STATE of Florida, Appellant,
v.
Robert COGSWELL, Appellee.
No. 4-86-1029.
District Court of Appeal of Florida, Fourth District.
March 11, 1987. Rehearing Denied April 22, 1987.*465 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.
PER CURIAM.
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.