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.;