DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
OMAR JOSE LOPEZ MARQUEZ,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D21-1287
[June 1, 2022]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; August A. Bonavita, Judge; L.T. Case No.
502020CO003740A.
Carey Haughwout, Public Defender, and Elijah Giuliano, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and MaryEllen M. Farrell
and Sorraya M. Solages-Jones, Assistant Attorneys General, West Palm
Beach, for appellee.
Helene C. Hvizd, Senior Assistant County Attorney, Palm Beach County
Attorney’s Office, for Amicus Curiae Palm Beach County.
On the State’s Concession
MAY, J.
The defendant appealed his sentence for violating Palm Beach County
Ordinance 18-7 for solicitation and distribution on public roads after the
trial court denied his motion to dismiss. He argued the court erred in
denying his motion to dismiss because the ordinance violated his first
amendment rights. On April 27, 2022, the County repealed the ordinance.
The State has now filed a concession. “[T]he repeal of the statute
pending an appeal will deprive the appellate court of any power to render
a judgment by which this penalty may be enforced, and that the effect of
a repealing statute is to obliterate the statute repealed as completely as if
it had never been enacted . . . .” Pensacola & A.R. Co. v. State, 33 So. 985,
986 (Fla. 1903). The State concedes the case should be remanded with
instructions for the trial court to vacate the withhold of adjudication,
permit the defendant to withdraw his plea, and the State to nolle prosse
the charge. The defendant has responded and indicated we should simply
reverse and remand the case for dismissal of the charges. Id. (“It follows
from what has been said that the judgment of the circuit court in said
cause must be reversed, and the cause dismissed.”). We agree with the
defendant. We therefore reverse and remand the case for that purpose.
Reversed and remanded.
WARNER and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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