HERSEY v. STATE (2005)

Supreme Court of Florida.

Scott HERSEY, Petitioner, v. STATE of Florida, Respondent.
Howard H. Lewis, Petitioner, v. State of Florida, Respondent.
Tony Deramous Oliver, Petitioner, v. State of Florida, Respondent.
Kyle Shiver, Petitioner, v. State of Florida, Respondent.
Robert Clayton, Petitioner, v. State of Florida, Respondent.
Henry L. Fillyaw, Petitioner, v. State of Florida, Respondent.
Ana M. Pena, Petitioner, v. State of Florida, Respondent.
Patrick G. Taylor, Petitioner, v. State of Florida, Respondent.
Albert H. Lawhon, Petitioner, v. State of Florida, Respondent.

Nos. SC02-2630, SC03-401, SC03-404, SC03-537, SC03-770, SC03-1767, SC03-1828, SC03-2383, SC04-57.

Decided: April 21, 2005

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioners in Nos. SC02-2630, SC03-401 and SC03-770. James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner in No. SC03-404. James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner in No. SC03-1767. Kyle Shiver, Apopka, FL, Petitioner, pro se in No. SC03-537. Michael Dominick Dicembre, Orlando, FL, for Petitioner in No. SC03-1828. Patrick G. Taylor, Daytona Beach, FL, Petitioner, pro se in No. SC03-2383. Albert H. Lawhon, Sanderson, FL, Petitioner, pro se in No. SC04-57. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Mary G. Jolley, Assistant Attorney General, Daytona Beach, FL, for Respondent in No. SC02-2630. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Mary G. Jolley and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, FL, for Respondent in No. SC03-401. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Angela D. McCravy, Assistant Attorney General, Daytona Beach, FL, for Respondent in No. SC03-404. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Robin Angie Compton, Assistant Attorney General, Daytona Beach, FL, for Respondent in Nos. SC03-537 and SC03-1828. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Wesley Heidt, Assistant Attorney General, Daytona Beach, FL, for Respondent in No. SC03-770. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, FL, for Respondent in No. SC03-1767. Charles J. Crist, Jr., Attorney General, Tallahassee, FL, for Respondent in No. SC03-2383. Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Pamela J. Koller, Assistant Attorney General, Daytona Beach, FL, for Respondent in No. SC042-57.

We have for review the decisions in these cases, which concern the constitutionality of chapter 99-188, Laws of Florida, known as the “Three-Strike Violent Felony Offender Act” (the Act). In Hersey v. State, 831 So.2d 679, 680 (Fla. 5th DCA 2002), the Fifth District Court of Appeal concluded that the Act violated the single subject clause in article III, section 6 of the Florida Constitution, but ultimately upheld the sentence imposed pursuant to chapter 99-188 on grounds that the Act's infirmity was retroactively cured by legislation enacted in 2002. The other cases under review herein were decided accordingly.¹ In each case, the Fifth District certified either a question of great public importance or conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), quashed, State v. Green, 887 So.2d 1089 (Fla.2004), on the constitutional validity of the retroactive cure. We have jurisdiction, see art. V, § 3(b)(3)-(4), Fla. Const., and consolidate these cases for disposition.

We expressly disapprove of the Fifth District's conclusion that a single subject violation occurred. See Franklin v. State, 887 So.2d 1063, 1067 (Fla.2004) (holding that chapter 99-188 did not violate the single subject rule). Our conclusion that no single subject violation occurred renders it unnecessary for us to address whether the retroactive application of the 2002 legislation to crimes occurring before that legislation took effect would be a violation of the ex post facto clauses of the Florida and United States Constitutions. See State v. Green, 887 So.2d 1089, 1090 (Fla.2004). Because the Fifth District also determined that these sentences were valid, albeit on different grounds, these cases need not be remanded for further proceedings.

It is so ordered.

I dissent for the same reasons expressed in my dissenting opinion in Franklin v. State, 887 So.2d 1063 (Fla.2004).

FOOTNOTES

1. The Fifth District ultimately receded from Hersey and held that the 2002 legislation could not retroactively cure the single subject violation without violating the ex post facto clauses of the state and federal constitutions. See Jones v. State, 872 So.2d 938, 940 (Fla. 5th DCA 2004). We also have Jones and its Fifth District progeny for review, and address those cases in a separate opinion. See State v. Jones, No. SC04-706, 908 So.2d 1054, 2005 WL 914192 (Fla. April 21, 2005).

PARIENTE, C.J.

WELLS, ANSTEAD, CANTERO, and BELL, JJ., concur. LEWIS, J., dissents. QUINCE, J., dissents with an opinion.

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