author: LEWIS, C.J.

text:
    S AND T BUILDERS, Petitioner, v. GLOBE PROPERTIES, INC., Respondent.
    No. SC05-2045.
    Supreme Court of Florida.
    Nov. 16, 2006.

      Randall L. Gilbert and Ronald E. Kaufman of the Law Office of Randall L. Gilbert, P.A., Miami, FL, for Petitioner.
    Guy M. Shir and Patrick Dervishi of Kahan, Shir and Associates, Boca Raton, FL, for Respondent.
   LEWIS, C.J.

We have for review the decision in S & T Builders v. Globe Properties, Inc., 909 So.2d 375 (Fla. 4th DCA 2005), in which the Fourth District Court of Appeal certified conflict with the decision of the Third District Court of Appeal in Wagner v. Birdman, 460 So.2d 463 (Fla. 3d DCA 1984). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we approve the decision in S&T.

FACTS AND PROCEDURAL BACKGROUND

S and T Builders (S & T) filed an amended complaint against Globe Properties (Globe) for foreclosure of an equitable lien. S&T also filed and recorded a Notice of Lis Pendens. In response, Globe filed a “Motion to Dissolve Lis Pen-dens or Alternatively to Require the Posting of a Bond,” requesting that the trial court require S & T to post a bond in an amount equal to, at a minimum, the cost of the project. The trial court granted Globe’s motion and, in setting the bond amount, included an additional $30,000 for anticipated attorney’s fees incurred by Globe in the event the lis pendens filed by S&T was unjustified.

S&T petitioned the Fourth District for a writ of certiorari, arguing that the trial court departed from the essential requirements of law by ordering S & T to post a lis pendens bond without first conducting an evidentiary hearing. S&T further asserted that the trial court abused its discretion in increasing the bond to cover attorney’s fees because such fees are not recoverable in equitable lien claims. The Fourth District granted S & T’s petition in part, concluding that the trial court departed from the essential requirements of law by ordering S & T to post a lis pen-dens bond without first conducting an evi-dentiary hearing to determine the amount of the bond. See S & T Builders v. Globe Props., Inc., 909 So.2d 375, 376 (Fla. 4th DCA 2005). However, the Fourth District held that the trial court properly added attorney’s fees to the amount of the bond because “[although, generally, fees may not be recoverable in equitable lien claims, there are different concerns regarding damages for wrongful filing of a lis pen-dens.” Id.

The Fourth District granted S & T’s motion to certify conflict with Wagner v. Birdman, 460 So.2d 463 (Fla. 3d DCA 1984), wherein the Third District held that there is no statutory authority for the award of attorney’s fees in discharging a lis pendens. See S & T, 909 So.2d at 377.

ANALYSIS

We have previously stated that “[i]t is an elemental principle of law in this State that attorney’s fees may be awarded a prevailing party only under three circumstances, viz: (1) where authorized by contract; (2) where authorized by a constitutional legislative enactment; and (3) where awarded for services performed by an attorney in creating or bringing into the court a fund or other property.” Kittel v. Kittel, 210 So.2d 1, 3 (Fla.1967). Having reviewed the Florida Statutes and applicable case law, we conclude that the award of attorney’s fees incurred in discharging a lis pendens is statutorily authorized.

The provision of the Florida Statutes governing lis pendens states, in pertinent part:

When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

§ 48.23(3), Fla. Stat. (2005) (emphasis supplied). Thus, if a court is authorized to take certain actions with regard to injunctions, those actions would be similarly authorized in a lis pendens proceeding.

Florida Rule of Civil Procedure 1.610 controls the granting of temporary injunctions and provides, in pertinent part:

(b) Bond. No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.

Fla. R. Civ. P. 1.610(b). We have interpreted the statutory reference to injunctions in section 48.23(3) of the Florida Statutes to authorize a trial court to require the posting of a bond because a notice of lis pendens “will often prevent the property holder from selling or mortgaging the property.” Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 917 (Fla.1996). Thus, “[t]he bond requirement ... is a vehicle for protecting the property holders just as the lis pendens protects the plaintiff and third parties.” Chiusolo v. Kennedy, 614 So.2d 491, 493 (Fla.1993). In setting the amount of a bond, we have determined that “[t]he amount should bear a reasonable relationship to the amount of damages which the property-holder defendant demonstrates will likely result if it is later determined that the notice of lis pendens was unjustified.” Little Arch Creek, 675 So.2d at 918 n. 2.

With regard to the award of damages after the dissolution of an injunction, section 60.07 of the Florida Statutes (2005) provides:

In injunction actions, on dissolution, the court may hear evidence and assess damages to which a defendant may be entitled under any injunction bond, eliminating the necessity for an action on the injunction bond if no party has requested a jury trial on damages.

§ 60.07, Fla. Stat. (2005). We have held with respect to attorney’s fees specifically that “a dissolution of an injunction upon the merits operates as an adjudication that it was improperly issued,” and “a reasonable attorney’s fee incurred in procuring the dissolution of an injunction is an element of damages covered by the surety bond.” Nat’l Sur. Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24, 25-26 (1931). In an early case, we explained our rationale for allowing a party to recover the attorney’s fees incurred in procuring the dissolution of an injunction:

[T]he temporary injunction is an extraordinary remedy. Unlike the usual course of law, which “proceeds upon inquiry and only condemns after a hearing,” it is often ex parte and condemns temporarily before a hearing. It seems just and right that where a party asks the interposition of the power of the courts, in advance of a trial of the merits of the cause, to deprive the defendant of some right or privilege claimed by him, even though temporarily, that if on investigation it is found that the plaintiff had no just right either in the law or the facts to justify him in asking and obtaining from the court such a harsh and drastic exercise of its authority, that he should indemnify the defendant in the language of his bond for “all damages he might sustain,” and that reasonable counsel fees necessary to the recovering of such injunction are properly a part of his damage.

Wittich v. O’Neal, 22 Fla. 592, 598-99 (1886).

Since the attorney’s fees incurred in obtaining the dissolution of an injunction are recoverable from a surety bond, we conclude that section 48.23 of the Florida Statutes similarly permits a recovery of the attorney’s fees incurred in obtaining a discharge of a lis pendens. See § 48.23(3), Fla. Stat. (2005). Indeed, relying on this Court’s holding in Willy s-Overland, the Second District has held that such attorney’s fees are recoverable damages in a proceeding to recover on a lis pendens bond. See Saporito v. Madras, 576 So.2d 1342, 1345 (Fla. 5th DCA 1991); see also Haisfield v. ACP Fla. Holdings, Inc., 629 So.2d 963, 967 (Fla. 4th DCA 1993) (trial court properly awarded attorney’s fees incurred in removing lis pendens (citing Sa-porito )); Town of Davie v. Sloan, 566 So.2d 938, 939 (Fla. 4th DCA 1990) (“Implicit in the trial court’s ruling [dissolving an injunction] is that this injunction was wrongfully issued, which thus gives rise to attorney’s fees and costs as ... damages.”).

Although attorney’s fees in actions for dissolution of injunctions are recoverable as damages, we have held that the damages recoverable for wrongfully obtaining an injunction are limited to the amount of the injunction bond. See Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1019 (Fla.1989). In so holding, we noted that “[l]imiting liability to bond amount ... provides an orderly step-by-step procedure whereby all parties can be continually apprised of the consequences of their actions.” Id. at 1021. Since an award of damages is limited to the amount of the injunction bond, and attorney’s fees are recoverable from that bond, it logically follows that a trial court possesses the discretion to include foreseeable attorney’s fees in determining the amount of the bond. See generally Wil- lys-Overland, 138 So. at 26. Therefore, pursuant to the authorizing language in section 48.23 of the Florida Statutes, we conclude a trial court is similarly authorized to include attorney’s fees that foresee-ably may be incurred in discharging a lis pendens in a lis pendens bond. See § 48.23(3), Fla. Stat. (2005) (providing that a court “may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions”).

CONCLUSION

In conclusion, we hold that a trial court may include attorney’s fees that may foreseeably be incurred in obtaining a discharge of a lis pendens in a lis pendens bond. Accordingly, we approve the Fourth District’s decision in S & T Builders v. Globe Properties, Inc., 909 So.2d 375 (Fla. 4th DCA 2005), and we disapprove the Third District’s decision in Wagner v. Birdman, 460 So.2d 463 (Fla. 3d DCA 1984), to the extent that it conflicts with this opinion.

It is so ordered.

WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

      . The purpose of a notice of lis pendens is “to alert creditors, prospective purchasers and others to the fact that the title to a particular piece of real property is involved in litigation.” Am. Legion Cmty. Club v. Diamond, 561 So.2d 268, 269 n. 2 (Fla. 1990).

      . After the Fourth District remanded the case, the trial court held an evidentiary hearing and again included attorney's fees in the amount of the bond that it ordered S & T to post.

      . None of the parties disputes that S & T's lis pendens is not founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, Florida Statutes.

      . In Price v. Tyler, 890 So.2d 246 (Fla.2004), we disapproved the decision in Saporito to the extent it could be read to permit the award of attorney’s fees as general compensatory damages or costs in either an action to quiet title or a declaratory action. See 890 So.2d at 253. While the Fifth District in Saporito did conclude that attorney's fees were awardable in such actions, it also held that attorney's ises incurred in removing a lis pendens are recoverable. See Saporito, 576 So.2d at 1345. Since our decision in Price did not involve a lis pendens or an injunction, and we disapproved Saporito only "to the extent it conflicts with our analysis here,” see 890 So.2d at 248, the Fifth District's holding with regard to the award of attorney’s fees in lis pendens proceedings remains as controlling authority.


