State v. Ruiz, 5D04-3268.

• Decision Date: 09 September 2005
• Docket Number: No. 5D04-3268.,5D04-3268.
• Citation: 909 So.2d 986
• Parties: STATE of Florida, Appellant, v. Ludwig Velarde RUIZ, Appellee.
• Court: Florida District Court of Appeals

909 So.2d 986

STATE of Florida, Appellant, v. Ludwig Velarde RUIZ, Appellee.

No. 5D04-3268.

District Court of Appeal of Florida, Fifth District.

September 9, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.

Bryan C. Hugo, Winter Park, for Appellee.

PALMER, J.

The State appeals the final order entered by the trial court dismissing, for lack of subject matter jurisdiction, the information filed against Ludwig Velarde Ruiz (defendant). Concluding that the trial court did indeed possess subject matter jurisdiction over this prosecution, we reverse.

The State charged the defendant with committing the crime of computer pornography.¹ The defendant filed a pre-trial motion to dismiss the information, alleging that the State lacked subject matter jurisdiction to prosecute the case because all of the acts committed by the defendant occurred outside the geographical boundaries of Florida. More specifically, the motion focused on the fact that the heading of the information alleged that the defendant committed the crime of "solicitation" of a minor via a computer and argued that the defendant's alleged crime of solicitation took place totally in Virginia, as he was sitting at his computer terminal; therefore, no crime had occurred in Florida. The motion cited to Battle v. State, 365 So.2d 1035 (Fla. 3d DCA 1978) to support dismissal.

At the dismissal hearing, the prosecutor argued against dismissal, asserting that the facts would establish that the defendant was guilty of committing the crime of attempt as well as the crime of solicitation with regard to the computer pornography charge.

The trial court entered a written order granting the defendant's motion to dismiss, concluding that the State lacked subject matter jurisdiction to prosecute the defendant because the defendant did not engage in any criminal conduct while located in the State of Florida. In so ruling, the court cited to Battle.

The State appeals, arguing that the trial court reversibly erred in dismissing the charges against the defendant. We agree.

Subject matter jurisdiction is expressly conferred upon a court by the state constitution or by statutes enacted pursuant to the constitution. Allegheny Cas. Co. v. Roche Surety, Inc., 885 So.2d 1016 (Fla. 5th DCA 2004).

Here, the defendant was charged with committing the crime of computer pornography, which is defined in section 847.0135 of the Florida Statutes (2003), as follows:

847.0135. Computer pornography; penalties

(1) Short title.—This section shall be known and may be cited as the "Computer Pornography and Child Exploitation Prevention Act of 1986."

(2) Computer pornography.—A person who:

(a) Knowingly compiles, enters into, or transmits by use of computer;

(b) Makes, prints, publishes, or reproduces by other computerized means;

(c) Knowingly causes or allows to be entered into or transmitted by use of computer; or

(d) Buys, sells, receives, exchanges, or disseminates, any notice, statement, or advertisement of any minor's name, telephone number, place of residence, physical characteristics, or other descriptive or identifying information for purposes of facilitating, encouraging, offering, or soliciting sexual conduct of or with any minor, or the visual depiction of such conduct, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense under this section shall not constitute a defense to a prosecution under this section.

(3) Certain uses of computer services prohibited.—Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

* * *

(5) State criminal jurisdiction.—A person is subject to prosecution in this state pursuant to chapter 910 for any conduct proscribed by this section which the person engages in, while either within or outside this state, if by such conduct the person commits a violation of this section involving a child residing in this state, or another person believed by the person to be a child residing in this state.

§ 847.0135, Fla. Stat. (2003)(emphasis added).² As the highlighted portions of the statute indicate, the statute contains a specific provision which establishes subject matter jurisdiction in Florida courts over cases where an out-of-state perpetrator engages in conduct proscribed by the statute with a person the perpetrator believes to be a child who resides in Florida. As such, the trial court possesses subject matter jurisdiction over the instant prosecution. In so ruling, we conclude that the holding in Battle v. State, 365 So.2d 1035 (Fla. 3d DCA 1978) is not controlling because, unlike the facts in Battle where the defendant was charged with committing the crimes of conspiracy to commit a felony and solicitation of a felony, here the controlling statute specifically provides for subject matter...