CopyCited 18 times | Published | Supreme Court of Florida | 2006 WL 3313741
...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)....
...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. See Simmons v. State,
886 So.2d 399 (Fla. 1st DCA 2004). [3] Simmons challenged section
847.0138 as violating the First and Fourteenth Amendments of the United States Constitution and article I, sections 4 and 9 of the Florida Constitution. Simmons did not argue that the government lacks a compelling interest in protecting the physical and psychological well-being of children, but instead argued that section
847.0138 is overbroad because it "limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech." Id....
...2329,
138 L.Ed.2d 874 (1997), the court concluded that the federal law differed from Florida's statute because the federal law contained no provision limiting prohibited transmissions to those sent "to a specific individual known by the defendant to be a minor via electronic mail." Simmons,
886 So.2d at 405 (quoting §
847.0138(1)(b))....
...e, 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....
...Simmons sought review by this Court on the basis that the First District's decision expressly declares a state statute to be valid. We granted review and heard oral argument from the parties on the constitutionality of both statutes. 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....
...requirement that a legislature establish minimal guidelines to govern law enforcement") (internal quotation marks omitted). Further, the need for definiteness is even greater when the ordinance imposes criminal penalties on individual behavior or when it implicates constitutionally protected rights. Section 847.0138, Florida Statutes (2002), provides: (1) For purposes of this section: (a) "Known by the defendant to be a minor" means that the defendant had actual knowledge or believed that the recipient of the communication was a minor....
...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. Stat. (2002). This statutory definition of "harmful to minors" both narrows the scope of section
847.0138 and makes it more precise. The scope of section
847.0138 is further narrowed by the definition of "transmits," which requires that the harmful materials be "sen[t] to a specific individual known by the defendant to be a minor via electronic mail." §
847.0138(1)(b), Fla....
...ed by Senate Bill 144, 29 Fla. St. U.L.Rev. 1109, 1117 (2002). Additionally, the statute incorporates a knowledge element, requiring the sender to actually know or believe that the recipient of the communication is a minor who is located in Florida. § 847.0138(1)(a), (2)-(3). Simmons argues that section 847.0138 suffers the same constitutional infirmities as the Communications Decency Act of 1996(CDA), which the United States Supreme Court struck down in Reno v....
...lective restrictions on speech at the receiving end, not universal restrictions at the source." Id. at 666-67,
124 S.Ct. 2783. We find that Florida's Internet transmission statute differs from the CDA and COPA in several significant respects. First, section
847.0138 does not apply broadly to all materials posted on the Internet or sent via electronic mail....
...be a minor. Thus, the concerns expressed in Reno about the CDA's application to all communications on the Internet are not implicated by the Florida statute. Nor does the Florida statute cover web postings directed at the public as COPA did. Second, section 847.0138 defines what constitutes materials "harmful to minors" with reference to the three-prong Miller standard, unlike the CDA, which did not define the vague terms "indecent" and "patently offensive" and incorporated only one prong of the Miller test....
...15, 24,
93 S.Ct. 2607,
37 L.Ed.2d 419 (1973). So does Florida's statute. See §
847.001(6)(c), Fla. Stat. (2002) (providing that material that is "harmful to minors" is "without serious literary, artistic, political, or scientific value for minors"). Finally, section
847.0138 restricts its applicability to electronic mail, thereby treating portions of the Internet differently as the Supreme Court cited with approval in Reno.
521 U.S. at 865, 868, 877,
117 S.Ct. 2329. Because section
847.0138 only applies to electronic mail sent to a specific individual that the defendant actually knows is a minor or believes is a minor, and not to messages sent to a group that is "likely" to include a minor, we agree with the First Distr...
...See Chin Pann, The Dormant Commerce *328 Clause and State Regulation of the Internet: Are Laws Protecting Minors from Sexual Predators Constitutionally Different Than Those Protecting Minors from Sexually Explicit Materials?, 2005 Duke Law & Tech. Rev. 8, ¶ 1 (2005). Some of the dissemination statutes are similar to section 847.0138 in prohibiting the transmission of sexually oriented materials to minors via the Internet....
