82 So. 3d 118
Fla. Dist. Ct. App.2012Background
- Allen appealed the denial of his motion to dismiss 18 counts of transmitting images harmful to minors under §847.0138(2) (2008).
- He argued only two instant messages were sent, so there should be two units of prosecution, not twenty.
- An undercover detective posing as a minor interacted with Allen via Yahoo! Messenger, receiving two messages with ten images each.
- Detectives presented that each of the twenty images was a separate picture downloaded individually by the detective.
- The trial court denied the motion to dismiss, interpreting the statute to allow twenty counts.
- Allen pled guilty to all twenty counts, reserving appellate rights; he was sentenced to 180 months in prison plus probation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §847.0138(2) permits multiple prosecutions for multiple images in one transmission. | Allen | State | Twenty counts allowed; each image a unit |
| Whether the statute's use of 'an image' implies separate prosecutions for each image. | Allen | State | Yes; separate prosecutions permitted |
| Whether the statute's 'a/any' construction applies to this offense. | Allen | State | a/any test supports multiple units for attached images |
Key Cases Cited
- Grappin v. State, 450 So.2d 480 (Fla. 1984) (a/any distinction favors multiple prosecutions for separate items)
- State v. Watts, 462 So.2d 813 (Fla. 1985) (any precedes item; single prosecution per episode)
- Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990) (applies a/any to possess multiple items in one context)
- Bautista v. State, 863 So.2d 1180 (Fla. 2003) (a/any test not infallible; legislative intent governs unit of prosecution)
- Pierce v. State, 681 So.2d 873 (Fla. 1st DCA 1996) (illustrates unit-of-prosecution analysis under a/any framework)