State v. AyersState v. Ayers
STATE of Florida, Appellant,
v.
Thomas E. AYERS, Appellee.
STATE of Florida, Appellant,
v.
Colleen TRAVERSA, Appellee.
Kathleen Ruth HAMMOND, Appellant,
v.
State of Florida, Appellee.
Alma E. MOULTON, Appellant,
v.
State of Florida, Appellee.
District Court of Appeal of Florida, Second District.
*297 Rоbert A. Butterworth, Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Appellant State in Ayers and Traversa cases.
Judith Ellis, St. Petersburg, for Appellant Hammond.
Robert E. Jagger, Public Defender, and Jean M. Higham and Wayne R. Coment, Assistant Public Defenders, Clearwater, for Appellant Moulton.
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Assistant Public Defender, Clearwater, for Appellees Ayers and Traversa.
Robert A. Butterworth, Attorney General, Tallahassee, and Helenе S. Parnes, Assistant Attorney General, Tampa, for Appellee State in Hammond and Moulton cases.
ALTENBERND, Judge.
The four cases we have consolidated for purposes of this opinion all involve the constitutionality of section 827.05, Florida Statutes (1993). That statute attempts to create a misdemeanor criminal offense prоscribing negligent treatment of children. With the same misgivings recently expressed by the Fourth District in State v. Mincey,
Colleen Traversa, Thomas E. Ayers, Kathleen Hammond, and Alma E. Moulton were each charged with child abuse under this statute. Judge Karl B. Grube dismissed the charges against Ms. Traversa and Mr. Ayers because he found the statute unconstitutional. Ms. Hammond and Ms. Moulton were convicted by courts that upheld the constitutionality of the statute.[1]
In case number 94-03263, the state charged Mr. Ayers with child abuse as a result of his behavior while baby-sitting two small children. The state alleged that while Mr. Ayers was asleep on the couch, the two unsupervised children were playing outside in the rain. A neighbor who observed the children called the police. Mr. Ayers told the officers that he did not feed the children during the two to three hours he had been baby-sitting. The children were wet and soiled. The officers observed that the children's cribs were broken and unsafe, their mattresses were soiled, and there was no food or formula in the apartment. Mr. Ayers' attorney successfully moved to dismiss the charges on the ground that the statute was unconstitutional.
In case number 94-03325, Ms. Traversa was charged with illegally neglecting her two small children. The police officer and the HRS official who investigated her apartment observed that the home was dirty and in disarray. Upon entering the apartment, they observed a strong, foul smell emanating from a cat litter box. Throughout the apartment they smelled urine. The officials also observed that one child's hair contained lice eggs. Ms. Traversa's attorney also successfully moved to dismiss the charges.
In case number 95-01587, the state charged Ms. Hammond with abusing her three-year-old daughter. The child was observed unsupervised for an hour, wandering in a park wearing only her underwear. A neighbor called the police, who located Ms. Hammond. Ms. Hammond appeared intoxicated *298 and did not know that her child had been missing. Ms. Hammond pleaded nolo contendere to the charge and reserved her right to appeal the constitutionality of the statute. The court withheld adjudication, placed her on six months' probation, and ordered her to рay $150 in court costs.
In case number 95-00778, Ms. Moulton was charged with abusing her two children. At trial, an HRS investigator and a police officer testified that they conducted an invеstigation of Ms. Moulton's home. They observed that the apartment was infested with roaches, trash flowed out of the garbage cans, and the home was dirty and in disarray. Thе mattresses and pillows were also soiled. Ms. Moulton's three-year-old child was wearing a soiled diaper filled with fecal matter. The jury found Ms. Moulton guilty of child abuse. The trial court adjudicated her and placed her on six months' probation. She was ordered to pay $150 in court costs.
Section 827.05 attempts to create а second-degree misdemeanor punishing a person who negligently deprives a child of necessary food, clothing, shelter, or medical treatment when finanсially able to provide this necessary care, if such deprivation causes the child's physical or emotional health either to be significantly impaired or to be in danger of such impairment.[2] This crime is distinct from section 827.04(2), Florida Statutes (1993), a first-degree misdemeanor punishing culpable negligence that causes similar deprivations.[3]
The supreme court declared the 1975 version of section 827.05 unconstitutional in State v. Winters,
Although we follow Winters in this context, we note that оther state courts have upheld the constitutionality of similar legislative enactments. See People v. Noble,
We affirm the dismissals in Ayers and Traversa, and reverse the convictions and sentences in Hammond and Moulton.
PARKER, A.C.J., and QUINCE, J., concur.
NOTES
Notes
[1] We have jurisdiction to review the county court orders of dismissal because they declared section 827.05, Florida Statutеs (1993), unconstitutional. Art. V, § 4(b)(1), Fla. Const.; § 26.012(1), Fla. Stat. (1993);
[2] The statute provides:
Whoever, though financially able, negligently deprives a child of, or allows a child to be deprived of, necessary food, clothing, shelter, or medical treatment or permits a child to live in an environment, when such deprivation or environmеnt causes the child's physical or emotional health to be significantly impaired or to be in danger of being significantly impaired shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
§ 827.05, Fla. Stat. (1993).
[3] That statute provides:
Whoever, willfully or by culpable negligence, deprives a child of, or allows a child to be deprived of, nеcessary food, clothing, shelter, or medical treatment, or who, knowingly or by culpable negligence, inflicts or permits the infliction of physical or mental injury to thе child, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
§ 827.04(2), Fla. Stat. (1993).
[4] Colorado's statute provided:
A person commits child abuse if he knowingly, intentionally, or negligently, and without justifiable excuse, causes or permits a child to be: (a) Placed in a situation that may endanger the child's life or health; or (b) Exposed to the inclemency of the weathеr; or (c) Abandoned, tortured, cruelly confined, or cruelly punished; or (d) Deprived of necessary food, clothing, or shelter.
[5] New Mexico's statute provided:
Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in a situation that may endanger the child's life or health; (2) tortured, cruelly confined or cruelly punished; or (3) exposed to the inclemency of the weather.
[6] South Carolina's statute provided:
Any person having the legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect to provide the proper care and attention for such child or helpless person, so that the life, health or comfort of such child or helpless person is endangеred or is likely to be endangered, shall be guilty of a misdemeanor and shall be punished within the discretion of the court.
South Carolina's statutes also state that harm to а child's health or welfare can occur when "the parent, guardian or other person responsible for [the child's] welfare ... fails to supply the child with adequate food, clothing, shelter, education... or health care though financially able to do so or offered financial or other reasonable means to do so."