THE STATE OF FLORIDA, APPELLANT,
v.
JOSEPH CHESTER MARECHAL, MICHAEL SAMUEL NEWMAN, MARVIN SCHNEIDER, WILLIE SCHNEIDER, WENDY GILES, CARL KRANTZ, ARCHIE COHEN, RONALD DEFELICI-BUS, MARVIN ELBERT WARD, GUSTAVO BAEZ AND MICHAEL JOSEPH ELIAS; FRANK ANTHONY AMBROSE; MICHAEL DONOVAN CLARK; ROBERT GORDON, JR., JACK DELANO VARAJAO; ANTHONY WILLIAM WILSON; AND FENNER PHILLIPS, APPELLEES
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A statute declared unconstitutional by a trial court is valid if the Supreme Court later upholds its constitutionality, even if the offense occurred after the trial court's ruling.
Appellees were charged with bookmaking under a statute later declared unconstitutional by a trial court. The State appealed that ruling, and the Supre…
The full statement of facts, procedural history, and disposition for this case are member content.
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FERGUSON, Judge.
The question presented in this appeal was answered in State v. Cogswell, 521 So. 2d 1081 (Fla.1988), which issued after most of the appellees had filed answer briefs. There it was held that section 849.-25, Florida Statutes (1985), which gives a prosecutor the discretion to charge a single act of bookmaking as either a felony or a misdemeanor, is not unconstitutional.
One of the appellees, whose brief was prepared after Cogswell was filed, argues a reliance theory — that the supreme court decision should not be given retroactive effect to convict since (1) the alleged criminal conduct occurred after the trial court in State v. Cogswell had declared the statute unconstitutional, and (2) the trial court in this case declared the statute unconstitutional on the authority of that case. It is conceded by the appellee, however, that the State’s appeal from the Broward County trial court’s ruling in the Cogswell case was pending when the subject bookmaking offenses occurred.
On this point we note, in accordance with settled principles of Florida law, that where there is a change of law between the trial of a case and the final disposition of the appeal, the appellate court must apply the law as it exists at the time of final disposition. Lowe v. Price, 437 So. 2d 142 (Fla.1983); City of Miami v. Harris, 490 So. 2d 69 (Fla. 3d DCA 1985); Florida E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla.1966). Where a decision holding a statute unconstitutional is subsequently overruled by the highest tribunal, the statute is valid from the date of its enactment. State ex rel. Gillespie v. Bay County, 112 Fla. 687, 151 So. 10 (1933); Hampton v. A. Duda & Sons, Inc., 511 So. 2d 1104 (Fla. 5th DCA 1987).
The order declaring section 849.25 unconstitutional is reversed and the cause is remanded for trials.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Fla. E. Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1966)
- Lowe v. The Honorable Joseph E. Price, 437 So. 2d 142 (Fla. 1983)
- State v. Cnty. of Bay, 112 Fla. 687 (Fla. 1933)
- State v. Cogswell, 521 So. 2d 1081 (Fla. 1988)
- The City OF Miami v. Harris, 490 So. 2d 69 (Fla. 3d DCA 1985)
- Hampton v. A. Duda & Sons, Inc., 511 So. 2d 1104 (Fla. 5th DCA 1987)