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Possession of Child Pornography

Possession of Child Pornography in Florida

Florida Statute §827.071(5)(a) states that a person may be charged with Possession of Child Pornography if they knowingly view, control, or possess child pornographic materials.

This includes computer depictions, data files, images, representations, shows, exhibitions, motion pictures, photographs, and any other presentations, which show a child engaging in sexual activities or sexual conduct.

Sexual Conduct

This includes both simulated or actual sexual activity, actual contact with the unclothed or clothed genitals, female breasts, buttocks, or pubic area of a person, and the actual exhibition of genitals with the intention of gratifying or arousing either party's sexual desires.

Units of Prosecution

In investigations related to child pornography, the defendant may be found to possess multiple child pornography images. Under Florida law, each and every image is to be treated as a distinct and separate crime.

Therefore, it is possible to prosecute each child pornography image as a completely different count. Most individuals who are booked under this law get charged with hundreds of Possession of Child Pornography counts.

Applicable Penalties
This offense is considered to be a Felony of the Third Degree within the state of Florida. The court may impose any of these following penalties in any combination:
Fine not exceeding $5000
Probation period not exceeding 5 years
Imprisonment sentence not exceeding 5 years 

Aggravated Possession of Child Pornography
Florida Statute §775.0847(2) states that a person may be charged with this crime if they possess ten or more child pornography-related images. At least 1 of these images have to contain any one of these depictions –
A movie that involves child engaging in sexual activities, regardless of the sound quality and length; or
Sexual bestiality that involves a child; or
Sadomasochistic abuse inflicted on a minor;
A minor younger than 5 years of age;
Sexual battery that involves a child.
This offense is a Felony of the Second Degree in Florida. The court may impose any of these following penalties in any combination:
Fine not exceeding $10000
Probation Period not exceeding 15 years
Imprisonment sentence not exceeding 15 years 

It is worth noting that this is a derivative crime. That means, a person has to be found to possess at least 10 Child Pornography images, which are considered to be completely separate counts for legal purposes. Due to this, an individual may be convicted and found guilty of both Aggravated Child Pornography and Possession of Child Pornography, thus drawing an imprisonment sentence of a minimum of 41 months.

Sex Offender Designation

Any person who has been convicted under this charge will be placed on the sex offender probationary list and be designed as a sex offender. Such people have to remain in compliance with sex offender registration laws throughout the US and Florida for the rest of their natural lives.

Applicable Specific Defenses

Adult Depiction
This defense may be used if the pornographic images here are of people aged 18 or above, although they may look like they are under 18, due to the way they are depicted in the pornographic image.

Transitory Possession

In order for a person to be convicted under this crime, they are required to intentionally view or possess child pornography.
However, in certain cases, individuals are sent child pornography images, which they delete upon realizing the image's illicit nature. However, the memory cache or some other component of the electronic device might still retain thumbnail images, which persist even after primary images have been deleted.
In cases where the images weren't viewed intentionally or memory cache images or thumbnail images weren't knowingly possessed, Transitory Possession is a valid defense against this charge. 

Contact Criminal Defense Lawyer Larry Avallone

If you've been charged or arrested in the Daytona Beach area, contact Larry Avallone, who is an expert Criminal Defense Lawyer in Volusia County. My initial consultation is free. I am ready to provide legal advice regarding the next steps of your case.