Florida’s “Per-Image” Child Pornography Law: A Constitutional and Sentencing Analysis

My love affair with video began on August 1, 1981, the day MTV launched. It led me to shooting music videos with massive 1980s cameras and eventually to owning a music video production company here in Orlando. This background gives me a unique perspective on the evolution of digital imaging. Back then, my expensive camera could shoot 30 frames (pictures) per second. Today, a consumer can buy a camera that captures over 120 frames per second.

But what happens when this explosion in camera technology collides with a Florida law that punishes the possession of child pornography on a per-image basis? It creates a serious constitutional question and a shocking sentencing paradox.

Facing Charges for Possession of Child Pornography in Orlando? These are among the most serious charges in our justice system, involving complex digital evidence and constitutional issues. You need an experienced defense attorney immediately. Call my office for a confidential consultation. Call John Guidry: (407) 423-1117

The Legal Problem: When Each Picture is a Separate Felony

Florida Statute § 827.071 makes the possession of each single photograph depicting child sexual abuse a separate felony, punishable by up to 5 years in prison, and this punishment per image increases to 15 years per image if several images are possessed (and, that’s almost always the case). As camera technology allows for more images to be captured per second, the potential prison sentence for a single act of recording can skyrocket into decades or even centuries.

The Constitutional Challenge: The Case of Pardue v. State

This issue was addressed in Pardue v. State, 2015 Fla. App. LEXIS 13406 (1st DCA Sept. 9, 2015). Mr. Pardue was convicted of sexual battery and, separately, 25 counts of possessing child pornography.

• The Facts: The 25 images were taken “in rapid succession” and appeared nearly identical to the naked eye, like holding down the shutter button on an iPhone.
• The State’s Argument: A detective testified that each image was technically unique because it had its own digital fingerprint, known as a “hash value.”
• The Defense Argument: Pardue’s attorney argued that 25 convictions for what was essentially one continuous act violated the Fifth Amendment’s protection against Double Jeopardy.
• The Ruling: The appellate court rejected the Double Jeopardy argument. They found that the legislature was crystal clear in the statute: possession of “each such photograph… is a separate offense”.

The Shocking Sentencing Paradox

This “per-image” sentencing scheme creates a shocking paradox in our justice system: the punishment for possessing images of child abuse can be far more severe than the punishment for committing the abuse itself.

In Pardue’s case, his sentence for the 25 images was more serious than his sentence for the actual sexual battery. This isn’t an isolated issue. In Arizona, a man named Morton Berger, who never molested a child, received a 200-year prison sentence for possessing 20 images. Meanwhile, a 2003 study found that the average prison sentence for child molesters across 13 states was less than 8 years.

It is hard to believe that the harm created by possessing images of abuse legally outweighs the direct, physical harm done to children who are victims of abuse—but that is the current state of the law.

John’s Takeaways

• Florida law makes the possession of EACH individual image of child pornography a separate felony offense.
• Courts have rejected Double Jeopardy challenges, ruling that the legislature intended to punish for each distinct image, even those taken in rapid succession.
• Digital evidence, such as unique “hash values,” is used by the State to prove that seemingly identical images are legally separate offenses.
• This per-image sentencing structure can lead to extremely long prison sentences that, paradoxically, can be far greater than the average sentence for committing a hands-on sexual battery.
• Defending these cases requires a deep understanding of complex constitutional law, digital forensics, and sentencing guidelines.

I have been defending clients against the most serious felony charges in Orange, Seminole, Osceola, Lake, Brevdard, and Volusia County since 1993. If you are facing these charges, you need a defense attorney who can navigate these difficult and complex issues, so please give my office a call, we can help.

About the Author, John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.