          Supreme Court of Florida
                                    ____________

                                    No. SC15-782
                                    ____________

                            DUNCAN JASON SMITH,
                                 Petitioner,

                                          vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                 [September 8, 2016]

CANADY, J.

      In this case we consider whether the use of a file-sharing program for the

dissemination of child pornography violates the statutory prohibition on

transmitting child pornography. In the decision of the Fourth District Court of

Appeal in Smith v. State, 190 So. 3d 94 (Fla. 4th DCA 2015), which is now before

the Court for review, the court concluded that the use of a file-sharing program

resulted in a violation of the statute. The Fourth District certified that its decision

is in direct conflict with the decision of the Fifth District Court of Appeal in Biller

v. State, 109 So. 3d 1240 (Fla. 5th DCA 2013). We have jurisdiction. See art. V,

§ 3(b)(4), Fla. Const. For the reasons that follow, we hold that the use of a file-
sharing program, where the originator affirmatively grants the receiver access to

child pornography placed by the originator in files accessible through the file-

sharing program, constitutes the transmission of child pornography under the plain

meaning of section 847.0137, Florida Statutes (2010). We therefore approve the

decision of the Fourth District in Smith and disapprove the decision of the Fifth

District in Biller.

                                  BACKGROUND

       In August 2011, Duncan Jason Smith pleaded guilty to twenty counts of

transmitting child pornography to an undercover officer via the Internet. Smith,

190 So. 3d at 95. The information alleged twenty counts as follows:

       DUNCAN JASON SMITH on or about April 13, 2010, in the County
       of Palm Beach and State of Florida, did transmit child pornography,
       as defined in section 847.001, Florida Statute, knowing or having
       reason to know it was child pornography, to another person in Florida
       or in any other jurisdiction, or from any jurisdiction outside of Florida
       to any person in the State of Florida, contrary Florida Statutes
       847.0137(2) and (3). (3 DEG FEL)

Id. Smith was sentenced to “clusters of five-year sentences, some of which were

run consecutively, to constitute a ten-year sentence. This was to be followed by

fifteen years of sex offender probation.” Id. at 95-96.

              Factually, Smith used a file-sharing program that was designed
       to allow one-on-one access to stored data. Smith loaded pornographic
       images into a specific computer file. Authorization was required to
       gain access to it. Smith sent a “friend” request to a Palm Beach
       County undercover detective, which authorized the detective to access
       certain of Smith’s files that Smith had chosen to share with other

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      users. The detective downloaded various images of child
      pornography from these files. Apart from the “friend” request, Smith
      did not know that the files were actually downloaded. Smith was
      arrested, and in a post-Miranda statement admitted that he had been
      trading in child pornography for ten years.

Id. at 95 (footnotes omitted).

      After his conviction and sentence, the Fifth District decided Biller. Smith

then filed a motion for postconviction relief and claimed in relevant part that

because Biller found that transmission by method of file-sharing was not a

transmission of child pornography within the meaning of section 847.0137, he was

denied due process by being convicted of a nonexistent crime. Id. at 96. The trial

court denied relief. Id.1

      On appeal, the Fourth District affirmed the trial court’s denial of relief and

disagreed with the Fifth District’s interpretation of the statute. The Fourth District

explained that Biller erred in focusing solely on the word “send” in construing the

statute because “the statutory definition of ‘transmit’ requires an act of ‘sending

and causing to be delivered.’ ” Id. at 96-97 (quoting § 847.0137(1)(b), Fla. Stat.

(2010)). After “consider[ing] the entire language of the statute,” the Fourth

District “conclude[d] that the use of the file-sharing program, where the originator

affirmatively grants the receiver access to his files, who can then download the



      1. We do not address whether this postconviction claim was procedurally
barred.


                                         -3-
pornographic images over the internet through an electronic device, constitutes

‘transmission’ of pornography.” Id. The Fourth District reasoned in relevant part

as follows:

            In the context of transmission using the internet, when the
      originator creates the shared file folder and specifically authorizes
      others to download the contents of that folder, he is “sending”
      information in the form of the “friend” request and is “causing” the
      pornographic images to be delivered to another. It is reasonably
      foreseeable that the pornographic images will be accessed and
      downloaded. Thus, under the statute, Smith created the shared file
      space populated with pornographic images; he “sent” the “friend”
      request to the undercover detectives, thereby granting them access;
      and he reasonably could foresee that they would access the folder and
      download the images, thus “causing” them to be delivered to another.
      Indeed, in his subsequent statements he admitted to trading in
      pornographic images, which also means that delivery is contemplated.
      Thus, he “sent and caused to be delivered” the pornographic images.
      The use of the phrase “cause to be delivered” in the statute negates the
      construction that a person must himself deliver the files to another
      person, such as by attaching them to an email.

