Haberstroh v. State

PER CURIAM.

This is an appeal from a conviction and a departure sentence of fifteen years’ imprisonment for burglary of a dwelling. Appellant was also declared an habitual felony offender.

Two points are presented for our consideration: 1) denial of appellant’s motion for acquittal was error because the evidence was insufficient to prove the charge of burglary beyond a reasonable doubt, and 2) the habitual offender statute is facially unconstitutional because it penalizes defendants for their status as such.

We have carefully considered the evidence and find no merit in appellant’s first point. The evidence is adequate to support, denial of a motion for judgment of acquittal.

As to the other point, appellant has no standing to attack the constitutionality of the statute, section 775.084(4)(e) (Supp. 1988), as amended by Chapter 88-131, section 6, Laws of Florida, because the statute is not applicable to the crime involved herein, which predates the adoption of the amended statute.

Accordingly, the judgment of conviction and sentence appealed from are affirmed.

DOWNEY, DELL and GUNTHER, JJ., concur.