Florida/Georgia Personal Injury & Workers Compensation

...Sheppard and Stephen J. Weinbaum of the Law Offices of Wm. J. Sheppard, Jacksonville, for appellee. SUNDBERG, Justice. This is an appeal from an order of the County Court for Duval County, Florida, which initially and directly passed upon the validity of section 365.16(1)(b), Florida Statutes (1977). The issue presented is whether section 365.16(1)(b), which forbids the making of an anonymous telephone call with the intent to annoy, abuse, threaten, or harass the recipient of the call, is unconstitutionally overbroad on its face....

...We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. Appellee, Arlene Elder, was charged by amended information with making a telephone call, without disclosing her identity, to one Victoria Elaine Elder solely to annoy, abuse, threaten or harass her contrary to section 365.16(1)(b), Florida Statutes (1977)....

...end telling him that if he does not pay off a small debt he will never be spoken to again; one businessman calling another intending to "abuse" and "annoy" the latter by calling him dishonest. Finally, the court rejected any limiting construction of section 365.16(1)(b) on the basis that to so limit the statute and at the same time apply it to the defendant would deny him due process of law because of the lack of prior notice of the conduct proscribed. For the following reasons, we believe that the county court erred in finding section 365.16(1)(b) facially unconstitutional....

...ts, it is not susceptible of application to constitutionally protected speech. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Spears v. State, 337 So.2d 977 (Fla. 1976). We note in passing that the trial court, in ruling that section 365.16(1)(b) was unconstitutionally overbroad because it was not limited to the proscription of fighting words or obscenity, overlooks the fact that the constitutional right of free speech does not absolutely protect libelous or slanderous sp...

...st in order and morality.'" Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789 (1974), quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). We need not, however, pass on whether section 365.16(1)(b) validly proscribes pure speech....

...2908, 2918, 37 L.Ed.2d 830 (1973): "[W]here conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." As construed below, section 365.16(1)(b) is clearly applicable to a whole range of activity which is easily identifiable and which constitutionally may be proscribed. See Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). We hold, therefore, that the asserted overbreadth of section 365.16(1)(b) is not real and substantial judged in relation to the statute's plainly legitimate sweep. In construing section 365.16(1)(b), we are mindful of our responsibility to resolve all doubts as to the validity of a statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent....

...construed a challenged statute to *691 uphold it against vagueness or overbreadth attacks. See, e.g., State v. Saunders, 339 So.2d 641 (Fla. 1976); White v. State, supra . After careful consideration we, likewise, here conclude that the language of section 365.16(1)(b) is fairly susceptible to a constitutional construction that is consistent with the legislative intent. The closely related provisions of subsections (1)(b) through (1)(d) of section 365.16 evince a legislative intent to proscribe an act or a course of conduct that serves little, if any, informative or legitimate communicative function. [4] The statute is carefully worded as to the specific conduct proscribed and is carefully limited with preconditions so as not to infringe on legitimate free speech rights. [5] First of all, the statutory proscription of subsection 365.16(1)(b) through (1)(d) is applicable only against the person performing the act of telephoning someone....

...We wholly agree with the analysis of the United States District Court in United States v. Dorsey, 342 F. Supp. 311 (E.D.Pa. 1972), that the "anonymity of the caller is in itself a circumstance raising discomfort and fear in the receiver of the call." Id. at 313 (construing federal statutory counterpart to Florida subsection 365.16(1)(b))....

...r harass" presupposes that the telephone call is uninvited. It is this nonconsensual element of the telephone call which distinguishes the situation here from that in State v. Keaton, 371 So.2d 86 (Fla. 1979), where we held that subsection (1)(a) of section 365.16 (barring obscene or indecent comments or suggestions over the telephone) was unconstitutionally overbroad. In that decision we stated: We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(1)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as the home) which calls are intended to harass the listener, the enactment would pass constitutional muster....

...What was broadly proscribed under subsection (1)(a), then, was not simply the act of making an uninvited obscene telephone call, but also the content of pure speech consensually communicated through a telephone. [7] We declined in Keaton to uphold section 365.16(1)(a) by narrowly construing it to proscribe only "obscenity" as defined under Miller v....