...nows or believes to be a minor and only applies to material that meets the three-prong definition of being "harmful to minors." In light of these cases and the First Amendment principles discussed above, we reach the following conclusions *329 about section 847.0138....
...Furthermore, the Florida transmission statute provides that the sender who transmits the e-mail containing material that is harmful to minors must *333 either know or believe that the specific individual who is the recipient of the e-mail is a minor located in Florida. § 847.0138(3)....
...This statutory requirement narrows the reach of the Florida statute and negates the geographic location problems related to the state dissemination statutes invalidated by the federal courts. In light of these significant distinctions, we conclude that section 847.0138 does not violate the Dormant Commerce Clause....
...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....
...Stat. (2002). Statutes such as this are commonly referred to as "luring" statutes. [2] This statute prohibits the transmission to a minor of "an image, information, or data that is harmful to minors" by means of an electronic device or equipment. See § 847.0138(2), Fla....
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....
...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. He moved to dismiss count two on the grounds that section
847.0138 violates the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution and imposes an unconstitutional 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....
...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). I. Appellant challenges section
847.0138 on the basis that it violates the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution. Section
847.0138 states: (1) For purposes of this section: (a) "Known by the defendant to be a minor" means that the defendant had actual knowledge or believed that the recipient of the communication was a minor....
...nsive 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. Appellant contends that section 847.0138 is not narrowly tailored to serve a compelling state interest, is vague, and is overbroad. We disagree and, therefore, affirm. Appellant argues that because section 847.0138 restricts expression protected by the First Amendment based on its content, it is presumptively invalid and can only be upheld if it survives strict scrutiny, citing United States v....
...ted by the First Amendment. [2] "Sexual expression which is *403 indecent but not obscene is protected by the First Amendment." Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115, 126,
109 S.Ct. 2829,
106 L.Ed.2d 93 (1989). Accordingly, because section
847.0138 "regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest....
...on of the lewd or lascivious statute was "outlawing speech" and should be more narrowly construed to not apply to speech so it would not be unconstitutional). Appellant does not argue that the government lacks a compelling interest, but asserts that section 847.0138 is not sufficiently tailored to promote such an interest. Appellant argues that section 847.0138 is overbroad because it "limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech." We disagree because section 847.0138 only pertains to harmful images, information, or data that is sent to a specific individual known by the defendant to be minor, "via electronic mail." See §§ 847.0138(1)(b), 847.0138(3), Fla. Stat. Because the defendant must have actual knowledge or believe that the recipient of the communication was a minor, see § 847.0138(1)(a), Fla....
...[4] An adult cannot convey harmful material to the minor with other adults watching with constitutional protection just because he can get other adults in the room to watch his harmful, indecent behavior specifically directed to the minor. We decline to follow such twisted constitutional analysis. Section 847.0138 does not prohibit information posted on websites directed to the public. The prohibited communication from the adult to the minor must be sent by "electronic mail." See § 847.0138(1)(b), Fla....
...ctionary 963 (7th ed.1999); see also Merriam-Webster's Collegiate Dictionary 701 (10th ed.1998)(defining "mail" as "messages sent electronically to an individual (as through a computer system))." The electronic mail must be "transmitted," defined in section 847.0138(1)(b) as "to send to a specific individual known by the defendant to be a minor via electronic mail." We agree with the State that for the electronic mail to be sent to a specific individual, it must be specifically addressed to the...
...sage to more than one recipient, knowing that at least one of the specific persons receiving the message is a minor.'" Id. at 876 n. 42,
117 S.Ct. 2329. We agree with the State that Florida's law differs from the federal law at issue in Reno because section
847.0138 only applies to electronic mail sent to a specific individual known to be a minor, not to a group that is "likely" to include a minor. Section
847.0138(1)(b) requires a transmission, which means sending "to a specific individual known by the defendant to be a minor via electronic mail." Significantly, the Communications Decency Act of 1996 at issue in Reno has no similar provision. [5] Adults may address communications directly to other adults, and to a large group, without violating section
847.0138....
