Florida Senate - 2012                        COMMITTEE AMENDMENT
       Bill No. SB 536
       
       
       
       
       
       
                                Barcode 372158                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  02/22/2012           .                                
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       The Committee on Criminal Justice (Hays) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 23 and 24
    4  insert:
    5         Section 2. Subsection (1) of section 775.0847, Florida
    6  Statutes, is amended to read:
    7         775.0847 Possession or promotion of certain images of child
    8  pornography; reclassification.—
    9         (1) As used in For purposes of this section:
   10         (a) “Child” means any person, whose identity is known or
   11  unknown, less than 18 years of age.
   12         (b) “Child pornography” means any image depicting a minor
   13  engaged in sexual conduct or such visual depiction that has been
   14  created, adapted, or modified to appear that a minor is engaging
   15  in sexual conduct. Proof of the identity of the minor is not
   16  required in order to find a violation of this section.
   17         (c) “Minor” means a person who had not attained the age of
   18  18 years at the time the visual depiction was created, adapted,
   19  or modified, or whose image while a minor was used in creating,
   20  adapting, or modifying the visual depiction, and who is
   21  recognizable as an actual person by the person’s facial
   22  features, likeness, or other distinguishing characteristics.
   23         (d)(c) “Sadomasochistic abuse” means flagellation or
   24  torture by or upon a person or the condition of being fettered,
   25  bound, or otherwise physically restrained, for the purpose of
   26  deriving sexual satisfaction, or satisfaction brought about as a
   27  result of sadistic violence, from inflicting harm on another or
   28  receiving such harm oneself.
   29         (e)(d) “Sexual battery” means oral, anal, or vaginal
   30  penetration by, or union with, the sexual organ of another or
   31  the anal or vaginal penetration of another by any other object;
   32  however, sexual battery does not include an act done for a bona
   33  fide medical purpose.
   34         (f)(e) “Sexual bestiality” means any sexual act, actual or
   35  simulated, between a person and an animal involving the sex
   36  organ of the one and the mouth, anus, or vagina of the other.
   37         (g)(f) “Sexual conduct” means actual or simulated sexual
   38  intercourse, deviate sexual intercourse, sexual bestiality,
   39  masturbation, or sadomasochistic abuse; actual lewd exhibition
   40  of the genitals; actual physical contact with a person’s clothed
   41  or unclothed genitals, pubic area, buttocks, or, if the such
   42  person is a female, breast with the intent to arouse or gratify
   43  the sexual desire of either party; or any act or conduct which
   44  constitutes sexual battery or simulates that sexual battery is
   45  being or will be committed. A mother’s breastfeeding of her baby
   46  does not under any circumstance constitute “sexual conduct.”
   47         Section 3. Subsections (1), (4), and (5) of section
   48  827.071, Florida Statutes, are amended to read:
   49         827.071 Sexual performance by a child; penalties.—
   50         (1) As used in this section, the term following definitions
   51  shall apply:
   52         (a) “Child pornography” means any visual depiction,
   53  including, but not limited to, any photograph, film, video,
   54  picture, computer or computer-generated image or picture, or
   55  digitally created image or picture, whether made or produced by
   56  electronic, mechanical, or other means, of sexual conduct, if
   57  the production of such visual depiction involves the use of a
   58  minor engaging in sexual conduct, or such visual depiction has
   59  been created, adapted, or modified to appear that a minor is
   60  engaging in sexual conduct. Proof of the identity of the minor
   61  is not required in order to find a violation of this section.
   62         (b)(a) “Deviate sexual intercourse” means sexual conduct
   63  between persons not married to each other consisting of contact
   64  between the penis and the anus, the mouth and the penis, or the
   65  mouth and the vulva.
   66         (c)(b) “Intentionally view” means to deliberately,
   67  purposefully, and voluntarily view. Proof of intentional viewing
   68  requires establishing more than a single image, motion picture,
   69  exhibition, show, image, data, computer depiction,
   70  representation, or other presentation over any period of time.
   71         (d) “Minor” has the same meaning as provided in s.
   72  775.0847.
   73         (e)(c) “Performance” means any play, motion picture,
   74  photograph, or dance or any other visual representation
   75  exhibited before an audience.
   76         (f)(d) “Promote” means to procure, manufacture, issue,
   77  sell, give, provide, lend, mail, deliver, transfer, transmute,
   78  publish, distribute, circulate, disseminate, present, exhibit,
   79  or advertise or to offer or agree to do the same.
