       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                    KENNETH ISAAC PARKERSON,
                            Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-1279

                             [April 29, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard I. Bober, Judge; L.T. Case Nos. 10-
008556CF10A and 11-015806CF10A.

   Carey Haughwout, Public Defender, and Zainabu Rumala and Jeffrey
L. Anderson, Assistant Public Defenders, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine
Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions and sentences for separate
cases of: (1) burglary of a dwelling with intent to commit video voyeurism;
and (2) voyeurism and burglary of an occupied dwelling with intent to
commit voyeurism. He primarily argues that we should overturn his
convictions because the statutes prohibiting voyeurism and video
voyeurism are facially overbroad. We conclude as a matter of first
impression that the statutes are not facially overbroad and thus are
constitutional. Therefore, we affirm the defendant’s convictions. On other
grounds argued, we reverse the denial of the defendant’s motion to correct
sentencing error and remand for correction of the defendant’s sentences.

   In the defendant’s first case, he was seen watching a husband and wife
from the back patio of their home. When the defendant was caught
moments later, he had with him a camera which he tried to smash against
the ground. The state charged the defendant with burglary of a dwelling
with intent to commit video voyeurism, and tampering with evidence.
    In the defendant’s second case, a woman was in her bathroom getting
ready to shower when she turned around and saw the defendant on her
back patio watching her. After the police arrested the defendant a few
days later, the state charged the defendant with voyeurism and burglary
of an occupied dwelling with intent to commit voyeurism.

   In both cases, the defendant pled no contest to the charges without
reserving his right to appeal.

   In a motion for downward departure, the defendant asserted that,
pursuant to section 921.0026(2)(d), Florida Statutes (2013), he required
“specialized treatment for a mental disorder that [was] unrelated to
substance abuse or addiction or for a physical disability, and [that he was]
amenable to treatment.” The state opposed the downward departure
motion.

   The circuit court denied the downward departure motion and
adjudicated the defendant guilty on all charges. The court stated:

          While I do find that the defendant does require specialized
      treatment for a major mental disorder, I do have questions or
      doubts about his amenability to treatment based upon his
      past history including his past failures to comply with the
      taking of medication, and receive treatment in the past albeit
      it was a conventional psychologist as opposed to a sex offender
      program.

         But in any event, I do find that based upon the totality of
      the facts, the harm that he has caused to his victims, and his
      history of continual troubles of the same nature; in particular
      while he was out on bond on one case, he committed the same
      type of act whereby his own admission he just could not resist
      his impulses.

         And based upon the totality of the circumstances I do not
      feel a downward departure is warranted even if I were to find
      that he qualified for downward departure which I do not find
      that.

   On both cases’ burglary charges, the court sentenced the defendant to
eight years in prison, followed by two years of community control and five
years of probation, all to run concurrently. On the tampering with
evidence charge in the first case, the court sentenced the defendant to five
years in prison, to run concurrently with the eight-year sentence. On the

                                     2
voyeurism charge in the second case, the court sentenced the defendant
to time served.

   On the sentences’ community control and probation terms, the court
pronounced that the defendant be subject to the following special
conditions: GPS monitoring; a psychosexual evaluation; counseling at a
sex offender program at a minimum of once per week; psychiatric visits at
least once per month; provision of copies of all medications and
prescriptions to his probation officer; compliance with all medications and
prescriptions; random urine testing; polygraph examinations four times a
year; no victim contact; remaining at least 500 feet away from the victims
and their homes; and payment of all mandatory court costs except
supervision costs. The court noted that it was not designating the
defendant as a sex offender.

   However, the written orders of community control and probation
checked off the following pre-printed “Special Conditions”: undergo a
psycho-sexual evaluation, and if treatment is deemed necessary,
successfully complete treatment; sex offender counseling once per week;
random urinalysis for alcohol or illegal drugs; no contact with the victim
or victims’ family, and electronic monitoring. Handwritten in as other
“Special Conditions” were the following: “GPS monitor on CC, take Rx
meds, psychiatrist 1 time per month”; “sex offender conditions apply”; and
“subjected to polygraph four (4) times per year” (emphasis added).

    The defendant appealed his convictions and sentences. While his
appeal was pending, he filed a Florida Rule of Criminal Procedure
3.800(b)(2) motion to correct sentencing error. See Fla. R. Crim. P.
3.800(b)(2) (2013) (“If an appeal is pending, a defendant or the state may
file in the trial court a motion to correct a sentencing error.”). The motion
alleged that the orders of community control and probation contained the
handwritten notation “sex offender conditions apply” which the court did
not orally pronounce at sentencing. The court denied the defendant’s
motion. The defendant also has appealed from the denial of that motion.

