2nd DCA: Penthouse magazine does not warrant violation of probation.
Florida’s 2nd District Court of Appeals reversed and remanded a the probation violation of a man who was caught with a Penthouse magazine.
George Bryan was charged with violating his probation and lying to his probation officer. He was on probation for the underlying offense of possession of child pornography. One of the conditions of his probation (and a special condition of MOST individuals who are on probation for a sexual offense was, “That he shall not view, access, own or possess any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the defendant’s deviant behavior pattern. [F.S. 948.30(1)(g)].”
After finding a Penthouse magazine (a legal magazine that you must be over 18 to purchase and that only depict images of people over 18) in the trunk of his car, his probation officer sought to violate his probation for lying to him by not disclosing this in his polygraph and for having the magazine. A trial court violated him and he appealed.
The appellate court reversed the violation (consistent with decisions from the 5th DCA) and remanded it back to the trial court. The court focused on the language, “that are relevant to the defendant’s deviant behavior pattern“. A legal adult magazine is not relevant to illegal CP.
The decision can be found here: https://www.2dca.org/content/download/633482/7197820/file/192331_DC13_04082020_085444_i.pdf
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The issue here is “…relevant to the defendant’s deviant behavior pattern…” was written into his restrictions. My question is, is it relevant even it isn’t in a person’s restrictions? I ask because I was charged and convicted with a violation of special conditions of having ADULT pictures on my computer when my crime was against a minor.
Not a lawyer… But,
Was the violation simply for having what was considered porn on your pc or was it because you had not yet attained permission from your treatment provider to view porn. It’s been awhile since I’ve read those conditions.
‘Lying to a Probation Office’….it is the Reverse…The Fcking PO, Lies, Lies, Lies…..Because, that is how they Justify their Mostly Overweight Existence, to receive their Bi-Weekly Check!..Remember, a State Employee is not responsible for creating Revenue, i.e. sales…they take Tax payers Monies away from the Populous!
I am grateful that the ‘One’ who Lied in Court and Illegally caused state incarceration on Me, is Now Dying a Slow Death…..Karma is a Bitch!
When I was incarcerated in CT in 2006-2008, Playboy/Penthouse was allowed to be purchased (subscriptions) by inmates. I think they started to change that rule around the time I got out.
This is of course due to sex offenders. But here’s something to consider (again); People have been locked up for sexual offenses for decades. What suddenly made the DOC decide to eliminate adult magazines from being allowed in their prisons? It truly makes no sense at all. More fear mongering.
I used to say in “therapy” group that I don’t need to look at naked photos of a female to get aroused, I have an imagination that works quite well. (Needless to say, they didn’t like that comment). Oh well!
Penthouse, Playboy and their ilk are publications protected by the First Amendment. The judge who imposed those restrictions should have considered this established point of law in the first place.
The judge did not bar Penthouse from publishing. Their 1Am rights seem intact to me.
Jacob, I was referring to the first amendment right of a person to possess Penthouse, Playboy, etc., not the right of the publishers to create and distribute their issues.
So it’s a question of whether someone under FL SO probation has a 1st Am right to possess Penthouse. If that’s the case, I’m surprised no one’s challenged FL’s SO probation law on that basis.
I hope this answers your question:
In Kasischke v. State, 991 So.2d 803, 815 (Fla.2008), the Florida Supreme Court examined the statute that prohibits sexual offenders on probation from possessing pornographic or obscene material and determined that “[a]n offender does not violate this condition unless the
obscene, pornographic, or sexually stimulating' material at issue is relevant to thedeviant behavior pattern.'”A few years ago, there was a bill to prevent someone on probation from possessing any pornography but that didn’t fly.
When I was still on paper , about 12 years ago, the FDLE came out with the strict zero tolerance policy, they were violating people, not just for nudie mags, but for having any R-rated move ( well any movie for that fact ) that had ANY nudity in it.
that was just before this lawsuit. I had to go through my movie collection and trash most of them out of fear.
My first PO told me he was going to revoke because I was watching something on Youtube when he stopped by, saying they considered it porn. I called his bluff – turned, put my hands behind my back, and said “Let’s go.” I was (and remain) more than willing to do a few weeks in jail to hear him explain (and the court to likely agree) that Youtube is pornographic. He backed off with a “next time…” warning and the matter never came up again.
Ditto my stupid “treatment” group. They wanted me to sign a pledge to not use the internet for any reason. I refused, saying modern life is impossible without it and it would apply to phones and ATM cards, depending on the extremes they want to take it. They threatened to kick me out and that I’d be revoked. Again, go ahead.
The next week, they modified the pledge to “unauthorized” purposes. I refused again, asking who determines what’s authorized and what isn’t, how do they let me know, and how (and how often) changes are made. No answers, just a claim that it’s only a formality and not that big a deal, just sign it. Again, I refused. Told them if it’s not big a deal to sign, then it’s not a big deal NOT to sign, either. 4 years later, it hasn’t come up again.
I filed grievances against that firm with every mental health organization they belong to for violations of their various codes of ethics and standards of practice last October (held off on complaining to the state licensing board, pending the results). They’ve been fast-tracking me through their stupid program ever since.
Just a guess here…
ITM Group?
Must be the ITM Group. Thats how they play. Kicked me out for “not participating ” bc of my insistence that a detective committed perjury against me at trial. So, I got violated by probation. Now there is a review into that cop’s false testimony. So, we’ll see.