Florida/Georgia Personal Injury & Workers Compensation

...was unsure but only thought the camera was in Sarras's house. Nonetheless, the affidavit accurately represented E.M.'s statement that Sarras took the pornographic pictures while in his house. It is Sarras's possession of the photos, not the camera, that constitutes a crime under Florida statute § 827.071(5) (making it a felony to unlawfully possess material known to include sexual conduct by a child)....

...and her mother previously had used the camera to take pictures at Sea World or the Kennedy Space Center. [2] The LimeWire program is a peer-to-peer file sharing program which allows outsiders to access files on any computer also programmed with LimeWire. [3] Ortiz's affidavit referenced Fla. Stat. § 827.071(5), making it a crime for "any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which ......

...Butterworth, Atty. Gen., Joan Fowler, Senior Asst. Atty. Gen. and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for respondent. *408 PER CURIAM. We have for review Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990), which expressly declared valid subsections 827.071(1)(g) and 827.071(5), Florida Statutes (1987)....

...The above offenses did occur within the county of Martin, Martin County, Florida [sic]. The affidavit then alleged that these facts established probable cause for violations of four statutes. Two of those alleged violations are relevant to this opinion. First, the affidavit alleged violation of section 827.071, prohibiting sexual performance by a child. In pertinent part, this statute prohibits the knowing possession of any depiction known to include "sexual conduct" by a child. [1] § 827.071(5), Fla....

...tual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. § 827.071(1)(g), Fla....

...During the search, deputies discovered videotapes and related material that later formed the basis of the state's case against Schmitt. Reserving the right to appeal, *409 Schmitt pled no contest to several of the charges, including violation of subsection 827.071(5). [2] On appeal, the Fourth District rejected Schmitt's argument that officers lacked probable cause to obtain the warrant. Although the Fourth District determined that subsection 827.071(1)(g) was overbroad on its face, the court adopted a narrowing construction by reading a lewdness element into the applicable portions of the statute....

...[3] On this basis, the court below upheld the constitutionality of the statute. Schmitt, 563 So.2d at 1098-1100. In this review, Schmitt argues first that the affidavit quoted above was facially insufficient to support a finding of probable cause. Second, he argues that his conviction under subsection 827.071(5), Florida Statutes (1987), is unlawful because that statute is unconstitutional....

...lly shields the home. The state unquestionably has a very compelling interest in preventing such conduct. The two pertinent statutes recited in the probable cause affidavit clearly are aimed at rooting out the sexual exploitation of children. First, section 827.071 (prohibiting sexual performances by a child) requires not merely nudity but depictions or representations of actual sexual intercourse, deviate sexual acts, bestiality, masturbation, sadomasochism, "lewd" exhibition of the genitals, the touching of a person's clothed or unclothed privates or buttocks, [7] or actual or simulated sexual battery. § 827.071(1)(g), Fla....

...y the statute. While nudity alone would not have sufficed, this overall focus of Schmitt's conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of section 827.071....

...For the above reasons, the decision of the magistrate to issue a warrant may not be disturbed on appeal. The warrant and all that flowed from it was lawful, because the magistrate had a substantial basis for believing that a search of Schmitt's home would disclose evidence of a violation of sections 827.071 and 800.04. Gates. IV. Constitutionality of Section 827.071 We next turn to the question of whether section 827.071 is constitutional....

...nce its obvious purpose is to prohibit certain forms of child exploitation. Thus, it is intended to regulate types of conduct and depictions of such conduct that, within the context of this case, also may have some incidental expressive content. See § 827.071, Fla....

...In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast... ." Tirohn, 556 So.2d at 449 (quoting § 827.071(1)(g), Fla....

...Schmitt notes generally that virtually any photograph of close physical contact with a minor violates the statute. On the face of the statute, this unquestionably is true. Although these examples are hypothetical, the overbreadth doctrine requires us to consider the potential chilling effect of section 827.071 in all of these various contexts....

...The latter statute clearly is intended to deal with child abuse that does not necessarily rise to the level of being a crime but which nevertheless is harmful to minors. Yet, the civil child-abuse statute contains a far narrower standard than does its criminal-law counterpart contained in subsection 827.071(1)(g)....

...it may reasonably be construed to be a normal caretaker responsibility, an interaction with, or affection for a child; or ... [a]ny act intended for a valid medical purpose. § 415.503(17)(d), Fla. Stat. (1987). The perplexing result is that, under section 827.071(1)(g), conduct is declared to be a felony that could not possibly be considered evidence of child abuse under chapter 415. On the face of the former statute, anyone who owns a photograph of a parent changing a baby's diaper technically has committed the crime of unlawfully possessing a depiction of "sexual conduct by a child," at least as that term is defined in subsection 827.071(1)(g)....

...Yet the actual act of changing the diaper is expressly declared not to be a form of child abuse under chapter 415 and thus would not even prompt a state investigation of the matter. This serious inconsistency in itself reveals how substantially overbroad subsection 827.071(1)(g) is....

...eate or possess photographs or films of entirely innocent and innocuous activities involving families and children, which clearly are protected by the guarantee of free expression. Art. I, § 4, Fla. Const. B. Due Process Schmitt also argues that subsection 827.071(1)(g) violates Florida's guarantee of due process....

...The statute certainly is not vague, since even its overbroad portion is sufficiently definite in language to tell persons of reasonable intelligence the kind of conduct that is proscribed. See State v. Ferrari, 398 So.2d 804 (Fla. 1981). D. Alleged Deficiencies in Subsection 827.071(5) In his brief, Schmitt alleges that subsection 827.071(5), under which he was convicted, is void because it lacks a sufficient *414 scienter element and is overbroad. We disagree that subsection 827.071(5) lacks a sufficient scienter element....

...Indeed, it contains two separate intent requirements: It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child. § 827.071(5), Fla....

...There thus is no question that the misbehavior reached by the statute is the intentional exploitation of children. This is legitimately related to the legislative goal of eliminating the market for the fruits of such exploitation. However, for the reasons expressed above, we agree that subsection 827.071(5) is overbroad to the extent that it incorporates by reference the definitional element of subsection 827.071(1)(g) that was stricken by the Tirohn court. E. Severability The question remaining is whether the constitutional defects noted above require us to strike all of section 827.071 or whether we may adopt a limiting construction....

...We thus must determine whether Florida law permits our own courts to take a similar action. Tempting as the Fourth District's analysis below may seem, we are deeply troubled by its suggestion that a court may read a lewdness element into a statute that plainly lacks one, in its pertinent parts. See § 827.071, Fla....

...deference to the legislative prerogative to enact laws. Art. II, § 3, Fla. Const. Accordingly, we agree that the Tirohn court's method of analysis is the appropriate one to apply here. On this question, we first find that the illegal language of subsection 827.071(1)(g) clearly can be separated from the remaining valid language without rendering the enactment nonsensical or otherwise changing its essential meaning beyond what is necessary to cure the constitutional defect. Second, the legislative purpose clearly is served by severing the illegal portion. Section 827.071 expresses an undeniable legislative intent to root out child exploitation, and we believe this Court would do a grave disservice to the state by striking the remainder of the statute simply because a single clause is unconstitutional....

...Waldrup, 562 So.2d at 693 (quoting Cramp, 137 So.2d at 830). The remainder of the statute directly outlaws sexual abuse and sexual exploitation of children in a way that harmonizes with Florida's civil child-abuse laws. To this extent, it is entirely permissible. For the foregoing reasons, we hold subsection 827.071(1)(g) void solely to the extent that it defines "sexual conduct" to include "actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast;... ." We find that, in light of the foregoing holding, subsections 827.071(1)(g) and 827.071(5) are otherwise constitutional and valid. The other conduct proscribed by the relevant portions of the statute consists of several kinds of actual or simulated sexual acts, bestiality, masturbation, sadomasochism, lewd exhibition of the genitals, or actual or simulated sexual battery. § 827.071(1)(g), Fla. Stat. (1987). Each of these elements is precisely defined either in the statute itself or by reference to terms such as "lewd" that have a sufficiently narrow meaning under Florida's common law, as noted above. § 827.071(1), Fla. Stat. (1987). More to the point, the nature of these other acts is qualitatively different from those described in the unconstitutional portion of subsection 827.071(1)(g)....

...This is in sharp contrast to the language *416 excised by the Tirohn court and by our opinion today, which unquestionably included countless kinds of completely innocent, innocuous conduct. V. Failure to Use the Legal Definition of "Obscenity" In a separate argument, Schmitt challenges section 827.071 on grounds that it fails to define child exploitation offenses in the same terms the Constitution mandates for "obscenity." We do not believe this to be error in this instance....

...Indeed, the exploitation of children for sexual purposes involves a level of heinousness of the highest magnitude. Even if obscenity analysis is applicable in this context, we thus believe that a conviction for possessing depictions rendered unlawful under section 827.071 as construed in this opinion always would meet the test for "obscenity" developed in Miller v....

...patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. (citations omitted). The conduct described in section 827.071, as construed above, inherently involves conduct that appeals to prurient interest, and inherently depicts patently offensive sexual conduct as that term is specifically defined in Florida law....

...Our opinion today eliminates the possibility that depictions of innocent conduct might be encompassed within this definition. Moreover, we can conceive of no serious literary, artistic, political, or scientific interests that would ever justify the sexual or sadomasochistic exploitation of children. By convicting under section 827.071 as construed here, a fact finder logically and necessarily concludes that all the elements of the Miller test have been satisfied....

...Accordingly, Schmitt's argument on this question must fail. VI. Conclusions For the foregoing reasons, the opinion below is approved in part and quashed in part. We agree that a substantial basis existed for a magistrate to issue a warrant for the search of Schmitt's home. We agree that subsections 827.071(1)(g) and 827.071(5) are constitutional, since we find that these provisions are constitutional as we have construed them above....

...KOGAN, J., concurs in part and dissents in part with an opinion. McDONALD, Justice, concurring in result, dissenting in part. I would approve the decision under review. We accepted jurisdiction primarily to *417 rule upon the constitutionality of subsection 827.071(5), Florida Statutes (1987)....

...Schmitt's daughter, within the letter of the law. II. Despite the objections noted above, I fully concur in parts IV and V of the majority. However, I would address one further issue raised by the parties. Here, Schmitt also argues that subsections 827.071(1)(g) and 827.071(5) violate Florida's constitutional right to be let alone....

...a minor" is "compelling." Ferber, 458 U.S. at 756-57, 102 S.Ct. at 3354 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). I believe it equally clear that one of the primary purposes of subsection 827.071(5) is to eliminate the exploitation of children for pornographic purposes by eliminating the market for child pornography....

...failed to choose the least intrusive means. An overbroad statute by definition intrudes where the state has no right to be. Thus, for the same reasons expressed in the majority's discussion of free expression interests, I also must conclude that subsection 827.071(1)(g) has failed to use the least intrusive means....

...f October 1, 1991. See Ch. 91-33, § 1, Laws of Fla. (1991). NOTES [1] There thus is a double scienter requirement. [2] The information, however, did not charge any offense under Florida's obscenity statute, chapter 847, Florida Statutes (1987). [3] Section 827.071, Florida Statutes (1987), prohibits several discrete kinds of conduct. On the face of the statute, only one kind requires a "lewdness" element — "lewd exhibition of the genitals." § 827.071(1)(g), Fla....

..."Sexual activity" means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. "Union" means contact. § 827.071(d) and § 847.001(13), Fla....

..."Sadomasochistic abuse" means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. § 827.071(f) and § 847.001(15), Fla....

...to proceed anonymously, we believe the district court was mistaken in considering Plaintiffs J and S’s allegations by assuming that because this sort of activity was 14 not “sexual conduct” under Florida Statutes § 827.071, it was not a disclosure of “utmost intimacy.” [R....

...Spencer, Defamatory E-Mail and Employer Liability: Why Razing Zeran v. America Online is a Good Thing, 6 Rich. J.L. & Tech. 25, 9 (2000) (footnotes omitted) (criticizing as erroneous Zeran 's interpretation of the CDA as eliminating ISP distributor liability). [16] See § 827.071(4), Fla....

...ally, we considered a statute prohibiting the possession of a depiction involving “actual physical contact with a [minor] person’s clothed or unclothed genitals, pubic area, buttocks, or if such person is a female, breast.” Id. at 408 (quoting § 827.071(1)(g), Fla....

...Thus, I would quash the opinion below. I must emphasize, however, that I would leave intact the state's ability to reach and prohibit the harmful activities of child pornographers, a subject confronted by an entirely separate statute not before us today. See § 827.071, Fla....

...e child's physical or emotional health to be significantly impaired or is in danger of being significantly impaired shall be guilty of a misdemeanor of the second degree, punishable as provided in chapter 775. Chapter 83-75, Laws of Florida, created section 827.071, defining offenses involving "sexual performances" by a child....

...Day, of Berry, Day & McFee, Naples, for Appellant. DAVIS, Judge. The State challenges the circuit court's order dismissing the information against Paul Pasko. The information charged Pasko with seventy-seven counts of possession of child pornography, in violation of section 827.071(5), Florida Statutes (1999)....

...We recognize that nudity alone does not constitute sexual conduct. See Schmitt v. State, 590 So.2d 404, 409 (Fla. 1991). However, our review here reveals that the instant photographs and the inferences drawn therefrom do provide the minimum proof necessary to establish a prima facie case of a violation of section 827.071(1)(g)....

...These images can be retrieved during forensic analysis even after an attempt has been made to erase the images. Consequently, I believe there are images related to children involved in sexual performances and/or child pornography as defined in F.S.S. 827.071 still contained on the computer located at the place to be searched....

...In contrast, in Schmitt v. State, 590 So.2d 404, 411 (Fla.1991), in which the supreme court sustained the probable cause determination in a warrant issued to search the defendant's home for evidence of the defendant's knowing possession of child pornography, § 827.071(5), Fla....

...s expert is sufficient evidence to sustain a conviction for possession of child pornography. Affirmed in part, reversed in part, and remanded for resentencing. ALTENBERND, C.J., and WHATLEY, J., Concur. NOTES [1] § 800.04(6), Fla. Stat. (1999). [2] § 827.071(5), Fla....

...the juvenile described it, stripping down to their panties... . During the same time frame ... the father utilized the same VHS camera to record the juvenile victim swimming in the nude. Based upon this activity, the affidavit alleged violations of section 827.071, Florida Statutes (1987), sexual performance of a child; section 800.04, lewd or lascivious acts or indecent assault or act upon or in the presence of a child; section 827.04, child abuse; and chapter 847, obscene literature or profanity....

...2d DCA 1985), review denied, 476 So.2d 673 (Fla. 1985). Based upon the totality of the circumstances presented by the facts of this case, we affirm point I on appeal. Appellant's second point on appeal raises several issues. First, he challenges the constitutionality of section 827.071(5), Florida Statutes (1987). We disagree and uphold the constitutionality of the statute upon the authority of State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989). Appellant's second issue under this point warrants discussion. Schmitt claims that section 827.071(1)(g), Florida Statute (1987), is void for vagueness and suffers from overbreadth. Section 827.071(1)(g) provides: (g) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact...

...t can include a parent patting a baby's diapered behind or a high school yearbook with prom photos showing couples draped around each other in a slow dance. In State v. Tirohn, 556 So.2d 447 (Fla. 5th DCA 1990), appellee claimed that the language of section 827.071(1)(g) would prohibit possession of a picture of a father bathing his son, two clothed children hugging each other in such a way that their clothed genitals made actual physical contact, or a photograph of a junior high school coach gi...

...As to appellant's third point raised on appeal, we find that the trial court erred in adjudicating appellant guilty in counts IV, VI, VII and IX of the indictment. The trial judge declined to dismiss certain counts of the information charging appellant with promoting a sexual performance by a child in violation of section 827.071(2), Florida Statutes (1987), because topless dancing by a well-developed female child wearing only bikini panties does not constitute "sexual conduct" by a child as that phrase is defined in section 827.071(1)(g) and (h)....

...This court addressed a similar argument addressed in Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1990). In Firkey, appellant videotaped an alleged sexual battery. He asserted that his conviction for having a child engage in a sexual performance, pursuant to section 827.071, Florida Statutes (1987), could not stand since the videotape had never been exhibited to an audience. Section 827.071(1)(b), Florida Statutes (1987), reads: (b) Performance means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience....

