       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          GARY CZAJKOWSKI,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D13-3693

                           [November 4, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Stephen    A.    Rapp,     Judge;  L.T.    Case    No.
502011CF002731AXXXMB.

   Margaret Good-Earnest and Cherry Grant of Good-Earnest Law, P.A.,
Lake Worth, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions on fourteen counts of
unlawful compensation or reward for official behavior and one count of
conspiracy to commit unlawful compensation or reward for official
behavior. The defendant primarily argues that section 838.016(1), Florida
Statutes (2008), which codifies the crime of unlawful compensation or
reward for official behavior, was unconstitutional as applied to him. We
disagree with that argument and all other arguments which the defendant
raises. Thus, we affirm.

   This opinion will address only the constitutional issue. We will begin
by detailing the trial court proceedings on that issue. We then will turn to
our analysis of that issue with an examination of other statutory
provisions, case law, and the plain meaning of section 838.016(1) itself.
                          Trial Court Proceedings

  The state’s ultimate information alleged the counts for unlawful
compensation or reward for official behavior as follows, with various terms
substituted as shown:

      [The defendant] on or between [certain dates] . . . did corruptly
      give [item] to [name], a public servant, a pecuniary or other
      benefit not authorized by law, for the past, present, or future
      performance, nonperformance or violation of any act or
      omission within the official discretion of [name] in violation of
      a public duty, or in performance of a public duty, as [title of
      public servant], contrary to Florida Statute 838.016(1) (2 DEG
      FEL).

   Section 838.016(1), Florida Statutes (2008), provides, in pertinent part:

      It is unlawful for any person corruptly to give, offer, or
      promise to any public servant, or, if a public servant,
      corruptly to request, solicit, accept, or agree to accept,
      any pecuniary or other benefit not authorized by law,
      for the past, present, or future performance,
      nonperformance, or violation of any act or omission
      which the person believes to have been, or the public
      servant represents as having been, either within the
      official discretion of the public servant, in violation of a
      public duty, or in performance of a public duty. . . .

   The defendant’s motion to dismiss argued that section 838.016 was
unconstitutional as applied to his prosecution in violation of the due
process clauses of the Florida Constitution and the United States
Constitution. Specifically, the defendant argued that an essential element
of section 838.016(1) which the state must prove is that the benefit given
to a public servant is “not authorized by law.” However, as the defendant
noted, the phrase “not authorized by law” is not defined in section
838.016(1), the standard jury instructions, or case law. Thus, the
defendant argued, section 838.016(1) is unconstitutionally vague in two
respects: (1) it gives no notice of what conduct it forbids; and (2) it
encourages arbitrary arrests, prosecutions, and convictions.

   The state filed a response to the defendant’s motion. In the response,
the state argued that section 838.016, coupled with sections 112.313(2)
and 112.313(4), Florida Statutes (2008), provided adequate notice of


                                      2
proscribed conduct and provided law enforcement with sufficient guidance
to avoid arbitrary arrests and prosecutions. Section 112.313(2) provides:

      No public officer, employee of an agency, local government
      attorney, or candidate for nomination or election shall solicit
      or accept anything of value to the recipient, including a gift,
      loan, reward, promise of future employment, favor, or service,
      based upon any understanding that the vote, official action,
      or judgment of the public officer, employee, local government
      attorney, or candidate would be influenced thereby.

§ 112.313(2), Fla. Stat. (2008). Further, section 112.313(4) provides:

      No public officer, employee of an agency, or local government
      attorney or his or her spouse or minor child shall, at any time,
      accept any compensation, payment, or thing of value when
      such public officer, employee, or local government attorney
      knows, or, with the exercise of reasonable care, should know,
      that it was given to influence a vote or other action in which
      the officer, employee, or local government attorney was
      expected to participate in his or her official capacity.

§ 112.313(4), Fla. Stat. (2008).

   The trial court denied the defendant’s motion to dismiss.