    The defendant primarily argues that we should overturn his convictions
because the statutes prohibiting voyeurism and video voyeurism are
facially overbroad. The defendant also argues that the circuit court erred
in denying his motion to correct sentencing error because the orders of
community control and probation included the handwritten notation “sex
offender conditions apply” which the court did not orally pronounce at
sentencing.



                                     3
   We initially address the standard of review of an unpreserved facial
challenge for overbreadth. We then address separately the defendant’s
facial challenge to the video voyeurism statute and his facial challenge to
the voyeurism statute. We conclude by addressing the defendant’s motion
to correct sentencing error.

 Standard of Review of an Unpreserved Facial Challenge for Overbreadth

    A defendant who pleads no contest to a violation of a statute without
reserving the right to appeal has waived the right to challenge the statute’s
constitutionality on appeal. Rodriquez v. State, 591 So. 2d 211, 211-12
(Fla. 4th DCA 1991). However, “[a] facial challenge to a statute’s
constitutional validity may be raised for the first time on appeal . . . if the
error is fundamental.” State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993)
(citations omitted). “The application of an unconstitutional statute
constitutes fundamental error, whereas unconstitutional application of an
otherwise constitutional statute does not.” Emiddio v. Fla. Office of Fin.
Regulation, 147 So. 3d 587, 592 (Fla. 4th DCA 2014) (citation and
quotation marks omitted).        Thus, we are required to examine the
constitutionality of the statutes at issue here.

    “A court’s decision regarding the constitutionality of a statute is
reviewed de novo as it presents a pure question of law. There is a strong
presumption that a statute is constitutionally valid, and all reasonable
doubts about the statute’s validity must be resolved in favor of
constitutionality.” State v. Catalano, 104 So. 3d 1069, 1075 (Fla. 2012)
(citations omitted). “As a result, the party challenging the constitutionality
of a statute bears a heavy burden of establishing its invalidity.”
Montgomery v. State, 69 So. 3d 1023, 1026 (Fla. 5th DCA 2011) (citation
omitted).

   “The overbreadth doctrine applies when legislation criminalizes
constitutionally protected activities along with unprotected activities, by
sweeping too broadly and infringing upon fundamental rights.” Catalano,
104 So. 3d at 1077 (citation omitted). “In the context of the First
Amendment, the overbreadth doctrine prohibits the Government from
banning unprotected speech if a substantial amount of protected speech
is prohibited or chilled in the process.” Id. (citations, quotation marks,
and brackets omitted). As the Third District further has explained:

         The doctrine of overbreadth permits an individual whose
      own speech or conduct may be prohibited to challenge an
      enactment facially because it also threatens others not before
      the court – those who desire to engage in legally protected

                                      4
      expression but who may refrain from doing so rather than risk
      prosecution or undertake to have the law declared partially
      invalid. In other words, the issue of overbreadth is one of the
      few exceptions to the traditional rules that courts will not
      consider factual questions beyond the scope of the case at
      hand. Hypothetical consequences are considered in the case
      of allegedly overbroad statutes precisely because this is the
      only way to give effect to the constitutional right of free speech.

      ....

      It is said, however, that in the arena of free speech and
      expression, the overbreadth doctrine is an unusual remedy
      which is to be used sparingly, particularly where the
      challenged statute is primarily meant to regulate conduct and
      not merely pure speech.

J.L.S. v. State, 947 So. 2d 641, 644-45 (Fla. 3d DCA 2007) (internal
quotation marks and citations omitted).

    The defendant, as the party challenging the statutes at issue, “bears
the burden of demonstrating from both the text of the statute and from
actual facts that substantial overbreadth exists.” Id. at 645. Therefore, in
our analysis of each statute, “we first look at the language of the statute
itself.” Catalano, 104 So. 3d at 1075 (citations omitted).

          Overbreadth Challenge to the Video Voyeurism Statute

   The video voyeurism statute, section 810.145, Florida Statutes (2010),
provides, in pertinent part:

      (2) A person commits the offense of video voyeurism if that
      person:

      (a) For his or her own amusement, entertainment, sexual
      arousal, gratification, or profit, or for the purpose of degrading
      or abusing another person, intentionally uses or installs an
      imaging device to secretly view, broadcast, or record a person,
      without that person’s knowledge and consent, who is
      dressing, undressing, or privately exposing the body, at a
      place and time when that person has a reasonable expectation
      of privacy[.]



