Florida Senate - 2014                              CS for SB 182
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Stargel
       
       
       
       
       586-01755-14                                           2014182c1
    1                        A bill to be entitled                      
    2         An act relating to child pornography; amending s.
    3         775.0847, F.S.; redefining the term “child
    4         pornography” and defining the term “minor”; amending
    5         s. 827.071, F.S.; defining the terms “child
    6         pornography” and “minor”; conforming cross-references;
    7         including possession of child pornography within
    8         specified criminal offenses; providing criminal
    9         penalties; amending s. 921.0022, F.S.; revising
   10         provisions of the offense severity ranking chart of
   11         the Criminal Punishment Code to conform to changes
   12         made by the act; amending ss. 947.1405 and 948.30,
   13         F.S.; prohibiting certain conditional releasees,
   14         probationers, or community controllees from viewing,
   15         accessing, owning, or possessing any obscene,
   16         pornographic, or sexually stimulating material;
   17         providing an exception; reenacting s. 794.0115(2),
   18         F.S., relating to dangerous sexual felony offenders
   19         and mandatory sentencing thereof, to incorporate the
   20         amendment to s. 827.071, F.S., in references thereto;
   21         providing an effective date.
   22          
   23  Be It Enacted by the Legislature of the State of Florida:
   24  
   25         Section 1. Paragraph (b) of subsection (1) of section
   26  775.0847, Florida Statutes, is amended, present paragraphs (c)
   27  through (f) of that subsection are redesignated as paragraphs
   28  (d) through (g), respectively, and a new paragraph (c) is added
   29  to that subsection, to read:
   30         775.0847 Possession or promotion of certain images of child
   31  pornography; reclassification.—
   32         (1) For purposes of this section:
   33         (b) “Child pornography” means any image depicting a minor
   34  engaged in sexual conduct or such visual depiction that has been
   35  created, adapted, or modified to appear that a minor is engaging
   36  in sexual conduct. Proof of the identity of the minor is not
   37  required in order to find a violation of this section.
   38         (c) “Minor” means a person who had not attained the age of
   39  18 years at the time the visual depiction was created, adapted,
   40  or modified, or whose image while he or she was a minor was used
   41  in creating, adapting, or modifying the visual depiction, and
   42  who is recognizable as an actual person by his or her facial
   43  features, likeness, or other distinguishing characteristics.
   44         Section 2. Present paragraphs (a), (b), and (c) through (j)
   45  of subsection (1) of section 827.071, Florida Statutes, are
   46  redesignated as paragraphs (b), (c), and (e) through (l),
   47  respectively, present paragraph (j) of that subsection is
   48  amended, new paragraphs (a) and (d) are added to that
   49  subsection, and subsection (4) and paragraph (a) of subsection
   50  (5) of that section are amended, to read:
   51         827.071 Sexual performance by a child; penalties.—
   52         (1) As used in this section, the following definitions
   53  shall apply:
   54         (a) “Child pornography” means a visual depiction,
   55  including, but not limited to, a photograph, film, video,
   56  picture, computer or computer-generated image or picture, or
   57  digitally created image or picture, whether made or produced by
   58  electronic, mechanical, or other means, of sexual conduct, if
   59  the production of such visual depiction involves the use of a
   60  minor engaging in sexual conduct, or if such visual depiction
   61  has been created, adapted, or modified to appear that a minor is
   62  engaging in sexual conduct. Proof of the identity of the minor
   63  is not required in order to find a violation of this section.
   64         (d) “Minor” has the same meaning as provided in s.
   65  775.0847.
   66         (l)(j) “Simulated” means the explicit depiction of conduct
   67  set forth in paragraph (j) (h) which creates the appearance of
   68  such conduct and which exhibits any uncovered portion of the
   69  breasts, genitals, or buttocks.
   70         (4) It is unlawful for any person to possess with the
   71  intent to promote any child pornography or any other photograph,
   72  motion picture, exhibition, show, representation, or other
   73  presentation which, in whole or in part, includes any sexual
   74  conduct by a child. The possession of three or more copies of
   75  such photograph, motion picture, representation, or presentation
   76  is prima facie evidence of an intent to promote. Whoever
   77  violates this subsection commits is guilty of a felony of the
   78  second degree, punishable as provided in s. 775.082, s. 775.083,
   79  or s. 775.084.
   80         (5)(a) It is unlawful for any person to knowingly possess,
   81  control, or intentionally view child pornography or any other a
   82  photograph, motion picture, exhibition, show, representation,
   83  image, data, computer depiction, or other presentation which, in
   84  whole or in part, he or she knows to include any sexual conduct
   85  by a child. The possession, control, or intentional viewing of
   86  each such photograph, motion picture, exhibition, show, image,
   87  data, computer depiction, representation, or presentation is a
   88  separate offense. If such photograph, motion picture,
   89  exhibition, show, representation, image, data, computer
   90  depiction, or other presentation includes sexual conduct by more
   91  than one child, then each such child in each such photograph,
   92  motion picture, exhibition, show, representation, image, data,
   93  computer depiction, or other presentation that is knowingly
   94  possessed, controlled, or intentionally viewed is a separate
   95  offense. A person who violates this paragraph subsection commits
   96  a felony of the third degree, punishable as provided in s.
   97  775.082, s. 775.083, or s. 775.084.
   98         Section 3. Paragraph (e) of subsection (3) of section
   99  921.0022, Florida Statutes, is amended to read:
  100         921.0022 Criminal Punishment Code; offense severity ranking
  101  chart.—
  102         (3) OFFENSE SEVERITY RANKING CHART
  103         (e) LEVEL 5
  104  
  105  FloridaStatute    FelonyDegree           Description            
  106  316.027(1)(a)        3rd   Accidents involving personal injuries, failure to stop; leaving scene.
  107  316.1935(4)(a)       2nd   Aggravated fleeing or eluding.    
  108  322.34(6)            3rd   Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
  109  327.30(5)            3rd   Vessel accidents involving personal injury; leaving scene.
  110  379.367(4)           3rd   Willful molestation of a commercial harvester’s spiny lobster trap, line, or buoy.
  111  379.3671(2)(c)3.     3rd   Willful molestation, possession, or removal of a commercial harvester’s trap contents or trap gear by another harvester.
  112  381.0041(11)(b)      3rd   Donate blood, plasma, or organs knowing HIV positive.
  113  440.10(1)(g)         2nd   Failure to obtain workers’ compensation coverage.
  114  440.105(5)           2nd   Unlawful solicitation for the purpose of making workers’ compensation claims.
  115  440.381(2)           2nd   Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
  116  624.401(4)(b)2.      2nd   Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
  117  626.902(1)(c)        2nd   Representing an unauthorized insurer; repeat offender.
  118  790.01(2)            3rd   Carrying a concealed firearm.     
  119  790.162              2nd   Threat to throw or discharge destructive device.
  120  790.163(1)           2nd   False report of deadly explosive or weapon of mass destruction.
  121  790.221(1)           2nd   Possession of short-barreled shotgun or machine gun.
  122  790.23               2nd   Felons in possession of firearms, ammunition, or electronic weapons or devices.
  123  800.04(6)(c)         3rd   Lewd or lascivious conduct; offender less than 18 years.
  124  800.04(7)(b)         2nd   Lewd or lascivious exhibition; offender 18 years or older.
  125  806.111(1)           3rd   Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
  126  812.0145(2)(b)       2nd   Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
  127  812.015(8)           3rd   Retail theft; property stolen is valued at $300 or more and one or more specified acts.
  128  812.019(1)           2nd   Stolen property; dealing in or trafficking in.
  129  812.131(2)(b)        3rd   Robbery by sudden snatching.      
  130  812.16(2)            3rd   Owning, operating, or conducting a chop shop.
  131  817.034(4)(a)2.      2nd   Communications fraud, value $20,000 to $50,000.
  132  817.234(11)(b)       2nd   Insurance fraud; property value $20,000 or more but less than $100,000.
  133  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.
  134  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.
  135  817.625(2)(b)        2nd   Second or subsequent fraudulent use of scanning device or reencoder.
  136  825.1025(4)          3rd   Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
  137  827.071(4)           2nd   Possess with intent to promote any child pornography or other photographic material, motion picture, etc., which includes sexual conduct by a child.
  138  827.071(5)           3rd   Possess, control, or intentionally view any child pornography or other photographic material, motion picture, etc., which includes sexual conduct by a child.
