author: PER CURIAM. CANTERO, J., PARIENTE, C.J.,

text:
    STATE of Florida, Petitioner, v. Herbert DICKEY, Respondent.
    No. SC05-516.
    Supreme Court of Florida.
    April 20, 2006.

      Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief Criminal Appeals, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer,, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
   PER CURIAM.

We review the First District Court of Appeal’s decision in Dickey v. State, 30 Fla. L. Weekly D443 (Fla. 1st DCA Feb.15, 2005), which certified the following question to be of great public importance:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE-ENHANCING CONSEQUENCES OF A DEFENDANT’S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM?

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question in the negative. As explained below, we hold that such claims are insufficient to meet both prongs of the test for alleging the ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

I. FACTS

In February 1996, Herbert Dickey pled no contest to charges of criminal mischief and failure to appear, both third-degree felonies with statutory, five-year maximum sentences. See §§ 806.13(l)(b)(3), 843.15, Fla. Stat. (1995). After determining that the plea was voluntarily entered, the court accepted it and, pursuant to a plea agreement on the criminal mischief charge, withheld adjudication and sentenced Dickey to two years’ probation, which would terminate early upon Dickey’s paying restitution. On the failure-to-appear charge, the court also withheld adjudication and sentenced Dickey to a concurrent two-year probationary term.

In May 2001, Dickey, then a prisoner in Alabama, filed in a Florida circuit court a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raised four grounds for relief, only one of which is pertinent here. Dickey alleged that his Alabama sentence was enhanced based on his prior Florida conviction. He claimed that his defense counsel in 1996 told him that his conviction “could not be used to enhance any future sentence” and that he “would not have pled guilty otherwise.”

The circuit court found Dickey’s ineffective assistance claim was timely filed because Dickey based it on newly discovered evidence, i.e., Alabama’s use of the Florida conviction to enhance his sentence. 30 Fla. L. Weekly at D443. The court summarily denied Dickey’s motion, -however, specifically finding that the misadviee claim regarding sentence-enhancement was not actionable. The court applied Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002), a decision we have since quashed on other grounds. See Bates v. State, 887 So.2d 1214, 1218 (Fla.2004). Below we first explain the conflict in the district courts over ineffective assistance claims such as Dickey’s and then answer the certified question.

II. THE MISADVICE ISSUE IN THE DISTRICT COURTS

We have stated that defense counsel and the court have a duty to inform a defendant of the direct consequences of a plea. State v. Ginebra, 511 So.2d 960, 960-61 (Fla.1987), superseded by In re Amendments to Fla. Rules of Crim. Pro., 536 So.2d 992 (Fla.1988), as recognized in State v. DeAbreu, 613 So.2d 453 (Fla.1993). However, in Major v. State, 814 So.2d 424, 426-27 (Fla.2002), we reiterated that the law does not require a defendant to be informed of collateral consequences and determined that the potential for sentence enhancement for a future crime is just such a collateral consequence. Thus, we held, in answer to a certified question, that “neither the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future.” Id. at 481.

With that question resolved, all five district courts of appeal began grappling -with the question of whether a defense counsel’s providing wrong advice about this collateral effect constitutes ineffective assistance of counsel. Three courts — the Second, Third, and Fifth — have held that defense counsel’s providing erroneous advice about the potential for use of a conviction to enhance the sentence for a future crime does not constitute ineffective assistance of counsel or render a plea involuntary. See Stansel v. State, 825 So.2d 1007, 1009-10 (Fla. 2d DCA 2002) (“Even in cases where defense counsel mistakenly informs the defendant that his guilty plea cannot be used to enhance a subsequent sentence, we believe public policy demands that the defendant bear the consequences of his decision to commit future crimes.”); Scott v. State, 813 So.2d 1025, 1026 (Fla. 3d DCA 2002) (“A defendant is not entitled to relief where he has been given affirmative misadvice regarding the possible sentence-enhancing consequences of a plea in the event that the defendant commits a new crime in the future.”); McKowen v. State, 831 So.2d 794, 796 (Fla. 5th DCA 2002) (concluding “that a defendant is not entitled to receive postconviction relief based on a claim that he relied on the misadvice of counsel that his plea would have no adverse sentencing effect should he decide to commit future crimes”). The Fourth District Court of Appeal, however, has held that this affirmative misadvice claim is a valid ineffective assistance claim on which relief may be granted. See Smith v. State, 829 So.2d 940, 941 (Fla. 4th DCA 2002) (citing cases).

Finally, the First District originally aligned itself with the Second, Third, and Fifth Districts. See Bates, 818 So.2d at 630-631. In Bates, the district court also certified the question presented here. On review, we quashed the decision on other grounds, finding that Bates’s petition for writ of error coram nobis was untimely and therefore procedurally barred. 887 So.2d at 1215.

In the case under review, the First District again considered the issue, and now reached the opposite conclusion. See Dickey, 30 Fla. L. Weekly at D444. The court held “that allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are cognizable as an ineffective assistance of counsel claim.” Id. Thus, the First District agreed with the Fourth District, certified conflict with the other district courts, and also certified the question to this Court. Id. at D444, D446. We now answer the certified question.

III. STRICKLAND AND THE CERTIFIED QUESTION

In Strickland, the Supreme Court created a two-pronged test for determining whether defense counsel provided constitutionally deficient assistance to a defendant. 466 U.S. 687, 104 S.Ct. 2052. First, the defendant must establish specific acts or omissions of counsel that were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Second, the defendant must demonstrate prejudice- — that is, the defendant must demonstrate “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S.Ct. 2052.

Subsequently, in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Court applied the Strickland test to claims of ineffective assistance in pleading guilty to a crime. The Court modified the prejudice requirement, stating that in plea cases the issue is “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366.

In his postconviction motion, Dickey alleged that his counsel in 1996 was constitutionally ineffective because he erroneously advised Dickey that the conviction resulting from his plea could not be used to enhance the sentence for any future crime. The conviction, however, was used to enhance his Alabama sentence on a crime he later committed. Dickey declared that his 1996 plea was thus involuntary because he would not have pled guilty had he been correctly apprised about this issue. When such allegations are not conclusively rebutted by the record, we must accept them as true. See Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000).

As noted above, we have previously held that counsel has no duty to advise a defendant of the potential sentence-enhancing effects a conviction may have on the sentence for a crime committed in the future. Major, 814 So.2d at 431. We reasoned that defendants are not entitled to advice about the collateral consequences of their pleas in a pending case. In this case, Dickey has alleged that counsel erroneously advised him regarding a collateral effect. Thus, we are squarely confronted with this question: whether a defendant’s claim that counsel affirmatively misadvised him that his conviction could not be used to enhance the sentence for a future crime and that absent this erroneous advice he would not have pled guilty or nolo conten-dere but would have gone to trial facially meets the requirements of Strickland.

Although we did not decide this question in Bates, 887 So.2d at 1215, several members of the Court addressed it in concurring opinions, analyzing the claim under Strickland. In an opinion in which Justice Lewis concurred, Justice Wells concluded that, assuming the misadvice regarding the enhancement potential of a conviction on a sentence for a future crime was deemed deficient performance under Strickland, the claim failed the second prong of the ineffective assistance test. Id. at 1220 (Wells, J., concurring specially). He reasoned the “cause of prejudice to [the defendant] is the separate and independent new crime for which he was convicted after the plea was entered.” Id. The defendant thus could not plead and prove prejudice. Id.

In a separate concurring opinion, Justice Cantero also concluded that such allegations are not cognizable as claims of ineffective assistance of counsel. Id. at 1221 (Cantero, J., specially concurring). Justice Cantero reasoned that “[a]ny wrong advice about a current conviction’s potential effect on the conviction or sentence for a future crime is irrelevant to the plea and sentence on which counsel is advising and cannot constitute ineffective assistance of counsel in the case at issue.” Id.

These differing opinions are encompassed in our decision here. Having fully considered the issue, we answer the certified question in the negative. We conclude that allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are not cognizable as an ineffective assistance of counsel claim. A majority of this Court concludes that claims that a defendant entered a plea based on wrong advice about a potential sentence enhancement for a future crime fail to meet the Strickland test, either because such claims do not demonstrate deficient performance in the case at issue or because, as a matter of law, any deficient performance could not have prejudiced the defendant in that case. Therefore, we hold that wrong advice about the consequences for a crime not yet committed cannot constitute ineffective assistance of counsel.

IV. CONCLUSION

We hold that a claim that counsel affirmatively misadvised a defendant about the collateral effect of future sentence-enhancing potential does not meet Strickland’s requirements for a valid claim of ineffective assistance of counsel. Accordingly, we answer the certified question in the negative and quash the district court’s decision.

It is so ordered.

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

CANTERO, J., concurs with an opinion.

PARIENTE, C.J., dissents with an opinion, in which ANSTEAD and QUINCE, JJ., concur.

CANTERO, J.,

concurring.

I concur in the majority’s decision to answer “no” to the certified question and its holding that defense counsel’s erroneous advice about the possible effects of a plea on potential sentences for future crimes does not constitute ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As the majority explains, to be facially sufficient, a defendant’s claim that counsel provided ineffective assistance must satisfy two requirements. The defendant must allege that counsel committed a specific error sufficiently egregious as to fall outside the range of reasonably competent performance (known as the deficient performance prong), and that, but for this serious error, there is a reasonable probability the outcome of the proceeding would have been different (known as the prejudice prong). Id. at 687, 694, 104 S.Ct. 2052. When a defendant’s allegations satisfy both requirements, and they are not clearly rebutted by the record, the trial court must hold an evidentiary hearing. Failure to establish either prong defeats the claim.