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    P. Dewitt CASON, etc., et al., Petitioners, v. FLORIDA DEPARTMENT OF MANAGEMENT SERVICES, Respondent.
    No. SC05-1484.
    Supreme Court of Florida.
    Nov. 16, 2006.

      George T. Reeves of Davis, Schnitker, Reeves and Browning, P.A., Madison, FL, Andrew J. Decker, IV of the Law Office of Andrew J. Decker, III, P.A., Live Oak, FL, and Laura Beth Faragasso of Henry, Buchanan, Hudson, Súber and Carter, P.A., Tallahassee, FL, for Petitioners.
    Benjamin K. Phipps of The Phipps Firm, Tallahassee, FL, S. Austin Peele of Darby, Peele, Bowdoin, and Payne, Lake City, FL, and Anthony W. Garcia, Assistant General Counsel, Department of Management Services, Tallahassee, FL, for Respondents.
    Charles J. Crist, Jr., Attorney General, Christopher M. Rise, Solicitor General, Louis Hubener, Chief Deputy Solicitor General, and Christine M. Guard, Assistant General Counsel, Tallahassee, FL, on behalf of the State of Florida, as Amicus Curiae.
   PARIENTE, J.

In State Department of Management Services v. Cason, 909 So.2d 378 (Fla. 1st DCA 2005), the First District Court of Appeal certified the following as a question of great public importance:

DO THE JURISDICTIONAL NON-CLAIM PROVISIONS OF SECTION 194.171, FLORIDA STATUTES, APPLY TO BAR A CLAIM OF THE STATE THAT ASSERTS AN ASSESSMENT IS VOID BECAUSE IT WAS MADE ON PROPERTY IMMUNE FROM AD VALOREM TAXATION?

Id. at 382. In ruling on and certifying this question, the First District vested us with jurisdiction. See art. V, § 3(b)(4), Fla. Const. We agree with the First District that because of its sovereign immunity from ad valorem taxation, the State is not a “taxpayer” subject to the sixty-day jurisdictional nonclaim provisions of section 194.171. We therefore approve the First District’s decision in this case.

FACTS AND PROCEDURAL HISTORY

This case concerns property in Columbia County, Florida, which, according to the complaint filed in July 2000, is owned by the State and used to operate a 350-bed youthful offender prison, the Lake City Correctional Facility. As a result of nonpayment of ad valorem taxes on the property for the 1996 and 1997 tax years, the tax collector for Columbia County sold two tax certificates for the taxes due. The latter of these certificates, which had a face value of $132,313.84, was issued to Charlie Ottinger, Betty Ottinger, Gina Ot-tinger, and Valerie Ottinger (collectively referred to as the Ottingers).

The Ottingers applied for a tax deed on the property. After learning of the tax deed application, the Florida Department of Management Services (DMS) filed a complaint in circuit court seeking to enjoin the sale of the property at public auction. The complaint alleged that the State owned the property and was using it for a governmental purpose, rendering the 1996 and 1997 tax year assessments void based on the State’s sovereign immunity from taxation. According to the complaint, the sale of the property through a tax deed would cause irreparable harm to the guards and employees of the facility, the youthful offenders housed there, and the juvenile justice system.

The Ottingers moved for summary judgment, asserting that the failure to challenge the tax assessments within sixty days after the assessments were certified for collection as required by section 194.171(2), Florida Statutes (2006), created a jurisdictional bar to the action to enjoin the tax deed sale. DMS argued that section 194.171(2) was inapplicable because the State’s immunity from taxation rendered any ad valorem tax assessment on the property void. The trial court granted summary judgment in favor of the Otting-ers. The court concluded that it lacked jurisdiction over the suit to enjoin the tax deed sale because the complaint was untimely under section 194.171(2). The trial court did not decide whether the property is immune from ad valorem taxation.

On appeal, the First District reversed and held that the jurisdictional bar in section 194.171 does not apply to a claim by the State contesting a tax assessment based on an assertion of sovereign immunity. See Cason, 909 So.2d at 381-82. In reaching this conclusion, the First District determined that decisions by this Court broadly applying section 194.171 to actions by private property owners contesting assessments should not be extended to property owned by the state and federal governments that is immune from taxation. Id. at 381. The First District also presumed that the Legislature was aware of court decisions recognizing the State’s immunity from taxation when it enacted section 194.171, and found no language in the statute reflecting an intent to waive that immunity and classify the State as a taxpayer subject to the same jurisdictional requirements as private property owners. Id. at 381-82. However, because of uncertainty caused by language in this Court’s opinions construing the statute, the First District certified the issue to this Court as a question of great public importance. Id.

ANALYSIS

The certified question asks whether the provisions of section 194.171 apply when the State is the owner of property that is immune from taxation. Our review of the First District decision addressing this issue of statutory interpretation is de novo. See B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1255 (Fla.2004). Because the certified question calls upon us to construe the statute in light of the State’s immunity from ad valorem taxation, we first turn to the concept of sovereign immunity in the context of property taxation.

I. Sovereign Immunity from Taxation

It is well settled that the State is immune from taxation. See Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 255 (Fla.2005); Dickinson v. City of Tallahassee, 325 So.2d 1, 3 (Fla.1975). We have explained that “[precedent and logic both dictate that the sovereign’s general freedom from taxation derives from an ‘immunity,’ not from an ‘exemption.’ ” Dickinson, 325 So.2d at 3. Further, we have observed that the immunity of State-owned lands from taxation “is not dependent upon statutory or constitutional provisions but rests upon broad grounds of fundamentals in government.” State ex rel. Charlotte County v. Alford, 107 So.2d 27, 29 (Fla.1958). Thus, in Dickinson we cited with approval Orlando Utilities Commission v. Milligan, 229 So.2d 262 (Fla. 4th DCA 1969), in which the Fourth District Court of Appeal clarified the distinction between an exemption and immunity:

Exemption presupposes the existence of a power to tax whereas immunity connotes the absence of that power. The state and its political subdivisions, like a county, are immune from taxation since there is no power to tax them.

325 So.2d at 3 (quoting Milligan, 229 So.2d at 264); see also City of Gainesville, 918 So.2d at 255.

Despite the State’s immunity, “within constitutional limits, the Legislature may provide for the taxation of lands or other property of the State.” Alford, 107 So.2d at 29. However, the authority to tax the State cannot be inferred. Such authority must be manifested by “clear and direct expression of the State’s intention to subject itself to” the tax. Dickinson, 325 So.2d at 4.

II. Section 194.171, Florida Statutes (2006)

We next examine the statute at issue in this case, which governs challenges to tax assessments. Section 194.171 is part of a “comprehensive statutory scheme for counties to assess and collect taxes simultaneously with procedures for taxpayer challenges to tax assessments.” Ward v. Brown, 894 So.2d 811, 814 (Fla.2004).

Section 194.171 provides:
(1) The circuit courts have original jurisdiction at law of all matters relating to property taxation. Venue is in the county where the property is located, except that venue shall be in Leon County when the property is assessed pursuant to s. 193.085(4).
(2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2), or after 60 days from the date a decision is rendered concerning such assessment by the value adjustment board if a petition contesting the assessment had not received final action by the value adjustment board prior to extension of the roll under s. 197.323.
(3) Before an action to contest a tax assessment may be brought, the taxpayer shall pay to the collector not less than the amount of the tax which the taxpayer admits in good faith to be owing. The collector shall issue a receipt for the payment, and the receipt shall be filed with the complaint. Notwithstanding the provisions of chapter 197, payment of the taxes the taxpayer admits to be due and owing and the timely filing of an action pursuant to this section shall suspend all procedures for the collection of taxes prior to final disposition of the action.
(4) Payment of a tax shall not be deemed an admission that the tax was due and shall not prejudice the right to bring a timely action as provided in subsection (2) to challenge such tax and seek a refund.
(5) No action to contest a tax assessment may be maintained, and any such action shall be dismissed, unless all taxes on the property assessed in years after the action is brought, which the taxpayer in good faith admits to be owing, are paid before they become delinquent.
(6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both subsections (2) and (3) have been met. A court shall lose jurisdiction of a case when the taxpayer has failed to comply with the requirements of subsection (5).

We have classified this as a jurisdictional statute of nonclaim, which means that failure to meet its requirements deprives the circuit court of jurisdiction to hear the case. See Markham v. Neptune Hollywood Beach Club, 527 So.2d 814, 815 (Fla.1988). In Markham, we concluded that section 194.171 applied to an action by condominium associations and developers challenging, on due process and equal protection grounds, the constitutionality of a statute governing ad valorem taxation of fee time-share property. 527 So.2d at 814. In addition to categorizing section 194.171 as a jurisdictional statute of non-claim rather than a statute of limitations, we rejected the argument that the statute applies only to “voidable” assessments and not also to those that are being challenged as “void.” Id. at 815.

More recently, in Ward, we rejected an assertion by leaseholders of county property that because they were contesting the classification of the property rather than the tax assessment, their lawsuit opposing ad valorem taxation was governed by the general civil statute of limitations rather than section 194.171. 894 So.2d at 813. It was in this context, an action by lessees of governmental property, that we stated that section 194.171 applies “regardless of the legal basis of the challenge.” Id. at 812. We explained that strict compliance with the sixty-day jurisdictional nonclaim provision is necessary to ensure that the counties continue to receive revenue during taxpayer disputes:

The law in Florida provides for a system for tax assessment challenges so that counties can perpetuate revenue even though taxpayers may dispute their obligations. Importantly, this scheme provides counties with the ability to collect revenue during the pen-dency of taxpayer challenges. The First District correctly summarized the public policy considerations with respect to the sixty-day filing period for tax assessment challenges when it stated: “[W]e are cognizant of the legislative intent and public policy behind the adoption of the nonclaim provision contained in section 194.171(2) and (6), Florida Statutes, which is to ensure prompt payment of taxes due and making available revenues that are not disputed.” Chihocky v. Crapo, 632 So.2d 230, 232 (Fla. 1st DCA 1994). In section 194.171, the Legislature required taxpayers to pay “not less than the amount of the tax which the taxpayer admits in good faith to be owing” but provided that challenges will be dismissed in cases wherein the taxpayer fails to pay the undisputed amount of taxes “before they become delinquent.” § 194.171(3), (5), Fla. Stat. (2001).

Id. at 815.

As the First District noted, in both Markham and Ward “the parties contesting the assessments were private holders of the property in dispute.” Cason, 909 So.2d at 381. Thus, subject to their challenges to the assessments, the condominium associations and developers in Markham and the long-term lessees in Ward were clearly taxable entities. The First District concluded that this Court would not have intended to apply the holdings in Markham and Ward to actions by the State contesting an ad valorem assessment. Id.

If the procedural requirements of section 194.171 are construed to apply to an action brought by the State to challenge an assessment on grounds that property it owns is immune from ad valorem taxation, the immunity would be nullified by the State’s failure to challenge the assessment within sixty days after it is certified for collection. Under those circumstances, the State would have no choice but to pay the amount of ad valorem taxes determined to be due by April 1 of the year following the assessment, purchase or redeem any tax certificates that are issued for the delinquent taxes, or risk losing its property at a tax deed sale. Indeed, as Judge Ervin observed in the majority opinion below, if section 194.171 applies to all actions challenging tax assessments without exception, even “the government of the United States would be barred from contesting a patently illegal and void assessment on property owned by it and situated in this state by reason of its failure to challenge an assessment within the required 60 days.” Ca-son, 909 So.2d at 381.

III. Applicability of 194.171 to Challenges by the State

We now consider the effect of sovereign immunity on the application of section 194.171 to actions filed by the State. The crucial inquiry is whether the language of section 194.171 clearly and unambiguously demonstrates legislative intent to apply this section to challenges by the State on State-owned property. Although legislative intent is the “polestar” of statutory interpretation, such intent is derived primarily from the language of the statute. See State v. J.M., 824 So.2d 105, 109 (Fla.2002). We conclude that no such “clear and direct” expression is manifested from the language of this statute. Dickinson, 325 So.2d at 4.

Section 194.171(2) provides that “[n]o action shall be brought” beyond the sixty-day period. It does not identify specific entities or persons to whom this requirement applies. Thus, we look to the other provisions of section 194.171 to determine whether the State is subject to the requirements of subsection (2). See Golf Channel v. Jenkins, 752 So.2d 561, 564 (Fla.2000) (“[Rjelated statutory provisions should be read together to determine legislative intent....”); Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (“It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.”).

Section 194.171(6), which provides that all the requirements of subsections (2), (3), and (5) are jurisdictional, refers to “the taxpayer.” Both subsections (3) and (5) also refer to actions “the taxpayer” must take to contest an assessment. Subsection (3) requires “the taxpayer” to pay to the tax collector the amount that he or she “admits in good faith to be owing” for the tax year in which the assessment is levied, while subsection (5) provides that “the taxpayer” cannot maintain a legal challenge to an assessment unless her or she pays taxes admittedly owed for subsequent tax years. We conclude that the Legislature intended subsection (2), like subsections (3), (5), and (6), to apply to “taxpayers.” Cf. Ward, 894 So.2d at 812 (stating that the sixty-day time requirement in section 194.171 “applies broadly to taxpayers’ actions challenging the assessment of taxes against their property regardless of the legal basis of the challenge”) (emphasis supplied).

“Taxpayer” is not defined in section 194.171 or elsewhere in chapter 194. We therefore turn to a standard dictionary and to a related statute to derive the common, ordinary meaning of the term. See Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 205 (Fla.2003) (stating that where the Legislature has not defined a term, its plain and ordinary meaning can be taken from a dictionary); State v. Mitro, 700 So.2d 643, 645 (Fla.1997) (“In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.”). Chapter 192 supplies a definition of “taxpayer” for purposes of ad valorem taxation that could encompass the State as a property owner, because taxpayer status is tied to assessments and all property, including State property, must be assessed. See § 192.001(13), Fla. Stat. (2006) (“ ‘Taxpayer’ means the person or other legal entity in whose name property is assessed ....”); § 193.085(1), (3)(a)-(b), Fla. Stat. (2006) (requiring all Florida property, including property owned by the State, to be assessed). The dictionary defines “taxpayer” as “one that pays or is liable for a tax.” Merriam-Webster’s Collegiate Dictionary 1209 (10th ed.1999). Although useful, neither of these definitions is controlling, because in construing statutory language we must give consideration “not only to the literal and usual meaning of the words, but also to their meaning and effect on the objectives and purpose of the statute’s enactment.” Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Div. of Administrative Hearings, 686 So.2d 1349, 1354 (Fla.1997).

Thus, the term “taxpayer” as used in section 194.171 should be construed in a manner consistent with the statute’s purpose, which is to ensure a reliable and predictable method for counties to collect revenue while also providing for taxpayer challenges to tax assessments. See Ward, 894 So.2d at 815. Subsection (2) of the statute serves this purpose by creating a relatively brief window in which legal challenges may be brought. Subsections (3) and (5) serve the statute’s purpose by ensuring that the disputed assessment does not disrupt the flow of taxes that are not in dispute. See id. Under these provisions, a “taxpayer” is not merely the entity in whose name the property is assessed, but one whom the county has the power to tax subject to disputes about individual assessments. In short, a “taxpayer” under section 194.171 is a taxable entity. This definition excludes the State and its political subdivisions, which are “immune from taxation since there is no power to tax them.” Dickinson, 325 So.2d at 3. Accordingly, where the State files suit challenging ad valorem taxation on grounds of sovereign immunity, the State’s assertion that it is not a taxable entity takes it outside the category of “taxpayer” targeted by section 194.171. As suggested by the First District, this is an important distinction from Markham and Ward, in which we focused on the nature of the challenges made by the private property holders rather than on their status as taxpayers. See Cason, 909 So.2d at 381 (expressing doubt that this Court intended the rationale of Markham and Ward to be extended beyond their facts).

The necessity of a clear expression of legislative intent to authorize taxation of the State reinforces our construction of section 194.171. We presume that the Legislature was aware of precedent recognizing both the State’s immunity and the necessity of a clear and direct expression of intent to authorize taxation of the State when it enacted the jurisdictional nonclaim provision, section 194.171, in 1983. See Cason, 909 So.2d at 382; see generally Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176, 1179 (Fla.1995) (“The legislature is presumed to know existing law when it enacts a statute.”). Thus, the absence of specific language imposing the procedural requirements on the State, rather than on taxpayers generally, is significant.

Language in chapter 196, Florida Statutes (2006), which governs tax exemptions, further demonstrates an absence of legislative intent to subject lawsuits brought by the State to challenge tax assessments on grounds of immunity to the jurisdictional statute of nonclaim. Although it speaks in terms of exemption rather than immunity, section 196.199(l)(b) provides that “[a]ll property of this state which is used for governmental purposes shall be exempt from ad valorem taxation except as otherwise provided by law.” As noted by the First District, this provision demonstrates that the Legislature has heeded the dictate that intent to authorize taxes on lands of the State must be expressed in “clear and unmistakable terms.” Cason, 909 So.2d at 382. The Legislature has also expressly exempted from ad valorem taxation the leasehold interest in State-owned property when the property is leased to a nongovernmental lessee who “serves or performs a governmental, municipal, or public purpose or function, as defined in s. 196.012(6)”; or is “an organization which uses the property exclusively for literary, scientific, religious, or charitable purposes.” § 196.199(2)(a), (2)(c), Fla. Stat. (2006). Thus, we conclude that the absence of a clear and unmistakable waiver of immunity from taxation and the exemption of State property used for governmental purposes from ad valorem taxation demonstrate that the Legislature does not intend for section 194.171(2) to constitute a jurisdictional bar to lawsuits brought by the State to challenge tax assessments on State property that is either immune or exempt from taxation.

The related provisions of the statutory scheme for counties to assess and collect taxes also supports this conclusion. Even when no exemption applies and a leaseholder of State property is subject to ad valorem taxation, the penalty for nonpayment falls on the leaseholder and not the State. Section 196.199(8)(a) prohibits any taxes on a leasehold by a nongovernmental lessee from becoming a lien on the governmental property itself. Instead, these taxes “constitute a debt due and shall be recoverable by legal action or by the issuance of tax executions that shall become liens upon any other property in any county of this state of the taxpayer who owes said tax.” Id. Similarly, section 197.432(9), Florida Statutes (2006), prohibits either the issuance of a tax certificate or the creation of a lien on property owned by a governmental unit that has become subject to taxation due to the lease of the property to a nongovernmental lessee. Delinquent taxes must either be “enforced and collected in the manner provided in s. 196.199(8)” or, in certain circumstances, “the delinquent taxes become a lien on the leasehold.” Id.

Under these related statutory provisions, even when the State has leased its property to a nongovernmental entity and the property is used for nongovernmental purposes, the Legislature has specifically prohibited an issuance of a tax certificate or a lien on the property itself. Thus, under no circumstances can the State lose its property when the lessee fails to pay (or challenge) ad valorem taxes. On the other hand, there are no similar provisions prohibiting the issuance of a tax certificate when the State is the owner of property that it is using for a governmental purpose. This omission is significant in that it suggests the Legislature never contemplated that the State would be a taxpayer whose property could be lost through nonpayment of ad valorem taxes. We conclude that the Legislature did not intentionally enact a statutory scheme that precludes the loss of State property for nonpayment of taxes on leased property but allows the loss through a tax deed sale of State property that has not been leased merely because the State failed to file a timely challenge to the assessment.

We also note that the provisions of section 194.171 differ from the civil statute of limitations, which specifically includes the State within its operation. See § 95.011, Fla. Stat. (2006) (providing that limitations period in chapter applies to civil actions including those brought by public entities including “the state”). In the past, we have pointed to language in other statutes to show that the Legislature “knows how to” accomplish what it has omitted in the statute in question. See, e.g., Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000) (looking to language in different statute to conclude that “[w]hen the Florida Legislature wishes to provide for set-offs for future benefits it well knows how to express itself’) (quoting Pizzarelli v. Rollins, 704 So.2d 680, 633 (Fla. 4th DCA 1997)). Section 95.011 shows that had the Legislature chosen to make the State subject to the sixty-day filing requirement in section 194.171(2), it knew how to do so. The omission is especially significant in light of the overriding principle that any waiver of the State’s immunity from ad valorem taxation must be clear and direct.

The petitioners actually use the statute of limitations to support their position that because the Legislature clearly intended the State to be subject to the limitations periods set forth in chapter 95, Florida Statutes (2006), the Legislature also intended the State to be bound by section 194.171(2). Section 95.011 provides that

a civil action or proceeding, ... including one brought by the state, a public officer, a political subdivision of the state, a municipality, ... or any agency or officer of any of them, or any other governmental authority, shall be barred unless begun within the time prescribed in this chapter or, if a different time is prescribed elsewhere in these statutes, within the time prescribed elsewhere.

(Emphasis supplied.) The petitioners contend that for lawsuits challenging ad valo-rem tax assessments, the “time prescribed elsewhere” is the sixty-day period in section 194.171(2). We disagree.

The reference to “the time prescribed elsewhere” in section 95.011 encompasses other provisions that can also be construed as statutes of limitations, but not jurisdictional statutes of nonclaim such as section 194.171. We have previously noted the important distinction between a statute of limitations and a jurisdictional statute of nonclaim:

An untimely claim filed pursuant to a jurisdictional statute of nonclaim is automatically barred. Miller v. Nolte, 453 So.2d 397 (Fla.1984). However, a claim filed beyond the time set forth in a statute of limitations is only barred if the statute of limitations is raised as an affirmative defense or, if the defense appears on the face of a prior pleading, by way of a motion to dismiss. Fla. R. Civ. P. 1.110(d). Failure to plead that the statute of limitations has expired constitutes waiver.

May v. Illinois Nat’l Ins. Co., 771 So.2d 1143, 1151 (Fla.2000) (quoting Barnett Bank v. Estate of Read, 493 So.2d 447, 448 (Fla.1986)). Conflating the two would muddle the distinction and yield confusion as to whether actions brought outside the sixty-day period in section 194.171(2) are barred automatically or only when the issue is affirmatively pled. In addition, when the State is the party challenging an ad valorem tax assessment on property it owns, treating section 194.171(2) as a statute of limitations would extract a waiver of the State’s immunity from less than clear and unambiguous language.

Accordingly, for all these reasons we conclude that the Legislature did not intend that the sixty-day filing requirement of section 194.171(2) be imposed upon a nontaxpaying governmental entity such as the State.

IV. Risk of Delay

Finally, we caution that although the State is not subject to the sixty-day requirement in section 194.171(2) under these circumstances, lengthy delay by the State in filing suit to vindicate its nontaxable status on property that is nonetheless being taxed remains risky. As noted above, section 95.011 specifies that the limitations periods in chapter 95 apply to the State, its agencies, and officers. Other time limitations on the State’s ability to challenge assessments may be derived from the principles of equitable estoppel. See State Dep’t of Revenue v. Anderson, 403 So.2d 397, 400 (Fla.1981) (stating that equitable estoppel can be applied against the State in “rare instances and under exceptional circumstances”); Trustees of Internal Improvement Fund v. Bass, 67 So.2d 433, 433 (Fla.1953) (concluding that the State was estopped from challenging delinquent tax sale of State-owned land where the present owner had been in possession more than eleven years under a deed issued by the State). However, because the issue before us concerns only the State’s status as property owner in relation to section 194.171, we need not address other means by which the sovereign may be precluded from challenging ad va-lorem property assessments and issuance of tax certificates and tax deeds because of nonpayment of taxes wrongly imposed.

CONCLUSION

The jurisdictional requirement that a lawsuit challenging an ad valorem tax assessment must be filed within sixty days after the assessment is certified for collection cannot be used to preclude the State from contesting sales of tax deeds on property that the State owns and claims is immune from taxation. We do not find, either within section 194.171 or elsewhere, the clear and unambiguous expression of legislative intent necessary to conclude that the Legislature intended that the State be subject to the harsh provisions of section 194.171 and as a result lose its immunity from taxation.

Therefore, we answer the certified question in the negative and hold that the jurisdictional nonclaim provisions of section 194.171 do not apply to a claim by the State challenging a tax assessment as void on the ground that the property assessed is immune from ad valorem taxation. We emphasize that our holding does not address whether the property at issue in this case is in fact immune from ad valorem taxation. Rather, we simply determine that sections 194.171(2) and 194.171(6) do not deprive the trial court of the jurisdiction necessary to decide the issue. We approve the First District’s decision in this case.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, QUINCE, CANTERO, and BELL, JJ., concur.

      . Section 197.432(1), Florida Statutes (2006), authorizes the sale of tax certificates on property for which ad valorem taxes have not been paid.

      . Sections 197.502-197.542, Florida Statutes (2006), set out the steps from application for a tax deed to sale of the deed at public auction. After an application for a tax deed is filed under section 197.502, the clerk must notify the property titleholder of the application and approaching tax deed sale and then, after advertising the sale, hold a public auction at which the property is sold to the highest bidder.

      .The initial complaint was filed by the Correctional Privatization Commission, which identified itself as a state agency and asserted that the prison was operated under its auspices. In 2004, DMS became the successor to the Commission pursuant to chapter 2004-248, Laws of Florida, and was thereafter substituted as a party to the lawsuit.

      . Unlike State-owned property, which is immune from taxation, property of municipalities is subject to taxation because municipalities are not subdivisions of the state. City of Gainesville, 918 So.2d at 255.

      . We did not reach the constitutional issue in Markham but noted that we had previously rejected similar challenges to the statute, section 192.037, Florida Statutes (1983). 527 So.2d at 814 n. 1 (citing Day v. High Point Condo. Resorts, Ltd., 521 So.2d 1064 (Fla.1988) and Spanish River Resort Corp. v. Walker, 526 So.2d 677 (Fla.1988)).

      . We characterized a tax assessment as void "where it has been assessed in violation of acts of Congress; ... where the property is not subject to the tax assessed; [or] where the tax roll is illegal due to some affirmative wrongdoing by the taxing official.” A voidable assessment is one "which is made in good faith but is merely irregular or unfair." Id. at 815 n. 4.

        .See § 197.333, Fla. Stat. (2006) ("Taxes shall become delinquent on April 1 following the year in which they are assessed or immediately after 60 days have expired from the mailing of the original tax notice, whichever is later.”).

      . See § 197.432, Fla. Stat. (2006) ("Sale of tax certificates for unpaid taxes”); § 197.472, Fla. Stat. (2006) ("Redemption of tax certificates”).

      . See § 197.542, Fla. Stat. (2006) ("Sale at public auction”).

      . In Barnett v. Department of Management Services, 931 So.2d 121 (Fla. 1st DCA), review granted, 933 So.2d 520 (Fla.2006), the First District certified the following as a question of great public importance:
      WHETHER, IN ENACTING CHAPTER 957, FLORIDA STATUTES, THE LEGISLATURE INTENDED THAT PRISON FACILITIES CONSTRUCTED AND OPERATED BY PRIVATE CONTRACTORS AND LEASED TO THE STATE UNDER A LEASE-PURCHASE AGREEMENT SHALL BE SUBJECT TO AD VALOREM TAXES?

        931 So.2d at 133. That case is now pending review in this Court.


author: QUINCE, J.

text:
    Michael John SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. SC04-2375.
    Supreme Court of Florida.
    Nov. 16, 2006.

      William J. Sheppard, D. Gray Thomas and Matthew R. Kachergus of Sheppard, White and Thomas, P.A., Jacksonville, FL, for Appellant.
    Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief, Criminal Appeals, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, FL, for Appellee.
   QUINCE, J.

We have for review a decision of a district court of appeal that expressly declares a state statute valid. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we approve the decision of the First District Court of Appeal in Simmons v. State, 886 So.2d 399 (Fla. 1st DCA 2004).

FACTS AND PROCEDURAL HISTORY

This case involves the prosecution of Michael John Simmons for luring or enticing a child by use of an online service in violation of section 847.0135, Florida Statutes (2002), and for transmission of material harmful to a minor in violation of section 847.0138, Florida Statutes (2002). On July 1, 2002, Columbia County Sheriffs Deputy Kenneth Neff posed as a thirteen-year-old girl named “Sandi” in an Internet chat room entitled “I like older men.” An online conversation ensued between “Sandi” and Simmons, who was located in Virginia. After “Sandi” identified herself as a thirteen-year-old girl residing in Florida, Simmons repeatedly communicated with “Sandi” about sexual activities, sent nude pictures of himself to “Sandi,” asked “Sandi” to send him a pair of her panties, offered to teach “Sandi” about sex, encouraged “Sandi” to meet him for sexual activities, and eventually made a trip to Lake City, Florida, to meet “Sandi” for three days of sexual activities at a motel. When Simmons arrived at the Lake City motel, he was arrested by members of the Columbia County Sheriffs Office.

Simmons was charged with one count of luring or enticing a child by use of an online service in violation of section 847.0135, one count of transmission of material harmful to a minor in violation of section 847.0138, and one count of carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (2002). Simmons moved to dismiss the first two counts on the grounds that the statutes are unconstitutional, that his prosecution under both statutes constituted a double jeopardy violation, and that the trial court lacked jurisdiction to proceed on the matter. The trial court denied the motions to dismiss. Simmons pled no contest to these counts and reserved his right to appeal the denial of his motions to dismiss. He was sentenced to two concurrent five-year terms of probation.

On appeal, Simmons brought facial constitutional challenges to sections 847.0135 and 847.0138. See Simmons v. State, 886 So.2d 399 (Fla. 1st DCA 2004). Simmons challenged section 847.0138 as violating the First and Fourteenth Amendments of the United States Constitution and article I, sections 4 and 9 of the Florida Constitution. Simmons did not argue that the government lacks a compelling interest in protecting the physical and psychological well-being of children, but instead argued that section 847.0138 is overbroad because it “limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech.” Id. at 403. The First District Court of Appeal rejected this argument, finding that because the statute requires the defendant to have actual knowledge or to believe that the recipient of the communication is a minor, it does not deprive adults of their constitutional right to engage in protected speech and that only communications to minors are prohibited by the statute. Id. The First District also concluded that the statute does not have a chilling effect on First Amendment speech between adults in Internet chat rooms. Id. at 404. The First District found that the statute does not prohibit information posted on websites directed to the public as the prohibited communication from an adult to a minor must be transmitted via electronic mail, which means that the message “must be specifically addressed to the individual, whether in instant messaging or e-mails sent and read at different times.” Id. While the First District acknowledged that a similar federal statute, the Communications Decency Act of 1996, had been declared unconstitutional in Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), the court concluded that the federal law differed from Florida’s statute because the federal law contained no provision limiting prohibited transmissions to those sent “to a specific individual known by the defendant to be a minor via electronic mail.” Simmons, 886 So.2d at 405 (quoting § 847.0138(l)(b)). The First District noted that the federal law struck down in Reno had included transmissions to a group that was likely to include a minor, while the Florida statute only prohibits messages harmful to minors that are sent to a specific individual known or believed to be a minor. Id.

The First District also rejected Simmons’ argument that the statute is imper-missibly vague because it applies to all minors without attempting to classify materials differently for various age groups of minors. The First District concluded that it is within the Legislature’s power to determine that certain matter is harmful to all minors and that the Legislature has the authority to protect all children, even the older ones. Id. The First District also concluded that neither statute violates the Dormant Commerce Clause, and cited its recent opinion in Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004), for this proposition. Simmons, 886 So.2d at 406. Judge Browning concurred with the majority on the constitutionality of section 847.0135, but dissented as to section 847.0138. Judge Browning found that the transmission statute was not narrowly tailored to serve a compelling state interest, is void for vagueness and overbreadth, and violates the Commerce Clause. Simmons, 886 So.2d at 407-14 (Browning, J., concurring in part and dissenting in part).

Simmons sought review by this Court on the basis that the First District’s decision expressly declares a state statute to be valid. We granted review and heard oral argument from the parties on the constitutionality of both statutes.

LAW AND ANALYSIS

Simmons contends that section 847.0138, the transmission statute, violates First Amendment principles regarding free speech and is also vague and over-broad. He also contends that both the transmission statute and the luring statute, section 847.0135, violate the Dormant Commerce Clause. We consider each challenge in turn below. The First District’s rulings on the constitutionality of the statutes are subject to de novo review by this Court. See City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002) (stating that constitutionality of a state statute is a pure question of law subject to de novo review).

1. First Amendment Challenge

The First Amendment to the United States Constitution provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const., amend. I. Florida’s Constitution similarly provides that “[n]o law shall be passed to restrain or abridge the liberty of speech.” Art. I, § 4, Fla. Const. A regulation that abridges speech because of the content of the speech is subject to the strict scrutiny standard of judicial review. See, e.g., Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Mitchell v. Moore, 786 So.2d 521, 527 (Fla.2001). Strict scrutiny also applies to content-based regulation of Internet speech. See Reno v. ACLU, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (stating that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium”). “Sexual expression which is indecent but not obscene is protected by the First Amendment. ...” Sable Commc’ns of Cal, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). However, the state may regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); Sable Commc’ns, 492 U.S. at 126, 109 S.Ct. 2829. The state has a “compelling interest in protecting the physical and psychological well-being of minors,” which “extends to shielding minors from the influence of literature that is not obscene by adult standards.” Sable Commc’ns, 492 U.S. at 126, 109 S.Ct. 2829. In doing so, however, the means must be narrowly tailored to achieve that end so as not to unnecessarily deny adults access to material which is constitutionally protected indecent material. No similar tailoring is required when the material is obscene material, which is not protected by the First Amendment. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

Simmons also challenges the transmission statute as vague and over-broad. As this Court has explained, “the doctrines of overbreadth and vagueness are separate and distinct.” Southeastern Fisheries Ass’n v. Dep’t of Nahml Res., 453 So.2d 1351, 1353 (Fla.1984). The over-breadth doctrine applies only if the legislation is susceptible of application to conduct protected by the First Amendment. Id. The overbreadth doctrine contemplates the pragmatic judicial assumption that an overbroad statute will have a chilling effect on protected expression. See City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985). As the United States Supreme Court has explained, “[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 483, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Put another way, statutes cannot be so broad that they prohibit constitutionally protected conduct as well as unprotected conduct. Firestone v. News-Press Publ’g Co., 538 So.2d 457, 459 (Fla.1989).

The vagueness doctrine has a broader application because it was developed to ensure compliance with the Due Process Clause in the Fifth Amendment of the United States Constitution. Florida’s Constitution includes a similar due process guarantee in article I, section 9. A criminal law may violate due process if it fails to give a potential offender fair notice that his contemplated conduct is forbidden or if it encourages arbitrary enforcement and gives the police too much discretion in determining whether it is applicable to a particular individual. When the law fails these tests, it is “void for vagueness.” Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Because of its imprecision, a vague statute may also invite arbitrary or discriminatory enforcement. See Southeastern Fisheries, 453 So.2d at 1353. A statute is not void for vagueness if the language conveys a “sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.” Hitchcock v. State, 413 So.2d 741, 747 (Fla.1982) (quoting United States v. Potrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947)). However, the Supreme Court has indicated that a statute that lends itself to arbitrary enforcement can be void for vagueness even if it gives fair notice of what conduct it prohibits. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (stating that the “more important aspect of the vagueness doctrine is not actual notice, but the ... requirement that a legislature establish minimal guidelines to govern law enforcement”) (internal quotation marks omitted). Further, the need for definiteness is even greater when the ordinance imposes criminal penalties on individual behavior or when it implicates constitutionally protected rights.

Section 847.0138, Florida Statutes (2002), provides:

(1) For purposes of this section:
(a) “Known by the defendant to be a minor” means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.
(b) “Transmit” means to send to a specific individual known by the defendant to be a minor via electronic mail.
(2) Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The provisions of this section do not apply to subscription-based transmissions such as list servers.

The term “harmful to minors” is defined in section 847.001(6), Florida Statutes (2002), and incorporates the constitutional standard for obscenity established by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), as modified for juveniles in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The statute provides:

“Harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
(a) Predominantly appeals to the prurient, shameful, or morbid interest of minors;
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(e) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

§ 847.001(6), Fla. Stat. (2002). This statutory definition of “harmful to minors” both narrows the scope of section 847.0138 and makes it more precise. The scope of section 847.0138 is further narrowed by the definition of “transmits,” which requires that the harmful materials be “sen[t] to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138(l)(b), Fla. Stat. (2002).

Thus, electronic mail is the only regulated transmission mechanism. The terms of the statute specifically exempt subscription-based transmissions such as list servers from its provisions. The posting of materials deemed harmful to minors on a website directed to the public is not “electronic mail,” and thus does not violate the statute. Simmons, 886 So.2d at 404; see also Richard H. Martin, State Regulation of Pornographic Internet Transmissions: The Constitutional Questions Raised by Senate Bill 144, 29 Fla. St. U.L.Rev. 1109, 1117 (2002). Additionally, the statute incorporates a knowledge element, requiring the sender to actually know or believe that the recipient of the commtmication is a minor who is located in Florida. § 847.0138(l)(a), (2)-(3).

Simmons argues that section 847.0138 suffers the same constitutional infirmities as the Communications Decency Act of 1996(CDA), which the United States Supreme Court struck down in Reno v. ACLU, and the Child Online Protection Act (COPA), which the Supreme Court found likely to fail a First Amendment challenge in Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). The CDA prohibited the transmission in interstate or foreign communications of obscene or indecent images to any recipient under eighteen years of age. 47 U.S.C. § 223(a)(1)(B) (2000). The CDA also prohibited knowingly sending patently offensive material to persons under eighteen or displaying patently offensive material in a manner that was available to persons under eighteen. Id. § 223(d). The CDA provided two affirmative defenses for persons who made good faith efforts to restrict minors’ access to the prohibited material by using existing technology or designated forms of age proof. Id. § 223(e)(5). The Supreme Court struck down the CDA as a content-based regulation of speech that was unconstitutionally vague and overbroad. See Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The Supreme Court identified a number of constitutional infirmities of the CDA, including ambiguity as to its scope based on the statute’s failure to define the terms “indecent” and “patently offensive” and its failure to provide guidance as to whether these determinations should be made with respect to minors or to the population as a whole. Id. at 871 & n. 37, 117 S.Ct. 2329. The Supreme Court found this vagueness challenge of special concern because the CDA could have a chilling effect on free speech and because it imposed criminal sanctions for violating its terms. Id. at 871-72, 117 S.Ct. 2329. The Supreme Court concluded that the vagueness problem was not cured by the CDA’s inclusion of one part of the three-prong Miller test for obscenity. 521 U.S. at 872-74, 117 S.Ct. 2329. The Supreme Court also found the CDA to be overbroad because it had the potential of suppressing a large amount of protected adult speech in pursuit of protecting children from potentially harmful materials. Id. at 875,117 S.Ct. 2329. The Supreme Court expressed concern about the “wholly unprecedented” breadth of the CDA’s coverage, noting that its “open-ended prohibitions” applied to commercial entities, nonprofit groups and individual users alike, that it included “large amounts of nonpornographic material with serious educational or other value,” that it would be “judged by the standards of the community most likely to be offended by the message,” and that it made no accommodation for parental choice. Id. at 877-78, 117 S.Ct. 2329. The Supreme Court further concluded that the CDA was not “narrowly tailored” because it had not considered less restrictive alternatives, such as “tagging” indecent material to facilitate parental control of what material is accessed, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating commercial websites differently from other portions of the Internet.- Id. at 879,117 S.Ct. 2329.

In response to Reno, Congress passed the Child Online Protection Act (COPA). 47 U.S.C. § 231 (2000). COPA imposed criminal penalties for knowingly posting commercial web content that is harmful to minors. “Harmful to minors” was defined more extensively by COPA to include obscene materials as well as a variation of the Miller standard; “minors” were defined as any persons under seventeen years. COPA also included an affirmative defense to those who employed specified means to prevent minors from accessing their websites, including using credit cards or similar devices to access the site, accepting a digital certificate of age, or employing similar technology to verify age. Despite these changes, the Supreme Court upheld a preliminary injunction to prevent enforcement of COPA pending a full trial on the merits. See Ashcroft v. ACLU, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004). The Supreme Court noted that “there are a number of plausible, less restrictive alternatives to the statute,” including blocking and filtering software which would “impose selective restrictions on speech at the receiving end, not universal restrictions at the source.” Id. at 666-67, 124 S.Ct. 2783.

We find that Florida’s Internet transmission statute differs from the CDA and COPA in several significant respects. First, section 847.0138 does not apply broadly to all materials posted on the Internet or sent via electronic mail. The statute provides that the prohibited communications must be sent via electronic mail to a specific individual known by the sender to be a minor. Thus, the concerns expressed in Reno about the CDA’s application to all communications on the Internet are not implicated by the Florida statute. Nor does the Florida statute cover web postings directed at the public as COPA did. Second, section 847.0138 defines what constitutes materials “harmful to minors” with reference to the three-prong Miller standard, unlike the CDA, which did not define the vague terms “indecent” and “patently offensive” and incorporated only one prong of the Miller test. The Miller definition specifically excludes works that have serious literary, artistic, political, or scientific value to minors. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). So does Florida’s statute. See § 847.001(6)(c), Fla. Stat. (2002) (providing that material that is “harmful to minors” is “without serious literary, artistic, political, or scientific value for minors”). Finally, section 847.0138 restricts its applicability to electronic mail, thereby treating portions of the Internet differently as the Supreme Court cited with approval in Reno. 521 U.S. at 865, 868, 877, 117 S.Ct. 2329. Because section 847.0138 only applies to electronic mail sent to a specific individual that the defendant actually knows is a minor or believes is a minor, and not to messages sent to a group that is “likely” to include a minor, we agree with the First District’s conclusion that the transmission statute does not suppress adult-to-adult speech. See Simmons, 886 So.2d at 404-05.

A number of other states have also enacted criminal statutes regulating Internet communications, including California, Michigan, New York, New Mexico, Ohio, South Carolina, Virginia, and Vermont. These statutes fall into two general categories: dissemination statutes which prohibit the transmission of materials considered harmful to a minor by computer over the Internet and luring statutes which prohibit use of the Internet to communicate with minors with the intent to seduce them. See Chin Pann, The Dormant Commerce

Clause and State Regulation of the Internet: Are Laws Protecting Minors from Sexual Predators Constitutionally Different Than Those Protecting Minors from Sexually Explicit Materials?, 2005 Duke Law & Tech. Rev. 8, ¶ 1 (2005). Some of the dissemination statutes are similar to section 847.0138 in prohibiting the transmission of sexually oriented materials to minors via the Internet. See, e.g., N.M. Stat. § 30-37-3.2(A) (2004); N.Y. Penal Law § 235.21(3) (McKinney 2000).

Simmons notes that many of these state dissemination statutes have been invalidated by federal courts on the basis that the statutes violate the First Amendment. See, e.g., PSINet, Inc. v. Chapman, 362 F.3d 227, 233-39 (4th Cir.2004) (finding Virginia dissemination statute was over-broad and not narrowly tailored); Am. Booksellers Found, v. Dean, 342 F.3d 96, 102 (2d Cir.2003) (same as to Vermont dissemination statute); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773, 781-84, 784-86 (D.S.C.2005) (striking down South Carolina dissemination statute for violating the First Amendment); Bookfriends, Inc. v. Taft, 223 F.Supp.2d 932 (S.D.Ohio 2002) (finding Ohio dissemination statute was overbroad in violation of the First Amendment); Cyberspace Commc’ns, Inc. v. Engler, 142 F.Supp.2d 827, 830-31 (E.D.Mich.2001) (same as to Michigan dissemination statute). Simmons contends that the Florida statutes should meet a similar fate.

However, many of the state statutes involved in the cases cited by Simmons have included the Internet regulation as part of a much broader statute that also prohibits the dissemination of such materials to minors by almost all means, i.e., selling, renting, or lending pictures, photographs, books, or magazines or exhibiting a motion picture or selling an admission ticket to a minor, and not just by transmission via computer or electronic mail. See, e.g., Mich. Comp. Laws Ann. § 722.675 (West Supp.2006); S.C.Code Ann. § 16-15-385 (2003); Vt. Stat. Ann. tit. 13, § 2802a (Supp.2006); Va.Code Ann. § 18.2-391 (2004).

Additionally, we find other important distinctions between the state dissemination statutes struck down by the federal courts and the Florida statute at issue here. The dissemination statutes at issue in Southeast Booksellers, American Booksellers, and Cyberspace Communications applied broadly to the dissemination of all digital electronic files to minors via the Internet. This included not only electronic communications directed to a specified individual, but also automatic mailing list services, newsgroups, chat rooms, and websites published for general public access. The Virginia dissemination statute at issue in PSINet applied to all electronic files provided for commercial purposes, without regard to the manner of transmission or dissemination. The New Mexico dissemination statute at issue in ACLU v. Johnson, 194 F.3d 1149, 1159 (10th Cir.1999), was so broad that it rendered virtually all Internet communications violative of the statute. In contrast, Florida’s dissemination statute applies narrowly to electronic mail sent to a specific individual that the sender knows or believes to be a minor and only applies to material that meets the three-prong definition of being “harmful to minors.”

In light of these cases and the First Amendment principles discussed above, we reach the following conclusions about section 847.0138. Florida’s transmission statute is a content-based regulation of speech and thus subject to strict scrutiny. However, the State has a compelling interest in protecting the physical and psychological well-being of minors from harmful materials. Further, the statute is narrowly tailored to promote this compelling interest as it only applies to communications sent via “electronic mail” to a specific individual that the sender either knows or believes to be a minor. To the extent that the term “electronic mail” is not sufficiently defined by the statute, we interpret it as including both email and instant message communications sent to a specific individual. Thus, the statute does not apply to websites or other materials posted on the Internet for general public viewing. Nor does the statute regulate all portions of the Internet with the same broad brush.

We further conclude that the term “harmful to minors” is adequately defined by reference to the three-prong Miller standard, albeit modified to apply to minors. Under this statutory definition, material is “harmful to minors” if it depicts “nudity, sexual conduct, or sexual excitement” that (1) “[predominantly appeals to the prurient, shameful, or morbid interests of minors,” (2) is “patently offensive” to the “prevailing standards in the adult community” as to “what is suitable material for minors,” and (3) as a whole “is without serious literary, artistic, political, or scientific value for minors.” § 847.001(6). Considered together, these three prongs “limit the uncertain sweep” of the definition. Reno, 521 U.S. at 873, 117 S.Ct. 2329 (explaining that inclusion of one of the Miller prongs did not cure the vagueness of the CDA). As the Supreme Court explained in Reno, the “societal value” requirement in the third Miller prong is “particularly important” because it “allows appellate courts to impose some limitations and regularity on the definition [of ‘harmful to minors’] by setting, as a matter of law, a [uniform] floor for socially redeeming value.” Id.

