author: HAWKES, J.

text:
    Daniel B. GOPMAN, Petitioner, v. DEPARTMENT OF EDUCATION, State of Florida, Respondent.
    No. 1D07-1189.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.

      Miles J. Gopman, Miami, for Petitioner.
    Deborah K. Kearney, General Counsel, and Margaret O’Sullivan Parker, Deputy General Counsel, Tallahassee, for Respondent.
   HAWKES, J.

Petitioner challenged two orders of an Administrative Law Judge (ALJ). In the first order, the ALJ expelled Petitioner’s counsel from hearings concerning whether Petitioner qualified for a Bright Futures Scholarship, indicating counsel’s behavior was so unruly that his expulsion was necessary to preserve the proceeding’s decorum. The second order placed the case in abeyance, allowing Petitioner time to obtain new trial counsel. On December 4, 2007, we issued an order denying the petition and required Petitioner to show cause why this Court, on its own motion, should not impose appellate attorney’s fees against him pursuant to sections 57.105 and 120.595(6), Florida Statutes (2007). Having received the parties’ responses, we find fees should be imposed.

Pursuant to section 57.105(1), Florida Statutes (2007), attorney’s fees may be imposed when

the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of then-existing law to those material facts.

Id. The imposition of such fees means a claim was without legal merit when filed, or was later found to be without legal merit. See E. Indus. Inc. v. Fla. Unemployment Appeals Comm’n, 960 So.2d 900, 901 (Fla. 1st DCA 2007). Claims or defenses subject to the imposition of section 57.105 fees are those that a party or his counsel knew or should have known, at the time of filing, were not grounded in fact, or were not warranted by existing law or by reasonable argument for extension, modification, or reversal of existing law. See Dunn v. Kean, 928 So.2d 888, 383 (Fla. 1st DCA 2006); Albritton v. Ferrera, 913 So.2d 5, 9 (Fla. 1st DCA 2005); Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 493 (Fla.App. 3d DCA 2000). Significantly, section 57.105, Florida Statutes, does not require a party seeking fees to show the complete absence of a justiciable issue of fact or law, but permits fees to be recovered for any claim or defense that is insufficiently supported. See Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520, 523 (Fla. 1st DCA 2003); Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 418 (Fla. 1st DCA 2002).

Applying these principles to the arguments raised in the petition, we find appellate fees under 57.105 should be awarded here. Although we find all of counsel’s arguments lack merit, we will discuss three.

First, Petitioner’s counsel argued the ALJ should not have disqualified him as such action was an exercise of judicial contempt power, which ALJs do not possess. Without dispute, an ALJ has the authority to ensure an orderly hearing. Florida Administrative Code Rule 28-106.211 allows an ALJ to “issue any orders necessary to ... prevent delay, and to promote the just, speedy, and inexpensive determination” of a case. Similarly, section 120.65(9), Florida Statutes, authorizes an ALJ to impose “any reasonable sanction ] except contempt for violation of the rules of the division or failure to comply with a reasonable order.” Although these provisions would not permit the ALJ to incarcerate counsel, as a contempt citation would allow, they certainly permit an ALJ to disqualify a counsel engaging in unruly, disruptive behavior.

Here, the ALJ never mentioned contempt when he expelled Petitioner’s counsel, and the order of expulsion made no reference to contempt and imposed no fine or punishment. The order was not an exercise of criminal contempt power as it was issued to preserve decorum during the proceeding, not for punishment. See Guardado v. Guardado, 813 So.2d 236, 236 (Fla. 5th DCA 2002) (noting direct criminal contempt orders “provide for punishment rather than coerced compliance with a court order”). Given the foregoing, Petitioner should have known, at the time he filed his petition, that his argument concerning contempt was without legal merit.

Second, counsel claims his disqualification demonstrated how the ALJ conducted the hearings in a manner unduly favorable to Respondent. We find this claim also lacking in legal or factual merit. Three administrative hearings were held regarding Petitioner’s entitlement to a Bright Futures Scholarship. The transcript of each hearing reveals the ALJ’s extraordinary patience with Petitioner’s counsel.

During the first hearing, the ALJ gave Petitioner’s counsel wide latitude in his examinations, but found it necessary to warn him six times not to dispute a ruling after it had been made. At the second hearing, the ALJ opened the proceeding by warning Petitioner’s counsel the hearing would be terminated if he continued to make unwarranted interruptions. Despite this warning, the ALJ had to admonish Petitioner’s counsel on five instances to not interrupt him. Finally, during the third hearing, the ALJ warned Petitioner’s counsel on three instances that continued interruptions would result in disqualification. Counsel cannot continuously and purposely disrupt proceedings and then, when sanctioned, raise a claim of partiality-

Third, counsel argues he acted with proper decorum during the hearings and objected merely to preserve the record for this Court’s review. An examination of each hearing reveals it was not necessary for counsel to conduct himself in the manner he did to preserve issues for appeal.

For instance, in the first hearing, Petitioner’s counsel interrupted the ALJ sixteen times, interrupted witnesses four times, and argued with the ALJ six times regarding rulings. The ALJ warned Petitioner’s counsel to not dispute a ruling once it had been given, informed him that further argument would terminate the hearing, and on three instances admonished him to not yell or shout his objections. In response, Petitioner’s counsel claimed the ALJ did not understand the issues and he would proceed with his line of inquiry even if the objections to his questions were “overruled.”

At the start of the second hearing, the ALJ again warned Petitioner’s counsel that continued interruptions would result in his disqualification and the termination of the hearing. This warning was repeated during the course of the hearing. Nevertheless, Petitioner’s counsel interrupted the ALJ nine times, interrupted witnesses twice, accused the ALJ of predetermining the case twice, and argued with the ALJ’s rulings four times, stating that whether the ALJ found his questions relevant “does not matter.”

During the third hearing, over the course of 26 transcript pages, Petitioner’s counsel interrupted the ALJ eighteen times, accused Respondent’s counsel of asking “phony questions,” and claimed the ALJ was “mischaracterizing the law,” “railroading [the] case,” and lacked “comprehension ... of the requirements of the State.” Such interjections occurred despite the ALJ’s repeated warnings that Petitioner’s counsel should not interrupt. In particular, the ALJ warned Petitioner’s counsel he should “not yell and carry on like that. It’s unprofessional and not proper decorum for this proceeding.” The ALJ next warned Petitioner’s counsel that if he continued his interruptions, “we will not proceed with you participating in the hearing” and, following further disruption, stated “You’re listening or you’re leaving.” Following a final warning, Petitioner’s counsel was disqualified.

Given these examples, counsel’s assertion that he behaved properly is unsupported. The repeated insults and interruptions, which occurred despite the ALJ’s frequent warnings of disqualification, demonstrate Petitioner’s counsel acted in an unprofessional and improper manner. Because attorneys preserve issues for appellate review without resorting to this kind of behavior, counsel knew, or should have known, that raising this issue on appeal was not supported by the facts.

On this Court’s own motion, Respondent is awarded appellate attorney’s fees to be paid in equal amounts by Petitioner and his attorney pursuant to section 57.105(1), Florida Statutes. The cause is REMANDED to the ALJ to determine the reasonable attorney’s fees Respondent incurred.

POLSTON and THOMAS, JJ., concur.

      . An argument for a reasonable extension, modification, or reversal of existing law, requires the party to acknowledge before the trial court that they are seeking such an extension, modification, or reversal of the existing law. To be reasonable, an argument must be made in good faith; to be in good faith, an argument must acknowledge the state of the current law. See Mercury Ins. Co. of Fla. v. Coatney, 910 So.2d 925, 927 (Fla. 1st DCA 2005).

      . Concerning jurisdiction, although this Court has already denied Petitioner’s petition, it may still impose fees pursuant to section 57.105. See Judges of the Eleventh Judicial Circuit v. Janovitz, 635 So.2d 19, 20 (Fla.1994) (finding when a motion for attorney’s fees has been timely filed, the court may award fees within a reasonable time after the mandate is issued). Further, this Court has jurisdiction to award appellate attorney's fees in proceedings challenging agency action. See E. Indus., Inc., 960 So.2d at 901.

      . Section 57.105 allows an award of fees to be paid solely by the litigant if counsel can show that he "acted in good faith, based on the representations of [the] client as to the existence” of material facts. Unfortunately, section 57.105 does not allow for an award of fees to be paid solely by an attorney when the client acts "in good faith, based on the representations of” the attorney as to the legal sufficiency of claim or defenses. If the law allowed, we would order the fees to be paid solely by counsel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Scott A. STANLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1535.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Scott A. Stanley, pro se, Petitioner.
    Bill McCollum, Attorney General; C. Bowen Robinson and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed an appeal from the July 25, 2005, judgment and sentence in Leon County Circuit Court case number 2004-CF-2759. Upon issuance of mandate in this cause, the circuit court shall treat this court’s opinion as the notice of appeal. Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    Walter A. McNEIL, Secretary, Florida Department of Corrections, Petitioner, v. Ruben RAMOS-PEREZ, Respondent.
    No. 1D07-4945.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Kathleen Von Hoene, General Counsel, and Carolyn J. Mosley, Assistant General Counsel, Florida Department of Corrections, Tallahassee, Petitioner.
    Ruben Ramos-Perez, pro se, for Respondent.
   PER CURIAM.

