Supreme Court of Florida
____________
No. SC17-200
____________
DANTE MARTIN,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
December 13, 2018
CANADY, C.J.
For conduct committed in connection with the activities of the Florida A&M
University’s marching band, the Marching 100, Dante Martin was convicted of
manslaughter, felony hazing resulting in death, and two counts of misdemeanor
hazing. On appeal, the Fifth District Court of Appeal affirmed his convictions and
sentences and rejected overbreadth and void-for-vagueness arguments Martin
presented challenging the constitutionality of section 1006.63, Florida Statutes
(2012), Florida’s hazing statute. Martin sought review under article V, section
3(b)(3) of the Florida Constitution, based on the Fifth District’s express declaration
that the hazing statute is valid.
We granted jurisdiction, and we now consider Martin’s various challenges to
the constitutionality of the statute. Our analysis leads us to agree with the Fifth
District’s conclusion that Martin has presented no basis for declaring the hazing
statute unconstitutional. We therefore approve the decision on review.
In explaining our decision, we begin with a review of the text of the hazing
statute. We then briefly recount the facts regarding the episode involving the
Marching 100 that was the basis for Martin’s convictions. Next, we summarize the
ruling of the district court rejecting Martin’s arguments that the hazing statute is
constitutionally invalid. Finally, we discuss the application of the relevant case
law to Martin’s overbreadth and void-for-vagueness claims regarding the hazing
statute.
I.
The hazing statute, section 1006.63, contains both criminal and regulatory
provisions. Subsection (1) provides a definition of hazing—including language
specifically excluding from its coverage certain conduct—that is applicable to both
the criminal and regulatory provisions. The specific criminal provisions are set
forth in subsections (2)-(6), and the regulatory provisions are found in subsections
(7)-(10). This case, of course, raises questions related to the criminal provisions.
Of particular relevance here are the definition of hazing in subsection (1); the
provisions of subsection (2) establishing the offense of third-degree felony hazing;
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the provisions of subsection (3) establishing the offense of first-degree
misdemeanor hazing; and the provision of subsection (5) providing that certain
enumerated circumstances are not defenses to a charge of hazing.
The definition of hazing is, of course, critically important to determining the
scope of criminal liability under the statute. An act is not punishable as a crime
under the statute unless it falls within the ambit of that definition. But an act may
come within the definition of hazing and still not be a criminal offense. The
provisions establishing felony hazing and misdemeanor hazing both contain
additional elements that go beyond the definition of hazing. An examination of
those elements readily reveals that they substantially narrow the scope of criminal
liability under the hazing statute.
(1) As used in this section, “hazing” means any action or
situation that recklessly or intentionally endangers the mental or
physical health or safety of a student for purposes including, but not
limited to, initiation or admission into or affiliation with any
organization operating under the sanction of a postsecondary
institution. “Hazing” includes, but is not limited to, pressuring or
coercing the student into violating state or federal law, any brutality of
a physical nature, such as whipping, beating, branding, exposure to
the elements, forced consumption of any food, liquor, drug, or other
substance, or other forced physical activity that could adversely affect
the physical health or safety of the student, and also includes any
activity that would subject the student to extreme mental stress, such
as sleep deprivation, forced exclusion from social contact, forced
conduct that could result in extreme embarrassment, or other forced
activity that could adversely affect the mental health or dignity of the
student. Hazing does not include customary athletic events or other
similar contests or competitions or any activity or conduct that
furthers a legal and legitimate objective.
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§ 1006.63(1), Fla. Stat. (emphasis added).
The offense of felony hazing is established in subsection (2):
A person commits hazing, a third degree felony, punishable as
provided in s. 775.082 or s. 775.083, when he or she intentionally or
recklessly commits any act of hazing as defined in subsection (1) upon
another person who is a member of or an applicant to any type of
student organization and the hazing results in serious bodily injury or
death of such other person.
