State v. Fleming, s. 91-1525

• Decision Date: 14 October 1992
• Docket Number: 91-2052,Nos. 91-1525,s. 91-1525
• Citation: 606 So.2d 1229
• Parties: 17 Fla. L. Weekly D2373 STATE of Florida, Appellant, v. Joseph FLEMING, Appellee.
• Court: Florida District Court of Appeals

Page 1229

606 So.2d 1229

17 Fla. L. Weekly D2373

STATE of Florida, Appellant, v. Joseph FLEMING, Appellee.

Nos. 91-1525, 91-2052.

District Court of Appeal of Florida First District.

Oct. 14, 1992.

Rehearing Denied Dec. 3, 1992.

Robert A. Butterworth, Atty. Gen., and Marilyn McFadden, Asst. Atty. Gen., Tallahassee, for appellant.

Paula S. Saunders, of Stafman & Saunders, Tallahassee, for appellee.

PER CURIAM.

The state appeals two orders granting motions to dismiss an information charging violation of section 944.47(1)(a)1 and 5, Florida Statutes. We conclude that the trial court erred in granting the motions to dismiss. We accordingly reverse and remand for further proceedings.

Fleming was employed as a cook at a state correctional institution. The arrest report states that a confidential informant- /inmate advised officers that Fleming was changing unauthorized amounts and denominations of cash for inmates. The inmate was given a twenty dollar bill, after the serial number was recorded. The inmate later informed officers that Fleming had accepted the twenty dollar bill for the purpose of changing it into legal denominations. Fleming was detained as he was departing from the facility that evening. A struggle ensued between Fleming and the officers. After Fleming was subdued, the twenty dollar bill was recovered and a box cutter was discovered.

Fleming was charged by information. Count I charged Fleming with removing contraband from a state correction institution, to-wit, currency transmitted to an inmate of the institution, in violation of section 944.47, Florida Statutes (1989). Count II charged Fleming with introducing contraband into a state correctional institution, to-wit, a weapon (box cutter), contrary to section 944.47. Fleming was also charged with violation of section 812.014(2)(d), Florida Statutes (1989), based on his possession of cheese from the institution at the time he was detained outside the facility.

Section 944.47(1), Florida Statutes (1989), provides in relevant part:

(1)(a) Except through regular channels as authorized by the officer in charge of the correctional institution, it is unlawful to introduce into or upon the grounds of any state correctional institution, or to take or attempt to take or send or attempt to send therefrom, any of the following articles which are hereby declared to be contraband for the purposes of this section, to wit:

1. Any written or recorded communication or any currency or coin given or transmitted, or intended to be given or transmitted, to any inmate of any state correctional institution.

. . . . .

5. Any firearm or weapon of any kind or any explosive substance.

. . . . .

(c) It is unlawful for any inmate of any state correctional institution or any person while upon the grounds of any state correctional institution to be in actual or constructive possession of any article or thing declared by this section to be contraband, except as authorized by the officer in charge of such correctional institution.

Fleming filed a motion to dismiss counts I and II, arguing that subsections 944.47(1)(a)1 and 5 are unconstitutionally vague and overbroad. Fleming filed a separate motion to dismiss count II, arguing that a box cutter is not a weapon within the meaning of the statute. Fleming also moved to dismiss count III of the information, arguing that once counts I and II are dismissed, only a petty theft charge would remain. He contended that the slices of cheese did not meet the jurisdictional amount for felony theft and the trial court would lack jurisdiction.

The trial court initially granted the motion to dismiss count I on the ground that the statute is unconstitutional on its face. The trial court's order provides:

Very little imagination is required to provide examples of innocent conduct that could be made unlawful by this statute. For example, a lawyer visiting a client in a state institution could be arrested for no more than possession of a legal pad, provided the pad contains some written material. And, a correctional officer could be arrested simply because he has currency in his pocket, provided someone believes the officer "intends" to give the currency to an inmate.

The trial court declined to dismiss count II because the statute was constitutionally valid on its face and because there was no evidentiary basis to find it unconstitutional as applied.

Fleming then filed an amended motion to dismiss count II, in which he asserted that he had left the box cutter in his pocket upon leaving his second job at a grocery store. He asserted that he did not brandish the box cutter or use it in a threatening manner, but that it remained in his pocket at all times. After a hearing, the trial court dismissed count II. The trial court stated there was no evidence, direct or circumstantial, which could lead a jury to infer that the box cutter was intended to be used as a weapon.

The state first seeks reversal of the order dismissing count I on the ground that section 944.47(1)(a)1 is unconstitutionally vague. The state argues that the statute clearly describes the conduct and contraband prohibited and that no person of common intelligence needs to guess what acts are prohibited. Our decision regarding this issue is controlled by the decision in State v. Olson, 586 So.2d 1239 (Fla. 1st DCA 1991).

In Olson, an inmate passed some pieces of paper with writing on them to a reporter. The reporter refused to surrender the papers and was later arrested and charged with violation of section 951.22, Florida Statutes. ¹ The trial court found the statute to be unconstitutionally vague, stating: "On its face, the statute in question would prevent the mere possession of a newspaper, driver's license, legal pleading, or other written document by anyone at the jail, including an attorney visiting a client, a physician treating a sick inmate or a judge conducting first appearance hearings.... The State in enacting an overbroad statute which outlaws all written communications has made wholly innocent conduct the subject of criminal prosecution. This statute as promulgated does not contain language sufficiently and reasonably definite to fairly apprise the citizens of the State of Florida as to what conduct is or is not prohibited." Id. at 1241, 1242 n. 4 (emphasis in original).

The judgment was reversed on appeal. The majority rejected the argument that the statute was unconstitutionally vague:

We frankly find nothing at all in the appellee's contention that there is anything vague about the portion of 951.22 she allegedly violated. Certainly, no person "of common intelligence" needs to guess at the fact that, when the statute says that one may not receive any "written communication" "from any inmate" "except through regular channels as duly authorized by the sheriff," it means just that and that the conduct which forms the basis of this case is unambiguously described by that provision.

(Footnote omitted; citation omitted). The majority noted:

[W]e do not consider the propriety of a prosecution for any of the numerous fact patterns which might arise under other alternative additional portions of the statute, including some of the horribles, as paraded by the appellee, which seem to have frightened the trial judge. We may say, however, that ordinary rules of construction which require that a statute be read so as to avoid unconstitutional results, and absurd ones, would preclude any determination that it would be a felony for a visitor to carry a personal letter or a five dollar bill in his pocket or, indeed, to wear clothing while at a jail. See State v. Hardee, 504 So.2d 33 (Fla. 1st DCA 198...