Giorgetti v. State

• Citation: 821 So.2d 417
• Decision Date: 17 July 2002
• Docket Number: No. 4D00-3594.,4D00-3594.
• Parties: Victor GIORGETTI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

821 So.2d 417

Victor GIORGETTI, Appellant, v. STATE of Florida, Appellee.

No. 4D00-3594.

District Court of Appeal of Florida, Fourth District.

July 17, 2002.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Douglas J. Glaid, Assistant Attorney General, West Palm Beach, for appellee.

CORRECTED OPINION ON MOTION FOR REHEARING

FARMER, J.

We withdraw our opinion on motion for rehearing originally released May 22, 2002, and substitute this corrected opinion. We deny the motion for rehearing of our decision after rehearing but grant certification of a question of great public importance.

Defendant's motion for rehearing after our summary affirmance calls our attention to an issue he argued during briefing, the significance of which we failed to appreciate in our decision affirming his conviction. Upon reconsideration we withdraw our affirmance and reverse his conviction for a new trial and certify a question of great public importance to the supreme court.

In November 1992 defendant was convicted of an indecent assault committed in January 1991 and was sentenced to 2 years imprisonment, followed by 7-years probation. In March 1997 his probation status was changed to "administrative" by which the state's supervision was converted to "non-contact." On April 30, 1999, defendant's probation was terminated.¹ Between that date and the date of his arrest on the current charge defendant moved to a new address.

Barely two weeks after the termination of probation, an officer came into contact with defendant at his new place of abode while looking for another person. The officer asked defendant for identification, and then checked his name through the computer system. The officer determined that the address shown on the identification was different from the place where he had his residence. Defendant was charged with violations of sections 943.0435 and 944.607 for failing to report his change of address within 48 hours.²,³ Violations of these two statutes (the sexual offender registration statutes) are punishable as third-degree felonies.⁴

Before trial, defendant challenged the constitutionality of the sexual offender registration statutes because they do not contain an intent—or mens rea—requirement. The trial court denied the challenge. At trial the state asked for, and the trial court approved, a special jury instruction saying:

"The State does not have to prove the elements of intent; nor does the State have to prove the defendant acted with malicious or wrongful mental attitude."

Defendant objected to the instruction. The jury convicted him as charged.

On appeal defendant raised four issues, the first involving the constitutionality of the statutes in question in failing to require guilty knowledge, mens rea, intent, or scienter; and the last involving the special jury instruction declaring that guilty knowledge, mens rea, intent, or scienter need not be proved by the state to show a violation of the sexual offender registration statutes. In affirming we merely cited our prior decisions in Simmons v. State, 753 So.2d 762 (Fla. 4th DCA 2000) and Quinn v. State, 751 So.2d 627 (Fla. 4th DCA 1999). Quinn decided the constitutional issue and held that section 943.0435 was not invalid in failing to contain an explicit textual requirement of scienter or an element of guilty knowledge. Simmons simply follows Quinn in that holding. Neither case addresses the entirely separate issue as to whether the court should nevertheless read such a requirement into the statute. We now proceed to address that issue.

The concept of a strict liability crime, without any requirement of scienter or guilty knowledge, has been addressed in several cases and has been approved by the Supreme Court. For example in United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922), the Court appeared to give general approval to such statutes when the subject constitutes "regulatory measures in the exercise of what is called the police power." 258 U.S. at 252,42 S.Ct. 301. In United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922), the Court flatly stated: "If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent." 258 U.S. at 288,42 S.Ct. 303.

In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), however, the Court seemed reluctant to go quite so far. Referring to these earlier decisions, Justice Jackson wrote:

"The Behrman and Balint offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

"While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called `public welfare offenses.' These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving." [e.s., c.o., f.o.]

342 U.S. at 252-56, 72 S.Ct. 240. While the sexual offender registration statutes conceivably fall into the category and policies described by Justice Jackson, we note his emphasis that when guilty knowledge is not required the penalties for such offenses are "relatively small."

Several years later, in United States v. United States Gypsum, 438 U.S. 422, 442, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978), the Court held that a violation of Sherman Anti Trust-Act punishable by a term of 3 years imprisonment was inconsistent with any holding that the Act should be construed as a strict liability crime. The Court pointedly said that "[c]ertainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement" and that criminal offenses requiring no mens rea have a "generally disfavored status." 438 U.S. at 438, 98 S.Ct. 2864. The Court held that it would apply the "background assumption" requiring courts to infer mens rea to the Sherman Act. In Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), a case involving criminal charges for illegal possession of food stamps, the Court stated that "the failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law." 438 U.S. at 426, 98 S.Ct. 2864.

More recently in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Court similarly held that the National Firearms Act required a presumed scienter or guilty knowledge requirement where the criminal penalties were punishable by up to 10 years imprisonment. In United States v....