text:
    CITIZENS ADVOCATING RESPONSIBLE ENVIRONMENTAL SOLUTIONS, INC., etc., et al., Appellants, v. CITY OF MARCO ISLAND, etc., et al., Appellees.
    No. SC06-1577.
    Supreme Court of Florida.
    May 31, 2007.

      Samuel C. Gold and Kevin L. Dees of Gold and Dees, P.A., Naples, FL, for Appellants.
    Michael S. Davis of Bryant, Miller and Olive, P.A., Tampa, FL, and Richard D. Yovanovich, City Attorney, of Goodlette, Coleman and Johnson, Naples, FL, Thomas B. Constantine of Bryant, Miller and Olive, P.A., Jacksonville, FL, and Mark G. Lawson of Bryant, Miller and Olive, P.A., Tallahassee, FL, for Appellees.
   PARIENTE, J.

This case is before the Court on appeal from a circuit court judgment validating two bond issuances proposed by the City of Marco Island. We have jurisdiction. See art. V, § 3(b)(2), Fla. Const.; § 75.08, Fla. Stat. (2006). The purpose of the bonds is to finance the expansion of the City’s wastewater collection and treatment system in order to provide wastewater collection and treatment for users not currently served by the system. The sole issue raised in this appeal is whether the special assessments, which will be used to pay the debt service on the two bond issuances, are equitably apportioned when imposed only on new users rather than on all users of the system. Because the expansion of the wastewater treatment and collection system confers a special benefit on the new users, the special assessments are not arbitrary or inequitable. Accordingly, we conclude that the bond issuances comply with the requirements of law and affirm the trial court’s judgment validating the bonds.

BACKGROUND

The City of Marco Island (City) acquired the utility assets located on Marco Island in 2003 and thereafter embarked on a study to create a ten-year utility master plan for expansion of the wastewater collection and treatment system. The master plan recommended expansion of the waste-water utility system to all areas of the City where centralized sewer service is not available and properties are relying on septic tanks and cess pits. Under the master plan, expansion of capacity and construction of collection facilities are planned for the current wastewater treatment system. The capacity will be expanded from 3.5 million gallons to 5 million gallons and the wastewater collection system will be extended to accommodate the new users. The City estimated the cost of the project to be $38 million for all of the assessment districts within the City’s septic tank replacement program. The City further estimated that the pro rata costs for the two districts in this first phase of the expansion project would be $1,500,000 for the South Barfield district and $3,500,000 for the Tigertail district.

In order to fund the initial phase of the expansion, the City proposed two non-ad valorem revenue bond issuances, identified as “not to exceed $1,500,000 Special Assessment Revenue Bond, Series 2006” and “not to exceed $3,500,000 Special Assessment Revenue Bond, Series 2006.” The revenue bonds were proposed to fund the phased construction costs for extension of the City’s wastewater collection and transmission facilities and the expansion of wastewater treatment capacity. Debt service on the bonds will be paid with revenue received from special assessments from the two districts.

These proposed bond issuances were the result of the City’s adoption of a series of assessment and bond resolutions. After public hearings, the City determined that new users in both the South Barfield and the Tigertail districts will fund their proportionate share of the extension of the collection improvements and the expansion of capacity in the existing facility through special assessments, which will in turn pay debt service on the two bond issu-ances. The bond resolutions expressly pledge the assessments for the repayment of the bonds and mandate that the proceeds of the bond issuances be deposited into a project fund to be used to pay the project costs described in the assessment resolutions.

The City sought circuit court validation of these special assessment bonds. Citizens Advocating Responsible Environmental Solutions, Inc., and Douglas Enman and Frances Enman (collectively, “Citizens”) challenged the validity of the bond issuances, primarily arguing that the special assessments upon new users of the system were arbitrary and not equitably apportioned because existing users, as well as the entire community, will benefit from expansion of the wastewater treatment system. Citizens also contended that existing users should be assessed for the project because the bond monies might be spent to make repairs and modifications to the wastewater treatment facility that would have been required even absent an expansion plan.

After a bench trial, during which extensive testimony was taken and documents were received into evidence, the trial court entered a final judgment finding the bond issuances valid and the assessments equitably apportioned.

ANALYSIS

This Court performs expedited review in bond validation cases to “facilitate[ ] an adjudication as to the validity of bonds so as to provide assurance of the marketability of the bonds.” City of Oldsmar v. State, 790 So.2d 1042, 1050 (Fla.2001). Our review authority in these cases is “circumscribed in scope and purpose,” id. at 1049, and is generally limited to three issues: (1) whether the public body has the authority to issue bonds; (2) whether the purpose of the obligation is legal; and (3) whether the bond issuance complies with the requirements of law. See Keys Citizens for Responsible Gov’t, Inc. v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 944 (Fla.2001); State v. Osceola County, 752 So.2d 530, 533 (Fla.1999). However, where, as here, a bond issuance is funded by special assessments, we will apply an additional two-pronged test to evaluate whether those special assessments meet the requirements of the law. The Court in City of Winter Springs v. State, 776 So.2d 255 (Fla.2001), explained:

To comply with the requirements of the law, a special assessment funding a bond issuance must satisfy the following two-prong test: (1) the property burdened by the assessment must derive a special benefit from the service provided by the assessment; and (2) the assessment for the services must be properly apportioned among the properties receiving the benefit. See Lake County v. Water Oak Management Corp., 695 So.2d 667, 668 (Fla.1997) (citing City of Boca Raton v. State, 595 So.2d 25, 30 (Fla.1992)).

Id. at 257.

The trial court’s final judgment of validation comes to this Court clothed with a presumption of correctness. Osceola County, 752 So.2d at 533. We review the trial court’s factual findings for competent, substantial evidence and its conclusions of law de novo. City of Gainesville v. State, 863 So.2d 138, 143 (Fla.2003). The City’s legislative findings, namely that the service to be provided by the special assessment confers a special benefit on the land burdened by the assessment, and that the costs are properly apportioned among the properties receiving the benefit, are also entitled to .a presumption of correctness and will be upheld unless the determination is arbitrary. See City of Winter Springs, 776 So.2d at 258; Sarasota County v. Sarasota Church of Christ, Inc., 667 So.2d 180, 184 (Fla.1995).

Citizens does not dispute the authority of the City to issue the bonds or the legality of the purpose of the bonds. Their challenge is directed to whether the special assessments that will pay debt service on the bond issuances comply with the requirements of law. Citizens’ main contention is that the assessments will be used to make needed improvements to the existing plant which are already required, and therefore existing users should also be assessed for those costs. 'There is no support for that proposition in the record.

The city council of the City of Marco Island made legislative findings based on the evidence before it that the properties to be assessed would be specially benefited by the collection and expansion project in various ways, which include: (a) providing a centralized means of collecting and disposing of treated wastewater in a manner that diminishes environmental burdens created by the current, less effective means of treating wastewater; (b) facilitating the development or redevelopment of the properties; (c) increasing the utility of properties by reducing the land needed for on-site sewage treatment facilities; and (d) accommodating increased demand for wastewater collection, treatment and disposal from individual properties.

Before adoption of the final assessment resolutions and the bond resolutions, the City had its assessment methodology reviewed by Public Resource Management Group (“PRMG”), an independent utility consultant. The report of PRMG contained the following conclusions:

We believe that the allocation of the Wastewater Treatment Capacity Improvements based on the proportionate capacity requirements of the parcels that are associated with the Assessment Program, is a reasonable basis to assign such capital cost to each parcel located within the Assessment Areas.

The principal author of the PRMG report also testified before the trial court that the new users would’ be specially benefited.

..The City’s Public Works Director and the City Manager testified that there would have been no reason to expand the capacity of the wastewater treatment plant beyond 3.5 million gallons if the City had not undertaken to expand the system to serve new users in the fifteen districts, and that the existing users would receive no special benefit from the expansion of the system.

Finally, the City’s use of the bond funds and the assessments is expressly limited to the wastewater treatment expansion and collection project. The City’s Finance Director testified that the costs attributable to the new users are coming from the assessments which will be used to pay debt service on the bonds. Section 3(c) of each bond resolution passed by the City for the Tigertail and South Barfield districts expressly provides that debt service on the bonds will be payable solely from the assessments. Section 8 of each bond resolution expressly pledges the assessments for payment of the bonds. The project to be funded by the bond revenues is expressly described in the assessment resolutions for both the Tigertail and South Barfield districts as wastewater treatment collection improvements for installation and construction of gravity lines, .force mains, pump or lift stations, and associated infrastructure necessary to service the assessment area. Wastewater treatment capacity improvements are defined to include facilities to transmit, receive, accommodate, treat, and dispose of additional wastewater generated by new users and growth in the assessment areas. The bond covenants require use of the bond funds to construct these described projects and use of assessments to pay debt service on the bonds and, in this respect, clearly meet the requirements of the law.

Relying on Contractors & Builders Ass’n of Pinellas County v. City of Dunedin, 329 So.2d 314, 320-321 (Fla.1976), Citizens contends that allocation of assessments which distinguishes between existing users of the wastewater treatment facilities and the new users is arbitrary and illegal, thereby rendering the proposed bond issues invalid. In Contractors & Builders Ass’n, an ordinance establishing connection fees was invalidated on grounds unrelated to the issues in this appeal. However, in that decision, we addressed the principles underlying fair allocation of costs and fees for utility system improvements, in pertinent part, as follows:

In principle ... we see nothing wrong with transferring to the new user of a municipally owned water or sewer system a fair share of the costs new use of the system involves.
The cost of new facilities should be borne by new users to the extent new use requires new facilities, but only to that extent. When new facilities must be built in any event, looking only to new users for necessary capital gives old users a windfall at the expense of new users.