  139  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.
  140  843.01               3rd   Resist officer with violence to person; resist arrest with violence.
  141  847.0135(5)(b)       2nd   Lewd or lascivious exhibition using computer; offender 18 years or older.
  142  847.0137 (2) & (3)   3rd   Transmission of pornography by electronic device or equipment.
  143  847.0138 (2) & (3)   3rd   Transmission of material harmful to minors to a minor by electronic device or equipment.
  144  874.05(1)(b)         2nd   Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
  145  874.05(2)(a)         2nd   Encouraging or recruiting person under 13 to join a criminal gang.
  146  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).
  147  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.
  148  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.
  149  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.
  150  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.
  151  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).
  152  893.1351(1)          3rd   Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
  153         Section 4. Subsection (13) is added to section 947.1405,
  154  Florida Statutes, to read:
  155         947.1405 Conditional release program.—
  156         (13) Effective for a releasee whose crime was committed on
  157  or after October 1, 2014, in violation of chapter 794, s.
  158  800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, in addition
  159  to any other provision of this section, the commission must
  160  impose a condition prohibiting the releasee from viewing,
  161  accessing, owning, or possessing any obscene, pornographic, or
  162  sexually stimulating visual or auditory material unless
  163  otherwise indicated in the treatment plan provided by a
  164  qualified practitioner in the sexual offender treatment program.
  165  Visual or auditory material includes, but is not limited to,
  166  telephones, electronic media, computer programs, and computer
  167  services.
  168         Section 5. Subsection (5) is added to section 948.30,
  169  Florida Statutes, to read:
  170         948.30 Additional terms and conditions of probation or
  171  community control for certain sex offenses.—Conditions imposed
  172  pursuant to this section do not require oral pronouncement at
  173  the time of sentencing and shall be considered standard
  174  conditions of probation or community control for offenders
  175  specified in this section.
  176         (5) Effective for a probationer or community controllee
  177  whose crime was committed on or after October 1, 2014, and who
  178  is placed on probation or community control for a violation of
  179  chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s.
  180  847.0145, in addition to all other conditions imposed, the court
  181  must impose a condition prohibiting the probationer or community
  182  controllee from viewing, accessing, owning, or possessing any
  183  obscene, pornographic, or sexually stimulating visual or
  184  auditory material unless otherwise indicated in the treatment
  185  plan provided by a qualified practitioner in the sexual offender
  186  treatment program. Visual or auditory material includes, but is
  187  not limited to, telephones, electronic media, computer programs,
  188  and computer services.
  189         Section 6. For the purpose of incorporating the amendment
  190  made by this act to section 827.071, Florida Statutes, in
  191  references thereto, subsection (2) of section 794.0115, Florida
  192  Statutes, is reenacted to read:
  193         794.0115 Dangerous sexual felony offender; mandatory
  194  sentencing.—
  195         (2) Any person who is convicted of a violation of s.
  196  787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
  197  800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
  198  (4); or s. 847.0145; or of any similar offense under a former
  199  designation, which offense the person committed when he or she
  200  was 18 years of age or older, and the person:
  201         (a) Caused serious personal injury to the victim as a
  202  result of the commission of the offense;
  203         (b) Used or threatened to use a deadly weapon during the
  204  commission of the offense;
  205         (c) Victimized more than one person during the course of
  206  the criminal episode applicable to the offense;
  207         (d) Committed the offense while under the jurisdiction of a
  208  court for a felony offense under the laws of this state, for an
  209  offense that is a felony in another jurisdiction, or for an
  210  offense that would be a felony if that offense were committed in
  211  this state; or
  212         (e) Has previously been convicted of a violation of s.
  213  787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
  214  800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
  215  (4); s. 847.0145; of any offense under a former statutory
  216  designation which is similar in elements to an offense described
  217  in this paragraph; or of any offense that is a felony in another
  218  jurisdiction, or would be a felony if that offense were
  219  committed in this state, and which is similar in elements to an
  220  offense described in this paragraph,
  221  
  222  is a dangerous sexual felony offender, who must be sentenced to
  223  a mandatory minimum term of 25 years imprisonment up to, and
  224  including, life imprisonment.
  225         Section 7. This act shall take effect October 1, 2014.