STATE OF FLORIDA v. ANDREW SCOTT CROSE

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

STATE OF FLORIDA,

Appellant,

v.

ANDREW SCOTT CROSE,

Appellee.

No. 2D21-2784

January 26, 2024

Appeal from the Circuit Court for Sarasota County; Donna Padar, Judge.

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General,

Jeffrey Paul DeSousa, Chief Deputy Solicitor General, Tallahassee, and

Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender, and Daniel Muller, Assistant

Public Defender, Bartow, for Appellee.

EN BANC

LUCAS, Judge.

The State of Florida appeals an order dismissing a charge against

Andrew Scott Crose for failure of a sex offender to report an electronic

mail address or instant message name, a violation of sections

943.0435(4)(e) and (9), Florida Statutes (2019). The issue before the

circuit court was whether, at the time of his alleged offense, Mr. Crose

had completed the underlying "sanction" of his original offense such that

he was required to register as a sex offender. If he had completed the

sanction, he could be prosecuted for this offense; if he hadn't, he

couldn't.

Whether a sex offender has completed his prior criminal sanction

would seem to be a relatively simple inquiry. But a panel decision

interpreting section 943.0435(1)'s definition of "the sanction," followed by

a legislative amendment in response to that decision, followed by a

subsequent panel decision responding to that amendment, complicates

the matter. We proceed en banc today for two purposes: to resolve our

conflicting panel decisions and, more broadly, to address the facet of

common law that precipitated that conflict.

I.

Because of the nature of the issue we must address and how the

timing of legal developments impacted the proceedings below, our

recitation of the facts and our legal analysis are somewhat intertwined.

In this section, we recount Mr. Crose's criminal history, the charge the

State now alleges against him, and how the law concerning that criminal

charge has changed during the course of the circuit court case and this

appeal.

A.

In 2016, Mr. Crose was convicted for the use of a computer to

seduce, solicit, or entice a child to commit a sex act in violation of section

847.0135(3)(a), Florida Statutes (2015). He was sentenced to four years

in prison, followed by one year of sex offender probation, and designated

as a "sex offender" under section 943.0435(1)(a)1. In 2019, after Mr.

Crose had been released from prison but while he was still serving

2

probation, he was again arrested for use of a computer to solicit a child

to commit a sex act and for traveling to solicit a child to commit a sex

act. The State alleges that Mr. Crose used an instant message or social

media account on the "MeetMe" application to commit the offense in July

of that year.

In the case at bar, the State charged Mr. Crose with failure of a sex

offender to report an electronic mail address or instant message name

under sections 943.0435(4)(e) and (9), a third-degree felony.1 Mr. Crose

filed, pro se, a motion to dismiss the charge, arguing that since his

sanction was not completed (because he hadn't finished probation) he

wasn't (yet) required to register his e-mail or instant message names as a

sex offender.

In order to better understand what transpired in the circuit court

proceedings, we must pause here and unpack what his argument

entailed. Under section 943.0435(4)(e), a designated "sex offender" is

required to undertake a variety of registration requirements, including

registering e-mail and instant messaging accounts. At the time of Mr.

Crose's offense, the pertinent parts of section 943.0435(1)(h) defined who

qualifies as a "sex offender" (and, hence, who must register) as follows:

(h) 1. "Sexual offender" means a person who meets the criteria

in sub-subparagraph a., sub-subparagraph b., sub-

subparagraph c., or sub-subparagraph d., as follows:

a. (I) Has been convicted of committing, or attempting,

soliciting, or conspiring to commit, any of the criminal

offenses proscribed in the following statutes in this state or

1 We are informed that the State has also pursued a separate

violation of probation proceeding against Mr. Crose. Nothing in our

opinion today addresses any aspect of that proceeding. We would also

note that although there are other statutory registration requirements for

offenses such as Mr. Crose's, section 943.0435(4)(e) is the only one the

State pursued in the case before us.

3

similar offenses in another jurisdiction: s. 393.135(2); s.

394.4593(2); s. 787.01, s. 787.02, or s. 787.025(2)(c), where

the victim is a minor; s. 787.06(3)(b), (d), (f), or (g); former s.

787.06(3)(h); s. 794.011, excluding s. 794.011(10); s. 794.05;

former s. 796.03; former s. 796.035; s. 800.04; s. 810.145(8);

s. 825.1025; s. 827.071; s. 847.0133; s. 847.0135, excluding

s. 847.0135(6); s. 847.0137; s. 847.0138; s. 847.0145; . . . or

any similar offense committed in this state which has been

redesignated from a former statute number to one of those

listed in this sub-sub-subparagraph; and

(II) Has been released on or after October 1, 1997, from the

sanction imposed for any conviction of an offense described

in sub-sub-subparagraph (I). For purposes of sub-sub-

subparagraph (I), a sanction imposed in this state or in

any other jurisdiction 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 . . . .

(Emphasis added.)

In State v. James, 298 So. 3d 90 (Fla. 2d DCA 2020), we construed

this statutory language to affirm a trial court's dismissal of a failure to

register charge in a situation almost identical to Mr. Crose's. The

defendant in James had completed his incarceration, but he hadn't paid

his $10,000 fine, which was part of the sanction the court had imposed.

James, 298 So. 3d at 91. Citing fundamental principles of statutory

construction, we concluded that

Mr. James' entire "sanction" for his conviction under section

800.04 consists of fifteen years' prison and a $10,000

fine. . . . Accordingly, his sanction, as a whole, has not been

released, and he does not qualify as a "sexual offender" for

purposes of reporting and registration under section

943.0435.

4

Id. at 92. Mr. Crose's motion to dismiss argued that James'

interpretation and application of the statute was dispositive and required

dismissal of this criminal charge.

B.

If James had remained the last word on the subject, the circuit

court's ruling (and the assigned panel's review of it) would have been

relatively uncomplicated. But within a relatively short span of time, two

developments transpired.

1.

The first was the legislature's amendment to subsection (h)1 of

section 943.0435(1), which was enacted during the session immediately

following James' issuance, well after Mr. Crose's alleged offense but

before the circuit court had heard Mr. Crose's motion to dismiss.

In amending the subsection, the legislature specifically stated:

The Legislature finds that the opinion in State v. James,

298 So. 3d 90 (Fla. 2d DCA 2020), 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.

The Legislature 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.

See ch. 2021-156, § 1, Laws of Fla. (2021) (emphases added). The

legislature also amended section 943.0435(1)(h)1.a.II, removing "fine"

from the list of penalties that could be construed as a "sanction."

Armed with this new enactment, the State sought to convince the

circuit court that the charge against Mr. Crose should be allowed to

proceed. The State didn't go so far as to suggest that the amended

5

version of the statute should apply, after the fact, to Mr. Crose's criminal

charge, which arose from conduct that allegedly occurred some two years

before the amendment went into effect. But the State did maintain that

the circuit court could—and should—consider the legislature's stated

intention when it amended the statute because the amendment

"effectively overturn[ed] James."

The circuit court was not persuaded by the State's arguments. In

granting Mr. Crose's motion to dismiss, the court ruled:

Based on the facts and circumstances of this case and the

language of the applicable statute, the Court finds the

Defendant's argument persuasive and the James case

controlling. Though[] the legislature has now made its intent

clear, the modification has not yet gone into effect. At the

time the Defendant committed the alleged crime in this case,

he was on probation and still under the supervision of the

Department of Corrections.

The State then filed a motion for rehearing and fleshed out its prior

argument. On rehearing, the State pointed out that the amendment to

section 943.0435 had, in fact, gone into effect by the time the court ruled

upon the motion to dismiss,2 that James was not controlling "because

the James court did not have the benefit of a clear statement of the

Legislature's intent, as this Court now does," and that since the circuit

court now knew what the legislature's intent about the prior version of

the statutory language truly was (that is, that the completion of any part

2 Factually speaking, the State was correct on this point, insofar as

the amendments became effective on July 1, 2021, and the trial court

rendered its order on July 30. The point, however, was a non sequitur

because, again, Mr. Crose's alleged criminal conduct occurred in July of

2019. 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." (quoting State v. Smith, 547 So. 2d 613, 616 (Fla. 1989))).

6

of "a sanction" should trigger the requirement to register as a sex

offender), the court should deny Mr. Crose's motion to dismiss.

Mr. Crose (now represented by the Public Defender's office)

countered that notwithstanding the subsequent amendment to the

statute, James was controlling precedent and that, as such, it had to be

applied to Mr. Crose's case. Furthermore, he argued that allowing the

legislature to retroactively refine the application of a criminal statute

violated the constitutional prohibition against ex post facto laws.3

The court again agreed with Mr. Crose and entered an amended

order granting his motion to dismiss. In addition to the reasoning set forth

in its prior order, the court added:

[A]pplying the new 2021 statutory definition to Defendant's

2019 conduct runs afoul of the prohibition against ex post

facto laws: "For a criminal law to be ex post facto it must be

retrospective, that is, it must apply to events that occurred

before its enactment; and it must alter the definition of

criminal conduct or increase the penalty by which a crime is

punishable." Victorino v. State, 241 So. 3d 48[, 50] (Fla. 2018)

(citing Lynce v. Mathis, 519 U.S. 433 (1997)). The effect of

applying the 2021 change in the definition of "sexual offender"

to Defendant's status and his conduct in 2019 amounts to an

ex post facto law.

The State then initiated its appeal.

2.

The second development arose while the State's appeal was under

consideration. Before Mr. Crose filed his answer brief, this court

changed course, so to speak, about how to interpret section

935.0435(1)(h)1's definition of a sexual offender. In Hull v. State, 349 So.

3 Accord art. I, § 10, cl. 1, U.S. Const. ("No State shall . . . pass any

Bill of Attainder, ex post facto Law . . . ."); art. I, § 10, Fla. Const.

("Prohibited laws.—No bill of attainder, ex post facto law or law impairing

the obligation of contracts shall be passed.").

7

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." The holding in Hull directly contradicted the court's prior

holding in James, even though the operative term at issue in Hull—that

the defendant be released from "the sanction"—was precisely the same

one as was at issue in James. Contra James, Hull held that a sex

offender defendant did indeed have to register, notwithstanding his

nonpayment of the $10,000 fine that was part of his criminal sanction.

Id. at 465.

Why the turnaround from James? The Hull majority concluded

that it was bound by the "recent controversy rule" to reexamine our prior

application of the prior version of section 943.0435(1). We explained:

Under this [the recent controversy] 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).

Id. at 462 n.4.

Applying this rule, Hull held that "the legislature's abrogation of

James and the legislature's express and specific clarification of its intent"

bound the court "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." Id. at 465.

8

With Mr. Crose's appeal still "in the pipeline" at the time Hull

issued, see Wheeler v. State, 344 So. 2d 244, 245 (Fla. 1977) ("The

decisional law in effect at the time an appeal is decided governs the

issues raised on appeal, even where there has been a change of law since

the time of trial." (citing Evans v. St. Regis Paper Co., 287 So. 2d 296 (Fla.

1973); Williams v. Wainwright, 325 So. 2d 485 (Fla. 4th DCA 1975);

Cosby v. State, 297 So. 2d 617 (Fla. 1st DCA 1974))), the panel assigned

to the case at bar found itself in the dilemma of having two recent,

binding panel decisions that would yield two diametrically different

outcomes. Under James' construction of the statute, the court's

dismissal of Mr. Crose's charge would be affirmed; under Hull, a reversal

would be required.

The State, not surprisingly, urges us to ignore James and follow

Hull. Mr. Crose argues that we got it right in James and wrong in Hull.

In his briefing, Mr. Crose picks up the argument raised below concerning

the ex post facto application of the post-James statutory amendment. He

maintains that the recent controversy rule amounts to an

unconstitutional after-the-fact amendment of criminal law and, in all

events, violates the supremacy-of-text principle of statutory construction.

On its own motion the court voted to proceed en banc. See Fla. R.

App. P. 9.331(a). With the benefit of supplemental briefing from the

parties, we now proceed with resolving this case and the conflict that has

arisen in our court's panel decisions.

II.

"Because a motion to dismiss pursuant to rule 3.190(c)(4) requires

the lower court to make a pretrial determination of the law of the case

when the facts are not in dispute, the standard of review on appeal is de

novo." State v. Delprete, 331 So. 3d 174, 176 (Fla. 4th DCA 2021)

9

(quoting State v. Benjamin, 187 So. 3d 352, 354 (Fla. 4th DCA 2016)).

There were no facts in dispute before the circuit court; this case turns on

an interpretation of a statute, a legal determination that is reviewed de

novo. See Braine v. State, 255 So. 3d 470, 471 (Fla. 2d DCA 2018)

("Statutory interpretation raises an issue of law, and we review the trial

court's ruling de novo." (quoting Wegner v. State, 928 So. 2d 436, 438

(Fla. 2d DCA 2006))).

When interpreting statutes, the Florida Supreme Court has now

instructed us to "follow the 'supremacy-of-text principle'—namely, the

principle that '[t]he words of a governing text are of paramount concern,

and what they convey, in their context, is what the text means.' " Ham v.

Portfolio Recovery Assocs., 308 So. 3d 942, 946 (Fla. 2020) (alteration in

original) (quoting Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012)). Our interpretative work here,

however, cannot be performed without first considering the body of case

law surrounding the recent controversy rule, a task to which we will now

turn.

III.

Our analysis will begin with an examination of the issue seized

upon in Hull and the heart of this case, the recent controversy rule. We

will proceed through this rule's history, its development, and its current

state in our district. We will then examine several reasons why we

believe this common law rule can no longer be aligned within current

Florida jurisprudence. We will conclude by resolving this case in light of

the principles of statutory interpretation we are now charged with

applying.

A.

1.

10

We can trace the first application of what would eventually become

the recent controversy rule4 to a sales tax dispute. In Gay v. Canada Dry

Bottling Co. of Florida, 59 So. 2d 788, 788 (Fla. 1952), the Florida

Supreme Court was called upon to decide whether a soft drink bottler

purchasing bottles, cases, and parts for the purpose of distributing its

products was engaged in a "retail sale" subject to tax under section

212.03(3), Florida Statutes (1949). The court canvassed and contrasted

other state court decisions that had exempted nonreturnable containers

from retail sale taxes. Id. at 789. Because consumers could return the

company's bottles for a cash or credit refund (which, the company

argued, implicated a "for resale" exemption to the tax), the Gay court

concluded that "[t]he State would derive no revenue whatsoever from the

sale or use of all those containers which are returned to the seller of the

product contained therein and by him [the seller] discarded as unfit for

further use." Id. at 790. Accordingly, the sales were subject to the tax.

Id.

Recognizing that its interpretation might not have been "a strict

adherence to the letter of the definition" in the statute, the court

remarked that the "[l]egislature of this State at its 1951 session amended

the Revenue Act of 1949 to specifically provide that the [resale]

exemption . . . applied only to those [materials] which are intended to be

4 Although we find the substance of the rule stated as early as 1930

in the case of Amos v. Conkling, 126 So. 283, 288 (Fla. 1930) ("[I]t is

proper to consider, not only acts passed at the same session of the

Legislature, but also acts passed at prior or subsequent sessions, and

even those which have been repealed." (citing Old Homestead Bakery v.

