The full case caption appears at the
end of this opinion. GREEN, Judge. Armond Thibeault timely appeals the judgments and sentences adjudicatinghim guilty of possession of a computer generated photograph with intent to promote asexual performance by a child; utilizing a computer on-line service to solicit a child tocommit an illegal act; attempt to commit a lewd and lascivious act upon a child; multiplecounts of possession of a photograph which includes sexual conduct by a child; andmultiple counts of attempt to transmit obscene material to a minor. He was sentenced to21.4 months in prison followed by five years on probation. We affirm in part and reversein part. Stated briefly, from June 27, 1997, through July 10, 1997, in ManateeCounty, Florida, Thibeault was logged onto the computer service, America Online. Hisscreen name was RINGSS-12. He began having conversations over the internet with anindividual who he believed to be a fifteen year old boy residing in Bradenton, under thescreen name BOBBYC-15. The “boy” was in fact a Manatee County deputy sheriff who wasover the age of eighteen. Thibeault agreed to send sexually explicit photographs to thedeputy who he believed to be a fifteen year old boy. Through his computer drive, Thibeaultsent a number of pictures depicting children under the age of sixteen in sexually explicitpositions. Thibeault eventually agreed to meet BOBBYC-15 after indicating a desire toperform a number of explicit sexual acts upon him. A meeting was arranged between them and it was actually a woman deputysheriff dressed to look like a fifteen year old boy, who appeared. Thibeault wasimmediately arrested and essentially admitted all particulars of the charges against him. Multiple counts were filed and Thibeault raises three issues in thisappeal, only one of which we believe merits consideration. Counts XIX through XXXIII andXXXV through XLI were for attempt to knowingly transmit any obscene material to a minor.These counts were based on violations of section 847.0133, Florida Statutes (1997).Thibeault was charged with a separate count for each image that was sent to BOBBYC-15.These images were apparently sent in only one computer transmission. The record is notentirely clear on this point, but the parties seem to agree there was only one”episode” which was the basis for the charges under these counts. Thibeault contends that the “a/any” test enunciated by theFlorida Supreme Court required that only one count under section 847.0133 should have beencharged. According to the supreme court, when the article “a” precedes the itemdescribed in a statute, it is the intent of the legislature to make each separate itemsubject to a separate prosecution.
See Grappin v. State, 450 So. 2d 480(Fla. 1984). When the article “any” precedes the item, then only one prosecutionper criminal episode can take place, even for multiple items.
See State v. Watts,462 So. 2d 813 (Fla. 1985). The reason for this is that the use of the plural adjective”any” in connection with a singular noun renders the statute ambiguous.
See Wallace v. State, 724 So. 2d 1176 (Fla. 1998);
Watts, 462 So. 2d at 814. Florida courts since
Watts, have applied the “a/any” testas dispositive.
See Pierce v. State, 681 So. 2d 873 (Fla. 1st DCA 1996)(section 843.01 permits only one conviction of resisting an officer during a singleincident involving multiple officers). The “a/any” test has also been applied inthe context of felony possession of firearms.
See Hill v. State, 711 So. 2d1221 (Fla. 1st DCA 1998). The Fourth District dealt with section 827.071(5), Florida Statutes(1987), which made it a crime to possess “any” photograph, etc., that depictedsexual conduct by a child. The court in
Schmitt v. State, 563 So. 2d 1095 (Fla. 4thDCA 1990), applied the “a/any” test and said the use of the word “any”indicated the legislature intended the possession of several articles should be treated asa single offense. Subsequent to that decision, the legislature amended the statute andchanged the word “any” to “a.” We, therefore, affirm the convictions in the instant appeal, includingcount XIX, but direct that counts XX through XXXIII and counts XXXV through XLI, bedismissed. We reverse all sentences because of the necessity of preparing an adjustedscoresheet. Affirmed in part; reversed in part. PARKER, C.J., and CASANUEVA, J., Concur.
ARMOND THIBEAULT, Appellant, v. STATE OF FLORIDA, Appellee. Case No. 98-00885 In The District Court of Appeal of Florida Second District Appeal from the Circuit Court for Manatee County; Janette Dunnigan, Judge. Opinion filed April 30, 1999. Frederick W. Vollrath,Tampa, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARINGMOTION AND, IF FILED, DETERMINED.
