Hammocks Child Pornography Lawyer

Charged with possession of child pornography in The Hammocks

Possession of child pornography is a base level offense. In elevated child pornography charges that have more severe offenses, possession is a foundational element. An individual has possession of child pornography if he or she has in an area that is in his or her control a visual depiction that includes a minor engaging in sexual conduct. Under federal and state law, a defendant may be convicted for possession whether the defendant has actual possession or constructive possession.

Actual possession occurs when the defendant has the illegal material on his or her physical person or in an area that is within the defendant’s reach. Examples of actual possession include:

• the defendant having the illegal materials on a flash drive that is concealed on the defendant’s body
• the defendant having the illegal materials on a tablet that is under the defendant’s seat while he or she is driving
• the defendant having the illegal materials on a cell phone that is in the defendant’s pocket
• the defendant having the illegal materials on a laptop that is in a backpack that is on the defendant’s lap

Constructive possession is often more difficult for prosecutors to prove. A defendant has constructive possession of illegal materials if the materials are in an area over which the defendant exercises control even if the area is not in the defendant’s immediate proximity. Some straightforward examples of constructive possession include:

• the defendant storing the illegal materials on a laptop in his or her assigned desk at work
• the defendant keeping the illegal materials on an external storage drive that is kept in a private storage unit
• the defendant keeping the illegal materials on a flash drive that is in the trunk of the defendant’s vehicle
• the defendant having the illegal materials on a cell phone that is in the defendant’s personal closet at his or her home

If the illegal materials are found on a shared computer or in a communal space, it may be more difficult for a prosecutor to prove the defendant possessed the child pornography. Your Florida child pornography defense lawyer can challenge the prosecution’s ability to prove possession if the basis for the claim is highly subjective.

Under Florida law, possession of child pornography is a third-degree felony offense. The maximum penalty for possession of child pornography is five years in state prison and a fine of up to $5,000. Prosecutors charge a single count of possession for every sexual depiction of a minor the defendant is accused of having. If convicted on all counts, the defendant may be sentenced up to the maximum penalty for each count. Therefore, a defendant who is charged with 1,000 counts of child pornography can potentially be sentenced to up to 5,000 years in prison and fined up to $5,000,000.

Promotion of child pornography

Florida’s law against promotion of child pornography does not specify quantities of illegal depictions or the size of the viewing audience that meets the definition of promoting child pornography. State law defines promoting child pornography as manufacturing, selling, giving, transferring, publishing, distributing, or agreeing to do any such activities in relation to a sexual depiction of a minor.

Florida’s child pornography possession law includes a provision that allows state courts to presume an intent to promote child pornography if a defendant possesses three or more copies of a sexual depiction of a minor. Computers often make multiple copies of an image, including temporary copies if someone accesses the image, thumbnail images, and even a copy in the trash folder if the individual deletes the image. Therefore, a third-degree possession charge can very easily be upgraded to a second-degree promotion charge, which has a maximum penalty of 15 years in prison and a fine of up to $10,000.

If you accidentally received or accessed child pornography and attempted in good faith to delete the illegal material, contact a child pornography defense attorney. Our child pornography defense lawyer in The Hammocks FL will enlist the help of expert witnesses to provide evidence of your lack of intent to access the illegal material.

Transmission of materials harmful to minors

Florida law prohibits the transmission through electronic means of materials that are harmful to minors to people who are under the age of 18. The law does not list specific materials that are inherently harmful to minors, but the statute is most often used to prosecute cases in which the defendant sends sexual materials to someone who is younger than 18.

According to the statute, materials are harmful to minors if they primarily appeal to a prurient, shameful, or morbid interest that is patently offensive to prevailing standards among adults with regard to what is appropriate for a child. Courts also weigh whether the materials have political, artistic, scientific, or literary value for minors.

Unlike other child pornography offenses, transmission of materials harmful to minors does not require defendants to register with the state sex offender registry if convicted. Prosecutors sometimes offer defendants who are charged with other sex offenses a plea deal that requires pleading guilty to a charge of transmission of materials harmful to a minor in exchange for not requiring the defendant to register as a sex offender. An offense that does not require sex offender registration may be an appealing alternative to being convicted of a more severely penalized offense. However, defendants should always consult a reputable Florida sex crimes defense lawyer because they may be able to avoid criminal liability altogether by allowing their attorney to take their case to trial.

Use of a child in a sexual performance

Anyone who authorizes, employs, or induces a child to participate in a sexual performance may be charged and convicted for use of a child in a sexual performance under Florida law. The Florida law definition of the offense also includes parents, guardians, and custodians who give permission for a child for whom they are responsible to participate in a sexual performance. State courts apply a relatively broad definition of guardian and custodian in child pornography cases. People who do not have a legal or familial relationship to the child may be charged and convicted as well as people who in whose care the child has not been formally placed. Therefore, someone who is watching a child in a temporary capacity may be charged and convicted under the statute.

Florida’s child pornography laws and sexting cases

Sexting is not a crime when both parties are adults who have overtly consented to the exchange of sexually themed messages. However, when at least one party is a minor, sexting violates Florida’s child pornography laws. Florida’s criminal courts handle sexting cases in which one party is an adult and the other is a minor very differently than cases in which both parties are minors.

MINOR DEFENDANTS IN FLORIDA SEXTING CASES

When parents began to allow their children to have camera phones, computers, laptops, and tablets that have built-in cameras, Florida’s legislature and courts were faced with a new area in child pornography law. The availability of digital camera technology among teens and even younger children led to an increase in child pornography cases in which the defendants are minors. Most sexting cases in which the defendant is a minor are handled by Florida’s juvenile court system. However, in more severe sexting cases, the minor defendant may be prosecuted as an adult.

Minor defendants who have no prior charges for sexting are generally required to complete a course on the dangers of sexting, do eight hours of community service, and pay a fine of up to $60. The minor must either file an appeal with the court or complete the requirements within 60 days. If the minor defendant does not file an appeal or complete the requirements, the state may suspend the defendant’s driving privileges.

Minor defendants who have one prior sexting charge may be charged with a first-degree misdemeanor offense. If convicted, the defendant may be sentenced to a maximum sentence of up to one year in jail and a fine of up to $1,000.

Defendants who are younger than 18 years of age and have two prior sexting charges may be charged with a third-degree felony on the third occurrence. If convicted, the defendant may be sentenced to up to five years in prison and ordered to pay a fine of up to $5,000.

ADULT DEFENDANTS IN FLORIDA SEXTING CASES

Adults who are accused of sexting with a minor are charged under Florida’s child pornography statutes. Some laws state prosecutors use to charge adult defendants in sexting cases that involve minors include:

• possession of Child Pornography
• transmission of Materials Harmful to Minors
• promotion of Child Pornography
• use of a Child in a Sexual Performance

Child pornography defense lawyer in The Hammocks FL

If you are facing a child pornography charge in The Hammocks FL, you need an attorney who understands the potential complexities of state and federal child pornography laws. Our child pornography lawyer in The Hammocks is thoroughly experienced in navigating the complex nature and sensitive subject matter child pornography cases often involve. For a formidable legal representative who will protect your best interests, contact Joffe Law. A member of our team will review your case and determine how we can help.