...yet, had time to exhibit his vile handiwork." Id. at 584. Accordingly, we affirm point IV on appeal. Finally, we find that the trial court erred in adjudging appellant guilty of seven counts of possession of photographs of a child's sexual conduct. Section 827.071(5), Florida Statutes (1987), reads in pertinent part: (5) It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which in whole or in part, he knows to include any sexual conduct by a child....

...Accordingly, we quash the Third District's decision and remand with instructions that the district court affirm the trial court's ruling granting summary judgment in favor of petitioner. It is so ordered. HARDING, C.J., and OVERTON, KOGAN and PARIENTE, JJ., concur. SHAW and ANSTEAD, JJ., concur in result only. NOTES [1] See § 827.071, Fla....

...of her image is because of the Florida legislatures' repeated indications that sexually exploiting minors is contrary to the public policy of this state. See Doc. No. 61. With regards to this argument, there is one Florida statute exactly on point. Section 827.071 of the Florida statutes punishes individuals who induce or employ children less than 18 years of age to engage in a "sexual performance." A "sexual performance" means "any performance or part thereof which includes sexual conduct by a...

...s statute. See State v. Pasko, 815 So.2d 680 (Fla. 2nd DCA 2002) ("nudity alone does not constitute sexual conduct"). Accordingly, the publication of Lane's image and likeness in Girls Gone Wild falls outside of the protections afforded to minors in § 827.071....

..., for appellant. Richard D. Kibbey of Kibbey & Barlow, Stuart, for appellee. PARIENTE, Judge. The issue in this case is one of first impression in Florida—whether possession of a pornographic computer image of an actual child is punishable under subsection 827.071(5), Florida Statutes (1995). We reverse the trial court's order of dismissal and hold that a pornographic computer image of an actual child constitutes a photograph, representation or other presentation, the possession of which is punishable as a third-degree felony under subsection 827.071(5)....

...Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and based on grounds of statutory construction, the trial court dismissed thirty-two counts of the information. The dismissed counts charged defendant with felony possession of child pornography in violation of subsection 827.071(5)....

...fact." State v. Hart, 677 So.2d 385, 386 (Fla. 4th DCA 1996) (citation omitted). For purposes of this appeal, defendant does not contest that his computer contained image files of child pornography. His argument is that the statutory language of subsection 827.071(5) does not prohibit possession of pornographic images on a computer hard drive because a computer image is not possessed unless and until several steps are taken to view the image....

...See State v. Hagan, 387 So.2d 943, 945 (Fla.1980); Plante v. Department of Bus. & Prof'l Regulation, 685 So.2d 886, 887 (Fla. 4th DCA 1996); Newberger v. State, 641 So.2d 419, 420 (Fla. 2d DCA 1994). Neither "presentation" nor "representation" are defined in section 827.071....

...A computer image would thus be encompassed by the plain and ordinary meaning of the phrase "representation, or other presentation," as defined in the dictionary and as commonly understood. [4] *438 Alternatively, the pornographic images in this case may qualify under subsection 827.071(5) as copies of photographs....

...A photograph is defined as "a picture or likeness obtained by photography." Webster's New Collegiate Dictionary at 875. The state contends that it will be able to establish that at least some of the computer images were scanned into the computer from magazine photographs. [5] We find no ambiguity in the language of subsection 827.071(5)....

...State, 677 So.2d 270, 271 (Fla.1996); Overstreet v. State, 629 So.2d 125, 126 (Fla.1993); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). Nevertheless, the maxim of statutory construction known as ejusdem generis further supports our conclusion that defendant's conduct was prohibited by subsection 827.071(5)....

...es of a magazine, or that the images are stored on a hard drive rather than in a shoebox, does not change the fact that a defendant possesses pornographic representations of actual children. In deciding that computer images are not encompassed by subsection 827.071(5), the trial court found that "the legislature intended to treat as felonies categories of obscene materials that were in permanent form and suitable for immediate distribution." However, legislative intent is determined primarily from the language of a statute....

...This principle is "not a rule of grammar; it reflects the constitutional obligation of the judiciary to respect the separate powers of the legislature." State v. Brigham, 694 So.2d 793, 797 (Fla.2d DCA 1997). Nowhere within the statutory language of section 827.071 do the terms "permanent form" or "suitable for immediate distribution" appear, nor does any indication of such an intent appear in the statute's legislative history. [6] To read these qualifying terms into *439 the statute, as the trial court did, would be to rewrite the statute and to limit its terms in a manner contrary to its plain language. Assuming arguendo a legislative intent to limit the scope of section 827.071(5) to forms "suitable for immediate distribution," a computer image stored on a hard drive would certainly qualify as a form suitable for immediate distribution....

...The fact that a computer must be turned on to display the photographic image does not affect the suitability of the computer image for immediate distribution. Defendant analogizes the raw, unconfigured computer data in this case to videotape, which he also contends would be excluded from the prohibition of subsection 827.071(5) because it requires the use of a videotape player to view the image. Defendant contrasts videotape with motion picture film, which is expressly included within the statute, and can be viewed without a projector. [8] However, there is no indication that subsection 827.071(5) excludes videotapes because a videotape player must be utilized to view the images. Indeed, in State v. Beckman, 547 So.2d 210 (Fla. 5th DCA 1989), the defendant was charged, under subsection 827.071(5), with knowing possession of a videotape depicting sexual conduct. The fifth district upheld the constitutionality of subsection 827.071(5) against the argument that mere private possession of obscene material should not be criminalized. It was neither argued nor implied in Beckman that possession of a videotape might be excluded from the prohibitions of subsection 827.071(5)....

...(1995) ("when the language [of a statute] is susceptible of differing constructions, it shall be construed most favorably to the accused"). Here, because defendant does not raise a due process challenge and because we do not find the language of subsection 827.071(5) susceptible of different constructions, there is no occasion to invoke this principle. The language of the statute simply is not susceptible to the construction advanced by defendant. Further, the restrictions on the scope of the statute urged by defendant, which appear nowhere within the language of section 827.071, would be inconsistent with the intent of statutes dealing with child pornography, and at odds with judicial explanations for upholding the constitutionality of statutes criminalizing simple possession of child pornography....

...State, 590 So.2d 404 (Fla.1991); see also Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). Our supreme court has declared that the "sexual exploitation of children is a particularly pernicious evil." Schmitt, 590 So.2d at 404. The "obvious purpose" of section 827.071 "is to prohibit certain forms of child exploitation.......

...the clarity of images, the speed of transmission, and the ability to upload or download the images with ease. Finally, we address the trial court's reasoning that because computer pornography is encompassed by section 847.0135, [12] subsection *441 827.071(5) does not apply to possession of computer images. In its order, the trial court found that if possession of computer images of child pornography could be punished under subsection 827.071(5), "it would in essence repeal the misdemeanor statute [section 847.0135]." [13] The principle of in pari materia requires that a law be construed together with any other law relating to the same purpose such that they are in harmony....

..."This test inquires whether each offense contains an element not contained in the other; if not, they are the same offense and double jeopardy bars subsequent punishment or prosecution." Id. A review of the two statutes at issue here indicates that each statute contains an element not contained in the other. Subsection 827.071(5) requires proof of possession while section 847.0135 concerns the dissemination of information where that information is for the purpose of facilitating sexual conduct, or the visual depiction of such sexual conduct, with a minor....

...es, but also an attempt to upload pornographic images of children to an on-line bulletin board. A review of the staff analysis of the bill creating section 847.0135 supports the view that the enactment of that statute was not intended to supplant subsection 827.071(5). See Staff of Fla. S. Comm., CS for HB 731 (1986), Staff Analysis, (rev. April 18, 1986) (on file with comm.). The summary of the "present situation" acknowledges that possession of child pornography is punishable as a third-degree felony under section 827.071(5)....

...Without reading words into the statute or stretching the meaning of the statutory language, we hold that possession of pornographic computer images of actual children constitutes possession of a photograph, representation or other presentation within the meaning of subsection 827.071(5)....

...Accordingly, that the trial court erred in dismissing these counts of the information arising from violations of that subsection. We reverse the trial court's order and remand with directions to reinstate the dismissed counts. GLICKSTEIN and DELL, JJ., concur. NOTES [1] Section 827.071, Florida Statutes (1995), is entitled "Sexual performance by a child; penalties." Subsection (5) provides that: It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or othe...

...The possession of each such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 827.071(5) (emphasis supplied)....

...Clearly, this is not the usual or preferred way of viewing movies. [9] Likewise, State v. Tirohn, 556 So.2d 447 (Fla. 5th DCA 1990), involved a defendant charged with knowingly possessing a video cassette tape that he knew to include sexual conduct by a child pursuant to sections 827.071(5)....

...such conduct. § 847.0135, Fla. Stat. (1995). [13] Section 847.0135 was amended effective October 1, 1996 to increase the penalty for a violation of that section from a first-degree misdemeanor to a third-degree felony, similar to a violation of subsection 827.071(5)....

...[2] We do not feel that we can merely expand the holding in Schmitt v. State, 590 So.2d 404 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992), in which the Florida Supreme Court recognized a "compelling state interest" in protecting minors from "sexual exploitation" under section 827.071, Florida Statutes....

...NOTES [1] Technical violations are insufficient to establish a willful violation. See Reed v. State, 865 So.2d 644 (Fla. 2d DCA 2004); Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002). [2] Standard condition for any defendant whose offense was in violation of chapter 794, section 827.071, or 847.0145, and said offense was committed on or after October 1, 1995....

...LaFrance, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. Following the trial court's denial of Michael Farley's ("Farley") motions to dismiss and suppress, Farley pled nolo contendere to three counts of sexual performance by a child in violation of Florida Statutes section 827.071(5) (1999)....

...2d DCA 1999) (concluding that it was proper to score prior record points based on guidelines in effect at the time of sentencing on the current offense). By way of example, the State seeks to compare 1983 and 1984 military convictions to the Florida sexual performance by a child statute. However, that statute, section 827.071, Florida Statutes, did not become effective until October 1, 1983, after Knarich had committed several of his military offenses....

...urt based Berben's lengthy sentence on improper considerations and findings. Berben was charged with and ultimately found guilty of twenty counts of knowingly possessing, controlling, or intentionally viewing images depicting child pornography under section 827.071(5)(a), Florida Statutes (2015). Significantly, he was not charged under the preceding subsection with promoting (which includes procuring, distributing, and disseminating) or possessing with the intent to promote, any of the images found on his computer. § 827.071(4), Fla....

...Thus, for the two reasons given above, I respectfully dissent from the majority opinion and would affirm the judgment and sentence. According to statistics provided by the Florida Department of Corrections, the average sentence length for the roughly 600 inmates serving time for violating section 827.071(5)(a), Florida Statutes, is 12.3 years....

...ion of sections 777.04 and 794.011, Florida Statutes (1985); count III alleged a lewd act in the presence of a child in violation of section 800.04, Florida Statutes (1985); count IV alleged the use of a child in a sexual performance in violation of section 827.071, Florida Statutes (1985); and count V alleged child abuse in violation of section 827.04, Florida Statutes (1985)....

...Turffs of Kanetsky, Moore & DeBoer, P.A., Venice, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Thomas Hicks appeals his conviction for use of a child in a sexual performance. § 827.071(2), Fla....

...pretending to be interested in buying videotapes of child pornography. Parrella showed the detectives portions of four different videotapes depicting sexual acts involving children. As a result, Parrella was charged with four counts of violation of section 827.071(4), Florida Statutes (1997) [1] ....

...the amount of money involved, it is but one offense"); Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990), approved in part, quashed in part, 590 So.2d 404 (Fla.1991), *96 certiorari denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992) (in section 827.071(5), Florida Statutes (1987), making it a crime to possess child pornography, the legislature, by the use of the word "any" to describe the proscribed items, evinced its intention that possession of several photographs depicting child pornography be treated as a single offense)....

...tograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child ... Whoever violates this subsection is guilty of a felony of the second degree. (Emphasis supplied). § 827.071(4), Fla. Stat. (1997). [2] Section 827.071(5) was amended in 1992, the amendment changing the article "any" to "a," and adding a sentence making the possession of each photograph, motion picture, exhibition, show, representation, or presentation a separate offense. Appellee's argument, that the legislature's failure to similarly amend section 827.071(4) evinces an intent to preclude multiple units of prosecution for violations of subsection (4) in the same criminal episode, though noted, is not the basis of our holding.

...Appellant challenges his convictions, following a jury trial, of one count each of use of a child in a sexual performance and promoting a sexual performance by a child, and two counts of attempted possession of a videotape depicting a sexual performance by a child. He also challenges the sentences imposed. He argues (1) that section 827.071, Florida Statutes (1995), upon which all of the convictions are based, is unconstitutionally vague and irrational as applied to the facts of his case; (2) that the trial court erroneously denied his motion for a judgment of acquittal; (3) that the trial court erroneously gave the jury an instruction requested by the state on the meaning of "performance" as used in section 827.071; and (4) that the trial court erroneously assessed victim injury points for sexual penetration on the sentencing guidelines scoresheet....

...Appellant was subsequently charged in a four-count amended information. Count one alleged that appellant "did knowing the character and content thereof, employ, authorize, or induce a child less than 18 years of age to engage in a sexual performance ... in violation of Section 827.071, Florida Statutes." Count two alleged that appellant "did knowing the character and content thereof, produce, direct, or promote a sexual performance which included sexual conduct by a child less than 18 years of age, in violation of Section 827.071, Florida Statutes." Counts three and four both alleged that appellant "did knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knew included sexual conduct by a child less than 18 years of age, in violation of Section 827.071, Florida Statutes." To the extent relevant, section 827.071, Florida Statutes (1995), reads: (1) As used in this section, the following definitions shall apply: (a) "Deviate sexual intercourse" means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva....

...The possession of each such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Appellant first contends that section 827.071 is unconstitutionally vague and irrational as applied to the facts of his case—i.e., the videotaping of sexually explicit acts involving a willing 16-year-old....

...257, 139 L.Ed.2d 184 (1997). One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Id. at 637. Appellant's conduct which was the subject of the charges brought against him clearly fell within the proscriptions imposed by section 827.071....

...cient to permit the jury to reach the verdicts it did. Appellant next argues that the trial court committed error when it gave to the jury the following instruction requested by the state, explaining the meaning of the word "performance," as used in section 827.071: Performance means any play, motion picture, photograph or dance or any other visual representation exhibited before an audience....

...same ground sought to be argued on appeal). Even if the issue was adequately preserved, however, it is without merit. The instruction is consistent with the evidence presented and correctly states the law. The first paragraph is taken directly from section 827.071(1)(b), and the second paragraph is based upon the decisions in Schmitt v....

...d in addition to the points scored for the sexual contact or the sexual penetration. (Emphasis added.) Appellant was convicted of one count each of use of a child in a sexual performance and promoting a sexual performance by a child, in violation of section 827.071(2) and (3), respectively....

...y a child of less than 18 years of age." "Sexual conduct" is, in turn, defined as including "actual ... sexual intercourse." Therefore, it is clear that sexual penetration (and, thus, victim injury) can be a direct result of an offense proscribed by section 827.071(2) or (3)....

...We reverse the trial court's dismissal order and remand this matter for further proceedings. The state filed a 105-count information against Ronald Farnham. All counts alleged the crime of possession of material depicting sexual conduct by a child in violation of section 827.071(5) of the Florida Statutes (1997)....

...Specifically, the counts alleged that, "between October 11, 1997 and April 27, 1998" Mr. Farnham did "knowingly possess a photocopy, computer image, or other representation, which, in whole or in part" he knew to include "sexual conduct by a child ... contrary to Section 827.071(5), Florida Statutes." Mr....

...t was improper for the state to charge Mr. Farnham with possessing individual pictures which were contained within the larger A:/pictures.zip file, because possession of the individual pictures did not fall within the statutory language set forth in section 827.071(5) which prohibits the "possession of each such photograph, motion picture, exhibition, show, representation or presentation." The trial court conducted a hearing on the motion....

...The state contends that the trial court erred in dismissing counts 19 through 105 of the amended information because Mr. Farnham's possession of the entire A:/pictures.zip file, as well as his possession of each individual computer image contained in his A:/pictures.zip file, constitutes a separate offense under section 827.071(5) of the Florida Statutes. We agree. [1] In considering this issue, we must look to legislative intent behind the enactment of section 827.071 in order to decide the allowable units of prosecution....

