Arrestable Offenses / Crimes under Fla. Stat. 847.0135
S847.0135 2 - OBSCENE COMMUNICATION - COMPILE ENTER ETC COMPUTER PORNO RE MINOR - F: T
S847.0135 3 - OBSCENE COMMUNICATION - RENUMBERED. SEE REC#6338 - F: T
S847.0135 3 - OBSCENE COMMUNICATION - RENUMBERED. SEE REC #S 7577 AND 7578 - F: S
S847.0135 4 - OBSCENE COMMUNICATION - RENUMBERED. SEE REC#6334 - M: F
S847.0135 5 - OBSCENE COMMUNICATION - RENUMBERED. SEE REC # 6532 - M: F
S847.0135 6 - OBSCENE COMMUNICATION - OWNER OPERATOR PERMIT COMPUTER PORN VIOLATION - M: F
S847.0135 2d - CRUELTY TOWARD CHILD - BUY SELL ETC MINOR INFO FOR SEX PURPOSE - F: T
S847.0135 3a - OBSCENE COMMUNICATION - USE COMPUTER TO SEDUCE SOLICIT LURE CHILD - F: T
S847.0135 3a - OBSCENE COMMUNICATION - USE COMP SEDUCE SOLICIT LURE CHILD MISREP AGE - F: S
S847.0135 3b - OBSCENE COMMUNICATION - USE COMPUTER SOLICIT PARENT GUARDIAN CONSENT - F: T
S847.0135 3b - OBSCENE COMMUNICATION - USE COMP SOLICIT PAR GUARD CONSENT MISREP AGE - F: S
S847.0135 4a - OBSCENE COMMUNICATION - TRAVEL TO MEET AFTER USE COMPUT TO LURE CHILD - F: S
S847.0135 4b - OBSCENE COMMUNICATION - TRAVEL TO MEET USE COMPUTER SOLICIT GUARDIAN - F: S
S847.0135 5b - OBSCENE COMMUNICATION - 18+ YOA LL EXHIB VIA COMPUTER VICTIM LT 16 YOA - F: S
S847.0135 5c - OBSCENE COMMUNICATION - LT 18 YOA LL EXHIB VIA CPU VICTIM LT 16 YOA - F: T
CopyCited 89 times | Published | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 362, 2015 Fla. LEXIS 1382, 2015 WL 3887433
...nd District Court of Appeal
certified conflict with a decision from the First District Court of Appeal on the
issue of whether the Florida Legislature explicitly stated its intent in the Computer
Pornography and Child Exploitation Prevention Act, section 847.0135, Florida
Statutes (2011), to allow separate convictions for conduct that violates both section
847.0135(3)(b)’s prohibition against solicitation and section 847.0135(4)(b)’s
prohibition against traveling after solicitation....
...stant messenger,
and text message, to have sex with the “mother” and her fictitious ten-year-old
daughter. Id. Shelley was arrested when he arrived at the arranged meeting place.
Id.
The State charged Shelley with a single violation of section 847.0135(3)(b),
which prohibits the use of computer services or devices to solicit the consent of a
parent or a person believed to be the parent, legal guardian, or custodian of a child
to engage in unlawful sexual conduct with the child. In addition, the State charged
Shelley with a single violation of section 847.0135(4)(b), which prohibits traveling
1....
...principles prohibit separate convictions and punishments based upon the same
conduct. M.P.,
682 So. 2d at 81.
To resolve the conflict between the First and Second Districts concerning the
Legislature’s intent, we look to the plain language of section
847.0135.4 See State
v....
...be a parent, legal guardian, or custodian of a child to consent to the
participation of such child in any act described in chapter 794, chapter
800, or chapter 827, or to otherwise engage in any sexual conduct,
commits a felony of the third degree[.]
§ 847.0135(3)(b), Fla....
...be a parent, legal guardian, or custodian of a child to consent to the
participation of such child in any act described in chapter 794, chapter
800, or chapter 827, or to otherwise engage in any sexual conduct,
commits a felony of the second degree[.]
§ 847.0135(4)(b), Fla....
...lating to the possession, use, or
exhibition of a firearm’ ”) (quoting §
790.22(7), Fla. Stat. (Supp. 1994)).
Moreover, though the State also argues that the Legislature demonstrated its
intent to authorize separate convictions because section
847.0135(3) provides that
each separate use of a computer service or device to solicit may be charged as a
separate offense, this statement pertains only to charging solicitation offenses....
...It
does not address what effect charging a solicitation offense has on the State’s
-7-
ability to use the same solicitation to charge the defendant with traveling after
solicitation.
Similarly, though the State also points to section 847.0135(8)’s statement
that prosecuting a person for “an offense” under section 847.0135 “shall not
prohibit” that person’s prosecution “for a violation of any law of this state” as an
explicit statement of legislative intent to allow dual convictions, subsection (8)
does not purport to address prosecution for multiple offenses under section
847.0135.5 Instead, when read in context, subsection (8) refers to the effect that
prosecuting a person under section 847.0135 has on the ability of the State and
other jurisdictions to prosecute that person for violations of other laws.
Based on the plain language of section 847.0135, we hold that the
Legislature has not explicitly stated its intent to authorize separate convictions and
punishments for conduct that constitutes both solicitation under subsection (3)(b)
and traveling after solicitation under subsection (4)(b). Moreover, because the
5. Section 847.0135(8) provides:
(8) EFFECT OF PROSECUTION.—Prosecution of any person
for an offense under this section shall not prohibit prosecution of that
person in this state or another jurisdiction for a violation of any law of
this state, including a law providing for greater penalties than
prescribed in this section or any other crime punishing the sexual
performance or the sexual exploitation of children.
§ 847.0135(8), Fla....
CopyCited 34 times | Published | Supreme Court of Florida | 34 Fla. L. Weekly Supp. 232, 2009 Fla. LEXIS 313, 2009 WL 465938
...nferred or assumed. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comments This instruction was adopted in 2009. 11.17(a) SOLICITING A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES § 847.0135(3)(a), Fla....
...Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2009. 11.17(b) SOLICITING A PARENT, LEGAL GUARDIAN, OR CUSTODIAN OF A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES § 847.0135(3)(b), Fla....
...olving the sex organ of the one and the mouth, anus, or vagina of the other. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2009. 11.17(c) TRAVELING TO MEET A MINOR § 847.0135(4)(a), Fla....
...or vagina of the other. Lesser Included Offenses No lesser included offenses have been identified for this offense. Comment This instruction was adopted in 2009. 11.17(d) TRAVELING TO MEET A MINOR FACILITATED BY PARENT, LEGAL GUARDIAN, OR CUSTODIAN § 847.0135(4)(b), Fla....
CopyCited 34 times | Published | Florida 1st District Court of Appeal | 2004 WL 874917
...tivities, and showed up at the meeting place at the time agreed upon, wearing the clothes which he had told the boy by e-mail that he would be wearing. After his numerous motions to dismiss were denied, appellant pled nolo contendere to violation of section 847.0135(3), Florida Statutes (2001), included in the "Computer Pornography and Child Exploitation Prevention Act of 1986," which provides: Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin boar...
...trate a prima facie case against him. We find that the statute is valid as against all of appellant's challenges, and that the state's evidence was sufficient to demonstrate his violation of the statute. Constitutional Issues Appellant contends that section 847.0135(3) violates the First Amendment of the United States Constitution because it is a content-based restriction on protected "pure speech" which cannot pass the "strict scrutiny" test, that the statute is overbroad and void for vagueness, and that it places discriminatory restrictions on interstate commerce....
...And if a legitimate local purpose is found, the extent of the burden on interstate commerce that will be tolerated will depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities. Id. We find that even if section 847.0135(3) is considered a content-based restriction on constitutionally protected speech, [1] it passes the "strict scrutiny" test because it promotes a compelling state interest in protecting children from persons who solicit or lure them...
...Appellant's argument that the statute is vague is also without merit. The statutory terms are sufficiently precise to inform a person of ordinary intelligence what acts are proscribed, and the references to chapters 794, 800, and 827 serve to apprise the reader of the definition of "child" as used in section 847.0135(3)....
