Opinion
No. 45673.
December 10, 1975.
Appeal from the Circuit Court, Collier County, Henry L. Balaban, J.
Steadman S. Stahl, Jr., of Varon, Stahl Kay, Hollywood, and Archie Odom, Port Charlotte, for appellant.
Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for appellee.
This case is before this Court upon the constitutionality of the riot statute, Section 870.01(2), Florida Statutes (1973). The appellant, Amos Baker, was charged in an information as follows:
"AMOS BAKER, did then and there riot, or incite a riot, or encourage a riot."
The appellant moved to dismiss the information on the grounds that:
". . . Chapter 870.01 of the Florida Statutes is unconstitutional in that it fails to set forth sufficient information and guidelines. . . ."
The trial court denied the motion to dismiss. We have jurisdiction.
Article V, Section 3(b)(1), Florida Constitution.
The appellant was tried by a jury, which returned its verdict of guilty to the offense charged in the information. The appellant was sentenced to five years in the state prison.
We hold Section 870.01(2), Florida Statutes (1973), is constitutional in accordance with our recent decision in State v. Beasley, 317 So.2d 750 (Fla. 1975), and the restrictive construction contained therein. Under the guidelines set out in State v. Beasley, supra, the information in this cause is insufficient to properly charge the offense of riot. The trial court is reversed, and the conviction and sentence are hereby vacated, without prejudice to the State to file an amended information.
This cause is remanded for proceedings not inconsistent herewith.
It is so ordered.
ADKINS, C.J., and ROBERTS, BOYD, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.