State v. Olson, 89-1710

• Decision Date: 20 September 1991
• Docket Number: No. 89-1710,89-1710
• Citation: 586 So.2d 1239
• Parties: 16 Fla. L. Weekly D2491, 19 Media L. Rep. 1537 STATE of Florida, Appellant, v. Karen Elizabeth OLSON, Appellee.
• Court: Florida District Court of Appeals

Page 1239

586 So.2d 1239

16 Fla. L. Weekly D2491, 19 Media L. Rep. 1537

STATE of Florida, Appellant, v. Karen Elizabeth OLSON, Appellee.

No. 89-1710.

District Court of Appeal of Florida First District.

Sept. 20, 1991.

Robert A. Butterworth, Atty. Gen. and James W. Rogers, Asst. Atty. Gen., for appellant.

Ausley, McMullen, McGehee, Carothers & Proctor and C. Gary Williams and Stephen C. Emmanuel, Robert Augustus Harper, Jr., Tallahassee, for appellee.

SCHWARTZ, ALAN R., Associate Judge.

The state appeals from a final order dismissing a prosecution for a violation of section 951.22 on the ground that the statute is unconstitutional both on its face and as applied to the defendant. We reverse.

The underlying facts of the case, as determined by the trial court after an evidentiary hearing, are appropriately set forth in the order under review:

On June 11, 1988, Olson was interviewing inmates at the Leon County Jail in connection with her duties as a reporter for the Tallahassee Democrat. She chose to conduct these interviews as a jail visitor rather than through the alternative procedure which the Leon County Sheriff's Department (LCSD) had established for members of the news media. While the Defendant was talking with one inmate, another inmate, Fred Madry, passed her some pieces of paper with writing on [them]. ¹ This was observed by a correctional officer who detained and questioned the Defendant about them. The defendant refused the officer's request to relinquish the papers. After further discussion, Olson was allowed by the correctional staff to leave the jail without surrendering the papers. Thereafter, she was arrested by the Leon County Sheriff's Department and charged with violation of F.S. Sec. 951.22.

The information in question alleged that:

[I]n Leon County, Florida, the above named defendant(s), on the 11th day of June, 1988, did unlawfully, while upon the grounds of the Leon County Jail, a county detention facility, receive from an inmate and possess, ² written communications, an article or thing declared to be contraband, contrary to Section 951.22, Florida Statutes. ³

We are unable to agree with the trial judge's conclusions ⁴ that the portion of the statute invoked by the state against Ms. Olson is in any way invalid.

Our approach to this case begins with--and is largely determined by--the familiar rule which has, and has been given, particular application to the present situation: that a court may consider the validity only of that portion of a broader statute which concerns the conduct in question before it. As is said in 10 Fla.Jur.2d Constitutional Law section 62:

Not only must a person be adversely affected by a statute in order to challenge its constitutionality but he also must be affected by the portion of the statute which he attacks. Thus, a person cannot raise an objection to part of a statute unless his rights are in some way injuriously affected thereby....

* * * * * *

One who is not himself denied some constitutional right or privilege may not be heard to raise constitutional questions on behalf of some other person who may at some future time be affected.

10 Fla.Jur.2d Constitutional Law Sec. 62 at 285 (1979). E.g., Greenway v. State, 413 So.2d 23 (Fla.1982) (defendant may challenge only that portion of Sec. 944.47, state prison equivalent of 951.22, prohibiting possession of particular contraband involved); Wells v. State, 402 So.2d 402 (Fla.1981) (same); see generally Henderson v. Antonacci, 62 So.2d 5 (Fla.1952); State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367 (1915). In this case, then, we confine our inquiry to the determination of whether Ms. Olson may constitutionally be prosecuted for receiving the note from Madry under the appropriate portion of 951.22; that is, the part which provides that [i]t is unlawful except through regular channels as duly authorized by the sheriff or officer in charge ... to ... receive from any inmate of any such facility wherever said inmate is located at the time ... any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: Any written ... communication. ⁵

Sec. 951.22, Fla.Stat. (1989). In our view the question virtually answers itself in the affirmative.

