CopyCited 122 times | Published | Supreme Court of Florida | 2008 WL 2678449
...§ 2256], what remains is the definition of the broader category of pornography[.]"). A similar cabining of section
948.03(5)(a)(7), Florida Statutes (1999), and sections
948.30(1)(g), and
947.1405(7)(a)(7), Florida Statutes (2007), is possible through selective reference to the definitions contained in section
847.001, Florida Statutes. Such a cabining could be utilized to construe the terms "pornographic material" and "sexually stimulating visual or auditory material" to remove questions with regard to the constitutional requirements of due process. See §
847.001, Fla....
CopyCited 75 times | Published | Supreme Court of Florida | 17 Fla. L. Weekly Supp. 400, 1992 Fla. LEXIS 1220, 1992 WL 148230
...Give when As used in regard to this offense the words "lewd" and F.S. "lascivious" mean the same thing and mean a wicked, lustful,
800.04(4) is unchaste, licentious, or sensual intent on the part of the charged person doing an act. Note to Give applicable definitions from F.S.
847.001 when F.S....
CopyCited 73 times | Published | Supreme Court of Florida
said minor female * * *." By Subsection (1) of § 847.01, Fla. Stat. 1957, F.S.A., as amended by Ch. 57-779
CopyCited 67 times | Published | Supreme Court of Florida | 2007 WL 3101743
..."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....
CopyCited 57 times | Published | Supreme Court of Florida | 2008 WL 596805
...ious, or sensual intent on the part of the person doing an act. "In the presence of" means that (victim) saw, heard, or otherwise sensed that the act was taking place. See State v. Werner,
609 So.2d 585 (Fla. 1992) . Give applicable definitions from §
847.001, Fla....
CopyCited 34 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 232, 2009 Fla. LEXIS 313, 2009 WL 465938
...stodian" to the title. A similar modification was made to the title of instruction 11.17(d)Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian. Finally, we added the statutory definitions for "deviant sexual intercourse," section 847.001(5), Florida Statutes (2008), and "sexual bestiality," section 847.001(15), to instructions 11.17(a), 11.17(b), 11.17(c), and 11.17(d)....
CopyCited 27 times | Published | Supreme Court of Florida | 1990 WL 154236
...icts or describes, in a 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.) Subsection 847.001(7), Florida Statutes (Supp....
...taken as a whole, appeals to the prurient interest; (b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value. Subsection 847.001(11) defines sexual conduct: (11) "Sexual conduct" means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual phys...
...whole appeals to prurient interest" (emphasis added). In the 1986 version of the statute, "obscenity" is material that "[t]he average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest." § 847.001(7)(a), Fla....
CopyCited 18 times | Published | Supreme Court of Florida | 2006 WL 3313741
...(b) "Transmit" means to send to a specific individual known by the defendant to be a minor via electronic mail. (2) Notwithstanding ss.
847.012 and
847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s.
847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s....
...775.083, or s.
775.084. (3) Notwithstanding ss.
847.012 and
847.0133, any person in any jurisdiction *325 other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s.
847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. The provisions of this section do not apply to subscription-based transmissions such as list servers. The term "harmful to minors" is defined in section
847.001(6), Florida Statutes (2002), and incorporates the constitutional standard for obscenity established by the United States Supreme Court in Miller v....
...rs; (b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and (c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors. § 847.001(6), Fla....
...r test. The Miller definition specifically excludes works that have serious literary, artistic, political, or scientific value to minors. See Miller v. California,
413 U.S. 15, 24,
93 S.Ct. 2607,
37 L.Ed.2d 419 (1973). So does Florida's statute. See §
847.001(6)(c), Fla....
...terests of minors," (2) is "patently offensive" to the "prevailing standards in the adult community" as to "what is suitable material for minors," and (3) as a whole "is without serious literary, artistic, political, or scientific value for minors." § 847.001(6)....
CopyCited 15 times | Published | Florida 2nd District Court of Appeal
picture to a child, was also proscribed by Section 847.01, Florida Statutes (1957), which specifically
CopyCited 14 times | Published | Supreme Court of Florida
recited that it directly passed upon the validity of § 847.01 F.S. 1957, F.S.A., and determined it to be valid
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 14398, 2009 WL 3047390
...g sexual activity. See §
800.04(7)(a), Fla. Stat. (2008). In contrast, an individual transmits "material harmful to minors" by electronic device by sending any of the following material to a "minor" (i.e. "any person under the age of 18 years" (see §
847.001(8), Fla....