Marsh, 242 P. 749 (Cal. Ct. App. 1925))), its underlying principle—

construing prior statutes by referencing subsequent amendments—

would not be applied in earnest until the 1950s.

11

used one time only." Id. From this development, the Gay court

appended a new approach to construing tax statutes in Florida:

We think, as did the California court in [Coca-Cola Co. v. State

Board of Equalization, 156 P.2d 1, 2 (Cal. 1945),] that "This

change may be considered in determining the scope of the tax

statute at the time of the transactions here involved for in

view of an amendment to the Retail Sales Tax Act at a time

when certain groups were resisting collection of taxes

assessed against them, the court could infer a legislative

intent to clarify rather than change the existing law."

Id.

The next sentences of the opinion, however, seemed to allow (or

perhaps even mandate) the application of this novel tool of construction

to any amendment to any kind of statute:

The rule seems to be well established the interpretation of a

statute by the legislative department goes far to remove doubt

as to the meaning of the law. The court has the right and the

duty, in arriving at the correct meaning of a prior statute, to

consider subsequent legislation.

Id. (emphasis added) (quoting Gen. Petroleum Corp. of Cal. v. Smith, 157

P.2d 356, 360 (Ariz. 1945)).

In the ensuing years, Florida courts would occasionally reference

Gay's holding that statutory amendments could clarify prior legislation,5

but the recent controversy rule as we now know it wouldn't come into full

bloom until 1985. That was when, for the first time, the Florida Supreme

Court began to construe legislative amendments enacted in response to

legal controversies as a tool for interpreting prior, preamendment

legislative meaning. Two cases, Lowry v. Parole & Probation Commission,

5 See, e.g., Ivey v. Chi. Ins. Co., 410 So. 2d 494, 497 (Fla. 1982);

Williams v. Hartford Acc. & Indem. Co., 382 So. 2d 1216, 1220 (Fla.

1980); Overstreet v. Pollak, 127 So. 2d 124, 124-25 (Fla. 3d DCA 1961).

12

473 So. 2d 1248 (Fla. 1985), and State v. Lanier, 464 So. 2d 1192 (Fla.

1985), laid the foundation for this expansion.

In Lowry, 473 So. 2d at 1248-49, a prisoner serving two

consecutive sentences had been granted parole before he began serving

his second sentence. Shortly before his parole release date, the Attorney

General issued Opinion 85-11, which, construing section 947.16, Florida

Statutes (1973), opined that a prisoner serving consecutive sentences

could not lawfully be eligible for parole if he hadn't begun serving the

latter sentence. Id. at 1249. Although Lowry had fulfilled his parole

obligations, the parole commission adopted the Attorney General's

opinion and withdrew his parole; he then filed a petition for a writ of

mandamus with the supreme court. Id.

Working through the competing arguments, the court in Lowry

observed:

Petitioner and respondents have all urged cogent arguments

supporting their disparate interpretations of the statutes in

question. Where reasonable differences arise as to the

meaning or application of a statute, the legislative intent

must be the polestar of judicial construction. Tampa-

Hillsborough County Expressway Authority v. K.E. Morris

Alignment Services, Inc., 444 So. 2d 926 (Fla. 1983); Tyson v.

Lanier, 156 So. 2d 833 (Fla. 1963). Petitioner and respondent

filed notices of pending legislation ordered enrolled, bringing

to the Court's attention Committee Substitute for House Bill

1298, ordered enrolled May 30, 1985 and submitted to the

Governor and signed into law June 11, 1985, effective upon

becoming law. This bill clarified the manner in which

presumptive parole release dates are to be calculated for

prisoners serving consecutive sentences. It specifically

provides that "The guidelines shall require the commission to

aggravate or aggregate each consecutive sentence in

establishing the presumptive parole release date." At oral

argument, counsel for respondent Wainwright conceded that

under the pending legislation, petitioner would be entitled to

release.

13

When, as occurred here, 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. United States ex rel. Guest v.

Perkins, 17 F. Supp. 177 (D.D.C. 1936); Hambel v. Lowry, 264

Mo. 168, 174 S.W. 405 (Mo. 1915). This Court has

recognized the propriety of considering subsequent legislation

in arriving at the proper interpretation of the prior statute.

Gay v. Canada Dry Bottling Co., 59 So. 2d 788 (Fla. 1952).

In examining Chapter 947 in light of section 775.021(4),

Florida Statutes (1983) and section 775.087(2), Florida

Statutes (1983), it is unmistakable that the amendments

contained in the pending bill are expressions of prior and

continuing legislative intent. Thus we hold that while AGO 85-

11 is a reasonable interpretation of the law, it does not

represent legislative intent.

Id. at 1249-50 (emphasis added).

Lanier offered a more succinct—and more robust—application of

this approach. In Lanier, 464 So. 2d at 1193, the court accepted

jurisdiction of a question of great public importance as to whether a

defendant could be convicted of a lewd, lascivious, or indecent act on a

twelve-year-old child where "the undisputed facts reveal that the twelve-

year-old was previously unchaste and the sexual intercourse was

consensual." The Third District had answered the question in the

negative. Id. The Florida Supreme Court disagreed and quashed the

appellate court's decision. Id.

The entire basis of Lanier's rationale was an amendment to the

pertinent criminal statute, section 800.04, Florida Statutes (1983), that

occurred shortly after the question had been certified. Id. That

amendment, "which was designed to specifically cover the acts

committed in the instant case," provided that neither lack of chastity nor

consent could be a defense to that particular crime. Id. The court

14

acknowledged that it had to apply the statute "as it existed at the time

the allegedly lewd and lascivious acts occurred, prior to the enactment of

the amendment." Id. And the court was not "bound by statements of

legislative intent uttered subsequent to either the enactment of a statute

or the actions which allegedly violate the statute." Id. Nevertheless, the

court would "show great deference to such statements, especially in a

case such as this, when the enactment of an amendment to a statute is

passed merely to clarify existing law." Id. That "great deference"

compelled the court to conclude that the legislature's subsequent

disavowal of these defenses indicated that the legislature never intended

for them to be defenses in the first place. Id.

Since Lanier and Lowry, statutory amendments have been

marshalled to ascertain the meaning of preamendment statutory text on

numerous occasions. See, e.g., Hardee County v. FINR II, Inc., 221 So. 3d

1162, 1167 (Fla. 2017); Metropolitan Dade County v. Chase Fed. Hous.

Corp., 737 So. 2d 494, 503 (Fla. 1999); Finely v. Scott, 707 So. 2d 1112,

1116-17 (Fla. 1998); Palma Del Mar Condo. Ass'n #5 of St. Petersburg, Inc.

v. Com. Laundries of W. Fla., Inc., 586 So. 2d 315, 317 (Fla. 1991); Hull,

349 So. 3d at 459; Madison at Soho II Condo. Ass'n v. Devo Acquisition

Enters., 198 So. 3d 1111, 1116 (Fla. 2d DCA 2016); Essex Ins. Co. v.

Integrated Drainage Sols., Inc., 124 So. 3d 947, 952 (Fla. 2d DCA 2013);

Archstone Palmetto Park, LLC v. Kennedy, 132 So. 3d 347, 352-53 (Fla.

4th DCA 2014); Sch. Dist. of Martin Cnty. v. Pub. Emps. Rels. Comm'n, 15

So. 3d 42, 45-46 (Fla. 4th DCA 2009); G.E.L. Corp. v. Dep't of Env't Prot.,

875 So. 2d 1257, 1262-63 (Fla. 5th DCA 2004); State Dep't of Bus. &

Prof. Reg., Div. of Pari-Mutuel Wagering v. WJA Realty Ltd. P'ship, 679 So.

2d 302, 306 (Fla. 3d DCA 1996); Kaplan v. Peterson, 674 So. 2d 201, 205

(Fla. 5th DCA 1996); State Dep't of Banking & Fin. v. Evans, 540 So. 2d

15

884, 887 (Fla. 1st DCA 1989); State Dep't of Lab. & Emp. Sec. v. Mission

Ins. Co., 507 So. 2d 137, 138 n.1 (Fla. 1st DCA 1987).

Though it is more frequently invoked in civil controversies, the

Florida Supreme Court has been clear that this tool for divining

legislative intent is available in criminal cases. As the court explained in

Leftwich v. Florida Department of Corrections, 148 So. 3d 79, 84 (Fla.

2014), "the United States Supreme Court has held that the federal ex

post facto clause generally does not apply to judicial precedent." (citing

Marks v. United States, 430 U.S. 188, 191 (1977)). Thus, while a

clarifying amendment cannot be used to construe an ambiguous criminal

statute in a way that would result in a longer prison sentence, an

amendment to a criminal statute may still be relevant to determine the

intent of the previous version of the statute. Id. at 83; see also Hull, 349

So. 3d at 465 ("[T]he 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. . . . 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."); Burgos v. State, 765 So. 2d 967, 968 (Fla. 4th DCA 2000)

(construing statutory amendment to clarify felon registration

requirements, which were "regulatory, not punitive" and thus, did not

violate the ex post facto prohibition); State v. Sedia, 614 So. 2d 533, 535

(Fla. 4th DCA 1993) (relying on a 1992 amendment, which stated "[t]he

legislature . . . never intended that the sexual battery offense described in

794.011(5) require any force or violence beyond the force and violence

that is inherent in the accomplishment of 'penetration' or 'union' " and

remarking "the legislature left no doubt as to its initial intention").

16

To be sure, there are times when courts have declined to consider

subsequent amendments when interpreting a prior version of a statute.

See, e.g., Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388, 398 (Fla. 2013);

Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216,

1230-31 (Fla. 2006); McKenzie Check Advance of Fla., LLC v. Betts, 928

So. 2d 1204, 1210 (Fla. 2006); Parole Comm'n v. Cooper, 701 So. 2d 543,

544-45 (Fla. 1997); State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d

55, 61-62 (Fla. 1995); Dean Wish, LLC v. Lee County, 326 So. 3d 840,

850-52 (Fla. 2d DCA 2021); Ramcharitar v. Derosins, 35 So. 3d 94, 98-99

(Fla. 3d DCA 2010); Betts v. McKenzie Check Advance of Fla., LLC, 879

So. 2d 667, 674 (Fla. 4th DCA 2004); Kleparek v. State, 634 So. 2d 1148,

1148 (Fla. 4th DCA 1994). But discerning an articulable and replicable

basis for that refrainment—whether because of the span of time between

an original enactment and its amendment or the length of years between

when a controversy arises and when an amendment is enacted in

response to the controversy or the degree of interpretive clarification

that's necessary to construe a prior statute—has remained an elusive,

and largely unsuccessful, endeavor in Florida case law. Compare Nunez,

117 So. 3d at 398 ("We therefore find that the 2012 amendment at issue

amounts to a substantive change, not just a legislative clarification, of

the PIP statute, especially considering the careful examination that

applies in this context and our responsibility to construe the provisions

of Florida's No-Fault Act liberally in favor of the insured."), and Dadeland

Depot, 945 So. 2d at 1230-31 (declining to apply rule, stating "[w]e are

also mindful that the Legislature's recent amendment to section 624.155

was passed twenty-three years after that statutory section's original

enactment, and some six years after the Southern District's opinion . . .

in which the district court indicated concern as to the correct

17

interpretation of the term 'insured' "), and Betts, 928 So. 2d at 1210

("[W]e conclude that seven years is too long to view the amendment as

merely a clarification of legislative intent."), and Cooper, 701 So. 2d at

544-45 ("[I]t is inappropriate to use an amendment enacted ten years

after the original enactment to clarify original legislative intent."), and

Laforet, 658 So. 2d at 62 ("It would be absurd, however, to consider

legislation enacted more than ten years after the original act as a

clarification of original intent . . . ."), and Ramcharitar, 35 So. 3d at 98

(declining to apply rule since "the 2003 revision to section 440.10

occurred twenty years after the Court decided Abernathy and some

twenty-nine years after the 1974 amendment to section 440.10"), with

FINR II, Inc., 221 So. 3d at 1165, 1167 (holding that the "plain language

of the [Bert Harris] Act provides that claims under the Act may not be

based on government action on another parcel," but noting that,

"[b]ecause reasonable minds may disagree with this interpretation" a

statutory amendment passed nearly two decades after the original act

"made clear that the Act does not apply to property owners whose parcel

is not 'the subject of and directly impacted by the action of a

governmental entity' " (quoting ch. 2015-142, § 1, Laws of Fla. (2015))),

and State v. Bodden, 877 So. 2d 680, 688 n.13 (Fla. 2004) (noting, in

dicta, that a 2003 amendment to section 316.1932, Florida Statutes

(2002), clarified meaning of a statute that was first enacted twenty-one

years earlier), and Lowry, 473 So. 2d at 1249, 1250 (considering 1985

amendments to parole statutes to construe a section that "has not

changed in any material way since 1974"), and Essex Ins., 124 So. 3d at

951-52 (observing, in dicta, that by enacting a 2009 amendment to an

insurance statute "quickly" after a Florida Supreme Court decision, the

legislature "clarified that it had intended since 1988 that chapter 627 did

18

not apply to surplus lines carriers"), and G.E.L., 875 So. 2d at 1262-63

(construing 2003 amendments to section 57.105, Florida Statutes

(2002), as clarifying the intent of section 120.595(1), which was enacted

in 1996), and Burgos, 765 So. 2d at 968-69 (applying rule to clarify

meaning of "conviction" for felon registration where amendment was

enacted two years after the applicable version of the statute and forty-

one years after the statute's original enactment).

If the recent controversy rule is indeed a tool of statutory

interpretation, it seems an inconsistent, and awfully slippery, one to

wield.

2.

Our court has certainly struggled to gain a firm grip on the rule in

the three most recent occasions we've addressed it. In Madison at Soho,

198 So. 3d at 1113-14, for example, a dispute over unpaid condominium

assessments revolved around the applicability of accord and satisfaction.

(The owner, who was in foreclosure, argued that the condominium

association's acceptance of its $2,412 check constituted an accord and

satisfaction of its unpaid $40,645.70 association debt.) Id. at 1113. Our

court had issued a decision in 2014, St. Croix Lane Trust v. St. Croix at

Pelican Marsh Condominium Ass'n, 144 So. 3d 639 (Fla. 2d DCA 2014),

holding that section 718.116(3), Florida Statutes (2014), never intended

to displace accord and satisfaction for condominium association

payments; but in 2015, the legislature amended that subsection to do

just that. Id. at 1115. Although the amendment was not in effect at the

time of the operative events, and despite the binding precedent of St.

Croix Lane Trust, we concluded in Madison at Soho that the association's

acceptance of the check could not operate as an accord and satisfaction

as a matter of law. Id. at 1113.

