Bivens v. StateBivens v. State
Robert A. Butterworth, Atty. Gen., Tallahassee, and Gеorgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for respondents.
The defendant was charged in county court, under
The record reflects that when arrested, adjacent to the beach with а bagful of turtle eggs, the defendant was “covered in sand... and had the smell of a skunk.” Certainly, he had acted like one and we suspect his odious conduct influenced the trial judge and the three circuit judges who upheld the county court decision. As Justice Holmes remarked: “Hard cases make bad law.” Northern Securities Co. v. United States, 193 U.S. 197, 24 S.Ct. 436, 486, 48 L.Ed. 679 (1904).
The case hеre involves consideration of varying statutory language. The Florida Supreme Court has established rules for interpreting penal statutes. Carawan v. State, 515 So.2d 161, 164-165 (Fla. 1987). The goal is to enforce the legislature‘s intent, thus, a statute must be strictly construed when its words are plain and unambiguous. Carawan, 515 So.2d at 166; Jones v. State, 356 So.2d 4, 5 (Fla. 4th DCA 1977). The court may also look beyond the face of the statute to examine the legislative history and determine the legislature‘s intent. Carawan, 515 So.2d at 167. On the other hand, if the statute is ambiguous, all doubts must be resolved in favor of the accused. Id. at 165. Only objectives “clearly and intelligently described in [a penal statute‘s own] words, as well as manifestly intended by the Legislature, [will] be considered as included within [a statute‘s] terms.” Id. at 166 (quoting State v. Wershow, 343 So.2d 605, 608 (Fla. 1977), quoting Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927)).
In the case at bаr, the defendant was convicted of possession of marine turtle eggs. The penalty for this violation is delineated in
(2) Unless otherwise provided by law, any person . .. convicted of violating any provision of ... [C]hapter [370] ... shall be punished:
(a) Upon a first conviction, by imprisonment for . .. not more than 60 days or by a fine of nоt less than $100 nor more than $500, or by both... .
* * * * * *
(c) In addition ..., the court shall assess additional penalties [for] ... major violations as follows: * * * * * *
1. For ... violation[s] involving ... illegal crаwfish or stone crabs... .
2. [S]hrimp... .
3. [O]ysters [or]... .
4. [C]lams ... an additional [monetary] penalty. .. .
5. For a violation involving the taking, harvesting, or possession of any of the following species, which are endangered, threatened, or of special concern:
a. Shortnose sturgeon ...
b. Atlantic sturgeon ...
c. Common snook ...
d. Atlantic loggerhead turtle ...
e. Atlantic green turtle ...
f. Leatherback turtle ...
g. Atlantic hawksbill turtle ...
h. Atlantic ridley turtle ...
i. West Indian manatee ...
an additional penalty of $100 for each unit of marine life or part thereof.
The words of
The additional penalties provided for in
Furthermore, the Florida Legislature did distinguish between marine turtles and marine turtle eggs in another context. In
The circuit court acting in its appellate capacity reasoned that the legislature intended to protect marine turtles, so the destruction of the marine turtle egg must be considered the destruction of “a unit of marine [turtle] life.” However, nothing in the legislative history indicates that the legislature considered a marine turtle egg to be a “unit of marine life.” To the contrary, the legislative history indicates that it never addressed imposing an additional fine for the possession of turtle eggs. Although the оmission of an additional penalty may have been a legislative oversight, the court is not at liberty to promulgate laws the legislature forgot to address. An аdditional penalty for the possession of marine turtle eggs was not described in the words of
Additionally, it is indicated that the Division of Marine Resources does not consider a turtle egg to be “a unit of marine life.” The Division of Marine Resources is responsible for thе administration and enforcement of sections 370.12 and 370.021. See
The trial judge found that not all the eggs taken were fertile and we have no quarrel with that finding. Surely, an egg which is not fertile cannot constitute marine life. Yet, the dеfendant has been levied a $100 fine for each and every egg taken.
For the foregoing cumulative reasons, we believe
We hold that the defendant did not receive procedural due process. A clearly established principle of law was violated resulting in a clear miscarriage of justice. See State v. Macias, 481 So.2d 979 (Fla. 4th DCA 1986). We thereforе grant the petition, quash the decision below and remand in accordance herewith.
PETITION FOR WRIT OF CERTIORARI GRANTED.
GUNTHER, J., dissents without opinion.
WARNER, J., concurs specially with opinion.
WARNER, Judge, concurring specially.
This case has caused great debate in the panel, and I аdmit that I was prepared to affirm until Judge Letts wrote the foregoing compelling opinion. A study of the legislative history which our court ordered reflected а desire to punish more severely multiple takings of protected marine species. However, nowhere in the staff analysis or legislative debates is the subject of multiple takings of turtle eggs discussed. Furthermore, I was struck by the fact that a construction affirming the penalty would result in the same $100 fine for each wholе marine turtle caught as for each egg, fertile or infertile, which appears to me to be somewhat of an imbalance. It was this ultimate uncertainty and thus ambiguity in the provisions that has led me to concur in the majority opinion.
It is appalling to me that someone could be so callous and indifferent to thе plight of the turtles, a true natural treasure of our coastline, as to pluck over 1,000 turtle eggs from their nests. Certainly, the perpetrator‘s punishment ought to be substantially greater in proportion to the magnitude of the crime, as are all other criminal penalties. The legislature needs to address this clearly in its next session.