Green v. State, 2D02-2430.

• Decision Date: 31 January 2003
• Docket Number: No. 2D02-2430.,2D02-2430.
• Citation: 839 So.2d 748
• Parties: Cedric T. GREEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

839 So.2d 748

Cedric T. GREEN, Appellant, v. STATE of Florida, Appellee.

No. 2D02-2430.

District Court of Appeal of Florida, Second District.

January 31, 2003.

Rehearing Denied March 7, 2003.

NORTHCUTT, Judge.

The issue here is whether the legislature, when reenacting the criminal punishments contained in chapter 99-188, Laws of Florida, after it was stricken on constitutional single subject grounds, could require the reenacted punishments to be applied retroactively to the effective date of the earlier law. We hold that it could not.

Cedric Green was adjudicated guilty of violating section 893.135(1)(b)(1)(a), Florida Statutes (1999), by trafficking in more than 28 but less than 200 grams of cocaine. He committed this crime in April 2000. In September 2000, the circuit court sentenced him to 42.9 months' imprisonment, including the three-year minimum mandatory term required under the statute. After Green was sentenced, this court issued Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), declaring chapter 99-188 unconstitutional because it violated the single subject requirement. Section 9 of that chapter had amended section 893.135 to add the minimum mandatory prison term imposed on Green.

The single subject rule provides, in pertinent part, that "[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title." Art. III, § 6, Fla. Const. Generally, single subject defects are cured prospectively by the legislature's customary biennial reenactment of the offending laws. See Salters v. State, 758 So.2d 667, 671 (Fla.2000)

. But in 2001 the legislature did not pass a biennial reenactment of the 1999 statutes. See Taylor, 818 So.2d at 550 n. 4. Rather, in 2002 it responded to Taylor by enacting chapters 02-208, 02-209, 02-210, 02-211, and 02-212, Laws of Florida, which separately reenacted the sundry provisions of chapter 99-188. See, e.g., Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla.1991) (noting that the legislature can cure a single subject violation by separating the disparate provisions into distinct bills and individually reenacting them into law). Significantly, each of these new chapters stated that its provisions "shall be applied retroactively to July 1, 1999, or as soon thereafter as the Constitution of the State of Florida and the Constitution of the United States may permit." Chs. 02-208, § 2 at 1426; 02-209, § 3 at 1429; 02-210, § 3 at 1442; 02-211, § 3 at 1452; 02-212, § 4 at 1499, Laws of Fla. Our research suggests that this was the first time the legislature has undertaken a retroactive reenactment of criminal laws after they were found unconstitutional because of a single subject rule violation.

Against this backdrop, on May 1, 2002, Green filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, asserting that because Taylor had stricken the law that mandated a minimum sentence for his crime, and because he committed the crime during the window period for challenges on that basis, he should be resentenced under the 1997 statutes.¹ Green's argument was amply supported by precedent. Traditionally, when a defendant has been sentenced under a statute that is declared unconstitutional on single subject grounds, he is entitled to be resentenced under the valid law in effect on the date of his offense. See Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000)

. In Green's case, however, the circuit court noted that the legislature had cured the single subject rule violation by reenacting the various provisions of chapter 99-188 retroactively to July 1, 1999. Accordingly, the circuit court held that Green was not entitled to relief.

Since the circuit court issued its order, other courts have ruled likewise. The Fifth District, in Carlson v. State, 27 Fla. L. Weekly D2162, ___ So.2d ___, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), and Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) (on grant of rehearing), has held that the curative provisions of chapter 02-210² apply retroactively. The Fourth District, too, appears to hold this view. In two cases decided without opinions, it has cited Hersey. Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002); Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).

We disagree with those decisions. We hold that chapter 02-212 cannot be applied retroactively, for to do so would violate the Ex Post Facto Clauses of the United States and the Florida Constitutions. U.S. Const. art. 1, § 10; art. I, § 10, Fla. Const.³ Therefore, we reverse Green's sentence, and we remand with directions to resentence him pursuant to section 893.135(1)(b)(1)(a), Florida Statutes (1997).

