Marlow v. State

565 So. 2d 723, 1990 Fla. App. LEXIS 4084, 1990 WL 69720

• Court: District Court of Appeal of Florida
• Decided: May 23, 1990
• Docket: No. 88-3274
• Status: Published

Opinion

ON MOTION TO CORRECT OPINION, CERTIFY, OR WITHDRAW OPINION

POLEN, Judge.

On June 7, 1989, we issued the following opinion in Marlow v. State, 545 So.2d 940 (Fla. 4th DCA 1989):

This appeal is taken from a conviction and sentence under section 893.13(l)(e), Florida Statutes (1987). Appellant unsuccessfully challenged the constitutionality of this statute in the trial court as being violative of the “one-subject rule.”

This court specifically found that the challenged statute was constitutional in State v. Burch, 545 So.2d 279 (Pla. 4th DCa 1989). We further have certified the question to the supreme court.

Accordingly, we affirm the trial court on authority of Burch. Issuance of the mandate is stayed pending disposition of the certified question by the supreme court.

In response to appellant’s motion to correct opinion, certify or withdraw opinion, on July 26, 1989, this court acknowledged error in the June 7, 1989, opinion to the extent that it cited section 893.13(l)(e), Florida Statutes (1987), as being the one challenged, when in fact, it should be section 893.13(l)(a). Notwithstanding this error, we found Burch controlling but deferred final ruling pending the supreme court’s response to the certified question in Burch.

Burch was approved by the Florida Supreme Court in Burch v. State, 558 So.2d 1 (Fla.1990), rehearing denied, April 12, 1990, and is now final. Therefore, we grant appellant’s motion to correct opinion so that we may correct the typographical error, and because Burch is dispositive authority we adhere to the affirmance in our June 7, 1989 opinion. The stay of mandate is now lifted and upon this opinion being final, the mandate will issue.

GLICKSTEIN and STONE, JJ., concur.