State v. CudaState v. Cuda
We have consolidated these two appeals because they have as a common issue the determination by the respective trial courts that
To punish those who would exploit the impaired elderly citizens of this state by diverting those elderly persons’ funds for their own purposes and profit, the legislature enacted the following statutory provisions that were considered by the trial courts in the instant cases:
A person who knowingly or willfully exploits an aged person ... by the improper or illegal use or management of the funds, assets, property, power of attorney, or guardianship of such aged person ... for profit, commits a felony of the third degree....
“Aged person” means a person sixty years of age or older who is suffering from the infirmities of aging as manifested by organic brain damage, advanced age, or other physical, mental, or emotional dysfunctioning to the extent that the person is impaired in his ability to adequately provide for his own care or protection.
“Exploitation” means, but is not limited to, the improper or illegal use or management of an aged person‘s or disabled adult‘s funds, assets, or property or the use of an aged person‘s ... power-of-attorney or guardianship for another‘s or one‘s own profit or advantage.
The trial courts focused upon the words “improper or illegal” to find
The only reported case construing
We agree with the trial courts in the instant appeal that the legislature‘s choice of the word “improper” to describe the activity incurring criminal liability was poor. The use of the word in the statute does not provide a sufficiently definite warning of the proscribed conduct. A fiduciary of a protected person‘s assets who is paid for and renders services with the best of honest and faithful intentions could be exposed to prosecution under the statute for investment decisions or oversights that were later found to be unwise. We do not believe that the statute was meant to apply to those situations. The statute‘s use of the word “improper” leaves such fiduciaries and others “of common understanding and intelligence [guessing] at its meaning.” State v. Rodriquez, 365 So.2d 157, 159 (Fla. 1978). We therefore agree with the trial courts that the word “improper” as it is used in this statute is unconstitutionally vague.
The appellees argue in support of the dismissals of the charges against them that the word “illegal” is also unconstitutionally vague, and they rely primarily on three cases: Rodriquez; Locklin v. Pridgeon, 158 Fla. 737, 30 So.2d 102 (Fla. 1947); and K.L.J. v. State, 581 So.2d 920 (Fla. 1st DCA 1991). In Locklin, the supreme court found unconstitutionally vague a statute which made it unlawful for a public employee to act in a manner not authorized by law. The court noted:
Under the provisions of this Act, an officer or an employer is just as amenable to prosecution for an act done in good faith, when that act is not specifically authorized by law, as he would be for the commission of an act done with evil intent and willfully done in violation of the law. So the determination of a standard of guilt is left to be supplied by courts or juries. This is an unconstitutional delegation of legislative power.
30 So.2d at 103. In the instant case, the statute in question (excluding the word “proper“) requires the performance of an illegal act for the purpose of profiting from it. Unlike the statute in Locklin, it does not proscribe acts which, while done in good faith, are not specifically authorized. The statute rather punishes only those who illegally use or manage an aged person‘s property with the intent of profiting from the violation.
In Rodriquez, the supreme court upheld a statute which made it a crime to use food stamps “in any manner not authorized by law.” The court distinguished its earlier Locklin decision by noting that the term “in any manner not authorized by law” referred only to violations of state and federal food stamp law. The court found that the statute making it a crime to use food stamps in a manner not authorized by the food stamp laws was sufficiently definite to inform the defendant that his conduct in selling non-food items for food stamps was proscribed. In the instant case we find the law in question is sufficiently definite. It proscribes the illegal use or management of an aged person‘s funds with the intent to profit thereby.
The final case appellees rely on in arguing that the term “illegal” is vague is K.L.J. v. State, 581 So.2d 920 (Fla. 1st DCA 1991), in which the First District found a curfew ordinance for minors, which contained an exception for minors on “legitimate business,” under the age of sixteen, to be unconstitutionally vague and over-broad. The term “legitimate business,” however, cannot be fairly analogized to the word “illegal.” Determining what constitutes “legitimate business,” like determining what is “proper,” involves essentially a subjective analysis which is likely to differ from person to person. The word “illegal“, in contrast, involves the more objective criteria of any behavior that is proscribed by law. In Gates v. Chrylser Corp., 397 So.2d 1187, 1190 (Fla. 4th DCA 1981), the court defined “illegal act,” as that term is used in
SEVERABILITY
It is the duty of this court when reasonably possible to construe a statute to avoid a conflict with the federal and state constitutions. Rodriquez, 365 So.2d at 158 (“When reasonably possible and consistent with protection of constitutional rights, [the supreme court] will resolve all doubts as to the validity of a statute in favor of its constitutionality.“); Schultz v. State, 361 So.2d 416, 418 (Fla. 1978). In construing a statute as constitutional, the court cannot rewrite the statute. Neither are courts at liberty to supply deficiencies or undertake to make a vague statute definite and certain. State ex rel. Lee v. Buchanan, 191 So.2d 33, 36 (Fla. 1966). Courts have no power to define a crime differently than does the statute. Jackson v. State, 515 So.2d 394 (Fla. 1st DCA 1987), approved, 526 So.2d 58 (Fla. 1988).
While judicial rewriting is prohibited, offending or meaningless words in a statute have been excised to preserve the constitutionality of a statute. In State v. Reese, 222 So.2d 732 (Fla. 1969) the supreme court considered the constitutionality of Florida‘s obscenity statute,
The elimination of the word “immoral” would not interfere with the operation of the remainder of the statute, and it cannot be said that the legislature would not have enacted the statute had it known that this word would be deleted. Accordingly, the word “immoral” is severable and should be deleted.
The supreme court in Schmitt v. State, 590 So.2d 404 (Fla. 1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1572, 118 L.Ed.2d 216, 60 U.S.Law Weekly 3674 (U.S.Fla. Mar. 30, 1992), affirmed the Fourth District‘s determination that
Both this court in Tirohn and the supreme court in Schmitt applied the four-part test of Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828, 830 (Fla. 1962) in order to determine if unconstitutional subunits of the statute are severable. The Cramp test requires the following consideration:
When a part of the statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.
Waldrup v. Dugger, 562 So.2d 687, 693 (Fla. 1990) (quoting Cramp, 137 So.2d at 830).
We apply the Cramp test to
(1) Separation of unconstitutional provisions from the remaining valid provisions. We find that deletion of the words “improper or” from
(2) Accomplishment of legislative purpose. The legislative purpose of the section as well as Chapter 415, the Adult Protective Services Act, is set forth in
(3) Inseparability of good and bad features. The deletion has no effect upon this standard.
(4) Complete act. A complete act remains after the minor deletion that directly outlaws financial exploitation of the aged persons in a way that harmonizes with the Adult Protective Services Act.
After applying the Cramp test, we find that the word “improper” is severable from
We vacate the dismissals of the charges against the defendants and remand for further proceedings.
DISMISSALS VACATED; CAUSE REMANDED.
GOSHORN and THOMPSON, JJ., concur.