§ 1006.63(2), Fla. Stat. (emphasis added).
Subsection (3) creates the offense of misdemeanor hazing:
A person commits hazing, a first degree misdemeanor, punishable as
provided in s. 775.082 or s. 775.083, when he or she intentionally or
recklessly commits any act of hazing as defined in subsection (1) upon
another person who is a member of or an applicant to any type of
student organization and the hazing creates a substantial risk of
physical injury or death to such other person.
§ 1006.63(3), Fla. Stat. (emphasis added).
Subsection (5) contains a provision that negates certain potential defenses to
a hazing charge:
It is not a defense to a charge of hazing that:
(a) The consent of the victim had been obtained;
(b) The conduct or activity that resulted in the death or injury of
a person was not part of an official organizational event or was not
otherwise sanctioned or approved by the organization; or
(c) The conduct or activity that resulted in death or injury of the
person was not done as a condition of membership to an organization.
§ 1006.63(5), Fla. Stat. (emphasis added).
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As pertinent here, the definition of hazing extends to an “action or situation
that recklessly or intentionally endangers the mental or physical health or safety of
a student.” § 1006.63(1), Fla. Stat. A significant strand in the definition of hazing
expressly extends its coverage to “any brutality of a physical nature, such as
whipping” or “beating.” Id. “[C]ustomary athletic events or other similar contests
or competitions” are expressly excluded from the definition of “hazing.” Id.
The offenses of felony hazing and misdemeanor hazing both require that the
offender “intentionally or recklessly commits an[] act of hazing.” § 1006.63(2)-
(3), Fla. Stat. And the two offenses both contain an additional element related to
the consequence of the act of hazing. The felony offense requires that “the hazing
results in serious bodily injury or death” of the victim. § 1006.63(2), Fla. Stat. For
the misdemeanor offense to be established, the act of hazing must “create[] a
substantial risk of physical injury or death” to the victim. § 1006.63(3), Fla. Stat.
Under subsection (5), the consensual participation of the victim in the event
or situation that constitutes hazing is not a defense. § 1006.63(5)(a), Fla. Stat.
Likewise, it is no defense that the hazing was not officially sanctioned or that it
“was not done as a condition of membership.” § 1006.63(5)(b)-(c), Fla. Stat.
II.
On appeal from the judgment and sentences, the Fifth District set out the
facts of the crimes:
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[Martin] was a member of the percussion section of the Florida
A & M University’s marching band, the “Marching 100.” Members
of the percussion section are entitled to ride to away events in a motor
coach known as “Bus C.” [Martin] was president of Bus C.
A tradition or ritual known as “Crossing Bus C” has existed at
the University for some time. The ritual consists of three components:
1) the hot seat, 2) the prepping, and 3) the crossing. During the hot
seat, the participant takes a seat on Bus C (near the front) and is struck
or hit repeatedly by others, including members of the percussion
section. Next, the participant is prepped. During the prepping, the
participant stands up and places his or her hands on the luggage rail
and is then slapped a number of times with full force by the others on
the bus. After the prepping, the participant crosses from the front of
the bus to the back while others slap, kick, and punch the participant.
[Martin], as bus president, decided when someone could cross Bus C.
On [November 19, 2011], Keon Hollis, Robert Champion, and
[Martin], as members of the Marching 100, performed at the Florida
Classic in Orlando, Florida. Immediately following the band’s
performance, [Martin] asked Hollis if he planned to cross the bus.
Hollis indicated that he wanted to do so. Later, Jonathan Boyce, also
a member of the band, received a text from [Martin] asking him to
convey to Hollis and Champion that if they wanted to cross “it’s
available” to them.
That night, Lissette Sanchez (another member of the percussion
section), Hollis, and Champion crossed Bus C, and [Martin]
participated in these crossings. Champion was the last to cross.
