CopyPublished | Florida 6th District Court of Appeal
...Herard moved to dismiss the information, attesting
that she met the criteria of the amended statute.1 Herard argued the concealed carry
amendment was excepted from the general prohibition against retroactive
application of amendments to criminal statutes in section
775.022(3), Florida
Statutes (2023), because, under subsection (4) of the statute, amendments reducing
the punishment for violating a criminal statute must be applied retroactively.
The State opposed dismissal under subsection (4) of section
775.022, arguing
that the concealed carry amendment changed the elements of a section
790.01
violation, not the punishment for a violation. The State also argued that subsection
1
Herard did not challenge the stop, search, or arrest, and the State does not
dispute her eligibility for a concealed carry license.
2
(5) of section
775.022, permitting retroactive application of certain defenses to
criminal statutes, did not apply for the same reason—the concealed carry amendment
redefined the elements of the crime, not a defense to the crime.
The trial court granted dismissal, concluding that the concealed carry
amendment applied retroactively under subsection (4) of section
775.022 because
the amendment “reduced the punishment from a third-degree felony punishable by
up to five years in prison to no punishment at all for those individuals who are
eligible to receive and maintain a license to conceal carry p...
...criteria.” The State timely appealed.
II. Questions presented and standard of review
The State seeks reversal on the ground that the trial court erred in retroactively
applying the concealed carry amendment under subsection (4) of section 775.022.
The State also argues that subsection (5) of section 775.022 provides no alternative
ground for “tipsy coachman” affirmance....
...See, e.g., Wright v. State,
393 So. 3d 229,
230 & n.2 (Fla. 6th DCA 2023). Both arguments present questions of law we review
de novo. See State v. Tacher,
84 So. 3d 1131, 1132 (Fla. 3d DCA 2012).
Answering these questions requires our interpretation of section
775.022,
Florida’s statutory “savings clause” governing retroactive application of
amendments to criminal statutes, and application of the savings clause to the 2023
amendments to section
790.01, Florida’s criminal concealed carry statute....
...United States,
346 So. 3d 594, 598 (Fla. 2022) (cleaned up).
III. Analysis
A. The statutory savings clause
Preceding the 2019 enactment of Florida’s statutory savings clause,
section
775.022, voters in the 2018 General Election amended Florida’s
constitutional savings clause, article X, section 9....
...equire the Legislature to
do so.” Id. at 504.
Following the constitutional amendment, in 2019, the Legislature
comprehensively addressed retroactive application of amendments to criminal
statutes by enacting the statutory savings clause, section 775.022....
...enacted or amended by the Legislature in a criminal case
that has not yet resulted in the imposition of a judgment or
sentence by the trial court or an appellate decision
affirming a judgment or sentence of the trial court.
§ 775.022(3)–(5), Fla. Stat.2
2
In addition to amendments, section 775.022 also addresses “reenactment” of
criminal statutes....
...Application of the statutory savings clause
to the 2023 concealed carry amendment
1. Application of savings clause subsection (4)
The trial court held the 2023 concealed carry amendment applicable to
Herard’s prosecution, retroactively, under subsection (4) of section 775.022.
Subsection (4) requires retroactive application of an amendment to a criminal statute
reducing the punishment for a violation of the statute if punishment has not yet been
imposed. § 775.022(4), Fla....
...Stat., is
a “criminal statute” under the savings clause, defined broadly as “a statute, whether
substantive or procedural, dealing in any way with a crime or its punishment,
defining a crime or a defense to a crime, or providing for the punishment of a crime.”
§ 775.022(2)....
...775.083, or s.
775.084.” §
790.01(2), Fla. Stat. (2022);
§
790.01(3), Fla. Stat. (2023) (same). The amendment redefined a violation of the
statute by adding an element, but it did not reduce the punishment for a violation.
Thus, subsection (4) of section
775.022 does not except the 2023 concealed carry
amendment from the retroactivity prohibition of section
775.022(3)....
...cation of an
amendment to the theft statute reclassifying the $400 theft from a third-degree felony
to a first-degree misdemeanor. Dean,
303 So. 3d at 258; §
812.014(1), (2)(e), Fla.
