Many of our clients charged with solicitation to commit prostitution are often first time offenders. It is understandable that they experience significant stress associated with their recent law enforcement encounter. These clients also undergo a great deal of uncertainty in connection with their upcoming court appearances. Recently, the Florida legislature has added to their concern. Florida Statute Section 796.07(6) now provides that in addition to other criminal penalties, a person who violates this law shall be assessed a civil penalty of $5,000.00 if the violation results in any judicial disposition other than acquittal or dismissal.
What if there was an Absence of Sexual Activity or Payment?
The great majority of our clients who find themselves facing this offense, got there because of an undercover police sting operation. It is important to first understand that a sexual offense need not actually occur for an individual to be guilty of this charge. To the contrary, it is a violation of the criminal law to simply “solicit,” “induce” or “entice” another to commit “prostitution, lewdness or assignation.”
The word “prostitution” is defined, as “the giving or receiving of the body for sexual activity for hire.” Lastly, the term “sexual activity” is defined to include “oral, anal or vaginal penetration by, or union with, the sexual organ of another.” It also includes “the handling or fondling of the sexual organ of another for the purpose of masturbation.”
The bottom line... the offense is committed when there is an offer offer of money in exchange for sexual activity. It not necessary for the prosecutor to show that sexual activity took place or that money was exhibited or exchanged. You can gain a more thorough understanding of this criminal offense, along with defenses and possible solutions by reading our solicitation of prostitution website page.
What if I Am Guilty of Solicitation?
- If you are adjudicated guilty, you are subject to the new $5,000.00 civil penalty. Oddly enough, the legislature mandates the civil penalty even where the court agrees to impose a withhold of adjudication that would otherwise avoid a formal conviction.
- In addition to the civil penalty, the judge is required to impose fines or cost costs in the amount of $450.00, along with $50.00 cost of prosecution and the reimbursement of investigative costs sought by the arresting agency (approximately $50.00);
- You can anticipate that you will be ordered to secure a screening for HIV and sexually transmittable diseases;
- In addition, if you used a motor vehicle in the commission of the offense, the DHSMV will impose a mandatory and automatic revocation or suspension of your drivers license. See: Florida Statute Section 322.26(7);
- If the offense occurred in St. Petersburg, local ordinance Section 20-122 makes your vehicle subject to seizure and impoundment. Release and return of your vehicle necessitates the payment of a $500.00 civil penalty.
Convincing the Prosecutor to Drop the Charge
In the majority of these sting operations the undercover female police officer is provocatively dressed and wearing a wireless microphone. The audio transmission is simultaneously monitored by back-up officers in marked cruisers who are hidden from view. Although the primary purpose of the wireless audio transmission is for officer safety purposes, we can secure a copy of this recording. A thorough examination of the conversation that took place between you and the under cover officer is essential. Some police officers are very savvy with their language. For example, they might use an innocuous or harmless statement such as “what are you looking for?” This could arguably be interpreted as meaning “are you lost?” Are you looking for the post office? Are you looking for a particular address?, etc. Unfortunately,some of our clients “take the bait” and will respond in an incriminating manner such as, “how about a blow job for $50.00?” On the other hand, we have listened to other recordings and found entrapment defenses and over zealous undercover police officers who “cross the line.” In other words, the criminal charge might be subject to dismissal because the under cover officer herself was primarily responsible for facilitating the proposition.
Armed with the audio tape and a transcript of the conversation, we may be able to convince the Pinellas County State Attorney’s Office that not pursuing a prosecution would be in the best interests of justice. In that case, you would avoid the $5,000.00 civil penalty, along with the sanctions associated with a criminal conviction. Thereafter, you may be eligible to have your criminal records sealed or expunged.
Getting the Charge Dismissed
Talk to us about who is the judge assigned to your Pinellas case and your eligibility to enter a diversion program called Pre-Trial Intervention (PTI). Most clients find that completing the program takes neither a lot of time or effort. Your primary responsibility is to avoid being rearrested within a twelve month period. Best of all, your successful completion of the program will result in the dismissal of the solicitation charge. In many cases, clients are thereafter eligible to have their criminal records sealed.
Getting the Charge Amended
Another potential strategy is to persuade the prosecutor assigned to your case to amend your charge from Florida Statute Section 796.07(2)(b) to Florida Statute Section 796.07(2)(f). A close reading of these two statutes will reveal that the alleged prohibited conduct is very similar. However, the Florida legislature only made the $5,000.00 civil penalty applicable to violations of Florida Statute Section 796.07(2)(b). Both statutes represent the same level or degree of misdemeanor violations of the law and would otherwise carry similar sanctions, but for the $5,000.00 civil penalty.
Why might a prosecutor agree to amend the charge?
A.) A prosecutor may be persuaded that imposing a civil penalty that is ten times the amount of the statutory fine and cost of prosecution is unreasonable.
B.) A prosecutor may be persuaded that imposing a civil penalty that represents one-hundred times or more than the amount associated with the offer of solicitation is unreasonable. For example, a $5,000.00 civil penalty is grossly disproportionate to the facts of a case that entail an offer of $50.00 in exchange for oral sex.
C.) A prosecutor may be persuaded that the legislature’s calling the $5,000.00 sanction a “civil penalty” is nothing more than “semantics.” Let’s face it, the $5,000.00 is nothing more than an additional fine. In that regard, the $5,000.00 amount violates Florida Statute Section 775.083(e) which limits the fine in solicitation cases to no more than $500.00.
The $5,000.00 Civil Penalty May be Unconstitutional
In the case of State v. Javares Jones (12-21991MM10A), Broward County Judge Kenneth Gottlieb ruled that the mandatory $5,000 civil penalty amounted to “an excessive fine” and “cruel and unusual punishment.” As such, he found that the new “civil penalty” statutory provision to be in violation of the Eighth Amendment to the U.S. Constitution. Although this ruling could be persuasive, it is not currently binding on our Pinellas judges. The Javares decision is pending appeal in the Fourth District Court of Appeal. The Second District Court of Appeal is currently reviewing this very same issue in State v Cotton 2D 14-2679.
If the Appellate Courts agree that the $5,000.00 civil penalty is unconstitutional, our Pinellas County Judges will thereafter be prohibited from ordering you to pay this sum of money. If the facts of your case do not warrant dismissal by the prosecutor and your prior record makes you ineligible to participate in the PTI program, we may elect a strategy to postpone your case pending the formal findings in the State v. Javares and State v. Cotton appeals.
Protect Your Reputation & Your Finances
If you are facing a solicitation of prostitution charge, both your reputation and finances are in jeopardy. We understand that you may feel uncomfortable, but we can help! Schedule a free confidential consultation to discuss the facts of your case and your options.
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