Id. at 97. The Fourth District further concluded that the Legislature intended the

definition of “transmit” in section 847.0137(1)(b) to be broader than merely

purposely sending images to an individual by comparing the definition of

“transmit” in section 847.0137(1)(b) with the definition of “transmit” in section

847.0138(1)(b).2 Id. Thus, the Fourth District “s[aw] no need to apply the rule of

lenity to section 847.0137” and certified conflict with Biller. Id.



      2. Section 847.0138 prohibits “[t]ransmission of material harmful to minors
to a minor by electronic device or equipment[.]” In that statute, “transmit” is

                                         -4-
                                     ANALYSIS

      “Because the conflict issue involves the interpretation of a statute, this

Court’s review is de novo.” Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007).

“The object of statutory interpretation is to determine legislative intent.” Crews v.

State, 183 So. 3d 329, 332 (Fla. 2015). “To discern legislative intent, this Court

looks first to the plain and obvious meaning of the statute’s text[.]” W. Fla. Reg’l

Med. Ctr., Inc. v. See, 79 So. 3d 1, 9 (Fla. 2012). This Court has consistently

recognized that “[w]hen the statute is clear and unambiguous, courts will not look

behind the statute’s plain language for legislative intent or resort to rules of

statutory construction to ascertain intent.” Borden v. E.-Eur. Ins. Co., 921 So. 2d

587, 595 (Fla. 2006) (quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64

(Fla. 2005)).

      Section 847.0137 makes it a crime to transmit child pornography:

      [A]ny person in this state who knew or reasonably should have known
      that he or she was transmitting child pornography, as defined in s.
      847.001, to another person in this state or in another jurisdiction
      commits a felony of the third degree, punishable as provided in s.
      775.082, s. 775.083, or s. 775.084.

§ 847.0137(2), Fla. Stat. (2010). That same statute defines “transmit” as:

      [T]he act of sending and causing to be delivered any image,
      information, or data from one or more persons or places to one or

defined as “to send to a specific individual known by the defendant to be a minor
via electronic mail.” § 847.0138(1)(b), Fla. Stat (2010).


                                          -5-
      more other persons or places over or through any medium, including
      the Internet, by use of any electronic equipment or device.

§ 847.0137(1)(b), Fla. Stat. (2010).

      Smith argues that he did not commit the act of “sending and causing to be

delivered” child pornography within the plain meaning of the statute and, in the

alternative, that the statutory definition of “transmit” is ambiguous. We disagree.

The statute unambiguously prohibits the conduct for which Smith was convicted.

Smith sent child pornography images to an electronic “place” by loading them into

a specific computer file and, through his use of the file-sharing program, made

those images accessible to third parties for whom access was authorized. Smith

then sent a “friend” request to a third party which authorized the third party—

through the file-sharing program—to obtain access to the place to which the

images had been sent. By those purposeful acts, Smith caused the delivery of the

images to the third party to take place.

      We thus agree with the Fourth District that Smith “sent and caused to be

delivered” child pornography under the statutory definition of “transmit.” Smith,

190 So. 3d at 97. What Smith did is the electronic equivalent of placing a locked

box filled with pornographic photographs on his front porch, telling a “friend” that

there is something on the front porch he might want to see, and sending the friend a

spare key to the locked box. In such hypothetical circumstances, although it might

be said that Smith did not directly send and deliver those photos to the friend, it is

                                           -6-
undeniable that once the friend obtained access to the photos, Smith had indeed

caused the delivery to the friend of the photos which he previously had sent to his

front porch. Accordingly, we hold that the use of a file-sharing program, where the

originator affirmatively grants the receiver access to the originator’s child

pornography files, constitutes the transmission of child pornography under the

plain meaning of section 847.0137.

          Biller erred by applying the rule of lenity to section 847.0137 based on an

unreasonably cramped reading of the statute. Smith correctly declined to apply the

rule of lenity to section 847.0137.

                                     CONCLUSION

          Accordingly, we approve the decision of the Fourth District and disapprove

Biller.

          It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal - Certified
Direct Conflict of Decisions

          Fourth District - Case No. 4D14-438

          (Palm Beach County)




                                           -7-
Antony Parker Ryan, Regional Counsel, and Louis G. Carres, Special Assistant
Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth
District, West Palm Beach, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Consiglia Terenzio,
Bureau Chief, and Luke Robert Napodano, Assistant Attorney General, West Palm
Beach, Florida,

      for Respondent




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