                                      5
§ 810.145(2)(a), Fla. Stat. (2010). Section 810.145(5), Florida Statutes
(2010), provides the following exemptions from the video voyeurism
prohibition:

      (a) Law enforcement agency conducting surveillance for a law
      enforcement purpose;

      (b) Security system when a written notice is conspicuously
      posted on the premises stating that a video surveillance
      system has been installed for the purpose of security for the
      premises;

      (c) Video surveillance device that is installed in such a
      manner that the presence of the device is clearly and
      immediately obvious; or

      (d) Dissemination, distribution, or transfer of images subject
      to this section by a provider of an electronic communication
      service as defined in 18 U.S.C. s. 2510(15), or a provider of a
      remote computing service as defined in 18 U.S.C. s. 2711(2)
      ....

§ 810.145(5)(a)-(d), Fla. Stat. (2010).

    The defendant argues that section 810.145(2)(a) is overbroad by
infringing upon First Amendment protected conduct in two respects:
(1) the statute severely restricts the freedom of the press because
investigative journalists often use imaging devices to record individuals
who may be involved in amoral or illegal activities to expose those activities
to the public, and such investigative work runs afoul of the statute if the
imaging device incidentally films a person in a state of undress; and (2)
the prohibition on the use of imaging devices for “profit” is problematic for
those such as private investigators who record as part of their legitimate
business, because if such investigations happen to record someone
dressing, undressing, or in an exposed state, the investigator has violated
the statute as written.

    The defendant’s arguments lack merit. Section 810.145(2)(a)’s plain
language does not restrict the press from using or installing imaging
devices if that activity is not for the reporter’s “own amusement,
entertainment, sexual arousal, gratification, or profit, or for the purpose
of degrading or abusing another person.” § 810.145(2)(a), Fla. Stat. (2010).
Rather, such activity presumably would be for the press’s purposes of


                                          6
news gathering and news dissemination, and thus not a per se violation of
section 810.145(2)(a).1

   Additionally, for two reasons, the defendant lacks standing to argue
that the statute improperly prohibits private investigators from using
imaging devices to record a person for “profit.”

   First, such investigation activities do not implicate First Amendment
protected activities and “[t]he overbreadth doctrine applies only if the
legislation is susceptible of application to conduct protected by the First
Amendment.” Se. Fisheries Ass’n v. Dep’t of Natural Res., 453 So. 2d 1351,
1353 (Fla. 1984) (citations and internal quotation marks omitted). See
also Wells v. State, 402 So. 2d 402, 405 (Fla. 1981) (“[The defendant] has
no standing to challenge [the statute] as overbroad. . . . [S]he has made
no assertion that the statute inhibits activities protected by the first
amendment.”) (emphasis added; internal citation omitted).

    Second, the state plainly prosecuted the defendant for using his camera
“[f]or his . . . own amusement, sexual arousal, [or] gratification,” and not
for “profit.” As such, the defendant lacks standing to challenge the
statutory term “profit.” Cf. Pallas v. State, 636 So. 2d 1358, 1363-64 (Fla.
3d DCA 1994) (“Defendant was not prosecuted for following the victim.

1   We do not intend the foregoing paragraph to be construed as providing the
press with carte blanche to use or install an imaging device “to secretly view,
broadcast, or record a person, without that person’s knowledge and consent, who
is dressing, undressing, or privately exposing the body, at a place and time when
that person has a reasonable expectation of privacy.” § 810.145(2)(a), Fla. Stat.
(2010). That issue is not before us, and our supreme court already has
commented on a similar issue in Shevin v. Sunbeam Television Corp., 351 So. 2d
723 (Fla. 1977), which upheld section 934.03(2)(d), Florida Statutes (1969),
prohibiting the interception of certain wire or oral communications unless all
parties thereto give prior consent. Analyzing that statute, the court commented:

       News gathering is an integral part of news dissemination, but
       hidden mechanical contrivances are not indispensable tools of news
       gathering.     The ancient art of investigative reporting was
       successfully practiced long before the invention of electronic
       devices, so they cannot be said to be “indispensable tools of
       investigative reporting.” The First Amendment is not a license to
       trespass or to intrude by electronic means into the sanctity of
       another’s home or office. It does not become such a license simply
       because the person subjected to the intrusion is reasonably
       suspected of committing a crime.

Id. at 727.

                                       7
Instead he was prosecuted under the ‘harassment plus threat’ portion of
the statute. In our view[,] defendant is without standing to challenge the
statutory term ‘follows’ on grounds of vagueness.”) (citations omitted).

   Even if the defendant had standing to challenge profit-related activities
such as private investigations, we conclude that a plain distinction exists
between “profit” as an incidental effect of an investigation-related business
and “profit” as a pure commercial purpose. Cf. Gawker Media, LLC v.
Bollea, 129 So. 3d 1196, 1202 n.6 (Fla. 2d DCA 2014) (“We are aware that
[the defendant] is likely to profit indirectly from publishing the report with
video excerpts to the extent that it increases traffic to [its] website.
However, this is distinguishable from selling the [recording] purely for
commercial purposes.”).

               Overbreadth Challenge to the Voyeurism Statute

   The voyeurism statute, section 810.14, Florida Statutes (2011),
provides, in pertinent part:

       (1) A person commits the offense of voyeurism when he or
       she, with lewd, lascivious, or indecent intent, secretly
       observes another person when the other person is located in
       a dwelling, structure, or conveyance and such location
       provides a reasonable expectation of privacy.

§ 810.14(1), Fla. Stat. (2011).2

2   In 2014, the Legislature amended section 810.14 as follows, in pertinent part:

       (1) A person commits the offense of voyeurism when he or she, with
       lewd, lascivious, or indecent intent:

       (a) Secretly observes another person when the other person is
       located in a dwelling, structure, or conveyance and such location
       provides a reasonable expectation of privacy.

       (b) Secretly observes another person’s intimate areas in which the
       person has a reasonable expectation of privacy, when the other
       person is located in a public or private dwelling, structure, or
       conveyance. As used in this paragraph, the term “intimate area”
       means any portion of a person’s body or undergarments that is
       covered by clothing and intended to be protected from public view.

§ 810.14(1), Fla. Stat. (2014).


                                        8
   The defendant argues that section 810.14(1) is overbroad because,
unlike section 810.145(2)(a), section 810.14(1) does not require that the
defendant’s observation of the other person be conducted “without that
person’s knowledge and consent.” § 810.145(2)(a), Fla. Stat. (2010). In
support of this argument, the defendant provides examples of non-
criminal behavior which he contends section 810.14(1) transforms into
criminal behavior: reality television show contestants living in a home
continually observed by cameras; and exhibitionists agreeing to a voyeur
observing them in their home.

   We conclude the defendant lacks standing to raise this argument and,
in any event, his argument and examples fail on their merits.

   The defendant lacks standing to raise this argument for two reasons.
First, an argument centered upon whether a defendant observes another
person “without that person’s knowledge or consent” does not implicate
First Amendment protected activities, and “[t]he overbreadth doctrine
applies only if the legislation is susceptible of application to conduct
protected by the First Amendment.” Se. Fisheries Ass’n, 453 So. 2d at
1353 (citation and internal quotation marks omitted); see also Wells, 402
So. 2d at 405.

   Second, the record plainly indicates that the defendant’s observation of
the victims in these two cases was conducted “without [their] knowledge
and consent.” As such, the defendant lacks standing to challenge the
hypothetical situation where a defendant is charged with voyeurism for
observing another person with their knowledge and consent. Cf. Pallas,
636 So. 2d at 1363-64.

    The defendant’s argument also fails on the merits. Section 810.14(1)
requires that the voyeur “secretly” observe another person and that the
person being observed is located where there is a “reasonable expectation
of privacy.” § 810.14(1), Fla. Stat. (2011). These qualifying words exclude
the defendant’s hypothetical situation where a defendant is charged with
voyeurism for observing another person with their knowledge and consent.
If a person knows and consents to being observed in a location, such
observation is not being done “secretly” and the person being observed has
no “reasonable expectation of privacy” in that location.

   The defendant’s examples similarly do not hold water. Reality television
show contestants living in a home continually observed by cameras, and
exhibitionists agreeing to a voyeur observing them in their home, are not
being observed “secretly,” and have no “reasonable expectation of privacy”

                                    9
in the location in which they are being observed, because they know of and
have consented to such observations.

                              Sentencing Error

    The defendant also argues that the circuit court erred in denying his
motion to correct sentencing error where the orders of community control
and probation contained the handwritten notation “sex offender conditions
apply” which the court did not orally pronounce at sentencing. Our review
of this argument is de novo. See Smith v. State, 143 So. 3d 1023, 1024
(Fla. 4th DCA 2014) (“Because a motion to correct a sentencing error
involves a pure issue of law, our standard of review is de novo.”) (citation
and quotation marks omitted).

