Roque v. StateRoque v. State
- Reporters:
- ,
- Before:
- Shaw, Grimes, Overton, Kogan, Wells, Anstead, Harding
We have for review State v. Roque, 640 So.2d 97 (Fla. 3d DCA 1994), wherein the district court declared section 838.15, Florida Statutes (Supp. 1990), valid. We have jurisdiction.
Robert Roque was credit manager for Kelly Tractor Company and as part of his job extended credit to organizations seeking to finance construction equipment. Mr. Smith, an independent contractor, worked with Roque in locаting suitable candidates for loans and was paid a commission by Kelly Tractor for each good prospect he recruited. The State alleged that Roque entered into an unauthorized side agreement with Mr. Smith wherein Smith paid Roque between thirty-three and forty percent of each commission as a “payback” on dеals entered into between October 1, 1990, and June 30, 1991.
The State contends that section 838.15 is neither vague nor susceptible to arbitrary application, is expressly limited to commercial transactions, clearly states what act is prohibited, specifically enumerates the business relationships to which it applies, and contains an adequate standard of guilt. Wе disagree.
Section 838.15 bans commercial bribe receiving and provides in full:
838.15 Commercial bribe receiving. —
(1) A person commits the crime of commercial bribe receiving if the person solicits, accepts, or agrees to accept a benefit with intent to violate a statutory or common law duty to which that person is subject as:
(a) An agent or employee of another;
(b) A trustee, guardian, or other fiduciary;
(c) A lawyer, physician, accountant, appraiser, or other professional adviser;
(d) An officer, director, partner, mаnager, or other participant in the direction of the affairs of an organization; or
(e) An arbitrator or other purportedly disinterested adjudicator or referee.
(2) Commercial bribe receiving is a third degreе felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
We have declared similar statutes invalid on various grounds:1 Some were impermissibly vague2 or were subject to arbitrary application.3 The present statute suffers from similar ills.
As noted above, section 838.15 makes it a third-degree felony for an “employee” to accept a benefit in return for violating a “common law duty.” Few workers in Florida, however, are aware that they owe such a “common law duty” to their employers and fewer still could define the dimensions of that duty. In fact, substantial legal research would be rеquired by many employees to determine their obligations under the law.
By the terms of this act every ... employee ... is required to determine at his peril what specific acts are authorized by law and what are not authorizеd by law. Honest and intelligent men may reasonably have contrary views as to whether or not a specific act ... is or is not authorized by law and, therefore, the violation or non-violation of this statute may reasonably depend upon which view the court or a jury may agree with.
Locklin v. Pridgeon, 158 Fla. 737, 742, 30 So.2d 102, 105 (1947). The statute “is too vague to give men of common intеlligence sufficient warning of what is corrupt and outlawed.” State v. DeLeo, 356 So.2d 306, 308 (Fla. 1978).
Further, by its plain language the statute proscribes every violation of an employee‘s
While some discretion is inherent in prosecutorial decision-making, it cannot be without bounds. Thе crime defined by the statute ... is simply too open-ended to limit prosecutorial discretion in any reasonаble way. The statute could be used, at best, to prosecute, as a crime, the most insignificant of transgressions or, at worst, to misuse the judicial process... .
DeLeo, 356 So.2d at 308 (footnote omitted). Section 838.15 invites arbitrary application of the law.
Based on the foregoing, we find section 838.15, Florida Statutes (Supp. 1990), invalid. We quash Roque.
It is so ordered.
GRIMES, C.J., and OVERTON, KOGAN, WELLS and ANSTEAD, JJ., concur.
HARDING, J., concurs in result only.