Kenneth Isaac Parkerson v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

KENNETH ISAAC PARKERSON,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-1279

[April 29, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Bernard I. Bober, Judge; L.T. Case Nos. 10-

008556CF10A and 11-015806CF10A.

Carey Haughwout, Public Defender, and Zainabu Rumala and Jeffrey

L. Anderson, Assistant Public Defenders, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine

Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant appeals from his convictions and sentences for separate

cases of: (1) burglary of a dwelling with intent to commit video voyeurism;

and (2) voyeurism and burglary of an occupied dwelling with intent to

commit voyeurism. He primarily argues that we should overturn his

convictions because the statutes prohibiting voyeurism and video

voyeurism are facially overbroad. We conclude as a matter of first

impression that the statutes are not facially overbroad and thus are

constitutional. Therefore, we affirm the defendant’s convictions. On other

grounds argued, we reverse the denial of the defendant’s motion to correct

sentencing error and remand for correction of the defendant’s sentences.

In the defendant’s first case, he was seen watching a husband and wife

from the back patio of their home. When the defendant was caught

moments later, he had with him a camera which he tried to smash against

the ground. The state charged the defendant with burglary of a dwelling

with intent to commit video voyeurism, and tampering with evidence.

In the defendant’s second case, a woman was in her bathroom getting

ready to shower when she turned around and saw the defendant on her

back patio watching her. After the police arrested the defendant a few

days later, the state charged the defendant with voyeurism and burglary

of an occupied dwelling with intent to commit voyeurism.

In both cases, the defendant pled no contest to the charges without

reserving his right to appeal.

In a motion for downward departure, the defendant asserted that,

pursuant to section 921.0026(2)(d), Florida Statutes (2013), he required

“specialized treatment for a mental disorder that [was] unrelated to

substance abuse or addiction or for a physical disability, and [that he was]

amenable to treatment.” The state opposed the downward departure

motion.

The circuit court denied the downward departure motion and

adjudicated the defendant guilty on all charges. The court stated:

While I do find that the defendant does require specialized

treatment for a major mental disorder, I do have questions or

doubts about his amenability to treatment based upon his

past history including his past failures to comply with the

taking of medication, and receive treatment in the past albeit

it was a conventional psychologist as opposed to a sex offender

program.

But in any event, I do find that based upon the totality of

the facts, the harm that he has caused to his victims, and his

history of continual troubles of the same nature; in particular

while he was out on bond on one case, he committed the same

type of act whereby his own admission he just could not resist

his impulses.

And based upon the totality of the circumstances I do not

feel a downward departure is warranted even if I were to find

that he qualified for downward departure which I do not find

that.

On both cases’ burglary charges, the court sentenced the defendant to

eight years in prison, followed by two years of community control and five

years of probation, all to run concurrently. On the tampering with

evidence charge in the first case, the court sentenced the defendant to five

years in prison, to run concurrently with the eight-year sentence. On the

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voyeurism charge in the second case, the court sentenced the defendant

to time served.

On the sentences’ community control and probation terms, the court

pronounced that the defendant be subject to the following special

conditions: GPS monitoring; a psychosexual evaluation; counseling at a

sex offender program at a minimum of once per week; psychiatric visits at

least once per month; provision of copies of all medications and

prescriptions to his probation officer; compliance with all medications and

prescriptions; random urine testing; polygraph examinations four times a

year; no victim contact; remaining at least 500 feet away from the victims

and their homes; and payment of all mandatory court costs except

supervision costs. The court noted that it was not designating the

defendant as a sex offender.

However, the written orders of community control and probation

checked off the following pre-printed “Special Conditions”: undergo a

psycho-sexual evaluation, and if treatment is deemed necessary,

successfully complete treatment; sex offender counseling once per week;

random urinalysis for alcohol or illegal drugs; no contact with the victim

or victims’ family, and electronic monitoring. Handwritten in as other

“Special Conditions” were the following: “GPS monitor on CC, take Rx

meds, psychiatrist 1 time per month”; “sex offender conditions apply”; and

“subjected to polygraph four (4) times per year” (emphasis added).

The defendant appealed his convictions and sentences. While his

appeal was pending, he filed a Florida Rule of Criminal Procedure

3.800(b)(2) motion to correct sentencing error. See Fla. R. Crim. P.

