State v. Kirvin, 97-3266

Citation718 So.2d 893
Decision Date17 September 1998
Docket NumberNo. 97-3266,97-3266
Parties23 Fla. L. Weekly D2173 STATE of Florida, Appellant, v. Bobby B. KIRVIN, Auburn Jones, James Taylor, Jr., Bob Nichols, Bob N. Nichols, Daniel Carter, James Taylor, Jr. and Bob Nichols, Appellees.
CourtCourt of Appeal of Florida (US)

Robert Butterworth, Attorney General, and Jonathan A. Glogau, Assistant Attorney General, Tallahassee, for Appellant.

Douglas W. Gaidry of Watkins, Hevier and Gaidry, Apalachicola, for Appellees Kirvin and Jones.

Ronald A. Mowrey and L. William Porter, III, of Mowrey, Barrett & Minacci, P.A., Tallahassee, for Appellees Taylor, Nichols, Nichols, and Carter.

KAHN, Judge.

This case arises from criminal charges filed against the appellees because of their alleged failure to comply with provisions of article X, section 16, Florida Constitution, which places limitations on marine net fishing. 1 The county court granted appellees' motion to dismiss, finding article X, sections 16(b)(1), (b)(2), (c)(1), (c)(3), and (c)(5) unconstitutionally vague. Because we find the challenged provisions are not unconstitutionally vague, we reverse and remand this case for further proceedings. We note, however, that this case demonstrates some of the problems that arise when criminal provisions are enacted by direct plebiscite, without the benefit of debate, revision, or compromise.

I. FACTUAL BACKGROUND

On January 20, 1997, Florida Marine Patrol Officers issued citations to appellees Auburn Jones and Bobby B. Kirvin. Jones and Kirvin were observed in Apalachicola Bay (in an area known as "Eleven Mile") striking a net in a circular fashion. As Jones and Kirvin retrieved the net, mullet were observed entangled in it. The officers reported that the net measured greater than 500 square feet. The officers found two small strips of nylon webbing measuring 56 inches wide sewn into the main portion of the net. Jones and Kirvin were initially charged with violations of article X, section 16(b)(1), Florida Constitution, and section 370.08(1), Florida Statutes.

Also on January 20, 1997, appellees James Taylor, Jr., Bob Nichols, Bob Nelson Nichols, and Daniel Carter were issued citations. Taylor, Nichols, Nichols, and Carter were also observed in Apalachicola Bay (in an area known as "Thirteen Mile"). They were operating four nets and all four nets had mullet gilled and entangled in the webbing. A small piece of 2-inch mesh was on the end of each net. The officers reported that all four nets measured larger than 500 square feet. Taylor, Nichols, Nichols, and Carter were initially charged with violating article X, section 16(b)(1), Florida Constitution, and sections 370.08(1) and 370.092(3)(a), Florida Statutes.

On January 29, 1997, Taylor and Bob Nichols were again issued citations. Taylor and Nichols were observed in a boat in Rattlesnake Cove, St. George Island, going around in circles and striking two nets; mullet were caught by being gilled in the nets. According to the citations, the nets were in excess of 500 square feet. Taylor and Nichols were initially charged with violations of article X, section 16(b)(1), Florida Constitution, and sections 370.08(1) and 370.092(3)(a), Florida Statutes.

Informations were subsequently filed against all six appellees also charging them with violating article X, section 16(b)(2), Florida Constitution, for using nets in excess of 500 square feet in the nearshore and inshore waters of Florida. Appellees each filed virtually identical motions to dismiss challenging the provisions of article X, section 16(b)(1), (b)(2), (c)(1), (c)(3), and (c)(5), Florida Constitution, as unconstitutionally vague; the State filed responses to these motions. Kirvin later filed a Motion for Consolidation of Cases for Purposes of Constitutional Challenge and Order, which the court granted. A hearing took place regarding the motion to dismiss and, by order rendered June 10, 1997, the county court granted the motion. The court found the challenged provisions unconstitutionally vague in violation of appellees' rights to due process. The State has now appealed.

II. PROCEDURE AND STANDARD FOR VAGUENESS CHALLENGE

Although not specifically set forth in the motions to dismiss or in the trial court's order, the parties agree that appellees raised a facial, as opposed to an as-applied, vagueness challenge to the constitutional provisions at issue. This court recently explained the procedure for evaluating the facial validity of a statute:

[I]f a defendant brings a facial challenge to a statute based on vagueness, and if the statute in question does not implicate constitutionally protected conduct, the court must determine whether the enactment is impermissibly vague in all of its applications. The court must not entertain countless hypothetical situations in which the statute might be considered vague, but rather the court must begin by applying the enactment to the facts of the case at hand. If the statute is not vague when considered under those facts, then by definition it cannot be vague in all of its applications.

This procedure eliminates the possibility the court will make an unnecessary declaration that a statute is invalid. If a statute clearly prohibits the conduct of the defendant in the case at hand, the court need not determine whether the statute clearly prohibits all conduct that might be within its scope.... [S]tatutes should not be declared facially invalid "simply because difficulty is found in determining whether certain marginal offenses fall within their language."

