Enoch v. State
| Decision Date | 27 July 2012 |
| Docket Number | CASE NO. 1D10-3443 |
| Parties | NAYMONTIE NASHARE ENOCH, Appellant, v. STATE OF FLORIDA, Appellee. |
| Court | Florida District Court of Appeals |
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
An appeal from the Circuit Court for Alachua County.
Nancy A. Daniels, Public Defender; and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General; and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
Naymontie Enoch appeals his convictions and sentences pursuant to sections 874.05(1) and 874.11, Florida Statutes (2009). At issue is the constitutionality of these statutes enacted to protect the public from crimes committed by criminal gangs. Concluding that section 874.05(1) is constitutional, we affirm theconviction and sentence on that count. However, because section 874.11 substantially treads upon protected speech and expressive conduct, associational activity, and other innocent acts and cannot be suitably narrowed to comport with federal and state constitutional requirements, we are constrained to reverse the conviction and sentence on that count.
Section 874.05(1), the "gang recruitment" provision, was enacted to protect the public from speech and conduct used to encourage gang membership, where a condition of membership or continued membership is the commission of any crime. Section 874.11, the "electronic communication" regulation, proscribes the use of such communication to intimidate or harass others, or to advertise one's presence in the community, for the purpose of benefiting, promoting, or furthering the interests of a criminal gang. In the instant case, the two counts in the amended information essentially repeated the statutory language and referred to specific conduct occurring between August 25 and September 16, 2009, which the State intended to prove with a DVD containing YouTube videos of Enoch. Enoch moved to dismiss the information.
After the trial court denied the motion to dismiss, Enoch entered a plea of no contest to both counts, expressly reserving his right to appeal the denial of this dispositive motion. Defense counsel told the court that she and Enoch had discussed what evidence the State would have presented had the case gone to trial,and counsel believed the prosecution had a sufficient factual basis to go forward. The prosecutor gave a brief factual recitation for both counts (basically tracking the two statutes), which the court accepted without an objection. The judge found the plea was freely, knowingly, and voluntarily made; adjudicated Enoch guilty; and sentenced him on the first count to 36 months' incarceration, to be followed by two years' probation; and on the second count to five years' probation, to be served consecutively to the probationary term in the first count. This direct appeal followed.
The motion to dismiss asserted that sections 874.05(1) and 874.11 are, as a matter of constitutional law, void for vagueness because they contain terms so unclear that a person of common intelligence must necessarily guess at their meaning. See U.S. Const. amend. V; State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980). The motion alleged also that both statutes violate the Due Process Clause of the Florida Constitution because they are susceptible to unreasonable, arbitrary, and capricious application. See Art. I, § 9, Fla. Const.; State v. DeLeo, 356 So. 2d 306, 307 (Fla. 1978). In a third claim, Enoch contended the statutes violate freedom of speech and association under the federal and state constitutions. See U.S. Const. amend. I; Art. I, § 4, Fla. Const. In this appeal, Enoch raises thesefacial constitutional challenges to the "gang recruitment" and "electronic communication" statutes.
Chapter 874, Florida Statutes (2009), is known as the "Criminal Gang Prevention Act." § 874.01. The Florida Legislature has defined certain key terms pertinent to Enoch's constitutional claims:
"Criminal gang" means a formal or informal ongoing organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common identifying signs, colors, or symbols, including, but not limited to, terrorist organizations and hate groups.
"[P]rimary activities" means that a criminal gang spends a substantial amount of time engaged in such activity, although such activity need not be the only, or even the most important, activity in which the criminal gang engages.
"Electronic communication" has the meaning provided in s. 934.02[(12), Fla. Stat.] and includes, but is not limited to, photographs, video, telephone communications, text messages, facsimile, electronic mail messages as defined in s. 668.602[(7), Fla. Stat.], and instant message real-time communications with other individuals through the Internet or other means.
Constitutional challenges to statutes are pure questions of law, subject to de novo review. Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2010). Generally, a statute ispresumed constitutional and the challenging party has the burden to establish the statute's invalidity beyond a reasonable doubt. See State v. Lick, 390 So. 2d 52, 53 (Fla. 1980). It is our duty "to construe challenged legislation to effect a constitutional outcome whenever possible." Fla. Dep't of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005). "[A] state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts." Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975). "To uphold a statute in the face of a constitutional challenge, a court may place a saving construction on the statute when this does not effectively rewrite the statute." Fla. Dep't of Children & Families v. F.L., 880 So. 2d 602, 607 (Fla. 2004).
The First Amendment challenges require us to determine whether section 874.05(1) and/or section 874.11 violates freedom of speech and freedom of association. "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broad. Sys., Inc. v. Fed. Commc'ns Comm'n, 512 U.S. 622, 641 (1994). "To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance." Cohen v. California, 403 U.S. 15, 24-25 (1971).That is, the fundamental rights embodied in the First Amendment compel the courts to "protect the freedom to express even 'the thought that we hate.'" Christian Legal Soc'y Chapter of Univ. of Cal., Hastings Coll. of Law v. Martinez, 130 S. Ct. 2971, 3000 (2010) (Alito, J., dissenting) (quoting United States v. Schwimmer, 279 U.S. 644, 654-55 (1929) (Holmes, J., dissenting)). Enoch asserts both statutes infringe on First Amendment rights because they proscribe speech, expressive conduct, and associational activity without reference to actual, imminent criminal activity, and are impermissibly overbroad, in that a substantial number of their applications are unconstitutional when compared to the clearly valid aspect of each provision.
The "gang recruitment" statute implicated in Count One states:
§ 874.05(1), Fla. Stat. (2009). Because this provision regulates speech, expressive conduct, and associational activity, we must submit its proscriptions to First Amendment analysis. State v. Shank, 795 So. 2d 1067, 1069 (Fla. 4th DCA 2001).
Being a content-based regulation that focuses specifically on what the...
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