Buchanan v. State, A-30

• Decision Date: 21 April 1959
• Docket Number: No. A-30,A-30
• Parties: Edward BUCHANAN, Petitioner, v. STATE of Florida and Nathan Mayo, Custodian Florida State Prison, Respondents.
• Court: Florida District Court of Appeals

Page 51

111 So.2d 51

Edward BUCHANAN, Petitioner, v. STATE of Florida and Nathan Mayo, Custodian Florida State Prison, Respondents.

No. A-30.

District Court of Appeal of Florida, First District.

April 21, 1959.

Edward Buchanan in pro. per.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for repondents.

CARROLL, DONALD K., Judge.

This is an appeal from an order of the Circuit Court for Union County, Florida, denying the appellant's petition for writ of habeas corpus and making other rulings that are the subject of cross assignments of error filed by the appellees.

In his petition the appellant set forth that he was tried in the Circuit Court for Marion County on three counts in an information, was convicted on the second and third counts, and was sentenced to twenty years on each count, the sentence on one of the counts 'to run consecutively with any sentence now being served by the defendant'.

The first count of the information charged that the appellant on January 8, 1956, in the County of Marion and State of Florida 'with force and arms at and in the County and State aforesaid, did unlawfully make an assault upon Lillie Buchanan, a female person, of the age of 13 years and did then and there attempt to have sexual intercourse with the said Lillie Buchanan'. The second count charged that the petitioner on the same date and in the same county and state 'did unlawfully and without intent to rape, did knowingly commit a lewd and lascivious act in the presence of Lillie Buchanan, a female child, of the age of 13 years by forcing her to take off her clothes and he, the said Edward Buchanan, then and there take out his penis and attempting to have sexual relations with said child'. The third count charged that the appellant on the same date and in the same county and state 'unlawfully and without any intent to rape one Lillie Buchanan, a female child of the age of 13 years, did unlawfully handle and fondle the said Lillie Buchanan in a lewd and lascivious manner by playing with her vagina with his hands and fingers, contrary to the form of the Statute in such cases made and provided and against the Peace and Dignity of the State of Florida.'

At the trial the jury acquitted the appellant of Count 1 and found him guilty of Counts 2 and 3. Based upon this verdict the Circuit Court for Marion County sentenced the appellant as follows:

'* * * that you Edward Buchanan for the crime for which you have been and now stand convicted in the second count of this information be imprisoned at hard labor in the State Prison of Florida for the full term and period of twenty (20) years.

'It is the further Order, Judgment and Sentence of this Court that you Edward Buchanan for the crime for which you have been and now stand convicted in the third count of this information be imprisoned at hard labor in the State Prison of Florida for the full term and period of twenty (20) years. Said sentence to run consecutively with any sentence now being served by the defendant herein.'

At the time this sentence was entered the appellant was not serving any sentence.

In his petition for writ of habeas corpus the appellant contended that the sentence imposed in the judgment of the Circuit Court for Marion County was invalid under the decision of the Florida Supreme Court in Copeland v. State, Fla., 76 So.2d 137; that Sections 801.02 and 801.03, Florida Statutes, F.S.A., under which the sentence was imposed, was unconstitutional; that the act charged in the third count was a mere continuation of the act charged in the first count, of which the appellant was acquitted; that both Counts 2 and 3 failed to charge a definite and specific felony; that the language of the third conformed more or less to the language in Section 800.04, Florida Statutes, F.S.A., the punishment for violation of which was ten years as a maximum. In his petition the appellant also complained conerning certain correspondence he received from the Attorney General of Florida.

In order to understand the issues involved in this appeal it is necessary to examine and study the several statutes involved.

Section 800.04, Florida Statutes, F.S.A., 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, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without intent to commit rape where such child is female, shall be deemed guilty of a felony and punished by imprisonment in the state prison or county jail for not more than ten years.'

