Appellate court: Lake County judge erred with below-guidelines sentence on child porn case
The 5th District Court of Appeal has rejected a judge’s lighter-than-usual sentence for a man convicted of 26 counts of possessing child pornography.
Circuit Judge Heidi Davis sentenced James P. Avery, 42, to 10 years in prison followed by 10 years of supervised probation after he made an open no-contest plea. The state sentencing guideline called for 343.5 months, or about 28 ½ years in prison.
Avery was arrested in 2019 when the Florida Department of Law Enforcement learned that a computer on Butler Street in Leesburg was using a program to share images. Investigators found 291 images on his cellphone. One involved the rape of a 2-year-old girl, according to court records.
He was sentenced in June 2022 following a hearing that included character witnesses, who described him as a hard-working provider, and his wife of seven years, Rebecca.
The couple had a 3-year-old son and she was five months pregnant, she said. She said she was “terrified” at the prospect of raising two children alone, according to a transcript of the sentencing hearing that is on file with the Lake County court clerk.
“When James got arrested, I was in shock at first. I have never thought, even for a moment, that he would ever hurt anyone and I immediately saw how sorry he was," she told the court. "From that point on he has been completely honest about everything in his life, even things that were hard to talk about.”
Avery testified that he grew up in an abusive, chaotic home, and believed he suffered from post-traumatic stress from experiences in the military and as a military contractor in Afghanistan.
He blamed his experiences in the military for abusing alcohol and becoming addicted to porn.
He said he voluntarily saw a counselor and quit drinking. He self-reported depression. His attorney, Blair Jackson, presented a psychologist’s report concluding that he suffered from PTSD, major depressive disorder and “alcohol use disorder.”
His wife said she was proud of him for turning his life around.
Judge Davis was frank, according to the appellate court opinion, saying the crime carried a stiff sentence, “and without a reason for a [downward] departure, I really don’t have much.”
As for the psychologist’s conclusions, “I don’t know where she got that information unless it was from you.”
Jackson argued for probation, saying counseling in prison would be inadequate.
Davis agreed to the downward departure based on the psychologist’s evaluation “and the state has agreed to it coming in, your childhood, the active duty you’ve served, this doctor’s recognition of post-traumatic stress disorder and major depressive disorder, I am finding that that is a basis for downward departure.”
Prosecutors disagreed with the sentence, however, and filed an appeal with the appellate court.
The ruling sends the case back to Judge Davis. A new hearing will be held and new evidence, if any, will be heard.
Davis could not be reached for comment.
This article originally appeared on Ocala Star-Banner: Lake County child porn case: Sentence was too low, appellate court says
