author: BELL, J.

text:
    CITY OF HOLLYWOOD, Petitioner, v. Colon Bernard MULLIGAN, Respondent.
    No. SC04-990.
    Supreme Court of Florida.
    July 6, 2006.

      Daniel L. Abbott, City Attorney, Hollywood, FL, for Petitioner.
    Ronald S. Guralnick, Miami, FL, for Respondent. '
    Robert S. Glazier, ■ Miami, FL, Maria Chiaro, Interim City Attorney and Warren Bittner, Assistant City Attorney, Miami, FL on behalf of City of Miami; Edward G. Guedes and Harriet R. Lewis of Weiss, Serota, Helfman, Pastoriza, Guedes, Cole and Boniske, P.A., Miami, FL on behalf of City of Dania Beach, FL and City of West Palm Beach, FL; Keith W. Davis of Cor-bett and White, P.A., General Counsel, Lake Worth, FL on behalf of the Palm Beach County League of Cities, Inc., for Amici Curiae.
   BELL, J.

The Fourth District Court of Appeal has certified the following question to us as one of great public importance:

Does the Florida Contraband Forfeiture Act preempt local governments from adopting ordinances imposing forfeiture of personal property for misdemeanor offenses?

Mulligan v. City of Hollywood, 871 So.2d 249, 257 (Fla. 4th DCA 2003). The Fourth District answered this question in the affirmative. We rephrase the question as follows:

Does the Florida Contraband Forfeiture Act (FCFA), sections 932.701-.707, Florida Statutes (2002), preempt a municipality from adopting an ordinance that authorizes the seizure and impoundment of vehicles used in the commission of certain misdemeanor offenses?

We answer this rephrased question in the negative. We hold that the FCFA does not preempt a municipality from using its home rule powers to enact such an ordinance. Therefore, we quash the decision of the Fourth District and remand this case for farther proceedings consistent with this opinion.

I. FACTS

This case arose from a suit brought by Colon Bernard Mulligan (Mulligan) against the City of Hollywood (City) challenging the validity of the City’s vehicle impoundment ordinance, section 101.46, Hollywood, Florida, Code of Ordinances (1999). Mulligan was arrested by City police officers for soliciting a prostitute in violation of section 796.07, Florida Statutes (2000), a misdemeanor offense. Because Mulligan was in his vehicle at the time of the solicitation, the police officers seized and impounded his vehicle pursuant to the City’s ordinance.

As provided by the ordinance, Mulligan appeared before a special master and argued that the seizure was not supported by probable cause. The special master disagreed. Finding probable cause to support the seizure, the special master imposed the sanction as provided for in the ordinance. The special master ordered Mulligan to either pay a $500 administrative fine or forfeit the bond he had previously posted. Mulligan paid the administrative fine, and the vehicle was returned to him.

Mulligan then brought suit against the City seeking a declaratory judgment that the ordinance is invalid. The action was certified as a class action, and Mulligan was named class representative. Mulligan and the City filed cross-motions for summary judgment. The trial court granted the City’s motion for summary judgment.

On appeal, the Fourth District reversed. Finding that the ordinance “effects a criminal forfeiture” of the vehicles seized and is therefore “a forfeiture scheme,” Mulligan, 871 So.2d at 252, the Fourth District held the ordinance is preempted by or, in the alternative, is in conflict with the FCFA. Id. at 256.

II. ANALYSIS

As stated earlier, we hold that the FCFA does not preempt municipalities from adopting ordinances authorizing the seizure and impoundment of vehicles used in the commission of enumerated misdemeanor offenses. After we explain our rationale for this holding on the primary question of preemption, we turn to the alternative basis the Fourth District relies on to invalidate the ordinance. This alternative basis is that the FCFA and the ordinance conflict. As we explain, the ordinance does not conflict with the FCFA. However, in this discussion, we do note our agreement with the Fourth District that the ordinance raises significant, constitutional concerns. Finally, we explain the distinction between an impoundment and a forfeiture which prompted our rephrasing of the certified question.

A. The FCFA Does not Preempt the Adoption of Municipal Ordinances Authorizing the Seizure and Im-poundment of Vehicles

In analyzing the preemption question, we (1) describe the City’s ordinance; (2) highlight the law of preemption; (3) discuss the FCFA; and, finally, (4) apply the law of preemption to the ordinance and the FCFA. As for our standard of review, the Fourth District’s ruling on the validity of the ordinance is a question of law subject to de novo review by this Court. See State v. J.P., 907 So.2d 1101, 1107 (Fla. 2004) (finding that rulings on the constitutionality of several ordinances should be reviewed de novo) (citing City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002)).

1. The City’s Ordinance

Section 101.46 of the Hollywood, Florida, Code of Ordinances is entitled “Vehicle Impoundment.” This ordinance was enacted on May 5, 1999, as part of ordinance 0-99-12. Its purpose is to aid the City’s law enforcement in deterring crimes related to drugs and .prostitution. The ordinance authorizes the seizure and impoundment of motor vehicles whenever a police officer has probable cause to believe that the vehicle (1) contains cannabis or a controlled substance under chapter 893 of the Florida Statutes; (2) was used to purchase or attempt to purchase cannabis or a controlled substance; or (3) was used to facilitate the commission of an act of prostitution, assignation, or lewdness pursuant to section 796.07, Florida Statutes. § 101.46(A), Ord. Significantly, each of the offenses enumerated in the ordinance is a misdemeanor crime, and, by its express terms, the ordinance does not apply when a vehicle is subject to seizure under the FCFA. § 101.46(C), Ord.

The ordinance requires that upon seizing and impounding a vehicle for one or more of the enumerated misdemeanor offenses, the City’s police officers must follow a number of procedures. The officer must provide written notice to the owner of the vehicle or the person in control of the vehicle that the vehicle is being impounded by the City of Hollywood Police Department and that there is a right to request a preliminary hearing. § 101.46(B), (D), Ord. This notice must be delivered either by hand or, if the owner or operator is not available, by certified mail within five days. Id. An owner or operator may request a preliminary hearing, and, if requested, the hearing must be held within ninety-six hours. This preliminary hearing is held before a code enforcement official called a special master who, according to the City, is appointed pursuant to chapter 162, Florida Statutes, in lieu of appointing a local government code enforcement board. See § 162.03, Fla. Stat. (1999). The City bears the burden of showing that the seizure was supported by probable cause. § 101.46(D), Ord. If probable cause is shown, the owner can regain possession of the vehicle only by paying an administrative fee of up to $500 plus towing and storage costs or by posting a bond in the same amount. Id. If probable cause is not shown, the vehicle is released, and the vehicle owner is not liable for any costs. Id.

