Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for CS for SB 488
Barcode 587758
LEGISLATIVE ACTION
Senate . House
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Floor: 1/AD/2R .
05/04/2011 04:42 PM .
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Senators Fasano and Benacquisto moved the following:
1 Senate Amendment (with title amendment)
2
3
4 Between lines 268 and 269
5 insert:
6 Section 11. Effective October 1, 2011, subsections (1) and
7 (5) of section 827.071, Florida Statutes, are amended to read:
8 827.071 Sexual performance by a child; penalties.—
9 (1) As used in this section, the following definitions
10 shall apply:
11 (a) “Deviate sexual intercourse” means sexual conduct
12 between persons not married to each other consisting of contact
13 between the penis and the anus, the mouth and the penis, or the
14 mouth and the vulva.
15 (b) “Intentionally view” means to deliberately,
16 purposefully, and voluntarily view. Proof of intentional viewing
17 requires establishing more than a single image, motion picture,
18 exhibition, show, image, data, computer depiction,
19 representation, or other presentation over any period of time.
20 (c)(b) “Performance” means any play, motion picture,
21 photograph, or dance or any other visual representation
22 exhibited before an audience.
23 (d)(c) “Promote” means to procure, manufacture, issue,
24 sell, give, provide, lend, mail, deliver, transfer, transmute,
25 publish, distribute, circulate, disseminate, present, exhibit,
26 or advertise or to offer or agree to do the same.
27 (e)(d) “Sadomasochistic abuse” means flagellation or
28 torture by or upon a person, or the condition of being fettered,
29 bound, or otherwise physically restrained, for the purpose of
30 deriving sexual satisfaction from inflicting harm on another or
31 receiving such harm oneself.
32 (f)(e) “Sexual battery” means oral, anal, or vaginal
33 penetration by, or union with, the sexual organ of another or
34 the anal or vaginal penetration of another by any other object;
35 however, “sexual battery” does not include an act done for a
36 bona fide medical purpose.
37 (g)(f) “Sexual bestiality” means any sexual act between a
38 person and an animal involving the sex organ of the one and the
39 mouth, anus, or vagina of the other.
40 (h)(g) “Sexual conduct” means actual or simulated sexual
41 intercourse, deviate sexual intercourse, sexual bestiality,
42 masturbation, or sadomasochistic abuse; actual lewd exhibition
43 of the genitals; actual physical contact with a person’s clothed
44 or unclothed genitals, pubic area, buttocks, or, if such person
45 is a female, breast, with the intent to arouse or gratify the
46 sexual desire of either party; or any act or conduct which
47 constitutes sexual battery or simulates that sexual battery is
48 being or will be committed. A mother’s breastfeeding of her baby
49 does not under any circumstance constitute “sexual conduct.”
50 (i)(h) “Sexual performance” means any performance or part
51 thereof which includes sexual conduct by a child of less than 18
52 years of age.
53 (j)(i) “Simulated” means the explicit depiction of conduct
54 set forth in paragraph (h) (g) which creates the appearance of
55 such conduct and which exhibits any uncovered portion of the
56 breasts, genitals, or buttocks.
57 (5)(a) It is unlawful for any person to knowingly possess,
58 control, or intentionally view a photograph, motion picture,
59 exhibition, show, representation, image, data, computer
60 depiction, or other presentation which, in whole or in part, he
61 or she knows to include any sexual conduct by a child. The
62 possession, control, or intentional viewing of each such
63 photograph, motion picture, exhibition, show, image, data,
64 computer depiction, representation, or presentation is a
65 separate offense. A person who Whoever violates this subsection
66 commits is guilty of a felony of the third degree, punishable as
67 provided in s. 775.082, s. 775.083, or s. 775.084.
68 (b) This subsection does not apply to material possessed,
69 controlled, or intentionally viewed as part of a law enforcement
70 investigation.