19

The Madison at Soho court began its analysis with an invocation to

Gay: "Florida courts have 'the right and the duty' to consider the

legislature's recently enacted statute clarifying its intent in a prior

version of a statute, which was passed soon after a controversy arose in

the interpretation of that original, pre-amended statute." Id. at 1116

(quoting Ivey v. Chi. Ins. Co., 410 So. 2d 494, 497 (Fla. 1982)). Neither

the presumption against retroactivity nor stare decisis stood in the way

of that "duty": we noted that "when the Florida Supreme Court has had

occasion to simultaneously consider retroactivity and the recent

controversy rule, it has treated the recent controversy rule as an inquiry

that is distinct from retroactive application," and we held that "with the

benefit of hindsight and the legislature's recent clarifying amendment,"

we were free to "revisit our St. Croix Lane Trust decision." Id. at 1116,

1118. Accord and satisfaction was never intended to be available in

these circumstances, as evidenced by the new amendment, for the

legislature "clearly intended for section 718.116(3) to function this way

all along." Id. at 1119. More than that, the amendment not only clarified

the prior legislation's intent—it "abrogated" our holding in St. Croix Lane

Trust altogether. Id.

But five years later we took a far more circumspect view of the

recent controversy rule in Dean Wish, LLC v. Lee County, 326 So. 3d 840

(Fla. 2d DCA 2021). A landowner had brought a Bert Harris Act claim

against Lee County following the county's rezoning (and decrease of

permissible development density) of the owner's land on Pine Island. Id.

at 842-43. Litigation dragged on for some time, so long that one of the

plaintiff owners retired and sold the property at auction; but it retained

its rights in the lawsuit against the county, which it wished to continue.

Id. at 844. The circuit court found this transfer fatal to the plaintiffs'

20

standing and granted summary judgment in favor of the county. Id. at

844-45. The court construed section 70.001(3)(f), Florida Statutes

(2018), of the Bert Harris Act (which defined "property owner" in the

present tense as "the person who holds legal title to the real property") to

require a plaintiff owner to be the current legal title holder of the affected

property. Id. at 845-46. On appeal, our court agreed. Id. at 849.

But shortly after we issued our first opinion, the legislature

approved amendments to the statute, including one that stated "[a]

property owner entitled to relief under this section retains such

entitlement to pursue the claim if the property owner filed a claim . . .

but subsequently relinquishes title to the subject real property before the

claim reaches a final resolution." Id. at 850 (alteration in original)

(quoting ch. 2021-203, § 1, Laws of Fla.). On a motion for clarification of

the prior opinion, the Dean Wish court issued a new opinion addressing

the effect of this amendment.6

A divided panel rejected the former landowner's argument that the

amendment served as legislative clarification of the prior law. Although

we acknowledged courts "may look to a statutory amendment," id. at 850

(emphasis added), if a statute's language is clear, the court was bound to

apply the original statute as it was written: "[W]e are not compelled to

apply the recent controversy rule to unambiguous statutes," id. at 851.

Since the Bert Harris Act's language defining "property owner" was clear,

"we need not look at the 2021 amendment to discern a prior legislative

6 The prior opinion, Dean Wish, LLC v. Lee County, 46 Fla. L.

Weekly D762 (Fla. 2d DCA Apr. 7, 2021), was withdrawn and superseded

on clarification by 326 So. 3d 840. The newly issued opinion

encompassed the Dean Wish court's initial conclusions as well as

addressing the amendment. See generally Dean Wish, LLC, 326 So. 3d

840.

21

intent." Id. at 850. Furthermore, the Dean Wish majority noted, the

pertinent provisions of the Act had remained unchanged for twenty-six

years, which "weigh[ed] against exercising our discretion to use the 2021

amendment to interpret the prior meaning of the Act's provision." Id. at

852.

In dissent, Judge Black maintained that the amendment "change[d]

the central issue of this case." Id. at 855. Although the definition of

property owner may have remained unchanged for decades, as he

pointed out, the " '[s]trict adherence' to the rule that the court is

reluctant to consider subsequent legislation when an amendment is

passed long after the original act was made law" is relaxed "when a

subsequent amendment is enacted soon after a controversy regarding a

statute's interpretation has arisen." Id. at 856-57 (alteration in original)

(quoting Dadeland Depot, 945 So. 2d at 1230). According to Judge

Black, "[t]he addition to section 70.001(2) clarifie[d] what ha[d] always

been the case: ownership at the time the property is burdened is critical

to entitlement to relief." Id. at 857.

If Madison at Soho embraced the "duty" to apply the recent

controversy rule, Dean Wish held it at a discretionary arm's length. Our

most recent decision in Hull sided with Madison at Soho, albeit with less

enthusiasm. As in Madison at Soho, the Hull majority acknowledged a

recent amendment had been enacted in response to the "controversy" of

one of our prior decisions.7 Hull, 349 So. 3d at 461. Because the

legislature had "clarified" section 943.0435(1)(h) by changing "the

sanction" to "a sanction" and then specifically exempting fines from the

7 It had little choice.

The legislature tied a rather sizeable bow

around the point, stating "the opinion in State v. James, 298 So. 3d 90

(Fla. 2d DCA 2020), is contrary to legislative intent." Hull, 349 So. 3d at

463 (quoting ch. 2021-56, § 1, Laws of Fla. (2021)).

22

definition of the word, the majority felt compelled to reexamine our

holding in James. This was necessary, Hull reasoned, "[g]iven our

fundamental mandate to construe statutes so as to 'give effect to

legislative intent.' " Id. at 463. "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." Id. at 465. The majority so

held despite its view that James had correctly construed the prior statute

and despite its misgivings about the recent controversy rule in general.

Id. at 464 n.6.

Judge Atkinson's dissent in Hull catalogued still more misgivings

with the rule. First, he argued that the statutory text at issue was clear

and unambiguous and that James had properly applied the text's "plain

and ordinary meaning." Id. at 466. Irrespective of any latter legislative

clarification, the Hull panel was bound to follow James because James

was a prior, binding decision of the court. Id. Furthermore, to the extent

the rule "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" because it violates the supremacy-of-

text principle of statutory interpretation. Id. at 467. In that same vein,

he observed that the recent controversy rule "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." Id. at

468. Finally, Judge Atkinson questioned how the Hull majority could

apply "an amended version of a criminal statute to an alleged violation

that took place prior to the effective date" of the legislation. Id. at 473.

23

So in the span of eight years, we have three published decisions

from our court that have yielded two split panels, two panels effectively

decreeing a prior panel's decision dead letter law, one panel construing

the recent controversy rule as discretionary, and another two as quasi-

mandatory. Madison at Soho, Dean Wish, and Hull's respective

applications of the recent controversy rule simply cannot be reconciled.

Either the rule is mandatory or it's discretionary; either its operation

hinges on subsequent legislation's enactment or on prior legislation's

ambiguity; either it truly acts as a tool for clarifying legislative intent or it

is, truly, "retroactivity by another name." Hull, 349 So. 3d at 466.

The need for us to proceed en banc has become self-evident.

B.

If the case law discussed above were all there were, we would

simply do our best as an en banc court to try to discern a coherent

thread in these disparate decisional strands and weave our district's

conflicting case law into something a little more cogent. But there's one

thing more we must consider—quite a big thing, actually.

Between 2020 and 2022 (the same period of time, coincidentally,

that James and Hull were being decided), the Florida Supreme Court

fundamentally changed the framework through which Florida courts

interpret statutes. Mr. Crose has put that change front and center in his

arguments for affirmance in this appeal.

1.

Traditionally, Florida courts focused their interpretive work on

discerning the "legislative intent" of statutory text. What did the

legislature mean when it enacted a particular piece of legislation? One of

the most frequently cited pronouncements of this approach was set forth

in Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984):

24

Florida case law contains a plethora of rules and

extrinsic aids to guide courts in their efforts to discern

legislative intent from ambiguously worded statutes.

However,

[w]hen the language of the statute is clear and

unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the

rules of statutory interpretation and construction;

the statute must be given its plain and obvious

meaning.

A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So.

157, 159 (1931). See also Carson v. Miller, 370 So. 2d 10 (Fla.

1979); Ross v. Gore, 48 So. 2d 412 (Fla. 1950). It has also

been accurately stated that courts of this state are

without power to construe an unambiguous

statute in a way which would extend, modify, or

limit, its express terms or its reasonable and

obvious implications. To do so would be an

abrogation of legislative power.

American Bankers Life Assurance Company of Florida v.

Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968) (emphasis

added). It is also true that a literal interpretation of the

language of a statute need not be given when to do so would

lead to an unreasonable or ridiculous conclusion. Johnson v.

Presbyterian Homes of Synod of Florida, Inc., 239 So. 2d 256

(Fla. 1970). Such a departure from the letter of the statute,

however, "is sanctioned by the courts only when there are

cogent reasons for believing that the letter [of the law] does

not accurately disclose the [legislative] intent." State ex rel.

Hanbury v. Tunnicliffe, 98 Fla. 731, 735, 124 So. 279, 281

(1929).

(Alterations in original.)

The "extrinsic aids" available to discern legislative intent were many

and varied, as were the exceptions to construing unambiguous statutes

according to their text—which came to be perceived as a problem with

this approach. Cf. Schoeff v. R.J. Reynolds Tobacco Co., 232 So. 3d 294,

313-14 (Fla. 2017) (Lawson, J., concurring in part and dissenting in part)

25

("Florida's appellate courts have for decades routinely framed the

statutory construction task in general (for all cases) as starting with the

'legislative intent as polestar' maxim. . . . [B]y focusing first on the more

amorphous concept of intent, we are more likely to read into the

language our own subjective experiences and biases—assuming

unintentionally and subconsciously that the Legislature would have

intended the meaning that intuitively strikes us as correct.").

2.

In 2020, the Florida Supreme Court began to reformulate the

paradigm of statutory interpretation. In Ham v. Portfolio Recovery

Associates, LLC, 308 So. 3d 942, 946-47 (Fla. 2020), the court was called

upon to resolve a conflict between the districts as to whether the

reciprocal fee provision of section 57.105(7), Florida Statutes (2015),

applied to an account stated cause of action on a credit card debt.

Notably, at the outset of its statutory analysis, the Ham court omitted

any mention of Holly or legislative intent; instead, the court framed the

labor of statutory interpretation in much more definitive terms:

In interpreting the statute, we follow the "supremacy-of-

text principle"—namely, the principle that "[t]he words of a

governing text are of paramount concern, and what they

convey, in their context, is what the text means." Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 56 (2012). We also adhere to Justice Joseph

Story's view that "every word employed in [a legal text] is to be

expounded in its plain, obvious, and common sense, unless

the context furnishes some ground to control, qualify, or

enlarge it." Advisory Op. to Governor re Implementation of

Amendment 4, the Voting Restoration Amendment, 288 So. 3d

1070, 1078 (Fla. 2020) (quoting Joseph Story, Commentaries

on the Constitution of the United States 157-58 (1833), quoted

in Scalia & Garner, Reading Law at 69).

26

We thus recognize that the goal of interpretation is to

arrive at a "fair reading" of the text by "determining the

application of [the] text to given facts on the basis of how a

reasonable reader, fully competent in the language, would

have understood the text at the time it was issued." Scalia &

Garner, Reading Law at 33. This requires a methodical and

consistent approach involving "faithful reliance upon the

natural or reasonable meanings of language" and "choosing

always a meaning that the text will sensibly bear by the fair

use of language." Frederick J. de Sloovère, Textual

Interpretation of Statutes, 11 N.Y.U. L.Q. Rev. 538, 541 (1934),

quoted in Scalia & Garner, Reading Law at 34.

Id. at 946-47 (alterations in original); see also Levy v. Levy, 326 So. 3d

678, 681 (Fla. 2021) (defining and applying supremacy-of-text method of

statutory interpretation).

Two years after Ham, the court both reemphasized the supremacy-

of-text principle and unequivocally abandoned the legislative intent

approach emblemized in Holly. Addressing a certified question from the

United States Court of Appeals for the Eleventh Circuit, the court in

Conage v. United States, 346 So. 3d 594, 598 (Fla. 2022), held:

We believe that the Holly principle is misleading and

outdated. More recently our Court has said that judges must

"exhaust 'all the textual and structural clues' " that bear on

the meaning of a disputed text. 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)). That is because "[t]he plainness or ambiguity of

statutory language is determined by reference to the language

itself, the specific context in which that language is used, and

the broader context of the statute as a whole." Robinson v.

Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L.Ed.2d

808 (1997).

Viewed properly as rules of thumb or guides to

interpretation, rather than as inflexible rules, the traditional

canons of statutory interpretation can aid the interpretive

process from beginning to end (recognizing that some canons,

like the rule of lenity, by their own terms come into play only

27

after other interpretive tools have been exhausted). It would

be a mistake to think that our law of statutory interpretation

requires interpreters to make a threshold determination of

whether a term has a "plain" or "clear" meaning in isolation,

without considering the statutory context and without the aid

of whatever canons might shed light on the interpretive issues

in dispute.

(Alteration in original.)

Since then, the supreme court's marching orders for interpreting

legislation have been clear: to derive the meaning of statutes, we are to

look to the text itself, as understood in its context, not to any purported

intent underlying the text. See, e.g., Tsuji v. Fleet, 366 So. 3d 1020,

1025 (Fla. 2023) ("When we construe statutes, 'our first (and often only)

step . . . is to ask what the Legislature actually said in the statute, based

upon the common meaning of the words used' when the statute was

enacted." (quoting Shepard v. State, 259 So. 3d 701, 705 (Fla. 2018)));

Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d 353, 354 (Fla. 2023) ("In

deciding whether this statute is a prevailing-party statute, we apply the

supremacy-of-the-text 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.' " (quoting Levy, 326 So. 3d at 681));

Lab. Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022) ("In

interpreting a statute, our task is to give effect to the words that the

legislature has employed in the statutory text. 'The words of a governing

text are of paramount concern, and what they convey, in their context, is

what the text means.' " (quoting Ham, 308 So. 3d at 946)).

It is not hyperbole to observe that Conage's displacement of Holly

and the supreme court's recent embrace of the supremacy-of-text

principle constituted a paradigm shift in Florida law. In the next section,

we carry this evolution in the law forward to consider the case at bar and

28

confront the question of whether the recent controversy rule as a method

for discerning legislative intent retains any operative space in the

supremacy-of-text model of statutory interpretation.

IV.

Mr. Crose posits that the recent controversy rule and the supremacy-

of-text principle are "completely incompatible." He's correct. We explain

why in this section.

A.

The recent controversy rule is, root and branch, an offshoot of the

legislative intent approach to ascertaining statutory meaning. Its

pronouncements in the law claim as much. Accord Leftwich, 148 So. 3d

at 83 ("[A] statutory amendment may be relevant to a determination of

the intent behind the previous statute." (emphasis added) (citing Lowry,

473 So. 2d at 1250)); Lowry, 473 So. 2d at 1250 ("[T]he amendments

contained in the pending bill are expressions of prior and continuing

legislative intent." (emphasis added)); Madison at Soho, 198 So. 3d at

1116-17 ("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." (emphasis

added)). As one commentator remarked, applying clarifying amendments

to derive the meaning of prior statutes should "be seen as 'the two

branches work[ing] in partnership to accomplish the legislative agenda.' "

See Pat McDonnel, The Doctrine of Clarifications, 119 Mich. L. Rev. 797,

815 (2021) (alteration in original) (quoting Linda D. Jellum, "Which Is to

Be Master," the Judiciary or the Legislature? When Statutory Directives

Violate Separation of Powers, 56 UCLA L. Rev. 837, 882 (2009)). The

recent controversy rule can only function if one accepts the notion that

legislative meaning (or, if you like, a "legislative agenda") holds some

29

separate telos distinct from the text the legislature had enacted—and

that it is the court's job to discover what that telos is.

The State, however, will neither bury nor praise the recent

controversy rule. In its supplemental briefing it acknowledges that

courts have at times wielded the rule too forcefully. Nevertheless,

according to the State, a legislative amendment enacted shortly after a

controversy arises may still be "probative (though not dispositive) of what

the text meant all along," not unlike "an amicus brief written on behalf of

the House and Senate" in a pending case. As the State sees it, "this one-

factor-among-many approach to the recent controversy rule is a proper

'tool' in the textualist's toolkit."

How can that be? You can use a hammer for all sorts of things,

but it's meant for hammering. When the job at hand no longer calls for

hammering, you shouldn't reach for that tool. A court using an atextual,

intent-centric tool in a supremacy-of-text analysis would be like a

homeowner trying to hammer a lightbulb into a socket to gain more

illumination.

The courts fashioned this common law tool for one purpose: to

break through statutory text and discover the hidden legislative intent

beneath a statute's words.8 The recent controversy rule doesn't shed

light on statutory context. It isn't a rule of grammar. And it's not a

surrogate for a dictionary. While we recognize that the Florida Supreme

Court "does not intentionally overrule itself sub silentio," F.B. v. State,

852 So. 2d 226, 228 (Fla. 2003) (quoting Puryear v. State, 810 So. 2d

901, 905 (Fla. 2002)), when the court fundamentally changes a first-

order, long-standing paradigm of widespread application, some of its

8 Indeed, the recent controversy rule could be the exemplar par

excellence of an intent-centric tool of construction.

30

prior case law may fall by the wayside. We believe that is what has

happened to the recent controversy rule.

Guided by the Florida Supreme Court's pronouncements in Ham

and Conage, we hold that consulting subsequent legislative amendments

in response to recent controversies is no longer a viable basis for

construing the meaning of a statute.9 We recede from Hull and Madison

at Soho to the extent they held to the contrary.

B.

Having so held, we can turn to the merits of Mr. Crose's case. As

we observed at the outset, Mr. Crose's circumstances, as well as his

argument about the proper interpretation of the preamendment version

of section 943.0435, are virtually indistinguishable from the defendant's

in James. Since our entire basis for declaring James "abrogated" in Hull

was the recent controversy rule—which we've now determined is

inconsistent with a supremacy-of-text approach to statutory

interpretation—we are free to construe Mr. Crose's arguments in

accordance with James' holding. The only question we need now address

is whether James was a felicitous application of the supremacy-of-text

principle to section 943.0435.

1.

We think it was. Again, the prior, applicable version of the statute

tethered sex offender registration to completion of "the sanction imposed"

and then went on to state that "a sanction . . . includes, but is not

limited to, a fine, probation, community control, parole, conditional

9 We would note that the supreme court itself has questioned the

continued viability of the recent controversy rule. See Dadeland Depot,

945 So. 2d at 1230 ("However, this tool of statutory construction was

called into question somewhat by our opinion in Knowles v. Beverley-

Enterprises-Florida, Inc., 898 So. 2d 1 (Fla. 2004).").

31

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., Fla. Stat. (2017).

The use of the definite article "the," in this context, clearly and

unambiguously indicated a holistic, collective meaning for "sanction."

Release from "the sanction imposed" meant just that: release from "the

sanction" the State had imposed, not just a particular piece of that

sanction. See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) ("Here

grammar and usage establish that 'the' is 'a function word . . .

indicat[ing] that a following noun or noun equivalent is definite or has

been previously specified by context.' " (alterations in original) (quoting

Merriam-Webster's Collegiate Dictionary 1294 (11th ed. 2005))); Covey v.

Shaffer, 277 So. 3d 694, 696-97 (Fla. 2d DCA 2019) ("The indefinite

article a has an accepted sense of 'any,' while the definite article, the,

used before a noun specifies a definite and specific noun, as opposed to

any member of a class." (quoting Myers v. State, 696 So. 2d 893, 900

(Fla. 4th DCA 1997))). That construction is not only evinced by the

commonly understood meaning of "the" when applied to a term with

multiple aspects; it is confirmed textually by the remainder of the

statute, which switches to the indefinite article "a" to list the various

constituent components a "sanction" may comprise. See Famiglio v.

Famiglio, 279 So. 3d 736, 741 (Fla. 2d DCA 2019) ("The purpose of the

indefinite article is to indicate a noun that is, in some way, variable,

unidentified, or unspecified." (citing Retreat at Port of Islands, LLC v. Port

of Islands Resort Hotel Condo. Ass'n, 181 So. 3d 531, 533 (Fla. 2d DCA

2015))).

Moreover, James' interpretation avoided the ambiguity an

alternative construction would have foisted: if registration is required

32

following release from any part of "the sanction," which of the several and

distinct sanctions specifically defined in the statute becomes "the

sanction" for purposes of the registration requirement? Cf. State v.

Hobbs, 974 So. 2d 1119, 1121 (Fla. 5th DCA 2008) (noting that statutory

construction canons "should only come into play when it is necessary to

construe an ambiguous statute, not to create an ambiguity in a clearly

worded statute" (citing Jacobo v. Bd. of Trs. of Miami Police, 788 So. 2d

362, 363 (Fla. 3d DCA 2001))). Finally, as James observed, the

legislature had, elsewhere, enacted an automatic designation provision in

the Sexual Predator Act, but not in section 943.0435. See James, 298

So. 3d at 93. "[W]hen the legislature has included a provision in one

statute, but omitted it in an analogous statute, courts should not read it

into the statute from which it has been excluded." Id. (citing Mesen v.

State, 271 So. 3d 164, 169 (Fla. 2d DCA 2019)).

Is James' construction consistent with what a subsequent

legislature declared its predecessor had originally intended? Apparently

not. It is, however, entirely consistent with the actual words that prior

legislature enacted.10 Like the Florida Supreme Court, in this case "we

need only resort to what Justice Thomas has described as the 'one,

cardinal canon [of construction] before all others'—that is, we 'presume

that a legislature says in a statute what it means and means in a statute

what it says there.' " Page v. Deutsche Bank Tr. Co. Ams., 308 So. 3d

953, 958 (Fla. 2020) (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249,

253-54 (1992)). The prior legislature had tied sex offender registration to

a defendant's release from "the sanction imposed," not "a sanction" or

10 The State concedes that this is not one of those exceptionally

rare circumstances where the absurdity doctrine compels a particular

construction of the statute.

33

"any sanction." Because that is what the words of the statute conveyed,

that is what the text of the statute meant. See Ham, 308 So. 3d at 946;

Allstate Mortg. Corp. of Fla. v. Strasser, 286 So. 2d 201, 202-03 (Fla.

1973) (observing that the legislature "is presumed to know the meanings

of words and rules of grammar" (citing State ex rel. Hanbury v.

Tunnicliffe, 124 So. 279 (Fla. 1929))).

2.

In its supplemental briefing, the State argues that when section

943.0435(1)(h) is read within a broader context of the purpose of sex

offender statutes and alongside other statutory registration

requirements, the operative term "sexual offender" takes on a different,

broader meaning than what the text of section 943.0435(1)(h) actually

states. "[T]ext and context establish that 'the sanction' . . . is a generic

phrase that refers to any sanction from which the offenders has been

released," according to the State. (Emphasis added.) We disagree for the

following five reasons.

First and foremost, as we've already explained, "the" does not

usually mean the same thing as "any" or "a." Definite articles and

indefinite articles typically connote different meanings, and they serve

very different communicative functions. See, e.g., Paul W. Lovinger, The

Penguin Dictionary of American English Usage and Style 1, 426 (2000) ("A

or an goes before a word or phrase denoting a person or thing (noun) but

not a specific one. . . . The definite article, the, . . . usually introduces a

particular thing or individual group, one that was mentioned before or

whose existence is known or presumed to be known."). While context is

always important and can often provide clarification, it's not a talisman

that can be invoked to transform the ordinary functions of articles in

English grammar.

34

Second, it must be observed that section 943.0435(1)(h)1 is a

definitional statute. It so indicates right at the beginning of the

subsection: " 'Sexual offender' means . . . ." For purposes of the crime of

"sexual offenders" failing to register, we would expect to find the

boundaries of the defined term "sexual offender" within the boundaries of

the section that defines that term. See generally Fla. Ins. Guar. Ass'n v.

Bernard, 140 So. 3d 1023, 1030 (Fla. 1st DCA 2014) ("[T]he definition of

a term in the definitional section of a statute controls the construction of

that term wherever it appears in the statute." (quoting Durish v.

Channelview Bank, 809 S.W.2d 273, 276 (Tex. Ct. App. 1991))); Fla. Dep't

of Banking & Fin. v. Bd. of Governors of Fed. Res. Sys., 800 F.2d 1534,

1536 (11th Cir. 1986) ("It is an elementary precept of statutory

construction that the definition of a term in the definitional section of a

statute controls the construction of that term wherever it appears

throughout the statute."). We should be exceedingly wary about straying

beyond a statute's definitional section, notwithstanding the State's

invitation to look elsewhere. Cf. Scalia & Garner, Reading Law at 228 ("It

is very rare that a defined meaning can be replaced with another

permissible meaning of the word on the basis of other textual

indications; the definition is virtually conclusive."); Singer, Statutes and

Statutory Construction 132 (7th ed. 2009) ("When a legislature defines the

language it uses, its definition is binding upon the court even though the

definition does not coincide with the ordinary meaning of the words.").

Third, it seems to us what the State would call legislative "context"

ends up looking a great deal like "legislative intent." For example, we are

told context requires us to consider various studies on recidivism, federal

subsidy reporting requirements, and the filings of law enforcement

agencies in response to James. These, according to the State, reveal "the

35

purposes of the law," which happen to align with the State's construction

of section 943.0435(1)(h)1. But garlanding unwritten "purposes" over

written statutory text is just another way of saying, "what the legislature

really meant was . . . ."—and that kind of subtextual approach (in the

truest sense of the word) is anathema to the supremacy-of-text rule.

Accord Tsuji, 366 So. 3d at 1025; Conage, 346 So. 3d at 598; Coates, 365

So. 3d at 354; Davis, 339 So. 3d at 323.

Fourth, even if section 943.0435(1)(h)1 were read in a way that "the

sanction imposed" wasn't a defined term (though it clearly is), the State's

argument would have us ignore the plain and ordinary meaning of this

term. See Tsuji, 366 So. 3d at 1028 ("Absent a legislatively supplied

definition, we give the word 'liable' its 'plain and ordinary meaning' at the

time of the statute's enactment, and we often look to contemporaneous

dictionaries for evidence of that meaning." (citing Sch. Bd. of Palm Beach

Cnty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1233 (Fla. 2009)));

Westpark Preserve Homeowners Ass'n v. Pulte Home Corp., 365 So. 3d

391, 395 (Fla. 2d DCA 2023) ("When the legislature has not defined a

term in the statute, courts may 'look to the dictionary in order to

ascertain the plain and ordinary meaning of the term.' " (quoting Debaun

v. State, 213 So. 3d 747, 751 (Fla. 2017))). In 1997, when this statute

was enacted, Black's defined "the" as an article that "particularizes the

subject which it precedes and is word of limitation as opposed to

indefinite or generalizing force 'a' or 'an' ", "sanction" was defined broadly

to mean "[p]enalty or other mechanism of enforcement used to provide

incentives for obedience with the law", and "impose" meant "to levy or

exact as by authority." See The, Black's Law Dictionary (6th ed. 1994).

Thus, by the lights of the foremost legal dictionary's definitions, "the

sanction imposed" means, as we said in James: the (not any)

36

particularized (not indeterminate from among a nonexhaustive list)

penalty (not just incarceration) exacted by the authority of a criminal

court.11

We can check this plain and ordinary definition against what the

proverbial man or woman "on the street" would say. If he or she were

told that a criminal defendant had been sentenced to prison, probation,

and the payment of a fine and that proverbial person were then asked to

describe what was "the sanction imposed" on that defendant, they would

respond that the defendant had been imprisoned, was required to serve

probation, and had to pay a fine. If that person were then told, no,

actually "the sanction" was only the incarceration, they would probably

wonder whether they'd been asked a trick question. Cf. Pell v. State, 122

So. 110, 113 (Fla. 1929) (construing criminal statute and observing that

"[w]hen we come down to the sensible use of plain everyday language,

such as the man on the street (who often becomes the man on the jury)

11 The State's suggestion that the second sentence of section

943.0435(1)(h)1.a.(II)—"For purposes of sub-sub-subparagraph (I), a

sanction imposed in this state or in any other jurisdiction includes, but

is not limited to, a fine, probation, community control," etc.—"can

effectively be superimposed into the first sentence without changing the

first's meaning" amounts to a rather unsubtle linguistic sleight-of-hand,

one that would not clarify, but radically transform the text we're trying to

construe.

Besides which, when it says "[f]or purposes of sub-sub-

subparagraph (I)," the second sentence is specifically pointing to a

different sub-sub-subparagraph altogether, not the preceding sentence,

and its nonexhaustive list of disjunctive potential penalties would be the

antitheses of the particularizing use of the preceding sentence's definite

article and meaning. The second sentence of (1)(h)1.a.(II) simply

illustrates the kind of potential "sanctions" that could qualify for sexual

offender registration; it leaves the work of who must register and when to

the preceding sentence. That is how these two sentences are properly

construed together.

37

uses and understands, and such as is used in our statute defining the

different degrees of homicide . . . we lose nothing of substance, pith, or

dignity, while we gain much in directness, lucidity, and simplicity of

statement"); United States v. Pate, No. 20-10545, 2023 WL 6618405, * 3

(11th Cir. Oct. 11, 2023) ("[W]e 'ask how a reasonable person, conversant

with the relevant social and linguistic conventions, would read the text in

context.' " (quoting John F. Manning, The Absurdity Doctrine, 116 Harv.

L. Rev. 2387, 2392-93 (2003))).

Fifth and finally, if we were inclined to accept the State's

construction of "the sanction imposed," it would, at most, amount to a

valid, competing interpretation of the statute's text. We would then find

ourselves with a "[r]un-of-the-mill ambiguity regarding particular

applications of a criminal statute," Martin v. State, 259 So. 3d 733, 741

(Fla. 2018)—between the State's approach and James'—and the rule of

lenity would compel us to follow James as the more lenient application.

See § 775.021(1), Fla. Stat. (2019) ("The provisions of this code and

offenses defined by other statutes shall be strictly construed; when the

language is susceptible of differing constructions, it shall be construed

most favorably to the accused."); Cleveland v. United States, 531 U.S. 12,

25 (2000) ("[W]e have instructed that 'ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity.' " (quoting Rewis v.

United States, 401 U.S. 808, 812 (1971))); J.J. v. State, 181 So. 3d 522,

525 (Fla. 2d DCA 2015) ("It is a fundamental principle of Florida

jurisprudence that penal statutes must be strictly construed.").

3.

Mr. Crose, who was still completing the probation portion of his

criminal sanction, wasn't required to register as a sex offender at the

time of his alleged offense under the operative, preamendment version of

38

section 943.0435. We, therefore, affirm the order of the circuit court

dismissing this charge against him.

V.

As we acknowledged earlier, our holding today presupposes that

the supremacy-of-text principle has supplanted the recent controversy

rule. But if we're mistaken, if the recent controversy rule somehow

retains some utility for construing the meaning of statutory text, we

would still need to contend with several concerns this case raises. We

will canvass those concerns in the following subsections and explain why

these problems likewise preclude us from applying the amended statute's

purported clarification to the case at bar.

A.

This is a criminal case. Both the federal and state constitutions

generally forbid the ex post facto application of criminal laws. See art. I,

§ 9, cl. 3, U.S. Const. ("No Bill of Attainder or 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 bill of attainder, ex

post facto law or law impairing the obligation of contracts shall be

passed."); see also Collins v. Youngblood, 497 U.S. 37, 43 (1990)

("Legislatures may not retroactively alter the definition of crimes or

increase the punishment for criminal acts."); Lescher v. Fla. Dep't of

Highway Safety & Motor Vehicles, 985 So. 2d 1078, 1081 (Fla. 2008)

("Both the United States and Florida Constitutions prohibit ex post facto

laws."); Rodriguez v. State, 380 So. 2d 1123, 1123-24 (Fla. 2d DCA 1980)

("An ex post facto law, which is prohibited by [a]rticle I, [s]ection 10,

Florida Constitution, is defined as '[o]ne which, in its operation, makes

that criminal which was not so at the time the action was performed, of

which increases the punishment, or, in short, which in relation to the

39

offense or its consequences alters the situation of a party to his

disadvantage.' " (alteration in original) (quoting Higginbotham v. State,

101 So. 233, 235 (Fla. 1924))).12

12 As Mr. Crose points out, there is a technical distinction in the

constitutional analysis of retroactive legislation versus retroactive judicial

decision-making. The former falls under the ex post facto clause, while

the latter is governed by the due process provision of the Fifth

Amendment, as applied to the States through the Fourteenth

Amendment. As the Supreme Court explained:

The Ex Post Facto Clause is a limitation upon the

powers of the Legislature, see Calder v. Bull, 3 Dall. 386, 1

L.Ed. 648 (1798), and does not of its own force apply to the

Judicial branch of government. Frank v. Mangum, 237 U.S.

309, 344, 35 S.Ct. 582, 593, 59 L.Ed. 969 (1915). But the

principle on which the Clause is based the notion that

persons have a right to fair warning of that conduct which

will give rise to criminal penalties is fundamental to our

concept of constitutional liberty. See United States v. Harriss,

347 U.S. 612, 617, 74 S. Ct. 808, 811, 98 L. Ed. 989 (1954);

Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S. Ct. 618,

619, 83 L.Ed. 888 (1939). As such, that right is protected

against judicial action by the Due Process Clause of the Fifth

Amendment.

See Marks, 430 U.S. at 191-92.

Florida's recent controversy rule, however, is arguably a creature of

both the legislature and the judiciary's making. After all, absent the

impetus of a legislative amendment enacted in response to a controversy,

a court can't invoke this tool of statutory construction; and the case at

bar (in which the amendment at issue explicitly referenced our James

decision, which the Hull panel then cited) exemplifies just how enmeshed

the two branches can become when the rule is invoked.

Which constitutional provision the recent controversy rule

implicates might pose an interesting question, but we need not linger too

long on it. In the end, the two analyses—whether a legislature's

enactment of a retrospective law violates the ex post facto clause or

whether a court's retrospective application of legislation violates the due

process clause—both revolve around the same center of gravity: a lack of

fair notice. See Lynce, 519 U.S. at 441 ("We have explained that such

[retroactive] laws implicate the central concerns of the Ex Post Facto

40

It is true, as we discussed in section III(A), that Florida courts have

applied the recent controversy rule to construe criminal statutes

notwithstanding ex post facto objections. See, e.g., Leftwich, 148 So. 3d

at 84; Hull, 349 So. 3d at 464; Burgos, 765 So. 2d at 968. More often

than not, the constitutional concern was assuaged by the assurance that

all the court was doing was clarifying a criminal statute's intended

meaning, not enlarging its operative scope.

Now one could argue (and some have) that that justification is

nothing more than a fig leaf covering a retroactive application of a

criminal statute. See, e.g., Leftwich, 148 So. 3d at 89 (Quince, J.,

dissenting) (maintaining that the statutory amendment at issue was

"more than a mere clarification of the legislature's original intent," that

"[t]his language supports the conclusion that the amendment expanded

the exception to all habitual offenders," and that "[t]his expansion of the

exceptions contained in the original statute results in the 1992

amendment being applied retroactively to Leftwich"); Hull, 349 So. 3d at

466 (Atkinson, J., dissenting) ("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

Clause: 'the lack of fair notice and governmental restraint when the

legislature increases punishment beyond what was prescribed when the

crime was consummated.' " (quoting Weaver v. Graham, 450 U.S. 24, 30

(1981))); Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) ("[A]n

unforeseeable judicial enlargement of a criminal statute, applied

retroactively, operates precisely like an ex post facto law, such as Art. I, s

10, of the Constitution forbids. . . . If a state legislature is barred by the

Ex Post Facto Clause from passing such a law, it must follow that a State

Supreme Court is barred by the Due Process Clause from achieving

precisely the same result by judicial construction." (emphasis added)).

For convenient shorthand, we will refer to ex post facto application in

this section in its broader sense to encompass the more general fair

notice implications of due process.

41

effect at the time of its alleged violation, the rule is merely retroactivity by

another name."). Regardless of how substantive the cover of

"clarification" ever was, in the advent of Ham and Conage, a post hoc,

extratextual source such as a subsequent amendment to a criminal

statute, can no longer be a viable tool to derive textual meaning. Not

when we are supposed to "strive to determine the text's objective

meaning through 'the application of [the] text to given facts on the basis

of how a reasonable reader, fully competent in the language, would have

understood the text at the time it was issued.' " Levy, 326 So. 3d at 681

(alteration in original) (emphasis added) (quoting Antonin Scalia & Bryan

A. Garner, Reading Law at 33); see also Niz-Chavez v. Garland, 141

S. Ct. 1474, 1480 (2021) ("When called on to resolve a dispute over a

statute's meaning, this Court normally seeks to afford the law's terms

their ordinary meaning at the time Congress adopted them." (citing Wis.

Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018))); Kleparek, 634 So. 2d

at 1148 ("[I]t has been wisely observed by a judge that a legislature—not

identical in body as a previous one—might be logically hard pressed to

say what the earlier legislature intended."). If the only way the recent

controversy rule withstands ex post facto scrutiny in a criminal case is

by acting as a means of clarifying intent and if that function has

effectively been withdrawn—as we believe it has—then construing the

text of a statute according to the words of the statute's future

amendments winds up being "retroactivity by another name." See Hull,

349 So. 3d at 466 (Atkinson, J., dissenting).

Mr. Crose's case illustrates this point. Under the prior text of

section 943.0435, he was not required to register as a sex offender—and,

correspondingly, could not be guilty of the third-degree felony of failing to

do so—until he was released from "the sanction imposed" in his prior

42

sentence, a sanction that included probation. He could, however, be

guilty of this charge if the text of the statute had required his registration

following the release of the incarcerative portion of his criminal sanction,

which is precisely what the amendments to section 943.0435 effectuated.

To construe the preamendment statute in the manner the State suggests

(that is, to align the preamended version's operation with the

postamended version's text) violates the cardinal prohibition of ex post

facto criminal laws: it criminalizes what had been noncriminal conduct

after-the-fact. See Carmell v. Texas, 529 U.S. 513, 524-25 (2000).

B.

If a subsequent legislature's enactments can somehow inform a

supremacy-of-text's construction of a prior legislature's laws, we would

also have to contend with a lurking separation of powers issue. And here

as well, the case at bar brings that dilemma into its fullest light.

Article II, section 3 of the Florida Constitution provides: "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 expressly

provided herein." "[T]he Florida Constitution imposes a 'strict' separation

of powers requirement that applies just as vigorously to the judicial

branch as it does to the other two branches of government." Citizens for

Strong Schs., Inc. v. Fla. State Bd. of Educ., 232 So. 3d 1163, 1170 (Fla.

1st DCA 2017) (quoting State v. Cotton, 769 So. 2d 345, 352 (Fla. 2000)).

While there are occasions when the dividing lines between the branches'

powers may seem blurred, basic judicial interpretation of the law is not

one of them.

"It is emphatically the province and the duty of the judicial

department to say what the law is." Marbury v. Madison, 5 U.S. 137, 177

43

(1803). There can be no question but that the interpretation of legislative

acts in disputed cases lies at the very core of the judiciary's duty. See,

e.g., Bush v. Schiavo, 885 So. 2d 321, 330 (Fla. 2004) ("Under the

express separation of powers provision in our state constitution, 'the

judiciary is a coequal branch of the Florida government vested with the

sole authority to exercise the judicial power' . . . ." (quoting Chiles v.

Child. A, B, C, D, E, & F, 589 So. 2d 260, 268-69 (Fla. 1991))); Fla. Dep't

of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001)

("A court's function is to interpret statutes as they are written and give

effect to each word in the statute."); Getzen v. Sumter County, 103 So.

104, 105 (Fla. 1925) ("In order that the state government may be one of

legal regulations lawfully administered, the Constitution provides for a

law enacting power, a law executing power, and also for a law

interpreting power, i.e., the judicial power."). It is equally inarguable that

that function encompasses the power of superior tribunals to review the

rulings of lower courts within their jurisdiction—a power expressly

conferred to those tribunals by our constitution. See art. V, § 3(b)(3),

Fla. Const. ("The supreme court . . . may review any decision of a district

court of appeal that expressly declares valid a state statute, or that

expressly construes a provision of the state or federal constitution, or

that expressly affects a class of constitutional or state officers, or that

expressly and directly conflicts with a decision of another district court of

appeal or of the supreme court on the same question of law."); § 4(b)(1)

("District courts of appeal shall have jurisdiction to hear appeals, that

may be taken as a matter of right, from final judgments or orders of trial

courts . . . not directly appealable to the supreme court or a circuit

court.").

44

When implemented, though, the recent controversy rule shunts

that interpretive power over to the legislative branch. For it both

facilitates and effectuates an alternative form of judicial review by the

legislature. Of course, the legislature is generally free to change the law

in such a way that its prospective application will contravene a prior

judicial interpretation of the prior law. But the recent controversy rule,

through the guise of clarification, accomplishes much more than that.

The closing lines of Madison at Soho and Hull give away the game.

In both cases, we deemed a legislative amendment to have "abrogated"

one of our prior holdings. See Hull, 349 So. 3d at 465 ("Recognizing—as

we must—the legislature's abrogation of James . . . ."); Madison at Soho,

198 So. 3d at 1119 ("The legislature abrogated our interpretation of

section 718.116(3) in St. Croix Lane Trust."). The effect of those

"abrogations," however, was completely retrospective; otherwise binding

precedent was swept aside, as if it never existed, so that a panel could

reconsider and then reconstrue the interpretation of a statute under the

guidance of a legislative session that didn't exist when the operative

statute was in effect. Cf. Hull, 349 So. 3d at 464 n.6 ("[W]e, 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.").

In essence, the recent controversy rule enables the legislature (or,

more accurately, one particular legislative session) to act as a surrogate

court of review. That is not a role for the legislature to assume in the

system established under our state constitution. See art. V, § 3(b)(3),

Fla. Const. If the James panel's interpretation of the prior version of

section 943.0435 was incorrect, it would be the function of this court

45

proceeding en banc or the Florida Supreme Court to declare it so. That

would be an interpretive correction, and interpretation of the law, as

we've already discussed, is uniquely vested to the judiciary under our

constitution. Cf. Trs. of Internal Imp. Fund v. Bailey, 10 Fla. 238, 251

(1863) (observing that the legislature's "province is to set the machinery

of the rights of property in motion, but they have not the power of

determining those rights" and that "[t]he latter is left to the judiciary,

who are independent of the other branches of the government").13

C.

It could be argued that the legislature's assumption of a reviewing

court's role under the aegis of the recent controversy rule passes

separation of powers muster because the rule is only ever applied by a

court. Assuming that's true (by ignoring the legislature's essential role in

the recent controversy rule's operation), we would then have to contend

with yet another problem this rule raises. When a panel of an appellate

court invokes the rule to reassess a prior panel's opinion in light of a

legislative amendment (as this court did in Hull and Madison at Soho), we

have a situation where one three-judge panel is effectively overruling

another.

It is well settled in Florida that a three-judge panel of a district

court of appeal is not at liberty to overrule or recede from a prior panel's

13 Apart from the legislative intrusion into judicial review, the

recent controversy rule may also encourage a reciprocal incursion by the

courts into the domain of the legislature. As Judge Atkinson observed,

"[b]y 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." Hull, 349 So. 3d at 471

(Atkinson, J., dissenting); see also Brown v. State, 358 So. 2d 16, 20 (Fla.

1978) ("The Florida Constitution requires a certain precision defined by

the legislature, not legislation articulated by the judiciary.").

46

controlling decision on the same point of law. See, e.g., Wood v. Fraser,

677 So. 2d 15, 18 (Fla. 2d DCA 1996) ("More important, because Arango

was the opinion of a three-judge panel, that panel, consistent with the

long-standing policy of this court, would not have receded from Moore,

even if it were inclined to do so, without first seeking en banc

consideration from the full court pursuant to Florida Rule of Appellate

Procedure 9.331."); Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., 347

So. 3d 63, 64 n.2 (Fla. 3d DCA 2020) ("Unless the Florida Supreme Court

overrules a prior panel's decision, a subsequent panel of this Court is not

free to disregard, and must follow, precedent of the prior panel."). The

recent controversy rule has, at times, elided this foundational principle of

how our appellate courts are supposed to work. See, e.g., Hull, 349 So.

3d 459; Madison at Soho II, 198 So. 3d 1111.

We've found no Florida appellate court opinion that has ever

acknowledged, much less reconciled, this awkward facet of the recent

controversy rule's application. The "abrogation" discussed in the prior

subsection doesn't wave the problem away. If the legislature can't act as

a court of review, it follows that the only organic authority for abrogating

a panel decision under the recent controversy rule is another panel's

decision. Having considered the rule's effect more fully, we are now of

the mind that if the recent controversy rule retains any vitality in the

advent of Ham and Conage (and, again, we don't think it does), and if the

rule's application in a case would effectively reverse, recede from, or

declare a prior panel's decision abrogated on the same point of law, then

only the court sitting en banc can apply the rule. For this reason as well,

we would recede from Hull and Madison at Soho insofar as they

represented an improper arrogation of en banc authority by a three-judge

panel of the court.

47

VI.

We hold that the recent controversy rule—in which a court

considers subsequent legislative amendments to construe the meaning of

prior statutory text—is no longer a viable method of construing statutory

text in the wake of the Florida Supreme Court's decisions in Ham and

Conage.14 We recede from Hull and Madison at Soho to the extent that

both of those decisions rested on the recent controversy rule's authority.

14 In his concurring in result only opinion, our colleague Judge

Atkinson now chides us for addressing the arguments Mr. Crose and the

State have made in these en banc proceedings while laboring to sketch

out a novel proposition about "methodological precedent" no one in this

litigation has ever suggested. See Miami-Dade County v. Omnipoint

Holdings, Inc., 863 So. 2d 195, 200 (Fla. 2003) ("Ordinarily an appellate

court does not give consideration to issues not raised below." (quoting

Hormel v. Helvering, 312 U.S. 552, 556 (1941))). According to our

colleague, Conage wasn't especially remarkable because supreme court

decisions in the two years prior to its issuance had already begun citing

the supremacy-of-text principle when interpreting statutes. We've

already discussed, at length, the evolution in the case law leading up to

Conage. In our view, Judge Atkinson's assessment of Conage fails to

reckon with what Conage said and what it did.

Holly, 450 So. 2d 217, was a seminal case of statutory

interpretation in Florida law for nearly forty years, having been cited,

applied, and followed in over 600 published opinions before Conage's

issuance. Conage did not simply clarify Holly (as Judge Atkinson's

opinion seems to imply). Conage abrogated the most oft-cited features of

Holly's holding. See Conage, 346 So. 3d at 598 ("[W]e address a

threshold issue about Florida's law of statutory interpretation. The

United States encourages us to use an approach that is often linked to a

passage from our Court's decision in Holly v. Auld, 450 So. 2d 217, 219

(Fla. 1984) . . . . We believe that the Holly principle is misleading and

outdated. . . . It would be a mistake to think that our law of statutory

interpretation requires interpreters to make a threshold determination of

whether a term has a 'plain' or 'clear' meaning in isolation . . . ."). Thus,

our analysis of Conage's displacement of Holly is not an "artificial line of

demarcation"; it is a reflection of the fact that arguments and issues do

not come before our court in an ether, but at temporal points in the law's

evolution. Holly's pronouncements that a statute's text only serves to

48

We return to the textual interpretation James gave the prior version

of section 943.0435. At the time of Mr. Crose's alleged offense, he was

required to register as a sex offender following his release from "the

sanction imposed," not just a single part of the sanction. Because

probation was part of Mr. Crose's sanction and he was still serving that

probation at the time of his alleged offense, the circuit court correctly

dismissed this charge. See James, 298 So. 3d at 94.

Having so held, we acknowledge that our decision today calls into

question the continued effect of certain portions of supreme court

precedents, including Lowry, Lanier, and Leftwich. We, therefore, certify

the following question of great public importance to the Florida Supreme

Court pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

CAN A COURT CONSIDER A CRIMINAL STATUTE'S

SUBSEQUENT AMENDMENTS TO CLARIFY A PRIOR

VERSION OF THE CRIMINAL STATUTE CONSISTENT WITH

THE SUPREMACY-OF-TEXT PRINCIPLE SET FORTH IN HAM

V. PORTFOLIO RECOVERY ASSOCIATES, 308 SO. 3D 942,

946 (FLA. 2020), AND CONAGE V. UNITED STATES, 346 SO.

3D 594 (FLA. 2022)?

We have answered the question in the negative and affirm the order

below accordingly.

Affirmed; question certified.

SLEET, C.J., and NORTHCUTT, CASANUEVA, KHOUZAM, ROTHSTEIN-

YOUAKIM, and LABRIT, JJ., Concur.

SILBERMAN, J., Concurs specially with an opinion in which LABRIT, J.,

Concurs.

illuminate a separate, subtextual intention and that, before relying on

canons of interpretation, statutes must be examined for ambiguity have

now been formally displaced. We have endeavored to resolve the issues

that have been argued in this proceeding, as best as we are able, in the

light of that displacement.

49

LaROSE, J., Concurs in result only with an opinion in which KELLY,

VILLANTI, MORRIS, BLACK, and SMITH, JJ., Concur.

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

SILBERMAN, J., Specially concurring.

I fully concur with the majority opinion and write solely to expand

on footnote 10, which mentions the State's concession that the absurdity

doctrine does not apply here. In our order granting the State's motion to

allow en banc briefing, we directed the parties to address "[w]hether the

'absurdity doctrine' applies and compels a particular outcome. See State

v. Lewars, 259 So. 3d 793, 800 (Fla. 2018); Maddox v. State, 923 So. 2d

442, 447-48, 453 (Fla. 2006)."

In Maddox, the Florida Supreme Court explained the absurdity

doctrine, stating that "although the strict meaning of the words in the

abstract employed by the Legislature when it drafted" a statute may

support a particular outcome, "such a sterile literal interpretation should

not be adhered to when it would lead to absurd results." 923 So. 2d at

448; see also Raik v. Dep't of Legal Affs., Bureau of Victim Comp., 344 So.

3d 540, 549 (Fla. 1st DCA 2022) ("In certain circumstances, the

absurdity doctrine may be used to justify departures from the general

rule that courts will apply a statute's plain language." (quoting State v.

Hackley, 95 So. 3d 92, 95 (Fla. 2012))). In Lewars, the Florida Supreme

Court reiterated that a statute need not be given a literal interpretation

when doing so would result in an unreasonable or ridiculous conclusion;

however, the absurdity doctrine should not be used in circumstances

which require a court to rewrite a statute instead of to correct a technical

or ministerial error. 259 So. 3d at 800-01.

Here, neither party argued that the absurdity doctrine should

apply. The State responded to our order, asserting that the doctrine does

50

not apply "but the related concept of construing a law consistent with its

evident purpose does." The State maintained that the absurdity

"doctrine allows a court to deviate from the otherwise plain meaning of a

text only 'if failing to do so would result in a disposition that no

reasonable person could approve,' " quoting Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 234 (2012), and

citing to Lewars, 259 So. 3d at 800-02. Unsurprisingly, Mr. Crose also

responded that the absurdity doctrine does not apply here, relying on his

argument that the trial court correctly analyzed the statutory language.

Still, it is not clear what policy reasons would support the

conclusion that a sex offender who is released from prison would not be

required to register and provide information as required by section

943.0435 until all portions of the offender's sanction, such as the

payment of fines or completion of probation, are satisfied. But because

neither party contends that the absurdity doctrine should apply, the

majority opinion correctly declines to further analyze the doctrine. When

the State has explicitly declined to make an argument, we will not act as

the State's advocate. See Burke v. Burke, 330 So. 3d 84, 86 (Fla. 2d DCA

2021) ("This Court will not depart from its dispassionate role and become

an advocate by second guessing counsel and advancing for him theories

and defenses which counsel either intentionally or unintentionally has

chosen not to mention." (quoting Polyglycoat Corp. v. Hirsch Distribs.,

Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983))), review denied, No. SC22-

82, 2022 WL 1566687 (Fla. May 18, 2022); see also Braddy v. State, 219

So. 3d 803, 825 (Fla. 2017) ("But Braddy fails to make any argument

regarding these claims on appeal. Accordingly, Braddy has waived any

issue on appeal regarding these claims."); Menchillo v. State, 350 So. 3d

136, 139 n.1 (Fla. 2d DCA 2022) ("An appellate court is 'not at liberty to

51

address issues that were not raised by the parties.' . . . For an appellant

to raise an issue properly on appeal, he must raise it in the initial brief.

Otherwise, issues not raised in the initial brief are considered waived or

abandoned." (quoting Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA

2019) (en banc))).

LABRIT, J., Concurs.

LaROSE, J., Specially concurring in result only.

I concur in the result reached by the majority. Because Mr. Crose

had not been released from his entire sanction, see § 943.0435(1)(h)1,

Fla. Stat. (2019); State v. James, 298 So. 3d 90, 92 (Fla. 2d DCA 2020),

the trial court order is properly affirmed.

The majority offers a thoughtful and thorough examination of the

supremacy-of-the-text doctrine and the recent controversy rule.

Respectfully, however, I believe that the majority poses a false choice. To

my mind, the majority needlessly jettisons the recent controversy rule as

so much jetsam. Because of the supremacy-of-the-text doctrine, the

majority, in my view, seemingly concludes that the recent controversy

rule no longer holds sway. As Justice Kagan once remarked, "we are all

textualists." Harvard Law School, The Antonin Scalia Lecture Series: A

Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube

(Nov. 25, 2015) https://www.youtube.com/watch?v=dpEtszFT0Tg.

Maybe so; but on the record before us, I see no need to make the

choice offered by the majority. The statute under which the State

charged Mr. Crose is clear and unambiguous. Consequently, courts

should "not look behind the statute's plain language for legislative intent

or resort to rules of statutory construction to ascertain intent."

52

Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008) (alteration in original)

(quoting Borden v. E. Eur. Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)). The

supremacy-of-the-text doctrine compels affirmance. See, e.g., Savona v.

Prudential Ins. Co. of Am., 648 So. 2d 705, 707 (Fla. 1995) ("Because the

language of the statute is clear, we do not look beyond it to discern

legislative intent."); Dean Wish, LLC v. Lee County, 326 So. 3d 840, 850

(Fla. 2d DCA 2021); Ellsworth v. State, 89 So. 3d 1076, 1078 (Fla. 2d

DCA 2012) ("When the statutory language is clear, courts may not

explore legislative history nor apply canons of statutory construction.");

Fla. Retail Fed'n, Inc. v. City of Coral Gables, 282 So. 3d 889, 895-96 (Fla.

3d DCA 2019) ("There is no need to resort to rules of statutory

construction because the statutory text is clear."), review denied, No.

SC19-1798, 2020 WL 710303 (Fla. Feb. 12, 2020). Our work is done.

Although I appreciate the majority's efforts to resolve an apparent

conundrum that has, by all accounts, bedeviled many Florida courts, Mr.

Crose's case, quite simply, does not compel us to trek down a path we

need not tread. See Amy Coney Barrett, Substantive Canons and Faithful

Agency, B.U. L. Rev, 109, 112 (2010) ("The rival theories [of statutory

interpretation] in this regard were - and remain - purposivism and

textualism. Purposivism, the classical approach to statutory

interpretation, claims that a judge should be faithful to Congress's

presumed intent rather than to the statutory text when the two appear to

diverge. Textualism, by contrast, maintains that the statutory text is the

only reliable indication of congressional intent. The defining tenet of

textualism is the belief that it is impossible to know whether Congress

would have drafted the statute differently if it had anticipated the

situation before the court. The legislative process is path-dependent and

riddled with compromise." (footnote omitted)).

53

I cannot ignore the fact that the legislature amended section

943.0435 after James. The State urges us to apply the amended statute

because it reflects the legislature's true intent. See ch. 2021-156, § 1,

Laws of Fla. ("The Legislature 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 . . . [b]een released from a sanction imposed upon

conviction."). After all, our supreme court informs us that "[c]ourts may

look to a statutory amendment as clarification of the legislature's 'intent

behind the prior version of the statute.' " Dean Wish, LLC, 326 So. 3d at

850 (quoting Leftwich v. Fla. Dep't of Corr., 148 So. 3d 79, 83-84 (Fla.

2014))). That precedent remains undisturbed. Id. I would not be so bold

as to conclude that our supreme court abandoned the recent controversy

rule sub silentio. See Puryear v. State, 810 So. 2d 901, 905-06 (Fla.

2002) ("We take this opportunity to expressly state that this Court does

not intentionally overrule itself sub silentio. Where a court encounters

an express holding from this Court on a specific issue and a subsequent

contrary dicta statement on the same specific issue, the court is to apply

our express holding in the former decision until such time as this Court

recedes from the express holding. Where this Court's decisions create

this type of disharmony within the case law, the district courts may

utilize their authority to certify a question of great public importance to

grant this Court jurisdiction to settle the law."); cf. Christopher J.

Baldacci, The Common Law of Interpretation, 108 Virginia L. Rev. 1243,

1245 (2022) ("For many years, judges and scholars have agreed there is

no such thing as 'methodological stare decisis.' No Supreme Court

majority opinion purports to require that future justices be textualists or

purposivists. Nor does one majority's decision to use a particular

54

extrinsic source (like dictionaries or drafting history) seem to mean that

future courts must do the same. Thus, while a given case may stand for

any number of legal propositions, each court supposedly writes on a

blank methodological slate." (footnote omitted)).

The recent controversy rule is no more than an interpretive tool in

a court's toolbox to discern statutory meaning. But a court should not

apply the rule in a wooden fashion. Indeed, our supreme court urges

caution. A legislature cannot retroactively nullify the clear and

unambiguous language used by a prior legislature to express its current

intent. Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins., 945 So. 2d

1216, 1230 (Fla. 2006) (recognizing that the Florida Supreme Court has

"been reluctant to look at subsequent amendments to determine

legislative intent when the language of a statute is clear and

unambiguous"); Kaisner v. Kolb, 543 So. 2d 732, 738 (Fla. 1989)

("Subsequent legislatures, in the guise of 'clarification,' cannot nullify

retroactively what a prior legislature clearly intended.").

This is particularly important for Mr. Crose. The State's position

presents serious concerns about ex post facto laws, laws prohibited by

our national and State constitutions. See art. I, § 10, cl. 1, U.S. Const.;

art. I, § 10, Fla. Const. Even in the civil context, unrestrained

application of the recent controversy rule could impair contractual

obligations undertaken pursuant to a clear and unambiguous statute.

Cf. Fla. Ins. Guar. Ass'n v. Devon Neighborhood Ass'n, 67 So. 3d 187, 195

(Fla. 2011) ("The presumption against retroactive application is a well-

established rule of statutory construction that is appropriate in the

absence of an express statement of legislative intent because 'a

presumption against retroactivity will generally coincide with legislative

55

and public expectations.' " (quoting Arrow Air, Inc. v. Walsh, 645 So. 2d

422, 425 (Fla. 1994))).

The statute before us is clear and unambiguous. Thus, the text

compels the majority's result. Having said that, however, I cannot

conclude that there can never be a place for the recent controversy rule.

To say it again, the rule is a tool of interpretation.

One may imagine a situation where a statutory text is less than

clear. See, e.g., Kasischke, 991 So. 2d at 807 (determining, in five-to-two

vote that "[t]he plain language of the statute could be construed in at

least four ways," while the two dissenting justices, writing separately,

asserted that the plain meaning of the statute was unambiguous). All

must agree that "[s]ince words, by their nature, are imprecise

instruments, . . . [statutes] . . . may have gray areas at the margins."

United States v. Barnes, 295 F.3d 1354, 1366 (D.C. Cir. 2002) (quoting

U.S. v. Nason, 269 F.3d 10, 22 (1st Cir. 2001)). A panoply of

interpretative tools is available to a reviewing court. See Karl N.

Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or

Canons about how Statutes are to be Construed, 3 Vand. L. Rev. 395,

401-06 (1950) (listing a variety of canons for statutory construction). It

seems to me that a court could look to postenactment amendments as

one clue to discern the meaning of unclear and/or ambiguous text. See,

e.g., D & T Props., Inc. v. Marina Grande Assocs., 985 So. 2d 43, 48 (Fla.

4th DCA 2008) (reasoning that the statutory amendments "did not nullify

the plain language of earlier legislation" where "[t]he legislation clarified

an ambiguity in earlier legislation").

A minimalist approach to the law is prudent. I would affirm the

trial court's order based on the supremacy-of-the-text doctrine. I would

recede from Hull and Madison at Soho to the extent they suggest that the

56

recent controversy rule may be applied to otherwise clear and

unambiguous statutory text. Delving further into the continuing vitality

of the recent controversy rule takes us well beyond what we need to do.

This I cannot abide. See PDK Lab'ys, Inc. v. U.S. D.E.A., 362 F.3d 786,

799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in

the judgment) (observing that judicial restraint cautions that when "it is

not necessary to decide more, it is necessary not to decide more").

KELLY, VILLANTI, MORRIS, BLACK, and SMITH, JJ., Concur.

ATKINSON, Judge, Concurring in result.

I concur in the result reached by the majority. The recent

controversy rule is incompatible with our role as members of the

judiciary, which, when it comes to the interpretation of legal texts,

requires us to apply the language in accordance with the ordinary

meaning of the words in their context.

To the extent [the recent controversy rule] 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 . . . .").

Hull v. State, 349 So. 3d 459, 467 (Fla. 2d DCA 2022) (Atkinson, J.,

dissenting). A failure to carry out this role by applying the recent

controversy rule would jeopardize the rule of law because we would be

57

substituting what the text says with what we conclude it should say

based on a subsequent pronouncement of legislative intent. See id.

(Atkinson, J., dissenting) ("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. Courts may not apply the law in derogation of that meaning."

(citations omitted)); cf. State v. Peraza, 259 So. 3d 728, 733 (Fla. 2018)

("Because even a clearly discernible Legislative intent cannot change the

meaning of a plainly worded statute, it would only confuse matters to

focus on what the Legislature might have intended rather than what the

statute actually says."). And it would violate the constitution's

separation of powers requirement because we would be supplanting the

text enacted by the legislature that passed the law with something

enacted at a later time—ignoring the meaning of language employed by

the legislative branch in favor of a meaning derived from an extraneous

source. See Hull, 349 So. 3d at 465, 468 (Atkinson, J., dissenting). For

these reasons, the recent controversy rule should have no application in

Florida jurisprudence.

Yet it does. As the majority points out, the recent controversy rule

has a long history of usage by Florida appellate courts. In this court's

most recent discussion of the rule, the majority in Hull considered itself

bound to follow the rule. See id. at 464, 464 n.6 (majority opinion)

(concluding that "we are bound to consider the legislature's clarified

intent" under the recent controversy rule because it is a "settled facet of

the law in our State"). I dissented and avoided the question of whether

the recent controversy rule is precedential because prior cases

58

construing the rule from the supreme court and this court were

inapposite. See id. at 465 (Atkinson, J., dissenting) ("This court is not

bound by precedent to apply the rule under the circumstances of this

case . . . ."). While the majority in this case avoids directly resolving the

dichotomy it frames between the rule being "discretionary" or "quasi-

mandatory," it tacitly concludes that the rule is binding precedent

because it employs another purportedly binding doctrine to overrule it. I

find common cause with much of the criticism leveled in the majority

opinion against the recent controversy rule. However, I am unable to

join in the effort to drive a stake in the heart of the doctrine because the

logic employed by the majority to effect the doctrine's demise is flawed.

The majority's reason for overruling the recent controversy rule is

what it characterizes as a "recent embrace" of the supremacy-of-text

principle for interpreting statutes, characterizing the embrace as so

significant that it constitutes a "paradigm shift in Florida law." The

majority reasons that the paradigm shift, combined with the Florida

Supreme Court's Conage decision, has rendered the recent controversy

rule incompatible with this new regime and resulted in the Florida

Supreme Court overruling the recent controversy rule sub silentio. While

it is reasonable to observe that a paradigmatic shift has occurred, it is a

separate question whether this recent "embrace" constitutes binding

precedent that overruled past decisional law implementing the recent

controversy rule such that the interpretive method is thenceforth

unavailable to all inferior court judges—as is the question of at what

point in time, if ever, this overruling occurred. The majority then

contends that even if the recent controversy rule was not overruled, the

shift in statutory interpretation now gives life to previously inapplicable

59

constitutional concerns of ex post facto laws and due process violations.

See infra note 16.

It is inaccurate to describe the supreme court's "embrace" of the

supremacy-of-text principle as "recent" when that approach to the

interpretation of legal texts had already been espoused in several

opinions of the supreme court at the time Hull was decided in 2022. See

Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 119 (Fla. 2021);

Levy, 326 So. 3d at 681; Page, 308 So. 3d at 958; Ham v. Portfolio

Recovery Assocs., LLC, 308 So. 3d 942, 946–47 (Fla. 2020); Advisory Op.

to Governor re Implementation of Amend. 4, the Voting Restoration

Amend., 288 So. 3d 1070, 1078 (Fla. 2020). The majority even cites case

law predating Hull for the proposition that the supreme court "has now

instructed us to 'follow the supremacy-of-text principle.' " (Emphasis

added) (quoting Ham, 308 So. 3d at 946). If the recent controversy rule

was available as an interpretive tool at the time Hull was decided by

virtue of the supreme court's past usage of the rule, then it follows that

the supremacy-of-text principle was also available as an interpretive tool

at the time Hull was decided. See Hull, 349 So. 3d at 467–68 (Atkinson,

J., dissenting) (contending that the application of the recent controversy

rule would violate "the supremacy-of-the-text principle" (quoting Levy,

326 So. 3d at 681)). Yet, at a time when several Florida Supreme Court

opinions had been decided based on the supremacy-of-text principle, the

majority in Hull decided that the recent controversy rule should be

applied in derogation of the text. See id. at 464 n.6 (majority opinion)

(conceding that this court correctly interpreted the preamendment

statutory text in James but nevertheless applying a different

interpretation under the recent controversy rule). Manifestly, the

60

putative "incompatibility" between the two doctrines claimed by the

majority in this case was extant at the time Hull was decided.

To be clear, I do not argue that the two doctrines are not

incompatible; to the contrary, when a judge seizes upon what he or she

perceives as some indicia of legislative intent and favors it over the

ordinary meaning of the text of the document being interpreted, the

legislative-intent-as-polestar method and the supremacy-of-text principle

are irreconcilable. It was for parallel reasons that I asserted in my

dissenting opinion in Hull that the recent controversy rule—which is

itself, to paraphrase the majority's astute observation, premised on the

supremacy of legislative intent—is incompatible with the supremacy-of-

text philosophy. Indeed, two competing things cannot both be supreme

when they are in conflict. And yet, even according to the majority's

rationale for the disparate treatment of the recent controversy rule in

Hull and this case, both the legislative-intent-as-polestar methodology

and the supremacy-of-text principle had been espoused by, and formed

the basis of, supreme court decisions in the era that persisted up until

the Conage case was decided. See, e.g., Ham, 308 So. 3d at 946 ("In

interpreting the statute, we follow the 'supremacy-of-text principle'—

namely, the principle that '[t]he 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))); McCloud v. State, 260 So. 3d

911, 914 (Fla. 2018) (reasoning the purpose of statutory interpretation

"is to effectuate the Legislature's intent because 'legislative intent is the

polestar that guides a court's statutory construction analysis.' " (quoting

State v. J.M., 824 So. 2d 105, 109 (Fla. 2002))). The explanation for this

coexistence of incompatible interpretive methodologies is not perplexing

61

(and indeed is not historically atypical) if one considers the

methodologies as merely competing tools of interpretation rather than

binding precedential pronouncements of the high court. Because the

majority takes the latter view, a line of demarcation was logically

necessary to justify the disparate treatment of the recent controversy rule

as it was applied in the Hull decision and in this case.

As discussed, the unignorable volume of pre-Hull Florida Supreme

Court decisions relying on the supremacy-of-text principle poses a

challenge for the majority's rationale. See, e.g., Sheffield, 329 So. 3d at

119; Levy, 326 So. 3d at 681; Page, 308 So. 3d at 958; Ham, 308 So. 3d

at 946–47; Advisory Op. to Governor re Implementation of Amend. 4, 288

So. 3d at 1078. The majority attempts to elide this chronological

problem by citing the post-Hull decision of Conage v. United States, 346

So. 3d 594 (Fla. 2022), as a fulcrum point for the proposition that the

supreme court "unequivocally abandoned the legislative intent approach

[to statutory interpretation] emblemized in Holly [v. Auld, 450 So. 2d 217

(Fla. 1984)]." However, in Conage, the supreme court took issue with

only the following sentence from the Holly decision: "When the language

of the statute is clear and unambiguous and conveys a clear and definite

meaning, there is no occasion for resorting to the rules of statutory

interpretation and construction." Conage, 346 So. 3d at 598 (quoting

Holly, 450 So. 2d at 219). The supreme court reasoned that, "[i]n

practice, following this maxim often leads the interpreter to focus on a

disputed word or phrase in isolation; [and] the maxim also leaves the

interpreter in the dark about how to determine whether a particular word

or phrase has a clear meaning." Id. The supreme court consequently

labeled the aforementioned "Holly principle" as "misleading and

62

outdated," and reaffirmed supremacy-of-text principles that it had

already pronounced in at least seven prior decisions:

[J]udges must exhaust all the textual and structural clues

that bear on the meaning of a disputed text. That is

because the plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific

context in which that language is used, and the broader

context of the statute as a whole.

. . . It would be a mistake to think that our law of

statutory interpretation requires interpreters to make a

threshold determination of whether a term has a "plain" or

"clear" meaning in isolation, without considering the

statutory context and without the aid of whatever canons

might shed light on the interpretive issues in dispute.

Id. (citations omitted) (first quoting Alachua County v. Watson, 333 So. 3d

162, 169 (Fla. 2022); then quoting Robinson v. Shell Oil Co., 519 U.S.

337, 341 (1997)); see Lab'y Corp. of Am. v. Davis, 339 So. 3d 318, 323

(Fla. 2022) (explaining that, under the supremacy of text principle, one

looks to the words and the context in which they are used); Sheffield,

329 So. 3d at 119 (same); Levy, 326 So. 3d at 681 (same); State v.

McKenzie, 331 So. 3d 666, 670–71 (Fla. 2021) (same); Page, 308 So. 3d

at 958 (same); Ham, 308 So. 3d at 946–47 (same); Advisory Op. to

Governor re Implementation of Amend. 4, 288 So. 3d at 1078 (same).

The majority overstates the Conage opinion. Conage solely

addressed an often-cited principle from the supreme court's 1984 Holly

decision that misled courts into analyzing the meaning of a disputed text

in isolation without considering the context of that text. 346 So. 3d at

598. The supreme court concluded that courts are not limited to

reviewing disputed words in isolation when determining whether they are

clear or ambiguous and abrogated Holly to the extent it required courts

to do so, instead authorizing courts to consider the disputed text, its

63

context, and any helpful canons of interpretation in evaluating whether a

particular word or phrase has a clear meaning or is ambiguous. Id.

One need not minimize the undeniable importance of Conage to

conclude that it had nothing to do with legislative intent and that there is

no reasonable way to read the opinion to conclude that it abrogated an

entire legislative-intent approach to statutory interpretation. By

reaffirming that context is always relevant to interpreting legal texts and

clarifying that ascertainment of the meaning of the text of a statute by

resort to the canons of construction does not depend on a threshold

determination of its ambiguity, Conage reaffirmed the supremacy-of-text

principle that had already been pronounced on many prior occasions,

including those predating this court's Hull decision. Nor was Conage an

explicit repudiation of the proposition that the "polestar" of legislative

intent was available to guide judges' interpretation of statutes, see

McCloud, 260 So. 3d at 914, much less a sub silentio elimination of the

recent controversy rule. As pernicious as the long-standing obeisance to

the elusive concept of legislative intent might be to those who believe the

text should be supreme in matters of statutory construction, Conage

cannot be relied upon to eradicate all intent-based interpretive methods

any more than it can be perceived as an eradication of the related but

likewise long-standing availability of the recent controversy rule.

Eliding the arbitrariness of its selection of Conage as the

demarcation between the era in which the recent controversy rule was

mandatory and the new era in which the rule is now verboten, the

majority protesteth too much, methinks, when it informs the reader that

"it is not hyperbole to observe that Conage's displacement of Holly and

the supreme court's recent embrace of the supremacy-of-text principle

constituted a paradigm shift in Florida law." The majority's selection of

64

Conage as the pertinent fulcrum point between one method of statutory

interpretation and another to support its rationale cannot be justified as

anything more than an arbitrarily drawn line in the shifting sand of

interpretive jurisprudence.

Moreover, even if, for the sake of analysis, Conage could be

considered a relevant line of demarcation, it is also difficult to conclude

that the case overruled the recent controversy rule because it is not clear

that the supremacy-of-text principle, a methodological precedent, is

entitled to binding precedential effect under stare decisis. See, e.g., Kisor

v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring) ("[W]e

do not regard statements in our opinions about such generally applicable

interpretive methods, like the proper weight to afford historical practice

in constitutional cases or legislative history in statutory cases, as binding

future Justices with the full force of horizontal stare decisis." (first citing

Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis,

102 Geo. L.J. 1573, 1577 & n.12 (2014); then citing Chad M. Oldfather,

Methodological Stare Decisis and Constitutional Interpretation, in United

States Supreme Court Precedent 135, 135–36 (Christopher J. Peters ed.

2013))); Cabeda v. Att'y Gen. of U.S., 971 F.3d 165, 171 n.4 (3d Cir.

2020) ("[S]hifting interpretive methodologies are not usually viewed as

carrying the force of stare decisis, at least not when the decisions

employing them do not purport to overrule past precedent. We have

noted that the Supreme Court 'typically avoids methodological stare

decisis,' while observing that 'federal courts do not treat interpretive

methodology as a traditional form of law.' " (citation omitted) (quoting

Am. Farm Bureau Fed'n v. U.S. E.P.A., 792 F.3d 281, 307 n.8 (3d Cir.

2015))).

65

In other words, inferior courts are arguably no more obligated to

adhere to the supremacy-of-text principle espoused by current and

recent members of the Florida Supreme Court than were inferior courts

required to follow the legislative-intent-as-polestar philosophy that was

espoused by past members of the Florida Supreme Court. I do not

believe that inferior court judges were compelled to follow the "polestar"

of "legislative intent," illuminated by the Florida Supreme Court during

the era in which adherents to that methodology prevailed among its

ranks. See, e.g., McCloud, 260 So. 3d at 914. If inferior court judges

during that time could not in intellectual honesty bend to the notion that

perceptions of legislative intent should be their guide because they in

good conscience thought the text to be supreme, they were free to hew to

the ordinary meaning of the text despite supreme court case law

pronouncing that legislative intent should be paramount. Therefore,

despite my belief that the supremacy-of-text principle is consistent with

the proper role of judges in our tripartite system of government—and

that a legislative-intent-as-polestar methodology is inconsistent with that

role because of its propensity to subordinate the meaning of the text

itself—I cannot conclude that supreme court opinions relying on the

supremacy-of-text principle constitute binding precedent compelling

inferior courts to forever and under all circumstances foreswear

legislative intent as relevant to the interpretation of statutes.

[M]ethodological decisions are frequently intertwined with a

judge's most fundamental beliefs and commitments about the

rule of law and democracy, and the application of stare

decisis to interpretive methodology would in principle require

judges to make what they view as unconscionable decisions.