This “societal value” requirement excludes a host of materials from the ambit of the statute and negates any claim that the statute is unconstitutionally overbroad. Transmissions in the aid of legitimate scientific or educational purposes would not meet the third prong of being “without serious literary, artistic, political, or scientific value for minors.” Thus, a depiction of Michelangelo’s David transmitted for an art history class would not meet the statutory definition. Nor would an illustration of human genitalia intended for a sex education or biology class. See Simmons, 886 So.2d at 409 (Browning, J., concurring in part and dissenting in part). In sum, the scope of the statute is sufficiently limited by its terms, thereby negating Simmons’ vagueness and overbreadth challenges.

2. Dormant Commerce Clause Challenges

The United States Constitution gives Congress the power to “regulate Commerce with foreign Nations, and among the several States.” U.S. Const, art. I, § 8, cl. 3. This is commonly referred to as the Commerce Clause. Concomitant with this grant of authority to Congress, the United States Supreme Court has recognized a dormant aspect of the Commerce Clause that limits the states’ power to regulate interstate commerce even in the absence of federal legislation. This aspect is referred to as the Dormant Commerce Clause and was recognized by the Supreme Court sometime in the early 1800s. See Willson v. Blach-Bird Creek Marsh Co., 27 U.S. (2 Pet.) 245, 7 L.Ed. 412 (1829) (explicitly recognizing the negative aspect of the Commerce Clause); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824) (disposing of case on Supremacy Clause grounds, but stating in dictum that the Commerce Clause might include a prohibition on the states’ ability to regulate interstate commerce).

Dormant Commerce Clause jurisprudence has evolved over time, but still attempts to balance the states’ local interests against a concern for uniformity of regulation. Under the current jurisprudence, statutes that openly discriminate against out-of-state economic interests in order to protect in-state interests are subject to a per se rule of invalidity. Statutes that are facially neutral but impose an incidental burden on interstate commerce are analyzed under the Pike balancing test, which provides:

Where the statute regulates even-hand-edly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (citation omitted).

There are also two other aspects of the Dormant Commerce Clause that are important to the assessment of a state statute that regulates the Internet: whether the state law regulates extraterri-torially and whether the state law leads to inconsistent regulatory burdens. In Healy v. Beer Institute, Inc., 491 U.S. 324, 336-37, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989), the Supreme Court articulated a three-prong analysis to determine whether a state law regulates outside the state’s borders:

First, the “Commerce Clause .... precludes the application of a state statute to commerce that takes place wholly outside of the State’s borders, whether or not the commerce has effects within the State.” ... Second, a statute that directly controls commerce occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid regardless of whether the statute’s extraterritorial reach was intended by the legislature.... Third, the practical effect of the statute must be evaluated not only by considering the consequences of the statute itself, but also by considering how the challenged statute may interact with the legitimate regulatory regimes of other States and what effect would arise if not one, but many or every, State adopted similar legislation.

(Citations omitted.) The “critical inquiry” in such extraterritorial effect eases “is whether the practical effect of the regulation is to control conduct beyond the boundaries of the State.” Id. at 336, 109 S.Ct. 2491. Federal courts have also invalidated state statutes under the Dormant Commerce Clause because the statutes potentially subject an area of interstate commerce, namely rail and highway traffic, to inconsistent state regulations. See, e.g., Morgan v. Virginia, 328 U.S. 373, 386, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946) (invalidating a state law that required a reseating of passengers on interstate buses entering Virginia in order to comply with a local segregation law because it interfered with “the need for national uniformity in the regulations for interstate travel”); Southern Pac. Co. v. Arizona ex. rel. Sullivan, 325 U.S. 761, 767, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945) (concluding that an Arizona statute limiting the length of trains in the state was an unconstitutional burden on interstate commerce “because of the need of national uniformity”).

The seminal case involving a Dormant Commerce Clause analysis of a state Internet regulation is American Libraries Ass’n v. Pataki, 969 F.Supp. 160, 181 (S.D.N.Y.1997), which involved a New York dissemination statute. The statute prohibited the use of a computer to disseminate sexually oriented materials deemed harmful to minors. Harmful to minors was statutorily defined by using the Miller test. The New York statute also contained a number of affirmative defenses, including that the dissemination was for scientific, educational, governmental or similar uses, that the sender made a reasonable effort to ascertain the true age of the recipient, that the sender made a good faith effort to restrict access by minors, that access to the site was restricted by some form of age verification, or that the defendant labeled the material so that it could be blocked by software. The federal district court concluded that the Internet “represents an instrument of interstate commerce, albeit an innovative one.” Id. at 173. Thus, the court concluded, the “regulation of the Internet impels traditional Commerce Clause considerations.” Id. First, the court concluded that New York had overreached by enacting a law that sought to regulate conduct occurring outside its borders, thereby violating the Commerce Clause by virtue of its extraterritorial effects. The court noted that the nature of the Internet makes it impossible to restrict the effects of the New York statute to conduct occurring within New York. Id. at 177. Second, the court concluded that under the Pike balancing test, the burdens that the statute imposed on interstate commerce were excessive in relation to the local benefits it conferred. Id. While the court recognized that protecting children against pedophilia is “a quintessentially legitimate state objective,” id., the local benefits likely to result from the statute were “attenuated” because it would have no effect on communications originating outside the United States, the prosecution of out-of-state parties who violate the statute but whose only contact with New York occurs via the Internet was beset with practical and jurisdictional difficulties, and other New York statutes existed to protect children against sexual exploitation. Id. at 178-79.

In contrast, the court identified a number of burdens on interstate commerce: the chilling effect of the statute was bound to exceed actual cases likely to be prosecuted; Internet users would either have to self-censor or risk prosecution, which would impose an unreasonable restriction on interstate commerce; and the costs associated with trying to comply with the statutory defenses would be excessive. Id. at 179-80. Finally, the court concluded that the statute unconstitutionally subjected interstate use of the Internet to inconsistent regulations. Id. at 181. The court noted that there are differing community standards as to what is “harmful to minors,” yet Internet users cannot foreclose access to their work from certain states or send differing versions of a communication to different jurisdictions. Id. at 182-83. Because “[fjurther development of the Internet requires that users be able to predict the results of their Internet use with some degree of assurance,” the court struck down the New York statute as a violation of the Commerce Clause. Id. at 183. Other federal courts have relied on the Pataki analysis to conclude that other state dissemination statutes also violate the Dormant Commerce Clause. See, e.g., PSINet, Inc. v. Chapman, 362 F.3d 227, 239-40 (4th Cir.2004); ACLU v. Johnson, 194 F.3d 1149, 1160-62 (10th Cir.1999); Cyberspace Commc’ns, Inc. v. Engler, 142 F.Supp.2d 827, 830-31 (E.D.Mich.2001).

Simmons argues that these eases support his Dormant Commerce Clause challenge to the Florida transmission statute. However, we note important distinctions between the Florida statute at issue here and the dissemination statutes struck down under the Pataki Dormant Commerce Clause analysis. The New York statute applied to all Internet dissemina-tions, including those sent by mail exploders or list servers, members of newsgroups, or participants in chat rooms, as well as material posted on websites. As the district court explained in Pataki,

no aspect of the Internet can feasibly be closed off to users from another state. An internet user who posts a Web page cannot prevent New Yorkers or Oklaho-mans or Iowans from accessing that page and will not even know from what state visitors to that site hail. Nor can a participant in a chat room prevent other participants from a particular state from joining the conversation. Someone who uses a mail exploder is similarly unaware of the precise contours of the mailing list that will ultimately determine the recipients of his or her message, because users can add or remove their names from a mailing list automatically. Thus, a person could choose a list believed not to include any New Yorkers, but an after-added New Yorker would still receive the message.

969 F.Supp. at 171. Significantly, the district court recognized that e-mail, “because it is a one-to-one messaging system, stands on a slightly different footing than the other aspects of the Internet.” Id.

At least two other federal courts have engaged in a different Dormant Commerce Clause analysis, albeit still concluding that the state statutes in question violated the Dormant Commerce Clause. In American Booksellers Foundation v. Dean, 342 F.3d 96 (2d Cir.2003), the Second Circuit concluded that the Vermont dissemination statute violated the Dormant Commerce Clause because of its extraterritorial effect. Id. at 102-04. The court noted that “[bjecause the internet does not recognize geographic boundaries, it is difficult, if not impossible, for a state to regulate internet activities without ‘project[ing] its legislation into other States.’ ” Id. at 103 (quoting Healy v. Beer Inst., 491 U.S. 324, 334, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989)). The court declined to apply the Pike balancing test because it concluded that the extraterritorial effect resulted in a per se violation of the Dormant Commerce Clause. Id. at 104. Similarly, in Southeast Booksellers Ass’n v. McMaster, 371 F.Supp.2d 773, 786-87 (D.S.C.2005), the district court focused on the unique nature of the Internet in its Dormant Commerce Clause analysis. The court noted that “Internet speakers have no practical, reliable means of determining the geographic location of the recipients of their online communications” nor any way of “ensuring their communications are not accessed in a certain geographic location.” Id. at 787. Thus, the court concluded, South Carolina’s act was invalid because it placed an undue burden on interstate commerce by regulating commerce occurring wholly outside of South Carolina. Id.

