Florida statutory provision proscribing "the abominable and
detestable crime against nature, either with mankind or beast . . .
," in light of the State Supreme Court's longstanding construction
as applying to copulation per os and per anum,
held not
unconstitutionally vague; and that court's later ruling after
appellees' convictions for those offenses had become final holding
the statute void for vagueness as applied to oral and anal sexual
activity did not require reversal of appellees' convictions, since
the subsequent ruling was prospective only, and, at the time
appellees committed the acts, they were on clear notice that their
conduct was criminal under the statute as then construed.
478 F.2d 390, reversed.
PER CURIAM.
In separate trials, appellees were convicted of violating
Fla.Stat. § 800.01 (1965), which proscribed "the abominable and
detestable crime against nature, either with mankind or with beast.
. . ." [
Footnote 1] Having
exhausted state remedies, [
Footnote
2] appellees sought federal habeas corpus,
Page 414 U. S. 22
asserting, among other things, that the Florida statute was
impermissibly vague. The writ was granted to both appellees. The
Court of Appeals affirmed on the sole ground that § 800.01 was
unconstitutionally vague and void on its face for failure to give
appellees adequate notice that the conduct for which they were
convicted was forbidden by law. 478 F.2d 390 (CA5 1973).
We reverse. We perceive no violation of the
"underlying principle . . . that no man shall be held criminally
responsible for conduct which he could not reasonably understand to
be proscribed."
United States v. Harriss, 347 U.
S. 612,
347 U. S. 617
(1954). Stone was convicted for copulation per os and per anum,
Huffman for copulation per anum. These very acts had long been held
to constitute "the abominable and detestable crime against nature"
under § 800.01 and predecessor statutes.
Delaney v.
State, 190 So. 2d 578
(Fla.Sup.Ct.1966),
appeal dismissed, 387 U.
S. 426 (1967), declared as much; and this had been the
case since 1921 under
Ephraim v. State, 82 Fla. 93, 89 So.
344 (1921).
Delaney also held that there could be no
complaint of vagueness or lack of notice that the defendant's
conduct was criminal where the acts committed were among those
that, prior cases had held covered by the statute.
Delaney and its supporting cases require reversal of
the Court of Appeals. The judgment of federal courts as to the
vagueness or not of a state statute must be made in the light of
prior state constructions of the statute. For the purpose of
determining whether a state statute is too vague and indefinite to
constitute valid legislation, "we must take the statute as though
it read precisely as the highest court of the State has
Page 414 U. S. 23
interpreted it."
Minnesota ex rel. Pearson v. Probate
Court, 309 U. S. 270,
309 U. S. 273
(1940). When a state statute has been construed to forbid
identifiable conduct so that "interpretation by [the state court]
puts these words in the statute as definitely as if it had been so
amended by the legislature," claims of impermissible vagueness must
be judged in that light.
Winters v. New York, 333 U.
S. 507,
333 U. S. 514
(1948). This has been the normal view in this Court.
Fox v.
Washington, 236 U. S. 273,
236 U. S. 277
(1915);
Beauharnais v. Illinois, 343 U.
S. 250,
343 U. S. 253
(1952);
Mishkin v. New York, 383 U.
S. 502,
383 U. S. 506
(1966). The Court of Appeals, therefore, was not free to ignore
Delaney and related cases; and, as construed by those
cases, § 800.01 afforded appellees ample notice that their conduct
was forbidden by law.
Appellees rely on
Franklin v. State, 257 So. 2d 21
(Fla.Sup.Ct.1971), to avoid the efficacy of prior constructions of
§ 800.01. In that case, decided after appellees' convictions had
become final, the Florida Supreme Court reconsidered Delaney and
held that, if § 800.01 was intended to reach oral and anal sexual
activity, that intention should appear on the face of the statute;
otherwise it was void for vagueness and uncertainty in its
language. But this holding did not remove the fact that, when
appellees committed the acts with which they were charged, they
were on clear notice that their conduct was criminal under the
statute as then construed. Thus, the Florida Supreme Court
expressly ruled in
Franklin that "this judgment holding
the felony statute void is not retroactive, but prospective only,"
id. at 24; and subsequently the Florida courts denied
appellee Stone's request for relief based on the
Franklin
case.
Stone v. State, supra, n 2. The State Supreme Court did not overrule
Delaney with respect to pre-
Franklin convictions.
Nor was it constitutionally compelled to do so or
Page 414 U. S. 24
to make retroactive its new construction of the Florida
statute:
"A state in defining the limits of adherence to precedent may
make a choice for itself between the principle of forward operation
and that of relation backward. It may say that decisions of its
highest court, though later overruled, are law none the less for
intermediate transactions."
Great Northern R. Co. v. Sunburst Oil & Refining
Co., 287 U. S. 358,
287 U. S. 364
(1932). Contrary to the judgment of the Court of Appeals, § 800.01
was not void at the time appellees performed the acts for which
they were convicted. The motion of appellees to proceed
in
forma pauperis is granted, and the judgment of the Court of
Appeals is reversed.
So ordered.
[
Footnote 1]
Fla.Stat. § 800.01 (Supp. 1973) presently provides:
"Whoever commits the abominable and detestable crime against
nature, either with mankind or with beast, shall be guilty of a
felony of the second degree, punishable as provided in [other
statutory sections]."
At the time of appellees' convictions, the maximum penalty was
20 years' imprisonment.
[
Footnote 2]
Appellee Stone's conviction was affirmed on direct appeal,
Stone v. State, 245 So. 2d 91 (Fla.Dist.Ct.App. 1971), and
his motion for post-conviction relief was denied.
Stone v.
State, 264 So. 2d 81 (Fla.Dist.Ct.App.),
cert.
denied, 267 So. 2d 329 (Fla.Sup.Ct.1972). It appears that
appellee Huffman appealed from his conviction, but did not seek
collateral relief. The District Court found exhaustion unnecessary
since Huffman's claim had already been determined adversely by the
ruling in
Franklin v. State, 257 So. 2d
21 (Fla.Sup.Ct.1971), discussed in text
infra.