...ensive to prevailing standards in the adult community as a whole with respect to what is suitable material or conduct for minors; and *1163 (c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors. See §§
847.001(6),
847.0138 Fla....
CopyCited 12 times | Published | Florida 3rd District Court of Appeal
decree and injunctive relief pursuant *707 to § 847.01, Fla. Stat., as amended by Chapter 59-360, Acts
CopyCited 11 times | Published | Supreme Court of Florida
of Dade County for an alleged violation of F.S. § 847.01, F.S.A. Defendant filed a motion to quash the
CopyCited 9 times | Published | Supreme Court of Florida | 2008 WL 5245686
..."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 *1142 by any other object; however, sexual activity does not include an act done for a bona fide medical purpose. § 847.001(13), Fla....
...condition of being fettered, 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), 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. § 847.001(13), Fla....
...condition of being fettered, 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), Fla....
CopyCited 7 times | Published | Florida 3rd District Court of Appeal
applicable statute relating to obscene literature § 847.01, Fla. Stat., F.S.A., 1959. The complaint sought
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2004 WL 2579449
...(b) "Transmit" means to send to a specific individual known by the defendant to be a minor via electronic mail. (2) Notwithstanding ss.
847.012 and
847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s.
847.001, to a specific individual *402 known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s....
...775,083, or s.
775.084. (3) Notwithstanding ss.
847.012 and
847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s.
847.001, to a specific individual know by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. (Emphasis added). Relevant definitions, provided in section
847.001, are: (1) "Adult" means a person 18 years of age or older....
...If a minor is an unknown member of a chat room, an over-zealous guardian of perceived "incorrect expression" need only notify all the members of a chat room of the name and minority of a minor member of such chat room to make any future messages subject to the sweep of § 847.001(6)(c)....
...l. Simply put, Hayne provides no support for the majority's opinion, but supports a contrary result. The majority dismisses the foregoing distinctions of California law as a "red herring" because of the definition of "harmful to minors" contained in § 847.001(6)(c) (defining harmful materials to include "taken as whole, is without serious literary, artistic, political or scientific value of minors.") With all due deference to my colleagues, this provision provides no basis for disregarding such distinctions and reveals the weak logical underpinning of the majority opinion. The majority apparently ignores, or overlooks, that the California statute considered in Hayne contains almost the identical language as § 847.001(6)....
...l-intended dictates of public officials, and citizens that push them to enforce conformity to popular community mores. Free expression is the bedrock of our society, and it should not be restricted except in clearly defined areas not accomplished by § 847.001(6)(c)....
...[6] The United States Supreme Court's ruling did not address this issue. [7] The dissent's concern over minors' access to Michelangelo's David and the like, and attempted distinction of Hayne, is a red herring because of the definition of "harmful to minors." See § 847.001(6)(c) (defining harmful materials to include "taken as whole, is without serious literary, artistic, political, or scientific value for minors")....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 1989 WL 29025
...to the prurient interest; (b) Depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific value. See Ch. 86-238, Laws of Fla.; § 847.001, Fla....
...tion
847.07(2), Florida Statutes (1985). That definition, however, is not applicable to offenses charged under section
847.011 and, therefore, is not relevant to the facts or legal issues involved in this case. See §
847.011(11), Fla. Stat. (1985); §
847.001(7), Fla....
...als, including those that are constitutionally protected." Contrary to the trial court's conclusion, and as previously mentioned herein, the definitions of obscene material contained in the 1985 version of section
847.011(11) and the 1986 version of section
847.001(7) have both withstood challenges on vagueness grounds....
...REASONABLE MAN STANDARD Finally, we agree with the state's contention that the trial court improperly defined the reasonable man standard applicable to offenses involving obscene materials. The trial court's order indicated that in the event the case went to trial, the state would be required to present evidence in regard to section 847.001(7)(c) "that the material, taken as a whole, lack[s] serious literary, artistic, political or scientific value and that no reasonable person could find such value." The appropriate inquiry under this section is whether a reasonable per...
CopyCited 6 times | Published | District Court, S.D. Florida | 17 Media L. Rep. (BNA) 2073, 1990 U.S. Dist. LEXIS 6883, 1990 WL 74653
...press. The Florida Legislature has acted, however. It has enacted a statutory scheme outlawing obscenity. It is apparent that this legislation is intended to regulate obscenity to the maximum extent allowed by the Constitution of the United States. Section 847.001(7), Florida Statutes, tracks the language of the controlling case of Miller v....
