BRENT ANDREW GREGG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Affirmed revocation of community control and resulting prison sentence; appellant's constitutional challenge to drug statutes was not properly raised and must await resolution in pending Florida Supreme Court case.
A defendant who fails to raise a constitutional challenge to a drug statute in his direct appeal of the underlying conviction cannot raise it for the first time in an appeal of a community control violation.
[1] A constitutional challenge to a criminal statute must be raised in the direct appeal of the underlying conviction and cannot be raised for the first time in a subsequent…
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Join FLexlaw to unlock all legal intelligenceGregg pleaded guilty in 2010 to drug offenses committed in 2009, received suspended sentences with two years of community control, and subsequently vi…
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Brent Andrew Gregg appeals the order entered in April 2011 revoking his community control and the resulting prison sentences. We affirm.
*813In two separate informations, Mr. Gregg was charged with several drug offenses committed in 2009. He pleaded guilty in 2010. The trial court entered judgments at that time and sentenced him to fully suspended, true split sentences that placed him on community control for two years. While on community control, Mr. Gregg violated the conditions of community control. When he admitted the violation, the trial court sentenced him to 74.85 months’ incarceration.
On appeal, the only issue Mr. Gregg raises is the constitutionality of the relevant drug statutes. This issue is pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 184 (Fla. 2d DCA), review granted, 71 So.3d 117 (Fla.2011). We conclude that Mr. Gregg was required to raise this issue in a direct appeal of his judgment when it was entered in 2010. He is not entitled to raise this issue for the first time in this appeal of the order entered on his violation of community control. In the event that the supreme court holds a relevant statute unconstitutional in Adkins, Mr. Gregg may be entitled to raise this issue in a timely filed motion for postconviction relief.
Affirmed.
KELLY and VILLANO!, JJ., Concur.
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Citator
Cited By
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Johnson v. State, 113 So. 3d 31 (Fla. 2d DCA 2012)…ng before the Florida supreme court in State v. Adkins, 71 So. 3d 184 (Fla. 2d DCA), review granted, 71 So. 3d 117 (Fla.2011), we recognize that he may be entitled to raise this issue in a timely motion for postconviction relief. See Gregg v. State, 87 So. 3d 812 (Fla. 2d DCA 2012). SILBERMAN, C.J., and CASANUEVA and KELLY, JJ., Concur.…
Authorities Cited
- State v. Adkins, 71 So. 3d 117 (Fla. 2011)
- State v. Adkins, 71 So. 3d 184 (Fla. 2d DCA 2011)