State v. Thomas, s. 91-03496

• Decision Date: 21 April 1993
• Docket Number: 91-03665,91-03747,91-03982 and 91-04185,91-03657,Nos. 91-03496,91-03673,91-03653,91-03529,91-03678,91-03748,91-03530,s. 91-03496
• Citation: 616 So.2d 1198
• Parties: 18 Fla. L. Week. D1067 STATE of Florida, Appellant, v. Melburn Ben THOMAS, Gary Leonard Pauli, Tommy Lee Troxell, James Dean Knight, Gordon Levi Flood, Andrew Scott Castle, Donald E. Harrison, Joyce Calvary Haire, Daryl Leshane Cuyler, Joe Eddie Baker, Arnold D. Dennis, Derrick Bowles, and Charles William Porter, Appellees.
• Court: Florida District Court of Appeals

Page 1198

616 So.2d 1198

18 Fla. L. Week. D1067

STATE of Florida, Appellant, v. Melburn Ben THOMAS, Gary Leonard Pauli, Tommy Lee Troxell James Dean Knight, Gordon Levi Flood, Andrew Scott Castle Donald E. Harrison, Joyce Calvary Haire, Daryl Leshane Cuyler, Joe Eddie Baker, Arnold D. Dennis, Derrick Bowles and Charles William Porter, Appellees.

Nos. 91-03496, 91-03529, 91-03530, 91-03653, 91-03657,

91-03665, 91-03673, 91-03678, 91-03747, 91-03748,

91-03982 and 91-04185.

District Court of Appeal of Florida Second District.

April 21, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Michele Taylor and Ron Napolitano, Asst. Attys. Gen., Tampa, for appellant.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Bartow, for appellees.

CAMPBELL, Acting Chief Judge.

In these consolidated appeals, the state seeks review of orders of the judges of the Criminal Division of the Circuit Court of the Tenth Judicial Circuit (en banc) and of the Circuit Court of the Thirteenth Judicial Circuit declaring unconstitutionally vague that portion of section 893.13(1)(i), Florida Statutes (Supp.1990) which enhances the penalty for the unlawful sale, purchase, manufacture, delivery or possession of controlled substances within two hundred feet of the real property comprising a public housing facility. Those orders thereupon dismissed the pending charges against each of the appellees which alleged a violation of the subject statutory provision. We agree that the statutory phrase "public housing facility" is unconstitutionally vague because it is so imprecise as to invite arbitrary or discriminatory enforcement. We, therefore, affirm the orders of the trial judges. Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); Southeastern Fisheries Ass'n, Inc. v. Dep't of Nat'l Resources, 453 So.2d 1351 (Fla.1984); State v. McCarthy, 615 So.2d 784 (Fla. 2d DCA 1993).

In affirming the trial judges in regard to the unconstitutional vagueness of the term "public housing facility" in section 893.13(1)(i), we recognize that we are in conflict with Brown v. State, 610 So.2d 1356 (Fla. 1st DCA 1992), wherein our colleagues came to a different conclusion. We find Brown, however, to be neither helpful nor persuasive as the discussion therein regarding the vagueness of the statute is limited to one paragraph which simply states and concludes as follows:

Appellant first asserts that the phrase "public housing facility" as used in the statute is unconstitutionally vague. We disagree. The proper standard for testing vagueness under Florida law is whether the language gives a person of ordinary intelligence fair notice of what constitutes forbidden conduct. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). The language of the statute must "provide a definite warning of what conduct" is required or prohibited, "measured by common understanding and practice." Warren v. State, 572 So.2d 1376, 1377 (Fla.1991) (quoting State v. Bussey, 463 So.2d 1141, 1144 (Fla.1985)). Based upon dictionary definitions of the individual words, appellant suggests that the average person of common intelligence would interpret the phrase "public housing facility" as including any type of housing where the public is able to reside. In this manner, Brown [sic] ignores the fact that the phrase itself has a meaning more narrow than that gleaned from the definitions of its component words. Although the definition of "public housing facility" might not be included in a dictionary, a person of ordinary intelligence should know what was intended by the phrase.

While the Brown court concludes that "a person of ordinary intelligence should know what was intended by the phrase public housing facility, we have not been able to decipher the intended meaning of the phrase with any degree of precision. The phrase is not defined in any dictionary, case law or sufficiently related statute that we can discover. While each of the three words of the phrase can be independently and easily defined, when used together in the statute, they present a veritable...