County Criminal Court:  COUNTY ORDINANCE – Adult Entertainment - CRIMINAL LAW – Sentencing – Pinellas County Code, Section 42-144(a)(3) and Section 6-2(c)(3) were not unconstitutionally vague – term “cleavage of the nates of the human buttocks” is sufficiently clear – trial court did not err in denying motion for judgment of acquittal – state presented sufficient evidence to sustain motion - trial court did err by imposing adjudication of guilty, apparently for the sole reason that defendant exercised her right to go to trial -- Order affirmed, in part, and reversed, in part.  McComish v. State, No. 03-00020 APANO (Fla. 6th Cir. App. Ct. July 9, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

MICHELLE MCCOMISH,

                        Appellant,

vs.                                                                                            Appeal No. CRC 03-00020 APANO

                                                                                                 UCN522003AP000020XXXXCR

STATE OF FLORIDA,

                        Appellee.

____________________________________/

 

Opinion filed ________________________

 

Appeal from Judgment and Sentence

Pinellas County Court

Judge Sonny Im

 

Luke Lirot, Esquire

Attorney for Appellant

 

Carl E. Brody, Jr., Esquire

Attorney for Appellee

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Michelle McComish (McComish), from the Judgment and Sentence, entered February 14, 2003, in which the trial court found McComish guilty, without a jury, of Simulated Sexual Activity in violation of the Pinellas County Code.  Upon review of the briefs, the record, and being otherwise fully advised, the Court affirms the Order as set forth below.

            The record shows that McComish was charged, on April 19, 2002, with Simulated Sexual Activity in violation of the Pinellas County Code, Section 42-144(a)(3) and Section 6-2(c)(3), which prohibits specified sexual activity at an adult use establishment that serves alcohol.  At the time of her arrest, McComish was an exotic dancer at Atlantis, a fully licensed adult entertainment establishment.  As set forth in the arrest affidavit, McComish allegedly “did grind the exposed cleavage of her buttox [sic] against the groin of a patron.”    McComish pled not guilty.  After a non-jury trial, the trial court found McComish guilty of the charges and imposed fines and court costs.

            On appeal, McComish raises three issues:  (1) the trial court erred by not granting McComish’s Motion for Judgment of Acquittal; (2) the trial court erred by not finding the operative code sections unconstitutionally vague; and, (3) the trial court erred by penalizing McComish for exercising her constitutional right to a trial.  In addressing the first two issues, the Court finds that it has recently ruled in Lori Alvarez, et. al. v. State, No. 01-19119 CFANO (Fla. 6th Cir. App. Ct. May 14, 2004), albeit in a footnote, that “[t]he term ‘cleavage of the nates of the human buttocks’ is sufficiently clear from a reading of the ordinance so that a person of average intelligence can understand its meaning.”  Accordingly, the Court finds that the trial court did not err by not finding the operative code sections unconstitutionally vague.  See also State v. Delgrasso, 653 So.2d 459, 462 (Fla. 2d DCA 1995)(stating that statutes are presumed constitutional and, when reasonably possible and consistent with constitutional rights, all doubts should be resolved in favor of the validity of the act). 

            As McComish premised her first issue on the underlying constitutionality of the code, i.e. that the State failed to prove that there is any specific definition of which McComish was convicted, that argument must also fail.  Indeed, the testimony of the arresting officer, Detective Tad Camp, precluded the trial court from granting a judgment of acquittal.  See e.g. Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001)(providing that the appellate court must consider the evidence in a light most favorable to the state in reviewing an order denying a motion for judgment of acquittal). 

            In addressing the third issue, the Court finds that the trial court erred by imposing an adjudication of guilt, apparently for the sole reason that McComish exercised her right to go to trial.  See e.g. Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002).  After defense counsel requested the trial court to withhold adjudication of guilt on both counts, given that McComish had no prior record and also had “a pristine academic record,” the sole reason given by the trial court for refusing to withhold adjudication was “[n]ot after trial.”  Although the trial court may have had a variety of reasons to adjudicate McComish guilty, only one reason was announced.  Accordingly, the Court finds that this matter should be remanded to the trial court for McComish to be re-sentenced by a different trial judge.

            It is therefore, 

            ORDERED AND ADJUDGED that the Judgment and Sentence is affirmed, in part, and reversed, in part, as set forth above.  This cause is remanded to the trial court for McComish to be re-sentenced by a different trial judge.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of July 2004.

 

                                                                        ___________________________________

                                                                        JOHN A. SCHAEFER

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        IRENE SULLIVAN

                                                                        Circuit Judge

 

 

 

                                                                        ___________________________________

                                                                        DAVID A. DEMERS

                                                                        Circuit Judge

Copies furnish to:

 

Judge Sonny Im

 

Carl E. Brody, Jr., Esquire

315 Court Street

Clearwater, FL  33756

 

Luke Lirot, Esquire

112 East Street, Suite B

Tampa, FL  33602