Carpentier v. StateCarpentier v. State
Robert A. Butterworth, Atty. Gen., Carolyn J. Mosley, Asst. Atty. Gen., Tallahassee, for appellee.
CORRECTED OPINION
Sua sponte, we withdraw our earlier opinion filed July 19, 1991, and substitute the following therefor.
NIMMONS, Judge.
The appellant was convicted of second degree murder (a lesser offense of the first degree murder charged in Count I), attempted murder of a law enforcement officer (as charged in count III), and aggravated assault (a lesser offense of the attempted murder of a law enforcement officer charged in count IV).
On this direct appeal, among appellant‘s contentions is that
(3) Notwithstanding the provisions of any other section, any person who is convicted of attempted murder of a law enforcement officer engaged in the lawful performance of his duty or who is convicted of attempted murder of a law enforcement officer when the motivation for such attempt was related, all or in part, to the lawful duties of the officer, shall be guilty of a life felony, punishable as provided in s. 775.0825.
Appellant contends that the statute is vague in that it fails to state whether the statute requires a showing that a defendant have knowledge that the victim was a law enforcement officer.
As can be seen, the statute applies (1) when the officer was engaged in the lawful performance of his duty, or (2) when the motivation for the attempt was related, all or in part, to the lawful duties of the officer. Unlike the related offense of assault or battery on a law enforcement
Florida courts have long adopted the Connally rule from Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) which requires that a penal statute
must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and 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.
See State v. Hagan, 387 So.2d 943, 945 (Fla. 1980).
With respect to the offense described in alternative # 1 of the statute, it is clear that there is no vagueness insofar as any scienter requirement. The statute simply does not require that the offender have knowledge that the victim was a law enforcement officer. This is certainly not surprising. In modern day law enforcement, particularly with the high incidence of drug trafficking in today‘s culture, it is frequently necessary for law enforcement officers to operate undercover and to ostensibly cooperate with the criminal element. The Legislature apparently determined that one who attempts to murder an undercover officer should be dealt with as severely as one who attempts to murder a uniformed officer. Criminals know that the possibility always exists that those with whom they ply their felonious trade may be undercover police officers. On this theme, we note that the Legislature recently expressed an intent to provide law enforcement officers with the “greatest protection which can be provided through the laws of this state” because of their exposure to great risk of violence. Chapter 89-100, section 2, Laws of Florida.
The knowledge element which has been excluded relates solely to the status of the victim. Such exclusion does not render the statute vulnerable to the kind of attack leveled by this appellant. See Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957).
With respect to violations committed in the manner described in alternative # 2, i.e., when the motivation for the attempt was related, all or in part, to the lawful duties of the officer, it may well be that this method of violation necessarily requires knowledge that the victim is a law enforcement officer. One scenario would be where the offender attempts to murder an officer, who was not then engaged in the performance of his duties, in order to “get even” with the officer for the latter‘s earlier enforcement of the law against the offender. However, just because alternative # 2 may require such scienter does not mean that alternative # 1 requires it. Both alternative methods of violation have what appear to be readily understandable fields of play and are not afflicted with constitutional vagueness.
But, appellant further contends that the statute is fatally vague because it is not clear whether the statute, in referring to “murder,” refers to all degrees of murder. This court has recently had occasion to consider such contention and rejected same. Nephew v. State, 580 So.2d 305 (Fla. 1st DCA 1991). There is nothing vague about the term “murder” in the subject statute. The term is, of course, defined elsewhere in the Florida Statutes, specifically Chapter 782. Appellant contends that there are different types of murder with varying penalties and different types of attempted murder, likewise with varying penalties, and that due to such
It is true that, under current law, a person convicted of third degree murder of a law enforcement officer would receive a less severe sentence than one convicted of attempted murder of an officer under
We have examined the other issues raised by appellant and find them to be without merit.
AFFIRMED.
SMITH, J., concurs.
ZEHMER, J., concurs with written opinion.
ZEHMER, Judge (Concurring).
While I concur with Judge Nimmons‘s opinion, I do so with substantial reservation. I am unable to agree that the use of the term “murder” in the subject statute is not inherently vague and ambiguous, but I do not believe this deficiency rises to the level of constitutional infirmity.
The use of “attempted murder” in
Traditionally, the law of this state has not recognized any crime known simply as “murder” or “attempted murder” without specifying the degree thereof, and it does not do so today unless
In any event,
Nevertheless, I join in affirming the conviction and decline to hold the statute facially invalid on constitutional grounds because I believe that at the very least the statute puts one on notice that attempting to unlawfully kill a law enforcement officer is a criminal offense punishable as a life felony. Since the circumstances of this offense do not involve the elements of “attempted third degree murder” of a law enforcement officer, I conclude that we are not required to consider any potential constitutional infirmity based on an illogical scheme to punish for attempted murder at a significantly greater level than for third degree murder.
ON MOTION FOR REHEARING AND/OR CERTIFICATION, DENIED
PER CURIAM
The appellant‘s motion for rehearing and/or certification is denied.
SMITH, J., concurs.
WENTWORTH, Senior Judge, concurs, participating upon assignment after oral argument, in substitution for NIMMONS, J.
ZEHMER, J., concurs and dissents with written opinion.
ZEHMER, Judge (concurring and dissenting).
I concur in the decision to deny appellant‘s motion for rehearing. I do not join in denying the motion for certification in the following respect. Appellant‘s motion seeks certification of four questions to the supreme court as questions of great public importance. In view of the concerns expressed in my special concurring opinion, I believe it is most appropriate to certify the first question set forth in the motion:
WHETHER FLORIDA STATUTES, SECTION 784.07(3) CREATES A NEW, SUBSTANTIVE OFFENSE, OR IS ONLY A RECLASSIFICATION STATUTE WHICH INCREASES THE PENALTIES FOR ATTEMPTED VIOLATIONS OF SECTION 782.04 WHEN THE VICTIM IS A LAW ENFORCEMENT OFFICER?