Macchione v. State

• Decision Date: 11 October 2013
• Docket Number: No. 5D12–685.,5D12–685.
• Citation: 123 So.3d 114
• Parties: Patrick MACCHIONE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

123 So.3d 114

Patrick MACCHIONE, Appellant,

v.STATE of Florida, Appellee.

No. 5D12–685.

District Court of Appeal of Florida, Fifth District.

Oct. 11, 2013.

James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

Patrick Macchione is a deeply disturbed individual who suffers from “severe” mental illness. This may explain, but does not excuse (mental competence is not an issue), his obsession with the victim and his threats to take the victim's life. Macchione comes to this court with an array of convictions that include sixteen violations of repeat violence injunction and one conviction each for aggravated stalking after an injunction, aggravated stalking with a credible threat, and violation of section 836.10, Florida Statutes (2009), which makes it a crime if a person “writes or composes and also sends or procures the sending of any letter or inscribed communication ... to any person, containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent....” § 836.10, Fla. Stat. (2009). ¹ Of these convictions, Macchione challenges only the latter, contending that the trial court committed reversible error in denying his motion to dismiss that charge. The question presented is whether, as Macchione contended in his motion and contends in this appeal, the threatening electronic communications in the form of Twitter postings and YouTube videos were not prohibited by section 836.10 when he composed and transmitted them in 2009.

These convictions are the result of a plea Macchione entered.² He reserved the right to appeal the denial of the motion to dismiss he had previously filed. The court found, and the State agreed, that the motion is dispositive of the charge alleging violation of section 836.10, and hence this appeal. The facts and circumstances surrounding the commission of this offense are not particularly helpful to the resolution of the issue before us. It is enough simply to say that the threats to harm and kill the victim were contained in YouTube videos and Twitter postings and that all of the charged communications were stipulated by the State to be electronic communications composed and transmitted in 2009.

The significance of the stipulated facts lies in the historical development of section 836.10. The statute was enacted in 1913 and provided that it was a criminal offense “if any person write or compose and also send or procure the sending of any letter or inscribed communication ... to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent....” Ch. 6503, Laws of Fla. (1913). The statute has been amended four times since its original enactment, but the first three amendments (the third amendment occurred in 1971) virtually left unchanged the pertinent provisionswe are concerned with. The fourth amendment, expressly made effective October 1, 2010, did significantly amend the statute by incorporating the following changes (strike through means deletion, underline means addition):

If Any person who writes or composes and also sends or procures the sending of any letter, or inscribed communication, or electronic communication,so written or composed, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits,the person so writing or composing and so sending or procuring the sending of such letter or communication, shall be guilty of a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Ch.2010–51, § 1, at 381, Laws of Fla. Macchione contends that this amendment constitutes a substantive change by including the prohibition against sending a threatening “electronic communication.” Because it is a substantive change as opposed to a clarification, Macchione further contends that the 2009 version of the statute that he was charged with violating does not make his electronic communications (Twitter postings and YouTube videos) a criminal offense. He cannot be convicted under the 2010 amendment, he argues, because that would constitute a violation of the constitutional protection against ex post facto laws. The State takes the opposite view, contending that the 2010 amendment to section 836.10 clarified that electronic communications were intended all along by the Legislature to fall within the meaning of the statutory provisions enacted in the 1913 era and therefore no ex post facto violation occurred.

The prohibition against ex post facto laws is found in both the United States and Florida constitutions. U.S. Const. art. I, § 10; art. I, § 10, Fla. Const. This constitutional proscription “forbids the enactment of ‘laws with certain retroactive effects,’ ” Shenfeld v. State, 44 So.3d 96, 100 (Fla.2010) (quoting Stogner v. California, 539 U.S. 607, 610, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003)), that fall into four general categories recognized by the courts as providing an authoritative guide governing the evaluation of all ex post facto claims. Shenfeld;Stogner. Of these categories, the first one, categorizing as an improper ex post facto law “[e]very law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” is applicable here. Shenfeld, 44 So.3d at 100 (quoting Stogner, 539 U.S. at 612, 123 S.Ct. 2446, which adopted the four categories listed in Calder v. Bull, 3 U.S. 386, 3 Dall. 386, 1 L.Ed. 648 (1798)); see also Collins v. Youngblood, 497 U.S. 37, 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Clarifying amendments are generally not considered substantive enactments because they usually do not make acts criminal that were not previously declared criminal or increase the punishment for offenders. Rather, such amendments are understood as clarifying or explaining the legislative intent that animated enactment of the original statute, and usually do not fit within the parameters of any accepted category of ex post facto law. See State v. Nuckolls, 606 So.2d 1205, 1207 (Fla. 5th DCA 1992). If the 2010 amendment is a clarification of the statute as originally enacted in 1913, as the State contends, Macchione's conviction must be affirmed.

There are factors the courts apply when determining whether a statutory amendment is a clarification of existing law that may be applied retroactively. They include: whether the amendment responds to a recent controversy; the span of time between enactment of the original statute and the amendment; and the contents of the title of the bill containing the amendment. Each will be discussed seriatim.

“When ... an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” Lowry v. Parole & Prob. Comm'n, 473 So.2d 1248, 1250 (Fla.1985) (citations omitted); see Foster v. State, 861 So.2d 434, 439 (Fla. 1st DCA 2002); Matthews v. State, 760 So.2d 1148, 1150 (Fla. 5th DCA 2000); State v. Sedia, 614 So.2d 533, 535 (Fla. 4th DCA 1993). Our canvass of the pertinent case law revealed no reported decision applying the pre-amendment version of section 836.10 to electronic communications, so we see no controversy created by the courts. We also do not see anything the State has submitted that would suggest a controversy was brewing elsewhere that would prompt the Legislature to enact the amendment.

The span of time between the enactment of the statute and its amendment, see Parole Commission v. Cooper, 701 So.2d 543, 544–45 (Fla.1997), and State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 62 (Fla.1995), is a factor that bodes particularly well for Macchione's position that the amendment is not a clarification. In Cooper, the court held that “it is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent,” 701 So.2d at 544–45, and in Laforet, the court held that “[i]t would be absurd ... to consider legislation enacted more than ten years after the original act as a clarification of original intent....” 658 So.2d at 62. Here, the pertinent provisions of the statute virtually remained unchanged from the time of its enactment in 1913 until October 1, 2010, and this span of 97 years exceeds more than nine times the ten-year period applied in Cooper and Laforet. And the span of time between the prior amendment in 1971 (which did not alter the pertinent provisions of the statute) and the 2010 amendment is almost three times the ten-year period. See Ramcharitar v. Derosins, 35 So.3d 94, 99 (Fla. 3d DCA 2010) (reversing an order finding the amendment was a clarification; concluding that “the 2003 revision to section 440.10 occurred twenty years after the Court decided Abernathy and some twenty-nine years after the 1974 amendment to section 440.10. As was held by the Court in similar circumstances, given that the membership between the 1974 and 2003 Legislatures was substantially different, it would be absurd to consider the 2003 revision as a clarification of the Legislature's original intent in 1974 ....”); see also M.W. v. Davis, 756 So.2d 90, 103 n. 26 (Fla.2000) (“Due to the gap between when the language was originally placed in the statute and the most recent amendment, the 1999 amendment cannot be seen as clarifying the Legislature's intent in 1986 ....“ (citation omitted)).

The courts also look to the title of the bill where legislative intent is often...