...2607, 37 L.Ed.2d 419 (1973), a form of expression unprotected in the public forum, because the statute could nevertheless contravene the first amendment in failing to contain the essential qualifying element of an unwilling listener. In contrast to the statutory provision involved in Keaton, section 365.16(1)(b) does assume the existence of an unwilling listener....

...See also Kovacs v. Cooper, 336 U.S. at 87-89, 69 *693 S.Ct. at 453-454. We conclude that whatever minimal free speech value may be associated with an unwanted, anonymous, abusive telephone call simply because it is effected through verbal means under section 365.16(1)(b), [9] such value is clearly outweighed by the substantial privacy interests of the listener. These privacy interests constitutionally entitle the state to protect him from unwilling subjection to verbal or non-verbal abuse. Accordingly, we hold that section 365.16(1)(b), as construed in this opinion, is constitutional....

...Beasley, 317 So.2d 750 (Fla. 1975) (speech inciting a riot). [4] Accord, United States v. Lampley, 573 F.2d 783 (3d Cir.1978). In Lampley, the court upheld the constitutionality of the federal statutory provisions corresponding to subsections (1)(b) and (1)(d) of section 365.16 of the Florida Statutes....

...The court declared that Congress had a "compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of persons who employ the telephone, not to communicate, but for other unjustifiable motives." Id. at 787. [5] Indeed, subsection 365.16(1)(c), causing the telephone of another to ring repeatedly with intent to harass, does not even purport to regulate free speech activity. [6] At least one legitimate communicative or informative function is stated in section 365.16 itself. Subsection (5) of section 365.16 provides: "Nothing contained in this section shall apply to telephone calls made in good faith in the ordinary course of business or commerce." [7] The statute would purport to criminalize the "telling [of] an `off color joke' to a willing listener or ......

...54359. Supreme Court of Florida. May 10, 1979. *87 Jim Smith, Atty. Gen., and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellant. Steven G. Brady, Fort Pierce, for appellee. SUNDBERG, Justice. Appellee was charged by information under section 365.16(1)(a), Florida Statutes (1977), [1] with making a "comment or *88 suggestion which is obscene, lewd, lascivious, filthy, or indecent" to another by means of telephone communication....

...[2] The county court granted appellee's motion to dismiss and this appeal followed. Because the lower court initially and directly passed upon the validity of a state statute, we have jurisdiction. Art. V, § 3(b)(1), Fla. Const. The issue before us is whether section 365.16(1)(a), Florida Statutes (1977), suffers from the infirmity of overbreadth under both the Florida and federal constitutions. Appellee argues that section 365.16(1)(a) is not limited to language which is "obscene" as defined by Miller v....

...clear that subsection (1)(a) is intended to prohibit the use of obscene language with the intent to harass the listener. In support of its construction of subsection (1)(a), appellant points to the title of chapter 69-25, Laws of Florida, enacted as section 365.16, which reads: "AN ACT relating to obscene, harassing and threatening telephone calls... ." (e.s.) Because section 365.16(1)(a) is directed to conduct — obscene phone calls which are harassing — rather than at pure speech, submits appellant, the provision is not violative of appellee's first amendment freedom of speech....

...stitutes a valid legislative attempt to protect the substantial privacy interests of the listener, whether it proscribes only language defined as obscene under Miller or encompasses vulgar language as well. For the following reasons we conclude that section 365.16(1)(a), Florida Statutes (1977), is unconstitutionally overbroad and, therefore, the county court properly granted appellee's motion to dismiss....

...1969); Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958); Dade Federal Savings & Loan Association v. Miami Title & Abstract Division, 217 So.2d 873 (Fla.3d DCA 1969). The intent of the legislature with regard to the scope of section 365.16(1)(a) is arguably unclear....

