State v. Coyle, 96-04073

• Decision Date: 31 July 1998
• Docket Number: No. 96-04073,96-04073
• Citation: 718 So.2d 218
• Parties: 23 Fla. L. Weekly D1820 STATE of Florida, Appellant, v. Tiffany Cara COYLE and Cherry Che Flatley, Appellees.
• Court: Florida District Court of Appeals

Page 218

718 So.2d 218

23 Fla. L. Weekly D1820

STATE of Florida, Appellant, v. Tiffany Cara COYLE and Cherry Che Flatley, Appellees.

No. 96-04073.

District Court of Appeal of Florida Second District.

July 31, 1998.

Rehearing Denied Sept. 30, 1998.

Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellant.

Luke Charles Lirot of Luke Charles Lirot, P.A., Tampa, for Appellees.

PER CURIAM.

This case presents the issue of whether section 798.02, Florida Statutes (1995), is unconstitutionally vague. Based on prior case law defining and discussing the terms "lewd" and "lascivious," we conclude that the statute is not void for vagueness. Accordingly, we reverse the decision of the trial court.

For purposes of this opinion, the facts can be briefly stated. At 10:00 p.m. on December 7, 1995, Tiffany Cara Coyle and Cherry Che Flatley were performing their own unique form of entertainment on the stage of a licensed adult club in Tampa. At 10:10 p.m. on the same night, two Tampa undercover police officers arrested Coyle and Flatley. The women were charged with second-degree misdemeanors for "open and gross lewd and lascivious behavior" in violation of section 798.02.

After moving to consolidate, Coyle and Flatley filed a motion to dismiss the charges, which included a claim that the statute was unconstitutionally vague. The trial court agreed and granted the motion to dismiss, which the State now appeals to this court. Because the county court declared a state statute unconstitutional, we have jurisdiction. See State v. Freund, 561 So.2d 305 (Fla. 3d DCA 1990).

Chapter 798, Florida Statutes, is entitled "Adultery; Cohabitation." There are only two sections in this chapter. Section 798.02 reads:

Lewd and lascivious behavior.--If any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

§ 798.02 (emphasis added). Coyle and Flatley were alleged to have violated the second portion of the statute, highlighted above. Although not defined in chapter 798, the words "lewd" and "lascivious" have been defined in cases interpreting this and similar statutes. In Chesebrough v. State, 255 So.2d 675, 677 (Fla.1971), the Florida Supreme Court upheld the constitutionality of section 800.04, Florida Statutes, a statute which proscribed a lewd and lascivious act in the presence of a child. Even though section 800.04 did not contain definitions of lewd and lascivious, the supreme court held:

"Lewd" and "lascivious" are words in common use, and the definitions indicate with reasonable certainty the character of the acts and conduct which the Legislature intended to prohibit and punish, so that a person of ordinary under-standing may know what conduct on his part is condemned.

Lewdness may be defined as the unlawful indulgence of lust, signifying that form of immorality which has a relation to sexual impurity. It is generally used to indicate gross indecency with respect to the sexual relations.

255 So.2d at 677 (citations omitted).

Five years after Chesebrough, the Florida Supreme Court reversed a conviction under section 798.02, the statute at issue in this case. See Campbell v. State, 331 So.2d 289 (Fla.1976). Because the supreme court concluded that Campbell's conduct was not "extremely indecent, immoral and offensive," and thus did not fall within the purview of the statute, the court reversed the conviction without reaching the issue of the statute's constitutionality. ¹ 331 So.2d at 290. In a concurring opinion, Justice England wrote that he would not only reverse the conviction but would also declare the statute unconstitutionally vague. He was not joined in his concurrence, however, and two justices signed on to a dissenting opinion that defended the statute as constitutional. Furthermore, although Justice England urged the...