State v. Barnes, No. 96-01047

• Court: Court of Appeal of Florida (US)
• Writing for the Court: LAZZARA; FRANK, A.C.J., and BLUE
• Citation: 686 So.2d 633
• Parties: 21 Fla. L. Weekly D2515 STATE of Florida, Appellant, v. Larry William BARNES, Jr., Appellee.
• Decision Date: 27 November 1996
• Docket Number: No. 96-01047

Page 633

686 So.2d 633 21 Fla. L. Weekly D2515 STATE of Florida, Appellant,
v.
Larry William BARNES, Jr., Appellee. No. 96-01047. District Court of Appeal of Florida,
Second District. Nov. 27, 1996.
Rehearing Denied Jan. 17, 1997.

Page 635

Robert A. Butterworth, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellee.

LAZZARA, Judge.

The state of Florida appeals the trial court's order declaring section 316.1935(2), Florida Statutes (1995), unconstitutionally vague. Because we conclude that the statute as applied to the alleged conduct of the appellee is not facially void for vagueness, we reverse and remand for further proceedings.

In 1994, the Florida legislature amended section 316.1935, Florida Statutes (1993), which prohibited fleeing or attempting to elude a police officer. One of the amendments added subsection 2 which enhanced the penalty for such conduct from a misdemeanor of the first degree to a felony of the third degree under certain circumstances. Ch. 94-276, § 1, at 1956, Laws of Fla. This subsection provides as follows:

Any person who, in the course of unlawfully fleeing or attempting to elude a law enforcement officer in an authorized law enforcement patrol vehicle with agency insignia and other jurisdictional markings prominently displayed on the vehicle with siren and lights activated pursuant to subsection (1), having knowledge of an order to stop by a duly authorized law enforcement officer, causes the law enforcement officer to engage in a high-speed vehicle pursuit commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.)

The appellee was charged with violating this statute in the first count of a two-count information. He filed a boilerplate motion to dismiss this count, specifically contending that the underscored phrase "causes the law enforcement officer to engage in a high-speed vehicle pursuit" was unconstitutionally vague and thus violated his right to due process. The appellee did not claim, however, that the statute threatened First Amendment interests. At a hearing on the motion, the appellee and the state agreed that in lieu of testimony the trial court could consider a probable cause affidavit detailing the basic facts of the case. As reflected in the trial court's subsequent written order granting the motion, the basic facts were (1) a law enforcement officer observed the appellee travelling at 68 m.p.h. in a 45-m.p.h. speed zone; (2) when the officer entered the roadway behind the appellee, the appellee made a U-turn and accelerated to a speed of 100 m.p.h.; and (3) the officer in pursuing the appellee reached a speed of 80 m.p.h. before deciding to break off the pursuit. ¹

In declaring the statute unconstitutionally vague, the trial court undertook an extensive analysis of the critical statutory phraseology which the appellee made the focus of his argument. It first rejected the appellee's claim that the undefined phrase "causes the law enforcement officer to engage in" is vague because it vests discretion in a law enforcement officer to decide whether to undertake a "high-speed vehicle pursuit," the essential element necessary for the existence

Page 636

of the felony. The trial court determined instead, based on the facts before it, that the appellee's decision to flee created the crime just as much as the officer's decision to pursue.

The trial court found a serious constitutional problem, however, with the undefined phrase "high-speed vehicle pursuit" in two respects. It first determined that this language established no "bright line" as to what conduct the statute prohibited. In support of this conclusion, the trial court delineated several hypotheticals in an attempt to accentuate the vagueness problem it found inherent in the statute: "Is a 30 m.p.h. chase through a crowded mall parking lot a felony or misdemeanor? Does it depend on the time of day? What about 75 m.p.h. on an interstate highway?" It next determined that the statute lacked clarity with respect to whether the words "high-speed" referred to the actions of a fleeing defendant or a pursuing officer. The trial court concluded, therefore, that because of these defects the statute was impermissibly vague in all of its applications such that it had "no hard core that can fairly be said to include the Defendant's conduct." As a consequence, it dismissed count one of the information.

We begin our analysis by emphasizing that we are confronted with a constitutional vagueness challenge to a criminal statute in which First Amendment interests are not implicated. ² We must, therefore, examine this challenge in light of the facts before us and judge the constitutionality of the statute on an as-applied basis because "[i]t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in light of the facts at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). In line with this undertaking, we must be guided by several well-established principles of constitutional adjudication, one of which is that "[t]here is a presumption of constitutionality inherent in any statutory analysis." Scullock v. State, 377 So.2d 682, 683-684 (Fla.1979).

We begin by noting that our principal focus is whether the appellee established below that the statute "is so vague and lacking in ascertainable standards of guilt that, as applied [to him], it failed to give 'a person of ordinary intelligence fair notice that his contemplated conduct is forbidden * * *.' " Palmer v. City of Euclid, Ohio, 402 U.S. 544, 545, 91 S.Ct. 1563, 1564, 29 L.Ed.2d 98 (1971) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954)). See also United States v. National Dairy Prods. Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 598, 9 L.Ed.2d 561 (1963) ("Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.") (emphasis added). If he failed to sustain this burden then his vagueness claim grounded on the due process clause must fail in that "[o]bjections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857, 100 L.Ed.2d 372 (1988) (emphasis added). See also State v. Hamilton, 388 So.2d 561, 562 (Fla.1980) (defendant whose conduct clearly falls within statutory prohibition may not complain of the absence of notice).

Furthermore, given the strong presumption of constitutionality which the law affords a legislative act, a statute is not "automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within [its] language." National Dairy Prods. Corp., 372 U.S. at 32, 83 S.Ct. at 597. When a person has received fair warning from a...