Smith v. Florida

LOCATION: Circuit Court of Cook County, Juvenile Division

DOCKET NO.: 70-5055
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Florida Supreme Court

CITATION: 405 US 172 (1972)
ARGUED: Dec 08, 1971
DECIDED: Feb 24, 1972

Nelson E. Bailey - for respondent, pro hac vice, by special leave of Court
Phillip A. Hubbart - for petitioners

Facts of the case


Media for Smith v. Florida

Audio Transcription for Oral Argument - December 08, 1971 in Smith v. Florida

Warren E. Burger:

We will hear arguments next, number 5055 Smith and McClain against Florida.

Mr. Hubbart.

Phillip A. Hubbart:

Mr. Chief Justice may it please the Court.

I move that Nelson Bailey be permitted to argue pro hac vice on behalf of the respondent in this case.

He is a member in good standing of the bar of the of State of Florida but he has been a member for less than three years.

Warren E. Burger:

Your motion will be granted.

Phillip A. Hubbart:

This case is here on a petition for writ of certiorari to the Supreme Court of Florida to review a decision upholding the constitutionality of a wander on this section of Florida’s vagrancy statute against an attack made and considered by the Florida Supreme Court and rejected that violated the Due Process clause of the Fourteenth Amendment for vagueness and over breath.

In this particular case the petitioners were charged in a criminal Court of record and in four day County at Florida by an information filed by the State Attorney charging the defendants and tracking the exact language of the statute 856.02 which is before this Court to review charging that a petitioners were “vagrants by wandering and strolling around from place to place without any lawful purpose or objective.”

To this charge the petitioners entered a plea of not guilty and waived trial by jury.

At the time of the trial, the defense counsel made an oral motion to dismiss this particular charge on the grounds that the statute was void for vagueness and consequently violated Due Process clause for the Fourteenth Amendment.

That motion was denied and the trial judge made a specific finding of the statute in question “crystal clear.”

He furthermore entered a written order in which he found that the statute was “constitutional” within the meaning of the Due Process clause of Fourteenth Amendment of the United State Constitution.

A motion for new trial was is filed in this case attacking the statute not only in the grounds that it was too vague but also on the ground of over breath and that motion was denied and again the trial Court specifically ruled that the statute was constitutional within the meaning of the Due Process clause.

Question has been raised as to whether not the broadness issue was properly raised in the Florida Courts.

That was a contended on the motion for new trial and specifically rejected by the trial judge.

On appeal, the Supreme Court of Florida in a 5:2 decision upheld the constitutionality of a statute and specifically considered and rejected.

In the opinion, the petitioner's dual contentions, the dual contentions made before this Court of the statute was “so broad and vague in nature” as to violate the Due Process clause of the Fourteenth Amendment.

The Court has granted certiorari on the question phrased in the petition for writ of certiorari namely whether the wandering section of the statute in question is so broad and vague in nature as to violate the Due Process clause of the Fourteenth Amendment.

On resolving that issue, I think it is important to examine first the exact language of statute.

Its legislative history and the construction given to it by the Florida Courts.

Statutes provides--.

What was the purpose?

Phillip A. Hubbart:

In this particular case Your Honor the State presented one witness who was guard employed by the sea coast line railroad and he testified that he was patrolling this area in Dade County about 7:30 to 8:00 at night.

He saw a car -- he was in the car and he saw the two petitioners along with the third party walking along the roadway on the public street.

He passed them when he turned around of the corner, he saw them go into a warehouse area.

He saw them go behind the box car which belong to the sea board airline railroad.

And up to the box car he did not see them but he heard some noises from behind the box car and he saw one the petitioners Smith running from that area, he went over and placed him under arrest he went called for some help from highly a police department.

And the petitioners were then placed under arrest.

The petitioners testified in this case that they were never in the railroad yard.

The warehouse yard rather.