Gilbert v. State

659 So. 2d 233 (1995)

David Lewis GILBERT, Petitioner, v. STATE of Florida, Respondent.

No. 84161.

Supreme Court of Florida.

April 27, 1995.

Nancy A. Daniels, Public Defender, and David P. Gauldin, Asst. Public Defender, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, and Parker D. Thomson and Carol A. Licko, Sp. Asst. Attys. Gen., Miami, for respondent.

SHAW, Justice.

We have for review Gilbert v. State, 639 So. 2d 191 (Fla. 1st DCA 1994), wherein the district court certified the following question:

Is section 784.048, Florida Statutes (Supp. 1992), facially unconstitutional as vague and overbroad?

We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

We have found this statute constitutional in Bouters v. State, 659 So. 2d 235 (Fla. 1995). Accordingly, we answer the question in the negative and approve the district court decision on this issue.

It is so ordered.

GRIMES, C.J., and OVERTON, HARDING, WELLS and ANSTEAD, JJ., concur.

KOGAN, J., concurs specially with an opinion.

KOGAN, Justice, specially concurring.

The certified question is overbroad because the sole statute at issue here is subsection 784.048(3), Florida Statutes (Supp. 1992). For that reason, I would rephrase the question as follows:

Is subsection 784.048(3), Florida Statutes (Supp. 1992), facially unconstitutional as vague or overbroad?

I otherwise generally agree with the majority's conclusions, but subject to the reservations I expressed in Bouters v. State, 659 So. 2d 235 (Fla. 1995) (Kogan, J., specially concurring), Varney v. State, 659 So. 2d 234 (Fla. 1995) (Kogan, J., dissenting), and Koshel v. State, 659 So. 2d 232 (Fla. 1995) (Kogan, J., specially concurring).