CopyCited 26 times | Published | Supreme Court of Florida | 2001 WL 1095088
...Baranowicz of Baranowicz & Calderon, P.A., Venice, FL, for Appellee. HARDING, J. We have on appeal a decision of a district court of appeal declaring a state statute to be invalid. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. James E. Brake, Jr. was charged by information with violating section 787.025, Florida Statutes (1997)....
...Brake did not have permission or consent from M.C.'s parents to take her. M.C.'s parents reported her missing to their neighbors and M.C. was found ninety minutes later with Brake. After the trial court denied Brake's motion to dismiss the information and declare section 787.025 unconstitutional, Brake entered a plea of nolo contendere, reserving the right to appeal the denial....
...vague and reversed Brake's conviction. See Brake v. State,
746 So.2d 527 (Fla. 2d DCA 1999). The State appealed the case to this Court, based upon the district court's ruling that the statute is unconstitutional. On appeal, the district court found section
787.025 to be unconstitutionally vague because it does not define the term "for other than a lawful purpose." Thus, the district court concluded that the statute fails to give persons of common intelligence adequate warning of the proscribed conduct and encourages arbitrary and erratic enforcement....
...s not clear that he "has engaged in some conduct clearly proscribed by the plain and ordinary meaning of the statute" as did Sieniarecki. Thus, Brake has standing to bring a facial vagueness challenge. While the Second District Court of Appeal found section 787.025 to be unconstitutionally vague, Brake argues on review before this Court that the statute is both unconstitutionally vague and overbroad....
...Under this interpretation, the statute provides adequate notice of the conduct it prohibits and is not susceptible of application to conduct protected by the First Amendment. The district court also determined that the statute creates an unconstitutional mandatory rebuttable presumption in section
787.025(2)(b), which provides that luring a child "without the consent of the child's parent or legal guardian shall be prima facie evidence of other than a lawful purpose." Brake,
746 So.2d at 529....
...defendant. We cannot say with substantial assurance that a defendant's unlawful intent can be so presumed. For example, a neighbor who invites a child into their house for a perfectly innocent reason is not likely to seek parental permission. Thus, section 787.025(2)(b) must be deleted as an unconstitutional statutory presumption. For the reasons discussed above, we reverse in part and affirm in part the decision below. As interpreted by this Court, we conclude that section 787.025 is not unconstitutionally vague or overbroad, *530 but that section 787.025(2)(b) must be deleted as an unconstitutional statutory presumption....
...WELLS, C.J., and SHAW, PARIENTE, and LEWIS, JJ., concur. ANSTEAD, J., concurs specially with an opinion, in which PARIENTE and LEWIS, JJ., concur. QUINCE, J., concurs in result only. ANSTEAD, J., specially concurring. I fully concur in the majority's opinion in construing and upholding section 787.025....
...Further, the State is not entitled to any presumptions in proving its case in court. As construed, I agree that the statute is a patently reasonable effort by our Legislature to protect Florida's young children. PARIENTE and LEWIS, JJ., concur. NOTES [1] Section 787.025, Florida Statutes (1997), provides: (1) As used in this section, the term: (a) "Structure" means a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 1999 WL 1128789
...Parnes, Assistant Attorney General, Tampa, for Appellee. *528 DANAHY, PAUL W., (Senior) Judge. James E. Brake, Jr., challenges the judgment and sentence imposed after the entry of his no contest plea to the offense of luring or enticing a child under section
787.025, Florida Statutes (1997). Brake reserved the right to appeal the denial of his motion to dismiss on the grounds that section
787.025 is unconstitutionally vague in that it does not define the term "other than lawful purpose." The trial court's denial of the motion to dismiss is the sole issue on appeal. We agree with Brake's argument that the statute is unconstitutionally vague and, accordingly, reverse his conviction. Section
787.025 makes it a third-degree felony for an adult who has previously been convicted of a sexual offense under either chapter 794 or section
800.04, or under a similar law of another jurisdiction, to intentionally lure or entice, or attempt to lure or entice, a child under the age of twelve "into a structure, dwelling, or conveyance for other than a lawful purpose." See §
787.025(2)(a)....
...2d DCA 1996), held that the term "illegal act" in a sentencing statute was not unconstitutionally vague because it was "defined by the latter part of the phrase that begins `by means of concealment, guile, or fraud.'" Hankin,
682 So.2d at 604. In the present case, "lawful purpose" is not defined by anything in section
787.025 or anything in chapter 794 or section
800.04, which section
787.025(2)(a) incorporates *529 by reference. The State argues that the three affirmative defenses set forth in section
787.025(3) supply the requisite meaning to the term "lawful purpose." We conclude that there are two problems with this argument. First,
787.025(2)(b) states that the luring or enticing, or attempted luring or enticing, of the child into a structure, dwelling, or conveyance, without the consent of the child's parent or legal guardian "shall be prima facie evidence of other than a lawf...
