Friday, October 18, 2013

Stalking, Electronic Communications and Ex Post Facto


This post examines a recent opinion from the Florida Court of Appeals, which the court began by noting that the defendant, Patrick Macchione,

is a deeply disturbed individual who suffers from `severe’ mental illness. This may explain, but does not excuse . . . his obsession with the victim and his threats to take the victim's life.

Macchione comes to this court with an array of convictions that include sixteen violations of repeat violence injunction and one conviction each for aggravated stalking after an injunction, aggravated stalking with a credible threat, and violation of § 836.10, Florida Statutes, which makes it a crime if a person `writes or composes and also sends or procures the sending of any letter or inscribed communication . . . to any person, containing a threat to kill or do bodily injury to the person to whom such letter or communication is sent. . . .’ Florida Statutes § 836.10

Of these convictions, Macchione challenges only the latter, contending that the trial court committed reversible error in denying his motion to dismiss that charge. 

Macchione v. State, 2013 WL 5575560 (Florida Court of Appeals – 5th District 2013).

In his motion to dismiss and again on appeal, Macchione claimed “the threatening electronic communications in the form of Twitter postings and YouTube videos were not prohibited by § 836.10 when he composed and transmitted them in 2009.”  Macchione v. State, supra.  The appeal arose from the fact that he entered a plea to the charge and reserved the right to appeal the denial of his motion to dismiss. Macchione v. State, supra.

In addressing Macchione’s argument, the court notes that the

facts and circumstances surrounding the commission of this offense are not particularly helpful to the resolution of the issue before us. It is enough simply to say that the threats to harm and kill the victim were contained in YouTube videos and Twitter postings and that all of the charged communications were stipulated by the State to be electronic communications composed and transmitted in 2009.

Macchione v. State, supra.  The news stories you can find here and here provide some of the facts involved in the crime(s).

Macchione’s challenge to his conviction under Florida Statutes § 836.10 arose from the statute’s “historical development”.  Macchione v. State, supra.  The Court of Appeals noted that

[t]he statute was enacted in 1913 and provided that it was a criminal offense `if any person write or compose and also send or procure the sending of any letter or inscribed communication . . . to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent. . . .’ Ch. 6503, Laws of Fla. (1913). The statute has been amended four times since its original enactment, but the first three amendments (the third amendment occurred in 1971) virtually left unchanged the pertinent provisions we are concerned with. 

Macchione v. State, supra. 

The relevant amendment came in 2010, and it made several important changes, which are indicated by the words italicized below:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits, a felony of the second degree punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Macchione v. State, supra (emphasis in the original). The statute as amended in 2010 is the version Macchione was charged under.  Macchione v. State, supra. 

That brings us to the crux of Macchione’s argument.  He claimed this amendment

constitutes a substantive change by including the prohibition against sending a threatening `electronic communication.’ Because it is a substantive change as opposed to a clarification, Macchione further contends that the 2009 version of the statute that he was charged with violating does not make his electronic communications (Twitter postings and YouTube videos) a criminal offense.

He cannot be convicted under the 2010 amendment, he argues, because that would constitute a violation of the constitutional protection against ex post facto laws. The State takes the opposite view, contending that the 2010 amendment to § 836.10 clarified that electronic communications were intended all along by the Legislature to fall within the meaning of the statutory provisions enacted in the 1913 era and therefore no ex post facto violation occurred.

Macchione v. State, supra. 

As to the ex post facto issue, the Court of Appeals explained that the

prohibition against ex post facto laws is found in both the United States and Florida constitutions. U.S. Constitution art. I, § 10; article I, § 10, Fla. Constitution. This constitutional proscription `”forbids the enactment of ‘laws with certain retroactive effects,”’ Shenfeld v. State, 44 So.3d 96 (Florida Supreme Court (2010) (quoting  Stogner v. California, 539 U.S. 607 (2003)), that fall into four general categories. . . .  

Of these categories, the first one, categorizing as an improper ex post facto law `[e]very law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ is applicable here. Shenfeld v. State, supra. . . .

Clarifying amendments are generally not considered substantive enactments because they usually do not make acts criminal that were not previously declared criminal or increase the punishment for offenders. Rather, such amendments are understood as clarifying or explaining the legislative intent that animated enactment of the original statute, and usually do not fit within the parameters of any accepted category of ex post facto law. . . .

Macchione v. State, supra. 

So, as the court noted, “[i]f the 2010 amendment is a clarification of the statute as originally enacted in 1913, as the State contends, Macchione's conviction must be affirmed.”  Macchione v. State, supra.  It explained that courts consider certain factors

when determining whether a statutory amendment is a clarification of existing law that may be applied retroactively. They include: whether the amendment responds to a recent controversy; the span of time between enactment of the original statute and the amendment; and the contents of the title of the bill containing the amendment. Each will be discussed seriatim.

Macchione v. State, supra. 

As to the first factor, the Court of Appeals’

canvass of the pertinent case law revealed no reported decision applying the pre-amendment version of § 836.10 to electronic communications, so we see no controversy created by the courts. We also do not see anything the State has submitted that would suggest a controversy was brewing elsewhere that would prompt the Legislature to enact the amendment.

Macchione v. State, supra. 

