PER CURIAM.
Harry Martin Walsh, Jr. appeals his convictions and sentences, totaling 63.5 years in prison, for possession of child pornography. See §§ 827.071(5)(a), 775.0847, Fla. Stat. (2012). We have jurisdiction. See Fla. R.App. P. 9.140(b)(1)(A). We consolidated these cases for purposes of this opinion. We affirm on all issues raised by Mr. Walsh. We write to discuss section 775.0847, the child pornography reclassification statute. We also remand for the trial court to correct a scrivener's error in the sentence for case number 2D14-4735.
Pursuant to an open plea of no contest, the trial court convicted Mr. Walsh of ten counts of possession of child pornography (ten or more images) on his home computer in case number 2D14-4735 and seven counts of possession of child pornography (ten or more images) on his business computer in case number 2D14-4920. See §§ 827.071(5)(a), 775.0847. Although the plea involved 170 images of child pornography, law enforcement officers discovered over 3000 pornographic images on Mr. Walsh's home computer.
Section 827.071(5)(a) makes it unlawful
The State reclassified Mr. Walsh's offenses pursuant to section 775.0847(2) and (3):
The State sorted the 170 total images into groups of ten; each group included an image of a sexual battery on a child. The State then charged one count of "possession of child pornography-ten or more images" for each group of ten. The State reclassified each of the seventeen counts to a second-degree felony. Each count, therefore, exposed Mr. Walsh to a statutory
Mr. Walsh argues that the trial court could not convict him for seventeen separate counts. He contends that section 775.0847 required the State to charge any number of images arising from a single criminal episode totaling ten or more as a single offense. Thus, Mr. Walsh posits that he could not have been convicted for more than one count in each case, and that thus the trial court violated double jeopardy.
Under section 827.071(5)(a), "[t]he possession... of each such ... image ... is a separate offense." (Emphasis added.) Consequently, this is not double jeopardy. The State could have charged each of the 170 images as a separate count. As third-degree felonies, Mr. Walsh would have faced up to 850 years in prison. Section 775.0847 does not constrain the State's charging discretion. Rather, section 775.0847 allows the State to reclassify violations of section 827.071 to second-degree felonies if the offender possesses ten or more images and the content of at least one image contains at least one of the types of images listed in the statute. Id. Read together, the statutes contemplate a possible separate charge for each image and allow for upward reclassification if the number of images totals ten or more. Section 775.0847 does not require the State, as it did here, to limit the charges to one offense per ten images in order to reclassify. Indeed, the State could have charged Mr. Walsh with 170 second-degree felonies. As the State pointed out at sentencing, Mr. Walsh benefitted by the State charging only one offense for each group of ten images.
In case 2D14-4735, the trial court sentenced Mr. Walsh to the guidelines minimum sentence of 18.5 years for count one, 15 years consecutive for count two, 15 years consecutive for count three, and 15 years each for counts four to ten concurrent to counts one to three, for a total of 48.5 years. In case 2D14-4920, the trial court sentenced him to 15 years for each of the seven counts, concurrent to each other and consecutive to the sentences in case 2D14-4735. His total sentence is 63.5 years.
Mr. Walsh's reliance on Hale is misplaced. Hale held that for multiple crimes committed during a single criminal episode, upon enhancing sentences for a habitual violent felony offender (HVFO) through mandatory minimums pursuant to section 775.084(4)(b), Florida Statutes (1991), the trial court could not further increase the total penalty by ordering the mandatory minimum sentences to run consecutively.
In Mills v. State, 822 So.2d 1284, 1286-87 (Fla.2002), the supreme court explained the difference between enhancement and reclassification statutes. Enhancement statutes increase the penalties for enumerated offenses defined in other statutory provisions. Id. at 1286; see also Pethtel, 177 So.3d at 637. Reclassification statutes, on the other hand, do not "create new offenses separate from those to which [they] make[ ] reference, [but they do] more than provide for minimum sentences applicable to those offenses; [they] also reclassif[y] the enumerated offense[ ]." Mills, 822 So.2d at 1287.
The statute in question here, section 775.0847(2), provides that "[a] violation of s. 827.071 ... shall be reclassified to the next higher degree" under certain statutorily dictated conditions. (Emphasis added.)
In Hale, the habitual felony offender statute provided for prison terms longer than the statutory sentencing maximums by increasing total prison time and by adding minimum sentences. 630 So.2d at 523; see also § 775.084. Had the trial court not found Hale to be an HVFO, it could have imposed his separate sentences for the possession and the sale of cocaine consecutively. Hale, 630 So.2d at 525. However, section 775.084(4)(b),
In holding that only one HVFO mandatory minimum term could be imposed, Hale "distinguished statutory sentences [for underlying offenses] in which the legislature... included a minimum mandatory sentence, such as the sentences for capital crimes,[
The trial court properly declined to extend Hale to Mr. Walsh's cases. Section 827.071(5)(a) reclassifies the offense; it does not enhance the sentence, the concern addressed in Hale. The maximum sentence for possession of child pornography, a third-degree felony with a statutory maximum of five years, is increased to fifteen years under section 775.0847(2) "reclassification" where the offender possessed ten or more images. Mr. Walsh was convicted of separate offenses, and even if the charges arose from the same criminal episode, without reclassification the trial court could have sentenced him separately and consecutively for each image.
Consecutive sentencing for multiple offenses in a single criminal episode has grave implications for computer child pornography offenses. The State can charge each image as a separate offense under section 827.071(5)(a). Thus, for example, up to nine images from the same
Mr. Walsh has not argued that his sentences are cruel and unusual. We note that the Fifth District, in Rogers v. State, 96 So.3d 922, 923 (Fla. 5th DCA 2012), held that a sentence of seventy-five years' prison for 125 counts of possession of child pornography did not constitute cruel and unusual punishment under the U.S. and Florida constitutions.
The trial court orally pronounced the following sentence in this case:
However, the Amended Sentence mistakenly imposes count four consecutively to counts one to three, as follows:
We remand for correction of this error.
Affirmed; remanded for correction of scrivener's error.
KELLY, LaROSE, and SLEET, JJ., Concur.
(Emphasis added.)
(Emphasis added.)