Stat. (effective Oct. 1, 2019). The Dean court recognized that section
775.022(4)
required retroactive application of an amendment to a criminal statute reducing the
punishment for a violation of the statute, and therefore granted the requested relief.
Dean, 303 So....
...Thus, the Dean court’s retroactive
application of the 2019 theft amendment has no bearing on the retroactive
application of the 2023 concealed carry amendment sought by Herard.
2. Application of savings clause subsection (5)
Herard argues on appeal that subsection (5) of section 775.022 provides an
alternative ground for affirmance....
...should be upheld if there is any legal basis in the record which supports the
judgment. It follows that to aid the appellate court in its task, the appellee should be
permitted to explicate any legal basis supporting the trial court's judgment.”).
Subsection (5) of section 775.022 provides that the statute “may not be
construed to limit the retroactive effect of any defense to a criminal statute enacted
or amended by the Legislature in a criminal case that has not yet resulted in the
imposition of a judgme...
...enacted or amended by the Legislature,” or it could modify “criminal
statute”—i.e., “a criminal statute enacted or amended by the Legislature.” Giving
effect to the whole text, however, only the former makes sense.
11
Section 775.022 is a statute restricting the retroactivity of amendments to
criminal statutes. Subsection (5) of section 775.022 provides an exception for certain
defenses. In context, only new, statutory defenses can be the subject of a provision
excepting defenses from the general retroactivity prohibition of section 775.022(3).
“Any defense” that is newly “enacted or amended by the Legislature” is a natural
subject of retroactivity analysis as to existing prosecutions....
...1986) (“Statutory interpretations
that render statutory provisions superfluous are, and should be, disfavored.” (internal
12
quotation marks omitted)); Reading Law at 174–79 (“Surplusage Canon”). In
context, and giving effect to the whole text of section 775.022, subsection (5) only
permits the retroactive application of a newly enacted or amended statutory defense
to a criminal statute....
...3
As shown above, the 2023 amendment to section
790.01 redefined the crime
of carrying a concealed firearm by adding the element of negative eligibility for
licensure. The amendment did not add any new statutory defense to the crime. Thus,
subsection (5) of section
775.022 does not except the 2023 concealed carry
amendment from the retroactivity prohibition of section
775.022(3) and does not
provide an alternate ground for affirmance of the trial court’s dismissal....
...(2023).
With the 2015 amendment to the concealed carry statute, the Legislature
converted the licensure defense into the element of negative licensure, and added a
new mandatory evacuation defense. For a defendant awaiting trial when the 2015
amendment took effect, subsection (5) of section 775.022 would not have applied to
the added element of the offense, but subsection (5) would have permitted
retroactive application of the new mandatory evacuation defense “enacted ....
...he
Legislature to decide when an amendment to a criminal statute is retroactive.6 In the
absence of express legislative provision, the statutory savings clause prohibits
retroactive application of an amendment redefining the elements of a crime,
§ 775.022(3), requires retroactive application of an amendment reducing the
punishment for a crime, § 775.022(4), and does not prohibit the retroactive
application of an amendment enacting or amending a statutory defense to a crime,
§ 775.022(5).
The 2023 amendment to the concealed carry statute did not provide any new
statutory defense to the crime of carrying a concealed firearm....
...Nor did it reduce the
punishment for the crime. Rather, the amendment redefined the crime itself by
adding a new element that the State must prove beyond a reasonable doubt to secure
a conviction. Thus, neither subsection (4) nor subsection (5) of section 775.022
applies to the amendment, and section 775.022(3) otherwise prohibits retroactive
6
This legislative power is subject to the constitutional ex post facto clauses
that “prohibit the State of Florida from retroactively changing the definition of a
crime to make fo...
...t for
criminal acts.” State v. Lobato,
394 So. 3d 1219, 1222 (Fla. 6th DCA 2024) (citing
Art. I, § 10, Fla. Const.; Art. I, § 9, cl. 3, § 10, cl. 1, U.S. Const.).
17
application of the amendment. Under section
775.022(3)(a), the 2023 concealed
carry amendment “operates prospectively and does not affect or abate ....
...AND DISPOSITION THEREOF IF TIMELY FILED
______________________________________
WHITE, J., concurring in part, dissenting in part.