...organ, masturbation, cunnilingus, sexual intercourse, and the sounds of moaning. Florida's Legislature has provided a valuable source of evidence in the form of its obscenity statutes for determining what is sexual conduct. The initial provision is section 847.001(11), Florida Statutes, which defines "sexual conduct" to include "actual or simulated sexual intercourse, deviate sexual intercourse, ... masturbation, ... sadomasochistic abuse; [or] actual lewd exhibition of the genitals"." Section 847.001(2), Florida Statutes, defines deviate sexual intercourse as sexual conduct between unmarried persons involving contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. Section 847.001(8) defines sadomasochistic abuse as satisfaction from sadistic violence derived by inflicting harm upon another....
...as in Cohen v. California,
403 U.S. 15, 22,
91 S.Ct. 1780, 1786,
29 L.Ed.2d 284 (1971). As already noted, Florida's Legislature has defined obscene acts to include sadomasochistic sexual conduct, oral sex, and anal intercourse. See FLA.STAT. ANN. §§
847.001(2), .001(8) (Supp.1990). In addition, Florida's obscenity statutes are intended to have the broadest, constitutional scope. See FLA.STAT.ANN. §
847.001(7) (Supp.1990)....
CopyCited 6 times | Published | Florida 5th District Court of Appeal | 2000 WL 553926
...red the subject of lewd behavior when used for purposes other than breastfeeding. See §
800.02, Fla. Stat. (1993)(criminalizing unnatural and lascivious acts); §
800.04 ("Lewd, lascivious, or indecent assault or act upon or in presence of child"); §
847.001 ("A mother's breastfeeding of her baby is not under any circumstances `obscene'" for purposes of statute criminalizing the dissemination of obscene literature)....
CopyCited 6 times | Published | Supreme Court of Florida | 32 Fla. L. Weekly Supp. 530, 2007 Fla. LEXIS 1535, 2007 WL 2438370
...any act involving sexual activity]]. 3. (Defendant) knew or reasonably should have known that the (victim) lacked the capacity to consent or failed to give consent. Definitions. Give as applicable. If 2a or 2c is alleged, define the act charged from § 847.001, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 1993 WL 393625
...Specifically, one aspect of the definition of "obscene," reads in part: "Sexual conduct" means ... actual physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast... . (emphasis added.) § 847.001, Fla....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2012 WL 280238, 2012 Fla. App. LEXIS 1324
...(quoting Moonlit Waters Apartments, Inc. v. Cauley,
666 So.2d 898, 900 (Fla.1996)). The statute at issue provides: [A]ny person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s.
847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree....
...ommunications sent to a specific individual." Simmons,
944 So.2d at 329. "Thus, the statute does not apply to websites or other materials posted on the Internet for general public viewing." Id. [2] The definition of "harmful to minors," contained in section
847.001(6), derives from the constitutional obscenity standard from Miller v....
CopyCited 5 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 877, 2013 WL 6305393, 2013 Fla. LEXIS 2640
...“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. § 847.001(18), Fla....
CopyCited 4 times | Published | Florida 1st District Court of Appeal | 1988 WL 92978
...Rone,
598 F.2d 564 (9th Cir.1979): [T]here is nothing in the RICO statutory scheme which would suggest that Congress intended to preclude separate convictions or consecutive sentences for a RICO offense and the underlying or predicate crimes which make up the racketeering pattern. Section
847.001(7) constitutes the codification in Florida of the definition of the term "obscene." [1] In Points IV and V, appellant asserts that the statute is unconstitutional because it is vague and it fails to set forth the proper standards for...
...1918,
95 L.Ed.2d 439 (1987), the court addressed the question of whether part (c) should be subject to the "contemporary *366 community standards" test and concluded that it should not, finding that instead the reasonable man test should be applied to part (c). Relying on the argument that section
847.001(7) fails to conform to the requirements of Miller and Pope, appellant asserts the statute's unconstitutionality....
...be used. Therefore, appellant's convictions are affirmed but his sentence is reversed and this case is remanded for resentencing by a different judge. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. SMITH, C.J., and WENTWORTH, J., concur. NOTES [1] 847.001(7), Florida Statutes provides: (7) "Obscene" means the status of material which: (a) The average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (b) Depicts or describes, in a...
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 14072, 2015 WL 5603461
...f
prosecution and we thus turn to the “a/any” test (which is in part
responsible for the ambiguity). Sections
847.0137(2) and (3), Florida
Statutes (2009), under which Appellee was charged, criminalize
“transmitting child pornography.” Under section
847.001(3), “‘[c]hild
pornography’ means any image depicting a minor engaged in sexual
conduct” (emphasis added)....
