Morris v. State, No. 1D99-4286.

CourtCourt of Appeal of Florida (US)
Writing for the CourtALLEN, J.
Citation789 So.2d 1032
PartiesRichard Lee MORRIS, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 1D99-4286.
Decision Date29 May 2001

789 So.2d 1032

Richard Lee MORRIS, Appellant,
v.
STATE of Florida, Appellee

No. 1D99-4286.

District Court of Appeal of Florida, First District.

May 29, 2001.

Rehearing Denied July 19, 2001.


789 So.2d 1033
Nancy Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant

Robert A. Butterworth, Attorney General, and Karla D. Ellis, Assistant Attorney General, Tallahassee, for Appellee.

EN BANC

ALLEN, J.

The appellant challenges a conviction entered upon a nolo plea reserving the right to appeal the denial of his motion to dismiss. The motion was filed pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and with a contention that § 800.04(4), Fla. Stat. (1997), could not be applied to what the appellant described as a verbal interchange with the victim. Considering the appeal en banc in accordance with Florida Rule of Appellate Procedure 9.331(a), we conclude that the factual allegations are sufficient to bring the appellant's conduct within the statutory proscription against the commission of a lewd or lascivious act.

Section 800.04(4), Florida Statutes (1997), expressly pertains to one who knowingly commits "any lewd or lascivious act" in the presence of a child under the age of sixteen. The appellant was charged with violating this statute by telling a child that he desired to engage her in oral sex, using language which described this in a graphic manner. In his rule 3.190(c)(4) motion the appellant alleged that the child was visiting in his home and lying on his couch when he addressed her with the specified remarks expressing his sexual desire. The appellant further indicated that when the child expressed confusion the appellant explained his intent with specific language which was even more sexually graphic. Noting that he made no motion toward the child and did not hinder her when she got up and left, the appellant asserted that his conduct consisted merely of verbal statements within the privacy of his own home and that these undisputed facts do not establish a prima facie violation of § 800.04(4).

There is no dispute as to whether the language which the appellant used was lewd or lascivious. Instead, the appellant challenges the application of the statute to verbal conduct which is unaccompanied by other physical action. But the statutory reference to a prohibited "act" is commonly understood as encompassing conduct or behavior which involves only verbal statements or speech. See lA C.J.S. Act 1985. Indeed, this court is one of many which have recognized the concept of a verbal act in the context of a criminal proscription. E.g., L.J.M. v. State, 541 So.2d 1321 (Fla. 1st DCA), review denied, 549 So.2d 1014

789 So.2d 1034
(Fla.1989). There is no question but that the appellant understood that he was acting in a lewd or lascivious manner when he uttered his sexually offensive remarks to the child, and the appellant's motion to dismiss was properly denied as his conduct violated the statutory proscription against such a lewd or lascivious act

The appealed order is affirmed.

BARFIELD, C.J., BOOTH, MINER, WOLF, KAHN, WEBSTER, DAVIS, VAN NORTWICK, LEWIS and POLSTON, JJ., CONCUR; BENTON, J., DISSENTS WITH OPINION IN WHICH BROWNING, J., CONCURS; PADOVANO, J., DISSENTS WITHOUT OPINION; BROWNING, J., DISSENTS WITH OPINION IN WHICH ERVIN, J., CONCURS.

BENTON, J., dissenting.

Did speaking in a lewd and lascivious manner in the presence of a child violate section 800.04(4), Florida Statutes (1997), which authorized fifteen years' imprisonment for anybody who "[k]nowingly commit[ted] any lewd or lascivious act in the presence of any child under the age of 16 years," § 800.04(4), Fla. Stat. (1997)? (Emphasis supplied.)

I.

The present case poses this artificially isolated question because counsel employed the procedure authorized in State v. Ashby, 245 So.2d 225 (Fla.1971), to frame the issue. See Brown v. State, 376 So.2d 382, 384 (Fla.1979); Lester v. State, 754 So.2d 746, 747 (Fla. 1st DCA 2000); Griffin v. State, 753 So.2d 676, 677-78 (Fla. 1st DCA 2000). "Where the parties stipulate that an issue is dispositive, we will not `"go behind" the stipulation of the parties in an effort to ascertain whether the issue is truly dispositive.' Phuagnong v. State, 714 So.2d 527, 528 (Fla. 1st DCA 1998)(quoting Zeigler v. State, 471 So.2d 172, 175 (Fla. 1st DCA 1985))." Mylock v. State, 750 So.2d 144, 146 (Fla. 1st DCA 2000).

II.

By construing section 800.04(4), Florida Statutes (1997), to outlaw lewd or lascivious speech, the majority opinion dishonors at least three canons of statutory construction, viz.: "One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature." Green v. State, 604 So.2d 471, 473 (Fla.1992). "[W]here criminal statutes are susceptible to differing constructions, they must be construed in favor of the accused." Thompson v. State, 695 So.2d 691, 693 (Fla.1997) (citing Scates v. State, 603 So.2d 504, 505 (Fla. 1992)). "Courts are inclined to adopt that reasonable interpretation of a statute which removes it farthest from constitutional infirmity." Tornillo v. Miami Herald Publ'g Co., 287 So.2d 78, 85 (Fla.1973), rev'd, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (concluding statute even so interpreted was constitutionally infirm on First Amendment grounds). Accordingly, I respectfully dissent.

A.

"[T]he power to create crimes and punishments in derogation of the common law inheres solely in the democratic processes of the legislative branch." Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991). In order that this power not be usurped by judges (however well meaning), the statutory language the Legislature employs when "creating crimes" must be given its plain and ordinary meaning.

Until today, section 800.04(4), Florida Statutes (1997), has been held to apply only to lewd or lascivious acts, not to salacious

789 So.2d 1035
language. Our supreme court has said
Under Florida criminal law the terms "lewd" and "lascivious" are synonymous: Both require an intentional act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others.

