STATE v. CROMARTIE

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District Court of Appeal of Florida,Fourth District.

STATE of Florida, Appellant, v. Xavier CROMARTIE, Appellee.

No. 4D05-1568.

Decided: September 27, 2006

Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant. No appearance for appellee.

Cromartie, a county jail inmate, was masturbating in a jail cell while looking at deputy Francine Smith. She observed him and ordered him to stop. Instead, he continued. The jail cell was in the jail infirmary and was open to view.

Cromartie was charged with violating section 800.03, Florida Statutes, covering exposure of sexual organs.1

The trial court granted a motion to dismiss, reasoning that a police officer cannot be an offended party as to the exposure of sexual organs and that a jail cell is not a public place, relying on State v. Silvers, 7 Fla. L. Weekly Supp. 592 (Fla. 17th Cir. July 31, 2000).

Section 800.03, Florida Statutes, reads:

800.03 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, punishable as provided in s. 775.082 or s. 775.083. A mother's breastfeeding of her baby does not under any circumstance violate this section.

The question is whether Cromartie's exposure was “in public,” “so near [the private premises of another] as to be seen from such private premises,” or if he was “naked in public [in a] place provided or set apart for that purpose.” We note that, by its plain wording, the statute does not require the state prove a party was offended. We further note that the offense is defined by whether the conduct occurs in public or private, and under what conditions. See State v. Kees, 919 So.2d 504, 505 (Fla. 5th DCA 2005).

There are patently aspects of a jail cell that do not comport with a public place in the sense that it is not open to the public at large. However, we can discern no basis to ignore the fact that the cell in this case2 is public in the aspect that an inmate has no control over persons being present at any given time. Cromartie's infirmary cell was open to view by any authorized employee, nursing staff, cleaning personnel, or visitors. Further, as soon as the deputy told him to stop, Cromartie was on notice that he was not alone. He, nevertheless, chose to continue his display, in violation of the statute.

We reverse the trial court's dismissal and remand for further proceedings.

STONE, J.

STEVENSON, C.J. and POLEN, J., concur.

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