I concur with the majority’s conclusion that the trial court erred when it found
that section
775.022(4), Florida Statutes, required that the 2023 amendments to
section
790.01, Florida Statutes, be applied in this case. However, because I
conclude that the 2023 amendments to section
790.01, Florida Statutes, must be
applied here pursuant to section
775.022(5), Florida Statutes, I dissent from the
majority’s decision to reverse and remand.
18
I.
“In interpreting [a] statute, we follow th...
...19
the statutory term’s meaning. See Conage,
346 So. 3d at 599. With all those
principles guiding me, I turn to the task at hand.
II.A.
The Legislature has declared that section
775.022 “may not be construed to
limit the retroactive effect of any defense to a criminal statute enacted or amended
by the Legislature in a criminal case that has not yet resulted in the imposition of a
judgment or sentence by the trial court.” §
775.022(5), Fla. Stat. (2023) (emphasis
added). Therefore, it is essential to properly determine the meaning of “any,”
“defense,” and “criminal statute” to reach a fair reading of section
775.022(5).
II.B.
The term “any” is not defined in section
775.022....
...2017) (quoting Webster’s Third
New International Dictionary 97 (1993)). McNeil’s definition of “any” is properly
used in this case because a substantially different definition is not contained in a
Florida Supreme Court case or dictionary that existed when the Legislature enacted
section 775.022.
Although neither the Legislature nor the Florida Supreme Court defined
“defense,” a tried-and-true legal dictionary defined it as “[a] defendant’s stated
reason why the plaintiff or prosecutor has no valid case.” D...
...e term “criminal statute” has a
statutory definition: “a statute, whether substantive or procedural, dealing in any way
with a crime or its punishment, defining a crime or a defense to a crime, or providing
for the punishment of a crime.” § 775.022(2), Fla....
...a new
element within the definition of the crime or expressly authorizes the prohibited
conduct. If such statutory change is effective before a judgment or sentence is
imposed or affirmed, then the defendant may deploy it in his or her case. See §
775.022(5), Fla....
...Through her
pretrial sworn rule 3.190(c)(4) motion, Herard proved that she was expressly
authorized to carry a concealed firearm because she satisfied the statutory
requirements for a license and established that the State could not prove that she was
ineligible to receive and maintain a license. Section
775.022(5) entitled Herard to
rely on the 2023 amendment to section
790.01, so the trial court correctly granted
her motion to dismiss.
III.B.
The majority disagrees. They make no effort, however, to ascertain the
meaning of the key terms in section
775.022(5)....
...This extremely important
statutory canon is codified in section
775.021(1), Florida Statutes
(2012), which provides that, “[t]he provisions of this code and offenses
defined by other statutes shall be strictly construed; when the language
775.022(5)....
...canon against surplusage they invoke. See
Maj. Op., Part III.C.2. (first citing Hechtman,
840 So. 2d at 996; then citing Johnson,
485 So. 2d at 411; and then citing Scalia & Garner, supra, at 174–79). Furthermore,
the majority fails to explain why section
775.022(5) does not permit the retroactive
application of the brand-new express authorization in section
790.01(1), which is
independent of the definition of the crime and its elements in section
790.01(3), (4).
See supra Section II.C., Secti...
...Although the rule of lenity is a “canon of last resort,” it is
a “fundamental tenet of Florida law” and “not just an interpretative tool, but a
statutory directive.” Id. (first quoting Polite,
973 So. 2d at 1112; and then quoting
Kasischke v. State,
991 So. 2d 803, 814 (Fla. 2008)).
Here, section
775.022(5)’s undefined terms (e.g., “any” and “defense”),
defined term (i.e., “criminal statute”), and disputed phrase (“any defense to a
criminal statute enacted or amended by the Legislature”) must be interpreted “most
favorably” to Herard....
...uant to the
rule of lenity); see also id. at 10–11 (Canady, J., concurring) (finding that the rule of
lenity precluded the narrow interpretation of “antique firearm” and “replica”
advocated by the State). Therefore, my interpretation of section 775.022(5) carries
the day, and the trial court properly dismissed the information against Herard.
For all the foregoing reasons, I would affirm the trial court’s order granting
the motion to dismiss.
_______...