...As noted by appellant, the title of the act is cast in the conjunctive — "obscene, harassing and threatening telephone calls" (e.s.) — which lends support to its contention that subsection (1)(a) is intended to proscribe obscene telephone calls which are also harassing. However, the legislatively supplied heading for section 365.16 is cast in the disjunctive and reads: "obscene or harassing telephone calls." (e.s.) Further, subsection (1) is divided into four distinct parts, each of which is also expressed in the disjunctive. Finally, the express terms of (1)(a) are directed solely to obscene comments, while parts (b) through (d) relate to harassing calls with no mention of the use of obscene language. Both the heading of section 365.16 and its composition, therefore, indicate that the legislature intended that it cover two distinct areas — the making of obscene comments on the one hand, and the specified use of the telephone to annoy, abuse, threaten, or harass the person called, on the other. In order to construe subsection (1)(a) as suggested by appellant, it would be necessary to read the term "or" in the heading of section 365.16 as "and." Furthermore, we would have to find that the element of intent to harass contained in parts (b) through (d) is, by implication, an element of part (a)....

...aningless. Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (1927); Dotty v. State, 197 So.2d 315 (Fla. 4th DCA 1967); Pinellas County v. Woolley, 189 So.2d 217 (Fla.2d DCA 1966). Because appellant's tendered construction of section 365.16(1)(a) is contrary to the intent of our lawmakers, however, we cannot engage in the suggested rewriting of terms....

...constitutional. The composition of the statute before us even more strongly militates against reading the element of "intent to harass" in subsection (1)(b) through (d) into subsection (1)(a). Not only did the legislature use the disjunctive "or" in section 365.16, as it did with the statute in McCall, but it also separated subsection (1) of the enactment into four distinct, lettered provisions. Because the scope of section 365.16(1)(a) is not limited to cases where the listener does not consent to use of the proscribed language, a citizen reading the provision might reasonably believe that it criminalizes telling an "off-color joke" to a willing listener or forbids a sexually oriented conversation between lovers....

...prudent, the cautious and the circumspect, *92 the very persons whose advice we seem generally to be most in need of. Id. at 980. We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(1)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as the home) which calls are intended to harass the listener, the enactment would pass constitutional muster....

...st or to "fighting words." [8] These limitations expressed in Spears, however, do not necessarily apply within the context of private telephone communications. Spears dealt with statutory restrictions upon public speech. Here, as we have recognized, section 365.16(1)(a) could be couched in appropriate terms so as to regulate certain types of harassing speech foisted upon a listener in a place where he might reasonably expect privacy....

...logue of a speaker in order to prevent a nonconsensual intrusion upon these interests. In contrast, the constitutionally permissible restrictions upon the language which an individual may use in a public forum are more narrow. We therefore hold that section 365.16(1)(a), Florida Statutes (1977), is impermissibly overbroad in violation of the first amendment freedom of speech under the Florida and federal constitutions....

...The statute under attack was geared toward conduct, i.e., use of the telephone, not speech. I would uphold the constitutionality and protect the privacy of the individual in his own home. BOYD, J., concurs. BOYD, Justice, dissenting. I respectfully dissent from the majority opinion holding that section 365.16(1)(a), Florida Statutes (1977), is impermissibly overbroad in violation of freedom of speech protected by the United States and Florida constitutions....

...The statute is not intended to curb constitutionally guaranteed freedom of speech but to prevent intentional, detrimental conduct that annoys the recipients of such calls. The issue is not protected speech but unprotected misconduct. ADKINS, J., concurs. NOTES [1] The portions of section 365.16, Florida Statutes (1977), which are relevant to this appeal are as follows: Obscene or harassing telephone calls....

...ll be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. [2] The record does not reflect the substance of appellee's alleged statements. It is clear, nonetheless, that appellee has standing to challenge section 365.16(1)(a) as overbroad....

...at 87-88, for example, this Court was confronted with an overbreadth challenge mounted against another obscenity statute that made it illegal to make a "comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent" over the telephone. § 365.16(1)(a), Fla....

