State v. Winters, 49987

• Decision Date: 31 March 1977
• Docket Number: No. 49987,49987
• Citation: 346 So.2d 991
• Parties: STATE of Florida, Appellant, v. Norman K. WINTERS, Appellee.
• Court: Florida Supreme Court

Page 991

346 So.2d 991

STATE of Florida, Appellant, v. Norman K. WINTERS, Appellee.

No. 49987.

Supreme Court of Florida.

March 31, 1977.

Rehearing Denied June 28, 1977.

Robert L. Shevin, Atty. Gen., and Mary Jo M. Gallay, Asst. Atty. Gen., for appellant.

Robert E. Jagger, Public Defender, and James M. Callan, Jr., Asst. Public Defender, for appellee.

KARL, Justice.

This cause is before us on direct appeal from an order of the county court in and for Pinellas County, holding Section 827.05, Florida Statutes, unconstitutional as vague and indefinite, thereby vesting jurisdiction in this court pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellee was charged by information with seven counts of negligent treatment of his children, Angelia, Alycia, David, Audra, Joe, Roy and Marie, in violation of Section 827.05, Florida Statutes, in that he negligently deprived these children or allowed these children to be deprived of necessary shelter.

Section 827.05, Florida Statutes, provides:

"Negligent treatment of children. Whoever negligently deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." (Emphasis supplied.)

A Statement of Particulars was thereafter filed by the State Attorney in which he specified in what manner appellee had negligently deprived his children of necessary shelter as follows:

"1. On April 18, 1976, Defendant Norman K. Winters negligently deprived the children named in the Information, or allowed said children to be deprived of, necessary shelter by:

a. maintaining said children in a structure infested with insects.

b. maintaining said children in a structure in which the floor was strewn with garbage.

c. providing said children with unclean mattresses and no bedsheets.

d. maintaining for said children a bathroom in which the toilet contained feces and on the floor of which was garbage."

Appellee moved to dismiss the information on the basis that Section 827.05, Florida Statutes, and the charging information are vague, indefinite and overbroad in that they fail to adequately advise or inform appellee of the crime with which he is being charged, and that the phrase "necessary shelter" is unduly broad, being capable of many interpretations and applications.

The trial court granted the motion to dismiss the information and held that Section 827.05, Florida Statutes, is unconstitutional for vagueness and not setting forth sufficient standards.

The sole question for our determination in this cause is the constitutionality vel non of Section 827.05, Florida Statutes.

Penal statutes must be strictly construed in favor of the accused where there is doubt as to their meaning and must be sufficiently explicit so that men of common intelligence may ascertain whether a contemplated act is within or without the law, and so that the ordinary man may determine what conduct is proscribed by the statute. Brock v. Hardie, 114 Fla. 670, 154 So. 690 (1934); Franklin v. State (Joyce), 257 So.2d 21 (Fla.1971); State v. Llopis, 257 So.2d 17 (Fla.1971); State v. Dinsmore, 308 So.2d 32 (Fla.1975); State v. Wershow et al., 343 So.2d 605 (Fla.1977).

Section 827.05 provides criminal penalties for acts of simple negligence. Under the statute, a person with no intent to do a wrong may be punished. His action need not be willful nor culpably negligent. ¹ By his affirmative act of negligence or his negligent failure to act, he violates the statute. Negligence is the failure to use reasonable care. Reasonable care is that degree of care which a reasonably careful person would use under like circumstances. Negligence may consist either in doing something that a reasonably careful person would not do under like circumstances or in failing to do something that a reasonably careful person would do under like circumstances.

A parent, guardian or other person having custody of a child or responsibility for its well being has a duty to provide the child with food, clothing, shelter and medical treatment. Failure to provide any food, clothing, shelter or medical treatment would be a clear violation of the duty. But if there is not a total deprivation, then how much of each must be provided to meet the test of the statute?

In the matter of "necessary shelter," which is involved in the cause sub judice, there was a shelter of some type, but it was alleged to have had garbage on the floor, beds with unclean mattresses and no sheets, a bathroom with feces in the toilet and insect infestation. While such conditions are deplorable and, if allowed to persist, may constitute a health hazard, it cannot be said that the father has, by negligently keeping the children in a dirty house, failed to provide "necessary shelter" as required by Section 827.05. A palacial mansion that is clean and spacious could fail to qualify as "necessary shelter," if it had no heat. A small, overcrowded log cabin may, on the other hand, meet the test. Depending upon the standard adopted, any given shelter,...