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Madame Bovary Not Relevant to Defendant’s Deviant Behavior Pattern
September 14, 2009
Topic: Criminal
The defendant in Sellers v. State, 34 Fla. L. Weekly D1657a, was sentenced to three years in prison and then placed on ten years’ sex offender probation after pleading guilty to numerous counts of possession of child pornography. Shortly after being released from prison, probation officers searched his residence and found hundreds of videotapes. From the selection, probation officers randomly selected five videos and two books. Based on the content of these materials, an affidavit of violation of probation was filed for possession of pornographic, or sexually stimulating visual or auditory material that was relevant to the defendant’s deviant behavior pattern. None of the materials involved children, and the court likened the books to Madame Bovary; however, several of the materials involved “hardcore” images of a sexually explicit nature.
The defendant alleged that these materials could not form the basis for revocation of his probation because they were not “relevant to his deviant behavior pattern,” as they all involved adults. The trial court disagreed, revoked the defendant’s probation, and sentenced him to fifteen years in prison followed by fifteen years’ probation.
On appeal, the Fifth District Court held that these materials were not relevant to the defendant’s deviant behavior pattern. There was no evidence from which an association could be made between the underlying offenses of possession of child pornography and the sexually explicit materials in question. The statute regulating this determination is Fla. Stat. § 948.03(5)(a)(7), which specifically states that the material must be relevant to the deviant behavior pattern. This section does not prohibit a probationer from possessing any and all obscene, pornographic, or sexually stimulating materials, only those relating to the charges for which he was placed on probation. Hence, there must be evidence sufficiently linking the material to the underlying offense to create a rational relationship. The court was unable to determine that the trial court’s finding was supported by sufficient evidence and remanded to allow the trial court the opportunity to identify the basis for its conclusion.
