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IN THE COUNTY COURT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA.

                                                                                             CRIMINAL DIVISION
STATE OF FLORIDA
                                                                                             CASE NO: 81-4520
                 VS.
                                                                                             DIVISION A
KAREN N. McCLENNAN

ORDER GRANTING MOTION TO DISMISS INFORMATION

The above-entitled cause came on to be heard before the undersigned County Court Judge on May 21, 1981 from the following pleadings:

Motion to Quash Information and Motion to Dismiss filed by the Defendant.
Motion to Strike Motion to Dismiss, filed by the State of Florida.
Traverse of Motion to Dismiss, filed by the State of Florida.
Motion to Compel Disclosure of all Evidence Favorable to Defendant,

filed by the Defendant.

and the Court having read and considered said pleadings and the Court having heard and considered argument of counsel, finds:

A. That the facts alleged in said Motion to Quash Information and Motion to Dismiss are specifically alleged and sworn to as required by Rule 3.190(c)(4) of the Florida Rules of Criminal Procedure.

B. That the Traverse filed by the State of Florida on May 18, 1981 does not with specificity deny under oath the material facts alleged in the Motion to Quash Information and Motion to Dismiss, as provided for in Rule 3.190(d) of the Florida Rules of Criminal Procedure and that the Amended Traverse filed by the State of Florida on May 21, 1981 was not timely filed before the hearing and does not with specificity deny under oath the material facts alleged in the Motion to Quash Information and Motion to Dismiss, as provided for in Rule 3.190(d) of the Florida Rules of Criminal Procedure.

C. That the information filed by the State of Florida in the above-entitled cause charges the Defendant with exhibiting and exposing her sexual organ in a vulgar and indecent manner so as to be seen by another in violation of Section 800.03 F.S. and, as for the essential facts constituting the offense charged, the Information alleges that, "The Defendant did go naked near the private premises of another as to be seen from such private premises." The Information does not allege the name of the person or persons who saw the Defendant and it does not identify the private premises from which the Defendant was seen.

D. That the undisputed facts alleged in Defendant's Motion to Quash Information and Motion to Dismiss, in summary, indicate that on February 19, 1981 the Defendant was in the backyard of her home sunbathing in the nude, reclining horizontally on a lounge chair and that a six foot high wooden fence of vertical slats surrounded the backyard and that said backyard could be seen through vertical slits of said fence.

E. That the Information on its face does not charge an offense under the Laws of the State of Florida.\

F. That, under the undisputed facts alleged in the Motion to Quash Information and Motion to Dismiss, the Defendant, a female person, could not have exposed her sexual organ for the reason that the female sexual organs, which are the ovaries, the fallopian tubes and the uterus, are internal and cannot be seen except by an internal examination of the female person with the use of medical instruments. This finding is supported by the opinion in the case of G. and B. of Jacksonville, Inc. vs. State, 362 So.2d 951, 1st D.C.A., which states, "No esoteric discussion is required in order to define or describe "sexual organs", nor the location thereof on the human anatomy. Suffice to say, that exposure of the pubic hair or buttocks or legs (or all three) do not constitute exposure of the sexual organ.", as well as reference to medical literature pertaining to the female anatomy.

G. That there is no allegation of facts in any of the pleadings indicating that the Defendant acted in a vulgar or indecent manner, an essential element of a charge under Section 800.03 F.S.  Hoffman vs. Carson, 250 So.2d 891, Sup. Ct. Fla. 1971. "Vulgar", is defined in Ballentine's Law Dictionary as lack of taste in language, particularly in using coarse or indecent terms. "Indecent" is defined as lewd, lascivious, or obscene.\

It is therefore,

ORDERED AND ADJUDGED that:

1. The Motion to Strike, filed by the State of Florida, be, and the same is hereby, denied.

2. The Motion to Dismiss, filed by the Defendant be, and the same is hereby, granted.

3. It is unnecessary for the Court to rule on the Motion to Compel the Disclosure of All Evidence Favorable to Defendant.

4. This written Order reflects the oral Order entered by the undersigned Judge at the close of the hearing on May 21, 1981.

DONE AND ORDERED in Tampa, Hillsborough County, Florida, this 29th day of May, 1981.

<Signature of Ralph Steinberg>
COUNTY COURT JUDGE RALPH STEINBERG

CC:    Office of the State Attorney
           Charles R. Mayer, Attorney for Defendant

<Timestamped May 29, 11:45 AM '81, Clerk, County Court, Hillsborough County, Fla>

 

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