Trushin v. State
| Decision Date | 20 May 1980 |
| Docket Number | No. 79-550,79-550 |
| Citation | 384 So.2d 668 |
| Parties | Theodore TRUSHIN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Melvin S. Black, Miami, for appellant.
Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
Before BARKDULL, HENDRY and SCHWARTZ, JJ.
After a non-jury trial, Theodore M. Trushin was found guilty of a violation of that portion of Section 104.061(2), Florida Statutes (1977) which makes it a felony to "directly or indirectly . . . promise anything of value to another intending thereby to buy his or another's vote." The basis of the charge was the fact that Trushin, a lawyer, had distributed a letter to residents of an apartment building who were otherwise unknown to him, in which he offered to write a will without charge for anyone who would "pledge their vote" to two named judicial candidates in a forthcoming election. This appeal presents difficult and important issues concerning both the validity of the statute and the essential elements of the offense it proscribes. Upon the conclusions that the statute is constitutional and that the state's case established its violation by the defendant, we affirm the judgment under review.
Trushin was charged in a one-count information which, although captioned as one for "corruptly influencing voting under § 104.061," alleged a violation only of subsection (2) of that statute. 1 The information alleged that:
(O)n or about the 23rd day of September, 1978, in the County and State aforesaid, (Trushin) did unlawfully and feloniously in the County of Dade, State of Florida, give or promise something of value to another or others intending thereby to buy their vote or votes, in two specific races in the November 7, 1978 General Election which was held in Dade County, Florida; or to corruptly influence them in casting their votes, in two specific races in the November 7, 1978, General Election which was held in Dade County, Florida.
In furtherance thereof the said THEODORE M. TRUSHIN on or about September 23, 1978 did prepare and deliver or cause to be prepared and delivered to a resident or residents of the Roney Plaza Apartments the following letter to-wit:
Although new to your neighborhood, I have engaged in the practice of law on Miami Beach for more than 20 years. During this time, I have had occasion to handle legal matters with both Judge Frederick N. Barad and Judge Calvin R. Mapp, on numerous occasions. I have dealt with them for many years before they went on the bench, and have appeared in their court many times since they became judges.
I unqualifiedly endorse both Frederick N. Barad for retention on the Circuit Court and Calvin R. Mapp for retention of the County Court-- Men who represent the highest standares of the legal profession.
I will be happy to discuss the qualifications and background of these men with you personally.
To every resident of the Roney Plaza Apartments who comes to my office to pledge their vote to Judge Frederick N. Barad and Judge Calvin R. Mapp, in the upcoming runoff election, I will prepare a Last Will and Testament for that person without charge.
My office is located across the street on the mezzanine floor of the Holidy Inn, in Suite M-101.
Thank you.
Sincerely,
THEODORE M. TRUSHIN
TMT/hc
Two witnesses testified in the state's case at the trial. The first was Edgar Buttle who stated only that he was living in the Roney Plaza Apartments on Miami Beach when a copy of the letter set out in the information which was introduced into evidence was slipped under his door. 2 There was no testimony that he or any other person who received the letter was a registered voter or even that he was a permanent resident of Florida, and thus eligible to vote under Section 97.041, Florida Statutes (1978) at the November, 1978 general election. The other witness for the prosecution was an assistant state attorney, who testified to a voluntary statement made by Trushin in which, among other things, he admitted circulating copies of the document to the various residents of the apartment building.
In both the out-of-court statement and his testimony at the trial, Trushin related his version of the circumstances surrounding the initial circulation of the letter. He stated that he had indeed signed the letter 3 and authorized 4 its distribution to the occupants of the Roney Plaza Apartments. The defendant stated that, at the time, he had no idea even of the existence of § 104.061(2) or the possibility that there was anything otherwise wrong with an offer to perform legal services in return only for pledging to vote for a judicial candidate. 5 Probably because the resulting publicity given his letter had by then made him aware of the statute and of the other improprieties involved, Trushin stated without contradiction 6 that none of the 50-odd persons who came to his office in response to the circular (or the publicity) was in fact required to pledge his vote as a condition to the receipt of his free will. 7 On cross-examination however, he confirmed the intention which motivated his transmitting the letter in the first place:
Trushin was subsequently adjudicated guilty and sentenced to serve 60 days in the county jail. This appeal followed.
The Constitutionality of § 104.061(2)
The defendant's first point claims that § 104.061(2) is facially unconstitutional on grounds of vagueness and impermissible overbreadth. Notwithstanding that these issues are acknowledgedly raised for the first time on appeal, 8 we consider their merits because a conviction for the violation of a facially invalid statute would constitute fundamental error. 9 Sanford v. Rubin, 237 So.2d 134 (Fla.1970); In re Kionka's Estate, 121 So.2d 644, 647 (Fla.1960) (O'Connell, J., specially concurring); Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1945); Silver v. State, 174 So.2d 91 (Fla. 1st DCA 1965), cert. denied, 180 So.2d 658 (Fla.1965); see Kinner v. State, 382 So.2d 756 (Fla. 2d DCA 1980), and cases cited. We hold, however, that the statute is not in fact vulnerable to either of the constitutional attacks made upon it, and that it is therefore indeed valid and enforceable.
1. Statute not Vague. Trushin's first contention is that § 104.061(2) is void for vagueness. It is contended specifically that the use of the expression "anything of value," which is not otherwise defined, renders the statute so unclear "that men of common intelligence must necessarily (question) its meaning and differ as to its application," State v. Buchanan, 191 So.2d 33, 34 (Fla.1966), thus invalidating the provision on due process grounds. We entirely disagree. 10 Simply stated, we are able to discern no lack of clarity whatever in either this or any other portion of the statute. The term "anything of value" that which may not be given or promised to another in order to buy or corruptly influence a vote is so completely clear and self-defining that one is tempted to rely solely on the authority of Gertrude Stein to support the proposition. 11
Even though the challenged expression has been employed in similar statutes for a century or more, see e. g., Watson v. State, 39 Ohio St. 123 (1883), we are aware of no authority which even seriously considers the possibility of its vagueness; there is certainly none which actually holds it so. In United States v. Chestnut, 394 F.Supp. 581, 588 (S.D.N.Y.1975), aff'd, 533 F.2d 40 (2d Cir. 1976), cert. denied, 429 U.S. 829, 97 S.Ct. 88, 50 L.Ed.2d 93 (1976) the court characterized a vagueness challenge to the provisions of 18 U.S.C. § 591 (1970) which defined forbidden political contributions and expenditures to include "anything of value" as "border(ing) on the frivolous." See also Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830, supra. Similarly, even the dissenting opinion of Justice Calogero in State v. Newton, 328 So.2d 110 (La.1976), upon which, as we shall see, the defendant heavily relies on the overbreadth question, states at 328 So.2d 112, The majority opinion in Newton similarly dismisses the vagueness question in a single brief reference at 328 So.2d 118.
Surely no person of ordinary mental capacity needs to guess about the fact that he is precluded from offering or transferring any item which is worth anything even, as appellant suggests, a pencil or a blotter so long as he acts with the unlawful intent proscribed by the statute. 12 See Zalla v. State, 61 So.2d 649, 651 (Fla.1952). Hence, the vagueness claim must fall. E. g., Sandstrom v. Leader, 370 So.2d 3, 5-6 (Fla.1979); Swinney v. Untreiner, 272 So.2d...
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...which might arise in this context when a defendant is convicted of a violating a facially invalid criminal statute, see Trushin v. State, 384 So.2d 668 (Fla. 3d DCA 1980), approved, 425 So.2d 1126 (Fla.1982), obviously has no application to this case). The doctrine exists to prevent just th......
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