Is a Constitutional Challenge Raised for the First Time on Appeal Possible ?
In State v. Johnson, 616 So. 2d 1, 3-4 (Fla. 1993), the court held that an unconstitutional amendment to the habitual offender statute could be attacked for the first time on appeal because it concerned a "facial challenge to a statute's constitutional validity" that did not involve any factual application, and because the unconstitutional statute affected Johnson's due process liberty interest, making its application fundamental error. Id. at 3-4.
In Heggs v. State, 759 So. 2d 620, 624 (Fla. 2000), the court concluded that "under this Court's reasoning in Johnson," the facial invalidity of the 1995 amendments to the sentencing guidelines could be addressed when the constitutional challenge was raised for the first time on appeal.
In Heggs, the court held that chapter 95-184, Laws of Florida, was enacted in violation of the single-subject requirement of article III, section 6 of the Florida Constitution. Id. at 627.
The court determined that defendants sentenced under a revision to the sentencing guidelines contained in chapter 95-184 were entitled to be resentenced if their sentences were in excess of what they could have received under the previous, valid version of the guidelines. Id.