Romero v. State

Decision Date20 January 2021
Docket Number No. 3D20-0035, No. 3D20-0036,No. 3D20-0032, No. 3D20-0034, No. 3D20-0033,3D20-0032
Citation314 So.3d 699
Parties Alex ROMERO, Petitioner, v. The STATE of Florida, Respondent. Richard Gugula, Petitioner, v. The State of Florida, Respondent. Jerome London, Petitioner, v. The State of Florida, Respondent. Ventura Gomez, Petitioner, v. The State of Florida, Respondent. Reginald Brown, Petitioner, v. The State of Florida, Respondent.
CourtFlorida District Court of Appeals

Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for petitioners.

Ashley Moody, Attorney General, and Richard L. Polin, Assistant Attorney General, for respondent.



In these consolidated cases, petitioners seek second-tier certiorari review of appellate decisions by the circuit court affirming their respective convictions and sentences imposed by the county court for violations of section 836.12(2), Florida Statutes (2019). Relying heavily upon the seminal Supreme Court decision in Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003), petitioners raise a facial constitutional challenge to the statute for overbreadth under the First Amendment. We conclude the statute is amenable to a construction under which it does not reach a substantial amount of constitutionally protected speech in furthering the State's valid, even "overwhelming, interest in protecting the safety of its" officers and "in allowing [them] to perform [their] duties without interference from threats of physical violence."1 Watts v. United States, 394 U.S. 705, 707, 89 S. Ct. 1399, 1401, 22 L. Ed. 2d 664 (1969). Thus, we find no departure from the essential requirements of law and deny the writs.


After uttering certain menacing statements, each petitioner was charged by information with one count of threatening a law enforcement officer.2 Petitioners argued in the trial court that section 836.12, Florida Statutes (2019), is unconstitutionally overbroad, contending the legislature's failure to specify any requirement of scienter runs afoul of the First Amendment. In some cases, the judge specifically found any overbreadth issue could be resolved by way of a jury instruction. Regardless, in all cases, the county court upheld the constitutionality of the statute. Ensuing appeals to the circuit court appellate division proved unfruitful, and the instant petitions followed.


On second-tier certiorari, our " ‘inquiry is limited to whether the circuit court afforded procedural due process and whether the circuit court applied the correct law,’ or, as otherwise stated, departed from the essential requirements of law." Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1092 (Fla. 2010) (citation omitted). "A ruling constitutes a departure from the essential requirements of law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’ " Miami-Dade Cnty. v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003) (citation omitted).


As due process was clearly afforded below, we focus our review on whether, in upholding section 836.12, Florida Statutes, the circuit court departed from clearly established constitutional law. Our analysis is guided by the axiom that courts are charged with the "duty[,] if reasonably possible, and consistent with constitutional rights, to resolve doubts as to the validity of a statute in favor of its constitutional validity and to construe a statute, if reasonably possible, in such a manner as to support its constitutionality." Corn v. State, 332 So. 2d 4, 8 (Fla. 1976).

I. Overbreadth

"The First Amendment, applicable to the States through the Fourteenth Amendment, provides that Congress shall make no law ... abridging the freedom of speech.’ " Black, 538 U.S. at 358, 123 S. Ct. at 1547 (alteration in original). Consequently, "[w]hen a statute encroaches upon activity protected by the First Amendment, the challenger may bring a ‘substantial overbreadth’ facial challenge." Ex parte Bradshaw, 501 S.W.3d 665, 671 (Tex. Ct. App. 2016) (citing United States v. Stevens, 559 U.S. 460, 473, 130 S. Ct. 1577, 1587, 176 L. Ed. 2d 435 (2010) ). The First Amendment overbreadth doctrine "represents a departure from the traditional rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court." Bates v. State Bar of Ariz., 433 U.S. 350, 380, 97 S. Ct. 2691, 2707, 53 L. Ed. 2d 810 (1977) (citations omitted). Accordingly, the doctrine allows a litigant to raise a facial violation, even if the conduct of the party would not enjoy protection under the First Amendment. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 2918, 37 L. Ed. 2d 830 (1973).

Under certain circumstances, even where there is some legitimate application and the parties were not engaged in activity protected by the First Amendment, a statute may be declared facially unconstitutional. See Osborne v. Ohio, 495 U.S. 103, 112 n.8, 110 S. Ct. 1691, 1697 n.8, 109 L. Ed. 2d 98 (1990) ("[D]efendants [are permitted] to challenge statutes on overbreadth grounds, regardless of whether the individual defendant's conduct is constitutionally protected."). In order to succeed in an overbreadth challenge, the litigant "must demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the [statute] cannot be applied constitutionally." N.Y. State Club Ass'n, Inc. v. City of N.Y., 487 U.S. 1, 14, 108 S. Ct. 2225, 2234, 101 L. Ed. 2d 1 (1988). "Whether a regulation is overbroad depends on its application ‘to real-world conduct, not fanciful hypotheticals.’ " Hoglan v. Robinson, No. 7:15-cv-00694, at *4, 2018 WL 1570821 (W.D. VA. Mar. 30, 2018) (quoting Stevens, 559 U.S. at 485, 130 S. Ct. at 1594 (Alito, J., dissenting)).

