Florida’s 5-Year Minimum Under 827.071(3) | Goldman Wetzel

Promoting a Sexual Performance by a Child in Florida

The five-year mandatory minimum and the statutory exception

Florida law now requires a five-year mandatory minimum prison sentence for certain convictions for promoting a sexual performance by a child. Under section 827.071(3), that minimum applies to a person who was 18 or older at the time of the offense, subject to the exception in subsection (7).

The exception requires four specific findings concerning the minor’s age, permission to create the performance, the age difference, and whether the accused promoted it to a third party. A dating relationship or the minor’s permission alone is not enough.

What counts as promoting a sexual performance by a child

A person violates section 827.071(3) by producing, directing, or promoting a performance that includes sexual conduct by a child while knowing its character and content. For this statute, a child is anyone younger than 18. A performance can involve a photograph or recording; the law is not limited to a live event.

The statutory definition of promoting is broad. It includes providing, sending, sharing, posting, and distributing material, as well as offering or agreeing to do so. Because of that definition, an allegation may involve electronic communications between individuals. Making money from the material is not a required element of this offense.

The current statute uses the term child sexual abuse material, often called child pornography in older statutes and online searches. A charge under subsection (3) must be evaluated under its own elements, rather than treated as interchangeable with a possession charge.

What the five-year mandatory minimum means

Promoting a sexual performance by a child is a second-degree felony, ordinarily punishable by up to 15 years in prison and a fine of up to $10,000. Subsection (3) sets a mandatory five-year minimum term, subject to its exception. Additional charges or sentencing enhancements can increase the potential punishment.

The adult-age requirement concerns the person’s age when the offense occurred. Turning 18 before an arrest or sentencing does not, by itself, trigger this particular mandatory minimum for conduct committed while younger than 18.

The five-year minimum and the subsection (7) exception took effect July 1, 2026. The date of the alleged conduct therefore matters when determining which version of the law applies.

The four findings required for the statutory exception

Under section 827.071(7), the court is not required to impose the mandatory minimum if it makes written findings establishing all four of the following conditions for the performance underlying the violation.

• The child was at least 14 when the performance was created. The relevant age is the minor’s age when the image was created. Becoming older before the material is discovered does not satisfy this requirement if the minor was younger than 14 when it was created.
• The performance was created with the depicted child’s permission. This requirement concerns permission to create the performance. It does not make the conduct lawful or establish permission to distribute the material.
• The offender was no more than four years older than the depicted child when the performance was created. The actual birth dates and creation date matter. Describing the parties by their whole-number ages may not establish the precise age difference.
• The offender did not promote the performance to any third party. If the offender sent, shared, posted, or otherwise promoted it to a third party, this requirement is not met. Third-party promotion can include sharing with just one other person, even without a sale or public posting.

All four requirements must be satisfied. Meeting the age requirements and obtaining permission to create the performance cannot overcome a failure to meet the third-party requirement.

What the exception allows

The exception gives the judge discretion to sentence a person without imposing the five-year mandatory minimum under subsection (3). It does not require a sentence of less than five years. The judge may still impose prison time, and must consider other sentencing requirements consistent with Florida’s Criminal Punishment Code.

Subsection (7) addresses sentencing. It does not dismiss the charge, establish innocence, or guarantee probation. It also does not itself remove any applicable sex offender registration requirements, which must be evaluated separately.

Why the evidence matters

Birth records, communications surrounding the creation of the material, file dates, and forensic evidence can affect whether the court can make the required findings. The defense also needs to examine whether the material meets the statutory definitions, whether the prosecution can prove the required knowledge and conduct, and whether the evidence was lawfully obtained.

Before resolving a case, the accused should understand whether the five-year minimum applies and whether the evidence supports the subsection (7) exception. Those questions can materially affect the available sentencing options.

Speak with Goldman Wetzel about your case

If you or a family member is facing an allegation of promoting a sexual performance by a child in Florida, contact Goldman Wetzel to discuss the charge, the potential penalties, and whether the statutory exception may apply.