LaMorte v. State
| Citation | 984 So.2d 548 |
| Decision Date | 02 May 2008 |
| Docket Number | No. 2D06-4346.,2D06-4346. |
| Parties | James Peter LaMORTE, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Martin J. Hernandez, Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
James Peter LaMorte entered no contest pleas in two separate informations involving sexual offenses against two children. LaMorte reserved his right to appeal the denial of his motions to dismiss based on the statute of limitations. We affirm.
On February 16, 2005, LaMorte resigned from his position as a high school teacher and swim team coach with the Sarasota County School System. Thereafter, on June 8, 2005, LaMorte was charged with sexual offenses against two children, identified hereinafter as D.P. and W.K. Both children were students at Venice High School, and D.P. also was a member of the swim team.
LaMorte entered a plea of no contest in case 05-CF-10351 to the first-degree felony offense of sexual battery by a person in custodial authority in violation of section 794.011(4)(e), Florida Statutes (1981-1983), for acts committed upon D.P., a child over the age of eleven years but less than eighteen, between August 1, 1981, and February 18, 1984.1 LaMorte also entered a plea of no contest in case 05-CF-10352 to the second-degree felony offense of attempted sexual activity with a child by a person in custodial authority in violation of sections 794.041, Florida Statutes (Supp. 1990-1991), for acts committed upon W.K., a child twelve years or older but less than eighteen, between September 2, 1990, and June 30, 1992. He also entered a similar plea to the second-degree felony offense of lewd, lascivious, or indecent act upon or in the presence of a child under sixteen years of age in violation of section 800.04, Florida Statutes (Supp.1990-1991), for acts committed upon W.K. during that same time period. All of these offenses were committed while LaMorte was a coach and teacher at Venice High School.
The informations to which LaMorte entered the pleas specifically charged that during the pertinent time periods LaMorte "while being a public employee" did "engage in misconduct in office" by committing enumerated sexual offenses upon these students at a time when LaMorte was in a position of custodial or official authority to coerce each child to submit to him. The informations alleged the misconduct was related to school activities and/or swim team activities and/or LaMorte's position as a teacher and/or coach at Venice High School.
Before LaMorte entered into the plea agreements, he filed motions to dismiss the charges in both cases. He argued in pertinent part that the prosecutions were barred by the statute of limitations and that section 775.15(3)(b), Florida Statutes (1981-1983, Supp. 1990-1991),2 which extends the statute of limitations for misconduct in office by a public employee, is unconstitutionally vague.
A hearing was conducted to consider LaMorte's motions to dismiss. The motions were denied. When LaMorte entered into the plea agreements, he reserved his right to appeal the denial of his motions to dismiss. LaMorte was convicted of the first-degree and second-degree felonies in accordance with his plea.
Prosecution for a first-degree felony must be commenced within a four-year period. § 775.15(2)(a), Fla. Stat. (1981-1983). Prosecution for a second-degree felony must be commenced within three years. § 775.15(2)(b), Fla. Stat. (Supp. 1990-1991). However, an extension of these statutes of limitations is found in section 775.15(3)(b) which states:
(b) Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he or she leaves public office or employment, or during any time permitted by any other part of this section, whichever time is greater.
LaMorte argues that the legislature did not intend for the statutory extension of the limitations period supplied by section 775.15(3)(b) to apply to his actions while he was employed as a public school teacher. He bases this argument on the statutory language: "Any offense based upon misconduct in office by a public officer or employee. . . ." (Emphasis supplied.) LaMorte argues that the statute only applies to persons who hold public office. The trial court rejected LaMorte's argument. We also find LaMorte's argument not to be persuasive.
Section 775.15(b)(3) was the product of a revision in the laws in 1974. Ch. 74-383, § 10, Laws of Fla. In formulating the statute, the legislature substantially rewrote section 932.465, Florida Statutes (1973), and renumbered it to become section 775.15. Prior to renumbering and amendment, the 1973 version of section 932.465(3) provided:
(3) Offenses by state, county, or municipal officials committed during their terms of office and connected with the duties of their office shall be commenced within two years after the officer retires from the office.
The amendment specifically edited the statute to eliminate the reference to "offenses" committed during the officials' "terms of office" which were "connected with the duties of their office." Instead, the amended statute used the words "misconduct in office" and added the public "employee" to the list of persons included in the extension of the limitations period.
We conclude that the legislature's act of rewriting the statute clearly indicates that it did not intend to restrict the extension of the limitations period only to those individuals who hold public office. The legislature specifically included the word "employee" and referenced that employee's "employment." LaMorte's argument that the statute only applies to public officer holders is without merit.
This is a case of first impression in Florida with regard to the use of section 775.15(3)(b) to extend the statute of limitations for prosecution of a public school teacher.3 Chapter 775 is entitled "Definitions General Penalties; Registration of Criminals." However, the statute does not define "public officer or employee" or "misconduct in office." LaMorte claims that because there are no definitions for these terms, the statute is unconstitutionally vague. We disagree.
"When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning." Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). We conclude that the term "public officer or employee" is clear on its face and needs no definition.
Although we also conclude that the meaning of "misconduct in office" is not ambiguous, it is a well-settled rule of statutory construction that in the absence of a statutory definition, courts can resort to definitions of the same term found in case law. See Crist v. Jaber, 908 So.2d 426, 432 (Fla.2005); Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000).
"Misconduct in office" by public school teachers is defined in rule 6B-4.009(3), Florida Administrative Code, governing the Department of Education:
6B-4.009. Criteria for Suspension and Dismissal.
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes [now section 1012.33, Florida Statutes (2005)]. The basis for each of such charges is hereby defined:
....
(3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.
This rule is discussed in Walker v. Highlands County School Board, 752 So.2d 127 (Fla. 2d DCA 2000); Purvis v. Marion County School Board, 766 So.2d 492 (Fla. 5th DCA 2000); Roberts v. Castor, 629 So.2d 311 (Fla. 1st DCA 1993); and MacMillan v. Nassau County School Board, 629 So.2d 226, 227, 230 (Fla. 1st DCA 1993) (). We do not agree that it is necessary to resort to relying on these cases for a definition of the term "misconduct in office" and hold that LaMorte's argument that the statute is unconstitutionally vague is without merit.4 Accordingly, we affirm the convictions and sentences imposed.
Affirmed.
1. LaMorte also had been charged in case 05-CF-10351 with lewd, lascivious, or indecent act upon or in the presence of D.P., a child under fourteen years of age in violation of section 800.04, Florida Statutes (1979-1983). However, the State later dismissed this charge.
2. In 1981 through 1983 and 1990 through 1991, section 775.15(3)(b) was the applicable subsection for extending the statute of limitations for misconduct in office by a public employee. The subsection is now located at section 775.15(12)(b). The wording of the subsection has not changed over the years. In criminal cases, the applicable statute of limitations is that which is in effect at the time of the offense giving rise to the criminal charges. State v. Perez, 952 So.2d 611 (Fla. 2d DCA 2007); see Rubin v. State, 390 So.2d 322, 323-24 (Fla. 1980). LaMorte cites to section 775.15(12)(b) throughout his argument. In this opinion, citations to the statute shall be to the...
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