DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DAMIEN HERMAN GILLIAMS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-2667
[April 12, 2023]
Appeal from the County Court for the Nineteenth Judicial Circuit,
Indian River County; Michael Linn, Judge; L.T. Case No.
312020MM001119A.
Ama N. Appiah of the Law Office of Ama N. Appiah, P.A., St. Petersburg,
for appellant.
Ashley Moody, Attorney General, Tallahassee, and Lindsay A. Warner,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
After the City of Sebastian’s city manager announced a cancellation of
a properly noticed city council meeting, three councilmembers, including
the appellant, Damien Gilliams, held a meeting anyway, during which they
voted to terminate the employment of the city manager, the city attorney,
and the city clerk, and voted to remove the mayor and replace him with
Gilliams. Based on this meeting and telephone calls between Gilliams and
Sebastian City Councilmembers Pamela Parris and Charles Mauti before
and after the meeting, Gilliams was convicted of three counts of violating
section 286.011, Florida Statutes (2019), commonly referred to as the
Sunshine Law. He was also convicted of perjury based on a statement he
made to state attorney investigators Ed Arens and Jeff Kittredge during an
investigation of the Sunshine Law violation. Gilliams raises multiple
issues on appeal. We agree with Gilliams that his perjury conviction
should be reversed, as the state did not prove he made the false statement
alleged. We affirm with respect to the remaining issues, because they lack
merit or were not preserved.
Sunshine Law Convictions
Gilliams first challenges his Sunshine Law convictions, arguing that
the statute is unconstitutionally vague due to undefined terms in the
statute, namely “meeting” and “reasonable notice.” 1 We disagree. “There
is a strong presumption that a statute is constitutionally valid, and all
reasonable doubts about the statute’s validity must be resolved in favor of
constitutionality.” State v. Catalano,
104 So. 3d 1069, 1075 (Fla. 2012).
However, “in a vagueness challenge, any doubt as to a statute’s validity
should be resolved in favor of the citizen and against the State.”
Id.
(quoting DuFresne v. State,
826 So. 2d 272, 274 (Fla. 2002)). “One who
challenges the constitutionality of a statute has the burden of
demonstrating its invalidity.” Dep’t of Child. & Fam. Servs. v. Nat. Parents
of J.B.,
736 So. 2d 111, 113 (Fla. 4th DCA 1999) (citation omitted). As we
explained in our opinion in Gilliams’s co-defendant’s appeal, where we also
addressed a vagueness challenge:
“[I]n order to withstand a vagueness challenge, a statute must
provide persons of common intelligence and understanding
adequate notice of the proscribed conduct. Additionally, the
statute must define the offense in a manner that does not
encourage arbitrary and discriminatory enforcement.”
DuFresne v. State,
826 So. 2d 272, 275 (Fla. 2002) (citations
omitted). “However, ‘[t]he legislature’s failure to define a
statutory term does not in and of itself render a penal
provision unconstitutionally vague. In the absence of a
statutory definition, resort may be had to case law or related
statutory provisions which define the term . . . .’”
Id.
(alterations in original) (quoting State v. Hagan,
387 So. 2d
943, 945 (Fla. 1980)). “[I]n cases where the exact meaning of
a term was not defined in a statute itself, we have ascertained
its meaning by reference to other statutory provisions, as well
as case law or the plain and ordinary meaning of a word of
common usage.”
Id.
Parris v. State, 4D21-2682 (Fla. 4th DCA Apr. 12, 2023).
In Parris, we explained that the plain and ordinary meaning of the
words “reasonable” and “notice,” as well as court opinions addressing the
meaning of “reasonable notice,” provide sufficient guidance as to the
1 Gilliams points to other undefined words and phrases in the statute, but he
either provides no argument or undeveloped argument as to those terms, or his
argument was not preserved below.
2
phrase’s meaning in the context of the Sunshine Law. Id.; see also
Transparency for Fla. v. City of Port St. Lucie,
240 So. 3d 780, 787 (Fla. 4th
DCA 2018) (holding that what constitutes “reasonable notice” in any given
case is a fact specific inquiry, and whether notice was reasonable depends
on the purpose for the notice, the character of the event about which notice
is given, and the nature of the rights to be affected); Fla. Citizens All., Inc.
v. Sch. Bd. of Collier Cnty.,
328 So. 3d 22, 28 (Fla. 2d DCA 2021) (citing
Transparency for Fla. and holding that “burying a notice inside a
committee application and calendar on the instructional materials page of
the District’s website is an unreasonable way to give public notice of a
meeting”).
