MACK SMITH, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Mack Smith was convicted of being a common liquor dealer under a 1911 Florida statute that criminalized selling liquor in counties that voted against such sales, or selling without a license after a prior conviction. Smith challenged the conviction as an ex post facto violation, arguing the statute impermissibly punished his prior 1911 conviction. The Florida Supreme Court affirmed, holding that the statute permissibly used prior convictions as an element of the current offense.
The statute does not violate the ex post facto clause. The prior conviction is an element of the current offense, and the actual crime for which Smith stands convicted—selling liquor after the statute became effective in a county that voted against such sales—occurred after the statute's enactment.
“the first conviction was had on May 13, 1911, before Chapter 6179 went into effect, and Smith unsuccessfully moved that the cause be transferred to the county court, upon the ground that the law did not and could not so penalize an act committed prior to its passage, but such is not the meaning of the term ex post facto and the statute is broad enough to punish as felons all who had theretofore been adjudged guilty of selling liquor in a county or precinct that had voted against such sale.”
Establishes the court's holding that using prior convictions as an element of a current offense does not constitute ex post facto punishment
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Join FLexlaw to unlock all legal intelligenceMack Smith was convicted in Circuit Court for Manatee County of being a common liquor dealer under section 3 of Chapter 6179 (laws of 1911). He was se…
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Cockrell, J.
— Mack Smith was convicted in the 'Circuit Court for Manatee County of being a common liquor dealer, under section 3 of Chapter 6179 laws of 1911, and sentenced to a term of two years in the State prison. The section reads:
“Sec. 3. Whoever is convicted of selling or causing to be sold, any spirituous, vinous or malt liquors, in any -county or precinct which has voted against the sale of such liquors, under the provisions of Article XIX of the Constitution of the State of Florida, or whenever any person or persons, firm or association is convicted of selling or causing to be sold, or keeping for sale any spirituous, vinous or malt liquors, without his paying the license required by law, having been before convicted of the like offense, shall be deemed and adjudged, to be a common liquor dealer, in violation of law, and shall be punished, upon conviction, by being fined not more than $3,000.00, or by imprisonment in the State Prison not more than five years, or by both fine and imprisonment, in the discretion of the court.”
The indictment alleges that the first conviction was had on May 13, 1911, before Chapter 6179 went into effect, and Smith unsuccessfully moved that the cause be transferred to the county court, upon the ground that the law did not and could not so penalize an act committed prior to its passage, but such is not the meaning of the term ex post facto and the statute is broad enough to punish as felons all who had theretofore been adjudged guilty of selling liquor in a county or precinct that had voted against such sale. The selling for which he stands now convicted took place as alleged after the statute became effective and that is the crime for which he is being tried.
The cases seem to be uniform in holding that the federal inhibition against ex post facto laws does not apply to such cases. Ex parte Gutierrez, 45 Cal. 429; State v. Woods, 68 Me. 409; In re Ross, 2 Pick. (Mass.) 165; Commonwealth v. Graves, 155 Mass. 163, 29 N. E. Rep. 579, 16 L. R. A. 256; Sturtevant v. Commonwealth, 158 Mass. 598, 33 N. E. Rep. 648; Blackburn v. State, 50 Ohio St. 428, 36 N. E. Rep. 18; Rand v. Commonwealth, 9 Gratt. (Va.) 738.
The judgment is affirmed. Whitfield, C. J., and Taylor, Shackleford and Hocker, J. J., concur.
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Harrison Thompson v. State, 66 Fla. 206 (Fla. 1913)…oid because at the time said chapter was enacted by the Legislature of the State of Florida there was nothing in its title referring to or covering the subject matter of said Section 3.” We had occasion to consider this section 3 in Smith v. State, 62 Fla. 91, 57 South. Rep. 348, wherein we held that “The legislature may make it a felony to commit the second offense of selling liquors in a county voting against the sale of liquors, even though the prior conviction was had before the passage of the statut…
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Seaboarn Land v. State, 77 Fla. 212 (Fla. 1919)…statute has been henl valid by this court in a case in which the question of its constitutional validity was expressly passed upon because necessary in the disposition of the case. Thompson v. State, 66 Fla. 206, 63 South. Rep. 423; Smith v. State, 62 Fla. 91, 57 South. Rep. 348. But suppose this section should be invalid, that would avail plaintiff in error nothing because he is charged with having committed the offense denounced by section two (2) of the statute, the validity of which is not questioned…
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Vander Brooks v. State, 69 Fla. 446 (Fla. 1915)…Brooks was convicted of the crime of being a common liquor dealer, under Section 3 of Chapter 6179 of the Laws of Florida of 1911, which forms Section 3448a of Florida Compiled Laws, 1914, Annotated, and which will be found copied in Smith v. State, 62 Fla. 91, 57 South. Rep. 348, and Thompson v. State, 66 Fla. 206, 63 South: Rep. 423. The first error assigned is as follows: “The court erred in admitting in evidence over the objection of defendant of the bottle marked Cream of Kentucky Whiskey, it not be…