Polk Law Blog

Two defendants, both educators, were recently found guilty of sexual offenses involving minors in Polk County. The two crimes were very different, but they both received the same sentence.

Criminal Number One,  John Stelmack, was the principal at a Polk County elementary school. He acquired some (non-pornographic) photographs of a couple of very young female students he knew, cut their heads out, and attached them onto pornographic pictures of adult women. He was charged with five counts of possession of child pornography¹ and found guilty in a trial by jury. He was sentenced to five years in prison.²

Criminal Number Two was a math teacher at a Polk County high school. He offered to give a 16-year-old student a better grade if she performed oral sex on him. The cops outfitted her with a wire and sent her to talk to him. The conversation progressed to a point at which he pulled down his pants and the cops came barging in to arrest him. Verdict: also guilty, also sentenced to five years.

The Questions: Do these men deserve the same sentence of five years? How did they get the same sentence? Were there any other options available to the judges that heard the cases?

The Answers (my answers, anyway):

Both of the offenses are third degree felonies. The first offense is a third degree felony because it is classified as a third degree felony by the law that defines it, Fla. Stat. sec. 827.071(5). The maximum penalty for a third degree felony is generally 5 years. Because Stelmack had 5 counts against him (there were five photographs at issue), in theory he could have gotten up to 25 years(!), but the Court gave him 5.

The second offense is an “attempt” or “solicitation”³ to commit what most people would think of as “statutory rape”⁴. This crime is defined by law as a second degree felony in Fla. Stat. sec. 794.05. A second degree felony carries a maximum sentence of 15 years. However, for sentencing purposes, an “attempt” crime is classified as one degree lower than the underlying offense⁵. Thus, Tillis was sentenced as if he committed a third degree felony which has a maximum sentence of up to 5 years. The judge gave him the maximim so he will do the same amount of time as Mr. Stelmack, unless one or both of them are released early.

Does this strike anyone other than me as fundamentally incorrect? Stelmack’s crime could have been committed with a school yearbook, scotch tape, a pair of scissors, and a Playboy magazine.  How could it be that he was sentenced identically to someone who was about to actually have sex with a minor? Remember that Stelmack could have gotten a total of 25 years, while Tillis could only have been sentenced to a maximum of 5. I suppose one could argue that Stelmack was potentially more dangerous because of his pedophilia, but was the actual crime he committed of a similar level of severity?

A more modern approach is to classify “attempt” and “solicitation” crimes the same as the underlying crime for sentencing purposes (except for some special situations, like death penalty cases). This would have had the effect of making Tillis eligible for a maximum 15-year sentence. The theory behind this approach is that if you intended to go through with the crime and actually attempted to go through with it, you are just as bad a person as someone who happens to be successful. That makes intuitive sense to me. The judge would still be able to reduce the sentence if the mere “attempt” warranted it, but would not be required to do so if it didn’t.

Were I the judge, I think I would have liked the freedom to sentence Tillis to more time. I am bothered by the fact that these two guys got the same sentence.

I’d be curious to hear other people’s thoughts on this. If the law had permitted him to, should the judge have given Tillis more than 5 years? Do you view actions of Stelmack or Tillis as deserving of more time behind bars?

1. Technically, the charged offense was “Possession of a photograph of a sexual performance by a child.” [↩]
2. His case is currently on appeal, presumably on the grounds of whether the pasted-together images are really child pornography or not, a completely different and very interesting question. I will keep an eye on it and report any developments. [↩]
3. Legal scholars refer to attempt, solicitation, and conspiracy crimes as “inchoate” offenses. [↩]
4. In Florida, in this particular version, we officially call it “Unlawful sexual activity with a person 16 or 17 years of age.” [↩]
5. Fla. Stat. sec. 777.04 [↩]