...erned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended. See State v. Parrella, 736 So.2d 94 (Fla. 4th DCA 1999). Mr. Farnham was charged in multiple counts with violating section 827.071(5) of the Florida Statutes' which provides in relevant part: 827.071....

...Whoever violates this subsection is guilty of a felony of the third degree ... In applying the above cited case law, we conclude that the state's charging decision fell properly within the legal parameters regarding units of prosecution since the language of section 827.071 relates to possession of "a" pornographic photograph or other representation....

...The defendant's image files contained numerous images of child pornography that "appeared similar to a photograph on a screen." Pursuant to rule 3.190(c)(4), the trial court dismissed 32 counts of the information which charged the defendant with felony possession of child pornography in violation of subsection 827.071(5). In so ruling, the court adopted the defendant's argument that the language of subsection 827.071(5) does not prohibit possession of pornographic images stored on a computer hard drive. Upon review, the fourth district reversed, ruling that a pornographic computer image of an actual child constitutes "a photograph, representation, or other presentation, the possession of which is punishable as a third degree felony under subsection 827.071(5)" of the Florida Statutes....

...The court reasoned that a computer image is encompassed by the plain and ordinary meaning of the phrase "representation or other presentation" as defined in the dictionary and as commonly understood. Id. at 437. The court further ruled that the computer images "may" qualify under subsection 827.071(5) as copies of photographs. Pertinent to the issues raised in the instant appeal, the court noted in a footnote that the only expressed legislative intent behind enacting section 827.071 was to make "the possession of one single depiction illegal." Id....

...ion "arising from violations of that subsection." Id. at 441. Soon thereafter, the fourth district issued an opinion in Schneider v. State, 700 So.2d 1239 (Fla. 4th DCA 1997). In that case, the defendant was charged in multiple counts with violating section 827.071(5)....

...horized because both offenses fall either within the definition of the term "presentation" or the term "representation" for purposes of the statute. Furthermore, as the fourth district noted in Cohen, the expressed legislative intent behind enacting section 827.071 was to make "the possession of one single depiction illegal." Cohen at 438 n....

...Any ambiguity in the allowable unit of prosecution must be resolved in the defendant's favor. See Grappin v. State, 450 So.2d 480, 481 (Fla.1984). The best evidence of legislative intent is the plain language of the statute itself; thus, that is where we begin our analysis. Florida Statutes section 827.071(3) provides that [a] person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age.... § 827.071(3), Fla. Stat. (1995). This section makes it a crime to promote a sexual performance by a child. Relevant to the instant case, "promote" means "procure" or "manufacture." Id. § 827.071(1)(c). A "performance" is defined as any "play, motion picture, photograph, or dance or any other visual representation ...." Id. § 827.071(1)(b)....

...Notably, the word "photograph" is used in the singular. This, we *1005 believe, indicates the legislature's intent to make the production or promotion of each individual photograph a crime. To read the statute as authorizing only a single violation of section 827.071(3), under the facts present here, would require this court to interpret the word "photograph" to mean "photographic session." In United States v. Esch, 832 F.2d 531 (10th Cir.1987), defendants William and Linda Esch were found guilty of sixteen counts of sexual exploitation of a child in violation of 18 U.S.C. § 2251(a), a statute similar to Florida Statutes section 827.071....

...ding in excess of one hundred images of alleged child pornography on Mr. Felix's computer. Mr. Felix was subsequently charged by information with 103 counts of Unlawful Possession of Materials Depicting Sexual Performance by a Child, in violation of section 827.071(5), Florida Statutes (2005)....

...October 30, 1991. Michael J. Kessler of Kessler & Whitton, P.A., Fort Pierce, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph A. Tringali, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Appellant was convicted of violating section 827.071, Florida Statutes (1989), which prohibits the possession of a motion picture that includes a sexual performance by a child, based upon his possession of a videotape seized by police during the execution of a search warrant of his business....

...tions. However, none of these alleged errors were preserved by adequate objection. Finally, appellant contends the court should have granted his motion for a judgment of acquittal because the evidence adduced did not meet the statutory requirements. Section 827.071(5), Florida Statutes (1989) provides: (5) It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child....

...age devices and photography equipment. After reviewing the affidavit, the county judge issued a search warrant authorizing the JSO to search the Defendant’s residence. The judge simultaneously issued a warrant to arrest the Defendant for violating section 827.071, Florida Statutes, Sexual Performance by a child....

...Henson of Muller, Kirkconnell, Lindsey and Snure, P.A., Winter Park, for appellee. GOSHORN, Judge. The State appeals the dismissal of its information charging John B. Tirohn with unlawfully and knowingly possessing a video cassette tape which he knew to include sexual conduct by a child, in violation of section 827.071(5), Florida Statutes (1987)....

...Tirohn was arrested at a location other than his residence for possession of a videotape depicting "prepubescent females engaged in sexual conduct including sexual intercourse and lascivious display of (their) genitals." He was subsequently charged by information with violating section 827.071, Florida Statutes (1987), which provides in pertinent part: (5) It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child....

...Actual physical contact with a persons's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast. 4. Any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. § 827.071(1)(g), Fla. Stat. (1987). This court has recently upheld section 827.071, Florida Statutes (1987) against a claim that the state cannot criminalize mere private possession of obscene materials, even those involving minors....

...antially overbroad and therefore unconstitutional. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); State v. Gray, 435 So.2d 816 (Fla. 1983). We agree that the above examples demonstrate the overbroad nature of a portion of section 827.071(1)(g), to wit: Actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast....

...Fortunately, although PEI has raised this issue by way of defense, we need not reach the issue in light of our disposition on tort grounds. [11] Sexual exploitation of a minor through the use of child pornography by the media is prohibited by Florida Statute § 827.071 (1990)....

...that appeared to be semen. This was more than enough to allow a judge, relying on common sense, to determine that it was fairly probable that the phone contained evidence of images depicting a sexual performance by a child, in violation of Fla. Stat. § 827.071.9 Nor do we agree with Sparks that the affidavit contained insufficient probable cause since it did not attach copies of the photographs that it described. An issuing judge need not personally view photographs or images which are alleged to be contraband if a reasonably specific affidavit describing the contents 9 Fla Stat. § 827.071(5)(a) provides, “It is unlawful for any person to knowingly possess, control, or intentionally view a[n] ....

...the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. Fla. Stat. § 827.071(1)(h) 22  Case: 14-12143 Date Filed: 12/01/2015 Page: 23 of 64 can provide an adequate basis to establish probable cause....

...4th DCA 1986). Hence, a judgment of acquittal should not be granted where the State has produced competent, substantial evidence to support every element of the crime. Gay v. State, 607 So.2d 454, 457 (Fla. 1st DCA 1992). Appellant was charged with violating section 827.071, Florida Statutes (2007), which makes it a crime to knowingly possess a picture, movie, or other presentation which the person knows to include sexual conduct by a child....

...As discussed above, sufficient circumstantial evidence regarding possession was properly presented to the jury. AFFIRMED. PADOVANO and LEWIS, JJ., concur. NOTES [1] Whether constructive possession of child pornography satisfies the "knowingly possess" standard contained in section 827.071(5) has not been directly addressed in Florida jurisprudence; however, other jurisdictions have held such possession to be sufficient, even where the defendant does not actively download illegal material....

...res as an element of an offense involving lewdness that a person witnessing the conduct be offended. To impose such a requirement, the circuit court relied upon the definition of lewd found in Schmitt, a case which concerned the constitutionality of section 827.071, Florida Statutes (1987) (prohibiting sexual performances by a child or the sexual exploitation of children)....

...and the State compounded that error in closing argument. We must order a new trial. Reversed and remanded. THREADGILL, A.C.J., and SALCINES, J., Concur. NOTES [1] See § 794.011(2), Fla. Stat. (1997). [2] See § 800.04(1), Fla. Stat. (1997). [3] See § 827.071(2), Fla....

...95-799 and remand for reinstatement of the original sentences. We reverse defendant's sentences in case no. 95-800 and remand for resentencing after recalculation of defendant's scoresheet. VACATED IN PART, REVERSED IN PART and REMANDED. DAUKSCH and W. SHARP, JJ., concur. NOTES [1] § 827.071(3), Fla....

...State, 397 So.2d 1120 (Fla. 1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Stone v. State, 547 So.2d 657 (Fla. 2d DCA 1989). The defendant also urges us to reverse his conviction for having a child engage in a sexual performance in contravention of section 827.071, Florida Statutes (1987), because the videotape had never been exhibited before an audience as required by section 827.071(1)(b) which states: (b) "Performance" means any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience....

...Watts, 462 So.2d 813 (Fla.1985) that when the article "any" precedes the item, then only one prosecution per criminal episode can take place, even for multiple items. In Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990) we applied the "a/any" test to section 827.071(5), Florida Statutes (1987), dealing with possessing "any" photograph that depicted sexual conduct by a child, and held only one unit of prosecution could lie against a father who possessed seven photographs of his minor daughter's sexual conduct. [3] Subsequent to our decision in Schmitt, the Legislature amended section 827.071 to punish possession of "a" photograph that depicted sexual conduct by a child....

...se of an investigation into the circumstances regarding the theft of the card or its possible unlawful use. This instruction was adopted in 2013. *733 16.11 [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD § 827.071 (5)(a), Fla....

...hich creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks. Lesser Included Offenses *734 [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD— § 827.071(5)(a) CATEGORY ONE CATEGORY TWO FLA....

...2007) (recognizing that the use of “any” is inherently ambiguous, though the “a/any” test is only one means to decipher the legislative intent of a statute). The statutes at issue are similar to an earlier version of a related statute, section 827.071. In Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990), we applied the “a/any” test to construe section 827.071(5), Florida Statutes (1987), which dealt with possession of “any” photograph of sexual conduct of a child....

...a single offense with multiple convictions and punishments precluded.” Schmitt, 563 So. 2d at 1101. Subsequent to our decision in Schmitt, as this court noted in Allen v. State, 82 So. 3d 118 (Fla. 4th DCA 2012): . . . the Legislature amended section 827.071 to punish possession of “a” photograph that depicted sexual conduct by a child....

...State, 580 So.2d 321 (Fla. 1st DCA 1991) (same); Hicks v. State, 561 So.2d 1284 (Fla. 2d DCA 1990) (defendant's ignorance of the victim's age was not a viable defense to defendant charged with use of a child in a sexual performance in violation of § 827.071(2), Fla. Stat.), rev. denied, 574 So.2d 141 (Fla.1990); State v. Robinette, 652 So.2d 926 (Fla. 1st DCA 1995) (violation of § 827.071(2) falls within the category of crimes which furthers the state's compelling interest to protect persons under the age of 18 from being sexually exploited, and on grounds of public policy, certain acts are made punishable without proof that the defendant *1182 understands the facts that give character to his act)....

...Tringali, Assistant Attorney General, West Palm Beach, for appellee. STONE, Chief Judge. We affirm Appellant's conviction and sentence on multiple counts, including nine counts of possessing material that includes sexual performance by a child. We find no error in the trial court's construction of section 827.071(5), Florida Statutes (1995), as covering exposed but undeveloped film in Appellant's camera....

...That section provides: It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child. The possession of each such photograph... is a separate offense. § 827.071(5)(emphasis added)....

...For the reasons explained herein, we reverse the trial court’s denial of Appellant’s motion and remand the case to a different judge for further proceedings. *1193 Background On September 9, 2014, the State of Florida charged Appellant by information with 187 counts of knowingly possessing child pornography contrary to section 827.071(5), Florida Statutes....

...y to apply those words based upon a common understanding. Egal, 469 So.2d at 197. In Schmitt v. State, 590 So.2d 404 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992), the supreme court reviewed the constitutionality of section 827.071, Florida Statutes (1987), which proscribes sexual performances by children....

...The facts indicate that on January 30, 1985, G.W. Carlson of the Jacksonville Sheriff's Department obtained and executed a warrant to search appellant's condominium for photographs and other evidence which he believed appellant to be using in violation of section 827.071(3), Florida Statutes....

...Accordingly, the trial court's entry of summary judgment in defendant's favor on Count Two of appellant's complaint is reversed, and the cause is remanded for further proceedings. REVERSED and REMANDED. THOMPSON and NIMMONS, JJ., concur. NOTES [1] Section 827.071(3) provides: (3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age....

...Gen., Tallahassee, and Laura Griffin, Asst. Atty. Gen., Daytona Beach, for appellant. W. Ford Duane of W. Ford Duane, P.A., Orlando, for appellee. COBB, Judge. We are called upon to review a trial court's dismissal of an information based upon a determination that section 827.071(5), Florida Statutes (1987) is facially unconstitutional....

...h the sex party. Respondent Snyder is charged with three counts of lewd and lascivious assault of a child in violation of Sections 800.04 and 777.04(2), Florida Statutes (2001) and three counts of sexual performance or use of a child in violation of Section 827.071(2), Florida Statutes (2001)....

...y consented or participated voluntarily in the sex party, and (4) what feelings they had concerning the possible sentence that Respondent Snyder might receive. At the hearing on the Motion in Limine the State contended that the offense enumerated in Section 827.071(2) is a strict liability crime and, thus, the prior conduct of the victims or the witnesses was irrelevant and that questions regarding the consent or voluntariness of the victims were also impermissible because proof of age is the only requirement in Section 827.071(2)....

...The trial court ruled that the evidence relating to the church incident and T.C.'s reputation of wanting to be a porno star was admissible. The court also authorized the cross-examination of the minor victims as to whether their conduct was voluntary. This Petition followed. The State contends that the offense prohibited by Section 827.071(2) is a strict liability offense for which no defense is available to the respondents and consequently, the evidence relating to the victims' prior behaviors and possible voluntary participation in the sex party is irrelevant. Section 827.071(2) states as follows: A person is guilty of the use of a child in a sexual performance, if knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of age to engage in a sexual pe...

...While courts have previously held that "lewd and lascivious" conduct in violation of Section 800.04 carries with it the same concept of "strict liability" that has traditionally characterized "statutory rape," it has not previously been made clear as to whether conduct in violation of Section 827.071(2) also carries the concept of "strict liability." See Hicks v....

...Accordingly, we stress that not only is the "lewd and lascivious assault of a child" offense a "strict liability" offense for which there is no defense of any claimed "consent" by the minor alleged to have been the victim of the lewd and lascivious conduct, but this Court specifically holds that the offense prohibited by Section 827.071(2) is also a strict liability offense for which consent cannot be a defense. In other words, if the defendant is found to have participated in those acts which are prohibited by Section 827.071(2), it is irrelevant to the defendant's guilt that the minor child who was employed, authorized, or induced by the defendant to engage in the sexual performance, may have either consented to be so involved or may have even solicited the defendant to allow himself or herself to be so involved. Further defining the statutory language of Section 827.071(2), while the words "employs" and "induces" have very clear and plain meanings, we also hold that it is equally clear that the word "authorizes", as used in that section, refers to an adult, whether related to the minor or not, who kn...

...To the extent that the Respondent(s) either deny being present, deny knowledge of the activities of the minors in question, or, pursuant to Lewis v. State, 591 So.2d 922 (Fla.1991), wish to challenge the credibility and veracity of the minors who claim that the Respondent(s) committed the acts prohibited by Section 827.071(2), then in that case, Respondent(s) shall be entitled to elicit and/or produce evidence, if otherwise admissible, of the type ruled admissible by the trial judge herein....

...ive a very specific limiting instruction to the jury advising the jury (1) that the said evidence may only be considered by the jurors in determining the question of credibility of the minors who claim that the adult committed the acts prohibited by 827.071(2) and (2) that such evidence may not, under any circumstances, be considered by the jurors in connection with determining the guilt of the defendant of the offense charged herein once the jurors determine, if they do, that the question of the children's credibility is decided in favor of the children, to-wit: the jurors believe that the Respondent(s) acted contrary to the provisions of section 827.071(2), regardless of, and notwithstanding, any issue or question relating to any alleged or claimed consent....

...Here, there are none. Moreover, the legislative history of section 847.0135 makes clear that subsection (8) is intended to authorize dual prosecutions; not necessarily dual convictions. In 2007, as part of the same bill, the Legislature amended sections 827.071 and 847.0135 to include the aforementioned language....

