322 F.Supp. 4 (M.D.Fla. 1970), Civ. A. 70-322, Severson v. Duff

Docket Nº:Civ. A. 70-322
Citation:322 F.Supp. 4
Party Name:Severson v. Duff
Case Date:December 29, 1970
Court:United States District Courts, 11th Circuit, Middle District of Florida

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322 F.Supp. 4 (M.D.Fla. 1970)

Elizabeth A. SEVERSON, Petitioner,


Edwin H. DUFF, II, as Sheriff of Volusia County, Florida, Respondent.

Civ. A. No. 70-322-Civ-J.

United States District Court, M.D. Florida, Jacksonville Division.

Dec. 29, 1970

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Thomas A. Goldsmith, Daytona Beach, Fla., for petitioner.

Earl Faircloth, Atty. Gen., of Fla., Tallahassee, Ronald Sabo, Asst. Atty. Gen., for respondent.


WILLIAM A. McRAE, Jr., District Judge.

Petitioner has submitted to this Court a petition for writ of habeas corpus under 28 U.S.C. § 2254.

The petition alleges that the petitioner was convicted and adjudged guilty of disorderly conduct in violation of Florida Statutes, section 877.03 (1967), F.S.A., and was sentenced to 90 days incarceration by the Volusia County Circuit

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Court on March 30, 1970. Petitioner asserts that the statute is unconstitutional on its face for vagueness, in violation of the fifth and fourteenth amendments to the Constitution of the United States, and for overbreadth, in violation of the guarantees of the first and fourteenth amendments to the Constitution of the United States; we agree, and vacate, and expunge her sentence and conviction.

This Court, in its order of October 2, 1970, reported at 318 F.Supp. 17, found:

1. Petitioner has not deliberately by-passed state remedies.

2. Exhaustion of state remedies would be futile, and abstention is inappropriate.

3. This Court, acting with a single judge, has jurisdiction to pass on the constitutionality of the state statute under attack here; and

4. Respondent was ordered to show cause why habeas corpus relief should not be granted and why Florida Statutes, section 877.03, F.S.A., should not be held unconstitutional on its face or as applied. 1

The statute under attack, section 877.03, Florida Statutes, F.S.A., provides as follows:

Whoever commits such acts as are of a nature to corrupt the public morals, or outrage the sense of public decency, or affect the peace and quiet of persons who may witness them, or engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace of disorderly conduct, shall be guilty of a misdemeanor, and subject to punishment as provided by law.


Petitioner contends that the Florida disorderly conduct statute set out above is unconstitutionally vague on its face and as applied in her case. She was charged and convicted for 'use of profane, loud, or boisterous language so as to outrage the sense of public decency, and in such a manner as to constitute a breach of the peace.' No act apart from 'language' was alleged, and the warrant speaks solely in terms of the statute's test, 'outrage the sense of public decency.'

Because we find the statute unconstitutional on its face for vagueness and overbreadth, it is unnecessary to consider the application of the statute to her. See Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844, 845, 846 (1970).

In order to comport with fundamental concepts of fairness, a statute or a charge must be phrased in terms sufficiently definite so that men of common intelligence will not have to guess at its meaning and application. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). In Scott v. District Attorney, 309 F.Supp. 833, 836 (E.D.LA. 1970), it was stated:

Criminal statutes that do not clearly define the outlawed conduct may contravene the Fourteenth Amendment guarantee of due process by subjecting the accused to a penalty for behavior that he could not intelligently have known was forbidden. Such vagueness is unconstitutional not only because it fails to warn a person that his behavior may be criminal, but also because it compels enforcement officers, as well, to guess at what violates the law, thus either setting the stage for arbitrary police action or, if police and prosecutors evolve their own rational standards of enforcement, constituting an inappropriate delegation of criminal lawmaking authority.

In Baggett v. Bullitt, 377 U.S. 360, 373, 84 S.Ct. 1316, 1323, 12 L.Ed.2d 377 (1964),

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the Supreme Court observed in a different context:

It will not do to say that a prosecutor's sense of fairness and the Constitution would prevent a successful perjury prosecution for some of the activities seemingly embraced within the sweeping statutory definitions. * * * Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law.

It is necessary first to consider if Florida courts have, by case law, construed the statute involved herein so as to narrow the usual signification of its words.

The Florida courts have had several occasions in which convictions under disorderly conduct and breach of the peace ordinances have been upheld. In City of St. Petersburg v. Calbeck, 114 So.2d 316 (FlA. 2d D.C.A. 1959), with further opinion at 121 So.2d 814 (FlA. 2d D.C.A. 1960), the court upheld a disorderly conduct conviction for 'abusive and profane language' and reversed a circuit court determination that the ordinance was void for vagueness. The Calbeck court quoted with approval language from Florida Jurisprudence:

The term disorderly conduct has been construed as embracing all such acts and conduct as are of a nature to corrupt the public morals or to outrage...

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