State v. Magee
| Decision Date | 16 February 1972 |
| Docket Number | 41206,Nos. 41198,s. 41198 |
| Citation | 259 So.2d 139 |
| Parties | STATE of Florida, Appellant, v. Coleen Marie MAGEE, Appellee. STATE of Florida, Plaintiff-Appellant, v. Michael Joseph NUNZIATA, Defendant-Appellee. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Nelson E. Bailey, Asst. Atty. Gen., for appellant.
Joe Teague Caruso, of Spielvogel, Goldman & Caruso, Merritt Island, for appellee Coleen Marie Magee.
The State appeals the trial court's dismissals of charges on the express ground that a portion of Fla.Stat. § 877.03, F.S.A., was unconstitutional and void for vagueness. 1 Jurisdiction vests on the constitutional question under Fla.Const. art. V, § 4(2), F.S.A. No briefs are filed or appearances made for Respondent Nunziata.
The verbage of the statute ruled unconstitutional by the trial judge reads as follows:
'Whoever commits such acts as are of a nature to corrupt the public morals or outrage the sense of public decency, . . .'
This language lacks, says the trial judge, that definiteness and certainty required to establish standards that convey to the average citizen of common understanding a warning of what conduct is proscribed by the statute. We find that the language does meet the test of common understanding, 2 is constitutional and reverse.
Smith v. State, 237 So.2d 139 (Fla.1970), discusses the subject of vagueness of such statutes and points out that not every detail is required to be set forth in such a statute so long as the prohibitive conduct is in such language that it is understood by the average citizen. The terms 'public decency' and 'corrupt the public morals' are terms of general understanding such as 'lewd and lascivious', Chesebrough v. State, 255 So.2d 675 (Fla.1971); 'unnecessarily or excessively chastise', Campbell v. State, 240 So.2d 298 (Fla.1970), and 'driving while under the influence of intoxicating liquor . . . to the extent that his normal facilities are impaired . . ..' McArthur v. State, 191 So.2d 429 (Fla.1966). Under such generally understood language, the specific conduct will of course vary and is made fully known to a defendant in the charges filed against him, so that he is made aware against what conduct he must defend. This is of course required to constitute a sufficient charge. 3
Here, the appellees were observed by police in the very act of intimate relations in an automobile. Appellee Michael Nunziata is charged with 'lying on front seat of car with his pants pulled down and his penis in plain view from exterior of car. . . .' Appellee Coleen Magee was charged with 'lying on front seat of car with her pants down and her buttocks exposed . . ..'
Such exposure before the public is clearly calculated to corrupt the public morals and outrage the sense of public decency which is prohibited by the statute and any person of common intelligence would be perfectly aware that it was.
Since the cause is remanded solely on the constitutional issue, we of course do not reach the factual question which may be involved as later presented before the trial court for its determination on the facts.
We hold Fla.Stat. § 877.03, F.S.A., to be constitutional. The judgments and orders of the trial court in each of the two cases are hereby reversed and the causes are remanded for trial.
It is so ordered.
ERVIN, J., concurs specially with opinion.
I agree only to the conclusion that the statute is not unconstitutional on its face. I believe it is declaratory of the common law and would only apply it in those situations where the common law is violated. Compare concurring opinion of Chief Justice Roberts in Franklin and Joyce v. State, Fla., 257 So.2d 21, 1971. I would remand the cause...
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South Florida Free Beaches v. City of Miami, Fla., Civ. A. No. 82-1071-Civ-CA.
...topless sunbathing was squarely within the scope of conduct prohibited by the statute and relying on its previous ruling in State v. Magee, 259 So.2d 139 (Fla.1972) that the statute was not vague. In Magee, supra, the Florida court had stated that "public decency" and "corrupt the public mo......
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State v. Saunders
...as Section 775.011, Florida Statutes (1975), the provisions of Section 776.051 are not applicable in the present case.3 In State v. Magee, 259 So.2d 139 (Fla.1972), this Court affirmed a conviction under Section 877.03 for fornication in the front seat of an automobile and 'h(e)ld Fla.Stat.......
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Wiegand v. Seaver
...remedies would be futile in light of the Florida Supreme Court's recent decision upholding the facial validity of F.S. 877.03, State v. Magee, 259 So.2d 139 (Fla.1972). The state expressly agreed that state appellate review would be futile in its response to the order to show cause, and acc......
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Glenn v. Askew, 74-2138
...was unconstitutional as applied to the individual defendants in those cases but declined to declare it invalid on its face. In State v. Magee, 259 So.2d 139 (1972), the Supreme Court of Florida considered a vagueness challenge to § 877.03 and determined simply that the "terms 'public decenc......