...299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932). . The language in the current section 847.0135(8) was first added to section 847.0135 as subsection (7). See Ch. 2007-143, § 5, Laws of Fla.; see also Fla. SB 1004 (2007). . This language referred to the amendment to section 827.071 (relating to sexual perform-anee of a child), which included the exact same language added to section 847.0135....

...A search warrant was issued and executed on May 16, 2002. The officers seized computer equipment, computer disks, a digital camera, and a pornographic tape, among other things, from Jenkins' office at Sechrest Bail Bonds. The State later charged Jenkins with sexual performance by a child in violation of section 827.071(2), Florida Statutes (2002)....

..."The trial court's determination of the legal issue of probable *937 cause is, however, subject to the de novo standard of review." Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Here, the affidavit executed by Detective DeNiro alleged that Jenkins violated section 827.071....

...ubsection (5) prohibits the knowing possession of any depiction known to include "sexual conduct" by a child. "Sexual performance" is defined as "any performance or part thereof which includes sexual conduct by a child of less than 18 years of age." § 827.071(1)(h)....

...area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.... § 827.071(1)(g) (emphasis added)....

...that Jenkins took a photograph and/or video of himself fondling L.D.'s breasts. Sechrest also said that she saw the video of Jenkins fondling L.D.'s breasts on his computer at the bail bonds office. This established the commission element — that a particular person, Jenkins, committed a crime, a violation of section 827.071....

...ar-old L.N.'s breasts in November 2001, did not establish the commission and nexus elements necessary to establish probable cause. As for the commission element, a picture of a minor female's exhibition of her breasts by itself is not a violation of section 827.071. See § 827.071(1)(g) (including in its definition of sexual conduct "actual physical contact" with a minor female's breasts with "the intent to arouse or gratify the sexual desire of either party" and "actual lewd exhibition of the genitals," but not the exhibition of female breasts)....

...ribed with sufficient particularly in the search warrant. Lockwood also alleged that the trial court erred by denying his motions for judgment of acquittal because the evidence adduced at trial did not establish possession of materials proscribed by section 827.071(5), Florida Statutes (1989), the child pornography statute....

...The Fourth District rejected Lockwood's argument as to the motion to suppress, finding that the direction of the warrant was sufficiently broad to cover the videos; nevertheless, the court reversed Lockwood's conviction, finding the videos insufficient to establish a violation of section 827.071(5)....

...ic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. § 827.071(1)(g), Fla....

...he (Schmitt's daughter) had photographed him nude on numerous occasions; and that Schmitt had videotaped his daughter and her friend "stripping down to their panties" and swimming nude. Id. at 408. The application also alleged violations of sections 827.071, Florida Statutes (1987) (sexual performance by a child) and 800.04, Florida Statutes (1987) (lewdness in the presence of a child)....

...Schmitt argued that the warrant application was facially insufficient to support a finding of probable cause because it merely alleged nudity. However, the court held that the application alleged sufficient facts to establish probable cause as to the element of "actual lewd exhibition of the genitals" in section 827.071(1)(g), as well as lewdness in the presence of a child, proscribed by section 800.04....

...d almost obsessive object of his attention" and that an "overall focus of Schmitt's conduct tended to show a lewd *236 intent," thus, creating a substantial basis for believing that the search would probably yield evidence of a violation of sections 827.071 and 800.04....

...Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee. VAN NORTWICK, J. Jeffrey Fawdry appeals a judgment of conviction for five counts of possession of photographs which depicted sexual performance by a child in violation of section 827.071(5), Florida Statutes (2009), asserting that the trial court erred in denying his motion to suppress evidence seized from his cellular telephone....

...and were not admissible under section 90.404(2)(b)(1) as collateral acts of molestation. He contends that taking pornographic photos of a child is not a crime under either section 794.011 or 800.04, but, instead, a violation of a different statute, section 827.071, Florida Statutes. He points out that appellant was separately charged under section 827.071 with twenty-eight counts of promoting sexual performance by a child....

...ude children. Beattie filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). Beattie's sworn motion alleged that: 1. Prior to his arrest, Beattie had never been in possession of any materials which were in violation of Section 827.071, Florida Statutes. [3] 2. Beattie had never before tried to order materials in violation of Section 827.071 Florida Statutes....

...Beattie was not familiar with any of the titles of the videotapes on the list law enforcement provided to him. The state filed a demurrer which asserted that "the facts as alleged by the defendant in the Motion to Dismiss constitute a violation of Florida Statute 827.071(5)." *746 In Munoz, the supreme court adopted a three-part test to determine if entrapment has occurred....

...HALL, A.C.J., and PATTERSON, J., concur. NOTES [1] This court's earlier opinion can be found at 595 So.2d 249 (Fla. 2d DCA 1992). [2] The letters discussed types of movies available, film titles, prices, and usual lengths of time from order to delivery. [3] Section 827.071(5), Florida Statutes (1989) provides as follows: It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child....

...We review the trial court's order granting the defendant's motion to dismiss nineteen counts of the information against Kimberly Brabson, III. Those counts charged the defendant, Brabson, with promotion of a sexual performance by a child, in violation of section 827.071(3), Florida Statutes (2007)....

...Hargrove, 552 So.2d at 282. Moreover, it is not within the province of the trial court to make factual determinations on a motion to dismiss or to consider the weight of conflicting evidence or the credibility of witnesses. Ortiz, 766 So.2d at 1142. Section 827.071(3), Florida Statutes (2007) provides, in pertinent part, as follows: A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age....

...Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. "Sexual performance" is defined as: Any performance or part thereof which includes sexual conduct by a child of less than 18 years of age. Section 827.071(1)(h), Florida Statutes (2007)....

...e sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother's breastfeeding of her baby does not under any circumstance constitute "sexual conduct." Section 827.071(1)(g), Florida Statutes (2007) (emphasis added). The Florida Supreme Court interpreted an earlier version of section 827.071 in Schmitt v....

...The probable cause affidavit recited the daughter's assertions of the various nude photographs taken of her by her father as well as the various photography *1122 and video equipment and tapes and recordings kept by the father in their home. The affidavit also alleged a violation of section 827.071(5), which prohibited any depiction known to include "sexual conduct" by a child....

...y the statute. While nudity alone would not have sufficed, this overall focus of Schmitt's conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of section 827.071. Thus, the magistrate must be upheld. [ Illinois v. ] Gates [462 U.S. 213] 103 S.Ct. [2317] at 2332 [76 L.Ed.2d 527 (1983)]. Schmitt, 590 So.2d at 411 (emphasis added). Thus, the lewdness requirement under section 827.071(1)(g) may be satisfied by the intent of the person promoting the performance which included sexual conduct by the child....

...The warrant application also alleged that, based upon the information received from Fletcher's daughter, the police believed that the purpose of the hidden cameras was to produce child pornography. Child pornography, in turn, requires that suspect videos show children engaged in "sexual conduct" as defined in section 827.071(1)(g), Fla....

...sixteen-year-old girl, apparently unaware that she was being filmed, "undressing, showering, towling herself dry, and performing other acts of feminine hygiene and donning clothing" did not meet the definition *1124 of "sexual conduct" set forth in section 827.071(1)(g), Florida Statutes (1989) as applicable to section 827.071(5), Florida Statutes (1989)....

...Reversed and remanded. NOTES [1] The first segment appears to edit together the same separate instances visible in the third segment, but without the natural progression of time in between different girls present in the third segment. [2] The relevant language in section 827.071, for purposes of this opinion, is unchanged....

..., but he did not request a hearing to contest this charge resulting in his termination from TCC. Appellant was subsequently charged by information with three counts of possession of child pornography, which are third-degree felonies, in violation of section 827.071(5), Florida Statutes (2010)....

...pornography by electronic device, reserving his right to appeal the denial of his dispositive motion to dismiss the charges. He argues that the trial court erred in denying his motion to dismiss the charges of possession of child pornography because section 827.071(5), Florida Statutes (2010), is unconstitutional and void for vagueness....

...1st DCA 2010)—appellant's argument that the trial court did not have jurisdiction, pursuant to section 943.0435, Florida Statutes (2006), to designate him a sexual offender. Mr. Stowe was charged with eighteen counts of possession of child pornography, in violation of section 827.071(5), Florida Statutes (2006), which provides: It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child....

...atute does not contemplate a separate conviction for each child depicted in a single photograph, motion picture, exhibition, show, representation, or other presentation. See Crosby v. State, 757 So.2d 584, 585 (Fla. 2d DCA 2000) ("Subsection (5) [of section 827.071] expressly states that possession of each article shall constitute a separate offense.") (emphasis supplied)....

...Appellant was convicted of promoting sexual performance by a child by videotaping his girlfriend having oral sex with a minor (count II) and possessing pictures he knew included sexual conduct by a child (count III), in violation of Florida Statutes sections 827.071(3) and 827.071(5)....

...The statutes upon which appellant was convicted provide in pertinent part: A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age.... § 827.071(3), Fla. Stat. (1995). It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child.... § 827.071(5), Fla....

...resentation of age, or a defendant's bona fide belief that such victim is over the specified age are not viable defenses. Grady v. State, 701 So.2d 1181 (Fla. 5th DCA 1997). See also State v. Robinette, 652 So.2d 926 (Fla. 1st DCA 1995)(violation of section 827.071(2) falls within the category of crimes which furthers the state's compelling interest to protect persons under the age of 18 from being sexually exploited, and on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act); Schmitt v. State, 590 So.2d 404 (Fla.1991)(section 827.071 expresses an undeniable legislative intent to root out child exploitation); State v. Sorakrai, 543 So.2d 294 (Fla. 2d DCA 1989)(neither ignorance, misrepresentation, nor belief that victim was sixteen was a viable defense under section, 800.049(2), Florida Statutes). *1094 We hold that sections 827.071(3) and 827.071(5), Florida Statutes, which are aimed at protecting persons under the age of eighteen from being sexually exploited, do not require that a defendant know that the victim is less than eighteen years of age....

...Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee. WOLF, J. A.H. challenges her adjudication of delinquency for producing, directing or promoting a photograph or representation that she knew included sexual conduct of a child in violation of section 827.071(3), Florida Statutes....

...and J.G.W. emailed the photos to another computer from A.H.'s home. A.H. and J.G.W. were each charged with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child, in violation of section 827.071(3), Florida Statutes. [1] A.H. filed a motion to dismiss on October 24, 2005, arguing that section 827.071(3), Florida Statutes, was unconstitutional as applied to her....

...Not prosecuting the child would do nothing to further the State's interest. Prosecution enables the State to prevent future illegal, exploitative acts by supervising and providing any necessary counseling to the child. The Court finds that the State has shown that Section 827.071(3), Florida Statutes, as applied to the child, is the least intrusive means of furthering the State's compelling interest in preventing the sexual exploitation of children, rendering the statute constitutional....

...ehavior until their minds and bodies had matured. A.H. argues that prosecuting her for the second-degree felony of promoting a sexual performance by a child was not the least intrusive means of furthering this interest. Therefore, she maintains that section 827.071(3), Florida Statutes, is unconstitutional as applied to her, and the trial court's ruling to the contrary must be reversed....

...course and that this right of privacy extends to situations where the minor memorializes the act through pictures or video. We cannot accept this argument. In State v. A.R.S., 684 So.2d 1383 (Fla. 1st DCA 1996), we addressed the constitutionality of section 827.071(3), Florida Statutes, the same statute at issue in this case....

...inor had videotaped himself involved in sexual conduct with a female minor and played the videotape for a third party. Assuming that a minor's privacy interests are implicated in the instant case, we recognize that the state's compelling interest in section 827.071 is different....

...The state's purpose in this statute is to protect minors from exploitation by anyone who induces them to appear in a sexual performance and shows that performance to other people. See Schmitt v. State, 590 So.2d 404, 412 (Fla.1991) (stating that the "obvious purpose" of section 827.071 "is to prohibit certain forms of child exploitation"), cert....

...Appellant asserts that the State only has a compelling interest when the photograph or video is shown to a third party. The Legislature has, however, recognized a compelling interest in seeing that the videotape or picture including "sexual conduct by a child of less than 18 years of age" is never produced. § 827.071(3), Fla....

...The State has a compelling interest in seeing that material which will have such negative consequences is never produced. The decision of the trial court is affirmed. THOMAS, J., concurs; PADOVANO, J., dissents with opinion. PADOVANO, J. dissenting. Section 827.071(3) Florida Statutes was designed to protect children from abuse by others, but it was used in this case to punish a child for her own mistake....

...in a sexual activity and then played the videotape to a third person at a time when the female was not present. The act of displaying the videotape was the main reason the court gave for its decision. As the court explained, "The state's purpose in [section 827.071] is to protect minors from exploitation by anyone who induces them to appear in a sexual performance and shows that performance to other people....

...The child in that case was prosecuted under a different statute, but the constitutional principles are the same and they should be applied in the same way in this case. NOTES [1] J.G.W. was also charged with one count of possession of child pornography under section 827.071(5), Florida Statutes (2005).

...of Law Enforcement searched the computer hard drive and found files containing images of children involved in sexual conduct. The State charged Wade in counts one through three with possession of child pornography with intent to promote, pursuant to section 827.071(4), Florida Statutes (1995)....

...aphic file. Count three was based on four images of the same photo law enforcement retrieved and printed from the computer hard drive files. In counts four through fifty-seven, the State charged Wade with possession of child pornography, pursuant to section 827.071(5), Florida Statutes (1995)....

...First, we reject Wade's argument that the prosecutor should have charged him on the counts relating to the computer hard drive files under section 847.0135, Florida Statutes (1995), which specifically deals with computers and child pornography, rather than under section 827.071, Florida Statutes (1995), which prohibits child pornography in general....

...Thus, the trial court correctly denied Wade's motion for judgment of acquittal on this ground. Wade also contends that the trial court should not have adjudicated him guilty of more than one count of possession of child pornography with intent to promote. Section 827.071(4), Florida Statutes (1995), provides the following: It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child....

...Parrella was charged with four counts of possession of child pornography with intent to promote for showing portions of four different videotapes to undercover detectives on one occasion. The Fourth District affirmed the dismissal of three of the four counts and held that the legislature's use of the modifier "any" in section 827.071(4) showed an intent "that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended." Id....

...State, 724 So.2d 1176 (Fla.1998) (holding that section 843.01, Florida Statutes (1993), which prohibits resisting "any officer," allowed only one conviction when the defendant resisted two officers in a single incident). The State suggests that the Parrella decision is incorrect and points to the portion of section 827.071(4) which provides, "The possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote." The State contends that this language evinces an intent to prosecute for each set of different photos....

...or Juvenile Sexual Offender placement. In support thereof, movant would show: ..... that the juvenile has been found by the court, under section 985.228985.35, Florida Statutes, to have committed a violation of chapter 794, chapter 796, chapter 800, section 827.071, or section 847.0133, Florida Statutes; or ........

...committing, or attempting, soliciting, or conspiring to commit, any of the criminal offenses proscribed in the following statutes in this state or similar offenses in another jurisdiction: § 787.025; chapter 794; § 796.03; § 800.04; § 825.1025; § 827.071; § 847.0133; 847.0135; § 847.0145; or any similar offense committed in this state which has been redesigned from a former statute number to one of those listed in this subparagraph....

...A pretrial motion to suppress is not preserved for appellate review unless the defendant makes a specific, contemporaneous objection at the time the evidence is admitted. See Davis v. State, 728 So.2d 341 (Fla. 1st DCA 1999). Pendarvis also challenges the constitutionality of section 827.071(5), Florida Statutes (1995), and raises reasons why he should not be prosecuted for numerous photographs which are contained on a single computer hard drive....

...rm control, care, and treatment. In the present case, appellant’s qualifying or "index” offense was “promoting sexual performance by a child” by photographing children in partial stages of undress in sexually suggestive poses in violation of section 827.071, Florida Statutes (2005)....

...Beisner, Assistant Attorney General, Tallahassee, for Appellant. Thomas L. Powell, Tallahassee, for Appellee. PER CURIAM. The State appeals the trial court order dismissing two counts of the delinquency petition charging A.R.S. with violation of sections 827.071(2) and (3), Florida Statutes (1995), on the grounds of equal protection and the right to privacy....