   At trial, the state presented evidence that the defendant, through his
company and employees, provided gifts to municipal employees with whom
the defendant’s company was doing business. These gifts included an
$8,500 Breitling watch, various hotel accommodations, NASCAR race
tickets, a seven-night cruise, and gift cards valued at $100 and $500. The
defendant’s employees testified that the gift cards’ amount was based on
the amount of money which the defendant’s company was earning from the
municipality.     The defendant’s employees further testified that the
defendant instructed them to lie about the $8,500 watch. When one of the
employees refused to lie, the defendant became angry and fired that
employee. That employee also testified about a conversation he had with
the defendant after leaving the NASCAR race for which the defendant
provided tickets to a municipal employee:

      STATE:     And what did [the defendant] think having invited
      these people to a NASCAR race what they would be thinking?



                                     3
      WITNESS: . . . It was at the end of a race weekend, and [the
      defendant] said . . . that “you know after spending a nice
      weekend like that with their families and attending a nice race
      weekend . . . on their drive home they would be thinking about
      how nice it was, and they would remember that when they
      . . . give us their next PO,” or something like that.

      STATE:      What does “PO” mean?

      WITNESS: A purchase order.

      STATE:     And is that for work that’s to be done in the
      municipality?

      WITNESS: Yes, sir.

   At the charge conference, the parties brought to the court’s attention
that the standard jury instruction for section 838.016 referred to the
phrase “not authorized by law,” but did not define that phrase. See Fla.
Std. Jury Instr. (Crim.) 19.3.

   To address that issue, the state, consistent with its response to the
defendant’s motion to dismiss, initially requested a special jury instruction
based on sections 112.313(2) and 112.313(4). The state ultimately
requested a special jury instruction based on only section 112.313(4).
Applying section 112.313(4), the state’s proposed instruction defined the
phrase “not authorized by law” as follows:

      “Not authorized by law” means the following: No public officer
      or employee of a local government shall, at any time, accept
      any compensation, payment, or thing of value when such
      public officer or employee knows, or, with the exercise of
      reasonable care, should know, that it was given to influence a
      vote or other action in which the officer or employee was
      expected to participate in his or her official capacity.

   In response, the defendant stated that, without waiving his argument
that section 838.016’s use of the phrase “not authorized by law” was
unconstitutionally vague, he agreed with the state that the court should
instruct the jury on the element of “not authorized by law” pursuant to
section 112.313(4).




                                     4
    Based on the parties’ positions, the trial court instructed the jury on all
fifteen counts by using the definition of “not authorized by law” pursuant
to section 112.313(4) stated above.

   During the jury’s deliberations, the jury returned a note to the court
asking the following question: “Is there any addition [sic] information
regarding clarification of ‘not authorized by law’?” When the court asked
for a suggested response, the defendant replied: “Something along the
lines of ‘we’ve given you the instruction on the law.’” The state did not
suggest a response. The court later responded to the jury: “No, there
really isn’t [anything] that we can give you.”

    The jury returned guilty verdicts on all fifteen counts.      This appeal
followed.

                             Appellate Analysis

    The defendant primarily argues that the court erred in denying his
motion to dismiss the information on the ground that section 838.016(1)
is unconstitutional as applied to him because of the alleged vagueness of
its phrase “not authorized by law.”

   Based on this argument, we must affirm. Our supreme court already
has rejected a vagueness challenge to section 838.016(1). See Hoberman
v. State, 400 So. 2d 758, 758 (Fla. 1981) (“[A]ppellant was convicted of
bribery and unlawful compensation for official behavior pursuant to
sections 838.015(1) and 838.016(1), Florida Statutes (1977). . . .
Appellant’s vagueness challenge fails because sections 838.015(1) and
838.016(1) convey a sufficiently definite warning as to the proscribed
conduct . . . . ”) (citations omitted). Although Hoberman does not detail
the supreme court’s reasoning for its decision, we remain bound by its
decision.

