CopyCited 2 times | Published | Florida 5th District Court of Appeal | 2008 WL 817106
...Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee. COHEN, J. Douglas Guetzloe appeals the denial of two motions to dismiss an amended information charging Guetzloe with 14 counts of violating section 106.1439, Florida Statutes (2004), Florida's Electioneering Communication Statute....
...edge or consent of the candidates. [1] Following the election, the disclosure form required by section
106.071 was filed identifying Guetzloe as the source of the mail-out. Procedural History The State charged Guetzloe with 14 counts of violation of section
106.1439, each a misdemeanor of the first degree....
...Pursuant to Florida Rule of Appellate Procedure 9.160, Guetzloe moved for entry of an order certifying questions of great public importance. The county court, in and for Orange County, granted that motion, certifying two questions of great public importance; 1. Whether Section 106.1439, Florida's Electioneering Communication Statute, is not [sic] an overbroad restriction against anonymous political speech. 2. Whether Section 106.1439 allows the State to charge separate counts for each person to whom an electioneering communication is addressed, mailed, and received. This court granted certification. On appeal, Guetzloe challenges the constitutionality of the statute, in toto. Analysis For the reasons set forth below, we restate the first question presented. Section 106.1439(1) provides: *1147 Any electioneering communication shall prominently state: "Paid electioneering communication paid for by (Name and address of person paying for the communication)." At issue is whether the "name and address" mandat...
...A communication is considered targeted if 1,000 or more persons in the geographic area the candidate would represent if elected will receive the communication. It is undisputed that Guetzloe's mail-out met the statutory definition and constituted an electioneering communication. We find the disclosure requirements of section 106.1439 are severable and Guetzloe can be prosecuted for his failure to include "paid electioneering communication" on the mail-out....
...olitical advertisement" in no way violated the right to engage in anonymous political speech. There is no substantive difference between the phrase "paid political advertisement," approved in Mortham, and "paid electioneering communication" found in section 106.1439(1). The disclaimer requirement in the instant case does not violate First Amendment principles. Accordingly, Guetzloe was required under section 106.1439 to disclose that the mail-out was a "Paid electioneering communication," and failure to do so subjected him to prosecution. The State did not pursue prosecution for Guetzloe's failure to disclose his identity on the mail-out. Having found the statutory provisions severable, we do not need to reach the constitutionality of the "name and address" provision within section 106.1439. Guetzloe next argues that section 106.1439 allows for only one unit of prosecution and his additional 13 convictions for section 106.1439 violations are barred by double jeopardy, which prohibits multiple punishments for the same offense....
...In McKnight, this court discussed the factors to be considered by the court in determining allowable units of prosecution. It is a common sense approach, guided by the statutory language, context, similar enactments, and case law. Applying this common sense approach to the present case, we find that section 106.1439 allows only one unit of prosecution....
...ntemplates that an offender will mail, email, or otherwise distribute substantial numbers of communications. Indeed, the statute uses a figure of 1000 as indicative of targeting. Common sense suggests the legislature did not intend that violation of section 106.1439, which it classified as a misdemeanor, would subject the offender to one year in jail for each of the 1000 communications. This conclusion is buttressed by the "a/any" test, and the legislature's use of the word "any" in section 106.1439(2): "Any person who fails to include the disclaimer prescribed in this section in any electioneering communication that is required to contain such disclaimer commits a misdemeanor of the first degree." (Emphasis supplied.) Under the...
