R.D.P. v. State

Full title: R.D.P., JR., Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Second District

Date published: Jun 2, 1999

735 So. 2d 551 (Fla. Dist. Ct. App. 1999)

Opinion

No. 97-00720

Opinion filed June 2, 1999.

Appeal from the Circuit Court for Polk County; Susan W. Roberts, Judge.

James Marion Moorman, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

R.D.P. appeals his sentences for petit theft and criminal mischief. He contends that his sentences were improperly enhanced pursuant to section 874.04, Florida Statutes (Supp. 1996), on the ground that he is a member of a gang. He argues that the trial court improperly took judicial notice that the gang of which he was allegedly a member was in fact a gang and that the statute allowing for the enhancement is unconstitutional.

We need not reach the issue regarding the taking of judicial notice because we agree with the Fifth District that section 874.04 is unconstitutional. See O.C. v. State, 722 So.2d 839 (Fla.5th DCA 1998).

Accordingly, we affirm R.D.P.'s adjudications but reverse R.D.P.'s sentences and remand for resentencing without the enhancement provided for in section 874.04.

Reversed and remanded for resentencing.

THREADGILL, A.C.J., and GREEN, JJ., Concur.