author: PER CURIAM. WELLS, J., HARDING, Senior Justice,

text:
    COASTAL FLORIDA POLICE BENEVOLENT ASSOCIATION, INC., Petitioner, v. Phillip B. (Phil) WILLIAMS, etc., Respondent. Phillip B. (Phil) Williams, etc., Petitioner, v. Coastal Florida Police Benevolent Association, Inc., Respondent.
    Nos. SC00-1860, SC00-2072.
    Supreme Court of Florida.
    Jan. 30, 2003.

      G. “Hal” Johnson, Tallahassee, for Petitioner/Respondent.
    Phillip P. Quaschnick of Powers, Quaschnick, Tischler, Evans & Dietzen, Tallahassee; and Stephen H. Grimes of Holland & Knight LLP, Tallahassee, for Respondent/Petitioner.
    James G. Brown and Dorothy F. Green of Brown & Green, P.A., Orlando, for Palm Beach County Sheriffs Office, Amicus Curiae.
    William E. Powers, Jr., of Powers, Quaschnick, Tischler, Evans & Dietzen, Tallahassee, for the Florida Sheriffs’ Association, Amicus Curiae.
    Ellen Leonard, Tampa, for Cal Henderson, Sheriff of Hillsborough County, Amicus Curiae.
   PER CURIAM.

We have for review Williams v. Coastal Florida Police Benevolent Ass’n, 765 So.2d 908 (Fla. 5th DCA 2000), wherein the district court certified the following question to be of great public importance:

ARE DEPUTY SHERIFFS CATEGORICALLY EXCLUDED FROM HAVING COLLECTIVE BARGAINING RIGHTS UNDER CHAPTER 447?

Id. at 909. We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons stated below, we rephrase the question, and, as rephrased, we answer the certified question in the negative. We rephrase the question:

ARE DEPUTY SHERIFFS CATEGORICALLY EXCLUDED FROM HAVING COLLECTIVE BARGAINING RIGHTS UNDER THE FLORIDA CONSTITUTION?

We answer this question in the negative and hold that deputy sheriffs, like all other employees, are entitled to collective bargaining rights under the express provisions of the Florida Constitution.

PROCEEDINGS TO DATE

This case arose out of a petition filed before the Public Employees Relations Commission (PERC) by the Coastal Florida Police Benevolent Association, Inc. (CFPBA), seeking to represent certain public employees in the State of Florida for purposes of collective bargaining. PERC is the agency which oversees and regulates public sector collective bargaining in Florida. CFPBA filed a representation-certification petition seeking certification as the exclusive collective bargaining agent for employees of the Brevard County Sheriffs Office. The employees included deputy sheriffs in the positions of deputy, field training officer, corporal, and sergeant. After a preliminary investigation, PERC issued its “Notice of Sufficiency” finding that the CFPBA’s petition was sufficient to allow it to enforce the collective bargaining rights of the deputy sheriffs:

The Florida Supreme Court’s recent opinion in Service Employees International Union Local 16, AFL-CIO v. Public Employees Relations Commission, et al, No. SC 94427 [752 So.2d 569] (Fla. January 13, 2000), casts doubts as to the vitality of its prior decision in Murphy v. Mack, 358 So.2d 822 (Fla. 1978), holding that deputy sheriffs are not public employees. Therefore, we find this petition to represent deputy sheriffs for the purpose of collective bargaining sufficient in order to develop a record as to the deputies’ duties and responsibilities vis-a-vis the sheriff himself.

Subsequent to PERC’s Notice of Sufficiency, Sheriff Williams filed an application for a writ of prohibition with the Fifth District Court of Appeal, asserting that deputy sheriffs have no collective bargaining rights. After initially granting relief in part, the Fifth District reconsidered and denied prohibition. The Fifth District opined that this Court’s decision in Service Employees International Union, Local 16, AFL-CIO v. Public Employees Relations Commission, 752 So.2d 569 (Fla.2000), substantially undercut the rationale of Murphy v. Mack, 358 So.2d 822 (Fla.1978):

In Service Employees, the Florida Supreme Court took another look at the Murphy case. It said that the name “deputy” and the fact of “appointment” were meaningless distinctions in determining whether a person is entitled to collective bargaining rights under chapter 447. Rather, the statute sets forth two basic categories of persons who work for the public — the ordinary ones and the managerial ones. Only the managerial ones are not public employees for purposes of rights to collective bargaining.

Williams, 765 So.2d at 909. Based on this analysis, the Fifth District denied the petition for prohibition and certified the aforementioned question, which we have rephrased for purposes of this opinion.

ANALYSIS

In Murphy v. Mack, 358 So.2d 822 (Fla. 1978), the Court considered whether the county sheriff was a “public employer” and deputy sheriffs “public employees” under the Florida statutory scheme of collective bargaining. The Court held that the county sheriff was a public employer; however, it held that deputy sheriffs were not public employees. Id. at 824 (“[W]e find that the language employed by the Legislature in Chapter 447, Florida Statutes (1975), does not reveal a legislative intent to include appointed deputy sheriffs within the definition [of] ‘public employee.’ ”).

In Service Employees this Court was presented with a similar question certified by the Fifth District involving public employees who have historically been categorized as “deputies”:

Are deputy court clerks, unlike deputy sheriffs, public employees within the contemplation of section 447.203(3), Florida Statutes?

752 So.2d at 570. The Court answered affirmatively and held that deputy clerks were in fact public employees entitled to collective bargaining rights under section 447.203, Florida Statutes (1997). The Court acknowledged that in the past a “deputy” may have occupied a special place inasmuch as a “deputy functioned as the alter ego, so to speak, or second in command to the principal.” Id. at 572. In this respect, the Court noted, deputies were in fact managerial-level employees who could take charge in the principal’s absence. However, the Court found:

Times have changed and the public officials who once required one or two deputies to assist them in their tasks now might require a host of assistants. Further, the range of tasks performed by these workers has expanded and the tasks themselves have become specialized. For instance, a clerk of court today might employ a score or more skilled workers as bookkeepers, archivists, filing clerks, typists, and receptionists. In deference to tradition, such employees are often still called “deputies,” but their positions bear little resemblance to the deputies of old. As noted by the district court below, the deputies of today often “look surprisingly like other public employees.” Various public officials are currently authorized under Florida Statutes to appoint deputies — e.g., sheriffs, clerks of court, property appraisers, and tax collectors.

Id. (citation omitted) (footnotes omitted). In Service Employees, the Court further observed that “Murphy appears to have exalted form over substance in contravention of the plain language and broad purpose of the Act.” The Court also noted that the “appointed/employed” distinction was of little significance under chapter 447, Florida Statutes (1997), because the definition of “public employee” in section 447.203 itself drew no such distinction. The Court explained that there was simply no basis for excluding a “deputy” from the protection of chapter 447:

There are two basic categories of persons who work for the public: (1) employees in the ordinary sense of the word, and (2) managerial level employees (as well as various other specialized workers). Employees in the ordinary s.ense of the word are considered “public employees” under the Act and their right to collectively bargain is protected. Managerial level employees, on the other hand, are not considered “public employees” and their right to collectively bargain is not protected by the Act.

752 So.2d at 572. We ultimately concluded that it would not be appropriate to extend our prior ruling in Murphy to deputy clerks.

On the other hand, consistent with our holding in Murphy, we note that other statutory provisions reflect an apparent legislative intent to deny or control the right to extend collective bargaining to deputy sheriffs. First, section 30.071(1) states that chapter 30, Florida Statutes (2002), applies to all deputy sheriffs, except those who, by special act of the Legislature or local law, are granted rights greater than those provided in the chapter, including collective bargaining rights. By necessary implication, this evinces an intent that the Legislature has not otherwise granted the right to collective bargaining to all deputy sheriffs, but local entities may do so if they please. To the extent that is not sufficiently clear, section 30.071(2) unambiguously states, “This act does not grant to deputy sheriffs the right of collective bargaining.” In addition, section 112.535, Florida Statutes (2002), provides:

The provisions of chapter 93-19, Laws of Florida, shall not be construed to restrict or otherwise limit the discretion of the sheriff to take any disciplinary action, without limitation, against a deputy sheriff, including the demotion, reprimand, suspension, or dismissal thereof, nor to limit the right of the sheriff to appoint deputy sheriffs or to withdraw their appointment as provided in chapter 30. Neither shall the provisions of chapter 93-19, Laws of Florida, be construed to grant collective bargaining rights to deputy sheriffs or to provide them with a property interest or continued expectancy in their appointment as a deputy sheriff.

Id. (emphasis added.) It is important to note that the Murphy opinion considered whether “a sheriff is a ‘public employer’ and whether a deputy sheriff is a ‘public employee’ as such terms are utilized in Chapter 447, Florida Statutes (1975).” 358 So.2d at 823. The Murphy opinion did not consider any constitutional considerations associated with the determination of the status of deputy sheriffs.

Constitutional Construction

CFPBA asserts that the statutory provisions governing the collective bargaining rights of law enforcement employees are conflicting and inconsistent. For example, CFPBA asserts that all police officers in Florida doing the same work as deputy sheriffs have collective bargaining rights. CFPBA also asserts that the Florida statutory scheme is arbitrary and inconsistent in providing for bargaining rights to deputy sheriffs in some counties in Florida while denying such rights in other counties. The sheriff does not attempt to refute these claims except to assert that as to deputy sheriffs they reflect matters of legislative discretion.

