Possession of Child Pornography in Florida

Under Florida Statute 827.071(5)(a), the crime of Possession of Child Pornography is defined as knowingly possessing, controlling, or viewing child pornography.

Child pornography includes photographs, motion pictures, exhibitions, shows, representations, images, data files, computer depictions, or other presentations that includes any sexual conduct by a child.

Sexual Conduct

Sexual conduct includes both actual or simulated sexual activity, actual lewd exhibition of the genitals, and actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or female breasts with the intent to arouse or gratify the sexual desire of either party.

Unit of Prosecution

Child pornography investigations usually result in the discovery of multiple images of child pornography. And while the term child pornography connotes the possession of multiple images, Florida law defines the possession of each image as a separate and distinct crime.

Consequently, each image of child pornography can be prosecuted as a separate count of Possession of Child Pornography. And most people arrested for Possession of Child Pornography are formally charged with 10s or 100s of counts of Possession of Child Pornography.

Penalties for Possession of Child Pornography

In Florida, the crime of Possession of Child Pornography is a Third Degree Felony and punishable by up to five (5) years in prison, five (5) years of probation, and a $5,000 fine.

Possession of Child Pornography is assigned a Level 5 offense severity ranking under Florida's Criminal Punishment Code. A judge may sentence a person convicted of a single count of Possession of Child Pornography to sex offender probation, but may also sentence the person up to the statutory maximum of five years in prison.

Multiple Counts

A person charged with four or more counts of Possession of Child Pornography would score a mandatory prison sentence under Florida's Criminal Punishment Code and, absent grounds for a downward departure sentence, a judge is required to sentence a person convicted of four or more counts of Possession of Child Pornography to prison, but may also sentence the person up to the statutory maximum of 5 years in prison.

As a result, a person charged with four counts of Possession of Child Pornography would be facing a mandatory prison sentence of 12 months in prison and would be facing an additional 4 months in prison for each additional count of Possession of Child Pornography the person is convicted of (i.e. A person charged with five counts of Possession of Child Pornography would be facing 15 months in prison).

Sex Offender Designation

A person convicted of Possession of Child Pornography would not only be placed on sex offender probation, but would also be designated a sexual offender. [1]

A designated sex offender is required to comply with sexual offender registration laws in Florida and throughout the United States for the remainder of their lives.

Defenses to Possession of Child Pornography

In addition to the pretrial defenses and trial defenses that can be raised in any criminal case, a specific defense to the crime of Possession of Child Pornography is:

Adult Depiction

It is a defense to the crime of Possession of Child Pornography that the images in question are entirely of persons over the age of eighteen (18) years of age (i.e. adults), even if one or more of the persons depicted appear to be under the age of 18. [2]

Transitory Possession

The crime of Possession of Child Pornography requires a person to either knowingly possess or intentionally view child pornography.

In some cases, people are unwittingly sent an image of child pornography, but immediately delete the image once they realize the illicit nature of the image. However, a thumbnail image may still reside on the person's electronic device or the image may still be in a memory cache even though the primary image was deleted.

In this scenario, the image was not intentionally viewed and any remaining thumbnail image or memory cache image was not knowingly possessed. Consequently, the transitory possession of an image under these circumstances would be a defense to the crime of Possession of Child Pornography.

Contact Criminal Defense Lawyer Richard Hornsby

If you have been arrested or charged with the crime of Possession of Child Pornography in Central Florida or the Greater Orlando area, contact Orlando Criminal Defense Lawyer today.

The initial consultation is free and I am always available to advise you on the proper course of action that can be taken.

References

  1. Florida Statute 943.0435
  2. Stelmack v. State, 58 So. 3d 874 (Fla. 2d DCA 2010)