ROGER LOUIS SEXTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2014-08-13
No. 2D13-3912
WALLACE and SLEET, JJ., Concur.
146 So. 3d 515 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Roger Louis Sexton appealed an order modifying his probation to require completion of a batterers' intervention program, arguing his 2011 conviction for possession of a firearm by a convicted felon should be vacated based on a First District decision finding the relevant statute unconstitutionally vague. The Second District Court of Appeal affirmed, holding that the First District's decision was limited to an as-applied challenge not applicable to Sexton's case and that Sexton failed to preserve his constitutional argument for appellate review.


Holding

The court held that the Weeks decision was limited to an as-applied constitutional challenge concerning antique firearms and did not result in facial unconstitutionality of section 790.23(1). Additionally, Sexton forfeited his constitutional argument by failing to raise and obtain a ruling on it in the trial court, and thus was not entitled to raise it on appeal.


Headnotes

[1] A defendant must preserve an as-applied constitutional challenge to a statute in the trial court to raise it on appeal.

[2] An appellate court's review of an order modifying probation is generally limited to issues related to the revocation or modification of probation.

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Key Quotes

“the definition of 'antique firearm,' which was incorporated into the definition of 'firearm' and, thus, into this substantive offense, rendered section 790.23 unconstitutionally vague”

Explains the basis of the First District's Weeks decision and why it was limited to an as-applied challenge

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Facts & Procedural History

Sexton pleaded no contest in 2011 to possession of a firearm by a convicted felon, arising from events in May 2010, and received a five-year probation…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

Roger Louis Sexton appeals an order entered in 2013 modifying his five-year term of probation to add completion of a batterers’ intervention program. The probation was the result of Mr. Sexton’s no contest plea in 2011 to the offense of “possession of a firearm by convicted felon,” which arose from events in May 2010. See § 790.23(1), Fla. Stat. (2009). He argues on appeal, as a matter of unpreserved error, that his 2011 judgment of conviction must be vacated in light of the First District’s decision in Weeks v. State, 39 Fla. L. Weekly D35 (Fla. 1st DCA Dec. 26, 2013), motion for clarification filed, No. 1D12-3333 (Fla. 1st DCA 2013). That decision, which is still pending in the First District, held that “section 790.23 is unconstitutionally vague because the phrase ‘firearm’ as elsewhere defined does not give adequate notice of what type of firearm may be lawfully carried by a convicted felon and, because of the imprecision, may invite arbitrary and discriminatory enforcement.” Id. at D36-D37.

In Walker v. State, 137 So.3d 594, 595 (Fla. 2d DCA 2014), we explained that in Weeks the First District had “seemingly found” that the relevant statute was unconstitutional as applied. That explanation appears sound because the decision in Weeks was based on that court’s conclusion *516that the definition of “antique firearm,”1 which was incorporated into the definition of “firearm”2 and, thus, into this substantive offense, rendered section 790.23 unconstitutionally vague. See Weeks, 39 Fla. L. Weekly at D35-D36. Because the constitutional concern addressed in Weeks appears to arise only in cases involving firearms that arguably might be regarded as a replica of an antique firearm, the issue does not result in the facial unconstitutionality of section 790.23(1). Thus, in Walker, we concluded that the holding in Weeks was simply inapplicable to the facts in our case. In so doing, we implicitly rejected an argument that the decision in Weeks declares the statute facially unconstitutional. Walker, 137 So.3d at 595. To date, neither the First District nor this court has held that section 790.23(1) is facially unconstitutional.

In an appeal from an order entered on a violation of probation, our scope of review is generally limited to issues related to the revocation or modification of probation. Even if we can review the constitutionality of section 790.23(1) at this late stage of the proceedings, the law is clear that a party must preserve an as-applied constitutional challenge to a statute in the trial court. See Fla. Dep’t of Agrie. & Consumer Sens. v. Mendez, 98 So.3d 604, 608 (Fla. 4th DCA 2012). Because Mr. Sexton did not raise this issue in the trial court and obtain a ruling from that court, he is not entitled to raise it in this appeal.

Affirmed.

WALLACE and SLEET, JJ., Concur.


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Citator

Cited By

  • Kraay v. State, 148 So. 3d 789 (Fla. 1st DCA 2014)
    …ms because the phrases 'firearm' and 'antique firearm' defined in chapter 790, do not give adequate notice of what constitutes a permissible replica of an antique firearm which may be lawfully carried by a convicted felon_”); accord Sexton v. State, 146 So. 3d 515, 39 Fla. L. Weekly D1712 (Fla. 2d DCA Aug. 13, 2014) ("Because the constitutional concern addressed in [the original opinion in] Weeks appears to arise only in cases involving firearms that arguably might be regarded as a replica of an antique firea…
  • Demello v. State, 154 So. 3d 373 (Fla. 2d DCA 2014)
    …PER CURIAM. Affirmed. See Sexton v. State, 146 So. 3d 515 (Fla. 2d DCA 2014); Walker v. State, 137 So. 3d 594 (Fla. 2d DCA 2014). ALTENBERND, SILBERMAN, and BLACK, JJ., Concur.…
  • Rodrigues Elijah Wright v. State, 174 So. 3d 558 (Fla. 4th DCA 2015)
    …e. MAY and KLINGENSMITH, JJ., concur. . . . We also reject Appellant's challenge to the constitutionality of section 790.023, Florida Statutes, as he did not raise it in the trial court, and we deem it an as-applied challenge. See Sexton v. State, 146 So. 3d 515, 516 (Fla. 2d DCA 2014).…

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