Fort Lauderdale Criminal Attorney Blog
As our technology rapidly evolves, so too must our justice system. As we are often faced with ever-newer technological frontiers, courts are often grappling with how the law should be applied. 
One such case recently before the Florida Supreme Court highlights this. In Smith v. State, the court was asked to resolve a conflict between this ruling handed down by the Fourth District Court of Appeal in 2015 and an earlier ruling in 2013 in Biller v. State by Florida’s Fifth District Court of Appeal. At issue was whether the use of a file-sharing program for purposes of disseminating child pornography in fact violates the statutory prohibition on transmitting child porn.
The Florida Supreme Court ruled: Yes, it does. That means the precedent set by the 5th DCA is overturned, and those who transmit illegal sexual images of children via file-sharing program can be charged under F.S. 847.0137.
According to court records in Smith, defendant pleaded guilty back in 2011 to transmission of child pornography. He had reportedly used a file-sharing program designed to allow one-on-one access to stored data. In a specific computer file, defendant loaded pornographic images. He then sent a “friend” request to an undercover detective working for the Palm Beach County Sheriff’s Office. This then authorized the detective to access certain files defendant had chosen to share with others. Detective then downloaded various images of child pornography from these files. Defendant had no knowledge of whether the files were actually downloaded by an individual once he’d sent a “friend” request. He did later admit under questioning to detectives that he’d been trading in child pornography for more than a decade.
He was sentenced to collectively 10 years in prison, followed by 15 years of sex offender probation, after pleading guilty to several charges.
However, after the 5th DCA issued its ruling in Biller, defendant filed for post-conviction relief. He argued that because the court in Biller ruled that file-sharing did not meet the criteria of F.S. 847.0137, his conviction should be overturned. He argued he’d been denied due process for conviction of a crime that didn’t actually exist.
On appeal to the 4th DCA, justices there denied relief and rejected the 5th DCA’s interpretation of the law. The 4th DCA ruled the 5th DCA had improperly focused on the word “send” in looking at the meaning of the word “transmission.” The 5th DCA had held that in order to “transmit,” a person had to either “send or caused to be delivered.”
The 4th DCA ruled that a file-sharing program in which the originator of the files grans access to a receiver who is then able to download images over the internet through an an electronic device does in fact meet the statutory definition of the term, “transmission.”
Defendant appealed to the state supreme court. The objective of the state supreme court in a case like this is to interpret the legislative intent. In cases where the language of the law is clear and unambiguous, the courts won’t look beyond the plain language to interpret the intent.
Defense argued that, contrary to the language used in the statute, he did not “send or cause to be delivered” these images.
The court ruled, however, that the state clearly and unambiguously makes illegal the conduct for which defendant was convicted. Defendant had sent pornographic images of children electronically to a “place,” and made those images accessible to authorized third parties. By his purposeful acts, the court ruled, defendant had caused the images to be delivered. Therefore, he did violate the law.
Our Fort Lauderdale criminal defense attorneys know allegations such as these are serious. While it is sometimes fruitful to argue technicalities on appeal, it’s often much better if you can avoid a conviction in the first place. That’s our first priority.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
Smith v. State, Sept. 8, 2016, Florida Supreme Court
More Blog Entries:
Patterson v. Florida – Due Process Implications of Destroyed Evidence, Sept. 6, 2016, Fort Lauderdale Criminal Defense Attorney Blog
