Falco v. State

• Citation: 407 So.2d 203
• Decision Date: 17 December 1981
• Docket Number: No. 59538,59538
• Parties: Carmine Charles Robert FALCO, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 203

407 So.2d 203

Carmine Charles Robert FALCO, Appellant, v. STATE of Florida, Appellee.

No. 59538.

Supreme Court of Florida.

Dec. 17, 1981.

Paul R. Lipton of Leonard Robbins and Paul R. Lipton, P. A., North Miami Beach, for appellant.

Jim Smith, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., Miami, for appellee.

ADKINS, Justice.

This is an appeal from the Circuit Court of Dade County having been transferred to this Court from the Third District Court of Appeal. It involves a challenge to the constitutionality of Florida's manslaughter statute, section 782.07, Florida Statutes (1979), which appellant contends is vague and ambiguous when applied to the facts of this case, and, serves to deny him equal protection of the laws. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. (1972).

The facts of the case are uncontroverted. A youth, Richard Brush, Jr., entered appellant's home from a side bathroom window without the consent of appellant and in the course of the commission of a burglary. (The day before his entry, appellant's home had been burglarized or had been attempted to be burglarized; and, indeed had been broken into and reported to the police a number of times in the immediate past.)

Brush had already illegally entered appellant's bathroom and was opening the bathroom door to move into the living room, when he was mortally wounded by a bullet from a .22 caliber rifle positioned on a chair in the living room. No one was present at the time of Brush's entry. To activate the gun, it would have been necessary to have entered into the residence in the same manner as did Brush and to thereafter move from one interior room to another. The rifle was not attached to any exterior door or window, nor to any main entry into appellant's home, and was so aimed that the bullet would enter the bathroom door at three feet, one inch above the floor and would exit three feet, two inches above the floor. Richard Brush, Jr., was five feet, seven inches tall.

The state of Florida does not have a specific trap gun law that would prohibit as unlawful the acts complained of as against appellant. Therefore, appellant was charged by information with manslaughter pursuant to section 782.07, Florida Statutes (1979), which states:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, shall be deemed manslaughter and shall constitute a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Appellant filed a sworn motion to dismiss based on the alleged unconstitutionality of the statute as applied to the facts of this case, which motion was denied by the circuit court. Thereafter, appellant entered a plea of nolo contendere, specifically reserving his right to appeal the denial of his motion to dismiss. He was subsequently found guilty of the charge of manslaughter and sentenced to two years probation. In this appeal, appellant raises several points for our consideration.

Appellant initially contends that Florida's manslaughter statute is invalid as being vague and ambiguous when applied to the facts of this case. Conversely, he asserts that when the facts are applied to the statute, the statute was not violated by his acts. Appellant premises his argument on the language of section 782.07 which states it is not manslaughter if the acts fall within "lawful justification according to the provisions of chapter 776."

Section 776.012 of that chapter, entitled "Use of force in defense of person", and regarding use of deadly force provides in pertinent part:

However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony.

Similarly, section 776.031, entitled "Use of force in defense of others" provides:

A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony.

(Emphasis added).

However, in referring to chapter 776, appellant points out that in 1975, the Florida legislature repealed section 776.021. Pursuant to that section a person would be justified in the use of deadly force to protect a dwelling only if:

He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling. (Emphasis added).

Appellant alleges the repeal of this statute left a "constitutional flaw or gap" which renders the charge against him invalid.

Appellant predicates his attack on the constitutionality of section 782.07 primarily on the decision of this Court in Bradley v. State, 79 Fla. 651, 84 So. 677, 679 (1920). The holding of Bradley with reference to this question, is that "before a man can be punished, his case must be plainly and unmistakenly within the statute." Appellant contends that because of the repeal of section 776.021, his acts committed in defending his dwelling are not specifically prohibited by section 782.07. Furthermore, relying on the United States Supreme Court's decision in Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285 (1961), appellant maintains the exercise of different interpretations following the repeal of section 776.021 exemplifies extraordinary ambiguities in the statutory language.

At the outset, it is not clear from appellant's argument whether or not he is attacking the facial validity of section 782.07 as well as the validity of its application to the instant case. However, insofar as our determination of the former will necessarily limit our discussion of the latter, we will proceed as to both issues.

This Court has the duty, if reasonably possible, and consistent with constitutional rights, to resolve all doubts as to the validity of a statute in favor of its constitutionality. Brown v. State, 358 So.2d 16 (Fla.1978). It is an immutable principle that "a statute which either forbids or requires the doing of an act in terms so vague that anyone of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Brock v. Hardie, 114 Fla. 670, 154 So. 690, 694 (1934); see also Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146 (1927); D'Alemberte v. Anderson, 349 So.2d 164 (Fla.1977); State v. Llopis, 257 So.2d 17 (Fla.1971). This Court adopted that definition as its own and designated it as the test approved by the United States Supreme Court.

Our decisions under that principle, however, are necessarily premised on the issue of the constitutionality vel non of a specific statute. In contrast, appellant apparently premises his constitutional challenge not on an existing statute, but on the ramifications of a non-existing one. The repeal of section 776.021 allegedly creates a greater right to use deadly force to protect real property, other than a dwelling, pursuant to section 776.031 and to defend against the threat of great bodily harm or the imminent commission of a forcible felony pursuant to section 776.012, with no concomitant right to likewise defend a dwelling. Accordingly, appellant contends that he is forced to guess at the meaning of section 782.07, Florida's manslaughter statute, in contravention of the rule in Cramp and in violation of the first essential of due process of law. However, a careful examination of the Supreme Court's decision in Cramp will show that it is not authority for appellant's argument.

Cramp v. Board of Public Instruction of Orange County, Florida, involved an action by a school teacher challenging the constitutionality of a loyalty oath required by section 876.05, Florida Statutes. The Supreme Court held the statute to be unconstitutionally vague and a denial of due process of law. In so holding, the Court sought to dispel the unconstitutional evil embodied in the vague statutory language. Nothing in its decision suggests that the rule espoused by the Supreme Court, the same as that espoused by this Court in Smith v. State, 237 So.2d 139 (Fla. 1970), would necessarily include an unconstitutional gap created by the repeal of a statute. Under those circumstances, as under the instant case, there are no "vices inherent in an unconstitutionally vague statute", simply because there exists no statute. In any event, our decision in Cobb v. State, 376 So.2d 230 (Fla.1979), may well be dispositive of this issue. Cobb involved a vagueness challenge against section 782.11, Florida Statutes, which makes it a felony to "unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed ..." In upholding the validity of that statute we stated:

When the words "unnecessarily kill" in section 782.11 are considered together with the remainder of chapter 782, they are sufficiently precise to meet the constitutional standard for definiteness in penal statutes. Homicides committed while resisting another's unlawful act are punishable only if not excusable, as provided in section 782.03, Florida Statutes (1975), or if not justifiable, as...