5D01-2775 Richard Jones v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-2775

Case Date: 03/22/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA JANUARY TERM 2004 FIFTH DISTRICT

RICHARD JONES, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed March 26, 2004 Appeal from the Circuit Court for Orange County, Frederick J. Lauten, Judge. James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman and Anthony J. Golden, Assistant Attorneys General, Daytona Beach, for Appellee. CASE NO.: 5D01-2775

ON MOTION FOR REHEARING EN BANC SAWAYA, C.J. The motion for rehearing en banc filed by the appellant, Richard Jones, is hereby granted. We withdraw our previously issued opinion and substitute the following in its place. When he was originally sentenced, Jones received mandatory minimum sentences for two counts of aggravated battery on a law enforcement officer. These offenses were committed in February 2000, before the effective date of Chapter 02-209, Laws of Florida, which provides

for the imposition of a mandatory minimum sentence for each of the offenses Jones committed. The issue in this appeal is whether the provisions of chapter 02-209 should be retroactively applied. Decisions from this court originally resolved this issue by holding that the statute may be applied retroactively. See Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002) (on grant of rehearing); see also Carlson v. State, 27 Fla. L. Weekly D2162 (Fla. 5th DCA Oct. 4, 2002).1 We believe it is time to acknowledge the error of that ruling. Accordingly, Jones' sentences are reversed and this case is remanded for resentencing pursuant to section 784.07(2)(c), Florida Statutes (1997), which does not provide for imposition of a mandatory minimum prison sentence. We will now explain why we have come to the conclusion that our original ruling regarding the retroactive application of chapter 02-209 is erroneous. Chapter 02-209, Laws of Florida, has its genesis in the unconstitutional enactment of Chapter 99-188, which provided for the imposition of mandatory minimum prison sentences for certain offenses. Specifically, section four of chapter 99-188 purported to amend section 784.07(2)(c), Florida Statutes (1997), to require imposition of a mandatory minimum prison term for the offense of aggravated assault on a law enforcement officer. However, when this court decided Hersey, we agreed with the holding in Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA), review dismissed, 821 So. 2d 302 (Fla. 2002), that chapter 99-188 was unconstitutional because it violated the single-subject rule of the Florida Constitution.2 We continue to adhere

Pursuant to Carlson's motion for rehearing that has been pending in this court, we are withdrawing our previous opinion in Carlson and reversing Carlson's sentence by separate opinion to be issued forthwith. Art. III,

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