R.D.P., JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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WHATLEY, Judge.
R.D.P. appeals his sentences for petit theft and criminal mischief. He contends that his sentences were improperly enhanced pursuant to section 874.04, Florida Statutes (Supp.1996), on the ground that he is a member of a gang. He argues that the trial court improperly took judicial notice that the gang of which he was allegedly a member was in fact a gang and that the statute allowing for the enhancement is unconstitutional.
We need not reach the issue regarding the taking of judicial notice because we agree with the Fifth District that section 874.04 is unconstitutional. See O.C. v. State, 722 So. 2d 839 (Fla. 5th DCA 1998).
Accordingly, we affirm R.D.P.’s adjudications but reverse R.D.P.’s sentences and remand for resentencing without the enhancement provided for in section 874.04.
Reversed and remanded for resentencing.
THREADGILL, A.C.J., and GREEN, JJ., Concur.
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State v. R.D.P., Jr., 752 So. 2d 560 (Fla. 2000)…PARIENTE, J. We have on appeal R.D.P. v. State, 735 So. 2d 551 (Fla. 2d DCA 1999), a decision of the district court declaring invalid section 874.074, Florida Statutes (Supp.1996). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Section 874.04 allows trial courts to enhance the degree of crime under…
Authorities Cited
- O. C. v. State, 722 So. 2d 839 (Fla. 5th DCA 1998)