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.
No comments:
Post a Comment