Because the Court is divided on that issue, the majority does not specify which of Strickland’s two prongs Dickey fails to satisfy. In Bates v. State, 887 So.2d 1214 (Fla.2004), where we were presented with essentially the same certified question, we declined to answer it, disposing of the case on other grounds. In a specially concurring opinion, however, I concluded that Bates’s claim did not state a cognizable claim of ineffective assistance of counsel because he failed, as a matter of law, to satisfy the deficient performance prong. Id. at 1221. For the reasons stated in that opinion, and reiterated below, I find that Dickey’s allegations satisfy the prejudice prong of Strickland, but that such wrong advice about the consequences of potential future crimes cannot constitute deficient performance in the case in which the defendant is pleading guilty.

A. Guilty Pleas and the Prejudice Prong of Ineffective Assistance Claims

In Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the United States Supreme Court applied the Strickland test to ineffective assistance claims related to guilty pleas. As to such claims, the Court held that the defendant must “show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. We recently applied Hill in a murder case where the defendant claimed that her attorney failed to inform her about an involuntary intoxication defense. See Grosvenor v. State, 874 So.2d 1176 (Fla.), cert. denied, 543 U.S. 1000, 125 S.Ct. 627, 160 L.Ed.2d 458 (2004). We concluded that “the proper interpretation of Hill is to follow its express language.” Id. at 1181. That is, to meet the prejudice prong, a defendant challenging a guilty plea based on ineffective assistance of counsel does not have to allege ultimate success at trial; only that the defendant would not have pled guilty. Id. Thus, in Bates, I concluded that a defendant’s claim that “he would not have pled guilty but for counsel’s wrong advice and would have gone to trial” was sufficient to allege prejudice — subject, of course, to proof at an evidentiary hearing. Bates, 887 So.2d at 1222.

In this case, Dickey pled no contest to two third-degree felony charges. Several years later, he filed a postconviction motion attacking the voluntariness of that plea. He alleged: that his sentence in Alabama .had been enhanced based on his earlier Florida conviction; that at the time of his prior plea his counsel had erroneously advised him that the Florida conviction could not be used to enhance a sentence for a future crime; and that he would not have pled guilty had he been correctly advised. This “but-for” claim is precisely what is required under the Supreme Court’s decision in Hill and our own analysis in Grosvenor. Thus, Dickey has adequately alleged prejudice for purposes of Strickland. But another obstacle remains.

B. Deficient Performance in Advising about the Consequences of Future, Uncommitted Crimes

Although Dickey has adequately alleged prejudice under Strickland, I conclude that, as a matter of law, he lias not stated a facially valid claim that his counsel performed deficiently, which is the first prong of Strickland. The First District essentially concluded that whenever defense counsel gives a wrong answer to a defendant’s hypothetical legal question about a guilty plea, the defendant has stated a facially sufficient claim of ineffective assistance as long as he also alleges that but for the wrong advice he would not have pled guilty. Dickey, 30 Fla. L. Weekly at D445. The court stated that failing to recognize such a claim would constitute disapproval of a defendant’s thought process (his intent to commit, or at least reflection about, future crimes). Id. I disagree. Regardless of a defendant’s intent to commit another crime, any erroneous advice about the potential enhancement for sentences on a crime yet to be committed is irrelevant to the plea and sentence at hand. As I said in Bates, “Bates never would have been sentenced as a habitual offender had he not decided to commit another felony. His counsel’s advice, wrong though it was, would not have affected him at all.” 887 So.2d at 1223.

We have held that defense counsel has no duty to advise defendants about a plea’s collateral consequences, and therefore failure to do so does not constitute ineffective assistance. See Major v. State, 814 So.2d 424, 426-27 (Fla.2002). It is nevertheless true that in certain cases involving particular collateral consequences, when counsel have chosen to give such advice, courts have recognized claims of ineffective assistance when it was erroneous. See, e.g., State v. Leroux, 689 So.2d 235, 238 (Fla.1996) (reversing for evidentiary hearing on claim that counsel wrongly advised defendant about the actual amount of time to be served on a negotiated sentence); Joyner v. State, 795 So.2d 267, 268 (Fla. 1st DCA 2001) (reversing where the defendant alleged that counsel wrongly advised him that he would not lose his right to vote because of a youthful offender conviction). I do not quarrel with those decisions. Not every instance of erroneous advice about the collateral consequences of a guilty plea, however, will constitute error “so serious that’ counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In Bates I explained that

a fundamental difference exists between incorrect advice about collateral consequences of a plea such as deportation and loss of employment and incorrect advice about future crimes. In the former cases, the consequences, while collateral to the conviction, are immediate, result directly from the plea at issue, and occur regardless of the defendant’s future conduct. When the consequence •is a sentence enhancement for a future crime, however, it is contingent on the commission of another felony, which may never occur. It is the defendant’s decision to commit another felony, not the wrong advice, that produces the enhanced sentence.

887 So.2d at 1223. Unlike other collateral consequences of a plea, such as deportation, the future enhancement of a sentence based on a crime not yet committed does not necessarily follow upon conviction for the present crime. It may not follow at all. It is only a potential effect, and it is contingent solely on the defendant’s own decision to commit another crime — -not on any misstatements by defense counsel.

In Hill, the Supreme Court emphasized the importance of the “fundamental interest in the finality of guilty pleas,” 474 U.S. at 58, 106 S.Ct. 366, and cautioned courts about setting aside guilty pleas based on new grounds by citing its opinion in United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), as follows:

“Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions re-suit from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.”

Id. at 784, 99 S.Ct. 2085 (quoting United States v. Smith, 440 F.2d 521, 528-529 (7th Cir.1971) (Stevens, J., dissenting)); see also Witt v. State, 387 So.2d 922, 925 (Fla.1980) (“The reasons for narrowly limiting the grounds for collateral attack on final judgments are well known and basic to our adversary system of justice.”). Thus, courts do not lightly recognize new grounds for postconviction relief.

C. Conclusion

In recognizing and delineating the boundaries of new grounds for postconviction relief, courts must carefully consider the effects of their decisions on the administration of justice. The potential that a plea in a pending case will serve as basis for enhancing a future sentence for a crime not yet committed is not only irrelevant to the pending plea and sentence and their direct and immediate collateral effects, but also completely contingent upon a future illegal act of the defendant. Accordingly, erroneous advice about the consequences of such a crime does not constitute deficient performance and is not cognizable as a claim for ineffective assistance of counsel.

PARIENTE, C.J.,

dissenting.

I respectfully dissent. Because affirmative misadvice of counsel on future sentence-enhancing consequences may weigh heavily in a defendant’s decision whether to accept a plea, we should not exempt this consideration from an assessment of the defendant’s reliance on counsel’s misconduct under the tests set out in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and our recent opinion in Grosvenor v. State, 874 So.2d 1176 (Fla.2004). I believe that an allegation that the defendant would not have pled guilty or nolo contendere if not misadvised by counsel sets forth a legally cognizable claim of prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For this reason, Dickey should receive an evidentiary hearing on his claim that counsel gave prejudicially deficient advice that misled Dickey into pleading no contest in 1996 to felony criminal mischief.

In distinguishing the claim of affirmative misadvice on future sentence-enhancing consequences from other legally cognizable claims of misadvice, the majority and concurring opinions focus on the fact that the alleged misadvice pertains to a crime not yet committed. This focus is misplaced because the pertinent inquiry in determining prejudice from ineffective assistance of counsel relating to a guilty plea is whether counsel’s deficient performance misled the defendant into giving up the constitutional right to a jury trial. The United States Supreme Court has made this clear in Hill, in which it held that to prevail on an ineffective assistance claim relating to a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U.S. at 59, 106 S.Ct. 366. In Grosvenor, this Court applied Hill to a claim that counsel was ineffective in failing to advise a defendant of an available defense. See 874 So.2d at 1181.

Creating a distinction between misadvice about the future sentence-enhancing consequences of a plea and other collateral consequences improperly shifts the focus away from whether the misadvice led the defendant to accept a plea. See Bates v. State, 887 So.2d 1214, 1219 (Fla.2004) (Pariente, C.J., concurring specially). As I noted in Bates, Judge Blue has succinctly summarized the correct analysis for misad-vice claims:

Without oversimplifying matters, a person charged with a crime is constitutionally entitled to a trial by jury. When entering a plea, the person waives this constitutional right. If the right is waived in reliance on the advice of a court-appointed attorney, and the attorney’s advice is legally wrong, the defendant has received ineffective assistance of counsel.

Alexander v. State, 830 So.2d 899, 900 (Fla. 2d DCA 2002) (Blue, C.J., concurring), quoted in Bates, 887 So.2d at 1219 (Pariente, C.J., concurring specially).

No valid policy reason supports preclusion of postconviction relief for the type of misadvice alleged in this case. Judges Davis and Allen of the First District have accurately observed that the concern that giving advice on the possible effect of a plea on a future sentence will somehow encourage future criminality does not withstand scrutiny. Writing for the majority in this case below, Judge Davis stated:

We are also unpersuaded by the argument that to afford relief on the present claim is to encourage recidivism. The logic of this assertion escapes us, as we cannot discern how telling an accused defendant that he will face harsher penalties if he commits another crime in the future can be construed as encouraging the defendant to go out and break the law again. On the contrary, it is our opinion that advising an accused that his plea and conviction cannot be used to enhance a future sentence is more likely to encourage recidivism.

