DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

STATE OF FLORIDA,

Appellant,

v.

C.M., a child,

Appellee.

No. 4D13-2168 

[January 7, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Elijah H. Williams, Judge; L.T. Case No. 13-1629DL.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, 

Assistant Attorney General, West Palm Beach, for appellant.

Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief 

Assistant Public Defender, Fort Lauderdale, for appellee.

LEVINE, J.

The state appeals the trial court’s dismissal of a petition for delinquency 

filed against appellee based on the court’s finding that the juvenile did not 

commit a delinquent act. We find that the trial court did not err in 

dismissing the petition, because the act charged was a noncriminal 

violation and as such was not a delinquent act or violation of law as 

required to justify delinquency proceedings. We are therefore compelled 

to affirm the trial court’s dismissal of the state’s petition for delinquency. 

The state filed a petition for delinquency charging appellee, C.M., with 

violating section 847.0141(3)(a), Florida Statutes (2013), “Sexting (First 

Offense).” Appellee allegedly sent an “SMS photograph of her own vagina 

to a classmate who is a 13 year old [] female.” Appellee allegedly “admitted 

to sending the photograph . . . because she was ‘bored.’” 

Appellee moved to dismiss the petition arguing that the first offense of 

sexting, pursuant to section 847.0141(3)(a), was not a violation of law or a 

delinquent act thereby precluding the juvenile court from having 

jurisdiction. The state conceded that a first violation of the statute was 
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noncriminal, but argued that the juvenile court had jurisdiction based, in 

part, on legislative intent. The trial court found it had jurisdiction and 

thus denied appellee’s “motion to dismiss based upon jurisdictional 

reasons,” but granted the motion to dismiss “based on the fact that the 

child did not commit a delinquent act.” The state appeals the dismissal. 

The standard of review of an order dismissing a petition for delinquency 

is de novo. K.J. v. State, 107 So. 3d 523 (Fla. 4th DCA 2013). Further, 

“[t]he interpretation of a statute is a purely legal matter and therefore 

subject to the de novo standard of review.” Kasischke v. State, 991 So. 2d 

803, 807 (Fla. 2008) (citation omitted).

The trial court correctly denied appellee’s motion to dismiss based on 

jurisdiction. Circuit courts “shall have exclusive original jurisdiction” in 

“all cases relating to juveniles except traffic offenses as provided in 

chapters 316 and 985.” § 26.012(2)(c), Fla. Stat. (2013).1 In the present 

case, because appellee is a juvenile alleged to have violated a non-traffic 

offense, the circuit court has exclusive original jurisdiction. 

The trial court was also correct in granting the motion to dismiss based 

on finding that the juvenile did not commit a delinquent act. A first offense 

of sexting is a noncriminal violation not constituting a delinquent act or 

violation of law, and is thus not subject to prosecution through a petition 

for delinquency. 

Florida’s sexting statute provides:

A minor commits the offense of sexting if he or she 

knowingly . . . [u]ses a computer, or any other device capable 

of electronic data transmission or distribution, to transmit or 

distribute to another minor any photograph or video of any 

person which depicts nudity, as defined in s. 847.001(9), and 

is harmful to minors, as defined in s. 847.001(6).

§ 847.0141(1)(a), Fla. Stat. (2013). A minor who violates the section

“[c]ommits a noncriminal violation for a first violation, punishable by 

8 hours of community service or, if ordered by the court in lieu of 

community service, a $60 fine.” § 847.0141(3)(a), Fla. Stat. (2013) 

(emphasis added). “The court may also order the minor to participate in 

1 Under Chapter 316, circuit courts also have jurisdiction over minors alleged to 

have committed felony traffic violations, while county courts have jurisdiction 

over minors alleged to have committed any non-felony traffic violations.
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suitable training or instruction in lieu of, or in addition to, community 

service or a fine.” Id.

Florida Statutes defines “noncriminal violation” as:

When used in the laws of this state . . . [t]he term 

“noncriminal violation” shall mean any offense that is 

punishable under the laws of this state, or that would be 

punishable if committed in this state, by no other penalty than 

a fine, forfeiture, or other civil penalty. A noncriminal 

violation does not constitute a crime, and conviction for a 

noncriminal violation shall not give rise to any legal disability 

based on a criminal offense. The term “noncriminal violation” 

shall not mean any conviction for any violation of any 

municipal or county ordinance. Nothing contained in this 

code shall repeal or change the penalty for a violation of any 

municipal or county ordinance.

§ 775.08(3), Fla. Stat. (2013). 