When Champion made it to the back, he appeared tired, but indicated,
“I’m good.” After the crossings were completed, everyone left the
bus except Champion. When Boyce noticed that Champion was not
with him, he returned to the bus. He found Champion in the back of
the bus panicking; and, shortly thereafter, Champion passed out.
Champion was taken to a hospital, but efforts to save his life were not
successful.
Champion’s body was transferred from the hospital to the
medical examiner’s office. Dr. Sarah Irrgang, the associate medical
examiner, visually examined Champion’s body. She observed some
discoloration and a few superficial abrasions, she took several
photographs, and then released Champion’s body for bone harvesting.
The next day, after his leg bones had been harvested, Champion’s
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body was returned to the medical examiner’s office. At that time, Dr.
Irrgang noticed unevenness in the skin on Champion’s torso,
suggesting swelling. This observation prompted Dr. Irrgang to
investigate further. She took a number of pictures of Champion’s
body during the ensuing autopsy. Based on her investigation, she
determined that the manner of death was homicide.
Martin v. State, 207 So. 3d 310, 313-14 (Fla. 5th DCA 2016).
III.
In evaluating Martin’s overbreadth and vagueness challenges, the Fifth
District began by acknowledging the analytical framework set forth by the
Supreme Court in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 1:
When addressing constitutional challenges to statutes based on the
doctrines of overbreadth and vagueness,
[a] court’s first task is to determine whether the
enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the
overbreadth challenge must fail. The court should then
examine the facial vagueness challenge and, assuming
the enactment implicates no constitutionally protected
conduct, should uphold the challenge only if the
enactment is impermissibly vague in all of its
applications. A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others.
A court should therefore examine the complainant’s
conduct before analyzing other hypothetical applications
of the law.
State v. Kahles, 644 So. 2d 512, 512-13 (Fla. 4th DCA 1994) (quoting
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
1. 455 U.S. 489 (1982).
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489, 494-95, 102 S. Ct. 1186, 71 L.Ed.2d 362 (1982)), approved, 657
So. 2d 897 (Fla. 1995) (footnotes omitted).
Martin, 207 So. 3d at 314-15.
In line with this framework, the Fifth District first considered Martin’s
argument that the hazing statute is unconstitutionally overbroad on its face. The
district court rejected Martin’s argument on this point because Martin failed to
make the necessary showing that the hazing statute “is susceptible of application to
speech or conduct protected by the First Amendment.” Id. at 316. According to
the Fifth District, Martin “ha[d] not demonstrated that the hazing statute
criminalizes any speech or conduct protected by the First Amendment” and “his
overbreadth challenge [therefore] fails.” Id. The court also rejected an as-applied
overbreadth challenge, concluding that Martin had not shown “that the hazing
statute criminalized his own conduct, which was protected by the First
Amendment.” Id.
After addressing the overbreadth challenges, the court turned to Martin’s
argument that the hazing statute is unconstitutionally vague. In brief, the district
court ruled that Martin’s conduct was “plainly prohibited by the statute,” and that
Martin therefore “lack[ed] standing to challenge the statute.” Id. at 317.
Specifically, the court rejected the argument that the reference in the statutory
definition of hazing to “brutality of a physical nature” was vague. Id. The court
reasoned that because the victims “were beaten repeatedly,” the defendant’s
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participation in the episode violated the plain terms of the statute. Id. Similarly,
the court rejected Martin’s argument that the statutory exception for
“competitions” was vague. In doing so, the court referred to certain dictionary
definitions of “competition”—including the definition in Webster’s Third New
International Dictionary of competition as “a common struggle for the same
object”—to show that the term “competition” “is sufficiently definite such that the
defendant was not forced to guess at its meaning.” Id. at 317-18.
IV.
A.
