State v. Lindsay

• Decision Date: 24 October 1973
• Docket Number: No. 42829,42829
• Citation: 284 So.2d 377
• Parties: STATE of Florida, Appellant, v. Earl L. LINDSAY, Appellee.
• Court: Florida Supreme Court

Page 377

284 So.2d 377

STATE of Florida, Appellant, v. Earl L. LINDSAY, Appellee.

No. 42829.

Supreme Court of Florida.

Oct. 24, 1973.

Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellant.

Rick B. Levinson, Tampa, for appellee.

ROBERTS, Justice.

This appeal has been transferred to us by the Circuit Court of Hillsborough County, pursuant to Florida Appellate Rules 2.1a. (5)(d) and 2.1a. (5)(a), 32 F.S.A., to review the order of the magistrate's court of the County of Hillsborough dismissing criminal charges against the appellee and directly passing upon the validity of Florida Statutes, Section 828.19, F.S.A., thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution, as amended 1973, F.S.A.

Appellee was informed against for contributing to the delinquency of a minor in violation of Florida Statutes, Section 828.19, in that on the 6th day of June, 1972, in Hillsborough County, he 'did unlawfully cause and encourage Mary Jo Foster, a female child of the age of sixteen (16) to become delinquent by having unlawful sexual intercourse with the said Mary Jo Foster.'

Appellee filed a motion to dismiss the information on the grounds that Florida Statutes (1971), Section 828.19, F.S.A. is unconstitutional as overbroad and void for vagueness. This statute provides, as follows:

'In all cases where any child shall be a dependent or delinquent child, as defined under the laws of Florida, any person who shall by any act encourage, cause, or contribute to the dependency or delinquency of such child, and any parent or legal guardian of such child who shall by neglect of duty as such parent or legal guardian encourage, cause, or contribute to the dependency or delinquency of such child, is guilty of a misdemeanor of the farst degree, punishable as provided in § 775.082 or § 775.083; provided the court may suspend sentence for a violation of the provisions of this section and impose conditions as to the conduct, in the premises, of any person so convicted, and made suspension to depend upon the fulfillment by the person of the conditions, and in case of the breach of any conditions, the court may impose sentence as though there had been no suspension. The court may as a condition of suspension, require a bond in such sum as the court may designate, to be approved by the judge requiring the same, to secure the performance by the person of the conditions placed by the court on the suspension; such bond shall by its terms be made payable to the state, and any moneys received for a breach of this or any other section of this chapter shall be paid into the county treasury to the credit of the fine and forfeiture fund or maintenance of children under chapter 39.'

The trial judge in dismissing the charge ruled:

'This cause having come on to be heard upon the Defendant's Motion to Dismiss, and the Court being fully advised in the premises and having given careful and due consideration, hereby passes directly upon the validity of Section 828.19 Florida Statutes (1971), and is of the opinion that Section 828.19 Florida Statutes (1971) is unconstitutional, void and of no force or effect because it is vague on its face as it contains no standards by which a Judge or jury can determine guilt, and is therefore an unconstitutional delegation of legislative power to the Judge and jury, as the case may be, in violation of the 5th and 14th Amendments of the Constitution of the United States of America, State v. Hodges (254 Or. 21) 457 P.2d 491 (Oregon 1969), State v. Whitted (254 Or. 31) 457 P.2d 495 (Oregon 1969).'

The aforestated statute provides that the definition for delinquent child should be derived from the general laws of Florida. Florida Statutes (1972), Section 39.01(11), ¹ defines delinguent child, as follows:

'(11) 'Delinquent Child' means a child who commits a violation of law, regardless of where the violation occurred, except a child who commits a juvenile traffic offense and whose case has not been transferred to the juvenile court by the court having jurisdiction.'

Section 39.01(13)(a), (b), Florida Statutes (1972), F.S.A., defines violation of the law, as follows:

'(13) (a) 'Violation of law' means violation of any law of the United States, the state, or another state within the United States or a city or town ordinance of a city or town within the United states.'

'(b) 'Federal law' means a law of the United States.'

'Child' is defined by Section 39.01 to mean:

'. . . any married or unmarried person under the age of seventeen years, or any person who is charged with a violation of law occurring prior to the time that person reached the age of seventeen years.'

We disagree with the trial court and find that the statutory provision in question is neither impermissibly vague nor unnecessarily overbroad. The test of vagueness of a statute is whether the language of the statute conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. Zachary v. State, 269 So.2d 669 (Fla.1972), Newman v. Carson, 280 So.2d 426 (Fla.1973). This Court in Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 884 (Fla.1972) opined that to make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. The statute must gave reasonable notice that a person's conduct is restricted by the statute. Papachristou et al. v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). This Court in its very recent opinion of Newman v. Carson, supra, quoted the following definitive language from Brock v. Hardie, 114 Fla. 670, 154 So. 690, 694 (1934):

'Whether the words of the Florida statute are sufficiently explicit to informthose who are subject to its provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in the opinion obove mentioned, 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'

'Such seems to be the test approved by the Supreme Court of the United States. Citation of authorities as to what may be considered the exact meaning of the phrase 'so vague that men of common intelligence must necessarily guess at its meaning,' so that certain conduct may be considered within or outside the true meaning of that phrase, or what language of a statute may lie within or without it, would be of little aid to us.

'We must apply our own knowledge with which observation and experience have supplied us to determining whether words employed by the statute are reasonably clear or not in indicating the legislative purpose, so that a person who may be liable to the penalties of the act may know that he is within its provisions or not.'

In considering the constitutionality vel non of a Jacksonville vagrancy oridnance the Supreme Court of the United States made a recent pronouncement on the standard to be employed to determine vagueness and overbreadth of a statute. That court stated in Papachristou et al. v. City of Jacksonville, supra, at 162--163 of 405 U.S. at 843--844 of 92 S.Ct., the following:

'This ordinance is void for vagueness, both in the sence that it 'fails to gave a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,' United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989, and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

'Living under a rule of law entails various suppositions, one of which is that '(all persons) are entitled to be informed as to what the State commands or forbids.' Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.

'The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent.'

The statute presently in question before this Court provides persons with notice of the prohibited acts and is not so broad that it would lead to arbitrary and erratic arrests and convictions. This statute does not purport to punish conduct which by modern standards would be considered innocent.

This Court has previously examined the constitutionality vel non of Section 828.19, Florida Satutes (1959), ² F.S.A. in 1960 in its decision of State v. Barone, 124 So.2d 490, wherein this Court held that this statute was Not unconstitutionally vague. Section 828.19 (1...