Lewd or lascivious images; penalties.

(1) As used in this section, the term:

(a) “Identifiable minor” means a person:

1. Who was less than 16 years of age at the time the image was created, altered, adapted, or modified, or whose image as a person less than 16 years of age was used in the creating, altering, adapting, or modifying of the image; and

2. Who is recognizable as an actual person by the person’s face, likeness, or other distinguishing characteristic, such as a unique birthmark, or other recognizable feature.

The term may not be construed to require proof of the actual identity of the identifiable minor.

(b) “Intentionally view” has the same meaning as in s. 827.071.

(c) “Lewd or lascivious image” means:

1. Any image depicting lewd or lascivious exhibition in violation of s. 800.04(7); or

2. Any image that has been created, altered, adapted, or modified by electronic, mechanical, or other means, to portray lewd or lascivious exhibition in violation of s. 800.04(7) committed in the presence of an identifiable minor.

(d) “Promote” has the same meaning as in s. 827.071.

(2) 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 a lewd or lascivious image. The possession of three or more copies of such photograph, motion picture, representation, or presentation is prima facie evidence of an intent to promote. A person who violates this subsection commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(3)(a) It is unlawful for any person to knowingly solicit, possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include a lewd or lascivious image. The solicitation, possession, control, or intentional viewing of each such photograph, motion picture, exhibition, show, image, data, computer depiction, representation, or presentation is a separate offense. If such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation includes a lewd or lascivious image depicting more than one minor, then each such minor in each such photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation that is knowingly solicited, possessed, controlled, or intentionally viewed is a separate offense. A person who violates this paragraph commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(b) Paragraph (a) does not apply to any material solicited, possessed, controlled, or intentionally viewed as part of a law enforcement investigation.

(4) Prosecution of a person for an offense under this section does not preclude prosecution of that person in this state for a violation of any other law of this state, including a law providing for greater penalties than prescribed in this section or any other crime punishing the sexual performance or the sexual exploitation of children.