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25 Sep 2012

Computer Solicitation Charge Reduced To Attempted Felony Child Neglect Which Does Not Require Sex Offender Classification

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MLH was arrested on a warrant charging him with computer solicitation in violation of Section 847.0135(3), Florida Statutes (2005). The warrant set bond at $500,000.00, even though there was just a single count. MLH was arrested on the warrant where he was then residing in Albuquerque, New Mexico.

At this point, MLH’s family retained Jeffrey H. Garland to defend the matter. Garland contacted the warrants division of the St. Lucie County Sheriff’s Office (SLCSO) to assist in speeding up the process of extradition. MLH had already waived extradition, but actual transport was nowhere in sight. MLH could not file a motion to reduce his bond, until he was returned to St. Lucie County. He was ineligible for bond in New Mexico, because he was on an out-of-state warrant.

The SLCSO warrants division was very cooperative in arranging for a prompt transfer to Florida. In this regard, Garland arranged for a “private transfer” of MLH via a commercial airline. MLH tendered full payment of the fee requested by the SLCSO which would be sufficient to pay the cost of transportation for both MLH and a private transport officer, as well as the fees associated with the transport officer. This process allowed MLH to arrive at the St. Lucie County Jail on an expedited basis.

Upon his arrival at the St. Lucie County “Crossbar Hilton”, he was unable to make the $500,000.00 bond. How many people can? Garland immediately filed a motion for bond reduction, and set it for hearing. Garland pointed out that computer solicitation was, at that time, a third degree felony punishable by no more than five years in prison and a $5,000.00 fine. Garland attached a copy of the St. Lucie County bond schedule which was in regular use at that time. Under the terms of the bond schedule, the presumptive bond would have been no more than $20,000.00 for an out-of-state resident. Even though MLH was residing in New Mexico at the time the warrant was served, he had grown up in Florida and had significant and extensive family contacts in Florida.

The bond reduction motion also argued that the weight of evidence was not compelling. Garland had already secured a copy of the internet chat which SLCSO Detective Mark Colangelo said constituted the offense. The motion argued that the law enforcement investigation pointed to no facts that showed that MLH was actually planning to come to Florida for an inappropriate purpose. There were no exchanges of inappropriate images. The motion concluded that it was highly questionable whether the instant messaging constituted a crime under the computer solicitation statute.

In light of all of the circumstances, Circuit James McCann set bond in the amount of $100,000.00 on the condition that MLH reside at his brother’s house in Duval County, Florida. MLH agreed to the conditions and secured his release on the conditional corporate surety bond.

Thereafter, the case proceeded through the discovery process. The facts disclosed during discovery did not substantially change those facts which had been learned before and during the bond hearing. Importantly, the number of contacts between Det. Colangelo (who was posing as a minor) and MLH were relatively few. There was no exchange of inappropriate images. Such factual information as was actually exchanged was completely false. In short, the circumstances of the case seemed to establish a less severe potential, even if there were a statutory violation.

MLH, being fee on bond, was able to consult and counsel with a properly certified counselor. After an appropriate opportunity to meet with and evaluate MLH, the expert issued a psychosexual evaluation which concluded that the probability of reoffending was minimal.

In cases of this nature, it is uncommon for the subject to enter into a counseling program before sentencing. It is even rarer for a subject to participate earnestly in such a program in an honest attempt to address the relevant issues and to authorize his therapist to provide a written report made available for review by law enforcement as part of the plea negotiations in this case.

With these circumstances in mind, the prosecutor agreed to permit the defendant to plea to the charge of “attempted felony child neglect”. This charge was also a third degree felony punishable by up to five years in prison and a $5,000.00 fine. However, attempted felony child neglect did not require that MLH be designated as a sex offender with the attendant reporting requirements for the rest of his life. Adjudication of guilt was withheld at sentencing on November 9, 2005, and MLH was placed on two years of DOC probation.

After MLH was sentenced, he applied to transfer his probation to New Mexico under the Interstate Compact. See www.interstatecompact.org. On his arrival in New Mexico, MLH learned that a receiving state under the Interstate Compact has liberty to impose additional requirements. New Mexico required MLH to submit to its sex offender conditions of probation – even though sex offender probation had not been imposed at the time of sentencing.

MLH successfully completed his probationary terms and has resumed living his normal life.

State v. MLH, St. Lucie County Case No. 05-CF-904

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