The Department of Corrections seeks certiorari review of an order granting mandamus relief and directing it to follow the plain language of the sentencing court’s order concerning the award of credit for time previously served. During the pendency of this proceeding, however, the sentencing court has amended the judgment and sentence to substantially alter the award of credit. We conclude that the sentencing court’s action moots this proceeding, and dismiss the petition for writ of certiorari accordingly.

PETITION DISMISSED.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


text:
    Diane BROWN, Appellant, v. BAY COUNTY, St. Joe Co., Clara Avenue, L.L.C., Florida Department Of Community Affairs, and Panhandle Citizens Coalition, Appellees.
    No. 1D07-5207.
    District Court of Appeal of Florida, First District.
    Feb. 25, 2008.
    Diane Brown, pro se, Appellant.
    Terrell K. Arline, Panama City, for Ap-pellee Bay County.
    Kelly A. Martinson, Tallahassee, for Ap-pellee Department of Community Affairs.
    Bryan Duke, Tallahassee, for appellee St. Joe Company.
    Michael P. Dickey of Barron, Redding, Hughes, Fite, Sanborn, Kiehn and Dickey, P.A., Panama City; Daniel H. Cox, Carra-belle; Ralf G. Brookes, Cape Coral, for appellees.
   PER CURIAM.

Having considered the appellant’s response to this Court’s November 14, 2007, show cause order, appellee Bay County’s motion to dismiss the appeal is hereby granted. See Fla. R.App. P. 9.110(Z). Ml pending motions are hereby denied as moot.

WEBSTER, KAHN, and ROBERTS, JJ., concur.


text:
    Lee JUPITER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5910.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2008.
    Sonya M. Rudenstine, Gainesville, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See In re Amendments to Florida Rules of Appellate Procedure-Rule 9.141 and Rule 9.142, 969 So.2d 357 (Fla.2007); see also, Mendez-Perez v. Perez-Perez, 656 So.2d 458 (Fla.1995).

WEBSTER, BENTON, and POLSTON, JJ., concur.


author: SILBERMAN, Judge.

text:
    Rashaun Artea McCULLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5611.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Rashaun McCullough appeals from judgments and sentences for three counts of robbery with a firearm that were entered following his plea agreement with the State. McCullough argues that the sentences violate the terms of his plea agreement. We affirm McCullough’s convictions but reverse his sentences and remand for resentencing in accordance with this opinion.

McCullough’s written plea agreement with the State provided for concurrent sentences of fifteen years’ imprisonment as a habitual violent felony offender with a minimum mandatory term of ten years and credit for time served on each charge of robbery. The written agreement did not condition McCullough’s plea or the sentences that were to be imposed in any way. At the plea hearing, McCullough’s counsel described the terms of the plea agreement, including the fifteen-year sentences, and stated that McCullough “is prepared to give the name of the individual that went into the hotels who was masked and participated in the robbery. And [he] realizes that if called upon by the State and/or the Court, he would have to give truthful testimony against that individual.” (Emphasis added.) The State did not object to or dispute defense counsel’s representations.

The trial court conducted a plea colloquy and found that the plea was freely and voluntarily given and that a factual basis existed for it. The court then asked McCullough to identify the masked participant in the robberies, and McCullough named Anthony Swanson. The court proceeded to question McCullough about the robberies, stating, “And, I’m only interested in truthful testimony, as you can well imagine. Whose idea was this whole thing?” McCullough responded, “Shaun Bryant.” When the trial court asked the State’s position, the prosecutor disagreed that it was Bryant’s idea. The trial court then stated:

Well, what I’m going to do is delay a sentence in this case and allow your client to meet with the detective and the assistant state attorney, Ms. Wardell, and, in effect, make a full and complete accounting of these three incidents. Again, I think that you need to understand I told your attorney this morning, that I would not accept a plea for anything less than twenty years minimum mandatory. And you have an opportunity to reduce that by five, by giving truthful testimony. And that’s the only condition that I’ve put on it. So I have to be satisfied and they have to be satisfied that, in effect, they’re receiving truthful testimony.
So, I’ll receive your plea, adjudicate you guilty ...

At the sentencing hearing held nearly three months later, the prosecutor contended that McCullough had breached the plea agreement and should be sentenced to twenty years’ imprisonment for each robbery. The prosecutor pointed out that at the plea hearing, McCullough claimed that Shaun Bryant was the “mastermind” behind the robberies, which the prosecutor knew was not true. The prosecutor then explained what happened after the plea hearing, as follows:

We went over to the jail and he said he admitted, “Ms. Wardell, I’m sorry I said that. He wasn’t the mastermind. I was mad, I made that up.” He lost credibility at that point.
I proceeded to take his statement. He admitted his involvement in these charge [sic] offenses. However, what he didn’t know is that I had information that he was involved in other crimes that he didn’t mention, that he left out and could have come forward and fessed up. He didn’t. There’s nothing that he said to me that was helpful in any way.

McCullough’s counsel responded that McCullough had agreed to give truthful testimony but the State did not want to use that information and “nobody can say it was or was not truthful.”

The trial court proceeded to impose sentences of twenty years’ imprisonment with minimum mandatory terms of fifteen years for each of the robberies. When McCullough stated, “I’m not taking 20 years,” the court responded that was part of the agreement. McCullough stated that he had “agreed to 15 years, 10 mandatory. I didn’t agree to 20 years.” The trial court told McCullough to “[h]ave your attorney file the appropriate motion.”

One week later, McCullough, through his counsel, filed a Motion to Withdraw Plea, asserting that his plea was based on the agreement to concurrent sentences of fifteen years’ imprisonment with ten years’ minimum mandatory. The motion stated that the trial, court added a condition to the plea agreement that McCullough “could be sentenced to twenty years minimum mandatory, but that it could be reduced by five years by giving truthful testimony.” McCullough contended that the court’s sentences of twenty years’ imprisonment with fifteen years’ minimum mandatory were contrary to the plea agreement.

At the hearing on the motion to withdraw plea, the State conceded that as to the minimum mandatory portions of the sentences, the plea agreement called for ten years’ minimum mandatory instead of fifteen years’ minimum mandatory. The trial court amended the judgments and sentences by reducing the minimum mandatory portion to ten years. The parties also discussed the condition that McCullough would avoid the imposition of twenty-year sentences if he gave truthful testimony. The trial court reviewed the transcript of the plea hearing, noting that “it says that he realizes if called upon by the State he would give truthful testimony.” The court then stated that it had “made a finding, apparently, at [the] actual sentencing that [McCullough] hadn’t been truthful so he didn’t get the reduction.” The court added that the issue of whether McCullough got the reduction for giving truthful testimony would be addressed on appeal.

McCullough argues in this appeal that the trial court erred in finding that he violated the plea agreement by not being truthful and that the court should have imposed fifteen-year sentences. He states that he agreed to provide, and did provide, the name of the masked participant in the robberies. He adds that he agreed to testify truthfully against that person, Anthony Swanson, but that the State did not ask him to testify. He contends that the State did not establish that he violated any term of the plea agreement. The State responds that because McCullough made conflicting statements about whose idea it was to commit the robberies, he destroyed his own credibility and made worthless any testimony that he might give against Anthony Swanson, thereby violating the agreement.

In McCoy v. State, 599 So.2d 645 (Fla.1992), the Florida Supreme Court reviewed a sentence that the trial court imposed after finding that the defendant violated the terms of a plea agreement. The court stated that “when entering into a plea agreement, the State must make sure that the specific terms of the agreement are made a part of the plea agreement and the record.” Id. at 649. If the defendant’s noncompliance with the specific terms of the plea agreement is at issue, “the defendant must have a full opportunity to be heard at an evidentiary hearing.” Id. at 650. Further, “to vacate the plea and sentence, the court must find that there has been substantial noncompliance with the express plea agreement.” Id.

The trial court stated that McCullough had to provide a full and complete accounting of “these three incidents,” but nothing in the written agreement or expressed at the plea proceedings required McCullough to confess his involvement in other crimes. Although the State indicated that McCullough’s information was not “helpful,” the plea agreement did not require McCullough to provide some additional helpful, but unspecified, information to the State. The plea agreement required McCullough to identify the masked participant, which he did by identifying Swanson, and to testify truthfully against that individual “if called upon by the State and/or the Court.” (Emphasis added.) The State may have elected not to have McCullough testify because it felt that McCullough’s credibility was damaged, but it did not establish that McCullough refused to testify or that he testified falsely against Swanson.

Concerning McCullough’s statement at the plea hearing identifying Shaun Bryant as the mastermind, the prosecutor immediately expressed her disbelief. As a result, the trial judge directed McCullough to meet with the detective and the prosecutor and stated, “I have to be satisfied and they have to be satisfied that, in effect, they’re receiving truthful testimony.”

The State argues, as it did in the trial court, that because McCullough gave conflicting statements any trial testimony he might give would be worthless. The difficulty with this argument is that the court directed McCullough to meet with the prosecutor and to be truthful after the State disputed McCullough’s identification of Bryant as the mastermind. McCullough complied with the court’s direction by meeting with the prosecutor and truthfully acknowledging that Bryant was not the mastermind.