Once again, it is one thing to require judges to follow binding

substantive rules with which they disagree, but it is another

thing to require judges to follow higher-order rules that force

them to make decisions on issues of first impression in a

66

manner that is contrary to their fundamental understanding

of the role of federal courts in a constitutional democracy. It

is hard to believe, for example, that Justice Scalia would

agree to decide every future statutory case that comes before

the Court in a purposive fashion merely because Justice

Breyer was able to persuade a five-Justice majority to adopt

this approach in the first case decided under a regime of

methodological stare decisis.

Criddle & Staszewski, supra, at 1595 (arguing that "federal courts should

resist the siren song of methodological stare decisis").

The legislative-intent-as-polestar philosophy that the majority

observantly describes as regnant in a bygone era and the supremacy-of-

text principle that it identifies as the now-prevailing method in light of

recent supreme court case law share one thing in common: they are both

methodological precedents of the variety that courts and commentators

have historically considered to be outside the ambit of stare decisis.

They are interpretive tools, the employment of which does not constitute

binding precedent. Cf. Kisor, 139 S. Ct. at 2444 (Gorsuch, J.,

concurring) (identifying the "interpretive methodology" at issue as "an

abstract default rule of interpretive methodology that settles nothing of

its own force," "[i]n contrast to precedents that fix the meaning of

particular statutes and generate reliance interests in the process"

(emphasis in original)). That I and others celebrate the fall of the former

and the rise of the latter as a salutary development in high court

jurisprudence should not give way to the temptation to lock in perceived

victories as something more than they are. That sword has two edges,

and a welcome supreme court trend toward adherence to a fair reading of

the text itself and away from slippery notions of legislative intent could

easily be reversed in the future by the vicissitudes of court membership.

The same criticism against those interpretive methods as subject to

stare decisis can arguably be leveled at the recent controversy rule

67

itself—that is, the rule is arguably methodological precedent that is not

binding on subsequent panels or inferior courts. As I noted in my

dissenting opinion in Hull, and as the majority in this case has

acknowledged, this court and others have treated the recent controversy

rule merely as an interpretive tool without binding precedential effect.

Cf. Hull, 349 So. 3d at 466 (Atkinson, J., dissenting) (noting that "courts

of this state have instead characterized the recent controversy rule as a

method of statutory interpretation"); see also Hardee County v. FINR II,

Inc., 221 So. 3d 1162, 1167 (Fla. 2017) (referring to the evaluation of

"amendments enacted shortly after controversies as to the interpretation

of the original act" as a "tool[] of statutory interpretation"); Dadeland

Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1230 (Fla.

2006) (explaining that "it may be within this Court’s discretion to look to

the Legislature’s recent amendment of section 624.155 to assist in

construing the term 'insured' " (emphasis added)); State v. Lanier, 464

So. 2d 1192, 1193 (Fla. 1985) (“[W]e are not bound by statements of

legislative intent uttered subsequent to either the enactment of a statute

or the actions which allegedly violate the statute."); Dean Wish, LLC v.

Lee County, 326 So. 3d 840, 850 (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."). But, as pointed out by the majority,

the body of available case law also includes opinions that treat the recent

controversy rule as mandatory precedent. See, e.g., Hull, 349 So. 3d at

464 n.6 (acknowledging the court's prior opinion in James correctly

applied the preamendment text of the statute, but using the recent

controversy rule to apply a different meaning because the rule is a

"settled facet of the law in our State").

68

Admittedly, the argument for the supremacy-of-text principle and

other methodological precedents as binding precedent is not completely

bereft of merit—or appeal—and certainly not without its thoughtful and

learned proponents (which, of course, include my colleagues in the

majority of this case). See, e.g., Aaron-Andrew P. Bruhl, Eager to Follow:

Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101,

102 (2020) (describing "the hope of [methodological precedent] advocates

. . . that making interpretive methodology into binding law will reduce

the much lamented unpredictability of statutory interpretation"). The

Florida Supreme Court and some of its members have occasionally

employed authoritative language when describing a preferred interpretive

methodology, which such admonitions could be perceived as (or

mistaken for) the setting of binding precedent. See, e.g., State Farm Mut.

Auto. Ins. Co. v. Shands Jacksonville Med. Ctr., 210 So. 3d 1224, 1229

(Fla. 2017) ("[W]e must consider the statute as a whole, including the evil

to be corrected, the language, the title, and history of its enactment, and

the state of law already in existence on the statute." (emphasis added)

(quoting Fla. Dep't of Env't Protc. v. ContractPoint Fla. Parks, LLC, 986 So.

2d 1260, 1266 (Fla. 2008))); Metro. Cas. Ins. Co. v. Tepper, 2 So. 3d 209,

215 (Fla. 2009) ("Because the plain language of section 627.727(6)(b)

plainly states that an UM carrier 'is entitled to seek subrogation' only

'upon final resolution of the underinsured motorist claim,' we conclude

that the statute is mandatory . . . . This result is supported by the plain

language of the statute and our precedent on statutory interpretation."

(emphasis added)); Kasischke v. State, 991 So. 2d 803, 824 n.27 (Fla.

2008) (Lewis, J., dissenting) ("Under binding precedent, legislative

history—and specifically staff analyses—remain appropriate tools in

discerning the intent of the Legislature. . . . The current majority opinion

69

attempts to alter this precedent through gradual subterfuge. I cannot

take such a stance with regard to stare decisis unless and until the

existing precedent is overruled." (emphasis added)). It is far from certain,

however, that inferior courts are consequently obligated to—or even

capable of—slavish adherence to the particular application of any of the

interpretive methods employed in those cases and in the hierarchical

order in which competing canons are applied, which themselves are not

all sacrosanct but subject to realignment depending on the

circumstances of each case. See Criddle & Staszewski, supra, at 1593

(" '[S]tatutory interpretation methodology does not seem susceptible to

the rule-like approach of stare decisis' because it is fundamentally 'a web

of considerations with different and varying weights rather than a set of

hierarchical rules.' " (quoting Connor N. Raso & William N. Eskridge, Jr.,

Chevron as a Canon, Not a Precedent: An Empirical Study of What

Motivates Justices in Agency Deference Cases, 110 Colum. L. Rev. 1727,

1811 (2010))).

However, that debate need not be resolved here for several reasons.

First, the majority's artificial line of demarcation is not supported by logic

or the case law on which it relies. What is readily apparent is that the

majority treats this case differently than the majority treated the near

identical circumstances of Hull based on supreme court precedent that

predated the Hull case and the Conage opinion. And quite simply,

nothing pertinent has changed since Hull, and whatever change was

effected by Conage did not alter the precedential effect—or lack thereof—

of prior cases that applied the recent controversy rule. Indeed, the

majority cites cases predating both Hull and Conage for the proposition

that the supreme court "has now instructed us" to "follow the

'supremacy-of-text' principle." (Emphasis added) (quoting Ham, 308 So.

70

3d at 946). This raises the unanswered question of what the supreme

court was doing in Ham or the several other pre-Conage supreme court

cases decided based on the supremacy-of-text principle (merely

suggesting its availability as an interpretive tool?). The fatal

shortcomings of the majority's selection of one among many prior and

subsequent supreme court supremacy-of-text opinions as a point certain

at which the recent controversy rule can "no longer be aligned within

current Florida jurisprudence" belie the gravamen of its "paradigm shift"

rationale for the course correction. (Emphasis added.). So, even if the

supremacy-of-text principle is subject to vertical stare decisis15—an open

question for which I concede a case could possibly be made—the

utilization of the interpretive method in Conage cannot be deemed a

holding that obligates inferior courts to consider the supreme court to

have overruled sub silentio its previous approval of the use of the recent

controversy rule. See Stevens v. State, 226 So. 3d 787, 792 (Fla. 2017)

(explaining that the supreme court does not overrule itself sub silentio);

accord Arsali v. Chase Home Fin. LLC, 121 So. 3d 511, 516 (Fla. 2013);

Roberts v. Brown, 43 So. 3d 673, 683 (Fla. 2010); Tompkins v. State, 994

So. 2d 1072, 1088 (Fla. 2008); Puryear v. State, 810 So. 2d 901, 905 (Fla.

2002).

Another reason we need not at this time resolve the debate about

what binding effect to afford methodological precedent such as legislative

intent primacy or textual supremacy is that there are other more

15 See Abbe R. Gluck, The States as Laboratories of Statutory

Interpretation: Methodological Consensus and the New Modified

Textualism, 119 Yale L.J. 1750, 1773 n.73 (2010) (contrasting "horizontal

methodological stare decisis"—when "the state supreme court itself

follows its own previous methodological statements from case to case"—

with "vertical methodological stare decisis"—"which involves the

relationship between higher and lower courts").

71

compelling reasons to reject application of the recent controversy rule in

this case and others—even leaving aside the question of whether the

recent controversy rule itself was ever binding precedent subject to stare

decisis. For one, there is a paucity of case law indicating that the recent

controversy rule should be applied—as it was in Hull—"explicitly" and

admittedly "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."

Hull, 349 So. 3d at 473 (Atkinson, J., dissenting) (comparing the

majority's decision to Leftwich v. Florida Department of Corrections, 148

So. 3d 79, 86 (Fla. 2014), in which "[t]he 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 preamendment

statute to be the effect of the statute—i.e., as 'a clarification of original

legislative intent rather than a change in the law' " (emphasis added)

(quoting Leftwich, 148 So. 3d at 86)).

More importantly, there is no case law applying the recent

controversy rule to impose on the version of the statute in effect at the

relevant time a meaning its text cannot bear in violation of the

constitutional prohibitions against ex post facto laws or the impairment

of the obligations of a contract. See, e.g., id. at 473 (Atkinson, J.,

dissenting) ("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 preamendment

72

version of the statute in effect at the time of the facts giving rise to the

controversy." (emphasis in original)). Despite the requirement to follow

the decisions of the Florida Supreme Court and the generally accepted

obligation to follow prior panel precedent, I am "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."

Id. at 471–72 (Atkinson, J., dissenting). While the Florida Supreme

Court has applied the recent controversy rule in a criminal case, it did

not do so to contravene the meaning of the language of the statute in

effect at the time of the alleged commission of the crime (which is what

the Hull majority admittedly did), but rather to clarify legislative intent

that was consistent with the unambiguous language of the original

statute. See Leftwich, 148 So. 3d at 85–88; Lanier, 464 So. 2d at 1193.

And none of this court's prior opinions construing the recent controversy

rule "contain binding interpretations of constitutional provisions" that

should have precluded application of the rule. Hull, 349 So. 3d at 473

(Atkinson, J., dissenting) (distinguishing this court's decision in Madison

at Soho II Condo. Ass'n v. Devo Acquisitions Enters., LLC, 198 So. 3d 1111

(Fla. 2d DCA 2016), on the grounds that its constitutional discussion

was dicta and that the 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 even conceding for the sake of analysis that courts were bound

by the legislative-intent-as-polestar interpretive method that the majority

in this case describes as preeminent prior to Conage, the majorities in

Hull and in Madison at Soho were giving effect to the wrong legislative

intent. In those opinions, the judicial branch was showing deference to

73

the wrong legislature—not the one that enacted the law in effect at the

time of the facts giving rise to the action but the one that issued a post

hoc legislative pronouncement enacted after the time period in question.

See id. at 468 (Atkinson, J., dissenting) ("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." (emphasis in original)). In so

doing, instead of maintaining the separation of powers, implementation

of the recent controversy rule by those courts was subverting the

separation of powers by supplanting the text enacted by the legislature in

the version of the statute applicable to the controversy with language

included in a law that was not enacted until later in time.

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, 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. 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.

Id. (Atkinson, J., dissenting) (emphasis in original) (citations omitted).

In this case, as in Hull, that subversion of the rule of law and

violation of the separation of powers would adversely affect a litigant's

constitutional right against ex post facto laws. See Griffin v. State, 980

So. 2d 1035, 1036 (Fla. 2008) (explaining the test of whether a law

violates the ex post facto clause as "(1) whether the law is retrospective in

74

effect; and (2) whether the law alters the definition of criminal conduct or

increases the penalty by which a crime is punishable"). The amended

statute and legislative expression of intent that the State would have us

apply in this case changes the plain and ordinary meaning of the

preamendment statute that was in effect at the time of Mr. Crose's

alleged offense, such that the amendment alters what constitutes the

crime of failure to report as a sexual offender to something different than

what constituted the crime at the time of Mr. Crose's failure to act. See

Hull, 349 So. 3d at 469 (Atkinson, J., dissenting) ("Under the pre-

amendment section 943.0435, the defendant was not subject to the

obligation he is alleged to have criminally failed to perform. 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, would violate the constitutional prohibition of ex post facto

laws." (citations omitted)).

In summation, there are several compelling reasons to reject

application of the recent controversy rule without addressing the

questions of methodological stare decisis that the majority's rationale

necessarily raises. I reject the majority's rationale because it is both

chronologically challenged and because I cannot accept one of its

necessary premises. Whatever precedential effect the recent controversy

rule has or had—and I do not concede it ever had binding effect—I do not

agree that in this case the court was compelled to apply the recent

controversy rule by any decision of the supreme court or any pre-Hull

decision of this court.

The arbitrariness of the majority's chronology has real-world

consequences. Mr. Crose is being treated differently than Mr. Hull. The

majority in his case did not consider the purported crossing of the

75

Rubicon that it and the rest of the en banc majority now announces to

have occurred at a time that was, unfortunately for Mr. Hull, too late for

him. I would have granted Mr. Hull the relief afforded to Mr. Crose today

when Mr. Hull advanced similar arguments in his case.16

Accordingly, in this case, I concur in result for the reasons herein

and those on which I elaborated in my dissenting opinion in Hull. I

would apply the ordinary meaning of the statute's text as it existed at the

time of Mr. Crose's alleged offense because the recent controversy rule,

deeply flawed as it is on its merits, is also not something this court is

bound to apply in this case (if any). But I cannot agree with my

colleagues in the majority that such a result in this case is supported by

a purportedly binding precedent-setting "paradigm shift" in statutory

interpretation, the existence of which the majority does not adequately

16 The majority in Hull avoided the ex post facto argument I

advanced in my dissenting opinion on the basis that it had not been

raised by Mr. Hull on appeal, 349 So. 3d at 464–65, even though Mr.

Hull had argued that his conduct should be governed by the version of

the statute in effect at the time of the alleged crime and not the later-

enacted version under the recent controversy rule. I rejected that stilted

and extreme application of the party presentation requirement (the rule

generally limiting appellate courts to reviewing for error only based on

the arguments raised by the parties). In this case there is no debate

about whether the ex post facto issue is before the court. However, by

the en banc majority's rationale, the constitutional protection that

prevents application of the amended version of the statute to Mr. Crose's

preamendment conduct in this case could not have been applied to Mr.

Hull—not because Mr. Hull did not explicitly raise it, but because Mr.

Hull's case was decided before "the advent of Ham and Conage," at a time

when, according to the majority's rationale, the use of the recent

controversy rule could still be justified as a constitutional "means of

clarifying intent" that had not yet become obsolete. For the reasons

explained herein, I do not share that view. The analysis that should have

afforded Mr. Hull relief from the violation of his constitutional rights

applies equally to Mr. Crose in this case.

76

support and, even if it could, was already in effect (but not applied)

under identical circumstances in Hull.

Opinion subject to revision prior to official publication.

77