3.800(b)(2) (2013) (“If an appeal is pending, a defendant or the state may

file in the trial court a motion to correct a sentencing error.”). The motion

alleged that the orders of community control and probation contained the

handwritten notation “sex offender conditions apply” which the court did

not orally pronounce at sentencing. The court denied the defendant’s

motion. The defendant also has appealed from the denial of that motion.

The defendant primarily argues that we should overturn his convictions

because the statutes prohibiting voyeurism and video voyeurism are

facially overbroad. The defendant also argues that the circuit court erred

in denying his motion to correct sentencing error because the orders of

community control and probation included the handwritten notation “sex

offender conditions apply” which the court did not orally pronounce at

sentencing.

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We initially address the standard of review of an unpreserved facial

challenge for overbreadth. We then address separately the defendant’s

facial challenge to the video voyeurism statute and his facial challenge to

the voyeurism statute. We conclude by addressing the defendant’s motion

to correct sentencing error.

Standard of Review of an Unpreserved Facial Challenge for Overbreadth

A defendant who pleads no contest to a violation of a statute without

reserving the right to appeal has waived the right to challenge the statute’s

constitutionality on appeal. Rodriquez v. State, 591 So. 2d 211, 211-12

(Fla. 4th DCA 1991). However, “[a] facial challenge to a statute’s

constitutional validity may be raised for the first time on appeal . . . if the

error is fundamental.” State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993)

(citations omitted). “The application of an unconstitutional statute

constitutes fundamental error, whereas unconstitutional application of an

otherwise constitutional statute does not.” Emiddio v. Fla. Office of Fin.

Regulation, 147 So. 3d 587, 592 (Fla. 4th DCA 2014) (citation and

quotation marks omitted). Thus, we are required to examine the

constitutionality of the statutes at issue here.

“A court’s decision regarding the constitutionality of a statute is

reviewed de novo as it presents a pure question of law. There is a strong

presumption that a statute is constitutionally valid, and all reasonable

doubts about the statute’s validity must be resolved in favor of

constitutionality.” State v. Catalano, 104 So. 3d 1069, 1075 (Fla. 2012)

(citations omitted). “As a result, the party challenging the constitutionality

of a statute bears a heavy burden of establishing its invalidity.”

Montgomery v. State, 69 So. 3d 1023, 1026 (Fla. 5th DCA 2011) (citation

omitted).

“The overbreadth doctrine applies when legislation criminalizes

constitutionally protected activities along with unprotected activities, by

sweeping too broadly and infringing upon fundamental rights.” Catalano,

104 So. 3d at 1077 (citation omitted). “In the context of the First

Amendment, the overbreadth doctrine prohibits the Government from

banning unprotected speech if a substantial amount of protected speech

is prohibited or chilled in the process.” Id. (citations, quotation marks,

and brackets omitted). As the Third District further has explained:

The doctrine of overbreadth permits an individual whose

own speech or conduct may be prohibited to challenge an

enactment facially because it also threatens others not before

the court – those who desire to engage in legally protected

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expression but who may refrain from doing so rather than risk

prosecution or undertake to have the law declared partially

invalid. In other words, the issue of overbreadth is one of the

few exceptions to the traditional rules that courts will not

consider factual questions beyond the scope of the case at

hand. Hypothetical consequences are considered in the case

of allegedly overbroad statutes precisely because this is the

only way to give effect to the constitutional right of free speech.

....

It is said, however, that in the arena of free speech and

expression, the overbreadth doctrine is an unusual remedy

which is to be used sparingly, particularly where the

challenged statute is primarily meant to regulate conduct and

not merely pure speech.

J.L.S. v. State, 947 So. 2d 641, 644-45 (Fla. 3d DCA 2007) (internal

quotation marks and citations omitted).

The defendant, as the party challenging the statutes at issue, “bears

the burden of demonstrating from both the text of the statute and from

actual facts that substantial overbreadth exists.” Id. at 645. Therefore, in

our analysis of each statute, “we first look at the language of the statute

itself.” Catalano, 104 So. 3d at 1075 (citations omitted).

Overbreadth Challenge to the Video Voyeurism Statute

The video voyeurism statute, section 810.145, Florida Statutes (2010),

provides, in pertinent part:

(2) A person commits the offense of video voyeurism if that

person:

(a) For his or her own amusement, entertainment, sexual

arousal, gratification, or profit, or for the purpose of degrading

or abusing another person, intentionally uses or installs an

imaging device to secretly view, broadcast, or record a person,

without that person’s knowledge and consent, who is

dressing, undressing, or privately exposing the body, at a

place and time when that person has a reasonable expectation

of privacy[.]