...The state has a compelling interest in protecting minors from being seduced to perform sexual acts, and no legitimate commerce is burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them. The effect of section 847.0135(3) on interstate commerce is incidental at best and is far outweighed by the state's interest in preventing harm to minors....
...ociation v. Pataki,
969 F.Supp. 160 (S.D.N.Y.1997), relied upon by appellant. See Hatch, 80 Cal.App.4th at 195-97, 94 Cal.Rptr.2d 453; Foley, 731 N.E.2d at 132-33; Hsu, 82 Cal.App.4th at 983-85, 99 Cal.Rptr.2d 184. Mens rea Appellant's argument that section
847.0135(3) is invalid because it fails to include a mens rea element as to the age of the victim is without merit....
...State,
747 So.2d 368 (Fla.1999); Boler v. State,
678 So.2d 319 (Fla.1996). We find that the state's traverse adequately demonstrated a material dispute of the ultimate facts, and that the Internet communications alone constituted a prima facie case of guilt under section
847.0135(3)....
CopyCited 33 times | Published | Supreme Court of Florida | 2001 WL 228446
...hotographs and videotapes and to sell a videotape. Doe did not allege that Russell transmitted photographs or images of her son via the AOL service. In her six-count complaint, Doe claimed that AOL violated criminal statutes, section
847.011 [1] and section
847.0135(2), Florida Statutes (1993). [2] She alleged that AOL was negligent per se in violating section
847.0135, Florida Statutes, by allowing Russell to distribute an *1012 advertisement offering "a visual depiction of sexual conduct involving [John Doe]" and by allowing Russell to sell or arrange to sell child pornography, thus aiding in the...
...NOTES [1] Section
847.011(1)(a), Florida Statutes (1993), provides in relevant part: Any person who knowingly ... distributes... or offers to sell ... any obscene ... photograph ... [or] image ... is guilty of a misdemeanor of the first degree.... [2] Section
847.0135(2), Florida Statutes (1993) (Computer Pornography and Child Exploitation Prevention Act of 1986), provides in relevant part: COMPUTER PORNOGRAPHY.A person is guilty of a violation of this section if he knowingly ......
CopyCited 33 times | Published | Florida 2nd District Court of Appeal | 2003 WL 21554350
...d under the age of sixteen in violation of section
800.04(1), Florida Statutes (1997), one count of interference with custody in violation of section
787.03, Florida Statutes (1997), and one count of seduction of a child via computer in violation of section
847.0135(3), Florida Statutes (1997)....
CopyCited 20 times | Published | Supreme Court of Florida
a child; ... commits a felony .... §
847.0135(3)(a), Fla. Stat. (2013). The unlawful use of
CopyCited 18 times | Published | Supreme Court of Florida | 2006 WL 3313741
...For the reasons explained below, we approve the decision of the First District Court of Appeal in Simmons v. State,
886 So.2d 399 (Fla. 1st DCA 2004). FACTS AND PROCEDURAL HISTORY This case involves the prosecution of Michael John Simmons for luring or enticing a child by use of an online service in violation of section
847.0135, Florida Statutes (2002), [1] and for transmission of material harmful to a minor in violation of section
847.0138, Florida Statutes (2002)....
...xual activities at a motel. When Simmons arrived at the Lake City motel, he was arrested by members of the Columbia County Sheriff's Office. Simmons was charged with one count of luring or enticing a child by use of an online service in violation of section
847.0135, one count of transmission of material harmful to a minor in violation of section
847.0138, and one count of carrying a concealed firearm in violation of section
790.01(2), Florida Statutes (2002)....
...Simmons pled no contest to these counts and reserved his right to appeal the denial of his motions to dismiss. He was sentenced *322 to two concurrent five-year terms of probation. On appeal, Simmons brought facial constitutional challenges to sections
847.0135 and
847.0138....
...The First District also concluded that neither statute violates the Dormant Commerce Clause, and cited its recent opinion in Cashatt v. State,
873 So.2d 430 (Fla. 1st DCA 2004), [4] for this proposition. Simmons,
886 So.2d at 406. Judge Browning concurred with the majority on the constitutionality of section
847.0135, but dissented as to section
847.0138....
...LAW AND ANALYSIS Simmons contends that section
847.0138, the transmission statute, violates First Amendment principles regarding free speech and is also vague and overbroad. He also contends that both the transmission statute and the luring statute, section
847.0135, violate the Dormant Commerce Clause....
...seduce, solicit, lure, or entice" a minor residing in Florida, or a person believed to be a minor residing in Florida, to commit sexual acts proscribed by other Florida statutes, including sexual battery, lewd and indecent exposure, or child abuse. § 847.0135(3), Fla....
...plained in Healy v. Beer Institute . A person who commits a crime partly in one state and partly in another may be tried in either state under the Sixth Amendment of the United States Constitution. See Lane v. State,
388 So.2d 1022, 1028 (Fla.1980). Section
847.0135(5) provides that a person is subject to criminal jurisdiction in Florida pursuant to chapter 910, Florida Statutes, which governs matters of jurisdiction and venue, for engaging in the proscribed conduct either within or outside the state, provided that the targeted recipient is a minor residing in this state or another person that the actor believes to be a minor residing in this state. See also State v. Ruiz,
909 So.2d 986, 987-88 (Fla. 5th DCA 2005) (holding that section
847.0135(5) established subject matter jurisdiction in Florida courts for prosecution of defendant who transmitted pornography via his computer in Virginia to a person that the defendant believed to be a minor in Florida)....
...he state. No wholly extraterritorial conduct is ever affected. CONCLUSION In light of the statutory limitations contained in Florida's Internet regulations and for the reasons explained above, we reject Simmons' constitutional challenges to sections
847.0135 and
847.0138 of the Florida Statutes....
...icit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child" to commit illegal acts relating to sexual battery, lewd or lascivious acts, indecent exposure, or child abuse. See § 847.0135(3), Fla....
...Statutes such as this are commonly referred to as "transmission" statutes. [3] Simmons did not raise any double jeopardy or subject matter jurisdiction arguments in his appeal to the First District Court of Appeal. See Simmons,
886 So.2d at 401 n. 1. [4] In Cashatt, the First District upheld section
847.0135 against constitutional challenges that the statute violates the First Amendment and the Dormant Commerce Clause....
CopyCited 16 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 14131, 2015 WL 5618273
...Tallahassee, and Susan D. Dunlevy,
Assistant Attorney General, Tampa, for
Appellee.
CASANUEVA, Judge.
Stuard Antonio Meythaler appeals his judgments and sentences for
traveling to seduce, solicit, or entice a minor for sex in violation of section
847.0135(4)(a), Florida Statutes (2013), and using a computer to seduce, solicit, or
entice a minor for sex in violation of section 847.0135(3)(a)....
...n the face
of the record.
In Shelley, 40 Fla. L. Weekly at S363, the appellee was accused of using
computer services or devices to solicit the consent of a parent to engage in unlawful
sexual conduct with a child in violation of section 847.0135(3)(b), Florida Statutes
(2011). In addition, he was accused of violating section 847.0135(4)(b) by traveling to
-3-
meet a minor to engage in unlawful sexual conduct after using computer services or
devices to make a prohibited solicitation....
...at S364 (citing Blockburger v. United States,
284 U.S. 299 (1932)).
The holding in Shelley is binding in this case. In Kim v. State,
154 So. 3d
1168 (Fla. 2d DCA 2015), as in the present case, the appellant was charged with
violating sections
847.0135(3)(a) and
847.0135(4)(a)....
CopyCited 15 times | Published | Florida 4th District Court of Appeal | 1997 WL 360971
...for child pornographyespecially with 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....
...fense 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. Further, defendant's alleged conduct in this case included not only the possession of computer images, 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)....
...The summary of the "present situation" acknowledges that possession of child pornography is punishable as a third-degree felony under section
827.071(5). See id. The analysis states that the Computer Pornography and Child Exploitation Act of 1986 (section
847.0135) was created "to prohibit the transmission of computer pornography involving minors." Id. "The intent of this bill is to prevent computer `hackers' from transmitting demographic and other information on children for the purpose of encouraging sexual conduct with a child." Id. The purpose of section
847.0135 was thus to enhance the protection of minors by prohibiting this unfortunate bi-product of computer technology....