...The Florida statute is more narrowly tailored than the Communications Decency Act at issue in Reno. The level of discourse reaching a mailbox may be limited to that which would be suitable for a sandbox if the mail is knowingly sent to a mailbox that is in the sandbox. That is what section 847.0138 does....
...The "harmful material" is to be reviewed "as a whole," and the court ruled that because the Child Online Protection Act "mandates evaluation of an exhibit on the Internet in isolation, rather than in context" of the work as a whole, it is not narrowly tailored. Id. Because section 847.0138 is narrowly tailored by limiting the harmful material to those sent to minors by electronic mail, it is appropriate to evaluate the communication without considering the rest of the Internet. For example, if excerpts (that taken as a whole are harmful to minors) of a video posted on the Internet (that taken as a whole is not harmful to minors) are cut from the whole video and sent to a minor, then the transmission violates section 847.0138....
...One who sends harmful materials by electronic mail to known minors cannot be shielded by taking materials out of context and sending only those materials without restriction because they are extracted from some 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....
...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....
...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). However, I dissent from the opinion relating to section
847.0138, Florida Statutes (2002). I dissent because contrary to the majority opinion, section
847.0138 cannot withstand strict scrutiny, as it is not narrowly tailored to promote a compelling governmental interest, is void for vagueness, and violates the overbreadth principle [8] under the First and Fourteenth Amendments to the United States Constitution, and article I, sections 4 and 9, of the Florida Constitution. Also, these deficiencies cause section
847.0138 impermissibly to transgress the Commerce Clause. In my judgment, a review of the appropriate authorities, including those relied upon by the majority, supports a decision that section
847.0138 is facially unconstitutional. Strict Scrutiny The majority recognizes that the prohibited expression covered by section
847.0138 is non-obscene and that the prohibition is content-based....
..."Strict scrutiny requires that a statute: (1) serve a compelling interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest." Sable Communications,
492 U.S. at 126,
109 S.Ct. 2829. The majority finds that section
847.0138 is narrowly tailored because "electronic mail" is limited to "only messages sent to a specific individual known to be a minor." That statement is true, but it provides an insufficient basis for finding section *408
847.0138 constitutional as narrowly tailored....
...At pages 3, 16, and 25, respectively, Appellee states: "Similarly, the overbreadth concerns expressed in ACLU v. Ashcroft,
322 F.3d 240 (3rd Cir.2003) in regard to the definition of `harmful to minor' are not applicable to this statute that regulates personal, one-on-one e-mail communication"; "In comparison, §
847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions"; and " §
847.0138, Fla....
..." Thus, the concession was made, and the majority's refusal to acknowledge its existence does not alter this fact. Furthermore, during oral argument this point was addressed with counsel for Appellee, who was asked in substance: "Unless we interpret section 847.0138's definition of `electronic mail' to be limited to personal one-on-one e-mail, is the statute constitutional?" to which he replied "no." Notwithstanding this concession, the majority fails to include such interpretation in its opinion yet finds, what Appellee will not defend, that section 847.0138 is constitutional....
...This is a high-profile case, and Appellee's concession necessarily included a determination by the Attorney General's staff, after considerable consideration, that the law is sufficiently clear on this issue for counsel to anticipate that this court would not find § 847.0138 constitutional unless it was limited to one-on-one e-mail....
...Moreover, I am fortified in my belief by the fact that Justice Stevens has, contrary to the majority view, recognized a "heckler veto" as a real threat to free speech in similar circumstances. Reno v. ACLU,
521 U.S. at 866,
117 S.Ct. 2329. Notwithstanding the foregoing, the definition of a "minor" in section
847.0138 is not narrowly tailored. A "minor" is defined in section
847.0138 as anyone under 18 years of age. In the context of this statute, such a definition is woefully inadequate. For example: under section
847.0138, a message to a five-year-old is treated the same as a message to a 17-year-old....
