Defense of Child Pornography Charges in Port Charlotte, Florida
Law enforcement officers and prosecutors in Port Charlotte, Florida, pursue child pornography charges zealously. Law enforcement agencies operating in Port Charlotte devote a significant amount of resources to identifying individuals involved in the dissemination, possession, or production of child pornography. Likewise, state and federal prosecutors relentlessly fight for convictions, long prison sentences, and harsh terms of probation after release from prison, or seek an order of involuntary commitment to prison as a sexual predator.
Even though police and prosecutors fight zealously for convictions, they are not always right. Sometimes innocent people get caught up in undercover police stings, make mistakes when operating their computer, or accidentally locate images that they did not want to see. People caught in these situations should declare their innocence and defend their freedom as zealously as law enforcement officers and prosecutors worked to apprehend the innocent person.
Remember that accusations of criminal behavior are nothing more than the state declaring that it possesses evidence amounting to probable cause to take a case to trial. A jury alone must decide whether the evidence put forward by the prosecution is enough for a conviction after the accused receives a fair trial. Frequently, law enforcement officers and prosecutors make mistakes in their investigation and presentation of evidence because of their one-track-minded approach to apprehending and prosecuting people accused of child pornography offenses.
Law enforcement investigators often rush to judgment when combing through evidence. As a result, officers frequently do not consider the possibility that the evidence they have accumulated has an innocent or logical explanation. Additionally, their haste to charge offenses related to child pornography force them to make mistakes that violate the suspects’ constitutional rights to be free from unreasonable searches and seizures or violate their Miranda rights. Also, police and prosecutors often do not look at third-party culprits who might have committed the crime instead of the person the police and prosecution suspect committed the crime. These mistakes leave the door open for people in Port Charlotte facing child pornography charges or under suspicion for involvement in child pornography an opportunity to be exploited by a seasoned Port Charlotte child pornography defense attorney.
Discrediting the police and prosecution’s case by calling attention to the mistakes the state made in its case will help the accused at trial. However, the average juror could look past those mistakes simply because of the type of charges the accused faces. The only way a person charged in with charges relating to child pornography in Port Charlotte, Florida, could receive a fair trial is to seek the advice and counsel of experienced, savvy, and dedicated Port Charlotte child pornography defense lawyers from Musca Law. Musca Law’s Port Charlotte criminal defense attorneys are dedicated to protecting their clients’ rights.
Musca Law’s criminal defense attorneys understand that facing child pornography charges is embarrassing and could ruin someone’s life even if the accused is innocent. That is why Musca Law’s Port Charlotte child pornography defense lawyers fight on behalf of their clients to give them the best defense possible. Musca Law cannot guarantee success; but can guarantee that all of the firm’s resources, knowledge, and more than 150 years of combined criminal defense experience in Florida will provide their clients facing Port Charlotte child pornography charges with sophisticated, case-specific defense strategies to reduce the risk of conviction and imposition of harsh prison terms. Contact Musca Law today at 888-484-5057 to engage Port Charlotte child pornography defense lawyers dedicated to protecting the rights of the accused.
Charlotte County Child Pornography Allegations
Possession of child pornography in Florida is a third-degree degree felony, punishable by up to five years in the state prison. The maximum fine allowed for each conviction of a third-degree felony in Florida is $5,000.00.
The prosecution can elect to bring out one count for each image possessed by the accused. Additionally, the prosecution has the discretion to ask for the maximum punishment for each count upon which the accused stands convicted and ask the judge to run each sentence consecutive to one another. Running prison sentences consecutively is also known as a “from and after” prison sentence. Therefore, a person who is arrested in possession with ten images of child pornography is exposed to a potential 50-year prison term; that is five years’ imprisonment for each photograph, with each five-year sentence run consecutively.
The sentencing judge will impose probationary terms as well after a conviction for possession of child pornography. Conditions of probation will include staying away from having no contact with children under the age of 18 unless otherwise supervised by another adult, refrain from using the Internet except for legitimate business purposes, staying away from particular locations frequented by children such as public libraries and schools, as well as attending sex offender classes. The court could fashion other terms of probation as deemed necessary by the individual case. Moreover, the facts of the case could warrant the convicted offender to register as a sex offender in Florida.
