JONATHAN A. STOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jonathan Stowe appealed multiple convictions for possession of child pornography based on a single video file, arguing they violated double jeopardy protections. The Florida First District Court of Appeal accepted this argument, holding that the statute makes each video file the unit of prosecution, not each child depicted within it, and reversed the redundant convictions while upholding the sexual offender designation.
Multiple convictions based on a single video file violate double jeopardy principles because the statute designates each photograph, motion picture, or presentation as the unit of prosecution, not each child depicted within it. Stowe should have been convicted and sentenced on only one count for possessing the single wmv file, not eight counts. The court affirmed the sexual offender designation but reversed the redundant convictions and remanded for resentencing.
[1] Multiple convictions and sentences for possession of child pornography based on the possession of a single proscribed item violate constitutional prohibitions against dou…
[2] Double jeopardy violations constitute fundamental error and may be raised for the first time on appeal.
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Join FLexlaw to unlock all legal intelligence“In determining whether multiple convictions violate double jeopardy principles, courts must ask whether the Legislature intended to recognize separate crimes.”
Establishes the legal standard for analyzing double jeopardy violations in multiple conviction cases.
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Join FLexlaw to unlock all legal intelligenceStowe was charged with eighteen counts of possession of child pornography under Florida Statute § 827.071(5). He entered a no contest plea and was con…
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Jonathan A. Stowe contends multiple convictions and sentences for possession of child pornography based on his possession of a single proscribed item violate constitutional prohibitions against double jeopardy. We accept this contention, reverse the convictions and sentences that constitute double jeopardy, and remand for resen-tencing on the remaining convictions. But we reject — on the authority of Rogers v. State, 33 So.3d 805, 806 (Fla. 1st DCA 2010)—appellant’s argument that the trial court did not have jurisdiction, pursuant to section 943.0435, Florida Statutes (2006), to designate him a sexual offender.
Mr. Stowe was charged with eighteen counts of possession of child pornography, in violation of section 827.071(5), Florida Statutes (2006), which provides:
It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession of each such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense.
He entered an open plea of no contest on all eighteen counts, and was convicted on all eighteen counts.1 At issue here are his convictions on counts four through ten and count fifteen.
“Both the Florida Constitution, Art. I, § 9, Fla. Const., and the federal Double Jeopardy Clause, applicable by virtue of the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), forbid redundant convictions for the same offense.” Henry v. State, 707 So.2d 370, 371 (Fla. 1st DCA 1998). A double jeopardy violation constitutes fundamental error, which may be raised for the first time on appeal. See Grant v. State, 770 So.2d 655, 657 n. 4 (Fla.2000); Kilmartin v. State, 848 So.2d 1222, 1224 (Fla. 1st DCA 2003). Mr. Stowe has not waived the right to argue double jeopardy on this direct appeal. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994); Godfrey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006). In fact, he filed a Rule 3.800(b) motion challenging his sentences on double jeopardy grounds, which the trial court denied.
“In determining whether multiple convictions violate double jeopardy principles, courts must ask whether the Legislature intended to recognize separate crimes.” Richardson v. State, 969 So.2d 535, 537 (Fla. 1st DCA 2007). The parties *1017agree that the convictions and sentences on counts four through ten and count fifteen are each based on a single “Windows Media Video” or “wmv” that the parties describe as analogous to a motion picture. We reject the state’s contention that Mr. Stowe was properly convicted and sentenced on multiple counts because multiple children are depicted in the “wmv.” The statute makes it unlawful knowingly to possess “a ... motion picture” or “presentation.” The Legislature designated “each such ... motion picture” or “presentation” the “unit of prosecution.”2 The language of the statute does not contemplate a separate conviction for each child depicted in a single photograph, motion picture, exhibition, show, representation, or other presentation. See Crosby v. State, 757 So.2d 584, 585 (Fla. 2d DCA 2000) (“Subsection (5) [of section 827.071] expressly states that possession of each article shall constitute a separate offense.”) (emphasis supplied). Mr. Stowe was properly convicted and sentenced on only one count, not on eight,' for possessing a single “wmv.”
Accordingly, we affirm appellant’s sexual offender designation, reverse his convictions and sentences on counts five, six, seven, eight, nine, ten and fifteen, vacate his sentences on the remaining counts, and remand for resentencing on the remaining counts. See State v. Anderson, 905 So.2d 111, 112 (Fla.2005).
Affirmed in part, reversed in part, and remanded with directions.
BENTON, C.J., LEWIS, and WETHERELL, JJ., concur.
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Citator
Cited By
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Johnson v. State, 150 So. 3d 214 (Fla. 1st DCA 2011)…opardy because both offenses are violations of section 893.13(l)(a), Florida Statutes. For the following reasons, we affirm. A double jeopardy violation constitutes fundamental error which may be raised for the first time on appeal. Stowe v. State, 66 So. 3d 1015,1016 (Fla. 1st DCA 2011). In order to determine if a defendant’s convictions violate double jeopardy, it must first be ascertained if the offenses were based on an act or acts that occurred [*215] within the same criminal transaction and/or episode.…
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Johnson v. State, 133 So. 3d 602 (Fla. 1st DCA 2014)…eding or sentencing or considering the verdict on Count Two, and his sentence is to begin immediately. This appeal followed. A double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal. Stowe v. State, 66 So. 3d 1015, 1016 (Fla. 1st DCA 2011). However, pursuant to the invited-error doctrine, “ ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Anderson v. State, 98 So. 3d 1201, 1206 (Fla. 1st DCA 2012) (quoting Czub…
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Barritt v. Sec'y, Fla. Dep't of Corr., 968 F.3d 1246 (11th Cir. 2020)…videotape. He points out that in Stowe v. State, the defendant was charged with only one count of possession of child pornography though he possessed a video that contained multiple children. Barritt’s reliance on Stowe is misplaced. Stowe v. State, 66 So. 3d 1015, 1017 (Fla. Dist. Ct. App. 2011). In that case, the parties agreed that the defendant possessed only a single motion picture. Id. Here, by contrast, the parties do not agree that the single videotape constituted one “motion picture.” A “motion pictu…
Authorities Cited (11 total)
- Benton v. Maryland, 395 U.S. 784 (U.S. 1969)
- Bell v. United States, 349 U.S. 81 (U.S. 1955)
- Grant v. State, 770 So. 2d 655 (Fla. 2000)
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- State v. Anderson, 905 So. 2d 111 (Fla. 2005)
- Kilmartin v. State, 848 So. 2d 1222 (Fla. 1st DCA 2003)
- Godfrey v. State, 947 So. 2d 565 (Fla. 1st DCA 2006)
- Sterling Henry v. State, 707 So. 2d 370 (Fla. 1st DCA 1998)
- Rogers v. State, 33 So. 3d 805 (Fla. 1st DCA 2010)
- Crosby v. State, 757 So. 2d 584 (Fla. 2d DCA 2000)