Based on the terms of the plea agreement, the State’s decision not to have McCullough testify at Swanson’s trial is not evidence that McCullough violated the plea agreement. In Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993), the Fourth District addressed a similar situation. Spencer and the State entered into a plea agreement that required Spencer to “testify truthfully if required.” Id. at 1211. At sentencing, the State argued that Spencer violated the agreement when, in an interview given after the plea agreement had been reached, he directly contradicted an earlier statement that he had given to the State’s investigator. The court observed the following:

The mere fact that Spencer’s later statement contradicted his initial statement does not constitute a breach of an agreement merely to testify truthfully, without reference to any identified previous statement. As in McCoy, if the state failed to make it an express part of the agreement that he was expected to testify in accordance with his initial statement, the trial court was precluded from finding that he had breached the agreement actually reached.

Id. at 1212.

Here, there is no evidence that McCullough did not give a full, truthful, and complete accounting of the three robberies when he met with the prosecutor after the plea hearing, as required by the trial court. Also, although McCullough agreed to testify truthfully if called upon to do so by the State and the trial court, the State later elected not to use his testimony at trial. Under these circumstances, and consistent with Spencer, we conclude that the State failed to establish that McCullough breached the terms of the plea agreement. Because the trial court sentenced McCullough to the twenty-year sentences based upon its erroneous conclusion that McCullough breached the plea agreement, we reverse the sentences.

Citing to Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), McCullough asks that we order specific performance of the plea agreement and that we direct the trial court to impose sentences of fifteen years’ imprisonment with ten years’ minimum mandatory. In response, the State cites to Rollman v. State, 887 So.2d 1233 (Fla.2004), and contends that if McCullough prevails in this appeal, he is not entitled to specific performance of the plea agreement. The State argues that he may either withdraw his plea or keep his current twenty-year sentences with ten years’ minimum mandatory.

Neither Santobello nor Rollman address the circumstances present in this case. In Santobello, the United States Supreme Court stated that “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 262, 92 S.Ct. 495; see also Hunt v. State, 613 So.2d 893, 897 (Fla.1992) (quoting Santobello, 404 U.S. at 262, 92 S.Ct. 495). The Supreme Court remanded the case for the state court to determine whether the circumstances required specific performance of the plea agreement or, alternatively, granting San-tobello an opportunity to withdraw his plea. Santobello, 404 U.S. at 262-63, 92 S.Ct. 495. In his concurring opinion, Justice Douglas stated that the defendant’s preference should be given considerable, if not controlling, weight in determining the remedy. Id. at 267, 92 S.Ct. 495. However, Santobello, which concerned the breach of a plea agreement by the State, is not directly applicable here.

In contrast, Rollman states that “a trial court retains the authority to alter a prior plea arrangement up until the time sentence is imposed, so long as the trial court provides the defendant an opportunity to withdraw any plea that was entered in reliance on the promised sentence.” 887 So.2d at 1235; see also Goins v. State, 672 So.2d 30, 31 (Fla.1996) (reiterating that a judge is not bound to honor a plea agreement for a specified sentence, even if the plea has been accepted, but if the judge imposes a greater sentence, the defendant is entitled to withdraw the plea).

Here, the trial court accepted the plea agreement reached by McCullough and the State with modification as to McCullough’s obligations and the sentences that he faced. McCullough performed under the agreement, including the conditions imposed by the trial court, and the State received the benefit of the plea agreement. At sentencing, the court did not reject the agreement or abandon its earlier acceptance of the agreement. Instead, it simply sentenced McCullough based upon its erroneous conclusion that McCullough had breached the agreement. Under these circumstances, McCullough is entitled to the sentences that the trial court stated would be imposed upon his fulfillment of the conditions of the plea agreement. Accordingly, we reverse McCullough’s sentences and remand for the trial court to impose fif-

teen-year sentences with ten-year minimum mandatory terms of imprisonment.

Reversed and remanded.

NORTHCUTT, C.J., and STRINGER, J., Concur.

      . In 1994, the Florida Supreme Court adopted amendments to Florida Rule of Criminal Procedure 3.170 that were “in accord with our decision in McCoy." Amendments to Florida Rules of Criminal Procedure 3.170 & 3.700, 633 So.2d 1056, 1056 (Fla.1994).

      . The State has not asserted that at the meeting McCullough failed to identify the actual mastermind or otherwise did not give a full and complete accounting of the charged crimes.


author: WALLACE, Judge.

text:
    Sherril KALMAN, individually and as Personal Representative of the Estate of Edward Kalman, deceased, Appellant, v. PASCO-HERNANDO SURGICAL ASSOCIATES, P.L., Appellee.
    No. 2D06-4309.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.
    Wil H. Florin of Florin Roebig, P.A., Palm Harbor, for Appellant.
    Mark Hicks and Gary A. Magnarini of Hicks & Kneale, P.A., Miami, for Appellee.
   WALLACE, Judge.

The trial court vacated a judgment that had been entered in favor of Sherril Kal-man, individually, and as Personal Representative of the Estate of Edward Kalman, deceased, and against Pasco-Hernando Surgical Associates, P.L. (PHSA), in the amount of $644,359.72. The judgment was entered after PHSA failed to file a motion for trial in accordance with Florida Rule of Civil Procedure 1.820(h) within twenty days of the service of an arbitrator’s decision in a nonbinding arbitration. See § 44.103(5), Fla. Stat. (2005). Ms. Kalman appeals the trial court’s order that vacated the judgment.

We reject Ms. Kalman’s argument that the trial court did not have jurisdiction to grant PHSA relief from the judgment under Florida Rule of Civil Procedure 1.540. See Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259, 260 (Fla. 4th DCA 1993). In addition, the trial court’s finding that the omission by PHSA’s counsel to timely serve a motion for trial de novo resulted from mistake and inadvertence is amply supported by competent substantial evidence in the record. Ms. Kalman has failed to establish that the trial court grossly abused its discretion in deciding to grant PHSA relief from the substantial adverse judgment. See Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); Halpern v. Houser, 949 So.2d 1155, 1157 (Fla. 4th DCA 2007). For these reasons, we affirm the trial court’s order.

Affirmed.

WHATLEY and KELLY, JJ„ Concur.


text:
    Stavre JANESKI, Appellant, v. Vase JANESKA, Appellee.
    No. 2D07-2914.
    District Court of Appeal of Florida, Second District.
    Feb. 29, 2008.
    Cynthia J. Dienstag, Miami, for Appellant.
    Vase Janeska, pro se.
   GALLEN, THOMAS M., Associate Senior Judge.

Stavre Janeski, the former husband, appeals the trial court’s order rendered May 30, 2007, granting a writ of bodily attachment based on his failure to comply with its order of February 27, 2007, which granted the former wife’s motion for contempt and to enforce her award of alimony. Postjudgment contempt orders are appealable under Florida Rule of Appellate Procedure 9.130(a)(4). Remington v. Remington, 705 So.2d 920, 921 (Fla. 4th DCA 1997). We reverse the order and remand with directions to vacate the writ of bodily attachment.

The parties executed a marital settlement agreement which was incorporated in the trial court’s amended final judgment of dissolution rendered August 24, 2006. The agreement provided that the former husband was to pay his former wife the total sum of $270,000 in alimony payable in installments of $54,824.18 contemporaneous with the signing of the agreement, $107,587.91 by August 31, 2006, and $107,587.91 by March 1, 2007.

Upon the former husband’s failure to pay the August 31, 2006, installment, the former wife filed a motion for contempt and to enforce. There is no record of a hearing on that motion, but the former wife filed a new “emergency” motion for contempt and to enforce on December 4, 2006, which the trial court granted, apparently without a hearing, on February 27, 2007. The trial court found the former husband in contempt, found that he had the “present ability to pay,” established an eight-week payment schedule, and provided that nonpayment by the former husband would result “without further hearing” in an immediate writ of bodily attachment for incarceration until “purge or the expiration of eight weeks, whichever shall occur first.”

Upon the former husband’s continued failure to pay, the former wife filed a new motion for contempt and to enforce and noticed the motion for hearing on April 25, 2007. The former husband did not appear at the hearing, although he was represented by counsel who argued that the trial court could not imprison the former husband without a new finding that he did currently have a “present ability to pay.” In support of the argument that the former husband did not have the present ability to pay, counsel proffered the testimony of a financial representative of the former husband. The trial court rejected the proffered testimony. The former wife was represented but offered no evidence that the former husband did have the present ability to pay.

Following the hearing, the trial court rendered its order finding that the former husband “has been previously found to have the ability to pay ... and continues to have the present ability to pay all amounts previously ordered.” Because there was no evidence supporting the former husband’s then present ability to pay, the trial court apparently relied on the presumption created by a prior judgment that “the defaulting party has the ability to pay,” unless that party presents evidence to the contrary. Bowen v. Bowen, 471 So.2d 1274, 1280 (Fla.1985). The trial court ordered that a writ of bodily attachment “shall immediately issue for the Former Husband’s failure to comply with the Court’s Order of February 27, 2007.”

