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Legal Pleadings:

Motion To Dismiss – Jurisdiction and Statute of Limitations

MOTION TO DISMISS

COMES NOW the Defendant, by and through his undersigned counsel, and, pursuant to Rule 3.190, Fla. R. Crim. P., moves this Honorable Court to dismiss Counts 1 – 28 of the Information of the above-styled cause, and, as grounds therefore, states as follows:
FACTS
1. The client is charged by Information with 28 counts of possession of child pornography, in violation of § 827.071(5), Fla. Stat., reclassified to second degree felonies, pursuant to §775.0847(2) Fla. Stat., and 6 counts of transmission of child pornography in violation of §847.001, Fla. Stat. (third degree felonies).
2. Section 775.0847 Fla. Stat., permits reclassification of a violation of § 827.071 Fla. Stat., from a third degree felony to a second degree felony, if the offender possesses “10 or more images of any form of child pornography regardless of content” and at least one image contains certain types of content, including “any movie involving a child.” (emphasis added).
3. The State has taken the “10 or more” language, and failed to honor it. Instead, they have taken each image, and, rather than recognizing the mathematical certainty that 28 is a number within the “10 or more” statutory language, such that there should be but a single count, have both

(1) violated double jeopardy and (2) improperly multiplied the number of second degree felony counts.
4. Under the Florida Sentencing Guidelines, the minimum sentence the client is facing for all 34 counts (due to the stacking of these 28 possession counts, which are all are bootstrapped from each other, and converted to second degree felonies) is 33 years in state prison (assuming application of the guidelines, as charged and advocated by the State). Exhibit A.
5. The maximum penalty for all 34 counts (again, relying on the manner in which the counts have been charged) is 450 years in prison. The maximum penalty for counts 1 – 28 is 420 years in prison.

MEMORANDUM OF LAW

B. Legislative History of § 775.0847, Fla. Stat.
Section 775.0847, Fla. Stat., otherwise known as the Cyber Crimes Against Children Act of 2007, came to the State Senate as CS/SB 1004 (Exhibit B). On February 23, the Senate Legislative Staff prepared an analysis of Senate Bill. (Exhibit C). The additional penalties underlying the amendment were outlined in the “Summary.” However, the section entitled “Present Situation” did not discuss any failure of existing law to punish passive collectors of child pornography, rather the analysis discussed the need to make changes to the law affecting child predators.
Moreover, in the section entitled, “Effect of Proposed Changes,” the Staff Analysis dramatically misrepresents the effect of the existing law, as well as the actual effect of the new law, on passive collectors. For example, the Staff analysis states that, under the new reclassification law, a first time offender would be facing a minimum of 21 months in prison, rather than non-state prison sanctions. However, this is not accurate.
Pursuant to § 775.0847, Fla. Stat., a person charged with possession of child pornography must be in possession of at least 10 (or more) images of child pornography, in order for the reclassification statute to apply. Pursuant to Florida’s Sentencing Guidelines, before § 775.0847 was enacted, a person in possession of 10 images of child pornography would be facing one primary offense, in violation, of § 827.071(5), Fla. Stat., a third degree felony, which scores twenty-eight (28) points, with 9 additional counts of the same charge, which score 5.4 points each. The total points for a person with no prior record is 48.6 points, with the lowest permissible sentence of 36.45 months, or three years in prison. (Exhibit D).
With the reclassification method incorrectly applied (more accurately, multiplied) by the State, under § 775.0847(2), Fla. Stat., the same person (with 10 images) would be facing one primary offense, a second degree felony which scores 36 points, with nine 9 additional counts of the same charge, which score 18 points each. The total points for a person with no prior record, subject to this multiplication of the reclassification law, would be 170 points, with the lowest permissible prison sentence of 127.5 months, or 10.6 years in prison. (Exhibit E).
Thus, the lowest permissible sentence for possession of 10 images – before the reclassification statute was passed – was 3 years. Conversely, using the multiplication method of the State, the lowest permissible sentence would be 10.5 years. However, the Staff analysis regarding the effect of reclassification statute left the legislators with the false impression that affected parties, prior to the new law, were facing non-state prison, and under the new law, would face a minimum of only 21 months in prison. (Exhibit C).
