Opinion
No. 58109.
May 7, 1981.
Appeal from Circuit Court, Dade County; N. Joseph Durant, Jr., Judge.
Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., Miami, for appellant.
Geoffrey C. Fleck of Weiner, Robbins, Tunkey Ross, Miami, for appellee.
This cause is before us on direct appeal from an order of the trial court granting appellee's motion to dismiss and holding section 893.135, Florida Statutes (1979), unconstitutional. Art. V, § 3(b)(1), Florida Constitution (1972).
The State asserts that the trial court's order in this case differs in no material respect from the trial court's order which we reversed in State v. Benitez, 395 So.2d 514 (Fla. 1981). Appellee, in his response to the State's brief, states:
1. By the decision in State v. Benitez, 395 So.2d 514 (Fla. 1981), this Court has decided the constitutional issues presented by this case. The Appellee, therefore, will file no brief.
Accordingly, the order of the Circuit Court of the Eleventh Judicial Circuit granting appellee's motion to dismiss and declaring section 893.135, Florida Statutes (1979), unconstitutional is reversed, and the cause is remanded for further proceedings not inconsistent with State v. Benitez.
It is so ordered.
SUNDBERG, C.J., and ADKINS, BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ., concur.