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State v. Tocco

Supreme Court of Arizona

February 23, 1988

No. CR-87-0032-PR

Opinion

 [*117]   [**875]  Joseph Frank Tocco was named as defendant in a 13-count amended information. The amended information included one count of leading organized crime in violation of A.R.S. § 13-2308 and various other counts. 1

 [***2]  The trial court concluded that prior to its 1985 amendment, A.R.S. § 13-2308 was unconstitutionally vague and granted Tocco's motion to dismiss.  The trial court's ruling was based upon Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The state appealed the trial court's ruling and the Court of Appeals concluded that A.R.S. § 13-2308 was not unconstitutionally vague and reversed the trial court.  State v. Tocco, 156 Ariz. 110, 750 P.2d 868 (App.1986). Tocco now petitions this court for review. This court has jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 12-102, 13-4031 and -4033. For the reasons set forth below, we affirm the decision of the Court of Appeals.

 [*118]   [**876]  ISSUES ON APPEAL

Tocco contends that A.R.S. § 13-2308 is unconstitutionally vague because (1) prior to the 1985 amendment, A.R.S. § 13-2308(A)(1) contained insufficient scienter requirement, and (2) the definition of criminal syndicate is imprecise.

SCIENTER REQUIREMENT

] A legislative enactment is unconstitutionally vague if it fails to give persons of ordinary intelligence reasonable opportunity [***3]  to know what is prohibited and fails to provide explicit standards for those who apply it. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-228 (1972); Papachristou v. City of Jacksonville, 405 U.S. 156, 163, 92 S.Ct. 839, 843, 31 L.Ed.2d 110, 115 (1972).

When Tocco allegedly violated ] A.R.S. § 13-2308(A)(1), that portion of the statute provided:

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156 Ariz. 116 *; 750 P.2d 874 **; 1988 Ariz. LEXIS 40 ***; 2 Ariz. Adv. Rep. 5

STATE of Arizona, Appellant, v. Joseph Frank TOCCO, Appellee

Prior History:  [***1]   Appeal from the Superior Court of Maricopa County, The Honorable Robert S. Hertzberg, Judge.

Opinion of the Court of Appeals, Division One,    Ariz.   ,    P.2d    (1987) Approved as Supplemented

Disposition: REVERSED AND REMANDED.

CORE TERMS

syndicate, unconstitutionally vague, organized crime, scienter

Governments, Legislation, Overbreadth, Vagueness, Criminal Law & Procedure, Criminal Offenses, Racketeering, General Overview, Acts & Mental States, Mens Rea, Specific Intent, Purpose, Civil Procedure, Justiciability, Standing, Constitutional Law, Fundamental Freedoms, Judicial & Legislative Restraints, Standing, Preliminary Considerations, Case or Controversy, Controlled Substances, Continuing Criminal Enterprises, Elements, Interpretation, State & Territorial Governments, Legislatures, Appeals, Reversible Error, Charging Instruments