Mitro v. State

681 So. 2d 303, 1996 Fla. App. LEXIS 10300, 1996 WL 556847
CourtDistrict Court of Appeal of Florida
DecidedOctober 2, 1996
DocketNo. 95-2995
StatusPublished
Cited by1 cases

This text of 681 So. 2d 303 (Mitro v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mitro v. State, 681 So. 2d 303, 1996 Fla. App. LEXIS 10300, 1996 WL 556847 (Fla. Ct. App. 1996).

Opinions

COPE, Judge.

The question presented by this appeal is whether section 877.18, Florida Statutes (1993), which regulates the issuance of identification cards by private vendors, is constitutional. We conclude that the statute is void for vagueness and reverse defendant’s convictions for violating the statute.

Section 877.18, Florida Statutes, makes it unlawful for a private vendor to issue an identification card or document containing the age or date of birth of the person to whom it was issued, unless the vendor obtains certain documentation of proof of age, and retains the documentation for three years. Id. § 877.18(l)(a). Violation of the statute is a third degree felony.1

[304]*304Section 877.18 requires that the applicant provide a notarized affidavit and “[a]n authenticated or certified copy of proof of age as provided in s. 232.03[.]” Id. § 877.18(l)(a)l. As written, paragraph 877.18(l)(a)l appears to require that proof of age under section 232.03, Florida Statutes, be obtained for every applicant. However, by its terms section 232.03, Florida Statutes, only sets forth the documentation which is required to be presented in order to gain admission of a child to prekindergarten or kindergarten. Section 232.03 itemizes the proof of age for a child which can be accepted by the school authorities. Under section 232.03, “[i]f the first prescribed evidence is not available, the next evidence obtainable in the order set forth below [within s. 232.03] shall be aceepted[.]” Id. Section 232.03 gives first preference to a child’s birth certificate, but then allows other alternative proof of age. Thus, although by its terms section 877.18 applies to adults and children, the statute the vendor is directed to follow, section 232.03, is by its terms only applicable to children falling within the compulsory attendance law.2

[305]*305The legislature has made violation of section 877.18 a third degree felony. The question is whether the statute is sufficiently definite to give citizens fair warning of the conduct which is prohibited. The principles applicable in the case of a vagueness challenge are well settled:

When construing a penal statute against an attack of vagueness, where there is doubt, the doubt should be resolved in favor of the citizen and against the state. Criminal statutes are to be strictly construed according to the letter thereof....
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The requirements of due process of Article I, Section 9, Florida Constitution, and the Fifth and Fourteenth Amendments to the Constitution of the United States are not fulfilled unless the Legislature, in the promulgation of a penal statute, uses language sufficiently definite to apprise those to whom it applies what conduct on their part is prohibited. It is constitutionally impermissible for the Legislature to use such vague and broad language that- a person of common intelligence must speculate about its meaning and be subjected to arrest and punishment if the guess is wrong....
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The test of vagueness of a statute as being whether the language conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice was succinctly stated by this court in Brock v. Hardie, 114 Fla. 670,154 So. 690 (1934), as follows:
‘... 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, ‘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.’
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More recently, this court in State v. Llopis, [257 So.2d 17 (Fla.1971)], held:
“When exercising its power to declare an offense punishable, the Legislature must inform our citizens with reasonable precision what acts are prohibited. There must be provided an ascertainable standard of guüt, a barometer of conduct must be established, so that no person will be forced to act at his peril....’

State v. Wershow, 343 So.2d 605, 608-09 (Fla.1977); see also Roque v. State, 664 So.2d 928, 929-30 (Fla.1995); Wyche v. State, 619 So.2d 231, 236-37 (Fla.1993); Warren v. State, 572 So.2d 1376, 1377 (Fla.1991); Southeastern Fisheries Ass’n, Inc. v. Dept. of Natural Resources, 453 So.2d 1351, 1353-54 (Fla.1984).

Applying the stated principles to section 877.18, we conclude that the statute is unconstitutionally vague. The text of section 877.18 sets forth documentation requirements for all applicants for identification containing age or date of birth, but the statute explaining what documentation is required, section 232.03, by its terms only applies to children who are subject to the compulsory attendance law, that is, children under the age of sixteen. See §§ 232.03, 232.01(l)(a), Fla. Stat. We believe that a reasonable vendor would be in doubt regarding whether the section 232.03 documentation must be obtained for all applicants, or only for applicants under the age of sixteen. Each subdivision of section 232.03 refers to documentation regarding a child: “the child’s birth record”; “certificate of baptism ... of the child”; “insurance policy on the child’s life”; “Bible record of the child’s birth”; “passport or certificate of arrival in the United States showing the age of the child”; “transcript of ... the child’s school record”; “affidavit of age sworn to by the parent, accompanied by a certificate of age signed by a public health officer.” Id. § 232.03(l)-(7). On reading this list of documentation we think a reasonable vendor would have considerable doubt whether the section 232.03 documentation is required for all applicants, or only for child applicants. As stated in State v. Wershow, ‘When construing a penal statute against an attack of [306]*306vagueness, where there is doubt, the doubt should be resolved in favor of the citizen and against the state.” 343 So.2d at 608.

Even if a reasonable vendor could glean that the section 232.03 documentation should be obtained for all applicants, there is an additional problem in that portion of section 232.03 which states, “If the first prescribed evidence is not available, the next evidence obtainable in the order set forth below [in s. 232.03] shall be accepted[.]” The term “not available,” is susceptible to multiple interpretations. The first item on the section 232.03 list is the child’s birth certificate. Id. § 232.03(1). Under one reading, a birth certificate is “not available” only if the applicant was never issued a birth certificate. Under this reading, a vendor should require an identification card applicant to obtain a certified copy of the birth certificate and refuse to issue the identification card without it. Under another possible interpretation, “not available” means only that the document must be available on the applicant’s person.

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Related

State v. Mitro
700 So. 2d 643 (Supreme Court of Florida, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
681 So. 2d 303, 1996 Fla. App. LEXIS 10300, 1996 WL 556847, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitro-v-state-fladistctapp-1996.