We first examine Martin’s argument that the hazing statute is
unconstitutionally overbroad on its face for criminalizing constitutionally protected
speech and conduct. Martin bases this overbreadth argument specifically on the
claim that subsection (5)(a) of the hazing statute—which provides that the victim’s
consent is not a defense—makes criminal a substantial amount of protected speech
and conduct. Martin contends that the “statute’s criminalization of voluntary acts
in many circumstances chills commonplace and customary conduct.” This
argument fails to show that the criminal hazing statute meets the standard required
for establishing that a statute is unconstitutionally overbroad.
Under the First Amendment facial overbreadth doctrine, “[l]itigants . . . are
permitted to challenge a statute not because their own rights of free expression are
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violated, but because of a judicial prediction or assumption that the statute’s very
existence may cause others not before the court to refrain from constitutionally
protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612
(1973). The Court has said that the “function” of “facial overbreadth adjudication”
is “a limited one at the outset” and that it “attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from ‘pure speech’ toward
conduct and that conduct—even if expressive—falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.” Id. at
615.
The Court thus has recognized that “[a]lthough such laws, if too broadly
worded, may deter protected speech to some unknown extent, there comes a point
where that effect—at best a prediction—cannot, with confidence, justify
invalidating a statute on its face and so prohibiting a State from enforcing the
statute against conduct that is admittedly within its power to proscribe.” Id. The
overbreadth doctrine therefore requires that “particularly where conduct and not
merely speech is involved . . . the overbreadth of a statute must not only be real,
but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
Id.; see also United States v. Williams, 553 U.S. 285, 292 (2008) (“According to
our First Amendment overbreadth doctrine, a statute is facially invalid if it
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prohibits a substantial amount of protected speech. . . . In order to maintain an
appropriate balance, we have vigorously enforced the requirement that a statute’s
overbreadth be substantial, not only in an absolute sense, but also relative to the
statute’s plainly legitimate sweep.”). “Application of the overbreadth doctrine . . .
is, manifestly, strong medicine. It has been employed by the Court sparingly and
only as a last resort.” Broadrick, 413 U.S. at 613.
As pointed out in the earlier discussion of the text of the hazing statute, the
criminal provisions of the statute require that “the hazing results in serious bodily
injury or death” (for a felony offense) or that “the hazing creates a substantial risk
of physical injury or death” (for a misdemeanor offense). § 1006.63(2)-(3), Fla.
Stat. The focus of the criminal hazing statute thus undoubtedly is on physical harm
and the risk of physical harm. Any impact on speech or expressive conduct is
insubstantial and purely incidental to the purpose of preventing physical harm.
Given the “plainly legitimate sweep” of the hazing statute, it cannot be said that the
statute “prohibits a substantial amount of protected speech.” The “strong
medicine” of the overbreadth doctrine has no application in this context. Martin’s
overbreadth challenge fails.
B.
We turn now to Martin’s void-for-vagueness claims, in which he argues that
the hazing statute is unconstitutionally vague not only as applied to him but also on
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its face. His as-applied argument is based largely on the assertion that the term
“competition” in the last sentence of the definition of hazing in subsection (1)
“lacks precision.” In brief, Martin contends that because “the bus crossing bore
sufficient indicia of being a competition,” the statute was unconstitutional as
applied to him. Martin’s argument that the statute is facially invalid relies more
broadly on the last sentence of the definition of hazing. He contends that
uncertainty in the interpretation of the terms contained in that sentence—which
excludes certain categories of conduct from the scope of the definition of hazing—
renders the statute void for vagueness in “its entirety.” Martin has failed to
establish that the statute is invalid either facially or as-applied.
It has long been recognized “[t]hat the terms of a penal statute creating a
new offense must be sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties” and that “a statute
which either forbids or requires the doing of an act in terms so vague that [people]
of common intelligence must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.” Connally v. Gen.
Constr. Co., 269 U.S. 385, 391 (1926). “A statute can be impermissibly vague for
either of two independent reasons. First, if it fails to provide people of ordinary
intelligence a reasonable opportunity to understand what conduct it prohibits.
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Second, if it authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000).
