CopyCited 50 times | Published | Supreme Court of Florida
...Gen., Miami, for respondent. McDONALD, Judge. Trushin petitions for review of a district court decision, reported at
384 So.2d 668 (Fla. 3d DCA 1980), which affirmed his conviction of vote buying and construed and passed on the constitutionality of subsection
104.061(2), Florida Statutes (1977)....
...Mapp, in the upcoming runoff election, I will prepare a Last Will and Testament for that person without charge. [3] He was charged by information with both promising something of value with the intent *1128 to buy votes and corruptly influencing voting under subsection 104.061(2)....
...uilt beyond a reasonable doubt." The court denied both motions. Then, before the court announced its verdict, the following dialogue occurred: MR. COHEN [defense counsel]: May it please the Court, I now ask that the state elects to which portion of [104.061(2)] they are referring to....
...to another, intending thereby to receive his vote to support candidates Judge Barad and Judge Mapp. The court then adjudicated Trushin guilty of vote buying. Trushin moved for a new trial at which time he first challenged the constitutionality of subsection 104.061(2). He alleged no specific grounds as the basis for this challenge, and the trial court denied the motion. [6] District Court Appeal On appeal to the Third District Court of Appeal Trushin charged that: 1) the term "anything of value" in subsection 104.061(2) is unconstitutionally vague; 2) subsection 104.061(2) is unconstitutionally overbroad; 3) the evidence was insufficient to convict because the state failed to prove that the promisee was a registered voter, that the will was "anything of value," and that Trushin had the requisite crim...
...at the subsection is not unconstitutionally vague or overbroad, that proof of a registered voter-promisee and knowledge of the law are not elements of the crime, and that the will in this case is something of "value" for purposes of subsection *1129
104.061(2). [9] The district court certified the case to this Court as "involving issues of great public importance concerning the validity and interpretation of §
104.061(2)."
384 So.2d at 679 n....
...om the provisions of the statute, makes the statute irrational, thereby violating the equal protection provisions of the state and federal constitutions; 2) The terms "anything of value," "corruptly," and "influence" are unconstitutionally vague; 3) Section 104.061(2) is unconstitutionally overbroad; 4) The trial court should have granted a judgment of acquittal because the state failed to prove Trushin's knowledge that any promisee was a registered voter, or that he offered "anything of value";...
...Therefore, we will exercise our jurisdiction and discuss the certified issues. We repeat that the decision of the district court is well reasoned and thorough and requires little elaboration. Trushin alleges that the terms "anything of value," "corruptly," and "influence" found in subsection 104.061(2) are unconstitutionally vague....
...It is well within the prerogative of the legislature to proscribe such an act, and by using the term "anything of value" the emphasis of the statute is on the act rather than on the consideration given in return for the act. Therefore, the term "anything of value" does not render subsection 104.061(2) void for vagueness. Trushin's third issue alleges that subsection 104.061(2) is unconstitutionally overbroad because it criminalizes behavior which is protected by the first amendment to the United States Constitution and by article I, sections 4 and 9 of the Florida Constitution....
...In Brown the Supreme Court interpreted a Kentucky statute dealing with illegal activities of candidates for political office. While the court found the Kentucky statute unconstitutionally restrictive on the candidates' first amendment right of free speech, Brown has limited application to the instant case. [11] Subsection 104.061(2) is not as restrictive on first amendment rights as the Kentucky statute in Brown and has as its purpose the prevention of corrupt elections....
...Thus the statute, forbidding acts intended to condition another's vote upon the receipt of a personal benefit, is plainly and properly designed only to preserve the sanctity of the ballot.
384 So.2d at 674 (footnotes omitted, emphasis in original). In this Court Trushin pursues his constitutional attack on section
104.061 by claiming that the statute is contrary to the equal protection clause of the constitution....