The right of employees in Florida to collective bargaining is expressly provided for in the Florida Constitution. Accordingly, even assuming a legislative intent to deny collective bargaining rights to deputy sheriffs, the question remains as to the constitutionality of any such exclusion, an issue not addressed in Murphy. Article I, section 6, of the Florida Constitution provides:

Right to Work. — The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

Id. (emphasis supplied). This Court has deemed the right to collective bargaining to be of a fundamental character and has applied a strict scrutiny test to any action which tends to undermine this right. See, e.g., State v. Police Benevolent Ass’n, 613 So.2d 415, 423 (Fla.1992) (“[T]he compelling state interest test applies to coEective bargaining agreements_”). Further, this Court has recognized that, with the 1968 revision of the constitution, both private and public employees have the same broad rights to collective bargaining. See Dade County Teachers’ Ass’n v. Ryan, 225 So.2d 903, 905 (Fla.1969) (“We hold that with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6.”); see also Chiles v. State Employees Attorneys Guild, 734 So.2d 1030, 1033 (Fla.1999) (“The Legislature cannot, however, abridge public employees’ right to bargain collectively, absent a compelling state interest. ...”).

PLAIN MEANING

The rules which govern the construction of statutes are generally applicable to the construction of constitutional provisions. See State ex rel. McKay v. Keller, 140 Fla. 346, 191 So. 542, 545 (1939). Accordingly, the basic rule requiring that the intent of the framers and adopters be given effect equally controls in construing constitutional provisions. See State ex rel. Dade County v. Dickinson, 230 So.2d 130, 135 (Fla.1969). Furthermore, we have consistently held that in order to determine intent we must give effect to the plain meaning of the words actually used in the Constitution:

Any inquiry into the proper interpretation of a constitutional provision must begin with an examination of that provision’s expEcit language. If that language is clear, unambiguous, and addresses the matter in issue, then it must be enforced as written....
... We recognize the rule that constitutional language must be allowed to “speak for itself.” AppEcation of that rule, however, must be tempered by judicial deference to offsetting and equaEy constraining rules. We refer to two fundamental principles of constitutional adjudication. First, constitutions “receive a broader and more liberal construction than statutes.” Second, constitutional provisions should not be construed so as to defeat their underlying objectives.
Constitutions are “living documents,” not easily amended, which demand greater flexibility in interpretation than that required by legislatively enacted statutes. Consequently, courts are far less circumscribed in construing language in the area of constitutional interpretation than in the realm of statutory construction. When adjudicating constitutional issues, the principles, rather than the direct operation or literal meaning of the words used, measure the purpose and scope of a provision.

Fla. Soc’y of Ophthalmology v. Fla. Optometric Ass’n, 489 So.2d 1118, 1119 (Fla. 1986) (citations omitted). Hence, we have an obligation to provide “a broader and more liberal construction” of constitutional provisions, as well as being certain not to construe the provisions “so as to defeat their underlying objectives.”

The right to collective bargaining was first provided in article I, section 12 of the 1885 Florida Constitution:

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization, provided, that this clause shall not be construed to deny or abridge the right of employees by and through a labor organization to bargain collectively with their employer.

Id. The collective bargaining right was revisited in the 1968 constitution, and the revised provision provides:

The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

Art. I, § 6, Fla. Const. It is apparent to this Court that the plain meaning and use of the term “employees” was intended to be applied in its broadest sense, to include all employees, public and private, as recipients of the right to bargain collectively. That is, all employees who work for the government or for private business are equally entitled to collectively bargain with their employers. That is clearly the plain meaning of the word “employees” as used in the constitution.

Ultimately, the sheriff is urging this Court to find that in order for deputy sheriffs to have been included as “employees” in the constitution, there would have to have been a specific constitutional provision singling out deputy sheriffs as employees entitled to bargaining rights (i.e., “the right of employees, including deputy sheriffs”). Considering the simple and broad language used by the constitution and its plain meaning, we reject that suggested requirement as an unlikely and overly strained construction. Such a construction does not comport with our obligation to give the collective bargaining provisions a broad and liberal construction consistent with the underlying objectives of the provision.

Indeed, such a construction would require all kinds of employees, such as lawyers, deputy clerks, and others, to have been specifically listed, rather than being presumed to have been included in the comprehensive term “employees.” We conclude there is simply nothing ambiguous about the constitutional provision for the right of collective bargaining being extended to all employees, public and private. It would be hard to think of a broader, more inclusive phrase that could have been used than “employees.” The only limitation in the provision is on the right to strike by public employees.

LEGISLATIVE HISTORY

The plain and unambiguous meaning of the words used in the constitution means that we need not look at legislative history. However, as is often the case with statutory and constitutional provisions of that time, there is not much historical material on whether the revision commission deliberated on the inclusion or exclusion of specific categories of employees, such as deputy sheriffs, in the definition of employees. However, some limited history of the movement of the right to work provision through the Legislature after submission by the Florida Constitution Revision Commission (“Commission”), sheds some light on this determination. On November 10, 1966, the Commission proposed the following constitutional language:

Section 12. Right to work. — The right of persons to work shall not be denied or abridged on account of membership nor non-membership in any labor union or association. The right of employees, public or private, by and through a labor union or association to bargain collectively shall not be denied nor abridged. Public employees shall not have the right to strike.

Florida Constitution Revision Commission, A Draft of a Proposed Revised Constitution of Florida 3 (Nov. 10, 1966) (on file in the Florida Supreme Court Library) (emphasis added). Subsequent to submission by the Commission, the section was taken up by separate interim constitution revision committees of the house and the senate. The senate committee kept the Commission’s proposed revision substantially unchanged. However, the house committee made a substantial change in that its proposal limited the right to collective bargaining solely to private employees. The house committee version made the following alteration:

Section 6. Right to Work. — The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, — public—or—private,—by—and through-a-labor union or labor-organiza-tien private employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.

Fla. H.R. Jour. 6 (Spec. Sess. June 25, 1968). Thus, there were two separate versions of the section, the house version, limiting collective bargaining to private employees, and the senate version, granting collective bargaining rights to both private and public employees. Ultimately, the Conference Committee of the House and Senate voted to reject the house version and to accept and recommend the senate version granting the right to collectively bargain to all employees, the final result of which was the current version of the Right to Work provision of the constitution.

As shown by the chronology and history of the Right to Work provision, there was apparently ample deliberation as to whether public employees, as an entire class, were to be extended the right to collectively bargain. At the end of the day, it was decided that all public employees would be entitled to that right. Notably, no exception was made in the constitution to exclude special categories of employees such as deputies or lawyers.

COMPELLING STATE INTEREST

There is also no assertion here that the State has a compelling interest in depriving deputy sheriffs of the right to collective bargaining. Indeed, as noted above, all police officers and many deputy sheriffs have been exercising such rights throughout Florida for some time. The most recent case in which this Court has reviewed a statutory restriction on a public employee’s right to collective bargaining was in Chiles v. State Employees Attorneys Guild, 734 So.2d 1030, 1038 (Fla.1999), wherein we struck down a statutory attempt to deny collective bargaining rights to lawyers employed by government.

In Chiles, we addressed the constitutionality of section 447.203(3)(j), Florida Statutes (1997), which prohibited “ ‘[t]hose persons who by virtue of their positions of employment are regulated by the Florida Supreme Court’ from engaging in collective bargaining with their government employer.” 734 So.2d at 1031. This section was enacted as an exception to the definition of “public employee” in section 447.203(3). In support of maintaining this statutory exception, the State asserted the following as a compelling state interest:

This action by the Legislature should respond to the arguments recently presented to the Florida Supreme Court in which the parties questioned whether the exclusion of an exemption from collective bargaining for government lawyers was evidence of the Legislature’s intent to either waive or consent to “any conflicts with or alterations of the traditional attorney-client relationship” between governmental bodies and their lawyers. The Legislature is constitutionally empowered to provide the standards and guidelines for implementing the collective bargaining rights of public employees as provided in article I, section 6, Florida Constitution. Therefore, the Legislature has the authority to determine that the State has a compelling interest in excluding certain persons, including government lawyers, from the collective bargaining process in the same manner in which it has excluded other persons who have managerial, confidential or otherwise unique employment relationships with the State.
By excluding government lawyers from collective bargaining, the Legislature has determined that a necessity exists whereby government attorneys give complete confidentiality, fidelity and loyalty to a governmental body while conducting its legal affairs. This necessity aligns the attorney with the governmental body and acknowledges the mutual trust, exchanges of confidence, reliance on judgment and personal nature of the attorney-client relationship that would not exist if the attorney were able to continuously sue his or her client/employer to enforce the terms of a collective bargaining agreement.

Id. at 1032 (quoting Fla. H.R. Comm, on Empl. & Mgmt. Rel., HB 2281 (1994) Staff Analysis 3 (final April 11, 1994) (on file with comm.)). This Court rejected this argument and found the statute unconstitutional.

In our opinion, we reaffirmed the principle that the right to bargain collectively was a fundamental right and “[a] statute abridging the right of state employees to bargain collectively is consonant with the constitution only if it vindicates a compelling state interest by minimally necessary means.” Id. at 1033. Then, adopting the trial court’s analysis, the Court reasoned that while the State may have a compelling interest in preserving the lawyer-client relationship, there was no evidence that interest was endangered by collective bargaining:

The compelling state interest in retaining competent, professional attorneys does not support a finding of a compelling state interest in preventing any collective bargaining by state employed attorneys. The State presented no evidence to support the position that government employed attorneys would abandon their ethical obligation of confidentiality, fidelity and loyalty by becoming members of a labor union.

