Fleming v. State

*971On Motion FOR Rehearing En Banc

POLEN, J.

Having previously en banced this case, in order to recede from our prior opinion in Marrisette v. State, 780 So.2d 1020 (Fla. 4th DCA 2001), we now consider en banc Fleming’s issue as to the application of Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (2011). Considering the matter en banc, we deny rehearing for the reasons set forth below.

In his motion for rehearing en banc, Fleming raised for the first time that the statute under which he was convicted, section 893.13, Florida Statutes, is facially unconstitutional based on the…