Opinion
No. 71-449.
January 6, 1972. On Rehearing February 29, 1972.
Jack J. Taffer and Arden M. Siegendorf, Miami, for relator.
Richard E. Gerstein, State's Atty., and Milton Robbins, Asst. State's Atty., for respondent.
Before SWANN, C.J., and HENDRY and BARKDULL, JJ.
Relator has filed a suggestion for a writ of prohibition to halt a prosecution under an information charging a violation of § 790.23, Fla. Stat., F.S.A. of having owned or having in his care, custody or control a firearm (pistol). The statute provides:
" 790.23 Felons; possession of firearms unlawful; exception; penalty. —
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"(2) This section shall not apply to a person having been convicted of a felony whose civil rights have been restored or to a person convicted of a felony for antitrust violation, unfair trade practice, restraints of trade, nonsupport of dependents, bigamy, or other similar offense."
Relator has been heretofore convicted of the felony of attempted breaking and entering of a dwelling with the intent to commit petit larceny. The trial court denied his motion to dismiss the information on the ground that this section of the statute was unconstitutionally vague.
Thereupon, the relator sought the instant extraordinary writ. We issued the rule nisi, the respondent made a return, briefs were filed and oral arguments were heard. After careful consideration of the statute in question and the cases cited, we have concluded that the relator is entitled to the issuance of the writ absolute and it is granted.
Van Cott v. Driver, Fla.App. 1971, 243 So.2d 457; Lanzetta v. New Jersey (1939) 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, 892, 893; see also Aztec Motel, Inc. v. State ex rel. Faircloth, Fla. 1971, 251 So.2d 849.
In full confidence that the trial court will adhere to the decision of this court, we withhold issuance of the formal writ.
ON REHEARING
In the initial opinion of this court rendered on January 6, 1972 based upon the authority of the holding in Van Cott v. Driver, Fla.App. 1971, 243 So.2d 457, we held that the relator was entitled to the issuance of the writ absolute in prohibition.
While a petition for rehearing was pending before us, the Supreme Court of Florida reversed the decision of the Second District in Driver v. Van Cott, Fla. 1971, 257 So.2d 541, holding that the Florida Statute § 790.23, Fla. Stat. 1969, F.S.A., was constitutional.
Viewing the instant appeal and petition for rehearing in the light of the holding in Van Cott, we must recede from our original holding and follow the holding enunciated by our Supreme Court in Van Cott.
For the reasons stated, and authority cited, upon rehearing granted (without further oral argument) the rule nisi in prohibition heretofore entered by this court is discharged and the writ of prohibition is dismissed.
It is so ordered.