Florida Senate - 2014 COMMITTEE AMENDMENT
Bill No. SB 182
Ì770164$Î770164
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/11/2014 .
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(Grimsley) recommended the following:
1 Senate Amendment to Amendment (287160) (with title
2 amendment)
3
4 Delete lines 5 - 40
5 and insert:
6 Section 1. Paragraph (b) of subsection (1) of section
7 775.0847, Florida Statutes, is amended, present paragraphs (c)
8 through (f) of that subsection are redesignated as paragraphs
9 (d) through (g), respectively, and a new paragraph (c) is added
10 to that subsection, to read:
11 775.0847 Possession or promotion of certain images of child
12 pornography; reclassification.—
13 (1) For purposes of this section:
14 (b) “Child pornography” means any image depicting a minor
15 engaged in sexual conduct or such visual depiction that has been
16 created, adapted, or modified to appear that a minor is engaging
17 in sexual conduct. Proof of the identity of the minor is not
18 required in order to find a violation of this section.
19 (c) “Minor” means a person who had not attained the age of
20 18 years at the time the visual depiction was created, adapted,
21 or modified, or whose image while he or she was a minor was used
22 in creating, adapting, or modifying the visual depiction, and
23 who is recognizable as an actual person by his or her facial
24 features, likeness, or other distinguishing characteristics.
25 Section 2. Present paragraphs (a), (b), and (c) through (j)
26 of subsection (1) of section 827.071, Florida Statutes, are
27 redesignated as paragraphs (b), (c), and (e) through (l),
28 respectively, present paragraph (j) of that subsection is
29 amended, new paragraphs (a) and (d) are added to that
30 subsection, and subsection (4) and paragraph (a) of subsection
31 (5) of that section are amended, to read:
32 827.071 Sexual performance by a child; penalties.—
33 (1) As used in this section, the following definitions
34 shall apply:
35 (a) “Child pornography” means a visual depiction,
36 including, but not limited to, a photograph, film, video,
37 picture, computer or computer-generated image or picture, or
38 digitally created image or picture, whether made or produced by
39 electronic, mechanical, or other means, of sexual conduct, if
40 the production of such visual depiction involves the use of a
41 minor engaging in sexual conduct, or if such visual depiction
42 has been created, adapted, or modified to appear that a minor is
43 engaging in sexual conduct. Proof of the identity of the minor
44 is not required in order to find a violation of this section.
45 (d) “Minor” has the same meaning as provided in s.
46 775.0847.
47 (l)(j) “Simulated” means the explicit depiction of conduct
48 set forth in paragraph (j) (h) which creates the appearance of
49 such conduct and which exhibits any uncovered portion of the
50 breasts, genitals, or buttocks.
51 (4) It is unlawful for any person to possess with the
52 intent to promote any child pornography or any other photograph,
53 motion picture, exhibition, show, representation, or other
54 presentation which, in whole or in part, includes any sexual
55 conduct by a child. The possession of three or more copies of
56 such photograph, motion picture, representation, or presentation
57 is prima facie evidence of an intent to promote. Whoever
58 violates this subsection commits is guilty of a felony of the
59 second degree, punishable as provided in s. 775.082, s. 775.083,
60 or s. 775.084.
61 (5)(a) It is unlawful for any person to knowingly possess,
62 control, or intentionally view child pornography or any other a
63 photograph, motion picture, exhibition, show, representation,
64 image, data, computer depiction, or other presentation which, in
65 whole or in part, he or she knows to include any sexual conduct
66 by a child. The possession, control, or intentional viewing of
67 each such photograph, motion picture, exhibition, show, image,
68 data, computer depiction, representation, or presentation is a
69 separate offense. If such photograph, motion picture,
70 exhibition, show, representation, image, data, computer
71 depiction, or other presentation includes sexual conduct by more
72 than one child, then each such child in each such photograph,
73 motion picture, exhibition, show, representation, image, data,
74 computer depiction, or other presentation that is knowingly
75 possessed, controlled, or intentionally viewed is a separate
76 offense. A person who violates this paragraph subsection commits
77 a felony of the third degree, punishable as provided in s.
78 775.082, s. 775.083, or s. 775.084.
