Defense attorneys representing some of the men arrested for solicitation during last month’s prostitution sting in Indian River County say their clients might have been overcharged – and not by the massage spas.

State Attorney Bruce Colton said Monday all of the johns arrested were charged with first-degree misdemeanors under Florida Statute 796.07 (2)(f), which makes it unlawful to “solicit, induce, entice or procure another to commit prostitution.”

The defense attorneys say they could successfully challenge the first-degree charge if they can prove the alleged spa prostitutes initiated the solicitation, or prosecutors can’t prove that the johns did.

Merely engaging in prostitution is a second-degree misdemeanor, which carries a significantly lighter penalty.

“Based on the affidavits I’ve read, the vast majority of these men have been overcharged,” said Vero Beach attorney Andy Metcalf, who represents more than two dozen of the men busted during the sting. “Solicitation and participation are not the same thing.

“The state is going to have to prove the men solicited, induced, enticed or procured the women to commit the act,” he added. “How do you prove that without testimony from the other person in the room, especially if you don’t have audio?

“Now, if you’re charging them with a second-degree misdemeanor, you simply need to prove someone engaged in prostitution.”

The penalties for a first-degree misdemeanor pertaining to prostitution include: a $5,000 fine, 100 hours of community service, mandatory attendance at an educational program on the negative effects of prostitution and human-trafficking, and one year of probation.

A judge also could impose a sentence of up to a year in jail, but it’s rare for first-time offenders.

A person convicted of a second-degree misdemeanor pertaining to prostitution faces only a $500 fine, up to 60 days in jail or both.

Prosecutors are offering first-time offenders plea deals that include all of the above-mentioned, first-degree penalties with no jail time, plus nearly $900 in other costs – but adjudication of guilt would be withheld.

That means the men would not be convicted of a crime, as long as they fulfill the terms of the deal, and any criminal record eventually may be sealed.

“I think it’s a fair offer,” Colton said, adding that he expects many of the men to accept the deal rather than go to trial and risk further public scrutiny.

Colton said prosecutors have video of all 160-plus johns arrested in connection with the Feb. 19 raids.

He said those videos likely would be used as evidence and played in court if the men opt to go to trial.

However, Metcalf and other defense attorneys say they expect some of their clients to take their cases to court.

One challenge to the first-degree charge could come from the affidavit used by Vero Beach police to obtain warrants, Metcalf said, citing an undercover officer’s sworn statement that the women working in the now-closed East Spa on 14th Avenue initiated the solicitation.

He said he’s prepared to file court motions seeking the identities of the alleged prostitutes so they can be questioned.

“To prove the first-degree misdemeanor, the state has an obligation to divulge the names of the women involved in this,” Metcalf said.

Colton defended the decision to file first-degree charges, saying the “procurement part” of the statute meets the legal criteria.

He also said he expects defense attorneys to challenge the warrants, “but I think we’re on solid ground there.”