We agree with the former husband that the trial court abused its discretion in ordering the writ of bodily attachment under the circumstances here. In Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997) (superseded by rule as noted below), Pompey, the defaulting party, did not appear at the hearing to offer evidence to rebut the presumption based on a prior order that he had the ability to pay. Pompey was ordered incarcerated until payment of the purge amount. The Fourth District held:

Incarceration is an option only if the trial court “makes a separate, affirmative finding” that the contemnor possesses the present ability to comply with the purge amount.... There is nothing in this record to show that Pompey could pay a purge amount of $22,100 and thus secure his release from incarceration.
The trial court must have some affirmative evidence before it that the obli-gor has the “keys to his cell” in his pocket.... If the contemnor must have the keys to the cell in his pocket, they cannot be made of paper presumptions when cold hard cash ... is required to get out of jail.

Id. at 1015 (citations omitted). This court cited Pompey with approval in Akridge v. Crow, 903 So.2d 346, 351-52 (Fla. 2d DCA 2005), while pointing out that since Pompey was decided, the supreme court has adopted a rule of procedure for contempt in family law cases which codifies the case law. Florida Family Law Rule of Procedure 12.615(c)(2)(B) provides that in any civil contempt hearing where the alleged contemnor fails to appear, the trial court must “set a reasonable purge amount based on the individual circumstances of the parties.” The trial court may then issue a writ of bodily attachment but must “direct that, upon execution of the writ ... the alleged contemnor be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay support and, if so, whether the failure to pay such support is willful.” Id. Further, subsection (e) provides:

The court shall include in its order [of incarceration] a separate finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding_ Upon incarceration, the contemnor must be brought before the court within 48 hours for a determination of whether the con-temnor continues to have the present ability to pay the purge.

Fla. Fam. L.R.P. 12.615(e).

In this case, the trial court simply relied on its prior findings and its prior purge amount and presumed the former husband continued to have the “present ability to pay” that amount. Since the trial court did not comply with the requirements of rule 12.615, we must reverse the order and remand with directions to vacate the writ of bodily attachment.

Reversed and remanded.

WHATLEY and WALLACE, JJ„ Concur.


author: KIMBALL, Justice.

text:
    STATE of Louisiana v. Leon D. FUSSELL.
    No. 2006-K-2595.
    Supreme Court of Louisiana.
    Jan. 16, 2008.
    Rehearing Denied March 7, 2008.

      Charles C. Foti, Jr., Attorney General, J. Reed Walters, District Attorney, Steven Paul Kendrick, Assistant District Attorney, for applicant.
    Louisiana Appellate Project, Mark Owen Foster, for respondent.
   KIMBALL, Justice.

|TWe granted certiorari in this matter to resolve a split between the circuit courts of appeal regarding the proper interpretation and application of La. R.S. 14:81.1(A)(3), relating to the intentional possession of pornography involving juveniles. For the reasons that follow, we hold that the language of La. R.S. 14:81.1(A)(3) allows a separate count to be charged for each child, in each performance, captured in any photographs, films, videotapes, or other visual reproductions that a defendant intentionally possesses. We therefore find that the Court of Appeal, Third Circuit erred in reducing Defendant’s sixteen convictions for intentional possession of child pornography to a single conviction, reverse that judgment, and reinstate the trial court’s convictions.

FACTS AND PROCEDURAL HISTORY

On June 6, 2002, Defendant was indicted by a grand jury on one count of aggravated rape, in violation of La. R.S. 14:42, as well as nineteen counts of intentional possession of pornography involving juveniles, in violation of La. R.S. 14:81.1(A)(3). Seventeen of the nineteen counts of intentional possession of child pornography were for corresponding computer-printed pages, each page containing 12one or more images, that were found in a closet at Defendant’s mother’s home (where Defendant lived at the time). The other two counts of intentional possession of child pornography were also for corresponding computer-printed pages, each page containing one or more images, that were found in Defendant’s truck at the time of his arrest.

Trial was held in the Twenty-Eighth Judicial District Court, Parish of Lasalle, on November 29 and 30, 2005, after which a jury convicted Defendant of aggravated rape and sixteen of the nineteen pornography charges. Defendant was sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for the aggravated rape conviction; ten years at hard labor without the benefit of parole, probation, or suspension of sentence for count sixteen of the pornography charges; and two years at hard labor for each of counts four through fifteen and seventeen through nineteen of the pornography charges. All of these sentences were to run consecutively. Additionally, the trial court ordered Defendant to pay restitution for any medical counseling and. health expenses that the rape victim and her family might incur.

Defendant appealed his convictions and sentences, offering what constitutes thirty-three assignments of error in one attorney-filed brief and three pro se briefs. On September 27, 2006, after thoroughly addressing each assignment of error, the Third Circuit Court of Appeal affirmed Defendant’s conviction for aggravated rape. )sThe court of appeal also held that each of Defendant’s sixteen convictions for intentional possession of pornography involving juveniles was supported by at least one photograph showing a “sexual performance involving a child under the age of seventeen,” as required by La. R.S. 14:81.1(A)(3). Despite the First Circuit Court of Appeal’s previous finding to the contrary in State v. Kujawa, 05-0470 (La. App. 1 Cir. 2/22/06), 929 So.2d 99, writ denied, 06-0669 (La.10/6/06), 938 So.2d 65, the Third Circuit found the language of La. R.S. 14:81.1(A)(3) “ambiguous as to what constitutes an allowable unit of prosecution[ ]” for the intentional possession of pornography involving juveniles. State v. Fussell, 06-324, p. 18 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, 125. Resolving this ambiguity in favor of lenity, the Third Circuit thus reduced Defendant’s multiple possession of pornography convictions to a single conviction. Finally, though the Third Circuit found each of Defendant’s other assignments of error to be without merit, it did find one error patent in the trial court’s order for “restitution without specifying the amount of restitution and without specifying on which count or counts the restitution was being imposed.” Id., p. 43, at 139.

^Because the Third Circuit Court of Appeal reduced Defendant’s possession of pornography convictions to a single conviction and found that the trial court’s restitution order lacked the requisite specificity, the court of appeal ruled that the case be remanded to the trial court for resentenc-ing with an instruction “to specify the amount of restitution imposed as well as on which count or counts the restitution is imposed.” Id.

The State of Louisiana subsequently timely filed the instant application, asserting that the Third Circuit erred in concluding that La. R.S. 14:81.1(A)(3) was imper-missibly ambiguous. The State argues that the Third Circuit should have followed the First Circuit’s Kujawa analysis, which held that a close reading of the statute reveals a legislative intent to proscribe the possession of any single pornographic image depicting a child and, therefore, that a defendant can be charged with a separate count for each such image. Accordingly, the State urges this Court to overrule the Third Circuit and adopt the First Circuit’s analysis and application of La. R.S. 14:81.1(A)(3).

In opposition, Defendant asserts that the Third Circuit was correct in its finding that the First Circuit’s Kujawa analysis is flawed. Defendant contends that the language of La. R.S. 14:81.1(A)(3) does not support multiple convictions for what should be considered a single act of possession of pornography involving juveniles. According to Defendant, the language of La. R.S. 14:81.1(A)(3) was, at best, | sambiguously written and, thus, the rule of lenity still demands that his possession of multiple pornographic images be treated as a single offense, subject to a single sentence. Defendant therefore argues that the Third Circuit was correct in reducing his sixteen possession convictions to one and should, in this regard, be affirmed.

“UNIT OF PROSECUTION”

At the outset, we note that the conflicting First and Third Circuit Courts of Appeal decisions that prompted our present inquiry, as well as the briefs filed on behalf of the State and Defendant, describe our task as one to determine the proper “unit of prosecution” under La. R.S. 14:81.1(A)(3). The term “unit of prosecution,” however, does not appear in our Criminal Code and is not commonly used in the State of Louisiana. Rather, the term emerged within federal jurisprudence as shorthand for the determination necessary for deciding whether a defendant’s conduct “gives rise to multiple convictions or punishments ...” under an applicable statute. United States v. Reedy, 304 F.3d 358, 365 (5th Cir.2002); see also Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (addressing the “recurring problem” of determining “ ‘[wjhat Congress ha[d] made the allowable unit of prosecution[ ]’ under a statute which does not explicitly give the answer” (citation omitted)). While “unit of prosecution” is not commonly used within this state’s jurisprudence, the inquiry that the term identifies — determining how many counts a defendant can be charged with under a criminal statute — is often necessary. See, e.g., State v. Joles, 492 So.2d 490 (La.1986), cert. denied, 479 U.S. 1056, 107 S.Ct. 933, 93 L.Ed.2d 984 (1987) (“At issue in this case is the legality of imposing separate sentences on defendant after convictions of twenty counts (charged separately in a single bill of information) of violating La. R.S. 14:67 by twenty separate acts of theft .... ’’(emphasis added)). Accordingly, to maintain consistency within our jurisprudence, this Court will forego use of the term “unit of prosecution” |fiwithin this opinion and, instead, focus our discussion on “counts” and “convictions.”

LAW AND DISCUSSION

La. R.S. 14:81.1(A), in which La. R.S. 14:81.1(A)(3) appears, proscribes the offense of pornography involving juveniles, which is any of the following:

(1) The photographing, videotaping, filming, or otherwise reproducing visually of any sexual performance involving a child under the age of seventeen.
(2) The solicitation, promotion, or coercion of any child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving a child under the age of seventeen.
(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.
(4) The consent of a parent, legal guardian, or custodian of a child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving the child.

(Emphasis added).