C. Due Process Evidence – Offenders who Contact or Abuse Minors are Exposed to Less Time
Despite the fact that the legislative intent behind the passage of § 775.0847, Fla. Stat., was to target actual predators, rather than collectors, an ongoing anomaly in Florida law, exacerbated in the extreme by the passage of this new statute (more accurately, by the misapplication of this law by some prosecutors), is that the passive collector is punished more harshly than the predator.
Some examples from recent Appellate cases show the dichotomy well. In Montgomery v. State, 112 So. 3rd 781 (Fla. 2nd DCA 2013), the Defendant had been convicted of a violation of §827.04(3), Fla. Stat. (impregnating a minor by an adult over 21) and a violation of §800.04(4)(a), Fla. Stat. (lewd and lascivious battery). Both charges contemplated sexual intercourse by an adult with a minor. In that case, the Defendant was sentenced to 120 months in prison (ten years), which was higher than the minimum permissible guidelines sentence.
In Montgomery, he had sex with a minor and impregnated her, and his minimum sentence under the guidelines was lower than what he was actually sentenced to, which was only ten years in prison. Meanwhile, the client never touched a minor, yet his minimum permissible guideline score sheet sentence under the new law (as misapplied by the State) is 33 years in prison.
In Rogers v. State, 963 So. 3rd 328 (Fla. 2nd DCA 2007), the defendant was convicted of a violation of §800.04(4)(a) (lewd and lascivious battery), for having sex with a minor. The lowest permissible prison sentence shown on his guideline score sheet was 94.6 months. Thus, Rogers had sex with a minor, and his minimum sentence is less than ten years in prison. Meanwhile, the client collected illegal images, and his minimum sentence (as misapplied by the State) is 33 years in prison.
In Murphy v. State, 124 So. 3rd 323 (Fla. 1st DCA 2013), the defendant was charged with (1) using a computer service to solicit a person believed to be the parent of a child to engage in unlawful sexual conduct with a person believed to be the child, and (2) with thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a minor, contrary to § 847.0135(3)(b). Fla. Stat. The minimum permissible guideline sentence in that case was 42 months. Thus, Murphy was facing a minimum of only 42 months (3.5 years) for soliciting a father to allow him to have sex with his 14 year old daughter, and traveling to meet the girl, whereas the client is facing a minimum of 33 years for merely collecting pictures (assuming application of the guidelines, as charged and advocated by the State).
In Drawdy v. State, 136 So.3d 1209 (Fla. 2014), the defendant was convicted of sexual battery on a minor, contrary to § 794.011 Fla. Stat, and lewd and lascivious molestation, contrary to § 800.04, Fla. Stat. He was sentenced after a jury trial to 30 years in prison. Drawdy – who raped and molested his step-daughter – received less prison time than what the client is facing for collecting images (assuming application of the guidelines, as charged and advocated by the State).
Respectfully, a perusal of legal precedent in Florida will confirm that the cases set forth above are just a few of the many cases where persons convicted of aggravated sexual misconduct involving children are exposed under the sentencing guidelines to far less punishment than persons convicted of simple possession of child pornography, where § 775.0847 is implicated (and misapplied by the State). Such results are directly contradictory to the statutory intent of the Florida Legislature and moreover, the dichotomy created by such misapplication leads to criminal sentences for persons subject to the new law that are fundamentally unfair, and cruel and unusual, in violation of both the State and U.S. Constitutions.
A review of the potential sentences for adults in Florida, charged with actually praying upon or molesting children, reveals that such predators face less time than what the client is facing for simply being in possession of images. For example, the crime of traveling to meet a minor for unlawful sex is a second degree felony, pursuant to § 847.0135(4), Fla. Stat., and is assigned a Level 7 offense severity ranking, under Florida’s Criminal Punishment Code. Absent grounds for a downward departure sentence, the minimum sentence for someone who travels to meet a minor, with the intention of having sex with that minor, is just 21 months in prison. Yet, the client, who never had contact of any kind with a minor, faces a minimum of 33 years in prison (assuming application of the guidelines, as charged and advocated by the State).