71 Section 12. Effective October 1, 2011, paragraph (e) of
72 subsection (3) of section 921.0022, Florida Statutes, is amended
73 to read
74 921.0022 Criminal Punishment Code; offense severity ranking
75 chart.—
76 (3) OFFENSE SEVERITY RANKING CHART
77 (e) LEVEL 5
78 FloridaStatute FelonyDegree Description
79 316.027(1)(a) 3rd Accidents involving personal injuries, failure to stop; leaving scene.
80 316.1935(4)(a) 2nd Aggravated fleeing or eluding.
81 322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
82 327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
83 381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
84 440.10(1)(g) 2nd Failure to obtain workers’ compensation coverage.
85 440.105(5) 2nd Unlawful solicitation for the purpose of making workers’ compensation claims.
86 440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
87 624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
88 626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
89 790.01(2) 3rd Carrying a concealed firearm.
90 790.162 2nd Threat to throw or discharge destructive device.
91 790.163(1) 2nd False report of deadly explosive or weapon of mass destruction.
92 790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
93 790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
94 800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years.
95 800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years or older.
96 806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
97 812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
98 812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
99 812.019(1) 2nd Stolen property; dealing in or trafficking in.
100 812.131(2)(b) 3rd Robbery by sudden snatching.
101 812.16(2) 3rd Owning, operating, or conducting a chop shop.
102 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
103 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
104 817.2341(1), (2)(a) & (3)(a) 3rd Filing false financial statements, making false entries of material fact or false statements regarding property values relating to the solvency of an insuring entity.
105 817.568(2)(b) 2nd Fraudulent use of personal identification information; value of benefit, services received, payment avoided, or amount of injury or fraud, $5,000 or more or use of personal identification information of 10 or more individuals.
106 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device or reencoder.
107 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
108 827.071(4) 2nd Possess with intent to promote any photographic material, motion picture, etc., which includes sexual conduct by a child.
109 827.071(5) 3rd Possess, control, or intentionally view any photographic material, motion picture, etc., which includes sexual conduct by a child.
110 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
111 843.01 3rd Resist officer with violence to person; resist arrest with violence.
112 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
113 847.0137 (2) & (3) 3rd Transmission of pornography by electronic device or equipment.
114 847.0138 (2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
115 874.05(2) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
116 893.13(1)(a)1. 2nd Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs).
117 893.13(1)(c)2. 2nd Sell, manufacture, or deliver cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs) within 1,000 feet of a child care facility, school, or state, county, or municipal park or publicly owned recreational facility or community center.
118 893.13(1)(d)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of university.
119 893.13(1)(e)2. 2nd Sell, manufacture, or deliver cannabis or other drug prohibited under s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) within 1,000 feet of property used for religious services or a specified business site.
120 893.13(1)(f)1. 1st Sell, manufacture, or deliver cocaine (or other s. 893.03(1)(a), (1)(b), (1)(d), or (2)(a), (2)(b), or (2)(c)4. drugs) within 1,000 feet of public housing facility.
121 893.13(4)(b) 2nd Deliver to minor cannabis (or other s. 893.03(1)(c), (2)(c)1., (2)(c)2., (2)(c)3., (2)(c)5., (2)(c)6., (2)(c)7., (2)(c)8., (2)(c)9., (3), or (4) drugs).
122 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
123
124 ================= T I T L E A M E N D M E N T ================
125 And the title is amended as follows:
126 Delete line 52
127 and insert:
128 in a reference thereto; amending s. 827.071, F.S.;
129 defining the term “intentionally view”; prohibiting
130 controlling or intentionally viewing any photograph,
131 motion picture, exhibition, show, image, data,
132 computer depiction, representation, or other
133 presentation that includes sexual conduct by a child;
134 providing an exception; providing penalties; amending
135 s. 921.0022, F.S.; conforming provisions of the
136 offense severity ranking chart of the Criminal
137 Punishment Code to changes made to s. 827.071, F.S.,
138 by the act; amending s. 960.003, F.S.;