Summary
In Hull v. State, 349 So. 3d 459, 464-65 (Fla. 2d DCA 2022), a divided panel "reluctantly affirm[ed]" a trial court’s order denying a sexual offender’s motion to dismiss a failure to register charge, concluding that, under the prior version of section 943.0435(1), "a person who has failed to pay court costs is not relieved of the requirement to register and report as a sexual offender."
Summary of this case from State v. CroseOpinion
No. 2D20-2772
06-10-2022
Justin Marshall HULL, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender; Eric S. Gardner, Jr., Assistant Public Defender; and Daniel Muller, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General; Jeffrey Paul DeSousa, Chief Deputy Solicitor General; Kevin A. Golembiewski, Deputy Solicitor General (withdrew after briefing); and Rachel R. Siegel, Deputy Solicitor General (substituted as counsel of record), Tallahassee, for Appellee.
Howard L. Dimmig, II, Public Defender; Eric S. Gardner, Jr., Assistant Public Defender; and Daniel Muller, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General; Jeffrey Paul DeSousa, Chief Deputy Solicitor General; Kevin A. Golembiewski, Deputy Solicitor General (withdrew after briefing); and Rachel R. Siegel, Deputy Solicitor General (substituted as counsel of record), Tallahassee, for Appellee.
LABRIT, Judge.
Background
In 2008, Justin Hull was sentenced to eight years’ probation after he pled guilty to lewd or lascivious battery of a minor. Mr. Hull's judgment and sentence imposed various "mandatory court costs," which included a "public defender fee," "filing fees," "service charges," "the cost of prosecution," and other administrative costs. Mr. Hull has not paid those costs, and they remain outstanding.
About a year after Mr. Hull pled guilty, the trial court revoked his probation and sentenced him to four years in prison. Upon his release from prison, Mr. Hull was required to—and did—register and report as a sexual offender. However, in 2019, he was charged with violating section 943.0435(14)(a), Florida Statutes (2019), for failing to report biannually as a sexual offender.
Mr. Hull moved to dismiss the charge, arguing that he didn't qualify as a "sexual offender" as defined by section 943.0435(1)(h) 1 because he hadn't paid the costs assessed in his underlying case and thus hadn't been "released from the sanction imposed" in that case. Mr. Hull relied upon this court's decision in State v. James , 298 So. 3d 90 (Fla. 2d DCA 2020) (holding that defendant who had not paid fine imposed as part of sanction for lewd or lascivious molestation conviction had not been released from his sanction "as a whole" and therefore did not qualify as a sexual offender for registration and reporting purposes). The trial court denied Mr. Hull's motion, finding James inapposite because it involved failure to pay fines, not costs. Mr. Hull then pled guilty to the charge of failing to register and reserved the right to appeal the denial of his motion to dismiss. This appeal ensued. We affirm for the reasons discussed below.
This court's decision in James
In James , we considered the 2017 version of subsection 943.0435(1)(h)1, which defined "sexual offender" as a person who has been convicted of a qualifying offense and who "has been released ... from the sanction imposed" for that offense. The statute further provided that the term sanction "includes, but is not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility." § 943.0435(1)(h) 1.a.(II). After being convicted of attempted lewd or lascivious molestation, Mr. James was sentenced to fifteen years’ prison and a $10,000 fine. James , 298 So. 3d at 91. Following his release from prison, Mr. James was charged with failing to report as a sexual offender. Id . Mr. James moved to dismiss the charge, arguing that he did not qualify as a sexual offender under section 943.0435(1)(h) 1 because he had not paid the $10,000 fine and therefore had not been released from "the sanction imposed" for his underlying conviction. Id .
The relevant provisions of subsection 943.0435(1)(h)1 were unchanged between 2017 and 2019.
The trial court granted Mr. James’ motion and dismissed the charges, and this court affirmed. Id . Section 943.0435(1)(h)1.a.(II) defined "sanction" to specifically include fines, so we concluded that the fine was "a portion of" Mr. James’ sanction. James , 298 So. 3d at 92. Because the statute "mandates that the person be released from ‘the sanction imposed’ "—as opposed to a sanction imposed—we held that "Mr. James does not qualify as a ‘sexual offender’ because his sanction, which includes a $10,000 fine, has not been released." James , 298 So. 3d at 93–94 (emphasis added). We acknowledged that the legislature "may not have intended" the outcome whereby a person otherwise required to register and report as a sexual offender could unilaterally avoid the registration and reporting requirements simply by choosing not to pay a fine. Id . But we explained that was an issue for legislative, not judicial, resolution. Id . at 94.
The clarifying amendment to section 943.0435
During the pendency of this appeal and in the legislative session immediately following our James decision, the legislature expressly declared that James is "contrary to legislative intent" and that a "person's failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to s. 943.0435, Florida Statutes." See ch. 2021-156, § 1, Laws of Fla. The legislature specifically stated that it
intends that a person must register as a sexual offender pursuant to s. 943.0435, Florida Statutes, when he or she has been convicted of a qualifying offense and, on or after October 1, 1997, has:
(1) No sanction imposed upon conviction; or
(2) Been released from a sanction imposed upon conviction.
Ch. 2021-156, § 1, Laws of Fla. The legislature also amended paragraph (h) of subsection (1) of section 943.0435 to define "sexual offender" as a person who has committed a qualifying offense and
The text of section (1) of chapter 2021-156 has been relegated to a footnote to the published statutory enactment. See § 943.0435 n.1, Fla. Stat. (2021).
[h]as been released on or after October 1, 1997, from a the sanction imposed for any conviction ... and does not otherwise meet the criteria for registration as a sexual offender under chapter 944 or chapter 985. For purposes of this sub-sub-subparagraph(I), a sanction imposed in this state or in any other jurisdiction meansincludes, but is not limited to, a fine,probation, community control, parole, conditional release, control release, or incarceration in a state prison, federal prison, private correctional facility, or local detention facility. If no sanction is imposed the person is deemed to be released upon conviction.
Ch. 2021-156, § 2, Laws of Fla. (corresponding to § 943.0435(1)(h) 1.a.(II), Fla. Stat. (2021)).
Discussion
We review questions of statutory interpretation de novo. See Richards v. State , 288 So. 3d 574, 575 (Fla. 2020). The dispositive question in this case is whether we should consider the legislature's clarifying amendment in our interpretation of the preamendment version of the statute. We answer this question in the affirmative, recognize that our decision in James has been abrogated, and affirm the order denying Mr. Hull's motion to dismiss.
Mr. Hull argued below that fines and costs are interchangeable so the term "sanction" in section 943.0435(1)(h) 1.a.(II) should be construed to include costs. The State responded that costs are not included in—and should not be read into—the statutory definition of sanction. Mr. Hull also argued that the holding of James should extend to costs as well as fines, and the State resisted, contending inter alia that the holding of James should be limited to fines. The trial court agreed with the State.
See James , 298 So. 3d at 91 (stating that the "fine was not imposed as a lien, nor was it imposed as a cost").
On appeal, the State's primary focus has shifted to the legislature's 2021 clarifying amendment. The State argues that under the "recent-controversy" rule, the legislature's clarification of its intent—not our decision in James —controls the interpretation of section 943.0435. See, e.g., Madison at Soho II Condo. Ass'n, v. Devo Acquisition Enters. , 198 So. 3d 1111 (Fla. 2d DCA 2016). As we explained in Madison , "the legislature's clarification of the prior version of a statute after a recent controversy, such as a court's interpretation of the statute in contravention of the legislature's intent, is permissible." Id . at 1116.
Under this rule, when "an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof." See Lowry v. Parole & Prob. Comm'n , 473 So. 2d 1248, 1250 (Fla. 1985) ; see also Madison at Soho II Condo. Ass'n v. Devo Acquisition Enters. , 198 So. 3d 1111, 1116 (Fla. 2d DCA 2016).
Madison guides our analysis and informs our resolution of this case. There, the trial court granted summary judgment for the defendant unit owner in a dispute over unpaid condominium assessments, relying on St. Croix Lane Trust v. St. Croix at Pelican Marsh Condominium Ass'n , 144 So. 3d 639 (Fla. 2d DCA 2014), a decision of this court interpreting section 718.116, Florida Statutes (2011). Madison , 198 So. 3d at 1114–15. While the Madison appeal was pending, the legislature—in the first legislative session following our St. Croix Lane Trust decision—passed an amendment clarifying section 718.116. Id. at 1113. On appeal, the plaintiff condominium association invoked the recent-controversy rule to argue that the amendment required us to interpret section 718.116 at odds with the decision in St. Croix Lane Trust ; we agreed and reversed the judgment. In so doing, we addressed several key principles that apply with equal force here.
We first acknowledged that "it may appear that a court's consideration of a legislature's clarification of its intent with regard to the passage of an earlier statute is akin to retroactively applying an amended statute to pending litigation," which creates potential constitutional concerns. See Madison , 198 So. 3d at 1116. We determined that retroactivity principles were not in play because the association was asking "us to revisit our prior construction of the pre-amended section 718.116(3), not to retroactively apply a newer version of [it]." Id. The same is true here—the State is not asking us to retroactively apply the 2021 version of the statute, it is asking us to revisit our prior construction of the preamendment version of the statute.
Next, we addressed the unit owner's argument that the judgment should be affirmed because principles of stare decisis required the trial court to apply St. Croix Lane Trust at the time it entered judgment. Id . at 1117. As we explained, "The clear legislative directives, coupled with the close temporal proximity of the amendment to St. Croix Lane Trust , leave no room for any ... reasonable conclusion" other than that the legislature acted in response to the controversy arising out of this court's construction of the statute in St. Croix Lane Trust . Id. Thus, we decided "to reexamine St. Croix Lane Trust in light of the legislature's recent clarification of its intent." Id. at 1118. Upon doing so, and "guided by the legislature's recent clarifying amendment," we concluded that the "only ... possible outcome" was that the "legislature abrogated our interpretation of section 718.116(3) in St. Croix Lane Trust ." Id. at 1119.
The present situation is more compelling than the situation in Madison . There, the legislature clarified its intent when it amended the statute during the pendency of the appeal and in the first legislative session following St. Croix Lane Trust , but it did not expressly mention St. Croix Lane Trust . Here, the legislature not only clarified its intent by amending the statute during the pendency of the appeal and in the first legislative session immediately following James , it expressly stated that James "is contrary to legislative intent." Ch. 2021-156, § 1, Laws of Fla. The legislature also specifically clarified its intent that "a person's failure to pay a fine does not relieve him or her of the requirement to register as a sexual offender pursuant to s. 943.0435." Id.
Given our fundamental mandate to construe statutes so as to "give effect to legislative intent," it is proper to reexamine James in light of the legislature's express disavowal of James and specific clarification of its intent. See Madison , 198 So. 3d at 1118 ; see also Finley v. Scott , 707 So. 2d 1112, 1116–17 (Fla. 1998) (reasoning that although 1993 version of statute applied to case, 1994 amendment clarified legislative intent and therefore was appropriately considered in construing 1993 version of statute). And we conclude that the "legislature abrogated our interpretation of" section 943.0435(1)(h) 1 in James . See Madison , 198 So. 3d at 1119 ; see also Regan v. ITT Indus. Credit Co. , 469 So. 2d 1387, 1390–91 (Fla. 1st DCA 1984) (stating that courts are "bound to interpret and apply the law as pronounced by the legislature" and concluding that court was not bound to follow a supreme court case that the legislature had expressly disapproved), approved , 487 So. 2d 1047 (Fla. 1986) ; accord CVS EGL Fruitville Sarasota FL, LLC v. Todora , 124 So. 3d 289, 292 (Fla. 2d DCA 2013).
Mr. Hull resists the recent-controversy rule, arguing that the 2021 legislature could not "clarify" the intent of the 1997 legislature that originally enacted the statute because the "makeup" of the 1997 legislature differed from that of the 2021 legislature. See, e.g., Parole Comm'n v. Cooper , 701 So. 2d 543, 544–45 (Fla. 1997) ("[I]t is inappropriate to use an amendment enacted ten years after the original enactment to clarify original legislative intent."). Cooper and the other authorities upon which Mr. Hull relies are inapposite. Those cases do not implicate the "recent-controversy" rule because none of them examined legislative action taken in response to a judicial interpretation of the statute or other recent controversy regarding its interpretation.
M.W. v. Davis , 756 So. 2d 90, 103 n.26 (Fla. 2000) ; State Farm Mut. Auto. Ins. Co. v. Laforet , 658 So. 2d 55, 62 (Fla. 1995) ; Ramcharitar v. Derosins , 35 So. 3d 94, 99 (Fla. 3d DCA 2010).
