STATE OF FLORIDA, APPELLANT,
v.
THOMAS PARRELLA, APPELLEE
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Florida appealed the dismissal of three of four child pornography possession counts against Thomas Parrella. The court affirmed, holding that the statute's use of the word "any" to describe prohibited items indicates a single unit of prosecution for multiple items of the same contraband possessed in a single criminal episode.
A single unit of prosecution applies to possession of multiple items of child pornography in the same criminal episode. The legislature's use of the word "any" in describing the prohibited items indicates intent to treat all contraband as a single offense within one criminal episode.
[1] The allowable units of prosecution under a statute are determined by legislative intent.
[2] When a statute proscribing contraband uses the article "any" to describe the prohibited items, it indicates a legislative intent for all such contraband to be viewed as a…
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Join FLexlaw to unlock all legal intelligence“If the latter, the courts have discerned a legislative intent that each item of contraband be the basis for a separate unit of prosecution. If the former, the courts have discerned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended.”
Establishes the core interpretive rule: use of "a" suggests multiple units, use of "any" suggests a single episodic unit of prosecution.
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Join FLexlaw to unlock all legal intelligenceTwo undercover detectives investigating child pornography went to Parrella's home posing as buyers. Parrella showed them portions of four different vi…
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OWEN, WILLIAM C., Jr., Senior Judge.
During an investigation into child pornography, two undercover detectives went to the home of Thomas Parrella pretending to be interested in buying videotapes of child pornography. Parrella showed the detectives portions of four different videotapes depicting sexual acts involving children. As a result, Parrella was charged with four counts of violation of section 827.071(4), Florida Statutes (1997)1 . The state appeals from an order granting Parrella’s motion to dismiss counts II, III, and IV. We affirm.
The determination of the allowable units of prosecution under a statute proscribing conduct necessarily involves a question of legislative intent. As a means of discerning legislative intent as to the unit of prosecution, where the offender possessed multiple articles of the same type of contraband, the courts have focused on whether the legislature used the word “any” or the word “a” in describing the contraband. If the latter, the courts have discerned a legislative intent that each item of contraband be the basis for a separate unit of prosecution. If the former, the courts have discerned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended. See, e.g., State v. Watts, 462 So. 2d 813 (Fla.1985) (defendant could be charged with only one count of possession of contraband in a correctional institution where prohibited article was described as “any ... weapon”); Grappin v. State, 450 So. 2d 480 (Fla.1984) (“unlawful taking of two or more firearms during the same criminal episode is subject to separate prosecution and punishment” because the statute modifies the term “firearm” with the article “a” denoting legislative intent to “make each firearm a separate unit of prosecution”); Campbell v. State, 586 So. 2d 84 (Fla. 4th DCA 1991) (“when there is a single occurrence of possession of excess currency as proscribed by the statute, regardless of the amount of money involved, it is but one offense”); Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990), approved in part, quashed in part, 590 So. 2d 404 (Fla.1991), certiorari denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992) (in section 827.071(5), Florida Statutes (1987), making it a crime to possess child pornography, the legislature, by the use of the word “any” to describe the proscribed items, evinced its intention that possession of several photographs depicting child pornography be treated as a single offense).2 Resort to the “a/any” dichotomy as a means of discerning legislative intent of the unit of prosecution has not been limited to cases involving possession of multiple articles of the same type of contraband. See, e.g., Wallace v. State, 724 So. 2d 1176 (Fla.1998) (defendant resisting two officers in one episode subject to single unit of prosecution under Section 843.01 which prohibits resisting “any” officer).
We affirm the trial court’s dismissal of Counts II, III, and IV of the amended information on the authority of the above cited cases.
AFFIRMED.
DELL and STEVENSON, JJ„ concur. . (4) It is unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child ... Whoever violates this subsection is guilty of a felony of the second degree.
(Emphasis supplied). § 827.071(4), Fla. Stat. (1997).
. Section 827.071(5) was amended in 1992, the amendment changing the article “any” to “a,” and adding a sentence making the possession of each photograph, motion picture, exhibition, show, representation, or presentation a separate offense. Appellee's argument, that the legislature’s failure to similarly amend section 827.071(4) evinces an intent to preclude multiple units of prosecution for violations of subsection (4) in the same criminal episode, though noted, is not the basis of our holding.
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Citator
Cited By (11 total)
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Wade v. State, 751 So. 2d 669 (Fla. 2d DCA 2000)…esentation, or presentation is prima facie evidence of an intent to promote. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Relying on State v. Parrella, 736 So. 2d 94 (Fla. 4th DCA 1999), Wade argues that in using the modifier “any” rather than “a” before the terms “photograph, motion picture, exhibition, show, representation, or other presentation,” the legislature intended to punish as a single crime any posses…
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State v. Farnham, 752 So. 2d 12 (Fla. 5th DCA 2000)…he basis for a separate unit of prosecution; if the word “any” is used, the courts have discerned a legislative intent that all of the contraband be viewed in the episodic sense with only a single unit of prosecution intended. See State v. Parrella, 736 So. 2d 94 (Fla. 4th DCA 1999). Mr. Farnham was charged in multiple counts with violating section 827.071(5) of the Florida Statutes which provides in relevant part: 827.071. Sexual performance by a child; penalties. * * * (5) It is unlawful for any person…
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State v. Rubio, 917 So. 2d 383 (Fla. 5th DCA 2005)…te v. Watts, 462 So. 2d 813 (Fla.1985) (defendant who possessed two knives could be charged with only one count of possession of contraband in a correctional institution where prohibited article was described as “any ... weapon”); State v. Parrella, 736 So. 2d 94 (Fla. 4th DCA 1999), (defendant, who during single occurrence showed undercover detectives four different videotapes depicting sexual acts involving children, could be prosecuted only on one count of possessing child pornography with intent to promo…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schmitt v. State, 590 So. 2d 404 (Fla. 1991)
- Smith v. State, 450 So. 2d 480 (Fla. 1984)
- State v. Watts, 462 So. 2d 813 (Fla. 1985)
- Castro v. State, 389 So. 3d 633 (Fla. 3d DCA 2025)
- Schmitt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990)
- Reneer v. Samberg, 503 U.S. 964 (U.S. 1992)
- Stokes v. United States, 503 U.S. 964 (U.S. 1992)
- Campbell v. State, 586 So. 2d 84 (Fla. 4th DCA 1991)