CARL M. COCKING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2015-01-14
No. 2D14-2419
KELLY, KHOUZAM, and BLACK, JJ., Concur.
154 So. 3d 1198 Florida District Court of Appeal, Second District (2015) Positive Treatment
Cited by 2 cases

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Holding

The court held that trial counsel's failure to move to dismiss all but one count of possession of child pornography with intent to promote constituted ineffective assistance of counsel, prejudicing the defendant.


Headnotes

[1] A single unit of prosecution may apply for possession of multiple articles of the same type of contraband when the legislature uses the word "any" in describing the contr…

[2] Ineffective assistance of counsel may be established by demonstrating deficient performance that prejudiced the defendant, such as failing to move to dismiss multiplicito…

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Facts & Procedural History

Appellant was arrested and pleaded guilty to 45 counts of possession of child pornography with intent to promote. He later filed a motion to vacate hi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Carl M. Cocking appeals the order summarily denying his motion to vacate his sentence filed under Florida Rule of Criminal Procedure 8.850. We affirm the denial of Cocking’s claim concerning case number 08-11130 without further comment, but we reverse the denial of his claim concerning case number 09-13152.

Over a period of two months, Cocking communicated over the internet with an undercover detective from the Hillsbor-ough County Sheriffs Office who posed as a father offering his twelve-year-old daughter for sex. A meeting between Cocking and the daughter was arranged, and Cocking was arrested en route to the location. During a forensic examination of Cocking’s computer, law enforcement found forty-five images showing children under the age of five being sexually battered. Cocking entered an open plea in case number 09-13152 to forty-five counts of possession of photographs depicting sexual conduct by a child with intent to promote, in violation of section 827.071(4), Florida Statutes (2008). Section 827.071(4) makes it “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.” The possession of three or more copies of said images is prima facie evidence of an intent to promote. Id. The trial court sentenced Cocking to concurrent terms of thirty years’ imprisonment on counts one through twenty to be followed by concurrent terms of twenty-five years’ imprisonment on counts twenty-one through forty-five, for a total of fifty-five years’ imprisonment. Cocking did not appeal.

In his rule 3.850 motion, Cocking argued that trial counsel was ineffective for failing to move to dismiss all but one of the forty-five counts alleging a violation of section 827.071(4), thereby inducing him to enter a plea to all forty-five counts when the statute only allows for one conviction under the facts of this case. He contended that he was prejudiced by receiving a much harsher sentence than he would have absent the extra forty-four counts. In support of his claim, Cocking cited Wade v. State, 751 So.2d 669 (Fla. 2d DCA 2000), and State v. Parrella, 736 So.2d 94 (Fla. 4th DCA 1999). In Parrella, the State appealed the trial court’s dismissal of three of the four counts of section 827.071(4) violations with which Parrella was charged. The Fourth District analyzed the statute to determine the legislature’s intent regarding the allowable unit of prosecution. It explained that courts have found that when the legislature uses the word “any” in describing contraband, it intends only a single unit of prosecution for possession of multiple articles of the same type of contraband. 736 So.2d at 95. Because Parrella showed undercover detectives portions of four different videos of sexual acts involving children during one meeting, the Fourth District affirmed the trial court’s dismissal of three of the four counts against him. Id. at 95-96.

*1200This court followed Parrella in Wade. Law enforcement arrested Wade after he accepted delivery of videotapes containing child pornography. Wade consented to a search of his residence, and law enforcement found numerous reproductions of images of children involved in sexual acts. The State charged Wade with three counts of possession of child pornography with intent to promote, and a jury found him guilty as charged on all three counts. On appeal, this court reversed Wade’s convictions for two of the three counts because the offending images had been found during one search. 751 So.2d at 671.

Both Wade and Parrella were decided on direct appeals of convictions. Recently, however, this court applied their holdings in the context of a rule 3.850 postconviction proceeding. In Chesser v. State, 148 So.3d 497 (Fla. 2d DCA 2014), Chesser entered an open plea and was convicted of nine counts of possession of child pornography with intent to promote. The postconviction court granted Chesser an evidentiary hearing, after which it found that counsel was not ineffective for failing to move to dismiss eight of the nine counts. This court reversed on the authority of Wade, Parrella, and Hudson v. State, 761 So.2d 1161, 1161 (Fla. 2d DCA 2000) (reversing and remanding with directions to strike forty-seven out of forty-eight counts of possession of child pornography with intent to promote), and held that because all of the images were found during one search, there was only one episode of promotion.

Cocking has shown that trial counsel’s failure to move to dismiss all but one of the forty-five counts of violation of section 827.071(4) and his advice to enter a plea to all forty-five counts constituted deficient performance that prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State appropriately concedes that Cocking is entitled to vacation of all but one of his convictions. Accordingly, we reverse the postconviction court’s order denying Cocking’s claim with regard to case number 09-13152. We vacate Cocking’s convictions on counts two through forty-five,, and we remand with directions for the postconviction court to dismiss those counts, to strike the sentences for those counts, and to correct Cocking’s written sentence to reflect one conviction for possession with intent to promote.

Affirmed in part, reversed in part, and remanded.

KELLY, KHOUZAM, and BLACK, JJ., Concur.


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Citator

Cited By

  • Pardue v. State, 176 So. 3d 340 (Fla. 1st DCA 2015)
    …(2012), governing possession of child pornography with intent to promote, a second degree felony, has been interpreted to impose only a single punishment for multiple depictions that constitute a single “episode of promotion.” See Cocking v. State, 154 So. 3d 1198, 1199 (Fla. 2d DCA 2015); State v. Parella, 736 So. 2d 94, 96 (Fla. 4th DCA 1999). However, while section 827.071(4) prohibits possession with intent to promote “any” depiction, section 827.071(5)(a) prohibits “a” depiction and “each” depiction. The…

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