        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           STATE OF FLORIDA,
                               Appellant,

                                      v.

                                C.M., a child,
                                  Appellee.

                               No. 4D13-2168

                             [January 7, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Elijah H. Williams, Judge; L.T. Case No. 13-1629DL.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellant.

   Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief
Assistant Public Defender, Fort Lauderdale, for appellee.

LEVINE, J.

    The state appeals the trial court’s dismissal of a petition for delinquency
filed against appellee based on the court’s finding that the juvenile did not
commit a delinquent act. We find that the trial court did not err in
dismissing the petition, because the act charged was a noncriminal
violation and as such was not a delinquent act or violation of law as
required to justify delinquency proceedings. We are therefore compelled
to affirm the trial court’s dismissal of the state’s petition for delinquency.

   The state filed a petition for delinquency charging appellee, C.M., with
violating section 847.0141(3)(a), Florida Statutes (2013), “Sexting (First
Offense).” Appellee allegedly sent an “SMS photograph of her own vagina
to a classmate who is a 13 year old [] female.” Appellee allegedly “admitted
to sending the photograph . . . because she was ‘bored.’”

   Appellee moved to dismiss the petition arguing that the first offense of
sexting, pursuant to section 847.0141(3)(a), was not a violation of law or a
delinquent act thereby precluding the juvenile court from having
jurisdiction. The state conceded that a first violation of the statute was
noncriminal, but argued that the juvenile court had jurisdiction based, in
part, on legislative intent. The trial court found it had jurisdiction and
thus denied appellee’s “motion to dismiss based upon jurisdictional
reasons,” but granted the motion to dismiss “based on the fact that the
child did not commit a delinquent act.” The state appeals the dismissal.

    The standard of review of an order dismissing a petition for delinquency
is de novo. K.J. v. State, 107 So. 3d 523 (Fla. 4th DCA 2013). Further,
“[t]he interpretation of a statute is a purely legal matter and therefore
subject to the de novo standard of review.” Kasischke v. State, 991 So. 2d
803, 807 (Fla. 2008) (citation omitted).

    The trial court correctly denied appellee’s motion to dismiss based on
jurisdiction. Circuit courts “shall have exclusive original jurisdiction” in
“all cases relating to juveniles except traffic offenses as provided in
chapters 316 and 985.” § 26.012(2)(c), Fla. Stat. (2013).1 In the present
case, because appellee is a juvenile alleged to have violated a non-traffic
offense, the circuit court has exclusive original jurisdiction.

    The trial court was also correct in granting the motion to dismiss based
on finding that the juvenile did not commit a delinquent act. A first offense
of sexting is a noncriminal violation not constituting a delinquent act or
violation of law, and is thus not subject to prosecution through a petition
for delinquency.

    Florida’s sexting statute provides:

           A minor commits the offense of sexting if he or she
       knowingly . . . [u]ses a computer, or any other device capable
       of electronic data transmission or distribution, to transmit or
       distribute to another minor any photograph or video of any
       person which depicts nudity, as defined in s. 847.001(9), and
       is harmful to minors, as defined in s. 847.001(6).

§ 847.0141(1)(a), Fla. Stat. (2013). A minor who violates the section
“[c]ommits a noncriminal violation for a first violation, punishable by
8 hours of community service or, if ordered by the court in lieu of
community service, a $60 fine.” § 847.0141(3)(a), Fla. Stat. (2013)
(emphasis added). “The court may also order the minor to participate in


1Under Chapter 316, circuit courts also have jurisdiction over minors alleged to
have committed felony traffic violations, while county courts have jurisdiction
over minors alleged to have committed any non-felony traffic violations.


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suitable training or instruction in lieu of, or in addition to, community
service or a fine.” Id.

   Florida Statutes defines “noncriminal violation” as:

         When used in the laws of this state . . . [t]he term
      “noncriminal violation” shall mean any offense that is
      punishable under the laws of this state, or that would be
      punishable if committed in this state, by no other penalty than
      a fine, forfeiture, or other civil penalty. A noncriminal
      violation does not constitute a crime, and conviction for a
      noncriminal violation shall not give rise to any legal disability
      based on a criminal offense. The term “noncriminal violation”
      shall not mean any conviction for any violation of any
      municipal or county ordinance. Nothing contained in this
      code shall repeal or change the penalty for a violation of any
      municipal or county ordinance.

§ 775.08(3), Fla. Stat. (2013).

