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Florida Statute 847.0138 | Lawyer Caselaw & Research
F.S. 847.0138 Case Law from Google Scholar
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Link to State of Florida Official Statute Google Search for Amendments to 847.0138

The 2023 Florida Statutes (including Special Session C)

Title XLVI
CRIMES
Chapter 847
OBSCENITY
View Entire Chapter
F.S. 847.0138
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.

F.S. 847.0138 on Google Scholar

F.S. 847.0138 on Casetext

Amendments to 847.0138


Arrestable Offenses / Crimes under Fla. Stat. 847.0138
Level: Degree
Misdemeanor/Felony: First/Second/Third

S847.0138 2 - CRUELTY TOWARD CHILD - RENUMBERED. SEE REC # 9481 - F: T
S847.0138 2 - OBSCENE MATERIAL-DISTRIB - TRANSMIT INFO HARMFUL TO MINORS - F: T
S847.0138 3 - CRUELTY TOWARD CHILD - RENUMBERED. SEE REC # 9482 - F: T
S847.0138 3 - OBSCENE MATERIAL-DISTRIB - OUT OF STATE TRANSMIT INFO HARMFUL TO MINORS - F: T



Annotations, Discussions, Cases:

Cases from cite.case.law:

WEITZ, DOC v. STATE, 275 So. 3d 707 (Fla. App. Ct. 2019)

. . . Stat. (2011), and for transmitting material harmful to minors via electronic mail, see § 847.0138(2), . . . Nothing in either section 934.215 or in section 847.0138(2) explicitly authorizes multiple punishments . . . The elements of section 847.0138(2) are that the defendant (1) knowingly sent an image, information or . . . 934.215 does not require proof that any content was sent to anyone via any mechanism, and so section 847.0138 . . . Finally, the State asserts that section 934.215 does require an element that section 847.0138 does not . . .

PASICOLAN, v. STATE, 268 So. 3d 279 (Fla. App. Ct. 2019)

. . . Statutes (2013) (Count II); one count of transmission of material harmful to minors, contrary to section 847.0138 . . .

IN RE STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT, 257 So. 3d 370 (Fla. 2018)

. . . amended in 2018. 11.21 TRANSMISSION OF MATERIAL HARMFUL TO MINORS BY ELECTRONIC DEVICE OR EQUIPMENT § 847.0138 . . . TRANSMISSION OF MATERIAL HARMFUL TO MINORS BY ELECTRONIC DEVICE OR EQUIPMENT - 847.0138(2) CATEGORY ONE . . .

JONES, v. STATE, 251 So. 3d 307 (Fla. App. Ct. 2018)

. . . Statutes (2012), and to transmission of material harmful to minors (count three), in violation of section 847.0138 . . .

BROWN, v. STATE, 238 So. 3d 415 (Fla. App. Ct. 2018)

. . . I concur in the decision to affirm Appellant's judgment and sentence for violating section 847.0138(2 . . . Instructions in Criminal Cases might want to consider amending the standard jury instruction for section 847.0138 . . . are key components of the statutory definition of "harmful to minors"-which is the crux of section 847.0138 . . .

FURLOW, DOC v. STATE, 237 So. 3d 443 (Fla. App. Ct. 2018)

. . . case may have supported a conviction for transmission of material harmful to a minor under section 847.0138 . . . State, 886 So.2d 399, 403 (Fla. 1st DCA 2004) (explaining that section 847.0138 "pertains to harmful . . . But the State did not charge Furlow with a violation of section 847.0138(2), nor did it seek a jury instruction . . . based on section 847.0138(2). . . .

WEITZ, v. STATE, 229 So. 3d 872 (Fla. Dist. Ct. App. 2017)

. . . Weitz’s dual convictions for transmitting material harmful to minors under section 847.0138, Florida . . . Exantus did not address a charge of transmitting harmful material to a minor in violation of section 847.0138 . . . harmful material "to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138 . . .

PASICOLAN, v. STATE, 240 So. 3d 792 (Fla. App. Ct. 2017)

. . . Statutes (2013) (Count II); one count of transmission of material harmful to minors, contrary to section 847.0138 . . .

GOSLING, v. STATE, 205 So. 3d 860 (Fla. Dist. Ct. App. 2016)

. . . 810.145(8); s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138 . . .

SMITH, v. STATE, 204 So.3d 18 (Fla. 2016)

. . . the definition of “transmit” in section 847.0137(l)(b) with the definition of “transmit” in section 847.0138 . . . Section 847.0138 prohibits "[t]ransmission of material harmful to minors to a minor by electronic device . . . defined as “to send to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138 . . .

DUCLOS- LASNIER, v. STATE, 192 So. 3d 1234 (Fla. Dist. Ct. App. 2016)

. . . He maintains that photos sent as text messages do not violate section 847.0138(2), Florida Statutes ( . . . ” as “to send to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138 . . . See § 847.0138(3) (defining the offense as “transmitting an image, information, or data that is harmful . . . material harmful to minors to a .minor by electronic device or equipment prohibited; penalties.” § 847.0138 . . . sentences for counts four and five and hold that texting a harmful image to a minor violates section 847.0138 . . .

SENGER, v. STATE, 200 So. 3d 137 (Fla. Dist. Ct. App. 2016)

. . . 800.04; s. 825.1025; s. '827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138 . . .

