IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND
APPELLATE
DIVISION
MICHELLE
MCCOMISH,
Appellant,
vs.
Appeal No. CRC 03-00020 APANO
UCN522003AP000020XXXXCR
STATE OF
Appellee.
____________________________________/
Opinion
filed ________________________
Appeal
from Judgment and Sentence
Judge
Sonny Im
Luke
Lirot, Esquire
Attorney
for Appellant
Carl
E. Brody, Jr., Esquire
Attorney
for Appellee
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 (
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 (
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
___________________________________
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
Luke Lirot, Esquire