CopyCited 3 times | Published | Florida 5th District Court of Appeal | 2003 WL 22056036
...ls Beber had shown him. That left as the sole proof of this count the child's "yes" response at trial to the question of whether Beber had shown him any "bad magazines or dirty magazines." For purposes of section
847.0133(1), "obscene" is defined in section
847.001(10) as: (10) `Obscene' means the status of material which: (a) The average person applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; (b) Depicts or describes, in a patently offen...
CopyCited 1 times | Published | Supreme Court of Florida
...Stat.
“Sexually explicit image” means any image depicting nudity or
depicting any person engaging in sexual conduct.
§
784.049(2)(a), Fla. Stat.
“Image” includes but is not limited to, any photograph, picture, motion
picture, film, video, or representation.
§
847.001(9), Fla....
...below the top of the nipple; or the depiction of covered male genitals in a
discernibly turgid state. [A mother breastfeeding her baby does not under any
circumstance constitute “nudity,” irrespective of whether or not the nipple is
covered during or incidental to feeding.]
§ 847.001(16), Fla. Stat.
If necessary, insert additional definitions from § 847.001, Fla....
CopyPublished | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 369, 2016 WL 4699498, 2016 Fla. LEXIS 1995
...nternet. Smith,
190 So. 3d at 95. The information alleged twenty counts as follows:
DUNCAN JASON SMITH on or about April 13, 2010, in the County
of Palm Beach and State of Florida, did transmit child pornography,
as defined in section
847.001, Florida Statute, knowing or having
reason to know it was child pornography, to another person in Florida
or in any other jurisdiction, or from any jurisdiction outside of Florida
to any person in the State of Florida, contrary Florida Statutes
847.0137(2) and (3)....
...Dep’t of Health,
898 So. 2d 61, 64
(Fla. 2005)).
Section
847.0137 makes it a crime to transmit child pornography:
[A]ny person in this state who knew or reasonably should have known
that he or she was transmitting child pornography, as defined in s.
847.001, to another person in this state or in another jurisdiction
commits a felony of the third degree, punishable as provided in s.
775.082, s....
CopyPublished | Florida 4th District Court of Appeal
...f
prosecution and we thus turn to the “a/any” test (which is in part
responsible for the ambiguity). Sections
847.0137(2) and (3), Florida
Statutes (2009), under which Appellee was charged, criminalize
“transmitting child pornography.” Under section
847.001(3), “‘[c]hild
pornography’ means any image depicting a minor engaged in sexual
conduct” (emphasis added)....
CopyPublished | Supreme Court of Florida | 2015 WL 5853925
...ation 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).
The definition of “an object” includes a finger.
§
847.001(13), Fla....
...person or animal, or the condition of being fettered, 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), Fla....
...11 -
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).
The definition of “an object” includes a finger.
§
847.001(13), Fla....
...person or animal, or the condition of being fettered, 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), Fla....
CopyPublished | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 559, 2010 Fla. LEXIS 1641, 35 Fla. L. Weekly Fed. S 559
(Fla. 1992). Give applicable definitions from §
847.001, Fla. Stat, when §
800.04(2),Fla. Stat, is charged
CopyPublished | Supreme Court of Florida
Florida State Prison at Raiford for violation of § 847.01, F.S.19SS, F.S.A. After his conviction and after
CopyPublished | Supreme Court of Florida | 2017 WL 4546149
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla....
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla....
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See §
847.001, Fla....
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See §
847.001, Fla....
CopyPublished | Supreme Court of Florida
has appealed from the judgment of conviction. Section 847.01, supra, provides that "Whoever imports, prints
CopyPublished | Supreme Court of Florida
...11.21, because section
775.0862, Florida Statutes (2018), is a reclassification
statute.
Lastly, in instructions 11.10(e), 11.10(g), and 11.11, the statutory definitions
for “sadomasochistic abuse” and “sexual bestiality” are changed from those in
sections
847.001(13) and
847.001(15), Florida Statutes (2018), respectively, to
1....
...-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....
...ct as a
Category Two lesser-included offense rather than moving it to the Category One
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).
-4-
The table of lesser-included offenses is updated in instruction 11.10(c) to
reflect in the heading the primary of...
...1992).
“In the presence of” means that (victim) saw, heard, or otherwise sensed
that the act was taking place.
Give if applicable.
“Union” means contact.
See State v. Werner,
609 So.2d 585 (Fla. 1992).
Give applicable definitions from §
847.001, Fla....
...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....
...If this enhancement is charged, it is likely that Apprendi v. New Jersey,
530
U.S. 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....
...or vaginal penetration 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....
...person or animal, or the condition of being fettered, 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....
