DONALD ANTHONY GIRONDA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida Supreme Court reversed appellant's conviction for attempted abortion because Fla.Stat. § 797.01 was declared unconstitutional in State v. Barquet, decided during the pendency of this appeal.
A defendant convicted under Fla.Stat. § 797.01 for attempted abortion is entitled to reversal and discharge when the statute is declared unconstitutional by this Court during the pendency of his timely appeal.
[1] A defendant convicted under a statute that is subsequently declared unconstitutional by the state supreme court during the pendency of his timely appeal is entitled to re…
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Join FLexlaw to unlock all legal intelligenceAppellant Gironda was adjudged guilty of attempted abortion and sentenced to one year in county jail. His appeal challenging the constitutionality of …
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This appeal transferred to us from the Fourth District Court of Appeal seeks review of a trial court’s order which in-heréntly held Fla.Stat. § 797.01, F.S.A., concerning abortions, constitutional. We have jurisdiction under Fla.Const. art. V, § 4(2), F.S.A.; Evans v. Carroll, 104 So.2d 375 (Fla.1958); and Harrell’s Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So.2d 439 (Fla.1959).
Appellant has been adjudged guilty of attempted abortion and sentenced to one year in the county jail. His appeal contesting the validity of Fla.Stat. § 797.01, F.S.A. was pending when this Court rendered its opinion in State v. Barquet, 262 So.2d 431, filed February 14, 1972. Barquet unequivocally declared Fla.Stat. § 797.01, F.S.A. unconstitutional. In the opinion Mr. Justice Adkins foresaw and discussed other similar pending cases, saying (p. 438):
“The holding in this decision is available to those defendants who have . sought timely review by appeal from an adjudication of guilt, as of the filing date of this opinion.”
Accordingly, the judgment of the trial court is reversed and the cause remanded with instructions to enter an appropriate order releasing and discharging appellant.
It is so ordered.
ROBERTS, C. J., and ERVIN, CARLTON and ADKINS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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D.F. v. State, 623 So. 2d 867 (Fla. 5th DCA 1993)…committed delinquent acts or violation of law, contrary to section 39.112, Florida Statutes (1989) and section 944.40, Florida Statutes.” (emphasis supplied) A criminal conviction based on a nonexistent statute should be reversed. Gironda v. State, 263 So. 2d 193 (Fla.1972) (conviction obtained under statute declared unconstitutional must be reversed); Higginbotham, v. State, 19 Fla. 557 (1882) (conviction invalid where statute repealed after crime committed but before prosecution where no savings clause in…
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T.L.B. v. State, 626 So. 2d 1120 (Fla. 5th DCA 1993)…ctively repealed by section 39.061 on October 1, 1990. In this case, T.L.B. was charged and convicted of escape pursuant to section 39.112 which is a nonexistent criminal statute. Accordingly, the judgment below should be reversed. Gironda v. State, 263 So. 2d 193 (Fla.1972) (conviction obtained under statute declared unconstitutional must be reversed); Higginbotham v. State, 19 Fla. 557 (1882) (conviction invalid where statute repealed after crime committed but before prosecution where no savings clause in s…
Authorities Cited
- Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439 (Fla. 1959)
- State v. Barquet, 262 So. 2d 431 (Fla. 1972)
- Evans v. Carroll, 104 So. 2d 375 (Fla. 1958)