STATE v. LOSADA,, 175 So. 3d 911 (Fla. Dist. Ct. App. 2015)

. . . Legislature was aware of the application of the “a/any” test by Florida courts when it enacted section 847.0138 . . . in one instant message when referencing “an image” (instead of “any image”) when it enacted section 847.0138 . . . In Alien, while noting that the “a/any” test is not disposi-tive, we applied it to section 847.0138, . . . an,” rather than “any,” and was aware of the application of the “a/any” test when it enacted section 847.0138 . . . Both statutes at issue in the instant case were enacted in 2001, the same year that section 847.0138 . . .

In STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES- REPORT NO., 163 So. 3d 478 (Fla. 2015)

. . . adopted in 2015. 11.21 TRANSMISSION OF MATERIAL HARMFUL TO MINORS BY ELECTRONIC DEVICE OR EQUIPMENT § 847.0138 . . .

SMITH, v. STATE, 190 So. 3d 94 (Fla. Dist. Ct. App. 2015)

. . . images to an individual can be gleaned from a comparison of the definition of “transmit” in section 847.0138 . . . defined as “to Send to a specific individual known by the deféndant to be a minor via electronic mail.” § 847.0138 . . .

L. S. a v. STATE, 120 So. 3d 55 (Fla. Dist. Ct. App. 2013)

. . . They cannot purchase sexually explicit materials, section 847.0138, Florida Statutes (2011), Simmons . . .

GOSLING, v. STATE, 97 So. 3d 287 (Fla. Dist. Ct. App. 2012)

. . . 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138 . . . 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(6); s. 847.0137; s. 847.0138 . . .

ALLEN, v. STATE, 82 So. 3d 118 (Fla. Dist. Ct. App. 2012)

. . . Jarrod Richard Allen appeals the denial of his motion to dismiss eighteen counts of violating section 847.0138 . . . Allen argues on appeal that section 847.0138(2) allows for only one unit of prosecution when multiple . . . twenty counts of transmission of material harmful to a minor by electronics, in violation of section 847.0138 . . . ” as “to send to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138 . . . Because, under section 847.0138(2), each attached and transmitted photograph is a separate, punishable . . .

KING, v. STATE, 59 So. 3d 272 (Fla. Dist. Ct. App. 2011)

. . . jury convicted the defendant of transmission of material harmful to a minor in violation of section 847.0138 . . . The parties agreed to a jury instruction tracking section 847.0138. . . . . § 847.0138(2), Fla. Stat. (2007). . . . .” § 847.0138(l)(b), Fla. Stat. (2007). . . . The defendant argues that the jury essentially was asking the trial court if- “send,” which section 847.0138 . . .

W. MUNROE, v. STATE, 28 So. 3d 973 (Fla. Dist. Ct. App. 2010)

. . . 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding s. 847.0135(4); s. 847.0137; s. 847.0138 . . .

STATE v. C. SHOLL,, 18 So. 3d 1158 (Fla. Dist. Ct. App. 2009)

. . . Procedure 3.190(c)(4), insofar as the order granting motion to dismiss dismissed the charge under section 847.0138 . . . was charged with transmitting material harmful to a minor via electronic device, contrary to section 847.0138 . . . See §§ 847.001(6), 847.0138 Fla. Stat. (2008). . . . State, 944 So.2d 317 (Fla.2006), claiming it held section 847.0138 applied only to sexually indecent . . . Sholl’s selective reading of Simmons ignores language directly applying section 847.0138 to his circumstances . . . In Simmons, the Supreme Court addressed whether section 847.0138 violated the Fii’st Amendment’s protection . . .

D. MILLER, v. STATE, 971 So. 2d 951 (Fla. Dist. Ct. App. 2007)

. . . . 796.03; s. 796.035; s. 800.04; s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135; s. 847.0137; s. 847.0138 . . .

SIMMONS, v. STATE, 944 So. 2d 317 (Fla. 2006)

. . . Florida Statutes (2002), and for transmission of material harmful to a minor in violation of section 847.0138 . . . On appeal, Simmons brought facial constitutional challenges to sections 847.0135 and 847.0138. . . . Simmons challenged section 847.0138 as violating the First and Fourteenth Amendments of the United States . . . Simmons, 886 So.2d at 405 (quoting § 847.0138(l)(b)). . . . See § 847.0138(2), Fla. Stat. (2002). . . .

A. WEGNER, v. STATE, 928 So. 2d 436 (Fla. Dist. Ct. App. 2006)

. . . Additionally, a similar concern was addressed in a challenge to section 847.0138, Florida Statutes (2002 . . . Section 847.0138 prohibits the transmission of materials harmful to a minor; in Simmons, the transmission . . .

SIMMONS, v. STATE, 886 So. 2d 399 (Fla. Dist. Ct. App. 2004)

. . . However, I dissent from the opinion relating to section 847.0138, Florida Statutes (2002). . . . Also, these deficiencies cause section 847.0138 impermissibly to transgress the Commerce Clause. . . . A “minor” is defined in section 847.0138 as anyone under 18 years of age. . . . Vagueness Also, section 847.0138 is too vague to pass constitutional muster. . . . For these reasons, I dissent from the majority opinion relating to section 847.0138. . . . See §§ 847.0138(l)(b), 847.0138(3), Fla. Stat. . . . See § 847.0138(l)(b), Fla. Stat. . . . That is what section 847.0138 does. See Rowan v. . . . Accordingly, section 847.0138 is narrowly tailored and not vague. III. . . . See § 847.0138(3), Fla. Stat. . . .