Citation Codes

Equivalent Citations

citation codes

Docket Number

Nos. 80-1691, 81-444.

Attorney(S)

Alan H. Schreiber, Public Defender, Peter F. LaPorte, Asst. Public Defender, and Lee F. Carney, Legal Intern, Fort Lauderdale, Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant-Lofton. Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant-Deandrea. Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer and Russell S. Bohn, Asst. Attys. Gen., West Palm Beach, for appellee.

Acts

Crimes — Arson And Criminal Mischief — Arson

See more information ...

Smart Summary

Summary of Opinion: Lofton v. State (Fourth District Court of Appeal of Florida)

Caption: Joseph Lofton, Appellant v. State of Florida, Appellee; Albert P. Deandrea, Appellant v. State of Florida, Appellee (consolidated)

Docket Nos.: 80-1691, 81-444

Court: District Court of Appeal of Florida, Fourth District

Date: July 28, 1982

Authoring Judge: Judge Downey (opinion on petition for rehearing); Anstead, J., and Owen, W.C., Jr., (Ret.) concur.

Factual and Procedural Background

This consolidated opinion arises from appeals concerning the constitutionality of Section 806.01(1)(a), Florida Statutes (1979), the State's arson statute as amended in 1979. The parties in Deandrea agreed that the decision in Lofton should control, so the court addressed Lofton's case specifically.

Procedurally, Joseph Lofton was charged with arson under Section 806.01(1)(a). He moved to dismiss the information asserting the statute was unconstitutional. The trial court denied the motion. Lofton then pleaded nolo contendere to attempted arson while reserving the right to appeal the denial of the motion to dismiss. The trial court accepted the plea and placed Lofton on two years' probation.

In support of the plea, the State proffered facts it could prove at trial: Lofton had been a tenant who was evicted for rent arrears; with the landlord's consent he briefly returned to remove belongings; shortly thereafter Lofton told a next-door neighbor he had started a fire and suggested the neighbor tell the landlord to call the fire department. By the time firefighters arrived the fire was out. Two expert witnesses would testify the fire was deliberately set and limited to the bed and material on it.

Separately, after issuance of the opinion dated June 16, 1982, appellant petitioned for rehearing pointing out an erroneous statement of law regarding legal malice in arson. The court granted the petition for rehearing, modified the opinion to eliminate the erroneous statement, and republished the opinion as modified.

Legal Issues Presented

Whether Section 806.01(1)(a), Florida Statutes (1979) — as amended to prohibit the "willful and unlawful" burning of a dwelling or its contents — is unconstitutional on the ground that substituting "unlawful" for "malicious" leaves the statute without an adequate standard of proscribed conduct (i.e., whether the statute is unconstitutionally vague or otherwise deficient for replacing proof of malice/evil intent with "unlawful").
Whether the term "contents" (in the amended statute's prohibition on burning "any dwelling ... or its contents") is unconstitutionally vague, such that ordinary lawful acts (for example, a homeowner burning furniture in a fireplace) could be swept within the statute.

Arguments of the Parties

Appellant's Arguments

The substitution of the word "unlawfully" for the traditional common-law term "maliciously" eliminates the malice requirement and thus leaves the statute without an adequate standard of proscribed conduct; malice at common law required proof of evil intent, and the term "unlawfully" is insufficiently precise to inform an ordinary person of what conduct is prohibited.
The term "contents" is vague; for example, a homeowner who deliberately burns his furniture in a fireplace might be subject to prosecution under the statute despite engaging in what could be a lawful act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gould v. State, 312 So.2d 225 (Fla. 1st DCA 1975)	Illustration of the difficulty in proving "malice" under the former statute — the court in Gould reversed an arson conviction where proof of malice was lacking (defendant burned his own house to defraud an insurer).	The court cited Gould as an example of how the prior requirement to prove malice (evil intent) made arson convictions difficult to obtain and to explain the legislative purpose for substituting "unlawfully" for "maliciously" in the 1979 amendment.

Court's Reasoning and Analysis

The court began by describing the 1979 amendment to Section 806.01: it replaced the prior language "willful and malicious" with "willful and unlawful" and specifically prohibited willful and unlawful burning of "the contents" of certain dwellings and specified structures. The court reproduced the statutory text of Section 806.01 (as of 1981) to show the scope of the statute.

Addressing appellant's contention that the substitution of "unlawfully" for "maliciously" left the statute without an adequate standard, the court reasoned as follows:

At common law and under the former statute, proof of malice (an evil intent) was required, and proving such malice often proved difficult in practice.
The court cited Gould v. State, 312 So.2d 225 (Fla. 1st DCA 1975), as an example where an arson conviction was reversed for lack of proof of malice (insured-fire scenario), illustrating the evidentiary difficulty created by the malice requirement.
The Legislature, to alleviate that problem, substituted "unlawfully" for "maliciously." The court interpreted this change to mean the State need not prove an evil intent; rather, the State must show the defendant's willful act was done without a legitimate, lawful purpose — i.e., an act performed willfully and without lawful justification or purpose.
On the vagueness challenge to the term "contents," the court considered appellant's hypothetical (homeowner burning furniture in fireplace) and concluded the hypothesis described a lawful act and therefore would not fall within the proscribed "willful and unlawful" conduct. The court held the term "contents" is not vague in this statutory context.