...The county court dismissed the second count following a hearing conducted on Wohlfahrt's motion to dismiss for failure to state a cause of action. The court allowed Stoddard to file a second amended claim, and this time Stoddard alleged, as a basis for damages under count two, the violation of section 365.16, Florida Statutes (1987). Section 365.16 makes it a second-degree misdemeanor to make an obscene, lewd, or lascivious comment, request, suggestion, or proposal in a telephone call to a person receiving the call who has a reasonable expectation of privacy....

...The dismissal, however, was made without prejudice to amend, and the order dismissing the complaint was a three-page order with citations to numerous cases considered by the court. Stoddard then filed a third amended complaint changing his theory of a cause of action from a statutory violation of section 365.16 to one based on an invasion of privacy. This complaint included numerous references to Florida cases calculated to support his claim, as well as a reference to section 365.16(1)(b) to characterize the harrassing and annoying calls as unlawful....

...Butterworth, Atty. Gen., Robert J. Krauss, Sr. Asst. Atty. Gen., Chief of Crim. Law, and Brenda S. Taylor, Asst. Atty. Gen., Tampa, for respondent. WELLS, Justice. We have for review a decision of the district court that expressly declares to be valid section 365.16(1)(a), Florida Statutes (1991), 629 So.2d 962....

...s him, that these calls annoyed and offended him, and that the threats were aimed at him because he was in a management position at the post office. The trial court found petitioner guilty of making an obscene or harassing phone call in violation of section 365.16(1)(a), Florida Statutes (1991)....

...d the conviction and sustained the statute against the attack that it was an unconstitutional infringement of the right to free speech. Petitioner sought review from the district court of appeal, which approved the circuit court's decision declaring section 365.16(1)(a), Florida Statutes (1991), valid....

...We believe the essential point of this case was correctly assessed by the circuit court in its order. The constitutionality of this statute originally came into question and was addressed by the Florida Supreme Court in State v. Keaton, 371 So.2d 86 (Fla. 1979). The statute originally was worded: "365.16(1) Whoever by means of telephone communication: (a) Makes any comment, request, suggestion, or proposal which is obscene, lewd lascivious, filthy, or indecent ......

...cribed language and that it therefore [was] in violation of the First Amendment freedom of speech. That court specifically stated: We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(1)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as the home) which calls are intended to harass the listener, the enactment would pass constitutional muster....

...Because such a statute would assume the existence of a listener who is unwillingly subjected to vulgar or obscene epithets, it would constitute a valid legislative attempt to protect the substantial privacy interests of the listener. After this case was decided, the legislature amended the statute to read: 365.16....

...nstitutionally protected rights in State v. Elder, 382 So.2d 687 (Fla. 1980). The Elder court mentions subsection (1)(a) only for the purpose of discussing its decision in Keaton. There are no cases dealing specifically with the constitutionality of § 365.16(1)(a). Appellant argues that lack of consent is a specific constitutional requirement for a *12 statute such as § 365.16....

...1484, 25 L.Ed.2d 736 (1979). This Court agrees with that position and recognizes that the right of free speech is sometimes outweighed by privacy interests, here the privacy interests of the listener, Mr. Hegadis. Elder at 692. Accordingly, this Court finds that § 365.16(1)(a) is not in violation of Appellant's constitutional rights of free speech or due process....

...that person has a reasonable expectation of privacy, with an intent to offend, annoy, abuse, threaten, or harass. We do further restrict the statute only to calls or language that intend to abuse, threaten, or harass. With these restrictions we find section 365.16(1)(a) valid for reasons similar to those upon which we found subsection (1)(b) valid....

...ANSTEAD, Justice, dissenting. Because the scope of this statute remains as broad as the statute we considered in State v. Keaton, 371 So.2d 86 (Fla. 1979), I think we are bound by Keaton to again invalidate the statute. In Keaton we held: Because the scope of section 365.16(1)(a) is not limited to cases where the listener does not consent to use of the proscribed language, a citizen reading the provision might reasonably believe that it criminalizes telling an "off-color joke" to a willing listener or forbids a sexually oriented conversation between lovers....

...g evidence: (a) Case Number 97-624MM, pending in the County Court of Holmes County, styled "State of Florida v. Angela Michelle Brown" ("Ms.Brown"), involved a criminal misdemeanor charge against Ms. Brown of harassing communications in violation of Section 365.16, Florida Statutes....