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§ 810.145(2)(a), Fla. Stat. (2010). Section 810.145(5), Florida Statutes

(2010), provides the following exemptions from the video voyeurism

prohibition:

(a) Law enforcement agency conducting surveillance for a law

enforcement purpose;

(b) Security system when a written notice is conspicuously

posted on the premises stating that a video surveillance

system has been installed for the purpose of security for the

premises;

(c) Video surveillance device that is installed in such a

manner that the presence of the device is clearly and

immediately obvious; or

(d) Dissemination, distribution, or transfer of images subject

to this section by a provider of an electronic communication

service as defined in 18 U.S.C. s. 2510(15), or a provider of a

remote computing service as defined in 18 U.S.C. s. 2711(2)

....

§ 810.145(5)(a)-(d), Fla. Stat. (2010).

The defendant argues that section 810.145(2)(a) is overbroad by

infringing upon First Amendment protected conduct in two respects:

(1) the statute severely restricts the freedom of the press because

investigative journalists often use imaging devices to record individuals

who may be involved in amoral or illegal activities to expose those activities

to the public, and such investigative work runs afoul of the statute if the

imaging device incidentally films a person in a state of undress; and (2)

the prohibition on the use of imaging devices for “profit” is problematic for

those such as private investigators who record as part of their legitimate

business, because if such investigations happen to record someone

dressing, undressing, or in an exposed state, the investigator has violated

the statute as written.

The defendant’s arguments lack merit. Section 810.145(2)(a)’s plain

language does not restrict the press from using or installing imaging

devices if that activity is not for the reporter’s “own amusement,

entertainment, sexual arousal, gratification, or profit, or for the purpose

of degrading or abusing another person.” § 810.145(2)(a), Fla. Stat. (2010).

Rather, such activity presumably would be for the press’s purposes of

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news gathering and news dissemination, and thus not a per se violation of

section 810.145(2)(a).1

Additionally, for two reasons, the defendant lacks standing to argue

that the statute improperly prohibits private investigators from using

imaging devices to record a person for “profit.”

First, such investigation activities do not implicate First Amendment

protected activities and “[t]he overbreadth doctrine applies only if the

legislation is susceptible of application to conduct protected by the First

Amendment.” Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So. 2d 1351,

1353 (Fla. 1984) (citations and internal quotation marks omitted). See

also Wells v. State, 402 So. 2d 402, 405 (Fla. 1981) (“[The defendant] has

no standing to challenge [the statute] as overbroad. . . . [S]he has made

no assertion that the statute inhibits activities protected by the first

amendment.”) (emphasis added; internal citation omitted).

Second, the state plainly prosecuted the defendant for using his camera

“[f]or his . . . own amusement, sexual arousal, [or] gratification,” and not

for “profit.” As such, the defendant lacks standing to challenge the

statutory term “profit.” Cf. Pallas v. State, 636 So. 2d 1358, 1363-64 (Fla.

3d DCA 1994) (“Defendant was not prosecuted for following the victim.

1 We do not intend the foregoing paragraph to be construed as providing the

press with carte blanche to use or install an imaging device “to secretly view,

broadcast, or record a person, without that person’s knowledge and consent, who

is dressing, undressing, or privately exposing the body, at a place and time when

that person has a reasonable expectation of privacy.” § 810.145(2)(a), Fla. Stat.

(2010). That issue is not before us, and our supreme court already has

commented on a similar issue in Shevin v. Sunbeam Television Corp., 351 So. 2d

723 (Fla. 1977), which upheld section 934.03(2)(d), Florida Statutes (1969),

prohibiting the interception of certain wire or oral communications unless all

parties thereto give prior consent. Analyzing that statute, the court commented:

News gathering is an integral part of news dissemination, but

hidden mechanical contrivances are not indispensable tools of news

gathering. The ancient art of investigative reporting was

successfully practiced long before the invention of electronic

devices, so they cannot be said to be “indispensable tools of

investigative reporting.” The First Amendment is not a license to

trespass or to intrude by electronic means into the sanctity of

another’s home or office. It does not become such a license simply

because the person subjected to the intrusion is reasonably

suspected of committing a crime.

Id. at 727.

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Instead he was prosecuted under the ‘harassment plus threat’ portion of

the statute. In our view[,] defendant is without standing to challenge the

statutory term ‘follows’ on grounds of vagueness.”) (citations omitted).