In contrast to these other state statutes found to violate the Dormant Commerce Clause, the Florida dissemination statute at issue here applies only to electronic mail. Thus, the access problems related to web pages, chat rooms, and mail exploders are not at issue as these methods of transmission are not covered by the Florida statute. Furthermore, the Florida transmission statute provides that the sender who transmits the e-mail containing material that is harmful to minors must either know or believe that the specific individual who is the recipient of the e-mail is a minor located in Florida. § 847.0138(3). This statutory requirement narrows the reach of the Florida statute and negates the geographic location problems related to the state dissemination statutes invalidated by the federal courts. In light of these significant distinctions, we conclude that section 847.0138 does not violate the Dormant Commerce Clause.

Simmons also challenges Florida’s luring statute as violating the Dormant Commerce Clause. The First District rejected this challenge with citation to its prior opinion in Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004). In Cashatt, the First District found no violation under the Pike balancing test. Id. at 436. The court reasoned that “[t]he state has a compelling interest in protecting minors from being seduced to perform sexual acts, and no legitimate commerce is burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them.” Id. The court found the effect of the luring statute on interstate commerce to be “incidental at best” and “far outweighed by the state’s interest in preventing harm to minors.” Id. Finally, the court found that the statute does not burden Internet users with inconsistent state regulations because the “intent to seduce” element narrows the scope of the statute. Id.

Several state courts have upheld state Internet regulations against similar Commerce Clause challenges. See, e.g., People v. Hsu, 82 Cal.App.4th 976, 99 Cal.Rptr.2d 184, 189 (2000); Hatch v. Superior Court, 80 Cal.App.4th 170, 94 Cal.Rptr.2d 453 (2000); People v. Foley, 94 N.Y.2d 668, 709 N.Y.S.2d 467, 731 N.E.2d 123 (2000); People v. Barrows, 273 A.D.2d 246, 709 N.Y.S.2d 573 (NY.App.Div.2000). Like the First District in Cashatt, these other state courts have viewed the intent element of their statutes as a crucial distinguishing factor. See Hatch, 94 Cal. Rptr.2d at 473 (finding statute did not burden interstate commerce in light of requirements that those charged must intend to seduce and commit at least an attempt to do so in California); Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 132-33 (distinguishing the challenged statute from the provision struck down in Pataki because of the additional luring prong contained in the challenged statute); State v. Snyder, 155 Ohio App.3d 453, 801 N.E.2d 876, 886 (2003) (concluding that the luring element in Ohio’s statute made it a valid exercise of state’s police power). These courts have also concluded that no “legitimate commerce ... is derived from the intentional transmission of sexually graphic images to minors for the purpose of luring them into sexual activity” and such conduct “deserves no ‘economic’ protection.” Foley, 709 N.Y.S.2d 467, 731 N.E.2d at 133; accord Hatch, 94 Cal.Rptr.2d at 472-73 (stating complete agreement with Foley on this point; concluding any burdens imposed by the California statute “are not upon any protected right of commerce at all”); see also State v. Backlund, 672 N.W.2d 431, 438 (N.D.2003) (stating that there was no legitimate commerce burdened by North Dakota’s luring statute).

While the Hsu court also concluded that California’s luring statute did not violate the Commerce Clause, the court recognized that the “Internet is undeniably an incident of interstate commerce,” and thus the defendant’s Commerce Clause claim was examined under the Pike balancing analysis. 99 Cal.Rptr.2d at 190. Under this analysis, the Hsu court concluded that the state has a compelling interest in protecting minors from being seduced to engage in sexual activities, that no legitimate commerce would be burdened by penalizing the transmission of harmful sexual material to known minors in order to seduce them, and that, when harmonized with the entire California penal scheme, the California luring statute “does not effectively regulate activities beyond California.” Id. at 190-91.

Florida’s luring statute prohibits knowingly using a computer online service “to seduce, solicit, lure, or entice” a minor residing in Florida, or a person believed to be a minor residing in Florida, to commit sexual acts proscribed by other Florida statutes, including sexual battery, lewd and indecent exposure, or child abuse. § 847.0135(3), Fla. Stat. (2002). The statute also prohibits any attempt to do the same.

We conclude that this luring statute does not violate the Dormant Commerce Clause. The State has a compelling interest in protecting minors from being lured to engage in illegal sexual acts. We also agree with the First District in Cash-att and our sister states that there is no legitimate interstate commerce interest in communicating with Florida minors for the purpose of luring them into sexual activity. Further, the statute is narrowed by the “intent to seduce” element and the requirement that the targeted minor reside in Florida. Thus, any burden that the statute might have on interstate commerce is incidental, at best.

Finally, we conclude that the luring statute does not extend to conduct that takes place wholly outside of Florida’s borders, as prohibited under the extraterritoriality effect explained in Healy v. Beer Institute. A person who commits a crime partly in one state and partly in another may be tried in either state under the Sixth Amendment of the United States Constitution. See Lane v. State, 388 So.2d 1022, 1028 (Fla.1980). Section 847.0135(5) provides that a person is subject to criminal jurisdiction in Florida pursuant to chapter 910, Florida Statutes, which governs matters of jurisdiction and venue, for engaging in the proscribed conduct either within or outside the state, provided that the targeted recipient is a minor residing in this state or another person that the actor believes to be a minor residing in this state. See also State v. Ruiz, 909 So.2d 986, 987-88 (Fla. 5th DCA 2005) (holding that section 847.0135(5) established subject matter jurisdiction in Florida courts for prosecution of defendant who transmitted pornography via his computer in Virginia to a person that the defendant believed to be a minor in Florida). Florida’s criminal jurisdiction statute provides that a person is subject to prosecution in Florida for an offense committed while the person is either within or outside the state provided that the offense is “committed wholly or partly within the state.” § 910.005(l)(a), Fla. Stat. (2005) (emphasis added); see also Simmons v. State, 934 So.2d 1100, 1112 (Fla.2006) (affirming principle that Florida has jurisdiction to prosecute for a crime that is committed either wholly or partly within the state). Section 910.005(2) explains that an offense is committed partly within Florida if “either the conduct that is an element of the offense or the result that is an element, occurs within the state.” In the case of using a computer to solicit a Florida minor to engage in prohibited sex acts, the element of soliciting must involve a “child residing in this state” or “another person believed by the [out-of-state defendant] to be a child residing in this state” and thus the conduct takes place partly in Florida where the targeted child resides and receives the email. Cf. Black v. State, 819 So.2d 208, 211-12 (Fla. 1st DCA 2002) (holding that conspiracy carried forward by sending faxes into Florida from another jurisdiction is punishable in Florida under Florida law); State v. Meyers, 72 Haw. 591, 825 P.2d 1062, 1064-65 (1992) (holding that for purposes of establishing criminal jurisdiction, “a telephone call constitutes conduct in the jurisdiction in which the call is received”). Thus, when the luring statute is considered in conjunction with Florida’s criminal jurisdiction statutes, Florida’s criminal jurisdiction extends only to conduct which has sufficient connections with the state. No wholly extraterritorial conduct is ever affected.

CONCLUSION

In light of the statutory limitations contained in Florida’s Internet regulations and for the reasons explained above, we reject Simmons’ constitutional challenges to sections 847.0135 and 847.0138 of the Florida Statutes. Accordingly, we approve the decision reached by the First District below.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ., concur.

      . This statute prohibits the use of a computer service to "seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child” to commit illegal acts relating to sexual battery, lewd or lascivious acts, indecent exposure, or child abuse. See § 847.0135(3), Fla. Stat. (2002). Statutes such as this are commonly referred to as "luring” statutes.

      . This statute prohibits the transmission to a minor of "an image, information, or data that is harmful to minors” by means of an electronic device or equipment. See § 847.0138(2), Fla. Stat. (2002). Statutes such as this are commonly referred to as "transmission” statutes.

      . Simmons did not raise any double jeopardy or subject matter jurisdiction arguments in his appeal to the First District Court of Appeal. See Simmons, 886 So.2d at 401 n. 1.

      . In Cashatt, the First District upheld section 847.0135 against constitutional challenges that the statute violates the First Amendment and the Dormant Commerce Clause.

      . The Due Process Clause provides that ”[n]o person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const, amend. V.

      . Florida's Constitution guarantees that ”[n]o person shall be deprived of life, liberty, or property without due process of law.” Art. I, § 9, Fla. Const.

      . We agree with the First District’s interpretation of "electronic mail” as including both email and electronic mail sent by instant messaging. See Simmons, 886 So.2d at 404, 404 n. 3.

      . In Miller v. California, 413 U.S. 15, 24, 93 S.Ct 2607, 37 L.Ed.2d 419 (1973), the Supreme Court established a three-prong obscenity standard:
      (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
      (Internal quotation marks and citations omitted.) The CDA included only the “patently offensive” prong of the Miller standard.

      . COPA included a variation of the three-prong Miller standard described supra in note 8. The COPA standard provided that material is harmful to minors that:
      (A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
      (B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and
      (C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
      47 U.S.C. § 231(e)(6) (2000).

      . This statute was amended in 2005 to delete the crime of dissemination of material that is harmful to a minor by computer and to create the crime of child solicitation by computer. See N.M. Stat. § 30-37-3.2(A) (Supp.2006).