The supreme court recognized this critical distinction in State Farm Mutual Automobile Insurance Co. v. Laforet , 658 So. 2d 55, 62 (Fla. 1995) ("[A] clarifying amendment to a statute that is enacted soon after controversies as to [its] interpretation ... arise may be considered as a legislative interpretation of the original law and not as a substantive change." (citing Lowry , 473 So. 2d at 1248 )). Cf. Palma Del Mar Condo. Ass'n No. 5 of St. Petersburg, Inc. v. Comm'l Laundries of W. Fla., Inc. , 586 So. 2d 315, 317 (Fla. 1991) (holding that district court of appeal properly considered clarifying amendment to interpret preamendment version of statute where "there had been a judicial interpretation after the original enactment of [the statute] which the legislature believed was contrary to" legislative intent); accord G.E.L. Corp. v. Dep't of Envtl. Prot. , 875 So. 2d 1257, 1263 n.3 (Fla. 5th DCA 2004) (collecting cases); see also Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co. , 945 So. 2d 1216, 1230 (Fla. 2006) (stating that "[s]trict adherence" to the rule that the court is reluctant to consider an amendment "passed long after the original act was made law ... has not been followed, but only when a subsequent amendment is enacted soon after a controversy regarding a statute's interpretation has arisen " (emphasis added)). Because the legislature clarified its intent immediately following our issuance of James , and specifically pronounced that James is contrary to legislative intent, we are bound to consider the legislature's clarified intent in our interpretation of the preamendment version of section 943.0435(1)(h). See Madison , 198 So. 3d at 1116 ("Florida courts have ’the right and duty’ to consider the legislature's recently enacted statute clarifying its intent ... of a statute, which was passed soon after a controversy arose in the interpretation of that original, pre-amended statute." (first quoting Ivey v. Chicago Ins. Co. , 410 So. 2d 494, 497 (Fla. 1982), then citing Finley v. Scott , 707 So. 2d 1112, 1116–17 (Fla. 1998) ).
Our dissenting colleague raises important constitutional considerations concerning the operation of the recent controversy rule in criminal cases. Mr. Hull, however, didn't raise those issues so we are precluded from considering them. See generally Shere v. State , 742 So. 2d 215, 218 n.6 (Fla. 1999) ("[F]or most of these claims, Shere did not present any argument or allege on what grounds the trial court erred in denying these claims. We find that these claims are insufficiently presented for review."); Johnson v. State , 660 So. 2d 637, 645 (Fla. 1995) ("The law is well settled that failure to raise an available issue constitutes an admission that no error occurred."); I.R.C. v. State , 968 So. 2d 583, 588 (Fla. 2d DCA 2007) ("In considering I.R.C.’s appeal, we are limited to the specific issues that I.R.C. has raised."). Thus, while we may share many of the concerns Judge Atkinson's opinion discusses, we must reluctantly affirm the result the trial judge reached. See Firestone v. Firestone , 263 So. 2d 223, 225 (Fla. 1972) ("[T]he findings of the lower court are not necessarily binding and controlling on appeal, and if these findings are grounded on an erroneous theory, the judgment may yet be affirmed where appellate review discloses other theories to support it.").
We agree with the dissent that our interpretation of Florida Statutes section 943.0435(1)(h) 1 in James was correct and felicitous to the operative text of the statute at that time.
We also add that we, too, find the recent controversy rule—by which a subsequent legislature's amendment somehow slips free from the bonds of time to recalibrate the meaning of the words that a prior legislature enacted—both puzzling in its application and potentially troubling in its effect. It is, however, a settled facet of the law in our State. See Leftwich v. Fla. Dep't of Corrs. , 148 So. 3d 79, 83 (Fla. 2014) ; Metropolitan Dade County v. Chase Fed. Hous. Corp. , 737 So. 2d 494, 503 (Fla. 1999) ; Finley v. Scott , 707 So. 2d 1112, 1116-17 (Fla. 1998) ; Lowry v. Parole & Prob. Comm'n , 473 So. 2d 1248, 1250 (Fla. 1985) ; Madison at Soho II Condo. Ass'n , 198 So. 3d at 1116–17. Indeed, though we wish it were otherwise, we are told that Florida courts "ha[ve] the right and the duty" to apply this method of statutory (re)construction. Ivey v. Chi. Ins. Co. , 410 So. 2d 494, 497 (Fla. 1982) (quoting Gay v. Can. Dry Bottling Co. of Fla. , 59 So. 2d 788, 790 (Fla. 1952) ).
Mr. Hull also argues, as he did below, that (1) fines and costs are functionally equivalent in this context so (2) James should nonetheless apply to our interpretation of 943.0435(1)(h)1.a.(II). We reject this argument for several reasons. First, assuming without deciding that fines and costs are functionally equivalent in this context, the legislature has pronounced that our holding in James contradicts legislative intent. We must defer to the legislature's pronouncement. See CVS EGL Fruitville Sarasota FL, LLC , 124 So. 3d at 292. Second, the legislature explicitly clarified that failure to pay a "fine" in this context does not relieve a person "of the requirement to register as a sexual offender." Ch. 2021-156, § 1, Laws of Fla. The text of section 943.0435(1)(h) 1.a.(II) never included costs, and the legislature struck the term "fines" in the 2021 amendment. Under the recent-controversy rule, it follows that the term costs should not be read into the definition of sanction in the preamendment version of the statute. Lastly, the legislature plainly stated its intent that "a person must register as a sexual offender pursuant to s. 940.0435, Florida Statutes, when he or she has been convicted of a qualifying offense and, on or after October 1, 1997 , has ... been released from a sanction imposed upon conviction." Ch. 2021-156, § 1, Laws of Fla. (emphasis added). All operative events in this case occurred long after October 1, 1997, and Mr. Hull undisputedly was "released from a sanction" when he was released from prison.
Recognizing—as we must—the legislature's abrogation of James and the legislature's express and specific clarification of its intent, we are bound to conclude that a person who has failed to pay court costs is not relieved of the requirement to register and report as a sexual offender. And we affirm the order denying Mr. Hull's motion to dismiss.
Affirmed.
LUCAS, J., Concurs.
ATKINSON, J., Dissents with opinion.
ATKINSON, Judge, Dissenting.
I respectfully dissent. In State v. James , 298 So. 3d 90 (Fla. 2d DCA 2020), a prior panel of this court properly applied section 943.0435(1)(h) 1.a, Florida Statutes (2017), according to the plain and ordinary meaning of its unambiguous text. It would be improper to apply the recent clarification rule in contravention of that meaning in this case. This court is not bound by precedent to apply the rule under the circumstances of this case, and to do so would violate the constitutional prohibition of ex post facto laws and this court's obligation to observe the separation of powers in our state government.