Dickey v. State, 30 Fla. L. Weekly D443, D445-46 (Fla. 1st DCA Feb.15, 2005) (citations omitted). Judge Allen has stated, “I can easily understand how giving a defendant this information might discourage him from entering a plea, but I have difficulty understanding how it might encourage him to commit crimes in the future.” Bates v. State, 818 So.2d 626, 632 (Fla. 1st DCA 2002) (Allen, C.J., concurring in part and dissenting in part), quashed, 887 So.2d 1214 (Fla.2004). In other words, we should encourage attorneys to ensure that defendants understand the increased punitive consequences of committing another crime.

Judges Davis and Allen have also observed that by precluding claims based on misadvice as to future sentence-enhancing consequences, in reality we are inappropriately scrutinizing and disapproving the defendant’s thought processes in deciding whether to enter the plea. Dickey, 30 Fla. L. Weekly at D445; Bates, 818 So.2d at 632. Although it is always the hope that an offender’s first felony sanction will be his or her last, recidivism is a fact of life in the criminal justice system. Consequently, criminal defendants are justifiably concerned about the effect of today’s guilty plea on a sentence for a crime committed in the future. For some defendants this factor may be a crucial consideration in the decision to plead guilty or no contest.

In this case, Dickey claimed that he was misadvised that he was pleading to a misdemeanor rather than a felony. He asserted that because a felony has greater future sentence-enhancing consequences, he would not have entered the plea had he been properly advised. The record does not conclusively refute this claim. Although the trial court announced that the plea was to “felony criminal mischief,” Dickey was not apprised that the maximum punishment was five years in prison. Further, a threshold of $1,000 in property damage is the only element dividing felony criminal mischief from the misdemeanor version, a lesser included offense. § 806.13(l)(b)(2), Fla. Stat. (2005). Dickey could easily have believed he was pleading to the misdemeanor offense.

The distinction between a felony and misdemeanor can lead to dramatically different consequences in this state if the offender commits another felony, even when adjudication is withheld. For example, assuming Dickey had a prior felony conviction, another third-degree felony committed during the time that Dickey was on probation based on his plea in this case could have doubled his potential prison sentence on the subsequent felony from five to ten years. See § 775.084(l)(a), (2), Fla. Stat. (1995).

Accordingly, when advising a defendant who inquires about the future consequences of a felony plea offer, competent Florida counsel should explain how the conviction or plea may subsequently be used against the defendant under section 775.084, which can greatly increase the maximum authorized sentence and trigger mandatory minimum terms for some convictions. The sharp increase in potential sentence exposure under the several recidivist enhancement schemes in section 775.084 (habitual felony offender, habitual violent felony offender, three-time violent felony offender, violent career criminal) far exceeds the normal expectation “that a prior conviction for a crime may cause [a defendant] to be punished more harshly than a first-time offender.” Stansel v. State, 825 So.2d 1007, 1009 (Fla. 2d DCA 2002).

According to his postconviction motion, Dickey’s no contest plea in Florida was used to enhance his sentence on a subsequent felony in Alabama. Dickey does not assert, and the First District did not hold, that he should have been advised of the potential for habitualization on a subsequent felony under Alabama law. As noted by the First District, counsel is not required to “familiarize him or herself with every habitualization statute throughout the land.” Dickey, 30 Fla. L. Weekly at D446. Advice of the potential future sentence-enhancing consequences under section 775.084 would be sufficient warning to negate an ineffective assistance claim even if the plea is used to enhance a sentence imposed by another state or the federal government. If a defendant can establish that counsel failed to provide accurate information on the potential recidivist enhancement consequences under Florida law when asked for this information, and that the defendant would not have accepted the plea had counsel given correct advice, he or she should be entitled to withdraw the plea.

Dickey’s motion contains a facially sufficient allegation of both deficient performance and prejudice. Accordingly, in this case, I would answer the certified question in the affirmative and approve the First District’s conclusion that Dickey set forth a legally cognizable claim of ineffective assistance of counsel for misadvice of counsel on the collateral consequences of a plea.

ANSTEAD and QUINCE, JJ., concur.

      . The court terminated Dickey's probation five months later in June 1996, upon Dickey’s payment of the full amount of restitution.

      . As part of the allegation, Dickey claimed that counsel told him his crime was a misdemeanor. The district court did not discuss this part of the claim. We note, however, that the record shows that during the plea colloquy, the court asked Dickey if he wanted to enter a plea to "the charge of felony criminal mischief and failure to appear,” and Dickey said he did.

      .Because the State has not raised the issue, because it is beyond the question certified, and because we hold that Dickey is not entitled to relief on the merits, we need not decide whether the enhancement of Dickey’s Alabama sentence based on the prior Florida conviction constitutes "newly discovered evidence" under Florida Rule of Criminal Procedure 3.850, so as to allow Dickey to file his motion more than two years after his Florida conviction.

      . We recognize that a determination that the claim facially meets the requirements of Strickland would not necessarily entitle the defendant to withdraw his plea. Rather, the circuit court would be required to hold an evidentiary hearing on the claim.

      . In Grosvenor, we explained that at the evi-dentiary hearing, the trial court would determine, among other things, the credibility of the defendant’s assertion that if given advice about a voluntary intoxication defense, she would have foregone a guilty plea and elected to go to trial. We noted that "in determining whether a reasonable probability exists that the defendant would have insisted on going to trial, a court should consider the totality of the circumstances surrounding the plea, including such factors as whether a particular defense was likely to succeed at trial, the colloquy between the defendant and the trial court at the time of the plea, and the difference between the sentence imposed under the plea and the maximum possible sentence the defendant faced at a trial." 874 So.2d at 1181-82.

      . For offenses committed after the May 30, 1997, effective date of the Prison Releasee Reoffender Act, see ch. 97-239, Laws of Fla., counsel should also advise his or her client as to mandatory terms required on sentences for subsequent felonies under the Act, codified at section 775.082(9), Florida Statutes (2005).


source: Caselaw Access Project

author: ANSTEAD, J. CANTERO, J.,

license: Public Domain

text:
    McKENZIE CHECK ADVANCE OF FLORIDA, LLC., etc., et al., Petitioners, v. Wendy BETTS, etc., Respondent.
    No. SC04-1825.
    Supreme Court of Florida.
    April 27, 2006.
    Virginia B. Townes of Akerman, Senter-fitt, Orlando, FL, and Mitchell Berger of Berger Singerman, Fort Lauderdale, FL, for Petitioner.
    Christopher C. Casper of James Hoyer, Newcomer and Smiljanich, P.A., Tampa, FL, E. Clayton Yates of Yates and Mancini, LLC, Fort Pierce, FL, and Richard A. Fisher, Cleveland, TN, for Respondent.
    Warren H. Husband and James R. Daughton, Jr. of Meetz, Hauser, Husband and Daughton, P.A., on behalf of the Community Financial Services Association of America and the Financial Service Centers of Florida, Inc.; and Lynn Drysdale of Jacksonville Area Legal Aid, Inc., Jacksonville, FL, and Deborah Zuckerman of AARP Foundation, Washington, D.C., on behalf of AARP, National Association of Consumer Advocates and National Consumer Law Center, for Amici Curiae.
   ANSTEAD, J.

We have for review the decision in Betts v. McKenzie Check Advance of Florida, LLC, 879 So.2d 667 (Fla. 4th DCA 2004), which certified conflict with the decision in Betts v. Ace Cash Express, Inc., 827 So.2d 294 (Fla. 5th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue before this Court is whether chapter 560, Florida Statutes (Supp.1994), which is titled the “Money Transmitters’ Code” (herein referred to as “the Code”), authorized certain financial transactions referred to as deferred presentment transactions. We approve the holding of the Fourth District in McKenzie that the Legislature did not approve or authorize such transactions when it created the Code in 1994 and that these transactions are, in effect, loans subject to Florida’s usury laws. We disapprove of the Fifth District’s contrary holding in Ace Cash.

FACTS AND PROCEDURAL HISTORY

The factual transactions that gave rise to the present dispute are summarized in the Fourth District’s opinion:

Betts’s business relationship with NCA [National Cash Advance] began in August 1997 when she gave NCA two checks, each in the amount of $115. In return, she received $200 in cash and NCA’s promise to defer presentment of the checks for a specified time. Approximately one week later, Betts redeemed the checks for cash. Less than one week later, Betts gave NCA three more checks, each for $115, in exchange for $300 and the same promise by NCA. Approximately two weeks later, Betts replaced the checks with three new checks, which she ultimately replaced with cash two weeks thereafter. A number of similar transactions subsequently took place, with Betts continuing to replace one check with another check, each time paying a fee, until December 1997 when she redeemed all checks with cash.

McKenzie, 879 So.2d at 668-69 (Fla. 4th DCA 2004) (footnote omitted). A similar, although not identical, set of circumstances was presented in Ace Cash, 827 So.2d at 294. Following a trial court decision against Betts based on the Fifth District’s earlier decision in Ace Cash, the Fourth District reversed and held that the deferred payment transactions between Betts and NCA were essentially loan transactions and were not authorized with the Legislature’s enactment of the Money Transmitters’ Code in 1994. McKenzie, 879 So.2d at 674-75. The Fourth District decided that the short-term loan agreements entered into between Betts and NCA contrasted sharply with the check cashing transactions authorized by the Code:

There is no question that what takes place is something more than simple check cashing. In a deferred presentment transaction, the customer is advanced money in exchange for a check which the lender agrees not to immediately cash. In exchange for agreeing to defer presentment of the check, the lender exacts a fee. As Betts argues in this case, one might wonder why anyone would utilize the services of a “check casher” and pay for what he or she could otherwise obtain for free at a bank. Clearly, it is because the customer does not have the funds readily available to honor the check. Thus, there can be no question that what takes place is essentially an advance of money or a short-term loan.

McKenzie, 879 So.2d at 672. The Fourth District certified that its holding was in conflict with the Fifth District’s holding in Ace Cash, and this review follows.