...In my judgment, to find such a statutory range to be reasonable and clear is illogical on its face. Too broad an intellectual and emotional disparity exists between a five-year-old and a 17-year-old to expect a reasonable person to compose a lawful message to a 17-year-old that might not transgress section 847.0138 as to a five-year-old. The statute would reduce message content to the lowest common denominator, that of the youngest minor, and thereby "chill" free speech in an unconstitutional manner. An examination of specific subjects highlights the "draconian impact" of section 847.0138 and its constitutional invalidity. For example, the following could be labeled a violation under section 847.0138, depending on the personal view of individual prosecutors: minors could not lawfully be afforded a basic sex education illustration of how to affix a condom to avoid HIV and venereal disease, and illustrations used for legitimate scientific or educational purposes could be a violation....
...ssion without regard to conformance with majority standards of "public morality" or "acceptable expression" that prevail from time to time in our society. Moreover, the constitutional infirmities in defining a "minor" as one under 18 years of age in section
847.0138 have been addressed by other courts in similar situations and determined contrary to the majority opinion. See Ashcroft,
322 F.3d at 240. *410 In Ashcroft the court, in finding substantially the same definition of a minor as utilized in section
847.0138 unconstitutional as not narrowly tailored, stated: COPA defines the term minor as "any person under 17 [seventeen] years of age." Id....
...I well realize that enforcement in such situations is subject to the discretion of the particular enforcer, but that is the very reason for the "narrowly tailored" doctrine. People are entitled to exercise freedom of expression in an expansive manner, and section 847.0138 does not remotely meet that requirement. To the contrary, for the reasons stated, section 847.0138 creates a legal dilemma that is impossible to circumvent in perfectly legitimate situations other than by the "chilling" of permissible expression. The majority discounts the precedential impact of Ashcroft on the basis that the statute there did not contain a provision, as does section 847.0138, limiting a transmission "to a specific individual known by the defendant to be a minor via electronic mail." With all deference to my colleagues, in my judgment this provides no logical basis for finding Ashcroft "not applicable." T...
...The method of transmission of messages to different age groups forming a minority had no bearing on that court's final determination of unconstitutionality for failure to narrowly tailor the definition of "minor." Accordingly, Ashcroft is applicable here and compels a ruling that section
847.0138 is unconstitutional. The majority bases its determination that the definition of "minor" in section
847.0138 is constitutionally sufficient by reliance on Hayne,
2002 WL 470853....
...However, a reading of Hayne reveals that the majority, while adopting the court's reasoning that a definition of "harmful matter" as to "minors" is constitutional, ignores other parts of the California statute that justify that court's approach but have no relevancy to section 847.0138....
...son or of a minor," and "with intent or for the purpose of seducing a minor." The requirement of intent to sexually arouse and gratify and to seduce a minor provides a common threat of harm throughout minority and supports state action. In contrast, section 847.0138 makes the transmission of "material harmful to minors" an offense based solely on the material's content without any requirement of intent to inflame a minor's passion for the purpose of seduction. Clearly, for these reasons Hayne provides no support for the majority's reliance. Although the foregoing reasons should preclude the majority's use of Hayne as an authority, there are more provisions of the California Code, omitted from section 847.0138, and ignored by the majority, that support a constitutional determination there....
...988-990, 99 Cal.Rptr.2d 184). Hayne, 2002 WL at *7. From the above language I conclude that the statute's intent provisions and affirmative defenses are essential to the court's finding that section 282.2 is narrowly tailored. Accordingly, because section 847.0138 contains no similar provisions, in my judgment it is implausible for the majority to advance Hayne as a basis for a finding that section 847.0138 is constitutional....
...Can it be seriously argued that the sexuality of a six-year old is not radically different from a 17-year old? If not, I would not publish this dissent that in large part is predicated on the legislature's failure to consider such obvious differences of minority age levels. Overbreadth Section 847.0138 is unconstitutional because it violates the overbreadth doctrine....
...*413 That doctrine precludes an abridgement of unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. See Ashcroft v. Free Speech Coalition,
535 U.S. 234, 255,
122 S.Ct. 1389,
152 L.Ed.2d 403 (2002). For the reasons stated under my strict scrutiny analysis, section
847.0138 is unconstitutional as too broad. Clearly, the legislature's failure to define "minor" more precisely and to limit section
847.0138's scope to one-on-one e-mail, and its further failure to exempt messages to married persons under 18 years of age, e.g., when a parent transmits "harmful material" to aid sex education, or transmissions in aid of legitimate scientific or educational purposes, violate the overbreadth doctrine, and section
847.0138 is, accordingly, unconstitutional. Vagueness Also, section
847.0138 is too vague to pass constitutional muster....