Possession under Florida law is an essential element of the crime that the prosecution must prove beyond a reasonable doubt. In its simplest form, possession can be actual or constructive. Actual possession means physically holding or controlling an object. Constructive possession requires knowledge of the item and its location, as well as simultaneously having the specific intent to “exercise dominion and control” over the object. Possession does not need to be exclusive. Rather, possession can be joint. Possession can also be temporary, provided that the individual has the intent to exercise dominion and control over the item. However, as will be discussed below, temporary possession of child pornography could be a defense to these charges.
Federal law prohibits possession of child pornography. Federal law enforcement agents frequently conduct undercover stings designed to infiltrate child pornography distribution rings. These investigations target the possessors of child pornography as well as those who distribute and even create. Federal prosecutors obtain jurisdiction over possession of child pornography if they prove that the image was somehow transmitted through a federally protected delivery service such as the Internet or the United States Postal Service. The federal authorities could acquire jurisdiction to prosecute an offense if the images were transferred by private shipping companies engaged in interstate business transactions.
As with many federal charges, the prison sentence for possessing an image of child pornography is much harsher than the maximum penalty under Florida law. Under the federal sentencing scheme and guidelines, the maximum prison sentence is fifteen years committed to a federal penitentiary.
Exposing a Minor to Child Pornography
As a general proposition, pornography such as images depicted through videos accessible online or in magazines lawful to possess in Florida. However, exposing a minor to pornography in Florida is a crime. Under Florida law, any individual who shows pornography — not necessarily child pornography — to a person younger than eighteen-years-old can be convicted of a first-degree misdemeanor. The penalty for a first-degree misdemeanor in Florida is a one-year committed jail sentence along with a fine that does not exceed $1000.00. On its face, the charge itself does not seem to be overly serious, considering that exposing a minor to pornography is a misdemeanor charge. However, the Florida legislature considers this crime one of a sexual nature, and a conviction for this crime would require the individual to register as a sex offender. Besides, a person convicted of a subsequent offense of exposing a minor to pornography commits a third-degree felony and possibly faces a 5-year state prison sentence.
Distributing Child Pornography
Distributing child pornography is a serious offense at the state and federal levels. In Florida, a conviction for distribution of child pornography is defined as a second-degree felony and carries the potential of a fifteen-year maximum state prison sentence. Additionally, the maximum fine is $10,000.00.
To win a conviction for distributing child pornography in Port Charlotte, Florida, the prosecution bears the burden to prove beyond a reasonable doubt that the accused either knowingly distributed, advertised, produced, or dispensed visual imagery that shows a person under eighteen-years-of-age engaging in a sexual act. As with possession of child pornography, the prosecution can charge the suspect with a series of charges or one charge that encompasses all of the unlawful acts. Additionally, the state’s attorney has the discretion to request consecutive sentences for each criminal offense for which the person stands convicted.
As with all charges involving sexual offenses and children, the person convicted of distributing child pornography must register as a sex offender.
Manufacturing Child Pornography
Distributing in manufacturing John pornography are similar offenses under Florida law. A person who creates an image that shows another under the age of eighteen committing a sexual act could be convicted of manufacturing child pornography. Additionally, a person who solicits another to participate in the creation and manufacturing of child pornography is also guilty.
Manufacturing child pornography is considered a second-degree felony in Florida. Any person convicted of manufacturing of child pornography faces up to 15 years in a Florida State penitentiary, along with a $10,000 fine. Moreover, the person convicted of that charge will be required to register as a sex offender and could face a civil commitment as a sexual predator under Florida law.
Sentencing Guidelines in Florida for Child Pornography Charges
Florida’s Criminal Procedure Code establishes a uniform method of determining an appropriate prison sentence for a convicted offender. Florida’s Criminal Procedure Code requires the sentencing judge to examine how the crime impacted the victim, the severity of the criminal offense, the previous criminal history of the person convicted, In addition to many other considerations involving the convicted offender’s background, social history, education, work history, history of illnesses, and history of mental illnesses if any. The Criminal Procedure Code does not limit the sentencing judge to imposing one prison sentence for all crimes.
As discussed above, a judge could run each sentence from and after each other if the judge deems such a sentence structure is appropriate. However, the sentencing judge has the authority to lower the sentence recommended by the sentencing guidelines if warranted under the circumstances. Therefore, a strong advocate for justice from Musca Law can help a person convicted of child pornography offenses avoid a lengthy prison sentence by convincing a judge that a downward departure from the sentencing guidelines established under Florida’s Criminal Procedure Code is just under the circumstances.