...rder placed before him. He did not give proper attention to this document prior to affixing his signature. (d) On June 6, 1998, a second affidavit was executed by Mr. Brown, again charging Ms. Brown with harassing *962 communications in violation of Section 365.16, and stalking in violation of Section 784.048(2), Florida Statutes....

...which was obscene, lewd, lascivious, filthy, vulgar, or indecent; and by such call or such language, intended to offend, annoy, abuse, threaten or harass any person at the called number, in violation of Florida Statutes 365.16(1)(a). Based upon this new misdemeanor arrest, an affidavit was filed alleging that Cohen violated his community control and probation by committing a new crime. The affidavit specifically referenced the misdemeanor case number and incorporated the allegations of the misdemeanor information (as set forth above) specifically charging a violation of section 365.16(1)(a).1 1 The probation violation affidavit also alleged that Cohen violated his community 2  In May 2014, the trial court conducted a probation violation hearing. As Cohen concedes in this appeal, the evidence at the hearing supported a determination that Cohen had violated his probation by making an obscene phone call in violation of section 365.16(1)(a)2, rendering unnecessary a recitation of the details of that phone call....

...t: - Cohen had violated his probation by making an obscene and harassing phone call in violation of section 356.16(1)(a); control by failing to submit to electronic monitoring and failing to participate in sex offender treatment. 2 Section 365.16(1)(a) provides: (1) Whoever: (a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestio...

...battery); his mercurial history of community control supervision; his mental health and treatment history; and the significant number and serious nature of Cohen’s prior felony convictions.6 The court sentenced Cohen to 25 years’ imprisonment. 4 Section 365.16(1)(c) provides: (1) Whoever: (c) Makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number....

...ng to participate in sex offender treatment7; and committing the offense of Obscene Harassing Phone Calls. Cohen correctly contends that, in revoking Cohen’s probation, the trial court erroneously relied upon an uncharged violation of section 365.16(1)(c), Florida Statutes, by having made the series of ten repeated phone calls following the single obscene phone call....

...7 The State properly concedes that the order of revocation incorrectly reflects a finding that Cohen violated these conditions of his community control. 5 charged violation of making an obscene phone call under section 365.16(1)(a). McKenzie v....

...Appellants, who were plaintiffs in the trial court, here seek reversal of a summary final judgment entered in favor of the defendant there, appellee here. In 1974 one Patricia Carroll complained to appellee Southern Bell that she was receiving harassing telephone calls. Florida Statute 365.16 proscribes the use of a telephone to annoy, abuse, threaten or harass *89 any person at the called number....

...guilty of aggravated stalking and making harassing telephone calls, and the subsequent orders finding him guilty of violating his probation are to be vacated and a new *754 adjudicatory hearing is to be held. 5 REVERSED and REMANDED. SAWAYA and TORPY, JJ., concur. . § 784.048(5), Fla. Stat. (2008). . § 365.16(l)(b), (d), Fla....

...ting on the internet, in violation of section 836.05, Florida Statutes (2004). Counts 2-9 charged the defendant with making obscene and harassing telephone calls to the victim where the victim had a reasonable expectation of privacy, in violation of section 365.16(l)(a), Florida Statutes (2004). Counts 10-37 charged the defendant with making threatening and harassing telephone calls to the victim without disclosing his identity, in violation of section 365.16(l)(b), Florida Statutes (2004)....

...“There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Id. Counts 2-9 charged the defendant with violating section 365.16(l)(a) by making obscene and harassing telephone calls *741 to the victim where the victim had a reasonable expectation of privacy. Section 365.16(l)(a) provides, in pertinent part: (1) Whoever: (a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion, or propos...

...or indecent; and by such call or such language intends to offend, annoy, abuse, threaten, or harass any person at the called number; [[Image here]] is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. § 365.16(l)(a), Fla. Stat. (2004)(emphasis added). Originally, section 365.16(l)(a), Florida Statutes (1977), criminalized individuals who, “by means of telephone communication,” made “any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent.” § 365.16(l)(a), Fla....

