DANNY PAUL MOOSBRUGGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A deputy sheriff was convicted under Florida's official misconduct statute for failing to properly report a recovered stolen radio. The appellate court reversed the conviction, holding that the statute's prohibition on public servants "knowingly refraining" from performing duties "imposed by law" was unconstitutional for vagueness.
The statute is unconstitutional because it is impermissibly vague and susceptible to arbitrary application. The language fails to provide fair notice of which public duties are "imposed by law" and does not adequately limit prosecutorial discretion.
[1] The facial validity of a statute may be raised for the first time on appeal.
[2] A statute is unconstitutional if its language is vague and open to arbitrary and capricious application.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is simply no way of determining which of the myriad of public servants' duties are "imposed ... by law."”
Establishes the core vagueness problem: the statute fails to provide a principled standard for identifying which duties fall within its scope.
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Join FLexlaw to unlock all legal intelligenceAppellant Moosbrugger was a deputy sheriff who failed to turn in a stolen two-way radio to the evidence room, failed to fill out a report regarding th…
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GRIMES, Acting.Chief Judge.
The state filed an information charging appellant:
[T]hen and there being a public servant, to-wit, a deputy sheriff with corrupt intent to obtain a benefit for himself knowingly did refrain from performing a duty imposed upon the said DANNY PAUL MOOSBRUGGER by law, to-wit, in that he did fail to turn in a stolen two-way radio into the Polk County Sheriffs Department evidence room and fill out a report regarding the recovery of the radio and failed in any way to report the recovery of said stolen two-way radio to any law enforcement agency once he was informed the radio was stolen, in violation of Section 839.25, Florida Statutes.
The appellant was found guilty and placed on probation.
Appellant now contends that section 839.25(l)(a), Florida Statutes (1983), the statute under which he was convicted, is unconstitutional. This statute reads as follows:
(1) “Official misconduct” means the commission of one of the following acts by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another:
(a) Knowingly refraining, or causing another to refrain, from performing a duty imposed upon him by law; or ....
While this point was not argued in the trial court, the facial validity of a statute may be raised for the first time on appeal. Trushin v. State, 425 So. 2d 1126 (Fla.1983).
In State v. Jenkins, 454 So. 2d 79 (Fla. 1st DCA 1984), our sister court recently held this very statute unconstitutional. In that case, the state sought to prosecute a property appraiser for failing to assess back taxes on certain property. The court reasoned that the language of subsection (a) was at least as vague and open to arbitrary and capricious application as subsection (c) of the 1977 statute which was struck down by the supreme court in State v. DeLeo, 356 So. 2d 306 (Fla.1978). We agree. There is simply no way of determining which of the myriad of public servants’ duties are “imposed ... by law.” The words of DeLeo in referring to subsection (c) are equally applicable to subsection (a).
“The crime defined by the statute, ..., is simply too open-ended to limit prosecutorial discretion in any reasonable way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process for political purposes. We find it susceptible to arbitrary application because of its ‘catch-all’ nature.”
454 So. 2d at 81.
We reverse the judgment of conviction and declare section 839.25(l)(a) to be unconstitutional.
SCHEB and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Jenkins, 469 So. 2d 733 (Fla. 1985)…cess for political purposes. We find it susceptible to arbitrary application because of its “catch-all” nature. Id. (footnote omitted). The district court in the instant case, as well as the Second District Court of Appeal in Moosbrugger v. State, 461 So. 2d 1033 (Fla. 2d DCA 1985), concluded that there is no meaningful distinction between the language of subsection (a) and that of former subsection (c). We agree that subsection (a) suffers the same vulnerability to arbitrary application and find that it imp…
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Davis v. State, 495 So. 2d 928 (Fla. 4th DCA 1986)…es are raised for the first time on appeal. Therefore we consider them only to the extent that appellant alleges the facial unconstitutionality of the statute. See Manning v. State, 461 So. 2d 1025 (Fla. 4th DCA 1985). See also Moosbrugger v. State, 461 So. 2d 1033 (Fla. [*930] 2d DCA), aff'd, 472 So. 2d 742 (Fla.1985). We conclude that the statute is not unconstitutional. Appellant argues that the cost assessment in the statute is unreasonable and an unlawful tax. He contends that it is unrelated to any actu…
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State v. Moosbrugger, 472 So. 2d 742 (Fla. 1985)…PER CURIAM. We approve the decision of the Second District Court of Appeal reported as Moosbrugger v. State, 461 So. 2d 1033 (Fla.2d DCA 1985), on the authority of our decision in State v. Jenkins, 469 So. 2d 733 (Fla.1985). It is so ordered. BOYD, C.J., and ADKINS, OVERTON, MCDONALD, EHRLICH and SHAW, JJ., concur. ALDERMAN, J., dissents.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trushin v. State, 425 So. 2d 1126 (Fla. 1982)
- State v. DeLEO, 356 So. 2d 306 (Fla. 1978)
- Exon v. Stockton, 454 So. 2d 79 (Fla. 1st DCA 1984)