Hutchin v. State

• Decision Date: 13 February 1974
• Docket Number: No. 44319,44319
• Citation: 290 So.2d 35
• Parties: Clarence T. HUTCHIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 35

290 So.2d 35

Clarence T. HUTCHIN, Appellant, v. STATE of Florida, Appellee.

No. 44319.

Supreme Court of Florida.

Feb. 13, 1974.

Louis O. Frost, Jr., Public Defender, and James O. Brecher, Asst. Public Defender, for appellant.

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

PER CURIAM:

This is an appeal from the Circuit Court of Duval County, Florida, transferred by the First District Court of Appeal. The Circuit Court upheld in this case the constitutionality of Section 870.01(2), Florida Statutes, F.S.A., which provides:

'(2) All persons guilty of a riot, or of inciting or encouraging a riot, shall be guilty of a felony of the third degree. . . .'

The Appellant, Clarence Tyron Hutchin, was informed against by the State as follows:

'that . . . on the 15th day of March 1973 . . . (he) did then and there incite and encourage a riot, by calling to a crowd, to-wit: 'No mother-fucking persons is going to put me in that car, my brothers will stop you,' contrary to the provisions of Section 870.01(2), F.S. (F.S.A.)'

Motion to dismiss the information on the ground of the statute's unconstitutionality was denied by the Circuit Court.

We decline to rule on the constitutionality, vel non, of the statute in question, for this case may be decided on other grounds. Failure to dismiss the information has resulted in an unconstitutional application of the statute to the facts of this case.

The information does not sufficiently allege that appellant incited a riot. There is nothing in the single sentence employed by appellant that reasonably indicates he was urging a crowd to riot. True, a reprehensible obscenity was employed by appellant, but indecent language alone does not provoke a riot without more. Possibly he could be charged with a violation of the indecent language statute, F.S. Section 847.04, F.S.A.

Appellant shouted an obscenity and said no one would put him in a car, but there are no allegations he acted to lead or urged others of sufficient numbers to join him in an illegal riot. He may have been disorderly and guilty of a misdemeanor, but there is clear insufficiency in the allegations of the information to charge him with a riot felony. Moreover, the information does not allege any facts indicating appellant created a clear and present danger to the public peace or that any riot actually eventuated as a result of appellant's outcry. Cf. In re Fuller, 255 So.2d 1 (Fla.1971), and cases cited therein.

Reversed.

CARLTON, C.J., and BOYD, McCAIN and DEKLE, JJ., concur.

ROBERTS, J., dissents.

ERVIN, J., concurs specially with opinion, in which ROBERTS, J., dissents.

ERVIN, Justice (concurring specially):

I concur in the majority opinion, but I am also of the view that we should hold the statute, F.S. Section 870.01(2), F.S.A., facially unconstitutional.

The statute is couched oversimplistically and does not bother to provide any definitions of its critical words or attempt to delimit their overbroad application. It is altogether unlike the federal anti-riot statute, 18 U.S.C. §§ 2101, 2102, which painstakingly informs citizens by precise definitions the meaning and limits of the words, 'riot', 'inciting', 'organizing, promoting, encouraging, participating in, or carrying on a riot'. The federal statute is specifically limited to exclude proscription of oral or written advocacy of ideas or expression of belief. 18 U.S.C. § 2102. The Florida statute contains nothing therein to restrict its use of the word 'riot' to the context of a clear and present danger of an immediate ate public disruption.

From its broad language, all those who conceivably will be involved in the statute's reach, the citizens, the police, the prosecutor, the judge, defense counsel, the jury, must attempt to guess at its scope and intent as a penal statute. Particularly the nebulous words 'inciting or encouraging a riot' which are the crux of the Appellant's offense, give meaning trouble. For example, is the obscene language which the information charged Appellant uttered sufficient in itself to constitute incitement to riot within the meaning of the statute? Or was there incitement because Appellant shouted that his brothers would stop him from being put in the (patrol) car. That the language Appellant used is obscene is obvious, but obscene language may repulse aesthetic feelings without resulting in public disorder. There may be public tumult, uproar, even disorder, without the same reaching the proportions of an illegal riot as dictionarily defined or as defined in the cited federal statute. For example, honking one's automobile horn in congested traffic which is police stopped is loud sound, not incitement to riot.

The statute is silent as to the number of persons necessary for an affray or riot. It does not attempt by guidelines to distinguish between disorderly conduct--breach of the peace--of an individual or individuals--a misdemeanor; and a riot of a larger number of persons--a felony. It draws no distinction between innocent and harmful expression. It does not attempt to warn the citizen of the boundary between protected and unprotected speech under the First Amendment.

The statute as well as the information filed in this case leaves these nebulous problems to the guesswork of the police, the prosecutor, the judge, the defense attorney and the jury--with the possibility of an after-the-fact shoring up or demolition of the lower court result at the appellate level. All of this places the 'cart before the horse.' The citizen should have statutory due notice, warning in advance of what he's up against in this matter of illegal rioting versus the exercise of basic speech freedoms and abuse thereof without being compelled to await judicial amendment of the penal legislation to ascertain what the Legislature intended. In other words, simple, everyday due process. The Florida statute does not appear to give it.

It is almost supererogation to cite from the numerous cases which have tried to explicate the law relating to vagueness and overbreadth of statutes that impinge upon basic freedoms. Nevertheless, we note Connally v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, in which the United States Supreme Court gave constitutional significance to the commonsense requirement that criminal laws convey with specificity a definite warning as to the conduct they proscribe. This case was followed by the leading Florida case of Brock v. Hardie (1934), 114 Fla. 670, 678--679, 154 So. 690, 694, which holds that statutory language must be sufficiently explicit to inform as to what conduct renders one liable to criminal penalty. It is elementary that in order for a penal statute to be valid, 'the crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.' Connally v. General Construction Co., supra, 269 U.S. at 393, 46...