State v. DuFresne

• Decision Date: 24 January 2001
• Docket Number: No. 4D99-1375.,4D99-1375.
• Citation: 782 So.2d 888
• Parties: STATE of Florida, Appellant, v. Francis DuFRESNE, Appellee.
• Court: Florida District Court of Appeals

782 So.2d 888

STATE of Florida, Appellant, v. Francis DuFRESNE, Appellee.

No. 4D99-1375.

District Court of Appeal of Florida, Fourth District.

January 24, 2001.

Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez Orosa, Assistant Attorney General, West Palm Beach, for appellant.

Michael Dubiner and Mark Wilensky of Dubiner & Wilensky, P.A., West Palm Beach, for appellee.

PER CURIAM.

We filed our original opinion in this case on September 13, 2000. In that opinion we held that because the term "mental injury" was undefined, a statute making it a felony to commit an intentional act which could reasonably be expected to result in mental injury to a child was unconstitutionally vague. The next day the Florida Supreme Court issued State v. Fuchs, 769 So.2d 1006 (Fla.2000). In Fuchs the court held that a penal statute which failed to define "delinquent," "dependent child," or "child in need of services" was not unconstitutionally vague, because definitions for those terms could be found in other statutes. We then withdrew our opinion on September 14, 2000, and asked the parties to file supplemental briefs addressing Fuchs. The opinion which follows includes much of our original opinion, and then addresses Fuchs.

Florida's child abuse statute makes it a felony to commit an intentional act which could reasonably be expected to result in "mental injury" to a child. The trial court held the statute unconstitutional as being both overbroad and vague. We conclude that the statute is not facially invalid under the overbreadth doctrine, because it can be narrowly construed so that it does not apply to speech. Although we originally agreed with the trial court that the statute was vague, Fuchs requires a different result.

Appellee, a public school teacher who works with autistic children, was charged with five counts of child abuse involving different children, contrary to section 827.03, Florida Statutes (Supp.1996), which provides:

Abuse, aggravated abuse, and neglect of a child; penalties.—

(1)"Child abuse" means:

(a) Intentional infliction of physical or mental injury upon a child;

(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or

(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child.

A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree,

. . .

[Emphasis added.]

Appellee filed a motion for statement of particulars to which the state responded as follows:

1. That as to Count I involving K.E., the act alleged is force-feeding;

2. That as to Count II involving Su.A. is slapping and/or screaming at and/or telling Su.A. that she is "bad";

3. That as to Count III involving J.G.C., the act alleged is slapping and/or striking;

4. That as to Count IV involving E.A. the act alleged is force-feeding 5. That as to Count V involving Sh.A., the act alleged is screaming at Sh.A. because he was touching his genital area and/or screaming at Sh.A. to go to the bathroom.(R25)

Appellee then moved to dismiss, arguing that the statute was unconstitutionally overbroad because it applied to speech protected by the First Amendment and was unconstitutionally vague because "mental injury" was not defined. At the hearing on the motion the state conceded that there was no evidence of any physical injuries caused by appellee. It was the state's position that the appellee could be convicted of felony child abuse for humiliating a child.

The trial court held the statute unconstitutional as being both overbroad and vague based on the same reasoning. However, as the Florida Supreme Court explained in Southeastern Fisheries Ass'n v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla.1984):

Too often, courts and lawyers use the terms "overbroad" and "vague" interchangeably. It should be understood that the doctrines of overbreadth and vagueness are separate and distinct. The overbreadth doctrine applies only if the legislation "is susceptible of application to conduct protected by the First Amendment." Carricarte v. State, 384 So.2d 1261, 1262 (Fla.), cert. denied, 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980)(citing Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970)).

Overbreadth

The Florida Supreme Court explained the overbreadth doctrine in Wyche v. State, 619 So.2d 231, 235 (Fla.1993):

When legislation is drafted so that it may be applied to conduct that is protected by the First Amendment, it is said to be unconstitutionally overbroad. See Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla.1984). This overbreadth doctrine permits an individual whose own speech or conduct may be prohibited to challenge an enactment facially "because it also threatens others not before the court-those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). [footnote omitted.]

In this case some of the counts are based solely on oral statements. Section 827.03(1)(b) is, accordingly, being used to prosecute conduct protected by the First Amendment. Schmitt v. State, 590 So.2d 404, 412 (Fla.1991)("Application of the overbreadth doctrine is particularly appropriate where ... the statute clearly infringes upon protected forms of free speech.").

It does not automatically follow, however, that the statute is facially invalid. A statute is facially invalid as overbroad only if it "reaches a substantial amount of constitutionally protected conduct." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). In Doe v. Mortham, 708 So.2d 929, 931 (Fla.1998), the Florida Supreme Court, explaining that courts should attempt to narrowly construe statutes before holding them facially invalid as overbroad, quoted from Broadrick v. Oklahoma, 413 U.S. 601, 616, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973):

It remains a "matter of no little difficulty" to determine when a law may properly be held void on its face and when "such summary action" is inappropriate.

But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function [is a] limited [one].... To put the matter another way ... we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that [the Oklahoma statute] is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.

If a statute which punishes protected speech can be narrowly construed so as to avoid its application to speech, the statute can withstand an overbreadth challenge. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Doe.¹

The state's interest in protecting children from physical abuse, which is the primary purpose behind the statute involved in this case, is compelling. Any constitutionally protected conduct which could be prosecuted under this statute is insubstantial, compared to the other types of conduct to which the statute is directed. We conclude, as our supreme court did with the election laws involved in Doe, that this statute is not substantially overbroad and can be upheld against an overbreadth argument by narrowly construing it as not applicable to speech.

Vagueness

Our limitation of section 827.03 so that it is not applicable to speech does not resolve all of the issues in this case, because two of the counts in this case charged appellee with "force feeding," and two other counts charged appellee with "slapping" or "striking." The state acknowledged to the trial court that it had no proof of physical injuries caused by this conduct and that it was relying solely on mental injury. The trial court held the term "mental injury" unconstitutionally vague.

A statute is vague if it "fails to give adequate notice of what conduct is prohibited." S.E. Fisheries, 453 So.2d at 1353. Penal statutes which are vague violate the due process clause of the United States Constitution. Id. One of the purposes of due process is to make sure that no person is convicted unless a fair warning has first been given "in language that the common world will understand, of what the law intends to do if a certain line is passed." McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1931); Mourning v. Family Publ'ns Serv., Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973).

Appellee contends, and the trial court found, that the term "mental injury," which is not defined in the statute, is unconstitutionally vague. As Judge Oftedal explained in the order under review:

Were the statute limited to the expectation of physical injury, it might pass constitutional muster. But to require ordinary persons to be knowledgeable as to the likelihood of whether their words or actions would result in "mental injury" asks too much. There are no statutory guidelines regarding such conduct and the term "mental injury" is left undefined. While the legislature certainly has the authority and indeed, the duty, to prohibit and punish child abuse "it must do so with a reasonable precision that does not simultaneously outlaw innocent conduct and the normal incidents of home-life." Schmitt [v. State, 590 So.2d 404, 413 (Fla.1991) ].

The statute as amended could possibly subject all those parents who ever called their children "stupid" or other less

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