...Stat., to be
given as a lesser-included offense.
If the age of the defendant is not in dispute, 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....
...ration 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).
The definition of “an object” includes a finger.
§
847.001(13), Fla....
...physically restrained, for the purpose of deriving sexual satisfaction, or
- 30 -
satisfaction brought about as a result of sadistic violence, from inflicting harm
on another or receiving such harm oneself.
§ 847.001(15), Fla....
...does not include an act
done for a bona fide medical purpose.
Give if applicable.
“Bona fide” means genuine.
Lakey v. State,
113 So. 3d 90 (Fla. 5th DCA 2013).
The definition of “an object” includes a finger.
§
847.001(13), Fla....
...- 33 -
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), 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., that differ from the statutory definitions in
§
847.001, Fla....
...memory loss,
or other cause, that causes an elderly person or disabled adult to lack
sufficient understanding or capacity to make or communicate reasonable
decisions concerning the elderly person’s or disabled adult’s person or
property.
§ 847.001(13), Fla....
...on another or receiving such harm oneself. “Sadism” means sexual
gratification achieved through, or the association of sexual activity with, the
infliction of physical pain, suffering, humiliation, torture, or death upon
another person or an animal.
§ 847.001(15), Fla....
...Stat., protects a “disabled person” (age unspecific) while
§
825.101, 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....
...(Defendant) sent the image, information or data to a specific
individual who was either actually known by [him] [her] to be a
minor or believed by [him] [her] to be a minor.
3. (Defendant) sent the image, information or data via electronic mail.
Definitions. Give as applicable.
§ 847.001(6), Fla....
...average person today can view the material candidly, openly, and with a
normal interest in sex.
“Morbid interest” means diseased, dwelling on the gruesome, or sick.
§
847.0137(1)(a)001(8), Fla. Stat.
“Minor” means any person less than 18 years of age.
§
847.001(9), Fla....
...tion of covered male genitals
in a discernibly turgid state. A mother’s breastfeeding of her baby does not
under any circumstance constitute “nudity,” irrespective of whether or not
the nipple is covered during or incidental to feeding.
§ 847.001(16), Fla....
...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.”
- 43 -
§ 847.001(19), Fla....
...Stat.
“Simulated” means the explicit depiction of conduct described in the
definition of “sexual conduct” which creates the appearance of such conduct
and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
§ 847.001(5), 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.
§ 847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§ 847.001(13), Fla....
...person or animal, or the condition of being fettered, 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(14), Fla....
...sexual battery” does not include an
act done for a bona fide medical purpose.
Give if applicable.
“Bona fide” means genuine.
Lakey v. State,
113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
§
847.001(17), Fla....
CopyPublished | Supreme Court of Florida | 1958 Fla. LEXIS 1741
reflecting adversely on the constitutionality of Section 847.01, Florida Statutes, F.S.A., as amended by Chapter
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
...sentation in front
of a live audience which, in whole or in part, depicts
or simulates nudity, sexual conduct, sexual excite-
ment, or specific sexual activities as those terms are
defined in s. 847.001, lewd conduct, or the lewd expo-
sure of prosthetic or imitation genitals or breasts
when it:
1....
...rt 23-12160
3. Taken as a whole, is without serious literary, artis-
tic, political, or scientific value for the age of the child
present.
Id. §
827.11(1)(a). The preexisting Section
847.001, part of a chapter
entitled “Obscenity,” in turn defines “nudity,” “sexual conduct,”
“sexual excitement,” and “specific sexual activities” in great detail.
Id. §
847.001(11), (19), (20), (23). A “child” is “any person . . .
younger than 18 years of age.” Id. §
847.001(10).
The Act also allows the Florida Department of Business and
Professional Regulation (“FDBPR”) to fine or revoke the licenses
of eating, drinking, and lodging establishments that admit a child
to an adult live performance....
...for minors” standard or a “variable
obscenity” standard. The Miller-for-minors test takes the Miller
prongs but adjusts the second and third standards (and sometimes
the first) “for minors.” See, e.g., Fla. Stat. § 847.001(7); Ala....
...The Act,
she argues, “specifically defines” the activities that constitute an
adult live performance: anything “depict[ing] or simulat[ing] nu-
dity, sexual conduct, sexual excitement, or specific sexual activities
as those terms are defined in [Section] 847.001, lewd conduct, or
the lewd exposure of prosthetic or imitation genitals or breasts.”
See Fla....
...Undoubtedly, the statute meticulously explains the first
four terms, whose definitions cross-reference a preexisting statute.
