Florida/Georgia Personal Injury & Workers Compensation

RAY, J. Naymontie Enoch appeals his convictions and sentences pursuant to sections 874.05(1) and 874.11, Florida Statutes (2009). At issue is the constitutionality of these statutes enacted to protect the public from crimes committed by criminal gangs. Concluding that section 874.05(1) is constitutional, we affirm the conviction and sen *348 tence on that count....

...However, because section 874.11 substantially treads upon protected speech and expressive conduct, associational activity, and other innocent acts and cannot be suitably narrowed to comport with federal and state constitutional requirements, we are constrained to reverse the conviction and sentence on that count. Section 874.05(1), the “gang recruitment” provision, was enacted to protect the public from speech and conduct used to encourage gang membership, where a condition of membership or continued membership is the commission of any crime....

...o years’ probation; and on the second count to five years’ probation, to be served consecutively to the probationary term in the first count. This direct appeal followed. MOTION TO DISMISS INFORMATION The motion to dismiss asserted that sections 874.05(1) and 874.11 are, as a matter of constitutional law, void for vagueness because they contain terms so unclear that a person of common intelligence must necessarily guess at their meaning....

...te when this does not effectively rewrite the statute.” Fla. Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla.2004). CLAIMS OF UNCONSTITUTIONALITY A. First Amendment The First Amendment challenges require us to determine whether section 874.05(1) and/or section 874.11 violates freedom of speech and freedom of association....

...a substantial number of their applications are unconstitutional when compared to the clearly valid aspect of each provision. 1. Section 871.05(1): The “Gang Recruitment” Statute The “gang recruitment” statute implicated in Count One states: 874.05 Causing, encouraging, soliciting, or recruiting criminal gang membership.— (1) Except as provided in subsection (2) [which deals with a second or subsequent violation], a person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the third degree, punishable as provided in [various statutes]. § 874.05(1), Fla....

...T.B.D., 656 So.2d 479, 482 (Fla.1995) (“Florida has a compelling interest in protecting the right of each of its citizens to live at peace in the sanctity of his or her home, free from violence and the threat of violence.”). Under the second prong of strict scrutiny, we review section 874.05(1) to ascertain whether it is narrowly tailored to promote the compelling governmental interest....

...Indeed, under Florida’s broad statutory definitions of “criminal gang” and “criminal gang member,” a person can join or associate with such a group without any actual intent to commit a crime. § 874.03(1), (3). 1 Enoch’s argument, however, misconstrues section 874.05(1)....

...In relevant part, the statute provides that “a person who intentionally causes, encourages, solicits, or recruits another person to become a criminal gang member where a condition of membership or continued membership is the commission of any crime commits a felony of the third degree.... ” Although the language of section 874.05(1) is silent regarding whether the solicitor/recruiter must know of the crime-related condition of gang membership, silence alone does not necessarily suggest the legislative body “intended to dispense with a conventional mens rea el...

...Supreme Court “has virtually created a presumption in favor of a guilty knowledge element absent an express provision to the contrary.” Giorgetti, 868 So.2d at 515 . We find no indication of legislative intent to dispense with knowledge of the criminal condition of membership and related intent to incite lawlessness in section 874.05(1)....

...Both counts charged third-degree felonies, which are punishable by a prison term not exceeding five years. See § 775.082(3)(d), Fla. Stat. (2009). Having carefully considered the reasoning in Staples v. United States and State v. Giorgetti, and acknowledging the express connection between membership and crime, we conclude section 874.05(1) requires proof that a person intentionally “cause, encourage, solicit, or recruit” another person to become a criminal gang member and do so with knowledge that membership or continued membership is conditioned on the imminent commission of a crime....

...Enoch acknowledges the case law holding that even content-based speech can be restricted if it is integral to criminal conduct. State v. Stalder, 630 So.2d 1072, 1077 (Fla.1994) (“When protected speech translates into criminal conduct, even the Free Speech Clause balks.”). He asserts, however, that if section 874.05(1) is not facially invalid in all its applications, it is still impermissibly overbroad....

...2908 , 37 L.Ed.2d 830 (1973); Stevens, 130 S.Ct. at 1587 . “[B]ecause application of the overbreadth doctrine is ‘strong medicine,’ it should be employed sparingly by courts.” Sult v. State, 906 So.2d 1013, 1022 (Fla.2005). To explain why the speech and conduct contemplated in section 874.05(1) have a sufficient nexus to criminal conduct, we look to Brandenburg v....

...Because the statute in Brandenburg punished persons for merely advocating crime or violence to bring about political reform, the Court found it violated First Amendment protections. 395 U.S. at 448-49 , 89 S.Ct. 1827 . We must examine the overbreadth challenge to section 874.05(1) in light of this critical difference between abstract advocacy and actual incitement to imminent lawlessness....