Sections 801.02 and 801.03, Florida Statutes, F.S.A., which are parts of the 'Child Molester Act', provide:

'801.02 Definitions.--An offense under the provisions of this chapter shall include attempted rape, sodomy, attempted sodomy, crimes against nature, attempted crimes against nature, lewd and lascivious behavior, assault (when a sexual act is completed or attempted) * * * when said acts are committed against, to, or with a person fourteen years of age or under.

'801.03 Powers and duties of judge after convictions.--(1) When any person has been convicted of an offense within the meaning of this chapter, it shall be within the power and discretion of the trial judge to:

'(a) Sentence said person to a term of years not to exceed twenty-five years in the state prison at Raiford.

'(b) Commit such person for treatment and rehabilitation to the Florida state hospital, or to the hospital of the state institution to which he would be sent as provided by law because of his age or color. In any such case the court may, in its discretion, stay further criminal proceedings or defer the imposition of sentence pending the discharge of such person from further treatment in accordance with the procedure as outlined in this chapter.

'(2) When a person has been convicted of an offense within the meaning of this chapter and the trial judge shall determine to follow the procedure prescribed in subsection (1)(b) of this section, the trial judge shall order a psychiatric examination and require a written report on the person so convicted prior to committing said person or passing sentence on said person. In the event said person is convicted and committed under subsection (1)(b) of this section, the clerk of the court where such commitment is made shall transmit four certified copies of the examining psychiatrist's report to the superintendent of the Florida state prison.

'(3) When a person has been committed to an institution for treatment under the provisions of this Chapter and the superintendent of such institution certifies to the committing court that such person is not insane and further that institution has exhausted its curative abilities upon such person, such person shall be returned to the committing court for further disposition of his case by said court. The superintendent of such institution shall also return with said committed person all records and data pertaining to said person. The superintenent of such institution shall make to the committing court in such cases a report on the treatment received by such person while in the institution. Said report shall contain a diagnosis of the person's condition, a prognosis and the report of the superintendent of such institution as to whether or not such person is dangerous to society.'

The appellant contends that the Child Molester Act, F.S.A. § 801.01 et seq., is unconstitutional because in violation of Article III, Section 16, of the Florida Constitution, F.S.A., which provides:

'Each law enacted in the Legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title, and no law shall be amended or revised (by reference) to its title only; but in such case the act as revised or section, or subsection of a section, or paragraph of a subsection of a section, as amended, shal be reenacted and published at length.'

First, in considering the question as to the act's compliance with the title requirements in the quoted constitutional provision, it is necessary to examine the legislative history of the Child Molester Act. This act was first enacted by the 1951 Florida Legislature, as Chapter 26843, Laws of Florida, Acts of 1951. The title of this act is as follows:

'An Act to Provide for the Sentencing, Commitment, Treatment, Parole, Release and Discharge of Persons Convicted of Certain Sex Offenses Against Persons Under the Age of Twelve Years.'

Section 2 of Chapter 26843 provided:

'Section 2. Definitions: the following terms are defined hereafter for the purpose of this Act.

'(1) Offenses: An offense under the provisions of this Act shall include rape, attempted rape, sodomy, attempted sodomy, crimes against nature, attempted crimes against nature, lewd and lascivious vehavior, assault (when a sexual act is completed or attempted) and assault and battery, (when a sexual act is completed or attempted), when said acts are committed against, to or with a person twelve years of age or under.'

Section 3 provided:

'Section 3. When any person has been convicted of an offense within the meaning of this Act, it shall be within the power and discretion of the trial judge to:

'(1) Sentence said person to the sentence otherwise provided by law, or;

'(2) Commit such person for treatment or rehabilitation to the Florida State Hospital, or to the hospital of the State Institution to which he would be sent as provided by law because of his age or color. In any such case the court may, in its discretion, stay further criminal proceedings or defer the imposition of sentence pending the discharge of such person from further treatment in accordance with the procedure as outlined in this Act.'

The Florida Legislature amended the Child Molester Act in 1953 by the enactment of Chapter 28158, Laws of Florida, Acts of 1953, the title of which chapter is:

'An ...