...alleges that the state must prove that the promisee is a registered voter and that drawing a will is "something of value." The district court has properly analyzed these issues. As for the allegation that the promisee must be a registered voter, subsection 104.061(2) speaks only of influencing or buying "another's" vote. It does not require that the other person be a registered voter. Support for this is found in subsection 104.061(1), where the term "elector" is used. Had the legislature intended subsection 104.061(2) to apply to only electors (registered voters) it could have carried that term from subsection (1) to subsection (2)....
...Mapp, in the upcoming runoff election, I will prepare a Last Will and Testament for that person without charge. My office is located across the street on the mezzanine floor of the Holiday Inn, in Suite M-101. Thank you. Sincerely, /s/ Theodore M. Trushin THEODORE M. TRUSHIN TMT/hc NOTES [1] § 104.061, Fla....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2002 WL 31833714
...eceive, or deter, directly or indirectly, by bribery, menace, threat, or other corruption, electors Williams on March 12, 1999; and Youman on March 11, 1999 (Counts II & VI, respectively), in the free exercise of their right to vote, in violation of section 104.061, Florida Statutes (1999); 3) by false swearing between February 1 and March 11, 1999, by procuring Onterrio Ward to swear or affirm falsely to an oath or affirmation in connection with or arising out of voting or elections (Count III)...
...causing such other person to vote for, or not vote for, any candidate for any office at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate. §
104.0515(3), Fla. Stat. (1999). Section
104.061 states in pertinent part: Whoever by bribery, menace, threat, or other corruption whatsoever, either directly or indirectly, attempts to influence, deceive, or deter any elector in voting or interferes with him or her in the free exercise of the elector's right to vote at any election commits a felony of the third degree, .... §
104.061(1), Fla. Stat. (1999). One motion to dismiss sought a declaration that section
104.061 is unconstitutional because the term "menace" is vague and overbroad unless its meaning, in the statute and as-applied, is the same as "threat." Another motion alleged that both statutes improperly prohibit acts that are protected by the Voting Rights Act of 1965. See 42 U.S.C. § 1971(b). Yet another motion sought a declaration that section
104.061 is unconstitutional because the terms *906 "threat" and "other corruption," as well as "menace," are vague and ambiguous....
...Specifically, counsel contended that it is perfectly lawful to exercise free-speech rights to attempt to influence electors in their voting, and that these statutory provisions, if enforced, "would virtually outlaw most if not all politicking." The defense found no vagueness problem with "other corruption whatsoever" in section 104.061(1), so long as the words are construed as offering something of value in exchange for a commitment to vote....
...Counsel argued that "intimidate" involves "a very nebulous concept" and that section
104.0515 fails to provide guidance as to what the Legislature intended to define as unlawful or criminal intimidation, threat, or coercion. The defense reiterated its positions that "menace" in section
104.061 is vague and overbroad and that the statute fails to provide adequate notice as to what conduct is proscribed....
...e bears the burden of demonstrating that it is invalid." Hudson v. State,
825 So.2d 460, 465 (Fla. 1st DCA 2002). For the reasons that follow, we conclude that Appellant has failed to carry his burden of demonstrating that either section
104.0515 or section
104.061 is unconstitutional, facially or as-applied....
...In summary, the words in question "convey[] a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." Hagan,
387 So.2d at 945. Accordingly, Appellant has not demonstrated a problem with vagueness in either section
104.0515 or section
104.061, facially or as-applied....
...with the other person's right to vote or not to vote, or for the purpose of causing the other person to vote or not to vote for any candidate for any office in any election held for the purpose of selecting or electing any such candidate. Similarly, section 104.061(1) criminalizes the use of bribery, menace, threat, or other corruption, whether direct or indirect, in an attempt to influence, deceive, or deter any elector in voting or to interfere with the elector in the free exercise of the elector's right to vote at any election....
CopyCited 4 times | Published | Florida 3rd District Court of Appeal
...Black, Miami, for appellant. Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee. Before BARKDULL, HENDRY and SCHWARTZ, JJ. SCHWARTZ, Judge. After a non-jury trial, Theodore M. Trushin was found guilty of a violation of that portion of Section 104.061(2), Florida Statutes (1977) which makes it a felony to "directly or indirectly ......