...As a result of this vagueness, Web publishers will be deterred from engaging in a wide range of constitutionally protected speech. The chilling effect caused by this vagueness offends the Constitution. Ashcroft,
322 F.3d at 268 n. 37. Clearly, that rationale applies to section
847.0138, and it constitutionally fails on that premise, if no other. Commerce Clause Finally, in my judgment section
847.0138 impermissibly burdens interstate commerce and is, accordingly, invalid....
...on interstate activities. PSINet, Inc v. Chapman,
362 F.3d 227, 255 (4th Cir.2004) (Niemeyer, J., dissenting), quoting Pike v. Bruce Church, Inc.,
397 U.S. 137, 142,
90 S.Ct. 844,
25 L.Ed.2d 174 (1970) (emphasis added). In my judgment the impact of section
847.0138 on users of the Web would unreasonably burden interstate commerce. It would be impossible for out-of-state Web users to communicate about science, sex education, or medicine, and marital subjects with a married minor without fear of violation of section
847.0138. The only plausible alternative is for potential Web *414 users to refrain from its use in such important areas. This is too severe a burden on the flow of expression in interstate commerce in view of the available alternatives that would lessen section
847.0138's severe impact. Accordingly, in my judgment, section
847.0138 will unduly burden interstate commerce and is invalid....
...at 160. Conclusion As always, when a statute is enacted for the protection of minors, one is hesitant to determine the effort to be unconstitutional. However, high motive does not equal constitutional compliance. The legislature in its drafting of section 847.0138 has produced an unbalanced proscription that violates too many constitutional guarantees....
...ntent of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. In my judgment, section
847.0138, while well-intended, fails to comply with this constitutional concept and is tantamount to censorship. 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....
...integrity of the process, benefitting public participation in political debate. Similarly, strict scrutiny may not apply in the instant case because, by eliminating the potential chilling effects of unchecked harm directed to minors on the Internet, section 847.0138 protects the integrity of the Internet and minors' use of it as a medium for free speech, thereby guarding minors' free speech rights....
...concurring and dissenting) (disagreeing with the majority opinion for allowing restrictions on speech criticizing the government while it has "sternly disapproved of restrictions" on virtual child pornography). However, we need not decide this issue because we conclude that section 847.0138 is constitutional even if strict scrutiny applies....
...ecifically sent to known minors. [5] Likewise, the Child Online Protection Act, at issue in ACLU v. Ashcroft,
322 F.3d 240 (3rd Cir.2003), aff'd and remanded, ___ U.S. ___,
124 S.Ct. 2783,
159 L.Ed.2d 690 (2004), does not have a provision similar to section
847.0138....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2012 WL 280238, 2012 Fla. App. LEXIS 1324
...Geraghty, Assistant Public Defender, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. McIntire, Assistant Attorney General, West Palm Beach, for appellee. CONNER, J. Jarrod Richard Allen appeals the denial of his motion to dismiss eighteen counts of violating section 847.0138(2), Florida Statutes (2008). He argues that he was improperly charged with twenty counts of transmitting images harmful to minors when he sent only two instant messages to an undercover detective. Allen argues on appeal that section 847.0138(2) allows for only one unit of prosecution when multiple images are attached to one instant message transmission....
...erage females. The detectives then executed a search warrant and obtained several computers from Allen's residence. Allen was arrested and charged with twenty counts of transmission of material harmful to a minor by *120 electronics, in violation of section 847.0138(2), by sending two instant-message transmissions with ten images attached to each....
...The trial judge sentenced Allen to 180 months in prison, followed by fifteen years of probation. The judge based the sentence on the number of counts of conviction. On appeal, Allen pursues his argument that his motion to dismiss eighteen of the counts should have been granted under his interpretation of section 847.0138(2)....
...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. . . . §
847.0138(2), Fla....
