Opinion
No. 44923.
July 2, 1975.
Appeal from the Circuit Court, Orange County, Frank N. Kaney, J.
Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellant.
Tom K. Dougherty, Hovis, Baird Dougherty, Clermont, for appellee.
This is an appeal by the State from an order of the County Court for Orange County granting the defendant's motion to dismiss on the basis that the Florida loitering statute, Section 856.021, Florida Statutes, is unconstitutional. The order being final in nature, we have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.
Burnsed v. Seaboard Coastline Railroad Company, 290 So.2d 13 (Fla. 1974).
Subsequent to the filing of the instant appeal, this Court rendered its decision in State v. Ecker, 311 So.2d 104 (Fla. 1975), in which we held the subject statute to be constitutional, subject to the conditions and limitations therein expressed.
The order of the trial court is accordingly reversed, and this cause is remanded to the trial court for further proceedings not inconsistent with our opinion in State v. Ecker, supra.
It is so ordered.
ADKINS, C.J., and ROBERTS and ENGLAND, JJ., concur.
BOYD, J., dissents with an opinion.
I respectfully dissent to the majority view based upon Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) and City of Portland v. White, 9 Or. App. 239, 495 P.2d 778 (1972) considered in the dissenting opinion by Justice Richard W. Ervin, now retired, in State v. Ecker, supra, in which I concurred.
It is my firm belief that there are sufficient criminal statutes in existence at this time without the necessity of a catchall loitering statute such as Section 856.021, Florida Statutes. I feel that this statute is unconstitutional because it interferes with the freedom of movement of citizens in the same way as did the old vagrancy statutes which have been stricken down by the courts. No individual should be incarcerated simply because the nature of his conduct does not comport with a standard which a police officer considers proper unless there is actual evidence that a crime has been committed, is being committed or is about to be committed. It requires little imagination to contemplate many situations in which persons could easily be conducting themselves in a manner to arouse the suspicions of police officers without violating any statute or doing any harm to the public good.
For the above reasons, I must respectfully dissent.