On the basis of this interpretation and analysis, the court concluded the statute provided an adequate standard of proscribed conduct and was not unconstitutionally vague or defective as argued by appellant.

Holding and Implications

HOLDING: The convictions in these consolidated cases are AFFIRMED.

Implications:

The court held Section 806.01, as amended in 1979 to prohibit "willful and unlawful" burning and to include the "contents" of dwellings, is constitutional against the vagueness and malice-related challenges raised by appellant.
The direct effect of the decision is to affirm the trial court's denial of Lofton's motion to dismiss and to affirm the conviction (and the corresponding disposition) in both consolidated cases.
The opinion explains and endorses the legislative judgment to replace the malice requirement with an "unlawful" standard meaning a willful act without a legitimate lawful purpose; the court does not purport to announce a broader rule beyond the immediate constitutional determination and the affirmance in these cases.

Opinion issued on petition for rehearing; the petition was granted, the opinion modified to remove an erroneous statement regarding legal malice, and the modified opinion was republished.

Show full summary ...

JOSEPH LOFTON, APPELLANT, v. STATE OF FLORIDA, APPELLEE. ALBERT P. DEANDREA, APPELLANT,

ON PETITION FOR REHEARING

DOWNEY, Judge.

By petition for rehearing appellant points out that our opinion, issued June 16, 1982, contains an erroneous statement of the law regarding legal malice in arson. While we adhere to our decision generally, we have modified our opinion to eliminate the aforesaid statement. Accordingly, appellant's petition for rehearing is granted, our opinion is modified, and as so modified it is republished.

These consolidated cases involve the constitutionality of Section 806.01(1)(a), Florida Statutes (1979), commonly known as the Arson Statute. The parties in Deandrea v. State, Case No. 81-444, have agreed that the decision in Lofton v. State, Case No. 80-1691, should control in both cases. Accordingly, we shall deal specifically with the Lofton case.

The State charged appellant, Joseph Lofton, with arson pursuant to Section 806.01(1)(a), Florida Statutes (1979). Lofton moved to dismiss the information on the ground that the statute is unconstitutional. When the trial court denied that motion, Lofton pleaded nolo contendere to attempted arson, reserving the right to appeal the denial of the motion to dismiss. In presenting a factual basis for the plea, the State indicated it was prepared to prove that appellant had been a tenant of the subject premises and was evicted because his rent was in arrears. Appellant asked the landlord if he could go back into the apartment to remove his belongings and the landlord consented. A short time later, appellant told a next door neighbor he had started a fire and suggested the neighbor tell the landlord to call the fire department. By the time the fire department arrived the fire was out. Two expert witnesses would testify that the fire, which was limited to the bed and some material on top of it, had been deliberately set. The trial court accepted the plea and placed appellant on probation for two years.

Appellant contends the trial court erred in denying his motion to dismiss on the grounds the statute is unconstitutional.

The statute in question was amended effective June 1, 1979. The amendment contained two major changes: 1) the new amendment prohibited the "willful and unlawful" burning, as opposed to the "willful and malicious" burning contained in the prior statute, and 2) it prohibited the willful and unlawful burning of the contents of a dwelling and specified structures.

Section 806.01, Florida Statutes (1981), provides as follows:
(1) Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged:
(a) Any dwelling, whether occupied or not, or its contents;
(b) Any structure, or contents thereof, where persons are normally present, such as: Jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
(c) Any other structure that he knew or had reasonable grounds to believe was occupied by a human being,
is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Any person who willfully and unlawfully by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) As used in this chapter, "structure" means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances thereto, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.

Appellant contends that the common law definition of arson involved malice and that substitution of the term unlawful for the traditional term malicious leaves the statute without an adequate standard of proscribed conduct. We disagree.

Under the former statute, arson convictions were difficult to obtain because of the problems inherent in proving malice, i.e., the defendant's evil intent. For example, in Gould v. State, 312 So.2d 225 (Fla. 1st DCA 1975), the First District Court of Appeal reversed the arson conviction of a defendant who had burned his own house with intent to defraud the insurer of the house because proof of malice was lacking.

Fla. Stat. § 806.01: Florida Arson Law — Evolution of the 1979 Amendments, 8 F.S.U.L. Rev. 81 (1980).

In order to alleviate this problem, the Legislature substituted the word "unlawfully" for the word "maliciously." Under this new wording the State need not prove an evil intent on the part of the perpetrator. It need only be shown that the willful act was done without a legitimate, lawful purpose.

Lofton also contends the statute is vague because the term "contents" is itself vague. Rhetorically he asks whether a homeowner would be guilty of arson by willfully breaking up and burning his furniture in his fireplace on a cold night. In our judgment the obvious answer is no because the act described is not unlawful. In any event, we hold the term is not vague.

After consideration of Lofton's contentions regarding the constitutionality of Section 806.01, we are convinced the trial judge properly concluded the statute is constitutional. Accordingly we affirm the conviction in both of these consolidated cases.

AFFIRMED.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

LOFTON v. STATE