...which is not protected by the First Amendment, see Osborne v. Ohio,
495 U.S. 103,
110 S.Ct. 1691,
109 L.Ed.2d 98 (1990); whereas, the CDA attempts to protect minors from harmful material on the Internet. [11] See generally Shiff, supra note 7. [12] Section
847.0135, the "Pornography and Child Exploitation Prevention Act of 1986," states in relevant part: (2) Computer pornography.A person is guilty of a violation of this section if he knowingly compiles, enters into, or transmits by means of c...
...e number, place of residence, physical characteristics, or other descriptive or identifying information, for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of 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). The amendments to section
847.0135 also prohibit certain uses of computer services and provide for liability of the owners or operators of the computer services. §
847.0135, Fla....
CopyCited 12 times | Published | Florida 1st District Court of Appeal | 2013 WL 5567495
conduct with a person believed to be a minor. See §
847.0135(3)(b), (4)(b), Fla. Stat. (2011). The charges
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2004 WL 330877
...Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee. POLEN, J. This appeal arises from a final judgment finding James Karwoski guilty of computer pornography and child exploitation in violation of Florida Statute section 847.0135(3)....
...im. After being arrested, Karwoski gave a statement. He explained that he was meeting someone there, but that he did not know how old the person was. Karwoski was found guilty as charged. This appeal timely follows. On appeal, Karwoski contends that section
847.0135, Florida Statutes, is unconstitutionally overbroad, vague, and an impermissible content-based regulation in violation of his First and Fourteenth Amendment rights. The Florida Supreme Court has commented on the "strong presumption in favor of the constitutionality of statutes." State v. Kinner,
398 So.2d 1360 (Fla.1981). Section
847.0135 reads, in part, as follows: Certain uses of computer services prohibited.Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attemp...
...the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree.... *488 § 847.0135(3), Fla....
...plain reading of the statute compels the conclusion that "child" includes both minor and adult children. After all, few of us, if asked the number of children we had, would limit our response to those children under the age of majority. Id. at 1157. Section 847.0135(3), Florida Statutes, is distinguishable from the statute at issue in Mazzella. Most importantly, the statute in Mazzella did not cross-reference any statutory sections that may have given the undefined term any meaning other than its plain meaning. However, section 847.0135 specifically points to chapter 794, chapter 800, and chapter 827 of the Florida Statutes....
CopyCited 10 times | Published | Florida 5th District Court of Appeal | 1998 WL 135080
...In any event, there must be a limit on the reach of attempts or else the crime of attempt will cease to have meaning. NOTES [1] Fla. R.Crim. P. 3.160. [2] Fla. R.Crim. P. 3.600. [1] 18 U.S.C. § 2423(b) (1994). See U.S. v. Young,
131 F.3d 138 (4th Cir.1997). [2] Section
847.0135(3), Florida Statutes (Supp....
CopyCited 9 times | Published | Supreme Court of Florida | 2008 WL 5245686
...----------------------------- Unnatural and lascivious act
800.02 11.8 ----------------------------------------------------------------------- Comment This instruction was adopted in 2008. 11.10(f) LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE §
847.0135(5), Fla....
...The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense is not a defense to the crime charged. Lesser Included Offenses ------------------------------------------------------------------ LEWD OR LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE 847.0135(5) ------------------------------------------------------------------ CATEGORY ONE CATEGORY TWO FLA....
...of instruction 11.10(c) as proposed by the Committee has been modified to add the word "intentionally." Additionally, due to recent legislation moving the statutory language setting forth the crime of lewd and lascivious exhibition over a computer service from section
800.04(7)(b) to section
847.0135(5), Florida Statutes (2008), see ch.2008-172, §§ 3-4, Laws of Fla., the statutory reference contained in the title and the table of lesser included offenses for instruction 11.10(f) has been corrected and a comment has been added....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2005 WL 2086340
...with directions for resentencing. Affirmed in part, reversed in part, and remanded. KELLY and WALLACE, JJ., Concur. NOTES [1] Gisi was also convicted of interference with custody, §
787.03, Fla. Stat. (1997), and seduction of a child via computer, §
847.0135(3), Fla....
CopyCited 6 times | Published | Florida 4th District Court of Appeal | 1998 WL 712764
...ermitting Russell "to sell, distribute, transmit or offer to sell, distribute or transmit photographs and videotape containing the images of the minor Plaintiff, JOHN DOE, which were unlawful and obscene." In count two, she alleged that AOL violated section 847.0135(2), Florida Statutes, the Computer Pornography and Child Exploitation Prevention Act of 1986, by allowing Russell to distribute an advertisement offering "a visual depiction of sexual conduct involving [John Doe]" and by allowing Russell to sell child pornography, thus aiding in the sale and distribution of child pornography. In count three, she claimed that section 847.0135, Florida Statutes, is specifically designed to protect a certain class of persons, and its violation constitutes negligence per se....
CopyCited 6 times | Published | Florida 1st District Court of Appeal | 2004 WL 2579449
...Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee. POLSTON, J. Appellant Michael John Simmons brings facial constitutional challenges against criminal statutes sections
847.0135 and
847.0138, Florida Statutes (2002), relating to use of the Internet....
...hotel. Members of the Columbia County Sheriff's Office met and arrested appellant at the hotel in Lake City, Florida, upon his arrival. Appellant was charged in count one with luring or enticing a child by use of an on-line service, in violation of section
847.0135, in count two with transmission of materials harmful to a minor, in violation of section
847.0138, and in count three with carrying a concealed firearm, in violation of section
790.01(2), Florida Statutes (2002). Appellant moved to dismiss count one of the information, alleging that section
847.0135 imposes an unconstitutional burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the United States Constitution....
...titutional burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the United States Constitution. Appellant also moved to dismiss count two of the information on the basis that his prosecution for violations of both sections
847.0135 and
847.0138 constituted a double jeopardy violation....
...n, reserving his right to appeal the denial of his dispositive motions to dismiss. [1] Appellant was sentenced to two concurrent five-year terms of probation. We affirm the trial court's ruling rejecting the dormant commerce clause challenge against section
847.0135, in count one, in accordance with this court's recent ruling in Cashatt v. State,
873 So.2d 430 (Fla. 1st DCA 2004) (holding that section
847.0135 does not violate the commerce clause)....
...me larger work the minors have not seen. [7] Accordingly, section
847.0138 is narrowly tailored and not vague. III. Appellant also challenges section
847.0138 as violating the dormant Commerce Clause, which we reject for the same reasons relating to section
847.0135 as addressed in Cashatt, and because a violator who is not in Florida must know or believe that he or she is transmitting harmful material to a Florida minor. See §
847.0138(3), Fla. Stat. We do not agree with appellant's argument that section
847.0135 violates the Commerce Clause because it subjects interstate use of the Internet to inconsistent state regulation....
...Congress specifically provides for preemption of state law when it desires. For example, the Florida Supreme Court recently held, in Doe v. America Online, Inc.,
783 So.2d 1010 (Fla.2001), that the federal Communications Decency Act preempted Doe's cause of action against AOL for negligence per se in violating section
847.0135 by allowing Richard Lee Russell to lure her son, eleven *407 years old, and two other minor males to engage in sexual activity with each other and Russell....
...with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Doe,
783 So.2d at 1012 n. 4 (quoting 47 U.S.C. § 230(d)(3)). Appellant makes no argument that section
847.0135 is contrary to any federal law or that federal law so thoroughly occupies the legislative field as to require a reasonable inference that Congress left no room for it to be supplemented by state law....
...1st DCA 2003) (rejecting the federal law preemption argument because there was no express preemption language, no conflict between state and federal law, and the federal law did not thoroughly occupy the field of law). Conclusion Therefore, we reject appellant's facial constitutional challenges against sections
847.0135 and
847.0138, Florida Statutes. AFFIRMED. HAWKES, J. concurs; BROWNING, J., concurring in part and dissenting in part by Separate Opinion. BROWNING, J., concurring in part and dissenting in part. I concur with the majority opinion as it applies to section
847.0135, Florida Statutes (2002)....
...p. By this Court's delaying that determination, I do not think the best interest of minors or the public is well-served. For these reasons, I dissent from the majority opinion relating to section
847.0138. I would affirm Appellant's conviction under section
847.0135 and reverse his conviction under section
847.0138 because such statute is facially unconstitutional for the reasons stated....