...See Brandenburg, 395 U.S. at 447-48 , 89 S.Ct. 1827 . Considering the implicit but significant requirement of mens rea, and the conditional language linking the intentional solicitation or recruitment to the inevitable commission of “any crime,” we conclude section 874.05(1) does not infringe upon a substantial amount of constitutionally protected ground and is not unconstitutionally overbroad....

...The Legislature has narrowly tailored this law to effect its intended purpose to promote public safety and prevent crime without impermissibly intruding upon the rights of law-abiding persons or, for that matter, the discrete lawful activities of gang members. See § 874.02(1). Enoch’s “freedom of speech” challenge to section 874.05(1) fails....

...tence of the criminal gang and knowingly solicit, invite, encourage, or cause a person to actively participate in the gang’s criminal activities. If the statutes addressed in Helton and Manzanares are not overbroad, then the comparable language in section 874.05(1) survives Enoch’s constitutional challenge....

...The Florida Legislature is not alone in enacting a statute criminalizing gang solicitation and recruitment for illegal purposes. Like Indiana and Idaho, California and Texas have enacted similar statutes. 3 *357 b. Freedom of Association Enoch also argues that section 874.05(1) violates the right of association, which is a separate and distinct component of the First Amendment....

...enburg do not cover unprotected criminal associations). The State notes, and we agree, that whatever associational rights a criminal gang may have, such rights do not extend to the inevitable and imminent criminal or delinquent conduct proscribed in section 874.05(1)....

...Moreover, section 874.11 is not readily susceptible to any narrowing construction that will protect First Amendment rights. Like the “gang recruitment” statute, the “electronic communication” provision contains no express requirement of knowledge of the gang’s criminal activity; unlike section 874.05(1), however, section 874.11 includes no reference to inevitable illegal conduct....

...ment activities” in airport central terminal and thus “reache[d] the universe of expressive activity”). Accordingly, we reverse Enoch’s conviction and sentence under Count Two. B. Substantive Due Process Enoch’s next claim is that sections 874.05(1) and 874.11 violate the Florida Constitution’s guarantees of substantive due process because both provisions encompass and criminalize innocent conduct *362 and are susceptible to unreasonable, arbitrary, and capricious enforcement....

...eproduce credit cards, violated substantive due process because the legislative means of curtailing fraud bore no reasonable relationship to the admittedly proper objective). 1. Section 871.05(1): The “Gang Recruitment” Statute Enoch argues that section 874.05(1) broadly encompasses innocent activity because it does not require an agreement to commit a crime or delinquent act and criminalizes “thought crime,” the mere idea of soliciting the commission of an unidentified crime at some indefinite time....

...and, entice, hire, advise, incite, or otherwise encourage another to commit a crime if the State is to prove solicitation to commit a prohibited offense. Id. Thus, Enoch correctly states that thinking about an illegal act is not, by itself, a crime. Section 874.05(1) does not punish a person for simply thinking or talking about crime; rather, this provision requires proof that a person intentionally recruit or solicit another person to become a gang member knowing of the criminal condition of membership or continued membership. As we noted in our analysis of section *363 874.05(1) in the First Amendment challenge, this provision covers only speech and conduct inextricably related to inevitable, impending illegal activity. Unlike the circumstances in Gaines , section 874.05(1) crosses the line from protected thought about lawlessness to incitement to actual criminal or delinquent activity....

...The “gang recruitment” provision neither prohibits mere membership in a criminal gang nor criminalizes innocent conduct. 5 We conclude that the legislative means chosen to effect the compelling governmental interest in protecting the public have a reasonable, substantial nexus to the goal to be attained. Section 874.05(1) is carefully designed to avoid an unreasonable, arbitrary, or capricious application and does not violate substantive due process....

...Flipside, Hoffman Estates, Inc., 455 U.S. 489 , 495 n. 7, 102 S.Ct. 1186 , 71 L.Ed.2d 362 (1982); J.L.S., 947 So.2d at 646 . To have standing to challenge either statute for unconstitutional vagueness, Enoch cannot have engaged in conduct that is clearly prohibited by section 874.05(1) or section 874.11....

...the trial court accepted without an objection from Enoch. Like J.L.S. and the defendant in State v. Cyphers, 873 So.2d 471, 473 (Fla. 2d DCA 2004), Enoch does not contend that what he said and did on the DVD is outside the proscriptions of sections 874.05(1) and 874.11....

...2d DCA 1998) (holding that defendant who was caught committing specific criminal conduct prohibited by a statute lacked standing to question the statute’s vagueness as applied to the hypothetically innocent conduct of others). To summarize, we conclude that section 874.05(1) passes constitutional muster....

...of innocent conduct within its proscriptions. Enoch is foreclosed from asserting a “void-for-vagueness” claim against either statute for the reasons set forth in Hoffman Estates and J.L.S. We affirm Enoch’s conviction and sentence pursuant to section 874.05(1) and reverse his conviction and sentence pursuant to section 874.11....