Jones v. State

• Decision Date: 26 March 2004
• Docket Number: No. 5D01-2775.,5D01-2775.
• Citation: 872 So.2d 938
• Parties: Richard JONES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

872 So.2d 938

Richard JONES, Appellant, v. STATE of Florida, Appellee.

No. 5D01-2775.

District Court of Appeal of Florida, Fifth District.

March 26, 2004.

James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman and Anthony J. Golden, Assistant Attorneys General, Daytona Beach, for Appellee.

ON MOTION FOR REHEARING EN BANC

SAWAYA, C.J.

The motion for rehearing en banc filed by the appellant, Richard Jones, is hereby granted. We withdraw our previously issued opinion and substitute the following in its place. When he was originally sentenced, Jones received mandatory minimum sentences for two counts of aggravated battery on a law enforcement officer. These offenses were committed in February 2000, before the effective date of Chapter 02-209, Laws of Florida, which provides for the imposition of a mandatory minimum sentence for each of the offenses Jones committed. The issue in this appeal is whether the provisions of chapter 02-209 should be retroactively applied. Decisions from this court originally resolved this issue by holding that the statute may be applied retroactively. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002)

(on grant of rehearing); see also Carlson v. State, 27 Fla. L. Weekly D2162 (Fla. 5th DCA Oct.4, 2002).¹ We believe it is time to acknowledge the error of that ruling. Accordingly, Jones' sentences are reversed and this case is remanded for resentencing pursuant to section 784.07(2)(c), Florida Statutes (1997), which does not provide for imposition of a mandatory minimum prison sentence. We will now explain why we have come to the conclusion that our original ruling regarding the retroactive application of chapter 02-209 is erroneous.

Chapter 02-209, Laws of Florida, has its genesis in the unconstitutional enactment of Chapter 99-188, which provided for the imposition of mandatory minimum prison sentences for certain offenses. Specifically, section four of chapter 99-188 purported to amend section 784.07(2)(c), Florida Statutes (1997), to require imposition of a mandatory minimum prison term for the offense of aggravated assault on a law enforcement officer. However, when this court decided Hersey, we agreed with the holding in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), that chapter 99-188 was unconstitutional because it violated the single-subject rule of the Florida Constitution.² We continue to adhere to that part of our original decision in Hersey that, based on Taylor, Chapter 99-188, Laws of Florida, was unconstitutionally enacted in violation of article III, section 6 of the Florida Constitution. Had this been the end of things, there would have been no question but that Jones' sentences for the two counts of aggravated assault on a law enforcement officer could not include a mandatory minimum provision. However, it was not.

As observed by the court in Green v. State, 839 So.2d 748 (Fla. 2d DCA),review granted by Franklin v. State, 854 So.2d 659 (Fla.2003), the Legislature responded to Hersey and Taylor in 2002 by enacting chapters 02-208, 02-209, 02-210, 02-211, and 02-212, Laws of Florida, to reenact the provisions originally contained in chapter 99-188, but in such a way as not to run afoul of the single-subject rule. The 2002 enactments were expressly made retroactive to July 1, 1999. Of specific importance to the instant case is Chapter 02-209, section two's reenactment of section four of Chapter 99-188, which amended section 784.07(2)(c) to require imposition of mandatory minimum prison terms for the offense of aggravated assault on a law enforcement officer. Because of the retroactive application of the reenactment, a mandatory minimum provision was included on Jones' sentence for aggravated assault on a law enforcement officer. We now hold that the retroactive application of Chapter 02-209 is an impermissible violation of the Ex Post Facto Clauses of the federal and Florida constitutions that entitles Jones to the relief he requests. Hence, we now recede from that part of Hersey to the contrary.

