Opinion
No. 4D99-2850.
Opinion filed January 24, 2001.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Marc A. Cianca, Judge; L.T. Case No. 99-39-CFA.
The motion for rehearing and certification is Denied.
Carey Haughwout, Public Defender, and Maxine Williams, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
On Motion to Certify Question of Great Public Importance
Appellant, in his motion for rehearing, requests that we certify the following question as one of great public importance:
DOES FLORIDA'S CRIMINAL PUNISHMENT CODE VIOLATE A DEFENDANT'S RIGHTS TO EQUAL PROTECTION, DUE PROCESS OF LAW, AND PROTECTION AGAINST DOUBLE JEOPARDY?
In his motion, appellant suggests that we may have overlooked a law review article, cited as supplemental authority, which concluded that the Criminal Punishment Code is unconstitutional. We did not overlook the article. The article, however, as well as the other arguments raised by appellant, failed to persuade us that a close question is presented as to constitutionality.
Robert Batey, Stephen M. Everhart, The New Appeal Provision of Florida's Criminal Punishment Code: Unwise and Unconstitutional, University of Florida, Journal of Law and Public Policy, Vol. II, p. 18 (Fall 1999).
When Article V of the Florida Constitution was amended in 1980, one of the purposes was to limit the jurisdiction of the Florida Supreme Court, because of its "burgeoning caseload and the attendant need to make more efficient use of limited appellate resources." Committee Notes, Fla.R.App.P. 9.030. The committee notes go on to explain: "The district courts of appeal will constitute the courts of last resort for the vast majority of litigants under amended Article V." Although it was perfectly proper for appellant to request certification in this case, it is incumbent on us, under Article V, to be selective.
In addition, the Florida Supreme Court has, at conferences, suggested that we should be selective. See also Zellers v. State, 725 So.2d 1105 (Fla. 1999) (declining to review certified question); Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12 (Fla. 1994) (declining to review second of two certified questions).
Our refusal to certify in this case does not preclude review by the Florida Supreme Court. Where a district court of appeal holds a statute valid, as we have in this case, the supreme court has the same discretionary jurisdiction to review our decision as it would have had if we had certified a question. Art. V, § 3(b), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(i). If we had held the statute invalid, the State would have been entitled to review in the Florida Supreme Court as a matter of right. Fla.R.App.P. 9.030(a)(1)(A)(ii).
We mention invalidity because it seems that in every case in which we hold a statute invalid the losing party asks us to certify a question. Because supreme court review is mandatory when we hold a statute invalid, and merely discretionary when we certify, granting certification under those circumstances could obscure the fact that review is mandatory.
Klein, Shahood and Gross, JJ., Concur.