...Upon the conclusions that the statute is constitutional and that the state's case established its violation by the defendant, we affirm the judgment under review. I Facts and Proceedings Below Trushin was charged in a one-count information which, although captioned as one for "corruptly influencing voting under § 104.061," alleged a violation only of subsection (2) of that statute....
...al circulation of the letter. He stated that he had indeed signed the letter [3] *672 and authorized [4] its distribution to the occupants of the Roney Plaza Apartments. The defendant stated that, at the time, he had no idea even of the existence of § 104.061(2) or the possibility that there was anything otherwise wrong with an offer to perform legal services in return only for pledging to vote for a judicial candidate....
...ill to another, intending thereby to receive his vote to support candidates Judge Barad and Judge Mapp." Trushin was subsequently adjudicated guilty and sentenced to serve 60 days in the county jail. This appeal followed. II The Constitutionality of § 104.061(2) The defendant's first point claims that § 104.061(2) is facially unconstitutional on grounds of vagueness and impermissible overbreadth....
...2d DCA 1980), and cases cited. We hold, however, that the statute is not in fact vulnerable to either of the constitutional attacks made upon it, and that it is therefore indeed valid and enforceable. *673 1. Statute not Vague. Trushin's first contention is that § 104.061(2) is void for vagueness....
...Leader,
370 So.2d 3, 5-6 (Fla. 1979); Swinney v. Untreiner,
272 So.2d 805 (Fla. 1973), cert. denied,
413 U.S. 921,
93 S.Ct. 3064,
37 L.Ed.2d 1043 (1973). 2. Statute not Unconstitutionally Overbroad. The appellant's far more substantial challenge to §
104.061(2) is that it is facially overbroad [13] on the grounds that it criminalizes behavior which is protected by the first amendment to the United States Constitution and by Article I, Sections 4 and 9 of the Florida Constitution. [14] His precise *674 claim to this effect is that §
104.061(2) invalidly proscribes such common, ordinary, and presumably protected election activity as the distribution of matchbooks, pencils, or other items of some small but discernable value, the provision of rides to the polls, and even the making of a campaign promise to lower taxes....
... which the state has a manifest right to regulate and does not in fact forbid any activity or conduct which is protected by the constitution. In approaching this issue, we are aware both that any legitimate doubts as to the proper construction of § 104.061(2) are to be resolved so as to preserve its constitutionality, White v....
...You have merely chosen to distribute an item somewhat unique to Florida political campaigns. But uniqueness does not eliminate it as a permissible campaign device. It should be cautioned however that such blimps, or any item of value, may not be given by a candidate in exchange for one's vote. s. 104.061(2), F.S....
...ign button or piece of campaign literature." Id. (e.s.) [19] This 1966 opinion was reaffirmed by the Attorney General in a June 12, 1975 informal opinion to John Lloyd, then General Counsel of Broward County, which considered the current language of s. 104.061(2), F.S....
...infringing upon a candidate's freedom of expression. [e.s.] Trushin contends that we should follow the original decision of the court, the opinion of Justice Calogero at
328 So.2d 111 which became the dissent, because, unlike the Louisiana statute, §
104.061(2) does not refer in so many words to "bribery." We think this fact has exactly the opposite effect....
...e and insertion since the legislature itself specifically provided the validating language. [22] If the Louisiana statute has been rendered valid by the limiting judicial construction of the Louisiana Supreme Court, see Broadrick v. Oklahoma, supra, § 104.061(2), which itself tracks that narrowing language, is all the more obviously so. III The Sufficiency of the Evidence: the Elements of the Offense Trushin alternatively contends that the evidence was insufficient to establish each of the essential elements of the offense prohibited by § 104.061(2). Again, we disagree. § 104.061(2) states simply that "[n]o person shall directly or indirectly give or promise anything of value to another intending thereby to buy his or another's vote or to corruptly influence him or another in casting his vote." The essential elemen...
