It is well-established that criminal statutes are to be strictly construed (without exception) against the government and in-favor of the accused. It is called the rule of lenity.[i] If there is any confusion or doubt about what the statute might be referring to, then the confusion or doubt must be resolved in favor of the accused citizen. It is a rule of statutory construction (like “plain meaning,” originalism, textualism, or ejusdem generis).
In her concurring opinion in Eustache v. State, 248 So.3d 1097, 1104 (Fla. 2018), Justice Pariente points out the following, “The rule of lenity provides that ambiguities in criminal statutes must be resolved in favor of the defendant. See State v. Weeks, 202 So.3d 1, 8 (Fla. 2016). [omitted] ‘The rule of lenity requires that ‘any ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.’’ State v. Byars, 823 So.2d 740, 742 (Fla. 2002); see also Kasischke v. State, 991 So.2d 803, 814 (Fla. 2008).” It is a rule of just fairness.
Our system of government (whether at the federal or state levels) relies on interrelationship between the branches. These interrelationships create a system of checks and balances between the three branches of government. Each branch has its own lane. In its simplest formulation, the legislature writes the laws. The executive carries out the laws. The judiciary interprets the laws. And that is the way it is. The idea is that no one branch is more powerful than any other and all must work together to sustain our democratic form of government. See Art. II, Sec. 3, Fla. Const. (1968 Revision).[ii]
Fyodor Dostoyevsky stated, “A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” It makes sense. Criminal statutes need to be fair and just. And these statutes must be created by the legislature.
Respectfully on this point, the judiciary (i.e., the courts) is not free to make up criminal offenses (or create local criminal practices outside of the established statutes or court procedures). To do so would be to violate the “separation of powers” between the branches of government. [iii] Only the legislature (with the governor’s ratifying signature (or a majority veto override in both houses))[iv] can enact a criminal statute.[v]
In fact, any criminal statute created by a court is void ab initio and a nullity because the court does not have the power to make a law. The same holds true for the executive (e.g., the president or the governor) who imposes some type of criminal sanction without any legislative action. That too would be a nullity. For the exact same reason, the executive branch cannot make any laws including criminal laws. Only the legislature can make a criminal statute.
Keep this in mind next time you vote for your congressperson or local legislators. It is these individuals that impact your life on a personal level. Maybe not immediately, but their actions always seem to filter down to the everyday Floridian. And while they might be from the same party as you or look like you or “talk a good game,” the question you must ask yourself – – is this, “do they really have my best interests at heart?”
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
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Image source: Schoolhouse Rock! 1979. “I’m Just a Bill.” ABC https://www.cnn.com/2013/01/14/politics/schoolhouse-rock-40/index.html
No. 21-003
[i] See §775.021, Fla. Stat., (Rules of construction (e.g., the Rule of Lenity)); McLaughlin v. State, 721 So.2d 1170 (Fla. 1998); and Wallace v. State, 860 So.2d 494 (Fla. 4th DCA 2003), rehearing denied.
[ii] SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Art. II, Sec. 3, Fla. Const. (1968 Revision).
[iii] “Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.” https://www.law.cornell.edu/wex/separation_of_powers#:~:text=Separation%20of%20powers%20is%20a,and%20balance%20the%20other%20branches.
[iv] Majority overrides do not happen often. Since 1789, 106 veto overrides. (And I am not sure that includes the veto override from the other day on the military bills). https://www.archives.gov/files/legislative/resources/education/veto/background.pdf
[v] https://www.cnn.com/2013/01/14/politics/schoolhouse-rock-40/index.html https://www.youtube.com/watch/FBpdxEMelR0