State v. Marechal

District Court of Appeal of Florida

State v. Marechal

532 So. 2d 730, 13 Fla. L. Weekly 2236, 1988 Fla. App. LEXIS 4281, 1988 WL 98574

CourtDistrict Court of Appeal of Florida

DecidedSeptember 27, 1988

DocketNo. 87-1676

StatusPublished

Cited by1 cases

This text of 532 So. 2d 730 (State v. Marechal) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Marechal, 532 So. 2d 730, 13 Fla. L. Weekly 2236, 1988 Fla. App. LEXIS 4281, 1988 WL 98574 (Fla. Ct. App. 1988).

Pincite

Opinion

FERGUSON, Judge.

The question presented in this appeal was answered in State v. Cogswell, 521 So.2d 1081 (Fla.1988), which issued after most of the appellees had filed answer briefs. There it was held that section 849.-25, Florida Statutes (1985), which gives a prosecutor the discretion to charge a single act of bookmaking as either a felony or a misdemeanor, is not unconstitutional.

One of the appellees, whose brief was prepared after Cogswell was filed, argues a reliance theory — that the supreme court decision should not be given retroactive effect to convict since (1) the alleged criminal conduct occurred after the trial court in State v. Cogswell had declared the statute unconstitutional, and (2) the trial court in this case declared the statute unconstitutional on the authority of that case. It is conceded by the appellee, however, that the State’s appeal from the Broward County trial court’s ruling in the Cogswell case was pending when the subject bookmaking offenses occurred.

On this point we note, in accordance with settled principles of Florida law, that where there is a change of law between the trial of a case and the final disposition of the appeal, the appellate court must apply the law as it exists at the time of final disposition. Lowe v. Price, 437 So.2d 142 (Fla.1983); City of Miami v. Harris, 490 So.2d 69 (Fla. 3d DCA 1985); Florida E. Coast Ry. Co. v. Rouse, 194 So.2d 260 (Fla.1966). Where a decision holding a statute unconstitutional is subsequently overruled by the highest tribunal, the statute is valid from the date of its enactment. State ex rel. Gillespie v. Bay County, 112 Fla. 687, 151 So. 10 (1933); Hampton v. A. Duda & Sons, Inc., 511 So.2d 1104 (Fla. 5th DCA 1987).

The order declaring section 849.25 unconstitutional is reversed and the cause is remanded for trials.

Free access — add to your briefcase to read the full text and ask questions with AI

FERGUSON, Judge.

The question presented in this appeal was answered in State v. Cogswell, 521 So.2d 1081 (Fla.1988), which issued after most of the appellees had filed answer briefs. There it was held that section 849.-25, Florida Statutes (1985), which gives a prosecutor the discretion to charge a single act of bookmaking as either a felony or a misdemeanor, is not unconstitutional.

One of the appellees, whose brief was prepared after Cogswell was filed, argues a reliance theory — that the supreme court decision should not be given retroactive effect to convict since (1) the alleged criminal conduct occurred after the trial court in State v. Cogswell had declared the statute unconstitutional, and (2) the trial court in this case declared the statute unconstitutional on the authority of that case. It is conceded by the appellee, however, that the State’s appeal from the Broward County trial court’s ruling in the Cogswell case was pending when the subject bookmaking offenses occurred.

On this point we note, in accordance with settled principles of Florida law, that where there is a change of law between the trial of a case and the final disposition of the appeal, the appellate court must apply the law as it exists at the time of final disposition. Lowe v. Price, 437 So.2d 142 (Fla.1983); City of Miami v. Harris, 490 So.2d 69 (Fla. 3d DCA 1985); Florida E. Coast Ry. Co. v. Rouse, 194 So.2d 260 (Fla.1966). Where a decision holding a statute unconstitutional is subsequently overruled by the highest tribunal, the statute is valid from the date of its enactment. State ex rel. Gillespie v. Bay County, 112 Fla. 687, 151 So. 10 (1933); Hampton v. A. Duda & Sons, Inc., 511 So.2d 1104 (Fla. 5th DCA 1987).

The order declaring section 849.25 unconstitutional is reversed and the cause is remanded for trials.

Cite This Page — Counsel Stack

Bluebook (online)

532 So. 2d 730, 13 Fla. L. Weekly 2236, 1988 Fla. App. LEXIS 4281, 1988 WL 98574, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marechal-fladistctapp-1988.

Opinion

Related

Cite This Page — Counsel Stack