2nd DCA: Penthouse magazine does not warrant violation of probation.

April 15, 2020, 12:56 pm

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

The post 2nd DCA: Penthouse magazine does not warrant violation of probation. appeared first on Florida Action Committee.

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