To say there is a lack of consistency in Florida law regarding whether chapter 99-188 was unconstitutional and whether the subsequent legislative reenactments may be applied retroactively is, perhaps, a gross understatement. As to the issue whether Chapter 99-188 violates the single-subject requirement, the First, Third and Fourth District Courts of Appeal say it does not. Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003); Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003). The Second District Court in Taylor, on the other hand, says that it does and as we have previously mentioned, we continue to adhere to that part of our prior decision in Hersey regarding this issue. Moreover, among those courts that say it does, there was disagreement whether the reenactment legislation may be applied retroactively. The Second District Court says it may not. Green (holding that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions). This court originally said it may be retroactively applied. Hersey. The Fourth District Court once followed this court. Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002) (citing Hersey). However, upon further reflection, it receded from its prior opinions that relied on this court's decision in Hersey and held that the sentencing provisions of chapter 99-188 may not be retroactively applied. Hernandez-Molina. We do likewise and eliminate our previous disagreement with Green regarding this issue.

A brief history of the procedural background of the instant case will be helpful. When this case first made its way to this court, the original panel decision, issued on September 27, 2002, followed the decision in Taylor and held that Chapter 99-188 violated the single-subject requirement and remanded the case for resentencing. Almost at the same time, this court rendered its decision in Hersey, which held in accordance with the decision in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), that "the enactment of chapter 02-210, Laws of Florida, cured chapter 99-188's constitutional infirmity" and "applie[d] retroactively." Hersey, 831 So.2d at 680. Subsequently, the original panel's decision in the instant case was withdrawn and, on the authority of Hersey, another opinion was rendered that affirmed the sentence. Jones v. State, 27 Fla. L. Weekly D2377 (Fla. 5th DCA Nov.1, 2002) (Jones II). Jones moved to have this court reconsider the decision in Jones II en banc, and a majority of the judges on this court decided to grant that request. So now we review Jones II en banc and determine, based on the Ex Post Facto Clauses of the federal and Florida constitutions, that chapter 02-209, Laws of Florida, should not be applied retroactively.

The problem with application of Dobbert to justify retroactive application of the reenacted legislation stems from the Florida Supreme Court's pronouncement in Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000), that a single-subject rule violation by the Legislature renders an enactment void. Like the court in Green, we have difficulty accepting the notion that the Dobbert "operative fact" rationale, which essentially provides that the very existence of an unconstitutional statute provides notice to the defendant of the penalties that the State would seek to impose upon conviction, applies to a void enactment such as chapter 99-188, Laws of Florida. The factual background in Dobbert clearly shows why the notice rationale is inapplicable to statutory reenactments of original legislation that have been found to be unconstitutional based on single-subject violations. In Dobbert, the United States Supreme Court was called upon to review a death sentence that Ernest Dobbert had received for first-degree murder. At the time Ernest Dobbert committed the murder, Florida law required imposition of the death penalty unless the jury recommended a life sentence. Unfortunately for Ernest Dobbert, the jury did not see fit to show him mercy, and the trial court sentenced him to death. As Dobbert explains, after Ernest Dobbert committed the murder, but before he was sentenced, the Court rendered its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which struck down Georgia's death penalty statute because it violated substantive portions of the United States Constitution. Relying on Furman, the Florida Supreme Court rendered its decision in Donaldson v. Sack, 265 So.2d 499 (Fla.1972), which recognized that pursuant to Furman, the death sentence was eliminated under Florida's then existing statutory scheme. Very shortly after Donaldson was rendered, the Florida Legislature in 1972 enacted Chapter 72 724, Laws of Florida, which amended sections 775.082 and 921.141, Florida Statutes. In essence, the new legislation created a new procedure for imposition of the death penalty that required the jury to hear evidence of aggravating and mitigating circumstances and then make a recommendation of either death or life to the trial judge, who would then bear the ultimate responsibility, after appropriate consideration of the jury's recommendation, to impose the sentence in the case based on his or her written findings. The constitutionality of these new procedures was upheld by the Florida Supreme Court in State v. Dixon, 283 So.2d 1 (Fla.1973),cert. denied by Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), and by the United States Supreme Court in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

What is significant about the historical...