Russo v. State, 71--628
| Citation | 270 So.2d 428 |
| Decision Date | 19 December 1972 |
| Docket Number | No. 71--628,71--628 |
| Parties | Frank RUSSO, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Ray Sandstrom of Sandstrom & Hodge, Fort Lauderdale, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Thomas L. Brown, Asst. Atty. Gen., West Palm Beach, for appellee.
Being convicted and sentenced for aggravated assault, the defendant appeals. We reverse and remand for a new trial.
After completion of trial court proceedings, F.S. 856.02, Laws of 1969, F.S.A., and the Jacksonville vagrancy ordinance were declared unconstitutional. Smith v. State of Florida (1972), 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122; Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. The defendant here was arrested under authority of Section 17--6, Code of the City of Plantation, Florida, the provisions of which, to all intents and purposes, are identical to the mentioned statute and ordinance. Thus, we summarily hold that Section 17--6, Code of the City of Plantation, is unconstitutional under authority of Papachristou and Smith, supra. It thus follows, as asserted in defendant's appellate point I, that defendant's arrest was unlawful. (We further note under the facts of this case--and it is not contended otherwise--that the arresting officer was not justified or authorized to arrest the defendant without a warrant under F.S. 901.15, Laws of 1969, F.S.A., or otherwise.)
The state simply contends that the Papachristou and Smith cases should not be applied here because to do so would be to give a retroactive effect. This position lacks merit. A statute duly declared unconstitutional is inoperative from the time of its enactment and not only and simply from the time of the decision. State ex rel. Nuveen v. Greer, Fla.1924, 88 Fla. 249, 102 So. 739; Amos v. Mathews, Fla.1930, 99 Fla. 1, 126 So. 308.
With an unlawful arrest as a background, we come now to the defendant's appellate point II. It directs attention to the trial court's refusal to suppress certain fingerprints and statements made to the police officials. We hold that they should have been suppressed and it was error not to do so. More exactly, the fingerprints should have been suppressed under authority of Davis v. Mississippi (1969), 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. The statements should have been suppressed upon different grounds. The defendant was not afforded the cautions...
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...721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), but resembles very closely Sears v. State, supra, State v. Neri, supra and Russo v. State, 270 So.2d 428 (Fla.App.4th, 1972). ADKINS, J., 1 I agree with the majority that the equal protection claim lacks merit. There is a substantial question wheth......
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State v. Mayhew, 43575
...that defendant's arrest was unlawful and he can not be held criminally liable for resisting an unlawful arrest. See, Russo v. State, 270 So.2d 428 (Fla.4th DCA 1972); Roberson v. State, 43 Fla. 166, 29 So. 535 (1901); Waller v. City of St. Petersburg, 245 So.2d 685 (Fla.2d DCA 1971); 3 Fla.......
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...is inoperative from the time of its enactment, not only and simply from the time of the court's decision. Russo v. State, 270 So.2d 428 (Fla. 4th DCA 1972). In determining whether a statute is void ab initio, however, this Court seemingly has distinguished between the constitutional authori......
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Canney v. State
...a conviction for aggravated assault stemming from an arrest for violation of an ordinance later held unconstitutional. Russo v. State, Fla.App. 4th 1972, 270 So.2d 428. The same court has recognized in two cases that the statute means precisely what it says and what our Supreme Court says i......