CopyCited 6 times | Published | Florida 2nd District Court of Appeal | 2006 WL 1113577
...Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee. CASANUEVA, Judge. Chris A. Wegner appeals from his convictions for receiving computer transmissions of descriptive or identifying information about a minor for the purpose of sexual conduct with a child, in violation of section
847.0135(2)(d), Florida Statutes (2000), and for showing obscene material to a minor, in violation of section
847.0133, Florida Statutes (2000). We reject Mr. Wegner's assertion that the trial court committed three reversible errors and affirm. One issue, however, merits discussion. Mr. Wegner contends that section
847.0135(2)(d) is unconstitutional in two primary ways....
...Wegner further contends that the statute violates the First Amendment by encompassing protected expression. The State charged Mr. Wegner by amended information with a violation of a provision of the Computer Pornography and Child Exploitation Prevention Act of 1986, which is codified in section 847.0135. Section 847.0135(2)(d) imposes criminal liability on a person who *438 [b]uys, sells, receives, exchanges, or disseminates, any notice, statement, or advertisement, or any minor's name, telephone number, place of residence, physical characteristics,...
...possessed such knowledge, was necessary. [2] "Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process." Id. at 229-30,
78 S.Ct. 240. Section
847.0135(2)(d) lacks an explicitly stated mens rea element....
...An express provision dispensing with guilty knowledge will always control, of course, since in that instance the Legislature will have made its intent clear." Id. at 516. We can discern no legislative intent to dispense with a knowledge or mens rea element in section 847.0135(2)(d)....
...Wegner with knowledge of that fact and the trial court required the State to prove it, we find no due process violation and affirm the conviction on this ground. See Cashatt v. State,
873 So.2d 430 (Fla. 1st DCA 2004) (concluding that the failure of section
847.0135(3) to contain a mens rea requirement is not fatal because criminal statutes are presumed to include a knowledge requirement in the absence of a contrary legislative statement)....
...Because we have construed the statute to require mens rea or scienter, this argument also fails. Affirmed. DAVIS, J., Concurs. KELLY, J., Concurs specially. KELLY, Judge, Specially concurring. I concur in the majority's result; however, I respectfully disagree with the majority's conclusion that section 847.0135(2)(d) lacks an explicitly stated mens rea element....
CopyCited 5 times | Published | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 617, 2013 Fla. LEXIS 1893, 2013 WL 4734579
SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES §
847.0135(3)(a), Fla. Stat. To prove the crime of Soliciting
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 14072, 2015 WL 5603461
...Adonis Losada (“Appellee”), and dismissing thirty-one of thirty-three
counts of Transmission of Child Pornography pursuant to sections
847.0137(2) and (3), Florida Statutes (2009), as well as thirty-one of thirty-
three counts of Computer Pornography under section
847.0135(2), Florida
Statutes (2009)....
...only issue before the court was what constitutes a transmission. Smith at D738-
39.
3
places over or through any medium, including the Internet, by use of any
electronic equipment or device” (emphasis added).
Section 847.0135(2)(a), Florida Statutes (2009), under which Defendant
was also charged, provides that “A person who ....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2006 WL 3373103
...The motions for rehearing en banc and certification of question of great public importance are denied, but the motion for rehearing is granted. We therefore withdraw our previous opinion and substitute the following in its place. Steven Grohs was convicted of violating Florida Statutes section 847.0135(3) as charged in the Information filed against him and was sentenced to 28.2 months in prison....
...rson believed by Steven Grohs to be a child to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, contrary to Florida Statute 847.0135(3). Florida Statutes section 847.0135(3) provides: Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another pers...
...ttery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. As such, Grohs was charged with violating section
847.0135(3) in any and every way it can be violated and was not charged solely with soliciting or attempting to solicit a child or person believed to be a child....
...s evidence if the cell phone number was provided in an e-mail?" The trial court asked the authoring juror to clarify the inquiry, and the juror explained that the jury was seeking a clarification of its confusion regarding the "utilizing" element of section 847.0135(3)....
...As a preliminary matter, a review of the trial transcript and a reading of Grohs's summary of the argument (not to mention other statements included in the briefs filed both by Grohs and the State) give the impression that Grohs's main argument on appeal would be that section 847.0135(3) does not encompass telephone conversations so that it was error to instruct the jury that it did and allow the jury to consider evidence related to the telephone conversations as proof of guilt....
...As for this issue, Grohs argues that the evidence did not establish that Grohs solicited "Bobby" by e-mail and that the trial court invaded the province of the jury by indicating that it could instead use the telephone conversations to convict Grohs for computer solicitation under section 847.0135(3)....
...We conclude that the argument that is raised by Grohs in his initial brief regarding the jury's question, focusing on the trial court invading the province of the jury, is without merit. By answering the jury's question in the affirmative, the trial court made a legal determination regarding the scope and meaning of section 847.0135(3), and not a factual determination regarding whether there was evidence adduced that demonstrated a violation of the statute as Grohs contends....
...uggested by Grohs below). The second issue raised by Grohs asserts that the trial court erred by denying Grohs's motion for judgment of acquittal because the evidence presented at trial did not constitute solicitation sufficient for conviction under section 847.0135(3). As for this issue, Grohs contends that there was insufficient evidence to support a conviction for violating section 847.0135(3) because neither in the e-mails nor the telephone calls did Grohs, either explicitly or implicitly, ask or induce "Bobby" to engage in sex or mention sex, so that Grohs could not be said to have seduced "Bobby." The State responds that the intent of section 847.0135(3) is not to render Grohs immune from prosecution "as long as he is not explicit with his intentions while online." Furthermore, the State emphasizes that the statute is not only violated by solicitation, but also by seduction, entic...
...ury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge. Lynch v. State,
293 So.2d 44, 45 (Fla.1974). On this issue, Grohs's argument suffers from the flaw of too narrowly reading section
847.0135(3) and focusing entirely on whether the evidence presented established that he solicited "Bobby." What Grohs overlooks is that he could also violate section
847.0135(3) by seducing, luring, or enticing "Bobby." These terms were not defined in the statute or a standard jury instruction, but in the absence of such definition, this Court looks to their plain and ordinary meaning, whether expressed in a dictionary or similar statutes....
...where statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense."). The terms seduce, solicit, lure, and entice are not elsewhere defined in statutes that are either similar or related to section 847.0135(3). [2] As such, we turn to a dictionary to ascertain the plain and ordinary meaning of these terms, a tactic suggested by Grohs by employing definitions from Black's Law Dictionary in a proposed jury instruction on the elements of section 847.0135(3) that was rejected by the trial court (although not raised as error on appeal)....
...d what factual findings the jury could "fairly and reasonably infer" from that evidence. We conclude that it was not unreasonable for the trial court in this case to conclude that *457 the jury could "fairly and reasonably infer" that Grohs violated section 847.0135(3) by his comments, even if only those occurring online during the chat session and e-mail exchanges with "Bobby" are considered....
...otion for judgment of acquittal. Grohs failed to effectively challenge the legal determination reflected in the trial court's answer to the jury's question, and the evidence otherwise can be reasonably construed to support a conviction for violating section 847.0135(3). Therefore, Grohs's conviction and sentence are affirmed. Affirmed. GUNTHER, FARMER and TAYLOR, JJ., concur. NOTES [1] The third issue addresses whether Grohs was charged with a "double inchoate offense" under section 847.0135(3)....
...We reject Grohs's argument on this point because he was not charged with the separate inchoate offense of criminal solicitation under Florida Statutes section
777.04(2). Additionally, there is no indication that section
777.04(2) has any bearing on the definition of "solicit" in section
847.0135(3), especially where criminal solicitation prohibits conduct focused on having another commit a crime in one's stead while section
847.0135(3) criminalizes soliciting a minor to enable an individual to himself commit a crime of sexual battery, lewdness, or child abuse....
...[2] "Solicit" is defined in the Florida Standard Jury Instructions in Criminal Cases in relation to the inchoate offense of criminal solicitation, see Fla. Std. Jury Instr. (Crim.) 5.2, but for the reasons explained in footnote 1, we reject the applicability of this definition to section 847.0135(3).
