Opinion
No. 99-61.
Opinion filed September 1, 1999.
An Appeal from the Circuit Court for Dade County, Andrew S. Hague, Judge, L.T. No. 96-28575.
Bennett H. Brummer, Public Defender, and Spencer Klein and David M. Tarlow, Special Assistant Public Defender for appellant.
Robert A. Butterworth, Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
Before COPE, LEVY, and GREEN, JJ.
Appellant appeals his conviction on two grounds. In his first argument, appellant challenges the reasonable doubt instruction the trial court gave to the jury. Appellant's second argument relates to the constitutionality of The Officer Evelyn Gort and All Fallen Officers Career Criminal Act of 1995 ("Evelyn Gort Act").
In view of the fact that the record fails to demonstrate any error, we affirm the judgment and sentence entered below. With regard to the issue of the constitutionality of the Evelyn Gort Act, we affirm on the authority of Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997) wherein this Court upheld the constitutionality of the Evelyn Gort Act see also Trapp v. State, 24 Fla. L. Weekly D1431 (Fla. 1st DCA July 14, 1999); Valdes v. State, 728 So.2d 1225 (Fla. 3d DCA 1999); John v. State, 728 So.2d 824 (Fla. 3d DCA 1999); English v. State, 721 So.2d 1250 (Fla. 3d DCA 1998), review granted, 732 So.2d 326 (Fla. 1999); Spann v. State, 719 So.2d 1031 (Fla. 3d DCA 1998), review granted, 729 So.2d 918 (Fla. 1999); Cyrus v. State, 717 So.2d 619 (Fla. 3d DCA 1998); Almanza v. State, 716 So.2d 351 (Fla. 3d DCA 1998); Elliard v. State, 714 So.2d 1218 (Fla. 3d DCA), review granted, 728 So.2d 201 (Fla. 1998);Holloway v. State, 712 So.2d 439 (Fla. 3d DCA), review granted, 727 So.2d 906 (Fla. 1998); Linder v. State, 711 So.2d 1340 (Fla. 3d DCA 1998), and certify conflict withThompson v. State, 708 So.2d 315 (Fla. 2d DCA 1998), review granted, State v. Thompson, 717 So.2d 538 (Fla. 1998).
Affirmed.
While I agree with the majority that there is no merit to the appellant's challenge to the reasonable doubt instruction given in this case, I write separately to address the appellant's sentence entered pursuant to the "Officer Evelyn Gort and all Fallen Officers Career Criminal Act of 1995," Chapter 95-182, Laws of Florida. As I have previously written in my special concurring opinions in Valdes v. State, 728 So.2d 1225 (Fla. 3d DCA 1999), John v. State, 724 So.2d 708 (Fla. 3d DCA 1999), English v. State, 721 So.2d 1250 (Fla. 3d DCA 1998), and Elliard v. State, 714 So.2d 1218 (Fla. 3d DCA), review granted, 728 So.2d 201 (Fla. 1998), I believe that this act, as written, is unconstitutional because it violates the single subject requirement of article III, section 5 of the Florida Constitution for the reasons set forth in the Second District's opinion in Thompson v. State, 708 So.2d 315 (Fla. 2d DCA), review granted, 717 So.2d 538 (Fla. 1998). Therefore, I believe that this court should recede from its opinion in Higgs v. State, 695 So.2d 872 (Fla. 3d DCA 1997), and its progeny, reverse the appellant's sentence and remand for resentencing.
See Lee v. State, No. 98-1597, 1999 WL 510570 (Fla. 3d DCA July 21, 1999); Williams v. State, 731 So.2d 99 (Fla. 3d DCA 1999); Valdes, 728 So.2d at 1225; McGowan v. State, 725 So.2d 470 (Fla. 3d DCA 1999); Russell v. State, 725 So.2d 1274 (Fla. 3d DCA 1999); Waldo v. State, 728 So.2d 280 (Fla. 3d DCA 1999); Robbins v. State, 730 So.2d 313 (Fla. 3d DCA 1999); Gonzalez v. State, 724 So.2d 1271 (Fla. 3d DCA 1999); Marshall v. State, 723 So.2d 923 (Fla. 3d DCA 1999); English, 721 So.2d at 1250; Spann v. State, 719 So.2d 1031 (Fla. 3d DCA 1998); Tillman v. State, 718 So.2d 944 (Fla. 3d DCA 1998), review granted, 727 So.2d 914 (Fla. 1999); Cyrus v. State, 717 So.2d 619 (Fla. 3d DCA 1998); Almanza v. State, 716 So.2d 351 (Fla. 3d DCA 1998); Elliard, 714 So.2d at 1218; Holloway v. State, 712 So.2d 439 (Fla. 3d DCA), review granted, 727 So.2d 906 (Fla. 1998); Dupree v. State, 711 So.2d 647 (Fla. 3d DCA 1998); Linder v. State, 711 So.2d 1340 (Fla. 3d DCA 1998).