An adult charged with lewd and lascivious molestation of a child under age 12, in violation of § 800.04(5)(b), Fla. Stat., faces a mandatory 25 years and up to life in prison, pursuant to 775.082(3)4.a, Fla. Stat. In the case at hand, the client, who never molested or even touched a child, faces a minimum of 33 years in prison and up a life sentence, for possession of images (assuming application of the guidelines, as charged and advocated by the State).
In Florida, a defendant charged with attempted (unpremeditated or premeditated) murder with a firearm, who actually shoots the victim, faces a 25 year minimum mandatory sentence, and up to life in prison. If no firearm is used, the bottom of the Sentencing Guidelines, for a person with no prior record, who causes severe injury to a victim, is 78 months (6 years and 2 months) in prison. Thus, if the client had attempted to murder a child, he would be facing far less time than he is facing for the possession of the images in this case (assuming application of the guidelines, as charged and advocated by the State).
In Florida, the offense of kidnapping a child and terrorizing them, or committing a sex offense against them, is a Level 10 offense, under Florida’s Criminal Punishment Code (which is the highest level offense, other than a capital offense). If a person with no record is convicted of this offense, with no sexual penetration or victim injury, and no other sentence enhancers, the bottom of the sentencing guidelines requires a sentence of 66 months (that is, 5 years and 6 months). Again, this minimum sentence is 28 years less than the minimum sentence that the client is facing here, for possession of images (assuming application of the guidelines, as charged and advocated by the State).
D. Double Jeopardy and Multiplicity
Section § 775.0847(2)(a), Fla. Stat., only applies if an offender possesses 10 or more images of any form of child pornography, regardless of content. The inclusion of this triggering language leads to a situation where persons, such as the client, are prosecuted for possession of child pornography under § 827.071, and possession of the same child pornography under § 775.0847(2)(a). Such an application offends concepts of constitutional double jeopardy, because the offender is being prosecuted and punished twice for the same conduct.
In other words, whereas the unit of prosecution for the second degree felony should be the possession of “10 or more” images, the State has asserted a unit of prosecution of a single image can be prosecuted, repeatedly (indeed, here, 28 times). Thus, instead of applying the statutory integrated element of possession of “10 or more,” which clearly contemplates using a pool of images to bootstrap the conduct into a single second degree felony, the State disregards that language, and treats every, individual image, as a second degree felony.
In doing so, the single image is then prosecuted 28 times, as each image is used as a means to prosecute every other image. Image #1 is used to prosecute images #2-28. Image #2 is used to prosecute images #1 and #3-28, and so on. Each count is thus merged into each and every other count. In each instance, the same images are used to punish the client, for the identical conduct, and hence violate double jeopardy and multiplicity prohibitions.
Because this stacking of multiple second degree offenses involved the exact same images, they do not require proof of a fact the other does not. Thus, this stacking, and double (actually 28 times) counting, violates the double jeopardy requirements of Blockburger v. United States, 284 U.S. 299 (1932). Blockburger also bars successive prosecutions for greater and lesser-included offenses. Rutledge v. U.S., 517 U.S. 292, 307 (1996). A lesser-included offense is one that does not require proof of elements beyond those required by the greater offense. Brown v. Ohio, 432 U.S. 161, 167-68 (1977). Clearly, that rule applies here, given the fact the third degree felony is not just a “lesser” offense of the second degree felony – it is the exact same offense.
A similar problem occurred with another Florida statute that contained “atypical” language attaching importance to the number of violations during a specific time period, in Neal v. State, 109 So. 3rd 1245 (Fla. 2nd DCA 2013). In Neal, a defendant was prosecuted by two different Circuits for violating § 817.61, Fla. Stat., which barred fraudulent use of the same credit card more than two times within the same six-month period. Allegedly, each of the “more than two times” occurred in different judicial circuits. The defendant pled to one charge in one circuit, and went to trial on another charge in a different circuit.
The defendant was convicted at trial, but the Second District Court of Appeals reversed his conviction, holding that his prosecution and conviction on the second case violated double jeopardy, because the conduct alleged in both cases were subsumed within the other. Thus, the Second District Court of Appeals concluded “that the unusual structure of section 817.61 requires the consolidation of all unauthorized uses of the same credit card within a six-month period into a single offense.” Neal, 109 So. 3rd at 1249.
