County Criminal Court: CRIMINAL PROCEDURE – Dismissal – Defendant’s act of entering an open but occupied booth in an adult use business, open to the general public, and exposing his penis and masturbating in front of the occupant, is a violation of §800.03, Fla.Stat. (2004)[exposure of sexual organs]. Judgment and sentence affirmed. State v. Cerovich, No. CRC 04-45 APANO, (Fla. 6th Cir.App.Ct. June 8, 2005).









Appeal No. CRC 04-45 APANO

UCN522004AP000045 XXXXCR








Opinion filed _________________.


Appeal from a decision of the

Pinellas County Court

County Judge Sonny Im


Alyssa Folse, Esq.

Assistant State Attorney


Thomas Tripp, Esq.

Attorney for appellee





            (J. Morris)


            THIS MATTER is before the Court on the State’s appeal of an order entered by the trial court dismissing the charge. After reviewing the briefs and record, this Court reverses the order of dismissal.

            The basic facts are as follows.1 The defendant entered an adult-use store that was open to the public. He walked, uninvited, into a booth that was occupied; closed and locked the door of the booth, exposed his penis, and began to masturbate in full view of the occupant --- who was unknown to the defendant. The other occupant in the booth turned out to be an undercover deputy, who arrested the defendant and charged him with violating §800.03 of the Florida Statutes --- exposure of sexual organs in a vulgar or indecent manner. The defendant argued in the lower court that the charge should be dismissed because the act was not in public and the element of “in a vulgar or indecent manner” could not be proved solely by the testimony of an undercover deputy. After initially denying the motion, upon rehearing, the trial court granted the defendant’s motion to dismiss the charge against him. The State is appealing that decision, arguing that the defendant’s behavior was a violation of §800.03, Fla.Stat. (2004).

The statute in question, §800.03, Fla.Stat. (2004), states in pertinent part:

            Exposure of sexual organs. --- It is unlawful to expose or exhibit

            one’s sexual organs in public or on the private premises of another,

            or so near thereto as to be seen from such private premises, in a vulgar

            or indecent manner, or to be naked in public except in any place

            provided or set apart for that purpose. Violation of this section is a

            misdemeanor of the first degree … .     


The standard of review in this case is de novo. See  State v. Pasko, 815 So.2d 680 (Fla. 2d DCA 2003). A motion to dismiss is well taken only if no material facts are in dispute and the most favorable construction of the undisputed facts in favor of the State do not establish a prima facie case of guilt. All inferences should be resolved in favor of the State. Id.

            The State claims that the defendant’s actions, if proved, establish a violation of the statute, and that it was error for the trial court to grant the defendant’s motion to dismiss. This Court agrees. Under the facts alleged, the State has made a prima facie case that the defendant violated §800.03, Fla. Stat. (2004).

The defendant’s argument that this behavior was not in public is not persuasive. As noted above, the establishment was open to the general public, and the door to the booth was open at the time the defendant entered. The fact that the defendant closed the door, essentially trapping the occupant, before engaging in the lewd and vulgar act, does not absolve the defendant.

            If it could be considered that this booth was somehow private, then the defendant would still be guilty of violating the statute because the booth would be considered the private premises of another. The booth was occupied by another individual before the defendant entered. That individual was unknown to the defendant, and the individual did not invite him into the booth. Restroom stalls and booths might be considered private for purposes of this statute, but they are private for the person using them at the time.  Those places are not “anything goes zones” where any one may enter and do what they like regardless of who is occupying them at the time. If a complete stranger enters the area, then that area is not to be considered private as far as the stranger is concerned. What expectation of privacy can strangers have when they knowingly enter an occupied area? The defendant appears to want it both ways. On the one hand he contends the booth is private, but on the other hand he argues that it was permissible for him to enter the booth because it was open to the public. Since the booth was occupied by another, it is either the private premises of another or it is public. Either way, the defendant violated the statute.

The defendant also contends that the charges should have been dismissed because the only person witnessing the behavior was a deputy. The defendant’s analogy to that line of cases involving  “lap dancers” in adult-use establishments, however, is misguided. Those cases involve a different statute and a completely different set of facts. In those situations the officers initiated or procured the conduct. In the case at bar, it was the defendant who initiated the conduct without any involvement from the undercover deputy.

The only case on point that is cited by the defendant is State v. Twine, 03-CM-18115 (Fla. 13th Cir.Ct. Feb. 26, 2004). That case, however, is not binding on this Court. Moreover, the case is premised on the line of “lap dancing” cases that this Court has found to be substantially different from the circumstances involved in the case at bar. This Court holds that behavior such as in the case at bar, if proved at trial, is sufficiently vulgar and lewd to uphold a conviction under §800.03. The fact that the other person, unbeknownst to the defendant, actually turned out to be a deputy does not excuse the defendant. The conduct involved in this case is no less a crime solely because the member of the public turned out to be a deputy who neither initiated nor procured the conduct. It was error for the trial judge to grant the defendant’s motion to dismiss.

            IT IS THEREFORE ORDERED that the Order Granting Motion for Re-Hearing and Motion to Dismiss is reversed, and this case is remanded to the trial court for action

consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers at Clearwater, Pinellas County, Florida this _____ day of June, 2005.



                                                                                                David A. Demers

                                                                                                Circuit Judge






                                                                                                Robert J. Morris, Jr.

                                                                                                Circuit Judge





                                                                                                Irene S. Sullivan

                                                                                                Circuit Judge

cc:   State Attorney


        Thomas Tripp, Esq.


        Judge Im


1 The defendant filed a motion to dismiss pursuant to Fla.R.Crim.P. 3.190 (c) (4). The State filed a demurrer, but failed to put any particular facts at issue. Other facts have come out in the briefs, but the parties do not appear to disagree on the basic material facts.