"The overbreadth doctrine is ‘strong medicine’ that is used ‘sparingly and only as a last resort.’ " N.Y. State Club Ass'n, Inc., 487 U.S. at 14, 108 S. Ct. at 2234 (quoting Broadrick, 413 U.S. at 613, 93 S. Ct. at 2916 ). Indeed, as was so aptly observed by one of the county court judges below, "[p]rior to finding a law overbroad on its face, a court should ‘first determine that the regulation is not "susceptible to a reasonable limiting construction." " O.P-G. v. State, 290 So. 3d 950, 959 (Fla. 3d DCA 2019) (citation omitted).

II. True Threats

"[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ " Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct. 1700, 1707, 152 L. Ed. 2d 771 (2002) (citation omitted). Consequently, "the Constitution ‘demands that content-based restrictions on speech be presumed invalid ... and that the Government bear the burden of showing their constitutionality.’ " United States v. Alvarez, 567 U.S. 709, 716-17, 132 S. Ct. 2537, 2544, 183 L. Ed. 2d 574 (2012) (citation omitted) (alteration in original).

Nonetheless, "[f]rom 1791 to the present, ... our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas." R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S. Ct. 2538, 2542-43, 120 L. Ed. 2d 305 (1992). These limited categories consist of "well-defined and narrowly limited classes of speech" or expressive conduct which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S. Ct. 766, 769, 86 L. Ed. 1031 (1942).

a. Watts v. United States, 394 U.S. 705 (1969).

As relevant to this case, states are free to ban speech amounting to a "true threat" without running afoul of the First Amendment. Black, 538 U.S. at 359, 123 S. Ct. at 1547 (citations omitted). The true threats doctrine finds its genesis in the oft-cited Supreme Court case of Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969). There, during the Vietnam War, while attending a protest, Watts stated he would resist the draft and, "[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J." Id. at 706, 89 S. Ct. at 1401. Watts was charged and convicted under a statute prohibiting any individual from "knowingly and willfully" making "any threat to take the life or to inflict bodily harm upon the President of the United States." Id. at 705, 89 S. Ct. at 1400.

The Court determined the relevant statute was "certainly ... constitutional on its face," given the Nation's "valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence." Id. at 707, 89 S. Ct. at 1401. Nevertheless, as the statute "ma[de] criminal a form of pure speech," it had to be "interpreted with the commands of the First Amendment clearly in mind." Id. at 707, 89 S. Ct. at 1401. Thus, "a threat must be distinguished from what is constitutionally protected speech." Id. at 707, 89 S. Ct. at 1401. The Court ultimately concluded Watts's statement, "[t]aken in context," including its "expressly conditional nature ... and the reaction of the listeners," was mere political hyperbole that did not qualify as a "true ‘threat’ " under the statute. Id. at 708, 89 S. Ct. at 1402.

b. Virginia v. Black, 538 U.S. 343 (2003).

Over three decades later, in Virginia v. Black, the Court reaffirmed the proposition that among the categories of speech states may regulate, consistent with the First Amendment, are true threats.

538 U.S. at 359, 123 S. Ct. at 1547 (citations omitted). At issue was the constitutionality of a provision of a Virginia statute proscribing the burning of a cross...

To continue reading

Request your trial
2 cases
  • Meinecke v. State
    • United States
    • Florida District Court of Appeals
    • November 30, 2022
    ... ... Oklahoma , 413 U.S. 601, 612 (1973)). However, ... "[p]rior to finding a law overbroad on its face, a court ... should 'first determine that the regulation is not ... "susceptible to a reasonable limiting ... construction." '" Romero v. State , 314 ... So.3d 699, 702-03 (Fla. 3d DCA 2021) (alteration in original) ... (quoting O.P-G. v. State , 290 So.3d 950, 959 (Fla ... 3d DCA 2019)); see also Figueroa-Santiago v. State , ... 116 So.3d 585, 588 (Fla. 2d DCA 2013) ("When addressing ... a facial ... ...
  • T.R.W. v. State
    • United States
    • Florida District Court of Appeals
    • February 15, 2023
    ...statute was overbroad under the First Amendment, the court concluded that the statute was valid and did not reach protected speech. Romero, 314 So.3d at 707. The court adopted a narrower construction of "threat," writing that "the term threaten must be narrowly construed as encompassing onl......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT