Hart v. State of Florida

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

NATHAN SHIRL HART,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2023-0493

November 7, 2025

Appeal from the Circuit Court for Hillsborough County; Laura E. Ward,

Judge.

Lisa B. McLean, Public Defender, and Richard N. Asfar, Assistant Public

Defender, Tampa, for Appellant.

James Uthmeier, Attorney General; Henry C. Whitaker, Solicitor General

(withdrew after briefing); Alison Elena Preston, Deputy Solicitor General

(withdrew after briefing); and Jeffrey Paul DeSousa, Chief Deputy

Solicitor General, Tallahassee; and William C. Shelhart, Assistant

Attorney General, Tampa, for Appellee.

Paul M. Goodrich (withdrew after briefing) and Wesley A. Butensky of

Reed Smith LLP, Miami (substituted as counsel of record) and M. Patrick

Yingling of Reed Smith LLP, Chicago, Illinois (withdrew after briefing), for

Amicus Curiae Niskanen Center.

Catherine Kingsley Wettach; William Ossoff; and Hassan Ahmad of

Covington & Burling LLP, Washington, DC; Brendan Parets of Covington

& Burling LLP, Washington, DC (withdrew after briefing), for Amicus

Curiae Faith-Based Organizations and Religious Leaders.

Patrick O′Bryant, of Messer Caparello, P.A., Tallahassee; Andrew

Frackman, Danielle Feuer, Harrison Meyer of O′Melveny & Myers LLP,

New York, New York; Patrick Jones of O′Melveny & Myers LLP,

Washington, DC; and Patrick O′Bryant, Tallahassee, for Amici Curiae

Brennan Center for Justice at NYU School of Law and NAACP Legal

Defense and Educational Fund, Inc.

Samuel G. Williamson and Thomas S.P. Geeker of Quinn Emanuel

Urquhart & Sullivan, LLP, Miami, for Amicus Curiae The Association of

Prosecuting Attorneys.

Reid Levin, Raúl L. Martínez, and Robert C. Josefsberg of Reid Levin,

PLLC, Boca Raton; and Dean L. Chapman, Jr., and Andrew A.

McWhorter of Akin Gump Strauss Hauer & Feld LLP, New York, New

York, for Amici Curiae Former Members of the Commission on the

Statewide Prosecution Function.

Matthew R. Tuchman, Washington, DC, for Amici Curiae Due Process

Institute and Former Florida Senator Jeff Brandes.

Freddy Funes of Toth Funes PA, Miami; Eyitayo St. Matthew-Daniel,

Jonathan H. Hurwitz, and Michael S. Dauber of Paul, Weiss, Refkind,

Wharton & Garrison LLP, New York, New York (withdrew after briefing);

and Jane Yang of Paul, Weiss, Refkind, Wharton & Garrison LLP, New

York, New York (withdrew after briefing), for Amicus Curiae Florida

Rights Restoration Coalition.

NORTHCUTT, Judge

The Office of the Statewide Prosecutor (OSP) charged Nathan Shirl

Hart with making a false affirmation in connection with an election and

with voting by an unqualified elector. A jury convicted him of the former

and acquitted him of the latter. We conclude that the OSP lacked

jurisdiction to prosecute Hart because his alleged crimes occurred only

in a single circuit. Therefore, we reverse Hart's judgment and sentence.

2

Many years before the events at issue in this case, Hart was

convicted of a felony, and for that reason he was disqualified to vote until

and unless his voter rights were restored. See art. VI, § 4(a), Fla. Const.

(2004). Afterward, a 2018 ballot initiative amended article VI, section 4,

to provide for the automatic restoration of voter rights to citizens

convicted of certain offenses upon completion of their sentences or

parole. But the amendment expressly excluded the offense for which

Hart had been convicted. Thus, he was ineligible for the automatic

restoration of his rights.

After completing his sentence in 2019, Hart did not seek

restoration of his voting rights. But in 2020, at a voter registration table

outside a Department of Highway Safety and Motor Vehicles office in

Hillsborough County, he registered to vote.1 Hart completed a

registration application form that required him to make two relevant

affirmations. First, he checked the box next to the following statement:

"If I have been convicted of a felony, I affirm my voting rights have been

restored pursuant to s. 4, Art. VI of the State Constitution upon the

completion of all terms of my sentence, including parole or probation."

Second, Hart signed an oath at the foot of the document: "I do solemnly

swear (or affirm) . . . that I am qualified to register as an elector under

the Constitution and the laws of the State of Florida, and that all

information provided in this application is true."

1 At trial, Hart testified that he was approached by someone at the

table who told him that he might be eligible to vote based on the new

amendment and should fill out an application. This person told Hart

that if he was not eligible, he would not receive a voter registration card.

Ultimately, the veracity of Hart's defense is not a factor in our analysis of

the issue before us.

