HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1545 Child Exploitation Offenses
SPONSOR(S): Criminal Justice Subcommittee, Baker
TIED BILLS: IDEN./SIM. BILLS: SB 1656
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 17 Y, 0 N, As CS Butcher Hall
2) Justice Appropriations Subcommittee 14 Y, 0 N Saag Keith
3) Judiciary Committee 20 Y, 0 N Butcher Kramer
SUMMARY ANALYSIS
Felony offenses which are subject to the Criminal Punishment Code are listed in a single offense severity
ranking chart (OSRC) in s. 921.0022, F.S., which uses 10 offense levels to rank felonies from least severe to
most severe. Each felony offense listed in the OSRC is assigned a level according to the severity of the
offense. A person’s primary offense, any other current offenses, and prior convictions are scored using the
points designated for the offense severity level of each offense. The final score calculation, following the
scoresheet formula, determines the lowest permissible sentence that a trial court may impose, absent a valid
reason for departure.
Section 827.071, F.S., prohibits specified child exploitation offenses, including:
Section 827.071(2), F.S., prohibiting a person from using a child in a sexual performance as a second
degree felony and a Level 6 offense.
Section 827.071(3), F.S., prohibiting a person from promoting a sexual performance by a child as a
second degree felony and a Level 6 offense.
Section 827.071(4), F.S., prohibiting a person from possessing child pornography with the intent to
promote as a second degree felony and a Level 5 offense.
Section 827.071(5), F.S., prohibiting a person from possessing or intentionally viewing child
pornography as a third degree felony and a Level 5 offense.
CS/HB 1545 amends s. 921.0022, F.S., to increase the OSRC rankings for specified child exploitation
offenses:
Violation Current OSRC Ranking New OSRC Ranking
Using a child in or promoting a
child sexual performance Level 6 Level 7
under s. 827.071(2) or (3), F.S.
Possessing child pornography
with intent to promote under s. Level 5 Level 7
827.071(4), F.S.
Possessing or intentionally
viewing child pornography Level 5 Level 6
under s. 827.071(5), F.S.
The bill may have a positive indeterminate impact on jail and prison beds by increasing the OSRC ranking for
specified child exploitation offenses, which may result in increased admissions or longer terms of incarceration
for persons convicted of such offenses.
The bill provides an effective date of October 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Criminal Punishment Code
Felony offenses which are subject to the Criminal Punishment Code 1 are listed in a single offense
severity ranking chart (OSRC),2 which uses 10 offense levels to rank felonies from least severe to most
severe. Each felony offense listed in the OSRC is assigned a level according to the severity of the
offense.3,4 A person’s primary offense, any other current offenses, and prior convictions are scored
using the points designated for the offense severity level of each offense. 5,6 The final score calculation,
following the scoresheet formula, determines the lowest permissible sentence that a trial court may
impose, absent a valid reason for departure.7
Child Exploitation Offenses
Using a Child in a Sexual Performance
Section 827.071(2), F.S., prohibits a person from, knowing the character and content thereof,
employing, authorizing, or inducing a child to engage in a sexual performance; or being a parent, legal
guardian, or custodian of such child, consenting to the participation by such child in a sexual
performance. A violation for using a child in a sexual performance is a second degree felony8 and the
offense is ranked as a Level 6 offense on the OSRC.
Promoting a Sexual Performance by a Child
Under s. 827.071(3), F.S., a person commits a second degree felony if, knowing the character and
content thereof, he or she produces, directs, or promotes any performance which includes sexual
conduct by a child. The offense is ranked as a Level 6 offense on the OSRC.
Possessing Child Pornography with Intent to Promote
Under s. 827.071(4), F.S., a person commits a second degree felony if he or she possesses with the
intent to promote any photograph, motion picture, exhibition, show, representation, or other
presentation which, in whole or in part, includes child pornography. The possession of three or more
copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an
intent to promote. The offense is ranked as a Level 5 offense on the OSRC.
Possessing or Intentionally Viewing Child Pornography
1 All felony offenses, with the exception of capital felonies, committed on or after October 1, 1998, are subject to the Crimin al
Punishment Code. S. 921.002, F.S.
2 S. 921.0022, F.S.
3 S. 921.0022(2), F.S.
4 Felony offenses that are not listed in the OSRC default to statutorily assigned levels, as follows: an unlisted third -degree felony
defaults to a level 1; an unlisted second-degree felony defaults to a level 4; an unlisted first-degree felony defaults to a level 7; an
unlisted first-degree felony punishable by life defaults to a level 9; and an unlisted life felony defaults to a level 10. S. 921.0023, F.S.
5 Ss. 921.0022 and 921.0024, F.S.
6 A person may also accumulate points for factors such as victim in jury points, community sanction violation points, and certain
sentencing multipliers. S. 921.0024(1), F.S.
7 If a person scores more than 44 points, the lowest permissible sentence is a specified term of months in state prison, determ ined by a
formula. If a person scores 44 points or fewer, the court may impose a nonprison sanction, such as a county jail sentence, probation, or
community control. S. 921.0024(2), F.S.
8 A second degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. S s. 775.082, 775.083, or 775.084, F.S.
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Section 827.071(5), F.S., prohibits a person from knowingly possessing, controlling, or intentionally
viewing a photograph, motion picture, exhibition, show, representation, image, data, computer
depiction, or other presentation which, in whole or in part, he or she knows to include child
pornography. A violation of the prohibition is a third degree felony9 and the offense is ranked as a Level
5 offense on the OSRC.