Anyone curious about the “specific sexual activities” whose depic-
tion may be obscene can peruse Florida Statutes, Section
847.001(23). Here, it’s enough to say that Florida law amply details
which body parts, doing what, constitute “nudity,” “sexual con-
duct,” and so on. Fla. Stat. § 847.001(10), (11), (19), (20), (23).
We can’t say the same for the meaning of “lewd conduct”
under the statute, though....
...“harmful to minors” (in a variety of mediums). See Fla. Stat. §
847.012. That
law does not specify that content is to be evaluated by statewide community
standards but just “standards in the adult community as a whole.” Id.
§
847.001(7)(b)....
...05/13/2025 Page: 62 of 127
62 Opinion of the Court 23-12160
patently offensive . . . for minors” and “is without serious value . . .
for minors.” Fla. Stat. § 847.001(7)....
...lue for a
11 Florida’s pre-existing “harmful to minors” statute, like the Act, does not ad-
just the “appeals to a prurient, shameful, or morbid interest” prong based on
age. See Fla. Stat. §§
827.11(1)(a)1;
847.001(7)(a).
USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 63 of 127
23-12160 Opinion of the Court 63
legitimate minority of juveniles, ....
...bition, or other presentation in front of a live audi-
ence which, in whole or in part, depicts or simulates
nudity, sexual conduct, sexual excitement, or specific
sexual activities as those terms are defined in s.
847.001, lewd conduct, or the lewd exposure of pros-
thetic or imitation genitals or breasts when it:
1....
...mitation genitals or breasts.” Maj.
Op. at 42; Fla. Stat. §
827.11(1)(a). But the statute also lists “nudity,
sexual conduct, sexual excitement, [and] specific sexual activities as
those terms are defined in [Section]
847.001.” Id. Section
847.001,
USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 97 of 127
16 TJOFLAT, J., Dissenting 23-12160
in turn, contains a laundry list of sexual acts. Maj. Op. at 43; Fla.
Stat. §
847.001....
...sexual activities
USCA11 Case: 23-12160 Document: 82-1 Date Filed: 05/13/2025 Page: 103 of 127
22 TJOFLAT, J., Dissenting 23-12160
as those terms are defined in s.
847.001.” See Fla. Stat. §
827.11. In-
deed, the statute incorporates §
847.001’s “specific sexual activities”
before inserting the “lewd conduct” phrase....
...but it does so by reading the text harmoniously, rather than pitting
the statute against itself. Here, §
827.11’s enumeration of specific
terms—especially the “specific sexual activities” incorporated from
§
847.001—serves a useful purpose in limiting the statute’s “lewd
conduct” phrase to similar, hard-core depictions of sexual conduct....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Oct 9, 2024
CopyPublished | Florida 2nd District Court of Appeal
...end, let alone address, the
-6-
significance of a much clearer difference between the elements of the two offenses.3
Unlawful travel requires proof that the child victim is less than 18 years old. See §
847.001(3) (defining "child pornography" as "any image depicting a minor engaged in
sexual conduct"); §
847.001(8) (defining "minor" as "any person under the age of 18
years"); Fla. Std. Jury Instr. (Crim.) 11.17(c) (defining "child" for purposes of section
847.0135(4)(a) as "any person, whose identity is known or unknown, less than 18 years
of age"); cf. §
847.001(1) (defining "adult" as "a person 18 years of age or older").
Attempted lewd battery, however, requires proof that the intended child victim is at least
twelve years' old but less than sixteen years' old....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 4273, 2015 WL 1334323
...(2010) (“Transmission of pornography by electronic
device or equipment prohibited”). The information alleged twenty counts
as follows:
DUNCAN JASON SMITH on or about April l3, 2010, in the
County of Palm Beach and State of Florida, did transmit child
pornography, as defined in section
847.001, Florida Statute,
knowing or having reason to know it was child pornography,
to another person in Florida or in any other jurisdiction, or
from any jurisdiction outside of Florida to any person in the
State of Florida, contrary Florida Statutes
847.0137(2) and
(3)....
...with the defendant while he was downloading the files, but the affidavit does not
state whether he discussed the fact that he was downloading the files.
2 Miranda v. Arizona,
384 U.S. 436 (1966).
2
defined in s.
847.001, to another person in this state or in
another jurisdiction commits a felony of the third degree,
punishable as provided in s....
CopyPublished | Florida 1st District Court of Appeal | 2003 Fla. App. LEXIS 8552, 2003 WL 21305285
...The only evidence presented by the State to show that the material was obscene was the victim’s testimony. After reviewing that testimony, we hold that the evidence was insufficient to make a prima facie showing that the evidence was obscene as defined by section 847.001, Florida Statutes....
