State v. Freund, 89-454

Decision Date13 February 1990
Docket NumberNo. 89-454,89-454
Citation561 So.2d 305
Parties15 Fla. L. Weekly D422 The STATE of Florida, Petitioner, v. Donald Matthew FREUND, Respondent.
CourtFlorida District Court of Appeals

Robert A. Butterworth, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for petitioner.

Mel Black, Miami, for respondent.

Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.

PER CURIAM.

Donald Matthew Freund was arrested and charged with reckless driving 1 and possession of alcoholic beverages by a person under the age of twenty-one in violation of section 562.111, Florida Statutes (1987). At trial, the county court dismissed the alcohol possession charge on a finding that section 562.111 was unconstitutional. On appeal, the circuit court, sitting in its appellate capacity, affirmed. The State seeks review here by petition for certiorari.

Addressing first a procedural issue, we hold that the circuit court had no subject matter jurisdiction to review a judgment of the county court declaring a state statute unconstitutional. § 26.012(1), Fla.Stat. (1987) (circuit courts shall have jurisdiction of appeals from county courts except appeals of orders or judgments declaring invalid a state statute). The circuit court proceeding is, therefore, nullified 2 and the appeal there is treated as a timely appeal to this court. 3

In an arrest affidavit, a police officer averred that he chased and arrested Freund for attempting to force another vehicle off the road. After Freund was apprehended, the officer looked into his automobile and saw several opened and empty beer bottles with beer spilled on the front seat and floorboard. Freund, a person under the age of twenty-one, was charged with the illegal possession of alcoholic beverages in violation of section 562.111, Florida Statutes (1987), which provides:

Possession of alcoholic beverages by persons under age 21 prohibited.--It is unlawful for any person under the age of 21 years, except a person employed under the provisions of s. 562.13 acting in the scope of his employment, to have in his possession alcoholic beverages, except that nothing herein contained shall preclude the employment of any person 18 years of age or older in the sale, preparation, or service of alcoholic beverages in licensed premises in any establishment licensed by the Division of Alcoholic Beverages and Tobacco or the Division of Hotels and Restaurants....

Freund argued in the county court that the statute, as written, would also make it unlawful for a child to carry a mother's groceries out to the car if one bottle of beer was in the grocery bag. The trial judge agreed that the statute could be found vague or overbroad under those circumstances. In granting the defendant's ore tenus motion to dismiss the court held, by a written order, that section 562.111 is "so vague in its terms and so unconstitutionally broad that it criminalizes conduct that virtually every person would regard as lawful." We disagree and reverse.

A statute is void for vagueness if it fails "to convey sufficiently definite notice of what conduct is proscribed." State v. Gray, 435 So.2d 816, 819 (Fla.1983). The conduct clearly proscribed by section 562.111 is possession of alcoholic beverages by a person under the age of twenty-one, except in specified circumstances. The second part of the inquiry is whether the possession of intoxicating beverages may be constitutionally regulated by the state's police powers--a question that has been answered affirmatively in a series of cases. See e.g., State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947) (possession of liquor may be regulated by statute); Republican College Council of Pa. v. Winner, 357 F.Supp. 739 (E.D.Pa.1973) (statutes prohibiting possession of alcoholic beverages by minors do not violate constitutional privileges).

Freund's overbreadth argument is also without merit. A statute is not overbroad unless it "reaches a substantial amount of constitutionally protected conduct." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). More particularly, the Florida supreme court has held that "the overbreadth doctrine applies only if legislation is susceptible of application to conduct protected by the First Amendment." Southeastern Fisheries Ass'n, Inc. v. Department of Natural Resources, 453 So.2d 1351 (Fla.1984).

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6 cases
  • State v. Hoyt, 91-02415
    • United States
    • Florida District Court of Appeals
    • 7 Diciembre 1992
    ... ... Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla.1984); State v ... Freund, 561 So.2d 305, 306 (Fla. 3d DCA 1990); State v. Burch, 545 So.2d 279, 281 (Fla. 4th DCA 1989), approved, Burch v. State, 558 So.2d 1 (Fla.1990) ... ...
  • State v. Coyle, 96-04073
    • United States
    • Florida District Court of Appeals
    • 31 Julio 1998
    ...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 7......
  • Espirito Santo Bank of Florida v. Green Hills Southland Pines Community Ass'n, Inc.
    • United States
    • Florida District Court of Appeals
    • 17 Julio 1990
    ...attempting to show, in a separate evidentiary hearing, that the covenant is discriminatory in intent or impact. See State v. Freund, 561 So.2d 305 (Fla. 3d DCA 1990) (application of a law need not be addressed since the question was not presented by the facts of the case). We do not reach t......
  • State v. Burdette, 2D01-3981.
    • United States
    • Florida District Court of Appeals
    • 4 Octubre 2002
    ...declared a state statute unconstitutional, we have jurisdiction. See State v. Coyle, 718 So.2d 218 (Fla. 2d DCA 1998); State v. Freund, 561 So.2d 305 (Fla. 3d DCA 1990). ...
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