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Child Pornography Conviction Affirmed over “Double Counting” Objection.

Sentencing guidelines are used in the state of Florida to advise judges as to appropriate sentences for each crime. The sentencing guidelines often incorporate both aggravating and mitigating circumstances to increase or decrease the level of offense and suggested sentence. The sentencing guidelines for sexual offenses allow for a broad range of sentences for similar crimes. Repeat offenders and defendants convicted of sex crimes involving multiple victims are often subject to substantially increased sentences compared to first-time offenders. Certain aggravating factors that apply to Florida sex crimes sometimes overlap with each other and could result in a sentence being increased multiple times based on the same conduct. A man convicted of several child pornography-related offenses recently appealed his sentence to the Eleventh Circuit Court of Appeals, alleging that his sentence had been unjustly increased.

The defendant from the recently decided appeal was arrested and charged with several sex crimes related to the production, possession, and distribution of child pornography. After he was convicted of the charges, the man was sentenced to 300 months in federal prison for his crimes. The guidelines used to determine his sentence included two enhancements permitted under federal law. First, the sentence was increased because the charges demonstrated that the defendant had engaged in a “pattern of activity involving the sexual abuse of a minor.” The defendant’s sentence was separately enhanced because he engaged in “a pattern of activity involving prohibited sexual conduct.” Based on the similar language of these enhancements, the defendant appealed his sentence, arguing that the two enhancements should not be applied to the same charges, as they are substantially similar to one another and their concurrent application would be impermissible “double counting.”

The Appellate court heard the defendant’s appeal; however, the court was bound by the discretion of the trial court because the defendant did not object to the alleged “double counting” at trial. Based on their required standard of review, the appellate court found no error in the sentencing judge’s application of the two enhancements. Specifically, the court found that the enhancements, while containing similar language, were directed at two very different public and judicial interests. The court found that the first enhancement was designed to punish particularly egregious conduct, while the second enhancement was designed to increase the punishment of habitual offenders who demonstrate a high risk of recidivism. Based on the recent ruling, it appears the defendant will be required to serve his sentence in full.

Have You Been Charged with a Florida Sex Crime?

Sentencing for sex crimes in Florida varies greatly depending on a variety of factors and enhancements that may be applied to a crime. It is essential for a criminal trial attorney to understand the application of enhancements from an early stage and object where appropriate. Even when an objection is overruled, the issue can be preserved for favorable treatment on appeal. If you are facing sex crime allegations in Florida, the experienced Florida sex crime defense attorneys with the Mayberry Law firm can help you fight the charges against you, and if you are convicted, we know how to ensure that inappropriate enhancements aren’t applied at sentencing. Our dedicated criminal lawyers have successfully defended clients against sex crime charges before, obtaining dismissals and not-guilty verdicts at trial. Contact our office at 813-444-7435 or email me directly at to talk about your case.

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