The issue presented in this case is how La. R.S. 14:81.1(A)(3) should be applied when a defendant intentionally possesses multiple images of pornography involving juveniles. More specifically, we must determine whether that defendant can be charged with multiple counts for possessing multiple images of child pornography or, rather, whether the defendant should be charged with only one count for a single act of possession of multiple images of child pornography. Presented with this question, the Courts of Appeal, First and Third Circuits, have reached different conclusions.

Conflicting Decisions

In State v. Kujawa, the First Circuit Court of Appeal recently reviewed the |7imposition of concurrent ten-year sentences for each of fifteen counts of possession of pornography involving juveniles to which a defendant pleaded guilty. 05-0470, p. 3 (La.App. 1 Cir. 2/22/06), 929 So.2d 99, 102, writ denied, 06-0669 (La.10/6/06), 938 So.2d 65. In Kujawa, the defendant had been arrested after a police search of his residence yielded, among other things, “hundreds of pages of printed text and pictures.” Id., p. 5, at 103. An assistant professor of pediatrics inspected this material and found that sixty-two of the pages contained pornographic pictures of children. Id. The defendant was then charged with a separate count of intentional possession of pornography involving juveniles under La. R.S. 14:81.1(A)(3) for each of the sixty-two pages, and eventually pleaded guilty to a lesser charge of fifteen separate counts. Id., p. 2, at 101. After being sentenced on each of these counts, the defendant’s Motion to Amend Sentence was granted and a resentencing hearing was held. Id., p. 3, at 102. On the date of that hearing, the defendant filed a motion to quash all but one of the charged counts, arguing that since all the pictures were seized on the same date and at the same location, he should have been charged on only one count of possession of pornography involving juveniles and that multiple charges for a single offense constituted double jeopardy. Id. This motion to quash was denied and, after being resentenced, the defendant appealed.

The Kujawa court began its analysis of whether multiple counts can be charged against a defendant under La. R.S. 14:81.1(A)(3) by referencing the statute’s language. Particularly, the First Circuit looked to the use of the plural form within La. R.S. 14:81(A)(3) (prohibiting “[t]he intentional possession ... of any photograph, film, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen” (emphasis added)) and whether this suggested a legislative intent “to prohibit a course of conduct, e.g., the |spossession of pictures, be it fifteen or fifty, rather than to authorize the multiple charging of a defendant for each separate and distinct picture possessed.” Id., p. 8, at 105. The First Circuit analyzed various jurisdictional approaches to this and related questions in order to frame its opinion. Beginning with State v. Freeman, 411 So.2d 1068 (La.1982), the First Circuit noted that this Court, in reviewing the intent evidenced within the language of a statute that prohibited the hunting of “deer” at certain times, has found “that if the legislative aim had been to make the taking of each individual deer an offense, it would have clearly expressed that intent, and to construe the statutory provisions otherwise would permit prosecutors to create multiple offenses without a legislative grant of authority.” Kujawa, 05-0470, p. 9, 929 So.2d at 105 (quoting Freeman, 411 So.2d at 1072).

The First Circuit went on to review other approaches to multiple charging under statutes prohibiting child pornography or other similar offenses and found “no clear consensus” on the issue. Id., p. 9-17, at 106-110. Specifically, the Kujawa court noted two cases which disallowed charging several counts under a single statute without clear language allowing such an approach. In Bell v. United States, the United States Supreme Court held that “if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses. ...” 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed. 905 (1955) (reducing two counts of transporting women in interstate commerce for the purpose of prostitution or debauchery, one count for each of two women, to a single count). Similarly, in United States v. Reedy, the United States Fifth Circuit held that the federal statute under which defendants were charged with forty-three counts of transporting child pornography in interstate commerce was ambiguously worded and, thus, the district court had erred in allowing the defendants to be prosecuted on each 1.^individual image entered into evidence. 304 F.3d 358, 367-68 (5th Cir.2002).

On the other hand, several other cases analyzed by the First Circuit in Kujawa allowed multiple counts to be charged under child pornography statutes. United States v. Esch allowed sixteen separate counts of sexual exploitation of children to be charged against defendants since the applicable statute proscribed each “use of a minor to engage in sexually explicit conduct for the purpose of creating a visual depiction of such conduct.” 832 F.2d 531 (10th Cir.1987) (distinguishing its holding from that in United States v. Meyer, 602 F.Supp. 1480 (S.D.Cal.1985), since the Esch defendants’ actions were not simultaneous). In Vineyard v. Texas, the Texas Court of Criminal Appeals found that the statute under which a defendant had been convicted evidenced a legislative intent that each item of child pornography possessed could be charged separately since the legislature had used the singular term “film image” and since each child depicted was individually harmed. 958 S.W.2d 834, 838 (Tex.Crim.App.1998). The Nebraska Supreme Court’s opinion in State v. Mather upheld a defendant’s conviction on eighteen counts of generating any visual depiction of sexually explicit conduct involving a child because “[t]he singular form of ‘photographic representation’ covered under the [applicable] statute réad in conjunction with the term ‘any’ indicate[ed] that the Legislature intended prosecution for each differing photographic representation.”' 264 Neb. 182, 646 N.W.2d 605, 610-11 (2002). In State v. Multaler, the Supreme Court of Wisconsin upheld twenty-eight child pornography convictions under Wisconsin’s applicable statute after finding that “[t]he singular formulation of the items covered under the[ ] statute modified by the term ‘any’ [was] evidence that the legislature intended prosecution for each photograph or pictorial reproduction.” 2002 WI 35, ¶ 64, 252 Wis.2d 54, ¶ 64, 643 N.W.2d 437, ¶ 64. A later Wisconsin Appellate decision held that eighteen charges |inof possession of child pornography for images found on a “zip” disk in the defendant’s computer were not multiplicitous since each image on the disk represented a new “volitional departure” for purposes of the applicable statute. State v. Schaefer, 2003 WI App 164, ¶ 50, 266 Wis.2d 719, ¶ 50, 668 N.W.2d 760, ¶ 50, review denied, 2003 WI 140, 266 Wis.2d 61, 671 N.W.2d 848. Commonwealth v. Davidson upheld twenty-eight separate convictions for the possession of child pornography since “[e]ach photograph of each child victimized that child and subjected him or her to precisely the type of harm the [applicable] statute seeks to prevent.” 2004 Pa.Super. 396, 860 A.2d 575, 583 (2004). Finally, in State v. Howell, a plural listing of materials prohibited under a child pornography statute was deemed to be “merely a matter of style.” 169 N.C.App. 58, 609 S.E.2d 417, 421 (2005). Citing to the Supreme Courts of Utah and South Dakota — states whose respective child pornography statutes also list prohibited materials in the plural — Howell held that North Carolina’s legislature intended that the defendant presently before that court “could be charged and convicted on multiple counts for the [forty-three] child pornography images on his computer hard drive.” Id.

From this jurisdictional review, the First Circuit determined in Kujawa that the Louisiana legislature’s use of the plural form in its list of contraband items within La. R.S. 14:81.1(A)(3) did not prevent a defendant from being convicted on multiple counts under the statute. 05-0470, p. 17 (La.App. 1 Cir. 2/22/06), 929 So.2d 99, 110, writ denied, 06-0669 (La.10/6/06), 938 So.2d 65. Considering La. R.S. 14:81.1 as a whole, with the statute’s separate provisions “in their context to each other[,]” the First Circuit found “that the legislative intent was to proscribe possession of any single image [and that t]he use of the plural form was clearly a matter of grammatical style and not suggestive of an intent to establish a unit of prosecution based upon a Inbroad course of conduct involving multiple contraband images.” Id., p. 17, at 110-11 (citing La. R.S. 1:3,1:7 & 14:3) (emphasis added). The First Circuit further found “that the use of the article ‘any’ to modify the proscribed images evidence[d] a clear legislative intent that each such image constitutes a basis for a unit of prosecution.” Id., p. 18, at 111 (emphasis added). Accordingly, the First Circuit held that, since this interpretation “best accord[ed] with the unequivocal legislative intent to effectively suppress the particular evil addressed by the statute[,]” fifteen separate counts for fifteen separate images was acceptable, and the trial court did not err in convicting the defendant on each of the fifteen counts. Id.

In the matter presently before us, State v. Fussell, the Third Circuit also began its interpretation of La. R.S. 14:81.1(A)(3) with an analysis of the use of the plural form within the provision’s language and whether this suggested a legislative intent to prohibit a course of conduct “rather than to authorize the multiple charging of a defendant for each separate and distinct picture possessed.” 06-324, p. 13 (La.App. |193 Cir. 9/27/06), 941 So.2d 109, 120-21. Allowing that “[t]he mere fact that words are in the plural ... is not dispositive of legislative intent[,]” the Third Circuit analyzed the language within La. R.S. 14:81.1(A)(3) by revisiting the various jurisdictional approaches that the First Circuit had addressed in its Kujawa opinion. Id., pp. 13-17, at 121-24. While the Third Circuit was “respectful of the majority’s opinion in Kujawa, ...” its reading of these cases left it unable to resolve what it deemed “ambiguous language in La. R.S. 14:81.1.” Id., p. 17, at 124. Citing Judge Downing’s Kujawa dissent, the Third Circuit noted:

It is not clear from a plain reading of La. R.S. 14:81.1 what constitutes an allowable unit of prosecution. While it is not unreasonable to interpret the plural form of the prohibited items in La. R.S. 14:81.1(A)(3) as suggestive of permitting only one count regardless of the number of pictures possessed, such an interpretation is in no way definitive, or even necessarily preferred. Indeed, a rational argument could be made for either of the conflicting constructions.