   Under the delinquency statutes, the state attorney files a petition for
delinquency in the circuit court to obtain “a finding that a child has
committed a delinquent act or violation of law.”             §§ 985.0301(1),
985.318(1), Fla. Stat. (2013); Fla. R. Juv. P. 8.030(a). The petition shall
be filed “where the delinquent act or violation of law occurred.” §
985.0301(4)(a), Fla. Stat. (2013). A “violation of law” or “delinquent act” is
defined as “a violation of any law of this state, the United States, or any
other state which is a misdemeanor or a felony or a violation of a county
or municipal ordinance which would be punishable by incarceration if the
violation were committed by an adult.” § 985.03(57), Fla. Stat. (2013).

    In the present case, as admitted by the state, a first violation of the
sexting statute is a noncriminal violation. A noncriminal violation does
not constitute a crime. Thus, by definition, a first offense of sexting does
not fit within the definition of a delinquent act or violation of law under
section 985.03(57). Because appellee’s alleged conduct does not fit within
the statutory definition of a delinquent act or violation of law, a petition
for delinquency is not the proper method to prosecute her alleged first
offense of sexting. Therefore, the trial court properly dismissed the petition
for delinquency.

   The state below, and now on appeal, argues that the trial court’s
dismissal leaves it without a remedy. The state asserts that this court
should authorize the use of a petition for delinquency, because it is the


                                      3
only method to determine if a noncriminal first offense of sexting has
occurred. However, the legislature has crafted other statutes that provide
detailed procedures for prosecuting juveniles accused of committing other
noncriminal violations.2

    Here, it is up to the legislature to draft statutes to effectuate the
procedure for prosecuting a first offense of sexting. The courts “are not at
liberty to add words to statutes that were not placed there by the
Legislature. To do so, would be an abrogation of legislative power.” Bay
Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So. 2d 1197, 1197
(Fla. 3d DCA 2005) (citations omitted). This premise follows the statutory
canon known as the “Omitted-Case Canon,” meaning “nothing is to be
added to what the text states or reasonably implies (casus omissus pro
omisso habendus est). That is, a matter not covered is to be treated as not
covered.”      Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 93 (2012) (citing People v. Booth, 944 N.E.2d
1137, 1139 (N.Y. 2011) (affirming the dismissal of the defendant’s
indictment where the legislature had failed to criminalize the defined
conduct under a revised statute, noting “that courts are not to legislate
under the guise of interpretation,” and holding that if the statute’s
“deficiency is to be corrected, it must be done through legislative action,
as the Legislature is better equipped to correct any deficiencies that might
exist”) (citations omitted)). See also Kortum v. Sink, 54 So. 3d 1012, 1018
(Fla. 1st DCA 2010) (“It is fundamental that judges do not have the power
to edit statutes so as to add requirements that the legislature did not
include.”) (citation omitted); Fla. Dep’t of Rev. v. Fla. Mun. Power Agency,
789 So. 2d 320, 323 (Fla. 2001) (“Even where a court is convinced that the
Legislature really meant and intended something not expressed in the
phraseology of the act, it will not deem itself authorized to depart from the
plain meaning of the language which is free from ambiguity.”) (citation
omitted).


2 For example, under Florida’s curfew statute, a minor commits a noncriminal
infraction and receives a written warning for a first violation, and a civil fine is
imposed for subsequent violations. § 877.22, Fla. Stat. (2013). Florida’s truancy
statutes require minors to attend school regularly and are noncriminal in nature.
See § 1003.21, Fla. Stat. (2013). Prosecution is commenced through a truancy
petition, various sanctions can be imposed for violations, and the circuit court
may use its contempt power to enforce those sanctions. §§ 984.151, 1003.27,
Fla. Stat. (2013). Lastly, multiple statutes make it unlawful for minors to possess
tobacco products, alcohol, and nicotine products. §§ 569.11(1), 877.112, Fla.
Stat. (2013). A minor in possession of these items commits a noncriminal
violation and must sign and accept a civil citation, appear before court or pay a
fine, and attend remedial programing.


                                         4
   Here, as previously stated, only the legislature can add to the sexting
statute to set out the procedure for the prosecution and determination if
there has been a violation of the first offense. Until that is effectuated by
the legislature, we are bound to the letter of the law and “must apply a
statute as [we] find it, leaving to the legislature the correction of assorted
inconsistencies and inequalities in its operation.” Guilder v. State, 899 So.
2d 412, 419 (Fla. 4th DCA 2005) (quoting State v. Aiuppa, 298 So. 2d 391,
404 (Fla. 1974)).

   Because we are bound by the law as it was passed by the legislature
and not allowed to add language to or fill gaps in the statute, we affirm the
dismissal by the trial court of the petition for delinquency.

   Affirmed.

CIKLIN and GERBER JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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