MADDIE JOY LANGLOIS

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ Case No. 5D2023-2681 LT Case No. 2020-CF-001719 _____________________________ MADDIE JOY LANGLOIS, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for St. Johns County.

R. Lee Smith, Judge.

Matthew J. Metz, Public Defender, and Joseph Chloupek, Assistant Public Defender, Daytona Beach, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Deborah

A. Chance, Assistant Attorney General, Daytona Beach, for

Appellee. July 12, 2024

PER CURIAM.

AFFIRMED.

EDWARDS, C.J., and HARRIS, J., concur. KILBANE, J., concurring specially, with opinion.

4 (d) Electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds. Id. § 934.02(1)–(2), (12). These statutory definitions control our analysis. See Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 59 (2024) (explaining when legislative body “takes the trouble to define the terms it uses, a court must respect its definitions as ‘virtually conclusive.’” (quoting Sturgeon v. Frost, 587 U.S. 28, 56 (2019))). In recognition of these defined terms, we have previously explained that “wire communications” and “oral communications” are not the same. See Weeks v. State, 292 So. 3d 1251, 1252 n.2 (Fla. 5th DCA 2020). “Notably, the definition of ‘wire communication’ does not include the same qualifying ‘reasonable expectation of privacy’ language as the definition of oral communication.” Id. Accordingly, if a person is charged under section 934.03(1)(a) for unlawfully intercepting a “wire communication,” there is no requirement that the person whose communication was intercepted have a reasonable expectation of privacy. See § 934.02(1), Fla. Stat. This is true even though a person charged under section 934.03(1)(a), the same statutory subsection, for unlawfully intercepting an “oral communication” would be subject to such a requirement. See id. § 934.02(2); see also Baker v. State, 636 So. 2d 1342, 1343–44 (Fla. 1994) (“Where the legislature has used particular words to define a term, the courts do not have the authority to redefine it.” (citing State v. Graydon, 506 So. 2d 393, 395 (Fla. 1987))); Deloatch v. State, 360 So. 3d 1165, 1169 (Fla. 4th DCA 2023) (“When a statute includes an explicit definition, [courts] must follow that definition . . . .” (first alteration in original) (quoting Stenberg v. Carhart, 530 U.S. 914, 942 (2000))). However, all three defined communications remain subject to the consent requirement. See § 934.03(2)(d), Fla. Stat. (“It is lawful under this section . . . for a person to intercept a wire, oral, or electronic communication when all of the parties to the communication have given prior consent to such interception.”). Based on the plain language of section 934.02, situations may arise where the communication falls within the definition of both

5 “wire communications” and “oral communications”²; whereas the Legislature specifically excluded “wire or oral communications” from the definition of “electronic communication.” If a communication can be either a “wire” or “oral” communication, the decision regarding what charges should be filed, if any, is left to prosecutorial discretion, see State v. Cain, 381 So. 2d 1361, 1367 n.8 (Fla. 1980) (explaining under separation of powers, courts will not interfere with free exercise of prosecutor’s discretion to control criminal prosecutions), but what must be proven to support the charged conduct remains determined by statute. Here, the State made the decision to amend the information and charge Langlois with intercepting a “wire communication” instead of an “oral communication.” Langlois subsequently pled to this charge. The State’s decision to amend the charging document, as it did in this case, is a core function of prosecutorial discretion. See State v. Bloom, 497 So. 2d 2, 3 (Fla. 1986) (“Under Florida’s constitution, the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute.” (citing Art. II, § 3, Fla. Const.)); In re Wild, 994 F. 3d 1244, 1260 (11th Cir. 2021) (“Broadly defined, the term ‘prosecutorial discretion’ refers to the soup-tonuts entirety of ‘[a] prosecutor’s power to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining, and recommending a sentence to the court.’” (alteration in original) (quoting Prosecutorial Discretion, Black’s Law Dictionary (10th ed. 2014))). As technology continues to progress, the ease with which a conversation may be surreptitiously recorded progresses along with it. Consequently, prosecutors are being faced with even more circumstances where section 934.03(1)(a) may be implicated. As such, separation of powers requires courts to respect both the Legislature’s chosen statutory scheme under which these communications are to be classified as well as the State’s constitutionally delegated authority to choose how to prosecute these cases. Therefore, I concur.² That said, not all “wire communications” or “oral communications” will fall under the definition of both.