Similarly here, the “10 or more images” language from § 775.0847, Fla. Stat., necessarily should subsume all subsequent charges, for any defendant who is in possession of “10 or more,” such that those 10, 11, 12, 20, 28, 50, 100 or more images, are properly grouped into a single 2nd degree felony – just like the express statutory language states. Instead, here, the State has reclassified every count (image) as a second degree felony.
This Court should view this double jeopardy argument through the same lens as the District Courts of Appeal have in other cases involving reclassification statutes or cases where multiple offenses were charged for the same underlying offense. For example, in Benjamin v. State, 8 So. 3rd 460 (Fla. 4th DCA 2013), the defendant was convicted of two counts of aggravated battery with a firearm, his convictions were re-classified pursuant to § 775.087(1)(b), Fla. Stat., and he was sentenced accordingly. The appellate court reversed, holding that “[b]ecause the use of a firearm is an essential element of the crime for which appellant was found guilty, the trial court erred when it reclassified appellant’s convictions…” Id.
Other such cases include, Boyd v. State, 17 So. 3rd 812 (Fla. 4th DCA 2009), where the court held that dual convictions for possession of a firearm by a convicted felon and possession of ammunition by a convicted felon violate double jeopardy; Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004), where the court held that sentencing the defendant on both battery and violation of domestic violence injunction violated double jeopardy because all statutory elements of battery were contained within the offense of violating domestic violence injunction. See also Dozier v. State, 677 So. 2d 1352 (Fla. 2nd DCA 1996), and Hollis v. State, 659 So. 2d 1257 (Fla. 4th DCA 1995).
Similarly, here, the reclassification permitted by § 775.0847 involves the same exact conduct as that prohibited by the underlying statute, § 827.071, possession of child pornography, and as applied in this case, it violates double jeopardy.
As stated earlier, that constitutional violation could have been remedied by an application of the statute that either subsumed all possession counts into one reclassified second degree felony. Not only would the guidelines under those alternative applications be far closer to the sentencing exposure the Senate Staff indicated, it would prevent the disproportionate and cruel and unusual life imprisonment for a passive collector with no prior record.
E. Statutory Construction – “10 or More”
As noted above, aside from the double jeopardy and multiplicity defects in the Information, application of the fundamental principles of statutory construction pretermit the State from multiplying their third degree felonies into multiple second degree felonies.
One need look no further than the “10 or more images” language from § 775.0847, Fla. Stat., which plainly incorporates and subsumes all subsequent charges, for any defendant who is in possession of “10 or more” images. What does the plain language of “10 or more” mean? Clearly, and to a mathematical certainty, it means any number of images ranging from 10 or more. That means it includes 10 images, 11 images, 28 images, or even 1,000 images. The language could not be more clear, or simpler.
Florida has engrafted its own provisions for statutory construction, adopting the common law historically applicable to statutory construction, and the Doctrine of Lenity. Specifically, § 775.021, Fla. Stat., Rules of Construction, provides as follows:
The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

(emphasis added).

Here, as noted, § 775.0847 reads plainly – and clearly embraces any number of images, as a single second degree felony, for any defendant who has “10 or more.” However, even if the statute was not clear, and even if it has some ambiguity, § 775.021 would require the courts to strictly construe it, and construe it “most favorably to the accused.” Under that principle of strict statutory construction, the client cannot properly be charged with multiple second degree felonies.
Moreover, as noted, the terms “10 or more” could not be more clear. However, if that were not so, “When a term is undefined by statute, ‘[o]ne of the most fundamental tenets of statutory construction’ requires that we give a statutory term ‘its plain and ordinary meaning.’ When necessary, the plain and ordinary meaning ‘can be ascertained by reference to a dictionary.’” Rollins v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000)(emphasis added), citing Green v. State, 604 So.2d 471, 473 (Fla.1992); in accord State v. J.H.B., 415 So.2d 814, 815 (Fla. 1st DCA 1982)(common or ordinary meaning applies, when the term is not defined by the statute); State v. Bryant, 953 So.2d 585, 587 (Fla. 1st DCA 2007)(common or ordinary meaning applies, when the term is not defined by the statute).
Here, no dictionary reading of the term “10 or more” could possibly lead to any definition than the simply mathematical one we have discussed.
In short, applying simple and time-honored principles of statutory construction, separate and apart from the principles of double jeopardy and multiplicity, the Information improperly charges the client with 27 more second degree felonies than can properly be charged.
F. § 775.0847, Fla. Stat. is Facially Unconstitutional
As noted above, applying well-established principles of statutory construction, Section 775.0847, Fla. Stat. prohibits the multiple second degree felonies charged by the State.
Even if that were not so, Section 775.0847, Fla. Stat. is facially unconstitutional, in that it is vague and ambiguous. The clear wording of § 827.071(5)(a), which is the underlying felony upon which the client is charged in Counts 1 – 28, refers to simple possession of child pornography as a third degree felony, punishable as provided by §§ 775.082, 775.083, or 775.084. Nowhere in §827.071(5)(a), Fla. Stat. does it refer to § 775. 0847, Fla. Stat., and no reasonable person would understand that a violation of § 827.071(5)(a), would constitute anything other than a third degree felony. As such, no due process notice is provided.
Given that the underlying criminal statute does not reference the reclassification statute within its terms, there is a constitutional lack of notice of any linkage, to the extent that no reasonable person, when considering their own conduct, would be placed on sufficient notice that possession of “10 or more images,” including any one image of a certain variety of child pornography in violation of § 827.071(5)(a) Fla. Stat., would lead to reclassification under §775.0847, Fla. Stat. – let alone that it would lead to the charging of as many second degree felonies as the State elected to file.
A statute is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited and, thus, invites arbitrary and discriminatory enforcement. The benchmark for testing vagueness is whether a criminal statute affords a person of ordinary or common intelligence fair notice of what constitutes forbidden conduct. See Tate v. State, 864 So. 2d 44 (Fla. 4th DCA 2003). Section 775.0847, Fla. Stat., fails in this regard and must be voided.
G. § 775.0847, Fla. Stat. is Unconstitutional as Applied
Section 775.0847, Fla. Stat., is unconstitutional, as applied by the State of Florida in this case, wherein it was used to reclassify every third degree felony charging simple possession of child pornography under § 827.071(5)(a), Fla. Stat., to a second degree felony, thus disproportionately and without rational basis increasing the client’s exposure to a minimum of 33 years and a maximum of 450 years in prison. Any application of the reclassification law that is contrary to legislative intentions, is disproportionate, or which has no rational basis, as applied to the defendant, would render the statute unconstitutional, as applied. See State v. Robinson, 873 So. 2d 1205 (Fla. 2004).
As recited above, the intention of the legislature in passing the law in no way contemplated life in prison for a person such as the client, a first time offender, accused of mere possession of child pornography, and not of actual abuse of a child. This is clear from the comments made by the legislators, as discussed above, in addition to the Staff Analysis of the proposed new law, which indicated that a first time offender accused of possession, after application of the new law, would only be exposed to 21 months in prison. See White v. State, 714 So.2d 440 (Fla. 1998) (While we recognize that staff analyses are not determinative of final legislative intent, they are, nevertheless, “one touchstone of the collective legislative will.”) See also Sun Bank/South Florida, N.A. v. Baker, 632 So. 2d 669,671 (Fla. 4th DCA 1994).
If the intention of the legislature was that a first time offender subject to the new law would be facing 21 months in prison, then application of the new statute could not legally or constitutionally include reclassification of every possession count. Rather, a 21 month sentence is far more consistent with an application of the statute (in a fashion that would pass constitutional muster) wherein all possession counts would be subsumed within one reclassified second degree felony. Another reasonable construction would be that all possession counts would be subsumed within one second degree felony. See Lafferty v. State, 114 So. 3rd 1115 (Fla. 2nd DCA 2013) (a necessarily lesser-included offense by definition is subsumed by the primary offense), and Wilson v. State, 769 So.2d 1150 (Fla. 5th DCA 2000) (simple possession of cocaine is subsumed within the greater offense of possession of cocaine within 1,000 feet of a place of worship with intent to sell or deliver).
WHEREFORE, the client requests that this Honorable Court dismiss all but one of Counts 1 – 28 of the Information in the above-styled cause.