CopyPublished | Supreme Court of Florida | 2016 WL 3450481
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla....
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla....
CopyPublished | Supreme Court of Florida | 1960 Fla. LEXIS 2499
adjudged guilty, and sentenced for a violation of § 847.01, F.S.1957, F.S.A. Appellant appeals from the judgment
CopyPublished | Supreme Court of Florida | 1971 Fla. LEXIS 3563
publications alleged to be obscene under Fla.Stat. § 847.01, F. S.A. In its Final Judgment relating to the
CopyPublished | Florida 4th District Court of Appeal
...of section
847.0138(2), Florida Statutes (2017). The statute proscribes:
(2) Notwithstanding ss.
847.012 and
847.0133, any person
who knew or believed that he or she was transmitting an
image, information, or data that is harmful to minors, as
defined in s.
847.001, to a specific individual known by the
defendant to be a minor commits a felony of the third degree
....
§
847.0138(2), Fla. Stat. Section
847.001(6), Florida Statutes (2017),
defines “harmful to minors” as:
3
[A]ny reproduction, imitation, characterization, description,
exhibition, presentation, or representation, of whatev...
...ailing standards in the adult
community as a whole with respect to what is suitable
material or conduct for minors; and
(c) Taken as a whole, is without serious literary, artistic,
political, or scientific value for minors.
§ 847.001(6), Fla....
...Id. at 322. Although the court did not address
any issue concerning jury instructions, in upholding the constitutionality
of the statute, the court wrote:
9
The term “harmful to minors” is defined in section 847.001(6),
Florida Statutes (2002), and incorporates the constitutional
standard for obscenity established by the United States
Supreme Court in Miller v....
CopyPublished | Supreme Court of Florida
...y does not include an act
done for a bona fide medical purpose.
Give if applicable.
“Bona fide” means genuine.
Lakey v. State,
113 So. 3d 90 (Fla. 5th DCA 2013).
The definition of “an object” includes a finger.
§
847.001(13), Fla....
...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.
-6-
§ 847.001(15), Fla....
...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. Stat., that differ from the statutory definitions in §
847.001, Fla....
CopyPublished | Supreme Court of Florida
...depicting any person engaging in sexual conduct.
§
784.049(2)(a), Fla. Stat.
-9-
“Image” includes but is not limited to, any photograph, picture, motion
picture, film, video, or representation.
§
847.001(9), Fla....
...below the top of the nipple; or the depiction of covered male genitals in a
discernibly turgid state. [A mother breastfeeding her baby does not under any
circumstance constitute “nudity,” irrespective of whether or not the nipple is
covered during or incidental to feeding.]
§ 847.001(16), Fla. Stat.
If necessary, insert additional definitions from § 847.001, Fla....
...(Defendant) sent the image, information or data to a specific
individual who was either actually known by [him] [her] to be a
minor or believed by [him] [her] to be a minor.
3. (Defendant) sent the image, information or data via electronic mail.
Definitions. Give as applicable.
§ 847.001(6), Fla....
...nudity, or excretion. Material does not appeal to a prurient interest if the
average person today can view the material candidly, openly, and with a
normal interest in sex.
“Morbid interest” means diseased, dwelling on the gruesome, or sick.
§ 847.001(8), Fla. Stat.
“Minor” means any person less than 18 years of age.
§ 847.001(9), Fla....
...ction of covered male genitals
in a discernibly turgid state. A mother’s breastfeeding of her baby does not
under any circumstance constitute “nudity,” irrespective of whether or not
the nipple is covered during or incidental to feeding.
§ 847.001(16), Fla....
...ire 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.”
§ 847.001(19), Fla....
...Stat.
“Simulated” means the explicit depiction of conduct described in the
definition of “sexual conduct” which creates the appearance of such conduct
and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
§ 847.001(5), 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.
§ 847.001(15), Fla. Stat.
- 13 -
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§ 847.001(13), Fla....
...person or animal, or the condition of being fettered, 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(14), Fla....
...“sexual battery” does not include an
act done for a bona fide medical purpose.
Give if applicable.
“Bona fide” means genuine.
Lakey v. State,
113 So. 3d 90 (Fla. 5th DCA 2013).
“An object” includes a finger.
§
847.001(17), Fla....
CopyPublished | Florida 2nd District Court of Appeal | 2002 Fla. App. LEXIS 1806, 2002 WL 236625
...aterial. Foburg was charged with showing obscene material to a child in violation of section
847.0133, Florida Statutes (1995). The only evidence the State presented that tended to show that the material was obscene, as that term has been defined by section
847.001, was contained in the testimony of the victim named in the information and that of another teenage girl....
