Levan v. State

Full title: LEROY RICARDO LEVAN, Appellant, vs. THE STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Third District

Date published: Sep 13, 1999

741 So. 2d 611 (Fla. Dist. Ct. App. 1999)

Opinion

No. 98-1130.

Opinion filed September 13, 1999.

An Appeal from the Circuit Court for Miami-Dade County, Barbara S. Levenson, Judge, L.T. No. 96-15641.

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, and Suzanne M. Froix, Assistant Public Defenders, for appellant.

Robert A. Butterworth, Attorney General, and Barbara A. Zappi, Assistant Attorney General (Fort Lauderdale), for appellee.

BEFORE: GERSTEN, GREEN, and SORONDO, JJ.

PER CURIAM.

We affirm the defendant's conviction for unlawful possession of a firearm by a violent career criminal and reject, under Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997), the defendant's constitutional challenge to his sentence pursuant to Chapter 95-182, Laws of Florida. We certify conflict with Thompson v. State, 708 So.2d 315 (Fla. 2d DCA), cert. granted, 717 So.2d 538 (Fla. 1998) on the defendant's constitutional challenge.

Affirmed; conflict certified.

GERSTEN and SORONDO, JJ., concur.

GREEN, J. (specially concurring in part).

While I agree with the appellant's conviction for unlawful possession of a firearm, I write separately to address the appellant's sentence entered pursuant to the "Officer Evelyn Gort and all Fallen Officers Career Criminal Act of 1995," Chapter 95-182, Laws of Florida. As I have previously written in my special concurring opinions in Williams v. State, 731 So.2d 99 (Fla. 3d DCA 1999); Valdes v. State, 728 So.2d 1225 (Fla. 3d DCA 1999); John v. State, 724 So.2d 708 (Fla. 3d DCA 1999); English v. State, 721 So.2d 1250 (Fla. 3d DCA 1998); and Elliard v. State, 714 So.2d 1218 (Fla. 3d DCA), review granted, 728 So.2d 201 (Fla. 1998), I believe that this act, as written, is unconstitutional because it violates the single subject requirement of article III, section 5 of the Florida Constitution for the reasons set forth in the Second District's opinion inThompson v. State, 708 So.2d 315 (Fla. 2d DCA), review granted, 717 So.2d 538 (Fla. 1998). Therefore, I believe that this court should recede from its opinion in Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997), and its progeny¹, reverse the appellant's sentence and remand for resentencing.

1 See Lee v. State, 24 Fla. L. Weekly D1697 (Fla. 3d DCA July 21, 1999); Williams, 731 So.2d at 99; Valdes, 728 So.2d at 1225; McGowan v. State, 725 So.2d 470 (Fla. 3d DCA 1999); Russell v. State, 725 So.2d 1274 (Fla. 3d DCA 1999); Waldo v. State, 728 So.2d 280 (Fla. 3d DCA 1999); Robbins v. State, 730 So.2d 313 (Fla. 3d DCA 1999); Gonzalez v. State, 724 So.2d 1271 (Fla. 3d DCA 1999); Marshall v. State, 723 So.2d 923 (Fla. 3d DCA 1999);English, 721 So.2d at 1250; Spann v. State, 719 So.2d 1031 (Fla. 3d DCA 1998); Tillman v. State, 718 So.2d 944 (Fla. 3d DCA 1998), review granted, 727 So.2d 914 (Fla. 1999); Cyrus v. State, 717 So.2d 619 (Fla. 3d DCA 1998); Almanza v. State, 716 So.2d 351 (Fla. 3d DCA 1998); Elliard, 714 So.2d at 1218; Holloway v. State, 712 So.2d 439 (Fla. 3d DCA), review granted, 727 So.2d 906 (Fla. 1998); Dupree v. State, 711 So.2d 647 (Fla. 3d DCA 1998); Linder v. State, 711 So.2d 1340 (Fla. 3d DCA 1998).