   80         (g)(e) “Sadomasochistic abuse” means flagellation or
   81  torture by or upon a person, or the condition of being fettered,
   82  bound, or otherwise physically restrained, for the purpose of
   83  deriving sexual satisfaction from inflicting harm on another or
   84  receiving such harm oneself.
   85         (h)(f) “Sexual battery” means oral, anal, or vaginal
   86  penetration by, or union with, the sexual organ of another or
   87  the anal or vaginal penetration of another by any other object;
   88  however, “sexual battery” does not include an act done for a
   89  bona fide medical purpose.
   90         (i)(g) “Sexual bestiality” means any sexual act between a
   91  person and an animal involving the sex organ of the one and the
   92  mouth, anus, or vagina of the other.
   93         (j)(h) “Sexual conduct” means actual or simulated sexual
   94  intercourse, deviate sexual intercourse, sexual bestiality,
   95  masturbation, or sadomasochistic abuse; actual lewd exhibition
   96  of the genitals; actual physical contact with a person’s clothed
   97  or unclothed genitals, pubic area, buttocks, or, if the such
   98  person is a female, breast, with the intent to arouse or gratify
   99  the sexual desire of either party; or any act or conduct that
  100  which constitutes sexual battery or simulates that sexual
  101  battery is being or will be committed. A mother’s breastfeeding
  102  of her baby does not under any circumstance constitute “sexual
  103  conduct.”
  104         (k)(i) “Sexual performance” means any performance or part
  105  thereof which includes sexual conduct by a child of less than 18
  106  years of age.
  107         (l)(j) “Simulated” means the explicit depiction of conduct
  108  set forth in paragraph (j) (h) which creates the appearance of
  109  such conduct and which exhibits any uncovered portion of the
  110  breasts, genitals, or buttocks.
  111         (4) It is unlawful for a any person to possess with the
  112  intent to promote any child pornography or any other photograph,
  113  motion picture, exhibition, show, representation, or other
  114  presentation that which, in whole or in part, includes any
  115  sexual conduct by a child. The possession of three or more
  116  copies of such photograph, motion picture, representation, or
  117  presentation is prima facie evidence of an intent to promote.
  118  Whoever violates this subsection commits is guilty of a felony
  119  of the second degree, punishable as provided in s. 775.082, s.
  120  775.083, or s. 775.084.
  121         (5)(a) It is unlawful for a any person to knowingly
  122  possess, control, or intentionally view child pornography or any
  123  other a photograph, motion picture, exhibition, show,
  124  representation, image, data, computer depiction, or other
  125  presentation which, in whole or in part, he or she knows to
  126  include any sexual conduct by a child. The possession, control,
  127  or intentional viewing of each such photograph, motion picture,
  128  exhibition, show, image, data, computer depiction,
  129  representation, or presentation is a separate offense. A person
  130  who violates this subsection commits a felony of the third
  131  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  132  775.084.
  133         (b) This subsection does not apply to material possessed,
  134  controlled, or intentionally viewed as part of a law enforcement
  135  investigation.
  136         Section 4. Paragraph (e) of subsection (3) of section
  137  921.0022, Florida Statutes, is amended to read:
  138         921.0022 Criminal Punishment Code; offense severity ranking
  139  chart.—
  140         (3) OFFENSE SEVERITY RANKING CHART
  141         (e) LEVEL 5
  142  FloridaStatute   FelonyDegree                Description                 
  143  316.027(1)(a)      3rd   Accidents involving personal injuries, failure to stop; leaving scene.
  144  316.1935(4)(a)     2nd   Aggravated fleeing or eluding.              
  145  322.34(6)          3rd   Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
  146  327.30(5)          3rd   Vessel accidents involving personal injury; leaving scene.
  147  381.0041(11)(b)    3rd   Donate blood, plasma, or organs knowing HIV positive.
  148  440.10(1)(g)       2nd   Failure to obtain workers’ compensation coverage.
  149  440.105(5)         2nd   Unlawful solicitation for the purpose of making workers’ compensation claims.
  150  440.381(2)         2nd   Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
  151  624.401(4)(b)2.    2nd   Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
  152  626.902(1)(c)      2nd   Representing an unauthorized insurer; repeat offender.
  153  790.01(2)          3rd   Carrying a concealed firearm.               
  154  790.162            2nd   Threat to throw or discharge destructive device.
  155  790.163(1)         2nd   False report of deadly explosive or weapon of mass destruction.
  156  790.221(1)         2nd   Possession of short-barreled shotgun or machine gun.
  157  790.23             2nd   Felons in possession of firearms, ammunition, or electronic weapons or devices.
