Thomas v. State, 46416
Decision Date | 03 December 1975 |
Docket Number | No. 46416,46416 |
Citation | 326 So.2d 413 |
Parties | Frank Douglas THOMAS, Appellant, v. STATE of Florida, Appellee. |
Court | Florida Supreme Court |
Gerald Kogan and Stephen J. Kogan, Miami, for appellant.
Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
Having been transferred by the District Court of Appeal, Third District, this cause is before us on direct appeal from an order of the Circuit Court in and for Dade County upholding the constitutionality of Section 800.02, Florida Statutes, thus vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution (1973).
Appellant was charged by indictment with the crimes of extortion, assault and battery, conspiracy to commit an unnatural and lascivious act and committing an unnatural and lascivious act. The trial court denied appellant's motion to dismiss the indictment which was based on the ground that Section 800.02, Florida Statutes, is unconstitutional, thereby upholding the validity of said statute. He was found guilty of the crimes charged and was adjudicated guilty by the trial court and sentenced to a term of six months to three years in the state prison.
Appellant contends that his right to a fair and impartial trial was violated by closing remarks of the prosecuting attorney, that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite, and that the acts for which he was convicted do not constitute a violation of Section 800.02, Florida Statutes, and, therefore, the conviction should be reversed. Having carefully read and studied the record and briefs and having heard argument, we find that appellant's points on appeal are without merit.
Although appellant argues that numerous prejudicial and inflammatory remarks were made by the prosecutor in his closing argument, the defense objected to only two of these remarks. This Court stated in State v. Jones, 204 So.2d 515 (Fla.1967), relative to the necessity that there be a timely objection to the challenged remarks, as follows:
'It has been suggested that some courts today seem to be preoccupied primarily in carefully assuring that the criminal has all his rights while at the same time giving little concern to the victim. Upon the shoulders of our courts rests the obligation to recognize and maintain a middle ground which will secure to the defendant on trial the rights afforded him by law without sacrificing protection of society. As Mr. Justice Cardozo explained in Snyder v. Commonwealth of Mass., 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674, 687:
'The Court now recants the statement of the exception upon which respondent relies and henceforth will review challenged argument of prosecutors only when an objection is timely made.' (emphasis supplied)
Cf. Smith v. State, 243 So.2d 602 (Fla.App.1971); Hall v. State, 203 So.2d 202 (Fla.App.1967).
As to those remarks to which appellant failed to object, this Court will not consider appellant's objections. The two remarks which were objected to by defense counsel, to-wit:
'Proceed on.
'Ask the jury to disregard that.'
Were not so harmful or fundamentally tainted so as to require a new trial. Wide latitude in the argument to a jury is permitted. This Court in Spencer v. State, 133 So.2d 729, at 731 (Fla.1961), explained:
(emphasis supplied)
Further, we announced in Paramore v. State, 229 So.2d 855 (Fla.1969), that it will not be presumed that jurors are led astray to wrongful verdicts by impassioned eloquence and that, The prosecutional remarks made sub judice, to which the defense objected, do not warrant reversal of appellant's conviction. Cf. Falcon v. State, 226 So.2d 399 (Fla.1969), Sherman v. State, 255 So.2d 263 (Fla.1971); Grant v. State, 194 So.2d 612 (Fla.1967). The comments made sub judice were not so prejudicial so that no cautionary instruction or retraction could destroy their harmful effect. The trial judge sustained the objections to both comments and specifically asked the jury to disregard the second comment. He acted properly within his discretion in not declaring a mistrial.
Appellant next argues that the trial court erred in denying his motion to dismiss the indictment on the ground that Section 800.02, Florida Statutes, is unconstitutionally vague and indefinite because the language unnatural and lascivious is not sufficiently explicit as to define what conduct is prohibited. We adhere to recent decisions of this Court holding that the words 'unnatural and lascivious' as used in Section 800.02, Florida Statutes, are not void for vagueness and that these words are of such a character that an ordinary citizen can easily determine what character or act is intended; and we are by no means persuaded that the position taken in these cases and the reasoning upon which it was based are no longer valid. Witherspoon v. State, 278 So.2d 611 (Fla.1973); State v. Fasano, 284 So.2d 683 (Fla.1973). Cf. Chesebrough v. State, 255 So.2d 675 (Fla.1971). See also: Murray v. State, 384 F.Supp. 574 (S.D.Fla.1974).
Further, we find that the act of forced oral copulation, sub judice constitutes an unnatural and lascivious act within the meaning of Section 800.02, Florida Statutes. We note that in Washington v. State, 302 So.2d 401 (Fla.1974), this Court cited with approval the following excerpt from the decision of the District Court of Appeal, First District, in Brinson v. State, 278 So.2d 317 (Fla.App.1973):
Relying on this Court's decision in Franklin v. State, 257 So.2d 21 (Fla.1971), the District Court of Appeal, Second District, in Morris v. State, 261 So.2d 563 (Fla.App.1972), opined:
'At this point, however, we interpose that the supreme court in Franklin and Joyce, supra, considered that F.S. § 800.02, F.S.A., which condemns as a misdemeanor any 'unnatural and lascivious act with another person,' Is constitutional. It follows that that court must deem this statute, unlike § 800.01, Supra, to be quite clear and certain, and it must further follow that it thinks it to be set forth in language which Is relevant to today's society.
'Furthermore, the court there held that an 'unnatural and lascivious act with another person' was, under the evidence in those cases, a lesser included offense within the 'abominable and detestable crime against nature' offense charged. Whereupon, the court reversed the judgments of guilty of the higher offenses and remanded the causes with instructions to enter judgments of guilty of the lesser offense and to impose sentence accordingly.
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