State v. Dinsmore, s. 44802

• Decision Date: 29 January 1975
• Docket Number: 44883,Nos. 44802,45202,s. 44802
• Citation: 308 So.2d 32
• Parties: STATE of Florida, Appellant, v. Mel J. DINSMORE, Appellee.
• Court: Florida Supreme Court

Page 32

308 So.2d 32

STATE of Florida, Appellant, v. Mel J. DINSMORE, Appellee.

Nos. 44802, 44883, 45202.

Supreme Court of Florida.

Jan. 29, 1975.

Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.

Allen P. Allweiss of Allweiss & Anderson, St. Petersburg, for appellee.

ROBERTS, Justice.

This cause is before us on consolidated direct appeals from orders of the County Court of Pinellas County holding Sections 112.313(2), 112.314(1), ¹ and 839.07, Florida Statutes, to be unconstitutional for varying reasons. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellee while mayor of the city of Pinellas Park was found by the Crand Jury to have actively concealed his business interest in a business subject to regulation by the municipality of which he was mayor. Separate indictments were handed down charging the appellee with failure to file a sworn statement of disclosure of a business interest contrary to Section 112.313(2), Florida Statutes, which is the subject of the appeal in Case No. 44,802; unlawful interest in a public contract contrary to Section 112.314(1), Florida Statutes, which is the subject of the appeal in Case No. 44,883; and unlawful interest in a public contract in violation of Section 839.07, Florida Statutes, which is the subject of appeal in Case No. 45,202.

Relative to Case No. 44,802 (failure to file a sworn statement of disclosure), appellee on November 14, 1973, filed a motion to dismiss the indictment against him on the grounds that Section 112.313(2), Florida Statutes, is unconstitutionally vague, indefinite and violates defendant's due process rights; that said statute does not adequately inform the defendant or others with reasonable precision as to what acts are prohibited; that said statute does not provide an ascertainable standard of guilt in that the statute does not provide any specific date or time in which the defendant would be obligated to file the sworn statement referred to in the indictment; and that the statute upon which the indictment is based predicates the commission of a crime upon the taking place of some future act. The trial court granted the motion to dismiss and held that Section 112.313(2), Florida Statutes, which provides:

'(2) If an officer or employee of a state agency, or of a county, city, or other political subdivision of the state, or any legislator or legislative employee is an officer, director, agent, or member of, or owns a controlling interest in any corporation, firm, partnership, or other business entity which is subject to the regulation of, or which has substantial business commitments from any state agency, county, city, or other political subdivision of the state, he shall file a sworn statement disclosing such interest with the department of state, if he is a state officer or employee, or if he is an officer or employee of a county, city, or other political subdivision of the state he shall file the sworn statement with the clerk of the circuit court of the county in which he is principally employed.' ²

is unconstitutionally vague and indefinite, specifically stating:

'However, as our Florida Supreme Court stated in finding sub section 6 of the very same statute (F.S. 112.313) unconstitutional in the case of State v. Llopis, 257 So.2d 17, 'While we acknowledge a special sympathy for legislation of this nature, which is intended to safeguard the public and insure honesty and integrity in government, our sympathy cannot be allowed to impair our judgment.' This Court is constrained to find that subsection 2 of F.S. 112.313 is unconstitutionally vague and indefinite because it fails to provide when defendant is required to file a sworn statement. The statute does not provide any specific date or time within which defendant would be obligated to file the required sworn statement and therefore, the defendant would have no way of knowing from a reading of the statute when criminal responsibility would attach by reason of his failure to so file. In plain and simple language there is no way of ascertaining when a crime has been committed. We cannot allow to stand a statute which requires the defendant to perform an act under certain enumerated circumstances but which fails to advise him within what period of time he must perform it nor can this Court provide such an essential missing element for the Legislature.'