Even if the defendant had standing to challenge profit-related activities

such as private investigations, we conclude that a plain distinction exists

between “profit” as an incidental effect of an investigation-related business

and “profit” as a pure commercial purpose. Cf. Gawker Media, LLC v.

Bollea, 129 So. 3d 1196, 1202 n.6 (Fla. 2d DCA 2014) (“We are aware that

[the defendant] is likely to profit indirectly from publishing the report with

video excerpts to the extent that it increases traffic to [its] website.

However, this is distinguishable from selling the [recording] purely for

commercial purposes.”).

Overbreadth Challenge to the Voyeurism Statute

The voyeurism statute, section 810.14, Florida Statutes (2011),

provides, in pertinent part:

(1) A person commits the offense of voyeurism when he or

she, with lewd, lascivious, or indecent intent, secretly

observes another person when the other person is located in

a dwelling, structure, or conveyance and such location

provides a reasonable expectation of privacy.

§ 810.14(1), Fla. Stat. (2011).2

2 In 2014, the Legislature amended section 810.14 as follows, in pertinent part:

(1) A person commits the offense of voyeurism when he or she, with

lewd, lascivious, or indecent intent:

(a) Secretly observes another person when the other person is

located in a dwelling, structure, or conveyance and such location

provides a reasonable expectation of privacy.

(b) Secretly observes another person’s intimate areas in which the

person has a reasonable expectation of privacy, when the other

person is located in a public or private dwelling, structure, or

conveyance. As used in this paragraph, the term “intimate area”

means any portion of a person’s body or undergarments that is

covered by clothing and intended to be protected from public view.

§ 810.14(1), Fla. Stat. (2014).

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The defendant argues that section 810.14(1) is overbroad because,

unlike section 810.145(2)(a), section 810.14(1) does not require that the

defendant’s observation of the other person be conducted “without that

person’s knowledge and consent.” § 810.145(2)(a), Fla. Stat. (2010). In

support of this argument, the defendant provides examples of non-

criminal behavior which he contends section 810.14(1) transforms into

criminal behavior: reality television show contestants living in a home

continually observed by cameras; and exhibitionists agreeing to a voyeur

observing them in their home.

We conclude the defendant lacks standing to raise this argument and,

in any event, his argument and examples fail on their merits.

The defendant lacks standing to raise this argument for two reasons.

First, an argument centered upon whether a defendant observes another

person “without that person’s knowledge or consent” does not implicate

First Amendment protected activities, and “[t]he overbreadth doctrine

applies only if the legislation is susceptible of application to conduct

protected by the First Amendment.” Se. Fisheries Ass’n, 453 So. 2d at

1353 (citation and internal quotation marks omitted); see also Wells, 402

So. 2d at 405.

Second, the record plainly indicates that the defendant’s observation of

the victims in these two cases was conducted “without [their] knowledge

and consent.” As such, the defendant lacks standing to challenge the

hypothetical situation where a defendant is charged with voyeurism for

observing another person with their knowledge and consent. Cf. Pallas,

636 So. 2d at 1363-64.

The defendant’s argument also fails on the merits. Section 810.14(1)

requires that the voyeur “secretly” observe another person and that the

person being observed is located where there is a “reasonable expectation

of privacy.” § 810.14(1), Fla. Stat. (2011). These qualifying words exclude

the defendant’s hypothetical situation where a defendant is charged with

voyeurism for observing another person with their knowledge and consent.

If a person knows and consents to being observed in a location, such

observation is not being done “secretly” and the person being observed has

no “reasonable expectation of privacy” in that location.

The defendant’s examples similarly do not hold water. Reality television

show contestants living in a home continually observed by cameras, and

exhibitionists agreeing to a voyeur observing them in their home, are not

being observed “secretly,” and have no “reasonable expectation of privacy”

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in the location in which they are being observed, because they know of and

have consented to such observations.

Sentencing Error

The defendant also argues that the circuit court erred in denying his

motion to correct sentencing error where the orders of community control

and probation contained the handwritten notation “sex offender conditions

apply” which the court did not orally pronounce at sentencing. Our review

of this argument is de novo. See Smith v. State, 143 So. 3d 1023, 1024

(Fla. 4th DCA 2014) (“Because a motion to correct a sentencing error

involves a pure issue of law, our standard of review is de novo.”) (citation

and quotation marks omitted).

