State v. Franklin

ON HEARING EN BANC

SCHWARTZ, Chief Judge.

Following Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), the trial court granted the defendant’s motion to correct an allegedly illegal sentence by eliminating his designation and consequent sentence as a habitual felony offender, upon the holding that the statute which provided for that result, Chapter 99-188, Laws of Florida, the “Three-Strike Violent Felony Offender Act,” was unconstitutional as violative of the single subject requirement of the Florida Constitution. See Art. Ill, § 6, Fla. Const. While the trial court was bound by Taylor, we are not. After en banc consideration, we hold, directly contrary to Taylor, that the statute is not invalid and therefore reverse the order below.

The issue of whether a multi-section statute violates the “single subject” rule is one of those perplexing legal controversies in which general rules and decisions embracing them may be found, indeed multiplied, on each side of the particular controversy, compare State v. Johnson, 616 So.2d 1 (Fla.1993); State v. Thompson, 750 So.2d 643 (Fla.1999), and cases cited therein; Grant v. State, 770 So.2d 655 (Fla.2000), and the result, and the group of cases to be cited in support of it, lies ultimately in the eye of the judicial beholder. See Poole v. Veterans Auto Sales & Leasing Co., 668 So.2d 189 (Fla.1996), citing Montgomery Ward & Co. v. Pope, 532 So.2d 722, 722-24 (Fla. 3d DCA 1988)(Schwartz, C.J., dissenting). Since this is true, and since the Supreme Court will necessarily itself resolve the conflict with Taylor anyway, it is necessary only rather summarily to announce that we believe that each provision of the statute is sufficiently related to the others and to the general purpose of the act as a whole, and that the constitution is therefore satisfied.

As its name implies, the statute was designed to protect the public from repeat and serious violent felony offenders. With respect to the two of the thirteen sections of the statute questioned by Taylor, section 11, which imposes a duty to transmit the judgment of convicted aliens to federal authorities, is, we think, reasonably related to that purpose because it insures the removal of these felons from the country after their state sentences have been served. Similarly, although less obviously, section 13, which amends the definition of “conveyance” in the burglary statute to include a “railroad vehicle” as well as a “railroad car,” effects the expansion of the definition of the crime of armed burglary, one of the offenses included in the Habitual Felony Offender Act. In any event, the statute as a whole is quite plainly not “a ‘cloak’ for dissimilar legislation having no necessary or appropriate connection with the subject matter,” State v. Lee, 356 So.2d 276, 282 (Fla.1978), and thus does not violate Article III, Section 6, of the Florida Constitution.,

Accordingly, the order below is reversed. On remand, the designation of the defendant as a habitual felony offender shall be restored and his sentence adjusted accordingly.

Reversed, conflict certified.

LEVY, GODERICH, FLETCHER, SHEVIN, and RAMIREZ, JJ., concur.

. Cf. Tormey v. Moore, 824 So.2d 137 (Fla.2002)(ascribing decisive effect to specified "title” of statute).

. The provisions of the Act may be described as follows:

Section 1 provides a name for the Act;

Section 2 amends certain portions of the Prison Releasee Reoffender Act;

Section 3 creates the 'Three-strikes' law and redefines certain aspects of the Habitual Felony Offender Act;

Section 4 creates a minimum mandatory for assault and battery against certain public employees;

Section 5 creates a minimum mandatory for assault and battery against persons over the age of 65;

Section 6 modifies the language in section 790.235 to accommodate the changes made in adopting the '3-Strikes' law;

Section 7 creates the new offense of a ‘Repeat Sexual Batterer’ and corresponding minimum mandatory;

Section 8 amends section 794.011 to accommodate the 'Repeat Sexual batterer' offense;

Section 9 amends section 893.135 to require minimum mandatory sentences for trafficking in certain amounts of illegal drugs;

Section 10 conforms numerous statutes to the amendment made in Section 9;

Section 11 requires the clerk of the court to provide criminal records to United States immigration officers;

Section 12 requires the Governor to advise the public of the penalties set out in the Act; and,

Section 13 amends the definition of a conveyance in the burglary statute;

. The appellant also challenges the appropriateness of section 9, which increases the sentences for marijuana offenses. We have no difficulty in concluding that the legislature acted within its authority in determining that imposing harsher penalties for drug crimes is related to the occurrence of violent offenses in our community.