Id. at 317-18, 321. We observed that imposing fees only upon the properties to be served “which do not exceed a pro rata share of reasonably anticipated costs of expansion, is permissible where expansion is reasonably required, if use of the money collected is limited to meeting the costs of expansion.” Id. at 320.

In this case, the City’s expert witnesses and City officials testified that the new users in these two districts will be assessed only a pro rata share of the total costs of extending the wastewater collection facilities and expanding the treatment capacity of the plant from 3.5 million gallons to 5 million gallons. Competent, substantial evidence was presented that expansion was reasonably required and that those assessed would receive special benefits solely based upon the new wastewater treatment capacity expansion and extension of the collection facilities to their properties. Thus, Contractors & Builders Ass’n does not support Citizens’ argument.

A more analogous case is Murphy v. City of Port St. Lucie, 666 So.2d 879 (Fla.1995), a bond validation proceeding involving special assessments for expansion of water and sewer lines to designated areas not previously served. There, the challenger argued that the utility expansion was part of a city-wide program intended to confer a community-wide benefit to all the citizens of Port St. Lucie and that the benefit received by the specially assessed properties was only incidental to the benefits conferred on the community as a whole. We concluded, however, that the special assessment was proper precisely because the city was “only assessing the properties that will be connected to the water and sewer system” and the “property owners presently ... on-line with the system ... will not be benefited by the extension.” Id. at 881. The same conclusion applies to the special assessments in this case.

Citizens also contends, as did the challenger in Murphy, that the special assessments are not equitably apportioned to new users because the expansion of the wastewater treatment plant and extension of the system to new users will benefit the entire community. This contention is not supported by the record. The City presented competent, substantial evidence through expert witnesses and reports, and by testimony of City officials, that the new users of the expanded wastewater treatment system will be specially benefited by inclusion in the central wastewater collection and treatment system beyond any generalized benefit to the community as a whole. The fact that an entire community might receive a collateral or incidental benefit from new users being connected to a sanitary sewer system does not negate the evidence presented below that new users will specially benefit by virtue of their inclusion in the extended and expanded central wastewater system.

Lastly, Citizens challenges as speculative the City’s plan to fund future improvements to the existing facility that are unrelated to expansion of the system through a general rate base increase to be paid by all users. Questions concerning any future funding plan for improvements to the existing facility not necessitated by the expansion to serve additional users and not related to these proposed bond issu-ances are not before us at this time and are expressly outside the jurisdiction of this Court when reviewing bond validation proceedings. See Murphy, 666 So.2d at 880.

CONCLUSION

Competent, substantial evidence before both the city council and the trial court supports a finding that the improvements to expand capacity and treatment facilities and to provide for wastewater collection from new users will confer a special benefit on the new users. Because we conclude that the City acted within its authority and complied with the requirements of the law in issuing the South Barfield not to exceed $1,500,000 Special Assessment Revenue Bond, Series 2006 and the Tigertail not to exceed $8,500,000 Special Assessment Revenue Bond, Series 2006, the trial court’s final judgment validating the bonds and the special assessments’is affirmed.

It is so ordered.

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

      . When these bond issuances were proposed, the plan involved a total of fifteen assessment districts.

      . Marco Island, Fla., Resolution No. 05-38 (June 20, 2005) (South Barfield Initial Assessment Resolution); Marco Island, Fla., Resolution No. 05-39 (June 20, 2005) (Tigertail Initial Assessment Resolution); Marco Island, Fla., Resolution No. 05-54 (August 1, 2005) (South Barfield Final Assessment Resolution); Marco Island, Fla., Resolution No. 05-53 (August 1, 2005) (Tigertail Final Assessment Resolution); Marco Island, Fla., Resolution No. 05-70 (October 17, 2005) (South Barfield Bond Resolution); Marco Island, Fla., Resolution No. 05-72 (October 17, 2005) (Tigertail Bond Resolution); and Marco Island, Fla., Resolution No. 05-69 (October 17, 2005) (Intent Resolution setting forth the City’s intent to collect the assessments under the uniform method of collecting non-ad valorem assessments as authorized by section 197.3632, Florida Statutes (2005)).

      .The City provided for levying the special assessments by its assessment ordinance. Marco Island, Fla., Code §§ 2-281 to 2-379 (2000).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard A. NIX, Petitioner, v. Brenda W. NIX, Respondent.
    No. SC06-1326.
    Supreme Court of Florida.
    May 31, 2007.
    Ross A. Keene of Beroset and Keene, Pensacola, FL, for Petitioner.
    Phillip S. Howell and Ryan Pedraza of Galloway, Johnson, Tompkins, Burr and Smith, P.L.C., Gulf Breeze, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the First District Court of Appeal in Nix v. Nix, 930 So.2d 711 (Fla. 1st DCA 2006), in which the district court certified the following question to be of great public importance:

IS A SPOUSE WHO IS AWARDED A PORTION OF THE OTHER SPOUSE’S PENSION AT THE TIME OF DISSOLUTION ENTITLED TO SHARE IN A DROP ACCOUNT CREATED, INCLUDING INTEREST AND COLAS, SOMETIME AFTER THE DISSOLUTION HAS BECOME FINAL?

Id. at 714. However, upon further consideration, we exercise our discretion and discharge jurisdiction. The issue certified is not applicable to this case and any decision by this Court would only be advisory. See State v. Schebel, 723 So.2d 830, 830 (Fla.1999); Interlachen Lakes Estates, Inc. v. Brooks, 341 So.2d 993, 995 (Fla.1976). In addition, the issue involving the formula to be used to determine the retirement share of the wife was resolved by the parties in their stipulation. For these reasons, this review proceeding is hereby dismissed.

It is so ordered.

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

ANSTEAD, J., concurs in result only.


text:
    Jessie Levon DYSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1762.
    Supreme Court of Florida.
    May 31, 2007.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Richard L. Polin, Bureau Chief Criminal Appeals and Laura Moszer, Assistant Attorney General, Miami, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in Dyson v. State, 934 So.2d 548 (Fla. 3d DCA 2006), based on alleged express and direct conflict with Hale v. State, 630 So.2d 521 (Fla.1993), and State v. Ferreira, 840 So.2d 304 (Fla. 5th DCA 2003). Upon further consideration we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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


author: PER CURIAM. BELL, J.,

text:
    ADVISORY OPINION TO The ATTORNEY GENERAL RE PROHIBITING STATE SPENDING FOR EXPERIMENTATION THAT INVOLVES THE DESTRUCTION OF A LIVE HUMAN EMBRYO.
    Nos. SC06-2286, SC07-54.
    Supreme Court of Florida.
    May 31, 2007.

      Bill McCollum, Attorney General and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, FL, for Petitioner.
    Major B. Harding and Stephen C. Emmanuel of Ausley and McMullen, Tallahassee, FL, for Citizens for Science and Ethics, Inc., Sponsor.
   PER CURIAM.

The Attorney General of Florida has requested this Court’s opinion as to the validity of an initiative petition circulated pursuant to article XI, section 3 of the Florida Constitution, including the corresponding financial impact statement. We have jurisdiction. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. For the reasons expressed below, we approve the amendment, ballot title and summary, and the financial impact statement for placement on the ballot.

I. FACTS

On November 9, 2006, the Attorney General received a ballot initiative from the Secretary of State seeking to amend the Florida Constitution to prohibit state funding of research that destroys a live human embryo. This amendment is sponsored by Citizens for Science and Ethics, Inc. The full text of the proposed amendment reads as follows:

Be it enacted by the people of Florida that a new section for Article X of the Constitution is created to add the following:
No revenue of the state shall be spent on experimentation that involves the destruction of a live human embryo.

The ballot title for the proposed amendment is “Prohibiting State Spending For Experimentation That Involves The Destruction of a Live Human Embryo.” The summary for the proposed amendment states: “No revenue of the state shall be spent on experimentation that involves the destruction of a live human embryo.”

The Financial Impact Statement for this proposed amendment, as prepared by the Financial Impact Estimating Conference, provides as follows: “This amendment is not expected to have an impact on state or local government expenses.”

II. GOVERNING LAW

The citizen ballot initiative process is recognized in the Florida constitution:

The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith.

Art. XI, § 3, Fla. Const.

The process begins when the sponsoring party files a petition and a copy of the proposed amendment with the custodian of state records, the Secretary of State. Id. Accompanying this petition are signatures collected from electors across the state. Id. Once the Secretary of State verifies that the threshold number of valid signatures has been reached, notice of the initiative is sent to the Attorney General, who then must request an advisory opinion from this Court. Art. IV, § 10, Fla. Const.; § 16.061, Fla. Stat. (2006). The advisory opinion is to address the ballot initiative’s compliance with article XI, section 3 of the Florida Constitution, which requires that an amendment by ballot touch upon “one subject and matter directly connected therewith.” Art. IV, § 10, Fla. Const.

Through prior case law and advisory opinions, this Court has explained its standard of review as follows:

The Court’s inquiry, when determining the validity of initiative petitions, is limited to two legal issues: whether the petition satisfies the single-subject requirement of article XI, section 3, Florida Constitution, and whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to section 101.161, Florida Statutes (1999).

Advisory Op. to the Att’y Gen. re Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So.2d 888, 890 (Fla.2000) (citing Advisory Op. to the Att’y Gen. re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 565 (Fla.1998); Advisory Op. to the Att’y Gen. re Prohibiting Pub. Funding of Political Candidates’ Campaigns, 693 So.2d 972, 974 (Fla.1997)).

When reviewing a proposed amendment to determine compliance with the single subject and ballot summary requirements, this Court has stated that it will “not address the merits or wisdom of the proposed amendment.” Advisory Op. to the Att’y Gen. re Fla. Marriage Prot. Amendment, 926 So.2d 1229, 1233 (Fla.2006) (citing Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So.2d at 891). Additionally:

[W]e have recognized that we “must act with extreme care, caution, and restraint before [we] remove[ ] a constitutional amendment from the vote of the people.” Askew v. Firestone, 421 So.2d 151, 156 (Fla.1982). In elaborating on this latter principle, we have noted that “the Court has no authority to inject itself in the process, unless the laws governing the process have been ‘clearly and conclusively’ violated.” Advisory Opinion to the Attorney Gen. re Right to Treatment & Rehab. for Non-Violent Drug Offenses, 818 So.2d 491, 498-99 (Fla.2002). It is within the framework of these fundamental principles that we review ... proposed amendments] and ballot language.

Fla. Marriage Prot. Amendment, 926 So.2d at 1233 (second and third alterations in original).

A. Single-Subject Rule

The single-subject requirement has two components: “(1) it prevents ‘logrolling,’ a practice that combines separate issues into a single proposal to secure passage of an unpopular issue; and (2) it ‘prevents] a single constitutional amendment from substantially altering or performing the functions of multiple aspects of government.’ “ Id. (quoting Advisory Op. to the Att’y Gen. re the Med. Liab. Claimant’s Comp. Amendment, 880 So.2d 675, 677 (Fla.2004)). To comply with the single-subject requirement, “[a] proposed amendment must manifest a ‘logical and natural oneness of purpose’ in order to satisfy the single-subject requirement.” Med. Liab. Claimant’s Comp. Amendment, 880 So.2d at 677 (quoting Fine v. Firestone, 448 So.2d 984, 990 (Fla.1984)). “This determination requires the Court to consider whether the proposed amendment affects separate functions of government, as well as how it affects other provisions of the constitution.” Id. (citing In re Advisory Op. to the Att’y Gen. — Restricts Laws Related to Discrimination, 632 So.2d 1018, 1020 (Fla.1994)).

1. Logrolling

Logrolling occurs when “several separate issues are rolled into a, single initiative in order to aggregate votes or secure approval of an otherwise unpopular issue.” In re Advisory Op. to Att’y Gen. — Save Our Everglades, 636 So.2d 1336, 1339 (Fla.1994). Thus, part of the goal of this Court’s single-subject scrutiny is to “avoid voters having to accept part of a proposal which they oppose in order to obtain a change which they support.” Fine, 448 So.2d at 993. The Court uses a “oneness of purpose” standard, which looks at whether a proposed amendment “may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme. Unity of object and plan is the universal test.” Id. at 990 (quoting City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318, 320 (1944)).

We find that the proposed amendment only addresses one subject, the prohibition of the state funding of experimentation that involves the destruction of a live human embryo. It does not reach any other subject and does not constitute logrolling.

2. Altering or Performing the Functions of Multiple Branches of Government

A single-subject violation can also occur when a proposed amendment “alters or performs the functions of multiple branches of government.” Fla. Marriage Prot. Amendment, 926 So.2d at 1235. We have clarified that “[a] proposal that affects several branches of government will not automatically fail; rather, it is when a proposal substantially alters or performs the functions of multiple branches that it violates the single-subject test.” Advisory Op. to the Att’y Gen. re Fish & Wildlife Conservation Comm’n, 705 So.2d 1351, 1353-54 (Fla.1998) (emphasis added) (citing Save Our Everglades, 636 So.2d at 1340). This Court has also repeatedly emphasized that the rationale of the single-subject restriction in general is to guard against “precipitous” or “cataclysmic” changes to the government structure. See, e.g., Advisory Op. to Atty. Gen. re Additional Homestead Tax Exemption, 880 So.2d 646, 650 (Fla.2000).

While we recognize that the proposed amendment, if enacted, appears to limit the authority of the legislative and executive branches of state government, we conclude that this proposed amendment does not substantially alter or perform the functions of multiple branches of government. Accordingly, since it also does not logroll any issues, we find no violation of the single-subject rule.

B. Ballot Title and Summary

The title and ballot summary of any proposed amendment must comply with section 101.161, Florida Statutes, which states:

Whenever a constitutional amendment or other public measure is submitted to the vote of the people, the substance of guch amendment or other public measure shall be printed in clear and unambiguous language on the ballot ... followed by the word “yes” and also by the word “no,” .... Except for amendments and ballot language proposed by joint resolution, the substance of the amendment ... shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.... The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.

§ 101.161(1), Fla. Stat. (2006).

The “clear and unambiguous” requirement ensures that a voter has notice of the subject matter and issues addressed by the proposed amendment. See Fla. Marriage Prot. Amendment, 926 So.2d at 1236 (quoting Save Our Everglades, 636 So.2d at 1341). In evaluating a proposed amendment:

The proper analysis to assess whether [the] ballot title and summary meet this requirement focuses on two questions: (1) whether the ballot title and summary, in clear and unambiguous language, fairly inform the voter of the chief purpose of the amendment; and (2) whether the language of the title and summary, as written, misleads the public.

Id. at 1236 (citing Additional Homestead Tax Exemption, 880 So.2d at 651-52). The ballot title and summary do not have to discuss every detail or consequence of the amendment, but they must be sufficiently “accurate and informative.” Advisory Op. to the Att’y Gen. re Protect People From Health Hazards of Using Tobacco, 926 So.2d 1186, 1194 (Fla.2000).

The summary and the proposed constitutional amendment are identical and provide as follows: “No revenue of the state shall be spent on experimentation that involves the destruction of a live human embryo.” The ballot title is nearly identical and reads, “Prohibiting state spending for experimentation that involves the destruction of a live human embryo.” Accordingly, both prongs of the summary analysis are easily satisfied since the entire amendment also serves as the summary to be placed on the ballot. We find no basis to reject the proposed summary and ballot title under section 101.161, Florida Statutes.

C. Financial Impact Statement

This Court must also determine whether the financial impact statement complies with the requirements provided in the Florida Constitution and the statute. Article XI, section 5, Florida Constitution, addresses financial impact statements and provides in relevant part:

(c) The legislature shall provide by general law, prior to the holding of an election pursuant to this section, for the provision of a statement to the public regarding the probable financial impact of any amendment proposed by the initiative pursuant to section 3.

Section 100.371(5), Florida Statutes (2006), now addresses the financial impact statement as follows:

(5)(a) Within 45 days after receipt of a proposed revision or amendment to the State Constitution by initiative petition from the Secretary of State, the Financial Impact Estimating Conference shall complete an analysis and financial impact statement to be placed on the ballot of the estimated increase or decrease in any revenues or costs to state or local governments resulting from the proposed initiative. The Financial Impact Estimating Conference shall submit the financial impact statement to the Attorney General and Secretary of State.
(b)3. Principals of the Financial Impact Estimating Conference shall reach a consensus or majority concurrence on a clear and unambiguous financial impact statement, no more than 75 words in length, and immediately submit the statement to the Attorney General. Nothing in, this subsection prohibits the Financial Impact Estimating Conference from setting forth a range of potential .impacts in the financial impact statement.

§ 100.371(5), Fla. Stat. (2006). In deciding the validity of a financial impact statement, the Court has limited itself only to addressing whether the statement is clear and unambiguous, consists of no more than seventy-five words, and is limited to addressing the estimated increase or decrease in any revenues or costs to the state or local governments. See Advisory Op. re Protect People from Health Hazards of Using Tobacco, 926 So.2d at 1194. In the cases where this Court found the financial impact statement to be defective, it was because the statement did not comply with these specific requirements. See, e.g., Advisory Op. to Att’y Gen. re Repeal of High Speed Rail Amendment, 880 So.2d 628, 629 (Fla.2004) (rejecting the proposed financial impact statement because certain provisions were not expressed in terms of the “probable financial impact” and because the statement went beyond addressing “revenues or costs to state or local governments”); Advisory Op. to the Att’y Gen. re Pub. Prot. from Repeated Med. Malpractice, 880 So.2d 686, 687 (Fla.2004) (rejecting the proposed financial impact statement because phrase “range of potential impacts” in section 100.371(6)(b)(3) must relate to the phrase “probable financial impact” set forth in the constitution and the proposed statement included potential impacts beyond monetary estimates); Advisory Op. to the Att’y Gen. re Authorizes Miami-Dade & Broward County Voters to Approve Slot Machines in Parimutuel Facilities, 880 So.2d 689, 690 (Fla.2004) (same).

The financial impact statement for this proposed amendment states: “This amendment is not expected to have an impact on state or local government expenses.” The instant financial impact statement is well within the 75-five word limit and it clearly and unambiguously conveys that the amendment will not impact state or local government expenses. . We find no basis to reject the financial impact statement under section 100.371(6).

III. CONCLUSION

For the reasons stated, we hold that the initiative petition and proposed ballot title and summary for the amendment “Prohibiting state spending for experimentation that involves the destruction of a live human embryo” meets the legal requirements of article XI, section 3 of the Florida Constitution, and section 101.161(1), Florida Statutes (2006). Likewise, the accompanying financial impact statement is in accordance with section 100.371(5), Florida Statutes (2006). Accordingly, we approve the amendment and financial impact statement for placement on the ballot.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, and QUINCE, JJ., concur.

BELL, J., concurs in part and dissents in part with an opinion, in which CANTERO, J., concurs.

BELL, J.,

concurring in part and dissenting in part.

I concur with the approval of the initiative petition. However, I dissent as to this Court’s review and approval of the financial impact statement. I do so because I conclude that we do not have jurisdiction to render advisory opinions concerning the validity of financial impact statements. See art. IV, § 10, art. V, § 3(b)(10), art. XI, §§ 3, 5, Fla. Const. In other words, I believe that this Court’s jurisdiction to render an advisory opinion is limited to the initiative petition itself and does not encompass the separate financial impact statement.

CANTERO, J., concurs.

      . No briefs were filed in opposition to this proposed amendment


text:
    T. Patton YOUNGBLOOD, Jr., Petitioner, v. ESTATE OF Reinaldo VILLANUEVA, etc., et al., Respondents.
    No. SC06-1205.
    Supreme Court of Florida.
    June 7, 2007.

      Scot Eliot Samis of Abbey, Adams, Byel-ick, Kiernan, Mueller and Lancaster, LLP., St. Petersburg, FL, for Petitioner.
    Kennan G. Dandar of Dandar and Dan-dar, P.A., Tampa, FL, for Respondent.
   PER CURIAM.

We initially accepted review in Estate of Villanueva v. Youngblood, 927 So.2d 955 (Fla. 2d DCA 2006), based on alleged conflict with Michalek v. Shumate, 524 So.2d 426 (Fla.1988); Castillo v. Bickley, 363 So.2d 792 (Fla.1978); Fought v. Mullen, 609 So.2d 726 (Fla. 5th DCA 1992); Roberts v. United States Fidelity & Guaranty Co., 498 So.2d 1037 (Fla. 1st DCA 1986); Smilowitz v. Russell, 458 So.2d 406 (Fla. 3d DCA 1984); and Fahey v. Raftery, 353 So.2d 903 (Fla. 4th DCA 1977). Upon further consideration, however, we find that jurisdiction was improvidently granted in this case. Accordingly, we hereby dismiss review of this cause.

It is so ordered.

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


author: LEWIS, C.J. PARIENTE, J.,

text:
    Madison MAYS, Petitioner, v. STATE of Florida, Respondent.
    No. SC04-2149.
    Supreme Court of Florida.
    June 7, 2007.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, FL, for Respondent.
   LEWIS, C.J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Mays v. State, 887 So.2d 402 (Fla. 2d DCA 2004). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Baez v. State, 814 So.2d 1149 (Fla. 4th DCA 2002), quashed, 894 So.2d 115 (Fla.2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The issue presented by the decision under review is controlled by our recent decision in Golphin v. State, 945 So.2d 1174 (Fla.2006), petition for cert. filed, 75 U.S.L.W. 3512 (U.S. Mar. 9, 2007) (No. 06-1251). Therefore, we exercise our jurisdiction to grant the petition for review, and, in accordance with Golphin, we approve the decision below.

It is so ordered.

WELLS, CANTERO, and BELL, JJ., concur.

PARIENTE, J. specially concurs with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

PARIENTE, J.,

specially concurring.

The question in this case is whether police may retain an individual’s identification to run a warrants check when there is no reasonable suspicion of criminal activity. Mays concedes that there is no practical difference between the factual circumstances in his case and those facts presented in our recent decision in Golphin v. State, 945 So.2d 1174 (Fla.2006). I therefore agree that this case is controlled by Golphin, in which a 4-3 majority of this Court concluded that retaining the license of a pedestrian to run a warrants check did not in itself turn a consensual encounter into an unlawful detention. However, I note that because Golphin did not preserve the issue, the majority expressly declined to consider “whether or not Golphin after consensually and voluntarily producing identification specifically consented to Officer Doemer using that identification in his presence to conduct a warrants check or how the lack of any such consent might impact the analysis in this case.” Id. at 1182-83. The majority also recognized that “[cjircumstances may exist in which an officer’s conduct exceeds the scope of consent that reasonably can be implied by the act of handing over one’s identification, and such circumstances may indicate that a seizure has occurred.” Id. at 1183. Accordingly, I reiterate that Golphin does not “hold as a matter of law that whenever a citizen voluntarily relinquishes his or her identification card to a police officer, the officer may retain it to conduct a warrants check without triggering the protections of the Fourth Amendment.” Id. at 1196 (Par-iente, J., concurring in result only).

Indeed, I expressed my view in Golphin that an individual’s consent to provide an officer with identification does not neees-sarily include consent for the officer to retain the identification to run a warrants check. See id. at 1201 n. 18. This is consistent with the United States Supreme Court’s pronouncement that “[i]n the absence of any basis for suspecting [a person] of misconduct, the balance between the public interest and [the] right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

I also reiterate my concern “about our freedom as Americans to lawfully move about without attracting the unwanted and coercive attention of the authorities.” Golphin, 945 So.2d at 1202 (Pariente, J., concurring in result only). Troubling statistics released by the New York City Police Department show that the number of people stopped on the streets in that city increased from 97,296 in 2002 to 508,540 in 2006. See A1 Baker, 6-Month Study to Review “Stop and Frisks” by New York Police, N.Y. Times, March 1, 2007, at Bl. A special report recently released by the Department of Justice shows that 43.5 million United States residents had face-to-face contact with the police in 2005. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Contacts between Police and the Public, 2005 1 (2007).

I remain concerned that little by little we continue to chip away at the protections of the Fourth Amendment that are designed to protect our citizens from unreasonable searches and seizures. This is not a theoretical problem but rather a tangible issue that goes to the core of the constitutional rights we as a country hold so dear.

ANSTEAD and QUINCE, JJ., concur.

      . The New York City Police Department has commissioned an independent study of the way it stops people on the street that will focus on the role that race plays in these police-citizen encounters. See id. I previously noted that "[o]ne of the most disturbing features of suspicionless warrants checks is that the intrusion tends to fall disproportionately on particular ethnic and racial groups.” Golphin, 945 So.2d at 1202 n. 20 (Pariente, J., concurring in result only).


author: BELL, J.

text:
    Dewarn Antonio BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-628.
    Supreme Court of Florida.
    June 14, 2007.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, and Maria T. Armas, Assistant Attorney General, Miami, FL, for Respondent.
   BELL, J.

Dewarn Antonio Brown seeks review of the decision of the Third District Court of Appeal in State v. Brown, 924 So.2d 86 (Fla. 3d DCA 2006), on the ground that it expressly and directly conflicts with the decisions of this Court in Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981). The decisions are in conflict regarding whether a defendant’s convictions for the legally interlocking charges of (1) felony murder and (2) the lesser included misdemeanor of the separately charged underlying felony are true inconsistent verdicts. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained below, we hold that a defendant’s convictions for felony murder and for the lesser included misdemeanor of the separately charged underlying felony are true inconsistent verdicts. Accordingly, we quash the Third District’s contrary determination.

FACTUAL AND PROCEDURAL BACKGROUND

“Brown was charged with armed robbery and first degree felony (robbery) murder in the shooting death of a participant in a drug deal whose wallet the defendant and two co-perpetrators were attempting to steal.” Brown, 924 So.2d at 87. After agreeing to rob the victim, Brown and his two co-perpetrators proceeded into an abandoned building, where the victim was waiting. While one co-perpetrator hit the victim, Brown and the other co-perpetrator searched the victim for money. The co-perpetrator who had been hitting the victim possessed a gun, which discharged during the struggle. After the gun fired, Brown panicked and left the premises while his two co-perpetrators continued struggling to retrieve the victim’s money. The wallet was later found in a dumpster a short distance away from the scene.

As reflected in the jury verdict form, Brown was charged with two legally interlocking offenses. Count I included the charged offense of first-degree murder as well as the lesser included offenses of second-degree murder and manslaughter. Count II included the charged offense of armed robbery with a firearm as well as the lesser included offenses of robbery and petit theft. Attempted robbery was not listed as a lesser included offense in count II. For first-degree felony murder in count I, the jury was instructed that the State had to prove the following three elements:

One, Andre Robert Sloate is dead. Two, the death occurred as a consequence of and while Dewarn Antonio Brown was engaged in the commission of a robbery. Or B, the death occurred as a consequence of and while Dewarn Antonio Brown was attempting to commit a robbery. Three, Andre Robert Sloate was killed by a person other than Dewarn Antonio Brown but both Dewarn Antonio Brown and the person who killed Andre Robert Sloate were principles [sic] in the commission of a robbery.

For petit theft, listed as a lesser included offense of armed robbery with a firearm in count II, the jury was instructed that the State had to prove the following two elements:

One, Dewarn Antonio Brown knowingly and unlawfully obtained, used, endeavored to obtain or endeavored to use the property of Andre Robert Sloate. And two, Dewarn Antonio Brown did so with intent to either temporarily or permanently deprive Andre Robert Sloate of his right to the property or any benefit from it.

The trial court also instructed the jury that it must consider the evidence applicable to each count separately and that it must return a separate verdict as to each.

“The jury found the defendant guilty of petit theft as a lesser included offense of the armed robbery charge and guilty of first degree felony murder.” Brown, 924 So.2d at 87. After the jury returned its verdict and was dismissed, Brown moved to vacate the felony murder conviction, arguing that it was truly inconsistent with the petit theft conviction. Thereafter, the trial court vacated Brown’s felony murder conviction as “ ‘legally inconsistent’ with the theft conviction, on the theory that an acquittal of armed robbery, implied by the guilty verdict of the ‘lower’ offense of theft, precluded the finding that the defendant had committed that felony, as required for a felony murder conviction.” Id.

The Third District reversed and instructed the trial court to reinstate Brown’s first-degree felony murder conviction. Id. at 88. The Third District reasoned that “the defendant [was] precluded even from claiming a fatal inconsistency between the verdicts ... because he endorsed and supported the trial judge’s charge to the jury, in accordance with the standard jury instruction, that the evidence as to each of the counts must be ‘considered separately and a separate verdict returned as to each.’ ” Id. at 87 (quoting Fla. Std. Jury Instr. (Crim) 3.12(a)). Further, relying on this Court’s opinion in Pitts v. State, 425 So.2d 542 (Fla.1983), the Third District determined that the verdicts are not truly inconsistent. The Third District stated:

On the merits, there is no true legal inconsistency because of the rational possibility (which is, in fact, consistent with the evidence in this case) that the guilty verdict as to first degree felony murder was based on a finding that, as the felony statute provides and as the jury was instructed, the death occurred in the course of an attempted robbery, rather than a completed one. Because attempted robbery was not instructed upon as a lesser included offense of the robbery count, and was thus not rejected by the jury, the two verdicts logically can be reconciled, thus requiring reversal.

Brown, 924 So.2d at 87-88 (citations omitted).

ANALYSIS

Brown argues that the verdicts for misdemeanor petit theft and for first-degree felony murder are truly inconsistent. An inconsistent verdicts claim presents a pure question of law and is reviewed de novo. See Dial v. State, 922 So.2d 1018, 1020 (Fla. 4th DCA 2006). This Court has described the general principles regarding inconsistent jury verdicts in the following manner:

As a general rule, inconsistent jury verdicts are permitted in Florida. Eaton v. State, 438 So.2d 822 (Fla.1983); Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946); Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA), review dismissed, 444 So.2d 417 (Fla.1983). Inconsistent verdicts are allowed because jury verdicts can be the result of lenity and therefore do not always speak to the guilt or innocence of the defendant. See Eaton, 438 So.2d at 823....
This Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception, referred to as the “true” inconsistent verdict exception, comes into play when verdicts against one defendant on legally interlocking charges are truly inconsistent. As Justice Anstead explained when writing for the Fourth District Court of Appeal in Gonzalez, true inconsistent verdicts are “those in which an acquittal on one count negates a necessary element for conviction on another count.” 440 So.2d at 515. For example, this Court has required consistent verdicts when
the underlying felony was a part of the crime charged — without the underlying felony the charge could not stand. The jury is, in all cases, required to return consistent verdicts as to the guilt of an individual on interlocking charges.
Eaton, 438 So.2d at 823; see Mahaun v. State, 377 So.2d 1158 (Fla.1979) (verdict of guilty as to felony-murder set aside where jury failed to find defendant guilty of the underlying felony); Redondo v. State, 403 So.2d 954 (Fla.1981) (defendant could not be convicted of unlawful possession of a firearm during a commission of felony where the jury failed to find the defendant guilty of any felony). An exception to the general rule is warranted when the verdicts against a single defendant are truly inconsistent because the possibility of a wrongful conviction in such cases outweighs the rationale for allowing verdicts to stand.

State v. Powell, 674 So.2d 731, 732-33 (Fla.1996).

More specifically, in Mahaun and Re-dondo, this Court explained that convictions for lesser included misdemeanors of a separately charged underlying felony negate the essential underlying felony element of felony murder. In Mahaun, Patricia Mahaun was convicted of third-degree felony murder and misdemeanor culpable negligence. Mahaun, 377 So.2d at 1159. This Court stated that “Mrs. Mahaun’s conviction for culpable negligence effectively holds her innocent of the aggravated child abuse charge.” And, “[bjeeause the aggravated child abuse felony was an essential element of the felony murder,” this Court vacated Mrs. Mahaun’s felony murder conviction. Id. at 1161. Similarly, in Redondo, the jury convicted Redondo of misdemeanor simple battery and possession of a firearm during the commission of a felony. Redondo, 403 So.2d at 955. This Court explained that “the jury in effect acquitted petitioner of the felonies of aggravated battery, and attempted aggravated battery when it found [Redondo] guilty of the lesser included offense of simple battery, a misdemeanor.” Id. at 956. We held that Redondo could not be convicted of the possession count since “[t]he existence of a felony or an attempted felony is an essential element of the crime of unlawful possession of a firearm during the commission of a felony.” Id.

Based upon the decisions in Mahaun and Redondo, the jury in Brown returned true inconsistent verdicts. The jury found Brown guilty of petit theft as a lesser included misdemeanor of the separately charged underlying felony and guilty of first-degree felony murder. By finding Brown guilty of a lesser included misdemeanor of the separately charged underlying felony, the jury effectively acquitted him of the essential felony element of first-degree felony murder. In other words, an essential element of felony murder was missing by virtue of the jury’s other verdict. Therefore, the verdicts for first-degree felony murder and petit theft are truly inconsistent.

The State asks this Court to approve the Third District’s finding that no true inconsistency exists in Brown based upon this Court’s decision in Pitts v. State, 425 So.2d 542 (Fla,1983). The State argues that based upon Pitts the jury’s verdicts can be reconciled by determining that the jury found Brown guilty of felony murder by way of attempted robbery, a finding that the State argues is consistent with the evidence and the jury instructions. However, we decline to uphold the verdicts based upon Pitts.

In Pitts, this Court upheld jury verdicts finding the defendant not guilty of aggravated battery and guilty of possession of a firearm during the commission of the aggravated battery. Id. at 543. We held that “the jury’s acquittal on the aggravated battery charge did not preclude its finding of guilt on the possession--charge” since a finding of attempted aggravated battery would be sufficient to supply the felony element of the possession charge. Id. This Court then stated that “while the jury made no explicit finding of an attempted aggravated battery, it [was] a logical and plausible inference on their part based on the evidence before them.” Id. However, in Pitts, “the jury made no such affirmative finding that defendant was guilty of a lesser included offense of the crime of aggravated battery.” Id. at 544. We explained in Pitts that “[s]uch a finding would have brought [Pitts ] within the ambit of our holdings in Mahaun and Re-dondo.” Id. Therefore, Pitts expressly explains that if the jury finds the defendant guilty of a lesser included offense of the separately charged underlying felony, Ma-haun and Redondo apply and not Pitts. In this case, the jury in fact did make an affirmative finding that Brown was guilty of a lesser included offense of armed robbery, namely petit theft. Because the jury found Brown guilty of petit theft rather than simply acquitting him of armed robbery, this case falls within the ambit of our holdings in Mahaun and Redondo.

To summarize, based on Mahaun and Redondo, Brown’s jury verdicts are truly inconsistent because the jury’s verdict finding Brown guilty of a lesser included misdemeanor of the separately charged underlying felony negated the essential felony element of first-degree felony murder. Accordingly, we quash the Third District’s determination that there is no true inconsistency.

A brief explanation of the rationale or policy behind the true inconsistent verdicts exception will better explain our decision. We do not permit truly inconsistent verdicts “because the possibility of a wrongful conviction in such cases outweighs the rationale for allowing verdicts to stand.” Powell, 674 So.2d at 733. As the Third District observed, it is certainly possible that, despite the jury finding Brown guilty of petit theft in the separate offense, Brown’s jury based its. verdict regarding felony murder on a finding of attempted robbery. This reasoning rests upon the fact that attempted robbery was included in the .felony murder instruction as an alternative to armed robbery as the underlying felony but was not listed on the verdict form as a lesser included offense in the , separate armed robbery count. Therefore, Brown’s jury was not given the opportunity to choose attempted robbery as a lesser included offense in count II. On the other hand, since the jury found Brown guilty of-a lesser included misdemeanor of the separately charged underlying felony, it is also possible that the two verdicts are irreconcilable. If so, then Brown was wrongfully convicted of felony murder. Applying our reasoning in Powell to thesé facts, because the possibility of a wrongful conviction exists in this case, the rationale permitting inconsistent verdicts is outweighed. The felony murder verdict must be set aside. The ambiguity in these inconsistent verdicts was primarily created by the unexplained omission of attempted robbery as a possible lesser included offense in count II. The State, not the defendant, must bear the burden of this omission.

In light of the above reasoning, we address the Third District’s holding that Brown’s assent to Florida Standard Jury Instruction (Criminal) 3.12(a) waived his right to object to the inconsistent verdicts. The State argues that this Court should approve the Third District’s holding because Brown invited the true inconsistent verdicts error by assenting to the instruction that the jury consider each count separately. While we agree that Brown assented to the misleading instruction, we do not agree that, in this particular case, Brown’s assent to the instruction waived his right to object to the true inconsistent verdicts. The true inconsistent verdicts error in this case did not result solely from the misleading instruction. This error also resulted from the omission of attempted robbery in the armed robbery count on the verdict form. As discussed above, attempted robbery was included in the felony murder instruction as an alternative to armed robbery as the underlying felony but was not listed as a lesser included offense in the separate armed robbery count. And, as discussed above, the State must bear the burden of ensuring parallel verdict forms for legally interlocking counts. In light of this, given that the nonparallel verdict forms also significantly contributed to the true inconsistent verdicts, we find that Brown’s assent to instruction 3.12(a) did not waive his right to object to the subsequent verdict. Given this finding, we quash the Third District’s contrary holding.

CONCLUSION

The verdicts finding Brown guilty of first-degree felony murder and guilty of the lesser included misdemeanor (petit theft) of the separately charged underlying felony (armed robbery) are truly inconsistent. Moreover, because the nonparallel verdict forms significantly contributed to these true inconsistent verdicts, Brown did not waive the error by assenting to instruction 3.12(a). Accordingly, we quash the Third District’s decision in State v. Brown, 924 So.2d 86 (Fla. 3d DCA 2006), and remand with directions to reinstate the trial court’s order.

It is so ordered.

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

      . With legally interlocking counts, instruction 3.12(a) misleads the jury. If the counts are legally interlocking, by definition, the jury should not consider each count separately. This issue, and the suggestion of a new alternative jury instruction, was raised many years ago by Judge Harris of the Fifth District. See Cuevas v. State, 741 So.2d 1234, 1240 (Fla. 5th DCA 1999) (Harris, J., concurring specially). We request that the Committee on Standard Jury Instructions in Criminal Cases consider this issue and propose to the Court an alternative instruction which would address the situation of legally interlocking counts.


author: QUINCE, J. PARIENTE, J., BELL, J.,

text:
    Rose G. CAMPBELL, Petitioner, v. Clivens GOLDMAN, Respondent.
    No. SC06-611.
    Supreme Court of Florida.
    June 14, 2007.

      Richard A. Sherman, Sr., P.A., Fort Lauderdale, FL, Samuel Tyler Hill of Hill and Lemongello, P.A., Fort Lauderdale, FL, and Charles W. Hall and Mark D. Tinker of Fowler, White, Boggs, and Banker, P.A., St. Petersburg, FL, for Petitioner.
    Arnold R. Ginsberg of Ginsberg and Schwartz, Miami, FL, and Nicole Sophia Freedlander of Nelson and Freedlander, Miami, FL, for Respondent.
   QUINCE, J.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006). The district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in McMullen Oil Co. v. ISS International Service System, Inc., 698 So.2d 372 (Fla. 2d DCA 1997), and the First District Court of Appeal in Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the following reasons, we quash the decision of the Fourth District and approve McMullen Oil Co. and Pippin.

FACTS AND PROCEDURAL HISTORY

In a civil action between Clivens Goldman as plaintiff and Rose G. Campbell as defendant, a notice of filing of plaintiffs proposal for settlement for $10,000 was served on the defendant on August 13, 1999, and again on November 17, 2003. The proposal was never accepted, nor was it filed with the trial court. More notably, the proposal made reference to Florida Rule of Civil Procedure 1.442 but did not cite the applicable statute, section 768.79, Florida Statutes (2003). On May 27, 2004, the jury returned a verdict in favor of plaintiff in the amount of $18,900, and the trial court entered a final judgment for that amount. This judgment met the statutory requirement that the recovery must be at least twenty-five percent greater than the settlement offer in order for the plaintiff to be entitled to attorney’s fees and costs. See Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006).

Goldman filed a motion for attorney fees and costs after recovering the net verdict and judgment, and the trial court denied the motion. On appeal, the Fourth District noted, “An offer of settlement must comply with both rule 1.442 and section 768.79.” Goldman, 920 So.2d at 1265. The district court indicated, citing to Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003), that both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney’s fees. Finally, the district court said the statute and the rule must be strictly construed pursuant to Sarkis v. Allstate Insurance Co., 863 So.2d 210, 218 (Fla.2003); Major League Baseball v. Morsani, 790 So.2d 1071, 1078-79 (Fla.2001), and TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 615 (Fla.1995). The district court noted, “Following this principle of strict construction, we have found settlement proposals invalid when they did not comply with the statutory and rule requirements.” Goldman, 920 So.2d at 1265 (citing Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262, 265 (Fla. 4th DCA 2000)). The district court also noted that other district courts have “similarly struck proposals.” Goldman, 920 So.2d at 1266 (citing Connell v. Floyd, 866 So.2d 90, 92 (Fla. 1st DCA 2004); McMullen Oil Co. v. ISS Int’l Serv. Sys., Inc., 698 So.2d 372, 373 (Fla. 2d DCA 1997); Pippin v. Latosynski, 622 So.2d 566, 569 (Fla. 1st DCA 1993)).

Despite its acknowledgment of the requirements of the applicable rule and statute, the Fourth District adopted the Fifth District’s view of these requirements as espoused in Spruce Creek Development Co. of Ocala, Inc. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999). In Spruce Creek, the Fifth District found the failure of the settlement proposal to cite to the rule “an insignificant technical violation of the rule.” Id. at 1116. The Fourth District, however, certified conflict with Pippin v. Latosynski, 622 So.2d 566 (Fla. 1st DCA 1993), and McMullen Oil Co. v. ISS International Service System, Inc., 698 So.2d 372 (Fla. 2d DCA 1997), both of which held under similar circumstances that the failure to cite to the applicable statute was error.

DISCUSSION

Campbell maintains this Court should follow Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), and Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), which reaffirmed the “bright line rule” regarding strict construction of the offer of judgment statute and rule. Thus, Campbell contends this Court should reverse the decision of the district court. Conversely, Goldman argues strict construction should be applied whenever substantive, not procedural matters are implicated and thus the decision should be approved. The question before this Court is one of law subject to the de novo standard of review. See S. Baptist Hosp. of Fla. v. Welker, 908 So.2d 317 (Fla.2005). The issue here involves the settlement proposal and whether it was valid even though it did not reference section 768.79.

The settlement proposal in this case referenced Florida Rule of Civil Procedure 1.442, entitled “Proposals for Settlement.” Specifically, rule 1.442(a) reads in pertinent part as follows:

This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.

Rule 1.442(c), entitled “Form and Content of Proposal for Settlement,” provides in pertinent part: “(1) A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.” (Emphasis added.) In addition to rule 1.442, offers to settle are addressed by statute in section 768.79, Florida Statutes (2006). Section 768.79 is entitled “Offer of judgment and demand for judgment” and reads in relevant part as follows:

(1) In any civil action for damages filed in the courts of this state, ... [i]f a plaintiff filed a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand....
(2) ... An offer must:
(a) Be in writing and state that it is being made pursuant to this section.

(Emphasis added.) Thus, both rule 1.442 and section 768.79 require an offer to settle to be in writing and to include a citation to the statute, i.e., the applicable Florida law.

As the Fourth District noted, both rule 1.442 and section 768.79 are in derogation of the common law rule that parties are responsible for their own attorney’s fees, and thus the statute and rule must be strictly construed. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003). Nonetheless, the Fourth District adopted the reasoning in Spruce Creek and found the omission of reference to the statute to be a mere technical violation. The district court erred in so holding.

Recently in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003), this Court addressed rule 1.442 and section 768.79 in the context of whether an offer of settlement to multiple parties must apportion the amounts applicable to each. In answering the question presented, we examined section 768.79 in its entirety and noted that this section was implemented by rule 1.442. We further noted that the rule was amended in 1996 to require greater detail in settlement proposals. See In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 107 (Fla.1996) (effective Jan. 1, 1997). We specifically found the language of the statute and rule must be strictly construed because the offer of judgment statute and rule are in derogation of the common law rule that each party pay its own fees. Willis Shaw, 849 So.2d at 278. We held: “[U]nder the plain language of rule 1.442(c)(3), an offer from multiple plaintiffs must apportion the offer among the plaintiffs.” Willis Shaw, 849 So.2d at 279; see also Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005) (reaffirming a strict construction of rule 1.442).

We find that the holding in Willis Shaw and Lamb regarding strict construction of the language in the offer of judgment statute and rule at issue in those cases is equally as applicable to the language from rule 1.442 and section 768.79 concerning the requirements of citing authority. Contrary to Goldman’s assertions, strict construction is applicable to both the substantive and procedural portions of the rule and statute. When read together the rule and statute provide parties with an unambiguous method for obtaining attorney fees. Section 768.79 provides a sanction against a party who unreasonably rejects a settlement offer. See Willis Shaw, 849 So.2d at 278. The plain language of the statute provides that an offer must state it is being made pursuant to this section. This is a mandatory requirement for this penal, fee-shifting provision. Because the overall subject is in derogation of the common law, all portions must be strictly construed. The district court erred in failing to strictly construe the plain language of the rule and statute.

CONCLUSION

Based on the plain language of section 768.79, an offer of settlement must state the statute on which it is based. Thus, we quash the decision of the Fourth District and approve McMullen Oil and Pippin to the extent that they are consistent with our decision.

It is so ordered.

LEWIS, C.J., and WELLS and CANTERO, JJ., concur.

PARIENTE, J., specially concurs with an opinion, in which ANSTEAD, J., concurs.

BELL, J., concurs in result only with an opinion.

PARIENTE, J.,

specially concurring.

I reluctantly agree with the majority that the plain language of section 768.79, Florida Statutes (2006), and Florida Rule of Civil Procedure 1.442(c) requires that an offer of settlement cite the Florida law on which it is based. Thus, a party submitting a proposal for settlement under the statute and rule is on clear notice that reference must be made to section 768.79.

My reluctance is a result of the inescapable logic of the Fourth District’s opinion. See Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006). There is now only one statute governing offers of judgments implemented by rule 1.442. See Sarkis v. Allstate Ins. Co., 863 So.2d 210, 219 n. 6 (Fla.2003). Thus, the requirement that the offer reference the statute on which it is based no longer has any true meaning, especially in a case such as this one, where although the plaintiff omitted the reference to the statute, the plaintiff specified that the offer of judgment was made pursuant to rule 1.442. Certainly, there was no lack of clarity, uncertainty, or confusion in this offer. Nor can it be said that failing to allow attorney’s fees when there is such a “technical violation” vindicates the primary goal of the statute and rule, which is to “encourage settlements in order to eliminate trials if possible.” Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989).

Over the years I have expressed concern about whether either the rule or the statute is fulfilling its intended purpose of encouraging settlement or at times is having the opposite effect of increasing litigation. See, e.g., Lamb v. Matetzschk, 906 So.2d 1037, 1042-43 (Fla.2005) (Pariente, C.J., specially concurring). Because parties will now be on notice that all “t’s” must be crossed and “i’s” dotted, there should be no further litigation on this particular issue. And because the plain language of the statute and the rule requires the reference, the majority’s resolution in this case is satisfactory. But if the past history of litigation on offers of judgment is any indication, this will not be the last time the Court must clarify the requirements of the rule and statute.

ANSTEAD, J., concurs.

BELL, J.,

concurring in result only.

I agree with the determination to quash the Fourth District’s opinion in Goldman v. Campbell, 920 So.2d 1264 (Fla. 4th DCA 2006). I also agree that the plain language of section 768.79, Florida Statutes (1999), and Florida Rule of Civil Procedure 1.442 require an offer of settlement to reference the statute upon which the offer is based. However, because the statute and the rule are clear and unambiguous, I do not believe it is appropriate to invoke the questionable derogation canon. See Goldman, 920 So.2d at 1273 (Farmer, J., concurring specially) (“There is no longer much reason to be suspicious of any legislative change in the common law because there is not much of it left unaffected by statutes.”); see also Jefferson B. Fordham & J. Russell Leach, Interpretation of Statutes in Derogation of the Common Law, 3 Vand. L.Rev. 438 (1950) (examining the questionable reasons for employing the derogation canon).

Section 768.79 is very clear and unambiguous in expressing the requirements of a settlement offer. The applicable portion of section 768.79 provides that a settlement offer must “[b]e in writing and state that it is being made pursuant to this section.” § 768.79(2)(a), Fla. Stat. (1999) (emphasis added). Thus, the statute unambiguously explains that a settlement offer must state the statute upon which the offer is based. Because “the language of the statute is clear and . unambiguous and coveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction.” A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931). Therefore, the majority’s use of the derogation canon is unnecessary and inappropriate.

Similarly, rule 1.442 is clear and unambiguous, thereby making the use of the derogation canon, or any other standard of interpretation, unnecessary and inappropriate. Rule 1.442(c)(1) unambiguously states that a settlement “proposal shall be in writing and shall identify the applicable Florida law under which it is being made.” (Emphasis added.) No confusion exists regarding the plain meaning of the rule’s language. Moreover, if this court rule was ambiguous, the standard of construction stated in rule 1.010 would apply, not the derogation canon. See Fla. R. Civ. P. 1.010 (“These rules [of civil procedure] shall be construed to secure the just, speedy, and inexpensive determination of every action.”). As Judge Farmer noted below, “the derogation canon — created for statutory changes in substantive common law — has no logical purpose or use in the interpretation of mere rules of procedure.” Goldman, 920 So.2d at 1270 (Farmer, J., concurring specially).

Accordingly, because the language of section 768.79 and rule 1.442 is clear and does not require construction, I concur in result only.

      . The district court noted that rule 1.442(c)(1) states: "A proposal [for settlement] shall be in writing and shall identify the applicable Florida law under which it is being made.” Gold

        man, 920 So.2d at 1265 (quoting rule 1.442(c)). Additionally, the district court also noted that section 768.79(6)(b) reads:
      If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.

        Id. (quoting § 768.79(6)(b)). Specifically, the district court noted:
      Subsection (2) lists the requirements of a valid settlement offer:
      (a) Be in writing and state that it is being made pursuant to this section.

      (b) Name the party making it and the party to whom it is being made.
      (c) State with particularity the amount offered to settle a claim for punitive damages, if any. (d) State its total amount.

        Id. (quoting § 768.79(2)).


text:
    FLORIDA BOARD OF BAR EXAMINERS re Allan Barry MARKS.
    No. SC06-524.
    Supreme Court of Florida.
    June 14, 2007.

      Michele A. Gavagni, Executive Director, Thomas A. Pobjeeky, General Counsel, and Robert G. Blythe, Deputy General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
    Roberto Villasante, Coral Gables, FL, for Respondent.
   PER CURIAM.

This case is before the Court on a recommendation of the Florida Board of Bar Examiners that Allan Barry Marks be admitted to The Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const.

For the reasons expressed below, we disapprove the Board’s finding that the conduct alleged in Specification 2 was not disqualifying and find the conduct was disqualifying, both individually and collectively. Further, we disapprove the Board’s recommendation that Marks be admitted to The Florida Bar and deny Marks’s application for admission.

PROCEDURAL BACKGROUND

The Florida Board of Bar Examiners (Board) filed its Public Report and Recommendation with the Court on March 17, 2006, recommending that Allan Barry Marks be admitted to The Florida Bar. Marks previously resigned from the Bar while disciplinary proceedings were pending against him, and the Court reviews the Board’s report, in accordance with Florida Bar Admission Rule 3-23.7, which provides, in pertinent part:

The Board’s findings, conclusions, and recommendation shall be final if not appealed except in cases involving a favorable recommendation for applicants seeking readmission to the practice of law after having been disbarred or having resigned pending disciplinary proceedings. In those cases, the Board shall file a report containing its recommendation with the Court for final action' by the Court. Admission to The Florida Bar for- those applicants shall occur only by public order of the Court.

Marks was initially admitted to the Bar in 1974. On December 6, 1990, this Court approved the uncontested petition for disciplinary resignation filed by Marks, which became .effective in April 1991. Marks reapplied for admission in March 1995. Following an investigation, the Board filed specifications against Marks. After a hearing on the specifications, the Board, in January 1999, issued its Findings of Fact, Conclusions of Law, and Recommendation. It found that all specifications had been proven and that they were individually and collectively disqualifying. The Board recommended that Marks be denied admission.

In. January 2001, Marks submitted a new application for admission. The Board conducted an updated background investigation and again filed specifications. The public hearing on these specifications was held on November 19, 2004. On March 10, 2005, the Board issued its Findings of Fact, Conclusions of Law, and Recommendation. It found Specification 1 had been proven and was individually disqualifying for admission. Specification 1 detailed the reasons for the Board’s decision to deny admission to Marks in 1999, which included trust account violations, Marks’s resignation in lieu of discipline, and his guilty pleas to felony grand theft charges, as well as his failure to establish rehabilitation.

The Board found Specification 2 had also been proven. Specification 2 detailed that Marks had failed to pay his federal income taxes for tax years 1996, 1997, 1998, and 1999. ■ However, the Board found the conduct alleged in Specification 2 was not disqualifying 'because his late payments of taxes were based upon financial difficulties.

The Board recommended that the admission of Marks be delayed for twelve months from the date of the hearing. At the end of twelve months, if Marks submitted proof that he had complied with the Board’s recommendation that he make additional rehabilitation efforts and continue to work with the Internal Revenue Service (IRS) for payment of his taxes, the Board would recommend his admission.

On November 2, 2005, Marks submitted Applicant’s Sworn Report to the Board outlining his rehabilitation efforts since the formal hearing on November 19, 2004. In the report, Marks presented his continued involvement with Community Blood Centers of South Florida and Recording for the Blind and Dyslexic (RFB & D), and stated that he had chaired the RFB & D Golf Tournament Committee for the fourth consecutive year and had made progress toward entering into a payment agreement with the IRS. This was followed by the Board’s Public Report and Recommendation recommending that Marks be admitted to The Florida Bar.

FACTUAL BACKGROUND

The facts established by the proven specifications show that Marks resigned from the Bar after it was discovered that he had misappropriated client money from his client trust account. The exact sum he misappropriated, although substantial, remains unknown; Marks estimated he misappropriated approximately $250,000 in twelve to fifteen withdrawals, over a period of one or more years. Marks admitted that he would withdraw money from his trust account for his personal use, would repay some of the money later, would withdraw additional money, and would later repay only some of those amounts, rendering it impossible for him to determine with precision how much he had actually misappropriated without conducting a complete audit. He misappropriated these funds to finance a lifestyle beyond his means — a large house in an exclusive Miami neighborhood, a very expensive car, vacations whenever he wanted a break, and buying anything and everything he wanted.

The Bar began investigating after the attorney representing the seller in a real estate transaction voiced a complaint. Marks, who represented the buyer, was to have forwarded the net proceeds of the sale, $197,102.10, to the seller’s attorney on October 3, 1990. On October 5, 1990, Marks transferred only $97,102.10. When the seller’s attorney contacted him regarding the $100,000 shortage, Marks told him the shortage was a bank error and he would wire transfer the balance to him immediately. Marks sent the attorney a trust account check on October 15, 1990, in the amount of $100,369.42. There were insufficient funds in the account to cover the check.

Following his resignation from the Bar in December 1990, Marks was criminally prosecuted for felony grand theft in the first degree and felony grand theft in the second degree for his trust account defalcations. He pled guilty to the charges in 1992 and was sentenced to four years of probation with special conditions of restitution and 150 hours of community service.

Marks borrowed money from family, friends, and other sources to replace the money he stole from his clients. Then, in January 1997, Marks declared bankruptcy, discharging the debts he still owed to family, friends, and other sources. He discharged a total of $463,900.54 in debts, including a debt of $90,000 for money he borrowed from a trust established by his aunt for the care and maintenance of her severely disabled son, Marks’s cousin.

Marks testified that he has agreed to repay this $90,000 debt only if he is readmitted to the practice of law. He argued it would be financially irresponsible for him to agree to repay this debt without this condition. The record contains an unsigned letter to the Board purportedly from the co-trustees of the family trust, outlining Marks’s agreement to execute a promissory note with the trust upon.his readmission. According to the letter, the note would obligate Marks to make a small lump sum payment immediately and monthly installment payments for the balance over a ten-year period. The record also contains a copy of a signed letter from Marks’s counsel to the trustees offering, on Marks’s behalf, to pay $6000 down and $700 per month for ten years “contingent on. his re-admission to the Bar.” Significantly, this repayment proposal contains no interest payments.

The only evidence concerning any of the other debts discharged by the bankruptcy is Marks’s testimony. He testified that he paid a debt of $671 to Kahn & Gutter, which had been discharged in the bankruptcy. Marks also testified that he had satisfied the $146,000 debt to the IRS for his 1985, 1989, 1990, and 1992 taxes, despite its discharge in the bankruptcy.

These problems with the IRS began years before Marks’s resignation. He failed to pay federal income taxes for 1985, 1989, 1990, 1992, 1993, 1994, and 1995. In November 1996, he owed the IRS over $150,000 in delinquent taxes, penalties, and interest. Marks resolved these issues with the IRS, but learned nothing from these mistakes. He also failed to pay his federal income taxes for 1996, 1997, 1998, and 1999. Marks informed the Board'that he chose to use the money that should have been utilized to pay his taxes to finance his children’s college educations. Based upon this testimony, the Board made the following finding: “Based upon the applicant’s explanation of the extenuating circumstances surrounding his failure to timely pay these taxes, the Board further finds that the conduct described in Specification 2 is not disqualifying for admission to The Bar.”

The tax issues for' 1996 through 1999 remain unresolved. Marks was making payments toward this debt for some time through payroll deduction. Then, according to Marks, he stopped making payments upon the advice of his contact with the IRS. He made two offers of compromise, both of which were rejected by the IRS. According to Marks, the IRS is waiting to see if Marks is readmitted to the Bar before it will agree to a compromise settlement. Currently, Marks is apparently making no payments toward this debt, which he estimated is approximately $140,000.

ANALYSIS

The applicant bears the burden of demonstrating his or her good moral character in the bar admission process. Although the burden of coming forward with evidence may shift, the burden of proof never moves. Fla. Bd. of Bar Exam’rs re H.H.S., 373 So.2d 890, 891-92 (Fla.1979). An applicant who has been denied admission must prove his rehabilitation by clear and convincing evidence. Fla. Bd. of Bar Exam’rs re M.L.B., 766 So.2d 994, 996 (Fla.2000). In determining whether the applicant has shown sufficient rehabilitation, the nature and seriousness of the offense are weighed against the evidence of rehabilitation. Id.

We first examine the nature and seriousness of Marks’s misconduct. Marks was clearly facing disbarment when he opted to resign. The overwhelming majority of cases involving the misuse of client funds have resulted in disbarment. Fla. Bar v. Spear, 887 So.2d 1242, 1247 (Fla.2004) (citing Fla. Bar v. Travis, 765 So.2d 689, 691 (Fla.2000)); see also Fla. Bar v. Vernell, 721 So.2d 705, 709 (Fla.1998); Fla. Bar v. Porter, 684 So.2d 810, 813 (Fla.1996). If his trust account defalcations had not resulted in his disbarment, Marks’s felony convictions for first degree grand theft and second degree grand theft certainly would have. Disbarment is the presumptively appropriate sanction when an attorney is convicted of a felony under applicable law. Fla. Stds. Imposing Law. Sanes. 5.11. The burden is on the attorney to overcome the presumption of disbarment. See Fla. Bar v. Arnold, 767 So.2d 438 (Fla.2000); Fla. Bar v. Grief, 701 So.2d 555, 557 (Fla.1997). His resignation is the equivalent of disbarment.

Thus, the conduct which prompted Marks’s resignation presents a significant obstacle to his readmission. The resignation itself heightens this obstacle. A disciplinary resignation is tantamount to disbarment. Fla. Bar v. Hale, 762 So.2d 515 (Fla.2000). Disbarment alone is disqualifying for admission to the Bar unless an applicant can show clear and convincing evidence of rehabilitation. Fla. Bd. of Bar Exam’rs re Papy, 901 So.2d 870, 872 (Fla.2005). The denial of Marks’s application for readmission in 1999 also heightens the obstacle.

Because the misconduct by Marks prior to his disciplinary resignation was extremely serious, he would have needed to present substantial rehabilitation evidence to gain readmission, even if he had not engaged in further serious misconduct after his resignation. However, after he resigned, when he was required to be living a life beyond reproach to establish his rehabilitation and prove himself worthy of readmission, Marks willfully refused to pay his federal income taxes for several years despite significant income. He offered the feeble excuse that he thought paying for his children’s college educations was more important than complying with the law. Contrary to the Board’s finding, choosing to benefit one’s children above compliance with the law does not constitute “extenuating circumstances.” We disapprove the Board’s finding that Specification 2 was not disqualifying and find instead that it is disqualifying, both individually and collectively. He not only failed to show rehabilitation, but actually demonstrated a failure to correct past misconduct and a continuing course of misconduct.

We next address the evidence of rehabilitation. The essence of true rehabilitation is to first atone for the harm caused by the past misconduct. The victims of that misconduct must be made whole to the extent humanly possible. The evidence on this first critical issue is woefully inadequate. Indeed, the record evidence demonstrates that he stole from his clients; borrowed money from friends, family, and others to replace the money he had stolen; then declared bankruptcy, leaving the friends, family, and others to sustain the loss caused by his extravagant lifestyle. The record is not clear as to which debts discharged in bankruptcy were reaffirmed, if any. Other than the testimony of Marks that he paid a debt of $671 which had been discharged in the bankruptcy and that he satisfied an earlier debt to the IRS, there is nothing in this record to demonstrate meaningful and consistent restitution to those he injured. Under these circumstances, the testimony of the applicant, without any supporting documentation as to the repayment of debts, does not constitute clear and convincing evidence of restitution showing rehabilitation.

The Court is especially troubled by Marks’s conduct toward the secondary victims of his theft. The $90,000 he owes to a family trust which was established to care for the needs of his handicapped cousin is still unpaid and will, apparently, remain unpaid unless and until Marks is readmitted to the Bar. This is an unconscionable attempt by Marks to exert pressure on the Court to ignore the clear duty to the public of this State to protect it from attorneys lacking the requisite character and fitness of our noble profession. We will not be pressured or coerced into ignoring our duty in this regard based upon conditions a former attorney seeks to place on his or her obligations with regard to repayments for the benefit of a disabled person. This actually exacerbates the misconduct we review.

We give no credence to the rationalization that Marks has limited ability to repay this and other debts because he is not a member of the Bar. Marks has a good education and must be reasonably intelligent, having graduated from law school and taken and passed the Florida Bar examination. Numerous individuals with these or lesser qualifications earn comfortable livings and pay their debts without being members of The Florida Bar. Further, Marks is solely responsible for his situation, as he is the one who engaged in the misconduct that led to his resignation.

The Board and Marks attempt to distinguish this case from our decision in Papy, 901 So.2d 870, by pointing to the fact that Marks resigned from the Bar over fifteen years ago, while Papy had only resigned seven years prior to his unsuccessful application for readmission, as if the mere passage of time erodes that level of proof of rehabilitation needed to gain readmission. This is not the case, especially when there has been additional serious misconduct after the resignation.

Marks still owes unpaid federal income taxes, interest, and penalties totaling approximately $140,000 as a result of his having failed to pay his taxes for 1996, 1997, 1998, and 1999. This occurred seven years ago, not fifteen. This was after his resignation, the point in time when, according to Marks, he resolved to reevaluate his life and dedicate “himself to performing those acts and conducting himself in such a manner as would ultimately support his application for readmission and permit him to rejoin a learned and honorable profession.” His attempt to leverage his obligations to- satisfy debts on admission to The Florida Bar even further demonstrates a lack of character and fitness necessary for admission to The Florida Bar.

In Papy this Court denied readmission to a disbarred attorney, stating: “Papy simply has not made adequate progress in rectifying his financial irresponsibility for this Court to even , consider his admission to the Bar at this time.” Id. at 872. “Further, Papy has not engaged in any effort whatsoever to make whole the others who suffered financial consequences as a result of his misconduct.” Id. The same situation exists here and compels the same result.

It is fundamental that an attorney who resigns in the face of disciplinary proceedings must correct the misdeeds of his past before attempting to prove his rehabilitation. Marks has not done that. First, he stole from clients to support his extravagant lifestyle. Then he stole from citizens by failing to pay his taxes. Finally, he basically absconded with money from family members and friends by borrowing from them to pay back the money he stole from his clients and then discharged these debts in bankruptcy. He has not resolved the tax issue or the discharged debts issue, but makes only promises of future conduct. “Words of promise ring hollow where there is no recognition of the wrongfulness of the conduct established by the legal record.” M.L.B., 766 So.2d at 997.

From a reviewing of the record for more information concerning the debts and the reasons for them, it is apparent that Marks is also hostile toward the Board, although he denies it, and he apparently believes the Board has been unreasonable in requiring that he re-take the Bar exam when his scores expired. This negates another important element of a showing of rehabilitation — lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative, or other proceeding against the applicant. See Fla. Bar Ad-miss. R. 3-13(d). There is a dearth of evidence concerning other rehabilitation efforts as well.

Marks failed to meet his burden of establishing his rehabilitation by clear and convincing evidence. Accordingly, we disapprove the Board’s recommendation and deny Marks’s application for admission to The Florida Bar at this time.

CONCLUSION

We disapprove the Board’s finding that Specification 2 was not disqualifying and find Specification 2 disqualifying, both individually and collectively. We further disapprove the Board’s recommendation that Allan Barry Marks be admitted to The Florida Bar and deny his application for admission at this time.

It is so ordered.

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