MANATEE -- Manatee County Judge John Lakin is about to deliver a ruling with implications extending beyond a Manatee County carjacking case.
Should a 17-year-old -- who committed a violent crime when he was 15 and charged as an adult -- be given a chance to earn a place back in society or should he be incarcerated to protect society?
At 10:30 a.m. Tuesday in Courtroom 8A of the Manatee County Judicial Center, Fernando Cabrera, 17, of Bradenton will come before Lakin for sentencing in a carjacking case that occurred when Cabrera was 15.
The judge has said he will make his mind up about 90 minutes later after he has heard argument from the state and defense.
The state will ask Lakin to sentence Cabrera to 20 years in state prison,
The prosecution claims Cabrera put a bandana around his nose and mouth with a dark hoodie over his head when he demanded money at gunpoint at 1 a.m. Feb. 4, 2011, from a terrified woman at the Walmart on State Road 70.
When the woman said she had no money, the state alleges Cabrera and accomplice, Prince Pichardo, then 16, drove off in her car after snatching her cell phone.
The two were later apprehended at the Walmart in Palmetto.
Pichardo, now 19, is already serving 20 years in state prison for the crime.
"I think carjacking with a firearm and robbery by sudden snatching aren't the typical sentences that the community would consider minimal," said state prosecutor Anthony Dafonseca. "You are forcefully removed from your vehicle at 1 a.m. in the morning by people wearing bandanas. This has to be one of the most terrifying experiences that any victim can encounter in Manatee County."
Cabrera, a member of the SUR-13 Manatee County street gang, has continued to express loyality to the gang in jail for the past two years, Dafonseca said.
He has not been a model prisoner having gotten into fights, Dafonseca said. He was coming up in the gang and would assume a leadership role if released, according to the prosecution.
It would also be grossly unfair to have one person convicted for 20 years and the other released on probation after two years for virtually the same crimes, Dafonseca said.
Andrea Flynn Mogensen, a Sarasota lawyer defending Cabrera, will approach Lakin with a different story.
"I will ask for youthful offender treatment in this case," Flynn Mogensen said Monday. "This is Fernando's first offense. And, he stayed on the passenger side of the car during this whole event."
Under a youthful offender sentence, Cabrera would get six years with any combination of jail time and probation. Flynn Mogensen will ask Lakin to credit Cabrera for two years already served in jail and four more on probation.
As for the gang involvement, Flynn Mogensen said the state has to prove her client was actually a gang member and not just a wannabe.
"I am sure the state will provide evidence of people that Fernando knows," Flynn Mogensen said. "But we do have a Constitutional right to associate with whom we please."
As for her client's prison record of fights, his attorney said the 5-foot-6, 120-pounds Cabrera had a difficult time being a 15-year-old boy in an adult male facility.
Lakin made it clear what is on the line when he addressed the state and defense in a short hearing Monday that will be continued today.
"We have to balance to right of society to be protected from someone who is violent with the plight of an youthful offender whose crime was his first offense," Lakin said.
This case has had some twists and turns.
Cabrera first first pleaded guilty to the crime and was sentenced to 20 years, just like Pichardo. But Lakin withdrew his guilty plea based on inadequate legal assistance, was granted a jury trial and convicted by unanimous vote of a jury April 5.