...mined that the State may prove the mens rea portion of the offense, that the defendant had an other than lawful purpose, by proving that the defendant did not have the guardian's or the parent's permission to thus "lure" or "entice" the child. Under 787.025(3) a defendant may then rebut this prima facie case by establishing that either he or she reasonably believed the action taken was necessary to prevent serious injury to the child; that it was for a "lawful purpose"; or that the actions were reasonable under the circumstances and there was no intent to harm the child....
...arcolini v. State,
673 So.2d 3, 4 (Fla. 1996) (citations omitted). Thus, because the affirmative defenses are part of an unconstitutional mandatory rebuttable presumption, we cannot rely upon them to add meaning to the term "lawful purpose." Second, section
787.025(3)(b) provides that a defendant's "lawful purpose" in luring or enticing the child is in itself an affirmative defense....
...g of the statute ... [and] is foreclosed from mounting a successful vagueness challenge to the statute and from complaining, because of a lack of standing, of its vagueness as applied to the hypothetical conduct of others." Id. at 1077. We hold that section 787.025 is unconstitutionally vague in that the term "other than a lawful purpose" fails to give persons of common intelligence adequate notice of the proscribed conduct....
CopyPublished | Supreme Court of Florida | 42 Fla. L. Weekly Supp. 601, 2017 WL 2210387, 2017 Fla. LEXIS 1236
...approve the Fourth District’s decision below. Because this is an issue of statutory interpretation, this Court’s review is de novo. Plott v. State,
148 So.3d 90, 93 (Fla.2014). The DSFO Act provides: Any person who is convicted of a violation of section
787.025; section
794.011(2), (3), (4), (5), or (8); section
800.04(4) or (5); section
825.1025(2) or (3); section
827.071(2), (3), or (4); or section
847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: ... Has been previously convicted of a violation of section
787.025; section
794.011(2), (3), (4), (5), or (8); section
800.04(4) or (5); section 825,1025(2) or (3); section
827.071(2), (3), or (4); section
847.0145; of any offense under a former statutory designation which is similar in elements to a...
...or “of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph” is a dangerous sexual felony *880 offender. In 2005, those enumerated felonies were: • Luring or enticing a child, section
787.025, Florida Statutes (2005); • Sexual battery, section
794.011, Florida Statutes (2005); • Lewd or lascivious battery or molestation committed upon or in the presence of persons less than 16 years of age, section
800.04(4) and (5), F...
CopyPublished | Supreme Court of Florida | 2013 Fla. LEXIS 1931, 2013 WL 3064823
...Section
794.0115 sets forth the requirements for establishing that an individual is a “dangerous sexual felony offender.” §
794.0115, Fla. Stat. (2012). First, the defendant must have been convicted of violating one of the statutory provisions set out in section
794.0115(2) — i.e., section
787.025(2)(c); section
794.011(2), (3), (4), (5), or (8); section
800.04(4) or (5); section
825.1025(2) or (3); section
827.071(2), (3),’ or (4); or section
847.0145; or of any similar offense under a former designation....
...court for a felony offense under the laws of Florida, for an offense that is a felony in another jurisdiction, or for an offense that would be a felony if that offense were committed in Florida; or (e) previously been convicted of violating sections
787.025(2)(c),
794.011(2), (3), (4), (5), or (8),
800.04(4) or (5),
825.1025(2) or (3),
827.071(2), (3), or (4), or
847.0145; of any offense under a former statutory designation which is similar in elements to an offense described in this paragraph;...
CopyPublished | Florida 1st District Court of Appeal
...and subject to registration under subsection (6) and
community and public notification under subsection (7) if:
1. The felony is:
....
b. Any felony violation, or any attempt thereof, of s.
393.135(2); s.
394.4593(2); s.
787.01, s.
787.02, or s.
787.025(2)(c), where the victim is a minor; s....
...985.701(1); or a violation
of a similar law of another jurisdiction, and the offender
has previously been convicted of or found to have
committed, or has pled nolo contendere or guilty to,
regardless of adjudication, any violation of s.
393.135(2);
s.
394.4593(2); s.
787.01, s.
787.02, or s.
787.025(2)(c),
4
where the victim is a minor; s....
...l Dictionary of the
English Language: Unabridged (1981) (“[H]aving characteristics
in common[,] very much alike[,] comparable.” (emphasis
supplied)).
This view is consistent with State v. Brake,
796 So. 2d 522
(Fla. 2001), which concerned section
787.025(2)(c), Florida
Statutes (1997). That statute provided a certain penalty to a
person “who, having been previously convicted of a violation of
chapter 794, s.
800.04, or s.
847.0135(5), or a violation of a similar
law of another jurisdiction,” performs a certain act. §
787.025(2)(c),
Fla....
...§ 21.11 (West 1997) with §
800.04, Fla.
Stat. (1997). Despite the difference in the elements of the two
crimes, such that one could violate the Texas law when the act
would not violate the Florida law, the Supreme Court of Florida
still deemed the laws “similar” for the purposes of section
787.025(2)(c), Florida Statutes....