...the bribe [was] offered,"
277 So.2d at 5, Trushin contends that proof that the person to whom an unlawful promise is made is a registered or eligible voter that is that he could lawfully vote is an essential element of the crime proscribed by §
104.061(2)....
...[24] Section 838.011 applied, by its express terms, only to persons who made corrupt payments or offers "to any public officer" [e.s.]. Thus, the element that the offeree be such a public officer was required by the statute itself. [25] In direct contrast, § 104.061(2) requires only that the corrupt transfer or promise be made to "another." Cf. State v. Canova, 278 Md. 483, 365 A.2d 988 (1976). Even more pointedly, "another" is used instead of the term "elector" a legally registered voter which is specifically employed in § 104.061(1) (forbidding improper influence upon "any elector") and was contained in the now-repealed Section 99.172, Florida Statutes (1977) (forbidden to give or promise anything of value "to any elector"). We must conclude that by using "another," rather than "elector" or "registered voter" either of which would have been the equivalent of "public officer" in § 833.011 the legislature specifically meant not to include that element in § 104.061(2)....
...y registered. [e.s.] See also State v. McCrocklin, 186 Ind. 277, 115 N.E. 929 (1917) (immaterial whether bribee actually voted in election). We find support for our conclusion that the legality of the vote sought to be purchased is not an element of § 104.061 in State v....
...dbill, but do not merit his conviction of a felony. We do not agree with such a characterization of the defendant's conduct. The "bottom line" is that he offered to purchase votes in return for services rendered. One need not be a lawyer or aware of § 104.061(2) to know that it is wrong to try to pervert the electoral process in this way. The legislature rightly forbids this conduct; and Trushin was rightly convicted of violating its command. Affirmed. [28] NOTES [1] Section 104.061, Florida Statutes (1977) provides, in its entirety: 104.061 Corruptly influencing voting....
...n such an undertaking are immunized by the first amendment. See Tipton v. Sands, 103 Mont. 1, 60 P.2d 662 (1936); People v. Hochberg, 62 App.Div.2d 239, 404 N.Y.S.2d 161, 168 (1978). [18] Prior to 1965, the pertinent statutes, Sections 99.172(3) and 104.061 Florida Statutes (1963), prohibited giving or promising anything of value "in the furtherance" of a candidacy....
...Fla. 051-421 (November 23, 1951); 1951 Op.Att'y Gen.Fla. 051-471 (December 19, 1951). There is an obvious and compelling distinction between this language (of highly dubious constitutionality) and the specific requirement in the present version of § 104.061(2), of an intent to corruptly influence or to "buy a vote" that is, to exchange a vote as the quid pro quo or the consideration for furnishing something of value in return. [19] This opinion concluded: [I] would be inclined toward the position that under the provisions of §§ 99.172 and 104.061, F.S., as amended, it was the intent of the legislature to allow candidates to give away such items as matchbooks, pencils, blotters, balloons, combs and other nominal cost items in promoting their candidacy so long as such give aways are not in exchange for a vote. [e.s.] [20] In arguing to the contrary, the appellant points to the proviso which states that § 104.061(2) "shall not apply to the serving of food to be consumed at a political rally or meeting." It is suggested that this specific exemption (which was transferred from Section 99.172, Florida Statutes (1975), when that statute was repealed by Ch....
...[25] Nell also held that the "matter sought to be influenced must be within the scope of an officer's legal duties."
277 So.2d at 4. Whatever the merits of this conclusion, see State v. Napoli, supra, n. 23, it was also based upon language in Section 838.011, Florida Statutes (1973) which has no equivalent in §
104.061(2)....
...1st DCA 1980) (crime to "endeavor" to traffic in stolen property which is not in fact stolen). [28] We have determined to certify this case to the supreme court as one involving issues of great public importance concerning the validity and interpretation of § 104.061(2).