BACKGROUND

As outlined in the Fourth District’s opinion, the Florida Legislature enacted the Money Transmitters’ Code in 1994. This Code sought to regulate the practices of the money transmitter industry, including check cashing. The Code’s definition of “money transmitter” referred to “any person located in or doing business in this state who acts as a payment instrument seller, foreign currency exchanger, check casher, or funds transmitter.” § 560.103(10), Fla. Stat (Supp.1994). The Code defined “check casher” as “a person who, for compensation, sells currency in exchange for payment instruments received, except travelers checks and foreign-drawn payment instruments.” § 560.103(3). “Sell” was defined as “to sell, issue, provide, or deliver.” § 560.103(19). A “payment instrument” meant “a check, draft, warrant, money order, travelers check or other instrument or payment of money, whether or not negotiable.” § 560.103(14). Moreover, “cashing” was defined as “providing currency for payment instruments, except for travelers checks and foreign-drawn payment instruments.” § 560.302(1). Finally, the Department of Banking and Finance was charged with interpreting and enforcing the Code. §§ 560.102(1), 560.105.

The following year, on February 24, 1995, the Florida Check Cashiers Association (FCCA), a group representing the Florida check cashing industry, solicited and received an informal opinion letter from the Department of Banking and Finance concerning certain deferred check cashing practices. The Department’s letter stated that “Chapter 560, Florida Statutes, does not explicitly prohibit the concept of deferred deposits” so long as the service would be offered and managed in accordance with the provisions and fee caps of the Code.

Subsequently, on September 24, 1997, the Department adopted rules regulating check cashing transactions. These rules permitted a check casher to accept a postdated check, and capped the transaction fees for such transactions at ten percent and the verification fees at five dollars. Fla. Admin. Code R. 3C-560.801 (transferred to R.69V-560.801), 3C-560.803 (repealed 2001), and 3C-560.905 (transferred to R.69V-560.905).

On May 5, 1998, the Department sent a letter to Advance America, Cash Advance Centers of Florida, Inc., regarding cashing checks, fees associated with deferred deposit checks, and rollover transactions of deferred deposit checks. This letter stated that customers cashing checks must receive currency, not another check or other type of payment instrument. In referencing deferred presentment transaction practices, the letter described the limitations on fees that can be charged by check cashers and explicitly referenced Florida’s Usury Law in section 687.02, Florida Statutes (1997), stating that “it is illegal to charge a higher rate of interest than 18 percent per annum simple interest. Any ‘rollover,’ ‘extension’ or ‘renewal’ of a deferred deposit check for an additional fee may constitute interest.” In the final paragraph of the letter, the Department put Advance America on notice that the Department would fully enforce chapter 560 and that Advance America should “refrain from issuing payment instruments [for which it is] not properly licensed.”

On May 1, 2000, the Florida Attorney General’s Office issued an advisory legal opinion to the Comptroller of Florida in response to the question: “Are so-called ‘payday loans’ or like transactions subject to the state laws prohibiting usurious rates of interest?” Op. Att’y Gen. Fla. 00-26 (2000). The opinion stated:

“Payday loans” or like transactions are subject to the state laws prohibiting usurious rates of interest. A company registered under Chapter 560, Florida Statutes, may cash personal checks for the fees prescribed in that chapter without violating the usury laws only if such transactions are concluded and are not extended, renewed or continued in any manner with the imposition of additional fees.
Thus, to the extent that a transaction comports with the provisions of this act [chapter 560], it would not violate the usury provisions in Chapter 687, Florida Statutes. In the absence of statutory authorization for these types of transactions, cashing a check or exchanging currency for a fee outside the scope of Chapter 560, Florida Statutes, would constitute a loan, subject to the usury provisions of Chapter 687, Florida Statutes.

Op. Att’y Gen. Fla. 00-26 (2000).

In 2001, Betts filed an administrative challenge to Department rule 3C-560.803, Fla. Admin. Code, claiming that the rule, in seeming to authorize the acceptance of postdated checks by a check casher, was an invalid exercise of delegated legislative authority; furthermore, the rule improperly enlarged, modified, or contravened specific provisions of the Code it was meant to implement. After a hearing, an Administrative Law Judge (ALJ) upheld the rule, finding it did not enlarge, modify, or contravene the Code and it was a proper exercise of delegated legislative authority. Betts v. Dep’t of Banking & Fin., No. 01-1445RX (Fla. DOAH order filed Sept. 7, 2001). However, the ALJ concluded that the Department’s rule did not authorize deferred deposit transactions or the fees to be charged for such transactions. Id. The order stated that “[t]he Department has no rule, order, or declaratory statement authorizing deferred deposit transactions or repeated, consecutive deferred deposit transactions by a registered check casher.” Id. at 11. Moreover, the order stated that “[t]he rule does not establish the fees nor does it authorize ‘rollover transactions’ or ‘payday loans.’ ” Id. at 32.

In 2001, the Legislature amended the Code toexpressly permit deferred presentment transactions subject to certain limitations and to prohibit rollover transactions. See Deferred Presentment Act, ch. 2001-119, § 18, Laws of Fla. (codified at §§ 560.401-408, Fla. Stat. (2001)). A “deferred presentment transaction” is defined in the amendment as “providing currency or a payment instrument in exchange for a person’s check and agreeing to hold that person’s check for a period of time prior to presentment, deposit, or redemption.” § 560.402(6). In the amended version of the statute, the Legislature expressly authorized deferred presentment transactions subject to the lender’s compliance with strict record-keeping, notice, and Truth-in-Lending disclosure requirements. See § 560.404. The statute limits the face amount of the check taken for deferred presentment to not more than $500 and caps the fee for such transactions at ten percent. § 560.404(5) — (6). The statute expressly prohibits the post-dating of checks and any rollover or extension of a deferred presentment agreement. § 560.404(12), (14), (18).

ANALYSIS

We must decide whether the Legislature intended to include the deferred presentment transactions challenged by Betts when it enacted the Code in 1994. Like the Fourth District in McKenzie and the dissent in Ace Cash, we conclude that it did not. When reading all of the statute’s terms together, we conclude that the Legislature contemplated a check casher to be a person or entity who may be compensated to provide currency in exchange for a check. We further conclude that the Legislature did not authorize deferred presentment transactions such as those involved herein until the passage of the Deferred Presentment Act in 2001. Hence, the transactions involved herein are subject to Florida usury laws. Our conclusion is based upon a plain reading of the language of the original version of the Code enacted in 1994 and a similar reading of the 2001 version of the Code, as well as the terms of Florida’s usury laws.

When construing the meaning of a statute, we must first look at its plain language. Montgomery v. State, 897 So.2d 1282, 1285 (Fla.2005). Furthermore, “[wjhen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id. (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)).

Historically, transactions involving the lending of money for a fee or at a particular rate of interest have been governed by Florida’s usury laws. See § 687.02(1), Fla. Stat. (1993) (“All contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt, or upon any obligation whatever, at a higher rate of interest than the equivalent of 18 percent per annum simple interest are hereby declared usurious.”). However, the Legislature from time to time has carved out exceptions to the usury laws. See, e.g., § 687.031, Fla. Stat. (1993) (“Sections 687.02 and 687.03 shall not be construed to repeal, modify or limit any or either of the special provisions of existing statutory law creating exceptions to the general law governing interest and usury and specifying the interest rates and charges which may be made pursuant to such exceptions .... ”). We find no exception to these laws in the enactment of the Money Transmitters’ Code in 1994.

When the Money Transmitters’ Code was enacted in 1994, it defined a “money transmitter” as “any person located in or doing business in this state who acts as a payment instrument seller, foreign currency exchanger, check casher, or funds transmitter.” § 560.103(10), Fla. Stat. (Supp.1994) (emphasis added). The Code defined “check casher” as “a person who, for compensation, sells currency in exchange for payment instruments received, except travelers checks and foreign-drawn payment instruments.” § 560.103(3) (emphasis added). The term “sell” was defined as “to sell, issue, provide, or deliver.” § 560.103(19). A “payment instrument” meant “a check, draft, warrant, money order, travelers check or other instrument or payment of money, whether or not negotiable.” § 560.103(14) (emphasis added). Moreover, the term “cashing” was also defined) in the Code as “providing currency for payment instruments, except for travelers checks and for-eigmdrawn payment instruments.” § 560.302(1). The Code’s language explicitly provides, by the use of “in exchange for” and “for,” that the check for cash transaction would be a contemporaneous one. See §§ 560.103(3), 560.302(1). For example, the statute contemplates that a person may have to pay a fee for an authorized entity to cash a check, and the entity would then give the person money in exchange for the check. Therefore, we conclude the check cashing transaction contemplated by the Code is a straightforward payment of money in exchange for a check and not an authorization to process loans outside Florida’s usury laws.

As noted above, the Code was amended by the passage of the Deferred Presentment Act in 2001. See §§ 560.401-.408, Fla. Stat. (2001). In the Deferred Presentment Act, a “deferred presentment transaction” was defined as “providing currency or a payment instrument in exchange for a person’s check and agreeing to hold that person’s check for a period of time prior to presentment, deposit, or redemption.” § 560.402(6). Moreover, “rollover” was defined as “the termination or extension of an existing deferred presentment agreement by the payment of any additional fee and the continued holding of the check, or the substitution of a new check drawn by the drawer pursuant to a new deferred presentment agreement.” § 560.402(8). Additionally, “termination of an existing deferred presentment agreement” was defined as:

[T]he check that is the basis for an agreement is redeemed by the drawer by payment in full in cash, or is deposited and the deferred presentment provider has evidence that such check has cleared. A verification of sufficient funds in the drawer’s account by the deferred presentment provider shall not be sufficient evidence to deem the existing deferred deposit transaction to be terminated.

§ 560.402(10).

Importantly, Part IV of chapter 560, as amended in 2001, imposes strict requirements for deferred presentment transactions. Most relevant to the instant case is section 560.404(14), which states, “No deferred presentment provider or its affiliate may accept or hold an undated check or a check dated on a date other than the date on which the deferred presentment provider .agreed to hold the check and signed the deferred presentment transaction agreement.” Additionally, section 560.404(18) states:

No deferred presentment provider or its affiliate may engage in the rollover of any deferred presentment agreement. A deferred presentment provider shall not redeem, extend, or otherwise consolidate a deferred presentment agreement with the proceeds of another deferred presentment transaction made by the same or an affiliated deferred presentment provider.

Furthermore, section 560.404(19) provides:

A deferred presentment provider may not enter into a deferred presentment transaction with a person who has an outstanding deferred presentment transaction with that provider or with any other deferred presentment provider, or with a person whose previous deferred presentment transaction with that provider or with any other provider has been terminated for less than 24 hours.

Like the Fourth District in McKenzie and Judge Griffin’s dissent in Ace Cash, we conclude that the Legislature did not intend for deferred presentment transactions to be covered under the Money Transmitters’ Code until it expressly added the Deferred Presentment Act in 2001.

In fact, this reading of the plain language of the statute is well articulated in Judge Griffin’s dissent in Ace Cash:

The fact that Chapter 560, which regulates check cashing operations, does not expressly prohibit rollovers and deferred presentments, does not mean that the usury laws are not violated by such devices. The legislature is to be forgiven for not having the foresight to prohibit or regulate the “uncashing” of a cashed check. Nor am I persuaded that the passage of the “Deferred Presentment Act” in October 2001 was intended by the legislature to confirm the prior legality of the practice. Indeed, it appears the legislation undertook to regulate and limit these schemes. Further, the statute appears to recognize that these transactions are, in fact, loans.

Ace Cash, 827 So.2d at 299 (Griffin, J., dissenting). We conclude that if the Legislature had intended to carve out such an important exception to the usury laws in 1994, it would have expressly done so, as it did with the 2001 amendment.

Sometimes it may be appropriate to consider a subsequent amendment to clarify original legislative intent of a statute if such amendment was enacted soon after a controversy regarding the statute’s interpretation arose. Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985). However, the Fourth District decided ' that it is inappropriate to use an amendment for this purpose when the amendment was enacted seven years after the original statute. McKenzie, 879 So.2d at 674; see also Parole Comm’n v. Cooper, 701 So.2d 543, 544-45 (Fla.1997) (concluding that ten years is too long to be an affirmation of prior legislative intent). We agree.

In this case, the Legislature enacted the 2001 version of the Code seven years after the 1994 version. As with the ten-year gap in Cooper, we conclude that seven years is too long to view the amendment as merely a clarification of legislative intent. It is telling that nowhere within the original version of the Code did the Legislature mention these types of transactions. Moreover, the usury laws, which existed at the time the Code was enacted, have a general application to “[a]ll contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt.” § 687.02, Fla. Stat. (1997). As a result, like the Fourth District and Judge Griffin, we conclude that the deferred deposit transactions involved herein are not “check cashing” transactions and are not governed by the Money Transmitters’ Code enacted in 1994. Instead, these transactions are “contracts for the payment of interest upon any loan” and subject to Florida’s usury laws.

Finally, we find it persuasive that courts in other states have held that deferred presentment transactions are loans. See, e.g., Hamilton v. York, 987 F.Supp. 953, 956 (E.D.Ky.1997) (deciding that the deferred-repayment transactions “were nothing more than interest bearing loans”); Austin v. Alabama Check Cashers Ass’n, Nos. 1011907 & 1011930, — So.2d --•, -, 2005 WL 3082884, at ⅜21 (Ala. Nov.18, 2005) (concluding that deferred presentment transactions were loans subject to the Alabama Small Loan Act); White v. Check Holders, Inc., 996 S.W.2d 496, 500 (Ky.1999) (holding that the legislature did not intend for deferred deposit businesses to come under the law when it passed Kentucky Revised Statutes section 368.100(2) to allow check cashing businesses to charge fees without implicating usury laws).

The facts of the instant case are strikingly similar to those in White. In 1992, the Kentucky General Assembly enacted Kentucky Revised Statutes chapter 368, allowing check cashing businesses to charge a fee for cashing checks without implicating Kentucky’s usury laws. White, 996 S.W.2d at 497. The transactions in that case involved the use of an order instrument “payable on demand and drawn on a bank” to evidence the promise of a debt due at a later time. Id. In White, the court addressed the following issue:

When a check cashing company licensed under KRS 368 et seq. accepts and defers deposit on a check pursuant to an agreement with the maker of the check, is the service fee charged by the check cashing company a “service fee” and not “interest” under KRS 368.100(2), or is the fee “interest” which is subject to the usury laws and disclosure provisions in KRS Chapter 360?

Id. The Kentucky Supreme Court held that the General Assembly did not intend for section 368.100(2) to encompass short-term loans based upon deferred deposit transactions as well as check cashing from current funds. Id. at 499. The Court decided that deferred deposit businesses did not come under the Code. Id. Furthermore, the Court noted that if the 1992 Act had applied to deferred deposit transactions, there would have been no need for the General Assembly to have amend the statute in 1998 to include these types of transactions. Id.

CONCLUSION

In conclusion, we hold that the original version of the Code did not include deferred presentment transactions. Therefore, at the time the transactions between Betts and NCA took place, the legality of such transactions was governed by Florida’s usury laws. Accordingly, we approve the Fourth District’s essential holding in McKenzie on this issue, and disapprove the Fifth’s District decision in Ace Cash. We decline to consider other issues raised by the parties.

It is so ordered.

WELLS, LEWIS, QUINCE, and BELL, JJ., concur.

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

PARIENTE, C.J., recused.

CANTERO, J.,

concurring in part and dissenting in part.

Although the majority does not distinguish between pure deferred presentment transactions and rollover transactions, I see great differences between them. More importantly, so did the Department of Banking and Finance — the agency charged with implementing the statute we interpret. As I explain in more detail below, a deferred presentment transaction is one in which the check casher agrees not to “present” the customer’s check to the bank until a later date; a rollover transaction is one in which the customer returns- — -sometimes more than once — and pays another fee to extend the period of deferment, usually by exchanging the previously “cashed” check for a new one. I agree with the majority that rollover transactions are essentially loans, and therefore are subject to the usury statute (this, incidentally, was also the Department’s conclusion). I disagree, however, to the extent the majority holds that pure deferred presentment transactions are loans as well. Consistent with our many precedents deferring to an implementing agency’s reasonable interpretation of a statute, I would defer to the Department, which concluded that the term “check cashing” includes deferred presentment transactions unless they involve a rollover for an additional fee. This interpretation reasonably clarifies a statutory ambiguity and falls squarely within the Department’s area of expertise.

I. The Statutory Ambiguity

The issue in this case is whether the term “check cashing” in the Money Transmitters’ Code — chapter 560, Florida Statutes (1997) — encompasses deferred presentment transactions. In a normal check-cashing transaction, the customer presents the check-cashing company with a check (sometimes a paycheck received that day), and in exchange receives cash. The majority finds nothing wrong with such transactions. Deferred presentment transactions are check-cashing transactions with a twist: like normal transactions, the customer receives cash in exchange for a check, but instead of having authority to cash the check immediately, the company, for a fee, agrees not to present the check to the bank for a specified period of time.

Some deferred presentment transactions present yet another wrinkle: the customer enters into a so-called “rollover” transaction. These come in three main types: (1) the customer pays an additiohal fee in cash, and the check casher agrees to defer presentment for an even longer period; (2) the customer pays an additional fee and replaces the first check with a new one, presentment of which is also deferred; or (3) the customer redeems the earlier check with cash and then promptly writes a new check for deferred presentment, in exchange for which the cash — minus an additional fee — is returned. As scholars have noted, all of these rollovers achieve the same result: “a continuous flow of interest-only payments at very short intervals that never reduces the principal.” Lynn Drysdale & Kathleen E. Keest, The Two-Tiered Consumer Financial Services Marketplace: The Fringe Banking System and its Challenge to Current Thinking About the Role of Usury Laws in Today’s Society, 51 S.C. L.Rev. 589, 601 (2000).

Before 2001, when the Legislature passed the Deferred Presentment Act specifically addressing deferred presentment transactions, see ch. 2001-119, § 13, Laws of Fla., the Money Transmitters’ Code did not mention them. It merely discussed check cashing in general, which it defined as “providing currency for payment instruments, except for travelers checks and foreign-drawn payment instruments.” § 560.302(1), Fía. Stat. (1997). Thus, if deferred presentment transactions qualified as check cashing, they were subject to the Code’s fee structure. See id. §§ 560.301-.310. If not, then they were effectively loans subject to Florida’s longstanding usury laws. See id. § 687.02(1) (“All contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt, or upon any obligation whatever, at a higher rate of interest than the equivalent of 18 percent per annum simple interest are hereby declared usurious.”).

The majority concludes from the plain language of the Code that all deferred presentment transactions — whether completed or rolled over — fall outside the definition of “check cashing.” Majority op. at 1209-10, 1211. According to the majority, they are simply disguised loans that must comply with the usury laws. Id. at 1211. I beg to differ. I do not agree that all deferred payment transactions are the same. To the contrary, as I explain below, the agency charged with implementing the Code has reasonably interpreted it as including pure deferred presentment transactions but excluding rollovers. I would defer to the agency’s interpretation.