3

The Hillsborough County Supervisor of Elections later sent Hart a

voter registration card, and he voted in the November 2020 general

election at a polling place in Hillsborough County.

In 2022, the OSP filed a criminal information against Hart in the

Thirteenth Circuit stemming from his voter registration application and

his vote in the November 2020 election. In count I, the OSP alleged that

Hart "did willfully affirm falsely to an oath or affirmation in connection

with or arising out of voting or elections, contrary to Section 104.011(1)

Florida Statutes." In count II, the OSP alleged that Hart "did willfully

vote in an election knowing that he is not a qualified elector, contrary to

Section 104.15, Florida Statutes." Hart eventually moved to dismiss

pursuant to Florida Rule of Criminal Procedure 3.190(b), contending that

the OSP lacked jurisdiction to prosecute him for the alleged crimes. The

circuit court denied the motion.

Three district courts of appeal have addressed the OSP's

jurisdiction to prosecute under materially identical scenarios. In State v.

Hubbard, 392 So. 3d 1067, 1072–1073 (Fla. 4th DCA 2024), rev. granted

2025 WL 79096 (2025), and State v. Miller, 394 So. 3d 164, 170 (Fla. 3d

DCA 2024), divided panels of the Third and Fourth Districts reinstated

prosecutions that had been dismissed by circuit courts on the ground

that the OSP lacked jurisdiction. In State v. Washington, 403 So. 3d 465,

479–480 (Fla. 6th DCA 2025), the Sixth District held that the OSP had

no jurisdiction under such circumstances, and therefore, it affirmed an

order dismissing the prosecution. We agree with Washington and with

the dissents in Hubbard and Miller, and thus we conclude that the OSP

had no jurisdiction to prosecute Hart for the crimes charged against him.

The OSP was established in article 4, section 4(b) of the Florida

Constitution, which delineates its authority:

4

There is created in the office of the attorney general the

position of statewide prosecutor. The statewide prosecutor

shall have concurrent jurisdiction with the state attorneys to

prosecute violations of criminal laws occurring or having

occurred, in two or more judicial circuits as part of a related

transaction, or when any such offense is affecting or has

affected two or more judicial circuits as provided by general

law.

(Emphasis added). Consequently, there are two constitutional

circumstances in which the OSP has concurrent prosecutorial

jurisdiction with local state attorneys. "Occurrence" jurisdiction applies

to crimes that take place in two or more judicial circuits as part of a

related transaction. If provided by law, "effects" jurisdiction applies to

crimes that affect two or more judicial circuits.

When Hart was prosecuted, the legislature had enacted a statute

granting the OSP authority to investigate and prosecute a variety of

offenses, including "any crime involving voter registration, voting, or

candidate or issue petition activities." § 16.56(1)(a), Fla. Stat. (2022).

However, this authority was limited: The OSP was empowered to

prosecute such activities "only when any such offense is occurring, or

has occurred, in two or more judicial circuits as part of a related

transaction, or when any such offense is connected with an organized

criminal conspiracy affecting two or more judicial circuits." Id. Thus,

the statute repeated the constitutional grant of occurrence jurisdiction.

It further endowed the OSP with effects jurisdiction, but only with

respect to crimes connected with organized criminal conspiracies.

The statute imposed another requirement: "Informations or

indictments charging such offenses shall contain general allegations

stating the judicial circuits and counties in which crimes are alleged to

have occurred or the judicial circuits and counties in which crimes

affecting such circuits or counties are alleged." Id.

5

The information against Hart alleged facts consistent with the

OSP's occurrence jurisdiction; i.e., it charged that Hart committed crimes

"in the Thirteenth and Second Judicial Circuits of Florida, to wit:

Hillsborough and Leon Counties, Florida, as part of a related transaction

occurring in two or more judicial circuits." But the undisputed facts

upon which Hart's motion to dismiss was founded demonstrated that the

crimes with which he was charged occurred entirely within the

Thirteenth Circuit. An offense is complete upon the occurrence of all

elements of the crime. Sanders v. State, 77 So. 3d 914, 915–916 (Fla.

4th DCA 2012).2 Hart's alleged violation of section 104.011(1) was

complete when he "[swore] or affirm[ed]" to the representations in his

voter registration application. His alleged violation of section 104.15 was

complete when he voted in the November 2020 election. Both charged

crimes began and ended in Hillsborough County. Manifestly, the crimes

alleged against Hart occurred in but one circuit. As such, they were

insufficient to confer jurisdiction on the OSP.

In its traverse to the motion to dismiss, OSP ventured that Hart's

Hillsborough crimes were part of a related transaction in the Second

Circuit. This is because the Hillsborough supervisor of elections

transmitted Hart's voter registration information to the Florida Division

of Elections in Leon County for verification and the supervisor

2 In Sanders v. State, 77 So. 3d 914, 915–916 (Fla. 4th DCA 2012),

the defendant committed theft during a flight from Phoenix, Arizona, to

Ft. Lauderdale, Florida. She was charged and convicted in Florida, but

her conviction was overturned. The court ruled that because every

element necessary for the charged offense occurred before the

defendant's plane entered Florida airspace, even though the flight

continued to a landing in Florida (where presumably the defendant

hoped to get away), the offense did not occur in Florida.

6

transmitted Hart's ballot to the division for tabulating.3 The State

maintains this position on appeal, and it was the basis of the analyses by

the Third and Fourth Districts in Miller and Hubbard. But this position

ignores the plain language in the constitution and statute that requires

the commission of crimes in more than one circuit, and it conflates that

requirement with the second proviso that the crimes in two or more

circuits must be part of a related transaction.

Instead, we agree with Washington, and with Judge Scales's dissent

from the Miller decision and with Judge May's dissent in Hubbard. The

mere happening of a transaction related to a crime in a single circuit

does not vest the OSP with jurisdiction unless the related transaction

includes a crime in another circuit. To hold otherwise would be an

unwarranted expansion of the OSP's jurisdiction notwithstanding the

specific limiting language of the constitution and statute. See

Washington, 403 So. 3d at 474 ("[T]he OSP's occurrence jurisdiction

depends on a multi-circuit offense ('occurring' in multiple circuits) that is

also part of a multi-person venture or undertaking connected to the

offense ('part of a related transaction')."); Miller, 394 So. 3d at 172–173

(Scales, J., dissenting) (bemoaning the majority's "expansive interpretive

approach" whereas the statute only "narrowly authorizes OSP

involvement"); Hubbard, 392 So. 3d at 1073 (May, J., dissenting)

(complaining that the majority allows the OSP to "extend its reach farther

3 These assertions were not strictly accurate. Evidence at trial

showed that the Hillsborough County Supervisor of Elections sent the

driver license and social security information set forth on Hart's

registration application for verification by the division of elections

pursuant to section 97.053(6), Florida Statutes (2020). Further, the

votes in Hillsborough County were tabulated locally. Only the resulting

totals for federal or state offices were conveyed to the division. See

§§ 102.071, 102.112, Fla. Stat. (2020).

7

than my reading of the Florida Constitution and applicable statutes

allow").

Obviously, the activities of the Department of State in this case

were not crimes. Thus, because in Hart's case there were no alleged

criminal violations in two or more judicial circuits, there is no occasion

for us to determine whether the department's involvement in the electoral

process could be deemed a related transaction for these purposes. 4 Cf.

Washington, 403 So. 3d at 475 ("Because Washington's alleged offense

occurred in only one circuit, we do not have to decide whether it was also

part of a related transaction."); Miller, 394 So. 3d at 172 (Scales, J.,

dissenting) (stating that "the inquiry ends" when the defendant's charged

criminal act did not occur in more than one judicial circuit). To read

these provisions differently would render parts of them meaningless. See

Hillsborough Cnty. by & through Bd. of Cnty. Comm'rs v. Sch. Bd. of

Hillsborough Cnty., 395 So. 3d 1116, 1118 (Fla. 2d DCA 2024) (quoting

Florida Department of Environmental Protection v. Contractpoint Florida

4 The authorities cited by the State in support of its "related

transaction" argument are inapposite because all of them involved

criminal activity occurring in more than one circuit. For example, in

King v. State, 790 So. 2d 477 (Fla. 5th DCA 2001), the Fifth District held

the OSP had authority to prosecute local burglaries carried out for the

purpose of funding a multi-district motorcycle chop shop operation. In

Thomas v. State, 125 So. 3d 874 (Fla. 4th DCA 2013), there was an

organized criminal conspiracy with predicate acts committed in multiple

judicial circuits. In State v. Tacher, 84 So. 3d 1131 (Fla. 3d DCA 2012),

there was an extensive multi-district drug trafficking, money laundering,

and racketeering ring with codefendants receiving, transporting, and

selling drugs throughout the state. In Snyder v. State, 715 So. 2d 367

(Fla. 5th DCA 1998), the defendant swindled victims selling items in the

newspaper in four judicial circuits using counterfeit cashier's checks he

prepared on the same typewriter as part of a single scheme. Hart,

conversely, went to one DHSMV office by himself and one polling place by

himself, both of which were in a single judicial circuit.

8

Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008), for the proposition that

"[a] statute should be interpreted to give effect to every clause in it, and

to accord meaning and harmony to all of its parts and is not to be read in

isolation, but in the context of the entire section.")).

Neither do we agree with the State's claim that the statutory

amendment could expand the OSP's jurisdiction after Hart's jury trial.

The trial occurred on February 7, 2023, and the jury returned its verdict

that day. Effective February 15, 2023, before the trial court entered its

judgment and sentence, section 16.56 was amended to include a new

subsection specifically addressing specified voting-related offenses. Ch.

2023-2, Laws of Fla. The amendment removed the criminal conspiracy

element for this class of crimes. Instead, the amended statute states

that "[t]he office shall have such power [to investigate and prosecute

those voting offenses] only when any such offense is occurring, or has

occurred, in two or more judicial circuits as part of a related transaction,

or when any such offense is affecting, or has affected, two or more judicial

circuits." Id. (emphasis added).

The State argues that the revised statute is retroactively applicable

to Hart's case and that his conviction may be affirmed on that ground.

Indeed, in Hubbard the majority held that the 2023 amendment was

retroactive, and it reversed the dismissal of charges in part on that basis.

The Miller majority, having concluded that the OSP had jurisdiction

under the pre-amended version of the statute, declined to address

whether the amendment was retroactive. The amended statute took

effect two days after the information was dismissed in Washington. The

Sixth District held that because the State had not moved to amend the

information or otherwise raised the application of the new statute in the

trial court, its applicability was not preserved for appeal.

9

The State's argument here is similarly unavailing. Applying the

2023 statutory amendment to Hart's case would have necessitated

amending the information against him to allege this basis for the OSP

jurisdiction, as required by the statute. See § 16.56(1)(c), Fla.

Stat. (2023). Under Florida Rule of Criminal Procedure 3.140(j), an

information may be amended on motion to the trial court prior to trial—

and under some circumstances courts have approved amendments even

during trial. See State v. Mulvaney, 200 So. 3d 93, 96 (Fla. 5th DCA

2015). But the State has not given us an example of an information

being amended well after the trial, after the entry of judgment and

sentence, and after the taking of an appeal. In any event, the OSP never

moved the trial court for leave to amend the information in this case, and

the State cites no rule of law that authorizes us to order it done after-the-

fact.

Regardless, we conclude that the facts of this case did not fall

within the statutory amendment providing for OSP jurisdiction when a

voting crime in a single circuit has "affected" another circuit. The extra-

circuit "effect" relied upon by the OSP was the involvement of the

Department of State when verifying the driver's license and Social

Security numbers on Hart's voter registration application and when

accepting the voting tallies from the Hillsborough supervisor of elections.

The Hubbard majority subscribed to this theory. "[S]ubmitting a

fraudulent voter registration in Broward County is an act which requires

subsequent involvement of the Secretary of State in Leon County," the

court wrote. Hubbard, 392 So. 3d at 1073. "So too does voting in an

election in Broward County. As a result, the OSP had the authority to

charge Hubbard with these crimes." Id. The Hubbard majority went

10

even further, positing that "voter fraud impacts the public's confidence in

elections throughout the state." Id.

But the common meaning of affect is something more than the

mere tangential performance of a regular agency function in the normal

course, or ephemeral notions of public opinion about crime in general.

Black's Law Dictionary defines affect as "[m]ost generally, to produce an

effect on; to influence in some way." Affect, Black's Law Dictionary (11th

ed. 2019) (emphasis added). And Merriam-Webster's Collegiate Dictionary

defines affect, in part, as "to produce a material influence on or alteration

in." Affect, Merriam-Webster's Collegiate Dictionary (11th ed. 2020)

(emphasis added).

Here, there was no suggestion that Hart's offenses produced any

material influence on or alteration in the routine activity of the

Department of State. As Judge May wrote in her dissent in Hubbard, to

recognize OSP jurisdiction in such circumstances would be "to expand

the OSP's reach beyond its constitutional and statutory limits."

Hubbard, 392 So. 3d at 1075.

To follow the OSP's logic to its full extent, any act committed

in a single judicial circuit that involves licensing in the

Second Judicial Circuit would necessarily fall within the

grasp of the OSP's overreaching arm. Crimes such as driving

with a suspended driver's license, or violation of a state-

issued license or state agency regulation would all transform

a single judicial circuit offense into one that the OSP could

prosecute. That cannot be supported by either the

constitution or the enabling legislation. Nor should the OSP

be able to cherry-pick when it can prosecute a single-circuit

crime.

Id. In fact, by the Hubbard majority's reasoning, the OSP would be

authorized to prosecute virtually any crime in the state because the

public is concerned with crime rates. In short, notwithstanding the clear

intention of the constitution and enabling statute to constrain its

11

authority within strict limits, the OSP's jurisdiction effectively would

extend throughout Florida, unbound by any effective limitation.

For the foregoing reasons, we conclude that the Office of the

Statewide Prosecutor lacked prosecuting authority over the offenses

charged against Hart. We reverse Hart's conviction and sentence and

remand with directions to dismiss the information. We certify that our

decision conflicts with those of the Third and Fourth Districts in State v.

Hubbard, 392 So. 3d 1067 (Fla. 4th DCA 2024), reh'g denied (Sept. 23,

2024), review granted, No. SC2024-1522, 2025 WL 79096 (Fla. Jan. 13,

2025); and State v. Miller, 394 So. 3d 164 (Fla. 3d DCA 2024), reh'g

denied (Aug. 21, 2024).

Reversed and remanded with directions; conflict certified.

VILLANTI, Concurs.

ATKINSON, J., Concurs in result only with an opinion.

ATKINSON, Judge, Concurring in result only.

I agree with the majority that the judgment and sentence must be

reversed because under the facts and procedural history of this case, the

Office of Statewide Prosecutor (OSP) lacked jurisdiction under the State's

charged theory that Mr. Hart committed crimes that occurred in more

than one judicial circuit as part of a related transaction. As such, I

concur in result only. I write separately to explain why I disagree with

the majority's conclusion that OSP would lack "effects" jurisdiction under

the amended statute. I also write separately to address one of the State's

arguments and its similarity to an argument advanced by the Third

District Court of Appeal concerning OSP's "occurrence" jurisdiction that I

respectfully consider to be flawed.

I.

12

OSP has "occurrence" jurisdiction when an eligible offense "is

occurring, or has occurred, in two or more judicial circuits as part of a

related transaction." § 16.56(1)(a), Fla. Stat. (2020). In this case, the

State theorizes that OSP has "occurrence" jurisdiction because Mr. Hart's

false affirmation was part of a related transaction, the components of

which took place in two circuits, thereby invoking OSP's jurisdiction.

First, it occurred in the Thirteenth Circuit when Mr. Hart registered to

vote. Then, it occurred in the Second Circuit when the Florida

Department of State verified his registration.

To support its theory, the State argues that the " 'related

transaction' need not be comprised exclusively of criminal activity."

Citing King v. State, 790 So. 2d 477 (Fla. 5th DCA 2001), the State points

to burglary as a crime under the ambit of OSP's jurisdiction but which

can only logically occur in one location (that of the structure being

burglarized), presumably within one circuit. From this, the State draws

the conclusion that OSP's "occurrence" jurisdiction need not involve

crimes that occur in more than one circuit so long as the transaction to

which the single-circuit criminal activity is related involves another

circuit. See id. at 479 ("Nothing is more 'local' than a burglary unless the

property burgled happens to sit on both sides of a county line."). As the

majority points out, King and cases like it do not support the State's

jurisdictional argument.

The State relies upon the reasoning of King to construct the

reductio ad absurdum argument that because "all the elements of a

burglary will occur simultaneously in the same place" (not in two

separate circuits), burglary could never be prosecuted by the OSP under

Mr. Hart's restrictive theory of OSP jurisdiction even though burglary is

explicitly enumerated as a prosecutable crime in the OSP statute. But it

13

is not a necessary implication of Mr. Hart's argument or the majority's

reasoning that OSP can never prosecute a burglary because that crime

cannot occur in more than one place. OSP can prosecute burglaries—

even if the structure being burglarized is located completely within the

bounds of one circuit and does not happen to straddle a circuit border.

However, the burglary must be part of a related transaction that includes

one or more other crimes that occur in at least one other circuit. In King,

the Fifth District was contemplating "a series of burglaries occurring in

separate circuits [that] were related." See id. (emphasis added). In this

case, by contrast, the State is alleging a series of occurrences that

include only one crime in one circuit, combining that crime with

noncriminal actions (committed by third parties) in another circuit to

arrive at what it passes off as "occurrence" jurisdiction based on a multi-

circuit transaction related to one crime occurring in a single circuit. In

doing so, the State conflates the "related transaction" that must occur

across multiple circuits with individual crimes that can each occur

within one of those circuits. But, contrary to the State's argument,

single circuit crimes can form a basis for OSP jurisdiction only if there

are at least a total of two crimes that occur in different circuits. Criminals

could, for example, plan to burglarize a dwelling in one circuit but fence

the stolen property in another circuit. See § 810.02(1)(b), Fla. Stat.

(2020) (" '[B]urglary' means . . . [e]ntering a dwelling, a structure, or a

conveyance with the intent to commit an offense therein, unless the

premises are at the time open to the public or the defendant is licensed

or invited to enter . . . ."); § 812.019(1) ("Any person who traffics in, or

endeavors to traffic in, property that he or she knows or should know

was stolen shall be guilty of a felony of the second degree . . . ."). In that

scenario, there will be "violations of criminal laws" that take place in two

14

or more circuits, see art. IV, § 4(b), Fla. Const.—the burglary that occurs

in one circuit and the fencing of the stolen property that occurs in

another circuit. Cf. King, 790 So. 2d at 479 ("King had for some time . . .

operated a motorcycle chop shop in Orange County (Ninth Circuit) which

depended in part on stolen motorcycles from Volusia County (Seventh

Circuit)."). Those criminal law violations would have occurred "as part of

a related transaction," see art. IV, § 4(b), Fla. Const.—the pilfering of

goods where they could be obtained with a plan to sell the ill-gotten

items where there were available buyers.

The State's formulation, by contrast, is unsupported by the

constitutional language conferring jurisdiction on OSP. Under the

constitution, it is not only the related transaction that must involve more

than one circuit but also the crimes themselves that must occur in "two

or more judicial circuits." Id. The constitution uses the phrase

"violations of criminal laws" when it describes what must occur in two or

more circuits: "The statewide prosecutor shall have concurrent

jurisdiction with the state attorneys to prosecute violations of criminal

laws occurring or having occurred, in two or more judicial circuits as

part of a related transaction . . . ." See id. (emphasis added). That

language puts the lie to the theory that OSP can prosecute crimes

occurring in only one circuit because they are part of a related

transaction that involves noncriminal activity in other circuits. Under

the State's theory, the aspects of the related transaction that allegedly

occurred outside of the Thirteenth Circuit—for example, the Florida

Department of State's receipt of voter registration information—are not

"violations of criminal laws." But that is what the constitution requires

to be "occurring" or to have "occurred" in more than one judicial circuit—

"violations of criminal laws." See id.

15

Advancing an argument that I perceive to be similarly flawed, the

Third District in Miller erroneously construed the noncriminal activity

undertaken by third parties in another circuit as part of and necessary to

the completion of the crime committed by the defendant in the circuit in

which the crime was being prosecuted. See State v. Miller, 394 So. 3d

164, 168–69 (Fla. 3d DCA 2024) ("Miller would not have been able to

register to vote, and ultimately vote, without his filling out the form in

Miami-Dade County, the processing and approval of his voter registration

in Leon County, and the conveyance of such approval back to Miami-

Dade County. . . . [T]hese transactions that occurred in multiple

jurisdictions were not only related, but they were also required acts

before Miller got his voter registration and proceeded to vote."). In so

doing, the Third District mischaracterized the crimes with which the

defendant was prosecuted. The crimes were "making false affirmations

in connection with an election and . . . voter fraud," see id. at 166 (citing

§§ 104.011, .15, Fla. Stat. (2020))—not becoming a registered voter and

not having one's vote counted. The crimes were committed when the

defendant submitted false information on his application and when the

defendant cast his ballot. As to both offenses, the acts that

consummated the offense were committed solely in Miami-Dade County.

Indeed, by the Third District's logic, no person could ever commit a

violation of section 104.011 if the Department of State does not verify the

authenticity of the information on a voter registration. Under

circumstances in which a voter registration application is never

transmitted to Leon County in the Second Circuit, cf., e.g., § 97.053(2),

Fla. Stat. (2020) (requiring that voter registration applications be

"complete" with "all information necessary to establish the applicant's

eligibility" before verification by the Florida Department of State);

16

§ 97.073(1) (explaining that the supervisor of elections must notify the

applicant if his or her application is incomplete and request the missing

information), an individual who attempted to register fraudulently would

not have committed a crime under the Third District's rationale. If, for

example, a would-be perpetrator's prevarication is detected before his or

her application is sent to the Department of State and he or she never

becomes a registered voter, then—according to the reasoning of the Third

District's Miller opinion—the individual has committed no crime even

though he or she did "willfully submit[] . . . false voter registration

information" or "swear[] or affirm[] falsely" on a voter registration

application. § 104.011(1)–(2).

Fortunately, criminal liability under section 104.011 does not

depend on a failure of efforts to interdict such fraudulent voter

registration activity and stymie it before it affects the electoral process. A

violation of the prohibitions on swearing falsely and submitting false

voter registration information in section 104.011 does not require the

consummation of the registration process; rather, the crime has been

committed when the defendant swears falsely or submits the false

information. Cf. § 97.053(1) ("Voter registration applications . . . must be

accepted in the office of any supervisor, the division, a driver license

office, a voter registration agency, or an armed forces recruitment office

when hand delivered by the applicant or a third party during the hours

that office is open or when mailed."); § 97.053(3) ("The registration date

for a valid initial voter registration application that has been hand

delivered is the date that the application is received . . . ."); § 97.053(4)

("The registration date for a valid initial voter registration application that

has been mailed . . . is the date of that postmark.").

17

And a violation of the prohibition on the willful voting by

unqualified electors under section 104.15 does not require the

perpetrator's vote to be tallied and counted among those comprising the

ultimate vote totals at the Department of State in the Second Circuit.

Rather, the crime of unqualified voting has been committed once the

perpetrator casts his or her ballot. Nothing in the Florida Election Code

indicates that an individual's act of voting is inchoate until the county

vote totals are sent from the local supervisor of elections to the

Department of State. Cf. § 97.021(9) (" 'Early voting' means casting a

ballot prior to election day at a location designated by the supervisor of

elections and depositing the voted ballot in the tabulation system."

(emphasis added)); § 97.021(25) (defining " 'Overvote' as when an "elector

marks or designates more names than there are persons to be elected to

an office or designates more than one answer to a ballot question" even

though "the tabulator records no vote for the office or question."). Thus,

the Third District was mistaken when it concluded that the crime

"wouldn't have occurred" "but for" "the transmission to, and processing

of, the voting form in Tallahassee, Leon County." See Miller, 394 So. 3d at

169 n.4 ("[W]hile Miller himself acted only in one jurisdiction, the chain

of events that led to the consummation of the crime necessarily occurred

in two or more jurisdictions."). Again, the crimes are not making it onto

the voter rolls or affecting the vote total. The crimes are swearing falsely,

submitting false voter registration information, and voting. Contrary to

the Third District's rationale, voting is "consummat[ed]," see id., when

the ballot is cast, and the registration crimes are consummated when the

oath is sworn or the information is submitted, long before any election

returns or voter registration data might make their way to the Division of

Elections in the Second Circuit. Cf. § 97.021(44) (" 'Voter registration

18

official' means any supervisor of elections or individual authorized by the

Secretary of State to accept voter registration applications and execute

updates to the statewide voter registration system."); § 101.041, Fla.

Stat. (2020) ("In all elections[,] . . . the voting shall be by secret, official

ballot as provided by this code . . . ."). Thus, the "related transactions"

undertaken in the Second Circuit when the Department of State receives

voter registration information or vote totals from the Supervisors of

Elections are not at all "necessary" for the commission of the crimes

being prosecuted. And the Third District's reliance on those noncriminal

activities as transactions relating to single-circuit law violations for

purposes of OSP's "occurrence" jurisdiction is contrary to the language of

the constitutional jurisdiction clause and related statutes, as well as that

of the criminal statutes under which Messrs. Miller and Hart were

prosecuted.

II.

While I agree with the result reached by the majority, I disagree

with its conclusion that OSP would lack "effects" jurisdiction under the

amended statute if it applied Mr. Hart's case. Like the majority, I am

skeptical that nebulous notions of effects on public opinion are within

the ordinary meaning of the term "affect." See State v. Hubbard, 392 So.

3d 1067, 1073 (Fla. 4th DCA 2024) (concluding OSP had jurisdiction

because "voter fraud impacts the public's confidence in elections

throughout the state"). However, it cannot be said that election fraud

occurring in Hillsborough County in the Thirteenth Circuit has no effect

on what happens at the Department of State in Leon County in the

Second Circuit—the latter being the location where the voting results are

received for verification and the ultimate pronouncement of the official

results of an election.

19

The majority points out that "the votes in Hillsborough County were

tabulated locally" and that "[o]nly the resulting totals for federal or state

offices were conveyed to the division" in the Second Circuit. See Maj. Op.

at 6 n.3. Omitted from that discussion is what happens with those vote

totals in the Second Circuit—they are received by the Department of

State and then added together with the vote totals from all the other

counties to determine who won the elections for those federal and state

offices. See § 102.112(1), Fla. Stat. (2020) ("The county canvassing board

or a majority thereof shall file the county returns for the election of a

federal or state officer with the Department of State immediately after

certification of the election results."); § 102.111(2) ("The Elections

Canvassing Commission shall meet . . . to certify the returns of the

election for each federal, state, and multicounty office."); § 102.121 ("The

Elections Canvassing Commission shall make and sign separate

certificates of the result of the election for federal and state officers,

which certificates shall be written and contain the total number of votes

cast for each person for each office."). The sum of those vote totals would

be different if Mr. Hart had not cast a vote in Hillsborough County; it

would be reduced by one. Thus, Mr. Hart's crime, committed in

Hillsborough County in the Thirteenth Circuit, undoubtedly affects

another circuit—the Second Circuit, where the Department of State and

the Elections Canvassing Commission will arrive at a different vote total

as a consequence of the illegal vote cast by Mr. Hart, increasing the

Hillsborough County vote total by one and increasing the statewide total

by one. Regardless of whether that one fraudulent vote swung the result

of the election from any one candidate in favor of another, it cannot be

gainsaid that the total amount of votes received by any candidate for

whom Mr. Hart voted was altered by Mr. Hart having cast an illegal vote.

20

This effect on the statewide total of the votes that were ultimately tallied

in Leon County for the federal and statewide races is mathematically

undeniable.

The ramifications of Mr. Hart's acts committed in Hillsborough

County thereby "affects" Leon County in a manner consistent with the

dictionary definitions of the term relied upon by the majority. It is logical

and intuitive that voter fraud "influence[s]" what happens in the Second

Circuit—the addition of a fraudulent vote "produce[s] a material influence"

on the result of the process of tallying the county vote totals cast

throughout the State and the pronouncing of election winners; it causes

an "alteration" in the number of votes computed in favor of a candidate or

ballot initiative.

Likewise, the submission of false voter registration information or

false swearing or affirming on a voter application could affect the Second

Circuit, within which the Department of State maintains voter rolls. See

§ 97.021(17) (" 'Lists of registered electors' means names and associated

information of registered electors maintained by the department in the

statewide voter registration system or generated or derived from the

statewide voter registration system." (emphasis added)); § 98.035(1)–(2),

Fla. Stat. ("The Secretary of State, as chief election officer of the state,

shall be responsible for implementing, operating, and maintaining, in a

uniform and nondiscriminatory manner, a single, uniform, official,

centralized, interactive, computerized statewide voter registration system

. . . [which] must contain the name and registration information of every

legally registered voter in the state. . . . The system shall be the official

list of registered voters in the state . . . ."). Statutorily, the Department of

State has involvement with every voter registration application, playing

an integral role in verifying the information that a voter registration

21

applicant submits. See § 97.053(6) ("A voter registration application may

be accepted as valid only after the department has verified the

authenticity or nonexistence of the driver license number, the Florida

identification card number, or the last four digits of the social security

number provided by the applicant." (emphasis added)); § 97.053(2) ("A

voter registration application is complete and becomes the official voter

registration record of that applicant when all information necessary to

establish the applicant's eligibility pursuant to s. 97.041 is received by a

voter registration official and verified pursuant to subsection (6)."

(emphasis added)). Fraudulent voter registration information submitted

in violation of section 104.011 that encounters the security net of the

verification process at the Department of State in Leon County—and, if

the application slips through that net, leads to an additional voter on the

rolls who should not be there—undoubtedly "affects" the Second Circuit.

Further affecting operations of the Department in the Second Circuit,

any such fraudulent voter application registrant who initially slipped

through might become the subject of the Department's duty to remove

the individual if his ineligibility is later detected. See § 98.075(1), (5)

(mandating that "[t]he department shall protect the integrity of the

electoral process by ensuring the maintenance of accurate and current

voter registration records" and providing for procedures by which the

department should identify and facilitate the removal of ineligible

registered voters, such as, for example, “those registered voters who have

been convicted of a felony and whose voting rights have not been

restored").

For these reasons, I contend that the violations of law committed

by Mr. Hart would have afforded OSP prosecutorial jurisdiction under the

22

amended statute's "affects" provision if it applied in this case.5 Being

that it does not apply, I concur in result only with the majority's

conclusion that OSP lacked jurisdiction under the "occurring" provision

upon which the State based the allegations of the information that led to

Mr. Hart's conviction.

Opinion subject to revision prior to official publication.

5 I agree with the Fourth District insofar as its retroactivity analysis

indicates that application to conduct that predated the statutory

amendment (such as Mr. Hart's criminal conduct) would not constitute

an impermissible retroactive application of the amended statute. See

State v. Hubbard, 392 So. 3d 1067, 1072 (Fla. 4th DCA 2024) ("The 2023

amendments to section 16.56 do not expand or diminish Hubbard's

rights. The amendments merely address whether the local prosecutor or

the OSP has the authority to prosecute certain cases. . . . Thus, the

amendments do not impact elements of the offense or the punishment if

convicted, but only which arm of the state conducts the prosecution[,]

. . . [and they] do not apply 'new legal consequences to events completed

before its enactment.' " (quoting Love v. State, 286 So. 3d 177, 187 (Fla.

2019))). However, "whether a new procedural statute applies in a

pending case will generally turn on the posture of the case, not the date

of the events giving rise to the case," and such applicability would not be

"in and of itself a retrospective operation of the statute." See Love, 286

So. 3d at 187–88 ("Of course, the mere fact that a new rule is procedural

does not mean that it applies to every pending case. A new rule

concerning the filing of complaints would not govern an action in which

the complaint had already been properly filed under the old regime . . . ."

(quoting Landgraf v. USI Film Prods., 511 U.S. 244, 275 n.29 (1994))). In

Hubbard, the appellate court reversed an order dismissing the

information filed by the State. Hubbard, 392 So. 3d at 1069 ("[W]e

reverse the circuit court's dismissal and remand for further

proceedings."). In this case, Mr. Hart has already been charged, tried,

and found guilty—a case posture that is not conducive to a

"commonsense" application of a newly amended procedural provision.

Cf. Love, 286 So. 3d at 187–88 (concluding that an amended procedural

provision applied only "to those immunity hearings, including in pending

cases, that take place on or after the statute's effective date").

23