The version of section 943.0435(1)(h) 1.a in effect before the 2021 amendment defined a "sexual offender" as a person who had been convicted of an enumerated sex offense and "[h]ad been released on or after October 1, 1997, from the sanction imposed for any [such] conviction." "[A] sanction imposed ... include[d], but [wa]s not limited to, a fine, probation, community control, parole, conditional release, control release, or incarceration." § 943.0435(1)(h) 1.a.(II). Therefore "the sanction imposed for" a conviction included not only the incarcerative and supervisory aspects of the sentence but any fine that had been imposed as well. As such, as the James court concluded, a person has not been "released ... from the sanction imposed for" a conviction of a sex offense until he has been released from the entire sanction imposed against him, including the liability to pay fines. James , 298 So. 3d at 92.
Further, as the James court concluded, the absurdity doctrine is inapplicable to the pre-amendment section 943.0435 because the application of the plain language to the circumstances produced merely "an unintended result," not "an absurd or patently unreasonable one." See Mesen v. State , 271 So. 3d 164, 169 (Fla. 2d DCA 2019) (quoting Maddox v. State , 923 So. 2d 442, 452–53 (Fla. 2006) (Cantero, J., dissenting)). Courts from time to time are obliged to apply as written legislative enactments with perplexing or seemingly ridiculous consequences and policy implications. See id. ; see also Republic of Argentina v. NML Capital, Ltd. , 573 U.S. 134, 145–46, 134 S.Ct. 2250, 189 L.Ed.2d 234 (2014) (recognizing that a statute had "worrisome international-relations consequences" but declining to depart from applying the text of the statute as enacted by Congress); United States v. Brown , 206 U.S. 240, 244, 27 S.Ct. 620, 51 L.Ed. 1046 (1907) ("[W]hatever the consequences, we must accept the plain meaning of plain words."); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 237–38 (2012) (explaining that in order to prevent the absurdity doctrine from becoming "a slippery slope" that "can lead to judicial revision of public and private texts to make them (in the judge's view) more reasonable ... the doctrine must be subject to two limiting conditions: ... The absurdity must consist of a disposition that no reasonable person could intend. ... [And] [t]he absurdity must be reparable by changing or supplying a particular word or phrase whose inclusion or omission was obviously a technical or ministerial error (e.g., losing party instead of winning party )"). In the criminal context, a court's reckless implementation of the absurdity doctrine could deprive individuals of the right to rely on the language of statutes as notice of what the law requires and proscribes. See Dufresne v. Baer , 744 F.2d 1543, 1548 (11th Cir. 1984) ("The ex post facto clause operates to ensure that a citizen's fair notice as to what acts are criminal will not be changed after the citizen acts in reliance on that notice.").
Because James is a prior decision of this court, we are bound to follow it. However, there are also Florida Supreme Court decisions and prior panel decisions of this court applying the recent controversy rule which suggest a court should interpret a preamendment statute in light of a subsequent "clarification" rather than the statute's plain meaning in isolation. See, e.g. , Leftwich v. Fla. Dep't of Corr. , 148 So. 3d 79, 83 (Fla. 2014) ; Lowry v. Parole & Prob. Comm'n , 473 So. 2d 1248, 1250 (Fla. 1985) ; Madison at Soho II Condo. Ass'n v. Devo Acquisition Enters., LLC , 198 So. 3d 1111, 1118 (Fla. 2d DCA 2016) (applying the recent controversy rule to reexamine a prior panel decision regarding the interpretation of a statute).
In instances where the recent controversy rule is applied to give effect to a legislature's subsequent pronouncement of intent that is not supported by the version of the statute that was in effect at the time of its alleged violation, the rule is merely retroactivity by another name. However, courts of this state have instead characterized the recent controversy rule as a method of statutory interpretation of the pre-amendment version of a statute. See Leftwich , 148 So. 3d at 83 (citing Lowry , 473 So. 2d at 1250 ); Madison at Soho II, LLC , 198 So. 3d at 1116–17 ("The Association asks us to revisit our prior construction of the pre-amended [statute], not to retroactively apply a newer version of [the statute]. Because we are applying the legislature's amendment, which clarified the legislature's intent in a prior version of a statute after a recent controversy, we do not apply retroactivity principles here .... [W]e have established that statutory construction , not retroactive application, is the task before us ." (emphasis added) (citations omitted)).
In other words, the recent controversy rule purports to use the statute's subsequent legislative history as a guide for determining the legislature's intent in the pre-amendment version of the statute. See Leftwich , 148 So. 3d at 83 ; Madison at Soho II , 198 So. 3d at 1116–17. To the extent that this methodology is employed in abrogation of the meaning of the text of a pre-amendment version of a statute, the rule is inconsistent with our charge as members of the judicial branch. "In determining the meaning of a statute, we adhere to the supremacy-of-the-text principle—a principle recognizing that ‘[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.’ " Levy v. Levy , 326 So. 3d 678, 681 (Fla. 2021) (alteration in original) (emphasis added) (quoting Page v. Deutsche Bank Tr. Co. Ams. , 308 So. 3d 953, 958 (Fla. 2020) ); CCM Pathfinder Palm Harbor Mgmt., LLC v. Unknown Heirs of Gendron , 198 So. 3d 3, 9 (Fla. 2d DCA 2015) ("[I]t is this court's role to apply the law as written ....").
The 2019 pre-amendment version of section 943.0435 applies in this case. See Allen v. State , 324 So. 3d 920, 925 n.5 (Fla. 2021) ("[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed."). This court correctly concluded in James that the ordinary meaning of the pre-amendment section 943.0435 provides that a person who has been convicted of a qualifying offense is not required to register as a sexual offender until he has been released from the entire sanction for the conviction of a sexual offense, including payment of all fines imposed. James , 298 So. 3d at 92.
The majority relies on the recent controversy rule to improperly implement a retroactive change to the plain and ordinary meaning of the text of a statute as it read at the time of the alleged crime. The plain and ordinary meaning of the language of the statute in context, as it would be understood when it was enacted, is the law. See S.C. v. State , 224 So. 3d 249, 250 n.3 (Fla. 3d DCA 2017) ("[T]he terms of a statute should be given their plain and ordinary meaning as they were understood at the time of enactment."); cf. Advisory Op. to Governor re Implementation of Amend. 4, the Voting Restoration Amend. , 288 So. 3d 1070, 1081–82 (Fla. 2020) (applying the "natural and popular meaning" of a phrase in a constitutional provision (quoting Wilson v. Crews , 160 Fla. 169, 34 So. 2d 114, 118 (1948) )). Courts may not apply the law in derogation of that meaning. See, e.g. , MRI Assocs. of Tampa v. State Farm Mut. Auto. Ins. Co. , 334 So. 3d 577, 583 (Fla. 2021) ("[Courts] are ... bound by the plain meaning of the text of the provisions of [a statute]."); Mesen v. State , 271 So. 3d 164, 167 (Fla. 2d DCA 2019) ("Courts must afford statutory language ‘its plain and ordinary meaning, giving due regard to the context within which it is used.’ " (quoting Hampton v. State , 103 So. 3d 98, 110 (Fla. 2012) )).