  158  800.04(6)(c)       3rd   Lewd or lascivious conduct; offender less than 18 years.
  159  800.04(7)(b)       2nd   Lewd or lascivious exhibition; offender 18 years or older.
  160  806.111(1)         3rd   Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
  161  812.0145(2)(b)     2nd   Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
  162  812.015(8)         3rd   Retail theft; property stolen is valued at $300 or more and one or more specified acts.
  163  812.019(1)         2nd   Stolen property; dealing in or trafficking in.
  164  812.131(2)(b)      3rd   Robbery by sudden snatching.                
  165  812.16(2)          3rd   Owning, operating, or conducting a chop shop.
  166  817.034(4)(a)2.    2nd   Communications fraud, value $20,000 to $50,000.
  167  817.234(11)(b)     2nd   Insurance fraud; property value $20,000 or more but less than $100,000.
  168  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.
  169  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.
  170  817.625(2)(b)      2nd   Second or subsequent fraudulent use of scanning device or reencoder.
  171  825.1025(4)        3rd   Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
  172  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.
  173  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.
  174  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.
  175  843.01             3rd   Resist officer with violence to person; resist arrest with violence.
  176  847.0135(5)(b)     2nd   Lewd or lascivious exhibition using computer; offender 18 years or older.
  177  847.0137 (2) & (3)  3rd   Transmission of pornography by electronic device or equipment.
  178  847.0138 (2) & (3)  3rd   Transmission of material harmful to minors to a minor by electronic device or equipment.
  179  874.05(2)          2nd   Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
  180  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).
  181  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.
  182  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.
  183  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.
  184  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.
  185  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).
  186  893.1351(1)        3rd   Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
  187         Section 5. For the purpose of incorporating the amendment
  188  made by this act to section 827.071, Florida Statutes, in a
  189  reference thereto, subsection (2) of section 794.0115, Florida
  190  Statutes, is reenacted to read:
  191         794.0115 Dangerous sexual felony offender; mandatory
  192  sentencing.—
  193         (2) Any person who is convicted of a violation of s.
  194  787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
  195  800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
  196  (4); or s. 847.0145; or of any similar offense under a former
  197  designation, which offense the person committed when he or she
  198  was 18 years of age or older, and the person:
  199         (a) Caused serious personal injury to the victim as a
  200  result of the commission of the offense;
  201         (b) Used or threatened to use a deadly weapon during the
  202  commission of the offense;
  203         (c) Victimized more than one person during the course of
  204  the criminal episode applicable to the offense;
  205         (d) Committed the offense while under the jurisdiction of a
  206  court for a felony offense under the laws of this state, for an
  207  offense that is a felony in another jurisdiction, or for an
  208  offense that would be a felony if that offense were committed in
  209  this state; or
  210         (e) Has previously been convicted of a violation of s.
  211  787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
  212  800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
  213  (4); s. 847.0145; of any offense under a former statutory
  214  designation which is similar in elements to an offense described
  215  in this paragraph; or of any offense that is a felony in another
  216  jurisdiction, or would be a felony if that offense were
  217  committed in this state, and which is similar in elements to an
  218  offense described in this paragraph,
  219  
  220  is a dangerous sexual felony offender, who must be sentenced to
  221  a mandatory minimum term of 25 years imprisonment up to, and
  222  including, life imprisonment.
  223  
  224  ================= T I T L E  A M E N D M E N T ================
  225  And the title is amended as follows:
  226  
  227         Delete lines 2 - 7
  228  and insert:
  229  
  230         An act relating to child pornography; amending s.
  231         847.012, F.S.; prohibiting an adult from knowingly
  232         distributing to a minor or posting on school property
  233         certain specified obscene materials; defining the term
  234         “school property”; amending s. 775.0847, F.S.;
  235         revising the definition of the term “child
  236         pornography” to include visual depictions in which it
  237         appears that a minor is engaging in sexual conduct;
  238         providing that proof of the identity of a minor is not
  239         required; defining the term “minor”; amending s.
  240         827.071, F.S.; defining the terms “child pornography”
  241         and “minor”; conforming cross-references; including
  242         possession of child pornography within specified
  243         offenses; providing penalties; amending s. 921.0022,
  244         F.S.; conforming provisions of the offense severity
  245         ranking chart of the Criminal Punishment Code to
  246         changes made by the act; reenacting s. 794.0115(2),
  247         F.S., relating to dangerous sexual felony offenders
  248         and mandatory sentencing thereof, to incorporate the
  249         amendment made by the act to s. 827.071, F.S., in a
  250         reference thereto; providing an effective date.