Under the delinquency statutes, the state attorney files a petition for 

delinquency in the circuit court to obtain “a finding that a child has 

committed a delinquent act or violation of law.” §§ 985.0301(1), 

985.318(1), Fla. Stat. (2013); Fla. R. Juv. P. 8.030(a). The petition shall 

be filed “where the delinquent act or violation of law occurred.” § 

985.0301(4)(a), Fla. Stat. (2013). A “violation of law” or “delinquent act” is 

defined as “a violation of any law of this state, the United States, or any 

other state which is a misdemeanor or a felony or a violation of a county 

or municipal ordinance which would be punishable by incarceration if the 

violation were committed by an adult.” § 985.03(57), Fla. Stat. (2013). 

In the present case, as admitted by the state, a first violation of the 

sexting statute is a noncriminal violation. A noncriminal violation does 

not constitute a crime. Thus, by definition, a first offense of sexting does 

not fit within the definition of a delinquent act or violation of law under 

section 985.03(57). Because appellee’s alleged conduct does not fit within 

the statutory definition of a delinquent act or violation of law, a petition 

for delinquency is not the proper method to prosecute her alleged first 

offense of sexting. Therefore, the trial court properly dismissed the petition 

for delinquency. 

The state below, and now on appeal, argues that the trial court’s 

dismissal leaves it without a remedy. The state asserts that this court 

should authorize the use of a petition for delinquency, because it is the 
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only method to determine if a noncriminal first offense of sexting has 

occurred. However, the legislature has crafted other statutes that provide 

detailed procedures for prosecuting juveniles accused of committing other 

noncriminal violations.2 

Here, it is up to the legislature to draft statutes to effectuate the 

procedure for prosecuting a first offense of sexting. The courts “are not at 

liberty to add words to statutes that were not placed there by the 

Legislature. To do so, would be an abrogation of legislative power.” Bay 

Holdings, Inc. v. 2000 Island Blvd. Condo. Ass’n, 895 So. 2d 1197, 1197 

(Fla. 3d DCA 2005) (citations omitted). This premise follows the statutory 

canon known as the “Omitted-Case Canon,” meaning “nothing is to be 

added to what the text states or reasonably implies (casus omissus pro 

omisso habendus est). That is, a matter not covered is to be treated as not 

covered.” Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 93 (2012) (citing People v. Booth, 944 N.E.2d 

1137, 1139 (N.Y. 2011) (affirming the dismissal of the defendant’s 

indictment where the legislature had failed to criminalize the defined 

conduct under a revised statute, noting “that courts are not to legislate 

under the guise of interpretation,” and holding that if the statute’s 

“deficiency is to be corrected, it must be done through legislative action, 

as the Legislature is better equipped to correct any deficiencies that might 

exist”) (citations omitted)). See also Kortum v. Sink, 54 So. 3d 1012, 1018 

(Fla. 1st DCA 2010) (“It is fundamental that judges do not have the power 

to edit statutes so as to add requirements that the legislature did not 

include.”) (citation omitted); Fla. Dep’t of Rev. v. Fla. Mun. Power Agency, 

789 So. 2d 320, 323 (Fla. 2001) (“Even where a court is convinced that the 

Legislature really meant and intended something not expressed in the 

phraseology of the act, it will not deem itself authorized to depart from the 

plain meaning of the language which is free from ambiguity.”) (citation 

omitted). 

2 For example, under Florida’s curfew statute, a minor commits a noncriminal 

infraction and receives a written warning for a first violation, and a civil fine is 

imposed for subsequent violations. § 877.22, Fla. Stat. (2013). Florida’s truancy 

statutes require minors to attend school regularly and are noncriminal in nature. 

See § 1003.21, Fla. Stat. (2013). Prosecution is commenced through a truancy 

petition, various sanctions can be imposed for violations, and the circuit court 

may use its contempt power to enforce those sanctions. §§ 984.151, 1003.27, 

Fla. Stat. (2013). Lastly, multiple statutes make it unlawful for minors to possess 

tobacco products, alcohol, and nicotine products. §§ 569.11(1), 877.112, Fla. 

Stat. (2013). A minor in possession of these items commits a noncriminal 

violation and must sign and accept a civil citation, appear before court or pay a 

fine, and attend remedial programing.
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Here, as previously stated, only the legislature can add to the sexting 

statute to set out the procedure for the prosecution and determination if 

there has been a violation of the first offense. Until that is effectuated by 

the legislature, we are bound to the letter of the law and “must apply a 

statute as [we] find it, leaving to the legislature the correction of assorted 

inconsistencies and inequalities in its operation.” Guilder v. State, 899 So.

2d 412, 419 (Fla. 4th DCA 2005) (quoting State v. Aiuppa, 298 So. 2d 391, 

404 (Fla. 1974)). 

Because we are bound by the law as it was passed by the legislature 

and not allowed to add language to or fill gaps in the statute, we affirm the 

dismissal by the trial court of the petition for delinquency.

Affirmed.

CIKLIN and GERBER JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.