       Third District Court of Appeal
                                State of Florida

                            Opinion filed April 3, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D17-464
                         Lower Tribunal No. 09-23824I
                             ________________


                               Alejandro Diaz,
                                      Appellant,

                                         vs.

                            The State of Florida,
                                      Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Dava J. Tunis,
Judge.

     Daniel Tibbitt, for appellant.

      Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee.


Before FERNANDEZ, LOGUE, and SCALES, JJ.

     LOGUE, J.
      Defendant Alejandro Diaz appeals the trial court’s entry of an order

revoking his probation and sentencing him to 25.25 years’ imprisonment on his

underlying crimes. His probation was revoked because, while serving his initial

sentence, he was found in possession of a cigarette made from a synthetic

cannabinoid, AB-Chimanaca. After careful review of Mr. Diaz’s arguments, we

affirm.

                               I.   BACKGROUND

          In 2013, Mr. Diaz pled guilty to attempted premeditated murder with a

firearm, conspiracy to commit first degree murder, discharging a firearm from a

vehicle, directing activity of a criminal gang, and racketeering. He was sentenced

to 10 years’ imprisonment followed by 10 years’ probation. He was read and

signed an order of supervision that cautioned a “violation of any of the conditions”

or failure to “live without violating the law” could result in revocation of

probation.

      On January 27, 2015, a corrections officer at the Miami-Dade County jail

found Mr. Diaz in possession of a cigarette made from the synthetic cannabinoid.

Mr. Diaz was charged with violating section 951.22(1) of Florida Statutes, which

prohibits the smuggling or possession in a county detention facility of various legal

and illegal items including clothing, food, alcohol or “any drug or drug of any kind

or nature . . . and controlled substances as defined in s. 893.02(4).”



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      During his probation violation hearing, Mr. Diaz testified he obtained the

synthetic cannabinoid from another inmate. He admitted that he knew possession

was forbidden in jail and explained he smoked the substance to self-medicate. The

trial court found Mr. Diaz willfully and knowingly violated his probation. It then

re-sentenced Mr. Diaz to 25.25 years’ imprisonment to be followed by 10 years’

probation. Mr. Diaz timely appealed.

                                II.    ANALYSIS

      Mr. Diaz raises three issues on appeal. First, Mr. Diaz claims that the

particular synthetic cannabinoid which he possessed was not a controlled substance

under section 893.02(4) at the time he possessed it and therefore his possession did

not violate section 951.22(1). We recognize that this particular synthetic

cannabinoid was not added to the list of controlled substances in section 893.02(4)

until several months after it was found in his possession. But, while section

951.22(1) prohibits possession of controlled substances as defined in s. 893.02(4),

its prohibition is not limited to only controlled or illegal substances. The statute is

designed to prevent the smuggling and surreptitious possession of various legal

and illegal contraband by inmates including money, food, clothing, tobacco,

alcohol, and, pertinent to this case, “any narcotic, hypnotic, or excitative drug or

drug of any kind or nature, including nasal inhalators, sleeping pills, barbiturates,

and controlled substances as defined in section 893.02(4).”



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      In full, section 951.22(1) provides:

             It is unlawful, except through regular channels as duly
             authorized by the sheriff or officer in charge, to introduce
             into or possess upon the grounds of any county detention
             facility as defined in s. 951.23 or to give to or receive
             from any inmate of any such facility wherever said
             inmate is located at the time or to take or to attempt to
             take or send therefrom any of the following articles
             which are hereby declared to be contraband for the
             purposes of this act, to wit: Any written or recorded
             communication; any currency or coin; any article of food
             or clothing; any tobacco products as defined in s.
             210.25(12); any cigarette as defined in s. 210.01(1); any
             cigar; any intoxicating beverage or beverage which
             causes or may cause an intoxicating effect; any narcotic,
             hypnotic, or excitative drug or drug of any kind or nature,
             including nasal inhalators, sleeping pills, barbiturates,
             and controlled substances as defined in s. 893.02(4); any
             firearm or any instrumentality customarily used or which
             is intended to be used as a dangerous weapon; and any
             instrumentality of any nature that may be or is intended
             to be used as an aid in effecting or attempting to effect an
             escape from a county facility.

§ 951.22(1), Fla. Stat. (emphases added). Mr. Diaz admitted he smoked the

synthetic cannabinoid at issue to self-medicate. It was therefore a “drug of any

kind or nature,” whether or not it was illegal.

      Next, Mr. Diaz claims that if section 951.22(1)’s prohibition on contraband

in detention facilities is construed to include AB-Chimanaca, then the statute is

unconstitutionally vague. “To withstand a vagueness challenge, a statute must be

specific enough to give persons of common intelligence and understanding

adequate warning of the proscribed conduct.” State v. Mitro, 700 So. 2d 643, 645


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(Fla. 1997) (citing Trushin v. State, 425 So. 2d 1126, 1130 (Fla.1983). Under this

standard, section 951.22 is not vague.

      As we mentioned before, its purpose is to control smuggling and

surreptitious possession of various items, legal and illegal. Considered in this light,

it is plain to a person of “common intelligence” that this statute prohibits the

smuggling or possession of a “drug of any kind or nature,” which includes the

synthetic cannabinoid at issue here, whether it is a controlled substance or not, just

like the statute prohibits the smuggling or possession of food, tobacco, and alcohol.

Indeed, Mr. Diaz admitted he knew the synthetic cannabinoid in his possession

was contraband. See Hughes v. State, 943 So. 2d 176, 189 (Fla. 3d DCA 2006)

(rejecting a vagueness claim and noting “[t]he plain and ordinary meaning of a

word can be ascertained by reference to a dictionary.”); accord State v. Hagan, 387

So. 2d 943, 945 (Fla. 1980) (noting that the “legislature’s failure to define a

statutory term does not in and of itself render a penal provision unconstitutionally

vague”).

      Finally, Mr. Diaz argues that he could not commit a willful and substantial

violation before his probationary period began. This argument has previously been

considered and rejected by the Florida Supreme Court and other courts. See

Stafford v. State, 455 So. 2d 385, 386-87 (Fla. 1984) (concluding that probation

could be revoked for a violation occurring during a period of parole even though



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the term of probation had not yet begun.); Martin v. State, 243 So. 2d 189, 191

(Fla. 4th DCA 1971) (“[T]he court can revoke an order of probation, the term of

which has not yet commenced, should the court determine that the defendant

probationer has been guilty of misconduct occurring subsequent to the entry of the

order of probation.”); see, e.g., Lawson v. State, 969 So. 2d 222, 235 (Fla. 2007)

(“Probation orders need not include every possible restriction so long as a

reasonable person is put on notice of what conduct will subject him or her to

revocation.”).

      Affirmed.




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