Pallas v. State

• Decision Date: 03 May 1994
• Docket Number: No. 93-1493,93-1493
• Citation: 636 So.2d 1358
• Parties: 19 Fla. L. Weekly D988 John L. PALLAS, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1358

636 So.2d 1358

19 Fla. L. Weekly D988

John L. PALLAS, Appellant, v. The STATE of Florida, Appellee.

No. 93-1493.

District Court of Appeal of Florida Third District.

May 3, 1994.

Rehearing Denied June 14, 1994.

Bennett H. Brummer, Public Defender, and Manuel Alvarez, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., and Parker D. Thomson, Sp. Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.

COPE, Judge.

John L. Pallas appeals his conviction and sentence for aggravated stalking. We affirm.

Defendant was charged with aggravated stalking in violation of subsection 784.048(3), Florida Statutes (Supp.1992). He challenged the constitutionality of the statute, on federal and state grounds, arguing that the statute is vague and overbroad. The trial court entered a written order finding the statute constitutional. State v. Pallas, 1 Fla.L. Weekly Supp. 442 (Fla. 11th Cir.Ct. May 14, 1993). ¹ Defendant pled nolo contendere, reserving the right to appeal the order finding the statute constitutional. This appeal follows:

The operative facts are set out in the trial court's order:

On Sunday, January 24, 1993, the Defendant, soon to be the ex-husband of Edie Pallas, began calling the home of Penny and Harry Ragland, Edie's parents. The calls began at 7:00 A.M., waking Mr. & Mrs. Ragland and continued throughout the day, and numbering fifty times or more. Mr. & Mrs. Ragland were hiding their daughter, who was obtaining a divorce from the Defendant. The Defendant had beaten Edie and had broken her jaw during the course of the marriage. The calls were so continuous that the Raglands had to remove the phone from the hook several times during the day.

The Defendant demanded to know where Edie was. He screamed and cursed at the Raglands, he threatened to "get them," he told them he "had a gun" and "he was going to kill them." The Raglands, in fear for their lives, called the police.

Defendant was charged with aggravated stalking. The offense is defined as follows:

Any person who willfully, maliciously, and repeatedly follows or harasses another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Sec. 784.048(3), Fla.Stat. (Supp.1992).

Under the stated facts, the defendant committed acts of harassment and made threats, but did not follow the victim. Consequently, the portion of the statute applicable to defendant is that part which punishes someone who "willfully, maliciously, and repeatedly ... harasses another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury." Sec. 784.048(3), Fla.Stat. (Supp.1992). ²

The statute contains several definitions, as follows:

(a) "Harasses" means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.

(b) "Course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct." Such constitutionally protected activity includes picketing or other organized protests.

(c) "Credible threat" means a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety. The threat must be against the life of, or a threat to cause bodily injury to, a person.

Id. Sec. 784.048(1)(a)-(c).

Defendant first contends that the statute is unconstitutionally vague.

We begin with the proposition that the statute is accorded a strong presumption of validity. See United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); see also State v. Stalder, 630 So.2d 1072, 1076 (Fla.1994); State v. Elder, 382 So.2d 687, 690 (Fla.1980). "[S]tatutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language." United States v. National Dairy Products Corp., 372 U.S. at 32, 83 S.Ct. at 597 (citations omitted).

The Supreme Court has said, "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (citations omitted). "In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged." United States v. National Dairy Products Corp., 372 U.S. at 33, 83 S.Ct. at 598 (citation omitted); see also Parker v. Levy, 417 U.S. 733, 757, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); Greenway v. State, 413 So.2d 23, 24 (Fla.1982); State v. Olson, 586 So.2d 1239, 1242 (Fla. 1st DCA 1991).

Professor Tribe has summarized the applicable federal principles as follows:

As a matter of due process, a law is void on its face if it is so vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Such vagueness occurs when a legislature states its proscriptions in terms so indefinite that the line between innocent and condemned conduct becomes a matter of guesswork. This indefiniteness runs afoul of due process concepts which require that persons be given fair notice of what to avoid, and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit legislative standards.

But vagueness is not calculable with precision; in any particular area, the legislature confronts a dilemma: to draft with narrow particularity is to risk nullification by easy evasion of the legislative purpose; to draft with great generality is to risk ensnarement of the innocent in a net designed for others. Because that dilemma can rarely be resolved satisfactorily, the Supreme Court will not ordinarily invalidate a statute because some marginal offenses may remain within the scope of a statute's language.

Laurence H. Tribe, American Constitutional Law Sec. 12-31, at 1033-34 (2d ed. 1988) (footnotes omitted).

We have no difficulty in concluding that the statute gives fair notice of the proscribed activity, and is not void for vagueness. Defendant contends that in the statutory phrase, "willfully, maliciously, and repeatedly follows or harasses another person," Sec. 784.048(3), Fla.Stat. (Supp.1992), "willfully, maliciously, and repeatedly" only modifies the word "follows" and does not modify the word "harasses." From this faulty premise defendant argues that the statute is therefore vague as regards the term "harasses." We agree with the trial court that "willfully, maliciously, and repeatedly" does in fact modify the word "harasses." The language of subsection 784.048(3), in conjunction with the definitions, is reasonably clear and specific.

Defendant also argues that the statutory definition of "harasses," id. Sec. 784.048(1)(a), is vague. Under the statute, " 'Harasses' means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose." Id. Defendant reads the statute to create an entirely subjective standard for "substantial emotional distress." Thus, reasons defendant, if the victim is an unusually sensitive person the victim may suffer "substantial emotional distress" from entirely innocent social contact. Defendant contends that the statute creates a standard which is too vague and uncertain to be enforced.

In our view the statute creates no such subjective standard, but in fact creates a "reasonable person" standard. The stalking statute bears a family resemblance to the assault statutes. See Sec. 784.011(1), Fla.Stat. (1993) ("An 'assault' is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent."); id. Sec. 784.021 (aggravated assault). ³ Under the assault statutes, it is settled that a "well-founded fear" is measured by a reasonable person standard, not a subjective standard. Indeed, "where the circumstances were such as to ordinarily induce fear in the mind of a reasonable man, then the victim may be found to be in fear, and actual fear need not be strictly and precisely shown." Gilbert v. State, 347 So.2d 1087, 1088 (Fla. 3d DCA 1977) (citations omitted); McClain v. State, 383 So.2d 1146, 1147 (Fla. 4th DCA), review denied, 392 So.2d 1376 (Fla.1980). The same principle applies to the definition of "harasses" under the stalking statute; the legislature has proscribed willful, malicious, and repeated acts of harassment which are directed at a specific person, which serve no legitimate purpose, and which would cause substantial emotional distress in a reasonable person. See generally State v. Elder, 382 So.2d at 689 (upholding constitutionality of statute forbidding "the making of an anonymous telephone call with the intent to annoy, abuse, threaten, or harass the recipient of the call....").

We concur with the trial court that the statute is not vague and gives fair notice of the conduct which is proscribed. The defendant's conduct in this case falls squarely within the ambit of the statute. ⁴

Defendant also argues that the statute is overbroad. The Supreme Court has said:

The traditional rule is that a person to whom a...