HB 331

1	A bill to be entitled
2	An act relating to child pornography; amending s.
3	775.0847, F.S.; revising the definition of "child
4	pornography" to include visual depictions in which it
5	appears that a minor is engaging in sexual conduct;
6	providing that proof of the identity of a minor is not
7	required; defining "minor"; amending s. 827.071, F.S.;
8	defining "child pornography" and "minor"; conforming
9	cross-references; including possession of child
10	pornography within specified offenses; providing
11	penalties; amending s. 921.0022, F.S.; conforming
12	provisions of the offense severity ranking chart of the
13	Criminal Punishment Code to changes made by the act;
14	reenacting s. 794.0115(2), F.S., relating to dangerous
15	sexual felony offenders and mandatory sentencing thereof,
16	to incorporate the amendment to s. 827.071, F.S., in a
17	reference thereto; providing an effective date.
18
19	Be It Enacted by the Legislature of the State of Florida:
20
21	Section 1.  Paragraph (b) of subsection (1) of section
22	775.0847, Florida Statutes, is amended, a new paragraph (c) is
23	added to that subsection, and present paragraphs (c) through (f)
24	of that subsection are redesignated as paragraphs (d) through
25	(g), respectively, to read:
26	775.0847  Possession or promotion of certain images of
27	child pornography; reclassification.--
28	(1)  For purposes of this section:
29	(b)  "Child pornography" means any image depicting a minor
30	engaged in sexual conduct or such visual depiction that has been
31	created, adapted, or modified to appear that a minor is engaging
32	in sexual conduct. Proof of the identity of the minor is not
33	required in order to find a violation of this section.
34	(c)  "Minor" means a person who had not attained the age of
35	18 years at the time the visual depiction was created, adapted,
36	or modified, or whose image while a minor was used in creating,
37	adapting, or modifying the visual depiction, and who is
38	recognizable as an actual person by the person's facial
39	features, likeness, or other distinguishing characteristics.
40	Section 2.  New paragraphs (a) and (c) are added to
41	subsection (1) of section 827.071, Florida Statutes, present
42	paragraphs (a) through (i) of that subsection are redesignated
43	as paragraph (b) and paragraphs (d) through (k) of that
44	subsection, respectively, and present paragraph (i) of
45	subsection (1) and subsections (4) and (5) of that section are
46	amended, to read:
47	827.071  Sexual performance by a child; penalties.--
48	(1)  As used in this section, the following definitions
49	shall apply:
50	(a)  "Child pornography" means any visual depiction,
51	including, but not limited to, any photograph, film, video,
52	picture, computer or computer-generated image or picture, or
53	digitally created image or picture, whether made or produced by
54	electronic, mechanical, or other means, of sexual conduct, where
55	the production of such visual depiction involves the use of a
56	minor engaging in sexual conduct, or such visual depiction has
57	been created, adapted, or modified to appear that a minor is
58	engaging in sexual conduct. Proof of the identity of the minor
59	is not required in order to find a violation of this section.
60	(c)  "Minor" has the same meaning as provided in s.
61	775.0847.
62	(k)(i)  "Simulated" means the explicit depiction of conduct
63	set forth in paragraph (i) (g) which creates the appearance of
64	such conduct and which exhibits any uncovered portion of the
65	breasts, genitals, or buttocks.
66	(4)  It is unlawful for any person to possess with the
67	intent to promote any child pornography or any other photograph,
68	motion picture, exhibition, show, representation, or other
69	presentation which, in whole or in part, includes any sexual
70	conduct by a child. The possession of three or more copies of
71	such photograph, motion picture, representation, or presentation
72	is prima facie evidence of an intent to promote. Whoever
73	violates this subsection commits is guilty of a felony of the
74	second degree, punishable as provided in s. 775.082, s. 775.083,
75	or s. 775.084.
