Potts v. State, 4-86-1073
| Decision Date | 30 December 1987 |
| Docket Number | No. 4-86-1073,4-86-1073 |
| Citation | 526 So.2d 104,13 Fla. L. Weekly 78 |
| Parties | 13 Fla. L. Weekly 78 Willie POTTS, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Lee Rosenthal, Asst. Atty. Gen., West Palm Beach, for appellee.
Willie Potts, Jr., was convicted of violation of section 790.07(2), Florida Statutes (1985), which provides:
Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084.
(Emphasis added.) He asserts, on appeal, the unconstitutionality of that statute on due process grounds.
In considering whether or not a statute violates substantive due process, the basic test is whether the state can justify the infringement of its legislative activity upon personal rights and liberties. State v. Walker, 444 So.2d 1137 (Fla. 2d DCA), affirmed, 461 So.2d 108 (Fla.1984). The statute must bear a reasonable relationship to the legislative objective and must not be arbitrary. Id. If there is a legitimate state interest which the legislation aims to effect, and if the legislation is a reasonably related means to achieve the intended end, it will be upheld. Id.
Here, the state contends that the objective of the disputed statute is to protect the health and safety of the public. The state also contends that it is not unreasonable to presume that persons "under indictment" present a greater risk to society than other citizens; therefore the statute bears a reasonable relationship to the legislative objective.
If an individual is presumed innocent until proven guilty, however, how can it validly be assumed that individuals "under indictment" necessarily present a greater risk to society than other citizens? There are, of course, provisions for deprivation of liberty while pending trial in certain cases. See § 907.041, Fla.Stat. (1985); Fla.R.Crim.P. 3.132. But in those instances, unlike here, a defendant has an opportunity to be heard on the matter of his potential threat to society.
Carrying a concealed weapon while not under indictment, prohibited by section 790.01(1), is a first-degree misdemeanor, punishable by a maximum of one year in prison, whereas the instant offense is a second-degree felony, punishable by fifteen years in prison. The instant statute, therefore, in effect criminalizes the activity of "being under indictment" and punishes that offense by up to fourteen years' imprisonment. Is an individual "under indictment" who carries a concealed weapon necessarily more dangerous than an individual NOT "under indictment" who carries a concealed weapon? What if an individual is convicted under the instant statute and is sentenced to fifteen years' imprisonment and then is later found not guilty of the charges for which he was "under indictment?"
Although we agree with the state that there is a legitimate interest in protecting the health and safety of the public, we do not agree that criminalizing the status of being "under indictment"...
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