The recent controversy rule's ostensible deference to the legislative branch and the text of its most recent pronouncement belies the doctrine's potential practical effect—usurpation of the authority of the legislative branch. While implementation of the recent controversy doctrine deceptively defers to a subsequent legislative pronouncement, it can be used to usurp the authority of the legislature that enacted the text of the applicable version of the statute and supplant those words with an expression of more recent legislative will that is potentially in derogation of the text.
Here, that more recent expression of legislative will is an extratextual source that is contrary to the ordinary meaning of the text as it was enacted by representatives and senators that voted on and passed Senate Bill 958 in 1997. Cf. Advisory Op. to Governor re Implementation of Amend. 4 , 288 So. 3d at 1078 ("[S]hift[ing] the focus of interpretation from the text and its context to extraneous considerations ... can result in the judicial imposition of meaning that the text cannot bear ...."). Just as imposition of a judge's perception of what the law should say instead of what the text means would be a violation of the supremacy of the text principle as well as the separation of powers, see Villanueva v. State , 200 So. 3d 47, 52 (Fla. 2016) (explaining that courts "are not at liberty to add to a statute words that the Legislature itself has not used in drafting that statute" (citing Lawnwood Med. Ctr., Inc. v. Seeger , 990 So. 2d 503, 512 (Fla. 2008) )), adoption of a subsequent legislature's pronouncement of intent as to what a law should have said when it was enacted in the past instead of what it actually did say is likewise a violation of the supremacy of the text principle and separation of powers, see State v. Lewars , 259 So. 3d 793, 798 (Fla. 2018) ("[T]he courts of this state lack the ‘power to construe an unambiguous statute in a way which would extend, modify, or limit[ ] its express terms or its reasonable and obvious implications.’ Such a construction ‘would be an abrogation of legislative power.’ " (second alteration in original) (citations omitted)). Just as in the former, the judge in the latter scenario is applying something other than the ordinary meaning of the text enacted by the legislature that drafted and enacted the language of the pre-amendment statute. See Advisory Op. to Governor re Implementation of Amend. 4 , 288 So. 3d at 1078 ("The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means." (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56 (2012))).
While the legislature may enact laws with retroactive effect, retroactive effect is applied with circumspection, see Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc. , 88 So. 3d 269, 279 (Fla. 1st DCA 2012), and retroactive effect is limited by the state and federal constitutions, see R.A.M. of S. Fla., Inc. v. WCI Cmtys., Inc. , 869 So. 2d 1210, 1215 (Fla. 2d DCA 2004) ("If the statute is construed as being properly given retroactive effect, it must ... be determined if such application is inconsistent with any constitutional limitation."); see also Scalia & Garner, supra , at 261–62 ("As a general, almost invariable rule, a legislature makes law for the future, not for the past. Judicial opinions typically pronounce what the law was at the time of a particular happening. Statutes, by contrast, typically pronounce what the law becomes when the statutes take effect.... [A statute's] retroactive operation may, but will not necessarily, violate one of the Ex Post Facto Clauses, one of the Due Process Clauses, the Takings Clause, or the Obligations of Contracts Clause of the United States Constitution, or similar provisions in state constitutions."). The prohibition of ex post facto criminal laws is one such constitutional limitation on retroactive application. See art. I, § 9, cl. 3, U.S. Const. ("No ... ex post facto Law shall be passed."); art. I, § 10, cl. 1, U.S. Const. ("No State shall ... pass any ... ex post facto Law."); art. I, § 10, Fla. Const. ("No ... ex post facto law ... shall be passed.").
Application of the recent controversy rule would be contrary to our obligation to "apply the law as we find it" in the pre-amendment version of section 943.0435 that was in effect at the time of the alleged offense. See Alachua County v. Watson , 333 So. 3d 162, 169 (Fla. 2022) (quoting Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 1480, 209 L.Ed.2d 433 (2021) ). Under the pre-amendment section 943.0435, the defendant was not subject to the obligation he is alleged to have criminally failed to perform. See James , 298 So. 3d at 92. Application of the legislature's amendment that explicitly rejected the James opinion such that it would govern the application of the pre-amendment section 943.0435, see ch. 2021-156, § 1, Laws of Florida, would violate the constitutional prohibition of ex post facto laws.
The ex post facto clause only applies to criminal laws and proceedings; whether a statute is civil or criminal for purposes of the ex post facto clause is a question of statutory interpretation. Griffin v. State , 980 So. 2d 1035, 1036 (Fla. 2008). "In evaluating whether a law violates the ex post facto clause, a two-prong test must be applied: (1) whether the law is retrospective in its effect; and (2) whether the law alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Id. Here, the new law is criminal for purposes of the ex post facto clause, has a retroactive effect, and alters the definition of criminal conduct by altering the time at which the violated duty arises.
This court, other Florida courts, and federal courts have concluded that the Florida sex offender registration statute and similar statutes in other jurisdictions are not criminal for ex post facto purposes. See, e.g. , Givens v. State , 851 So. 2d 813, 814–15 (Fla. 2d DCA 2003) ; Smith v. Doe , 538 U.S. 84, 95, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (analyzing Alaska's sexual offender registration act). However, these cases are distinguishable from the present case.
In Givens , Smith , and other similar cases, the courts were determining whether retroactive application of the registration requirement on individuals who had been convicted of qualifying sex offenses before the enactment of the applicable sexual offender registration act violated the ex post facto clause. See Givens , 851 So. 2d at 814 ; Smith , 538 U.S. at 91, 123 S.Ct. 1140. The courts determined that the registration requirement itself was civil or nonpunitive; therefore, the courts concluded that retroactive application of the registration requirements did not violate the ex post facto clause. Givens , 851 So. 2d at 814–15 ; Smith , 538 U.S. at 96, 105–06, 123 S.Ct. 1140.
