GILBERT BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. | 1973-12-20
No. 44267
CARLTON, C. J., McCAIN and DEKLE, JJ., concur., ERVIN, J., dissents.
289 So. 2d 388 Florida Supreme Court (1973) Negative Treatment
Cited by 63 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Gilbert Bell appealed his conviction for offenses involving a minor, challenging the constitutionality of Florida Statutes §§ 828.21, 800.02, and 796.07. The Florida Supreme Court upheld all three statutes as sufficiently definite and not unconstitutionally vague, and affirmed Bell's conviction on his plea of nolo contendere.


Holding

The Court held all three statutes constitutional. Section 828.21 conveys sufficiently definite warning as to proscribed conduct. Section 800.02's terms 'unnatural and lascivious' are readily understood by ordinary citizens and secure from constitutional attack. Section 796.07 is sufficiently definite to withstand vagueness and overbreadth challenges; detailed specifications are not required for constitutional sufficiency.


Headnotes

[1] Statutes are constitutional if they convey a sufficiently definite warning of proscribed conduct when measured by common understanding and practice.

[2] The term 'unnatural and lascivious' is sufficiently definite to withstand constitutional attack.

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Key Quotes

“Section 828.21 conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.”

Establishes the standard for constitutional vagueness review—statutes need only convey sufficiently definite warnings by common understanding

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Facts & Procedural History

On January 19, 1973, Bell was charged with eight counts including causing a minor to become delinquent or dependent, unnatural and lascivious acts, an…

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Opinion of the Court
ROBERTS, Justice.

ROBERTS, Justice.

This cause has been transferred to us by the Circuit Court, Fifteenth Judicial Cir cuit in and for Palm Beach County, it appearing that the trial judge directly ruled on the constitutionality of Sections 828.21, 800.02, and 796.07, Florida Statutes, F.S.A., thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(1), Florida Constitution, F.S.A. On January 19, 1973, appellant was charged by information with two counts of causing a minor under 18 to become a delinquent or dependent child, two counts of unnatural and lascivious acts, and four counts of assignation contrary to Sections 828.21, 800.02, and 796.07, Florida Statutes, F.S.A. Appellant moved to quash and dismiss the information and alleged as grounds therefor the unconstitutionality of the aforestated statutes. Hearing, was held on this motion after which the trial court entered an order upholding the constitutionality of these statutes and denying appellants motion to quash and dismiss counts 1, 3, 4, S, 6, 7, and 8. Count 2 was dismissed because in charging violation of Section 828.21, count 2 alleged that the minor involved was seventeen. Since delinquent child is described by Section 39.01 to be one under seventeen years of age, the trial judge dismissed count 2.

Subsequently, appellant expressed an intent to withdraw his previous plea of not guilty and to enter a plea of nolo contend-ere as to counts 1, 3, and 5. The court, after interrogating appellant as to his understanding of the nature of the charge and as to whether his plea was being made freely and voluntarily without threat of punishment or promise of reward having been made, accepted appellant’s plea of nolo contendere as to counts 1, 3, and 5, and adjudged him guilty thereof.

Section 828.21, Florida Statutes, F.S.A., provides:

“Any person who shall commit any act which causes or tends to cause or encourage any person under the age of eighteen years to become a delinquent or dependent child, as defined under the laws of Florida, or which act contributes thereto, or any person who shall by act, or by threats, or commands, or persuasion, induce or endeavor to induce any such person, under the age of eighteen years, to do or to perform any act or to follow any course of conduct, or to so live as would cause or tend to cause any such person under the age of eighteen years to become or to remain a dependent or delinquent child, as defined under the laws of this state shall be guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.-083.”

The trial court correctly upheld the constitutionality of this statute. Section 828.21 conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice. Lindsay v. State, 284 So. 2d 377 (Fla.1973), filed October 24, 1973, State v. Barone, 124 So. 2d 490 (Fla.1960). Sub judice appellant was charged in count 1 with violation of this act in that he:

“. . . did commit sodomy and/or any lewd, unnatural or lascivious act with . . . aged fifteen, by placing his penis in the rectum of . . . . ”

This conduct is clearly proscribed by Sections 828.21 and 800.02, Florida Statutes, F.S.A. In State v. Barone, supra, this Court upheld the constitutionality of Section 828.21, Florida Statutes, F.S.A., which is substantially similar to the statute questioned in the instant cause, against attacks of vagueness and overbreadth. For the reasons stated therein which are applicable sub judice in determining the constitutionality vel non of Section 828.21 and for the reasons stated in our recent decision of Lindsay v. State, supra, wherein we upheld the constitutionality of Section 828.19, Florida Statutes, F.S.A., which are equally applicable to the question of constitutionality of Section 828.21, we hold that Section 828.21 is constitutional.

Relative to the constitutionality vel non of Section 800.02 which provides:

“Whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree.”

we adhere to our recent decision in Witherspoon v. State; Little v. State, 278 So. 2d 611 (Fla.1973), wherein we upheld the constitutionality of Section 800.02 against an attack of vagueness and overbreadth and stated:

“Thus, we reaffirm our holding in Chesebrough v. State, supra [255 So. 2d 675 (Fla.1971)], and Franklin v. State, supra [257 So. 2d 21 (Fla.1971)], that the words ‘unnatural and lascivious’ or ‘lewd and lascivious’ are of such a character that an ordinary citizen can easily determine what character of act is intended, and are thus secure from constitutional attack.” Witherspoon v. State, etc., supra, at 612.