If the owner does not request a preliminary hearing, or if the special master finds probable cause for the seizure at the preliminary hearing, the City schedules a final hearing and notifies the vehicle owner. § 101.46(E), Ord. The final hearing must occur no later than forty-five days after the date that the vehicle is impounded. Id. At the final hearing, the City must establish by a preponderance of the evidence that the vehicle was (1) properly impounded pursuant to the ordinance and (2) that the owner of the vehicle either knew or should have known that the vehicle was used or was likely to be used in violation of the ordinance. Id. If the City fails to establish either of these elements, the vehicle is returned to the owner without penalty. Id. If the special master finds that the vehicle is subject to impoundment, an . order is then entered finding the record owner of the vehicle civilly liable to the City for an administrative fee, not to exceed $500, as well as towing and storage costs. Id. The vehicle remains impounded until the administrative fees are satisfied. The funds recovered are allocated, first, as reimbursement to the police department for costs incurred in enforcing the ordinance (tawing and storage), and second, as surplus to the City’s general fund. § 101.46(G), Ord. Unclaimed vehicles are subject to Florida’s provisions for the disposition of lost or abandoned property contained in chapter 705, Florida Statutes (1999). § 101.46(F), Ord.

2. The Law of Preemption

In Florida, a municipality is given broad authority to enact ordinances under its municipal home rule powers. Art. VIII, § 2(b), Fla. Const.; § 166.021(1), (3)(c), (4), Fla. Stat. (1999). Under its broad home rule powers, a municipality may legislate concurrently with the Legislature on any subject which has not been expressly preempted to the State. Wyche v. State, 619 So.2d 231, 237-38 (Fla.1993) (citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066, 1069 (Fla. 3d DCA 1981)); see also Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989) (stating that the municipal home rule powers act “limits cities from legislating on any subject expressly preempted to state government by general law”). “Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature.” Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005). “Express pre-emption requires a specific statement; the preemption cannot be made by implication nor by inference.” Fla. League of Cities, Inc. v. Dep’t of Ins. & Treasurer, 540 So.2d 850, 856 (Fla. 1st DCA 1989) (quoting Bd. of Trs. v. Dulje, 453 So.2d 177, 178 (Fla. 2d DCA 1984)); see also Phantom of Clearwater, Inc., 894 So.2d at 1018 (“Express preemption ... must be accomplished by clear language stating that intent.”); Edwards v. State, 422 So.2d 84, 85 (Fla. 2d DCA 1982) (“An ‘express’ reference is one which is distinctly stated and not left to inference.”). However, “[t]he preemption need not be explicit so long as it is clear that the legislature has clearly preempted local regulation of the subject.” Barragan, 545 So.2d at 254 (citing Tribune Co. v. Cannella, 458 So.2d 1075 (Fla.1984)).

The Fourth District held that the City’s ordinance is preempted by the FCFA. It based this holding upon the language of the FCFA’s policy statement as found in section 932.704, Florida Statutes (1995). We examine this holding by looking at the history and language of the FCFA, in particular section 932.704.

3. The Florida Contraband Forfeiture Act

In 1974, one year after the adoption of the Municipal Home Rule Powers Act, the Legislature adopted the Florida Uniform Contraband Transportation Act. Ch. 74-385, §§ 1-4, Laws of Fla., codified at §§ 943.41-44, Fla. Stat. (1975). In 1980, the name of this- act was changed to the Florida Contraband Forfeiture Act (FCFA). The FCFA was later renumbered to sections 932.701-.704; and, in 1992, section 932.704 was amended to include a policy statement. In 1995, this policy statement was amended to its current form:

It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband Forfeiture Act as supplemental funding for authorized purposes. The potential for obtaining revenues from forfeitures must not override fundamental considerations such as public safety, the safety of law enforcement officers, or the investigation and prosecution of criminal activity. It is also the policy of this state that law enforcement agencies ensure that, in- all seizures made under the Florida Contraband Forfeiture Act, their officers adhere to federal and state constitutional limitations regarding an individual’s right to be free from unreasonable searches and seizures, including, but not limited to, the illegal use of stops based on a pretext, coercive-consent searches, or a search based solely upon an individual’s race or ethnicity.

§ 932.704(1), Fla. Stat. (2005) (emphasis added).

Relying on this policy statement in section 932.704, the Fourth District held that the City’s ordinance is expressly preempted by the FCFA. Specifically, the Fourth District reasoned that because section 932.704 provides that law enforcement agencies “shall utilize” the provisions of the FCFA when forfeiting contraband articles used for criminal purposes, the Legislature had expressly preempted “municipal criminal contraband forfeiture laws” to the State. 871 So.2d at 256. The Fourth District further found that under section 932.701(2)(a)(5) of the FCFA, the Legislature had expressly limited the forfeiture of vehicles to felony offenses. Id.

In her special concurrence, Judge May disagreed with this finding. She' opined that because the FCFA is limited to felonies, the FCFA does not expressly preempt a municipality from legislating with regard to misdemeanors under its municipal home rule powers. Id. at 257 (May, J., concurring specially). We agree with Judge May on this point.

4. Application of Law of Preemption to the FCFA and the Ordinance

Contrary to the Fourth District’s findings, the words “shall utilize” alone do not express preemption. This phrase should be read in context and with an eye toward its plain meaning. “We have recognized as ‘axiomatic’ the principle that ‘all parts of a statute must be read together in order to achieve a consistent whole.’ When possible, we ‘must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” Clines v. State, 912 So.2d 550, 557 (Fla.2005) (citation omitted) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)).

In section 932.704(1), the Legislature provides that “[i]t is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes.” The term “contraband” is a defined term under the FCFA. In pertinent part, the FCFA defines contraband as

[a]ny personal property, including ... any ... vehicle of any kind ... which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony....

§ 932.701(2)(a)(5), Fla. Stat. (2002) (emphasis added). When this statutory definition of contraband is placed in the FCFA’s policy statement, that statement reads as follows:

It is the policy of this state that law enforcement agencies shall utilize the provisions of the [FCFA] to deter and prevent the continued use of contraband articles [i.e., any personal property, including ... any ... vehicle of any kind ... which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony] for criminal purposes.

§§ 932.701(2)(a)(5), .704(1), Fla. Stat. (emphasis added). Read in this manner, the FCFA’s policy statement refers to contraband articles, such as vehicles, as those articles that are connected with the commission of felony offenses. Stated otherwise, for purposes of preemption, when the statutory definition of contraband is applied to the policy statement in section 932.704(1), the FCFA does not express any intent to preempt seizure and forfeiture in the context of nonfelony offenses.

Furthermore, when the FCFA and the question of preemption are considered in light of the Municipal Home Rule Powers Act, the absence of an express legislative intent to preempt the field of forfeiture in enacting the FCFA becomes more significant. As of 1941, the law in Florida was that the subject of forfeiture is a field preempted to the Legislature, and a municipality had to expressly be given the authority to legislate in that field. City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369, 370 (1941). However, a change in this law occurred in 1973 when the Municipal Home Rule Powers Act was enacted. This act removed all general limitations on a municipality’s power to legislate in a particular field. See § 166.021, Fla. Stat. (2002). Passed the year before the original version of the FCFA, the Municipal Home Rule Powers Act does not reserve to the Legislature the power to legislate in the field of forfeiture. One cannot lightly disregard this omission because the Legislature did retain field preemption in other areas. For example, in chapter 166 itself, the Legislature preempted the field in regard to ammunition sales. See § 166.044, Fla. Stat. (2002) (“No municipality may adopt any ordinance relating to the possession or sale of ammunition.”). And since 1973, the Legislature has continued to use similar preemptive language in other contexts. For instance, regarding the lottery, the Legislature stated that “[a]ll matters relating to the operation of the state lottery are preempted to the state, and no county, municipality, or other political subdivision of the state shall enact any ordinance relating to the operation of the lottery authorized by this act.” § 24.122(3), Fla. Stat. (2005); see also § 320.8249(11), Fla. Stat. (2005) (“The regulation of manufactured homes installers or mobile home installers is preempted to the state....”).

Given the forgoing analysis, we determine that the FCFA does not preempt to the Legislature the field of vehicle seizure and forfeiture, much less impoundment, for misdemeanor offenses. Accordingly, in answering the certified question as rephrased, we hold that the FCFA does not preempt a municipality from adopting an ordinance that authorizes the seizure and impoundment of vehicles used in the commission of certain misdemeanors.

B. The Ordinance is Not in Conflict with the FCFA

As an alternative basis for its decision, the Fourth District held that even if the ordinance is not preempted by the FCFA, the ordinance is in conflict with the FCFA because it does not meet the procedural due process requirements of the FCFA. 871 So.2d at 256 (citing Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957 (Fla.1991)). We disagree. In addition to the absence of preemption, there is no conflict between the FCFA and the ordinance. The statute and the ordinance can coexist.

Certainly, “[m]unicipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So.2d 468, 470 (Fla.1993). In other words, “[a] municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.” Id. (quoting Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972)). “[A]n ordinance penalty may not exceed the penalty imposed by the state”; however, “a municipality may provide a penalty less severe than that imposed by a state statute.” Id. (citing Edwards, 422 So.2d 84).

The FCFA and the ordinance do not conflict because they authorize different remedies for different criminal conduct. The FCFA allows for the forfeiture of vehicles used in the commission of a felony. See § 932.701(2)(a)(5), Fla. Stat. (2002). The ordinance authorizes the im-poundment of vehicles used in the commission of a misdemeanor. See § 101.46(A)-(C), Ord. Additionally, the ordinance expressly does not apply when the vehicle is subject to seizure under the FCFA. The fact that the FCFA and the ordinance employ differing procedures to achieve their purposes does not amount to an improper “conflict” necessitating the invalidation of the ordinance. Therefore, the FCFA and the ordinance can coexist.

Although we find that the differing procedures employed by the FCFA and the ordinance do not create a conflict necessitating the invalidation of the ordinance, we agree with the Fourth District that the ordinance’s procedures raise serious constitutional concerns. However, we do not address these concerns because (1) these constitutional concerns are independent of whether the FCFA and the ordinance are in conflict with each other, and (2) no constitutional issues were raised before us. The Fourth District is free to address these issues on remand, if appropriate.

C. The Impoundment Ordinance is Not a Forfeiture Scheme

Finally, we note that although impoundment and forfeiture are related concepts in the context of government seizure of personal property, they are not synonymous terms. Essentially, an im-poundment is the temporary taking of tangible, personal property; a forfeiture is the permanent taking of real or personal property (tangible or intangible). For example, forfeiture has been defined as a permanent governmental taking of title and all rights to and in property that has been condemned for its role in a criminal violation. See United States v. Ursery, 518 U.S. 267, 284, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.”). On the other hand, impoundment is defined as “to place (something, such as a car or other personal property) in the custody of the police or the court, often with the understanding that it will be returned intact at the end of the proceeding.” Black’s Law Dictionary 760 (7th ed.1999). The Virginia Court of Appeals noted the essential difference in the nature of the deprivation imposed by an impoundment as opposed to a forfeiture in Wilson v. Commonwealth, 23 Va.App. 443, 477 S.E.2d 765, 768 (1996): “A temporary im-poundment of a vehicle is not a forfeiture, although it has characteristics of a forfeiture. Being temporarily deprived of one’s vehicle until one pays a fee to release it also resembles a civil penalty.”

Based on the foregoing definitions, contrary to the Fourth District’s conclusion, the ordinance does not “effect a forfeiture.” It does not seek to permanently divest the owner of all right and title to the vehicle. Rather, the ordinance authorizes the temporary deprivation of access to one’s vehicle when it is used in the commission of a drug- or prostitution-related misdemeanor. Although the ordinance requires that the vehicle owner be temporarily deprived of the vehicle and requires that the owner pay a fee in exchange for the return of the vehicle, these requirements do not transform the im-poundment ordinance into a “forfeiture scheme.” The vehicle owner is never permanently deprived of the vehicle; rather, the vehicle’s return is simply conditioned upon payment of an administrative fee and incidental costs. If a vehicle owner fails to pay the administrative fee and other costs, the vehicle is not “forfeited” as in the FCFA. Instead, the vehicle is disposed of as if it were lost or abandoned property under chapter 705, Florida Statutes (2005). § 101.46(F), Ord. Under chapter 705, the vehicle is sold. The money due the City is taken from the sale proceeds, and the balance is held in an account for the owner for up to one year.

III. CONCLUSION

For the foregoing reasons, we conclude that the FCFA does not preempt a municipality such as the City of Hollywood from adopting an ordinance that authorizes the seizure and impoundment of vehicles used in the commission of certain misdemeanor offenses. Furthermore, though its procedures raise serious constitutional concerns, the ordinance is not in conflict with any provision of the FCFA. Accordingly, we quash the decision of the Fourth District Court of Appeal and remand for further consideration consistent with this opinion.

It is so ordered.

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

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

      . Hereinafter cited as " § 101.46, Ord.”

      . Section 166.021 of the Municipal Home Rule Powers Act states in applicable part:
      (1) As provided in s. 2(b), Art. VIII of the State Constitution, municipalities ... may exercise any power for municipal purposes, except when expressly prohibited by law.

      (3) ... [T]he legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:

      (c) Any subject expressly preempted to state or county government by the constitution or by general law;

      (4) The provisions of this section shall be so construed as to secure for municipalities the broad exercise of home rule powers granted by the constitution.

      . The legislative history notes that the change in name followed the case of Baker v. State, 343 So.2d 622 (Fla. 4th DCA 1977), in which the Fourth District held that the Florida Uniform Contraband Transportation Act was specifically limited in its application to vessels, motor vehicles, and aircraft. See Fla. S. Comm, on Judiciary, CS for SB 93 (1980) Staff Analysis (April 30, 1980) (on file with comm.) (incorrectly attributing case to Second District Court of Appeal).

      . Not only does the FCFA policy statement not express an intent to preempt the entire field of seizures and forfeitures for nonfelony offenses, it neither expressly nor impliedly preempts the field of seizures and forfeitures for vehicles. Section 932.704(1) states that "[i]t is also the policy of this state that law enforcement agencies ensure that, in all seizures made under the Florida Contraband Forfeiture Act, their officers adhere to federal and state constitutional limitations.” (Emphasis added.) First, this clause implies that there may be seizures of vehicles not made under the FCFA. Indeed, in Florida, there are seizures of vehicles that are authorized under statutory provisions other than the FCFA. See, e.g., §§ 206.205, 322.34, 328.05, 328.07, Fla. Stat. (2005) (concerning seizure and forfeiture of marine vessels for various violations); §§ 329.10, 329.11, Fla. Stat. (2005) (concerning seizure and forfeiture of aircraft for various violations); §§ 206.205, 316.80, 212.16, 316.191, 319.35, 317.0017, 316.1935, 320.30, 322.34, Fla. Stat. (2005) (concerning seizure and forfeiture of automobiles). Second, although nearly all of these statutes require that the forfeiture of any seized vehicle must be made under the FCFA, there are other statutes that authorize both the seizure and the forfeiture of a vehicle without regard for the FCFA. For instance, seizures made under the Florida and Federal RICO Acts may result in the forfeiture of a vehicle, but the forfeiture is not governed by the FCFA. See § 895.05, Fla. Stat. (2005); Ruth v. Dep't of Legal Affairs, 684 So.2d 181 (Fla.1996); 18 U.S.C. § 1964 (2005); see also § 212.16, Fla. Stat. (2005) (allowing for confiscation and sale of vehicle under its own provisions).

      . This Court stated in City of Miami v. Miller:

      Forfeitures are considered harsh exac-tions and as a. general rule are not favored. They will not be permitted by a municipality or other governmental entity unless the power to do so is conferred by express authority from the legislature. The power to declare a forfeiture is considered a field unto itself and will not be allowed as an incident to other penalties. The legislature must confer the power in terms and the City must provide for it pursuant to the power conferred.

        Id. at 370.

      . We also caution against comparing the City's vehicle impoundment ordinance with a temporary taking under the power of eminent domain. The Fourth District compared the City’s ordinance to a temporary regulatory taking under the power of eminent domain, relying in part on Keshbro, Inc. v. City of Miami, 801 So.2d 864 (Fla.2001), to draw this analogy. Mulligan, 871 So.2d at 253. In Keshbro, we held that a temporary closure of a hotel and apartment by city nuisance abatement boárds for drug- and prostitution-related activities was a compensable regulatory taking under the "economically beneficial use standard” outlined in Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). 801 So.2d at 875. The critical distinction is that, under the City’s ordinance, the vehicle is temporarily taken under the municipality’s police powers, not under the power of eminent domain. This distinction was emphasized in Bennis v. Michigan, 516 U.S. 442, 444, 116 S.Ct. 994, 134 L.Ed.2d 68 (1996), in which the United States Supreme Court held that a vehicle seized and forfeited for its use in violation of Michigan’s indecency laws was not a “taking” because the vehicle was seized pursuant to the state's police power, not under eminent domain.


source: Caselaw Access Project

author: PARIENTE, J.

license: Public Domain

text:
    Ronald McLEAN, Petitioner, v. STATE of Florida, Respondent.
    No. SC03-1732.
    Supreme Court of Florida.
    July 6, 2006.

      Ryan Thomas Truskoski, P.A., Orlando, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, Tampa Criminal Appeals and John M. Klawikofsky, Assistant Attorney General, Tampa, FL, for Respondent.
   PARIENTE, J.

In this case we address a certified question of great public importance:

Does section 90.404(2)(b), Florida Statutes (2001), violate due process when applied in a case in which identity is not an issue?

McLean v. State, 854 So.2d 796, 803-04 (Fla. 2d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer this question in the negative and hold that section 90.404(2)(b) comports with the requirements of due process of law when used as a conduit for evidence that corroborates the victim’s testimony that the crime occurred rather than to prove, the identity of the alleged perpetrator.

In so holding, we conclude that due process is satisfied by weighing the probative value of the evidence of prior acts of child molestation against its potential for unfair prejudice, which is compelled by section 90.403, Florida Statutes (2005). Application of section - 90.403 in determining admissibility ensures that section 90.404(2)(b) does not open the door to introduction of any and all propensity evidence in sexual molestation cases. Where necessary to ensure that a defendant receives a fair trial, the trial court should either exclude the evidence or substantially limit its presentation so that it does not become a feature of trial. Further, under section 90.404(2)(c)(2), Florida Statutes (2005), when such evidence is admitted, the trial court shall, if requested, give an appropriate cautionary instruction and shall repeat the instruction in its final charge to the jury. Because the trial court in this ease carefully and conscientiously followed these steps, we agree with the Second District that the defendant was not denied due process of law. Accordingly, we approve the Second District’s decision.

FACTS AND PROCEDURAL HISTORY

Ronald McLean was charged with capital sexual battery and lewd molestation based on events that occurred on October 19, 2000, when McLean was visiting his brother, Gerald McLean. On that night, Gerald McLean’s eight-year-old grandson, J.N., was also visiting.

J.N. and his grandfather regularly watched wrestling on television on Thursday nights and J.N. would stay over at his grandparents’ home. On October 19, J.N.’s grandmother put him to bed around 9 p.m. Shortly thereafter, both grandparents went to bed.
At approximately 11 p.m., J.N. awoke his grandmother and announced that he wanted to go home. He was fully dressed and had his knapsack packed. He seemed nervous, but he did not say anything to his grandmother. She drove J.N. home about 11:15 p.m.

McLean, 854 So.2d at 798. The following day, J.N.’s mother asked J.N. why he had come home early. J.N.’s mother did not relate what J.N. told her but stated that the conversation caused her to report the matter to law enforcement.

Amy Wilkins, a ease coordinator for the Children’s Home Society who interviewed J.N., testified at trial that J.N. told her that he woke up during the night at his grandparents’ house and that his “Uncle Ron” was rubbing J.N.’s bottom. J.N. explained that McLean inserted his finger into J.N.’s bottom.

Sharon Childress, an advanced registered nurse practitioner, conducted a physical examination of J.N. The exam did not reveal physical evidence of sexual abuse, but Childress testified that this is expected in a case of anal-digital contact unless there has- been trauma in addition to the penetration with the finger.

J.N. was nine years old at the time of trial. He testified consistently with the information he had provided to Wilkins. McLean did not testify at trial and did not present any defense witnesses. The defense argued to the jury that the evidence presented by the State was unreliable due to the manner in which the investigation was handled and the manner in which the State elicited J.N.’s testimony.

To corroborate J.N.’s testimony, the State sought to introduce evidence of McLean’s prior sexual molestation of another boy, whose last name was Chambers. The State relied on Williams v. State, 110 So.2d 654 (Fla.1959), and its progeny, as well as recently enacted section 90.404(2)(b).

Chambers, twenty-seven at the time of the trial, testified in a pretrial hearing on the admissibility of testimony that when he was twelve, McLean repeatedly molested him. Chambers stated that McLean worked with Chambers’ father in a factory and often spent time with the Chambers family. The Second District summarized Chambers’ testimony:

In 1986, when Mr. Chambers was twelve years old, Mr. McLean went on a hunting trip with Mr. Chambers and his father. On the first night of this trip, Mr. Chambers awoke to find Mr. McLean pressing his penis against Mr. Chambers’ back and touching him under his underwear. Mr. McLean also touched Mr. Chambers’ penis. Mr. McLean had been drinking prior to this event. Mr. Chambers pushed him away and went back to sleep. Later that same night, Mr. McLean returned and continued this conduct until Mr. Chambers ejaculated.
Mr. Chambers testified that several months later similar conduct occurred at his family’s “mini-farm.” Again, this conduct occurred after Mr. McLean had been drinking. On this occasion, Mr. McLean attempted to penetrate Mr. Chambers’ anus with his penis. Mr. Chambers did not recall Mr. McLean fondling his bottom. Within a few months, similar conduct becurred when Mr. Chambers was .at Mr. McLean’s house.
Finally, on two more occasions, Mr. McLean assaulted Mr. Chambers while he was sleeping in a bedroom in Mr. Chambers’ home. On one of these occasions, Mr. Chambers believed that Mr. McLean’s penis penetrated his anus. On both of these occasions, Mr. McLean was a guest staying overnight in the home. ■ By the final occurrence, Mr. Chambers was fourteen years old.
Mr. Chambers ultimately reported this conduct to his mother. He testified that his mother and father confronted Mr. McLean, who confessed to these crimes. They agreed not to report the matter to the police so long as Mr. McLean sought help from their church’s minister. Mr. Chambers did not see Mr. McLean again until he testified at this trial, did not know the victim in this case, and had never met the victim’s family prior to this trial.

McLean, 854 So.2d at 798-99.

Addressing the State’s assertion that Chambers’ testimony was admissible under section 90.404(2)(b), the trial court concluded that in enacting this new statute the Legislature was attempting to overrule or modify Saffor v. State, 660 So.2d 668 (Fla.1995), and Heuring v. State, 513 So.2d 122 (Fla.1987). The trial court also concluded that the Legislature intended section 90.403 to apply to evidence admissible under section 90.404(2)(b), requiring an evaluation of whether the probative value of the evidence outweighs its potential for unfair prejudice.

The trial court ruled that section 90.404(2)(b) governed the admissibility of Chambers’ testimony and rejected McLean’s argument that the statute violated his due process rights. The trial court determined, however, that pursuant to section 90.403, admission of all of Chambers’ testimony would be overly prejudicial. The trial court therefore excluded testimony that McLean confessed to Chambers’ parents and limited the testimony to events occurring in Chambers’ home.

Before Chambers testified, the trial court instructed the jury that the collateral crime evidence could be considered only for the “purpose of proving opportunity, intent, the absence of mistake or accident on the part of the defendant, or to corroborate the testimony of [J.N.].” The trial court repeated this instruction during the final jury charge.

The State briefly mentioned Chambers’ testimony during opening and closing statements but did not dwell on facts elicited from Chambers. The State also told the jury that Chambers’ testimony was introduced to help the jury decide whether J.N. was telling the truth and whether what happened to J.N. was a mistake or accident.

The jury convicted McLean of both attempted capital sexual battery and lewd molestation. The trial court denied a motion for new trial and entered judgment on only the conviction of lewd molestation. McLean was sentenced to thirty years’ imprisonment and designated a sexual predator.

On appeal to the Second District, McLean challenged the constitutionality of section 90.404(2)(b). He argued that the statute violates due process and that the application of the statute to his case violates the prohibition against applying laws ex post facto. McLean also argued that even if the statute is constitutional, the trial court erred in admitting the collateral crime evidence in this case. See McLean, 854 So.2d at 800. The Second District rejected each of these arguments and affirmed McLean's conviction and sentence. See id. at 802-03. However, because this Court adopted section 90.404(2)(b) “in a divided opinion that did not address constitutional issues,” and because of the provision’s implications “in many serious felony trials throughout the state,” the Second District certified the question as a matter of great public importance. Id. at 803.

ANALYSIS

Section 90.404(2)(b) provides that in a case in which a “defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” The Second District held that section 90.404(2)(b) does not violate due process when applied in a case in which identity is not an issue because

the new statute does not simply open the courthouse to all propensity evidence. As demonstrated in this case, section 90.403 still requires the trial court judge to act as a gatekeeper, weighing the probative value and the prejudicial effect of the proffered testimony. The testimony is introduced with a cautionary instruction to the jury, which is repeated in the final charge. The case law still requires that such testimony not become a central feature of the trial.

McLean, 854 So.2d at 802. The Fourth District Court of Appeal adopted the Second District’s reasoning in McLean and held section 90.404(2)(b) constitutional. See Ortiz v. State, 869 So.2d 1278, 1279 (Fla. 4th DCA 2004), notice invoking discretionary jurisdiction filed, No. SC04-751 (Fla. Apr. 26, 2004).

The constitutionality of section 90.404(2)(b) is a question of law reviewed by this Court de novo. This Court “re-solvefe] all doubts as to the validity of a statute in favor of its constitutionality, provided the statute may be given a fair construction that is consistent with the federal and state constitutions as well as with the legislative intent.” State v. Elder, 382 So.2d 687, 690 (Fla.1980).

In answering the certified question, we first review the case law from this Court addressing the admissibility of collateral crime evidence generally and in prosecutions for child molestation specifically. We examine the statute and review the federal case law that upholds the constitutionality of similar federal rules of evidence. We then explain why we answer the certified question in the negative and hold that section 90.404(2)(b) comports with due process when applied in a case where identity is not an issue. Finally, we decide whether the trial court erred in allowing the introduction of -evidence of prior acts of child molestation in this case.

A. Case Law Addressing the Admissibility of Collateral Crime Evidence

In Williams, we enunciated the general rule on the admissibility of collateral crime evidence: “[RJelevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy.” 110 So.2d at 659-60. In other words, “evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion.” Id. at 663.

However, in Heuring we explained that “[s]imilar fact evidence that the defendant committed a collateral crime is inherently prejudicial” because it “creates the risk that a conviction will be based on the defendant’s bad character or propensity to commit crimes, rather than on proof that he committed the charged offense.” 513 So.2d at 124. To “minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance.” Id.

In cases after Williams, we explained that the relevance of collateral crime evidence is often a function of similarity. See Williams v. State, 621 So.2d 413, 414 (Fla. 1993) (“Evidence of other crimes or acts may be admissible if, because of its similarity to the charged crime, it is relevant to prove a material fact in issue.”); Bryan v. State, 533 So.2d 744, 746 (Fla.1988) (“The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy.”). Specifically, in cases where the purported relevancy of the collateral crime evidence is the identity of the defendant, we have required “identifiable points of similarity” between the collateral act and charged crime that “have some special character or be so unusual as to point to the defendant.” Drake v. State, 400 So.2d 1217, 1219 (Fla. 1981). This is because “[t]he mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared.” Id. Thus, “[a] mere general similarity will not render the similar facts legally relevant to show identity.” Id.

“[Substantial similarity” is also required “when the [collateral crime] evidence is sought to be admitted for the specific purpose of establishing absence of mistake or accident.” Robertson v. State, 829 So.2d 901, 909 (Fla.2002). We have also explained that “[a]lthough similarity is not a requirement for admission of other crime evidence, when the fact to be proven is, for example, identity or common plan or scheme it is generally the similarity between the charged offense and the other crime or act that gives the evidence probative value.” Williams, 621 So.2d at 414. Thus, the similarity of the collateral act and charged offense goes to both the preliminary determination of relevancy and to the evidence’s probative value. As with any other relevant evidence, evidence of a prior bad act is inadmissible if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2005); see also Williams, 621 So.2d at 415 (“[EJvidence of other crimes that is relevant and therefore not barred by section 90.404(2)(a), may be excluded under section 90.403 if its probative value is substantially outweighed by undue prejudice.”).

Before allowing Williams rule evidence to be presented to the jury, the trial court must find that the State has proved that the defendant committed the collateral acts by clear and convincing evidence. See State v. Norris, 168 So.2d 541, 543 (Fla.1964) (concluding that the district court’s requirement that proof of the connection between the defendant and the collateral act be by clear and convincing evidence did not conflict with Williams); Henrion v. State, 895 So.2d 1213, 1216 (Fla. 2d DCA 2005) (“The offering party is required to prove the defendant’s connection with the similar act by clear and convincing evidence.”). Further, in order to reduce the risk that the jury will convict based on the defendant’s bad character, the State cannot make the collateral act a feature of the trial. See Steverson v. State, 695 So.2d 687, 689 (Fla.1997) (“[TJhe prosecution should not go too far in introducing evidence of other crimes. The state should not be allowed to go so far as to make the collateral crime a feature instead of an incident.”) (quoting Randolph v. State, 463 So.2d 186, 189 (Fla.1984)). Finally, at the time the evidence is admitted the trial court shall, if requested, “charge the jury on the limited purpose for which the evidence is received and is to be considered.” § 90.404(2)(c)(2), Fla. Stat. (2005); see also Robertson, 829 So.2d at 908. This cautionary instruction shall be repeated to the jury at the close of evidence. See § 90.404(2)(c)(2).

Because of the commonly held belief that individuals who commit sexual assaults are more likely to recidivate as well as societal outrage directed at child molesters, the admission of prior acts of child molestation has an even greater potential for unfair prejudice than the admission of other collateral crimes. However, beginning with our decision in Heuring, we have recognized that in eases involving sexual abuse against children, the child victim is “typically the sole eye witness and corroborative evidence is scant. Credibility becomes the focal issue.” 513 So.2d at 124. Further, because the victim knows the perpetrator, who is often another family member or close family friend, identity is not an issue. See id. Accordingly, we held that in cases where the defendant is accused of a sexual battery committed in the' familial setting, evidence of a prior sexual battery committed -within the familial setting is admissible under the Williams rule because this evidence is relevant to corroborate the victim’s testimony. See 513 So.2d at 124-25.

Applying this holding, we ruled in a trial on the charge that the defendant sexually battered his stepdaughter when she was between seven and twelve that the trial court did not err in admitting evidence that the defendant sexually battered his daughter when she was between seven and fifteen. See id. at 123, 125. Although the two offenses occurred approximately twenty years apart, we recognized that the “opportunity to sexually batter young children in the familial setting often occurs only generationally” and when the opportunity arises. Id. at 124.

Significantly, we discussed in Heuring a relaxed standard of admissibility for collateral crime evidence under these circumstances. See id. However, as we later explained, “we did not specifically address the question of how similar the charged offense and the collateral sex crime must be in order for the collateral crime evidence to be admissible.” Saffor, 660 So.2d at 671. Nor did we discuss the additional requirement in section 90.403 that hinges admissibility on whether the probative value of the evidence is “substantially outweighed by the danger of unfair prejudice, confusion of issues, needless presentation of cumulative evidence, or misleading the jury.” We have since made it clear that “[bjefore admitting Williams rule evidence, it is incumbent upon the trial court to make multiple determinations, including ... whether the prior crime meets the similarity requirements necessary to be relevant as set forth in our prior case law, ... and ... whether the prejudicial effect of the prior crime substantially outweighs its probative value.” Robertson, 829 So.2d at 907-08 (emphasis supplied) (footnotes omitted).

In State v. Rawls, 649 So.2d 1350 (Fla. 1994), we extended Heuring to allow the admission of similar fact evidence in non-familial sexual battery cases where the identity of the defendant is not an issue. We concluded that because the credibility of the victim “was very much an issue ... the similar fact evidence was properly admitted to corroborate his testimony.” Id. at 1354. We did not discuss the relaxed standard of admissibility alluded to in Heuring'. Instead we concluded that the charged and collateral offenses were “strikingly similar” and therefore met the “strict standards of the Williams rule.” Id. at 1353-54. We did not engage in a detailed weighing of the similar fact evidence under section 90.403. We simply stated that “the probative value of the similar fact evidence outweighed its potential for undue prejudice.” Id. at 1354.

Shortly thereafter, in Saffor, we explained how the relaxed standard of admissibility discussed in Heuring should be applied in cases where both the charged and collateral offenses occurred in the familial setting:

We hold ... that when the collateral sex crime and the charged offense both oe-eur in the familial context, this constitutes a significant similarity for purposes of the Williams rule, but that these facts, standing alone, are insufficient to authorize admission of the collateral sex crime evidence. There must be some additional showing of similarity in order for the collateral sex crime evidence to be admissible. The additional showing of similarity will vary depending on the facts of the case and must be determined on a case-by-case basis. Thus, we do not eliminate the requirement of similarity which under-girds the Williams rule. However, the strict similarity in the nature of the offenses and the circumstances surrounding their commission which would be required in cases occurring outside the familial context is relaxed by virtue of the evidence proving that both crimes were committed in the familial context.

660 So.2d at 672. We held that the trial court erred in admitting the collateral crime evidence under the relaxed standard for familial cases because there was only one similarity between the charged and collateral offenses other than the familial context. See id.

In sum, under this Court’s decisions, evidence of a collateral act of child molestation is relevant under the Williams rule to corroborate the victim’s testimony in both familial and nonfamilial child molestation cases. We have relaxed the requirement for strict similarity between the charged and collateral offenses in the familial context, but there must be some similarity other than the fact that both offenses occurred in the family. We have not extended the relaxed standard of admissibility to nonfamilial cases. However, in both familial and nonfamilial cases, the required showing of similarity must be made on a case-by-case basis, and the collateral act evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.

B. Section 90.404(2)(b), Florida Statutes

The provision now codified at section 90.404(2)(b) was enacted by the Legislature in 2001. See ch.2001-221, § 1, Laws of Fla. The provision specifically addresses the admissibility of collateral offenses in a case in which the defendant is charged with child molestation:

1. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.
2. For the purposes of this paragraph, the term “child molestation” means conduct proscribed by s. 794.011 or s. 800.04 when committed against a person 16 years of age or younger.

§ 90.404(2)(b). The Second District concluded that there is “no question” that in enacting section 90.404(2)(b) “the legislature was attempting to alter or overrule the application of existing case law and to simplify the rules of admissibility in child molestation cases.” McLean, 854 So.2d at 801.

“[Legislative intent is the polestar that guides a court’s statutory construction analysis. In determining the Legislature’s intent, we look first at the statute’s plain language.” Reynolds v. State, 842 So.2d 46, 49 (Fla.2002) (citations omitted). Section 90.404(2)(b) broadly provides that evidence of the defendant’s commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses occurred in the familial context or whether they share any similarity. To this extent, section 90.404(2)(b) abrogates our decisions in Heuring, Rawls, and Saffor.

However, the statute goes on to qualify this general statement by specifying that evidence of other acts of child molestation “may be considered for its bearing on any matter to which it is relevant.” Thus, relevancy remains the threshold question. See § 90.402, Fla. Stat. (2005) (“All relevant evidence is admissible, except as provided by law.”).

Moreover, “[w]here possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Montgomery v. State, 897 So.2d 1282, 1286 (Fla.2005) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist.; 604 So.2d 452, 455 (Fla.1992)). Under the Florida Evidence Code, chapter 90, Florida Statutes, “[r]elevant- evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403. As the State conceded at oral argument, evidence that is admissible under section 90.404(2)(b) remains subject to weighing under section 90.403.

Accordingly, the similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403.

The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct. On this point, the federal decisions upholding Federal Rules of Evidence 413, 414, and 415 against due process attacks are instructive. We discuss these decisions in more detail below.

C. Federal Rules of Evidence

Federal Rules of Evidence 413, 414, and 415 establish exceptions to the general ban on character evidence in cases involving sexual assault and child molestation. See Johnson v. Elk Lake School Dist., 283 F.3d 138, 150-51 (3d Cir.2002); United States v. LeMay, 260 F.3d 1018, 1024 (9th Cir.2001); United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir.1998). Rule 413 applies to criminal trials for sexual assault, rule 414 applies to criminal trials for child molestation, and rule 415 applies to civil trials in which a claim is predicated on the alleged commission of a sexual assault.

Rule 414 is very similar to section 90.404(2)(b) and provides in pertinent part:

In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Fed.R.Evid. 414(a).

The Ninth and Tenth Circuit Courts of Appeals have both held that rule 414 does not violate a defendant’s right to due process. See United States v. Castillo, 140 F.3d 874, 883 (10th Cir.1998); LeMay, 260 F.3d at 1027. The Eighth Circuit Court of Appeals has similarly held that rule 413 does not violate due process. See United States v. Mound, 149 F.3d 799, 800-01 (8th Cir.1998). Each of these courts found significant to its rejection of constitutional invalidity a determination that the collateral crime evidence allowed under these rules can still be excluded under Federal Rule of Evidence 403 if its prejudicial effect substantially outweighs its probative value. See Castillo, 140 F.3d at 882-83; Mound, 149 F.3d at 800-01; LeMay, 260 F.3d at 1026-27.

In Castillo, the Tenth Circuit explained:

Rule 403 excludes evidence, even if it is logically relevant, if its prejudicial effect substantially outweighs its probative value. Because of the presence of these protections, only a very narrow question remains — whether admission of Rule 414 evidence that is both relevant under 402 and not overly prejudicial under 403 may still be said to violate the defendant’s due process right to a fundamentally fair trial. To ask the question is to answer it.
The due process violation that the defendant alleges here is that Rule bH evidence is so prejudicial that it violates the defendant’s fundamental right to a fair trial. Application of Rule JjOS, however, should always result in the exclusion of evidence that has such a prejudicial effect. See Fed.R.Evid. 403 (excluding evidence if its probative value is substantially outweighed by danger of unfair prejudice). Thus, application of Rule 403 to Rule 414 evidence eliminates the due process concerns posed by Rule 414.

140 F.3d at 882-83 (first emphasis supplied).

The Ninth Circuit has also concluded that with the protections of rule 403’s balancing test in place, rule 414 does not violate the federal Due Process Clause:

Potentially devastating evidence of little or no relevance would have to be excluded under Rule 403. Indeed, this is exactly what Rule 403 was designed to do. We therefore conclude that as long as the protections of Rule 403 remain in place so that district judges retain the authority to exclude potentially devastating evidence, Rule 414 is constitutional.

LeMay, 260 F.3d at 1027; accord Mound, 149 F.3d at 800-01 (“The question' is thus whether Rule 413, subject to the constraints of Rule 403, is constitutional. We hold that it is.”).

The similarity of the offenses is one factor that federal courts consider in assessing whether the probative value of evidence of prior acts of child molestation outweighs its potential prejudice. See LeMay, 260 F.3d at 1028 (stating that one factor the trial courts must consider in conducting the rule 403 analysis is “the similarity of the prior acts to the acts charged”); United States v. Sumner, 204 F.3d 1182, 1187 (8th Cir.2000) (concluding that the trial court did not abuse its discretion in admitting prior act evidence under rule 414 where “the prior acts were relatively recent in time and were substantially similar to the charged assaults”).

D. Due Process and Section 90.404(2)(b)

Collateral crime evidence violates a defendant’s right to due process if it is so prejudicial that it denies the defendant a fair trial. See LeMay, 260 F.3d at 1027; Castillo, 140 F.3d at 883. Like the federal courts applying federal rule 403, we conclude that the application of section 90.403 should always render evidence inadmissible when it has such a prejudicial effect. In other words, if the potential prejudice is so- great that admission of the collateral crime evidence will.violate the defendant’s right to a fair trial, then the probative value of the evidence must be “substantially outweighed by the danger of- unfair prejudice.” § 90.403.

As Judge Altenbernd observed in the decision below:

[T]he new statute does not simply open the courthouse to all propensity evidence. As demonstrated in this case, section 90.403 still requires the trial court judge to act as a gatekeeper, weighing the probative value and the prejudicial effect of the proffered testimony. The testimony is introduced with a cautionary instruction to the jury, which is repeated in the final charge. The case law still requires that such testimony not become a central feature of the trial. Under these circumstances, when an issue of identity is not in dispute, we cannot conclude that this new rule of evidence violates the fundamental fairness required by due process.

McLean, 854 So.2d at 802.

The trial court’s gatekeeping function is critical. In every case, the trial court must conduct the weighing required by section 90.403. As the Ninth Circuit noted, “[b]ecause of the inherent strength of the evidence that is covered by [Rule 414], when putting this type of evidence through the [Rule 403] microscope, a court should pay careful attention to both the significant probative value and the strong prejudicial qualities of that evidence.” LeMay, 260 F.3d at 1027 (alterations in original) (quoting Doe v. Glanzer, 232 F.3d 1258, 1268 (9th Cir.2000)) (internal quotation marks omitted).