As to the “spam of time between enactment of the original statute and the amendment”, the court noted that it

bodes particularly well for Macchione's position that the amendment is not a clarification. In Parole Commission v. Cooper, 701 So.2d 543 (Florida Supreme Court 1997), the court held that `it is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent,’ and in State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55 (Florida Supreme Court 1995), the court held that `[i]t would be absurd . . . to consider legislation enacted more than ten years after the original act as a clarification of original intent. . . . ' 

Here, the pertinent provisions of the statute virtually remained unchanged from the time of its enactment in 1913 until October 1, 2010, and this span of 97 years exceeds more than nine times the ten-year period applied in Cooper and Laforet. And the span of time between the prior amendment in 1971 (which did not alter the pertinent provisions of the statute) and the 2010 amendment is almost three times the ten-year period. See Ramcharitar v. Derosins, 35 So.3d 94 (Florida Court of Appeals 2010). . . .

Macchione v. State, supra. 

Finally, the Court of Appeals noted that courts also

look to the title of the bill where legislative intent is often revealed to see if the Legislature made any indication that the amendment was intended to be a clarification of the statute. See Earth Trades, Inc. v. T & G Corp., 108 So.3d 580 (Florida 2013) (`In the title of the 2003 session law amending section 489.128, the Legislature stated that its intent was to “clarify[ ] that the prohibition on enforcement of construction contracts extends only to enforcement by the unlicensed contractor"'); see also Kasischke v. State, 991 So.2d 803 (Florida Supreme Court 2008) (`We certainly agree that the bill title may be helpful in determining legislative intent’); State v. Webb, 398 So.2d 820 (Florida Supreme Court 1981) (“The title is. . . a direct statement by the legislature of its intent’).

Macchione v. State, supra. 

The title to the 2010 bill that amended Florida Statutes § 836.10 read as follows:

An act relating to threats; amending s. 836.10, Florida Statutes, revising provisions relating to the sending of or procuring the sending of letters or inscribed communications containing certain threats of death or bodily injury; including electronic communications in provisions; providing an effective date.

Macchione v. State, supra. 

The Court of Appeals noted that in Hassen v. State Farm Mutual Automobile Insurance Co., 674 So.2d 106 (1996), the Florida Supreme Court analyzed the effect of “a similar title” and found that the “conclusion that the amendment at issue here was intended to be a substantive rather than a remedial change in the law” was “further” supported by the title of the bill that initiated the amendment.  Macchione v. State, supra. 

The court therefore found that the title of the bill at issue in this case

clearly indicates that the Legislature intended to make a substantive change to be applied prospectively as opposed to a retroactive clarification. The title specifically provides that the amendment is `including electronic communications’ as a separate category theretofore never included in the prohibitions of the statute. Ch.2010–51, § 1, at 381, Laws of Fla. 

Now the amended statute lists three alternative prohibitions, `letter, inscribed communication, or electronic communication’ that may form the basis of a criminal prosecution, whereas before there were only two. . . .

The title also states that an effective date is provided, October 1, 2010, which is well after the date Macchione sent the electronic communications. Ch.2010–51, §§ 1–2, Laws of Fla. When the Legislature provides an effective date for an amendment, it effectively rebuts any argument that the amendment is to be applied retroactively. . . .

Macchione v. State, supra. 

The prosecution argued, “[f]or the first time in its brief (the State did not make this argument to the trial court),” that “the amendment is immaterial because the Twitter postings and YouTube videos fall under the purview of the statute as originally written in 1913.”  Macchione v. State, supra.  The Court of Appeals rejected this argument for two reasons, one which was that it would “strip the amendment of any meaning and render it a collection of useless words enacted for no purpose.” Macchione v. State, supra. 

It also found that the State’s arguments were premised on a

very broad and extravagant interpretation of the statute that draws inference upon inference to arrive at their conclusions. The first inference is that because the Legislature must have been aware of telegrams and telegraphs, which were in use in 1913, it must have intended to include that form of composition and communication in the statute when it was enacted that year. From that inference another inference is drawn that the Legislature must have intended to include all forms of electronic composition and communications when it enacted the root form of the statute in 1913.

And from that inference yet another is drawn, which is that the Legislature intended in 1913 that `mail’ and `inscribed communication’ include threatening Twitter postings and YouTube videos. But the Legislature did not specify telegrams and telegraphs as proscribed threats and it could have easily done so. 

And we hardly think Twitter postings and YouTube videos were intended by the Legislature in 1913 to fall within the plain meaning of the terms `letter’ and `inscribed communication.’

Moreover, as the development and use of electronic communications has grown exponentially over the last two decades to include Twitter postings and YouTube videos, it is beyond the realm of legislative contemplation to suggest that this dramatic growth and these new forms of composition and communications formed the Legislature's intent in 1913 when it first enacted the statute.

Macchione v. State, supra. 

The Court of Appeals therefore held that the “particular threats” Macchione

electronically composed and communicated do not fall within the provisions of the 2009 version of § 836.10. Although these electronic communications are prohibited by the amendment enacted in 2010, that amendment constitutes a substantive change meant to be applied prospectively, and to sustain Macchione's conviction . . . would violate the constitutional proscriptions against ex post facto laws.

We, therefore, reverse his conviction for violating § 836.10 and vacate the sentence imposed for that offense. We remand this case to the trial court to render a corrected judgment and sentence.

Macchione v. State, supra. 

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