   We agree with this argument. The defendant was not convicted of any
of the sex offenses specified in section 948.30, Florida Statutes (2013),
which imposes standard general conditions of probation or community
control for those specified sex offenses.3 Therefore, any conditions which
the court imposed on the defendant’s community control and probation
terms became “special conditions” which had to be orally pronounced
before they could be placed in the orders of community control and
probation. Our supreme court explained this requirement in Lawson v.
State, 969 So. 2d 222 (Fla. 2007):

      This Court has distinguished between special conditions and
      general conditions on the issue of how much due process is
      owed to a probationer.        General conditions, which are
      contained within the Florida Statutes, must be included
      within the order but need not be orally pronounced at the
      sentencing hearing. Special conditions, which are those not
      specifically authorized by statute, must be orally pronounced
      at sentencing before they can be placed in the probation order.
      The reason for the distinction relates to due process, such that
      a probationer is imputed with notice as to those conditions
      that are based upon statute but not as to those conditions
      that were uniquely drafted for purposes of his or her
      probation. Thus, in order to satisfy due process and provide
      a probationer with adequate notice, the trial court must orally
      pronounce any special condition at sentencing.

Id. at 227 n.3 (internal citations omitted).

3  We leave it to the Legislature to determine if it should add voyeurism and
video voyeurism to the sex offenses specified in section 948.30.

                                     10
    Here, at sentencing, the court did not orally pronounce that “sex
offender conditions apply” to the defendant’s community control and
probation terms. Instead, the court orally pronounced which special
conditions it was imposing upon those terms, and only those orally
pronounced special conditions could have been placed in the orders of
community control and probation. Thus, the court erred in denying the
defendant’s motion to correct sentencing error, which sought to strike from
the orders of community control and probation the handwritten notation
“sex offender conditions apply” which the court did not orally pronounce
at sentencing. See Justice v. State, 674 So. 2d 123, 126 (Fla. 1996)
(“[W]here a sentence is reversed because the trial court failed to orally
pronounce certain special conditions of probation which later appeared in
the written sentence, the court must strike the unannounced conditions
and cannot reimpose them upon resentencing.”).

   The state argues that the handwritten notation “sex offender conditions
apply” simply meant the special conditions which the judge orally
pronounced at sentencing, and did not mean other conditions which the
court did not orally pronounce. The state also argues that, if any
ambiguity exists between the sentencing orders and the pronouncement
in open court, then we should remand the case for “clarification of the
ambiguity between the sentencing order and the pronouncement in open
court.” Russ v. State, 519 So. 2d 715, 716 (Fla. 1st DCA 1988) (citation
omitted).

    We disagree with the state’s interpretation of the handwritten notation
“sex offender conditions apply” and see no ambiguity between the
sentencing orders and the pronouncement in open court. The court was
unambiguous in its oral pronouncement as to the special conditions which
it imposed at sentencing, and did not mention any of the other possible
conditions identified in section 948.30, such as a prohibition on viewing,
accessing, owning, or possessing any obscene, pornographic, or sexually
stimulating visual or auditory material. See generally § 948.30, Fla. Stat.
(2013). Thus, only those special conditions which the court orally
pronounced could have been placed in the orders of community control
and probation, and those orders must be corrected to reflect the oral
pronouncement. See Moreland v. State, 853 So. 2d 574, 575 (Fla. 4th DCA
2003 (“Where there is no ambiguity in the trial court’s oral
pronouncement, the sentencing order must be corrected to reflect the oral
pronouncement.”).

                                Conclusion


                                    11
   The voyeurism and video voyeurism statutes plainly are “primarily
meant to regulate conduct and not merely pure speech.” J.L.S., 947 So.
2d at 644-45 (citation omitted). To paraphrase our sister court when
analyzing a different statute, there has been no demonstration in this
record that sections 810.145 or 810.14 would prohibit a substantial
amount of protected speech in relation to their otherwise legitimate
applications. Id. at 645-46 (citations omitted). Thus, because any
applications of sections 810.145 and 810.14 which violate the First
Amendment can be remedied through as-applied litigation, we decline to
use the “strong medicine” of overbreadth to invalidate these statutes. Id.
at 646.

    Based on the foregoing, we affirm the defendant’s convictions. We also
conclude without further discussion that the defendant’s other arguments
for reversal of his convictions and sentences lack merit. We reverse only
the denial of the defendant’s motion to correct sentencing error for the
reasons stated above, and remand with directions to the court to strike
from the orders of community control and probation the handwritten
notation “sex offender conditions apply” which the court did not orally
pronounce at sentencing.

   Affirmed in part, reversed in part, and remanded only for correction of
sentences.

WARNER and MAY, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




                                   12
