Chesser v. State , 2014 Fla. App. LEXIS 15261 ( 2014 )


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  •               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
    MOTION AND, IF FILED, DETERMINED
    IN THE DISTRICT COURT OF APPEAL
    OF FLORIDA
    SECOND DISTRICT
    STEPHEN J. CHESSER,               )
    )
    Appellant,             )
    )
    v.                                )             Case No. 2D13-463
    )
    STATE OF FLORIDA,                 )
    )
    Appellee.              )
    _________________________________ )
    Opinion filed October 1, 2014.
    Appeal from the Circuit Court for
    Hillsborough County; Debra K. Behnke,
    Judge.
    Stephen J. Chesser, pro se.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Susan M. Shanahan,
    Assistant Attorney General, Tampa,
    for Appellee.
    NORTHCUTT, Judge.
    Stephen Chesser appeals the denial of his motion for postconviction relief.
    We reverse in part.
    Chesser entered open guilty pleas to nine counts of possession of
    photographs depicting sexual conduct by a child with intent to promote, § 827.071(4),
    Fla. Stat. (2005), and to sixty counts of possession of child pornography, § 827.071(5).
    The court sentenced him to concurrent terms of fifteen years' imprisonment on counts
    one through five, concurrent terms of fifteen years' imprisonment on counts six through
    nine, and concurrent terms of five years' imprisonment on counts ten through sixty. The
    three blocks of concurrent terms ran consecutively to each other, for a total sentence of
    thirty-five years' imprisonment. Counts one through nine were the charges of
    possession with intent to promote, § 827.071(4).
    Chesser appealed his convictions, and this court affirmed them. Chesser
    v. State, 
    966 So. 2d 393
    (Fla. 2d DCA 2007) (table decision). He then filed a motion for
    postconviction relief under Florida Rule of Criminal Procedure 3.850, alleging ineffective
    assistance of counsel. The postconviction court granted an evidentiary hearing on each
    of the three grounds raised. After the hearing the court denied Chesser's motion in its
    entirety. We affirm without further comment the court's ruling that counsel was not
    ineffective in failing to seek a competency examination of Chesser before he entered his
    pleas. But we reverse the denials of Chesser's other two grounds, which alleged
    ineffective assistance concerning his convictions and sentences for possession with
    intent to promote.
    Section 827.071(4) provides:
    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. The
    2
    possession of three or more copies of such photograph,
    motion picture, representation, 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.
    The Fourth District, in State v. Parrella, 
    736 So. 2d 94
    (Fla. 4th DCA 1999), analyzed
    the language of the above-quoted subsection to determine "the allowable units of
    prosecution." 
    Id. at 95-96.
    Parrella had shown undercover officers portions of four
    different videotapes that depicted children involved in sexual acts. The State had
    charged four counts of violation of the statute, but the circuit court had dismissed three
    of them. The district court approved the circuit court's decision.
    Examining the language of the subsection to determine the legislative
    intent, the Parrella court focused on the legislature's use of the phrase "any photograph"
    as opposed to "a photograph." When the legislature has employed the word "a," "courts
    have discerned a legislative intent that each item of contraband be the basis for a
    separate unit of prosecution." But if, instead, the word "any" is used, as in subsection
    827.071(4), "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." 
    Id. at 95.
    Thus the court held that the four different videotapes Parrella showed the officers could
    support only one conviction under section 827.071(4).
    In Wade v. State, 
    751 So. 2d 669
    (Fla. 2d DCA 2000), this court was
    presented with the same issue raised in Parrella and reached the same result. Wade
    was arrested when he accepted delivery of three child pornography videotapes he had
    purchased from undercover agents. He consented to a search of his rooms and law
    3
    enforcement discovered three or more printed reproductions of three photographs.1
    Wade was charged with, and a jury convicted him of, three counts of possession with
    intent to distribute. Wade argued that Parrella supported a conviction for only one
    section 827.071(4) crime for all the images discovered in the search of his rooms.
    The Wade court agreed. It held that the multiple copies of the
    photographs provided evidence of Wade's intent to promote the photos. But because
    they were all discovered in one search, there was only one episode of promotion, and
    therefore only one conviction for a section 827.071(4) crime was permissible. 
    Id. at 671
    (citing Parrella). See also Crosby v. State, 
    757 So. 2d 584
    (Fla. 2d DCA 2000)
    (contrasting the language of section 827.071(5) which made it unlawful to possess a
    pornographic photograph of a child and therefore permitted separate prosecutions for
    each photograph discovered in a single search with the language in section 827.071(4)
    making it unlawful to possess any such photograph with intent to promote); Hudson v.
    State, 
    761 So. 2d 1161
    (Fla. 2d DCA 2000) (relying on Wade and reversing forty-eight
    convictions for possession of child pornography with intent to promote and remanding
    for resentencing for one conviction).
    The testimony at the evidentiary hearing on Chesser's rule 3.850 motion
    established that law enforcement obtained all of the images supporting the nine charges
    of possession of child pornography with intent to promote in one search of a shed on his
    1
    We recognize that this court's recitation of the facts in the Wade opinion
    is somewhat unclear concerning whether the reproductions were of the same image or
    were of different images. Any confusion is, however, dispelled by the court's statement
    that "[h]ere, the multiple copies of three different photos provide prima facie evidence
    that Wade intended to promote these 
    photos." 751 So. 2d at 671
    (emphasis supplied).
    4
    parents' property. Chesser's counsel testified at the hearing and the court found that
    "he did not believe the sentences on the nine counts of possession of photographs
    depicting sexual conduct by a child with intent to promote were illegal." The
    postconviction court ruled "based on the fact that there were nine different images and
    different dates for each of those images, [Chesser] could be legally sentenced on all
    nine counts." Its ruling was legally incorrect under the holdings of Parella, Wade, and
    Hudson. The dates that the images were created was not determinative; if law
    enforcement discovered all the images in one search, they supported only one
    conviction under section 827.071(4).
    Chesser's counsel was unaware that under the facts of the case his client
    legally could be convicted of only one count of possession of child pornography with
    intent to promote. As a result, he failed to file a motion to dismiss the other eight
    charges. This constituted deficient performance that prejudiced his client. See Sochor
    v. State, 
    883 So. 2d 766
    , 771 (Fla. 2004) (citing Strickland v. Washington 
    466 U.S. 668
    (1984)). We reverse the postconviction court's denial of grounds II and III in Chesser's
    rule 3.850 motion.
    When Chesser was sentenced, the court imposed the maximum penalty
    allowed by law, fifteen years' imprisonment, on each count. See § 827.071(4);
    775.082(3)(c). We vacate the convictions for possession with intent to promote charged
    in counts two through nine. We remand with directions to dismiss those counts, to
    correct Chesser's written sentence to reflect only one conviction for possession with
    intent to promote, and to strike the sentence imposed for counts six through nine.
    5
    Affirmed in part, reversed in part, and remanded with directions.
    DAVIS, C.J., and MORRIS, J., Concur.
    6
    

Document Info

Docket Number: 2D13-463

Citation Numbers: 148 So. 3d 497, 2014 Fla. App. LEXIS 15261, 2014 WL 4851699

Judges: Davis, Morris, Northcutt

Filed Date: 10/1/2014

Precedential Status: Precedential

Modified Date: 10/19/2024