...We reverse on both grounds. A delinquency petition was filed on October 9, 1995, charging appellee with the following: Count I—knowingly employing, authorizing, or inducing a child of less than 18 years of age to engage in a sexual performance, contrary to section 827.071(2); Count II—knowingly producing, directing, or promoting a performance including sexual conduct by a child of less than 18 years of age, contrary to section 827.071(3); and Count III—possessing a videotape of a sexual performance by a child with the intent to promote presentation of the videotape, contrary to section 827.071(4)....

...were similarly situated because she also participated in operating the video camera and the State's decision to prosecute A.R.S. was based on appellee's gender. Appellee failed to meet the first prong of the selective prosecution test as to Count II of the delinquency petition. The second count alleged that appellee violated section 827.071(3), Florida Statutes, which provides as follows in pertinent part: A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. The statute defines "promote" as follows: "to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same." § 827.071(1)(c), Fla.Stat....

...s in this case stemmed from selective prosecution which violated appellee's right to equal protection. Next we turn to the State's claim that the trial court erred in dismissing Counts I and II of the delinquency petition on the ground that sections 827.071(2) and (3) are unconstitutional as applied to cases in which both the victim and defendant are minors....

...induces them to engage in a "sexual performance," even when both victim and defendant are minors. Appellee, on the other hand, argues that prosecuting him under the statute violates his Florida constitutional right to privacy and thus that sections 827.071(2) and (3) are unconstitutional as applied to consensual acts between minors....

...furthering what we have determined to be the State's compelling interest. Id. at 259 (citations omitted). The instant case, however, is distinguishable from B.B. v. State . Appellee was charged in the delinquency petition with violation of sections 827.071(2) and (3), which provide as follows: (2) A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he employs, authorizes, or induces a child less than 18 years of age to engage in a sexu...

..., section 794.05, is "protecting the minor from the sexual activity itself for reasons of health and quality of life." Assuming that a minor's privacy interests are implicated in the instant case, we recognize that the state's compelling interest in section 827.071 is different....

...The state's purpose in this statute is to protect minors from exploitation by anyone who induces them to appear in a sexual performance and shows that performance to other people. See Schmitt v. State, 590 So.2d 404, 412 (Fla.1991) (stating that the "obvious purpose" of section 827.071 "is to prohibit certain forms of child exploitation"), cert....

...sexual performance and then promoting that performance is an adult or a minor. [3] Because the statute protects children from exploitation through the least intrusive means of furthering this compelling state interest, the trial court's holding that section 827.071(2) and (3) is unconstitutional as applied to minors is reversed....

...denied, 517 U.S. 1157, 116 S.Ct. 1547, 134 L.Ed.2d 650 (1996), we vacate the trial court's order and remand for further proceedings. Ross has been charged with thirty counts of possessing material depicting sexual conduct by a child in violation of section 827.071(5) of the Florida Statute (1999)....

...It was error to dismiss the probation violation proceeding. REVERSED and REMANDED. SAWAYA and PALMER, JJ., concur. NOTES [1] According to this section, special conditions must be imposed for probationers who are placed under supervision for violation of chapter 794, § 800.04, § 827.071, or § 847.0145.

...“When the language of a statute is clear and. unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation to alter the plain meaning.” State v. Cohen, 696 So.2d 435, 438 (Fla. 4th DCA 1997). The plain language of section 827.071(5)(a), Florida Statutes, demonstrates that the legislature intends to punish the possession of each individual de-' *342 piction of sexual conduct by a child....

...r other presentation that is knowingly possessed, controlled, or intentionally viewed is a separate offense. A person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 827.071(5)(a), Fla. Stat. (2012) (emphasis added). In contrast, section 827.071(4), Florida Statutes (2012), governing possession of child pornography with intent to promote, a second degree felony, has been interpreted to impose only a single punishment for multiple depictions that constitute a single “episode of promotion.” See Cocking v. State, 154 So.3d 1198, 1199 (Fla. 2d DCA 2015); State v. Parella, 736 So.2d 94 , 96 (Fla. 4th DCA 1999). However, while section 827.071(4) prohibits possession with intent to promote “any” depiction, section 827.071(5)(a) prohibits “a” depiction and “each” depiction....

...As the language of the statute clearly indicates, each depiction of a child engaged in sexual conduct is to be punished separately, and even a single image could constitute multiple offenses if it depicts sexual conduct involving more than one child. § 827.071(5)(a), Fla....

LaROSE, Judge. Danny Parker appeals his convictions and sentences for possession of child pornography. See §§ 775.0847, 827.071(5), Fla....

...To prove the crime of possession of child pornography, a person must ‘“knowingly possess a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.’ ” 58 So.3d at 875 (emphasis omitted) (quoting § 827.071(5)). As defined in section 827.071(l)(g), “sexual conduct” includes “actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]chistic abuse; actual lewd exhibition of the genitals; actual physical contact w...

..., with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.” Stelmack, 58 So.3d at 876 (emphasis omitted) (quoting § 827.071(l)(g)); accord § 775.0847(l)(f)....

...58 So.3d at 876 . But, we held that a conviction required exhibition by a child. Id. at 877 . Because the Stelmack photographs contained only images of adult genitalia, there was no “sexual conduct by a child” and, consequently, no violation of section 827.071(5)....

...To be sure, the three remaining photographs before us are markedly different from those in Stelmack . Each depicts a child’s head superimposed on a body of an adult female engaged in sexual intercourse, deviate sexual intercourse, or masturbation. The conduct falls within the scope of section 827.071(l)(g)....

...It bears repeating that a person is guilty of possessing child pornography if he “knowingly possess[es] a photograph, ... representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.” § 827.071(5) (emphasis added). No matter how one parses the words, section 827.071 requires that the depicted sexual conduct be that of a child....

...The content of the three photographs offers us no meaningful basis on which to distinguish Stelmack . With *454 out the sexual conduct of a child, the three photographs elude the statute’s reach. We are not persuaded by the dissent’s effort to distinguish Stelmack : section 827.071(l)(g) extends to “actual” or “simulated” “sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]ehistic abuse,” which include the conduct involved here, but excludes the word “simu...

...s engaged in sexual activity. Respectfully, we must disagree. “Simulated” is “the explicit depiction of conduct ... which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” § 827.071(l)(i)....

...1830 . Williams’ analysis leads us to the same conclusion regarding Mr. Parker’s depictions; no child engaged in simulated conduct and no reasonable viewer could believe so. To the extent that legislative history is a guide, we note that in enacting section 827.071, the legislature apparently was concerned with the exploitation of children....

...mack, 58 So.3d at 876 -77 (quoting Fla. H.R. Comm, on Crim. Just., H.R. 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.)). 4 *455 The titles given to the statute are also instructive. Chapter 827 is titled “Abuse of Children” and section 827.071 is titled, “Sexual performance by a child; penalties.” We observed in Stelmack that the legislative history “reveals that it was aimed at preventing the exploitation of children in sexual performances.” Stel-mack, 58 So.3d at 876 ....

...s to indicate an intention to display them, we must emphasize that the State did not charge Mr. Parker with distribution of or intent to distribute obscene photographs. See § 847.011(l)(a), Fla. Stat. (2007). 5 Neither was he charged with violating section 827.071(4), which prohibits “possess[ion] with the intent to promote any photograph ... which, in whole or in part, includes any sexual conduct by a child.” 6 Even if the State had charged Mr. Parker under section 827.071(4), conviction still would have required sexual conduct by a child....

...Possession of the photographs is the only crime charged. Although not binding on us, we recognize that the New Hampshire Supreme Court in State v. Zidel, 156 N.H. 684 , 940 A.2d 255 (2008), reached a similar result under a statute remarkably similar to section 827.071. The dissent discusses federal cases involving First Amendment challenges to a broader federal child pornography statute, 18 U.S.C. § 2256 (8)(C). The constitutionality of federal statutes is of little aid in interpreting the scope of section 827.071(5)....

...gaging in sexually explicit conduct, for the lasciviously posed body is that of a child.” Id. There was no question but that the depicted sexual conduct was that of a child. We assume that such a photograph certainly would fall within the scope of section 827.071(5)....

...ually explicit conduct depicted therein. Hotaling, 599 F.Supp.2d at 322 . As this overview demonstrates, Congress enacted child pornography legislation three times, in 1994, 1996, and 2003; each time it broadened the definition of child pornography. Section 827.071(5) requires that actual children engage in sexual conduct....

...As the federal experience reflects, if our legislature wants to follow Congress’s example and prohibit the possession of the types of photographs involved here, we are confident that it can, and perhaps should, craft an appropriate statute. Although the parties urge us to consider the First Amendment ramifications of section 827.071, we confine our analysis to the statutory language....

...Chapter 847 covers obscene materials. See, e.g., § 847.011, Fla. Stat. (2007) (prohibiting (1)distribution or possession with intent to distribute obscene material including photographs and (2) possession of obscene materials without intent to distribute). . Section 827.071 proscribes four levels of the offense of sexual performance by a child: (2) use of a child in a sexual performance, a second-degree felony; (3) promoting a sexual performance by a child, a second-degree felony; (4) possession with int...

...felony; and (5) possession of an item described in (4), a third-degree felony. . Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act. Hotaling, 599 F.Supp.2d at 307 . . At least one district court of appeal has held section 827.071(5) constitutional on its face....

...limitations set forth in section 775.15, Florida Statutes (2008). BACKGROUND AND FACTS On July 20, 2012, Brian Michael Robinson was charged in an information in Count 1, a second-degree felony, with promoting sexual conduct by a child in violation of section 827.071(3), Florida Statutes (2007), and Counts 2 through 10, third-degree felonies, with possession of a photograph, motion picture, exhibition, show, representation or other presentation, to-wit, video or images, which included sexual conduct by a child in violation of section 827.071(5), Florida Statutes (2007). After Robinson was arrested on a longstanding warrant for possession of child pornography, he filed a motion to dismiss, claiming that the statute of limitations applicable to second- and third-...

...-4- wife, who put them into telephone contact with Robinson, who was then in Florida. On that same day in June 2012, Investigator Watkins made arrangements with Robinson to turn himself in.2 The Information charging violations of section 827.071, Florida Statutes, was subsequently filed on July 19, 2012. Robinson’s counsel argued at the motion to dismiss hearing that even though Robinson was outside Florida for most of the time during the limitations period, the S...

download them. Mallet was charged under section 827.071(5), Florida Statutes (2010), with one hundred

...Stat: To prove the crime of Unlawful Residency by a Sex Offender, the State must prove the following elements beyond a reasonable doubt: L (Defendant) was convicted of Give a orb as applicable. a. [Florida Statute 794.011] [Florida Statute 800.04] [Florida Statute 827.071] [Florida Statute 847.0135(5) ] [Florida Statute 847.0145] b. a crime in another jurisdiction other than the State of Florida that is similar to Florida Statute [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145] 2. The victim of that crime was less than 16 years of age when the crime was committed. 3. Give a orb as applicable. a. The date that the crime occurred for the defendant’s conviction of Florida Statute [794.011] [800.04] [827.071] [847.0135(5) ] [847.071] was on or after October 1. 2004. b. The date that the crime occurred for the defendant’s conviction in another jurisdiction that is similar to Florida Statute [794.011] [800.04] [827.071] [847.0135(5) ] [847.071] was on or after May 26, 2010....

...See Fla. Stat. 775.215(2)(b). If you find the defendant guilty of Unlawful Residency by a Sex Offender, you must then determine in your verdict whether the State has proven beyond a reasonable doubt that the conviction for Fla. Stat. [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145] was classified as a felony of the [first degree or higher] [second or third degree]....

...If you find the defendant guilty of Unlawful Residency by a Sex Offender, you must then determine in your verdict whether the State has proven beyond a reasonable doubt that the conviction in the other jurisdiction for the crime that was similar to Fla. Stat. [794.011] [800.04] [827.071] [847.0135(5) ] [847.0145] resulted in a penalty that is substantially similar to a felony of the [first degree or higher] [second or third degree]....

...1002.415].] [“School” does not include facilities used exclusively for the education of adults.] Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment § 79U-011 Fla. Stat. is Sexual Battery. § 800.0⅛ Fla. Stat. is Lewd or Lascivious Conduct. § 827.071 Fla....

...dence from October 2006 2 The LimeWire program is a peer-to-peer file sharing program which allows outsiders to access files on any computer also programmed with LimeWire. 3 Ortiz’s affidavit referenced Fla. Stat. § 827.071(5), making it a crime for “any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which ....

...was unsure but only thought the camera was in Sarras’s house. Nonetheless, the affidavit accurately represented E.M.’s statement that Sarras took the pornographic pictures while in his house. It is Sarras’s possession of the photos, not the camera, that constitutes a crime under Florida statute § 827.071(5) (making it a felony to unlawfully possess material known to include sexual conduct by a child). Third, although Officer Ortiz’s affidavit did not mention that E.M....

...The only Florida statute that defines sexual intercourse is the incest statute, section 826.04, Florida Statutes (2008). It defines sexual intercourse as “the penetration of the female sex organ by the male sex organ.... ” § 826.04. Other statutes include the phrase sexual intercourse within definitions. See § 827.071(l)(a), Fla....

...iguity.” Maddox, 923 So.2d at 449 -50 (quoting St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982)). The legislature may, of course, amend the statute to broaden its application. See, e.g., § 796.08(4), Fla. Stat. (2008); § 827.071(l)(g)....

...The only Florida statute that defines sexual intercourse is the incest statute, section 826.04, Florida Statutes (2008). It defines sexual intercourse as "the penetration of the female sex organ by the male sex organ. . . ." § 826.04. Other statutes include the phrase sexual intercourse within definitions. See § 827.071(1)(a), Fla....

...rom ambiguity." Maddox, 923 So.2d at 449-50 (quoting St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1073 (Fla.1982)). The legislature may, of course, amend the statute to broaden its application. See, e.g., § 796.08(4), Fla. Stat. (2008); § 827.071(1)(g)....

...Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, J. Kevin G. Jalbert appeals his convictions of one count of promoting a sexual performance by a child in violation of section 827.071(3), Florida Statutes (2001), and fifty-nine counts of unlawful possession of child pornography, in violation of section 827.071(5), Florida Statutes (2001)....

...Butterworth, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee. DANAHY, Acting Chief Judge. The state charged the appellant with two counts of possessing a photograph which the appellant knew to include sexual conduct by a child, a violation of section 827.071(5), Florida Statutes (1995)....

...Because the record attachments and the court's rationale do not conclusively refute his claims, we reverse. Rodriguez was charged in case number 89-4852 with violating probation and in case number 01-2298 with four hundred counts of possessing material containing sexual conduct by a child in violation of section 827.071(5), Florida Statutes (2001)....

...Accordingly, the word "immoral" is severable and should be deleted. Id. at 735. The supreme court in Schmitt v. State, 590 So.2d 404 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1572, 118 L.Ed.2d 216, 60 U.S.Law Weekly 3674 (U.S.Fla. Mar. 30, 1992), affirmed the Fourth District's determination that section 827.071(1)(g), Florida Statutes (1987), was unconstitutionally overbroad....

...Appellant was convicted on multiple counts of sexual activity by a person in custodial authority with a child under section 794.041(2)(b), Florida Statutes (1991), of sexual battery on a person less than 12 years of age under section 794.011(2), and of promoting the sexual performance of a child under section 827.071(3)....

...Given the language in Chesebrough, Plaintiffs' argue, Bell should be read to establish an "offensiveness to others" element within § 796.07. Plaintiffs also rely on Schmitt v. State, 590 So.2d 404 (Fla.1991). There, the Florida Supreme Court interpreted the term "lewd" in the context of two felony statutes, Fla. Stat. § 827.071 (prohibiting the knowing possession of any depiction known to include sexual conduct by a child) and Fla....

...Subsequently, the IRCSO conducted its investigation, admittedly failing to comply with its own internal procedures for making a mirror image of the hard drive immediately to preserve the evidence. The Information charged the defendant with seven counts of possession of child pornography, pursuant to section 827.071(5), Florida Statutes (2001)....

..."The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction." Id. (citations omitted) (two State's witnesses testified defendant committed the crime while two said he did not). Defendant was charged under section 827.071(5) of the Florida Statutes: It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child....

...The possession of such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense. Whoever violates this subsection is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 827.071(5), Fla. Stat. (2001) (emphasis added). In State v. Cohen, this court held that "a pornographic computer image of an actual child constitutes a photograph, representation or other presentation" under section 827.071(5) of the Florida Statutes (1995)....

...Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee. FULMER, Judge. Charles McMillan appeals his conviction and sentence for promoting a sexual performance by a child, in violation of section 827.071(3), Florida Statutes (1999)....

...John Stelmack was found to be in possession of several images showing the faces and heads of two girls, ages eleven and twelve, cut and pasted onto images of a nineteen-year-old woman lewdly exhibiting her genitals. A jury found him guilty of five violations of section 827.071(5), Florida Statutes (2007), which proscribes the knowing possession of a photograph or representation that, in whole or in part, includes “sexual conduct by a child.” We must decide if the trial court erred in denying Stelmack’s motion for judgment of acquittal in which he argued that the evidence was insufficient to establish guilt because the composite images do not vio *875 late section 827.071(5) as a matter of law....

...nce of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. Thus, in order to sustain Stelmack’s convictions, the evidence must support five counts of possession of child pornography under section 827.071(5). Section 827.071(5) proscribes the possession of child pornography, in pertinent part, as follows: It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child....

...al desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” § 827.071(l)(g) (emphasis added). The only applicable type of sexual conduct depicted by the images in this case would be “actual lewd exhibition of the genitals.” Reading the two provisions together, section 827.071(5) requires that the images in question include actual lewd exhibition of the genitals by a child. There is no dispute in this case that the genitals in the images are exhibited by an adult. Thus, possession of these images is not a violation of section 827.071(5). At most, the images depict a simulated lewd exhibition of the genitals by a child. However, the legislature specifically excluded simulated lewd exhibition from the definition of sexual conduct in section 827.071(l)(g). Section 827.071(l)(g) uses the terms “actual or simulated” to describe “sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse” but does not use the term “simulated” to describe “lewd e...

...nstruction known as ex-pressio unius est exclusio alterius, 1 the absence of this term may be considered an expression of legislative intent to exclude simulated lewd exhibition of the genitals from the crime of possession of child pornography under section 827.071(5)....

...conduct, where ... such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct. 18 U.S.C. § 2256 (8)(C) (2008) (emphasis added). Furthermore, the legislative history of section 827.071 reveals that it was aimed at preventing the exploitation of children in sexual performances, and no children engaged in sexual performances to create the composite images in this case. Chapter 827 is entitled “Abuse of Children,” and the title of section 827.071 is “Sexual performance by a child; penalties.” When section 827.071 was created in 1983, the bill that led to its creation was summarized in a staff summary prepared for the joint legislative committee. The summary includes the following explanation of the intent of section 827.071: *877 The intent of this legislation is to facilitate the prosecution of persons who use or promote any sexual performance by a child, which is not necessarily obscene....

...We do not mean to suggest that the possession of composite images of real children that simulate lewd and lascivious exhibition of the children’s genitals should not be criminalized. However, there is no indication in either the plain language of section 827.071(5) or its legislative history that the legislature intended to do so....

...Thus, even if the statutory language were susceptible to different meanings, we would be compelled by the rule of lenity to construe it in Stelmack’s favor. See § 775.021(1), Fla. Stat. (2007); Clement, 895 So.2d at 448 . The State argues that the images are proscribed by the plain language of section 827.071(5) because they are photographs or representations “which ......

...sexual conduct by a child.” (Emphasis added.) In support of this argument, the State relies on the case of United States v. Bach, 400 F.3d 622 (8th Cir.2005), in which the circuit court upheld a conviction based on the receipt of a similar type of composite photograph. We do not agree that an application of section 827.071(5) can be based on a claim that the images in this case partially depict the lewd exhibition of the genitals of a child. We recognize that section 827.071(5) proscribes the knowing possession of a photograph or representation “which, in whole or in part, he or she knows to include any sexual conduct by a child.” However, when the sexual conduct at issue is the “actual lewd exhibition of the genitals” as defined in section 827.071(l)(g), at least some part of the image must in fact display a child who is actually lewdly exhibiting his or her genitals....

...ly includes composite images in its definition of child pornography. See 18 U.S.C. § 2256 (8)(C). In conclusion, composite images must include actual lewd exhibition of the genitals “by a child” in order for their possession to be proscribed by section 827.071(5). Unseemly as the images in this case may be, their possession is not proscribed by section 827.071(5) because the only sexual conduct in the images is that of an adult....

...2007) (recognizing that the use of “any” is inherently ambiguous, though the “a/any” test is only one means to decipher the legislative intent of a statute). The statutes at issue are similar to an earlier version of a related statute, section 827.071. In Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990), we applied the “a/any” test to construe section 827.071(5), Florida Statutes (1987), which dealt with possession of “any” photograph of sexual conduct of a child....

...a single offense with multiple convictions and punishments precluded.” Schmitt, 563 So. 2d at 1101. Subsequent to our decision in Schmitt, as this court noted in Allen v. State, 82 So. 3d 118 (Fla. 4th DCA 2012): . . . the Legislature amended section 827.071 to punish possession of “a” photograph that depicted sexual conduct by a child....

...Because Appellant’s claims are not cognizable in a 3.800(a) motion, the appeal must be affirmed. The State charged Appellant with fourteen counts of possession of child pornography. Each count was a third-degree felony offense in violation of section 827.071(5), Florida Statutes. A jury found Appellant guilty on all counts....

See § 800.04(1), Fla. Stat. (1995). . See § 827.071(5), Fla. Stat. (1995). . In light of the First

...f sexual battery substantially easier to commit or lessened risk of detection given that front door had been broken). *79 Bishop also challenges the denial of his motion for judgment of acquittal on the use of a child in a sexual performance charge. Section 827.071, Florida Statutes (2006), prohibits an individual from employing, authorizing, or inducing a child less than eighteen years of age to engage in a sexual performance. “Sexual performance” means any performance or part thereof which includes sexual conduct by a child of less than eighteen years of age. § 827.071(l)(h), Fla. Stat. (2006). “Performance” means “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” § 827.071(l)(b), Fla....

...hen deleted the images from his camera. Bishop also contends that to obtain a conviction for using a child in a sexual performance, there must be evidence that the performance was exhibited before an audience. Florida courts have uniformly construed section 827.071 to permit a conviction even where the video tape of the child’s engagement in sexual conduct is not shown to third persons....

...AFFIRMED, in part; REVERSED, in part; REMANDED. JACOBUS, J., concur. COHEN, J., concurs and concurs specially with opinion. . § 787.01(3)(a), Fla. Stat. (2006). . § 800.04(5), Fla. Stat. (2006). . § 800.04(6), Fla. Stat. (2006). . § 800.04(7), Fla. Stat. (2006). . § 827.071(2), Fla....

...3d DCA 2009) (citing and quoting Mangold with approval). In light of the foregoing we do not feel constrained to adopt, as did the Second District, the definition of “sexual intercourse” contained in other statutes, see § 826.04, Fla. Stat. (2013) (criminalizing incest between related persons); § 827.071, Fla....

instructions 16.7 through 16.11 are based upon section 827.071, Florida Statutes (2007), and instruct upon

...or Juvenile Sexual Offender placement. In support thereof, movant would show: .... that the juvenile has been found by the court, under section 39415898.5.228, Florida Statutes, to have committed a violation of chapter 794, chapter 796, chapter 800, section 827.071, or section 847.0133, Florida Statutes; or .......

...vindictive. However, a closer reading of these cases reveals that they are distinguishable. In Godwin v. State, 116 So.3d 1280, 1280 (Fla. 5th DCA 2013), the appellant “was charged with twenty-three counts of possession of child pornography under section 827.071(5), Florida Statutes (2011).” Id....

...He pleaded nolo contendere to counts one through ten and, in exchange, the State nolle pressed the remaining thirteen counts. Id. The trial court sentenced him to ten years on each of the ten counts, all to be served concurrently. Id. On appeal, this Court reversed the sentence because the maximum penalty for a violation of section 827.071(5) was five years in prison....

...Stephen Chesser appeals the denial of his motion for postconviction relief. We reverse in part.  Chesser entered open guilty pleas to nine counts of possession of photographs depicting sexual conduct by a child with intent to promote, § 827.071(4), Fla. Stat. (2005), and to sixty counts of possession of child pornography, § 827.071(5). The court sentenced him to concurrent terms of fifteen years' imprisonment on counts one through five, concurrent terms of fifteen years' imprisonment on counts six through nine, and concurrent terms of five years' imprisonment on counts ten through sixty. The three blocks of concurrent terms ran consecutively to each other, for a total sentence of thirty-five years' imprisonment. Counts one through nine were the charges of possession with intent to promote, § 827.071(4). Chesser appealed his convictions, and this court affirmed them....

...ency examination of Chesser before he entered his pleas. But we reverse the denials of Chesser's other two grounds, which alleged ineffective assistance concerning his convictions and sentences for possession with intent to promote. Section 827.071(4) provides: It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child....

...as opposed to "a photograph." When the legislature has employed the word "a," "courts have discerned a legislative intent that each item of contraband be the basis for a separate unit of prosecution." But if, instead, the word "any" is used, as in subsection 827.071(4), "courts have discerned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended." Id. at 95. Thus the court held that the four different videotapes Parrella showed the officers could support only one conviction under section 827.071(4). In Wade v....

...enforcement discovered three or more printed reproductions of three photographs.1 Wade was charged with, and a jury convicted him of, three counts of possession with intent to distribute. Wade argued that Parrella supported a conviction for only one section 827.071(4) crime for all the images discovered in the search of his rooms. The Wade court agreed. It held that the multiple copies of the photographs provided evidence of Wade's intent to promote the photos. But because they were all discovered in one search, there was only one episode of promotion, and therefore only one conviction for a section 827.071(4) crime was permissible. Id. at 671 (citing Parrella). See also Crosby v. State, 757 So. 2d 584 (Fla. 2d DCA 2000) (contrasting the language of section 827.071(5) which made it unlawful to possess a pornographic photograph of a child and therefore permitted separate prosecutions for each photograph discovered in a single search with the language in section 827.071(4) making it unlawful to possess any such photograph with intent to promote); Hudson v. State, 761 So....

...nine counts." Its ruling was legally incorrect under the holdings of Parella, Wade, and Hudson. The dates that the images were created was not determinative; if law enforcement discovered all the images in one search, they supported only one conviction under section 827.071(4). Chesser's counsel was unaware that under the facts of the case his client legally could be convicted of only one count of possession of child pornography with intent to promote....

...668 (1984)). We reverse the postconviction court's denial of grounds II and III in Chesser's rule 3.850 motion. When Chesser was sentenced, the court imposed the maximum penalty allowed by law, fifteen years' imprisonment, on each count. See § 827.071(4); 775.082(3)(c)....

...Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) allows a defendant to “expressly reserve the right to appeal a prior dispositive order of the lower tribunal.” The issue raised is not dispositive because a favorable ruling from us on the appeal would leave the defendant subject to prosecution of the charges under section 827.071(5)(a), Florida Statutes (2012)....

...State, 766 So.2d 475 (Fla. 4th DCA 2000), rev. denied, 804 So.2d 329 (Fla.2001). Section 948.03(6), Florida Statutes, provides, in pertinent part: “The sentencing court may only impose a condition of supervision allowing an offender convicted of § 794.011, § 800.04, § 827.071, or § 847.0145, to reside in another state, if the order stipulates that it is contingent upon the approval of the receiving state interstate compact authority.” § 948.03(6), Fla....

...individual paragraphs and the paragraph citing Knighton did not include the referencing asterisk. We have modified the comment so that it is consistent with the other instructions herein at issue. -3- those in sections 827.071(e) and 827.071(g), Florida Statutes (2018), respectively, and the following new comment is added: “There are statutory definitions of ‘sadomasochistic abuse’ and ‘sexual bestiality’ in § 847.001, Fla. Stat., that differ from the statutory definitions in § 827.071, Fla....

...box as discussed in the report. In instruction 11.10(b), the statutory citations for “sadomasochistic abuse” and “sexual bestiality,” sections 847.001(13) and 847.001(15), respectively, are removed, leaving the citations to sections 827.071(e) and 827.071(g), respectively. In addition, the comment added to instructions 11.10(e), 11.10(g), and 11.11 as set forth above, addressing section 847.001 statutory definitions, is also included in instruction 11.10(b)....

...another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013). “An object” includes a finger. “Union” means contact. § 827.071(de) and § 847.001(13), Fla....

...Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. § 827.071(fg) and § 847.001(15), Fla....

...466 (2000) requires the jury to make at least one additional finding regarding the defendant’s age. There are statutory definitions of “sadomasochistic abuse” and “sexual bestiality” in § 847.001, Fla. Stat., that differ from the statutory definitions in § 827.071, Fla....

...netration of another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013). “An object” includes a finger. § 847.001(13)827.071(e), Fla....

...ettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm on another or receiving such harm oneself. § 847.001(15)827.071(g), Fla....

...ute, the parties may agree to not give the necessary lesser-included offense. There are statutory definitions of “sadomasochistic abuse” and “sexual bestiality” in § 847.001, Fla. Stat., that differ from the statutory definitions in § 827.071, Fla....

...“unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. - 34 -  There are statutory definitions of “sadomasochistic abuse” and “sexual bestiality” in § 827.071, Fla....

...Stat., defines a “disabled adult” (18 years of age or older). The discrepancy between the two terms has yet to be clarified. There are statutory definitions of “sadomasochistic abuse” and “sexual bestiality” in § 847.001, Fla. Stat., that differ from the statutory definitions in § 827.071, Fla....

.... [Domenech]: I just need another chance with you, baby. I promise—I promise I will never let you down again. (Ellipses in original.) After the controlled call, the detective requested a search warrant for Mr. Domenech's laptop and the attached USB drive for evidence that he violated section 827.071(5), Florida Statutes (2021)....

..."meet the criteria for identification as Child Pornography per Florida Statute." Thereafter, the State filed an information charging Mr. Domenech with 20 counts of Possession, Control, or Intentional Viewing of Child Pornography in violation of sections 827.071(5) and 775.0847, Florida Statutes (2021). Mr....

....01(2) (" 'Child' means any person under the age of 18 years."); and that Mr. Domenech's description of what the young girls were "doing" included "sex" in at least some of the videos supported the detective's use of the phrase "sexual conduct," see § 827.071(1)(h) (" 'Sexual conduct' means actual or simulated sexual intercourse ....

...DOMENECH was forthcoming in the controlled call about his possession of the images he knew were of underage girls engaging in sexual conduct, and that the images and videos were on the laptop. That description establishes a "fair probability" of finding evidence on Mr. Domenech's laptop that he violated section 827.071(5). See Gates, 462 U.S. at 238; see also § 827.071(5)(a) ("It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, h...

VILLANTI, Judge. Shedrick Jenrette-Smith appeals his convictions on fourteen counts of promoting a sexual performance by a child in violation of section 827.071(3), Florida Statutes (2008)....

...— one count for each photograph. Jenrette-Smith was convicted following a jury trial, and he was sentenced to thirty years in prison as a prison releasee reof-fender. Jenrette-Smith now appeals his convictions and sentences. II. CONVICTIONS UNDER SECTION 827.071(3), FLORIDA STATUTES Jenrette-Smith first contends that he was improperly convicted under section 827.071(3), arguing that the State failed to prove the “performance” element of the offense. Section 827.071(3) provides: A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis added.) Section 827.071(l)(b) defines the term “performance” for purposes of section 827.071 as “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” The statute does not define the phrase “exhibited before an audience.” 1 At trial, Jenrette-Smith timely moved for a judgment of acquittal, arguing that the State had failed to prove that the photographs at issue were ever “exhibited before an audience.” In doing so, Jen-rette-Smith relied solely on the language of section 827.071(l)(b)....

...RECLASSIFICATION UNDER SECTION 775.0847(2), FLORIDA STATUTES Jenrette-Smith also argues that the trial court erred when it denied his motion for judgment of acquittal as to the reclassification of his offenses pursuant to section 775.0847(2). That statute provides: (2) A violation of s. 827.071 ......

...Thus, the trial court properly denied the motion for judgment of acquittal as to the reclassification of Jenrette-Smith’s offenses, and hence we affirm his sentences. Affirmed. SILBERMAN, C.J., Concurs specially with opinion. NORTHCUTT, J., Dissents with opinion. . The provisions of section 827.071 have been renumbered by chapter 2011-220, section 15, Laws of Florida, effective October 11, 2011.