. Our confidence in the correctness of this result is strengthened by viewing the statute and its components in terms of the ''common sense,” Smith v. Department of Ins., 507 So.2d 1080, 1087 (Fla.1987), which, with respect, we find lacking in Taylor. We cannot overlook that the very basis of the single subject requirement is to prevent legislative "logrolling,” Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla.1991); 1A Norman J. Singer, Statutes and Statutory Construction § 17.1, at 5 (6th ed.2002), that is, to preclude factions in the legislature from securing a majority for two disparate proposals which could not each succeed on its own. It does not require the extensive analysis of the political realities involved in the particular legislation in which several courts (although admittedly not yet the Supreme Court of Florida) have indulged, Ohio Roundtable v. Taft, 119 Ohio Misc.2d 49, 773 N.E.2d 1113 (Com.Pl.2002); Defenders of Wildlife v. Ventura, 632 N.W.2d 707 (Minn.Ct.App.2001), to conclude that it was hardly necessary, for example, for those favoring the habitual offender parts of the statute to attach it to the highly controversial proposal of expanding the definition of a railroad conveyance in order to get them passed. (Any doubt about this proposition is dissipated by the fact that, after Taylor, each of the significant portions of Chapter 99-188, including the cannabis section, see supra note 3, but without the immigration and railroad provisions, was reenacted unanimously in Chapters 02-208, 02-209, 02-210, 02-211, 02-212, Laws of Florida.)

Looking at it another way, the Supreme Court’s observation in Thompson, 750 So.2d at 643, that the statute there was not severa-ble because it was not possible to determine which of the differing subjects the legislature would have intended to survive, plainly has no application here. It is silly to suggest that the legislature would not have preferred to retain the three-strikes law and let the added protection of railroad equipment encompassed by section 13 go — which is what it actually did in 2002. See Green v. State, — So.2d -[, 2003 WL 201345] (Fla. 2d DCA Case no. 2D02-2430, opinion filed, January 31, 2003)[28 FLW D343](Altenbemd, J„ concurring). See also Tormey, 824 So.2d at 142 (applying severability rule to sections beyond the "title” of the act).

By the same token, we see no principled reason why the general rule of harmlessness should not be applied to the present situation; that is, that a legislative "error” in attaching even an unrelated provision to an otherwise valid statute should not have any impact upon those, like this appellant, who are affected only by the valid ones. Similarly, persons like Franklin should be regarded as lacking constitutional "standing” to challenge the efficacy of sections like 9, 11, and 13, which have nothing to do with them. See 10 Fla. Jur.2d Constitutional Law § 73 at 431 (1997) ("Not only must a person be adversely affected by a statute in order to challenge its constitutionality but he also must be affected by the portion of the statute which he attacks. Thus, a person cannot raise an objection to part of a statute unless his rights are in some way injuriously affected thereby....").

Finally, the constitutional facts that Franklin has no right to the passage of legislation in any particular way, and that, to the contrary, the single subject provision affects only the legislators themselves, leads also to consideration of the suggestion that that clause is properly subject only to interpretation and enforcement by the legislature (which frequently engages in just this sort of self-regulation on the floor) and the governor in making his decision on whether to approve a particular bill, rather than the courts. Such a holding would vindicate the sound and often discussed but seldom applied principle that every branch of the government is responsible for the enforcement of pertinent provisions of the constitution. See Campbell v. White, 856 P.2d 255 (Okla.1993)(dissenting opinion); Alexander Bickel, The Least Dangerous Branch (2d ed.1988); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What The Law Is, 83 Geo. L.J. 217 (1994); Bonnie I. Robin-Vergeer, Disposing of The Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S.Cal.L.Rev. 589 (1996); John C. Yoo, Lawyers in Congress, 61 SPG Law & Contemp. Probs. 1 (1998).

. Our determination that Chapter 99-188 is valid makes it unnecessary to decide whether we agree with the holdings of the Fifth District in Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002); Carlson v. State, - So.2d -[, 2002 WL 31202145] (Fla. 5th DCA Case no. 5D01-3089, opinion filed, October 4, 2002)[27 FLW D2162]; and Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-2630 (Fla. Dec. 16, 2002), that the separate reenactment of the provisions of Chapter 99-188 in Chapter 02-210 applies retroactively, or with the, directly contrary holding in Green v. State, - So.2d -, 2003 WL 201345 (Fla. 2d DCA Case no. 2D02-2430, opinion filed, January 31, 2003)[28 FLW D343]. See supra note 4. We may say, however, that even before Green we had serious doubts about the Fifth District's conclusion that Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), which deals with only a change in procedure, supports this result. Those doubts have become even stronger after Green. See In re F.G., 318 Ill.App.3d 709, 252 Ill.Dec. 607, 743 N.E.2d 181 (2000)(holding, on identical issue, that statute “correcting” single subject violation not "retroactive," distinguishing Dobbert). See also Green, -So.2d at - [28 FLW at D346](Casanueva, J., concurring)(indicating that retroactive application of 02-212 would violate the ex post facto clause).