Simmons v. State

• Decision Date: 15 November 2004
• Docket Number: No. 1D02-4977.,1D02-4977.
• Citation: 886 So.2d 399
• Parties: Michael John SIMMONS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

886 So.2d 399

Michael John SIMMONS, Appellant, v. STATE of Florida, Appellee.

No. 1D02-4977.

District Court of Appeal of Florida, First District.

November 15, 2004.

Wm. J. Sheppard and Matthew R. Kachergus of Sheppard, White and Thomas, P.A., Jacksonville, for Appellant.

Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.

POLSTON, J.

Appellant Michael John Simmons brings facial constitutional challenges against criminal statutes sections 847.0135 and 847.0138, Florida Statutes (2002), relating to use of the Internet. These constitutional issues are reviewed de novo. See Enter. Leasing Co. S. Cent., Inc. v. Hughes, 833 So.2d 832, 834 (Fla. 1st DCA 2002)

. Because these statutes are not unconstitutional, we affirm the appellant's convictions under these statutes.

In the early morning hours of July 1, 2002, a Columbia County Deputy Sheriff entered an Internet chat room, titled "I like older men," posing as a 13-year old girl named "Sandi." An on-line conversation ensued between Sandi and appellant, who was in the Commonwealth of Virginia. After Sandi identified herself as a 13-year-old girl in Florida, appellant repeatedly communicated with Sandi about sexual activities, sent nude pictures of himself to Sandi, asked Sandi to send him a pair of panties, asked to teach Sandi about sex, encouraged Sandi to meet him for sexual activities, and eventually made a trip to Lake City, Florida, in order to meet Sandi for three days of sexual activities at a hotel. Members of the Columbia County Sheriff's Office met and arrested appellant at the hotel in Lake City, Florida, upon his arrival.

Appellant was charged in count one with luring or enticing a child by use of an on-line service, in violation of section 847.0135, in count two with transmission of materials harmful to a minor, in violation of section 847.0138, and in count three with carrying a concealed firearm, in violation of section 790.01(2), Florida Statutes (2002). Appellant moved to dismiss count one of the information, alleging that section 847.0135 imposes an unconstitutional burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the United States Constitution. He moved to dismiss count two on the grounds that section 847.0138 violates the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution and imposes an unconstitutional burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the United States Constitution. Appellant also moved to dismiss count two of the information on the basis that his prosecution for violations of both sections 847.0135 and 847.0138 constituted a double jeopardy violation. In addition, appellant moved to dismiss both counts one and two on the ground that the trial court lacked jurisdiction to proceed on the matter.

Following hearings on appellant's motions to dismiss, the trial court denied the motions. After the trial court ruled, appellant pled no contest to counts one and two of the information, reserving his right to appeal the denial of his dispositive motions to dismiss.¹ Appellant was sentenced to two concurrent five-year terms of probation. We affirm the trial court's ruling rejecting the dormant commerce clause challenge against section 847.0135, in count one, in accordance with this court's recent ruling in Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004) (holding that section 847.0135 does not violate the commerce clause).

I.

Appellant challenges section 847.0138 on the basis that it violates the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution. Section 847.0138 states:

(1) For purposes of this section:

(a) "Known by the defendant to be a minor" means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.

(b) "Transmit" means to send to a specific individual known by the defendant to be a minor via electronic mail.

(2) Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775,083, or s. 775.084.

(3) Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual know by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added). Relevant definitions, provided in section 847.001, are:

(1) "Adult" means a person 18 years of age or older.

...

(6) "Harmful to minors" means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:

(a) Predominantly appeals to the prurient, shameful, or morbid interest of minors;

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and

(c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

Appellant contends that section 847.0138 is not narrowly tailored to serve a compelling state interest, is vague, and is overbroad. We disagree and, therefore, affirm.

Appellant argues that because section 847.0138 restricts expression protected by the First Amendment based on its content, it is presumptively invalid and can only be upheld if it survives strict scrutiny, citing United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The State concedes that strict scrutiny applies as argued by appellant and makes no argument that the prohibited expression that is "harmful to minors" constitutes obscene communication not protected by the First Amendment.² "Sexual expression which is indecent but not obscene is protected by the First Amendment." Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Accordingly, because section 847.0138 "regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. [citing Sable Communications, 492 U.S. at 126,109 S.Ct. 2829]. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." Playboy Entm't Group, Inc.,529 U.S. at 813,120 S.Ct. 1878.

"The state has a compelling interest in protecting the physical and psychological well-being of children, which extends to shielding minors from material that is not obscene by adult standards, but the means must be carefully tailored to achieve that end so as not to unnecessarily deny adults access to material which is indecent (constitutionally protected), but not obscene (unprotected). See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)

; Sable Communications, 492 U.S. at 130-31,

109 S.Ct. 2829,

106 L.Ed.2d 93." Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004); see also Reno v. ACLU, 521 U.S. 844, 875, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (stating that the Court has "repeatedly" recognized the government's interest in protecting children from harmful materials, citing Ginsberg v. New York, 390 U.S. 629, 639, 88 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 engage her in oral sex, using language which described this in a graphic manner; the dissent opined that the majority's construction of the lewd or lascivious statute was "outlawing speech" and should be more narrowly construed to not apply to speech so it would not be unconstitutional). Appellant does not argue that the government lacks a compelling interest, but asserts that section 847.0138 is not sufficiently tailored to promote such an interest.

Appellant argues that section 847.0138 is overbroad because it "limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech." We disagree because section 847.0138 only pertains to harmful images, information, or data that is sent to a specific individual known by the defendant to be minor, "via electronic mail." See §§ 847.0138(1)(b), 847.0138(3), Fla. Stat. Because the defendant must have actual knowledge or believe that the recipient of the communication was a minor, see § 847.0138(1)(a), Fla. Stat., adults are not deprived of their constitutional right to engage in protected speech. Communications from adult to adult(s), from adult to those who are believed to be an adult (including minors who are posing as an adult on the Internet), and from adult to those who are not known (by actual knowledge or belief) to be an adult or minor are not restricted by this statute. Only communications to a minor are prohibited.

Much of the constitutional discussion by the parties and by my respected colleague, Judge Browning, in his dissent,³ involves "chat rooms" and whether indecent, but not obscene, adult to adult speech is chilled by the statute. The analysis for protection of speech under the First Amendment is the same when the speech occurs in a computer chat room with text messaging as when the speech occurs in...