In discussing the standards governing facial vagueness challenges, the Court
has previously said that a law is facially unconstitutional only if it “is
impermissibly vague in all of its applications.” Hoffman Estates, 455 U.S. at 495;
see also United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to
a legislative Act is[—outside the limited context of the First Amendment
overbreadth doctrine—]the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the
Act would be valid.”). But the Court more recently explained in Johnson v. United
States, 135 S. Ct. 2551, 2560-61 (2015), that “although statements in some of [the
Court’s] opinions could be read to suggest otherwise, [the Court’s] holdings
squarely contradict the theory that a vague provision is constitutional merely
because there is some conduct that clearly falls within the provision’s grasp.” The
Court this year reinforced the point in Sessions v. Dimaya, 138 S. Ct. 1204, 1214
n.3 (2018) (“Johnson made clear that our decisions ‘squarely contradict the theory
that a vague provision is constitutional merely because there is some conduct that
clearly falls within the provision’s grasp.’ ” (quoting Johnson, 135 S. Ct. at 2561)).
Thus a “shapeless,” Johnson, 135 S. Ct. at 2560, “hopeless[ly]
indetermina[te],” id. at 2558, statute that produces “grave uncertainty,” id. at 2557,
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regarding its scope will not survive a facial vagueness challenge even though
“some conduct . . . clearly falls within the provision’s grasp,” id. at 2561. See
Salman v. United States, 137 S. Ct. 420, 428-29 (2016) (rejecting an as-applied
vagueness challenge in part because the petitioner failed to demonstrate that the
statute was “shapeless,” plagued by “hopeless indeterminacy,” or subject to “grave
uncertainty” regarding its scope (quoting Johnson, 135 S. Ct. at 2557, 2558,
2560)). Put another way, a statute that contains “no standard whatever by which
criminality c[an] be ascertained . . . is vague ‘not in the sense that it requires a
person to conform his conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of conduct is specified at all.’ ”
Parker v. Levy, 417 U.S. 733, 755 (1974) (quoting Coates v. City of Cincinnati,
402 U.S. 611, 614 (1971)); see Smith v. Goguen, 415 U.S. 566, 578 (1974) (“Such
a provision simply has no core.”).
To understand the proper scope of the void-for-vagueness doctrine, that
doctrine must be viewed in conjunction with the rule of lenity. In Skilling v.
United States, 561 U.S. 358, 403 (2010), the Court—in rejecting a void-for-
vagueness challenge—recognized that the “case law’s current” requires courts if
possible “to construe, not condemn, [legislative] enactments.” The Court there
pointed generally to the well-established rule that “before striking a . . . statute as
impermissibly vague” courts should “consider whether the prescription is
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amenable to a limiting construction,” id. at 405, and specifically to “the familiar
principle that ‘ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity,’ ” id. at 410 (quoting Cleveland v. United States, 531
U.S. 12, 25 (2000)). We have likewise applied the rule of lenity to resolve an
ambiguity in the scope of a criminal statute rather than declaring the statute
unconstitutionally vague. See State v. Weeks, 202 So. 3d 1, 4 (Fla. 2016) (rejecting
void-for-vagueness challenge, applying the rule of lenity and stating that “by
applying well-established principles of statutory construction, we conclude that we
are able to construe the statute in a manner that avoids holding it unconstitutionally
vague and does not effectively rewrite the statute”). Run-of-the-mill ambiguity
regarding particular applications of a criminal statute therefore does not warrant
application of the void-for-vagueness doctrine. Cf. Dimaya, 138 S. Ct. at 1232
(Gorsuch, J., concurring in part and concurring in judgment) (“The implacable fact
is that this isn’t your everyday ambiguous statute. It leaves the people to guess
about what the law demands—and leaves judges to make it up. You cannot
discern answers to any of the questions this law begets by resorting to the
traditional canons of statutory interpretation.”).
Here, at most, the various detailed arguments that Martin raises concerning
the terms of the hazing statute do not point to anything that goes beyond run-of-
the-mill ambiguity. And no actual ambiguity in the terms of the statute has been
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identified by Martin that has any bearing on the offenses for which Martin was
convicted. The conduct in which Martin was involved falls squarely and
unambiguously within the statute’s core proscription of “brutality of a physical
nature, such as whipping” or “beating” that “intentionally or recklessly” “results in
serious bodily injury or death” or “creates a substantial risk” of such harms.
§ 1006.63(1)-(3), Fla. Stat.
We categorically reject Martin’s argument that section 1006.63(1) failed to
place him on adequate notice that “Crossing Bus C” is not an exempt
“competition[]” under the statute and failed to provide explicit standards of
enforcement for the undefined term “competition[].” Martin’s argument on this
score is based on reading the term “competition[]” in isolation from its statutory
context. The final sentence of the definition of hazing provides that hazing “does
not include customary athletic events or other similar contests or competitions or
any activity or conduct that furthers a legal and legitimate objective.”
§ 1006.63(1), Fla. Stat. The most natural reading of this sentence requires
understanding that the word “similar” modifies the terms “contests or
competitions.” See id.
This conclusion is bolstered by the fact that “customary athletic events” such
as football, baseball, basketball, soccer, and hockey as well as track and field
events are commonly referred to both as “contests” and “competitions.” Indeed,
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“competition” and “contest” are ordinarily understood to be synonymous. See The
American Heritage Dictionary 376, 397 (5th ed. 2011) (defining the term
“competition” as “a contest” and defining the term “contest” as “[a] competition,
especially one in which entrants perform separately and are rated by judges”).
This conclusion is further bolstered by the fact that in order to interpret the word
“similar” as disjunctive to the term “competition[],” this Court would have to adopt
the nonsensical view that a “customary athletic event[]” is not, in fact, a
“competition[].” See § 1006.63(1), Fla. Stat.
Therefore, the relevant question is not whether the term “competition[]” is
vague, but rather whether the term “similar . . . competition[]” is vague. It is not.
The tradition or ritual known as “Crossing Bus C” is not a “similar . . .
competition[]” to any “customary athletic event[].” See id. The crossing of Bus C
simply does not comport with any commonly accepted understanding of a
“competition[]” similar to a “customary athletic event[]”: the person crossing is not
competing against another person or group of persons, no one keeps score during
the crossing because there is no system of scoring, the crossing is not timed, no
prize is awarded after the crossing, no referee oversees the crossing (either to
enforce rules or protect the life of the participant), and the participant “wins” the
crossing by surviving a brutal beating. To the contrary, the crossing most closely
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resembles the infamous military punishment known as the “running of the
gauntlet.”
V.
We approve the conclusion that Martin’s challenges to the constitutionality
of the hazing statute are without merit. We therefore approve the decision of the
Fifth District affirming Martin’s convictions and sentences.
It is so ordered.
QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.
PARIENTE and LEWIS, JJ., concur in result.
ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED
WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR
REHEARING/CLARIFICATION. NOT FINAL UNTIL THIS TIME PERIOD
EXPIRES TO FILE A REHEARING/CLARIFICATION MOTION AND, IF
FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal – Statutory
Validity
Fifth District - Case No. 5D15-284
(Orange County)
Rupak R. Shah of Escobar & Associates, P.A., Tampa, Florida,
for Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau
Chief, Kristen L. Davenport and Bonnie Jean Parrish, Assistant Attorneys General,
Daytona Beach, Florida,
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for Respondent
Michael R. Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, Florida;
and M. Stephen Turner of M. Stephen Turner, P.A., Tallahassee, Florida,
For Amicus Curiae Florida Association of Criminal Defense Lawyers
Arthur (Buddy) Jacobs of Jacobs Scholz & Associates LLC, Fernandina Beach,
Florida,
for Amicus Curiae Professor Gregory S. Parks for HazingPrevention.org
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