Heath v. State, 87-1269
Decision Date | 21 July 1988 |
Docket Number | No. 87-1269,87-1269 |
Parties | 13 Fla. L. Weekly 2325 Albert HEATH, a/k/a James Albert Heath, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Duval County; R. Hudson Olliff, judge.
Michael E. Allen, Public Defender, David A. Davis, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
REVERSED. Hall v. State, 517 So.2d 678 (Fla.1988).
On appeal, appellant contended that he should not have been adjudged guilty of both armed robbery and using a firearm during the commission of the same robbery. This court agreed and issued its "Per Curiam" reversal, filed July 21, 1988. In its motion for rehearing, appellee State of Florida urges that this court was in error in overlooking recent amendments to section 775.021(4), Florida Statutes, contained in Chapter 88-131(7), Laws of Florida (1988). The state contends that the amendment overrules Carawan v. State, 515 So.2d 161 (Fla.1987), and Hall v. State, 517 So.2d 678 (Fla.1988) ( ).
We find no merit in these contentions. First, it is a function of the judiciary to declare what the law is. 10 Fla.Jur.2d, Constitutional Law, § 166. Although legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling, it does not follow that court decisions interpreting a statute are rendered inapplicable by a subsequent amendment to the statute. Instead, the nature and effect of the court decisions and the statutory amendment must be examined to determine what law may be applicable after the amendment. See, 13 Fla.Jur.2d, Courts and Judges, § 140.
Secondly, it is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed. See, 14 Fla.Jur.2d, Criminal Law, § 18, and cases therein cited; Article 10, § 9, Florida Constitution.
Finally, the amended statute, if given retroactive effect as urged by the state, would result in additional punishment for appellant, thus running afoul of the ex post facto clauses of the state and federal constitutions. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) ( ); Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) ( ); Article I, Section 10, United States Constitution; Article I, Section 10, Florida Constitution; Booker v. State, 514 So.2d 1079 (Fla.1987) (...
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