S.W.M., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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S.W.M., a juvenile, was charged with escape under a repealed statute (section 39.112) after its replacement statute (section 39.061) was found unconstitutional. The court affirmed the adjudication of delinquency, holding that the unconstitutional repeal provision was void and the predecessor statute was automatically revived.
The trial court properly denied the motion to dismiss because when a legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, the judicial act of striking the new language automatically revives the predecessor statute unless it too would be unconstitutional. The court affirmed the adjudication of delinquency.
[1] A repealed statute is automatically revived when a subsequent statute that repeals it is declared unconstitutional, provided that the repeal was intended to avoid a hiatu…
[2] A statute that repeals a predecessor statute is void if the repealing statute is found unconstitutional.
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Join FLexlaw to unlock all legal intelligence“when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional”
This quote establishes the central legal principle governing automatic statutory revival when a repeal provision is rendered void.
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Join FLexlaw to unlock all legal intelligenceIn 1992, S.W.M. was charged with escape from a halfway house under section 39.112, which had been repealed effective October 1, 1990, when section 39.…
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PER CURIAM.
The appellant, S.W.M., a child, challenges the trial court’s order adjudicating him delinquent for committing the act of escape. We affirm.
The state filed a petition against appellant charging him with escape from a halfway house in violation of section 39.112, Florida Statutes (1989). Appellant filed a motion to dismiss the petition on the basis that it was invalid because section 39.112 had been repealed by the legislature. The trial court denied the motion to dismiss. Appellant entered a plea of nolo contendere reserving the right to appeal the ruling on his motion to dismiss. Appellant was adjudicated delinquent and committed to the custody of the Department of Health and Rehabilitative Services. He filed this timely appeal.
In 1992 appellant was charged pursuant to the “old” escape statute section 39.112. Section 39.112, however, had been repealed effective October 1, 1990, when the “new” escape statute, section 39.061, Florida Statutes (Supp.1990), became effective. The new escape statute, section 39.061, was found unconstitutional in D.P. v. State, 597 So. 2d 952 (Fla. 1st DCA 1992). This court followed D.P. in State v. Brower, 608 So. 2d 536 (Fla. 2d DCA 1992).
The appellant argued that it was improper to prosecute him under section 39.112 since that statute had been repealed. Appellant further argued that the ruling in D.P., that the new escape statute section 39.061 was unconstitutional, did not have the effect of reviving the old escape statute section 39.112. In denying the motion to dismiss, the trial court ruled that since the new escape statute, section 39.061, had been found unconstitutional, the provision in the new statute which repealed section 39.112 must also be void. The trial court reasoned that since the re-pealer provision was void, the repealed statute, section 39.112, should remain in full force and effect.
The supreme court in B.H. v. State, 645 So. 2d 987 (Fla.1994), has issued an opinion which resolves the issues in the instant appeal. The court found that section 39.061, Florida Statutes (Supp.1990), was unconstitutional for violating both the nondelegation and vagueness doctrines. The court also held that the failure of section 39.061, Florida Statutes (Supp.1990), worked an automatic revival of its immediate predecessor section 39.112, Florida Statutes (1989). The supreme court cited the general rule which states that when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional. This rule, as noted by the supreme court, is generally applicable only where the loss of the invalid statutory language will result in a “hiatus” in the law that would be intolerable to society.
Therefore, according to the supreme court’s holding in B.H. there was an automatic revival of section 39.112. Accordingly, we hold that the trial court properly denied the appellant’s motion to dismiss and we affirm.
Affirmed.
DANAHY, A.C.J., and SCHOONOVER and FULMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- B.H. v. State, 645 So. 2d 987 (Fla. 1994)
- In the Interest of B.H. v. State, 597 So. 2d 952 (Fla. 1st DCA 1992)
- In the Interest of D.P. v. State, 597 So. 2d 952 (Fla. 1st DCA 1992)
- State v. Brower, 608 So. 2d 536 (Fla. 2d DCA 1992)
- Stewart v. State, 608 So. 2d 536 (Fla. 2d DCA 1992)