Families of SOs Community Group
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Glad to see the author agrees with the Sentencing Commission and DOJ that the child porn sentencing guidelines need to be reformed. But this needs to be done far more quickly than waiting for a whole amendment cycle to pass:
It starts as this:
Making child pornography is abuse. What about possessing it? As a group, these offenders—the ones who look but don’t abuse children to create new images—are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years. Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
http://www.slate.com/articles/news_and_politics/crime/2013/04/child_pornography_viewers_how_dangerous_are_they.html
It starts as this:
Making child pornography is abuse. What about possessing it? As a group, these offenders—the ones who look but don’t abuse children to create new images—are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years. Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
http://www.slate.com/articles/news_and_politics/crime/2013/04/child_pornography_viewers_how_dangerous_are_they.html
But actually TwoForJoy - and I certainly am not a lawyer - but I believe that even people who plea (which is like a conviction) can go back to court if say something was found unconstitutional etc. or there is new evidence – and finding that sharing is not distribution is certainly new evidence in my eyes. Anyway, I believe that every little chip into these laws is a step in the right direction. Thanks goodness some judges are starting to get some sense!
And his "enhancement" was exactly what the above spoke about.
He was using a file sharing network, also ( damn..Limewire). Anyway, there was no evidence of any transmission--sending of files...oh...not until appearing before the judge for sentencing ( i'm sorry..earlier in his appearance before the judge for plea....no evidence was found of transmission)
Back to sentencing..a month and a half later.... prosecutors put yet ANOTHER FBI forensics "expert", and he stated to the court that , " well...maybe...there might have been...possibly one file..maybe..ect. Then went into a long and convoluted procedure as to how they thought maybe,possibly,might have..ect.
The judge, obviously impressed with this (insert sarcasm HERE)...and added 5 yrs to his sentence for a total of 180months (15 yrs.). Un-freeking beleivable!
However, perusing some GA SO laws, I believe recently there has been some movement..and aI think I read that SO's could petition after 10yrs for removal from registry.
Has anyone else saw this or is it just me wishful dreaming??
Also, does anyone know...after incarceration is over ( my son has 9 more yrs to go..), but..will he be parolled back to GA or what??
Thanks in advance...
Biller v State was an appeal so that means he preserved this issue for appeal at the trial level even though he accepted a plea
Adjudication withheld should keep your son off the registry once he successfully completes his probation.
He might be able to file a motion for post conviction relief claiming his plea was involuntary due to prosecutor coercion but that's definitely a subject to raise with an attorney.
I don't want you to feel like I'm prying into private business but I'm curious to know what agency arrested your son if you don't mind me asking.
aladdin4d – I really do not mind you asking but I have to tell you I have become so guarded about telling any information that could potentially upset the balance but I will tell you it was a Central Florida Sheriff’s Office. In fact, after I became more savvy about how these things work there were a lot of things that were a little strange about his arrest – number one as I mentioned before the information was old – but actually I misspoke before – the warrant was not months old the information was – they gathered the information from the peer to peer about 7 months before they got the warrant – my internet company gave them the information about the owner of the IP Address the next month (we saw the paperwork but were not advised by the stupid internet company at all) so about 6 months elapsed before they went to a judge. I was surprised that a judge even allowed that in a ‘cyber crime’ because the information was very stale. As it was, the computer that was investigated did not even exist anymore.
The other thing that has since struck me as odd was that there was no media reporting of my son’s arrest. Now, believe me I am grateful for that (very) but it now strikes me as a little odd. There was never any mention at all of the feds being involved or getting them involved. Hearing others experiences that now strikes me as odd. In fact, I have often wondered if (I really do not know how these things work) the sheriff office contacted the feds and the feds turned the case down (if so I wish I was privy to that information) – that would explain the gap of time from when the information was gathered and the time the warrant was issued.
Now about the adjudication withheld – this is what we have been told. He retains all of his civil rights (even carrying a weapon once he is off probation). But other than that he is treated like a felon and a sex offender for the rest of his life (at least in Florida). I actually know one man (known him since he was very young) that is slightly mentally handicapped and he was adjudication withheld in Florida and is on the registry for life. In fact, I believe he has now been on it 6 years or more. When other people find out about the adjudication withheld they think that is a really good thing but so far I do not see the benefit except for the civil rights (I know that is a biggie) but personally I would rather see him off the registry. Do think that perhaps it gives an opening to fight in the future but I do not know – we see it as not being convicted but the warpigs see it as convicted. Also from what I understand the adjudication withheld did not keep him out of prison solely on its own merit – the judge making him a youthful offender did that (I am also extremely grateful for that) – however, in this same county I have seen a 17 yr old that was a burglar, and contacted his ‘victim’ (a girlfriend) after his case and the judge said he gets off the registry when his probation is over. Not sure how the judge did that but she did.
I also understand that adjudication withheld is a slippery slope – if he ever gets in any trouble – a violation, any arrest at all it immediately turns to convicted. But I have also heard that adjudication withheld means he can possibly have his records expunged but it is in no way automatic.
I apologize for misspeaking earlier. I hate to say but it looks like you are right. Adjudication withheld doesn't do much for a sex offense in Florida. I thought it would and I spoke without researching that first.
Thank you for telling me it was a Central Florida Sheriff's Office, that tells me everything I wanted to know.
I know a little about the staleness doctrine but not enough to speak with any authority on it. I'm sure there were issues with your son's case just because of where it happened and it is possible they tried to refer it for federal prosecution and it was turned down. Finding out if that's what happened is possible but it'll probably take a Freedom of Information Act request to determine that.
@Advocate---hey... take this for what it is worth...and believe me, I don't know a whole lot, but I think I had read/heard that ANYONE with a sex conviction ( even being adjudication withheld)...that those type of charges can never be expunged or sealed. I hope I'm wrong, but I'm pretty sure that is the case.
Definitely research it PRIOR to paying for an attorney to attempt this for you.