In the present case, however, the operable portion of the statute is not the civil, nonpunitive registration requirement itself but rather the criminal prohibition on failing to fulfill that requirement. See § 943.0435(14)(c) 4 (providing that it is a third-degree felony for a sexual offender to fail to report as required by section 943.0435 ). This portion of the statute is criminal for purposes of the ex post facto clause because it is punitive in nature—it punishes those who fail to register as required—and conviction under this section would place an affirmative restraint on an individual's liberty. Cf. Goad v. Fla. Dep't of Corr. , 845 So. 2d 880, 884 (Fla. 2003). While the registration requirement could be characterized as civil, the provision imposing a criminal sanction on failure to register is criminal. As such, retroactive application of that portion of the amended section 943.0435 that explicitly rejects our decision in James and purports to clarify the intent of the preamendment version in a criminal proceeding would implicate the ex post facto clause.
The sex offender registration statute is not unique with respect to having civil, nonpunitive aspects and criminal, punitive aspects. For example, section 322.57 governs testing requirements for issuance of licenses for certain vehicles—commercial vehicles (double and triple trailers, passenger vehicles, and vehicles used to transport hazardous materials), motorcycles, and tanks. Most of its provisions specify the additional tests and endorsements required for the issuance of such licenses in addition to the other driver licensing requirements in chapter 322 and outline licensing requirements for nonresidents and military servicemembers. See § 322.57(1) –(4), Fla. Stat. (2022). However, section 322.57(5) provides that driving a commercial vehicle without a valid commercial license is a misdemeanor and that driving a commercial vehicle with an expired commercial license is a nonmoving violation. § 322.57(5)(a)–(b).
In general, section 322.57 is a civil, nonpunitive statute for purposes of the ex post facto clause because the licensing and testing requirements—like the sex offender registration requirements—are reasonably related to public safety. Cf. Smith , 538 U.S. at 102–03, 123 S.Ct. 1140. However, for purposes of a criminal prosecution for misdemeanor driving a commercial vehicle without a valid commercial license, that portion of the statute and the substantive elements of that offense—which includes some of the nonpunitive provisions—would be criminal for ex post facto purposes.
If a court applied the plain language of a nonpunitive provision of section 322.57 in a manner the legislature found to be contrary to its intent and the legislature amended section 322.57 in the next legislative session, making the amendment retroactive, it would violate the ex post facto clauses if the amended statute retroactively applied in a criminal case in which the defendant was charged with violating section 322.57 before the amendment became effective. In other words, an individual cannot be criminally sanctioned for failing to fulfill a statutory duty that the text of law did not impose on him at the time of his alleged failure.
The amended statute meets the first prong of the ex post facto analysis, retroactivity. The amended statute does not simply amend the statute for prospective application. Instead, it purports to change the plain and ordinary meaning of the pre-amendment statute by finding that the James opinion was contrary to the prior legislature's intent when it first passed section 943.0435. And the amended statute meets the second prong of the ex post facto analysis because it alters what constitutes the crime of failure to report as a sexual offender by changing the definition of the term "sexual offender." Before the amendment, the language of the statute defined sexual offenders—the only persons who can commit this crime—as individuals who have been convicted of qualifying sex offenses and have been released from "the sanction"—including fines, probation, imprisonment, etc.—imposed for the conviction. See § 943.0435(1)(h) 1.a; James , 298 So. 3d at 92. The retroactive effect of the amendment would change the definition of "sexual offender" to include persons convicted of qualifying sex offenses who have not been released from the entire sanction and allow the State to punish individuals for violating section 943.0435 when, at the time they committed the offense, they were not subject to the registration requirement. Cf. Gwong v. Singletary , 683 So. 2d 109, 112 (Fla. 1996) ("[A] law is ex post facto if it punishes as a crime an act previously committed which was innocent when done ... according to the law at the time the act was committed.").
In addition to violating the ex post facto clauses, application of the recent controversy rule could violate the constitutional provision enforcing the separation of powers. See art. II, § 3, Fla. Const. ("The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."). By applying the recent controversy rule in deference to a more recent legislative pronouncement communicating what that legislature wishes the statute had said , the court is failing to apply what the law at the time of the alleged offense did say . In doing so, this court is encroaching on the authority of the legislature that enacted the text of the earlier version of the statute.
The 2019 legislature enacted a statute, and the text of that statute was the law, effective until amended by a subsequent legislature. Cf. art. III, § 9, Fla. Const. (providing that a law generally takes effect sixty days after adjournment of the legislative session in which it was enacted or on the date specified in the act); Allen , 324 So. 3d at 925 n.5 (recognizing that "statutes in effect at the time of the commission of a crime control as to the offenses for which the perpetrator can be convicted"). By applying something that was not the duly enacted law of the land at the time of the commission of the alleged crime, this court—even if at the urging of a subsequent legislature—would be making law, a law that did not exist at the time of the alleged offense. The power to make law is confined by the constitution to the legislative branch. Cf. Chiles v. Children A, B, C, D, E, & F , 589 So. 2d 260, 267 (Fla. 1991) (affirming that the "legislature" is "the only branch with the power to make law " (emphasis in original)). Courts have no more authority to encroach on the power of a prior legislature than they do to usurp the power of the present legislature. Cf. Villanueva , 200 So. 3d at 52 ("[It] is ... well-established ... that [courts] are not at liberty to add to a statute words that the legislature itself has not used in drafting that statute." (citing Lawnwood Med. Ctr. , 990 So. 2d at 512 )). Doing so would be to "exercise [a] power[ ] appertaining to" the legislative branch of government. See art. II, § 3, Fla. Const.; Fla. Dep't of Rev. v. Fla. Mun. Power Agency , 789 So. 2d 320, 324 (Fla. 2001) ("Under fundamental principles of separation of powers, courts cannot judicially alter the wording of statutes where the legislature clearly has not done so. A court's function is to interpret statutes as they are written and give effect to each word in the statute." (footnote omitted)). "[E]ven where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity." Lewars , 259 So. 3d at 798 (quoting St. Petersburg Bank & Tr. Co. v. Hamm , 414 So. 2d 1071, 1073 (Fla. 1982) ). What a legislature says it meant after the fact can no more justify such a departure from the plain and ordinary meaning of the text than a court's perception of what the legislature might have meant when it enacted it. The text that was passed controls over extratextual perceptions of what a legislature intended. See id. ; State v. Peraza , 259 So. 3d 728, 733 (Fla. 2018) ("[E]ven a clearly discernible [l]egislative intent cannot change the meaning of a plainly worded statute ....").
