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Nitpicking court pokes two holes in a healthy law

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By HOWARD TROXLER, Times Columnist

© St. Petersburg Times
published January 25, 2002


It would be tooooo easy, for the wrong reason, to bash the appeals court that just threw out Florida's "three strikes" law for repeat felony offenders.

So, let's do it for the right reason, which we'll get to in a minute.

The wrong reason would be to accuse the 2nd District Court of Appeal, which is based in Lakeland, of being "liberal" or "bleeding heart."

That was not the nature of the ruling on Wednesday. The court did not say, "Boo hoo! Florida is being too mean to criminals!"

Nope. In fact, I used to know one of the three judges who ruled on the law. He was a trial judge before he got promoted. His nickname back then was "The Time Machine" for the long sentences he handed out.

Instead, the appeals court ruled that there was a fatal flaw in Florida's three-strikes law. Two of the law's 13 sections didn't really have anything to do with sentencing criminals, the court declared.

If true, that would be a problem. Our state Constitution does not allow the Legislature to cram a bunch of unrelated stuff into a single law. Here's the exact language:

Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.

That is a pretty good rule. It means the Legislature cannot try to fool the public, or jam an unrelated bad idea into a popular bill.

Now, let's look at the original act of the Legislature, passed in 1999 and signed with fanfare by Gov. Jeb Bush. It's called the "Three Strikes Violent Felony Offender Act."

Of the act's 13 sections, 11 (according to the appeals court) either deal with repeat offenders, or the general topic of sentencing. Those 11 sections, the court found, are "naturally and logically related to each other."

However, Section 11 requires Florida's court clerks to notify immigration officials when a non-citizen is convicted of a felony. The appeals court declared this to be a "purely administrative subject that is far afield of the act's other provisions."

Booo! Nonsense! The point of the law was to make sure felons are properly punished under the available range of sanctions. Crimes by aliens also carry (or should carry) immigration consequences. The section was logically related to sentencing and punishment.

The other fatal flaw was Section 13, a minor change. In the law against burglary, the definition of the word "conveyance" was changed to include a "railroad vehicle" instead of just a railroad car.

That's it. Railroad vehicle, instead of railroad car. Sound the alarms! This change, the appeals court said, was a new subject, and therefore the entire bill was ruined.

You might ask:

Couldn't they just strike out the bad part?

That is a reasonable question.

In fact, the defendant who won this appeal had been convicted of trafficking in methamphetamine -- a section of the three-strikes law that was valid beyond dispute.

Yet the appeals court could not just cut out the tiny offending part to save the rest. Who are we, Florida's courts ask, to decide which parts of the law the Legislature really wanted to pass the most? (The answer is: You are a bunch of guys in black robes, who do that sort of thing all the time when you're in the mood.)

As it happens, the Legislature is in session, and will trip over itself to fix this law at once. No big loss.

Meanwhile, the appeals court has rightly asked the Florida Supreme Court to settle the case once and for all. The Supreme Court should rule either (1) that chapters 11 and 13 were part of the general topic of crime-fighting, and the appeals court should have butted out, or (2) that it's a no-brainer what the bulk of the law was about, and courts should be able to throw out a tiny bad part to keep the rest. In fact, that might be exactly what the Attorney General asks the Supreme Court to do.

As a final point, you might justly ask: Who are you, Mr. Smarty Pants, to be second-guessing all those smart judges? To which I say, sure, like YOU never booed the umpire?

-- You can reach Howard Troxler at (727) 893-8505 or at troxler@sptimes.com.

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