As for the word “meeting,” Gilliams argues that the definition provided
to the jury, which includes the language “through wire or electronic
means,” is inconsistent with the dictionary definition of “meeting” and is
also contrary to the definition of the word at the time of the statute’s
enactment. Thus, he argues, a telephone conversation should not be
considered a “meeting.”
“Meeting” is defined as “an organized gathering of people for a
discussion or other purpose . . . a situation in which people meet by chance
or arrangement.” Oxford Am. Dictionary & Thesaurus (2d ed. 2009). Our
courts have recognized that meetings which do not occur in person can
potentially violate the Sunshine Law. See Transparency for Fla., 240 So.
3d at 785 (recognizing that a series of phone meetings between
councilmembers and city attorney could have violated the Sunshine Law);
Sarasota Citizens for Responsible Gov’t v. City of Sarasota,
48 So. 3d 755,
766 (Fla. 2010) (“[A]ny possible violations that occurred when Board
members circulated e-mails among each other were cured by subsequent
public meetings . . . .”). These interpretations of the statute are consistent
with its plain language. See Robert Michael Eschenfelder, Modern
Sunshine: Attending Public Meetings in the Digital Age,
84 Fla. B.J. 28, 28
(Apr. 2010) (“Given the lack of any constitutional or statutory definition of
the word ‘meeting,’ coupled with the ability of modern technology to allow
meetings to be attended by persons physically located in different
countries, a plain language reading of the word would seem to allow
meetings subject to the Sunshine Law to be conducted and attended
electronically.”). 2 To interpret the statute as applying only to in-person
meetings would render an absurd result.
2Notably, the Government-in-the-Sunshine Manual, published by the Attorney
General to help public officials navigate the Sunshine Law, provides an accurate
explanation of the law in that “[p]rivate telephone conversations between board
members to discuss matters which foreseeably will come before that board for
3
Perjury Conviction
Gilliams next argues that the trial court erred in denying his motion for
judgment of acquittal as to the perjury count. We agree. The state alleged
that Gilliams “falsely told a law enforcement officer that he had only one
phone conversation with another council member on April 22, 2020 . . . .”
However, the state failed to prove: (1) Gilliams actually stated that he had
only one phone conversation with another councilmember on the date in
question; and (2) Gilliams had more than one phone conversation with a
councilmember during the period of time about which he was interrogated.
At trial, the state submitted a surveillance video and photographic stills
showing Gilliams entering city hall at 5:30 p.m. on April 22, 2020, and
speaking on a cell phone. The state also introduced into evidence an
investigator’s summary, which reflected that calls were made from
Gilliams’s cell phone to Parris’s cell phone throughout the day starting in
the morning and continuing into the afternoon and evening, and that calls
were also made that day between Gilliams and Mauti.
The state also submitted as evidence Gilliams’s recorded statement to
investigators Arens and Kittredge. During questioning, Gilliams explained
that one of his supporters, Russell Herrmann, called him on April 22 and
asked if he was “coming down” to city hall. Gilliams responded that the
meeting had been canceled. Herrmann encouraged him to go to city hall,
as “your supporters are all down here and they want to have a rally.”
Gilliams dressed quickly and “brought my bullhorn.” Upon his arrival, he
met up with councilman Mauti. He believed Herrmann had called Parris
to tell her about the rally.
Arens inquired whether Gilliams had asked Herrmann to contact Parris
to tell her “we’re having a meeting,” and Gilliams responded, “No. I was
there for a rally.” Gilliams acknowledged that in the surveillance video, he
can be seen talking on the phone. Arens stated that it “looked [like] . . .
you made some phone calls.” Gilliams responded, “I made one phone call.”
When asked who he called, he declined to say. The following exchange
occurred:
Q: Did you call Councilman Parris?
A: No.
action violate the Sunshine Law.” 44 Government-in-the-Sunshine Manual §
1.C.16.a. (2022 ed.).
4
Q: Did you text or contact Councilman Parris . . . in any
way?
A: I, I told you earlier, when I got there –
Q: Right.
A: -- that was the only time that I had called her, about the
rally. I told you that . . . just a few minutes ago.
Q: No, you didn’t say that you called her. You said Mr.
Herrmann called her.
A: No, and I also called her as well.
Q: Okay. I missed that.
A: Yeah. I’m . . . sorry . . . I also asked her, I said, “Are you
coming down to the rally, I’m down here.” She says, she
wasn’t sure. I said, “So, okay, I’m going to be down
here.”
