Smith v. State

• Decision Date: 16 September 1970
• Docket Number: No. 38210,38210
• Citation: 239 So.2d 250
• Parties: Raymond SMITH et al., Appellants, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 250

239 So.2d 250

Raymond SMITH et al., Appellants, v. STATE of Florida, Appellee.

No. 38210.

Supreme Court of Florida.

Sept. 16, 1970.

Robert L. Koeppel, Public Defender, and Phillip A. Hubbart, Asst. Public Defender, for appellants.

Earl Faircloth, Atty. Gen., and J. Christian Meffert, Asst. Atty. Gen., for appellee.

ROBERTS, Justice.

This cause is before the court on a direct appeal from a judgment convicting the defendants-appellants of the offense of vagrancy 'by wandering and strolling around from place to place without any lawful purpose or object,' as denounced by § 856.02, Florida Statutes, F.S.A. The trial court upheld the statute as against an attack made in a motion to dismiss and again in a motion for a new trial filed by the defendants on the ground that the offense charged was so broad and vague in nature as to violate the due process clause of the federal and state constitutions. We have jurisdiction of the appeal under Section 4, Article V, of the Constitution, F.S.A. Milliken v. State, Fla.1961, 131 So.2d 889.

The attack here made upon the particular provision of the vagrancy statute alleged to have been violated by the appellants is substantially the same as that made in Johnson v. State, Fla.1967, 202 So.2d 852. In that case the court was unanimous in holding that the provision of the statute here in question was not susceptible to the charge of vagueness there made against it. In the well considered concurring opinion filed by Chief Justice Ervin it was stated that our statute

'* * * appears to be of the genre of vagrancy laws which have long been upheld as necessary regulations to deter vagabondage and prevent crimes and the imposition upon society of able bodies irresponsibles who of their own volition become burdens upon others and particularly on their families for support.'

It was held also that the statute meets the tests of certainty outlined in State ex rel. Lee v. Buchanan, Fla.1966, 191 So.2d 33; Carter v. State, Fla.1963, 155 So.2d 787; and Tracey v. State, Fla.1961, 130 So.2d 605. The decision in Johnson was reversed by the United States Supreme Court because of a lack of evidence to support the judgment of conviction, without reaching the question of the constitutionality of the statute. See Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838.

We have reconsidered our decision in the Johnson case in the light of the decisions of other courts cited by appellants as well as the decision of the United States District Court for the Southern District of Florida in Lazarus v. Faircloth, 301 F.Supp. 266 (June 9, 1969), declaring the entire vagrancy statute, Section 856.02, to be invalid. The Lazarus decision is now on direct appeal to the United States Supreme Court. We find nothing in these decisions to persuade us to recede from our previous conclusion respecting the validity of Section. 856.02.

Accordingly, the judgment appealed from should be and it is hereby

Affirmed.

ERVIN, C.J., and THORNAL, CARLTON and ADKINS, JJ., concur.

BOYD, J., dissents with opinion.

DREW, J., dissents and concurs with BOYD, J.

BOYD, Justice (dissenting):

I must dissent to the majority opinion. The statute in question was designed long ago to prevent idle and irresponsible persons from living on the income of those who earned their living by the sweat of their brows.

In our time a large portion of our...