Smith v. State

• Decision Date: 05 October 1988
• Docket Number: No. 87-2885,87-2885
• Citation: 532 So.2d 50,13 Fla. L. Weekly 2300
• Parties: 13 Fla. L. Weekly 2300 Thomas J. SMITH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 50

532 So.2d 50

13 Fla. L. Weekly 2300

Thomas J. SMITH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 87-2885.

District Court of Appeal of Florida Second District.

Oct. 5, 1988.

Thomas J. Smith, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellee/cross appellant.

FRANK, Judge.

Thomas Smith appeals from his conviction and sentence for twelve counts of sending threatening letters and four counts of threatening harm to a public servant, or a person with whose welfare the public servant is interested. ¹ The state has cross-appealed contending that the trial court's decision to depart downward from the recommended guidelines sentence was based on insufficient evidence. We affirm the trial court in all respects.

Believing himself the victim of a conspiracy composed of attorneys and the judiciary, Smith mailed numerous letters to the wives of Pinellas County judges and attorneys. One was sent to the home of a circuit judge who had presided over an unsuccessful civil action initiated by Smith. The letter, purporting to originate in the office of the governor, began by praising the judge for "civic volunteerism" and "exemplary honorable character," but stated that the paper upon which it was printed was treated with a "rare, lethal toxin for which there is no antidote." In this instance the judge's wife testified that while she was "surprised" by the content of the letter, she did not believe the paper would poison her. Other recipients, however, expressed a greater degree of concern. Smith never denied sending the letters, but instead described them as "a colossal hoax to draw attention to the corruption in the Sixth Judicial Circuit." Despite his disavowal of any intent to cause harm, and his apparent belief that an underlying tone of humor was recognizable from the face of the letters, Smith was convicted as charged. ²

We cannot discern with precision whether Smith's pro se brief attacks the trial court's refusal to permit self-representation in the conduct of his trial or the effectiveness of his appointed counsel. In any event, we have reviewed the record in its entirety and find no error in the events associated with the trial of this matter.

Smith's major claims of error are that the statutes under which he was convicted are unconstitutionally vague, the evidence was insufficient to warrant a conviction and that the criminal proceeding infringed upon his First Amendment right to protest perceived inequities in the legal system. We find no merit in such claims. If the language of a criminal statute conveys sufficiently definite warnings of the proscribed conduct, it is not unconstitutionally vague. State v. Wilson, 464 So.2d 667 (Fla. 2d DCA 1985). We find the statutes offended by Smith's behavior free from constitutional defect; the proscriptions they communicate are not difficult to divine. Section 836.10 makes it a felony to send or procure the sending of any document threatening to kill or injure the recipient or a family member. Section 838.021(3)(b) condemns threats of harm to public servants or persons with whose welfare such servants are entrusted. Section 836.10 is justified by the right of all persons to live free of unexpected and unwarranted fear of harm; and section 838.021(3)(b) is designed to protect public officials in the discharge of their duties without unlawful intimidation.

We find the state's evidence sufficient to sustain Smith's convictions. The record discloses no dispute that the letters were incapable of directly causing physical injury. Moreover, the letters' wording, at least when viewed in the cold light of objective assessment, might even contain a measure of twisted wit. Smith insists that he intended no harm apart from the inevitable shock of his "hoax," and there is no evidence that he contemplated any injury to the persons receiving his letters. With any offense, however, involving or resembling extortion, and Smith's actions may be so characterized, neither the actual intent to do harm nor the ability to carry out the threats is an essential element. Alonso v. State, 447 So.2d 1029 (Fla. 4th DCA 1984); Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981). For example, in United States v. Callahan, 702 F.2d 964 (11th Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 133, 78 L.Ed.2d 128 (1983), the accused wrote the director of the Secret Service, announcing the necessity of assassinating President Reagan and Vice-President Bush on Inauguration Day. When charged with the federal offense of sending a letter containing threats against the President, Callahan maintained that his was a "conditional statement" containing only "political hyperbole," and the fact that the Secret Service did not immediately respond was indicative that the letter was not perceived as a serious threat. ³ The court nevertheless upheld Callahan's conviction, stating that the question is whether threatening language reasonably may be construed to evince a serious expression of an intent to do harm. See also, Martin v. United States, 691 F.2d 1235 (8th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983); United States v. Maisonet, 484 F.2d 1356 (4th Cir.1973), cert. denied, 415 U.S. 933, 94 S.Ct. 1447, 39 L.Ed.2d 491 (1974). In the present case the victims' reactions to Smith's letters appear to have ranged from mild concern to near panic. The jury obviously believed his threats of imminent poisoning were sufficient to cause alarm in reasonable...