Id. at 1034. Based on our analysis in Chiles, and, to the extent that any provisions of the Florida Statutes purport to prohibit deputy sheriffs from engaging in collective bargaining, we conclude they are contrary to the plain provisions of Florida’s Constitution and that no compelling government interest has been demonstrated. Indeed, the sheriff concedes that the overwhelming majority of law enforcement employees in Florida enjoy collective bargaining rights.

Clearly, maintaining a traditional relationship such as that existing between a sheriff and a deputy sheriff does not meet the high standard of strict scrutiny and compelling state interest necessary to justify infringement of the right to bargain collectively. In fact, the reverence for this traditional relationship borders on the nostalgic, in light of the current circumstances surrounding that relationship as noted in Service Employees. As pointed out in Service Employees, a deputy sheriff appears to work for his or her sheriff in the same fashion that a municipal police officer works for his or her chief. See 752 So.2d at 573 n. 9. Yet, all police officers freely enjoy the right to collective bargaining. Certainly, if the State had to find less restrictive means to preserve the obviously important and unique attorney-client relationship between government lawyers and their employers, less restrictive means could be found to preserve the traditional relationship between sheriffs and their deputies without depriving the latter of the right to collective bargaining. Cf. Chiles, 734 So.2d at 1035 (“Even assuming some additional compartmentalization will be required, the administrative interest in avoiding compartmentalization must be viewed in light of the fundamental right to bargain collectively.”).

CONCLUSION

We must be ever vigilant in remembering that these are fundamental constitutional rights that are in question, and we must be careful before depriving an entire category of employees of those rights in the face of a provision giving those rights to all employees. As explained above, the right to collectively bargain is a fundamental right explicitly vested in all Florida employees by the Florida Constitution, and, therefore, any governmental action attempting to restrict the enjoyment thereof is subject to strict scrutiny. To the extent that the sheriff has failed to demonstrate why a deputy sheriff does not come within the ambit of the definition of an employee, and to the extent that the State has equally faded to articulate a compelling interest, outside of merely maintaining some traditional status between a sheriff and her deputies, a deputy sheriff may not be deprived of the constitutional right to collectively bargain. We answer the rephrased certified question in the negative and conclude that deputy sheriffs, like all other employees, have the right to collectively bargain.

Because we conclude that the Florida Constitution explicitly grants all employees the right to collective bargaining, including deputy sheriffs, we recede from any implication to the contrary in our opinion in Murphy, and reaffirm our decisions in Service Employees and Attorneys Guild. The decision of the district court of appeal is approved.

It is so ordered.

ANSTEAD, C.J., PARIENTE and QUINCE, JJ., and SHAW, Senior Justice, concur.

WELLS, J., dissents with an opinion, in which LEWIS, J., concurs.

HARDING, Senior Justice, dissents with an opinion, in which WELLS and LEWIS, JJ., concur.

WELLS, J.,

dissenting.

I join in Justice Harding’s dissent. I also dissent because I do not find that the majority has set out a basis upon which to recede from Murphy v. Mack, 358 So.2d 822 (Fla.1978). I do not believe that this present Court should change this law when neither the Legislature nor the Constitutional Revision Commission has acted to change the law since the decision was issued.

LEWIS, J., concurs.

HARDING, Senior Justice,

dissenting.

I respectfully dissent. By rephrasing the certified question from one pertaining to chapter 447 to one interpreting the Florida Constitution, the majority is completely changing the nature of this case. More importantly, the majority is exceeding the constitutional bounds of this Court’s jurisdictional limits. In the past, this Court has rephrased questions “in the interest of clarity”; in order to “reflect the issue presented”; and to “more accurately reflect the procedural posture and underlying facts of th[e] case.” But this Court has never rephrased a certified question for the purpose of turning a run-of-the-mill statutory construction case into a fall-blown constitutional interpretation case.

Both PERC and the district court below made their decisions pursuant to their interpretations of chapter 447; neither addressed the issue from a constitutional perspective. Moreover, this Court’s decisions in Service Employees, which the majority relies on to reach today’s holding, and Murphy, which the majority now recedes from, were primarily based on the Court’s interpretation of chapter 447, not article I, section 6 of the Florida Constitution.

This is a court of limited jurisdiction. In Pirelli Armstrong Tire Corp. v. Jensen, 777 So.2d 973, 974 (Fla.2001), this Court dismissed review of a case because the district court had certified a question without ruling on the question certified. We explained that our jurisdiction in certified question cases was limited to “any decision of a district court of appeal that passes upon a question certified by it to be of great public importance.” Id. (quoting art. V, § 3(b)(4), Fla. Const.) (emphasis added). By applying the reasoning of Jensen to the instant case, it follows that this Court can not both rephrase and answer a certified question if the rephrased question was not previously ruled upon by the district court below. For this reason, I would not rephrase the certified question in this case.

WELLS and LEWIS, JJ., concur.

      . Contemporaneous with this finding, PERC ordered a hearing to determine facts and issues in relation to representation and unit determination. PERC also ordered Sheriff Phillip B. Williams ("Sheriff Williams” or "the sheriff”) to provide the relevant list of employees and the relevant job classifications for purposes of inclusion in or exclusion from the unit.

      . Section 30.07, Florida Statutes (2002), states, "Sheriffs may appoint deputies to act under them who shall have the same power as the sheriff appointing them, and for the neglect and default of whom in the execution of their office the sheriff shall be responsible.” Section 30.071, Florida Statutes (2002), further provides that "[t]his act does not change the alter ego relationship which exists between a deputy sheriff and the appointing sheriff."

      . Dohnal v. Syndicated Offices Systems, 529 So.2d 267 (Fla.1988).

      . State v. Smith, 641 So.2d 849 (Fla.1994).

      . Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d 1012 (Fla.2000).

      . Serv. Employees Inti Union Local 16, AFL-CIO v. Pub. Employees Relations Comm’n, 752 So.2d 569 (Fla.2000).

      . Murphy v. Mack, 358 So.2d 822 (Fla.1978).


source: Caselaw Access Project

author: WELLS, J.

license: Public Domain

text:
    Winyatta BUTLER, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2465.
    Supreme Court of Florida.
    Jan. 30, 2003.

      Caroline E. Kravath, Florida Institutional Legal Services, Inc., Gainesville, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kellie A. Nielan and Pamela J. Koller, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   WELLS, J.

We have for review a decision of the Fifth District Court of Appeal on the following question, which the court certified to be of great public importance:

MAY A TRIAL COURT SENTENCE A DEFENDANT TO A TERM IN EXCESS OF THE STATUTORY MAXIMUM FOR AN OFFENSE COMMITTED AFTER OCTOBER 1, 1998, WHERE THE LOWEST PERMISSIBLE SENTENCE UNDER THE CODE EXCEEDS THE STATUTORY MAXIMUM?

Butler v. State, 774 So.2d 925, 927 (Fla. 5th DCA 2001). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative.

Petitioner Winyatta Butler pled guilty to possession of cocaine, possession of cannabis, driving with a suspended license, resisting arrest without violence, and driving under the influence. He was sentenced to 75.6 months of incarceration. The petitioner filed a motion under Florida Rule of Criminal Procedure 3.850, alleging that his sentence of 75.6 months exceeded the statutory maximum of five years for the third-degree felony of cocaine possession. The trial court denied the petitioner’s rale 3.850 motion, ruling that although the sentence imposed for possession of cocaine exceeded the statutory maximum, the sentence of 75.6 months was the lowest permissible sentence under the guidelines and therefore was legal.

On appeal, the district court affirmed the trial court’s denial of the petitioner’s rule 3.850 motion and agreed that the sentence was legally based on this Court’s statement in Maddox v. State, 760 So.2d 89, 101 n. 9 (Fla.2000), that “for those defendants who committed their crimes after October 1, 1998, section 921.0024(2), Florida Statutes (1999), provides that ‘if the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.’ ” The district court then recognized potential statutory conflict between two provisions of the Criminal Punishment Code: (1) section 921.002(l)(g), Florida Statutes (Supp. 1998), which does not authorize a court to impose a sentence in excess of the statutory maximum; and (2) section 921.0024(2), Florida Statutes (Supp.1998), which directs that “[i]f the lowest permissible sentence under the [Criminal Punishment Code] exceeds the statutory maximum sentence ..., the sentence required by the code must be imposed.” Due to this potential conflict, the district court certified the question that is now before this Court.

We agree with the district court that the petitioner’s sentence is legal, and we therefore uphold the district court’s affirmance of the denial of the petitioner’s rule 3.850 motion. We further conclude that there is no conflict between the statutes and therefore answer the certified question in the affirmative. Because the Legislature does not intend to enact purposeless or useless laws, see Sharer v. Hotel Corp. of America, 144 So.2d 813, 817 (Fla.1962), the primary rule of statutory interpretation is to harmonize related statutes so that each is given effect. See Carawan v. State, 515 So.2d 161, 168 (Fla. 1987). The two provisions of the Criminal Punishment Code can be harmonized.

Florida Rule of Criminal Procedure 3.704(d)(25) states in pertinent part:

The permissible range for sentencing must be the lowest permissible sentence up to and including the statutory maximum, as defined in section 775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively. However, any sentence to state prison must exceed 1 year. If the lowest permissible sentence under the Code exceeds the statutory maximum sentence as provided in section 775.082, the sentence required by the Code must be imposed.

(Emphasis added.) This rule harmonizes the two provisions. The first provision (section 921.002(l)(g)) applies to general sentencing, while the second provision (section 921.0024(2)) applies to those circumstances in which “the lowest permissible sentence under the Code exceeds the statutory maximum.” By this rule, application of section 921.0024(2) is an exception to the general provision of section 921.002(l)(g) that sentences cannot exceed the statutory maximum. We do, however, hold that when section 921.0024(2) applies so that the statutory maximum sentence as provided in section 775.082, Florida Statutes (2002), is exceeded by the lowest permissible sentence under the code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.

Because section 921.002(l)(g) and section 921.0024(2) were amended at the same time and deal with the same general subject, they should be read as in pari materia. See State ex rel. Sch. Bd. of Martin County v. Dep’t of Education, 317 So.2d 68, 72-73 (Fla.1975). It is presumed that statutes are passed with the knowledge of existing statutes, so courts must favor a construction that gives effect to both statutes rather than construe one statute as being meaningless or repealed by implication. Palm Harbor Special Fire Control Dish v. Kelly, 516 So.2d 249, 251-52 (Fla.1987). Thus, the district court correctly followed our decision in Maddox v. State, 760 So.2d 89 (Fla.2000):

We recognize that pursuant to section 921.001(5), Florida Statutes (1993), the sentencing guidelines may have, for some cases, provided statutory authority for the trial court to impose a higher sentence than allowed by the “statutory maximum.” Similarly, for those defendants who committed their crimes after October 1, 1998, section 921.002^(2), Florida Statutes (1999), provides that “if the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in s. 775.082, the sentence required by the code must be imposed.” Prior to the enactment of these statutes, a court could not impose a guidelines sentence outside the statutory limits.

Id. at 101 n. 9 (citation omitted) (emphasis added).

Accordingly, we answer the certified question in the affirmative and find that the petitioner’s sentence is legal. We therefore approve the decision below affirming the denial of the petitioner’s rule 3.850 motion. We reject the petitioner’s second issue, a constitutional attack based on our construction of section 921.0024(2), and hold that section 921.0024(2) is not vague. See State v. Mitro, 700 So.2d 643, 645 (Fla.1997); Trushin v. State, 425 So.2d 1126, 1130 (Fla.1982).

It is so ordered.

ANSTEAD, C.J., PAEIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

      . Butler does not contest the trial court's finding that the lowest permissible sentence authorized by his sentencing score sheet was 75.6 months.


author: PER CURIAM.

text:
    John Christopher STABILE, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-2053.
    Supreme Court of Florida.
    Jan. 30, 2003.
    James Dickson Crock, Daytona Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Kellie A. Nielan and Wesley Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
   PER CURIAM.

This case is before the Court on the same issue certified for resolution and answered by this Court in Knight v. State, 808 So.2d 210 (Fla.2002). In Knight, we answered the certified question in the affirmative and approved the district court’s resolution of the issue. Because the district court’s holding here is consistent with our holding in Knight, we approve the district court’s decision and decline to address the issues not certified.

It is so ordered.

ANSTEAD, C.J., WELLS,

PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

      . We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

      . Stabile v. State, 790 So.2d 1235 (Fla. 5th DCA 2001).


author: WARNER, J. STEVENSON and HAZOURI, JJ.,

text:
    LOST TREE VILLAGE CORPORATION, Appellant, v. CITY OF VERO BEACH and the Town of Indian River Shores, Appellees.
    No. 4D01-3954.
    District Court of Appeal of Florida, Fourth District.
    Nov. 13, 2002.
    Rehearing Denied Dec. 23, 2002.

      Jack J. Aiello and Ernest A. Cox, III of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.
    John K. Shubin and Jeffrey S. Bass of Shubin & Bass, P.A., Miami, and Julie B. Schutta, Vero Beach, for appellee City of Vero Beach.
    Kenneth G. Oertel and Jeffrey Brown of Oertel, Hoffman, Fernandez & Cole, P.A., Tallahassee, for appellee Town of Indian River Shores.
   WARNER, J.

Lost Tree Village Corporation appeals a final judgment dismissing its eleven count complaint alleging inverse condemnation of its property by the City of Vero Beach and The Town of Indian River Shores. Lost Tree’s property consists of two groups of islands in the Indian River Lagoon. The trial court concluded that none of the claims were ripe for adjudication because Lost Tree had not obtained a final determination of the uses that would be permitted on the islands. While Lost Tree’s claims alleging a facial taking of its property were properly dismissed, albeit not on ripeness grounds, we hold that its claims alleging an “as-applied” taking of its Inner Islands were ripe for adjudication, although those claims alleging a taking of its Outer Islands are not ripe. We therefore hold that the trial court erred in dismissing the claims related to the Inner Islands.

The Lost Tree Islands consist of “islands and submerged lands in the Indian River Lagoon ... located partially within the Town and partially within the City.” The islands are divided into two groups: the Inner Islands are located entirely within the Town, while the Outer Islands are located partially within the Town and partially within the City. Lost Tree owns the submerged land between and among the Inner Islands and between and among the Outer Islands, but the Trustees of the Internal Improvement Trust Fund (“IITF”) own the submerged land between the Inner and Outer Islands, called Gifford Cut. Presently, the Lost Tree Islands are undeveloped and have no bridge access. A basic map of the islands and surrounding area is attached hereto as an appendix.

Lost Tree claims the City and Town have, through the combined force of their individual respective regulations, precluded any economically viable use of the Lost Tree Islands. Lost Tree sought to develop single family homes on the Inner Islands within the Town. To access those homes, it applied to build a bridge from a road located within the City to the islands. However, when the City denied Lost Tree’s application, and the Town would not allow the homes to be built without bridge access, Lost Tree brought the instant takings claims against both municipalities.

The City Regulations

In the late 1980s, Lost Tree met with the City to discuss its plans to develop the Islands. The City’s existing zoning regulations permitted Lost Tree to build five units per acre. Around that same time, the City had approved an application to develop Prang Island, another undeveloped and unbridged island in the Indian River Lagoon. Unfortunately for Lost Tree, the Prang Island approval prompted the City’s Mayor to announce the City’s intention to purchase and prohibit further development of any undeveloped islands, especially the Lost Tree Islands.

Consistent with that announcement, in December 1989, the City established a new zoning district, R-1AAA. R-1AAA restricted density to one unit per two acres, made single family residential use a conditional use, severely restricted fill or regrading of property, required an environmental assessment, and required at least 80% of each site to be open space. In July 1990, the City rezoned the portion of the Lost Tree Islands within the City to R-1AAA. Also in early 1990, the City enacted the following “no bridgehead” ordinance:

No property shall be used as a bridgehead property for an island that is undeveloped as of the date of this ordinance when said use shall have its public purpose the connection with any public right-of-way in the city of Vero Beach. Further, if said property is not within the City’s jurisdiction but is immediately contiguous thereto, the city shall prohibit, by erection of barriers, any connection with the city right-of-way.

This ordinance effectively precludes bridge access from the City’s main 'barrier island to the Inner Islands located within the Town.

Around that same time, the City decided to adopt a new Comprehensive Plan. The Department of Community Affairs (“DCA”) petitioned the Division of Administrative Hearings (“DOAH”) to determine whether this new Plan complied with chapter 163, Florida Statutes and the Florida Administrative Code. Lost Tree intervened. The DCA and the City eventually settled in July 1992 after the City agreed to certain remedial amendments. As amended, the City’s new Plan included, inter alia, a provision similar to the “no bridgehead” ordinance and another provision restricting density on the islands even further than R-1AAA zoning to one unit every five acres. Lost Tree challenged the DCA’s determination that the amended Plan complied with applicable law. In May 2001, the DCA entered its final order, finding the Plan in compliance. According to Lost Tree, the rezoning, no bridgehead ordinance, and the new Plan were all specifically designed to preclude development of the Lost Tree Islands. The City Mayor allegedly made the following statements regarding development of the islands:

I’ll stop it, I hope. We’re playing hardball, because we don’t want those islands developed. What I’m hoping to do is stall development of them until we can find some mechanism to purchase them. I’m not denying this bridgehead ordinance is forestalling action until we can find a way to purchase these undeveloped islands.

Other members of the City government made similar statements in public and to the Governor and Cabinet.

The Town’s Regulations

In December 1989, Lost Tree submitted a preliminary application to the Town, seeking approval to develop the Inner Islands under the existing regulations allowing one unit per acre. Due in part to organized citizen opposition to developing the Lost Tree Islands, the Town, similar to the City, set out to purchase the islands or otherwise minimize development. Town officials had allegedly stated the Town’s intention to purchase the Lost Tree Islands to prevent their development. As a result, the Town denied Lost Tree’s application. The Town then adopted a new zoning law, allowing one unit per five acres.

In May 1990, the Town adopted a new Comprehensive Plan. The new Plan limited development of “environmentally sensitive islands,” such as the Lost Tree Islands, to one unit per five acres and prohibited development on unbridged islands within the Indian River Lagoon unless road and bridge permits were approved by the appropriate agencies. Lost Tree petitioned the DCA, challenging the Plan’s compliance with applicable law. The Administrative Law Judge (“ALJ”) who heard the case recommended that the Town’s Plan was not in compliance with the state’s Comprehensive Plan, because its prohibition on developing unbridged islands was “in effect, an absolute bar to development.” The DCA rejected the ALJ’s recommendation and found the Town’s Plan in compliance.

Lost Tree’s Applications to Develop

Despite the City’s “no bridgehead” ordinance, Lost Tree contended, “the only route to bridge the Inner Islands [in Town] is to connect them to the mainland via Silver Shores Road, which is located in the City.” Accordingly, it submitted an application to the City to build a bridge to the Inner Islands from its property at the end of Silver Shores Road. The City granted the application, provided it rescinded the “no bridgehead” ordinance and other related provisions in the City’s Comprehensive Plan. That recision has not occurred.

In November 1998, Lost Tree submitted a separate application to the Town for preliminary plat approval of a fifty-seven unit development on ninety acres of the Inner Islands. However, without the needed bridge, the Town rejected the application in January 1999. According to Lost Tree, the Town’s “no development without bridges” provision combined with the City’s “no bridgehead” provision, precludes any uses of the Lost Tree Islands within the Town.

Court Action

In May 1998, Lost Tree filed suit against the City. The suit was abated, pending the DCA proceedings wherein Lost Tree was challenging many of the provisions at issue in the complaint. After the DCA entered its final order in May 2001, finding the City’s Comprehensive Plan in compliance (the DCA also found the Town’s Plan in compliance), the court lifted the abatement. Lost Tree stated that it did not intend to appeal the DCA’s compliance determination.

In June 2001, Lost Tree filed an amended complaint, adding the Town as a defendant. The complaint alleges that Lost Tree’s claims are ripe for review and, based on statements by City and Town officials, any further attempts to apply for development approval would be futile.

Counts I — III are titled “per se” claims. As to the Inner Islands, Count I claims the combined effect of the City and Town regulations preclude all economically viable use. Specifically, the City prohibits building a bridge at the only possible location, Silver Shores Road, and the Town prohibits any development without bridge access. As to the Outer Islands within the Town, because Lost Tree owns neither the submerged land between the Outer Islands and the mainland nor the submerged land between the Outer and Inner Islands, Count II claims that the Town’s “no development without bridges” provision precludes all development of the Outer Islands within the Town. As to the Outer Islands within the City, Count III claims that the City’s R-1AAA zoning provision, with its density, grading, and open space regulations, precludes all economically viable use of those islands.

Counts IV, V, and VI constitute “balancing of factors” or “as-applied” takings claims against both municipalities collectively (count IV) and against each respectively (count V: City, count VI: Town). All three counts allege that the applicable provisions precluding development did not exist when Lost Tree bought the land or initially applied to develop. Because the provisions “do not substantially advance a legitimate government interest,” “curtail Lost Tree’s reasonable, investment-backed expectations,” and “have been arbitrarily and capriciously applied only to Lost Tree’s property,” the three counts allege the municipalities’ provisions effect unconstitutional takings.

Count VTI alleges a vehicular access takings claim against the City. Specifically, the City’s “no bridgehead” provision deprives Lost Tree of its sole access because the only means of vehicular access to the islands is building a bridge from Silver Shores Road in the City.

Counts VIII-X allege other constitutional claims. Counts VIII and IX allege arbitrary and capricious substantive due process claims. Count VIII alleges the City and Town enacted regulations to decrease Lost Tree Islands’ value in order to accomplish their stated goal of acquiring the islands. Count IX alleges the provisions, as applied to the islands, “constitute discriminatory spot zoning targeted directly to frustrate Lost Tree’s efforts to develop its islands” and “decrease the cost of public acquisition of the Lost Tree Islands.” Count X alleges an equal protection claim, in that the City and Town singled out Lost Tree’s proposed development without a legitimate governmental purpose for their disparate treatment. Finally, Count XI alleges a temporary takings claim, asserting that if the provisions are repealed or declared unconstitutional, Lost Tree should be compensated for the time they were in effect.

The City moved to dismiss, and in the alternative for summary judgment, on the following five grounds: failure to state a cause of action, the as-applied claims were not ripe, failure to exhaust administrative remedies, laches, and statute of limitations. The Town also moved to dismiss, and in the alternative to strike allegations, including ripeness.

The trial court granted both defendants’ motions and dismissed the case, stating:

Despite alleged public comments, preliminary decisions and legal positions taken by Defendants’ officials, staff, boards, committees and representatives, Plaintiff has failed to allege (and admittedly cannot allege) that it has presented a final procedurally proper application to develop its subject property to either Defendant which has been finally denied. Thus, Plaintiffs claims are premature and it is unable to validly allege, claim, suspect or doubt that any of its constitutional or statutory rights have been violated or subject to consideration against these Defendants at this time.

Lost Tree moved for rehearing, asserting that its as-applied takings claims as to the Inner Islands were ripe because it had submitted proper applications. It applied to construct a bridge from Silver Shores Road to the Inner Islands, which the City effectively denied by conditioning approval on a condition it would never satisfy. The Town denied its preliminary applications to develop the Inner Islands unless Lost Tree obtained approval from the City to construct bridge access. Lost Tree admitted that it has not made an as-applied claim as to the Outer Islands.

Lost Tree also maintained on rehearing that neither its facial takings claims (counts II — III and V-VII and portions of counts I, IV, and XI) nor its facial substantive due process and equal protection claims were subject to the ripeness requirement. Finally, Lost Tree urged that, at a minimum, it should be allowed to amend its complaint. The court denied rehearing, prompting this appeal.

Lost Tree asserts the trial court erred in dismissing its complaint for three reasons: (1) it ripened its as-applied takings claims by submitting sufficient applications and obtaining a final development decision; (2) even if it had not, further efforts to obtain a final decision would be futile; and (3) certain claims are not subject to the ripeness requirement. The City answers that the facts alleged in the complaint fail to demonstrate the claims are ripe. The Town similarly answers that the facts pled do not support the conclusory allegation that the Town’s actions preclude all allowable uses for the islands. Based on the facts of this case, some claims were properly dismissed, but other claims should have been allowed to proceed.

Combined Liability of City and Town

Lost Tree’s takings claims, both facial and applied, rely upon the combined effect of the City’s “no bridgehead” ordinance with the Town’s “no development without bridge” ordinance, which effect deprives it from using its property in an economically viable manner. The City and Town each argues that because their respective regulations do not solely deprive Lost Tree from using its property, neither can be liable for payment of compensation. We reject that reasoning.

The Constitutions of the United States and the State of Florida both provide that no private property shall be taken except for a public purpose and with just compensation. U.S. Const, amend. V; Art. X, § 6, Fla. Const. Both Constitutional provisions emphasize the taking of the property, not the governmental unit responsible for the taking. As was stated in Ciampetti v. United States, 18 Cl.Ct. 548, 556 (Cl.Ct.1989), “[assuming that no economically viable use remains for the property, the Constitution could not countenance a circumstance in which there was no fifth amendment remedy merely because two government entities acting jointly or severally caused a taking.” Multi-government action, of which the combined effect deprives a landowner, constitutes a taking: “As a general principle, two levels of government should not be able to avoid responsibility for a taking of property merely because neither of their actions, considered individually, would unconstitutionally infringe upon private property rights.... Government decisions are not produced in a vacuum.”

Charles E. Harris, Environmental Regulations, Zoning and Withheld Municipal Services: Takings of Property by Multi-Government Action, 25 U. Fla. L.Rev. 635, 683 (1973). See also Anhoco Corp. v. Dade County, 144 So.2d 793, 797 (Fla.1962) (holding multiple governmental units engaged in a cooperative effort to obtain property can all be hable for the taking of property). While there may be issues of damage apportionment in such a case, that does not bar the claim and permit the taking without compensation. The Constitution entitles the landowner to a remedy.

Standard of Review

In Taylor v. City of Riviera Beach, 801 So.2d 259 (Fla. 4th DCA 2001), this court addressed a regulatory takings claim dismissed on ripeness grounds. It set forth the standard of review as follows:

In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader. “Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review.”

Id. at 262 (citations omitted) (quoting Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 495 (Fla. 4th DCA 2001)); see also Brandon v. Pinellas County, 141 So.2d 278, 279 (Fla. 2d DCA 1962) (noting mere opinions or conclusions unsupported by specific facts are not presumed true at motion to dismiss stage). Thus, this court should review Lost Tree’s allegations de novo to determine whether it pled valid and ripe claims.

Takings and Ripeness Jurisprudence

The Supreme Court concisely set out the development of regulatory takings jurisprudence in Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001):

In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393[, 43 S.Ct. 158, 67 L.Ed. 322] (1922), the Court recognized that there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs. In Justice Holmes’ well-known, if less than self-defining, formulation, “while property may .be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking.” Id. at 415[, 43 S.Ct. 158].
Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, see infra at 2463-2464, that a regulation which “denies all economically beneficial or productive use of land” mil require compensation under the Takings Clause. Lucas [v. S. Carolina Coastal Council], 505 U.S. [1003], at 1015, 112 S.Ct. 2886[, 120 L.Ed.2d 798]; see also id., at 1035, 112 S.Ct. 2886 (KENNEDY, J., concurring); Agins v. City of Tiburon, 447 U.S. 255, 261, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980). Where a regulation places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Penn Central [Transp. Co. v. City of New York, 438 U.S. 104], supra, at 124, 98 S.Ct. 2646[, 57 L.Ed.2d 631].

(Emphasis added).

Important to a takings claim analysis is the requirement that the claim be “ripe” before a taking can be declared. Again, the Palazzolo court explained:

In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), the Court explained the requirement that a takings claim must be ripe. The Court held that a takings claim challenging the application of land-use regulations is not ripe unless “the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Id., at 186,105 S.Ct. 3108. A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of “all economically beneficial use” of the property, see Lucas, supra, at 1015, 112 S.Ct. 2886, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred, see Penn Central, supra, at 124, 98 S.Ct. 2646. These matters cannot be resolved in definitive terms until a court knows “the extent of permitted development” on the land in question. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351, 106 S.Ct. 2561, 91 L.Ed.2d 285 (1986).

Palazzolo, 533 U.S. 606, 618, 121 S.Ct. 2448 (emphasis added). The ripeness inquiry thus centers on whether the landowner “obtained a final decision from the [regulatory agency] determining the permitted use for the land.” Id.; accord Taylor v. Vill. of N. Palm Beach, 659 So.2d 1167, 1173 (Fla. 4th DCA 1995) (“Florida courts have adopted the federal ripeness policy”). This “final determination requires at least one meaningful application.” Taylor, 659 So.2d at 1173.

In practice, the ripeness doctrine has precluded takings claims when the regulatory agency denies a landowner’s application to develop a substantial project, and the landowner never applies for a less intensive use. See, e.g., MacDonald, Sommer & Frates, 477 U.S. at 352-53, 106 S.Ct. 2561; Williamson County Reg’l Planning Comm’n, 473 U.S. at 187-88, 105 S.Ct. 3108. Conversely, when a regulatory takings claim is ripe, “it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty.” Palazzolo, 533 U.S. at 620, 121 S.Ct. 2448. Thus, in Palazzolo, even though the landowner’s applications did not explore every possible development use of the property, his claim was ripe because the regulatory agency’s decisions on the applications submitted left no doubt as to the permitted use of the property. See id. at 621, 121 S.Ct. 2448. The Court explained:

Williamson County’s final decision requirement responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer. Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 738, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997). While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. The case is quite unlike those upon which respondents place principal reliance, which arose when an owner challenged a land-use authority’s denial of a substantial project, leaving doubt whether a more modest submission or an application for a variance would be accepted. See MacDonald, supra, at 342, 106 S.Ct. 2561 (denial of 159-home residential subdivision); Williamson County, 473 U.S., at 182, 105 S.Ct. 3108 (476-unit subdivision); cf. Agins v. City of Tiburon, 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106 (1980) (case not ripe because no plan to develop was submitted).
These cases stand for the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. Government authorities, of course, may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision.

Id. at 620-21, 121 S.Ct. 2448 (citations omitted).

As the Palazzolo court noted, a “futility exception” exists to the ripeness requirement that we have similarly acknowledged in City of Riviera Beach v. Shillingburg, 659 So.2d 1174, 1180 (Fla. 4th DCA 1995). There we explained:

A limited exception to the ripeness requirement might exist where, by virtue of the past history, repeated submissions would be futile. Further, where the governmental agency effectively concedes that any other development would be impermissible, this can negate the requirement of pursuing further administrative remedies and the governmental action is effectively treated as a final decision.

Id. at 1181 (citation omitted); accord Pa-lazzolo, 533 U.S. at 622, 121 S.Ct. 2448 (“Ripeness doctrine does not require a landowner to submit applications for their own sake.”). For example, in Taylor v. Riviera Beach we held the landowner’s taking claim was ripe where it would have been futile to seek an amendment to a comprehensive plan after the same had already been considered and rejected. 801 So.2d at 263.

Based upon the foregoing, we proceed to determine whether the trial court properly concluded Lost Tree’s claims were unripe, requiring it to dismiss all of them. The ripeness requirement, however, does not apply to facial takings, as the mere enactment of the regulation constitutes the taking of all economic value to the land. See Glisson v. Alachua County, 558 So.2d 1030, 1036 (Fla. 1st DCA 1990). Therefore, we first analyze those counts Lost Tree claims to be facial takings to determine whether they were required to be ripe to proceed.

Facial Takings Claims

Counts I through III, titled the “per se” takings claims against the City and Town, allege that the regulations deprive Lost Tree of all, or substantially all, of the economic value of its property. According to Lost Tree’s initial brief, it intended these counts to be causes of action for a facial taking. A facial taking occurs when the “mere enactment” of the regulation constitutes a taking of all economically viable use of a party’s land. See Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,107 S.Ct. 1232, 94 L.Ed.2d 472 (1987). In Taylor v. Village of North Palm Beach, Judge (now Justice) Pariente succinctly stated the difference between facial or “per se” takings claims and “as-applied” or balancing of interest takings claims:

Generally, takings challenges fall broadly into two categories — facial takings claims and as-applied claims. In a facial takings claim, the landowner maintains that the mere enactment of the regulation constitutes a taking of all affected property without adequate procedures to provide prompt, just compensation. In an as-applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact of the regulation on a particular parcel of property.

659 So.2d at 1170-71 (citations omitted). As the Supreme Court recently emphasized in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 1483, 152 L.Ed.2d 517 (2002), the deprivation of economic value required for a facial takings claim is:

[Ljimited to “the extraordinary circumstance when no productive or economically beneficial use of the land is permitted.” [Lucas], 505 U.S. at 1017[, 112 S.Ct. 2886]. The emphasis on the word “no” in the text of the [Lucas] opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. Id. at 1019, n. 8[, 112 S.Ct. 2886]. Anything less than a “complete elimination of value,” or a “total loss,” the Court acknowledged, would require the kind of analysis applied in Penn Central. Lucas, 505 U.S. at 1019-20, n. 8[, 112 S.Ct. 2886].

(Underlined emphasis added) (footnote omitted).

Here, the allegations state that all or substantially all of the economic value of the property has been taken. Thus, according to Tahoe an allegation that substantially all of the value is taken may, in and of itself, require a ripeness analysis. However, because the substance of Lost Tree’s allegations suggest a deprivation of all economic value we consider the allegations sufficiently pled the necessary predicate for a facial takings claim.

Nevertheless, we conclude that the claim does not state a facial takings claim because the mere enactment of the regulations does not preclude all development in all cases. Rather, only when it is applied to the concrete controversy in this case can it constitute a taking. That is, development of the islands in the Town is prevented only if bridge access is obtained through a bridgehead in the City. It does not prohibit development if a bridgehead is established in the Town. The regulations therefore do not prohibit all development of the Inner Islands.

With respect to the Outer Islands within the Town, Lost Tree claims all development is precluded on those islands where the Town’s regulations prohibit development without bridges and the Board of the Internal Improvement Fund will not permit a bridge over Gifford Cut to the Outer Islands. This too fails as a facial claim. Lost Tree’s claim does not allege any facts to demonstrate that a bridge over Gifford Cut is the only location to construct a bridge to the Outer Islands.

Likewise, Lost Tree has failed to allege a facial claim as to the Outer Islands within the City. The complaint alleges that the R-1AAA zoning and “no bridgehead” provisions preclude all economically viable use of that property. However, the Outer Islands within the City are not subject to the Town’s “no development without bridges” provision, allowing development consistent with the R-1AAA zoning laws without bridge access. While such zoning is admittedly restrictive, development is still permitted. Because no facial taking has been, or can be, shown as to those islands in counts I through III, dismissal was proper.

As-Applied Takings Claims

In order to succeed in stating an as-applied takings claim, Lost Tree must show that it obtained a final decision on the permitted use of the land, which requires at least one meaningful application, see Taylor v. Village of N. Palm Beach, 659 So.2d at 1173, or that it is futile to submit additional applications in light of past history or the expressly stated view of the appropriate governmental entities. See, generally, Palazzolo, 533 U.S. at 622, 121 S.Ct. 2448; Taylor v. Riviera Beach, 801 So.2d at 263.

At the outset, Lost Tree admits that it made no application for development of the Outer Islands within the City. While Lost Tree complains that the density and open space requirements severely limit development, until the “extent of permitted development” is determined by application to the City, an evaluation of what has been taken cannot be made. Palazzo-lo, 533 U.S. at 618, 121 S.Ct. 2448. Therefore, an as-applied challenge is not ripe. Moreover, although the City does not allow a bridgehead within its boundaries to provide access to the islands, there is nothing in the record to suggest that some development will not be permitted on the Outer Island with access by ferry or other boat.

With respect to the Inner Islands within the Town, Lost Tree alleges that the combined effect of the City’s and Town’s regulations effectively preclude any possible development on these islands because the only possible bridgehead to the Islands is within the City, which has barred bridges, but the Town’s regulation requires bridge access to the islands. Lost Tree submitted applications to develop the Inner Islands. Those applications proposed a fifty-seven home development on the Inner Islands, despite the zoning allowing only eighteen homes. At the same time, Lost Tree was contesting the Town’s Comprehensive Plan, which prohibits island development without bridge access. That challenge was unsuccessful, as the DCA approved the Plan.

