262 So. 2d 264 | Fla. Dist. Ct. App. | 1972
Appellant seeks review of a judgment of conviction and sentence based upon a jury verdict finding him guilty of committing a crime against nature in violation of F.S. Section 800.01, F.S.A.
During the course of his trial after the State rested its case in chief appellant moved the court for the entry of a judgment of acquittal on the ground that F.S. Section 800.01, F.S.A., under which he was charged and was then being prosecuted was unconstitutionally vague and indefinite. This motion was denied and the case proceeded to final conclusion which resulted in a jury verdict of guilty as charged. One of the grounds urged by appellant in his motion for new trial was that the court had erred in denying his motion for judgment on the grounds that the statute under which he was charged was unconstitutional and void. The motion for new trial was likewise denied, appellant was adjudged guilty, and he was sentenced to be imprisoned in the state prison for a term of years. A timely notice of appeal was filed in which the correctness of the trial court’s rulings made during the course of the proceeding is challenged.
During the pendency of this appeal the Supreme Court of Florida rendered its decision in Franklin v. State
“Accordingly we must, without any criticism of the able trial jurist who was following the decisions then existing, reverse the two judgments adjudging the defendants of being guilty of a felony and remand the causes to the trial court with directions to enter a judgment of guilty of Section 800.02 which is a misdemeanor, and to impose sentence accordingly. In view of our former decisions, this judgment holding the felony statute void is not retroactive, but prospective only.”
The question presented for our decision is what was meant by the Supreme Court when, in the above-quoted concluding paragraph of its opinion, it stated that its judgment holding the statute to be void is not retroactive but prospective only. Appellee-State contends that since appellant stands convicted under a judgment and sentence rendered prior to the Supreme Court’s opinion striking down the statute on constitutional grounds, the judgment must therefore stand under the nonretroactive provision of the court’s judgment. On the contrary, appellant contends that the judgment here appealed has not become final and the rule of law as announced by the Supreme Court in Franklin is therefore applicable to this case under accepted principles recognized by the courts of Florida.
In the case of Florida East Coast Railway Company v. Rouse,
“ ‘We recognize the general and Florida rule to be that an appellate court, in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the time of the appellate disposition, and not according to the law prevailing at the time of rendition of the judgment appealed.’ ”
The rule pronounced by the Supreme Court in Florida East Coast Railway Company was subsequently followed by the Second District Court of Appeal in Tsavaras v. Lelekis.
In Linkletter v. Walker
It is our interpretation of the judgment rendered by the Supreme Court of Florida in Franklin v. State, supra, that the nonretroactive effect of that judgment holding unconstitutional the statute involved herein applies only to judgments of conviction and sentence which have become final and are no longer open to appellate review. The prospective application of the court’s
Based upon the foregoing authorities, the judgment appealed herein is reversed and the cause remanded for the imposition of an appropriate sentence pursuant to the provisions of F.S. Section 800.02, F.S.A., proscribing unnatural and lascivious acts, as approved by the Supreme Court in Franklin, supra.
Reversed.
. F.S. § 800.01, F.S.A.
“Crime against nature; punishment
Whoever commits the abominable and detestable crime against nature, either with mankind or with beast, shall be punished by imprisonment in the state prison not exceeding twenty years.”
. Franklin v. State (Fla.1971), 257 So.2d 21.
. Florida East Coast Railway Company v. Rouse (Fla.1967), 194 So.2d 260, 262.
. F.S. § 768.06, F.S.A.
. Tsavaras v. Lelekis (Fla.App.1971), 246 So.2d 789.
. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601.
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933.