Opinion
No. 42103.
May 17, 1972.
Appeal from the Court of Record for Broward County, John G. Ferris, J.
Jack R. Nageley, and Harvey S. Swickle, Miami Beach, for appellant.
Robert L. Shevin, Atty. Gen., and William W. Herring, Asst. Atty. Gen., for appellee.
This appeal transferred to us from the Fourth District Court of Appeal seeks review of a trial court's order which inherently held Fla. Stat. § 797.01, F.S.A., concerning abortions, constitutional. We have jurisdiction under Fla. Const. art. V, § 4(2), F.S.A.; Evans v. Carroll, 104 So.2d 375 (Fla. 1958); and Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla. 1959).
Appellant has been adjudged guilty of attempted abortion and sentenced to one year in the county jail. His appeal contesting the validity of Fla. Stat. § 797.01, F.S.A. was pending when this Court rendered its opinion in State v. Barquet, 262 So.2d 431, filed February 14, 1972. Barquet unequivocally declared Fla. Stat. § 797.01, F.S.A. unconstitutional. In the opinion Mr. Justice Adkins foresaw and discussed other similar pending cases, saying (p. 438):
"The holding in this decision is available to those defendants who have . . sought timely review by appeal from an adjudication of guilt, as of the filing date of this opinion."
Accordingly, the judgment of the trial court is reversed and the cause remanded with instructions to enter an appropriate order releasing and discharging appellant.
It is so ordered.
ROBERTS, C.J., and ERVIN, CARLTON and ADKINS, JJ., concur.