For a law to run afoul of the ex post facto prohibition, two elements must coincide: "first, the law `must be retrospective, that is, it must apply to events occurring before its enactment' and second, `it must disadvantage the offender affected by it.'" Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). It is beyond argument that the retroactivity portion of chapter 02-212 is retrospective. The act also disadvantages Green. But for the retroactivity provision of chapter 02-212, Green would be entitled to resentencing under the valid law in effect on the date of his offense. See Heggs, 759 So.2d at 630-31

. By virtue of this court's decision in Taylor, the valid law in effect on the date of Green's crime was section 893.135(1)(b)(1)(a), Florida Statutes (1997). That statute did not prescribe a three-year minimum mandatory prison term for his offense. Thus, Green is disadvantaged by the minimum mandatory term for his crime included in chapter 02-212.

Our analysis does not end there, however. As mentioned, the Fifth District has upheld the retroactivity provision against an ex post facto challenge. That court discerned that its ruling was supported by Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), in which the Supreme Court held that applying the 1972 Florida death penalty statute to crimes committed before its enactment did not violate the Ex Post Facto Clause. Carlson, 27 Fla. L. Weekly at D2162-63, ___ So.2d at___ _ ___. But we are persuaded that the Dobbert reasoning does not apply here.

Dobbert had its genesis in June 1972, when the Supreme Court struck down the Georgia death penalty statute as violative of the Eighth and Fourteenth Amendments to the United States Constitution. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). In July 1972, the Florida Supreme Court held that Florida's 1971 death penalty statute was inconsistent with Furman. Donaldson v. Sack, 265 So.2d 499 (Fla.1972). Late in 1972, the Florida Legislature enacted a new death penalty statute. Ch. 72-724, Laws of Fla. Dobbert, 432 U.S. at 288, 97 S.Ct. 2290.

Dobbert committed two murders between December 1971 and April 1972, while the 1971 death penalty statute was in effect. He was tried, convicted, and sentenced to death for these crimes sometime after the effective date of the 1972 statute. Id. at 289, 97 S.Ct. 2290. Dobbert raised several ex post facto challenges to his sentence. Pertinent for our purposes is his claim that because the 1971 statute had been declared unconstitutional in Donaldson, no death penalty statute existed at the time of his crimes, and therefore he could not be sentenced to death. The Supreme Court found that the Ex Post Facto Clause did not bar the retroactive application of the 1972 death penalty statute to Dobbert's crimes for two reasons. First, the Court noted that the changes in the death penalty statute between the time of the murder and the time of the trial were procedural and "on the whole ameliorative," and hence there was no ex post facto violation. Id. at 293-94, 97 S.Ct. 2290. Second, the Court observed that the existence of the earlier statute at the time of the murder served as an "operative fact" to warn Dobbert of the penalty Florida would seek to impose on him if he were convicted of first-degree murder. This, the Court wrote, was sufficient compliance with the ex post facto provision of the Constitution, notwithstanding the subsequent invalidation of the statute. Id. at 298, 97 S.Ct. 2290.

The Fifth District founded its decision in Carlson on this second, "operative fact," theory, thus holding that the Florida legislature's enactment of chapter 02-210 applied retroactively to cure a portion of section 893.135(1)(a)(1) that had been declared unconstitutional in Taylor.⁴ "The fact that the State ultimately corrected the defect in the legislation to require exactly that which it had invalidly required earlier and then mandated a retroactive application of the amendment does not, according to Dobbert, violate the ex post facto provision of the United States Constitution." 27 Fla. L. Weekly at D2162-63, ___ So.2d at___ _ ___.

In our view, that overbroad characterization of Dobbert actually illustrates a critical distinction between the issue in Dobbert and the one before us: Dobbert did not address the effect of defective legislation. Rather, its observations about the effect of Florida's 1971 death penalty law were in the context of a validly enacted statute that contained unconstitutional provisions. In contrast to Florida's 1971 death penalty statute, chapter 99-188 was not validly enacted. Florida law draws a distinction between laws that are unconstitutional because they were illegally enacted, as in Taylor, and ones that were validly enacted but later found to be unconstitutional, like the death penalty statute in Dobbert. The former are void, while the latter are merely voidable. See B.H. v. State, 645 So.2d 987, 995 (Fla. 1994)

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When the enactment of a law fails to comport with constitutional procedural mandates, the law is illegally enacted and is thus void ab initio, as opposed to being merely...