In State v. Cogswell, 504 So.2d 464 (Fla. 4th DCA 1987), the court confronted a situation where violation of a misdemeanor gambling statute invariably constituted violation of a separate felony gambling statute.Summary of this case from Carawan v. State
March 11, 1987. Rehearing Denied April 22, 1987.
Appeal from the Circuit Court, Broward County, Robert W. Tyson, Jr., J.
Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and Diane E. Leeds, Asst. Atty. Gen., West Palm Beach, for appellant.
George T. Pallas, Miami, for appellee.
We affirm and note our agreement with the trial court that section 849.25, Florida Statutes (1985) is constitutionally invalid as a due process and equal protection violation to the extent that it permits the prosecution as a felony of the same conduct treated as a misdemeanor by section 849.14, Florida Statutes (1985). The same prohibited conduct of "taking or receiving a bet" may be prosecuted under either statute, depending upon the discretion of the prosecutor. We believe this is the situation contemplated by the Florida Supreme Court in Soverino v. State, 356 So.2d 269, 272 n. 2 (Fla. 1978) when it stated:
We note that appellant might have an equal protection argument if a violation of the misdemeanor statute invariably constituted a violation of the felony statute. Palmore v. United States, 290 A.2d 573 (D.C. 1972). In the instant case, a violation of § 784.03 would not invariably constitute a violation of § 784.07.
DOWNEY, ANSTEAD and GUNTHER, JJ., concur.