....
Q: Anyway, so you did call Councilman Parris and asked
her if she was –
A: About the rally.
Q: About coming to the rally.
A: Correct.
The investigative interview moved on to other topics. Investigator
Kittredge then asked if, after Gilliams “decided to show up or go” to city
hall, “[d]id you have any communication with Parris or Mauti via phone
text?” Gilliams stated, “I think I called [Parris], not text.” He denied any
“texting.” He called Parris to ask if she was going to come to the rally.
After Kittredge questioned Gilliams about details regarding the meeting
held on April 22, Arens returned to the topic of “who [Gilliams] called,” as
depicted on surveillance video. Gilliams said he “called [his] attorney.”
5
Gilliams moved for a judgment of acquittal on the perjury charge,
arguing that the investigators’ questions were not sufficiently specific to
support a finding that Gilliams made the perjurious statement alleged in
the information. The trial court denied the motion.
We review a trial court’s denial of a motion for judgment of acquittal de
novo. McCray v. State,
256 So. 3d 878, 881 (Fla. 4th DCA 2018). Gilliams
was convicted of perjury under section 837.012, Florida Statutes (2019),
which provides that “[w]hoever makes a false statement, which he or she
does not believe to be true, under oath, not in an official proceeding, in
regard to any material matter shall be guilty of a misdemeanor of the first
degree.” § 837.012(1), Fla. Stat. (2019). “The statement alleged to be
perjury must be one of fact, and not of opinion or belief.” Vargas v. State,
795 So. 2d 270, 272 (Fla. 3d DCA 2001). “The questions posed to elicit
perjured testimony must be asked with the appropriate specificity
necessary to result in an equally specific statement of fact.” Cohen v. State,
985 So. 2d 1207, 1209 (Fla. 3d DCA 2008). “Precise questioning is
imperative as a predicate for the offense of perjury.”
Id. (quoting Bronston
v. United States,
409 U.S. 352, 362 (1973)). “[A]n initially false statement
. . . can be further explained so that the statement taken as a whole is not
perjury.” McAlpin v. Crim. Just. Stds. & Training Comm’n,
155 So. 3d 416,
421 (Fla. 1st DCA 2014).
Here, the state alleged that Gilliams falsely stated that “he had only one
phone conversation with another council member on April 22, 2020.”
Thus, the state’s theory seemed to be that Gilliams either spoke to Parris
more than once or he spoke to Parris and another councilmember. The
investigators’ questioning regarding the phone calls that resulted in the
purported perjury was related to calls made after Gilliams arrived at city
hall, at about 5:30 p.m. Arens stated during the interview that it appeared
on the video Gilliams was making phone calls. Gilliams responded that
he made “one phone call.”
To the extent Gilliams lied about the number of phone calls which he
made to Parris, that was not the state’s allegation. The phone records
summary shows that for the relevant time period, one call from Gilliams
to Parris was made at 5:32 p.m. and lasted 1 minute and 34 seconds. A
second phone call from Gilliams to Parris was made at 5:34 p.m. and
lasted for 11 seconds. There was no evidence that the 11-second call
constituted a “conversation.” Arens acknowledged during cross-
examination that many of the calls on the summary lasted only seconds,
and he could not say whether anyone answered phone calls. He explained
that the calls indicated “that person was trying to get ahold of the other
person and they tried diligently to do so, multiple times before they
6
answered.” He assumed longer calls on the summary constituted
conversations. Investigator Arens agreed that shorter calls “might simply
represent a no answer or some kind of voice mail or I’m not available.”
Further, even on longer calls, Arens could only say that “one phone
connected with another phone number at that particular time.” The phone
records summary also reflects a phone call from Mauti to Gilliams at 5:31
p.m. that lasted 35 seconds. Again, it’s not apparent a “conversation”
occurred. Consequently, it’s not apparent that Gilliams falsely stated “he
had only one phone conversation with another council member.” The
phone records summary shows other calls between Gilliams and the other
councilmembers on April 22, but the investigators’ questions were related
to the period of time when Gilliams can be seen on his phone in the video
– around 5:30 p.m.
Finally, Gilliams argues that the issue of materiality of the statements
underlying the perjury charge should have been submitted to a jury. The
Florida Supreme Court rejected this argument. See State v. Ellis,
723 So.
2d 187, 188 (Fla. 1998). Although Ellis involved a different perjury statute
than the one at issue here, both statutes “limit[] the statute’s sweep to
those false statements that concern ‘material matters.’” See
id. at 189; §§
837.02(1), Fla. Stat. (1993), 837.012(1), Fla. Stat. (2019). And, as in Ellis,
the applicable statute here provides that the issue of materiality is a
question of law. § 837.011(3), Fla. Stat. (2019) (defining “[m]aterial matter”
and providing that “[w]hether a matter is material in a given factual
situation is a question of law”).
Gilliams contends Ellis is no longer good law in light of Apprendi v. New
Jersey,
530 U.S. 466 (2000), where the United States Supreme Court held
that a factual determination that allows for an increase in the maximum
prison sentence must be made by a jury.
Id. at 490. This argument lacks
merit, as materiality is not a factual determination under chapter 837.
Indeed, after Apprendi issued, the Third District cited Ellis for the
proposition that materiality “is not an element of the crime of perjury in
Florida but is a threshold issue that a court must determine as a matter
of law prior to trial.” Vargas,
795 So. 2d at 272.
Conclusion
Based on the foregoing, we affirm Gilliams’s conviction of counts I-III,
violations of the Sunshine Law, and we reverse his conviction of count IV,
perjury, and remand for the trial court to vacate the conviction and
sentence on that count.
Affirmed in part, reversed in part, and remanded with instructions.
7
KLINGENSMITH, C.J., and WARNER, J., concur.
CIKLIN, J., concurs specially with opinion.
CIKLIN, J., concurring specially.
The majority opinion solidly stands for the “clinical” legal reasoning and
academic analysis behind our decision to both affirm and reverse certain
of the convictions that occurred before a jury below.
I think it is important, however, to issue a clarion call to the hundreds
of Florida public officials who are subject to the Florida Sunshine Law.
Indeed, as more and more individuals become Floridians and engage in
civic involvement, our new citizens need to be fully aware of Florida’s
Sunshine Law. 3 The appellate briefs filed in this case suggesting that the
Sunshine Law is vague and unclear or that the law is weak and unprovable
have given me pause and a commensurate urge to raise a warning flag. It
has been many years since a comprehensive opinion has been issued by a
Florida intermediate appellate court on the subject and, thus, perhaps this
admonition is particularly timely.
It seems unlikely, in this unfortunate series of events, that former
Sebastian City Councilmembers Pamela Parris and Damien Gilliams
would have ever thought it imaginable that they would now be appealing
criminal convictions for which they have been sentenced to serve jail time
of two months and six months, respectively. My guess is, that in
retrospect, they would have run away and resisted any temptation to get
caught up in the excitement of the moment . . . as, unfortunately, they
ultimately did. These recent Indian River County Sunshine Law
prosecutions and convictions illustrate actual examples of popularly
elected local governing body officials being ordered to do real jail time in a
real Florida county jail for the commission of a real Florida crime. Of
course, whether elected or appointed is of no consequence. The Florida
Sunshine Law applies equally to all.
After now engaging in significant research on the law itself, plus sitting
for oral argument on the topic in January, I have developed a concern that
some government officials subject to the Sunshine Law may not fully
appreciate the Law’s meaning and/or the possible criminal penalties that
3The Sunshine Law applies to “any board or commission of any state agency or
authority or of any agency or authority of any county, municipal corporation or
political subdivision.” § 286.011(1), Fla. Stat. (2019).
8
lie in wait for those who carelessly fail to fully comprehend the Sunshine
Law and abide by it. And this baffling complacency is not for want of
official publications—including the current 360-page Government-In-The-
Sunshine manual prepared by the Florida Attorney General. 44
Government-in-the-Sunshine Manual (2022 ed.). To be sure, the briefings
in these consolidated cases, and our majority opinion are considerably
lengthy because the issues are complex and yet, paradoxically, not all that
difficult to understand.
The scenario in this case is alarming. Three duly elected members of
the Sebastian City Council who were not allowed to privately discuss
foreseeable government issues did so anyway. They decided amongst
themselves—as their personal protest to the mayor and city manager’s
decision to cancel a regularly scheduled city council meeting because of
Covid—to enter the city council chambers and conduct the cancelled
meeting anyway. Armed with a government-issued pass key, and in unlit
city council chambers, these three city councilmembers took to the dais
and purported to take official action at what in essence became a
spontaneous, non-announced meeting of the three of them that lasted
until the police showed up. That imprudent action was itself a flagrant
violation of the Sunshine Law and a reading of the statute makes this
conclusion abundantly clear.
