companies that allow these sites to exist on the internet (I’m assuming that’s where the viewing took place) in the first place? What is their liability if what he did was worth a life sentence? Murderers often aren’t sentenced to life in prison. At least he will be getting a different judge.
For sure this is insanity. That is my question….what about the tech companies? With all this facial recognition and stuff they can’t put in filters for cp that would at least stop a good portion of it?
You are a couple of this information from an article that was posted on SOSEN ( http://sosen.org/blog/2018/01/19/an-explanation-of-some-legal-doctrines-and-other-legal-information.html ) that pertain to this situation the article goes into a number of little-known and little used legal doctrine that some people could use to their benefit many times we have to educate the attorneys because they don’t actually know these doctrines exist don’t misunderstand me attorneys are not stupid but the law is overwhelming and extremely complicated if you don’t believe me walk into a law library look at all the books no one can be expected to know all that information but better educated we are the better arm we are for our own defense.
US V. WINGENDER. 711 F2d 869 (9th Cir. 1983)
Presumption that sentences are to run concurrently places burden squarely on prosecutor and judge to affirmatively suggest and impose longer consecutive sentence, and thus resolves any ambiguity in favor of defendant.
US V. JONES. 908 F2d 365 (8th Cir. 1990) Wm US V. McNEESE. 901 F2d 585 (7th Cir. 1990)
Under BIFULCO rule of lenity, criminal penalties must be narrowly construed; any ambiguity in criminal statute, including sentencing, must be resolved in favor of lenity.
Another one that may be of interest is PAUL V. US. 734 F2d 1064 (5th Cir. 1984)
Convicted defendant has right to be present at his sentencing, and such right extends to resentencing as well. Rule 35 related.
Recognized that a parole officer who makes a change to a person parole or probation and increases penalties must do so at the will of the court in plain terms if he wants to increase restrictions he has to take you back in the court to change your sentencing
Thank you Will, but your references are Federal and this case is a Florida State Appellate court decision.
It’s been 20 years since I was a prison paralegal and work freelance for a couple of attorneys in Oregon. But at that time I worked on a number of appeals cases as well as constitutional discrimination cases both state and federal and in almost every situation we cited federal cases as well as state cases. At that time federal cases control over state decisions and that was one of the reasons we cited federal cases, even though we were in state courts. I know that a number of state judges hated the fact that we were citing federal cases. As well as citing state cases that were with in the ninth federal district outside of Oregon. One of the attorneys told me that we do that to preserve the challenge because they fully intended on taking it into the federal courts if they lost in the state. Of course we are talking about the state of Florida here, where they don’t think that federal law pertains to them and thereby federal decisions even by the United States Supreme Court shouldn’t apply to them.
What do we think the trial court will do at re-sentencing?
It’s unfortunate that a life sentence for image possession is not considered cruel and unusual. But at least now this ruling protects people from being sentenced for crimes we feel they “would have” done or for what we assume they must have done without being caught. If the trial court or prosecutor still want 100 years out of the petitioner, they are going to have to get awfully creative.
He will be resentenced before a different judge.