London v. State, 92-2048
Citation | 623 So.2d 527 |
Decision Date | 24 June 1993 |
Docket Number | No. 92-2048,92-2048 |
Parties | 18 Fla. L. Weekly D1840 Gregory LONDON, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Carl S. McGinnes, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., for appellee.
Affirmed.
ON MOTION FOR REHEARING AND MOTION FOR CERTIFICATION
Appellant, in his motions for rehearing and certification, requests that this court certify as a question of great public importance the following question certified in Seabrook v. State, 608 So.2d 560 (Fla. 1st DCA 1992), and Porter v. State, 609 So.2d 640 (Fla. 1st DCA 1992):
DOES SECTION 775.084, FLORIDA STATUTES (1989), DENY EITHER DUE PROCESS OR EQUAL PROTECTION OF LAW UNDER EITHER THE FLORIDA OR THE UNITED STATES CONSTITUTION; OR VIOLATE THE DOCTRINE OF SEPARATION OF POWERS AS SET FORTH IN THE FLORIDA CONSTITUTION?
Appellant states that the Florida Supreme Court has set oral argument on the constitutionality of the habitual felony offender statute.
We decline to certify the question as one of great public importance. Appellant has presented the same or substantially similar, due process, equal protection and separation of powers challenges to the habitual offender statute which have been rejected numerous times. Merriweather v. State, 609 So.2d 1299 (Fla.1992) (due process); Tillman v. State, 609 So.2d 1295 (Fla.1992) (due process); Ross v. State, 601 So.2d 1190 (Fla.1992) (due process); Turcotte v. State, 617 So.2d 1164 (Fla. 5th DCA 1993) (separation of powers); Murphy v. State, 616 So.2d 1100 (Fla. 1st DCA 1993) ( ); Brazil v. State, 604 So.2d 915 (Fla. 1st DCA 1992) ( ); Hodges v. State, 596 So.2d 481 (Fla. 1st DCA 1992) (, )quashed on other grounds, 616 So.2d 994 (Fla.1993) ( ); Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA 1991), approved, 616 So.2d 9 (Fla.1993) ( ); Wilson v. State, 574 So.2d 1170, 1171 (Fla. 1st DCA) (, )rev. denied, 583 So.2d 1038 (Fla.1991); Smith v. State, 567 So.2d 55 (Fla. 2d DCA 1990) (, )rev. denied, 576 So.2d 291 (Fla.1991); Arnold v. State, 566 So.2d 37 (Fla. 2d DCA 1990) (, )rev. denied, 576 So.2d 284 (Fla.1991); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA) (, )rev. denied, 576 So.2d 284 (Fla.1990); Roberts v. State, 559 So.2d 289 (Fla. 2d DCA 1990) (, )cause dismissed, 564 So.2d 488 (Fla.1990); King v. State, 557 So.2d 899 (Fla. 5th DCA) (, )rev. denied, 564 So.2d 1086 (1990).
The issue of separation of powers has also been resolved in Grimes v. State, 616 So.2d 996 (Fla. 1st DCA 1992), and Johnson v. State, 612 So.2d 689 (Fla. 1st DCA 1993), wherein this court held that the trial court was not required to classify or sentence a defendant with a criminal record as a habitual offender. Article II, Section 3, Florida Constitution, provides:
Branches of Government.--The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.
Because the trial court retains discretion in classifying and sentencing a defendant as a habitual offender, the separation of powers doctrine is not violated. Although the state attorney may suggest a defendant be classified as a habitual offender, only the judiciary decides whether or not to classify and sentence the defendant as a habitual offender. But see, Turcotte v. State, 617 So.2d 1164 (Fla. 5th DCA 1993) ( ); Toliver v. State, 605 So.2d 477 (Fla. 5th DCA 1992) (, )rev. denied, 618 So.2d 212 (Fla.1993); King v. State, * 597 So.2d 309 (Fla. 2d DCA 1992) (same), rev. denied, 602 So.2d 942 (Fla.1992). Accordingly, we deny appellant's motion for certification and for rehearing.
* This court in Grimes...
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...of judicial discretion supports a finding that the statute does not violate the separation of powers clause. See London v. State, 623 So.2d 527, 528 (Fla. 1st DCA 1993) (referring to habitual offender V SUBSTANTIVE DUE PROCESS Rollinson contends that the Act violates his substantive due pro......
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...final discretion to impose sentence, it does not infringe upon the constitutional division of responsibilities'"); London v. State, 623 So.2d 527, 528 (Fla. 1st DCA 1993) (rejecting a separation of powers challenge to the habitual felony offender statute "[b]ecause the trial court retains d......
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...Garwood, Asst. Atty. Gen., Tallahassee, for appellee. PER CURIAM. AFFIRMED. State v. Johnson, 616 So.2d 1 (Fla.1993); London v. State, 623 So.2d 527 (Fla. 1st DCA 1993); Barber v. State, 564 So.2d 1169 (Fla. 1st DCA), rev. denied, 576 So.2d 284 (Fla.1990); Arnold v. State, 566 So.2d 37 (Fla......
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