WILLIE E. SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's allegations did not present a substantial constitutional question regarding the burglary statute.
Appellant was charged with burglary under Section 810.02, Florida Statutes, and challenged the statute's constitutionality as vague and overbroad. Aft…
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PER CURIAM.
Appellant was charged with burglary, a violation of Section 810.02, Florida Statutes (1975), and moved to dismiss on the grounds that the statute is unconstitutionally vague and overbroad. The record does not reflect any ruling on appellant’s motion, but apparently it was denied as the case proceeded to trial. Upon conviction, appellant renewed his challenge to the statute by motion for a new trial. Motion was denied and appellant appealed. The First District Court of Appeal then transferred the cause to this court. Since the trial court inherently passed on the validity of Section 810.02, Florida Statutes, we have jurisdiction.1 See Harrell’s Candy Kitchen v. Sarasota-Manatee Air Authority, 111 So. 2d 439 (Fla.1959). Appellant’s sole attack upon the statute is that it fails to declare a violation of the statute a crime. Appellant’s court appointed counsel states:
Although appellant, in his motion to dismiss, attacked the constitutionality of Florida’s burglary statute, counsel is unable to, in good faith, argue this point. Concerning appellant’s question as to whether or not burglary is a crime, counsel would point out that this court has previously held that breaking and entering with intent to commit a misdemeanor is a felony. Copeland v. State, 275 So. 2d 258 (Fla. 1st DCA 1973).
After careful review of the record, we find that appellant’s allegations fail to constitute a substantial constitutional question. See Riddle v. State, 345 So. 2d 1073 (Fla.1977).
Accordingly, the appeal is transferred to the First District Court of Appeal for further action consistent herewith.
It is so ordered.
OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur. . Article V, Section 3(b)(1), Florida Constitution.
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Valentino DeGEORGE v. State, 358 So. 2d 217 (Fla. 4th DCA 1978)…ction 810.011(1) and Section 810.01) are sufficiently informative to those of common understanding. The constitutionality of 810.02, Florida Statutes (1975), is not in question. Riddle v. State, 345 So. 2d 1073 (Fla.1977), also see Simmons v. State, 354 So. 2d 1211 (Fla.1978). Section 810.02 of the Florida Statutes (1975) provides: “810.02 Burglars- “(1) ‘Burglary’ means entering and remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time op…
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Cnty. OF Seminole v. The Honorable Tom Waddell, Jr., 382 So. 2d 357 (Fla. 5th DCA 1980)…for capital cases in 1973 1, we view the respondents’ constitutional attack on Section 925.036 as merely colorable, rather than substantial, and therefore retain jurisdiction. See State v. Opitz, 357 So. 2d 469 (Fla. 2d DCA 1978); Simmons v. State, 354 So. 2d 1211 (Fla.1978). Moreover, the trial judge in this case did not directly pass on the validity of the statute or construe the state or federal constitution in regard to this issue. See Art. V, § 3(b)(1), Florida Constitution. The respondents argue, not w…
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Daytona Beach Racing & Recreational Facilities Dist. & Int'l Speedway Corp. v. Volusia Cnty., 355 So. 2d 175 (Fla. 1st DCA 1978)…e jurisdiction of appeals from circuit court judgments initially passing on the validity of a state statute, including judgments that necessarily and inherently pass on such questions. Article V, Section 3, Constitution of Florida; Simmons v. State, 354 So. 2d 1211 (Fla.1978). Appellees properly called the jurisdictional question to our attention but urge that the constitutionality of the 1973 repealing act has been determined or is otherwise so lacking in substance that it does not impede our exercise of juri…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439 (Fla. 1959)
- Riddle v. State, 345 So. 2d 1073 (Fla. 1977)
- Copeland v. State, 275 So. 2d 258 (Fla. 1st DCA 1973)