Cashatt v. State, No. 1D02-4638.

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM.
Citation873 So.2d 430
Decision Date26 April 2004
Docket NumberNo. 1D02-4638.
PartiesJeffrey L. CASHATT, Appellant, v. STATE of Florida, Appellee.

873 So.2d 430

Jeffrey L. CASHATT, Appellant,
v.
STATE of Florida, Appellee

No. 1D02-4638.

District Court of Appeal of Florida, First District.

April 26, 2004.

Rehearing Denied June 1, 2004.


873 So.2d 433
Lawrence G. Walters, of Weston, Garrou & DeWitt, Altamonte Springs, for Appellant

Charles A. Crist, Jr., Attorney General; Charlie McCoy, Senior Assistant Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

In October 2001, appellant conversed over the Internet, by means of a "bulletin board" posting and ensuing e-mail messages, with a vice detective who twice stated to appellant that he was a 14-year-old boy. Appellant arranged to meet the boy in Jacksonville for the purpose of participating in illegal sexual activities, and showed up at the meeting place at the time agreed upon, wearing the clothes which he had told the boy by e-mail that he would be wearing. After his numerous motions to dismiss were denied, appellant pled nolo contendere to violation of section 847.0135(3), Florida Statutes (2001), included in the "Computer Pornography and Child Exploitation Prevention Act of 1986," which provides:

Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or
873 So.2d 434
chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

On appeal, he challenges the facial constitutionality of this statute, and also contends that the statute is invalid for failure to state a mens rea or scienter requirement. Finally, he argues that the trial court erred in denying his motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), asserting that the state failed to demonstrate a prima facie case against him. We find that the statute is valid as against all of appellant's challenges, and that the state's evidence was sufficient to demonstrate his violation of the statute.

Constitutional Issues

Appellant contends that section 847.0135(3) violates the First Amendment of the United States Constitution because it is a content-based restriction on protected "pure speech" which cannot pass the "strict scrutiny" test, that the statute is overbroad and void for vagueness, and that it places discriminatory restrictions on interstate commerce. We have considered and rejected each of his arguments.

A facial challenge to a statute is more difficult than an "as applied" challenge, because the challenger must establish that no set of circumstances exists under which the statute would be valid. Except in a First Amendment challenge, the fact that the act might operate unconstitutionally in some hypothetical circumstance is insufficient to render it unconstitutional on its face; such a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied. A facial challenge considers only the text of the statute, not its application to a particular set of circumstances, and the challenger must demonstrate that the statute's provisions pose a present total and fatal conflict with applicable constitutional standards. See People v. Hsu, 82 Cal.App.4th 976, 99 Cal.Rptr.2d 184, 189 (2000); People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123,128, cert. denied, 531 U.S. 875, 121 S.Ct. 181, 148 L.Ed.2d 124 (2000); Hatch v. Superior Court, 80 Cal.App.4th 170, 94 Cal.Rptr.2d 453, 470 (2000).

Under the First Amendment, content-based speech restrictions will not survive strict scrutiny unless the government can show that the regulation promotes a compelling government interest and that it chooses the least restrictive means to further the articulated interest. See Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Courts have applied to statutes restricting speech an "overbreadth" doctrine, rendering the statute invalid in all its applications (i.e., on its face) if it is invalid in any of them, the defect being that the means chosen to accomplish the government's objective are too imprecise, so that in all its applications it createsan unnecessary risk of chilling constitutionally protected speech. See Hsu, 99 Cal.Rptr.2d at 189; Foley, 731 N.E.2d at 128.

The state has a compelling interest in protecting the physical and psychological well-being of children, which extends to shielding minors from material that is not obscene by adult standards, but the means must be carefully tailored to achieve that end so as not to unnecessarily deny adults access to material which is indecent (constitutionally protected), but not obscene (unprotected). See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Sable Communications, 492 U.S. at 130-31, 109 S.Ct. 2829. Courts have recognized

873 So.2d 435
that speech used to further the sexual exploitation of children does not enjoy constitutional protection, and while a statute may incidentally burden some protected expression in carrying out its objective, it will not be held to violate the First Amendment if it serves the compelling interest...

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51 practice notes
  • Ex parte Lo, No. PD–1560–12.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 19, 2014
    ...must have an “unlawful sexual intent” that involves “the specific intent to commit an enumerated sex offense”); Cashatt v. State, 873 So.2d 430, 433–34, 435 n. 1 (Fla. 1st Dist.2004) (upholding constitutionality of Florida Statutes § 847.0135(3), which provided: “Any person who knowingly ut......
  • KUVIN v. CITY of CORAL GABLES, No. 3D05-2845.
    • United States
    • Court of Appeal of Florida (US)
    • August 25, 2010
    ...render them constitutional. Thus, on the grounds raised by appellant, the ordinances are facially constitutional. See Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004) (holding that a facial challenge to a statute is more difficult than an “as applied” challenge because the challenge......
  • Kuvin v. City of Coral Gables, No. 3D05–2845.
    • United States
    • Court of Appeal of Florida (US)
    • August 25, 2010
    ...render them constitutional. Thus, on the grounds raised by appellant, the ordinances are facially constitutional. See Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004) (holding that a facial challenge to a statute is more difficult than an “as applied” challenge because the challenge......
  • Woods v. State, CASE NO. 1D15–4042
    • United States
    • Court of Appeal of Florida (US)
    • April 24, 2017
    ...a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied." Cashatt v. State , 873 So.2d 430, 434 (Fla. 1st DCA 2004).One possible constitutional "application" of subsection (10) is that a defendant may 214 So.3d 808waive his constituti......
  • Request a trial to view additional results
51 cases
  • Ex parte Lo, No. PD–1560–12.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • March 19, 2014
    ...must have an “unlawful sexual intent” that involves “the specific intent to commit an enumerated sex offense”); Cashatt v. State, 873 So.2d 430, 433–34, 435 n. 1 (Fla. 1st Dist.2004) (upholding constitutionality of Florida Statutes § 847.0135(3), which provided: “Any person who knowingly ut......
  • KUVIN v. CITY of CORAL GABLES, No. 3D05-2845.
    • United States
    • Court of Appeal of Florida (US)
    • August 25, 2010
    ...render them constitutional. Thus, on the grounds raised by appellant, the ordinances are facially constitutional. See Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004) (holding that a facial challenge to a statute is more difficult than an “as applied” challenge because the challenge......
  • Kuvin v. City of Coral Gables, No. 3D05–2845.
    • United States
    • Court of Appeal of Florida (US)
    • August 25, 2010
    ...render them constitutional. Thus, on the grounds raised by appellant, the ordinances are facially constitutional. See Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004) (holding that a facial challenge to a statute is more difficult than an “as applied” challenge because the challenge......
  • Woods v. State, CASE NO. 1D15–4042
    • United States
    • Court of Appeal of Florida (US)
    • April 24, 2017
    ...a challenge must fail unless no set of circumstances exists in which the statute can be constitutionally applied." Cashatt v. State , 873 So.2d 430, 434 (Fla. 1st DCA 2004).One possible constitutional "application" of subsection (10) is that a defendant may 214 So.3d 808waive his constituti......
  • Request a trial to view additional results

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