State v. Saiez, 84-1619
| Citation | 10 Fla. L. Weekly 1328,469 So.2d 927 |
| Decision Date | 28 May 1985 |
| Docket Number | No. 84-1619,84-1619 |
| Parties | 10 Fla. L. Weekly 1328 The STATE of Florida, Appellant, v. Salvadore SAIEZ, Appellee. |
| Court | Court of Appeal of Florida (US) |
Jim Smith, Atty. Gen., and Randi Klayman Lazarus, Asst. Atty. Gen., for appellant.
William Clay and Steven H. Haguel, Miami, for appellee.
Before NESBITT, BASKIN and JORGENSON, JJ.
The state appeals an order dismissing two counts of an information. Two counts of the information charged Salvadore Saiez with possession of credit card embossing machines in violation of section 817.63, Florida Statutes (1983). A third count charging Saiez with possession of incomplete credit cards remained pending and is not included in the appeal. The trial court predicated its dismissal on a finding that the portion of section 817.63 upon which the challenged counts of the information were based is unconstitutionally vague and overbroad. We affirm.
The pertinent * portion of section 817.63 provides:
[A] person possessing with knowledge of its character any machinery, plates or any other contrivance designed to reproduce instruments purporting to be the credit cards of an issuer who has not consented to the preparation of such credit cards, violates this subsection and is subject to the penalties set forth in § 817.67(2).
We recognize the well-established precept that, when reasonably possible, the court should resolve all doubts about a statute in favor of its constitutionality. State v. Wershow, 343 So.2d 605 (Fla.1977); Department of Legal Affairs v. Rogers, 329 So.2d 257 (Fla.1976). The statute under consideration, however, is so vague and overbroad "that it is not amenable to such a saving construction unless the court is willing to invade the province of the legislature and virtually rewrite it." Wershow at 607. A statute is considered unconstitutionally vague when it fails to give a person of common understanding and intelligence a sufficiently definite warning concerning the conduct it seeks to proscribe. Wershow; Zachary v. State, 269 So.2d 669 (Fla.1972); Aztec Motel, Inc. v. Faircloth 251 So.2d 849 (Fla.1971). A statute is construed as overbroad:
when legal, constitutionally protected activities are criminalized as well as illegal, unprotected activities, or when the Legislature sets a net large enough to catch all possible offenders and leaves it to the courts to step inside and determine who is being lawfully detained and who should be set free.
Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971); Schultz v. State, 361 So.2d 416, 418 (Fla.1978); Wershow.
The portion of section 817.63 under review appears to prohibit the mere possession of embossing machinery designed to reproduce credit cards. The statute does not denote a particular type of embossing machine, and thus includes in its prohibition machinery that is possessed and used for lawful purposes. Because the challenged portion of the statute fails to set forth a standard by which the possessor of the machinery may know what acts are proscribed, it is unconstitutionally vague, indefinite, and uncertain. Furthermore, the defective portion of the statute is unconstitutionally overbroad; its prohibition against...
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State v. Saiez
...Miami, for appellant. Steven H. Haguel of Bill Clay, P.A., Miami, for appellee. BARKETT, Justice. We have before us State v. Saiez, 469 So.2d 927 (Fla. 3d DCA 1985). This appeal concerns the constitutionality of a statute. We have jurisdiction pursuant to article V, section 3(b)(1) of the F......
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Land v. State, Dept. of Revenue
...all doubts regarding the proper construction of a statute must be resolved in favor of a constitutional interpretation. State v. Saiez, 469 So.2d 927 (Fla. 3d DCA 1985); Zerweck v. Commission on Ethics, 409 So.2d 57 (Fla. 4th DCA In Florida Boaters Ass'n, Inc., 409 So.2d at 17, our supreme ......