State v. Olson

586 So. 2d 1239, 1991 WL 187311
CourtDistrict Court of Appeal of Florida
DecidedSeptember 20, 1991
Docket89-1710
StatusPublished
Cited by8 cases

This text of 586 So. 2d 1239 (State v. Olson) 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
State v. Olson, 586 So. 2d 1239, 1991 WL 187311 (Fla. Ct. App. 1991).

Opinion

586 So.2d 1239 (1991)

STATE of Florida, Appellant,
v.
Karen Elizabeth OLSON, Appellee.

No. 89-1710.

District Court of Appeal of Florida, First District.

September 20, 1991.

*1240 Robert A. Butterworth, Atty. Gen. and James W. Rogers, Asst. Atty. Gen., for appellant.

Ausley, McMullen, McGehee, Carothers & Proctor and C. Gary Williams and Stephen C. Emmanuel, Robert Augustus Harper, Jr., Tallahassee, for appellee.

SCHWARTZ, ALAN R., Associate Judge.

The state appeals from a final order dismissing a prosecution for a violation of section 951.22 on the ground that the statute is unconstitutional both on its face and as applied to the defendant. We reverse.

*1241 The underlying facts of the case, as determined by the trial court after an evidentiary hearing, are appropriately set forth in the order under review:

On June 11, 1988, Olson was interviewing inmates at the Leon County Jail in connection with her duties as a reporter for the Tallahassee Democrat. She chose to conduct these interviews as a jail visitor rather than through the alternative procedure which the Leon County Sheriff's Department (LCSD) had established for members of the news media. While the Defendant was talking with one inmate, another inmate, Fred Madry, passed her some pieces of paper with writing on [them].[1] This was observed by a correctional officer who detained and questioned the Defendant about them. The defendant refused the officer's request to relinquish the papers. After further discussion, Olson was allowed by the correctional staff to leave the jail without surrendering the papers. Thereafter, she was arrested by the Leon County Sheriff's Department and charged with violation of F.S. § 951.22.

The information in question alleged that:

[I]n Leon County, Florida, the above named defendant(s), on the 11th day of June, 1988, did unlawfully, while upon the grounds of the Leon County Jail, a county detention facility, receive from an inmate and possess,[2] written communications, an article or thing declared to be contraband, contrary to Section 951.22, Florida Statutes.[3]

We are unable to agree with the trial judge's conclusions[4] that the portion of the *1242 statute invoked by the state against Ms. Olson is in any way invalid.

Our approach to this case begins with — and is largely determined by — the familiar rule which has, and has been given, particular application to the present situation: that a court may consider the validity only of that portion of a broader statute which concerns the conduct in question before it. As is said in 10 Fla.Jur.2d Constitutional Law section 62:

Not only must a person be adversely affected by a statute in order to challenge its constitutionality but he also must be affected by the portion of the statute which he attacks. Thus, a person cannot raise an objection to part of a statute unless his rights are in some way injuriously affected thereby... .
* * * * * *
One who is not himself denied some constitutional right or privilege may not be heard to raise constitutional questions on behalf of some other person who may at some future time be affected.

10 Fla.Jur.2d Constitutional Law § 62 at 285 (1979). E.g., Greenway v. State, 413 So.2d 23 (Fla. 1982) (defendant may challenge only that portion of § 944.47, state prison equivalent of 951.22, prohibiting possession of particular contraband involved); Wells v. State, 402 So.2d 402 (Fla. 1981) (same); see generally Henderson v. Antonacci, 62 So.2d 5 (Fla. 1952); State ex rel. Clarkson v. Philips, 70 Fla. 340, 70 So. 367 (1915). In this case, then, we confine our inquiry to the determination of whether Ms. Olson may constitutionally be prosecuted for receiving the note from Madry under the appropriate portion of 951.22; that is, the part which provides that

*1243 [i]t is unlawful except through regular channels as duly authorized by the sheriff or officer in charge .. . to ... receive from any inmate of any such facility wherever said inmate is located at the time... any of the following articles which are hereby declared to be contraband for the purposes of this act, to wit: Any written ... communication.[5]

§ 951.22, Fla. Stat. (1989). In our view the question virtually answers itself in the affirmative.

It is clear first of all that the state in its undoubted, virtually plenary authority to maintain order within its prisons may constitutionally forbid an unauthorized exchange of written communication between an inmate and an outsider. 60 Am.Jur.2d Penal and Correctional Institutions § 45 (1987); 72 C.J.S. Prisons § 96 (1987); 41 Fla.Jur.2d Prisons and Prisoners § 36 (1983); see Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 94 S.Ct. 2811, 41 L.Ed.2d 514 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); State v. Ashcraft, 378 So.2d 284 (Fla. 1979); State v. Oxx, 417 So.2d 287 (Fla. 5th DCA 1982). Thus, the validity as a matter of substantive due process of the "note passing" portion of the statute, with which we are solely concerned, cannot be doubted. See State v. Saiez, 489 So.2d 1125, 1129 (Fla. 1986). Nor do we find any merit to the other constitutional attacks mounted against this prosecution:

1. Statute Not Vague

We frankly find nothing at all in the appellee's contention that there is anything vague about the portion of 951.22 she allegedly violated. Certainly, no person "of common intelligence" needs to guess at the fact that, when the statute says that one may not receive any "written communication" "from any inmate" "except through regular channels as duly authorized by the sheriff,"[6] § 951.22(1), Fla. Stat. (1989), it means just that and that the conduct which forms the basis of this case is unambiguously described by that provision. Hence, the vagueness claim must fall. E.g., Sandstrom v. Leader, 370 So.2d 3, 5-6 (Fla. 1979); Swinney v. Untreiner, 272 So.2d 805 (Fla. 1973), cert. denied, 413 U.S. 921, 93 S.Ct. 3064, 37 L.Ed.2d 1043 (1973); Sexton, Inc. v. City of Vero Beach, 555 So.2d 444 (Fla. 4th DCA 1990).

2. First Amendment Objections Without Merit

The first amendment complaints arising from the defendant's status as a *1244 newspaper reporter allegedly gathering information likewise have no substance. It is first clear that the fact that a facially neutral statute like this one which is broadly applicable to forbid antisocial conduct when committed by any member of the public, is not rendered in any way invalid merely because it may, in a particular case, affect a member of the press. Shevin v. Sunbeam Television Corp., 351 So.2d 723 (Fla. 1977), appeal dismissed, 435 U.S. 920, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978); see Wilkerson v. State, 556 So.2d 453 (Fla. 1st DCA 1990), review denied, 564 So.2d 1088 (Fla. 1990).

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Bluebook (online)
586 So. 2d 1239, 1991 WL 187311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olson-fladistctapp-1991.