State v. Fuchs, 98-2508.

• Decision Date: 08 October 1999
• Docket Number: No. 98-2508.,98-2508.
• Parties: STATE of Florida, Appellant, v. Gwendolyn FUCHS, Appellee.
• Court: Florida District Court of Appeals

751 So.2d 603

STATE of Florida, Appellant, v. Gwendolyn FUCHS, Appellee.

No. 98-2508.

District Court of Appeal of Florida, Fifth District.

October 8, 1999.

Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for appellant.

James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for appellee.

GRIFFIN, J.

The State of Florida seeks review of an order granting Gwendolyn Fuchs' motion to dismiss the information charging her with three misdemeanor violations of section 827.03, Florida Statutes (1997). The trial court declared the statute unconstitutionally vague and certified the constitutional issue as a question of great public importance. We have jurisdiction.¹

The facts out of which the constitutional issue arose are as follows. On April 7, 1998 at approximately 8:55 p.m., Osceola County police officer Thomas Forehand received an anonymous phone call from a concerned neighbor regarding an eleven year-old boy being left home alone with his four and five year-old sisters.

Forehand went to the location and spoke with the eleven year-old boy, Joshua Fuchs, who stated that his mother, Gwendolyn Fuchs, had gone to pick up her boyfriend and would be back soon. She did not leave a telephone number and there was no telephone in the house. Officer Forehand called Joshua's grandfather who stated he would come over if his daughter did not return. Forehand also spoke with the anonymous neighbor who told Forehand that Fuchs often came home after 2:00 a.m. The neighbor agreed to watch the children until Fuchs returned.

Officer Forehand returned to the home at 11:00 p.m. and Fuchs was still not home. Joshua informed him that his grandfather was on his way over. Mr. Fuchs then arrived and the children were left in his custody. Officer Forehand, however, responded to the residence at 4:20 a.m. after receiving a complaint that Mr. Fuchs had left and the children were alone. Forehand spoke with Joshua who stated that his mother's boyfriend, Thomas Greene, was asleep in the house. Greene told Forehand that he and Fuchs were at a bar, Calico Jacks, in Kissimmee where Fuchs was arrested on another charge. Greene returned to the house to watch the children.

Based on these facts, Fuchs was arrested for child abuse pursuant to section 827.03, Florida Statutes. The arresting officer stated: "It is conceivable that in the extended period of time the children were alone without adult supervision that something could have happened to the children." The State, however, charged Fuchs with three misdemeanor counts of contributing to the delinquency or dependency of a minor in violation of section 827.04(1)(a), Florida Statutes. The information alleged that Fuchs committed "an act which caused, tended to cause, encouraged or contributed to ... a child under 18 years of age, becoming a delinquent or dependent child or a child in need of services by leaving [the child] home alone without supervision."

Fuchs filed a motion to dismiss the information on the ground that section 827.04(1)(a), Florida Statutes (Supp.1996), was unconstitutionally vague in that the prohibited conduct or standard of conduct of an accused is not defined. Principally, Fuchs complained that the terms "delinquent," "dependent child," and "child in need of services" were not defined in the statute.

The county court granted the defendant's motion finding that prior case law construing predecessor statutes had relied on the phrase "under the laws of Florida"² in finding the statute constitutional, but the reference to the "laws of Florida" was deleted in 1996. The lower court concluded that the statute was impermissibly vague since the terms "delinquent or dependent" or "child in need of services" lacked ordinary meaning:

In the instant case, the Defendant points to the fact that Section 827.04(1)(a) fails to define the terms "delinquent or dependent child" and "child in need of services." Notably, prior to its amendment, the statute defined the terms "delinquent" and "dependent" child by cross reference in the statute provided "[i]n all cases where any child shall be a dependent or delinquent child, as defined under the laws of Florida," ... and the Court applied the statutory definition of the term "delinquent child" as found in Chapter 39 of Florida Statutes.

The State's position is that well established principles of construing statutes require the Court to look to earlier enactments to determine the intent and meaning of the words ... Thus, this Court, in order to determine the meaning of the terms "delinquent or dependent child" and "child in need of services," would first look to Section 827.04(1)(a) prior to its amendment to know that those terms are to be defined as they are in Chapter 984 and 985 (formerly Chapter 39). Additionally, the Court could look to the common usage of the terms to determine their meanings. The Defendant argues that the Legislature has had ample time to amend the current revision of the statute to add the language "as defined under the laws of the state" to provide for a definition of the terms in the statute itself.

