LARRY EDWARD ZARSKY, PETITIONER,
v.
STATE OF FLORIDA, AND STATE OF FLORIDA DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, RESPONDENTS
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The court held that the habitual traffic offender statutes are constitutional and not ex post facto laws, even when applied to offenses committed before their effective date, as long as some offenses occurred after the effective date.
[1] Habitual traffic offender statutes are not unconstitutional ex post facto laws merely because they provide for enhanced punishment for subsequent offenses.
[2] A litigant cannot challenge the constitutionality of a statute based on features that do not harmfully affect them.
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Join FLexlaw to unlock all legal intelligencePetitioner sought early reinstatement of his driver's license, challenging the constitutionality of the habitual traffic offender statutes under which…
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The petitioner, Larry Edward Zar-sky, presents a petition for certiorari to review a final order of the Department of Highway Safety and Motor Vehicles which denied the petitioner’s application for early reinstatement of his Florida driving privilege. There is no question presented claiming error in the proceedings or on the merits. The sole basis upon which the petition is presented is the petitioner’s contention that Fla.Stat. § 322.264 and Fla. Stat. § 322.27(5), F.S.A., respectively entitled, “Habitual traffic offender defined”, and “Authority of department to suspend or revoke license”, are unconstitutional. He argues, first, that the revocation of his driving privilege is unconstitutional because the statutes have the effect of increasing the punishment for traffic viola*554tions which were committed before July 1, 1972, the statutes’ effective date.
In Cross v. State, 96 Fla. 768, 119 So. 380 (1928), and in Washington v. Mayo, Fla.1956, 91 So.2d 621, the Supreme Court of Florida has upheld habitual offender statutes against attack as ex post facto laws. The Supreme Court held that a statute is not considered an ex post facto law merely because it provides enhanced punishment for subsequent offenses. It should be noted, in the case presently before the court, that two of the traffic violations occurred after the effective date of the statutes (July 1, 1972).
The second line of argument directed to the alleged unconstitutionality of the statutes is appellant’s contention that Fla.Stat. § 322.264 and Fla.Stat. § 322.-27(5), F.S.A., fail to require that any of the moving violations occur after the effective date of the statutes.1 A litigant may not be heard to urge the unconstitutionality of a statute where he is not harmfully affected by the particular features of the statute alleged to be in conflict with the constitution. State ex rel. Hoffman v. Vocelle, 159 Fla. 88, 31 So.2d 52 (1947); Steele v. Freel, 157 Fla. 223, 25 So.2d 501 (1946).
The petitioner relies upon Greene v. State, Fla.1970, 238 So.2d 296, for a holding that the enumerated sections are unconstitutional as an ex post facto law. The holding in the Greene opinion is clearly distinguishable because the court there pointed out:
* * * * * *
“However in the case of these defendants, both felonies were committed before the statute’s effective date. Each was convicted of a second felony after the effective date of the statute. Although both Section 903.132 and the habitual offender act depend upon conviction of the second or subsequent offense, as we noted in Cross, supra, the significant event as far as judging the ex post facto effect is the date of the offense rather than the conviction. Denial of defendants’ release on bail pending appeal attached to offenses that were committed prior to the effective date of the statute. Under these circumstances, the statute as applied to these defendants is:
' “One which, in its operation, makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which in relation to the offense or its consequences, alters the situation of a party to his disadvantage.” ’ ”
Thus, we have considered the petitioner’s contention that the statutes are unconstitutional as an ex post facto law, and we hold that the contention is without merit. The remaining contentions claiming: (1) that the enforcement of the statutes denied the petitioner substantive due process ; (2) that the statutes are unconstitutional as applied to the petitioner because his business required him to drive a great deal; (3) that the statutes are unconstitutional because they inflict a cruel and unusual punishment; and (4) that the statutes are not reasonably related to health, safety, morals and general welfare, are *555also without merit. In our opinion, they do not require extended comment. See Thornhill v. Kirkman, Fla.1953, 62 So.2d 740; Jones v. Kirkman, Fla.1962, 138 So.2d 513.
The petition is denied.
It is so ordered.
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Zarsky v. State of Fla. & State of Fla. Dep't of Hwy. Safety & Motor Vehicles, 300 So. 2d 261 (Fla. 1974)…72, effective date of the Habitual Traffic Offender Act. Accordingly, the order of the District Court of Appeals, Third District, is affirmed. It is so ordered. ADKINS, C. J., and ROBERTS, ERVIN, McCAIN and DEKLE, JJ., concur. . Zarsky v. State, 281 So. 2d 553 (Fla.App.1973). . “An ‘habitual traffic offender’ is any person -whose record, as maintained by the department of highway safety and motor vehicles, shows that such person has accumulated the convictions for separate offenses described in subsectio…
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Cappadona v. Keith, 290 So. 2d 545 (Fla. 4th DCA 1974)…rovisions. Moreover, the fact that Sec. 322.-264 provides enhanced punishment for subsequent offenses does not give rise to an ex post facto law so as to render said statute unconstitutional. In the recent decision of Zarsky v. State, Fla.App.1973, 281 So. 2d 553, our sister court rejected contentions similar to those of the petitioner and upheld the habitual offender statute. The holding in Zarsky is applicable to the case sub judice.1 Petitioner’s contention regarding the necessity of notice and hearing p…
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Gilmore v. State, 390 So. 2d 69 (Fla. 1980)…85. We hold that section 39.04(2)(e)4 as applied in this case did not violate the constitutional prohibition against ex post facto laws. See Bouie v. City of Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 1702, 12 L.Ed. 2d 894 (1964); Zarsky v. State, 281 So. 2d 553, 544 (3d DCA 1973); cf. Greene v. State, 238 So. 2d 296, 300-01 (Fla.1970) (quoting this language from Cross, supra, but reaching a different result because in that case both felonies involved were committed before the statute’s effective date). AF…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cross v. State, 96 Fla. 768 (Fla. 1928)
- State v. Vocelle, 159 Fla. 88 (Fla. 1947)
- Thornhill v. Kirkman, 62 So. 2d 740 (Fla. 1953)
- Greene v. State, 238 So. 2d 296 (Fla. 1970)
- Ishmael Washington v. Mayo, 91 So. 2d 621 (Fla. 1956)
- Jones v. Kirkman, 138 So. 2d 513 (Fla. 1962)
- RAE Steele & W. S. Weaver as Clerk of the Cir. Court of Bay Cnty. v. Freel, 157 Fla. 223 (Fla. 1946)
- Thomas v. State, 157 Fla. 211 (Fla. 1946)
- Matthews v. Stanley, 157 Fla. 223 (Fla. 1946)