Opinion
No. 2d 98-2486
Opinion filed May 5, 2000
Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.
Charles H. Holloway, Clearwater, for Appellant.
James Webb, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.
The attorney for James Webb filed a brief in this belated appeal pursuant to Anders v. California, 386 U.S. 738 (1967), and Webb subsequently filed a pro se brief challenging his judgment and sentence for robbery. This court determined that Webb had raised an issue of arguable merit and, pursuant to Penson v. Ohio, 488 U.S. 75 (1988), ordered appellate counsel to file a brief addressing whether Webb should be resentenced in light of the Florida Supreme Court's recent decision finding chapter 95-182, Laws of Florida, unconstitutional. After a review of the supplemental briefs on that issue, we conclude that the trial court erred in sentencing Webb. We affirm Webb's conviction without discussion.
The trial court sentenced Webb after orally finding that Webb qualified as a violent career criminal under section 775.084(1)(c), Florida Statutes (Supp. 1996). Webb argues that the Florida Supreme Court's recent decision in State v. Thompson, 750 So.2d 643 (Fla. 1999), which held that chapter 95-182, which amended section 775.084(1)(c), is unconstitutional as a violation of the single subject requirement of article III, section 6, of the Florida Constitution, requires resentencing. Under that decision, those appellants who committed their crimes within the applicable window period and were sentenced pursuant to section 775.084(1)(c) must be resentenced under the valid laws in effect on the dates they committed their crimes.See Thompson, 750 So.2d at 649. While the supreme court declined to determine the applicable window period, id. at 646, we reaffirm this court's decision that the window period for challenges to the constitutionality of chapter 95-182 extended from October 1, 1995, to May 24, 1997. See Thompson v. State, 708 So.2d 315, 317 n. 1 (Fla. 2d DCA 1998), review granted, 717 So.2d 538 (Fla. 1998), remanded, 750 So.2d 643 (Fla. 1999). Because Webb committed the underlying offense on December 17, 1996, which is within the applicable window period, he is entitled to a new sentencing hearing on remand. We note that, on remand, Webb cannot be sentenced as a violent career criminal as he must be sentenced under the valid laws in effect on December 17, 1996. See Thompson, 750 So.2d at 649. We certify conflict withSalters v. State, 731 So.2d 826, 826 (Fla. 4th DCA), review granted, 749 So.2d 503 (Fla. 1999); and Scott v. State, 721 So.2d 1245, 1246 n. 1 (Fla. 4th DCA 1998).
It should be noted that the judgment and sentence reflects that Webb was sentenced as a habitual violent felony offender pursuant to section 775.084(4)(b), Florida Statutes (Supp. 1996). The form does not have a space for classifying a defendant under section 775.084(1)(c), Florida Statutes (Supp. 1996).
We acknowledge the supreme court's holding that the act which triggers the window period is the commission of the offense. See State v. Thompson, 750 So.2d 643, 649 (Fla. 1999).
We measured this window period from the effective date of chapter 95-182, Laws of Florida, to the date when chapter 97-97, Laws of Florida, reenacted the 1995 amendments contained in chapter 95-182 as part of the Florida Statutes' biennial adoption.See Thompson v. State, 708 So.2d 315, 317 n. 1 (Fla. 2d DCA 1998),review granted, 717 So.2d 538 (Fla. 1998), remanded, 750 So.2d 643 (Fla. 1999).
Reversed and remanded.
CASANUEVA and STRINGER, JJ., Concur
PARKER, A.C.J., Concurs specially.
Because of the language in Thompson v. State, 708 So.2d 315, 317 n. 1 (Fla. 2d DCA 1998), review granted, 717 So.2d 538 (Fla. 1998),remanded, 750 So.2d 643 (Fla. 1999), I reluctantly concur in this decision. Were I writing from a blank slate, I would affirm this case. Webb assumed that he was within the window period based on what I conclude is dicta in Thompson, which stated that the window period for challenges to the constitutionality of chapter 95-182 extended from October 1, 1995 to May 24, 1997. I now conclude that the window period must close on October 1, 1996. See Salters v. State, 731 So.2d 826, 826 (Fla. 4th DCA), review granted, 749 So.2d 503 (Fla. 1999); Scott v. State, 721 So.2d 1245, 1246 n. 1 (Fla. 4th DCA 1998). I reach this conclusion based on the fact that section 775.084(1)(c) was amended in chapter 96-388, Laws of Florida, on October 1, 1996. Consequently, defendants who committed crimes which qualified them as violent career criminals under section 775.084(1)(c) after October 1, 1996, and before the subsequent amendment of chapter 96-388 on July 1, 1999, were sentenced pursuant to the Florida Statutes as amended by chapter 96-388. Because these defendants were not sentenced pursuant to the Florida Statutes as amended by chapter 95-182, they lack standing to challenge its constitutionality.
This window period would be correct if the applicable statutory provision was not amended in another chapter law before the biennial adoption of the 1995 amendments. See State v. Johnson, 616 So.2d 1, 2 (Fla. 1993) ("Once reenacted as a portion of the Florida Statutes, a chapter law is no longer subject to challenge on the grounds that it violates the single subject requirement of article III, section 6, of the Florida Constitution.").
In this case, Webb committed the underlying offense on December 17, 1996, and the court sentenced him as a violent career criminal under section 775.084(1)(c), Florida Statutes (Supp. 1996) (as amended by chapter 96-388). Because he did not commit the underlying offense within the applicable window period for challenges to chapter 95-182, I conclude Webb does not have standing to challenge the constitutionality of that chapter. Therefore, but for Thompson, I would affirm Webb's sentence as a violent career criminal and certify conflict with Brown v. State, No. 3d 98-2667 (Fla. 3d DCA Apr. 26, 2000).