79 Section 3. Paragraph (e) of subsection (3) of section
80 921.0022, Florida Statutes, is amended to read:
81 921.0022 Criminal Punishment Code; offense severity ranking
82 chart.—
83 (3) OFFENSE SEVERITY RANKING CHART
84 (e) LEVEL 5
85
86 FloridaStatute FelonyDegree Description
87 316.027(1)(a) 3rd Accidents involving personal injuries, failure to stop; leaving scene.
88 316.1935(4)(a) 2nd Aggravated fleeing or eluding.
89 322.34(6) 3rd Careless operation of motor vehicle with suspended license, resulting in death or serious bodily injury.
90 327.30(5) 3rd Vessel accidents involving personal injury; leaving scene.
91 379.367(4) 3rd Willful molestation of a commercial harvester’s spiny lobster trap, line, or buoy.
92 379.3671(2)(c)3. 3rd Willful molestation, possession, or removal of a commercial harvester’s trap contents or trap gear by another harvester.
93 381.0041(11)(b) 3rd Donate blood, plasma, or organs knowing HIV positive.
94 440.10(1)(g) 2nd Failure to obtain workers’ compensation coverage.
95 440.105(5) 2nd Unlawful solicitation for the purpose of making workers’ compensation claims.
96 440.381(2) 2nd Submission of false, misleading, or incomplete information with the purpose of avoiding or reducing workers’ compensation premiums.
97 624.401(4)(b)2. 2nd Transacting insurance without a certificate or authority; premium collected $20,000 or more but less than $100,000.
98 626.902(1)(c) 2nd Representing an unauthorized insurer; repeat offender.
99 790.01(2) 3rd Carrying a concealed firearm.
100 790.162 2nd Threat to throw or discharge destructive device.
101 790.163(1) 2nd False report of deadly explosive or weapon of mass destruction.
102 790.221(1) 2nd Possession of short-barreled shotgun or machine gun.
103 790.23 2nd Felons in possession of firearms, ammunition, or electronic weapons or devices.
104 800.04(6)(c) 3rd Lewd or lascivious conduct; offender less than 18 years.
105 800.04(7)(b) 2nd Lewd or lascivious exhibition; offender 18 years or older.
106 806.111(1) 3rd Possess, manufacture, or dispense fire bomb with intent to damage any structure or property.
107 812.0145(2)(b) 2nd Theft from person 65 years of age or older; $10,000 or more but less than $50,000.
108 812.015(8) 3rd Retail theft; property stolen is valued at $300 or more and one or more specified acts.
109 812.019(1) 2nd Stolen property; dealing in or trafficking in.
110 812.131(2)(b) 3rd Robbery by sudden snatching.
111 812.16(2) 3rd Owning, operating, or conducting a chop shop.
112 817.034(4)(a)2. 2nd Communications fraud, value $20,000 to $50,000.
113 817.234(11)(b) 2nd Insurance fraud; property value $20,000 or more but less than $100,000.
114 817.2341(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.
115 817.568(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.
116 817.625(2)(b) 2nd Second or subsequent fraudulent use of scanning device or reencoder.
117 825.1025(4) 3rd Lewd or lascivious exhibition in the presence of an elderly person or disabled adult.
118 827.071(4) 2nd Possess with intent to promote any child pornography or other photographic material, motion picture, etc., which includes sexual conduct by a child.
119 827.071(5) 3rd Possess, control, or intentionally view any child pornography or other photographic material, motion picture, etc., which includes sexual conduct by a child.
120 839.13(2)(b) 2nd Falsifying records of an individual in the care and custody of a state agency involving great bodily harm or death.
121 843.01 3rd Resist officer with violence to person; resist arrest with violence.
122 847.0135(5)(b) 2nd Lewd or lascivious exhibition using computer; offender 18 years or older.
123 847.0137 (2) & (3) 3rd Transmission of pornography by electronic device or equipment.
124 847.0138 (2) & (3) 3rd Transmission of material harmful to minors to a minor by electronic device or equipment.
125 874.05(1)(b) 2nd Encouraging or recruiting another to join a criminal gang; second or subsequent offense.
126 874.05(2)(a) 2nd Encouraging or recruiting person under 13 to join a criminal gang.
127 893.13(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).
128 893.13(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.
129 893.13(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.
130 893.13(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.
131 893.13(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.
132 893.13(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).
133 893.1351(1) 3rd Ownership, lease, or rental for trafficking in or manufacturing of controlled substance.
