State v. Wershow, 50077

• Decision Date: 25 February 1977
• Docket Number: No. 50077,50077
• Citation: 343 So.2d 605
• Parties: STATE of Florida, Appellant, v. Jonathan F. WERSHOW et al., Appellees.
• Court: Florida Supreme Court

Page 605

343 So.2d 605

STATE of Florida, Appellant, v. Jonathan F. WERSHOW et al., Appellees.

No. 50077.

Supreme Court of Florida.

Feb. 25, 1977.

Robert L. Shevin, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Eugene T. Whitworth, State Atty., and William E. Whitley, Asst. State Atty., for appellant.

Henry L. Gray, Jr., of Chandler, O'Neal, Gray & Lang, Fletcher N. Baldwin, Jr., Gerald T. Bennett and Wayne M. Carroll, Gainesville, for appellees.

KARL, Justice.

This cause is before us on direct appeal from an order of the County Court for Alachua County declaring Section 839.11, Florida Statutes, unconstitutionally vague and granting the motions to dismiss the indictment against the appellees. Jurisdiction vests in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellees, County Commissioners of Alachua County, were charged by indictment with twenty-one counts of malpractice in office, each count charging violation of Section 839.11, Florida Statutes. The penal statute provides:

'839.11 Extortion and malpractice generally.--Any officer of this state who willfully charges, receives or collects any greater fees than he is entitled to charge, receive, or collect by law, or Who is guilty of any malpractice in office not otherwise especially provided for, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.' (emphasis supplied)

The charges against the appellees do not involve the willful charging, receiving or collecting of fees greater than authorized by law. Their offenses fall within that portion of the statute which purports to punish 'malpractice in office not otherwise provided for.'

Charged violations included, inter alia, approving or voting to approve the purchase of new voting machines without taking competitive bids or having the Chairman of the Board of County Commissioners certify to the Department of State that the situation and conditions required an exception to the competitive bidding law; failing to keep and maintain adequate records, or failing to see that adequate records were kept and maintained, regarding the use of county funds; approving the misappropriation of trust money of the Public Facilities Authority as loans to Alachua County; approving the misappropriation of construction trust funds to pay current obligations of Alachua General Hospital; failing to provide written guidelines to Alachua County Business Services Department employees regarding their duties and responsibilities; permitting, or failing to supervise properly their staff who permitted, contractors of certain capital projects for Alachua County to go without performance bonds to indemnify the Board of County Commissioners of Alachua County against loss; and authorizing the use of funds from the State Mosquito Control Fund for other purposes during the fiscal year 1973--1974.

Motions to dismiss the indictment were filed by appellees who alleged that Section 839.11, Florida Statutes, upon which all counts of the indictment are based, is vague, indefinite and uncertain in its terms and, thereby, denies them due process of law as guaranteed by Article I, Section 9, Florida Constitution, and the Fourteenth Amendment to the United States Constitution; that the statute is being selectively enforced; that the charges in the indictment contain no allegations that appellees willfully or corruptly failed to perform any duty imposed upon them by law; that the charges in the indictment contain no allegations that the defendants intentionally and maliciously, or voluntarily, unlawfully, or without justification or excuse failed to perform any duty imposed upon them by law; that the statute of limitations had run on several of the counts; and that the indictment does not charge any offense under the laws of this state.

Finding that the portion of Section 839.11, Florida Statutes, under which the defendants are charged is vague, indefinite and uncertain in its terms and is, therefore, unconstitutionally violative of the due process clauses of the Florida and federal constitutions, the trial court dismissed the indictment against appellees and reasoned:

'Reduced to its essential language, the statute says that 'any officer of this state . . . who is guilty of any malpractice in office not otherwise especially provided for shall be guilty of a misdemeanor of the first degree.' . . .

'The term 'malpractice in office' is susceptible of so many different interpretations that it necessarily compels men of common intelligence to guess at its meaning and differ as to its application. It therefore violates the requirements of constitutional due process.'

Appellant urges the court to uphold the validity of the questioned statute by construing it in a manner that will avoid conflict with the Constitution. We recognize that this court has consistently followed the established precept that, if reasonably possible and consistent with constitutional rights, it should resolve all doubts of a statute in favor of its validity. However, we conclude that the subject statute is so vague and overbroad that it is not amenable to such saving construction unless the court is willing to invade the province of the Legislature and virtually rewrite it. Under our constitutional system, courts cannot legislate. Article II, Section 3, Florida Constitution. State v. Egan, 287 So.2d 1 (Fla.1973). Quoting from and relying upon the holding of the decision of the Supreme Court of the United States in Yu Cong Eng et al. v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059, this court, in Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (1947), stated:

'The court cannot, in order to bring a statute within the fundamental law, amend it by construction.'

'A statute which requires the doing of an act so indefinitely described that men must guess at its meaning violates due process of law.'

'A statute cannot in order to make it conform to constitutional requirements, be given an indefinite mandatory construction in lieu of the broadly prohibitory meaning indicated by its language.'

'Generally, inclusive terms in a criminal statute cannot be reduced by construction so as to limit its application only to that class of cases which it was within the power of the legislature to enact, and thus save the statute from invalidity.' (emphasis supplied)

To construe Section 839.11, Florida Statutes, as the state here suggests would require an abandonment of judicial restraint. We are unwilling to do so. Appropriately applicable to this discussion is the following excerpt from the dissenting opinion of Justices Roberts, Frankfurter and Jackson in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944):

'. . . to subject to criminal punishment conduct that the court may eventually find to have been within the scope or limitations of a legal doctrine underlying a decision is to satisfy the vital requirement of definiteness through an appearance of definiteness in the process of constitutional adjudication which every student of law knows not to comport with actuality. What the Constitution requires is a definiteness defined by the legislature, not one argumentatively spelled out through the judicial process which, precisely because it is a process, can not avoid incompleteness. A definiteness which requires so much subtlety to expound is hardly definite.'

When construing a penal statute against an attack of vagueness, where there is doubt, the doubt should be resolved in favor of the citizen and against the state. Criminal statutes are to be strictly construed according to the letter thereof. Ex parte Bailey (1897), 39 Fla. 734, 23 So. 552, State v. Buchanan, 191 So.2d 33 (Fla.1966), State v. Llopis, 257 So.2d 17 (Fla.1971), State v. Dinsmore, 308 So.2d 32 (Fla.1975). Discussing generally the construction to be given penal statutes, this court, in Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927), explicated:

'The statute being a criminal statute, the rule that it must be construed strictly applies. Nothing is to be regarded as included within it that is not within its letter as well as its spirit; nothing that is not clearly and intelligently described in its very words, as well as manifestly intended by the Legislature, is to be considered as included within its terms; and where there is such an ambiguity as to leave reasonable doubt of its meaning, where it admits of two constructions, that which operates in favor of liberty is to be taken. See Ex parte Bailey, supra.'

The requirements of due process of Article I, Section 9, Florida Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States are not fulfilled unless the Legislature, in the promulgation of a penal statute, uses language sufficiently definite to apprise those to whom it applies what conduct on their part is prohibited. It is constitutionally impermissible for the Legislature to use such vague and broad language that a person of common intelligence must speculate about its meaning and be subjected to arrest and punishment if the guess is wrong. The Supreme Court of the United States, in United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876), opined:

'It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside any say who could be rightfully detained and two should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.'

The test of vagueness of a statute as being whether the language conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice was succinctly stated by this court in Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934), as follows:

'. . . Whether the words of the Florida statute are sufficiently explicit to inform those who are subject to its provisions...