...Keaton, 371 So.2d 86 (Fla.1979). The requirement that the telephone call be made “to a location at which the person receiving the call has a reasonable expectation of privacy” was added after the Florida Supreme Court held that the 1977 version of section 365.16(l)(a) violated freedom of speech rights guaranteed by the Florida and federal constitutions....

...a Supreme Court focused on the fact that the scope of the subsection was not limited to cases where listeners did not consent to the use of specified language. Id. at 90 . The Florida Supreme Court expressed specific concern regarding the failure of section 365.16(l)(a) to protect an unwilling listener’s reasonable expectations of privacy. Id. The court stated: We do not hold that the state may not proscribe obscene telephone communications regardless of the circumstances. Were section 365.16(l)(a) limited to obscene calls to a listener at a location where he enjoys a reasonable expectation of privacy (such as a home) which calls are intended to harass the listener, the enactment would pass constitutional muster....

...Because such a statute would assume the existence of a listener who is unwillingly subjected to vulgar or obscene epithets, it would constitute a valid legislative attempt to protect the substantial privacy interests of the listener. Id. at 92 (emphasis added). The court also stated, “section 365.16(l)(a) could be couched in appropriate terms so as to regulate certain types of harassing speech foisted upon a listener in a place where he might reasonably expect privacy.” Id. at 92 (emphasis added). Following Keaton , the legislature amended section 365.16(l)(a) to add the requirement that the listener be at a location where he or she has a reasonable expectation of privacy. See Gilbreath v. State, 650 So.2d 10, 11 (Fla.1995); § 365.16(l)(a), Fla....

...See Morningstar, 428 So.2d at 221 (holding that the constitutional protection of an individual’s reasonable expectation of privacy in his or her home does not extend to a place of business). We find that there was insufficient evidence to satisfy the elements of section 365.16(l)(a) because the defendant only made calls to the victim’s business telephone line....

...Since the State failed to prove that the defendant made obscene or harassing telephone calls “to a location at which the person receiving the call has a reasonable expectation of privacy,” we reverse the defendant’s convictions and sentences as to Counts 2-9. See § 365.16(l)(a), Fla....

of harassing communications in violation of Section 365.16, Florida Statutes. Ms. Brown was the former

...his motion to dismiss. See Bouters v. State, 659 So.2d 235 (Fla.), cert. denied, — U.S. -, 116 S.Ct. 245 , 133 L.Ed.2d 171 . Appellant claims that he should have been prosecuted under the misdemeanor statute prohibiting harassing telephone calls, section 365.16, rather than under the felony statute for aggravated stalking, section 784.048(4)....

...McKendry v. State, 641 So.2d 45, 46 (Fla.1994). Appellant argues that the stalking statute is a general statute, while the harassing telephone call statute is a more specific statute. Thus, while it is illegal to make repeated harassing telephone calls under section 365.16, those same harassing telephone calls could not be used as the act of harassment under section 784.048(4)....

...The phone calls originated in Tallahassee and occurred on weekends when Florida State University had home football games. When in Tallahassee on these visits, Respondent would consume alcohol and use cocaine throughout. In May 1991 Respondent pleaded guilty to six counts of making obscene phone calls in violation of section 365.16(l)(d), Florida Statutes (1989), and was sentenced to thirty days in jail and six months probation, fined, and assessed costs....

...Smith Chief of Police City of Perry Post Office Drawer 109 Perry, Florida 32347 Dear Chief Smith: This is in response to your request for an opinion on substantially the following questions: (1) IS A MUNICIPAL POLICE DEPARTMENT A LAW ENFORCEMENT AGENCY WITHIN THE PURVIEW OF s 365.16 (4), F.S.? (2) IS A MUNICIPAL POLICE DEPARTMENT A "LAW ENFORCEMENT AGENCY" AS THAT TERM IS DEFINED IN s 934.02 (10), F.S., FOR PURPOSES OF CH....