Lost Tree’s quandary is similar to what occurred to the land owner in Palazzolo, motivating the Supreme Court to solidify the futility exception in regulatory takings law. Palazzollo, the landowner, had submitted multiple applications for permits to fill and develop certain coastal wetlands, and with each successive application, Pa-lazzolo sought a less intense use. Despite the existence of less intensive uses that he had not yet applied for, Palazzolo brought an action against the Rhode Island Coastal Resources Management Council alleging its denial of his applications constituted a taking. Consequently, the Rhode Island Supreme Court held, inter alia, that his claim was not ripe. See Palazzolo, 533 U.S. at 616, 121 S.Ct. 2448. The Supreme Court disagreed, stating:

With respect to the wetlands on petitioner’s property, the Council’s decisions make plain that the agency interpreted its regulations to bar petitioner from engaging in any filling or development activity on the wetlands, a fact reinforced by the Attorney General’s forthright responses to our questioning during oral argument in this case. The rulings of the Council interpreting the regulations at issue, and the briefs, arguments, and candid statements by counsel for both sides, leave no doubt on this point: On the wetlands there can be no fill for any ordinary land use. There can be no fill for its own sake; no fill for a beach club, either rustic or upscale; no fill for a subdivision; no fill for any likely or foreseeable use. And with no fill there can be no structures and no development on the wetlands. Further permit applications were not necessary to establish this point.

Id. at 621, 121 S.Ct. 2448 (citations omitted) (emphasis added).

As evidence of the futile nature of making further efforts or applications in this case, Lost Tree relies upon the municipal provisions that effectively prohibit any development (the no bridgehead and no development without a bridge provisions), the municipalities steadfast defense of those provisions, and the municipal officials’ express statements that they will prohibit development. Similar to Palazzo-lo, the unique circumstances in this case demonstrate that further applications to develop the Inner Islands would be futile.

Just as in Taylor v. Riviera Beach, the landowner was not required to apply for an amendment to the appropriate comprehensive plan to ripen a takings claim because Riviera Beach had already considered and rejected such an amendment, making the application futile. 801 So.2d 259, 263. See also Gardens Country Club v. Palm Beach County, 712 So.2d 398, 401 (Fla. 4th DCA 1998) (County’s continued refusal to certify application under existing comprehensive plan while requiring that all developments comply with proposed revised comprehensive plan show futility of further applications under existing plan, making case ripe for review).

This case presents an even stronger basis for application of the futility exception than Taylor v. Riviera Beach or Gardens Country Club. Here, Lost Tree intervened in the DCA proceedings, to challenge the City’s and Town’s efforts to include provisions in their respective Comprehensive Plans which effectively precluded developing the Inner Islands. Both the City and Town steadfastly defended those provisions in the DCA for nearly a decade. It is now beyond the point of mere speculation that both entities would refuse to remove those provisions. Accordingly, it would be futile to require Lost Tree to apply for amendments to the respective Plans to remove those provisions.

Despite its apparent position against developing the islands, the City asserts that Lost Tree cannot invoke the futility exception when it has never sought to amend the City’s Comprehensive Plan and remove the “no bridgehead” provision. This begs the question Lost Tree has invoked the futility exception precisely because seeking to amend the Plan would be futile. Regardless, Lost Tree did challenge efforts to include that provision in the Plan for the last decade and should not be required to apply to remove it now.

As for any claim that it would be futile to apply to develop the Outer Islands, either within the City or Town, such a claim must fail. In Tinnerman v. Palm Beach County, 641 So.2d 523 (Fla. 4th DCA 1994), this court held that “[futility is not established until at least one meaningful application has been filed.” 641 So.2d 523, 526. Because Lost Tree has not even formulated a proposed plan to develop the Outer Islands to submit to the City or Town, any as-applied claims as to the Outer Islands have not ripened.

In sum, we conclude that the complaint states a cause of action based upon the futility exception to the ripeness requirement. Specifically, the ripeness doctrine does not preclude review of Lost Tree’s as-applied regulatory takings claims as to the Inner Islands and Outer Islands within the Town. The extent of permitted use of the Inner Islands is now fully known as a result of Lost Tree’s applications, its failed challenges in the DCA proceedings, and the City’s and Town’s positions before the DCA and Cabinet. However, the as-applied claims as to the Outer Islands are not ripe.

Taking of Access

Finally, Lost Tree’s complaint alleges the City took its means of vehicular access to the Islands by enacting its no-bridgehead regulation where the only means of vehicular access to the Islands is the Silver Shore Road in the City (count VII). It relies upon Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989), in which the supreme court explained:

There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one’s property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one’s access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the property, it can be said that the property owner’s right of access was substantially diminished. The loss of the most convenient access is not compensable where other suitable access continues to exist.

(Emphasis added). Here, Lost Tree specifically alleges that “Silver Shores Road is the only means of vehicular access to the Lost Tree Islands”; and because the City’s “no bridgehead” provision precludes building a bridge from Silver Shores Road to the islands, the City has “deprived Lost Tree of all ability to access its property.” Assuming as we must the truth of the factual assertions of the complaint on a motion to dismiss, Lost Tree has alleged a valid claim that its access to the islands has been “substantially diminished.” Although the City argues that the complaint alleges it issued a permit to build the bridge subject to rescission of the “no bridgehead” ordinance, given Lost Tree’s unavailing efforts to challenge the City’s “no bridgehead” provisions in its Comprehensive Plan for more than ten years, we conclude that, on its face, the complaint sufficiently alleges the futility exception to the ripeness requirement. We therefore reverse the dismissal of Lost Tree’s taking of access claim for further proceedings.

We affirm without further analysis the dismissal of the remaining counts alleging arbitrary and capricious substantive due process claims and equal protection claims. They do not allege facial claims, and Lost Tree has failed to advance any argument on appeal as to how they should proceed as as-applied claims.

The City raises several other judicial doctrines that it claims require affirmance of the dismissal of Lost Tree’s complaint. These doctrines, however, require us to consider factors beyond the four corners of the complaint. We therefore decline to address them without prejudice to raising these issues on remand in the trial court.

In sum, we hold that Lost Tree’s complaint states causes of actions for as-applied takings claims of the Inner Islands but not the Outer Islands and for a taking of access claim. We hold that it does not state a cause of action for a facial takings claim or the other claims raised. We therefore reverse and remand for further proceedings consistent with this opinion.

STEVENSON and HAZOURI, JJ.,

concur.

APPENDIX

      . A separate action between Lost Tree and the IITF concerning title to some of the submerged land around the Lost Tree Islands is ongoing. After being remanded for further proceedings in Board of Trustees of the Internal Improvement Trust Fund v. Lost Tree Village Corp'., 805 So.2d 22 (Fla. 4th DCA 2001), the trial court ordered a new survey to determine the exact boundaries of the islands.


author: PER CURIAM. PER CURIAM.

text:
    Louis George CARRES, Appellant, v. Margaret GOOD-EARNEST, Appellee.
    No. 4D01-4951.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Order Granting Rehearing March 5, 2003.
    Louis G. Carres, West Palm Beach, pro se.
    Helene Hvizd Morris, West Palm Beach, for appellee.
   PER CURIAM.

Pro se appellant, Louis Jorge Car-res, the former husband, timely appeals the order of the circuit court of the Fifteenth Judicial Circuit, modifying the final judgment of dissolution, awarding child support, attorney’s fees and custody of the parties’ child to appellee, Margaret Good-Earnest. We have carefully examined the issues raised on appeal and find no error. In particular, we note that both the petition for modification and the trial court’s order adequately state substantial changed circumstances which are involuntary and permanent warranting child support beyond age eighteen. See § 748.07(2), Fla. Stat. (2000); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978)(stating that although the legal duty of a parent to support a child generally ceases at the age of majority, there is a continuing duty on a parent to care for an adult child suffering from physical or mental disabilities); see also Miller v. Smart, 636 So.2d 836 (Fla. 5th DCA 1994)(explain-ing that a child’s support payments may be extended beyond age eighteen where the child is dependent due to mental or physical incapacity that began prior to age eighteen).

The husband also attempts to challenge that portion of the trial court’s order which determined former wife’s entitlement to attorney’s fees. This court has declined to exercise jurisdiction over orders such as this one, which determine entitlement to attorney’s fees, but not amount. See Rit-chie v. Ritchie, 687 So.2d 1358 (Fla. 4th DCA 1997); Carlson v. Carlson, 696 So.2d 1332 (Fla. 4th DCA 1997). Accordingly, we dismiss that portion of the appeal directed to entitlement.

AFFIRMED in part, DISMISSED in part.

WARNER, STEVENSON and KLEIN, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing. In this appeal, former husband challenged, inter alia, that portion of the trial court’s order determining former wife’s entitlement to attorney’s fees. In the initial opinion filed on November 20, 2002, this court dismissed that portion of the appeal and declined to exercise jurisdiction over the issue of entitlement to attorney’s fees since the trial court had not determined the amount. See Carlson v. Carlson, 696 So.2d 1332 (Fla. 4th DCA 1997); Ritchie v. Ritchie, 687 So.2d 1358 (Fla. 4th DCA 1997). Former husband filed a motion for rehearing on December 5, 2002, and for the first time, apprised this court that the trial court had issued an order on May 17, 2002, determining the amount of attorney’s fees.

Despite former husband’s neglect in advising this court of the trial court’s order, we find that the judgment did ripen as to the entitlement issue during the course of the appeal; therefore, we have jurisdiction to determine that issue. See Widom v. Widom, 679 So.2d 74 (Fla. 4th DCA 1996). Upon review, the judgment on appeal is affirmed in all respects. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

AFFIRMED.

WARNER, STEVENSON and KLEIN, JJ., concur.

      . Appellant has not provided a transcript of the hearing below. Thus, our review is limited to any error of law that is apparent on the face of the judgment. See Sullivan v. Sullivan, 668 So.2d 329 (Fla. 4th DCA 1996); Bartolottav. Bartolotta, 687 So.2d 1385, 1386 (Fla. 4th DCA), review denied, 697 So.2d 509 (Fla. 1997).