Section 796.07, Florida Statutes, F.S.A., provides in pertinent part:

“(1) As used in this section, unless the context clearly requires otherwise:
(a) The term ‘prostitution’ shall be construed to include the giving or receiving of the body for sexual intercourse for hire, and shall also be construed to include the giving or receiving of the body for licentious sexual intercourse without hire.

(b) The term ‘lewdness’ shall be construed to include any indecent or obscene act.

(c) The term ‘assignation’ shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

(d) The term ‘prostitution’ as used in subdivision (a) shall be construed so as to exclude sexual intercourse between a husband and his wife.

(3)It shall further be unlawful in the state:

(a) To offer to commit, or to commit, or to engage in, prostitution, lewdness or assignation.

(b) To solicit, induce, entice or procure another to commit prostitution, lewdness or assignation with himself or herself.

(c) To reside in, enter or remain in, any place, structure or building, or to enter or remain in any conveyance, for the purpose of prostitution, lewdness or assignation.

(d) To aid, abet or participate in the doing of any of the acts or things enumerated in subsections (2) and (3) of this section.

(4) In the trial of any persons charged with the violation of any of the provisions of this section, testimony concerning the reputation of any place, structure, building or conveyance involved in said charge, and of the person or persons who reside in, operate or frequent the same, and of the defendant, shall be admissible in evidence in support of the charge.

(5) Any person who shall violate any provision of this section shall be deemed guilty of a misdemeanor of the second degree, punishable as provided in § 775.-082 or § 775.083.”

Appellant argues that Section 796.07, Florida Statutes, F.S.A., is unconstitutional because the term lewdness is vague. This statute is sufficiently definite to withstand attacks of vagueness and ov-erbreadth and to convey a sufficiently definite warning of proscribed conduct when measured by common understanding and practice, Chesebrough v. State, 255 So. 2d 675 (Fla.1971); Witherspoon v. State, supra. To make a statute sufficiently certain to comply with constitutional requirements, it is not necessary that it furnish detailed plans and specifications of the acts or conduct prohibited. Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So. 2d 881 (Fla.1972). We are not unmindful of the decision of the United States District Court, Southern District of Florida, in Miami Health Studios, Inc. v. The City of Miami Beach, 353 F.Supp. 593 (S.D.Fla., 1973), wherein that court determined that the lewdness provision of Section 796.07 was unconstitutionally vague and indefinite; however, decisions by United States District Courts when well-reasoned are at the most persuasive and are not controlling in matters before us. Virginia-Carolina Chemical Corporation v. Smith, 121 Fla. 720, 164 So. 717 (1935), Stonom v. Wainwright, 235 So. 2d 545 (Fla.App. 1st 1970).

In addition to assigning as error the trial judge’s finding that the aforecited statutes were constitutional, appellant assigned as error the court’s acceptance of his plea of nolo contendere. Not only does it clearly appear from the record that this assignment of error is clearly without merit, but also we noted that appellant has failed in his brief to make any argument regarding this point. It is the long standing rule of this Court that when assignments of error are not argued in the briefs they will be deemed abandoned unless jurisdictional or fundamental error appears in the record. Rule 3.7, subd. i, Florida Appellate Rules, 32 F.S.A., see Redditt v. State of Florida, 84 So. 2d 317 (Fla.1955). The record before us supports a finding that the plea was voluntarily and knowingly made and that the trial court properly accepted the plea as such.

Accordingly, we hold Section 828.21, 800.02 and 796.07, Florida Statutes, F.S.A., to be constitutional and affirm the judgment of the trial court.

It is so ordered.

CARLTON, C. J., McCAIN and DEKLE, JJ., concur. ERVIN, J., dissents.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (32 total)

  • State v. Bales, 343 So. 2d 9 (Fla. 1977)
    …ssign as error the trial court’s denial of their motion to dismiss the lewdness count entered under Section 796.07(3)(a), Florida Statutes, supra. This Court has often upheld the constitutionality of that legislative enactment. E. g., Bell v. State, 289 So. 2d 388 (Fla.1973); Cheseborough v. State, 255 So. 2d 675 (Fla.1971). In the instant case as recited in the trial court’s order, the State alleges that the deputy was led naked onto a water bed, where he was asked by Ms. Bales whether he realized that the m…
  • Whitted v. State, 362 So. 2d 668 (Fla. 1978)
    …202 So. 2d 861 (Fla.2d DCA 1967); Michel v. Bayshore Marina, Inc., 183 So. 2d 294 (Fla.3d DCA 1966). Appellant’s second contention, that the term “lewdness” is constitutionally defective for vagueness, was rejected in our decision in Bell v. State, 289 So. 2d 388 (Fla. 1973). Similarly, appellant’s third point on appeal which posits, inter alia, that the phrase “licentious sexual intercourse without hire” is unconstitutionally vague, was disposed of adversely to appellant by our recent decision in Tatzel v.…
  • Warren v. State, 572 So. 2d 1376 (Fla. 1991)
    …en “in language which is relevant to today’s society.” Franklin, 257 So. 2d at 23. We agree with the district court that the words “prostitution” and “lewdness” meet the standards set out above. § 796.07(l)(a), (b), Fla.Stat. (1987); Bell v. State, 289 So. 2d 388 (Fla.1973). The district court, therefore, correctly reversed the trial court’s finding those two words vague. The term “ill fame,” however, is, indeed, more troublesome. We appreciate the district court’s deference to this Court’s prior rulings an…

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