State v. Kujawa, 05-0470, p. 1 (La.App. 1 Cir. 2/22/06), 929 So.2d 99, 114, writ denied, 06-0669 (La.10/6/06), 938 So.2d 65 (Downing, J., dissenting) (footnote omitted), quoted in Fussell, 06-324, p. 17, 941 So.2d at 124.

Not sufficiently persuaded by the First Circuit’s analysis of the cases it reviewed in its Kujawa opinion, the Third Circuit in this matter determined that, above all else, the use of the plural form within La. R.S. 14:81.1(A)(3) rendered the statute “ambiguous as to what constitutes an allowable unit of prosecution.” Fussell, 06-324, p. 18, 941 So.2d at 125. Noting that “[i]t is well established that criminal statutes are to be strictly construed and, in the absence of an express legislative intent, any doubt or ambiguity should be resolved in favor of lenity and not so as to multiply the penalty imposed[,]” State v. Freeman, 411 So.2d 1068, 1072 (La.1982), the Third Circuit resolved this perceived ambiguity in favor of lenity. Fussell, 06-324, p. 18, 941 So.2d at 125. As a result, the Third Circuit held that Defendant’s multiple | ^-¡convictions for possession of pornography involving juveniles “should be reduced to a single conviction and the case remanded for resentenc-ing as to that conviction.” Id.

Statutory Construction

To resolve the split between the decisions rendered by the First and Third Circuit Courts of Appeal as discussed above and determine what constitutes a count for the purpose of charging a defendant for the intentional possession of multiple items of pornography involving juveniles under La. R.S. 14:81.1(A)(3), we must be mindful of the fact that “the paramount consideration in statutory interpretation is ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law.” State v. Johnson, 03-2993, p. 12 (La.10/19/04), 884 So.2d 568, 575; see also State v. Dick, 06-2223, p. 9 (La.1/26/07), 951 So.2d 124, 130. Further, “it is a well-recognized and long-established rule of statutory construction that a statute should be interpreted as a whole to effect the legislative intent and should be construed in such way as to reconcile, if possible, apparent inconsistencies or ambiguities so that each part is given effect.” State ex rel. A.M., 98-2752, p. 2 (La.7/2/99), 739 So.2d 188, 190 (emphasis added); see also State v. Cazes, 262 La. 202, 263 So.2d 8, 12 (1972).

As this Court has often noted, “the starting point in the interpretation of any statute is the language of the statute itself.” Johnson, 03-2993, p. 11, 884 So.2d at 575; see also Theriot v. Midland Risk Ins. Co., 95-2895, p. 3 (La.5/20/97), 694 So.2d 184, 186. In the realm of criminal statutory interpretation particularly, “provisions are to be given a genuine construction, according to the fair import of [their] words.” State v. Kennedy, 00-1554, p. 4 n. 3 (La.4/3/01), 803 So.2d 916, 928 n. 3 (citing La. R.S. 14:3); see also State ex rel. Robinson v. Blackburn, 367 So.2d 360, 363 (La.1979) (stating that “(1) [a]ll criminal statutes are construed strictly, and (2) the words | uof a statute must be read in their every day meaning”). If the statute is clear and unambiguous, then it is to be applied as written. State v. Barbier, 98-2923, p. 3 (La.9/8/99), 743 So.2d 1236, 1238.

In this case, we acknowledge that La. R.S. 14:81.1(A)(3), when read alone rather than in its full statutory context, is not a model of statutory clarity. Read in isolation, it is conceivable that one analyzing the language of this particular statutory provision could determine that La. R.S. 14:81.1(A)(3) is susceptible to more than one meaning. As such, by focusing on the legislature’s use of the plural form for the provision’s list of contraband items, La. R.S. 14:81.1(A)(3) could, as the Third Circuit posited in the instant matter, permit only one count, regardless of the number of pornographic images possessed. Conversely, a reading focused on the word “any,” similar to that of the First Circuit in Kujawa, could lead a reader to believe that the provision is aimed at prohibiting the' intentional possession of every single image of child pornography and that the legislature’s use of the plural form for the list of contraband items was merely a matter of grammatical style.

When the language of a criminal statute is susceptible to more than one meaning, the statute “should be so interpreted as to be in harmony with, preserve, and effectuate the manifest intent of the legislature, and an interpretation should be avoided which would operate to defeat the purpose and object of the statute.” State v. Williams, 03-3514, p. 2 (La.12/13/04), 893 So.2d 7, 21; see also State v. Brown, 03-2788, p. 6 (La.7/6/04), 879 So.2d 1276, 1280, reh’g denied, 9/3/04; State v. Broussard, 213 La. 338, 34 So.2d 883, 884 (1948). In targeting their analyses so exclusively on the language of La. R.S. 14:81.1(A)(3), however, the courts of appeal below have focused too narrowly on this provision specifically and have done so at the expense of its full statutory context. As we noted above, “it is a well-recognized and long-_Jestablished15 rule of statutory construction that a statute should be interpreted as a whole to effect the legislative intent and should be construed in such way as to reconcile, if possible, apparent inconsistencies or ambiguities so that each part is given effect.” State ex rel. A.M., 98-2752, p. 2 (La.7/2/99), 739 So.2d 188, 190 (emphasis added): Accordingly, we now look to the language of La. R.S. 14:81.1 in its entirety to guide our interpretation of the proper application of La. R.S. 14:81.1(A)(3).

La. R.S. 14:81.1, titled “Pornography involving juveniles,” appears in Part V, Sub-part A(l) of the Louisiana Criminal Code as one of several “Sexual Offenses Affecting-Minors,” (emphasis added), and includes seven subsections: (A) through (G). Subsection (A) leads the statute with a list of proscribed offenses. See infra. In subsection (B), several definitions that apply within La. 14:81.1 are provided. See supra, note 5. Subsection (C) states that “[possession of three or more of the same photographs, films, videotapes, or other visual reproductions shall be prima facie evidence of intent to sell or distribute.” Subsection (D) provides that “[l]aek of knowledge of the juvenile’s age shall not be a defense.” In subsection (E), fines and terms of imprisonment for offenders are listed, as well as provisions for post-imprisonment offender monitoring. Subsection (F) dictates that “[a]ny evidence of pornography involving a child under the age of seventeen shall be contraband [and that s]uch contraband shall be seized in accordance with law and shall be disposed of in accordance with R.S. 46:1845.” Lastly, subsection (G) sets forth factors for the trier of fact to determine “whether or not the person displayed or depicted in any photograph, videotape, film, or other video reproduction introduced in evidence was |1fiunder the age of seventeen years at the time of filming or recording....”

As previously mentioned, four particular offenses relating to pornography involving juveniles are listed in La. R.S. 14:81.1(A):

(1) The photographing, videotaping, filming, or otherwise reproducing visually of any sexual performance involving a child under the age of seventeen.
(2) The solicitation, promotion, or coercion of any child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving a child under the age of seventeen.
(3) The intentional possession, sale, distribution, or possession with intent to sell or distribute of any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.
(4) The consent of a parent, legal guardian, or custodian of a child under the age of seventeen for the purpose of photographing, videotaping, filming, or otherwise reproducing visually any sexual performance involving the child.

Our reading of the language of La. R.S. 14:81.1(A) reveals that each of its proscribed offenses is tethered to the visual reproduction of any sexual performance involving a child under the age of seventeen: (1) the “photographing, videotaping, filming, or otherwise reproducing visually” of any sexual performance involving a child; (2) the “solicitation, promotion, or coercion” of a child for the purpose of visually reproducing a sexual performance involving that child; (3) the “intentional possession, sale, distribution, or possession with intent to sell or distribute” any visual reproductions of a sexual performance involving a child; and (4) the “consent of a parent, legal guardian, or custodian” of a child for the purpose of visually reproducing a sexual performance involving that child. La. R.S. 14:81.1(A)(l)-(4). Indeed, without a sexual performance involving a child, none of these offenses could |17be committed. Inversely, each of these offenses is committed if just one child is involved in one single sexual performance. Thus, read in this context, the language of La. R.S. 14:81.1(A) indicates that each of its prohibitions — La. R.S. 14:81.1(A)(3) included — revolves around a legislative goal to protect any single child from being sexually exploited through the visual reproduction of any single sexual performance involving that child.

Other provisions within La. R.S. 14:81.1 further demonstrate that the legislature was motivated by a “protectionist” goal when drafting its child pornography prohibitions. First, as with Louisiana’s other criminal prohibitions against sexual offenses affecting minors, La. R.S. 14:81.1 allows no “lack of knowledge” defense regarding the age of the child appearing in the pornography. La. R.S. 14:81.1(D). This Court has previously held that the legislature can dispense with knowledge requirements as to the age of a juvenile in certain crimes because juveniles have been “historically recognized as a special class of persons in need of protection.... ” State v. Granier, 99-3511, p. 4 (La.7/6/00), 765 So.2d 998, 1000 (holding that subsection B of La. R.S. 14:80, carnal knowledge of a juvenile, is constitutional). The legislature’s prohibition of a “lack of knowledge” defense in La. 14:81.1(D) evidences such a recognition in drafting La. R.S. 14:81.1, since “[a]t the heart of these types of statutes is the concern that juveniles should not be exploited for sexual purposes regardless of their ‘consent.’ ” Granier, 99-3511, p. 6, 765 So.2d at 1001.

