Hersey v. State

831 So. 2d 679 (2002)

Scott HERSEY, Appellant,
v.
STATE of Florida, Appellee.

No. 5D01-2314.

District Court of Appeal of Florida, Fifth District.

July 26, 2002. Opinion on Grant of Rehearing September 20, 2002. Opinion on Grant of Certification December 6, 2002.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee.

HARRIS, J.

Hersey appeals his conviction and sentence for robbery with a deadly weapon, aggravated battery, and aggravated assault. We affirm his conviction. The State concedes that the scoresheet used at sentencing was in error. We remand for re-sentencing under a corrected scoresheet without consideration of the "three-strike" enhancement. See Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002).

As did the court in Taylor, we certify the issue of the constitutionality of the amendment to the supreme court.

AFFIRMED.

ON MOTION FOR REHEARING

The State has moved for rehearing on the basis that the enactment of chapter 02-210, Laws of Florida, cured chapter 99-188's constitutional infirmity. The State claims that this curative provision applies retroactively. We agree that under the reasoning of Dobbert v. Florida, 432 U.S. 282, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977), it does. We grant rehearing and affirm the sentence below.

REHEARING GRANTED and SENTENCE BELOW AFFIRMED.

ON MOTION FOR CERTIFICATION

We grant appellant's motion for certification and certify the issue of the constitutionality of the curative effect of chapter 02-210, Laws of Florida as it relates to chapter 99-188 to the supreme court as one of exceptional importance.

SHARP, W., and PLEUS, JJ., concur.