This court is required to follow past panel precedent and to follow the decisions of the Florida Supreme Court. However, it is not necessary to answer the question of whether a panel of this court is obligated to follow a decision of the Florida Supreme Court that is in violation of the constitutional constraint against imposition of criminal sanctions in violation of the ex post facto clause; this author is not aware of any published opinion of the Florida Supreme Court that applies the recent controversy rule to retroactively impose a criminal liability that was not supported by the text of the statute at the time of the alleged offense.
In Leftwich , for example, the Florida Supreme Court applied the concept of the recent controversy rule, explaining that "a statutory amendment may be relevant to a determination of the intent behind the previous statute." 148 So. 3d at 83 (citing Lowry , 473 So. 2d at 1250 ). However, in Leftwich the Florida Supreme Court applied the recent controversy doctrine explicitly in support of the "plain language" of the previous version of the statute. Id. at 87–88. The court referenced the legislature's subsequent pronouncement of intent in the bill amending the statute as support for the proposition that the legislature had always intended an interpretation consistent with the text of the pre-amendment statute to be the effect of the statute—i.e., as "a clarification of original legislative intent rather than a change in the law." Id. at 86 ; see also Brown v. State , 166 So. 3d 817, 821 (Fla. 2d DCA 2015) (concluding that a statutory amendment "did not change the law but rather clarified the legislature's intent and the existing state of the law" as established by prior case law consistent with the court's holding and its interpretation of the text both before and after the amendment).
In other words, the holding of Leftwich is not that the recent controversy doctrine may be applied to contravene the plain meaning of the statute at the time of the alleged commission of the crime in violation of a defendant's constitutional right to be free from ex post facto criminal laws. Rather, in Leftwich , invocation of the principles of the recent controversy doctrine was to explain that the legislature's amendment of the statute did not change its meaning but rather clarified what it meant all along, consistent with the ordinary meaning of the unambiguous language of the original statute as well as the amended version. See 148 So. 3d at 85–88. Indeed, the court warned that "where a statute is ambiguous at the time a crime is committed, and the legislature subsequently enacts a clarifying amendment that would result in a longer prison sentence, retroactive application of the clarifying amendment runs afoul of the ex post facto clause." Id. at 83 (emphasis added).
Here, on the other hand, the majority applies the recent controversy doctrine explicitly in contravention of the plain meaning of the text of the previous version of the statute and in conflict with a prior panel decision of this court implementing a fair reading of that unambiguous text. Cf. Brown , 166 So. 3d at 820–21 (applying recent controversy rule concepts so as to confirm the correctness of prior panel precedent construing the previous version of the statute consistent with the subsequent legislative pronouncement of intent in the bill amending the statute); see also Leftwich , 148 So. 3d at 86 ("[A]lthough subsequent legislation cannot be used to overturn prior court decisions with respect to a statute, the legislation can be used to clarify the intent behind the prior version of the statute." (emphasis in original)). Even presuming that the recent controversy rule, broadly defined, can under some circumstances be applied in a way that would not violate a court's obligation to apply the plain meaning of the text of a statute, application of the rule in this case does not present such a scenario.
In contexts to which the ex post facto clause is not applicable, this and other courts have applied the recent controversy rule to apply a subsequent pronouncement of legislative intent to the interpretation of a previous version of a statute in abrogation of a prior court's interpretation of the meaning of the text of the then-effective version of the statute. See, e.g. , Madison at Soho II , 198 So. 3d 1111 at 1116 (applying the recent controversy rule to "revisit our prior construction of the pre-amended [version of the statute]" and "reexamine our precedent" and conclude that "our prior interpretation of [the statute] has been abrogated by the legislature's recent clarifying amendment"). This court should not consider itself bound by such case law in this appeal. Abrogation of the plain meaning of the language of the statute in effect at the time of the offense based on extratextual indicia of legislative intent would violate the ex post facto clause of the constitution as well as the separation of powers. This court's duty to comply with the Florida and United States constitutions should not be subordinated to adherence to the requirement that it follow precedent set by recorded opinions of prior panels that themselves do not contain binding interpretations of constitutional provisions. Cf. Gamble v. United States , ––– U.S. ––––, 139 S. Ct. 1960, 1984, 204 L.Ed.2d 322 (2019) (Thomas, J., concurring) ("When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it. This view of stare decisis follows directly from the Constitution's supremacy over other sources of law—including our own precedents.").
However, even presuming that we are bound to follow the prior panel precedent relied upon by the majority, that authority does not contain a binding holding that compels the result reached in the majority opinion. In Madison at Soho II , this court mentioned the ex post facto clause as part of a general discussion of whether the application of the recent controversy rule could constitute retroactive application of a statute in violation of a constitutional provision such as an impairment of the obligations of a contract. Madison at Soho II , 198 So. 3d at 1116–17. However, that discussion as it pertains to the constitutionality of retroactive application is dicta, and the holding of the case is inapposite; neither are binding on our decision in this case.
Here, the majority is applying an amended version of a criminal statute to an alleged violation that took place prior to the effective date of the bill announcing legislative intent that contravenes the plain and ordinary meaning of the text as it existed at the time of the alleged violation being prosecuted—and does so in contravention of a prior panel's correct interpretation and application of that text, see James , 298 So. 3d at 92. In Madison at Soho II , on the other hand, this court decided that the recently enacted pronouncement of legislative intent was consistent with the plain meaning of the text of the pre-amendment version of the statute—and that a prior panel's interpretation of the preamendment version of that statute was incorrect . Madison at Soho II , 198 So. 3d at 1117–18 (concluding that St. Croix Lane Trust v. St. Croix at Pelican Marsh Condominium Ass'n , 144 So. 3d 639 (Fla. 2d DCA 2014), incorrectly interpreted the pre-amendment version of the relevant statute in light of the plain language of that version of the statute and the legislature's subsequent clarifying amendment). Thus, Madison at Soho II ’s discussion of retroactivity and the constitutional provisions it could theoretically violate—e.g., the ex post facto clause, the impairment of contract clause—is dicta because there was never any danger in that case of violating such constitutional provisions because this court was applying the statute in accordance with the plain and ordinary meaning of the text of the pre-amendment version of the statute in effect at the time of the facts giving rise to the controversy. Cf. State Farm Mut. Auto. Ins. v. Hassen , 650 So. 2d 128, 139 (Fla. 2d DCA 1995) (concluding that retroactive application of an amendment to the uninsured motorist statute would violate the impairment of contracts clause because "the changes wrought by the 1992 statute substantially impair State Farm's rights and obligations under its insurance contract ... by imposing a new obligation ... and by depriving it of other vested statutory rights specifically incorporated in the contract"); Est. of Williams v. Tandem Health Care of Fla., Inc. , 899 So. 2d 369, 374 (Fla. 1st DCA 2005) (treating language that "was not dispositive of the issue before the ... court" as dicta).
At any rate, both the holding and the reasoning of Madison at Soho II are inapposite. In Madison at Soho II , this court applied a subsequent pronouncement of legislative intent consistent with the text of the pre- and post-amendment versions of the statute to avoid application of prior panel precedent that this court determined to have incorrectly interpreted the statutory text; here, the majority applies a subsequent pronouncement of legislative intent admittedly inconsistent with the text of the applicable, pre-amendment version of the statute with the effect of avoiding application of prior panel precedent that the majority acknowledges correctly interpreted the statutory text. Even leaving aside constitutional issues, the majority's reliance on Madison at Soho II is misplaced.
On the other hand, this court should follow the Florida Supreme Court's admonition in Leftwich , in which, like this court in Madison at Soho II , the Florida Supreme Court was construing the text of a pre-amendment version of a statute that was consistent with the legislature's subsequent amendment and declaration of legislative intent. In Leftwich , the Florida Supreme Court explained that even if the pre-amendment version of the statute had been merely ambiguous —let alone inconsistent with the post-amendment pronouncement of legislative intent as it was in this case—then application of the subsequently amended statute and pronouncement of legislative intent in a manner adverse to the defendant would violate the ex post facto clause. Leftwich , 148 So. 3d at 83, 87 ("[W]here a statute is ambiguous at the time a crime is committed, and the legislature subsequently enacts a clarifying amendment that would result in a longer prison sentence, retroactive application of the clarifying amendment runs afoul of the ex post facto clause."). Indeed, this court, relying on Florida Supreme Court precedent, has been reticent to do what the majority has done in this case—"apply the recent controversy rule to unambiguous statutes." Cf. Dean Wish, LLC v. Lee County , 326 So. 3d 840, 851 (Fla. 2d DCA 2021) ("Because the Act's language before us is clear, we need not look at the 2021 amendment to discern a prior legislative intent. Indeed, precedent urges caution."); Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. , 945 So. 2d 1216, 1230 (Fla. 2006) ("[W]e have also been reluctant to look at subsequent amendments to determine legislative intent when the language of a statute is clear and unambiguous ...." (citing Savona v. Prudential Ins. Co. Am. , 648 So. 2d 705 (Fla. 1995) )); Savona , 648 So. 2d at 707 ("Because the language of the statute is clear, we do not look beyond it to discern legislative intent. Accordingly, we reject Savona's contention that the context of [the statute] should yield to the legislative intent as evidenced by subsequent amendments to the statute. We do not address these amendments due to our conclusion that the statute has a plain and discernible meaning." (citations omitted)).
Courts should apply the plain and ordinary meaning of the text of the version of the statute that was in effect at the time of the alleged crime or controversy, and the majority cites no authority that compels this court to do otherwise under the circumstances of this case. Therefore, this court can and should honor the constitutional bars to the retroactive application of the most recent pronouncement of the legislature on the interpretation of this criminal statute Hull is alleged to have violated. That doing so would perpetuate application of the pre-2021 version of the statute in a way that might seem counterintuitive as a matter of policy may be unfortunate, but such an undesirable result should not dictate how a court interprets the words of a statute. See Forsythe v. Longboat Key Beach Erosion Control Dist ., 604 So. 2d 452, 454 (Fla. 1992) ("The Legislature must be understood to mean what it has plainly expressed .... If a Legislative enactment violates no constitutional provision or principle it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage."). The text of the statute at the time of the alleged offense indicates that it did not apply to the defendant. And what the text says is what the law is, regardless of what future judges or legislators think it should have said.
In this case, Hull has failed to pay all the costs that are part of his sentence. Although the State has argued that James is distinguishable because costs—unlike the fine in James —are not a "sanction" within the meaning of the pre-amendment version of section 943.0435, this argument lacks merit.
Florida courts have consistently considered costs to be part of the sentence imposed on a defendant. See, e.g. , Advisory Op. to Governor re Implementation of Amend. 4 , 288 So. 3d at 1072, 1081 (holding that the term "all terms of sentence" in constitutional provision requiring a convicted felon to complete his or her sentence before the felon's voting rights may be restored because the phrase "all terms of sentence" "plainly encompass[ed] not only the durational terms but also obligations and therefore includes all [legal financial obligations] imposed in conjunction with an adjudication of guilt," and "costs ... fit within the ordinary meaning of ‘all terms of sentence’ "); see also Bassett v. State , 23 So. 3d 236, 236 (Fla. 2d DCA 2009) ("As part of his sentence he was ordered to pay certain costs and fees.").
The Florida Supreme Court has also recognized that costs are included within "the ultimate sanction imposed" on a defendant. Jackson v. State , 983 So. 2d 562, 572–73 (Fla. 2008) (explaining that " ‘sentencing errors’ under [Florida Rule of Criminal Procedure] 3.800(b) ... involve errors related to the ultimate sanctions imposed, whether involving incarceration, conditions of probation, or costs."); see also Advisory Op. to Governor re Implementation of Amend 4 , 288 So. 3d at 1083 (relying on Jackson to support its conclusion that costs are part of "all the terms of sentence"). The Fifth District has also concluded that costs of prosecution constitute criminal sanctions for purposes of the Double Jeopardy Clause because failure to pay costs can lengthen a defendant's sentence if he is on probation, trial courts have the discretion to convert costs of prosecution to community service, and costs are imposed during the sentencing process. Martinez v. State , 91 So. 3d 878, 880 (Fla. 5th DCA 2012).
The recently amended version of the registration requirement of section 943.0435 can , however, be applied to defendants convicted of a sex offense before its enactment and effective date; the present version of the portion of the provision criminalizing failure to register as a sexual offender can be imposed on any failure to register that occurred on or after the effective date of the amendment. But as to individuals who had not yet been released from the entire sanction for their convictions, the amended version of section 943.0435 should not be applied to failures to register that occurred before the effective date of the amended statute, because the constitution does not allow an individual to be criminally sanctioned for failing to fulfill a statutory obligation that the text of the statute did not impose on him at the time of his alleged failure to fulfill it. See Weaver v. Graham , 450 U.S. 24, 28–29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (explaining that the prohibition of ex post facto laws "assure[s] that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed").
For the foregoing reasons, I respectfully dissent.