Appellant-State appeals the order of dismissal to this Court and urges that the trial court erred in declaring Section 112.313(2), Florida Statutes, unconstitutionally vague. Appellant contends that F.S. 112.313(2) is sufficiently explicit that a man of common intelligence would not have to guess at its meaning because it merely requires the filing of a conflict of interest statement. Appellant states that the facts as set forth in the indictment alleged that from December 6, 1972, until October 12, 1973 (date of indictment) appellee did not file a statement disclosing his controlling interest in a business entity subject to regulation by the City of Pinellas Park. Appellant argues that it is implicit in F.S. 112.313(2) that the public official file a conflict of interest statement in conjunction with his taking office. Appellant submits that Section 286.012, Florida Statutes, which provides:

'Voting requirement at meetings of governmental bodies.--No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when, with respect to any such member, there is or appears to be a possible conflict of interest under the provisions of § 112.311, § 112.313, § 112.314, § 112.315 or § 112.316. In such cases said member shall comply with the disclosure requirements of § 112.313.'

Clarifies any doubts as to when a public official should file a statement of business interests.

In response to appellant's arguments, appellee relies on State v. Llopis, 257 So.2d 17 (Fla.1971), to support the order of the trial court. Therein this Court held Section 112.313(6), Florida Statutes, to be unconstitutionally vague opining, inter alia:

'Nor can the Legislature predicate a crime on future acts or contingencies or on the taking place of some future act.'

The statute involved therein provided that no officer or employee of state agency, or of county, city or other political subdivision of state or any legislator or legislative employee shall accept other employment which might impair his independence of judgment in performance of public duties.

We agree with the trial court's rationale and reliance on State v. Llopis, supra, as controlling sub judice, and we hold that Section 112.313, Florida Statutes, is unconstitutional. In State v. Llopis, supra, we approved the following language of the trial judge:

'The law of Florida is well settled that statutes penal in nature must be strictly construed according to the letter thereof. Ex parte Bailey, (39 Fla. 734,) 23 So. 552 (Fla.1897); Reynolds v. Cochran, 138 So.2d 500 (Fla.1962), reh. den. Moreover, such penal statutes are to be strictly construed In favor of the person against whom the penalty is sought to be imposed. Allure Shoe Corp. v. Lymberis, 173 So.2d 702 (Fla.1965), reh. den. Such stricture thereby places a correlative duty upon our legislators to use clear, unambiguous language in the body of every statute penal in nature.

'When exercising its power to declare an offense punishable, the Legislature must inform our citizens with reasonable percision what acts are prohibited. There must be provided an ascertainable standard of guilt, a barometer of conduct must be established, so that no person will be forced to act at his peril. Cramp v. Board of Public Instruction of Orange County, Florida, 368 U.S. 278, 83 S.Ct. 275, 7 L.Ed.2d 285; Locklin v. Pridgeon, (158 Fla. 737), 30 So.2d 102 (Fla.1947); State (ex rel. Lee) v. Buchanan, 191 So.2d (33) 336 (Fla.1966). The determination of a standard of guilt cannot be left to be supplied by courts or juries. Id. (30 So.2d) at page 103. Nor can the Legislature predicate a crime on future acts or contingencies or on the taking place of some future act. Kelly v. State, ex rel. Rosowsky, 55 So.2d 561 (Fla.1951).

'In the very well reasoned opinion of Brock v. Hardie (114 Fla. 670), 154 So. 690 (Fla.1934), our Supreme Court, in the language set out below, presented guidelines for testing the constitutional validity of a Florida statute under a question of vagueness:

". . . Whether the words of the Florida statute are sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in Cline v. Frink Dairy Co., 274 U.S. 445, (47 S.Ct. 681, 71 L.Ed. 1146), 1927, 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'''

Relative to Case No. 44,883 (transacting business in his official capacity with a business entity in which he owns a controlling interest contrary to Florida Statutes 112.314(1)), appellee, defendant, filed a motion to dismiss alleging, inter alia, that Section 112.314 is unconstitutionally vague. Holding that Section 112.314(1), Florida Statutes, which provides:

'Additional standards of conduct for officers and employees of state agencies, counties, cities, and other political subdivisions.--(1) No officer or employee of a state agency or of a county, city, or other political subdivision of the state shall transact any business in his official...