Other Charges Commonly Charged with Child Pornography Offenses
Child pornography offenses could be charged by themselves or in conjunction with other sexual offenses. Charges such as sexual battery, sexual assault, statutory rape, sex trafficking, lewd and lascivious acts with a minor, and fondling of a minor, are just examples of some charges that people face when also charged with child pornography offenses.
In Florida, anyone under the age of sixteen cannot consent to perform a sexual act because, under Florida law, the person has no legal right or ability to consent. Even if the person vocalizes agreement and gives what appears to be consent, that consent is not valid because the person is not old enough to give it. As a result, consent may not be a valid defense in every case; but it could be a valid defense in certain cases if the age of the person depicted in the video or photograph could be ascertained. It is important to recognize that the person must be of sufficient age to consent when the imagery was created.
Collateral Issues When Facing Child Pornography Charges
Collateral issues are any legal problems that arise as a result of a criminal charge not directly tied to a fine, incarceration, or probation for the offense if convicted. Collateral issues in Florida include registering as a convicted sex offender after being released from incarceration, facing involuntary commitment to a treatment facility as a sexual predator, wearing a GPS device at all times, and facing deportation if the person is not a citizen of the United States.
Additionally, terms of release could include orders to stay away from children without sufficient supervision, not to work around or near children, not to live near children, and not to engage employment opportunities that could place the convicted offender in contact with people under eighteen years-of-age.
Defending Against Child Pornography Charges
Child pornography charges are no different than any other criminal charge in that each person has the right to a fair trial guaranteed and protected by the United States Constitution as well as the Constitution of the State of Florida. Included in those rights to a fair trial is the right to confront and cross-examine the accusers, the right to a jury fair made up of impartial citizens, the right to produce witnesses to testify behalf of the accused, and to obtain all the evidence the prosecution seeks to admit against the accused at trial. Moreover, a person has the right not to incriminate himself or herself; however, the person could waive that right and testify on his or her own behalf at trial.
A Port Charlotte child pornography defense lawyer who has substantial trial experience will have the knowledge to devise a strong defense that demonstrates the weaknesses of the state’s case and leads the jury to the inescapable conclusion the prosecution failed to prove the defendant guilty beyond a reasonable doubt. Since no two cases are alike, each case will present its unique challenges and weaknesses.
Possession of child pornography charges requires proof of legal possession, as discussed previously. Accordingly, the police must acquire evidence of possession to prove the accused guilty. The prosecution can only charge possessory offensive if the police seize evidence.
Seizing evidence from a person implicates the constitutional rights of that individual. Therefore, a wise and often effective defense strategy is to challenge the constitutionality of the police officers’ actions and filed motions to suppress all the evidence seized by the police. Most often, police officers who are investigating child pornography offenses you search warrants to seize computers and other digital devices they could possess child pornography and conduct forensic examinations of the digital devices to extract the unlawful images. If the police cannot establish probable cause to request a warrant, then the judge must suppress, or exclude from admission at trial, all of the evidence seized according to the faulty search warrant.
Another constitutionally protected area involves interrogations of suspects. When an individual is in custody and investigators ask questions, the police must advise the individual of warnings required by the Miranda decision. If the police do not correctly advise the suspect of the Miranda warnings properly, then the judge could throw out any statements the accused made during the interview with police.
Another defense is available to certain individuals based on entrapment. Trapping cases are occasionally successful if the police used unfair strategies to convince an otherwise innocent person To commit a crime. The prosecution constantly has the burden to prove that the police did not entrap the accused. Failing that, the jury must acquit the suspect.
Even if the search warrant to obtain evidence is valid, other trial defenses could prove to be extraordinarily successful. For example, arguing that the possession was temporary and unintentional could be persuasive to a jury, especially if the individual navigates away from the image and deletes the offensive imagery. Additionally, a thorough investigation could reveal the age of the participants in the alleged child pornography. If the individuals were up he lawful age to consent, then there would be a complete defense to the charges of child pornography because the people involved were, by definition, not children. Lastly, a savvy child pornography defense attorney could argue that the imagery depicts erotica rather than pornography. The argument is highly nuanced and must be reserved for particular cases. However, in the right circumstance, arguing that the photograph is erotica rather than child pornography could win an acquittal.
Call Musca Law Today for Immediate Help with Your Case!
Musca Law’s Port Charlotte defense attorneys are with your 24/7 to defend your rights. Call 888-484-5070 right now to discuss how Musca Law could help you with your Port Charlotte Child Pornography case. Delaying will only hurt your chances of winning justice.