Funchess v. State

Full title: MICHAEL ANDRE FUNCHESS, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court: District Court of Appeal of Florida, First District

Date published: May 27, 1992

597 So. 2d 985 (Fla. Dist. Ct. App. 1992)

Opinion

No. 91-3154.

May 27, 1992.

An Appeal from the Circuit Court for Duval County; John Southwood, Judge.

Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Sara D. Baggett, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant's constitutional challenge of his habitual violent felony offender sentence is AFFIRMED. However pursuant to Fla.R.App.P. 9.030(a)(2)(v), we certify the following questions to be of great public importance:

1. DOES IT VIOLATE A DEFENDANT'S SUBSTANTIVE DUE PROCESS RIGHTS WHEN HE IS CLASSIFIED AS A VIOLENT FELONY OFFENDER PURSUANT TO SECTION 775.084, FLORIDA STATUTES (1989), AND THEREBY SUBJECTED TO AN EXTENDED TERM OF IMPRISONMENT, IF HE HAS BEEN CONVICTED OF AN ENUMERATED VIOLENT FELONY WITHIN THE PREVIOUS FIVE YEARS, EVEN THOUGH HIS PRESENT OFFENSE IS A NONVIOLENT FELONY?

2. DOES SECTION 775.084(1)(b), FLORIDA STATUTES (1989), VIOLATE THE CONSTITUTIONAL PROTECTION AGAINST DOUBLE JEOPARDY BY INCREASING A DEFENDANT'S PUNISHMENT DUE TO THE NATURE OF A PRIOR OFFENSE?

See Hall v. State, 588 So.2d 1089 (Fla. 1st DCA 1991), pet. for rev. pending, no. 79,237; Tillman v. State, 586 So.2d 1269 (Fla. 1st DCA 1991), pet. for rev. pending, no. 78,715; Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA 1991), pet. for rev. pending, no. 78,613.

AFFIRMED.

ZEHMER and WEBSTER, JJ., concur.