...Because this is an issue of statutory interpretation, this Court’s review is de novo. Plott v. State, 148 So.3d 90, 93 (Fla.2014). The DSFO Act provides: Any person who is convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3), or (4); or section 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: ... Has been previously convicted of a violation of section 787.025; section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825,1025(2) or (3); section 827.071(2), (3), or (4); section 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a f...

...ears of age, section 800.04(4) and (5), Florida Statutes (2005); • Lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, section 825.1025, Florida Statutes (2005); • Sexual performance by a child, section 827.071, Florida Statutes (2005); and • Selling or buying of minors, section 847.0145, Florida Statutes (2005)....

and simple possession of child pornography, section 827.071(4) and (5), Florida Statutes (1999), respectively

component of a “sexual performance” under section 827.071, Florida Statutes (1989), was not proven, we

...ng the instruction. -4-  APPENDIX 16.10 POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE § 827.071(4), Fla....

...present ability to direct its control by another. Joint possession. Give if applicable. Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation]. § 827.071(1)(d), Fla. Stat. “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same. § 827.071(1)(h), Fla....

...es sexual battery or simulates that sexual battery is being or will be committed. Give if applicable. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” Give as applicable. § 827.071(1)(a), Fla. Stat. “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. § 827.071(1)(e), Fla....

...Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. § 827.071(1)(f), Fla....

...union with, the sexual organ of another or the anal or vaginal penetration of another -6- by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose. § 827.071(1)(g), Fla. Stat. “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. § 827.071(1)(j), Fla....

...exhibits any uncovered portion of the breasts, genitals, or buttocks. Lesser Included Offenses POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE — 827.071(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Knowing possession of 827.071(5)(a) 16.11 a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, was known by defendant to include any sexual conduct by a child Attempt 777...

...Opas contends that he entered the plea solely because the trial court threatened to sentence him to prison if he did not forego his motion to suppress and enter the plea. Opas was charged by information with eight counts of unlawful possession of material depicting sexual performance by a child in violation of section 827.071(5), Florida Statutes (2001)....

...Opas subsequently filed a motion to suppress the illegal material pursuant to Florida Rule of Criminal Procedure 3.190(h) and (i). During a hearing on his motion to suppress, Opas entered a plea of guilty to one count of unlawful possession of child pornography in violation of section 827.071(5), Florida Statutes (2001)....

...Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa Martin, Assistant Attorney General, Tampa, for Appellee. PER CURIAM. Harry Martin Walsh, Jr. appeals his convictions and sentences, totaling 63.5 years in prison, for possession of child pornography. See §§ 827.071(5)(a), 775.0847, Fla....

...Walsh of ten counts of possession of child pornography (ten or more images) on his home computer in case number 2D14-4735 and seven counts of possession of child pornography (ten or more images) on his business computer in case number 2D14- 4920. See §§ 827.071(5)(a), 775.0847. Although the plea involved 170 images of child pornography, law enforcement officers discovered over 3000 pornographic images on Mr. Walsh's home computer. Section 827.071(5)(a) makes it unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or...

.... . . A person who violates this subsection commits a felony of the third degree .... The State reclassified Mr. Walsh's offenses pursuant to section 775.0847(2) and (3): (2) A violation of s. 827.071 ....

...riminal episode totaling ten or more as a single offense. Thus, Mr. Walsh posits that he could not have been convicted for more than one count in each case, and that thus the trial court violated double jeopardy.1 We disagree. Under section 827.071(5)(a), "[t]he possession ....

...The State could have charged each of the 170 images as a separate count. As third-degree felonies, Mr. Walsh would have faced up to 850 years in prison. Section 775.0847 does not constrain the State's charging discretion. Rather, section 775.0847 allows the State to reclassify violations of section 827.071 to second-degree felonies if the offender possesses ten or more images and the content of at least one image contains at least one of the types of images listed in the statute....

...more than provide for minimum sentences applicable to those offenses; [they] also reclassif[y] the enumerated offense[]." Mills, 822 So. 2d at 1287. The statute in question here, section 775.0847(2), provides that "[a] violation of s. 827.071 ....

...based on certain factual requirements is a reclassification statute that operates independently from enhancement statutes. 177 So. 3d at 637.4 Section 775.0847 authorizes the trial court to reclassify a violation of the child pornography statute, section 827.071, when it finds that the requirements of subsections (a) and (b) have been met....

...zation for the trial court to both enhance Hale's sentence as a habitual offender and further increase it by ordering that the sentences run consecutively. Id.7 The trial court properly declined to extend Hale to Mr. Walsh's cases. Section 827.071(5)(a) reclassifies the offense; it does not enhance the sentence, the concern addressed in Hale....

...The Peculiarity of Computer Child Pornography Offenses Consecutive sentencing for multiple offenses in a single criminal episode has grave implications for computer child pornography offenses. The State can charge each image as a separate offense under section 827.071(5)(a)....

years of age to engage in a sexual performance. § 827.071(2), Florida Statutes. The trial court dismissed

counts comprising various offenses covered by section 827.071(1)-(4), Florida Statutes (sexual performance

...Second, as to the oral finding that Defendant is a sexual predator, we remand this case to the trial court to make the necessary written findings in accordance with section 775.21(5)(a)1., Florida Statutes (2007). AFFIRMED; REMANDED. GRIFFIN, SAWAYA and PALMER, JJ., concur. NOTES [1] § 827.071(5), Fla. Stat. (2007). [2] § 800.04(5)(b), Fla. Stat. (2007). [3] § 827.071(3), Fla....

...ng the instruction. -4-  APPENDIX 16.10 POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE § 827.071(4), Fla....

...present ability to direct its control by another. Joint possession. Give if applicable. Possession may be sole or joint, that is, two or more persons may possess a[n] [photograph] [motion picture] [exhibition] [show] [representation] [presentation]. § 827.071(1)(d), Fla. Stat. “Promote” means to procure, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmute, publish, distribute, circulate, disseminate, present, exhibit, or advertise or to offer or agree to do the same. § 827.071(1)(h), Fla....

...es sexual battery or simulates that sexual battery is being or will be committed. Give if applicable. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” Give as applicable. § 827.071(1)(a), Fla. Stat. “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. § 827.071(1)(e), Fla....

...Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. § 827.071(1)(f), Fla....

...union with, the sexual organ of another or the anal or vaginal penetration of another -6- by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose. § 827.071(1)(g), Fla. Stat. “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. § 827.071(1)(j), Fla....

...exhibits any uncovered portion of the breasts, genitals, or buttocks. Lesser Included Offenses POSSESSION OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD WITH INTENT TO PROMOTE — 827.071(4) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. Knowing possession of 827.071(5)(a) 16.11 a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, was known by defendant to include any sexual conduct by a child Attempt 777...

...offender probation. As a mandatory condition of probation, Walk was prohibited from having unsupervised contact with a child under the age of eighteen. See § 948.30(1)(e), Fla. Stat. (2015) (for probationers who are placed under supervision for violation of section 827.071, one of the conditions that the court must impose is “a prohibition on contact with a child under the age of [eighteen]” if the victim was under the age of eighteen). In February 2018, more than one year after the imposition...

...Accordingly, we reverse Jory’s sentences and remand this cause for resen-tencing in accordance with Flowers and Karchesky . Convictions AFFIRMED; sentences REVERSED; and REMANDED for resen-tencing. GOSHORN, C.J., and COBB and GRIFFIN, JJ., concur. . § 800.04(2), Fla.Stat. (1989). . § 827.071(3), Fla.Stat. (1989). .§ 827.071(2), Fla.Stat....

...(2023). In addition, citing data from the Florida Department of Corrections, it alleges Worrell authorized limited charges for possession of child pornography—even when additional counts could have been charged and proven at trial pursuant to section 827.071(5)(a), Florida Statutes (2023)....

...mandatory minimum sentences and certain sentencing enhancements, contravening sections 27.366, 775.082(9), 775.084(1)(b), 775.084(4)(b), 775.087(2)-(3), and 893.135, Florida Statutes; limited the number of charges against defendants in child pornography cases, contravening section 827.071(5)(a), Florida 2....

...f his friends asked if he wanted to be on the videotape and that he was simply "playing around." If the jury believed this testimony, then it would not have been able to find Jory guilty of having induced the victim's participation as is required by section 827.071(2) or having produced or promoted the child's sexual performance as is required by section 827.071(3)....

...Because the five reasons given for the departure sentences in this case are either improper or not established by a preponderance of the evidence in the record, I would vacate the sentences imposed and remand for resentencing within the guidelines. NOTES [1] § 800.04(2), Fla. Stat. (1987). [2] § 827.071(3), Fla. Stat. (1987). [3] § 827.071(2), Fla....

...between the sentence received in comparison to sentences received by other Florida defendants for like crimes, and a similar comparison for defendants in other states. See Kendry; Bartlett. This court cannot take judicial notice of such matters. [5] Section 827.071(3) provides: A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. [6] Section 827.071(2) provides: A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he employs, authorizes, or induces a child less than 18 years of age to engage in a sexual performance or, be...

conviction and sentence for a violation of section 827.071(5), Florida Statutes (1993), based upon the

PETERSON, J. Charles Raleigh Veal, Jr. appeals the denial of his C-4 1 motion to dismiss an information charging him with four counts of Possession of Representations of Sexual Conduct By A Child, section 827.071(5), Florida Statutes (2000)....

...First, the defendant must have been convicted of violating one of the statutory provisions set out in section 794.0115(2) — i.e., section 787.025(2)(c); section 794.011(2), (3), (4), (5), or (8); section 800.04(4) or (5); section 825.1025(2) or (3); section 827.071(2), (3),’ or (4); or section 847.0145; or of any similar offense under a former designation....

...another jurisdiction, or for an offense that would be a felony if that offense were committed in Florida; or (e) previously been convicted of violating sections 787.025(2)(c), 794.011(2), (3), (4), (5), or (8), 800.04(4) or (5), 825.1025(2) or (3), 827.071(2), (3), or (4), or 847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph; or of any offense that is a felony in another jurisdiction, or would be a felony if that...

...Accordingly, we remand for resolution of the discrepancy. See Biles v. State, 693 So.2d 701 (Fla. 5th DCA 1997). AFFIRMED in part; REVERSED in part; and REMANDED for clarification. W. SHARP and GOSHORN, JJ., concur. . § 794.01 l(a)(b), Fla. Stat. (1993). . § 827.071(5), Fla....

...or community control in a material respect and is under supervision for any criminal offense proscribed in chapter 794, Florida Statutes, section 800.04(4), Florida Statutes, section 800.04(5), Florida Statutes, section 800.04(6), Florida Statutes, section 827.071, Florida Statutes, or section 847.0145, Florida Statutes, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which, but for the effective date, he or she would meet t...

PER CURIAM. We affirm Appellant's judgment and sentence in all respects except as to the conviction on count thirty, one of fifty-one convictions for intentional viewing of materials depicting a sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed in the light most favorable to the State, see Robinson v. State , 267 So.3d 567 , 568 (Fla. 1st DCA 2019), the material did not meet the statutory definition of sexual performance. See § 827.071(1)(h)-(i), Fla....

sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed

...adult against a child under the age of 12, in violation of the version of Fla. Stat. § 794.011(2)(a) (2002) in place at the time, and the other for cruelty toward children by directing or promoting sexual performance by a child, in violation of Fla. Stat. § 827.071(3)....

...Godwin appeals the denial of his motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. The State properly concedes error. Godwin was charged with twenty-three counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2011)....

...In return, the State would nolle prosequi the remaining thirteen counts. The trial court accepted Godwin’s plea and sentenced him to ten concurrent sentences of ten years imprisonment on each count. On appeal, Godwin correctly argues that his sentence is illegal because a violation of section 827.071(5) is....

...5  USCA11 Case: 20-10924 Date Filed: 01/06/2021 Page: 6 of 17 U.S.C. §§ 2252A(b)(1) and (b)(2) because of his prior conviction for promoting the sexual performance of a child under Fla. Stat. § 827.071(3)....

...distribution of images depicting the touching of clothed buttocks or clothed female breasts, not just unclothed buttocks or unclothed female breasts. See Appellant’s Br. at 13. We disagree that the District Court plainly erred. The plain meanings of Fla. Stat. § 827.071(3) and 18 U.S.C. §§ 2252A(b)(1), (b)(2) strongly suggest that § 827.071(3) is a predicate offense under the federal sentencing enhancement statutes, and Kushmaul has pointed us to no binding precedent holding otherwise. As a result, we affirm Kushmaul’s sentence....

...sexual conduct involving a minor or ward.” 4 So, to succeed on his claim, Kushmaul must demonstrate that the District Court plainly erred in concluding that his prior conviction for promoting the sexual performance of a child under Fla. Stat. § 827.071(3) “relat[es] to” “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U.S.C....

...United States, 563 U.S. 816, 821, 131 S. Ct. 2218, 2222 (2011). For our purposes, the categorical approach means that, to prevail in this case, Kushmaul must show that it is plainly established that the “least culpable conduct” criminalized by Fla. Stat. § 827.071(3) is not a state crime that qualifies as a predicate offense under 18 U.S.C....

...9  USCA11 Case: 20-10924 Date Filed: 01/06/2021 Page: 10 of 17 B. Let’s start by looking at the statutes. The state statute under which Kushmaul was convicted, Fla. Stat. § 827.071(3), states, in relevant part: “A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by...

...The statute defines “sexual conduct” as, among other things, “actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party.” Id. § 827.071(1)(h). Performance is defined as, among other things, a “photograph.” Id. § 827.071(1)(c). And promote means, among other things, to “distribute.” Id. § 827.071(1)(d). So, by our read of Fla. Stat. § 827.071(3), the least culpable conduct the statute criminalizes is the distribution of a photograph of a child less than 18 years of age that is making actual physical contact with a person’s clothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party. Under Kushmaul’s interpretation of the statute, Fla. Stat. § 827.071(3) is “clearly” and “obviously” broader than the generic offenses listed in §§ 2252A(b)(1) and (b)(2), and thus his prior conviction cannot serve as a 10  USCA11 Case: 20-10...

...sis added). The differences in these two definitions tell the whole story: “Abusive sexual contact” requires physical touching, but “abusive sexual conduct” does not. So, when we compare the least culpable conduct under Fla. Stat. § 827.071(3) with our interpretation of the language of the generic “abusive sexual conduct of a minor or ward” offense, Kushmaul’s argument that the Florida statute is broader than the sentencing enhancement statutes crumbles....

...require no physical touching of a minor at all, such as enticing a minor for indecent purposes, qualify as “abusive sexual conduct.” See McGarity, 669 F.3d at 1261– 62. We struggle to see how the least culpable conduct punishable under Fla. Stat. § 827.071(3)—which requires the actual touching of a minor—is somehow “broader” than the acts proscribed by 18 U.S.C....

...of clothed and unclothed minors simply misses the mark. Nor does the phrase “relating to” salvage Kushmaul’s argument. That phrase, as interpreted by this Circuit, is clearly broad enough to encompass a conviction for the least culpable act under Fla. Stat. § 827.071(3)....

...clothed breast of a female child do not “stand in some relation” to the “abusive sexual conduct of a minor.” Miller, 819 F.3d at 1317 (emphasis added). To hold otherwise would be to read “relating to” too narrowly. And even if Fla. Stat. § 827.071(3) is arguably broader than the sentencing enhancement statutes, a close call is not enough for Kushmaul to prevail on plain 15  USCA11 Case: 20-10924 Date Filed: 01/06/2021 Page: 16 of 17 error review....

...(emphasis added). C. Since the plain language of the statutes do not resolve the issue, we turn next to precedent. From our review of the case law, we find no published precedent determining whether a conviction for an offense under Fla. Stat. § 827.071(3) relates to the generic offenses listed in 18 U.S.C. §§ 2252A(b)(1) and (b)(2). And Kushmaul concedes that there is none. See Appellant’s Br. at 24 (“Appellant is unaware of any decision of this Court holding that a conviction under Fla. Stat. § 827.071(3) does not qualify for the enhanced penalties of § 2252A(b)(1) and (2).”)....