II. The Agency’s Interpretation

The agency with “general regulatory powers” under the Money Transmitters’ Code is the Department of Banking and Finance, which has express statutory authority “to issue and publish rules ... to interpret and implement the provisions of the code,” as well as the “discretion to effectuate the purposes, policies, and provisions of the code.” § 560.105(3), Fla. Stat. (1997). This authority, however, is limited. The Department may exercise “[ojnly such rulemaking power and administrative discretion ... as is necessary, in order that' the supervision and regulation of money transmitters may be flexible and readily responsive to changes in economic conditions, in technology, and in money transmitter practices.” Id. § 560.102(2)(h).

On many occasions, the Department exercised its authority by evaluating whether the Code authorized deferred presentment transactions. First, in February 1995, the Department wrote to Florida’s check-cashing association stating that it saw “no reason to object” to deferred presentment transactions, provided that they adhered to the Code’s fee limitations for check-cashing transactions. See Letter from Jeffrey D. Jones, Asst. Gen. Counsel, Office of Comptroller, to Larry F. Lang, President, Fla. Check Cashiers Ass’n, Inc., at 1 (Feb. 24, 1995). The letter cautioned, however, that it was “not a rule, declaratory statement or final order,” but rather an informal opinion by which the Department would not consider itself bound. Id.

In September 1997, the Department promulgated a formal rule addressing deferred presentment transactions. The rule provided that “[a] check casher may accept a postdated check, subject to the fees established in Section 560.309(4), F.S.” Fla. Admin. Code R. 3C-560.803 (1997). As a logical corollary, the rule also allowed the check casher to wait until the specified date to cash the check. This is because the customer has the ability, by notifying the bank in writing of the postdated check, to prevent it from being cashed early. § 655.86, Fla. Stat. (1997). Unless the Department intended for check cashers to accept postdated checks without ever cashing them, which seems absurd, it must have intended to allow deferred presentment of postdated checks.

The majority dismisses the rule because none of the respondent’s transactions involved a postdated check; all of her checks were presently dated. But that is too formalist a reading of the rule. No functional difference exists between a postdated check and a presently dated check whose presentment is deferred. In one case, the agreement to defer is noted on the check itself; in the other, it is contained in a separate document. The agreements are effectively the same. Thus, the most logical reading of the Department’s rule is that check cashing encompasses transactions in which the check casher waits for an agreed-upon period before cashing the customer’s check. See Betts v. McKenzie Check Advance of Fla., LLC, 879 So.2d 667, 671 (Fla. 4th DCA 2004) (stating that the rule “expressly approved deferred presentment transactions subject to certain restrictions”).

Even if the rule did leave some ambiguity, however, it was clarified a few months later. In a letter of advice to Florida check cashers in May 1998, the Department explained, as the rule implied, that deferred presentment transactions were subject to the Code’s check-cashing fee structure. But the Department cautioned that when a deferred presentment transaction is rolled over, extended, or renewed for an additional fee, the additional fee may constitute excessive interest under the usury laws. See Letter from Wm. Douglas Johnson, Asst. Dir., Div. of Banking, Dep’t of Banking and Fin., to Billy Webster, President/CEO, Advance Am. Cash Advance Ctrs. of Fla., Inc., at 1 (May 5, 1998). In other words, a deferred presentment transaction only counts as check cashing when it is consummated by the actual cashing of the check or cash redemption.

Two years later, the Department asked the Attorney General for his opinion on the matter. We have long recognized that “[ajlthough an opinion of the Attorney General is not binding on a court, it is entitled to careful consideration and generally should be regarded as highly persuasive.” State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993). Reaching the same conclusion as the Department, the Attorney General opined that a check casher registered under the Code “may cash personal checks for the fees prescribed in [the Code] without violating the usury laws only if such transactions are concluded and are not extended, renewed or continued in any manner with the imposition of additional fees.” Op. Atty. Gen. Fla. 00-26 (2000).

Finally, in April 2001, the respondent challenged the Department’s rule in an administrative proceeding. The administrative law judge dismissed her petition, explaining that nothing in the Code “prohibits the check casher from holding the customer’s check for an agreed-upon period of time.” Betts v. Dep’t of Banking & Fin., No. 01-1445RX at 27 (Fla. Div. Admin. Hearings Sept. 7, 2001). While acknowledging that the Department’s rule “provides more details than the statute,” the judge concluded that it “does not enlarge, modify or contravene the language it seeks to interpret.” Id. at 30. Accordingly, the judge upheld the rule as a reasonable implementation of the statute. The respondent did not appeal. Shortly thereafter, in light of the 2001 amendments to the Code, the rule was repealed.

In summary, the Department has consistently interpreted the Code’s term “check cashing” as including deferred presentment transactions unless they involve a rollover, extension, or renewal for an additional fee. This policy was stated informally in 1995 (one year after the Code’s enactment), was formalized into a rule in 1997, was further explained in a formal letter in 1998, was embraced by the Attorney General in 2000, and finally was upheld by an administrative law judge in 2001, just before the Code was amended. The interpretations were consistent. Some of the transactions in this case occurred in 1997, the year before the Department made its position absolutely clear in the formal letter. But the letter did not represent a change in Department policy. It merely confirmed the Department’s consistent position, as already expressed (less clearly) in the informal opinion and the formal rule.

We have not required that, to be entitled to deference, an agency’s statutory interpretation be exhaustively articulated in a formal rule. To the contrary, we have deferred to a rule supported by an affidavit from an agency official who attested after the fact that the Department of Revenue had “consistently maintained [a] policy” since the inception of a given tax. Dep’t of Revenue v. First Union Nat’l Bank of Fla., 513 So.2d 114, 119 (Fla.1987). Thus, when we have reliable evidence that the implementing agency maintained a consistent interpretation of its statute during the time the statute was in effect — as is the case here — that interpretation should be followed if it meets the requirements for administrative deference. I now address that issue.

III. The Doctrine of Administrative Deference

We have long recognized that “the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized.” Gay v. Canada Dry Bottling Co. of Fla., 59 So.2d 788, 790 (Fla.1952) (quoting Coco-Cola Co. v. State Bd. of Equalization, 25 Cal.2d 918, 156 P.2d 1, 2 (1945)). Stated positively, this doctrine means that “a reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985).

Courts defer to the implementing agency out of respect for the institutional competence and expertise of agencies charged with implementing legislation. Agencies have more expertise about matters within their jurisdiction than courts, which consider a wide variety of issues. While the courts always remain the final authority on the interpretation of statutes — an authority that, under the separation of powers in the Florida Constitution, no Legislature may remove — we certainly can benefit from an agency’s unique combination of technical knowledge and practical experience. The Legislature, by authorizing an agency to implement a statute, encourages us to “accord[ ] considerable persuasive force” to the agency’s judgments. State ex rel. Szabo Food Servs., Inc. of N.C. v. Dickinson, 286 So.2d 529, 531 (Fla.1973). We have done just that. Under our precedents, “deference usually will be accorded an administrative agency’s interpretation of matters entrusted by statute to its discretion or expertise.” Palm Harbor Special Fire Control Dist. v. Kelly, 516 So.2d 249, 250 (Fla.1987) (citing Pub. Employees, 467 So.2d at 987, and Daniel v. Fla. State Tpk. Auth., 213 So.2d 585 (Fla.1968)).

Although we occasionally depart from agency interpretations, it is only “for the most cogent reasons.” Fidelity Constr. Co. v. Arthur J. Collins & Son, Inc., 130 So.2d 612, 613 (Fla.1961) (citing Gay, 59 So.2d at 790). We do not defer to an agency’s interpretation that attempts “to enlarge, modify, or contravene a statute.” Campus Commc’ns, Inc. v. Dep’t of Revenue, 473 So.2d 1290, 1296 (Fla.1985) (internal quotation marks omitted). The Administrative Procedure Act, not to mention the separation of powers, prohibits such actions. See § 120.52(8)(c), Fla. Stat. (2005) (stating that a rule is invalid if it “enlarges, modifies, or contravenes the specific provisions of law implemented”). We also do not defer to an agency when it “exceeds its authority” by “actfing] outside the scope of its powers and jurisdiction.” Level 3 Commc’ns, LLC v. Jacobs, 841 So.2d 447, 450 (Fla.2003). Only the agency charged with implementing the statute is entitled to our deference, and only when acting as the Legislature authorized it to act.

But for these narrow exceptions, however, we defer to the implementing agency’s interpretation of the statute. The majority gives no hint that these exceptional circumstances are present in this case. As I explain below, they are not.

IV. Deferring to the Agency in this Case

As I mentioned, the Department of Banking and Finance is the agency charged with enforcing and interpreting the Money Transmitters’ Code. The Department interpreted the Code’s term “check cashing” to include some, but not all, deferred presentment transactions. Under the doctrine of administrative deference, we must defer to this interpretation as long as it is within the scope of the Department’s authority and is consistent with the statute. I address each requirement separately.

The Department’s interpretation falls within its scope of authority to implement the Code. The statute provides that the Department may exercise “[o]nly such rulemaking power and administrative discretion ... as is necessary, in order that the supervision and regulation of money transmitters may be flexible and readily responsive to changes in economic conditions, in technology, and in money transmitter practices.” § 560.102(2)(h), Fla. Stat. (1997). Here, the Department’s interpretation surely meets that test of necessity. After the Code was enacted, the check-cashing industry asked the Department to explain whether check cashing included deferred presentment transactions. These transactions were very similar to ordinary check cashing, but involved the additional element of delay in cashing the check. For the regulation of money transmitters to remain “flexible and readily responsive to changes ... in money transmitter practices,” id., the Department absolutely needed to determine whether deferred presentment transactions qualified as check cashing. These were precisely the circumstances in which the Legislature intended for the Department to exercise its authority.

The other factor in deciding whether to defer to the Department is whether its interpretation enlarged, modified, or contravened the statute. It did none of those things. Rather, it reasonably clarified a statutory ambiguity. The Code contained only general references to check cashing, which it defined as “providing currency for payment instruments.” Id. § 560.302(1). At the time, the Code did not mention deferred presentment transactions. Such transactions, however, possess all the attributes of check cashing mentioned in the Code: the customer receives currency in exchange for a payment instrument (albeit one that will not be presented until a later date). The Department, faced with this ambiguity, interpreted check cashing to include deferred presentment transactions, except if they result in a rollover for an additional fee.

Where a statute is silent, we have traditionally allowed agencies to determine how a general statutory directive should be applied to specific circumstances. As we explained in General Telephone Co. of Florida v. Marks, 500 So.2d 142 (Fla.1986): “The legislature cannot be expected to foresee and make provision for every possible type of [situation].... Some discretion must be given to regulatory bodies to promulgate the detailed rules that expand upon and implement legislative directives.” Id. at 145. In Marks, the Legislature had stated in general terms that the agency could make a certain calculation. We explained that “[u]nless there is something else directly contrary in the statute itself, we must assume the legislature intended to grant the commission the discretion to determine what factors should be used in calculating [the figure].” Id. We have continued to apply this logic in more recent cases. See, e.g., Level 3 Commc’ns, 841 So.2d at 453-54 (quoting Marks). We should apply it in this case as well, where the Department applied a general statutory provision to specific facts.

While not the only plausible reading of the Code, the Department’s interpretation is the most natural one. Check cashing is designed to place currency in the customer’s hands faster than otherwise feasible, in exchange for a fee that compensates the check casher for its efforts and assumption of risk. See Michael S. Barr, Banking the Poor, 21 Yale J. on Reg. 121, 142, 145 (2004) (explaining that check cashers mostly accept “low-risk payroll or government benefit checks” from customers who lack a bank account or who “find, that they lack sufficient liquidity to wait the two-to-three days for their bank to clear access to funds from a deposited check”). In an ordinary check-cashing transaction, the check cash-er may present the check as soon as possible. But nothing in the statute dictates when the check must be cashed or prohibits the parties from negotiating on that point. A deferred presentment transaction merely lengthens the time between the customer’s receipt of currency and the company’s cashing of the check. As long as the check casher ultimately presents the check to a bank at the end of the deferral period, or at least receives full payment in cash from the customer, the transaction remains so similar to ordinary check cashing that the most sensible reading of the statute is to treat them the same.

When a customer instead returns to the check casher and rolls over the initial transaction, paying another fee to extend the period for actual payment, the transaction looks less like check cashing and more like a traditional loan. The Department sensibly concluded that rollover transactions — however styled or disguised — go beyond mere check cashing and cannot be squeezed within the Code. Instead, they must adhere to the interest restrictions established by the usury statute. This distinction between completed transactions and rollovers is so persuasive that I would adopt it even on de novo review. That it comes directly from the statute’s implementing agency clinches the matter. At the very least, the Department’s interpretation deserves our deference. To the extent the majority refuses to defer, I respectfully dissent.

      . We decline to address the issue of whether National Cash Advance (NCA) is entitled to the protection of the safe harbor provision, section 560.107, Florida Statutes (Supp. 1994).

      . The Florida Check Cashiers Association is now known as Financial Service Centers of Florida, Inc.

      . Florida Administrative Code Rule 3C-560.803 provided, "A check casher may accept a postdated check, subject to the fees established in Section 560.309(4), F.S." This rule only permitted postdated checks in check cashing transactions. Because there were no postdated checks in this case, we need not address the issue of whether the Department had the authority to promulgate this rule.

      . At oral argument, McKenzie’s counsel conceded that these transactions were "a species of loans” and "a form of a loan.”

      . These deferred presentment transactions are sometimes called "payday loans,” "cash advance loans,” "delayed deposit transactions,” or "postdated check loans,” among other things.

      . The petitioner in this case stopped engaging in rollover transactions (at least the first and second types) in 1998, when the Department expressly stated in a letter of advice that such transactions constituted usurious loans.

      . As one district court has noted, "[t]he usury statutes were in existence at the time Chapter 560 was created and the legislature must be presumed to have been aware of them when it enacted legislation allowing the transactions to take place.” Fastfunding the Co. v. Betts, 852 So.2d 353, 355 (Fla. 5th DCA 2003). Thus, a transaction that complies with the Code "should not be deemed to be in violation of Florida's usury laws.” Id.

      . Before the statutory amendment, the Department was considering a proposed rule that would have expressly stated that "[a]ny agreement to extend, renew or continue a check cashing transaction in any manner, including the substitution of a new check drawn by the drawer, if coupled with the imposition of any fees, compensation, or any other benefit, is outside the scope of [the Code].” 27 Fla. Admin. Weekly 651-52 (Feb. 16, 2001). In light of the statutory amendments, the proposal was withdrawn. 27 Fla. Admin. Weekly 2841 (June 15, 2001).

      . Florida is by no means unique in deferring to agency interpretations of a statute the agency is charged with implementing. Both the federal courts, see Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and the vast majority of states share these principles. See, e.g., Manchester Sch. Dist. v. Crisman, 306 F.3d 1, 9 (1st Cir.2002) (noting that "most states ... give[ ] some deference to the reasonable interpretation of a state statute by the state administrative agency charged with the responsibility of enforcing that statute”).


text:
    ADVISORY OPINION TO the GOVERNOR re SHERIFF AND JUDICIAL VACANCIES DUE TO RESIGNATIONS.
    No. SC06-668.
    Supreme Court of Florida.
    May 4, 2006.
    Raquel A. Rodriguez, General Counsel, Office of the Governor, Tallahassee, FL, for Petitioner, The Honorable Jeb Bush.
    Mark Herron and Robert J. Telfer of Messer, Caparello and Self, P.A., Tallahassee, FL, for The Florida Democratic Party-

      Vicki Levy Eskin, pro se, of Levy and Associates, P.A., Lake Mary, FL, for Interested Party, as a Candidate for Circuit Court Judge, Group 12, Eighteenth Judicial Circuit.
    Jack E. Holt, III, pro se, of Grower, Ketcham, Rutherford, Bronson, Eide, and Telan, P.A., Orlando, FL, for Interested Party or as an Amicus Curiae, as a Candidate for Circuit Court Judge, Group 12, Eighteenth Judicial Circuit.
   The Honorable Jeb Bush

Governor, State of Florida

The Capitol

Tallahassee, Florida 32399

Dear Governor Bush:

By letter dated April 19, 2006, you requested our opinion on two questions of constitutional interpretation involving your executive powers and duties. This request and our response are pursuant to article IV, section (l)(c) of the Florida Constitution. One question involves a judicial vacancy created by the resignation of a circuit court judge. The other question pertains to a vacancy created by the intended resignation of a county sheriff. Upon receipt of your letter, we issued an order allowing interested parties to file briefs on an expedited basis. We address your questions regarding the judicial vacancy and sheriff vacancy separately below.

JUDICIAL VACANCY

You state in your letter that Judge Gene R. Stephenson, who is serving a term that expires on January 2, 2007, tendered his resignation on April 5, 2006, with a future effective date of May 31, 2006. You accepted his resignation on April 14, 2006.

Because Judge Stephenson’s seat would have been up for election this year had he not tendered his resignation, the Department of State sent out the statutory notice of general election for this vacancy on April 12, 2006. The qualifying period for this seat is from May 8, 2006, through May 12, 2006. See § 105.031(1), Fla. Stat. (2005) (“Candidates for judicial office shall qualify no earlier than noon of the 120th day, and no later than noon of the 116th day, before the primary election.”). Your question is whether Judge Stephenson’s seat should be filled by appointment or election. We are of the opinion that this vacancy should be filled by appointment.

Under article V, section 11(b) of the Florida Constitution the Governor is required to

fill each vacancy on a circuit court or on a county court, wherein the judges are elected by a majority vote of the electors, by appointing for a term ending on the first Tuesday after the first Monday in January of the year following the next primary and general election occurring at least one year after the date of appointment....

Article X, section 3 of the Florida Constitution addresses when a vacancy occurs and provides:

Vacancy in office shall occur upon the creation of an office, upon the death, removal from office, or resignation of the incumbent or the incumbent’s succession to another office, unexplained absence for sixty consecutive days, or failure to maintain the residence required when elected or appointed, and upon failure of one elected or appointed to office to qualify within thirty days from the commencement of the term.

(Emphasis supplied.) Under our precedent, a judicial vacancy occurs when a letter of resignation is received and accepted by the Governor. See In re Advisory Opinion to the Governor (Judicial Vacancies), 600 So.2d 460, 462 (Fla.1992) (“When a letter of resignation to be effective at a later date is received and accepted by you, a vacancy in that office occurs and actuates the process to fill it.”).