CopyCited 4 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 29, 2011 Fla. LEXIS 5, 2011 WL 101668
...Subsection (2)(b)2 defines the specific acts that are considered "child molestation" in this context, when committed against a person sixteen years old or younger. Chapter 2008-172, section 9, amends subsection
90.404(2)(b)2 to expand the definition of "child molestation" to include conduct prohibited under section
847.0135(5), Florida Statutes....
...CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur. NOTES [1] Section
90.404(2)(b)2, as amended, provides as follows: For the purposes of this paragraph, the term "child molestation" means conduct proscribed by s.
794.011, or s.
800.04, or s.
847.0135(5) when committed against a person 16 years of age or younger. [2] Section
847.0135(5), Florida Statutes, provides as follows: (5) CERTAIN COMPUTER TRANSMISSIONS PROHIBITED. (a) A person who: 1....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2003 WL 1720169
...erson believed by the person to be a child, to commit any illegal act described in ... chapter 800, relating to lewdness and indecent exposure ... commits a felony of the third degree, punishable as provided in s.
775.082, s.
775.083, or s.
775.084. §
847.0135, Fla....
CopyCited 3 times | Published | Supreme Court of Florida | 2013 WL 6305187
[molestation] [conduct] [exhibition] [violatiny Fla. Stat.
847.0135(5) ]. The statute on which this part of
CopyCited 2 times | Published | District Court of Appeal of Florida
age in the process, a second-degree felony. §
847.0135(3), Fla. Stat. (2016). Similarly, the same statute
CopyCited 2 times | Published | Florida 2nd District Court of Appeal | 2000 WL 201759
...On counts four through fifty-seven, the trial court sentenced Wade as a habitual offender to concurrent terms of ten years in prison, also concurrent with counts one through three. 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....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2009 Fla. App. LEXIS 10972, 2009 WL 2407656
...Specifically, section
943.04354, provides: (1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person: (a) Was or will be convicted or adjudicated delinquent of a violation of s.
794.011, s.
800.04, or s.
847.0135(5) or the person committed a violation of s.
794.011, s.
800.04, or s.
847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s.
794.011, s.
800.04, or s.
847.0135(5); (b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and (c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation....
...This Court reversed, finding that the lower court's failure to impose sex offender conditions as a term of Miller's probation was erroneous. State v. Miller,
888 So.2d 76 (Fla. 5th DCA 2004). [3] 42 U.S.C. § 16901 et. seq. [4] The statute was amended in 2008 to include section
847.0135(5). At the same time, section
847.0135 was amended to include subsection (5)....
CopyCited 1 times | Published | Supreme Court of Florida | 41 Fla. L. Weekly Supp. 422, 2016 Fla. LEXIS 2244
one count of traveling to meet a minor under section
847.0135(4)(b), Florida Statutes (2011).1 Petitioner
CopyCited 1 times | Published | Supreme Court of Florida
(lewd or lascivious offenses); or f. section
847.0135(5), Florida Statutes, (lewd or lascivious
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2008 WL 1968313
...r contributing to the delinquency of a child by an act causing or tending to cause the child to become a delinquent in violation of section
827.04(1)(a), and for using a computer to facilitate or solicit the sexual conduct of a child in violation of section
847.0135(2)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2017 WL 2324673
solicit unlawful sexual conduct, pursuant to section
847.0135(4)(a), Florida Statutes (2012); 2) use of
CopyCited 1 times | Florida 6th District Court of Appeal
...(internal
quotations omitted).
Under section
943.04354, “a person shall be considered for removal of the
requirement to register as a sexual offender . . . only if the person . . . [w]as convicted
. . . or adjudicated delinquent of a violation of” section
800.04,
827.071, or
847.0135(5), “is required to register as a sexual offender ....
...the victim
of this violation who was 13 years of age or older but younger than 18 years of age
at the time the person committed this violation.” §
943.04354(1)(a), (b)1., (c), Fla.
Stat. Maxey was 28 years old when he committed a violation of section
847.0135(3)
involving a perceived 14-year-old victim....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...Appellant raises five issues on appeal, only one of which has merit. Based
on our recent opinion in Hamilton v. State,
163 So. 3d 1277 (Fla. 1st DCA 2015),
we find that Appellant’s convictions for both traveling to meet a minor after
solicitation, in violation of section
847.0135(4)(a), Florida Statutes, and for use of
a two-way communications device in the commission of a felony, in violation of
section
934.215, Florida Statutes, violate double jeopardy under the facts of this
case. See also Holt v. State,
173 So. 3d 1079 (Fla. 5th DCA 2015); Holubek v.
State,
173 So. 3d 1114 (Fla. 5th DCA 2015). 1
We affirm Appellant’s convictions for travelling to meet a minor after using
a computer to solicit the minor, under section
847.0135(4) and for using a
computer or other device capable of electronic data storage to solicit a person
believed to be a child to commit an illegal act, in violation of section
847.0135(3)(a), Florida Statutes, because the illegal acts solicited are separate
illegal acts in this case....
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2017 Fla. App. LEXIS 291
computer services or devices in violation of section
847.0135(3), Florida Statutes (2014), for his actions
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 19428
child to commit a sex act in violation of section
847.0135(4)(a), Florida Statutes (2012), and using
CopyCited 1 times | Published | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 19711, 2014 WL 6778278
...-6-
II. THE PROCEDURAL BACKGROUND
The State filed an information against Mr. Mizner charging him with four
offenses: Count 1, soliciting a parent to consent to sex with a minor in violation of
section
847.0135(3)(b), Florida Statutes (2011), a third-degree felony; Count 2, traveling
to meet a minor in violation of section
847.0135(4)(b), a second-degree felony; Count 3,
unlawful use of a two-way communications device in violation of section
934.215,
Florida Statutes (2011), a third-degree felony; and Count 4, attempt to commit sexual
battery by a person eig...
...3d 936, 939, 941 (Fla. 5th DCA 2010) (discussing
the defense of outrageous government conduct or objective entrapment in the context
of a sting operation directed at pedophiles); Michael W. Sheetz, CyberPredators: Police
Internet Investigations Under Florida Statute 847.0135, 54 U....
...offense.
- 12 -
B. The Double Jeopardy Issues.
On his fourth appellate issue, Mr. Mizner argues that his convictions for
soliciting a parent to consent to sex with minor, in violation of section
847.0135(3)(b),
and unlawful use of a two-way communications device, in violation of section
934.215,
violate the prohibition against double jeopardy....
...traveling
both require the use of "a computer online service, Internet service, local bulletin board
service, or any other device capable of electronic data storage or transmission" as an
element of those offenses, and both offenses are felonies. §
847.0135(3)(b), (4)(b).
5
Section
775.021(4) provides in pertinent part as follows:
(b) The intent of the Legislature is to convict and
sentence for each criminal offense committ...
...icts reached a similar result in Hartley v. State,
129 So. 3d 486 (Fla. 4th DCA 2014), and Pinder v. State,
128 So. 3d 141 (Fla. 5th DCA
2013). In Pinder, the district court agreed with the defendant's "argument that a single
violation of []section [
847.0135](3)(b)[, soliciting,] would be a lesser-included offense of
an offense found under subsection (4)(b), [traveling,]" but affirmed the defendant's
convictions for each offense because "the information alleged, and the evidence
established, more than one violation of subsection (3)(b)." 128 So....
...legislature intended to allow multiple punishments for the two crimes. After reviewing
the statutory language, we concluded in Shelley that "there is an explicit statement of
the legislature's intent to authorize multiple punishments for each violation of section
847.0135(3)(b) [(soliciting)]. However, there is no explicit statement of intent to
authorize multiple punishments for conduct that violates both section 847.0135(3)(b)
and section 847.0135(4)(b) [(traveling)]." Id....
CopyPublished | Florida 6th District Court of Appeal
Pornography and Child Exploitation Prevention Act, section
847.0135, Florida Statutes, of both computer solicitation
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 3864053
sexual conduct of a child, in violation of section
847.0135(3)(b), Florida Statutes (2013) (Count 1);
CopyPublished | Florida 4th District Court of Appeal
...Adonis Losada (“Appellee”), and dismissing thirty-one of thirty-three
counts of Transmission of Child Pornography pursuant to sections
847.0137(2) and (3), Florida Statutes (2009), as well as thirty-one of thirty-
three counts of Computer Pornography under section
847.0135(2), Florida
Statutes (2009)....