It is clear first of all that the state in its undoubted, virtually plenary authority to maintain order within its prisons may constitutionally forbid an unauthorized exchange of written communication between an inmate and an outsider. 60 Am.Jur.2d Penal and Correctional Institutions Sec. 45 (1987); 72 C.J.S. Prisons Sec. 96 (1987); 41 Fla.Jur.2d Prisons and Prisoners Sec. 36 (1983); see Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); State v. Ashcraft, 378 So.2d 284 (Fla.1979); State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). Thus, the validity as a matter of substantive due process of the "note passing" portion of the statute, with which we are solely concerned, cannot be doubted. See State v. Saiez, 489 So.2d 1125, 1129 (Fla.1986). Nor do we find any merit to the other constitutional attacks mounted against this prosecution:

1. Statute Not Vague

We frankly find nothing at all in the appellee's contention that there is anything vague about the portion of 951.22 she allegedly violated. Certainly, no person "of common intelligence" needs to guess at the fact that, when the statute says that one may not receive any "written communication" "from any inmate" "except through regular channels as duly authorized by the sheriff," ⁶ Sec. 951.22(1), Fla.Stat. (1989), it means just that and that the conduct which forms the basis of this case is unambiguously described by that provision. Hence, the vagueness claim must fall. E.g., Sandstrom v. Leader, 370 So.2d 3, 5-6 (Fla.1979); Swinney v. Untreiner, 272 So.2d 805 (Fla.1973), cert. denied, 413 U.S. 921, 93 S.Ct. 3064, 37 L.Ed.2d 1043 (1973); Sexton, Inc. v. City of Vero Beach, 555 So.2d 444 (Fla. 4th DCA 1990).

2. First Amendment Objections Without Merit

The first amendment complaints arising from the defendant's status as a newspaper reporter allegedly gathering information likewise have no substance. It is first clear that the fact that a facially neutral statute like this one which is broadly applicable to forbid antisocial conduct when committed by any member of the public, is not rendered in any way invalid merely because it may, in a particular case, affect a member of the press. Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla.1977), appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978); see Wilkerson v. State, 556 So.2d 453 (Fla. 1st DCA 1990), review denied, 564 So.2d 1088 (Fla.1990).

Moreover, and finally, we disagree with the claim that the section either facially or by overbreadth forbids behavior which is protected by the first amendment to the United States Constitution and by Article I, Secs. 4 and 9 of the Florida Constitution. See, e.g., Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Trushin v. State, 425 So.2d 1126 (Fla.1982). This is so, very simply, because the activity in question here, the receipt by a newspaper reporter of an unauthorized communication from a prison inmate, is simply not entitled to first amendment protection. Indeed, it is well settled that where, as is admittedly true here, there are other available means of contact, the press has no right of access whatever to a prisoner beyond that of the general public. Houchins, 438 U.S. at 9, 98 S.Ct. at 2593-94, 57 L.Ed.2d at 561; Saxbe, 417 U.S. at 850, 94 S.Ct. at 2815, 41 L.Ed.2d at 519; Pell, 417 U.S. at 834, 94 S.Ct. at 2810, 41 L.Ed.2d at 508. Under these authorities the press may constitutionally be precluded even from face to face access to prisoners. Saxbe, 417 U.S. at 850, 94 S.Ct. at 2815, 41 L.Ed.2d at 519. Surely, then, there can be no infirmity in prohibiting the unsupervised and unauthorized exchange of a written note. Since, therefore, the pertinent clauses of Sec. 951.22 simply cannot be read to prohibit anything at all beyond the statute's "plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830, 842 (1973), that is, the regulation of prison activity, Olson's first amendment arguments cannot be sustained. See Trushin, 425 So.2d at 1131, Wilkerson, 556 So.2d at 455, review denied, 564 So.2d 1088 (Fla.1990).

For these reasons the judgment under review is reversed with directions to reinstate the information.

WOLF, J., concurs, participating after oral argument, in substitution for THOMPSON, Senior Judge.

BARFIELD, J., dissents, with opinion.

BARFIELD, Judge, dissenting.

I must disagree with the majority opinion for two reasons. The first and more prominent mistake which I believe the majority has made is the analysis of standing and facial constitutional validity by reference to the specific facts of this case. The facial validity of a statute is determined without regard to facts of a particular case. The majority is able to dismiss the notion of possession of contraband as surplusage only upon the results of an evidentiary hearing.

The second problem presented by the majority is its belief that an allegation of receiving contraband coupled with an allegation of possession allows the court to ignore the charge of possession. This result is reached in part by the majority looking beyond the charging document to the specific facts of this case. We are confronted with a poorly drafted statute and a more poorly drafted charging document. The statute sets forth several distinct offenses coupled in the alternative with "or". Among those offenses are possession of contraband and receiving contraband. The statute further purports to...