    On the possibility that we are not bound by Hoberman due to its lack
of detailed reasoning, we have conducted a de novo review of the trial
court’s ruling. See Henry v. State, 134 So. 3d 938, 944-45 (Fla. 2014) (the
determination of a statute’s constitutionality and a trial court’s ruling on
a motion to dismiss are both legal questions subject to de novo review)
(citations omitted). Our de novo review has been guided by our supreme
court’s useful direction in State v. Brake, 796 So. 2d 522 (Fla. 2001):

         The rules of statutory construction require a court to
      resolve all doubts of a statute in favor of its validity, when
      reasonably possible and consistent with constitutional rights.

                                      5
However, any doubt as to a statute’s validity that is raised in
a vagueness challenge should be resolved in favor of the
citizen and against the state.

   In order for a criminal statute to withstand a void-for-
vagueness challenge, the language of the statute must provide
adequate notice of the conduct it prohibits when measured by
common understanding and practice. The language of a
statute must provide a definite warning of what conduct is
required or prohibited, measured by common understanding
and practice.

  As this Court explained in [State v.] Wershow, [343 So. 2d
605 (Fla. 1977)],

         The requirements of due process of Article I,
      Section 9, Florida Constitution, and the Fifth and
      Fourteenth Amendments to the Constitution of
      the United States are not fulfilled unless the
      Legislature, in the promulgation of a penal
      statute, uses language sufficiently definite to
      apprise those to whom it applies what conduct on
      their part is prohibited. It is constitutionally
      impermissible for the Legislature to use such
      vague and broad language that a person of
      common intelligence must speculate about its
      meaning and be subjected to arrest and
      punishment if the guess is wrong.

343 So. 2d at 608.

   Additionally, the statute must define the offense in a
manner that does not encourage arbitrary and discriminatory
enforcement. A statute may be worded so loosely that it leads
to arbitrary and selective enforcement by vesting undue
discretion as to its scope in those who prosecute.

   However, the legislature’s failure to define a statutory term
does not in and of itself render a penal provision
unconstitutionally vague. In the absence of a statutory
definition, it is permissible to look to case law or related
statutory provisions that define the term. Further, where a
statute does not specifically define words of common usage,
such words are construed in their plain and ordinary sense.

                               6
         In other cases where the exact meaning of a term was not
      defined in a statute itself, we have ascertained its meaning by
      reference to other statutory provisions, case law, or the plain
      and ordinary meaning of a word of common usage.

796 So. 2d at 527-28 (other citations and quotation marks omitted).

   Applying our supreme court’s guidance here, we conclude that
although section 838.016(1)’s use of the phrase “not authorized by law” is
not defined in the statute itself, its meaning can be ascertained by
reference to other statutory provisions, case law, and the plain and
ordinary meaning of its words of common usage. We address each below.

                       1. Other Statutory Provisions

   Two statutory provisions may be used to define what constitutes a
benefit “not authorized by law,” as that phrase is used in section
838.016(1).

   First, section 112.313(2), Florida Statutes (2008), provides:

      No public officer, employee of an agency, local government
      attorney, or candidate for nomination or election shall solicit
      or accept anything of value to the recipient, including a gift,
      loan, reward, promise of future employment, favor, or service,
      based upon any understanding that the vote, official action, or
      judgment of the public officer, employee, local government
      attorney, or candidate would be influenced thereby.

§ 112.313(2), Fla. Stat. (2008) (emphasis added).

   Second, section 112.313(4), Florida Statutes (2008), provides:

      No public officer, employee of an agency, or local government
      attorney or his or her spouse or minor child shall, at any time,
      accept any compensation, payment, or thing of value when
      such public officer, employee, or local government attorney
      knows, or, with the exercise of reasonable care, should know,
      that it was given to influence a vote or other action in which the
      officer, employee, or local government attorney was expected to
      participate in his or her official capacity.

§ 112.313(4), Fla. Stat. (2008) (emphasis added).