... “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” (emphasis added).
Section 847.0135(2)(a), Florida Statutes (2009), under which Defendant
was also charged, provides that “A person who ....
CopyPublished | Florida 1st District Court of Appeal
...Lord, Assistant Public Defender,
Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant appeals his conviction and sentence for improper use of computer
services in violation of section 847.0135(3), Florida Statutes, traveling to meet a
minor in violation of section 847.0135(4), Florida Statutes, and unlawful use of a
two-way communications device in violation of section 924.215, Florida Statutes.
He raises eight issues on appeal....
...double jeopardy, we affirm on authority of State v. Murphy,
124 So. 3d 323, 330-
31 (Fla. 1st DCA 2013), in which this court held that dual convictions for
solicitation of a minor and traveling to meet the minor do not violate double
jeopardy because sections
847.0135(3) and (4) reflect a clear legislative intent to
punish the offenses separately....
CopyPublished | Court of Appeals for the Eleventh Circuit
Argued: Apr 19, 2024
or custodian, in violation of Florida Statute §
847.0135(4)(b). be- lieved that he had been communicating
CopyPublished | Florida 2nd District Court of Appeal
traveling to meet a minor, in violation of section
847.0135, Florida Statutes (2012) (Count 2); using
CopyPublished | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 15950
in unlawful sexual conduct in violation of section
847.0135(3)(a), Florida Statutes (2011), and for thereafter
CopyPublished | Florida 2nd District Court of Appeal
violation of section
847.0135(3)(b), traveling to have sex with a minor in violation of section
847.0135(4)(b)
CopyPublished | Supreme Court of Florida
child, to engage in unlawful sexual conduct. See §
847.0135(3), Fla. Stat. (2012). It is also a felony to
CopyPublished | Florida 5th District Court of Appeal
("solicitation"), in violation of section
847.0135(3)(a), Florida Statues (2014), and traveling
CopyPublished | Florida 4th District Court of Appeal | 2003 WL 22338999
...m Beach, for appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellee. KLEIN, J. Appellant was convicted for computer pornography and child exploitation under section 847.0135(3), Florida Statutes (2001)....
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 15178, 2015 WL 5946849
...Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.
CRENSHAW, Judge.
Christopher Chepelevich challenges his convictions for use of a computer
to solicit a child for unlawful sexual activity as criminalized by section 847.0135(3)(a),
Florida Statutes (2012), and traveling to meet a child for the purpose of engaging in
unlawful sexual activity as criminalized by section 847.0135(4)(a), on the grounds that
they violate the prohibition against double jeopardy.1 "[D]ual convictions for solicitation
and traveling after solicitation based upon the same conduct impermissibly place [the
defendant] in double jeopardy ....
CopyPublished | District Court of Appeal of Florida
computer services or devices in violation of section
847.0135(3)(a), Florida Statutes (2019). The charges
CopyPublished | Florida 5th District Court of Appeal | 2017 WL 4553902
Petitioner was charged with a single violation of section
847.0135(4)(b), Florida Statutes (2011), which prohibits
CopyPublished | Supreme Court of Florida | 2017 WL 4546149
instruction to mirror its title and the language of section
847.0135(3)(b), Florida Statutes (2017). The amended
CopyPublished | Florida 2nd District Court of Appeal | 2014 Fla. App. LEXIS 21532, 2014 WL 8764326
...We review an alleged violation of double jeopardy based on undisputed
facts de novo. See Binns v. State,
979 So. 2d 439, 441 (Fla. 4th DCA 2008). There is
no statement of intent to authorize multiple punishments for the same crime in sections
847.0135(2), (4), Florida Statutes (2011), or section
934.215, Florida Statutes (2011).
See Shelley v. State,
134 So. 3d 1138, 1140 (Fla. 2d DCA 2014). In Shelley, this court
considered the text of section
847.0135(3) and held that although "there is an explicit
statement of the legislature's intent to authorize multiple punishments for each violation
of section
847.0135(3)(b) . . . there is no explicit statement of intent to authorize multiple
punishments for conduct that violates both section
847.0135(3)(b) and section
847.0135(4)(b)." Id. But see Griffis v. State,
133 So. 3d 653, 654 (Fla. 1st DCA 2014)
(holding "that dual convictions for solicitation of a minor and traveling to meet the minor
do not violate double jeopardy because sections
847.0135(3) and (4) reflect a clear
legislative intent to punish the offenses separately"); State v....
...Blockburger v. United States,
284 U.S. 299 (1932).
-2-
not contained in the traveling offense. Shelley,
134 So. 3d at 1141. There are four
elements to traveling to meet a minor under section
847.0135(4):
(1) knowingly traveling within this state, (2) for the purpose of
engaging in any illegal act (in violation of chapters 794, 800,
or 827, or other unlawful sexual conduct) with the victi...
...statement of the victim’s name or other descriptive or identifying information, (2) for the
purpose of facilitating, encouraging, offering, or soliciting illegal sexual conduct with the
victim, and (3) the victim was a child or person believed by the defendant to be a child.
§ 847.0135(2)(d)....
...Both the receiving and
traveling offenses require the use of a communications device, that is, a computer "or
any other device capable of electronic data storage or transmission," and each is a
-3-
felony. § 847.0135(2), (4)....
CopyPublished | Florida 6th District Court of Appeal
solicitation, a third-degree felony under section
847.0135(3)(a), Florida Statutes (2022), and transmission
CopyPublished | Supreme Court of Florida
LASCIVIOUS EXHIBITION OVER COMPUTER SERVICE §
847.0135(5), Fla. Stat. To prove the crime of Lewd
CopyPublished | Florida 1st District Court of Appeal
...Pamela Jo Bondi, Attorney General, and Justin D. Chapman, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Alan Hamilton raises four issues on appeal. We find merit only in his claim
that convictions for traveling to meet a minor under section
847.0135(4), Florida
Statutes (2013), and unlawful use of a two-way communications device under
section
934.215, Florida Statutes (2013), violate double jeopardy, and therefore
vacate his judgment and sentence for unlawful use of a two-way communications
device....
...The two offenses at issue in Murphy,
however, are different from the offenses at issue in the present case. In Murphy,
we held that dual convictions for soliciting a person believed to be a parent to
engage in sexual activity with his or her child under section
847.0135(3)(b), and
traveling to meet a minor after soliciting a person believed to be his or her parent
under section
847.0134(4)(b), do not amount to double jeopardy. Id. at 330. In the
present case, appellant was convicted of traveling to meet a minor under section
847.0135(4), and unlawful use of a two-way communications device under section
934.215....
CopyPublished | Florida 5th District Court of Appeal
objective entrapment, and the constitutionality of section
847.0135(3)(b) and (4)(b), Florida Statutes (2011)
CopyPublished | District Court of Appeal of Florida
using a computer online service, contrary to section
847.0135(4)(a), Florida Statutes (2013) (Count I);
CopyPublished | District Court of Appeal of Florida
sexual conduct of a child, in violation of section
847.0135(3)(b), Florida Statutes (2013) (Count 1);
CopyPublished | Florida 1st District Court of Appeal
charged him with two crimes: one violation of section
847.0135(4)(a), which prohibits traveling for sex with
CopyPublished | District Court of Appeal of Florida
charged him with two crimes: one violation of section
847.0135(4)(a), which prohibits traveling for sex with
CopyPublished | District Court of Appeal of Florida
convictions for solicitation (in violation of section
847.0135(3)(a), Florida Statutes) and traveling after
CopyPublished | District Court of Appeal of Florida
convictions for solicitation (in violation of section
847.0135(3)(a), Florida Statutes), and traveling to
CopyPublished | District Court of Appeal of Florida
traveling to meet a minor, in violation of section
847.0135(4)(a), Florida Statutes (2015), and to attempted
CopyPublished | District Court of Appeal of Florida
(lewd or lascivious offenses); or f. section
847.0135(5), Florida Statutes, (lewd or lascivious
CopyPublished | Florida 1st District Court of Appeal
...felony, and traveling to meet a minor to do unlawful acts, a second-degree felony,
where both charges arose out of the same criminal episode. However, in State v.