76	(5)  It is unlawful for any person to knowingly possess
77	child pornography or any other a photograph, motion picture,
78	exhibition, show, representation, or other presentation which,
79	in whole or in part, he or she knows to include any sexual
80	conduct by a child. The possession of each such photograph,
81	motion picture, exhibition, show, representation, or
82	presentation is a separate offense. Whoever violates this
83	subsection commits is guilty of a felony of the third degree,
84	punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
85	Section 3.  Paragraph (e) of subsection (3) of section
86	921.0022, Florida Statutes, is amended to read:
87	921.0022  Criminal Punishment Code; offense severity
88	ranking chart.--
89	(3)  OFFENSE SEVERITY RANKING CHART
90	(e)  LEVEL 5
91
	FloridaStatute FelonyDegree Description
92
	316.027(1)(a) 3rd Accidents involving personal injuries, failure to stop; leaving scene.
93
	316.1935(4)(a) 2nd Aggravated fleeing or eluding.
94
	322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
95
	327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
96
	381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
97
	440.10(1)(g) 2nd Failure to obtain workers' compensation coverage.
98
	440.105(5) 2nd Unlawful solicitation for the purpose of making workers' compensation claims.
99
	440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers' compensation premiums.
100
	624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
101
	626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
102
	790.01(2) 3rd Carrying a concealed firearm.
103
	790.162 2nd Threat to throw or discharge destructive device.
104
	790.163(1) 2nd False report of deadly explosive or weapon of mass destruction.
105
	790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
106
	790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
107
	800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years.
108
	800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years or older.
109
	806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
110
	812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
111
	812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
112
	812.019(1) 2nd Stolen property; dealing in or trafficking in.
113
	812.131(2)(b) 3rd Robbery by sudden snatching.
114
	812.16(2) 3rd Owning, operating, or conducting a chop shop.
115
	817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
116
	817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
117
	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.
118
	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.
119
	817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device or reencoder.
120
	825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
121
	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.
122
	827.071(5) 3rd Possess any child pornography or other photographic material, motion picture, etc., which includes sexual conduct by a child.
123
	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.
124
	843.01 3rd Resist officer with violence to person; resist arrest with violence.
125
	847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
126
	847.0137(2) & (3) 3rd Transmission of pornography by electronic device or equipment.
127
	847.0138(2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
128
	874.05(2) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
129
	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).
130
	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.
131
	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.
132
	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.
133
	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.
134
	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).
135
	893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
136
137	Section 4.  For the purpose of incorporating the amendment
138	made by this act to section 827.071, Florida Statutes, in a
139	reference thereto, subsection (2) of section 794.0115, Florida
140	Statutes, is reenacted to read:
141	794.0115  Dangerous sexual felony offender; mandatory
142	sentencing.--
143	(2)  Any person who is convicted of a violation of s.
144	787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
145	800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
146	(4); or s. 847.0145; or of any similar offense under a former
147	designation, which offense the person committed when he or she
148	was 18 years of age or older, and the person:
149	(a)  Caused serious personal injury to the victim as a
150	result of the commission of the offense;
151	(b)  Used or threatened to use a deadly weapon during the
152	commission of the offense;
153	(c)  Victimized more than one person during the course of
154	the criminal episode applicable to the offense;
155	(d)  Committed the offense while under the jurisdiction of
156	a court for a felony offense under the laws of this state, for
157	an offense that is a felony in another jurisdiction, or for an
158	offense that would be a felony if that offense were committed in
159	this state; or
160	(e)  Has previously been convicted of a violation of s.
161	787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
162	800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
163	(4); s. 847.0145; of any offense under a former statutory
164	designation which is similar in elements to an offense described
165	in this paragraph; or of any offense that is a felony in another
166	jurisdiction, or would be a felony if that offense were
167	committed in this state, and which is similar in elements to an
168	offense described in this paragraph,
169
170	is a dangerous sexual felony offender, who must be sentenced to
171	a mandatory minimum term of 25 years imprisonment up to, and
172	including, life imprisonment.
173	Section 5.  This act shall take effect October 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.