HAYNECZ v. STATE (1999)

District Court of Appeal of Florida,Fourth District.

Michael HAYNECZ, Appellant, v. STATE of Florida, Appellee.

No. 98-1686.

Decided: October 20, 1999

Richard L. Jorandby, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

The defendant appeals his guilty pleas and sentences for burglary and possession of burglary tools. We affirm in all respects, except we reverse the defendant's sentences and remand for re-sentencing.

The defendant asserts the trial court improperly enhanced his sentences under the Criminal Street Gang Prevention Act, section 874.04, Florida Statutes (1997). The Florida Supreme Court has recently declared section 874.04 violates substantive due process, thereby rendering it unconstitutional. See State v. O.C., Case No. 94,513, 748 So.2d ----, 1999 WL 731661 (Fla. Sept. 16, 1999). Because the trial court enhanced the defendant's sentences pursuant to section 874.04, we reverse and remand for re-sentencing.

AFFIRMED in part, REVERSED in part, and REMANDED.

PER CURIAM.

GUNTHER, FARMER and GROSS, JJ., concur.

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