OMAR JOSE LOPEZ MARQUEZ
v.
STATE OF FLORIDA
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A defendant appealed his conviction under a Palm Beach County ordinance prohibiting solicitation and distribution on public roads, challenging the ordinance as violating his First Amendment rights. After the county repealed the ordinance pending appeal, the State conceded the case should be remanded, but the defendant argued for outright reversal and dismissal. The court agreed with the defendant and reversed and remanded for dismissal.
The court reversed the conviction and remanded the case for dismissal of charges. The repeal of the ordinance obliterated the statute entirely, depriving the court of power to enforce the penalty, and the appropriate remedy is reversal and dismissal rather than mere remand for vacation and nolle prosse.
[1] The repeal of a criminal statute or ordinance pending appeal deprives the appellate court of jurisdiction to enforce the penalty and requires reversal and dismissal of th…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the repeal of the statute pending an appeal will deprive the appellate court of any power to render a judgment by which this penalty may be enforced, and that the effect of a repealing statute is to obliterate the statute repealed as completely as if it had never been enacted”
Citing Pensacola & A.R. Co. v. State, 33 So. 985, 986 (Fla. 1903), establishing the principle that repeal of a statute during appeal eliminates appellate jurisdiction to enforce the conviction
The defendant was charged with violating Palm Beach County Ordinance 18-7 for solicitation and distribution on public roads. The trial court denied hi…
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Helene C. Hvizd, Senior Assistant County Attorney, Palm Beach County Attorney’s Office, for Amicus Curiae Palm Beach County.
On the State’s Concession MAY, J.
The defendant appealed his sentence for violating Palm Beach County Ordinance 18-7 for solicitation and distribution on public roads after the trial court denied his motion to dismiss. He argued the court erred in denying his motion to dismiss because the ordinance violated his first amendment rights. On April 27, 2022, the County repealed the ordinance.
The State has now filed a concession. “[T]he repeal of the statute pending an appeal will deprive the appellate court of any power to render a judgment by which this penalty may be enforced, and that the effect of a repealing statute is to obliterate the statute repealed as completely as if it had never been enacted . . . .” Pensacola & A.R. Co. v. State, 33 So. 985, 986 (Fla. 1903). The State concedes the case should be remanded with instructions for the trial court to vacate the withhold of adjudication, permit the defendant to withdraw his plea, and the State to nolle prosse the charge. The defendant has responded and indicated we should simply reverse and remand the case for dismissal of the charges. Id. (“It follows from what has been said that the judgment of the circuit court in said cause must be reversed, and the cause dismissed.”). We agree with the defendant. We therefore reverse and remand the case for that purpose.
Reversed and remanded. WARNER and CIKLIN, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing.