CARABALLO
v.
STATE
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Material that does not meet the statutory definition of 'sexual performance' under Florida Statute § 827.071(1)(h)-(i) cannot support a conviction for intentional viewing of materials depicting a sexual performance by a child.
[1] Material that does not satisfy the statutory definition of 'sexual performance' under Florida Statute § 827.071(1)(h)-(i) cannot form the basis for a conviction under § 8…
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Join FLexlaw to unlock all legal intelligence“Even when viewed in the light most favorable to the State, the material did not meet the statutory definition of sexual performance.”
Court's explanation for reversing count thirty conviction
Caraballo was convicted of fifty-one counts of intentional viewing of materials depicting a sexual performance by a child in violation of Florida Stat…
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PER CURIAM.
We affirm Appellant's judgment and sentence in all respects except as to the conviction on count thirty, one of fifty-one convictions for intentional viewing of materials depicting a sexual performance by a child in violation of section 827.071(5)(a), Florida Statutes (2017). Even when viewed in the light most favorable to the State, see Robinson v. State, 267 So. 3d 567, 568 (Fla. 1st DCA 2019), the material did not meet the statutory definition of sexual performance. See § 827.071(1)(h)-(i), Fla. Stat. (2017). Thus, the trial court erred in refusing to grant a judgment of acquittal as to this count. Accordingly, we remand for the trial court to vacate the adjudication of guilt and sentence as to count thirty only.
AFFIRMED in part; REVERSED in part; and REMANDED.
ORFINGER, COHEN, and GROSSHANS, JJ., concur.