...the absence of a clear resolution through the language of the sentencing enhancement statutes, it is all Kushmaul has left. See Castro, 455 F.3d at 1253. So, in light of our conclusion that the plain language of the statutes do not clearly resolve whether Fla. Stat. § 827.071(3) qualifies as a predicate offense under 18 U.S.C....

WOLF, J. A.H. challenges her adjudication of delinquency for producing, directing or promoting a photograph or representation that she knew included sexual conduct of a child in violation of section 827.071(3), Florida Statutes....

...emailed the photos to another computer from AH.’s home. A.H. and J.G.W. were each charged with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child, in violation of section 827.071(3), Florida Statutes. 1 A.H. filed a motion to dismiss on October 24, 2005, arguing that section 827.071(3), Florida Statutes, was unconstitutional as applied to her....

...Not prosecuting the child would do nothing to further the State’s interest. Prosecution enables the State to prevent future illegal, exploitative acts by supervising and providing any necessary counseling to the child. The Court finds that the State has shown that Section 827.071(3), Florida Statutes, as applied to the child, is the least intrusive means of furthering the State’s compelling interest in preventing the sexual exploitation of children, rendering the statute constitutional....

...ehavior until their minds and bodies had matured. A.H. argues that prosecuting her for the second-degree felony of promoting a sexual performance by a child was not the least intrusive means of furthering this interest. Therefore, she maintains that section 827.071(3), Florida Statutes, is unconstitutional as applied to her, and the trial court’s ruling to the contrary must be reversed....

...course and that this right of privacy extends to situations where the minor memorializes the act through pictures or video. We cannot accept this argument. In State v. A.R.S., 684 So.2d 1383 (Fla. 1st DCA 1996), we addressed the constitutionality of section 827.071(3), Florida Statutes, the same statute at issue in this case....

...had videotaped himself involved in sexual conduct with a female minor and played the videotape for a third party. Assuming that a minor’s privacy interests are implicated in the instant case, we recognize that the state’s compelling interest in section 827.071 is different....

...The state’s purpose in this statute is to protect minors from exploitation by anyone who induces them to appear in a sexual performance and shows that performance to other people. See Schmitt v. State, 590 So.2d 404, 412 (Fla.1991) (stating that the “obvious purpose” of section 827.071 “is to prohibit certain forms of child exploitation”), ce rt....

...Appellant asserts that the State only has a compelling interest when the photograph or video is shown to a third party. The Legislature has, however, recognized a compelling interest in seeing that the videotape or picture including “sexual conduct by a child of less than 18 years of age” is never produced. § 827.071(3), Fla....

...The State has a compelling interest in seeing that material which will have such negative consequences is never produced. The decision of the trial court is affirmed. THOMAS, J., concurs; PADOVANO, J., dissents with opinion. . J.G.W. was also charged with one count of possession of child pornography under section 827.071(5), Florida Statutes (2005).

...endant’s act was “unnatural” or “against the laws of nature” in order for § 800.02, Fla. Stat., to be given as a lesser-included offense. There are statutory definitions of “sadomasochistic abuse” and “sexual bestiality” in § 827.071, Fla....

...images showing children under the age of five being sexually battered. Cocking entered an open plea in case number 09-13152 to forty-five counts of possession of photographs depicting sexual conduct by a child with intent to promote, in violation of section 827.071(4), Florida Statutes (2008). Section 827.071(4) makes it "unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child."...

...one through forty-five, for a total of fifty-five years' imprisonment. Cocking did not appeal. In his rule 3.850 motion, Cocking argued that trial counsel was ineffective for failing to move to dismiss all but one of the forty-five counts alleging a violation of section 827.071(4), thereby inducing him to enter a plea to all forty-five counts when the statute only allows for one conviction under the facts of this case....

...extra forty-four counts. In support of his claim, Cocking cited Wade v. State, 751 So. 2d 669 (Fla. 2d DCA 2000), and State v. Parrella, 736 So. 2d 94 (Fla. 4th DCA 1999). In Parrella, the State appealed the trial court's dismissal of three of the four counts of section 827.071(4) violations with which Parrella was charged....

..., and held that because all of the images were found during one search, there was only one episode of promotion. Cocking has shown that trial counsel's failure to move to dismiss all but one of the forty-five counts of violation of section 827.071(4) and his advice to enter a plea to all forty-five counts constituted deficient performance that prejudiced him....

.... [Domenech]: I just need another chance with you, baby. I promise—I promise I will never let you down again. (Ellipses in original.) After the controlled call, the detective requested a search warrant for Mr. Domenech's laptop and the attached USB drive for evidence that he violated section 827.071(5), Florida Statutes (2021)....

..."meet the criteria for identification as Child Pornography per Florida Statute." Thereafter, the State filed an information charging Mr. Domenech with 20 counts of Possession, Control, or Intentional Viewing of Child Pornography in violation of sections 827.071(5) and 775.0847, Florida Statutes (2021). Mr....

....01(2) (" 'Child' means any person under the age of 18 years."); and that Mr. Domenech's description of what the young girls were "doing" included "sex" in at least some of the videos supported the detective's use of the phrase "sexual conduct," see § 827.071(1)(h) (" 'Sexual conduct' means actual or simulated sexual intercourse ....

...DOMENECH was forthcoming in the controlled call about his possession of the images he knew were of underage girls engaging in sexual conduct, and that the images and videos were on the laptop. That description establishes a "fair probability" of finding evidence on Mr. Domenech's laptop that he violated section 827.071(5). See Gates, 462 U.S. at 238; see also § 827.071(5)(a) ("It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, h...

...view that the lewdness requirement may be satisfied by the defendant’s intent”). Which acts or conduct is lewd or lascivious is a factual issue to be decided on a case-by-case basis. See Chesebrough, at 679. Appellant’s reliance on Lockwood v. State, 588 So.2d 57 (Fla. 4th DCA 1991) is unavailing. That case involved section 827.071(5), Florida Statutes (1989), which prohibited possession of a motion picture depicting sexual conduct by a child, the term “sexual conduct” being specifically defined in section 827.071(1)(g)....

...room, did not meet the statutory definition, as a matter of law, holding that the child’s “undressing, showering, toweling herself dry, and performing other acts of feminine hygiene” did not amount to “sexual conduct” within the meaning of section 827.071(l)(g)....

...dition. We find that the trial court correctly denied the motion, and affirm. On December 8, 2005, Kalinowski plead guilty to two counts of possession of a computer image and/or photograph which included the sexual conduct of a child in violation of section 827.071(4), Florida *963 Statutes (2005), and seven counts of possession of child pornography in violation of section 827.071(5), Florida Statutes (2005)....

...State, 864 So.2d 512, 514 (Fla. 5th DCA 2004) (same); Taylor v. State, 821 So.2d 404, 405 (Fla. 2d DCA 2002) (same). Additionally, because section 948.30(1), Florida Statutes (2005), requires the court to impose this condition for any violation of section 827.071, Florida Statutes (2005), the trial court correctly denied Kalinow-ski’s request to delete the condition from his sentence....

CANADY, Judge. The State charged Dalia Fernandez with a violation of section 827.071(5), Florida Statutes (2000), for possessing a photograph of her six-year-old grandson holding his unclothed, erect sexual organ....

...�� when viewed most favorably to the State — do not establish a prima facie case. State v. Pasko, 815 So.2d 680 (Fla. 2d DCA 2002). Because a jury could properly conclude that the photo depicts sexual conduct as defined by the statute, we reverse. Section 827.071(5) states in pertinent part that “[i]t is unlawful for any person to knowingly possess a photograph ... which, in whole or in part, he or she knows to include any sexual conduct by a child.” Section 827.071(l)(g) defines sexual conduct in pertinent part as “masturbation” and “actual lewd exhibition of the genitals.” In Pasko , this court reversed the dismissal of an information charging seventy-seven violations of section 827.071(5) based on posed photographs of nude girls....

pretenses); ch. 92-83, § 1, Laws of Fla. (amending § 827.-071(5), Fla.Stat., regarding possession of material

...that J and S are not entitled to proceed anonymously, we believe the district court was mistaken in considering Plaintiffs J and S’s allegations by assuming that because this sort of activity was not “sexual conduct” under Florida Statutes § 827.071, it was not a disclosure of “utmost intimacy.” [R....

sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2019), and one count

...Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee. FULMER, Judge. Julio Oquendo appeals from his convictions for promoting the sexual performance of a child and contributing to the delinquency of a minor, in violation of sections 827.071 and 827.04, Florida Statutes (2007)....

...After the State rested, the defense moved for a judgment of acquittal, arguing that the evidence did not show a sexual performance, where the sexual activity had occurred in a private bedroom with no one else viewing the activity. The trial court denied the motion. Section 827.071, Florida Statutes (2007), provides, in part: (2) A person is guilty of the use of a child in a sexual performance if, knowing the character and content thereof, he or she employs, authorizes, or induces a child less than 18 years of a...

...es any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Subsection (1)(b) of section 827.071, defines "performance" as "any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience." Subsection (1)(h) defines "sexual performance" as "any performance or *748 part thereof which includes sexual conduct by a child of less than 18 years of age." We agree with Oquendo that the State failed to prove a prima facie case of guilt under section 827.071 because there was no "performance," as that term is defined in subsection (1)(b) of the statute, shown by the evidence....

...NOTES [1] Oquendo was also charged with procuring a person under the age of eighteen for prostitution, but he was found not guilty of that charge. [2] The amended information charged Oquendo with "Promoting Sexual Performance of a Child" and referred only to "Florida Statute 827.071" without designating the subsection of the statute. The language in the body of the information alleges that Oquendo did "employ, authorize, or induce a child less than 18 years of age, to engage in a sexual performance." Subsection (3) of section 827.071 defines the crime of "promoting a sexual performance by a child." Subsection (2) defines the crime of "the use of a child in a sexual performance." Both crimes are second-degree felonies....

engage in a sexual performance, contrary to section 827.071(2); Count II — knowingly producing, directing

...or its possible unlawful use. This instruction was adopted in 2013 [131 So. 3d 720] and amended in 2018. 16.11 [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD § 827.071(5)(a), Fla....

...(Defendant) knew that the [photograph] [motion picture] [exhibition] [show] [representation] [image] [data] [computer depiction] [presentation] included sexual conduct by a child less than 18 years of age. Definitions. Give if applicable. § 827.071(1)(h), Fla....

...party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. Give if applicable. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” Give as applicable.§ 827.071(1)(a), Fla. Stat. “Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. § 827.071(1)(e), Fla....

...Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. § 827.071(1)(f), Fla....

...Stat. “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide medical purpose. “Bona fide” means genuine. § 827.071(1)(g), Fla. Stat. - 13 -  “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other. § 827.071(1)(j), Fla. Stat. “Simulated” means the explicit depiction of “sexual conduct,” as defined above, which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks. § 827.071(1)(b), Fla....

...ction] [presentation]. Lesser Included Offenses - 14 -  [POSSESSION] [CONTROL] [INTENTIONAL VIEWING] OF MATERIAL INCLUDING SEXUAL CONDUCT BY A CHILD— § 827.071(5)(a) CATEGORY ONE CATEGORY TWO FLA....

...A piece of fabric around her neck says “SLUT;” and • A computer-generated image depicting a nude prepubescent female being raped by an adult male. The State charged Morrow with one count of possession with intent to promote child pornography. See § 827.071(4), Fla....

...2007). The trial court did not abuse its discretion here. Morrow faced fifteen years in prison for the charged offense of possession with 3 the intent to promote child pornography. When he pleaded guilty to violating section 827.071(4), and when the trial court sentenced him to sex offender probation, Morrow was subject to certain mandatory conditions of sex offender probation listed in section 948.30(1)(h)....

...Based on this conduct, he was convicted of committing the crime of promoting a sexual performance by a child. The defendant raises four points on appeal. First, he argues that the trial erred in denying his motion for entry of a judgment of acquittal. We disagree. The defendant was charged with violating section 827.071 of the Florida Statutes which reads, in relevant part, 827.071....

...* * * (3) A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. § 827.071, Fla....

...f the defendant. Rather, the defendant contends the evidence showed him making contact with the child's breast. The trial court properly concluded that the evidence presented by the State at trial was sufficient to establish a prima facie case under section 827.071(3) of the Florida Statutes....

...under an abuse of discretion standard of review." Worley v. State, 848 So.2d 491 (Fla. 5th DCA 2003). In Nicholson v. State, 748 So.2d 1092 (Fla. 4th DCA 2000), the defendant was convicted of promoting a sexual performance by a child in violation of section 827.071(3)....

...e designated as a "sexual predator" under subsection (5), and subject to registration under subsection (6) and community and public notification under subsection (7) if: 1. The felony is: * * * b. Any felony violation, or any attempt thereof, of ... s. 827.071 ..., and the offender has previously been convicted of or found to have committed, or has pled nolo contendere or guilty to, regardless of adjudication, any violation of s....

sexual performance by a child, contrary to section 827.071(5), Florida Statutes (2014), third-degree felonies

sexual performance by a child, contrary to section 827.071(5), Florida Statutes (2014), third-degree felonies

...another by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. Lakey v. State, 113 So. 3d 90 (Fla. 5th DCA 2013). “An object” includes a finger. “Union” means contact. § 827.071(d) and §_847.001(13), Fla....

...Stat. “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. § 827.071(f) and §_847.001(15), Fla....

DCA 1998). The Fourth District dealt with section 827.071(5), Florida Statutes (1987), which made it

...Dunlevy, Assistant Attorney General, Tampa, for Appellee. SALARIO, Judge. John Wingo challenges the fifteen-year concurrent sentences he received following his plea of guilty to forty counts of possession of child pornography, all of which are second-degree felonies pursuant to sections 827.071(5)(a) and 775.0847(2) and (3), Florida Statutes (2012), when the possession of ten or more images is involved....

...seventy similar counts that were "nolle prossed" by the State as part of the plea agreement. Beginning with count one, the chart in the written judgment incorrectly indicates that every other count of the information was charged as a third-degree felony under section 827.071(5)(a), without the additional reclassification of the offense to a second-degree felony pursuant to section 775.0847(2) and (3)....

...was charged with and entered pleas exclusively to second-degree felonies. Accordingly, we remand for the correction of the written judgment to accurately reflect that each listed charge and conviction is for a second-degree felony under sections 827.071(5)(a) and 775.0847(2) and (3)....

...consent is not a defense to a prosecution for sexual activity with a minor under the age of 16. AFFIRMED. W. SHARP and GRIFFIN, JJ., concur. . § 794.041(2)(b), Fla.Stat. (1991). . § 800.04(3), Fla.Stat. (1991). . § 800.04(1), Fla.Stat. (1991). . § 827.071(2), Fla.Stat....

...On appeal from the Circuit Court for Okaloosa County. John T. Brown, Judge. April 20, 2018 WETHERELL, J. Appellant entered a negotiated plea to and was adjudicated guilty of 19 counts of possession of child pornography in violation of section 827.071, Florida Statutes (2016)....

...burdens imposed on him by the agreement. Id. Second, in order to be designated a sexual predator pursuant to section 775.21(4)(a)1.b., the defendant must be “convicted” of a current offense that is a felony violation of an enumerated statute (such as section 827.071), and the defendant must also have previously “been convicted of or found to have committed” a violation of one of those enumerated statutes....

...urt based Berben's lengthy sentence on improper considerations and findings. Berben was charged with and ultimately found guilty of twenty counts of knowingly possessing, controlling, or intentionally viewing images depicting child pornography under section 827.071(5)(a), Florida Statutes (2015). Significantly, he was not charged under the preceding subsection with promoting (which includes procuring, distributing, and disseminating) or possessing with the intent to promote, any of the images found on his computer. § 827.071(4), Fla....

...Thus, for the two reasons given above, I respectfully dissent from the majority opinion and would affirm the judgment and sentence. According to statistics provided by the Florida Department of Corrections, the average sentence length for the roughly 600 inmates serving time for violating section 827.071(5)(a), Florida Statutes, is 12.3 years....

...egree felony counts. See Chesser v. State, 148 So. 3d 497, 499 (Fla. 2d DCA 2014) ("The dates that the images were created was not determinative; if law enforcement discovered all the images in one search, they supported only one conviction under section 827.071(4)."). Also, if Guevara-Vilca is again convicted and sentenced on remand, defense counsel will not be limited to the arguments previously raised and he may, if justified, advance grounds for a downward departure....