STATE OF FLORIDA, APPELLANT,
v.
ROBERT COGSWELL, APPELLEE
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PER CURIAM.
We affirm and note our agreement with the trial court that section 849.25, Florida Statutes (1985) is constitutionally invalid as a due process and equal protection violation to the extent that it permits the prosecution as a felony of the same conduct treated as a misdemeanor by section 849.14, Florida Statutes (1985). The same prohibited conduct of “taking or receiving a bet” may be prosecuted under either statute, depending upon the discretion of the prosecutor. We believe this is the situation contemplated by the Florida Supreme Court in Soverino v. State, 356 So. 2d 269, 272 n. 2 (Fla.1978) when it stated:
We note that appellant might have an equal protection argument if a violation of the misdemeanor statute invariably constituted a violation of the felony statute. Palmore v. United States, 290 A. 2d 573 (D.C.1972). In the instant case, a violation of § 784.03 would not invariably constitute a violation of § 784.07.
DOWNEY, ANSTEAD and GUNTHER, JJ., concur.
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Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)…nity only because it found a clear legislative intent to impose separate punishments and because the two offenses, importation of drugs and distribution of drugs, address "separate evils.” 450 U.S. at 343, 101 S.Ct. at 1144. . In State v. Cogswell, 504 So. 2d 464 (Fla. 4th DCA 1987), the court confronted a situation where violation of a misdemeanor gambling statute invariably constituted violation of a separate felony gambling statute. However, the Cogswell court decided the question on equal protection and…
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State v. Cogswell, 521 So. 2d 1081 (Fla. 1988)…OVERTON, Justice. This is an appeal from State v. Cogswell, 504 So. 2d 464 (Fla. 4th DCA 1987), in which the district court held that section 849.25, Florida Statutes (1985), dealing with bookmaking, “is constitutionally invalid as a due process and equal protection violation to the extent that it permits the prosecution a…
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State v. Emil Gatto, 516 So. 2d 289 (Fla. 4th DCA 1987)…m the trial court’s order dismissing the bookmaking charges against the appellant on the basis that the bookmaking statute, section 849.25, Florida Statutes (1985), was unconstitutional as applied to appellant, on the authority of State v. Cogswell, 504 So. 2d 464 (Fla. 4th DCA 1987). We also note that the legislature amended the bookmaking statute, effective October 1,1987, to cure the problem which concerned this court in Cogswell. HERSEY, C.J., and ANSTEAD and DELL, JJ., concur.…
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- Carmelos Soverino v. State, 356 So. 2d 269 (Fla. 1978)