State v. Fasano

284 So. 2d 683 (1973)

STATE of Florida, Appellant, v. Sammy FASANO and Charles Swindle, Appellees.

No. 43594.

Supreme Court of Florida.

October 17, 1973.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellant.

John D. Demmi, Tampa, for appellees.

McCAIN, Justice.

This is a direct appeal from an order of the County Court in and for Hillsborough County which passed upon the validity of Fla. Stat. § 800.02, F.S.A. (1971). We have jurisdiction pursuant to Art. V, § 3(b)(1), Florida Constitution, F.S.A.

The appellees were charged by a direct information with having committed an unnatural and lascivious act in violation of Fla. Stat. § 800.02, F.S.A. (1971), which provides:

"Whoever commits any unnatural and lascivious act with another person shall be guilty of a misdemeanor of the second degree."

On March 8, 1973, the appellees filed a motion to dismiss contending, among other things, that the statute was unconstitutionally vague, indefinite and uncertain. After argument, the court below granted the motion to dismiss on the grounds that the statute was unconstitutional. This appeal followed.

On May 30, 1973, we passed upon the validity of the statute in question and specifically found the same to be facially valid. Witherspoon v. State, 278 So. 2d 611 (Fla. 1973). Our decision in Witherspoon makes it patently clear that the order appealed is erroneous. Therefore this cause should be and is reversed and remanded for further proceedings.

It is so ordered.

CARLTON, C.J., and ROBERTS and DEKLE, JJ., concur.

ERVIN, J., dissents.