Additionally, in an effort to prevent any further victimization of a child that has been forced or coerced into sexually performing (e.g., the knowledge that the abuse | isdepicted in the child pornography might be seen by others for years to come), La. R.S. 14:81.1 deems any evidence of the pornographic product of that performance contraband and provides for its seizure and prompt disposal. See La. R.S. 14:81.1(F). Moreover, La. R.S. 14:81.1(G) is singularly focused on the child victim when it provides factors for the trier of fact to determine “whether or not the person displayed or depicted in any photograph, videotape, film, or other video reproduction introduced in evidence was under the age of seventeen years at the time of filming or recording.... ” (Emphasis added). The language of this statutory provision necessitates this age determination for each person depicted in any of the listed reproductions, regardless of the number of persons actually depicted, again indicating that La. R.S. 14:81.1 is focused on protecting any single child from being victimized by the pornography crimes proscribed within this statute.

Finally, La. R.S. 14:81.1 provides no distinctions between types of offenders: whether a producer or a consumer of child pornography, each offender is to be punished equally under La. R.S. 14:81.1(E)(1) with fines of up to ten thousand dollars and “imprisonment at hard labor for not less than two years or more than ten years, without benefit of parole, probation, or suspension of sentence.” The focus on protecting each individual child within this equal punishment approach is further evidenced by the legislature’s intention to provide harsher sentences for those that prey upon the youngest, and thus most vulnerable, children: La. R.S. 14:81.1(E)(2) provides that if the child appearing in the pornography is “under the age of thirteen years when the offender is seventeen years of age or older,” the offender faces “imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment [with a]t least twenty-five years of the sentence imposed [to] be served without benefit of parole, probation, or suspension of sentence.” Accordingly, an hflOffender that is seventeen years of age or older that is found to be in possession of child pornography depicting a sexual performance that involves, for instance, both a twelve-year-old child and a sixteen-year-old child must be subject to different punishments for each child in that sexual performance; the language of the statute does not allow the same sentence to be imposed for both children. Lastly, the statute also seeks to protect children from further victimization by dealing with the dangers of recidivism: if and when an offender is released, that offender “shall be monitored ... through the use of electronic monitoring equipment for the remainder of his natural life.” La. R.S. 14:81.1(E)(3).

Read in this full statutory context, we find that the legislature enumerated punishable offenses related to pornography involving juveniles within La. R.S. 14:81.1(A), and La. R.S. 14:81.1(A)(3) specifically, with the goal of preventing any single child from being sexually exploited through the visual reproduction of any single sexual performance involving that child. Cf. State v. Granier, 99-3511, p. 6 (La.7/6/00), 765 So.2d 998, 1001 (stating that “[a]t the heart of these types of statutes is the concern that juveniles should not be exploited for sexual purposes ... ”). Accordingly, the lower courts have focused their analyses too specifically on the use of the plural form in the list of contraband items in La. R.S. 14:81.1(A)(3). Any ambiguity that this use creates is clarified when La. R.S. 14:81.1 is interpreted in its entirety “in such way as to reconcile ... apparent inconsistencies or ambiguities so that each part [of the statute] is given effect.” State ex rel. AM., 98-2752, p, 2 (La.7/2/99), 739 So.2d 188, 190. Through its enactment of La. R.S. 14:81.1, the legislature intended to prevent any child from ever being victimized by punishing equally any of four types of offenders for each action that contributes to .that child’s sexual exploitation, including a defendant who intentionally possesses |?,nchild pornography. Simply stated, preventing any child from being sexually victimized is the end to be achieved, and punishing both producers and consumers of child pornography equally is the legislature’s chosen means by which to achieve this end. Thus, in the instant matter, we hold that the language of La. R.S. 14:81.1(A)(3) evidences a legislative intent to allow a separate conviction on a separate count for each child, in each sexual performance in which that child is victimized, that is captured in any photographs, films, videotapes, or other visual reproductions that a defendant intentionally possesses.

The legislative history behind La. R.S. 14:81.1, as well as the historical context in which this legislation was proposed, buttresses our reading and application of this statute’s language. See Exxon Pipeline Co. v. Louisiana Public Serv. Comm’n, 98-1737, p. 8 (La.3/2/99), 728 So.2d 855, 860 (stating that “[i]n many cases, the legislative history of an act and contemporaneous circumstances may be helpful guides in ascertaining legislative intent”). Historically speaking, La. R.S. 14:81.1 was unanimously passed into law by Acts 1977, No. 97, § 1 in 1977, a time in which the commercial exploitation of child pornography had exploded and a national movement directed at curbing that market had emerged. See Sexual Exploitation of Children, Hearings Before the Subcommittee on Crime of the House Committee of the Judiciary and the Subcommittee on Select Education of the House Committee of Education and Labor, 95th Cong., 1st Sess. 16 (1977); The Supreme Court, 1981 Term — Child Pornography and Unprotected Speech, 96 Harv. L.Rev. 141, 141 n. 2 (1981) (stating that “[i]n 1977, press coverage of the emergence of a nationwide, multimillion dollar child pornography market became a catalyst for state and federal legislative action”). In an effort to address this expanding problem and to prevent children from being harmed by these materials, the federal government passed the | ⅞1 Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, 92 Stat. 7 (1978) (making it a crime for a person to distribute for sale certain materials depicting minors engaging in sexually explicit conduct), as many states also adopted their own such child pornography laws. See, e.g., Ariz.Rev.Stat. Ann. § 13-538 (1977); Fla. Stat. § 847.014 (1977); Ill. Comp. Stat. Ch. 38, § 11-20a (1978); Minn.Stat. § 617.246 (1977); N.H.Rev.Stat. Ann. § 650.2 (1977). Indeed, La. R.S. 14:81.1 was enacted at a time in which there had emerged a strong national consensus that child pornography, in and of itself, was a particular type of child sexual abuse. See, e.g., New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). This consensus was subsequently recognized by the United States Supreme Court when it refused to extend First Amendment free speech protection to child pornography and upheld a state prohibition on such materials that did not first require a finding that those materials were “obscene.” Id. In Ferber, the Court found that, in some ways, child pornography was worse than direct acts of sexual abuse because “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” Id.

Following Ferber, the Louisiana Legislature promptly proposed amending La. R.S. 14:81.1 to separate the statute from Louisiana’s obscenity laws. See S.B. 116, 1983 Reg. Sess. (La.1983), as enacted in Acts 1986, No. 655, § 1. Noting that “[t]he new Supreme Court ruling eliminated the confinements relating to obscenity definitions contained in previous legislation concerning child pornography[,]” the committee meeting minutes that accompanied this amendment suggest a legislative intent to define the offenses under La. R.S. 14:81.1 as broadly as possible within constitutional constraints. Louisiana State Senate Committee on Judiciary B, Minutes of Meeting, April 26, 1983, p. 2 (emphasis added). This legislative intent to define | ¡^proscribed conduct broadly within La. R.S. 14:81.1 was further evidenced when the depictions prohibited under the law were expanded from those showing “any act of sexual conduct” to those showing “any act of sexual conduct or the obscene, lewd, or lascivious exhibition of the genitals or pubic area.” See H.B. 720, 1981 Reg. Sess. (La.1981), as enacted in Acts 1981, No. 502, § 1. The committee minutes for this amendment further indicate that its purpose was to “tighten a loophole in the law which allow[ed] juveniles to be photographed in an obscene manner as long as no sexual conduct is included.” Louisiana State Senate Committee on Judiciary C, Minutes of Meeting, July 7, 1981, p. 1 (emphasis added). Indeed, in holding La. R.S. 14:81.1 constitutional, this Court has reviewed the language and history of this statute previously and found that “[t]he apparent legislative intent ... was to regulate child pornography to the fullest extent possible!).]” State v. Cinel, 94-0942, p. 12 (La.11/30/94); 646 So.2d 309, 317.

As previously noted, “the paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law.” State ex rel. A.M., 98-2752, p. 2 (La.7/2/99), 739 So.2d 188, 190. Accordingly, the above legislative actions, taken during a time of intense national concern for preventing the victimization of children in child pornography, further support our reading of La. R.S. 14:81.1 as a statute that aims to criminalize four categories of offenses for the purpose of preventing any single child from being sexually exploited through the visual reproduction of any single sexual performance involving that child. In this regard, we find that the Third Circuit erred when it failed lato analyze these offenses, listed in La. R.S. 14:81.1(A), in their full statutory context, focusing instead too narrowly on La. R.S. 14:81.1(A)(3) and stating that:

The central object of the statute does not relate to the terms “a child” or “any child,” but rather to the possession of items containing child pornography. The proper focus, thus, is on the legislative intent in designating prohibited items using the plural form. The unit of prosecution refers to the offense proscribed by the statute, not the class of persons the statute protects.

State v. Fussell, 06-324, p. 15 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, 123.

