author: CANTERO, J.

text:
    Elizabeth J. NEUMONT, et al., Appellants, v. STATE of Florida, Monroe County, Florida, Appellee.
    No. SC06-1204.
    Supreme Court of Florida.
    Sept. 27, 2007.

      Eric Grant, Sacramento, CA, Harold E. Wolfe, Jr., and William H. Pineus, West Palm Beach, FL, and James H. Hicks' of Hicks, Brams and Motto, West Palm Beach, FL, for Appellants.
    Edwin A. Scales, III of GrayRobinson, P.A., Key West, FL, Monterey Campbell, III of GrayRobinson, P.A., Lakeland, FL, and Robert B. Shillinger, Jr., Chief Assistant County Attorney, Office of County Attorney Monroe County, Florida, Key West, FL, for Appellee.
    Harry Morrison, Jr., General Counsel and Rebecca A. O’Hara, Deputy General Counsel, Florida League of Cities, Inc., Tallahassee, FL, and Virginia Saunders Delegal, General Counsel, Florida Association of Counties, Inc., Tallahassee, FL, as Amicus Curiae.
   CANTERO, J.

The appellants seek to invalidate a Monroe County ordinance limiting the use of homes as vacation rentals. We must decide what kind of changes to a proposed ordinance during the enactment process are “substantial or material” so that the process must start from scratch. Reviewing the case on appeal from a summary judgment, the United States Court of Appeals for the Eleventh Circuit certified a question to us. We have exercised our discretionary jurisdiction to answer it. See art. V, § 3(b)(6), Fla. Const. For the reasons discussed below, we hold that the changes to an ordinance during the enactment process are only “substantial or material” if they change the ordinance’s general purpose.

I. FACTUAL AND PROCEDURAL HISTORY

The Board of County Commissioners of Monroe County enacted Ordinance No. 004-1997 on February 3, 1997. The ordinance restricts the use of residential properties throughout Monroe County as vacation rentals, defined as rentals of fewer than twenty-nine days. The ordinance’s purpose is to prevent the diversion of scarce residential housing to vacation rental use. Violations result in criminal penalties.

The County first advertised the ordinance on November 7-9, 1996. The advertisement included the ordinance’s title: “Modifying the existing prohibition on tourist housing including vacation rentals in all land use districts.” The advertisement stated that a first public hearing was scheduled for December 10. At the time, a draft of the ordinance, dated September 17,1996, was available to the public.

At the December 10 hearing, the board of county commissioners considered a new draft dated that same day that was distributed to the board during the hearing. It differed from the advertised draft in several respects:

(a) the original draft proposed a ban on vacation rentals throughout the County, while the new draft took a district-by-district approach;
(b) the original draft allowed an option to create sub-districts where vacation rentals would be permitted, while the new draft eliminated that option; and
(c) the new draft included a more-complex licensing system for vacation rentals than did the original draft.

Based on the input received at the hearing, the board ordered additional changes.

On January 11, 12, and 16, 1997, the County advertised a notice of a second public hearing. This advertisement again stated the title of the ordinance, which was the same as the original title except in one respect. It stated, “Modifying the existing prohibition on tourist housing including vacation rentals in all residential districts ” (instead of “land use districts”).

The second hearing was held on February 3. At that hearing, the board considered a new draft of the ordinance dated January 29, which had been distributed to the public on January 31. At the second hearing, the board also considered an “Errata Sheet,” which included additional changes to the proposed ordinance.

After four and half hours of public debate, the board approved the January 29 draft with the proposed changes in the errata sheet. There were three main differences between the December 10 draft and the final version:

(a) The December 10 draft permitted vacation rentals in sparsely settled residential districts while the final ordinance prohibited them;
(b) The December 10 draft addressed vacation rentals in commercial fishing districts, while the final ordinance did not; and
(c) The December 10 draft did not refer to the Commercial Fishing Residential District, while the final ordinance prohibited vacation rentals in that district.

The Plaintiffs, Elizabeth Neumont, et al., own property in Monroe County, which they used for short-term vacation rentals. They sued Monroe County in the United States District Court for the Southern District of Florida, challenging the ordinance based on state and federal law. The various claims sought declaratory relief as to the ordinance’s validity, injunctive relief to halt its effect, and compensation for damages resulting from its enforcement. Count X asserted that the ordinance was void because the changes made during the enactment process were “substantial or material,” thereby requiring the process to begin anew.

The district court certified a class of plaintiffs, see Neumont v. Monroe County, Fla., 198 F.R.D. 554 (S.D.Fla.2000); and later dismissed several counts. See Neumont v. Monroe County, Fla., 242 F.Supp.2d 1265 (S.D.Fla.2002). After discovery and several rounds of summary judgment motions, the court upheld the ordinance, granted summary judgment for Monroe County on Count X, and dismissed the remaining claims. Neumont v. Monroe County, Fla., 280 F.Supp.2d 1367 (S.D.Fla.2003). Plaintiffs appealed.

The Eleventh Circuit noted that federal courts “address questions of federal constitutional law only as a last resort.” Neumont v. Florida, 451 F.3d 1284, 1285 (11th Cir.2006) (quoting Save Our Dunes v. Ala. Dep’t. of Envtl. Mgmt., 834 F.2d 984, 989 (11th Cir.1987)). The court further noted that a state law determination on Count X “may remove the need to decide certain questions of federal constitutional law.” Id. Therefore, the circuit court certified to us the following question:

Whether, for purposes of Florida Statutes section 125.66(4)(b), a “substantial or material change” in a proposed ordinance during the enactment process (that is, the kind of change that would require a county to start the process over) is confined to a change in the “original general purpose” of the proposed ordinance, or whether a substantial or material change includes (1) a change to the “actual list of permitted, conditional, or prohibited uses within a zoning category,” or (2) a change necessary to secure legislative passage of the ordinance?

Id. at 1287. The question is one of first impression in Florida.

II. ANALYSIS

The Plaintiffs argue that Monroe County modified the proposed ordinance several times during the process, and that because the changes were “substantial or material,” the enactment process should have been restarted. They argue that after every change to the ordinance, the proposal should have been readvertised and new public hearings held. Monroe County concedes that a substantial or material change to a proposed ordinance would require such action. That requirement derives from a 1982 Florida Attorney General opinion concluding that “if any substantial or material changes or amendments are made during the adoption process, the enactment process ... must start anew, with full compliance with the reading and notice requirements contained [in the statute].” See Op. Att’y. Gen. Fla. 82-93 (1982). This conclusion is consistent with that of other authorities. See 5 Eugene McQuil-lin, The Laiu of Municipal Corporations, § 16.88 (3d ed. 1996) (“An ordinance amended after its publication is not rendered void if the ordinance as amended does not vary from the substance of the original ordinance.”). The County argues, however, that the changes to this ordinance were not substantial or material because they did not alter the ordinance’s general purpose. Therefore, the only issue we must consider is what kind of changes to a proposed ordinance are “substantial and material” so as to require the process to be restarted.

The parties propose three possible definitions of “substantial or material change.” These are: a change to the actual list of permitted, conditional, or prohibited uses within a zoning category; a change necessary to secure legislative passage; and a change in the original purpose of the ordinance. For the reasons explained below, we hold that the last definition — a change in the ordinance’s original purpose — is most consistent with the statutory requirements for enacting an ordinance and best furthers the public’s interest in efficient and responsive local government.

In the following sections we (A) review the Monroe County zoning system in general and Ordinance No. 004-1997 in particular; (B) analyze the requirements for enacting ordinances listed in section 125.66, Florida Statutes (1995); (C) adopt a definition of “substantial or material change”; and finally (D) apply that definition to this case. We conclude that the general purpose approach is the proper standard.

A. The Monroe County Zoning System and Ordinance No. 004-1997

We first review the Monroe County zoning system. The Monroe County Code (MCC) defines twenty-three categories of land use districts. Each category serves a different purpose. For example, an Urban Commercial District is “intended to serve retail sales and service, professional services and resort activities.” Monroe County, Fla., Code § 9.5-203 (2007). An Urban Residential District is intended “to provide areas for high-density residential uses.” Id. § 9.5-204. Each district also has permitted, conditional, and prohibited uses. For example, in the Urban Commercial District, “recreational uses [are] limited to: bowling alleys, tennis ... courts ... [and] swimming pools.” Id. § 9.5-232(a). In the Commercial Fishing Village Districts, commercial fishing is a permitted use, but wireless communications facilities are a conditional use, subject to certain conditions.

The use at issue here was vacation rentals. The ordinance defined vacation rentals as short-term leases of fewer than twenty-nine days. The ordinance permits vacation rentals in certain districts.

As noted above, during the enactment process, the County considered several versions of the ordinance. Between the first published notice in November 1996 and the final public hearing in February 1997 the County altered the list of land use districts where vacation rentals were permitted. For example, the original version permitted them in the Sparsely Settled Residential Districts, while the final version did not. The original version did not mention the Commercial Fishing Residential District, while the final version prohibited vacation rentals there. Finally, the original version addressed vacation rentals in 22 of the 23 Commercial Fishing Districts, but the final version did not refer to them.

B. Section 125.66, Florida Statutes

Article VIII, section 1 of the Florida Constitution authorizes counties to enact local ordinances: “The board of county commissioners of a county ... may enact, in a manner prescribed by general law, county ordinances.” Section 125.66, Florida Statutes (1995), establishes the procedures by which ordinances may be enacted: “In exercising the ordinance-making powers conferred by s.l, Art. VIII of the State Constitution, counties shall adhere to the procedures prescribed herein.” § 125.66(1), Fla. Stat. (1995). Section 125.66 imposes detailed notice and hearing requirements depending on the type of ordinance proposed. Three subsections are particularly relevant here: (1) section 125.66(2), governing the “regular enactment procedure” for ordinances that do not involve land use districts; (2) section 125.66(4)(a), governing ordinances that change the zoning map designation for parcels of fewer than ten acres; and (3) section 125.66(4)(b), governing ordinances that change the zoning map designation of parcels larger than ten acres, or which change the list of permitted, conditional, or prohibited uses within a zoning category. We review each of these subsections below.

1. Section 125.66(2): the Regular Enactment Procedure

Section 125.66(2) governs the enactment process for the vast majority of county ordinances. It provides in relevant part:

(2)(a) The regular enactment procedure shall be as follows: The board of county commissioners at any regular or special meeting may enact or amend any ordinance, except as provided in subsection (4), if notice of intent to consider such ordinance is given at least 10 days prior to said meeting by publication in a newspaper of general circulation in the county. A copy of such notice shall be kept available for public inspection during the regular business hours of the office of the clerk of the board of county commissioners. The notice of proposed enactment shall state the date, time, and place of the meeting; the title or titles of proposed ordinances; and the place or places within the county where such proposed ordinances may be inspected by the public. The notice shall also advise that interested parties may appear at the meeting and be heard with respect to the proposed ordinance.

§ 125.66(2), Fla. Stat. (1995) (emphasis added). Thus, section 125.66(2) requires that notice of a proposed ordinance be published at least ten days before the commission meeting at which the ordinance will be considered. The notice must include the title of the proposed ordinance and “the place or places within the county where such proposed ordinance may be inspected by the public.” § 125.66(2), Fla. Stat. (1995). Thus, when enacting most ordinances, counties must allow the public to inspect drafts of all proposed regular ordinances before their enactment.

2. Section 125.66(4)(a): Changes to the Zoning Map Designation of Parcels of Land Involving Fewer than Ten Acres

Section 125.66(4)(a), Florida Statutes (1995), prescribes the procedures to be followed in enacting zoning changes affecting fewer than ten acres of land. That section states in relevant part:

(a) In cases in which the proposed ■ ordinance ... changes the actual zoning map designation for a parcel or parcels of land involving less than 10 contiguous acres, the board of county commissioners, in addition to following the general notice requirements of subsection (2), shall direct its clerk to notify by mail each real property owner whose land [will be affected].... The notice shall state the substance of the proposed ordinance or resolution as it ajfects that property oivner ....

§ 125.66(4)(a), Fla. Stat. (1995) (emphasis added). This subsection requires compliance with the notice requirements of subsection (2), described above, and requires that counties mail to each property owner affected by the proposed ordinance a summary of the proposed ordinance explaining how the proposed ordinance will affect them.

3. Section 125.66(4)(b): Ordinances That Change the List of Permitted, Conditional, or Prohibited Uses Within a Zoning Category

The last category of procedures applies, among other areas, to ordinances that change the'list of permitted, conditional, or prohibited uses within a zoning category. Monroe County Ordinance 004-1997 falls within this category. Section 125.66(4)(b) provides in relevant part:

(b) In cases in which the proposed ordinance or resolution changes the actual list of permitted, conditional, or prohibited uses within a zoning category ... the board of county commissioners shall provide for public notice and hearing as follows:
1. The board of county commissioners shall hold tivo advertised public hearings on the proposed ordinance or resolution. At least one hearing shall be. held after 5 p.m. on a weekday, unless the board of county commissioners, by a majority plus one vote, elects to conduct that hearing at another time of day. The first public hearing shall be held at least 7 days after the day that the first advertisement is published. The second hearing shall be held at least 10 days after the first hearing and shall be advertised at least 5 days prior to the public hearing.
2. The required advertisements shall be no less than 2 columns wide by 10 inches long in a standard size or a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notices and classified advertisements appear. The advertisement shall be placed in a newspaper of general paid circulation in the county and of general interest and readership in the community pursuant to chapter 50, not one of limited subject matter. It is the legislative intent that, whenever possible, the advertisement shall appear in a newspaper that is published at least 5 days a week unless the only newspaper in the community is published less than 5 days a week. The advertisement shall be in substantially the following form:
NOTICE OF (TYPE OF) CHANGE
The (name of local government unit) proposes to adopt the following by ordinance or resolution: (title of ordinance or resolution).
A public hearing on the ordinance or resolution will be held on (date and time) at (meeting place).

§ 125.66(4)(b) (1995) (emphasis added).

Section 125.66(4)(b) contains several important provisions. It requires that counties hold two public hearings on all proposed ordinances that change the list of permitted, conditional, or prohibited uses within a zoning category. The hearings must be advertised in a newspaper of general circulation. Subsection (4)(b) also contains precise details about the form of the advertisement and its placement within the newspaper edition. Unlike the regular enactment procedure described in subsection (2), however, subsection (4)(b) does not require that drafts of proposed land use ordinances be made available for public review. Also unlike subsection (tí (a), subsection (⅝)(⅞) does not require that counties provide notice of the substance of the proposed ordinance or its effect on property owners, and does not require counties to comply with the provisions of subsection (2). In fact, subsection (4)(b) permits counties to provide notice of ordinances that change the permitted, conditional, or prohibited uses within a zoning category by their title only. This distinction will be important in deciding which definition of “substantial or material change” we should adopt.

C. Defining a “Substantive or Material Change”

As noted above, the parties propose three possible definitions of “substantial or material change”: (1) a change to the actual list of permitted, conditional, or prohibited uses within a zoning category; (2) a change necessary to secure legislative enactment; and (3) a change in the original purpose of an ordinance. Plaintiffs argue that we should adopt one of the first two definitions, while the County advocates for the third. We first consider the Plaintiffs’ proposed definitions, ultimately rejecting them. We then discuss why the County’s definition best suits the purposes behind the statutory requirements and the orderly and democratic process of local government.

1. Any Change to the List of Permitted, Conditional, or Prohibited Uses Within Any Zoning Category

Plaintiffs propose that any change to the list of permitted uses within any zoning category requires the process to restart. They derive this standard from the language of section 125.66(4)(b). Plaintiffs argue that any change substantial enough to trigger the enactment process— that is, a change to the list of permitted, conditional, or prohibited uses within a zoning category — is substantial enough to require a restart when the change is made during that process. We disagree. What triggers the requirements of section 125.66(4)(b) is not the “substantial” nature of the proposed ordinance, but the fact that it changes the list of permitted, conditional, or prohibited uses. For purposes of the restart requirement, however, the term “substantial” refers to the importance of the change, not to the effect of the ordinance itself.

The Plaintiffs’ proposed standard would be prohibitively restrictive. As the County argues, such a standard would require a restart whenever, due to input from either staff or a member of the public at a public hearing, the County in any way changed the list of permitted, conditional, or prohibited uses within a zoning category. Thus, for example, if in this case the original proposed ordinance permitted vacation rentals in twenty of twenty-three districts, but due to public input the County changed the ordinance to permit vacation rentals in only nineteen districts, the entire process would have to start over again. If, at another public hearing, the County decided to permit vacation rentals in only eighteen districts, the process would have to start yet again. This cycle could potentially repeat itself forever, or at least for an extended period of time. It would render any proposed land use ordinance almost impossible to amend and would result in ironic consequences: far from allowing greater public input into the decision-making process, it would discourage counties from changing a proposed ordinance as a result of public input, as such change would delay the enactment process. This would substantially diminish the role of the public in modifying a proposed ordinance. The purpose of the public hearings that section 125.66(4)(b) requires is to provide a forum for public comment so that proposed ordinances may be modified after input from citizens who may be affected by the ordinance. Under the Plaintiffs’ proposed standard, however, even slight changes to the list of permitted, conditional, or prohibited uses to accommodate citizen concerns would require the entire process to start over. Such a standard would provide commissioners with a strong incentive to ignore public commentary and give unmerited weight to the original version of a proposed ordinance. We therefore reject this definition of a substantial or material change.

2. Any Change Necessary to Secure Legislative Passage of an Ordinance

Plaintiffs also argue that a substantial or materia! change includes “any change necessary to secure legislative passage of the ordinance.” Plaintiffs assert that such a change is a “cause-in-fact” of passage, and therefore is necessarily a “substantial factor.” Such a test would be both over- and under-inclusive, however. Many changes necessary to ensure passage might not be substantial or material, whereas some substantial changes might be made for reasons other than securing legislative approval. Such a test would also require a subjective and speculative determination of every county commissioner’s intent when voting to adopt a county ordinance. Such a standard would be neither workable nor consistent with the letter and purpose of the statute.

3. The General Purpose Standard

Monroe County advocates instead for a definition of “substantial or material change” based on the ordinance’s general purpose. The County argues that only changes that alter the original purpose of a proposed land use ordinance should require the enactment process to begin anew. We believe such a standard would be faithful both to the text of section 125.66 and to the public interest. This standard derives from the Florida Attorney General Opinion cited above, which states that “amendments can be made during passage of an ordinance when the amendment is not one changing the original purpose." Op. Att’y Gen. Fla. 82-93 (emphasis added). As previously noted, section 125.66(4)(b) requires that the county advertise only the title of the proposed land use ordinance. It seems reasonable, then, that only changes to the ordinance that would render the advertised title inaccurate or misleading should require the enactment process to begin anew. Consider, for example, a proposed ordinance that seeks to change the permissibility of public swimming pools in various land use districts throughout Monroe County. The title of the proposed ordinance might be noticed as: “Regulation of public swimming pools in all land use districts throughout Monroe County.” If during the enactment process the proposed ordinance was changed so that it also affected the list of land use districts where bowling alleys would be permitted, this would render the title inaccurate. Such a change would require the enactment process to start over because the ordinance’s title would no longer be accurate. This rationale is consistent with a general purpose test, since the title of a proposed ordinance is an expression of its general purpose. If a change renders the title inaccurate, then it has very likely altered the general purpose of the proposed ordinance as well.

A general purpose test is consistent with relevant Florida cases. See Webb v. Town Council, 766 So.2d 1241, 1244 (Fla. 1st DCA 2000) (“The law is well settled that notice must adequately inform as to what changes are proposed, and the actual change must conform substantially to the proposed changes in the notice.”); Love Our Lakes Ass’n v. Pasco County, 543 So.2d 855, 857 (Fla. 2d DCA 1989) (same); Williams v. City of North Miami, 213 So.2d 5 (Fla. 3d DCA 1968) (same).

In this case, even if the enactment procedures had begun anew, the public would not have received meaningful notice of the changes because none of them rendered the title inaccurate. If the enactment process had started over, and the ordinance had been re-noticed, the title would still have read: “Modifying the existing prohibition on tourist housing including vacation rentals in all districts in Monroe County.”

Of the three proposed definitions, the general purpose approach also best serves the public’s interest in efficient and responsive local government. As explained above, the two definitions Plaintiffs offer contain serious practical difficulties. A definition premised on changes to the general purpose of a proposed ordinance allows the county commission to adopt changes based on input received at public hearings without compromising the public’s right to receive adequate notice of proposed changes.

By requiring that counties publish the title of proposed ordinances in a newspaper of general circulation, section 125.66(4)(b) places the public on notice that the availability of a particular land use might be altered throughout the county. The two-hearing requirement allows the public to voice their concerns. Interested citizens may attend the hearings and advise the county commission on how to treat that land use within each of their respective districts. The commissioners may then use the input they receive from the public to modify the list of zoning categories where the land use at issue will be permitted, conditional, or prohibited. As one amicus curiae in this case described the process, “choices can be made, minds can be changed, citizens can be heard, and so long as the original purpose of the ordinance is not altered, the ordinance can evolve and change without the local government having to renew the notice and hearing process.” Of the three possible definitions presented in the circuit court’s certified question, the general purpose approach is the most practical and provides the greatest benefit to the public.

D. Applying the Standard to Ordinance No. 004-1997

We now apply the general purpose standard to the ordinance. The first title notified the public that the County was considering a change in the permissibility of vacation rentals in all land use districts. The second advertised title provided notice to all residential property owners that vacation rentals in those districts might be restricted. Ultimately, Ordinance No. 004-1997 only prohibited vacation rentals in residential land use districts. Because the actual changes enacted by the ordinance conformed substantially with the notice provided to the public, we hold that the ordinance satisfies the general purpose test. Although the advertised title was modified between the first and second hearings, the first advertised title provided notice to all zoning districts in Monroe County, whereas the second advertised title only provided notice to residential zoning districts. Be^ cause the enacted ordinance only affected residential zoning districts, the change in the advertised title was not substantial or material. Both titles put residential district residents on notice of the zoning change that was ultimately adopted. Our opinion might differ if the second advertised title had broadened, rather than limited, the scope of the ordinance.

Plaintiffs argue, however, that various changes were made during the enactment process, and that drafts of the proposed changes were not made available to the public until the last minute. As noted in the previous section, section 125.66(4)(b) does not require that counties provide drafts of proposed ordinances for public review. They are required only for regular ordinances, which are governed by section 125.66(2). Therefore, changes to the drafts cannot form the basis for requiring the enactment process to begin anew.

As noted above, section 125.66(4)(b) requires that counties provide notice only of a proposed ordinance’s title. Given that title notice is all that is required, restarting the enactment process would have accomplished little. The changes to the proposed ordinance all related to the regulation of vacation rentals in Monroe County. See City of Hallandale v. State ex rel. Zachar, 371 So.2d 186, 189 (Fla. 4th DCA 1979) (“The title need not be an index to the contents. It is not necessary that it delineate in detail the substance of the statute.”); see also A.B.T. Corp. v. City of Fort Lauderdale, 664 F.Supp. 488, 490-91 (S.D.Fla.1987) (same). Nothing in the enacted ordinance rendered the advertised title misleading or inaccurate. Thus, there was no need to restart the enactment procedure.

III. CONCLUSION

For the reasons stated, we hold that a change in the general purpose of a proposed ordinance is the definition of “substantial or material change” most compatible with the text of section 125.66(4)(b). The general purpose test strikes an effective balance between providing the public with adequate notice and permitting the efficient modification of proposed ordinances in response to public input. Having answered the certified question, we return this case to the United States Court of Appeals for the Eleventh Circuit.

It is so ordered.

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

      . These are: urban commercial; urban residential; urban residential mobile home; urban residential mobile home-limited; suburban commercial; suburban residential; suburban residential (limited); sparsely settled residential; native area; mainland native area; offshore island; improved subdivision; destination resort; recreational vehicle; commercial fishing area; commercial fishing village; commercial fishing special; mixed use; industrial; maritime industries; military facilities; airport; park and refuge; and conservation. Monroe County, Fla., Code § 9.5-202 (2007).

      . We do not suggest that the title of the ordinance will always be the only indicator of an ordinance’s general purpose. There may be cases where changes to the ordinance may not render the title inaccurate but may alter its general purpose. In this case, however, the ordinance's general purpose remained the same throughout the process.

      . Plaintiffs also argue that the County’s procedures in enacting the ordinance violated due process. That issue, however, is for the Eleventh Circuit Court of Appeals to decide.


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    FLORIDIANS FOR A LEVEL PLAYING FIELD, Petitioner, v. FLORIDIANS AGAINST EXPANDED GAMBLING, et al., Respondents.
    No. SC06-2505.
    Supreme Court of Florida.
    Sept. 27, 2007.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, FL, Wilbur E. Brewton and Tana D. Sto-rey of Roetzel and Andress, LPA, Tallahassee, FL, John M. Hogan of Holland and Knight, LLP, Miami, FL, and Thomas R. Julin and Jamie Z. Isani of Hunton and Williams, LLP, Miami, FL, for Petitioner.
    John H. Pelzer of Ruden, McClosky, Smith, Schuster and Russell, P.A., Fort Lauderdale, FL, Bill McCollum, Attorney General, Scott D. Makar, Solicitor General and Timothy D. Osterhaus, Deputy Solicitor General, Tallahassee, FL, and Lynn C. Hearn, General Counsel, Department of State, Tallahassee, FL, for Respondents.
   PARIENTE, J.

We have for review the decision in Floridians Against Expanded Gambling v. Floridians for a Level Playing Field, 945 So.2d 553 (Fla. 1st DCA 2006), in which the First District Court of Appeal certified a question to be of great public importance. Initially, the Court accepted review pursuant to article V, section 3(b)(4) of the Florida Constitution, which gives us discretionary jurisdiction to review “any decision of a district court of appeal that passes upon a question certified by it to be of great public importance.” Upon further consideration, we conclude that jurisdiction was improvidently granted and therefore discharge this case for the two reasons explained below.

In order to have discretionary jurisdiction based on a certified question, there are essentially three prerequisites that must be met. First, it is essential that the district court of appeal pass upon the question certified by it to be of great public importance. We have previously discharged jurisdiction where the district court of appeal has not in fact passed upon the question certified. Second, there must be a district court “decision” to review. See art. V, § 3(b)(4), Fla. Const. For instance, where a district court is unable to reach a clear majority decision on an issue and elects to certify a question without resolving the merits, we are without jurisdiction to answer such a question under article V, section 3(b)(4) of the Florida Constitution. See Boler v. State, 678 So.2d 319, 320 n. 2 (Fla.1996) (stating that if a district court is evenly split on a legal issue and specifically withholds a decision on the merits, there is no “decision” on which to base certified conflict review under article V, section 3(b)(4)). Third, and most important for this case, the question must be in fact “certified” by a majority decision of the district court. For the same reasons that we are without jurisdiction under article V, section 3(b)(4) if there is no majority decision on the merits, we are equally without jurisdiction if there is no clear majority on the decision to certify. Accordingly, we conclude that under article V, section 3(b)(4) of the Florida Constitution, it is required that a majority of those judges participating in the case concur in the decision to certify.

In this ease, only six of the twelve judges that participated in the en banc decision concurred in certification. Five judges, although concurring in the majority decision, disagreed with the decision to certify. Importantly, Judge Benton did not fully concur with the majority decision; rather, Judge Benton only concurred in the judgment. This vote indicates Judge Benton’s agreement only with the judgment of the majority; that is, its decision to reverse the summary judgment and remand. See Home Dev. Co. of St. Petersburg v. Bursani, 168 So.2d 131, 134 (Fla.1964) (distinguishing between the judgment, which is essentially the ultimate decision in the case, and the opinion, which sets “forth the theory and reasoning upon which a decision” is reached); see also Black’s Law Dictionary 858 (8th ed. 2004) (defining judgment as “[a] court’s final determination of the rights and obligations of the parties in a case”). In this sense, “concurring in the judgment” is akin to “concurring in result only,” which “expresses agreement with the ultimate decision but not the opinion.” Rowe v. Winn-Dixie Stores, Inc., 714 So.2d 1180, 1181 (Fla. 1st DCA 1998), disapproved on other grounds by Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001); accord Harry Lee Anstead, Gerald Kogan, Thomas D. Hall & Robert Craig Waters, The Operation and Jurisdiction of the Supreme Court of Florida, 29 Nova L.Rev. 431, 460 (2005) (“A concurring in result only opinion indicates agreement only with the decision, that is, the official outcome and result reached, but a refusal to join in the majority’s opinion and its reasoning.”).

Conversely, certification is separate from the judgment of the court and its reasoning for the judgment as expressed in its opinion. This is evident by comparing the definition of judgment, i.e., “[a] court’s final determination of the rights and obligations of the parties in a case,” with the definition of a certified question, i.e., “[a] point of law on which a[n] ... appellate court seeks guidance ” from a higher court by the procedure of certification. Black’s Law Dictionary at 858, 241 (emphasis supplied). Moreover, there are separate and specific rules that both permit a party to file a motion seeking certification and authorize the district court to certify the question. Compare Fla. R.App. P. 9.030(a)(2)(A)(v) (granting discretionary jurisdiction to the Court if a district court decision certifies a question), with Fla. R.App. P. 9.330(a) (authorizing a party to a file motion for certification to the district court); cf. Floridians, 945 So.2d at 562 (reversing summary judgment and remanding for a trial, and then certifying two questions to the Court, specifically in accordance with article V, section 3(b)(4) of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v)). We conclude that by “concurring in the judgment” and failing to indicate his agreement with the decision to certify, Judge Benton’s vote cannot be counted as agreeing with the certification. Cf. Hadden v. State, 670 So.2d 77, 83 (Fla. 1st DCA 1996) (Benton, J., concurs in result and in certification) (indicating Judge Benton’s agreement with the result and the decision to certify, but disagreement with the reasoning of the majority opinion).

Even assuming that we had jurisdiction based on either a certification of a question of great public importance or express and direct conflict under article V, section 3(b)(3) of the Florida Constitution, we would nevertheless decline to exercise our jurisdiction. After having reviewed the opinions from this Court that deal with post-election challenges based on various issues regarding the election process, we have determined that it is preferable that the facts of this case be developed regard-ring the allegations and pervasiveness of the fraud before we articulate a rule of law regarding the election cure doctrine in such circumstances. This is the position advocated by the Secretary of State, Kurt S. Browning, and the Department of State represented by its General Counsel and the Attorney General. As stated in its answer brief:

The long-standing principle that an election cures irregularities in the process and thereby promotes finality and administrative efficiency is a weighty one; similarly, the ability of citizens to amend the state constitution through the initiative process without fraud is extremely important. This Court should avoid making rulings affecting the application of these principles until the specific allegations of fraud are adjudicated. A fully-developed record with a proven set of facts will allow this Court to carefully consider and balance the competing legal principles; that cannot properly be done based on speculative, unproven factual allegations.

Answer Brief of Respondent Secretary of State at 6.

We believe that the position of the Attorney General is a sound one and conclude, as an alternative basis for discharging jurisdiction, that review in this case is premature. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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

      . See Pirelli Armstrong Tire Corp. v. Jensen, 777 So.2d 973 (FIa.2001); Salgat v. State, 652 So.2d 815 (Fla.1995); Gee v. Seidman & Seidman, 653 So.2d 384 (Fla.1995).

      . Three judges, Judges Browning, Webster and Lewis, concurred in the judgment and the certification; Judge Benton concurred in the judgment only; three judges, Judges Kahn, Ervin, and Wolf, dissented as to the reasoning and result reached by the majority but concurred in the certification; and five judges, Judges Padovano, Barfield, Davis, Pol-ston, and Hawkes, joined “the decision and opinion on this issue presented” but dissented from the court's decision to certify. Three judges, Judges Allen, Van Nortwick and Thomas, did not participate in the en banc panel.

      . Although we agree that review in this case would be premature, we disagree with Judge Padovano to the extent he reasons that certified question jurisdiction was only "meant to apply to a final decision by a district court of appeal.” Floridians, 945 So.2d at 568 (Padovano, J, concurring in part and dissenting in part).


author: QUINCE, J. BELL, J.,

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Jay Junior SIGLER, Appellee/Cross-Appellant.
    No. SC04-1934.
    Supreme Court of Florida.
    Oct. 11, 2007.

      Bill McCollum, Attorney General, Tallahassee, FL, Celia Perenzio, Bureau Chief, and August A. Bonavita, Assistant Attorneys General, West Palm Beach, FL, for Appellant/Cross-Appellee.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellee/Cross-Appellant.
   QUINCE, J.

We have on appeal a decision from the Fourth District Court of Appeal declaring invalid a state statute. Sigler v. State, 881 So.2d 14 (Fla. 4th DCA 2004). We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the district court’s determination that application of section 924.34, Florida Statutes (2001), in this instance, is contrary to the Sixth Amendment right to jury trial. We remand the issue of whether the defendant is guilty of third-degree murder for resolution by a jury.

FACTUAL AND PROCEDURAL HISTORY

The Fourth District Court of Appeal summarized the facts of this case in Si-gler’s first appearance before that court as follows:

While appellant was serving a lawful twenty year prison sentence, he, with the aid of his mother and three of his friends, including Christopher Michelson, crafted and successfully carried out an elaborate scheme for appellant’s escape from the state prison in Miami-Dade County. At an agreed time, one cohort drove a stolen semi-tractor trailer through the prison’s perimeter fence, and simultaneously the other three arrived in two, possibly three, getaway cars. During the commotion, appellant ran through the breach in the prison fence and entered one of the getaway cars, whereupon all sped away to a rendezvous point. There, an exchange of cars and drivers occurred as police were approaching. Although the others were apprehended on the spot, appellant and Miehelson successfully fled the scene in a Saturn automobile owned by appellant’s mother. The two drove to the City of Lake Worth where they stayed overnight in a motel. There they watched television reports of the escape, and became aware that the police were on the lookout for the Saturn.
Around noon of the following day, the two left the motel in the Saturn, with Miehelson driving. En route to Ft. Lauderdale to visit Michelson’s family, they were spotted by a police officer. A high speed chase ensued with Miehelson accelerating to speeds estimated as high as eighty miles an hour. Eventually, he turned into a narrow alley, at the end of which he ran a stop sign, crossed the transverse street, and entered the alley in the next block. Continuing at high speed, he ran a stop sign at the next transverse street where, tragically, he crashed into another car, killing its driver. Appellant and Miehelson were arrested at the scene of the fatal collision.

See Sigler v. State, 805 So.2d 32, 33-34 (Fla. 4th DCA 2001)(Sigler I).

Sigler was indicted and tried for first-degree felony murder which the State alleged was committed while he was engaged in an escape. At the request of the State and over Sigler’s objection, the jury was instructed on first-degree felony mur--der as charged, as well as the lesser-included offenses of second-degree murder and third-degree felony murder. The jury found Sigler guilty of the lesser-included offense of second-degree murder, and he was sentenced to life in prison.

Sigler appealed, raising the issue of whether there was sufficient evidence to sustain his conviction of second-degree murder. The district court reasoned that “[sjince appellant was neither the driver, owner, nor in control of the car which crashed into and killed the victim, his criminal liability, if any, normally would have to be established under a principal theory.” Sigler I, 805 So.2d at 34. Finding no evidence of ill will, hatred, spite or evil intent directed at the victim by the driver of the car, Michelson, the court opined they did not need to decide whether Sigler, a passenger, could be convicted as a principal. Therefore, the district court reversed the conviction for depraved mind second-degree murder based on a lack of evidentiary support. See Sigler I, 805 So.2d at 35.

The Fourth District indicated that section 924.34, Florida Statutes (2001), allows an appellate court to reverse a judgment and direct the trial court to enter a judgment for a necessarily lesser-included offense. See Sigler I, 805 So.2d at 35 (citing I.T. v. State, 694 So.2d 720 (Fla.1997)). In directing the entry of judgment for third-degree murder, the district court reasoned that “the underlying crime supporting the third-degree felony murder charge was the offense of harboring, concealing or aiding an escaped prisoner” as defined by section 944.46, Florida Statutes (2001). Id.

The district court opined that it was clear that Michelson could be convicted of third-degree felony murder committed in furtherance of the crime harboring an escaped prisoner, i.e., Sigler. However, the question for the court was whether Sigler, the escapee, could be guilty of concealing, assisting, or giving aid to himself. See Sigler I, 805 So.2d at 35. In finding, that Sigler could be guilty of third-degree murder based on harboring himself, the district court reasoned that under section 777.011, Florida Statutes (1997), both the person who aids and abets in the commission of the crime and the person who otherwise procures the commission of the crime are principals in the first degree. See Sigler I, 805 So.2d at 36. The Fourth District said, “[i]n order to be guilty as a principal for a crime physically committed by another, one must intend that crime be committed and do some act to assist the other person in actually committing the crime.” Id. (quoting Staten v. State, 519 So.2d 622, 624 (Fla.1988)); see also Arroyo v. State, 705 So.2d 54 (Fla. 4th DCA 1997) (indicating that in order to be guilty as a principal or as an aider and abetter to a crime, the defendant must intend that the crime take place and must do some act which did or was intended to incite, cause, encourage, assist, or advise in the commission of the crime).

The district court concluded that the evidence supported a finding that the defendant was a perpetrator of the underlying felony of harboring, and thus a principal in the homicide committed to further the common criminal design. Sigler, 805 So.2d at 36. The judgment and sentence for second-degree murder was reversed and vacated, and the trial court was directed to “enter a judgment of third-degree felony murder as a lesser-included offense of that charged in the indictment, and to sentence appellant thereon accordingly.” Id. at 37.

On remand, Sigler filed a motion for discharge in the trial court arguing that a third-degree felony murder conviction “would be illegal because the jury had not found him guilty of an essential element of the offense, namely the underlying offense of harboring an escapee.” Sigler v. State, 881 So.2d 14, 16 (Fla. 4th DCA 2004) (Si-gler II). The motion was denied, and the trial court followed the mandate and entered the conviction for third-degree felony murder. On appeal, the State cited to Greene v. Massey, 384 So.2d 24, 28 (Fla.1980), for the proposition that the correctness of the third-degree felony murder conviction is the law of this case because the Fourth District confronted the issue in Sigler I and concluded that such a conviction was proper. Sigler, however, countered that pursuant to Zolache v. State, 687 So.2d 298, 299 (Fla. 4th DCA 1997), appellate courts have the power to correct significant mistakes in spite of the law of the case doctrine. See Sigler II, 881 So.2d at 17.

The Fourth District examined the defendant’s argument that when the jury convicted him of second-degree murder, it did not have to determine beyond a reasonable doubt whether he had committed any felony, much less the felony of harboring an escapee. See Sigler II, 881 So.2d at 17. Thus, the jury could not have found him guilty of any underlying felony. While the Fourth District took notice that the jury actually exonerated the defendant of the first-degree felony murder charge, which required proof of an underlying felony, it reasoned that “[bjecause the verdict in this case is general, we have no way of ascertaining which element of first-degree felony murder was not proved beyond a reasonable doubt.” Id. Assuming that the “jury could well have based its decision on the failure of the evidence to prove an underlying felony,” the Fourth District concluded “a conviction for third degree felony murder may actually conflict with that precise finding by the jury.” Id. The court opined that the original jury verdict could in no way be read to include a determination on any predicate felony, and the jury’s verdict did not include a determination beyond a reasonable doubt of all of the elements necessary to prove third-degree murder. The Fourth District further reasoned that the question of Sigler’s guilt for third-degree murder had to be submitted and determined by a jury and reasoned that “the decision by the Judges of this Court in Sigler I was not a ‘constitutionally acceptable substitute’ for such a jury determination.” Id. at 18.

In reaching this conclusion the Fourth District cited with approval the First District’s decision in Pratt v. State, 668 So.2d 1007 (Fla. 1st DCA), approved, 682 So.2d 1096 (Fla.1996). The defendant in Pratt was convicted of attempted third-degree felony murder, which was no longer a crime after this Court’s decision in State v. Gray, 654 So.2d 552 (Fla.1995). On appeal the State argued that the defendant was not entitled to a new trial but that pursuant to section 924.34, the appellate court should direct the trial court to enter a conviction on the offense of attempted manslaughter, a necessarily lesser-included offense to the charged offense of attempted second-degree murder with a weapon. The district court rejected the State’s argument and said:

Were we to adopt the state’s position and direct entry of judgment for attempted manslaughter (an intent crime) pursuant to section 924.34, we necessarily would be acting as the fact-finder and would have to assume the presence of the requisite intent. Such a result would encroach impermissibly upon the province of the jury. We conclude that the appellant would be effectively denied his constitutional right to trial by a jury if we, sitting in an appellate capacity, were to presume a finding of intent that the jury itself did not have to make.

Pratt, 668 So.2d at 1009. On discretionary review in this Court, we approved the decision of the district court and remanded the case for proceedings based on any lesser offense that had been instructed on at trial.

Likewise, the Fourth District opined that section 924.34 did not control the case because the statute does not control over the United States Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The court indicated that the meaning of the Sixth Amendment right to trial by jury in a criminal case as articulated in Appren-di was binding on the court, and that Apprendi made it clear that criminal convictions depend on jury findings as to each element of the crime. Sigler II, 881 So.2d at 19. Then, citing to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the court said that the Supreme Court reiterated the importance of the jury’s determination of all of the elements of a crime. Thus, the court concluded that “these later decisions [Appren-di and Blakely ] make it clear beyond any doubt that section 924.34 as interpreted in I.T. is contrary to the Sixth Amendment when the previous jury determination cannot be deemed to have necessarily found the defendant guilty as to every element of the permissive lesser-included offense.” Sigler II, 881 So.2d at 20. We agree and affirm this decision.

DISCUSSION

I

Law of the Case/Manifest Injustice

As a threshold issue, the Fourth District Court of Appeal addressed the matter of whether it could consider the issue of the defendant’s conviction for third-degree murder based on the fact that the district court had directed the trial court, in its prior opinion, to enter a conviction for third-degree murder. Thus, the State argued that the law of the case doctrine precluded relitigation of that issue, citing to this Court’s opinions of Greene v. Massey, 384 So.2d 24 (Fla.1980), and Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965). The State makes the same argument to this Court, albeit in a summary fashion, and says there would be no manifest injustice if the defendant is convicted of third-degree murder. We have said, and the State acknowledges, that issues which have previously been addressed by the court may be reconsidered where there have developed material changes in the evidence or where reliance on the prior decision would result in manifest injustice. See Henry v. State, 649 So.2d 1361, 1364 (Fla.1994) (citing Preston v. State, 444 So.2d 939, 942 (Fla.1984); Greene v. Massey, 384 So.2d at 28; Steele v. Pendarvis Chevrolet, Inc., 220 So.2d 372, 376 (Fla.1969)).

The Fourth District indicated that it would reconsider the issue that was decided in its Sigler I opinion because, “[i]f an illegal conviction is not well within the concept of exceptional circumstances and manifest injustice requiring a relaxation of the law of the case, it is not easy to imagine what would be.” Sigler II, 881 So.2d at 17. While the State argues a third-degree murder conviction would not be manifest injustice, the State has failed to demonstrate why the Fourth District’s holding in this instance is error. Therefore, we affirm the Fourth District on this issue.

II

Constitutionality of Section 924.34

The real thrust of the State’s argument to us is that the Fourth District erred in not applying section 924.34 and the decision in I.T. to this case. The State maintains that application of this statutory provision and case law allows the appellate court to direct a conviction for the lesser offense of third-degree murder. Sigler, on the other hand, argues that the district court correctly held section 924.34 unconstitutional as applied to him. Sigler further asserts the district court incorrectly held that an escaped prisoner can be guilty of harboring himself under a principal theory, and that he cannot be convicted of third-degree felony murder with harboring as the underlying felony.

Thus, the issue before this Court is whether application of section 924.34, Florida Statutes, to the facts of this case is a violation of Sigler’s right to a trial by jury. We hold that to the extent that section 924.34 can be interpreted to allow entry of a conviction by an appellate court for a crime where the jury has not determined all of the elements of that crime beyond a reasonable doubt, section 924.34 is a violation of the Sixth Amendment right to a trial by jury. The courts of this state have consistently held that judicial interpretation of statutes and determinations concerning the constitutionality of statutes are pure questions of law subject to the de novo standard of review. See City of Miami v. McGrath, 824 So.2d 143 (Fla.2002); Dep’t of State v. Martin, 885 So.2d 453, 456 (Fla. 1st DCA 2004) (citing Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998)), aff'd, 916 So.2d 763 (Fla.2005). We apply this standard in interpreting section 924.34.

Section 924.34, Florida Statutes, entitled “When evidence sustains only conviction of lesser offense,” provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser-included offense.

In this Court’s earlier interpretation of section 924.34, we held this section was only applicable when the crime charged has lesser statutory degrees or where there are necessarily lesser-included offenses of the crime charged. See Gould v. State, 577 So.2d 1302 (Fla.1991). However, in 1997, we receded from Gould, and we held, in I.T. v. State, 694 So.2d 720, 724 (Fla.1997), the term “lesser offense necessarily included in the offense charged” not only includes necessarily lesser-included offenses but also permissive lesser-included offenses. The State relies on our decision in I.T. to support its argument that Sigler was properly convicted of third-degree murder in the trial court.

The State’s reliance on I.T. is misplaced as the situation addressed in I.T. is distinguishable from the facts and circumstances of this ease. In I.T. this Court was asked to determine whether the district court could direct the trial court to enter a judgment pursuant to section 924.34 for a permissive lesser-included offense. The juveniles involved in that case had in fact been adjudicated delinquent of the offense charged — grand theft of a motor vehicle. The Second District Court of Appeal determined that the evidence did not support a charge of grand theft. See I.T. v. State, 657 So.2d 1241 (Fla. 2d DCA 1995), quashed, 694 So.2d 720 (Fla.1997). The Second District directed the trial court, however, to enter an adjudication for the lesser offense of trespass in a conveyance, an offense which is not a necessarily lesser-included offense of grand theft of a motor vehicle. In directing adjudication for trespass in a conveyance, the district court relied on State v. G.C., 572 So.2d 1380 (Fla.1991), a case where we affirmed an adjudication for trespass in a conveyance, under similar circumstances.

The Second District certified conflict between its decision and the Fourth District’s decision in N.C. v. State, 581 So.2d 647 (Fla. 4th DCA 1991). The Fourth District in N.C. followed this Court’s Gould decision and held an appellate court could only direct adjudication for a necessarily lesser-included offense not a permissive lesser-included offense. On review, while finding the petition in I.T. insufficient to include a charge of trespass, we nonetheless held that section 924.34 does allow an appellate court to direct a trial court to enter an adjudication or judgment for a permissive lesser-included offense where supported by the allegations in the charging document and the proof at trial. See I.T., 694 So.2d at 724.

However, in I.T. we were not confronted with the situation that is now before this Court — a situation that involves an acquittal by the jury of the charged offense (first-degree murder), a conviction by the jury of a lesser offense (second-degree murder), and the appellate court’s determination that the evidence did not support a conviction for second-degree murder. See Sigler II. Moreover, we were not asked to address in I.T. the issue of whether each element of a lesser-included offense must be found by the jury beyond a reasonable doubt. And, finally, at the time I.T. was decided the United States Supreme Court had not issued its opinions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). These Supreme Court decisions have changed the landscape in our analysis of issues involving the defendant’s right to a trial by jury.

In Apprendi the Supreme Court addressed the issue of whether a defendant in a state court could be sentenced to an extended sentence on facts that were not included in his guilty plea. Apprendi pled guilty to possession of a firearm for an unlawful purpose and unlawful possession of a prohibited weapon. He was given an enhanced sentence pursuant to the state’s hate crime statute. The state appellate courts affirmed. However, on certiorari review, the Supreme Court held that any factor that increased a sentence beyond the statutory maximum must be submitted to the jury and determined to exist beyond a reasonable doubt before it can be used to enhance a defendant’s sentence. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In reaching this conclusion, the Supreme Court began with the proposition that the right to due process of law and the light to a jury trial are rights that entitle a criminal defendant to have the jury determine his or her guilt on every element of a crime and that the determination of guilt must be beyond a reasonable doubt. Id. at 477, 120 S.Ct. 2348; accord Blakely v. Washington, 542 U.S. 296, 304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (finding that a judge exceeds his authority when he imposes a sentence that is not supported by the jury verdict alone).

Importantly, the Supreme Court in Apprendi endorsed the statement from the concurring opinion in Jones v. United States, 526 U.S. 227, 252-53, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), that “[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.” Jones, 526 U.S. at 252-53, 119 S.Ct. 1215 (Stevens, J., concurring). Jones supports the Fourth District’s conclusion and our conclusion that criminal convictions can only be sustained if the jury has found all of the elements of that crime beyond a reasonable doubt. In Jones the defendant was charged with and convicted of use of a firearm during the commission of a violent carjacking, an offense which carried a maximum sentence of fifteen years. Jones was sentenced, however, to twenty-five years based on the judge’s determination that one of the victims of the carjacking was seriously injured.

The statutory scheme for carjacking provided for three separate carjacking offenses. The least serious of the three offenses and the one the defendant was charged under provided for a fifteen-year sentence when a defendant possessed a firearm during a carjacking. The second of the offenses provided for a twenty-five-year sentence if serious bodily injury resulted from the carjacking, and the third carjacking offense provided for imprisonment for any number of years up to life if death occurred during the carjacking. In reversing the lower court’s affirmance of Jones’s twenty-five year sentence, the Supreme Court found that the provisions of the carjacking statute that allowed greater penalties where serious bodily injury or death occurred set forth additional elements, and those additional elements needed to be charged in the indictment, proved beyond a reasonable doubt, and submitted to the jury for a determination.

Read together, these Supreme Court decisions mean exactly what the court in Franks v. Alford, 820 F.2d 345 (10th Cir.1987), articulated twenty years ago. The state appellate court in Franks vacated the defendant’s conviction of first-degree felony murder because one of the alleged felonies (escape) was not supported by the evidence and because the other felonies (two robberies) were not causally connected to the homicide. But the court entered a judgment for second-degree depraved mind murder. In federal habeas proceedings the judgment and resulting sentence were affirmed by the district court. On appeal the Tenth Circuit found that the jury’s conviction for first-degree felony murder did not include a determination on the issue of a depraved mind. The court said:

As opposed to first degree felony murder, the second degree murder statute at issue requires “an act imminently dangerous to another person and evincing a depraved mind.” Okla. Stat. tit. 21, § 701.-8(1). Although the jury was correctly instructed that it had to find this element to convict Franks of second degree murder, once it found Franks guilty of first degree murder it was precluded under the court’s instructions from considering whether the evidence established this element "of second degree murder.
As we have noted, Franks’ conviction for felony murder did not require the jury to determine beyond a reasonable doubt whether the act causing the death evinced a depraved mind, as required for the second degree murder conviction imposed by the Court of Criminal Appeals. The appellate court’s determination of this issue is not a constitutionally acceptable substitute. See Cabana, 106 S.Ct. at 696. Because Franks was denied his right under the Sixth and Fourteenth Amendments to have his guilt determined by a jury, his conviction is constitutionally infirm.

Franks, 820 F.2d at 347. Based in part on this holding in Franks, the Fourth District correctly found an appellate court cannot direct a judgment for a permissive lesser-included offense if the jury verdict did not necessarily include a finding on every element of that offense.

In this case, the jury convicted Si-gler of second-degree murder. Pursuant to section 782.04(2), Florida Statutes (1997), a conviction of second-degree murder requires findings that there was an unlawful killing of a human being, perpetrated by an act that was eminently dangerous evincing a depraved mind, and not perpetrated with any premeditated intent to cause death. Although the district court found the evidence did not support a finding that the defendant had a depraved mind, such a conviction would necessarily not include a finding that any felony was committed during the act that led to the victim’s death. Thus, despite the fact that the conviction was reversed, the jury did not find that any felony was committed.

However, a conviction for third-degree murder requires an underlying felony and a jui’y determination of the existence of such a felony. Section 782.04(4), Florida Statutes, defines third-degree murder as a murder committed during the perpetration or attempted perpetration of any felony that is not one of the felonies enumerated in the statute. In order for the district court to direct the trial court to enter judgment for third-degree murder, there must be a finding of a felony. Because the jury verdict under the facts of this case did not include such a finding, the appellate court could not direct the trial court to enter a judgment for third-degree murder. Any such judgment would be a violation of the defendant’s right to a trial by jury in violation of the Sixth Amendment. To the extent that section 924.34 can be read to provide for conviction of an offense whose elements have not been determined by the jury, it would be unconstitutional. Otherwise, when all of the elements of a lesser offense have been determined by the jury, section 924.34 is a valid exercise of the legislative prerogative allowing appellate courts to direct a judgment for such an offense.

Ill

Other Issues Raised

This case came to this Court based on the fact that the district court expressly held section 924.34 invalid. The defendant cross-appealed and now argues the district court erred in holding that the defendant could be found guilty as a principal to the crime of harboring himself. The district court did not specifically, in the decision that is now before us, rule on this issue. The district court merely, in its outline of the factual and procedural history of the case, indicated that in Sigler I it held that the defendant could be convicted as an aider and abettor to the crime of harboring. Sigler did not raise this issue as a ground for dismissal in the trial court or in his second appeal in the district court. Therefore, we do not address this issue here. The State also argues that at the very least we should remand this case for entry of a conviction for manslaughter by culpable negligence. This issue likewise was not addressed by the district court, and we decline to do so in this appeal.

CONCLUSION

For all of the reasons expressed above, we affirm the decision in Sigler II and hold section 924.34, Florida Statutes, unconstitutional only to the extent that it can be read to allow the appellate court to direct entry of judgment for a lesser-included offense when all of the elements of the lesser-included offense have not been found by a jury beyond a reasonable doubt.

It is so ordered.

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

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

PARIENTE, J., recused.

BELL, J.,

concurring in result only.

I agree with the majority that the trial court could not enter a judgment for third-degree felony murder. However, I am not entirely convinced that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), apply to the circumstances of this case. Instead, I am convinced that in I.T. v. State, 694 So.2d 720 (Fla.1997), this Court misinterpreted section 924.34, Florida Statutes, to include permissive lesser-included offenses. Under the plain meaning of section 924.34, courts only have the authority to enter a judgment for lesser degree offenses or necessarily lesser-included offenses, not permissive lesser-included offenses. Given this misinterpretation of section 924.34, I would recede from I.T. and hold that the Fourth District in this case did not have the authority to instruct the trial court to enter a judgment for the permissive lesser-included offense of third-degree felony murder.

As Justice Harding noted in his dissent in I.T., section 924.34 is clear and unambiguous. Specifically, it provides the following:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser-included offense.

§ 924.34, Fla. Stat. (emphasis added). Clearly, this provision only refers to lesser degree offenses and necessarily lesser-included offenses. It does not mention permissive lesser-included offenses. Thus, when the evidence at trial is insufficient to support the offense for which the jury found the defendant guilty, the plain language of section 924.34 only authorizes courts to enter a judgment for lesser degree offenses or necessarily lesser-included offenses. In other words, in order to enter a judgment for the lesser offense pursuant to section 924.34, the lesser offense must either be lesser in degree or consist of fewer of the same constituent elements as the greater offense. See Williams v. State, 957 So.2d 595, 598 (Fla.2007) (“Necessarily lesser-included offenses are those offenses in which the statutory elements of the lesser-included offense are always subsumed within those of the charged offense.”).

Because section 924.34 does not authorize a court to enter a judgment for a permissive lesser-included offense, I would recede from I.T. and hold that the trial court in this case was without authority to enter a judgment for third-degree felony murder, a pennissive lesser-included offense. Accordingly, I concur in result only.

      . The Fourth District noted that by returning the verdict for the lesser offense, the jury necessarily found that the homicide did not occur while appellant was committing an escape. See Sigler I, 805 So.2d at 34.

        . This section was rewritten in 1970; it formerly read:
      In a case where the offense is divided into degrees or necessarily includes lesser offenses, and the appellate court is of the opinion drat the evidence does not prove the degree or offense of which the defendant is found guilty, but does establish his guilt of some lesser degree or offense necessarily included therein, then the appellate court shall reverse the judgment of the trial court with directions to the trial court to enter judgment' for such lesser degree or offense necessarily included in the charge and pass sentence accordingly, unless some other matter or thing appearing in the record makes it advisable that a new trial be had.
      § 924.34, Fla. Stat. (1969).

      . Cabana v, Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986).

      . While we acknowledge the principle that once we have jurisdiction of a case we can address any issue that may affect the case, in this instance, the defendant has not been convicted of the crime of harboring.

      . In Blakely, the Supreme Court applied Ap-prendi s holding that "[o]lher than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348) (emphasis added). Here, however, finding a harboring and entering a judgment for third-degree murder does not enhance Sigler's sentence beyond the sentence for second-degree murder. See § 782.04(2), (4), Fla. Stat. (1997).

      . However, under section 924.34, the trial court has the authority to enter a judgment for the necessarily lesser-included offense of manslaughter. See § 782.07, Fla. Stat. (1997); Fla. Std. Jury Instr. (Crim.), Schedule of Lesser-included Offenses. Indeed, entering a judgment for manslaughter would not run afoul of the majority's application of Apprendi and Blakely to section 924.34.


author: PER CURIAM.

text:
    James D. STERLING, et al., Petitioners, v. The OHIO CASUALTY INSURANCE COMPANY, Respondent.
    No. SC06-1910.
    Supreme Court of Florida.
    Oct. 11, 2007.
    George A. Yaka of Vaka, Larson, and Johnson, P.L., Tampa, FL, for Petitioner.
    Wayne Tosko of Vasquez and Tosko, LLP, Orlando, FL, for Respondent.
   PER CURIAM.

We originally accepted jurisdiction to review the Second District Court of Appeal’s decision in Sterling v. Ohio Casualty Insurance Co., 936 So.2d 43 (Fla. 2d DCA 2006), based on express and direct conflict with other Florida appellate decisions. After further consideration, we have determined that jurisdiction was improvidently granted and that we should decline jurisdiction. See art. V, § 3(b)(3), Fla. Const. Accordingly, we hereby dismiss review.

It is so ordered.

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