      . When former wife filed her answer brief on April 8, 2002, she argued that the issue of entitlement was not ripe for review because no order setting amount had been issued. Former husband filed a reply brief on May 3, 2002, but did not even acknowledge the ripeness issue. Following the entry of the trial court's order on May 17, 2002, former husband did not seek to supplement the record on appeal and file a copy of that order with this court. It was only after this court had already filed its initial opinion that former husband, in his December 5, 2002 motion for rehearing, advised this court that the trial court had entered the order setting the amount of fees.


author: PER CURIAM. POLSTON, J.,

text:
    Billy Joe PALMER, Appellant, v. STATE of Florida, Appellee.
    No. 1DOO-4209.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.
    Rehearing Denied March 5, 2003.
    Nancy A. Daniels, Public Defender and Leonard Holton, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his conviction for a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1997). The information alleges two alternative theories regarding the appellant’s actions, one of which constitutes the crime of sexual battery. The general verdict of guilt entered by the jury does not differentiate between the two theories. This court has previously held, “one cannot be convicted of a lewd and lascivious act upon a child under 12 years of age for conduct that ... constitutes the crime of sexual battery .... ” Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995); see also Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999). The majority’s construction of the statute in Jozens is, in our view, questionable, and moreover, appears to contravene the legislative intent as construed by State v. Hightower, 509 So.2d 1078 (Fla.1987). Nevertheless, because the holding in Jozens remains intact, we are constrained to follow that case. The Legislature has now extensively amended section 800.04, and it does not appear that the result this court reached in Jozens could be repeated. See Ch. 99-201, § 6, Laws of Fla. Because the defendant in this case may have been convicted on a theory that is incorrect as a matter of law, we must reverse and remand for a new trial.

KAHN and PADOVANO, JJ., concur.

POLSTON, J., dissents with opinion.

POLSTON, J.,

dissents with opinion.

Appellant Billy Joe Palmer was charged and convicted of a lewd and lascivious act upon a child in violation of section 800.04, Florida Statutes (1997). Appellant was the victim’s little league baseball coach. The information charged that:

BILLY JOE PALMER, between and including the dates of March 1, 1998, and November 1, 1998, in the County and State aforesaid, did unlawfully handle, fondle or make an assault upon a child under the age of sixteen (16) years, to-wit: [ ], age 9, in a lewd and lascivious manner, by oral and/or digital manipulation of the penis of [] and by penile penetration of the anus of [ ], in violation of Section 800.04, Florida Statutes.

Appellant was not charged, tried, or convicted for sexual battery.

Appellant argues that he was charged with a nonexistent crime, therefore the trial court erred in denying his motion for judgment of acquittal. Appellant argues that some of the factual allegations against him, if true, would constitute the crime of sexual battery, and therefore cannot be charged as a lewd and lascivious act upon a child. Because Appellant was not charged with the crime of sexual battery, and the Florida Legislature intended that lewd and lascivious acts should include acts that would constitute sexual battery, I disagree with Appellant and would affirm.

/.

Section 800.04, Florida Statutes (1997) states:

Lewd, lascivious, or indecent assault or act upon or in presence of child. — A person who:
(1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;
(2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;
(8) Commits an act defined as sexual battery under s. 794.011(l)(h) upon any child under the age of 16 years; or
(4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years,
without committing the crime of sexual battery, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Neither the victim’s lack of chastity nor, the victim’s consent is a defense to the crime proscribed by this section. A mother’s breastfeeding of her baby does not under any circumstances violate this section. (Emphasis added).

In 1984, the Florida Legislature added what is currently section 800.04(3), and revised the language in the latter part of section 800.04 as follows: “without committing the crime of the intent ■■■to-commit sexual battery....” Ch. 84-86, § 5, at 264-65, Laws of Fla. In making these changes, the Legislature stated its intent in the preamble to chapter 84-86: “WHEREAS, the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery, without regard either to the victim’s consent or of the victim’s prior chastity.” Ch. 84-86 at 261, Laws of Fla. (emphasis added). Appellant argues that because he is accused of committing acts that may be defined as sexual battery, he cannot be guilty of lewd and lascivious acts. This is contrary to the Legislature’s intent — it specifically said that lewd and lascivious acts upon children include acts defined as sexual battery.

In 1990, the Florida Legislature added Section 800.04(2), to prohibit, inter alia, actual sexual intercourse with a child under the age of 16. Ch. 90-120, § 1, at 404, Laws of Fla. Appellant’s argument that the factual allegations constituting sexual battery cannot be charged as a lewd and lascivious act upon a child is contrary to the purpose of chapter 84-86 and to the plain language of the statute.

Moreover, if the statute were interpreted as Appellant suggests, the reference in section 800.04(2) to actual sexual intercourse as a lewd and lascivious act would be rendered meaningless. See United Specialties of America v. Department of Revenue, 786 So.2d 1210, 1213 (Fla. 5th DCA 2001)(stating that “a fundamental rule of statutory interpretation is that the courts should avoid a construction that would render part of a statute meaningless. Whenever possible, courts should give effect to all statutory provisions and construe them in harmony with one another. This impl[e]ments the general rule of statutory construction that the Legislature does not intend to enact purposeless and therefore useless legislation.”).

II.

In State v. Hightower, 509 So.2d 1078 (Fla.1987), the Court explained that chapter 84-86 was “passed to eliminate the anomalous interpretation that one could commit the conduct defined as sexual battery upon a person between the ages of twelve and sixteen and yet remain unpunished because of circumstances which would prevent conviction of the crime of sexual battery.” 509 So.2d at 1079. Although the discussion in Hightower had to do with the victim’s age, the principle of law is applicable to this case.

Appellant is not charged with a separate count of sexual battery. I cannot rule that Appellant has committed the crime of sexual battery when he has not even been charged with the crime. See State v. Bloom, 497 So.2d 2, 3 (Fla.l986)(ruling that under Florida’s Constitution, “the decision to charge and prosecute is an executive responsibility, and the state attorney has complete discretion in deciding whether and how to prosecute”). Accordingly, the phrase “without committing the crime of sexual battery” within section 800.04 is not applicable to this case.

Appellant argues that he could commit the conduct defined as sexual battery and yet remain unpunished because he was not charged with the crime of sexual battery. Because the Legislature specifically intended for that not to occur, Hightower, 509 So.2d at 1079, I reject Appellant’s argument. See State v. Anderson, 764 So.2d 848 (Fla. 3d DCA 2000)(ruling that the “cardinal rule of statutory construction is that a statute should be construed to give effect to the intention the legislature expressed in the statute,” and noting that for “a court to hold otherwise would make the obvious mandate of the legislature subservient to the discretion of the court”).

The cases cited by Appellant, Jozens v. State, 649 So.2d 322 (Fla. 1st DCA 1995) and Beck v. State, 732 So.2d 427 (Fla. 1st DCA 1999), are not applicable. Jozens was charged and convicted of committing a sexual battery (Count I), and of a lewd and lascivious act “by committing a sexual battery” (Count II). Jozens, 649 So.2d at 322. Because the State used the phrase “by committing a sexual battery upon said child,” in charging Jozens, and section 800.04 defines lewd and lascivious acts “without committing the crime of sexual battery,” the court concluded that count II charged Jozens with a nonexistent crime. Id. at 324. However, Appellant was not charged with violating section 800.04 with the phrase “by committing a sexual battery.”

In Beck, the court could not determine from the general verdict whether the jury convicted the defendant for conduct constituting the crime of sexual battery. In this case, I need not, and could not, reach such a determination because Appellant was only charged with violating the lewd and lascivious statute.

In conclusion, I would hold that Appellant was not charged and convicted of a nonexistent crime. Therefore, I respectfully dissent.

      . An argument very similar to Appellant's was rejected under the predecessor language in the statute. See Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978)(holding that “a defendant may not escape punishment for the offense upon the basis that his mental attitude or intention was actually to commit the higher crime of involuntary sexual battery,” quoting Matavav. State, 358 So.2d 1116 (Fla. 3d DCA 1978)).

      . Had the Legislature intended the statute to bar conviction for the conduct described in the information when perpetrated on children under the age of 12, it could have limited the applicability of section 800.04 to prohibit sexual acts against children between the ages of 12 and 16 years of age. Instead, the plain language of the statute clearly manifests the legislature's intent to protect all children “under the age of 16” from sexual exploitation by adults.

      . In interpreting legislative intent, courts must consider the statute as a whole as well as the evil to be corrected. State v. Anderson, 764 So.2d 848, 849 (Fla. 3d DCA 2000). The evil contemplated by section 800.04 is to prevent persons, inter alia, from engaging in sexual intercourse with children.


author: PLEUS, J.

text:
    Andre FRISON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3061.
    District Court of Appeal of Florida, Fifth District.
    Jan. 3, 2003.
    Rehearing Denied Feb. 24, 2003.
    Andre Frison, Raiford, pro se.
    No Appearance for Appellee.
   PLEUS, J.

Andre Frison seeks review of the denial of his petition for writ of habeas corpus filed in the circuit court. The issue raised by Frison in his petition is identical to the issue raised in two prior Rule 3.800 motions. The denial of those motions were affirmed by this court. Accordingly, Fri-son’s petition is successive. See Heilmann v. State, 832 So.2d 834 (Fla. 5th DCA 2002).

AFFIRMED.

GRIFFIN, J., and COBB, W., Senior Judge, concur.