Murphy,
124 So. 3d 323 (Fla. 1st DCA 2013), we rejected this double jeopardy
claim upon concluding that subsections
847.0135(3) and (4), Florida Statutes,
reflect a clear legislative intent to punish the offenses separately....
...Accordingly, we certify conflict with those decisions.
Finally, we agree the trial court erred in denying appellant’s motion to
correct sentencing error that challenged the imposition of sex offender probation as
part of his sentence for traveling to meet a minor to do unlawful acts pursuant to
section
847.0135(4)(a), which is not an enumerated offense under section
948.03,
Florida Statutes (2013)....
...imposing special conditions of sex offender probation that are reasonably related to
*
The state cites several cases for its claim that Florida courts have upheld the
imposition of sex offender probation for defendants convicted of violations of
subsections 847.0135(3) and (4)....
CopyPublished | District Court of Appeal of Florida
unlawful sexual activity in violation of section
847.0135(3)(b), Florida Statutes (2010); (2) traveling
CopyPublished | District Court of Appeal of Florida
Information, the State charged Baker with violating section
847.0135(4)(b), the travel after solicitation charge
CopyPublished | Supreme Court of Florida
lewd computer solicitation of a child under section
847.0135(3), Florida Statutes (2010), and (Count II)
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 8587, 2015 WL 3522178
...Alain Guevara appeals his judgments and sentences for one count of
using a computer to seduce, solicit, lure, or entice a child to engage in unlawful sexual
conduct and one count of traveling to meet a minor to engage in unlawful sexual
conduct. See § 847.0135(3)(a), (4), Fla....
CopyPublished | Florida 1st District Court of Appeal
in unlawful sexual conduct in violation of section
847.0135(3)(a), Florida Statutes (2011), and for thereafter
CopyPublished | District Court of Appeal of Florida | 2016 Fla. App. LEXIS 9901
computer service to solicit a minor contrary to section
847.0135(3)(a), Florida Statutes'(2011); unlawful use
CopyPublished | Supreme Court of Florida | 2016 WL 3450481
11.17(c) TRAVELING TO MEET A MINOR §
847.0135(4)(a), Fla. Stat. To prove the crime of
CopyPublished | District Court of Appeal of Florida
minor to commit a sex act on September 15, 2012. §
847.0135(3)(a), (4)(a), Fla. Stat. (2012). A jury found
CopyPublished | Florida 5th District Court of Appeal | 2014 WL 3375018
...At one point, the "niece" asked if Big Blues 83 was coming over to her house. He
asked where they could meet, and she said that he could come to the house or they
could meet somewhere close by. He responded: "Well how about we meet somewhere
2 § 847.0135(4)(a), Fla. Stat. (2010).
3 § 847.0135(3), Fla....
...continue the discussion
at another time. No evidence exists of any intent to engage in sexual activity at the place
and time of the arrest." We disagree.
The State's evidence was sufficient to support an arrest on the solicitation charge.
Section 847.0135 reads, in relevant part, as follows:
847.0135....
CopyPublished | Florida 2nd District Court of Appeal
...," and
"Sabrina."
II. THE PROCEDURAL BACKGROUND
The State filed an information against Mr. Mizner charging him with four
offenses: Count 1, soliciting a parent to consent to sex with a minor in violation of
section
847.0135(3)(b), Florida Statutes (2011), a third-degree felony; Count 2, traveling
to meet a minor in violation of section
847.0135(4)(b), a second-degree felony; Count 3,
unlawful use of two-way communications in violation of section
934.215, Florida
Statutes (2011), a third-degree felony; and Count 4, attempt to commit sexual battery by
a person eighteen yea...
...3d 936, 939, 941 (Fla. 5th DCA 2010) (discussing
the defense of outrageous government conduct or objective entrapment in the context
of a sting operation directed at pedophiles); Michael W. Sheetz, CyberPredators: Police
Internet Investigations Under Florida Statute 847.0135, 54 U....
...Mizner's judgment
and sentence for attempted sexual battery and remand for his discharge on that
offense.
B. The Double Jeopardy Issues.
On his fourth appellate issue, Mr. Mizner argues that his convictions for
soliciting a parent to consent to sex with minor, in violation of section
847.0135(3)(b),
and unlawful use of two-way communications, in violation of section
934.215, violate the
prohibition against double jeopardy....
...Offenses which are lesser offenses the statutory
elements of which are subsumed by the greater offense.
- 13 -
service, or any other device capable of electronic data storage or transmission" as an
element of those offenses, and both offenses are felonies. § 847.0135(3)(b), (4)(b).
Thus the proof of the unlawful use of a two-way communications device was subsumed
within the proof of the soliciting and traveling offenses in this case.
The State argues that because the evidence at trial...
...icts reached a similar result in Hartley v. State,
129 So. 3d 486 (Fla. 4th DCA 2014), and Pinder v. State,
128 So. 3d 141 (Fla. 5th DCA
2013). In Pinder, the district court agreed with the defendant's "argument that a single
violation of []section [
847.0135](3)(b)[, soliciting,] would be a lesser-included offense of
an offense found under subsection (4)(b), [traveling,]" but affirmed the defendant's
convictions for each offense because "the information alleged, and the evidence
established, more than one violation of subsection (3)(b)." 128 So....
...legislature intended to allow multiple punishments for the two crimes. After reviewing
the statutory language, we concluded in Shelley that "there is an explicit statement of
the legislature's intent to authorize multiple punishments for each violation of section
847.0135(3)(b) [(soliciting)]. However, there is no explicit statement of intent to
authorize multiple punishments for conduct that violates both section 847.0135(3)(b)
and section 847.0135(4)(b) [(traveling)]." Id....
CopyPublished | Supreme Court of Florida
or f. section
847.0135(5), Florida Statutes, (lewd or lascivious
CopyPublished | District Court of Appeal of Florida
commit a sex act (count two), in violation of section
847.0135(4)(a), Florida Statutes (2012), and to transmission
CopyPublished | Florida 5th District Court of Appeal
computer services or devices in violation of section
847.0135(3), Florida Statutes (2014), for his actions
CopyPublished | Florida 2nd District Court of Appeal | 2015 Fla. App. LEXIS 105, 2015 WL 72438
...He arranged to meet at a location in
Manatee County that he believed was the girl's home, traveled from his Tampa home to
the Manatee County location, and was taken into custody upon his arrival.
Kim was charged with traveling to seduce/solicit/entice a child to commit a
sex act under section 847.0135(4)(a), Florida Statutes (2012), and use of a computer to
seduce/solicit/entice a child to commit a sex act under section 847.0135(3)(a)....
...The trial court denied the motion, determining that the
dual charges did not violate double jeopardy principles.
But in the recent opinion Shelley v. State, this court addressed a nearly
identical issue, holding as follows:
In essence, the traveling offense [under section
847.0135(4)(b)] proscribes traveling to meet a child to
engage in unlawful sexual contact after having solicited the
child's parent, legal guardian, or custodian or a person
believed to be such. Thus, the soliciting offense [under
section 847.0135(3)(b)] does not contain an element that is
not found in the traveling offense....
...t
double jeopardy. Id.
-2-
134 So. 3d 1138, 1141 (Fla. 2d DCA), review granted,
147 So. 3d 527 (Fla. 2014). This
analysis applies equally to the charges in question here, soliciting under section
847.0135(3)(a) and traveling under section
847.0135(4)(a), which run parallel to the
statutory sections addressed in Shelley.1 Thus, "the convictions for both soliciting and
1
The statutory sections appear in their entirety as follows:
(3...
...described in chapter 794, chapter 800, or chapter 827, or to
otherwise engage in any sexual conduct,
commits a felony of the second degree, punishable as
provided in s.
775.082, s.
775.083, or s.
775.084.
§
847.0135.