Moreover, the terms "delinquent" or "dependent" child or "child in need of services" are terms of art which are not common enough to be understood by persons as to provide a reasonable warning of the behavior proscribed by Section 827.[4](1)(a), Florida Statutes (Supp. 1996).

The terms "delinquent" or "dependent child" or "child in need of services" are terms of art which are not common enough to be understood by persons so as to provide a reasonable warning of the behavior prescribed by Section 827.04, Florida Statutes (Supp.1996). For example, arguabl[y] "delinquent" has a common understanding to mean something is late or tardy, "dependent child" has a common understanding of something to do with claiming an exemption on a U.S. Income Tax Return or with determining the amount of federal income tax withheld or applying for public assistance, and "child in need of services" can range from special programs in the public school system to the unknown.

The court then certified the following question as one of great public importance:

WHETHER FLORIDA STATUTE 827.04(1)(a) IS UNCONSTITUTIONALLY VAGUE IN THAT THE PROHIBITED CONDUCT, OMISSIONS AND OR STANDARD OF CONDUCT OF AN ACCUSED IS NOT DEFINED AND THE STATUTE FAILS TO DEFINE THE TERMS "DELINQUENT," OR "DEPENDENT CHILD" OR "CHILD IN NEED OF SERVICES."

We answer the certified question in the affirmative and approve the decision below. Section 827.04(1)(a), Florida Statutes (1997), "Contributing to the Delinquency or Dependency of a Child" provides:

(1) Any person who:

(a) Commits any act which causes, tends to cause, encourages, or contributes to a child becoming a delinquent or dependent child or a child in need of services;

* * * * * *

commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

The trial court found that the statute failed to delineate to a person of ordinary intelligence the criminal conduct prohibited by the statute because the terms "delinquent or dependent child" and "child in need of services" were not defined. These terms are, however, described to greater or lesser degree in chapters 39, 984 and 985 of the Florida Statutes. For example, section 985.03(9), Florida Statutes (1997), defines a "child who has been found to have committed a delinquent act":

(9) "Child who has been found to have committed a delinquent act" means a child who, pursuant to the provisions of this chapter, is found by a court to have committed a violation of law or to be in direct or indirect contempt of court, except that this definition shall not include an act constituting contempt of court arising out of a dependency proceeding or a proceeding pursuant to part III of this chapter.

Section 984.03(11) similarly provides:

(11) "Child who has been found to have committed a delinquent act" means a child who, pursuant to the provisions of chapter 985, is found by a court to have committed a violation of law or to be in direct or indirect contempt of court, except that this definition shall not include an act constituting contempt of court arising out of a dependency proceeding or a proceeding pursuant to this chapter.³

There is little doubt that these terms in section 827.04(1) are intended to be understood as terms of art as described in Chapters 39, 984 and 985 and not in the ordinary way these words are sometimes used. The problem is that a penal statute either must define any terms that do not have an ordinary meaning or, at least, must specify a source to find a definition for these terms so that ordinary persons are not left to guess at the statute's meaning or differ as to its application. Bouters v. State, 659 So.2d 235, 238 (Fla.),quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926),

cert. denied, 516 U.S. 894, 116 S.Ct. 245, 133 L.Ed.2d 171 (1995). As referenced by the trial court, the ordinary meaning of "delinquent" and "dependent" when used to modify "child" can give different and broader meanings than what is contained in Chapters 39, 984 and 985. Similarly, the phrase "child in need of services" is almost meaningless without reference to these statutes. Yet, there is no allusion to a statutory source for the meaning of these terms in section 827.04(1).

The trial court noted that, prior to its amendment in 1996, section 827.04(1)(a) used to include the phrase "under the laws of Florida." The previous statute, section 827.04(3), Florida Statutes (1995), provided:

(3) Any person who commits any act which thereby causes or tends to cause or encourage any person under the age of 18 years to become a delinquent or dependent child or a child in need of services, as defined under the laws of Florida, or which contributes thereto, or any person who shall, by act, threats,

...