Pensacola Circuit Court in Pensacola, Florida is currently involved in a case you don’t see often in this “neck of the woods” – a gang related case. In Florida is someone commits a crime while part of a gang they are subject to enhanced penalties under Florida’s Criminal Street Gang Prevention Act, Fla. Stat. 874.04. As an example of this Florida law, someone who is charged with a crime that is otherwise a 3rd degree felony, is subject to the penalties of a 2nd degree felony. In other words, every degree of crime, be it a third, second or first degree, felony or misdemeanor, is enhanced one offense level merely because the defendant was involved in a gang. The problem arises when and how do you, or the State, define what is or isn’t a gang or if a person is involved in a criminal gang.
In many cities, if young people are not in a “gang” they have no one to socialize with. They are not involved in the gang to commit crimes. Are these “gangs” more like clubs? If someone is a member of a club should they be subject to enhanced penalties? We always have thought that “mere association” with a group is no basis for an enhanced penalty or for that matter a crime. In State v. O.C. 748 So.2d 945 (Fla.,1999), the Florida Supreme Court answered this question to some extent. The court held in O.C. that the statute providing for enhancement of degree of a crime for sentencing purposes based on membership in a criminal street gang did in fact punish mere association and violated a defendant’s substantive due process rights, as the statute punished gang membership without requiring any nexus between criminal activity and gang membership and thus lacked rational relationship to legislative goal of reducing gang violence or activity. In other words if the person committing the crime did so without any relation to gang activities he should not be subject to enhanced penalties. The Court found the statute over broad and too vague to be constitutional.
In Wyche v. State, 619 So.2d 231, 237-38 (Fla.1993), the Florida Supreme Court invalidated a Tampa ordinance making it illegal to loiter in a manner manifesting the purpose of procuring sex for hire. Under the ordinance, a person who was a “known prostitute” could be convicted for beckoning to motor vehicle operators to stop. See Id. at 235. The Court found that not only was the statute vague and over broad, but it also violated a citizen’s substantive due process rights because it ” ‘unjustifiably transgress[ed] the fundamental restrictions on the power of government to intrude upon individual rights and liberties’ ” by “punish[ing] entirely innocent activities” such as hailing a cab or signaling to a friend in an automobile. Id. at 237. Can you imagine the potential problems of such an ordinance. You and your spouse take a cab to a restaurant, eat, enjoy the meal and while you are fumbling to pay the bill, your wife or husband hails a cab and the next thing you know is a tired law enforcement officer think he recognizes your spouse as someone he has seen on the street before and before you know it she or he is hauled off charged with “beckoning a motor vehicle to stop.” What a way to spoil an evening in Florida.