                                      7
    The common theme running between sections 112.313(2) and
112.313(4) is that a public officer or employee shall not accept anything of
value given to influence the public officer’s or employee’s vote or other
official action. Any such thing is a benefit “not authorized by law.”

                               2. Case Law

   Two cases are useful in defining the plain meaning of what constitutes
a benefit “not authorized by law,” as that phrase is used in section
838.016(1) – State v. Brake, 796 So. 2d 522 (Fla. 2001), and State v.
Rodriquez, 365 So. 2d 157 (Fla. 1978). We address each in turn.

                             a. State v. Brake

   In Brake, our supreme court examined a vagueness challenge to the
phrase “for other than a lawful purpose,” as that phrase was used in
section 787.025(2)(a), Florida Statutes (1997):

      A person over the age of 18 who, having been previously
      convicted of a violation of chapter 794 or s. 800.04, or a
      violation of a similar law of another jurisdiction, intentionally
      lures or entices, or attempts to lure or entice, a child under
      the age of 12 into a structure, dwelling, or conveyance for other
      than a lawful purpose commits a felony of the third degree
      ....

(emphasis added).

   The supreme court rejected the vagueness challenge.            The court
reasoned:

      [W]e conclude that the term “for other than a lawful purpose”
      can be defined in a manner that . . . resolves any vagueness
      doubts . . . . [W]e conclude that the dictionary definition of
      “lawful,” i.e., “being in harmony with the law,” helps to
      illuminate the statutory term. . . . Under this interpretation,
      the statute provides adequate notice of the conduct it
      prohibits[.]

796 So. 2d at 528-29 (internal citation omitted).

   Applying the supreme court’s reasoning from Brake here, we conclude
that the phrase “not authorized by law” also can be defined in a manner

                                     8
that resolves any vagueness doubts.          The Merriam-Webster Online
Dictionary defines “authorize” as “to give legal or official approval to or for
(something).” See www.merriam-webster.com/dictionary/authorized (last
checked October 12, 2015). Substituting that definition for the phrase
“not authorized by law” within section 838.016(1) results in the following:

      It is unlawful for any person corruptly to give, offer, or promise
      to any public servant, or, if a public servant, corruptly to
      request, solicit, accept, or agree to accept, any pecuniary or
      other benefit not given legal or official approval, for the past,
      present, or future performance, nonperformance, or violation
      of any act or omission which the person believes to have been,
      or the public servant represents as having been, either within
      the official discretion of the public servant, in violation of a
      public duty, or in performance of a public duty. . . .

    Analogous to the supreme court’s conclusion in Brake, we conclude
that the dictionary definition of “authorize” illuminates our understanding
of the facts here. When combined with the common theme running
between sections 112.313(2) and 112.313(4) – that a public officer or
employee shall not accept anything of value given to influence the public
officer’s or employee’s vote or other official action – a person of common
intelligence would understand that providing gifts to influence the public
officer’s or employee’s vote or other official action also does not have “legal
or official approval,” in other words, is “not authorized by law.”

                            b. State v. Rodriquez

  In Rodriquez, the supreme court examined a vagueness challenge to the
phrase “not authorized by law,” as that phrase was used in section
409.325(2)(a), Florida Statutes (Supp. 1976):

      Any person who knowingly: (a) (u)ses, transfers, acquires,
      traffics, alters, forges, or possesses . . . a food stamp . . . In
      any manner not authorized by law is guilty of a crime . . . .

(emphasis added).

   The supreme court rejected the vagueness challenge.             The court
reasoned:

      Implicit in Section 409.325(2)(a), when read in conjunction
      with the other sections of Chapter 409, is the fact that the


                                      9
      words “in any manner not authorized by law” refer to state
      and federal food stamp law.

      ....

      [Thus,] Section 409.325(2)(a) is sufficiently definite to inform
      the defendants that their conduct in selling non-food items for
      food stamps was proscribed.

