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Court rejects wording in land-use measure

Justices block the proposal from getting on the state ballot. They also clarify the law regarding prison terms and "no contest" pleas.

TALLAHASSEE - A campaign to give Florida voters final say over where new homes, shopping malls and roads are built in their communities ran into a brick wall Thursday in the state Supreme Court.

In a 4-3 decision, the high court said the proposed constitutional amendment cannot go on the 2006 ballot because of "emotional rhetoric" in its summary.

The measure's supporters could still rewrite it and try again.

The "Hometown Democracy" measure would have required voter approval for any changes to the plans that cities and counties adopt to manage development. City and county commissions now hold that power.

The high court said the ballot summary contained "impermissible emotional rhetoric that misstates the substance of the amendment."

It said the problem was in the first sentence: "Public participation in local government comprehensive land use planning benefits the conservation and protection of Florida's natural resources and scenic beauty, and the long-term quality of life of Floridians."

The court said land-use plans deal with a lot more than "strictly environmental or aesthetic considerations." The court said those include safety, traffic, sewer service, parks and housing.

The measure still had a long way to go to get onto the ballot: Organizers had collected only about 60,000 of the half-million verified signatures necessary.

Florida cities and counties have warned that the measure would radically limit the power of local government.

A state law that allows for a sentence of life in prison with no parole for child molesters is not cruel or unusual, the court ruled unanimously.

It dismissed an appeal from Darrick Adaway, 39, who received that sentence for a conviction of sexual battery of a child 12 or under. He was 36 when he sexually assaulted an 11-year-old girl while she slept in her bedroom with her siblings.

In his appeal, Adaway argued the sentence was cruel and unusual. The 3rd District Court of Appeal in Miami disagreed; so did the high court.

"Like the United States Supreme Court, we have been reluctant to declare a sentence cruel or unusual simply because of its length," Justice Raoul Cantero wrote for the court.

For a prison sentence to be "cruel and unusual punishment" it must be "grossly disproportionate" to the crime, Cantero said, pointing to decisions by the U.S. Supreme Court.

Adaway's sentence doesn't meet that standard, the court said.

People who plead no contest still have criminal records that can bring harsher punishment if they go before a judge for future crimes, the court ruled.

The 4-3 opinion came in the case of a ticket scalper in Broward County who was sentenced to 16 months in prison based, in part, on his record.

In his past, Sheldon Montgomery had pleaded no contest to aggravated battery, carrying a concealed firearm and possession of cocaine. Each time, the judge did not hand down a specific finding of guilt, widely known as "withholding adjudication."

After he was convicted of two counts of ticket scalping and resisting arrest, Montgomery argued those past cases should not be counted because he had pleaded no contest and the judge had withheld adjudication.

The trial judge disagreed. So did the 4th District Court of Appeal in West Palm Beach.

The 4th DCA decision conflicted with recent rulings by the 1st, 2nd and 5th DCA, which left the final ruling to the Supreme Court. The high court sided with the 4th DCA and quashed the rulings by the three other appellate courts.

The decision could affect "hundreds if not thousands" of other cases, said Jon Peck, a spokesman for Attorney General Charlie Crist.

Peck said judges don't accept a "nolo contendere" plea unless there is some basis for it.

Tom Kurrus, a Gainesville lawyer who is president of the Florida Association of Criminal Defense Lawyers, said the ruling had "wide-ranging impact." He said it guts the concept of no contest pleas and would yank an important negotiating tool from prosecutors and jam up courts with cases that go to trial.

[Last modified March 18, 2005, 00:42:17]