...e calls based upon the municipal police department's official reports. You therefore inquire as to whether under existing law the telephone company may utilize its facilities to trace harassing calls for the municipal police department. QUESTION ONE Section 365.16 , F.S., provides that it is unlawful to use, or to permit another to use, the telephone to make obscene calls or to intentionally harass another by anonymous calls, repeated calls or causing the telephone of another to ring repeatedly. See, s 365.16 (1) and (2), F.S., stating that such actions are misdemeanors of the second degree punishable as provided in s 775.082 or s 775.083 , F.S. Subsection (4) of s 365.16 provides that "[e]ach telephone company in this state shall cooperate with the law enforcement agencies of this state in using its facilities and personnel to detect and prevent violations of this section." The terms of s 365.16 (4) are separate and distinct from, and independent of, the provisions of Ch....

...ssing telephone calls. Law enforcement agency is not defined for purposes of this section; definitions of this term or similar terms in related statutes concerning the activities of law enforcement agencies may therefore be looked to and read with s 365.16 to glean its meaning....

...). And see, AGO 76-139 stating that a municipal police officer who arrests a person for a violation of a state criminal statute is acting on behalf of the state. Based upon the foregoing, it appears clear that "law enforcement agencies" as used in s 365.16 , F.S., encompasses a municipal police department whose officers are charged with enforcing not only municipal ordinances but the criminal and traffic laws of this state and are authorized to make arrests for violations thereof. Accordingly, I am of the opinion, until and unless judicially or legislatively determined otherwise, that a municipal police department is within the purview of s 365.16 (4) and telephone companies within the state are required to assist the municipal police in using its facilities and personnel to detect and prevent obscene or harassing telephone calls....

...d within the term "law enforcement agency" as used in Ch. 934 , F.S. In sum, I am of the opinion that a municipal police department is a law enforcement agency for purposes of the Security of Communications Law, Ch. 934 , F.S., and for purposes of s 365.16 , F.S., directing telephone companies within the state to assist law enforcement agencies in the detection and prevention of obscene or harassing telephone calls....

harassing telephone calls in violation of section 365.-16, Florida Statutes (1981). Appellant argues

...1 Condition (5) required Mr. Durie to live and remain at liberty without violating any law. The trial court revoked Mr. Durie’s order of probation because he made harassing telephone calls to an assistant attorney general, allegedly in violation of section 365.16(1), Florida Statutes (2001)....

...McCravy listened to the voice mail messages and reported them to the police. Although Mr. Durie was never prosecuted, an affidavit was filed charging him with violating his probation by committing the offense of making harassing telephone calls pursuant to section 365.16(1). 2 The *174 trial court found him guilty and revoked his probation. Mr. Durie appeals that order in this proceeding. I. THE HARASSING TELEPHONE CALL STATUTE Florida’s harassing telephone call statute, section 365.16, provides: (1) Whoever: (a) Makes a telephone call to a location at which the person receiving the call has a reasonable expectation of privacy; during such call makes any comment, request, suggestion, or proposal which is obscene, lew...

...ndment. There is little question that Mr. Durie knew that these recordings would upset and threaten Ms. McCravy, but they contain extensive legal and rational discussion in which he is trying to explain his view of the entire matter. The language of section 365.16(1) is thus critical to our analysis....

...ed to dilute the statute to make it a crime to institute repeated calls with other intents mixed with harassment, it would have been a simple matter for it to have said so or to have deleted the word ‘solely.’ ” The same is true here regarding section 365.16. Florida case law on section 365.16(l)(d) is nonexistent....

...he two definitions. Whether Mr. Durie’s intent was solely to harass or was mixed with an intent to persuade Ms. MeCravy that he had been unjustly convicted, however, is a different question from whether his intent to persuade was “legitimate.” Section 365.16(l)(d) does not include a legitimacy requirement. 5 We therefore hold that the trial court erred as a matter of law in misinterpreting section 365.16 to find that Mr....

PER CURIAM. Sara Gilbreath seeks certiorari review of the circuit court’s order affirming her conviction for “obscene or harassing telephone calls.” § 365.16(l)(a), Fla.Stat....