FRANK RUSSO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Russo was convicted of aggravated assault, but this court reversed and remanded for a new trial because his arrest under an unconstitutional city vagrancy ordinance was unlawful, and evidence obtained from that arrest (fingerprints and statements) should have been suppressed.
The arrest was unlawful because Section 17-6 of the Plantation City Code is unconstitutional under Papachristou v. City of Jacksonville and Smith v. State of Florida. The fingerprints should have been suppressed under Davis v. Mississippi, and the statements should have been suppressed because Miranda warnings were not given.
[1] A municipal ordinance identical in provisions to a state statute previously declared unconstitutional is also unconstitutional.
[2] A statute declared unconstitutional is inoperative from the time of its enactment, not merely from the time of the decision declaring it so.
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Join FLexlaw to unlock all legal intelligence“A statute duly declared unconstitutional is inoperative from the time of its enactment and not only and simply from the time of the decision.”
Establishes that retroactive application of unconstitutionality rulings is proper, rejecting the State's retroactivity argument.
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Join FLexlaw to unlock all legal intelligenceRusso was arrested under Section 17-6 of the Code of the City of Plantation, Florida, a vagrancy ordinance identical in substance to Florida Statute 8…
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Being convicted and sentenced for aggravated assault, the defendant appeals. We reverse and remand for a new trial.
After completion of trial court proceedings, F.S. 856.02, Laws of Í969, F.S.A., and the Jacksonville vagrancy ordinance were declared unconstitutional. Smith v. State of Florida (1972), 405 U.S. 172, 92 S.Ct. 848, 31 L.Ed.2d 122; Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110. The defendant here was arrested under authority of Section 17-6, Code of the City of Plantation, Florida, the provisions of which, to all intents and purposes, are identical to the mentioned statute and ordinance. Thus, we summarily hold that Section 17-6, Code of the City of Plantation, is unconstitutional under authority of Papachristou and Smith, supra. It thus follows, as asserted in defendant’s appellate point I, that defendant’s arrest was unlawful. (We further note under the facts of this case — and it is not contended otherwise — that the arresting officer was not justified or authorized to arrest the defendant without a warrant under F.S. 901.15, Laws of 1969, F.S.A., or otherwise.)
The state simply contends that the Papachristou and Smith cases should not be applied here because to do so would be to give a retroactive effect. This position lacks merit. A statute duly declared unconstitutional is inoperative from the time of its enactment and not only and simply from the time of the decision. State ex rel. Nuveen v. Greer, Fla.1924, 88 Fla. 249, 102 So. 739; Amos v. Mathews, Fla.1930, 99 Fla. 1, 126 So. 308.
With an unlawful arrest as a background, we come now to the defendant’s appellate point II. It directs attention to the trial court’s refusal to suppress certain fingerprints and statements made to the police officials. We hold that they should have been suppressed and it was error not to do so. More exactly, the fingerprints should have been suppressed under authority of Davis v. Mississippi (1969), 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. The statements should have been suppressed upon different grounds. The defendant was not afforded the cautions prescribed in Miranda v. State of Arizona (1964), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
We feel that the judgment should be reversed and the case remanded for a new *430trial with same to be conducted in a manner not inconsistent with the views and rulings herein made.
Reversed and remanded.
REED, C. J., and OWEN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991)…er of its decision. We must now determine the effective date of our ruling. Clearly, a penal statute declared unconstitutional is inoperative from the time of its enactment, not only and simply from the time of the court’s decision. Russo v. State, 270 So. 2d 428 (Fla. 4th DCA 1972). In determining whether a statute is void ab initio, however, this Court seemingly has distinguished between the constitutional authority, or power, for the enactment as opposed to the form of the enactment. McCormick v. Bounethe…
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Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003)…nd “power” distinction with this qualification: “Clearly, a penal statute declared unconstitutional is inoperative from the time of its enactment, not only and simply from the time of the court’s decision.” 582 So. 2d at 1174 (citing Russo v. State, 270 So. 2d 428 (Fla. 4th DCA 1972)). Therefore, although the “form” and “power” distinction might have some currency when determining whether equitable circumstances justify making a prospective declaration that a civil statute is unconstitutional, Martinez itself…
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Filmon v. State, 336 So. 2d 586 (Fla. 1976)…4, 535, 29 L.Ed. 746, 752 (1874). This case is free from the gross abuses present in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), but resembles very closely Sears v. State, supra, State v. Neri, supra and Russo v. State, 270 So. 2d 428 (Fla.App.4th, 1972). ADKINS, J., concurs. . I agree with the majority that the equal protection claim lacks merit. There is a substantial question whether this appellant has standing to raise it, in any event. He argues that unconscious persons ar…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966)
- Papachristou v. City of Jacksonville, 405 U.S. 156 (U.S. 1972)
- Davis v. Mississippi, 394 U.S. 721 (U.S. 1969)
- Amos v. Knott, 99 Fla. 1 (Fla. 1930)
- State of Fla. ex rel. John Nuveen v. Greer, 88 Fla. 249 (Fla. 1924)
- Smith v. Florida, 405 U.S. 172 (U.S. 1972)