Florida/Georgia Personal Injury & Workers Compensation

...clinical detachment, but with a common sense view to the realities of normal life.”). Officer Mayo could reasonably have believed that the sexually explicit photographs of what he observed to be very young girls were evidence of a crime – either state, see Fla. Stat. Ann. § 847.0137 (West 2006) (criminalizing transmission of child pornography as a third degree felony), or federal – without knowing whether the legal technicalities of those crimes had, in fact, been satisfied. Second, Smith contends that b...

...No appearance for appellee. FORST, J. The State timely appeals the order vacating in part the conviction of 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)....

...25, 2015), we held that the use of a file-sharing program designed to allow one-on-one access to stored data as a way to share child pornography constituted a “transmission” under the same Florida statute sections at issue in the present case, sections 847.0137(2) and (3)....

...We acknowledge that the plain meaning of the two statutes at issue here is ambiguous as to the Legislature’s intent for the applicable unit of 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). Section 847.0137(1)(b), defines “transmit” as “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 distortion”) is set forth in ANTONIN SCALIA & BRYAN A....

...s from an accessible folder in Appellant’s computer via the internet. Based on the retrieval of these images, Appellant was charged with and convicted of one count of “transmitting” child pornography using an electronic device, in violation of section 847.0137(2)....

...For the reasons that follow, we hold that the use of a file- sharing program, where the originator affirmatively grants the receiver access to child pornography placed by the originator in files accessible through the file- sharing program, constitutes the transmission of child pornography under the plain meaning of section 847.0137, Florida Statutes (2010)....

...ng 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)....

...at 95 (footnotes omitted). After his conviction and sentence, the Fifth District decided Biller. Smith then filed a motion for postconviction relief and claimed in relevant part that because Biller found that transmission by method of file-sharing was not a transmission of child pornography within the meaning of section 847.0137, he was denied due process by being convicted of a nonexistent crime....

...The Fourth District explained that Biller erred in focusing solely on the word “send” in construing the statute because “the statutory definition of ‘transmit’ requires an act of ‘sending and causing to be delivered.’ ” Id. at 96-97 (quoting § 847.0137(1)(b), Fla....

...the construction that a person must himself deliver the files to another person, such as by attaching them to an email. Id. at 97. The Fourth District further concluded that the Legislature intended the definition of “transmit” in section 847.0137(1)(b) to be broader than merely purposely sending images to an individual by comparing the definition of “transmit” in section 847.0137(1)(b) with the definition of “transmit” in section 847.0138(1)(b).2 Id. Thus, the Fourth District “s[aw] no need to apply the rule of lenity to section 847.0137” and certified conflict with Biller....

...behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Borden v. E.-Eur. Ins. Co., 921 So. 2d 587, 595 (Fla. 2006) (quoting Daniels v. Fla. 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. 775.083, or s. 775.084. § 847.0137(2), Fla....

...via electronic mail.” § 847.0138(1)(b), Fla. Stat (2010). -5-  more other persons or places over or through any medium, including the Internet, by use of any electronic equipment or device. § 847.0137(1)(b), Fla....

...Accordingly, we hold that the use of a file-sharing program, where the originator affirmatively grants the receiver access to the originator’s child pornography files, constitutes the transmission of child pornography under the plain meaning of section 847.0137. Biller erred by applying the rule of lenity to section 847.0137 based on an unreasonably cramped reading of the statute. Smith correctly declined to apply the rule of lenity to section 847.0137. CONCLUSION Accordingly, we approve the decision of the Fourth District and disapprove Biller. It is so ordered. LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and P...

...No appearance for appellee. FORST, J. The State timely appeals the order vacating in part the conviction of 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)....

...25, 2015), we held that the use of a file-sharing program designed to allow one-on-one access to stored data as a way to share child pornography constituted a “transmission” under the same Florida statute sections at issue in the present case, sections 847.0137(2) and (3)....

...We acknowledge that the plain meaning of the two statutes at issue here is ambiguous as to the Legislature’s intent for the applicable unit of 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). Section 847.0137(1)(b), defines “transmit” as 1 An even more restrictive view of “the use of legislative history to find ‘purpose’ in a statute” (arguing that said use “provides great potential for manipulation and distortion”) is set forth in ANTONIN SCALIA & BRYAN A....

...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. § 847.0137(1)(a)001(8), Fla....

...5th DCA 2013), the court held that use of a file-sharing program does not constitute transmission within the meaning of the statute. We disagree. Smith pleaded guilty in August 2011, to twenty counts of transmitting child pornography to an undercover officer via the internet. See § 847.0137, Fla....

...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)....

...part that, because Biller found that transmission by method of file-sharing was not a transmission within the meaning of the statute, he was denied due process by being convicted of a non-existent crime. The trial court denied relief. We affirm, disagreeing with Biller. 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 1 The probable cause affidavit explains that the...

...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. 775.082, s. 775.083, or s. 775.084. § 847.0137(2), Fla....

...[T]he 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. § 847.0137(1)(b), Fla....

...receiver access to his files, who can then download the pornographic images over the internet through an electronic device, constitutes “transmission” of pornography. The statutory definition of “transmit” requires an act of “sending and causing to be delivered.” § 847.0137(1)(b), Fla....

...The use of the phrase “cause to be delivered” in the statute negates the construction that a person must himself deliver the files to another person, such as by attaching them to an email. That the Legislature intended the definition of “transmit” in section 847.0137(1)(b), Florida Statutes (2010), to be broader than merely purposely sending images to an individual can be gleaned from a 4 comparison of the definition of “transmit” in section 847.0138, Florida Statutes....

...8(1)(b), Fla. Stat. (2010). Thus, where the Legislature wanted to restrict “transmission” to the act of sending something directly to an individual by e-mail, it knew how to define the term narrowly. It did not create such a narrow definition in section 847.0137(1)(b), Florida Statutes. Consequently, we see no need to apply the rule of lenity to section 847.0137....

...its control by another. Joint possession. Give if applicable. Possession of a [place] [structure] [trailer] [conveyance] may be sole or joint, that is, two or more persons may possess a [place] [structure] [trailer] [conveyance]. § 847.0137(1)(a), Fla....

...Comment This instruction was adopted in 2009 [6 So. 3d 574] and amended in 2013 [122 So. 3d 263] and 2015. 11.20 TRANSMISSION OF CHILD PORNOGRAPHY BY ELECTRONIC DEVICE OR EQUIPMENT § 847.0137(2) and (3), Fla. Stat. To prove the crime of Transmission of Child Pornography by Electronic Device or Equipment, the State must prove the following two elements beyond a reasonable doubt: Give 1a or 1b as applicable. § 847.0137(2), Fla....

...(Defendant), when not in the State of Florida, transmitted child pornography to any person who was in the State of Florida. 2. (Defendant) knew or reasonably should have known that [he] [she] transmitted child pornography. Definitions. Give as applicable. § 847.0137(1)(b), Fla....

...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....

...Virtual School.” “Student” means a person younger than 18 years of age who is enrolled at a school. Lesser Included Offenses TRANSMISSION OF CHILD PORNOGRAPHY BY ELECTRONIC DEVICE OR EQUIPMENT - 847.0137(2) and (3) CATEGORY ONE CATEGORY TWO FLA....

...inors; and (c) Taken as a whole, is without serious literary, artistic, political, 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....