134 Section 4. Subsection (13) is added to section 947.1405,
135 Florida Statutes, to read:
136 947.1405 Conditional release program.—
137 (13) Effective for a releasee whose crime was committed on
138 or after October 1, 2014, in violation of chapter 794, s.
139 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145, in addition
140 to any other provision of this section, the commission must
141 impose a condition prohibiting the releasee from viewing,
142 accessing, owning, or possessing any obscene, pornographic, or
143 sexually stimulating visual or auditory material unless
144 otherwise indicated in the treatment plan provided by a
145 qualified practitioner in the sexual offender treatment program.
146 Visual or auditory material includes, but is not limited to,
147 telephones, electronic media, computer programs, and computer
148 services.
149 Section 5. Subsection (5) is added to section 948.30,
150 Florida Statutes, to read:
151 948.30 Additional terms and conditions of probation or
152 community control for certain sex offenses.—Conditions imposed
153 pursuant to this section do not require oral pronouncement at
154 the time of sentencing and shall be considered standard
155 conditions of probation or community control for offenders
156 specified in this section.
157 (5) Effective for a probationer or community controllee
158 whose crime was committed on or after October 1, 2014, and who
159 is placed on probation or community control for a violation of
160 chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s.
161 847.0145, in addition to all other conditions imposed, the court
162 must impose a condition prohibiting the probationer or community
163 controllee from viewing, accessing, owning, or possessing any
164 obscene, pornographic, or sexually stimulating visual or
165 auditory material unless otherwise indicated in the treatment
166 plan provided by a qualified practitioner in the sexual offender
167 treatment program. Visual or auditory material includes, but is
168 not limited to, telephones, electronic media, computer programs,
169 and computer services.
170 Section 6. For the purpose of incorporating the amendment
171 made by this act to section 827.071, Florida Statutes, in
172 references thereto, subsection (2) of section 794.0115, Florida
173 Statutes, is reenacted to read:
174 794.0115 Dangerous sexual felony offender; mandatory
175 sentencing.—
176 (2) Any person who is convicted of a violation of s.
177 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s.
178 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or
179 (4); or s. 847.0145; or of any similar offense under a former
180 designation, which offense the person committed when he or she
181 was 18 years of age or older, and the person:
182 (a) Caused serious personal injury to the victim as a
183 result of the commission of the offense;
184 (b) Used or threatened to use a deadly weapon during the
185 commission of the offense;
186 (c) Victimized more than one person during the course of
187 the criminal episode applicable to the offense;
188 (d) Committed the offense while under the jurisdiction of a
189 court for a felony offense under the laws of this state, for an
190 offense that is a felony in another jurisdiction, or for an
191 offense that would be a felony if that offense were committed in
192 this state; or
193 (e) Has previously been 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); s. 847.0145; of any offense under a former statutory
197 designation which is similar in elements to an offense described
198 in this paragraph; or of any offense that is a felony in another
199 jurisdiction, or would be a felony if that offense were
200 committed in this state, and which is similar in elements to an
201 offense described in this paragraph,
202
203 is a dangerous sexual felony offender, who must be sentenced to
204 a mandatory minimum term of 25 years imprisonment up to, and
205 including, life imprisonment.
206
207 ================= T I T L E A M E N D M E N T ================
208 And the title is amended as follows:
209 Delete lines 48 - 53
210 and insert:
211 An act relating to child pornography; amending s.
212 775.0847, F.S.; redefining the term “child
213 pornography” and defining the term “minor”; amending
214 s. 827.071, F.S.; defining the terms “child
215 pornography” and “minor”; conforming cross-references;
216 including possession of child pornography within
217 specified criminal offenses; providing criminal
218 penalties; amending s. 921.0022, F.S.; revising
219 provisions of the offense severity ranking chart of
220 the Criminal Punishment Code to conform to changes
221 made by the act; amending ss. 947.1405 and 948.30,
222 F.S.; prohibiting certain conditional releasees,
223 probationers, or community controllees from viewing,
224 accessing, owning, or possessing any obscene,
225 pornographic, or sexually stimulating material;
226 providing an exception; reenacting s. 794.0115(2),
227 F.S., relating to dangerous sexual felony offenders
228 and mandatory sentencing thereof, to incorporate the
229 amendment to s. 827.071, F.S., in references thereto;