To guide the trial courts in deciding whether to admit evidence of prior acts of child molestation when it is offered to corroborate the victim’s testimony, we discuss the steps that the trial courts should take. Of course, before even considering whether to allow evidence of prior acts to be presented to the jury, the trial court must find that the prior acts were proved by clear and convincing evidence.

In assessing whether the probative value of evidence of previous molestations is substantially outweighed by the danger of unfair prejudice, the trial court should evaluate: (1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances. This list is not exclusive. The trial courts should also consider other factors unique to the case.

Factors other than the potential for unfair prejudice are also pertinent in a section 90.403 analysis. The trial court must determine whether the evidence of the prior acts will confuse or mislead jurors by distracting them from the central issues of the trial. Also necessary is an assessment whether the evidence is needlessly cumulative of other evidence bearing on the victim’s credibility, the purpose for which this evidence may be introduced. Further, in accord with our precedent, the trial court must guard against allowing the collateral-crime testimony to become a feature of the trial. Finally, if requested, the trial court shall give an appropriate cautionary instruction both at the time the evidence is presented and in its final charge to the jury.

E. This Case

McLean asserts that even if section 90.404(2)(b) is constitutional, the trial court erred in admitting the prior acts of child molestation under section 90.403. We conclude that the trial court thoroughly examined the proffered evidence and did exactly what was required under section 90.403. The trial court excluded much of Chambers’ testimony, expressly finding that allowing all of the collateral acts evidence would be unduly prejudicial by “so imflam[ing] and incense[ing] the jury as to [McLean’s] propensities” that he would be convicted not on the crime charged but on those collateral offenses. Thus, the trial court allowed only limited evidence regarding the occasions when-McLean was an overnight guest at Chambers’ home to be presented to the jury. This evidence was not made a feature of the trial and the trial court gave cautionary instructions to the jury both before Chambers’ testimony and during the final charge. Under these circumstances we conclude that the trial court did not err in admitting the limited portions of Chambers’ testimony. We commend the trial court for carefully performing its important gatekeeping function and urge all trial courts to very carefully exercise their gatekeeping authority in order to guard the due process rights of defendants.

CONCLUSION

We answer the certified question in the negative and hold that section 90.404(2)(b) does not violate due process when applied in a case in which the identity of the defendant is not an issue and the provision is used to admit evidence to corroborate the alleged victim’s testimony. We further conclude that the trial court did not err in admitting the limited portions of Chambers’ testimony under section 90.403. Accordingly, we approve the Second District’s decision.

It is so ordered..

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

      . The district court opinion states that “J.N. stated that McLean told him not to report this incident to anyone.’’ Id. at 798. However, Wilkins testified: “And I asked him if his uncle [McLean] told him not to tell anyone, and he again stated no.” J.N. also testified that McLean had not said anything to him during the entire episode.

      . The Sécond District explained that "[t]he transcript of the sentencing hearing is not in the record, and the reason for the single judgment is not explained. Presumably, the trial court concluded that the two offenses arose from a single act that could not support dual convictions. The State has not challenged this ruling on appeal.” McLean, 854 So.2d at 800 n. 4.

      . See In re Amendments to the Florida Evidence Code, 825 So.2d 339, 341-42 (Fla.2002) (Pariente, J., concurring in part and dissenting in part).

      . This rule is codified at section 90.404(2)(a), Florida Statutes (2005), which provides:
      Similar fact evidence of other' crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

      . The standard jury instruction provides:
      The evidence you are about to receive concerning evidence of other crimes allegedly committed by the defendant will be considered by you for the limited purpose of proving [motive] [opportunity] [intent] [preparation] [plan] [knowledge] [identity] [the absence of mistake or accident] on the part of the defendant [or] [to corroborate the testimony of (name of child)] and you shall consider it only as it relates to those issues.
      However, the defendant is not on trial for a crime that is not included in the [information] [indictment],
      Fla. Stand. Jury Instr. (Crim.) 2.4.

      . We later explained that "[t]here is no single definition or description of what constitutes a 'familial relationship’ in the context of child sexual battery.” State v. Rawls, 649 So.2d 1350, 1353 (Fla.1994). Therefore, "the determination of whether a familial relationship exists must be done on a case-by-case basis.” Id. We also explained that "[a] legitimate custodial relationship would be the equivalent of a familial relationship for purposes of permitting the introduction of similar fact evidence to corroborate the victim’s testimony of sexual battery under Heuring " and referred to Hallberg v. State, 649 So.2d 1355 (Fla. 1994), "for a discussion of what constitutes a custodial relationship.” Rawls, 649 So.2d at 1353 n. 2.

      . The provision formerly appearing in subsection (2)(b) of the statute, which concerns notice and jury instructions, was redesignated subsection (2)(c). See id.

      . Rule 413 provides in pertinent part:
      In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
      Fed. R. Evid 413(a). The Eighth Circuit concluded that its analysis of rule 413 also applies to rule 414. See Mound, 149 F.3d at 800 n. 2.

      . Rule 403 is similar to section 90.403, Florida Statutes, and provides:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

      . Just as the Second District did not review the constitutionality of the statute if used to admit prior acts of child molestation when identity is an issue, we similarly decline to address this issue here:
      Identity has always been the most troublesome issue confronted by the Williams rule. See generally Rawls, 649 So.2d at 1353; Morman [v. State, 811 So.2d 714, 718 (Fla. 2d DCA 2002),] (Altenbemd, J., concurring). Whether section 90.403 is sufficient to monitor Williams rule evidence in cases involving identity, or whether due process requires a special rule of "striking similarity” and shared unique characteristics in cases of disputed identity remains an open question in our minds. Accordingly, we conclude that the constitutionality of this statute when addressing the issue of identity should be reviewed in another case where identity is a disputed issue.

        McLean, 854 So.2d at 802 (footnote omitted).

      . The federal appellate courts have similarly outlined various factors for the district courts to consider in evaluating this type of evidence under federal rule 403. For example, the Ninth Circuit requires that the district courts consider "(1) the similarity of the prior acts to the acts charged, (2) the closeness in time of the prior acts to the acts charged, (3) the frequency of the prior acts, (4) the presence or lack of intervening circumstances, and (5) the necessity of the evidence beyond the testimonies already offered at trial.” LeMay, 260 F.3d at 1028 (quoting Glanzer, 232 F.3d at 1268). The Tenth Circuit has stated that rule 403 requires the trial court to consider
      1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing the probative dangers, a court considers: 1) how likely is it such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to prove the prior conduct.

        Enjady, 134 F.3d at 1433 (quoting Mark A. Sheft, Federal Rule of Evidence 413: A Dangerous New Frontier, 33 Am.Crim. L.Rev. 57, 59 n. 6 (1995)).

      . We decline to address the other issues raised by McLean that are beyond the scope of the certified question. See Wheaton v. State, 789 So.2d 975, 975 n. 2 (Fla.2001) (declining to address an issue raised that was beyond the scope of the certified question).