Can the Court Severe the Unconstitutional Portion of An Act to Save the Constitutionality of the Entire Statute ?
In Waldrup v. Dugger, 562 So. 2d 687, 693 (Fla. 1990), an inmate challenged the 1983 amendments to the gain time statutes as a violation of the Ex Post Facto clause of the U.S. Constitution.
The court held that the incentive gain time portion of the legislative scheme violated the prohibition against ex post facto laws. See 562 So. 2d at 692.
To save the constitutionality of the entire statute, we then severed the unconstitutional portion of the act.
Severing the unconstitutional portion was permissible in that case because the severed portion could be replaced with the pre-1983 law, the legislative purpose (regarding gain time) could still be accomplished, the "good" and "bad" portions of the act were not so inseparable that it could be said the Legislature intended to pass one but not the other, and the act remained complete in itself after the invalid provisions were stricken. 562 So. 2d at 693-94.