In our most recent advisory opinion to you, we opined that a judicial vacancy created by an immediate involuntary retirement after candidates had qualified for the judgeship should be filled by the election process. See Advisory Opinion to the Governor re Appointment or Election of Judges, 824 So.2d 132, 136 (Fla.2002). In that case, we framed the issue as “whether your constitutional authority and obligation to fill a vacancy pursuant to section 11(b) continues after the election process begins for the specific election of a circuit or county judge for the term which will begin in January after the impending election.” Id. at 135. We noted that there was a conflict between article V, section 11(b) and article V, section 10(b)(1), (2), and (3)(c), Florida Constitution, which expressly preserves the election process for circuit and county judges. See id. at 134-35. We then concluded that “the conflict must be resolved by a construction which gives effect to the clear will of the voters that circuit and county judges be selected by election.” Id. at 136. However, we emphasized that our opinion was “limited to the circumstances described in your letter, i.e., where a candidate or candidates have already qualified during the statutory qualifications period, one of whom will fill the position by election.” Id. We also distinguished Pincket v. Harris, 765 So.2d 284, 284-85 (Fla. 1st DCA 2000), in which the First District Court of Appeal concluded that gubernatorial appointment was appropriate when the sitting judge’s resignation letter was submitted and the effective date of the resignation occurred prior to the qualifying period. See Appointment or Election of Judges, 824 So.2d at 136 n. 9

The circumstances in this case are more akin to those presented in Pincket than those presented in Appointment or Election of Judges. Although Judge Stephenson’s resignation is not effective until May 31, 2006, under our prior case law, a vacancy occurred when you received and accepted Judge Stephenson’s resignation on April 14, 2006. Because the qualifying period for Judge Stephenson’s seat has not commenced, under this Court’s decision in Appointment or Election of Judges the election process has not yet begun. Thus, we conclude that article V, section 11(b) controls over article V, section 10(b)(1), (2), and (3)(c), and the vacancy should be filled by appointment.

We are aware from the briefs filed by attorneys Eskin and Holt that even though the qualifying period for Judge Stephenson’s seat has not yet begun, several candidates have stated their intent to run, and at least one candidate has actively pursued qualification through the petition process under section 99.095, Florida Statutes (2005). The Constitution does not provide a perfect answer. However, we conclude that establishing the statutory qualifying period as the start of the election process is consistent with our precedent. Although this position will now be filled initially by appointment rather than election, the Governor’s appointment is for a limited term that concludes “on the first Tuesday after the first Monday in January of the year following the next primary and general election occurring at least one year after the date of appointment.” Art. V, § 11(b), Fla. Const. Accordingly, there will be an opportunity to fill this seat by election in 2008.

SHERIFF VACANCY

Your letter states that you were advised that the county sheriff, whose term expires on January 6, 2009, will tender his resignation in May of 2006, effective in October 2006. As noted above, article X, section 3 of the Florida Constitution provides that a “[vjacancy in office shall occur upon the ... resignation of the incumbent.” Article TV, section (l)(f) of the Florida Constitution provides that

[wjhen not otherwise provided for in this constitution, the governor shall fill by appointment any vacancy in state or county office for the remainder of the term of an appointive office, and for the remainder of the term of an elective office if less than twenty-eight months, otherwise until the first Tuesday after the first Monday following the next general election.

(Emphasis supplied.) Under this constitutional provision, you have the authority to fill by appointment the anticipated vacancy in the sheriffs office either for the “remainder of the term ... if less than twenty-eight months” or “until the first Tuesday after the first Monday following the next general election.” In other words, when a vacancy occurs in the sheriffs office your appointment will be effective either until January 6, 2009, or December 12, 2006.

You ask when the vacancy arises so that you may discern the appropriate date from which to calculate the “remainder of the term” under this provision — the date the resignation is tendered or the effective date of the resignation? In posing this question, you refer to conflicting statements in our opinions addressing judicial vacancies. You note that we have stated both that “a vacancy does not occur until the date upon which the office actually becomes vacant,” In re Advisory Opinion of the Governor Request of September 6, 1974, 301 So.2d 4, 6 (Fla.1974), and that a vacancy occurs “[wjhen a letter of resignation to be effective at a later date is received and accepted by you.” Judicial Vacancies, 600 So.2d at 462.

In Judicial Vacancies, we acknowledged our prior statement that “a vacancy does not occur until the date upon which the office actually becomes vacant.” Id. at 463 n. 4 (quoting In re Advisory Opinion, 301 So.2d at 6). However, we explained that our decision in “Spector v. Glisson, 305 So.2d 777 (Fla.1974), nullified this statement.” Judicial Vacancies, 600 So.2d at 463 n. 4. Accordingly, we are of the opinion that if the sheriff were to tender his resignation in May, a vacancy would occur at that time. Thus, the remainder of the term should be calculated from the date of the resignation letter, not its effective date.

This conclusion is consistent with the resign-to-run law. Under section 99.012(3)(a), Florida Statutes (2005), an officer cannot qualify as a candidate for another elected office without resigning from the office he or she currently holds. The resignation must be irrevocable and must be submitted “at least 10 days prior to the first day of qualifying for the office he or she intends to seek.” § 99.012(S)(b)-(c), Fla. Stat. (2005). The effective date of the resignation can be in futuro but must be “no later than the earlier of following dates: 1. the date the officer would take office, if elected, or 2. the date the officer’s successor is required to take office.” § 99.012(3)(d), Fla. Stat. (2005).

The qualifying dates for federal, judicial, state attorney, and public defender positions are generally in May of the election year, while the qualifying dates for statewide, multicounty, county, and district positions are generally in July of the election year. In either case, if the officer is seeking to qualify as a candidate for another office in an election year other than the election year in which the officer’s current position is up for election, the officer’s resignation will necessarily be submitted prior to the qualifying date, thereby creating a vacancy that is greater than twenty-eight months. Section 99.012(3)(f)(l), Florida Statutes (2005), recognizes this by providing that “[w]ith regard to an elective office, the resignation creates a vacancy in office to be filled by election.”

CONCLUSION

We answer your question about the resignation of Judge Stephenson by stating that it is our opinion that this vacancy should be filled by appointment. We answer your question about the impending resignation of the county sheriff by stating that it is our opinion that the “remainder of the term” should be calculated from the date the resignation is tendered.

Respectfully,

/s/ Barbara J. Pariente

Barbara J. Pariente

/s/ Charles T. Wells

Charles T. Wells

/s/ Harry Lee Anstead

Harry Lee Anstead

/s/ R. Fred Lewis

R. Fred Lewis

/s/ Peggy A. Quince

Peggy A. Quince

/s/ Raoul G. Cantero, III

Raoul G. Cantero, III

/s/ Kenneth B. Bell

Kenneth B. Bell

      . Article IV, section (l)(c) provides in full:
      The governor may request in writing the opinion of the justices of the supreme court as to the interpretation of any portion of this constitution upon any question affecting the governor's executive powers and duties. The justices shall, subject to their rules of procedure, permit interested persons to be heard on the questions presented and shall render their written opinion not earlier than ten days from the filing and docketing of the request, unless in their judgment the delay would cause public injury.

      . We received a brief from the Florida Democratic Party on the issue of the sheriff's vacancy. We received briefs from Vickie Levy Eskin and Jack E. Holt, III, attorneys and candidates for judge, on the issue of the judicial vacancy.

      . Even if our prior statements that a vacancy does not occur until the office is actually vacated were still valid, we have recognized that one exception to this rule is "those circumstances establishing artificial vacancies created by the resign-to-run law.” In re Advisory Opinion, 301 So.2d at 6. Although your letter does not identify the resigning sheriff, there is an indication that your request is in response to Alachua County Sheriff Steve Oel-rich’s stated intent to run for the State Senate this year.

      . See §§ 99.061(1), 105.031(1), Fla. Stat. (2005) (stating that candidates for these offices may qualify after noon of the 120th day but no later than noon of the 116th day prior to the date of the primary election); see also Florida Department of State, Division of Elections, 2006 Dates to Remember 1, 3, available at http://election.dos. state.fl.us/ publications/index. shtml.

      . See § 99.061(2), Fla. Stat. (2005) (stating that candidates for these offices may qualify after noon of the 50 th day but no later than noon of the 46th day prior to the date to the primary election); see also Florida Department of State, Division of Elections, 2006 Dates to Remember 1, 4 available at http://election.dos. state.fl.us/ publications/index. shtml.

      .Assuming that your letter is referring to Sheriff Oelrich, the sheriff must tender an irrevocable resignation no later than July 7, 2006 (ten days prior to the first day of qualifying for a Senate seat). Thus, even if Sheriff Oelrich were to tender his resignation on the last possible day (rather than in May), the remainder of the term would still be greater than twenty-eight months.


author: PER CURIAM.

text:
    T.P., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1634.
    District Court of Appeal of Florida, Fifth District.
    May 16, 2006.
    Robert Wesley, Public Defender, and Olga M. Telleria-Khoudmi, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

T.P., a juvenile, petitions for a writ of habeas corpus, contending that he is being unlawfully detained in secure detention despite a risk assessment instrument score of nine points, and that he does not otherwise satisfy the requisites for secure detention. See §§ 985.213.-215, Fla. Stat. (2005). Having considered the State’s response, we find that this matter is controlled by the holding in P.A.J. v. Gnat, 684 So.2d 310 (Fla. 1st DCA 1996). As we said in T.D.S. v. State, 922 So.2d 346, 347 (Fla. 5th DCA 2006), “[w]e sympathize with the trial judge’s frustration that there often seems to be no consequences ... in the juvenile system.... However, ... the Legislature provided in section 985.214(l)(d) that a court is prohibited from placing a child in secure detention care ‘[d]ue to a lack of more appropriate facilities.’ ”

Accordingly, the petition for writ of ha-beas corpus is granted and T.P. shall be released immediately from secure detention.

PETITION GRANTED.

ORFINGER, MONACO and TORPY, JJ., concur.


text:
    Pedro BAYRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-552.
    District Court of Appeal of Florida, Third District.
    May 17, 2006.

      Pedro Bayron, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See Grady v. State, 687 So.2d 931 (Fla. 1st DCA 1997).