HENRY LEE JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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RYDER, Judge.
Indigent Henry Lee Johnson appeals an order requiring him to perform sixty hours of community service in lieu of paying a fine of $200.00 in costs after he received a guidelines sentence of five years in the state prison for attempted burglary of a dwelling.
Johnson claims that section 27.-3455, Florida Statutes (1985), which authorizes a court to impose such service in lieu of a fine, is unconstitutional in that it violates the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. Johnson draws our attention to Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) and tells us Williams prohibits incarceration solely because one is indigent. The concept and the program of community service is, however, not one requiring incarceration. It is a means through which the state meets its goals of punishment and deterrence as is permitted under Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed. 221 (1983).
We hold section 27.3455, Florida Statutes (1985), and section 948.031, Florida Statutes (1983), constitutional and, thus, affirm.
Affirmed.
GRIMES, A.C.J., and SANDERLIN, J., concur.
PER CURIAM.
Upon consideration, appellant’s motion for rehearing is denied. Appellant raises the issue that section 27.3455, Florida Statutes (1985), violates ex post facto restrictions of the United States and Florida Constitutions as applied to him. The crime of which he was convicted occurred prior to the effective date of the statute. Ch. 85-213, §§ 2, 3, Laws of Fla. We deny appellant’s motion for rehearing because the ex post facto issue was first raised in the motion. Ex post facto issues are generally not fundamental error, therefore must be raised at trial to be properly preserved for appeal. Springfield v. State, 443 So. 2d 484, 485 (Fla. 2d DCA 1984). Our denial of appellant’s motion for rehearing is without prejudice to appellant seeking relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850. Id.
GRIMES, A.C.J., and RYDER and SANDERLIN, JJ., concur.
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Gaffney v. State, 497 So. 2d 1292 (Fla. 5th DCA 1986)…dings. AFFIRMED IN PART; REVERSED IN PART; REMANDED. COBB and COWART, JJ., concur. SHARP, J., dissents with opinion. . See Butler v. State, 492 So. 2d 757 (Fla. 4th DCA 1986); State v. Castro, 491 So. 2d 313 (Fla. 2d DCA 1986); State v. Johnson, 495 So. 2d 188 (Fla. 2d DCA 1986); Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986). See also Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). . The First District Court later certified the following question as one that will have a gr…
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Webber v. State, 497 So. 2d 995 (Fla. 5th DCA 1986)…d on appeal notwithstanding the defendant’s failure to object at sentencing because it results in an illegal sentence. State v. Whitfield, 487 So. 2d 1045 (Fla.1986). Contra, Slaughter v. State, 493 So. 2d 1109 (Fla. 1st DCA 1986); Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA Oct. 3, 1986). We therefore strike from the sentence the imposition of $200 in costs. Except as to these costs, the sentence is otherwise affirmed. As we did in Yost, we certify to the supreme court the following question of great pub…
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Jones v. State, 498 So. 2d 1359 (Fla. 2d DCA 1986)…e also certify in this case the question set out in Bowman to the Florida Supreme Court as a question of great public importance. Appellant’s equal protection challenge to section 27.3455, Florida Statutes (1985), is without merit. Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986). Appellant’s third point on appeal is that the five-and-one-half year sentences for the offenses of aggravated assault and possession of a controlled substance (two of the offenses for which the probation was revoked) were in exc…
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- Williams v. Illinois, 399 U.S. 235 (U.S. 1970)
- Bearden v. Georgia, 461 U.S. 660 (U.S. 1983)
- Buford Springfield v. State, 443 So. 2d 484 (Fla. 2d DCA 1984)