Whether two or more officials privately discuss, in any manner
whatsoever, a foreseeable issue of any magnitude, inside the other’s office
or at a coffee shop or in the spectator audience of a child’s soccer match
or at a statewide education conference or by quick text or whether they do
so through surrogates (such as aides, friends, relatives, other government
officials) or whether, as in this case, they decide to spontaneously convene
an unannounced rally or meeting, so long as two or more are involved,
these are all distinctions without a difference. And every individual
unauthorized private discussion between two or more officials along the
way constitutes an individual statutory crime against each person with
each separate charge carrying a possible penalty of 60 days in the county
jail. Plus a $500 fine. Plus substantial court costs. Plus six months of
probation. Per act. And notably, in the State of Florida, no statutory
sentencing guidelines exist for these types of crimes, and consecutive jail
sentences and consecutive probationary periods are permitted and within
the unfettered discretion of the trial judge.
Even though ample publications, and just as many available seminars,
meetings, discussions, and groups, are specifically charged with fully
educating officials subject to the Sunshine Law (which, ironically all three
9
charged city councilmembers attended), here are my very easy takeaways
from the current state of the Florida Sunshine Law.
1. Meetings of two or more fellow government officials who
are subject to the Sunshine Law are not allowed if any words
of any type pertaining to any possible foreseeable issue will be
communicated in any way unless they are open to the public
to whom reasonable notice has been provided.
2. There is rarely any purpose for a private meeting or
communication between two or more government officials who
are both subject to the Sunshine Law. Those who engage in
such activity widely open themselves to allegations that some
aspect of the governmental decisional process has unlawfully
occurred behind closed doors. Any aspect of the decisional
process—ranging from whether to conduct a meeting in the
first instance to the concept of terminating administrative
staff to the seemingly inane decision as to which government
officials will even make a motion to begin open public
discussion—is part of the official decisional process and must
be wide-open and advertised in advance to the public.
3. Under Florida law, there is no such thing as an “informal”
conference or “unofficial” caucus or pass-you-in-the-hallway
information gathering (or sharing) by two or more government
officials subject to the Sunshine Law which would thereby
remove such communication from the Sunshine Law’s ambit.
Indeed, such “innocuous” meetings have been held to be
illegal and nothing short of the unlawful crystallization of
secret decisions to a point just short of public discussion and
ceremonial acceptance. And whether done personally or
through surrogates (such as aide-to-aide), such meetings are
illegal under Florida’s Sunshine Law.
4. Any attempt to distinguish between a “formal,” “informal,”
“ministerial,” “informational gathering-only,” or “just a
listening” meeting between two or more government officials—
for purposes of determining whether the Sunshine Law
applies—is by itself alien to the law’s design, exposing it to the
very evasions which it was designed to prevent.
5. Because a violation of Florida’s Sunshine Law can be
investigated and charged as a crime, all of those law
enforcement and prosecutorial techniques, such as the
10
issuance of subpoenas for cell phone records is but a
signature away. In these cases, prosecutors easily gathered
data and produced it for the jury showing numerous texts,
emails, telephone conversations, and voicemails over a wide-
ranging period between all three city councilmembers. The
flow chart prepared by the prosecution and shown to the jury
highlighted the dates of the calls, to whom they were made,
the duration of the calls, and the overall sequence of
communications.
6. When in any doubt as to whether a meeting or
communication, either directly or indirectly between two or
more government officials may be illegal under the Sunshine
Law, the easy answer is: “LEAVE.” See City of Miami v. Berns,
245 So. 2d 38, 41 (Fla. 1971) (“The evil of closed door
operation of government without permitting public scrutiny
and participation is what the law seeks to prohibit. If a public
official is unable to know whether by any convening of two or
more officials he is violating the law, he should leave the
meeting forthwith.”).
7. Lying, under oath, about any matter that is material to an
alleged Sunshine Law violation is considered as an additional
crime of perjury and every individual lie constitutes an
individual statutory crime against each person with each
separate charge carrying a possible penalty of 1 year in the
county jail. Plus a $1000 fine. Plus substantial court costs.
Plus 12 months of probation. Per lie. And just as is the case
with the underlying Sunshine Law crime, no statutory
sentencing guidelines exist for this type of crime in Florida,
and thus consecutive jail sentences and consecutive
probationary periods are permitted and within the trial judge’s
unfettered discretion.
* * *
Not final until disposition of timely filed motion for rehearing.
11