Additionally, s. 827.071(5), F.S., specifies that the possession, control, or intentional viewing of each
such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or
presentation is a separate offense, and if such photograph, motion picture, exhibition, show,
representation, image, data, computer depiction, or other presentation includes child pornography
depicting more than one child, then each such child in each such photograph, motion picture,
exhibition, show, representation, image, data, computer depiction, or other presentation that is
knowingly possessed, controlled, or intentionally viewed is a separate offense. 10
Section 827.071, F.S., defines the following relevant terms:
“Child pornography” means any image depicting a minor engaged in sexual conduct, or any
image that has been created, altered, adapted, or modified by electronic, mechanical, or other
means, to portray an identifiable minor engaged in sexual conduct. 11
“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercours e,
sexual bestiality, masturbation, or sadomasochistic abuse; actual or simulated lewd exhibition of
the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area,
buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual
desire of either party; or any act or conduct which constitutes sexual battery or simulates that
sexual battery is being or will be committed.12
“Sexual performance” means any performance or part thereof which includes sexual conduct by
a child.13
Reclassification of Specified Child Exploitation Offenses
Under s. 775.0847, F.S., a violation of s. 827.071, F.S., must be reclassified to the next higher degree if
the offender possesses 10 or more images of any form of child pornography regardless of content, and
the content of at least one image contains one or more of the following:
A child who is younger than the age of five;
Sadomasochistic abuse14 involving a child;
Sexual battery15 involving a child;
Sexual bestiality16 involving a child; or
Any motion picture, film, video, or computer-generated motion picture, film, or video involving a
child, regardless of length and regardless of whether the motion picture, film, video, or
computer-generated motion picture, film, or video contains sound.
9 A third degree felony is punishable by up to five years imprisonment and a $5,000 fine. Ss. 775.082, 775.083, or 775.084, F.S .
10 This does not apply to any material possessed, controlled, or intentionally viewed as p art of a law enforcement investigation. S.
827.071(5)(b), F.S.
11 S. 827.071(1)(b), F.S.
12 A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.” S. 827.071(1)(l), F.S.
13 “Performance” means any play, motion picture, photograph, or dance or any other visual representation exhibited before an
audience. S. 827.071(1)(m) and (g), F.S.
14 “Sadomasochistic abuse” means flagellation or torture by or upon a person, or the conditi on of being fettered, bound, or otherwise
physically restrained, for the purpose of deriving sexual satisfaction from inflicting harm on another or receiving such harm oneself. S.
827.071(1)(i), F.S.
15 “Sexual battery” means oral, anal, or female genital penetration by, or union with, the sexual organ of another or the anal or female
genital penetration of another by any other object; however, “sexual battery” does not include an act done for a bona fide me dical
purpose. S. 827.071(1)(j), F.S.
16 “Sexual bestiality” means any sexual act between a person and an animal involving the sex organ of the one and the mouth, anus, or
female genitals of the other. S. 827.071(1)(k), F.S.
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This section reclassifies both the felony and OSRC level for a qualifying offense. For example, a third
degree felony that is ranked as a Level 5 offense on the OSRC would be reclassified as a second
degree felony that is ranked as a Level 6 offense on the OSRC, if the offense meets the requirements
under s. 775.0847, F.S.
Effect of Proposed Changes
CS/HB 1545 amends s. 921.0022, F.S., to increase the OSRC rankings for specified child exploitation
offenses as follows:17
Violation Current OSRC Ranking New OSRC Ranking
Using a child in or promoting
a child sexual performance Level 6 Level 7
under 827.071(2) or (3), F.S.
Possessing child
pornography with intent to
Level 5 Level 7
promote under s.
827.071(4), F.S.
Possessing or intentionally
viewing child pornography Level 5 Level 6
under s. 827.071(5), F.S.
By increasing the offense severity ranking of specified child exploitation offenses, the bill may increase
the minimum sentence to which a person convicted of such an offense may be sentenced and may
increase a term of incarceration required to be imposed as part of that sentence.
Under s. 921.0024(2), F.S., if a person scores more than 44 points, the lowest permissible sentence to
which he or she may be sentenced is a specified term of months in state prison, determined by a
formula, and if a person scores 44 points or fewer, the court may impose a nonprison sanction, such as
a county jail sentence, probation, or community control.
Under s. 921.0024(1), F.S., which specifies the method for calculating an offender’s scoresheet total, a
Level 6 offense scores 36 points and a Level 7 offense scores 54 points. Thus, by increasing the
OSRC ranking for specified child exploitation offenses, persons convicted of such offenses may be
eligible for a minimum prison sentence as a result of that conviction.
The bill provides an effective date of October 1, 2024.
B. SECTION DIRECTORY:
Section 1: Amends s. 921.0022, F.S., relating to Criminal Punishment Code; offense severity ranking
chart.
Section 2: Provides an effective date of October 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
17 The bill retains the current felony levels for ss. 827.071(2), (3), (4), and (5), F.S.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a positive indeterminate impact on jail and prison beds by increasing the OSRC
ranking for specified child exploitation offenses, which may result in increased prison admissions or
longer terms of incarceration for persons convicted of such offenses.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 25, 2024, the Criminal Justice Subcommittee adopted an amendment and reported the bill
favorably as a committee substitute. The amendment removed the ranking of an offense under s.
827.071(5), F.S., that is already subject to reclassification on the OSRC under s. 775.0847, F.S., and made
another technical change.
This analysis is drafted to the committee substitute as passed by the Criminal Justice Subcommittee.
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