John v. State

Full title: JOHN JOHN, Appellant, vs. THE STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Third District

Date published: Mar 24, 1999

728 So. 2d 824 (Fla. Dist. Ct. App. 1999)

Opinion

No. 98-627

Opinion filed March 24, 1999. JANUARY TERM, A.D. 1999

An Appeal from the Circuit Court for Dade County, Stanford Blake, Judge, L.T. Case No. 96-20400.

Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Dominique T. Suite-Brown, Assistant Attorney General, for appellee.

Before GREEN, SHEVIN and SORONDO, JJ.

PER CURIAM.

Affirmed. Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997). We certify direct conflict with Thompson v. State, 708 So.2d 315 (Fla. 2d DCA), review granted, 717 So.2d 538 (Fla. 1998).

SHEVIN and SORONDO, JJ., concur.

GREEN, J. (specially concurring in part)

I agree with the majority that the appellant has demonstrated no reversible error with regards to his conviction for attempted burglary of an unoccupied dwelling; therefore, his conviction should be affirmed. I write separately, however, to address his resultant sentence made pursuant to the "Officer Evelyn Gort and all Fallen Officers Career Criminal Act of 1995," Chapter 95-192, Laws of Florida. As I have previously indicated in my special concurring opinions in English v. State, 24 Fla. L. Weekly D104, D105 (Fla. 3d DCA Dec. 23, 1998), and Elliard v. State, 714 So.2d 1218, 1218-19 (Fla. 3d DCA 1998), I believe that this act is unconstitutional as violative of the single subject requirement of article III, section 5 of the Florida Constitution for the reasons set forth in the opinion of our sister court in Thompson v. State, 708 So.2d 315 (Fla. 2d DCA), review granted, 717 So.2d 538 (Fla. 1998). I would therefore prefer to recede from this court's decision in Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997), review granted, no. 93,851 (Fla. Oct. 1, 1998) and its progeny¹ and reverse and remand this cause for resentencing.

1 English, 24 Fla. L. Weekly at D104; Spann v. State, 719 So.2d 1031 (Fla. 3d DCA 1998); Cyrus v. State, 717 So.2d 619 (Fla. 3d DCA 1998); Almanza v. State, 716 So.2d 351 (Fla. 3d DCA 1998); Holloway v. State, 712 So.2d 439 (Fla. 3d DCA 1998); Dupree v. State, 711 So.2d 647 (Fla. 3d DCA 1998).