JAMES CLANCY BRADY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's conduct did not constitute a violation of section 800.04(3), Florida Statutes.
Appellant was charged with committing a lewd and lascivious act in the presence of a child by presenting photographs of his genitalia. Appellant argue…
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PER CURIAM.
Appellant was charged in three separate informations with committing a lewd and lascivious act in the presence of a child under the age of sixteen, contrary to section 800.04(3), Florida Statutes (1987). Specifically, it was charged in each information that appellant presented to a child a photograph of his genitalia.
Appellant filed a sworn motion to dismiss, arguing that the alleged conduct actually constitutes a violation of section 847.011, but not section 800.04(3). Appellant’s motion set forth the alleged facts upon which the information was based, stating that appellant threw or deposited the nude photographs from an automobile and that these photographs were then picked up by the named juveniles. These facts were not denied by the state’s response. The trial court denied the motion, and the appellant pled nolo contendere to all charges, specifically reserving the right to appeal the denial of the motion to dismiss.
We find that the appellant’s conduct in the instant case does not constitute a violation of section 800.04(3), as appellant did not commit a lewd act in the presence of a child. We do not decide whether appellant’s conduct is violative of section 847.-011.
REVERSED.
SMITH, THOMPSON and MINER, JJ., concur.
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Broderick Cameron Furlow v. State, 237 So. 3d 443 (Fla. 2d DCA 2018)…d not support a conviction for lewd or lascivious exhibition under section 800.04 and explaining that it would support a charge under section 847.01, Florida Statutes (1957), which prohibited showing a lewd photograph to a minor); Brady v. State, 553 So. 2d 316, 317 (Fla. 1st DCA 1989) (concluding that throwing nude photographs from an automobile did not constitute lewd or lascivious exhibition under section 800.04 because the defendant "did not commit a lewd act in the presence of a child"). The legis…