Florida/Georgia Personal Injury & Workers Compensation

...Gray, Jr., of Chandler, O'Neal, Gray & Lang, Fletcher N. Baldwin, Jr., Gerald T. Bennett and Wayne M. Carroll, Gainesville, for appellees. KARL, Justice. This cause is before us on direct appeal from an order of the County Court for Alachua County declaring Section 839.11, Florida Statutes, unconstitutionally vague and granting the motions to dismiss the indictment against the appellees....

...Jurisdiction vests in this court pursuant to Article V, Section 3(b)(1), Florida Constitution. Appellees, County Commissioners of Alachua County, were charged by indictment with twenty-one counts of malpractice in office, each count charging violation of Section 839.11, Florida Statutes. The penal statute provides: "839.11 Extortion and malpractice generally....

...ounty Commissioners of Alachua County against loss; and authorizing the use of funds from the State Mosquito Control Fund for other purposes during the fiscal year 1973-1974. Motions to dismiss the indictment were filed by appellees who alleged that Section 839.11, Florida Statutes, upon which all counts of the indictment are based, is vague, indefinite and uncertain in its terms and, thereby, denies them due process of law as guaranteed by Article I, Section 9, Florida Constitution, and the Fou...

...tification or excuse failed to perform any duty imposed upon them by law; that the statute of limitations had run on several of the counts; and that the indictment does not charge any offense under the laws of this state. Finding that the portion of Section 839.11, Florida Statutes, under which the defendants are charged is vague, indefinite and uncertain in its terms and is, therefore, unconstitutionally violative of the due process clauses of the Florida and federal constitutions, the trial co...

...in a criminal statute cannot be reduced by construction so as to limit its application only to that class of cases which it was within the power of the legislature to enact, and thus save the statute from invalidity." (emphasis supplied) To construe Section 839.11, Florida Statutes, as the state here suggests would require an abandonment of judicial restraint....

...But by opting to dispense with the necessity for a criminal intent in a penal statute, the Legislature does not avoid, or in any way diminish, the requirement of definiteness. Measured against the prescribed test of vagueness, we find that the language contained in Section 839.11, to the effect that "......

..." does not convey a sufficiently definite warning as to the proscribed conduct that men of common understanding could comprehend and that is violative of the due process clauses of the Florida and federal constitutions. Since we hold that portion of Section 839.11, Florida Statutes, upon which each count of the indictment is based, to be unconstitutionally vague, indefinite and overbroad, we find it unnecessary to resolve the remaining issues posed by Appellant....

...Accordingly, the judgment of the trial court granting the motions to dismiss the indictment is hereby affirmed. It is so ordered. OVERTON, C.J., and ADKINS, BOYD, SUNDBERG and HATCHETT, JJ., concur. ENGLAND, J., dissents with an opinion. ENGLAND, Justice, dissenting. I cannot agree with my colleagues' invalidation of Section 839.11, Florida Statutes (1975)....

...official duties, or commission of a felony. In State ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129 (1934), this court defined the offenses. The constitutional offenses are subject to the same criticism that is leveled against "malpractice" in Section 839.11, Florida Statutes....

...Stat. [4] § 839.25(1)(c), Fla. Stat. [5] § 775.082, Fla. Stat. [6] § 775.083, Fla. Stat. [7] § 839.25(2), Fla. Stat. [8] See State v. Llopis, 257 So.2d 17 (Fla. 1971) for the test of vagueness. Recently we struck a portion of a companion statute, § 839.11, Fla....

...Stat., provides for a waiver of sovereign immunity in this case. We find that it does not. In July, 1976, appellant, administrative assistant to the Alachua County Commission, was indicted by the Alachua County grand jury on four counts of malpractice in office in violation of § 839.11, Fla....

...osecution and false imprisonment through Whitworth as an employee or agent of the state. The complaint alleged that Whitworth, acting within his scope of employment as state attorney, advised the grand jury that the indictment could be brought under § 839.11, Fla....

...Second District Court of Appeal. BARKETT, J., concurs. NOTES [1] The jury convicted Merckle of four offenses: bribery, § 838.015(1), Fla. Stat. (1981); receiving unlawful compensation, § 838.016(2), Fla. Stat. (1981); extortion by a state officer, § 839.11, Fla....

...The grand jury indicted the defendant, Arden M. Merckle, for bribery in violation of section 838.015(1), Florida Statutes (1981), receiving unlawful compensation in violation of section 838.016(2), Florida Statutes (1981), extortion by a state officer in violation of section 839.11, Florida Statutes *949 (1981), and misbehavior in office in violation of section 775.01, Florida Statutes (1981)....

...Accordingly, the order of the trial court is reversed and this case remanded for further proceedings pursuant to rule 3.850. Reversed. SCHEB, A.C.J., and SCHOONOVER and THREADGILL, JJ., concur. NOTES [1] § 838.015(1), Fla. Stat. (1981). [2] § 838.016(2), Fla. Stat. [3] § 839.11, Fla....

...From The Florida Bar, and states: “The Florida Bar joins William T. Harvey in moving that his resignation from The Florida Bar be accepted without leave to apply for readmission.” Petitioner pleaded guilty to a misdemeanor under Florida Statute 839.11, F.S.A., Extortion and Malpractice Generally and The Florida Bar instituted disciplinary proceedings against him....