Sentencing Guidelines for Pornography-Related CrimesThe penalties available in pornography-related prosecutions depends in large part on the defendant’s present charges, the number of charges, his or her prior criminal history, and whether the victim sustained an injury. This information goes into a formula, which then results in a total score that is intended to help provide the judge with a minimum advisory sentence.
Under the current points system, felonies are categorized into ten levels, each of which determines the number of points a charge will be assigned. These levels are divided by the severity of the crime, with Level Ten representing the most serious offenses. For instance, possession of child pornography is considered a Level Five Offense. Level One offenses generally result in four points, while Level Ten offenses result in 116 points. More points are added if a defendant is accused of committing more than one crime, or if he or she has prior criminal convictions. Generally, the more extensive a defendant’s criminal record is, the more points will be added to his or her total, and the higher the minimum sentence will be. If a victim suffered a severe injury as a result of the offense, 40 points will be added to the score, while a moderate injury adds 18 points. Points are also added for sexual penetration (80 points) and sexual contact (40 points).
According to the Criminal Punishment Code, when a defendant’s total points are equal to or less than 44, the lowest possible sentence is a non-state prison sanction. When the total points exceed 44, however, the minimum sentence is reached by taking the total point value, subtracting 28, and reducing the remaining value by 25 percent. The result provides the court with the lowest permissible prison sentence in months.
This means that only offenders who score 44 or fewer points can receive a non-state prison sentence. These sentences are referred to as discretionary because it is left up to individual judges to decide whether a defendant gets probation, jail time, a prison sentence, or a combined sentence. All other defendants, who score 45 or higher, must receive a state prison sentence, except in cases where a judge chooses to depart from the structure and reduce the sentence further. Mandatory prison incarceration is required when a total reaches 52 points.
However, because the minimum recommended sentence is only advisory, judges are not required to accept it but can reject it in favor of a harsher sentence, up to the statutory maximum. Although less common, there are certain situations when a judge can deviate from the guidelines and sentence a defendant below the minimum on the scoresheet. This occurs most often when an offender is under the age of 21 years old and does not have a prior criminal record.
Reclassifying OffensesAlthough pornography-related offenses come with a maximum prison sentence, some crimes can be reclassified and so further increase possible penalties. For example, transmitting child pornography to another person via an electronic device is a third-degree felony, which means that a judge could sentence a defendant to a maximum of five years for each count. This sentence also applies when a person is charged with sending harmful images to a minor or of using a computer to solicit a minor to engage in sexual conduct. However, under Fla. Stat. 775.0847 these offenses can be reclassified as second-degree felonies, and so be punishable by up to 15 years in prison if the offender possessed ten or more images of child pornography, and the content of at least one image contained:
- A child under the age of five years old
- Sadomasochistic abuse involving a child
- Sexual battery of a child
- Bestiality involving a child
- Any movie involving a child