CopyPublished | Florida 2nd District Court of Appeal
explaining that it would support a charge under section 847.01, Florida Statutes (1957), which prohibited
CopyPublished | District Court of Appeal of Florida
Business” declared obscene within the meaning of § 847.01, Fla.Stat., F.S.A. It should he noted that we
CopyPublished | Supreme Court of Florida | 1960 Fla. LEXIS 2053
trial court directly passed upon the validity of § 847.01, F.S.A., or construed a controlling provision
CopyPublished | Florida 1st District Court of Appeal | 2011 Fla. App. LEXIS 12389, 2011 WL 3452939
...AFFIRMED. BENTON, C.J., Concurs With Opinion; CLARK, J., Concurs in Result Only. . A jury acquitted Appellant of a second charge, lewd or lascivious conduct. . Section
847.0133, Florida Statutes, incorporates the definition of "obscene” found in section
847.001(10), Florida Statutes....
...Taken as a whole, lacks serious literary, artistic, political, or scientific value. . Our decision in Haggerty v. State,
531 So.2d 364 (Fla. 1st DCA 1988), as Appellant recognizes, is inapposite to the instant case. There the appellant asserted that section
847.001(7), Florida Statutes (1987), defining "obscene,” was facially unconstitutional because it did not expressly apply "contemporary community standards” to the first two prongs of the *406 Miller test or the reasonable person standard to the third prong. (Section
847.001(7) was renumbered to section
847.001(10), without substantive change, effective July 1, 2001....
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 221, 2015 Fla. LEXIS 927, 2015 WL 1932145
...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....
...- 17 -
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), Fla....
...person or animal, or the condition of being fettered, 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), Fla....
...Give as applicable.
The words “lewd” and “lascivious” mean the same thing and mean a
wicked, lustful, unchaste, licentious, or sensual intent on the part of the person
doing an act.
- 20 -
If 2a or 2c is alleged, define the act charged from § 847.001, Fla....
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla....
...A “child” means any person, whose identity is known or unknown, less
than 18 years of age.
Give the following definitions if applicable. Additional definitions can be
added as applicable depending on the nature of the alleged illegal conduct. See
§ 847.001, Fla....
...Stat.
“Transmit” means the act of sending and causing to be delivered any
image, information, or data from one or more persons or places to one or
more other persons or places over or through any medium, including the
internet, by use of any electronic equipment or device.
§ 847.001(3), Fla....
...Stat.
“Child pornography” means any image depicting a minor engaged in
sexual conduct.
- 30 -
§
847.0137(1)(a), Fla. Stat.
“Minor” means any person less than 18 years of age.
§
847.001(16), Fla....
...re 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.”
§ 847.001(19), Fla....
...Stat.
“Simulated” means the explicit depiction of conduct described in the
definition of “sexual conduct” which creates the appearance of such conduct
and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
§ 847.001(5), 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.
§ 847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§ 847.001(13), Fla....
...person or animal, or the condition of being fettered, 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(14), Fla....
...(Defendant) sent the image, information or data to a specific
individual who was either actually known by [him] [her] to be a
minor or believed by [him] [her] to be a minor.
3. (Defendant) sent the image, information or data via electronic mail.
Definitions. Give as applicable.
§ 847.001(6), Fla....
...or scientific value for minors.
A mother’s breastfeeding of her baby is not under any circumstance
“harmful to minors.”
§
847.0137(1)(a), Fla. Stat.
“Minor” means any person less than 18 years of age.
§
847.001(9), Fla....
...tion of covered male genitals
in a discernibly turgid state. A mother’s breastfeeding of her baby does not
under any circumstance constitute “nudity,” irrespective of whether or not
the nipple is covered during or incidental to feeding.
§ 847.001(16), Fla....
...re 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.”
§ 847.001(19), Fla....
...Stat.
“Simulated” means the explicit depiction of conduct described in the
definition of “sexual conduct” which creates the appearance of such conduct
and which exhibits any uncovered portion of the breasts, genitals, or buttocks.
§ 847.001(5), 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.
§ 847.001(15), Fla. Stat.
“Sexual bestiality” means any sexual act, actual or simulated, between a
person and an animal involving the sex organ of the one and the mouth, anus,
or vagina of the other.
§ 847.001(13), Fla....
...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.
- 34 -
§ 847.001(14), Fla....
...tration of another
by a finger or any other object; however, “sexual battery” 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(17), Fla....