We are cognizant that the count or counts charged against a defendant (referred to above by the Third Circuit as the “unit of prosecution”) must indeed connect to the offense proscribed by the statute. The offenses that La. R.S. 14:81.1(A) proscribes, however, each revolve around the sexual exploitation of a child through, inter alia, preparing for, creating, or possessing any visual reproduction of a sexual performance involving that child. The language of the statute reveals that, to achieve its goal of preventing any single child from being sexually exploited through the visual reproduction of any single sexual performance involving that child, our legislature crafted a law that punishes all pornographers equally. Regardless of the stage at which the pornographer participates in the sexual exploitation of a child, the person that coerces a child into performing sexually for a video or other visual reproduction, the person that actively captures that visual reproduction, and the person that later possesses that visual reproduction will all face the same sentence (a sentence that will be even harsher should the child victim be under thirteen years of age). See La. R.S. 14:81(A) & (E). To treat the intentional possession of child pornography, as proscribed by La. R.S. 14:81.1(A)(3), differently from the other offenses listed within La. R,S. 14:81.1(A) and allow instead a “course of conduct” punishment for the possession of multiple images of child pornography would be to allow a defendant l^to be punished only once, regardless of how many children have been exploited within the contraband material possessed by a defendant, and regardless of how many times each child has been exploited. In our view, such an approach is not consistent with the language and purpose of La. R.S. 14:81.1, read in its entirety.

Thus, while the Third Circuit was correct in pointing out that any doubt or ambiguity within a criminal statute should be resolved in favor of lenity, Fussell, 06-324, p. 18, 941 So.2d at 125 (citing State v. Freeman, 411 So.2d 1068, 1072 (La.1982)), in this situation, we find no ambiguity within La. R.S. 14:81.1 that demands such a resolution. Cf. 1 Wharton’s Criminal Law, 74-76 (Charles E. Torcía, ed., 15th ed.1993) (stating that “it is for the court to carry out the apparent intent of the legislature, and, if the meaning of a statute is clear, the legislative intent as thus manifested is controlling even though the statute might admit of a narrower interpretation” (footnotes omitted)). With the above legislative context as further support, the language of La. R.S. 14:81.1(A), when read in its entirety, clearly indicates that an individual offense is committed each time one visually reproduces any sexual performance involving a child; coerces or solicits a child into any visually reproduced sexual performance; consents as a parent, guardian, or custodian to a child’s visually reproduced sexual performance; or, for purposes of the instant inquiry, intentionally possesses any single visual reproduction of a child’s sex- uál performance. Thus, a photographer can be charged on a separate count for each performance he/she photographs, as well as each child he/she photographs in that performance, regardless of the particular number of images eventually produced. One filming or videotaping can also be charged on a separate count for each performance he/she captures on film or tape, as well as each child he/she films or videotapes in that performance, regardless of the number of films or videos eventually produced. I^And, as applicable here, under La. R.S. 14:81.1(A)(3), we conclude that one who intentionally possesses child pornography can be charged on a separate count, and sentenced separately for each count upon which he or she is convicted, for each child in each sexual performance captured within photographs, films, videotapes, and/or other visual reproductions that comprise the defendant’s collection of child pornography.

Since Defendant in the instant matter possessed at least sixteen computer-printed photographs of a different child in a different sexual performance, we hold that the Third Circuit Court of Appeal improperly reduced Defendant’s sixteen convictions for the intentional possession of pornography involving juveniles to a single conviction. We thus reverse that reduction and reinstate the trial court’s sixteen convictions.

RESTITUTION

We agree with the Third Circuit Court of Appeal that, due to a nonspecific restitution order, the sentences imposed upon Defendant by the trial court were indeterminate and, thus, invalid. See La C.Cr.P. art. 879 (stating that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence”); La. C.Cr.P. art. 883.2. Accordingly, this case must now be remanded for resentencing on all convicted counts.

DECREE

|;,fiBased on the foregoing, we now determine the following: (1) The Court of Appeal’s reduction of Defendant’s sixteen convictions under La. R.S. 14:81.1(A)(3) for the intentional possession of pornography involving juveniles to a single conviction is reversed and the trial court’s sixteen separate convictions are reinstated; and (2) the case is remanded to the trial court for resentencing on all seventeen convictions.

REVERSED IN PART AND REINSTATED, AND REMANDED FOR RE-SENTENCING.

CALOGERO, C.J., and TRAYLOR, J., concur.

      . La. R.S. 14:81.1(A)(3) proscribes "[t]he intentional possession, sale, distribution, or possession with intent to sell or distribute any photographs, films, videotapes, or other visual reproductions of any sexual performance involving a child under the age of seventeen.”

      . Each of these nineteen pages was later introduced at trial as a separate State exhibit.

      . Defendant raised numerous claims in his three pro se briefs, many of which the Third Circuit determined were duplicitous, and some of which the Third Circuit determined were extremely difficult to follow. State v. Fussell, 06-324, p. 25 (La.App. 3 Cir. 9/27/06), 941 So.2d 109, 129. Though these claims were not designated by Defendant as assignments of error, the Third Circuit treated them as such, "combining related claims into single assignments.” Id.

      . This Court granted the State’s writ application to determine the proper interpretation and application of La. R.S. 14:81.1(A)(3). Accordingly, the affirmed aggravated rape conviction will not be addressed in this opinion.

      .La. R.S. 14:81.1(B)(1) defines a "sexual performance" as “any performance or part thereof that includes sexual conduct involving a child under the age of seventeen.” “Performance” is defined in La. R.S. 14:81.1(B)(2) as "any play, motion picture, photograph, dance, or other visual representation.” Lastly, La. R.S. 14:81.1(B)(3) defines "sexual conduct” as "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” In its opinion, the Third Circuit in this matter noted how each of the sixteen convictions was supported by a corresponding State exhibit (see supra, note 2 and accompanying text):
      S-5, S-6, S-7, S-8, S-9, S-10, S-ll, S-12, S-13, S-14, and S-15 all contain[ed] at least one photograph of an act of either oral, vaginal or anal sexual intercourse. S-16 contained] at least one photograph of sadomasochistic abuse and S-17 show[ed] an act of sexual bestiality. S-18 show[ed] a young couple involved in an act of sexual intercourse, either actual or simulated!,] ... and S-20 and S-21 clearly contained] photographs meeting the definition of "lewd exhibition of the genitals"....

        State v. Fussell, 06-324, pp. 8-11, 941 So.2d at 117-19.

      . For a discussion regarding the term "unit of prosecution,” see infra, "Unit of Prosecution” section, page 1227.

      . Restitution as part of a principal sentence is imposed pursuant to La.C.Cr.P. art. 883.2, which provides:
      In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.
      The Third Circuit has previously held that a failure to state the amount of restitution and to specify on which count or counts the restitution is ordered "renders a sentence indeterminate and thus illegal, necessitating that the sentence be vacated and the case remanded for resentencing.” State v. Joseph, 05-186, p. 3 (La.App. 3 Cir. 11/2/05), 916 So.2d 378, 380.

      . To support its conclusion that La. R.S. 14:81.1(A)(3) sought to prohibit the possession of any single image of child pornography, the First Circuit looked to three other particular provisions within La. R.S. 14:81.1, as they were written at the time of the defendant’s arrest, and noted the following:
      [Paragraph C of La. R.S. 14:81.1 provides:
      Possession of three or more of the same photographs, films, videotapes, or other visual reproductions shall be prima facie evidence of intent to sell or distribute.
      It can hardly be considered reasonable in this context to interpret the phrase “the same photographs, films, videotapes, or other visual representations” as referring to identical sets of multiple images, as opposed to the same image, in order for the presumption to apply. This conclusion is reinforced by consideration of the specific language of paragraph F:

        Each photograph, film, videotape, or other reproduction of any sexual conduct involving a child under the age of seventeen shall be contraband and shall be seized and disposed of in accordance with law. (Emphasis supplied.)
      Further, the use of the singular form of the contraband images in La. R.S. 14:81.1(G), although not as persuasive, supports this conclusion.

        State v. Kujawa, 05-0470, p. 17-18, 929 So.2d at 111 (footnote omitted).

      . Other sexual offenses affecting minors include felony and misdemeanor carnal knowledge of a juvenile, La. R.S. 14:81 & 14:80.1, indecent behavior with juveniles, La. R.S. 14:81, molestation of a juvenile, La. R.S. 14:81.2, and computer-aided solicitation for sexual purposes. La. R.S. 14:81.3.

      . Lack of knowledge of a juvenile’s age is not a defense for any of the offenses listed in Part V, Subpart A(l) of Louisiana's Criminal Code. See supra, note 9.

      . La. R.S. 14:81.1 was subsequently restructured to prohibit depictions of "any sexual performance,” which was separately defined as containing “sexual conduct.” See La. R.S. 14:81.1(A) & (B)(l)-(3). In its restructuring, however, the legislature retained, and further expanded, this broader definition of prohibited depictions, including in its list of "sexual conduct” any "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.” La. R.S. 14:81.1(B)(3).

      . See supra, notes 2 & 5 and accompanying text.

      . La.C.Cr.P. art. 883.2 provides:
      In all cases in which the court finds an actual pecuniary loss to a victim, or in any ease where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose.