KEVIN THOMAS, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Court quashed the decision below, vacated the conviction and sentence, and remanded for retrial on any lesser offense.
[1] A law violates the single subject requirement of article III, section 6 of the Florida Constitution if it encompasses more than one subject.
[2] When a defendant is convicted of a crime that is later found to be nonexistent due to a constitutional violation, the proper remedy is to remand for retrial on any lesser…
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Join FLexlaw to unlock all legal intelligenceThomas was convicted of possession of a firearm by a violent career criminal under a statute that was later challenged as violating the single subject…
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PER CURIAM.
We have for review Thomas v. State, 744 So. 2d 1121 (Fla. 1st DCA 1999), in which the First District Court of Appeal certified conflict with the Second District’s decision in Thompson v. State, 708 So. 2d 315 (Fla. 2d DCA 1998), approved, 750 So. 2d 643 (Fla.1999), on the issue of whether chapter 95-182, Laws of Florida, violates the single subject requirement contained in article III, section 6 of the Florida Constitution. We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. Thomas was convicted of possession of a firearm by a violent career criminal, in violation of section 790.235(1), Florida Statutes (1995), and sentenced as such pursuant to section 775.084(l)(c), Florida Statutes (1995).
Thomas appealed to the First District arguing that chapter 95-182, Laws of Florida, which created the offense of which he was convicted and the violent career criminal sentencing category, violated the single subject rule contained in article III, section 6 of the Florida Consti tution.
The district court affirmed, but certified conflict with Thompson v. State, 708 So. 2d 315 (Fla. 2d DOA 1998), wherein the Second District held that chapter 95-182 violated the single subject requirement. See Thomas, 744 So. 2d at 1121. Thomas sought this Court’s review.
In its response to our order to show cause, the State has replied that this case is controlled by our recent decision in State v. Thompson, 750 So. 2d 643 (Fla.1999), and that the district court’s decision should be quashed and the case should be remanded. Based on the State’s response to our order to show cause, we quash the decision below; vacate Thomas’s conviction and sentence; and remand for retrial on any lesser offense instructed on at trial. See State v. Gibson, 682 So. 2d 545, 546 (Fla.1996) (holding that when a defendant is convicted of a crime found to be nonexistent at the time he is alleged to have committed it, the proper remedy is to remand for a retrial on any lesser offense instructed on at trial).
It is so ordered.
SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur. WELLS, C.J., concurs in result only.
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Cunningham v. State, 864 So. 2d 44 (Fla. 3d DCA 2003)…PER CURIAM. Pursuant to the State’s proper concession, we vacate the defendant’s convictions for possession of a firearm by a convicted felon, as required by Thomas v. State, 777 So. 2d 957 (Fla.2001). On remand, the defendant’s sentence on this conviction shall also be vacated. The order is affirmed in all other respects. Conviction vacated; remanded with instructions.…
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Wright v. State, 784 So. 2d 528 (Fla. 3d DCA 2001)…l possession charge a non-existent crime. See Levan v. State, 759 So. 2d 683 (Fla.2000) (noting that the offense of possession of a firearm by a violent career criminal was created through the passage of chapter 95-182). Pursuant to Thomas v. State, 777 So. 2d 957, 26 Fla. L. Weekly S51 (Fla. Jan. 18, 2001), the proper remedy is to remand the case for retrial on any lesser included offense actually instructed on at trial. As the jury here was instructed on the lesser offense of possession of a firearm by a co…
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State v. Moore, 814 So. 2d 1127 (Fla. 2d DCA 2002)…logical to conclude that the evidence at Mr. Moore’s trial would have proven him guilty of the crime of felon in possession of a firearm, the trial court took the only recourse available under the Florida Supreme Court’s decision in Thomas v. State, 777 So. 2d 957 (Fla.2001). Thomas was also convicted of and sentenced for possession of a firearm by a violent career criminal under the act that was subsequently declared unconstitutional in Thompson, 750 So. 2d 643. The supreme court ordered that Thomas’s convic…
Authorities Cited
- State v. Thompson, 750 So. 2d 643 (Fla. 1999)
- Thompson v. State, 708 So. 2d 315 (Fla. 2d DCA 1998)
- State v. Gibson, 682 So. 2d 545 (Fla. 1996)
- Thomas v. State, 744 So. 2d 1121 (Fla. 1st DCA 1999)
- Nordic Track and The Hartford v. Zimmerman, 744 So. 2d 1121 (Fla. 1st DCA 1999)