Sexting and the law
According to a recent article in the New York Times, former Democratic Congressman and New York City mayoral candidate, Anthony Weiner has entered a guilty plea to a federal charge of obscenity. Weiner entered his plea in federal court, pleading to a charge of “transferring obscene material to a minor.” The victim in the case was a 15 yr. old girl in North Carolina. The charge Weiner admitted guilt on carries a 10 year maximum prison sentence although the prosecutor stated a sentence of 21 to 27 months would suffice. Weiner is not slated for sentencing until September. If he is to receive a prison sentence the Judge may remand him into custody at that time or let him remain free to get his affairs in order. In most of the Circuit Courts of Florida, if the defendant pleads guilty or no contest, with no agreed to sentence or conditions, this is called a “straight up plea.” The Court may sentence the defendant to the maximum sentence allowed by law and the defendant cannot simply withdraw his or her plea because of a sudden case of buyer’s remorse. Also in Florida, if the defendant has no prior felony convictions, the Court will order a Pre-Sentence Investigation, or “PSI’ which is compiled by the Florida Department of Corrections. In Juvenile Court, the same type of document is provided to the Court, however, it is called a Pre-Disposition Report, or “PDR” which is prepared by the Florida Department of Juvenile Justice. In a violation of probation case, the probation officer compiles a similar report. The reports focus on the defendant’s upbringing, family situation, drug and alcohol abuse history, education, criminal history, the facts involved in the case at hand(which is usually just a reiteration of the police report), any military service and employment history. These types of reports are prepared to give the courts a background on the defendant and they usually contain a recommendation in the last paragraph as to what the preparer thinks is an appropriate sentence. The Judge is not bound by these reports or recommendations.
FORFEITED PROPERTY AND FACES LARGE FINE
The terms of the plea agreement show Weiner agreeing to forfeit his I-Phone and being exposed to a monetary fine ranging from $35,000 to $350,000. The I-Phone is listed by the serial number and is being seized as it was apparently the communications device Weiner used to commit the crime. Seizure and forfeiture of property is very common in Florida criminal cases. Many times, at the scene of a crime, law enforcement will take a suspect’s phone into evidence. The officer will ask for consent to look into the phone. If the suspect withholds consent to search, the officer still takes the phone, puts it into evidence and seeks a warrant allowing the contents of the phone to be examined. It is this writer’s experience, large amounts of cash and nice vehicles are also commonly seized and subject to a civil forfeiture if they can any way be linked to the commission of a felony. Many firearm or gun crimes cases, for example, are reduced by the filing state attorney to lesser charges; however, any firearm involved in the crime and maybe any other firearms owned by the defendant are typically forfeited as part of the negotiations. In some of the larger employee theft or embezzlement cases, whatever the defendant has in a 401k retirement account is commonly used in negotiations in a effort to make an up front pay down on the restitution owed.
LIFETIME REGISTRATION AS A SEX OFFENDER
Former Congressman Weiner will be a sex offender because of this conviction. Although this is a federal conviction, he will have registration requirements designated by whatever state in which he resides or even travels into. His registration will be similar to that of a military sex offender who is no longer in the military. There will always be state requirements. Under Florida Law, a failure to comply with sex offender requirements usually results in a quick arrest, a high dollar amount on the bond, then a case with few defenses and a return trip to prison. Those on sex offender probation have upwards of twenty requirements and prohibitions. Sex offender probation is extremely restrictive with living restrictions, sexual counseling and polygraph examinations, no internet use allowed, a curfew and a driving log as just some of the examples. In Florida, if one is on sex offender probation, there has almost always been a decent amount of incarceration served before the probationary period starts. Once off probation, the sex offender still has to take at least two trips a year to the local police station and disclose any Internet accounts and his or her living arrangements. In Florida, the offender has 48 hours to update his information that he or any of his roommates has a new vehicle, failure to do so is a 3rd degree felony. This writer is aware, as is law enforcement, that many sex offenders are forced financially or by the local geographic restrictions on where they are allowed to live, and live in “group homes.” Offenders, some with vehicles and some without, come and go at these houses. Many offenders work, eight to ten hours daily, but must keep up with any new roommates(must report) and any changes in vehicles with the existing roommates. This is Florida Statute 943.0435(2)(B)3.
“SEXTING” IS PROSECUTED
The sending of sexual materials back and forth using one’s smart phone, laptop, tablet or PC only takes a few seconds. It can and does result in prison, followed by sex offender probation followed even further by the lifetime sex offender registration requirements and restrictions. Unsuspecting juveniles are frequently arrested in these types of sex cases also. If you, a family member or a friend thinks there may be a pending problem due to “sexting” or any other type of sexual offense, get in to see an experienced sex crimes attorney. Most criminal defense attorneys in South Florida provide in-depth free consultations and/or jail visits. Call Fort Lauderdale Criminal Defense Attorney Richard F. Della Fera, 954.514.9955