Travis v. State, 700 So.2d 104, 105-06 (Fla. 1st DCA 1997) (citations omitted), review denied, 707 So.2d 1128 (Fla.1998). The court explained that although it had measured the statute at issue against the facts of the case, it had not engaged in an improper "as-applied" analysis. Id. at 106. The court further explained that, when the statute at issue does not purport to regulate any constitutionally protected activity, the constitutional analysis is the same in both a facial challenge and an as-applied challenge:

[T]he constitutional analysis is the same in this regard whether a statute is initially challenged on the ground that it is vague or whether a facially valid statute is challenged on the ground that it cannot be constitutionally applied to the defendant. In either case, the court must consider the facts.

Id. Finally, the court explained that the distinction between facial and as-applied challenges lies in the reach of the resulting court opinion:

[T]here is an important distinction between a challenge to the facial validity of a statute and a challenge to a statute as it applies to a given set of facts. When a defendant brings a vagueness challenge to a statute not implicating other constitutional rights, the court must use the facts as a starting point in the determination whether the statute is valid on its face. If the court agrees that the statute is void for vagueness, the statute cannot be applied in any case regardless of the facts. In contrast, when a defendant asserts a challenge to a statute as applied, the court must consider the facts to determine whether the statute can be fairly used to proscribe that defendant's conduct, and the result is not binding on other parties.

Id. Therefore, in determining whether the provisions at issue pass the test for facial vagueness, we must consider those provisions in light of the facts presented here.

Further, the supreme court has stated that the standard that applies in testing the validity of statutes also applies when testing the validity of constitutional provisions adopted through the initiative process. See Lane v. Chiles, 698 So.2d 260, 263 (Fla.1997) ("In most cases the rational basis standard is used to test the constitutional validity of a state statute. It follows logically that the same test would be used to determine the validity of a constitutional amendment adopted through the initiative process." (footnote omitted)). Accordingly, the test for vagueness of a constitutional provision is "whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." State v. Hagan, 387 So.2d 943, 945 (Fla.1980); see Brown v. State, 629 So.2d 841, 842 (Fla.1994) ("The standard for testing vagueness under Florida law is whether the statute gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct."); Southeastern Fisheries Ass'n v. Department of Natural Resources, 453 So.2d 1351, 1353 (Fla.1984) ("A vague statute is one that fails to give adequate notice of what conduct is prohibited and which, because of its imprecision, may also invite arbitrary and discriminatory enforcement." ); Travis, 700 So.2d at 105 ("A statute ... is unconstitutional on its face only if it is so vague that it fails to give adequate notice of any conduct that it proscribes."). In gauging the constitutionality of the provision, we bear in mind, "[i]f a constitutional amendment is a higher authority than a state statute, it stands to reason that it is entitled to an even greater degree of deference from the courts." 2 Lane, 698 So.2d at 263.

III. "GILL NETS OR OTHER ENTANGLING NETS"

We first consider the challenge to article X, sections 16(b)(1) and (c)(1), Florida Constitution. As the State asserts, these provisions are not unconstitutionally vague. Article X, section 16(b)(1) places fishermen on notice that the use of gill nets or other entangling nets is prohibited in Florida waters. Section 16(c)(1) specifically defines "gill net" and "entangling net." The terms are not so vague that persons of common intelligence must guess at their meaning. See Southeastern Fisheries, 453 So.2d at 1354. Furthermore, as with the terms at issue in Hagan and Southeastern Fisheries, the terms "gill net" and "entangling net" have definite meanings within the fishing industry. See Southeastern Fisheries, 453 So.2d at...

To continue reading

Request your trial
11 cases
  • Dept. of Rev. v. New Sea Escape Cruises
    • United States
    • Florida Supreme Court
    • February 17, 2005
    ...action, that the state's eastern seaward boundary extends three miles offshore. See art. II, § 1, Fla. Const. (2002); see also State v. Kirvin, 718 So.2d 893, 900 & n. 3. (Fla. 1st DCA 1998); State v. Efthimiadis, 690 So.2d 1320, 1321 (Fla. 4th DCA The DOR's attempt to characterize cruise-t......
  • State v. Nichols, 1D04-4287.
    • United States
    • Florida District Court of Appeals
    • February 15, 2005
    ...previously upheld the constitutional definition — which is not challenged here — against a claim of vagueness. See State v. Kirvin, 718 So.2d 893, 896-97 (Fla. 1st DCA 1998) ("We first consider the challenge to article X, sections 16(b)(1) and (c)(1), Florida Constitution. As the State asse......
  • Fla. Fish & Wildlife Conservation Comm'n v. Wakulla Fishermen's Ass'n, Inc.
    • United States
    • Florida District Court of Appeals
    • July 7, 2014
    ...use of nets greater than 500 square feet in nearshore and inshore Florida waters, were unconstitutionally vague); State v. Kirvin, 718 So.2d 893, 894 (Fla. 1st DCA 1998) (holding the provisions prohibiting use of gill nets or other entangling nets were not “unconstitutionally vague”); Pring......
  • Fla. Fish & Wildlife Conservation Comm'n v. Wakulla Fishermen's Ass'n, Inc.
    • United States
    • Florida District Court of Appeals
    • July 8, 2014
    ...use of nets greater than 500 square feet in nearshore and inshore Florida waters, were unconstitutionally vague); State v. Kirvin, 718 So. 2d 893, 894 (Fla. 1st DCA 1998) (holding the provisions prohibiting use of gill nets or other entangling nets were not "unconstitutionally vague"); Prin......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT