Gonzales v. City of Belle Glade

• Citation: 287 So.2d 669
• Decision Date: 20 December 1973
• Docket Number: Nos. 42530,42478,s. 42530
• Parties: Iva Nelson GONZALES, Appellant, v. CITY OF BELLE GLADE, Appellee. Gloria SMITH and Rudolph Sweet, Appellants, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 669

287 So.2d 669

Iva Nelson GONZALES, Appellant, v. CITY OF BELLE GLADE, Appellee.

Gloria SMITH and Rudolph Sweet, Appellants, v. STATE of Florida, Appellee.

Nos. 42530, 42478.

Supreme Court of Florida.

Dec. 20, 1973.

Eric J. Haugdahl, Florida Rural Legal Services, Jacksonville, for appellant, Gonzales.

Kent Spriggs, Tallahassee, for appellants, Smith and Sweet.

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee, City of Belle Glade.

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee, State of Florida.

ADKINS, Justice.

Iva Nelson Gonzales, hereinafter referred to as 'Gonzales,' appeals from a judgment of conviction entered by the Municipal Court of the City of Belle Glade, Florida. Gloria Smith and Rudolph Sweet, hereinafter referred to as 'Smith and Sweet,' appeal from a judgment of conviction entered by the County Judge's Court of Jackson County, Florida. Both trial courts passed upon the validity of Fla.Stat. § 877.03, F.S.A. We have jurisdiction. Fla.Const., art. V, § 3(b)(1), F.S.A.

This Court has consistently upheld the validity of the challenged statute, most recently in Bradshaw v. State, 286 So.2d 4 (op. filed November 21, 1973), and prior thereto in State v. Magee, 259 So.2d 139 (Fla.1972). Nothing has occurred to warrant receding from these opinions.

The entire records and transcripts in both cases demonstrate that the convictions must be reversed due to the unconstitutional application of the disorderly conduct statute. In order for the statute to be constitutionally applied, it must be proved that some act on the part of the accused either corrupted the public morals, outraged the sense of public decency, affected the peace and quiet of persons who witnessed the conduct of the accused, or that the accused engaged in brawling or fighting, or engaged in conduct constituting a breach of the peace or disorderly conduct. As to what constitutes a 'breach of the peace' or 'disorderly conduct,' any factual situation can be viewed in light of the common law meaning of those terms. This Court has consistently held that statutes should be read in the light of the common law. Nolan v. Moore, 81 Fla. 594, 88 So. 601 (1921); Meeks v. Johnston, 85 Fla. 248, 95 So. 670 (1923), and Ellis v. Brown, 77 So.2d 845 (Fla.1955).

All that appears from the record--taken in the light most favorable to the State and the City--is that Smith and Sweet participated in a protest march, that both made threatening comments to police officers, and that Gonzales was vocally dissatisfied with the service afforded her and her companions in an eating establishment. There was no evidence that Smith or Sweet struck or even touched a police officer, that they actually offered a physical threat to any officer, or that they violated any law. Likewise, there was no evidence of any wrongdoing by Gonzales with the possible exception of the utilization of an intemperate expletive or two. In neither case was there any evidence that the actions of any of the appellants were more than annoying to those around them, and a violation of Fla.Stat. § 877.03, F.S.A., requires more than the creation of a mere annoyance.

These cases are reversed on the basis of the failure of the State and the City of Belle Glade to prove actions on the part of the appellants which would constitute violations of Fla.Stat. § 877.03, F.S.A. In light of this finding, it is improper to reach the issue of constitutionality Vel non. Finch v. Fitzpatrick, 254 So.2d 203 (Fla.1971).

For the foregoing reasons, the judgments of the trial courts are reversed and the causes are remanded for further proceedings not inconsistent with the views expressed herein.

It is so ordered.

ROBERTS, Acting C.J., McCAIN and DEKLE, JJ., and DREW, Justice Retired, concur.

ERVIN, J., specially concurs.

BOYD, J., concurs in part and dissents in part with opinion, in which ERVIN, J., concurs.

ERVIN, Justice (specially concurring):

I concur with Justice Boyd that the subject ordinances are unconstitutional. I thoroughly agree with Justice Adkins that the application of the ordinances to the facts in these cases is unconstitutional, no disorderly conduct appearing.

BOYD, Justice (concurring in part, dissenting in part):

I concur with that part of the majority opinion which finds no evidence, in either of these consolidated cases, to indicate a breach of the peace or disorderly conduct on the part of the appellants, and which reverses the convictions and remands the causes for further proceedings.

I dissent to the portion of the majority decision which reads as follows:

'This Court has consistently upheld the validity of the challenged statute, most recently in Bradshaw v. State, 286 So.2d 4 (op. filed November 21, 1973), and prior thereto in State v. Magee, 259 So.2d 139 (Fla.1972). Nothing has occurred to warrant receding from these opinions.'

While I concurred with the majority in State v. Magee, Supra, I dissented in our most recent case of Bradshaw v. State, Supra. Contrary to the majority's statement that, 'Nothing has occurred to warrant receding from these opinions,' I believe that A great deal has occurred, all of it warranting a change in results. I refer to the rendition of three cases by the Supreme Court of the United States, which I will deal with in detail in the body of my dissent, and which clearly prohibit the enactment of statutes such as that under attack today.

I. Florida, Pre-Papachristou

The appellants' contentions, as regards the vagueness and overbreadth of the statute, mirror those presented by the appellant in In re Fuller. ¹ Consequently, this is not a novel question before this Court. In Fuller, although the appellant attacked the statute on its face, ² this Court did not reach that issue because it found for the appellant that the statute was unconstitutional as applied to the facts of the case. The Court did, however, take occasion to give some indication of its views as to the statute's facial constitutionality:

'Furthermore, we are not as confident as Appellant that when and if the exact question of the constitutionality vel non of Section 877.03 is decided by the Supreme Court of the United States it will be found unconstitutional. Florida Courts in recent years have upheld statutes employing general language similar in nature to the language in Section 877.03, and these decisions have not been overturned by the nation's highest court.' ³

This Court did have occasion to pass on the facial constitutionality of the statute in State v. Magee. ⁴ In Magee, in reversing the trial judge's holding that the verbiage, 'whoever commits such acts as are of a nature to corrupt the public morals or outrage the sense of public decency,' was unconstitutional, we said:

'We find that the language does meet the test of common understanding (and) is constitutional. . . .'

'. . . (N)ot every detail is required to be set forth in such a statute so long as the prohibitive conduct is in such language that it is understood by the average citizen. The terms 'public decency' and 'corrupt the public morals' are terms of general understanding . . ..'

'Under such generally understood language, the specific conduct will of course vary and is made fully known to a defendant in the charges filed against him, so that he is made aware against what conduct he must defend.' ⁵

II. The Impact of Papachristou, et al.

In retrospect, this Court was eminently correct in its approach to the statute, in both the Fuller and Magee decisions, in view of the then existing state of the law. So, too, was the learned trial judge in the instant case, in applying Fuller and Magee as the controlling Florida precedent. However, both Fuller and Magee were decided prior to the landmark companion cases of Papachristou v. City of Jacksonville ⁶ and Smith v. Florida, ⁷ decided by the Supreme Court of the United States on February 24, 1972, and in light of the expressions in those and other decisions, ⁸ I have concluded that the time is ripe for reconsideration of our position on the statute.

Papachristou held that the Jacksonville vagrancy ordinance ⁹ was void for vagueness, both in the sense that it failed to give a person of ordinary intelligence fair notice that his contemplated conduct was forbidden by the ordinance, ¹⁰ and because it encouraged arbitrary and erratic arrests and convictions. ¹¹ One month later, the Supreme Court indicated that Papachristou and Smith were not narrow decisions or aberrations, but rather were the current general approach to statutes of this genre. In Gooding v. Wilson, ¹² a Georgia criminal statute, ¹³ punishing the use of abusive language tending to cause a breach of the peace, was held facially unconstitutional under the First and Fourteenth Amendments, where it was determined that the Georgia State Courts had not limited and construed the statute as applying only to 'fighting words'. ¹⁴ It would thus appear that the underpinnings for this Court's position in both Fuller and Magee have been removed; reading the language of Section 877.03 in pari materia with that of the Jacksonville vagrancy ordinance and the Georgia statute, ¹⁵ and noting the strong condemnations of the latter two provisions by the Supreme Court of the United States, ¹⁶ it would appear that, as a result of the commands of Papachristou, Smith v. Florida, and Gooding v. Wilson, Section 877.03 can no longer pass constitutional muster. We should therefore hold Section 877.03, Florida Statutes, 1971, F.S.A., vague and overbroad, and unconstitutional on its face. ¹⁷

III. Does Florida Need A Breach Of Peace/Disorderly Conduct Statute?

If this writer's position had prevailed, the Legislature would be, of course, free to re-enact a new breach of the peace/disorderly conduct statute, within the foregoing constitutional limitations. In Franklin v. State, Supra, this Court gave the Legislature precisely such a mandate:

'This statute and...