365 So. 2d at 159-60.

   In reaching its decision in Rodriquez, the supreme court rejected the
defendants’ reliance on the court’s earlier decision in Locklin v. Pridgeon,
30 So. 2d 102 (Fla. 1947). In Locklin, the supreme court examined a
vagueness challenge to the phrase “not authorized by law,” as that phrase
was used in Chapter 22761, Acts of 1945, Laws of Florida:

      Section 1. That it shall be unlawful for any person to commit
      any act under color of authority as an officer, agent or
      employee of the United States government, State of Florida, or
      any political subdivision thereof when such act is not
      authorized by law . . . .

(emphasis added). The Locklin court determined:

      Under the provisions of this Act an officer or employee is just
      as amenable to prosecution for an act done in good faith, when
      that act is not specifically authorized by law, as he would be
      for the commission of an act done with evil intent and wilfully
      done in violation of law. . . .

30 So. 2d at 103.

However, the Rodriquez court found Locklin was distinguishable:

      Locklin is distinguishable from the case now before us in that
      the statute involved in Locklin was broader than Section
      409.325(2)(a) because it prohibited a person from committing
      “any act under color or authority as an officer . . . when such
      act is not authorized by law.” In the present food stamp cases,
      however, because of the peculiar nature of the food stamp
      program, because it is a federal program, and because
      Chapter 409 gives notice that it is a federal program with
      federal regulations, we conclude that the Legislature, by the

                                    10
      use of the language “not authorized by law,” means not
      authorized by state and federal food stamp law.

365 So. 2d at 159.

    Applying the supreme court’s reasoning from Rodriquez here, we
conclude that implicit in section 838.016(1) is the fact that the phrase “not
authorized by law” refers to state ethics law, section 112.311 et seq.,
Florida Statutes (2008). Thus, section 838.016(1) was sufficiently definite
to inform the defendant that his conduct in providing gifts to influence
public employees’ official action – which in turn, caused them to violate
sections 112.313(2) and 112.313(4) by accepting things of value given to
influence their official action – was “not authorized by law.”

                             3. Plain Meaning

   In addition to our plain meaning analysis analogous to Brake, we
observe that section 838.016(1)’s use of the phrase “not authorized by law”
is not novel. When the legislature enacted section 838.016(1) in 1974, it
included the phrase “not authorized by law.” See Ch. 74-383, § 60, at
1253, Laws of Fla. The previous unlawful compensation statute, enacted
in 1905, included similar words: “other than those provided by law.” Ch.
5416, Laws of Fla. (1905). The fact that the phrase “not authorized by law”
and its similar predecessor have existed without challenge for more than
a century implicitly suggests that the phrase carries a “plain and ordinary
meaning of [words] of common usage.” Brake, 796 So. 2d at 528.
Moreover, the legislature’s continued use of the phrase “not authorized by
law” in other anti-corruption statutes suggests the legislature maintains
confidence in the phrase’s plain meaning. See State v. Flansbaum-
Talabisco, 121 So. 3d 568, 576-77 (Fla. 4th DCA 2013) (“[T]he crime of
unlawful compensation has always included the words, ‘not authorized by
law,’ now found in the bribery statute. It appears possible that in 2003,
when Florida’s anti-corruption statutes were being overhauled and
consolidated, the Legislature merely added the ‘not authorized by law’
language to the bribery statute in an effort to create uniformity between
the unlawful compensation and bribery statutes.”).

                                Conclusion

   Based on the foregoing, we affirm the trial court’s denial of the
defendant’s motion to dismiss. We also affirm without further comment
the defendant’s convictions on all other arguments raised in this appeal.



                                     11
   To resolve the issue raised in this appeal for future criminal trials, we
suggest that the Supreme Court Committee on Standard Jury Instructions
in Criminal Cases consider updating standard jury instruction 19.3 to
define the phrase “not authorized by law” using the optional definitions
which sections 112.313(2) and 112.313(4) provide.

   Affirmed.

DAMOORGIAN and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                    12