Schmitt v. State, 590 So.2d 404, 410 (Fla. 1991) (footnotes omitted and emphasis supplied). The supreme court's definitive gloss on "lewd or lascivious act" excludes speech.

This exclusion is in keeping with traditional English usage, which differentiates among thought, word, and deed, and distinguishes between "sticks and stones" and words. As commonly understood in the context of a penal statute, "`act' or `action' means a bodily movement whether voluntary or involuntary...." Black's Law Dictionary 24 (7th Ed.1999) (quoting Model Penal Code § 1.13). Section 800.04(4), Florida Statutes (1997), uses the word "act" not the phrase "verbal act."

Section 800.04(1)-(3), Florida Statutes (1997), proscribed not mere words, but perpetrating acts on, to, or with children, including vaginal penetration by the defendant's penis or its "union with the vagina of the minor victim," Harris v. State, 742 So.2d 835, 838 (Fla. 2d DCA 1999); Timot v. State, 738 So.2d 387, 390 (Fla. 4th DCA 1999), and digital, see Ready v. State, 636 So.2d 67, 68 (Fla. 2d DCA 1994), or lingual contact with a child's vagina. See State v. Stone, 677 So.2d 982, 983 (Fla. 5th DCA 1996). As Judge Browning points out, the stipulated facts might more logically support a charge of attempt under one of these provisions than the charge that was in fact brought.

What was charged here was a violation exclusively of section 800.04(4), Florida Statutes (1997), which we have construed to exclude anything specifically prohibited by some other statutory provision. See Burnett v. State, 737 So.2d 1106, 1107 (Fla. 1st DCA 1998). Exposing adult genitalia to a child has been held to violate section 800.04(4), Florida Statutes (1997). See Roberts v. State, 620 So.2d 1082, 1082 (Fla. 2d DCA 1993). Otherwise, the apparent function of former section 800.04(4) was to proscribe lewd or lascivious acts perpetrated on a third party in the presence of a child. See Simmons v. State, 722 So.2d 862, 862 (Fla. 5th DCA 1998); Buggs v. State, 693 So.2d 57, 59 (Fla. 5th DCA 1997); Brinson v. State, 574 So.2d 298, 299 (Fla. 5th DCA 1991). Nothing of the kind is alleged here.

Courts should not stretch a penal statute, even to cover clear evils lying outside the statute's scope, particularly if, as Judge Browning ably argues, other statutes are aimed at the same evils. See § 827.04(1), Fla. Stat. (1997) (making contributing to the delinquency of a child "by act, threat, command, or persuasion" a first degree misdemeanor). See generally Burnett v. State, 737 So.2d at 1107.

B.

"[O]ffenses defined by ... statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused." § 775.021(1), Fla. Stat. (1997). See State v. Huggins, 26 Fla. L. Weekly S174, S175, ___ So.2d ___, ___, 2001 WL 278107 (Fla. Mar. 22, 2001); Delgado v. State, 776 So.2d 233, 240 (Fla.2000). The Florida Supreme Court has applied this legislatively mandated rule of construction to the very language at issue in the present case, then codified as section 800.04(3), Florida Statutes (1987). See State v. Werner, 609 So.2d 585, 586 (Fla.1992) (construing "lewd or lascivious act in the presence of any child"). There "Werner told his wife that he had been masturbating while

789 So.2d 1036
caring for the[ir infant] child." Id. Concluding his conviction should be reversed, the court said:
Applying the legal as well as the common-sense meaning of the word "presence" to section 800.04(3), leads us to the conclusion that, while the child need not be able to articulate or even
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7 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 2006
    ...five occasions. See Brooks v. State, 816 So.2d 199 (Fla. 1st DCA 2002) (entitlement of defendant to belated appeal); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (sufficiency of verbal conduct to support conviction for lewd and lascivious act); In Interest of D.J.S., 563 So.2d 655 (F......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 790 So.2d 1194 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Wilcox v. State, 783 So.2d 1150 (Fla. 1st......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 790 So.2d 1194 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Wilcox v. State, 783 So.2d 1150 (Fla. 1st......
  • Simmons v. State, No. 1D02-4977.
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 2004
    ...S.Ct. 1274, 20 L.Ed.2d 195 (1968) and FCC v. Pacifica Found., 438 U.S. 726, 749, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978)); Morris v. State, 789 So.2d 1032, 1036 (Fla. 1st DCA 2001) (en banc) (holding that a defendant committed a lewd or lascivious act by telling a child that he desired to eng......
  • Request a trial to view additional results
7 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • February 2, 2006
    ...five occasions. See Brooks v. State, 816 So.2d 199 (Fla. 1st DCA 2002) (entitlement of defendant to belated appeal); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (sufficiency of verbal conduct to support conviction for lewd and lascivious act); In Interest of D.J.S., 563 So.2d 655 (F......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 790 So.2d 1194 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Wilcox v. State, 783 So.2d 1150 (Fla. 1st......
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • June 28, 2006
    ...State, 790 So.2d 1194 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Morris v. State, 789 So.2d 1032 (Fla. 1st DCA 2001) (en banc decision released without antecedent publication of panel decision); Wilcox v. State, 783 So.2d 1150 (Fla. 1st......
  • Simmons v. State, No. 1D02-4977.
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 2004
    ...S.Ct. 1274, 20 L.Ed.2d 195 (1968) and FCC v. Pacifica Found., 438 U.S. 726, 749, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978)); Morris v. State, 789 So.2d 1032, 1036 (Fla. 1st DCA 2001) (en banc) (holding that a defendant committed a lewd or lascivious act by telling a child that he desired to eng......
  • Request a trial to view additional results

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