¶1Appellant was charged in three separate informations with committing a lewd and lascivious act in the presence of a child under the age of sixteen, contrary to section 800.04(3), Florida Statutes (1987). Specifically, it was charged in each information that appellant presented to a child a photograph of his genitalia.
¶2Appellant filed a sworn motion to dismiss, arguing that the alleged conduct actually constitutes a violation of section 847.011, but not section 800.04(3). Appellant’s motion set forth the alleged facts upon which the information was based, stating that appellant threw or deposited the nude photographs from an automobile and that these photographs were then picked up by the named juveniles. These facts were not denied by the state’s response. The trial court denied the motion, and the appellant pled nolo contendere to all charges, specifically reserving the right to appeal the denial of the motion to dismiss.
¶3We find that the appellant’s conduct in the instant case does not constitute a violation of section 800.04(3), as appellant did not commit a lewd act in the presence of a child. We do not decide whether appellant’s conduct is violative of section 847.-011.
¶4REVERSED.