847.0138
Transmission of material harmful to minors to a minor by electronic device or equipment prohibited; penalties.
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847.0138 Transmission of material harmful to minors to a minor by electronic device or equipment prohibited; penalties.—
(1) For purposes of this section:
(a) “Known by the defendant to be a minor” means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.
(b) “Transmit” means to send to a specific individual known by the defendant to be a minor via electronic mail.
(2) Notwithstanding ss. 847.012 and 847.0133, any person who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The provisions of this section do not apply to subscription-based transmissions such as list servers.
History.—s. 5, ch. 2001-54; s. 8, ch. 2009-194.
Notes of Decisions
Cited in 28
cases (4 in the last 5 years), 2004–2025 · leading case: Simmons v. State
Simmons v. State (2004)
“2003) in regard to the definition of `harmful to minor' are not applicable to this statute that regulates personal, one-on-one e-mail communication"; "In comparison, § 847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions"; and " § 847.”
Simmons v. State (2006)
“0135, Florida Statutes (2002), [1] and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002).”
State v. Sholl (2009)
“190(c)(4), insofar as the order granting motion to dismiss dismissed the charge under section 847.0138, Florida Statutes (2007), because, *1165 as both parties now agree, the double jeopardy claim was premature.”
Allen v. State (2012)
“” § 847.0138, Fla. Stat. “Thus, electronic mail is the only regulated transmission mechanism,” and the Florida Supreme *121 Court recognizes “electronic mail” to be “both email and electronic mail sent by instant messaging.”
King v. State (2011)
“A jury convicted the defendant of transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2007).”
State of Florida v. Adonis Losada (2015)
“In Alien, while noting that the “a/any” test is not disposi-tive, we applied it to section 847.0138, Florida Statutes (2001), which prohibits the transmission of “an image” harmful to a minor to an individual known to be a minor.”
Weitz v. State (2017)
“Weitz’s dual convictions for transmitting material harmful to minors under section 847.0138, Florida Statutes (2012), and unlawfully using a two-way communications device under section 934.”
Wegner v. State (2006)
“0135(3) to contain a mens rea requirement is not fatal because criminal statutes are presumed to include a knowledge requirement in the absence of a contrary legislative statement).”
In Re: Standard Jury Instructions in Criminal Cases-Report 2018-04. (2018)
“(Defendant) knowingly sent an image, information or data that [he] [she] knew or believed to be harmful to minors.”
Duncan Jason Smith v. State of Florida (2016)
“Section 847.0138 prohibits "[t]ransmission of material harmful to minors to a minor by electronic device or equipment[.”
Duclos-Lasnier v. State (2016)
“” § 847.0138 (emphasis added). The Florida Supreme Court has explained that “in determining legislative intent, we must give due weight and effect to the title of the section.”
Duncan Jason Smith v. State (2015)
“0137(l)(b), Florida Statutes (2010), to be broader than merely purposely sending images to an individual can be gleaned from a comparison of the definition of “transmit” in section 847.0138," Florida Statutes. That section prohibits “transmission of material harmful to minors to…”
— 847.0138(1)(a) — 2 cases
Simmons v. State (2004)
“2003) in regard to the definition of `harmful to minor' are not applicable to this statute that regulates personal, one-on-one e-mail communication"; "In comparison, § 847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions"; and " § 847.”
Simmons v. State (2006)
“0135, Florida Statutes (2002), [1] and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002).”
— 847.0138(1)(b) — 6 cases
Simmons v. State (2006)
“0135, Florida Statutes (2002), [1] and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002).”
Simmons v. State (2004)
“2003) in regard to the definition of `harmful to minor' are not applicable to this statute that regulates personal, one-on-one e-mail communication"; "In comparison, § 847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions"; and " § 847.”
Weitz v. State (2017)
“Weitz’s dual convictions for transmitting material harmful to minors under section 847.0138, Florida Statutes (2012), and unlawfully using a two-way communications device under section 934.”
Duclos-Lasnier v. State (2016)
“” § 847.0138 (emphasis added). The Florida Supreme Court has explained that “in determining legislative intent, we must give due weight and effect to the title of the section.”
Duclos-Lasnier v. State (2016)
— 847.0138(2) — 17 cases
Allen v. State (2012)
“” § 847.0138, Fla. Stat. “Thus, electronic mail is the only regulated transmission mechanism,” and the Florida Supreme *121 Court recognizes “electronic mail” to be “both email and electronic mail sent by instant messaging.”
Simmons v. State (2006)
“0135, Florida Statutes (2002), [1] and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002).”
In Re: Standard Jury Instructions in Criminal Cases-Report 2018-04. (2018)
“(Defendant) knowingly sent an image, information or data that [he] [she] knew or believed to be harmful to minors.”
King v. State (2011)
“A jury convicted the defendant of transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2007).”
— 847.0138(3) — 3 cases
Simmons v. State (2004)
“2003) in regard to the definition of `harmful to minor' are not applicable to this statute that regulates personal, one-on-one e-mail communication"; "In comparison, § 847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions"; and " § 847.”
Simmons v. State (2006)
“0135, Florida Statutes (2002), [1] and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002).”
Duclos-Lasnier v. State (2016)
“” § 847.0138 (emphasis added). The Florida Supreme Court has explained that “in determining legislative intent, we must give due weight and effect to the title of the section.”
— 847.0138(l)(b) — 4 cases
Allen v. State (2012)
“” § 847.0138, Fla. Stat. “Thus, electronic mail is the only regulated transmission mechanism,” and the Florida Supreme *121 Court recognizes “electronic mail” to be “both email and electronic mail sent by instant messaging.”
Duncan Jason Smith v. State of Florida (2016)
“Section 847.0138 prohibits "[t]ransmission of material harmful to minors to a minor by electronic device or equipment[.”
King v. State (2011)
“A jury convicted the defendant of transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2007).”
Duncan Jason Smith v. State (2015)
“0137(l)(b), Florida Statutes (2010), to be broader than merely purposely sending images to an individual can be gleaned from a comparison of the definition of “transmit” in section 847.0138," Florida Statutes. That section prohibits “transmission of material harmful to minors to…”
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