...r of attached photographs. The State maintains that each of the twenty pictures constitutes a separate violation or count. The statute defines "transmit" as "to send to a specific individual known by the defendant to be a minor via electronic mail." § 847.0138(1)(b), Fla. Stat. The statute also clarifies that "[t]he provisions of this section do not apply to subscription-based transmissions such as list servers." § 847.0138, Fla....
...nizes "electronic mail" to be "both email and electronic mail sent by instant messaging." Simmons v. State,
944 So.2d 317, 325 & n. 7 (Fla.2006). [1] Therefore, the instant messages transmitted by Allen to the undercover detective are encompassed by section
847.0138(1)(b)....
...This indicates that the photographs were separate pictures attached to the message, although they were sent in one message. The photographs were not viewable with the message and had to be opened one by one, making them individual photographs amenable to being individual counts under section 847.0138. The statute states that the punishable conduct is transmitting " an image . . . that is harmful to minors," which plainly means each individual photograph. [2] § 847.0138(2), Fla....
...[3] Subsequent to our decision in Schmitt, the Legislature amended section
827.071 to punish possession of "a" photograph that depicted sexual conduct by a child. The Legislature was aware of the application of the "a/any" test by Florida courts when it enacted section
847.0138 in 2001. It seems clear the Legislature intended separate prosecutions for *122 multiple images transmitted in one instant message when referencing "an image" (instead of "any image") when it enacted section
847.0138....
...eopardy argument is unavailing. "The Fifth Amendment guarantee against double jeopardy protects a defendant from, among other things, multiple punishments for the same offense." State v. Sholl,
18 So.3d 1158, 1162 (Fla. 1st DCA 2009). Because, under section
847.0138(2), each attached and transmitted photograph is a separate, punishable violation, there is no double jeopardy.
CopyPublished | Florida 4th District Court of Appeal | 2011 Fla. App. LEXIS 5203, 2011 WL 1376506
GERBER, J. A jury convicted the defendant of transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2007)....
...The defendant testified at trial consistent with his interview. He added that he received e-mail system replies stating that his text message and his e-mail containing his photos were undeliverable. The parties agreed to a jury instruction tracking section 847.0138....
...The statute provides that 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. (2007). The statute defines “transmit” as “to send to a specific individual known by the defendant to be a minor via electronic mail.” §
847.0138(l)(b), Fla....
...According to the defendant, the clear implication from the jury’s question “[I]f it’s sent and not received is it transmission^]” is that the jury believed the victim did not receive his photos via electronic mail. The defendant argues that the jury essentially was asking the trial court if- “send,” which section 847.0138 does not define, means- that the images or information must be both sent and received....
...In short, while the defendant’s presumption may be true, we will not read jurors’ minds to resolve today’s issue given the conflicting evidence. Second, we disagree with the defendant’s attempt to focus on only the term “send” rather than considering section 847.0138 as a whole....
...whole.”). The statute punishes 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.” §
847.0138(2), Fla....
...on was received. Applied here, the defendant believed he was transmitting his photos to a specific individual known by him to be a minor. The fact that the defendant believed he was doing so is the evil which the legislature seeks to correct through section 847.0138....
...4th DCA 2005) (to discern legislative intent requires consideration of, among other things, “the evil to be corrected”). ' Third, even if we were to focus on only the term “send,” we do not necessarily agree with the two definitions of “send” which the defendant has asked us to apply to section 847.0138....
...ion which the defendant has asked us to apply here. See www.merriam-webster.com/dictionary/send (viewed Mar. 28, 2011). However, another definition of “send” from that dictionary is simply “transmit,” which, of course, is the very word which section 847.0138(l)(b) defines with the word “send.” Yet another applicable definition of “send” from that dictionary is “to dispatch by a means of communication.” Neither of these definitions would appear to require that the communication also be received. In sum, we believe that if the legislature intended to punish a person for “transmitting an image, information, or data that is harmful to minors” only if the minor received the transmission, then the legislature would have said so in section 847.0138....
...the view adopted by the trial court.”)) (footnotes omitted). Affirmed. GROSS, C.J., and STEVENSON, J., concur. . The defendant notes that the first district quoted the second definition when it rejected a defendant’s constitutional challenge to section 847.0138....
