TALBOT M. VAN COTT, PETITIONER,
v.
HON. B. J. DRIVER, CIRCUIT JUDGE OF THE SIXTH JUDICIAL CIRCUIT, RESPONDENT
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Van Cott, charged with possessing firearms as a convicted felon, petitioned for prohibition challenging the constitutionality of Florida Statute § 790.23. The court held the statute's phrase "or other similar offense" was unconstitutionally vague under the Due Process Clause because it failed to clearly inform persons subject to it what conduct was prohibited.
The statute is unconstitutionally vague. The phrase "or other similar offense" is not accurately definable, the extent of the exemption cannot be clearly ascertained, and the statute fails to adequately inform persons subject to it what conduct is prohibited, thereby violating the due process requirement that a statute must clearly inform those subject to its provisions what conduct will render them liable to penalties.
[1] Prohibition is a proper remedy to attack the constitutionality of a statute that purports to extend or grant new jurisdiction to the courts.
[2] A statute is void for vagueness if its terms are so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.
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Join FLexlaw to unlock all legal intelligence“a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law”
Establishes the constitutional standard for vagueness analysis that the court applies to the challenged statute
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Join FLexlaw to unlock all legal intelligenceVan Cott was charged in July 1970 with violating Fla.Stat. § 790.23 based on a 1953 felony forgery conviction and his current possession of firearms. …
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Petitioner was charged in July, 1970 with being in violation of Fla.Stat. § 790.-23, F.S.A. (1969). The information specifically charged that petitioner Van Cott was convicted of the felony of forgery in 1953, and did at the present time unlawfully and feloniously have in his custody, possession and control, guns, in violation of Fla.Stat. § 790.23, F.S.A. (1969). Van Cott’s motion to dismiss the information was denied, and he filed his petition for writ of prohibition in this court. We granted a rule nisi in the cause and now must determine whether the rule will be discharged or made absolute.
Van Cott challenges the constitutionality of a portion of Fla.Stat. § 790.23, *458F.S.A. (1969). Prohibition is a proper remedy to attack the constitutionality of a statute which purports to extend the jurisdiction of the courts or grant new jurisdiction. Crill v. State Road Dept., 96 Fla. 110, 117 So. 795 (1928); State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930). Prohibition will also lie where jurisdiction was never conferred because the statute was void for being unconstitutional. Davis, supra; State ex rel. York v. Beckham, 160 Fla. 810, 36 So.2d 769 (1948); State ex rel. Pollack v. Saperstein, Fla. 1953, 67 So.2d 911 (concurring opinion by Justice Hobson).
The statute under attack here reads in pertinent part:
“790.23 Felons; possession of firearms unlawful; exception; penalty.—
(1) It is unlawful for any person who has been convicted of a felony in the courts of this state * * * to own or to have in his care, custody, possession, or control any firearm * * * but to include all tear gas guns and chemical weapons or devices.
(2) This section shall not apply to a person having been convicted of a felony whose civil rights have been restored or to a person convicted of a felony for antitrust violation, unfair trade practice, restraints of trade, nonsupport of dependents, bigamy, or other similar offense.
(3) Any person convicted of violating this section is guilty of a felony and upon conviction shall be punished by imprisonment in the state penitentiary for not less than one (1) year nor more than twenty (20) years.”
We are concerned with the second section, specifically the phrase “or other similar offense.” Petitioner contends that this section of the statute violates the principles for determining constitutional validity under federal and Florida law. Petitioner’s point is well taken. The Florida Supreme Court said in State ex rel. Lee v. Buchanan, Fla.1966, 191 So.2d 33:
“This court, in Brock v. Hardie, 1934, 114 Fla. 670, 154 So. 690, presented guidelines for testing the constitutional validity of a Florida statute under a question of vagueness, considering at some length the case of Cline v. Frink Dairy Co., 1927, 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146. There, we said:
‘ * * * Whether the words of the Florida statute are sufficiently explicit to inform those who are subject to its provisions what conduct on their part will render them liable to its penalties is the test by which the statute must stand or fall, because, as was stated in the opinion above mentioned, [Cline v. F'rink Dairy Co.] “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”
‘Such seems to be the test approved by the Supreme Court of the United States.’ ”
The phrase “or other similar offense” contained in Fla.Stat. § 790.23, F. S.A. (1969), is not accurately definable. The extent of the exemption cannot be clearly ascertained and therefore the statute does not adequately inform those persons subject to it what conduct is prohibited. We feel that Fla.Stat. § 790.23, F.S.A. (1969) is so vague and indefinite that men of common intelligence must necessarily differ as to its application and guess at its meaning. Under this interpretation, the statute in question cannot stand.
The rule nisi issued in this case is hereby made absolute.
PIERCE, C. J., and McNULTY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Honorable B. J. Driver v. Talbot M. VAN Cott, 257 So. 2d 541 (Fla. 1971)…ntrol guns in violation of Florida Statute 790.23, F.S.A. Forgery was not one of the listed categories for exemption as interpreted herein and for that reason the information states a cause of action, so the decision of the District Court of Appeal, 243 So. 2d 457, is quashed with directions that the rule nisi in prohibition theretofore entered by that Court be discharged and the prohibition action dismissed. In the Matthew Smith case, our number 40,396, the information specifically charged that appellee Mat…
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State of Fla. ex rel. v. Honorable Ellen J. Morphonios, 258 So. 2d 42 (Fla. 3d DCA 1972)…ed that the relator is entitled to the issuance of the writ absolute and it is granted. In full confidence that the trial court will adhere to the decision of this court, we withhold issuance of the formal writ. . Van Cott v. Driver, Fla.App.1971, 243 So. 2d 457; Lanzetta v. New Jersey (1939) 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, 892, 893; see also Aztec Motel, Inc. v. State ex rel. Faircloth, Fla. 1971, 251 So. 2d 849.…1 / 2
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State v. Tidey, 946 So. 2d 1223 (Fla. 4th DCA 2007)…other appropriate or adequate remedy at law. Garrett v. Johnson, 112 Fla. 112, 150 So. 239, 239 (1933). Prohibition is available to address the constitutionality of a statute which invalidly extends the jurisdiction of a court. Van Cott v. Driver, 243 So. 2d 457, 458 (Fla. 2d DCA 1971). Here, however, the constitutionality of the statute has been upheld. Section 322.2615(6)(b), Florida Statutes, authorizes the department to conduct formal review hearings before hearing officers “employed by the department,”…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cline v. Frink Dairy Co., 274 U.S. 445 (U.S. 1927)
- Brock v. Hardie, 114 Fla. 670 (Fla. 1934)
- State of Fla. on the relation of Fred H. Davis v. The Honorable E. C. Love, 99 Fla. 333 (Fla. 1930)
- Crill v. State Rd. Dep't of Fla., 96 Fla. 110 (Fla. 1928)
- State of Fla. ex rel. Joel N. LEE v. Buchanan, 191 So. 2d 33 (Fla. 1966)
- State of Fla. Ex rel. James A. York v. Honorable W. H. Beckham, 160 Fla. 810 (Fla. 1948)
- State ex rel. Pollack v. Saperstein, 67 So. 2d 911 (Fla. 1953)