We agree with this argument. The defendant was not convicted of any

of the sex offenses specified in section 948.30, Florida Statutes (2013),

which imposes standard general conditions of probation or community

control for those specified sex offenses.3 Therefore, any conditions which

the court imposed on the defendant’s community control and probation

terms became “special conditions” which had to be orally pronounced

before they could be placed in the orders of community control and

probation. Our supreme court explained this requirement in Lawson v.

State, 969 So. 2d 222 (Fla. 2007):

This Court has distinguished between special conditions and

general conditions on the issue of how much due process is

owed to a probationer. General conditions, which are

contained within the Florida Statutes, must be included

within the order but need not be orally pronounced at the

sentencing hearing. Special conditions, which are those not

specifically authorized by statute, must be orally pronounced

at sentencing before they can be placed in the probation order.

The reason for the distinction relates to due process, such that

a probationer is imputed with notice as to those conditions

that are based upon statute but not as to those conditions

that were uniquely drafted for purposes of his or her

probation. Thus, in order to satisfy due process and provide

a probationer with adequate notice, the trial court must orally

pronounce any special condition at sentencing.

Id. at 227 n.3 (internal citations omitted).

3 We leave it to the Legislature to determine if it should add voyeurism and

video voyeurism to the sex offenses specified in section 948.30.

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Here, at sentencing, the court did not orally pronounce that “sex

offender conditions apply” to the defendant’s community control and

probation terms. Instead, the court orally pronounced which special

conditions it was imposing upon those terms, and only those orally

pronounced special conditions could have been placed in the orders of

community control and probation. Thus, the court erred in denying the

defendant’s motion to correct sentencing error, which sought to strike from

the orders of community control and probation the handwritten notation

“sex offender conditions apply” which the court did not orally pronounce

at sentencing. See Justice v. State, 674 So. 2d 123, 126 (Fla. 1996)

(“[W]here a sentence is reversed because the trial court failed to orally

pronounce certain special conditions of probation which later appeared in

the written sentence, the court must strike the unannounced conditions

and cannot reimpose them upon resentencing.”).

The state argues that the handwritten notation “sex offender conditions

apply” simply meant the special conditions which the judge orally

pronounced at sentencing, and did not mean other conditions which the

court did not orally pronounce. The state also argues that, if any

ambiguity exists between the sentencing orders and the pronouncement

in open court, then we should remand the case for “clarification of the

ambiguity between the sentencing order and the pronouncement in open

court.” Russ v. State, 519 So. 2d 715, 716 (Fla. 1st DCA 1988) (citation

omitted).

We disagree with the state’s interpretation of the handwritten notation

“sex offender conditions apply” and see no ambiguity between the

sentencing orders and the pronouncement in open court. The court was

unambiguous in its oral pronouncement as to the special conditions which

it imposed at sentencing, and did not mention any of the other possible

conditions identified in section 948.30, such as a prohibition on viewing,

accessing, owning, or possessing any obscene, pornographic, or sexually

stimulating visual or auditory material. See generally § 948.30, Fla. Stat.

(2013). Thus, only those special conditions which the court orally

pronounced could have been placed in the orders of community control

and probation, and those orders must be corrected to reflect the oral

pronouncement. See Moreland v. State, 853 So. 2d 574, 575 (Fla. 4th DCA

2003 (“Where there is no ambiguity in the trial court’s oral

pronouncement, the sentencing order must be corrected to reflect the oral

pronouncement.”).

Conclusion

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The voyeurism and video voyeurism statutes plainly are “primarily

meant to regulate conduct and not merely pure speech.” J.L.S., 947 So.

2d at 644-45 (citation omitted). To paraphrase our sister court when

analyzing a different statute, there has been no demonstration in this

record that sections 810.145 or 810.14 would prohibit a substantial

amount of protected speech in relation to their otherwise legitimate

applications. Id. at 645-46 (citations omitted). Thus, because any

applications of sections 810.145 and 810.14 which violate the First

Amendment can be remedied through as-applied litigation, we decline to

use the “strong medicine” of overbreadth to invalidate these statutes. Id.

at 646.

Based on the foregoing, we affirm the defendant’s convictions. We also

conclude without further discussion that the defendant’s other arguments

for reversal of his convictions and sentences lack merit. We reverse only

the denial of the defendant’s motion to correct sentencing error for the

reasons stated above, and remand with directions to the court to strike

from the orders of community control and probation the handwritten

notation “sex offender conditions apply” which the court did not orally

pronounce at sentencing.

Affirmed in part, reversed in part, and remanded only for correction of

sentences.

WARNER and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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