STATE OF FLORIDA, APPELLANT,
v.
COLEEN MARIE MAGEE, APPELLEE; STATE OF FLORIDA, PLAINTIFF-APPELLANT, V. MICHAEL JOSEPH NUNZIATA, DEFENDANT-APPELLEE
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The Florida Supreme Court upheld Fla. Stat. § 877.03 against a vagueness challenge, holding that the statute's prohibition on acts that "corrupt the public morals or outrage the sense of public decency" provides sufficient notice to average citizens of what conduct is prohibited. The Court reversed the trial court's dismissals of charges against two defendants accused of indecent exposure in a vehicle.
The statute is constitutional and not impermissibly vague. The terms "corrupt the public morals" and "outrage the sense of public decency" are sufficiently understood by the average citizen of common understanding and provide adequate notice of prohibited conduct. The specific conduct of which defendants are accused clearly violates the statute and any person of common intelligence would be aware that exposing genitals/buttocks in public violates it.
[1] A statute is not unconstitutionally vague if its prohibitive conduct is described in language that the average citizen of common understanding can comprehend.
[2] Terms such as "public decency" and "corrupt the public morals" are sufficiently definite to provide fair warning of proscribed conduct.
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Establishes that the challenged statutory language is sufficiently clear and comparable to other upheld criminal statutes
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Join FLexlaw to unlock all legal intelligencePolice observed two defendants, Michael Joseph Nunziata and Coleen Marie Magee, engaged in intimate relations in an automobile. Nunziata was observed …
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The State appeals the trial court’s dismissals of charges on the express ground that a portion of Fla.Stat. § 877.03, F.S.A., was unconstitutional and void for vagueness.1 Jurisdiction vests on the constitutional question under Fla. Const, art. V, § 4 (2), F.S.A. No briefs are filed or appearances made for Respondent Nunziata.
The verbage of the statute ruled unconstitutional by the trial judge reads as follows:
“Whoever commits such acts as are of a nature to corrupt the public morals or outrage the sense of public decency,
This language lacks, says the trial judge, that definiteness and certainty required to establish standards that convey to the average citizen of common understanding a warning of what conduct is proscribed by the statute. We find that the language does meet the test of common understanding,2 is constitutional and reverse.
Smith v. State, 237 So.2d 139 (Fla.1970), discusses the subject of vagueness of such statutes and points out that not every detail is required to be set forth in such a statute so long as the prohibitive conduct is in such language that it is understood by the average citizen. The terms “public decency” and “corrupt the public morals” are terms of general understanding such as “lewd and lascivious”, Chesebrough v. State, 255 So.2d 675 (Fla.1971); “unnecessarily or excessively chastise”, Campbell v. State, 240 So.2d 298 (Fla.1970), and “driving while under the influence of intoxicating liquor ... to the extent that his normal facilities are impaired . ” McArthur v. State, 191 So.2d 429 (Fla.1966). Under such generally understood language, the specific conduct will of course vary and is made fully known to a defendant in the charges filed against him, so that he is made aware against what *141conduct he must defend. This is of course required to constitute a sufficient charge.3
Here, the appellees were observed by police in the very act of intimate relations in an automobile. Appellee Michael Nun-ziata is charged with “lying on front seat of car with his pants pulled down and his penis in plain, view from exterior of car. .” Appellee Coleen Magee was charged with “lying on front seat of car with her pants down and her buttocks exposed . . . .”
Such exposure before the public is clearly calculated to corrupt the public morals and outrage the sense of public decency which is prohibited by the statute and any person of common intelligence would be perfectly aware that it was.
Since the cause is remanded solely on the constitutional issue, we of course do not reach the factual question which may be involved as later presented before the trial court for its determination on the facts.
We hold Fla.Stat. § 877.03, F.S.A., to be constitutional. The judgments and orders of the trial court in each of the two cases are hereby reversed and the causes are remanded for trial.
