Gable v. Massey, 76-4191

• Decision Date: 16 January 1978
• Docket Number: No. 76-4191,76-4191
• Parties: James GABLE, Petitioner-Appellant, v. Raymond D. MASSEY, Superintendent, Union Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 459

566 F.2d 459

James GABLE, Petitioner-Appellant, v. Raymond D. MASSEY, Superintendent, Union Correctional

Institution, Respondent-Appellee.

No. 76-4191.

United States Court of Appeals, Fifth Circuit.

Jan. 16, 1978.

Franklyn Louderback, St. Petersburg, Fla. (Court-appointed), for petitioner-appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before THORNBERRY, GODBOLD and FAY, Circuit Judges.

FAY, Circuit Judge:

Petitioner, James Gable, has appealed the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He raises the following two points on appeal: (1) whether the charge that he "did handle, fondle or make an assault upon one Ollie Mae Foreman, a female under the age of 14 years, in a lewd, lascivious or indecent manner" under Florida Statute § 800.04 is unconstitutionally vague and overbroad and (2) whether he was deprived of his right to a speedy trial under the Sixth Amendment or due process under the Fifth and Fourteenth Amendments to the United States Constitution. We affirm the district court's decision.

On February 12, 1973, Gable was charged by the State of Florida, with violation of the first clause of Florida Statute § 800.04. ¹ Gable thereafter entered a plea of nolo contendere to the charge and after a presentence investigation was sentenced to a term of ten years in the state prison. Petitioner appealed the judgment and sentence to the Florida District Court of Appeal, Second District, and on February 13, 1974, that court remanded the cause back to the trial court for further compliance with the mandatory provisions of Florida Statute § 801.051. ² This statute provides that when The mandate of Florida's District Court of Appeal was filed with the trial court on March 5, 1974. On June 10, 1974, the appellant filed a pro se Motion for Discharge in the trial court. The motion was denied on June 12, 1974, and appellant was ordered returned to Polk County, Florida, for psychiatric evaluation pursuant to the appellate court's mandate. From March 5, 1974, until June 12, 1974, was a delay of 118 days. Thereafter, two psychiatrists submitted written reports pursuant to the trial court's order for mental examination. On August 29, 1974, appellant was again sentenced to a ten-year term.

a person has been convicted under Florida Statute § 800.04 the trial court shall appoint not less than two nor more than three psychiatrists to examine the defendant and shall not proceed under the provisions of the statute until each of those psychiatrists files a separate written report of the results of his examination. After complying with these requirements the trial judge may then sentence a defendant under Florida Statute § 801.091. ³

There is a serious question concerning whether a nolo contendere plea waives the right to later challenge the constitutionality of a statute through a federal habeas petition. We have some doubt about the law in Florida. However, because we agree on the disposition of this case on the merits ⁴ we are not going to consider the waiver issue nor do we find it necessary to certify that question to the Supreme Court of Florida. See State of Florida ex rel. Shevin v. Exxon Corporation, 526 F.2d 266, 275 (5th Cir. 1976), cert. denied, 425 U.S. 930, 96 S.Ct. 1659, 48 L.Ed.2d 172 (1976).

CONSTITUTIONALITY

Gable contends Florida Statute § 800.04 is so vague and overbroad that it violates his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution. The particular terms of the statute attacked are "lewd, lascivious or indecent manner" and the second reference to the commission of "any lewd or lascivious" act.

In 1971, the Florida Supreme Court considered the question of vagueness of Florida Statute § 800.04, and in particular the second reference in the statute to "lewd or lascivious" acts, in Chesebrough v. State, 255 So.2d 675 (Fla.1971). Because appellant was not charged under the second clause we find it unnecessary to reach appellant's attack upon it.

Gable also challenges the constitutionality of the first clause of the Florida Statute under which Gable was charged and convicted. Stated again it provides:

Any person who shall handle, fondle, or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner We find this clause, when taken in context, not so vague as to be unconstitutional. ⁵

The United States Supreme Court has held:

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. Footnote omitted.

United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1953). See also Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1971); United States v. Hawes, 529 F.2d 472, 479 (5th Cir. 1976).

The challenged clause meets this standard of constitutional definiteness in describing the forbidden conduct. This narrowly constructed clause describes a manner of action in the specific context of handling, fondling or making an assault upon a child of tender years. Surely a person of ordinary intelligence could reasonably be expected to understand what such a clause forbids.

DELAY

Petitioner contends he was deprived of his right to a speedy trial under the Sixth Amendment and/or his right to due process of law under the Fifth and Fourteenth Amendments because the state trial court delayed complying with the appellate court's mandate for 118 days. ⁶

Petitioner and the district court cite Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which provides the denial of the right to speedy trial must be determined on a ad hoc basis, weighing four factors: (1) Length of delay; (2) Reason for delay; (3) Defendant's assertion of his right; and (4) Prejudice to the defendant.

Assuming arguendo the speedy trial rights of the Constitution are applicable to this mandate for resentencing we find the petitioner is not entitled to relief under the four factors set forth in Barker. The delay here was 118 days (whereas Rule 3.191(g), Florida Rules of Criminal Procedure, allows 90 days for a retrial). The record indicates no apparent reason for the delay. The petitioner did not assert his right until approximately 97 days after the mandate was issued. Petitioner alleges no prejudice caused by the delay and we find none. Since petitioner received the same ten-year sentence with credit for time served, he did not receive one extra day of confinement because of the delay. Weighing these factors we cannot find a deprivation of petitioner's constitutional right. ⁷

For the foregoing reasons we affirm the judgment of the district court.

1 Fla. Statute § 800.04, since amended, read as follows at the time of petitioner's arrest (the amended statute did not change the...