-4-
CopyPublished | District Court of Appeal of Florida
a minor for sexual conduct in violation of section
847.0135(3), Florida Statutes; lewd or lascivious conduct
CopyPublished | Florida 2nd District Court of Appeal
count I, traveling to meet a minor, under section
847.0135(4)(a), Florida Statutes (2020); count II,
CopyPublished | Florida 2nd District Court of Appeal | 2016 Fla. App. LEXIS 1175, 2016 WL 358866
...and that the communications turned sexual in nature. Rodriguez was apprehended on
the same day when he traveled to a retail pharmacy to meet "Kaitlyn." The State
charged Rodriguez with traveling to seduce/solicit/entice a child to commit a sex act, §
847.0135(4), Fla. Stat. (2012), use of a computer to seduce/solicit a child to commit a
sex act, §
847.0135(3), and attempted lewd or lascivious battery, §
800.04(4)(a), Fla.
Stat....
CopyPublished | District Court of Appeal of Florida
child to commit a sex act in violation of section
847.0135(3)(a), Florida Statutes (2015). He was sentenced
CopyPublished | Florida 2nd District Court of Appeal
traveling to meet a minor in violation of section
847.0135(4)(a), Florida Statutes (2012); (2) unlawful
CopyPublished | Florida 4th District Court of Appeal | 2016 Fla. App. LEXIS 711, 2016 WL 231379
...He
argues, among other things, that one of his convictions is barred by
double jeopardy principles. We agree, and as to count one, reverse the
conviction and sentence.
The state charged the appellant in a four-count information. For
count one, the appellant was charged with a violation of section
847.0135(3), Florida Statutes (2012), which provides:
(3) Certain uses of computer services or devices
prohibited.--Any person who knowingly uses a computer
online service, Internet service, local bulletin board service,...
...794, chapter 800, or chapter 827, or to otherwise engage in
any unlawful sexual conduct with a child or with another
person believed by the person to be a child; . . .
....
commits a felony of the third degree . . . .
§ 847.0135(3)(a), Fla. Stat. (2012).
For count two, the state charged the appellant with a violation of
section 847.0135(4), which provides:
(4) Traveling to meet a minor.--Any person who travels any
distance either within this state, to this state, or from this
state by any means, who attempts to do so, or who causes
another t...
...double jeopardy principles prohibit separate convictions and
punishments based upon the same conduct.” Id. at 918 (quoting M.P. v.
State,
682 So. 2d 79, 81 (Fla. 1996)).
The state claims that the legislature authorized separate punishments
for violations of subsections
847.0135(3) and (4), but the Florida
3
Supreme Court recently rejected that argument. See id. at 918-19.
Although Shelley involved violations of sections
847.0135(3)(b) and (4)(b),
and this case involves violations of sections (3)(a) and (4)(a), this does not
impact the court’s finding in Shelley that the statute does not contain an
explicit statement of intent for separate punishments.2
2 Section
847.0135(3)(b), Florida Statutes (2012), provides as follows:
(3) Certain uses of computer services or devices prohibited.--
Any person who knowingly uses a computer online service,
Internet service, local bulletin...
...a child to consent to
the participation of such child in any act described in chapter
794, chapter 800, or chapter 827, or to otherwise engage in any
sexual conduct,
commits a felony of the third degree . . . .
Section 847.0135(4)(b), Florida Statutes (2012), provides as follows:
(4) Traveling to meet a minor.--Any person who travels any
distance either within this state, to this state, or from this state by
any means, who attemp...
...Offenses which are lesser offenses the statutory elements
of which are subsumed by the greater offense.
§
775.021(4), Fla. Stat. (2012).
In Hartley v. State,
129 So. 3d 486 (Fla. 4th DCA 2014), the convicted
defendant also argued that his convictions for violations of sections
847.0135(3)(a) and (4)(a) violated double jeopardy. This court broke
down the elements of each offense and found that soliciting a minor in
violation of section
847.0135(3)(a) is subsumed by the offense of traveling
to meet a minor in violation of section
847.0135(4)(a):
Traveling to meet a minor includes the following four
elements: (1) knowingly traveling within this state, (2) for the
purpose of engaging in any illegal act (in violation of chapters
794, 800, or 827,...
...statutory elements of traveling after solicitation, the offenses are the
same for purposes of the Blockburger same-elements test codified in
section
775.021(4), Florida Statutes.”
176 So. 3d at 919. The fact that
the court in Shelley was addressing sections
847.0135(3)(b) and (4)(b) is
of no significance....
...subsumed by the
elements of section (4)(a) and thus the dual convictions violate double
jeopardy. See Meythaler v. State,
175 So. 3d 918, 920 (Fla. 2d DCA
2015) (finding that the analysis in Shelley applied to convictions for
violations of sections
847.0135(3)(a) and (4)(a)).
The state attempts to evade the Blockburger analysis by arguing that
the solicitation and traveling offenses were separated in time....
CopyPublished | Supreme Court of Florida
[violating Fla. Stat.
800.04] [violating Fla. Stat.
847.0135(5)]. 2. As part of that sentencing
CopyPublished | Florida 2nd District Court of Appeal
for use of a computer to seduce a minor, see §
847.0135(3), Fla. Stat. (2006), and attempted lewd or
CopyPublished | District Court of Appeal of Florida
exhibition, a second-degree felony under section
847.0135(5)(b), Florida Statutes (2013), following
CopyPublished | District Court of Appeal of Florida
sexual conduct using a computer in violation of section
847.0135(3)(b), Florida Statutes (2019). After
CopyPublished | Florida 2nd District Court of Appeal | 2015 WL 9487556
...Tallahassee, and Helene S. Parnes,
Assistant Attorney General, Tampa, for
Appellee.
ALTENBERND, Judge.
Lambert F. Agama appeals his judgments and sentences for traveling to
seduce, solicit, or entice a child to commit a sex act in violation of section
847.0135(4)(a), Florida Statutes (2012), and using a computer to seduce, solicit, or
entice a child to commit a sex act in violation of section 847.0135(3)(a)....
CopyPublished | Florida 5th District Court of Appeal
William Kuckuck was convicted of violating section
847.0135(3)(b), Florida Statutes (2016), by knowingly
CopyPublished | Court of Appeals for the Eleventh Circuit
traveling to meet a minor in violation of Fla. Stat. §
847.0135(4)(a); and (2) soliciting a child for USCA11
CopyPublished | District Court of Appeal of Florida
using a computer online service, contrary to section
847.0135(4)(a), Florida Statutes (2013) (Count I);
CopyPublished | District Court of Appeal of Florida
commit sex acts on a child, a violation of section
847.0135(3)(b), Florida Statutes (2011), and (2) traveling
CopyPublished | District Court of Appeal of Florida
February 14, 2013," in violation of section
847.0135(3)(a), Florida Statutes (2012), and traveling
CopyPublished | Florida 1st District Court of Appeal | 2017 WL 3428277
to engage in sexual conduct, contrary to section
847.0135(4)(a), Florida Statutes (2012) (Count I),
CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 221, 2015 Fla. LEXIS 927, 2015 WL 1932145
...e these
-2-
instructions. Both instructions, as proposed, include language under the “Lesser
Included Offenses” portion of the instructions that the courts may consider the
crime of Solicitation under section 847.0135(3)(a) or (3)(b), Florida Statutes
(2014), respectively, to be a necessary lesser-included offense of Traveling under
section 847.0135(4)(a) or (4)(b), respectively....
...2d 692], and amended in 2008
[
982 So. 2d 1160], and 2013 [
122 So. 3d 263], and 2015.
11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED BY THE
DEFENDANT TO BE A CHILD] FOR UNLAWFUL SEXUAL CONDUCT
USING COMPUTER SERVICES OR DEVICES
§
847.0135(3)(a), Fla....
...This instruction was adopted in 2009 [
6 So. 3d 574] and amended in 2013
[
122 So. 3d 263] and 2015.
11.17(b) SOLICITING A PARENT, LEGAL GUARDIAN, OR CUSTODIAN
OF A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING
COMPUTER SERVICES OR DEVICES
§
847.0135(3)(b), Fla....
CopyPublished | District Court of Appeal of Florida
to meet a minor after use of a computer, see §
847.0135(4), Fla. Stat. (2012), and unlawful use of a
CopyPublished | District Court of Appeal of Florida
Information, the State charged Baker with violating section
847.0135(4)(b), the travel after solicitation charge
CopyPublished | District Court of Appeal of Florida
seduce, solicit, lure, or entice a child under section
847.0135(3)(a), Florida Statutes (2017), and that this
