600 So. 2d 1228 | Fla. Dist. Ct. App. | 1992
Appellant challenges his sentence on the grounds that (1) the habitual offender and habitual violent felony offender statutes violate due process, equal protection and double jeopardy, and (2) the imposition of two 25 year habitual violent felony offender sentences, each with a mandatory minimum sentence of 10 years to run consecutively for the sale and possession of cocaine, constitutes cruel or unusual punishment under Article I, Section 17 of the Florida Constitution. We affirm the sentence.
This court has rejected appellant’s constitutional challenges to the habitual offender and habitual violent felony offender provisions. Barber v. State, 564 So.2d 1169, 1171 (Fla. 1st DCA 1990), rev. denied, 576 So.2d 284 (Fla.1990); Love v. State, 569 So.2d 807 (Fla. 1st DCA 1990); Perkins v. State, 583 So.2d 1103 (Fla. 1st DCA 1991), jurisdiction accepted, 590 So.2d 421 (Fla.1991), review pending, No. 78,613; Ross v. State, 579 So.2d 877 (Fla. 1st DCA 1991), jurisdiction accepted, 589 So.2d 292 (Fla.1991), review pending, No. 78,179; and Tillman v. State, 586 So.2d 1269 (Fla. 1st DCA 1991) (certifying question), review pending, No. 78,715 (Fla.1991); Raulerson v. State, 589 So.2d 369 (Fla. 1st DCA 1991), jurisdiction accepted, 593 So.2d 1052 (Fla.1992), review pending, No. 79,051; Becker v. State, 592 So.2d 1266 (Fla. 1st DCA 1992) (question certified); Reeves v. State, 593 So.2d 232 (Fla. 1st DCA 1992) (question certified). Again, however, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, we certify the following questions to be of great public importance:
1. Does it violate a defendant’s substantive due process rights when he is classified as a violent felony offender pursuant to section 775.084, and thereby subjected to an extended term of imprisonment, if he has been convicted of an enumerated violent felony within the previous five years, even though his present offense is a nonviolent felony?
2. Does section 775.084(l)(b) violate the constitutional protection against double jeopardy by increasing a defendant’s punishment due to the nature of a prior offense?
Appellant contends that Florida’s prohibition against “cruel or unusual” punishment, in Article I, Section 17 of the Florida Constitution, is distinguishable from the federal constitution’s prohibition against “cruel and unusual punishment” based on the disjunctive “or” between terms “cruel” and “unusual”. However, appellant cites no authority for his assertion that the “cruel or unusual” punishment clause in the Florida Constitution requires (or allows) proportionality review in non-death penalty cases.
AFFIRMED, with questions certified.
. Although several Florida cases have acknowledged the Solem proportionality test, many of those cases limit the scope of Solem and all of those cases were decided before Harmelin which overruled Solem. Long v. State, 558 So.2d 1091, 1092 (Fla. 5th DCA 1990) (even if Solem is applicable because burglary is nonviolent felony, punishment does not meet criteria for proportionality analysis); State v. Burch, 545 So.2d 279 (Fla. 4th DCA 1989) (distinguishing Solem from the Florida statute based on fact that Florida statute does not foreclose the possibility of rehabilitation and gain time), approved by, 558 So.2d 1 (Fla.1990); State v. Nickerson, 541 So.2d 725 (Fla. 1st DCA 1989) (trial court could not depart downward on basis that guidelines sentence was disproportionate); Vickery v. State, 539 So.2d 499 (Fla. 1st DCA 1989) (uniqueness of conduct proscribed by Florida’s RICO Act makes it difficult — if not impossible— to apply the Solem proportionality analysis), rev. denied, 549 So.2d 1014 (Fla.1989); Kendry v. State, 517 So.2d 78 (Fla. 1st DCA 1987) (notwithstanding the harshness of the penalty, nothing in Solem would mandate a result contrary to prior case law which has consistently upheld mandatory minimum sentences against constitutional challenges); Mick v. State, 506 So.2d 1121 (Fla. 1st DCA 1987), and Bloodworth v. State, 504 So.2d 495 (Fla. 1st DCA 1987) (both found Solem applies only to non-violent felonies).