It is so ordered.
ROBERTS, C. J., and CARLTON, ADKINS, BOYD and McCAIN, JJ., concur.
ERVIN, J., concurs specially with opinion.
(concurring specially) :
I agree only to the conclusion that the statute is not unconstitutional on its face. I believe it is declaratory of the common law and would only apply it in those situations where the common law is violated. Compare concurring opinion of Chief Justice Roberts in Franklin and Joyce v. State, Fla., 257 So.2d 21, 1971. I would remand the cause without prejudice to the trial court to determine by due process whether the offense charged is violative of the statute considered in relation to the common law as modified, of course, by decisional law in the areas of rights including privacy.
ERVIN, Justice
(concurring specially) :
I agree only to the conclusion that the statute is not unconstitutional on its face. I believe it is declaratory of the common law and would only apply it in those situations where the common law is violated. Compare concurring opinion of Chief Justice Roberts in Franklin and Joyce v. State, Fla., 257 So. 2d 21, 1971. I would remand the cause without prejudice to the trial court to determine by due process whether the offense charged is violative of the statute considered in relation to the common law as modified, of course, by decisional law in the areas of rights including privacy.
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Cited By (13 total)
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State v. Saunders, 339 So. 2d 641 (Fla. 1976)…reasonably appears, to be a law enforcement officer. Pursuant to Ch. 74-383 § 1, Laws of Florida, codified as Section 775.011, Florida Statutes (1975), the provisions of Section 776.051 are not applicable in the present case. . In State v. Magee, 259 So. 2d 139 (Fla.1972), this Court affirmed a conviction under Section 877.03 for fornication in the front seat of an automobile and “h[e]ld Fla.Stat. § 877.03, F.S.A., to be constitutional.” 259 So. 2d at 141. But cf. E. G. v. State, 326 So. 2d 445 (Fla. 1st D…1 / 2
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Iva Nelson Gonzales v. City OF Belle Glade, 287 So. 2d 669 (Fla. 1973)…have jurisdiction. Fla.Const, art. V, § 3(b)(1), F.S.A. This Court has consistently upheld the validity of the challenged statute, most recently in Bradshaw v. State, 286 So. 2d 4 (op. filed November 21, 1973), and prior thereto in State v. Magee, 259 So. 2d 139 (Fla.1972). Nothing has occurred to warrant receding from these opinions. The entire records and transcripts in both cases demonstrate that the convictions must be reversed due to the unconstitutional application of the disorderly conduct statute.…1 / 4
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Bradshaw v. State, 286 So. 2d 4 (Fla. 1973)…oratories v. Eckerd, 73 So. 2d 680 (Fla.1954); 8 Fla. Jur., Courts, §§ 173, 175. Since the Severson decision, we have held Fla.Stat. § 877.03, F.S.A., to be constitutional in that the language meets the test of common understanding. State v. Magee, 259 So. 2d 139 (Fla.1972). We pointed out that not every detail is required to be set forth in the statute so long as the prohibitive conduct is in such language that it is understood by the average citizen. The statute was also attacked on constitutional grounds…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Cline v. Frink Dairy Co., 274 U.S. 445 (U.S. 1927)
- Brock v. Hardie, 114 Fla. 670 (Fla. 1934)
- Chesebrough v. State, 255 So. 2d 675 (Fla. 1971)
- Locklin v. Pridgeon, 158 Fla. 737 (Fla. 1947)
- State v. Smith, 240 So. 2d 807 (Fla. 1970)
- Alva Gene Franklin v. State, 257 So. 2d 21 (Fla. 1971)
- State of Fla. ex rel. Joel N. LEE v. Buchanan, 191 So. 2d 33 (Fla. 1966)
- Smith v. State, 237 So. 2d 139 (Fla. 1970)
- Robinson v. State, 69 Fla. 521 (Fla. 1915)
- Campbell v. State, 240 So. 2d 298 (Fla. 1970)